MORGAN STANLEY MORTGAGE CAPITAL INC. Purchaser WACHOVIA MORTGAGE CORPORATION Seller FIRST AMENDED AND RESTATED SELLER’S PURCHASE, WARRANTIES AND SERVICING AGREEMENT Dated as of June 1, 2006
Exhibit
99.15b
Execution
Version
Purchaser
WACHOVIA
MORTGAGE CORPORATION
Seller
FIRST
AMENDED AND RESTATED SELLER’S PURCHASE, WARRANTIES AND SERVICING
AGREEMENT
Dated
as
of June 1, 2006
TABLE
OF CONTENTS
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Page
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ARTICLE
I DEFINITIONS
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1
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Section
1.01.
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Defined
Terms.
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1
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ARTICLE
II SERVICING OF MORTGAGE LOANS; RECORD TITLE AND POSSESSION OF MORTGAGE
FILES; BOOKS AND RECORDS; CUSTODIAL AGREEMENT; DELIVERY OF MORTGAGE
LOAN
DOCUMENTS
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15
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Section
2.01.
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Agreement
to Purchase.
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15
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Section
2.02.
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Purchase
Price.
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15
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Section
2.03.
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Servicing
of Mortgage Loans.
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16
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Section
2.04.
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Record
Title and Possession of Mortgage Files; Maintenance of Servicing
Files.
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16
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Section
2.05.
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Books
and Records.
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17
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Section
2.06.
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Transfer
of Mortgage Loans.
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17
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Section
2.07.
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Delivery
of Mortgage Loan Documents.
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17
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Section
2.08.
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Quality
Control Procedures.
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18
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Section
2.09.
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Closing.
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18
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ARTICLE
III REPRESENTATIONS AND WARRANTIES OF THE SELLER; REPURCHASE; REVIEW
OF
MORTGAGE LOANS
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19
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Section
3.01.
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Representations
and Warranties of the Seller.
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19
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Section
3.02.
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Representations
and Warranties as to Individual Mortgage Loans.
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22
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Section
3.03.
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Repurchase;
Substitution.
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35
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Section
3.04.
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Repurchase
of Mortgage Loans with First Payment Defaults.
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37
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Section
3.05.
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Purchase
Price Protection.
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37
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ARTICLE
IV ADMINISTRATION AND SERVICING OF THE MORTGAGE LOANS
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38
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Section
4.01.
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The
Seller to Act as Servicer.
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38
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Section
4.02.
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Collection
of Mortgage Loan Payments.
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39
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Section
4.03.
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Realization
Upon Defaulted Mortgage Loans.
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40
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Section
4.04.
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Establishment
of Custodial Accounts; Deposits in Custodial Accounts.
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41
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Section
4.05.
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Permitted
Withdrawals from the Custodial Account.
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42
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Section
4.06.
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Establishment
of Escrow Accounts; Deposits in Accounts.
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43
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Section
4.07.
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Permitted
Withdrawals from the Escrow Account.
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44
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i
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Section
4.08.
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Payment
of Taxes, Insurance and Charges; Maintenance of Primary Mortgage
Insurance; Collections Thereunder.
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45
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Section
4.09.
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Transfer
of Accounts.
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46
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Section
4.10.
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Maintenance
of Hazard Insurance.
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46
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Section
4.11.
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Maintenance
of Mortgage Impairment Insurance Policy.
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47
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Section
4.12.
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Maintenance
of Fidelity Bond and Errors and Omissions Insurance.
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47
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Section
4.13.
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Title,
Management and Disposition of REO Property.
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48
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Section
4.14.
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Notification
of Maturity Date.
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49
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ARTICLE
V PAYMENTS TO THE PURCHASER
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49
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Section
5.01.
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Distributions.
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49
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Section
5.02.
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Statements
to the Purchaser.
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50
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Section
5.03.
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Monthly
Advances by the Seller.
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51
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Section
5.04.
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Liquidation
Reports.
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51
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ARTICLE
VI GENERAL SERVICING PROCEDURES
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51
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Section
6.01.
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Assumption
Agreements.
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51
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Section
6.02.
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Satisfaction
of Mortgages and Release of Mortgage Files.
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52
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Section
6.03.
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Servicing
Compensation.
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53
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Section
6.04.
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Annual
Statement as to Compliance.
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53
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Section
6.05.
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Annual
Independent Certified Public Accountants’ Servicing
Report.
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54
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Section
6.06.
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Purchaser’s
Right to Examine Seller Records.
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54
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Section
6.07.
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Seller
Shall Provide Information as Reasonably Required.
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55
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ARTICLE
VII THE SELLER
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55
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Section
7.01.
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Indemnification;
Third Party Claims.
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55
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Section
7.02.
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Merger
or Consolidation of the Seller.
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56
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Section
7.03.
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Limitation
on Liability of the Seller and Others.
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56
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Section
7.04.
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Seller
Not to Resign.
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57
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Section
7.05.
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No
Transfer of Servicing.
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57
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ARTICLE
VIII DEFAULT
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57
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Section
8.01.
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Events
of Default.
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57
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Section
8.02.
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Waiver
of Defaults.
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59
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ARTICLE
IX TERMINATION
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59
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ii
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Section
9.01.
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Termination.
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59
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ARTICLE
X RECONSTITUTION OF MORTGAGE LOANS
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60
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Section
10.01.
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Reconstitution
of Mortgage Loans.
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60
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ARTICLE
XI MISCELLANEOUS PROVISIONS
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62
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Section
11.01.
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Successor
to the Seller.
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62
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Section
11.02.
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Amendment.
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63
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Section
11.03.
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Recordation
of Agreement.
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63
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Section
11.04.
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Governing
Law.
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64
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Section
11.05.
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Notices.
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64
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Section
11.06.
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Severability
of Provisions.
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65
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Section
11.07.
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Exhibits.
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65
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Section
11.08.
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General
Interpretive Principles.
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65
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Section
11.09.
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Reproduction
of Documents.
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66
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Section
11.10.
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Confidentiality
of Information.
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66
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Section
11.11.
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Recordation
of Assignments of Mortgage.
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67
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Section
11.12.
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Assignment
by Purchaser.
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67
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Section
11.13.
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No
Partnership.
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67
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Section
11.14.
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Execution;
Successors and Assigns.
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67
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Section
11.15.
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Entire
Agreement.
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68
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Section
11.16.
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No
Solicitation.
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68
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Section
11.17.
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Costs.
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68
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Section
11.18.
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Protection
of Mortgagor Personal Information.
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69
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EXHIBITS
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A-1
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Contents
of Mortgage File
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A-2
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Contents
of Servicing File
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B
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Form
of Custodial Account Letter Agreement
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C
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Form
of Escrow Account Letter Agreement
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D
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Form
of Assignment, Assumption and Recognition Agreement
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E
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Form
of Assignment and Conveyance
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F
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Request
for Release of Documents and Receipt
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G
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Form
of S-50Y Report
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H
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Form
of P-4DL Report
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I
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J
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Form
of Annual Certification
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iii
This
is a
First Amended and Restated Seller’s Purchase, Warranties and Servicing
Agreement, dated as of June 1, 2006 and is executed by and between Xxxxxx
Xxxxxxx Mortgage Capital Inc., as purchaser (the “Purchaser”), and
Wachovia Mortgage Corporation, as seller and servicer (in such capacity, the
“Seller”).
WITNESSETH:
WHEREAS,
the Purchaser and the Seller are parties to that certain Seller’s Purchase,
Warranties and Servicing Agreement, dated as of June 1, 2004 (the “Original
Purchase Agreement”), the Purchaser has heretofore agreed to purchase from the
Seller and the Seller has heretofore agreed to sell to the Purchaser certain
Mortgage Loans, servicing rights retained, from time to time, pursuant to the
terms of letter agreements by and between the Seller and the Purchaser (each,
a
“Purchase Price and Terms Letter”);
WHEREAS,
each of the Mortgage Loans 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 related Mortgage Loan Schedule,
which is annexed to the related Assignment and Conveyance. The
Mortgage Loans as described herein shall be delivered in groups of whole loans
(each, a “Mortgage Loan Package”) on various dates as provided herein
(each, a “Closing Date”);
WHEREAS,
the Purchaser and the Seller wish to prescribe the representations and
warranties of the Seller with respect to itself, the Mortgage Loans and the
management, servicing and control of the Mortgage Loans by the Seller;
and
WHEREAS,
at the present time, the Purchaser and the Seller desire to amend and restate
the Original Purchase Agreement to make certain modifications as set forth
herein with respect to all Mortgage Loans acquired pursuant to this Agreement
or
the Original Purchase Agreement.
NOW,
THEREFORE, in consideration of the mutual agreements hereinafter set forth,
and
for other good and valuable consideration, the receipt and adequacy of which
is
hereby acknowledged, the Purchaser and the Seller agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.01. Defined Terms.
Whenever
used in this Agreement, the following words and phrases, unless the context
otherwise requires, shall have the following meaning specified in this
Article:
Accepted
Servicing Practices: With respect to any Mortgage Loan, those
mortgage servicing practices (including collection procedures) of prudent
mortgage banking institutions which service mortgage loans of the same type
as
such Mortgage Loan in the jurisdiction where the related Mortgaged Property
is
located, and which are in accordance with Xxxxxx Mae servicing practices and
procedures, for MBS pool mortgages, as defined in the Xxxxxx Xxx Guides,
including future updates.
1
Adjustable
Rate Mortgage Loan: A Mortgage Loan as to which the related
Mortgage Note provides that the Mortgage Interest Rate may be adjusted
periodically.
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 the Mortgage Loan is adjusted in accordance with the terms of the Mortgage
Note.
Affiliate: With
respect to any specified Person, any other Person controlling or controlled
by
or under common control with such specified Person. For the purposes
of this definition, “control” when used with respect to any specified Person
means the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.
Agency
Transfer: A Xxxxxx Mae Transfer or a Xxxxxxx Mac
Transfer.
Agreement: This
First Amended and Restated Seller’s Purchase, Warranties and Servicing Agreement
including all exhibits hereto, amendments hereof 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 a Qualified
Appraiser, and (ii) the purchase price paid for the related Mortgaged Property
by the Mortgagor with the proceeds of the Mortgage Loan, provided,
however, in the case of a Refinanced Mortgage Loan, such value of the
Mortgaged Property is based solely upon the value determined by an appraisal
made for the originator of such Refinanced Mortgage Loan at the time of
origination of such Refinanced Mortgage Loan by a Qualified
Appraiser.
Assignment
and Conveyance: As defined in Section 2.03.
Assignment
of Mortgage: An individual assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form and in blank, sufficient
under the laws of the jurisdiction wherein the related Mortgaged Property is
located to give record notice of the transfer of the Mortgage.
Balloon
Mortgage Loan: Any Mortgage Loan which by its original terms or
any modifications thereof provides for amortization beyond its scheduled
maturity date.
Business
Day: Any day other than (i) a Saturday or a Sunday, or (ii) a
legal holiday in the States of New York or North Carolina, or (iii) a day on
which banks in the States of New York or North Carolina are authorized or
obligated by law or executive order to be closed.
Closing
Date: The date or dates set forth in the related Purchase Price
and Terms Letter 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.
2
Code: The
Internal Revenue Code of 1986, as the same may be amended from time to time
(or
any successor statute thereto).
Combined
Loan-to-Value Ratio or CLTV: As to any Second Lien Loan,
the ratio, expressed as a percentage, of the (a) sum of (i) the original
outstanding principal balance of the Second Lien Loan and (ii) the outstanding
principal balance of any mortgage loan or mortgage loans that are senior or
equal in priority to the Second Lien Loan and which are secured by the same
Mortgaged Property as of the origination date at such Second Lien Loan to (b)
the Appraised Value of the related Mortgaged Property as of the origination
of
the Second Lien Loan.
Compensating
Interest: For any Remittance Date, the lesser of (i) the
aggregate Servicing Fee payable to the Seller for such Remittance Date and
(ii)
the aggregate Prepayment Interest Shortfall for such Remittance
Date.
Condemnation
Proceeds: All awards, compensation and settlements in respect of
a Mortgaged Property, whether permanent or temporary, partial or entire, by
exercise of the power of eminent domain or condemnation, to the extent not
required to be released to a Mortgagor in accordance with the terms of the
related Mortgage Loan Documents.
Convertible
Mortgage Loan: Any Adjustable Rate Mortgage Loan purchased
pursuant to this Agreement as to which the related Mortgage Note permits the
Mortgagor to convert the Mortgage Interest Rate on such Mortgage Loan to a
fixed
Mortgage Interest Rate.
Co-op
Lease: With respect to a Co-op Loan, the lease with respect to a
dwelling unit occupied by the Mortgagor and relating to the stock allocated
to
the related dwelling unit.
Co-op
Loan: A Mortgage Loan secured by the pledge of stock allocated to
a dwelling unit in a residential cooperative housing corporation and a
collateral assignment of the related Co-op Lease.
Co-op
Stock: With respect to a Co-op Loan, the single outstanding class
of stock, partnership interest or other ownership instrument in the related
residential cooperative housing corporation.
Covered
Loan: A Mortgage Loan categorized as Covered pursuant to Appendix
E of the Standard & Poor’s Glossary.
Credit
Score: The credit score for each Mortgage Loan shall be the minimum of two
credit bureau scores obtained at origination or such other time by the
Seller. If two credit bureau scores are obtained, the Credit Score
will be the lower score. If three credit bureau scores are obtained,
the Credit Score will be the middle of the three. When there is more
than one applicant, the lowest of the applicants’ Credit Scores will be
used. There is only one (1) score for any loan regardless of the
number of borrowers and/or applicants.
Custodial
Account: Each separate demand account or accounts created and
maintained pursuant to Section 4.04 which shall be entitled “Wachovia Mortgage
Corporation, in trust for the Purchaser, as owner of various whole loan series”
and shall be established as an
3
Eligible
Account, in the name of the Person that is the “Purchaser” with respect to the
related Mortgage Loans.
Cut-off
Date: With respect to each Mortgage Loan Package, the first Business Day of
the month of the related Closing Date, or as otherwise set forth in the related
Purchase Price and Terms Letter.
Determination
Date: With respect to each Remittance Date, the 15th day (or if
such 15th day is not a Business Day, the Business Day immediately preceding
such
15th day) of the month in which such Remittance Date occurs.
Due
Date: With respect to any Mortgage Loan, the first day of each
month, exclusive of any days of grace.
Due
Period: With respect to each Remittance Date, the period
commencing on the second day of the month preceding the month of such Remittance
Date and ending on the first day of the month of the Remittance Date, in both
cases, inclusive.
Eligible
Account: An account established and maintained: (a) within FDIC insured
accounts (or other accounts with comparable insurance coverage acceptable to
the
Rating Agencies) created, maintained and monitored by the Seller so that all
funds deposited therein are fully insured, (b) with the corporate trust
department of a financial institution assigned a long-term debt rating of not
less than “A-1” by Standard & Poor’s or “Prime-1” by Xxxxx’x Investors
Services, Inc. and, if ownership of the Mortgage Loans is evidenced by mortgaged
backed securities, the equivalent ratings of the rating agencies, and held
such
that the rights of the Purchaser and the owner of the Mortgage Loans shall
be
fully protected against the claims of any creditors of the Seller and of any
creditors or depositors of the institution in which such account is maintained
or (c) in a separate non-trust account without FDIC or other insurance in an
Eligible Institution. In the event that a Custodial Account is
established pursuant to clause (b) or (c) of the preceding sentence, the Seller
shall provide the Purchaser with written notice on the Business Day following
the date on which the applicable institution fails to meet the applicable
ratings requirements.
Eligible
Institution: An institution having (i) the highest short-term
debt rating, and one of the two highest long-term debt ratings of the Rating
Agency; or (ii) with respect to any Custodial Account, an unsecured long-term
debt rating of at least one of the two highest unsecured long-term debt ratings
of the Rating Agencies.
Eligible
Investments: Any one or more of the following obligations or
securities:
(a) direct
obligations of, and obligations fully guaranteed by the United States of America
or any agency or instrumentality of the United States of America the obligations
of which are backed by the full faith and credit of the United States of
America;
(b) (i)
demand or time deposits, federal funds or bankers’ acceptances issued by any
depository institution or trust company incorporated under the laws of the
United States of America or any state thereof and subject to supervision and
examination by federal and/or state banking authorities, provided that the
commercial paper and/or the short-term deposit rating
4
and/or
the long-term unsecured debt obligations or deposits of such depository
institution or trust company at the time of such investment or contractual
commitment providing for such investment are rated in one of the two highest
rating categories by each Rating Agency and (ii) any other demand or time
deposit or certificate of deposit that is fully insured by the
FDIC;
(c) repurchase
obligations with a term not to exceed thirty (30) days and with respect to
(i)
any security described in clause (a) above and entered into with a depository
institution or trust company (acting as principal) described in clause (b)(ii)
above;
(d) securities
bearing interest or sold at a discount issued by any corporation incorporated
under the laws of the United States of America or any state thereof that are
rated in one of the two highest rating categories by each Rating Agency at
the
time of such investment or contractual commitment providing for such investment;
provided, however, that securities issued by any particular
corporation will not be Eligible Investments to the extent that investments
therein will cause the then outstanding principal amount of securities issued
by
such corporation and held as Eligible Investments to exceed 10% of the aggregate
outstanding principal balances of all of the Mortgage Loans and Eligible
Investments;
(e) commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified date not more
than one year after the date of issuance thereof) which are rated in one of
the
two highest rating categories by each Rating Agency at the time of such
investment;
(f) any
other demand, money market or time deposit, obligation, security or investment
as may be acceptable to each Rating Agency as evidenced in writing by each
Rating Agency; and
(g) any
money market funds the collateral of which consists of obligations fully
guaranteed by the United States of America or any agency or instrumentality
of
the United States of America the obligations of which are backed by the full
faith and credit of the United States of America (which may include repurchase
obligations secured by collateral described in clause (a)) and other securities
and which money market funds are rated in one of the two highest rating
categories by each Rating Agency.
provided,
however, that no instrument or security shall be an Eligible Investment
if such instrument or security evidences a right to receive only interest
payments with respect to the obligations underlying such instrument or if such
security provides for payment of both principal and interest with a yield to
maturity in excess of 120% of the yield to maturity at par or if such investment
or security is purchased at a price greater than par.
Escrow
Account: Each separate trust account or accounts created and
maintained pursuant to Section 4.06 which shall be entitled “Wachovia Mortgage
Corporation, in trust for the Purchaser, as owner of various whole loan series
and various Mortgagors” and shall be established as an Eligible Account, in the
name of the Person that is the “Purchaser” with respect to the related Mortgage
Loans.
Escrow
Payments: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, mortgage insurance
5
premiums,
fire and hazard insurance premiums, condominium charges, and any other payments
required to be escrowed by the Mortgagor with the mortgagee pursuant to the
Mortgage, applicable law or any other related document.
Event
of Default: Any one of the conditions or circumstances enumerated
in Section 8.01.
Xxxxxx
Mae: The entity formerly known as the Federal National Mortgage
Association, or any successor thereto.
Xxxxxx
Xxx Guides: The Xxxxxx Xxx Xxxxxxx’ Guide and the Xxxxxx Xxx
Servicers’ Guide and all amendments or additions thereto, including, but not
limited to, future updates thereof.
Xxxxxx
Mae Transfer: As defined in Section 10.01.
FDIC: The
Federal Deposit Insurance Corporation, or any successor thereto.
Fidelity
Bond: A fidelity bond to be maintained by the Seller pursuant to
Section 4.12.
FIRREA: The
Financial Institutions Reform, Recovery, and Enforcement Act of 1989, as amended
and in effect from time to time.
First
Lien Loan: A Mortgage Loan secured by a first lien Mortgage on
the related Mortgaged Property.
First
Remittance Date: The eighteenth (18th) day of the month following each
respective Closing Date, or if such day is not a Business Day, the first
Business Day immediately thereafter.
Fixed
Rate Mortgage Loan: A Mortgage Loan purchased pursuant to this
Agreement which bears a fixed Mortgage Interest Rate during the life of the
loan.
Xxxxxxx
Mac: The entity formerly known as the Federal Home Loan Mortgage
Corporation, or any successor thereto.
Xxxxxxx
Mac Guides: The Xxxxxxx Xxx Xxxxxxx’ Guide and the Xxxxxxx Mac
Servicers’ Guide and all amendments or additions thereto, including, but not
limited to, any future updates thereof.
Xxxxxxx
Mac Transfer: As defined in Section 10.01.
GAAP: Generally
accepted accounting principles, consistently applied.
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
6
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.
High
Cost Loan: A Mortgage Loan (a) covered by the Home Ownership and
Equity Protection Act of 1994 (“HOEPA”), (b) classified as a “high cost
home,” “threshold,” “covered,” “high risk home,” “predatory” or similar loan
under any other applicable state, federal or local law (or a similarly
classified loan using different terminology under a law imposing heightened
regulatory scrutiny or additional legal liability for residential mortgage
loans
having high interest rates, points and/or fees), (c) with an “annual
percentage rate” or total “points and fees” payable by the related
Mortgagor (as each such term is calculated under HOEPA) that exceed the
thresholds set forth by HOEPA and its implementing regulations, including 12
C.F.R. § 226.32(a)(1)(i) or (d) categorized as High Cost pursuant to Appendix E
of Standard & Poor’s Glossary. For avoidance of doubt, the
parties agree that this definition shall apply to any law regardless of whether
such law is presently, or in the future becomes, the subject of judicial review
or litigation.
Home
Loan: A Mortgage Loan categorized as a Home Loan pursuant to
Appendix E of the Standard & Poor’s Glossary.
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 Mortgage Interest Rate thereon.
Insurance
Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged
Property.
Interest
Only Mortgage Loan: A Mortgage Loan that only requires payments
of interest for a period of time specified in the related Mortgage
Note.
Liquidation
Proceeds: Amounts received in connection with the partial or
complete liquidation of a defaulted Mortgage Loan, whether through the sale
or
assignment of such Mortgage Loan, trustee’s sale, foreclosure sale or otherwise,
or in connection with the sale of the Mortgaged Property if the Mortgaged
Property is acquired in satisfaction of the Mortgage.
Loan-to-Value
Ratio or LTV: With respect to any Mortgage Loan, the ratio
(expressed as a percentage) of the original outstanding principal amount of
the
Mortgage Loan to the Appraised Value of the Mortgaged Property at
origination.
Manufactured
Home Mortgage Loan: A single family residential unit that is
constructed in a factory in sections in accordance with the Federal Manufactured
Home Construction and Safety Standards adopted on July 15, 1976, by the
Department of Housing and Urban Development (“HUD Code”), as amended in 2000,
which preempts state and local building codes. Each unit is
identified by the presence of a HUD Plate/Compliance Certificate
label. The sections are then transported to the site and joined
together and affixed to a pre-built permanent foundation (which satisfies the
manufacturer’s requirements and all state, county, and
7
local
building codes and regulations). The manufactured home is built on a
non-removable, permanent frame chassis that supports the complete unit of walls,
floors, and roof. The underneath part of the home may have running
gear (wheels, axles, and brakes) that enable it to be transported to the
permanent site. The wheels and hitch are removed prior to anchoring
the unit to the permanent foundation. The manufactured home must be
classified as real estate and taxed accordingly. The permanent
foundation may be on land owned by the mortgager or may be on leased
land.
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 mortgagee,
solely as nominee for the originator of such Mortgage Loan and its successors
and assigns.
Monthly
Advance: The payment required to be made by the Seller with
respect to any Remittance Date pursuant to Section 5.03.
Monthly
Payment: The scheduled monthly payment on a Mortgage Loan due on
any Due Date allocable to principal and/or interest on such Mortgage Loan
pursuant to the terms of the related Mortgage Note.
Mortgage: With
respect to any Mortgage Loan that is not a Co-op Loan, the mortgage, deed of
trust or other instrument securing a Mortgage Note which creates a first or
second lien on an unsubordinated estate in fee simple in real property securing
the Mortgage Note; except that with respect to real property located in
jurisdictions in which the use of leasehold estates for residential properties
is a widely-accepted practice, the mortgage, deed of trust or other instrument
securing the Mortgage Note may secure and create a first or second lien upon
a
leasehold estate of the Mortgagor. With respect to a Co-op Loan, the
related Security Agreement.
8
Mortgage
File: With respect to each Mortgage Loan, the documents
pertaining thereto specified in Exhibit A-1 and any additional documents
required to be added to the Mortgage File pursuant to this
Agreement.
Mortgage
Interest Rate: As to each Mortgage Loan, the annual rate at which
interest accrues on such Mortgage Loan in accordance with the provisions of
the
related Mortgage Note.
Mortgage
Interest Rate Cap: With respect to an Adjustable Rate Mortgage
Loan, the limit on each Mortgage Interest Rate adjustment as set forth in the
related Mortgage Note.
Mortgage
Loan: An individual Mortgage Loan which is the subject of this
Agreement, each Mortgage Loan originally sold and subject to this Agreement
being identified on the related Mortgage Loan Schedule, which Mortgage Loan
includes without limitation the Mortgage File, the Monthly Payments, Principal
Prepayments, Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds,
REO Disposition Proceeds, any escrow accounts related to the Mortgage Loan,
and
all other rights, benefits, proceeds and obligations arising from or in
connection with such Mortgage Loan, excluding replaced or repurchased mortgage
loans.
Mortgage
Loan Documents: The documents contained in a Mortgage
File.
Mortgage
Loan Package: As defined in the Recitals to this Agreement.
Mortgage
Loan Remittance Rate: With respect to each Mortgage Loan, the
Mortgage Interest Rate less the related Servicing Fee Rate.
Mortgage
Loan Schedule: The schedule of Mortgage Loans setting forth the
following information with respect to each Mortgage Loan in the related Mortgage
Loan Package: (1) the Seller’s Mortgage Loan identifying number;
(2) the Mortgagor’s name; (3) the street address of the Mortgaged
Property including the city, state and zip code; (4) a code indicating whether
the Mortgagor is self-employed; (5) a code indicating whether the Mortgaged
Property is owner-occupied; (6) the number of units and type of residential
property constituting the Mortgaged Property; (7) the original months to
maturity or the remaining months to maturity from the related Cut-off Date,
in
any case based on the original amortization schedule and, if different, the
maturity expressed in the same manner but based on the actual amortization
schedule; (8) with respect to each First Lien Loan, the LTV at origination,
and with respect to each Second Lien Loan, the CLTV at origination; (9) the
Mortgage Interest Rate as of the related Cut-off Date; (10) the date on
which the 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; (11) the
stated maturity date; (12) the first payment date; (13) the amount of the
Monthly Payment as of the related Cut-off Date; (14) the last payment date
on which a payment was actually applied to the outstanding principal balance;
(15) the original principal amount of the Mortgage Loan; (16) the
principal balance of the Mortgage Loan as of the close of business on the
related Cut-off Date, after deduction of payments of principal due and collected
on or before the related Cut-off Date; (17) with respect to each Adjustable
Rate Mortgage Loan, the Adjustment Date; (18) with respect to each
Adjustable Rate Mortgage Loan, the Gross Margin; (19) with respect to each
Adjustable Rate Mortgage Loan, the Mortgage Interest Rate Cap under the terms
of
the
9
Mortgage
Note; (20) with respect to each Mortgage Loan, a code indicating the type of
Index; (21) the type of Mortgage Loan (i.e., Fixed or Adjustable Rate Mortgage
Loan, First or Second Lien Loan); (20) a code indicating the purpose of the
loan (i.e., purchase, rate and term refinance, equity take-out refinance);
(21) a code indicating the documentation style (i.e., full, alternative or
reduced); (22) asset verification (Y/N); (23) the loan credit
classification (as described in the Underwriting Standards); (24) whether
such Mortgage Loan provides for a Prepayment Penalty and, if applicable, the
Prepayment Penalty term; (25) the Mortgage Interest Rate as of origination;
(26) the credit risk score (FICO score); (27) the date of origination;
(28) with respect to Adjustable Rate Mortgage Loans, the Mortgage Interest
Rate adjustment period; (29) with respect to each Adjustable Rate Mortgage
Loan, the Mortgage Interest Rate adjustment percentage; (30) with respect
to each Adjustable Rate Mortgage Loan, the Mortgage Interest Rate Cap as of
the
first Adjustment Date; (31) with respect to each Adjustable Rate Mortgage
Loan, the Periodic Rate Cap subsequent to the first Adjustment Date;
(32) the Due Date for the first Monthly Payment; (33) the original
Monthly Payment due; (34) a code indicating the Primary Mortgage Insurance
Policy provider and percentage of coverage, if applicable; (35) Appraised
Value; (36) appraisal type; (37) appraisal date; (40) a code
indicating whether the Mortgage Loans is a “buydown” loan; and (38) with
respect to the related Mortgagor, the debt-to-income ratio. With
respect to the Mortgage Loans 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
aggregate outstanding principal balance of the Mortgage Loans; (3) the
weighted average Mortgage Interest Rate of the Mortgage Loans; (4) the
weighted average maturity of the Mortgage Loans; (5) the applicable Cut-off
Date; and (6) the applicable Closing Date.
Mortgage
Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
Mortgaged
Property: With respect to any Mortgage Loan that is not a Co-op
Loan, the underlying real property securing repayment of the related Mortgage
Note, consisting of a fee simple parcel of real estate or a leasehold estate,
the term of which is equal to or longer than the term of such Mortgage
Note. With respect to a Co-op Loan, the stock allocated to a dwelling
unit in the residential cooperative housing corporation that was pledged to
secure such Co-op Loan and the related Co-op Lease.
Mortgagor: The
obligor on a Mortgage Note.
Mortgagor
Personal Information: Any information, including, but not limited
to, all personal information about a Mortgagor that is disclosed to the Seller
or the Purchaser by or on behalf of the Mortgagor.
OCC: Office
of the Comptroller of the Currency, its successors and assigns.
Officers’
Certificate: A certificate signed by the Chairman of the Board,
the Vice Chairman of the Board, the President, a Senior Vice President or a
Vice
President and by the Treasurer or the Secretary or one of the Assistant
Treasurers or Assistant Secretaries of the Seller, and delivered to the
Purchaser as required by this Agreement.
10
Opinion
of Counsel: A written opinion of counsel, who may be an employee
of the party on behalf of whom the opinion is being given, reasonably acceptable
to the Purchaser, provided that any Opinion of Counsel relating to
(a) qualification of the Mortgage Loans in a REMIC or (b) compliance
with the REMIC Provisions, must be (unless otherwise stated in such Opinion
of
Counsel) an opinion of counsel who (i) is in fact independent of the Seller
and any servicer of the Mortgage Loans, (ii) does not have any material
direct or indirect financial interest in the Seller or any servicer or in an
Affiliate of either and (iii) is not connected with the Seller or any
servicer as an officer, employee, director or person performing similar
functions.
OTS: Office
of Thrift Supervision or any successor thereto.
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
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, which may be a different amount with respect to the first
Adjustment Date.
Person: Any
individual, corporation, partnership, joint venture, association, limited
liability company, joint-stock company, trust, unincorporated organization
or
government or any agency or political subdivision thereof.
Premium
Percentage: With respect to any Mortgage Loan, a percentage equal
to the excess of the Purchase Price Percentage over 100%.
Prepayment
Interest Shortfall: As to any Remittance Date and Principal
Prepayment in full, the difference between (i) one full month’s interest at the
applicable Mortgage Interest Rate (after giving effect to any applicable relief
act reduction, debt service reduction and deficient valuation), as reduced
by
the Servicing Fee Rate, on the outstanding principal balance of the related
Mortgage Loan immediately prior to such Principal Prepayment and (ii) the amount
of interest actually received with respect to such Mortgage Loan in connection
with such Principal Prepayment.
Prepayment
Penalty: With respect to each Mortgage Loan, the amount of any
premium or penalty required to be paid by the Mortgagor if the Mortgagor prepays
such Mortgage Loan as provided in the related Mortgage Note or
Mortgage.
Primary
Mortgage Insurance Policy: Each policy of primary mortgage
insurance represented to be in effect pursuant to Section 3.02(bb), or any
replacement policy therefor obtained by the Seller pursuant to Section
4.08.
Prime
Rate: The prime rate announced to be in effect from time to time
as published as the average rate in The Wall Street Journal (Northeast
Edition).
Principal
Prepayment: Any full or partial payment or other recovery of
principal on a Mortgage Loan which is received in advance of its scheduled
Due
Date, including any
11
Prepayment
Penalty thereon and which is not accompanied by an amount of interest
representing scheduled interest due on any date or dates in any month or months
subsequent to the month of prepayment.
Purchase
Price: As defined in Section 2.02.
Purchase
Price and Terms Letter: As defined in the Recitals to this Agreement which
may also be a form of trade execution notice.
Purchaser: Xxxxxx
Xxxxxxx Mortgage Capital Inc., its successors in interest and
assigns.
Qualified
Appraiser: With respect to each Mortgage Loan, an appraiser, duly
appointed by the Seller, who had no interest, direct or indirect in the
Mortgaged Property or in any loan made on the security thereof, and whose
compensation is not affected by the approval or disapproval of the Mortgage
Loan, and such appraiser and the appraisal made by such appraiser both satisfy
the requirements of Xxxxxx Mae and Title XI of FIRREA and the regulations
promulgated thereunder, all as in effect on the date the Mortgage Loan was
originated.
Qualified
Insurer: An insurance company duly qualified as such under the
laws of the states in which the Mortgaged Properties are located, duly
authorized and licensed in such states to transact the applicable insurance
business and to write the insurance provided by the insurance policy issued
by
it, approved as an insurer by Xxxxxx Xxx or Xxxxxxx Mac.
Rating
Agencies: Standard & Poor’s Ratings Services, a division of The XxXxxx-
Xxxx Companies, Inc., Xxxxx’x Investors Service, Inc. or, in the event that some
or all ownership of the Mortgage Loans is evidenced by mortgage-backed
securities, the nationally recognized rating agencies issuing ratings with
respect to such securities, if any.
Reconstitution: As
defined in Section 10.01.
Reconstitution
Agreement: As defined in Section 10.01.
Reconstitution
Date: As defined in Section 10.01.
Refinanced
Mortgage Loan: A Mortgage Loan which was made to a Mortgagor who
owned the Mortgaged Property prior to the origination of such Mortgage Loan
and
the proceeds of which were used in whole or part to satisfy an existing
mortgage.
REMIC: A
“real estate mortgage investment conduit” within the meaning of Section 860D of
the Code.
Remittance
Date: The 18th day of each month, beginning with the First
Remittance Date, or if such day is not a Business Day, the first Business Day
thereafter.
REO
Disposition: The final sale by the Seller of any REO
Property.
12
REO
Disposition Proceeds: Amounts received by the Seller in
connection with an REO Disposition.
REO
Property: A Mortgaged Property acquired by or on behalf of the
Purchaser in full or partial satisfaction of the related Mortgage as described
in Section 4.13.
Repurchase
Price: With respect to any Mortgage Loan for which a breach of a
representation or warranty set forth in this Agreement is found, a price equal
to (i) the then outstanding principal balance of the Mortgage Loan to be
repurchased, plus (ii) accrued interest thereon at the Mortgage Interest
Rate from the date to which interest had last been paid through the date of
such
repurchase, plus (iii) the amount of any outstanding advances owed to any
servicer, plus (iv) all costs and expenses incurred by the Purchaser or
any servicer arising out of or based upon such breach, including without
limitation reasonable costs and expenses incurred in the enforcement of the
Seller's repurchase obligation hereunder, less (v) in the event the
Seller is servicing such Mortgage Loan as of the date of repurchase, amounts
received or advanced in respect of such repurchased Mortgage Loan which are
being held in the Custodial Account for distribution in connection with such
Mortgage Loan, plus (vi) in the event a Mortgage Loan is repurchased
during the period following the related Closing Date and prior to a related
Reconstitution Date (but in no event shall such period extend for more than
the
first twelve months following the related Closing Date), an amount equal to
the
Premium Percentage multiplied by the outstanding principal balance of such
Mortgage Loan as of the date of such repurchase.
RESPA: Real
Estate Settlement Procedures Act, as amended from time to time.
SAIF: The
Savings Association Insurance Fund, or any successor thereto.
Second
Lien Loan: A Mortgage Loan secured by a second lien Mortgage on
the related Mortgaged Property.
Securitization
Transfer: The sale or transfer of some or all of the Mortgage
Loans to a trust or other entity as part of a publicly-offered or
privately-placed, rated or unrated mortgage pass-through or other
mortgage-backed securities transaction.
Security
Agreement: With respect to a Co-op Loan, the agreement or
mortgage creating a security interest in favor of the originator of the Co-op
Loan in the related Co-op Stock.
Scheduled
Principal Balance: As to each Mortgage Loan and any date of
determination, (i) the principal balance of such Mortgage Loan as of the related
Cut-off Date after giving effect to payments of principal due on or before
such
date, whether or not received, minus (ii) all amounts previously distributed
to
the Purchaser with respect to the Mortgage Loan representing payments or
recoveries of principal (or advances in lieu thereof).
Servicing
Advances: All customary, reasonable and necessary “out of pocket”
costs and expenses (including reasonable attorneys’ fees and disbursements)
incurred in the performance by the Seller of its servicing obligations,
including, but not limited to, the cost of (a) the preservation, restoration
and
protection of a Mortgaged Property, (b) any enforcement,
13
administrative
or judicial proceedings, or any legal work or advice specifically related to
servicing the Mortgage Loans, including but not limited to, foreclosures,
bankruptcies, condemnations, drug seizures, elections, foreclosures by
subordinate or superior lienholders, and other legal actions incidental to
the
servicing of the Mortgage Loans (provided that such expenses are reasonable
and
that the Seller specifies the Mortgage Loan(s) to which such expenses relate,
and provided further that any such enforcement, administrative or judicial
proceeding does not arise out of a breach of any representation, warranty or
covenant of the Seller hereunder), (c) the management and liquidation of any
REO
Property, (d) taxes, assessments, water rates, sewer rates and other charges
which are or may become a lien upon the Mortgaged Property, and Primary Mortgage
Insurance Policy premiums and fire and hazard insurance coverage, (e) any
expenses reasonably sustained by the Seller with respect to the liquidation
of
the Mortgaged Property in accordance with the terms of this Agreement and (f)
compliance with the obligations under Section 4.08.
Servicing
Fee: With respect to each Mortgage Loan, the amount of the annual
fee the Purchaser shall pay to the Seller, which shall, for each month, be
equal
to one-twelfth of the product of (i) the Servicing Fee Rate and (ii) the
Scheduled Principal Balance of such Mortgage Loan. Such fee shall be
payable monthly, computed on the basis of the same principal amount and period
respecting which any related interest payment on a Mortgage Loan is computed,
and for any month in which servicing of such Mortgage Loan is transferred from
the Seller, shall be pro rated (based upon the number of days of the related
month the Seller so acted as servicer relative to the number of days in that
month) for each part thereof. The obligation of the Purchaser to pay
the Servicing Fee is limited to, and payable solely from, the interest portion
(including recoveries with respect to interest from Liquidation Proceeds and
other proceeds, to the extent permitted by Section 4.05) of related
Monthly Payments collected by the Seller, or as otherwise provided under
Section 4.05.
Servicing
Fee Rate: The per annum rate at which the Servicing Fee accrues,
which rate with respect to each Mortgage Loan shall be as set forth in the
related Purchase Price and Terms Letter.
Servicing
File: With respect to each Mortgage Loan, the documents
pertaining thereto specified in Exhibit A-2 and copies of all documents
for such Mortgage Loan specified in Exhibit A-1.
Servicing
Officer: Any officer of the Seller involved in, or responsible
for, the administration and servicing of the Mortgage Loans whose name appears
on a list of servicing officers furnished by the Seller to the Purchaser upon
request, as such list may from time to time be amended.
Standard
& Poor’s: Standard & Poor’s Ratings Services, a division
of The XxXxxx-Xxxx Companies Inc., and its successors in
interest.
Standard
& Poor’s Glossary: The Standard & Poor’s LEVELS®
Glossary, as may be in effect from time to time.
14
Underwriting
Standards: As to each Mortgage Loan, the Seller’s underwriting
guidelines in effect as of the date of origination of such Mortgage
Loan.
Whole
Loan Transfer: As defined in Section 11.01(a)(i).
ARTICLE
II
SERVICING
OF MORTGAGE LOANS; RECORD TITLE AND POSSESSION OF MORTGAGE FILES; BOOKS AND
RECORDS; CUSTODIAL AGREEMENT; DELIVERY OF MORTGAGE LOAN
DOCUMENTS
Section
2.01. Agreement to Purchase.
The
Seller agrees to sell and the Purchaser agrees to purchase on each Closing
Date,
pursuant to this Agreement and the related Purchase Price and Terms Letter,
the
Mortgage Loans being sold by the Seller and listed on the related Mortgage
Loan
Schedule, servicing rights retained, having an aggregate Scheduled Principal
Balance in an amount as set forth in the related Purchase Price and Terms
Letter, 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 such Closing Date. The Seller shall
deliver in an electronic format the Mortgage Loan Schedule for the Mortgage
Loans to be purchased on such Closing Date to the Purchaser at least two (2)
Business Days prior to such Closing Date.
Section
2.02. Purchase Price.
The
Purchase Price for the Mortgage Loans in a Mortgage Loan Package shall be equal
to the sum of (a) the percentage of par as stated in the related Purchase Price
and Terms Letter (subject to adjustment as provided therein), multiplied by
the
aggregate Scheduled Principal Balance of Mortgage Loans as of the related
Cut-off Date listed on the related Mortgage Loan Schedule plus (b)
accrued interest on the aggregate Scheduled Principal Balance of the related
Mortgage Loans as of the related Cut-off Date at the weighted average Mortgage
Loan Remittance Rate of such Mortgage Loans from and including the related
Cut-off Date to but not including such Closing Date (the “Purchase
Price”). If so provided in the related Purchase Price and Terms Letter,
portions of each Mortgage Loan Package shall be priced separately.
The
Purchase Price as set forth in the preceding paragraph for the Mortgage Loans
in
a Mortgage Loan Package shall be paid on the related Closing Date by wire
transfer of immediately available funds.
With
respect to each Mortgage Loan, the Purchaser shall be entitled to (1) the
principal portion of all Monthly Payments due after the related Cut-off Date,
(2) all other recoveries of principal collected on or after the related Cut-off
Date (provided, however, that the principal portion of all Monthly Payments
due
on or before the related Cut-off Date and collected by the Seller or any
successor servicer after the related Cut-off Date shall belong to the Seller),
and (3) all payments of interest on the Mortgage Loans at the related Mortgage
Loan Remittance Rate (minus that portion of any such payment which is allocable
to the period prior to the related Cut-off Date). The Scheduled
Principal Balance of each Mortgage Loan as of the related Cut-off Date is
determined after application of payments of principal due on or before the
15
related
Cut-off Date whether or not collected, together with any unscheduled Principal
Prepayments collected prior to the related Cut-off Date; provided,
however, that Monthly Payments 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 Monthly Payments shall be the property of the
Purchaser. The Seller shall deposit any such Monthly Payments into
the Custodial Account.
Section
2.03. Servicing of Mortgage
Loans.
On
each
Closing Date, the Mortgage Loans in the related Mortgage Loan Package will
be
sold by the Seller to the Purchaser on a servicing retained basis upon the
execution and delivery of an Assignment and Conveyance in the form attached
hereto as Exhibit E (the “Assignment and
Conveyance”).
Simultaneously
with the execution and delivery of the related Assignment and Conveyance, for
each Mortgage Loan Package, the Seller hereby agrees to service the Mortgage
Loans listed on the Mortgage Loan Schedule in accordance with Accepted Servicing
Practices and this Agreement. The rights of the Purchaser to receive payments
with respect to the related Mortgage Loans shall be as set forth in this
Agreement.
Section
2.04. Record Title and Possession of Mortgage
Files; Maintenance of Servicing Files.
As
of
each Closing Date, the Seller will have sold, transferred, assigned, set over
and conveyed to the Purchaser, without recourse, and the Seller hereby
acknowledges that the Purchaser will have, all the right, title and interest
of
the Seller in and to the Mortgage Loans. In accordance with Section
2.07, the Seller shall deliver at its own expense, the Mortgage Files for the
related Mortgage Loans to Purchaser or its designee. The possession
of each Servicing File by the Seller is for the sole purpose of servicing the
related Mortgage Loan. From each Closing Date, the ownership of each
related Mortgage Loan, including the Mortgage Note, the Mortgage, the contents
of the related Mortgage File and all rights, benefits, proceeds and obligations
arising therefrom or in connection therewith, has been vested in the
Purchaser. All rights arising out of the Mortgage Loans including,
but not limited to, all funds received on or in connection with the Mortgage
Loans and all records or documents with respect to the Mortgage Loans prepared
by or which come into the possession of the Seller shall be received and held
by
the Seller in trust for the benefit of the Purchaser as the owner of the
Mortgage Loans. Any portion of the Mortgage Files retained by the
Seller shall be appropriately identified in the Seller’s computer system to
clearly reflect the ownership of the Mortgage Loans by the
Purchaser.
In
addition, in connection with the assignment of any MERS Mortgage Loan, the
Seller agrees that it will cause, at its own expense, the MERS® System to
indicate that such Mortgage Loans have been assigned by the Seller to the
Purchaser in accordance with this Agreement by including (or deleting, in the
case of Mortgage Loans which are repurchased in accordance with this Agreement)
in such computer files the information required by the MERS® System to identify
the Purchaser of such Mortgage Loans. The Seller further agrees that
it will not alter the information 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.
16
Section
2.05. Books and Records.
The
sale
of each Mortgage Loan will be reflected on the Seller’s balance sheet and other
financial statements as a sale of assets by the Seller and will be reflected
on
the Purchaser’s balance sheet and other financial statements as a purchase by
the Purchaser. The Seller shall maintain, a complete set of books and
records for the Mortgage Loans sold by it which shall be appropriately
identified in the Seller’s computer system to clearly reflect the ownership of
the Mortgage Loans by the Purchaser. In particular, the Seller shall
maintain in its possession, available for inspection by the Purchaser, or its
designee and shall deliver to the Purchaser upon demand, evidence of compliance
with all federal, state and local laws, rules and regulations, and requirements
of Xxxxxx Xxx or Xxxxxxx Mac, as applicable, including but not limited to
documentation as to the method used in determining the applicability of the
provisions of the Flood Disaster Protection Act of 1973, as amended, to the
Mortgaged Property, documentation evidencing insurance coverage and eligibility
of any condominium project for approval by Seller and periodic inspection
reports as required by Section 4.13. To the extent that original
documents are not required for purposes of realization of Liquidation Proceeds
or Insurance Proceeds, documents maintained by the Seller may be in the form
of
microfilm or microfiche or such other reliable means of recreating original
documents, including but not limited to, optical imagery techniques so long
as
the Seller complies with the requirements of the Xxxxxx Mae Guides.
Section
2.06. Transfer of Mortgage
Loans.
The
Seller shall keep at its office books and records in which, subject to such
reasonable regulations as it may prescribe, the Seller shall note transfers
of
Mortgage Loans. No transfer of a Mortgage Loan may be made unless
such transfer is in compliance with the terms of Section 11.12. For
the purposes of this Agreement, the Seller shall be under no obligation to
deal
with any person with respect to this Agreement or any Mortgage Loan unless
a
properly executed Assignment, Assumption and Recognition Agreement in the form
of Exhibit D with respect to such Mortgage Loan has been delivered to the
Seller; provided, that, unless otherwise provided in the related Purchase Price
and Terms Letter, in no event shall there be more than four (4) “Purchasers”
with respect to any Mortgage Loan Package. Upon receipt of notice of
the transfer, the Seller shall xxxx its books and records to reflect the
ownership of the Mortgage Loans by such assignee, and, except as otherwise
provided herein, the previous Purchaser shall be released from its obligations
hereunder with respect to the Mortgage Loans sold or transferred.
Section
2.07. Delivery of Mortgage Loan
Documents.
The
Seller shall, at least two (2) Business Days prior to the related Closing Date
(or such later date as the Purchaser may reasonably request), deliver and
release to the Purchaser, or its designee, the Mortgage Loan Documents with
respect to each Mortgage Loan pursuant to a bailee letter
agreement. If the Seller cannot deliver the original recorded
Mortgage Loan Documents on the related Closing Date, the Seller shall, promptly
upon receipt thereof and in any case not later than 180 days from the related
Closing Date, deliver such original recorded documents to the Purchaser or
its
designee (unless the Seller is delayed in making such delivery by reason of
the
fact that such documents shall not have been returned by the appropriate
17
recording
office). If delivery is not completed within 180 days of the related
Closing Date solely because such documents shall not have been returned by
the
appropriate recording office, the Seller shall deliver a recording receipt
of
such recording office or, if such recording receipt is not available, an
officer’s certificate of a servicing officer of the Seller, confirming that such
document has been accepted for recording and shall use its best efforts to
deliver such document within twelve (12) months of the related Closing
Date.
To
the
extent received by it, 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 (2) weeks after their execution; provided,
however, that the Seller shall provide the Purchaser, or its designee,
with a copy, certified by the Seller as a true copy, of any such document
submitted for recordation within two (2) weeks after its execution, and shall
promptly provide the original of any document submitted for recordation or
a
copy of such document certified by the appropriate public recording office
to be
a true and complete copy of the original within two (2) weeks of its return
from
the appropriate public recording office.
The
Seller shall pay all initial recording fees, if any, for the Assignments of
Mortgage and any other fees or costs in transferring all original documents
to
the Custodian or, upon written request of the Purchaser, to the Purchaser or
the
Purchaser’s designee. The Purchaser or the Purchaser’s designee shall
be responsible for recording the Assignments of Mortgage and shall be reimbursed
by the Seller for the costs associated therewith pursuant to the preceding
sentence.
Section
2.08. Quality Control
Procedures.
The
Seller shall have an internal quality control program that verifies, on a
regular basis, the existence and accuracy of the legal documents, credit
documents, property appraisals, and underwriting decisions. The
program must be capable of evaluating and monitoring the overall quality of
its
loan production and servicing activities. The program is to ensure
that the Mortgage Loans are originated and serviced in accordance with prudent
mortgage banking practices and accounting principles; guard against dishonest,
fraudulent, or negligent acts; and guard against errors and omissions by
officers, employees, or other authorized persons.
Section
2.09. Closing.
The
closing for the purchase and sale of the Mortgage Loans shall take place on
the
related Closing Date. 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 the related Closing Date shall
be subject to each of the following conditions:
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(a)
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at
least two (2) Business Days prior to the related Closing Date, the
Seller
shall deliver to the Purchaser a magnetic diskette, or transmit by
modem
or e-mail, a listing on a loan-level basis of the information contained
in
the Mortgage Loan Schedule;
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18
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(b)
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all
of the representations and warranties of the Seller under this Agreement
shall be true and correct as of the related Closing Date or, with
respect
to representations and warranties made as of a date other than the
related
Closing Date, as of such 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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(c)
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the
Purchaser shall have received, or the Purchaser’s attorneys shall have
received in escrow, all closing documents, in such forms as are agreed
upon and acceptable to the Purchaser, duly executed by all signatories
other than the Purchaser as required pursuant to the terms
hereof;
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(d)
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the
Seller shall have received, or the Seller’s attorneys shall have received
in escrow, all closing documents, in such forms as are agreed upon
and
acceptable to the Seller, duly executed by all signatories other
than the
Seller as required pursuant to the terms
hereof;
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(e)
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the
Seller shall have delivered and released to the Purchaser (or its
designee) on or prior to the related Closing Date all documents required
to be delivered and released pursuant to the terms of this Agreement;
and
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(f)
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all
other terms and conditions of this Agreement, the related Purchase
Price
and Terms Letter and the related Assignment and Conveyance shall
have been
materially complied with.
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Subject
to the foregoing conditions, the Purchaser shall pay to the Seller on the
related Closing Date the Purchase Price pursuant to Section 2.02 of this
Agreement, by wire transfer of immediately available funds to the account
designated by the Seller.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF THE SELLER; REPURCHASE; REVIEW OF MORTGAGE
LOANS
Section
3.01. Representations and Warranties of the
Seller.
The
Seller represents, warrants and covenants to the Purchaser that as of each
Closing Date or as of such date specifically provided herein:
(a) The
Seller is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation and has all licenses
necessary to carry out its business as now being conducted, and is licensed
and
qualified to transact business in and is in good standing under the laws of
each
state in which any Mortgaged Property is located or is otherwise exempt under
applicable law from such licensing or qualification or is otherwise not required
under applicable law to effect such licensing or qualification and no demand
for
such licensing or qualification has been made upon the Seller by any such state,
and in any event the Seller is in compliance with the laws of any such state
to
the extent necessary to ensure the enforceability of each Mortgage Loan and
the
servicing of the Mortgage Loans in accordance with the terms of this
Agreement;
19
(b) The
Seller has the full power and authority and legal right to hold, transfer and
convey 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 related Purchase Price and Terms Letter and the related
Assignment and Conveyance and to conduct its business as presently conducted;
the Seller has duly authorized the execution, delivery and performance of this
Agreement and any agreements contemplated hereby, has duly executed and
delivered this Agreement, the related Purchase Price and Terms Letter and the
related Assignment and Conveyance, and any agreements contemplated hereby,
and
this Agreement, the related Purchase Price and Terms Letter, the related
Assignment and Conveyance and each Assignment of Mortgage to the Purchaser
and
any agreements contemplated hereby, constitute the legal, valid and binding
obligations of the Seller, enforceable against it in accordance with their
respective terms, except as such enforceability may be limited by bankruptcy,
insolvency, moratorium, reorganization and similar laws, and by equitable
principles affecting the enforceability of the rights of creditors; and all
requisite corporate action has been taken by the Seller to make this Agreement,
the related Purchase Price and Terms Letter, the related Assignment and
Conveyance and all agreements contemplated hereby valid and binding upon the
Seller in accordance with their respective terms;
(c) None
of the execution and delivery of this Agreement, the related Purchase Price
and
Terms Letter, the related Assignment and Conveyance, the sale of the Mortgage
Loans to the Purchaser, the consummation of the transactions contemplated
hereby, or the fulfillment of or compliance with the terms and conditions of
this Agreement, the related Purchase Price and Terms Letter or the related
Assignment and Conveyance will conflict with any of the terms, conditions or
provisions of the Seller’s charter or by-laws or materially conflict with or
result in a material breach of any of the terms, conditions or provisions of
any
legal restriction or any material agreement or instrument to which the Seller
is
now a party or by which it is bound, or constitute a default or result in an
acceleration under any of the foregoing, or result in the material violation
of
any law, rule, regulation, order, judgment or decree to which the Seller or
its
property is subject;
(d) There
is no litigation, suit, proceeding or investigation pending or, to the Seller’s
knowledge, threatened, or any order or decree outstanding, which is reasonably
likely to have a material adverse effect on the sale of the Mortgage Loans,
the
execution, delivery, performance or enforceability of this Agreement, the
related Purchase Price and Terms Letter or the related Assignment and
Conveyance, or which is reasonably likely to have a material adverse effect
on
the financial condition of the Seller;
(e) 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, the related Purchase Price and
Terms Letter and the related Assignment and Conveyance, except for consents,
approvals, authorizations and orders which have been obtained;
(f) The
consummation of the transactions contemplated by this Agreement, the related
Purchase Price and Terms Letter and the related Assignment and Conveyance 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, the related
20
Purchase
Price and Terms Letter and the related Assignment and Conveyance are not subject
to bulk transfer or any similar statutory provisions in effect in any applicable
jurisdiction;
(g) The
Seller has not used selection procedures that identified the Mortgage Loans
as
being less desirable or valuable than other comparable mortgage loans in the
Seller’s portfolio at the Cut-off Date;
(h) The
Seller will treat the sale of the Mortgage Loans to the Purchaser as a sale
for
reporting and accounting purposes and, to the extent appropriate, for federal
income tax purposes;
(i) The
Seller is an approved seller/servicer of residential mortgage loans for Xxxxxx
Xxx or Xxxxxxx Mac and HUD, with such facilities, procedures and personnel
necessary for the sound servicing of such mortgage loans. The Seller
is duly qualified, licensed, registered and otherwise authorized under all
applicable federal, state and local laws and regulations, meets the minimum
capital requirements, if applicable, set forth by the OCC, and is in good
standing to sell mortgage loans to and service mortgage loans for Xxxxxx Mae
or
Xxxxxxx Mac and no event has occurred which would make the Seller unable to
comply with eligibility requirements or which would require notification to
either Xxxxxx Mae or Xxxxxxx Mac;
(j) The
Seller does not believe, nor does it have any cause or reason to believe, that
it cannot perform each and every covenant contained in this Agreement and the
related Purchase Price and Terms Letter. The Seller is solvent and the sale
of
the Mortgage Loans will not cause the Seller to become insolvent. The
sale of the Mortgage Loans is not undertaken with the intent to hinder, delay
or
defraud any of the Seller’s creditors;
(k) Neither
this Agreement nor any information, statement, tape, diskette, form, report,
or
other document furnished or to be furnished pursuant to this Agreement or any
Reconstitution Agreement or in connection with the transactions contemplated
hereby (including any Securitization Transfer or Whole Loan Transfer) contains
or will contain any untrue statement of fact or omits or will omit to state
a
fact necessary to make the statements contained herein or therein not
misleading;
(l) The
Seller acknowledges and agrees that the Servicing Fee represents reasonable
compensation for performing such services and that the entire Servicing Fee
shall be treated by the Seller, for accounting and tax purposes, as compensation
for the servicing and administration of the Mortgage Loans pursuant to this
Agreement;
(m) The
Seller has delivered to the Purchaser financial statements as to its last two
complete fiscal years for which financial statements are
available. All such financial statements fairly present the pertinent
results of operations and changes in financial position for each of such periods
and the financial position at the end of each such period of the Seller and
its
subsidiaries and have been prepared in accordance with GAAP consistently applied
throughout the periods involved, except as set forth in the notes
thereto. There has been no change in the business, operations,
financial condition, properties or assets of the Seller since the date of the
Seller’s financial statements that would have a material adverse effect on its
ability to perform its
21
obligations
under this Agreement, the related Purchase Price and Terms Letter or the related
Assignment and Conveyance;
(n) The
Seller has not dealt with any broker, investment banker, agent or other person
that may be entitled to any commission or compensation in connection with the
sale of the Mortgage Loans; and
(o) 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.
Section
3.02. Representations and Warranties as to
Individual Mortgage Loans.
The
Seller hereby represents and warrants to the Purchaser, as to each Mortgage
Loan, as of the related Closing Date as follows:
(a) The
information set forth in the Mortgage Loan Schedule, including any diskette
or
other related data tapes delivered to the Purchaser, is complete, true and
correct in all material respects as of the related Cut-off Date;
(b) With
respect to a first lien Mortgage Loan that is not a Co-op Loan, the Mortgage
creates a first lien or a first priority ownership interest in an estate in
fee
simple in real property securing the related Mortgage Note. With
respect to a first lien Mortgage Loan that is a Co-op Loan, the Mortgage creates
a first lien or a first priority ownership interest in the stock ownership
and
leasehold rights associated with the cooperative unit securing the related
Mortgage Note;
(c) With
respect to a Second Lien Mortgage Loan that is not a Co-op Loan, the Mortgage
creates a second lien or a second priority ownership interest in an estate
in
fee simple in real property securing the related Mortgage Note. With respect
to
a Second Lien Mortgage Loan that is a Co-op Loan, the Mortgage creates a second
lien or a second priority ownership interest in the stock ownership and
leasehold rights associated with the cooperative unit securing the related
Mortgage Note;
(d) All
payments due on or prior to the related Cut-off Date for such Mortgage Loan
have
been made as of the related Closing Date, the Mortgage Loan is not delinquent
thirty (30) days or more in payment and has not been dishonored; there are
no
material defaults under the terms of the Mortgage Loan; 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 Mortgaged Property subject to the
Mortgage, directly or indirectly, for the payment of any amount required by
the
Mortgage Loan; as to each Mortgage Loan, there has been no more than one thirty
(30) day delinquency during the immediately preceding twelve-month
period;
(e) All
taxes, governmental assessments, insurance premiums, water, sewer and municipal
charges, leasehold payments or ground rents which previously became due and
owing have been paid, or escrow funds have been established in an amount
sufficient to pay for every such escrowed item which remains unpaid and which
has been assessed but is not yet due and payable;
22
(f) The
terms of the Mortgage Note and the Mortgage have not been impaired, waived,
altered or modified in any respect, except by written instruments which have
been recorded to the extent any such recordation is required by law, or,
necessary to protect the interest of the Purchaser. No instrument of
waiver, alteration or modification has been executed in connection with such
Mortgage Loan, and no Mortgagor has been released, in whole or in part, from
the
terms thereof except in connection with an assumption agreement and which
assumption agreement is part of the Mortgage File and the terms of which are
reflected in the Mortgage Loan Schedule; the substance of any such waiver,
alteration or modification has been approved by the issuer of any related
Primary Mortgage Insurance Policy and title insurance policy, to the extent
required by the related policies;
(g) The
Mortgage Note and the Mortgage are not subject to any right of rescission,
set-off, counterclaim or defense, including, without limitation, the defense
of
usury, nor will the operation of any of the terms of the Mortgage Note or the
Mortgage, or the exercise of any right thereunder, render the Mortgage Note
or
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;
(h) All
buildings or other customarily insured improvements upon the Mortgaged Property
are insured by an insurer acceptable under the Xxxxxx Mae Guides, against loss
by fire, hazards of extended coverage and such other hazards as are provided
for
in the Xxxxxx Xxx Guides or by Xxxxxxx Mac, as well as all additional
requirements set forth in Section 4.10 of this Agreement. All such standard
hazard policies are in full force and effect and on the date of origination
contained a standard mortgagee clause naming the Seller and its successors
in
interest and assigns as loss payee and such clause is still in effect and all
premiums due thereon have been paid. If required by the Flood
Disaster Protection Act of 1973, as amended, the Mortgage Loan is covered by
a
flood insurance policy meeting the requirements of the current guidelines of
the
Federal Insurance Administration which policy conforms to Xxxxxx Xxx and Xxxxxxx
Mac requirements, as well as all additional requirements set forth in Section
4.10 of this Agreement. Such policy was issued by an insurer
acceptable under Xxxxxx Mae or Xxxxxxx Mac guidelines. The Mortgage
obligates the Mortgagor thereunder to maintain all such insurance at the
Mortgagor’s cost and expense, and upon the Mortgagor’s failure to do so,
authorizes the holder of the Mortgage to maintain such insurance at the
Mortgagor’s cost and expense and to seek reimbursement therefor from the
Mortgagor. Where required by state law or regulation, the Mortgagor
has been given an opportunity to choose the carrier of the required hazard
insurance, provided the policy is not a “master” or “blanket”
hazard insurance policy covering a condominium, or any hazard
insurance policy
covering the common facilities of a planned unit development. The
hazard insurance policy is the valid and binding obligation of the insurer,
is
in full force and effect, and will be in full force and effect and inure to
the
benefit of the Purchaser upon the consummation of the transactions contemplated
by this Agreement. The Seller has not engaged in, and has no
knowledge of the Mortgagor’s having engaged in, any act or omission which would
impair the coverage of any such policy, the benefits of the endorsement provided
for herein, or the validity and binding effect of either including, without
limitation, no unlawful fee, commission, kickback or other unlawful compensation
or value of any kind has been or will be received, retained or realized by
any
attorney, firm or other person or entity, and no such unlawful items have been
received, retained or realized by the Seller;
23
(i) 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, disclosure, predatory, fair lending
or abusive lending laws applicable to the Mortgage Loan have been complied
with,
the consummation of the transactions contemplated hereby will not involve the
violation of any such laws or regulations, and the Seller shall maintain in
its
possession, available for the Purchaser’s inspection, and shall deliver to the
Purchaser upon demand, evidence of compliance with all such
requirements;
(j) The
Mortgage has not been satisfied, canceled or subordinated, in whole or in part,
or rescinded, and the Mortgaged Property has not been released from the lien
of
the Mortgage, in whole or in part nor has any instrument been executed that
would effect any such release, cancellation, subordination or rescission. The
Seller has not waived the performance by the Mortgagor of any action, if the
Mortgagor’s failure to perform such action would cause the Mortgage Loan to be
in default, nor has the Seller waived any default resulting from any action
or
inaction by the Mortgagor;
(k) With
respect to any first lien Mortgage Loan, the related Mortgage is a valid,
subsisting, enforceable and perfected first lien on the Mortgaged Property
and,
with respect to any Second Lien Mortgage Loan, the related Mortgage is a valid,
subsisting, enforceable and perfected second lien on the Mortgaged Property,
including for Mortgage Loans that are not Co-op Loans, all buildings on the
Mortgaged Property and all installations and mechanical, electrical, plumbing,
heating and air conditioning systems affixed to such buildings, and all
additions, alterations and replacements made at any time with respect to the
foregoing securing the Mortgage Note’s original principal
balance. The Mortgage and the Mortgage Note do not contain any
evidence of any security interest or other interest or right
thereto. Such lien is free and clear of all adverse claims, liens and
encumbrances having priority over the first or second lien, as applicable,
of
the Mortgage subject only to (1) with respect to any Second Lien Mortgage Loan,
the related First Lien, (2) the lien of non-delinquent current real property
taxes and assessments not yet due and payable, (3) covenants, conditions and
restrictions, rights of way, easements and other matters of the public record
as
of the date of recording which are acceptable to mortgage lending institutions
generally and either (A) which are referred to or otherwise considered in the
appraisal made for the originator of the Mortgage Loan, or (B) which do not
adversely affect the appraised value of the Mortgaged Property as set forth
in
such appraisal, and (4) other matters to which like properties are commonly
subject which do not materially interfere with the benefits of the security
intended to be provided by the Mortgage or the use, enjoyment, value or
marketability of the related Mortgaged Property. Any security
agreement, chattel mortgage or equivalent document related to and delivered
in
connection with the Mortgage Loan establishes and creates (1) with respect
to
any first lien Mortgage Loan, a valid, subsisting, enforceable and perfected
first lien and first priority security interest and (2) with respect to any
Second Lien Mortgage Loan, a valid, subsisting, enforceable and perfected second
lien and second priority security interest, in each case, on the property
described therein, and the Seller has the full right to sell and assign the
same
to the Purchaser;
(l) The
Mortgage Note and the related Mortgage are original and genuine and each is
the
legal, valid and binding obligation of the maker thereof, enforceable in all
respects in accordance with its terms, except as such enforcement may be limited
by bankruptcy, insolvency, moratorium, reorganization and other laws of general
application affecting the rights
24
of
creditors generally and the equitable remedy of specific performance and by
general equitable principles. All parties to the Mortgage Note and
the related Mortgage had the legal capacity to enter into the Mortgage Loan
and
to execute and deliver the Mortgage Note and the related
Mortgage. The Mortgage Note and the related Mortgage have been duly
and properly executed by such parties. No fraud, error, omission,
misrepresentation, negligence or similar occurrence with respect to a Mortgage
Loan has taken place on the part of Seller, the Mortgagor or any other party
involved in the origination of the Mortgage Loan. The proceeds of the
Mortgage Loan have been fully disbursed and there is no requirement for future
advances thereunder, and any and all requirements as to completion of any
on-site or off-site improvements and as to disbursements of any escrow funds
therefor have been complied with. All costs, fees and expenses
incurred in making or closing the Mortgage Loan and the recording of the
Mortgage were paid, and the Mortgagor is not entitled to any refund of any
amounts paid or due under the Mortgage Note or related Mortgage;
(m) The
Seller or its Affiliate (or with respect to MERS Mortgage Loans, MERS on behalf
of the Seller or its Affiliate) is the sole owner of record and holder of the
Mortgage Loan and the indebtedness evidenced by the Mortgage Note, and upon
recordation the Purchaser or its designee will be the owner of record of the
Mortgage and the indebtedness evidenced by the Mortgage Note, and upon the
sale
of the Mortgage Loan to the Purchaser, the Seller will retain the Servicing
File
in trust for the Purchaser only for the purpose of servicing and supervising
the
servicing of the Mortgage Loan. Immediately prior to the transfer and
assignment to the Purchaser on the related Closing Date, the Mortgage Loan,
including the Mortgage Note and the Mortgage, were not subject to an assignment
or pledge, and the Seller had good and marketable title to and was the sole
owner thereof and had full right to transfer and sell the Mortgage Loan to
the
Purchaser free and clear of any encumbrance, equity, lien, pledge, charge,
claim
or security interest and has the full right and authority subject to no interest
or participation of, or agreement with, any other party, to sell and assign
the
Mortgage Loan pursuant to this Agreement and following the sale of the Mortgage
Loan, the Purchaser will own such Mortgage Loan free and clear of any
encumbrance, equity, participation interest, lien, pledge, charge, claim or
security interest. The Seller intends to relinquish all rights to
possess, control and monitor the Mortgage Loan, except for the purposes of
servicing the Mortgage Loan as set forth in this Agreement. After the
related Closing Date, the Seller will have no right to modify or alter the
terms
of the sale of the Mortgage Loan and the Seller will have no obligation or
right
to repurchase the Mortgage Loan or substitute another Mortgage Loan, except
as
provided in this Agreement;
(n) Each
Mortgage Loan that is not a Co-op Loan is covered by an ALTA lender’s title
insurance policy or other generally acceptable form of policy or insurance
acceptable to Xxxxxx Xxx or Xxxxxxx Mac, issued by a title insurer acceptable
to
Xxxxxx Mae or Xxxxxxx Mac and qualified to do business in the jurisdiction
where
the Mortgaged Property is located, insuring (subject to the exceptions contained
in (k)(1), (2), (3) and (4) above) the Seller, its successors and assigns,
as to
the first or second priority lien, as applicable, of the Mortgage in the
original principal amount of the Mortgage Loan. Where required by
applicable state law or regulation, the Mortgagor has been given the opportunity
to choose the carrier of the required mortgage title insurance. The
Seller, its successors and assigns, are the sole insureds of such lender’s title
insurance policy, such title insurance policy has been duly and validly endorsed
to the Purchaser or the assignment to the Purchaser of the Seller’s interest
therein does not require
25
the
consent of or notification to the insurer 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 and the related
Purchase Price and Terms Letter. No claims have been made under such
lender’s title insurance policy, and no prior holder of the related Mortgage,
including the Seller, has done, by act or omission, anything which would impair
the coverage of such lender’s title insurance policy, including without
limitation, no unlawful fee, commission, kickback or other unlawful compensation
or value of any kind has been or will be received, retained or realized by
any
attorney, firm or other person or entity, and no such unlawful items have been
received, retained or realized by the Seller;
(o) There
is no default, breach, violation or event of acceleration existing under the
Mortgage or the related 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 permitting acceleration; and
neither the Seller nor, to the Seller’s knowledge, any prior mortgagee has
waived any default, breach, violation or event permitting
acceleration. With respect to each Second Lien Mortgage Loan, (i) the
First Lien is in full force and effect, (ii) there is no default, breach,
violation or event of acceleration existing under such prior mortgage or the
related mortgage note, (iii) no event which, with the passage of time or with
notice and the expiration of any grace or cure period, would constitute a
default, breach, violation or event of acceleration thereunder, and either
(A)
the prior mortgage contains a provision which allows or (B) applicable law
requires, the mortgagee under the Second Lien Mortgage Loan to receive notice
of, and affords such mortgagee an opportunity to cure any default by payment
in
full or otherwise under the prior mortgage;
(p) There
are no mechanics’ or similar liens or claims which have been filed for work,
labor or material (and no rights are outstanding that under law could give
rise
to such liens) affecting the related Mortgaged Property which are or may be
liens prior to or equal to the lien of the related Mortgage, which are not
insured against by the title insurance policy referenced in paragraph (n)
above;
(q) All
improvements subject to the Mortgage which were considered in determining the
Appraised Value of the Mortgaged Property lie wholly within the boundaries
and
building restriction lines of the Mortgaged Property (and wholly within the
project with respect to a condominium unit) and no improvements on adjoining
properties encroach upon the Mortgaged Property except those which are insured
against by the title insurance policy referred to in clause (n) above and all
improvements on the property comply with all applicable zoning and subdivision
laws and ordinances;
(r) The
Mortgage Loan was originated by or for the Seller. The Mortgage Loan
complies with the terms, conditions and requirements of the Underwriting
Standards in all material respects. The Mortgage Notes and Mortgages
(exclusive of any riders) are on forms generally acceptable to Xxxxxx Xxx or
Xxxxxxx Mac. The Mortgage Loan bears interest at the Mortgage
Interest Rate set forth in the related Mortgage Loan Schedule, and Monthly
Payments under the Mortgage Note are due and payable on the first day of each
month. The Mortgage contains the usual and enforceable provisions of
the originator at the time of origination for the acceleration of the payment
of
the unpaid principal amount of the Mortgage Loan if the related
26
Mortgaged
Property is sold or transferred without the prior written consent of the
mortgagee thereunder;
(s) The
Mortgaged Property at origination of the related Mortgage Loan was and, to
the
Seller’s knowledge, currently is free of material damage and
waste. At origination of the Mortgage Loan there was, and there
currently is, no proceeding pending for the total or partial condemnation of
the
Mortgaged Property;
(t) The
related Mortgage contains customary and enforceable provisions such as to render
the rights and remedies of the holder thereof adequate for the realization
against the Mortgaged Property of the benefits of the security provided
thereby. Upon default by a Mortgagor on a Mortgage Loan and
foreclosure on, or trustee’s sale of, the Mortgaged Property pursuant to the
proper procedures, the holder of the Mortgage Loan will be able to deliver
good
and merchantable title to the Mortgaged Property. There is no
homestead or other exemption available to 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 subject to applicable federal and state laws and
judicial precedent with respect to bankruptcy and right of
redemption;
(u) If
the Mortgage constitutes a deed of trust, a trustee, authorized and duly
qualified if required under applicable law to act as such, has been properly
designated and currently so serves and is named in the Mortgage, and no fees
or
expenses, except as may be required by local law, are or will become payable
by
the Purchaser to the trustee under the deed of trust, except in connection
with
a trustee’s sale or attempted sale after default by the Mortgagor;
(v) The
Mortgage File contains an appraisal (or other valuation method as indicated
on
the related Mortgage Loan Schedule and otherwise acceptable to Xxxxxx Mae or
Xxxxxxx Mac for mortgage loans that have “DU” underwriter or loan prospector
approval, respectively) of the related Mortgaged Property signed prior to the
final approval of the mortgage loan application by a Qualified
Appraiser. The appraisal is in a form acceptable to Xxxxxx Mae or
Xxxxxxx Mac;
(w) All
parties which have had any interest in the Mortgage, whether as mortgagee,
assignee, pledgee or otherwise, are (or, during the period in which they held
and disposed of such interest, were) (A) in compliance with any and all
applicable licensing requirements of the laws of the state wherein the Mortgaged
Property is located, and (B) (1) organized under the laws of such state, or
(2)
qualified to do business in such state, or (3) federal savings and loan
associations or national banks or a Federal Home Loan Bank or savings bank
having principal offices in such state, or (4) not doing business in such
state;
(x) The
related Mortgage Note is not and has not been secured by any collateral except
the lien of the corresponding Mortgage and the security interest of any
applicable security agreement or chattel mortgage referred to in clause (k)
above and such collateral does not serve as security for any other
obligation;
(y) The
Mortgage Loan does not contain provisions pursuant to which Monthly Payments
are
paid or partially paid with funds deposited in any separate account
27
established
by the Seller or anyone on behalf of the Mortgagor, or paid by any source other
than the Mortgagor nor does it contain any other similar provisions which may
constitute a “buydown” provision. The Mortgage Loan is not a
graduated payment mortgage loan and the Mortgage Loan does not have a shared
appreciation or other contingent interest feature;
(z) The
Mortgagor was not in bankruptcy or insolvent as of the date of origination
of
the Mortgage Loan and, to the Seller’s knowledge, is not in bankruptcy or
insolvent as of the related Closing Date;
(aa) Each
Fixed Rate Mortgage Loan has an original term to maturity of not more than
thirty (30) years, with interest calculated and payable in arrears on the first
day of each month in equal monthly installments of principal and
interest. Except with respect to Interest Only Mortgage Loans, each
Mortgage Note requires a monthly payment which is sufficient to fully amortize
the original principal balance of the Mortgage Loan fully by the stated maturity
date, over an original term of not more than thirty (30) years and to pay
interest at the related Mortgage Interest Rate; provided, however, in the case
of an Interest Only Mortgage Loan, after the interest-only period, payments
will
be sufficient to amortize with respect to the life of the Mortgage
Loan. No Mortgage Loan contains terms or provisions which would
result in negative amortization. No Mortgage Loan is a Balloon
Mortgage Loan;
(bb) If
a Mortgage Loan has an LTV greater than 80%, the portion of the principal
balance of such Mortgage Loan in excess of the portion of the Appraisal Value
of
the Mortgaged Property required by Xxxxxx Xxx, is and will be insured as to
payment defaults by a Primary Mortgage Insurance Policy issued by a Qualified
Insurer. All provisions of such Primary Mortgage 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. No action, inaction,
or event has occurred and no state of facts exists that has, or will result
in
the exclusion from, denial of, or defense to coverage. Any Mortgage
Loan subject to a Primary Mortgage Insurance Policy obligates the Mortgagor
thereunder to maintain the Primary Mortgage Insurance Policy and to pay all
premiums and charges in connection therewith. The mortgage interest rate for
the
Mortgage Loan as set forth on the related Mortgage Loan Schedule is net of
any
such insurance premium;
(cc) The
Assignment of Mortgage is in recordable form and is acceptable for recording
under the laws of the jurisdiction in which the Mortgaged Property is
located;
(dd) As
to Mortgage Loans that are not Co-op Loans and that are not secured by an
interest in a leasehold estate, the Mortgaged Property is located in the state
identified in the related Mortgage Loan Schedule and consists of a single parcel
of real property with a detached single family residence erected thereon, or
a
townhouse, or a two-to four-family dwelling, or an individual condominium unit
in a condominium project, or an individual unit in a planned unit development
or
a de minimis planned unit development, provided, however, that no
residence or dwelling is a mobile home, log home, geodesic dome or other unique
property type. As of the date of origination, no portion of the
Mortgaged Property was used for commercial purposes, and, since the date of
origination no portion of the Mortgaged Property has been used for commercial
purposes, except as permitted under the Underwriting Standards. In
the case of any Mortgaged Properties that are manufactured homes (a
“Manufactured Home Mortgage Loan”),
28
(i)
such
Manufactured Home Mortgage Loan conforms with the applicable Xxxxxx Mae or
Xxxxxxx Mac requirements regarding mortgage loans related to manufactured
dwellings, (ii) the related manufactured dwelling is permanently affixed to
the
land, (iii) the related manufactured dwelling and the related land are subject
to a Mortgage properly filed in the appropriate public recording office and
naming Seller as mortgagee, (iv) the applicable laws of the jurisdiction in
which the related Mortgaged Property is located will deem the manufactured
dwelling located on such Mortgaged Property to be a part of the real property
on
which such dwelling is located, and (v) such Manufactured Home Mortgage Loan
is
(x) a qualified mortgage under Section 860G(a)(3) of the Internal Revenue Code
of 1986, as amended and (y) secured by manufactured housing treated as a single
family residence under Section 25(e)(10) of the Code. As of the date of
origination, no portion of the Mortgaged Property was used for commercial
purposes, and since the date of origination, no portion of the Mortgaged
Property has been used for commercial purposes; provided, that Mortgaged
Properties which contain a home office shall not be considered as being used
for
commercial purposes as long as the Mortgaged Property has not been altered
for
commercial purposes and is not storing any chemicals or raw materials other
than
those commonly used for homeowner repair, maintenance and/or household
purposes;
(ee) Except
with respect to Interest Only Mortgage Loans, principal payments on the Mortgage
Loan commenced no more than sixty (60) days after the funds were disbursed
in
connection with such Mortgage Loan;
(ff)
No Mortgage Loan imposes a Prepayment Penalty;
(gg) As
of the date of origination of the Mortgage Loan, the Mortgaged Property was
lawfully occupied under applicable law, and 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;
(hh) If
the Mortgaged Property is a condominium unit or a planned unit development
(other than a de minimis planned unit development), or stock in a cooperative
housing corporation, such condominium, cooperative or planned unit development
project meets the Seller’s eligibility requirements as set forth in Underwriting
Standards;
(ii)
There is no pending action or proceeding directly involving the Mortgaged
Property in which compliance with any environmental law, rule or regulation
is
an issue; there is no violation of any environmental law, rule or regulation
with respect to the Mortgage Property; and, to the best of the Seller’s
knowledge, nothing further remains to be done to satisfy in full all
requirements of each such law, rule or regulation constituting a prerequisite
to
use and enjoyment of said property;
(jj)
The related Mortgagor has not notified the Seller, and the Seller has no
knowledge of any relief requested or allowed to the Mortgagor under the
Servicemembers Civil Relief Act or other similar state statute;
29
(kk) No
action has been taken or failed to be taken by the Seller on or prior to the
related Closing Date which has resulted or will result in an exclusion from,
denial of, or defense to coverage under any Primary Mortgage Insurance Policy
(including, without limitation, any exclusions, denials or defenses which would
limit or reduce the availability of the timely payment of the full amount of
the
loss otherwise due thereunder to the insured) whether arising out of actions,
representations, errors, omissions, negligence, or fraud of the Seller, or
for
any other reason under such coverage;
(ll)
Each Mortgage Loan has been serviced in all material respects in compliance
with
Accepted Servicing Practices;
(mm) With
respect to each Co-op Loan, the related Mortgage is a valid, enforceable and
subsisting first security interest on the related cooperative shares securing
the related cooperative note, subject only to (a) liens of the cooperative
for
unpaid assessments representing the Mortgagor’s pro rata share of the
cooperative’s payments for its blanket mortgage, current and future real
property taxes, insurance premiums, maintenance fees and other assessments
to
which like collateral is commonly subject and (b) other matters to which like
collateral is commonly subject which do not materially interfere with the
benefits of the security intended to be provided by the Security
Agreement. There are no liens against or security interest in the
cooperative shares relating to each Co-op Loan (except for unpaid maintenance,
assessments and other amounts owed to the related cooperative which individually
or in the aggregate will not have a material adverse effect on such Co-op Loan),
which have priority over the Seller’s security interest in such cooperative
shares;
(nn) With
respect to each Co-op Loan, a search for filings of financing statements has
been made by a company competent to make the same, which company is acceptable
to Xxxxxx Xxx and qualified to do business in the jurisdiction where the
cooperative unit is located, and such search has not found anything which would
materially and adversely affect the Co-op Loan;
(oo) With
respect to each Co-op Loan, the related cooperative corporation that owns title
to the related cooperative apartment building is a “cooperative housing
corporation” within the meaning of Section 216 of the Code, is held by a person
as a tenant-stockholder (as defined in Section 216 of the Code) and is in
material compliance with applicable federal, state and local laws which, if
not
complied with, could have a material adverse effect on the Mortgaged
Property;
(pp) With
respect to each Co-op Loan, there is no prohibition against pledging the shares
of the cooperative corporation or assigning the Co-op Lease;
(qq) The
Mortgage Loan was originated by a mortgagee approved by the Secretary of Housing
and Urban Development pursuant to sections 203 and 211 of the National Housing
Act, a savings and loan association, a savings bank, a commercial bank, credit
union, insurance company or similar institution which is supervised and examined
by a federal or state authority;
30
(rr) With
respect to any ground lease to which a Mortgaged Property may be subject: (i)
a
true, correct and complete copy of the ground lease and all amendments,
modifications and supplements thereto is included in the Servicing File, and
the
Mortgagor is the owner of a valid and subsisting leasehold interest under such
ground lease; (ii) such ground lease is in full force and effect, unmodified
and
not supplemented by any writing or otherwise except as contained in the Mortgage
File; (iii) all rent, additional rent and other charges reserved therein have
been fully paid to the extent payable as of the related Closing Date; (iv)
the
Mortgagor enjoys the quiet and peaceful possession of the leasehold estate,
subject to any sublease; (v) the Mortgagor is not in default under any of the
terms of such ground lease, and there are no circumstances which, with the
passage of time or the giving of notice, or both, would result in a default
under such ground lease; (vi) the lessor under such ground lease is not in
default under any of the terms or provisions of such ground lease on the part
of
the lessor to be observed or performed; (vii) the lessor under such ground
lease
has satisfied any repair or construction obligations due as of the related
Closing Date pursuant to the terms of such ground lease; (viii) the execution,
delivery and performance of the Mortgage do not require the consent (other
than
those consents which have been obtained and are in full force and effect) under,
and will not contravene any provision of or cause a default under, such ground
lease; (ix) the ground lease term extends beyond the maturity date of the
related Mortgage Loan; and (x) the Purchaser has the right to cure defaults
on
the ground lease;
(ss) With
respect to any broker fees collected and paid on any of the Mortgage Loans,
all
broker fees have been properly assessed to the borrower and no claims will
arise
as to broker fees that are double charged and for which the borrower would
be
entitled to reimbursement;
(tt)
Each Mortgage Loan constitutes a “qualified mortgage” under
Section 860G(a)(3)(A) of the Code and Treasury Regulations Section
1.860G-2(a)(1);
(uu) Except
as provided in Section 2.07, the Mortgage Note, the Mortgage, the Assignment
of
Mortgage and the other documents set forth in Exhibit A-1 and required to be
delivered on the related Closing Date have been delivered to the Purchaser
or
its designee;
(vv) To
the Seller’s knowledge, all information supplied by, on behalf of, or concerning
the Mortgagor is true, accurate and complete and does not contain any statement
that is or will be inaccurate or misleading in any material
respect;
(ww) The
Mortgagor has executed a statement to the effect that the Mortgagor has received
all disclosure materials required by applicable law with respect to the making
of adjustable rate mortgage loans. The Seller shall maintain such
statement in the Servicing File;
(xx)
No Mortgage Loan had a Loan-to-Value Ratio at the time of origination of
more than 100%. No Second Lien Mortgage Loan has an CLTV in excess of
100%;
(yy) Either
(a) no consent for the Second Lien Mortgage Loan is required by the holder
of
the related First Lien or (b) such consent has been obtained and is contained
in
the Mortgage File;
31
(zz) With
respect to any Second Lien Mortgage Loan, the Seller has not received notice
of: (1) any proceeding for the total or partial condemnation of any
Mortgaged Property, (2) any subsequent, intervening mortgage, lien, attachment,
lis pendens or other encumbrance affecting any Mortgaged Property or (3) any
default under any mortgage, lien or other encumbrance senior to each
Mortgage;
(aaa) No
Second Lien Mortgage Loan is a “home equity line of credit”;
(bbb) As
of the Closing Date, the Seller has not received a notice of default of a First
Lien which has not been cured;
(ccc) No
First Lien provides for negative amortization;
(ddd) No
Mortgage Loan is a High Cost Loan or Covered Loan, as applicable and no Mortgage
Loan is covered by HOEPA. No Mortgage Loan originated or modified on or after
October 1, 2002 through March 6, 2003 is governed by the Georgia Fair Lending
Act;
(eee) No
Mortgagor was required to purchase any single premium credit insurance policy
(e.g. life, disability, property, accident, unemployment, or health insurance
product) or debt cancellation agreement as a condition of obtaining the
extension of credit. No Mortgagor obtained a prepaid single-premium
credit insurance policy (e.g. life, mortgage, disability, property, accident,
unemployment or health insurance product) in connection with the origination
of
the Mortgage Loan. No proceeds from any Mortgage Loan were used to
purchase single premium credit insurance policies or debt cancellation
agreements as part of the origination of, or as a condition to closing, such
Mortgage Loan;
(fff)
The origination and servicing practices with respect to each Mortgage Note
and
Mortgage have been legal and in accordance with applicable laws and regulations,
and in all material respects proper and prudent in the mortgage origination
and
servicing business. With respect to escrow deposits and payments that
the Seller is entitled to collect, all such payments are in the possession
of,
or under the control of, the Seller, and there exist no deficiencies in
connection therewith for which customary arrangements for repayment thereof
have
not been made. All escrow payments have been collected and are being
maintained in full compliance with applicable state and federal law and the
provisions of the related Mortgage Note and Mortgage. As to any
Mortgage Loan that is the subject of an escrow, escrow of funds is not
prohibited by applicable law and has been established in an amount sufficient
to
pay for every escrowed item that remains unpaid and has been assessed but is
not
yet due and payable. No escrow deposits or other charges or payments
due under the Mortgage Note have been capitalized under any Mortgage or the
related Mortgage Note. All Mortgage Interest Rate adjustments have been made
in
strict compliance with state and federal law and the terms of the related
Mortgage Note. Any interest required to be paid pursuant to state and
local law has been properly paid and credited;
(ggg) No
Mortgage Loan is a Convertible Mortgage Loan;
(hhh) With
respect to each Adjustable Rate Mortgage Loan, the Mortgage Loan Documents
provide that after the related first Interest Rate Adjustment Date, a related
Mortgage
32
Loan
may
only be assumed if the party assuming such Mortgage Loan meets certain credit
requirements stated in the Mortgage Loan Documents;
(iii)
Any future advances made to the Mortgagor prior to the applicable Cut-off Date
have been consolidated with the outstanding principal amount secured by the
Mortgage, and the secured principal amount, as consolidated, bears a single
interest rate and single repayment term. The lien of the Mortgage
securing the consolidated principal amount is expressly insured as having first
lien priority by a title insurance policy, an endorsement to the policy insuring
the Mortgagee’s consolidated interest or by other title evidence acceptable to
Xxxxxx Mae and Xxxxxxx Mac. The consolidated principal amount does
not exceed the original principal amount of the Mortgage Loan;
(jjj)
There is no proceeding pending or threatened for the total or partial
condemnation of the Mortgaged Property. The Mortgaged Property is
undamaged by waste, fire, earthquake or earth movement, windstorm, flood,
tornado or other casualty so as to affect adversely the value of the Mortgaged
Property as security for the Mortgage Loan or the use for which the premises
were intended and each Mortgaged Property is in good repair. There
have not been any condemnation proceedings with respect to the Mortgaged
Property and the Seller has no knowledge of any such proceedings in the
future;
(kkk) No
Mortgage Loan was made in connection with the construction (other than a
“construct-to-perm” loan) or rehabilitation of a Mortgaged Property or
facilitating the trade-in or exchange of a Mortgaged Property (other than a
tax
deferred exchange under Section 1031 of the Code);
(lll)
If applicable, with respect to each Mortgage, the Seller has within the last
twelve months (unless such Mortgage was originated within such twelve month
period) analyzed the required Escrow Payments for each Mortgage and adjusted
the
amount of such payments so that, assuming all required payments are timely
made,
any deficiency will be eliminated on or before the first anniversary of such
analysis, or any overage will be refunded to the Mortgagor, in accordance with
RESPA and any other applicable law;
(mmm) As
to each consumer report (as defined in the Fair Credit Reporting Act, Public
Law
91-508) or other credit information furnished by the Seller to the Purchaser,
the Seller has full right and authority and is not precluded by law or contract
from furnishing such information to the Purchaser and the Purchaser is not
precluded from furnishing the same to any subsequent or prospective purchaser
of
such Mortgage. The Seller has and shall in its capacity as servicer,
for each Mortgage Loan, fully furnished, in accordance with the Fair Credit
Reporting Act and its implementing regulations, accurate and complete
information (e.g., favorable and unfavorable) on its borrower credit files
to
Equifax, Experian and Trans Union Credit Information Company (three of the
credit repositories), on a monthly basis;
(nnn) If
the Mortgage Loan is secured by a leasehold estate, (1) the ground lease is
assignable or transferable; (2) the ground lease will not terminate earlier
than
five years after the maturity date of the Mortgage Loan; (3) the ground lease
does not provide for termination of the lease in the event of lessee’s default
without the Mortgagee being entitled to receive written notice of, and a
reasonable opportunity to cure the default; (4) the ground lease permits the
33
mortgaging
of the related Mortgaged Property; (5) the ground lease protects the Mortgagee’s
interests in the event of a property condemnation; (6) all ground lease rents,
other payments, or assessments that have become due have been paid; and (7)
the
use of leasehold estates for residential properties is a widely accepted
practice in the jurisdiction in which the Mortgaged Property is
located;
(ooo) Each
Mortgage Loan is covered by a paid in full, life of loan, tax service contract
issued by First American Real Estate Tax Service, and such contract is
transferable;
(ppp) The
Seller’s decision to originate any mortgage loan or to deny any mortgage loan
application is an independent decision based upon Seller’s underwriting
guidelines, and is in no way made as a result of Purchaser’s decision to
purchase, or not to purchase, or the price Purchaser may offer to pay for,
any
such mortgage loan, if originated;
(qqq) Each
original Mortgage was recorded and all subsequent assignments of the original
Mortgage (other than the assignment to the Purchaser and any Mortgage Loan
for
which the related Mortgage has been recorded in the name of MERS) have been
recorded in the appropriate jurisdictions wherein such recordation is necessary
to perfect the lien thereof as against creditors of the Seller, or is in the
process of being recorded;
(rrr) On
or prior to the related Closing Date, the Mortgagor has not filed a bankruptcy
petition or has not become the subject of involuntary bankruptcy proceedings
or
has not consented to the filing of a bankruptcy proceeding against it or to
a
receiver being appointed in respect of the related Mortgaged
Property;
(sss) No
Mortgagor with respect to any Mortgage Loan originated on or after August 1,
2004 is required under the Mortgage or Mortgage Note to submit to arbitration
to
resolve any dispute arising out of or relating in any way to the mortgage loan
transaction;
(ttt) The
Seller has complied with all applicable anti-money laundering laws, executive
orders and regulations, including without limitation the USA Patriot Act of
2001;
(uuu) The
Mortgage Note, the Mortgage, the Assignment of Mortgage and any other documents
required to be delivered with respect to each Mortgage Loan pursuant to Section
2.07 of this Agreement shall be delivered to the Purchaser or its designee
all
in compliance with the specific requirements of Section 2.07. With
respect to each Mortgage Loan, the Seller will be in possession of a complete
Mortgage File in compliance with Exhibit A-1 hereto, except for such
documents as will be delivered to the Purchaser or its designee;
(vvv) With
respect to each Adjustable Rate Mortgage Loan, the Minimum Mortgage Interest
Rate is the related Gross Margin;
(www) The
Seller has no knowledge of any circumstances or conditions with respect to
the
related Mortgage, Mortgaged Property, Mortgagor, Mortgage File or the related
Mortgagor’s credit standing that can reasonably be expected to cause private
institutional investors that invest in prime mortgage loans similar to the
Mortgage Loan to regard the Mortgage Loan as an unacceptable
investment;
34
(xxx) With
respect to the Mortgage Loans, the Mortgagor was offered mortgage loan products
suitable for such Mortgagor and not designed for less creditworthy
borrowers;
(yyy) The
methodology used in underwriting the extension of credit for each Mortgage
Loan
employs objective criteria which relate the Mortgagor ’s income, assets and
liabilities (except in the case of loan programs which do not require the
Mortgagor to report the Mortgagor ’s income or assets, such as “no income, no
assets” lending programs or which rely on the Mortgagor ’s representation of the
Mortgagor ’s income, such as “stated income” lending programs) to the proposed
payment and such underwriting methodology does not rely on the extent of the
Mortgagor ’s equity in the collateral as the principal determining factor in
approving such credit extension. Such underwriting methodology
determined that at the time of origination (application/approval) the Mortgagor
had the reasonable ability to make timely payments on the Mortgage Loan;
and
(zzz) No
Mortgagor was charged Points and Fees, whether or not amortized or financed,
greater than 5% of the principal amount of such Mortgage Loan. For
purposes of this representation, such 5% limitation is calculated in accordance
with Xxxxxx Mae's anti-predatory lending requirements as set forth in the Xxxxxx
Mae Guides and Points and Fees (x) include origination, underwriting, broker
and
finder fees and charges that the Mortgagee imposed as a condition of making
the
Mortgage Loan, whether they are paid to the Mortgagee or a third party, and
(y)
exclude bona fide discount points, fees paid for actual services rendered in
connection with the origination of the Mortgage Loan (such as attorneys' fees,
notaries fees and fees paid for property appraisals, credit reports, surveys,
title examinations and extracts, flood and tax certifications, and home
inspections), the cost of mortgage insurance or credit-risk price adjustments,
the costs of title, hazard, and flood insurance policies, state and local
transfer taxes or fees, escrow deposits for the future payment of taxes and
insurance premiums, and other miscellaneous fees and charges which miscellaneous
fees and charges, in total, do not exceed 0.25% of the principal amount of
such
Mortgage Loan (collectively, “Points and Fees”). All fees and charges
(including finance charges) and whether or not financed, assessed, collected
or
to be collected in connection with the origination and servicing of each
Mortgage Loan has been disclosed in writing to the Mortgagor in accordance
with
applicable state and federal law and regulation.
Section
3.03. Repurchase; Substitution.
It
is
understood and agreed that the representations and warranties set forth in
Sections 3.01 and 3.02 shall survive the sale of the Mortgage Loans and delivery
of the Mortgage File to the Purchaser, or its designee, 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 Loan Document. Upon discovery
by the Seller or the Purchaser of a breach of any of the foregoing
representations and warranties which materially and adversely affects the value
of the Mortgage Loans or the interest of the Purchaser in any Mortgage Loan,
the
party discovering such breach shall give prompt written notice to the
others. The Seller shall have a period of ninety (90) days from the
earlier of its discovery or its receipt of notice of any such breach within
which to correct or cure such breach. The Seller hereby covenants and
agrees that (except as provided in the previous sentence with respect to certain
breaches for which no substitution is permitted) if any such
35
breach
is
not corrected or cured within such ninety (90) day period, the Seller shall,
at
the Purchaser’s option, either repurchase such Mortgage Loan at the Repurchase
Price or substitute a mortgage loan for the Defective Mortgage Loan as provided
below. In the event that any such breach shall involve any
representation or warranty set forth in Section 3.01, and such breach is not
cured within ninety (90) of the earlier of either discovery by or notice to
the
Seller of such breach, all affected Mortgage Loans shall, at the option of
the
Purchaser, be repurchased by the Seller at the Repurchase Price. Any
such repurchase shall be accomplished by deposit in the Custodial Account of
the
amount of the Repurchase Price.
Notwithstanding
the foregoing paragraph, any breach of any representation
or warranty set forth in any of clause (i), (dd), (ff), (tt), (ddd),
(eee), (mmm), (sss), (xxx), (yyy) or (zzz) of Section 3.02 shall
automatically be deemed to have had a material and adverse effect on the
Purchaser. With respect to each such affected Mortgage Loan, the
Seller shall, within sixty (60) days after the earlier of either discovery
by,
or notice to, the Seller of such breach, repurchase such Mortgage
Loan at the Repurchase Price.
If
pursuant to the foregoing provisions 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 the 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 as
the beneficial holder of such Mortgage Loan.
If
the
Seller is required to repurchase any Mortgage Loan pursuant to this Section
3.03
as a result of a breach of any of the representations and warranties set forth
in Section 3.02, the Seller may, with the Purchaser’s prior consent, which
consent shall not be unreasonably withheld, within 180 days from the related
Closing Date, remove such defective Mortgage Loan from the terms of this
Agreement and substitute another mortgage loan for such defective Mortgage
Loan,
in lieu of repurchasing such defective Mortgage Loan. Any substitute
Mortgage Loan shall (a) have a principal balance at the time of substitution
not
in excess of the principal balance of the defective Mortgage Loan (the amount
of
any difference, plus one month’s interest thereon at the Mortgage Interest Rate
borne by the defective Mortgage Loan, being paid by the Seller and deemed to
be
a Principal Prepayment to be deposited by the Seller in the Custodial Account),
(b) have a Mortgage Interest Rate not less than, and not more than one
percentage point greater than, the Mortgage Interest Rate of the removed
Mortgage Loan, (c) have a remaining term to stated maturity not later than,
and
not more than one year less than, the remaining term to stated maturity of
the
removed Mortgage Loan, (d) have a Loan-to-Value Ratio at origination no greater
than that of the removed Mortgage Loan, (e) with respect to any Second Lien
Mortgage Loan, have an Combined Loan-to-Value Ratio at origination no greater
than that of the removed Mortgage Loan, (f) have the same lien priority as
that
of the removed Mortgage Loan and (g) be, in the reasonable determination of
the
Purchaser, in material compliance with the representations and warranties
contained in this Agreement and described in Section 3.02 as of the date of
substitution.
The
Seller shall amend the related Mortgage Loan Schedule to reflect the withdrawal
of the removed Mortgage Loan from this Agreement and the substitution of such
substitute Mortgage Loan therefor. Upon such amendment, the Purchaser
shall review the
36
Mortgage
File delivered to it relating to the substitute Mortgage Loan. The
Monthly Payment on a substitute Mortgage Loan due on the Due Date in the month
of substitution shall be the property of the Seller and the Monthly Payment
on
the Defective Mortgage Loan for which the substitution is made due on the such
date shall be the property of the Purchaser.
It
is
understood and agreed that the obligation of the Seller set forth in this
Section 3.03 to cure, repurchase or substitute for a defective Mortgage Loan,
and to indemnify Purchaser pursuant to Section 7.01, constitutes the sole
remedies of the Purchaser respecting a breach of the foregoing representations
and warranties. If the Seller fails to repurchase or substitute for a
defective Mortgage Loan in accordance with this Section 3.03, or fails to cure
a
defective Mortgage Loan to Purchaser’s reasonable satisfaction in accordance
with this Section 3.03, or to indemnify Purchaser pursuant to Section 7.01,
that
failure shall, upon compliance by the Purchaser with the next to the last
paragraph of this Section 3.03, be an Event of Default and the Purchaser shall
be entitled to pursue all available remedies. No provision of this
paragraph shall affect the rights of the Purchaser to terminate this Agreement
for cause, as set forth in Sections 8.01 and 9.01.
Any
cause
of action against the Seller relating to or arising out of the breach of any
representations and warranties made in Sections 3.01 and 3.02 shall accrue
as to
any Mortgage Loan upon (i) the earlier of discovery of such breach by the Seller
or notice thereof by the Purchaser to the Seller, (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 this
Agreement.
In
the
event that any Mortgage Loan is held by a REMIC, notwithstanding any contrary
provision of this Agreement, with respect to any Mortgage Loan that is not
in
default or as to which no default is imminent, Purchaser may, in connection
with
any repurchase or substitution of a Defective Mortgage Loan pursuant to this
Section 3.03, require that the Seller deliver, at the Seller’s expense, an
Opinion of Counsel to the effect that such repurchase or substitution will
not
(i) result in the imposition of taxes on “prohibited transactions” of such REMIC
(as defined in Section 860F of the Code) or otherwise subject the REMIC to
tax,
or (ii) cause the REMIC to fail to qualify as a REMIC at any time.
Section
3.04. Repurchase of Mortgage Loans with First
Payment Defaults.
If
a
Mortgagor is thirty (30) days or more delinquent with respect to the first
Monthly Payment due to the Purchaser on the related Mortgage Loan immediately
following the related Closing Date, the Seller, at the Purchaser’s option, shall
promptly repurchase such Mortgage Loan from the Purchaser within thirty (30)
calendar days’ of receipt of written notice from the Purchaser. Any
repurchase pursuant to this Section 3.04 shall be effected in accordance with
the procedures set forth in Section 3.03 hereof, however, any such repurchase
shall be made at the Repurchase Price.
Section
3.05. Purchase Price
Protection.
With
respect to any Mortgage Loan that prepays in full during the first sixty (60)
days following the related Closing Date, the Seller shall reimburse the
Purchaser the amount (if
37
any)
by
which the Purchase Price paid by the Purchaser to the Seller exceeded 100%
of
the outstanding scheduled principal balance of the Mortgage Loan as of the
related Cut-off Date, within thirty (30) days of such payoff. Upon
any assignment of a Mortgage Loan and/or this Agreement, the Purchaser may
at
its option retain its rights under this Section 3.05 notwithstanding such
assignment.
ARTICLE
IV
ADMINISTRATION
AND SERVICING OF THE MORTGAGE LOANS
Section
4.01. The Seller to Act as
Servicer.
The
Seller, as independent contract servicer, shall service and administer the
Mortgage Loans in accordance with this Agreement and with Accepted Servicing
Practices, and shall have full power and authority, acting alone or through
subservicers or agents, 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 and
with
Accepted Servicing Practices. The Seller shall service and administer the
Mortgage Loans through the exercise of the same care that it customarily employs
for its own account. The Seller may perform its servicing
responsibilities through agents or independent contractors, but shall not
thereby be released from any of its responsibilities
hereunder. Notwithstanding anything to the contrary, the Seller may
delegate any of its duties under this Agreement to one or more of its Affiliates
without regard to any of the requirements of this Section; provided,
however, that the Seller shall not be released from any of its
responsibilities hereunder by virtue of such delegation.
Except
as
set forth in this Agreement, the Seller shall service the Mortgage Loans in
compliance with the servicing provisions of the Xxxxxx Xxx Guides (special
servicing option), which include, but are not limited to, provisions regarding
the liquidation of Mortgage Loans, the collection of Mortgage Loan payments,
the
payment of taxes, insurance and other charges, the maintenance of hazard
insurance with a Qualified Insurer, the maintenance of mortgage impairment
insurance, the maintenance of fidelity bond and errors and omissions insurance,
inspections, the restoration of Mortgaged Property, the maintenance of Primary
Mortgage Insurance Policies, insurance claims, the title, management of REO
Property, permitted withdrawals with respect to REO Property, liquidation
reports, and reports of foreclosures and abandonments of Mortgaged Property,
the
transfer of Mortgaged Property, the release of Mortgage Files, annual
statements, and examination of records and facilities. In the event
of any conflict, inconsistency or discrepancy between any of the servicing
provisions of this Agreement and any of the servicing provisions of the Xxxxxx
Mae Guides, the provisions of this Agreement shall control and be binding upon
the Purchaser and the Seller.
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 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
is
not materially adverse to the Purchaser, provided, however, that unless
the Mortgagor is in default with respect to the Mortgage Loan, or such default
is, in the judgment of the Seller, imminent, and the Seller has obtained the
prior written consent of the Purchaser, the Seller shall not permit any
modification
38
with
respect to any Mortgage Loan that would which change the Mortgage Interest
Rate,
forgive the payment of any principal or interest, reduce or increase the
outstanding principal balance (except for actual payments of principal), make
any future advances or extend the final maturity date, as the case may be,
with
respect to such Mortgage Loan. In the event of any such modification
that permits the deferral of interest or principal payments on any Mortgage
Loan, the Seller shall, on the Business Day immediately preceding the Remittance
Date in any month in which any such principal or interest payment has been
deferred, deposit in the Custodial Account from its own funds, in accordance
with Section 4.04, the difference between (a) the otherwise scheduled Monthly
Payment and (b) the amount paid by the Mortgagor. The Seller shall be
entitled to reimbursement for such advances to the same extent as for all other
advances pursuant to Section 4.05. Without limiting the generality of
the foregoing, the Seller shall continue, and is hereby authorized and empowered
by the Purchaser when the Seller believes it appropriate and reasonable in
its
best judgment, to prepare, execute and deliver, all instruments of satisfaction
or cancellation, or of partial or full release, discharge and all other
comparable instruments, with respect to the Mortgage Loans and with respect
to
the Mortgaged Properties and to institute foreclosure proceedings or obtain
a
deed-in-lieu of foreclosure so as to convert the ownership of such properties,
and to hold or cause to be held title to such properties, on behalf of the
Purchaser pursuant to the provisions of Section 4.13. Notwithstanding
anything herein to the contrary, the Seller may not enter into a forbearance
agreement or similar arrangement with respect to any Mortgage Loan which runs
more than 180 days after the first delinquent Due Date without the prior consent
of the Purchaser. Any such agreement shall be approved by any
applicable holder of a Primary Mortgage Insurance Policy, if
required.
The
Seller is authorized and empowered by the Purchaser, in its own name, when
the
Seller believes it appropriate in its reasonable judgment to register any
Mortgage Loan on the MERS® System, or cause the removal from the registration of
any Mortgage Loan on the MERS® System, to execute and deliver, on behalf of the
Purchaser, any and all instruments of assignment and other comparable
instruments with respect to such assignment or re-recording of a Mortgage in
the
name of MERS, solely as nominee for the Purchaser and its successors and
assigns.
With
respect to requests by the Seller to modify the terms of any Mortgage Loan
or to
enter into any forbearance agreement, the Purchaser shall be deemed to have
given consent in connection with a particular matter if the Purchaser does
not
affirmatively grant or deny consent within twenty-one (21) calendar days from
the date the Purchaser receives a written request for consent for such matter
from the Seller.
The
Seller shall accurately and fully report its borrower credit files related
to
the Mortgage Loans to Equifax, Transunion and Experian in a timely
manner.
Section
4.02. Collection of Mortgage Loan
Payments.
Continuously
from the date hereof until the date each Mortgage Loan ceases to be serviced
subject to this Agreement, the Seller will 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, Accepted Servicing Practices, and the terms and provisions of related
Primary Mortgage Insurance Policy, follow such collection
39
procedures
as it follows with respect to mortgage loans comparable to the Mortgage Loans
and held for its own account. Further, the Seller will take special
care in ascertaining and estimating annual escrow payments, and all other
charges that, as provided in the Mortgage, will become due and payable, so
that
the installments payable by the Mortgagors will be sufficient to pay such
charges as and when they become due and payable.
Section
4.03. Realization Upon Defaulted Mortgage
Loans.
The
Seller shall use commercially reasonable efforts, consistent with the procedures
that the Seller would use in servicing loans for its own account, Accepted
Servicing Practices, any Primary Mortgage Insurance and the best interest of
Purchaser, to foreclose upon or otherwise comparably convert the ownership
of
properties securing such of the Mortgage Loans as come into and continue in
default and as to which no satisfactory arrangements can be made for collection
of delinquent payments pursuant to Section 4.01. Foreclosure or
comparable proceedings shall be initiated pursuant to Xxxxxx Xxx guidelines
and
applicable state law with respect to Mortgaged Properties for which no
satisfactory arrangements can be made for collection of delinquent
payments. The Seller shall use its best efforts to realize upon
defaulted Mortgage Loans in such 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 the Mortgaged Property
shall have suffered damage, the Seller shall not be required to expend its
own
funds toward the restoration of such property unless it shall determine in
its
discretion (i) that such restoration will increase the proceeds of liquidation
of the related Mortgage Loan to the 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 Section 4.05. The Seller shall notify
the Purchaser in writing (which may be by electronic mail) of the commencement
of foreclosure proceedings. The Seller shall be responsible for all
costs and expenses incurred by it in any such proceedings or functions;
provided, however, that it shall be entitled to reimbursement thereof
from the related property, as contemplated in Section
4.05. Notwithstanding anything to the contrary contained herein, in
connection with a foreclosure or acceptance of a deed in lieu of foreclosure,
in
the event the Seller has reasonable cause to believe that a Mortgaged Property
is contaminated by hazardous or toxic substances or wastes, or if the Purchaser
otherwise requests an environmental inspection or review of such Mortgaged
Property, such an inspection or review is to be conducted by a qualified
inspector at the Purchaser’s expense. Upon completion of the
inspection, the Seller shall promptly provide the Purchaser with a written
report of the environmental inspection. After reviewing the
environmental inspection report, the Purchaser shall determine how the Seller
shall proceed with respect to the Mortgaged Property.
In
the
event that a Mortgage Loan becomes part of a REMIC, and becomes REO Property,
such property shall be disposed of by the Seller, with the consent of the
Purchaser as required pursuant to this Agreement, within three (3) years after
becoming an REO Property, unless the Seller provides to the trustee under such
REMIC an opinion of counsel to the effect that the holding of such REO Property
subsequent to three years after its becoming REO Property, will not result
in
the imposition of taxes on “prohibited transactions” as defined in Section 860F
of the Code, or cause the transaction to fail to qualify as a REMIC at any
time
that certificates are outstanding. The Seller shall manage, conserve,
protect and operate each such
40
REO
Property for the certificateholders solely for the purpose of its prompt
disposition and sale in a manner which does not cause such property to fail
to
qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of
the Code, or any “net income from foreclosure property” which is subject to
taxation under the REMIC provisions of the Code. Pursuant to its
efforts to sell such property, the Seller shall either itself or through an
agent selected by the Seller, protect and conserve such property in the same
manner and to such an extent as is customary in the locality where such property
is located. Additionally, the Seller shall provide the Purchaser or
any master servicer with information sufficient to perform the tax withholding
and reporting related to Sections 1445 and 6050J of the Code.
Section
4.04. 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 with
a
commercial bank, a savings bank or a savings and loan association (which may
be
a depository Affiliate of the Seller) which meets the guidelines set forth
by
Xxxxxx Mae or Xxxxxxx Mac as an eligible depository institution for custodial
accounts. Each Custodial Account shall be an Eligible
Account. Funds deposited in a Custodial Account may be drawn on in
accordance with Section 4.05. The creation of any Custodial Account
shall be evidenced by a letter agreement in the form shown in Exhibit B
hereto. The original of such letter agreement shall be furnished to
the Purchaser on the initial Closing Date, and upon the request of any
subsequent purchaser.
The
Seller shall deposit in the Custodial Account on a daily basis, within one
(1)
Business Day of receipt thereof, and retain therein the following payments
and
collections received or made 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, on the
Mortgage Loans;
(ii) all
payments on account of interest on the Mortgage Loans adjusted to the Mortgage
Loan Remittance Rate;
(iii) all
Liquidation Proceeds;
(iv) any
amounts required to be deposited by the Seller in connection with any REO
Property pursuant to Section 4.13;
(v) all
Insurance Proceeds including amounts required to be deposited pursuant to
Sections 4.08, 4.10 and 4.11, 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 Accepted Servicing Practices,
the
loan documents or applicable law;
41
(vi) 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;
(vii) any
Monthly Advances;
(viii) Compensating
Interest, if any, for the month of distribution. Such deposit shall
be made from the Seller’s own funds, without reimbursement
therefor;
(ix) all
proceeds of any Mortgage Loan repurchased in accordance with Sections
3.03;
(x) any
amounts required to be deposited by the Seller pursuant to Section 4.11 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; and
(xi) any
amounts required to be deposited in the Custodial Account pursuant to Section
4.01 or Section 6.02.
The
foregoing requirements for deposit in the Custodial Account shall be exclusive,
it being understood and agreed that, without limiting the generality of the
foregoing, payments in the nature of late payment charges, assumption fees
and
other ancillary fees, to the extent permitted by Section 6.01, need not be
deposited by the Seller in the Custodial Account.
The
Seller may invest the funds in the Custodial Account in Eligible Investments
designated in the name of the Seller for the benefit of the Seller, which shall
mature not later than the Business Day next preceding the Remittance Date next
following the date of such investment (except that (A) any investment in the
Eligible Institution with which the Custodial Account is maintained may mature
on such Remittance Date and (B) any other investment may mature on such
Remittance Date if the Seller shall advance funds on such Remittance Date,
pending receipt thereof to the extent necessary to make distributions to the
Purchaser) and shall not be sold or disposed of prior to
maturity. Notwithstanding anything to the contrary herein and above,
all income and gain realized from any such investment shall be for the benefit
of the Seller and shall be subject to withdrawal by the Seller from the
Custodial Account pursuant to Section 4.05(iv). The amount of any
losses incurred in respect of any such investments shall be deposited in the
Custodial Account by the Seller out of its own funds immediately as
realized.
Section
4.05. 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 payments to the Purchaser in the amounts and in the manner provided for
in
Section 5.01;
42
(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
Fee) of principal and/or interest 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 the Purchaser, except that, where the
Seller is required to repurchase a Mortgage Loan, pursuant to Section 3.03,
the
Seller’s right to such reimbursement shall be subsequent to the payment to the
Purchaser of the Repurchase Price pursuant to such Section and all other amounts
required to be paid to the Purchaser with respect to such Mortgage
Loan;
(iii) to
reimburse itself for unreimbursed Servicing Advances and any unpaid Servicing
Fees, the Seller’s right to reimburse itself pursuant to this subclause (iii)
with respect to any Mortgage Loan being limited to related proceeds from
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds and REO
Disposition Proceeds;
(iv) to
pay to itself as part of its servicing compensation: (a) any interest earned
on
funds or any investment earnings in the Custodial Account net of any losses
on
such investments (all such amounts to be withdrawn monthly not later than each
Remittance Date), and (b) to the extent not otherwise retained, the Servicing
Fee from that portion of any payment or recovery as to interest with respect
to
a particular Mortgage Loan;
(v) to
pay to itself with respect to each Mortgage Loan that has been repurchased
pursuant to Section 3.03 all amounts received thereon and not distributed as
of
the date on which the related Repurchase Price is determined;
(vi) to
reimburse itself for unreimbursed Monthly Advances and Servicing Advances to
the
extent not fully reimbursed pursuant to Section 4.05(ii) or (iii)
above;
(vii) to
transfer funds to another Eligible Account in accordance with Section 4.09
hereof;
(viii) to
remove funds inadvertently placed in the Custodial Account by the Seller or
for
which amounts previously deposited are returned unpaid by the related
Mortgagor’s banking institution; and
(ix) to
clear and terminate the Custodial Account upon the termination of this
Agreement.
Section
4.06. Establishment of Escrow Accounts; Deposits
in 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. Each Escrow Account shall be an Eligible
Account. Funds deposited in the Escrow Account may be
43
drawn
on
by the Seller in accordance with Section 4.07. The creation of any
Escrow Account shall be evidenced by a letter agreement in the form shown in
Exhibit C. The original of such letter agreement shall be
furnished to the Purchaser on the initial Closing Date, and upon request to
any
subsequent purchaser.
The
Seller shall deposit in the Escrow Account or Accounts on a daily basis, within
two (2) Business Days of receipt thereof, and retain therein:
(i) all
Escrow Payments collected on account of the Mortgage Loans, for the purpose
of
effecting timely payment of any such items as required under the terms of this
Agreement;
(ii) all
Insurance Proceeds which are to be applied to the restoration or repair of
any
Mortgaged Property; and
(iii) all
Servicing Advances for Mortgagors whose Escrow Payments are insufficient to
cover escrow disbursements.
The
Seller shall make withdrawals from the Escrow Account 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 Section 4.07. The Seller
shall be entitled to retain any interest paid on funds deposited in an 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 such Escrow Account is non-interest bearing or that interest paid thereon
is insufficient for such purposes.
Section
4.07. Permitted Withdrawals from the Escrow
Account.
Withdrawals
from the Escrow Account may be made by the Seller only:
(i) to
effect timely payments of ground rents, taxes, assessments, water rates, Primary
Mortgage Insurance Policy premiums, if applicable, fire and hazard insurance
premiums, condominium assessments and comparable items for the related
Mortgage;
(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;
44
(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;
(vii) to
clear and terminate the Escrow Account on the termination of this
Agreement;
(viii) to
pay to the Mortgagors or other parties Insurance Proceeds deposited in
accordance with Section 4.06;
(ix) to
remove funds inadvertently placed in the Escrow Account by the Seller or for
which amounts previously deposited are returned unpaid by the related
Mortgagor’s banking institution; and
(x) to
clear and terminate the Escrow Account upon the termination of this
Agreement.
Section
4.08. Payment of Taxes, Insurance and Charges;
Maintenance of Primary Mortgage Insurance; Collections
Thereunder.
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 mortgage insurance premiums (if any) and fire and hazard
insurance coverage and shall obtain, from time to time, all bills for the
payment of such charges, including renewal premiums and shall effect payment
thereof prior to the applicable penalty or termination date 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 or 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 ground rents, taxes, assessments, water rates and other
charges and shall effect timely payments of all such bills irrespective of
the
Mortgagor’s faithful performance in the payment of same or the making of the
Escrow Payments and shall make advances from its own funds to effect such
payments subject to its ability to recover such Servicing Advances pursuant
to
Sections 4.05(ii), (iii) and (vi). Notwithstanding the foregoing, if
the Seller reasonably determines that any such Servicing Advance would not
be
recoverable from amounts collected on the related Mortgage Loan, the Seller
shall have no obligation to make such Servicing Advance. Any such
determination shall be evidenced by an Officer’s Certificate delivered to the
Purchaser indicating the reasons therefor.
The
Seller will maintain in full force and effect Primary Mortgage Insurance
Policies issued by a Qualified Insurer with respect to each first lien Mortgage
Loan for which such coverage is herein required. Such coverage will
be maintained until the Loan-to-Value ratio of the related Mortgage Loan is
reduced to the amount for which Xxxxxx Mae no longer requires such insurance
to
be maintained. The Seller will not cancel or refuse to renew any
Primary Mortgage Insurance Policy in effect on the related Closing Date that
is
required to be kept in force under this Agreement unless a replacement Primary
Mortgage Insurance Policy for
45
such
canceled 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 Mortgage Insurance 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 Section 6.01, the
Seller shall promptly notify the insurer under the related Primary Mortgage
Insurance 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 Mortgage Insurance Policy. If such Primary Mortgage
Insurance Policy is terminated as a result of such assumption or substitution
of
liability, the Seller shall obtain a replacement Primary Mortgage 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 Mortgage Insurance Policy in a timely fashion in accordance with the
terms of such Primary Mortgage Insurance Policy and, in this regard, to take
such action as shall be necessary to permit recovery under any Primary Mortgage
Insurance Policy respecting a defaulted first lien Mortgage
Loan. Pursuant to Section 4.04, any amounts collected by the Seller
under any Primary Mortgage Insurance Policy shall be deposited in the Custodial
Account, subject to withdrawal pursuant to Section 4.05.
Section
4.09. Transfer of Accounts.
The
Seller may transfer a Custodial Account or an Escrow Account to a different
Eligible Account from time to time. Such transfer shall be made only
upon providing notice of the transfer to the Purchaser.
Section
4.10. Maintenance of Hazard
Insurance.
The
Seller shall cause to be maintained for each Mortgage Loan fire and hazard
insurance with extended coverage as is acceptable to Xxxxxx Xxx or Xxxxxxx
Mac
and customary in the area where the Mortgaged Property is located in an amount
which is equal to the lesser of (i) the maximum insurable value of the
improvements securing such Mortgage Loan and (ii) the greater of (a) the
outstanding principal balance of the Mortgage Loan, and (b) an amount such
that
the proceeds thereof shall be sufficient to prevent the Mortgagor and/or the
mortgagee from becoming a co-insurer. If required by the Flood Disaster
Protection Act of 1973, as amended, each Mortgage Loan shall be covered by
a
flood insurance policy meeting the requirements of the current guidelines of
the
Federal Insurance Administration in effect with an insurance carrier acceptable
to Xxxxxx Mae or Xxxxxxx Mac, in an amount representing coverage not less than
the least of (i) the outstanding principal balance of the Mortgage Loan, (ii)
the maximum insurable value of the improvements securing such Mortgage Loan
and
(iii) the maximum amount of insurance which is available under the Flood
Disaster Protection Act of 1973, as amended. If at any time during
the term of the Mortgage Loan, the Seller determines in accordance with
applicable law and pursuant to the Xxxxxx Mae Guides that a Mortgaged Property
is located in a special flood hazard area and is not covered by flood insurance
or is covered in an amount less than the amount required by the Flood Disaster
Protection Act of 1973, as amended, the Seller shall notify the related
Mortgagor that the Mortgagor must obtain such flood insurance coverage,
46
and
if
the related Mortgagor fails to obtain the required flood insurance coverage
within forty-five (45) days after such notification, the Seller shall
immediately force place the required flood insurance on the Mortgagor’s
behalf. To the extent the payment of the related premiums will not,
in the Seller’s reasonable determination, constitute non-recoverable Servicing
Advances, the Seller shall also maintain on each REO Property, fire and hazard
insurance with extended coverage in an amount which is at least equal to the
maximum insurable value of the improvements which are a part of such property,
and, to the extent required and available under the Flood Disaster Protection
Act of 1973, as amended, flood insurance in an amount as provided
above. 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 Accepted Servicing Practices, shall be
deposited in the Custodial Account, subject to withdrawal pursuant to Section
4.05. It is understood and agreed that no other additional insurance
need be required by the Seller or maintained on property acquired in respect
of
the Mortgage Loan, other than pursuant to this Agreement, the Xxxxxx Xxx Guides
or such applicable state or federal 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 and its successors and/or assigns and shall provide for at least
thirty (30) days prior written notice of any cancellation, reduction in the
amount 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 are Qualified Insurers.
Section
4.11. Maintenance of Mortgage Impairment
Insurance Policy.
In
the
event that the Seller (or an Affiliate of the Seller) shall obtain and maintain
a blanket policy issued by an issuer acceptable to Xxxxxx Mae or Xxxxxxx Mac
insuring against hazard losses on all of the Mortgage Loans, then, to the extent
such policy provides coverage in an amount equal to the amount required pursuant
to Section 4.10 and otherwise complies with all other requirements of Section
4.10, it shall conclusively be deemed to have satisfied its obligations as
set
forth in Section 4.10, 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 Section 4.10, and there shall have been a
loss
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. Upon request of the
Purchaser, the Seller shall cause to be delivered to the Purchaser a certified
true copy of such policy and shall use commercially reasonable efforts to obtain
a statement from the insurer thereunder that such policy shall in no event
be
terminated or materially modified without thirty (30) days’ prior written notice
to the Purchaser.
Section
4.12. Maintenance of Fidelity Bond and Errors
and Omissions Insurance.
47
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
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 shall be in the form of a
mortgage banker’s blanket bond and shall protect and insure the Seller against
losses, including forgery, theft, embezzlement and fraud of such
persons. The errors and omissions insurance shall protect and insure
the Seller against losses arising out of errors and omissions and negligent
acts
of such persons. Such errors and omissions insurance 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 Section 4.12
requiring the Fidelity Bond or 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 Guides or by Xxxxxxx Mac in the Xxxxxxx Mac
Guides. The Seller shall deliver to the Purchaser a certificate from
the surety and the insurer as to the existence of the Fidelity Bond and errors
and omissions insurance policy and shall obtain 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 (30) days’ prior written notice
to the Purchaser. Upon request by the Purchaser, the Seller shall
provide the Purchaser with an insurance certificate certifying coverage under
this Section 4.12, and will provide an update to such certificate upon request,
or upon renewal or material modification of coverage.
Section
4.13. Title, Management and Disposition of REO
Property.
In
the
event that title to the Mortgaged Property is acquired in foreclosure, by deed
in lieu of foreclosure or other method resulting in full or partial satisfaction
of the related Mortgage, the deed or certificate of sale shall be taken in
the
name of the Purchaser or its designee, or in the event the Purchaser or its
designee 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, at the
expense of the Purchaser, 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 notify the Purchaser in accordance with the Xxxxxx Mae Guides
of
each acquisition of REO Property upon such acquisition, and thereafter assume
the responsibility for marketing such REO Property in accordance with Accepted
Servicing Practices. Thereafter, the Seller shall continue to provide
certain administrative services to the Purchaser relating to such REO Property
as set forth in this Section 4.13.
The
Seller shall, either itself or through an agent selected by the Seller, and
in
accordance with the Xxxxxx Xxx Guides manage, conserve, protect and operate
each
REO Property in the same manner that it manages, conserves, protects and
operates other foreclosed
48
property
for its own account,
and in
the same manner that similar property in the same locality as the REO Property
is managed. 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 annually thereafter or more frequently as required
by
the circumstances. The Seller shall make or cause to be made a
written report of each such inspection. Such reports shall be
retained in the Servicing File.
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 three (3) years
after title has been taken to such REO Property, unless the Seller determines,
and gives an appropriate notice to the Purchaser to such effect, that a longer
period is necessary for the orderly liquidation of such REO
Property. If a longer period than three (3) years is permitted under
the foregoing sentence and is necessary to sell any REO Property, the Seller
shall report monthly to the Purchaser as to the progress being made in selling
such REO Property. 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 shall be entitled to immediate
reimbursement from the Purchaser for any related unreimbursed Servicing
Advances. The disposition of REO Property 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 interests of the Purchaser. The Seller shall update
the Purchaser from time-to-time as to the status of each REO
Property.
Section
4.14. Notification of Maturity
Date.
With
respect to each Mortgage Loan, the Seller shall execute and deliver to the
Mortgagor any and all necessary notices required under applicable law and the
terms of the related Mortgage Note and Mortgage regarding the maturity date
if
required under applicable law.
ARTICLE
V
PAYMENTS
TO THE PURCHASER
Section
5.01. Distributions.
On
each
Remittance Date, the Seller shall distribute by wire transfer to the Purchaser
(i) 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 Section 4.05, plus (ii) all Monthly Advances,
if
any, which the Seller is obligated to distribute pursuant to Section 5.03,
plus
(iii) all payments in respect of Compensating Interest for such Remittance
Date
required to be deposited in the Custodial Account pursuant to Section
4.04(viii), minus (iv) any amounts attributable to Monthly Payments
collected but due on a Due Date or Dates subsequent to the preceding
Determination Date, which amounts shall be remitted on the Remittance Date
next
succeeding the Due Period for such amounts, and any Principal Prepayments
received during the month of such Remittance Date, which amounts shall be
remitted on the next succeeding Remittance Date.
With
respect to any remittance received by the Purchaser after the Business Day
following the Business Day on which such payment was due, the Seller shall
pay
to the
49
Purchaser
interest on any such late payment at an annual rate equal to the Prime Rate,
adjusted as of the date of each change, plus two percentage points, but in
no
event greater than the maximum amount permitted by applicable
law. Such interest shall be deposited in the Custodial Account by the
Seller on the date such late payment is made and shall cover the period
commencing with the day following the second Business Day on which 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 the
distribution payable on the next succeeding Remittance Date. 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.
Section
5.02. Statements to the
Purchaser.
The
Seller shall furnish to the Purchaser an individual loan accounting report,
as
of the last Business Day of each month, in the Seller’s assigned loan number
order to document Mortgage Loan payment activity on an individual Mortgage
Loan
basis. With respect to each month, the corresponding individual loan
accounting report shall be received by the Purchaser no later than the fifth
(5th) Business Day of the following month in a format mutually agreed upon
by
both the Purchaser and the Seller and in hard copy, which report shall contain
the following:
(i) with
respect to each Monthly Payment, the amount of such remittance allocable to
principal (including a separate breakdown of any Principal Prepayment, including
the date of such prepayment, and any Prepayment Penalties or premiums, along
with a detailed report of interest on principal prepayment amounts remitted
in
accordance with Section 4.04);
(ii) with
respect to each Monthly Payment, the amount of such remittance allocable to
interest;
(iii) the
amount of servicing compensation received by the Seller during the prior
collection period;
(iv) the
aggregate Scheduled Principal Balance of the Mortgage Loans;
(v) the
aggregate of any expenses reimbursed to the Seller during the prior distribution
period pursuant to Section 4.05;
(vi) the
number and aggregate outstanding principal balances of Mortgage Loans (a)
delinquent (1) 30 to 59 days, (2) 60 to 89 days, and (3) 90 days or more; (b)
as
to which foreclosure has commenced; and (c) as to which REO Property has been
acquired; and
(vii) the
amount of any Monthly Advances.
The
Seller shall also provide a monthly servicing report, sorted in the Purchaser’s
assigned loan number order, in the form of reports S-50Y and P-4DL, attached
hereto as Exhibit G and Exhibit H, respectively (or in such
other forms as the Purchaser and the Seller may agree), with each such
report.
50
The
Seller shall prepare and file any and all information statements or other
filings required to be delivered to any governmental taxing authority or to
the
Purchaser pursuant to any applicable law with respect to the Mortgage Loans
and
the transactions contemplated hereby. In addition, the 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 the
Purchaser may reasonably request from time to time.
In
addition, not more than sixty (60) days after the end of each calendar year,
the
Seller shall furnish to each Person who was a Purchaser at any time during
such
calendar year an annual statement in accordance with the requirements of
applicable federal income tax law as to the aggregate of remittances for the
applicable portion of such year.
Section
5.03. Monthly Advances by the
Seller.
Not
later
than the close of business on the Business Day preceding each Remittance Date,
the Seller shall deposit in the Custodial Account an amount equal to all Monthly
Payments, whether or not deferred pursuant to Section 4.01, which were due
on a
Mortgage Loan on the immediately preceding Due Date and delinquent at the close
of business on the related Determination Date.
The
Seller’s obligation to make such Monthly Advances as to any Mortgage Loan will
continue through the earlier of: (i) the date of the termination or resignation,
as applicable, of the Seller pursuant to Section 7.04, 8.01 or 9.01 or (ii)
the
date of final disposition and liquidation of the related Mortgage Loan or any
Mortgaged Property acquired through foreclosure or a conveyance in lieu of
foreclosure, unless the Seller reasonably believes such advance to be
non-recoverable from proceeds of the related Mortgage Loan. In such
event, the Seller shall deliver to the Purchaser an Officer’s Certificate of the
Seller to the effect that an officer of the Seller has reviewed the related
Servicing File and has made the reasonable determination that any additional
advances are non-recoverable from proceeds of the related Mortgage
Loan.
Section
5.04. 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. The Seller shall also provide reports on the status of REO
Property containing such information as the Purchaser may reasonably
require.
ARTICLE
VI
GENERAL
SERVICING PROCEDURES
Section
6.01. 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
51
Mortgage
Loan under any “due-on-sale” clause to the extent permitted by law;
provided, however, that the Seller shall not exercise any such rights
if prohibited by law or the terms of the Mortgage Note from doing so or if
the
exercise of such rights would impair or threaten to impair any recovery under
the related Primary Mortgage Insurance Policy, if any. If the Seller
reasonably believes it is unable under applicable law to enforce such
“due-on-sale” clause, the Seller will 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. If the Seller is prohibited under applicable law from (a)
entering into an assumption agreement with the Person to whom the Mortgaged
Property has been conveyed or is proposed to be conveyed or (b) requiring the
original Mortgagor to remain liable under the Mortgage Note, the Seller, with
the prior consent of the primary mortgage insurer, 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 the Xxxxxx Mae
Guides. With respect to an assumption or substitution of liability,
the Mortgage Interest Rate borne by the related Mortgage Note and the amount
of
the Monthly Payment may not be changed. If the credit of the proposed
transferee does not meet such underwriting criteria, the Seller diligently
shall, to the extent permitted by the Mortgage or the Mortgage Note and by
applicable law, accelerate the maturity of the Mortgage Loan. 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. All fees
collected by the Seller for entering into an assumption or substitution of
liability agreement shall belong to the Seller as additional servicing
compensation.
Notwithstanding
the foregoing paragraphs of this Section 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
Section 6.01, 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.
Section
6.02. 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, 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 Section 4.04
52
have
been
or will be so deposited, of a Servicing Officer and shall request delivery
to it
of the portion of the Mortgage File held by the Purchaser. The Purchaser shall
no later than five (5) Business Days after receipt of such certification and
request, release or cause to be released to the Seller, the related Mortgage
Loan Documents and, upon its receipt of such documents, the Seller shall
promptly prepare and deliver to the Purchaser the requisite satisfaction or
release. No later than three (3) Business Days following its receipt
of such satisfaction or release, the Purchaser shall deliver, or cause to be
delivered, to the Seller the release or satisfaction properly executed by the
owner of record of the applicable Mortgage or its duly appointed attorney in
fact. If such Mortgage Loan is a MERS Mortgage Loan, the Seller is authorized
to
cause the removal from the registration on the MERS System of such Mortgage
and
to execute and deliver, on behalf of the Purchaser, any and all instruments
of
satisfaction or cancellation or of partial or full release.
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 Loan
Documents, the Seller, upon written demand, shall remit within two (2) Business
Days to the Purchaser the then outstanding principal balance of the related
Mortgage Loan by deposit thereof in the Custodial Account.
From
time
to time and as appropriate for the servicing or foreclosure of the Mortgage
Loans, including for the purpose of collection under any Primary Mortgage
Insurance 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 portion of the Mortgage File held by the Purchaser to the
Seller. Such servicing receipt shall obligate the Seller to return
such Mortgage Loan 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 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 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.
Section
6.03. Servicing Compensation.
As
compensation for its services hereunder, the Seller shall be entitled to
the Servicing Fee. Additional servicing compensation in
the form of assumption fees, as provided in Section 6.01, late payment charges,
interest and investment earning on funds on deposit in the Custodial Account
and
Escrow Account (to the extent provided for herein) and other ancillary income
shall be retained by the Seller to the extent not required to be deposited
in
the Custodial Account. 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 herein.
Section
6.04. Annual Statement as to
Compliance.
53
On
or
prior to March 15th of each year for each year in which the Purchaser or an
Affiliate of the Purchaser is required to file an annual report on Form 10-K
in
connection with any Securitization Transfer with the United States Securities
and Exchange Commission (the “SEC”), and upon request of the Purchaser
for any other year, the Seller will deliver to the Purchaser an Officers’
Certificate stating, as to each signatory thereof, that (i) a review of the
activities of the Seller during the preceding calendar 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 officers and the nature and status
thereof. The first Officer’s Certificate delivered by the Seller to
the Purchaser pursuant to this Section shall be delivered on or before March
15,
2005, or such other date as may be required pursuant to the first sentence
of
this Section 6.04. Copies of such statement shall be provided by the
Seller to the Purchaser upon request. The obligations of the Seller
under this Section 6.04 apply to the Seller for any year in which the Seller
during the prior calendar year (or any portion thereof) serviced a Mortgage
Loan
pursuant to this Agreement, whether or not the Seller is acting as the servicer
at the time such statement is required to be delivered.
Section
6.05. Annual Independent Certified Public
Accountants’ Servicing Report.
On
or
prior to March 15th of each year for each year in which the Purchaser or an
Affiliate of the Purchaser is required to file an annual report on Form 10-K
in
connection with any Securitization Transfer with the SEC, and upon request
of
the Purchaser for any other year, the Seller at its expense shall cause a firm
of independent public accountants which is a member of the American Institute
of
Certified Public Accountants to furnish a statement to the Purchaser to the
effect that such firm has examined certain documents and records relating to
the
Seller’s servicing of residential mortgage loans, and that, on the basis of such
an examination, conducted substantially in compliance with the Uniform Single
Attestation Program for Mortgage Bankers, such firm is of the opinion that
the
Seller’s servicing has been conducted in compliance with such programs, except
for (i) such exceptions as such firm shall believe to be immaterial, and (ii)
such other exceptions as shall be set forth in such statement. The
first statement delivered by the Seller to the Purchaser pursuant to this
Section shall be delivered on or before March 15, 2005, or such other date
as
may be required pursuant to the first sentence of this Section
6.05. Copies of such statement shall be provided by the Seller to the
Purchaser. The obligations of the Seller under this Section 6.05
apply to the Seller for any year in which the Seller during the prior calendar
year (or any portion thereof) serviced a Mortgage Loan pursuant to this
Agreement, whether or not the Seller is acting as the servicer at the time
such
statement is required to be delivered
Section
6.06. Purchaser’s Right to Examine Seller
Records.
At
its
expense, the Purchaser shall have the right to examine and audit upon reasonable
notice to the Seller, during business hours or at such other times as might
be
reasonable under applicable circumstances, any and all of the books, records,
documentation or other information of the Seller, or held by another for the
Seller or on its behalf or otherwise,
54
which
relates to the performance or observance by the Seller of the terms, covenants
or conditions of this Agreement.
The
Seller shall provide to the Purchaser and any supervisory agents or examiners
representing a state or federal governmental agency having jurisdiction over
the
Purchaser, including but not limited to, OCC, OTS, FDIC and other similar
entities, access to any documentation regarding the Mortgage Loans in the
possession of the Seller which may be required by any applicable
regulations. Such access shall be afforded without charge, upon
reasonable request, during normal business hours and at the offices of the
Seller, and in accordance with the federal government, OCC, FDIC, OTS, or any
other similar regulations; provided, however, that in connection with providing
such access, the Seller shall not be required to incur any out-of-pocket costs
unless provisions have been made for the reimbursement thereof.
Section
6.07. Seller Shall Provide Information as
Reasonably Required.
The
Seller shall furnish to the Purchaser during the term of this Agreement such
periodic, special or other reports, information or documentation as the
Purchaser may reasonably request, as shall be necessary, reasonable or
appropriate in respect to the Mortgage Loans and the performance of the Seller
under this Agreement, including any reports, information or documentation
reasonably required to comply with any regulations regarding any supervisory
agents or examiners of the Purchaser; provided, that, the Seller shall not
be
liable for any out-of-pocket costs with respect to the provision of such
reports, information or documentation. All such reports or
information shall be provided by and in accordance with such applicable
instructions and directions as the Purchaser may reasonably request in relation
to this Agreement or the performance of the Seller under this
Agreement. The Seller agrees to execute and deliver all such
instruments and take all such action as the Purchaser, from time to time, may
reasonably request in order to effectuate the purpose and to carry out the
terms
of this Agreement.
The
Seller, upon reasonable advance notice, shall make reasonably available to
the
Purchaser or any prospective purchaser a knowledgeable financial or accounting
officer for the purpose of answering questions and to permit any prospective
purchaser to inspect the Seller’s servicing facilities for the purpose of
satisfying such prospective purchaser that the Seller has the ability to service
the Mortgage Loans as provided in this Agreement.
The
Seller shall maintain with respect to each Mortgage Loan and shall make
available for inspection by the Purchaser or its designee the related Servicing
File during the time the Purchaser retains ownership of a Mortgage Loan and
thereafter in accordance with applicable laws and regulations.
ARTICLE
VII
THE
SELLER
Section
7.01. Indemnification; Third Party
Claims.
The
Seller agrees to indemnify and hold the Purchaser and its present and former
directors, officers, employees and agents harmless from any and all claims,
losses, damages, penalties, fines, forfeitures, legal fees and related costs,
judgments, and any other costs, fees and
55
expenses
that any of such parties may sustain in any way related to the failure of the
Seller to observe and perform its duties, obligations, covenants, and agreements
and to service the Mortgage Loans in compliance with the terms of this Agreement
or as a result of the breach of a representation or warranty set forth in
Sections 3.01 or 3.02 of this Agreement. The Seller hereunder shall
immediately notify the Purchaser if a claim is made by a third party with
respect to this Agreement or a Mortgage Loan, assume (with the consent of the
Purchaser) the defense of any such claim and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy
any
judgment or decree which may be entered against it or the Purchaser in respect
of such claim. The Seller shall follow any written instructions
received from the Purchaser in connection with such claim. The
Purchaser shall promptly reimburse the Seller for all amounts advanced by it
pursuant to the two preceding sentences except when the claim relates to the
failure of the Seller to service and administer the Mortgage Loans in compliance
with the terms of this Agreement, the failure of the Seller to perform its
duties and obligations pursuant to this Agreement, the breach of representation
or warranty set forth in Sections 3.01 or 3.02, or the gross negligence, bad
faith or willful misconduct of the Seller. The provisions of this
Section 7.01 shall survive termination of this Agreement and transfer of the
related servicing rights.
Section
7.02. Merger or Consolidation of the
Seller.
The
Seller shall keep in full effect its existence, rights and franchises as a
corporation under the laws of the state of its incorporation except as permitted
herein, and shall obtain and preserve its qualification to do business as a
foreign corporation in each jurisdiction in which such qualification is or
shall
be necessary to protect the validity and enforceability of this Agreement,
or
any of the Mortgage Loans and to perform its duties under this
Agreement.
Any
Person into which the Seller may be merged or consolidated (including by means
of sale or disposal of all or substantially all of the Seller’s assets), 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, unless otherwise consented to by the Purchaser, which consent shall
not
be unreasonably withheld, and shall be qualified and in good standing to service
mortgage loans on behalf of Xxxxxx Xxx or Xxxxxxx Mac.
Section
7.03. Limitation on Liability of the Seller and
Others.
The
duties and obligations of the Seller shall be determined solely by the express
provisions of this Agreement, the Seller shall not be liable except for the
performance of such duties and obligations as are specifically set forth in
this
Agreement and no implied covenants or obligations shall be read into this
Agreement against the Seller. 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 pursuant to this Agreement, or for errors in judgment made in
good
faith; provided, however, that this provision
56
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 compliance
with any standard of care set forth in this Agreement, or any liability which
would otherwise be imposed by reason of negligence, bad faith or willful
misconduct, or 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 the Purchaser 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 duties
to
service the Mortgage Loans in accordance with this Agreement and which in its
reasonable opinion may involve it in any expenses or liability.
Section
7.04. Seller Not to Resign.
The
Seller shall not 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 duties hereunder are no longer permissible under
applicable law and such incapacity cannot be cured by the Seller. Any
such determination permitting the resignation of the Seller shall be evidenced
by an Opinion of Counsel to such effect delivered to the Purchaser which Opinion
of Counsel shall be in form and substance acceptable to the
Purchaser. No such resignation shall become effective until a
successor shall have assumed the Seller’s responsibilities and obligations
hereunder in the manner provided in Section 11.01.
Section
7.05. No Transfer of Servicing.
With
respect to the retention of the Seller to service the Mortgage Loans hereunder,
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 7.05, the Seller shall not either assign this
Agreement or the servicing hereunder or delegate its rights or duties hereunder
or any portion thereof without the prior written approval of the Purchaser,
which consent may be withheld in the Purchaser’s discretion exercised in good
faith. Notwithstanding the foregoing, the Seller may, without the
consent of the Purchaser, retain reasonable and necessary third party
contractors to perform certain servicing and loan administration functions,
including and limited to, hazard insurance administration, tax payment and
administration, flood certification and administration and foreclosure
activities; provided, that such contractors shall perform such servicing and
loan administrative functions in a manner consistent with this Agreement;
provided, further, that the retention of such contractors by Seller shall not
limit the obligation of the Seller to service the Mortgage Loans pursuant to
the
terms and conditions of this Agreement or release it from any of its obligations
hereunder.
ARTICLE
VIII
DEFAULT
Section
8.01. Events of Default.
57
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 required to be
made
under the terms of this Agreement which continues unremedied for a period of
two
(2) Business Days after the date upon which written notice of such failure,
requiring the same to be remedied, shall have been given to the Seller by the
Purchaser; or
(ii) 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, or which failure continues unremedied for a period of thirty (30)
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 the Purchaser;
or
(iii) a
decree or order of a court or agency or supervisory authority having
jurisdiction for the appointment of a conservator or receiver or liquidator
in
any insolvency, bankruptcy, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of
its
affairs, shall have been entered against the Seller and such decree or order
shall have remained in force undischarged or unstayed for a period of sixty
(60)
days; or
(iv) 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
(v) 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
(vi) the
Seller ceases to be approved by Xxxxxx Mae or Xxxxxxx Mac as a mortgage loan
seller and servicer for more than thirty (30) days; or
(vii) the
Seller attempts to assign its right to servicing compensation hereunder or
the
Seller attempts, without the consent of the Purchaser, to assign this Agreement
or the servicing responsibilities hereunder or to delegate its duties hereunder
or any portion thereof in a manner not permitted under this Agreement;
or
(viii) the
Seller ceases to be (a) licensed to service first lien residential mortgage
loans in each jurisdiction in which a Mortgaged Property is located and such
licensing is required, and (b) qualified to transact business in any
jurisdiction where it is currently so qualified, but only to the extent such
non-qualification materially and adversely affects the Seller’s ability to
perform its obligations hereunder;
58
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 under Sections 3.03 and 7.01 and at
law
or equity or to damages, including injunctive relief and specific performance,
terminate all the rights and obligations of the Seller under this Agreement
and
in and to the Mortgage Loans and the proceeds thereof without compensating
the
Seller for the same. On or after the receipt by the Seller of such
written notice of termination, all authority and power of the Seller under
this
Agreement, whether with respect to the Mortgage Loans or otherwise, shall pass
to and be vested in the successor appointed pursuant to Section
12.01. Upon written request from the Purchaser, the Seller shall
prepare, execute and deliver, any and all documents and other instruments,
place
in such successor’s possession all Servicing 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, including, without limitation, the transfer to such successor
for administration by it of all cash amounts which shall at the time be credited
by the Seller to the Custodial Account or Escrow Account or thereafter received
with respect to the Mortgage Loans or any REO Property.
If
any of
the Mortgage Loans are MERS Mortgage Loans, in connection with the termination
or resignation (as described in Section 8.04) of the Seller hereunder, either
(i) the successor servicer 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 servicer 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 servicer or (y) in causing MERS to designate on the MERS® System the
successor servicer as the servicer of such Mortgage Loan.
Section
8.02. Waiver of Defaults.
The
Purchaser may waive only by written notice 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 in writing.
ARTICLE
IX
TERMINATION
Section
9.01. Termination.
59
The
respective obligations and responsibilities of the Seller, as servicer, shall
terminate upon (a) the distribution to the Purchaser of the final payment
or liquidation with respect to the last Mortgage Loan (or advances of same
by
the Seller); (b) the disposition of all property acquired upon
foreclosure or deed in lieu of foreclosure with respect to the last Mortgage
Loan and the remittance of all funds due hereunder or (c) by mutual consent
of
the Seller and the Purchaser in writing. 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 Purchaser’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 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.
Notwithstanding
and in addition to the foregoing, in the event that a Mortgage Loan (i) becomes
delinquent for a period of ninety (90) days or more (a “Delinquent Mortgage
Loan”) or (ii) becomes an REO Property, the Purchaser may, at its option,
terminate this Agreement with respect to such Delinquent Mortgage Loan or REO
Property upon twenty (20) days’ written notice to the Seller; provided that upon
termination of this Agreement with respect to such Delinquent Mortgage Loan
or
REO Property the Purchaser shall reimburse the Seller for all outstanding
Servicing Advances or Servicing Fees related to such Delinquent Mortgage
Loan.
ARTICLE
X
RECONSTITUTION
OF MORTGAGE LOANS
Section
10.01. Reconstitution of Mortgage Loans.
The
Seller and the Purchaser agree that with respect to some or all of the Mortgage
Loans, after the related Closing Date, on one or more dates (each, a
“Reconstitution Date”) at the Purchaser’s sole option, the Purchaser may
effect a sale (each, a “Reconstitution”) of some or all of the Mortgage
Loans then subject to this Agreement, without recourse, to:
(i) Xxxxxx
Mae under its Cash Purchase Program or MBS Program (Special Servicing Option)
(each, a “Xxxxxx Xxx Transfer”); or
(ii) Xxxxxxx
Mac (the “Xxxxxxx Mac Transfer”); or
(iii) one
or more third party purchasers in one or more Whole Loan Transfers;
or
(iv) one
or more trusts or other entities to be formed as part of one or more
Securitization Transfers.
The
Purchaser shall use its best efforts to provide notice to the Seller of each
such Reconstitution no later than fifteen (15) calendar days prior to the
related Reconstitution Date,
60
but,
in
any event, shall provide such notice to the Seller no later than ten (10)
calendar days prior to the related Reconstitution Date.
The
Seller agrees to execute in connection with any Agency Transfer, any and all
reasonably acceptable pool purchase contracts, and/or agreements among the
Purchaser, the Seller, Xxxxxx Mae or Xxxxxxx Mac (as the case may be) and any
servicer in connection with a Whole Loan Transfer, a seller’s warranties and
servicing agreement or a participation and servicing agreement in form and
substance reasonably acceptable to the parties, and in connection with a
Securitization Transfer, a pooling and servicing agreement in form and substance
reasonably acceptable to the parties or an Assignment and Recognition Agreement
substantially in the form attached hereto as Exhibit D (collectively, the
agreements referred to herein are designated, the “Reconstitution
Agreements”), together with an opinion of counsel with respect to such
Reconstitution Agreements.
With
respect to each Whole Loan Transfer and each Securitization Transfer entered
into by the Purchaser, the Seller agrees (1) to cooperate fully with the
Purchaser and any prospective purchaser with respect to all reasonable requests
and due diligence procedures; (2) to execute, deliver and perform all
Reconstitution Agreements required by the Purchaser; and (3) to restate the
representations and warranties set forth in Section 3.01 of this Agreement
as of
the related Reconstitution Date, to restate the representations and warranties
set forth in Section 3.02 of this Agreement as of the related Closing Date
and
to represent and warrant that the Seller has serviced the Mortgage Loans in
accordance with this Agreement, in each case, as of the settlement or closing
date in connection with such Reconstitution. The Seller shall provide
to such servicer or issuer, as the case may be, and any other participants
or
purchasers in such Reconstitution: (i) any and all information
and appropriate verification of information which may be reasonably available
to
the Seller or its Affiliates, whether through letters of its auditors and
counsel or otherwise, as the Purchaser or any such other participant shall
reasonably request; (ii) such additional opinions of counsel, letters from
auditors, and certificates of public officials or officers of the Seller as
are
reasonably believed necessary by the Purchaser or any such other participant;
and (iii) to execute, deliver and satisfy all conditions set forth in any
indemnity agreement required by the Purchaser or any such participant,
including, without limitation, an Indemnification and Contribution Agreement
in
substantially the form attached hereto as Exhibit I. Moreover,
the Seller agrees to cooperate with all reasonable requests made by the
Purchaser to effect such Reconstitution. The Seller shall indemnify
the Purchaser, each Affiliate of the Purchaser participating in the
Reconstitution and each Person who controls the Purchaser or such Affiliate
and
their respective present and former directors, officers, employees and agents,
and hold each of them harmless from and against any losses, damages, penalties,
fines, forfeitures, legal fees and expenses and related costs, judgments, and
any other costs, fees and expenses that each of them may sustain in any way
related to any information provided by or on behalf of the Seller regarding
the
Seller or any affiliated servicer, the Seller’s or any affiliated servicer’s
servicing practices or performance or the Underwriting Standards set forth
in
any offering document prepared in connection with any Reconstitution (the
“Seller Information”). For purposes of the previous sentence,
“Purchaser” shall mean the Person then acting as the Purchaser under this
Agreement and any and all Persons who previously were “Purchasers” under this
Agreement. In connection with any Reconstitution, the Purchaser shall
execute an Indemnification and Contribution Agreement substantially in the
form
of Exhibit I attached hereto, which in any case, shall provide that the
Purchaser shall indemnify the Seller and each
61
Person
who controls the Seller and its directors, officers, employees and agents,
and
hold each of them harmless from and against any losses, damages, penalties,
fines, forfeitures, legal fees and expenses and related costs, judgments, and
any other costs, fees and expenses that each of them may sustain in any way
related to any information, other than (i) the Seller Information or (ii) any
information regarding the Mortgage Loans set forth in any offering document
prepared in connection with any Reconstitution that is derived from loan-level
information provided by the Seller to the Purchaser, the related depositor
or
any of their Affiliates, set forth in any offering document prepared in
connection with any Reconstitution.
With
respect to any Mortgage Loans sold in a Securitization Transfer where the Seller
is the servicer, the Seller agrees that on or before March 15th of each year
beginning March 15, 2005, the Seller shall deliver to the depositor, the master
servicer (if any) and the trustee for the securitization trust in the
Securitization Transfer, and their officers and directors, a certification
in
the form attached as Exhibit J hereto, executed by the senior officer in
charge of servicing at the Seller for use in connection with any Form 10-K
to be
filed with the SEC with respect to the securitization trust. The
Seller shall indemnify and hold harmless the depositor, the master servicer
(if
any) and the trustee, and their respective officers and directors, from and
against any losses, damages, penalties, fines, forfeitures, legal fees and
expenses and related costs, judgments and other costs and expenses arising
out
of or based upon any breach of the Seller’s obligations under this paragraph or
any material misstatement or omission, negligence, bad faith or willful
misconduct of the Seller in connection therewith. If the
indemnification provided for in the preceding sentence is unavailable or
insufficient to hold harmless any indemnified party, then the Seller agrees
that
it shall contribute to the amount paid or payable by such indemnified party
as a
result of the losses, claims, damages or liabilities of such indemnified party
in such proportion as is appropriate to reflect the relative fault of such
indemnified party, on the one hand, and the Seller, on the other, in connection
with a breach of the Seller’s obligations under this paragraph or any material
misstatement or omission, negligence, bad faith or willful misconduct of the
Seller in connection therewith.
The
Purchaser shall reimburse the Seller for any and all out-of-pocket expenses,
costs and fees, including reasonable attorney’s fees, incurred by the Seller in
response to requests for information or assistance under this Section, other
than such out-of-pocket expenses, costs and fees, including reasonable
attorney’s fees, incurred by the Seller in connection with fulfilling its
obligations hereunder with respect to servicing and administering the related
Mortgage Loans. All Mortgage Loans not sold or transferred pursuant
to a Reconstitution shall remain subject to this Agreement and shall continue
to
be serviced in accordance with the terms of this Agreement, and with respect
thereto this Agreement shall remain in full force and effect.
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
Section
11.01. Successor to the Seller.
Prior
to
termination of Seller’s responsibilities and duties under this Agreement
pursuant to Section 7.04, 8.01 or 9.01, 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 having the characteristics
set
forth in Section 7.02 hereof and which shall succeed to
62
all
rights and assume all of the responsibilities, duties and liabilities of the
Seller 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 the Purchaser and such
successor shall agree. In the event that the Seller’s duties,
responsibilities and liabilities 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 its successor. The resignation or removal of
the Seller pursuant to the aforementioned Sections shall not become effective
until a successor shall be appointed pursuant to this Section and shall in
no
event relieve the Seller of the representations and warranties made pursuant
to
Sections 3.01 and 3.02, the remedies available under Section 3.03 or the
indemnification obligations of the Seller pursuant to Section 7.01.
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. Any
termination or resignation of the Seller or this Agreement pursuant to Section
7.04, 7.05, 8.01 or 9.01 shall not affect any claims that the Purchaser may
have
against the Seller arising prior to any such termination or
resignation.
The
Seller shall promptly 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. Upon
appointment of successor servicer to the Seller, the Seller shall be reimbursed
for unrecovered Servicing Advances, Monthly Advances and unpaid Servicing Fees
which would otherwise have been recovered by the Seller pursuant to this
Agreement but for the appointment such successor servicer.
Upon
a
successor’s acceptance of appointment as such, the Seller shall notify by mail
the Purchaser of such appointment.
Section
11.02. Amendment.
This
Agreement may be amended or supplemented from time to time by written agreement
executed by the Purchaser and the Seller.
Section
11.03. Recordation of Agreement.
To
the
extent permitted by applicable law, this Agreement is subject to recordation
in
all appropriate public offices for real property records in all the counties
or
other comparable jurisdictions in which any of all the Mortgaged Properties
subject to the Mortgages
63
are
situated, and in any other appropriate public recording office or elsewhere,
such recordation to be effected by the Seller at the Seller’s expense on
direction of the Purchaser.
Section
11.04. Governing Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York, without regard to its conflict of law provisions, except
to
the extent preempted by Federal law. The obligations, rights and
remedies of the parties hereunder shall be determined in accordance with such
laws.
Section
11.05. Notices.
Any
demands, notices or other communications permitted or required hereunder shall
be in writing and shall be deemed conclusively to have been given if personally
delivered at or mailed by registered mail, postage prepaid, and return receipt
requested or certified mail, return receipt requested, or transmitted by telex,
telegraph or telecopier and confirmed by a similar mailed writing, as
follows:
1. if
to the Seller:
Wachovia
Mortgage Corporation
000
Xxxxx
Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000
Attention: Xxxxxx
Xxxxxx
Facsimile:
(000) 000-0000
with
a
copy to:
Wachovia
Mortgage Corporation
0000
Xxxxxxxxx Xxxxxx Xxxxx
Xxxxxxx,
Xxxxx Xxxxxxxx 00000
Attention: Xxx
Xxxxxx
Facsimile:
(000) 000-0000
2. if
to the Purchaser:
Xxxxxx
Xxxxxxx Mortgage Capital Inc.
1221
Avenue of the Xxxxxxxx
00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention: Xxxxx
Xxxxxxxxxx - Whole Loan Operations Manager
Fax: 000-000-0000
Email:
xxxxx.xxxxxxxxxx@xxxxxxxxxxxxx.xxx
with
copies to:
Xxxx
Xxxxxxxx
Xxxxxx
Xxxxxxx – Servicing Oversight
64
0000
X-Xxx Xxx
Xxxxx
000
Xxxx
Xxxxx, Xxxxxxx 00000
Fax:
000-000-0000
Email:
xxxx.xxxxxxxx@xxxxxxxxxxxxx.xxx
Xxxxx
Xxxxxx
Xxxxxx
Xxxxxxx - RFPG
0000
Xxxxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Fax:
000-000-0000
Email:
xxxxx.xxxxxx@xxxxxxxxxxxxx.xxx
or
such
other address as may hereafter be furnished to the other party by like
notice. Any such demand, notice or communication hereunder shall be
deemed to have been received on the date delivered to or received at the
premises of the addressee (as evidenced, in the case of registered or certified
mail, by the date noted on the return receipt).
Section
11.06. Severability of Provisions.
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
11.07. Exhibits.
The
exhibits to this Agreement are hereby incorporated and made a part hereof and
are an integral part of this Agreement.
Section
11.08. General Interpretive Principles.
For
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires:
65
(i) the
terms defined in this Agreement have the meanings assigned to them in this
Agreement and include the plural as well as the singular, and the use of any
gender herein shall be deemed to include the other gender;
(ii) accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with GAAP;
(iii) references
herein to “Articles,” “Sections,” Subsections,” “Paragraphs,” and other
subdivisions without reference to a document are to designated Articles,
Sections, Subsections, Paragraphs and other subdivisions of this
Agreement;
(iv) a
reference to a Subsection without further reference to a Section is a reference
to such Subsection as contained in the same Section in which the reference
appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(v) the
words “herein,” “hereof,” “hereunder,” and other words of similar import refer
to this Agreement as a whole and not to any particular provision;
(vi) the
term “include” or “including” shall mean without limitation by reason of
enumeration; and
(vii) headings
of the Articles and Sections in this Agreement are for reference purposes only
and shall not be deemed to have any substantive effect.
Section
11.09. Reproduction of Documents.
This
Agreement and all documents relating thereto, including, without limitation,
(i)
consents, waivers and modifications which may hereafter be executed, (ii)
documents received by any party at the closing, and (iii) 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
11.10. Confidentiality of Information.
Each
party recognizes that, in connection with this Agreement, it may become privy
to
non-public information regarding the financial condition, operations and
prospects of the other party. Each of the Purchaser and the Seller
shall employ proper procedures and standards designed to maintain the
confidential nature of such information and the terms of this Agreement, except
to the extent: (a) disclosure of such information and terms is
reasonably believed by such party to be required in connection with regulatory
requirements or other legal
66
requirements
relating to its affairs; (b) disclosed to any one or more of such party’s
employees, officers, directors, agents, attorneys or accountants who would
have
access to the contents of this Agreement and such data and information in the
normal course of the performance of such Person’s duties for such party, to the
extent such party has procedures in effect to inform such Person of the
confidential nature thereof; (c) disclosed in a prospectus, prospectus
supplement or private placement memorandum relating to a securitization of
the
Mortgage Loans by the Purchaser (or an Affiliate assignee thereof) or to any
Person in connection with the resale or proposed resale of all or a portion
of
the Mortgage Loans by such party in accordance with the terms of this Agreement;
and (d) that is reasonably believed by such party to be necessary for the
enforcement of such party’s rights under this Agreement.
Section
11.11. Recordation of Assignments of
Mortgage.
To
the
extent permitted by applicable law, each of the Assignments of Mortgage is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any
or
all of the Mortgaged Properties are situated, and in any other appropriate
public recording office or elsewhere, such recordation to be effected (i) with
respect to MERS Mortgage Loans, at the Purchaser’s expense and (ii) with respect
to Mortgage Loans that are not MERS Mortgage Loans, at the Seller’s expense, in
each case, in the event recordation is either necessary under applicable law
or
requested by the Purchaser at its sole option.
Section
11.12. Assignment by Purchaser.
The
Purchaser shall have the right, upon notice to the Seller, to assign, in whole
or in part, its interest under this Agreement with respect to some or all of
the
Mortgage Loans, and designate any person to exercise any rights of the Purchaser
hereunder, by executing an Assignment, Assumption and Recognition Agreement
substantially in the form of Exhibit D hereto, and the assignee or
designee shall accede to the rights and obligations hereunder of the Purchaser
with respect to such Mortgage Loans; provided, however, that, in no event shall
there be any more than three (3) “Purchasers” with respect to any Mortgage Loan
Package. In no event shall the Purchaser sell a partial interest in
any Mortgage Loan without the prior written consent of the Seller, which consent
may be granted or withheld in the Seller’s sole discretion. All
references to the Purchaser in this Agreement shall be deemed to include its
assignee or designee.
Section
11.13. No Partnership.
Nothing
herein contained shall be deemed or construed to create a co-partnership or
joint venture between the parties hereto and the services of the Seller shall
be
rendered as an independent contractor and not as agent for
Purchaser.
Section
11.14. Execution; Successors and Assigns.
This
Agreement may be executed in one or more counterparts and by the different
parties hereto on separate counterparts, each of which, when so executed, shall
be deemed to be an original; such counterparts, together, shall constitute
one
and the same agreement. Subject to
67
Section
7.02, this Agreement shall inure to the benefit of and be binding upon the
Seller and the Purchaser and their respective successors and
assigns.
Section
11.15. Entire Agreement.
Each
of
the parties to this Agreement acknowledges that no representations, agreements
or promises were made to any of the other parties to this Agreement or any
of
its employees other than those representations, agreements or promises
specifically contained herein. This Agreement and the related
Purchase Price and Terms Letter set forth the entire understanding between
the
parties hereto and shall be binding upon all successors of all of the
parties. In the event of any inconsistency between a Purchase Price
and Terms Letter and this Agreement, this Agreement shall control.
Section
11.16. No Solicitation.
From
and
after the related Closing Date, except as provided below, the Seller agrees
that
it will not take any action or permit or cause any action to be taken by any
of
its agents or Affiliates, or by any independent contractors on the Seller’s
behalf, in any manner to solicit the borrower or obligor under any Mortgage
Loan
to refinance the Mortgage Loan, in whole or in part, without the prior written
consent of the Purchaser. It is understood and agreed that all rights
and benefits relating to the solicitation of any Mortgagors to refinance any
Mortgage Loans and the attendant rights, title and interest in and to the list
of such Mortgagors and data relating to their Mortgages (including insurance
renewal dates) shall be transferred to the Purchaser pursuant hereto on the
related Closing Date and the Seller shall take no action to undermine these
rights and benefits. Notwithstanding the foregoing, it is understood
and agreed that the following promotions or solicitations undertaken by the
Seller or any Affiliate of the Seller shall not be prohibited under this Section
11.16: (i) promotions or solicitations that are directed to the
general public at large or segments thereof, provided that no segment shall
consist primarily of the borrowers or obligors under the Mortgage Loans,
including, without limitation, mass mailing based on commercially acquired
mailing lists, newspaper, radio and television advertisements; (ii) responding
to Mortgagor requests for pay-off information and regarding other bank or
financial products or services; and (iii) promotions or solicitations to any
Mortgagor for any other bank or financial products or services, unless such
promotions or solicitations are for a prepayment of a Mortgage
Loan.
Section
11.17. Costs.
The
Purchaser shall pay any commissions due its salesmen, the expenses of its
accountants and attorneys and the expenses and fees of any broker retained
by
the Purchaser with respect to the transactions covered by this
Agreement. To the extent not otherwise provided herein, all other
costs and expenses incurred in connection with the transfer and delivery of
the
Mortgage Loans, including, without limitation, fees for recording
intervening assignments of mortgage and Assignments of Mortgage, the cost of
obtaining tax service contracts and the legal fees and expenses of its attorneys
shall be paid by the Seller. The Seller shall be responsible for
causing the recordation of all Assignments of Mortgage and all intervening
assignments of mortgage, as applicable.
68
Section
11.18. Protection of Mortgagor Personal
Information.
Each
of
the Purchaser and the Seller agree that it (i) shall comply with any applicable
laws and regulations regarding the privacy and security of Mortgagor Personal
Information, (ii) shall not use Mortgagor Personal Information in any manner
inconsistent with any applicable laws and regulations regarding the privacy
and
security of Mortgagor Personal Information, (iii) shall not disclose Mortgagor
Personal Information to third parties except at the specific written direction
of the other; provided, however, that the Purchaser and the Seller may
disclose Mortgagor Personal Information to third parties in connection with
secondary market transactions to the extent not prohibited by applicable law
or
to the extent required by a valid and effective subpoena issued by a court
of
competent jurisdiction or other governmental body, (iv) shall maintain adequate
physical, technical and administrative safeguards to protect Mortgagor Personal
Information from unauthorized access and (v) shall immediately notify the
other of any actual or suspected breach of the confidentiality of Mortgagor
Personal Information.
[SIGNATURE
PAGE TO FOLLOW]
69
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
day and year first above written.
|
XXXXXX
XXXXXXX MORTGAGE CAPITAL INC.,
as
Purchaser
By:
______________________________
Name:
____________________________
Title:
_____________________________
WACHOVIA
MORTGAGE CORPORATION,
as
Seller
By:
_______________________________
Name: Xxxxxxxx
X. Xxxxx
Title: Vice
President
|
[Signature
Page to First Amended and Restated Seller’s Purchase, Warranties and
Servicing Agreement, dated as of June 1, 2006]
70
Exhibit
A-1
Contents
of 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 in the Servicing File or delivered to
the
Purchaser or its designee pursuant to Sections 2.04 and 2.05 of the First
Amended and Restated Seller’s Purchase, Warranties and Servicing
Agreement.
1. The
original Mortgage Note endorsed “Pay to the order of ___________________ without
recourse,” and signed in the name of the Seller by an authorized officer, with
all intervening endorsements showing a complete chain of title from the
originator to the Seller. If the Mortgage Loan was acquired by the
Seller in a merger, the endorsement must be by “[Seller], successor by merger to
the [name of predecessor]”. If the Mortgage Loan was acquired or
originated by the Seller while doing business under another name, the
endorsement must be by “[Seller] formerly known as [previous
name]”. If the original note is unavailable, seller will provide an
affidavit of lost note (in form acceptable to the Purchaser) stating that the
original Mortgage Note was lost or destroyed, together with a copy of such
Mortgage Note and indemnifying the Purchaser against any and all claims arising
as a result of any person or entity claiming they are the holder of the note
or
that the note has been paid off and returned.
2. A
true certified copy, certified by the [title insurer], of the applicable First
Lien.
3. Except
as provided below and for each Mortgage Loan that is not a MERS Mortgage Loan,
the original Mortgage with evidence of recording thereon, or a copy thereof
certified by the public recording office in which such mortgage has been
recorded or, if the original Mortgage has not been returned from the applicable
public recording office, a true certified copy, certified by the [title
insurer], of the original Mortgage together with a certificate of the Seller
certifying that the original Mortgage has been delivered for recording in the
appropriate public recording office of the jurisdiction in which the Mortgaged
Property is located and in the case of each MERS Mortgage Loan, the original
Mortgage, noting the presence of the MIN of the Mortgage Loans and either
language indicating that the Mortgage Loan is a MOM Loan or if the Mortgage
Loan
was not a MOM Loan at origination, the original Mortgage and the assignment
thereof to MERS, with evidence of recording indicated thereon, or a copy of
the
Mortgage certified by the public recording office in which such Mortgage has
been recorded.
4. The
original or certified to be a true copy or if in electronic form identified
on
the Mortgage Loan Schedule, the certificate number, certified by the Seller,
of
the related Primary Mortgage Insurance Policy, if required.
5. In
the case of each Mortgage Loan that is not a MERS Mortgage Loan, the original
Assignment, from the Seller in accordance with Purchaser’s instructions, which
assignment shall, but for any blanks requested by the Purchaser, be in form
and
substance acceptable for recording, or a copy certified by the Seller as a
true
and correct copy of the
A-1-1
original
Assignment which has been sent for recordation. If the Mortgage Loan
was acquired or originated by the Seller while doing business under another
name, the Assignment must be by “[Seller] formerly known as [previous
name]”.
6. With
respect to Mortgage Loans that are not Co-op Loans, the original policy of
title
insurance, including riders and endorsements thereto, or if the policy has
not
yet been issued, a written commitment or interim binder or preliminary report
of
title issued by the title insurance or escrow company.
7. Originals
of all recorded intervening Assignments, or copies thereof, certified by the
public recording office in which such Assignments have been recorded showing
a
complete chain of title from the originator to the Seller, with evidence of
recording thereon, or a copy thereof certified by the public recording office
in
which such Assignment has been recorded or, if the original Assignment has
not
been returned from the applicable public recording office, a true certified
copy, certified by the [title insurer] of the original Assignment together
with
a certificate of the [title insurer] certifying that the original Assignment
has
been delivered for recording in the appropriate public recording office of
the
jurisdiction in which the Mortgaged Property is located.
8. Originals,
or copies thereof certified by the public recording office in which such
documents have been recorded, of each assumption, extension, modification,
written assurance or substitution agreements, if applicable, or if the original
of such document has not been returned from the applicable public recording
office, a true certified copy, certified by the [title insurer], of such
original document together with certificate of Seller certifying the original
of
such document has been delivered for recording in the appropriate recording
office of the jurisdiction in which the Mortgaged Property is
located.
9. If
the Mortgage Note or Mortgage or any other material document or instrument
relating to the Mortgage Loan 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 bearing evidence that such instrument has
been
recorded, if so required in the appropriate jurisdiction where the Mortgaged
Property is located (or, in lieu thereof, a duplicate or conformed copy of
such
instrument, together with a certificate of receipt from the recording office,
certifying that such copy represents a true and complete copy of the original
and that such original has been or is currently submitted to be recorded in
the
appropriate governmental recording office of the jurisdiction where the
Mortgaged Property is located), or if the original power of attorney or other
such instrument has been delivered for recording in the appropriate public
recording office of the jurisdiction in which the Mortgaged Property is
located.
10. With
respect to a Co-op Loan: (i) a copy of the Co-op Lease and the assignment of
such Co-op Lease to the originator of the Mortgage Loan, with all intervening
assignments showing a complete chain of title and an assignment thereof by
Seller; (ii) the stock certificate together with an undated stock power relating
to such stock certificate executed in blank; (iii) the recognition agreement
in
substantially the same form as standard a “AZTECH” form; (iv) copies of the
financial statement filed by the originator as secured party and, if applicable,
a filed UCC-3 Assignment of the subject security interest showing a complete
chain
A-1-2
of
title,
together with an executed UCC-3 Assignment of such security interest by the
Seller in a form sufficient for filing.
11. The
original of any guarantee executed in connection with the Mortgage
Note.
Notwithstanding
anything to the contrary herein, the Seller may provide one certificate for
all
of the Mortgage Loans indicating that the documents were delivered for
recording.
X-0-0
Xxxxxxx
X-0
Contents
of Servicing File
With
respect to each Mortgage Loan, the Servicing File shall include each of the
following items, which shall be available for inspection by the
Purchaser:
1. Mortgage
Loan closing statement (Form HUD-1) and any other truth-in-lending or real
estate settlement procedure forms required by law.
2. Residential
loan application.
3. Uniform
underwriter and transmittal summary (Xxxxxx Xxx Form 1008) or reasonable
equivalent.
4. Credit
report on the mortgagor.
5. Business
credit report, if applicable.
6. Residential
appraisal report and attachments thereto.
7. Verification
of employment and income except for Mortgage Loans originated under a Limited
Documentation Program, all in accordance with Seller’s Underwriting
Standards.
8. Verification
of acceptable evidence of source and amount of down payment, in accordance
with
the Underwriting Standards.
9. Photograph
of the Mortgaged Property (may be part of appraisal).
10. Survey
of the Mortgaged Property, if any.
11. Sales
contract, if applicable.
12. If
available, termite report, structural engineer’s report, water portability and
septic certification.
13. Any
original security agreement, chattel mortgage or equivalent executed in
connection with the Mortgage.
14. Any
ground lease, including all amendments, modifications and supplements
thereto.
15. Any
other document required to service the Mortgage Loans.
A-2-1
Exhibit
B
Form
of Custodial Account Letter Agreement
__________________ ,
200_
To:
As
“Seller” under the First Amended and Restated Seller’s Purchase, Warranties and
Servicing Agreement, dated as of June 1, 2006 (the “Agreement”), we hereby
authorize and request you to establish an account, as a Custodial Account
pursuant to Section 4.04 of the Agreement, to be designated as “Wachovia
Mortgage Corporation, in trust for the Purchaser, owner of various whole loan
series - principal and interest”. All deposits in the account shall
be subject to withdrawal therefrom by order signed by the
Seller. This letter is submitted to you in
duplicate. Please execute and return one original to us.
|
WACHOVIA
MORTGAGE CORPORATION,
as
SELLER
By:
______________________________
Name:
____________________________
Title:
_____________________________
|
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.
|
____________________________________
By:
______________________________
Name:
____________________________
Title:
_____________________________
|
B-1
Exhibit
C
Form
of Escrow Account Letter Agreement
_____________________,
200_
To:
As
“Seller” under the First Amended and Restated Seller’s Purchase, Warranties and
Servicing Agreement, dated as of June 1, 2006 (the “Agreement”), we hereby
authorize and request you to establish an account, as an Escrow Account pursuant
to Section 4.06 of the Agreement, to be designated as “Wachovia Mortgage
Corporation, in trust for the Purchaser, owner of various whole loan series,
and
various Mortgagors.” All deposits in the account shall be subject to
withdrawal therefrom by order signed by the Seller. This letter is
submitted to you in duplicate. Please execute and return one original
to us.
|
WACHOVIA
MORTGAGE CORPORATION,
as
SELLER
By:
______________________________
Name:
____________________________
Title:
_____________________________
|
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.
|
____________________________________
By:
______________________________
Name:
____________________________
Title:
_____________________________
|
C-1
Exhibit
D
Form
of Assignment, Assumption and Recognition Agreement
This
Assignment, Assumption and Recognition Agreement (this “Assignment Agreement”),
dated as of _________, between [Purchaser], a [_____________] corporation (the
“Assignor”), ______________________, a ________ corporation (the “Assignee”),
and Wachovia Mortgage Corporation, a North Carolina corporation (the
“Seller”):
For
good
and valuable consideration the receipt and sufficiency of which hereby are
acknowledged, and of the premises and mutual covenants herein contained, the
parties hereto hereby agree as follows:
1. The
Assignor hereby grants, transfers and assigns to Assignee all of the right,
title and interest of Assignor, as Purchaser, in, to and under (a) those certain
mortgage loans listed on Exhibit A attached hereto (the “Mortgage Loans”); and
(b) the First Amended and Restated Seller’s Purchase, Warranties and Servicing
Agreement dated as of June 1, 2006, but only to the extent of the Mortgage
Loans
(the “Purchase Agreement”). For purposes of this Assignment Agreement, the term
“Purchase Agreement” includes any separate Assignment and Conveyance pursuant to
which Seller and Assignor effectuated the purchase and sale of any Mortgage
Loan
following the execution and delivery of the First Amended and Restated Seller’s
Purchase, Warranties and Servicing Agreement dated as of June 1,
2006.
The
Assignor specifically reserves and does not assign to the Assignee hereunder
any
and all right, title and interest in, to and under any all obligations of the
Assignor with respect to any mortgage loans subject to the Purchase Agreement
which are not the Mortgage Loans set forth on Exhibit A attached hereto and
are
not the subject of this Assignment Agreement.
2. Each
of the Seller and the Assignor represent and warrant to the Assignee that (a)
the copy of the Purchase Agreement, attached hereto as Exhibit B, provided
to
the Assignee, is a true, complete and accurate copy of the Purchase Agreement,
(b) the Purchase Agreement is in full force and effect as of the date hereof,
(c) the provisions thereof have not been waived, amended or modified in any
respect, nor have any notices of termination been given thereunder, (d) the
Purchase Agreement contains all of the terms and conditions governing the sale
of the Mortgage Loans by Seller to Assignor and the purchase of the Mortgage
Loans by Assignor from Seller; provided, however, that the date of
purchase and sale and the amount of payment for the Mortgage Loans may be set
out in a Purchase Price and Terms Letter, as defined in the Purchase Agreement,
and (e) Seller sold, conveyed and transferred each Mortgage Loan to Assignor
pursuant to the Purchase Agreement.
3. The
Assignor warrants and represents to, and covenants with, the Assignee and the
Seller that:
(a) As
of the date hereof, the Assignor is not in default under the Purchase
Agreement;
D-1
(b) The
Assignor is the lawful owner of the Mortgage Loans with the full right to
transfer the Mortgage Loans and any and all of its interests, rights and
obligations under the Purchase Agreement, free from any and all claims and
encumbrances arising out of the Assignor’s ownership thereof, and the Mortgage
Loans, as well as the Purchase Agreement, upon the transfer thereof to the
Assignee as contemplated herein, shall be free and clear of all such liens,
claims and encumbrances or any lien claim or encumbrance arising out of the
ownership of the Mortgage Loans by any person at any time after Assignor first
acquired any Mortgage Loan from the Seller;
(c) The
Assignor has not received notice of, and has no knowledge of, any offsets,
counterclaims or other defenses available to the Seller with respect to the
Purchase Agreement or the Mortgage Loans;
(d) The
Assignor has not waived or agreed to any waiver under, or agreed to any
amendment or other modification of, the Purchase Agreement or the Mortgage
Loans. The Assignor has no knowledge of, and has not received notice of, any
waivers under or amendments or other modifications of, or assignments of rights
or obligations under or defaults under, the Purchase Agreement, or the Mortgage
Loans;
(e) The
Assignor is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation, and has all requisite
corporate power and authority to sell, transfer and assign the Mortgage
Loans;
(f) The
Assignor has full corporate power and authority to execute, deliver and perform
under this Assignment Agreement, and to consummate the transactions set forth
herein. The consummation of the transactions contemplated by this Assignment
Agreement is in the ordinary course of the Assignor’s business and will not
conflict with, or result in a breach of, any of the terms, conditions or
provisions of the Assignor’s charter or by-laws, or any legal restriction, or
any material agreement or instrument to which the Assignor is now a party or
by
which it is bound, or result in the violation of any law, rule, regulation,
order, judgment or decree to which the Assignor or its property is subject.
The
execution, delivery and performance by the Assignor of this Assignment
Agreement, and the consummation by it of the transactions contemplated hereby,
have been duly authorized by all necessary corporate action of the Assignor.
This Assignment Agreement has been duly executed and delivered by the Assignor
and constitutes the valid and legally binding obligation of the Assignor
enforceable against the Assignor in accordance with its respective terms except
as enforceability thereof may be limited by bankruptcy, insolvency, or
reorganization or other similar laws now or hereinafter in effect relating
to
creditor’s rights generally and by general principles of equity, regardless of
whether such enforceability is considered in a proceeding in equity or in
law;
(g) No
material consent, approval, order or authorization of, or declaration, filing
or
registration with, any governmental entity is required to be obtained or made
by
the Assignor in connection with the execution, delivery or performance by the
Assignor of this Assignment Agreement, or the consummation by it of the
transactions contemplated hereby; and
(h) The
Assignor has paid the purchase price for the Mortgage Loans and has satisfied
any conditions to closing required of it under the terms of the Purchase
Agreement.
D-2
4. The
Assignee warrants and represents to, and covenants with, the Assignor and the
Seller that:
(a) The
Assignee is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation, and has all requisite
corporate power and authority to acquire, own and purchase the Mortgage
Loans;
(b) The
Assignee has full corporate power and authority to execute, deliver and perform
under this Assignment Agreement, and to consummate the transactions set forth
herein. The consummation of the transactions contemplated by this Assignment
Agreement is in the ordinary course of the Assignee’s business and will not
conflict with, or result in a breach of, any of the terms, conditions or
provisions of the Assignee’s charter or by-laws, or any legal restriction, or
any material agreement or instrument to which the Assignee is now a party or
by
which it is bound, or result in the violation of any law, rule, regulation,
order, judgment or decree to which the Assignee or its property is subject.
The
execution, delivery and performance by the Assignee of this Assignment
Agreement, and the consummation by it of the transactions contemplated hereby,
have been duly authorized by all necessary corporate action of the Assignee.
This Assignment Agreement has been duly executed and delivered by the Assignee
and constitutes the valid and legally binding obligation of the Assignee
enforceable against the Assignee in accordance with its respective terms except
as enforceability thereof may be limited by bankruptcy, insolvency, or
reorganization or other similar laws now or hereinafter in effect relating
to
creditor’s rights generally and by general principles of equity, regardless of
whether such enforceability is considered in a proceeding in equity or in
law;
(c) No
material consent, approval, order or authorization of, or declaration, filing
or
registration with, any governmental entity is required to be obtained or made
by
the Assignee in connection with the execution, delivery or performance by the
Assignee of this Assignment Agreement, or the consummation by it of the
transactions contemplated hereby; and
(d) The
Assignee agrees to be bound, as Purchaser, by all of the terms, covenants and
conditions of the Purchase Agreement and the Mortgage Loans, and from and after
the date hereof, the Assignee assumes for the benefit of each of the Seller
and
the Assignor all of the Assignor’s obligations as Purchaser thereunder, with
respect to the Mortgage Loans.
5. The
Seller warrants and represents to, and covenants with, the Assignor and the
Assignee that:
(a) The
Seller is not a natural person or a general partnership and is duly organized,
validly existing and in good standing under the laws of the jurisdiction of
its
formation, and has all requisite power and authority to service the Mortgage
Loans;
(b) The
Seller has full power and authority to execute, deliver and perform under this
Assignment Agreement, and to consummate the transactions set forth herein.
The
consummation of the transactions contemplated by this Assignment Agreement
is in
the ordinary course of the Seller’s business and will not conflict with, or
result in a breach of, any of the terms, conditions or provisions of the
Seller’s charter or by-laws, or any legal restriction, or any material agreement
or instrument to which the Seller is now a party or by which it is bound, or
D-3
result
in
the violation of any law, rule, regulation, order, judgment or decree to which
the Seller or its property is subject. The execution, delivery and performance
by the Seller of this Assignment Agreement, and the consummation by it of the
transactions contemplated hereby, have been duly authorized by all necessary
corporate action of the Seller. This Assignment Agreement has been duly executed
and delivered by the Seller and constitutes the valid and legally binding
obligation of the Seller enforceable against the Seller in accordance with
its
respective terms except as enforceability thereof may be limited by bankruptcy,
insolvency, or reorganization or other similar laws now or hereinafter in effect
relating to creditors’ rights generally and by general principles of equity,
regardless of whether such enforceability is considered in a proceeding in
equity or in law;
(d) No
material consent, approval, order or authorization of, or declaration, filing
or
registration with, any governmental entity is required to be obtained or made
by
the Seller in connection with the execution, delivery or performance by the
Seller of this Assignment Agreement, or the consummation by it of the
transactions contemplated hereby;
(e) As
of the date hereof, the Seller is not in default under the Purchase Agreement;
and
(f) No
event has occurred or has failed to occur, during the period commencing on
date
on which Assignor acquired the Mortgage Loans and ending on the date hereof,
inclusive, which would make the representations and warranties set forth in
Section 3.01 of the Purchase Agreement untrue if such representations and
warranties were made with respect to the Mortgage Loans effective as of the
date
hereof.
6.
From and after the date hereof, the Seller shall recognize the Assignee as
the
owner of the Mortgage Loans, and shall look solely to the Assignee for
performance from and after the date hereof of the Assignor’s obligations with
respect to the Mortgage Loans.
7.
Notice Addresses.
(a) The
Assignee’s address for purposes of all notices and correspondence related to the
Mortgage Loans and this Assignment Agreement is:
________________
________________
________________
Attention:
________________
(b) The
Assignor’s address for purposes for all notices and correspondence related to
the Mortgage Loans and this Assignment Agreement is:
[_____________________________]
[_____________________________]
[_____________________________]
[_____________________________]
Attention:
_______________
D-4
(c) The
Seller’s address for purposes of all notices and correspondence related to the
Mortgage Loans and this Assignment Agreement is:
Wachovia
Mortgage Corporation
0000
Xxxxxxxxx Xxxxxx Xxxxx
Xxxxxxx,
Xxxxx Xxxxxxxx 00000
Attention:
Xxx Xxxxxx
8. This
Assignment Agreement shall be construed in accordance with the substantive
laws
of the State of New York (without regard to conflict of laws principles) and
the
obligations, rights and remedies of the parties hereunder shall be determined
in
accordance with such laws, except to the extent preempted by federal
law.
9. This
Assignment Agreement shall inure to the benefit of the successors and assigns
of
the parties hereto. Any entity into which the Seller, the Assignor or the
Assignee may be merged or consolidated shall, without the requirement for any
further writing, be deemed the Seller, the Assignor or the Assignee,
respectively, hereunder.
10. No
term or provision of this Assignment Agreement may be waived or modified unless
such waiver or modification is in writing and signed by the party against whom
such waiver or modification is sought to be enforced.
11. This
Assignment Agreement shall survive the conveyance of the Mortgage Loans and
the
assignment of the Purchase Agreement by the Assignor.
12. Notwithstanding
the assignment of the Purchase Agreement by either the Assignor or Assignee,
this Assignment Agreement shall not be deemed assigned by the Seller or the
Assignor unless assigned by separate written instrument.
13. For
the purpose for facilitating the execution of this Assignment Agreement as
herein provided and for other purposes, this Assignment Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute and be one and the same instrument.
[signatures
on following page]
D-5
IN
WITNESS WHEREOF, the parties have caused this Assignment Agreement to be
executed by their duly authorized officers as of the date first above
written.
|
[_____________________________]
Assignor
By:
Name:
Title:
_______________________
Assignee
By:
Name:
Title:
Wachovia
Mortgage Corporation
Seller
By:
Name:
Title:
|
D-6
Exhibit
E
Form
of Assignment and Conveyance
On
this
____ day of ________, 200_, Wachovia Mortgage Corporation (“Wachovia”) as the
Seller under that certain First Amended and Restated Seller’s Purchase,
Warranties and Servicing Agreement, dated as of June 1, 2006 (the “Agreement”),
by and between Wachovia and Xxxxxx Xxxxxxx Mortgage Capital Inc. (the
“Purchaser”) does hereby sell, transfer, assign, set over and convey to the
Purchaser under the Agreement, without recourse, but subject to the terms of
the
Agreement, all rights, title and interest of Wachovia (excluding the right
to
service the Mortgage Loans) in and to the Mortgage Loans listed on the Mortgage
Loan Schedule attached hereto as Exhibit A, together with the Mortgage
Files and all rights and obligations arising under the documents contained
therein. Pursuant to Section 2.07 of the Agreement, Wachovia has
delivered to the Purchaser the documents for each Mortgage Loan to be purchased
as set forth therein. The contents of each Servicing File required to
be retained by Wachovia to service the Mortgage Loans pursuant to the Agreement
and thus not delivered to the Purchaser are and shall be held in trust by
Wachovia, for the benefit of the Purchaser as the owner
thereof. Wachovia’s possession of any portion of the Servicing File
is at the will of the Purchaser for the sole purpose of facilitating servicing
of the related Mortgage Loan pursuant to the Agreement, and such retention
and
possession by Wachovia 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 Wachovia shall immediately vest in the Purchaser
and
shall be retained and maintained, in trust, by Wachovia at the will of the
Purchaser in such custodial capacity only.
With
respect to the Mortgage Loans listed on the Mortgage Loan Schedule attached
hereto as Exhibit A, the term Standard & Poor’s Glossary, as used in
the Agreement, shall refer to Version __ of the Standard & Poor’s LEVELS®
Glossary.
E-1
Capitalized
terms used herein and not otherwise defined shall have the meanings set forth
in
the Agreement.
|
WACHOVIA
MORTGAGE CORPORATION
By:
______________________________
Name:
____________________________
Title:
_____________________________
|
E-2
Exhibit
F
Request
for Release of Documents and Receipt
RE:
Mortgage Loan #___________________________________
BORROWER:
__________________________________________________
PROPERTY:
__________________________________________________
Pursuant
to a First Amended and Restated Seller’s Purchase, Warranties and Servicing
Agreement (the “Agreement”) between the Seller and the Purchaser, the
undersigned hereby certifies that he or she is an officer of the Seller
requesting release of the documents for the reason specified
below. The undersigned further certifies that:
(Check
one of the items below)
|
_____
|
On
_________________, the above captioned mortgage loan was paid in
full or
the Seller has been notified that payment in full has been or will
be
escrowed. The Seller hereby certifies that all amounts with
respect to this loan which are required under the Agreement have
been or
will be deposited in the Custodial Account as required.
|
|
_____
|
The
above captioned loan is being repurchased pursuant to the terms of
the
Agreement. The Seller hereby certifies that the repurchase
price has been credited to the Custodial Account as required under
the
Agreement.
|
|
_____
|
The
above captioned loan is being placed in foreclosure and the original
documents are required to proceed with the foreclosure
action. The Seller hereby certifies that the documents will be
returned to the Purchaser in the event of
reinstatement.
|
|
_____
|
Other
(explain)
|
|
_______________________________________________________
_______________________________________________________
|
All
capitalized terms used herein and not defined shall have the meanings assigned
to them in the Agreement.
F-1
Based
on
this certification and the indemnities provided for in the Agreement, please
release to the Seller all original mortgage documents in your possession
relating to this loan.
|
Dated:_________________
|
By:________________________________
Signature
|
|
___________________________________
Title
|
Send
documents
to: _____________________________________________
_____________________________________________
_____________________________________________
Acknowledgment:
Purchaser
hereby acknowledges that all original documents previously released on the
above
captioned mortgage loan have been returned and received by the
Purchaser.
|
Dated:_________________
|
By:________________________________
Signature
|
|
Title:_______________________________
|
F-2
Exhibit
G
Form
of S-50Y Report
[On
File With Wachovia Mortgage Corporation]
G-1
Exhibit
H
Form
of P-4DL Report
[On
File With Wachovia Mortgage Corporation]
H-1
Exhibit
I
This
INDEMNIFICATION AND CONTRIBUTION AGREEMENT (“Agreement”), dated as of
[DATE], among [DEPOSITOR] (the “Depositor”), a _______ corporation (the
“Depositor”), Xxxxxx Xxxxxxx Mortgage Capital Inc., a New York
corporation (“Xxxxxx”) and Wachovia Mortgage Corporation, a North
Carolina corporation, as seller and as servicer (the
“Seller”).
W
I T N E
S S E T H:
WHEREAS,
the Depositor is acting as depositor and registrant with respect to the
Prospectus, dated [DATE], and the Prospectus Supplement to the Prospectus,
dated
[_____] (the “Prospectus Supplement”) and the Term Sheet, dated [______],
(the “Term Sheet”) relating to [________] (the “Certificates”) to
be issued pursuant to a Pooling and Servicing Agreement, dated as of [DATE]
(the
“P&S”), among the Depositor, as depositor, [_________], as master
servicer and securities administrator (the “Servicer”), and [_______], as
trustee (the “Trustee”);
WHEREAS,
as an inducement to the Depositor to enter into the P&S, and [__________]
(the “Underwriter”) to enter into the Underwriting Agreement, dated
[________] (the “Underwriting Agreement”), between the Depositor and the
Underwriter, and [_____________] (the “Initial Purchaser”) to enter into
the Certificate Purchase Agreement, dated [DATE] (the “Certificate Purchase
Agreement”), between the Depositor and the Initial Purchaser, Seller has
agreed to provide for indemnification and contribution on the terms and
conditions hereinafter set forth;
WHEREAS,
Xxxxxx purchased from Seller certain of the Mortgage Loans underlying the
Certificates (the “Mortgage Loans”) pursuant to a First Amended and
Restated Seller’s Purchase, Warranties and Servicing Agreement, dated as of June
1, 2006 (the “Sale and Servicing Agreement”); and
WHEREAS,
pursuant to Section 2.07 of the Reg AB Addendum, the Seller has agreed to
indemnify the Depositor, Xxxxxx, the Underwriter, the Initial Purchaser and
their respective present and former directors, officers, employees and
agents.
NOW
THEREFORE, in consideration of the agreements contained herein, and other
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the Depositor, Xxxxxx and the Seller agree as
follows:
1. Indemnification
and Contribution.
(a) The
Seller agrees to indemnify and hold harmless the Depositor, Xxxxxx, the
Underwriter, the Initial Purchaser and their respective Affiliates and their
respective present and former directors, officers, employees and agents and
each
person, if any, who controls the Depositor, Xxxxxx, the Underwriter, the Initial
Purchaser or such Affiliates within the meaning of either Section 15 of the
Securities Act of 1933, as amended (the “1933 Act”), or Section 20 of the
Securities Exchange Act of 1934, as amended (the “1934 Act”), against any
and all losses,
I-1
claims,
damages or liabilities, to which they or any of them may become subject under
the 1933 Act, the 1934 Act or other federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based in
whole or in part upon any material non-compliance with the requirements of
Regulation AB Items 1108, 1110, 1111 (it being understood that no representation
is made by Seller with respect to information regarding the mortgage loans
as
aggregated by the Depositor), 1117 or 1119, or arise out of or are based in
whole or in part upon any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus Supplement or the Term Sheet or any
omission or alleged omission to state in the Prospectus Supplement or the Term
Sheet a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were made,
not
misleading, or any such untrue statement or omission or alleged untrue statement
or alleged omission made in any amendment of or supplement to the Prospectus
Supplement or the Term Sheet (provided that Xxxxxx has provided the Seller
with
reasonable advanced notice of such amendment or supplement and Seller if
afforded no fewer than five (5) Business Days to review and, if required,
update, the Seller Information stated therein) and agrees to reimburse the
Depositor, Xxxxxx, the Underwriter, the Initial Purchaser or such Affiliates
and
each such officer, director, employee, agent and controlling person promptly
upon demand for any legal or other expenses reasonably incurred by any of them
in connection with investigating or defending or preparing to defend against
any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that Seller shall be liable in any such case only to the
extent that any such loss, claim, damage, liability or action arises out of,
or
is based upon, any untrue statement or alleged untrue statement or omission
or
alleged omission set forth in or omitted from the Seller
Information. The foregoing indemnity agreement is in addition to any
liability which Seller may otherwise have to the Depositor, Xxxxxx, the
Underwriter, the Initial Purchaser their Affiliates or any such director,
officer, employee, agent or controlling person of the Depositor, Xxxxxx, the
Underwriter, the Initial Purchaser or their respective Affiliates.
(b) Xxxxxx
agrees to indemnify and hold harmless the Seller and its present and former
directors, officers, employees and agents and each person, if any, who controls
the Seller within the meaning of either Section 15 of the 1933 Act, or Section
20 of the 1934 Act against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject under the
1933
Act, the 1934 Act or other federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based in whole or in part
upon any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus Supplement or the Term Sheet or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in
which
they were made, not misleading, or any such untrue statement or omission or
alleged untrue statement or alleged omission made in any amendment of or
supplement to the Prospectus Supplement or the Term Sheet, or arise out of
or
are based in whole or in part upon any material non-compliance with the
requirements of Regulation AB (17 CFR 229.1100 et seq.), and Xxxxxx shall in
each case reimburse the Seller and each such officer, director, employee, agent
and controlling person promptly upon demand for any legal or other expenses
reasonably incurred by any of them in connection with investigating or defending
or preparing to defend against any such loss, claim, damage, liability or action
as such expenses are incurred; provided, however,
I-2
that
Xxxxxx shall be liable in any such case only to the extent that any such loss,
claim, damage, liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged omission set forth
in or omitted from the information set forth in the Prospectus Supplement or
the
Term Sheet or any amendment of or supplement to either the Prospectus Supplement
or the Term Sheet other than (i) the Seller Information or (ii) any information
regarding the Mortgage Loans set forth in the Prospectus Supplement or the
Term
Sheet or any amendment of or supplement to either that is derived from
loan-level information provided by the Seller to the Purchaser, the Depositor
or
any of their Affiliates. The foregoing indemnity agreement is in
addition to any liability which Xxxxxx may otherwise have to the Seller or
any
such director, officer, employee, agent or controlling person of the
Seller.
As
used
herein:
“Seller
Information” means any information relating to Seller, the Mortgage Loans
and/or the underwriting guidelines relating to the Mortgage Loans provided
by
the Seller for inclusion in the Prospectus Supplement or the Term
Sheet.
(c) Promptly
after receipt by any indemnified party under this Section 1 of notice of
any claim or the commencement of any action, such indemnified party shall,
if a
claim in respect thereof is to be made against any indemnifying party under
this
Section 1, notify the indemnifying party in writing of the claim or the
commencement of that action; provided, however, that the failure
to notify an indemnifying party shall not relieve it from any liability which
it
may have under this Section 1 except to the extent it has been materially
prejudiced by such failure; and provided, further, however,
that the failure to notify any indemnifying party shall not relieve it from
any
liability which it may have to any indemnified party otherwise than under this
Section 1.
If
any
such claim or action shall be brought against an indemnified party, and it
shall
notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it wishes, jointly with any
other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After
notice from the indemnifying party to the indemnified party of its election
to
assume the defense of such claim or action, except as provided in the following
paragraph, the indemnifying party shall not be liable to the indemnified party
under this Section 1 for any legal or other expenses subsequently
incurred by the indemnified party in connection with the defense thereof other
than reasonable costs of investigation.
Any
indemnified party shall have the right to employ separate counsel in any such
action and to participate in the defense thereof, but the fees and expenses
of
such counsel shall be at the expense of such indemnified party
unless: (i) the employment thereof has been specifically authorized
by the indemnifying party in writing; (ii) such indemnified party shall have
been advised by such counsel that 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
necessary or appropriate for such indemnified party to employ separate counsel;
or (iii) the indemnifying party has failed to assume the defense of such action
and employ counsel reasonably satisfactory to the indemnified party, in which
case, if such indemnified party notifies the indemnifying party in writing
that
it elects to employ separate
I-3
counsel
at the expense of the indemnifying party, the indemnifying party shall not
have
the right to assume the defense of such action on behalf of such indemnified
party, it being understood, however, the indemnifying party shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses
of
more than one separate firm of attorneys (in addition to local counsel) at
any
time for all such indemnified parties.
Each
indemnified party, as a condition of the indemnity agreements contained in
this
Section 1, shall cooperate with the indemnifying party in the defense of
any such action or claim. No indemnifying party shall be liable for
any settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with its written
consent or if there be a final judgment for the plaintiff in any such action,
the indemnifying party agrees to indemnify and hold harmless any indemnified
party from and against any loss or liability by reason of such settlement or
judgment.
Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for reasonable fees
and
expenses of counsel, the indemnifying party agrees that it shall be liable
for
any settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement.
(d) If
the indemnification provided for in this Section 1 is unavailable to an
indemnified party, then the indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities,
in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party and the indemnified party, respectively, in connection with
the statements or omissions that result in such losses, claims, damages or
liabilities, as well as any other relevant equitable
considerations. The relative fault of the indemnified party and
indemnifying party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by such parties and their relative knowledge, access to information
and
opportunity to correct or prevent such statement or omission and any other
equitable considerations.
(e) The
indemnity and contribution agreements contained in this Section 1 shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by the Depositor, Xxxxxx, the
Underwriter, the Initial Purchaser, their respective Affiliates, directors,
officers, employees or agents or any person controlling the Depositor, Xxxxxx,
the Underwriter, the Initial Purchaser or any such Affiliate, and (iii)
acceptance of and payment for any of the Offered Certificates or Private
Certificates.
2. Notices. All
communications hereunder will be in writing and effective only on receipt,
and,
if sent to Seller, will be mailed, delivered or faxed or emailed and
confirmed by mail to Wachovia Mortgage Corporation, 000 Xxxxx Xxxxxxx Xxxxxx,
Xxxxx 0000,
X-0
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000, Attention: Xxxxxx Xxxxxx, Fax: (000) 000-0000, with a
copy
to Wachovia Mortgage Corporation, 0000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxx
Xxxxxxxx 00000, Attention: Xxx Xxxxxx, Fax: (000) 000-0000; if sent to Xxxxxx,
xxxx be mailed, delivered or faxed or emailed and confirmed by mail
to Xxxxxx Xxxxxxx Mortgage Capital Inc., 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxxx Xxxxxxxxxx, Email:
xxxxx.xxxxxxxxxx@xxxxxxxxxxxxx.xxx, with copies to (i) Xxxxx X. Xxx, Xxxxxx
Xxxxxxx – Legal Counsel, Securities, 0000 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Email: xxxxx.x.xxx@xxxxxxxxxxxxx.xxx, and (ii) Xxxxxx Xxxxxxx,
Xxxxxx Xxxxxxx – SPG Finance, Xxxxxx Xxxxxxx, 0000 Xxxxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Email: xxxxxx.xxxxxxx@xxxxxxxxxxxxx.xxx; if to the
Depositor, will be mailed, delivered or telegraphed and confirmed to
[___________]; Attention: [________]; or if to the Underwriter, will be mailed,
delivered or telegraphed and confirmed to [_________]; or if to the Initial
Purchaser, will be mailed, delivered or telegraphed and confirmed to
[_________]; Attention: [__________].
3. Miscellaneous. This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of New York without giving effect to the conflict of laws provisions
thereof. This Agreement shall inure to the benefit of and be binding
upon the parties hereto and their successors and assigns and the controlling
persons referred to herein, and no other person shall have any right or
obligation hereunder. Neither this Agreement nor any term hereof may
be changed, waived, discharged or terminated orally, but only by an instrument
in writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought. This Agreement may be executed in
counterparts, each of which when so executed and delivered shall be considered
an original, and all such counterparts shall constitute one and the same
instrument. Capitalized terms used but not defined herein shall have
the meanings provided in the P&S.
[SIGNATURE
PAGE FOLLOWS]
I-5
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective officers hereunto duly authorized, this ____ day
of
_____, 200__.
|
[DEPOSITOR]
By: __________________________
Name:
Title:
XXXXXX
XXXXXXX MORTGAGE CAPITAL INC.
By: __________________________
Name:
Title:
WACHOVIA
MORTGAGE CORPORATION
By: __________________________
Name:
Title:
|
I-6
Exhibit
J
Form
of Annual Certification
|
|
Re:
|
[_______________]
(the “Trust”), Mortgage Pass-Through Certificates, Series [_____],
issued pursuant to the Pooling and Servicing Agreement, dated as
of
[_____], 200[_] (the “Pooling and Servicing Agreement”), among
[_____], as depositor (the “Depositor”), [_____], as trustee (the
“Trustee”), [_____], as servicer (the
“Servicer”), and [_____], as responsible
party
|
I,
[identify the certifying individual], certify to the Depositor and the Trustee,
and their officers, directors and Affiliates, and with the knowledge and intent
that they will rely upon this certification, that:
1. The
servicing information required to be provided to the Trustee by the Servicer
under the Pooling and Servicing Agreement has been so provided;
2. I
am responsible for reviewing the activities performed by the Servicer under
the
Pooling and Servicing Agreement and based upon my knowledge and the annual
compliance review required under the Pooling and Servicing Agreement, and except
as disclosed in the annual compliance statement required to be delivered to
the
Trustee in accordance with the terms of the Pooling and Servicing Agreement
(which has been so delivered to the Trustee), the Servicer has fulfilled its
obligations under the Pooling and Servicing Agreement; and
3. All
significant deficiencies relating to the Servicer’s compliance with the minimum
servicing standards for purposes of the report provided by an independent public
accountant, after conducting a review conducted in compliance with the Uniform
Single Attestation Program for Mortgage Bankers or similar procedure, as set
forth in the Pooling and Servicing Agreement, have been disclosed to such
accountant and are included in such report.
|
Date:
_________________________
_______________________________
[Signature]
[Title]
|
J-1
