GOLDMAN SACHS MORTGAGE COMPANY Purchaser and WELLS FARGO BANK, N.A. Company SECOND AMENDED AND RESTATED MASTER SELLER’S WARRANTIES AND SERVICING AGREEMENT Dated as of November 1, 2005 Fixed Rate and Adjustable Rate Residential Mortgage Loans
Execution
Copy
11/14/05
____________________________________________________
XXXXXXX
XXXXX MORTGAGE COMPANY
Purchaser
and
XXXXX
FARGO BANK, N.A.
Company
____________________________________________________
SECOND
AMENDED AND RESTATED MASTER SELLER’S
WARRANTIES
AND SERVICING AGREEMENT
Dated
as of November 1, 2005
____________________________________________________
Fixed
Rate and Adjustable Rate Residential Mortgage Loans
TABLE
OF CONTENTS
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ARTICLE
I
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|
DEFINITIONS
|
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ARTICLE
II
|
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CONVEYANCE
OF MORTGAGE LOANS; POSSESSION OF CUSTODIAL MORTGAGE FILES; BOOKS
AND
RECORDS; DELIVERY OF DOCUMENTS
|
|||
|
Section
2.1
|
Conveyance
of Mortgage Loans; Possession of Custodial Mortgage Files; Maintenance
of
Retained Mortgage Files and Servicing Files.
|
15
|
|
|
Section
2.2
|
Books
and Records; Transfers of Mortgage Loans.
|
17
|
|
|
Section
2.3
|
Delivery
of Documents
|
18
|
|
|
Section
2.4
|
Mortgage
Schedule.
|
20
|
|
|
Section
2.5
|
Examination
of Custodial Mortgage Files.
|
20
|
|
|
Section
2.6
|
Representations,
Warranties and Agreements of the Company.
|
21
|
|
|
Section
2.7
|
Representation,
Warranties and Agreement of Purchaser.
|
21
|
|
|
Section
2.8
|
Closing.
|
22
|
|
|
Section
2.9
|
Closing
Documents.
|
22
|
|
|
ARTICLE
III
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|||
|
REPRESENTATIONS
AND WARRANTIES REMEDIES AND BREACH
|
|||
|
Section
3.1
|
Company
Representations and Warranties.
|
23
|
|
|
Section
3.2
|
Representations
and Warranties Regarding Individual Mortgage Loans.
|
25
|
|
|
Section
3.3
|
Repurchase.
|
40
|
|
|
ARTICLE
IV
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|
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
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|
Section
4.1
|
Company
to Act as Servicer.
|
41
|
|
|
Section
4.2
|
Liquidation
of Mortgage Loans.
|
43
|
|
|
Section
4.3
|
Collection
of Mortgage Loan Payments.
|
44
|
|
|
Section
4.4
|
Establishment
of and Deposits to Custodial Account.
|
44
|
|
|
Section
4.5
|
Permitted
Withdrawals From Custodial Account.
|
46
|
|
|
Section
4.6
|
Establishment
of and Deposits to Escrow Account.
|
47
|
|
|
Section
4.7
|
Permitted
Withdrawals From Escrow Account.
|
48
|
|
|
Section
4.8
|
Payment
of Taxes, Insurance and Other Charges.
|
49
|
|
|
Section
4.9
|
Protection
of Accounts.
|
49
|
|
|
Section
4.10
|
Maintenance
of Hazard Insurance.
|
49
|
|
|
Section
4.11
|
Maintenance
of PMI Policy; Claims.
|
51
|
|
|
Section
4.12
|
Maintenance
of Mortgage Impairment Insurance.
|
52
|
|
|
Section
4.13
|
Maintenance
of Fidelity Bond and Errors and Omissions Insurance.
|
52
|
|
|
Section
4.14
|
Inspections.
|
53
|
|
|
Section
4.15
|
Restoration
of Mortgaged Property.
|
53
|
|
|
Section
4.16
|
Claims.
|
53
|
|
|
Section
4.17
|
Title,
Management and Disposition of REO Property.
|
54
|
|
|
Section
4.18
|
Real
Estate Owned Reports.
|
55
|
|
|
Section
4.19
|
Liquidation
Reports.
|
55
|
|
|
Section
4.20
|
Reports
of Foreclosures and Abandonments of Mortgaged Property.
|
55
|
|
|
Section
4.21
|
Fair
Credit Reporting Act.
|
56
|
|
|
Section
4.22
|
Establishment
of and Deposits to Subsidy Account.
|
56
|
|
|
Section
4.23
|
Establishment
of and Deposits to Buydown Account.
|
57
|
|
|
Section
4.24
|
Letter
of Credit Compliance.
|
58
|
|
|
Section
4.25
|
Letter
of Credit Draws.
|
58
|
|
|
Section
4.26
|
Assignment
of the Letter of Credit.
|
59
|
|
|
Section
4.27
|
Pledge
Holder Defaults.
|
59
|
|
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ARTICLE
V
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|
PAYMENTS
TO PURCHASER
|
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|
Section
5.1
|
Remittances.
|
60
|
|
|
Section
5.2
|
Statements
to Purchaser.
|
61
|
|
|
Section
5.3
|
Monthly
Advances by Company.
|
61
|
|
|
ARTICLE
VI
|
|||
|
GENERAL
SERVICING PROCEDURES
|
|||
|
Section
6.1
|
Transfers
of Mortgaged Property.
|
62
|
|
|
Section
6.2
|
Satisfaction
of Mortgages and Release of Custodial Mortgage Files.
|
63
|
|
|
Section
6.3
|
Servicing
Compensation.
|
63
|
|
|
Section
6.4
|
Annual
Statement as to Compliance.
|
63
|
|
|
Section
6.5
|
Annual
Independent Public Accountants’ Servicing Report.
|
64
|
|
|
Section
6.6
|
Right
to Examine Company Records.
|
66
|
|
|
Section
6.7
|
Compliance
with REMIC Provisions.
|
67
|
|
|
ARTICLE
VII
|
|||
|
COMPANY
TO COOPERATE
|
|||
|
Section
7.1
|
Provision
of Information.
|
67
|
|
|
Section
7.2
|
Financial
Statements; Servicing Facility.
|
67
|
|
|
ARTICLE
VIII
|
|||
|
THE
COMPANY
|
|||
|
Section
8.1
|
Indemnification;
Third Party Claims.
|
68
|
|
|
Section
8.2
|
Merger
or Consolidation of the Company.
|
68
|
|
|
Section
8.3
|
Limitation
on Liability of Company and Others.
|
69
|
|
|
Section
8.4
|
Limitation
on Resignation and Assignment by Company.
|
69
|
|
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ARTICLE
IX
|
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|
SECURITIZATION
TRANSACTION
|
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|
Section
9.1
|
Removal
of Mortgage Loans from Inclusion Under this Agreement Upon a
Securitization Transaction
|
70
|
|
|
ARTICLE
X
|
|||
|
DEFAULT
|
|||
|
Section
10.1
|
Events
of Default.
|
80
|
|
|
Section
10.2
|
Waiver
of Defaults.
|
82
|
|
|
ARTICLE
XI
|
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|
TERMINATION
|
|||
|
Section
11.1
|
Termination.
|
83
|
|
|
Section
11.2
|
Termination
Without Cause.
|
83
|
|
|
Section
11.3
|
Termination
With Cause.
|
83
|
|
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ARTICLE
XII
|
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|
MISCELLANEOUS
PROVISIONS
|
|||
|
Section
12.1
|
Successor
to Company.
|
84
|
|
|
Section
12.2
|
Amendment.
|
85
|
|
|
Section
12.3
|
Governing
Law.
|
85
|
|
|
Section
12.4
|
Duration
of Agreement.
|
85
|
|
|
Section
12.5
|
Notices.
|
85
|
|
|
Section
12.6
|
Severability
of Provisions.
|
86
|
|
|
Section
12.7
|
Relationship
of Parties.
|
86
|
|
|
Section
12.8
|
Execution;
Successors and Assigns.
|
87
|
|
|
Section
12.9
|
Recordation
of Assignments of Mortgage.
|
87
|
|
|
Section
12.10
|
Assignment
by Purchaser.
|
87
|
|
|
Section
12.11
|
Solicitation
of Mortgagor.
|
87
|
|
EXHIBITS
|
Exhibit
A
|
Form
of Assignment and Conveyance Agreement
|
|
Exhibit
A-1
|
Data
File Elements
|
|
Exhibit
B
|
Contents
of Each Mortgage Loan File
|
|
Exhibit
C
|
Form
of Custodial Agreement
|
|
Exhibit
D
|
Form
of Opinion of Counsel
|
|
Exhibit
E
|
Items
to Be Included in Monthly Remittance Advice
|
|
Exhibit
F
|
Form
of Assignment, Assumption and Recognition Agreement
|
|
Exhibit
G
|
Form
of Company’s Officer’s Certificate
|
|
Exhibit
H
|
Form
of Annual Certification
|
|
Exhibit
I
|
Servicing
Criteria to be addressed in Assessment of Compliance
|
|
Exhibit
J
|
Sarbanes
Certification
|
This
Second Amended and Restated Master Seller’s Warranties and Servicing Agreement
for fixed rate and adjustable rate residential first mortgage loans, dated
and
effective as of November 1, 2005, and is executed between Xxxxxxx Xxxxx Mortgage
Company, as purchaser (the “Purchaser”),
and
Xxxxx Fargo Bank, N.A., as seller and servicer (the “Company”).
WITNESSETH
WHEREAS,
the Purchaser and the Company are parties to that certain Amended and Restated
Master Seller’s Warranties and Servicing Agreement, dated as of June 1, 2005
(the “Amended and Restated Master
Agreement”),
between the Purchaser and the Company;
WHEREAS,
the Company has requested the Purchaser to agree to amend certain provisions
of
the Amended and Restated Master Agreement as set forth in this Second Amended
and Restated Master Seller’s Warranties and Servicing Agreement. The Purchaser
is willing to agree to such amendments, but only on the terms and subject to
the
conditions set forth in this Second Amended and Restated Master Seller’s
Warranties and Servicing Agreement;
WHEREAS,
the Purchaser desires to purchase from time to time from the Company and the
Company desires to sell from time to time to the Purchaser certain first-lien,
fixed rate and adjustable rate residential mortgage loans (the “Mortgage
Loans”)
which
shall be delivered in pools of whole loans (each, a “Mortgage
Loan Package”)
on
various dates as provided herein (each, a “Closing
Date”);
WHEREAS,
each of the Mortgage Loans is secured by a mortgage, deed of trust or other
security instrument creating a first lien on a one-to-four family residential
dwelling located in the jurisdiction indicated on the Mortgage Loan Schedule
for
the related Mortgage Loan; and
WHEREAS,
the Purchaser and the Company wish to prescribe the manner of purchase of the
Mortgage Loans and the conveyance, servicing and control of the Mortgage Loans
including the servicing and control of the Mortgage Loans previously purchased
from the Company by the Purchaser pursuant to the Amended and Restated Master
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
Company agree as follows:
ARTICLE
I
DEFINITIONS
Whenever
used herein, the following words and phrases, unless the content otherwise
requires, shall have the following meanings:
-1-
Accepted
Servicing Practices:
With
respect to any Mortgage Loan, those customary mortgage servicing practices
of
prudent mortgage lending institutions which service mortgage loans of the same
type as such Mortgage Loan in the jurisdiction where the related Mortgaged
Property is located.
Adjustable
Rate Mortgage Loan:
An
adjustable rate Mortgage Loan purchased pursuant to this Agreement.
Administration
Disclosure:
With
respect to a Pledged Asset Mortgage Loan, the Pledged Asset Mortgage Loan
Administration and Information Sharing Disclosure and Acknowledgment executed
by
the related Borrower.
Agency/Agencies:
Xxxxxx
Xxx or Freddie Mac, or any of them as applicable.
Agency
Transfer:
Any
sale or transfer of some or all of the Mortgage Loans by the Purchaser to an
Agency which sale or transfer is not a Securitization Transaction or Whole
Loan
Transfer.
Agreement:
This
Second Amended and Restated Seller’s Warranties and Servicing Agreement and all
exhibits hereto, amendments hereof and supplements hereto.
ALTA:
The
American Land Title Association or any successor thereto.
Applicable
Law:
All
provisions of statutes, rules and regulations, interpretations and orders of
governmental bodies or regulatory agencies applicable to a Person, and all
orders and decrees of all courts and arbitrators in proceedings or actions
in
which the Person in question is a party.
Appraised
Value:
With
respect to any Mortgage Loan, the lesser of (i) the value set forth on the
appraisal made in connection with the origination of the related Mortgage Loan
as the value of the related Mortgage Property, or (ii) the purchase price paid
for the Mortgage Property, provided, however, in the case of a refinanced
Mortgage Loan, such value shall be based solely on the appraisal made in
connection with the refinance of such Mortgage Loan.
Assigned
Letter of Credit:
A
Letter of Credit related to a Pledged Asset Mortgage Loan for which either
(i) the Company has delivered to Purchaser or its designee a transfer
letter as authorized by the Letter of Credit and executed in blank or
(ii) the named beneficiary has been changed from the Company to the
Purchaser or its designee.
Assignment
of Mortgage
or
Assignment:
An
assignment of the Mortgage, notice of transfer or equivalent instrument in
recordable form, sufficient under the laws of the jurisdiction wherein the
related Mortgaged Property is located to reflect the sale of the Mortgage to
the
Purchaser or its designated assignee, of if the related Mortgage has been
recorded in the name of MERS or its designee, such actions as are necessary
to
cause the Purchaser to be shown as the owner of the related Mortgage on the
records of MERS for purposes of the system of recording transfers of beneficial
ownership of mortgages maintained by MERS.
-2-
Assignment
of Mortgage Note and Pledge Agreement:
With
respect to a Cooperative Loan, an assignment of the Mortgage Note and Pledge
Agreement.
Assignment
of Proprietary Lease:
With
respect to a Cooperative Loan, an assignment of the Proprietary Lease sufficient
under the laws of the jurisdiction wherein the related Cooperative Apartment
is
located to effect the assignment of such Proprietary Lease.
Business
Day:
Any day
other than (i) a Saturday or Sunday, or (ii) a day on which banking and savings
and loan institutions in the states where the parties are located are authorized
or obligated by law or executive order to be closed.
Buydown
Account:
An
account maintained by the Company specifically to hold all Buydown Funds to
be
applied to individual Buydown Loans.
Buydown
Agreement:
An
agreement between the Company and a Mortgagor, or an agreement among the
Company, a Mortgagor and a seller of a Mortgaged Property or a third party
with
respect to a Mortgage Loan which provides for the application of Buydown
Funds.
Buydown
Funds:
In
respect of any Buydown Mortgage Loan, any amount contributed by the seller
of a
Mortgaged Property subject to a Buydown Mortgage Loan, the buyer of such
property, the Company or any other source, plus interest earned thereon, in
order to enable the Mortgagor to reduce the payments required to be made from
the mortgagor’s funds in the early years of a Mortgage Loan.
Buydown
Mortgage Loan:
Any
Mortgage Loan in respect of which, pursuant to a Buydown Agreement, (i) the
Mortgagor pays less than the full monthly payments specified in the Mortgage
Note for a specified period, and (ii) the difference between the payments
required under such Buydown Agreement and the Mortgage Note is provided from
Buydown Funds.
Buydown
Period:
The
period of time when a Buydown Agreement is in effect with respect to a related
Buydown Mortgage Loan.
Closing
Date:
The
date or dates on which the Purchaser from time to time shall purchase and the
Company from time to time shall sell the Mortgage Loans listed on the related
Mortgage Loan Schedule with respect to the related Mortgage Loan
Package.
Code:
The
Internal Revenue Code of 1986, as it may be amended from time to time or any
successor statute thereto, and applicable U.S. Department of the Treasury
regulations issued pursuant thereto.
Commission:
The
United States Securities and Exchange Commission.
Company:
Xxxxx
Fargo Bank, N.A., or its successor in interest or assigns, or any successor
to
the Company under this Agreement appointed as herein provided.
Company
Certification:
The
certification delivered by the Company in a form substantially similar to
Exhibit H of this Agreement.
-3-
Company
Employees:
The
meaning assigned to such term in Section 4.13.
Company
Information:
As
defined in Section 9.01(f)(i)(A).
Condemnation
Proceeds:
All
awards or settlements in respect of a Mortgaged Property, whether permanent
or
temporary, partial or entire, by exercise of the power of eminent domain or
condemnation, to the extent not required to be released to a Mortgagor in
accordance with the terms of the related Mortgage Loan Documents.
Convertible
Mortgage Loan:
Any
individual Adjustable Rate Mortgage Loan purchased pursuant to this Agreement
which contains a provision whereby the Mortgagor is permitted to convert the
Adjustable Rate Mortgage Loan to a Fixed Rate Mortgage Loan in accordance with
the terms of the related Mortgage Note.
Cooperative:
The
entity that holds title (fee or an acceptable leasehold estate) to all of the
real property that the related Project comprises, including the land, separate
dwelling units and all common areas.
Cooperative
Apartment:
The
specific dwelling unit relating to a Cooperative Loan.
Cooperative
Lien Search:
A
search for (a) federal tax liens, mechanics’ liens, lis pendens, judgments of
record or otherwise against (i) the Cooperative, (ii) the seller of the
Cooperative Apartment and (iii) the Company, if the Cooperative Loan is a
refinanced Mortgage Loan, (b) filings of financing statements and (c) the deed
of the Project into the Cooperative.
Cooperative
Loan:
A
Mortgage Loan that is secured by Cooperative Shares and a Proprietary Lease
granting exclusive rights to occupy the related Cooperative
Apartment.
Cooperative
Shares:
The
shares of stock issued by a Cooperative, owned by the Mortgagor, and allocated
to a Cooperative Apartment.
Covered
Loan:
A
Mortgage Loan categorized as “Covered” pursuant to the Standard & Poor’s
Glossary for File Format for LEVELS® Version 5.6, Appendix E, as revised from
time to time and in effect on each related Closing Date.
Custodial
Account:
The
separate account or accounts created and maintained pursuant to Section
4.4.
Custodial
Agreement:
The
agreement governing the retention of the originals of each Mortgage Note,
Assignment of Mortgage and other Mortgage Loan Documents if applicable, a form
of which is annexed hereto as Exhibit C.
Custodial
Mortgage File:
The
items pertaining to a particular Mortgage Loan referred to in items (1), (2),
(3), (4) and (5) of Exhibit B annexed hereto, and any additional documents
required to be added to the Custodial Mortgage File pursuant to this Agreement
that have been delivered to the Custodian as of the related Closing
Date.
-4-
Custodian:
The
custodian under the Custodial Agreement, or its successor in interest or
assigns, or any successor to the Custodian under the Custodial Agreement as
provided therein.
Cut-off
Date:
The
date or dates designated as such on the related Mortgage Loan Schedule with
respect to the related Mortgage Loan Package.
Data
File:
The
electronic data file prepared by Company and delivered to the Purchaser
including the data fields set forth on Exhibit A-1 with respect to each Mortgage
Loan.
Depositor:
The
depositor, as such term is defined in Regulation AB, with respect to any
Securitization Transaction.
Determination
Date:
The day
preceding the Remittance Date, or if such day is not a Business Day, the
preceding Business Day.
Due
Date:
The
first day of the month on which the Monthly Payment is due on a Mortgage Loan,
exclusive of any days of grace.
Due
Period:
With
respect to each Remittance Date, the period commencing on the second day of
the
month preceding the month in which such Remittance Date occurs and ending on
(and including) the first day of the month in which such Remittance Date
occurs.
Errors
and Omissions Insurance Policy:
An
errors and omissions insurance policy to be maintained by the Company pursuant
to Section 4.12.
Escrow
Account:
The
separate account or accounts created and maintained pursuant to Section 4.6.
Escrow
Payments:
With
respect to any Mortgage Loan, the amounts constituting ground rents, taxes,
assessments, water rates, sewer rents, municipal charges, mortgage insurance
premiums, fire and hazard insurance premiums, condominium charges, and any
other
payments required to be escrowed by the Mortgagor with the mortgagee pursuant
to
the Mortgage or any other related document.
Event
of Default:
Any one
of the conditions or circumstances enumerated in Section 10.1.
Exchange
Act:
The
Securities Exchange Act of 1934, as amended.
Xxxxxx
Xxx:
The
Federal National Mortgage Association, or any successor thereto.
FDIC:
The
Federal Deposit Insurance Corporation, and its successors.
Fidelity
Bond:
A
fidelity bond to be maintained by the Company pursuant to Section
4.12.
-5-
First
Remittance Date:
The
date or dates designated as such on the related Mortgage Loan Schedule with
respect to the related Mortgage Loan Package.
Freddie
Mac:
The
Federal Home Loan Mortgage Corporation, or any successor thereto.
Fixed
Rate Mortgage Loan:
A fixed
rate mortgage loan purchased pursuant to this Agreement.
Gross
Margin:
With
respect to each Adjustable Rate Mortgage Loan, the fixed percentage amount
set
forth in the related Mortgage Note which amount is added to the Index in
accordance with the terms of the related Mortgage Note to determine on each
Interest Rate Adjustment Date the Mortgage Interest Rate for such Mortgage
Loan.
High
Cost Loan:
A
Mortgage Loan classified as (a) a “high cost” loan under the Home Ownership and
Equity Protection Act of 1994, (b) a “high cost home,” “threshold,” “covered,”
“high risk home,” “predatory” or similar loan under any other applicable state,
federal or local law or (c) a Mortgage Loan categorized as “High Cost” pursuant
to the Standard & Poor’s Glossary for File Format for LEVELS® Version 5.6,
Appendix E, as revised from time to time and in effect on each related Closing
Date.
Home
Loan:
A
Mortgage Loan categorized as Home Loan pursuant to Appendix E of Standard &
Poor’s Glossary.
Index:
With
respect to each Adjustable Rate Mortgage Loan, a rate per annum set forth in
the
related loan documents.
Interim
Funder:
With
respect to each MERS Designated Mortgage Loan, the Person named on the MERS®
System as the interim funder pursuant to the MERS Procedures
Manual.
Insurance
Proceeds:
Proceeds of any mortgage insurance, title policy, hazard policy or other
insurance policy covering a Mortgage Loan, if any, to the extent such proceeds
are not to be applied to the restoration of the related Mortgaged Property
or
released to the Mortgagor in accordance with the procedures that the Company
would follow in servicing mortgage loans held for its own account.
Interest
Only Mortgage Loan:
A
Mortgage Loan for which an interest-only payment feature is allowed during
the
period prior to the first Interest Rate Adjustment Date.
Interest
Rate Adjustment Date:
With
respect to each Adjustable Rate Mortgage Loan, the date specified in the related
Mortgage Note and the Mortgage Loan Schedule, on which the Mortgage Interest
Rate is adjusted.
Investor:
With
respect to each MERS Mortgage Loan, the Person named on the MERS System as
the
investor pursuant to the MERS Procedures Manual.
-6-
Lender
Paid Mortgage Insurance Policy or LPMI Policy:
A PMI
Policy for which the Company pays all premiums from its own funds, without
reimbursement therefor.
Letter
of Credit:
With
respect to a Pledged Asset Mortgage Loan, a letter of credit issued by the
Pledge Holder which may be drawn on by the Company in the event that the related
Pledged Asset Mortgage Loan continues in default for ninety
(90) days.
Lifetime
Rate Cap:
The
provision of each Mortgage Note related to an Adjustable Rate Mortgage Loan
which provides for an absolute maximum Mortgage Interest Rate thereunder. The
Mortgage Interest Rate during the terms of each Adjustable Rate Mortgage Loan
shall not at any time exceed the Mortgage Interest Rate at the time of
origination of such Adjustable Rate Mortgage Loan by more than the amount per
annum set forth on the Mortgage Loan Schedule.
Liquidation
Proceeds:
Cash
(other than Insurance Proceeds or Condemnation Proceeds) received in connection
with the liquidation of a defaulted Mortgage Loan, whether through the sale
or
assignment of such Mortgage Loan, trustee’s sale, foreclosure sale, sale of REO
Property, or otherwise, or the sale of the related Mortgaged Property if the
Mortgaged Property is acquired in satisfaction of the Mortgage
Loan.
Loan-to-Value
Ratio:
With
respect to any Mortgage Loan, the ratio of the original loan amount of the
Mortgage Loan at its origination or refinancing, as applicable, to the Appraised
Value of the Mortgaged Property.
LPMI
Proceeds:
Proceeds of any Lender Paid Mortgage Insurance Policy.
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
Procedure Manual:
The
MERS Procedures Manual, as it may be amended, supplemented or otherwise modified
from time to time.
MERS
System:
The
system of recording transfers of mortgages electronically maintained by
MERS.
MERS
Report:
The
report from the MERS System listing MERS Designated Mortgage Loans and other
information.
MIN:
The
Mortgage Identification Number for any MERS Mortgage Loan.
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
portion of each Monthly Payment that is delinquent with respect to each Mortgage
Loan at the close of business on the Determination Date required to be advanced
by the Company pursuant to Section 5.3 on the Business Day immediately preceding
the Remittance Date of the related month.
-7-
Monthly
Payment:
The
scheduled monthly payment of principal and interest, or in the case of an
Interest Only Mortgage Loan, payments of interest on a Mortgage
Loan.
Monthly
Remittance Advice:
The
meaning assigned to such term in Section 5.2.
Mortgage:
The
mortgage, deed of trust or other instrument and riders thereto securing a
Mortgage Note, which creates a first lien on an unsubordinated estate in fee
simple in real property securing the Mortgage Note, or the Pledge Agreement
securing the Mortgage Note for a Cooperative Loan.
Mortgage
Interest Rate:
The
annual rate of interest borne on a Mortgage Note in accordance with the
provisions of the 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 Retained Mortgage File, the Custodial Mortgage File, the Monthly Payments,
Principal Prepayments, Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds, REO Disposition Proceeds and all other rights, benefits, proceeds
and
obligations arising from or in connection with such Mortgage Loan.
Mortgage
Loan Documents:
With
respect to a Mortgage Loan, the original related Mortgage Note with applicable
addenda and riders, the original related security instrument and the originals
of any required addenda and riders, the original related Assignment and any
original intervening related Assignments, the original related title insurance
policy, and the related appraisal report and for each Pledged Asset Mortgage
Loan, the original advice of such Letter of Credit executed by the Pledge Holder
and the Company’s executed notice of transfer (Exhibit A to the Letter of
Credit) of beneficiary of such Letter of Credit to the Purchaser or its
designee.
Mortgage
Loan Package:
Each
pool of Mortgage Loans, which shall be purchased by the Purchaser from the
Company from time to time on each Closing Date.
Mortgage
Loan Remittance Rate:
With
respect to each Mortgage Loan, the annual rate of interest remitted to the
Purchaser, which shall be equal to the Mortgage Interest Rate minus the
Servicing Fee Rate.
Mortgage
Loan Schedule:
A
schedule of Mortgage Loans included in each Mortgage Loan Package, such schedule
setting forth the following information with respect to each Mortgage Loan:
(1)
the Company’s Mortgage Loan number; (2) the address, city, state and zip code of
the Mortgaged Property; (3) a code indicating whether the Mortgaged Property
is
a single family residence, two-family residence, three-family residence,
four-family residence, Cooperative Apartment, planned unit development; (4)
the
Gross Margin; (5) the current Mortgage Interest Rate; (6) the Servicing Fee
Rate; (7) the current Monthly Payment; (8) the original term to maturity; (9)
the scheduled maturity date (and, if different, the stated maturity date
indicated on the Mortgage Note on its date of origination); (10) the principal
balance of the Mortgage Loan as of the related Cut-off Date after deduction
of
payments of principal due on or before the related Cut-off Date whether or
not
collected; (11) the Loan-to-Value Ratio; (12) the Interest Rate Adjustment
Date;
(13) the Lifetime Rate Cap under the terms of the Mortgage Note; (14) whether
the Mortgage Loan is convertible or not; (15) a code indicating the mortgage
guaranty insurance company; and (16) a field indicating whether the Mortgage
Loan is a Home Loan.
-8-
Mortgage
Note:
The
note or other evidence of the indebtedness of a Mortgagor secured by a Mortgage
and riders thereto.
Mortgaged
Property:
The
real property (or with respect to a Cooperative Loan, the related Cooperative
Apartment) securing repayment of the debt evidenced by a Mortgage
Note.
Mortgagor:
The
obligor on a Mortgage Note.
Non-Assigned
Letter of Credit:
A
Letter of Credit in which the named beneficiary is the Company.
Officer’s
Certificate:
A
certificate signed by the Chairman of the Board, the Vice Chairman of the Board,
the President, a Vice President, an Assistant Vice President, the Treasurer,
the
Secretary or one of the Assistant Treasurers or Assistant Secretaries of the
Company, and delivered to the Purchaser as required by this
Agreement.
Opinion
of Counsel:
A
written opinion of counsel, who may be an employee of the Company, reasonably
acceptable to the Purchaser.
Periodic
Rate Cap:
The
provision of each Mortgage Note related to an Adjustable Rate Mortgage Loan
which provides for an absolute maximum amount by which the Mortgage Interest
Rate therein may increase or decrease on an Interest Rate Adjustment Date above
or below the Mortgage Interest Rate previously in effect. The Periodic Rate
Cap
for each Adjustable Rate Mortgage Loan is the rate set forth on the Mortgage
Loan Schedule.
Periodic
Rate Floor:
With
respect to each Adjustable Rate Mortgage Loan, the provision of each Mortgage
Note which provides for an absolute maximum amount by which the Mortgage
Interest Rate therein may decrease on an Interest Rate Adjustment Date below
the
Mortgage Interest Rate previously in effect. The Periodic Rate Floor for each
Adjustable Rate Mortgage Loan is the rate set forth on the Mortgage Loan
Schedule.
Person:
Any
individual, corporation, partnership, limited liability company, joint venture,
association, joint-stock company, trust, unincorporated organization, government
or any agency or political subdivision thereof.
-9-
Pledge
Agreement:
With
respect to a Cooperative Loan, the specific agreement creating a first lien
on
and pledge of the Cooperative Shares and the appurtenant Proprietary
Lease.
Pledge
Holder:
The
entity which issued a Letter of Credit.
Pledge
Instruments:
With
respect to a Cooperative Loan, the Stock Power, the Assignment of the
Proprietary Lease and the Assignment of the Mortgage Note and Pledge
Agreement.
Pledged
Asset Mortgage Loan:
A
Mortgage Loan as to which, at the time of origination, a Letter of Credit was
issued in favor of the initial holder of such Mortgage Loan.
PMI
Policy:
Each
policy of primary mortgage insurance represented to be in effect pursuant to
Section 3.2(xxxii), or any replacement policy therefor obtained by the Company
pursuant to Section 4.11.
Prime
Rate:
The
prime rate announced to be in effect from time to time, as published as the
average rate in The Wall Street Journal.
Principal
Balance:
As to
each Mortgage Loan, (i) the actual outstanding principal balance of the Mortgage
Loan at 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
attributable to principal collected from or on behalf of the Mortgagor,
including the principal portion of Liquidation Proceeds, Condemnation Proceeds,
and Insurance Proceeds.
Principal
Prepayment:
Any
payment or other recovery of principal on a Mortgage Loan which is received
in
advance of its scheduled Due Date, including any prepayment penalty or premium
thereon and which is not accompanied by an amount of interest representing
scheduled interest due on any date or dates in any month or months subsequent
to
the month of prepayment.
Principal
Prepayment Period:
With
respect to each Remittance Date, the period commencing on the first day of
the
month preceding the month in which such Remittance Date occurs, and ending
on
the last day of such month.
Project:
With
respect to a Cooperative Loan, all real property owned by the related
Cooperative including the land, separate dwelling units and all common
areas.
Proprietary
Lease:
With
respect to a Cooperative Loan, a lease on a Cooperative Apartment evidencing
the
possessory interest of the Mortgagor in such Cooperative Apartment.
Purchase
Price:
The
purchase price for a Mortgage Loan Package specified in the related Purchase
Price and Terms Letter.
Purchase
Price and Terms Letter:
Those
certain agreements setting forth the general terms and conditions of the
transaction consummated herein and identifying the Mortgage Loans to be
purchased from time to time hereunder, between the Company and the
Purchaser.
-10-
Purchaser:
Xxxxxxx
Xxxxx Mortgage Company, or its successor in interest or any successor to the
Purchaser under this Agreement as herein provided.
Qualified
Correspondent:
Any
Person from which the Company purchased Mortgage Loans, provided that the
following conditions are satisfied: (i) such Mortgage Loans were originated
pursuant to an agreement between the Company and such Person that contemplated
that such Person would underwrite mortgage loans from time to time, for sale
to
the Company, in accordance with underwriting guidelines designated by the
Company (“Designated Guidelines”) or guidelines that do not vary materially from
such Designated Guidelines; (ii) such Mortgage Loans were in fact underwritten
as described in clause (i) above and were acquired by the Company within 180
days after origination; (iii) either (x) the Designated Guidelines were, at
the
time such Mortgage Loans were originated, used by the Company in origination
of
mortgage loans of the same type as the Mortgage Loans for the Company’s own
account or (y) the Designated Guidelines were, at the time such Mortgage Loans
were underwritten, designated by the Company on a consistent basis for use
by
lenders in originating mortgage loans to be purchased by the Company; and (iv)
the Company employed, at the time such Mortgage Loans were acquired by the
Company, pre-purchased or post-purchased quality assurance procedures (which
may
involve, among other things, review of a sample of mortgage loans purchased
during a particular time period or through particular channels) designed to
ensure that Persons from which it purchased mortgage loans properly applied
the
underwriting criteria designated by the Company.
Qualification
Defect:
With
respect to a Mortgage Loan, (a) a defective document in the Retained Mortgage
File or Custodial Mortgage File, (b) the absence of a document in the Retained
Mortgage File or Custodial Mortgage File, or (c) the breach of any
representation, warranty or covenant with respect to the Mortgage Loan made
by
the Company, but, in each case, only if the affected Mortgage Loan would cease
to qualify as a “qualified mortgage” for purposes of the REMIC Provisions.
Qualified
Depository:
A
federal or state chartered depository institution, the deposits in which are
insured by the FDIC to the applicable limits and the short-term unsecured debt
obligations of which (or, in the case of a depository institution that is a
subsidiary of a holding company, the short-term unsecured debt obligations
of
such holding company) are rated A-1 by Standard & Poor’s Ratings Group and
Prime-1 by Xxxxx’x Investors Service, Inc. (or a comparable rating if another
rating agency is specified by the Purchaser by written notice to the Company)
at
the time any deposits are held on deposit therein; provided
however,
that in
the event any of the Mortgage Loans are subject to a Securitization Transaction,
the Company agrees that the holding company or other entity which maintains
any
accounts subject to this definition, shall satisfy the rating requirements
established by any Rating Agency which rates securities issued as part of the
Securitization Transaction.
Qualified
Insurer:
A
mortgage guaranty insurance company duly authorized and licensed where required
by law to transact mortgage guaranty insurance business and approved as an
insurer by Xxxxxx Xxx.
-11-
Rating
Agency:
Xxxxx’x
Investors Service, Inc., Standard & Poor’s Ratings Group, division of The
XxXxxx-Xxxx Companies, Fitch, Inc (doing business as “Fitch Ratings”), or any
other nationally recognized statistical credit rating agency rating any security
issued in connection with any Securitization Transaction.
Rating
Agency Delivery Event:
The
meaning specified in Section 9.1(h) of this Agreement.
Recognition
Agreement:
An
agreement whereby a Cooperative and a lender with respect to a Cooperative
Loan
(i) acknowledge that such lender may make, or intends to make, such Cooperative
Loan, and (ii) make certain agreements with respect to such Cooperative
Loan.
Reconstitution:
Any
Securitization Transaction or Whole Loan Transfer.
Reconstitution
Agreement:
The
agreement or agreements entered into by the Company and the Purchaser and/or
certain third parties on the Reconstitution Date or Dates with respect to any
or
all of the Mortgage Loans serviced hereunder, in connection with a Whole Loan
Transfer or Securitization Transaction.
Reconstitution
Date:
The
date on which any or all of the Mortgage Loans serviced under this Agreement
may
be removed from this Agreement and reconstituted as part of an Agency Sale,
Securitization Transaction or Whole Loan Transfer pursuant to Section 9.1
hereof. The Reconstitution Date shall be such date which the Purchaser shall
designate.
Regulation
AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
REMIC:
A “real
estate mortgage investment conduit” within the meaning of Section 860D of the
Code.
REMIC
Provisions:
Provisions of the federal income tax law relating to a REMIC, which appear
at
Section 860A through 860G of Subchapter M of Chapter 1, Subtitle A of the Code,
and related provisions, regulations, rulings or pronouncements promulgated
thereunder, as the foregoing may be in effect from time to time.
Remittance
Advice Date:
The
10th Business Day of each month.
Remittance
Date:
The
18th day (or if such 18th day is not a Business Day, the first Business Day
immediately preceding such date) of any month, beginning with the First
Remittance Date.
REO
Disposition:
The
final sale by the Company of any REO Property.
-12-
REO
Disposition Proceeds:
All
amounts received with respect to an REO Disposition pursuant to Section
4.17.
REO
Property:
A
Mortgaged Property acquired by the Company on behalf of the Purchaser through
foreclosure or by deed in lieu of foreclosure, as described in Section
4.16.
Repurchase
Price:
Unless
agreed otherwise by the Purchaser and the Company (including without limitation
as set forth in the related Purchase Price and Terms Letter), a price equal
to
(i) the Scheduled Principal Balance of the Mortgage Loan plus
(ii)
interest on such Scheduled Principal Balance at the Mortgage Loan Remittance
Rate from the date on which interest has last been paid and distributed to
the
Purchaser to the last day of the month of repurchase less
amounts
received or advanced in respect of such repurchased Mortgage Loan which are
being held in the Custodial Account for distribution in the month of repurchase,
to the extent such amounts are actually paid to the Purchaser upon the
repurchase of the related Mortgage Loan, plus
(iii)
any costs and damages, including reasonable attorneys’ fees and costs, incurred
by the trust in the applicable Securitization Transaction in connection with
any
violation by the Mortgage Loan of any predatory or abusive lending
law.
Retained
Mortgage File:
The
items pertaining to a particular Mortgage Loan referred to in items (6), (7),
(8), (9) and (10) of Exhibit B annexed hereto, and any additional documents
required to be added to the Retained Mortgage File pursuant to this Agreement,
which items are retained in the possession of the Company.
Scheduled
Principal Balance:
As to
each Mortgage Loan and as of any date of determination, (i) the principal
balance of the Mortgage Loan at 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 collected by the Company as servicer hereunder
or
advanced and distributed to the Purchaser with respect to the related Mortgage
Loan representing payments or recoveries of principal or advances made in lieu
thereof.
Securities
Act:
The
Securities Act of 1933, as amended.
Securitization
Transaction:
Any
transaction involving either (a) a sale or other transfer of some or all of
the
Mortgage Loans directly or indirectly to an issuing entity in connection with
an
issuance of publicly offered or privately placed, rated or unrated
mortgage-backed securities or (b) an issuance of publicly offered or privately
placed, rated or unrated securities, the payments on which are determined
primarily by reference to one or more portfolios of residential mortgage loans
consisting, in whole or in part, of some or all of the Mortgage
Loans.
Servicer:
As
defined in Section 9.1(g)(iii).
Servicing
Advances:
All
customary, reasonable and necessary “out of pocket” costs and expenses other
than Monthly Advances (including reasonable attorney’s fees and disbursements)
incurred in the performance by the Company of its servicing obligations,
including, but not limited to, the cost of (a) the preservation, restoration
and
protection of the Mortgaged Property, (b) any enforcement or judicial
proceedings, including foreclosures, (c) the management and liquidation of
any
REO Property and (d) compliance with the obligations under Section
4.8.
-13-
Servicing
Criteria:
The
“servicing criteria” set forth in Item 1122(d) of Regulation AB, as such may be
amended from time to time.
Servicing
Fee:
With
respect to each Mortgage Loan, the amount of the per annum fee the Purchaser
shall pay to the Company, which shall, for a period of one full month, be equal
to one-twelfth of the product of (a) the Servicing Fee Rate and (b) the unpaid
principal balance of such Mortgage Loan. Such fee shall be payable monthly,
computed on the basis of the same principal amount and same period for which
any
related interest payment on a Mortgage Loan is received. The obligation of
the
Purchaser to pay the Servicing Fee is limited to, and the Servicing Fee is
payable solely from, the interest portion (including recoveries with respect
to
interest from Liquidation Proceeds, to the extent permitted by Section 4.5)
of
such Monthly Payment collected by the Company, or as otherwise provided under
Section 4.5.
Servicing
Fee Rate:
With
respect to any Mortgage Loan, the rate per annum set forth in the related
Purchase Price and Terms Letter.
Servicing
File:
With
respect to each Mortgage Loan, the file retained by the Company consisting
of
originals of all documents in the Retained Mortgage File which are not delivered
to the Custodian and copies of the Mortgage Loan Documents listed in the
Custodial Agreement the originals of which are delivered to the Custodian
pursuant to Section 2.3.
Servicing
Officer:
Any
officer of the Company involved in or responsible for the administration and
servicing of the Mortgage Loans whose name appears on a list of servicing
officers furnished by the Company to the Purchaser upon request, as such list
may from time to time be amended.
Static
Pool Information:
Static
pool information as described in Item 1105(a)(1)-(3) and 1105(c) of Regulation
AB.
Stock
Certificate:
With
respect to a Cooperative Loan, a certificate evidencing ownership of the
Cooperative Shares issued by the Cooperative.
Stock
Power:
With
respect to a Cooperative Loan, an assignment of the Stock Certificate or an
assignment of the Cooperative Shares issued by the Cooperative.
Subcontractor:
Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of Mortgage Loans but performs one or more
discrete functions identified in Item 1122(d) of Regulation AB with respect
to
Mortgage Loans under the direction or authority of the Company or a
Subservicer.
Subservicer:
Any
Person that services Mortgage Loans on behalf of the Company or any Subservicer
and is responsible for the performance (whether directly or through Subservicers
or Subcontractors) of a substantial portion of the material servicing functions
required to be performed by the Company under this Agreement or any
Reconstitution Agreement that are identified in Item 1122(d) of Regulation
AB.
-14-
Subsidy
Account:
An
account maintained by the Company specifically to hold all Subsidy Funds to
be
applied to individual Subsidy Loans.
Subsidy
Agreement: An
agreement between the Company and a Mortgagor, or an agreement among the
Company, a Mortgagor and an employer of a Mortgagor with respect to a Mortgage
Loan which provides for the application of Subsidy Funds and pursuant to which
the monthly interest payments made by the related Mortgagor will be less than
the scheduled monthly interest payments on such Mortgage Loan, with the
resulting difference in interest payments being provided by the employer of
the
Mortgagor.
Subsidy
Funds:
With
respect to any Subsidy Loans, funds contributed by the employer of a Mortgagor
in order to reduce the payments required from the Mortgagor for a specified
period in specified amounts.
Subsidy
Loan:
Any
Mortgage Loan subject to a Subsidy Agreement. Each Subsidy Loan will be
identified as such in the related Data File.
Third-Party
Originator:
Each
Person, other than a Qualified Correspondent, that originated Mortgage Loans
acquired by the Company.
Time$aver®
Mortgage Loan:
A
Mortgage Loan which has been refinanced pursuant to a Company program that
allows a rate/term refinance of an existing Company-serviced loan with minimal
documentation.
Underwriting
Guidelines:
The
underwriting guidelines of the Company, as provided by the Company to the
Purchaser from time to time, in effect at the time of origination of the related
Mortgage Loan.
Whole
Loan Transfer:
Any
sale or transfer of some or all of the Mortgage Loans by the Purchaser to a
third party, which sale or transfer is not a Securitization Transaction or
Agency Transfer.
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS; POSSESSION OF CUSTODIAL
MORTGAGE
FILES; BOOKS AND RECORDS; DELIVERY OF DOCUMENTS
Section
2.1 Conveyance
of Mortgage Loans; Possession of Custodial Mortgage Files; Maintenance of
Retained Mortgage Files and Servicing Files.
The
Company, simultaneously with the delivery of the Mortgage Loan Schedule with
respect to the related Mortgage Loan Package to be purchased on each Closing
Date, shall execute and deliver an Assignment and Conveyance Agreement in
the
form attached hereto as Exhibit A
(the
“Assignment
and Conveyance Agreement”).
-15-
The
Company, simultaneously with the execution and delivery of each Assignment
and
Conveyance Agreement, shall sell, transfer, assign, set over and convey to
the
Purchaser, without recourse, but subject to the terms of this Agreement,
all the
right, title and interest of the Company in and to the (i) Mortgage Loans,
including all interest and principal received by the Company on or with respect
to the related Mortgage Loans after the related Cut-off Date (and including
Monthly Payments due after the related Cut-off Date but received by the Company
on or before the related Cut-off Date, but not including payments of principal
and interest due on the Mortgage Loans on or before the related Cut-off Date)
and (ii) all of the Company’s right, title and interest in and to the proceeds
of the Letters of Credit.
The
principal balance of each Mortgage Loan as of the related Cut-off Date shall
be
determined after application of payments of principal due on or before the
related Cut-off Date whether or not collected. Therefore, payments of scheduled
principal and interest prepaid for a Due Date beyond the related Cut-off
Date
shall not be applied to the principal balance as of the related Cut-off Date.
Such prepaid amounts (minus
interest
at the Servicing Fee Rate) shall be the property of the Purchaser. The Company
shall deposit any such prepaid amounts into the Custodial Account, which
account
is established for the benefit of the Purchaser for subsequent remittance
by the
Company to the Purchaser, and shall remit such amounts as provided in Section
5.1.
With
respect to each Closing Date and pursuant to Section 2.3, the Company shall
deliver the Custodial Mortgage File to the Custodian. The Retained Mortgage
File
for each Mortgage Loan shall be held in trust by the Company for the benefit
of
the Purchaser as the owner thereof. Additionally and separate to the Retained
Mortgage File, the Company shall maintain a Servicing File consisting of
a copy
of the contents of the Custodial Mortgage File and the Retained Mortgage
File.
The possession of each Retained Mortgage File by the Company shall be at
the
will of the Purchaser, and such retention and possession by the Company shall
be
in a custodial capacity only. The possession of each Servicing File by the
Company shall be at the will of the Purchaser for the sole purpose of servicing
the related Mortgage Loan, and such retention and possession by the Company
shall be in a custodial capacity only. Upon the sale of the Mortgage Loans
the
ownership of each Mortgage Note, the related Mortgage and the related Custodial
Mortgage File, Retained Mortgage File and Servicing File shall vest immediately
in the Purchaser, and the ownership of all records and documents with respect
to
the related Mortgage Loan prepared by or which come into the possession of
the
Company shall vest immediately in the Purchaser and shall be retained and
maintained by the Company, in trust, at the will of the Purchaser and only
in
such custodial capacity. The Company shall release its custody of the contents
of any Retained Mortgage File and Servicing File only in accordance with
written
instructions from the Purchaser, unless such release is required as incidental
to the Company’s servicing of the Mortgage Loans, in the case of the Servicing
File, or is in connection with a repurchase of any Mortgage Loan pursuant
to
Sections 2.3, 3.3 or 6.2.
In
addition, in connection with the assignment of any MERS Mortgage Loan, the
Company agrees that it will cause, at its own expense, the MERS® System to
indicate that such Mortgage Loans have been assigned by the Company 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. Prior to the assignment of any MERS
Mortgage Loan, the Purchaser will provide the Company with Purchaser’s MERS
registration number. The Company 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
2.2 Books
and Records; Transfers of Mortgage Loans.
From
and
after the sale of the Mortgage Loans to the Purchaser all rights arising
out of
the Mortgage Loans including but not limited to all funds received on or
in
connection with the Mortgage Loans, shall be received and held by the Company
in
trust for the benefit of the Purchaser as owner of the Mortgage Loans, and
the
Company shall retain record title to the related Mortgages for the sole purpose
of facilitating the servicing and the supervision of the servicing of the
Mortgage Loans.
The
sale
of each Mortgage Loan shall be reflected on the Company’s balance sheet and
other financial statements as a sale of assets by the Company. The Company
shall
be responsible for maintaining, and shall maintain, a complete set of books
and
records for each Mortgage Loan which shall be marked clearly to reflect the
ownership of each Mortgage Loan by the Purchaser. In particular, the Company
shall maintain in its possession, available for inspection by the Purchaser,
or
its designee, and shall deliver to the Purchaser upon demand, evidence of
compliance with all federal, state and local laws, rules and regulations,
and
requirements of Xxxxxx Xxx or Freddie Mac, including but not limited to
documentation as to the method used in determining the applicability of the
provisions of the Flood Disaster Protection Act of 1973, as amended, to the
Mortgaged Property, documentation evidencing insurance coverage and eligibility
of any condominium project for approval by Xxxxxx Xxx or Freddie Mac, and
records of periodic inspections as required by Section 4.13. To the extent
that
original documents are not required for purposes of realization of Liquidation
Proceeds or Insurance Proceeds, documents maintained by the Company may be
in
the form of microfilm or microfiche or such other reliable means of recreating
original documents, including but not limited to, optical imagery techniques
so
long as the Company complies with the requirements of the Xxxxxx Xxx or Xxxxxxx
Xxx Xxxxxxx and Servicing Guide, as amended from time to time.
The
Company shall maintain with respect to each Mortgage Loan and shall make
available for inspection by any 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 Law.
The
Company shall keep at its servicing office books and records in which, subject
to such reasonable regulations as it may prescribe, the Company shall note
transfers of Mortgage Loans. No transfer of a Mortgage Loan may be made unless
such transfer is in compliance with the terms hereof. For the purposes of
this
Agreement, the Company shall be under no obligation to deal with any Person
with
respect to this Agreement or the Mortgage Loans unless the books and records
show such Person as the owner of the Mortgage Loan. The Purchaser may, subject
to the terms of this Agreement, sell and transfer one or more of the Mortgage
Loans. The Purchaser also shall advise the Company of the transfer. Upon
receipt
of notice of the transfer, the Company shall mark its books and records to
reflect the ownership of the Mortgage Loans of such assignee, and shall release
the previous Purchaser from its obligations hereunder with respect to the
Mortgage Loans sold or transferred. Such notification of a transfer shall
include a final loan schedule which shall be received by the Company no fewer
than five (5) Business Days before the monthly Determination Date. If such
notification is not received as specified above, the Company’s duties to remit
and report to the new purchaser(s) as required by Section 5 shall begin with
the
first Determination Date after the Reconstitution Date.
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Section
2.3 Delivery
of Documents
Pursuant
to the Custodial Agreement delivered to the Purchaser prior to or
contemporaneously with the delivery of this Agreement, the Company shall
deliver
and release to the Custodian those Mortgage Loan Documents as required by
the
Custodial Agreement and by this Agreement with respect to each Mortgage
Loan.
The
Custodian shall certify its receipt of all such Mortgage Loan Documents required
to be delivered pursuant to the Custodial Agreement. The Company will be
responsible for the Custodian’s fees and expenses with respect to the delivery
and certification of those Mortgage Loan Documents required to be delivered
pursuant to the Custodial Agreement. The Company will be responsible for
the
fees and expenses related to the recording of the initial Assignments of
Mortgage (including any fees and expenses related to any preparation and
recording of any intervening or prior assignments of the Mortgage Loans to
the
Company or to any prior owners of or mortgagees with respect to the Mortgage
Loans). The Purchaser will be responsible for the Custodian’s fees and expenses
with respect to the initial inventory and maintenance of the Mortgage Loans
on
or after the related Closing Date, including the costs associated with clearing
exceptions.
Within
180 days after the related Closing Date, the Company shall deliver to the
Custodian each of the documents described in Exhibit B not delivered pursuant
to
the Agreement. Upon the occurrence of the events described in Section 9.1(h),
Section 11.2 or Section 11.3 of this Agreement or in the event the Company
fails
to allow the Purchaser access to the Retained Mortgage File as required pursuant
to Section 2.5 (each such occurrence, a “Delivery Event”), the Company shall
deliver to the Custodian the additional documents required to be delivered
pursuant to the Custodial Agreement within the time period specified therein.
All of the provisions of this Section 2.3 relating to a failure to deliver
required documentation, delays in such delivery and the delivery of defective
documentation shall apply equally to any obligation on the part of the Company
to deliver documents which arises after the related Closing Date upon the
occurrence of a Delivery Event.
The
Company shall pay all initial recording fees for the Assignments of Mortgage
and
any other fees in connection with the transfer of all original documents
to the
Purchaser or its designee. The Company shall prepare, in recordable form,
all
Assignments of Mortgage necessary to assign the Mortgage Loans to the Purchaser,
or its designee. The Company shall be responsible for recording the Assignments
of Mortgage.
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The
Company shall forward to the Custodian original documents evidencing an
assumption, modification, consolidation or extension of any Mortgage Loan
entered into in accordance with Section 4.1 or 6.1 within one week of their
execution, provided,
however,
that
the Company shall provide the Custodian with a certified true copy of any
such
document submitted for recordation within ten (10) days of its execution,
and
shall provide the original of any document submitted for recordation or a
copy
of such document certified by the appropriate public recording office to
be a
true and complete copy of the original within 60 days of its submission for
recordation.
In
the
event the public recording office is delayed in returning any original document,
which the Company is required to deliver at any time to the Custodian in
accordance with the terms of the Custodial Agreement or which the Company
is
required to maintain in the Retained Mortgage File, the Company shall deliver
to
the Custodian or to the Retained Mortgage File, as applicable, within 240
days
of its submission for recordation, a copy of such document and an Officer’s
Certificate, which shall (i) identify the recorded document; (ii) state that
the
recorded document has not been delivered to the Custodian due solely to a
delay
by the public recording office, (iii) state the amount of time generally
required by the applicable recording office to record and return a document
submitted for recordation, and (iv) specify the date the applicable recorded
document will be delivered to the Custodian. The Company will be required
to
deliver the document to the Custodian by the date specified in (iv) above.
An
extension of the date specified in (iv) above may be requested from the
Purchaser, which consent shall not be unreasonably withheld.
Notwithstanding
the foregoing, if the originals or certified copies required in this Section
2.3
are not delivered as required within 180 days following the related Closing
Date
or as otherwise extended as set forth above, or within the designated time
period, following any date subsequent to the related Closing Date as of which
the Company becomes obligated to deliver additional documents from its Retained
Mortgage File pursuant to the Custodial Agreement, the related Mortgage Loan
shall, upon request of the Purchaser, be repurchased by the Company in
accordance with Section 3.3 hereof; provided,
however,
that
the foregoing repurchase obligation shall not apply in the event the Company
cannot deliver such items due to a delay caused by the recording office in
the
applicable jurisdiction; provided
that the
Company shall deliver instead a recording receipt of such recording office
or,
if such recording receipt is not available, an Officer’s Certificate from the
Company confirming that such documents have been accepted for recording.
Any
such document shall be delivered to the Purchaser or its designee promptly
upon
receipt thereof from the related recording office.
If
the
Company, the Purchaser or the Custodian finds any document or documents
constituting a part of a Retained Mortgage File or the Custodial Mortgage
File
pertaining to a Mortgage Loan to be defective (or missing) in any material
respect (regardless of whether the Company was required to deliver such
document(s) to the Custodian pursuant to this Agreement or whether such
document(s) were to remain in the possession of the Company), and such defect
or
missing document materially and adversely affects the value of the related
Mortgage Loan or the interests of the Purchaser therein, the party discovering
such defect shall promptly so notify the Company. The Company shall have
a
period of 90 days after receipt of such written notice within which to correct
or cure any such defect. The Company hereby covenants and agrees that, if
any
material defect cannot be corrected or cured, the Company will, upon the
expiration of the applicable cure period described above, repurchase the
related
Mortgage Loan in the manner set forth in Section 3.3; provided,
however,
that
with respect to any Mortgage Loan, if such defect constitutes a Qualification
Defect, any such repurchase must take place within 75 days of the date such
defect is discovered.
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Notwithstanding
the foregoing, with respect to a Mortgage Loan, if, at the end of such 90-day
period, the Company delivers an Officer’s Certificate to the Purchaser
certifying that the Company is using good faith efforts to correct or cure
such
defect and identifying progress made, then the Purchaser shall grant the
Company
an extension to correct or cure such defect. The extension shall not extend
beyond (1) the date that is 75 days after the date the defect is discovered,
or,
(2) if the defect is not a Qualification Defect (as evidenced by an Opinion
of
Counsel), the date that is 30 days beyond the original 90-day cure period.
If
the defect is not a Qualification Defect, additional 30-day extensions may
be
obtained pursuant to the same procedure, as long as the Company demonstrates
continued progress toward a correction or cure; provided
that no
extension shall be granted beyond 180 days from the date on which the Company
received the original notice of the defect.
Notwithstanding
the foregoing, with respect to a Mortgage Loan, the failure of the Purchaser
to
notify the Company of any defective or missing document in either the Retained
Mortgage File or Custodial Mortgage File within such 90-day period, or the
failure of the Purchaser to require the Company to cure or repurchase the
related Mortgage Loan upon expiration of such 90-day period, shall not
constitute a waiver of its rights hereunder, including the rights with respect
to a Mortgage Loan, to require the Company to repurchase the affected Mortgage
Loan and the right to indemnification pursuant to Section 3.3
hereof.
In
the
event that new, replacement, substitute or additional Stock Certificates
are
issued with respect to existing Cooperative Shares, the Company immediately
shall deliver to the Custodian the new Stock Certificates, together with
the
related Stock Powers in blank. Such new Stock Certificates shall be subject
to
the related Pledge Instruments and shall be subject to all of the terms,
covenants and conditions of this Agreement.
Section
2.4 Mortgage
Schedule.
The
Company shall provide the Purchaser with certain information constituting
a
listing of the Mortgage Loans, in each Mortgage Loan Package, to be purchased
under this Agreement (the “Mortgage Loan Schedule”). The Mortgage Loan Schedule
shall conform to the definition of “Mortgage Loan Schedule”
hereunder.
Section
2.5 Examination
of Custodial Mortgage Files.
Prior
to
the related Closing Date, the Company shall (a) deliver to the Purchaser
in
escrow, for examination, the Custodial Mortgage File for each Mortgage Loan,
including a copy of the Assignment of Mortgage, pertaining to each Mortgage
Loan, or (b) make the Custodial Mortgage Files available to the Purchaser
for
examination at the Company’s offices or such other location as shall otherwise
be agreed upon by the Purchaser and the Company. Such examination may be
made by
the Purchaser at any time (which is reasonably acceptable to the Purchaser
and
Company) before or after the related Closing Date or by any prospective
purchaser of the Mortgage Loans from the Purchaser, at any time after the
Closing Date upon prior reasonable notice to the Company. The fact that the
Purchaser or any prospective purchaser of the Mortgage Loans has conducted
or
has failed to conduct any partial or complete examination of the Custodial
Mortgage Files shall not affect the Purchaser’s (or any of its successor’s)
rights to demand repurchase, substitution or other relief as provided under
this
Agreement.
-20-
The
Company shall make the Retained Mortgage Files available to the Purchaser
for
examination at the Company’s offices or such other location as shall otherwise
be agreed upon by the Purchaser and the Company. Such examination may be
made by
the Purchaser or by any prospective purchaser of the Mortgage Loans from
the
Purchaser, at any time before or after the related Closing Date upon prior
reasonable notice to the Company. The fact that the Purchaser or any prospective
purchaser of the Mortgage Loans has conducted or has failed to conduct any
partial or complete examination of the Retained Mortgage Files shall not
affect
the Purchaser’s (or any of its successor’s) rights to demand repurchase,
substitution or other relief as provided under this Agreement.
Section
2.6 Representations,
Warranties and Agreements of the Company.
The
Company agrees and acknowledges that it shall, as a condition to the
consummation of the transactions contemplated hereby, make the representations
and warranties specified in Sections 3.1 and 3.2 as of the related Closing
Date.
The Company, without conceding that the Mortgage Loans are securities, hereby
makes the following additional representations, warranties and agreements
which
shall be deemed to have been made as of the related Closing Date: Neither
the
Company nor anyone acting on its behalf has offered, transferred, pledged,
sold
or otherwise disposed of any Mortgage Loans, any interest in any Mortgage
Loans
or any other similar security to, or solicited any offer to buy or accept
a
transfer, pledge or other disposition of any Mortgage Loans, any interest
in any
Mortgage Loans or any other similar security from, or otherwise approached
or
negotiated with respect to any Mortgage Loans, any interest in any Mortgage
Loans or any other similar security with, any person in any manner, or made
any
general solicitation by means of general advertising or in any other manner,
or
taken any other action which would constitute a distribution of the Mortgage
Loans under the Securities Act or which would render the disposition of any
Mortgage Loans a violation of Section 5 of the Securities Act or require
registration pursuant thereto, nor will it act, nor has it authorized or
will it
authorize any person to act, in such manner with respect to the Mortgage
Loans.
Section
2.7 Representation,
Warranties and Agreement of Purchaser.
The
Purchaser, without conceding that the Mortgage Loans are securities, hereby
makes the following representations, warranties and agreements, which shall
have
been deemed to have been made as of the related Closing Date.
(i) the
Purchaser understands that the Mortgage Loans have not been registered under
the
Securities Act or the securities laws of any state;
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(ii) the
Purchaser is acquiring the Mortgage Loans for its own account only and not
for
any other person; and
(iii) the
Purchaser considers itself a substantial, sophisticated institutional investor
having such knowledge and experience in financial and business matters that
it
is capable of evaluating the merits and risks of investment in the Mortgage
Loans.
Section
2.8 Closing.
The
closing for the purchase and sale of the Mortgage Loans shall take place
on the
related Closing Date. At the Purchaser’s option, each Closing shall be either:
by telephone, confirmed by letter or wire as the parties shall agree; or
conducted in person, at such place as the parties shall agree.
The
closing shall be subject to each of the following conditions:
(i) all
of
the representations and warranties of the Company under this Agreement shall
be
true and correct as of the related Closing Date and no event shall have occurred
which, with notice or the passage of time, would constitute a default under
this
Agreement;
(ii) the
Purchaser shall have received, or the Purchaser’s attorneys shall have received
in escrow, all Closing Documents as specified in Section 2.9 of this Agreement,
in such forms as are agreed upon and acceptable to the Purchaser, duly executed
by all signatories other than the Purchaser as required pursuant to the
respective terms thereof;
(iii) the
Company shall have delivered and released to the Custodian all documents
required pursuant to this Agreement and the Custodial Agreement;
and
(iv) all
other
terms and conditions of this Agreement shall have been complied
with.
Subject
to the foregoing conditions, the Purchaser shall pay to the Company on the
related Closing Date the Purchase Price by wire transfer of immediately
available funds to the account designated by the Company.
Section
2.9 Closing
Documents.
The
Closing Documents for the Mortgage Loans to be purchased on each Closing
Date
shall consist of fully executed originals of the following
documents:
(i) this
Agreement (to be executed and delivered only for the initial Closing
Date);
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(ii) with
respect to the initial Closing Date, the Custodial Agreement, dated as of
the
initial Cut-off Date;
(iii) the
related Mortgage Loan Schedule, segregated by Mortgage Loan Package, to be
attached to the related Assignment and Conveyance as the Mortgage Loan Schedule
thereto;
(iv) a
Custodian’s Certification, as required under the Custodial
Agreement;
(v) an
officer’s certificate of the Company substantially in the form of Exhibit F
attached hereto (with respect to the initial Closing Date);
(vi) an
Opinion of Counsel of the Company, in the form of Exhibit D hereto (with
respect
to the initial Closing Date); and
(vii) Assignment
and Conveyance Agreement in the form of Exhibit A
hereto.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES REMEDIES AND BREACH
Section
3.1 Company
Representations and Warranties.
The
Company hereby represents and warrants to the Purchaser that, as of the
related
Closing Date:
(i) Due
Organization and Authority. The Company is a national banking association
duly
organized, validly existing and in good standing under the laws of the
United
States and has all licenses necessary to carry on its business as now being
conducted and is licensed, qualified and in good standing in each state
where a
Mortgaged Property is located if the laws of such state require licensing
or
qualification in order to conduct business of the type conducted by the
Company,
and in any event the Company is in compliance with the laws of any such
state to
the extent necessary to ensure the enforceability of the related Mortgage
Loan
and the servicing of such Mortgage Loan in accordance with the terms of
this
Agreement; the Company has the full power and authority to execute and
deliver
this Agreement and to perform in accordance herewith; the execution, delivery
and performance of this Agreement (including all instruments of transfer
to be
delivered pursuant to this Agreement) by the Company and the consummation
of the
transactions contemplated hereby have been duly and validly authorized;
this
Agreement evidences the valid, binding and enforceable obligation of the
Company; and all requisite action has been taken by the Company to make
this
Agreement valid and binding upon the Company in accordance with its
terms;
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(ii) Ordinary
Course of Business. The consummation of the transactions contemplated by
this
Agreement are in the ordinary course of business of the Company, which
is in the
business of selling and servicing loans, and the transfer, assignment and
conveyance of the Mortgage Notes and the Mortgages by the Company pursuant
to
this Agreement are not subject to the bulk transfer or any similar statutory
provisions in effect in any applicable jurisdiction;
(iii) No
Conflicts. Neither the execution and delivery of this Agreement, the acquisition
of the Mortgage Loans by the Company, the sale of the Mortgage Loans to
the
Purchaser or the transactions contemplated hereby, nor the fulfillment
of or
compliance with the terms and conditions of this Agreement will conflict
with or
result in a breach of any of the terms, articles of incorporation or by-laws
or
any legal restriction or any agreement or instrument to which the Company
is now
a party or by which it is bound, or constitute a default or result in the
violation of any law, rule, regulation, order, judgment or decree to which
the
Company or its property is subject, or impair the ability of the Purchaser
to
realize on the Mortgage Loans, or impair the value of the Mortgage
Loans;
(iv) Ability
to Service. The Company is an approved seller/servicer of residential mortgage
loans for Xxxxxx Xxx and Freddie Mac, with the facilities, procedures,
and
experienced personnel necessary for the sound servicing of mortgage loans
of the
same type as the Mortgage Loans. The Company is a HUD approved mortgagee
pursuant to Section 203 of the National Housing Act and is in good standing
to
sell mortgage loans to and service mortgage loans for Xxxxxx Xxx and Freddie
Mac, and no event has occurred, including but not limited to a change in
insurance coverage, which would make the Company unable to comply with
Xxxxxx
Xxx or Xxxxxxx Mac eligibility requirements or which would require notification
to Xxxxxx Xxx or Freddie Mac;
(v) Reasonable
Servicing Fee. The Company acknowledges and agrees that the Servicing Fee
represents reasonable compensation for performing such services and that
the
entire Servicing Fee shall be treated by the Company, for accounting and
tax
purposes, as compensation for the servicing and administration of the Mortgage
Loans pursuant to this Agreement;
(vi) Ability
to Perform. The Company does not believe, nor does it have any reason or
cause
to believe, that it cannot perform each and every covenant contained in
this
Agreement. The Company is solvent and the sale of the Mortgage Loans will
not
cause the Company to become insolvent. The sale of the Mortgage Loans is
not
undertaken to hinder, delay or defraud any of the Company’s
creditors;
(vii) No
Litigation Pending. There is no action, suit, proceeding or investigation
pending or threatened against the Company which, either in any one instance
or
in the aggregate, may result in any material adverse change in the business,
operations, financial condition, properties or assets of the Company, or
in any
material impairment of the right or ability of the Company to carry on
its
business substantially as now conducted, or in any material liability on
the
part of the Company, or which would draw into question the validity of
this
Agreement or the Mortgage Loans or of any action taken or to be contemplated
herein, or which would be likely to impair materially the ability of the
Company
to perform under the terms of this Agreement;
-24-
(viii) Selection
Process. The Mortgage Loans were selected from among the outstanding adjustable
rate and fixed rate one to four family mortgage loans in the Company’s mortgage
banking portfolio at the related Closing Date as to which the representations
and warranties in Section 3.2 could be made and such selection was not
made in a
manner so as to affect adversely the interests of the Purchaser.
(ix) No
Consent Required. No consent, approval, authorization or order of any court
or
governmental agency or body is required for the execution, delivery and
performance by the Company of or compliance by the Company with this Agreement
or the sale of the Mortgage Loans as evidenced by the consummation of the
transactions contemplated by this Agreement, or if required, such approval
has
been obtained prior to the related Closing Date;
(x) No
Untrue
Information. Neither this Agreement nor any statement, report or other
document
furnished or to be furnished pursuant to this Agreement or in connection
with
the transactions contemplated hereby contains any untrue statement of fact
or
omits to state a fact necessary to make the statements contained therein
not
misleading;
(xi) Sale
Treatment. The Company has determined that the disposition of the Mortgage
Loans
pursuant to this Agreement will be afforded sale treatment for accounting
and
tax purposes;
(xii) No
Material Change. There has been no material adverse change in the business,
operations, financial condition or assets of the Company since the date
of the
Company’s most recent financial statements;
(xiii) No
Brokers’ Fees. The Company has not dealt with any broker, investment banker,
agent or other Person that may be entitled to any commission or compensation
in
the connection with the sale of the Mortgage Loans; and
(xiv) MERS
Status. The Company is a member of MERS in good standing.
Section
3.2 Representations
and Warranties Regarding Individual Mortgage Loans.
As
to
each Mortgage Loan, the Company hereby represents and warrants to the Purchaser
that as of the related Closing Date:
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(i) Mortgage
Loans as Described. The information set forth in the Mortgage Loan Schedule
and
the information contained on the electronic Data File is true and
correct;
(ii) Payment
History. All payments required to be made up to the Cutoff Date for each
Mortgage Loan under the terms of the Mortgage Note have been made and credited.
No payment under any Mortgage Loan has been 30 days delinquent more than
one
time within twelve months prior to the related Closing Date;
(iii) No
Outstanding Charges. There are no defaults by the Company in complying
with the
terms of the Mortgage Note or Mortgage, and all taxes, governmental assessments,
insurance premiums, leasehold payments, water, sewer and municipal charges,
which previously became due and owing have been paid, or an escrow of funds
has
been established for every such item which remains unpaid and which has
been
assessed but is not yet due and payable. The Company has not advanced funds,
or
induced or solicited directly or indirectly, the payment of any amount
required
under the Mortgage Loan, except for interest accruing from the date of
the
Mortgage Note or date of disbursement of the Mortgage Loan proceeds, whichever
is later, to the day which precedes by one month the Due Date of the first
installment of principal and interest;
(iv) Original
Terms Unmodified. The terms of the Mortgage Note and Mortgage have not
been
impaired, waived, altered or modified in any respect, except by a written
instrument which has been recorded, if necessary, to protect the interests
of
the Purchaser and the related Mortgage Note has been delivered to the Purchaser
or its designee. The substance of any such waiver, alteration or modification
has been approved by the mortgage insurer, if the Mortgage Loan is insured,
the
title insurer, to the extent required by the policy, and its terms are
reflected
on the Mortgage Loan Schedule. No Mortgagor has been released, in whole
or in
part. No Mortgage Loan has been modified so as to restructure the payment
obligations or re-age the Mortgage Loan;
(v) No
Defenses. The Mortgage Loan is not subject to any right of rescission,
set-off,
counterclaim or defense, including without limitation the defense of usury,
nor
will the operation of any of the terms of the Mortgage Note or the Mortgage,
or
the exercise of any right thereunder, render either the Mortgage Note or
the
Mortgage unenforceable, in whole or in part, or subject to any right of
rescission, set-off, counterclaim or defense, including without limitation
the
defense of usury, and no such right of rescission, set-off, counterclaim
or
defense has been asserted with respect thereto;
(vi) No
Satisfaction of Mortgage. The Mortgage has not been satisfied, canceled,
subordinated or rescinded, in whole or in part, and the Mortgaged Property
has
not been released from the lien of the Mortgage, in whole or in part, nor
has
any instrument been executed that would effect any such satisfaction, release,
cancellation, subordination or rescission;
-26-
(vii) Validity
of Mortgage Documents. The Mortgage Note and the Mortgage and any other
agreement executed and delivered by a Mortgagor in connection with a Mortgage
Loan are genuine, and each is the legal, valid and binding obligation of
the
maker thereof enforceable in accordance with its terms (including, without
limitation, any provisions therein relating to prepayment charges). All
parties
to the Mortgage Note and the Mortgage had legal capacity to enter into
the
Mortgage Loan and to execute and deliver the Mortgage Note and the Mortgage,
and
the Mortgage Note and the Mortgage have been duly and properly executed
by such
parties.
With
respect to each Cooperative Loan, the Mortgage Note, the Mortgage, the
Pledge
Agreement, and related documents are genuine, and each is the legal, valid
and
binding obligation of the maker thereof enforceable in accordance with
its
terms. All parties to the Mortgage Note, the Mortgage, the Pledge Agreement,
the
Proprietary Lease, the Stock Power, Recognition Agreement and the Assignment
of
Proprietary Lease had legal capacity to enter into the Mortgage Loan and
to
execute and deliver such documents, and such documents have been duly and
properly executed by such parties;
(viii) No
Fraud.
No error, omission, misrepresentation, negligence, fraud or similar occurrence
with respect to a Mortgage Loan has taken place on the part of the Company,
the
Mortgagor, or, to the best of the Company’s knowledge, any appraiser, any
builder, or any developer, or any other party involved in the origination
of the
Mortgage Loan or in the application of any insurance in relation to such
Mortgage Loan;
(ix) Compliance
with Applicable Laws. Any and all requirements of any federal, state or
local
law including, without limitation, usury, truth-in-lending, real estate
settlement procedures, consumer credit protection, equal credit opportunity,
predatory and abusive lending or disclosure laws applicable to the Mortgage
Loan, including, without limitation, any provisions relating to prepayment
charges, have been complied with, the consummation of the transactions
contemplated hereby will not involve the violation of any such laws or
regulations, and the Company shall maintain in its possession, available
for the
Purchaser’s inspection, and shall deliver to the Purchaser upon demand, evidence
of compliance with all such requirements. 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;
(x) Location
and Type of Mortgaged Property. The Mortgaged Property is located in the
state
identified in the related Mortgage Loan Schedule and consists of a single
parcel
(or more than one contiguous parcels) of real property with a detached
single
family residence erected thereon, or a two- to four-family dwelling, or
an
individual condominium unit in a condominium project or a Cooperative Apartment,
or an individual unit in a planned unit development or a townhouse. If
the
Mortgaged Property is a condominium unit or a planned unit development
(other
than a de minimis planned unit development), such condominium, or planned
unit
development project meets the Company’s eligibility requirements as set forth in
the Company’s underwriting guidelines. With respect to any Mortgage Loan secured
by a Mortgaged Property improved by manufactured housing, (i) the related
manufactured housing unit is permanently affixed to the land, (ii) the
related manufactured housing unit and the related land are subject to a
Mortgage
properly filed in the appropriate public recording office and naming the
Seller
as mortgagee (iii) the related Mortgaged Property is not located in the
state of
New Jersey and (iv) such manufactured dwelling conforms the Underwriting
Guidelines regarding such dwellings. As of the related appraisal date for
each
Mortgaged Property, no portion of any Mortgaged Property has been used
for
commercial purposes outside of the Company’s underwriting guidelines;
-27-
(xi) Valid
First Lien. The Mortgage is a valid, subsisting and enforceable first lien
on
the Mortgaged Property, including all buildings on the Mortgaged Property
and
all installations and mechanical, electrical, plumbing, heating and air
conditioning systems located in or annexed to such buildings, and all additions,
alterations and replacements made at any time with respect to the foregoing.
The
lien of the Mortgage is subject only to:
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(a)
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the
lien of current real property taxes and assessments not yet due
and
payable;
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(b)
|
covenants,
conditions and restrictions, rights of way, easements and other
matters of
the public record as of the date of recording acceptable to mortgage
lending institutions generally and specifically referred to in
the
lender’s title insurance policy or attorney’s title opinion delivered to
the originator of the Mortgage Loan and (i) referred to or otherwise
considered in the appraisal made for the originator of the Mortgage
Loan
and (ii) which do not adversely affect the Appraised Value of
the
Mortgaged Property set forth in such appraisal;
and
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(c)
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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;
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Any
security agreement, chattel mortgage or equivalent document related to
and
delivered in connection with the Mortgage Loan establishes and creates
a valid,
subsisting and enforceable first lien and first priority security interest
on
the property described therein and the Company has full right to sell and
assign
the same to the Purchaser;
With
respect to each Cooperative Loan, each Pledge Agreement creates a valid,
enforceable and subsisting first security interest in the Cooperative Shares
and
Proprietary Lease, subject only to (i) the lien of the related Cooperative
for
unpaid assessments representing the Mortgagor’s pro rata share of the
Cooperative’s payments for its blanket mortgage, current and future real
property taxes, insurance premiums, maintenance fees and other assessments
to
which like collateral is commonly subject and (ii) other matters to which
like
collateral is commonly subject which do not materially interfere with the
benefits of the security intended to be provided by the Pledge Agreement;
provided, however, that the appurtenant Proprietary Lease may be subordinated
or
otherwise subject to the lien of any mortgage on the Project;
-28-
(xii) Full
Disbursement of Proceeds. The proceeds of the Mortgage Loan have been fully
disbursed, except for escrows established or created due to seasonal weather
conditions, and there is no requirement for future advances thereunder.
All
costs, fees and expenses incurred in making or closing the Mortgage Loan
and the
recording of the Mortgage were paid, and the Mortgagor is not entitled
to any
refund of any amounts paid or due under the Mortgage Note or
Mortgage;
(xiii) Ownership.
The Company is the sole owner of record and holder of the Mortgage Loan
and the
related Mortgage Note and the Mortgage are not assigned or pledged, and
the
Company has good and marketable title thereto and has full right and authority
to transfer and sell the Mortgage Loan to the Purchaser. The Company is
transferring the Mortgage Loan free and clear of any and all encumbrances,
liens, pledges, equities, participation interests, claims, charges or security
interests of any nature encumbering such Mortgage Loan;
(xiv) Origination/Doing
Business. The Mortgage Loan was originated by a savings and loan association,
a
savings bank, a commercial bank, a credit union, an insurance company,
or
similar institution which is supervised and examined by a federal or state
authority or by a mortgagee approved by the Secretary of Housing and Urban
Development pursuant to Sections 203 and 211 or the National Housing Act.
All
parties which have had any interest in the Mortgage Loan, whether as mortgagee,
assignee, pledgee or otherwise, are (or, during the period in which they
held
and disposed of such interest, were) (1) in compliance with any and all
applicable licensing requirements of the laws of the state wherein the
Mortgaged
Property is located, and any qualification requirements of Xxxxxx Xxx or
Freddie
Mac, and (2) organized under the laws of such state, or (3) qualified to
do
business in such state, or (4) federal savings and loan associations or
national
banks having principal offices in such state, or (5) not doing business
in such
state;
(xv) Title
Insurance. The Mortgage Loan is covered by an ALTA lender’s title insurance
policy or other generally acceptable form of policy of insurance acceptable
to
Xxxxxx Xxx or Freddie Mac, issued by a title insurer acceptable to Xxxxxx
Xxx or
Freddie Mac and qualified to do business in the jurisdiction where the
Mortgaged
Property is located, insuring the Company, its successors and assigns,
as to the
first priority lien of the Mortgage in the original principal amount of
the
Mortgage Loan, subject only to the exceptions contained in clauses (a),
(b) and
(c) of paragraph (xi) of this Section 3.2, and against any loss by reason
of the
invalidity or unenforceability of the lien resulting from the provisions
of the
Mortgage providing for adjustment to the Mortgage Interest Rate and Monthly
Payment; provided,
however,
that in
the case of any Mortgage Loan secured by a Mortgaged Property located in
a
jurisdiction where such policies are generally not available, the Mortgage
Loan
is the subject of an opinion of counsel of the type customarily rendered
in such
jurisdiction in lieu of title insurance. The Company is the sole insured
of such
lender’s title insurance policy, and such lender’s title insurance policy is in
full force and effect and will be in force and effect upon the consummation
of
the transactions contemplated by this Agreement. No claims have been made
under
such lender’s title insurance policy, and no prior holder of the Mortgage,
including the Company, has done, by act or omission, anything which would
impair
the coverage of such lender’s title insurance policy;
-29-
(xvi) No
Mechanics’ Liens. There are no mechanics’ or similar liens or claims which have
been filed for work, labor or material (and no rights are outstanding that
under
the law could give rise to such liens) affecting the related Mortgaged
Property
which are or may be liens prior to, or equal or coordinate with, the lien
of the
related Mortgage which are not insured against by the title insurance policy
referenced in clause (xv) above;
(xvii) Location
of Improvements; No Encroachments. Except as insured against by the title
insurance policy referenced in clause (xv) above, all improvements which
were
considered in determining the Appraised Value of the Mortgaged Property
lay
wholly within the boundaries and building restriction lines of the Mortgaged
Property and no improvements on adjoining properties encroach upon the
Mortgaged
Property. No improvement located on or being part of the Mortgaged Property
is
in violation of any applicable zoning law or regulation;
(xviii) Customary
Provisions. The Mortgage and the related Mortgage Note contain customary
and
enforceable provisions such as to render the rights and remedies of the
holder
thereof adequate for the realization against the Mortgaged Property of
the
benefits of the security provided thereby, including, (i) in the case of
a
Mortgage designated as a deed of trust, by trustee’s sale, and (ii) otherwise by
judicial foreclosure. There is no homestead or other exemption available
to a
Mortgagor which would interfere with the right to sell the Mortgaged Property
at
a trustee’s sale or the right to foreclose the Mortgage;
(xix) Occupancy
of the Mortgaged Property. As of the date of origination, the Mortgaged
Property
was lawfully occupied under Applicable Law;
(xx) No
Additional Collateral. Except in the case of a Pledged Asset Mortgage Loan
and
as indicated on the related Data File, the Mortgage Note is not and has
not been
secured by any collateral, pledged account or other security except the
lien of
the corresponding Mortgage and the security interest of any applicable
security
agreement or chattel mortgage referred to in (xi) above;
-30-
(xxi) Deeds
of
Trust. In the event that the Mortgage constitutes a deed of trust, a trustee,
duly qualified under Applicable Law to serve as such, has been properly
designated and currently so serves and is named in the Mortgage, and no
fees or
expenses are or will become payable by the Mortgagee to the trustee under
the
deed of trust, except in connection with a trustee’s sale after default by the
Mortgagor;
(xxii) Transfer
of Mortgage Loans. As to any Mortgage Loan which is not a MERS Mortgage
Loan,
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;
(xxiii) Mortgaged
Property Undamaged. The Mortgaged Property is undamaged by waste, water,
fire,
earthquake or earth movement, windstorm, flood, hurricane, 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;
(xxiv) Collection
Practices; Escrow Deposits. The origination and collection practices used
with
respect to the Mortgage Loan have been in accordance with Acceptable Servicing
Practices, and have been in all material respects legal and proper, and
in
accordance with the terms of the Mortgage Note and Mortgage. All Escrow
Payments
have been collected in full compliance with state and federal law. An escrow
of
funds is not prohibited by Applicable Law and has been established to pay
for
every item that remains unpaid and has been assessed but is not yet due
and
payable. No escrow deposits or Escrow Payments or other charges or payments
due
the Company have been capitalized under the Mortgage Note. All Mortgage
Interest
Rate adjustments have been made in compliance with state and federal law
and the
terms of the related Mortgage and Mortgage Note on the related Interest
Rate
Adjustment Date;
(xxv) No
Condemnation. To the best of Company’s knowledge, there is no proceeding pending
or threatened for the total or partial condemnation of the related Mortgaged
Property;
(xxvi) The
Appraisal. The Mortgage Loan Documents contain an appraisal of the related
Mortgaged Property, As to each Time$aver® Mortgage Loan, the appraisal may be
from the original of the existing Company-serviced loan, which was refinanced
via such Time$aver® Mortgage Loan. The appraisal was conducted by an appraiser
who had no interest, direct or indirect, in the Mortgaged Property or in
any
loan made on the security thereof; and whose compensation is not affected
by the
approval or disapproval of the Mortgage Loan, and the appraisal and the
appraiser both satisfy the applicable requirements of Xxxxxx Xxx or Freddie
Mac;
-31-
(xxvii) Insurance.
The Mortgaged Property securing each Mortgage Loan is insured by an insurer
acceptable to Xxxxxx Xxx or Freddie Mac against loss by fire, such hazards
as
are covered under a standard extended coverage endorsement and such other
hazards as are customary in the area where the Mortgaged Property is located
pursuant to insurance policies conforming to the requirements of Section
4.10,
in an amount which is at least equal the lesser of (a) 100% of the insurable
value, on a replacement cost basis, of the improvements on the related
Mortgaged
Property and (b) the greater of (i) the outstanding principal balance of
the
Mortgage Loan or (ii) an amount such that the proceeds of such insurance
shall
be sufficient to prevent the application to the Mortgagor or the loss payee
of
any coinsurance clause under the policy. If the Mortgaged Property is a
condominium unit, it is included under the coverage afforded by a blanket
policy
for the project; the insurance policy contains a standard clause naming
the
originator of such mortgage loan, its successor and assigns, as insured
mortgagee; if upon origination of the Mortgage Loan, the improvements on
the
Mortgaged Property were in an area identified in the Federal Register by
the
Federal Emergency Management Agency as having special flood hazards, a
flood
insurance policy meeting the requirements of the current guidelines of
the
Federal Insurance Administration is in effect with a generally acceptable
insurance carrier, in an amount representing coverage not less than the
least of
(A) the outstanding principal balance of the Mortgage Loan, (B) the
full insurable value and (C) the maximum amount of insurance which was
available under the Flood Disaster Protection Act of 1973, as amended.
All
individual insurance policies contain a standard mortgagee clause naming
the
Company and its successors and assigns as mortgagee and all premiums thereon
have been paid. The Mortgage obligates the Mortgagor thereunder to maintain
all
such insurance at the Mortgagor’s cost and expense, and on the Mortgagor's
failure to do so, authorizes the holder of the Mortgage to obtain and maintain
such insurance at such Xxxxxxxxx's cost and expense, and to seek reimbursement
therefor from the Mortgagor. The hazard insurance policy is the valid and
binding obligation of the insurer, is in full force and effect, and will
be in
full force and effect and inure to the benefit of the Purchaser upon the
consummation of the transactions contemplated by this Agreement and the
Company
has not acted or failed to act so as to impair the coverage of any such
insurance policy or the validity, binding effect and enforceability
thereof;
(xxviii) Servicemembers
Civil Relief Act. The Mortgagor has not notified the Company, and the Company
has no knowledge of any relief requested or allowed to the Mortgagor under
the
Servicemembers Civil Relief Act, as amended;
(xxix) Payment
Terms. The Mortgage Note is payable on the first day of each month in equal
monthly installments of principal and interest, which installments of interest
are subject to change due to the adjustments to the Mortgage Interest Rate
on
each Interest Rate Adjustment Date, with interest calculated and payable
in
arrears, sufficient to amortize the Mortgage Loan fully by the stated maturity
date, over an original term of not more than thirty years from origination
and
once the amortization period starts, payments are calculated to fully amortize
by maturity. No Mortgage Loan has a shared appreciation or other contingent
interest feature, or permits negative amortization. The Mortgage Interest
Rate
as well as the Lifetime Rate Cap and the Periodic Rate Cap for each Mortgage
Loan are as set forth for such Mortgage Loan in the Mortgage Loan
Schedule;
-32-
(xxx) No
Defaults. Except with respect to delinquencies identified on the Mortgage
Loan
Schedule, there is no default, breach, violation or event of acceleration
existing under any Mortgage or Mortgage Note and no event that, with the
passage
of time or with notice and the expiration of any grace or cure period,
would
constitute a default, breach, violation or event of acceleration, and the
Company has not waived any default, breach, violation or event of
acceleration;
(xxxi) Loan-to-Value
Ratio; Modifications; No Foreclosures. The Loan-to-Value Ratio of each
Mortgage
Loan was less than 100% at the time of its origination or refinancing,
as
applicable. No Mortgage Loan is subject to a written foreclosure agreement
or
pending foreclosure proceedings;
(xxxii) PMI.
Each
Mortgage Loan with an LTV at origination in excess of 80% will be subject
to a
PMI Policy or Lender Paid Mortgage Insurance Policy, issued by an insurer
acceptable to Xxxxxx Xxx or Freddie Mac, in at least such amounts as are
required by the Underwriting Guidelines. All provisions of such PMI Policy
or
Lender Paid 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. Any Mortgage subject to any such PMI Policy or Lender Paid Mortgage
Insurance Policy obligates the Mortgagor or Company, as applicable, to
maintain
such insurance and to pay all premiums and charges in connection therewith
unless terminable in accordance with Freddie Mac or Xxxxxx Xxx standards
or
Applicable Law;
(xxxiii) Underwriting
Guidelines. The Mortgage Loan was underwritten in accordance with the Company’s
underwriting guidelines in effect at the time of origination with exceptions
thereto exercised in a reasonable manner;
(xxxiv) No
Bankruptcy. To the best of the Company’s knowledge, no Mortgagor was a debtor in
any state or federal bankruptcy or insolvency proceeding at the time the
Mortgage Loan was originated and as of the related Closing Date, the Company
has
not received notice that any Mortgagor is a debtor under any state or federal
bankruptcy or insolvency proceeding.
(xxxv) [RESERVED]
(xxxvi) Comparable
Custodial Mortgage Loan File. Each document or instrument in the related
Custodial or Retained Mortgage File, whether delivered to the Custodian
or not
is in a form generally acceptable to prudent mortgage lenders that regularly
originate or purchase mortgage loans comparable to the Mortgage Loans for
sale
to prudent investors in the secondary market that invest in mortgage loans
such
as the Mortgage Loans;
-33-
(xxxvii) Contents
of the Retained Mortgage File. The Retained Mortgage File contains the
documents
listed in items (6) through (10) of Exhibit B;
(xxxviii) HOEPA.
No
Mortgage Loan is a High Cost Loan or Covered Loan;
(xxxix) Fair
Credit Reporting Act. The Company, in its capacity as servicer for each
Mortgage
Loan, has 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;
(xl) No
Arbitration. No Mortgage Loan originated on or after August 1, 2004
requires the related Mortgagor to submit to arbitration to resolve any
dispute
arising out of or relating in any way to the Mortgage Loan
transaction;
(xli) Subsidy
Mortgage Loans. With respect to each Mortgage Loan that is a Subsidy Mortgage
Loan:
(1) On
or
before the date of origination of such Mortgage Loan, the Company and the
Mortgagor, or the Company, the Mortgagor and the employer of the Mortgagor
entered into a Subsidy Agreement. The Subsidy Agreement provides that the
employer of the Mortgagor shall deliver to the Company temporary Subsidy
Funds
in an amount equal to the aggregate undiscounted amount of payments that,
when
added to the amount the Mortgagor on such Mortgage Loan is obligated to
pay on
each Due Date in accordance with the terms of the Subsidy Agreement, is
equal to
the full scheduled Monthly Payment due on such Mortgage Loan. The temporary
Subsidy Funds enable the Mortgagor to qualify for the Subsidy Mortgage
Loan. The
effective interest rate of a Subsidy Mortgage Loan if less than the interest
rate set forth in the related Mortgage Note will increase within the Subsidy
Period as provided in the related Subsidy Agreement so that the effective
interest rate will be equal to the interest rate as set forth in the related
Mortgage Note. All Subsidy Funds required to make the full payment of principal
and interest under each Subsidy Loan are in the Subsidy Account held by
the
Company in its capacity as servicer. The Subsidy Mortgage Loan satisfies
the
Underwriting Guidelines;
(2) The
Mortgage and Mortgage Note reflect the permanent payment terms rather than
the
payment terms of the Subsidy Agreement. The Subsidy Agreement provides
for the
payment by the Mortgagor of the full amount of the Monthly Payment on any
Due
Date that the Subsidy Funds are not available. The Subsidy Funds were not
used
to reduce the original principal balance of the Mortgage Loan or to increase
the
Appraised Value of the Mortgage Property when calculating the Loan-to-Value
Ratios for purposes of the Agreement;
-34-
(3) The
Subsidy Funds may not be refunded to the Mortgagor unless the Mortgagor
makes a
principal payment for the outstanding balance of the Mortgage Loan;
(xlii) No
Credit
Insurance Policies. No Mortgagor was required to purchase any credit life,
disability, accident or health insurance product as a condition of obtaining
the
extension of credit. No Mortgagor was required to obtain a prepaid single
premium credit life, disability, accident or health insurance policy in
connection with the origination of the Mortgage Loan; No proceeds from
any
Mortgage Loan were used to purchase single premium credit insurance policies
as
part of the origination of, or as a condition to closing, such Mortgage
Loan;
(xliii) Prepayment
Penalty Term. No Mortgage Loan originated on or after October 1, 2002,
will
impose a prepayment premium for a term in excess of three years after its
origination. No Mortgage Loan originated before October 1, 2002, will impose
a
prepayment premium for a term in excess of five years after its origination;
(xliv) Tax
Service Contract; Flood Certification Contract. Each Mortgage Loan shall
have a
tax service contract and, if applicable, a flood insurance contract which
shall
have a term of the life of the Mortgage Loan. Each such tax service and
flood
insurance contract shall be fully transferable without penalty, premium
or cost
to the Purchaser or its designee, unless, with respect to tax service contract,
the Company is terminated pursuant to Section 11.2 hereof;
(xlv) Violation
of Environmental Laws. There is no pending action or proceeding directly
involving any Mortgaged Property of which the Company is aware in which
compliance with any environmental law, rule or regulation is an issue;
and to
the best of the Company’s knowledge, nothing further remains to be done to
satisfy in full all requirements of each such law, rule or regulation
constituting a prerequisite to use and enjoyment of said property;
(xlvi) Buydown
Mortgage Loans. With respect to each Mortgage Loan that is a Buydown Mortgage
Loan:
(1) On
or
before the date of origination of such Mortgage Loan, the Company and the
Mortgagor, or the Company, the Mortgagor and the seller of the Mortgaged
Property or a third party entered into a Buydown Agreement. The Buydown
Agreement provides that the seller of the Mortgaged Property (or third
party)
shall deliver to the Company temporary Buydown Funds in an amount equal
to the
aggregate undiscounted amount of payments that, when added to the amount
the
Mortgagor on such Mortgage Loan is obligated to pay on each Due Date in
accordance with the terms of the Buydown Agreement, is equal to the full
scheduled Monthly Payment due on such Mortgage Loan. The temporary Buydown
Funds
enable the Mortgagor to qualify for the Buydown Mortgage Loan. The effective
interest rate of a Buydown Mortgage Loan if less than the interest rate
set
forth in the related Mortgage Note will increase within the Buydown Period
as
provided in the related Buydown Agreement so that the effective interest
rate
will be equal to the interest rate as set forth in the related Mortgage
Note.
All Buydown Funds required to make the full payment of principal and interest
under each Buydown Loan are in the Buydown Account held by the Company
in its
capacity as servicer. The Buydown Mortgage Loan satisfies the requirements
the
Underwriting Guidelines;
-35-
(2) The
Mortgage and Mortgage Note reflect the permanent payment terms rather than
the
payment terms of the Buydown Agreement. The Buydown Agreement provides
for the
payment by the Mortgagor of the full amount of the Monthly Payment on any
Due
Date that the Buydown Funds are not available. The Buydown Funds were not
used
to reduce the original principal balance of the Mortgage Loan or to increase
the
Appraised Value of the Mortgage Property when calculating the Loan-to-Value
Ratios for purposes of the Agreement;
(3) The
Buydown Funds may not be refunded to the Mortgagor unless the Mortgagor
makes a
principal payment for the outstanding balance of the Mortgage Loan;
As
of the
date of origination of the Mortgage Loan, the provisions of the related
Buydown
Agreement complied with the Underwriting Guidelines.
(xlvii) Interest
Calculation. Interest on each Mortgage Loan is calculated on the basis
of a
360-day year consisting of twelve 30-day months;
(xlviii) The
Mortgagor. The Mortgagor is one or more natural persons and/or trustees
for an
Illinois land trust or a trustee under a “living trust” and such “living trust”
is in compliance with the Underwriting Guidelines;
(xlix) No
Construction Loans. No Mortgage Loan was made in connection with (i) the
construction or rehabilitation of a Mortgage Property or (ii) facilitating
the
trade-in or exchange of a Mortgaged Property other than a
construction-to-permanent loan which has converted to a permanent Mortgage
Loan;
(l) Balloon
Payments, Graduated Payments or Contingent Interests. No Mortgage Loan
is a
graduated payment mortgage loan and no Mortgage Loan has a shared appreciation
or other contingent interest feature. If a Mortgage Loan has a balloon
payment
feature, the Mortgage Note is payable in monthly payments based on a fifteen-
or
thirty-year amortization schedule and a final monthly payment substantially
greater than the preceding monthly payment which is sufficient to amortize
the
remaining principal of the Mortgage Loan;
-36-
(li) Ground
Leases. With respect to each Mortgage Loan that is secured in whole or
in part
by the interest of the mortgagor as a lessee under a ground lease of the
related
Mortgaged Property (a “Ground
Lease”)
and
not by a fee interest in such Mortgaged Property and as further specified
in the
underwriting guidelines of the Company:
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(a)
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The
mortgagor is the owner of a valid and subsisting interest as
tenant under
the Ground Lease;
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(b)
|
The
Ground Lease is in full force and effect, unmodified and not
supplemented
by any writing or otherwise;
|
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(c)
|
The
Company has not received notice of default by the mortgagor under
the
Ground Lease or of circumstances which, with the passage of time
or the
giving of notice or both, would constitute an event of
default;
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(d)
|
The
term of the Ground Lease exceeds the maturity date of the related
Mortgage
Loan by at least five years;
|
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(e)
|
The
Ground Lease or a memorandum thereof has been recorded and by
its terms
permits the leasehold estate to be
mortgaged;
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(f)
|
The
Ground Lease does not contain any default provisions that could
give rise
to forfeiture or termination of the Ground Lease except for the
non-payment of the Ground Lease
rents;
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(g)
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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, the Ground Lease;
and
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(h)
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The
Ground Lease provides that the leasehold can be transferred,
mortgaged and
sublet an unlimited number of times either without restriction
or on
payment of a reasonable fee and delivery of reasonable documentation
to
the lessor.
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(lii) Conversion.
The Adjustable Rate Mortgage Loan is not a Convertible Mortgage Loan;
(liii) Anti-Money
Laundering Laws. With respect to each Mortgage Loan, the Company has complied
with all applicable anti-money laundering laws and regulations (the “Anti-Money
Laundering Laws”), and has established an anti-money laundering compliance
program as required by the applicable Anti-Money Laundering Laws, and maintains,
and will maintain, sufficient information to identify the applicable Mortgagor
for purposes of the Anti-Money Laundering Laws; and
-37-
(liv) Due
on
Sale. The Mortgage or Mortgage Note contains an enforceable provision,
to the
extent not prohibited by federal law, for the acceleration of the payment
of the
unpaid principal balance of the related Mortgage Loan in the event the
related
Mortgaged Property is sold without the prior consent of the mortgagee
thereunder; provided that, with respect to Mortgage Notes which bear an
adjustable rate of interest, such provision shall not be enforceable if
the
Mortgagor causes to be submitted to the Company to evaluate the intended
transferee as if a new Mortgage Loan were being made to such transferee,
and the
Company reasonably determines that the security will not be impaired by
such
Mortgage Loan assumption and that the risk of breach of any covenant or
agreement in such Mortgage is acceptable to the Purchaser.
(lv) Cooperative
Loans. With respect to each Cooperative Loan:
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(i)
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The
Cooperative Shares are held by a Person as a tenant-stockholder
in a
Cooperative. Each original UCC financing statement, continuation
statement
or other governmental filing or recordation necessary to create
or
preserve the perfection and priority of the first lien and
security
interest in the Cooperative Loan and Proprietary Lease has
been timely and
properly made. Any security agreement, chattel mortgage or
equivalent
document related to the Cooperative Loan and delivered to Purchaser
or its
designee establishes in Purchaser a valid and subsisting perfected
first
lien on and security interest in the Mortgaged Property described
therein,
and Purchaser has full right to sell and assign the
same;
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(ii)
|
A
Cooperative Lien Search 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 is
located;
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(iii)
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(a)
The term of the related Proprietary Lease is not less than
the terms of
the Cooperative Loan; (b) there is no provision in any Proprietary
Lease
which requires the Mortgagor to offer for sale the Cooperative
Shares
owned by such Mortgagor first to the Cooperative; (c) there
is no
prohibition in any Proprietary Lease against pledging the Cooperative
Shares or assigning the Proprietary Lease; (d) the Cooperative
has been
created and exists in full compliance with the requirements
for
residential cooperatives in the jurisdiction in which the Project
is
located and qualifies as a cooperative housing corporation
under Section
210 of the Code; (e) the Recognition Agreement is on a form
published by
Aztech Document Services, Inc. or includes similar provisions;
and (f) the
Cooperative has good and marketable title to the Project, and
owns the
Project either in fee simple or under a leasehold that complies
with the
requirements of Xxxxxx Xxx or Xxxxxxx Mac; such title is free
and clear of
any adverse liens or encumbrances, except the lien of any blanket
mortgage;
|
-38-
|
(iv)
|
The
Company has the right under the terms of the Mortgage Note,
Pledge
Agreement and Recognition Agreement to pay any maintenance
charges or
assessments owed by the Mortgagor;
and
|
|
(v)
|
Each
Stock Power (i) has all signatures guaranteed or (ii) if all
signatures
are not guaranteed, then such Cooperative Shares will be transferred
by
the stock transfer agent of the Cooperative if the Company
undertakes to
convert the ownership of the collateral securing the related
Cooperative
Loan.
|
|
(vi)
|
Pledged
Asset Mortgage Loans. With respect to each Pledged Asset Mortgage
Loan:
|
|
(i)
|
The
Pledge Holder has a rating of at least “AA” (or the equivalent) or better
from at least two Rating Agencies and the Pledge Holder is
obligated to
give the beneficiary of each Letter of Credit at least sixty (60)
days notice of any non-renewal of any Letter of
Credit;
|
|
(ii)
|
With
respect to each Pledged Asset Mortgage Loan, the Company
is the named
beneficiary and no Person has drawn any funds against such
Letter of
Credit;
|
|
(iii)
|
Each
Letter of Credit is for an amount at least equal to 20% of
the lesser of
the Purchase Price or the Appraised Value of the related
Mortgaged
Property;
|
|
(iv)
|
As
of the Closing Date, the Company has complied with all the
requirements of
any Letter of Credit, and each Letter of Credit is a valid
and enforceable
obligation of the Pledge Holder;
|
|
(v)
|
The
Company has the right to draw on each Letter of Credit if
the related
Pledged Asset Mortgage Loan becomes 90 days or more delinquent
and to
apply such proceeds as a partial prepayment
thereon;
|
|
(vi)
|
The
Company has not received notice of any non-renewal of any
Letter of
Credit;
|
|
(vii)
|
Upon
a default by the Pledge Holder, the Company will have a perfected
first
priority security interest in the assets pledged to secure
the Letter of
Credit and has the right to obtain possession thereof and
the right to
liquidate such assets and apply the proceeds thereof to prepay
the related
Pledged Asset Mortgage Loan;
and
|
-39-
|
(viii)
|
The
Letter of Credit is required to be in effect (either for
its original term
or through renewal) until such time as all amounts owed under
the related
Pledged Asset Mortgage Loan by the related Mortgagor are
less than 80% of
the lesser of the Purchase Price or the Appraised Value of
the related
Mortgaged Property.
|
Section
3.3 Repurchase.
It
is
understood and agreed that the representations and warranties set forth
in
Sections 3.1 and 3.2 shall survive the sale of the Mortgage Loans to the
Purchaser and the delivery of the Mortgage Loan Documents to the Custodian
and
shall inure to the benefit of the Purchaser, notwithstanding any restrictive
or
qualified endorsement on any Mortgage Note or Assignment of Mortgage or
the
examination or failure to examine any Custodial Mortgage File or Retained
Mortgage File. Upon discovery by either the Company or the Purchaser of
a breach
of any of the foregoing representations and warranties which materially
and
adversely affects the value of the Mortgage Loans or the interest of the
Purchaser (or which materially and adversely affects the interests of Purchaser
in the related Mortgage Loan in the case of a representation and warranty
relating to a particular Mortgage Loan), the party discovering such breach
shall
give prompt written notice to the other.
Within
90
days of the earlier of either discovery by or notice to the Company of
any
breach of a representation or warranty which materially and adversely affects
the value of the Mortgage Loans, (i) the Company shall use its best efforts
promptly to cure such breach in all material respects and (ii) if such
breach
cannot be cured, the Company shall, at the Purchaser’s option, repurchase such
Mortgage Loan at the Repurchase Price. In the event that a breach shall
involve
any representation or warranty set forth in Section 3.1, and such breach
cannot
be cured within 90 days of the earlier of either discovery by or notice
to the
Company of such breach, all of the Mortgage Loans shall, at the Purchaser’s
option, be repurchased by the Company at the Repurchase Price. Any repurchase
of
a Mortgage Loan or Loans pursuant to the foregoing provisions of this Section
3.3 shall be accomplished by deposit in the Custodial Account of the amount
of
the Repurchase Price as required in Section 4.4, for distribution to Purchaser
on the Remittance Date immediately following the Principal Prepayment Period
in
which such Repurchase Price is received, after deducting therefrom any
amount
received in respect of such repurchased Mortgage Loan or Loans and being
held in
the Custodial Account for future distribution for application in accordance
with
Section 5.1.
Notwithstanding
the above paragraphs, within 60 days of the earlier of either discovery
by, or
notice to, the Company of any breach of the representations or warranties
set
forth in clauses, (xxxviii), (xxxix), (xl), (xlii) and (xliii) of Section
3.2,
the Company shall repurchase such Mortgage Loan at the Repurchase
Price.
-40-
If
pursuant to the foregoing provisions the Company repurchases a Mortgage
Loan
that is a MERS Mortgage Loan, the Company 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 Company on behalf of the Purchaser 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 Purchaser as the beneficial holder with respect to such Mortgage
Loan.
At
the
time of repurchase, the Purchaser and the Company shall arrange for the
reassignment of the repurchased Mortgage Loan to the Company and the delivery
to
the Company of any documents held by the Custodian relating to the repurchased
Mortgage Loan. In the event of a repurchase, the Company shall, simultaneously
with such reassignment, give written notice to the Purchaser that such
repurchase has taken place and amend the Mortgage Loan Schedule to reflect
the
withdrawal of the repurchased Mortgage Loan from this Agreement.
In
addition to such repurchase obligation, the Company shall indemnify the
Purchaser and hold it harmless against any losses, damages, penalties,
fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments,
and other costs and expenses resulting from any claim, demand, defense
or
assertion based on or grounded upon, or resulting from, a breach of the
Company’s representations and warranties contained in this Agreement. It is
understood and agreed that the obligations of the Company set forth in
this
Section 3.3 to cure or repurchase a defective Mortgage Loan and to indemnify
the
Purchaser as provided in this Section 3.3, constitute the sole remedies
of the
Purchaser respecting a breach of the foregoing representations and
warranties.
Any
cause
of action against the Company relating to or arising out of the breach
of any
representations and warranties made in Sections 3.1 and 3.2 shall accrue
as to
any Mortgage Loan upon the earliest of (i) discovery of such breach by
the
Company or the Purchaser or notice thereof by the Purchaser to the Company,
(ii)
failures by the Company to cure such breach or repurchase such Mortgage
Loan as
specified above, and (iii) demand upon the Company by the Purchaser for
compliance with this Agreement.
ARTICLE
IV
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
Section
4.1 Company
to Act as Servicer.
The
Company, as an independent contractor, shall service and administer the
Mortgage
Loans and shall have full power and authority, acting alone or through
the
utilization of a Subcontractor, to do any and all things in connection
with such
servicing and administration which the Company may deem necessary or desirable,
consistent with the terms of this Agreement and with Accepted Servicing
Practices. The Company shall be responsible for any and all acts of a
Subcontractor, and the Company's utilization of a Subcontractor shall in
no way
relieve the liability of the Company under this Agreement.
-41-
Consistent
with the terms of this Agreement and subject to the REMIC Provisions if
the
Mortgage Loans have been transferred to a REMIC, the Company may waive,
modify
or vary any term of any Mortgage Loan or consent to the postponement of
strict
compliance with any such term or in any manner grant indulgence to any
Mortgagor
if in the Company’s reasonable and prudent determination such waiver,
modification, postponement or indulgence is not materially adverse to the
Purchaser. In the event of any such modification which permits the deferral
of
interest or principal payments on any Mortgage Loan, the Company shall,
on the
Business Day immediately preceding the Remittance Date in any month in
which any
such principal or interest payment has been deferred, deposit in the Custodial
Account from its own funds, in accordance with Section 5.3, the difference
between (a) such month’s principal and one month’s interest at the Mortgage Loan
Remittance Rate on the unpaid principal balance of such Mortgage Loan and
(b)
the amount paid by the Mortgagor. The Company shall be entitled to reimbursement
for such advances to the same extent as for all other advances made pursuant
to
Section 5.3. Without limiting the generality of the foregoing, the Company
shall
continue, and is hereby authorized and empowered, to execute and deliver
on
behalf of itself and the Purchaser, all instruments of satisfaction or
cancellation, or of partial or full release, discharge and all other comparable
instruments, with respect to the Mortgage Loans and with respect to the
Mortgaged Properties. If reasonably required by the Company, the Purchaser
shall
furnish the Company with any powers of attorney and other documents necessary
or
appropriate to enable the Company to carry out its servicing and administrative
duties under this Agreement.
In
servicing and administering the Mortgage Loans, the Company shall employ
procedures (including collection procedures) and exercise the same care
that it
customarily employs and exercises in servicing and administering mortgage
loans
for its own account, giving due consideration to Accepted Servicing Practices
where such practices do not conflict with the requirements of this Agreement,
and the Purchaser’s reliance on the Company.
Notwithstanding
anything to the contrary contained herein, the Company shall not waive
a
prepayment penalty except under the following circumstances: (i) such waiver
would, in the reasonable judgment of the Company, maximize recovery of
total
proceeds taking into account the value of such prepayment penalty and the
related Mortgage Loan and, if such waiver is made in connection with a
refinancing of the related Mortgage Loan, such refinancing is related to
a
default or a reasonably foreseeable default; or (ii) the Company obtains
a
written Opinion of Counsel, which may be in-house counsel for the Company,
opining that any prepayment penalty or charge is not legally enforceable
in the
circumstances under which the related Principal Prepayment occurs. In the
event
the Company waives any prepayment penalty, other than as set forth in (i)
and
(ii) above, the Company shall deposit the amount of any such prepayment
penalty
in the Custodial Account for distribution to the Purchaser on the next
Remittance Date.
The
Company is authorized and empowered by the Purchaser, in its own name,
when the
Company believes it appropriate in its reasonable judgment to register
any
Mortgage Loan on the MERS® System, or cause the removal from 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. The Company 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.
-42-
The
Company shall cause to be maintained for each Cooperative Loan a copy of
the
financing statements and shall file and such financing statements and
continuation statements as necessary, in accordance with the Uniform Commercial
Code applicable in the jurisdiction in which the related Cooperative Apartment
is located, to perfect and protect the security interest and lien of the
Purchaser.
Section
4.2 Liquidation
of Mortgage Loans.
In
the
event that any payment due under any Mortgage Loan and not postponed pursuant
to
Section 4.1 is not paid when the same becomes due and payable, or in the
event
the Mortgagor fails to perform any other covenant or obligation under the
Mortgage Loan and such failure continues beyond any applicable grace period,
the
Company shall take such action as (1) the Company would take under similar
circumstances with respect to a similar mortgage loan held for its own
account
for investment, (2) shall be consistent with Accepted Servicing Practices,
(3)
the Company shall determine prudently to be in the best interest of Purchaser
and (4) is consistent with any related PMI Policy or LPMI Policy. In the
event
that any payment due under any Mortgage Loan is not postponed pursuant
to
Section 4.1 and remains delinquent for a period of 90 days or any other
default
continues for a period of 90 days beyond the expiration of any grace or
cure
period, the Company shall commence foreclosure proceedings, the Company
shall
notify the Purchaser in writing of the Company’s intention to do so, and the
Company shall not commence foreclosure proceedings if the Purchaser objects
to
such action within three (3) Business Days of receiving such notice. In
the
event the Purchaser objects to such foreclosure action, the Company shall
not be
required to make Monthly Advances with respect to such Mortgage Loan, pursuant
to Section 5.3, and the Company’s obligation to make such Monthly Advances shall
terminate on the 90th day referred to above. In such connection, the Company
shall from its own funds make all necessary and proper Servicing Advances,
provided,
however,
that
the Company shall not be required to expend its own funds in connection
with any
foreclosure or towards the restoration or preservation of any Mortgaged
Property, unless it shall determine (a) that such preservation, restoration
and/or foreclosure will increase the proceeds of liquidation of the Mortgage
Loan to Purchaser after reimbursement to itself for such expenses and (b)
that
such expenses will be recoverable by it either through Liquidation Proceeds
(respecting which it shall have priority for purposes of withdrawals from
the
Custodial Account pursuant to Section 4.5) or through Insurance Proceeds
(respecting which it shall have similar priority).
Notwithstanding
anything to the contrary contained herein, in connection with a foreclosure
or
acceptance of a deed in lieu of foreclosure, in the event the Company has
reasonable cause to believe that a Mortgaged Property is contaminated by
hazardous or toxic substances or wastes, or if the Purchaser otherwise
requests
an environmental inspection or review of such Mortgaged Property, such an
inspection or review is to be conducted by a qualified inspector. The cost
for
such inspection or review shall be borne by the Purchaser. Upon completion
of
the inspection or review, the Company shall promptly provide the Purchaser
with
a written report of the environmental inspection.
-43-
After
reviewing the environmental inspection report, the Purchaser shall determine
how
the Company shall proceed with respect to the Mortgaged Property. In the
event
(a) the environmental inspection report indicates that the Mortgaged Property
is
contaminated by hazardous or toxic substances or wastes and (b) the Purchaser
directs the Company to proceed with foreclosure or acceptance of a deed
in lieu
of foreclosure, the Company shall be reimbursed for all reasonable costs
associated with such foreclosure or acceptance of a deed in lieu of foreclosure
and any related environmental clean up costs, as applicable, from the related
Liquidation Proceeds, or if the Liquidation Proceeds are insufficient to
fully
reimburse the Company, the Company shall be entitled to be reimbursed from
amounts in the Custodial Account pursuant to Section 4.5 hereof. In the
event
the Purchaser directs the Company not to proceed with foreclosure or acceptance
of a deed in lieu of foreclosure, the Company shall be reimbursed for all
Servicing Advances made with respect to the related Mortgaged Property
from the
Custodial Account pursuant to Section 4.5 hereof.
Section
4.3 Collection
of Mortgage Loan Payments.
Continuously
from the date hereof until the principal and interest on all Mortgage Loans
are
paid in full, the Company shall proceed diligently to collect all payments
due
under each of the Mortgage Loans when the same shall become due and payable
in
accordance with Accepted Servicing Practices, and shall, in accordance
with
RESPA and applicable state law, take special care in ascertaining and estimating
Escrow Payments and all other charges that will become due and payable
with
respect to the Mortgage Loan and the Mortgaged Property, to the end that
the
installments payable by the Mortgagors will be sufficient to pay such charges
as
and when they become due and payable.
Section
4.4 Establishment
of and Deposits to Custodial Account.
The
Company shall segregate and hold all funds collected and received pursuant
to a
Mortgage Loan or a Letter of Credit separate and apart from any of its
own funds
and general assets and shall establish and maintain one or more Custodial
Accounts, in the form of time deposit or demand accounts, titled “Xxxxx Fargo
Bank, N.A., in trust for the Purchaser of Residential Mortgage Loans serviced
under the Second Amended and Restated Master Seller’s Warranties and Servicing
Agreement, dated as of November 1, 2005 - P & I”, or as otherwise
directed in writing by the Purchaser or its assigns after the related Closing
Date in connection with any Whole Loan Transfer or Securitization Transaction.
The Custodial Account shall be established with a Qualified Depository.
Upon
request of the Purchaser and within ten (10) days thereof, the Company
shall provide the Purchaser with written confirmation of the existence
of such
Custodial Account. The Custodial Account shall at all times be insured
to the
fullest extent allowed by Applicable Law. Funds deposited in the Custodial
Account may be drawn on by the Company in accordance with Section
4.5.
The
Company shall deposit in the Custodial Account within one Business Day
(or two
Business Days in the case of the amounts described in clauses (3) through
(5)
below) of the Company’s receipt, and retain therein, the following collections
received by the Company and payments made by the Company after the related
Cut-off Date, other than payments of principal and interest due on or before
the
related Cut-off Date:
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(1) all
payments on account of principal on the Mortgage Loans, including all Principal
Prepayments;
(2) all
payments on account of interest on the Mortgage Loans, adjusted to the
Mortgage
Loan Remittance Rate;
(3) all
Liquidation Proceeds;
(4) all
Insurance Proceeds including amounts required to be deposited pursuant
to
Section 4.10 (other than proceeds to be held in the Escrow Account and
applied
to the restoration or repair of the Mortgaged Property or released to the
Mortgagor in accordance with Section 4.14), Section 4.11 and Section
4.15;
(5) all
Condemnation Proceeds which are not applied to the restoration or repair
of the
Mortgaged Property or released to the Mortgagor in accordance with Section
4.14;
(6) any
amount required to be deposited in the Custodial Account pursuant to Section
4.1, 5.1, 5.3, 6.1 or 6.2;
(7) any
amounts payable in connection with the repurchase of any Mortgage Loan
pursuant
to Section 2.3, 3.3 or 6.2;
(8) with
respect to each Principal Prepayment an amount (to be paid by the Company
out of
its funds) which, when added to all amounts allocable to interest received
in
connection with the Principal Prepayment, equals one month’s interest on the
amount of principal so prepaid at the Mortgage Loan Remittance
Rate;
(9) any
amounts required to be deposited by the Company pursuant to Section 4.11
in
connection with the deductible clause in any blanket hazard insurance
policy;
(10) any
amounts received with respect to or related to any REO Property and all
REO
Disposition Proceeds pursuant to Section 4.16;
(11) an
amount
from the Buydown Account that when added to the Mortgagor’s payment will equal
the full monthly amount due under the related Mortgage Note;
(12) an
amount
from the Subsidy Account that when added to the Mortgagor’s payment will equal
the full monthly amount due under the related Mortgage Note;
and
-45-
(13) with
respect to a Pledged Asset Mortgage Loan, any amounts required to be deposited
by the Company pursuant to Section 4.25 of this Agreement in connection
with a Letter of Credit.
The
foregoing requirements for deposit into the Custodial Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of late payment charges and assumption
fees, to the extent permitted by Section 6.1, need not be deposited by
the
Company into the Custodial Account. Any interest paid on funds deposited
in the
Custodial Account by the depository institution shall accrue to the benefit
of
the Company and the Company shall be entitled to retain and withdraw such
interest from the Custodial Account pursuant to Section 4.5. The Company
shall
reimburse the Custodial Account for any losses incurred as a result of
the
investment of amounts on deposit in the Custodial Account.
Section
4.5 Permitted
Withdrawals From Custodial Account.
The
Company shall, from time to time, withdraw funds from the Custodial Account
for
the following purposes:
(1) to
make
payments to the Purchaser in the amounts and in the manner provided for
in
Section 5.1;
(2) to
reimburse itself for Monthly Advances of the Company’s funds made pursuant to
Section 5.3, the Company’s right to reimburse itself pursuant to this subclause
(2) being limited to amounts received on the related Mortgage Loan which
represent late payments of principal and/or interest respecting which any
such
advance was made, it being understood that, in the case of any such
reimbursement, the Company’s right thereto shall be prior to the rights of
Purchaser, except that, where the Company is required to repurchase a Mortgage
Loan pursuant to Section 2.3, 3.3 or 6.2, the Company’s right to such
reimbursement shall be subsequent to the payment to the Purchaser of the
Repurchase Price pursuant to such sections and all other amounts required
to be
paid to the Purchaser with respect to such Mortgage Loan;
(3) to
reimburse itself for unreimbursed Servicing Advances, and for any unpaid
Servicing Fees, the Company’s right to reimburse itself pursuant to this
subclause (3) with respect to any Mortgage Loan being limited to related
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds and such
other
amounts as may be collected by the Company from the Mortgagor or otherwise
relating to the Mortgage Loan, it being understood that, in the case of
any such
reimbursement, the Company’s right thereto shall be prior to the rights of
Purchaser, except that where the Company is required to repurchase a Mortgage
Loan pursuant to Section 2.3, 3.3 or 6.2, in which case the Company’s right to
such reimbursement shall be subsequent to the payment to the Purchaser
of the
Repurchase Price pursuant to such sections and all other amounts required
to be
paid to the Purchaser with respect to such Mortgage Loan;
-46-
(4) to
pay
itself as servicing compensation any interest on funds deposited in the
Custodial Account;
(5) to
reimburse itself for expenses incurred to the extent reimbursable pursuant
to
Section 8.1;
(6) to
pay
any amount required to be paid pursuant to Section 4.16 related to any
REO
Property, it being understood that, in the case of any such expenditure
or
withdrawal related to a particular REO Property, the amount of such expenditure
or withdrawal from the Custodial Account shall be limited to amounts on
deposit
in the Custodial Account with respect to the related REO Property;
(7) to
reimburse itself for any Servicing Advances or REO expenses after liquidation
of
the Mortgaged Property not otherwise reimbursed above;
(8) to
reimburse the trustee with respect to any Securitization Transaction for
any
unreimbursed Monthly Advances or Servicing Advances made by the Trustee,
as
applicable, the right to reimbursement pursuant to this subclause (8) with
respect to any Mortgage Loan being limited to related Liquidation Proceeds,
proceeds of REO Dispositions, Condemnation Proceeds, Insurance Proceeds
and such
other amounts as may be collected by the Company from the Mortgagor or
otherwise
relating to the Mortgage Loan, it being understood that, in the case of
such
reimbursement, such trustee’s right thereto shall be prior to the rights of the
Company to reimbursement under (2) and (3), and prior to the rights of
the
Purchaser under (1);
(9) to
remove
funds inadvertently placed in the Custodial Account by the Company;
and
(10) to
clear
and terminate the Custodial Account upon the termination of this
Agreement.
In
the
event that the Custodial Account is interest bearing, on each Remittance
Date,
the Company shall withdraw all interest earned on funds on deposit in the
Custodial Account. The Company may use such withdrawn funds only for the
purposes described in this Section 4.5.
Section
4.6 Establishment
of and Deposits to Escrow Account.
The
Company shall segregate and hold all funds collected and received pursuant
to a
Mortgage Loan constituting Escrow Payments separate and apart from any
of its
own funds and general assets and shall establish and maintain one or more
Escrow
Accounts, in the form of time deposit or demand accounts, titled, “Xxxxx Fargo
Bank, N.A., in trust for the Purchaser under the Second Amended and Restated
Master Seller’s Warranties and Servicing Agreement dated as of November 1,
2005 and/or subsequent purchasers of Mortgage Loans, and various Mortgagors
- T
& I.” The Escrow Accounts shall be established with a Qualified Depository,
in a manner which shall provide maximum available insurance thereunder.
Upon
request of the Purchaser and within ten (10) days thereof, the Company
shall
provide the Purchaser with written confirmation of the existence of such
Escrow
Account. Funds deposited in the Escrow Account may be drawn on by the Company
in
accordance with Section 4.7.
-47-
The
Company shall deposit in the Escrow Account or Accounts within two (2)
Business
Days of the Company’s receipt, and retain therein:
(1) 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;
(2) all
amounts representing Insurance Proceeds or Condemnation Proceeds which
are to be
applied to the restoration or repair of any Mortgaged Property; and
(3) all
amounts representing proceeds of any PMI Policy.
The
Company shall make withdrawals from the Escrow Account only to effect such
payments as are required under this Agreement, as set forth in Section
4.7. The
Company shall be entitled to retain any interest paid on funds deposited
in the
Escrow Account by the depository institution, other than interest on escrowed
funds required by law to be paid to the Mortgagor. To the extent required
by
law, the Company shall pay interest on escrowed funds to the Mortgagor
notwithstanding that the Escrow Account may be non-interest bearing or
that
interest paid thereon is insufficient for such purposes. The Company shall
reimburse the Escrow Account for any losses incurred as a result of the
investment of amounts on deposit in the Escrow Account.
Section
4.7 Permitted
Withdrawals From Escrow Account.
Withdrawals
from the Escrow Account or Accounts may be made by the Company
only:
(1) to
effect
timely payments of ground rents, taxes, assessments, water rates, mortgage
insurance premiums, condominium charges, fire and hazard insurance premiums
or
other items constituting Escrow Payments for the related Mortgage;
(2) to
reimburse the Company for any Servicing Advances made by the Company pursuant
to
Section 4.8 with respect to a related Mortgage Loan, but only from amounts
received on the related Mortgage Loan which represent late collections
of Escrow
Payments thereunder;
(3) to
refund
to any Mortgagor any funds found to be in excess of the amounts required
under
the terms of the related Mortgage Loan;
-48-
(4) for
transfer to the Custodial Account and application to reduce the principal
balance of the Mortgage Loan in accordance with the terms of the related
Mortgage and Mortgage Note;
(5) for
application to restoration or repair of the Mortgaged Property in accordance
with the procedures outlined in Section 4.14;
(6) to
pay to
the Company, or any Mortgagor to the extent required by law, any interest
paid
on the funds deposited in the Escrow Account;
(7) to
remove
funds inadvertently placed in the Escrow Account by the Company;
(8) to
apply
the proceeds of PMI Policy as if such proceeds were payments on, or Liquidation
Proceeds of, the related Mortgage Loan, as the case may be;
(9) to
clear
and terminate the Escrow Account on the termination of this Agreement;
and
(10) to
remit
to Purchaser payments on account of Buydown Funds as applicable.
Section
4.8 Payment
of Taxes, Insurance and Other Charges.
With
respect to each Mortgage Loan, the Company shall maintain accurate records
reflecting the status of ground rents, taxes, assessments, water rates,
sewer
rents, and other charges which are or may become a lien upon the Mortgaged
Property and fire and hazard insurance coverage and shall obtain, from
time to
time, all bills for the payment of such charges (including renewal premiums)
and
shall effect payment thereof prior to the applicable penalty or termination
date, employing for such purpose deposits of the Mortgagor in the Escrow
Account
which shall have been estimated and accumulated by the Company in amounts
sufficient for such purposes, as allowed under the terms of the Mortgage.
The
Company assumes full responsibility for the timely payment of all such
bills and
shall effect timely payment of all such charges irrespective of each Mortgagor’s
faithful performance in the payment of same or the making of the Escrow
Payments, and the Company shall make advances from its own funds to effect
such
payments.
Section
4.9 Protection
of Accounts.
The
Company may transfer the Custodial Account, Buydown Account or Subsidy
Account
or the Escrow Account to a different Qualified Depository from time to
time,
upon prior written notice to the Purchaser.
Section
4.10 Maintenance
of Hazard Insurance.
-49-
The
Company shall cause to be maintained for each Mortgage Loan hazard insurance
such that all buildings upon the Mortgaged Property are insured by an insurer
acceptable to Xxxxxx Xxx or Freddie Mac, against loss by fire, hazards
of
extended coverage and such other hazards as are customary in the area where
the
Mortgaged Property is located, in an amount which is at least equal to
the
lesser of (a) 100% the insurable value, on a replacement cost basis, of
the
improvements on the related Mortgaged Property and (b) the greater of (i)
the
outstanding principal balance of the Mortgage Loan or (ii) an amount such
that
the proceeds of such insurance shall be sufficient to prevent the application
of
the Mortgagor or the loss payee of any coinsurance under the policy. In
the
event a hazard insurance policy shall be in danger of being terminated,
or in
the event the insurer shall cease to be acceptable to Xxxxxx Xxx or Freddie
Mac,
the Company shall notify the Purchaser and the related Mortgagor, and shall
use
its best efforts, as permitted by Applicable Law, to obtain from another
Qualified Insurer a replacement hazard insurance policy substantially and
materially similar in all respects to the original policy. In no event,
however,
shall a Mortgage Loan be without a hazard insurance policy at any time,
subject
only to Section 4.11 hereof.
If
upon
origination of the Mortgage Loan, the related Mortgaged Property was located
in
an area identified by the Flood Emergency Management Agency as having special
flood hazards (and such flood insurance has been made available) a flood
insurance policy meeting the requirements of the current guidelines of
the
Federal Insurance Administration is in effect with a generally acceptable
insurance carrier acceptable to Xxxxxx Xxx or Freddie Mac, in an amount
representing coverage equal to the lesser of (i) the minimum amount required,
under the terms of coverage, to compensate for any damage or loss on a
replacement cost basis (or the unpaid balance of the mortgage if replacement
cost coverage is not available for the type of building insured) and (ii)
the
maximum amount of insurance which is available under the Flood Disaster
Protection Act of 1973, as amended.
If
a
Mortgage is secured by a unit in a condominium project, the Company shall
verify
that the coverage required of the owner’s association, including hazard, flood,
liability, and fidelity coverage, is being maintained in accordance with
then
current Xxxxxx Xxx or Freddie Mac requirements, secure from the owner’s
association its agreement to notify the Company promptly of any change
in the
insurance coverage or of any condemnation or casualty loss that may have
a
material effect on the value of the Mortgaged Property as security.
In
the
event that any Purchaser or the Company shall determine that the Mortgaged
Property should be insured against loss or damage by hazards and risks
not
covered by the insurance required to be maintained by the Mortgagor pursuant
to
the terms of the Mortgage, the Company shall communicate and consult with
the
Mortgagor with respect to the need for such insurance and bring to the
Mortgagor’s attention the desirability of protection of the Mortgaged
Property.
All
policies required hereunder shall name the Company as loss payee and shall
be
endorsed with standard or union mortgagee clauses, without contribution,
which
shall provide for at least 30 days prior written notice of any cancellation,
reduction in amount or material change in coverage.
-50-
The
Company shall not interfere with the Mortgagor’s freedom of choice in selecting
either his insurance carrier or agent, provided,
however,
that
the Company shall not accept any such insurance policies from insurance
companies unless such companies are acceptable to Xxxxxx Xxx and Freddie
Mac and
are licensed to do business in the jurisdiction in which the Mortgaged
Property
is located. The Company shall determine that such policies provide sufficient
risk coverage and amounts, that they insure the property owner, and that
they
properly describe the property address.
Pursuant
to Section 4.4, any amounts collected by the Company under any such policies
(other than amounts to be deposited in the Escrow Account and applied to
the
restoration or repair of the related Mortgaged Property, or property acquired
in
liquidation of the Mortgage Loan, or to be released to the Mortgagor, in
accordance with the Company’s normal servicing procedures as specified in
Section 4.4) shall be deposited in the Custodial Account subject to withdrawal
pursuant to Section 4.5.
Section
4.11 Maintenance
of PMI Policy; Claims.
With
respect to each Mortgage Loan with a LTV in excess of 80% at the time of
origination, the Company shall, without any cost to the Purchaser, maintain
or
cause the Mortgagor to maintain in full force and effect a PMI Policy or
Lender
Paid Mortgage Insurance Policy insuring that portion of the Mortgage Loan
as is
required by the Underwriting Guidelines. The Company shall pay or shall
cause
the Mortgagor to pay the premium thereon on a timely basis, at least until
the
LTV of such Mortgage Loan is reduced to 80%, or such amount as required
by
Applicable Law. In the event that such PMI Policy shall be terminated,
the
Company shall obtain from another insurer a comparable replacement policy,
with
a total coverage equal to the remaining coverage of such terminated PMI
Policy.
If the insurer shall cease to be a qualified insurer, the Company shall
determine whether recoveries under the PMI Policy or Lender Paid Mortgage
Insurance Policy are jeopardized for reasons related to the financial condition
of such insurer, it being understood that the Company shall in no event
have any
responsibility or liability for any failure to recover under the PMI Policy
or
Lender Paid Mortgage Insurance Policy for such reason. If the Company determines
that recoveries are so jeopardized, it shall notify the Purchaser and the
Mortgagor, if required, and obtain from another qualified insurer a replacement
insurance policy. The Company will maintain or cause to be maintained in
full
force and effect any LPMI Policy issued by a Qualified Insurer with respect
to
each Mortgage Loan for which such coverage is in existence or is obtained.
The
Company shall not take any action which would result in noncoverage under
any
applicable PMI Policy or Lender Paid Mortgage Insurance Policy of any loss
which, but for the actions of the Company would have been covered thereunder.
In
connection with any assumption or substitution agreement entered into or
to be
entered into pursuant to Subsection 6.1, the Company shall promptly notify
the
insurer under the related PMI Policy or Lender Paid Mortgage Insurance
Policy,
if any, of such assumption or substitution of liability in accordance with
the
terms of such PMI Policy or Lender Paid Mortgage Insurance Policy, and
shall
take all actions which may be required by such insurer as a condition to
the
continuation of coverage under such PMI Policy or Lender Paid Mortgage
Insurance
Policy. If such PMI Policy or Lender Paid Mortgage Insurance Policy is
terminated as a result of such assumption or substitution of liability,
the
Company shall obtain a replacement PMI Policy or Lender Paid Mortgage Insurance
Policy as provided above.
-51-
In
connection with its activities as servicer, the Company agrees to prepare
and
present, on behalf of itself and the Purchaser, claims to the insurer under
any
PMI Policy or Lender Paid Mortgage Insurance Policy in a timely fashion
in
accordance with the terms of such PMI Policy or Lender Paid Mortgage Insurance
Policy, and, in this regard, to take such action as shall be necessary
to permit
recovery under any PMI Policy or Lender Paid Mortgage Insurance Policy
respecting a defaulted Mortgage Loan. Pursuant to Section 4.6, any amounts
collected by the Company under any PMI Policy or Lender Paid Mortgage Insurance
Policy shall be deposited in the Escrow Account, subject to withdrawal
pursuant
to Section 4.7.
Section
4.12 Maintenance
of Mortgage Impairment Insurance.
In
the
event that the Company shall obtain and maintain a blanket policy insuring
against losses arising from fire and hazards covered under extended coverage
on
all of the Mortgage Loans, then, to the extent such policy provides coverage
in
an amount equal to the amount required pursuant to Section 4.10 and otherwise
complies with all other requirements of Section 4.10, it shall conclusively
be
deemed to have satisfied its obligations as set forth in Section 4.10.
The
Company shall prepare and make any claims on the blanket policy as deemed
necessary by the Company in accordance with Accepted Servicing Practices.
Any
amounts collected by the Company under any such policy relating to a Mortgage
Loan shall be deposited in the Custodial Account subject to withdrawal
pursuant
to Section 4.5. Such policy may contain a deductible clause, in which case,
in
the event that there shall not have been maintained on the related Mortgaged
Property a policy complying with Section 4.10, and there shall have been
a loss
which would have been covered by such policy, the Company shall deposit
in the
Custodial Account at the time of such loss the amount not otherwise payable
under the blanket policy because of such deductible clause, such amount
to be
deposited from the Company’s funds, without reimbursement therefor. Upon request
of any Purchaser, the Company shall cause to be delivered to such Purchaser
a
certified true copy of such policy and a statement from the insurer thereunder
that such policy shall in no event be terminated or materially modified
without
30 days’ prior written notice to such Purchaser.
Section
4.13 Maintenance
of Fidelity Bond and Errors and Omissions Insurance.
The
Company shall maintain with responsible companies, at its own expense,
a blanket
Fidelity Bond and an Errors and Omissions Insurance Policy, with broad
coverage
on all officers, employees or other persons acting in any capacity requiring
such persons to handle funds, money, documents or papers relating to the
Mortgage Loans (“Company Employees”). Any such Fidelity Bond and Errors and
Omissions Insurance Policy shall be in the form of the Mortgage Banker’s Blanket
Bond and shall protect and insure the Company against losses, including
forgery,
theft, embezzlement, fraud, errors and omissions and negligent acts of
such
Company Employees. Such Fidelity Bond and Errors and Omissions Insurance
Policy
also shall protect and insure the Company against losses in connection
with the
release or satisfaction of a Mortgage Loan without having obtained payment
in
full of the indebtedness secured thereby. No provision of this Section
4.13
requiring such Fidelity Bond and Errors and Omissions Insurance Policy
shall
diminish or relieve the Company from its duties and obligations as set
forth in
this Agreement. The minimum coverage under any such bond and insurance
policy
shall be at least equal to the amounts acceptable to Xxxxxx Xxx or Freddie
Mac.
Upon the request of any Purchaser, the Company shall cause to be delivered
to
such Purchaser a certified true copy of such fidelity bond and insurance
policy
and a statement from the surety and the insurer that such fidelity bond
and
insurance policy shall in no event be terminated or materially modified
without
30 days’ prior written notice to the Purchaser.
-52-
Section
4.14 Inspections.
If
any
Mortgage Loan is more than 45 days delinquent, the Company or its agent
shall
inspect the Mortgaged Property as promptly as practicable after the 45th
day of
delinquency and shall conduct subsequent inspections in accordance with
Accepted
Servicing Practices or as may be required by the primary mortgage guaranty
insurer. The Company shall keep a record of each such inspection and, upon
request, shall provide the Purchaser with such information.
Section
4.15 Restoration
of Mortgaged Property.
The
Company need not obtain the approval of the Purchaser prior to releasing
any
Insurance Proceeds or Condemnation Proceeds to the Mortgagor to be applied
to
the restoration or repair of the Mortgaged Property if such release is
in
accordance with Accepted Servicing Practices. For claims greater than $15,000,
at a minimum the Company shall comply with the following conditions in
connection with any such release of Insurance Proceeds or Condemnation
Proceeds:
|
(i)
|
the
Company shall receive satisfactory independent verification of
completion
of repairs and issuance of any required approvals with respect
thereto;
|
|
(ii)
|
the
Company shall take all steps necessary to preserve the priority
of the
lien of the Mortgage, including, but not limited to requiring
waivers with
respect to mechanics’ and materialmen’s
liens;
|
|
(iii)
|
the
Company shall verify that the Mortgage Loan is not in default;
and
|
|
(iv)
|
pending
repairs or restoration, the Company shall place the Insurance
Proceeds or
Condemnation Proceeds in the Escrow
Account.
|
|
(v)
|
If
the Purchaser is named as an additional loss payee, the Company
is hereby
empowered to endorse any loss draft issued in respect of such
a claim in
the name of the Purchaser.
|
Section
4.16 Claims.
-53-
In
connection with its activities as servicer, the Company agrees to prepare
and
present, on behalf of itself and the Purchaser, claims to the insurer in
a
timely fashion and, in this regard, to take such action as shall be necessary
to
permit recovery respecting a defaulted Mortgage Loan. Pursuant to Section
4.4,
any amounts collected by the Company under any guaranty shall be deposited
in
the Custodial Account, subject to withdrawal pursuant to Section
4.5.
Section
4.17 Title,
Management and Disposition of REO Property.
In
the
event that title to any Mortgaged Property is acquired in foreclosure or
by deed
in lieu of foreclosure, the deed or certificate of sale shall be taken
in the
name of the Company, or in the event the Company 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, or the perfection of the ownership or security
interest of the Purchaser in such REO Property would be adversely effected,
the
deed or certificate of sale shall be taken in the name of such Person or
Persons
as shall be consistent with an Opinion of Counsel obtained by the Company
from
any attorney duly licensed to practice law in the state where the REO Property
is located. The Person or Persons holding such title other than the Purchaser
shall acknowledge in writing that such title is being held as nominee for
the
Purchaser.
The
Company shall manage, conserve, protect and operate each REO Property for
the
Purchaser solely for the purpose of its prompt disposition and sale. The
Company, either itself or through an agent selected by the Company, shall
manage, conserve, protect and operate the REO Property in the same manner
that
it manages, conserves, protects and operates other foreclosed property
for its
own account, and in the same manner that similar property in the same locality
as the REO Property is managed. The Company shall attempt to sell the same
(and
may temporarily rent the same for a period not greater than one year, except
as
otherwise provided below) on such terms and conditions as the Company deems
to
be in the best interest of the Purchaser.
The
Company shall use its best efforts to dispose of the REO Property as soon
as
possible and shall sell such REO Property in any event within one year
after
title has been taken to such REO Property, unless (i) a REMIC election
has not
been made with respect to the arrangement under which the Mortgage Loans
and the
REO Property are held, and (ii) the Company determines, 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 period longer than one
year
is permitted under the foregoing sentence and is necessary to sell any
REO
Property, (i) the Company shall report monthly to the Purchaser as to the
progress being made in selling such REO Property and (ii) if, with the
written
consent of the Purchaser, a purchase money mortgage is taken in connection
with
such sale, such purchase money mortgage (1) shall name the Company as mortgagee,
and (2) shall not be held pursuant to this Agreement, but instead a separate
participation agreement among the Company and Purchaser shall be entered
into
with respect to such purchase money mortgage.
-54-
The
Company shall also maintain on each REO Property fire and hazard insurance
with
extended coverage in amount which is at least equal to the maximum insurable
value of the improvements which are a part of such property, liability
insurance
and, to the extent required and available under the Flood Disaster Protection
Act of 1973, as amended, flood insurance in the amount required
above.
Subject
to 5 days’ prior written notice to the Purchaser, at the address specified
in Section 12.5, of its intent to do so, the disposition of REO Property
shall be carried out by the Company at such price, and upon such terms
and
conditions, as the Company deems to be in the best interests of the Purchaser.
The proceeds of sale of the REO Property shall be promptly deposited in
the
Custodial Account. As soon as practical thereafter the expenses of such
sale
shall be paid and the Company shall reimburse itself for any related
unreimbursed Servicing Advances, unpaid Servicing Fees and unreimbursed
advances
made pursuant to Section 5.3. On the Remittance Date immediately following
the
Principal Prepayment Period in which such sale proceeds are received the
net
cash proceeds of such sale remaining in the Custodial Account shall be
distributed to the Purchaser.
The
Company shall withdraw the Custodial Account funds necessary for the proper
operation management and maintenance of the REO Property, including the
cost of
maintaining any hazard insurance pursuant to Section 4.10 and the fees
of any
managing agent of the Company, or the Company itself. The Company shall
make
monthly distributions on each Remittance Date to the Purchaser of the net
cash
flow from the REO Property (which shall equal the revenues from such REO
Property net of the expenses described in the Section 4.16 and of any reserves
reasonably required from time to time to be maintained to satisfy anticipated
liabilities for such expenses).
Section
4.18 Real
Estate Owned Reports.
Together
with the statement furnished pursuant to Section 5.2, the Company shall
furnish
to the Purchaser on or before the Remittance Date each month a statement
with
respect to any REO Property covering the operation of such REO Property
for the
previous month and the Company’s efforts in connection with the sale of such REO
Property and any rental of such REO Property incidental to the sale thereof
for
the previous month. That statement shall be accompanied by such other
information as the Purchaser shall reasonably request.
Section
4.19 Liquidation
Reports.
Upon
the
foreclosure sale of any Mortgaged Property or the acquisition thereof by
the
Purchaser pursuant to a deed in lieu of foreclosure, the Company shall
submit to
the Purchaser a liquidation report with respect to such Mortgaged
Property.
Section
4.20 Reports
of Foreclosures and Abandonments of Mortgaged Property.
-55-
Following
the foreclosure sale or abandonment of any Mortgaged Property, the Company
shall
report such foreclosure or abandonment as required pursuant to Section
6050J of
the Code. The Company shall file information reports with respect to the
receipt
of mortgage interest received in a trade or business and information returns
relating to cancellation of indebtedness income with respect to any Mortgaged
Property as required by the Code. Such reports shall be in form and substance
sufficient to meet the reporting requirements imposed by the Code.
Section
4.21 Fair
Credit Reporting Act.
The
Company, in its capacity as servicer for each Mortgage Loan, agrees to
fully
furnish, in accordance with the Fair Credit Reporting Act and its implementing
regulations, accurate and complete information (e.g.,
favorable and unfavorable) on its borrower credit files to Equifax, Experian
and
Trans Union Credit Information Company (three of the credit repositories),
on a
monthly basis.
Section
4.22 Establishment
of and Deposits to Subsidy Account.
(a) The
Company shall segregate and hold all Subsidy Funds collected and received
pursuant to the Subsidy Loans separate and apart from any of its own funds
and
general assets and shall establish and maintain one or more Subsidy Accounts,
in
the form of time deposit or demand accounts, titled “Xxxxx Fargo Bank, N.A., in
trust for the Purchaser, its successors or assigns, and/or subsequent purchasers
of Residential Mortgage Loans, and various Mortgagors.” The Subsidy Accounts
shall be established with a Qualified Depository, in a manner which shall
provide maximum available insurance thereunder. Upon request of the Purchaser
and within ten (10) days thereof, the Company shall provide the Purchaser
with
written confirmation of the existence of such Subsidy Account. Funds deposited
in the Subsidy Account may be drawn on by the Company in accordance with
this
4.22.
(b) The
Company shall, from time to time, withdraw funds from the Subsidy Account
for
the following purposes:
(i) on
or
prior to each Remittance Date, to deposit in the Custodial Account in the
amounts and in the manner provided for in Section 4.4(12);
(ii) to
transfer funds to another Qualified Depository in accordance with Section
4.9
hereof;
(iii) to
withdraw funds deposited in error; and
(iv) to
clear
and terminate the Subsidy Account upon the termination of this
Agreement.
(c) Notwithstanding
anything to the contrary elsewhere in this Agreement, the Company may employ
the
Escrow Account as the Subsidy Account to the extent that the Company can
separately identify any Subsidy Funds deposited therein.
-56-
(d) If
the
Mortgagor on a Subsidy Mortgage Loan defaults on such Mortgage Loan during
the
Subsidy Period and the Mortgaged Property securing such Subsidy Mortgage
Loan is
sold in the liquidation thereof (either by the Company or the insurer under
any
related PMI Policy) the Company shall, on the Remittance Date following
the date
upon which Liquidation Proceeds or REO Disposition proceeds are received
with
respect to any such Subsidy Mortgage Loan, distribute to the Purchaser
all
remaining Subsidy Funds for such Mortgage Loan then remaining in the Subsidy
Account. Pursuant to the terms of each Subsidy Agreement, any amounts
distributed to the Purchaser in accordance with the preceding sentence
will be
applied to reduce the outstanding principal balance of the related Subsidy
Mortgage Loan. If a Mortgagor on a Subsidy Mortgage Loan prepays such Mortgage
Loan in it entirety during the related Subsidy Period, the Company shall
be
required to withdraw from the Subsidy Account any Subsidy Funds remaining
in the
Subsidy Account with respect to such Subsidy Mortgage Loan in accordance
with
the related Subsidy Agreement. If a principal prepayment by a Mortgagor
on a
Subsidy Mortgage Loan during the related Subsidy Period, together with
any
Subsidy Funds then remaining in the Subsidy Account related to such Subsidy
Mortgage Loan, would result in a principal prepayment of the entire unpaid
principal balance of the Subsidy Mortgage Loan, the Company shall distribute
to
the Purchaser on the Remittance Date occurring in the month immediately
succeeding the month in which such Principal Prepayment is received, all
Subsidy
Funds related to such Mortgage Loan so remaining in the Subsidy Account,
together with any amounts required to be deposited into the Custodial
Account.
Section
4.23 Establishment
of and Deposits to Buydown Account.
(a) The
Company shall segregate and hold all Buydown Funds collected and received
pursuant to the Buydown Loans separate and apart from any of its own funds
and
general assets and shall establish and maintain one or more Buydown Accounts,
in
the form of time deposit or demand accounts, titled “Xxxxx Fargo Bank, N.A., in
trust for the Purchaser, its successors or assigns, and/or subsequent purchasers
of Residential Mortgage Loans, and various Mortgagors.” The Buydown Accounts
shall be established with a Qualified Depository, in a manner which shall
provide maximum available insurance thereunder. Upon request of the Purchaser
and within ten (10) days thereof, the Company shall provide the Purchaser
with
written confirmation of the existence of such Buydown Account. Funds deposited
in the Buydown Account may be drawn on by the Company in accordance with
this
4.23.
(b) The
Company shall, from time to time, withdraw funds from the Buydown Account
for
the following purposes:
(i) on
or
prior to each Remittance Date, to deposit in the Custodial Account in the
amounts and in the manner provided for in Section 4.4(11);
(ii) to
transfer funds to another Qualified Depository in accordance with Section
4.9
hereof;
(iii) to
withdraw funds deposited in error; and
(iv) to
clear
and terminate the Buydown Account upon the termination of this
Agreement.
-57-
(c) Notwithstanding
anything to the contrary elsewhere in this Agreement, the Company may employ
the
Escrow Account as the Buydown Account to the extent that the Company can
separately identify any Buydown Funds deposited therein.
If
the
Mortgagor on a Buydown Mortgage Loan defaults on such Mortgage Loan during
the
Buydown Period and the Mortgaged Property securing such Buydown Mortgage
Loan is
sold in the liquidation thereof (either by the Company or the insurer under
any
related PMI Policy) the Company shall, on the Remittance Date following
the date
upon which Liquidation Proceeds or REO Disposition proceeds are received
with
respect to any such Buydown Mortgage Loan, distribute to the Purchaser
all
remaining Buydown Funds for such Mortgage Loan then remaining in the Buydown
Account. Pursuant to the terms of each Buydown Agreement, any amounts
distributed to the Purchaser in accordance with the preceding sentence
will be
applied to reduce the outstanding principal balance of the related Buydown
Mortgage Loan. If a Mortgagor on a Buydown Mortgage Loan prepays such Mortgage
Loan in it entirety during the related Buydown Period, the Company shall
be
required to withdraw from the Buydown Account any Buydown Funds remaining
in the
Buydown Account with respect to such Buydown Mortgage Loan in accordance
with
the related Buydown Agreement. If a principal prepayment by a Mortgagor
on a
Buydown Mortgage Loan during the related Buydown Period, together with
any
Buydown Funds then remaining in the Buydown Account related to such Buydown
Mortgage Loan, would result in a principal prepayment of the entire unpaid
principal balance of the Buydown Mortgage Loan, the Company shall distribute
to
the Purchaser on the Remittance Date occurring in the month immediately
succeeding the month in which such Principal Prepayment is received, all
Buydown
Funds related to such Mortgage Loan so remaining in the Buydown Account,
together with any amounts required to be deposited into the Custodial
Account.
Section
4.24 Letter
of Credit Compliance.
Notwithstanding
any other provision of this Agreement, the Company shall comply with all
the
requirements of any Letter of Credit so as to assure the full benefit of
such
Letter of Credit to the Purchaser.
Section
4.25 Letter
of Credit Draws.
The
Company shall take all steps necessary to make draws under any Letter of
Credit
in accordance with the provisions thereof and shall draw on each Letter
of
Credit all amounts payable thereunder within the time frame required by
the
Letter of Credit or such shorter time within which the Company can effect
such
draw (not to exceed thirty (30) calendar days) of (i) the date the related
Pledged Asset Mortgage Loan becomes 90 days or more delinquent and (ii) the
receipt of notice of non-renewal from the Pledge Holder at any time prior
to the
date that all amounts owed under the related Pledged Asset Mortgage Loan
are
less than or equal to 80% of the Appraised Value of the related Mortgaged
Property. The Company shall notify the Purchaser promptly in writing upon
receipt of notice from the Pledge Holder of non-renewal of any Letter of
Credit.
Upon receipt of any amounts as a result of a draw on a Letter of Credit
because
of the non-renewal of such Letter of Credit or as a result of the Pledged
Asset
Mortgage Loan continuing in default for 90 or more days, the Company shall
deposit such amounts in the Custodial Account and such amount shall be
treated
as a payment of principal.
-58-
Section
4.26 Assignment
of the Letter of Credit.
Notwithstanding
anything to the contrary in this Agreement (including, without limitation,
the
termination or transfer of the servicing rights and/or obligations of the
Company pursuant to Articles X and XI hereof), the Company, as
beneficiary under any Non-Assigned Letters of Credit, shall transfer and
assign,
at no cost to the Purchaser, each Non-Assigned Letter of Credit to the
Purchaser
in accordance with the provisions thereof within ten (10) days of such
termination or transfer. In addition, the Company shall forward within
one (1) Business Day of receipt any notice received of non-renewal of any
Letter of Credit. Any funds received by the Company from draws on the
Non-Assigned Letters of Credit after the Company is no longer the servicer
hereunder shall be remitted by the Company to the successor servicer for
deposit
into the Custodial Account.
Section
4.27 Pledge
Holder Defaults.
Upon
a
default under the Letter of Credit by the Pledge Holder, the Company shall
take
possession of the assets securing the Letter of Credit and shall deposit
such
assets or the proceeds thereof in the Custodial Account and apply them
as a
prepayment of the related Pledged Asset Mortgage Loan. If such default
described
in the prior sentence occurs at any time that the Company is no longer
the
servicer of the related Pledged Asset Mortgage Loan, the Company shall,
upon
knowledge of such default or notice from the successor servicer of such
default
with respect to any Non-Assigned Letter of Credit forward such proceeds
to the
successor servicer for deposit into the Custodial Account.
Section
4.28 Use
of
Subservicers and Subcontractors.
The
Company shall not hire or otherwise utilize the services of any Subservicer
to
fulfill any of the obligations of the Company under this Agreement or any
Reconstitution Agreement unless the Company complies with the provisions
of
paragraph (a) of this Section 4.28. The Company shall not hire or otherwise
utilize the services of any Subcontractor, and shall not permit any Subservicer
to hire or otherwise utilize the services of any Subcontractor, to fulfill
any
of the obligations of the Company under this Agreement or any Reconstitution
Agreement unless the Company complies with the provisions of paragraph (b) of
this Section 4.28.
(a) It
shall
not be necessary for the Company to seek the consent of the Purchaser or
any
Depositor to the utilization of any Subservicer. The Company shall cause
any
Subservicer used by the Company (or by any Subservicer) for the benefit
of the
Purchaser and any Depositor to comply with the provisions of this Section
4.28
and with Sections 6.4, 6.6, 9.1(g)(iii), 9.1(g)(v), 9.1(g)(vi) and 9.1(h)
of
this Agreement to the same extent as if such Subservicer were the Company,
and
to provide the information required with respect to such Subservicer under
Section 9.1(g)(iv) of this Agreement. The Company shall be responsible
for
obtaining from each Subservicer and delivering to the Purchaser and any
Depositor any servicer compliance statement required to be delivered by
such
Subservicer under Section 6.4 and any assessment of compliance and attestation
required to be delivered by such Subservicer under Section 6.6 and any
certification required to be delivered to the Person that will be responsible
for signing the Sarbanes Certification under Section 6.6 as and when required
to
be delivered.
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(b) It
shall
not be necessary for the Company to seek the consent of the Purchaser or
any
Depositor to the utilization of any Subcontractor. The Company shall promptly
upon request provide to the Purchaser and any Depositor (or any designee
of the
Depositor, such as a master servicer or administrator) a written description
(in
form and substance satisfactory to the Purchaser and such Depositor) of
the role
and function of each Subcontractor utilized by the Company or any Subservicer,
specifying (i) the identity of each such Subcontractor, (ii) which (if
any) of
such Subcontractors are “participating in the servicing function” within the
meaning of Item 1122 of Regulation AB, and (iii) which elements of the
Servicing
Criteria will be addressed in assessments of compliance provided by each
Subcontractor identified pursuant to clause (ii) of this paragraph.
As
a
condition to the utilization of any Subcontractor determined to be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, the Company shall cause any such Subcontractor used by the
Company (or by any Subservicer) for the benefit of the Purchaser and any
Depositor to comply with the provisions of Sections 6.6 and 9.1(f) of this
Agreement to the same extent as if such Subcontractor were the Company.
The
Company shall be responsible for obtaining from each Subcontractor and
delivering to the Purchaser and any Depositor any assessment of compliance
and
attestation required to be delivered by such Subcontractor under Section
6.6, in
each case as and when required to be delivered.
ARTICLE
V
PAYMENTS
TO PURCHASER
Section
5.1 Remittances.
On
each
Remittance Date the Company shall remit by wire transfer of immediately
available funds to the Purchaser (a) all amounts deposited in the Custodial
Account as of the close of business on the Determination Date (net of charges
against or withdrawals from the Custodial Account pursuant to Section 4.5),
plus
(b) all
amounts, if any, which the Company is obligated to distribute pursuant
to
Section 5.3, minus
(c) any
amounts attributable to Principal Prepayments received after the applicable
Principal Prepayment Period which amounts shall be remitted on the following
Remittance Date, together with any additional interest required to be deposited
in the Custodial Account in connection with such Principal Prepayment in
accordance with Section 4.4(viii), minus
(d) any
amounts attributable to Monthly Payments collected but due on a Due Date
or
Dates subsequent to the first day of the month of the Remittance Date,
and
(e) minus any amounts attributable to Buydown Funds relating to a future
Due Period being held in the Custodial Account, which amounts shall be
remitted
on the Remittance Date next succeeding the Due Period for such
amounts.
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All
cash
flows from prepayment penalties shall be passed through to the Purchaser
and
shall not be waived by the Company, except pursuant to
Section 4.1.
With
respect to any remittance received by the Purchaser after the date on which
such
payment was due, the Company shall pay to the Purchaser interest on any
such
late payment at an annual rate equal to the Prime Rate, adjusted as of
the date
of each charge, 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
Company on the date such late payment is made and shall cover the period
commencing with the day following such second Business Day and ending with
the
Business Day on which such payment is made, both inclusive. Such interest
shall
be remitted along with the distribution payable on the next succeeding
Remittance Date. The payment by the Company of any such interest shall
not be
deemed an extension of time for payment or a waiver of any Event of Default
by
the Company.
Section
5.2 Statements
to Purchaser.
Not
later
than the Remittance Advice Date, the Company shall furnish to the Purchaser
a
Monthly Remittance Advice, including the information set forth in Exhibit
E
attached hereto, with a trial balance report attached thereto, as to the
period
ending on the last day of the preceding month, in a form to be agreed upon
by
the Purchaser and the Company.
Section
5.3 Monthly
Advances by Company.
On
the
Business Day immediately preceding each Remittance Date, the Company shall
deposit in the Custodial Account from its own funds or from amounts held
for
future distribution an amount equal to all Monthly Payments (with interest
adjusted to the Mortgage Loan Remittance Rate) which were due on the Mortgage
Loans during the applicable Due Period and which were delinquent at the
close of
business on the Determination Date immediately preceding such Remittance
Date or
which were deferred pursuant to Section 4.1. Any amounts held for future
distribution and so used shall be replaced by the Company by deposit in
the
Custodial Account on or before any future Remittance Date if funds in the
Custodial Account on such Remittance Date shall be less than payments to
the
Purchaser required to be made on such Remittance Date. Notwithstanding
the
foregoing, the Company shall not be permitted to make any advances from
amounts
held for future distribution, and instead shall be required to make all
advances
from its own funds, unless the Company, its parent, or their respective
successors hereunder shall have a long-term credit rating of at least “A” by
Fitch, Inc. (doing business as Fitch Ratings), “A” by Standard & Poor’s
Ratings Group, a division of The XxXxxx-Xxxx Companies, Inc., and “A2” by
Xxxxx’x Investors Service, Inc. The Company’s obligation to make such Monthly
Advances as to any Mortgage Loan will continue through the last Monthly
Payment
due prior to the payment in full of the Mortgage Loan, or through the earlier
of: (i) the last Remittance Date prior to the Remittance Date for the
distribution of all Liquidation Proceeds and other payments or recoveries
(including Insurance Proceeds and Condemnation Proceeds) with respect to
the
Mortgage Loan and (ii) the Remittance Date prior to the date the Mortgage
Loan
is converted to REO Property, provided however,
that if
requested by a Rating Agency in connection with Securitization Transaction,
the
Company shall be obligated to make such advances through the Remittance
Date
prior to the date on which cash is received in connection with the liquidation
of REO Property; provided,
however,
that
such obligation shall cease if the Company determines, in its sole reasonable
opinion, that advances with respect to such Mortgage Loan are non-recoverable
by
the Company from Liquidation Proceeds, Insurance Proceeds, Condemnation
Proceeds, or otherwise with respect to a particular Mortgage Loan. In the
event
that the Company determines that any such advances are non-recoverable,
the
Company shall provide the Purchaser with a certificate signed by two officers
of
the Company evidencing such determination.
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ARTICLE
VI
GENERAL
SERVICING PROCEDURES
Section
6.1 Transfers
of Mortgaged Property.
The
Company shall use its best efforts to enforce any “due-on-sale” provision
contained in any Mortgage or Mortgage Note and to deny assumption by the
Person
to whom the Mortgaged Property has been or is about to be sold whether
by
absolute conveyance or by contract of sale, and whether or not the Mortgagor
remains liable on the Mortgage and the Mortgage Note. When the Mortgaged
Property has been conveyed by the Mortgagor, the Company shall, to the
extent it
has knowledge of such conveyance, exercise its rights to accelerate the
maturity
of such Mortgage Loan under the “due-on-sale” clause applicable thereto,
provided,
however,
that
the Company shall not exercise such rights if prohibited by law from doing
so.
If
the
Company reasonably believes it is unable under Applicable Law to enforce
such
“due-on-sale” clause, the Company shall enter into (i) an assumption and
modification agreement with the Person to whom such property has been conveyed,
pursuant to which such Person becomes liable under the Mortgage Note and
the
original Mortgagor remains liable thereon or (ii) in the event the Company
is
unable under Applicable Law to require that the original Mortgagor remain
liable
under the Mortgage Note and the Company has the prior consent of the primary
mortgage guaranty insurer, a substitution of liability agreement with the
purchaser of the Mortgaged Property pursuant to which the original Mortgagor
is
released from liability and the purchaser of the Mortgaged Property is
substituted as Mortgagor and becomes liable under the Mortgage Note. If
an
assumption fee is collected by the Company for entering into an assumption
agreement the fee will be retained by the Company as additional servicing
compensation. In connection with any such assumption, neither the Mortgage
Interest Rate borne by the related Mortgage Note, the term of the Mortgage
Loan,
the outstanding principal amount of the Mortgage Loan nor any other material
terms shall be changed without Purchaser’s consent.
To
the
extent that any Mortgage Loan is assumable, the Company shall inquire diligently
into the credit worthiness of the proposed transferee, and shall use the
underwriting criteria for approving the credit of the proposed transferee
which
are used with respect to underwriting mortgage loans of the same type as
the
Mortgage Loan. If the credit of the proposed transferee does not meet such
underwriting criteria, the Company diligently shall, to the extent permitted
by
the Mortgage or the Mortgage Note and by Applicable Law, accelerate the
maturity
of the Mortgage Loan.
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Section
6.2 Satisfaction
of Mortgages and Release of Custodial Mortgage Files.
Upon
the
payment in full of any Mortgage Loan, the Company shall notify the Purchaser
in
the Monthly Remittance Advice as provided in Section 5.2, and may request
the
release of any Mortgage Loan Documents. If such Mortgage Loan is a MERS
Mortgage
Loan, the Company 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.
If
the
Company satisfies or releases a Mortgage without first having obtained
payment
in full of the indebtedness secured by the Mortgage or should the Company
otherwise prejudice any rights the Purchaser may have under the mortgage
instruments, upon written demand of the Purchaser, the Company shall repurchase
the related Mortgage Loan at the Repurchase Price by deposit thereof in
the
Custodial Account within 2 Business Days of receipt of such demand by the
Purchaser. The Company shall maintain the Fidelity Bond and Errors and
Omissions
Insurance Policy as provided for in Section 4.12 insuring the Company against
any loss it may sustain with respect to any Mortgage Loan not satisfied
in
accordance with the procedures set forth herein.
Section
6.3 Servicing
Compensation.
As
compensation for its services hereunder, the Company shall be entitled
to
withdraw from the Custodial Account or to retain from interest payments
on the
Mortgage Loans the amount of its Servicing Fee. The Servicing Fee shall
be
payable monthly and shall be computed on the basis of the unpaid principal
balance and for the period respecting which any related interest payment
on a
Mortgage Loan is received. The obligation of the Purchaser to pay the Servicing
Fee is limited to, and payable solely from, the interest portion of such
Monthly
Payments.
Additional
servicing compensation in the form of assumption fees, to the extent provided
in
Section 6.1, and late payment charges shall be retained by the Company
to the
extent not required to be deposited in the Custodial Account. The Company
shall
be required to pay all expenses incurred by it in connection with its servicing
activities hereunder and shall not be entitled to reimbursement thereof
except
as specifically provided for herein.
Section
6.4 Annual
Statement as to Compliance.
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(i) The
Company shall deliver to the Purchaser on or before February 28, 2006, an
Officer’s Certificate, stating that (x) a review of the activities of the
Company during the preceding calendar year and of performance under this
Agreement or similar agreements has been made under such officer’s supervision,
and (y) to the best of such officer’s knowledge, based on such review, the
Company has fulfilled all its obligations under this Agreement throughout
such
year, or, if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officer and the nature and status
thereof and the action being taken by the Company to cure such
default.
(ii) On
or
before March 1 of each calendar year, commencing in 2007, the Company shall
deliver to the Purchaser and any Depositor a statement of compliance addressed
to the Purchaser and such Depositor and signed by an authorized officer
of the
Company, to the effect that (a) a review of the Company’s activities during the
immediately preceding calendar year (or applicable portion thereof) and
of its
performance under this Agreement and any applicable Reconstitution Agreement
during such period has been made under such officer’s supervision, and (b) to
the best of such officers’ knowledge, based on such review, the Company has
fulfilled all of its obligations under this Agreement and any applicable
Reconstitution Agreement in all material respects throughout such calendar
year
(or applicable portion thereof) or, if there has been a failure to fulfill
any
such obligation in any material respect, specifically identifying each
such
failure known to such officer and the nature and the status
thereof.
Section
6.5 Annual
Independent Public Accountants’ Servicing Report.
Except
with respect to Securitization Transactions occurring on or after January
1,
2006, on or before February 28, of each year beginning February 28, 2006,
the
Company, 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 each Purchaser to the effect that such firm has
examined
certain documents and records relating to the servicing of the mortgage
loans
similar in nature and that such firm is of the opinion that the provisions
of
this or similar agreements have been complied with, and that, on the basis
of
such examination conducted substantially in compliance with the Uniform
Single
Attestation Program for Mortgage Bankers, nothing has come to their attention
which would indicate that such servicing has not been conducted in compliance
therewith, 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. By providing the Purchaser a copy of a Uniform Single Attestation
Program Report from their independent public accountant’s on an annual basis,
Company shall be considered to have fulfilled its obligations under this
Section 6.5.
Section
6.6 Report
on Assessment of Compliance and Attestation.
With
respect to any Mortgage Loans that are the subject of a Securitization
Transaction occurring on or after January 1, 2006, on or before March 1
of each
calendar year, commencing in 2007, the Company shall:
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(i)
|
deliver
to the Purchaser and any Depositor a report (in form and substance
reasonably satisfactory to the Purchaser and such Depositor)
regarding the
Company’s assessment of compliance with the Servicing Criteria during
the
immediately preceding calendar year, as required under Rules
13a-18 and
15d-18 of the Exchange Act and Item 1122 of Regulation AB. Such
report
shall be addressed to the Purchaser and such Depositor and signed
by an
authorized officer of the Company and shall address each of the
Servicing
Criteria specified substantially in the form of Exhibit I hereto
delivered
to the Purchaser at the time of any Securitization
Transaction;
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(ii)
|
deliver
to the Purchaser and any Depositor a report of a registered public
accounting firm reasonably acceptable to the Purchaser and such
Depositor
that attests to, and reports on, the assessment of compliance
made by the
Company and delivered pursuant to the preceding paragraph. Such
attestation shall be in accordance with Rules 1-02(a)(3) and
2-02(g) of
Regulation S-X under the Securities Act and the Exchange Act;
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|
(iii)
|
cause
each Subservicer and each Subcontractor, determined by the Company
pursuant to Section 4.28(b) to be “participating in the servicing
function” within the meaning of Item 1122 of Regulation AB, to deliver
to
the Purchaser and any Depositor an assessment of compliance and
accountants’ attestation as and when provided in paragraphs (i) and (ii)
of this Section 6.6; and
|
|
(iv)
|
deliver
to the Purchaser, any Depositor and any other Person that will
be
responsible for signing the certification (a “Sarbanes Certification”)
required by Rules 13a-14(d) and 15d-14(d) under the Exchange
Act (pursuant
to Section 302 of the Xxxxxxxx-Xxxxx Act of 2002) on behalf of
an
asset-backed issuer with respect to a Securitization Transaction
a
certification in the form attached hereto as Exhibit
J.
|
The
Company acknowledges that the parties identified in clause (iv) above may
rely
on the certification provided by the Company pursuant to such clause in
signing
a Sarbanes Certification and filing such with the Commission.
Each
assessment of compliance provided by a Subservicer pursuant to Section
6.6(i)
shall address each of the Servicing Criteria specified substantially in
the form
of Exhibit D hereto delivered to the Purchaser concurrently with the execution
of this Agreement or, in the case of a Subservicer subsequently appointed
as
such, on or prior to the date of such appointment. An assessment of compliance
provided by a Subcontractor pursuant to Section 6.6(iii) need not address
any
elements of the Servicing Criteria other than those specified by the Company
pursuant to Section 4.28.
Section
6.7 Remedies.
(i) Any
failure by the Company, any Subservicer, any Subcontractor or any Third-Party
Originator to deliver any information, report, certification, accountants’
letter or other material when and as required under Article IX, Section
4.28,
Section 6.4, Section 6.5 or Section 6.6, or any breach by the Company of
a
representation or warranty set forth in Section 9.1(g)(vi)(A), or in a
writing
furnished pursuant to Section 9.1(g)(vi)(B) and made as of a date prior
to the
closing date of the related Securitization Transaction, to the extent that
such
breach is not cured by such closing date, or any breach by the Company
of a
representation or warranty in a writing furnished pursuant to Section
9.1(g)(vi)(B) to the extent made as of a date subsequent to such closing
date,
shall, except as provided in sub-clause (ii) of this Section, immediately
and
automatically, without notice or grace period, constitute an Event of Default
with respect to the Company under this Agreement and any applicable
Reconstitution Agreement, and shall entitle the Purchaser or Depositor,
as
applicable, in its sole discretion to terminate the rights and obligations
of
the Company as servicer under this Agreement and/or any applicable
Reconstitution Agreement without payment (notwithstanding anything in this
Agreement or any applicable Reconstitution Agreement to the contrary) of
any
compensation to the Company; provided that to the extent that any provision
of
this Agreement and/or any applicable Reconstitution Agreement expressly
provides
for the survival of certain rights or obligations following termination
of the
Company as servicer, such provision shall be given effect.
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(ii) Any
failure by the Company, any Subservicer or any Subcontractor to deliver
any
information, report, certification or accountants’ letter when and as required
under Section 6.4, Section 6.5 or Section 6.6, including any failure by
the
Company to identify any Subcontractor “participating in the servicing function”
within the meaning of Item 1122 of Regulation AB, which continues unremedied
for
ten (10) calendar days after the date on which such information, report,
certification or accountants’ letter was required to be delivered shall
constitute an Event of Default with respect to the Company under this Agreement
and any applicable Reconstitution Agreement, and shall entitle the Purchaser
or
Depositor, as applicable, in its sole discretion to terminate the rights
and
obligations of the Company under this Agreement and/or any applicable
Reconstitution Agreement without payment (notwithstanding anything in this
Agreement to the contrary) of any compensation to the Company; provided
that to
the extent that any provision of this Agreement and/or any applicable
Reconstitution Agreement expressly provides for the survival of certain
rights
or obligations following termination of the Company as servicer, such provision
shall be given effect.
(iii) The
Company shall promptly reimburse the Purchaser (or any designee of the
Purchaser, such as a master servicer) and any Depositor, as applicable,
for all
reasonable expenses incurred by the Purchaser (or such designee) or such
Depositor, as such are incurred, in connection with the termination of
the
Company as servicer and the transfer of servicing of the Mortgage Loans
to a
successor servicer. The provisions of this paragraph shall not limit whatever
rights the Purchaser or any Depositor may have under other provisions of
this
Agreement and/or any applicable Reconstitution Agreement or otherwise,
whether
in equity or at law, such as an action for damages, specific performance
or
injunctive relief.
Section
6.8 Right
to Examine Company Records.
The
Purchaser, or its designee, shall have the right to examine and audit any
and
all of the books, records, or other information of the Company, whether
held by
the Company or by another on its behalf, with respect to or concerning
this
Agreement or the Mortgage Loans, during business hours or at such other
times as
may be reasonable under applicable circumstances, upon reasonable advance
notice. The Purchaser shall pay its own expenses associated with such
examination.
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Section
6.9 Compliance
with REMIC Provisions.
If
a
REMIC election has been made with respect to the arrangement under which
the
Mortgage Loans and REO Property are held, the Company shall not take any
action
or fail to take any action or fail to cause the REMIC to take any action,
that,
under the REMIC Provisions, if taken or not taken, as the case may be,
could (i)
endanger the status of the REMIC as a REMIC or (ii) result in the imposition
of
a tax upon the REMIC (including but not limited to the tax on “prohibited
transactions” as defined Section 860F(a)(2) of the Code and the tax on
“contributions” to a REMIC set forth in Section 860G(d) of the Code) unless the
Company has received an Opinion of Counsel (at the expense of the party
seeking
to take such action) to the effect that the contemplated action will not
endanger such REMIC status or result in the imposition of any such
tax.
ARTICLE
VII
COMPANY
TO COOPERATE
Section
7.1 Provision
of Information.
During
the term of this Agreement, the Company shall furnish to the Purchaser
such
periodic, special, or other reports or information, and copies or originals
of
any documents contained in the Servicing File for each Mortgage Loan provided
for herein. All other special reports or information not provided for herein
as
shall be necessary, reasonable, or appropriate with respect to the Purchaser
or
any regulatory agency will be provided at the Purchaser’s expense. All such
reports, documents or information shall be provided by and in accordance
with
all reasonable instructions and directions which the Purchaser may
give.
The
Company shall execute and deliver all such instruments and take all such
action
as the Purchaser may reasonably request from time to time, in order to
effectuate the purposes and to carry out the terms of this
Agreement.
Section
7.2 Financial
Statements; Servicing Facility.
In
connection with marketing the Mortgage Loans, the Purchaser may make available
to a prospective Purchaser a Consolidated Statement of Operations of the
Company
for the most recently completed two fiscal years for which such a statement
is
available, as well as a Consolidated Statement of Condition at the end
of the
last two fiscal years covered by such Consolidated Statement of Operations.
The
Company, upon request, also shall make available any comparable interim
statements to the extent any such statements have been prepared by or on
behalf
of the Company (and are available upon request to members or stockholders
of the
Company or to the public at large).
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The
Company also shall make available to Purchaser or prospective Purchaser
a
knowledgeable financial or accounting officer for the purpose of answering
questions respecting recent developments affecting the Company or the financial
statements of the Company, and to permit any prospective purchaser to inspect
the Company’s servicing facilities for the purpose of satisfying such
prospective purchaser that the Company has the ability to service the Mortgage
Loans as provided in this Agreement.
ARTICLE
VIII
THE
COMPANY
Section
8.1 Indemnification;
Third Party Claims.
The
Company shall indemnify the Purchaser and hold it harmless against any
and all
claims, losses, damages, penalties, fines, forfeitures, reasonable and
necessary
legal fees and related costs, judgments, and any other costs, fees and
expenses
that the Purchaser may sustain in any way related to the failure of the
Company
to perform its duties and service the Mortgage Loans in strict compliance
with
the terms of this Agreement. The Company immediately shall notify the Purchaser
if a claim is made by a third party with respect to this Agreement or the
Mortgage Loans, assume (with the prior written consent of the Purchaser)
the
defense of any such claim and pay all expenses in connection therewith,
including counsel fees, and promptly pay, discharge and satisfy any judgment
or
decree which may be entered against it or the Purchaser in respect of such
claim. The Company shall follow any written instructions received from
the
Purchaser in connection with such claim. The Purchaser promptly shall reimburse
the Company for all costs, fees or expenses advanced by it pursuant to
this
paragraph except when the claim in any way results from, relates to or
arises
out of any liability, obligation, act or omission of the Company, including
without limitation, the Company’s indemnification obligation under Section 3.3
and this Section 8.1, any repurchase obligation of the Company hereunder
including Sections 2.3, 3.3 and 6.2, or the failure of the Company to service
and administer the Mortgage Loans and otherwise perform its obligations
hereunder in strict compliance with the terms of this Agreement.
Section
8.2 Merger
or Consolidation of the Company.
The
Company shall keep in full effect its existence, rights and franchises
and shall
obtain and preserve its qualification to do business in each jurisdiction
in
which such qualification is or shall be necessary to protect the validity
and
enforceability of this Agreement or any of the Mortgage Loans and to perform
its
duties under this Agreement.
Any
Person into which the Company may be merged or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Company
shall be a party, or any Person succeeding to the business of the Company,
shall
be the successor of the Company hereunder, without the execution or filing
of
any paper or any further act on the part of any of the parties hereto,
anything
herein to the contrary notwithstanding, provided,
however,
that
the successor or surviving Person shall be an institution which is a Xxxxxx
Xxx/Freddie Mac-approved company in good standing. Furthermore, in the
event the
Company transfers or otherwise disposes of all or substantially all of
its
assets to an affiliate of the Company, such affiliate shall satisfy the
condition above, and shall also be fully liable to the Purchaser for all
of the
Company’s obligations and liabilities hereunder.
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Section
8.3 Limitation
on Liability of Company and Others.
Neither
the Company nor any of the directors, officers, employees or agents of
the
Company shall be under any liability to the Purchaser for any action taken
or
for refraining from the taking of any action in good faith pursuant to
this
Agreement, or for errors in judgment, provided,
however,
that
this provision shall not protect the Company or any such Person against
any
breach of warranties or representations made herein, or failure to perform
its
obligations in strict compliance with any standard of care set forth in
this
Agreement or any other liability which would otherwise be imposed under
this
Agreement. The Company and any director, officer, employee or agent of
the
Company may rely in good faith on any document of any kind prima facie
properly
executed and submitted by any Person respecting any matters arising hereunder.
The Company shall not be under any obligation to appear in, prosecute or
defend
any legal action which is not incidental to its duties to service the Mortgage
Loans in accordance with this Agreement and which in its opinion may involve
it
in any expense or liability, provided,
however,
that
the Company may, with the consent of the Purchaser, undertake any such
action
which it may deem necessary or desirable in respect to this Agreement and
the
rights and duties of the parties hereto. In such event, the Company shall
be
entitled to reimbursement from the Purchaser of the reasonable legal expenses
and costs of such action.
Section
8.4 Limitation
on Resignation and Assignment by Company.
The
Purchaser has entered into this Agreement with the Company and subsequent
Purchasers will purchase the Mortgage Loans in reliance upon the independent
status of the Company, and the representations as to the adequacy of its
servicing facilities, plant, personnel, records and procedures, its integrity,
reputation and financial standing, and the continuance thereof. Therefore,
the
Company shall neither assign this Agreement or the servicing rights hereunder,
or sell or otherwise dispose of all of its property or assets without the
prior
written consent of the Purchaser, which consent shall not be unreasonably
withheld.
The
Company shall not resign from the obligations and duties hereby imposed
on it
except by mutual consent of the Company and the Purchaser or upon the
determination that its duties hereunder are no longer permissible under
Applicable Law and such incapacity cannot be cured by the Company. Any
such
determination permitting the resignation of the Company shall be evidenced
by an
Opinion of Counsel to such effect delivered to the Purchaser which Opinion
of
Counsel shall be in form and substance acceptable to the Purchaser. No
such
resignation shall become effective until a successor shall have assumed
the
Company’s responsibilities and obligations hereunder in the manner provided in
Section 12.1.
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Without
in any way limiting the generality of this Section 8.4, in the event that
the
Company either shall assign this Agreement or the servicing responsibilities
hereunder or sell or otherwise dispose of all or substantially all of its
property or assets without the prior written consent of the Purchaser,
then the
Purchaser shall have the right to terminate this Agreement upon notice
given as
set forth in Section 10.1, without any payment of any penalty or damages
and
without any liability whatsoever to the Purchaser or any third
party.
ARTICLE
IX
SECURITIZATION
TRANSACTION
Section
9.1 Removal
of Mortgage Loans from Inclusion Under this Agreement Upon a Securitization
Transaction
The
Purchaser and the Company agree that with respect to some or all of the
Mortgage
Loans, the Purchaser, at its sole option, may effect Whole Loan Transfers,
Agency Transfers or Securitization Transactions, retaining the Company
as the
servicer thereof or subservicer if a master servicer is employed, or as
applicable the “seller/servicer”. From and after the Reconstitution Date, the
Mortgage Loans transferred may remain covered by this Agreement, insofar
as the
Company shall continue to service such Mortgage Loans on behalf of the
Purchaser
in accordance with the terms and provisions of this Agreement.
The
Company shall cooperate with the Purchaser in connection with each Whole
Loan
Transfer or Securitization Transaction in accordance with this Section
9.1. In
connection therewith the Company shall:
(a) make
all
representations and warranties with respect to the Mortgage Loans as of
the
related Closing Date and with respect to the Company itself as of the closing
date of each Whole Loan Transfer or Securitization Transaction;
(b) negotiate
in good faith and execute any seller/servicer agreements required by the
shelf
registrant to effectuate the foregoing provided
such
agreements create no greater obligation or cost on the part of the Company
than
otherwise set forth in this Agreement;
(c) with
respect to any Mortgage Loans that are subject to a Securitization Transaction
occurring on or before December 31, 2005, in which the filing of a
Xxxxxxxx-Xxxxx certification directly with the Commission is required,
by
February 28, 2006,r or in connection with any additional Xxxxxxxx-Xxxxx
certification required to be filed, upon thirty (30) days written request,
an
officer of the Company shall execute and deliver a Company Certification
substantially in the form attached hereto as Exhibit H, to the entity filing
the
Xxxxxxxx-Xxxxx certification directly with the Commission (such as the
Purchaser, any master servicer, any trustee or any depositor) for the benefit
of
such entity and such entity’s affiliates and the officers, directors and agents
of such entity and such entity’s affiliates, and shall indemnify such entity or
persons arising out of any breach of the Company’s obligations or
representations relating thereto as provided in such Company
Certification;
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(d) represent
to the Purchaser, the depositor, the trustee, and the initial purchaser
of the
securities issued in connection with any Securitization Transaction that:
(1)
that the Company has serviced the Mortgage Loans in accordance with the
terms of
this Agreement, and has otherwise complied with all covenants and obligations
hereunder, and (2) that the Company has taken no action that would, nor
omitted
to take any required action the omission of which would, have the effect
of
impairing the mortgage insurance or guarantee on the Mortgage Loans. The
Company
also agrees to represent the accuracy of any information provided to the
Purchaser by the Company for inclusion in any prospectus supplement, offering
memorandum or term sheet prepared in connection with any Securitization
Transactions;
(e) deliver
an opinion of counsel (which can be an opinion of in-house counsel to the
Company) reasonably acceptable to the Purchaser; provided
that any
out-of-pocket, third party expenses incurred by the Company in connection
with
the foregoing shall be paid by the Purchaser;
(f) provide
as applicable:
(i) any
and
all information and appropriate verification of information which may be
reasonably available to the Company, whether through letters of its auditors
and
counsel or otherwise, as the Purchaser shall request;
(ii) (x)
a
company certification executed by a senior officer of the Company responsible
for the servicing of the Mortgage Loans, and (y) such additional statements,
certificates or other similar documents of the Company or reports from
the
Company’s accountants in connection with a Securitization Transaction and in
substance as required by Applicable Law; and
(iii) such
additional representations, warranties, covenants, opinions of counsel,
letters
from auditors, financial description of the Company as servicer for inclusion
in
any offering memorandum to be distributed to potential investors in connection
with a Securitization Transaction with respect to the Mortgage Loans, and
certificates of public officials or officers of the Company as are reasonably
believed necessary by the trustee, any Rating Agency, the Purchaser, as
the case
may be, in connection with such Whole Loan Transfers, Agency Transfers
or
Securitization Transactions. The Purchaser shall pay all third party costs
associated with the preparation of such information. The Company shall
execute
any seller/servicer agreements required within a reasonable period of time
after
receipt of such seller/servicer agreements which time shall be sufficient
for
the Company and Company’s counsel to review such seller/servicer agreements.
Under this Agreement, the Company shall retain a servicing fee for each
Mortgage
Loan, at the Servicing Fee Rate. The Purchaser shall continue to be responsible
for the fees and expenses of the Custodian, including the obligation to
pay such
fees and expenses on behalf of any Agency to whom Mortgage Loans are transferred
pursuant to an Agency Transfer.
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(g)
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in
connection with any Securitization Transaction occurring on or
after
January 1, 2006, the Company shall (1) within five (5) Business
Days
following request by the Purchaser or any Depositor, provide
to the
Purchaser and such Depositor (or, as applicable, cause each Third-Party
Originator and each Subservicer to provide), in writing and in
form and
substance reasonably satisfactory to the Purchaser and such Depositor,
the
information and materials specified in paragraphs (i), (ii),
(iii) and
(vii) of this subsection (e), and (2) as promptly as practicable
following
notice to or discovery by the Company, provide to the Purchaser
and any
Depositor (in writing and in form and substance reasonably satisfactory
to
the Purchaser and such Depositor) the information specified in
paragraph
(iv) of this subsection (e).
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(i)
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If
so requested by the Purchaser or any Depositor, the Company shall
provide
such information regarding (1) the Company, as originator of
the Mortgage
Loans (including as an acquirer of Mortgage Loans from a Qualified
Correspondent), or (2) each Third-Party Originator, and (3) as
applicable,
each Subservicer, as is requested for the purpose of compliance
with Items
1103(a)(1), 1105, 1110, 1117 and 1119 of Regulation AB. Such
information
shall include, at a minimum:
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(A)
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the
originator’s form of organization;
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(B)
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a
description of the originator’s origination program and how long the
originator has been engaged in originating residential mortgage
loans,
which description shall include a discussion of the originator’s
experience in originating mortgage loans of a similar type as
the Mortgage
Loans; information regarding the size and composition of the
originator’s
origination portfolio; and information that may be material,
in the good
faith judgment of the Purchaser or any Depositor, to an analysis
of the
performance of the Mortgage Loans, including the originators’
credit-granting or underwriting criteria for mortgage loans of
similar
type(s) as the Mortgage Loans and such other information as the
Purchaser
or any Depositor may reasonably request for the purpose of compliance
with
Item 1110(b)(2) of Regulation AB;
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(C)
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a
description of any material legal or governmental proceedings
pending (or
known to be contemplated) against the Company, each Third-Party
Originator
and each Subservicer; and
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(D)
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a
description of any affiliation or relationship between the Company,
each
Third-Party Originator, each Subservicer and any of the following
parties
to a Securitization Transaction, as such parties are identified
to the
Company by the Purchaser or any Depositor in writing in advance
of a
Securitization Transaction:
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(1)
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the
sponsor;
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(2) the
depositor;
(3) the
issuing entity;
(4) any
servicer;
(5) any
trustee;
(6) any
originator;
(7) any
significant obligor;
(8) any
enhancement or support provider; and
(9) any
other
material transaction party.
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(ii)
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If
so requested by the Purchaser or any Depositor, the Company shall
provide
(or, as applicable, cause each Third-Party Originator to provide)
Static
Pool Information with respect to the mortgage loans (of a similar
type as
the Mortgage Loans, as reasonably identified by the Purchaser
as provided
below) originated by (1) the Company, if the Company is an originator
of
Mortgage Loans (including as an acquirer of Mortgage Loans from
a
Qualified Correspondent), and/or (2) each Third-Party Originator.
Such
Static Pool Information shall be prepared by the Company (or
Third-Party
Originator) on the basis of its reasonable, good faith interpretation
of
the requirements of Item 1105(a)(1)-(3) of Regulation AB. To
the extent
that there is reasonably available to the Company (or Third-Party
Originator) Static Pool Information with respect to more than
one mortgage
loan type, the Purchaser or any Depositor shall be entitled to
specify
whether some or all of such information shall be provided pursuant
to this
paragraph. The content of such Static Pool Information may be
in the form
customarily provided by the Company, and need not be customized
for the
Purchaser or any Depositor. Such Static Pool Information for
each vintage
origination year or prior securitized pool, as applicable, shall
be
presented in increments no less frequently than quarterly over
the life of
the mortgage loans included in the vintage origination year or
prior
securitized pool. The most recent periodic increment must be
as of a date
no later than 135 days prior to the date of the prospectus or
other
offering document in which the Static Pool Information is to
be included
or incorporated by reference. The Static Pool Information shall
be
provided in an electronic format that provides a permanent record
of the
information provided, such as a portable document format (pdf)
file, or
other such electronic format reasonably required by the Purchaser
or the
Depositor, as applicable.
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If
so
requested by the Purchaser or any Depositor, the Company shall provide
(or, as
applicable, cause each Third-Party Originator to provide), at the expense
of the
requesting party (to the extent of any additional incremental expense associated
with delivery pursuant to this Agreement), such agreed-upon procedures
letters
of certified public accountants reasonably acceptable to the Purchaser
or
Depositor, as applicable, pertaining to Static Pool Information relating
to
prior securitized pools for securitizations closed on or after January
1, 2006
or, in the case of Static Pool Information with respect to the Company’s or
Third-Party Originator’s originations or purchases, to calendar months
commencing January 1, 2006, as the Purchaser or such Depositor shall reasonably
request. Such statements and letters shall be addressed to and be for the
benefit of such parties as the Purchaser or such Depositor shall designate,
which may include, by way of example, any sponsor, any Depositor and any
broker
dealer acting as underwriter, placement agent or initial purchaser with
respect
to a Securitization Transaction. Any such statement or letter may take
the form
of a standard, generally applicable document accompanied by a reliance
letter
authorizing reliance by the addressees designated by the Purchaser or such
Depositor.
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(iii)
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If
so requested by the Purchaser or any Depositor, the Company shall
provide
such information regarding the Company, as servicer of the Mortgage
Loans,
and each Subservicer (each of the Company and each Subservicer,
for
purposes of this paragraph, a “Servicer”), as is requested for the purpose
of compliance with Items 1108 of Regulation AB. Such information
shall
include, at a minimum:
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(A)
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the
Servicer’s form of organization;
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(B)
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a
description of how long the Servicer has been servicing residential
mortgage loans; a general discussion of the Servicer’s experience in
servicing assets of any type as well as a more detailed discussion
of the
Servicer’s experience in, and procedures for, the servicing function it
will perform under this Agreement and any Reconstitution Agreements;
information regarding the size, composition and growth of the
Servicer’s
portfolio of residential mortgage loans of a type similar to
the Mortgage
Loans and information on factors related to the Servicer that
may be
material, in the good faith judgment of the Purchaser or any
Depositor, to
any analysis of the servicing of the Mortgage Loans or the related
asset-backed securities, as applicable, including, without limitation:
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(1)
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whether
any prior securitizations of mortgage loans of a type similar
to the
Mortgage Loans involving the Servicer have defaulted or experienced
an
early amortization or other performance triggering event because
of
servicing during the three-year period immediately preceding
the related
Securitization Transaction;
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(2)
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the
extent of outsourcing the Servicer
utilizes;
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(3)
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whether
there has been previous disclosure of material noncompliance
with the
applicable servicing criteria with respect to other securitizations
of
residential mortgage loans involving the Servicer as a servicer
during the
three-year period immediately preceding the related Securitization
Transaction;
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(4)
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whether
the Servicer has been terminated as servicer in a residential
mortgage
loan securitization, either due to a servicing default or to
application
of a servicing performance test or trigger; and
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(5)
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such
other information as the Purchaser or any Depositor may reasonably
request
for the purpose of compliance with Item 1108(b)(2) of Regulation
AB;
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(C)
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a
description of any material changes during the three-year period
immediately preceding the related Securitization Transaction
to the
Servicer’s policies or procedures with respect to the servicing function
it will perform under this Agreement and any Reconstitution Agreements
for
mortgage loans of a type similar to the Mortgage
Loans;
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(D)
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information
regarding the Servicer’s financial condition, to the extent that there is
a material risk that an adverse financial event or circumstance
involving
the Servicer could have a material adverse effect on the performance
by
the Company of its servicing obligations under this Agreement
or any
Reconstitution Agreement;
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(E)
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information
regarding advances made by the Servicer on the Mortgage Loans
and the
Servicer’s overall servicing portfolio of residential mortgage loans for
the three-year period immediately preceding the related Securitization
Transaction, which may be limited to a statement by an authorized
officer
of the Servicer to the effect that the Servicer has made all
advances
required to be made on residential mortgage loans serviced by
it during
such period, or, if such statement would not be accurate, information
regarding the percentage and type of advances not made as required,
and
the reasons for such failure to
advance;
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(F)
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a
description of the Servicer’s processes and procedures designed to address
any special or unique factors involved in servicing loans of
a similar
type as the Mortgage Loans;
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(G)
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a
description of the Servicer’s processes for handling delinquencies,
losses, bankruptcies and recoveries, such as through liquidation
of
mortgaged properties, sale of defaulted mortgage loans or workouts;
and
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(H)
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information
as to how the Servicer defines or determines delinquencies and
charge-offs, including the effect of any grace period, re-aging,
restructuring, partial payments considered current or other practices
with
respect to delinquency and loss
experience.
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(iv)
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If
so requested by the Purchaser or any Depositor for the purpose
of
satisfying its reporting obligation under the Exchange Act with
respect to
any class of asset-backed securities, the Company shall (or shall
cause
each Subservicer and Third-Party Originator to) (1) notify the
Purchaser
and any Depositor in writing of (A) any material litigation or
governmental proceedings pending against the Company, any Subservicer
or
any Third-Party Originator and (B) any affiliations or relationships
that
develop following the closing date of a Securitization Transaction
between
the Company, any Subservicer or any Third-Party Originator and
any of the
parties specified in Section 9.1(g)(i)(D) (and any other parties
identified in writing by the requesting party) with respect to
such
Securitization Transaction, and (2) provide to the Purchaser
and any
Depositor a description of such proceedings, affiliations or
relationships.
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(v)
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As
a condition to the succession to the Company or any Subservicer
as
servicer or Subservicer under this Agreement or any Reconstitution
Agreement by any Person (i) into which the Company or such Subservicer
may
be merged or consolidated, or (ii) which may be appointed as
a successor
to the Company or any Subservicer, the Company shall provide
to the
Purchaser and any Depositor, at least 15 calendar days prior
to the
effective date of such succession or appointment, (x) written
notice to
the Purchaser and any Depositor of such succession or appointment
and (y)
in writing and in form and substance reasonably satisfactory
to the
Purchaser and such Depositor, all information reasonably requested
by the
Purchaser or any Depositor in order to comply with is reporting
obligation
under Item 6.02 of Form 8-K with respect to any class of asset-backed
securities.
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(vi)
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(A)
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The
Company shall be deemed to represent to the Purchaser and to
any
Depositor, as of the date on which information is first provided
to the
Purchaser under this Section 9.1(g) that, except as disclosed
in writing
to the Purchaser or such Depositor prior to such date: (1) the
Company is
not aware and has not received notice that any default, early
amortization
or other performance triggering event has occurred as to any
other
securitization due to any act or failure to act of the Company;
(2) the
Company has not been terminated as servicer in a residential
mortgage loan
securitization, either due to a servicing default or to application
of a
servicing performance test or trigger; (3) no material noncompliance
with
the applicable servicing criteria with respect to other securitizations
of
residential mortgage loans involving the Company as servicer
has been
disclosed or reported by the Company; (4) no material changes
to the
Company’s policies or procedures with respect to the servicing function
it
will perform under this Agreement and any Reconstitution Agreement
for
mortgage loans of a type similar to the Mortgage Loans have occurred
during the three-year period immediately preceding the related
Securitization Transaction; (5) there are no aspects of the Company’s
financial condition that could have a material adverse effect
on the
performance by the Company of its servicing obligations under
this
Agreement or any Reconstitution Agreement; (6) there are no material
legal
or governmental proceedings pending (or known to be contemplated)
against
the Company, any Subservicer or any Third-Party Originator; and
(7) there
are no affiliations, relationships or transactions relating to
the
Company, any Subservicer or any Third-Party Originator with respect
to any
Securitization Transaction and any party thereto identified by
the related
Depositor of a type described in Item 1119 of Regulation
AB.
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(B)
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If
so requested by the Purchaser or any Depositor on any date following
the
date on which information is first provided to the Purchaser
or any
Depositor under this Section 9.1(g), the Company shall, within
five (5)
Business Days following such request, confirm in writing the
accuracy of
the representations and warranties set forth in sub clause (A)
above or,
if any such representation and warranty is not accurate as of
the date of
such request, provide reasonably adequate disclosure of the pertinent
facts, in writing, to the requesting
party.
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(vii)
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In
addition to such information as the Company, as servicer, is
obligated to
provide pursuant to other provisions of this Agreement, if so
requested by
the Purchaser or any Depositor, the Company shall provide such
information
reasonably available to the Company regarding the performance
or servicing
of the Mortgage Loans as is reasonably required to facilitate
preparation
of distribution reports in accordance with Item 1121 of Regulation
AB.
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(h)
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The
Company shall indemnify the Purchaser, each affiliate of the
Purchaser,
and each of the following parties participating in a Securitization
Transaction: each sponsor and issuing entity; each Person responsible
for
the preparation, execution or filing of any report required to
be filed
with the Commission with respect to such Securitization Transaction,
or
for execution of a certification pursuant to Rule 13a-14(d) or
Rule
15d-14(d) under the Exchange Act with respect to such Securitization
Transaction; each broker dealer acting as underwriter, placement
agent or
initial purchaser, each Person who controls any of such parties
or the
Depositor (within the meaning of Section 15 of the Securities
Act and
Section 20 of the Exchange Act); and the respective present and
former
directors, officers, employees and agents of each of the foregoing
and of
the Depositor, and shall hold each of them harmless from and
against any
losses, damages, penalties, fines, forfeitures, legal fees and
expenses
and related costs, judgments, and any other costs, fees and expenses
that
any of them may sustain arising out of or based
upon:
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(i) (A) any
untrue statement of a material fact contained or alleged to be contained
in any
information, report, certification, accountants’ letter or other material
provided under Sections 4.28, 6.4(ii), 6.6, 9.1(d) and (g) by or on behalf
of
the Company, or provided under Sections 4.28, 6.4(ii), 6.6, 9.1(d) and
(g) by or
on behalf of any Subservicer, Subcontractor or Third-Party Originator
(collectively, the “Company Information”), or (B) the omission or alleged
omission to state in the Company Information a material fact required to
be
stated in the Company Information or necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not
misleading; provided,
by way of clarification, that
clause (B) of this paragraph shall be construed solely by reference to
the
Company Information and not to any other information communicated in connection
with a sale or purchase of securities, without regard to whether the Company
Information or any portion thereof is presented together with or separately
from
such other information;
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(ii)
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any
failure by the Company, any Subservicer, any Subcontractor or
any
Third-Party Originator to deliver any information, report, certification,
accountants’ letter or other material when and as required under Sections
4.28, 6.4(ii), 6.6, 9.1(d) and (g), including any failure by
the Company
to identify any Subcontractor “participating in the servicing function”
within the meaning of Item 1122 of Regulation AB;
or
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(iii)
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any
breach by the Company of a representation or warranty set forth
in Section
9.1(g)(vi)(A) or in a writing furnished pursuant to Section 9.1(g)(vi)(B)
and made as of a date prior to the closing date of the related
Securitization Transaction, to the extent that such breach is
not cured by
such closing date, or any breach by the Company of a representation
or
warranty in a writing furnished pursuant to Section 9.1(g)(vi)(B)
to the
extent made as of a date subsequent to such closing
date.
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In
the
case of any failure of performance described in sub-clause (ii) of this
Section
9.1(h), the Company shall promptly reimburse the Purchaser, any Depositor,
as
applicable, and each Person responsible for the preparation, execution
or filing
of any report required to be filed with the Commission with respect to
such
Securitization Transaction, or for execution of a certification pursuant
to Rule
13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to such
Securitization Transaction, for all costs reasonably incurred by each such
party
in order to obtain the information, report, certification, accountants’ letter
or other material not delivered as required by the Company, any Subservicer,
any
Subcontractor or any Third-Party Originator.
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(i)
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The
Purchaser and each Person who controls the Purchaser (within
the meaning
of Section 15 of the Securities Act and Section 20 of the Exchange
Act)
shall indemnify the Company, each affiliate of the Company, each
Person
who controls any of such parties or the Company (within the meaning
of
Section 15 of the Securities Act and Section 20 of the Exchange
Act) and
the respective present and former directors, officers, employees
and
agents of each of the foregoing and of the Company, and shall
hold each of
them harmless from and against any losses, damages, penalties,
fines,
forfeitures, legal fees and expenses and related costs, judgments,
and any
other costs, fees and expenses that any of them may sustain arising
out of
or based upon:
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(i) (A) any
untrue statement of a material fact contained or alleged to be contained
in any
offering materials related to a Securitization Transaction, including without
limitation the registration statement, prospectus, prospectus supplement,
any
private placement memorandum, any offering circular, any freewriting
prospectuses (as defined in Rule 405 of the Securities Act), and any amendments
or supplements to the foregoing (collectively, the “Securitization Materials”)
or (B) the omission or alleged omission to state in the Securitization
Materials
a material fact required to be stated in the Securitization Materials or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, but only to the
extent
that such untrue statement or alleged untrue statement or omission or alleged
omission is other than a statement or omission arising out of, resulting
from,
or based upon the Company Information.
|
(j)
|
indemnify
the Purchaser for any material misstatements, omissions or alleged
material misstatements or omissions contained in the information
provided
pursuant to (d) or (f) above; provided,
that the Purchaser shall provide indemnification to the Company,
its
successors or assigns, with respect to any material misstatements,
omissions or alleged material misstatements or omissions contained
in any
information (other than the information provided by the Company
pursuant
to (d) or (f) above) in any securitization offering materials;
and
|
|
(k)
|
if
required at any time by the Rating Agencies in connection with
any
Securitization Transaction, the Company shall deliver such additional
documents from its Retained Mortgage File to the Custodian as
the Rating
Agencies may require (a “Rating Agency Delivery
Event”).
|
The
Purchaser and the Company acknowledge and agree that the purpose of Section
9.
1(g) is to facilitate compliance by the Purchaser and any Depositor with
the
provisions of Regulation AB and related rules and regulations of the Commission.
Neither the Purchaser nor any Depositor shall exercise its right to request
delivery of information or other performance under these provisions other
than
in good faith, or for purposes other than compliance with the Securities
Act,
the Exchange Act and the rules and regulations of the Commission thereunder.
The
Company acknowledges that interpretations of the requirements of Regulation
AB
may change over time, whether due to interpretive guidance provided by
the
Commission or its staff, consensus among participants in the asset-backed
securities markets, advice of counsel, or otherwise, and agrees to comply
with
requests made by the Purchaser or any Depositor in good faith for delivery
of
information under these provisions on the basis of evolving interpretations
of
Regulation AB. In connection with any Securitization Transaction, the Company
shall cooperate fully with the Purchaser to deliver to the Purchaser (including
any of its assignees or designees) and any Depositor, any and all statements,
reports, certifications, records and any other information necessary in
the good
faith determination of the Purchaser or any Depositor to permit the Purchaser
or
such Depositor to comply with the provisions of Regulation AB, together
with
such disclosures relating to the Company, any Subservicer, any Third-Party
Originator and the Mortgage Loans, or the servicing of the Mortgage Loans,
reasonably believed by the Purchaser or any Depositor to be necessary in
order
to effect such compliance.
-79-
In
the
event the Purchaser has elected to have the Company hold record title to
the
Mortgages, prior to the Reconstitution Date and after the related Closing
Date
the Company shall prepare an Assignment of Mortgage in blank or, at the
option
of the Purchaser, to the trustee from the Company (to the extent such Assignment
has not been prepared on or before the related Closing Date) acceptable
to the
trustee for each Mortgage Loan that is part of the Whole Loan Transfers,
Agency
Transfers or Securitization Transactions. The Purchaser shall pay all
preparation and recording costs associated therewith. The Company shall
execute
each Assignment of Mortgage, track such Assignments of Mortgage to ensure
they
have been recorded and deliver them as required by the trustee upon the
Company’s receipt thereof. Additionally, the Company shall prepare and execute,
at the direction of the Purchaser, any note endorsements in connection
with any
and all seller/servicer agreements.
All
Mortgage Loans (i) not sold or transferred pursuant to Whole Loan Transfers,
Agency Transfers or Securitization Transactions or (ii) that are subject
to a
Securitization Transaction for which the related trust is terminated for
any
reason, shall remain subject to this Agreement and shall continue to be
serviced
in accordance with the terms of this Agreement and with respect thereto
this
Agreement shall remain in full force and effect.
ARTICLE
X
DEFAULT
Section
10.1 Events
of Default.
Each
of
the following shall constitute an Event of Default on the part of the
Company:
-80-
(i) any
failure by the Company to remit to the Purchaser any payment required to
be made
under the terms of this Agreement which continues unremedied for a period
of
three Business Days after the date upon which written notice of such failure,
requiring the same to be remedied, shall have been given to the Company
by the
Purchaser; or
(ii) failure
by the Company duly to observe or perform in any material respect any other
of
the covenants or agreements on the part of the Company set forth in this
Agreement which continues unremedied for a period of 30 days after the
date on
which written notice of such failure, requiring the same to be remedied,
shall
have been given to the Company by the Purchaser or by the Custodian;
or
(iii) failure
by the Company to maintain its license to do business in any jurisdiction
where
the Mortgaged Property is located if such license is required; or
(iv) a
decree
or order of a court or agency or supervisory authority having jurisdiction
for
the appointment of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, including bankruptcy, marshaling of assets and liabilities
or similar proceedings, or for the winding-up or liquidation of its affairs,
shall have been entered against the Company and such degree or order shall
have
remained in force undischarged or unstayed for a period of 60 days;
or
(v) the
Company shall consent to the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshaling of assets
and
liabilities or similar proceedings of or relating to the Company or of
or
relating to all or substantially all of its property; or
(vi) the
Company shall admit in writing its inability to pay its debts generally
as they
become due, file a petition to take advantage of any applicable insolvency,
bankruptcy or reorganization statute, make an assignment for the benefit
of its
creditors, voluntarily suspend payment of its obligations or cease its
normal
business operations for three (3) Business Days; or
(vii) the
Company ceases to meet the qualifications of a Xxxxxx Xxx/Freddie Mac servicer;
or
(viii) the
Company attempts to assign its right to servicing compensation hereunder
or to
assign this Agreement or the servicing responsibilities hereunder in violation
of Section 8.4; or
(ix) the
taking of any action by the Company, any Company Employee, any Affiliate
or any
director or employee thereof that constitutes fraud or criminal activity
in the
performance of its obligations under this Agreement or the indictment of
any of
the foregoing Persons for criminal activity related to the mortgage origination
or servicing activities of the Company, in each case, where such indictment
materially and adversely affects the ability of the Company to perform
its
obligations under this Agreement (subject to the condition that such indictment
is not dismissed within 90 days).
-81-
In
each
and every such case, so long as an Event of Default shall not have been
remedied, in addition to whatever rights the Purchaser may have at law
or equity
to damages, including injunctive relief and specific performance, the Purchaser,
by notice in writing to the Company, may terminate with cause all the rights
and
obligations of the Company under this Agreement and in and to the Mortgage
Loans
and the proceeds thereof.
Upon
receipt by the Company of such written notice, all authority and power
of the
Company under this Agreement, whether with respect to the Mortgage Loans
or
otherwise, shall pass to and be vested in the successor appointed pursuant
to
Section 12.1. Upon written request from any Purchaser, the Company shall
prepare, execute and deliver to the successor entity designated by the
Purchaser
any and all documents and other instruments, place in such successor’s
possession all Custodial Mortgage Files, and do or cause to be done all
other
acts or things necessary or appropriate to effect the purposes of such
notice of
termination, including but not limited to the transfer and endorsement
or
assignment of the Mortgage Loans and related documents, at the Company’s sole
expense. The Company shall cooperate with the Purchaser and such successor
in
effecting the termination of the Company’s responsibilities and rights
hereunder, including without limitation, the transfer to such successor
for
administration by it of all cash amounts which shall at the time be credited
by
the Company to the Custodial Account or Subsidy Account or Escrow Account
or
thereafter received with respect to the Mortgage Loans.
If
any of
the Mortgage Loans are MERS Mortgage Loans, in connection with the termination
or resignation (as described in Section 8.4) of the Company 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 predecessor servicer
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 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
10.2 Waiver
of Defaults.
By
a
written notice, the Purchaser may waive any default by the Company in the
performance of its obligations hereunder and its consequences. Upon any
waiver
of a past default, such default shall cease to exist, and any Event of
Default
arising therefrom shall be deemed to have been remedied for every purpose
of
this Agreement. No such waiver shall extend to any subsequent or other
default
or impair any right consequent thereon except to the extent expressly so
waived.
-82-
ARTICLE
XI
TERMINATION
Section
11.1 Termination.
This
Agreement shall terminate upon any of: (i) the later of the final payment
or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or the disposition of any REO Property with respect to the last Mortgage
Loan and the remittance of all funds due hereunder, (ii) mutual consent
of the
Company and the Purchaser in writing or (iii) termination pursuant to Section
10.1, 11.2 or 11.3.
Section
11.2 Termination
Without Cause.
The
Purchaser may terminate, at its sole option, any rights the Company may
have
hereunder, without cause, as provided in this Section 11.2. Any such notice
of
termination shall be in writing and delivered to the Company and any Rating
Agency by registered mail as provided in Section 12.5.
The
Company shall be entitled to receive, as such liquidated damages, upon
its
termination as servicer hereunder without cause pursuant to this Section
11.2 an
amount equal to 2.50% of the aggregate outstanding principal amount of
the
Mortgage Loans as of the termination date paid by the Purchaser to the
Company
with respect to all of the Mortgage Loans. In the event of a termination
pursuant to this Section 11.2, the Company shall be required, at the expense
of
the Purchaser, to deliver to the Custodian the entire contents of the Retained
Mortgage File, to the extent such contents were not previously delivered
to the
Custodian pursuant to this Agreement or the Custodial Agreement.
Section
11.3 Termination
With Cause.
Notwithstanding
any other provision hereof to the contrary, the Purchaser, at its option,
may
terminate this Agreement, and any rights the Company may have hereunder,
with
cause upon ten (10) Business Days’ prior written notice. For all purposes of
determining “cause” with respect to termination of this Agreement or the rights
of the Company hereunder, such term shall mean, without limitation, termination
upon the occurrence of any Event of Default hereunder which is not cured
within
any applicable cure period. In the event of a termination of the Company
for
cause under this Section 11.3, no liquidated damages shall be payable to
the
Company pursuant to Section 11.2 and the Company shall be required, at
its own
expense, to deliver to the Custodian the entire contents of the Retained
Mortgage File, to the extent such contents were not previously delivered
to the
Custodian pursuant to this Agreement or the Custodial
Agreement.
-83-
ARTICLE
XII
MISCELLANEOUS
PROVISIONS
Section
12.1 Successor
to Company.
Prior
to
termination of the Company’s responsibilities and duties under this Agreement
pursuant to Sections 8.4, 10.1 or 11.1, the Purchaser shall, (i) succeed
to and
assume all of the Company’s responsibilities, rights, duties and obligations
under this Agreement, or (ii) appoint a successor having the characteristics
set
forth in Section 8.2 and which shall succeed to all rights and assume all
of the
responsibilities, duties and liabilities of the Company under this Agreement
prior to the termination of Company’s responsibilities, duties and liabilities
under this Agreement. In connection with such appointment and assumption,
the
Purchaser may make such arrangements for the compensation of such successor
out
of payments on Mortgage Loans as it and such successor shall agree. In
the event
that the Company’s duties, responsibilities and liabilities under this Agreement
should be terminated pursuant to the aforementioned sections, the Company
shall
discharge such duties and responsibilities during the period from the date
it
acquires knowledge of such termination until the effective date thereof
with the
same degree of diligence and prudence which it is obligated to exercise
under
this Agreement, and shall take no action whatsoever that might impair or
prejudice the rights or financial condition of its successor. The resignation
or
removal of the Company pursuant to the aforementioned sections shall not
become
effective until a successor shall be appointed pursuant to this Section
12.1 and
shall in no event relieve the Company of the representations and warranties
made
pursuant to Sections 3.1 and 3.2 and the remedies available to the Purchaser
under Sections 2.3, 3.3 and 6.2, it being understood and agreed that the
provisions of such Sections 2.3, 3.1, 3.2, 3.3, 6.1 and 8.1 shall be applicable
to the Company notwithstanding any such sale, assignment, resignation or
termination of the Company, or the termination of this Agreement.
Any
successor appointed as provided herein shall execute, acknowledge and deliver
to
the Company and to the Purchaser an instrument accepting such appointment,
wherein the successor shall make the representations and warranties set
forth in
Section 3.1, except for the portion of subsection (h) relating to sale
of the
mortgage loans and all of subsections (j) and (l) thereof, whereupon such
successor shall become fully vested with all the rights, powers, duties,
responsibilities, obligations and liabilities of the Company, with like
effect
as if originally named as a party to this Agreement. Any termination or
resignation of the Company or termination of this Agreement pursuant to
Section
8.4, 10.1, 11.1, 11.2 or 11.3 shall not affect any claims that any Purchaser
may
have against the Company arising out of the Company’s actions or failure to act
prior to any such termination or resignation.
The
Company shall deliver promptly to the successor servicer the funds in the
Custodial Account, Subsidy Account and Escrow Account and all Custodial
Mortgage
Files and related documents and statements held by it hereunder and the
Company
shall account for all funds and shall execute and deliver such instruments
and
do such other things as may reasonably be required to more fully and
definitively vest in the successor all such rights, powers, duties,
responsibilities, obligations and liabilities of the Company.
-84-
Upon
a
successor’s acceptance of appointment as such, the Company shall notify by mail
the Purchaser of such appointment in accordance with the procedures set
forth in
Section 12.5.
Section
12.2 Amendment.
This
Agreement may be amended from time to time by written agreement signed
by the
Company and the Purchaser.
Section
12.3 Governing
Law.
This
Agreement shall be construed in accordance with the laws of the State of
New
York and the obligations, rights and remedies of the parties hereunder
shall be
determined in accordance with such laws.
Each
of
the Company and the Purchaser hereby knowingly, voluntarily and intentionally
waives any and all rights it may have to a trial by jury in respect or
any
litigation based on, or arising out of, under, or in connection with, this
Agreement, or any other documents and instruments executed in connection
herewith, or any course of conduct, course of dealing, statements (whether
oral
or written), or actions of the Company or the Purchaser. This provision
is a
material inducement for the Purchaser to enter into this Agreement.
Section
12.4 Duration
of Agreement.
This
Agreement shall continue in existence and effect until terminated as herein
provided. This Agreement shall continue notwithstanding transfers of the
Mortgage Loans by the Purchaser.
Section
12.5 Notices.
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if personally delivered at or mailed by
registered mail, postage prepaid, addressed as follows:
(i) if
to the
Company with respect to servicing and investor reporting issues:
Xxxxx
Fargo Bank, N.A.
1
Home
Campus, MAC #X2401042
Des
Moines, Iowa 50328000
Attention:
Xxxx X. Xxxxx
Tel:
(000) 000-0000
if
to the
Company with respect to all other issues:
-85-
Xxxxx
Fargo Bank, N.A.
0000
Xxx
Xxxxxxxxxx Xxx
Frederick,
Maryland 21703
Attention:
Structured Finance Manager, MAC X3906-012
Tel:
(000) 000-0000; Fax: (000) 000-0000
With
a
copy to:
Xxxxx
Fargo Bank, N.A.
1
Home
Campus, MAC #X240106T
Des
Moines, Iowa 503280001
Attention:
General Counsel
Tel:
(000) 000-0000; Fax: (000) 000-0000
or
such
other address as may hereafter be furnished to the Purchaser in writing
by the
Company;
(ii) if
to
Purchaser:
Xxxxxxx
Xxxxx Mortgage Company
000
Xxxxxx Xxxxxx Xxxxx, Xxxxx 000 Xxxxx
St.
Petersburg, FL 33701
Attention:
Xxxxxx Xxxxx
Tel:
(000) 000-0000; Fax: (000) 000-0000
With
a
copy to:
Xxxxxxx
Xxxxx Mortgage Company
00
Xxxxx
Xxxxxx
New
York,
NY 10004
Attention:
Xxxxxxxx Xxxx
Tel:
(000) 000-0000; Fax: (000) 000-0000
or
such
other address as may hereafter be furnished to the Company in writing by
the
Purchaser.
Section
12.6 Severability
of Provisions.
If
any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall be held invalid for any reason whatsoever, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall
in no way
affect the validity or enforceability of the other provisions of this
Agreement.
Section
12.7 Relationship
of Parties.
-86-
Nothing
herein contained shall be deemed or construed to create a partnership or
joint
venture between the parties hereto and the services of the Company shall
be
rendered as an independent contractor and not as agent for the
Purchaser.
Section
12.8 Execution;
Successors and Assigns.
This
Agreement may be executed in one or more counterparts and by the different
parties hereto on separate counterparts, each of which, when so executed,
shall
be deemed to be an original; such counterparts, together, shall constitute
one
and the same agreement. Subject to Section 8.4, this Agreement shall inure
to
the benefit of and be binding upon, and shall be enforceable by, the Company
and
the Purchaser and their respective successors and assigns, including without
limitation, any trustee appointed by the Purchaser with respect to any
Whole
Loan Transfer or Securitization Transaction. The parties agree that this
Agreement and signature pages thereof may be transmitted between them by
facsimile and that faxed signatures may constitute original signatures
and that
a faxed signature page containing the signature (faxed or original) is
binding
on the parties.
Section
12.9 Recordation
of Assignments of Mortgage.
To
the
extent permitted by Applicable Law, as to each Mortgage Loan which is not
a MERS
Mortgage Loan, 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,
which recordation shall have been effected at the Company’s expense in the event
recordation is either necessary under Applicable Law or requested by the
Purchaser at its sole option.
Section
12.10 Assignment
by Purchaser.
The
Purchaser shall have the right, without the consent of the Company to assign,
in
whole or in part, its interest under this Agreement with respect to some
or all
of the Mortgage Loans, and designate any Person to exercise any rights
of the
Purchaser hereunder, by executing an Assignment and Assumption Agreement
substantially in the form of Exhibit F hereto and the assignee or designee
shall
accede to the rights and obligations hereunder of the Purchaser with respect
to
such Mortgage Loans. All references to the Purchaser in this Agreement
shall be
deemed to include its assignee or designee.
Section
12.11 Solicitation
of Mortgagor.
-87-
Neither
party shall, after the related Closing Date, take any action to solicit
the
refinancing of any Mortgage Loan. It is understood and agreed that neither
(i)
promotions undertaken by either party or any affiliate of either party
which are
directed to the general public at large, including, without limitation,
mass
mailings based upon commercially acquired mailing lists, newspaper, radio,
television advertisements nor (ii) serving the refinancing needs of a Mortgagor
who, without solicitation, contacts either party in connection with the
refinance of such Mortgage or Mortgage Loan, shall constitute solicitation
under
this Section.
-88-
IN
WITNESS WHEREOF, the Company and the Purchaser have caused their names
to be
signed hereto by their respective duly authorized officers as of the day
and
year first above written.
XXXXXXX
XXXXX MORTGAGE
COMPANY
By:
Xxxxxxx Xxxxx Real Estate
Funding
Corp., its General Partner
By:
Name:
Title:
XXXXX
FARGO BANK, N.A.,
as
Company
By:
Name:
Title:
On
the
_____ day of November, 2005 before me, a Notary Public in and for said
State,
personally appeared ,
known
to me to be the of
Xxxxxxx Xxxxx Real Estate Funding Corp., the general partner of Xxxxxxx
Xxxxx
Mortgage Company, the partnership that executed the within instrument and
also
known to me to be the person who executed it on behalf of said partnership,
and
acknowledged to me that such corporation executed the within
instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand affixed my office seal the
day and
year in this certificate first above written.
Notary
Public
My
Commission expires
|
STATE
OF MARYLAND
|
)
|
|
)
ss:
|
|
|
COUNTY
OF XXXXXXXXXX
|
)
|
On
the
_____ day of November, 2005 before me, a Notary Public in and for said
State,
personally appeared ____________, known to me to be the _______________
of Xxxxx
Fargo Bank, N.A., the national banking association that executed the within
instrument and also known to me to be the person who executed it on behalf
of
said bank, and acknowledged to me that such bank executed the within
instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand affixed my office seal the
day and
year in this certificate first above written.
Notary
Public
My
Commission expires
EXHIBIT
A
ASSIGNMENT
AND CONVEYANCE
On
this
___ day of __________, ____, for good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, Xxxxx Fargo Bank, N.A.
(“Company”),
as
(i) the Seller under that certain Purchase Price and Terms Letter, dated as
of ___________, _____ (the “PPTL”),
(ii)
the Company under that certain Second Amended and Restated Master Seller’s
Warranties and Servicing Agreement, dated as of November 1, 2005 (the
“Purchase
Agreement”
and,
together with the PPTL, the “Agreements”)
does
hereby sell, transfer, assign, set over and convey to Xxxxxxx Xxxxx Mortgage
Company (“Purchaser”)
as the
Purchaser under the Agreements, and the Purchaser hereby accepts from the
Company, without recourse, but subject to the terms of the Agreements,
all
right, title and interest of, in and to the Mortgage Loans listed on the
Mortgage Loan Schedule attached hereto as Exhibit A
(the
“Mortgage
Loans”).
Pursuant to Section 2.3 of the Purchase Agreement, the Company has delivered
the
Custodial Mortgage File to the Custodian. The Retained Mortgage File and
the
Servicing File for each Mortgage Loan shall be retained by the Company
pursuant
to Section 2.1 of the Purchase Agreement.
In
accordance with Article 2
of the
Purchase Agreement, the Purchaser accepts the Mortgage Loans listed on
Exhibit A
attached
hereto. Notwithstanding the foregoing the Purchaser does not waive any
rights or
remedies it may have under the Agreements.
Capitalized
terms used herein and not otherwise defined shall have the meanings set
forth in
the Purchase Agreement.
[SIGNATURE
PAGE FOLLOWS]
A-1
XXXXX
FARGO BANK, N.A.
By:_________________________________
Name:______________________________
Title:_______________________________
Accepted
and Agreed:
XXXXXXX
XXXXX MORTGAGE COMPANY
By:
Xxxxxxx Xxxxx Real Estate
Funding
Corp., its General Partner
By:_________________________________
Name:______________________________
Title:_______________________________
A-2
EXHIBIT
A
MORTGAGE
LOAN SCHEDULE
See
attached
A-3
EXHIBIT
A-1
DATA
FILE
ELEMENTS
|
(1)
|
the
street address of the Mortgaged Property including the city,
state, county
and zip code;
|
|
(2)
|
a
code indicating whether the Mortgaged Property is a single family
residence, a 2-4 family dwelling, a PUD, a cooperative, a townhouse,
manufactured housing or a unit in a condominium
project;
|
|
(3)
|
the
Mortgage Interest Rate as of the Cut-off
Date;
|
|
(4)
|
the
current Monthly Payment;
|
|
(5)
|
original
loan term, number of months;
|
|
(6)
|
the
stated maturity date (and, if different, the stated maturity
date
indicated on the Mortgage Note on its date of
origination);
|
|
(7)
|
the
Stated Principal Balance of the Mortgage Loan as of the close
of business
on the Cut-off Date, after deduction of payments of principal
due on or
before the Cut-off Date;
|
|
(8)
|
the
Loan-to-Value Ratio;
|
|
(9)
|
a
code indicating whether the Mortgage Loan is an Interest Only
Mortgage
Loan;
|
|
(10)
|
a
code indicating whether the Mortgage Loan is a temporary buydown
(Y or
N);
|
|
(11)
|
the
Servicing Fee Rate;
|
|
(12)
|
a
code indicating whether the Mortgage Loan is covered by lender-paid
mortgage insurance (Y or N);
|
|
(13)
|
a
code indicating whether the Mortgage Loan is a Time$aver® Mortgage Loan (Y
or N);
|
|
(14)
|
the
Mortgagor's first and last name;
|
|
(15)
|
a
code indicating whether the Mortgaged Property is owner-occupied;
|
|
(16)
|
the
remaining months to maturity from the Cut-off Date, based on
the original
amortization schedule;
|
|
(17)
|
the
date on which the first Monthly Payment was due on the Mortgage
Loan;
|
|
(18)
|
the
last Due Date on which a Monthly Payment was actually applied
to the
actual principal balance;
|
|
(19)
|
the
original principal amount of the Mortgage Loan;
|
A-1-1
|
(20)
|
a
code indicating the purpose of the loan (i.e., purchase, financing,
rate/term refinancing, cash-out refinancing);
|
|
(21)
|
the
Mortgage Interest Rate at origination;
|
|
(22)
|
the
date on which the first Monthly Payment was due on the Mortgage
Loan;
|
|
(23)
|
a
code indicating the documentation style (i.e., full (providing
two years
employment verification - 2 years W-2’s and current pay stub or 2 years
1040’s for self employed borrowers), alternative or
reduced);
|
|
(24)
|
a
code indicating if the Mortgage Loan is subject to a PMI
Policy;
|
|
(25)
|
the
Appraised Value of the Mortgage
Property;
|
|
(26)
|
the
sale price of the Mortgaged Property, if
applicable;
|
|
(27)
|
the
Mortgagor’s Underwriting FICO
Score;
|
|
(28)
|
term
of prepayment penalty in years;
|
|
(29)
|
a
code indicating the product type;
|
|
(30)
|
a
code indicating the credit grade of the Mortgage
Loan;
|
|
(31)
|
the
unpaid balance of the Mortgage Loan as of the close of business
on the
Cut-off Date, after deduction of all payments of
principal;
|
|
(32)
|
the
Note date of the Mortgage Loan;
|
|
(33)
|
the
mortgage insurance certificate number and percentage of coverage,
if
applicable;
|
|
(34)
|
the
Mortgagor’s date of birth;
|
|
(35)
|
if
the Mortgage Loan is a MERS Mortgage Loan, the MIN Number for
each MERS
Mortgage Loan;
|
|
(36)
|
employer
name;
|
|
(37)
|
subsidy
program code;
|
|
(38)
|
servicer
name;
|
|
(39)
|
the
combined Loan-to-Value Ratio;
|
|
(40)
|
the
total Loan-to-Value Ratio;
|
|
(41)
|
whether
the Mortgage Loan is convertible (Y or
N);
|
A-1-2
|
(42)
|
a
code indicating whether the Mortgage Loan is a relocation loan
(Y or
N);
|
|
(43)
|
a
code indicating whether the Mortgage Loan is a leasehold loan
(Y or
N);
|
|
(44)
|
a
code indicating whether the Mortgage Loan is an Alt A loan (Y
or
N);
|
|
(45)
|
a
code indicating whether the Mortgage Loan is a no ratio loan
(Y or N);
|
|
(46)
|
a
code indicating whether the Mortgage Loan is a Pledged Asset
Mortgage Loan
(Y or N);
|
|
(47)
|
effective
LTV percentage for Pledged Asset Mortgage
Loans;
|
|
(48)
|
citizenship
type code;
|
|
(49)
|
a
code indicating whether the Mortgage Loan is a conforming or
non-conforming loan, based on the original loan
balance;
|
|
(50)
|
the
name of the client for which the Mortgage Loan was
originated;
|
|
(51)
|
the
program code;
|
|
(52)
|
the
loan sub doc code;
|
|
(53)
|
the
Company’s Mortgage Loan number;
|
|
(54)
|
a
field indicating whether the Mortgage Loan is a Home
Loan;
|
The
Company shall provide the following
For
the Home Mortgage Disclosure Act (HMDA):
|
(55)
|
the
Mortgagor’s and co-Mortgagor’s (if applicable)
ethnicity;
|
|
(56)
|
the
Mortgagor’s and co-Mortgagor’s (if applicable)
race;
|
|
(57)
|
lien
status;
|
|
(58)
|
for
cash-out refinance loans, the cash
purpose;
|
|
(59)
|
the
Mortgagor’s and co-Mortgagor’s (if applicable)
gender;
|
|
(60)
|
the
Mortgagor’s and co-Mortgagor’s (if applicable) social security
numbers;
|
|
(61)
|
the
number of units for the property;
|
|
(62)
|
the
year in which the property was
built;
|
|
(63)
|
the
qualifying monthly income of the
Mortgagor;
|
A-1-3
|
(64)
|
the
number of bedrooms contained in the
property;
|
|
(65)
|
a
code indicating first time buyer (Y or
N);
|
|
(66)
|
the
total rental income, if any;
|
The
Seller shall provide the following
for
the adjustable rate Mortgage Loans (if applicable):
|
(67)
|
the
maximum Mortgage Interest Rate under the terms of the Mortgage
Note;
|
|
(68)
|
the
Periodic Interest Rate Cap;
|
|
(69)
|
the
Index;
|
|
(70)
|
the
next Adjustment Date;
|
|
(71)
|
the
Gross Margin; and
|
|
(72)
|
the
lifetime interest rate cap.
|
A-1-4
EXHIBIT
B
CONTENTS
OF EACH MORTGAGE FILE
With
respect to each Mortgage Loan, the Retained and Custodial Mortgage Files
shall
include the respective items listed below, which shall be available for
inspection by the Purchaser and any prospective Purchaser, and which shall
be
retained by the Company in the Retained Mortgage File or Servicing File
or
delivered to the Custodian pursuant to the Custodial Agreement and Sections
2.1
and 2.3 of the Second Amended and Restated Master Seller’s Warranties and the
Servicing Agreement to which this Exhibit is attached (the
“Agreement”):
With
respect to each Custodial Mortgage File:
|
(1)
|
The
original Mortgage Note bearing all intervening endorsements,
endorsed “Pay
to the order of ______________, without recourse” and signed in the name
of the Company by an authorized officer (in the event that the
Mortgage
Loan was acquired by the Company in a merger, the signature must
be in the
following form: “[Company], successor by merger to [name of predecessor]”;
and in the event that the Mortgage Loan was acquired or originated
by the
Company while doing business under another name, the signature
must be in
the following form: “[Company], formerly know as [previous
name]”).
|
|
(2)
|
The
originals or certified true copies of all assumption, modification,
consolidation or extension agreements, with evidence of recording
noted
thereon if recordation is required to maintain the lien of the
mortgage or
is otherwise required, or, if recordation is not so required,
an original
or copy of any such assumption, modification, consolidation or
extension
agreements.
|
|
(3)
|
The
original Assignment of Mortgage for each Mortgage Loan, in form
and
substance acceptable for recording, from the Company to “______________”
or as otherwise directed by the Purchaser. If the Mortgage Loan
was
acquired by the Company in a merger, the Assignment of Mortgage
must be
made by “[Company], successor by merger to [name of predecessor].” If the
Mortgage Loan was acquired or originated by the Company while
doing
business under another name, the Assignment of Mortgage must
be by
“[Company], formerly know as [previous name].” Subject to the foregoing
and where permitted under the Applicable Laws of the jurisdiction
wherein
the Mortgaged property is located, such Assignments of Mortgage
may be
made by blanket assignments for Mortgage Loans secured by the
Mortgaged
Properties located in the same
county.
|
|
(4)
|
The
original of any personal endorsement, surety and/or guaranty
agreement
executed in connection with the Mortgage Note, if
any.
|
|
(5)
|
For
each Letter of Credit, the original advice of such Letter of
Credit
executed by the Pledge Holder and Xxxxx Fargo Bank, N.A.’s notice of
transfer, executed in blank (Exhibit A to the Letter of Credit)
of
beneficiary of such Letter of Credit to the Purchaser or its
designee.
|
With
respect to each Retained Mortgage File:
B-1
|
(6)
|
Except
as set forth below, and for each Mortgage Loan that is not a
MERS Mortgage
Loan, the original Mortgage, with evidence of recording thereon
or a
certified true and correct copy of the Mortgage sent for recordation.
If
in connection with any Mortgage Loan, the Company cannot deliver
or cause
to be delivered the original Mortgage with evidence of recording
thereon
on or prior to the related Closing Date because of a delay caused
by the
public recording office where such Mortgage has been delivered
for
recordation or because such Mortgage has been lost or because
such public
recording office retains the original recorded Mortgage, the
Company shall
deliver or cause to be delivered to the Custodian, a photocopy
of such
Mortgage, together with (i) in the case of a delay caused by
the public
recording office, an Officer’s Certificate of the Company stating that
such Mortgage has been dispatched to the appropriate public recording
office for recordation and that the original recorded Mortgage
or a copy
of such Mortgage certified by such public recording office to
be a true
and complete copy of the original recorded Mortgage will be promptly
delivered to the Custodian upon receipt thereof by the Company;
or (ii) in
the case of a Mortgage where a public recording office retains
the
original recorded Mortgage or in the case where a Mortgage is
lost after
recordation in a public recording office, a copy of such Mortgage
certified by such public recording office or by the title insurance
company that issued the title policy to be a true and complete
copy of the
original recorded Mortgage.
|
|
(7)
|
Originals
or certified true copies of all intervening assignments of the
Mortgage
necessary to show a complete chain of title from the original
mortgagee to
the Company, with evidence of recording thereon, or if any such
intervening assignment has not been returned from the applicable
recording
office or has been lost or if such public recording office retains
the
original recorded assignments of mortgage, the Company shall
deliver or
cause to be delivered to the Custodian, a photocopy of such intervening
assignment, together with (i) in the case of a delay caused by
the public
recording office, an Officer’s Certificate of the Company stating that
such intervening assignment of mortgage has been dispatched to
the
appropriate public recording office for recordation and that
such original
recorded intervening assignment of mortgage or a copy of such
intervening
assignment of mortgage certified by the appropriate public recording
office or by the title insurance company that issued the title
policy to
be a true and complete copy of the original recorded intervening
assignment of mortgage will be promptly delivered to the Custodian
upon
receipt thereof by the Company; or (ii) in the case of an intervening
assignment where a public recording office retains the original
recorded
intervening assignment or in the case where an intervening assignment
is
lost after recordation in a public recording office, a copy of
such
intervening assignment certified by such public recording office
to be a
true and complete copy of the original recorded intervening
assignment.
|
|
(8)
|
The
original mortgage policy of title insurance or other evidence
of title
such as a copy of the title commitment or copy of the preliminary
title
commitment.
|
|
(9)
|
Any
security agreement, chattel mortgage or equivalent executed in
connection
with the Mortgage.
|
B-2
With
respect to each Mortgage Loan, the Servicing File shall include each of
the
following items to the extent in the possession of the Company or in the
possession of the Company’s agent(s):
|
(10)
|
For
each Cooperative Loan, the original or a seller certified true
copy of the
following:
|
The
original Pledge Agreement entered into by the Mortgagor with respect to
such
Cooperative Loan;
UCC-3
assignment in blank (or equivalent instrument), sufficient under the laws
of the
jurisdiction where the related Cooperative Apartment is located to reflect
of
record the sale and assignment of the Cooperative Loan to the
Purchaser;
Original
assignment of Pledge Agreement in blank showing a complete chain of assignment
from the originator of the related Cooperative Loan to the Company;
Original
Form UCC-1 and any continuation statements with evidence of filing thereon
with
respect to such Cooperative Loan;
Cooperative
Shares with a Stock Certificate in blank attached;
Original
Proprietary Lease;
Original
Assignment of Proprietary Lease, in blank, and all intervening assignments
thereof;
Original
recognition agreement of the interests of the mortgagee with respect to
the
Cooperative Loan by the Cooperative, the stock of which was pledged by
the
related Mortgagor to the originator of such Cooperative Loan; and
Originals
of any assumption, consolidation or modification agreements relating to
any of
the items specified above.
|
(11)
|
Verification
of Mortgage Insurance.
|
|
(12)
|
The
original hazard insurance policy and, if required by law, flood
insurance
policy, in accordance with Section 4.10 of the
Agreement.
|
|
(13)
|
Residential
loan application.
|
|
(14)
|
Mortgage
Loan closing statement.
|
|
(15)
|
Verification
of employment and income, unless originated under the Company’s Limited
Documentation program, Xxxxxx Xxx Timesaver
Plus.
|
|
(16)
|
Verification
of acceptable evidence of source and amount of down
payment.
|
|
(17)
|
Credit
report on the Mortgagor, if
available.
|
B-3
|
(18)
|
Residential
appraisal report.
|
|
(19)
|
Photograph
of the Mortgaged Property.
|
|
(20)
|
Survey
of the Mortgaged Property, if required by the title company or
Applicable
Law.
|
|
(21)
|
Copy
of each instrument necessary to complete identification of any
exception
set forth in the exception schedule in the title policy, i.e.
map or plat,
restrictions, easements, sewer agreements, home association declarations,
etc.
|
|
(22)
|
All
required disclosure statements.
|
|
(23)
|
If
available, termite report, structural engineer’s report, water potability
and septic certification.
|
|
(24)
|
Sales
contract, if applicable.
|
|
(25)
|
Evidence
of payment of taxes and insurance premiums, insurance claim files,
correspondence, current and historical computerized data files,
and all
other processing, underwriting and closing papers and records
which are
customarily contained in a mortgage loan file and which are required
to
document the Mortgage Loan or to service the Mortgage
Loan.
|
|
(26)
|
Amortization
schedule, if available.
|
|
(27)
|
Original
power of attorney, if applicable.
|
In
the
event an Officer’s Certificate of the Company is delivered to the Custodian
because of a delay caused by the public recording office in returning any
recorded document, the Company shall deliver to the Custodian, within 240
days
of the related Closing Date, an Officer’s Certificate which shall (i) identify
the recorded document, (ii) state that the recorded document has not been
delivered to the Custodian due solely to a delay caused by the public recording
office, (iii) state the amount of time generally required by the applicable
recording office to record and return a document submitted for recordation,
and
(iv) specify the date the applicable recorded document will be delivered
to the
Custodian. The Company shall be required to deliver to the Custodian the
applicable recorded document by the date specified in (iv) above. An extension
of the date specified in (iv) above may be requested from the Purchaser,
which
consent shall not be unreasonably withheld.
B-4
EXHIBIT
C
FORM
OF CUSTODIAL AGREEMENT
See
attached
C-1
EXHIBIT
D
FORM
OF MASTER OPINION OF COUNSEL
|
Re:
|
Sale
of Mortgage Loans by
Xxxxx
Fargo Bank, N.A. to
Xxxxxxx
Xxxxx Mortgage Company
|
Dear
Sir/Madam:
I
am
_____ of Xxxxx Fargo Bank, N.A. and have acted as counsel to Xxxxx Fargo
Bank,
N.A. (the “Company”), with respect to certain matters in connection with the
sale by the Company of the mortgage loans (the “Mortgage Loans”) pursuant to
that certain Second Amended and Restated Master Seller’s Warranties and
Servicing Agreement (the “Seller’s Warranties and Servicing Agreement”) by and
between the Company and Xxxxxxx Xxxxx Mortgage Company (the “Purchaser”), dated
as of November 1, 2005, which sale is in the form of whole Mortgage Loans.
Capitalized terms not otherwise defined herein have the meanings set forth
in
the Seller’s Warranties and Servicing Agreement.
I
have
examined the following documents:
1. the
Seller’s Warranties and Servicing Agreement;
2. the
Custodial Agreement;
3. the
form
of endorsement of the Mortgage Notes; and
4. such
other documents, records and papers as I have deemed necessary and relevant
as a
basis for this opinion.
To
the
extent I have deemed necessary and proper, I have relied upon the
representations and warranties of the Company contained in the Seller’s
Warranties and Servicing Agreement. I have assumed the authenticity of
all
documents submitted to me as originals, the genuineness of all signatures,
the
legal capacity of natural persons and the conformity to the originals of
all
documents.
Based
upon the foregoing, it is my opinion that:
1. The
Company is a national banking association duly organized, validly existing
and
in good standing under the laws of the United States.
2. The
Company has the power to engage in the transactions contemplated by the
Seller’s
Warranties and Servicing Agreement and the Custodial Agreement and all
requisite
power, authority and legal right to execute and deliver the Seller’s Warranties
and Servicing Agreement, the Custodial Agreement and the Mortgage Loans,
and to
perform and observe the terms and conditions of such
instruments.
D-1
3. Each
person who, as an officer or attorney-in-fact of the Company, signed (a)
the
Seller’s Warranties and Servicing Agreement, (b) the Custodial Agreement , and
(c) any other document delivered prior hereto or on the date hereof in
connection with the sale and servicing of the Mortgage Loans in accordance
with
the Seller’s Warranties and Servicing Agreement was, at the respective times of
such signing and delivery, and is, as of the date hereof, duly elected
or
appointed, qualified and acting as such officer or attorney-in-fact, and
the
signatures of such persons appearing on such documents are their genuine
signatures.
4. Each
of
the Seller’s Warranties and Servicing Agreement, the Custodial Agreement and the
Mortgage Loans, has been duly authorized, executed and delivered by the
Company
and is a legal, valid and binding agreement enforceable in accordance with
its
terms, subject to the effect of insolvency, liquidation, conservatorship
and
other similar laws administered by the Federal Deposit Insurance Corporation
affecting the enforcement of contract obligations of insured banks and
subject
to the application of the rules of equity, including those respecting the
availability of specific performance, none of which will materially interfere
with the realization of the benefits provided thereunder or with the Purchaser’s
ownership of the Mortgage Loans.
5. The
Company has been duly authorized to allow any of its officers to execute
any and
all documents by original or facsimile signature in order to complete the
transactions contemplated by the Seller’s Warranties and Servicing Agreement and
the Custodial Agreement and in order to execute the endorsements to the
Mortgage
Notes and the assignments of the Mortgages, and the original or facsimile
signature of the officer at the Company executing the Seller’s Warranties and
Servicing Agreement, the Custodial Agreement, the endorsements to the Mortgage
Notes and the assignments of the Mortgages represents the legal and valid
signature of said officer of the Company.
6. Either
(i) no consent, approval, authorization or order of any court or governmental
agency or body is required for the execution, delivery and performance
by the
Company of or compliance by the Company with the Seller’s Warranties and
Servicing Agreement, the Custodial Agreement or the sale and delivery of
the
Mortgage Loans or the consummation of the transactions contemplated by
the
Seller’s Warranties and Servicing Agreement and the Custodial Agreement; or (ii)
any required consent, approval, authorization or order has been obtained
by the
Company.
7. Neither
the consummation of the transactions contemplated by, nor the fulfillment
of the
terms of the Seller’s Warranties and Servicing Agreement and the Custodial
Agreement, will conflict with or results in or will result in a breach
of or
constitutes or will constitute a default under the charter or by-laws of
the
Company, the terms of any indenture or other agreement or instrument to
which
the Company is a party or by which it is bound or to which it is subject,
or
violates any statute or order, rule, regulations, writ, injunction or decree
of
any court, governmental authority or regulatory body to which the Company
is
subject or by which it is bound.
8. There
is
no action, suit, proceeding or investigation pending or, to the best of
my
knowledge, threatened against the Company which, in my opinion, either
in any
one instance or in the aggregate, may result in any material adverse change
in
the business, operations, financial condition, properties or assets of
the
Company or in any material impairment of the right or ability of the Company
to
carry on its business substantially as now conducted or in any material
liability on the part of the Company or which would draw into question
the
validity of the Seller’s Warranties and Servicing Agreement, and the Custodial
Agreement, or of any action taken or to be taken in connection with the
transactions contemplated thereby, or which would be likely to impair materially
the ability of the Company to perform under the terms of the Seller’s Warranties
and Servicing Agreement and the Custodial Agreement.
D-2
9. For
purposes of the foregoing, I have not regarded any legal or governmental
actions, investigations or proceedings to be “threatened” unless the potential
litigant or governmental authority has manifested to the legal department
of the
Company or an employee of the Company responsible for the receipt of process
a
present intention to initiate such proceedings; nor have I regarded any
legal or
governmental actions, investigations or proceedings as including those
that are
conducted by state or federal authorities in connection with their routine
regulatory activities. The sale of each Mortgage Note and Mortgage as and
in the
manner contemplated by the Seller’s Warranties and Servicing Agreement is
sufficient fully to transfer all right, title and interest of the Company
thereto as noteholder and mortgagee, apart from the rights to service the
Mortgage Loans pursuant to the Seller’s Warranties and Servicing
Agreement.
10. The
form
of endorsement that is to be used with respect to the Mortgage Loans is
legally
valid and sufficient to duly endorse the Mortgage Notes to the Purchaser.
Upon
the completion of the endorsement of the Mortgage Notes and the completion
of
the assignments of the Mortgages, and the recording thereof, the endorsement
of
the Mortgage Notes, the delivery to the Custodian of the completed assignments
of the Mortgages, and the delivery of the original endorsed Mortgage Notes
to
the Custodian would be sufficient to permit the entity to which such Mortgage
Note is initially endorsed at the Purchaser’s direction, and to whom such
assignment of Mortgages is initially assigned at the Purchaser’s direction, to
avail itself of all protection available under Applicable Law against the
claims
of any present or future creditors of the Company, and would be sufficient
to
prevent any other sale, transfer, assignment, pledge or hypothecation of
the
Mortgages and the Mortgage Notes by the Company from being enforceable,
such
that in a properly presented and argued case under title 11, United States
Code
(the “Bankruptcy Code”), in which the Company were the debtor, a bankruptcy
court having jurisdiction over the Company would consider the transfer
of the
Mortgage Loans from the Company to the Purchaser to be a true sale of the
Mortgage Loans from the Company to the Purchaser and not a secured loan
by the
Purchaser to the Company and, accordingly, the Mortgage Loans and the payments
and other collections thereon (other than those at any given time that
may be
commingled with unrelated funds held by the Company) and the proceeds thereof
transferred to the Purchaser by the Company in accordance with the Company’s
Warranties and Servicing Agreement would not be deemed property of the
Company’s
estate for purposes of Section 541 of the Bankruptcy Code or be subject
to the
automatic stay provisions of Section 362 of the Bankruptcy
Code.
D-3
This
opinion is given to you for your sole benefit, and no other person or entity
is
entitled to rely hereon except that the purchaser or purchasers to which
you
initially and directly resell the Mortgage Loans may rely on this opinion
as if
it were addressed to them as of its date.
Sincerely,
D-4
EXHIBIT
E
ITEMS
TO BE INCLUDED IN MONTHLY REMITTANCE ADVICE
On
the
related Closing Date, the Company shall deliver to the Purchaser an initial
set-up report (the “Initial Set-up Report”), dated as of the related Cut-off
Date, which shall set forth certain information regarding the Mortgage
Pool.
Such information shall include, without limitation, the principal balance
of
each Mortgage Loan, the interest rate, delinquency status and any other
information requested by the Purchaser. For each month after the related
Closing
Date, the Company shall provide a monthly remittance advice report (the
“Monthly
Remittance Advice Reports”) to the Purchaser, which shall set forth for each
Mortgage Loan, the trial balance, interest rate, delinquency, foreclosure
and
related default information, and such other information as may be requested
by
the Purchaser. The Initial Set-up Report and the Monthly Remittance Advice
Reports will be delivered in an Excel format or in such other electronic
format
as agreed to by the parties. Each Initial Set-up Report and Monthly Remittance
Advice Report shall contain only such information as is readily available
to the
Company and is mutually agreed to by Company and the Purchaser.
E-1
EXHIBIT
F
FORM
OF ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT,
ASSUMPTION AND RECOGNITION AGREEMENT made this _____ day of __________________,
200_, among Xxxxx Fargo Bank, N.A., a __________________________ (the
“Servicer”), _________________________ a ________________________ (the
“Assignee”), and _____________________________, a _______________________ (the
“Assignor).
WHEREAS,
Xxxxxxx Xxxxx Mortgage Company and the Servicer have entered into a certain
Second Amended and Restated Master Seller’s Warranties and Servicing Agreement
dated as of November 1, 2005 (the “Servicing Agreement”), pursuant to which
the Servicer sold certain mortgage loans listed on the mortgage loan schedule
attached as an exhibit to the Servicing Agreement;
WHEREAS,
the Assignee has agreed on certain terms and conditions to purchase from
the
Assignor certain mortgage loans (the “Mortgage Loans”), which Mortgage Loans are
subject to the provisions of the Servicing Agreement and are listed on
the
mortgage loan schedule attached as Exhibit
1
hereto
(the “Mortgage Loan Schedule”);
WHEREAS,
pursuant to a Trust Agreement, dated as of [______ __], 200__ (the “Trust
Agreement”), between GS Mortgage Securities Corp., as Depositor, and [______],
as Trustee (the “Trustee”), the Assignee will transfer the Mortgage Loans to the
Trustee, together with the Assignee’s rights in the Sale and Servicing
Agreement;
NOW
THEREFORE, in consideration of the mutual promises contained herein and
other
good and valuable consideration, the receipt and sufficiency of which are
hereby
acknowledged, the parties agree as follows:
1. Assignment
and Assumption.
(a) The
Assignor hereby assigns to the Assignee all of its right, title and interest
in
and to the Mortgage Loans and Servicing Agreement, to the extent relating
to the
Mortgage Loans (other than the rights of the Assignor to indemnification
thereunder), and the Assignee hereby assumes all of the Assignor’s obligations
under the Servicing Agreement, to the extent relating to the Mortgage Loans
from
and after the date hereof, and the Servicer hereby acknowledges such assignment
and assumption and xxxxxx agrees to the release of the Assignor from any
obligations under the Servicing Agreement from and after the date hereof,
to the
extent relating to the Mortgage Loans. Notwithstanding the foregoing, it
is
understood that the Assignor is not released from liability for any breaches
of
the representations and warranties made in Section 3.6 of the Servicing
Agreement, and the Assignee is not undertaking any such liability
hereunder.
(b) The
Assignor represents and warrants to the Assignee that the Assignor has
not taken
any action which would serve to impair or encumber the Assignor’s ownership
interest in the Mortgage Loans since the date of the Servicing
Agreement.
F-1
(c) The
Servicer and the Assignor shall have the right to amend, modify or terminate
the
Servicing Agreement without the joinder of the Assignee with respect to
mortgage
loans not conveyed to the Assignee hereunder, provided, however, that such
amendment, modification or termination shall not affect or be binding on
the
Assignee.
2. Accuracy
of Servicing Agreement.
(a) The
Servicer and the Assignor represent and warrant to the Assignee that (i)
attached hereto as Exhibit
2
is a
true, accurate and complete copy of the Servicing Agreement, (ii) the Servicing
Agreement is in full force and effect as of the date hereof, (iii) the
Servicing
Agreement has not been amended or modified in any respect and (iv) no notice
of
termination has been given to the Servicer under the Servicing
Agreement.
3. Recognition
of Purchaser.
From
and
after the date hereof, the Servicer shall note the transfer of the Mortgage
Loans to the Assignee in its books and records, shall recognize the Assignee
as
the owner of the Mortgage Loans and shall service the Mortgage Loans for
the
benefit of the Assignee pursuant to the Servicing Agreement, the terms
of which
are incorporated herein by reference. It is the intention of the Assignor,
Servicer and Assignee that the Servicing Agreement shall be binding upon
and
inure to the benefit of the Servicer and the Assignee and their successors
and
assigns.
4. Representations
and Warranties of the Assignee.
The
Assignee hereby represents and warrants to the Assignor as follows:
(a) Decision
to Purchase.
The
Assignee represents and warrants that it is a sophisticated investor able
to
evaluate the risks and merits of the transactions contemplated hereby,
and that
it has not relied in connection therewith upon any statements or representations
of the Assignor or the Servicer other than those contained in the Servicing
Agreement or this Agreement.
(b) Authority.
The
Assignee hereto represents and warrants that it is duly and legally authorized
to enter into this Agreement and to perform its obligations hereunder and
under
the Servicing Agreement.
(c) Enforceability.
The
Assignee hereto represents and warrants that this Agreement has been duly
authorized, executed and delivered by it and (assuming due authorization,
execution and delivery thereof by each of the other parties hereto) constitutes
its legal, valid and binding obligation, enforceable in accordance with
its
terms, except as such enforcement may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors’
rights generally and by general equitable principles (regardless of whether
such
enforcement is considered in a proceeding in equity or at law).
F-2
5. Representations
and Warranties of the Assignor.
The
Assignor hereby represents and warrants to the Assignee as follows:
(a) The
Assignor has been duly organized and is validly existing as a limited
partnership in good standing under the laws of the State of New York with
full
power and authority (corporate and other) to enter into and perform its
obligations under the Servicing Agreement and this Assignment Agreement.
(b) This
Assignment Agreement has been duly executed and delivered by the Assignor,
and,
assuming due authorization, execution and delivery by each of the other
parties
hereto, constitutes a legal, valid, and binding agreement of the Assignor,
enforceable against it in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium, or other similar laws affecting
creditors’ rights generally and to general principles of equity regardless of
whether enforcement is sought in a proceeding in equity or at law.
(c) The
execution, delivery and performance by the Assignor of this Assignment
Agreement
and the consummation of the transactions contemplated thereby do not require
the
consent or approval of, the giving of notice to, the registration with,
or the
taking of any other action in respect of, any state, federal or other
governmental authority or agency, except such as has been obtained, given,
effected or taken prior to the date thereof.
(d) The
execution and delivery of this Assignment Agreement have been duly authorized
by
all necessary corporate action on the part of the Assignor; neither the
execution and delivery by the Assignor of this Assignment Agreement, nor
the
consummation by the Assignor of the transactions therein contemplated,
nor
compliance by the Assignor with the provisions thereof, will conflict with
or
result in a breach of, or constitute a default under, any of the provisions
of
the governing documents of the Assignor or any law, governmental rule or
regulation or any material judgment, decree or order binding on the Assignor
or
any of its properties, or any of the provisions of any material indenture,
mortgage, deed of trust, contract or other instrument to which the Assignor
is a
party or by which it is bound.
(e) There
are
no actions, suits or proceedings pending or, to the knowledge of the Assignor,
threatened, before or by any court, administrative agency, arbitrator or
governmental body (A) with respect to any of the transactions contemplated
by
this Assignment Agreement or (B) with respect to any other matter that
in the
judgment of the Assignor will be determined adversely to the Assignor and
will
if determined adversely to the Assignor materially adversely affect its
ability
to perform its obligations under this Assignment Agreement.
(f) Except
for the sale to the Assignee, the Assignor has not assigned or pledged
any
Mortgage Note or the related Mortgage or any interest or participation
therein.
F-3
(g) The
Assignor has not satisfied, canceled, or subordinated in whole or in part,
or
rescinded the Mortgage, and the Assignor has not released the Mortgaged
Property
from the lien of the Mortgage, in whole or in part, nor has the Assignor
executed an instrument that would effect any such release, cancellation,
subordination, or rescission. The Assignor has not released any Mortgagor,
in
whole or in part, except in connection with an assumption agreement or
other
agreement approved by the related Federal Insurer, to the extent such approval
was required.
It
is
understood and agreed that the representations and warranties set forth
in this
Section 5 shall survive delivery of the respective Custodial Mortgage Files
to
the Custodian and shall inure to the benefit of the Assignee and its assigns
notwithstanding any restrictive or qualified endorsement or assignment.
Upon the
discovery by the Assignor or the Assignee and its assigns of a breach of
the
foregoing representations and warranties, the party discovering such breach
shall give prompt written notice to the other parties to this Assignment
Agreement, and in no event later than two (2) Business Days from the date
of
such discovery. It is understood and agreed that the obligations of the
Assignor
set forth in Section 6 to repurchase a Mortgage Loan constitute the sole
remedies available to the Assignee and its assigns on their behalf respecting
a
breach of the representations and warranties contained in this Section
5. It is
further understood and agreed that the Assignor shall be deemed not to
have made
the representations and warranties in this Section 5 with respect to, and
to the
extent of, representations and warranties made, as to the matters covered
in
this Section 5, by the Servicer in the Servicing Agreement (or any officer’s
certificate delivered pursuant thereto).
It
is
understood and agreed that the Assignor has made no representations or
warranties to the Assignee other than those contained in this Section 5,
and no
other affiliate of the Assignor has made any representations or warranties
of
any kind to the Assignee.
6. Repurchase
of Mortgage Loans.
Upon
discovery or notice of any breach by the Assignor of any representation,
warranty, or covenant under this Assignment Agreement that materially and
adversely affects the value of any Mortgage Loan or the interest of the
Assignee
therein (it being understood that any such defect or breach shall be deemed
to
have materially and adversely affected the value of the related Mortgage
Loan or
the interest of the Assignee therein if the Assignee incurs a loss as a
result
of such defect or breach), the Assignee promptly shall request that the
Assignor
cure such breach and, if the Assignor does not cure such breach in all
material
respects within 60 days from the date on which it is notified of the breach,
the
Assignee may enforce the Assignor’s obligation hereunder to purchase such
Mortgage Loan from the Assignee. Notwithstanding the foregoing, however,
if such
breach is a Qualification Defect, such cure or repurchase must take place
within
75 days of the Defect Discovery Date.
In
the
event the Servicer has breached a representation or warranty under the
Servicing
Agreement that is substantially identical to a representation or warranty
breached by the Assignor hereunder, the Assignee shall first proceed against
the
Servicer. If the Servicer does not within 60 days after notification of
the
breach, take steps to cure such breach (which may include certifying to
progress
made and requesting an extension of the time to cure such breach, as permitted
under the Servicing Agreement) or purchase, or substitute for the Mortgage
Loan,
the Trustee shall be entitled to enforce the obligations of the Assignor
hereunder to cure such breach or to purchase the Mortgage Loan from the
Trust.
In such event, the Assignor shall succeed to the rights of the Assignee
to
enforce the obligations of the Servicer to cure such breach or repurchase
such
Mortgage Loan under the terms of the related Servicing Agreement with respect
to
such Mortgage Loan.
F-4
Except
as
specifically set forth herein, the Assignee shall have no responsibility
to
enforce any provision of this Assignment Agreement, to oversee compliance
hereof, or to take notice of any breach or default thereof.
7. Continuing
Effect.
Except
as
contemplated hereby, the Servicing Agreement shall remain in full force
and
effect in accordance with its terms.
8. Governing
Law.
THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS HEREUNDER SHALL BE GOVERNED BY
AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
9. Notices.
Any
notices or other communications permitted or required hereunder or under
the
Servicing Agreement 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 transmitted by telex, telegraph
or
telecopier and confirmed by a similar mailed writing, to: (i) in the case
of the
Servicer, [_________________, ____________________] or such address as
may
hereafter be furnished by the Servicer; (ii) in the case of the Assignee,
_______________, _______________, Attention: ________________, or such
other
address as may hereafter be furnished by the Assignee, and (iii) in the
case of
the Assignor, __________________, Attention: _________________, or such
other
address as may hereafter be furnished by the Assignor.
10. Counterparts.
This
Agreement may be executed in counterparts, each of which when so executed
shall
be deemed to be an original and all of which when taken together shall
constitute one and the same instrument.
11. Definitions.
Any
capitalized term used but not defined in this Agreement has the same meaning
as
in the Servicing Agreement.
F-5
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement the day
and
year first above written.
ASSIGNEE:
By:
Name:
Title:
ASSIGNOR:
By:
Name:
Title:
Acknowledged
by:
SERVICER:
By:
Name:
Title:
F-6
EXHIBIT
G
FORM
OF COMPANY OFFICER’S CERTIFICATE
I,
______________________, hereby certify that I am a duly elected [Vice President]
of Xxxxx Fargo Bank, N.A., a national banking association organized under
the
laws of the United States (the “Company”) and further as follows:
1. Attached
hereto as Exhibit 1 is a true, correct and complete copy of the articles
of
association of the Company which is in full force and effect on the date
hereof.
2. Attached
hereto as Exhibit 2 is a true, correct and complete copy of the bylaws
of the
Company which are in effect on the date hereof.
3. The
execution and delivery by the Company of the Second Amended and Restated
Master
Seller’s Warranties and Servicing Agreement, dated as of November 1, 2005
(the “Sale and Servicing Agreement”) and the Custodial Agreement, dated as of
August 1, 2004 (the “Custodial Agreement” and, together with the Sale and
Servicing Agreement, the “Agreements”) are in the ordinary course of business of
the Company.
4. A
true
and correct copy of the resolution of the Mortgage Banking Committee of
the
Board of Directors of the Company authorizing the Company to enter into
the
Agreements is attached hereto as Exhibit 3.
5. Each
person who, as an officer or representative of the Company, signed (a)
the Sale
and Servicing Agreement, or (b) any other document delivered prior hereto
or on
the date hereof in connection with any transaction described in the Agreements
was, at the respective times of such signing and delivery a duly elected
or
appointed, qualified and acting officer or representative of the Company
and the
signatures of such persons appearing on such documents are their genuine
signatures.
6. No
proceedings for dissolution, merger, consolidation, liquidation, conservatorship
or receivership of the Company or for the sale of all or substantially
all of
its assets is pending, or to my knowledge threatened, and no such proceeding
is
contemplated by the Company.
IN
WITNESS WHEREOF, I have hereunto signed my name and affixed the seal of
the
Company.
Dated:
By:
Title:
Vice President
G-1
I,
__________________ the Secretary of __________________________, hereby
certify
that _______________________ is a duly elected and acting Vice President
of the
Company and that the signature appearing above is his genuine
signature.
IN
WITNESS WHEREOF, I have hereunto signed my name.
Dated:
By:
Title:
Secretary
G-2
EXHIBIT
H
FORM
OF ANNUAL CERTIFICATION
I,
______________________, Vice President of Xxxxx Fargo Bank, N.A. (the
“Servicer”), certify to __________________, and its officers, directors, agents
and affiliates (in its role as ____________, the “____________”), and with the
knowledge and intent that they will rely upon this certification,
that:
(i) Based
on
my knowledge, the information relating to the Mortgage Loans and the servicing
thereof submitted by the Servicer to the ___________ which is used in connection
with preparation of the reports on Form 8-K and the annual report on Form
10-K
filed with the Securities and Exchange Commission with respect to each
transaction listed on the attached Exhibit A, taken as a whole, does not
contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances under
which
such statements were made, not misleading as of the date of this
certification;
(ii) The
servicing information required to be provided to the _____________ by the
Servicer under the relevant servicing agreements has been provided to the
______________;
(iii) I
am
responsible for reviewing the activities performed by the Servicer under
the
relevant servicing agreements and based upon the review required by the
relevant
servicing agreements, and except as disclosed in the Annual Statement of
Compliance, the Annual Independent Public Accountant’s Servicing Report and all
servicing reports, officer’s certificates and other information relating to the
servicing of the Mortgage Loans submitted to the ___________, the Servicer
has,
as of the date of this certification fulfilled its obligations under the
relevant servicing agreements; and
(iv) I
have
disclosed to the ___________ all significant deficiencies relating to the
Servicer’s compliance with the minimum servicing standards in accordance with a
review conducted in compliance with the Uniform Single Attestation Program
for
Mortgage Bankers or similar standard as set forth in the relevant servicing
agreements.
(v) The
Servicer shall indemnify and hold harmless the ___________ and its officers,
directors, agents and affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments and other costs and expenses arising out of or based upon a breach
by
the Servicer or any of its officers, directors, agents or affiliates of
its
obligations under this Certification or the negligence, bad faith or willful
misconduct of the Servicer in connection therewith. If the indemnification
provided for herein is unavailable or insufficient to hold harmless the
___________, then the Servicer agrees that it shall contribute to the amount
paid or payable by the ___________ as a result of the losses, claims, damages
or
liabilities of the ___________ in such proportion as is appropriate to
reflect
the relative fault of the ___________ on the one hand and the Servicer
on the
other in connection with a breach of the Servicer’s obligations under this
Certification or the Servicer’s negligence, bad faith or willful misconduct in
connection therewith.
H-1
IN
WITNESS WHEREOF, I have hereunto signed my name and affixed the seal of
the
Servicer.
Dated:
By:
Name:
Title:
H-2
EXHIBIT
I
SERVICING
CRITERIA TO BE ADDRESSED
IN
ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by [the Company][Name of Subservicer]
shall address, as a minimum, the criteria identified below as “Applicable
Servicing Criteria”
|
Reg
AB Reference
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
Inapplicable
Servicing
Criteria
|
|
General
Servicing Considerations
|
|||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
||
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
||
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
||
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on
the party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance
with the
terms of the transaction agreements.
|
||
|
Cash
Collection and Administration
|
|||
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial
bank
accounts and related bank clearing accounts no more than two
business days
following receipt, or such other number of days specified in
the
transaction agreements.
|
||
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
||
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are
made,
reviewed and approved as specified in the transaction agreements.
|
||
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are
separately
maintained (e.g., with respect to commingling of cash) as set
forth in the
transaction agreements.
|
||
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities
Exchange Act.
|
||
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized access.
|
||
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities
related
bank accounts, including custodial accounts and related bank
clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling
items. These
reconciling items are resolved within 90 calendar days of their
original
identification, or such other number of days specified in the
transaction
agreements.
|
||
|
Investor
Remittances and Reporting
|
|||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission,
are
maintained in accordance with the transaction agreements and
applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance
with the
terms specified in the transaction agreements; (C) are filed
with the
Commission as required by its rules and regulations; and (D)
agree with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the Servicer.
|
||
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with
timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
||
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the
Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
||
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank statements.
|
I-1
|
Reg
AB Reference
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
Inapplicable
Servicing
Criteria
|
|
Pool
Asset Administration
|
|||
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the
transaction
agreements or related mortgage loan documents.
|
||
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the
transaction
agreements
|
||
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements
in the
transaction agreements.
|
||
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance
with the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements,
and
allocated to principal, interest or other items (e.g., escrow)
in
accordance with the related mortgage loan documents.
|
||
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal balance.
|
||
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's mortgage
loans (e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
||
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions,
as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
||
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period
a mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including,
for example,
phone calls, letters and payment rescheduling plans in cases
where
delinquency is deemed temporary (e.g., illness or unemployment).
|
||
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with
variable
rates are computed based on the related mortgage loan documents.
|
||
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period
specified in
the transaction agreements; (B) interest on such funds is paid,
or
credited, to obligors in accordance with applicable mortgage
loan
documents and state laws; and (C) such funds are returned to
the obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction agreements.
|
||
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that
such support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
||
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the Servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
||
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of
days
specified in the transaction agreements.
|
||
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
||
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set
forth in
the transaction agreements.
|
I-2
EXHIBIT
J
SARBANES
CERTIFICATION
|
Re:
|
The
[ ] agreement dated as of [ ], 200[ ]
(the “Agreement”), among [IDENTIFY
PARTIES]
|
I,
________________________________, the _______________________ of [Name
of
Servicer] (the “Servicer”), certify to [the Purchaser], [the Depositor], and the
[Master Servicer] [Securities Administrator] [Trustee], and their officers,
with
the knowledge and intent that they will rely upon this certification,
that:
(1) I
have
reviewed the servicer compliance statement of the Servicer provided in
accordance with Item 1123 of Regulation AB (the “Compliance Statement”), the
report on assessment of the Servicer’s compliance with the servicing criteria
set forth in Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided
in accordance with Rules 13a-18 and 15d-18 under Securities Exchange Act
of
1934, as amended (the “Exchange Act”) and Item 1122 of Regulation AB (the
“Servicing Assessment”), the registered public accounting firm’s attestation
report provided in accordance with Rules 13a-18 and 15d-18 under the Exchange
Act and Section 1122(b) of Regulation AB (the “Attestation Report”), and all
servicing reports, officer’s certificates and other information relating to the
servicing of the Mortgage Loans by the Servicer during 200[ ] that were
delivered by the Servicer to the [Depositor] [Master Servicer] [Securities
Administrator] [Trustee] pursuant to the Agreement (collectively, the “Servicer
Servicing Information”);
(2) Based
on
my knowledge, the Servicer Servicing Information, taken as a whole, does
not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances
under
which such statements were made, not misleading with respect to the period
of
time covered by the Servicer Servicing Information;
(3) Based
on
my knowledge, all of the Servicer Servicing Information required to be
provided
by the Servicer under the Agreement has been provided to the [Depositor]
[Master
Servicer] [Securities Administrator] [Trustee];
(4) I
am
responsible for reviewing the activities performed by the Servicer under
the
Agreement, and based on my knowledge and the compliance review conducted
in
preparing the Compliance Statement and except as disclosed in the Compliance
Statement, the Servicing Assessment or the Attestation Report, the Servicer
has
fulfilled its obligations under the Agreement; and
(5) The
Compliance Statement required to be delivered by the Servicer pursuant
to the
Agreement, and the Servicing Assessment and Attestation Report required
to be
provided by the Servicer and by each Subservicer and Subcontractor pursuant
to
the Agreement have been provided to the [Depositor] [Master Servicer].
Any
material instances of noncompliance described in such reports have been
disclosed to the [Depositor] [Master Servicer]. Any material instance of
noncompliance with the Servicing Criteria has been disclosed in such
reports.
Date:
By:
Name:
Title:
J-1
