------------------------
EXECUTION COPY
12/07/05
------------------------
BANK OF AMERICA, NATIONAL ASSOCIATION
PURCHASER
AND
XXXXX FARGO BANK, N.A.
COMPANY
AMENDED AND RESTATED MASTER SELLER'S WARRANTIES
AND SERVICING AGREEMENT
DATED AS OF DECEMBER 1, 2005
FIXED RATE AND ADJUSTABLE RATE MORTGAGE LOANS
TABLE OF CONTENTS
ARTICLE I DEFINITIONS 1
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; POSSESSION OF CUSTODIAL
MORTGAGE FILES; BOOKS AND RECORDS; CUSTODY AGREEMENT;
DELIVERY OF DOCUMENTS 14
Section 2.01. Conveyance of Mortgage Loans; Possession of Custodial Mortgage Files; Maintenance of
Retained Mortgage File and Servicing Files.................................................14
Section 2.02. Books and Records; Transfers of Mortgage Loans.............................................15
Section 2.03. Custody Agreement; Delivery of Documents...................................................16
ARTICLE III REPRESENTATIONS AND WARRANTIES REMEDIES AND BREACH 18
Section 3.01. Company Representations and Warranties.....................................................18
Section 3.02. Representations and Warranties Regarding Individual Mortgage Loans.........................21
Section 3.03. Repurchase.................................................................................38
ARTICLE IV ADMINISTRATION AND SERVICING OF MORTGAGE LOANS 40
Section 4.01. Company to Act as Servicer.................................................................40
Section 4.02. Liquidation of Mortgage Loans..............................................................42
Section 4.03. Collection of Mortgage Loan Payments.......................................................43
Section 4.04. Establishment of and Deposits to Custodial Account.........................................43
Section 4.05. Permitted Withdrawals From Custodial Account...............................................45
Section 4.06. Establishment of and Deposits to Escrow Account............................................46
Section 4.07. Permitted Withdrawals From Escrow Account..................................................47
Section 4.08. Payment of Taxes, Insurance and Other Charges..............................................48
Section 4.09. Protection of Accounts.....................................................................48
Section 4.10. Maintenance of Hazard Insurance............................................................48
Section 4.11. Maintenance of Mortgage Impairment Insurance...............................................50
Section 4.12. Maintenance of Fidelity Bond and Errors and Omissions Insurance............................50
Section 4.13. Inspections................................................................................51
Section 4.14. Restoration of Mortgaged Property..........................................................51
Section 4.15. Maintenance of PMI Policy and LPMI Policy; Claims..........................................52
Section 4.16. Title, Management and Disposition of REO Property..........................................52
Section 4.17. Real Estate Owned Reports..................................................................54
Section 4.18. Liquidation Reports........................................................................54
Section 4.19. Reports of Foreclosures and Abandonments of Mortgaged Property.............................54
Section 4.20. Notification of Adjustments................................................................54
Section 4.21. Credit Reporting; Xxxxx-Xxxxx-Xxxxxx Act...................................................55
Section 4.22. Confidentiality/Protection of Customer Information.........................................55
Section 4.26 Establishment of and Deposits to Subsidy Account...........................................57
ARTICLE V PAYMENTS TO PURCHASER 59
Section 5.01. Remittances................................................................................59
Section 5.02. Statements to Purchaser....................................................................59
Section 5.03. Monthly Advances by Company................................................................60
i
ARTICLE VI GENERAL SERVICING PROCEDURES 60
Section 6.01. Transfers of Mortgaged Property............................................................60
Section 6.02. Satisfaction of Mortgages and Release of Retained Mortgage Files...........................61
Section 6.03. Servicing Compensation.....................................................................62
Section 6.04. Annual Statement as to Compliance..........................................................62
Section 6.05. Annual Independent Public Accountants' Servicing Report....................................62
Section 6.06. Right to Examine Company Records...........................................................63
Section 6.07. Compliance with REMIC Provisions...........................................................65
ARTICLE VII COMPANY TO COOPERATE 65
Section 7.01. Provision of Information...................................................................65
Section 7.02. Financial Statements; Servicing Facility...................................................66
ARTICLE VIII THE COMPANY 66
Section 8.01. Indemnification; Third Party Claims........................................................66
Section 8.02. Merger or Consolidation of the Company.....................................................67
Section 8.03. Limitation on Liability of Company and Others..............................................67
Section 8.04. Limitation on Resignation and Assignment by Company........................................68
ARTICLE IX REMOVAL OF MORTGAGE LOANS FROM AGREEMENT 68
Section 9.01. Removal of Mortgage Loans from Inclusion Under this Agreement..............................68
ARTICLE X DEFAULT 79
Section 10.01. Events of Default..........................................................................79
Section 10.02. Waiver of Defaults.........................................................................80
ARTICLE XX XXXXXXXXXXX 00
Section 11.01. Termination................................................................................80
Section 11.02. Termination Without Cause..................................................................81
ARTICLE XII MISCELLANEOUS PROVISIONS 81
Section 12.01. Successor to Company.......................................................................81
Section 12.02. Amendment..................................................................................82
Section 12.03. Governing Law..............................................................................82
Section 12.04. Arbitration................................................................................83
Section 12.05. Duration of Agreement......................................................................83
Section 12.06. Notices....................................................................................83
Section 12.07. Severability of Provisions.................................................................84
Section 12.08. Relationship of Parties....................................................................84
Section 12.09. Execution; Successors and Assigns..........................................................84
Section 12.10. Recordation of Assignments of Mortgage.....................................................84
Section 12.11. Assignment by Purchaser....................................................................85
Section 12.12. Solicitation of Mortgagor..................................................................85
Section 12.13. Further Agreements.........................................................................85
Section 12.14. Confidential Information...................................................................85
Section 12.15. Counterparts...............................................................................85
Section 12.16. Exhibits...................................................................................85
ii
Section 12.17. General Interpretive Principles............................................................86
Section 12.18. Reproduction of Documents..................................................................86
Section 12.19. Buydown Loan Aggregate Limitation..........................................................86
EXHIBITS
Exhibit A Form of Assignment and Conveyance
Agreement
Exhibit B Form of Assignment, Assumption and
Recognition Agreement
Exhibit C Custody Agreement
Exhibit D Contents of each Retained Mortgage File,
Custodial Mortgage File and Servicing File
Exhibit E Data File
Exhibit F Servicing System Guidelines and Requirements
Exhibit G Monthly Remittance Advice
Exhibit H Servicing Criteria
Exhibit I Sarbanes Certification
Exhibit J Form of Xxxxxxxx-Xxxxx Back-up Certification
iii
This is an Amended and Restated Master Seller's Warranties and Servicing
Agreement for fixed rate and adjustable rate residential first lien mortgage
loans, dated and effective as of December 1, 2005, and is executed between Bank
of America, National Association, as purchaser (the "Purchaser"), and Xxxxx
Fargo Bank, N.A., as seller and servicer (the "Company").
W I T N E S S E T H
WHEREAS, the Purchaser has agreed to purchase from the Company
and the Company has agreed to sell to the Purchaser from time to time (each a
"Transaction") on a servicing retained basis certain first lien fixed rate and
adjustable rate residential mortgage loans (the "Mortgage Loans") which shall be
delivered as whole loans (each a "Loan Package") on various dates (each a
"Closing Date") as provided for in certain Assignment and Conveyance Agreements
by and between the Purchaser and the Company as executed in conjunction with
each Transaction; and
WHEREAS, each of the Mortgage Loans is secured by a mortgage, deed of
trust or other security instrument creating a first lien on a residential
dwelling located in the jurisdiction indicated on the related Mortgage Loan
Schedule; and
WHEREAS, the Purchaser and the Company wish to prescribe the manner of
purchase of the Mortgage Loans and the conveyance, servicing and control of the
Mortgage Loans.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth, and for other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the Purchaser and the Company agree as
follows:
ARTICLE I
DEFINITIONS
Whenever used herein, the following words and phrases, unless the
content otherwise requires, shall have the following meanings:
Accepted Servicing Practices: With respect to any Mortgage Loan,
procedures (including collection procedures) that comply with applicable
federal, state and local law, and that the Company customarily employs and
exercises in servicing and administering mortgage loans for its own account, the
terms of the related Mortgage and Mortgage Note and accepted mortgage servicing
practices of prudent mortgage lending institutions which service mortgage loans
of the same type as the Mortgage Loans in the jurisdiction where the related
Mortgaged Property is located.
Adjustable Rate Mortgage Loan: A Mortgage Loan that contains a provision
pursuant to which the Mortgage Interest Rate is adjusted periodically.
Adjustment Date: As to each Adjustable Rate Mortgage Loan, the date on
which the Mortgage Interest Rate is adjusted in accordance with the terms of the
related Mortgage Note and Mortgage.
1
Agency/Agencies: Xxxxxx Xxx, Xxxxxxx Mac or GNMA, 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 Amended and Restated Master 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.
Appraisal: A written appraisal of a Mortgaged Property made by a
Qualified Appraiser, which appraisal must be written, in form and substance,
acceptable to Xxxxxx Xxx and Xxxxxxx Mac, as applicable, and satisfy the
requirements of Title XI of the Financial Institution, Reform, Recovery and
Enforcement Act of 1989 and the regulations promulgated thereunder, in effect as
of the date of the Appraisal.
Appraised Value: With respect to any Mortgage Loan, the lesser of (i)
the value set forth on the Appraisal made in connection with the origination of
the related Mortgage Loan as the value of the related Mortgaged Property, or
(ii) the purchase price paid for the Mortgaged Property, provided, however, that
in the case of a refinanced Mortgage Loan, such value shall be based solely on
the Appraisal made in connection with the origination of such Mortgage Loan.
Assignment and Conveyance Agreement: The agreement substantially in the
form of Exhibit A attached hereto.
Assignment, Assumption and Recognition Agreement: The agreement
substantially in the form of Exhibit B attached hereto.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form, sufficient under the laws
of the jurisdiction wherein the related Mortgaged Property is located to reflect
the sale of the Mortgage to the Purchaser or if the related Mortgage has been
recorded in the name of MERS or its designee, such actions as are necessary to
cause the Purchaser to be shown as the owner of the related Mortgage on the
records of MERS for purposes of the system of recording transfers of beneficial
ownership of mortgages maintained by MERS, including assignment of the MIN
Number which will appear either on the Mortgage or the Assignment of Mortgage to
MERS.
Assignment of Mortgage Note and Pledge Agreement: With respect to a
Cooperative Loan, an assignment of the Mortgage Note and Pledge Agreement.
Assignment of Proprietary Lease: With respect to a Cooperative Loan, an
assignment of the Proprietary Lease sufficient under the laws of the
jurisdiction wherein the related Cooperative Apartment is located to effect the
assignment of such Proprietary Lease.
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.
2
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.
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.
Closing Date: The date or dates, set forth in the related Commitment
Letter, on which from time to time the Purchaser shall purchase and the Company
shall sell the Mortgage Loans listed on the respective Mortgage Loan Schedule
for each Transaction.
Code: The Internal Revenue Code of 1986, as it may be amended from time
to time or any successor statute thereto, and applicable U.S. Department of the
Treasury regulations issued pursuant thereto.
Commission: The United States Securities and Exchange Commission.
Commitment Letter: The commitment letter between the Company and the
Purchaser which sets forth, among other things, the Purchaser Price for certain
Mortgage Loans described therein to be sold by the Company and purchased by the
Purchaser on the Closing Date set forth therein.
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 Employees: As defined in Section 4.12.
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.
3
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(R) Version 5.6b, 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 4.04.
Custody Agreement: The agreement governing the retention of the
originals of each Mortgage Note, Assignment of Mortgage and other Mortgage Loan
Documents, a form of which is annexed hereto as Exhibit C.
Custodial Mortgage File: With respect to each Mortgage Loan, the file
consisting of the Mortgage Loan Documents listed as items 1 through 5 of Exhibit
D attached hereto, which have been delivered to the Custodian as of the Closing
Date.
Custodian: The custodian under the Custody Agreement, or its successor
in interest or assigns, or any successor to the Custodian under the Custody
Agreement as provided therein.
Cut-off Date: With respect to each Transaction, the first day of the
month in which the Closing Date occurs.
Data File: The electronic data file prepared by the Company and
delivered to the Purchaser including the data fields set forth on Exhibit E with
respect to each Mortgage Loan, in relation to each Transaction.
Deleted Mortgage Loan: A Mortgage Loan which is repurchased by the
Company in accordance with the terms of this Agreement and which is, in the case
of a substitution pursuant to Section 3.03, replaced or to be replaced with a
Qualified Substitute Mortgage Loan.
Depositor: The depositor, as such term is defined in Regulation AB, with
respect to any Securitization Transaction.
4
Determination Date: The Business Day immediately preceding the related
Remittance Date.
Due Date: The day of the month on which the Monthly Payment is due on a
Mortgage Loan, exclusive of any days of grace, as specified in the related
Mortgage Note.
Due Period: With respect to each Remittance Date, the period commencing
on the second day of the month preceding the month of such Remittance Date and
ending on the first day of the month of such Remittance Date.
Errors and Omissions Insurance Policy: An errors and omissions insurance
policy to be maintained by the Company pursuant to Section 4.12.
Escrow Account: The separate account or accounts created and maintained
pursuant to Section 4.06.
Escrow Payments: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, mortgage insurance premiums, fire and hazard insurance
premiums, condominium charges, and any other payments required to be escrowed by
the Mortgagor with the mortgagee pursuant to the Mortgage or any other related
document.
Event of Default: Any one of the conditions or circumstances enumerated
in Section 10.01.
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, or any successor
thereto.
Fidelity Bond: A fidelity bond to be maintained by the Company pursuant
to Section 4.12.
Xxxxxxx Mac: The Federal Home Loan Mortgage Corporation, or any
successor thereto.
GNMA: The Government National Mortgage Association, or any successor
thereto.
Gross Margin: With respect to each Adjustable Rate Mortgage Loan, the
fixed percentage amount set forth in the related Mortgage Note which is added to
the Index in order to determine the related Mortgage Interest Rate, as set forth
in the respective Mortgage Loan Schedule.
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," (excluding New Jersey "Covered Home Loans" as
that term is defined in clause (1) of the definition of that term in the New
Jersey Home Ownership Security Act of 2002), "high risk
5
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(R) Version 5.6b, Appendix
E, as revised from time to time and in effect on each related Closing Date.
Index: With respect to any Adjustable Rate Mortgage Loan, the index
identified on the related Mortgage Loan Schedule and set forth in the related
Mortgage Note for the purpose of calculating the interest therein.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged Property,
including LPMI Proceeds, if applicable.
Interest Only Mortgage Loan: A Mortgage Loan for which an interest-only
payment feature is allowed during the interest-only period set forth in the
related Mortgage Note.
Investor: With respect to each MERS Designated Mortgage Loan, the Person
named on the MERS System as the investor pursuant to the MERS Procedures Manual.
Lender Paid Mortgage Insurance Policy or LPMI Policy: A PMI Policy for
which the Purchaser or the Company pays all premiums from its own funds, without
reimbursement therefor.
Liquidation Proceeds: Cash 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 or otherwise, or the sale of the
related Mortgaged Property if the Mortgaged Property is acquired in satisfaction
of the Mortgage Loan.
Loan Package: As defined in the Recitals of this Agreement.
Loan-to-Value Ratio or LTV: With respect to any Mortgage Loan, the ratio
of the original loan amount of the Mortgage Loan at its origination (unless
otherwise indicated) to the Appraised Value of the Mortgaged Property.
LPMI Proceeds: Proceeds of any Lender Paid Mortgage Insurance Policy.
Material Adverse Change: (a) a material adverse change in, or a material
adverse effect upon, the operations, business, properties, condition (financial
or otherwise) or prospects of the Company; (b) a material impairment of the
ability of the Company to perform under this Agreement or any related
agreements; or (c) a material adverse effect upon the legality, validity,
binding effect or enforceability of this Agreement against the Company (unless
such material adverse effect is directly caused by an action of the Purchaser
which can be remedied by the Purchaser).
MERS: MERSCORP, Inc., its successors and assigns.
MERS Designated Mortgage Loan: A Mortgage Loan for which (a) the Company
has designated or will designate MERS as, and has taken or will take such action
as is necessary to
6
cause MERS to be, the mortgagee of record, as nominee for the Company, in
accordance with MERS Procedures Manual and (b) the Company has designated or
will designate the Custodian as the Investor on the MERS System.
MERS Procedures Manual: The MERS Procedures Manual, as it may be
amended, supplemented or otherwise modified from time to time.
MERS Report: The report from the MERS System listing MERS Designated
Mortgage Loans and other information.
MERS System: MERS mortgage electronic registry system, as more
particularly described in the MERS Procedures Manual.
Monthly Advance: The portion of each Monthly Payment that is delinquent
with respect to each Mortgage Loan at the close of business on the Determination
Date required to be advanced by the Company pursuant to Section 5.03 on the
Business Day immediately preceding the Remittance Date of the related month.
Monthly Payment: The scheduled monthly payment of principal and interest
on a Mortgage Loan or in the case of an Interest Only Mortgage Loan, payments of
(i) interest, or (ii) principal and interest, as applicable, on a Mortgage Loan.
Moody's: Xxxxx'x Investors Service, Inc.
Mortgage: The mortgage, deed of trust or other instrument securing a
Mortgage Note, which creates a first lien on an unsubordinated estate in fee
simple in real property securing the Mortgage Note, or the Pledge Agreement
securing the Mortgage Note for a Cooperative Loan.
Mortgage Impairment Insurance Policy: A mortgage impairment or blanket
hazard insurance policy as described in Section 4.11.
Mortgage Interest Rate: The annual rate of interest borne on a Mortgage
Note in accordance with the provisions of the Mortgage Note.
Mortgage Loan: An individual Mortgage Loan which is the subject of this
Agreement, each Mortgage Loan originally sold and subject to this Agreement
being identified on the related Mortgage Loan Schedule, which Mortgage Loan
includes without limitation the Retained Mortgage File, the Custodial Mortgage
File, the Monthly Payments, Principal Prepayments, Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds, REO Disposition Proceeds and all
other rights, benefits, proceeds and obligations arising from or in connection
with such Mortgage Loan.
Mortgage Loan Documents: With respect to a Mortgage Loan, the documents
listed on Exhibit D attached hereto.
Mortgage Loan Remittance Rate: With respect to each Mortgage Loan, the
annual rate of interest remitted to the Purchaser, which shall be equal to the
related Mortgage Interest Rate minus the Servicing Fee Rate.
7
Mortgage Loan Schedule: With respect to each Transaction, a schedule of
Mortgage Loans setting forth the following information with respect to each
Mortgage Loan: (1) the Company's Mortgage Loan number; (2) the city, state and
zip code of the Mortgaged Property; (3) a code indicating whether the Mortgaged
Property is a single family residence, two-family residence, three-family
residence, four-family residence, planned unit development, Cooperative Loan,
manufactured housing or condominium; (4) the current Mortgage Interest Rate; (5)
the current net Mortgage Interest Rate; (6) the current Monthly Payment; (7)
with respect to each Adjustable Rate Mortgage Loan, the Gross Margin; (8) the
original term to maturity; (9) the scheduled maturity date; (10) the principal
balance of the Mortgage Loan as of the Cut-off Date after deduction of payments
of principal due on or before the Cut-off Date whether or not collected; (11)
the Loan-to-Value Ratio; (12) with respect to each Adjustable Rate Mortgage
Loan, the next Adjustment Date; (13) with respect to each Adjustable Rate
Mortgage Loan, the lifetime Mortgage Interest Rate cap; (14) a code indicating
whether the Mortgage Loan is convertible or not; (15) a code indicating the
mortgage guaranty insurance company; (16) a code indicating whether the Mortgage
Loan is an Interest Only Mortgage Loan; and (17) the Servicing Fee.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
Mortgaged Property: The real property securing repayment of the debt
evidenced by a Mortgage Note, or with respect to a Cooperative Loan, the related
Cooperative Apartment.
Mortgagor: The obligor on a Mortgage Note.
OCC: The Office of the Comptroller of the Currency.
Officer's Certificate: A certificate signed by the Chairman of the Board
or the Vice Chairman of the Board or the President or a Vice President or an
Assistant Vice President and certified by the Treasurer or the Secretary or one
of the Assistant Treasurers or Assistant Secretaries of the Company, and
delivered to the Purchaser as required by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be an employee
of the Company, reasonably acceptable to the Purchaser.
Periodic Interest Rate Cap: As to each Adjustable Rate Mortgage Loan,
the maximum increase or decrease in the Mortgage Interest Rate on any Adjustment
Date pursuant to the terms of the Mortgage Note.
Person: Any individual, corporation, partnership, joint venture, limited
liability company, association, joint-stock company, trust, unincorporated
organization, government or any agency or political subdivision thereof.
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.
8
Pledge Instruments: With respect to a Cooperative Loan, the Stock Power,
the Assignment of the Proprietary Lease and the Assignment of the Mortgage Note
and Pledge Agreement.
Pledged Asset Mortgage Loan: A Mortgage Loan for which the Mortgagor has
pledged financial assets as partial collateral for the Mortgage Loan, in lieu of
a cash down payment.
PMI Policy: A policy of primary mortgage guaranty insurance issued by a
Qualified Insurer, as required by this Agreement with respect to certain
Mortgage Loans. The premiums on a PMI Policy may be paid by the Mortgagor or by
the Company from its own funds, without reimbursement. If the premiums are paid
by the Company, the PMI Policy is an LPMI Policy.
Prepayment Interest Shortfall: As to any Remittance Date and each
Mortgage Loan subject to a Principal Prepayment received during the calendar
month preceding such Remittance Date, the amount, if any, by which one month's
interest at the related Mortgage Loan Remittance Rate on such Principal
Prepayment exceeds the amount of interest paid in connection with such Principal
Prepayment.
Prepayment Penalty: The prepayment charge or penalty interest required
to be paid by a Mortgagor as the result of a Principal Prepayment in full of the
related Mortgage Loan, not otherwise due thereon in respect of principal or
interest, which is intended to be a disincentive to prepayment, as provided in
the related Mortgage Note or Mortgage.
Prime Rate: The prime rate announced to be in effect from time to time,
as published as the average rate in The Wall Street Journal.
Principal Prepayment: Any payment or other recovery of principal on a
Mortgage Loan which is received in advance of its scheduled Due Date.
Principal Prepayment Period: The calendar month preceding the month in
which the related Remittance Date occurs.
Project: With respect to a Cooperative Loan, all real property owned by
the related Cooperative including the land, separate dwelling units and all
common areas.
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 each Loan Package shall be the
percentage of par as stated in the related Commitment Letter, multiplied by the
aggregate scheduled principal balance, as of the related Cut-off Date, of the
Mortgage Loans in the related Loan Package, after application of scheduled
payments of principal for such related Loan Package due on or before the related
Cut-off Date whether or not collected. The purchase price for a Loan Package may
be adjusted as stated in the related Commitment Letter.
Purchaser: Bank of America, National Association, or its successor in
interest or any successor or assignee to the Purchaser under this Agreement as
herein provided.
9
Qualification Defect: With respect to a Mortgage Loan, (a) a defective
document in the Custodial Mortgage File or Retained Mortgage File, (b) the
absence of a document in the Custodial Mortgage File or Retained 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 Appraiser: An appraiser, duly appointed by the Company, who
had no interest, direct or indirect, in the Mortgaged Property or in any loan
made on the security thereof, and whose compensation was not affected by the
approval or disapproval of the Mortgage Loan, and such appraiser and the
appraisal made by such appraiser both satisfied the requirements of Title XI of
the Financial Institution Reform, Recovery, and Enforcement Act and the
regulations promulgated thereunder, all as in effect on the date the Mortgage
Loan was originated.
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.
Qualified Depository: A deposit account or accounts maintained with a
federal or state chartered depository institution the deposits in which are
insured by the FDIC to the applicable limits and the short-term unsecured debt
obligations of which (or, in the case of a depository institution that is a
subsidiary of a holding company, the short-term unsecured debt obligations of
such holding company) are rated "A-1" by S&P or "Prime-1" by Xxxxx'x (or a
comparable rating if another rating agency is specified by the Purchaser by
written notice to the Company) at the time any deposits are held on deposit
therein.
Qualified Insurer: A mortgage guaranty insurance company duly authorized
and licensed where required by law to transact mortgage guaranty insurance
business and approved as an insurer by Xxxxxx Mae or Xxxxxxx Mac.
Qualified Substitute Mortgage Loan: A mortgage loan eligible to be
substituted by the Company for a Deleted Mortgage Loan which must, on the date
of such substitution be approved
10
by the Purchaser and, (i) have an outstanding principal balance, after deduction
of all scheduled payments due in the month of substitution (or in the case of a
substitution of more than one mortgage loan for a Deleted Mortgage Loan, an
aggregate principal balance), not in excess of the Stated Principal Balance of
the Deleted Mortgage Loan; (ii) have a Mortgage Loan Remittance Rate not less
than, and not more than two percent (2%) greater than, the Mortgage Loan
Remittance Rate of the Deleted Mortgage Loan; (iii) have a remaining term to
maturity not greater than and not more than one year less than that of the
Deleted Mortgage Loan; (iv) comply with each representation and warranty set
forth in Sections 3.01 and 3.02; (v) be of the same type as the Deleted Mortgage
Loan; (vi) have a Gross Margin not less than that of the Deleted Mortgage Loan;
(vii) have the same Index as the Deleted Mortgage Loan; (viii) have a FICO score
not less than that of the Deleted Mortgage Loan, (ix) have an LTV not greater
than that of the Deleted Mortgage Loan; (x) have a Company credit grade not
lower in quality than that of the Deleted Mortgage Loan and (xi) have the same
lien status as the Deleted Mortgage Loan.
Rating Agency: Each of Fitch, Inc., Xxxxx'x and S&P, or any successor
thereto.
Recognition Agreement: An agreement whereby a Cooperative and a lender
with respect to a Cooperative Loan (i) acknowledge that such lender may make, or
intends to make, such Cooperative Loan, and (ii) make certain agreements with
respect to such Cooperative Loan.
Reconstitution: Any Securitization Transaction 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 a Securitization Transaction, Agency Transfer or Whole
Loan Transfer pursuant to Section 9.01 hereof. The Reconstitution Date shall be
such date which the Purchaser shall designate. On such date, except as provided
in this Agreement, the Mortgage Loans transferred may cease to be covered by
this Agreement and the Company's servicing responsibilities shall cease under
this Agreement with respect to the related transferred Mortgage Loans.
Regulation AB: Subpart 229.1100 - Asset Backed Securities (Regulation
AB), 17 C.F.R. SS.SS.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
11
related provisions, regulations, rulings or pronouncements promulgated
thereunder, as the foregoing may be in effect from time to time.
Remittance Date: The 18th day (or if such 18th day is not a Business
Day, the first Business Day immediately following, except with respect to those
Mortgage Loans subject to a Securitization Transaction in which case such date
shall be the Business Day immediately preceding the 18th day) of any month.
REO Disposition: The final sale by the Company of any REO Property.
REO Disposition Proceeds: All amounts received with respect to an REO
Disposition pursuant to Section 4.16.
REO Property: A Mortgaged Property acquired by the Company on behalf of
the Purchaser through foreclosure or by deed in lieu of foreclosure, as
described in Section 4.16.
Repurchase Price: With respect to any Mortgage Loan, as defined in the
related Commitment Letter.
Retained Mortgage File: With respect to each Mortgage Loan, the file
consisting of the Mortgage Loan Documents listed as items 6 through 10 of
Exhibit D attached hereto.
RESPA: The Real Estate Settlement Procedures Act, as amended.
S&P: Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc.
Securities Act: The Securities Act of 1933, as amended.
Securitization Transaction: Any transaction involving (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, (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 or (c) a synthetic securitization in which some or all of the Mortgage
Loans are included as part of the reference portfolio relating to such
securitization.
Servicer: As defined in Section 9.01(e)(iii).
Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses (including reasonable attorneys' fees and
disbursements) other than Monthly Advances incurred in the performance by the
Company of its servicing obligations, including, but not limited to, the cost of
(a) the preservation, restoration and protection of the Mortgaged Property, (b)
any enforcement or judicial proceedings, including foreclosures, (c) the
management and liquidation of any REO Property and (d) compliance with the
obligations under Section 4.08 and Section 4.10.
12
Servicing Criteria: The "servicing criteria" set forth in Item 1122(d)
of Regulation AB, as such may be amended from time to time.
Servicing Fee: With respect to each Mortgage Loan, the amount of the
annual fee the Purchaser shall pay to the Company, which shall, for a period of
one full month, be equal to one-twelfth of the product of (a) the Servicing Fee
Rate and (b) the outstanding principal balance of such Mortgage Loan. Such fee
shall be payable monthly, computed on the basis of the same principal amount and
period respecting which any related interest payment on a Mortgage Loan is
received. The obligation of the Purchaser to pay the Servicing Fee is limited
to, and the Servicing Fee is payable solely from, the interest portion
(including recoveries with respect to interest from Liquidation Proceeds, to the
extent permitted by Section 4.05) of such Monthly Payment collected by the
Company, or as otherwise provided under Section 4.05.
Servicing Fee Rate: The per annum percentage for each Mortgage Loan, as
stated in the related Commitment Letter.
Servicing File: With respect to each Mortgage Loan, the file consisting
of the Mortgage Loan Documents listed as items 11 through 26 of Exhibit D
attached hereto plus copies of all Mortgage Loan Documents contained in the
Custodial Mortgage File and the Retained Mortgage File, which are retained by
the Company.
Servicing Officer: Any officer of the Company involved in or responsible
for the administration and servicing of the Mortgage Loans whose name appears on
a list of servicing officers furnished by the Company to the Purchaser upon
request, as such list may from time to time be amended.
Stated Principal Balance: As to each Mortgage Loan and any date of
determination, (i) the principal balance of the Mortgage Loan at the Cut-off
Date after giving effect to payments of principal due on or before such date,
whether or not received, minus (ii) all amounts previously distributed to the
Purchaser with respect to the related Mortgage Loan representing payments or
recoveries of principal or advances in lieu thereof.
Static Pool Information: Static pool information as described in Item
1105(a)(1)-(3) and 1105(c) of Regulation AB.
Stock Certificate: With respect to a Cooperative Loan, a certificate
evidencing ownership of the Cooperative Shares issued by the Cooperative.
Stock Power: With respect to a Cooperative Loan, an assignment of the
Stock Certificate or an assignment of the Cooperative Shares issued by the
Cooperative.
Subcontractor: Any vendor, subcontractor or other Person that is not
responsible for the overall servicing (as "servicing" is commonly understood by
participants in the mortgage-backed securities market) of Mortgage Loans but
performs one or more discrete functions identified in Item 1122(d) of Regulation
AB with respect to Mortgage Loans under the direction or authority of the
Company or a Subservicer.
13
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.
Subservicing Agreement: Any subservicing agreement between the Company
and any Subservicer relating to servicing and/or administration of some or all
of the Mortgage Loans included in a Mortgage Loan Package.
Subsidy Account: An account maintained by the Company specifically to
hold all Subsidy Funds to be applied to individual Subsidy Loans.
Subsidy Funds: With respect to any Subsidy Loans, funds contributed by
the employer of a Mortgagor in order to reduce the payments required from the
Mortgagor for a specified period in specified amounts.
Subsidy Loan: Any Mortgage Loan subject to a temporary interest subsidy
agreement pursuant to which the monthly interest payments made by the related
Mortgagor will be less than the scheduled monthly interest payments on such
Mortgage Loan, with the resulting difference in interest payments being provided
by the employer of the Mortgagor. Each Subsidy Loan will be identified as such
in the related Data File.
Third-Party Originator: Each Person, other than a Qualified
Correspondent, that originated Mortgage Loans acquired by the Company.
Time$aver(R) 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,
applicable to each Loan Package, as provided to the Purchaser by the Company.
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 an Agency Transfer.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; POSSESSION OF CUSTODIAL
MORTGAGE FILES; BOOKS AND RECORDS; CUSTODY AGREEMENT;
DELIVERY OF DOCUMENTS
Section 2.01. Conveyance of Mortgage Loans; Possession of Custodial Mortgage
Files; Maintenance of Retained Mortgage File and Servicing
Files.
Pursuant to each Assignment and Conveyance Agreement, on the related
Closing Date, the Company, simultaneously with the payment of the Purchase Price
by the Purchaser, shall
14
thereby sell, transfer, assign, set over and convey to the Purchaser, without
recourse, but subject to the terms of this Agreement and the related Assignment
and Conveyance Agreement, all the right, title and interest of the Company in
and to the Mortgage Loans listed on the respective Mortgage Loan Schedule
annexed to such Assignment and Conveyance Agreement, together with the Retained
Mortgage Files and Custodial Mortgage File and all rights and obligations
arising under the documents contained therein. The Company shall deliver the
related Mortgage Loan Schedule and the related Data File to the Purchaser at
least two (2) Business Days before the Closing Date. Pursuant to Section 2.03,
the Company shall deliver the Custodial Mortgage File for each Mortgage Loan
comprising the related Loan Package to the Custodian.
The contents of each Retained Mortgage File not delivered to the
Custodian are and shall be held in trust by the Company for the benefit of the
Purchaser as the owner thereof. Additionally and separate to the Retained
Mortgage File, the Company shall maintain a Servicing File, for the sole purpose
of servicing the related Mortgage Loans, consisting of a copy of the contents of
the Custodial Mortgage File and the Retained Mortgage File. The possession of
each Servicing File and Retained Mortgage File held by the Company is at the
will of the Purchaser and such retention and possession by the Company is in a
custodial capacity only. Upon the sale of the Mortgage Loans the ownership of
each Mortgage Note, the related Mortgage and the related Custodial Mortgage
File, Retained Mortgage File and Servicing File shall vest immediately in the
Purchaser, and the ownership of all records and documents with respect to the
related Mortgage Loan prepared by or which come into the possession of the
Company shall vest immediately in the Purchaser and shall be retained and
maintained by the Company, in trust, at the will of the Purchaser and only in
such custodial capacity. The Company shall release its custody of the contents
of any Retained Mortgage File and Servicing File only in accordance with written
instructions from the Purchaser, 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
Section 3.03 or 6.02. All such costs associated with the release, transfer and
re-delivery to the Company shall be the responsibility of the Purchaser (unless
in connection with Section 3.03 or 6.02).
Section 2.02. Books and Records; Transfers of Mortgage Loans.
From and after the sale to the Purchaser of the Mortgage Loans in the
related Loan Package on each Closing Date, all rights arising out of such
Mortgage Loans, including, but not limited to, all funds received on or in
connection with such Mortgage Loans, shall be received and held by the Company
in trust for the benefit of the Purchaser as owner of such 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
such 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
15
Xxxxxx Xxx or Xxxxxxx Mac, including but not limited to documentation as to the
method used in determining the applicability of the provisions of the Flood
Disaster Protection Act of 1973, as amended, to the Mortgaged Property,
documentation evidencing insurance coverage and eligibility of any condominium
project for approval by Xxxxxx Mae or Xxxxxxx Mac and records of periodic
inspections required by Section 4.13. To the extent that original documents are
not required for purposes of realization of Liquidation Proceeds or Insurance
Proceeds, documents maintained by the Company may be in the form of microfilm or
microfiche or such other reliable means of recreating original documents,
including but not limited to, optical imagery techniques so long as the Company
complies with the requirements of the Xxxxxx Mae Selling and Servicing Guide, as
amended from time to time.
The Company shall maintain with respect to each Mortgage Loan and shall
make available for inspection by the Purchaser or its designee the related
Retained Mortgage File and Servicing File during the time the Purchaser retains
ownership of such Mortgage Loan and thereafter in accordance with applicable
laws and regulations.
The Company shall keep at its servicing office books and records in
which, subject to such reasonable regulations as it may prescribe, the Company
shall note transfers of Mortgage Loans. No 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 xxxx its
books and records to reflect the ownership of the Mortgage Loans of such
assignee, and shall release the previous Purchaser from its obligations
hereunder with respect to the Mortgage Loans sold or transferred. Such
notification of a transfer, including a final schedule of Mortgage Loans subject
to transfer, shall be received by the Company no fewer than five (5) Business
Days before the last Business Day of the month. If such notification is not
received as specified above, the Company's duties to remit and report as
required by Section 5 shall begin with the next Due Period.
Upon request from the Purchaser, at the Purchaser's expense, the Company
shall deliver no later than thirty (30) days after such request any Retained
Mortgage File or document therein, or copies thereof, to the Purchaser at the
direction of the Purchaser. The Purchaser shall return any Retained Mortgage
File or document therein delivered pursuant to this Section no later than ten
(10) days after receipt thereof. In the event that the Company fails to make
delivery of the requested Retained Mortgage File or document therein, or copies
thereof, as required under this Section 2.02, the Company shall repurchase,
pursuant to Section 3.03 of this Agreement, the related Mortgage Loan within
thirty (30) days of a request to do so by the Purchaser.
Section 2.03. Custody Agreement; Delivery of Documents.
On each Closing Date with respect to each Mortgage Loan comprising the
related Loan Package, the Company shall have delivered to the Custodian not
fewer than five (5) Business Days prior to such Closing Date those Mortgage Loan
Documents as required by Exhibit D to this Agreement with respect to each
Mortgage Loan. In addition, in connection with the
16
assignment of any MERS Designated Mortgage Loan, the Company agrees that on or
prior to the second Business Day following the Closing Date it will cause, at
its own expense, the MERS System to indicate that the related Mortgage Loans
have been assigned by the Company to the Purchaser in accordance with this
Agreement by entering in the MERS System the information required by the MERS
System to identify the Purchaser as owner of such Mortgage Loans. 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 or unless otherwise directed by the Purchaser.
The Custodian shall certify its receipt of all such Mortgage Loan
Documents in each Custodial Mortgage File required to be delivered pursuant to
this Agreement, as evidenced by the Initial Certification of the Custodian in
the forms annexed to the Custody Agreement. The Company shall be responsible for
recording the initial Assignments of Mortgage. The Purchaser will be responsible
for the fees and expenses of the Custodian.
All recording fees and other costs associated with the recording of
initial Assignments of Mortgage and other relevant documents to the Purchaser or
its designee will be borne by the Company. For Mortgage Loans not registered
under the MERS System, if the Purchaser requests that the related Assignments of
Mortgage be recorded, the Company shall cause such Assignments of Mortgage which
were delivered in blank to be completed and to be recorded. The Company shall be
required to deliver such Assignments of Mortgage for recording within 30 days of
the date on which the Company is notified that recording will be required
pursuant to this Section 2.03. The Company shall furnish the Custodian with a
copy of each Assignment of Mortgage submitted for recording. In the event that
any such Assignment is lost or returned unrecorded because of a defect therein,
the Company shall promptly have a substitute Assignment of Mortgage prepared or
have such defect cured, as the case may be, and thereafter cause such Assignment
of Mortgage to be duly recorded.
The Company shall forward to the Custodian original documents evidencing
an assumption, modification, consolidation or extension of any Mortgage Loan
entered into in accordance with Section 4.01 or 6.01 within one 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 such document
submitted for recordation or a copy of such document certified by the
appropriate public recording office to be a true and complete copy of the
original within sixty (60) days of its submission for recordation.
If the original or a copy of any document submitted for recordation to
the appropriate public recording office is not so delivered to the Custodian
with 240 days following the related Closing Date, and if the Company does not
cure such failure within thirty (30) days after receipt of written notification
of such failure from the Purchaser, the related Mortgage Loan shall, upon the
request of the Purchaser, be repurchased by the Company at a price and in the
manner specified in Section 3.03; provided, however, that with respect to any
Mortgage Loan, if such defect constitutes a Qualification Defect, any such
repurchase must take place within sixty (60) days of the date such defect is
discovered.
17
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 Custody Agreement or which the
Company is required to maintain in the Retained Mortgage File, the Company shall
deliver to the Custodian within 270 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.
However, if the Company cannot deliver such original or clerk-certified copy of
any document submitted for recordation to the appropriate public recording
office within the specified time for any reason, within thirty (30) days after
receipt of written notification of such failure from the Purchaser, the Company
shall repurchase the related Mortgage Loan at the price and in the manner
specified in Section 3.03.
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.
ARTICLE III
REPRESENTATIONS AND WARRANTIES REMEDIES AND BREACH
Section 3.01. Company Representations and Warranties.
The Company hereby represents and warrants to the Purchaser that, as of
the related Closing Date:
(a) Due Organization and Authority.
The Company is a national banking association duly organized,
validly existing and in good standing under the laws of the
United States and has all licenses necessary to carry on its
business as now being conducted and is licensed, qualified and
in good standing in each state where a Mortgaged Property is
located if the laws of such state require licensing or
qualification in order to conduct business of the type conducted
by the Company, and in any event the Company is in compliance
with the laws of any such state to the extent necessary to
ensure the enforceability of the related Mortgage Loan and the
servicing of such Mortgage Loan in accordance with the terms of
this Agreement; the Company has the full power and authority to
execute and deliver this Agreement and to perform
18
in accordance herewith; the execution, delivery and performance
of this Agreement (including all instruments of transfer to be
delivered pursuant to this Agreement) by the Company and the
consummation of the transactions contemplated hereby have been
duly and validly authorized; this Agreement evidences the valid,
binding and enforceable obligation of the Company; and all
requisite action has been taken by the Company to make this
Agreement valid and binding upon the Company in accordance with
its terms;
(b) Ordinary Course of Business.
The consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Company,
who is in the business of selling and servicing loans, and the
transfer, assignment and conveyance of the Mortgage Notes and
the Mortgages by the Company pursuant to this Agreement are not
subject to the bulk transfer or any similar statutory provisions
in effect in any applicable jurisdiction;
(c) No Conflicts.
Neither the execution and delivery of this Agreement, the
acquisition of the Mortgage Loans by the Company, the sale of
the Mortgage Loans to the Purchaser or the transactions
contemplated hereby, nor the fulfillment of or compliance with
the terms and conditions of this Agreement will conflict with or
result in a breach of any of the terms, charter documents 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;
(d) Ability to Service.
The Company is an approved seller/servicer of conventional
residential mortgage loans for Xxxxxx Xxx or Xxxxxxx Mac, with
the facilities, procedures, and experienced personnel necessary
for the sound servicing of mortgage loans of the same type as
the Mortgage Loans. The Company is a HUD approved mortgagee
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 Mae or Xxxxxxx Mac, and no event has occurred,
including but not limited to a change in insurance coverage,
which would make the Company unable to comply with Xxxxxx Mae or
Xxxxxxx Mac eligibility requirements or which would require
notification to either Xxxxxx Mae or Xxxxxxx Mac;
19
(e) Reasonable Servicing Fee; Fair Consideration.
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. The consideration received by the Company
upon the sale of the Mortgage Loans under this Agreement
constitutes fair consideration and reasonably equivalent value
for the Mortgage Loans;
(f) Ability to Perform; Solvency.
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;
(g) No Litigation Pending.
There is no action, suit, proceeding or investigation pending or
threatened against the Company which, either in any one instance
or in the aggregate, may result in any material adverse change
in the business, operations, financial condition, properties or
assets of the Company, or in any material impairment of the
right or ability of the Company to carry on its business
substantially as now conducted, or in any material liability on
the part of the Company, or which would draw into question the
validity of this Agreement or the Mortgage Loans or of any
action taken or to be contemplated herein, or which would be
likely to impair materially the ability of the Company to
perform under the terms of this Agreement;
(h) No Consent Required.
No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution,
delivery and performance by the Company of or compliance by the
Company with this Agreement or the sale of the Mortgage Loans as
evidenced by the consummation of the transactions contemplated
by this Agreement, or if required, such consent approval,
authorization or order has been obtained prior to the related
Closing Date;
(i) Selection Process.
The Mortgage Loans were selected from among the outstanding
adjustable rate or fixed rate one- to four-family mortgage loans
in the Company's mortgage banking portfolio at the related
Closing Date as to which the
20
representations and warranties set forth in Section 3.02 could
be made and such selection was not made in a manner so as to
affect adversely the interests of the Purchaser;
(j) No Untrue Information.
Neither this Agreement nor any statement, report or other
document furnished or to be furnished pursuant to this Agreement
or in connection with the transactions contemplated hereby
contains any untrue statement of fact or omits to state a fact
necessary to make the statements contained therein not
misleading;
(k) Sale Treatment.
The Company has determined that the disposition of the Mortgage
Loans pursuant to this Agreement will be afforded sale treatment
for accounting and tax purposes;
(l) No Material Change.
There has been no material adverse change in the business,
operations, financial condition or assets of the Company since
the date of the Company's most recent financial statements;
(m) No Brokers' Fees.
The Company has not dealt with any broker, investment banker,
agent or other Person that may be entitled to any commission or
compensation in the connection with the sale of the Mortgage
Loans; and
(n) MERS.
The Company is a member of MERS in good standing.
Section 3.02. Representations and Warranties Regarding Individual Mortgage
Loans.
As to each Mortgage Loan, the Company hereby represents and warrants to
the Purchaser that as of the related Closing Date:
(a) Mortgage Loans as Described.
The information set forth in the respective Mortgage Loan
Schedule and the information contained on the respective Data
File delivered to the Purchaser is true and correct;
21
(b) Payments Current.
All payments required to be made up to the Cut-off Date for the
Mortgage Loan under the terms of the Mortgage Note have been
made and credited. No payment under any Mortgage Loan has been
30 days delinquent more than one time within twelve months prior
to the related Closing Date;
(c) No Outstanding Charges.
There are no defaults in complying with the terms of the
Mortgages, and all taxes, governmental assessments, insurance
premiums, leasehold payments, water, sewer and municipal
charges, which previously became due and owing have been paid,
or an escrow of funds has been established in an amount
sufficient to pay for every such item which remains unpaid and
which has been assessed but is not yet due and payable. The
Company has not advanced funds, or induced, or solicited
directly or indirectly, the payment of any amount required under
the Mortgage Loan, except for interest accruing from the date of
the Mortgage Note or date of disbursement of the Mortgage Loan
proceeds, whichever is later, to the day which precedes by one
month the Due Date of the first installment of principal and
interest;
(d) Original Terms Unmodified.
The terms of the Mortgage Note and Mortgage have not been
impaired, waived, altered or modified in any respect, except by
a written instrument which has been recorded, if necessary, to
protect the interests of the Purchaser and maintain the lien
priority of the Mortgage, and is retained by the Company in the
Retained Mortgage File; the related Mortgage Note has been
delivered to the Custodian. The substance of any such waiver,
alteration or modification has been approved by the issuer of
any related PMI Policy or LPMI Policy and the title insurer, to
the extent required by the policy, and its terms are reflected
on the respective Mortgage Loan Schedule. No instrument of
waiver, alteration or modification has been executed, and no
Mortgagor has been released, in whole or in part, except in
connection with an assumption agreement approved by the issuer
of any related PMI Policy or LPMI Policy and the title insurer,
to the extent required by the policy, and which assumption
agreement is part of the Custodial Mortgage File delivered to
the Custodian and the terms of which are reflected in the
respective Mortgage Loan Schedule;
(e) No Defenses.
The Mortgage Loan is not subject to any right of rescission,
set-off, counterclaim or defense, including without limitation
the defense of usury, nor will the operation of any of the terms
of the Mortgage Note or the Mortgage, or the exercise of any
right thereunder, render either the
22
Mortgage Note or the Mortgage unenforceable, in whole or in
part, or subject to any right of rescission, set-off,
counterclaim or defense, including without limitation the
defense of usury, and no such right of rescission, set-off,
counterclaim or defense has been asserted with respect thereto;
(f) No Satisfaction of Mortgage.
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;
(g) Validity of Mortgage Documents.
The Mortgage Note and the Mortgage and related documents are
genuine, and each is the legal, valid and binding obligation of
the maker thereof enforceable in accordance with its terms. All
parties to the Mortgage Note and the Mortgage had legal capacity
to enter into the Mortgage Loan and to execute and deliver the
Mortgage Note and the Mortgage, and the Mortgage Note and the
Mortgage have been duly and properly executed by such parties.
The Company has reviewed all of the documents constituting the
Retained Mortgage File and Custodial Mortgage File and has made
such inquiries as it deems necessary to make and confirm the
accuracy of the representations set forth herein;
With respect to each Cooperative Loan, the Mortgage Note, the
Mortgage, the Pledge Agreement, and related documents are
genuine, and each is the legal, valid and binding obligation of
the maker thereof enforceable in accordance with its terms. All
parties to the Mortgage Note, the Mortgage, the Pledge
Agreement, the Proprietary Lease, the Stock Power, Recognition
Agreement and the Assignment of Proprietary Lease had legal
capacity to enter into the Mortgage Loan and to execute and
deliver such documents, and such documents have been duly and
properly executed by such parties;
(h) No Fraud.
No error, omission, misrepresentation, negligence, fraud or
similar occurrence with respect to a Mortgage Loan has taken
place on the part of the Company, or the Mortgagor, 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;
23
(i) Compliance with Applicable Laws.
Any and all requirements of any federal, state or local law
including, without limitation, usury, truth-in-lending, real
estate settlement procedures, consumer credit protection and
privacy, equal credit opportunity, disclosure or predatory and
abusive lending laws applicable to the origination and servicing
of the Mortgage Loan have been complied with, the Mortgagor
received all disclosure materials required by applicable law
with respect to the making of mortgage loans of the same type as
the Mortgage Loan and, if the Mortgage Loan is a refinanced
Mortgage Loan, rescission materials required by applicable laws,
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;
(j) Location and Type of Mortgaged Property.
The Mortgaged Property is located in the state identified in the
respective Mortgage Loan Schedule and consists of a contiguous
parcel of real property with a detached single family residence
erected thereon, or a two- to four-family dwelling, or a
Cooperative Apartment, or a manufactured dwelling, or an
individual condominium unit in a condominium project, or an
individual unit in a planned unit development or a townhouse,
provided, however, that any condominium project or planned unit
development shall conform to the applicable Xxxxxx Mae or
Xxxxxxx Mac requirements, or the Underwriting Guidelines,
regarding such dwellings, and no residence or dwelling is a
mobile home. As of the respective date of the Appraisal for each
Mortgaged Property, any Mortgaged Property being used for
commercial purposes conforms to the Underwriting Guidelines and,
to the best of the Company's knowledge, since the date of such
Appraisal, no portion of the Mortgaged Property has been used
for commercial purposes outside of the Underwriting Guidelines;
(k) Valid First Lien.
The Mortgage is a valid, subsisting and enforceable first lien
on the Mortgaged Property, including all buildings on the
Mortgaged Property and all installations and mechanical,
electrical, plumbing, heating and air conditioning systems
located in or annexed to such buildings, and all additions,
alterations and replacements made at any time with respect to
the foregoing. The lien of the Mortgage is subject only to:
24
(1) the lien of current real property taxes and
assessments not yet due and payable;
(2) covenants, conditions and restrictions, rights
of way, easements and other matters of the public record as of
the date of recording acceptable to mortgage lending
institutions generally and specifically referred to in the
lender's title insurance policy delivered to the originator of
the Mortgage Loan and (i) referred to or otherwise considered in
the Appraisal made for the originator of the Mortgage Loan and
(ii) which do not adversely affect the Appraised Value of the
Mortgaged Property set forth in such Appraisal; and
(3) other matters to which like properties are
commonly subject which do not materially interfere with the
benefits of the security intended to be provided by the mortgage
or the use, enjoyment, value or marketability of the related
Mortgaged Property.
Any security agreement, chattel mortgage or equivalent document
related to and delivered in connection with the Mortgage Loan
establishes and creates a valid, subsisting and enforceable
first lien and first priority security interest on the property
described therein and the Company has full right to sell and
assign the same to the Purchaser;
With respect to each Cooperative Loan, each Pledge Agreement
creates a valid, enforceable and subsisting first security
interest in the Cooperative Shares and Proprietary Lease,
subject only to (i) the lien of the related Cooperative for
unpaid assessments representing the Mortgagor's pro rata share
of the Cooperative's payments for its blanket mortgage, current
and future real property taxes, insurance premiums, maintenance
fees and other assessments to which like collateral is commonly
subject and (ii) other matters to which like collateral is
commonly subject which do not materially interfere with the
benefits of the security intended to be provided by the Pledge
Agreement; provided, however, that the appurtenant Proprietary
Lease may be subordinated or otherwise subject to the lien of
any mortgage on the Project;
(l) Full Disbursement of Proceeds.
The proceeds of the Mortgage Loan have been fully disbursed,
except for escrows established or created due to seasonal
weather conditions, and there is no requirement for future
advances thereunder. All costs, fees and expenses incurred in
making or closing the Mortgage Loan and the recording of the
Mortgage were paid, and the Mortgagor is not entitled to any
refund of any amounts paid or due under the Mortgage Note or
Mortgage;
25
(m) Consolidation of Future Advances.
Any future advances made prior to the Cut-off Date, have been
consolidated with the outstanding principal amount secured by
the Mortgage, and the secured principal amount, as consolidated,
bears a single interest rate and single repayment term reflected
on the related Mortgage Loan Schedule. The lien of the Mortgage
securing the consolidated principal amount is expressly insured
as having first lien priority by a title insurance policy, an
endorsement to the policy insuring the mortgagee's consolidated
interest or by other title evidence acceptable to Xxxxxx Mae or
Xxxxxxx Mac; the consolidated principal amount does not exceed
the original principal amount of the Mortgage Loan; the Company
shall not make future advances after the Cut-off Date;
(n) Ownership.
The Company is the sole owner of record and holder of the
Mortgage Loan and the related Mortgage Note and the Mortgage are
not assigned or pledged, and the Company has good and marketable
title thereto and has full right and authority to transfer and
sell the Mortgage Loan to the Purchaser. The Company is
transferring the Mortgage Loan free and clear of any and all
encumbrances, liens, pledges, equities, participation interests,
claims, agreements with other parties to sell or otherwise
transfer the Mortgage Loan, charges or security interests of any
nature encumbering such Mortgage Loan;
(o) Origination/Doing Business.
The Mortgage Loan was originated by a savings and loan
association, a savings bank, a commercial bank, a credit union,
an insurance company, or similar institution that is supervised
and examined by a federal or state authority or by a mortgagee
approved by the Secretary of Housing and Urban Development
pursuant to Sections 203 and 211 of the National Housing Act.
All parties which have had any interest in the Mortgage Loan,
whether as mortgagee, assignee, pledgee or otherwise, are (or,
during the period in which they held and disposed of such
interest, were) (1) in compliance with any and all applicable
licensing requirements of the laws of the state wherein the
Mortgaged Property is located, and (2) either (A) organized
under the laws of such state, (B) qualified to do business in
such state, (C) federal savings and loan associations or
national banks having principal offices in such state, or (D)
not doing business in such state;
(p) LTV, PMI Policy; LPMI Policy.
Each Mortgage Loan has an LTV as specified on the Mortgage Loan
Schedule. Except as indicated on the Mortgage Loan Schedule,
each
26
Mortgage Loan with an LTV greater than 80%, at the time of
origination, a portion of the unpaid principal balance of each
Mortgage Loan is and will be insured as to payment defaults by a
PMI Policy or LPMI Policy. If the Mortgage Loan is insured by a
PMI Policy for which the Mortgagor pays all premiums, the
coverage will remain in place until (i) the LTV decreases to 78%
or (ii) the PMI Policy is otherwise terminated pursuant to the
Homeowners Protection Act of 1998, 12 USC SS.4901, et seq. All
provisions of such PMI Policy or LPMI Policy have been and are
being complied with, such policy is in full force and effect,
and all premiums due thereunder have been paid. The Qualified
Insurer has a claims paying ability acceptable to Xxxxxx Mae or
Xxxxxxx Mac. Any Mortgage Loan subject to a PMI Policy or an
LPMI Policy obligates the Mortgagor or the Company to maintain
the PMI Policy or LPMI Policy, as applicable, and to pay all
premiums and charges in connection therewith. The Mortgage
Interest Rate for the Mortgage Loan as set forth on the related
Mortgage Loan Schedule is net of any such insurance premium;
(q) Title Insurance.
The Mortgage Loan is covered by an ALTA lender's title insurance
policy (or in the case of any Mortgage Loan secured by a
Mortgaged Property located in a jurisdiction where such policies
are generally not available, an opinion of counsel of the type
customarily rendered in such jurisdiction in lieu of title
insurance) or other generally acceptable form of policy of
insurance acceptable to Xxxxxx Xxx or Xxxxxxx Mac, issued by a
title insurer acceptable to Xxxxxx Mae or Xxxxxxx Mac and
qualified to do business in the jurisdiction where the Mortgaged
Property is located, insuring the Company, its successors and
assigns, as to the first priority lien of the Mortgage in the
original principal amount of the Mortgage Loan, subject only to
the exceptions contained in clauses (1), (2) and (3) of
Paragraph (k) of this Section 3.02, and with respect to
Adjustable Rate Mortgage Loans 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. Additionally, such
lender's title insurance policy includes no exceptions regarding
ingress, egress or encroachments that impact the value or the
marketability of the Mortgaged Property. 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;
27
(r) No Defaults.
There is no default, breach, violation or event of acceleration
existing under the Mortgage or the Mortgage Note and no event
which, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a
default, breach, violation or event of acceleration, and neither
the Company nor its predecessors have waived any default,
breach, violation or event of acceleration;
(s) No Mechanics' Liens.
There are no mechanics' or similar liens or claims which have
been filed for work, labor or material (and no rights are
outstanding that under the law could give rise to such liens)
affecting the related Mortgaged Property which are or may be
liens prior to, or equal or coordinate with, the lien of the
related Mortgage which are not insured against by the title
insurance policy referenced in Paragraph (q) above;
(t) Location of Improvements; No Encroachments.
Except as insured against by the title insurance policy
referenced in Paragraph (q) 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;
(u) Payment Terms.
Except with respect to the Interest Only Mortgage Loans,
principal payments commenced no more than 60 days after the
funds were disbursed to the Mortgagor in connection with the
Mortgage Loan. The Mortgage Loans have an original term to
maturity of not more than 30 years, with interest payable in
arrears each month. As to each Adjustable Rate Mortgage Loan on
each applicable Adjustment Date, the Mortgage Interest Rate will
be adjusted to equal the sum of the Index plus the applicable
Gross Margin, rounded up or down to the nearest multiple of
0.125% indicated by the Mortgage Note; provided that the
Mortgage Interest Rate will not increase or decrease by more
than the Periodic Interest Rate Cap on any Adjustment Date, and
will in no event exceed the maximum Mortgage Interest Rate or be
lower than the minimum Mortgage Interest Rate listed on the
related Mortgage Loan Schedule for such Mortgage Loan. As to
each Adjustable Rate Mortgage Loan that is not an Interest Only
Mortgage Loan, each Mortgage Note requires a monthly payment
which is sufficient, during the period prior to the first
28
adjustment to the Mortgage Interest Rate, to fully amortize the
outstanding principal balance as of the first day of such period
over the then remaining term of such Mortgage Note and to pay
interest at the related Mortgage Interest Rate. As to each
Adjustable Rate Mortgage Loan, if the related Mortgage Interest
Rate changes on an Adjustment Date or, with respect to an
Interest Only Mortgage Loan, on an Adjustment Date following the
related interest only period, the then outstanding principal
balance will be reamortized over the remaining life of such
Mortgage Loan. No Mortgage Loan contains terms or provisions
which would result in negative amortization;
(v) Customary Provisions.
The Mortgage and related Mortgage Note contain customary and
enforceable provisions such as to render the rights and remedies
of the holder thereof adequate for the realization against the
Mortgaged Property of the benefits of the security provided
thereby, including, (i) in the case of a Mortgage designated as
a deed of trust, by trustee's sale, and (ii) otherwise by
judicial foreclosure. There is no homestead or other exemption
available to a Mortgagor which would interfere with the right to
sell the Mortgaged Property at a trustee's sale or the right to
foreclose the Mortgage;
(w) Occupancy of the Mortgaged Property.
As of the date of origination, the Mortgaged Property was
lawfully occupied under applicable law and to the best of the
Company's knowledge, the Mortgaged Property is lawfully occupied
as of the related Closing Date;
(x) No Additional Collateral.
Except in the case of a Pledged Asset Mortgage Loan and as
indicated on the related Data File, the Mortgage Note is not and
has not been secured by any collateral, pledged account or other
security except the lien of the corresponding Mortgage and the
security interest of any applicable security agreement or
chattel mortgage referred to in Paragraph (k) above;
(y) Deeds of Trust.
In the event the Mortgage constitutes a deed of trust, a
trustee, duly qualified under applicable law to serve as such,
has been properly designated and currently so serves and is
named in the Mortgage, and no fees or expenses are or will
become payable by the Mortgagee to the trustee under the deed of
trust, except in connection with a trustee's sale after default
by the Mortgagor;
29
(z) Acceptable Investment.
The Company has no knowledge of any circumstances or conditions
with respect to the Mortgage Loan, the Mortgaged Property, the
Mortgagor or the Mortgagor's credit standing that can reasonably
be expected to cause private institutional investors to regard
the Mortgage Loan as an unacceptable investment, cause the
Mortgage Loan to become delinquent, or adversely affect the
value or marketability of the Mortgage Loan;
(aa) Transfer of Mortgage Loans.
With respect to each Mortgage that is not recorded in the name
of MERS or its designee, the Assignment of Mortgage upon the
insertion of the name of the assignee and recording information
is in recordable form and is acceptable for recording under the
laws of the jurisdiction in which the Mortgaged Property is
located;
(bb) Mortgaged Property Undamaged.
The Mortgaged Property is undamaged by waste, fire, earthquake
or earth movement, windstorm, flood, tornado or other casualty
so as to affect adversely the value of the Mortgaged Property as
security for the Mortgage Loan or the use for which the premises
were intended;
(cc) Servicing and Collection Practices; Escrow Deposits.
The origination, servicing and collection practices used with
respect to the Mortgage Loan have been in accordance with
Accepted Servicing Practices, and have been in all material
respects legal and proper. With respect to escrow deposits and
Escrow Payments, all such payments are in the possession of the
Company and there exist no deficiencies in connection therewith
for which customary arrangements for repayment thereof have not
been made. All Escrow Payments have been collected in full
compliance with state and federal law. No escrow deposits or
Escrow Payments or other charges or payments due the Company
have been capitalized under the Mortgage Note;
(dd) No Condemnation.
There is no proceeding pending or to the best of the Company's
knowledge threatened for the total or partial condemnation of
the related Mortgaged Property;
(ee) The Appraisal.
The Mortgage Loan Documents contain an Appraisal of the related
Mortgaged Property by a Qualified Appraiser acceptable to Xxxxxx
Mae or Xxxxxxx Mac. As to each Time$aver(R) Mortgage Loan, the
Appraisal may
30
be from the original of the existing Company-serviced loan,
which was refinanced via such Time$aver(R) Mortgage Loan;
(ff) Insurance.
The Mortgaged Property securing each Mortgage Loan is insured by
an insurer acceptable to Xxxxxx Mae or Xxxxxxx Mac against loss
by fire and such hazards as are covered under a standard
extended coverage endorsement and such other hazards as are
customary in the area where the Mortgaged Property is located
pursuant to insurance policies conforming to the requirements of
Section 4.10, in an amount which is not less than the lesser of
100% of the insurable value of the Mortgaged Property and the
outstanding principal balance of the Mortgage Loan, but in no
event less than the minimum amount necessary to fully compensate
for any damage or loss on a replacement cost basis. If the
Mortgaged Property is a condominium unit, it is included under
the coverage afforded by a blanket policy for the project. If
the Mortgaged Property is 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 and such policy conforms to Xxxxxx Mae or
Xxxxxxx Mac requirements, in an amount representing coverage not
less than the least of (A) the outstanding principal balance of
the Mortgage Loan, (B) the full insurable value and (C) the
maximum amount of insurance which was available under the Flood
Disaster Protection Act of 1973, as amended. All individual
insurance policies contain a standard mortgagee clause naming
the Company and its successors and assigns as mortgagee, and all
premiums thereon have been paid. The Mortgage obligates the
Mortgagor thereunder to maintain a hazard insurance policy at
the Mortgagor's cost and expense, and on the Mortgagor's failure
to do so, authorizes the holder of the Mortgage to obtain and
maintain such insurance at such Mortgagor's cost and expense,
and to seek reimbursement therefor from the Mortgagor. The
hazard insurance policy is the valid and binding obligation of
the insurer, is in full force and effect, and will be in full
force and effect and inure to the benefit of the Purchaser upon
the consummation of the transactions contemplated by this
Agreement. The Company has not acted or failed to act so as to
impair the coverage of any such insurance policy or the
validity, binding effect and enforceability thereof;
(gg) Servicemembers Civil Relief Act.
The Mortgagor has not notified the Company, and the Company has
no knowledge of any relief requested by or allowed to the
Mortgagor under the Servicemembers Civil Relief Act, as amended,
or similar state laws;
31
(hh) Balloon Payments, Graduated Payments or Contingent Interests.
The Mortgage Loan is not a graduated payment mortgage loan and
the Mortgage Loan does not have a shared appreciation or other
contingent interest feature. Except as indicated on the related
Mortgage Loan Schedule, no Mortgage Loan has a balloon payment
feature;
(ii) No Construction Loans.
No Mortgage Loan was made in connection with (i) the
construction or rehabilitation of a Mortgaged Property or (ii)
facilitating the trade-in or exchange of a Mortgaged Property
other than a construction-to-permanent loan which has converted
to a permanent Mortgage Loan;
(jj) Underwriting.
Each Mortgage Loan was underwritten in accordance with the
Underwriting Guidelines and the Mortgage Note and Mortgage are
on forms acceptable to Xxxxxxx Mac or Xxxxxx Mae;
(kk) No Bankruptcy.
No Mortgagor was a debtor in any state or federal bankruptcy or
insolvency proceeding at the time the Mortgage Loan was
originated and as of the related Closing Date, the Company has
not received notice that any Mortgagor is a debtor under any
state or federal bankruptcy or insolvency proceeding;
(ll) Delivery of Custodial Mortgage Files.
The Mortgage Note, Assignment of Mortgage and any other
documents required to be delivered by the Company hereunder have
been delivered to the Custodian. The Company is in possession of
a complete Retained Mortgage File in compliance with Exhibit D,
except for such documents where the originals of which have been
sent for recordation. With respect to each Mortgage Loan for
which a lost note affidavit has been delivered to the Custodian
in place of the original Mortgage Note, the related Mortgage
Note is no longer in existence, and, if such Mortgage Loan is
subsequently in default, the enforcement of such Mortgage Loan
or of the related Mortgage by or on behalf of the Purchaser will
not be affected by the absence of the original Mortgage Note;
(mm) Buydown Mortgage Loans.
With respect to each Mortgage Loan that is a Buydown Mortgage
Loan:
(i) On or before the date of origination of such Mortgage
Loan, the Company and the Mortgagor, or the Company,
32
the Mortgagor and the seller of the Mortgaged Property
or a third party entered into a Buydown Agreement. The
Buydown Agreement provides that the seller of the
Mortgaged Property (or third party) shall deliver to the
Company temporary Buydown Funds in an amount equal to
the aggregate undiscounted amount of payments that, when
added to the amount the Mortgagor on such Mortgage Loan
is obligated to pay on each Due Date in accordance with
the terms of the Buydown Agreement, is equal to the full
scheduled Monthly Payment due on such Mortgage Loan. The
temporary Buydown Funds enable the Mortgagor to qualify
for the Buydown Mortgage Loan. The effective interest
rate of a Buydown Mortgage Loan if less than the
interest rate set forth in the related Mortgage Note
will increase within the Buydown Period as provided in
the related Buydown Agreement so that the effective
interest rate will be equal to the interest rate as set
forth in the related Mortgage Note. The Buydown Mortgage
Loan satisfies the requirements of Xxxxxx Xxx or Xxxxxxx
Mac guidelines;
(ii) The Mortgage and Mortgage Note reflect the permanent
payment terms rather than the payment terms of the
Buydown Agreement. The Buydown Agreement provides for
the payment by the Mortgagor of the full amount of the
Monthly Payment on any Due Date that the Buydown Funds
are available. The Buydown Funds were not used to reduce
the original principal balance of the Mortgage Loan or
to increase the Appraised Value of the Mortgage Property
when calculating the Loan-to-Value Ratios for purposes
of the Agreement and, if the Buydown Funds were provided
by the Company and if required under Xxxxxx Mae or
Xxxxxxx Mac guidelines, the terms of the Buydown
Agreement were disclosed to the appraiser of the
Mortgaged Property;
(iii) The Buydown Funds may not be refunded to the Mortgagor
unless the Mortgagor makes a principal payment for the
outstanding balance of the Mortgage Loan;
(iv) As of the date of origination of the Mortgage Loan, the
provisions of the related Buydown Agreement complied
with the requirements of Xxxxxx Mae or Xxxxxxx Mac
regarding buydown agreements;
33
(nn) Interest Calculation.
Interest on each Mortgage Loan is calculated on the basis of a
360-day year consisting of twelve 30-day months. No Mortgage
Loan provides for interest payable on a simple interest basis.
No Mortgage Loan provides for an increase in the related
Mortgage Interest Rate upon the occurrence of an event of
default under the related Mortgage Note;
(oo) 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;
(pp) Texas Refinance Mortgage Loans.
Each Mortgage Loan originated in the state of Texas pursuant to
Article XVI, Section 50(a)(6) of the Texas Constitution (a
"Texas Refinance Loan") has been originated in compliance with
the provisions of Article XVI, Section 50(a)(6) of the Texas
Constitution, Texas Civil Statutes and the Texas Finance Code;
(qq) Conversion to Fixed Interest Rate.
No Adjustable Rate Mortgage Loan contains a provision permitting
or requiring conversion to a fixed interest rate Mortgage Loan;
(rr) Homeownership and Equity Protection Act.
No Mortgage Loan is a High Cost Loan or Covered Loan;
(ss) Due on Sale.
The Mortgage contains an enforceable provision, to the extent
not prohibited by applicable law as of the date of such
Mortgage, for the acceleration of the payment of the unpaid
principal balance of the Mortgage Loan in the event that the
Mortgaged Property is sold or transferred without the prior
written consent of the mortgagee thereunder;
(tt) Adjustments.
All of the terms of the related Mortgage Note pertaining to
interest adjustments, payment adjustments and adjustments of the
outstanding principal balance, if any, are enforceable and such
adjustments on such
34
Mortgage Loan have been made properly and in accordance with the
provisions of such Mortgage Loan;
(uu) Regarding 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 Xxxxxx Mae guidelines
for such trusts. In the event the Mortgagor is a trust, the
trustee of such trust is a natural person and an obligor under
the related Mortgage Note in his or her individual capacity;
(vv) Flood Certification Contract.
Each Mortgage Loan is covered by a paid in full, life of loan,
flood certification contract and each of these contracts is
assignable to the Purchaser and its assigns;
(ww) Cooperative Loans.
With respect to each Cooperative Loan:
(i) The Cooperative Shares are held by a person as a
tenant-stockholder in a Cooperative. Each original UCC financing
statement, continuation statement or other governmental filing
or recordation necessary to create or preserve the perfection
and priority of the first lien and security interest in the
Cooperative Loan and Proprietary Lease has been timely and
properly made. Any security agreement, chattel mortgage or
equivalent document related to the Cooperative Loan and
delivered to Purchaser or its designee establishes in Purchaser
a valid and subsisting perfected first lien on and security
interest in the Mortgaged Property described therein, and
Purchaser has full right to sell and assign the same. The
Proprietary Lease term expires no less than five years after the
Mortgage Loan term or such other term acceptable to Xxxxxx Xxx
or Xxxxxxx Mac;
(ii) A Cooperative Lien Search has been made by a
company competent to make the same which company is acceptable
to Xxxxxx Xxx or Fredde Mac and qualified to do business in the
jurisdiction where the Cooperative is located;
(iii) (a) The term of the related Proprietary Lease is
not less than the terms of the Cooperative Loan; (b) there is no
provision in any Proprietary Lease which requires the Mortgagor
to offer for sale the Cooperative Shares owned by such Mortgagor
first to the Cooperative; (c) there is no prohibition in any
Proprietary Lease against pledging the Cooperative Shares or
assigning the Proprietary Lease; (d) the Cooperative has been
35
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 Mae or Xxxxxxx Mac; such title is free
and clear of any adverse liens or encumbrances, except the lien
of any blanket mortgage;
(iv) The Company has the right under the terms of the
Mortgage Note, Pledge Agreement and Recognition Agreement to pay
any maintenance charges or assessments owed by the Mortgagor;
(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;
(xx) Contents of the Retained Mortgage File.
The Retained Mortgage File contains the documents listed as
items 6 through 10 of Exhibit D attached hereto;
(yy) Single Premium Credit Life Insurance.
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. None of the proceeds of the
Mortgage Loan were used to finance single premium credit life
insurance, disability insurance, accident or similar insurance
policies as part of the origination of, or as a condition to
closing, the Mortgage Loan;
(zz) Credit Reporting.
With respect to each Mortgage Loan, the Company has fully
furnished, in accordance with the Fair Credit Reporting Act and
its implementing regulations, accurate and complete information
(i.e. 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;
36
(aaa) No Arbitration Provisions.
No Mortgagor agreed to submit to arbitration to resolve any
dispute arising out of or relating in any way to the related
Mortgage Loan or the origination thereof;
(bbb) 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;
(ccc) Prepayment Penalties.
WITH RESPECT TO MORTGAGE LOANS WITH PREPAYMENT PENALTIES, ALL
INFORMATION ON THE RELATED MORTGAGE LOAN SCHEDULE, DATA FILE AND
UNDERWRITING GUIDELINES REGARDING PREPAYMENT PENALTIES IS
COMPLETE AND ACCURATE IN ALL MATERIAL RESPECTS AND EXCEPT FOR
BALLOON MORTGAGE LOANS ORIGINATED IN CERTAIN STATES SPECIFIED IN
THE UNDERWRITING GUIDELINES WITH RESTRICTIONS ON COLLECTION OF
PREPAYMENT PENALTIES, EACH PREPAYMENT PENALTY IS PERMISSIBLE AND
ENFORCEABLE IN ACCORDANCE WITH THE TERMS UNDER APPLICABLE LAW.
PREPAYMENT PENALTIES ON THE MORTGAGE LOANS ARE APPLICABLE TO
PREPAYMENTS RESULTING FROM both refinancings and sales of the
related Mortgaged Properties and the terms of such Prepayment
Penalties do not provide for a waiver or release (i.e.,
"holidays") during the term of the Prepayment Penalty. No
Mortgage Loan originated on or after October 1, 2002 provides
for the payment of a Prepayment Penalty beyond the three-year
term following the origination of the Mortgage Loan. No Mortgage
Loan originated prior to such date provides for the payment of a
Prepayment Penalty beyond the five-year term following the
origination of the Mortgage Loan;
(ddd) Leasehold Estates.
With respect to Mortgage Loans that are secured by a leasehold
estate, the lease is valid, in full force and effect and
conforms to the Underwriting Guidelines; and
(eee) Georgia Fair Lending Act.
No Mortgage Loan was originated on or after October 1, 2002 and
before March 7, 2003, which is secured by property located in
the State of Georgia. No Mortgage Loan originated on or after
March 7, 2003 is a
37
"High Cost Home Loan" as defined in the Georgia Fair Lending
Act, as amended.
Section 3.03. Repurchase.
It is understood and agreed that the representations and warranties set
forth in Sections 3.01 and 3.02 shall survive the sale of the Mortgage Loans to
the Purchaser and the delivery of the applicable Mortgage Loan Documents to the
Custodian and shall inure to the benefit of the Purchaser hereunder,
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
that materially and adversely affects the value of the Mortgage Loans or the
interest of the Purchaser (or that materially and adversely affects the
interests of Purchaser in the related Mortgage Loan in the case of a
representation and warranty relating to a particular Mortgage Loan), the party
discovering such breach shall give prompt written notice to the other.
Within ninety (90) days after 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 or the interest
of the Purchaser therein, the Company shall use its best efforts promptly to
cure such breach in all material respects and, if such breach cannot be cured,
the Company shall, at the Purchaser's option, repurchase such Mortgage Loan at
the Repurchase Price. In the event that a breach shall involve any
representation or warranty set forth in Section 3.01, and such breach cannot be
cured within ninety (90) days of the earlier of either discovery by or notice to
the Company of such breach, all of the Mortgage Loans shall, at the Purchaser's
option, be repurchased by the Company at the Repurchase Price. However, if the
breach shall involve a representation or warranty set forth in Section 3.02 and
the Company discovers or receives notice of any such breach within ninety (90)
days of the Closing Date, the Company shall, if the breach cannot be cured, at
the Purchaser's option and provided that the Company has a Qualified Substitute
Mortgage Loan, rather than repurchase the Mortgage Loan as provided above,
remove such Mortgage Loan (a "Deleted Mortgage Loan") and substitute in its
place a Qualified Substitute Mortgage Loan or Loans, provided that any such
substitution shall be effected not later than one hundred twenty (120) days
after the Closing Date. Notwithstanding the foregoing, however, if a breach is a
Qualification Defect, such cure or repurchase must take place within sixty (60)
days of the discovery of or notice of such breach. Notwithstanding anything to
the contrary herein, within ninety (90) 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 (rr), (yy) and (aaa) of Section 3.02, the Company shall
repurchase such Mortgage Loan at the Repurchase Price.
If the Company has no Qualified Substitute Mortgage Loan, it shall
repurchase the deficient Mortgage Loan within ninety (90) days after the written
notice of the breach or the failure to cure, whichever is later. Any repurchase
of a Mortgage Loan or Loans pursuant to the foregoing provisions of this Section
3.03 shall be accomplished by deposit in the Custodial Account of the amount of
the Repurchase Price for distribution to the Purchaser on the Remittance Date
immediately following the Principal Prepayment Period in which such
38
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.
At the time of repurchase or substitution, the Purchaser and the Company
shall arrange for the reassignment of the Deleted Mortgage Loan to the Company
and the delivery to the Company of any documents held by the Custodian relating
to the Deleted Mortgage Loan. If the Company repurchases a Mortgage Loan that is
a MERS Mortgage Loan, the Company shall cause MERS to designate on the MERS
System the removal of the purchaser as beneficial holder with respect to the
Mortgage Loan. In the event of a repurchase or substitution, the Company shall,
simultaneously with such reassignment, give written notice to the Purchaser that
such repurchase or substitution has taken place, amend the related Mortgage Loan
Schedule to reflect the withdrawal of the Deleted Mortgage Loan from this
Agreement, and, in the case of substitution, identify a Qualified Substitute
Mortgage Loan and amend the related Mortgage Loan Schedule to reflect the
addition of such Qualified Substitute Mortgage Loan to this Agreement. In
connection with any such substitution, the Company shall be deemed to have made
as to such Qualified Substitute Mortgage Loan the representations and warranties
set forth in this Agreement except that all such representations and warranties
set forth in this Agreement shall be deemed made as of the date of such
substitution. The Company shall effect such substitution by delivering to the
Custodian for such Qualified Substitute Mortgage Loan the documents required by
Section 2.03, with the Mortgage Note endorsed as required by Section 2.03. No
substitution will be made in any calendar month after the Determination Date for
such month. The Company shall deposit in the Custodial Account the Monthly
Payment less the Servicing Fee due on such Qualified Substitute Mortgage Loan or
Loans in the month following the date of such substitution. Monthly Payments due
with respect to Qualified Substitute Mortgage Loans in the month of substitution
shall be retained by the Company. With respect to any Deleted Mortgage Loan,
distributions to Purchaser shall include the Monthly Payment due on any Deleted
Mortgage Loan in the month of substitution, and the Company shall thereafter be
entitled to retain all amounts subsequently received by the Company in respect
of such Deleted Mortgage Loan.
For any month in which the Company substitutes a Qualified Substitute
Mortgage Loan for a Deleted Mortgage Loan, the Company shall determine the
amount (if any) by which the aggregate principal balance of all Qualified
Substitute Mortgage Loans as of the date of substitution is less than the
aggregate Stated Principal Balance of all Deleted Mortgage Loans (after
application of scheduled principal payments due in the month of substitution).
The amount of such shortfall shall be distributed by the Company in the month of
substitution pursuant to Section 5.01. Accordingly, on the date of such
substitution, the Company shall deposit from its own funds into the Custodial
Account an amount equal to the amount of such shortfall.
In addition to such repurchase or substitution obligation, the Company
shall indemnify the Purchaser and hold it harmless against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments, and other costs and expenses resulting from any claim, demand,
defense or assertion based on or grounded upon, or resulting from a breach of
the representations and warranties contained in this Agreement. It is understood
and agreed that the obligations of the Company set forth in this Section 3.03 to
cure, substitute for or repurchase a defective Mortgage Loan and to indemnify
the Purchaser as
39
provided in this Section 3.03 constitute the sole remedies of the Purchaser
respecting a breach of the foregoing representations and warranties.
Any cause of action against the Company relating to or arising out of
the breach of any representations and warranties made in Sections 3.01 and 3.02
shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the
Purchaser or notice thereof by the Company to the Purchaser, (ii) failures by
the Company to cure such breach or repurchase such Mortgage Loan as specified
above, and (iii) demand upon the Company by the Purchaser for compliance with
this Agreement.
ARTICLE IV
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 4.01. Company to Act as Servicer.
The Company, as an independent contractor, shall service and administer
the Mortgage Loans on behalf of the Purchaser and shall have full power and
authority, acting alone or through the utilization of a Subervicer or a
Subcontractor, to do any and all things in connection with such servicing and
administration which the Company may deem necessary or desirable, consistent
with the terms of this Agreement and with Accepted Servicing Practices.
Consistent with the terms of this Agreement, the Company may waive,
modify or vary any term of any Mortgage Loan or consent to the postponement of
strict compliance with any such term or in any manner grant indulgence to any
Mortgagor if in the Company's reasonable and prudent determination such waiver,
modification, postponement or indulgence is not materially adverse to the
Purchaser, provided, however, the Company shall not make any future advances
with respect to a Mortgage Loan. The Company shall not permit any modification
with respect to a Mortgage Loan that would change the Mortgage Interest Rate,
defer or forgive the payment of principal or change the final maturity date on
such Mortgage Loan, unless the Mortgagor is in default with respect to the
Mortgage Loan or such default is, in the judgment of the Company, imminent. In
the event that no default exists or is imminent, the Company shall request
written consent from the Purchaser to permit such a modification and the
Purchaser shall provide written consent or notify the Company of its objection
to such modification within five (5) Business Days after its receipt of the
Company's request. In the event of any such modification which permits the
deferral of interest or principal payments on any Mortgage Loan, the Company
shall, on the Business Day immediately preceding the Remittance Date in any
month in which any such principal or interest payment has been deferred, deposit
in the Custodial Account from its own funds, in accordance with Section 5.03,
the difference between (a) such month's principal and one month's interest at
the Mortgage Loan Remittance Rate on the unpaid principal balance of such
Mortgage Loan and (b) the amount paid by the Mortgagor. The Company shall be
entitled to reimbursement for such advances to the same extent as for all other
advances made pursuant to Section 5.03. Without limiting the generality of the
foregoing, the Company shall continue, and is hereby authorized and empowered,
to execute and deliver on behalf of itself and the Purchaser, all instruments of
satisfaction or cancellation, or of partial or full release, discharge and all
other comparable instruments, with respect to the Mortgage Loans and with
respect to the Mortgaged Properties. If reasonably required by the Company, the
40
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.
The Company is authorized and empowered by the Purchaser, in its own
name, when the Company believes it appropriate in its reasonable judgment to
register any Mortgage Loan on the MERS System, or cause the removal from MERS
registration of any Mortgage Lon 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 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.
The Company may arrange for the subservicing of any Mortgage Loan it
services by a Subservicer pursuant to a Subservicing Agreement, a copy of which
shall be provided to the Purchaser; provided, however, that such subservicing
arrangement and the terms of the related Subservicing Agreement must provide for
the servicing of such Mortgage Loan in a manner consistent with the servicing
arrangements contemplated hereunder. The Company shall be solely liable for all
fees owed to the Subservicer under the Subservicing Agreement, regardless
whether the Company's compensation hereunder is adequate to pay such fees.
Notwithstanding the provisions of any Subservicing Agreement, any of the
provisions of this Agreement relating to agreements or arrangements between the
Company and a Subservicer or reference to actions taken through a Subservicer or
otherwise, the Company shall remain obligated and liable to the Purchaser for
the servicing and administration of the Mortgage Loans it services in accordance
with the provisions of this Agreement without diminution of such obligation or
liability by virtue of such Subservicing Agreements or arrangements or by virtue
of indemnification from the Subservicer and to the same extent and under the
same terms and conditions as if the Company alone were servicing and
administering those Mortgage Loans. All actions of each Subservicer performed
pursuant to the related Subservicing Agreement shall be performed as agent of
the Company with the same force and effect as if performed directly by the
Company. For purposes of this Agreement, the Company shall be deemed to have
received any collections, recoveries or payments with respect to the Mortgage
Loans it services that are received by a Subservicer regardless of whether such
payments are remitted by the Subservicer to the Company. Any Subservicing
Agreement entered into by the Company shall provide that it may be assumed or
terminated by the Purchaser, if the Purchaser has assumed the duties of the
Company, at the Purchaser's option, as applicable, without cost or obligation to
the assuming or terminating party
41
or its assigns. Any Subservicing Agreement, and any other transactions or
services relating to the Mortgage Loans involving a Subservicer, shall be deemed
to be between the Company and such Subservicer alone, and the Purchaser shall
not be deemed parties thereto and shall have no claims or rights of action
against, rights, obligations, duties or liabilities to or with respect to the
Subservicer or its officers, directors or employees, except as set forth in this
Section 4.01.
Section 4.02. Liquidation of Mortgage Loans.
In the event that any payment due under any Mortgage Loan and not
postponed pursuant to Section 4.01 is not paid when the same becomes due and
payable, or in the event the Mortgagor fails to perform any other covenant or
obligation under the Mortgage Loan and such failure continues beyond any
applicable grace period, the Company shall take such action as (1) the Company
would take under similar circumstances with respect to a similar mortgage loan
held for its own account for investment, (2) shall be consistent with Accepted
Servicing Practices, (3) the Company shall determine prudently to be in the best
interest of Purchaser, and (4) is consistent with any related PMI Policy or LPMI
Policy. In the event that any payment due under any Mortgage Loan is not
postponed pursuant to Section 4.01 and remains delinquent for a period of 90
days or any other default continues for a period of ninety (90) days beyond the
expiration of any grace or cure period, the Company shall commence foreclosure
proceedings, the Company shall notify the Purchaser in writing of the Company's
intention to do so and shall provide such information regarding the Mortgage
Loan as the Purchaser reasonably may request, provided that the Company shall
not commence foreclosure proceedings if the Purchaser objects to such action
within three (3) Business Days after receiving such notice. The Company shall
follow any written directions of the Purchaser with respect to the servicing of
such Mortgage Loan, as long as such directions are in accordance with Accepted
Servicing Practices and do not violate applicable law. 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
5.03, and the Company's obligation to make such Monthly Advances shall terminate
on the 90th day referred to above. In such connection, the Company shall from
its own funds make all necessary and proper Servicing Advances, provided,
however, that the Company shall not be required to expend its own funds in
connection with any foreclosure or towards the restoration or preservation of
any Mortgaged Property, unless it shall determine (a) that such preservation,
restoration and/or foreclosure will increase the proceeds of liquidation of the
Mortgage Loan to Purchaser after reimbursement to itself for such expenses and
(b) that such expenses will be recoverable by it either through Liquidation
Proceeds (respecting which it shall have priority for purposes of withdrawals
from the Custodial Account pursuant to Section 4.05) or through Insurance
Proceeds (respecting which it shall have similar priority).
Notwithstanding anything to the contrary contained herein, in connection
with a foreclosure or acceptance of a deed in lieu of foreclosure, in the event
the Company has reasonable cause to believe that a Mortgaged Property is
contaminated by hazardous or toxic substances or wastes, or if the Purchaser
otherwise requests an environmental inspection or review of such Mortgaged
Property, such an inspection or review is to be conducted by a qualified
inspector. The cost for such inspection or review shall be borne by the
Purchaser. Upon completion of the inspection or review, the Company shall
promptly provide the Purchaser with a written report of the environmental
inspection.
42
After reviewing the environmental inspection report, the Purchaser shall
determine how the Company shall proceed with respect to the Mortgaged Property.
In the event (a) the environmental inspection report indicates that the
Mortgaged Property is contaminated by hazardous or toxic substances or wastes
and (b) the Purchaser directs the Company to proceed with foreclosure or
acceptance of a deed in lieu of foreclosure, the Company shall be reimbursed for
all reasonable costs associated with such foreclosure or acceptance of a deed in
lieu of foreclosure and any related environmental clean up costs, as applicable,
from the related Liquidation Proceeds, or if the Liquidation Proceeds are
insufficient to fully reimburse the Company, the Company shall be entitled to be
reimbursed from amounts in the Custodial Account pursuant to Section 4.05
hereof. In the event the Purchaser directs the Company not to proceed with
foreclosure or acceptance of a deed in lieu of foreclosure, the Company shall be
reimbursed for all Servicing Advances made with respect to the related Mortgaged
Property from the Custodial Account pursuant to Section 4.05 hereof.
Section 4.03. Collection of Mortgage Loan Payments.
Continuously from the respective Cut-off Date until the principal and
interest on all Mortgage Loans are paid in full or the Mortgage Loans have been
fully liquidated (with respect to Mortgage Loans that remain subject to this
Agreement pursuant to Section 9.01 herein), in accordance with this Agreement
and Accepted Servicing Practices, the Company shall proceed diligently to
collect all payments due under each of the Mortgage Loans when the same shall
become due and payable and shall take special care in ascertaining and
estimating Escrow Payments and all other charges that will become due and
payable with respect to the Mortgage Loan and the Mortgaged Property, to the end
that the installments payable by the Mortgagors will be sufficient to pay such
charges as and when they become due and payable.
Section 4.04. Establishment of and Deposits to Custodial Account.
The Company shall segregate and hold all funds collected and received
pursuant to a Mortgage Loan separate and apart from any of its own funds and
general assets and shall establish and maintain one or more Custodial Accounts,
in the form of time deposit or demand accounts, titled "Xxxxx Fargo Bank, N.A.,
in trust for Bank of America, National Association, its successors or assigns,
and/or subsequent purchasers of Mortgage Loans - P & I." The Custodial Account
shall be established with a Qualified Depository. Upon request of the Purchaser
and within ten (10) days thereof, the Company shall provide the Purchaser with
written confirmation of the existence of such Custodial Account. The Custodial
Account shall at all times be insured to the fullest extent allowed by
applicable law. Funds deposited in the Custodial Account may be drawn on by the
Company in accordance with Section 4.05.
The Company shall deposit in the Custodial Account within two (2)
Business Days of Company's receipt, and retain therein, the following
collections received by the Company and payments made by the Company after the
Cut-off Date, or received by the Company prior to the Cut-off Date but allocable
to a period subsequent thereto, other than payments of principal and interest
due on or before the Cut-off Date:
(i) all payments on account of principal on the Mortgage
Loans, including all Principal Prepayments (including
Prepayment Penalties paid by the
43
Mortgagor or other amounts paid by the Company
pursuant to Section 4.21 of this Agreement);
(ii) all payments on account of interest on the Mortgage
Loans adjusted to the Mortgage Loan Remittance Rate;
(iii) all Liquidation Proceeds;
(iv) all Insurance Proceeds including amounts required to be
deposited pursuant to Section 4.10 (other than proceeds
to be held in the Escrow Account and applied to the
restoration or repair of the Mortgaged Property or
released to the Mortgagor in accordance with Section
4.14), Section 4.11 and Section 4.15;
(v) all Condemnation Proceeds which are not applied to the
restoration or repair of the Mortgaged Property or
released to the Mortgagor in accordance with Section
4.14;
(vi) any amount required to be deposited in the Custodial
Account pursuant to Section 4.01, 5.03, 6.01 or 6.02;
(vii) any amounts payable in connection with the repurchase of
any Mortgage Loan pursuant to Section 3.03 and all
amounts required to be deposited by the Company in
connection with a shortfall in principal amount of any
Qualified Substitute Mortgage Loan pursuant to Section
3.03;
(viii) with respect to each Principal Prepayment, the
Prepayment Interest Shortfall (to be paid by the Company
out of its own funds);
(ix) any amounts required to be deposited by the Company
pursuant to Section 4.11 in connection with the
deductible clause in any blanket hazard insurance
policy;
(x) any amounts received with respect to or related to any
REO Property and all REO Disposition Proceeds pursuant
to Section 4.16; and
(xi) 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.
The foregoing requirements for deposit into the Custodial Account shall
be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of late payment charges and
assumption fees, to the extent permitted by Section 6.01, need not be deposited
by the Company into the Custodial Account. Any interest paid on funds deposited
in the Custodial Account by the depository institution shall accrue to the
benefit of the Company and the Company shall be entitled to retain and withdraw
such interest from the Custodial Account pursuant to Section 4.05. The Company
shall maintain adequate records with respect to all deposits made pursuant to
this Section 4.04. All funds required to be deposited in
44
the Custodial Account shall be held in trust for the Purchaser until withdrawn
in accordance with Section 4.05.
Section 4.05. Permitted Withdrawals From Custodial Account.
The Company shall, from time to time, withdraw funds from the Custodial
Account for the following purposes:
(i) to make payments to the Purchaser in the amounts and in
the manner provided for in Section 5.01;
(ii) to reimburse itself for Monthly Advances of the
Company's funds made pursuant to Section 5.03, the
Company's right to reimburse itself pursuant to this
sub-clause (ii) being limited to amounts received on the
related Mortgage Loan which represent late 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 3.03 or 6.02, the Company's
right to such reimbursement shall be subsequent to the
payment to the Purchaser of the Repurchase Price
pursuant to such sections and all other amounts required
to be paid to the Purchaser with respect to such
Mortgage Loan;
(iii) to reimburse itself for unreimbursed Servicing Advances,
and for any unpaid Servicing Fees, the Company's right
to reimburse itself pursuant to this sub-clause (iii)
with respect to any Mortgage Loan being limited to
related Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds and such other amounts as may be
collected by the Company from the Mortgagor or otherwise
relating to the Mortgage Loan, it being understood that,
in the case of any such reimbursement, the Company's
right thereto shall be prior to the rights of Purchaser,
except that where the Company is required to repurchase
a Mortgage Loan pursuant to Section 3.03 or 6.02, in
which case the Company's right to such reimbursement
shall be subsequent to the payment to the Purchaser of
the Repurchase Price pursuant to such sections and all
other amounts required to be paid to the Purchaser with
respect to such Mortgage Loan;
(iv) to pay itself interest on funds deposited in the
Custodial Account if such interest amount was previously
credited;
(v) to reimburse itself for expenses incurred and
reimbursable to it pursuant to Section 8.01;
(vi) to pay any amount required to be paid pursuant to
Section 4.16 related to any REO Property, it being
understood that, in the case of any such expenditure or
withdrawal related to a particular REO Property, the
amount of such expenditure or withdrawal from the
Custodial Account
45
shall be limited to amounts on deposit in the Custodial
Account with respect to the related REO Property;
(vii) to reimburse itself for any Servicing Advances or REO
expenses after liquidation of the Mortgaged Property not
otherwise reimbursed above;
(viii) to remove funds inadvertently placed in the Custodial
Account by the Company;
(ix) to clear and terminate the Custodial Account upon the
termination of this Agreement; and
(x) to transfer funds to another Qualified Depository.
In the event that the Custodial Account is interest bearing, on each Remittance
Date, the Company shall withdraw all funds from the Custodial Account except for
those amounts which, pursuant to Section 5.01, the Company is not obligated to
remit on such Remittance Date. The Company may use such withdrawn funds only for
the purposes described in this Section 4.05. The Company shall keep and maintain
separate accounting, on a Mortgage Loan by Mortgage Loan basis, for the purpose
of justifying any withdrawal from the Custodial Account, to the extent held by
or on behalf of it, pursuant to sub-clauses (iii), (v), (vi) and (vii) above.
Section 4.06. Establishment of and Deposits to Escrow Account.
The Company shall segregate and hold all funds collected and received
pursuant to a Mortgage Loan constituting Escrow Payments separate and apart from
any of its own funds and general assets and shall establish and maintain one or
more Escrow Accounts, in the form of time deposit or demand accounts, titled,
"Xxxxx Fargo Bank, N.A., in trust for Bank of America, National Association, its
successors or assigns, and/or subsequent purchasers of Residential Mortgage
Loans, and various Mortgagors - T & I." The Escrow Accounts shall be established
with a Qualified Depository, in a manner which shall provide maximum available
insurance thereunder. Upon request of the Purchaser and within ten (10) days
thereof, the Company shall provide the Purchaser with written confirmation of
the existence of such Escrow Account. Funds deposited in the Escrow Account may
be drawn on by the Company in accordance with Section 4.07.
The Company shall deposit in the Escrow Account or Accounts within two
(2) Business Days of Company's receipt, and retain therein:
(i) all Escrow Payments collected on account of the Mortgage
Loans, for the purpose of effecting timely payment of
any such items as required under the terms of this
Agreement;
(ii) all amounts representing Insurance Proceeds or
Condemnation Proceeds which are to be applied to the
restoration or repair of any Mortgaged Property; and
(iii) all payments on account of Buydown Funds.
46
The Company shall make withdrawals from the Escrow Account only to
effect such payments as are required under this Agreement, as set forth in
Section 4.07. The Company shall be entitled to retain any interest paid on funds
deposited in the Escrow Account by the depository institution, other than
interest on escrowed funds required by law to be paid to the Mortgagor. To the
extent required by law, the Company shall pay interest on escrowed funds to the
Mortgagor notwithstanding that the Escrow Account may be non-interest bearing or
that interest paid thereon is insufficient for such purposes.
Section 4.07. Permitted Withdrawals From Escrow Account.
Withdrawals from the Escrow Account or Accounts may be made by the
Company only:
(i) to effect timely payments of ground rents, taxes,
assessments, water rates, mortgage insurance premiums,
condominium charges, fire and hazard insurance premiums
or other items constituting Escrow Payments for the
related Mortgage;
(ii) to reimburse the Company for any Servicing Advances made
by the Company pursuant to Section 4.08 with respect to
a related Mortgage Loan, but only from amounts received
on the related Mortgage Loan which represent late
collections of Escrow Payments thereunder;
(iii) to refund to any Mortgagor any funds found to be in
excess of the amounts required under the terms of the
related Mortgage Loan;
(iv) for transfer to the Custodial Account for application to
reduce the principal balance of the Mortgage Loan in
accordance with the terms of the related Mortgage and
Mortgage Note;
(v) for application to the restoration or repair of the
Mortgaged Property in accordance with the procedures
outlined in Section 4.14;
(vi) to pay to the Company, or any Mortgagor to the extent
required by law, any interest paid on the funds
deposited in the Escrow Account;
(vii) to remit to Purchaser payments on account of Buydown
Funds as applicable;
(viii) to remove funds inadvertently placed in the Escrow
Account by the Company; and
(ix) to clear and terminate the Escrow Account on the
termination of this Agreement.
47
Section 4.08. Payment of Taxes, Insurance and Other Charges.
With respect to each Mortgage Loan, the Company shall maintain accurate
records reflecting the status of ground rents, taxes, assessments, water rates,
sewer rents, and other charges which are or may become a lien upon the Mortgaged
Property and the status of PMI Policy or LPMI Policy premiums and fire and
hazard insurance coverage and shall obtain, from time to time, all bills for the
payment of such charges (including 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. To the
extent that a Mortgage does not provide for Escrow Payments, the Company shall
use its reasonable efforts in accordance with Accepted Servicing Practices to
determine whether any such payments are made by the Mortgagor at the time they
first become due. The Company shall make advances from its own funds to effect
such delinquent payments within such time period as will avoid the loss of the
related Mortgaged Property by foreclosure of a tax or other lien. Advances
pursuant to this Section 4.08 shall constitute Servicing Advances hereunder;
provided that the Company shall be required to so advance only to the extent
that the Company, in its good faith judgment, believes the Servicing Advance to
be recoverable from Insurance Proceeds or Liquidation Proceeds or otherwise. The
costs incurred by the Company, if any, in effecting the timely payments of taxes
and assessments on the Mortgaged Properties and related insurance premiums shall
not be added to the Stated Principal Balances of the related Mortgage Loans,
notwithstanding that the terms of such Mortgage Loans so permit.
Section 4.09. Protection of Accounts.
The Company may transfer the Custodial Account, Subsidy Account or the
Escrow Account to a different Qualified Depository from time to time, provided
that the Company shall give notice to the Purchaser of any proposed change of
the location of either Account not later than ten (10) Business Days prior to
any change thereof.
Section 4.10. Maintenance of Hazard Insurance.
The Company shall cause to be maintained for each Mortgage Loan hazard
insurance such that all buildings upon the Mortgaged Property are insured by an
insurer acceptable to Xxxxxx Xxx or Xxxxxxx Mac against loss by fire, hazards of
extended coverage and such other hazards as are customary or required by law in
the area where the Mortgaged Property is located, in an amount which is at least
equal to the lesser of (i) 100% of the insurable value, on a replacement cost
basis, of the improvements on the related Mortgaged Property and (ii) the
greater of (a) the outstanding principal balance of the Mortgage Loan and (b) an
amount such that the proceeds thereof shall be sufficient to prevent the
Mortgagor or the loss payee from becoming a co-insurer. In the event a hazard
insurance policy shall be in danger of being terminated, or in the event the
insurer shall cease to be acceptable to Xxxxxx Mae or Xxxxxxx Mac, the Company
shall notify the Purchaser and the related Mortgagor, and shall use its best
efforts,
48
as permitted by applicable law, to obtain from another qualified insurer a
replacement hazard insurance policy substantially and materially similar in all
respects to the original policy. In no event, however, shall a Mortgage Loan be
without a hazard insurance policy at any time, subject only to Section 4.11
hereof.
If the related Mortgaged Property is located in an area identified by
the Federal Emergency Management Agency ("FEMA") as having special flood hazards
(and such flood insurance has been made available) a flood insurance policy
meeting the requirements of the current guidelines of the Federal Insurance
Administration is in effect with a generally acceptable insurance carrier
acceptable to Xxxxxx Mae or Xxxxxxx Mac in an amount representing coverage equal
to the lesser of (i) the minimum amount required, under the terms of coverage,
to compensate for any damage or loss on a replacement cost basis (or the unpaid
balance of the mortgage if replacement cost coverage is not available for the
type of building insured) and (ii) the maximum amount of insurance which is
available under the Flood Disaster Protection Act of 1973, as amended. If at any
time during the term of the Mortgage Loan, the Company determines in accordance
with applicable law and pursuant to the FEMA guides that a Mortgaged Property is
located in a special flood hazard area and is not covered by flood insurance or
is covered in an amount less than the amount required by the Flood Disaster
Protection Act of 1973, as amended, the Company shall notify the related
Mortgagor to obtain such flood insurance coverage, and if said Mortgagor fails
to obtain the required flood insurance coverage within forty-five (45) days
after such notification, the Company shall immediately force place the required
flood insurance on the Mortgagor's behalf. Any out-of-pocket expenses or advance
made by the Company on such force placed flood insurance coverage shall be
deemed a Servicing Advance.
If a Mortgage is secured by a unit in a condominium project, the Company
shall verify that the coverage required of the owner's association, including
hazard, flood, liability, and fidelity coverage, is being maintained in
accordance with then current Xxxxxx Mae requirements, and secure from the
owner's association its agreement to notify the Company promptly of any change
in the insurance coverage or of any condemnation or casualty loss that may have
a material effect on the value of the Mortgaged Property as security.
In the event that any Purchaser or the Company shall determine that the
Mortgaged Property should be insured against loss or damage by hazards and risks
not covered by the insurance required to be maintained by the Mortgagor pursuant
to the terms of the Mortgage, the Company shall communicate and consult with the
Mortgagor with respect to the need for such insurance and bring to the
Mortgagor's attention the required amount of coverage for the Mortgaged Property
and if the Mortgagor does not obtain such coverage, the Company shall
immediately force place the required coverage on the Mortgagor's behalf.
All policies required hereunder shall name the Company as loss payee and
shall be endorsed with standard or union mortgagee clauses, without
contribution, which shall provide for at least thirty (30) days prior written
notice of any cancellation, reduction in amount or material change in coverage.
The Company shall not interfere with the Mortgagor's freedom of choice
in selecting either his insurance carrier or agent, provided, however, that the
Company shall not accept any
49
such insurance policies from insurance companies unless such companies are
acceptable to Xxxxxx Xxx and Xxxxxxx Mac and are licensed to do business in the
jurisdiction in which the Mortgaged Property is located. The Company shall
determine that such policies provide sufficient risk coverage and amounts, that
they insure the property owner, and that they properly describe the property
address. The Company shall furnish to the Mortgagor a formal notice of
expiration, in accordance with the Accepted Servicing Practices, of any such
insurance in sufficient time for the Mortgagor to arrange for renewal coverage
by the expiration date.
Pursuant to Section 4.04, any amounts collected by the Company under any
such policies (other than amounts to be deposited in the Escrow Account and
applied to the restoration or repair of the related Mortgaged Property, or
property acquired in liquidation of the Mortgage Loan, or to be released to the
Mortgagor, in accordance with the Company's normal servicing procedures as
specified in Section 4.14) shall be deposited in the Custodial Account subject
to withdrawal pursuant to Section 4.05.
Section 4.11. Maintenance of Mortgage Impairment Insurance.
In the event that the Company shall obtain and maintain a blanket policy
insuring against losses arising from fire and hazards covered under extended
coverage on all of the Mortgage Loans, then, to the extent such policy (1) names
the Company as loss payee, (2) provides coverage in an amount equal to the
amount required pursuant to Section 4.10 without coinsurance and (3) otherwise
complies with Accepted Servicing Practices and all other requirements of Section
4.10, it shall conclusively be deemed to have satisfied its obligations as set
forth in Section 4.10. The Company shall prepare and make any claims on the
blanket policy as deemed necessary by the Company in accordance with Accepted
Servicing Practices. Any amounts collected by the Company under any such policy
relating to a Mortgage Loan shall be deposited in the Custodial Account subject
to withdrawal pursuant to Section 4.05. Such policy may contain a deductible
clause, in which case, in the event that there shall not have been maintained on
the related Mortgaged Property a policy complying with Section 4.10, and there
shall have been a loss which would have been covered by such policy, the Company
shall deposit in the Custodial Account at the time of such loss the amount not
otherwise payable under the blanket policy because of such deductible clause,
such amount to be deposited from the Company's funds, without reimbursement
therefor. Upon request of the Purchaser, the Company shall cause to be delivered
to such Purchaser a certificate of insurance and a statement from the insurer
thereunder that such policy shall in no event be terminated or materially
modified without 30 days' prior written notice to such Purchaser.
Section 4.12. Maintenance of Fidelity Bond and Errors and Omissions Insurance.
The Company shall maintain with responsible companies, at its own
expense, a blanket Fidelity Bond and an Errors and Omissions Insurance Policy,
with broad coverage on all officers, employees or other persons acting in any
capacity requiring such persons to handle funds, money, documents or papers
relating to the Mortgage Loans ("Company Employees"). Any such Fidelity Bond and
Errors and Omissions Insurance Policy shall be in the form of the Mortgage
Banker's Blanket Bond and shall protect and insure the Company against losses,
including forgery, theft, embezzlement, fraud, errors and omissions and
negligent acts of such Company Employees. Such Fidelity Bond and Errors and
Omissions Insurance Policy also shall
50
protect and insure the Company against losses in connection with the release or
satisfaction of a Mortgage Loan without having obtained payment in full of the
indebtedness secured thereby. No provision of this Section 4.12 requiring such
Fidelity Bond and Errors and Omissions Insurance Policy shall diminish or
relieve the Company from its duties and obligations as set forth in this
Agreement. The minimum coverage under any such Fidelity Bond and Errors and
Omissions Insurance Policy shall be acceptable to Xxxxxx Mae or Xxxxxxx Mac.
Upon the request of any Purchaser, the Company shall cause to be delivered to
such Purchaser a certificate of insurance for such Fidelity Bond and Errors and
Omissions Insurance Policy and a statement from the surety and the insurer that
such Fidelity Bond and Errors and Omissions Insurance Policy shall in no event
be terminated or materially modified without 30 days' prior written notice to
the Purchaser.
Section 4.13. Inspections.
If any Mortgage Loan is more than sixty (60) days delinquent, the
Company immediately shall inspect the Mortgaged Property 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 4.14. Restoration of Mortgaged Property.
The Company need not obtain the approval of the Purchaser prior to
releasing any Insurance Proceeds or Condemnation Proceeds to the Mortgagor to be
applied to the restoration or repair of the Mortgaged Property if such release
is in accordance with Accepted Servicing Practices. For claims greater than
$15,000, at a minimum the Company shall comply with the following conditions in
connection with any such release of Insurance Proceeds or Condemnation Proceeds:
(i) the Company shall receive satisfactory independent
verification of completion of repairs and issuance of
any required approvals with respect thereto;
(ii) the Company shall take all steps necessary to preserve
the priority of the lien of the Mortgage, including, but
not limited to requiring waivers with respect to
mechanics' and materialmen's liens;
(iii) the Company shall verify that the Mortgage Loan is not
in default; and
(iv) pending repairs or restoration, the Company shall place
the Insurance Proceeds or Condemnation Proceeds in the
Escrow Account.
If the Purchaser is named as an additional loss payee, the Company is
hereby empowered to endorse any loss draft issued in respect of such a claim in
the name of the Purchaser.
51
Section 4.15. Maintenance of PMI Policy and LPMI Policy; Claims.
Except as indicated on the Mortgage Loan Schedule, with respect to each
Mortgage Loan with an LTV greater than 80% at the time of origination, the
Company shall, without any cost to the Purchaser maintain in full force and
effect a PMI Policy or LPMI Policy insuring a portion of the unpaid principal
balance of the Mortgage Loan as to payment defaults. If the Mortgage Loan is
insured by a PMI Policy for which the Mortgagor pays all premiums, the coverage
will remain in place until (i) the LTV decreases to 78% or (ii) the PMI Policy
is otherwise terminated pursuant to the Homeowners Protection Act of 1998, 12
USC SS.4901, et seq. In the event that such PMI Policy shall be terminated other
than as required by law, the Company shall obtain from another Qualified Insurer
a comparable replacement policy, with a total coverage equal to the remaining
coverage of such terminated PMI Policy. If the insurer shall cease to be a
Qualified Insurer, the Company shall determine whether recoveries under the PMI
Policy are jeopardized for reasons related to the financial condition of such
insurer, it being understood that the Company shall in no event have any
responsibility or liability for any failure to recover under the PMI Policy for
such reason. If the Company determines that recoveries are so jeopardized, it
shall notify the Purchaser and the Mortgagor, if required, and obtain from
another Qualified Insurer a replacement insurance policy. The Company 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 Purchaser shall notify the Company
of any Mortgage Loan covered under an LPMI Policy. The Company shall not take
any action which would result in noncoverage under any applicable PMI Policy or
LPMI Policy of any loss which, but for the actions of the Company would have
been covered thereunder. In connection with any assumption or substitution
agreement entered into or to be entered into pursuant to Section 6.01, the
Company shall promptly notify the insurer under the related PMI Policy or LPMI
Policy, if any, of such assumption or substitution of liability in accordance
with the terms of such PMI Policy or LPMI 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 LPMI Policy. If such PMI Policy or LPMI Policy
is terminated as a result of such assumption or substitution of liability, the
Company shall obtain a replacement PMI Policy or LPMI Policy as provided above.
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 LPMI Policy in a timely fashion in accordance
with the terms of such PMI Policy or LPMI Policy and, in this regard, to take
such action as shall be necessary to permit recovery under any PMI Policy or
LPMI Policy respecting a defaulted Mortgage Loan. Pursuant to Section 4.04, any
amounts collected by the Company under any PMI Policy or LPMI Policy shall be
deposited in the Custodial Account, subject to withdrawal pursuant to Section
4.05.
Section 4.16. Title, Management and Disposition of REO Property.
In the event that title to any Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure, the deed or certificate of sale
shall be taken in the name of the Purchaser, or in the event the Purchaser is
not authorized or permitted to hold title to real property in the state where
the REO Property is located, or would be adversely affected under the "doing
business" or tax laws of such state by so holding title, the deed or certificate
of sale shall be taken in the name
52
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 Purchaser shall have the option to manage and operate the REO
Property provided the Purchaser gives written notice of its intention to do so
within thirty (30) days after such REO Property is acquired in foreclosure or by
deed in lieu of foreclosure. The election by the Purchaser to manage the REO
Property shall not constitute a termination of any rights of the Company
pursuant to Section 11.02.
In the event the Purchaser does not elect to manage its own REO
Property, 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 prior to
the close of the third calendar year beginning after the year in which title has
been taken to such REO Property, unless (i) a REMIC election has not been made
with respect to the arrangement under which the Mortgage Loans and the REO
Property are held, and (ii) the Company determines, 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 three
years 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 shall name the Company as mortgagee, and
such purchase money mortgage shall not be held pursuant to this Agreement, but
instead a separate agreement among the Company and Purchaser shall be entered
into with respect to such purchase money mortgage.
The Company shall also maintain on each REO Property fire and hazard
insurance with extended coverage in amount which is at least equal to the
maximum insurable value of the improvements which are a part of such property,
liability insurance and, to the extent required and available under the Flood
Disaster Protection Act of 1973, as amended, flood insurance in the amount
required above.
The disposition of REO Property shall be carried out by the Company at
such price, and upon such terms and conditions, as the Company deems to be in
the best interests of the Purchaser. Notwithstanding any other provision in this
Section 4.05, no REO Property shall be marketed for less than the appraisal
value of the related Mortgaged Property without the prior consent of the
Purchaser, and no REO Property shall be sold for less than ninety percent (90%)
of its appraised value without the prior written consent of the Purchaser. The
proceeds of sale of
53
the REO Property shall be promptly deposited in the Custodial Account. As soon
as practical thereafter the expenses of such sale shall be paid and the Company
shall reimburse itself for any related unreimbursed Servicing Advances, unpaid
Servicing Fees and unreimbursed advances made pursuant to Section 5.03. On the
Remittance Date immediately following the receipt of such sale proceeds, the net
cash proceeds of such sale remaining in the Custodial Account shall be
distributed to the Purchaser.
The Company shall withdraw from the Custodial Account funds necessary
for the proper operation management and maintenance of the REO Property,
including the cost of maintaining any hazard insurance pursuant to Section 4.10
and the fees of any third party managing agent of the Company, or the Company
itself. The REO management fee shall be the greater of one percent (1%) of the
gross sales price of the REO Property or $1500.00 per REO Property, provided
however, the REO management fee shall not exceed the net Liquidation Proceeds.
The Company shall make monthly distributions on each Remittance Date to the
Purchaser of the net cash flow from the REO Property (which shall equal the
revenues from such REO Property net of the expenses described in this Section
4.16 and of any reserves reasonably required from time to time to be maintained
to satisfy anticipated liabilities for such expenses).
Section 4.17. Real Estate Owned Reports.
Together with the statement furnished pursuant to Section 5.02, the
Company shall furnish to the Purchaser on or before the Remittance Date each
month a statement with respect to any REO Property covering the operation of
such REO Property for the previous month and the Company's efforts in connection
with the sale of such REO Property and any rental of such REO Property
incidental to the sale thereof for the previous month. That statement shall be
accompanied by such other information as the Purchaser shall reasonably request.
Section 4.18. Liquidation Reports.
Upon the foreclosure sale of any Mortgaged Property or the acquisition
thereof by the Purchaser pursuant to a deed in lieu of foreclosure, the Company
shall submit to the Purchaser a liquidation report with respect to such
Mortgaged Property.
Section 4.19. Reports of Foreclosures and Abandonments of Mortgaged Property.
Following the foreclosure sale or abandonment of any Mortgaged Property,
the Company shall report such foreclosure or abandonment as required pursuant to
Section 6050J of the Code. The Company shall file information reports with
respect to the receipt of mortgage interest received in a trade or business and
information returns relating to cancellation of indebtedness income with respect
to any Mortgaged Property as required by the Code. Such reports shall be in form
and substance sufficient to meet the reporting requirements imposed by the Code.
Section 4.20. Notification of Adjustments.
With respect to each Adjustable Rate Mortgage Loan, the Company shall
adjust the Mortgage Interest Rate on the related Adjustment Date in compliance
with the requirements of applicable law and the related Mortgage and Mortgage
Note. The Company shall execute and deliver any and all necessary notices
required under applicable law and the terms of the related
54
Mortgage Note and Mortgage regarding the Mortgage Interest Rate adjustments.
Upon the discovery by the Company or the receipt of notice from the Purchaser
that the Company has failed to adjust a Mortgage Interest Rate in accordance
with the terms of the related Mortgage Note, the Company shall immediately
deposit in the Custodial Account from its own funds the amount of any interest
loss or deferral caused the Purchaser thereby.
Section 4.21. Credit Reporting; Xxxxx-Xxxxx-Xxxxxx Act.
(a) The Company agrees to fully furnish, in accordance with the Fair
Credit Reporting Act and its implementing regulations, accurate and complete
information on its borrower credit files to Equifax, Experian, and Trans Union
Credit Information Company (three of the credit repositories), on a monthly
basis.
(b) The Company agrees to transmit full file credit reporting data
for each Mortgage Loan pursuant to Xxxxxx Mae Guide Announcement 95-19 and for
each Mortgage Loan, the Company shall report one of the following statuses each
month: new origination, current, delinquent (30, 60, 90 days, etc.), bankruptcy,
foreclosed or charged off.
(c) The Company shall comply with Title V of the Xxxxx-Xxxxx-Xxxxxx
Act of 1999 and all applicable regulations promulgated thereunder, relating to
the Mortgage Loans and the related borrowers and shall provide all required
notices thereunder.
Section 4.22. Confidentiality/Protection of Customer Information.
The Company shall keep confidential and shall not divulge to any party, without
the Purchaser's prior written consent, the price paid by the Purchaser for the
Mortgage Loans, except to the extent that it is reasonable and necessary for the
Company to do so in working with legal counsel, auditors, taxing authorities or
other governmental agencies. Each party agrees that it shall comply with all
applicable laws and regulations regarding the privacy or security of Customer
Information and shall maintain appropriate administrative, technical and
physical safeguards to protect the security, confidentiality and integrity of
Customer Information, including maintaining security measures designed to meet
the objectives of the Interagency Guidelines Establishing Standards for
Safeguarding Customer Information, 66 Fed. Reg. 8616 (the "Interagency
Guidelines"). The Company shall promptly make available to the Purchaser's
regulators information regarding such security measures as requested by such
regulators. For purposes of this Section, the term "Customer Information" shall
have the meaning assigned to it in the Interagency Guidelines. Each party
further agrees that any Customer Information transmitted electronically by
either party must be encrypted.
Section 4.23 Disaster Recovery/Business Continuity Plan.
The Company shall maintain contingency plans, recovery plans and proper
risk controls to ensure Company's continued performance under this Agreement.
The Company agrees to make available to the Purchaser's regulators information
regarding such plans as requested by such regulators.
Section 4.24 Quality Control Procedures.
55
The Company shall have an internal quality control program that
verifies, on a regular basis, the existence and accuracy of the legal documents,
credit documents, property appraisals, and underwriting decisions. The program
shall include evaluating and monitoring the overall quality of the Company's
loan production and the servicing activities of the Company in accordance with
industry standards.
Section 4.25 Application of Buydown Funds.
With respect to each Buydown Mortgage Loan, the Company shall have
deposited into the Escrow Account, no later than the last day of the month,
Buydown Funds in an amount equal to the aggregate undiscounted amount of
payments that, when added to the amount the Mortgagor on such Mortgage Loan is
obligated to pay on all Due Dates in accordance with the terms of the Buydown
Agreement, is equal to the full scheduled Monthly Payments which are required to
be paid by the Mortgagor under the terms of the related Mortgage Note (without
regard to the related Buydown Agreement as if the Mortgage Loan were not subject
to the terms of the Buydown Agreement). With respect to each Buydown Mortgage
Loan, the Company will distribute to the Purchaser on each Remittance Date an
amount of Buydown Funds equal to the amount that, when added to the amount
required to be paid on such date by the related Mortgagor, pursuant to and in
accordance with the related Buydown Agreement, equals the full Monthly Payment
that would otherwise be required to be paid on such Mortgage Loan by the related
Mortgagor under the terms of the related Mortgage Note (as if the Mortgage Loan
were not a Buydown Mortgage Loan and without regard to the related Buydown
Agreement).
If the Mortgagor on a Buydown Mortgage Loan defaults on such
Mortgage Loan during the Buydown Period and the Mortgaged Property securing such
Buydown Mortgage Loan is sold in the liquidation thereof (either by the Company
or the insurer under any related Primary Insurance Policy) the Company shall, on
the Remittance Date following the date upon which Liquidation Proceeds or REO
Disposition proceeds are received with respect to any such Buydown Mortgage
Loan, distribute to the Purchaser all remaining Buydown Funds for such Mortgage
Loan then remaining in the Escrow Account. Pursuant to the terms of each Buydown
Agreement, any amounts distributed to the Purchaser in accordance with the
preceding sentence will be applied to reduce the outstanding principal balance
of the related Buydown Mortgage Loan. If a Mortgagor on a Buydown Mortgage Loan
prepays such Mortgage Loan in it entirety during the related Buydown Period, the
Company shall be required to withdraw from the Escrow Account any Buydown Funds
remaining in the Escrow Account with respect to such Buydown Mortgage Loan in
accordance with the related Buydown Agreement. If a principal prepayment by a
Mortgagor on a Buydown Mortgage Loan during the related Buydown Period, together
with any Buydown Funds then remaining in the Escrow Account related to such
Buydown Mortgage Loan, would result in a principal prepayment of the entire
unpaid principal balance of the Buydown Mortgage Loan, the Company shall
distribute to the Purchaser on the Remittance Date occurring in the month
immediately succeeding the month in which such Principal Prepayment is received,
all Buydown Funds related to such Mortgage Loan so remaining in the Escrow
Account, together with any amounts required to be deposited into the Custodial
Account.
56
Section 4.26 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 Bank of America, National Association, its
successors or assigns, and/or subsequent purchasers of Residential Mortgage
Loans, and various Mortgagors." The Subsidy Account shall be an eligible deposit
account established with an eligible institution.
(b) The Company shall, from time to time, withdraw funds from the
Subsidy Account for the following purposes:
(i) to deposit in the Custodial Account in the amounts and
in the manner provided for in Section 4.04(xi);
(ii) to transfer funds to another eligible institution in
accordance with Section 4.09 hereof;
(iii) to withdraw funds deposited in error; and
(iv) to clear and terminate the Subsidy Account upon the
termination of this Agreement.
(c) Notwithstanding anything to the contrary elsewhere in this
Agreement, the Company may employ the Custodial Account as the Subsidy Account
to the extent that the Company can separately identify any Subsidy Funds
deposited therein.
Section 4.27. Automated Servicing Systems.
The Company shall establish, format, maintain and transmit to the
Purchaser the Company's electronic mortgage servicing files and other electronic
data storage and transmission systems related to the Mortgage Loans
(collectively, the "Servicing Systems") in accordance with the guidelines and
requirements set forth in Exhibit F attached hereto (the "Servicer
Requirements") and the Company shall cooperate with the Purchaser to receive
data from the Purchaser that is to be incorporated in the Servicing Systems in
accordance with the Servicer Requirements.
Section 4.28. Prepayment Penalties.
To the extent consistent with the terms of this Agreement, the Company
may waive (or permit a subservicer to waive) a Prepayment Penalty only under the
following circumstances: (i) such waiver relates to a default or a reasonably
forseeable default and 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, (ii) such waiver is required
under state
57
or federal law or (iii) the mortgage debt has been accelerated as a result of
the Mortgagor's default in making its Monthly Payments. The Company shall not
waive any Prepayment Penalty unless it is waived in accordance with this Section
4.28.
The Company shall pay the amount of any Prepayment Penalty (to the
extent not collected and remitted to the Purchaser) to the Purchaser or its
assignees if (1) the representation in Section 3.02(ccc) is breached and such
breach materially and adversely affects the interests of the Purchaser or its
assigns, or (2) the Company waives any Prepayment Penalty other than as
permitted under this Section 4.28. The Company shall pay the amount of such
Prepayment Penalty, for the benefit of the Purchaser or any assignee of the
Purchaser, by depositing such amount into the Custodial Account at the time that
the amount prepaid on the related Mortgage Loan is required to be deposited into
the Custodial Account.
Section 4.29 Use of Subservicers and Subcontractors.
The Company shall not hire or otherwise utilize the services of any
Subservicer to fulfill any of the obligations of the Company under this
Agreement or any Reconstitution Agreement unless the Company complies with the
provisions of paragraph (a) of this Section 4.29. The Company shall not hire or
otherwise utilize the services of any Subcontractor, and shall not permit any
Subservicer to hire or otherwise utilize the services of any Subcontractor, to
fulfill any of the obligations of the Company under this Agreement or any
Reconstitution Agreement unless the Company complies with the provisions of
paragraph (b) of this Section 4.29.
(a) It shall not be necessary for the Company to seek the consent of
the Purchaser or any Depositor to the utilization of any Subservicer.
The Company shall cause any Subservicer used by the Company (or by any
Subservicer) for the benefit of the Purchaser and any Depositor to
comply with the provisions of this Section 4.29 and with Sections 6.04,
6.06, 9.01(e)(iii), 9.01(e)(v), 9.01(e)(vi) and 9.01(f) of this
Agreement to the same extent as if such Subservicer were the Company,
and to provide the information required with respect to such Subservicer
under Section 9.01(e)(iv) of this Agreement. The Company shall be
responsible for obtaining from each Subservicer and delivering to the
Purchaser and any Depositor any servicer compliance statement required
to be delivered by such Subservicer under Section 6.04 and any
assessment of compliance and attestation required to be delivered by
such Subservicer under Section 6.06 and any certification required to be
delivered to the Person that will be responsible for signing the
Sarbanes Certification under Section 6.06 as and when required to be
delivered.
(b) It shall not be necessary for the Company to seek the consent of
the Purchaser or any Depositor to the utilization of any Subcontractor.
The Company shall promptly upon request provide to the Purchaser and any
Depositor (or any designee of the Depositor, such as 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.
58
As a condition to the utilization of any Subcontractor determined to be
"participating in the servicing function" within the meaning of Item 1122 of
Regulation AB, the Company shall cause any such Subcontractor used by the
Company (or by any Subservicer) for the benefit of the Purchaser and any
Depositor to comply with the provisions of Sections 6.06 and 9.01(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 6.06,
in each case as and when required to be delivered.
ARTICLE V
PAYMENTS TO PURCHASER
Section 5.01. Remittances.
On each Remittance Date, the Company shall remit by wire transfer of
immediately available funds to the Purchaser (a) all amounts deposited in the
Custodial Account as of the close of business on the Determination Date (net of
charges against or withdrawals from the Custodial Account pursuant to Section
4.05), plus (b) all amounts, if any, which the Company is obligated to
distribute pursuant to Section 5.03, minus (c) any amounts attributable to
Principal Prepayments received after the applicable Principal Prepayment Period
which amounts shall be remitted on the following Remittance Date, together with
any additional interest required to be deposited in the Custodial Account in
connection with such Principal Prepayment in accordance with Section 4.04(viii);
and minus (d) any amounts attributable to Monthly Payments collected but due on
a Due Date or Dates subsequent to the first day of the month of the Remittance
Date, and minus (e) any amounts attributable to Buydown Funds being held in the
Custodial Account, which amounts shall be remitted on the Remittance Date next
succeeding the Due Period for such amounts.
With respect to any remittance received by the Purchaser after the
Business Day on which such payment was due, the Company shall pay to the
Purchaser interest on any such late payment at an annual rate equal to the Prime
Rate, adjusted as of the date of each change, plus three percentage points, but
in no event greater than the maximum amount permitted by applicable law. Such
interest shall be deposited in the Custodial Account by the Company on the date
such late payment is made and shall cover the period commencing with the day
following such Business Day and ending with the Business Day on which such
payment is made, both inclusive. Such interest shall be remitted along with the
distribution payable on the next succeeding Remittance Date. The payment by the
Company of any such interest shall not be deemed an extension of time for
payment or a waiver of any Event of Default by the Company.
Section 5.02. Statements to Purchaser.
Not later than the first (1st) Business Day of each month, the Company
shall furnish to the Purchaser, with respect to the preceding month, a monthly
collection report, a monthly paid in full report that summarizes Mortgage Loans
paid in full during the related Due Period and a
59
monthly trial balance report that provides a trial balance as of the last day of
the month preceding such Remittance Date in electronic format agreed upon by the
Company and the Purchaser.
Not later than the fifth (5th) Business Day of each month, the Company
shall furnish to the Purchaser in either written or electronic format, a
delinquency report and a monthly remittance advice containing the information
set forth in Exhibit G, attached hereto, each in a form mutually acceptable to
the Company and the Purchaser, as to the period ending on the last day of the
preceding month.
Section 5.03. Monthly Advances by Company.
No later than the close of business on the Determination Date, the
Company shall deposit in the Custodial Account from its own funds or from
amounts held for future distribution an amount equal to all Monthly Payments
(with interest adjusted to the Mortgage Loan Remittance Rate) which were due on
the Mortgage Loans during the applicable Due Period and which were delinquent at
the close of business on the immediately preceding Determination Date or which
were deferred pursuant to Section 4.01. Any amounts held for future distribution
and so used shall be replaced by the Company by deposit in the Custodial Account
on or before any future Remittance Date if funds in the Custodial Account on
such Remittance Date shall be less than payments to the Purchaser required to be
made on such Remittance Date. The Company's obligation to make such Monthly
Advances as to any Mortgage Loan will continue through the last Monthly Payment
due prior to the payment in full of the Mortgage Loan, or through the last
Remittance Date prior to the Remittance Date for the distribution of all
Liquidation Proceeds and other payments or recoveries (including REO Disposition
Proceeds, Insurance Proceeds and Condemnation Proceeds) with respect to the
Mortgage Loan; provided, however, that the Company shall not make Monthly
Advances or Servicing Advances if the Company determines, in its sole reasonable
opinion, that advances with respect to such Mortgage Loan are non-recoverable by
the Company from Liquidation Proceeds, REO Disposition Proceeds, Insurance
Proceeds, Condemnation Proceeds, or otherwise with respect to a particular
Mortgage Loan. In the event that the Company determines that any such advances
are non-recoverable, the Company shall provide the Purchaser with a certificate
signed by two officers of the Company evidencing such determination.
ARTICLE VI
GENERAL SERVICING PROCEDURES
Section 6.01. Transfers of Mortgaged Property.
The Company shall use its best efforts to enforce any "due-on-sale"
provision contained in any Mortgage or Mortgage Note and to deny assumption by
the person to whom the Mortgaged Property has been or is about to be sold
whether by absolute conveyance or by contract of sale, and whether or not the
Mortgagor remains liable on the Mortgage and the Mortgage Note. When the
Mortgaged Property has been conveyed by the Mortgagor, the Company shall, to the
extent it has knowledge of such conveyance, exercise its rights to accelerate
the maturity of such Mortgage Loan under the "due-on-sale" clause applicable
thereto, provided, however, that the Company shall not exercise such rights if
prohibited by law from
60
doing so or if the exercise of such rights would impair or threaten to impair
any recovery under the related PMI Policy, if any.
If the Company reasonably believes it is unable under applicable law to
enforce such "due-on-sale" clause, the Company shall enter into (i) an
assumption and modification agreement with the person to whom such property has
been conveyed, pursuant to which such person becomes liable under the Mortgage
Note and the original Mortgagor remains liable thereon or (ii) in the event the
Company is unable under applicable law to require that the original Mortgagor
remain liable under the Mortgage Note and the Company has the prior consent of
the primary mortgage guaranty insurer, a substitution of liability agreement
with the purchaser of the Mortgaged Property pursuant to which the original
Mortgagor is released from liability and the purchaser of the Mortgaged Property
is substituted as Mortgagor and becomes liable under the Mortgage Note. If an
assumption fee is collected by the Company for entering into an assumption
agreement the fee will be retained by the Company as additional servicing
compensation. In connection with any such assumption, neither the Mortgage
Interest Rate borne by the related Mortgage Note, the term of the Mortgage Loan,
the outstanding principal amount of the Mortgage Loan nor any other material
terms shall be changed without Purchaser's consent.
To the extent that any Mortgage Loan is assumable, the Company shall
inquire diligently into the credit worthiness of the proposed transferee, and
shall use the underwriting criteria for approving the credit of the proposed
transferee which are used with respect to underwriting mortgage loans of the
same type as the Mortgage Loan. If the credit worthiness of the proposed
transferee does not meet such underwriting criteria, the Company diligently
shall, to the extent permitted by the Mortgage or the Mortgage Note and by
applicable law, accelerate the maturity of the Mortgage Loan.
Section 6.02. Satisfaction of Mortgages and Release of Retained Mortgage
Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the
Company of a notification that payment in full will be escrowed in a manner
customary for such purposes, the Company shall notify the Purchaser in the
monthly remittance advice as provided in Section 5.02, and may request the
release of any Mortgage Loan Documents.
If the Company satisfies or releases 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 two (2) Business Days of receipt of such demand
by the Purchaser. The Company shall maintain the Fidelity Bond and Errors and
Omissions Insurance Policy as provided for in Section 4.12 insuring the Company
against any loss it may sustain with respect to any Mortgage Loan not satisfied
in accordance with the procedures set forth herein.
61
Section 6.03. Servicing Compensation.
As compensation for its services hereunder, the Company shall be
entitled to withdraw from the Custodial Account the amount of its Servicing Fee.
The Servicing Fee shall be payable monthly and shall be computed on the basis of
the same 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. Notwithstanding the foregoing, with
respect to the payment of the Servicing Fee for any month, the aggregate
Servicing Fee shall be reduced (but not below zero) by an amount equal to the
Prepayment Interest Shortfall for such Remittance Date relating to the Mortgage
Loans.
Additional servicing compensation in the form of assumption fees, to the
extent provided in Section 6.01, and late payment charges shall be retained by
the Company to the extent not required to be deposited in the Custodial Account.
The Company shall be required to pay all expenses incurred by it in connection
with its servicing activities hereunder and shall not be entitled to
reimbursement thereof except as specifically provided for herein.
Section 6.04. Annual Statement as to Compliance.
(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 6.05. Annual Independent Public Accountants' Servicing Report.
Except with respect to a Securitization Transaction 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
62
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, the Company shall be considered to have
fulfilled its obligations under this Section 6.05. Notwithstanding the
foregoing, in connection with the final rules promulgated by the Securities and
Exchange Commission related to asset-backed securities (Release Nos. 33-8518;
34-50905) (as such rules may be amended or modified from time to time, the "ABS
Rules"), the Company shall cooperate with the Purchaser in providing such other
statements and reports as are required by and in conformance with the ABS Rules.
Section 6.06 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:
(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 H hereto delivered to the Purchaser at the time of any
Securitization Transaction;
(ii) deliver to the Purchaser and any Depositor a report of a
registered public accounting firm reasonably acceptable to the
Purchaser and such Depositor that attests to, and reports on,
the assessment of compliance made by the Company and delivered
pursuant to the preceding paragraph. Such attestation shall be
in accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation
S-X under the Securities Act and the Exchange Act;
(iii) cause each Subservicer and each Subcontractor, determined by the
Company pursuant to Section 4.29(b) to be "participating in the
servicing function" within the meaning of Item 1122 of
Regulation AB, to deliver to the Purchaser and any Depositor an
assessment of compliance and accountants' attestation as and
when provided in paragraphs (i) and (ii) of this Section 6.06;
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
63
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 I.
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 6.06(i) shall address each of the Servicing Criteria specified
substantially in the form of Exhibit H 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 6.06(iii) need not address any elements of the Servicing Criteria other
than those specified by the Company pursuant to Section 4.29.
Section 6.07 Remedies.
(i) Any failure by the Company, any Subservicer, any Subcontractor
or any Third-Party Originator to deliver any information, report, certification,
accountants' letter or other material when and as required under Article IX,
Section 4.29, Section 6.04, Section 6.05 or Section 6.06, or any breach by the
Company of a representation or warranty set forth in Section 9.01(e)(vi)(A), or
in a writing furnished pursuant to Section 9.01(e)(vi)(B) and made as of a date
prior to the closing date of the related Securitization Transaction, to the
extent that such breach is not cured by such closing date, or any breach by the
Company of a representation or warranty in a writing furnished pursuant to
Section 9.01(e)(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.
(ii) Any failure by the Company, any Subservicer or any Subcontractor
to deliver any information, report, certification or accountants' letter when
and as required under Section 6.04, Section 6.05 or Section 6.06, 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
64
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 6.08 Right to Examine Company Records.
The Purchaser, or its designee, shall have the right to examine and
audit any and all of the books, records, or other information of the Company,
whether held by the Company or by another on its behalf, with respect to or
concerning this Agreement or the Mortgage Loans, during business hours or at
such other times as may be reasonable under applicable circumstances, upon
reasonable advance notice. The Purchaser shall pay its own travel expenses
associated with such examination.
Section 6.09 Compliance with REMIC Provisions.
If a REMIC election has been made with respect to the arrangement under
which the Mortgage Loans and REO Property are held, the Company shall not take
any action, cause the REMIC to take any action or fail to take (or fail to cause
to be taken) any action that, under the REMIC Provisions, if taken or not taken,
as the case may be, could (i) endanger the status of the REMIC as a REMIC or
(ii) result in the imposition of a tax upon the REMIC (including but not limited
to the tax on "prohibited transactions" as defined in Section 860F(a) (2) of the
Code and the tax on "contributions" to a REMIC set forth in Section 860G(d) of
the Code) unless the Company has received an Opinion of Counsel (at the expense
of the party seeking to take such action) to the effect that the contemplated
action will not endanger such REMIC status or result in the imposition of any
such tax.
ARTICLE VII
COMPANY TO COOPERATE
Section 7.01. Provision of Information.
During the term of this Agreement, the Company shall furnish to the
Purchaser such periodic, special, or other reports or information, and copies or
originals of any documents contained in the Servicing File for each Mortgage
Loan provided for herein. All other special
65
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. In addition, during
the term of this Agreement, the Company shall provide to the OCC and to
comparable regulatory authorities supervising the Purchaser or any of
Purchaser's assigns (including beneficial owners of securities issued in
Securitization Transactions backed by the Mortgage Loans) and the examiners and
supervisory agents of the OCC and such other authorities, access to the
documentation required by applicable regulations of the OCC and such other
authorities with respect to the Mortgage Loans. Such access shall be afforded
without charge, but only upon reasonable and prior written request and during
normal business hours at the offices designated by the Company.
The Company shall execute and deliver all such instruments and take all
such action as the Purchaser may reasonably request from time to time, in order
to effectuate the purposes and to carry out the terms of this Agreement.
Section 7.02. Financial Statements; Servicing Facility.
In connection with marketing the Mortgage Loans, the Purchaser may make
available to a prospective Purchaser a Consolidated Statement of Operations of
the Company for the most recently completed two (2) fiscal years for which such
a statement is available, as well as a Consolidated Statement of Condition at
the end of the last two (2) fiscal years covered by such Consolidated Statement
of Operations. The Company 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).
The Company also shall make available to the Purchaser or prospective
purchasers a knowledgeable financial or accounting officer for the purpose of
answering questions respecting recent developments affecting the Company or the
financial statements of the Company, and to permit the Purchaser or any
prospective purchaser to inspect the Company's servicing facilities for the
purpose of satisfying the Purchaser or any prospective purchaser that the
Company has the ability to service the Mortgage Loans as provided in this
Agreement.
ARTICLE VIII
THE COMPANY
Section 8.01. Indemnification; Third Party Claims.
The Company shall indemnify the Purchaser (an "Indemnified Party") and
hold them harmless against any and all claims, losses, damages, penalties,
fines, forfeitures, reasonable and necessary legal fees and related costs,
judgments, and any other costs, fees and expenses that the Indemnified Party 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
66
respect to this Agreement or the Mortgage Loans, assume (with the prior written
consent of the Purchaser) the defense of any such claim and pay all expenses in
connection therewith, including counsel fees, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or the Purchaser
in respect of such claim. The Company shall follow any written instructions
received from the Purchaser in connection with such claim. The Purchaser
promptly shall reimburse the Company for all amounts advanced by it pursuant to
the preceding sentence except when the claim is in any way related to the
Company's indemnification pursuant to Section 3.03, or the failure of the
Company to service and administer the Mortgage Loans in strict compliance with
the terms of this Agreement.
Section 8.02. Merger or Consolidation of the Company.
The Company shall keep in full effect its existence, rights and
franchises and shall obtain and preserve its qualification to do business in
each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Agreement or any of the Mortgage
Loans and to perform its duties under this Agreement.
Any person into which the Company may be merged or consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Company shall be a party, or any Person succeeding to the business of the
Company, shall be the successor of the Company hereunder, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding, provided, however, that
the successor or surviving Person shall be an institution (i) having a GAAP net
worth of not less than $15,000,000 and (ii) which is a Xxxxxx Xxx/Xxxxxxx
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.
Section 8.03. Limitation on Liability of Company and Others.
Neither the Company nor any of the directors, officers, employees or
agents of the Company shall be under any liability to the Purchaser for any
action taken or for refraining from the taking of any action in good faith
pursuant to this Agreement, or for errors in judgment, provided, however, that
this provision shall not protect the Company or any such person against any
breach of warranties or representations made herein, or failure to perform its
obligations in strict compliance with any standard of care set forth in this
Agreement or any other liability which would otherwise be imposed under this
Agreement. The Company and any director, officer, employee or agent of the
Company may rely in good faith on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising hereunder.
The Company shall not be under any obligation to appear in, prosecute or defend
any legal action which is not incidental to its duties to service the Mortgage
Loans in accordance with this Agreement and which in its opinion may involve it
in any expense or liability, provided, however, that the Company may, with the
consent of the Purchaser, undertake any such action which it may deem necessary
or desirable in respect to this Agreement and the rights and duties of the
parties hereto. In such event, the Company shall be entitled to reimbursement
from the Purchaser of the reasonable legal expenses and costs of such action,
unless any such
67
costs result from a breach of the Company's representations and warranties made
herein or its failure to perform its obligations in strict compliance with this
Agreement.
Section 8.04. Limitation on Resignation and Assignment by Company.
The Purchaser has entered into this Agreement with the Company and
subsequent purchasers will purchase the Mortgage Loans in reliance upon the
independent status of the Company, and the representations as to the adequacy of
its servicing facilities, personnel, records and procedures, its integrity,
reputation and financial standing, and the continuance thereof. Therefore, the
Company shall neither assign this Agreement or the servicing rights hereunder or
delegate its rights or duties hereunder (other than pursuant to Section 4.01) or
any portion hereof or sell or otherwise dispose of all of its property or assets
without the prior written consent of the Purchaser, which consent shall not be
unreasonably withheld.
The Company shall not resign from the obligations and duties hereby
imposed on it except by mutual consent of the Company and the Purchaser or upon
the determination that its duties hereunder are no longer permissible under
applicable law and such incapacity cannot be cured by the Company. Any such
determination permitting the resignation of the Company shall be evidenced by an
Opinion of Counsel to such effect delivered to the Purchaser which Opinion of
Counsel shall be in form and substance acceptable to the Purchaser. No such
resignation shall become effective until a successor shall have assumed the
Company's responsibilities and obligations hereunder in the manner provided in
Section 12.01.
Without in any way limiting the generality of this Section 8.04, in the
event that the Company either shall assign this Agreement or the servicing
responsibilities hereunder or delegate its rights or duties hereunder (other
than pursuant to Section 4.01) or any portion hereof or sell or otherwise
dispose of all or substantially all of its property or assets, without the prior
written consent of the Purchaser, then the Purchaser shall have the right to
terminate this Agreement upon notice given as set forth in Section 10.01,
without any payment of any penalty or damages and without any liability
whatsoever to the Company or any third party.
ARTICLE IX
REMOVAL OF MORTGAGE LOANS FROM AGREEMENT
Section 9.01. Removal of Mortgage Loans from Inclusion Under this Agreement.
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." In the event that any Mortgage Loan
transferred pursuant to this Section 9.01 is rejected by the transferee, the
Company shall continue to service such rejected Mortgage Loan on behalf of the
Purchaser in accordance with the terms and provisions of this Agreement.
The Company shall cooperate with the Purchaser in connection with each
Whole Loan Transfer, Agency Transfer or Securitization Transaction in accordance
with this Section 9.01; provided that no such Whole Loan Transfer, Agency
Transfer or Securitization Transaction shall
68
create a greater obligation or cost on the part of the Company than otherwise
set forth in this Agreement. In connection therewith:
(a) the Company shall make all representations and warranties with
respect to the Mortgage Loans as of the Closing Date and with respect to the
Company itself as of the closing date of each Whole Loan Transfer, Agency
Transfer or Securitization Transaction;
(b) the Company shall negotiate in good faith and execute any
seller/servicer agreements required by the shelf registrant to effectuate the
foregoing;
(c) the Company shall make representations and warranties (1) that
the Company has serviced the Mortgage Loans in accordance with the terms of this
Agreement, provided accurate statements to the Purchaser pursuant to Section
5.02 of this Agreement, and otherwise complied with all covenants and
obligations hereunder and, (2) that the Company has taken no action nor omitted
to take any required action the omission of which would have the effect of
impairing any mortgage insurance or guarantee on the Mortgage Loans;
(d) the Company shall provide as applicable:
(i) any and all information and appropriate verification of
information which may be reasonably available to the
Company, including the Company's foreclosure,
delinquency experience and the Company's underwriting
standards, whether through letters of its auditors and
counsel or otherwise, as the Purchaser shall request;
(ii) such additional representations, warranties, covenants,
opinions of counsel, letters from auditors, and
certificates of public officials or officers of the
Company as are reasonably believed necessary by the
trustee, any rating agency or 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 the Company's counsel to
review such seller/servicer agreements. Under this
Agreement, the Company shall retain a Servicing Fee for
each Mortgage Loan at a Servicing Fee Rate;
(iii) at any time as required by any Rating Agency, such
additional documents from the related Retained Mortgage
File to the Custodian as may be required by such Rating
Agency.
(e) 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)
69
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).
(i) If so requested by the Purchaser or any Depositor, the
Company shall provide such information regarding (1) the
Company, as originator of the Mortgage Loans (including
as an acquirer of Mortgage Loans from a Qualified
Correspondent), or (2) each Third-Party Originator, and
(3) as applicable, each Subservicer, as is requested for
the purpose of compliance with Items 1103(a)(1), 1105,
1110, 1117 and 1119 of Regulation AB. Such information
shall include, at a minimum:
(A) the originator's form of organization;
(B) a description of the originator's origination
program and how long the originator has been
engaged in originating residential mortgage
loans, which description shall include a
discussion of the originator's experience in
originating mortgage loans of a similar type as
the Mortgage Loans; information regarding the
size and composition of the originator's
origination portfolio; and information that may
be material, in the good faith judgment of the
Purchaser or any Depositor, to an analysis of
the performance of the Mortgage Loans, including
the originators' credit-granting or underwriting
criteria for mortgage loans of similar type(s)
as the Mortgage Loans and such other information
as the Purchaser or any Depositor may reasonably
request for the purpose of compliance with Item
1110(b)(2) of Regulation AB;
(C) a description of any material legal or
governmental proceedings pending (or known to be
contemplated) against the Company, each
Third-Party Originator and each Subservicer; and
(D) a description of any affiliation or relationship
between the Company, each Third-Party
Originator, each Subservicer and any of the
following parties to a Securitization
Transaction, as such parties are identified to
the Company by the Purchaser or any Depositor in
writing in advance of a Securitization
Transaction:
(1) the sponsor;
(2) the depositor;
(3) the issuing entity;
(4) any servicer;
(5) any trustee;
(6) any originator;
(7) any significant obligor;
70
(8) any enhancement or support provider; and
(9) any other material transaction party.
(ii) If so requested by the Purchaser or any Depositor, the
Company shall provide (or, as applicable, cause each
Third-Party Originator to provide) Static Pool
Information with respect to the mortgage loans (of a
similar type as the Mortgage Loans, as reasonably
identified by the Purchaser as provided below)
originated by (1) the Company, if the Company is an
originator of Mortgage Loans (including as an acquirer
of Mortgage Loans from a Qualified Correspondent),
and/or (2) each Third-Party Originator. Such Static Pool
Information shall be prepared by the Company (or
Third-Party Originator) on the basis of its reasonable,
good faith interpretation of the requirements of Item
1105(a)(1)-(3) of Regulation AB. To the extent that
there is reasonably available to the Company (or
Third-Party Originator) Static Pool Information with
respect to more than one mortgage loan type, the
Purchaser or any Depositor shall be entitled to specify
whether some or all of such information shall be
provided pursuant to this paragraph. The content of such
Static Pool Information may be in the form customarily
provided by the Company, and need not be customized for
the Purchaser or any Depositor. Such Static Pool
Information for each vintage origination year or prior
securitized pool, as applicable, shall be presented in
increments no less frequently than quarterly over the
life of the mortgage loans included in the vintage
origination year or prior securitized pool. The most
recent periodic increment must be as of a date no later
than 135 days prior to the date of the prospectus or
other offering document in which the Static Pool
Information is to be included or incorporated by
reference. The Static Pool Information shall be provided
in an electronic format that provides a permanent record
of the information provided, such as a portable document
format (pdf) file, or other such electronic format
reasonably required by the Purchaser or the Depositor,
as applicable.
Promptly following notice or discovery of a material
error in Static Pool Information provided pursuant to
the immediately preceding paragraph (including an
omission to include therein information required to be
provided pursuant to such paragraph), the Company shall
provide corrected Static Pool Information to the
Purchaser or any Depositor, as applicable, in the same
format in which Static Pool Information was previously
provided to such party by the Company.
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,
71
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.
(iii) If so requested by the Purchaser or any Depositor, the
Company shall provide such information regarding the
Company, as servicer of the Mortgage Loans, and each
Subservicer (each of the Company and each Subservicer,
for purposes of this paragraph, a "Servicer"), as is
requested for the purpose of compliance with Items 1108
of Regulation AB. Such information shall include, at a
minimum:
(A) the Servicer's form of organization;
(B) a description of how long the Servicer has been
servicing residential mortgage loans; a general
discussion of the Servicer's experience in
servicing assets of any type as well as a more
detailed discussion of the Servicer's experience
in, and procedures for, the servicing function
it will perform under this Agreement and any
Reconstitution Agreements; information regarding
the size, composition and growth of the
Servicer's portfolio of residential mortgage
loans of a type similar to the Mortgage Loans
and information on factors related to the
Servicer that may be material, in the good faith
judgment of the Purchaser or any Depositor, to
any analysis of the servicing of the Mortgage
Loans or the related asset-backed securities, as
applicable, including, without limitation:
(1) whether any prior securitizations of
mortgage loans of a type similar to the
Mortgage Loans involving the Servicer
have defaulted or experienced an early
amortization or other performance
triggering event because of servicing
during the three-year period immediately
preceding the related Securitization
Transaction;
(2) the extent of outsourcing the Servicer
utilizes;
72
(3) whether there has been previous
disclosure of material noncompliance
with the applicable Servicing Criteria
with respect to other securitizations of
residential mortgage loans involving the
Servicer as a servicer during the
three-year period immediately preceding
the related Securitization Transaction;
(4) whether the Servicer has been terminated
as servicer in a residential mortgage
loan securitization, either due to a
servicing default or to application of a
servicing performance test or trigger;
and
(5) such other information as the Purchaser
or any Depositor may reasonably request
for the purpose of compliance with Item
1108(b)(2) of Regulation AB;
(C) a description of any material changes during the
three-year period immediately preceding the
related Securitization Transaction to the
Servicer's policies or procedures with respect
to the servicing function it will perform under
this Agreement and any Reconstitution Agreements
for mortgage loans of a type similar to the
Mortgage Loans;
(D) information regarding the Servicer's financial
condition, to the extent that there is a
material risk that an adverse financial event or
circumstance involving the Servicer could have a
material adverse effect on the performance by
the Company of its servicing obligations under
this Agreement or any Reconstitution Agreement;
(E) information regarding advances made by the
Servicer on the Mortgage Loans and the
Servicer's overall servicing portfolio of
residential mortgage loans for the three-year
period immediately preceding the related
Securitization Transaction, which may be limited
to a statement by an authorized officer of the
Servicer to the effect that the Servicer has
made all advances required to be made on
residential mortgage loans serviced by it during
such period, or, if such statement would not be
accurate, information regarding the percentage
and type of advances not made as required, and
the reasons for such failure to advance;
(F) a description of the Servicer's processes and
procedures designed to address any special or
unique factors involved in servicing loans of a
similar type as the Mortgage Loans;
73
(G) a description of the Servicer's processes for
handling delinquencies, losses, bankruptcies and
recoveries, such as through liquidation of
mortgaged properties, sale of defaulted mortgage
loans or workouts; and
(H) information as to how the Servicer defines or
determines delinquencies and charge-offs,
including the effect of any grace period,
re-aging, restructuring, partial payments
considered current or other practices with
respect to delinquency and loss experience.
(iv) If so requested by the Purchaser or any Depositor for
the purpose of satisfying 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 9.01(e)(i)(D) (and any
other parties identified in writing by the requesting
party) with respect to such Securitization Transaction,
and (2) provide to the Purchaser and any Depositor a
description of such proceedings, affiliations or
relationships.
(v) As a condition to the succession to the Company or any
Subservicer as servicer or Subservicer under this
Agreement or any Reconstitution Agreement by any Person
(i) into which the Company or such Subservicer may be
merged or consolidated, or (ii) which may be appointed
as a successor to the Company or any Subservicer, the
Company shall provide to the Purchaser and any
Depositor, at least fifteen (15) calendar days prior to
the effective date of such succession or appointment,
(x) written notice to the Purchaser and any Depositor of
such succession or appointment and (y) in writing and in
form and substance reasonably satisfactory to the
Purchaser and such Depositor, all information reasonably
requested by the Purchaser or any Depositor in order to
comply with is reporting obligation under Item 6.02 of
Form 8-K with respect to any class of asset-backed
securities.
(vi) (A) The Company shall be deemed to represent to the
Purchaser and to any Depositor, as of the date on which
information is first provided to the Purchaser under
this Section 9.01(e) 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
74
loan securitization, either due to a servicing default
or to application of a servicing performance test or
trigger; (3) no material noncompliance with the
applicable Servicing Criteria with respect to other
securitizations of residential mortgage loans involving
the Company as servicer has been disclosed or reported
by the Company; (4) no material changes to the Company's
policies or procedures with respect to the servicing
function it will perform under this Agreement and any
Reconstitution Agreement for mortgage loans of a type
similar to the Mortgage Loans have occurred during the
three-year period immediately preceding the related
Securitization Transaction; (5) there are no aspects of
the Company's financial condition that could have a
material adverse effect on the performance by the
Company of its servicing obligations under this
Agreement or any Reconstitution Agreement; (6) there are
no material legal or governmental proceedings pending
(or known to be contemplated) against the Company, any
Subservicer or any Third-Party Originator; and (7) there
are no affiliations, relationships or transactions
relating to the Company, any Subservicer or any
Third-Party Originator with respect to any
Securitization Transaction and any party thereto
identified by the related Depositor of a type described
in Item 1119 of Regulation AB.
(B) If so requested by the Purchaser or any
Depositor on any date following the date on which
information is first provided to the Purchaser or any
Depositor under this Section 9.01(e), the Company shall,
within five (5) Business Days following such request,
confirm in writing the accuracy of the representations
and warranties set forth in sub clause (A) above or, if
any such representation and warranty is not accurate as
of the date of such request, provide reasonably adequate
disclosure of the pertinent facts, in writing, to the
requesting party.
(vii) In addition to such information as the Company, as
servicer, is obligated to provide pursuant to other
provisions of this Agreement, if so requested by the
Purchaser or any Depositor, the Company shall provide
such information 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.
(f) 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 Xxxxxxx 00
00
xx xxx Xxxxxxxx Xxx); 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:
(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 4.29, 6.04(ii), 6.06,
9.01(d) and (e) by or on behalf of the Company, or
provided under Sections 4.29, 6.04(ii), 6.06, 9.01(d)
and (e) by or on behalf of any Subservicer,
Subcontractor or Third-Party Originator (collectively,
the "Company Information"), or (B) the omission or
alleged omission to state in the Company Information a
material fact required to be stated in the Company
Information or necessary in order to make the statements
therein, in the light of the circumstances under which
they were made, not misleading; provided, by way of
clarification, that clause (B) of this paragraph shall
be construed solely by reference to the Company
Information and not to any other information
communicated in connection with a sale or purchase of
securities, without regard to whether the Company
Information or any portion thereof is presented together
with or separately from such other information;
(ii) any failure by the Company, any Subservicer, any
Subcontractor or any Third-Party Originator to deliver
any information, report, certification, accountants'
letter or other material when and as required under
Sections 4.29, 6.04(ii), 6.06, 9.01(d) and (e),
including any failure by the Company to identify any
Subcontractor "participating in the servicing function"
within the meaning of Item 1122 of Regulation AB; or
(iii) any breach by the Company of a representation or
warranty set forth in Section 9.01(e)(vi)(A) or in a
writing furnished pursuant to Section 9.01(e)(vi)(B) and
made as of a date prior to the closing date of the
related Securitization Transaction, to the extent that
such breach is not cured by such closing date, or any
breach by the Company of a representation or warranty in
a writing furnished pursuant to Section 9.01(e)(vi)(B)
to the extent made as of a date subsequent to such
closing date.
In the case of any failure of performance described in
sub-clause (ii) of this Section 9.01(f), 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
76
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.
(g) 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:
(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 computational
materials, 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.
(h) the Company shall cooperate with the Purchaser in servicing the
Mortgage Loans in accordance with the usual and customary requirements
of any credit enhancement, risk management and other service providers
and shall otherwise cooperate with the Purchaser in connection with such
third party service providers and the provision of third party services
relating to a Securitization Transaction; provided, however, that such
requirements are reasonably acceptable to the Company and pose no
greater risk, obligation or expense to the Company than otherwise set
forth in this Agreement. Any additional costs and/or expenses will be
paid by the requesting party;
(i) 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, or in connection with any
additional Xxxxxxxx-Xxxxx Certification required to be filed upon thirty
(30) days written request, an officer of the Seller shall execute and
deliver an Officer's Certificate substantially in the form attached
hereto as Exhibit J, to the Purchaser, any master servicer or any
depositor for the benefit of each such entity and such
77
entity's affiliates and the officers, directors and agents of such
entity and such entity's affiliates, and shall indemnify any such entity
or persons arising out of any breach of Seller's obligations relating
thereto as provided in such Officer's Certificate.
The Purchaser and the Company acknowledge and agree that the purpose of
Section 9.01(e) 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.
In the event the Purchaser has elected to have the Company hold record
title to the Mortgages, prior to the Reconstitution Date the Company shall
prepare an Assignment of Mortgage in blank for each Mortgage Loan that is a part
of a Whole Loan Transfer or Agency Transfer or prepare an Assignment of Mortgage
in blank or to the trustee from the Company acceptable to the trustee for each
Mortgage Loan that is part of a Securitization Transaction. The Purchaser shall
pay all preparation and recording costs associated therewith if the Assignments
of Mortgage have been previously prepared and recorded in Purchaser's name. 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. If required at any time
by a rating agency, Purchaser or successor purchaser in connection with any
Whole Loan Transfer, Agency Transfer or Securitization Transaction, the Company
shall deliver such additional document from its Retained Mortgage File within
ten (10) days to the Custodian, successor purchaser or other designee of the
Purchaser as said rating agency, Purchaser or successor purchaser may require.
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 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.
78
ARTICLE X
DEFAULT
Section 10.01. Events of Default.
Each of the following shall constitute an Event of Default on the part
of the Company:
(i) any failure by the Company to remit to the Purchaser any
payment required to be made under the terms of this
Agreement which continues unremedied for a period of one
Business Day 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 or in the Custody Agreement which continues
unremedied for a period of thirty days after the date on
which written notice of such failure, requiring the same
to be remedied, shall have been given to the Company by
the Purchaser or by the Custodian; or
(iii) failure by the Company to maintain its license to do
business in any jurisdiction where the Mortgaged
Property is located if such license is required; or
(iv) a decree or order of a court or agency or supervisory
authority having jurisdiction for the appointment of a
conservator or receiver or liquidator in any insolvency,
readjustment of debt, including bankruptcy, marshaling
of assets and liabilities or similar proceedings, or for
the winding-up or liquidation of its affairs, shall have
been entered against the Company and such decree or
order shall have remained in force undischarged or
unstayed for a period of 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 Business Days; or
(vii) the Company ceases to meet the qualifications of a
Xxxxxx Xxx/Xxxxxxx Mac servicer; or
79
(viii) the Company attempts to assign its right to servicing
compensation hereunder or to assign this Agreement or
the servicing responsibilities hereunder or to delegate
its duties hereunder or any portion thereof in violation
of Section 8.04.
If the Company obtains knowledge of an Event of Default, the Company
shall promptly notify the Purchaser. In each and every such case, so long as an
Event of Default shall not have been remedied, in addition to whatever rights
the Purchaser may have at law or equity to damages, including injunctive relief
and specific performance, the Purchaser, by notice in writing to the Company,
may terminate all the rights and obligations of the Company under this Agreement
and in and to the Mortgage Loans and the proceeds thereof.
Upon receipt by the Company of such written notice, all authority and
power of the Company under this Agreement, whether with respect to the Mortgage
Loans or otherwise, shall pass to and be vested in the successor appointed
pursuant to Section 12.01. Upon written request from any Purchaser, the Company
shall prepare, execute and deliver to the successor entity designated by the
Purchaser any and all documents and other instruments, place in such successor's
possession all Retained Mortgage Files, and do or cause to be done all other
acts or things necessary or appropriate to effect the purposes of such notice of
termination, including but not limited to the transfer and endorsement or
assignment of the Mortgage Loans and related documents, all 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.
Section 10.02. Waiver of Defaults.
By a written notice, the Purchaser may waive any default by the Company
in the performance of its obligations hereunder and its consequences. Upon any
waiver of a past default, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any subsequent or
other default or impair any right consequent thereon except to the extent
expressly so waived.
ARTICLE XI
TERMINATION
Section 11.01. Termination.
This Agreement shall terminate upon either: (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; or (ii) mutual
consent of the Company and the Purchaser in writing. The representations and
warranties and indemnification provisions contained herein shall survive the
termination of this Agreement.
80
Upon written request from the Purchaser in connection with any such
termination, the Company shall prepare, execute and deliver, any and all
documents and other instruments, place in the Purchaser's possession all
Retained Mortgage Files, and do or accomplish all other acts or things necessary
or appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise, at the Company's sole expense. The Company
agrees to cooperate with the Purchaser and such successor in effecting the
termination of the Company's responsibilities and rights hereunder as servicer,
including, without limitation, the transfer to such successor for administration
by it of all cash amounts which shall at the time be credited by the Company to
the Custodial Account or Subsidy Account or Escrow Account or thereafter
received with respect to the Mortgage Loans.
Section 11.02. Termination Without Cause.
The Purchaser may terminate, at its sole option, any rights the Company
may have hereunder, without cause as provided in this Section 11.02. Any such
notice of termination shall be in writing and delivered to the Company by
registered mail as provided in Section 12.05.
The Company shall be entitled to receive, as liquidated damages, upon
the transfer of the servicing rights, an amount equal to 2.25% of the aggregate
outstanding principal amount of the transferred Mortgage Loans as of the
termination date.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01. Successor to Company.
Prior to termination of the Company's responsibilities and duties under
this Agreement pursuant to Sections 8.04, 10.01, 11.01 (ii) or pursuant to
Section 11.02 the Purchaser shall, (i) succeed to and assume all of the
Company's responsibilities, rights, duties and obligations under this Agreement,
or (ii) appoint a successor having the characteristics set forth in Section 8.02
and which shall succeed to all rights and assume all of the responsibilities,
duties and liabilities of the Company under this Agreement prior to the
termination of Company's responsibilities, duties and liabilities under this
Agreement. In connection with such appointment and assumption, the Purchaser may
make such arrangements for the compensation of such successor out of payments on
Mortgage Loans as it and such successor shall agree. In the event that the
Company's duties, responsibilities and liabilities under this Agreement should
be terminated pursuant to the aforementioned sections, the Company shall
discharge such duties and responsibilities during the period from the date it
acquires knowledge of such termination until the effective date thereof with the
same degree of diligence and prudence which it is obligated to exercise under
this Agreement, and shall take no action whatsoever that might impair or
prejudice the rights or financial condition of its successor. The resignation or
removal of the Company pursuant to the aforementioned sections shall not become
effective until a successor shall be appointed pursuant to this Section 12.01
and shall in no event relieve the Company of the representations and warranties
made pursuant to Sections 3.01 and 3.02 and the remedies available to the
Purchaser under Section 3.03, it being understood and agreed that the provisions
of such Sections 3.01,
81
3.02, 3.03 and 8.01 shall be applicable to the Company notwithstanding any such
sale, assignment, resignation or termination of the Company, or the termination
of this Agreement.
Any successor appointed as provided herein shall execute, acknowledge
and deliver to the Company and to the Purchaser an instrument accepting such
appointment, wherein the successor shall make the representations and warranties
set forth in Section 3.01, except for subsection (h) with respect to the sale of
the Mortgage Loans and subsections (i) and (k) thereof, whereupon such successor
shall become fully vested with all the rights, powers, duties, responsibilities,
obligations and liabilities of the Company, with like effect as if originally
named as a party to this Agreement. Any termination or resignation of the
Company or termination of this Agreement pursuant to Sections 8.04, 10.01, 11.01
or 11.02 shall not affect any claims that any Purchaser may have against the
Company arising out of the Company's actions or failure to act prior to any such
termination or resignation.
The Company shall deliver promptly to the successor servicer the funds
in the Custodial Account, Subsidy Account and Escrow Account and all Retained
Mortgage Files and related documents and statements held by it hereunder and the
Company shall account for all funds and shall execute and deliver such
instruments and do such other things as may reasonably be required to more fully
and definitively vest in the successor all such rights, powers, duties,
responsibilities, obligations and liabilities of the Company.
If the Company is terminated pursuant to Sections 8.04 and 10.01, the
Purchaser shall be entitled to be reimbursed from the Company for all costs
associated with the transfer of servicing, including, without limitation, any
costs or expenses associated with the complete transfer of all servicing data
and the completion, correction or manipulation of such servicing data as may be
required by the Purchaser to correct any errors or insufficiencies in the
servicing data or otherwise to enable the Purchaser to service the Mortgage
Loans properly and effectively.
Upon a successor's acceptance of appointment as such, the Company shall
notify by mail the Purchaser of such appointment in accordance with the
procedures set forth in Section 12.05.
Section 12.02. Amendment.
This Agreement may be amended from time to time by written agreement
signed by the Company and the Purchaser.
Section 12.03. Governing Law.
This Agreement shall be construed in accordance with the laws of the
State of New York and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws.
Each of the Company and the Purchaser hereby knowingly, voluntarily and
intentionally waives any and all rights it may have to a trial by jury in
respect of 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.
82
Section 12.04. Arbitration.
In the event a claim or controversy arises concerning the interpretation
or enforcement of the terms of this Agreement, the Purchaser and the Company
agree that such claim or controversy may be settled by final, binding
arbitration if the Purchaser and the Company, as applicable, consent to such
arbitration at the time such claim or controversy arises which consent may be
withheld by the Purchaser or the Company in each party's sole discretion.
Section 12.05. 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 12.06. Notices.
All demands, notices and communications hereunder shall be in writing
and shall be deemed to have been duly given if personally delivered at or mailed
by registered mail, postage prepaid, addressed as follows:
(i) if to the Company with respect to servicing issues:
Xxxxx Fargo Bank, N.A.
1 Home Campus
Xxx Xxxxxx, Xxxx 00000-0000
Attention: Xxxx X. Xxxxx, MAC X2401-042
Fax: 515/000-0000
if to the Company with respect to all other issues:
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxxx Xxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Structured Finance Manager, MAC X3906-012
Fax: (000)000-0000
In each instance with a copy to:
Xxxxx Fargo Bank, N.A.
1 Home Campus
Xxx Xxxxxx, Xxxx 00000-0000
Attention: General Counsel MAC X2401-06T
or such other address as may hereafter be furnished to the Purchaser in
writing by the Company;
(ii) if to Purchaser:
83
Bank of America, National Association
Hearst Tower
NC1-027-21-04
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Managing Director
Telephone: (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 12.07. 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 12.08. Relationship of Parties.
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 12.09. Execution; Successors and Assigns.
This Agreement may be executed in one or more counterparts and by the
different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together, shall
constitute one and the same agreement. Subject to Section 8.04, this Agreement
shall inure to the benefit of and be binding upon the Company and the Purchaser
and their respective successors and assigns.
Section 12.10. Recordation of Assignments of Mortgage.
To the extent permitted by applicable law, each of the Assignments of
Mortgage is subject to recordation in all appropriate public offices for real
property records in all the counties or other comparable jurisdictions in which
any or all of the Mortgaged Properties are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected at the Company's expense in the event recordation is either necessary
under applicable law or requested by the Purchaser at its sole option.
84
Section 12.11. Assignment by Purchaser.
The Purchaser shall have the right, without the consent of the Company
to assign, in whole or in part, its interest under this Agreement with respect
to some or all of the Mortgage Loans, and designate any person to exercise any
rights of the Purchaser hereunder, by executing an Assignment, Assumption and
Recognition Agreement, 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. In the event the Purchaser assigns this Agreement, and the
assignee assumes any and all of the Purchaser's obligations hereunder, the
Company acknowledges and agrees to look solely to such assignee, and not the
Purchaser, for performance of the obligations so assumed and the Purchaser shall
be relieved from any liability to the Company with respect thereto.
Section 12.12. Solicitation of Mortgagor.
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 which are
directed to the general public at large, including, without limitation, mass
mailings based upon commercially acquired mailing lists, newspaper, radio,
television advertisements nor (ii) serving the refinancing needs of a Mortgagor
who, without solicitation, contacts either party in connection with the
refinance of such Mortgage or Mortgage Loan, shall constitute solicitation under
this Section.
Section 12.13. Further Agreements.
The Purchaser and the Company each agree to execute and deliver to the
other such additional documents, instruments or agreements as may be necessary
or appropriate to effectuate the purposes of this Agreement.
Section 12.14. Confidential Information.
The Company shall keep confidential and shall not divulge to any party,
without the Purchaser's prior written consent, the price paid by the Purchaser
for the Mortgage Loans, except to the extent that it is reasonable and necessary
for the Company to do so in working with legal counsel, auditors, taxing
authorities or other governmental agencies.
Section 12.15. Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument.
Section 12.16. Exhibits.
The exhibits to this Agreement are hereby incorporated and made a part
hereof and are an integral part of this Agreement.
85
Section 12.17. General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly provided
or unless the context otherwise requires:
(a) the terms defined in this Agreement have the meanings assigned
to them in this Agreement and include the plural as well as the singular, and
the use of any gender herein shall be deemed to include the other gender;
(b) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with GAAP;
(c) references herein to "Articles," "Sections," "Subsections,"
"Paragraphs," and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other subdivisions of
this Agreement;
(d) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section in
which the reference appears, and this rule shall also apply to Paragraphs and
other subdivisions;
(e) the words "herein," "hereof," "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
provision; and
(f) the term "include" or "including" shall mean without limitation
by reason of enumeration.
Section 12.18. Reproduction of Documents.
This Agreement and all documents relating thereto, including, without
limitation, (a) consents, waivers and modifications which may hereafter be
executed, (b) documents received by any party at the closing, and (c) financial
statements, certificates and other information previously or hereafter
furnished, may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The parties agree
that any such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding, and that any enlargement,
facsimile or further reproduction of such reproduction shall likewise be
admissible in evidence.
Section 12.19. Buydown Loan Aggregate Limitation.
The aggregate outstanding principal balance of all Buydown Mortgage
Loans in a Loan Package (the "Actual Buydown Balance") shall not, at any time,
be greater than an amount equal to one-half percent (1/2%) of the aggregate
outstanding principal balance of all Mortgage Loans in such Loan Package (the
"Buydown Limit"). In the event that, at any time, the Actual Buydown Balance is
greater than an amount equal to the Buydown Limit, the Company shall, upon the
request of the Purchaser, repurchase at the Repurchase Price within (10)
Business Days of such request any Buydown Mortgage Loan(s) in such Loan Package;
provided, however, that the Actual Buydown Balance immediately after such
repurchase shall be no greater than the
86
Buydown Loan Limit. The Company shall promptly provide notice to the Purchaser
whenever the Actual Buydown Balance is greater than the Buydown Limit.
[Intentionally Blank - Next Page Signature Page]
87
IN WITNESS WHEREOF, the Company and the Purchaser have caused their
names to be signed hereto by their respective officers thereunto duly authorized
as of the day and year first above written.
BANK OF AMERICA, NATIONAL XXXXX FARGO BANK, N.A.
ASSOCIATION, PURCHASER COMPANY
By: /s/ Xxxxx X. Good By: /s/ Xxxxx Xxxxxx
---------------------------- ----------------------------
Name: Xxxxx X. Good Name: Xxxxx Xxxxxx
-------------------------- --------------------------
Title: Vice President Title: Vice President
------------------------- -------------------------
STATE OF )
) ss:
COUNTY OF ____________ )
On the _____ day of _______________, 20___ before me, a Notary Public in
and for said State, personally appeared Xxxxx Xxxxxx, known to me to be Vice
President 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
STATE OF NORTH CAROLINA )
) ss:
COUNTY OF MECKLENBURG )
On the _____ day of _______________, 20___ before me, a Notary Public in
and for said State, personally appeared Xxxxx X. Good, known to me to be the
Vice President of Bank of America, National Association, 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
FORM OF ASSIGNMENT AND CONVEYANCE AGREEMENT
On this _____ day of __________ 20___, for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, _______________________
(the "Seller") as the Seller under that certain Amended and Restated Master
Mortgage Loan Purchase Agreement, ("Purchase Agreement") and as the Company
under that certain Amended and Restated Master Seller's Warranties and Servicing
Agreement (the "Servicing Agreement") each dated as of December 1, 2005,
(collectively, the "Agreements") does hereby sell, transfer, assign, set over
and convey to ___________________________ as the Purchaser (the "Purchaser")
under the Purchase Agreement, and Purchaser hereby accepts from Seller, without
recourse, but subject to the terms of the Agreements, all right, title and
interest of, in and to each of the Mortgage Loans listed on the related Mortgage
Loan Schedule attached hereto as Exhibit A, together with the Custodial Mortgage
Files and all rights and obligations arising under the documents contained
therein. Pursuant to Section 2.03 of the Servicing Agreement, the Seller has
delivered to the Custodian the documents required to be delivered under the
Agreements for each Mortgage Loan to be purchased. The Servicing Files and the
Retained Mortgage Files retained by the Seller pursuant to Section 2.01 of the
Servicing Agreement shall be appropriately marked to clearly reflect the sale of
the related Mortgage Loans to the Purchaser.
Capitalized terms used herein and not otherwise defined shall have the meanings
set forth in the Agreements.
____________________________________ ____________________________________
PURCHASER COMPANY
By: ________________________________ By: ________________________________
Name: ______________________________ Name: ______________________________
Title: _____________________________ Title: _____________________________
EXHIBIT A-1
EXHIBIT A
MORTGAGE LOAN SCHEDULE
Exhibit A-1
EXHIBIT B
FORM OF
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
____________, 20__
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this "Agreement"),
dated ___________________, 20__ among _________________, a _________________
corporation having an office at _________________ ("Assignor") and
_________________, having an office at _________________ ("Assignee") and Xxxxx
Fargo Bank, N.A. (the "Company"), having an office at 0 Xxxx Xxxxxx, Xxx Xxxxxx,
Xxxx 00000-0000:
For and in consideration of the sum of one dollar ($1.00) and other
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, and of the mutual covenants herein contained, the parties hereto
hereby agree as follows:
1. The Assignor hereby grants, transfers and assigns to Assignee
all of the right, title and interest of Assignor, as Purchaser, in, to and under
(i) that certain Seller's Warranties and Servicing Agreement (the "Seller's
Warranties and Servicing Agreement"), dated as of _________________, by and
between _________________ (the "Purchaser"), and _________________ (the
"Company"), (ii) that certain Mortgage Loan Purchase Agreement (the "Mortgage
Loan Purchase Agreement" and, together with the Seller's Warranties and
Servicing Agreement, the "Purchase and Servicing Agreements"), dated as of
_______, by and between the Purchaser and the Company, (iii) the mortgage loans
delivered thereunder by the Company to the Assignor set forth on Exhibit 1
attached hereto (the "Mortgage Loans"), and (iv) that certain Custody Agreement
(the "Custody Agreement" and, together with the Purchase and Servicing
Agreements, the "Assigned Agreements"), dated as of _________________, by and
among the Purchaser and _________________ (the "Custodian").
Simultaneously with the execution of this Agreement, on the date hereof,
the Assignee shall pay to the Assignor for each Mortgage Loan the purchase price
as calculated pursuant to the [Commitment Letter], dated as of _______, 200_
(the "[Commitment Letter]"), by and between the Assignee and the Assignor. The
Assignee shall pay the purchase price payable under the Commitment Letter by
wire transfer of immediately available funds to the account specified by the
Assignor. The Assignee shall be entitled to (i) all payments and other
recoveries of principal on the Mortgage Loans received after ______, 200_ or
such other date mutually agreeable to the Assignor and the Assignee (the
"Mortgage Loans Cut-off Date") and (ii) all payments of interest on the Mortgage
Loans at the related Mortgage Loan Remittance Rate.
2. The Assignor warrants and represents to, and covenants with, the
Assignee that:
a. The Assignor is the lawful owner of the Mortgage Loans
with the full right to transfer the Mortgage Loans free from any and all claims
and encumbrances whatsoever;
Exhibit B-1
b. The Assignor has not received notice of, and has no
knowledge of, any offsets, counterclaims or other defenses available to the
Company with respect to the Assigned Agreements or the Mortgage Loans;
c. The Assignor has not waived or agreed to any waiver
under, or agreed to any amendment or other modification of, the Assigned
Agreements, the Custody Agreement or the Mortgage Loans, including without
limitation the transfer of the servicing obligations under the Seller's
Warranties and Servicing Agreement. The Assignor has no knowledge of, and has
not received notice of, any waivers under or amendments or other modifications
of, or assignments of rights or obligations under, the Purchase and Servicing
Agreements or the Mortgage Loans; and
d. Neither the Assignor nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the Mortgage Loans,
any interest in the Mortgage Loans or any other similar security to, or
solicited any offer to buy or accept a transfer, pledge or other disposition of
the Mortgage Loans, any interest in the Mortgage Loans or any other similar
security from, or otherwise approached or negotiated with respect to the
Mortgage Loans, any interest in the Mortgage Loans or any other similar security
with, any person in any manner, or made any general solicitation by means of
general advertising or in any other manner, or taken any other action which
would constitute a distribution of the Mortgage Loans under the Securities Act
of 1933 (the "1933 Act") or which would render the disposition of the Mortgage
Loans a violation of Section 5 of the 1933 Act or require registration pursuant
thereto.
3. That Assignee warrants and represent to, and covenants with, the
Assignor and the Company pursuant to Section 12.10 of the Seller's Warranties
and Servicing Agreement that:
a. The Assignee agrees to be bound, as Purchaser, by all of
the terms, covenants and conditions of the Seller's Warranties and Servicing
Agreement, the Mortgage Loans and the Custody Agreement, and from and after the
date hereof, the Assignee assumes for the benefit of each of the Company and the
Assignor all of the Assignor's obligations as purchaser thereunder;
b. The Assignee understands that the Mortgage Loans have
not been registered under the 1933 Act or the securities laws of any state;
c. The purchase price being paid by the Assignee for the
Mortgage Loans are in excess of $250,000.00 and will be paid by cash remittance
of the full purchase price within 60 days of the sale;
d. The Assignee is acquiring the Mortgage Loans for
investment for its own account only and not for any other person. In this
connection, neither the Assignee nor any person authorized to act therefor has
offered to sell the Mortgage Loans by means of any general advertising or
general solicitation within the meaning of Rule 502(c) of U.S. Securities and
Exchange Commission Regulation D, promulgated under the 1933 Act;
e. The Assignee considers itself a substantial
sophisticated institutional investor having such knowledge and experience in
financial and business matters that it is capable of evaluating the merits and
risks of investment in the Mortgage Loans;
Exhibit B-2
f. The Assignee has been furnished with all information
regarding the Mortgage Loans that it has requested from the Assignor or the
Company;
g. Neither the Assignee nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the Mortgage Loans,
any interest in the Mortgage Loans or any other similar security to, or
solicited any offer to buy or accepted a transfer, pledge or other disposition
of the Mortgage Loans, any interest in the Mortgage Loans or any other similar
security from, or otherwise approached or negotiated with respect to the
Mortgage Loans, any interest in the Mortgage Loans or any other similar security
with, any person in any manner which would constitute a distribution of the
Mortgage Loans under the 1933 Act or which would render the disposition of the
Mortgage Loans a violation of Section 5 of the 1933 Act or require registration
pursuant thereto, nor will it act, nor has it authorized or will it authorize
any person to act, in such manner with respect to the Mortgage Loans; and
h. Either (1) the Assignee is not an employee benefit plan
("Plan") within the meaning of section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA") or a plan (also a "Plan") within the
meaning of section 4975(e)(1) of the Internal Revenue Code of 1986 ("Code"), and
the Assignee is not directly or indirectly purchasing the Mortgage Loans on
behalf of, investment manager of, as named fiduciary of, as Trustee of, or with
assets of, a Plan; or (2) the Assignee's purchase of the Mortgage Loans will not
result in a prohibited transaction under section 406 of ERISA or section 4975 of
the Code.
i. The Assignee's address for purposes of all notices and
correspondence related to the Mortgage Loans and the Assigned Agreements is:
________________________________
________________________________
________________________________
Attention:
The Assignee's wire transfer instructions for purposes of all
remittances and payments related to the Mortgage Loans and the Seller's
Warranties and Servicing Agreement is:
________________________________
________________________________
Attention:
4. From and after the date hereof, the Company shall note the
transfer of the Mortgage Loans to the Assignee in its books and records, the
Company shall recognize the
Exhibit B-3
Assignee as the owner of the Mortgage Loans and the Company shall service the
Mortgage Loans for the benefit of the Assignee pursuant to the Seller's
Warranties and Servicing Agreement, the terms of which are incorporated herein
by reference. It is the intention of the Assignor, the Company and the Assignee
that the Assigned Agreements shall be binding upon and inure to the benefit of
the Company and the Assignee and their respective successors and assigns.
[Signatures Follow]
Exhibit B-4
IN WITNESS WHEREOF, the parties have caused this Assignment, Assumption
and Recognition Agreement to be executed by their duly authorized officers as of
the date first above written.
Assignor Assignee
By: ________________________________ By:
Name: ______________________________ Name:
Its: _______________________________ Its:
Taxpayer Identification No.: Taxpayer Identification No.:
Acknowledged this ___ day of ________________, 20___
XXXXX FARGO BANK, N.A.
Company
By:
Name:
Exhibit B-5
EXHIBIT C
CUSTODY AGREEMENT
Exhibit C-1
EXHIBIT D
CONTENTS OF EACH RETAINED MORTGAGE FILE, CUSTODIAL
MORTGAGE FILE AND SERVICING FILE
With respect to each Mortgage Loan, the Retained Mortgage File and
Custodial Mortgage File shall include each of the following items, 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 Sections 2.01 and 2.03
of the Master Seller's Warranties and Servicing Agreement to which this Exhibit
is attached (the "Agreement"):
WITH RESPECT TO EACH CUSTODIAL MORTGAGE FILE:
1. (a) The original Mortgage Note bearing all intervening
endorsements, endorsed "Pay to the order of without recourse"
and signed in the name of the Company by an authorized officer
(in the event that the Mortgage Loan was acquired by the Company
in a merger, the signature must be in the following form:
"[Company], successor by merger to [name of predecessor]"; and
in the event that the Mortgage Loan was acquired or originated
by the Company while doing business under another name, the
signature must be in the following form: "[Company], formerly
known as [previous name]"). The Mortgage Note must contain all
necessary intervening endorsements showing a complete chain of
endorsement from the originator (each such endorsement being
sufficient to transfer all right, title and interest of the
party so endorsing, as noteholder or assignee thereof, in and to
that Mortgage Note); or
(b) With respect to no more than 1% of the unpaid principal
balance of the Mortgage Loans as of the related Cut-off Date, a
certified copy of the Mortgage Note (endorsed as provided above)
together with a lost note affidavit, providing indemnification
to the holder thereof for any losses incurred due to the fact
that the original Mortgage Note is missing.
2. the originals or certified true copies of any document sent for
recordation of all assumption, modification, consolidation or
extension agreements, with evidence of recording thereon.
3. The original Assignment of Mortgage for each Mortgage Loan, in
form and substance acceptable for recording (except for the
insertion of the name of the assignee and recording
information). The Assignment of Mortgage must be duly recorded
only if recordation is either necessary under applicable law or
commonly required by private institutional mortgage investors in
the area where the Mortgaged Property is located or on direction
of the Purchaser. If the Assignment of Mortgage is to be
recorded, the Mortgage shall be assigned to the Purchaser. If
the Assignment of Mortgage is not to be recorded, the Assignment
of Mortgage shall be delivered in blank. If the Mortgage Loan
was acquired by the Company in a merger, the Assignment of
Mortgage must be made by "[Company],
Exhibit D-1
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. If the related Mortgage has been recorded in
the name of Mortgage Electronic Registration Systems, Inc.
("MERS") or its designee, no Assignment of Mortgage will be
required to be prepared or delivered and instead, the Company
shall take all actions as are necessary to cause the Purchaser
to be shown as the owner of the related Mortgage Loan on the
records of MERS for purposes of the system of recording
transfers of beneficial ownership of mortgages maintained by
MERS.
4. The original of any guarantee executed in connection with the
Mortgage Note (if any).
5. Original or certified copy of power of attorney, if applicable.
WITH RESPECT TO EACH RETAINED MORTGAGE FILE:
6. The original Mortgage, with evidence of recording thereon or a
certified true and correct copy of the Mortgage sent for
recordation. If in connection with any Mortgage Loan, the
Company cannot deliver or cause to be delivered the original
Mortgage with evidence of recording thereon on or prior to the
Closing Date because of a delay caused by the public recording
office where such Mortgage has been delivered for recordation or
because such Mortgage has been lost or because such public
recording office retains the original recorded Mortgage, the
Company shall deliver or cause to be delivered to the Custodian,
a photocopy of such Mortgage, together with (i) in the case of a
delay caused by the public recording office, an Officer's
Certificate of the Company stating that such Mortgage has been
dispatched to the appropriate public recording office for
recordation and that the original recorded Mortgage or a copy of
such Mortgage certified by such public recording office to be a
true and complete copy of the original recorded Mortgage will be
promptly delivered to the Custodian upon receipt thereof by the
Company; or (ii) in the case of a Mortgage where a public
recording office retains the original recorded Mortgage or in
the case where a Mortgage is lost after recordation in a public
recording office, a copy of such Mortgage certified by such
public recording office or by the title insurance company that
issued the title policy to be a true and complete copy of the
original recorded Mortgage.
7. For any Mortgage Loan not recorded in the name of MERS,
originals or certified true copies of documents sent for
recordation of all intervening assignments of the Mortgage with
evidence of recording thereon, or if any such intervening
assignment has not been returned from the applicable recording
office or has been lost or if such public recording office
retains the original recorded assignments of mortgage, the
Company shall deliver or cause to be delivered to the Custodian,
a
Exhibit D-2
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 mortgagee policy of title insurance (or in the case
of any Mortgage Loan secured by a Mortgaged Property located in
a jurisdiction where such policies are generally not available,
an opinion of counsel of the type customarily rendered in such
jurisdiction in lieu of title insurance).
9. Any security agreement, chattel mortgage or equivalent executed
in connection with the Mortgage.
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;
Exhibit D-3
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.
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):
11. The original hazard insurance policy and, if required by law,
flood insurance policy, in accordance with Section 4.10 of the
Agreement.
12. Fully executed residential loan application.
13. Fully executed Mortgage Loan closing statement (Form HUD-1) and
any other truth in lending or real estate settlement procedure
forms required by law.
14. Verification of employment and income, unless originated under
the Company's Limited Documentation program, Xxxxxx Xxx
Timesaver Plus.
15. Verification of acceptable evidence of source and amount of down
payment.
16. Credit report on the Mortgagor.
17. Residential Appraisal report.
18. Photograph of the Mortgaged Property.
19. Survey of the Mortgaged Property, if required by the title
company or applicable law.
20. 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.
21. All fully executed required disclosure statements required by
state and federal law.
22. If available, termite report, structural engineer's report,
water potability and septic certification.
23. Sales contract, if applicable.
24. 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
Exhibit D-4
contained in a mortgage loan file and which are required to
document the Mortgage Loan or to service the Mortgage Loan.
25. Amortization schedule, if available.
26. Payment history for any Mortgage Loan that has been closed for
more than 90 days.
In the event an Officer's Certificate of the Company is delivered to the
Custodian because of a delay caused by the public recording office in returning
any recorded document, the Company shall deliver to the Custodian, within 240
days of the Closing Date, an Officer's Certificate which shall (i) identify the
recorded document, (ii) state that the recorded document has not been delivered
to the Custodian due solely to a delay caused by the public recording office,
(iii) state the amount of time generally required by the applicable recording
office to record and return a document submitted for recordation, and (iv)
specify the date the applicable recorded document will be delivered to the
Custodian. The Company shall be required to deliver to the Custodian the
applicable recorded document by the date specified in (iv) above. An extension
of the date specified in (iv) above may be requested from the Purchaser, which
consent shall not be unreasonably withheld.
Exhibit D-5
EXHIBIT E
DATA FILE
Loan Number
Channel
Property City
Property State
Property Zip
Property County
Note Date
First Payment Date
Last Payment Date
Maturity Date
Original Loan Amount
Purchase Price
Appraised Value
Current Balance
Sale Balance
Current Interest Rate
Current PANDI
Product Type
Remaining Term
LTV
MI Code
Property Type
Occupancy Code
Purpose Code
Stream Code
Conforming
Client Name
LEX Number
Employer Name
Subsidy Code
Initial Interest Rate
Rate Change Date
Margin
Rate Cap
Max Interest Rate
Convertible
Index
Periodic Rate Cap
Relo Indicator
Temp Buydown
Servicing Fee
Exhibit E-1
Master Service Fee
Servicer Name
TLTV
ECS Raw Score
ECS Score Code
FICO Raw Score
FICO Score Code
ECS Version Number
Leasehold Indicator
No Ratio Indicator
Alt A Indicator
Citizen Type Code
Program Code
Credit Grade
Lien Status
Terminal Didget
Prepayment Penalty Period (years)
Servicer Code
Loan Term Number
Loan MI Certificate Number
Loan MI Coverage Percent
Borrower Last Name
Borrower First Name
Borrower Street Address
Pledged Asset Indicator
Loan Effect LTV Percent
Timesaver Indicator
Interest Only Indicator
Exhibit E-2
Exhibit B-1
EXHIBIT F
SERVICING SYSTEM GUIDELINES AND REQUIREMENTS
Loading/Updating Investor Headers
1. Bank of America will provide investor header matrix for input on
MSP by Servicer. Updates/additions will occur monthly, including
new investor header detail for each new deal that is settled.
2. The Servicer will load investor headers upon receipt or before
month end. The following fields will need to be updated on IN03:
MS OPT, MS INV CNTRL NO, MS MO DELQ, and MS JUST FL.
3. The Servicer will update the investor headers on the first
business day of the next/following month to ensure that the
correct loan accounts will appear on the corresponding 413 file
that will represent the new month's activity.
Loading Account Numbers
1. Upon receipt of a funding schedule, Bank of America will deliver
a cross reference of Servicer-to-Bank of America account numbers
to the servicer. The account numbers will be delivered in the
xxxx 55 layout for loading in the next Servicer MSP cycle.
2. The Servicer will load account numbers on the first business day
of the month to ensure that the correct Bank of America account
numbers will appear on the corresponding 413 file that will
represent the new month's activity.
Automated Monetary Transaction File - 413
1. Call Fidelity PowerCell and request installation of IP 770
2. On the first business day of the month, the financial
transactions for the LSBO portfolio will transmit from the
Servicer MSP system to the Bank of America MSP system.
Monthly Servicer File - Automated
1. Call Fidelity PowerCell and initiate an SSR for the installation
of IP 1804 and the interchange set-up required to host and
transmit this file. This enhancement will provide an automated
month-end feed from the Servicer to Bank of America for the LSBO
portfolio identified by the corresponding investor headers. The
feed will include all new loans purchased by Bank of America in
the previous month, as well as a maintenance file for all
existing loans in the LSBO portfolio
2. Once installed, populate XX flag on the IN03 screen. This flag
will assist with synchronizing the feeds received in the Monthly
Servicer File and the corresponding 413 file.
3. Bank of America will receive and process the electronic file on
the first business day of the month for the previous month-end
file. Note: This file comes from the servicer automatically with
the installation of the IP.
Exhibit F-1
Monthly Servicer File - Manual
For testing purposes, and in the event that the IP is not installed prior to
initial conversion, a manual process is in place to provide the Monthly Servicer
File data feed for REMOTE MSP clients.
1. The Servicer will load/update investor header information
received from Bank of America.
2. The Servicer will send an email granting permission to Fidelity
to provide the manual feed of accounts in the assigned investor
headers identified. The email will contain the MSP client and
corresponding investor/categories to be included in the feed.
3. Bank of America will receive and process the file on the first
business day of the month for the previous month-end file.
Note: For LICENSED MSP clients, the servicer will
install and use the existing work-around EZTrieve process. (This will
require the installation, testing, and implementation of the EZTrieve
until the IP is ready.) The servicer will be required to develop a test
file and production files until the IP is available.
Reporting Requirements
Required reports for the LSBO project are as follows:
o S215 - Report summarizes the collections made during the reporting
period
o S214 - Report summarizes paid in full loans made during the reporting
period
o P139 - Monthly statement of mortgage accounts or a trial balance as of
the cutoff date
o SCHEDULED REMITTANCE REPORTS - Servicers send on a monthly basis. We
would like this report by the 5th business day.
o DELINQUENCY REPORT - Report from the servicer to be sent by the 5th
business day. If the servicer is a Fidelity client, we would like a
P4DL report. Otherwise, a similar report will suffice. LSBO would like
this report sent via e-mail or fax.
NOTE: These S215, S214, and P139 reports will be provided in an electronic
format. These reports are automatically generated when the 951/139 cutoff is
calendared. The reports are required for the LSBO project; reports in addition
to these may be reasonably required in a format mutually agreed by the Purchaser
and the Company.
Exhibit F-2
EXHIBIT G
MONTHLY REMITTANCE ADVICE
Exhibit G-1
EXHIBIT H
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 SERVICING CRITERIA APPLICABLE INAPPLICABLE
REFERENCE SERVICING CRITERIA SERVICING CRITERIA
-----------------------------------------------------------------------------------------------------------------------------------
GENERAL SERVICING CONSIDERATIONS
-----------------------------------------------------------------------------------------------------------------------------------
Policies and procedures are instituted to monitor any performance
or other triggers and events of default in accordance with the
1122(d)(1)(i) transaction agreements.
-----------------------------------------------------------------------------------------------------------------------------------
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
1122(d)(1)(ii) activities.
-----------------------------------------------------------------------------------------------------------------------------------
Any requirements in the transaction agreements to maintain a
1122(d)(1)(iii) back-up servicer for the mortgage loans are maintained.
-----------------------------------------------------------------------------------------------------------------------------------
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
1122(d)(1)(iv) agreements.
-----------------------------------------------------------------------------------------------------------------------------------
CASH COLLECTION AND ADMINISTRATION
-----------------------------------------------------------------------------------------------------------------------------------
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
1122(d)(2)(i) number of days specified in the transaction agreements.
-----------------------------------------------------------------------------------------------------------------------------------
Disbursements made via wire transfer on behalf of an obligor or
1122(d)(2)(ii) to an investor are made only by authorized personnel.
-----------------------------------------------------------------------------------------------------------------------------------
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
1122(d)(2)(iii) transaction agreements.
-----------------------------------------------------------------------------------------------------------------------------------
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
1122(d)(2)(iv) agreements.
-----------------------------------------------------------------------------------------------------------------------------------
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
1122(d)(2)(v) requirements of Rule 13k-1(b)(1) of the Securities Exchange Act.
-----------------------------------------------------------------------------------------------------------------------------------
Unissued checks are safeguarded so as to prevent unauthorized
1122(d)(2)(vi) access.
-----------------------------------------------------------------------------------------------------------------------------------
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
1122(d)(2)(vii) transaction agreements.
-----------------------------------------------------------------------------------------------------------------------------------
INVESTOR REMITTANCES AND REPORTING
-----------------------------------------------------------------------------------------------------------------------------------
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
1122(d)(3)(i) Servicer.
-----------------------------------------------------------------------------------------------------------------------------------
Amounts due to investors are allocated and remitted in accordance
with timeframes, distribution priority and other terms set forth
1122(d)(3)(ii) in the transaction agreements.
-----------------------------------------------------------------------------------------------------------------------------------
Disbursements made to an investor are posted within two business
days to the Servicer's investor records, or such other number of
1122(d)(3)(iii) days specified in the transaction agreements.
-----------------------------------------------------------------------------------------------------------------------------------
Amounts remitted to investors per the investor reports agree with
cancelled checks, or other form of payment, or custodial bank
1122(d)(3)(iv) statements.
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
REG AB SERVICING CRITERIA APPLICABLE INAPPLICABLE
REFERENCE SERVICING CRITERIA SERVICING CRITERIA
-----------------------------------------------------------------------------------------------------------------------------------
POOL ASSET ADMINISTRATION
-----------------------------------------------------------------------------------------------------------------------------------
Collateral or security on mortgage loans is maintained as
required by the transaction agreements or related mortgage loan
1122(d)(4)(i) documents.
-----------------------------------------------------------------------------------------------------------------------------------
Mortgage loan and related documents are safeguarded as required
1122(d)(4)(ii) by the transaction agreements
-----------------------------------------------------------------------------------------------------------------------------------
Any additions, removals or substitutions to the asset pool are
made, reviewed and approved in accordance with any conditions or
1122(d)(4)(iii) requirements in the transaction agreements.
-----------------------------------------------------------------------------------------------------------------------------------
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
1122(d)(4)(iv) with the related mortgage loan documents.
-----------------------------------------------------------------------------------------------------------------------------------
The Servicer's records regarding the mortgage loans agree with
the Servicer's records with respect to an obligor's unpaid
1122(d)(4)(v) principal balance.
-----------------------------------------------------------------------------------------------------------------------------------
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
1122(d)(4)(vi) the transaction agreements and related pool asset documents.
-----------------------------------------------------------------------------------------------------------------------------------
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
1122(d)(4)(vii) established by the transaction agreements.
-----------------------------------------------------------------------------------------------------------------------------------
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
1122(d)(4)(viii) is deemed temporary (e.g., illness or unemployment).
-----------------------------------------------------------------------------------------------------------------------------------
Adjustments to interest rates or rates of return for mortgage
loans with variable rates are computed based on the related
1122(d)(4)(ix) mortgage loan documents.
-----------------------------------------------------------------------------------------------------------------------------------
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
1122(d)(4)(x) agreements.
-----------------------------------------------------------------------------------------------------------------------------------
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
1122(d)(4)(xi) other number of days specified in the transaction agreements.
-----------------------------------------------------------------------------------------------------------------------------------
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
1122(d)(4)(xii) to the obligor's error or omission.
-----------------------------------------------------------------------------------------------------------------------------------
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
1122(d)(4)(xiii) transaction agreements.
-----------------------------------------------------------------------------------------------------------------------------------
Delinquencies, charge-offs and uncollectible accounts are
recognized and recorded in accordance with the transaction
1122(d)(4)(xiv) agreements.
-----------------------------------------------------------------------------------------------------------------------------------
Any external enhancement or other support, identified in Item
1114(a)(1) through (3) or Item 1115 of Regulation AB, is
1122(d)(4)(xv) maintained as set forth in the transaction agreements.
-----------------------------------------------------------------------------------------------------------------------------------
EXHIBIT I
SARBANES CERTIFICATION
Re: The [ ] agreement dated as of [ ], 200[ ] (the "Agreement"),
among [IDENTIFY PARTIES]
I, ________________________________, the _______________________ of [Name of
Servicer] (the "Servicer"), certify to [the Purchaser], [the Depositor], and the
[Master Servicer] [Securities Administrator] [Trustee], and their officers, with
the knowledge and intent that they will rely upon this certification, that:
(1) I have reviewed the servicer compliance statement of the
Servicer provided in accordance with Item 1123 of Regulation AB (the
"Compliance Statement"), the report on assessment of the Servicer's
compliance with the servicing criteria set forth in Item 1122(d) of
Regulation AB (the "Servicing Criteria"), provided in accordance with
Rules 13a-18 and 15d-18 under Securities Exchange Act of 1934, as
amended (the "Exchange Act") and Item 1122 of Regulation AB (the
"Servicing Assessment"), the registered public accounting firm's
attestation report provided in accordance with Rules 13a-18 and 15d-18
under the Exchange Act and Section 1122(b) of Regulation AB (the
"Attestation Report"), and all servicing reports, officer's certificates
and other information relating to the servicing of the Mortgage Loans by
the Servicer during 200[ ] that were delivered by the Servicer to the
[Depositor] [Master Servicer] [Securities Administrator] [Trustee]
pursuant to the Agreement (collectively, the "Servicer Servicing
Information");
(2) Based on my knowledge, the Servicer Servicing Information, taken
as a whole, does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements made, in
the light of the circumstances under which such statements were made,
not misleading with respect to the period of time covered by the
Servicer Servicing Information;
(3) Based on my knowledge, all of the Servicer Servicing Information
required to be provided by the Servicer under the Agreement has been
provided to the [Depositor] [Master Servicer] [Securities Administrator]
[Trustee];
(4) I am responsible for reviewing the activities performed by the
Servicer under the Agreement, and based on my knowledge and the
compliance review conducted in preparing the Compliance Statement and
except as disclosed in the Compliance Statement, the Servicing
Assessment or the Attestation Report, the Servicer has fulfilled its
obligations under the Agreement in all material respects; and
(5) The Compliance Statement required to be delivered by the
Servicer pursuant to the Agreement, and the Servicing Assessment and
Attestation Report required to be provided by the Servicer and by 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: _________________________
EXHIBIT J
FORM OF XXXXXXXX-XXXXX BACK-UP CERTIFICATE
I, __________________________, certify to ____________________________,
and its officers, directors, agents and affiliates (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
SEC with respect to the Transaction, 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 this Servicing Agreement has been provided to
the [ ];
(iii) I am responsible for reviewing the activities performed by the
Servicer under the Servicing Agreement and based upon the review
required by this Servicing Agreement, 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 this Servicing Agreement; 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 Servicing Agreement.
(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.
IN WITNESS WHEREOF, I have hereunto signed by name and affixed the seal
of the Company.
Dated: _________________________________ By:
Name:
Title:
E
Exhibit H-1
