MASTER MORTGAGE LOAN PURCHASE AND SERVICING AGREEMENT
HOMEBANC
MORTGAGE CORPORATION
Seller
and Servicer
CITIGROUP
GLOBAL MARKETS REALTY CORP.
Initial
Purchaser
Dated
as
of June 1, 2006
Fixed
and
Adjustable Rate
First
and Second Lien Mortgage Loans
TABLE
OF
CONTENTS
|
SECTION
1.
|
Definitions
|
|
SECTION
2.
|
Agreement
to Purchase
|
|
SECTION
3.
|
Mortgage
Loan Schedules
|
|
SECTION
4.
|
Purchase
Price
|
|
SECTION
5.
|
Examination
of Mortgage Files
|
|
SECTION
6.
|
Conveyance
from Seller to Initial Purchaser.
|
|
Subsection
6.01.
|
Conveyance
of Mortgage Loans; Possession of Servicing Files.
|
|
Subsection
6.02.
|
Books
and Records.
|
|
Subsection
6.03.
|
Delivery
of Mortgage Loan Documents.
|
|
SECTION
7.
|
Representations,
Warranties and Covenants of the Seller; Remedies for
Breach.
|
|
Subsection
7.01.
|
Representations
and Warranties Respecting the Seller.
|
|
Subsection
7.02.
|
Representations
and Warranties Regarding Individual Mortgage Loans.
|
|
Subsection
7.03.
|
Remedies
for Breach of Representations and Warranties.
|
|
Subsection
7.04.
|
Prepayment-in-Full
Premium Recapture.
|
|
Subsection
7.05.
|
Early
Payment Default.
|
|
SECTION
8.
|
Closing
|
|
SECTION
9.
|
Closing
Documents.
|
|
SECTION
10.
|
Costs
|
|
SECTION
11.
|
Seller’s
Servicing Obligations
|
|
SECTION
12.
|
Removal
of Mortgage Loans from Inclusion under This Agreement Upon a Whole
Loan
Transfer or a Securitization Transaction on One or More Reconstitution
Dates.
|
|
SECTION
13.
|
The
Seller.
|
|
Subsection
13.01.
|
Additional
Indemnification by the Seller.
|
|
Subsection
13.02.
|
Merger
or Consolidation of the Seller.
|
|
Subsection
13.03.
|
Limitation
on Liability of the Seller and Others.
|
|
Subsection
13.04.
|
Seller
Not to Resign.
|
|
Subsection
13.05.
|
No
Transfer of Servicing.
|
|
SECTION
14.
|
DEFAULT.
|
|
Subsection
14.01.
|
Events
of Default.
|
|
Subsection
14.02.
|
Waiver
of Defaults.
|
|
SECTION
15.
|
Termination
|
|
SECTION
16.
|
Successor
to the Seller
|
|
SECTION
17.
|
Financial
Statements
|
|
SECTION
18.
|
Mandatory
Delivery: Grant of Security Interest
|
|
SECTION
19.
|
Notices
|
|
SECTION
20.
|
Severability
Clause
|
|
SECTION
21.
|
Counterparts
|
|
SECTION
22.
|
Governing
Law
|
|
SECTION
23.
|
Intention
of the Parties
|
|
SECTION
24.
|
Successors
and Assigns
|
|
SECTION
25.
|
Waivers
|
|
SECTION
26.
|
Exhibits
|
|
SECTION
27.
|
General
Interpretive Principles
|
|
SECTION
28.
|
Nonsolicitation
|
|
SECTION
29.
|
Reproduction
of Documents
|
|
SECTION
30.
|
Further
Agreements
|
|
SECTION
31.
|
Entire
Agreement.
|
|
SECTION
32.
|
Third
Party Beneficiary
|
EXHIBITS
|
EXHIBIT
1
|
SELLER’S
OFFICER’S CERTIFICATE
|
|
EXHIBIT
2
|
FORM
OF OPINION OF COUNSEL TO THE SELLER
|
|
EXHIBIT
3
|
SECURITY
RELEASE CERTIFICATION
|
|
EXHIBIT
4
|
ASSIGNMENT
AND CONVEYANCE
|
|
EXHIBIT
5
|
CONTENTS
OF EACH MORTGAGE FILE
|
|
EXHIBIT
6
|
FORM
OF CUSTODIAL ACCOUNT LETTER AGREEMENT
|
|
EXHIBIT
7
|
FORM
OF ESCROW ACCOUNT LETTER AGREEMENT
|
|
EXHIBIT
8
|
SERVICING
ADDENDUM
|
|
EXHIBIT
9
|
FORM
OF ASSIGNMENT AND RECOGNITION AGREEMENT
|
|
EXHIBIT
10
|
FORM
OF INDEMNIFICATION AGREEMENT
|
|
EXHIBIT
11
|
FORM
OF ANNUAL CERTIFICATION
|
|
EXHIBIT
12
|
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF
COMPLIANCE
|
This
is a
MASTER MORTGAGE LOAN PURCHASE AND SERVICING AGREEMENT (the “Agreement”), dated
as of June 1, 2006, by and between Citigroup Global Markets Realty Corp., having
an office at 000 Xxxxxxxxx Xxxxxx, 0xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (the “Initial Purchaser”, and the Initial Purchaser or
the Person, if any, to which the Initial Purchaser has assigned its rights
and
obligations hereunder as Purchaser with respect to a Mortgage Loan, and each
of
their respective successors and assigns, the “Purchaser”) and HomeBanc Mortgage
Corporation, having an office at 0000 Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxx 00000 (the “Seller”).
W I T N E
;S S E T H
:
WHEREAS,
the Seller desires to sell, from time to time, to the Purchaser, and the
Purchaser desires to purchase, from time to time, from the Seller, certain
conventional fixed and adjustable rate residential first and second lien
mortgage loans, including the right to any Prepayment Charges payable by the
related Mortgagors as described herein (the “Mortgage Loans”), on a
servicing-retained basis, and which shall be delivered in groups of whole loans
on various dates as provided in the related Confirmation (each, a “Closing
Date”);
WHEREAS,
each Mortgage Loan is secured by a mortgage, deed of trust or other security
instrument creating a first or second lien on a residential dwelling located
in
the jurisdiction indicated on the Mortgage Loan Schedule for the related
Mortgage Loan Package, which is to be annexed to the related Assignment and
Conveyance on each Closing Date as Schedule One;
WHEREAS,
the Purchaser and the Seller wish to prescribe the manner of the conveyance,
servicing and control of the Mortgage Loans; and
WHEREAS,
following its purchase of the Mortgage Loans from the Seller, the Purchaser
desires to sell some or all of the Mortgage Loans to one or more purchasers
as a
whole loan transfer in a whole loan or participation format or a public or
private mortgage-backed securities transaction;
NOW,
THEREFORE, in consideration of the premises and mutual agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Purchaser and the Seller
agree
as follows:
SECTION
1. Definitions.
For
purposes of this Agreement the following capitalized terms shall have the
respective meanings set forth below.
Adjustable
Rate Mortgage Loan:
A
Mortgage Loan which provides for the adjustment of the Mortgage Interest Rate
payable in respect thereto.
Adjustment
Date:
With
respect to each Adjustable Rate Mortgage Loan, the date set forth in the related
Mortgage Note on which the Mortgage Interest Rate on such Adjustable Rate
Mortgage Loan is adjusted in accordance with the terms of the related Mortgage
Note.
Agreement:
This
Master Mortgage Loan Purchase and Servicing Agreement including all exhibits,
schedules, amendments and supplements hereto.
Appraised
Value:
With
respect to any Mortgaged Property, the lesser of (i) the value thereof as
determined by an appraisal made for the originator of the Mortgage Loan at
the
time of origination of the Mortgage Loan by an appraiser who met the minimum
requirements of Xxxxxx Xxx and Xxxxxxx Mac and the Financial Institutions
Reform, Recovery, and Enforcement Act of 1989 or
as
determined by use of an automated valuation model,
and
(ii) the purchase price paid for the related Mortgaged Property by the Mortgagor
with the proceeds of the Mortgage Loan; provided, however, in the case of a
Refinanced Mortgage Loan, such value of the Mortgaged Property is based solely
upon the value determined by an appraisal made for the originator of such
Refinanced Mortgage Loan at the time of origination of such Refinanced Mortgage
Loan by an appraiser who met the minimum requirements of Xxxxxx Mae and Xxxxxxx
Mac and the Financial Institutions Reform, Recovery, and Enforcement Act of
1989.
Assignment
and Conveyance:
An
assignment and conveyance of the Mortgage Loans purchased on a Closing Date
in
the form annexed hereto as Exhibit
4.
Assignment
of Mortgage:
With
respect to each Mortgage Loan which is not a MOM Loan, an individual assignment
of the Mortgage, notice of transfer or equivalent instrument in recordable
form,
sufficient under the laws of the jurisdiction wherein the related Mortgaged
Property is located to give record notice of the sale of the Mortgage to the
Purchaser.
Balloon
Mortgage Loan:
A
Mortgage Loan that provided on the date of origination for an amortization
schedule extending beyond its maturity date.
Balloon
Payment:
With
respect to any Balloon Mortgage Loan as of any date of determination, the
Monthly Payment payable on the maturity of such Mortgage Loan.
Business
Day:
Any day
other than a Saturday or Sunday, or a day on which banking and savings and
loan
institutions in the State of Georgia or the State of New York are authorized
or
obligated by law or executive order to be closed.
Buydown
Agreement:
An
agreement between the Seller and a Mortgagor, or an agreement among the Seller,
a Mortgagor and a seller of a Mortgaged Property or a third party with respect
to a Mortgage Loan which provides for the application of Buydown
Funds.
Buydown
Funds:
In
respect of any Buydown Mortgage Loan, any amount contributed by the seller
of a
Mortgaged Property subject to a Buydown Mortgage Loan, the buyer of such
property, the Seller or any other source, plus interest earned thereon, in
order
to enable the Mortgagor to reduce the payments required to be made from the
Mortgagor’s funds in the early years of a Mortgage Loan.
Buydown
Mortgage Loan:
Any
Mortgage Loan in respect of which, pursuant to a Buydown Agreement, (i) the
Mortgagor pays less than the full monthly payments specified in the Mortgage
Note for a specified period and (ii) the difference between the payments
required under such Buydown Agreement and the Mortgage Note is provided from
Buydown Funds.
Buydown
Period:
The
period of time when a Buydown Agreement is in effect with respect to a related
Buydown Mortgage Loan.
Cash-Out
Refinancing:
A
Refinanced Mortgage Loan the proceeds of which were in excess of the principal
balance of any existing first and second mortgage on the related Mortgaged
Property and related closing costs by more than the lesser of two percent (2%)
of the loan amount or $2,000, and were used to pay any such existing first
and
second mortgage, related closing costs and subordinate mortgages on the related
Mortgaged Property.
Closing
Date:
The
date or dates on which the Purchaser, from time to time, shall purchase and
the
Seller, from time to time, shall sell to the Purchaser, the Mortgage Loans
listed on the related Mortgage Loan Schedule with respect to the related
Mortgage Loan Package.
Closing
Documents:
With
respect to any Closing Date, the documents required pursuant to
Section 9.
Code:
The
Internal Revenue Code of 1986, or any successor statute thereto.
Combined
Loan-to-Value Ratio
or
CLTV:
With
respect to any Mortgage Loan, the fraction, expressed as a percentage, the
numerator of which is the sum of (a) the original principal balance of the
Mortgage Loan, plus (b) the unpaid principal balance of any related subordinate
mortgage loan or loans secured by the Mortgaged Property, and the denominator
of
which is the Appraised Value of the related Mortgaged Property.
Commission:
The
United States Securities and Exchange Commission.
Condemnation
Proceeds:
All
awards, compensation and settlements in respect of a taking of all or part
of a
Mortgaged Property by exercise of the power of condemnation or the right of
eminent domain.
Confirmation:
With
respect to any Mortgage Loan Package purchased and sold on any Closing Date,
the
purchase price and terms letter agreement between the Purchaser and the Seller
(including any exhibits, schedules and attachments thereto), setting forth
the
terms and conditions of such transaction and describing the Mortgage Loans
to be
purchased by the Purchaser on such Closing Date. A Confirmation may relate
to
more than one Mortgage Loan Package to be purchased on one or more Closing
Dates
hereunder.
Convertible
Mortgage Loan:
A
Mortgage Loan that by its terms and subject to certain conditions contained
in
the related Mortgage or Mortgage Note allows the Mortgagor to convert the
adjustable Mortgage Interest Rate on such Mortgage Loan to a fixed Mortgage
Interest Rate.
Credit
Score:
The
credit score of the Mortgagor provided by Fair, Xxxxx & Company, Inc. or
such other organization providing credit scores at the time of the origination
of a Mortgage Loan. If two credit scores are obtained, the Credit Score shall
be
the lower of the two credit scores. If three credit scores are obtained, the
Credit Score shall be the middle of the three credit scores.
Custodial
Account:
The
separate account or accounts, each of which shall be an Eligible Account,
created and maintained pursuant to this Agreement, which shall be entitled
“HomeBanc Mortgage Corporation, as servicer, in trust for the Purchaser and
various Mortgagors, Fixed and Adjustable Rate Mortgage Loans”, established at a
financial institution acceptable to the Purchaser. Each Custodial Account shall
be an Eligible Account.
Cut-off
Date:
The
first day of the month in which the related Closing Date occurs, or as otherwise
set forth in the related Confirmation.
Data
File:
The
data
file provided by the Seller to the Purchaser in connection with the Mortgage
Loans to be purchased on the related Closing Date.
Deleted
Mortgage Loan:
A
Mortgage Loan replaced or to be replaced by a Qualified Substitute Mortgage
Loan.
Depositor:
The
depositor, as such term is defined in Regulation AB, with respect to any
Securitization Transaction.
Determination
Date:
With
respect to each Distribution Date, the fifteenth (15th) day of the calendar
month in which such Distribution Date occurs or, if such fifteenth (15th) day
is
not a Business Day, the Business Day immediately following such fifteenth (15th)
day.
Distribution
Date:
The
eighteenth (18th) day of each month, commencing on the eighteenth day of the
month next following the month in which the related Cut-off Date occurs, or
if
such eighteenth (18th) day is not a Business Day, the first Business Day
immediately preceding such eighteenth (18th) day.
Due
Date:
With
respect to each Mortgage Loan, the day of the calendar month on which each
Monthly Payment is due on such Mortgage Loan (including the Balloon Payment
with
respect to a Balloon Mortgage Loan), exclusive of any days of
grace.
Due
Period:
With
respect to each Distribution Date, the period commencing on the second day
of
the month preceding the month of the Distribution Date and ending on the first
day of the month of the Distribution Date.
Eligible
Account:
Either
(i) an account or accounts maintained with a federal or state chartered
depository institution or trust company that (a) is incorporated under the
laws
of the United States of America or any state thereof, (b) is subject to
supervision and examination by federal or state banking authorities and (c)
has
or is a subsidiary of a holding company that has an outstanding unsecured
commercial paper or other short-term unsecured debt obligations that are rated
A-1 by S&P or Prime-1 by Moody’s (or a comparable rating if another rating
agency is specified by the Initial Purchaser by written notice to the Seller)
at
the time any amounts are held on deposit therein, (ii) an account or accounts
the deposits in which are fully insured by the FDIC or (iii) a trust account
or
accounts maintained with the corporate trust department of a federal or state
chartered depository institution or trust company acting in its fiduciary
capacity. Eligible Accounts may bear interest.
Escrow
Account:
The
separate trust account or accounts created and maintained pursuant to this
Agreement which shall be entitled “HomeBanc Mortgage Corporation, as servicer,
in trust for the Purchaser and various Mortgagors, Fixed and Adjustable Rate
Mortgage Loans”, established at a financial institution acceptable to the
Purchaser. Each Escrow Account shall be an Eligible Account.
Escrow
Payments:
The
amounts constituting ground rents, taxes, assessments, water charges, sewer
rents, Primary Insurance Policy premiums, fire and hazard insurance premiums
and
other payments required to be escrowed by the Mortgagor with the Mortgagee
pursuant to the terms of any Mortgage Note or Mortgage.
Event
of Default:
Any one
of the events enumerated in Subsection 15.01.
Exchange
Act:
The
Securities Exchange Act of 1934, as amended.
Xxxxxx
Mae:
Xxxxxx
Xxx or any successor thereto.
FDIC:
The
Federal Deposit Insurance Corporation, or any successor thereto.
Final
Recovery Determination:
With
respect to any defaulted Mortgage Loan or any REO Property (other than a
Mortgage Loan or REO Property repurchased by the Seller pursuant to this
Agreement), a determination made by the Seller that all Condemnation Proceeds,
Insurance Proceeds, Liquidation Proceeds and other payments or recoveries which
the Seller, in its reasonable good faith judgment, expects to be finally
recoverable in respect thereof have been so recovered. The Seller shall maintain
records, prepared by a servicing officer of the Seller, of each Final Recovery
Determination.
First
Lien:
With
respect to each Mortgaged Property, the lien of the mortgage, deed of trust
or
other instrument securing a Mortgage Note which creates a first lien on the
Mortgaged Property.
Fixed
Rate Mortgage Loan:
A
Mortgage Loan with respect to which the Mortgage Interest Rate set forth in
the
Mortgage Note is fixed for the term of such Mortgage Loan.
Flood
Zone Service Contract:
A
transferable contract maintained for the Mortgaged Property with a nationally
recognized flood zone service provider for the purpose of obtaining the current
flood zone status relating to such Mortgaged Property.
Xxxxxxx
Mac:
Xxxxxxx
Mac or any successor thereto.
Gross
Margin:
With
respect to any Adjustable Rate Mortgage Loan, the fixed percentage amount set
forth in the related Mortgage Note and the related Mortgage Loan Schedule that
is added to the Index on each Adjustment Date in accordance with the terms
of
the related Mortgage Note to determine the new Mortgage Interest Rate for such
Mortgage Loan.
HUD:
The
United States Department of Housing and Urban Development or any successor
thereto.
Index:
With
respect to any Adjustable Rate Mortgage Loan, the index identified on the
Mortgage Loan Schedule and set forth in the related Mortgage Note for the
purpose of calculating the interest rate thereon.
Initial
Closing Date:
The
Closing Date on which the Initial Purchaser purchases and the Seller sells
the
first Mortgage Loan Package hereunder.
Initial
Purchaser:
Citigroup Global Markets Realty Corp., or any successor.
Insurance
Proceeds:
With
respect to each Mortgage Loan, proceeds of insurance policies insuring the
Mortgage Loan or the related Mortgaged Property.
Lender
Paid Mortgage Insurance Policy
or
LPMI
Policy:
A
policy of mortgage guaranty insurance issued by a Qualified Insurer in which
the
owner or servicer of the Mortgage Loan is responsible for the premiums
associated with such mortgage insurance policy.
Liquidation
Proceeds:
Amounts, other than Insurance Proceeds and Condemnation Proceeds, received
in
connection with the liquidation of a defaulted Mortgage Loan through trustee’s
sale, foreclosure sale or otherwise, other than amounts received following
the
acquisition of REO Property and prior to an REO Disposition.
Loan-to-Value
Ratio
or
LTV:
With
respect to any Mortgage Loan as of any date of determination, the ratio on
such
date of the outstanding principal amount of the Mortgage Loan, to the Appraised
Value of the Mortgaged Property.
Maximum
Mortgage Interest Rate:
With
respect to each Adjustable Rate Mortgage Loan, a rate that is set forth on
the
related Mortgage Loan Schedule and in the related Mortgage Note and is the
maximum interest rate to which the Mortgage Interest Rate on such Mortgage
Loan
may be increased on any Adjustment Date.
MERS:
Mortgage Electronic Registration Systems, Inc., a corporation organized and
existing under the laws of the State of Delaware, or any successor
thereto.
MERS
Mortgage Loan:
Any
Mortgage Loan registered with MERS on the MERS System.
MERS
System:
The
system of recording transfers of mortgages electronically maintained by
MERS.
Minimum
Mortgage Interest Rate:
With
respect to each Adjustable Rate Mortgage Loan, a rate that is set forth on
the
related Mortgage Loan Schedule and in the related Mortgage Note and is the
minimum interest rate to which the Mortgage Interest Rate on such Mortgage
Loan
may be decreased on any Adjustment Date.
MOM
Loan:
Any
Mortgage Loan as to which MERS is acting as the mortgagee of record of such
Mortgage Loan, solely as nominee for the originator of such Mortgage Loan and
its successors and assigns, at the origination thereof.
Monthly
Advance:
The
aggregate of the advances made by the Seller on any Distribution Date pursuant
to Subsection 11.21 of Exhibit
8.
Monthly
Payment:
With
respect to any Mortgage Loan, the scheduled combined payment of principal and
interest (including any Balloon Payment) payable by a Mortgagor under the
related Mortgage Note on each Due Date.
Moody’s:
Xxxxx’x
Investors Service, Inc. or its successor in interest.
Mortgage:
The
mortgage, deed of trust or other instrument creating a first or second lien
on
Mortgaged Property securing the Mortgage Note.
Mortgagee:
The
mortgagee or beneficiary named in the Mortgage and the successors and assigns
of
such mortgagee or beneficiary.
Mortgage
File:
The
items pertaining to a particular Mortgage Loan referred to in Exhibit
5
annexed
hereto, and any additional documents required to be added to the Mortgage File
pursuant to this Agreement or the related Confirmation.
Mortgage
Interest Rate:
With
respect to each Fixed Rate Mortgage Loan, the fixed annual rate of interest
provided for in the related Mortgage Note and, with respect to each Adjustable
Rate Mortgage Loan, the annual rate that interest accrues on such Adjustable
Rate Mortgage Loan from time to time in accordance with the provisions of the
related Mortgage Note.
Mortgage
Loan:
Each
first or second lien residential Mortgage Loan, as set forth in the related
Confirmation, sold, assigned and transferred to the Purchaser pursuant to this
Agreement and the related Confirmation and identified on the Mortgage Loan
Schedule annexed to this Agreement on the related Closing Date, which Mortgage
Loan includes without limitation the Mortgage File, the Monthly Payments,
Principal Prepayments, Prepayment Charges, Liquidation Proceeds, Condemnation
Proceeds, Insurance Proceeds, REO Disposition proceeds, and all other rights,
benefits, proceeds and obligations arising from or in connection with such
Mortgage Loan.
Mortgage
Loan Documents:
The
documents described as the “Mortgage Loan Documents” in Exhibit
5
annexed
hereto pertaining to any Mortgage Loan.
Mortgage
Loan Package:
The
Mortgage Loans listed on a Mortgage Loan Schedule, delivered to the Purchaser
or
its designee at least five (5) Business Days prior to the related Closing Date
and attached to the Assignment and Conveyance as Schedule One on the related
Closing Date.
Mortgage
Loan Schedule:
With
respect to each Mortgage Loan Package, the schedule of Mortgage Loans to be
annexed to an Assignment and Conveyance as Schedule One on each Closing Date
for
the Mortgage Loan Package delivered on such Closing Date in both hard copy
and
electronic form, such schedule setting forth the following information with
respect to each Mortgage Loan in the Mortgage Loan Package: (1) the Seller’s
Mortgage Loan identifying number; (2) the Mortgagor’s first and last name; (3)
the street address of the Mortgaged Property including the state, county, city
and zip code; (4) the Cut-off Date; (5) the type of Residential Dwelling
constituting the Mortgaged Property; (6) the number of units in the related
Mortgaged Property; (7) a code indicating if the Mortgage is secured by a
leasehold estate; (8) a code indicating whether the Mortgage Loan is a Buydown
Mortgage Loan; (9) the Mortgagor’s income at origination; (10) a code indicating
whether the related Mortgagor is self-employed; (11) a code indicating whether
the Mortgaged Property is owner occupied; (12) a code indicating the Credit
Score of the Mortgagor and the date such Credit Score was obtained; (13) the
Mortgagor’s debt to income ratio; (14) the Mortgage Loan’s payment history; (15)
a code indicating whether the Mortgage Loan is prime/Alt-A or subprime; (16)
the
Mortgage Interest Rate at origination; (17) the current Mortgage Interest Rate;
(18) the Net Mortgage Rate; (19) a code indicating any step-up in the Servicing
Fee; (20) the seasoning (age); (21) the original months to maturity; (22) the
original date of the Mortgage Loan and the remaining months to maturity from
the
Cut off Date, based on the original amortization schedule; (23) the Mortgage
Interest Rate in effect immediately following the related Cut off Date; (24)
the
product type (e.g., 2/28, 15 year fixed, 30 year fixed, 15/30, etc.); (25)
a
code indicating whether the Mortgaged Property is subject to a First Lien or
a
Second Lien; (26) a code indicating whether the Second Lien Mortgage Loan is
a
simultaneous second and the amount of the Second Lien; (27) the date on which
the first Monthly Payment was due on the Mortgage Loan and, if such date is
not
consistent with the Due Date currently in effect, such Due Date; (28) the
interest paid-through date; (29) the stated maturity date; (30) the amount
of
the Monthly Payment at origination; (31) the amount of the Monthly Payment
as of
the Cut off Date; (32) the last Due Date on which a Monthly Payment was actually
applied to the unpaid Stated Principal Balance; (33) the Appraised Value of
the
Mortgaged Property and whether the Appraised Value was obtained using an
automated valuation model; (34) a code indicating the form of appraisal (i.e.
form 1004, 2055, etc.); (35) the sale price of the Mortgaged Property, if
applicable; (36) the Loan to Value Ratio at origination and the Combined
Loan-to-Value Ratio at origination; (37) reserved; (38) the original principal
amount of the Mortgage Loan; (39) the Stated Principal Balance of the Mortgage
Loan as of the close of business on the Cut off Date; (40) amortization type
(ie: fully amortizing, interest-only); (41) the amortized original term to
maturity as of the Cut-off Date; (42) the Mortgage Interest Rate at origination;
(43) a code indicating if the Mortgage Loan is an interest-only Mortgage Loan
and, if so, the term of the interest-only period of such Mortgage Loan; (44)
a
code indicating whether the Mortgage Loan is a Balloon Mortgage Loan and, if
so,
the term of the Balloon Mortgage Loan and the amount of the Balloon Payment
scheduled to be due at maturity assuming no Principal Prepayments; (45) a code
indicating whether the Mortgage Loan is an Adjustable Rate Mortgage Loan or
a
Fixed Rate Mortgage Loan; (46) with respect to each Adjustable Rate Mortgage
Loan, the first Adjustment Date; (47) with respect to each Adjustable Rate
Mortgage Loan, the next Adjustment Date; (48) with respect to each Adjustable
Rate Mortgage Loan, the Gross Margin; (49) with respect to each Adjustable
Rate
Mortgage Loan, the Maximum Mortgage Interest Rate under the terms of the
Mortgage Note; (50) with respect to each Adjustable Rate Mortgage Loan, the
Minimum Mortgage Interest Rate under the terms of the Mortgage Note; (51) with
respect to each Adjustable Rate Mortgage Loan, the Initial Rate Cap; (52) with
respect to each Adjustable Rate Mortgage Loan, the Periodic Rate Cap; (53)
with
respect to each Adjustable Rate Mortgage Loan, the first Adjustment Date
immediately following the Cut off Date; (54) with respect to each Adjustable
Rate Mortgage Loan, the Index; (55) with respect to each Adjustable Rate
Mortgage Loan, a code indicating the frequency of adjustment of the related
Mortgage Interest Rate; (56) a code indicating the purpose of the loan (i.e.,
purchase financing, Rate/Term Refinancing, Cash Out Refinancing); (57) a code
indicating the documentation style (i.e., full, alternative or reduced); (58)
a
code indicating if the Mortgage Loan is subject to a Primary Insurance Policy
or
LPMI Policy; and if so, the provider of such insurance, the coverage percentage
of such insurance and the fee payable to the provider in respect of such
insurance; (59) a code indicating whether the Mortgage Loan is subject to a
Prepayment Charge, the term of such Prepayment Charge and the amount of such
Prepayment Charge; (60) the amount of any fees payable by the Mortgagor in
connection with the origination of such Mortgage Loan; and (61) a code
indicating whether there is flood insurance on the Mortgaged Property. With
respect to the Mortgage Loan Package in the aggregate, the Mortgage Loan
Schedule shall set forth the following information, as of the related Cut-off
Date: (1) the number of Mortgage Loans; (2) the current principal balance of
the
Mortgage Loans; (3) the weighted average Mortgage Interest Rate of the Mortgage
Loans; and (4) the weighted average maturity of the Mortgage Loans.
Mortgage
Note:
The
original executed note or other evidence of the Mortgage Loan indebtedness
of a
Mortgagor.
Mortgaged
Property:
The
Mortgagor’s real property securing repayment of a related Mortgage Note,
consisting of a fee simple or leasehold interest in a single parcel of real
property improved by a Residential Dwelling.
Mortgagor:
The
obligor on a Mortgage Note, the owner of the Mortgaged Property and the grantor
or mortgagor named in the related Mortgage and such grantor’s or mortgagor’s
successors in title to the Mortgaged Property.
Net
Mortgage Rate:
With
respect to any Mortgage Loan (or the related REO Property), as of any date
of
determination, a per annum rate of interest equal to the then applicable
Mortgage Interest Rate for such Mortgage Loan minus the Servicing Fee
Rate.
Nonrecoverable
Monthly Advance:
Any
Monthly Advance previously made or proposed to be made in respect of a Mortgage
Loan or REO Property that, in the good faith business judgment of the Seller,
will not, or, in the case of a proposed Monthly Advance, would not be,
ultimately recoverable from related late payments, Insurance Proceeds or
Liquidation Proceeds on such Mortgage Loan or REO Property as provided
herein.
Officer’s
Certificate:
A
certificate signed by the Chairman of the Board or the Vice Chairman of the
Board or a President or a Vice President and by the Treasurer or the Secretary
or one of the Assistant Treasurers or Assistant Secretaries of the Person on
behalf of whom such certificate is being delivered.
Opinion
of Counsel:
A
written opinion of counsel, who may be salaried counsel for the Person on behalf
of whom the opinion is being given, reasonably acceptable to each Person to
whom
such opinion is addressed.
Periodic
Rate Cap:
With
respect to each Adjustable Rate Mortgage Loan and any Adjustment Date therefor,
a number of percentage points per annum that is set forth in the related
Mortgage Loan Schedule and in the related Mortgage Note, which is the maximum
amount by which the Mortgage Interest Rate for such Adjustable Rate Mortgage
Loan may increase (without regard to the Maximum Mortgage Interest Rate) or
decrease (without regard to the Minimum Mortgage Interest Rate) on such
Adjustment Date from the Mortgage Interest Rate in effect immediately prior
to
such Adjustment Date.
Permitted
Investments:
Any one
or more of the following obligations or securities acquired at a purchase price
of not greater than par, regardless of whether issued or managed by the Seller
or any of its Affiliates:
(i) direct
obligations of, or obligations fully guaranteed as to timely payment of
principal and interest by, the United States or any agency or instrumentality
thereof, provided such obligations are backed by the full faith and credit
of
the United States;
(ii) demand
and time deposits in, certificates of deposit of, or bankers’ acceptances (which
shall each have an original maturity of not more than 90 days and, in the case
of bankers’ acceptances, shall in no event have an original maturity of more
than 365 days or a remaining maturity of more than 30 days) denominated in
United States dollars and issued by, any Depository Institution;
(iii) repurchase
obligations with respect to any security described in clause (i) above entered
into with a Depository Institution (acting as principal);
(iv) securities
bearing interest or sold at a discount that are issued by any corporation
incorporated under the laws of the United States of America or any state thereof
and that are rated by the Rating Agencies in its highest long-term unsecured
rating category at the time of such investment or contractual commitment
providing for such investment;
(v) commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified date not more
than 30 days after the date of acquisition thereof) that is rated by the Rating
Agencies in its highest short-term unsecured debt rating available at the time
of such investment; and
(vi) units
of
money market funds that have been rated “AAA” by S&P, “Aaa” by Xxxxx’x and
“AAA” by Fitch (if rated by Fitch);
provided,
however, that no instrument described hereunder shall evidence either the right
to receive (a) only interest with respect to the obligations underlying such
instrument or (b) both principal and interest payments derived from obligations
underlying such instrument and the interest and principal payments with respect
to such instrument provide a yield to maturity at par greater than 120% of
the
yield to maturity at par of the underlying obligations.
Person:
An
individual, corporation, limited liability company, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Preliminary
Servicing Period:
With
respect to any Mortgage Loans, the period commencing on the related Closing
Date
and ending on the date the Seller enters into Reconstitution Agreements which
amend or restate the servicing provisions of this Agreement.
Prepayment
Charge:
With
respect to any Mortgage Loan, any prepayment penalty or premium thereon payable
in connection with a principal prepayment on such Mortgage Loan pursuant to
the
terms of the related Mortgage Note.
Prepayment
Period:
The
calendar month preceding the month in which the related Distribution Date
occurs.
Primary
Insurance Policy:
A
policy of primary mortgage guaranty insurance issued by a Qualified
Insurer.
Principal
Prepayment:
Any
payment or other recovery of principal on a Mortgage Loan which is received
in
advance of its scheduled Due Date, including any Prepayment Charge or penalty
thereon, which is not accompanied by an amount of interest representing
scheduled interest due on any date or dates in any month or months subsequent
to
the month of prepayment.
Purchase
Price:
The
price paid on the related Closing Date by the Purchaser to the Seller pursuant
to the related Confirmation in exchange for the Mortgage Loans purchased on
such
Closing Date as provided in Section 4.
Qualified
Correspondent:
Any
Person from which the Seller purchased Mortgage Loans, provided that the
following conditions are satisfied: (i) such Mortgage Loans were originated
pursuant to an agreement between the Seller and such Person that contemplated
that such Person would underwrite mortgage loans from time to time, for sale
to
the Seller, in accordance with underwriting guidelines designated by the Seller
(“Designated Guidelines”) or guidelines that do not vary materially from such
Designated Guidelines; (ii) such Mortgage Loans were in fact underwritten as
described in clause (i) above and were acquired by the Seller within 180 days
after origination; (iii) either (x) the Designated Guidelines were, at the
time
such Mortgage Loans were originated, used by the Seller in origination of
mortgage loans of the same type as the Mortgage Loans for the Seller’s own
account or (y) the Designated Guidelines were, at the time such Mortgage Loans
were underwritten, designated by the Seller on a consistent basis for use by
lenders in originating mortgage loans to be purchased by the Seller; and (iv)
the Seller employed, at the time such Mortgage Loans were acquired by the
Seller, pre-purchase or post-purchase quality assurance procedures (which may
involve, among other things, review of a sample of mortgage loans purchased
during a particular time period or through particular channels) designed to
ensure that Persons from which it purchased mortgage loans properly applied
the
underwriting criteria designated by the Seller.
Qualified
Insurer:
An
insurance company duly qualified as such under the laws of the states in which
the Mortgaged Property is located, duly authorized and licensed in such states
to transact the applicable insurance business and to write the insurance
provided, and approved as an insurer by Xxxxxx Xxx and Xxxxxxx Mac and whose
claims paying ability is rated in the two highest rating categories by any
of
the rating agencies with respect to primary mortgage insurance and in the two
highest rating categories by Best’s with respect to hazard and flood
insurance.
Qualified
Substitute Mortgage Loan:
A
mortgage loan substituted for a Deleted Mortgage Loan pursuant to the terms
of
this Agreement which must, on the date of such substitution, (i) have an
outstanding principal balance, after application of all scheduled payments
of
principal and interest due during or prior to the month of substitution, not
in
excess of the Stated Principal Balance of the Deleted Mortgage Loan as of the
Due Date in the calendar month during which the substitution occurs, (ii) have
a
Mortgage Interest Rate not less than (and not more than one percentage point
in
excess of) the Mortgage Interest Rate of the Deleted Mortgage Loan, (iii) have
a
Net Mortgage Rate not less than (and not more than one percentage point in
excess of) the Net Mortgage Rate of the Deleted Mortgage Loan, (iv) have a
remaining term to maturity not greater than (and not less than) that of the
Deleted Mortgage Loan, (v) have the same Due Date as the Due Date on the Deleted
Mortgage Loan, (vi) have a Loan-to-Value Ratio as of the date of substitution
equal to or lower than the Loan-to-Value Ratio of the Deleted Mortgage Loan
as
of such date, (vii) be covered under a Primary Insurance Policy if such
Qualified Substitute Mortgage Loan has a Loan-to-Value Ratio in excess of 80%
and the Deleted Mortgage Loan was covered under a Primary Insurance Policy,
(viii) conform to each representation and warranty set forth in Subsection
7.02
of this Agreement and (ix) be the same type of mortgage loan (i.e. first or
second, fixed or adjustable rate with the same Gross Margin and Index as the
Deleted Mortgage Loan). In the event that one or more mortgage loans are
substituted for one or more Deleted Mortgage Loans, the amounts described in
clause (i) hereof shall be determined on the basis of aggregate principal
balances, the Mortgage Interest Rates described in clause (ii) hereof shall
be
determined on the basis of weighted average Mortgage Interest Rates and shall
be
satisfied as to each such mortgage loan, the terms described in clause (iv)
shall be determined on the basis of weighted average remaining terms to
maturity, the Loan-to-Value Ratios described in clause (vi) hereof shall be
satisfied as to each such mortgage loan and, except to the extent otherwise
provided in this sentence, the representations and warranties described in
clause (viii) hereof must be satisfied as to each Qualified Substitute Mortgage
Loan or in the aggregate, as the case may be. In addition, the substitution
of
more than one Mortgage Loan pursuant to the previous sentence shall be subject
to the Purchaser’s approval in its sole discretion..
Rate/Term
Refinancing:
A
Refinanced Mortgage Loan, the proceeds of which are not in excess of the
existing first and second mortgage loan on the related Mortgaged Property,
related closing costs and proceeds to the Mortgagor not to exceed the lesser
of
two percent (2%) of the loan amount or $2,000, and were used to satisfy the
then
existing first and second mortgage loan of the Mortgagor on the related
Mortgaged Property and to pay related closing costs.
Reconstitution:
Any
Securitization Transaction or Whole Loan Transfer.
Reconstitution
Agreement:
The
agreement or agreements entered into by the Seller and the Purchaser and/or
certain third parties on the Reconstitution Date or Dates with respect to any
or
all of the Mortgage Loans serviced hereunder, in connection with a Whole Loan
Transfer or a Securitization Transaction as provided in Section 12.
Reconstitution
Date:
The
date or dates on which any or all of the Mortgage Loans serviced under this
Agreement shall be removed from this Agreement and reconstituted as part of
a
Whole Loan Transfer or Securitization Transaction pursuant to Section 12
hereof.
Record
Date:
With
respect to each Distribution Date, the last Business Day of the month
immediately preceding the month in which such Distribution Date
occurs.
Refinanced
Mortgage Loan:
A
Mortgage Loan the proceeds of which were not used to purchase the related
Mortgaged Property.
Regulation
AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
REMIC:
A “real
estate mortgage investment conduit” within the meaning of Section 860D of
the Code.
REMIC
Provisions:
Provisions of the federal income tax law relating to REMICs, which appear in
Sections 860A through 860G of the Code, and related provisions, and
proposed, temporary and final regulations and published rulings, notices and
announcements promulgated thereunder, as the foregoing may be in effect from
time to time.
REO
Account:
The
separate trust account or accounts created and maintained pursuant to this
Agreement which shall be entitled “HomeBanc Mortgage Corporation in trust for
the Purchaser, as of [date of acquisition of title], Fixed and Adjustable Rate
Mortgage Loans”. The REO Account may be a sub-account of the Custodial
Account.
REO
Disposition:
The
final sale by the Seller of any REO Property.
REO
Property:
A
Mortgaged Property acquired as a result of the liquidation of a Mortgage
Loan.
Repurchase
Price:
With
respect to any Mortgage Loan, a price equal to (a) the greater of (x) the
Purchase Price percentage used to calculate the Purchase Price as stated in
the
related Confirmation and (y) 100%, times the Stated Principal Balance of the
Mortgage Loan so repurchased plus (b) accrued interest thereon at the Mortgage
Interest Rate from the interest paid to date, to the first day of the month
following the date of repurchase, less amounts received in respect of such
repurchased Mortgage Loan which are being held in the Custodial Account for
distribution in connection with such Mortgage Loan, plus (c) any unreimbursed
Servicing Advances and Monthly Advances (including nonrecoverable Monthly
Advances) and any unpaid Servicing Fees allocable to such Mortgage Loan paid
by
any party other than the Seller, plus (d) any costs and expenses incurred by
the
Purchaser, the servicer, master servicer or any trustee in respect of the breach
or defect giving rise to the repurchase obligation including, without
limitation, any costs and damages incurred by any such party in connection
with
any violation by any such Mortgage Loan of any predatory or abusive lending
law.
Residential
Dwelling:
Any one
of the following: (i) a detached one-family dwelling, (ii) a detached two-
to
four-family dwelling, (iii) a one-family dwelling unit in a condominium project,
or (iv) a detached one-family dwelling in a planned unit development, none
of
which is manufactured housing, a co-operative, a commercial property, an
agricultural property, a mixed use property or a mobile home.
S&P:
Standard & Poor’s, a division of the XxXxxx-Xxxx Companies, Inc. or its
successor in interest.
Second
Lien:
With
respect to each Mortgaged Property, the lien of the mortgage, deed of trust
or
other instrument securing a Mortgage Note which creates a second lien on the
Mortgaged Property.
Securities
Act:
The
Securities Act of 1933, as amended.
Securitization
Transaction:
Any
transaction involving either (1) a sale or other transfer of some or all of
the
Mortgage Loans directly or indirectly to an issuing entity in connection with
an
issuance of publicly offered or privately placed, rated or unrated
mortgage-backed securities or (2) an issuance of publicly offered or privately
placed, rated or unrated securities, the payments on which are determined
primarily by reference to one or more portfolios of residential mortgage loans
consisting, in whole or in part, of some or all of the Mortgage
Loans.
Seller/Servicer
Information:
As
defined in Subsection 13.07(a).
Servicer:
As
defined in Subsection 13.03(c).
Servicing
Addendum:
The
terms and conditions attached hereto as Exhibit
8
which
will govern the servicing of the Mortgage Loans by Seller during the Preliminary
Servicing Period.
Servicing
Advances:
All
customary, reasonable and necessary “out-of-pocket” costs and expenses incurred
by the Seller in the performance of its servicing obligations, including, but
not limited to, the cost of (i) preservation, restoration and repair of a
Mortgaged Property, (ii) any enforcement or judicial proceedings with respect
to
a Mortgage Loan, including foreclosure actions and (iii) the management and
liquidation of REO Property.
Servicing
Criteria:
The
“servicing criteria” set forth in Item 1122(d) of Regulation AB, as such may be
amended from time to time.
Servicing
Fee:
With
respect to each Mortgage Loan, the amount of the annual servicing fee the
Purchaser shall pay to the Seller, which shall, for each month, be equal to
one-twelfth of the product of (a) the Servicing Fee Rate and (b) the unpaid
principal balance of the Mortgage Loan. Such fee shall be payable monthly,
computed on the basis of the same principal amount and period respectively
which
any related interest payment on a Mortgage Loan is computed. The obligation
of
the Purchaser to pay the Servicing Fee is limited to, and payable solely from,
the interest portion (including recoveries with respect to interest from
Liquidation Proceeds and other proceeds, to the extent permitted by
Subsection 11.05) of related Monthly Payment collected by the Seller, or as
otherwise provided under Subsection 11.05. If the Preliminary Servicing
Period includes any partial month, the Servicing Fee for such month shall be
pro
rated at a per diem rate based upon a 30-day month.
Servicing
Fee Rate:
With
respect to each Mortgage Loan, the per annum rate set forth in the related
Confirmation at which the Servicing Fee accrues.
Servicing
File:
With
respect to each Mortgage Loan, the file retained by the Seller which may be
in
electronic media so long as original documents are not required for purposes
of
realization of Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds
or proceeds in connection with a Final Recovery Determination, consisting of
all
documents in the Mortgage File which are not delivered to the Purchaser or
its
designee and copies of the Mortgage Loan Documents.
Servicing
Transfer Costs:
All
reasonable costs and expenses incurred by the Purchaser in connection with
the
transfer of servicing of the Mortgage Loans from Seller, including, without
limitation, any reasonable costs or expenses associated with the complete
transfer of all servicing data and the completion, correction or manipulation
of
such servicing data as may be required by the Purchaser (or any successor to
Seller appointed pursuant to Section 17) to correct any errors or
insufficiencies in the servicing data or otherwise to enable the Purchaser
(or
any successor to Seller appointed pursuant to Section 17) to service the
Mortgage Loans properly and effectively.
Stated
Principal Balance:
As to
each Mortgage Loan as of any date of determination, (i) the scheduled principal
balance of the Mortgage Loan as of the Cut-off Date after giving effect to
payments of principal due on or before such date, whether or not collected
from
the Mortgagor on or before such date, minus (ii) all amounts previously
distributed to the Purchaser with respect to the related Mortgage Loan
representing payments or recoveries of principal.
Static
Pool Information:
Static
pool information as described in Item 1105(a)(1)-(3) and 1105(c) of Regulation
AB.
Subprime
Underwriting Guidelines:
The
Underwriting Guidelines used by the Seller in connection the origination of
subprime Mortgage Loans.
Subcontractor:
Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of Mortgage Loans but performs one or more
discrete functions identified in Item 1122(d) of Regulation AB with respect
to
Mortgage Loans under the direction or authority of the Seller or a
Subservicer.
Subservicer:
Any
Person that services Mortgage Loans on behalf of the Seller or any Subservicer
and is responsible for the performance (whether directly or through Subservicers
or Subcontractors) of a substantial portion of the material servicing functions
required to be performed by the Seller under this Agreement or any
Reconstitution Agreement that are identified in Item 1122(d) of Regulation
AB.
Subservicing
Agreement:
The
written contract between the Seller and a Subservicer relating to servicing
and
administration of certain Mortgage Loans as provided in Subsection 11.34 of
Exhibit 8.
Tax
Service Contract:
A
contract maintained for the Mortgaged Property with a tax service provider
for
the purpose of obtaining current information from local taxing authorities
relating to such Mortgaged Property.
Third-Party
Originator:
Each
Person, other than a Qualified Correspondent, that originated Mortgage Loans
acquired by the Seller.
Underwriting
Guidelines:
The
Seller’s written underwriting guidelines in the form delivered to the Purchaser,
in effect with respect to the Mortgage Loans purchased by the Initial Purchaser
on the Initial Closing Date, as amended, supplemented or modified from time
to
time thereafter with prior written notice to the Initial Purchaser.
Whole
Loan Transfer:
Any
sale or transfer of some or all of the Mortgage Loans by the Purchaser to a
third party, which sale or transfer is not a Securitization
Transaction.
SECTION
2. Agreement
to Purchase.
The
Seller agrees to sell, and the Purchaser agrees to purchase, from time-to-time,
Mortgage Loans on a servicing retained basis, as set forth in the related
Confirmation, having an aggregate principal balance on the related Cut-off
Date
in an amount as set forth in the related Confirmation, or in such other amount
as agreed by the Purchaser and the Seller as evidenced by the actual aggregate
principal balance of the Mortgage Loans accepted by the Purchaser on the related
Closing Date.
SECTION
3. Mortgage
Loan Schedules.
The
Seller shall deliver the Mortgage Loan Schedule for a Mortgage Loan Package
to
be purchased on a particular Closing Date to the Purchaser at least five (5)
Business Days prior to the related Closing Date or within such other time frame
as agreed to between the Seller and the Purchaser and set forth in the related
Commitment Letter.
SECTION
4. Purchase
Price.
The
Purchase Price for each Mortgage Loan listed on the related Mortgage Loan
Schedule shall be the percentage of par as stated in the related Confirmation
(subject to adjustment as provided therein), multiplied by its Stated Principal
Balance as of the related Cut-off Date. If so provided in the related
Confirmation, portions of the Mortgage Loans shall be priced
separately.
In
addition to the Purchase Price as described above, the Initial Purchaser shall
pay to the Seller, at closing, accrued interest on the Stated Principal Balance
of each Mortgage Loan as of the related Cut-off Date at its Net Mortgage Rate
from the related Cut-off Date through the day prior to the related Closing
Date,
both inclusive.
The
Purchaser shall own and be entitled to receive with respect to each Mortgage
Loan purchased, (1) all scheduled principal due after the related Cut-off Date,
(2) all other recoveries of principal collected after the related Cut-off Date
(provided, however, that all scheduled payments of principal due on or before
the related Cut-off Date and collected by the Seller after the related Cut-off
Date shall belong to the Seller), (3) all payments of interest on the Mortgage
Loans net of the Servicing Fee (minus that portion of any such interest payment
that is allocable to the period prior to the related Cut-off Date), and (4)
all
Prepayment Charges on
the
Mortgage Loans collected on or after the Cut-Off Date.
The
Stated Principal Balance of each Mortgage Loan as of the related Cut-off Date
is
determined after application to the reduction of principal of payments of
principal due on or before the related Cut-off Date whether or not collected.
Therefore, for the purposes of this Agreement, payments of scheduled principal
and interest prepaid for a Due Date beyond the related Cut-off Date shall not
be
applied to the principal balance as of the related Cut-off Date. Such prepaid
amounts (minus the applicable Servicing Fee) shall be the property of the
Purchaser. The Seller shall deposit any such prepaid amounts into the Custodial
Account, which account is established for the benefit of the Purchaser, for
remittance by the Seller to the Purchaser on the first related Distribution
Date. All payments of principal and interest, less the applicable Servicing
Fee,
due on a Due Date following the related Cut-off Date shall belong to the
Purchaser.
SECTION
5. Examination
of Mortgage Files.
In
addition to the rights granted to the Initial Purchaser under the related
Confirmation to underwrite the Mortgage Loans and review the Mortgage Files
prior to the Closing Date, prior to the related Closing Date, the Seller shall
(a) deliver to the Purchaser or its designee in escrow, for examination with
respect to each Mortgage Loan to be purchased on such Closing Date, the related
Mortgage File, including the Assignment of Mortgage, pertaining to each Mortgage
Loan, or (b) make the related Mortgage File available to the Initial Purchaser
for examination at the Seller’s offices or such other location as shall
otherwise be agreed upon by the Initial Purchaser and the Seller upon providing
reasonable notice and at Purchaser’s expense. Such examination may be made by
the Initial Purchaser or its designee at any reasonable time before or after
the
related Closing Date. If the Initial Purchaser makes such examination prior
to
the related Closing Date and identifies any Mortgage Loans that do not conform
to the terms of the related Confirmation or the Seller’s Underwriting
Guidelines, such Mortgage Loans may, at the Initial Purchaser’s option, be
rejected for purchase by the Initial Purchaser. If not purchased by the Initial
Purchaser, such Mortgage Loans shall be deleted from the related Mortgage Loan
Schedule. The Initial Purchaser may, at its option and without notice to the
Seller, purchase all or part of any Mortgage Loan Package without conducting
any
partial or complete examination. The fact that the Initial Purchaser has
conducted or has determined not to conduct any partial or complete examination
of the Mortgage Files shall not affect the Initial Purchaser’s (or any of its
successors’) rights to demand repurchase or other relief or remedy provided for
in this Agreement.
The
Initial Purchaser shall have the opportunity to conduct a corporate due
diligence of the Seller, including but not limited to, on site review of the
Seller's facilities and discussions with the Seller's management. The Initial
Purchaser may conduct such review prior to or following the Initial Closing
Date. In addition, the Initial Purchaser may perform additional reviews as
the
Initial Purchaser, in its sole discretion, deems necessary. All such reviews
shall be at the sole expense of the Initial Purchaser.
SECTION
6. Conveyance
from Seller to Initial Purchaser.
| Subsection 6.01. |
Conveyance
of Mortgage Loans; Possession of Servicing
Files.
|
The
Seller, simultaneously with the payment of the Purchase Price, shall execute
and
deliver to the Initial Purchaser an Assignment and Conveyance with respect
to
the related Mortgage Loan Package in the form attached hereto as Exhibit
4.
The
Servicing File retained by the Seller with respect to each Mortgage Loan
pursuant to this Agreement shall be appropriately identified in the Seller’s
computer system to reflect clearly the sale of such related Mortgage Loan to
the
Purchaser. The Purchaser shall be entitled to receive all Prepayment Charges
required to be paid by a Mortgagor under the terms of any Mortgage Loan. The
Seller shall release from its custody the contents of any Servicing File
retained by it only in accordance with this Agreement, except when such release
is required in connection with a repurchase of any such Mortgage Loan pursuant
to Subsection 7.03, 7.04 or 7.05.
| Subsection 6.02. |
Books
and Records.
|
Record
title to each Mortgage and the related Mortgage Note as of the related Closing
Date shall be in the name of the Seller, the Purchaser or one or more designees
of the Purchaser, as the Purchaser shall designate. Record title to each
Mortgage and the related Mortgage Note shall be transferred by Seller to
Purchaser. Seller shall, at the option of Purchaser, either (i) prepare and
cause to be recorded the Assignment of Mortgage for each Mortgage Loan and
shall, promptly upon its receipt of each original recorded Assignment of
Mortgage from the applicable recording office, deliver the same to Purchaser,
or
(ii) prepare and deliver to Purchaser an original Assignment of Mortgage from
Seller to Purchaser or in blank. Seller shall bear the cost and expense related
to (i) providing all Assignments of Mortgages and endorsements of Mortgage
Notes
for any transfer of record title required hereunder with respect to the
obligations of the Mortgage Notes and the underlying security interest related
to each Mortgage Loan and (ii) recording fees and fees for title policy
endorsements.
Notwithstanding
the foregoing, beneficial ownership of each Mortgage and the related Mortgage
Note shall be vested solely in the Purchaser or the appropriate designee of
the
Purchaser, as the case may be. All rights arising out of the Mortgage Loans
including, but not limited to, all funds received by the Seller after the
related Cut-off Date on or in connection with a Mortgage Loan as provided in
Section 4 shall be vested in the Purchaser or one or more designees of the
Purchaser; provided, however, that all such funds received on or in connection
with a Mortgage Loan as provided in Section 4 shall be received and held by
the Seller in trust for the benefit of the Purchaser or the assignee of the
Purchaser, as the case may be, as the owner of the Mortgage Loans pursuant
to
the terms of this Agreement.
It
is the
express intention of the parties that the transactions contemplated by this
Agreement be, and be construed as, a sale of the Mortgage Loans by the Seller
and not a pledge of the Mortgage Loans by the Seller to the Purchaser to secure
a debt or other obligation of the Seller. Consequently, the sale of each
Mortgage Loan shall be reflected as a sale on the Seller’s business records, tax
returns and financial statements.
| Subsection 6.03. |
Delivery
of Mortgage Loan Documents.
|
The
Seller shall, at least five (5) Business Days prior to the related Closing
Date,
deliver and release to the Purchaser or its designee the Mortgage Loan Documents
with respect to each Mortgage Loan to be purchased and sold on such Closing
Date
and set forth on the related Mortgage Loan Schedule delivered with such Mortgage
Loan Documents.
The
Seller shall forward to the Purchaser or its designee original documents
evidencing
an assumption, modification, consolidation or extension of
any
Mortgage Loan entered into in accordance with this Agreement within two weeks
of
their execution, provided, however, that the Seller shall provide the Purchaser
or its designee with a certified true copy of any such document submitted for
recordation within two weeks of its execution, and shall provide the original
of
any document submitted for recordation or a copy of such document certified
by
the appropriate public recording office to be a true and complete copy of the
original within ninety days of its submission for recordation. If in connection
with any assumption, modification, consolidation or extension of any Mortgage
Loan, the applicable Seller has not delivered or caused to be delivered any
original document evidencing an assumption, modification, consolidation or
extension with evidence of recording thereon because of a delay caused by the
public recording office where such document has been delivered for recordation
or because such document has been lost or because such public recording office
retains the original recorded document, the Seller shall deliver or cause to
be
delivered to the Purchaser, (i) in the case of a delay caused by the public
recording office, a copy of such document certified by the applicable Seller,
escrow agent, title insurer or closing attorney to be a true and complete copy
of the original recorded document and (ii) in the case where a public recording
office retains the original recorded document or in the case where a document
is
lost after recordation in a public recording office, a copy of such document
certified by such public recording office to be a true and complete copy of
the
original recorded document;
In
the
event that the Seller does not comply with the delivery requirements set forth
in this Subsection 6.03 with respect to any Mortgage Loan, the related
Mortgage Loan shall, upon request of the Purchaser, be repurchased by the Seller
at the Repurchase Price in accordance with Subsection 7.03.
| SECTION 7. |
Representations,
Warranties
and Covenants of the Seller; Remedies for Breach.
|
| Subsection 7.01. |
Representations
and Warranties Respecting the Seller.
|
The
Seller represents, warrants and covenants to the Purchaser as of the Initial
Closing Date and each subsequent Closing Date or as of such date specifically
provided herein or in the applicable Assignment and Conveyance:
(i) The
Seller is duly organized, validly existing and in good standing under the laws
of the state of its formation and has all licenses necessary to carry on its
business as now being conducted. It is licensed in, qualified to transact
business in and is in good standing under the laws of the state in which any
Mortgaged Property is located and is and will remain in compliance with the
laws
of each state in which any Mortgaged Property is located to the extent necessary
to ensure the enforceability of each Mortgage Loan and the servicing of the
Mortgage Loan in accordance with the terms of this Agreement. No licenses or
approvals obtained by Seller have been suspended or revoked by any court,
administrative agency, arbitrator or governmental body and no proceedings are
pending which might result in such suspension or revocation;
(ii) The
Seller has the full power and authority to hold each Mortgage Loan, to sell
each
Mortgage Loan, and to execute, deliver and perform, and to enter into and
consummate, all transactions contemplated by this Agreement. The Seller has
duly
authorized the execution, delivery and performance of this Agreement, has duly
executed and delivered this Agreement, and this Agreement, assuming due
authorization, execution and delivery by the Purchaser, constitutes a legal,
valid and binding obligation of the Seller, enforceable against it in accordance
with its terms except as the enforceability thereof may be limited by
bankruptcy, insolvency or reorganization;
(iii) The
execution and delivery of this Agreement by the Seller and the performance
of
and compliance with the terms of this Agreement will not violate the Seller’s
articles of incorporation or by-laws or constitute a default under or result
in
a breach or acceleration of, any material contract, agreement or other
instrument to which the Seller is a party or which may be applicable to the
Seller or its assets;
(iv) The
Seller is not in violation of, and the execution and delivery of this Agreement
by the Seller and its performance and compliance with the terms of this
Agreement will not constitute a violation with respect to, any order or decree
of any court or any order or regulation of any federal, state, municipal or
governmental agency having jurisdiction over the Seller or its assets, which
violation might have consequences that would materially and adversely affect
the
condition (financial or otherwise) or the operation of the Seller or its assets
or might have consequences that would materially and adversely affect the
performance of its obligations and duties hereunder;
(v) The
Seller is an approved seller/servicer for Xxxxxx Xxx and Xxxxxxx Mac in good
standing and is a HUD approved mortgagee pursuant to Section 203 of the
National Housing Act. No event has occurred, including but not limited to a
change in insurance coverage, which would make the Seller unable to comply
with
Xxxxxx Mae, Xxxxxxx Mac or HUD eligibility requirements or which would require
notification to Xxxxxx Mae, Xxxxxxx Mac or HUD;
(vi) The
Seller does not believe, nor does it have any reason or cause to believe, that
it cannot perform each and every covenant contained in this
Agreement;
(vii) The
Mortgage Loan Documents and any other documents required to be delivered with
respect to each Mortgage Loan have been delivered to the Purchaser all in
compliance with the specific requirements of this Agreement;
(viii) Immediately
prior to the payment of the Purchase Price for each Mortgage Loan, the Seller
was the owner of record of the related Mortgage and the indebtedness evidenced
by the related Mortgage Note and upon the payment of the Purchase Price by
the
Purchaser, in the event that the Seller retains record title, the Seller shall
retain such record title to each Mortgage, each related Mortgage Note and the
related Mortgage Files with respect thereto in trust for the Purchaser as the
owner thereof and only for the purpose of servicing and supervising the
servicing of each Mortgage Loan;
(ix) There
are
no actions or proceedings against, or investigations of, the Seller before
any
court, administrative agency or other tribunal (A) that might prohibit its
entering into this Agreement, (B) seeking to prevent the sale of the Mortgage
Loans or the consummation of the transactions contemplated by this Agreement
or
(C) that might prohibit or materially and adversely affect the performance
by
the Seller of its obligations under, or the validity or enforceability of,
this
Agreement;
(x) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Seller
of,
or compliance by the Seller with, this Agreement or the consummation of the
transactions contemplated by this Agreement, except for such consents,
approvals, authorizations or orders, if any, that have been obtained prior
to
the related Closing Date;
(xi) The
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Seller, and the transfer, assignment and
conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to
this Agreement are not subject to the bulk transfer or any similar statutory
provisions;
(xii) The
information delivered by the Seller to the Purchaser with respect to the
Seller’s loan loss, foreclosure and delinquency experience for the twelve (12)
months immediately preceding the Initial Closing Date on mortgage loans
underwritten to the same standards as the Mortgage Loans and covering mortgaged
properties similar to the Mortgaged Properties, is true and correct in all
material respects;
(xiii) Neither
this Agreement nor any written statement, report or other document prepared
and
furnished or to be prepared and furnished by the Seller pursuant to this
Agreement or in connection with the transactions contemplated hereby contains
any untrue statement of material fact or omits to state a material fact
necessary to make the statements contained herein or therein not
misleading;
(xiv) The
transfer of the Mortgage Loans shall be treated as a sale on the books and
records of Seller, and Seller has determined that, and will treat, the
disposition of the Mortgage Loans pursuant to this Agreement for tax and
accounting purposes as a sale. Seller shall maintain a complete set of books
and
records for each Mortgage Loan which shall be clearly marked to reflect the
ownership of each Mortgage Loan by Purchaser;
(xv) The
consideration received by the Seller upon the sale of the Mortgage Loans
constitutes fair consideration and reasonably equivalent value for such Mortgage
Loans; and
(xvi) Seller
is
solvent and will not be rendered insolvent by the consummation of the
transactions contemplated hereby. The Seller is not transferring any Mortgage
Loan with any intent to hinder, delay or defraud any of its
creditors.
| Subsection 7.02. |
Representations
and Warranties Regarding Individual Mortgage
Loans.
|
The
Seller hereby represents and warrants to the Purchaser that, as to each Mortgage
Loan, as of the related Closing Date for such Mortgage Loan:
(i) Mortgage
Loans as Described.
The
information set forth in the related Mortgage Loan Schedule and the Mortgage
Loan data delivered to the Purchaser in the Data File is complete, true and
correct. The Mortgage Loan is in compliance with all requirements set forth
in
the related Confirmation, and the characteristics of the related Mortgage Loan
Package as set forth in the related Confirmation are true and
correct;
(ii) Payments
Current.
All
payments required to be made up to the close of business on the Closing Date
for
such Mortgage Loan under the terms of the Mortgage Note have been made; unless
a
Mortgage Loan is a Buydown Mortgage Loan, the Seller has not advanced funds,
or
induced, solicited or knowingly received any advance of funds from a party
other
than the owner of the related Mortgaged Property, directly or indirectly, for
the payment of any amount required by the Mortgage Note or Mortgage. Unless
otherwise set forth in the related Commitment Letter and Mortgage Loan Schedule,
there has been no delinquency, exclusive of any period of grace, in any payment
by the Mortgagor thereunder since the origination of the Mortgage
Loan;
(iii) No
Outstanding Charges.
There
are no delinquent taxes, ground rents, water charges, sewer rents, assessments,
insurance premiums, leasehold payments, including assessments payable in future
installments or other outstanding charges affecting the related Mortgaged
Property;
(iv) Location
and Type of Mortgaged Property.
The
Mortgaged Property is located in the state identified in the related Mortgage
Loan Schedule and is improved by a Residential Dwelling;
(v) Original
Terms Unmodified.
The
terms of the Mortgage Note and the Mortgage have not been impaired, waived,
altered or modified in any respect, except by written instruments, recorded
in
the applicable public recording office if necessary to maintain the lien
priority of the Mortgage, and which have been delivered to the Purchaser; the
substance of any such waiver, alteration or modification has been approved
by
the insurer under the Primary Insurance Policy or LPMI Policy, if any, and
the
title insurer, to the extent required by the related policy, and is reflected
on
the related Mortgage Loan Schedule. No instrument of waiver, alteration or
modification has been executed, and no Mortgagor has been released, in whole
or
in part, except in connection with an assumption agreement approved by the
insurer under the Primary Insurance Policy or LPMI Policy, if any, the title
insurer, to the extent required by the policy, and which assumption agreement
has been delivered to the Purchaser and the terms of which are reflected in
the
related Mortgage Loan Schedule;
(vi) No
Defenses.
The
Mortgage Note and the Mortgage are not subject to any right of rescission, set
off, counterclaim or defense, including the defense of usury, nor will the
operation of any of the terms of the Mortgage Note and/or the Mortgage, or
the
exercise of any right thereunder, render the Mortgage unenforceable, in whole
or
in part, or subject to any right of rescission, set off, counterclaim or
defense, including the defense of usury and no such right of rescission, set
off, counterclaim or defense has been asserted with respect
thereto;
(vii) Conformance
with Underwriting Guidelines and Agency Standards.
The
Mortgage Loan was underwritten in accordance with the Underwriting Guidelines
of
the Seller in effect at the time the Mortgage Loan was originated; and the
Mortgage Note and Mortgage are on forms acceptable to Xxxxxx Xxx and Xxxxxxx
Mac;
(viii) Hazard
Insurance. All
buildings upon the Mortgaged Property are insured by a Qualified Insurer
acceptable to Xxxxxx Mae and Xxxxxxx Mac against loss by fire, hazards of
extended coverage and such other hazards as are customary in the area where
the
Mortgaged Property is located, in an amount not less than the lesser of (i)
100%
of the replacement cost of all improvements to the Mortgaged Property and (ii)
either (A) the outstanding principal balance of the Mortgage Loan with respect
to each first lien Mortgage Loan or (B) with respect to each Second Lien
Mortgage Loan, the sum of the outstanding principal balance of the related
first
lien mortgage loan and the outstanding principal balance of the Second Lien
Mortgage Loan; provided, however, in no event shall the amount of insurance
be
less than the amount necessary to avoid the operation of any co-insurance
provisions with respect to the Mortgaged Property. All
such
insurance policies contain a standard mortgagee clause naming the Seller, its
successors and assigns as mortgagee and all premiums thereon have been paid.
If
the Mortgaged Property is in an area identified on a Flood Hazard Map or Flood
Insurance Rate Map issued by the Federal Emergency Management Agency as having
special flood hazards (and such flood insurance has been made available) a
flood
insurance policy meeting the requirements of the current guidelines of the
Federal Insurance Administration is in effect which policy conforms to the
requirements of Xxxxxx Mae and Xxxxxxx Mac. The Mortgage obligates the Mortgagor
thereunder to maintain all such insurance at the Mortgagor’s cost and expense,
and on the Mortgagor’s failure to do so, authorizes the holder of the Mortgage
to maintain such insurance at Mortgagor’s cost and expense and to seek
reimbursement therefor from the Mortgagor;
(ix) Compliance
with Applicable Laws.
Any and
all requirements of any federal, state or local law including, without
limitation, usury, truth in lending, real estate settlement procedures, consumer
credit protection, equal credit opportunity, fair housing, disclosure laws
and
all predatory, abusive and fair lending laws applicable to the origination
and
servicing of mortgage loans of a type similar to the Mortgage Loans have been
complied with and the consummation of the transactions contemplated hereby
will
not involve the violation of any such laws, and the Seller shall maintain in
its
possession, available for the inspection of the Purchaser or its designee,
and
shall deliver to the Purchaser or its designee, upon two Business Days’ request,
evidence of compliance with such requirements;
(x) No
Satisfaction of Mortgage.
Subject
to representation and warranty (xi) below, the Mortgage has not been satisfied,
cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged
Property has not been released from the lien of the Mortgage, in whole or in
part, nor has any instrument been executed that would effect any such
satisfaction, cancellation, subordination, rescission or release;
(xi) Valid
Lien.
The
related Mortgage is properly recorded and is a valid, existing and enforceable
(A) first lien and first priority security interest with respect to each
Mortgage Loan which is indicated by the Seller to be a First Lien (as reflected
on the Mortgage Loan Schedule), or (B) second lien and second priority security
interest with respect to each Mortgage Loan which is indicated by the Seller
to
be a Second Lien (as reflected on the Mortgage Loan Schedule), in either case,
on the Mortgaged Property, including all improvements on the Mortgaged Property
subject only to (a) the lien of current real property taxes and assessments
not
yet due and payable, (b) covenants, conditions and restrictions, rights of
way,
easements and other matters of the public record as of the date of recording
being acceptable to mortgage lending institutions generally and specifically
referred to in the lender’s title insurance policy delivered to the originator
of the Mortgage Loan and which do not adversely affect the Appraised Value
of
the Mortgaged Property, (c) other matters to which like properties are commonly
subject which do not materially interfere with the benefits of the security
intended to be provided by the Mortgage or the use, enjoyment, value or
marketability of the related Mortgaged Property and (d) with respect to each
Mortgage Loan which is indicated by the Seller to be a Second Lien Mortgage
Loan
(as reflected on the Mortgage Loan Schedule) a First Lien on the Mortgaged
Property. Any security agreement, chattel mortgage or equivalent document
related to and delivered in connection with the Mortgage Loan establishes and
creates a valid, existing and enforceable (A) first lien and first priority
security interest with respect to each Mortgage Loan which is indicated by
the
Seller to be a First Lien (as reflected on the Mortgage Loan Schedule) or (B)
second lien and second priority security interest with respect to each Mortgage
Loan which is indicated by the Seller to be a Second Lien Mortgage Loan (as
reflected on the Mortgage Loan Schedule), in either case, on the property
described therein and the Seller has full right to sell and assign the same
to
the Purchaser. The Mortgaged Property was not, as of the date of origination
of
the Mortgage Loan, subject to a mortgage, deed of trust, deed to secure debt
or
other security instrument creating a lien subordinate to the lien of the
Mortgage;
(xii) Validity
of Mortgage Loan Documents.
The
Mortgage Note and the related Mortgage are genuine and each is the legal, valid
and binding obligation of the maker thereof, enforceable in accordance with
its
terms;
(xiii) Legal
Capacity.
All
parties to the Mortgage Note and the Mortgage had legal capacity to enter into
the Mortgage Loan and to execute and deliver the Mortgage Note and the Mortgage,
and the Mortgage Note and the Mortgage have been duly and properly executed
by
such parties. The Mortgagor is a natural person;
(xiv) Full
Disbursement of Proceeds.
Except
with respect to de minimis completion escrows, the proceeds of the Mortgage
Loan
have been fully disbursed to or for the account of the Mortgagor and there
is no
obligation for the Mortgagee to advance additional funds thereunder and any
and
all requirements as to completion of any on-site or off-site improvement and
as
to disbursements of any escrow funds therefor have been complied with. All
costs, fees and expenses incurred in making or closing the Mortgage Loan and
the
recording of the Mortgage have been paid, and the Mortgagor is not entitled
to
any refund of any amounts paid or due to the Mortgagee pursuant to the Mortgage
Note or Mortgage;
(xv) Ownership.
The
Seller is the sole legal, beneficial and equitable owner of the Mortgage Note
and the Mortgage. The Seller has full right and authority under all governmental
and regulatory bodies having jurisdiction over such Seller, subject to no
interest or participation of, or agreement with, any party, to transfer and
sell
the Mortgage Loan to the Purchaser pursuant to this Agreement free and clear
of
any encumbrance or right of others, equity, lien, pledge, charge, mortgage,
claim, participation interest or security interest of any nature (collectively,
a “Lien”); and immediately upon the transfers and assignments herein
contemplated, the Seller shall have transferred and sold all of its right,
title
and interest in and to each Mortgage Loan and the Purchaser will hold good,
marketable and indefeasible title to, and be the owner of, each Mortgage Loan
subject to no Lien;
(xvi) Doing
Business.
All
parties which have had any interest in the Mortgage Loan, whether as originator,
mortgagee, assignee, pledgee or otherwise, are (or, during the period in which
they held and disposed of such interest, were): (A) organized under the laws
of
such state, or (B) qualified to do business in such state, or (C) federal
savings and loan associations or national banks having principal offices in
such
state, or (D) not doing business in such state so as to require qualification
or
licensing, or (E) not otherwise required to be licensed in such state. All
parties which have had any interest in the Mortgage Loan were in compliance
with
any and all applicable “doing business” and licensing requirements of the laws
of the state wherein the Mortgaged Property is located or were not required
to
be licensed in such state;
(xvii) Title
Insurance.
The
Mortgage Loan is covered by an American Land Title Association (“ALTA”) ALTA
lender’s title insurance policy acceptable to Xxxxxx Xxx and Xxxxxxx Mac (which,
in the case of an Adjustable Rate Mortgage Loan has an adjustable rate mortgage
endorsement in the form of ALTA 6.0 or 6.1), issued by a title insurer
acceptable to Xxxxxx Xxx and Xxxxxxx Mac and qualified to do business in the
jurisdiction where the Mortgaged Property is located, insuring (subject to
the
exceptions contained above in (xi)(a) and (b) and, with respect to each Mortgage
Loan which is indicated by the Seller to be a Second Lien Mortgage Loan (as
reflected on the Mortgage Loan Schedule) clause (d)) the Seller, its successors
and assigns as to the first priority lien of the Mortgage in the original
principal amount of the Mortgage Loan and, with respect to any Adjustable Rate
Mortgage Loan, against any loss by reason of the invalidity or unenforceability
of the lien resulting from the provisions of the Mortgage providing for
adjustment in the Mortgage Interest Rate and Monthly Payment. Additionally,
such
lender’s title insurance policy affirmatively insures ingress and egress to and
from the Mortgaged Property, and against encroachments by or upon the Mortgaged
Property or any interest therein. The Seller is the sole insured of such
lender’s title insurance policy, and such lender’s title insurance policy is in
full force and effect and will be in full force and effect upon the consummation
of the transactions contemplated by this Agreement. No claims have been made
under such lender’s title insurance policy, and no prior holder of the related
Mortgage, including the Seller, has done, by act or omission, anything which
would impair the coverage of such lender’s title insurance policy;
(xviii) No
Defaults.
There
is no default, breach, violation or event of acceleration existing under the
Mortgage or the Mortgage Note and no event which, with the passage of time
or
with notice and the expiration of any grace or cure period, would constitute
a
default, breach, violation or event of acceleration, and the Seller has not
waived any default, breach, violation or event of acceleration. With respect
to
each Mortgage Loan which is indicated by the Seller to be a Second Lien Mortgage
Loan (as reflected on the Mortgage Loan Schedule) (i) the First Lien is in
full
force and effect, (ii) there is no default, breach, violation or event of
acceleration existing under such First Lien mortgage or the related mortgage
note, (iii) no event which, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a default, breach,
violation or event of acceleration thereunder, and either (A) the First Lien
mortgage contains a provision which allows or (B) applicable law requires,
the
mortgagee under the Second Lien Mortgage Loan to receive notice of, and affords
such mortgagee an opportunity to cure any default by payment in full or
otherwise under the First Lien mortgage;
(xix) No
Mechanics’ Liens.
There
are no mechanics’ or similar liens or claims which have been filed for work,
labor or material (and no rights are outstanding that under law could give
rise
to such lien) affecting the related Mortgaged Property which are or may be
liens
prior to, or equal or coordinate with, the lien of the related
Mortgage;
(xx) Origination.
The
Mortgage Loan was originated by the Seller or by a savings and loan association,
a savings bank, a commercial bank or similar banking institution which is
supervised and examined by a federal or state authority, or by a mortgagee
approved as such by the Secretary of HUD;
(xxi) Payment
Terms.
Payments on the Mortgage Loan shall commence (with respect to any newly
originated Mortgage Loans) or commenced no more than sixty days after the
proceeds of the Mortgage Loan were disbursed. The Mortgage Loan bears interest
at the Mortgage Interest Rate. With respect to each Mortgage Loan, the Mortgage
Note is payable on the first day of each month in Monthly Payments, which,
(A)
in the case of a Fixed Rate Mortgage Loan, are sufficient to fully amortize
the
original principal balance over the original term thereof (other than with
respect to a Mortgage Loan identified on the related Mortgage Loan Schedule
as
an interest-only Mortgage Loan during the interest-only period or a Mortgage
Loan which is identified on the related Mortgage Loan Schedule as a Balloon
Mortgage Loan) and to pay interest at the related Mortgage Interest Rate, and
(B) in the case of an Adjustable Rate Mortgage Loan, are changed on each
Adjustment Date, and in any case, are sufficient to fully amortize the original
principal balance over the original term thereof (other than with respect to
a
Mortgage Loan identified on the related Mortgage Loan Schedule as an
interest-only Mortgage Loan during the interest-only period or a Mortgage Loan
which is identified on the related Mortgage Loan Schedule as a Balloon Mortgage
Loan) and to pay interest at the related Mortgage Interest Rate. The Index
for
each Adjustable Rate Mortgage Loan is as defined in the related Mortgage Loan
Schedule. With respect to each Mortgage Loan identified on the Mortgage Loan
Schedule as an interest-only Mortgage Loan, the interest-only period shall
not
exceed the period specified on the Mortgage Loan Schedule and following the
expiration of such interest-only period, the remaining Monthly Payments shall
be
sufficient to fully amortize the original principal balance over the remaining
term of the Mortgage Loan. With respect to each Balloon Mortgage Loan, the
Mortgage Note requires a monthly payment which is sufficient to fully amortize
the original principal balance over the original term thereof and to pay
interest at the related Mortgage Interest Rate and requires a final Monthly
Payment substantially greater than the preceding monthly payment which is
sufficient to repay the remaining unpaid principal balance of the Balloon
Mortgage Loan as of the Due Date of such Monthly Payment. No Balloon Mortgage
Loan has an original stated maturity of less than seven (7) years. The Mortgage
Note does not permit negative amortization. No Mortgage Loan had an original
term to maturity of more than thirty (30) years;
(xxii) Origination
and Collection Practices; Escrow Deposits.
The
origination, servicing and collection practices used by the Seller with respect
to each Mortgage Note and Mortgage, including without limitation the
establishment, maintenance and servicing of the Escrow Accounts and Escrow
Payments, if any, since origination have been in all respects legal, proper,
prudent and customary in the mortgage origination and servicing industry. The
Mortgage Loan has been serviced by the Seller and any predecessor servicer
in
accordance with all applicable laws, rules and regulations, the terms of the
Mortgage Note and Mortgage, and the Xxxxxx Xxx and Xxxxxxx Mac servicing guides.
With respect to escrow deposits and Escrow Payments (other than with respect
to
each Mortgage Loan which is indicated by the Seller to be a Second Lien Mortgage
Loan and for which the mortgagee under the First Lien is collecting Escrow
Payments (as reflected on the Mortgage Loan Schedule)), if any, all such
payments are in the possession of, or under the control of, the Seller and
there
exist no deficiencies in connection therewith for which customary arrangements
for repayment thereof have not been made. No escrow deposits or Escrow Payments
or other charges or payments due the Seller have been capitalized under any
Mortgage or the related Mortgage Note and, except with respect to de minimis
completion escrows, no such escrow deposits or Escrow Payments are being held
by
the Seller for any work on a Mortgaged Property which has not been
completed;
(xxiii) Mortgaged
Property Undamaged.
The
Mortgaged Property is free of damage and waste and is in good repair, and there
is no proceeding pending or, to the best of Seller’s knowledge, threatened for
the total or partial condemnation thereof nor is such a proceeding currently
occurring;
(xxiv) Customary
Provisions.
The
Mortgage and related Mortgage Note contain customary and enforceable provisions
such as to render the rights and remedies of the holder thereof adequate for
the
realization against the Mortgaged Property of the benefits of the security
provided thereby, including, (a) in the case of a Mortgage designated as a
deed
of trust, by trustee’s sale, and (b) otherwise by judicial foreclosure. The
Mortgaged Property has not been subject to any bankruptcy proceeding or
foreclosure proceeding and the Mortgagor has not filed for protection under
applicable bankruptcy laws. There is no homestead or other exemption available
to the Mortgagor which would interfere with the right to sell the Mortgaged
Property at a trustee’s sale or the right to foreclose the Mortgage; The
Mortgagor has not notified the Seller and the Seller has no knowledge of any
relief requested or allowed to the Mortgagor under the Servicemembers Civil
Relief Act;
(xxv) Appraisal.
Unless
otherwise set forth on the Mortgage Loan Schedule, the Mortgage File contains
an
appraisal of the related Mortgaged Property which, (a) with respect to First
Lien Mortgage Loans, was on appraisal form 1004 or form 2055 with an interior
inspection, or (b) with respect to Second Lien Mortgage Loans, was on appraisal
form 704, 2065 or 2055 with an exterior only inspection, and (c) with respect
to
(a) or (b) above, was made and signed, prior to the approval of the Mortgage
Loan application, by an appraiser, duly appointed by the Seller, who had no
interest, direct or indirect in the Mortgaged Property or in any loan made
on
the security thereof, whose compensation is not affected by the approval or
disapproval of the Mortgage Loan and who met the minimum qualifications of
Xxxxxx Mae and Xxxxxxx Mac. Each appraisal of the Mortgage Loan was made in
accordance with the relevant provisions of the Financial Institutions Reform,
Recovery, and Enforcement Act of 1989;
(xxvi) Deeds
of Trust.
In the
event the Mortgage constitutes a deed of trust, a trustee, duly qualified under
applicable law to serve as such, has been properly designated and currently
so
serves and is named in the Mortgage, and no fees or expenses are or will become
payable by the Purchaser to the trustee under the deed of trust, except in
connection with a trustee’s sale after default by the Mortgagor;
(xxvii) Construction
or Rehabilitation of Mortgaged Property.
No
Mortgage Loan was made in connection with (a) the construction or rehabilitation
of a Mortgaged Property other than construction-to-permanent mortgage loans
which have been converted to “permanent” mortgage loans or (b) facilitating the
trade-in or exchange of a Mortgaged Property;
(xxviii) LTV;
CLTV.
The
Loan-to-Value Ratio of any Mortgage Loan at origination was not more than 100%
and the CLTV of any Mortgage Loan at origination was not more than 100%; Each
Mortgage Loan (other than any Mortgage Loan underwritten pursuant to the
Seller’s Subprime Underwriting Guidelines) with an original Loan-to-Value Ratio
at origination greater than 80% is and will be subject to a Primary Insurance
Policy, issued by a Qualified Insurer, which insures that portion of the
Mortgage Loan in excess of the portion of the Appraised Value of the Mortgaged
Property as required by Xxxxxx Mae. All provisions of such Primary Insurance
Policy have been and are being complied with, such policy is in full force
and
effect, and all premiums due thereunder have been paid. Any Mortgage subject
to
any such Primary Insurance Policy that is not an LPMI Policy obligates the
Mortgagor thereunder to maintain such insurance and to pay all premiums and
charges in connection therewith and the Mortgage Interest Rate for the Mortgage
Loan does not include any such insurance premium. If a Mortgage Loan is
identified on the Mortgage Loan Schedule as subject to a Lender Paid Mortgage
Insurance Policy, such policy insures that portion of the Mortgage Loan set
forth in the LPMI Policy. All provisions of any such LPMI Policy have been
and
are being complied with, such policy is in full force and effect, and all
premiums due thereunder have been paid;
(xxix) Occupancy
of the Mortgaged Property.
The
Mortgaged Property is lawfully occupied under applicable law; all inspections,
licenses and certificates required to be made or issued with respect to all
occupied portions of the Mortgaged Property and, with respect to the use and
occupancy of the same, including but not limited to certificates of occupancy
and fire underwriting certificates, have been made or obtained from the
appropriate authorities. No improvement located on or being part of any
Mortgaged Property is in violation of any applicable zoning and subdivision
law,
ordinance or regulation;
(xxx) No
Error, Omission, Fraud etc.
No
error, omission, misrepresentation, negligence, fraud or similar occurrence
with
respect to a Mortgage Loan has taken place on the part of any person, including
without limitation the Mortgagor, any appraiser, any builder or developer,
or
any other party involved in the origination of the Mortgage Loan or in the
application of any insurance in relation to such Mortgage Loan;
(xxxi) Consolidation
of Advances;
Lien
Priority. Any principal advances made to the Mortgagor prior to the Cut-off
Date
have been consolidated with the outstanding principal amount secured by the
Mortgage, and the secured principal amount, as consolidated, bears a single
interest rate and single repayment term reflected on the Mortgage Loan Schedule.
The lien of the Mortgage securing the consolidated principal amount is expressly
insured as having (A) first lien priority with respect to each Mortgage Loan
which is indicated by the Seller to be a First Lien (as reflected on the
Mortgage Loan Schedule), or (B) second lien priority with respect to each
Mortgage Loan which is indicated by the Seller to be a Second Lien Mortgage
Loan
(as reflected on the Mortgage Loan Schedule), in either case, by a title
insurance policy, an endorsement to the policy insuring the mortgagee’s
consolidated interest or by other title evidence acceptable to Xxxxxx Xxx and
Xxxxxxx Mac. The consolidated principal amount does not exceed the original
principal amount of the Mortgage Loan;
(xxxii) Environmental
Matters.
The
Mortgaged Property is in material compliance with all applicable environmental
laws pertaining to environmental hazards including, without limitation,
asbestos, and neither the Seller nor, to the Seller’s knowledge, the related
Mortgagor, has received any notice of any violation or potential violation
of
such law;
(xxxiii) HOEPA.
No
Mortgage Loan is (a) subject to the provisions of the Homeownership and Equity
Protection Act of 1994 as amended (“HOEPA”), or has an “annual percentage rate”
or “total points and fees” payable by the borrower (as each such term is defined
under HOEPA) that equal or exceed the applicable thresholds defined under HOEPA
(Section 32 of Regulation Z, 12 C.F.R. Section 226.32(a)(1)(i) and (ii)), (b)
a
“high cost” mortgage loan, “covered” mortgage loan (excluding home loans defined
as “covered home loans” in the New Jersey Home Ownership Security Act of 2002
that were originated between November 26, 2003 and July 7, 2004), “high risk
home” mortgage loan, or “predatory” mortgage loan or any other comparable term,
no matter how defined under any federal, state or local law, (c) subject to
any
comparable federal, state or local statutes or regulations, or any other statute
or regulation providing for heightened regulatory scrutiny, assignee liability
to holders of such mortgage loans or additional legal liability for mortgage
loans having high interest rates, points and/or fees, or (d) a High Cost Loan
or
Covered Loan, as applicable (as such terms are defined in the current Standard
& Poor’s LEVELS® Glossary Revised, Appendix E);
(xxxiv)
Due-On-Sale.
Each
Mortgage contains an enforceable provision for the acceleration of the payment
of the unpaid principal balance of the related Mortgage Loan in the event the
related Mortgaged Property is sold or transferred without the prior consent
of
the mortgagee thereunder;
(xxxv) Second
Liens.
With
respect to each Mortgage Loan which is a Second Lien, (i) the related First
Lien
does not provide for negative amortization, (ii) either no consent for the
Mortgage Loan is required by the holder of the First Lien or such consent has
been obtained and is contained in the Mortgage File and (iii) such Second Lien
is on a Residential Dwelling that is (or will be) the principal residence of
the
Mortgagor upon origination of the Second Lien;
(xxxvi) Prepayment
Charges in Mortgage Loan Documents.
The
Mortgage Loan Documents with respect to each Mortgage Loan subject to Prepayment
Charges specifically authorizes such Prepayment Charges to be collected, such
Prepayment Charges are permissible and enforceable in accordance with the terms
of the related Mortgage Loan Documents and all applicable federal, state and
local laws (except to the extent that the enforceability thereof may be limited
by bankruptcy, insolvency, moratorium, receivership and other similar laws
relating to creditors’ rights generally or the collectability thereof may be
limited due to acceleration in connection with a foreclosure) and each
Prepayment Charge was originated in compliance with all applicable federal,
state and local laws;
(xxxvii) Compliance
with Patriot Act.
The
Seller has complied with all applicable anti-money laundering laws and
regulations (collectively, the “Anti-Money Laundering Laws”). If required by the
Anti-Money Laundering Laws, the Seller has established an anti-money laundering
compliance program as required by the Anti-Money Laundering Laws, has conducted
the requisite due diligence in connection with the origination of each Mortgage
Loan for purposes of the Anti-Money Laundering Laws, including with respect
to
the legitimacy of the applicable Mortgagor and the origin of the assets used
by
the said Mortgagor to purchase the property in question, and maintains, and
will
maintain, sufficient information to identify the applicable Mortgagor for
purposes of the Anti-Money Laundering Laws; no Mortgage Loan is subject to
nullification pursuant to Executive Order 13224 (the “Executive Order”) or the
regulations promulgated by the Office of Foreign Assets Control of the United
States Department of the Treasury (the “OFAC Regulations”) or in violation of
the Executive Order or the OFAC Regulations, and no Mortgagor is subject to
the
provisions of such Executive Order or the OFAC Regulations nor listed as a
“blocked person” for purposes of the OFAC Regulations.;
(xxxviii) MERS
Mortgage Loans.
No
Mortgage Loan is a MERS Mortgage Loan;
(xxxix) FACT
Act.
The
sale or transfer of the Mortgage Loan by the Seller complies with all applicable
federal, state, and local laws, rules, and regulations governing such sale
or
transfer, including, without limitation, the Fair and Accurate Credit
Transactions Act (“FACT Act”) and the Fair Credit Reporting Act, each as may be
amended from time to time, and the Seller has not received any actual or
constructive notice of any identity theft, fraud, or other misrepresentation
in
connection with such Mortgage Loan or any party thereto.
(xl) Qualified
Mortgage.
Each
Mortgage Loan constitutes a “qualified mortgage” under Section 860G(a)(3)(A) of
the Code and Treasury Regulation Section 1.860G-2(a)(1);
(xli) Condos
and PUDs.
If the
Residential Dwelling on the Mortgaged Property is a condominium unit or a unit
in a planned unit development (other than a de minimis planned unit development)
such condominium or planned unit development project meets the eligibility
requirements of the Seller;
(xlii) Appraised
Value.
All
improvements which were considered in determining the Appraised Value of the
related Mortgaged Property lay wholly within the boundaries and building
restriction lines of the Mortgaged Property, and no improvements on adjoining
properties encroach upon the Mortgaged Property unless otherwise affirmatively
insured under an ALTA lender’s title insurance policy issued in conformance with
subsection (xvii) hereof;
(xliii) No
Additional Collateral.
The
Mortgage Note is not and has not been secured by any collateral except the
lien
of the corresponding Mortgage on the Mortgaged Property and the security
interest of any applicable security agreement or chattel mortgage referred
to in
(xi) above;
(xliv) Buydown
Mortgage Loans.
With
respect to each Buydown Mortgage Loan:
(a) On
or
before the date of origination of such Mortgage Loan, the Seller and the
Mortgagor, or the Seller, 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 Seller 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 for the first
two
years of the term of such Mortgage Loan at an interest rate of not more than
2.0% less per annum than the Mortgage Interest Rate. The effective interest
rate
will increase in the seventh month of the Buydown Mortgage Loan so that the
effective interest rate will be equal to the interest rate as set forth in
the
related Mortgage Note.
(b) The
Mortgage and Mortgage Note reflect the permanent payment terms rather than
the
payment terms of the Buydown Agreement. The Buydown Agreement provides for
the
payment by the Mortgagor of the full amount of the Monthly Payment on any Due
Date that the Buydown Funds are not available. The Buydown Funds were not used
to reduce the original principal balance of the Mortgage Loan or to increase
the
Appraised Value of the Mortgaged Property when calculating the Loan-to-Value
Ratios for purposes of this Agreement and, if the Buydown Funds were provided
by
the Seller and if required under Agency Guidelines, the terms of the Buydown
Agreement were disclosed to the appraiser of the Mortgaged
Property;
(c) 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;
(d) As
of the
Cut-off Date, the Buydown Mortgage Loans are 5% or less of the aggregate Stated
Principal Balance of the Mortgage Loans; and
(e) As
of the
date of origination of the Mortgage Loan, the provisions of the related Buydown
Agreement complied with the requirements of Xxxxxx Xxx and Xxxxxxx Mac regarding
buydown agreements;
(xlv) No
Convertible Mortgage Loans; No Graduated Payments or Contingent
Interests.
No
Mortgage Loan is a Convertible Mortgage Loan. The Mortgage Loan is not a
graduated payment mortgage loan, and the Mortgage Loan does not have a shared
appreciation or other contingent interest feature;
(xlvi) Disclosure
Materials.
The
Mortgagor has executed a statement to the effect that the Mortgagor has received
all disclosure materials required by applicable law with respect to the making
of fixed rate mortgage loans in the case of Fixed Rate Mortgage Loans, and
adjustable rate mortgage loans in the case of Adjustable Rate Mortgage Loans
and
rescission materials with respect to Refinanced Mortgage Loans, and such
statement is and will remain in the Mortgage File;
(xlvii) Recordation
of Mortgages.
Each
original Mortgage was recorded, or is in the process of being recorded, and
all
subsequent assignments of the original Mortgage (other than the assignment
to
the Purchaser) have been recorded, or are in the process of being recorded,
in
the appropriate jurisdictions wherein such recordation is necessary to perfect
the lien thereof as against creditors of the Seller. With respect to each
Mortgage Loan, the Assignment of Mortgage is in recordable form (except for
the
name of the assignee which is blank) and is acceptable for recording under
the
laws of the jurisdiction in which the Mortgaged Property is
located;
(xlviii) Texas
Refinance Loans.
Each
Mortgage Loan originated in the state of Texas pursuant to Article XVI, Section
50(a)(6) of the Texas Constitution (a “Texas Refinance Loan”) has been
originated in compliance with the provisions of Article XVI, Section 50(a)(6)
of
the Texas Constitution, Texas Civil Statutes and the Texas Finance Code. With
respect to each Texas Refinance Loan that is a Cash Out Refinancing, the related
Mortgage Loan Documents state that the Mortgagor may prepay such Texas Refinance
Loan in whole or in part without incurring a Prepayment Charge. The Seller
does
not collect any such Prepayment Charges in connection with any such Texas
Refinance Loan;
(xlix) Verification
of Down Payment.
Unless
otherwise set forth on the Mortgage Loan Schedule, the source of the down
payment with respect to each Mortgage Loan has been fully verified by the
Seller;
(l) Tax
Service Contracts.
The
Seller shall, at its own expense, cause each Mortgage Loan to be covered by
a
“life of loan” Tax Service Contract;
(li) Flood
Zone Service Contracts.
Each
Mortgage Loan is covered by a “life of loan” Flood Zone Service Contract which
is assignable to the Purchaser or its designee at no cost to the Purchaser
or
its designee or, for each Mortgage Loan not covered by such Flood Zone Service
Contract, the Seller agrees to purchase such Flood Zone Service
Contract;
(lii) No
Cooperatives; No Commercial Property; No Mixed Use Property, No Manufactured
Housing.
No
Mortgage Loan is secured by cooperative housing, commercial property,
manufactured housing, a mobile home or mixed use property;
(liii) Secondary
Market Sales.
Each
Mortgage Loan is eligible for sale in the secondary market or for inclusion
in a
Securitization Transaction without unreasonable credit enhancement as determined
by the Purchaser in its sole reasonable discretion;
(liv) No
Adverse Selection.
No
selection procedures were used by the Seller that identified the Mortgage Loans
as being less desirable or valuable than other comparable mortgage loans in
the
Seller’s portfolio;
(lv) Georgia.
No
Mortgage Loan originated or modified on or after October 1, 2002 and prior
to
March 7, 2003 is secured by a Mortgaged Property located in the State of
Georgia. No Mortgage Loan originated on or after March 7, 2003 is a “high cost
home loan” as defined under the Georgia Fair Lending Act.
(lvi) New
Jersey Manufactured Housing Loans.
No
Mortgage Loan is a “manufactured housing loan” pursuant to the NJ Act, and one
hundred percent of the amount financed of any purchase money Second Lien
Mortgage Loan subject to the NJ Act was used for the purchase of the related
Mortgaged Property;
(lvii) Reserved;
(lviii) Ground
Leases.
With
respect to each Mortgage Loan that is secured in whole or in part by the
interest of the Mortgagor as a lessee under a ground lease of the related
Mortgaged Property (a “Ground Lease”) and not by a fee interest in such
Mortgaged Property:
(a) The
Mortgagor is the owner of a valid and subsisting interest as tenant under the
Ground Lease;
(b) The
Ground Lease is in full force and effect, unmodified and not supplemented by
any
writing or otherwise;
(c) The
Mortgagor is not in default under any of the terms thereof and there are no
circumstances which, with the passage of time or the giving of notice or both,
would constitute an event of default thereunder;
(d) The
lessor under the Ground Lease is not in default under any of the terms or
provisions thereof on the part of the lessor to be observed or
performed;
(e) The
term
of the Ground Lease exceeds the maturity date of the related Mortgage Loan
by at
least five years;
(f) The
Ground Lease or a memorandum thereof has been recorded and by its terms permits
the leasehold estate to be mortgaged. The Ground Lease grants any leasehold
mortgagee standard protection necessary to protect the security of a leasehold
mortgagee;
(g) The
Ground Lease does not contain any default provisions that could give rise to
forfeiture or termination of the Ground Lease except for the non-payment of
the
Ground Lease rents;
(h) The
execution, delivery and performance of the Mortgage do not require the consent
(other than those consents which have been obtained and are in full force and
effect) under, and will not contravene any provision of or cause a default
under, the Ground Lease;
(i) The
Ground Lease provides that the leasehold can be transferred, mortgaged and
sublet an unlimited number of times either without restriction or on payment
of
a reasonable fee and delivery of reasonable documentation to the
lessor;
(j) The
Mortgagor has not commenced any action or given or received any notice for
the
purpose of terminating the Ground Lease;
(k) No
lessor, as debtor in possession or by a trustee for such lessor has give any
notice of, and the Mortgagor has not consented to, any attempt to transfer
the
related Mortgaged Property free and clear of such Ground Lease under section
363(f) of the Bankruptcy Code; and
(l) No
lessor
is subject to any voluntary or involuntary bankruptcy, reorganization or
insolvency proceeding and no Mortgaged Property is an asset in any voluntary
or
involuntary bankruptcy, reorganization or insolvency proceeding.
(lix) .Massachusetts
Refinanced Mortgage Loans.
No
Mortgage Loan secured by a Mortgaged Property located in the Commonwealth of
Massachusetts was made to pay off or refinance an existing loan or other debt
of
the related borrower (as the term “borrower” is defined in the regulations
promulgated by the Massachusetts Secretary of State in connection with
Massachusetts House Xxxx 4880 (2004)) unless either (1) (a) the related Mortgage
Interest Rate (that would be effective once the introductory rate expires,
with
respect to Adjustable Rate Mortgage Loans) did or would not exceed by more
than
2.25% the yield on United States Treasury securities having comparable periods
of maturity to the maturity of the related Mortgage Loan as of the fifteenth
day
of the month immediately preceding the month in which the application for the
extension of credit was received by the related lender or (b) the Mortgage
Loan
is an “open-end home loan” (as such term is used in the Massachusetts House Xxxx
4880 (2004)) and the related Mortgage Note provides that the related Mortgage
Interest Rate may not exceed at any time the Prime rate index as published
in
The Wall Street Journal plus a margin of one percent, or (2) such Mortgage
Loan
is in the "borrower's interest," as documented by a "borrower's interest
worksheet" for the particular Mortgage Loan, which worksheet incorporates the
factors set forth in Massachusetts House Xxxx 4880 (2004) and the regulations
promulgated thereunder for determining "borrower's interest," and otherwise
complies in all material respects with the laws of the Commonwealth of
Massachusetts;
(lx) Broker
Fees.
The
Mortgagor has not made or caused to be made any payment in the nature of an
“average” or “yield spread premium” to a mortgage broker or a like Person which
has not been fully disclosed to the Mortgagor;
(lxi) Acceptable
Investment.
The
Seller has no knowledge of any circumstances or condition with respect to the
Mortgage, the Mortgaged Property, the Mortgagor or the Mortgagor’s credit
standing that can reasonably be expected to cause the Mortgage Loan to be an
unacceptable investment, cause the Mortgage Loan to become delinquent, cause
the
Mortgage Loan to not be paid in full when due, or adversely affect the value
of
the Mortgage Loan;
(lxii) No
Notification of Prepayments in Full.
The
Mortgage Loan was not prepaid in full prior to the Closing Date and the Seller
has not received notification from a Mortgagor that a prepayment in full shall
be made after the Closing Date;
(lxiii) Prepayment
Charges.
With
respect to any Mortgage Loan that contains a provision permitting imposition
of
a Prepayment Charge upon a Principal Prepayment prior to maturity: (i) prior
to
the Mortgage Loan’s origination, the Mortgagor agreed to such Prepayment Charge
in exchange for a monetary benefit, including but not limited to a Mortgage
Interest Rate or fee reduction, (ii) prior to the Mortgage Loan’s origination,
the Mortgagor was offered the option of obtaining a Mortgage Loan that did
not
require payment of a Prepayment Charge and the originator of the Mortgage Loan
had a written policy of offering borrowers, or requiring third-party brokers
to
offer borrowers, the option of obtaining a mortgage loan that did not require
the payment of a Prepayment Charge, (iii) the Prepayment Charge is disclosed
to
the Mortgagor in the Mortgage Loan Documents pursuant to state and federal
law
applicable to the Mortgage Loan, (iv) for Mortgage Loans originated on or after
October 1, 2002, the duration of the prepayment period shall not exceed three
(3) years from the date of the Mortgage Note, unless the Mortgage Loan was
modified to reduce the prepayment period to no more than three years from the
date of the Mortgage Note and the Mortgagor was notified in writing of such
reduction in the prepayment period, (v) no Mortgage Loan originated prior to
October 1, 2002 has a Prepayment Charge longer than five years and (vi)
notwithstanding any state or federal law to the contrary, the Seller shall
not
impose such Prepayment Charge in any instance when the Mortgage Loan is
accelerated or paid off in connection with the workout of a delinquent mortgage
or due to the Mortgagor’s default. Each Prepayment Charge is permissible,
collectable and enforceable.
(lxiv) No
Predatory Lending.
No
predatory, abusive or deceptive lending practices, including but not limited
to,
the extension of credit to a Mortgagor without regard for the Mortgagor’s
ability to repay the Mortgage Loan and the extension of credit to a Mortgagor
which has no tangible net benefit to the Mortgagor, were employed in connection
with the origination of the Mortgage Loan. Each Mortgage Loan is in compliance
with the anti-predatory lending eligibility for purchase requirements of Xxxxxx
Mae’s Selling Guide. No Mortgagor was encouraged or required to select a
Mortgage Loan product offered by the Mortgage Loan’s originator which is a
higher cost product designed for less creditworthy borrowers, unless at the
time
of the Mortgage Loan’s origination, such Mortgagor did not qualify taking into
account credit history and debt to income ratios for a lower cost credit product
then offered by the Mortgage Loan’s originator or any affiliate of the Mortgage
Loan’s originator. If, at the time of the related loan application, the
Mortgagor may have qualified for a lower cost credit product then offered by
any
mortgage lending affiliate of the Mortgage Loan’s originator, the Mortgage
Loan’s originator referred the Mortgagor’s application to such affiliate for
underwriting consideration;
(lxv) Underwriting
Methodology.
The
methodology used in underwriting the extension of credit for each Mortgage
Loan
employs objective mathematical principles which relate the Mortgagor’s income,
credit history, assets and liabilities to the proposed payment and such
underwriting methodology did and does not rely on the extent of the Mortgagor’s
equity in the collateral as the principal determining factor in approving such
credit extension. Such underwriting methodology confirmed that at the time
of
origination (application/approval) the Mortgagor had a reasonable ability to
make timely payments on the Mortgage Loan.
(lxvi) Points
and Fees Disclosed.
All
points and fees related to each Mortgage Loan were disclosed in writing to
the
related Borrower in accordance with applicable state and federal laws and
regulations. No Borrower was charged “points and fees” (whether or not financed)
in an amount greater than (a) $1,000 or (b) 5% of the principal amount of such
Mortgage Loan, whichever is greater, such 5% limitation is calculated in
accordance with Xxxxxx Mae’s anti-predatory lending requirements as set forth in
the Xxxxxx Xxx Guides. For purposes of this representation, “points and fees”
(x) include origination, underwriting, broker and finder’s fees and charges that
the lender imposed as a condition of making the Mortgage Loan, whether they
are
paid to the lender or a third party, and (y) exclude bona fide discount points,
fees paid for actual services rendered in connection with the origination of
the
mortgage (such as attorneys’ fees, notaries fees and fees paid for property
appraisals, credit reports, surveys, title examinations and extracts, flood
and
tax certifications, and home inspections); the cost of mortgage insurance or
credit-risk price adjustments; the costs of title, hazard, and flood insurance
policies; state and local transfer taxes or fees; escrow deposits for the future
payment of taxes and insurance premiums; and other miscellaneous fees and
charges that, in total, do not exceed 0.25 percent of the loan amount. All
fees
and charges (including finance charges), whether or not financed, assessed,
collected or to be collected in connection with the origination and servicing
of
each Mortgage Loan were disclosed in writing to the related Mortgagor in
accordance with applicable state and federal laws and regulations;
(lxvii) Full
File Credit Reporting (Xxxxxx Mae).
The
Seller will transmit full-file credit reporting data for each Mortgage Loan
pursuant to Xxxxxx Xxx Guide Announcement 95-19 and for each Mortgage Loan,
Seller agrees it shall report one of the following statuses each month as
follows: new origination, current, delinquent (30-, 60-, 90-days, etc.),
foreclosed, or charged-off;
(lxviii) No
Credit Life Policies.
No
Mortgagor was required to purchase any single premium credit insurance policy
(e.g. life, mortgage, disability, accident, unemployment, property or health
insurance product) or debt cancellation agreement as a condition of obtaining
the extension of credit. No Mortgagor obtained a prepaid single premium credit
insurance policy (e.g. life, mortgage, disability, accident, unemployment,
property or health insurance product) in connection with the origination of
the
Mortgage Loan, and no proceeds from any Mortgage Loan were used to purchase
single-premium credit insurance policies or debt cancellation agreements as
part
of the origination of, or as a condition to closing, such Mortgage Loan;
(lxix) Full
File Credit Reporting (Past Practice; Future Practice).
The
Seller and any predecessor servicer has fully furnished, in accordance with
the
Fair Credit Reporting Act and its implementing regulations, accurate and
complete information (e.g., favorable and unfavorable) on its borrower credit
files to Equifax, Experian and Trans Union Credit Information Company (three
of
the credit repositories) on a monthly basis; and the Seller will fully furnish,
in accordance with the Fair Credit Reporting Act and its implementing
regulations, accurate and complete information (e.g., favorable and unfavorable)
on its borrower credit files to Equifax, Experian and Trans Credit Information
Company (three of the credit repositories), on a monthly basis; and
(lxx) No
Arbitration.
With
respect to each Mortgage Loan, neither the related Mortgage nor the related
Mortgage Note requires the Mortgagor to submit to arbitration to resolve any
dispute arising out of or relating in any way to the Mortgage Loan; No Mortgagor
agreed to submit to arbitration to resolve any dispute arising out of or
relating in any way to the Mortgage Loan.
| Subsection 7.03. |
Remedies
for Breach of Representations and
Warranties.
|
It
is
understood and agreed that the representations and warranties set forth in
Subsections 7.01 and 7.02 shall survive the sale of the Mortgage Loans to the
Purchaser and shall inure to the benefit of the Purchaser, notwithstanding
any
restrictive or qualified endorsement on any Mortgage Note or Assignment of
Mortgage or the examination or lack of examination of any Mortgage File. Upon
discovery by the Seller or the Purchaser of a breach of any of the foregoing
representations and warranties (notwithstanding any representation and warranty
given to the best of Seller’s knowledge) which materially and adversely affects
the value of the Mortgage Loans or the interest of the Purchaser (or which
materially and adversely affects the interests of the Purchaser in the related
Mortgage Loan in the case of a representation and warranty relating to a
particular Mortgage Loan), the party discovering such breach shall give prompt
written notice to the other.
Within
60
days of the earlier of either discovery by or notice to the Seller of any breach
of a representation or warranty which materially and adversely affects the
value
of a Mortgage Loan or the Mortgage Loans, the Seller shall use its best efforts
promptly to cure such breach in all material respects and, if such breach cannot
be cured, the Seller shall, at the Purchaser’s option, repurchase such Mortgage
Loan at the Repurchase Price within two (2) Business Days following the
expiration of the related cure period. In the event that a breach shall involve
any representation or warranty set forth in Subsection 7.01 and such breach
cannot be cured within 60 days of the earlier of either discovery by or notice
to the Seller of such breach, all of the Mortgage Loans shall, at the
Purchaser’s option, be repurchased by the Seller at the Repurchase Price. With
respect to any representations and warranties made by the Seller, in the event
that it is discovered that the circumstances with respect to the Mortgage Loan
are not accurately reflected in such representation and warranty notwithstanding
the actual knowledge or lack of knowledge of Seller, then, notwithstanding
that
such representation and warranty is made “to the best of the Seller’s
knowledge,” or in reliance on or based on other information, there shall be a
breach of such representation and Seller shall cure such breach or repurchase
the affected Mortgage Loan as provided in this Subsection 7.03. The Seller
shall, at the request of the Purchaser and assuming that Seller has a Qualified
Substitute Mortgage Loan, rather than repurchase the Mortgage Loan as provided
above, remove such Mortgage Loan and substitute in its place a Qualified
Substitute Mortgage Loan or Loans; provided that such substitution shall be
effected not later than 120 days after the related Closing Date. If the Seller
has no Qualified Substitute Mortgage Loan, it shall repurchase the deficient
Mortgage Loan. Notwithstanding anything to the contrary contained herein, it
is
understood by the parties hereto that a breach of the representations and
warranties made in Subsections 7.02 (xxxiii), (xl), (lvi), (lxv), (lxix), (lxiv)
(lxx) and (lxxi) will be deemed to materially and adversely affect the value
of
the related Mortgage Loan or the interest of the Purchaser therein.
Any
repurchase of a Mortgage Loan(s) pursuant to the foregoing provisions of this
Subsection 7.03 shall occur on a date designated by the Purchaser and shall
be
accomplished by deposit in the Custodial Account of the amount of the Repurchase
Price for distribution to the Purchaser on the next scheduled Distribution
Date.
At
the
time of repurchase of any deficient Mortgage Loan, the Purchaser and the Seller
shall arrange for the reassignment of the repurchased Mortgage Loan to the
Seller and the delivery to the Seller of any documents held by the Purchaser
relating to the repurchased Mortgage Loan. In the event the Repurchase Price
is
deposited in the Custodial Account, the Seller shall, simultaneously with such
deposit, give written notice to the Purchaser that such deposit has taken place.
Upon such repurchase the related Mortgage Loan Schedule shall be amended to
reflect the withdrawal of the repurchased Mortgage Loan from this
Agreement.
As
to any
Deleted Mortgage Loan for which the Seller substitutes a Qualified Substitute
Mortgage Loan or Loans, the Seller shall effect such substitution by delivering
to the Purchaser for such Qualified Substitute Mortgage Loan or Loans the
Mortgage Note, the Mortgage, the Assignment of Mortgage and such other documents
and agreements as are required by this Agreement, with the Mortgage Note
endorsed as required therein. The Seller shall deposit in the Custodial Account
the Monthly Payment less the Servicing Fee due on such Qualified Substitute
Mortgage Loan or Loans in the month following the date of such substitution.
Monthly Payments due with respect to Qualified Substitute Mortgage Loans in
the
month of substitution will be retained by the Seller. For the month of
substitution, distributions to the Purchaser will include the Monthly Payment
due on such Deleted Mortgage Loan in the month of substitution, and the Seller
shall thereafter be entitled to retain all amounts subsequently received by
the
Seller in respect of such Deleted Mortgage Loan. The Seller shall give written
notice to the Purchaser that such substitution has taken place and shall amend
the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage
Loan
from the terms of this Agreement and the substitution of the Qualified
Substitute Mortgage Loan. Upon such substitution, such Qualified Substitute
Mortgage Loan or Loans shall be subject to the terms of this Agreement in all
respects, and the Seller shall be deemed to have made with respect to such
Qualified Substitute Mortgage Loan or Loans, as of the date of substitution,
the
covenants, representations and warranties set forth in Subsections 7.01 and
7.02.
For
any
month in which the Seller substitutes one or more Qualified Substitute Mortgage
Loans for one or more Deleted Mortgage Loans, the Seller will determine the
amount (if any) by which the aggregate principal balance of all such Qualified
Substitute Mortgage Loans as of the date of substitution is less than the
aggregate Stated Principal Balance of all such Deleted Mortgage Loans (after
application of scheduled principal payments due in the month of substitution).
An amount equal to the product of the amount of such shortfall multiplied by
the
greater of 100% or the Purchase Price percentage specified in the related
Confirmation shall be distributed by the Seller in the month of substitution
pursuant to the Servicing Addendum. Accordingly, on the date of such
substitution, the Seller will deposit from its own funds into the Custodial
Account an amount equal to such amount.
In
addition to such cure, repurchase and substitution obligation, the Seller shall
indemnify the Purchaser and hold it harmless against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments, and other costs and expenses resulting from any claim, demand,
defense or assertion based on or grounded upon, or resulting from, a breach
of
the Seller’s representations and warranties contained in this Section 7. It
is understood and agreed that the obligations of the Seller set forth in this
Subsection 7.03 to cure, substitute for or repurchase a defective Mortgage
Loan
and to indemnify the Purchaser as provided in this Subsection 7.03 constitute
the sole remedies of the Purchaser respecting a breach of the foregoing
representations and warranties. The indemnification obligation of the Seller
set
forth herein shall survive the termination of this Agreement notwithstanding
any
applicable statute of limitations, which the Seller hereby expressly
waives.
Any
cause
of action against the Seller relating to or arising out of the breach of any
representations and warranties made in Subsections 7.01 or 7.02 shall accrue
as
to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or
notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to
cure such breach or repurchase such Mortgage Loan as specified above, and (iii)
demand upon the Seller by the Purchaser for compliance with the relevant
provisions of this Agreement.
In
addition to the foregoing, within 60 days of the earlier of discovery by Seller
or receipt of notice by Seller of a breach of any representation of any Seller
which materially and adversely affects the interests of any Prepayment
Charge, the Seller shall pay the amount of the scheduled Prepayment Charge
to
the Purchaser.
| Subsection 7.04. |
Prepayment-in-Full
Premium
Recapture.
|
In
the
event that any Mortgage Loans prepay-in-full within three (3) months of the
related Closing Date, the Seller shall remit to the Purchaser within five (5)
Business Days following receipt of notice from the Purchaser of a
prepayment-in-full, the greater of (i) an amount equal to the product of (A)
the
excess of the related purchase price percentage over 100% and (B) the Stated
Principal Balance of such prepaid Mortgage Loan as of the related Closing Date
or (ii) the amount of any prepayment penalty fees paid with respect to such
Mortgage Loan.
| Subsection 7.05. |
Early
Payment Default.
|
In
the
event that any Mortgagor fails to make the first, second or third scheduled
Monthly Payment due on a Mortgage Loan or due to Purchaser within the calendar
month such payment is due, Seller shall repurchase such Mortgage Loan at the
Repurchase Price within five (5) Business Days following receipt of notice
from
the Purchaser of such payment
default.
SECTION
8. Closing.
The
closing for each Mortgage Loan Package shall take place on the related Closing
Date. At the Purchaser’s option, the closing shall be either: by telephone,
confirmed by letter or wire as the parties shall agree, or conducted in person,
at such place as the parties shall agree.
The
closing for the Mortgage Loans to be purchased on each Closing Date shall be
subject to each of the following conditions:
| (a) |
all
of the representations and warranties of the Seller under this Agreement
shall be true and correct as of the related Closing Date and no event
shall have occurred which, with notice or the passage of time, would
constitute a default under this
Agreement;
|
| (b) |
the
Initial Purchaser shall have received, or the Initial Purchaser’s
attorneys shall have received in escrow, all Closing Documents as
specified in Section 9, in such forms as are agreed upon and
acceptable to the Purchaser, duly executed by all signatories other
than
the Purchaser as required pursuant to the terms
hereof;
|
| (c) |
the
Seller shall have delivered and released to the Purchaser all documents
required pursuant to this Agreement; and
|
| (d) |
all
other terms and conditions of this Agreement shall have been complied
with.
|
Subject
to the foregoing conditions, the Initial Purchaser shall pay to the Seller
on
the related Closing Date the Purchase Price, plus accrued interest pursuant
to
Section 4, by wire transfer of immediately available funds to the account
designated by the Seller.
SECTION
9. Closing
Documents.
(a) On
or
before the Initial Closing Date, the Seller shall submit to the Initial
Purchaser fully executed originals of the following documents:
| 1. |
this
Agreement, in four counterparts;
|
| 2. |
a
Custodial Account Letter Agreement in the form attached as Exhibit
6
hereto;
|
| 3. |
as
Escrow Account Letter Agreement in the form attached as Exhibit
7
hereto;
|
| 4. |
an
Officer’s Certificate, in the form of Exhibit
1
hereto, including all attachments
thereto;
|
| 5. |
an
Opinion of Counsel to the Seller, in the form of Exhibit
2
hereto; and
|
| 6. |
the
Seller’s Underwriting Guidelines.
|
(b) The
Closing Documents for the Mortgage Loans to be purchased on each Closing Date
shall consist of fully executed originals of the following
documents:
| 1. |
the
related Confirmation;
|
| 2. |
the
related Mortgage Loan Schedule;
|
| 3. |
an
Officer’s Certificate, in the form of Exhibit
1
hereto, including all attachments
thereto;
|
| 4. |
if
requested by the Initial Purchaser, an Opinion of Counsel to the Seller,
in the form of Exhibit
2
hereto;
|
| 5. |
a
Security Release Certification, in the form of Exhibit
3
hereto executed by any Person, as requested by the Initial Purchaser,
if
any of the Mortgage Loans has at any time been subject to any security
interest, pledge or hypothecation for the benefit of such
Person;
|
| 6. |
a
certificate or other evidence of merger or change of name, signed or
stamped by the applicable regulatory authority, if any of the Mortgage
Loans were acquired by the Seller by merger or acquired or originated
by
the Seller while conducting business under a name other than its present
name, if applicable; and
|
| 7. |
an
Assignment and Conveyance in the form of Exhibit
4
hereto.
|
(c) In
addition, to the extent that the Underwriting Guidelines are modified, amended
or supplemented at any time following the Initial Closing Date, the Seller
shall
notify the Purchaser of such change and provide the Purchaser a copy in both
electronic and hard copy of such modification, amendment or supplement at the
time the Seller presents a bid for a future trade.
SECTION
10. Costs.
The
Purchaser shall pay any commissions due its salesmen and the legal fees and
expenses of its attorneys. All other costs and expenses incurred in connection
with the transfer and delivery of the Mortgage Loans, including without
limitation recording fees, fees for title policy endorsements and continuations,
fees for recording Assignments of Mortgage and the Seller’s attorney’s fees,
shall be paid by the Seller.
SECTION
11. Seller’s
Servicing Obligations.
The
Seller, as independent contract servicer, shall service and administer the
Mortgage Loans during the Preliminary Servicing Period in accordance with the
terms and provisions set forth in the Servicing Addendum attached as
Exhibit
8
which
Servicing Addendums are incorporated herein by reference.
SECTION
12. Removal
of Mortgage Loans from Inclusion under This Agreement Upon
a
Whole Loan Transfer or a Securitization Transaction on One
or
More Reconstitution Dates.
The
Seller and the Initial Purchaser agree that with respect to some or all of
the
Mortgage Loans, the Initial Purchaser may effect either:
| (1) |
one
or more Whole Loan Transfers; and/or
|
| (2) |
one
or more Securitization Transactions.
|
With
respect to each Whole Loan Transfer or Securitization Transaction, as the case
may be, entered into by the Initial Purchaser, the Seller agrees:
| (1) |
to
cooperate fully with the Purchaser and any prospective purchaser, at
Purchaser’s sole expense, with respect to all reasonable requests and due
diligence procedures and with respect to the preparation (including,
but
not limited to, the endorsement, delivery, assignment, and execution)
of
the Mortgage Loan Documents and other related documents, and with respect
to servicing requirements reasonably requested by the rating agencies
and
credit enhancers;
|
| (2) |
to
execute all agreements required to be executed by the Seller in connection
with such Whole Loan Transfer or Securitization Transaction, including
without limitation any Reconstitution Agreements, the Assignment and
Recognition Agreement substantially in the form set forth as Exhibit
9
attached hereto, and the Indemnification Agreement substantially in
the
form set forth as Exhibit
10
attached hereto, provided that each of the Seller and the Purchaser
is
given an opportunity to review and reasonably negotiate in good faith
the
content of such documents not specifically referenced or provided for
herein;
|
| (3) |
with
respect to any Whole Loan Transfer or Securitization Transaction, the
Seller shall make the representations and warranties regarding the
Seller
and the Mortgage Loans as of the date of the Whole Loan Transfer or
Securitization Transaction, modified to the extent necessary to accurately
reflect the pool statistics of the Mortgage Loans as of the date of
such
Whole Loan Transfer or Securitization Transaction and supplemented
by
additional representations and warranties that are not unreasonable
under
the circumstances as of the date of such Whole Loan Transfer or
Securitization Transaction, to the extent that any events or
circumstances, including changes in applicable law occurring subsequent
to
the related Closing Date(s), would render a related Mortgage Loan
unmarketable to a material segment of the secondary mortgage or
mortgage-backed securities market;
|
| (4) |
to
deliver to the Purchaser for inclusion in any prospectus or other offering
material such publicly available information regarding the Seller,
its
underwriting guidelines, its financial condition and its mortgage loan
delinquency, foreclosure and loss experience and any additional
information reasonably requested by the Purchaser, and to deliver to
the
Purchaser any similar non public, unaudited financial information,
in
which case the Purchaser shall bear the cost of having such information
audited by certified public accountants if the Purchaser desires such
an
audit, or as is otherwise reasonably requested by the Purchaser and
which
the Seller is capable of providing without unreasonable effort or expense,
and to indemnify the Purchaser and its affiliates for misstatements
or
omissions or any alleged misstatements or omissions contained (i) in
such
information and (ii) on the Mortgage Loan
Schedule;
|
| (5) |
to
deliver to the Purchaser and to any Person designated by the Purchaser,
at
the Purchaser’s expense, such statements and audit letters of reputable,
certified public accountants pertaining to information provided by
the
Seller pursuant to clause 4 above as shall be reasonably requested
by the
Purchaser;
|
| (6) |
to
deliver to the Purchaser, and to any Person designated by the Purchaser,
such legal documents and in-house Opinions of Counsel as are customarily
delivered by originators or servicers, as the case may be, and reasonably
determined by the Purchaser to be necessary in connection with Whole
Loan
Transfers or Securitization Transactions, as the case may be, such
in-house Opinions of Counsel for a Securitization Transaction to be
in the
form reasonably acceptable to the Purchaser, it being understood that
the
cost of any opinions of outside special counsel that may be required
for a
Whole Loan Transfer or Securitization Transaction, as the case may
be,
shall be the responsibility of the
Purchaser;
|
| (7) |
in
connection with any securitization of any Mortgage Loans, to negotiate
and
execute one or more subservicing agreements between the Seller and
any
master servicer which is generally considered to be a prudent master
servicer in the secondary mortgage market, designated by the Purchaser
in
its sole discretion after consultation with the Seller and/or one or
more
custodial and servicing agreements among the Purchaser, the Seller
and a
third party custodian/trustee which is generally considered to be a
prudent custodian/trustee in the secondary mortgage market designated
by
the Purchaser in its sole discretion after consultation with the Seller,
in either case for the purpose of pooling the Mortgage Loans with other
Mortgage Loans for resale or securitization;
|
| (8) |
in
connection with any securitization of any Mortgage Loans, to execute
a
pooling and servicing agreement, which pooling and servicing agreement
may, at the Purchaser’s direction, contain contractual provisions
including, but not limited to, a 24-day certificate payment delay (54-day
total payment delay), servicer advances of delinquent scheduled payments
of principal and interest through liquidation (unless deemed
non-recoverable) and prepayment interest shortfalls (to the extent
of the
monthly servicing fee payable thereto), servicing and mortgage loan
representations and warranties which in form and substance conform
to the
representations and warranties in this Agreement and to secondary market
standards for securities backed by mortgage loans similar to the Mortgage
Loans and such provisions with regard to servicing responsibilities,
investor reporting, segregation and deposit of principal and interest
payments, custody of the Mortgage Loans, and other covenants as are
required by the Purchaser and one or more nationally recognized rating
agencies for mortgage pass-through transactions which are “mortgage
related securities” for the purposes of the Secondary Mortgage Market
Enhancement Act of 1984, unless otherwise mutually agreed. At the option
of the Purchaser, the facilities of the Depository Trust Company (“DTC”)
may be used in connection with any class of security issued pursuant
to
any pooling agreement, subject only to the consent of the DTC. If the
Purchaser deems it advisable at any time to pool the Mortgage Loans
with
other mortgage loans for the purpose of resale or securitization, the
Seller agrees to execute one or more subservicing agreements between
itself (as servicer) and a master servicer designated by the Purchaser
at
its sole discretion, and/or one or more servicing agreements among
the
Seller (as servicer), the Purchaser and a trustee designated by the
Purchaser at its sole discretion, such agreements in each case
incorporating terms and provisions substantially identical to those
described in the immediately preceding
paragraph;
|
| (9) |
with
respect to each Whole Loan Transfer and Securitization Transaction,
the
Seller shall establish and maintain one or more Custodial Accounts
and
Escrow Accounts with respect to the Mortgage Loans sold pursuant to
such
Whole Loan Transfer or Securitization Transaction, which accounts shall
be
established and maintained in addition to, and separate and apart from,
any other Custodial Account or Custodial Accounts and Escrow Account
or
Escrow Accounts established and maintained pursuant to this Agreement.
The
sale or transfer of the Mortgage Loans pursuant to a Whole Loan Transfer
or Securitization Transaction shall be deemed to create a separate
and
distinct servicing agreement by the Seller with respect to such Mortgage
Loan or Loans. In connection therewith, the obligation of the Seller
in
respect of compensating interest payments for Prepayment Interest
Shortfalls with respect to the Mortgage Loans sold pursuant to a Whole
Loan Transfer or Securitization Transaction, or sold pursuant to one
Whole
Loan Transfer or Securitization Transaction and separated by loan group
(each, a “Loan Group”), shall accrue with respect to the related Mortgage
Loans or Loan Group, and shall not be made on an aggregate basis with
all
of the Mortgage Loans purchased pursuant to or in connection with this
Agreement or with the Mortgage Loans of a different Loan Group. In
addition, any reimbursement of the Seller in respect of Monthly Advances,
Servicing Advances and unreimbursed Servicing Fees shall be reimbursed
first on a loan by loan basis and, if reimbursed out of general
collections on the related Mortgage Loans, shall be reimbursed from
collections on the Mortgage Loans sold pursuant to the related Whole
Loan
Transfer or Securitization Transaction or, with respect to Mortgage
Loans
sold pursuant to one Whole Loan Transfer or Securitization Transaction
and
separated by Loan Group, out of collections of the Mortgage Loans in
the
related Loan Group; and
|
| (10) |
in
connection with any securitization of any Mortgage Loans, to transfer
the
servicing rights to the Purchaser or its designee as described in
Section 16 upon the direction of the
Purchaser.
|
All
Mortgage Loans not sold or transferred pursuant to a Whole Loan Transfer or
Securitization Transaction shall be subject to this Agreement and shall continue
to be serviced for the remainder of the Preliminary Servicing Period in
accordance with the terms of this Agreement and with respect thereto this
Agreement shall remain in full force and effect.
SECTION
13. COMPLIANCE
WITH REGULATION AB
| Subsection 13.01. |
Intent
of the Parties; Reasonableness.
|
The
Purchaser and the Seller acknowledge and agree that the purpose of Section
13 of
this Agreement is to facilitate compliance by the Purchaser and any Depositor
with the provisions of Regulation AB and related rules and regulations of the
Commission. Although Regulation AB is applicable by its terms only to offerings
of asset-backed securities that are registered under the Securities Act, the
Company acknowledges that investors in privately offered securities may require
that the Purchaser or any Depositor provide comparable disclosure in
unregistered offerings. References in this Agreement to compliance with
Regulation AB include provision of comparable disclosure in private
offerings.
Neither
the Purchaser nor any Depositor shall exercise its right to request delivery
of
information or other performance under these provisions other than in good
faith, or for purposes other than compliance with the Securities Act, the
Exchange Act and the rules and regulations of the Commission thereunder (or
the
provision in a private offering of disclosure comparable to that required under
the Securities Act). The Seller acknowledges that interpretations of the
requirements of Regulation AB may change over time, whether due to interpretive
guidance provided by the Commission or its staff, consensus among participants
in the asset-backed securities markets, advice of counsel, or otherwise, and
agrees to comply with requests made by the Purchaser, any master servicer or
any
Depositor in good faith for delivery of information under these provisions
on
the basis of evolving interpretations of Regulation AB. In connection with
any
Securitization Transaction, the Seller shall cooperate fully with the Purchaser
and any master servicer to deliver to the Purchaser (including any of its
assignees or designees), any master servicer and any Depositor, any and all
statements, reports, certifications, records and any other information necessary
in the good faith determination of the Purchaser, the master servicer or any
Depositor to permit the Purchaser, such master servicer or such Depositor to
comply with the provisions of Regulation AB, together with such disclosures
relating to the Seller, any Subservicer, any Third-Party Originator and the
Mortgage Loans, or the servicing of the Mortgage Loans, reasonably believed
by
the Purchaser or any Depositor to be necessary in order to effect such
compliance.
The
Purchaser (including any of its assignees or designees) shall cooperate with
the
Seller by providing timely notice of requests for information under these
provisions and by reasonably limiting such requests to information required,
in
the Purchaser’s reasonable judgment, to comply with Regulation AB.
| Subsection 13.02. |
Additional
Representations and Warranties of the
Seller.
|
(a) The
Seller shall be deemed to represent to the Purchaser, to any master servicer
and
to any Depositor, as of the date on which information is first provided to
the
Purchaser, any master servicer or any Depositor under Subsection 13.03 that,
except as disclosed in writing to the Purchaser, such master servicer or such
Depositor prior to such date: (i) the Seller is not aware and has not received
notice that any default, early amortization or other performance triggering
event has occurred as to any other securitization due to any act or failure
to
act of the Seller; (ii) the Seller has not been terminated as servicer in a
residential mortgage loan securitization, either due to a servicing default
or
to application of a servicing performance test or trigger; (iii) no material
noncompliance with the applicable servicing criteria with respect to other
securitizations of residential mortgage loans involving the Seller as servicer
has been disclosed or reported by the Seller; (iv) no material changes to the
Seller’s policies or procedures with respect to the servicing function it will
perform under this Agreement and any Reconstitution Agreement for mortgage
loans
of a type similar to the Mortgage Loans have occurred during the three-year
period immediately preceding the related Securitization Transaction; (v) there
are no aspects of the Seller’s financial condition that could have a material
adverse effect on the performance by the Seller of its servicing obligations
under this Agreement or any Reconstitution Agreement; (vi) there are no material
legal or governmental proceedings pending (or known to be contemplated) against
the Seller, any Subservicer or any Third-Party Originator; and (vii) there
are
no affiliations, relationships or transactions relating to the Seller, any
Subservicer or any Third-Party Originator with respect to any Securitization
Transaction and any party thereto identified by the related Depositor of a
type
described in Item 1119 of Regulation AB.
(b) If
so
requested by the Purchaser, any master servicer or any Depositor on any date
following the date on which information is first provided to the Purchaser,
any
master servicer or any Depositor under Subsection 13.03, the Seller shall,
within five Business Days following such request, confirm in writing the
accuracy of the representations and warranties set forth in paragraph (a) of
this Subsection or, if any such representation and warranty is not accurate
as
of the date of such request, provide reasonably adequate disclosure of the
pertinent facts, in writing, to the requesting party.
| Subsection 13.03. |
Information
to Be Provided by the Seller.
|
In
connection with any Securitization Transaction the Seller shall (i) within
five
Business Days following request by the Purchaser, any master servicer or any
Depositor, provide to the Purchaser and such Depositor (or, as applicable,
cause
each Third-Party Originator and each Subservicer to provide), in writing and
in
form and substance reasonably satisfactory to the Purchaser and such Depositor,
the information and materials specified in paragraphs (a), (b), (c) and (f)
of
this Subsection, and (ii) as promptly as practicable following notice to or
discovery by the Seller, provide to the Purchaser and any Depositor (in writing
and in form and substance reasonably satisfactory to the Purchaser and such
Depositor) the information specified in paragraph (d) of this
Subsection.
(a) If
so
requested by the Purchaser or any Depositor, the Seller shall provide such
information regarding (i) the Seller, as originator of the Mortgage Loans
(including as an acquirer of Mortgage Loans from a Qualified Correspondent),
or
(ii) each Third-Party Originator, and (iii) as applicable, each Subservicer,
as
is requested for the purpose of compliance with Items 1103(a)(1), 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. With respect to the information regarding
the size and composition of the originator’s origination portfolio, the Company
shall deliver to the Purchaser and to any person designated by the Purchaser,
at
the Purchaser’s incremental expense, an agreed upon procedures report of a
reputable, certified public accountant pertaining to a
comparison of the information provided to it by the Seller against the
information in the related offering document in connection with the related
Securitization Transaction if
reasonably requested by the Purchaser;
(C) a
description of any material legal or governmental proceedings pending (or known
to be contemplated) against the Seller, each Third-Party Originator and each
Subservicer; and
(D) a
description of any affiliation or relationship between the Seller, each
Third-Party Originator, each Subservicer and any of the following parties to
a
Securitization Transaction, as such parties are identified to the Seller by
the
Purchaser or any Depositor in writing in advance of such Securitization
Transaction:
(1) the
sponsor;
(2) the
depositor;
(3) the
issuing entity;
(4) any
servicer;
(5) any
trustee;
(6) any
originator;
(7) any
significant obligor;
(8) any
enhancement or support provider; and
(9) any
other
material transaction party.
(b) If
so
requested by the Purchaser or any Depositor, the Seller shall provide (or,
as
applicable, cause each Third-Party Originator to provide) Static Pool
Information with respect to the mortgage loans (of a similar type as the
Mortgage Loans, as reasonably identified by the Purchaser as provided below)
originated by (i) the Seller, if the Seller is an originator of Mortgage Loans
(including as an acquirer of Mortgage Loans from a Qualified Correspondent),
and/or (ii) each Third-Party Originator. Such Static Pool Information shall
be
prepared by the Seller (or Third-Party Originator) on the basis of its
reasonable, good faith interpretation of the requirements of Item 1105(a)(1)-(3)
of Regulation AB. To the extent that there is reasonably available to the Seller
(or Third-Party Originator) Static Pool Information with respect to more than
one mortgage loan type, the Purchaser or any Depositor shall be entitled to
specify whether some or all of such information shall be provided pursuant
to
this paragraph. The content of such Static Pool Information may be in the form
customarily provided by the Seller, and need not be customized for the Purchaser
or any Depositor. Such Static Pool Information for each vintage origination
year
or prior securitized pool, as applicable, shall be presented in increments
no
less frequently than quarterly over the life of the mortgage loans included
in
the vintage origination year or prior securitized pool. The most recent periodic
increment must be as of a date no later than 135 days prior to the date of
the
prospectus or other offering document in which the Static Pool Information
is to
be included or incorporated by reference. The Static Pool Information shall
be
provided in an electronic format that provides a permanent record of the
information provided, such as a portable document format (pdf) file, or other
such electronic format reasonably required by the Purchaser or the Depositor,
as
applicable.
Promptly
following notice or discovery of a material error in Static Pool Information
provided pursuant to the immediately preceding paragraph (including an omission
to include therein information required to be provided pursuant to such
paragraph), the Seller shall provide corrected Static Pool Information to the
Purchaser or any Depositor, as applicable, in the same format in which Static
Pool Information was previously provided to such party by the
Seller.
If
so
requested by the Purchaser or any Depositor, the Seller shall provide (or,
as
applicable, cause each Third-Party Originator to provide), at the expense of
the
requesting party (to the extent of any additional incremental expense associated
with delivery pursuant to this Agreement), such agreed-upon procedures letters
of certified public accountants reasonably acceptable to the Purchaser or
Depositor, as applicable, pertaining to Static Pool Information relating to
prior securitized pools for securitizations closed on or after January 1, 2006
or, in the case of Static Pool Information with respect to the Seller’s or
Third-Party Originator’s originations or purchases, to calendar months
commencing January 1, 2006, as the Purchaser or such Depositor shall reasonably
request. Such letters shall be addressed to and be for the benefit of such
parties as the Purchaser or such Depositor shall designate, which may include,
by way of example, any Sponsor, any Depositor and any broker dealer acting
as
underwriter, placement agent or initial purchaser with respect to a
Securitization Transaction. Any such statement or letter may take the form
of a
standard, generally applicable document accompanied by a reliance letter
authorizing reliance by the addressees designated by the Purchaser or such
Depositor.
(c) If
so
requested by the Purchaser or any Depositor, the Seller shall provide such
information regarding the Seller, as servicer of the Mortgage Loans, and each
Subservicer (each of the Seller and each Subservicer, for purposes of this
paragraph, a “Servicer”), as is requested for the purpose of compliance with
Items 1108, 1111, 1117 and 1119 of Regulation AB. Such information shall
include, at a minimum:
(A) the
Servicer’s form of organization;
(B) a
description of how long the Servicer has been servicing residential mortgage
loans; a general discussion of the Servicer’s experience in servicing assets of
any type as well as a more detailed discussion of the Servicer’s experience in,
and procedures for, the servicing function it will perform under this Agreement
and any Reconstitution Agreements; information regarding the size, composition
and growth of the Servicer’s portfolio of residential mortgage loans of a type
similar to the Mortgage Loans and information on factors related to the Servicer
that may be material, in the good faith judgment of the Purchaser or any
Depositor, to any analysis of the servicing of the Mortgage Loans or the related
asset-backed securities, as applicable, including, without
limitation:
(1) whether
any prior securitizations of mortgage loans of a type similar to the Mortgage
Loans involving the Servicer have defaulted or experienced an early amortization
or other performance triggering event because of servicing during the three-year
period immediately preceding the related Securitization
Transaction;
(2)
the
extent of outsourcing the Servicer utilizes;
(3)
whether
there has been previous disclosure of material noncompliance with the applicable
servicing criteria with respect to other securitizations of residential mortgage
loans involving the Servicer as a Servicer during the three-year period
immediately preceding the related Securitization Transaction;
(4)
whether the Servicer has been terminated as Servicer in a residential mortgage
loan securitization, either due to a servicing default or to application of
a
servicing performance test or trigger; and
(5)
such
other information as the Purchaser or any Depositor may reasonably request
for
the purpose of compliance with Item 1108(b)(2) of Regulation AB;
With
respect to the information regarding the size, composition and growth of the
Servicer’s portfolio of residential mortgage loans of a type similar to the
Mortgage Loans, the Servicer shall deliver to the Purchaser and to any person
designated by the Purchaser, at the Purchaser’s incremental expense, an agreed
upon procedures report of a reputable, certified public accountant pertaining
to
a comparison of the information provided to it by the Seller against the
information in the related offering document in connection with the related
Securitization Transaction if reasonably requested by the
Purchaser;
(C) a
description of any material changes during the three-year period immediately
preceding the related Securitization Transaction to the Servicer’s policies or
procedures with respect to the servicing function it will perform under this
Agreement and any Reconstitution Agreements for mortgage loans of a type similar
to the Mortgage Loans;
(D) information
regarding the Servicer’s financial condition, to the extent that there is a
material risk that an adverse financial event or circumstance involving the
Servicer could have a material adverse effect on the performance by the Seller
of its servicing obligations under this Agreement or any Reconstitution
Agreement;
(E) information
regarding advances made by the Servicer on the Mortgage Loans and the Servicer’s
overall servicing portfolio of residential mortgage loans for the three-year
period immediately preceding the related Securitization Transaction, which
may
be limited to a statement by an authorized officer of the Servicer to the effect
that the Servicer has made all advances required to be made on residential
mortgage loans serviced by it during such period, or, if such statement would
not be accurate, information regarding the percentage and type of advances
not
made as required, and the reasons for such failure to advance;
(F) a
description of the Servicer’s processes and procedures designed to address any
special or unique factors involved in servicing loans of a similar type as
the
Mortgage Loans;
(G) a
description of the Servicer’s processes for handling delinquencies, losses,
bankruptcies and recoveries, such as through liquidation of mortgaged
properties, sale of defaulted mortgage loans or workouts;
(H) information
as to how the Servicer defines or determines delinquencies and charge-offs,
including the effect of any grace period, re-aging, restructuring, partial
payments considered current or other practices with respect to delinquency
and
loss experience; and
(I) historical
delinquency information with respect to the Mortgage Loans since origination
of
the Mortgage Loans.
(d) For
the
purpose of satisfying the reporting obligation under the Exchange Act with
respect to any class of asset-backed securities, the Seller shall (or shall
cause each Subservicer and Third-Party Originator to) (i) provide prompt notice
to the Purchaser, any master servicer and any Depositor in writing of (A) any
material litigation or governmental proceedings pending against the Seller,
any
Subservicer or any Third-Party Originator, (B) any affiliations or relationships
that develop following the closing date of a Securitization Transaction between
the Seller, any Subservicer or any Third-Party Originator and any of the parties
specified in clause (D) of paragraph (a) of this Subsection (and any other
parties identified in writing by the requesting party) with respect to such
Securitization Transaction, (C) any Event of Default under the terms of this
Agreement or any Reconstitution Agreement, (D) any merger, consolidation or
sale
of substantially all of the assets of the Seller, and (E) the Seller’s entry
into an agreement with a Subservicer or Subcontractor to perform or assist
in
the performance of any of the Seller’s obligations under this Agreement or any
Reconstitution Agreement and (ii) provide to the Purchaser and any Depositor
a
description of such proceedings, affiliations or relationships.
(e) As
a
condition to the succession to the Seller or any Subservicer as servicer or
subservicer under this Agreement or any Reconstitution Agreement by any Person
(i) into which the Seller or such Subservicer may be merged or consolidated,
or
(ii) which may be appointed as a successor to the Seller or any Subservicer,
the
Seller shall provide to the Purchaser and any Depositor, at least 15 calendar
days prior to the effective date of such succession or appointment, (x) written
notice to the Purchaser and any Depositor of such succession or appointment
and
(y) in writing and in form and substance reasonably satisfactory to the
Purchaser and such Depositor, all information reasonably requested by the
Purchaser or any Depositor in order to comply with its reporting obligation
under Item 6.02 of Form 8-K with respect to any class of asset-backed
securities.
(f) In
addition to such information as the Seller, as Servicer, is obligated to provide
pursuant to other provisions of this Agreement, not later than ten days prior
to
the deadline for the filing of any distribution report on Form 10-D in respect
of any Securitization Transaction that includes any of the Mortgage Loans
serviced by the Seller or any Subservicer, the Seller or such Subservicer,
as
applicable, shall provide to the party responsible for filing such report
(including, if applicable, the master servicer) notice of the occurrence of
any
of the following events along with all information, data and materials related
thereto as may be required to be included in the related distribution report
on
Form 10-D (as specified in the provisions of Regulation AB referenced
below):
(i) any
material modifications, extensions or waivers of pool asset terms, fees,
penalties or payments during the distribution period or that have cumulatively
become material over time (Item 1121(a)(11) of Regulation AB);
(ii) material
breaches of pool asst representations or warranties or transaction covenants
(Item 1121(a)(12) of Regulation AB): and
(iii)
information regarding any pool asset changes (such as additions, substitutions
or repurchases) and any material changes in origination, underwriting or other
criteria for acquisition or selection of pool assets (Item 1121(a)(14) of
Regulation AB).
(g) The
Seller shall provide to Purchaser, any master servicer and any Depositor
evidence of the authorization of the person signing any certification or
statement, financial information and reports, and such other information related
to the Seller or any Subservicer or the Seller or such Subservicers’ performance
hereunder.
| Subsection 13.04. |
Servicer
Compliance Statement.
|
On
or
before March 1 of each calendar year, commencing in 2007, the Seller shall
deliver to the Purchaser, any master servicer and any Depositor a statement
of
compliance addressed to the Purchaser, such master servicer and such Depositor
and signed by an authorized officer of the Seller, to the effect that (i) a
review of the Seller’s activities during the immediately preceding calendar year
(or applicable portion thereof) and of its performance under this Agreement
and
any applicable Reconstitution Agreement during such period has been made under
such officer’s supervision, and (ii) to the best of such officers’ knowledge,
based on such review, the Seller has fulfilled all of its obligations under
this
Agreement and any applicable Reconstitution Agreement in all material respects
throughout such calendar year (or applicable portion thereof) or, if there
has
been a failure to fulfill any such obligation in any material respect,
specifically identifying each such failure known to such officer and the nature
and the status thereof.
| Subsection 13.05. |
Report
on Assessment of Compliance and
Attestation.
|
(a) On
or
before March 1 of each calendar year, commencing in 2007, the Seller
shall:
(i) deliver
to the Purchaser, any master servicer and any Depositor a report (in form and
substance reasonably satisfactory to the Purchaser, such master servicer and
such Depositor) regarding the Seller’s assessment of compliance with the
Servicing Criteria during the immediately preceding calendar year, as required
under Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122 of Regulation
AB. Such report shall be addressed to the Purchaser, such master servicer and
such Depositor and signed by an authorized officer of the Seller, and shall
address each of the applicable Servicing Criteria specified on Exhibit 12
hereto;
(ii) deliver
to the Purchaser, any master servicer and any Depositor a report of a registered
public accounting firm reasonably acceptable to the Purchaser, such master
servicer and such Depositor that attests to, and reports on, the assessment
of
compliance made by the Seller and delivered pursuant to the preceding paragraph.
Such attestation shall be in accordance with Rules 1-02(a)(3) and 2-02(g) of
Regulation S-X under the Securities Act and the Exchange Act;
(iii) cause
each Subservicer, and each Subcontractor determined by the Seller pursuant
to
Subsection 13.06(b) to be “participating in the servicing function” within the
meaning of Item 1122 of Regulation AB, to deliver to the Purchaser, any master
servicer and any Depositor an assessment of compliance and accountants’
attestation as and when provided in paragraphs (a) and (b) of this Subsection;
and
(iv) deliver
to the Purchaser, any Depositor, any Master Servicer and any other Person that
will be responsible for signing the certification (a “Sarbanes Certification”)
required by Rules 13a-14(d) and 15d-14(d) under the Exchange Act (pursuant
to
Section 302 of the Xxxxxxxx-Xxxxx Act of 2002) on behalf of an asset-backed
issuer with respect to a Securitization Transaction a certification, signed
by
the appropriate officer of the Seller in the form attached hereto as Exhibit
11.
The
Seller acknowledges that the parties identified in clause (a)(iv) above may
rely
on the certification provided by the Seller pursuant to such clause in signing
a
Sarbanes Certification and filing such with the Commission. Neither the
Purchaser nor any Depositor will request delivery of a certification under
clause (a)(iv) above unless a Depositor is required under the Exchange Act
to
file an annual report on Form 10-K with respect to an issuing entity whose
asset
pool includes Mortgage Loans.
(b) Each
assessment of compliance provided by a Subservicer pursuant to Subsection
13.05(a)(i) shall address each of the Servicing Criteria specified on a
certification substantially in the form of Exhibit 12 hereto delivered to the
Purchaser concurrently with the execution of this Agreement or, in the case
of a
Subservicer subsequently appointed as such, on or prior to the date of such
appointment. An assessment of compliance provided by a Subcontractor pursuant
to
Subsection 13.05(a)(iii) need not address any elements of the Servicing Criteria
other than those specified by the Seller pursuant to Subsection
13.06.
| Subsection 13.06. |
Use
of Subservicers and Subcontractors.
|
The
Seller shall not hire or otherwise utilize the services of any Subservicer
to
fulfill any of the obligations of the Seller as servicer under this Agreement
or
any Reconstitution Agreement unless the Seller complies with the provisions
of
paragraph (a) of this Subsection. The Seller shall not hire or otherwise utilize
the services of any Subcontractor, and shall not permit any Subservicer to
hire
or otherwise utilize the services of any Subcontractor, to fulfill any of the
obligations of the Seller as servicer under this Agreement or any Reconstitution
Agreement unless the Seller complies with the provisions of paragraph (b) of
this Subsection.
(a) It
shall
not be necessary for the Seller to seek the consent of the Purchaser, any master
servicer or any Depositor to the utilization of any Subservicer. The Seller
shall cause any Subservicer used by the Seller (or by any Subservicer) for
the
benefit of the Purchaser and any Depositor to comply with the provisions of
this
Subsection and with Subsections 13.02, 13.03(c), (e), (f) and (g), 13.04, 13.05
and 13.07 of this Agreement to the same extent as if such Subservicer were
the
Seller, and to provide the information required with respect to such Subservicer
under Subsection 13.03(d) of this Agreement. The Seller shall be responsible
for
obtaining from each Subservicer and delivering to the Purchaser and any
Depositor any Servicer compliance statement required to be delivered by such
Subservicer under Subsection 13.04, any assessment of compliance and attestation
required to be delivered by such Subservicer under Subsection 13.05 and any
certification required to be delivered to the Person that will be responsible
for signing the Sarbanes Certification under Subsection 13.05 as and when
required to be delivered.
(b) It
shall
not be necessary for the Seller to seek the consent of the Purchaser, any master
servicer or any Depositor to the utilization of any Subcontractor. The Seller
shall promptly upon request provide to the Purchaser, any master servicer and
any Depositor (or any designee of the Depositor, such as an administrator)
a
written description (in form and substance satisfactory to the Purchaser, such
master servicer and such Depositor) of the role and function of each
Subcontractor utilized by the Seller or any Subservicer, specifying (i) the
identity of each such Subcontractor, (ii) which (if any) of such Subcontractors
are “participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, and (iii) which elements of the Servicing Criteria will be
addressed in assessments of compliance provided by each Subcontractor identified
pursuant to clause (ii) of this paragraph.
As
a
condition to the utilization of any Subcontractor determined to be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, the Seller shall cause any such Subcontractor used by the Seller
(or by any Subservicer) for the benefit of the Purchaser and any Depositor
to
comply with the provisions of Subsections 13.05 and 13.07 of this Agreement
to
the same extent as if such Subcontractor were the Seller. The Seller shall
be
responsible for obtaining from each Subcontractor and delivering to the
Purchaser and any Depositor any assessment of compliance and attestation
required to be delivered by such Subcontractor under Subsection 13.05, in each
case as and when required to be delivered.
| Subsection 13.07. |
Indemnification;
Remedies.
|
(a) The
Seller shall indemnify the Purchaser, each affiliate of the Purchaser, and
each
of the following parties participating in a Securitization Transaction: each
sponsor and issuing entity; each Person (including, but not limited to, any
master servicer, if applicable) responsible for the preparation, execution
or
filing of any report required to be filed with the Commission with respect
to
such Securitization Transaction, or for execution of a certification pursuant
to
Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to such
Securitization Transaction; each broker dealer acting as underwriter, placement
agent or initial purchaser, each Person who controls any of such parties or
the
Depositor (within the meaning of Section 15 of the Securities Act and Section
20
of the Exchange Act); and the respective present and former directors, officers,
employees, agents and affiliates of each of the foregoing and of the Depositor
(each, an “Indemnified Party”), and shall hold each of them harmless from and
against any claims, losses, damages, penalties, fines, forfeitures, legal fees
and expenses and related costs, judgments, and any other costs, fees and
expenses that any of them may sustain arising out of or based upon:
(i)(A)
any untrue statement of a material fact contained or alleged to be contained
in
any information, report, certification, data, accountants’ letter or other
material provided under this Section 13 by or on behalf of the Seller, or
provided in written or electronic form under this Section 13 by or on behalf
of
any Subservicer, Subcontractor or Third-Party Originator (collectively, the
“Seller/Servicer Information”), or (B) the omission or alleged omission to state
in the Seller/Servicer Information a material fact required to be stated in
the
Seller/Servicer Information or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, by way of clarification, that clause (B) of this paragraph
shall be construed solely by reference to the Seller/Servicer Information and
not to any other information communicated in connection with a sale or purchase
of securities, without regard to whether the Seller/Servicer Information or
any
portion thereof is presented together with or separately from such other
information;
(ii) any
failure by the Seller, any Subservicer, any Subcontractor or any Third-Party
Originator to deliver any information, report, certification, accountants’
letter or other material when and as required under this Section 13, including
any failure by the Seller to identify pursuant to Subsection 13.06(b) any
Subcontractor “participating in the servicing function” within the meaning of
Item 1122 of Regulation AB; or
(iii) any
breach by the Seller of a representation or warranty set forth in Subsection
13.02(a) or in a writing furnished pursuant to Subsection 13.02(b) and made
as
of a date prior to the closing date of the related Securitization Transaction,
to the extent that such breach is not cured by such closing date, or any breach
by the Seller of a representation or warranty in a writing furnished pursuant
to
Subsection 13.02(b) to the extent made as of a date subsequent to such closing
date; or
(iv) the
negligence, bad faith or willful misconduct of the Seller in connection with
its
performance under this Section 13.
If
the
indemnification provided for herein is unavailable or insufficient to hold
harmless an Indemnified Party, then the Seller agrees that it shall contribute
to the amount paid or payable by such Indemnified Party as a result of any
claims, losses, damages or liabilities incurred by such Indemnified Party in
such proportion as is appropriate to reflect the relative fault of such
Indemnified Party on the one hand and the Seller on the other.
In
the
case of any failure of performance described in clause (a)(ii) of this
Subsection, the Seller shall promptly reimburse the Purchaser, any Depositor,
as
applicable, and each Person responsible for the preparation, execution or filing
of any report required to be filed with the Commission with respect to such
Securitization Transaction, or for execution of a certification pursuant to
Rule
13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to such
Securitization Transaction, for all costs reasonably incurred by each such
party
in order to obtain the information, report, certification, accountants’ letter
or other material not delivered as required by the Seller, any Subservicer,
any
Subcontractor or any Third-Party Originator.
This
indemnification shall survive the termination of this Agreement or the
termination of any party to this Agreement.
(b)(i) Any
failure by the Seller, any Subservicer, any Subcontractor or any Third-Party
Originator to deliver any information, report, certification, accountants’
letter or other material when and as required under this Section 13, or any
breach by the Seller of a representation or warranty set forth in Subsection
13.02(a) or in a writing furnished pursuant to Subsection 13.02(b) and made
as
of a date prior to the closing date of the related Securitization Transaction,
to the extent that such breach is not cured by such closing date, or any breach
by the Seller of a representation or warranty in a writing furnished pursuant
to
Subsection 13.02(b) to the extent made as of a date subsequent to such closing
date, shall, except as provided in clause (ii) of this paragraph, immediately
and automatically, without notice or grace period, constitute an Event of
Default with respect to the Seller under this Agreement and any applicable
Reconstitution Agreement, and shall entitle the Purchaser, any master servicer
or any Depositor, as applicable, in its sole discretion to terminate the rights
and obligations of the Seller as servicer under this Agreement and/or any
applicable Reconstitution Agreement without payment (notwithstanding anything
in
this Agreement or any applicable Reconstitution Agreement to the contrary)
of
any compensation to the Seller; provided that to the extent that any provision
of this Agreement and/or any applicable Reconstitution Agreement expressly
provides for the survival of certain rights or obligations following termination
of the Seller as servicer, such provision shall be given effect.
(ii) Any
failure by the Seller, any Subservicer or any Subcontractor to deliver any
information, report, certification or accountants’ letter when and as required
under Subsection 13.04 or 13.05, including (except as provided below) any
failure by the Seller to identify pursuant to Subsection 13.06(b) any
Subcontractor “participating in the servicing function” within the meaning of
Item 1122 of Regulation AB, which continues unremedied for ten calendar days
after the date on which such information, report, certification or accountants’
letter was required to be delivered shall constitute an Event of Default with
respect to the Seller under this Agreement and any applicable Reconstitution
Agreement, and shall entitle the Purchaser, any master servicer or any
Depositor, as applicable, in its sole discretion to terminate the rights and
obligations of the Seller as servicer under this Agreement and/or any applicable
Reconstitution Agreement without payment (notwithstanding anything in this
Agreement to the contrary) of any compensation to the Seller; provided that
to
the extent that any provision of this Agreement and/or any applicable
Reconstitution Agreement expressly provides for the survival of certain rights
or obligations following termination of the Seller as servicer, such provision
shall be given effect.
Neither
the Purchaser nor any Depositor shall be entitled to terminate the rights and
obligations of the Seller pursuant to this subparagraph (b)(ii) if a failure
of
the Seller to identify a Subcontractor “participating in the servicing function”
within the meaning of Item 1122 of Regulation AB was attributable solely to
the
role or functions of such Subcontractor with respect to mortgage loans other
than the Mortgage Loans.
(iii) The
Seller shall promptly reimburse the Purchaser (or any designee of the Purchaser,
such as a master servicer) and any Depositor, as applicable, for all reasonable
expenses incurred by the Purchaser (or such designee) or such Depositor, as
such
are incurred, in connection with the termination of the Seller as servicer
and
the transfer of servicing of the Mortgage Loans to a successor servicer. The
provisions of this paragraph shall not limit whatever rights the Purchaser
or
any Depositor may have under other provisions of this Agreement and/or any
applicable Reconstitution Agreement or otherwise, whether in equity or at law,
such as an action for damages, specific performance or injunctive
relief.
SECTION
14. The
Seller.
| Subsection 14.01. |
Additional
Indemnification by the Seller.
|
In
addition to the indemnification provided in Subsection 7.03, the Seller shall
indemnify the Initial Purchaser and any subsequent Purchaser and hold them
harmless against any and all claims, losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments,
and any other costs, fees and expenses that the Initial Purchaser and any
subsequent Purchaser may sustain in any way related to the failure of the Seller
to perform its obligations under this Agreement including but not limited to
its
obligation to service and administer the Mortgage Loans in strict compliance
with the terms of this Agreement, any Reconstitution Agreement or any other
agreement entered into pursuant to Section 12. The indemnification
obligation of the Seller set forth herein shall survive the termination of
this
Agreement notwithstanding any applicable statute of limitations, which the
Seller hereby expressly waives.
| Subsection 14.02. |
Merger
or Consolidation of the Seller.
|
The
Seller shall keep in full force and effect its existence, rights and franchises
as a corporation under the laws of the state of its incorporation except as
permitted herein, and shall obtain and preserve its qualification to do business
as a foreign corporation in each jurisdiction in which such qualification is
or
shall be necessary to protect the validity and enforceability of this Agreement
or any of the Mortgage Loans, and to enable the Seller to perform its duties
under this Agreement.
Any
Person into which the Seller may be merged or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Seller
shall
be a party, or any Person succeeding to the business of the Seller, shall be
the
successor of the Seller hereunder, without the execution or filing of any paper
or any further act on the part of any of the parties hereto, anything herein
to
the contrary notwithstanding; provided, however, that the successor or surviving
Person shall be an institution whose deposits are insured by FDIC or a company
whose business is the origination and servicing of mortgage loans, shall be
a
Xxxxxx Xxx or Xxxxxxx Mac approved seller/servicer and shall satisfy any
requirements of Section 17 with respect to the qualifications of a
successor to the Seller.
| Subsection 14.03. |
Limitation
on Liability of the Seller and
Others.
|
Neither
the Seller nor any of the officers, employees or agents of the Seller shall
be
under any liability to the Purchaser for any action taken or for refraining
from
the taking of any action in good faith in connection with the servicing of
the
Mortgage Loans pursuant to this Agreement, or for errors in judgment; provided,
however, that this provision shall not protect the Seller or any such person
against any breach of warranties or representations made herein, or failure
to
perform its obligations in strict compliance with any standard of care set
forth
in this Agreement, or any liability which would otherwise be imposed by reason
of any breach of the terms and conditions of this Agreement. The Seller and
any
officer, employee or agent of the Seller may rely in good faith on any document
of any kind prima facie properly executed and submitted by any Person respecting
any matters arising hereunder. The Seller shall not be under any obligation
to
appear in, prosecute or defend any legal action which is not incidental to
its
obligation to sell or duty to service the Mortgage Loans in accordance with
this
Agreement and which in its opinion may result in its incurring any expenses
or
liability; provided, however, that the Seller may, with the consent of the
Purchaser, undertake any such action which it may deem necessary or desirable
in
respect to this Agreement and the rights and duties of the parties hereto.
In
such event, the legal expenses and costs of such action and any liability
resulting therefrom shall be expenses, costs and liabilities for which the
Purchaser shall be liable, the Seller shall be entitled to reimbursement
therefor from the Purchaser upon written demand except when such expenses,
costs
and liabilities are subject to the Seller’s indemnification under Subsections
7.03 or 13.01.
| Subsection 14.04. |
Seller
Not to Resign.
|
The
Seller shall not assign this Agreement or resign from the obligations and duties
hereby imposed on it except by mutual consent of the Seller and the Purchaser
or
upon the determination that its servicing duties hereunder are no longer
permissible under applicable law and such incapacity cannot be cured by the
Seller in which event the Seller may resign as servicer. Any such determination
permitting the resignation of the Seller as servicer shall be evidenced by
an
Opinion of Counsel to such effect delivered to the Purchaser which Opinion
of
Counsel shall be in form and substance acceptable to the Purchaser and which
shall be provided at the cost of the Seller. No such resignation shall become
effective until a successor shall have assumed the Seller’s responsibilities and
obligations hereunder in the manner provided in Section 17.
| Subsection 14.05. |
No
Transfer of Servicing.
|
The
Seller acknowledges that the Purchaser has acted in reliance upon the Seller’s
independent status, the adequacy of its servicing facilities, plan, personnel,
records and procedures, its integrity, reputation and financial standing and
the
continuance thereof. Without in any way limiting the generality of this Section,
the Seller shall not either assign this Agreement or the servicing hereunder
or
delegate its rights or duties hereunder or any portion thereof, or sell or
otherwise dispose of all or substantially all of its property or assets, without
the prior written approval of the Purchaser, which consent will not be
unreasonably withheld.
SECTION
15. DEFAULT.
| Subsection 15.01. |
Events
of Default.
|
In
case
one or more of the following Events of Default by the Seller shall occur and
be
continuing, that is to say:
(i) any
failure by the Seller to remit to the Purchaser any payment or advance required
to be made under the terms of this Agreement which continues unremedied for
a
period of one Business Day following the day on which such payment should have
been remitted; or
(ii) any
failure to deliver the remittance report required pursuant to Subsection 11.15
in accordance with such Section which failure continues unremedied for a
period of two Business Days after the date upon which written notice requiring
the same to be remedied shall have been given to the Seller by the Purchaser
or
its designee; or
(iii) failure
on the part of the Seller duly to observe or perform in any material respect
any
other of the covenants or agreements on the part of the Seller set forth in
this
Agreement which continues unremedied for a period of thirty days (except that
such number of days shall be fifteen in the case of a failure to pay any premium
for any insurance policy required to be maintained under this Agreement) after
the date on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Seller by the Purchaser; or
(iv) a
decree
or order of a court or agency or supervisory authority having jurisdiction
for
the appointment of a conservator or receiver or liquidator in any insolvency,
bankruptcy, readjustment of debt, marshalling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs, shall
have been entered against the Seller and such decree or order shall have
remained in force undischarged or unstayed for a period of sixty days;
or
(v) the
Seller shall consent to the appointment of a conservator or receiver or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshalling
of
assets and liabilities or similar proceedings of or relating to the Seller
or of
or relating to all or substantially all of its property; or
(vi) the
Seller shall admit in writing its inability to pay its debts generally as they
become due, file a petition to take advantage of any applicable insolvency
or
reorganization statute, make an assignment for the benefit of its creditors,
or
voluntarily suspend payment of its obligations; or
(vii) failure
by the Seller to be in compliance with the “doing business” or licensing laws of
any jurisdiction where a Mortgaged Property is located; or
(viii) the
Seller ceases to meet the qualifications of either a Xxxxxx Xxx or Xxxxxxx
Mac
seller/servicer, the Seller is not eligible to act as servicer or master
servicer for mortgage loans subject to residential mortgage backed securities
transactions rated by any nationally recognized rating agency or is eligible
to
act as such only with enhanced credit support, or the Seller’s credit rating is
reduced by any nationally recognized rating agency below its rating on the
Initial Closing Date; or
(ix) the
Seller attempts to assign its right to servicing compensation hereunder or
the
Seller attempts, without the consent of the Purchaser, to sell or otherwise
dispose of all or substantially all of its property or assets or to assign
this
Agreement or the servicing responsibilities hereunder or to delegate its duties
hereunder or any portion thereof; or
(x) the
Seller fails to duly perform, within the required time period, its obligations
under Subsections 11.24 or 11.25 of the Servicing Addendum, which failure
continues unremedied for a period of fifteen (15) days after the date on which
written notice of such failure, requiring the same to be remedied, shall have
been given to the Seller by any party to this Agreement or by any master
servicer responsible for master servicing the Mortgage Loans pursuant to a
securitization of such Mortgage Loans;
then,
and
in each and every such case, so long as an Event of Default shall not have
been
remedied, the Purchaser, by notice in writing to the Seller may, in addition
to
whatever rights the Purchaser may have at law or equity to damages, including
injunctive relief and specific performance, terminate all the rights and
obligations of the Seller as servicer under this Agreement. On or after the
receipt by the Seller of such written notice, all authority and power of the
Seller to service the Mortgage Loans under this Agreement shall on the date
set
forth in such notice pass to and be vested in the successor appointed pursuant
to Section 17.
All
Servicing Transfer Costs shall be paid by the Seller upon presentation of
reasonable documentation of such costs. In addition, the Seller shall obtain
assignable life-of-loan Tax Service Contracts with respect to the Mortgage
Loans
for the Purchaser or its designee at no cost to the Purchaser or its designee;
provided however, that if the Seller fails to purchase such Tax Service
Contract, the Seller shall be required to reimburse the Purchaser for all costs
and expenses incurred by the Purchaser in connection with the purchase of any
such Tax Service Contract.
| Subsection 15.02. |
Waiver
of Defaults.
|
The
Purchaser may waive any default by the Seller in the performance of its
obligations hereunder and its consequences. Upon any such waiver of a past
default, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been remedied for every purpose of this
Agreement. No such waiver shall extend to any subsequent or other default or
impair any right consequent thereon except to the extent expressly so
waived.
SECTION
16. Termination.
The
respective obligations and responsibilities of the Seller, as servicer, shall
terminate upon the distribution to the Purchaser of the final payment or
liquidation with respect to the last Mortgage Loan (or advances of same by
the
Seller) or the disposition of all property acquired upon foreclosure or deed
in
lieu of foreclosure with respect to the last Mortgage Loan and the remittance
of
all funds due hereunder unless terminated with respect to all or a portion
of
the Mortgage Loans on an earlier date at the option of the Purchaser pursuant
to
this Section 16 or pursuant to Section 15. The Purchaser may terminate
the Seller as servicer pursuant to this Section 16 without cause if the
Purchaser pays to the Seller a termination fee based on the fair market value
of
the related servicing rights as mutually agreed to between the Seller and the
Purchaser. Upon written request from the Purchaser in connection with any such
termination, the Seller shall prepare, execute and deliver, any and all
documents and other instruments, place in the Purchaser’s possession all
Mortgage Files, and do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise, at the Purchaser’s sole expense. The Seller
agrees to cooperate with the Purchaser and such successor in effecting the
termination of the Seller’s responsibilities and rights hereunder as servicer,
including, without limitation, the transfer to such successor for administration
by it of all cash amounts or Permitted Investments which shall at the time
be
credited by the Seller to the Custodial Account, REO Account or Escrow Account
or thereafter received with respect to the Mortgage Loans.
SECTION
17. Successor
to the Seller.
Prior
to termination of Seller’s responsibilities and duties under this Agreement
pursuant to Section 12, 15 or 16, the Purchaser shall (i) succeed to and
assume all of the Seller’s responsibilities, rights, duties and obligations
under this Agreement, or (ii) appoint a successor which shall succeed to all
rights and assume all of the responsibilities, duties and liabilities of the
Seller as servicer under this Agreement. In connection with such appointment
and
assumption, the Purchaser may make such arrangements for the compensation of
such successor out of payments on Mortgage Loans as it and such successor shall
agree. In the event that the Seller’s duties, responsibilities and liabilities
as servicer under this Agreement should be terminated pursuant to the
aforementioned Sections, the Seller shall discharge such duties and
responsibilities during the period from the date it acquires knowledge of such
termination until the effective date thereof with the same degree of diligence
and prudence which it is obligated to exercise under this Agreement, and shall
take no action whatsoever that might impair or prejudice the rights or financial
condition of the Purchaser or such successor. The termination of the Seller
as
servicer pursuant to the aforementioned Sections shall not become effective
until a successor shall be appointed pursuant to this Section 17 and shall
in no event relieve the Seller of the representations and warranties made
pursuant to Subsections 7.01 and 7.02 and the remedies available to the
Purchaser under Subsection 7.03, 7.04 or 7.05, it being understood and agreed
that the provisions of such Subsections 7.01, 7.02, 7.03, 7.04 and 7.05 shall
be
applicable to the Seller notwithstanding any such resignation or termination
of
the Seller, or the termination of this Agreement.
Any
successor appointed as provided herein shall execute, acknowledge and deliver
to
the Seller and to the Purchaser an instrument accepting such appointment,
whereupon such successor shall become fully vested with all the rights, powers,
duties, responsibilities, obligations and liabilities of the Seller, with like
effect as if originally named as a party to this Agreement provided, however,
that such successor shall not assume, and Seller shall indemnify such successor
for, any and all liabilities arising out of the Seller’s acts as servicer. Any
termination of the Seller as servicer pursuant to Section 12, 15 or 16
shall not affect any claims that the Purchaser may have against the Seller
arising prior to any such termination or resignation or remedies with respect
to
such claims.
The
Seller shall timely deliver to the successor the funds in the Custodial Account,
REO Account and the Escrow Account and the Mortgage Files and related documents
and statements held by it hereunder and the Seller shall account for all funds.
The Seller shall execute and deliver such instruments and do such other things
all as may reasonably be required to more fully and definitely vest and confirm
in the successor all such rights, powers, duties, responsibilities, obligations
and liabilities of the Seller as servicer. The successor shall make arrangements
as it may deem appropriate to reimburse the Seller for amounts the Seller
actually expended as servicer pursuant to this Agreement which the successor
is
entitled to retain hereunder and which would otherwise have been recovered
by
the Seller pursuant to this Agreement but for the appointment of the successor
servicer.
SECTION
18. Financial
Statements.
The
Seller understands that in connection with the Purchaser’s marketing of the
Mortgage Loans, the Purchaser may make available to prospective purchasers
the
Seller’s financial statements for the most recently completed three fiscal years
respecting which such statements are available. The Seller also shall make
available any comparable interim statements to the extent any such statements
have been prepared by the Seller (and are available upon request to members
or
stockholders of the Seller or the public at large). The Seller, if it has not
already done so, agrees to furnish promptly to the Purchaser copies of the
statements specified above. The Seller also shall make available information
on
its servicing performance with respect to mortgage loans serviced for others,
including delinquency ratios.
The
Seller also agrees to allow access to knowledgeable financial, accounting,
origination and servicing officers of the Seller for the purpose of answering
questions asked by any prospective purchaser regarding recent developments
affecting the Seller, its loan origination or servicing practices or the
financial statements of the Seller.
SECTION
19. Mandatory
Delivery: Grant of Security Interest.
The
sale and delivery of each Mortgage Loan on or before the related Closing Date
is
mandatory from and after the date of the execution of the related Confirmation,
it being specifically understood and agreed that each Mortgage Loan is unique
and identifiable on the date hereof and that an award of money damages would
be
insufficient to compensate the Initial Purchaser for the losses and damages
incurred by the Initial Purchaser (including damages to prospective purchasers
of the Mortgage Loans) in the event of the Seller’s failure to deliver each of
the related Mortgage Loans or one or more Mortgage Loans otherwise acceptable
to
the Initial Purchaser on or before the related Closing Date. The Seller hereby
grants to the Initial Purchaser a lien on and a continuing security interest
in
each Mortgage Loan and each document and instrument evidencing each such
Mortgage Loan to secure the performance by the Seller of its obligation
hereunder, and the Seller agrees that it holds such Mortgage Loans in custody
for the Initial Purchaser subject to the Initial Purchaser’s (i) right to reject
any Mortgage Loan under the terms of this Agreement and the related
Confirmation, and (ii) obligation to pay the related Purchase Price for the
Mortgage Loans. All rights and remedies of the Purchaser under this Agreement
are distinct from, and cumulative with, any other rights or remedies under
this
Agreement or afforded by law or equity and all such rights and remedies may
be
exercised concurrently, independently or successively.
SECTION
20. Notices.
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if mailed, by registered or certified mail,
return receipt requested, or, if by other means, when received by the other
party at the address as follows:
(i)
if
to the
Purchaser:
Citigroup
Global Markets Realty Corp.
000
Xxxxxxxxx Xxxxxx, 0xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxx Xxxxxxxxx
(ii)
if
to the
Seller:
HomeBanc
Mortgage Corporation
0000
Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxx 00000
Attention:
Xxxxx X. Xxxxxxx, EVP Capital Markets
Facsimile:
(000) 000-0000
with
a
copy to:
HomeBanc
Mortgage Corporation.
0000
Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxx 00000
Attention:
General Counsel
Facsimile:
(000) 000-0000
or
such
other address as may hereafter be furnished to the other party by like notice.
Any such demand, notice or communication hereunder shall be deemed to have
been
received on the date delivered to or received at the premises of the addressee
(as evidenced, in the case of registered or certified mail, by the date noted
on
the return receipt).
SECTION
21. Severability
Clause.
Any
part, provision, representation or warranty of this Agreement which is
prohibited or which is held to be void or unenforceable shall be ineffective
to
the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof. Any part, provision, representation or warranty
of
this Agreement which is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall be ineffective, as to such jurisdiction,
to the extent of such prohibition or unenforceability without invalidating
the
remaining provisions hereof, and any such prohibition or unenforceability in
any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof. If the invalidity of
any
part, provision, representation or warranty of this Agreement shall deprive
any
party of the economic benefit intended to be conferred by this Agreement, the
parties shall negotiate, in good-faith, to develop a structure the economic
effect of which is nearly as possible the same as the economic effect of this
Agreement without regard to such invalidity.
SECTION
22. Counterparts.
This
Agreement may be executed simultaneously in any number of counterparts. Each
counterpart shall be deemed to be an original, and all such counterparts shall
constitute one and the same instrument.
SECTION
23. Governing
Law.
GOVERNING LAW; SUBMISSION TO JURISDICTION. THE AGREEMENT SHALL BE CONSTRUED
IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ANY
CONFLICTS OF LAW PROVISIONS (EXCEPT FOR SECTIONS 5-1401 AND 5
EACH
PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(A)
SUBMITS
FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT
THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE STATE
OF
NEW YORK, THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN
DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(B)
CONSENTS
THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH COURTS AND, TO THE
EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE
TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH
ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO
PLEAD OR CLAIM THE SAME;
(C)
AGREES
THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE EFFECTED BY
MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY
SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS ADDRESS SET FORTH IN SECTION
20;
AND
(D)
AGREES
THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN
ANY
OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO XXX IN ANY OTHER
JURISDICTION.
SECTION
24. Intention
of the Parties.
It is
the intention of the parties that the Initial Purchaser is purchasing, and
the
Seller is selling, the Mortgage Loans and not a debt instrument of the Seller
or
another security. Accordingly, the parties hereto each intend to treat the
transaction for Federal income tax purposes as a sale by the Seller, and a
purchase by the Purchaser, of the Mortgage Loans. The Initial Purchaser shall
have the right to review the Mortgage Loans and the related Mortgage Loan Files
to determine the characteristics of the Mortgage Loans which shall affect the
federal income tax consequences of owning the Mortgage Loans and the Seller
shall cooperate with all reasonable requests made by the Initial Purchaser
in
the course of such review. In the event, for any reason, any transaction
contemplated herein is construed by any court or regulatory authority as a
borrowing rather than as a sale, the Seller and the Purchaser intend that the
Purchaser or its assignee, as the case may be, shall have a perfected first
priority security interest in the Mortgage Loans, the Custodial Account and
the
proceeds of any and all of the foregoing (collectively, the “Collateral”), free
and clear of adverse claims. In such case, the Seller shall be deemed to have
hereby granted to the Purchaser or its assignee, as the case may be, a first
priority security interest in and lien upon the Collateral, free and clear
of
adverse claims. In such event, the related Confirmation and this Agreement
shall
constitute a security agreement, the Purchaser’s custodian shall be deemed to be
an independent custodian for purposes of perfection of the security interest
granted to the Purchaser or its assignee, as the case may be, and the Purchaser
or its assignee, as the case may be, shall have all of the rights of a secured
party under applicable law.
SECTION
25. Successors
and Assigns.
This
Agreement shall bind and inure to the benefit of and be enforceable by the
Seller and the Purchaser and the respective successors and assigns of the Seller
and the Purchaser. The Purchaser may assign this Agreement to any Person to
whom
any Mortgage Loan is transferred whether pursuant to a sale or financing and
to
any Person to whom the servicing or master servicing of any Mortgage Loan is
sold or transferred. Upon any such assignment, the Person to whom such
assignment is made shall succeed to all rights and obligations of the Purchaser
under this Agreement to the extent of the related Mortgage Loan or Mortgage
Loans and this Agreement, to the extent of the related Mortgage Loan or Loans,
shall be deemed to be a separate and distinct Agreement between the Seller
and
such Purchaser, and a separate and distinct Agreement between the Seller and
each other Purchaser to the extent of the other related Mortgage Loan or Loans.
In the event that this Agreement is assigned to any Person to whom the servicing
or master servicing of any Mortgage Loan is sold or transferred, the rights
and
benefits under this agreement which inure to the Purchaser shall inure to the
benefit of both the Person to whom such Mortgage Loan is transferred and the
Person to whom the servicing or master servicing of the Mortgage Loan has been
transferred; provided that, the right to require a Mortgage Loan to be
repurchased by the Seller pursuant to Subsection 7.03, 7.04 or 7.05 shall be
retained solely by the Purchaser. This Agreement shall not be assigned, pledged
or hypothecated by the Seller to a third party without the consent of the
Purchaser;
provided, however, the parties hereby acknowledge and agree that the Seller
may
pledge the servicing rights appurtenant to the Mortgage Loans and the Seller’s
right to be reimbursed for Monthly Advances to a warehouse lender provided
that,
in the event the Seller defaults under any agreement with a warehouse lender,
any successor servicer appointed by the warehouse lender shall meet the
requirements set forth in this Agreement and such successor servicer shall
be
approved by the Purchaser. The Seller shall be responsible for any Servicing
Transfer Costs incurred as a result of the foregoing.
SECTION
26. Waivers.
No term
or provision of this Agreement may be waived or modified unless such waiver
or
modification is in writing and signed by the party against whom such waiver
or
modification is sought to be enforced.
SECTION
27. Exhibits.
The
exhibits to this Agreement are hereby incorporated and made a part hereof and
are an integral part of this Agreement.
SECTION
28. General
Interpretive Principles.
For
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires:
(a) the
terms
defined in this Agreement have the meanings assigned to them in this Agreement
and include the plural as well as the singular, and the use of any gender herein
shall be deemed to include the other gender;
(b) accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles;
(c) references
herein to “Articles,” “Sections,” “Subsections,” “Paragraphs,” and other
Subdivisions without reference to a document are to designated Articles,
Sections, Subsections, Paragraphs and other subdivisions of this
Agreement;
(d) reference
to a Subsection without further reference to a Section is a reference to
such Subsection as contained in the same Section in which the reference
appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(e) the
words
“herein,” “hereof,” “hereunder” and other words of similar import refer to this
Agreement as a whole and not to any particular provision; and
(f) the
term
“include” or “including” shall mean without limitation by reason of
enumeration.
SECTION
29. Nonsolicitation.
The
Seller covenants and agrees that it will not take any action or permit or cause
any action to be taken by any of its agents or affiliates, to personally, by
telephone, mail, e-mail or otherwise, solicit the Mortgagor under any Mortgage
Loan to refinance the Mortgage Loan, in whole or in part or provide information
to any other entity to solicit the refinancing of any Mortgage Loan in whole
or
in part; provided that, the foregoing shall not preclude the Seller from
engaging in solicitations to the general public by newspaper, radio, television
or other media which are not directed toward the Mortgagors or from refinancing
the Mortgage Loan of any Mortgagor who, without solicitation, contacts the
Seller to request the refinancing of the related Mortgage Loan.
Notwithstanding the foregoing, it is understood and agreed that statement
messaging, mass mailing based on commercially acquired mailing lists, newspaper,
radio and television advertisements shall not constitute solicitation under
this
Section 29.
SECTION
30. Reproduction
of Documents.
This
Agreement and all documents relating thereto, including, without limitation,
(a)
consents, waivers and modifications which may hereafter be executed, (b)
documents received by any party at the closing, and (c) financial statements,
certificates and other information previously or hereafter furnished, may be
reproduced by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties agree that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in
evidence.
SECTION
31. Further
Agreements.
The
Seller and the Purchaser each agree to execute and deliver to the other such
reasonable and appropriate additional documents, instruments or agreements
as
may be necessary or appropriate to effectuate the purposes of this
Agreement.
Without
limiting the generality of the foregoing, the Seller shall cooperate with the
Purchaser in connection with any Whole Loan Transfer or Securitization
Transaction contemplated by the Initial Purchaser pursuant to Section 12
hereof. In such connection, the Seller shall (a) execute any agreement in
accordance with the provisions of Section 12, and (b) provide to the
Initial Purchaser or any prospective purchaser: (i) any and all information
and
appropriate verification of information, whether through letters of its auditors
and counsel or otherwise, as the Initial Purchaser shall reasonably request;
and
(ii) such representations, warranties, covenants, opinions of counsel, letters
from auditors, and certificates of public officials or officers of the Seller
as
are reasonably believed necessary by the Initial Purchaser in connection with
such transactions. The requirement of the Seller pursuant to (ii) above shall
terminate on the final Reconstitution Date. Prior to incurring any out-of-pocket
expenses pursuant to this paragraph, the Seller shall notify the Initial
Purchaser in writing of the estimated amount of such expense. The Initial
Purchaser shall reimburse the Seller for any such expense following its receipt
of appropriate details thereof.
SECTION
32. Entire
Agreement.
This
Agreement constitutes the entire agreement and understanding of the parties
with
respect to the matters and transactions contemplated by this Agreement and,
except to the extent otherwise set forth in writing, supersedes any prior
agreement and understandings with respect to those matters and
transactions.
SECTION
33. Third
Party Beneficiary.
For
purposes of this Agreement any master servicer shall be considered a third
party
beneficiary to this Agreement entitled to all the rights and benefits accruing
to any master servicer herein as if it were a direct party to this
Agreement.
IN
WITNESS WHEREOF, the Seller and the Purchaser have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of
the
date first above written.
HOMEBANC
MORTGAGE CORPORATION
(Seller)
By:/s/
[Authorized Signatory]
Name:________________________________
Title:_________________________________
CITIGROUP
GLOBAL MARKETS REALTY CORP.
(Initial
Purchaser)
By:/s/
[Authorized Signatory]
Name:________________________________
Title:_________________________________
EXHIBIT
1
SELLER’S
OFFICER’S CERTIFICATE
I,
________________________, hereby certify that I am the duly elected
______________ of HomeBanc Mortgage Corporation, a Delaware corporation (the
“Seller”), and further certify, on behalf of the Seller as follows:
1. Attached
hereto as Attachment I are a true and correct copy of the Certificate of
Incorporation and by-laws of the Seller as are in full force and effect on
the
date hereof.
2. No
proceedings looking toward merger, liquidation, dissolution or bankruptcy of
the
Seller are pending or contemplated.
3. Each
person who, as an officer or attorney-in-fact of the Seller, signed (a) the
Master Mortgage Loan Purchase and Servicing Agreement (the “Purchase
Agreement”), dated as of June 1, 2006, by and between the Seller and Citigroup
Global Markets Realty Corp. (the “Purchaser”); (b) the Confirmation, dated
_____________ 200_, between the Seller and the Purchaser (the “Confirmation”);
and (c) any other document delivered prior hereto or on the date hereof in
connection with the sale and servicing of the Mortgage Loans in accordance
with
the Purchase Agreement and the Confirmation was, at the respective times of
such
signing and delivery, and is as of the date hereof, duly elected or appointed,
qualified and acting as such officer or attorney-in-fact, and the signatures
of
such persons appearing on such documents are their genuine
signatures.
4. Attached
hereto as Attachment II is a true and correct copy of the resolutions duly
adopted by the board of directors of the Seller on ________________, 200_ (the
“Resolutions”) with respect to the authorization and approval of the sale and
servicing of the Mortgage Loans; said Resolutions have not been amended,
modified, annulled or revoked and are in full force and effect on the date
hereof.
5. Attached
hereto as Attachment III is a Certificate of Good Standing of the Seller dated
______________, 200_. No event has occurred since ___________________, 200_
which has affected the good standing of the Seller under the laws of the State
of ___________.
6. All
of
the representations and warranties of the Seller contained in Subsections 7.01
and 7.02 of the Purchase Agreement were true and correct in all material
respects as of the date of the Purchase Agreement and are true and correct
in
all material respects as of the date hereof.
7. The
Seller has performed all of its duties and has satisfied all the material
conditions on its part to be performed or satisfied prior to the related Closing
Date pursuant to the Purchase Agreement and the related
Confirmation.
All
capitalized terms used herein and not otherwise defined shall have the meaning
assigned to them in the Purchase Agreement.
IN
WITNESS WHEREOF, I have hereunto signed my name and affixed the seal of the
Seller.
Dated:
______________________
[Seal]
HOMBANC
MORTGAGE CORPORATION (Seller)
By:__________________________________
Name:________________________________
Title:
Vice President
I,
_______________________, Secretary of the Seller, hereby certify that
_________________________ is the duly elected, qualified and acting Vice
President of the Seller and that the signature appearing above is his genuine
signature.
IN
WITNESS WHEREOF, I have hereunto signed my name.
Dated:
_____________________
[Seal]
HOMBANC
MORTGAGE CORPORATION
(Seller)
By:__________________________________
Name:________________________________
Title:
[Assistant] Secretary
EXHIBIT
2
[FORM
OF
OPINION OF COUNSEL TO THE SELLER]
______________________________
(Date)
Citigroup
Global Markets Realty Corp.
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
|
Re:
|
Master
Mortgage Loan Purchase and Servicing Agreement, dated as of June
1,
2006
|
Gentlemen:
I
have
acted as counsel to HomeBanc Mortgage Corporation, a _________________ (the
“Seller”), in connection with the sale of certain mortgage loans by the Seller
to Citigroup Global Markets Realty Corp. (the “Purchaser”) pursuant to (i) a
Master Mortgage Loan Purchase and Servicing Agreement, dated as of June 1,
2006,
between the Seller and the Purchaser (the “Purchase Agreement”), and (ii) the
Confirmation, dated __________, 200_, between the Seller and the Purchaser
(the
“Confirmation”). Capitalized terms not otherwise defined herein have the
meanings set forth in the Purchase Agreement.
In
connection with rendering this opinion letter, I, or attorneys working under
my
direction, have examined, among other things, originals, certified copies or
copies otherwise identified to my satisfaction as being true copies of the
following:
|
A.
|
The
Purchase Agreement;
|
|
B.
|
The
Confirmation;
|
|
C.
|
The
Seller’s Certificate of Incorporation and by-laws, as amended to date;
and
|
|
D.
|
Resolutions
adopted by the Board of Directors of the Seller with reference to
actions
relating to the transactions covered by this opinion (the “Board
Resolutions”).
|
For
the
purpose of rendering this opinion, I have made such documentary, factual and
legal examinations as I deemed necessary under the circumstances. As to factual
matters, I have relied upon statements, certificates and other assurances of
public officials and of officers and other representatives of the Seller, and
upon such other certificates as I deemed appropriate, which factual matters
have
not been independently established or verified by me. I have also assumed,
among
other things, the genuineness of all signatures, the legal capacity of all
natural persons, the authenticity of all documents submitted to me as originals,
and the conformity to original documents of all documents submitted to me as
copies and the authenticity of the originals of such copied
documents.
On
the
basis of and subject to the foregoing examination, and in reliance thereon,
and
subject to the assumptions, qualifications, exceptions and limitations expressed
herein, I am of the opinion that:
1. The
Seller has been duly incorporated and is validly existing and in good standing
under the laws of the State of Delaware with corporate power and authority
to
own its properties and conduct its business as presently conducted by it. The
Seller has the corporate power and authority to service the Mortgage Loans,
and
to execute, deliver, and perform its obligations under the Purchase Agreement
and the Confirmation (sometimes collectively, the “Agreements”).
2. The
Purchase Agreement and the Confirmation have been duly and validly authorized,
executed and delivered by the Seller.
3. The
Purchase Agreement and the Confirmation constitute valid, legal and binding
obligations of the Seller, enforceable against the Seller in accordance with
their respective terms.
4. No
consent, approval, authorization or order of any state or federal court or
government agency or body is required for the execution, delivery and
performance by the Seller of the Purchase Agreement and the Confirmation, or
the
consummation of the transactions contemplated by the Purchase Agreement and
the
Confirmation, except for those consents, approvals, authorizations or orders
which previously have been obtained.
5. Neither
the servicing of the Mortgage Loans by the Seller as provided in the Purchase
Agreement and the Confirmation, nor the fulfillment of the terms of or the
consummation of any other transactions contemplated in the Purchase Agreement
and the Confirmation will result in a breach of any term or provision of the
certificate of incorporation or by-laws of the Seller, or, to the best of my
knowledge, will conflict with, result in a breach or violation of, or constitute
a default under, (i) the terms of any indenture or other agreement or instrument
known to me to which the Seller is a party or by which it is bound, (ii) any
State of Delaware or federal statute or regulation applicable to the Seller,
or
(iii) any order of any State of Delaware or federal court, regulatory body,
administrative agency or governmental body having jurisdiction over the Seller,
except in any such case where the default, breach or violation would not have
a
material adverse effect on the Seller or its ability to perform its obligations
under the Purchase Agreement.
6. There
is
no action, suit, proceeding or investigation pending or, to the best of my
knowledge, threatened against the Seller which, in my judgment, either in any
one instance or in the aggregate, would draw into question the validity of
the
Purchase Agreement or which would be likely to impair materially the ability
of
the Seller to perform under the terms of the Purchase Agreement.
7. The
sale
of each Mortgage Note and Mortgage as and in the manner contemplated by the
Purchase Agreement is sufficient fully to transfer to the Purchaser all right,
title and interest of the Seller thereto as noteholder and
mortgagee.
8. The
Assignments of Mortgage are in recordable form and upon completion will be
acceptable for recording under the laws of the State of Delaware. When endorsed,
as provided in the Agreement, the Mortgage Notes will be duly endorsed under
Delaware law.
The
opinions above are subject to the following additional assumptions, exceptions,
qualifications and limitations:
A. I
have
assumed that all parties to the Agreements other than the Seller have all
requisite power and authority to execute, deliver and perform their respective
obligations under each of the Agreements, and that the Agreements have been
duly
authorized by all necessary corporate action on the part of such parties, have
been executed and delivered by such parties and constitute the legal, valid
and
binding obligations of such parties.
B. My
opinion expressed in paragraphs 3 and 7 above is subject to the qualifications
that (i) the enforceability of the Agreements may be limited by the effect
of
laws relating to (1) bankruptcy, reorganization, insolvency, moratorium or
other
similar laws now or hereafter in effect relating to creditors’ rights generally,
including, without limitation, the effect of statutory or other laws regarding
fraudulent conveyances or preferential transfers, and (2) general principles
of
equity upon the specific enforceability of any of the remedies, covenants or
other provisions of the Agreements and upon the availability of injunctive
relief or other equitable remedies and the application of principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) as such principles relate to, limit or affect the enforcement
of creditors’ rights generally and the discretion of the court before which any
proceeding for such enforcement may be brought; and (ii) I express no opinion
herein with respect to the validity, legality, binding effect or enforceability
of (a) provisions for indemnification in the Agreements to the extent such
provisions may be held to be unenforceable as contrary to public policy or
(b)
Section 19 of the Purchase Agreement.
C. I
have
assumed, without independent check or certification, that there are no
agreements or understandings among the Seller, the Purchaser and any other
party
which would expand, modify or otherwise affect the terms of the documents
described herein or the respective rights or obligations of the parties
thereunder.
I
am
admitted to practice in the State of Maryland, and I render no opinion herein
as
to matters involving the laws of any jurisdiction other than the State of
Maryland and the Federal laws of the United States of America.
Very
truly yours,
EXHIBIT
3
SECURITY
RELEASE CERTIFICATION
I. Release
of Security Interest
___________________________,
hereby relinquishes any and all right, title and interest it may have in and
to
the Mortgage Loans described in Exhibit
A
attached
hereto upon purchase thereof by Citigroup Global Markets Realty Corp. from
the
Seller named below pursuant to that certain Master Mortgage Loan Purchase and
Servicing Agreement, dated as of June 1, 2006, as of the date and time of
receipt by ______________________________ of $__________ for such Mortgage
Loans
(the “Date and Time of Sale”), and certifies that all notes, mortgages,
assignments and other documents in its possession relating to such Mortgage
Loans have been delivered and released to the Seller named below or its
designees as of the Date and Time of Sale.
Name
and
Address of Financial Institution
(Name)
(Address)
By:________________________________
II. Certification
of Release
The
Seller named below hereby certifies to Citigroup Global Markets Realty Corp.
that, as of the Date and Time of Sale of the above mentioned Mortgage Loans
to
Citigroup Global Markets Realty Corp., the security interests in the Mortgage
Loans released by the above named corporation comprise all security interests
relating to or affecting any and all such Mortgage Loans. The Seller warrants
that, as of such time, there are and will be no other security interests
affecting any or all of such Mortgage Loans.
HOMBANC
MORTGAGE CORPORATION
Seller
By:__________________________________
Name:________________________________
Title:_________________________________
EXHIBIT
4
ASSIGNMENT
AND CONVEYANCE
On
this
_______ day of ________, 200_, HomeBanc Mortgage Corporation (“Seller”) as the
Seller under that certain Master Mortgage Loan Purchase and Servicing Agreement,
dated as of June 1, 2006 (the “Agreement”) does hereby sell, transfer, assign,
set over and convey to Citigroup Global Markets Realty Corp. as Purchaser under
the Agreement, without recourse, but subject to the terms of the Agreement,
all
rights, title and interest of the Seller in and to the Mortgage Loans listed
on
the Mortgage Loan Schedule attached hereto, the Mortgage Files and all rights
and obligations arising under the documents contained therein including the
right to any Prepayment Charges payable with respect thereto. Pursuant to
Subsection 6.03 of the Agreement, the Seller has delivered to the Purchaser
the documents for each Mortgage Loan to be purchased as set forth in the
Agreement. The contents of each related Servicing File required to be retained
by the Seller to service the Mortgage Loans pursuant to the Agreement and thus
not delivered to the Purchaser are and shall be held in trust by the Seller
for
the benefit of the Purchaser as the owner thereof. The Seller’s possession of
any portion of each such Servicing File is at the will of the Purchaser for
the
sole purpose of facilitating servicing of the related Mortgage Loan pursuant
to
the Agreement, and such retention and possession by the Seller shall be in
a
custodial capacity only. The ownership of each Mortgage Note, Mortgage, and
the
contents of the Mortgage File and Servicing File is vested in the Purchaser
and
the ownership of all records and documents with respect to the related Mortgage
Loan prepared by or which come into the possession of the Seller shall
immediately vest in the Purchaser and shall be retained and maintained, in
trust, by the Seller at the will of the Purchaser in such custodial capacity
only.
The
Seller confirms to the Purchaser that the representation and warranties set
forth in Subsections 7.01 and 7.02 of the Agreement and in the
Confirmation, dated _______________, 200__, are true and correct as of the
date
hereof, and that all statements made in the Seller’s Officer’s Certificate and
all Attachments thereto remain complete, true and correct in all respects as
of
the date hereof:
Capitalized
terms used herein and not otherwise defined shall have the meanings set forth
in
the Agreement.
HOMBANC
MORTGAGE CORPORATION
(Seller)
By:___________________________________
Name:_________________________________
Title:__________________________________
EXHIBIT
5
CONTENTS
OF EACH MORTGAGE FILE
With
respect to each Mortgage Loan, the Mortgage File shall include each of the
following items, which shall be available for inspection by the Purchaser and
which shall be retained by the Seller or delivered to the
Purchaser:
| 1. |
The
following documents (collectively, the “Mortgage Loan
Documents”)
|
| (a) |
the
original Mortgage Note bearing all intervening endorsements necessary
to
show a complete chain of endorsements from the original payee to the
applicable Seller, endorsed in blank, “Pay to the order of _____________,
without recourse”, and, if previously endorsed, signed in the name of the
last endorsee by a duly qualified officer of the last endorsee. If
the
Mortgage Loan was acquired by the last endorsee in a merger, the
endorsement must be by “[name of last endorsee], successor by merger to
[name of predecessor]”. If the Mortgage Loan was acquired or originated by
the last endorsee while doing business under another name, the endorsement
must be by “[name of last endorsee], formerly known as [previous
name]”;
|
| (b) |
the
original Assignment of Mortgage for each Mortgage Loan, in form and
substance acceptable for recording. The Mortgage shall be assigned,
with
assignee’s name left blank. If the Mortgage Loan was acquired by the last
assignee in a merger, the Assignment of Mortgage must be made by “[name of
last assignee], successor by merger to [name of predecessor]”. If the
Mortgage Loan was acquired or originated by the last assignee while
doing
business under another name, the Assignment of Mortgage must be by
“[name
of last assignee], formerly known as [previous
name];
|
| (c) |
the
original of each guarantee executed in connection with the Mortgage
Note,
if any;
|
| (d) |
the
original recorded Mortgage with evidence of recording thereon, If in
connection with any Mortgage Loan, the applicable Seller has not delivered
or caused to be delivered the original Mortgage with evidence of recording
thereon on or prior to the related Closing Date because of a delay
caused
by the public recording office where such Mortgage has been delivered
for
recordation or because such Mortgage has been lost or because such
public
recording office retains the original recorded Mortgage, the Seller
shall
deliver or cause to be delivered to the Purchaser, (i) in the case
of a
delay caused by the public recording office, a copy of such Mortgage
certified by the applicable Seller, escrow agent, title insurer or
closing
attorney to be a true and complete copy of the original recorded Mortgage
and (ii) in the case where a public recording office retains the original
recorded Mortgage or in the case where a Mortgage is lost after
recordation in a public recording office, a copy of such Mortgage
certified by such public recording office to be a true and complete
copy
of the original recorded Mortgage;
|
| (e) |
originals
of each assumption, modification, consolidation or extension agreement,
if
any;
|
| (f) |
the
originals of all intervening assignments of mortgage with evidence
of
recording thereon evidencing a complete chain of ownership from the
originator of the Mortgage Loan to the last assignee, or if any such
intervening assignment of mortgage has not been returned from the
applicable public recording office or has been lost or if such public
recording office retains the original recorded intervening assignments
of
mortgage, a photocopy of such intervening assignment of mortgage, together
with (i) in the case of a delay caused by the public recording office,
an
Officer’s Certificate of the applicable Seller, escrow agent, closing
attorney or the title insurer insuring the Mortgage stating that such
intervening assignment of mortgage has been delivered to the appropriate
public recording office for recordation and that such original recorded
intervening assignment of mortgage or a copy of such intervening
assignment of mortgage certified by the appropriate public recording
office to be a true and complete copy of the original recorded intervening
assignment of mortgage will be promptly delivered to the Purchaser
upon
receipt thereof by the party delivering the Officer’s Certificate or by
the applicable Seller; or (ii) in the case of an intervening assignment
of
mortgage where a public recording office retains the original recorded
intervening assignment of mortgage or in the case where an intervening
assignment of mortgage is lost after recordation in a public recording
office, a copy of such intervening assignment of mortgage with recording
information thereon certified by such public recording office to be
a true
and complete copy of the original recorded intervening assignment of
mortgage;
|
| (g) |
if
the Mortgage Note, the Mortgage, any Assignment of Mortgage or any
other
related document has been signed by a Person on behalf of the Mortgagor,
the original power of attorney or other instrument that authorized
and
empowered such Person to sign;
|
| (h) |
the
original lender’s title insurance policy (or a marked title insurance
commitment, in the event that an original lender’s title insurance policy
has not yet been issued) in the form of an ALTA mortgage title insurance
policy, containing each of the endorsements required by Xxxxxx Xxx
and
insuring the Purchaser and its successors and assigns as to the first
priority lien of the Mortgage in the original principal amount of the
Mortgage Loan;
|
| (i) |
original
of any security agreement, chattel mortgage or equivalent document
executed in connection with the Mortgage, if any;
and
|
| (j) |
the
original Primary Insurance Policy, if the Loan-to-Value Ratio is greater
than 80.00%.
|
| 2. |
Residential
loan application.
|
| 3. |
Mortgage
Loan closing statement.
|
| 4. |
Verification
of employment and income, if applicable.
|
| 5. |
Verification
of acceptable evidence of source and amount of downpayment, if
applicable.
|
| 6. |
Credit
report on Mortgagor.
|
| 7. |
Residential
appraisal report, if applicable.
|
| 8. |
Photograph
of the Mortgaged Property, if applicable.
|
| 9. |
Survey
of the Mortgaged Property, if applicable.
|
| 10. |
All
required disclosure statements and statement of Mortgagor confirming
receipt thereof.
|
| 11. |
If
applicable, termite report, structural engineer’s report, water potability
and septic certification.
|
| 12. |
Sales
Contract, if applicable.
|
| 13. |
Hazard
insurance policy.
|
| 14. |
Tax
receipts, insurance premium receipts, ledger sheets, payment history
from
date of origination, insurance claim files, correspondence, current
and
historical computerized data files, and all other processing, underwriting
and closing papers and records which are customarily contained in a
mortgage loan file and which are required to document the Mortgage
Loan or
to service the Mortgage Loan.
|
| 15. |
Amortization
schedule, if available.
|
| 16. |
Payment
history.
|
| 17. |
Flood
Insurance policy, if applicable.
|
| 18. |
Tax
Service Contract.
|
| 19. |
Flood
Service Contract.
|
EXHIBIT
6
CUSTODIAL
ACCOUNT LETTER AGREEMENT
____________
__, 200_
To: ______________________________
(the
“Depository”)
As
Seller
under the Master Mortgage Loan Purchase and Servicing Agreement, dated as of
June 1, 2006, we hereby authorize and request you to establish an account,
as a
Custodial Account, to be designated as “HomeBanc Mortgage Corporation in trust
for the Purchaser and various Mortgagors, Fixed and Adjustable Rate Mortgage
Loans.” All deposits in the account shall be subject to withdrawal therefrom by
order signed by the Seller. You may refuse any deposit which would result in
violation of the requirement that the account be fully insured as described
below. This letter is submitted to you in duplicate. Please execute and return
one original to us.
HOMBANC
MORTGAGE CORPORATION
(Seller)
By:_________________________________
Name:_______________________________
Title:________________________________
Date:________________________________
The
undersigned, as Depository, hereby certifies that the above-described account
has been established under Account Number ___________ at the office of the
Depository indicated above, and agrees to honor withdrawals on such account
as
provided above. The full amount deposited at any time in the account will be
insured by the Federal Deposit Insurance Corporation through the Bank Insurance
Fund (“BIF”) or the Savings Association Insurance Fund (“SAIF”).
______________________________________
Depository
By:_________________________________
Name:_______________________________
Title:________________________________
Date:________________________________
EXHIBIT
7
ESCROW
ACCOUNT LETTER AGREEMENT
____________
__, 200_
To:
_________________________________
(the
“Depository”)
As
Seller
under the Master Mortgage Loan Purchase and Servicing Agreement, dated as of
June 1, 2006, we hereby authorize and request you to establish an account,
as an
Escrow Account, to be designated as “HomBanc Mortgage Corporation in trust for
the Purchaser and various Mortgagors, Fixed and Adjustable Rate Mortgage Loans.”
All deposits in the account shall be subject to withdrawal therefrom by order
signed by the Seller. You may refuse any deposit which would result in violation
of the requirement that the account be fully insured as described below. This
letter is submitted to you in duplicate. Please execute and return one original
to us.
HOMEBANC
MORTGAGE CORPORATION
(Seller)
By:_________________________________
Name:_______________________________
Title:________________________________
Date:________________________________
The
undersigned, as Depository, hereby certifies that the above-described account
has been established under Account Number ___________ at the office of the
Depository indicated above, and agrees to honor withdrawals on such account
as
provided above. The full amount deposited at any time in the account will be
insured by the Federal Deposit Insurance Corporation through the Bank Insurance
Fund (“BIF”) or the Savings Association Insurance Fund (“SAIF”).
_____________________________________
Depository
By:_________________________________
Name:_______________________________
Title:________________________________
Date:________________________________
EXHIBIT
8
SERVICING
ADDENDUM
Subsection
11.01 Seller
to Act as Servicer.
The
Seller, as independent contract servicer, shall service and administer the
Mortgage Loans in accordance with this Agreement, all applicable laws, rules
and
regulations and the terms of the Mortgage Loan Documents, and shall have full
power and authority, acting alone, to do or cause to be done any and all things
in connection with such servicing and administration which the Seller may deem
necessary or desirable and consistent with the terms of this
Agreement.
Consistent
with the terms of this Agreement, the Seller may waive, modify or vary any
term
of any Mortgage Loan or consent to the postponement of strict compliance with
any such term or in any manner grant indulgence to any Mortgagor if in the
Seller’s reasonable and prudent determination such waiver, modification,
postponement or indulgence will cure a default by the mortgagor or prevent
a
reasonable foreseeable default, and is not materially adverse to the Purchaser;
provided, however, that the Seller shall not permit any waiver, modification,
postponement or indulgence with respect to any Mortgage Loan that would change
the Mortgage Interest Rate, defer or forgive the payment thereof or of any
principal or interest payments, reduce the outstanding principal amount (except
for actual payments of principal), make additional advances of additional
principal or extend the final maturity date on such Mortgage Loan. Without
limiting the generality of the foregoing, the Seller shall continue, and is
hereby authorized and empowered, to execute and deliver on behalf of itself,
and
the Purchaser, all instruments of satisfaction or cancellation, or of partial
or
full release, discharge and all other comparable instruments, with respect
to
the Mortgage Loans and with respect to the Mortgaged Property. If reasonably
required by the Seller, the Purchaser shall furnish the Seller with any powers
of attorney and other documents necessary or appropriate to enable the Seller
to
carry out its servicing and administrative duties under this
Agreement.
Notwithstanding
anything in this Agreement to the contrary, in the event of a Principal
Prepayment in full or in part of a Mortgage Loan, the Seller may not waive
any
Prepayment Charge or portion thereof required by the terms of the related
Mortgage Note unless (i) the Seller determines that such waiver would maximize
recovery of Liquidation Proceeds for such Mortgage Loan, taking into account
the
value of such Prepayment Charge and the Mortgage Loan, and the waiver of such
Prepayment Charge is standard and customary in servicing similar Mortgage Loans
(including the waiver of a Prepayment Charge in connection with a refinancing
of
the Mortgage Loan related to a default or a reasonably foreseeable default)
or
(ii) (A) the enforceability thereof is limited (1) by bankruptcy, insolvency,
moratorium, receivership, or other similar law relating to creditors’ rights or
(2) due to acceleration in connection with a foreclosure or other involuntary
payment, or (B) the enforceability is otherwise limited or prohibited by
subsequent changes in applicable law. In no event shall the Seller waive a
Prepayment Charge in connection with a refinancing of a Mortgage Loan that
is
not related to a default or a reasonably foreseeable default. If the Seller
waives or does not collect all or a portion of a Prepayment Charge relating
to a
Principal Prepayment in full or in part due to any action or omission of the
Seller, other than as provided above, the Seller shall deposit the amount of
such Prepayment Charge (or such portion thereof as had been waived for deposit)
into the Custodial Account at the time of such prepayment for distribution
in
accordance with the terms of this Agreement.
In
servicing and administering the Mortgage Loans, the Seller shall employ
procedures including collection procedures and exercise the same care that
it
customarily employs and exercises in servicing and administering mortgage loans
for its own account giving due consideration to accepted mortgage servicing
practices of prudent lending institutions and the Purchaser’s reliance on the
Seller.
The
Seller will furnish, with respect to each Mortgage Loan, in accordance with
the
Fair Credit Reporting Act and its implementing regulations, accurate and
complete information on its borrower credit files to Equifax, Experian, and
Trans Union Credit Information Company, on a monthly basis.
Subsection
11.02 Collection
of Mortgage Loan Payments.
Continuously
from the date hereof until the principal and interest on all Mortgage Loans
are
paid in full, the Seller shall proceed diligently to collect all payments due
under each Mortgage Loan when the same shall become due and payable and shall,
to the extent such procedures shall be consistent with this Agreement and the
terms and provisions of any related Primary Insurance Policy or LPMI Policy,
follow such collection procedures as it follows with respect to mortgage loans
comparable to the Mortgage Loans and held for its own account. Further, the
Seller shall take special care in ascertaining and estimating annual ground
rents, taxes, assessments, water rates, fire and hazard insurance premiums,
mortgage insurance premiums, and all other charges that, as provided in the
Mortgage, will become due and payable to the end that the installments payable
by the Mortgagors will be sufficient to pay such charges as and when they become
due and payable.
Subsection
11.03 Realization
Upon Defaulted Mortgage Loans.
(a) The
Seller shall use its best efforts, consistent with the procedures that the
Seller would use in servicing loans for its own account, to foreclose upon
or
otherwise comparably convert the ownership of such Mortgaged Properties as
come
into and continue in default and as to which no satisfactory arrangements can
be
made for collection of delinquent payments pursuant to Subsection 11.01.
The Seller shall use its best efforts to realize upon defaulted Mortgage Loans
in such a manner as will maximize the receipt of principal and interest by
the
Purchaser, taking into account, among other things, the timing of foreclosure
proceedings. The foregoing is subject to the provisions that, in any case in
which Mortgaged Property shall have suffered damage, the Seller shall not be
required to expend its own funds toward the restoration of such property in
excess of $2,000 unless it shall determine in its discretion (i) that such
restoration will increase the proceeds of liquidation of the related Mortgage
Loan to Purchaser after reimbursement to itself for such expenses, and (ii)
that
such expenses will be recoverable by the Seller through Insurance Proceeds
or
Liquidation Proceeds from the related Mortgaged Property, as contemplated in
Subsection 11.05. In the event that any payment due under any Mortgage Loan
is not paid when the same becomes due and payable, or in the event the Mortgagor
fails to perform any other covenant or obligation under the Mortgage Loan and
such failure continues beyond any applicable grace period, the Seller shall
take
such action as it shall deem to be in the best interest of the Purchaser. In
the
event that any payment due under any Mortgage Loan remains delinquent for a
period of 90 days or more, the Seller shall commence foreclosure proceedings,
provided that prior to commencing foreclosure proceedings, the Seller shall
notify the Purchaser in writing of the Seller’s intention to do so, and the
Seller shall not commence foreclosure proceedings if the Purchaser objects
to
such action within ten (10) Business Days of receiving such notice. The Seller
shall notify the Purchaser in writing of the commencement of foreclosure
proceedings and shall provide monthly reports to the Purchaser or its designee
regarding the status of such Mortgage Loans from the time such Mortgage Loan
becomes 90 days delinquent through the liquidation of such Mortgage Loan. The
Seller shall be responsible for all costs and expenses incurred by it in any
such foreclosure proceedings; provided, however, that it shall be entitled
to
reimbursement thereof from the related Mortgaged Property, as contemplated
in
Subsection 11.05.
(b) Notwithstanding
the foregoing provisions of this Subsection 11.03, with respect to any
Mortgage Loan as to which the Seller has received actual notice of, or has
actual knowledge of, the presence of any toxic or hazardous substance on the
related Mortgaged Property the Seller shall not either (i) obtain title to
such
Mortgaged Property as a result of or in lieu of foreclosure or otherwise, or
(ii) otherwise acquire possession of, or take any other action, with respect
to,
such Mortgaged Property if, as a result of any such action, the Purchaser would
be considered to hold title to, to be a mortgagee-in-possession of, or to be
an
owner or operator of such Mortgaged Property within the meaning of the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as
amended from time to time, or any comparable law, unless the Seller has also
previously determined, based on its reasonable judgment and a prudent report
prepared by a Person who regularly conducts environmental audits using customary
industry standards, that:
(1) such
Mortgaged Property is in compliance with applicable environmental laws or, if
not, that it would be in the best economic interest of the Purchaser to take
such actions as are necessary to bring the Mortgaged Property into compliance
therewith; and
(2) there
are
no circumstances present at such Mortgaged Property relating to the use,
management or disposal of any hazardous substances, hazardous materials,
hazardous wastes, or petroleum-based materials for which investigation, testing,
monitoring, containment, clean-up or remediation could be required under any
federal, state or local law or regulation, or that if any such materials are
present for which such action could be required, that it would be in the best
economic interest of the Purchaser to take such actions with respect to the
affected Mortgaged Property.
The
cost
of the environmental audit report contemplated by this Subsection 11.03
shall be advanced by the Seller, subject to the Seller’s right to be reimbursed
therefor from the Custodial Account as provided in
Subsection 11.05(vii).
If
the
Seller determines, as described above, that it is in the best economic interest
of the Purchaser to take such actions as are necessary to bring any such
Mortgaged Property into compliance with applicable environmental laws, or to
take such action with respect to the containment, clean-up or remediation of
hazardous substances, hazardous materials, hazardous wastes, or petroleum-based
materials affecting any such Mortgaged Property, then the Seller shall take
such
action as it deems to be in the best economic interest of the Purchaser. The
cost of any such compliance, containment, cleanup or remediation shall be
advanced by the Seller, subject to the Seller’s right to be reimbursed therefor
from the Custodial Account as provided in
Subsection 11.05(vii).
(c) Proceeds
received in connection with any Final Recovery Determination, as well as any
recovery resulting from a partial collection of Insurance Proceeds or
Liquidation Proceeds in respect of any Mortgage Loan, will be applied in the
following order of priority: first,
to
reimburse the Seller for any related unreimbursed Servicing Advances pursuant
to
Subsection 11.05(iii); second,
to
accrued and unpaid interest on the Mortgage Loan, to the date of the Final
Recovery Determination, or if not in connection with a Final Recovery
Determination, to the Due Date prior to the Distribution Date on which such
amounts are to be distributed; and third,
as a
recovery of principal of the Mortgage Loan. If the amount of the recovery so
allocated to interest is less than the full amount of accrued and unpaid
interest due on such Mortgage Loan, the amount of such recovery will be
allocated by the Seller as follows: first,
to
unpaid Servicing Fees; and second,
to the
balance of the interest then due and owing. The portion of the recovery so
allocated to unpaid Servicing Fees shall be reimbursed to the Seller pursuant
to
Subsection 11.05(iii).
Subsection
11.04 Establishment
of Custodial Accounts; Deposits in Custodial Accounts.
The
Seller shall segregate and hold all funds collected and received pursuant to
each Mortgage Loan separate and apart from any of its own funds and general
assets and shall establish and maintain one or more Custodial Accounts, in
the
form of time deposit or demand accounts. The creation of any Custodial Account
shall be evidenced by a Custodial Account Letter Agreement in the form of
Exhibit
6.
The
Seller shall deposit in the Custodial Account on a daily basis, and retain
therein the following payments and collections received by it subsequent to
the
Cut-off Date, or received by it prior to the Cut-off Date but allocable to
a
period subsequent thereto, other than in respect of principal and interest
on
the Mortgage Loans due on or before the Cut-off Date:
(i) all
payments on account of principal, including Principal Prepayments received
during the related Prepayment Period, on the Mortgage Loans;
(ii) all
payments on account of interest on the Mortgage Loans, including all Prepayment
Charges received during the related Prepayment Period;
(iii) all
Liquidation Proceeds;
(iv) all
Insurance Proceeds including amounts required to be deposited pursuant to
Subsections 11.10 and 11.11, other than proceeds to be held in the Escrow
Account and applied to the restoration or repair of the Mortgaged Property
or
released to the Mortgagor in accordance with the loan documents or applicable
law;
(v) all
Condemnation Proceeds affecting any Mortgaged Property which are not released
to
the Mortgagor in accordance with the Seller’s normal servicing procedures, the
loan documents or applicable law;
(vi) all
Monthly Advances;
(vii) all
proceeds of any Mortgage Loan repurchased in accordance with
Subsections 7.03, 7.04 or 7.05 and all amounts required to be deposited by
the Seller in connection with shortfalls in principal amount of Qualified
Substitute Mortgage Loans pursuant to Subsection 7.03;
(viii) any
amounts required to be deposited by the Seller pursuant to Subsection 11.11
in connection with the deductible clause in any blanket hazard insurance policy.
Such deposit shall be made from the Seller’s own funds, without reimbursement
therefor;
(ix) any
amounts required to be deposited by the Seller in connection with any REO
Property pursuant to Subsection 11.13;
(x) any
amounts required to be deposited in the Custodial Account pursuant to
Subsections 11.19 or 11.20;
(xi) with
respect to each Principal Prepayment in full or in part received during the
related Prepayment Period, an amount (to be paid by the Seller out of its own
funds without reimbursement therefor) which, when added to all amounts allocable
to interest received in connection with such Principal Prepayment, equals one
month’s interest on the amount of principal so prepaid at the Mortgage Interest
Rate; provided, however, that in no event shall the aggregate of deposits made
by the Seller pursuant to this clause (xi) exceed the aggregate amount of the
Seller’s servicing compensation received in the calendar month in which such
deposits are required; and
(iv) any
amounts required to be deposited pursuant to Subsection 11.33 in connection
with
any losses realized on Permitted Investments with respect to funds held in
the
Custodial Account;
The
foregoing requirements for deposit in the Custodial Account shall be exclusive,
it being understood and agreed that, without limiting the generality of the
foregoing, payments in the nature of late payment charges and assumption fees,
to the extent permitted by Subsection 11.01, need not be deposited by the
Seller in the Custodial Account. Such Custodial Account shall be an Eligible
Account. Any interest or earnings on funds deposited in the Custodial Account
by
the depository institution shall accrue to the benefit of the Seller and the
Seller shall be entitled to retain and withdraw such interest from the Custodial
Account pursuant to Subsection 11.05(iii). The Seller shall give notice to
the Purchaser of the location of the Custodial Account when established and
prior to any change thereof.
If
the
balance on deposit in the Custodial Account exceeds $75,000 as of the
commencement of business on any Business Day and the Custodial Account
constitutes an Eligible Account solely pursuant to clause (ii) of the definition
of Eligible Account, the Seller shall, on or before twelve o’clock noon Eastern
time on such Business Day, withdraw from the Custodial Account any and all
amounts payable to the Purchaser and remit such amounts to the Purchaser by
wire
transfer of immediately available funds.
Subsection
11.05 Permitted
Withdrawals From the Custodial Account.
The
Seller may, from time to time, withdraw from the Custodial Account for the
following purposes:
(i) to
make
distributions to the Purchaser in the amounts and in the manner provided for
in
Subsection 11.14;
(ii) to
reimburse itself for Monthly Advances, the Seller’s right to reimburse itself
pursuant to this subclause (ii) being limited to amounts received on the related
Mortgage Loan which represent late collections (net of the related Servicing
Fees) respecting which any such advance was made it being understood that,
in
the case of such reimbursement, the Seller’s right thereto shall be prior to the
rights of Purchaser, except that, where the Seller is required to repurchase
a
Mortgage Loan pursuant to Subsection 7.03, 7.04 or 7.05, the Seller’s right
to such reimbursement shall be subsequent to the payment to the Purchaser of
the
Repurchase Price pursuant to Subsection 7.03, 7.04 or 7.05, and all other
amounts required to be paid to the Purchaser with respect to such Mortgage
Loans;
(iii) to
reimburse itself for unreimbursed Servicing Advances, the Seller’s right to
reimburse itself pursuant to this subclause (iii) with respect to any Mortgage
Loan being limited to related Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds and such other amounts as may be collected by the Seller
from
the Mortgagor or otherwise relating to the Mortgage Loan, it being understood
that, in the case of such reimbursement, the Seller’s right thereto shall be
prior to the rights of the Purchaser, except that, where the Seller is required
to repurchase a Mortgage Loan pursuant to Subsection 7.03, 7.04 or 7.05,
the Seller’s right to such reimbursement shall be subsequent to the payment to
the Purchaser of the Repurchase Price pursuant to Subsection 7.03, 7.04 or
7.05 and all other amounts required to be paid to the Purchaser with respect
to
such Mortgage Loans;
(iv) to
pay to
itself pursuant to Subsection 11.22 as servicing compensation (a) any
interest earned on funds in the Custodial Account (all such interest to be
withdrawn monthly not later than each Distribution Date), and (b) the Servicing
Fee from that portion of any payment or recovery as to interest on a particular
Mortgage Loan;
(v) to
pay to
itself with respect to each Mortgage Loan that has been repurchased pursuant
to
Subsection 7.03, 7.04 or 7.05 all amounts received thereon and not
distributed as of the date on which the related Repurchase Price is
determined;
(vi) to
reimburse itself for any Monthly Advance previously made which the Seller has
determined to be a Nonrecoverable Monthly Advance;
(vii) to
pay,
or to reimburse itself for advances in respect of, expenses incurred in
connection with any Mortgage Loan pursuant to Subsection 11.03(b), but only
to the extent of amounts received in respect of the Mortgage Loans to which
such
expense is attributable; and
(viii) to
clear
and terminate the Custodial Account on the termination of this
Agreement.
The
Seller shall keep and maintain separate accounting, on a Mortgage Loan by
Mortgage Loan basis, for the purpose of justifying any withdrawal from the
Custodial Account pursuant to such subclauses (ii) - (vii) above. In
addition, any amounts deposited into the REO Account by the Seller in respect
of
REO Properties shall be accounted for on a REO Property by REO Property basis.
The
Seller shall provide written notification in the form of an Officers’
Certificate to the Purchaser, on or prior to the next succeeding Distribution
Date, upon making any withdrawals from the Custodial Account pursuant to
subclause (vi) above.
Subsection
11.06 Establishment
of Escrow Accounts; Deposits in Escrow Accounts.
The
Seller shall segregate and hold all funds collected and received pursuant to
each Mortgage Loan which constitute Escrow Payments separate and apart from
any
of its own funds and general assets and shall establish and maintain one or
more
Escrow Accounts, in the form of time deposit or demand accounts. The creation
of
any Escrow Account shall be evidenced by Escrow Account Letter Agreement in
the
form of Exhibit
7.
The
Seller shall deposit in the Escrow Account or Accounts on a daily basis, and
retain therein, (i) all Escrow Payments collected on account of the Mortgage
Loans, for the purpose of effecting timely payment of any such items as required
under the terms of this Agreement, and (ii) all Insurance Proceeds which are
to
be applied to the restoration or repair of any Mortgaged Property. The Seller
shall make withdrawals therefrom only to effect such payments as are required
under this Agreement, and for such other purposes as shall be as set forth
or in
accordance with Subsection 11.08. The Seller shall be entitled to retain
any interest paid on funds deposited in the Escrow Account by the depository
institution other than interest on escrowed funds required by law to be paid
to
the Mortgagor and, to the extent required by law, the Seller shall pay interest
on escrowed funds to the Mortgagor notwithstanding that the Escrow Account
is
non-interest bearing or that interest paid thereon is insufficient for such
purposes.
Subsection
11.07 Permitted
Withdrawals From Escrow Account.
Withdrawals
from the Escrow Account may be made by the Seller (i) to effect timely payments
of ground rents, taxes, assessments, water rates, hazard insurance premiums,
Primary Insurance Policy premiums, if applicable, and comparable items, (ii)
to
reimburse the Seller for any Servicing Advance made by the Seller with respect
to a related Mortgage Loan but only from amounts received on the related
Mortgage Loan which represent late payments or collections of Escrow Payments
thereunder, (iii) to refund to the Mortgagor any funds as may be determined
to
be overages, (iv) for transfer to the Custodial Account in accordance with
the
terms of this Agreement, (v) for application to restoration or repair of the
Mortgaged Property, (vi) to pay to the Seller, or to the Mortgagor to the extent
required by law, any interest paid on the funds deposited in the Escrow Account,
or (vii) to clear and terminate the Escrow Account on the termination of this
Agreement.
Subsection
11.08 Payment
of Taxes, Insurance and Other Charges; Maintenance of Primary Insurance Policies
and LPMI Policies; Collections Thereunder.
(a) With
respect to each Mortgage Loan, the Seller shall maintain accurate records
reflecting the status of ground rents, taxes, assessments, water rates and
other
charges which are or may become a lien upon the Mortgaged Property and the
status of Primary Insurance Policy and LPMI Policy premiums and fire and hazard
insurance coverage and shall obtain, from time to time, all bills for the
payment of such charges, including insurance renewal premiums and shall effect
payment thereof prior to the applicable penalty or termination date and at
a
time appropriate for securing maximum discounts allowable, employing for such
purpose deposits of the Mortgagor in the Escrow Account which shall have been
estimated and accumulated by the Seller in amounts sufficient for such purposes,
as allowed under the terms of the Mortgage and applicable law. To the extent
that the Mortgage does not provide for Escrow Payments, the Seller shall
determine that any such payments are made by the Mortgagor at the time they
first become due. The Seller assumes full responsibility for the timely payment
of all such bills and shall effect timely payments of all such bills
irrespective of the Mortgagor’s faithful performance in the payment of same or
the making of the Escrow Payments and shall make Servicing Advances to effect
such payments and such amounts shall not be added to the unpaid principal
balance of the related Mortgage Loan, notwithstanding that the terms of the
Mortgage Loan so permit. The obligation of the Seller to make such Servicing
Advances is mandatory, notwithstanding any other provision of this Agreement,
and, with respect to any Mortgage Loan or REO Property, shall continue until
a
Final Recovery Determination in connection therewith; provided that,
notwithstanding anything herein to the contrary, no Servicing Advance shall
be
required to be made hereunder by the Seller if such Servicing Advance would,
if
made, constitute a Nonrecoverable Servicing Advance. The determination by the
Seller that it has made a Nonrecoverable Servicing Advance or that any proposed
Servicing Advance, if made, would constitute a Nonrecoverable Servicing Advance,
shall be evidenced by an Officers’ Certificate delivered to the
Purchaser.
The
Seller shall maintain in full force and effect, a Primary Insurance Policy,
issued by a Qualified Insurer, with respect to each Mortgage Loan for which
such
coverage is required. Such coverage shall be maintained until the Loan-to-Value
Ratio of the related Mortgage Loan is reduced to that amount for which Xxxxxx
Xxx no longer requires such insurance to be maintained. The Seller will not
cancel or refuse to renew any Primary Insurance Policy in effect on the related
Closing Date that is required to be kept in force under this Agreement unless
a
replacement Primary Insurance Policy for such cancelled or non- renewed policy
is obtained from and maintained with a Qualified Insurer. The Seller shall
not
take any action which would result in non-coverage under any applicable Primary
Insurance Policy or LPMI Policy of any loss which, but for the actions of the
Seller, would have been covered thereunder. In connection with any assumption
or
substitution agreement entered into or to be entered into pursuant to
Subsection 11.19, the Seller shall promptly notify the insurer under the
related Primary Insurance Policy or LPMI Policy, if any, of such assumption
or
substitution of liability in accordance with the terms of such policy and shall
take all actions which may be required by such insurer as a condition to the
continuation of coverage under the Primary Insurance Policy or LPMI Policy.
If
such Primary Insurance Policy is terminated as a result of such assumption
or
substitution of liability, the Seller shall obtain a replacement Primary
Insurance Policy as provided above.
In
connection with its activities as servicer, the Seller agrees to prepare and
present, on behalf of itself, and the Purchaser, claims to the insurer under
any
Primary Insurance Policy or LPMI Policy in a timely fashion in accordance with
the terms of such policies and, in this regard, to take such action as shall
be
necessary to permit recovery under any Primary Insurance Policy or LPMI Policy
respecting a defaulted Mortgage Loan. Pursuant to Subsection 11.04, any
amounts collected by the Seller under any Primary Insurance Policy or LPMI
Policy shall be deposited in the Custodial Account, subject to withdrawal
pursuant to Subsection 11.05.
Subsection
11.09 Transfer
of Accounts.
The
Seller may transfer the Custodial Account or the Escrow Account to a different
depository institution from time to time. Such transfer shall be made only
upon
obtaining the consent of the Purchaser, which consent shall not be unreasonably
withheld. In any case, the Custodial Account and Escrow Account shall be
Eligible Accounts.
Subsection
11.10 Maintenance
of Hazard Insurance.
In
connection with its activities as servicer, the Seller agrees to prepare and
present, on behalf of itself and the Purchaser, claims to the insurer under
any
hazard insurance policy in a timely fashion in accordance with the terms of
such
policies and, in this regard, to take such action as shall be necessary to
permit recovery under any hazard insurance policy. The Seller shall cause to
be
maintained for each Mortgage Loan fire and hazard insurance with extended
coverage as is customary in the area where the Mortgaged Property is located
in
an amount which is at least equal to the lesser of (i) the amount necessary
to
fully compensate for any damage or loss to the improvements which are a part
of
such property on a replacement cost basis and (ii) the outstanding principal
balance of the Mortgage Loan plus, with respect to any Second Lien Mortgage
Loan, the outstanding principal balance of the First Lien Mortgage Loan, in
each
case in an amount not less than such amount as is necessary to prevent the
Mortgagor and/or the Mortgagee from becoming a co-insurer. If the Mortgaged
Property is in an area identified on a Flood Hazard Boundary Map or Flood
Insurance Rate Map issued by the Flood Emergency Management Agency as having
special flood hazards and such flood insurance has been made available, the
Seller will cause to be maintained a flood insurance policy meeting the
requirements of the current guidelines of the Federal Insurance Administration
with a generally acceptable insurance carrier, in an amount representing
coverage not less than the lesser of (i) the outstanding principal balance
of
the Mortgage Loan or (ii) the maximum amount of insurance which is available
under the National Flood Insurance Act of 1968 or the Flood Disaster Protection
Act of 1973, as amended. The Seller also shall maintain on any REO Property,
fire and hazard insurance with extended coverage in an amount which is at least
equal to the lesser of (i) the maximum insurable value of the improvements
which
are a part of such property and (ii) the outstanding principal balance of the
Mortgage Loan plus, with respect to any Second Lien Mortgage Loan, the
outstanding principal balance of the First Lien Mortgage Loan, at the time
it
became an REO Property plus accrued interest at the Mortgage Interest Rate
and
related Servicing Advances, liability insurance and, to the extent required
and
available under the National Flood Insurance Act of 1968 or the Flood Disaster
Protection Act of 1973, as amended, flood insurance in an amount as provided
above. Pursuant to Subsection 11.04, any amounts collected by the Seller
under any such policies other than amounts to be deposited in the Escrow Account
and applied to the restoration or repair of the Mortgaged Property or REO
Property, or released to the Mortgagor in accordance with the Seller’s normal
servicing procedures, shall be deposited in the Custodial Account, subject
to
withdrawal pursuant to Subsection 11.05. Any cost incurred by the Seller in
maintaining any such insurance shall not, for the purpose of calculating
distributions to the Purchaser, be added to the unpaid principal balance of
the
related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan
so
permit. It is understood and agreed that no earthquake or other additional
insurance need be required by the Seller or the Mortgagor or maintained on
property acquired in respect of the Mortgage Loan, other than pursuant to such
applicable laws and regulations as shall at any time be in force and as shall
require such additional insurance. All such policies shall be endorsed with
standard mortgagee clauses with loss payable to the Seller, or upon request
to
the Purchaser, and shall provide for at least thirty days prior written notice
of any cancellation, reduction in the amount of, or material change in, coverage
to the Seller. The Seller shall not interfere with the Mortgagor’s freedom of
choice in selecting either his insurance carrier or agent, provided, however,
that the Seller shall not accept any such insurance policies from insurance
companies unless such companies currently reflect a General Policy Rating of
A:VI or better in Best’s Key Rating Guide and are licensed to do business in the
state wherein the property subject to the policy is located.
Subsection
11.11 Maintenance
of Mortgage Impairment Insurance Policy.
In
the
event that the Seller shall obtain and maintain a mortgage impairment or blanket
policy issued by an issuer that has a Best rating of A:X insuring against hazard
losses on all Mortgaged Properties securing the Mortgage Loans, then, to the
extent such policy provides coverage in an amount equal to the amount required
pursuant to Subsection 11.10 and otherwise complies with all other
requirements of Subsection 11.10, the Seller shall conclusively be deemed
to have satisfied its obligations as set forth in Subsection 11.10, it
being understood and agreed that such policy may contain a deductible clause,
in
which case the Seller shall, in the event that there shall not have been
maintained on the related Mortgaged Property or REO Property a policy complying
with Subsection 11.10, and there shall have been one or more losses which
would have been covered by such policy, deposit in the Custodial Account the
amount not otherwise payable under the blanket policy because of such deductible
clause. In connection with its activities as servicer of the Mortgage Loans,
the
Seller agrees to prepare and present, on behalf of the Purchaser, claims under
any such blanket policy in a timely fashion in accordance with the terms of
such
policy. The Seller shall deliver to the Purchaser a certified true copy of
such
policy and a statement from the insurer thereunder that such policy shall in
no
event be terminated or materially modified without thirty days prior written
notice to the Purchaser.
Subsection
11.12 Fidelity
Bond, Errors and Omissions Insurance.
The
Seller shall maintain, at its own expense, a blanket fidelity bond and an errors
and omissions insurance policy, with broad coverage with responsible companies
that would meet the requirements of Xxxxxx Mae and Xxxxxxx Mac on all officers,
employees or other persons acting in any capacity with regard to the Mortgage
Loans to handle funds, money, documents and papers relating to the Mortgage
Loans. The fidelity bond and errors and omissions insurance shall be in the
form
of the Mortgage Banker’s Blanket Bond and shall protect and insure the Seller
against losses, including forgery, theft, embezzlement, fraud, errors and
omissions and negligent acts of such persons. Such fidelity bond shall also
protect and insure the Seller against losses in connection with the failure
to
maintain any insurance policies required pursuant to this Agreement and the
release or satisfaction of a Mortgage Loan without having obtained payment
in
full of the indebtedness secured thereby. No provision of this
Subsection 11.12 requiring the fidelity bond and errors and omissions
insurance shall diminish or relieve the Seller from its duties and obligations
as set forth in this Agreement. The minimum coverage under any such bond and
insurance policy shall be at least equal to the corresponding amounts required
by Xxxxxx Mae in the Xxxxxx Xxx Servicing Guide or by Xxxxxxx Mac in the Xxxxxxx
Xxx Xxxxxxx’ and Servicers’ Guide. Upon request of the Purchaser, the Seller
shall cause to be delivered to the Purchaser a certified true copy of the
fidelity bond and insurance policy and a statement from the surety and the
insurer that such fidelity bond or insurance policy shall in no event be
terminated or materially modified without thirty days’ prior written notice to
the Purchaser. The Seller shall provide copies of the fidelity bond and
insurance policy at each renewal of such policy.
Subsection
11.13 Title,
Management and Disposition of REO Property.
In
the
event that title to the Mortgaged Property is acquired in foreclosure or by
deed
in lieu of foreclosure, the deed or certificate of sale shall be taken in the
name of the person designated by the Purchaser, or in the event such person
is
not authorized or permitted to hold title to real property in the state where
the REO Property is located, or would be adversely affected under the “doing
business” or tax laws of such state by so holding title, the deed or certificate
of sale shall be taken in the name of such Person or Persons as shall be
consistent with an opinion of counsel obtained by the Seller from an attorney
duly licensed to practice law in the state where the REO Property is located.
Any Person or Persons holding such title other than the Purchaser shall
acknowledge in writing that such title is being held as nominee for the benefit
of the Purchaser.
The
Seller shall either itself or through an agent selected by the Seller, manage,
conserve, protect and operate each REO Property (and may temporarily rent the
same) in the same manner that it manages, conserves, protects and operates
other
foreclosed property for its own account, and in the same manner that similar
property in the same locality as the REO Property is managed. If a REMIC
election is or is to be made with respect to the arrangement under which the
Mortgage Loans and any REO Property are held, the Seller shall manage, conserve,
protect and operate each REO Property in a manner which does not cause such
REO
Property to fail to qualify as “foreclosure property” within the meaning of
Section 860G(a)(8) of the Code or result in the receipt by such REMIC of
any “income from non-permitted assets” within the meaning of
Section 860F(a)(2)(B) of the Code or any “net income from foreclosure
property” within the meaning of Section 860G(c)(2) of the Code. The Seller
shall cause each REO Property to be inspected promptly upon the acquisition
of
title thereto and shall cause each REO Property to be inspected at least monthly
thereafter. The Seller shall make or cause to be made a written report of each
such inspection. Such reports shall be retained in the Mortgage File and copies
thereof shall be forwarded by the Seller to the Purchaser. The Seller shall
use
its best efforts to dispose of the REO Property as soon as possible and shall
sell such REO Property in any event within one year after title has been taken
to such REO Property, unless the Seller determines, and gives appropriate notice
to the Purchaser, that a longer period is necessary for the orderly liquidation
of such REO Property. If a period longer than one year is necessary to sell
any
REO property, (i) the Seller shall report monthly to the Purchaser as to the
progress being made in selling such REO Property and (ii) if, with the written
consent of the Purchaser, a purchase money mortgage is taken in connection
with
such sale, such purchase money mortgage shall name the Seller as mortgagee,
and
a separate servicing agreement between the Seller and the Purchaser shall be
entered into with respect to such purchase money mortgage. Notwithstanding
the
foregoing, if a REMIC election is made with respect to the arrangement under
which the Mortgage Loans and the REO Property are held, such REO Property shall
be disposed of within three years or such other period as may be permitted
under
Section 860G(a)(8) of the Code.
With
respect to each REO Property, the Seller shall segregate and hold all funds
collected and received in connection with the operation of the REO Property
separate and apart from its own funds or general assets. Any REO Account shall
be established with the Seller as a sub-account of the Custodial Account or,
with the prior consent of the Purchaser, with a commercial bank, a mutual
savings bank or a savings association as a sub-account of the Custodial Account.
The
Seller shall deposit or cause to be deposited, on a daily basis in each REO
Account all revenues received with respect to the related REO Property and
shall
withdraw therefrom funds necessary for the proper operation, management and
maintenance of the REO Property, including the cost of maintaining any hazard
insurance pursuant to Subsection 11.10 hereof and the fees of any managing
agent acting on behalf of the Seller. The Seller shall not be entitled to retain
interest paid or other earnings, if any, on funds deposited in such REO Account.
On or before each Determination Date, the Seller shall withdraw from each REO
Account and deposit into the Custodial Account the net income from the REO
Property on deposit in the REO Account.
Any
amounts deposited into the REO Account by the Seller in respect of REO
Properties shall be accounted for on a REO Property by REO Property
basis.
The
Seller shall furnish to the Purchaser on each Distribution Date, an operating
statement for each REO Property covering the operation of each REO Property
for
the previous month. Such operating statement shall be accompanied by such other
information as the Purchaser shall reasonably request.
Each
REO
Disposition shall be carried out by the Seller at such price and upon such
terms
and conditions as the Seller deems to be in the best interest of the Purchaser
only with the prior written consent of the Purchaser. If as of the date title
to
any REO Property was acquired by the Seller there were outstanding unreimbursed
Servicing Advances with respect to the REO Property, the Seller, upon an REO
Disposition of such REO Property, shall be entitled to reimbursement for any
related unreimbursed Servicing Advances from proceeds received in connection
with such REO Disposition. The proceeds from the REO Disposition, net of any
payment to the Seller as provided above, shall be deposited in the REO Account
and shall be transferred to the Custodial Account on the Determination Date
in
the month following receipt thereof for distribution on the succeeding
Distribution Date in accordance with Subsection 5.01.
Subsection
11.14 Distributions.
On
each
Distribution Date, the Seller shall distribute to the Purchaser all amounts
credited to the Custodial Account as of the close of business on the preceding
Determination Date, net of charges against or withdrawals from the Custodial
Account pursuant to Subsection 11.05; plus (ii) all Monthly Advances, if
any, which the Seller is obligated to distribute pursuant to
Subsection 11.21, minus (iii) any amounts attributable to Principal
Prepayments received after the related Prepayment Period and (iv) any amounts
attributable to Monthly Payments collected but due on a Due Date or Dates
subsequent to the preceding Determination Date.
All
distributions made to the Purchaser on each Distribution Date will be made
to
the Purchaser of record on the preceding Record Date, and shall be based on
the
Mortgage Loans owned and held by the Purchaser, and shall be made by wire
transfer of immediately available funds to the account of the Purchaser at
a
bank or other entity having appropriate facilities therefor, if the Purchaser
shall have so notified the Seller or by check mailed to the address of the
Purchaser.
With
respect to any remittance received by the Purchaser after the Business Day
on
which such payment was due, the Seller shall pay to the Purchaser interest
on
any such late payment at an annual rate equal to the rate of interest as is
publicly announced from time to time at its principal office by JPMorgan Chase
Bank, New York, New York, as its prime lending rate, adjusted as of the date
of
each change, plus three percentage points, but in no event greater than the
maximum amount permitted by applicable law. Such interest shall be paid by
the
Seller to the Purchaser on the date such late payment is made and shall cover
the period commencing with the day following the day such payment was due and
ending with the Business Day on which such payment is made, both inclusive.
Such
interest shall be remitted along with such late payment. The payment by the
Seller of any such interest shall not be deemed an extension of time for payment
or a waiver of any Event of Default by the Seller.
Subsection
11.15 Remittance
Reports.
No
later
than the fifth Business Day of each month, the Seller shall furnish to the
Purchaser or its designee a computer tape containing, and a hard copy of,
monthly data in a form mutually acceptable to the Purchaser and the Seller.
On
the Business Day following each Determination Date, the Seller shall deliver
to
the Purchaser or its designee by telecopy (or by such other means as the Seller
and the Purchaser may agree from time to time) a computer tape containing,
and a
hard copy of, the determination data with respect to the related Distribution
Date, together with such other information with respect to the Mortgage Loans
as
the Purchaser may reasonably require to allocate distributions made pursuant
to
this Agreement and provide appropriate statements with respect to such
distributions. On the same date, the Seller shall forward to the Purchaser
by
overnight mail a computer readable magnetic tape containing the information
set
forth in the Remittance Report with respect to the related Distribution
Date.
Subsection
11.16 Statements
to the Purchaser.
Not
later
than fifteen days after each Distribution Date, the Seller shall forward to
the
Purchaser or its designee a statement prepared by the Seller, in the form of
Xxxxxx Mae’s Guaranteed Mortgage Pass-Through Program, setting forth the status
of the Custodial Account as of the close of business on such Distribution Date
and showing, for the period covered by such statement, the aggregate amount
of
deposits into and withdrawals from the Custodial Account of each category of
deposit specified in Subsection 11.04 and each category of withdrawal
specified in Subsection 11.05.
In
addition, not more than sixty days after the end of each calendar year, the
Seller shall furnish to each Person who was the Purchaser at any time during
such calendar year, (i) as to the aggregate of remittances for the applicable
portion of such year, an annual statement in accordance with the requirements
of
applicable federal income tax law, and (ii) a listing of the principal balances
of the Mortgage Loans outstanding at the end of such calendar year.
The
Seller shall prepare and file any and all tax returns, information statements
or
other filings required to be delivered to any governmental taxing authority
or
to any Purchaser pursuant to any applicable law with respect to the Mortgage
Loans and the transactions contemplated hereby. In addition, the Seller shall
provide the Purchaser with such information concerning the Mortgage Loans as
is
necessary for the Purchaser to prepare its federal income tax return as any
Purchaser may reasonably request from time to time.
Subsection
11.17 Real
Estate Owned Reports.
Together
with the statement furnished pursuant to Subsection 11.13, with respect to
any REO Property, the Seller shall furnish to the Purchaser or its designee
a
statement (in a form mutually agreeable to the Purchaser and the Seller)
covering the Seller’s efforts in connection with the sale of such REO Property
and any rental of such REO Property incidental to the sale thereof for the
previous month, together with the operating statement. Such statement shall
be
accompanied by such other information as the Purchaser or its designee shall
reasonably request.
Subsection
11.18 Liquidation
Reports.
Upon
the
foreclosure sale of any Mortgaged Property or the acquisition thereof by the
Purchaser pursuant to a deed-in-lieu of foreclosure, the Seller shall submit
to
the Purchaser or its designee a liquidation report with respect to such
Mortgaged Property in support of any action taken by the Seller in regard to
such liquidation.
Subsection
11.19 Assumption
Agreements.
The
Seller shall, to the extent it has knowledge of any conveyance or prospective
conveyance by any Mortgagor of the Mortgaged Property (whether by absolute
conveyance or by contract of sale, and whether or not the Mortgagor remains
or
is to remain liable under the Mortgage Note and/or the Mortgage), exercise
its
rights to accelerate the maturity of such Mortgage Loan under any “due-on-sale”
clause applicable thereto; provided, however, that the Seller shall not exercise
any such rights if prohibited by law from doing so or if the exercise of such
rights would impair or threaten to impair any recovery under the related Primary
Insurance Policy or LPMI Policy, if any. If the Seller reasonably believes
it is
unable under applicable law to enforce such “due-on-sale” clause, the Seller
shall enter into an assumption agreement with the person to whom the Mortgaged
Property has been conveyed or is proposed to be conveyed, pursuant to which
such
person becomes liable under the Mortgage Note and, to the extent permitted
by
applicable state law, the Mortgagor remains liable thereon. Where an assumption
is not allowed pursuant to this Subsection 11.19, the Seller, with the
prior written consent of the insurer under the Primary Insurance Policy or
LPMI
Policy, if any, is authorized to enter into a substitution of liability
agreement with the person to whom the Mortgaged Property has been conveyed
or is
proposed to be conveyed pursuant to which the original Mortgagor is released
from liability and such Person is substituted as Mortgagor and becomes liable
under the related Mortgage Note. Any such substitution of liability agreement
shall be in lieu of an assumption agreement.
In
connection with any such assumption or substitution of liability, the Seller
shall follow the underwriting practices and procedures of prudent mortgage
lenders in the state in which the related Mortgaged Property is located. With
respect to an assumption or substitution of liability, Mortgage Interest Rate,
the amount of the Monthly Payment, and the final maturity date of such Mortgage
Note may not be changed. The Seller shall notify the Purchaser that any such
substitution of liability or assumption agreement has been completed by
forwarding to the Purchaser the original of any such substitution of liability
or assumption agreement, which document shall be added to the related Mortgage
File and shall, for all purposes, be considered a part of such Mortgage File
to
the same extent as all other documents and instruments constituting a part
thereof.
Notwithstanding
the foregoing paragraphs of this subsection or any other provision of this
Agreement, the Seller shall not be deemed to be in default, breach or any other
violation of its obligations hereunder by reason of any assumption of a Mortgage
Loan by operation of law or any assumption which the Seller may be restricted
by
law from preventing, for any reason whatsoever. For purposes of this
Subsection 11.19, the term “assumption” is deemed to also include a sale of
the Mortgaged Property subject to the Mortgage that is not accompanied by an
assumption or substitution of liability agreement.
Subsection
11.20 Satisfaction
of Mortgages and Release of Mortgage Files.
Upon
the
payment in full of any Mortgage Loan, or the receipt by the Seller of a
notification that payment in full will be escrowed in a manner customary for
such purposes, the Seller will immediately notify the Purchaser by a
certification of a servicing officer of the Seller (a “Servicing Officer”),
which certification shall include a statement to the effect that all amounts
received or to be received in connection with such payment which are required
to
be deposited in the Custodial Account pursuant to Subsection 11.04 have
been or will be so deposited, and shall request execution of any document
necessary to satisfy the Mortgage Loan and delivery to it of the portion of
the
Mortgage File held by the Purchaser or the Purchaser’s designee. Upon receipt of
such certification and request, the Purchaser, shall promptly release the
related mortgage documents to the Seller and the Seller shall prepare and
process any satisfaction or release. No expense incurred in connection with
any
instrument of satisfaction or deed of reconveyance shall be chargeable to the
Custodial Account or the Purchaser.
In
the
event the Seller satisfies or releases a Mortgage without having obtained
payment in full of the indebtedness secured by the Mortgage or should it
otherwise prejudice any right the Purchaser may have under the mortgage
instruments, the Seller, upon written demand, shall remit to the Purchaser
the
then outstanding principal balance of the related Mortgage Loan by deposit
thereof in the Custodial Account. The Seller shall maintain the fidelity bond
insuring the Seller against any loss it may sustain with respect to any Mortgage
Loan not satisfied in accordance with the procedures set forth
herein.
From
time
to time and as appropriate for the servicing or foreclosure of the Mortgage
Loan, including for this purpose collection under any Primary Insurance Policy
or LPMI Policy, the Purchaser shall, upon request of the Seller and delivery
to
the Purchaser of a servicing receipt signed by a Servicing Officer, release
the
requested portion of the Mortgage File held by the Purchaser to the Seller.
Such
servicing receipt shall obligate the Seller to return the related Mortgage
documents to the Purchaser when the need therefor by the Seller no longer
exists, unless the Mortgage Loan has been liquidated and the Liquidation
Proceeds relating to the Mortgage Loan have been deposited in the Custodial
Account or the Mortgage File or such document has been delivered to an attorney,
or to a public trustee or other public official as required by law, for purposes
of initiating or pursuing legal action or other proceedings for the foreclosure
of the Mortgaged Property either judicially or non-judicially, and the Seller
has delivered to the Purchaser a certificate of a Servicing Officer certifying
as to the name and address of the Person to which such Mortgage File or such
document was delivered and the purpose or purposes of such delivery. Upon
receipt of a certificate of a Servicing Officer stating that such Mortgage
Loan
was liquidated, the servicing receipt shall be released by the Purchaser to
the
Seller.
Subsection
11.21 Monthly
Advances by the Seller.
(a) Not
later
than the close of business on the Business Day preceding each Distribution
Date,
the Seller shall deposit in the Custodial Account an amount equal to all
payments not previously advanced by the Seller, whether or not deferred pursuant
to Subsection 11.01, of principal (due after the Cut-off Date) and interest
not allocable to the period prior to the Cut-off Date, at the Mortgage Interest
Rate net of the Servicing Fee, which were due on a Mortgage Loan and delinquent
at the close of business on the related Determination Date.
(b) The
obligation of the Seller to make such Monthly Advances is mandatory,
notwithstanding any other provision of this Agreement, and, with respect to
any
Mortgage Loan or REO Property, shall continue until a Final Recovery
Determination in connection therewith; provided that, notwithstanding anything
herein to the contrary, no Monthly Advance shall be required to be made
hereunder by the Seller if such Monthly Advance would, if made, constitute
a
Nonrecoverable Monthly Advance. The determination by the Seller that it has
made
a Nonrecoverable Monthly Advance or that any proposed Monthly Advance, if made,
would constitute a Nonrecoverable Monthly Advance, shall be evidenced by an
Officers’ Certificate delivered to the Purchaser.
Subsection
11.22 Servicing
Compensation.
As
compensation for its services hereunder, the Seller shall, subject to
Subsection 11.04(xi), be entitled to withdraw from the Custodial Account or
to retain from interest payments on the Mortgage Loans the amounts provided
for
as the Seller’s Servicing Fee. Additional servicing compensation in the form of
assumption fees, as provided in Subsection 11.19, and late payment charges
or otherwise shall be retained by the Seller to the extent not required to
be
deposited in the Custodial Account. The Seller shall not be permitted to retain
any portion of the Prepayment Charges collected on the Mortgage Loans, which
Prepayment Charges shall be remitted to the Purchaser. The Seller shall be
required to pay all expenses incurred by it in connection with its servicing
activities hereunder and shall not be entitled to reimbursement therefor except
as specifically provided for.
Subsection
11.23 Special
Remittance Provisions for Principal Prepayments.
The
Purchaser shall have the right to direct the Servicer to modify the remittance
cycle applicable to Principal Payments received on any Mortgage Loan by
remitting to the Purchaser on any Distribution Date all Principal Prepayments
in
full received by the Servicer prior to the related Determination Date, plus
any
interest collected on such Principal Prepayments, to the extent not previously
remitted to the Purchaser. In connection with the foregoing, the Servicer shall
have thirty (30) days to comply with such request and shall not be required
to
pay the amount set forth in Subsection 11.04 (xi) with respect to the
related Mortgage Loans. In addition, the report by the Servicer shall reflect
such revised remittance cycle.
Subsection
11.24 Statement
as to Compliance.
(a) The
Seller will deliver to the Purchaser not later than March 1st
of each
year, an Officers’ Certificate (each, an “Annual Statement of Compliance”)
stating, as to each signatory thereof, that (i) a review of the activities
of
the Seller during the preceding year and of performance under this Agreement
has
been made under such officers’ supervision and (ii) to the best of such
officers’ knowledge, based on such review, the Seller has fulfilled all of its
obligations under this Agreement throughout such year, or, if there has been
a
default in the fulfillment of any such obligation, specifying each such default
known to such officer and the nature and status thereof. Copies of such
statement shall be provided by the Purchaser to any Person identified as a
prospective purchaser of the Mortgage Loans.
(b) The
Seller shall indemnify and hold harmless the Master Servicer and its officers,
directors, agents and affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments and other costs and expenses arising out of or based upon a breach
by
the Seller or any of its officers, directors, agents or affiliates of its
obligations under this Subsection 11.24 and Subsection 11.25 or the
negligence, bad faith or willful misconduct of the Seller in connection
therewith. If the indemnification provided for herein is unavailable or
insufficient to hold harmless the Master Servicer, then the Seller agrees that
it shall contribute to the amount paid or payable by the Master Servicer as
a
result of the losses, claims, damages or liabilities of the Master Servicer
in
such proportion as is appropriate to reflect the relative fault of the Master
Servicer on the one hand and the Seller on the other in connection with a breach
of the Seller’s obligations under this Subsection 11.24 or Subsection 11.25
or the Seller’s negligence, bad faith or willful misconduct in connection
therewith.
Subsection
11.25 Reserved.
Subsection
11.26 Notification
of Adjustments.
On
each
Adjustment Date, the Seller shall make interest rate adjustments for each
Adjustable Rate Mortgage Loan in compliance with the requirements of the related
Mortgage and Mortgage Note. The Seller shall execute and deliver the notices
required by each Mortgage and Mortgage Note regarding interest rate adjustments.
The Seller also shall provide timely notification to the Purchaser of all
applicable data and information regarding such interest rate adjustments and
the
Seller’s methods of implementing such interest rate adjustments. Upon the
discovery by the Seller or the Purchaser that the Seller has failed to adjust
a
Mortgage Interest Rate or a Monthly Payment pursuant to the terms of the related
Mortgage Note and Mortgage, the Seller shall immediately deposit in the
Custodial Account from its own funds the amount of any interest loss caused
thereby without reimbursement therefor.
Subsection
11.27 Access
to Certain Documentation.
The
Seller shall provide to the Office of Thrift Supervision, the FDIC and any
other
federal or state banking or insurance regulatory authority that may exercise
authority over the Purchaser access to the documentation regarding the Mortgage
Loans serviced by the Seller required by applicable laws and regulations. Such
access shall be afforded without charge, but only upon reasonable request and
during normal business hours at the offices of the Seller. In addition, access
to the documentation will be provided to the Purchaser and any Person identified
to the Seller by the Purchaser without charge, upon reasonable request during
normal business hours at the offices of the Seller.
Subsection
11.28 Reports
and Returns to be Filed by the Seller.
The
Seller shall file information reports with respect to the receipt of mortgage
interest received in a trade or business, reports of foreclosures and
abandonments of any Mortgaged Property and information returns relating to
cancellation of indebtedness income with respect to any Mortgaged Property
as
required by Sections 6050H, 6050J and 6050P of the Code. Such reports shall
be in form and substance sufficient to meet the reporting requirements imposed
by such Sections 6050H, 6050J and 6050P of the Code.
Subsection
11.29 Compliance
with REMIC Provisions.
If
a
REMIC election has been made with respect to the arrangement under which the
Mortgage Loans and REO Property are held, the Seller shall not take any action,
cause the REMIC to take any action or fail to take (or fail to cause to be
taken) any action that, under the REMIC Provisions, if taken or not taken,
as
the case may be, could (i) endanger the status of the REMIC as a REMIC or (ii)
result in the imposition of a tax upon the REMIC (including but not limited
to
the tax on “prohibited transactions” as defined in Section 860F(a)(2) of
the Code and the tax on “contributions” to a REMIC set forth in
Section 860G(d) of the Code) unless the Seller has received an Opinion of
Counsel (at the expense of the party seeking to take such action) to the effect
that the contemplated action will not endanger such REMIC status or result
in
the imposition of any such tax.
Subsection
11.30 Application
of Buydown Funds.
With
respect to each Buydown Mortgage Loan, the Seller shall segregate and hold
all
Buydown Funds in the Custodial Account separate and apart from the Seller’s
funds and general assets.
With
respect to each Buydown Mortgage Loan, the Seller shall have deposited into
the
Custodial Account, no later than the Closing Date, 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 Seller will
distribute to the Purchaser on each Distribution 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 Seller or the insurer under
any
related Primary Insurance Policy) the Seller shall, on the Distribution 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 Custodial 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 its entirety during the related Buydown Period, the Seller
shall be required to withdraw from the Custodial Account any Buydown Funds
remaining in the Custodial 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 Custodial Account related to such
Buydown Mortgage Loan, would result in a Principal Prepayment in full, the
Seller shall distribute to the Purchaser on the Distribution 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
Custodial Account.
Subsection
11.31 Superior
Liens.
With
respect to each Second Lien Mortgage Loan, the Seller shall, for the protection
of the Purchaser’s interest, file (or cause to be filed) of record a request for
notice of any action by a superior lienholder where permitted by local law
and
whenever applicable state law does not require that a junior lienholder be
named
as a party defendant in foreclosure proceedings in order to foreclose such
junior lienholder’s equity of redemption. The Seller shall also notify any
superior lienholder in writing of the existence of the Mortgage Loan and request
notification of any action (as described below) to be taken against the
Mortgagor or the Mortgaged Property by the superior lienholder.
If
the
Seller is notified that any superior lienholder has accelerated or intends
to
accelerate the obligations secured by the superior lien, or has declared or
intends to declare a default under the superior mortgage or the promissory
note
secured thereby, or has filed or intends to file an election to have the
Mortgaged Property sold or foreclosed, the Seller shall take whatever actions
are necessary to protect the interests of the Purchaser, and/or to preserve
the
security of the related Mortgage Loan, subject to any requirements applicable
to
real estate mortgage investment conduits pursuant to the Code. The Seller shall
make a Servicing Advance of the funds necessary to cure the default or reinstate
the superior lien if the Seller determines that such Servicing Advance is in
the
best interests of the Purchaser. The Seller shall not make such a Servicing
Advance except to the extent that it determines in its reasonable good faith
judgment that such advance will be recoverable from Liquidation Proceeds on
the
related Mortgage Loan. The Seller shall thereafter take such action as is
necessary to recover the amount so advanced.
Subsection
11.32 Officer’s
Certificates.
Not
later
than the end of each calendar year, the Seller shall deliver to the Purchaser
or
its designee an Officer’s Certificate stating that the Seller is an approved
seller/servicer for Xxxxxx Mae and Xxxxxxx Mac in good standing and is a HUD
approved mortgagee pursuant to Section 203 of the National Housing Act, and
that no event has occurred, including but not limited to a change in insurance
coverage, which would make the Seller unable to comply with Xxxxxx Mae, Xxxxxxx
Mac or HUD eligibility requirements or which would require notification to
Xxxxxx Mae, Xxxxxxx Mac or HUD. In addition, the Seller shall deliver to the
Purchaser or its designee a notice in the event that the Seller fails to meet
such eligibility requirements.
Subsection
11.33 Investment
of Funds in the Collection Account.
The
Seller may direct any depository institution maintaining the Custodial Account
to invest the funds on deposit in such account, (each such account, for the
purposes of this Subsection 11.33, an “Investment Account”). All investments
pursuant to this Subsection 11.33 shall be in one or more Permitted Investments
bearing interest or sold at a discount, and maturing, unless payable on demand
no later than the Business Day immediately preceding the date on which such
funds are required to be withdrawn from such account pursuant to this Agreement.
All such Permitted Investments shall be held to maturity, unless payable on
demand. All income and gain realized from the investment of funds deposited
in
the Custodial Account shall be for the benefit of the Servicer and shall be
subject to its withdrawal in accordance with Subsection 11.04. The Servicer
shall deposit in the Custodial Account the amount of any loss incurred in
respect of any such Permitted Investment immediately upon realization of such
loss.
Subsection
11.34 Subservicing
Agreements Between the Seller and Subservicers.
The
Seller, as servicer, may arrange for the subservicing of any Mortgage Loan
by a
Subservicer pursuant to a Subservicing Agreement; provided that such
subservicing arrangement and the terms of the related Subservicing Agreement
must provide for the servicing of such Mortgage Loans in a manner consistent
with the servicing arrangements contemplated hereunder. Each Subservicer shall
be (i) authorized to transact business in the state or states where the related
Mortgaged Properties it is to service are situated, if and to the extent
required by applicable law to enable the Subservicer to perform its obligations
hereunder and under the Subservicing Agreement and (ii) a Xxxxxxx Mac or Xxxxxx
Xxx approved mortgage servicer. Notwithstanding the provisions of any
Subservicing Agreement, any of the provisions of this Agreement relating to
agreements or arrangements between the Seller or a Subservicer or reference
to
actions taken through the Seller or otherwise, the Seller shall remain obligated
and liable to the Purchaser and its successors and assigns for the servicing
and
administration of the Mortgage Loans in accordance with the provisions of this
Agreement without diminution of such obligation or liability by virtue of such
Subservicing Agreements or arrangements or by virtue of indemnification from
the
Subservicer and to the same extent and under the same terms and conditions
as if
the Seller alone were servicing and administering the Mortgage Loans. Every
Subservicing Agreement entered into by the Seller shall contain a provision
giving the successor servicer the option to terminate such agreement in the
event a successor servicer is appointed. All actions of each Subservicer
performed pursuant to the related Subservicing Agreement shall be performed
as
an agent of the Seller with the same force and effect as if performed directly
by the Seller.
For
purposes of this Agreement, the Seller shall be deemed to have received any
collections, recoveries or payments with respect to the Mortgage Loans that
are
received by a Subservicer regardless of whether such payments are remitted
by
the Subservicer to the Seller.
Subsection
11.35 Successor
Subservicers.
Any
Subservicing Agreement shall provide that the Seller shall be entitled to
terminate any Subservicing Agreement and to either itself directly service
the
related Mortgage Loans or enter into a Subservicing Agreement with a successor
Subservicer which qualifies under Subsection 11.34. Any Subservicing Agreement
shall include the provision that such agreement may be immediately terminated
by
any successor to the Seller without fee, in accordance with the terms of this
Agreement, in the event that the Seller (or any successor to the Seller) shall,
for any reason, no longer be the servicer of the related Mortgage Loans
(including termination due to an Event of Default).
Subsection
11.36 No
Contractual Relationship Between Subservicer and Purchaser.
Any
Subservicing Agreement and any other transactions or services relating to the
Mortgage Loans involving a Subservicer shall be deemed to be between the
Subservicer and the Seller alone and the Purchaser shall not be deemed a party
thereto and shall have no claims, rights, obligations, duties or liabilities
with respect to any Subservicer except as set forth in Subsection
11.34.
Subsection
11.37 Assumption
or Termination of Subservicing Agreement by Successor Servicer.
In
connection with the assumption of the responsibilities, duties and liabilities
and of the authority, power and rights of the Seller hereunder by a successor
servicer pursuant to Section 16 of this Agreement, it is understood and agreed
that the Seller’s rights and obligations under any Subservicing Agreement then
in force between the Seller and a Subservicer shall be assumed simultaneously
by
such successor servicer without act or deed on the part of such successor
servicer; provided, however, that any successor servicer may terminate the
Subservicer.
The
Seller shall, upon the reasonable request of the Purchaser, but at its own
expense, deliver to the assuming party documents and records relating to each
Subservicing Agreement and an accounting of amounts collected and held by it
and
otherwise use its best efforts to effect the orderly and efficient transfer
of
the Subservicing Agreements to the assuming party.
EXHIBIT
9
FORM
OF
ASSIGNMENT AND RECOGNITION AGREEMENT
THIS
ASSIGNMENT AND RECOGNITION AGREEMENT, dated ____________, 200__, (“Agreement”)
among
Citigroup Global Markets Realty Corp. (“Assignor”),
________________________ (“Assignee”)
and
HomeBanc Mortgage Corporation (the “Company”):
For
and
in consideration of the sum of TEN DOLLARS ($10.00) and other valuable
consideration the receipt and sufficiency of which hereby are acknowledged,
and
of the mutual covenants herein contained, the parties hereto hereby agree as
follows:
Assignment
and Conveyance
1. The
Assignor hereby conveys, sells, grants, transfers and assigns to the Assignee
(x) all of the right, title and interest of the Assignor, as purchaser, in,
to
and under (a) those certain Mortgage Loans listed as being originated by the
Company on the schedule (the “Mortgage
Loan Schedule”)
attached hereto as Exhibit A (the “Mortgage
Loans”)
and
(b) except as described below, that certain Master Mortgage Loan Purchase and
Servicing Agreement dated as of June 1, 2006, as amended (the “Purchase
Agreement”),
between the Assignor, as purchaser (the “Purchaser”),
and
the Company, as seller, solely insofar as the Purchase Agreement relates to
the
Mortgage Loans and (y) other than as provided below with respect to the
enforcement of representations and warranties, none of the obligations of the
Assignor under the Purchase Agreement.
The
Assignor specifically reserves and does not assign to the Assignee hereunder
any
and all right, title and interest in, to and under and any obligations of the
Assignor with respect to the servicing rights or any mortgage loans subject
to
the Purchase Agreement which are not the Mortgage Loans set forth on the
Mortgage Loan Schedule and are not the subject of this Agreement.
The
Assignor and the Assignee each hereby retain the right to enforce the
representations and warranties set forth in Subsection 7.01 and Subsection
7.02
with respect to the Company and the Mortgage Loans against the Company;
provided, however, that in no event shall the Company be required to pay the
Repurchase Price with respect to any Mortgage Loan more than once in connection
with the repurchase of a Mortgage Loan pursuant to Subsection 7.03, 7.04 or
7.05
of the Purchase Agreement. In addition, the right to require the Company to
repurchase a Mortgage Loan shall be exercised solely the Assignee, its
successors and assigns.
Recognition
of the Company
2. [For
Securitization Transactions include this sentence: From and after the date
hereof, the Company shall and does hereby recognize that the Assignee will
transfer the Mortgage Loans and assign its rights under the Purchase Agreement
(solely to the extent set forth herein) and this Agreement to
______________________________ (the “Trust”)
created pursuant to a Pooling and Servicing Agreement, dated as of
_______________, 200__ (the “Pooling
Agreement”),
among
the Assignee, the Assignor, ____________________, as trustee (including its
successors in interest and any successor trustees under the Pooling Agreement,
the “Trustee”), _________________________, as servicer (including its successors
in interest and any successor servicer under the Pooling Agreement, the
“Servicer”).]
The
Company hereby acknowledges and agrees that from and after the date hereof
(i)
the [Trust][Assignee] will be the owner of the Mortgage Loans, (ii) the Company
shall look solely to the [Trust][Assignee] for performance of any obligations
of
the Assignor insofar as they relate to the enforcement of the representations,
warranties and covenants with respect to the Mortgage Loans, (iii) the
[Assignee][Trust (including the Trustee and the Servicer acting on the Trust’s
behalf)] shall have all the rights and remedies available to the Assignor,
insofar as they relate to the Mortgage Loans, under the Purchase Agreement,
including, without limitation, the enforcement of the document delivery
requirements and remedies with respect to breaches of representations and
warranties set forth in the Purchase Agreement, and shall be entitled to enforce
all of the obligations of the Company thereunder insofar as they relate to
the
Mortgage Loans, and (iv) all references to the Purchaser (insofar as they relate
to the rights, title and interest and, with respect to obligations of the
Purchaser, only insofar as they relate to the enforcement of the
representations, warranties and covenants of the Company under the Purchase
Agreement insofar as they relate to the Mortgage Loans, shall be deemed to
refer
to the [Assignee] [Trust (including the Trustee and the Servicer acting on
the
Trust’s behalf)]. Neither the Company nor the Assignor shall amend or agree to
amend, modify, waiver, or otherwise alter any of the terms or provisions of
the
Purchase Agreement which amendment, modification, waiver or other alteration
would in any way affect the Mortgage Loans or the Company’s performance under
the Purchase Agreement with respect to the Mortgage Loans without the prior
written consent of the [Assignee][Trustee.]
Representations
and Warranties of the Company
3. The
Company warrants and represents to the Assignor, the Assignee [and the Trust]
as
of the date hereof that:
(a) The
Company is duly organized, validly existing and in good standing under the
laws
of the jurisdiction of its incorporation;
(b) The
Company has full power and authority to execute, deliver and perform its
obligations under this Agreement and has full power and authority to perform
its
obligations under the Purchase Agreement. The execution by the Company of this
Agreement is in the ordinary course of the Company’s business and will not
conflict with, or result in a breach of, any of the terms, conditions or
provisions of the Company’s charter or bylaws or any legal restriction, or any
material agreement or instrument to which the Company is now a party or by
which
it is bound, or result in the violation of any law, rule, regulation, order,
judgment or decree to which the Company or its property is subject. The
execution, delivery and performance by the Company of this Agreement have been
duly authorized by all necessary corporate action on part of the Company. This
Agreement has been duly executed and delivered by the Company, and, upon the
due
authorization, execution and delivery by the Assignor and the Assignee, will
constitute the valid and legally binding obligation of the Company, enforceable
against the Company in accordance with its terms except as enforceability may
be
limited by bankruptcy, reorganization, insolvency, moratorium or other similar
laws now or hereafter in effect relating to creditors’ rights generally, and by
general principles of equity regardless of whether enforceability is considered
in a proceeding in equity or at law;
(c) No
consent, approval, order or authorization of, or declaration, filing or
registration with, any governmental entity is required to be obtained or made
by
the Company in connection with the execution, delivery or performance by the
Company of this Agreement; and
(d) There
is
no action, suit, proceeding or investigation pending or threatened against
the
Company, before any court, administrative agency or other tribunal, which would
draw into question the validity of this Agreement or the Purchase Agreement,
or
which, either in any one instance or in the aggregate, would result in any
material adverse change in the ability of the Company to perform its obligations
under this Agreement or the Purchase Agreement, and the Company is
solvent.
4. Pursuant
to Section 12 of the Purchase Agreement, the Company hereby represents and
warrants, for the benefit of the Assignor, the Assignee [and the Trust,] that
the representations and warranties set forth in Subsections 7.01 and 7.02 of
the
Purchase Agreement, are true and correct as of the date hereof as if such
representations and warranties were made on the date hereof except that the
representation and warranty set forth in Subsection 7.02(i) shall, for purposes
of this Agreement, relate to the Mortgage Loan Schedule attached
hereto.
[Additional
Representations and Warranties Necessary for Securitization]
Remedies
for Breach of Representations and Warranties
5. The
Company hereby acknowledges and agrees that the remedies available to the
Assignor, the Assignee [and the Trust (including the Trustee and the Servicer
acting on the Trust’s behalf)] in connection with any breach of the
representations and warranties made by the Company set forth in Sections 3
and 4
hereof shall be as set forth in Subsection 7.03 of the Purchase Agreement as
if
they were set forth herein (including without limitation the repurchase and
indemnity obligations set forth therein).
Miscellaneous
6. This
Agreement shall be construed in accordance with the laws of the State of New
York, without regard to conflicts of law principles, and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
7. No
term
or provision of this Agreement may be waived or modified unless such waiver
or
modification is in writing and signed by the party against whom such waiver
or
modification is sought to be enforced[, with the prior written consent of the
Trustee].
8. This
Agreement shall inure to the benefit of [(i)] the successors and assigns of
the
parties hereto [and (ii) the Trust (including the Trustee and the Servicer
acting on the Trust’s behalf)]. Any entity into which Assignor, Assignee or
Company may be merged or consolidated shall, without the requirement for any
further writing, be deemed Assignor, Assignee or Company, respectively,
hereunder.
9. Each
of
this Agreement and the Purchase Agreement shall survive the conveyance of the
Mortgage Loans and the assignment of the Purchase Agreement (to the extent
assigned hereunder) by Assignor to Assignee [and by Assignee to the Trust]
and
nothing contained herein shall supersede or amend the terms of the Purchase
Agreement.
10. This
Agreement may be executed simultaneously in any number of counterparts. Each
counterpart shall be deemed to be an original and all such counterparts shall
constitute one and the same instrument.
11. In
the
event that any provision of this Agreement conflicts with any provision of
the
Purchase Agreement with respect to the Mortgage Loans, the terms of this
Agreement shall control.
12. Capitalized
terms used in this Agreement (including the exhibits hereto) but not defined
in
this Agreement shall have the meanings given to such terms in the Purchase
Agreement.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed by their
duly authorized officers as of the date first above written.
CITIGROUP
GLOBAL MARKETS REALTY CORP.
By:
/s/
[Authorized
Agent]
Name:_______________________________
Its:_________________________________
HOMEBANC
MORTGAGE CORPORATION
By:
/s/
[Authorized
Agent]
Name:_______________________________
Its:_________________________________
EXHIBIT
10
FORM
OF
INDEMNIFICATION AGREEMENT
Indemnification
Agreement dated as of _________ __, 200__ (the “Agreement”) between
_____________ (the “Company”) and _____________________ (the
“Depositor”).
Reference
is made to the issuance of ____________________, Series ________, Asset-Backed
Certificates (the “Certificates”), pursuant to a Pooling and Servicing
Agreement, dated as of _______________ (the “Pooling and Servicing Agreement”),
among the Depositor as depositor, _________________ as master servicer and
_____________________ as trustee (the “Trustee”). The Depositor will sell
certain of the Certificates to _______________ (the “Underwriter”) for offer and
sale pursuant to the terms of an Underwriting Agreement, dated ______________,
____ (the “Underwriting Agreement”), between the Depositor and the Underwriter.
Further reference is made to the Master Mortgage Loan Purchase and Servicing
Agreement, (the “Purchase Agreement”) dated as of ____________, 20__ between the
Company and Citigroup Global Markets Realty Corp. (“CGMRC”) which agreement was
assigned to the Depositor pursuant to the terms of the Assignment as Recognition
Agreement dated as of ______ among the Company, ___________ and CGMRC.
Capitalized terms not otherwise defined herein shall have the meanings set
forth
in the Pooling and Servicing Agreement.
Reference
is also made to the information provided by ____________ contained in the
Prospectus Supplement, including any supplement or amendment thereto, under
the
caption, “The Originators—______________” and “__________” (the “Company
Information”).
1. Pursuant
to Section 12 of the Purchase Agreement:
(a) Company
(also referred to herein as the “Indemnifying Party”) agrees to indemnify and
hold harmless the Underwriter, the Depositor and each of their directors and
officers and affiliates and each person, if any, who controls the Underwriter
or
the Depositor within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act (the “Indemnified Party”), against any and all actual
losses, claims, expenses, damages or liabilities to which the Depositor or
any
such director, officer or controlling person may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
(x)
any untrue statement of any material fact or alleged untrue statement of
material fact contained in the Company Information or omission or alleged
omission to state therein, a material fact required to be stated therein or
necessary to make the statements made therein, in light of the circumstances
under which such statements were made, not misleading (in each case, regardless
of whether a final judgment has been entered by a finder of fact) or (y) any
material misstatement or omission or alleged material misstatement or omission
contained in the Prospectus Supplement regarding information or statistics
therein regarding the Mortgage Loans based on information correctly derived
by
the Depositor or its affiliates and included in the Prospectus Supplement from
information actually provided to the Depositor or its affiliates by Company;
and
will reimburse any such reasonable legal or other expenses reasonably incurred
by the Depositor or any such director, officer or controlling person in
connection with investigating or defending any such loss, claim, damage,
liability or action. This indemnity agreement will be in addition to any
liability which Company may otherwise have.
(b) Promptly
after receipt by the Indemnified Party under this Section 1 of notice of the
commencement of any action described therein, the Indemnified Party will, if
a
claim in respect thereof is to be made against the Indemnifying Party under
this
Section 1, notify the Indemnifying Party of the commencement thereof, but the
omission so to notify the Indemnifying Party will not relieve the Indemnifying
Party from any liability that it may have to the Indemnified Party (a) under
this Agreement except to the extent that the omission to notify the Indemnifying
Party with respect to this Agreement materially adversely affects the
Indemnifying Party’s ability to perform under this Agreement or (b) otherwise
than under this Agreement. In case any such action is brought against the
Indemnified Party, and it notifies the Indemnifying Party of the commencement
thereof, the Indemnifying Party will be entitled to participate therein, and,
to
the extent that it may wish to do so, jointly with any other Indemnifying Party
similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to the Indemnified Party (who shall not, except with the consent
of
the Indemnified Party, be counsel to the Indemnifying Party), and, after notice
from the Indemnifying Party to the Indemnified Party under this Section 1,
the
Indemnifying Party shall not be liable for any legal or other expenses
subsequently incurred by the Indemnified Party in connection with the defense
thereof other than reasonable costs of investigation.
The
Indemnified Party shall have the right to employ separate counsel in any such
action and to participate in the defense thereof, but the fees and expenses
of
such counsel shall be at the expense of the Indemnified Party unless: (i) the
employment thereof has been specifically authorized by the Indemnifying Party
in
writing; (ii) the Indemnified Party shall have been advised by such counsel
that
there may be one or more legal defenses available to it which are different
from
or additional to those available to the Indemnifying Party and in the reasonable
judgment of such counsel it is advisable for the Indemnified Party to employ
separate counsel; (iii) a conflict or potential conflict exists (based on advice
of counsel to the Indemnified Party) between the Indemnified Party and the
Indemnifying Party (in which case the Indemnifying Party will not have the
right
to direct the defense of such action on behalf of the Indemnified Party) or
(iv)
the Indemnifying Party has failed to assume the defense of such action and
employ counsel reasonably satisfactory to the Indemnified Party, in which case,
if the Indemnified Party notifies the Indemnifying Party in writing that it
elects to employ separate counsel at the expense of the Indemnifying Party,
the
Indemnifying Party shall not have the right to assume the defense of such action
on behalf of the Indemnified Party, it being understood, however, the
Indemnifying Party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to local counsel) at any time for the Indemnified Party, which firm
shall be designated in writing by the Depositor or any of the Depositor’s
directors, officers or controlling persons.
The
Indemnified Party, as a condition of the indemnity agreements contained in
Section 1(a) and Section 1(b), shall use its best efforts to cooperate with
the
Indemnifying Party in the defense of any such action or claim. The Indemnifying
Party shall not be liable for any settlement of any such action effected without
its written consent (which consent shall not be unreasonably withheld), but
if
settled with its written consent or if there be a final judgment for the
plaintiff in any such action, the Indemnifying Party agrees to indemnify and
hold harmless the Indemnified Party from and against any loss or liability
(to
the extent set forth in Section 1(a) or Section 1(b) as applicable) by reason
of
such settlement or judgment.
2. All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if personally delivered to or mailed by
registered mail, postage prepaid, or transmitted by facsimile and confirmed
by
similar mailed writing as follows: (i) if to Company: ________________, [__],
Attention: [__], and (ii) if to the Depositor:
____________________________________, Facsimile (___) ___-____, Attention:
Legal. Any party hereto may alter the address to which communications or copies
are to be sent by giving notice of such change of address in conformity with
the
provisions of this Section for the giving of notice.
3. This
Agreement may be executed in any number of counterparts, each of which when
so
executed shall be deemed to be an original, but all of such counterparts shall
together constitute one instrument.
4. This
Agreement shall be construed in accordance with the laws of the State of New
York.
IN
WITNESS WHEREOF, the Depositor and Company have caused their names to be signed
by their respective officers thereunto duly authorized as of the date first
above written.
_______________________________
By:____________________________
Name:
Title:
_______________________________
By:______________________________
Name:
Title
EXHIBIT
11
FORM
OF
ANNUAL CERTIFICATION
Re: The
[ ]
agreement dated as of [ ,
200[ ]
(the “Agreement”), among [IDENTIFY PARTIES]
I,
_____________________________________, the _______________________ of [NAME
OF
SELLER] (the “Company”) and, in such capacity, the officer in charge of the
Company’s responsibility on Exhibit 12 to the Agreement. I hereby certify to
[the Purchaser], [the Depositor], and the [Master Servicer] [Securities
Administrator] [Trustee], and their officers, with the knowledge and intent
that
they will rely upon this certification, that:
1. I
have
reviewed the servicer compliance statement of the Company provided in accordance
with Item 1123 of Regulation AB (the “Compliance Statement”), the report on
assessment of the Company’s compliance with the servicing criteria set forth in
Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided in accordance
with Rules 13a-18 and 15d-18 under Securities Exchange Act of 1934, as amended
(the “Exchange Act”) and Item 1122 of Regulation AB (the “Servicing
Assessment”), the registered public accounting firm’s attestation report
provided in accordance with Rules 13a-18 and 15d-18 under the Exchange Act
and
Section 1122(b) of Regulation AB (the “Attestation Report”), and all other data,
servicing reports, officer’s certificates and information relating to the
performance of the Company under the terms of the Agreement and the servicing
of
the Mortgage Loans by the Company during 200[ ] that were delivered to the
[Depositor] [Master Servicer] [Securities Administrator] [Trustee] pursuant
to
the Agreement (collectively, the “Company Servicing Information”);
2. Based
on
my knowledge, the reports and information comprising the Company Servicing
Information, taken as a whole, does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
made, in the light of the circumstances under which such statements were made,
not misleading as of the period covered by, or the date of such reports or
information or the date of this certification;
3. Based
on
my knowledge, all of the Company Servicing Information required to be provided
by the Company under the Agreement has been provided to the [Depositor] [Master
Servicer] [Securities Administrator] [Trustee];
4. I
am
responsible for reviewing the activities performed by the Company as servicer
under the Agreement, and based on my knowledge and the compliance review
conducted in preparing the Compliance Statement and except as disclosed in
the
Compliance Statement, the Servicing Assessment or the Attestation Report, the
Company has fulfilled its obligations under the Agreement in all material
respects; and
5. The
Compliance Statement required to be delivered by the Company pursuant to the
Agreement, and the Servicing Assessment and Attestation Report required to
be
provided by the Company and by any Subservicer or Subcontractor pursuant to
the
Agreement, have been provided to the [Depositor] [Master Servicer]. The
Servicing Assessment and the Attestation Report cover all items of the servicing
criteria identified on Exhibit 12 to the Agreement as applicable to the Company.
Any material instances of noncompliance described in such reports have been
disclosed to the [Depositor] [Master Servicer]. Any material instance of
noncompliance with the Servicing Criteria has been disclosed in such
reports.
The
following material instances of noncompliance identified in the Servicing
Assessment and the Attestation Report relate to the performance or obligations
of the Company under the Agreement: ____________ (if none, state
“None.”)
|
Date:
_________________________
|
|
|
By: _______________________________
|
|
|
Name:
|
|
|
Title:
|
|
EXHIBIT
12
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by [the Company] [Name of Subservicer]
shall address, at a minimum, the criteria identified as below as “Applicable
Servicing Criteria”:
|
SERVICING
CRITERIA
|
APPLICABLE
SERVICING
CRITERIA
|
|
|
Reference
|
Criteria
|
|
|
General
Servicing Considerations
|
||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
X
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
X
|
|
Cash
Collection and Administration
|
||
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
X
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
X
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
X
|
|
Investor
Remittances and Reporting
|
||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
X
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
X
|
|
Pool
Asset Administration
|
||
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the transaction
agreements or related mortgage loan documents. [For those documents
maintained by the Seller/Servicer, not for those maintained by the
Custodian.]
|
X
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements. [For those documents maintained by the Seller/Servicer,
not
for those maintained by the Custodian.]
|
X
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
X
|
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow) in
accordance with the related mortgage loan documents.
|
X
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
X
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor’s mortgage loans (e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
X
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
X
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
|
X
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period specified
in
the transaction agreements; (B) interest on such funds is paid, or
credited, to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
X
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
X
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
X
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
X
|
