Exhibit 10.2
EXECUTION COPY
DLJ MORTGAGE CAPITAL, INC.
Purchaser,
COUNTRYWIDE HOME LOANS, INC.,
Seller
and
COUNTRYWIDE HOME LOANS SERVICING LP
Servicer
Dated as of March 1, 2004
Conventional Residential Fixed and Adjustable Rate
Mortgage Loans
TABLE OF CONTENTS
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SECTION 1. Definitions |
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1 |
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SECTION 2. Agreement to Purchase; Servicing of the Mortgage Loans |
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14 |
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SECTION 3. Mortgage Schedules |
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15 |
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SECTION 4. Purchase Price |
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15 |
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SECTION 5. Examination of Mortgage Files |
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16 |
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SECTION 6. Conveyance from Seller to Purchaser |
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16 |
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Subsection 6.01 |
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Conveyance of Mortgage Loans; Possession of Servicing Files |
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16 |
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Subsection 6.02 |
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Books and Records |
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17 |
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Subsection 6.03 |
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Delivery of Mortgage Loan Documents |
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18 |
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Subsection 6.04 |
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Quality Control Procedures |
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20 |
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SECTION 7. Representations, Warranties and Covenants of the Seller; Remedies for Breach |
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20 |
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Subsection 7.01 |
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Representations and Warranties Respecting the Seller |
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20 |
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Subsection 7.02 |
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Representations and Warranties Regarding Individual Mortgage Loans |
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23 |
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Subsection 7.03 |
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Representations and Warranties Respecting the Servicer |
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32 |
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Subsection 7.04 |
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Remedies for Breach of Representations and Warranties |
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34 |
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Subsection 7.05 |
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Repurchase of Converted Mortgage Loans |
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36 |
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Subsection 7.06 |
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Covenant of the Seller |
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36 |
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SECTION 8. Closing |
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36 |
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SECTION 9. Closing Documents |
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37 |
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SECTION 10. Costs |
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38 |
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SECTION 11. Servicer’s Servicing Obligations |
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38 |
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SECTION 12. Removal of Mortgage Loans from Inclusion Under this Agreement Upon a Whole Loan
Transfer or a Pass-Through Transfer on One or More Reconstitution Dates |
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39 |
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SECTION 13. |
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The Seller and the Servicer |
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41 |
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Subsection 13.01 |
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Additional Indemnification by the Seller and the Servicer; Third Party Claims |
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41 |
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Subsection 13.02 |
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Merger or Consolidation of the Servicer |
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42 |
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Subsection 13.03 |
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Limitation on Liability of the Seller, the Servicer and Others |
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43 |
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Subsection 13.04 |
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Seller Not to Resign |
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43 |
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Subsection 13.05 |
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No Transfer of Servicing |
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43 |
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SECTION 14. |
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Default |
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44 |
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Subsection 14.01 |
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Events of Default |
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44 |
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Subsection 14.02 |
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Waiver of Defaults |
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46 |
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SECTION 15. |
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Termination |
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46 |
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Subsection 15.01 |
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Termination |
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46 |
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Subsection 15.02 |
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Termination Without Cause |
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46 |
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SECTION 16. |
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Successor to the Servicer |
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46 |
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SECTION 17. |
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Financial Statements |
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47 |
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SECTION 18. |
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Reserved |
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48 |
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SECTION 19. |
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Notices |
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48 |
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SECTION 20. |
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Severability Clause |
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49 |
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SECTION 21. |
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Counterparts |
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49 |
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SECTION 22. |
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Governing Law |
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49 |
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SECTION 23. |
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Intention of the Parties |
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49 |
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SECTION 24. |
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Successors and Assigns; Assignment of Purchase Agreement |
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50 |
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SECTION 25. |
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Waivers |
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50 |
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SECTION 26. |
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Exhibits |
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50 |
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SECTION 27. |
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General Interpretive Principles |
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50 |
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SECTION 28. |
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Reproduction of Documents |
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51 |
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SECTION 29. |
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Further Agreements |
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51 |
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SECTION 30. |
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Confidentiality |
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51 |
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SECTION 31. |
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Recordation of Assignments of Mortgage |
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52 |
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SECTION 32. |
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Recordation of Agreement |
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52 |
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SECTION 33. |
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Conflict with Purchase Price and Terms Letter |
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52 |
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SECTION 34. |
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No Solicitation |
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53 |
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-ii-
EXHIBITS
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EXHIBIT 1
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SELLER’S OFFICER CERTIFICATE |
EXHIBIT 2
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FORM OF OPINION OF COUNSEL TO THE SELLER |
EXHIBIT 3
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SECURITY RELEASE CERTIFICATION |
EXHIBIT 4
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ASSIGNMENT AND CONVEYANCE |
EXHIBIT 5
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CONTENTS OF EACH MORTGAGE FILE |
EXHIBIT 6
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CONTENTS OF EACH SERVICING FILE |
EXHIBIT 7
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FORM OF CUSTODIAL ACCOUNT LETTER AGREEMENT |
EXHIBIT 8
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FORM OF ESCROW ACCOUNT LETTER AGREEMENT |
EXHIBIT 9
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SERVICING ADDENDUM |
EXHIBIT 10
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SELLER’S UNDERWRITING GUIDELINES |
EXHIBIT 11
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FORM OF ANNUAL CERTIFICATION |
EXHIBIT 12
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FORM OF ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT |
EXHIBIT 13-1
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FORM OF MONTHLY REMITTANCE ADVICE (XXXXX FORM 300) |
EXHIBIT 13-2
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FORM OF MONTHLY REMITTANCE ADVICE (XXXXX FORM 301) |
EXHIBIT 14
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FORM OF LIQUIDATION REPORT |
-iii-
This is a
MORTGAGE LOAN PURCHASE AND SERVICING AGREEMENT (the “
Agreement”), dated as
of March 1, 2004, by and among DLJ Mortgage Capital, Inc., having an office at 00 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (the “
Purchaser”), Countrywide Home Loans, Inc., having an office
at 0000 Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000 (the “
Seller”), and Countrywide Home
Loans Servicing LP, having an office at 000 Xxxxxxxxxxx Xxx, Xxxx Xxxxxx, Xxxxxxxxxx 00000 (the
“
Servicer”).
W I T N E S S E T H:
WHEREAS, the Seller desires to sell on a servicing retained basis, 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 mortgage loans (the “Mortgage
Loans”) as described herein, and which shall be delivered in pools of whole loans (each a
“Mortgage Loan Package”) on various dates as provided herein (each a “Closing
Date”);
WHEREAS, each Mortgage Loan is secured by a mortgage, deed of trust or other security
instrument creating a first lien on a residential dwelling located in the jurisdiction indicated on
the Mortgage Loan Schedule for the related Mortgage Loan Package;
WHEREAS, the Purchaser, the Seller and the Servicer 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 or a
public or private pass through 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, the Seller and the Servicer agree as follows:
SECTION 1. Definitions.
For purposes of this Agreement the following capitalized terms shall have the respective
meanings set forth below.
Accepted Servicing Practices: With respect to any Mortgage Loan, those mortgage
servicing practices (including collection procedures) of prudent mortgage banking institutions
which service mortgage loans of the same type as such Mortgage Loan in the jurisdiction where the
related Mortgaged Property is located, and which are in accordance with FNMA servicing practices
and procedures, for MBS pool mortgages, as defined in the FNMA Guidelines including future updates.
Adjustable Rate Mortgage Loan: Any Mortgage Loan purchased pursuant to this Agreement
as to which the related Mortgage Note contains a provision whereby the Mortgage Interest Rate is
adjusted from time to time in accordance with the terms of such Mortgage Note.
ALTA: The American Land Title Association, its successors and assigns.
Appraised Value: With respect to any Mortgage Loan, the value of the related
Mortgaged Property based upon the lesser of (i) the appraisal made for the originator at the time
of origination of the Mortgage Loan and (ii) the purchase price of the Mortgaged Property at the
time of origination of the Mortgage Loan, provided, however, that in the case of a Refinanced
Mortgage Loan, such value is based solely upon the appraisal made at the time of origination of
such Refinanced Mortgage Loan and further provided, however, in the case of a Mortgage Loan
originated under the Seller’s streamlined documentation program, such value may be based upon a
prior appraisal that satisfies the requirements of the Seller’s streamlined documentation program.
Assignment of Mortgage: An assignment of the Mortgage, notice of transfer or
equivalent instrument in recordable form, sufficient under the laws of the jurisdiction wherein the
related Mortgaged Property is located to reflect the sale of the Mortgage to the Purchaser.
Balloon Mortgage Loan: Any individual Mortgage Loan purchased pursuant to this
Agreement wherein the Mortgage Note matures after seven years requiring a final and accelerated
payment of the outstanding principal prior to full amortization.
Balloon Payment: A payment of the unamortized principal balance of a Balloon Mortgage
Loan in a single payment at the maturity of such Mortgage Loan that is substantially greater than
the preceding Monthly Payment.
BIF: The Bank Insurance Fund, or any successor thereto.
Business Day: Any day other than (i) a Saturday or Sunday, or (ii) a day on which
banking and savings and loan institutions, in the States of California, Texas or
New York or the
state in which the Servicer’s servicing operations are located, are authorized or obligated by law
or executive order to be closed.
Cash Liquidation: Recovery of all cash proceeds by the Servicer with respect to the
termination of any defaulted Mortgage Loan other than a Mortgage Loan which became an REO Property,
including all Primary Mortgage Insurance Proceeds, Other Insurance Proceeds, Liquidation Proceeds,
Condemnation Proceeds and other payments or recoveries whether made at one time or over a period of
time which the Servicer deems to be finally recoverable, in connection with the sale or assignment
of such Mortgage Loan, trustee’s sale, foreclosure sale or otherwise.
-2-
CD Mortgage Loan: Any individual Mortgage Loan purchased pursuant to this Agreement
which contains a provision whereby the interest rate on such Mortgage Loan is adjusted
semi-annually based upon the weekly average yield on certificates of deposit.
Closing Date: The date this Agreement is executed and delivered and the date or dates
on which the Purchaser from time to time shall purchase, and the Seller from time to time shall
sell, the Mortgage Loans listed on the related Mortgage Loan Schedule with respect to the related
Mortgage Loan Package.
Condemnation Proceeds: All awards or settlements in respect of a taking of an entire
Mortgaged Property by exercise of the power of eminent domain or condemnation.
Consumer Personal Information: Any information, including, but not limited to, all
personal information about a Mortgagor that is disclosed to any of the Seller, the Servicer or the
Purchaser by or on behalf of a Mortgagor.
Convertible Mortgage Loan: Any individual Adjustable Rate Mortgage Loan purchased
pursuant to this Agreement which contains a provision whereby the Mortgagor is permitted to convert
the Mortgage Loan to a Fixed Rate Mortgage Loan in accordance with the terms of the related
Mortgage Note.
Custodial Account: The separate account or accounts created and maintained pursuant
to this Agreement, which shall be entitled “Countrywide Home Loans Servicing LP, in trust for the
Purchaser and various Mortgagors, Conventional Mortgage Loans.”
Custodial Agreement: The agreement between the Purchaser and the Custodian governing
the retention of the Mortgage Files.
Custodian: The custodian under the Custodial Agreement, or its successor in interest
or assigns, or any successor to the Custodian under the Custodial Agreement, as therein provided.
Cut-off Date: The first day of the month in which the related Closing Date occurs.
Deleted Mortgage Loan: A Mortgage Loan repurchased or replaced or to be replaced with
a Qualified Substitute Mortgage Loan.
Determination Date: The 15th day of the month of the related Remittance Date or if
such 15th day is not a Business Day, the Business Day immediately following such 15th day.
Due Date: The day of the month on which the Monthly Payment is due on a Mortgage
Loan, exclusive of any days of grace.
Due Period: With respect to each Remittance Date, the period commencing on the second
day of the month preceding the month of the Remittance Date and ending on the first day of the
month of the Remittance Date.
-3-
Eligible Account: An account or accounts (i) maintained with a depository institution
the short term debt obligations of which are rated by Standard & Poor’s at least A-1+, by Fitch at
least F-1, and by Moody’s at least P-1 at the time of any deposit therein, (ii) the deposits of
which are fully insured by the FDIC, (iii) maintained in a parent, affiliate or subsidiary of the
Seller provided that such account satisfies the requirements of (i) or (ii) above or (iv)
maintained with a trust account or accounts maintained with a federal or state chartered depository
institution or trust company acting in its fiduciary capacity.
Equity Take-Out Refinanced Mortgage Loan: A Mortgage Loan used to refinance an
existing mortgage loan, the proceeds of which were in excess of the sum of (i) the unpaid principal
balance of the existing mortgage loan; and (ii) the lesser of (A) two percent (2%) of the unpaid
principal balance of the existing mortgage loan or (B) $2000.
Escrow Account: The separate trust account or accounts created and maintained
pursuant to this Agreement which shall be entitled “Countrywide Home Loans Servicing LP, in trust
for the Purchaser and various Mortgagors, Conventional Mortgage Loans.”
Escrow Payments: The amounts constituting ground rents, taxes, assessments, water
rates, mortgage insurance premiums, fire and hazard insurance premiums and other payments required
to be escrowed by the Mortgagor with the mortgagee pursuant to any Mortgage Loan.
Event of Default: Any one of the conditions or circumstances enumerated in Subsection
14.01.
Fair Market Value: With respect to any Mortgage Loan, the market value of the related
Mortgaged Property as mutually agreed upon by the Servicer and the Purchaser. In the event the
Servicer and the Purchaser disagree as to such Fair Market Value, the Servicer shall have the
option to select an appraiser from a list of three independent appraisers selected by the
Purchaser, each of whom meets the minimum FNMA or FHLMC requisite qualifications for appraisers.
Such appraiser shall determine the Fair Market Value of the Mortgaged Property in accordance with
the then current guidelines for the Seller’s “full documentation program”. Such appraisal shall be
in a form acceptable to FNMA or FHLMC and shall be conclusive for the purposes of determining the
Fair Market Value of the Mortgaged Property. The fee for such appraisal shall be paid by the
Servicer, except in the event such fee is incurred in connection with calculating the Termination
Fee in which case the Purchaser shall pay the fee for such appraisal.
FDIC: The Federal Deposit Insurance Corporation, or any successor thereto.
FHLMC: Xxxxxxx Mac, formerly known as The Federal Home Loan Mortgage Corporation, or
any successor organization.
Fidelity Bond: A fidelity bond to be maintained by the Servicer pursuant to
Subsection 11.12.
FIRREA: The Financial Institutions Reform, Recovery, and Enforcement Act of 1989.
-4-
Fitch: Fitch Investors Services, Inc.
Fixed Rate Mortgage Loan: Any individual Mortgage Loan purchased pursuant to this
Agreement wherein the Mortgage Interest Rate set forth in the Mortgage Note is fixed for the term
of such Mortgage Loan, including any Balloon Mortgage Loan.
FNMA: Xxxxxx Xxx, formerly known as The Federal National Mortgage Association, or any
successor organization.
FNMA Guidelines: The Xxxxxx Xxx Xxxxxxx’ Guide and the Xxxxxx Xxx Servicers’ Guide
and all amendments or additions thereto, including, but not limited to, future updates thereof.
Funding Deadline: With respect to each Closing Date, one o’clock p.m. (1:00 p.m.)
New
York time, or such other time mutually agreed to by the Purchaser and the Seller.
Gross Margin: With respect to each Adjustable Rate Mortgage Loan, the fixed
percentage amount set forth in the related Mortgage Note which amount is added to the Index in
accordance with the terms of the related Mortgage Note to determine on each Interest Adjustment
Date, the Mortgage Interest Rate for such Adjustable Rate Mortgage Loan.
HUD: The Department of Housing and Urban Development or any federal agency or office
thereof which may from time to time succeed to the functions thereof.
Index: With respect to any Adjustable Rate Mortgage Loan, the index identified on the
Mortgage Loan Schedule and set forth in the related Mortgage Note for the purpose of calculating
the Mortgage Interest Rate thereon.
Information Diskette: A diskette or electronic file delivered by the Seller to the
Purchaser, or an electronic data transfer from the Seller to the Purchaser, in respect of each
Mortgage Loan Package which shall contain: (i) the information necessary for the Mortgage Loan
Schedule and (ii) the date the last Monthly Payment was actually applied to the unpaid principal
balance.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds of insurance
policies insuring the Mortgage Loan or the related Mortgaged Property.
Interest Adjustment Date: With respect to an Adjustable Rate Mortgage Loan, the date
on which an adjustment to the Mortgage Interest Rate on a Mortgage Note becomes effective.
Interest Only Mortgage Loan: A Mortgage Loan which requires only payments of interest
(and not principal) for a period of time specified in the related Mortgage Note.
Late Collections: With respect to any Mortgage Loan, all amounts received during any
Due Period, whether as late payments of Monthly Payments or as Liquidation Proceeds, Condemnation
Proceeds, Primary Mortgage Insurance Proceeds, Other Insurance Proceeds, proceeds of any REO
Disposition or otherwise, which represent late payments or
-5-
collections of Monthly Payments due but delinquent for a previous Due Period and not
previously recovered.
Lender PMI Mortgage Loan: Any individual Mortgage Loan subject to an LPMI Policy.
LIBOR Mortgage Loan: Any individual Mortgage Loan purchased pursuant to this
Agreement which contains a provision whereby the interest rate on such Mortgage Loan is adjusted
semi-annually or annually based upon the rate per annum equal to the average of interbank offered
rates for six-month or one year, as applicable, U.S. Dollar denominated deposits in the London
Market as published in The Wall Street Journal.
Lifetime Mortgage Interest Rate Cap: With respect to each Adjustable Rate Mortgage
Loan, the absolute maximum Mortgage Interest Rate payable, above which the Mortgage Interest Rate
cannot be adjusted.
Liquidation Proceeds: Amounts, other than Primary Mortgage Insurance Proceeds,
Condemnation Proceeds and Other Insurance Proceeds, received by the Servicer 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 an REO Property pursuant to Subsection
11.13.
Loan-to-Value Ratio or LTV: With respect to any Mortgage Loan, the ratio of
the outstanding principal amount of the Mortgage Loan as of the date of determination to the
Appraised Value of the related Mortgaged Property.
LPMI Fee. With respect to each Lender PMI Mortgage Loan, the portion of the Mortgage
Interest Rate as set forth on the related Mortgage Loan Schedule (which shall be payable solely
from the interest portion of Monthly Payments, Insurance Proceeds, Condemnation Proceeds or
Liquidation Proceeds), which, during such period prior to the required cancellation of the LPMI
Policy, shall be used to pay the premium due on the related LPMI Policy.
LPMI Policy. With respect to a Lender PMI Mortgage Loan, a policy of primary mortgage
guaranty insurance issued by a Qualified Insurer pursuant to which the related premium is to be
paid by the Servicer from payments of interest made by the Mortgagor in an amount as is set forth
in the related Mortgage Loan Schedule.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation organized and
existing under the laws of the State of Delaware, or any successor thereto.
MERS Mortgage Loan: Any Mortgage Loan registered with MERS on the MERS System.
MERS System: The system of recording transfers of mortgages electronically maintained
by MERS.
MIN: The Mortgage Identification Number for any MERS Mortgage Loan.
-6-
MOM Loan: Any Mortgage Loan as to which MERS is acting as mortgagee, solely as
nominee for the originator of such Mortgage Loan and its successors and assigns.
Monthly Advance: The aggregate of the advances made by the Servicer on any Remittance
Date pursuant to Subsection 11.19.
Monthly Payment: The scheduled monthly payment of principal and interest on a
Mortgage Loan.
Moody’s: Xxxxx’x Investors Service, Inc.
Mortgage: The mortgage, deed of trust or other instrument securing a Mortgage Note,
which creates a first lien on an unsubordinated estate in fee simple in real property securing the
Mortgage Note; except that with respect to real property located in the state of Hawaii, the
mortgage, deed of trust or other instrument securing the Mortgage Note may secure and create a
first lien upon a leasehold estate of the Mortgagor.
Mortgage File: With respect to each Mortgage Loan, the documents pertaining thereto
specified in Exhibit 5 and any additional documents required to be added to the Mortgage
File pursuant to this Agreement.
Mortgage Impairment Insurance Policy: A mortgage impairment or blanket hazard
insurance policy as required by Subsection 11.11.
Mortgage Interest Rate: The annual rate at which interest accrues on any Mortgage
Loan, exclusive of any primary mortgage insurance premium and, with respect to an Adjustable Rate
Mortgage Loan, as adjusted from time to time in accordance with the provisions of the related
Mortgage Note and in compliance with the related Lifetime Mortgage Interest Rate Cap, Periodic Rate
Cap and negative amortization features, if any, of the related Mortgage Note.
Mortgage Loan: An individual Mortgage Loan which is the subject of this Agreement,
each Mortgage Loan originally sold and subject to this Agreement being identified on the related
Mortgage Loan Schedule, which Mortgage Loan includes without limitation the Mortgage File, the
Monthly Payments, Principal Prepayments, Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds, REO Disposition proceeds, and all other rights, benefits, proceeds and obligations
arising from or in connection with such Mortgage Loan.
Mortgage Loan Documents: The documents contained in the Mortgage File.
Mortgage Loan Package: The pool of Mortgage Loans sold to the Purchaser on the
related Closing Date.
Mortgage Loan Remittance Rate: With respect to each Mortgage Loan, the interest rate
payable to the Purchaser on each Remittance Date which shall equal the Mortgage Interest Rate less
the Servicing Fee and any pool insurance policy premiums (including, without limitation, LPMI
Fees), if applicable.
-7-
Mortgage Loan Schedule: The schedule of Mortgage Loans to be prepared by the Seller
or Purchaser (at Seller’s option) from information contained on an Information Diskette and other
information delivered by the Seller to the Purchaser in respect of each Mortgage Loan Package,
setting forth the following information with respect to each Mortgage Loan: (1) the Seller’s
Mortgage Loan identifying number; (2) the Mortgagor’s name; (3) the street address of the Mortgaged
Property including the city, state and zip code; (4) a code indicating whether the Mortgaged
Property is the Mortgagor’s primary residence, secondary residence or an investor property; (5) the
type of residential units constituting the Mortgaged Property (i.e., detached single family,
two-to-four-family, condominium units, etc.); (6) the original months to maturity or the remaining
months to maturity from the Cut-off Date, in any case based on the original amortization schedule
and, if different, the maturity expressed in the same manner but based on the actual amortization
schedule; (7) the Appraised Value (including the purchase price of the Mortgaged Property, if
applicable) of the Mortgaged Property and the Loan- to-Value Ratio at origination; (8) the Mortgage
Interest Rate at origination; (9) the date on which the initial Monthly Payment was due on the
Mortgage Loan; (10) the stated maturity date; (11) the amount of the Monthly Payment as of the
Cut-off Date; (12) the original principal amount of the Mortgage Loan; (13) the principal balance
of the Mortgage Loan as of the close of business on the Cut-off Date, after deduction of payments
of principal due on or before the Cut-off Date whether or not collected; (14) with respect to an
Adjustable Rate Mortgage Loan, the first Interest Adjustment Date after each of the related
origination date and related Cut-Off Date; (15) with respect to an Adjustable Rate Mortgage Loan,
the Gross Margin; (16) a code indicating the purpose of the loan (i.e., purchase, rate and term
refinance, equity take-out refinance); (17) with respect to an Adjustable Rate Mortgage Loan, the
Lifetime Mortgage Interest Rate Cap under the terms of the Mortgage Note; (18) with respect to an
Adjustable Rate Mortgage Loan other than a NegAm Mortgage Loan, the Periodic Rate Cap; (19) the
Servicing Fee Rate; (20) a code indicating the documentation style (i.e., full, alternative,
reduced or streamlined); (21) a code indicating whether the Mortgage Loan is Convertible or
Non-Convertible, (22) a code indicating whether the Mortgage Loan is a Balloon, Interest Only,
LIBOR, NegAm, CD, Fixed, 3/1 ARM, 5/1 ARM, 7/1 ARM, 10/1 ARM or Treasury Mortgage Loan; (23) with
respect to a Fixed Rate Mortgage Loan, a code indicating whether the Mortgage Loan contains a
temporary “buydown” provision and, if so, the term and type of buydown; (24) the Primary Mortgage
Insurance Policy number, if any, which number (or an additional code) shall identify the applicable
Primary Mortgage Insurance Policy provider and the coverage amount; (25) with respect to a NegAm
Mortgage Loan, the first Payment Adjustment Date; (26) a code indicating whether the Mortgage Loan
is a MERS Mortgage Loan and, if so, the corresponding MIN; (27) a code indicating whether the
Mortgage Loan is a Lender PMI Mortgage Loan and, in the case of any Lender PMI Mortgage Loan, the
LPMI Fee; (28) the Mortgage Interest Rate as of the Cut-off Date; (29) with respect to an
Adjustable Rate Mortgage Loan, the related initial Periodic Rate Cap; (30) the date on which the
Mortgage Loan was originated; (31) a code indicating whether the Mortgage Loan is subject to a
prepayment penalty and if so, the terms of such prepayment penalty; (32) the Mortgagor’s credit
score at the time of origination of the Mortgage Loan; (33) the paid through date; (34) with
respect to each Mortgage Loan originated more than six months prior to the related Closing Date,
the number of times in the previous twelve month period preceding the related Closing Date that any
Monthly Payment has been received thirty or more days after its Due Date; and (35) any other
information to be listed as agreed to between the Seller and the Purchaser. With respect to the
Mortgage Loans in the aggregate, the Mortgage
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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; and (3) the
weighted average Mortgage Interest Rate of the Mortgage Loans. Such schedule may be delivered in
magnetic tape or hard copy form.
Mortgage Note: The note or other evidence of the indebtedness of a Mortgagor secured
by a Mortgage.
Mortgaged Property: The real property (or leasehold estate, if applicable, in the
case of a Mortgage Loan in the state of Hawaii) securing repayment of the debt evidenced by a
Mortgage Note.
Mortgagor: The obligor on a Mortgage Note.
NegAm Mortgage Loan: Any individual Mortgage Loan purchased pursuant to this
Agreement which permits negative amortization and which contains a provision whereby the interest
rate on such Mortgage Loan is adjusted monthly.
Negative Amortization Cap: With respect to each NegAm Mortgage Loan, the provision of
each Mortgage Note which provides for an absolute maximum percentage of the original principal
amount of such Mortgage Loan that the outstanding principal amount of the Mortgage Loan may reach
as a result of negative amortization which shall percentage shall not be greater than permitted
under applicable state law.
Non-Convertible Mortgage Loan: Any individual Adjustable Rate Mortgage Loan purchased
pursuant to this Agreement which does not contain a provision whereby the Mortgagor may convert the
Mortgage Loan to a fixed-rate mortgage loan.
Nonrecoverable Advance: Any Monthly Advance or Servicing Advance previously made or
proposed to be made in respect of a Mortgage Loan which, in the good faith judgment of the Servicer
using Accepted Servicing Practices, will not or, in the case of a proposed advance, would not, be
ultimately recoverable from related Late Collections, Insurance Proceeds, Other Insurance Proceeds,
Liquidation Proceeds or otherwise from such Mortgage Loan.
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 Seller or the Servicer, as
applicable, and delivered to the Purchaser.
Opinion of Counsel: A written opinion of counsel, who may be an employee of the party
on behalf of whom the opinion is being given, reasonably acceptable to the Purchaser.
Other Insurance Proceeds: Proceeds of any title policy, hazard policy, pool policy or
other insurance policy covering a Mortgage Loan, other than the Primary Mortgage Insurance Policy,
if any, to the extent such proceeds are not to be applied to the restoration of the related
Mortgaged Property or released to the Mortgagor in accordance with the procedures that the Servicer
would follow in servicing mortgage loans held for its own account.
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OTS: The Office of Thrift Supervision, its successors and assigns.
Pass-Through Transfer: The sale or transfer of some or all of the Mortgage Loans to a
trust to be formed as part of a publicly or privately traded pass-through transaction retaining the
Seller as “servicer” thereunder.
Payment Adjustment Date: With respect to each Adjustable Rate Mortgage Loan, the date
on which an adjustment to the Monthly Payment pursuant to the related Mortgage Note becomes
effective.
Periodic Payment Cap: With respect to each NegAm Mortgage Loan, the provision of each
Mortgage Note which permits limiting any change in the amount of the adjusted Monthly Payment due
on any Payment Adjustment Date to an amount not greater than a certain percentage (set forth in the
Mortgage Note) of the amount of the Monthly Payment due on the preceding Due Date. The Periodic
Payment Cap for a NegAm Mortgage Loan shall not exceed the limits imposed by applicable state law.
Periodic Rate Cap: With respect to each Adjustable Rate Mortgage Loan other than a
NegAm Mortgage Loan, the provision of each Mortgage Note which provides for an absolute maximum
amount by which the Mortgage Interest Rate therein may increase or decrease on an Interest
Adjustment Date above the Mortgage Interest Rate previously in effect, equal to the rate set forth
on the Mortgage Loan Schedule per adjustment.
Person: Any individual, corporation, partnership, joint venture, association,
joint-stock company, limited liability company, trust, unincorporated organization or government or
any agency or political subdivision thereof.
Prepayment Interest Shortfall Amount: With respect to any Mortgage Loan that was
subject to a Principal Prepayment in full or in part during any Due Period, which Principal
Prepayment was applied to such Mortgage Loan prior to such Mortgage Loan’s Due Date in such Due
Period, the amount of interest (net of the related Servicing Fee) that would have accrued on the
amount of such Principal Prepayment during the period commencing on the date as of which such
Principal Prepayment was applied to such Mortgage Loan and ending on the day immediately preceding
such Due Date, inclusive.
Primary Mortgage Insurance Policy: A policy of primary mortgage guaranty insurance
issued by a Qualified Insurer which conforms in all respects to the description set forth in
Subsection 7.02(xxxi) herein.
Primary Mortgage Insurance Proceeds: Proceeds of any Primary Mortgage Insurance
Policy.
Principal Prepayment: Any payment or other recovery of principal on a Mortgage Loan
which is received in advance of its scheduled Due Date 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.
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Principal Prepayment Period: As to any Remittance Date, period commencing on the
2nd day of the calendar month preceding the month in which such Remittance Date occurs
and ending on the 1st day of the month in which such Remittance Date occurs, both
inclusive.
Purchase Price: The price paid on the related Closing Date by the Purchaser to the
Seller in exchange for the Mortgage Loans purchased on such Closing Date as calculated in Section 4
of this Agreement.
Purchase Price and Terms Letters: Those certain letter agreements executed on or
after the date hereof setting forth the general terms and conditions of each transaction
contemplated herein and identifying the loan characteristics of the Mortgage Loans to be purchased
from time to time hereunder, by and between the Seller and the Purchaser. All of the individual
Purchase Price and Terms Letters shall collectively be referred to as the “Purchase Price and
Terms Letter”.
Purchaser: DLJ Mortgage Capital, Inc. or its successor in interest or any successor
to or assignee of the Purchaser under this Agreement as herein provided.
Qualified Insurer: An insurance company duly qualified as such under the laws of the
states in which the Mortgaged Properties are located, duly authorized and licensed in such states
to transact the applicable insurance business and to write the insurance provided, approved as an
insurer by FNMA and FHLMC and whose claims paying ability is rated in one of the two highest rating
categories by the Standard & Poor’s or Xxxxx’x with respect to primary mortgage insurance and in
one of the two highest rating categories by A.M. Best Company, Inc. with respect to hazard and
flood insurance.
Qualified Substitute Mortgage Loan: A mortgage loan eligible to be substituted by the
Seller for a Deleted Mortgage Loan which must, on the date of such substitution, (i) have an unpaid
principal balance, after deduction of all scheduled payments due in the month of substitution (or
in the case of a substitution of more than one (1) mortgage loan for a Deleted Mortgage Loan, an
aggregate principal balance), not in excess of the unpaid principal balance of the Deleted Mortgage
Loan (the amount of any shortfall will be deposited in the Custodial Account by the Seller in the
month of substitution); (ii) have a Mortgage Interest Rate not less than, and not more than 1%
greater than, the Mortgage Interest Rate of the Deleted Mortgage Loan; (iii) have a remaining term
to maturity not later than, and not more than one year earlier than, the maturity date of the
Deleted Mortgage Loan; (iv) comply with each representation and warranty (respecting individual
Mortgage Loans) set forth in Subsection 7.02 hereof; and (v) be the same type of Mortgage Loan as
the Deleted Mortgage Loan.
Reconstitution Agreements: The agreement or agreements entered into by the Servicer
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
Pass-Through Transfer as set forth in Section 12. Such agreement or agreements shall prescribe the
rights and obligations of the Seller in servicing the related Mortgage Loans.
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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 Pass-Through Transfer pursuant to Section 12 hereof.
Record Date: The close of business of the last Business Day of the month preceding
the month of the related Remittance Date.
Refinanced Mortgage Loan: A Mortgage Loan which was made to a Mortgagor who owned the
Mortgaged Property prior to the origination of such Mortgage Loan and the proceeds of which were
used in whole or part to satisfy an existing mortgage.
Relief Act: The Servicemembers Civil Relief Act, or any similar state or local law.
Relief Act Interest Shortfall: With respect to any Remittance Date, for any Mortgage
Loan with respect to which there has been a reduction in the amount of interest collectable thereon
for the most recently ended Due Period as a result of the application of the Relief Act, the amount
by which (i) interest collectable on such Mortgage Loan during such Due Period is less than (ii)
one month’s interest on the Stated Principal Balance of such Mortgage Loan at the related Mortgage
Interest Rate before giving effect to the application of the Relief Act.
REMIC: A “real estate mortgage investment conduit” within the meaning of Section 860D
of the Internal Revenue Code.
Remittance Date: The eighteenth (18th) day of any month, beginning with the First
Remittance Date, or if such eighteenth (18th) day is not a Business Day, the first Business Day
immediately following.
REO Account: The account created and maintained pursuant to Subsection 11.13, which
account shall be an Eligible Account.
REO Disposition: The final sale by the Seller of any REO Property.
REO Property: A Mortgaged Property acquired by the Servicer on behalf of the
Purchaser as described in Subsection 11.13.
Repurchase Price: With respect to any Mortgage Loan, a price equal to (i) the Stated
Principal Balance of the Mortgage Loan plus (ii) interest on such Stated Principal Balance at the
Mortgage Loan Remittance Rate from the last date through which interest has been paid and
distributed to the Purchaser to the date of repurchase, less amounts received or advanced in
respect of such repurchased Mortgage Loan which are being held in the Custodial Account for
distribution in the month of repurchase plus (iii) with respect to any Mortgage Loan included in a
Pass-Through Transfer, any costs incurred by the related trust in connection with the breach of any
predatory and abusive lending law by such Mortgage Loan.
SAIF: The Savings Association Insurance Fund, or any successor thereto.
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Seller: Countrywide Home Loans, Inc., or any successor to the Seller under this
Agreement as provided herein.
Servicer: Countrywide Home Loans Servicing LP, or any successor to or assignee of the
Servicer under this Agreement as provided herein.
Servicing Advances: All customary, reasonable and necessary “out of pocket” costs and
expenses incurred in the performance by the Servicer of its servicing obligations, including, but
not limited to, the cost of (i) the preservation, restoration and protection of the Mortgaged
Property, (ii) any enforcement or judicial proceedings, including foreclosures, (iii) the
management and liquidation of the REO Property and (iv) compliance with the obligations under
Subsection 11.08.
Servicing Fee: With respect to each Mortgage Loan, the amount of the annual fee the
Purchaser shall pay to the Servicer, which shall, for a period of one full month, be equal to
one-twelfth of the product of (a) the Servicing Fee Rate and (b) the Stated Principal Balance of
such Mortgage Loan. Such fee shall be payable monthly, computed on the basis of the same principal
amount and period respecting which any related interest payment on a Mortgage Loan is computed.
The obligation of the Purchaser to pay the Servicing Fee is limited to, and the Servicing Fee is
payable solely from, the interest portion of such Monthly Payment collected by the Servicer, or as
otherwise provided under Subsection 11.24 hereof. With respect to REO Property, the Servicing Fee
shall be payable to the Servicer through REO Disposition in accordance with Subsection 11.13, which
Servicing Fee payable in respect of any REO Property shall be based upon the Stated Principal
Balance of the related Mortgage Loan at the time of foreclosure, as reduced by any income or
proceeds received by Purchaser in respect of such REO Property and applied to reduce the
outstanding principal balance of the foreclosed Mortgage Loan.
Servicing Fee Rate: With respect to each transaction contemplated herein, the per
annum rate set forth as such in the related Purchase Price and Terms Letter.
Servicing File: With respect to each Mortgage Loan, the documents pertaining to such
Mortgage Loan retained by the Servicer, consisting of copies or microfilmed copies, as the case may
be, of each of the documents in the Mortgage File and originals of each of the other documents set
forth in Exhibit 6 hereto. Such documents may be maintained on microfilm (provided that
the Servicer shall deliver to the Purchaser an electronic copy of the Servicing File upon the
Purchaser’s request).
Servicing Officer: Any officer of the Servicer involved in, or responsible for, the
administration and servicing of the Mortgage Loans whose name appears on a list of servicing
officers furnished by the Servicer to the Purchaser upon request, as such list may from time to
time be amended.
Standard & Poor’s: Standard & Poor’s Ratings Services, a division of the XxXxxx-Xxxx
Companies, Inc.
Stated Principal Balance: With respect to each Mortgage Loan as of the date of such
determination: (i) the unpaid principal balance of the Mortgage Loan as of the Cut-off Date
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after giving effect to payments of principal due on or before such date, whether or not
received, and without giving effect to payments received on or before such date in respect of
payments due after such date for application on the scheduled Due Date, minus (ii) all amounts
previously distributed to the Purchaser with respect to the related Mortgage Loan representing
payments or recoveries of principal or advances in lieu thereof.
Termination Fee: The amount paid to the Servicer by the Purchaser in the event of the
Servicer’s termination without cause, as servicer. Such fee shall equal 2% of (a) the then current
unpaid principal balance of the Mortgage Loans, and (b) in the case of REO Property, the lesser of
(i) 100% of the Stated Principal Balance of the Mortgage Loan encumbering the Mortgaged Property at
the time such Mortgaged Property was acquired and became REO Property or (ii) the Fair Market Value
of the REO Property at the time of termination.
Treasury Mortgage Loan: Any individual Adjustable Rate Mortgage Loan purchased
pursuant to this Agreement which contains a provision whereby the interest rate on such Mortgage
Loan is adjusted annually based upon the weekly average yield on U.S. Treasury securities.
Updated Loan-to-Value Ratio: With respect to any Mortgage Loan, the outstanding
principal balance of such Mortgage Loan as of the date of determination divided by the Value of the
related Mortgaged Property as determined by the appraisal made for the originator at the time of
origination of the Mortgage Loan or in the event that an appraisal was made since the origination
of the Mortgage Loan then the latest appraisal of the Mortgaged Property. Such appraisal shall (i)
be in a form acceptable to FNMA and FHLMC and (ii) meet the then current guidelines for the
Seller’s so called “full documentation” program.
Whole Loan Agreement: Any Reconstitution Agreement in respect of a Whole Loan
Transfer.
Whole Loan Transfer: The sale or transfer by Purchaser of some or all of the Mortgage
Loans in a whole loan or participation certificate format pursuant to a Reconstitution Agreement
retaining the Servicer as “servicer” thereunder.
SECTION 2. Agreement to Purchase; Servicing of the Mortgage Loans.
The Seller agrees to sell, and the Purchaser agrees to purchase, on a servicing retained
basis, Mortgage Loans having an aggregate unpaid principal balance on the related Cut-off Date in
an amount as set forth in the related Purchase Price and Terms Letter, or in such other amount as
agreed by the Purchaser and the Seller as evidenced by the actual aggregate unpaid principal
balance of the Mortgage Loans accepted by the Purchaser on the related Closing Date.
Simultaneously with the execution and delivery of the related Assignment and Conveyance, for
each Mortgage Loan Package, the Servicer does hereby agree to service the Mortgage Loans listed on
the related Mortgage Loan Schedule in accordance with Accepted Servicing Practices and the terms of
this Agreement. The rights of the Purchaser to receive payments with respect to the related
Mortgage Loans shall be as set forth in this Agreement.
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SECTION 3. Mortgage Schedules.
At least four (4) Business Days prior to the related Funding Deadline, the Seller shall
deliver to the Purchaser the Information Diskette and all other information agreed to be provided
by the Seller in the definition of Information Diskette or in the Purchase Price and Terms Letter
with respect to each Mortgage Loan, which Information Diskette, with all other applicable
information given by the Seller to the Purchaser, shall be used to prepare the Mortgage Loan
Schedule listing the Mortgage Loans to be purchased on such Closing Date. Such Mortgage Loans shall
conform to the terms set forth in the related Purchase Price and Terms Letter and, to the extent
not consistent with the related Purchase Price and Terms Letter and this Agreement, any Mortgage
Loans which do not so conform shall, at the Purchaser’s option, be deleted from the Mortgage Loan
Schedule prior to the related Closing Date, and, pursuant to Subsection 7.04 of this Agreement, may
be replaced by a Qualified Substitute Mortgage Loan (or Mortgage Loans).
SECTION 4. Purchase Price.
The Purchase Price for each Mortgage Loan shall be the percentage of par as stated in the
related Purchase Price and Terms Letter (subject to adjustment as provided therein), multiplied by
the aggregate Stated Principal Balance, as of the related Cut-off Date, of the Mortgage Loans
listed on the related Mortgage Loan Schedule. If so provided in the related Purchase Price and
Terms Letter, portions of the Mortgage Loans shall be priced separately.
In addition to the Purchase Price as described above, the Purchaser shall pay to the Seller,
at closing, accrued interest on the Stated Principal Balance as of the Cut-off Date of the related
Mortgage Loans at the weighted average Mortgage Interest Rate of those Mortgage Loans, net of the
related Servicing Fee Rate, from the related Cut-off Date to the day prior to the related Closing
Date, inclusive and, with respect to Lender PMI Mortgage Loans, net of the related LPMI Fee, from
the related Cut-off Date to the day prior to the related Closing Date, inclusive.
The Purchaser shall be entitled to (l) 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), and (3) all
payments of interest on the Mortgage Loans net of the related Servicing Fee (minus that portion of
any such payment which is allocable to the period prior to the related Cut-off Date) and, with
respect to Lender PMI Mortgage Loans, net of the related LPMI Fee. The unpaid principal balance of
each Mortgage Loan as of the related Cut-off Date is determined after application of payments of
principal due on or before the related Cut-off Date, whether or not collected. Therefore, payments
of scheduled principal and interest prepaid for a due date beyond the related Cut-off Date shall
not be applied to the principal balance as of the related Cut-off Date. Such prepaid amounts
(minus interest at the Servicing Fee Rate and the related LPMI Fee, if any) shall be the property
of the Purchaser. The Seller shall remit any such prepaid amounts to the Servicer for deposit
into the Custodial Account, which account is established for the benefit of the Purchaser for
subsequent remittance by the Servicer to the Purchaser. All
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payments of principal and interest, less interest at the Servicing Fee Rate and the related
LPMI Fee, if any, due on the first Due Date after the related Cut-off Date shall belong to the
Purchaser.
SECTION 5. Examination of Mortgage Files.
Not later than five (5) Business Days prior to the related Closing Date, the Seller shall (a)
deliver to the Custodian in escrow, for examination with respect to each Mortgage Loan to be
purchased, the related Mortgage Loan Documents, including the Assignment of Mortgage, pertaining to
each Mortgage Loan, or (b) make the related Mortgage File available to the Purchaser for
examination at the Seller’s offices or such other location as shall otherwise be agreed upon by the
Purchaser and the Seller. Such examination may be made by the Purchaser or its designee at any
reasonable time before or after the related Closing Date. If the Purchaser makes such examination
prior to the related Closing Date and identifies any Mortgage Loans that do not conform to the
requirements of the related Purchase Price and Terms Letter, such Mortgage Loans, at the
Purchaser’s option, shall be deleted from the related Mortgage Loan Schedule, and, pursuant to
Subsection 7.04 of this Agreement, may be replaced by a Qualified Substitute Mortgage Loan (or
Mortgage Loans). The Purchaser may, at its option and without notice to the Seller as to whether it
has examined the Mortgage Files, purchase all or part of the Mortgage Loans without conducting any
partial or complete examination. The fact that the Purchaser or its designee has conducted or has
failed to conduct any partial or complete examination of the Mortgage Files shall not affect the
Purchaser’s (or any of its successor’s) rights to demand repurchase, substitution or other relief
as provided herein.
From the related Closing Date until thirty (30) days after the related Closing Date, the
Purchaser, upon notice to the Seller, shall have the right to commence or continue its examination
of the Mortgage Files related to the Mortgage Loans to be purchased and sold on such Closing Date.
If, based on the results of the examination conducted during such ten Business Day period, the
Purchaser identifies any Mortgage Loans that do not conform to the requirements of the related
Purchase Price and Terms Letter, such Mortgage Loans, at the Purchaser’s option and upon giving
notice (which may be by electronic mail) to the Seller no later than one Business Day after the
expiration of such thirty day period, shall be deleted from the related Mortgage Loan Schedule and,
pursuant to Subsection 7.04, either (i) repurchased by the Seller at the related Purchase Price (as
calculated pursuant to Section 4 and the related Purchase Price and Terms Letter) plus accrued and
unpaid interest thereon at the applicable Mortgage Loan Remittance Rate or (ii) replaced by a
Qualified Substitute Mortgage Loan (or Mortgage Loans). Such repurchase or substitution shall be
effected by the Seller within thirty (30) days from the date of its receipt of notice from the
Purchaser requesting the same. The rights and remedies set forth in this Section 5 are in addition
to those set forth in Subsection 7.04.
SECTION 6. Conveyance from Seller to Purchaser.
Subsection 6.01 Conveyance of Mortgage Loans; Possession of Servicing Files
On each Closing Date, the Seller shall execute and deliver an Assignment and Conveyance in the
form attached hereto as Exhibit 4. The sale of each Mortgage Loan shall be reflected on the
Seller’s balance sheet and other financial statements as a sale of assets by the Seller. The
Servicing File retained by the Servicer pursuant to this Agreement shall be
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appropriately identified in the Servicer’s computer system to clearly reflect the sale of the
related Mortgage Loan to the Purchaser. The Servicer shall release from its custody the contents
of any Servicing File retained by it only in accordance with this Agreement.
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 relevant Mortgage Loan originator or the Seller. Notwithstanding the
foregoing, ownership of each Mortgage and related Mortgage Note shall be possessed solely by 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 Servicer after the
related Cut-off Date on or in connection with a Mortgage Loan, other than as provided in this
Agreement, shall be vested in the Purchaser or one or more designees of the Purchaser; provided,
however, that all funds received on or in connection with a Mortgage Loan shall be received and
held by the Servicer in trust for the benefit of the Purchaser or the appropriate designee of the
Purchaser, as the case may be, as the owner of the Mortgage Loans pursuant to the terms of this
Agreement.
The Servicer shall be responsible for maintaining, and shall maintain, a complete set of books
and records for the Mortgage Loans which shall be appropriately identified in the Servicer’s
computer system to clearly reflect the ownership of the Mortgage Loan by the Purchaser. In
particular, the Servicer shall maintain in its possession, available for inspection by the
Purchaser, or its designee and shall deliver to the Purchaser upon written request, evidence of
compliance with all federal, state and local laws, rules and regulations, and requirements of FNMA
or FHLMC, including but not limited to documentation as to the method used in determining the
applicability of the provisions of the Flood Disaster Protection Act of 1973, as amended, to the
Mortgaged Property, documentation evidencing insurance coverage and eligibility of any condominium
project for approval by FNMA and periodic inspection reports as required by Subsection 11.13. To
the extent that original documents are not required to be maintained under applicable law or not
otherwise required for purposes of realization of Liquidation Proceeds or Other Insurance Proceeds,
documents maintained by the Servicer may be in the form of microfilm or microfiche or such other
reliable means of recreating original documents, including but not limited to, optical imagery
techniques so long as such means comply with the requirements of the FNMA Guidelines, as amended
from time to time.
The Servicer shall maintain with respect to each Mortgage Loan and shall make available for
inspection by any Purchaser or its designee the related Servicing File during the time the
Purchaser retains ownership of a Mortgage Loan and thereafter in accordance with applicable laws
and regulations.
The Servicer shall keep at its servicing office books and records in which, subject to such
reasonable regulations as it may prescribe, the Servicer shall note transfers of Mortgage Loans. No
transfer of a Mortgage Loan may be made unless such transfer is in compliance with the terms
hereof. For the purposes of this Agreement, the Servicer shall be under no obligation to deal with
any person with respect to this Agreement or the Mortgage Loans unless the books and records show
such person as the owner of the Mortgage Loan. The Purchaser may, subject to the terms of this
Agreement, sell and transfer one or more of the Mortgage Loans, provided,
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however, that the transferee will not be deemed to be a Purchaser hereunder binding upon the
Servicer unless such transferee shall agree in writing to be bound by the terms of this Agreement
and an original counterpart of the instrument of transfer and an Assignment, Assumption and
Recognition Agreement substantially in the form of Exhibit 12 hereto executed by the
transferee shall have been delivered to the Servicer by the transferee. The Purchaser also shall
advise the Servicer of the transfer. Upon receipt of notice of the transfer, the Servicer shall
xxxx its books and records to reflect the ownership of the Mortgage Loans of such assignee, and
shall release the previous Purchaser from its obligations hereunder with respect to the Mortgage
Loans sold or transferred.
Subsection 6.03 Delivery of Mortgage Loan Documents.
With respect to each Mortgage Loan, five (5) Business Days prior to the related Closing Date,
the Seller shall deliver and release to the Custodian the following documents (with the exceptions
noted below):
(i) The original Mortgage Note endorsed by manual [or facsimile] signature in blank in
the following form: “Pay to the order of ___, without recourse” with all
intervening endorsements showing a complete chain of endorsements from the originator to the
Seller;
(ii) in the case of each Mortgage Loan that is not a MERS Mortgage Loan, a duly
executed Assignment of Mortgage, from the Seller in blank, which assignment shall be in form
and substance acceptable for recording;
(iii) For each Mortgage Loan that is not a MERS Mortgage Loan, the original recorded
Mortgage and in the case of each MERS Mortgage Loan, the original Mortgage, noting the
presence of the MIN for that Mortgage Loan and either language indicating that the Mortgage
Loan is a MOM Loan if the Mortgage Loan is a MOM Loan, or if such Mortgage Loan was not a
MOM Loan at origination, the original Mortgage and the assignment to MERS, with evidence of
recording thereon. If in connection with any Mortgage Loan, the Seller has not delivered or
caused to be delivered the original Mortgage with evidence of recording thereon on or prior
to the Closing Date because of a delay caused by the public recording office where such
Mortgage has been delivered for recordation or because such Mortgage has been lost or
because such public recording office retains the original recorded Mortgage, the Seller
shall deliver or cause to be delivered to the Purchaser or the Purchaser’s designee, (a) in
the case of a delay caused by the public recording office, a copy of such Mortgage certified
by the Seller to be a true and complete copy of the original recorded Mortgage and (b) 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;
(iv) Recorded originals of any intervening assignments, showing a complete chain of
title from the originator to the Seller (or to MERS, if the Mortgage Loan is registered on
the MERS System), with evidence of recording thereon;
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(v) Originals of each assumption, modification, written assurance or substitution of
liability agreement, if any;
(vi) The original of each guarantee executed in connection with the Mortgage Note, if
any;
(vii) If the Loan-to-Value Ratio indicated on the Mortgage Loan Schedule exceeds 80%,
the Seller shall provide the name of the insurer of the related Primary Mortgage Insurance
Policy, the amount of the Primary Mortgage Insurance Policy and the certificate number of
the Primary Mortgage Insurance Policy, if any; and
(viii) 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.
In addition, in connection with the assignment of any MERS Mortgage Loan, the Seller agrees
that it will cause, at the Seller’s expense, the MERS System to indicate that such Mortgage Loans
have been assigned by the Seller to the Purchaser in accordance with this Agreement (or deleting,
in the case of Mortgage Loans which are repurchased in accordance with this Agreement) by including
in such computer files the information required by the MERS System to identify the Purchaser and
the series in which such Mortgage Loans were sold. The Seller further agrees that it will not alter
the information required by the MERS System as referenced in this paragraph with respect to any
Mortgage Loan during the term of this Agreement unless and until such Mortgage Loan is repurchased
in accordance with the terms of this Agreement or as otherwise directed by the Purchaser.
If, pursuant to the foregoing provisions, the Seller repurchases a Mortgage Loan that is a
MERS Mortgage Loan, the Seller shall either (i) cause MERS to execute and deliver an Assignment of
Mortgage in recordable form to transfer the Mortgage from MERS to the Seller and shall cause such
Mortgage to be removed from registration on the MERS System in accordance with MERS’ rules and
regulations or (ii) cause MERS to designate on the MERS System the Seller or its designee as the
beneficial holder of such Mortgage Loan.
The Custodian shall certify its receipt of all such Mortgage Loan Documents required to be
delivered pursuant to the Custodial Agreement for the related Closing Date, as evidenced by the
Initial Certification of the Custodian in the form annexed to the Custodial Agreement. The
Purchaser shall pay all fees and expenses of the Custodian.
The Seller shall forward by personal delivery, recognized overnight delivery service or
registered or certified first class mail, postage prepaid, return receipt requested to the
Custodian original documents evidencing an assumption, modification, consolidation or extension of
any Mortgage Loan entered into in accordance with this Agreement within two (2) weeks of their
execution, provided, however, that the Seller shall provide the Custodian with a certified true
copy of any such document submitted for recordation within two (2) 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
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copy of the original promptly upon receipt of same, but in no event later than one hundred and
eighty (180) days after such document was submitted for recording.
If the Seller cannot deliver any original Mortgage Loan Document on the related Closing Date,
the Seller, promptly on receipt thereof, shall deliver (a) any such original recorded Mortgage Loan
Document within one hundred eighty (180) days of the related Closing Date and (b) any unrecorded
Mortgage Loan Document within one hundred twenty (120) days of the related Closing Date. In the
event the Seller cannot deliver any original recorded Mortgage Loan Document within one hundred
eighty (180) days of the related Closing Date, solely because such documents have not been returned
to the Seller by the appropriate public recording office, the Seller shall notify the Purchaser or
its designee (which notice may be by electronic mail), which notice shall (i) identify the recorded
document, (ii) state that the recorded document has not been delivered to the Purchaser or its
designee due solely to a delay caused by the public recording office, and (iii) state the amount of
time generally required by the applicable recording office to record and return a document
submitted for recordation. In the event that documents have not been received by the date
specified in such notice, the Seller shall notify the Purchaser of the same and upon written
request from the Purchaser, repurchase (subject to the proviso below) the related Mortgage Loan at
the price and in the manner specified in Subsection 7.04; provided, however, that
the Seller shall be obligated to repurchase the related Mortgage Loan only if the failure to
deliver any such recorded Mortgage Loan Document materially and adversely affects the interests of
the Purchaser in such Mortgage Loan or materially and adversely affects the ability of the Servicer
to service such Mortgage Loan in accordance with the terms of this Agreement.
Any review by the Purchaser or its designee of the Mortgage Files shall in no way alter or
reduce the Seller’s obligations hereunder. If the Purchaser or its designee discovers any defect
with respect to any document constituting part of a Mortgage File, the Purchaser shall, or shall
cause its designee to, give written specification of such defect to the Seller and the Seller shall
cure or repurchase such Mortgage Loan in accordance with Subsection 7.04.
Subsection 6.04 Quality Control Procedures.
The Seller must have an internal quality control program that verifies, on a regular basis,
the existence and accuracy of the legal documents, credit documents, property appraisals, and
underwriting decisions. The program must be capable of evaluating and monitoring the overall
quality of its loan production and servicing activities. The program is to ensure that the
Mortgage Loans are originated and serviced in accordance with prudent mortgage banking practices
and accounting principles; guard against dishonest, fraudulent, or negligent acts; and guard
against errors and omissions by officers, employees, or other authorized persons.
SECTION 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 that as of each Closing Date or
as of such date specifically provided herein:
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(i) The Seller is duly organized, validly existing and in good standing under the laws
of
New York and is licensed and qualified to transact business in and is in good standing
under the laws of each state where a Mortgaged Property is located or is otherwise exempt
under applicable law from such licensing or qualification or is otherwise not required under
applicable law to effect such licensed and qualification and no demand for such licensing or
qualification has been made upon the Seller by any state having jurisdiction and in any
event the Seller is or will be in compliance with the laws of any such state to the extent
necessary to insure the enforceability of each Mortgage Loan and the servicing of the
Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Seller has the full power and authority 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 and has duly
executed and delivered this Agreement. 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. As of
the related Closing Date, the Seller has the full power and authority to hold each Mortgage
Loan and to sell each Mortgage Loan;
(iii) Neither the execution and delivery of this Agreement, the acquisition or
origination of the Mortgage Loans by the Seller, the sale of the Mortgage Loans to the
Purchaser, the consummation of the transactions contemplated hereby, nor the fulfillment of
or compliance with the terms and conditions of this Agreement, will conflict with or result
in a breach of any of the terms, conditions or provisions of the Seller’s certificate of
incorporation or by-laws or result in a material breach of any legal restriction or any
agreement or instrument to which the Seller is now a party or by which it is bound, or
constitute a material default or result in an acceleration under any of the foregoing, or
result in the violation of any law, rule, regulation, order, judgment or decree to which the
Seller or its property is subject or impair the ability of the Purchaser to realize on the
Mortgage Loans, or impair the value of the Mortgage Loans;
(iv) The Seller is an approved seller/servicer for either FNMA or FHLMC in good
standing and is a mortgagee approved by the Secretary of HUD. No event has occurred,
including but not limited to a change in insurance coverage, which would make the Seller
unable to comply with FNMA, FHLMC or HUD eligibility requirements or which would require
notification to FNMA, FHLMC or HUD;
(v) 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;
(vi) There is no action, suit, proceeding, investigation or litigation pending or, to
the Seller’s knowledge, threatened, which either in any one instance or in the aggregate, if
determined adversely to the Seller would adversely affect the sale of the Mortgage Loans to
the Purchaser, the execution, delivery or enforceability of this Agreement, the ability of
the Seller to service the Mortgage Loans hereunder in
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accordance with the terms hereof, or the Seller’s ability to perform its obligations
under this Agreement;
(vii) 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 terms of the Mortgage Loans, the
delivery of a portion of the Mortgage Files to the Custodian for the benefit of the
Purchaser, the sale of the Mortgage Loans to the Purchaser or the consummation of the
transactions contemplated by this Agreement, or if required, such consent, approval,
authorization or order has been obtained prior to the related Closing Date;
(viii) 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 in effect in any applicable
jurisdiction;
(ix) No 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 therein not misleading;
(x) The Seller is a member of MERS in good standing, and will comply in all material
respects with the rules and procedures of MERS in connection with the servicing of the MERS
Mortgage Loans for as long as such Mortgage Loans are registered with MERS;
(xi) The Seller has not used selection procedures that identified the Mortgage Loans as
being less desirable or valuable than other comparable mortgage loans in the Seller’s
portfolio at the Cut-off Date;
(xii) The Seller will treat the sale of the Mortgage Loans to the Purchaser as a sale
for reporting and accounting purposes and, to the extent appropriate, for federal income tax
purposes;
(xiii) The Seller acknowledges and agrees that the Servicing Fee represents reasonable
compensation for performing such services and that the entire Servicing Fee shall be treated
by the Seller, for accounting and tax purposes, as compensation for the servicing and
administration of the Mortgage Loans pursuant to this Agreement;
(xiv) With respect to the initial Closing Date and such other times as the Purchaser
may request, the Seller has delivered to the Purchaser financial statements as to its last
two complete fiscal years. All such financial statements fairly present the pertinent
results of operations and changes in financial position for each of such periods and the
financial position at the end of each such period of the Seller and it subsidiaries
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and have been prepared in accordance with GAAP consistently applied throughout the
periods involved, except as set forth in the notes thereto. There has been no change in the
business, operations, financial condition, properties or assets of the Seller since the date
of the Seller’s financial statements that would have a material adverse effect on its
ability to perform its obligations under this Agreement or the related Purchase Price and
Terms Letter; and
(xv) The Seller has not dealt with any broker, investment banker, agent or other person
that may be entitled to any commission or compensation in connection with the sale of the
Mortgage Loans.
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) The information contained in the Mortgage Loan Schedule and the related Information
Diskette is complete, true and correct;
(ii) All payments required to be made up to, and excluding, the related Cut-off Date
for such Mortgage Loan under the terms of the Mortgage Note have been made; the Seller has
not advanced funds, or induced, solicited or knowingly received any advance of funds from a
party other than the owner of the Mortgaged Property subject to the Mortgage, directly or
indirectly, for the payment of any amount required by the Mortgage Loan; and there has been
no more than one delinquency of more than thirty days in any payment by the Mortgagor
thereunder during the last twelve months and such delinquency did not exceed one payment;
(iii) 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) The terms of the Mortgage Note and the Mortgage have not been impaired, waived,
altered or modified in any respect, except by written instruments which have been recorded,
if necessary to protect the interests of the Purchaser, and which have been delivered to the
Purchaser or the Custodian. The substance of any such waiver, alteration or modification
has been approved by the primary mortgage guaranty insurer, if any, and by the title
insurer, to the extent required by the related policy and its terms are reflected on the
Mortgage Loan Schedule. No Mortgagor has been released, in whole or in part, except in
connection with an assumption agreement approved by the primary mortgage insurer, if any,
and title insurer, to the extent required by the policy, and which assumption agreement is
part of the Mortgage File and the terms of which are reflected in the Mortgage Loan
Schedule;
(v) 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
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operation of any of the terms of the Mortgage Note and 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; and the Mortgagor was not a debtor in any state or federal bankruptcy or
insolvency proceeding at the time the Mortgage Loan was originated;
(vi) All buildings upon the Mortgaged Property are insured by a Qualified Insurer
against loss by fire, hazards of extended coverage and such other hazards as are customary
in the area where the Mortgaged Property is located, pursuant to insurance policies
conforming to the requirements of the Seller’s Warranties and Servicing Agreement attached
hereto as Exhibit 9. All such insurance policies (collectively, the “hazard
insurance policy”) 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 in the Federal Register 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 either FNMA or
FHLMC. The Mortgage obligates the Mortgagor thereunder to maintain all such insurance at
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;
(vii) 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 or disclosure laws applicable to the Mortgage Loan have
been complied with;
(viii) The Mortgage has not been satisfied, canceled, subordinated, or rescinded, in
whole or in part, and the Mortgaged Property has not been released from the lien of the
Mortgage, in whole or in part, nor has any instrument been executed that would effect any
such release, cancellation, subordination or rescission;
(ix) The Mortgage is a valid, existing and enforceable first lien 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 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, and (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.
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
first lien and first
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priority security interest on the property described therein and the Seller has full
right to sell and assign the same to the Purchaser;
(x) 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,
except as the enforceability thereof may be limited by bankruptcy, insolvency, or
reorganization;
(xi) All other 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 human person or is otherwise an eligible borrower under FNMA’s Selling
Guide or FHLMC’s Selling Guide;
(xii) The proceeds of the Mortgage Loan have been fully disbursed and there is no
requirement for future advances thereunder and any and all requirements as to completion of
any on-site or off-site 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 were paid, and the Mortgagor is not entitled
to any refund of any amounts paid or due under the Mortgage Note or Mortgage;
(xiii) The Seller is the sole owner and holder of the Mortgage Loan. The Mortgage Loan
is not assigned or pledged, and the Seller has good and marketable title thereto and has
full right to transfer and sell the Mortgage Loan to the Purchaser free and clear of any
encumbrance, equity, lien, pledge, charge, claim or security interest and has full right and
authority subject to no interest or participation of, or agreement with, any other party, to
sell and assign each Mortgage Loan pursuant to this Agreement;
(xiv) All parties which have had any interest in the Mortgage, whether as mortgagee,
assignee, pledgee or otherwise, are (or, during the period in which they held and disposed
of such interest, were) (a) in compliance with any and all applicable licensing requirements
of the laws of the state wherein the Mortgaged Property is located, and (b) organized under
the laws of such state, or (c) qualified to do business in such state, or (d) a federal
savings and loan association or national bank having principal offices in such state, or (e)
not doing business in such state;
(xv) The Mortgage Loan is covered by an ALTA lender’s title insurance policy acceptable
to either FNMA or FHLMC, issued by a title insurer acceptable to either FNMA or FHLMC and
qualified to do business in the jurisdiction where the Mortgaged Property is located,
insuring (subject to the exceptions contained in (ix)(a) and (b) above) the Seller, its
successors and assigns as to the first priority lien of the Mortgage in the original
principal amount of the Mortgage Loan or, in the case of a NegAm Mortgage Loan, the
outstanding principal amount of such Mortgage Loan at any time such amount is greater than
the original principal amount thereof, and, in the case of an Adjustable Rate Mortgage Loan,
against any loss by reason of the invalidity or unenforceability of the lien resulting from
the provisions of the Mortgage Note and/or
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Mortgage providing for adjustment in the Mortgage Interest Rate and Monthly Payment.
Additionally, such lender’s title insurance policy affirmatively insures ingress and egress,
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;
(xvi) 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;
(xvii) 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;
(xviii) All improvements which were considered in determining the Appraised Value (as
defined in clause (i) of said definition) 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;
(xix) The Mortgage Loan was originated by the Seller or by a FNMA approved or FHLMC
approved mortgage banker (which mortgage banker is a mortgagee approved by HUD), or 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 another mortgagee approved
by the Secretary of HUD pursuant to Sections 203 and 211 of the National Housing Act.
Scheduled payments on the Mortgage Loan commenced no more than sixty (60) days after funds
were disbursed in connection with the Mortgage Loan. The Mortgage Note is payable on the
first day of each month in monthly installments of principal and interest, with interest in
arrears, and requires Monthly Payments sufficient to amortize the original principal balance
(a) with respect to each Adjustable Rate Mortgage Loan, over a term of thirty (30) years,
and (b) with respect to each Fixed Rate Mortgage Loan, over a term of either fifteen (15) or
thirty (30) years; provided, however, in the case of a Balloon Mortgage Loan, the Mortgage
Loan matures after seven years requiring a final payment of the outstanding principal prior
to full amortization. With respect to each Adjustable Rate Mortgage Loan other than a NegAm
Mortgage Loan, there is no negative amortization. Each Convertible Mortgage Loan contains a
provision whereby the Mortgagor is permitted to convert the Mortgage Loan to a fixed rate
mortgage loan in accordance with the terms of the related Mortgage Note;
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(xx) The origination, servicing and collection practices used by the Seller with
respect to each Mortgage Note and Mortgage have been in all respects legal, proper, prudent
and customary in the mortgage origination and servicing business. With respect to escrow
deposits and Escrow Payments, 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. With respect to Adjustable Rate Mortgage Loans, all
Mortgage Interest Rate adjustments have been made in strict compliance with state and
federal law and the terms of the related Mortgage Note. Any interest required to be paid
pursuant to state and local law has been properly paid and credited;
(xxi) The Mortgaged Property is free of damage and waste and there is no proceeding
pending for the total or partial condemnation thereof;
(xxii) The Mortgage contains customary and enforceable provisions such as to render the
rights and remedies of the holder thereof adequate for the realization against the Mortgaged
Property of the benefits of the security provided thereby, including, (a) in the case of a
Mortgage designated as a deed of trust, by trustee’s sale, and (b) otherwise by judicial
foreclosure. There is no 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
or any similar federal, state or local laws or ordinances;
(xxiii) The Mortgage Loan was underwritten generally in accordance with the Seller’s
underwriting standards in effect at the time the Mortgage Loan was originated or acquired
and the underwriting guidelines described in the related Purchase Price and Terms Letter.
The Seller’s underwriting standards in effect as of the date of the initial Closing Date
have been delivered to Purchaser and are attached hereto as Exhibit 10;
(xxiv) The Mortgage Note is not and has not been secured by any collateral except the
lien of the corresponding Mortgage and the security interest of any applicable security
agreement or chattel mortgage referred to in (ix) above;
(xxv) The Mortgage File contains an appraisal of the related Mortgaged Property signed
prior to the approval of the Mortgage Loan application by an appraiser which meets the
minimum FNMA or FHLMC requisite qualifications for appraisers, duly appointed by the
originator, who had no interest, direct or indirect in the Mortgaged Property or in any loan
made on the security thereof, and whose compensation is not affected by the approval or
disapproval of the Mortgage Loan; the appraisal is in a form acceptable to FNMA or FHLMC,
with such riders as are acceptable to FNMA or FHLMC, as the case may be, and Title XI of
FIRREA and the regulations promulgated thereunder;
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(xxvi) 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) No Mortgage Loan contains a permanent “buydown” provision. No Adjustable Rate
Mortgage Loan contains a temporary “buydown” provision. With respect to any Fixed Rate
Mortgage Loan which contains a temporary “buydown” provision, the value of such buydown
funds does not exceed 6% of the Appraised Value of the Mortgaged Property securing such
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;
(xxviii) With respect to an Adjustable Rate Mortgage Loan or a Balloon Mortgage Loan,
the Mortgagor has executed one or more statements to the effect that the Mortgagor has
received all disclosure materials required by applicable law with respect to the making of
an adjustable rate mortgage loan or a fixed rate balloon payment mortgage loan, as the case
may be. The Seller shall maintain all such statements in the Mortgage File;
(xxix) No Mortgage Loan was made in connection with (a) the construction or
rehabilitation of a Mortgaged Property or (b) facilitating the trade-in or exchange of a
Mortgaged Property;
(xxx) 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, or adversely affect the value of the Mortgage Loan;
(xxxi) No Mortgage Loan has a Loan-to-Value Ratio at origination in excess of 95%.
Each such Mortgage Loan with an LTV at origination in excess of 80% is and will be subject
to a Primary Mortgage Insurance Policy, issued by a Qualified Insurer, which insures that
portion of the Mortgage Loan over 75% of the Appraised Value of the related Mortgaged
Property or, in the case of NegAm Mortgage Loans provides at least 25% coverage. All
provisions of such Primary Mortgage Insurance Policy have been and are being complied with,
such policy is in full force and effect, and all premiums due thereunder have been paid.
Any Mortgage subject to any such Primary Mortgage Insurance Policy obligates the Mortgagor
thereunder to maintain such insurance and to pay all premiums and charges in connection
therewith, except with respect to any Lender PMI Mortgage Loan. Except in connection with a
Lender PMI Mortgage Loan, the Mortgage Interest Rate for the Mortgage Loan is exclusive of
any such insurance premium;
(xxxii) At the origination date of the Mortgage Loan, the related Mortgaged Property
was lawfully occupied under applicable law. To the best of the
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Seller’s knowledge, after reasonable inquiry and investigation, the Mortgaged Property
is lawfully occupied under applicable law and all inspections, licenses and certificates
required to be made or issued with respect to all occupied portions of the Mortgaged
Property and, with respect to the use and occupancy of the same, including but not limited
to certificates of occupancy, have been made or obtained from the appropriate authorities;
(xxxiii) No action has been taken or failed to be taken, no event has occurred and no
state of facts exists or has existed on or prior to the Closing Date (whether or not known
to the Seller on or prior to such date) which has resulted or will result in an exclusion
from, denial of, or defense to coverage under any private mortgage insurance (including,
without limitation, any exclusions, denials or defenses which would limit or reduce the
availability of the timely payment of the full amount of the loss otherwise due thereunder
to the insured) whether arising out of actions, representations, errors, omissions,
negligence, or fraud of the Seller, the related Mortgagor or any party involved in the
application for such coverage, including the appraisal, plans and specifications and other
exhibits or documents submitted therewith to the insurer under such insurance policy, or for
any other reason under such coverage, but not including the failure of such insurer to pay
by reason of such insurer’s breach of such insurance policy or such insurer’s financial
inability to pay;
(xxxiv) The Assignment of Mortgage, is in recordable form and is acceptable for
recording under the laws of the jurisdiction in which the Mortgaged Property is located;
(xxxv) Any future 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.
The lien of the Mortgage securing the consolidated principal amount is expressly insured as
having first lien priority by a title insurance policy, an endorsement to the policy
insuring the mortgagee’s consolidated interest or by other title evidence acceptable to FNMA
or FHLMC. The consolidated principal amount does not exceed the original principal amount
of the Mortgage Loan;
(xxxvi) If the Mortgaged Property is a condominium unit or a planned unit development
(other than a de minimis planned unit development) such condominium or planned unit
development project meets the eligibility requirements for FNMA or FHLMC;
(xxxvii) The Mortgage Note and Mortgage are on forms acceptable to FNMA or FHLMC;
(xxxviii) The Mortgaged Property is located in the state indicated on the Mortgage Loan
Schedule, and consists of a single parcel of real property with a detached single family
residence erected thereon, or an individual condominium unit, or a 2-4 family dwelling or an
individual unit in a planned unit development as defined by FNMA, none of which is a mobile
home or manufactured dwelling;
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(xxxix) The Mortgage Note, the Mortgage, the Assignment of Mortgage and any other
documents required to be delivered with respect to each Mortgage Loan pursuant to the
Custodial Agreement, have been delivered to the Custodian all in compliance with the
specific requirements of the Custodial Agreement. With respect to each Mortgage Loan, the
Seller is in possession of a complete Mortgage File in compliance with Exhibit 5
hereto, except for such documents as have been delivered to the Custodian;
(xl) Except for a Mortgage Loan secured by Mortgaged Property located in the state of
Hawaii, no Mortgage Loan is secured by a Mortgage on a leasehold estate. With respect to
Mortgage Loans in the state of Hawaii that are secured by a leasehold estate, (i) the lease
is valid, in full force and effect, and conforms to all of FNMA’s requirements for leasehold
estates; (ii) all rents and other payments due under the lease have been paid; (iii) the
lessee is not in default under any provision of the lease; (iv) the term of the lease
exceeds the maturity date of the related Mortgage Loan by at least ten years; and (v) the
mortgagee under the Mortgage Loan is given notice and an opportunity to cure any defaults
under the lease;
(xli) The Mortgage contains an enforceable provision for the acceleration of the
payment of the unpaid principal balance of the Mortgage Loan in the event that the Mortgaged
Property is sold or transferred without the prior written consent of the mortgagee
thereunder;
(xlii) Except as set forth on the related Purchase Price and Terms Letter, interest on
each Mortgage Loan is calculated on the basis of a 360-day year consisting of twelve 30-day
months;
(xliii) No fraud error, omission, misrepresentation or similar occurrence with respect
to a Mortgage Loan was committed by the Seller in connection with the origination of the
Mortgage Loan. To the best of the Seller’s knowledge after reasonable inquiry, no fraud
error, omission, misrepresentation or similar occurrence with respect to a Mortgage Loan was
committed by any other person involved in the origination or servicing of the Mortgage Loan;
(xliv) Each Mortgage Loan constitutes a “qualified mortgage” under Section
860G(a)(3)(A) of the Code and Treasury Regulations Section 1.860G-2(a)(1);
(xlv) No Mortgage Loan is classified as a “high cost” mortgage loan under the Home
Ownership and Equity Protection Act of 1994, as amended, nor is any Mortgage Loan a “high
cost home,” “covered” (excluding home loans defined as “covered home loans” pursuant to the
New Jersey Home Ownership Security Act of 2002), “high risk home” or “predatory” loan under
any applicable state, federal or local law (or a similarly classified loan using different
terminology under a law imposing heightened regulatory scrutiny or additional legal
liability for residential mortgage loans having high interest rates, points and/or fees);
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(xlvi) No Mortgage Loan with a conforming principal balance, determined as of the date
of origination of such Mortgage Loan, that secures real property located in the State of
Georgia was originated or modified on or after October 1, 2002 and prior to March 7, 2003;
(xlvii) No Mortgagor was required to purchase any credit life, disability, accident or
health insurance product as a condition of obtaining the extension of credit. No Mortgagor
obtained a prepaid single premium credit life, disability, accident or health insurance
policy in connection with the origination of the Mortgage Loan.
(xlviii) As of the origination date of each Mortgage Loan subject to a prepayment
penalty, such prepayment penalty complied with all applicable laws and no Mortgage Loan
provides for the payment of a prepayment penalty beyond the five-year term following the
origination of the Mortgage Loan;
(xlix) The 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 Mortgagor credit files to Equifax, Experian, and Trans Union Credit
Information Company, on a monthly basis;
(l) As of the date of origination, no portion of the Mortgaged Property was used for
commercial purposes, and to the best of the Seller’s knowledge after reasonable inquiry and
investigation, since the date of origination no portion of the Mortgaged Property has been
used for commercial purposes;
(li) The Mortgagor was not a debtor in any state or federal bankruptcy or insolvency
proceeding at the time the Mortgage Loan was originated or as of the related Closing Date;
(lii) No Mortgage Loan was made in connection with the construction or rehabilitation
of a Mortgaged Property or facilitating the trade-in of a Mortgaged Property;
(liii) To the best of the Seller’s knowledge after reasonable inquiry and
investigation, there is no pending action or proceeding directly involving any Mortgaged
Property in which compliance with any environmental law, rule or regulation is an issue;
(liv) With respect to any Mortgage Loan which is a Texas Home Equity Loan, any and all
requirements of Section 50, Article XVI of the Texas Constitution applicable to Texas Home
Equity Loans which were in effect at the time of the origination of the Mortgage Loan have
been complied with;
(lv) With respect to any Mortgage Loan as to which an affidavit has been delivered to
the Purchaser certifying that the original Mortgage Note has been lost or destroyed and not
been replaced, if such Mortgage Loan is subsequently in default, the enforcement of such
Mortgage Loan will not be materially adversely affected by the absence of the original
Mortgage Note;
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(lvi) Except as disclosed on the related Mortgage Loan Schedule, 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. No Mortgage Loan had a combined loan-to-value ratio at origination
greater than 100%; and
(lvii) No Mortgage Loan was made to finance a cooperative.
Subsection 7.03 Representations and Warranties Respecting the Servicer.
The Servicer represents, warrants and covenants to the Purchaser that as of the Closing Date
or as of such date specifically provided herein:
(i) The Servicer is duly organized, validly existing and in good standing under the
laws of the State of Texas and is licensed and qualified to transact business in and is in
good standing under the laws of each state where a Mortgaged Property is located or is
otherwise exempt under applicable law from such licensing or qualification or is otherwise
not required under applicable law to effect such licensing or qualification and no demand
for such licensing or qualification has been made upon the Servicer by any state having
jurisdiction and in any event the Servicer is or will be in compliance with the laws of any
such state to the extent necessary to insure the enforceability of each Mortgage Loan and
the servicing of the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Servicer has the full power and authority to execute, deliver and perform, and
to enter into and consummate, all transactions contemplated by this Agreement. The Servicer
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 Servicer, enforceable against it in accordance with its terms except as the
enforceability thereof may be limited by bankruptcy, insolvency, or reorganization;
(iii) Neither the execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, nor the fulfillment of or compliance with the terms and
conditions of this Agreement, will conflict with or result in a breach of any of the terms,
conditions or provisions of the Servicer’s organizational documents or result in a material
breach of any legal restriction or any agreement or instrument to which the Servicer is now
a party or by which it is bound, or constitute a material default or result in an
acceleration under any of the foregoing, or result in the violation of any law, rule,
regulation, order, judgment or decree to which the Servicer or its property is subject or
impair the ability of the Purchaser to realize on the Mortgage Loans, or impair the value of
the Mortgage Loans;
(iv) The Servicer is an approved seller/servicer for either FNMA or FHLMC in good
standing and is a mortgagee approved by the Secretary of HUD. No event has occurred,
including but not limited to a change in insurance coverage, which
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would make the Servicer unable to comply with FNMA, FHLMC or HUD eligibility
requirements or which would require notification to FNMA, FHLMC or HUD;
(v) The Servicer 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;
(vi) There is no action, suit, proceeding, investigation or litigation pending or, to
the Servicer’s knowledge, threatened, which either in any one instance or in the aggregate,
if determined adversely to the Servicer would adversely affect the execution, delivery or
enforceability of this Agreement, or the ability of the Servicer to service the Mortgage
Loans hereunder in accordance with the terms hereof, or the Servicer’s ability to perform
its obligations under this Agreement;
(vii) No consent, approval, authorization or order of any court or governmental agency
or body is required for the execution, delivery and performance by the Servicer of or
compliance by the Servicer with this Agreement or the Mortgage Loans or the consummation of
the transactions contemplated by this Agreement, or if required, such consent, approval,
authorization or order has been obtained prior to the Closing Date;
(viii) The consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Servicer;
(ix) No written statement, report or other document prepared and furnished or to be
prepared and furnished by the Servicer 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 therein not misleading;
(x) The Servicer is a member of MERS in good standing, and will comply in all material
respects with the rules and procedures of MERS in connection with the servicing of the MERS
Mortgage Loans for as long as such Mortgage Loans are registered with MERS;
(xi) The Servicer acknowledges and agrees that the Servicing Fee represents reasonable
compensation for performing such services and that the entire Servicing Fee shall be treated
by the Servicer, for accounting and tax purposes, as compensation for the servicing and
administration of the Mortgage Loans pursuant to this Agreement; and
(xii) With respect to the initial Closing Date and such other times as the Purchaser
may request, the Servicer has delivered to the Purchaser financial statements as to its last
two complete fiscal years. All such financial statements fairly present the pertinent
results of operations and changes in financial position for each of such periods and the
financial position at the end of each such period of the Servicer and it subsidiaries and
have been prepared in accordance with GAAP consistently applied throughout the periods
involved, except as set forth in the notes thereto. There has been
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no change in the business, operations, financial condition, properties or assets of the
Servicer since the date of the Servicer’s financial statements that would have a material
adverse effect on its ability to perform its obligations under this Agreement.
Subsection 7.04 Remedies for Breach of Representations and Warranties.
It is understood and agreed that the representations and warranties set forth in Subsections
7.01, 7.02 and 7.03 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure
to the benefit of the Purchaser and any successor servicer to the Servicer, notwithstanding any
restrictive or qualified endorsement on any Mortgage Note or Assignment of Mortgage or the
examination or failure to examine any Mortgage File. Upon discovery by the Seller, the Servicer or
the Purchaser of a breach of any of the foregoing representations and warranties which materially
and adversely affects the value of one or more of the Mortgage Loans, which materially and
adversely affects the interests of the Purchaser in one or more of the Mortgage Loans or materially
and adversely affects the ability of the Servicer to service such Mortgage Loan in accordance with
the terms of this Agreement, the party discovering such breach shall give prompt written notice to
the other.
The Seller shall have a period of ninety (90) days from the earlier of its discovery of a
breach or the receipt by Seller of notice of such a breach within which to correct or cure such
breach. The Seller hereby covenants and agrees that if any such breach cannot be corrected or
cured within such ninety (90) day period, the Seller shall, at Purchaser’s option and not later
than ninety (90) days after its discovery or its receipt of notice of such breach, repurchase such
Mortgage Loan at the Repurchase Price. 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 ninety (90) 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.
However, if the breach shall involve a representation or warranty set forth in Subsection 7.02 and
the Seller discovers or receives notice of any such breach within one hundred and twenty (120) days
of the related Closing Date, the Seller may, with the consent of the Purchaser and provided that
the Seller has a Qualified Substitute Mortgage Loan (or Loans), 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 (i) any such substitution shall be effected not
later than one hundred and twenty (120) days after the related Closing Date and (ii) prior to any
substitution into a REMIC pass-through entity, upon reasonable request by the Purchaser, the Seller
shall provide the Purchaser with an Opinion of Counsel that the substitution of the applicable
Qualified Substitute Mortgage Loan will not affect the status of the pass-through entity as a
REMIC. If the Seller has no Qualified Substitute Mortgage Loan (or Purchaser does not consent to
such substitution), it shall repurchase the deficient Mortgage Loan. Any repurchase of a Mortgage
Loan(s) pursuant to the foregoing provisions of this Subsection 7.04 shall be accomplished by
remitting to the Servicer for deposit in the Custodial Account the amount of the Repurchase Price
for distribution to Purchaser on the next scheduled Remittance Date, after deducting therefrom any
amount received in respect of such repurchased Mortgage Loan or Loans and being held in the
Custodial Account for future distribution.
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At the time of repurchase or substitution, the Purchaser, the Seller and the Servicer shall
arrange for the reassignment of the Deleted Mortgage Loan to the Seller and the delivery to the
Seller of any documents held by the Purchaser or the Custodian relating to the Deleted Mortgage
Loan. The Servicing File shall also be released by the Servicer to the Seller for any Deleted
Mortgage Loan. In the event of a repurchase or substitution, the Seller shall, simultaneously with
such reassignment, give written notice to the Purchaser that such repurchase or substitution has
taken place, amend the related Mortgage Loan Schedule to reflect the withdrawal of the Deleted
Mortgage Loan from this Agreement, and in the case of substitution, identify a Qualified Substitute
Mortgage Loan (or Loans) and amend the related Mortgage Loan Schedule to reflect the addition of
such Qualified Substitute Mortgage Loan (or Loans) to this Agreement. In connection with any such
substitution, the Seller shall be deemed to have made as to each such Qualified Substitute Mortgage
Loan the representations and warranties set forth in this Agreement except that all such
representations and warranties set forth in this Agreement shall be deemed made as of the date of
such substitution. The Seller shall effect such substitution by delivering to the Custodian for
each such Qualified Substitute Mortgage Loan the documents required by the Custodial Agreement,
with the Mortgage Note endorsed thereon as required by the Custodial Agreement. The Seller shall
remit to the Servicer for deposit in the Custodial Account the Monthly Payment due on such
Qualified Substitute Mortgage Loan or Loans in the month following the date of such substitution.
Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the month of
substitution shall be retained by the Seller. For the month of substitution, distributions to
Purchaser shall include the Monthly Payment due on any 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.
For any month in which the Seller substitutes a Qualified Substitute Mortgage Loan (or Loans)
for a Deleted Mortgage Loan, the Seller shall determine the amount (if any) by which the aggregate
principal balance of all Qualified Substitute Mortgage Loans as of the date of substitution is less
than the aggregate Stated Principal Balance of all Deleted Mortgage Loans (after application of
scheduled principal payments due in the month of substitution). The amount of such shortfall shall
be remitted to the Servicer for distribution in the month of substitution pursuant to Subsection
11.04 hereof. Accordingly, on the date of such substitution, the Seller, from its own funds, shall
remit to the Servicer for deposit into the Custodial Account an amount equal to the amount of such
shortfall.
In addition to such repurchase or substitution obligation, the Seller shall indemnify the
Purchaser and any successor servicer to the Servicer and hold each of them 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 7.04 to cure, substitute for or repurchase a defective Mortgage
Loan and to indemnify the Purchaser and any successor servicer as provided in this Subsection 7.04
constitute the sole remedies of the Purchaser and any successor servicer respecting a breach of the
foregoing representations and warranties.
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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 the Servicer 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.
If pursuant to the foregoing provisions the Seller repurchases a Mortgage Loan that is a MERS
Mortgage Loan, the Seller shall either (i) cause MERS to execute and deliver an Assignment of
Mortgage in recordable form to transfer the Mortgage from MERS to the Seller and shall cause such
Mortgage to be removed from registration on the MERS System in accordance with MERS’ rules and
regulations or (ii) cause MERS to designate on the MERS System the Seller or its designee as the
beneficial holder of such Mortgage Loan.
Subsection 7.05 Repurchase of Converted Mortgage Loans.
In the event a Mortgagor exercises the option to convert a Convertible Mortgage Loan to a
fixed rate mortgage loan in accordance with the terms of the related Mortgage Note, the Seller
shall repurchase such Convertible Mortgage Loan within thirty (30) days of such conversion taking
effect, and the Seller shall provide prior notice of such repurchase to the Purchaser or its
designee, at a price equal to 100% of the unpaid principal balance of such Convertible Mortgage
Loan at the time of such conversion plus interest due and payable through the last day of the month
of repurchase at the Mortgage Loan Remittance Rate, provided, however, no interest for the month of
repurchase shall be due and payable if a Convertible Mortgage Loan is repurchased on the first day
of a month. Any repurchase of a Convertible Mortgage Loan pursuant to the foregoing provisions of
this Subsection 7.05 shall be accomplished by remitting the amount of such repurchase price to the
Servicer for deposit in the Custodial Account for distribution to the Purchaser on the next
scheduled Remittance Date.
Subsection 7.06 Covenant of the Seller.
With respect to any MERS Mortgage Loan, on or immediately following the related Closing Date,
Seller shall comply with all rules and procedures of MERS in connection with registering Purchaser
as the beneficial owner of such Mortgage Loan on the MERS System.
SECTION 8. Closing.
The closing for each Mortgage Loan Package shall take place on the related Closing Date. The
Closing shall be either: by telephone, confirmed by letter or wire as the parties shall agree, or
conducted in person, at such place as the parties shall agree.
The closing for the Mortgage Loans to be purchased on each Closing Date shall be subject to
each of the following conditions:
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a) |
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all of the representations and warranties of the Seller and the
Servicer under this Agreement shall be true and correct as of the related
Closing Date and no event shall have occurred which, with notice or the passage
of time, would constitute a default under this Agreement; |
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b) |
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the Purchaser shall have received, or the Purchaser’s attorneys
shall have received in escrow, all Closing Documents as specified in Section 9
of this Agreement, in such forms as are agreed upon and acceptable to the
Purchaser, duly executed by all signatories other than the Purchaser as
required pursuant to the terms hereof; |
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c) |
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the Seller shall have delivered and released to the Custodian
all documents required pursuant to the Custodial Agreement; and |
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d) |
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all other terms and conditions of this Agreement shall have
been complied with. |
Subject to the foregoing conditions, the Purchaser shall pay to the Seller on the related
Closing Date the Purchase Price, plus accrued interest pursuant to Section 4 of this Agreement, by
wire transfer of immediately available funds to the account designated by the Seller on or before
the Funding Deadline.
SECTION 9. Closing Documents.
The Closing Documents to be delivered on each Closing Date (unless otherwise specified below)
in respect of the Mortgage Loans to be purchased on such Closing Date shall consist of the
following documents (which shall be fully executed originals as applicable):
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1. |
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this Agreement, in four (4) counterparts (to be executed and
delivered only for the initial Closing Date); |
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2. |
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the related Information Diskette provided by the Seller, all
other information agreed to be provided to the Purchaser by the Seller herein
or in the related Purchase Price and Terms Letter and the related Mortgage Loan
Schedule prepared in accordance with Section 3, with a copy of the latter to be
delivered to the Custodian for purposes of the Custodial Agreement; |
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3. |
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a Custodian’s Initial Certification, as required under the
Custodial Agreement, in the form of Exhibit 6-1 to the Custodial
Agreement; |
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4. |
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a Custodial Account Letter Agreement in the form attached as
Exhibit 7 hereto (to be executed and delivered only for the initial
Closing Date); |
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5. |
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an Escrow Account Letter Agreement in the form attached as
Exhibit 8 hereto (to be executed and delivered only for the initial
Closing Date); |
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6. |
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an Officer’s Certificate, in the form of Exhibit 1
hereto, including all attachments hereto (to be executed and delivered for the
initial Closing Date and on each subsequent Closing Date upon the request of
Purchaser and with reasonable notice prior to such Closing Date); |
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7. |
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Opinion of Counsel of the Seller (who may be an employee of the
Seller), in the form of Exhibit 2 hereto to be executed and delivered
for the initial Closing Date and on each subsequent Closing Date upon the
request of Purchaser and with reasonable notice prior to such Closing Date;
provided, however, in no event shall Seller be required to deliver an Opinion
of Counsel more frequently than once every six (6) months; |
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8. |
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a Security Release Certification, in the form of Exhibit
3 hereto executed by any person having the benefit of any security
interest, pledge or hypothecation in relation to the Mortgage Loans, if any of
the Mortgage Loans have at any time been subject to any security interest,
pledge or hypothecation for the benefit of such person; |
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9. |
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with respect to any Closing Date to which applicable, a
certificate or other evidence or 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; |
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10. |
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the Seller’s underwriting guidelines (to be delivered for the
initial Closing Date and to be updated by the Seller (i) promptly upon any
material change thereto and in any event no less frequently than once every six
(6) months); and |
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11. |
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an Assignment and Conveyance in the form of Exhibit 4
hereto. |
SECTION 10. Costs.
Unless otherwise provided in the related Purchase Price and Terms Letter, the Purchaser shall
pay any commissions due its salesmen, the legal fees and expenses of its attorneys, custodial fees
and reasonable out-of-pocket costs of the Seller in connection with any Reconstitution Agreement
pursuant to Section 29 hereof. All other costs and expenses incurred in connection with the
transfer and delivery of the Mortgage Loans, including without limitation, fees for title policy
endorsements, the initial recordation of Assignments of Mortgage (other than with respect to MERS
Mortgage Loans) and continuations, and the Seller’s and Servicer’s attorney’s fees, shall be paid
by the Seller.
SECTION 11. Servicer’s Servicing Obligations.
The Servicer shall service and administer the Mortgage Loans in accordance with the terms and
provisions set forth in the Servicing Addendum attached as Exhibit 9; which Servicing
Addendum is hereby incorporated in this Agreement in its entirety as if the same were contained in
this Section 11.
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SECTION 12. Removal of Mortgage Loans from Inclusion Under this Agreement Upon a
Whole Loan Transfer or a Pass-Through Transfer on One or More Reconstitution
Dates. |
The Seller, the Servicer and the Purchaser agree that with respect to some or all of the
Mortgage Loans, the Purchaser may effect one or more Whole Loan Transfers and/or one or more
Pass-Through Transfers. In connection with a Whole Loan Transfer and/or Pass-Through Transfer, the
related Reconstitution Agreement shall provide that no more than four (4) Persons at any one time
shall have the status of “Purchaser” with regard to any Mortgage Loan Package (unless otherwise
agreed to by the Servicer and the Purchaser); provided that any trust to which Mortgage Loans may
be transferred shall constitute a single “Purchaser.”
With respect to each Whole Loan Transfer or Pass-Through Transfer, as the case may be, entered
into by the Purchaser, the Seller and the Servicer each agrees, to the extent applicable:
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(1) |
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to cooperate fully with the Purchaser and any prospective
purchaser with respect to all reasonable requests and due diligence procedures
and providing information contained in the Mortgage Loan Schedule including any
diskette or other related data tapes provided as reasonably requested by such
purchasers; |
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(2) |
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to execute all Reconstitution Agreements provided that each of
the Servicer 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 herein and provided further that such Reconstitution
Agreement does not materially diminish the Servicer’s rights or materially
increase Servicer’s responsibilities under this Agreement; |
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(3) |
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with respect to any Mortgage Loan that is subject to a Whole
Loan Transfer or a Pass-Through Transfer (a) the Seller shall make the
representations and warranties regarding such Mortgage Loan contained herein
only as of the related Closing Date, and (b) the Servicer shall restate the
representations and warranties regarding the Servicer set forth in Subsection
7.03 as of the date of such Whole Loan Transfer or Pass-Through Transfer; |
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(4) |
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to deliver to the Purchaser for inclusion in any prospectus or
other offering material such publicly available information regarding the
Servicer, its financial condition and its most recently publicly disclosed
mortgage loan delinquency, foreclosure and loss experience as shall be
reasonably requested by the Purchaser, and to deliver to the Purchaser any
non-public, unaudited financial information regarding the Mortgage Loans as
shall be reasonably requested by the Purchaser, in which case the Purchaser,
unless otherwise mutually agreed, shall bear the cost of having such
information audited by certified public accountants if the Purchaser desires
such an |
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audit; provided that in connection with inclusion of any information
provided by the Servicer pursuant to this clause 4 in any prospectus
supplement or other offering document, the Servicer and the Purchaser shall
enter into a customary indemnity agreement, which shall provide that (A) the
Servicer shall indemnify the Purchaser and certain affiliates of the
Purchaser against losses they may sustain in any way related to any
information provided by the Servicer regarding the Servicer or the
Servicer’s servicing practices set forth in any offering document prepared
in connection with such Reconstitution and (B) the Purchaser shall indemnify
the Servicer and certain affiliates of the Servicer against any losses they
may sustain in any way related to any information in any offering document,
other than information provided by the Servicer specifically for use
therein, prepared in connection with such Reconstitution; |
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(5) |
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to deliver to the Purchaser and to any Person designated by the
Purchaser, at the Purchaser’s expense, such statements and audit letters of
reputable, certified public accountants pertaining to information provided by
the Seller pursuant to clause 4 above as shall be reasonably requested by the
Purchaser; |
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(6) |
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to deliver to the Purchaser, and to any Person designated by
the Purchaser, such in-house opinions of counsel as are customarily delivered
by originators or servicers of mortgage loans, as the case may be, in
connection with Whole Loan Transfers or Pass-Through Transfers, as the case may
be, it being understood that the cost of any opinions of outside special
counsel that may be required for a Whole Loan Transfer or Pass-Through
Transfer, as the case may be, shall be the responsibility of the Purchaser; and |
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(7) |
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to reasonably cooperate with the Purchaser and any prospective
purchaser with respect to the preparation of Mortgage Loan Documents and such
other documents, and with respect to the servicing of the Mortgage Loans in
accordance with the requirements from time to time of the rating agencies
rating a Whole Loan Transfer or Pass-Through Transfer, the credit enhancers
providing credit enhancement thereon and the requirements of the Purchaser’s
shelf registration statement. |
All Mortgage Loans not sold or transferred pursuant to a Whole Loan Transfer or Pass-Through
Transfer shall be subject to this Agreement and shall continue to be serviced in accordance with
the terms of this Agreement and with respect thereto this Agreement shall remain in full force and
effect. In connection with the sale or transfer of any MERS Mortgage Loan, the Seller shall cause
MERS to designate on the MERS System the assignee (or the related trust, for the benefit of the
related certificateholders) or its designee as the beneficial holder of such Mortgage Loan.
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With respect to any Mortgage Loans sold in a Pass-Through Transfer where the Servicer is a
servicer, the Servicer agrees that on or before March 15th of each year beginning March
15, 2005, the Servicer shall deliver to the Person responsible for filing a Form 10-K with the
Securities and Exchange Commission with respect to the related trust a certification in the form
attached as Exhibit 11 hereto, executed by the senior officer in charge of servicing at the
Servicer. The Servicer shall indemnify and hold harmless such Person and its officers, directors
and Affiliates, from and against any losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments and other costs and expenses arising out of or
based upon any breach of the Servicer’s obligations under this paragraph or any material
misstatement or omission, negligence, bad faith or willful misconduct of the Servicer in connection
therewith. If the indemnification provided for in the preceding sentence is unavailable or
insufficient to hold harmless any indemnified party, then the Servicer agrees that it shall
contribute to the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities of such indemnified party in such proportion as is appropriate to
reflect the relative fault of such indemnified party, on the one hand, and the Servicer, on the
other, in connection with a breach of the Servicer’s obligations under this paragraph or any
material misstatement or omission, negligence, bad faith or willful misconduct of the Servicer in
connection therewith.
SECTION 13. The Seller and the Servicer.
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Subsection 13.01 Additional Indemnification by the Seller and the Servicer;
Third Party Claims. |
(i) The Seller shall indemnify the Purchaser and hold it harmless against any and all
claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees
and related costs, judgments, and any other costs, fees and expenses that the Purchaser may
sustain in any way related to the failure of the Seller to perform its duties in strict
compliance with the terms of this Agreement or any Reconstitution Agreement entered into
pursuant to Section 12 (to the extent applicable). Each party to this Agreement shall
immediately notify the others if a claim is made upon such party by a third party with
respect to this Agreement, any Reconstitution Agreement or the Mortgage Loans. Upon the
prior written consent of Purchaser, which consent shall not be unreasonably withheld, the
Seller shall assume the defense of any such claim and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or
decree which may be entered against it or the Purchaser in respect of such claim. The
Purchaser promptly shall reimburse the Seller for all amounts advanced by it pursuant to the
preceding sentence except when the claim is in any way related to the Seller’s
indemnification obligations pursuant to Section 7 or this Section 13.
(ii) The Servicer shall indemnify the Purchaser and hold it harmless against any and
all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments, and any other costs, fees and expenses that the Purchaser
may sustain in any way related to a breach of any of the Servicer’s representations and
warranties under Subsection 7.03 or the failure of the Seller to perform its duties in
strict compliance with the terms of this Agreement or any
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Reconstitution Agreement entered into pursuant to Section 12. Each party to this
Agreement shall immediately notify the others if a claim is made upon such party by a third
party with respect to this Agreement, any Reconstitution Agreement or the Mortgage Loans.
Upon the prior written consent of Purchaser, which consent shall not be unreasonably
withheld, the Servicer shall assume the defense of any such claim and pay all expenses in
connection therewith, including counsel fees, and promptly pay, discharge and satisfy any
judgment or decree which may be entered against it or the Purchaser in respect of such
claim. The Purchaser promptly shall reimburse the Servicer for all amounts advanced by it
pursuant to the preceding sentence except when the claim is in any way related to the
Servicer’s indemnification obligations pursuant to this Section 13; or the failure of the
Servicer to service and administer the Mortgage Loans in strict compliance with the terms of
this Agreement or any Reconstitution Agreement.
(iii) Notwithstanding anything herein to the contrary, neither the Seller nor the
Servicer shall have any liability hereunder for any claims, losses, damages, penalties,
fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and
any other costs, fees and expenses that the Purchaser may sustain directly related to (A)
the failure of the Purchaser to forward to the Seller or the Servicer, as applicable,
notices of claims, as to which neither the Seller nor Servicer has any knowledge, regarding
Mortgage Loans recorded in the name of the Purchaser and (B) the failure of the Custodian to
perform its obligations under the Custodial Agreement, but solely to the extent that such
failure materially adversely affects the ability of the Servicer to service the Mortgage
Loans in accordance with the terms of this Agreement.
(iv) The Purchaser shall indemnify the Servicer and hold the Servicer 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
Servicer may sustain in any way related to the failure of the Custodian to deliver to the
Servicer any Mortgage Loan Document requested by the Servicer in accordance with the terms
of this Agreement and the Custodial Agreement. The Servicer shall immediately notify the
Purchaser if a claim is made upon the Servicer by a third party with respect to such failure
of the Custodian. The Purchaser shall assume the defense of any such claim and pay all
expenses in connection therewith, including counsel fees, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or the Servicer in respect of
such claim.
Subsection 13.02 Merger or Consolidation of the Servicer.
The Servicer will keep in full effect its existence, rights and franchises as a entity
organized under the laws of the state of its organization except as permitted herein, and will
obtain and preserve its qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and enforceability of this
Agreement, or any of the Mortgage Loans and to perform its duties under this Agreement.
Any Person into which the Servicer may be merged or consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Servicer shall be a party, or any Person
succeeding to the business of the Servicer, shall be the successor of the
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Servicer hereunder, without the execution or filing of any paper or any further act on the
part of any of the parties hereto, anything herein to the contrary notwithstanding; provided,
however, that the successor or surviving Person shall be an institution whose deposits are insured
by FDIC or a company whose business is the origination and servicing of mortgage loans, unless
otherwise consented to by the Purchaser, which consent shall not be unreasonably withheld, shall be
qualified to service mortgage loans on behalf of FNMA or FHLMC, shall have a GAAP net worth of not
less than $25,000,000 and shall satisfy the requirements of Section 16 with respect to the
qualifications of a successor to the Servicer (and shall otherwise comply with the requirements of
Section 16).
Subsection 13.03 Limitation on Liability of the Seller, the Servicer and Others.
None of the Seller, the Servicer nor any of the officers, employees or agents of either shall
be under any liability to the Purchaser for any action taken or for refraining from the taking of
any action in good faith pursuant to this Agreement, or for errors in judgment; provided, however,
that this provision shall not protect the Seller, the Servicer 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, the Servicer and any officer, employee or agent of the Seller or the Servicer 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 Servicer shall not be under any obligation to appear
in, prosecute or defend any legal action which is not incidental to its duties to service the
Mortgage Loans in accordance with this Agreement and which in its opinion may involve it in any
expenses or liability; provided, however, that the Servicer 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 reasonable legal expenses and
costs of such action and any liability resulting therefrom shall be expenses, costs and liabilities
for which the Purchaser will be liable and the Servicer shall be entitled to be reimbursed therefor
from the Purchaser upon written demand.
Subsection 13.04 Seller Not to Resign.
The Servicer shall not assign this Agreement or resign from the obligations and duties hereby
imposed on it except by mutual consent of the Servicer and the Purchaser or upon the determination
that its duties hereunder are no longer permissible under applicable law and such incapacity cannot
be cured by the Servicer. Any such determination permitting the resignation of the 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. No such resignation shall
become effective until a successor shall have assumed the Servicer’s responsibilities and
obligations hereunder in the manner provided in Section 16.
Subsection 13.05 No Transfer of Servicing.
With respect to the retention of the Servicer to service the Mortgage Loans hereunder, the
Servicer acknowledges that the Purchaser has acted in reliance upon the Servicer’s independent
status, the adequacy of its servicing facilities, plan, personnel, records
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and procedures, its integrity, reputation and financial standing and the continuance thereof.
Without in any way limiting the generality of this Section, Servicer shall not either assign this
Agreement or the servicing hereunder or delegate a substantial portion of its rights or duties
hereunder, 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; provided, however, the Servicer may, with prior notice but without
Purchaser’s consent, assign its rights and obligations as servicer hereunder to an entity if (i)
such entity is directly or indirectly owned or controlled by the Servicer, (ii) such entity shall
be qualified to service mortgage loans on behalf of FNMA or FHLMC and shall satisfy the
requirements of Section 16 with respect to the qualifications of a successor to the Servicer (and
shall otherwise comply with the requirements of Section 16), (iii) shall have a GAAP net worth of
not less than $25,000,000 and (iv) the Servicer guaranties the performance by such entity of all
obligations hereunder; provided further, that, with respect to any Mortgage Loan subject to
a Pass-Through Transfer, the Servicer shall not resign from the obligations and duties hereby
imposed on it except upon determination that its duties hereunder are no longer permissible under
applicable law. Any such determination permitting the resignation of the Servicer shall be
evidenced by an Opinion of Counsel of the Servicer to such effect obtained at the expense of the
Servicer and delivered to the related trustee or master servicer.
Without in any way limiting the generality of this Subsection 13.05, in the event that the
Servicer either shall assign this Agreement or the servicing responsibilities hereunder or delegate
its duties hereunder or any portion thereof without the prior written consent of the Purchaser,
then the Purchaser shall have the right to terminate this Agreement as set forth in Subsection
15.02, without any payment of any penalty or damages and without any liability whatsoever to the
Servicer (other than with respect to accrued but unpaid Monthly Advances, Servicing Advances and
Servicing Fees remaining unpaid) or any third party.
SECTION 14. Default.
Subsection 14.01 Events of Default.
In case one or more of the following Events of Default by the Servicer shall occur and be
continuing:
(i) any failure by the Servicer to remit to the Purchaser any payment required to be
made under the terms of this Agreement which continues unremedied for a period of two (2)
Business Days after the date upon which written notice of such failure, requiring the same
to be remedied, shall have been given to the Servicer by the Purchaser; or
(ii) failure on the part of the Servicer duly to observe or perform in any material
respect any other of the covenants or agreements on the part of the Servicer set forth in
this Agreement which continues unremedied for a period of thirty (30) days (except that such
number of days shall be fifteen (15) 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 Servicer by the Purchaser or by the Custodian; or
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(iii) a decree or order of a court or agency or supervisory authority having
jurisdiction for the appointment of a conservator or receiver or liquidator in any
insolvency, bankruptcy, readjustment of debt, marshalling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs, shall have been
entered against the Servicer and such decree or order shall have remained in force
undischarged or unstayed for a period of sixty (60) days; or
(iv) the Servicer 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 Servicer or of or relating to all
or substantially all of its property; or
(v) the Servicer shall admit in writing its inability to pay its debts generally as
they become due, file a petition to take advantage of any applicable insolvency or
reorganization statute, make an assignment for the benefit of its creditors, or voluntarily
suspend payment of its obligations; or
(vi) failure by the Servicer to maintain its license to do business or service
residential mortgage loans in any jurisdiction where the Mortgaged Properties are located
which failure continues unremedied for a period of thirty (30) days; or
(vii) the Servicer ceases to meet the qualifications of a FNMA or FHLMC seller/servicer
and the failure to meet such qualifications continues unremedied for a period of thirty (30)
days; or
(viii) the Servicer 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 a substantial portion
of its duties hereunder;
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 Servicer 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 Servicer under this Agreement and in
and to the Mortgage Loans and the proceeds thereof. On or after the receipt by the Servicer of
such written notice, all authority and power of the Servicer under this Agreement, whether with
respect to the Mortgage Loans or otherwise, shall pass to and be vested in the successor appointed
pursuant to Section 16. Upon written request from the Purchaser, the Servicer shall prepare,
execute and deliver any and all documents and other instruments, place in such successor’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
Servicer’s sole expense. The Servicer agrees to cooperate with the Purchaser and such successor in
effecting the termination of the Servicer’s responsibilities and rights hereunder, including,
without limitation, the transfer to such successor for administration by it of all cash amounts
which shall at the time be credited by the Servicer to the
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Custodial Account, REO Account or Escrow Account or thereafter received with respect to the
Mortgage Loans.
Subsection 14.02 Waiver of Defaults.
The Purchaser may waive any default by the Servicer 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 15. Termination.
Subsection 15.01 Termination.
The respective obligations and responsibilities of the Servicer shall terminate upon: (i) the
later of the final payment or other liquidation (or any advance with respect thereto) of the last
Mortgage Loan or the disposition of all REO Property and the remittance of all funds due hereunder;
or (ii) by mutual consent of the Servicer and the Purchaser in writing.
Subsection 15.02 Termination Without Cause.
The Purchaser may, at its sole option, terminate any rights the Servicer may have hereunder,
without cause, upon written notice. Any such notice of termination shall be in writing and
delivered to the Servicer as provided in Section 16 of this Agreement. In the event of such
termination, the Servicer shall be entitled to the Termination Fee.
SECTION 16. Successor to the Servicer.
Prior to termination of Servicer’s responsibilities and duties under this Agreement pursuant
to Subsection 15.01(ii) or 15.02, the Purchaser shall (i) succeed to and assume all of the
Servicer’s responsibilities, rights, duties and obligations under this Agreement, or (ii) appoint a
successor having a GAAP net worth of not less than $25,000,000 and which shall succeed to all
rights and assume all of the responsibilities, duties and liabilities of the Servicer under this
Agreement prior to the termination of Servicer’s responsibilities, duties and liabilities under
this Agreement. In connection with such appointment and assumption, the Purchaser may make such
arrangements for the compensation of such successor out of payments on Mortgage Loans as it and
such successor shall agree. In the event that the Servicer’s duties, responsibilities and
liabilities under this Agreement should be terminated pursuant to the aforementioned Sections, the
Servicer shall discharge such duties and responsibilities during the period from the date it
acquires knowledge of such termination until the effective date thereof with the same degree of
diligence and prudence which it is obligated to exercise under this Agreement, and shall take no
action whatsoever that might impair or prejudice the rights or financial condition of its
successor. The resignation or removal of Servicer pursuant to the aforementioned Sections shall
not become effective until a successor shall be appointed pursuant to this Section and shall in no
event relieve the Servicer of the representations and warranties made pursuant to Subsection 7.03
and the remedies available to the Purchaser under Subsection 13.01(ii), it being understood and
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agreed that the provisions of such Subsections 7.03 and 13.01 shall be applicable to the
Servicer notwithstanding any such resignation or termination of the Servicer, or the termination of
this Agreement.
Any successor appointed as provided herein shall execute, acknowledge and deliver to the
Servicer 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 Servicer, with like effect as if originally named as a party to this Agreement.
In connection with any such resignation or removal of Servicer, either (i) the successor shall
represent and warrant that it is a member of MERS in good standing and shall agree to comply in all
material respects with the rules and procedures of MERS in connection with the servicing of the
Mortgage Loans that are registered with MERS, or (ii) the Servicer shall cooperate with such
successor in causing MERS to execute and deliver an Assignment of Mortgage in recordable form to
transfer the Mortgage from MERS to the Purchaser and to execute and deliver such other notices,
documents and other instruments as may be necessary or desirable to effect a transfer of such
Mortgage Loan or servicing of such Mortgage Loan on the MERS System to the successor servicer. The
Servicer shall file or cause to be filed any such assignment in the appropriate recording office.
The successor servicer shall cause such assignment to be delivered to the Custodian promptly upon
receipt of the original with evidence of recording thereon or a copy certified by the public
recording office in which such assignment was recorded. Any termination of this Agreement pursuant
to Subsection 13.04, 14.01, 15.01, or 15.02 shall not affect any claims that the Purchaser may have
against the Servicer arising prior to any such termination or resignation.
The Servicer 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 Servicer shall account for all funds. The Servicer 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 Servicer. The successor shall make arrangements at the time of
transfer of the servicing responsibilities to the successor servicer to reimburse the Servicer for
amounts the Servicer actually expended pursuant to this Agreement (provided that the Servicer shall
provide the successor servicer with written evidence of such amounts) which the successor is
entitled to retain hereunder and which would otherwise have been recovered by the Servicer pursuant
to this Agreement but for the appointment of the successor servicer.
Upon a successor’s acceptance of appointment as such, the Servicer shall notify by mail the
Purchaser of such appointment.
SECTION 17. Financial Statements.
The Servicer understands that in connection with the Purchaser’s marketing of the Mortgage
Loans, the Purchaser shall make available to prospective purchasers a Consolidated Statement of
Operations of the Servicer’s parent company, Countrywide Financial Corporation (“CFC”) for the most
recently completed three (3) fiscal years respecting which such a statement is available, as well
as a Consolidated Statement of Condition of CFC at the end of the last two
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(2) fiscal years covered by such Consolidated Statement of Operations. The Servicer shall
also make available any comparable interim statements to the extent any such statements have been
prepared by the Servicer (and are available upon request to members or stockholders of the Servicer
or the public at large). The Servicer, if it has not already done so, agrees to furnish promptly
to the Purchaser, upon request, copies of the statements specified above. The Servicer shall also
make available information on its servicing performance with respect to loans serviced for others,
including delinquency ratios.
The Servicer also agrees to make available upon reasonable notice and during normal business
hours to any prospective purchaser a knowledgeable financial or accounting officer for the purpose
of answering questions respecting recent developments affecting, directly or indirectly, the
Servicer’s ability to perform under this Agreement and to permit any prospective purchaser upon
reasonable notice and during normal business hours to inspect the Servicer’s servicing facilities
for the purpose of satisfying such prospective purchaser that the Servicer has the ability to
service the Mortgage Loans in accordance with this Agreement.
SECTION 18. Reserved.
SECTION 19. 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, postage prepaid, and return
receipt requested, or, if by other means, when received by the other party or parties at the
address as follows:
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(i)
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if to the Seller: |
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Countrywide Home Loans, Inc. |
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0000 Xxxx Xxxxxxx, |
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Xxxxxxxxx, Xxxxxxxxxx 00000 |
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Attn: Xxxxx Xxxxxxx |
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(ii)
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if to the Servicer: |
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Countrywide Home Loans Servicing LP |
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000 Xxxxxxxxxxx Xxx |
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Xxxx Xxxxxx, Xxxxxxxxxx 00000 |
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Attn: Xxxx Xxxxxxx |
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(iii)
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if to the Purchaser: |
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DLJ Mortgage Capital, Inc. |
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00 Xxxxxxx Xxxxxx |
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Xxx Xxxx, Xxx Xxxx 00000 |
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Attn: Xxxxx Xxxx |
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or such other address as may hereafter be furnished to the other parties 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 20. 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 21. 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 22. Governing Law.
The Agreement shall be construed in accordance with the laws of the State of
New York and the
obligations, rights and remedies of the parties hereunder shall be determined in accordance with
the laws of the State of
New York, except to the extent preempted by Federal law.
SECTION 23. Intention of the Parties.
It is the intention of the parties that the 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 Purchaser shall have the
right to review the Mortgage Loans and the related Mortgage 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 and the Servicer shall cooperate with all reasonable requests made by the
Purchaser in the course of such review.
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SECTION 24. Successors and Assigns; Assignment of Purchase Agreement.
This Agreement shall bind and inure to the benefit of and be enforceable by the Seller, the
Servicer and the Purchaser and the respective permitted successors and assigns of the Seller, the
Servicer and the Purchaser. This Agreement shall not be assigned, pledged or hypothecated by the
Seller or the Servicer to a third party without the consent of the Purchaser. This Agreement may
be assigned, pledged or hypothecated by the Purchaser without the consent of the Seller or the
Servicer and any assignee of the Purchaser will become the “Purchaser” hereunder.
SECTION 25. 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 26. Exhibits.
The exhibits to this Agreement are hereby incorporated and made a part hereof and are an
integral part of this Agreement.
SECTION 27. General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly provided or unless the context
otherwise requires:
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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; |
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accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles; |
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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
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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
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the words “herein,” “hereof,” “hereunder” and other words of
similar import refer to this Agreement as a whole and not to any particular
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the term “include” or “including” shall mean without limitation
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SECTION 28. 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. The Purchaser, upon
request of the Seller or the Servicer, shall use its best efforts to deliver, or cause to be
delivered, a computer disk containing this Agreement to the Seller or the Servicer if such disk is
readily accessible to the Purchaser or its counsel.
SECTION 29. Further Agreements.
The Seller, the Servicer 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 and the Servicer shall cooperate
with the Purchaser in connection with any Whole Loan Transfer or Pass-Through Transfer contemplated
by the Purchaser pursuant to Section 12 hereof. In that connection, the Servicer shall (a) execute
any Reconstitution Agreement in accordance with the provisions of Section 12, and (b) provide to
the 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 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
Servicer as are reasonably believed necessary by the Purchaser in connection with such
transactions. The requirement of the Servicer pursuant to (ii) above shall terminate on the final
Reconstitution Date. Prior to incurring any out-of-pocket expenses pursuant to this paragraph, the
Servicer, as applicable, shall notify the Purchaser in writing of the estimated amount of such
expense. The Purchaser shall reimburse such party for any such expense following its receipt of
appropriate details thereof.
SECTION 30. Confidentiality.
The Seller agrees that the Purchaser has or will introduce buyers of mortgage loans to the
Seller, that buyers of mortgage loans are customers of the Purchaser and that the relationships of
the Purchaser to the buyers of mortgage loans are confidential. The Seller agrees, for a period of
six (6) months following the related Closing Date with respect to a particular buyer of Mortgage
Loans, the Seller will not, for the purpose of buying and selling other mortgage loans, communicate
with or sell such other mortgage loans to such buyer unless
-51-
such buyer is or has been independently introduced to the Seller or the Seller has had
previous dealings (not including any Whole Loan Transfer or Pass-Through Transfer) with such buyer,
provided, however, that the foregoing shall not apply to a buyer of mortgage loans which is Xxxxxx
Mae or Xxxxxxx Mac.
Each of the Seller, the Servicer and the Purchaser agrees that it (i) shall comply with all
applicable laws and regulations regarding the privacy or security of Consumer Personal Information,
(ii) shall not collect, create, use, store, access, disclose or otherwise handle Consumer Personal
Information in any manner inconsistent with any applicable laws or regulations regarding the
privacy or security of Consumer Personal Information, (iii) shall not disclose Consumer Personal
Information to any affiliated or non-affiliated third party except to enforce or preserve its
rights, as otherwise permitted or required by applicable law (or by regulatory authorities having
jurisdiction in the premises) or, in the case of the Seller or the Servicer, at the specific
written direction of the Purchaser, (iv) shall maintain appropriate administrative, technical and
physical safeguards to protect the security, confidentiality and integrity of Consumer Personal
Information and (v) shall promptly notify the other party in writing upon becoming aware of any
actual breach and of any suspected breach of this section. Each party hereto shall indemnify and
defend the other party against, and shall hold the other party harmless from, any cost, expense,
loss, claim or other liability that such other party may suffer as a result of or in connection
with its failure to comply with or perform the obligations set forth in this section.
SECTION 31. Recordation of Assignments of Mortgage.
To the extent permitted by applicable law, each of the Assignments of Mortgage is subject to
recordation in all appropriate public offices for real property records in all the counties or
other comparable jurisdictions in which any or all of the Mortgaged Properties are situated, and in
any other appropriate public recording office or elsewhere, such recordation to be effected at the
Purchaser’s expense in accordance with Section 10 hereof in the event recordation is either
necessary under applicable law or requested by the Purchaser at its sole option.
SECTION 32. Recordation of Agreement.
To the extent permitted by applicable law, this Agreement is subject to recordation in all
appropriate public offices for real property records in all the counties or other comparable
jurisdictions in which any or all the properties subject to the Mortgages are situated, and in any
other appropriate public recording office or elsewhere, such recordation to be effected by the
Seller at the Purchaser’s expense on direction of the Purchaser accompanied by an Opinion of
Counsel, also prepared at the Purchaser’s expense, to the effect that such recordation materially
and beneficially affects the interest of the Purchaser or is necessary for the administration or
servicing of the Mortgage Loans.
SECTION 33. Conflict with Purchase Price and Terms Letter.
In the event of any conflict or ambiguity between the terms and provisions of this Agreement
and a Purchase Price and Terms Letter, the Purchase Price and Terms Letter shall control and be
binding upon the Purchaser and the Seller.
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SECTION 34. No Solicitation.
From and after the related Closing Date, the Seller and the Servicer each hereby agrees that
neither the Seller nor the Servicer will not take any action or permit or cause any action to be
taken by any of their respective agents or affiliates, or by any independent contractors or
independent mortgage brokerage companies on the Seller’s or Servicer’s behalf, to personally, by
telephone or mail, solicit the Mortgagor under any Mortgage Loan for the purpose of refinancing
such Mortgage Loan; provided, that the Servicer may solicit any Mortgagor for whom the Servicer or
its affiliates have received a request for verification of mortgage, a request for demand for
payoff, a Mortgagor initiated written or verbal communication indicating a desire to prepay the
related Mortgage Loan, or the Mortgagor initiates a title search, provided further, it is
understood and agreed that promotions undertaken by the Servicer or any of its affiliates which (i)
concern optional insurance products or other additional products or (ii) are directed to the
general public at large, including, without limitation, mass mailings based on commercially
acquired mailing lists, newspaper, radio and television advertisements shall not constitute
solicitation nor is the Servicer prohibited from responding to unsolicited requests or inquiries
made by a Mortgagor or an agent of a Mortgagor. Notwithstanding the foregoing, the following
solicitations, if undertaken by the Servicer, shall not be prohibited: (i) solicitations that are
directed to the general public at large, including, without limitation, mass mailings based on
commercially acquired mailing lists and newspaper, radio, television and other mass media
advertisements and (ii) borrower messages included on, and statement inserts provided with, the
monthly statements sent to mortgagors; provided, however, that similar messages and inserts are
sent to the borrowers of other mortgage loans serviced by the Servicer.
[NO FURTHER TEXT ON THIS PAGE]
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IN WITNESS WHEREOF, the Seller, the Servicer 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.
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DLJ MORTGAGE CAPITAL, INC. |
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(Purchaser) |
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/s/ DLJ MORTGAGE CAPITAL, INC. |
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COUNTRYWIDE HOME LOANS, INC. |
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(Seller) |
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/s/ COUNTRYWIDE HOME LOANS, INC. |
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Name: |
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COUNTRYWIDE HOME LOANS SERVICING LP |
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(Servicer) |
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By: Countrywide GP, Inc., its General Partner
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/s/ COUNTRYWIDE GP, INC. |
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XXXXX XX XXX XXXX
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ss.: |
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On the day of , 2004 before me, a notary public in and for said State, appeared
, personally known to me on the basis of satisfactory evidence to be a
of DLJ Mortgage Capital, Inc., one of the corporations that executed the
within instrument, and also known to me to be the person who executed it on behalf of such
corporation and acknowledged to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand affixed my official seal the day and year in
this certificate first above written.
[Notarial Seal]
On the day of , 2004 before me, a Notary Public in and for said State, personally
appeared , known to me to be of Countrywide Home Loans, Inc., the
corporation that executed the within instrument and also known to me to be the person who executed
it on behalf of said corporation, and acknowledged to me that such corporation executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand affixed my office seal the day and year in
this certificate first above written.
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Notary Public |
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My Commission expires |
On the day of , 2004 before me, a notary public in and for said State, appeared
, personally known to me on the basis of satisfactory evidence to be a
of Countrywide GP, Inc., the general partner of Countrywide Home Loans
Servicing LP, and one of the corporations that executed the within instrument, and also known to me
to be the person who executed it on behalf of such organization and acknowledged to me that such
organization executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand affixed my official seal the day and year in
this certificate first above written.
[Notarial Seal]
EXHIBIT 1
SELLER’S OFFICER’S CERTIFICATE
I, , hereby certify that I am the duly elected Vice President of
Countrywide Home Loans, Inc., a New York 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.
No event has occurred since , 200___which has affected the good standing of the
Seller under the laws of the State of New York.
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
Mortgage Loan Purchase and Servicing Agreement (the “Purchase Agreement”), dated as of March
1, 2004, by and among the Seller, Countrywide Home Loans Servicing LP (the “Servicer”) and
DLJ Mortgage Capital, Inc. (the “Purchaser”) and (b) the Purchase Price and Terms Letter
(the “Terms Letter”), dated
, 200
, between the Seller and the Purchaser; 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 Terms
Letter 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. 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.
6. 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 Closing Date pursuant to
the Purchase Agreement.
All capitalized terms used herein and not otherwise defined shall have the meaning assigned to
them in the Purchase Agreement.
Exhibit 2-1
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the seal of the Seller.
Dated:
[Seal]
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COUNTRYWIDE HOME LOANS, INC. |
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Title: Vice President |
I, , Secretary of Countrywide Home Loans, Inc., 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]
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COUNTRYWIDE HOME LOANS, INC. |
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Title: [Assistant] Secretary |
Exhibit 1-2
EXHIBIT 2
[FORM OF OPINION OF COUNSEL TO THE SELLER]
(Date)
DLJ Mortgage Capital, Inc.
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Gentlemen:
I have acted as counsel to Countrywide Home Loans, Inc., a New York corporation (the
“Company”), in connection with the sale of certain mortgage loans by the Company to DLJ Mortgage
Capital, Inc. (the “Purchaser”) pursuant to (i) a
Mortgage Loan Purchase and Servicing Agreement,
dated as of March 1, 2004, among the Company, the Purchaser and Countrywide Home Loans Servicing LP
(the “Purchase Agreement”) and the Purchase Price and Terms Letter, dated , 200_, between the
Company and the Purchaser (the “Terms Letter”). 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:
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The Purchase Agreement; |
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The Terms Letter; |
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The Company’s Certificate of Incorporation and Bylaws, as
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Exhibit 2-1
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Resolutions adopted by the Board of Directors of the Company
with specific reference to actions relating to the transactions covered by this
opinion (the “Board Resolutions”). |
For the purpose of rendering this opinion, I have made such documentary, factual and legal
examinations as I deemed necessary under the circumstances. As to factual matters, I have relied
upon statements, certificates and other assurances of public officials and of officers and other
representatives of the Company, 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:
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The Company has been duly incorporated and is validly existing
and in good standing under the laws of the State of New York with corporate
power and authority to own its properties and conduct its business as presently
conducted by it. The Company 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 Terms Letter (sometimes collectively, the
“Agreements”). |
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The Purchase Agreement and the Terms Letter have been duly and
validly authorized, executed and delivered by the Company. |
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The Purchase Agreement and the Terms Letter constitute valid,
legal and binding obligations of the Company, enforceable against the Company
in accordance with their respective terms. |
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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 Company of the Purchase Agreement and the Terms
Letter, or the consummation of the transactions contemplated by the Purchase
Agreement and the Terms Letter, except for those consents, approvals,
authorizations or orders which previously have been obtained. |
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Neither the servicing of the Mortgage Loans by the Company as
provided in the Purchase Agreement and the Terms Letter, nor the fulfillment of
the terms of or the consummation of any other transactions contemplated in the
Purchase Agreement and the Terms Letter will result in a breach of any term or
provision of the certificate of incorporation or bylaws of the Company, 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 |
Exhibit 2-2
indenture or other agreement or instrument known to me to which the Company
is a party or by which it is bound, (ii) any State of California or federal
statute or regulation applicable to the Company, or (iii) any order of any
State of California or federal court, regulatory body, administrative agency
or governmental body having jurisdiction over the Company, except in any
such case where the default, breach or violation would not have a material
adverse effect on the Company or its ability to perform its obligations
under the Purchase Agreement.
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There is no action, suit, proceeding or investigation pending
or, to the best of my knowledge, threatened against the Company 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 Company to perform under the terms of the
Purchase Agreement. |
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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 Company thereto as
noteholder and mortgagee. |
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The Assignments of Mortgage are in recordable form and upon
completion will be acceptable for recording under the laws of the State of
California. |
The opinions above are subject to the following additional assumptions, exceptions,
qualifications and limitations:
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No opinion is expressed herein as to the ability of any party
to any document referred to herein to collect attorneys’ fees and costs in an
action involving the documents referred to herein if such party is not the
prevailing party in such action or to the extent such fees and costs are
greater than such reasonable fees and costs as may be determined by a court. |
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I express no opinion as to the provisions of the Agreements
designating governing law, and I assume for purposes of this opinion that the
Agreements will be governed by New York law, without regard to its conflicts of
laws principles. |
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I express no opinion as to the remedies available to the
parties for non-material violations or breaches of the Agreements and other
documents referred to herein. |
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Waivers of vaguely or broadly stated rights or future rights
may be deemed unenforceable under applicable law, and provisions that rights or
remedies are not exclusive, that every right or remedy is cumulative and |
Exhibit 2-3
may be exercised in addition to or with any other right or remedy or that
the election of some particular remedy or remedies does not preclude
recourse to one or more other remedies may also be unenforceable.
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I have assumed for purposes of this opinion that (l) the
Agreements correctly and completely set forth the intent of all parties
thereto; (2) the execution and delivery of the Agreements are free of mutual
mistake, fraud, misrepresentation, criminal activity, undue influence or
duress; and (3) all parties to the Agreements other than the Company have filed
all required franchise tax returns, if any, and paid all required taxes, if
any, under the California Revenue and Taxation Code (see Xxxxxx x. Xxxxxx, 214
Cal.App.3rd 668, 262 Cal.Rptr. 879 (1989), White Dragon Productions Inc. v.
Performance Guaranties Inc., 196 Cal.App.3rd 163, 241 Cal.Rptr. 745 (1987)). |
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I have assumed that all parties to the Agreements other than
the Company 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. |
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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 (l) 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 18 of the
Purchase Agreement. |
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I have assumed, without independent check or certification,
that there are no agreements or understandings among the Company, the Purchaser
and any other party which would expand, modify or otherwise affect the terms |
Exhibit 2-4
of the documents described herein or the respective rights or obligations of
the parties thereunder.
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I express no opinion as to any provision of the Agreements
requiring written amendments or waivers of such documents insofar as it
suggests that oral or other modifications, amendments or waivers could not be
effectively agreed upon by the parties or that the doctrine of promissory
estoppel might not apply. |
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My opinion in paragraph 3 above is subject to the effect of
Section 1670.5 of the California Civil Code, which provides that a court may
not enforce or may limit the application of a contract or portions thereof
which it finds as a matter of law to have been unconscionable at the time the
contract was made. |
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I express no opinion as to the applicability or effect of
compliance by the parties other than the Company with any state or federal laws
applicable to the transactions contemplated by the Agreements because of the
nature of such party’s business. |
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The qualification of any opinion or statement herein by the use
of the words “to the best of my knowledge” or “known to me” means that, during
the course of my employment by the Company in connection with the Agreements,
no information has come to my attention which gives me actual knowledge of the
existence of the matters, actions, proceedings, items, documents or facts so
qualified. However, I have not undertaken any independent investigation or
inquiry to determine the existence of such matters, actions, proceedings,
items, documents or facts and no inference as to my knowledge thereof shall be
drawn from the fact of my employment by any party. |
I am admitted to practice in the State of California, and, except as set forth below, I render
no opinion herein as to matters involving the laws of any jurisdiction other than the State of
California and the Federal laws of the United States of America. Insofar as the opinions expressed
in paragraphs 1 through 5 above relate to matters that are governed by the laws of the State of New
York, I am generally familiar with the laws of the State of New York as they relate to corporate
organization, and for the limited purpose of the opinions set forth in paragraphs 1 and 2 above, I
do not feel it is necessary to consult with New York counsel. This opinion is limited to such laws
as they presently exist, to present judicial interpretations thereof and to the facts as they
presently exist or are contemplated by the Agreements. In rendering this opinion, I assume no
obligation to revise or supplement this opinion should the present laws of the jurisdictions
mentioned herein be changed by legislative actions, judicial decisions or otherwise. This opinion
is rendered as of the date hereof, and I express no opinion as to, and disclaim any undertaking or
obligation to update this opinion in respect of, changes of circumstances or events which occur
subsequent to this date.
Exhibit 2-5
This opinion is furnished to you in connection with the Agreements and the transactions
contemplated thereby and, except as provided below, may not be relied upon by any other person or
by you in any other context without my prior written consent. This opinion may not be included in
any other document or quoted or otherwise referred to in whole or in part without my prior written
consent, except that I understand you will be delivering a copy of this letter to your Counsel, and
I consent to their reliance on this letter for such purposes.
Very truly yours,
Exhibit 2-6
EXHIBIT 3
SECURITY RELEASE CERTIFICATION
I. Release of Security Interest
, duly authorized as collateral agent for the lenders from time to time
participating in that certain Amended and Restated Mortgage Loan Warehousing Agreement, dated as of
, 200_, with as agent, as amended from time to time (the “Warehousing Agreement”), to relinquish
any and all right, title and interest it may have as collateral agent in the mortgage loans
described in
Exhibit A attached hereto (the “Mortgage Loans”), hereby relinquishes any and
all right, title and interest it may have as collateral agent in and to the Mortgage Loans upon
purchase thereof by Purchaser from the Company named below pursuant to that certain
Mortgage Loan
Purchase and Servicing Agreement, dated as of March 1, 2004, as of the date and time of receipt by
, as funding bank under the Warehousing Agreement, 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 Company named below or its designees as of the Date and Time of Sale.
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Name and Address of Financial Institution |
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Exhibit 3-1
II. Certification of Release
The Company named below hereby certifies to Purchaser that, as of the Date and Time of Sale of
the above mentioned Mortgage Loans to Purchaser, 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 Company warrants that, as of such time, there are and will be
no other security interests affecting any or all of such Mortgage Loans.
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COUNTRYWIDE HOME LOANS, INC. |
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Seller |
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By: |
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Name: |
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Exhibit 3-2
EXHIBIT 4
ASSIGNMENT AND CONVEYANCE
On this
day of
, 200_, Countrywide Home Loans, Inc. (“Countrywide”) as the Seller
under that certain
Mortgage Loan Purchase and Servicing Agreement, dated as of March 1, 2004 (the
“Agreement”), by and among Countrywide, Countrywide Home Loans Servicing LP (the “Servicer”) and
DLJ Mortgage Capital, Inc. (the “Purchaser”) does hereby sell, transfer, assign, set over and
convey to the Purchaser under the Agreement, without recourse, but subject to the terms of the
Agreement, all rights, title and interest of Countrywide (excluding the right to service the
Mortgage Loans) in and to the Mortgage Loans listed on the Mortgage Loan Schedule attached hereto,
together with the Mortgage Files and all rights and obligations arising under the documents
contained therein. Pursuant to Subsection 6.03 of the Agreement, Countrywide has delivered to the
Custodian the documents for each Mortgage Loan to be purchased as set forth therein. The contents
of each Servicing File required to be retained by the Servicer to service the Mortgage Loans
pursuant to the Agreement and thus not delivered to Purchaser are and shall be held in trust by the
servicer, for the benefit of Purchaser as the owner thereof. The Servicer’s possession of any
portion of the Servicing File is at the will of Purchaser for the sole purpose of facilitating
servicing of the related Mortgage Loan pursuant to the Agreement, and such retention and possession
by the Servicer 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 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 Countrywide or the Servicer shall immediately vest in Purchaser
and shall be retained and maintained, in trust, by the Servicer at the will of Purchaser in such
custodial capacity only.
Exhibit 4-1
Capitalized terms used herein and not otherwise defined shall have the meanings set forth in
the Agreement.
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COUNTRYWIDE HOME LOANS, INC. |
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ACKNOWLEDGED AND AGREED: |
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COUNTRYWIDE HOME LOANS SERVICING LP |
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By: Countrywide GP, Inc., its general partner. |
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By: |
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Exhibit 4-2
EXHIBIT 5
CONTENTS OF EACH MORTGAGE FILE
With respect to each Mortgage Loan, the Mortgage File shall include each of the following
items as required by the applicable Mortgage Loan documentation style, which shall be available for
inspection by the Purchaser and which shall be delivered to the Custodian pursuant to Subsection
6.03 of the
Mortgage Loan Purchase and Servicing Agreement, dated as of March 1, 2004 (the
“Agreement”), by and among Countrywide Home Loans, Inc., Countrywide Home Loans Servicing LP and
DLJ Mortgage Capital, Inc. Capitalized terms shall have the respective meanings ascribed thereto
in the Agreement.
1. The original Mortgage Note endorsed by the Seller in the following form: “Pay to the order
of , without recourse” with all intervening endorsements showing a complete chain of
title from the originator to the Seller.
2. For each Mortgage Loan that is not a MERS Mortgage Loan, the original recorded Mortgage and
in the case of each MERS Mortgage Loan, the original Mortgage, noting the presence of the MIN for
that Mortgage Loan and either language indicating that the Mortgage Loan is a MOM Loan if the
Mortgage Loan is a MOM Loan, or if such Mortgage Loan was not a MOM Loan at origination, the
original Mortgage and the assignment to MERS, with evidence of recording thereon. If in connection
with any Mortgage Loan, the Seller has not delivered or caused to be delivered the original
Mortgage with evidence of recording thereon on or prior to the Closing Date because of a delay
caused by the public recording office where such Mortgage has been delivered for recordation or
because such Mortgage has been lost or because such public recording office retains the original
recorded Mortgage, the Seller shall deliver or cause to be delivered to the Purchaser or the
Purchaser’s designee, (i) in the case of a delay caused by the public recording office, a copy of
such Mortgage certified by the Seller 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.
3. In the case of each Mortgage Loan that is not a MERS Mortgage Loan, a duly executed
Assignment of Mortgage, from the Seller in blank, which assignment shall be in form and substance
acceptable for recording.
4. The title insurance policy shall be delivered to the Purchaser or its designee promptly
upon receipt thereof by the Seller but in no event later than the time specified in Subsection 6.03
of the Agreement.
5. Recorded originals of any intervening assignments, showing a complete chain of title from
the originator to the Seller (or to MERS, if the Mortgage Loan is registered on the MERS System),
with evidence of recording thereon.
6. Originals of each assumption, modification, written assurance or substitution of liability
agreement, if any.
Exhibit 5-1
7. The original of any guarantee executed in connection with the Mortgage Note.
8. If the Loan-to-Value Ratio indicated on the Mortgage Loan Schedule exceeds 80%, the Seller
shall provide the name of the insurer of any related Primary Mortgage Insurance Policy, the amount
of such Primary Mortgage Insurance Policy and the certificate number of the Primary Mortgage
Insurance Policy.
Exhibit 5-2
EXHIBIT 6
CONTENTS OF EACH SERVICING FILE
With respect to each Mortgage Loan, the Servicing File shall include copies of each of the
documents included in the Mortgage File and each of the following additional items as required by
the applicable Mortgage Loan documentation style, which shall be available for inspection by the
Purchaser and which shall be retained by the Servicer. Capitalized terms used but not defined
herein shall have the respective meanings ascribed thereto in the Mortgage Loan Purchase and
Servicing Agreement, dated as of March 1, 2004, by and among Countrywide Home Loans, Inc.,
Countrywide Home Loans Servicing LP and DLJ Mortgage Capital, Inc.
1. Copy of survey of the Mortgaged Property.
2. Original hazard insurance policy and, if required by law, flood insurance policy, with
extended coverage of the hazard insurance policy, as required by the applicable documentation
program.
3. Mortgage Loan closing statement.
4. Residential loan application.
5. Verification of employment and income, depending upon the documentation program under which
the Mortgage Loan was originated.
6. Verification of acceptable evidence of source and amount of downpayment, as required by the
applicable documentation program.
7. Credit report on the Mortgagor, as required by the applicable documentation program.
8. Residential appraisal report and attachments thereto, as required by the applicable
documentation program.
9. Executed disclosure statement.
10. If available, termite report, structural engineer’s report, water potability and septic
certification.
11. Sales contract, if applicable.
12. Amortization schedule, if available.
13. The original power of attorney or a copy thereof, if any, certified by an authorized
officer of the Seller, for any document described above which is delivered to the Custodian.
Exhibit 6-1
14. A written commitment or interim binder or preliminary report of title issued by the title
insurance company dated as of the date the Mortgage Loan was funded.
Exhibit 6-2
EXHIBIT 7
CUSTODIAL ACCOUNT LETTER AGREEMENT
, 200
As Servicer under the Mortgage Loan Purchase and Servicing Agreement, dated as of March 1,
2004, we hereby authorize and request you to establish an account, as a Custodial Account, to be
designated as “Countrywide Home Loans Servicing LP in trust for the Purchaser, Conventional
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.
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COUNTRYWIDE HOME LOANS SERVICING LP |
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By: Countrywide GP, Inc., its general partner. |
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By: |
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Name: |
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Title: |
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Date: |
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Exhibit 7-1
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”).
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Depository |
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By: |
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Name: |
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Title: |
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Date: |
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Exhibit 7-2
EXHIBIT 8
ESCROW ACCOUNT LETTER AGREEMENT
, 200
As Servicer under the Mortgage Loan Purchase and Servicing Agreement, dated as of March 1,
2004, we hereby authorize and request you to establish an account, as an Escrow Account, to be
designated as “Countrywide Home Loans Servicing LP in trust for the Purchaser, Conventional
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.
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COUNTRYWIDE HOME LOANS SERVICING LP |
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By: Countrywide GP, Inc., its general partner. |
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By: |
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Name: |
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Title: |
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Date: |
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Exhibit 8-1
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”).
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Depository |
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Name: |
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Title: |
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Exhibit 8-2
EXHIBIT 9
SERVICING ADDENDUM
SECTION 11. Administration and Servicing of the Mortgage Loans.
Subsection 11.01 Servicer to Act as Servicer.
The Servicer, as independent contract servicer, shall service and administer the Mortgage
Loans in accordance with this Agreement and the normal and usual standards of practice of prudent
mortgage lenders, 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 Servicer may deem
necessary or desirable and consistent with the terms of this Agreement. In servicing and
administering the Mortgage Loans, the Servicer 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 Servicer.
Consistent with the terms of this Agreement, the Servicer 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 Servicer’s reasonable and prudent
determination such waiver, modification, postponement or indulgence is not materially adverse to
the Purchaser; provided, however, that the Servicer shall not permit any modification with respect
to any Mortgage Loan that would decrease the Mortgage Interest Rate (other than by adjustments
required by the terms of the Mortgage Note), 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 future advances or extend the final maturity date on such Mortgage Loan without
the Purchaser’s prior written consent. The Servicer may permit forbearance or allow for suspension
of Monthly Payments in either case for up to one hundred and eighty (180) days if the Mortgagor is
in default or the Servicer determines in its reasonable discretion that default is imminent and if
the Servicer determines that granting such forbearance or suspension is in the best interest of the
Purchaser, provided, that any such agreement shall be approved by the holder of any related LPMI
Policy or Primary Mortgage Insurance Policy, if required under such related policy. In the event
that any such modification, forbearance or suspension as permitted above allows the deferral of
interest or principal payments on any Mortgage Loan, the Servicer shall include in each remittance
for any month in which any such principal or interest payment has been deferred (without giving
effect to such modification, forbearance or suspension) an amount equal to, as the case may be,
such month’s principal and one (1) month’s interest at the Mortgage Loan Remittance Rate on the
then unpaid principal balance of the Mortgage Loan and shall be entitled to reimbursement for such
advances only to the same extent as for Monthly Advances made pursuant to Subsection 11.19.
Without limiting the generality of the foregoing, the Servicer 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 Servicer, the Purchaser shall furnish the Servicer with any powers of
Exhibit 9-1
attorney and other documents necessary or appropriate to enable the Servicer to carry out its
servicing and administrative duties under this Agreement.
The Servicer shall accurately and fully report its Mortgagor Credit files related to the
Mortgage Loans to Equifax, Transunion and Experian in a timely manner.
Subsection 11.02 Collection of Mortgage Loan Payments.
Continuously from the date hereof until the principal and interest on all Mortgage Loans is
paid in full, the Servicer will proceed diligently to collect all payments due under each Mortgage
Loan when the same shall become due and payable and shall, to the extent such procedures shall be
consistent with this Agreement and the terms and provisions of any related Primary Mortgage
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
Servicer will 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 that end, the
Servicer shall ensure 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.
The Servicer shall use its best efforts, consistent with Accepted Servicing Practices,
procedures that the Servicer would use in servicing loans for its own account, any related Primary
Mortgage Insurance Policy or LPMI Policy and the best interests of the Purchaser, to foreclose upon
or otherwise comparably convert the ownership of properties securing such of the Mortgage Loans as
come into and continue in default and as to which no satisfactory arrangements can be made for
collection of delinquent payments pursuant to Subsection 11.01. Foreclosure or comparable
proceedings shall be initiated within one hundred twenty (120) days of default for Mortgaged
Properties for which no satisfactory arrangements can be made for collection of delinquent
payments. The Servicer shall use its best efforts to realize upon defaulted Mortgage Loans in such
manner as will maximize the receipt of principal and interest by the Purchaser, taking into
account, among other things, the timing of foreclosure proceedings. The foregoing is subject to
the provisions that, in any case in which Mortgaged Property shall have suffered damage, the
Servicer 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 the Purchaser after
reimbursement to itself for such expenses, and (ii) that such expenses will be recoverable by the
Servicer through Primary Mortgage Insurance Proceeds, Other Insurance Proceeds or Liquidation
Proceeds from the related Mortgaged Property, as contemplated in Subsection 11.05. The Servicer
shall notify the Purchaser and any master servicer in writing of the commencement of foreclosure
proceedings. Such notice may be contained in the reports prepared by the Servicer and delivered to
Purchaser pursuant to the terms and conditions of this Agreement. In such connection, the Servicer shall be responsible
for all costs and expenses incurred by it in any such proceedings; provided, however, that it shall
be entitled to reimbursement thereof from the related property, as contemplated in Subsection
11.05. Notwithstanding anything to the contrary contained herein, in connection with a
Exhibit 9-2
foreclosure
or acceptance of a deed in lieu of foreclosure, in the event the Servicer has reasonable cause to
believe that a Mortgaged Property is contaminated by hazardous or toxic substances or wastes, or if
the Purchaser otherwise requests an environmental inspection or review of such Mortgaged Property,
such an inspection or review is to be conducted by a qualified inspector at the Purchaser’s
expense. Upon completion of the inspection, the Servicer shall promptly provide the Purchaser with
a written report of the environmental inspection. After reviewing the environmental inspection
report, the Purchaser shall determine how the Servicer shall proceed with respect to the Mortgaged
Property.
In the event that a Mortgage Loan becomes part of a REMIC, and becomes REO Property, such
property shall be disposed of by the Servicer, with the consent of the Purchaser as required
pursuant to this Agreement, within three (3) years after becoming an REO Property, unless the
Servicer provides to the trustee under such REMIC an opinion of counsel to the effect that the
holding of such REO Property subsequent to three years after its becoming REO Property, will not
result in the imposition of taxes on “prohibited transactions” as defined in Section 860F of the
Code, or cause the transaction to fail to qualify as a REMIC at any time that certificates are
outstanding. The Servicer shall manage, conserve, protect and operate each such REO Property for
the certificateholders solely for the purpose of its prompt disposition and sale in a manner which
does not cause such property to fail to qualify as “foreclosure property” within the meaning of
Section 860F(a)(2)(E) of the Code, or any “net income from foreclosure property” which is subject
to taxation under the REMIC provisions of the Code. Pursuant to its efforts to sell such property,
the Servicer shall either itself or through an agent selected by the Servicer, protect and conserve
such property in the same manner and to such an extent as is customary in the locality where such
property is located. Additionally, the Servicer shall provide the Purchaser or any master servicer
in connection with a Reconstitution with information sufficient for such party to comply with the
tax withholding and reporting related to Sections 1445 and 6050J of the Code.
Subsection 11.04 Establishment of Custodial Accounts; Deposits in Custodial
Accounts.
The Servicer 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 (1) or more Custodial Accounts, in the form of time deposit or demand accounts
which accounts shall be Eligible Accounts. The creation of any Custodial Account shall be
evidenced by a letter agreement in the form shown in Exhibit 7 hereto. A copy of such
letter agreement shall be furnished to the Purchaser upon request.
The Servicer shall deposit in the Custodial Account within two (2) Business Days of receipt,
and retain therein the following payments and collections received or made by it subsequent to the
related Cut-off Date, or received by it prior to the related 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 related Cut-off Date:
(i) all payments on account of principal, including Principal Prepayments, on the
Mortgage Loans;
Exhibit 9-3
(ii) all payments on account of interest on the Mortgage Loans adjusted to the Mortgage
Loan Remittance Rate;
(iii) all proceeds from a Cash Liquidation;
(iv) all Primary Mortgage Insurance Proceeds and Other Insurance Proceeds including
amounts required to be deposited pursuant to Subsections 11.08, 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 Accepted Servicing
Practices, the Mortgage Loan Documents or applicable law;
(v) all Condemnation Proceeds affecting any Mortgaged Property which are not released
to the Mortgagor in accordance with Accepted Servicing Practices, the Mortgage Loan
Documents or applicable law;
(vi) any Monthly Advances;
(vii) all proceeds of any Mortgage Loan repurchased in accordance with Subsections 7.04
, 7.05 and 11.03, and any amount required to be remitted for deposit by the Seller in
connection with any shortfall in principal amount of the Qualified Substitute Mortgage Loans
and the Deleted Mortgage Loans as required pursuant to Subsection 7.04;
(viii) any amounts required to be deposited by the Servicer pursuant to Section 11.10
in connection with the deductible clause in any blanket hazard insurance policy such deposit
shall be made from the Servicer’s own funds, without reimbursement therefor;
(ix) the Prepayment Interest Shortfall Amount, if any, for the month of distribution,
such deposit shall be made from the Servicer’s own funds, without reimbursement therefor up
to a maximum amount per month of the Servicing Fee payable for such month for the Mortgage
Loans; provided, the Servicer shall not be obligated to deposit any amounts
representing Relief Act Interest Shortfalls;
(x) any amounts required to be deposited by the Servicer in connection with any REO
Property pursuant to Subsection 11.13; and
(xi) any amounts required to be deposited in the Custodial Account pursuant to
Subsection 11.01, 11.14, 11.22 or 11.23.
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 prepayment penalties, late payment charges and assumption fees, to the extent permitted
by Subsection 11.24, need not be deposited by the Servicer in the Custodial Account. Any interest
paid on funds deposited in the Custodial Account by the depository institution shall accrue to the
benefit of the Servicer and the Servicer shall be entitled to retain and withdraw such interest
from the Custodial Account pursuant to Subsection 11.05(iv).
Exhibit 9-4
Subsection 11.05 Permitted Withdrawals From the Custodial Account.
The Servicer may, from time to time, withdraw from the Custodial Account for the following
purposes:
(i) to make payments to the Purchaser in the amounts and in the manner provided for in
Subsection 11.17;
(ii) to reimburse itself for Monthly Advances, the Servicer’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
Servicer’s right thereto shall be prior to the rights of the Purchaser;
(iii) to reimburse itself for unreimbursed Servicing Advances and any unpaid Servicing
Fees, the Servicer’s right to reimburse itself pursuant to this subclause (iii) with respect
to any Mortgage Loan being limited to related proceeds from Cash Liquidation, Liquidation
Proceeds, Condemnation Proceeds, Primary Mortgage Insurance Proceeds and Other Insurance
Proceeds;
(iv) to pay to itself as servicing compensation (a) any interest earned on funds in the
Custodial Account (all such interest to be withdrawn monthly not later than each Remittance
Date), and (b) the Servicing Fees from that portion of any payment or recovery as to
interest with respect to a particular Mortgage Loan;
(v) to pay to the Seller with respect to each Mortgage Loan that has been repurchased
pursuant to Subsection 7.04 all amounts received thereon and not distributed as of the date
on which the related Repurchase Price is determined;
(vi) to reimburse itself for unreimbursed Monthly Advances and Servicing Advances to
the extent not fully reimbursed pursuant to Subsection 11.05(ii) or (iii) above;
(vii) to transfer funds to another Eligible Account in accordance with Section 11.09
hereof;
(viii) to make payments in respect of LPMI Fees due, if any;
(ix) to clear and terminate the Custodial Account upon the termination of this
Agreement; and
(x) to reimburse itself for any amounts deposited in the Custodial Account in error.
Subsection 11.06 Establishment of Escrow Accounts; Deposits in Escrow
Accounts.
Exhibit 9-5
The Servicer 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 (1) or more Escrow Accounts which accounts
shall be Eligible Accounts, in the form of time deposit or demand accounts. The creation of any
Escrow Account shall be evidenced by a letter agreement in the form shown in Exhibit D
hereto. A copy of such letter agreement shall be furnished to the Purchaser upon request.
The Servicer shall deposit in the Escrow Account or Accounts within two (2) Business Days of
receipt, and retain therein, (i) all Escrow Payments collected on account of the Mortgage Loans,
for the purpose of effecting timely payment of any such items as required under the terms of this
Agreement, and (ii) all Other Insurance Proceeds which are to be applied to the restoration or
repair of any Mortgaged Property. The Servicer 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 Servicer 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 Servicer 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 Servicer (i) to effect timely payments
of ground rents, taxes, assessments, water rates, mortgage insurance premiums, Primary Mortgage
Insurance Policy premiums, if applicable, and comparable items (ii) to reimburse the Servicer for
any Servicing Advance made by the Servicer 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 Servicer, or to the Mortgagors to the extent required by law, any interest paid on the funds
deposited in the Escrow Account, (vii) to reimburse itself for any amounts deposited in the Escrow
Account in error, or (viii) to clear and terminate the Escrow Account on the termination of this
Agreement. As part of its servicing duties, the Servicer shall pay to the Mortgagors interest on funds in the Escrow Account, to the extent
required by law, and to the extent that interest earned on funds in the Escrow Account is
insufficient, shall pay such interest from its own funds, without any reimbursement therefor.
Subsection 11.08 Payment of Taxes, Insurance and Other Charges;
Maintenance of Primary Mortgage Insurance Policies or LPMI
Policies; Collections Thereunder.
With respect to each Mortgage Loan, the Servicer shall maintain accurate records reflecting
the status of ground rents, taxes, assessments, water rates and other charges which are or may
become a lien upon the Mortgaged Property and the status of primary mortgage insurance premiums and
fire and hazard insurance coverage and shall obtain, from time to time, all bills for
Exhibit 9-6
the payment
of such charges, including renewal premiums and shall effect payment thereof prior to the
applicable penalty or termination date and at a time appropriate for securing maximum discounts
allowable, employing for such purpose deposits of the Mortgagor in the Escrow Account which shall
have been estimated and accumulated by the Servicer in amounts sufficient for such purposes, as
allowed under the terms of the Mortgage or applicable law. To the extent that the Mortgage does
not provide for Escrow Payments, the Servicer shall determine that any such payments are made by
the Mortgagor at the time they first become due. The Servicer 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 advances from its own funds to effect such payments.
The Servicer will maintain in full force and effect, a Primary Mortgage Insurance Policy
conforming in all respects to the description set forth in Section 7.02(xxxii), issued by a
Qualified Insurer, with respect to each Mortgage Loan for which such coverage is herein required.
Such coverage will be maintained until the Updated Loan-to-Value Ratio of the related Mortgage Loan
is reduced to 75% or less in the case of a Mortgage Loan having a Loan-to-Value Ratio at
origination in excess of 80%, unless state law provides that the Mortgagor may elect to cancel. The
Servicer will not cancel or refuse to renew any Primary Mortgage Insurance Policy or LPMI Policy in
effect on the Closing Date that is required to be kept in force under this Agreement unless a
replacement Primary Mortgage Insurance Policy or LPMI Policy for such canceled or nonrenewed policy
is obtained from and maintained with a Qualified Insurer. The Servicer shall not take any action
which would result in non-coverage under any applicable Primary Mortgage Insurance Policy or LPMI
Policy of any loss which, but for the actions of the Servicer would have been covered thereunder.
In connection with any assumption or substitution agreement entered into or to be entered into
pursuant to Subsection 11.22, the Servicer shall promptly notify the insurer under the related
Primary Mortgage 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 Mortgage
Insurance Policy or LPMI Policy. If such Primary Mortgage Insurance Policy or LPMI Policy is
terminated as a result of such assumption or substitution of liability, the Servicer shall obtain a replacement Primary
Mortgage Insurance Policy or LPMI Policy as provided above.
In connection with its activities as servicer, the Servicer agrees to prepare and present, on
behalf of itself and the Purchaser, claims to the insurer under any Primary Mortgage Insurance
Policy or LPMI Policy in a timely fashion in accordance with the terms of such Primary Mortgage
Insurance Policy or LPMI Policy and, in this regard, to take such action as shall be necessary to
permit recovery under any Primary Mortgage Insurance Policy or LPMI Policy.
Subsection 11.09 Transfer of Accounts.
The Servicer may transfer the Custodial Account or the Escrow Account to a different
depository institution from time to time. The Servicer shall promptly notify the Purchaser that
such transfer has been made. In any case, the Custodial Account and Escrow Account shall be
Eligible Accounts.
Exhibit 9-7
Subsection 11.10 Maintenance of Hazard Insurance.
The Servicer 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 equal to the lesser of (i) the maximum insurable value of the improvements securing
such Mortgage Loan or (ii) the greater of (a) the unpaid principal balance of the Mortgage Loan,
and (b) the percentage such that the proceeds thereof shall be sufficient 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 issued by the Federal Emergency Management Agency or is
identified in the Federal Register as having special flood hazards and such flood insurance has
been made available, the Servicer will cause to be maintained a flood insurance policy meeting the
requirements of the current guidelines of the Federal Insurance Administration with a Qualified
Insurer, in an amount representing coverage not less than the least of (i) the unpaid principal
balance of the Mortgage Loan, (ii) the maximum insurable value of the improvements securing such
Mortgage Loan or (iii) the maximum amount of insurance which is available under the Flood Disaster
Protection Act of 1973, as amended. The Servicer shall also maintain on the REO Property, fire and
hazard insurance with extended coverage in an amount which is at least equal to the maximum
insurable value of the improvements which are a part of such property, liability insurance and, to
the extent required and available under the Flood Disaster Protection Act of 1973, as amended,
flood insurance in an amount as provided above. Any amounts collected by the Servicer under any
such policies other than amounts to be deposited in the Escrow Account and applied to the
restoration or repair of the Mortgaged Property or REO Property, or released to the Mortgagor in
accordance with Accepted Servicing Practices, shall be deposited in the Custodial Account, subject
to withdrawal pursuant to Subsection 11.05. It is understood and agreed that no earthquake or
other additional insurance need be required by the Servicer or the Mortgagor or maintained on
property acquired in respect of the Mortgage Loan, other than pursuant to this Agreement, the FNMA
Guides or 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 Servicer and shall provide for at least thirty days prior written notice
of any cancellation, reduction in the amount or material change in coverage to the Servicer. The
Servicer shall not interfere with the Mortgagor’s freedom of choice in selecting either his
insurance carrier or agent, provided, however, that the Servicer shall not accept any such
insurance policies from insurance companies unless such companies currently reflect a General
Policy Rating of B:VI or better in Best’s Key Rating Guide and are Qualified Insurers.
Subsection 11.11 Maintenance of Mortgage Impairment Insurance Policy.
In the event that the Servicer shall obtain and maintain a blanket policy issued by a
Qualified Insurer that has a Best rating of A+:XV insuring against hazard losses on all of the
Mortgage Loans, then, to the extent such policy provides coverage in an amount equal to the amount
required pursuant to Subsection 11.10 and otherwise complies with all other requirements of
Subsection 11.10, it 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 Servicer 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 a loss which would have been covered by such
Exhibit 9-8
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 Servicer agrees
to prepare and present, on behalf of the Purchaser, claims under any such blanket policy in a
timely fashion in accordance with the terms of such policy. Upon request of the Purchaser, the
Servicer shall cause to be delivered to the Purchaser a certified true copy of such policy and
shall use its best efforts to obtain a statement from the insurer thereunder that such policy shall
in no event be terminated or materially modified without thirty (30) days’ prior written notice to
the Purchaser.
Subsection 11.12 Fidelity Bond; Errors and Omissions Insurance.
The Servicer shall maintain, at its own expense, a blanket Fidelity Bond and an errors and
omissions insurance policy, with broad coverage with responsible companies on all officers,
employees or other persons acting in any capacity with regard to the Mortgage Loans in handling
funds, money, documents and papers relating to the Mortgage Loan. The Fidelity Bond and errors and
omissions insurance shall be in the form of a mortgage banker’s blanket bond and shall protect and
insure the Servicer 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
Servicer 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
Servicer from its duties and obligations as set forth in this Agreement. The minimum coverage under
any such Fidelity Bond and insurance policy shall be at least equal to the corresponding amounts
required by FNMA in the FNMA Guidelines or by FHLMC in the FHLMC Sellers’ and Servicers’ Guide. Upon request of the Purchaser, the Servicer
shall cause to be delivered to the Purchaser a certified true copy of the Fidelity Bond and
insurance policy and shall use its best efforts to obtain a statement from the surety and the
insurer that such Fidelity Bond or insurance policy shall in no event be terminated or materially
modified without thirty (30) days’ prior written notice to the Purchaser. The Servicer shall
notify the Purchaser within five (5) business days of receipt of notice that such Fidelity Bond or
insurance policy will be, or has been, materially modified or terminated. Upon request by the
Purchaser, the Servicer shall provide the Purchaser with an insurance certificate certifying
coverage under this Subsection 11.12, and will provide an update to such certificate upon request,
or upon renewal or material modification of coverage.
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 Servicer for
the benefit of the Purchaser, or in the event the Purchaser is not authorized or permitted to hold
title to real property in the state where the REO Property is located, or would be adversely
affected under the “doing business” or tax laws of such state by so holding title, the deed or
certificate of sale shall be taken in the name of such Person or Persons as shall be consistent
with an Opinion of Counsel obtained by the Servicer from an attorney duly licensed to practice law
in the state where the REO Property is located. Any Person or Persons holding such
Exhibit 9-9
title other than
the Purchaser shall acknowledge in writing that such title is being held as nominee for the benefit
of the Purchaser.
The Servicer shall either itself or through an agent selected by the Servicer, manage,
conserve, protect and operate each REO Property in the same manner that it manages, conserves,
protects and operates other foreclosed property for its own account, and in the same manner that
similar property in the same locality as the REO Property is managed. The Servicer 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 or more frequently as required by the
circumstances. The Servicer shall make or cause to be made a written report of each such
inspection. Such reports shall be retained in the Servicing File and copies thereof shall be
forwarded by the Servicer to the Purchaser within five (5) Business Days of the Purchaser’s request
therefor. The Servicer shall attempt to sell the same (and may temporarily rent the same) on such
terms and conditions as the Servicer deems to be in the best interest of the Purchaser. With
respect to each REO Property, the Servicer shall segregate and hold all funds collected and
received in connection with the operation of the REO Property separate and apart from its own funds
or general assets and shall establish and maintain a REO Account for the REO Properties in the form
of a non-interest bearing demand account which shall be an Eligible Account, unless an Opinion of
Counsel is obtained by the Servicer to the effect that the classification as a grantor trust for
federal income tax purposes of the arrangement under which the Mortgage Loans and the REO
Properties is held will not be adversely affected by holding such funds in another manner. The
Servicer shall deposit or cause to be deposited, on a daily basis in the REO Account all revenues
received with respect to the REO Properties and shall withdraw therefrom funds necessary for the
proper operation, management and maintenance of the REO Properties, including (i) the cost of maintaining any hazard insurance pursuant to Subsection 11.10 hereof
and (ii) either (A) the fees of any managing agent acting on behalf of the Servicer or (B) in the
event that the Servicer is managing the REO Property, then the related Servicing Fee. The Servicer
shall not be entitled to retain interest paid or other earnings, if any, on funds deposited in the
REO Account. On or before each Determination Date, the Servicer shall withdraw from the REO
Account and deposit into the Custodial Account the net income from the REO Properties on deposit in
the REO Account.
The Servicer shall furnish to the Purchaser on each Remittance Date, an operating statement
for each REO Property covering the operation of each REO Property for the previous month. Such
operation statement shall be accompanied by such other information as the Purchaser shall
reasonably request.
The Servicer 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 (1) year after title to such REO Property has
been obtained, unless the Servicer determines, and gives an 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 (1) year is permitted under this Agreement and is necessary to sell any REO
Property, the Servicer shall report monthly to the Purchaser as to the progress being made in
selling such REO Property. No REO Property shall be marketed for less than the appraised value
without the prior consent of the Purchaser. No REO Property shall be sold for less than ninety five
percent (95%) of its appraised value without the prior consent of the Purchaser.
Exhibit 9-10
Each REO Disposition shall be carried out by the Servicer at such price and upon such terms
and conditions as the Servicer deems to be in the best interest of the Purchaser. If as of the
date title to any REO Property was acquired by the Servicer there were outstanding unreimbursed
Servicing Advances, Monthly Advances or Servicing Fees with respect to the REO Property or the
related Mortgage Loan, the Servicer, upon an REO Disposition of such REO Property, shall be
entitled to reimbursement for any related unreimbursed Servicing Advances, Monthly Advances and
Servicing Fees from proceeds received in connection with such REO Disposition. The proceeds from
the REO Disposition, net of any payment to the Servicer 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 Remittance Date in accordance
with Subsection 11.17.
Notwithstanding anything to the contrary contained herein, the Purchaser may, at the
Purchaser’s sole option, terminate the Servicer as servicer of any such REO Property without
payment of any termination fee with respect thereto, provided that the Servicer shall on the date
said termination takes effect be reimbursed by withdrawal from the Custodial Account for any
unreimbursed Monthly Advances of the Servicer’s funds made pursuant to Subsection 11.17 and any
unreimbursed Servicing Advances in each case relating to the Mortgage Loan underlying such REO
Property notwithstanding anything to the contrary set forth in Subsection 11.05. In the event of
any such termination, the provisions of Section 16 hereof shall apply to said termination and the
transfer of servicing responsibilities with respect to such REO Property to the Purchaser or its
designee.
Subsection 11.14 Notification of Adjustments.
With respect to each Adjustable Rate Mortgage Loan, the Servicer shall adjust the Mortgage
Interest Rate on the related Interest Adjustment Date and shall adjust the Monthly Payment on the
related Payment Adjustment Date in compliance with the requirements of applicable law and the
related Mortgage and Mortgage Note. If, pursuant to the terms of the Mortgage Note, another index
is selected for determining the Mortgage Interest Rate because the original Index is no longer
available, the same index will be used with respect to each Mortgage Note which requires a new
index to be selected, provided that such selection does not conflict with the terms of the related
Mortgage Note. The Servicer shall execute and deliver any and all necessary notices required under
applicable law and the terms of the related Mortgage Note and Mortgage regarding the Mortgage
Interest Rate and the Monthly Payment adjustments. The Servicer shall promptly upon written
request thereof, deliver to the Purchaser such notifications and any additional applicable data
regarding such adjustments and the methods used to calculate and implement such adjustments. Upon
the discovery by the Servicer, or the Purchaser that the Servicer has failed to adjust a Mortgage
Interest Rate or a Monthly Payment pursuant to the terms of the related Mortgage Note and Mortgage,
the Servicer shall immediately deposit in the Custodial Account from its own funds the amount of
any interest loss caused the Purchaser thereby without reimbursement therefor.
Subsection 11.15 MERS Registration.
The Servicer is authorized and empowered by the Purchaser, in its own name, when the Servicer
believes it appropriate in its best judgement to register any Mortgage Loan on
Exhibit 9-11
the MERS System, or,
with the prior written consent of the Purchaser, cause the removal from the registration of any
Mortgage Loan on the MERS System, to execute and deliver, on behalf of the Purchaser any and all
instruments of assignment and other comparable instruments with respect to such assignment or
re-recording of a Mortgage in the name of MERS, solely as nominee for the Purchaser and its
successors and assigns.
Subsection 11.16 Notification of Maturity Date.
With respect to each Balloon Mortgage Loan, the Servicer shall execute and deliver to the
Mortgagor any and all necessary notices required under applicable law and the terms of the related
Mortgage Note and Mortgage regarding the maturity date and final balloon payment.
Subsection 11.17 Distributions.
On each Remittance Date, the Servicer shall distribute to the Purchaser (i) all amounts
credited to the Custodial Account as of the close of business on the preceding Determination Date,
net of charges against or withdrawals from the Custodial Account pursuant to Subsection 11.05, plus
(ii) all Monthly Advances, if any, which the Servicer is obligated to distribute pursuant to
Subsection 11.19, minus (iii) any amounts attributable to Principal Prepayments received after the related Principal 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. It is understood that, by operation of Subsection 11.04, the
remittance on the first Remittance Date following the related Closing Date is to include principal
collected after the related Cut-off Date through the preceding Determination Date plus interest,
adjusted to the Mortgage Loan Remittance Rate collected through such Determination Date exclusive
of any portion thereof allocable to the period prior to the related Cut-off Date, with the
adjustments specified in (ii), (iii) and (iv) above.
With respect to any remittance received by the Purchaser after the Business Day on which such
payment was due, the Servicer 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 The Chase Manhattan Bank, New York, New York, as its prime lending rate,
adjusted as of the date of each change, plus one percentage point, but in no event greater than the
maximum amount permitted by applicable law. Such interest shall be paid by the Servicer to the
Purchaser on the date such late payment is made and shall cover the period commencing with the day
following such Business Day and ending with the Business Day on which such payment is made, both
inclusive. Such interest shall be remitted along with such late payment. The payment by the
Servicer of any such interest shall not be deemed an extension of time for payment or a waiver of
any Event of Default by the Servicer.
Subsection 11.18 Statements to the Purchaser.
Not later than the fifth (5th) Business Day of each month, the Servicer will
furnish to the Purchaser by any electronic medium the information set forth in Xxxxx Fargo Forms
300 and 301, attached hereto as Exhibit 13-1 and Exhibit 13-2, respectively (or
such other
Exhibit 9-12
information as the Purchaser may reasonably request), provided that such information
shall be in a form acceptable to the Purchaser.
In addition, not more than sixty (60) days after the end of each calendar year, the Servicer
will furnish to 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) listing of the principal balances of
the Mortgage Loans outstanding at the end of such calendar year.
The Servicer 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 the Purchaser pursuant
to any applicable law with respect to the Mortgage Loans and the transactions contemplated hereby.
In addition, the Servicer shall provide the Purchaser with such information concerning the Mortgage
Loans as is necessary for the Purchaser to prepare its federal income tax return as the Purchaser
may reasonably request from time to time.
Subsection 11.19 Monthly Advances by the Servicer.
Not later than the close of business on the Business Day preceding each Remittance Date, the
Servicer shall deposit in the Custodial Account an amount equal to all payments not previously
advanced by the Servicer, 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, adjusted to the Mortgage Loan Remittance Rate, which were due on
a Mortgage Loan and delinquent at the close of business on the related Determination Date;
provided, however, that (i) with respect to a delinquent Balloon Payment, the
Servicer shall be obligated to make advances under this Subsection 11.19 in an amount equal to the
assumed monthly payment that would have been due on the related Due Date based on the original
principal amortization schedule for the such Balloon Mortgage Loan and (ii) with respect to an
Interest Only Mortgage Loan, the Servicer shall be obligated to make advances under this Subsection
11.19 in an amount equal to, for the interest only period of the term of such Mortgage Loan,
scheduled payments of interest thereon, and thereafter, scheduled payments of principal and
interest thereon.
The Servicer’s obligation to make such advances as to any Mortgage Loan will continue through
the earliest of: (i) the last Monthly Payment due prior to the payment in full of the Mortgage
Loan, (ii) the Remittance Date prior to the Remittance Date for the distribution of any Liquidation
Proceeds, Other Insurance Proceeds or Condemnation Proceeds which, in the case of Other Insurance
Proceeds and Condemnation Proceeds, satisfy in full the indebtedness of such Mortgage Loan, and
(iii) the Remittance Date prior to the date the Mortgage Loan is converted to REO Property;
provided, however, that in connection with any Pass-Through transfer involving such Mortgage Loan,
the Servicer shall make Monthly Advances through the Remittance Date prior to the date on which
cash is received in connection with the liquidation of REO Property. In no event shall the
Servicer be obligated to make an advance under this Section 5.03 if at the time of such advance it
deems such advance to be a Nonrecoverable Advance. In connection with a Pass-Through Transfer, if
the Servicer determines that an advance is or would be a Nonrecoverable Advance, the Servicer shall
deliver to the Purchaser an Officer’s Certificate of the Servicer to the effect that a Servicing
Officer has reviewed the related Mortgage File and
Exhibit 9-13
has made the reasonable determination that any
previous and any additional advances would be Nonrecoverable Advances. Furthermore, the Servicer
shall not be required to advance Relief Act Shortfalls.
Subsection 11.20 Real Estate Owned Reports.
Together with the statement furnished pursuant to Subsection 11.18, with respect to any REO
Property, the Servicer shall furnish to the Purchaser on request a statement covering the
Servicer’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 an operating
statement free of cost. Such statement shall be accompanied by such additional information as the
Purchaser shall reasonably request. The cost of producing such additional information shall be
borne by the Purchaser.
Subsection 11.21 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 Servicer shall submit to the Purchaser a
liquidation report with respect to such Mortgaged Property which report may be included with any
other reports prepared by Servicer and delivered to Purchaser pursuant to the terms and conditions of this Agreement and shall be substantially in the form of and contain such
information as is set forth in Exhibit 14 attached hereto or other mutually agreeable
format.
Subsection 11.22 Assumption Agreements.
The Servicer will, 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 to the extent permitted by law; provided, however, that the Servicer shall not
exercise any such rights if prohibited by law or the terms of the Mortgage Note from doing so or if
the exercise of such rights would impair or threaten to impair any recovery under the related
Primary Mortgage Insurance Policy or LPMI Policy, if any. If the Servicer reasonably believes it
is unable under applicable law to enforce such “due-on-sale” clause, the Servicer will enter into
an assumption agreement with the person to whom the Mortgaged Property has been conveyed or is
proposed to be conveyed, pursuant to which such person becomes liable under the Mortgage Note and,
to the extent permitted by applicable state law, the Mortgagor remains liable thereon. Where an
assumption is allowed pursuant to this Subsection 11.22, the Servicer, with the prior written
consent of the primary mortgage insurer, if any, is authorized to enter into a substitution of
liability agreement with the person to whom the Mortgaged Property has been conveyed or is proposed
to be conveyed pursuant to which the original mortgagor is released from liability and such Person
is substituted as Mortgagor and becomes liable under the related Mortgage Note. Any such
substitution of liability agreement shall be in lieu of an assumption agreement.
In connection with any such assumption or substitution of liability, the Servicer shall follow
the underwriting practices and procedures that are consistent with Accepted
Exhibit 9-14
Servicing Practices.
With respect to an assumption or substitution of liability, the Mortgage Interest Rate borne by the
related Mortgage Note, the term of the Mortgage Loan and the outstanding principal amount of the
Mortgage Loan shall not be changed. The Servicer shall notify the Purchaser that any such
substitution of liability or assumption agreement has been completed by forwarding to the Purchaser
or its designee the original of any such substitution of liability or assumption agreement, which
document shall be added to the related Mortgage File and shall, for all purposes, be considered a
part of such Mortgage File to the same extent as all other documents and instruments constituting a
part thereof. Any fee collected by the Servicer for entering into an assumption or substitution of
liability agreement in excess of 1.0% of the unpaid principal balance of the Mortgage Loan shall be
deposited in the Custodial Account pursuant to Subsection 11.04.
Notwithstanding the foregoing paragraphs of this Section or any other provision of this
Agreement, the Servicer 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 Servicer may be restricted by law from preventing, for any reason whatsoever.
For purposes of this Subsection 11.22, 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 11.23 Satisfaction of Mortgages and Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the Servicer of a
notification that payment in full will be escrowed in a manner customary for such purposes, the
Servicer will immediately notify the Purchaser by a certification, which certification shall
include a statement to the effect that all amounts received or to be received in connection with
such payment which are required to be deposited in the Custodial Account pursuant to Subsection
11.04 have been or will be so deposited, of a Servicing Officer and shall request delivery to it of
the portion of the Mortgage File held by the Purchaser. Upon receipt of such certification and
request, the Purchaser or its designee shall within five (5) Business Days release the related
Mortgage Loan Documents to the Servicer and the Servicer shall prepare and process any satisfaction
or release. With respect to any MERS Mortgage Loan, the Servicer is authorized to cause the
removal from the registration on the MERS System of such Mortgage and to execute and deliver, on
behalf of the Purchaser, any and all instruments of satisfaction or cancellation or of partial or
full release. No expense incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the Custodial Account.
In the event the Servicer 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 Servicer, upon written demand, shall
immediately remit to the Purchaser the then unpaid principal balance of the related Mortgage Loan
by deposit thereof in the Custodial Account. The Servicer shall maintain the Fidelity Bond
insuring the Servicer 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 the purpose of collection under any Primary Mortgage Insurance
Exhibit 9-15
Policy or LPMI Policy,
the Purchaser shall, upon request of the Servicer and delivery to the Purchaser or Purchaser’s
designee of a servicing receipt signed by a Servicing Officer, release or cause to be released the
portion of the Mortgage File held by the Purchaser or its designee to the Servicer. Such servicing
receipt shall obligate the Servicer to return the related Mortgage documents to the Purchaser or
its designee when the need therefor by the Servicer 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 Servicer 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 or its designee to the Servicer.
Subsection 11.24 Servicing Compensation.
As compensation for its services hereunder, the Servicer shall be entitled to withdraw from
the Custodial Account or to retain from interest payments on the Mortgage Loans
the amounts provided for as the Servicer’s Servicing Fee. Additional servicing compensation
in the form of assumption fees, as provided in Subsection 11.22, prepayment penalties and late
payment charges or otherwise shall be retained by the Servicer to the extent not required to be
deposited in the Custodial Account. The Servicer shall be required to pay all expenses incurred by
it in connection with its servicing activities hereunder and shall not be entitled to reimbursement
therefor except as specifically provided for herein.
Subsection 11.25 Annual Statement as to Compliance.
The Servicer will deliver to the Purchaser on or before March 15th of each year, beginning
with March 15, 2005, an Officers’ Certificate stating, as to each signatory thereof, that (i) a
review of the activities of the Servicer during the preceding calendar year and of performance
under this Agreement has been made under such officers’ supervision, and (ii) to the best of such
officers’ knowledge, based on such review, the Servicer has fulfilled all of its obligations under
this Agreement throughout such year, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to such officers and the nature and status thereof.
Copies of such statement shall be provided by the Servicer to the Purchaser upon request.
Subsection 11.26 Annual Independent Certified Public Accountants’ Servicing
Report.
On or before March 15th of each year beginning March 15, 2005, the Servicer at its expense
shall cause a firm of independent public accountants which is a member of the American Institute of
Certified Public Accountants to furnish a statement to the Purchaser to the effect that such firm
has examined certain documents and records relating to the Servicer’s
Exhibit 9-16
servicing of mortgage loans
of the same type as the Mortgage Loans pursuant to servicing agreements substantially similar to
this Agreement, which agreements may include this Agreement, and that, on the basis of such an
examination, conducted substantially in accordance with the Uniform Single Attestation Program for
Mortgage Bankers, such firm is of the opinion that the Servicer’s servicing has been conducted in
compliance with the agreements examined pursuant to this Subsection 11.26, except for (i) such
exceptions as such firm shall believe to be immaterial, and (ii) such other exceptions as shall be
set forth in such statement. Copies of such statement shall be provided by the Servicer to the
Purchaser upon request.
Subsection 11.27 Purchaser’s Right to Examine Servicer Records.
The Purchaser shall have the right to examine and audit upon reasonable notice to the
Servicer, during business hours or at such other times as might be reasonable under applicable
circumstances, any and all of the books, records, documentation or other information of the
Servicer, or held by another for the Servicer or on its behalf or otherwise, which relates to the
performance or observance by the Servicer of the terms, covenants or conditions of this Agreement.
The Servicer shall provide to the Purchaser and any supervisory agents or examiners
representing a state or federal governmental agency having jurisdiction over the Purchaser,
including but not limited to OTS, FDIC and other similar entities, access to any documentation
regarding the Mortgage Loans in the possession of the Servicer which may be required by any
applicable regulations. Such access shall be afforded without charge, upon reasonable request,
during normal business hours and at the offices of the Servicer, and in accordance with the federal
government, FDIC, OTS, or any other similar regulations.
Subsection 11.28 Servicer Shall Provide Information as Reasonably
Required.
The Servicer shall furnish to the Purchaser during the term of this Agreement, such periodic,
special or other reports, information or documentation, whether or not provided for herein, as
shall be necessary, reasonable or appropriate in respect to the Purchaser, or otherwise in respect
to the Mortgage Loans and the performance of the Servicer under this Agreement, including any
reports, information or documentation reasonably required to comply with any regulations regarding
any supervisory agents or examiners of the Purchaser all such reports or information to be as
provided by and in accordance with such applicable instructions and directions as the Purchaser may
reasonably request in relation to this Agreement or the performance of the Servicer under this
Agreement. The Servicer agrees to execute and deliver all such instruments and take all such
action as the Purchaser, from time to time, may reasonably request in order to effectuate the
purpose and to carry out the terms of this Agreement.
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 Properties are held, the Servicer 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
Exhibit 9-17
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 Servicer 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.
Exhibit 9-18
EXHIBIT 10
SELLER’S UNDERWRITING GUIDELINES
(Attached)
Exhibit 10-1
EXHIBIT 11
FORM OF ANNUAL CERTIFICATION
I, [NAME OF CERTIFYING INDIVIDUAL], a duly elected and acting officer of Countrywide Home
Loans Servicing, LP (the “Servicer”), hereby certify, pursuant to Section 12 of that certain
Mortgage Loan Purchase and Servicing Agreement, dated as of March 1, 2004 (the “Agreement”), by and
among DLJ Mortgage Capital, Inc. (the “Purchaser”), Countrywide Home Loans, Inc. and the Servicer,
to [ENTITY EXECUTING THE CERTIFICATION REQUIRED PURSUANT TO SECTION 3.02 OF THE XXXXXXXX-XXXXX ACT
OF 2002] (the “Beneficiary”) with respect to the calendar year immediately preceding the date of
this Certificate, as follows:
1. |
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I have reviewed the annual statement of compliance (“Annual Statement of Compliance”)
prepared by Servicer, and the annual independent public accountant’s servicing report made in
accordance with the Uniform Single Attestation Program for Mortgage Bankers (“Annual
Independent Public Accountant’s Servicing Report”), which have been furnished to the
Beneficiary pursuant to the Agreement and any subsequent servicing agreement related thereto
or to the Mortgage Loans (collectively, the “Servicing Agreement”); |
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2. |
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Based on my knowledge, the information in the Annual Statement of Compliance, the Annual
Independent Public Accountant’s Servicing Report and all final servicing reports prepared by
Servicer and delivered to the Beneficiary pursuant to the Servicing Agreement relating to the
servicing of the Mortgage Loans, taken as a whole, does not contain any untrue statement of
material fact or omit to state a material fact necessary to make the statements made, in light
of the circumstances under which such statements were made, not misleading as of the last day
of the period covered by such statements or reports; |
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3. |
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Based on my knowledge, the servicing information required to be provided to the Beneficiary
by the Servicer under the Servicing Agreement has been provided to the Beneficiary; |
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4. |
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I am responsible for reviewing the activities performed by the Servicer under the Servicing
Agreement and based upon the review required by the Servicing Agreement, and except as
disclosed in the Annual Statement of Compliance and the Annual Independent Public Accountant’s
Servicing Report submitted to the Beneficiary, the Servicer has, as of the last day of the
period covered by the Annual Statement of Compliance, fulfilled its obligations under the
Servicing Agreement; and |
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5. |
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I have disclosed to the Beneficiary’s certified public accountants all significant
deficiencies relating to the Servicer’s compliance with the minimum servicing standards in
accordance with a review conducted in compliance with the Uniform Single Attestation Program
for Mortgage Bankers or similar standard as set forth in the Servicing Agreement. |
Exhibit 11-1
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[SERVICER] |
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By: |
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Name: |
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Title: |
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Date: |
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Exhibit 11-2
EXHIBIT 12
FORM OF ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT, dated
, among
, a
corporation (“Assignor”),
, a
corporation (“Assignee”) and
Countrywide Home Loans
Servicing LP, a limited partnership organized under the laws of the State of Texas
(“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:
1. The Assignor hereby grants, transfers and assigns to Assignee all of the right, title and
interest of Assignor, as Purchaser, in, to and under (i) that certain Mortgage Loan Purchase and
Servicing Agreement (the “Purchase and Servicing Agreement”), dated as of ___, 200_, by and
among [Purchaser] (“Purchaser”), Countrywide Home Loans, Inc. and the Company, and (ii) the
Mortgage Loans.
2. The Assignor warrants and represents to, and covenants with, the Assignee that:
a. The Assignor is the lawful owner of the Mortgage Loans with the full right
to transfer the Mortgage Loans free from any and all claims and encumbrances
whatsoever;
b. The Assignor has not received notice of, and has no knowledge of, any
offsets, counterclaims or other defenses available to the Company with respect to
the Purchase and Servicing Agreement or the Mortgage Loans;
c. The Assignor has not waived or agreed to any waiver under, or agreed to any
amendment or other modification of, the Purchase and Servicing Agreement, or the
Mortgage Loans, including without limitation the transfer of the servicing
obligations under the Purchase and Servicing Agreement. The Assignor has no
knowledge of, and has not received notice of, any waivers under or amendments or
other modifications of, or assignments of rights or obligations under, or defaults
under, the Purchase and Servicing Agreement, or the Mortgage Loans; and
d. Neither the Assignor nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of the Mortgage Loans, any interest
in the Mortgage Loans or any other similar security to, or solicited any offer to
buy or accept a transfer, pledge or other disposition of the Mortgage Loans, any
interest in the Mortgage Loans or any other similar security from, or otherwise
approached or negotiated with respect to the Mortgage Loans, any
Exhibit 12-1
interest in the Mortgage Loans or any other similar security with, any person
in any manner, or made any general solicitation by means of general advertising or
in any other manner, or taken any other action which would constitute a distribution
of the Mortgage Loans under the Securities Act of 1933 (the “1933 Act”) or which
would render the disposition of the Mortgage Loans a violation of Section 5 of the
1933 Act or require registration pursuant thereto.
3. The Assignee warrants and represents to, and covenants with, the Assignor and the Company
that:
a. The Assignee agrees to be bound, as Purchaser, by all of the terms,
covenants and conditions of the Purchase and Servicing Agreement, and the Mortgage
Loans, and from and after the date hereof, the Assignee assumes for the benefit of
each of the Company and the Assignor all of the Assignor’s obligations as Purchaser
thereunder;
b. The Assignee understands that the Mortgage Loans have not been registered
under the 1933 Act or the securities laws of any state;
c. The Assignee is acquiring the Mortgage Loans for investment for its own
account only and not for any other person;
d. The Assignee considers itself a substantial, sophisticated institutional
investor having such knowledge of financial and business matters that it is capable
of evaluating the merits and the risks of investment in the Mortgage Loans;
e. The Assignee has been furnished with all information regarding the Mortgage
Loans that it has requested from the Assignor or the Company; and
f. Neither the Assignee nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of the Mortgage Loans, any interest
in the Mortgage Loans or any other similar security to, or solicited any offer to
buy or accept a transfer, pledge or other disposition of the Mortgage Loans, any
interest in the Mortgage Loans or any other similar security from, or otherwise
approached or negotiated with respect to the Mortgage Loans, any interest in the
Mortgage Loans or any other similar security with, any person in any manner, or made
any general solicitation by means of general advertising or in any other manner, or
taken any other action which would constitute a distribution of the Mortgage Loans
under the 1933 Act or which would render the disposition of the Mortgage Loans a
violation of Section 5 of the 1933 Act or require registration pursuant thereto, nor
will it act, nor has it authorized or will it authorize any person to act, in such
manner with respect to the Mortgage Loans.
4. The Company warrants and represents to, and covenants with, the Assignor and the Assignee
as of the date hereof that:
a. The Company has serviced the Mortgage Loans in accordance with the terms of
the Purchase and Servicing Agreement, provided accurate statements pursuant to
Section 11.18 thereof and otherwise complied with all covenants and obligations
thereunder;
b. The Company has taken no action, or omitted to take any required action the
omission of, which would have the effect of impairing any mortgage insurance or
guarantee on the Mortgage Loans; and
c. The Company represents and warrants that as of the date hereof, the
representations and warranties set forth in Section 7.03 of the Purchase Agreement
are true and correct as if such representations and warranties were set forth herein
in full. The Assignee shall be entitled to all of the rights and benefits provided
under the Purchase and Servicing Agreement in the event that any such representation
and warranty is not true and correct as of the date hereof.
5. From and after the date hereof, the Company shall recognize the Assignee as owner of the
Mortgage Loans and will service the Mortgage Loans for the Assignee pursuant to the Purchase and
Servicing Agreement, the terms of which are incorporated herein by reference. It is the intention
of the Assignor, the Company and the Assignee that this Assignment, Assumption and Recognition
Agreement shall be binding upon and for the benefit of the respective successors and assigns of the
parties hereto.
Distributions shall be made by wire transfer of immediately available funds to
for the account of
account number
. Applicable statements should be mailed to
.
Exhibit 12-3
IN WITNESS WHEREOF, the parties have caused this Assignment, Assumption and Recognition Agreement
to be executed by their duly authorized officers as of the date first above written.
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Assignor |
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Assignee |
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By:
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By: |
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Its:
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Its: |
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Taxpayer Identification No. |
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Taxpayer Identification No. |
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Company |
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By:
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, its general partner. |
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By: |
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Its: |
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Taxpayer
Identification No. |
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Exhibit 12-4
EXHIBIT 13-1
FORM OF MONTHLY REMITTANCE ADVICE (XXXXX FORM 300)
Exhibit 13-1
EXHIBIT 13-2
FORM OF MONTHLY REMITTANCE ADVICE (XXXXX FORM 301)
Exhibit 13-2-1
EXHIBIT 14
FORM OF LIQUIDATION REPORT
XXXXX FARGO BANK, N.A.
Form 332
Calculation of Realized Loss
Purpose
To provide the Servicer with a form for the calculation of any Realized Loss (or gain) as a result
of a Mortgage Loan having been foreclosed and Liquidated.
Distribution
The Servicer will prepare the form in duplicate and send the original together with evidence of
conveyance of title and appropriate supporting documentation to the Master Servicer with the
Monthly Accounting Reports which supports the Mortgage Loan’s removal from the Mortgage Loan
Activity Report. The Servicer will retain the duplicate for its own records.
Due Date
With respect to any liquidated Mortgage Loan, the form will be submitted to the Master Servicer no
later than the date on which statements are due to the Master Servicer under Section 4.02 of this
Agreement (the “Statement Date”) in the month following receipt of final liquidation proceeds and
supporting documentation relating to such liquidated Mortgage Loan; provided, that if such
Statement Date is not at least 30 days after receipt of final liquidation proceeds and supporting
documentation relating to such liquidated Mortgage Loan, then the form will be submitted on the
first Statement Date occurring after the 30th day following receipt of final liquidation proceeds
and supporting documentation.
Preparation Instructions
The numbers on the form correspond with the numbers listed below.
1. |
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The actual Unpaid Principal Balance of the Mortgage Loan. |
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2. |
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The Total Interest Due less the aggregate amount of servicing fee that would have been earned
if all delinquent payments had been made as agreed. |
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3-7. |
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Complete as necessary. All line entries must be supported by copies of appropriate
statements, vouchers, receipts, canceled checks, etc., to document the expense. Entries not
properly documented will not be reimbursed to the Servicer. |
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8. |
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Accrued Servicing Fees based upon the Scheduled Principal Balance of the Mortgage Loan as
calculated on a monthly basis. |
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10. |
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The total of lines 1 through 9. |
Credits
11-17. |
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Complete as necessary. All line entries must be supported by copies of the appropriate
claims forms, statements, payment checks, etc. to document the credit. If the Mortgage Loan
is subject to a Bankruptcy Deficiency, the difference between the Unpaid Principal Balance of
the Note prior to the Bankruptcy Deficiency and the Unpaid Principal Balance as reduced by the
Bankruptcy Deficiency should be input on line 16. |
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18. |
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The total of lines 11 through 17. |
Exhibit 14-1
Total Realized Loss (or Amount of Any Gain)
19. The total derived from subtracting line 18 from 10. If the amount represents a
realized gain, show the amount in parenthesis ( ).
Exhibit 14-2
XXXXX FARGO BANK, N.A.
CALCULATION OF REALIZED LOSS
XXXXX FARGO BANK, N.A. Trust:
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Prepared by: |
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Date: |
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Phone: |
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Servicer Loan No.
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Servicer Name
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Servicer Address |
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XXXXX FARGO BANK, N. A. |
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Loan No. |
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Borrower’s Name: |
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Property |
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Address: |
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Liquidation and Acquisition Expenses: |
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Actual Unpaid Principal Balance of Mortgage Loan |
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Interest accrued at Net Rate |
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(2 |
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Attorney’s Fees |
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Taxes |
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Property Maintenance |
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MI/Hazard Insurance Premiums |
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Hazard Loss Expenses |
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Accrued Servicing Fees |
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Other (itemize) |
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$ |
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Total Expenses |
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Credits: |
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Escrow Balance |
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HIP Refund |
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Rental Receipts |
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(13 |
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Hazard Loss Proceeds |
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(14 |
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Primary Mortgage Insurance Proceeds |
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(15 |
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Proceeds from Sale of Acquired Property |
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Other (itemize) |
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(17 |
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Total Credits |
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$ |
(18 |
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Total Realized Loss (or Amount of Gain) |
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$ |
(19 |
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Exhibit 14 -3
COUNTRYWIDE-SEQUOLA TO TRUSTEE:DLJ
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
For
Mortgage Loan Purchase and Servicing Agreement
THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT, dated as of February 1, 2006 (the
“Assignment”), is entered into among Sequoia Residential Funding, Inc. (the “Assignor”),
Countrywide Home Loans, Inc., as the seller (the “Seller”), Countrywide Home Loans Servicing L.P.,
as the servicer (“Servicer”), and U.S. Bank National Association (“U.S. Bank”) as Trustee under a
Pooling and Servicing Agreement dated as of January 1, 2006 (the “Pooling and Servicing
Agreement”), among the Assignor, as Depositor, U.S. Bank (in such Trustee capacity, the “Assignee”)
and Xxxxx Fargo Bank, N. A., as Master Servicer (the “Master Servicer”) and Trust Administrator.
SECTION 35. RECITALS
WHEREAS, DLJ Mortgage Capital, Inc. (“DLJ”), Seller and Servicer have entered into a certain
Mortgage Loan Purchase and Servicing Agreement dated as of March 1, 20 (the “Mortgage Loan
Purchase and Servicing Agreement”) and pursuant to the Purchase Price and Terms Letters(s)
issued under the Mortgage Loan Purchase and Servicing Agreement and listed in Appendix A
hereto (the “Purchase Price and Terms Letter(s),” together with the Purchase and Servicing
Agreement, the “Agreements”) DLJ acquired from the Seller certain Mortgage Loans (the “Mortgage
Loans”) and Servicer agreed to service such Mortgage Loans; and
WHEREAS, DLJ has previously sold, assigned and transferred to RWT all of its right, title and
interest in certain of the Mortgage Loans (the “Specified Mortgage Loans”) which are listed on
the mortgage loan schedule attached as Exhibit I hereto (the “Specified Mortgage Loan
Schedule”) and its rights under the Agreements with respect to the Specified Mortgage Loans; and
WHEREAS, RWT has previously sold, assigned and transferred all of its right, title and
interest in the Specified Mortgage Loans and certain rights under the Agreements with respect to
the Specified Mortgage Loans to the Assignor; and
4
COUNTRYWIDE-SEQUOLA TO TRUSTEE:DLJ
WHEREAS, the parties hereto have agreed that the Specified Mortgage Loans shall be subject to
the terms of this Assignment.
NOW, THEREFORE, in consideration of the mutual promises contained herein and other good and
valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the parties
agree as follows:
5
1. Assignment and Assumption.
(a) Effective on and as of the date hereof, the Assignor hereby pledges, assigns and transfers
to the Assignee all of its right, title and interest in the Specified Mortgage Loans and all of its
rights (but none of the Purchaser’s, as defined in the Purchase and Servicing Agreement,
obligations) provided under the Agreements to the extent relating to the Specified Mortgage Loans,
the Assignee hereby accepts such assignment from the Assignor, and the Seller and the Servicer
hereby acknowledge such assignment and assumption.
(b) Effective on and as of the date hereof, the Assignor represents and warrants to the
Assignee that the Assignor has not taken any action that would serve to impair or encumber the
Assignee’s interest in the Specified Mortgage Loans since the date of the Assignor’s acquisition
of the Specified Mortgage Loans.
2. Recognition of the Assignee.
From and after the date hereof, subject to Section 3 below, the Seller and the Servicer shall
recognize the Assignee as the holder of the rights and benefits of the Purchaser, as defined in
the Purchase and Servicing Agreement, with respect to the Specified Mortgage Loans and the
Servicer will service the Specified Mortgage Loans for the Assignee as if the Assignee and the
Servicer had entered into a separate servicing agreement for the servicing of the Specified
Mortgage Loans in the form of the Agreements (as amended hereby) with the Assignee as the
Purchaser thereunder, the terms of which Agreements are incorporated herein by reference and
amended hereby. It is the intention of the parties hereto that this Assignment will be a
separate and distinct agreement, and the entire agreement, between the parties hereto to the
extent of the Specified Mortgage Loans and shall be binding upon and for the benefit of the
respective successors and assigns of the parties hereto.
3. Amendment to the Agreements.
The Agreements are hereby amended as set forth in Appendix B and Appendix C hereto with
respect to the Specified Mortgage Loans.
4. Representations and Warranties.
(a) The Assignee represents and warrants that it is a sophisticated investor able to
evaluate the risks and merits of the transactions contemplated hereby, and that it has not
relied in connection therewith upon any statements or representations of the Seller or the
Assignor other than those contained in the Agreements or this Assignment.
(b) Each of the parties hereto represents and warrants that it is duly and legally
authorized to enter into this Assignment.
(c) Each of the parties hereto represents and warrants that this Assignment has been duly
authorized, executed and delivered by it and (assuming due authorization, execution and delivery
thereof by each of the other parties hereto) constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms, except as such enforcement may
be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors’ rights generally and by general equitable principles (regardless of
whether such enforcement is considered in a proceeding in equity or at law).
6
5. Continuing Effect.
Except as contemplated hereby, the Agreements shall remain in full force and effect in
accordance with their terms. This Assignment constitutes a Reconstitution Agreement as
contemplated in Section 12 of the Mortgage Loan Purchase and Servicing Agreement and the
Reconstitution Date shall be the date hereof with respect to the Specified Mortgage Loans listed
on Exhibit I on the date hereof.
6. Governing Law.
This Assignment and the rights and obligations hereunder shall be governed by and construed in
accordance with the internal laws of the State of New York.
7. Notices.
Any notices or other communications permitted or required under the Agreements to be made to the
Assignor and Assignee shall be made in accordance with the terms of the Agreements and shall be
sent to the Assignor and Assignee as follows:
Sequoia Residential Funding, Inc.
Xxx Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxxx, XX 00000
U.S. Bank National Association
Corporate Trust Services — EP-MN-WS3D
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
or to such other address as may hereafter be furnished by the Assignor or Assignee to the other
parties in accordance with the provisions of the Agreements.
8. Counterparts.
This Assignment may be executed in counterparts, each of which when so executed shall be deemed
to be an original and all of which when taken together shall constitute one and the same
instrument.
9. Definitions.
Any capitalized term used but not defined in this Assignment has the same meaning as in the
Agreements.
7
10. Master Servicer.
The Seller and the Servicer hereby acknowledge that the Assignee has appointed Xxxxx Fargo Bank,
N. A. to act as Master Servicer under the Pooling and Servicing Agreement and hereby agree to
treat all inquiries, instructions, authorizations and other communications from the Master
Servicer as if the same had been received from the Assignee. The Master Servicer, acting on
behalf of the Assignee, shall have the rights of the Assignee as the Purchaser as defined in and
granted under the Agreements to enforce the obligations of the Servicer thereunder.
11. Pooling and Servicing Agreement.
Each of the parties hereto hereby acknowledges that as of the date hereof the Specified Mortgage
Loans will be securitized under the Pooling and Servicing Agreement which is attached hereto as
Exhibit II.
12. Waiver.
The Assignor hereby waives its rights to indemnification under Section 6.01 of the Purchase and
Servicing Agreement for failure of the Seller or Servicer to perform its obligations in
accordance with Section 3 of this Assignment. Notwithstanding the foregoing, the Seller or
Servicer, as applicable, shall continue to indemnify and hold harmless the Assignor and the
Assignee, against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable
and necessary attorneys’ fees and related costs, judgments, and any other costs, fees and
expenses that the Assignor and the Assignee may sustain in any way related to any material
misstatement or omission, gross negligence, bad faith or willful misconduct of the Seller or
Servicer, as applicable, in connection with complying with Section 3 of this Assignment.
13. Indemnification.
Notwithstanding anything to the contrary, the Assignor shall indemnify the Seller and the
Servicer 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 Seller and Servicer may sustain in any way related to (a)
actions or inactions of the Seller or the Servicer which were taken or omitted upon the
instruction or direction of the Assignor and/or Assignee, or (b) the failure of the Assignor or
Assignee to perform its obligations under this Assignment and the Agreement.
[remainder of page intentionally left blank]
8
IN WITNESS WHEREOF, the parties hereto have executed this Assignment the day and year first
above written.
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ASSIGNOR: |
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SEQUOIA RESIDENTIAL FUNDING, INC. |
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/s/ SEQUOIA RESIDENTIAL FUNDING, INC. |
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By: |
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Name: |
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ASSIGNEE: |
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U.S. BANK NATIONAL ASSOCIATION |
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/s/ U.S. BANK NATIONAL ASSOCIATION |
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SELLER: |
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COUNTRYWIDE HOME LOANS, INC. |
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/s/ COUNTRYWIDE HOME LOANS, INC. |
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By: |
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SERVICER: |
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COUNTRYWIDE HOME LOANS |
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SERVICING, L.P. |
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/s/ COUNTRYWIDE HOME LOANS |
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SERVICING, L.P. |
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9
APPENDIX A
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Purchase Price and Terms Letter(s)
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Dates |
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APPENDIX B
[Reg AB Addendum Provisions to be added as well as any other deal specific provisions requested
by the parties......]
1. The following definition is revised to read as follows:
“Servicing Fee Rate: With respect to any Mortgage Loan, in the case of a
mortgage loan that has not reached its first adjustment date, 0.25% annually or (2) in the
case of a mortgage loan that has reached its first adjustment date, 0.375% annually.”
2. Section 7.02 is hereby revised to delete the “and” at the end of Section 7.02(lvi),
deleting the period at the end of Section 7.02(lvii) and replacing it with a “;” and adding the
following representations and warranties to the end of such section:
“(lviii) No Mortgage Loan which is secured by property located in the State of New
Mexico is a “High-Cost Home Loan” as defined in the New Mexico Home Loan Protection Act,
which became effective January 1, 2004;
(lix) No Mortgage Loan which is secured by property located in the State of Kentucky is
a “High-Cost Home Loan” as defined in the Kentucky House Xxxx 287, which became effective
June 24, 2003;
(lx) No Mortgage Loan which is secured by property located in the Commonwealth of
Massachusetts is a “High Cost Home Loan” as defined in Part 40 and Part 32, 209 C.M.R. §§
32.00 et seq. and 209 C.M.R. §§ 40.01 et seq., which became
effective March 22, 2001 and amended from time to time; and
(lxi) No Mortgage Loan that is secured by property located in the State of Illinois is
a “High-Risk Home Loan” as defined in the Illinois High Risk Home Loan Act effective January
1, 2004 (815 Ill. Comp. Stat. 137/1 et seq.); and none of the Mortgage Loans that are
secured by property located in the State of Illinois are in violation of the provisions of
the Illinois Interest Act (815 Ill. Comp. Stat. 205/1 et. seq.).
3. The first sentence of the second full paragraph of SubSection 11.19 is hereby deleted in
its entirety and replaced by the following:
“The Servicer’s obligation to make such advances as to any Mortgage Loan will continue
through the earliest of: (i) the last Monthly Payment due prior to the payment in full of
the Mortgage Loan, (ii) the Remittance Date prior to the Remittance Date for the
distribution of any Liquidation Proceeds, Other Insurance Proceeds or Condemnation Proceeds
which, in the case of Other Insurance Proceeds and Condemnation Proceeds, satisfy in full
the indebtedness of such Mortgage Loan, and (iii) the Remittance Date prior to the date the
Mortgage Loan is converted to REO Property; provided, however, that in connection with any
Pass-Through transfer involving such Mortgage Loan, the Servicer shall make Monthly Advances
through the Remittance Date following the date on which cash is received in connection with
the liquidation of REO Property.”
APPENDIX C
[Reg AB Addendum Provisions]
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1. |
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The following definition is revised to read as follows: |
“Reconstitution Agreements: The agreement or agreements entered into by the
Servicer and the Purchaser and/or certain third parties on the Reconstitution Date
or Dates with respect to any or all of the Specified Mortgage Loans serviced
hereunder, in connection with a Whole Loan Transfer or a Pass-Through Transfer as
set forth in Section 12 of the Mortgage Loan Purchase and Servicing Agreement. Such
agreement or agreements shall prescribe the rights and obligations of the Servicer
in servicing the related Specified Mortgage Loans.”
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The Agreements are revised to include the following definitions: |
“Commission: The United States Securities and Exchange Commission.
Company Information: As defined in Subsection 35.07(a)(i)(A).
Depositor: The depositor, as such term is defined in Regulation AB, with
respect to any Securitization Transaction.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Master Servicer: With respect to a Securitization Transaction, the “master
servicer”, if any, identified by the Purchaser and identified in related transaction
documents.
Qualified Correspondent: Any Person from which the Seller purchased
Mortgage Loans, provided that the following conditions are satisfied: (i) such
Mortgage Loans were either (x) 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 or (y) individually
re-underwritten by the Seller to the Designated Guidelines at the time such Mortgage
Loans were acquired by the Seller; (ii) 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 (iii) 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
either Persons from which it purchased mortgage loans properly applied the
underwriting criteria designated by the Seller or the Mortgage Loans purchased by
the Seller substantially complied with the Designated Guidelines.
Reconstitution: Any Securitization Transaction or Whole Loan Transfer.
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.
Securities Act: The Securities Act of 1933, as amended.
Securitization Transaction. Any transaction subject to Regulation AB
involving either (1) a sale or other transfer of some or all of the Specified
Mortgage Loans directly or indirectly to an issuing entity in connection with an
issuance of publicly offered, rated mortgage-backed securities or (2) an issuance of
publicly offered, rated 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 Specified Mortgage Loans.
Servicing Criteria: The “servicing criteria” set forth in Item 1122(d) of
Regulation AB, as such may be amended from time to time.
Static Pool Information: Static pool information as described in Item
1105(a)(1)-(3) and 1105(c) of Regulation AB.
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 Specified Mortgage Loans
but performs one or more discrete functions identified in Item 1122(d) of Regulation
AB with respect to Specified Mortgage Loans under the direction or authority of the
Servicer or a Subservicer.
Subservicer: Any Person that services Specified Mortgage Loans on behalf of
the Servicer 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 Servicer under this
Agreement or any Reconstitution Agreement that are identified in Item 1122(d) of
Regulation AB.
Third-Party Originator: Each Person, other than a Qualified Correspondent,
that originated Specified Mortgage Loans acquired by the Seller.”
3. |
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The Agreements are further revised to include the following new Section 35: |
“SECTION 35.
Compliance With Regulation AB.
Subsection 35.01. Intent of the Parties; Reasonableness.
The Assignee, the Seller and the Servicer acknowledge and agree that the purpose of
Section 35 of this Agreement is to facilitate compliance by the Assignee and any Depositor
with the provisions of Regulation AB and related rules and regulations of the Commission.
Neither the Assignee nor any Depositor shall exercise its right to request delivery of
information or other performance under these provisions other than in good faith, or for
purposes other than compliance with the Securities Act, the Exchange Act and the rules and
regulations of the Commission thereunder. The Seller and the Servicer acknowledge that
interpretations of the requirements of Regulation AB may change over time, whether due to
interpretive guidance provided by the Commission or its staff or otherwise or reasonable
advice of counsel acceptable to the Assignee and the Seller and the Servicer agree to
negotiate in good faith with the Assignee or any Depositor with regard to any reasonable
requests for delivery of information under these provisions on the basis of evolving
interpretations of Regulation AB. In connection with any Securitization Transaction, the
Seller and the Servicer shall cooperate fully with the Assignee to deliver to the Assignee
(including any of its assignees or designees) and any Depositor, any and all statements,
reports, certifications, records and any other information necessary to permit the Assignee
or such Depositor to comply with the provisions of Regulation AB, together with such
disclosures relating to the Seller, the Servicer, any Subservicer, any Third-Party
Originator and the Specified Mortgage Loans, or the servicing of the Specified Mortgage
Loans, necessary in order to effect such compliance.
The Assignee agrees that it will cooperate with the Seller and Servicer and provide
sufficient and timely notice of any information requirements pertaining to a Securitization
Transaction. The Assignee will make all reasonable efforts to limit requests for
information, reports or any other materials to items required for compliance with Regulation
AB, and shall not request information which is not required for such compliance.
Subsection 35.02. Additional Representations and Warranties of the Seller and the
Servicer.
(a) Each of the Seller and Servicer shall be deemed to represent to the Purchaser and
to any Depositor, as of the date on which information is first provided to the Purchaser or
any Depositor under Subsection 35.03 that, except as disclosed in writing to the Purchaser
or such Depositor prior to such date: (i) the Seller and the Servicer are not aware and
have 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 or Servicer; (ii) the Servicer 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 Servicer has been disclosed or reported by the Servicer; (iv)
no material changes to the Servicer’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 Specified Mortgage Loans have
occurred during the three-year period immediately preceding the related Securitization
Transaction; (v) there are no aspects of the Servicer’s financial condition that could have
a material adverse effect on the performance by the Servicer 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, the
Servicer, any Subservicer or any Third-Party Originator; and (vii) there are no
affiliations, relationships or transactions relating to the Seller, the Servicer, 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 Assignee or any Depositor on any date following the date on
which information is first provided to the Assignee or any Depositor under Subsection 35.03,
each of the Seller and the Servicer shall, use its reasonable best efforts to within five
(5) Business Days, but in no event later than ten (10) Business Days following such request,
confirm in writing the accuracy of the representations and warranties set forth in paragraph
(a) of this Section 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 35.03. Information to Be Provided by the Seller and the Servicer.
In connection with any Securitization Transaction the Seller and the Servicer, as
applicable, shall (i) use its reasonable best efforts to within five (5) Business Days, but
in no event later than ten (10) Business Days, following request by the Assignee or any
Depositor, provide to the Assignee and such Depositor (or, as applicable, cause each
Third-Party Originator and each Subservicer to provide), in writing reasonably required for
compliance with Regulation AB, the information and materials specified in paragraphs (a),
(b), (c) and (f) of this Subsection 35.03, and (ii) as promptly as practicable following
notice to or discovery by the Seller or Servicer, provide to the Assignee and any Depositor
(as required under Regulation AB) the information specified in paragraph (d) of this
Subsection 35.03.
(a) If so requested by the Assignee or any Depositor, the Seller shall provide such
information regarding (i) the Seller, as originator of the Specified Mortgage Loans
(including as an acquirer of Specified Mortgage Loans from a Qualified Correspondent, if
applicable), or (ii) as applicable, each Third-Party Originator, and (iii) as applicable,
each Subservicer, as is requested for the purpose of compliance with Items 1103(a)(1), 1105
(subject to paragraph (b) below), 1110, 1117 and 1119 of Regulation AB. Such information
shall include, at a minimum:
(A) the originator’s form of organization;
(B) to the extent material, 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 Specified Mortgage Loans; if material,
information regarding the size and composition of the originator’s origination
portfolio; and information that may be material, to an analysis of the performance of the
Specified Mortgage Loans, including the originators’ credit-granting or underwriting
criteria for
mortgage loans of similar type(s) as the Specified Mortgage Loans and such
other information as the Assignee or any Depositor may reasonably request for the purpose of
compliance with Item 1110(b)(2) of Regulation AB;
(C) a description of any material legal or governmental proceedings pending (or known
to be contemplated by a governmental authority) against the Seller, each Third-Party
Originator, as applicable, and each Subservicer; and
(D) a description of any affiliation or relationship between the Seller, each
Third-Party Originator, if applicable, each Subservicer and any of the following parties to
a Securitization Transaction, as such parties are identified to the Seller by the Assignee
or any Depositor in writing within in ten days in advance of such Securitization
Transaction:
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the sponsor; |
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the depositor; |
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the issuing entity; |
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any servicer; |
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any trustee; |
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any originator; |
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any significant obligor; |
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any enhancement or support provider; and |
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any other material transaction party. |
(b) If so requested by the Assignee or any Depositor and as Required under Regulation
AB, 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 Specified Mortgage Loans, as reasonably identified by the Assignee as provided below)
originated by (i) the Seller, if the Seller is an originator of Specified Mortgage Loans
(including as an acquirer of Specified Mortgage Loans from a Qualified Correspondent, if
applicable), and/or (ii) as applicable, each Third-Party Originator. Such Static Pool
Information shall be prepared by the Seller (or, if applicable, the 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, as applicable) Static Pool Information with respect to
more than one mortgage loan type, the Assignee 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 Assignee 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.
If so requested by the Assignee 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), procedures letters of certified public accountants 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,
if applicable, Third-Party Originator’s originations or purchases, to calendar months
commencing January 1, 2006, as the Assignee or such Depositor shall reasonably request.
Such statements and letters shall be addressed to and be for the benefit of such parties as
the Assignee or such Depositor and the Seller may mutually agree upon as reliant on the
Static Pool Information, which may include, by way of example, any Sponsor, any Depositor,
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 Assignee or such Depositor.
(c) If reasonably requested by the Assignee or any Depositor, the Servicer shall
provide such information regarding the Servicer, as servicer of the Specified Mortgage
Loans, and each Subservicer (each Servicer and each Subservicer, for purposes of this
paragraph, a “Servicer”), as is reasonably requested for the purpose of compliance with
Items 1108 of Regulation AB. Such information shall include, at a minimum:
(A) the Servicer’s form of organization;
(B) a description of how long the Servicer has been servicing residential mortgage
loans; a general discussion of the Servicer’s experience in servicing assets of any type as
well as a more detailed discussion of the Servicer’s experience in, and procedures for, the
servicing function it will perform under this Agreement and any Reconstitution Agreements;
information regarding the size, composition and growth of the Servicer’s portfolio of
residential mortgage loans of a type similar to the Specified Mortgage Loans and information
on factors related to the Servicer that may be material, to any analysis of the servicing of
the Specified 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
Specified 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 Assignee or any Depositor may reasonably request
for the purpose of compliance with Item 1108(b)(2) of Regulation AB;
(C) a description of any material changes during the three-year period immediately
preceding the related Securitization Transaction to the Servicer’s policies or procedures
with respect to the servicing function it will perform under this Agreement and any
Reconstitution Agreements for mortgage loans of a type similar to the Specified 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 Servicer of its servicing
obligations under this Agreement or any Reconstitution Agreement;
(E) information regarding advances made by the Servicer on the Specified 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 Specified
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; and
(H) information as to how the Servicer defines or determines delinquencies and
charge-offs, including the effect of any grace period, re-aging, restructuring, partial
payments considered current or other practices with respect to delinquency and loss
experience.
(d) If reasonably requested by the Assignee or any Depositor for
the purpose of satisfying its reporting obligation under the Exchange Act with
respect to any class of asset-backed securities, each of the Seller and the Servicer,
as applicable, shall (or shall cause each Subservicer and, if applicable, any Third-Party Originator to) (i)
notify the Assignee and any Depositor in writing of (A) any material
litigation or governmental proceedings pending against the Seller,
the Servicer, any Subservicer or any Third-Party Originator and (B)
any affiliations or relationships that develop following the closing
date of a Securitization Transaction between the Seller, the
Servicer, 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, and (ii) provide to the Assignee and any
Depositor a description of such proceedings, affiliations or relationships.
(e) As a condition to the succession to the Servicer or any Subservicer as servicer or
subservicer under this Agreement or any applicable Reconstitution Agreement related thereto
by any Person (i) into which the Servicer or such Subservicer may be merged or consolidated,
or (ii) which may be appointed as a successor to the Servicer or any Subservicer, the
Servicer shall provide to the Assignee and any Depositor, at least 15 calendar days prior to
the effective date of such succession or appointment, (x) written notice to the Assignee and
any Depositor of such succession or appointment and (y) in writing, all information
reasonably requested by the Assignee 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 Servicer, is obligated to provide pursuant
to other provisions of this Agreement, if reasonably requested by the Assignee or Depositor,
and to the extent permitted by applicable law, the Servicer shall provide such information
which is reasonably available to the Servicer without unreasonable effort or expense,
regarding the performance or servicing of the Specified Mortgage Loans as is reasonably
required to facilitate preparation of distribution reports in accordance with Item 1121 of
Regulation AB.
(g) If reasonably requested by the Assignee or any Depositor, the Seller and the
Servicer shall provide to the Assignee or any Depositor, such additional information as they
may reasonably request, including evidence of the authorization of the person signing any
certification or statement, financial information and reports, and such other information
related to the Seller or Servicer or its performance hereunder.
Subsection 35.04. Servicer Compliance Statement.
On or before March 5 of each calendar year, commencing in 2007, the Servicer shall
deliver to the Assignee, any Master Servicer and any Depositor a statement of compliance
addressed to the Assignee and such Depositor and signed by an authorized officer of the
Servicer, to the effect that (i) a review of the Servicer’s servicing activities during the
immediately preceding calendar year (or applicable portion thereof) and of its performance
under the servicing provisions of 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 Servicer has fulfilled all of its
servicing 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 35.05. Service Report on Assessment of Compliance and Attestation.
(a) On or before March 5 of each calendar year, commencing in 2007, the Servicer shall:
(i) deliver to the Assignee, any Master Servicer and any Depositor a report
regarding the Servicer’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 Assignee and such Depositor and signed by an
authorized officer of the Servicer, and shall address each of the applicable
Servicing Criteria as specified on the form of certification attached as Exhibit III
hereto.
(ii) deliver to the Assignee and any Depositor a report of a registered public
accounting firm that attests to, and reports on, the assessment of compliance made
by the Servicer 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 Servicer
pursuant to Subsection 35.06(b) to be “participating in the servicing function”
within the meaning of Item 1122 of Regulation AB (each, a “Participating Entity”),
to deliver to the Assignee and any Depositor an assessment of compliance and
accountants’ attestation as and when provided in paragraphs (a) and (b) of this
Section; and
(iv) deliver to the Assignee and any Depositor or 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 in the form attached hereto as Exhibit IV.
The Servicer acknowledges that the party identified in clause (a)(iv) above may rely on
the certification provided by the Servicer pursuant to such clause in signing a Sarbanes
Certification and filing such with the Commission.
(b) Each assessment of compliance provided by a Subservicer pursuant to Subsection
35.05(a)(i) shall address each of the applicable Servicing Criteria specified on a
certification substantially in the form of Exhibit III hereto delivered to the Assignee
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 Participating Entity pursuant to Subsection 35.05(a)(iii) need
not address any elements of the Servicing Criteria other than those specified by the
Servicer pursuant to Subsection 35.06.
Subsection 35.06. Use of Subservicers and Subcontractors.
The Servicer shall not hire or otherwise utilize the services of any Subservicer to
fulfill any of the obligations of the Servicer under this Agreement or any related
Reconstitution Agreement unless the Servicer complies with the provisions of paragraph (a)
of this Section. The Servicer 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 Servicer under this
Agreement or any Reconstitution Agreement unless the Servicer complies with the provisions
of paragraph (b) of this Section.
(a) It shall not be necessary for the Servicer to seek the consent of the Assignee or
any Depositor to the utilization of any Subservicer. If required by Regulation AB, after
reasonable notice from the Assignee of the parties involved in the Assignee’s Securitization
Transaction, the Servicer shall cause any Subservicer used by the Servicer (or by any
Subservicer) for the benefit of the Assignee and any Depositor to comply with the provisions
of this Section and with Subsections 35.02, 35.03(c) and (e), 35.04, 35.05 and 35.07 of this
Agreement, and to provide the information required with respect to such Subservicer under
Subsection 35.03(d) of this Agreement. The Servicer shall be responsible for obtaining from
each Subservicer and delivering to the Assignee and any Depositor any servicer compliance
statement required to be delivered by such Subservicer under Subsection 35.04, any
assessment of compliance and attestation required to be delivered by such Subservicer under
Subsection 35.05 and any certification required to be delivered to the Person that will be
responsible for signing the Sarbanes Certification under Subsection 35.05 as and when
required to be delivered.
(b) It shall not be necessary for the Servicer to seek the consent of the Assignee or
any Depositor to the utilization of any Subcontractor. If required by Regulation AB, after
reasonable notice from the Assignee of the parties involved in the Assignee’s Securitization
Transaction, the Servicer shall promptly upon request provide to the Assignee and any
Depositor (or any designee of the Depositor, such as a master servicer or administrator) a
written description of the role and function of each Subcontractor utilized by the Servicer
or any Subservicer, specifying (i) the identity of each such Subcontractor, (ii) which (if
any) of such Subcontractors are Participating Entities, and (iii) which elements of the
Servicing Criteria will be addressed in assessments of compliance provided by each
Participating Entity identified pursuant to clause (ii) of this paragraph.
The Servicer shall cause any such Participating Entity used by the Servicer (or by any
Subservicer) for the benefit of the Purchaser and any Depositor to comply with the
provisions of Subsections 35.05 and 35.07 2(e) of this Agreement. The Servicer shall be
responsible for obtaining from each Participating Entity and delivering to the Assignee and
any Depositor assessment of compliance and attestation required to be delivered by such
Participating Entity under Subsection 35.05, in each case as and when required to be
delivered.
Subsection 35.07. Indemnification; Remedies.
(a) Each of the Seller and the Servicer shall indemnify the Assignee and each of the
following parties participating in a Securitization Transaction: each sponsor and issuing
entity; the Master Servicer, each Person responsible for the 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
Person who controls any of such parties (within the meaning of Section 15 of the Securities
Act and Section 20 of the Exchange Act) and any affiliated broker/dealer directly involved
in the Securitization Transaction; and the respective present and former directors, officers
and employees of each of the foregoing and of the Depositor, and shall hold each of them
harmless from and against any losses, damages, penalties, fines,
forfeitures, legal fees and expenses and related costs, judgments, and any other costs, fees
and expenses that any of them may sustain arising out of or based upon:
(i)(A) any untrue statement of a material fact contained or alleged to be
contained in any written information, written report, certification or other
material provided under this Agreement by or on behalf of the Seller or Servicer, as
applicable, or provided under this Agreement by or on behalf of any Subservicer,
Participating Entity or, if applicable, Third-Party Originator (collectively, the
“Company Information”), or (B) the omission or alleged omission to state in the
Company Information a material fact required to be stated in the Company Information
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, by way of
clarification, that clause (B) of this paragraph shall be construed solely by
reference to the Company Information and not to any other information communicated
in connection with a sale or purchase of securities, without regard to whether the
Company Information or any portion thereof is presented together with or separately
from such other information;
(ii) any failure by the Servicer, any Subservicer, any Participating Entity or
any Third-Party Originator to deliver any information, report, certification,
accountants’ letter or other material when and as required under this Agreement,
including the failure to by the Servicer to identify pursuant to Subsection 35.06(b)
any Participating Entity; or
(iii) any breach by the Seller or the Servicer, as applicable, of a
representation or warranty set forth in Subsection 35.02(a) or in a writing
furnished pursuant to Subsection 35.02(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 or the Servicer, as
applicable, of a representation or warranty in a writing furnished pursuant to
Subsection 35.02(b) to the extent made as of a date subsequent to such closing date;
or
(iv) the gross negligence of the Servicer in connection with its performance
under Section 35.04 or Section 35.05 of this APPENDIX C Regulation AB Addendum.
This indemnification shall survive the termination of this Agreement or any party to
this Agreement.
In the case of any failure of performance described in clause (a)(ii) of this Section,
the Seller or the Servicer, as applicable, shall promptly reimburse the Assignee, any
Depositor, as applicable, and each Person responsible for the 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, Servicer, any Subservicer, any Participating Entity or any Third-Party Originator.
(b) (i) Any failure by the Seller or the Servicer, any Subservicer, any Participating
Entity or any Third-Party Originator to deliver any information, report, certification,
accountants’ letter or other material when and as required under this Agreement, which
continues unremedied for nine (9) Business Days after receipt by the Seller or the Servicer,
as applicable, and the applicable Subservicer, Subcontractor, or Third-Party Originator of
written notice of such failure from the Assignee or Depositor shall, except as provided in
clause (B) of this paragraph, constitute an Event of Default with respect to the Seller or
the Servicer, as applicable, under this Agreement and any applicable Reconstitution
Agreement, and shall entitle the Purchaser or Depositor, as applicable, in its sole
discretion to terminate the rights and obligations of the Servicer under this Agreement
and/or any applicable Reconstitution Agreement related thereto without payment
(notwithstanding anything in this Agreement or any applicable Reconstitution Agreement
related thereto to the contrary) of any compensation to the Servicer; provided, however it
is understood that the Servicer shall remain entitled to receive reimbursement for all
unreimbursed Monthly Advances and Servicing Advances made by the Servicer under this
Agreement and/or any applicable Reconstitution Agreement. Notwithstanding anything to the
contrary set forth herein, 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 Servicer, such provision shall be given effect.
(ii) Any failure by the Servicer, any Subservicer or any Participating Entity to
deliver any information, report, certification or accountants’ letter required under
Regulation AB when and as required under Subsection 35.04 or 35.05, including any failure by
the Servicer to identify a Participating Entity, 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
Servicer under this Agreement and any applicable Reconstitution Agreement, and shall entitle
the Assignee or Depositor, as applicable, in its sole discretion to terminate the rights and
obligations of the 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 Servicer; provided, however it is understood that the Servicer shall
remain entitled to receive reimbursement for all unreimbursed Monthly Advances and Servicing
Advances made by the Servicer under this Agreement and/or any applicable Reconstitution
Agreement. Notwithstanding anything to the contrary set forth herein, 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
Servicer, such provision shall be given effect.
(iii) The Servicer shall promptly reimburse the Assignee (or any designee of the
Assignee, such as a master servicer) and any Depositor, as applicable, for all
reasonable
expenses incurred by the Assignee (or such designee) or such Depositor, as such are
incurred, in connection with the termination of the Servicer and the transfer of servicing
of the Specified Mortgage Loans to a successor servicer. The provisions of this paragraph
shall not limit whatever rights the Servicer, the Assignee 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.
(c) The Assignee agrees to indemnify and hold harmless the Seller, the Servicer, any
Subservicer, any Participating Entity, and, if applicable, any Third-Party Originator, each
Person who controls any of such parties (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 and employees of each of the foregoing from and against any losses, damages,
penalties, fines, forfeitures, legal fees and expenses and related costs, judgments, and any
other costs, fees and expenses that any of them may sustain arising out of or based upon any
untrue statement or alleged untrue statement of any material fact contained in any filing
with the Commission or the omission or alleged omission to state in any filing with the
Commission a material fact required to be stated or necessary to be stated in order to make
the statements therein, in the light of the circumstances under which they were made, not
misleading, in each case to the extent, but only to the extent, that such untrue statement,
alleged untrue statement, omission, or alleged omission relates to any filing with the
Commission other than the Company Information.”
EXHIBIT III
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by [the Servicer] [Name of Subservicer] shall
address, at a minimum, the criteria identified as below as “Applicable Servicing Criteria”
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Applicable |
Servicing Criteria |
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Servicing Criteria |
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Reference
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Criteria |
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General Servicing Considerations |
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1122(d)(1)(i)
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Policies and procedures are instituted to monitor any performance or
other triggers and events of default in accordance with the transaction
agreements.
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X |
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1122(d)(1)(ii)
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If any material servicing activities are outsourced to third
parties, policies and procedures are instituted to monitor the third
party’s performance and compliance with such servicing activities.
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X |
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1122(d)(1)(iii)
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Any requirements in the transaction agreements to maintain a back-up
servicer for the mortgage loans are maintained. |
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1122(d)(1)(iv)
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A fidelity bond and errors and omissions policy is in effect on the
party participating in the servicing function throughout the reporting
period in the amount of coverage required by and otherwise in accordance
with the terms of the transaction agreements.
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X |
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Cash Collection and Administration |
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1122(d)(2)(i)
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Payments on mortgage loans are deposited into the appropriate
custodial bank accounts and related bank clearing accounts no more than
two business days following receipt, or such other number of days
specified in the transaction agreements.
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X |
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1122(d)(2)(ii)
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Disbursements made via wire transfer on behalf of an obligor or to
an investor are made only by authorized personnel.
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X |
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1122(d)(2)(iii)
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Advances of funds or guarantees regarding collections, cash flows or
distributions, and any interest or other fees charged for such advances,
are made, reviewed and approved as specified in the transaction
agreements.
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X |
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1122(d)(2)(iv)
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The related accounts for the transaction, such as cash reserve
accounts or accounts established as a form of overcollateralization, are
separately maintained (e.g., with respect to commingling of cash) as set
forth in the transaction agreements.
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X |
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1122(d)(2)(v)
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Each custodial account is maintained at a federally insured
depository institution as set forth in the transaction agreements. For
purposes of this criterion, “federally insured depository institution”
with respect to a foreign financial institution means a foreign
financial institution that meets the requirements of Rule 13k-1(b)(1) of
the Securities Exchange Act.
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X |
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1122(d)(2)(vi)
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Unissued checks are safeguarded so as to prevent unauthorized access.
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X |
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1122(d)(2)(vii)
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Reconciliations are prepared on a monthly basis for all
asset-backed securities related bank accounts, including custodial
accounts and related bank clearing accounts. These reconciliations are
(A) mathematically accurate; (B) prepared within 30 calendar days after
the bank statement cutoff date, or such other number of days specified
in the transaction agreements; (C) reviewed and approved by someone
other than the person who prepared the reconciliation; and (D) contain
explanations for reconciling items. These reconciling items are resolved
within 90 calendar days of their original identification, or such other
number of days specified in the transaction agreements.
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X |
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Applicable |
Servicing Criteria |
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Servicing Criteria |
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Reference
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Criteria |
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Investor Remittances and Reporting |
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1122(d)(3)(i)
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Reports to investors, including those to be filed with the
Commission, are maintained in accordance with the transaction agreements
and applicable Commission requirements. Specifically, such reports (A)
are prepared in accordance with timeframes and other terms set forth in
the transaction agreements; (B) provide information calculated in
accordance with the terms specified in the transaction agreements; (C)
are filed with the Commission as required by its rules and regulations;
and (D) agree with investors’ or the trustee’s records as to the total
unpaid principal balance and number of mortgage loans serviced by the
Servicer.
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X |
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1122(d)(3)(ii)
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Amounts due to investors are allocated and remitted in accordance
with timeframes, distribution priority and other terms set forth in the
transaction agreements.
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X |
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1122(d)(3)(iii)
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Disbursements made to an investor are posted within two business
days to the Servicer’s investor records, or such other number of days
specified in the transaction agreements.
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X |
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1122(d)(3)(iv)
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Amounts remitted to investors per the investor reports agree with
cancelled checks, or other form of payment, or custodial bank
statements.
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X |
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Pool Asset Administration |
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1122(d)(4)(i)
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Collateral or security on mortgage loans is maintained as required
by the transaction agreements or related mortgage loan documents.
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X |
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1122(d)(4)(ii)
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Mortgage loan and related documents are safeguarded as required by
the transaction agreements
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X |
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1122(d)(4)(iii)
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Any additions, removals or substitutions to the asset pool are made,
reviewed and approved in accordance with any conditions or requirements
in the transaction agreements.
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X |
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1122(d)(4)(iv)
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Payments on mortgage loans, including any payoffs, made in
accordance with the related mortgage loan documents are posted to the
Servicer’s obligor records maintained no more than two business days
after receipt, or such other number of days specified in the transaction
agreements, and allocated to principal, interest or other items (e.g.,
escrow) in accordance with the related mortgage loan documents.
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X |
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1122(d)(4)(v)
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The Servicer’s records regarding the mortgage loans agree with the
Servicer’s records with respect to an obligor’s unpaid principal
balance.
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X |
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1122(d)(4)(vi)
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Changes with respect to the terms or status of an obligor’s mortgage
loans (e.g., loan modifications or re-agings) are made, reviewed and
approved by authorized personnel in accordance with the transaction
agreements and related pool asset documents.
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X |
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1122(d)(4)(vii)
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Loss mitigation or recovery actions (e.g., forbearance plans,
modifications and deeds in lieu of foreclosure, foreclosures and
repossessions, as applicable) are initiated, conducted and concluded in
accordance with the timeframes or other requirements established by the
transaction agreements.
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X |
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1122(d)(4)(viii)
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Records documenting collection efforts are maintained during the
period a mortgage loan is delinquent in accordance with the transaction
agreements. Such records are maintained on at least a monthly basis, or
such other period specified in the transaction agreements, and describe
the entity’s activities in monitoring delinquent mortgage loans
including, for example, phone calls, letters and payment rescheduling
plans in cases where delinquency is deemed temporary (e.g., illness or
unemployment).
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X |
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1122(d)(4)(ix)
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Adjustments to interest rates or rates of return for mortgage loans
with variable rates are computed based on the related mortgage loan
documents.
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X |
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1122(d)(4)(x)
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Regarding any funds held in trust for an obligor (such as escrow
accounts): (A) such funds are analyzed, in accordance with the obligor’s
mortgage loan documents, on at least an annual basis, or such other
period specified in the transaction agreements; (B) interest on such
funds is paid, or credited, to obligors in accordance with applicable
mortgage loan documents and state laws; and (C) such funds are returned
to the obligor within 30 calendar days of full repayment of the related
mortgage loans, or such other number of days specified in the
transaction agreements.
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X |
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Applicable |
Servicing Criteria |
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Servicing Criteria |
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Reference
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Criteria |
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1122(d)(4)(xi)
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Payments made on behalf of an obligor (such as tax or insurance
payments) are made on or before the related penalty or expiration dates,
as indicated on the appropriate bills or notices for such payments,
provided that such support has been received by the servicer at least 30
calendar days prior to these dates, or such other number of days
specified in the transaction agreements.
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X |
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1122(d)(4)(xii)
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Any late payment penalties in connection with any payment to be made
on behalf of an obligor are paid from the servicer’s funds and not
charged to the obligor, unless the late payment was due to the obligor’s
error or omission.
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X |
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1122(d)(4)(xiii)
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Disbursements made on behalf of an obligor are posted within two
business days to the obligor’s records maintained by the servicer, or
such other number of days specified in the transaction agreements.
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X |
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1122(d)(4)(xiv)
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Delinquencies, charge-offs and uncollectible accounts are
recognized and recorded in accordance with the transaction agreements.
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X |
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1122(d)(4)(xv)
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Any external enhancement or other support, identified in Item
1114(a)(1) through (3) or Item 1115 of Regulation AB, is maintained as
set forth in the transaction agreements. |
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[NAME OF SERVICER] [NAME OF SUBSERVICER] |
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Date: |
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By: |
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Name: |
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Title: |
EXHIBIT IV
FORM OF ANNUAL CERTIFICATION
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Re:
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The [ ]
agreement dated as of [ ], 200[
] (the “Agreement”), among [IDENTIFY PARTIES] |
I, , the of [NAME OF SERVICER],
certify to [the Assignee], [the Depositor], and the [Master Servicer] [Securities Administrator]
[Trustee], and their officers, with the knowledge and intent that they will rely upon this
certification, that:
(1) I have reviewed the servicer compliance statement of the Servicer provided in
accordance with Item 1123 of Regulation AB (the “Compliance Statement”), the report on
assessment of the Servicer’s compliance with the servicing criteria set forth in Item
1122(d) of Regulation AB and identified as the responsibility of the Servicer on Exhibit III
of the related Assignment, Assumption and Recognition Agreement (the “Servicing Criteria”),
provided in accordance with Rules 13a-18 and 15d-18 under Securities Exchange Act of 1934,
as amended (the “Exchange Act”) and Item 1122 of Regulation AB (the “Servicing Assessment”),
the registered public accounting firm’s attestation report provided in accordance with Rules
13a-18 and 15d-18 under the Exchange Act and Section 1122(b) of Regulation AB (the
“Attestation Report”), and all servicing reports, officer’s certificates and other
information relating to the servicing of the Mortgage Loans by the Servicer during 200[ ]
that were delivered by the Servicer to the [Depositor] [Master Servicer] [Securities
Administrator] [Trustee] pursuant to the Agreement (collectively, the “Servicing
Information”);
(2) Based on my knowledge, the Servicing Information, taken as a whole, does not
contain any untrue statement of a material fact or omit to state a material fact necessary
to make the statements made, in the light of the circumstances under which such statements
were made, not misleading with respect to the period of time covered by the Servicing
Information;
(3) Based on my knowledge, all of the Servicing Information required to be provided by
the Servicer under the Agreement has been provided to the [Depositor] [Master Servicer]
[Securities Administrator] [Trustee];
(4) I am responsible for reviewing the activities performed by the Servicer 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 Servicer has fulfilled its obligations
under the Agreement; and
(5) The Compliance Statement required to be delivered by the Servicer pursuant to this
Agreement, and the Servicing Assessment and Attestation Report required to be provided by
the Servicer and by each Subcontractor pursuant to the Agreement, have been provided to the
[Depositor] [Master Servicer]. Any material instances of noncompliance described in such
reports have been disclosed to the
[Depositor] [Master Servicer]. Any material instance of noncompliance with the
Servicing Criteria has been disclosed in such reports.