RECONSTITUTED SERVICING AGREEMENT
EXECUTION
This
RECONSTITUTED SERVICING AGREEMENT (this “Agreement”), entered into as of the 1st
day of May, 2007, by and between XXXXXX BROTHERS HOLDINGS INC., a Delaware
corporation (the “Seller” or “Xxxxxx Holdings”) and GREENPOINT MORTGAGE FUNDING,
INC., a New York corporation organized under the laws of the State of New York
(the “Servicer”), and acknowledged by AURORA LOAN SERVICES LLC, a Delaware
limited liability company, as Master Servicer under the Trust Agreement (as
defined herein), and LASALLE BANK NATIONAL ASSOCIATION, a national banking
association, solely in its capacity as trustee under the Trust Agreement (as
defined herein) (the “Trustee”), recites and provides as follows:
RECITALS
WHEREAS,
Xxxxxx Brothers Bank, FSB (“Xxxxxx Brothers Bank”) acquired certain
conventional, residential, fixed rate, first lien mortgage loans from the
Servicer, which mortgage loans were either originated or acquired by the
Servicer, pursuant to an Amended and Restated Flow Mortgage Loan Purchase,
Warranties and Servicing Agreement between Xxxxxx Brothers Bank and the Servicer
dated as of January 1, 2007 (hereinafter, the “PWSA”) and annexed hereto as
Exhibit B.
WHEREAS,
pursuant to an assignment and assumption agreement dated as of May 1, 2007
(the
“Assignment and Assumption Agreement”) and annexed hereto as Exhibit C, Xxxxxx
Brothers Bank has assigned all of its rights, title and interest in certain
of
these mortgage loans as identified on Exhibit E hereto (the “Mortgage Loans”) as
well as all of its rights and obligations as purchaser under the PWSA to the
Seller, and the Seller has accepted such assignment.
WHEREAS,
the Seller has conveyed the Mortgage Loans to Structured Asset Securities
Corporation, a Delaware special purpose corporation (“SASCO” or the “Depositor”)
pursuant to a mortgage loan sale and assignment agreement dated as of May 1,
2007 (the “Mortgage Loan Sale and Assignment Agreement”), and SASCO in turn has
conveyed the Mortgage Loans to the Trustee, pursuant to a trust agreement dated
as of May 1, 2007 (the “Trust Agreement”), among the Trustee, Aurora Loan
Services LLC, as master servicer (“Aurora,” and together with any successor
Master Servicer appointed pursuant to the provisions of the Trust Agreement,
the
“Master Servicer”) and the Depositor.
WHEREAS,
the Seller desires that the Servicer continue to service the Mortgage Loans,
and
the Servicer has agreed to do so, subject to the rights of the Seller and the
Master Servicer to terminate the rights and obligations of the Servicer
hereunder as set forth herein and to the other conditions set forth
herein.
WHEREAS,
the Seller and the Servicer agree that the provisions of the PWSA shall apply
to
the Mortgage Loans, but only to the extent provided herein and that this
Agreement shall govern the Mortgage Loans for so long as such Mortgage Loans
remain subject to the provisions of the Trust Agreement.
WHEREAS,
the Master Servicer and any successor master servicer shall be obligated, among
other things, to supervise the servicing of the Mortgage Loans on behalf of
the
Trustee, and shall have the right, under certain circumstances, to terminate
the
rights and obligations of the Servicer under this Agreement.
WHEREAS,
the Seller and the Servicer intend that each of the Master Servicer and the
Trustee is an intended third party beneficiary of this Agreement.
NOW,
THEREFORE, in consideration of the mutual agreements hereinafter set forth
and
for other good and valuable consideration, the receipt and adequacy of which
are
hereby acknowledged, the Seller and the Servicer hereby agree as
follows:
AGREEMENT
1. Definitions.
Capitalized terms used and not defined in this Agreement, including Exhibit
A
hereto and any provisions of the PWSA incorporated by reference herein
(regardless if such terms are defined in the PWSA), shall have the meanings
ascribed to such terms in the Trust Agreement.
2. Custodianship.
The
parties hereto acknowledge that U.S. Bank National Association will
act
as custodian of the Serviced Mortgage
Files
for the Trustee pursuant to the Custodial Agreement dated as of May 1, 2007,
between U.S. Bank National Association and the Trustee.
3. Servicing.
The
Servicer agrees, with respect to the Mortgage Loans, to perform and observe
the
duties, responsibilities and obligations that are to be performed and observed
under the provisions of the PWSA, except as otherwise provided herein and on
Exhibit A hereto, and that the provisions of the PWSA, as so modified, are
and
shall be a part of this Agreement to the same extent as if set forth herein
in
full.
4. Trust
Cut-off Date.
The
parties hereto acknowledge that by operation of Section 5.05 and Section 6.01
of
the PWSA, the remittance on June 18, 2007 to Aurora Loan Services LLC is to
include principal due after May
1,
2007
(the
“Trust Cut-off Date”) plus interest, at the Mortgage Loan Remittance Rate
collected during the related Due Period, exclusive of any portion thereof
allocable to a period prior to the Trust Cut-off Date, with the adjustments
specified in clauses (b), (c) and (d) of Section 6.01 of the PWSA.
5. Master
Servicing; Termination of Servicer.
The
Servicer, including any successor servicer hereunder, shall be subject to the
supervision of the Master Servicer, which Master Servicer shall be obligated
to
ensure that the Servicer services the Mortgage Loans in accordance with the
provisions of this Agreement. The Master Servicer, acting on behalf of the
Trustee and the Xxxxxx XS 2007-9 Trust Fund (the “Trust Fund”) created pursuant
to the Trust Agreement, shall have the same rights as Xxxxxx Brothers Bank
under
the PWSA to enforce the obligations of the Servicer under the PWSA and the
term
“Purchaser” as used in the PWSA in connection with any rights of the Purchaser
shall refer to the Trust Fund or, as the context requires, the Master Servicer
acting in its capacity as agent for the Trust Fund, except as otherwise
specified in Exhibit A hereto. The Master Servicer shall be entitled to
terminate the rights and obligations of the Servicer under this Agreement upon
the failure of the Servicer to perform any of its obligations under this
Agreement, which failure results in an Event of Default as provided in Article
X
of the PWSA. Notwithstanding anything herein to the contrary, in no event shall
the Master Servicer assume any of obligations of Xxxxxx Brothers Bank under
the
PWSA and in connection with the performance of the Master Servicer’s duties
hereunder the parties and other signatories hereto agree that the Master
Servicer shall be entitled to all of the rights, protections and limitations
of
liability afforded to the Master Servicer under the Trust
Agreement.
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6. No
Representations.
Neither
the Servicer nor the Master Servicer shall be obligated or required to make
any
additional representations and warranties regarding the characteristics of
the
Mortgage Loans in connection with the transactions contemplated by the Trust
Agreement and issuance of the Certificates issued pursuant thereto.
7. Notices.
All
notices and communications between or among the parties hereto (including any
third party beneficiary thereof) or required to be provided to the Trustee
shall
be in writing and shall be deemed received or given when mailed first-class
mail, postage prepaid, addressed to each other party at its address specified
below or, if sent by facsimile or electronic mail, when facsimile or electronic
confirmation of receipt by the recipient is received by the sender of such
notice. Each party may designate to the other parties in writing, from time
to
time, other addresses to which notices and communications hereunder shall be
sent.
All
notices required to be delivered to the Master Servicer under this Agreement
shall be delivered to the Master Servicer at the following address:
Aurora
Loan Services LLC
00000
Xxxx Xxxxxxx Xxxxx
Xxxxxxxxx,
XX 00000
Attn: Xxxxxx
X.
Xxxxxx- Master Servicing, LXS 2007-9
Tel: 000-000-0000
All
remittances required to be made to the Master Servicer under this Agreement
shall be made on a scheduled/scheduled basis to the following wire
account:
The
Bank
of New York
ABA#:
000-000-000
Account
Name: Aurora
Loan Services LLC,
Master
Servicing Payment Clearing Account
Account
Number: 8900620730
Beneficiary:
Aurora Loan Services LLC
For
further credit to: LXS 2007-9
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All
notices required to be delivered to the Trustee hereunder shall be delivered
to
the Trustee at the following address:
LaSalle
Bank National Association
000
X.
XxXxxxx Xx., Xxxxx 0000
Xxxxxxx,
Xxxxxxxx 00000
Attention:
Global Securities and Trust Services (LXS 2007-9)
Telephone:
000-000-0000
Facsimile:
000-000-0000
All
notices required to be delivered to the Seller hereunder shall be delivered
to
the Seller at the following address:
Xxxxxx
Brothers Holdings Inc.
000
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx Xxxxxx
Telephone:
(000) 000-0000
E-mail:
xxxxxxx@xxxxxx.xxx
All
notices required to be delivered to the Servicer hereunder shall be delivered
to
its office at the address for notices as set forth in the PWSA.
8. Governing
Law.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER
THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
9. Counterparts.
This
Agreement may be executed in any number of counterparts, each of which when
so
executed shall be deemed to be an original, but all of which counterparts shall
together constitute but one and the same instrument.
10. Termination.
Upon
the
termination of the Trust Fund pursuant to Article VII of the Trust Agreement,
this Agreement shall terminate, and thereafter, the Mortgage Loans shall be
serviced in accordance with the terms of the PWSA. In the event that the PWSA
was terminated prior to the termination of the Trust Fund, the Servicer and
the
Master Servicer shall enter into a replacement servicing agreement with respect
to the Mortgage Loans, which agreement shall be similar to the PWSA in all
material respects. In the event that the Master Servicer and the Servicer fail
to enter into a replacement servicing agreement promptly after the termination
of the Trust Fund, the Master Servicer may transfer the servicing of the
Mortgage Loans to a third party servicer at its sole discretion; provided
that the
Mortgage Loans shall be serviced in accordance with the terms of this Agreement
until such time the servicing of the Mortgage Loans has been transferred to
such
third-party servicer.
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Executed
as of the day and year first above written.
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XXXXXX
BROTHERS HOLDINGS INC.,
as
Seller
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| By: | /s/ Xxxxxxx X. Xxxxxxxx | |
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Name:
Xxxxxxx X. Xxxxxxxx
Title:
Authorized Signatory
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GREENPOINT
MORTGAGE FUNDING, INC.,
as
Servicer
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| By: | /s/ Xxxxx Xxxxx | |
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Name:
Xxxxx Xxxxx
Title:
Vice President
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Acknowledged:
AURORA
LOAN SERVICES LLC,
as
Master
Servicer
By:
/s/
Xxxxx
X. Xxxxxxx
Name:
Xxxxx X. Xxxxxxx
Title:
Senior Vice President
LASALLE
BANK NATIONAL ASSOCIATION,
as
Trustee and not in its individual capacity
By:
/s/
Xxxx
Xxxxx
Name:
Xxxx Xxxxx
Title:
Vice President
EXHIBIT
A
Modifications
to the PWSA
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1.
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Unless
otherwise specified herein, any provisions of the PWSA, including
definitions, relating to (i) representations and warranties relating
to
the Mortgage Loans and not relating to the servicing of the Mortgage
Loans, (ii) Mortgage Loan repurchase obligations, (iii) Agency Transfer,
Whole Loan Transfers, Securitization Transactions and Reconstitution,
and
(iv) Assignments of Mortgage, shall be disregarded for purposes relating
to this Agreement. Except as otherwise referred to herein, the exhibits
to
the PWSA and all references to such exhibits shall also be
disregarded.
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2.
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The
definition of “Closing Date” is hereby amended in its entirety to read as
follows:
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“Closing
Date”:
May
31, 2007.
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3.
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The
definition of “Custodial Agreement” in Article I is hereby amended in its
entirety to read as follows:
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“Custodial Agreement”
means
the Custodial Agreement dated as of May 1, 2007, between U.S. Bank National
Association, as custodian, and the Trustee.
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4.
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The
definition of “Custodian” in Article I is hereby amended in its entirety
to read as follows:
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“Custodian”
means
U.S. Bank National Association.
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5.
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The
definition of “Determination Date” in Article I is hereby amended in its
entirety to read as follows:
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“Determination
Date”:
The
fifteenth (15th)
day of
the calendar month of the related Remittance Date (or if such day is not a
Business Day, the Business Day immediately preceding such day).
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6.
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The
definition of “Eligible Investments” in Article I is hereby amended in its
entirety to read as follows:
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“Eligible
Investments”:
Any
one or more of the obligations and securities listed below which investment
provides for a date of maturity not later than the Determination Date in each
month:
(i) direct
obligations of, and obligations fully guaranteed as to timely payment of
principal and interest by, the United States of America or any agency or
instrumentality of the United States of America the obligations of which are
backed by the full faith and credit of the United States of America (“Direct
Obligations”);
(ii) federal
funds, or demand and time deposits in, certificates of deposits of, or bankers’
acceptances issued by, any depository institution or trust company (including
U.S. subsidiaries of foreign depositories and the Trustee or any agent of the
Trustee, acting in its respective commercial capacity) incorporated or organized
under the laws of the United States of America or any state thereof and subject
to supervision and examination by federal or state banking authorities, so
long
as at the time of investment or the contractual commitment providing for such
investment the commercial paper or other short-term debt obligations of such
depository institution or trust company (or, in the case of a depository
institution or trust company which is the principal subsidiary of a holding
company, the commercial paper or other short-term debt or deposit obligations
of
such holding company or deposit institution, as the case may be) have been
rated
by each Rating Agency in its highest short-term rating category or one of its
two highest long-term rating categories;
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(iii) repurchase
agreements collateralized by Direct Obligations or securities guaranteed by
GNMA, Xxxxxx Xxx or Xxxxxxx Mac with any registered broker/dealer subject to
Securities Investors’ Protection Corporation jurisdiction or any commercial bank
insured by the FDIC, if such broker/dealer or bank has an uninsured, unsecured
and unguaranteed obligation rated by each Rating Agency in its highest
short-term rating category;
(iv) securities
bearing interest or sold at a discount issued by any corporation incorporated
under the laws of the United States of America or any state thereof which have
a
credit rating from each Rating Agency, at the time of investment or the
contractual commitment providing for such investment, at least equal to one
of
the two highest long-term credit rating categories of each Rating Agency;
provided,
however,
that
securities issued by any particular corporation will not be Eligible Investments
to the extent that investment therein will cause the then outstanding principal
amount of securities issued by such corporation and held as part of the Trust
Fund to exceed 20% of the sum of the aggregate principal balance of the Mortgage
Loans; provided, further, that such securities will not be Eligible Investments
if they are published as being under review with negative implications from
any
Rating Agency;
(v) commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified date not more
than 180 days after the date of issuance thereof) rated by each Rating Agency
in
its highest short-term rating category;
(vi) a
Qualified GIC;
(vii) certificates
or receipts representing direct ownership interests in future interest or
principal payments on obligations of the United States of America or its
agencies or instrumentalities (which obligations are backed by the full faith
and credit of the United States of America) held by a custodian in safekeeping
on behalf of the holders of such receipts; and
(viii) any
other
demand, money market, common trust fund or time deposit or obligation, or
interest-bearing or other security or investment, (A) rated in the highest
rating category by each Rating Agency or (B) that would not adversely affect
the
then current rating by each Rating Agency of any of the Certificates and has
a
short term rating of at least “A-1” or its equivalent by each Rating Agency.
Such investments in this subsection (viii) may include money market mutual
funds
or common trust funds, including any fund for which the Trustee, the Master
Servicer or an affiliate thereof serves as an investment advisor, administrator,
shareholder servicing agent, and/or custodian or subcustodian, notwithstanding
that (x) the Trustee, the Master Servicer or an affiliate thereof charges and
collects fees and expenses from such funds for services rendered, (y) the
Trustee, the Master Servicer or an affiliate thereof charges and collects fees
and expenses for services rendered pursuant to this Agreement, and (z) services
performed for such funds and pursuant to this Agreement may converge at any
time; provided,
however,
that no
such instrument shall be an Eligible Investment if such instrument evidences
either (i) a right to receive only interest payments with respect to the
obligations underlying such instrument, or (ii) both principal and interest
payments derived from obligations underlying such instrument and the principal
and interest payments with respect to such instrument provide a yield to
maturity of greater than 120% of the yield to maturity at par of such underlying
obligations.
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7.
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The
definition of “GNMA” is hereby added to Article I to immediately follow
the definition of “Xxxxxxx Mac
Guides”:
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“GNMA”:
The
Government National Mortgage Association, or any successor thereto.
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8.
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The
definition of “Master Servicer” in Article I is hereby deleted in its
entirety.
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9.
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The
definition of “Mortgage Loan” in Article I is hereby amended in its
entirety to read as follows:
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“Mortgage
Loan”:
An
individual servicing retained Mortgage Loan which has been purchased from the
Servicer by Xxxxxx Brothers Bank, FSB and is subject to this Agreement, being
identified on the Mortgage Loan Schedule to this Agreement, which Mortgage
Loan
includes without limitation the Mortgage Loan documents, the Monthly Reports,
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.
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10.
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The
definition of “Mortgage Loan Schedule” in Article I is hereby amended in
its entirety to read as follows:
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“Mortgage
Loan Schedule”
The
schedule of Mortgage Loans setting forth certain information with respect to
the
Mortgage Loans purchased from the Servicer by Xxxxxx Brothers Bank, FSB pursuant
to the PWSA, which Mortgage Loan Schedule is attached as Exhibit M to this
Agreement.
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11.
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The
definition of “Prepayment Interest Shortfall Amount” is hereby amended in
its entirety to read as follows:
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“Prepayment
Interest Shortfall Amount”:
With
respect to any Mortgage Loan that was subject to a voluntary (not including
discounted payoffs) 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 for Principal Prepayments in full only) 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.
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12.
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The
definition of “Qualified Depository” is hereby amended in its entirety to
read as follows:
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“Qualified
Depository”:
Any of
(i) a federal or state-chartered depository institution or trust company the
accounts of which are insured by the FDIC and whose commercial paper, short-term
debt obligations or other short-term deposits are rated at least “A-1+” by
Standard & Poor’s, or whose long-term unsecured debt obligations are rated
at least “AA-” by Standard & Poor’s if the amounts on deposit are to be held
in the account for no more than 365 days or whose commercial paper, short-term
debt obligations, demand deposits, or other short-term deposits are rated at
least “A-2” by Standard & Poor’s if the amounts on deposit are to be held in
the account for no more than 30 days and are not intended to be used as credit
enhancement , or (ii) the corporate trust department of a federal or
state-chartered depository institution subject to regulations regarding
fiduciary funds on deposit similar to Title 12 of the Code of Federal
Regulations, which has corporate trust powers, acting in its fiduciary capacity,
or (iii) Xxxxxx Brothers Bank, F.S.B., a federal savings bank.
A-4
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13.
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The
definition of “Qualified GIC” is hereby added to Article I to immediately
follow the definition of “Qualified Depository”, to read as
follows:
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“Qualified
GIC”:
A
guaranteed investment contract or surety bond providing for the investment
of
funds in the Custodial Account and insuring a minimum, fixed or floating rate
of
return on investments of such funds, which contract or surety bond
shall:
(a) be
an
obligation of an insurance company or other corporation whose long-term debt
is
rated by each Rating Agency in one of its two highest rating categories or,
if
such insurance company has no long-term debt, whose claims paying ability is
rated by each Rating Agency in one of its two highest rating categories, and
whose short-term debt is rated by each Rating Agency in its highest rating
category;
(b) provide
that the Servicer may exercise all of the rights under such contract or surety
bond without the necessity of taking any action by any other
Person;
(c) provide
that if at any time the then current credit standing of the obligor under such
guaranteed investment contract is such that continued investment pursuant to
such contract of funds would result in a downgrading of any rating of the
Servicer, the Servicer shall terminate such contract without penalty and be
entitled to the return of all funds previously invested thereunder, together
with accrued interest thereon at the interest rate provided under such contract
to the date of delivery of such funds to the Trustee;
(d) provide
that the Servicer’s interest therein shall be transferable to any successor
Servicer or the Master Servicer hereunder; and
(e)provide
that the funds reinvested thereunder and accrued interest thereon be returnable
to the Custodial Account, as the case may be, not later than the Business Day
prior to any Determination Date.
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14.
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The
definition of “Rating Agency” is hereby amended and restated in its
entirety to read as follows:
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“Rating
Agency”:
Xxxxx’x Investors Service, Inc. or Standard & Poor’s Ratings Services, a
division of The XxXxxx-Xxxx Companies, Inc., or any successor of the
foregoing.
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15.
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A
new definition of “Sarbanes Certifying Party” is added to Article I to
immediately follow the definition of “SAIF” to read as
follows:
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“Sarbanes
Certifying Party”
means
a
Person who provides a certification required under the Xxxxxxxx-Xxxxx Act of
2002 on behalf of the Trust Fund.
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16.
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The
parties acknowledge that Section 2.03 (Custodial Agreement; Delivery
of
Documents) shall be superceded by the provisions of the Custodial
Agreement.
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17.
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Section
4.01 (Seller Representations and Warranties) is hereby amended by
deleting
Section 4.01(B)(i)(vii) in its entirety and replacing it with the
following:
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(vii)
there are no affiliations, relationships or transactions relating to a Seller,
the Servicer, any Subservicer or any Third-Party Originator with respect to
any
Securitization Transaction and any party thereto listed on Exhibit N of this
Agreement of a type described in Item 1119 of Regulation AB.
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18.
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Section
4.03 (Remedies for Breach of Representations and Warranties) is hereby
amended in its entirety to read as
follows:
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It
is
understood and agreed that the representations and warranties set forth in
Section 4.01(A) (a) through (f), (h), (i) (k) and (m) through (r) shall survive
the engagement of the Servicer to perform the servicing responsibilities
hereunder and the delivery of the Servicing Files to the Servicer and shall
inure to the benefit of the Trustee, the Trust Fund and the Master Servicer.
Upon discovery by either the Servicer, the Master Servicer or the Trustee of
a
breach of any of the foregoing representations and warranties which materially
and adversely affects the ability of the Servicer to perform its duties and
obligations under this Agreement or otherwise materially and adversely affects
the value of the Mortgage Loans, the Mortgaged Property or the priority of
the
security interest on such Mortgaged Property or the interest of the Trustee
or
the Trust Fund, the party discovering such breach shall give prompt written
notice to the other.
Within
60
days of the earlier of either discovery by or notice to the Servicer of any
breach of a representation or warranty set forth in Section 4.01(A) which
materially and adversely affects the ability of the Servicer to perform its
duties and obligations under this Agreement or otherwise materially and
adversely affects the value of the Loans, the Mortgaged Property or the priority
of the security interest on such Mortgaged Property, the Servicer shall use
its
best efforts promptly to cure such breach in all material respects and, if
such
breach cannot be cured, the Servicer shall, at the Master Servicer’s option,
assign the Servicer’s rights and obligations under this Agreement (or respecting
the affected Loans) to a successor Servicer in accordance with Section
12.01.
In
addition, the Servicer shall indemnify (from its own funds) the Trustee, the
Trust Fund and Master Servicer and hold each of them harmless against any costs
resulting from any claim, demand, defense or assertion based on or grounded
upon, or resulting from, a breach of the Servicer’s representations and
warranties contained in this Agreement. It is understood and agreed that the
remedies set forth in this Section 4.03 constitute the sole remedies of the
Master Servicer, the Trust Fund and the Trustee respecting a breach of the
foregoing representations and warranties.
Any
cause
of action against the Servicer relating to or arising out of the breach of
any
representations and warranties made in Section 4.01(A) shall accrue upon (i)
discovery of such breach by the Servicer or notice thereof by the Trustee or
Master Servicer to the Servicer, (ii) failure by the Servicer to cure such
breach within the applicable cure period, and (iii) demand upon the Servicer
by
the Trustee or the Master Servicer for compliance with this
Agreement.
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19.
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Section
5.01 (Seller to Act as Servicer) is hereby amended as
follows:
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(i) by
deleting the first and second sentences of the second paragraph of such section
and replacing it with the following:
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 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
unless the Mortgagor is in default with respect to the Mortgage Loan or such
default is, in the judgment of the Servicer, reasonably forseeable, the Servicer
shall not permit any modification with respect to any Mortgage Loan that would
change the Mortgage Interest Rate, defer or forgive the payment of principal
or
interest, reduce or increase the outstanding principal balance (except for
actual payments of principal) or change the final maturity date on such Mortgage
Loan. In the event of such modification, the Company shall calculate the Monthly
Payment for such Mortgage Loan based on the modified terms of such Mortgage
Loan
and shall only be required to make Monthly Advances pursuant to Section 6.04
to
the extent of such new Monthly Payment.
A-6
(ii) by
adding
the following to the end of the second paragraph of such section:
Promptly
after the execution of any assumption, modification, consolidation or extension
of any Mortgage Loan, the Servicer shall forward to the Master Servicer copies
of any documents evidencing such assumption, modification, consolidation or
extension. Notwithstanding anything to the contrary contained in this Agreement,
the Servicer shall not make or permit any modification, waiver or amendment
of
any term of any Mortgage Loan that would cause any REMIC created under the
Trust
Agreement to fail to qualify as a REMIC or result in the imposition of any
tax
under Section 860F(a) or Section 860G(d) of the Code.
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20.
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Section
5.04 (Establishment of and Deposits to Custodial Account) is hereby
amended as follows:
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(a)
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the
words “GreenPoint Mortgage Funding, Inc. in trust for Xxxxxx Brothers
Bank, purchaser of Conventional Residential Adjustable and Fixed
Rate
Mortgage Loans, Group No. 2006-FLOW” in the first sentence of the first
paragraph shall be replaced by the following words: “GreenPoint Mortgage
Funding, Inc. in trust for the Xxxxxx XS 2007-9 Trust
Fund.”
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(b)
|
by
amending clause (xii) to read as
follows:
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(xii)
|
the
amount of any Prepayment Interest Shortfall Amount paid out of the
Servicer’s own funds without any right to reimbursement
therefor;
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(c) by
adding
the words “ No later than 30 days after the Closing Date,” to the beginning of
the last sentence of the first paragraph of such section.
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21.
|
Section
5.06 (Establishment of and Deposits to Escrow Account) shall be amended
as
follows:
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(a)
|
the
words “GreenPoint Mortgage Funding, Inc. in trust for Xxxxxx Brothers
Bank, purchaser of Conventional Residential Adjustable and Fixed
Rate
Mortgage Loans, Group No. 2006-FLOW, and various mortgagors” in the first
sentence of the first paragraph shall be replaced by the following
words:
“GreenPoint Mortgage Funding, Inc. in trust for the Xxxxxx XS 2007-9
Trust
Fund, and various mortgagors.”
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A-7
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(b)
|
by
adding the words “ No later than 30 days after the Closing Date,” to the
beginning of the last sentence of the first paragraph of such
section.
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22.
|
Section
5.17 (Title, Management and Disposition of REO Property) is hereby
amended
as follows:
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(a)
by
deleting the third paragraph of such section in its entirety and replacing
it
with the following paragraph:
The
Seller shall use its Best Efforts to dispose of the REO Property as soon as
possible and shall sell such REO Property in any event within three years after
title has been taken to such REO Property, unless (a) a REMIC election has
not
been made with respect to the arrangement under which the Mortgage Loans and
the
REO Property are held, and (b) the Seller determines, and gives an appropriate
notice to the Master Servicer to such effect, that a longer period is necessary
for the orderly liquidation of such REO Property. If a period longer than three
years is permitted under the foregoing sentence and is necessary to sell any
REO
Property, (i) the Seller shall report monthly to the Master Servicer as to
the
progress being made in selling such REO Property and (ii) if, with the written
consent of the Trustee, a purchase money mortgage is taken in connection with
such sale, such purchase money mortgage shall name the Seller as mortgagee,
and
such purchase money mortgage shall not be held pursuant to this Agreement,
but
instead a separate participation agreement among the Seller and Trustee shall
be
entered into with respect to such purchase money mortgage. Notwithstanding
anything herein to the contrary, the Seller shall not be required to provide
financing for the sale of any REO Property. Notwithstanding any other provisions
of this Agreement, no REO Property acquired by the Trust Fund shall be rented
(or allowed to continue to be rented) or otherwise used or held by or on behalf
of the Trust Fund in such a manner, pursuant to any terms or for a period that
would: (i) cause such REO Property to fail to qualify as “foreclosure property”
within the meaning of Section 860G(a)(8) of the Code or (ii) result in the
imposition of any tax upon any REMIC included in the Trust Fund.
(b)
by
deleting the fourth paragraph of such section in its entirety and replacing
it
with the following paragraph:
Notwithstanding
anything to the contrary contained in this Section 5.17, in connection with
a
foreclosure or acceptance of a deed in lieu of foreclosure, in the event the
Seller has reasonable cause to believe that a Mortgaged Property is contaminated
by hazardous or toxic substances or wastes, or if the Trustee or the Master
Servicer otherwise requests, an environmental inspection or review of such
Mortgaged Property to be conducted by a qualified inspector shall be arranged
by
the Seller. Upon completion of the inspection, the Seller shall provide the
Trustee and the Master Servicer with a written report of such environmental
inspection. In the event that the environmental inspection report indicates
that
the Mortgaged Property is contaminated by hazardous or toxic substances or
wastes, the Seller shall not proceed with foreclosure or acceptance of a deed
in
lieu of foreclosure. In the event that the environmental inspection report
is
inconclusive as to the whether or not the Mortgaged Property is contaminated
by
hazardous or toxic substances or wastes, the Seller shall not, without the
prior
approval of the Trustee, proceed with foreclosure or acceptance of a deed in
lieu of foreclosure. In such instance, the Trustee shall be deemed to have
approved such foreclosure or acceptance of a deed in lieu of foreclosure unless
the Trustee notifies the Seller in writing, within two (2) Business Days after
its receipt of written notice of the proposed foreclosure or deed in lieu of
foreclosure from the Seller, that it disapproves of the related foreclosure
or
acceptance of a deed in lieu of foreclosure. The Seller shall be reimbursed
for
all Servicing Advances made pursuant to this paragraph with respect to the
related Mortgaged Property from the Custodial Account.
A-8
(c)
by
adding the following paragraph to the end of such section:
Prior
to
acceptance by the Seller of an offer to sell any REO Property, the Seller shall
notify the Master Servicer of such offer in writing which notification shall
set
forth all material terms of said offer (each a “Notice of Sale”). The Master
Servicer shall be deemed to have approved the sale of any REO Property unless
the Master Servicer notifies the Seller in writing, within five (5) days after
its receipt of the related Notice of Sale, that it disapproves of the related
sale, in which case the Seller shall not proceed with such sale.
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23.
|
Section
5.22 (Prepayment Charges) is hereby amended by adding the following
sentence to the end of such
section:
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Otherwise,
if the Seller or its designee fails to collect the Prepayment Charge upon any
prepayment of any Mortgage Loan which contains a Prepayment Charge, the Seller
shall pay to the Custodial Account an amount equal to the Prepayment Charge
which was not collected.
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24.
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Section
6.01 (Remittances) is hereby amended by changing all references to
“second
Business Day” in such section to “first Business
Day.”
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25.
|
Section
6.01 is hereby further amended by adding the following after the
second
paragraph of such Section:
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All
remittances required to be made to the Master Servicer shall be made to the
following wire account or to such other account as may be specified by the
Master Servicer from time to time:
The
Bank
of New York
ABA#:
000-000-000
Account
Name: Aurora Loan Services LLC,
Master
Servicing Payment Clearing Account
Account
Number: 8900620730
Beneficiary:
Aurora Loan Services LLC
For
further credit to: LXS 2007-9
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26.
|
Section
6.02 (Statements to Purchaser) is hereby amended by replacing the
first
paragraph in its entirety to read as
follows:
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Section
6.02 Statements
to Master Servicer.
Not
later
than the fifth calendar day of each month (or if such calendar day is not a
Business Day, the immediately preceding Business Day), the Servicer shall
furnish to the Master Servicer (i) a monthly remittance advice in a format
(mutually agreed to between the Servicer and the Master Servicer) similar to
the
format set forth in Exhibit F-1 hereto and a monthly defaulted loan report
in a
format (mutually agreed to between the Servicer and the Master Servicer) similar
to the format set forth in Exhibit F-2 hereto relating to the period ending
on
the last day of the preceding calendar month and (ii) all such information
required pursuant to clause (i) above on a magnetic tape or other similar media
reasonably acceptable to the Master Servicer. The format of this monthly
reporting may be amended from time to time to the extent necessary to comply
with applicable law or the terms of the Trust Agreement.
A-9
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27.
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Section
7.05 (Annual Statement as to Compliance) is hereby amended as
follows:
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(a) by
replacing the words “the Purchaser and any Depositor” with “the Purchaser, the
Master Servicer, the Trustee, the Trust Fund and any Depositor”.
(b) by
replacing the words “the Purchaser and such Depositor” with “the Purchaser, the
Master Servicer, the Trustee, the Trust Fund and such Depositor”.
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28.
|
Section
7.07 (Assessment of Servicing Compliance) is hereby amended as
follows:
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(a) by
replacing the words “the Purchaser and any Depositor” with “the Purchaser, the
Master Servicer, the Trustee, the Trust Fund and any Depositor” in each
instance.
(b) by
replacing the words “the Purchaser and such Depositor” with “the Purchaser, the
Master Servicer, the Trustee, the Trust Fund and such Depositor” in each
instance.
(c)
by
replacing the words “the Purchaser, any Depositor” with “the Purchaser, the
Master Servicer, the Trustee, the Trust Fund, any Depositor” in each
instance.
(d)
by
replacing the words “neither the Purchaser nor any Depositor” with “none of the
Purchaser, the Master Servicer, the Trustee, the Trust Fund nor any Depositor”
in each instance.
(e) by
replacing clause (i)(C) in its entirety with the following:
(C)
in
connection with each Reconstitution Agreement, cause (x) each Subservicer and
(y) each Subcontractor determined by the Seller pursuant to Section 7.08 to
be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB (each, a “Participating Entity”) and for which the Seller does not
elect to take responsibility for assessing compliance with the Servicing
Criteria in accordance with Regulation AB Telephone Interpretation 17.06, to
deliver to the Purchaser, the Master Servicer, the Trustee, the Trust Fund
and
any Depositor an assessment of compliance and accountants’ attestation as and
when provided in paragraphs (A) and (B) of this Section 7.07(i);
and
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29.
|
Section
7.08 (Use of Subservicers and Subcontractors) is hereby amended as
follows:
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(a) by
replacing the words “the Purchaser and any Depositor” with “the Purchaser, the
Master Servicer, the Trustee, the Trust Fund and any Depositor” in each
instance.
(b) by
replacing the words “(or any designee of the Depositor, such as a master
servicer or administrator)” with “(or any designee of such party)” in each
instance
(c) by
replacing the words “the Purchaser and such Depositor” with “the Purchaser, the
Master Servicer, the Trustee, the Trust Fund and such Depositor” in each
instance.
(d) by
replacing the words “the Purchaser or any Depositor” with “the Purchaser, the
Master Servicer, the Trustee, the Trust Fund or any Depositor” in each
instance.
A-10
(e) by
replacing the last sentence of the second paragraph of Subsection (ii) with
the
following:
The
Seller shall be responsible for obtaining from each Subcontractor for which
the
Servicer does not elect to take responsibility for assessing compliance with
the
Servicing Criteria in accordance with Regulation AB Telephone Interpretation
17.06 and delivering to the Purchaser, the Master Servicer, the Trustee, the
Trust Fund or any Depositor any assessment of compliance and attestation
required to be delivered by such Subcontractor under Section 7.07, in each
case
as and when required to be delivered.
(f) by
replacing clause (C) in the first paragraph of Subsection (ii) with the
following:
(C)
which
elements of the Servicing Criteria will be addressed in assessments of
compliance provided by each Subcontractor for which the Servicer does not elect
to take responsibility for assessing compliance with the Servicing Criteria
in
accordance with Regulation AB Telephone Interpretation 17.06 identified pursuant
to clause (B) of this paragraph.
(f) by
replacing clause (B) in the third paragraph of Subsection (ii) with the
following:
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(B)
cause (x) each Subservicer and (y) each Subcontractor for which the
Servicer does not elect to take responsibility for assessing compliance
with the Servicing Criteria in accordance with Regulation AB Telephone
Interpretation 17.06, with respect to which the Purchaser, the Master
Servicer, the Trustee, the Trust Fund or any Depositor requests delivery
of an assessment of compliance and accountants’ attestation to deliver
such within the time required under Section
7.07.
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30.
|
Section
8.01 (Removal
of Mortgage Loans from Inclusion Under this Agreement Upon an Agency
Transfer, or a Securitization
Transaction
on
One or More Reconstitution Dates) is hereby amended as follows:
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(a) by
replacing the words
“the
depositor and the trustee” with “the Depositor, the Master Servicer, the Trustee
and the Trust Fund” in Section 8.01(c).
(b) by
adding
the words “and the Trust Fund” after the words “the master servicer” in the
second sentence of Section 8.01(c).
(c) by
replacing the words “the Purchaser or any Depositor”
with
“the Purchaser, the Master Servicer, the Trustee, the Trust Fund or any
Depositor” in each instance.
(d)
by
replacing the words “the Purchaser and such Depositor” with “the Purchaser, the
Master Servicer, the Trustee, the Trust Fund and such Depositor” in each
instance.
(e) by
replacing the words “the Purchaser and any Depositor” with “the Purchaser, the
Master Servicer, the Trustee, the Trust Fund and any Depositor” in each
instance.
A-11
(f) by
replacing the words “the Purchaser or the Depositor” with “the Purchaser, the
Master Servicer, the Trustee, the Trust Fund or the Depositor” in each
instance.
(g) by
replacing the words “the Purchaser or such Depositor” with “the Purchaser, the
Master Servicer, the Trustee, the Trust Fund or such Depositor” in each
instance.
(h) by
replacing the words “the Purchaser or Depositor” with “the Purchaser, the Master
Servicer, the Trustee, the Trust Fund or Depositor” in each
instance.
(i) by
deleting Section 8.01(e)(i)(D) in its entirety and replacing it with “as
promptly as practicable following notice to the Seller, a description of any
affiliation or relationship between a Seller or the Servicer, each Third-Party
Originator or each Subservicer, as applicable, and any of the parties listed
on
Exhibit N hereto.
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31.
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Section
8.04 (Additional Indemnification by the Seller) is hereby amended
as
follows:
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(a)
by
replacing Section 8.04(a) in its entirety with the following:
The
Servicer shall indemnify Xxxxxx Brothers Holdings Inc., the Trust Fund, the
Trustee, the Depositor and the Master Servicer and hold each of 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 any of such parties may sustain in any way related
to the failure of the Servicer to perform its duties and service the Mortgage
Loans in strict compliance with the terms of this Agreement (including, but
not
limited to its obligation to provide the certification pursuant to Section
8.01(c) hereunder) or for any inaccurate or misleading information provided
in
the certification required pursuant to Section 8.01(c). The Servicer immediately
shall notify Xxxxxx Brothers Holdings Inc., the Master Servicer and the Trustee
or any other relevant party if a claim is made by a third party with respect
to
this Agreement or the Mortgage Loans, assume (with the prior written consent
of
the indemnified party, which consent shall not be unreasonably withheld or
delayed) 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 any of such parties in
respect of such claim. The Servicer shall follow any written instructions
received from the Master Servicer or the Trustee in connection with such claim.
The Seller agrees that it will not enter into any settlement of any such claim
without the consent of the Purchaser unless such settlement includes an
unconditional release of the Purchaser from all liability that is the subject
matter of such claim. In addition to the obligations of the Seller set forth
in
this Section, the Purchaser may pursue any and all remedies otherwise available
at law or in equity, including, but not limited to, the right to seek damages.
The Servicer shall provide the Trustee (with a copy to the Master Servicer)
with
a written report of all expenses and advances incurred by the Servicer pursuant
to this Section 8.04, and the Trustee from the assets of the Trust Fund promptly
shall reimburse the Servicer for all amounts advanced by it pursuant to the
preceding sentence except when the claim in any way relates to the failure
of
the Servicer to service and administer the Mortgage Loans in strict compliance
with the terms of this Agreement or the gross negligence, bad faith or willful
misconduct of this Servicer.
(b)
by
(1)
replacing the words “the Purchaser, each affiliate of the Purchaser” with “the
Trust Fund, the Depositor, the Trustee, the Master Servicer,” and (2) deleting
the words “or the Depositor” in Section 8.04(b).
A-12
(c) by
replacing the words “the Purchaser, any Depositor” with “the Purchaser, the
Master Servicer, the Trustee, the Trust Fund, any Depositor” in each
instance.
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32.
|
Section
10.01 (Events of Default) is hereby amended by (i) changing any reference
to “Purchaser” to “Master Servicer” and (ii) replacing the last paragraph
thereof with the following:
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Upon
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 a successor Servicer appointed by
the
Xxxxxx Brothers Holdings Inc. and the Master Servicer. Upon written request
from
the Seller, the Servicer shall prepare, execute and deliver to the successor
entity designated by the Seller any and all documents and other instruments,
place in such successor’s possession all Servicing Files, and do or cause to be
done all other acts or things necessary or appropriate to effect the purposes
of
such notice of termination, including but not limited to the transfer and
endorsement or assignment of the Mortgage Loans and related documents, at the
Servicer’s sole expense. The Servicer shall cooperate with Xxxxxx Brothers
Holdings Inc. and the Master Servicer 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
Custodial Account or Escrow Account or thereafter received with respect to
the
Mortgage Loans.
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33.
|
Section
10.02 (Waiver of Defaults) is hereby amended by changing the reference
to
“Purchaser” to “Master Servicer with the prior written consent of the
Trustee.”
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34.
|
Section
11.01 (Termination) is hereby amended as
follows:
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(a) by
restating subclause (ii) thereof to read as below and adding the following
sentence after the first sentence of Section 11.01:
(ii)
the
exercise of the Master Servicer’s right pursuant to Section 10.01 to terminate
this Agreement upon an Event of Default, provided such termination is also
acceptable to the Trustee and the Rating Agencies.
At
the
time of any termination of the Servicer pursuant to Section 11.01, the Servicer
shall be entitled to all accrued and unpaid Servicing Fees and unreimbursed
Servicing Advances and Monthly Advances; provided,
however,
in the
event of a termination for cause under Section 10.01 hereof, such unreimbursed
amounts shall not be reimbursed to the Servicer until such amounts are received
by the Trust Fund from the related Mortgage Loans.
(b) by
replacing the words “Neither the Purchaser nor any Depositor” with “None of the
Trust Fund, the Depositor, the Trustee or the Master Servicer” in each
instance.
(c) by
replacing the words “the Purchaser or Depositor” with “the Trust Fund, the
Depositor, the Trustee or the Master Servicer” in each instance.
(d) by
replacing the words “Neither the Purchaser nor any Depositor” with “None of the
Trust Fund, the Depositor, the Trustee or the Master Servicer” in each
instance.
A-13
(e) by
replacing the words “the Purchaser (or any designee of the Purchaser, such as a
master servicer) and any Depositor” with “the Trust Fund, the Depositor, the
Trustee and the Master Servicer”
(f) by
replacing the words “the Purchaser (or such designee) or such Depositor” with
“such party”.
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35.
|
Section
11.02 (Termination Without Cause) is hereby amended by deleting the
first
two paragraphs of such section in their entirety and replacing them
with
the following two paragraphs:
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This
Agreement shall terminate upon: (i) the later of (a) the distribution of the
final payment or liquidation proceeds on the last Mortgage Loan to the Trust
Fund (or advances by the Seller for the same), and (b) the disposition of all
REO Property acquired upon foreclosure of the last Mortgage Loan and the
remittance of all funds due hereunder, or (ii) mutual consent of the Seller,
Xxxxxx Brothers Bank, FSB and the Master Servicer in writing or (iii) at the
sole option of the Xxxxxx Brothers Bank, FSB, without cause, upon 30 days
written notice. Any such notice of termination shall be in writing and delivered
to the Seller by registered mail to the address set forth at the beginning
of
this Agreement. The Master Servicer, the Trustee and the Seller shall comply
with the termination procedures set forth in Sections 10.01 and
12.01.
In
connection with any such termination referred to in clause (ii) or (iii) above,
Xxxxxx Brothers Bank, FSB will be responsible for reimbursing the Seller for
all
unreimbursed out-of-pocket Servicing Advances within 15 Business Days following
the date of termination and other reasonable and necessary out-of-pocket costs
associated with any transfer of servicing.
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36.
|
Section
12.01 (Successor to Seller) is hereby amended in its entirety to
read as
follows:
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Simultaneously
with the termination of the Servicer’s responsibilities and duties under this
Agreement pursuant to Sections 8.05, 10.01, 11.01(ii) or 11.02, the Master
Servicer shall, in accordance with the provisions of the Trust Agreement (i)
succeed to and assume all of the Servicer’s responsibilities, rights, duties and
obligations under this Agreement, or (ii) appoint a successor meeting the
eligibility requirements of this Agreement, and which shall succeed to all
rights and assume all of the responsibilities, duties and liabilities of the
Servicer under this Agreement with the termination of the Servicer’s
responsibilities, duties and liabilities under this Agreement. Any successor
to
the Servicer that is not at that time a Servicer of other mortgage loans for
the
Trust Fund shall be subject to the approval of the Master Servicer, Xxxxxx
Brothers Holdings Inc., the Trustee and each Rating Agency (as such term is
defined in the Trust Agreement). Unless the successor servicer is at that time
a
servicer of other mortgage loans for the Trust Fund, each Rating Agency must
deliver to the Trustee a letter to the effect that such transfer of servicing
will not result in a qualification, withdrawal or downgrade of the then-current
rating of any of the Certificates. In connection with such appointment and
assumption, the Master Servicer or Xxxxxx Brothers Holdings Inc., as applicable,
may make such arrangements for the compensation of such successor out of
payments on the Mortgage Loans as it and such successor shall agree;
provided,
however,
that no
such compensation shall be in excess of that permitted the Servicer under this
Agreement. 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 the Servicer pursuant
to the aforementioned sections shall not become effective until a successor
shall be appointed pursuant to this Section 12.01 and shall in no event relieve
the Servicer of the representations and warranties made pursuant to Sections
4.01 and 4.02 and the remedies available to the Trust Fund under Section 4.03
shall be applicable to the Servicer notwithstanding any such resignation or
termination of the Servicer, or the termination of this Agreement.
A-14
Within
a
reasonable period of time, but in no event longer than 30 days of the
appointment of a successor entity, the Servicer shall prepare, execute and
deliver to the successor entity any and all documents and other instruments,
place in such successor’s possession all Servicing Files, and do or cause to be
done all other acts or things necessary or appropriate to effect the purposes
of
such notice of termination. The Servicer shall cooperate with the Trustee and
the Master Servicer, as applicable, and such successor in effecting the
termination of the Servicer’s responsibilities and rights hereunder and the
transfer of servicing responsibilities to the successor Servicer, including
without limitation, the transfer to such successor for administration by it
of
all cash amounts which shall at the time be credited by the Servicer to the
Account or any Escrow Account or thereafter received with respect to the
Mortgage Loans.
Any
successor appointed as provided herein shall execute, acknowledge and deliver
to
the Trustee, the Servicer and the Master Servicer an instrument (i) accepting
such appointment, wherein the successor shall make an assumption of the due
and
punctual performance and observance of each covenant and condition to be
performed and observed by the Servicer under this Agreement, 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. Any termination or
resignation of the Servicer or termination of this Agreement pursuant to
Sections 8.05, 10.01, 11.01 or 11.02 shall not affect any claims that the Master
Servicer or the Trustee may have against the Servicer arising out of the
Servicer’s actions or failure to act prior to any such termination or
resignation.
The
Servicer shall deliver within three (3) Business Days of the appointment of
a
successor Servicer the funds in the Custodial Account and Escrow Account and
all
Mortgage Loan Documents and related documents and statements held by it
hereunder to the successor Servicer and the Servicer shall account for all
funds
and shall execute and deliver such instruments and do such other things as
may
reasonably be required to more fully and definitively vest in the successor
all
such rights, powers, duties, responsibilities, obligations and liabilities
of
the Servicer.
Upon
a
successor’s acceptance of appointment as such, the Servicer shall notify the
Trustee and Master Servicer of such appointment in accordance with the notice
procedures set forth herein.
Except
as
otherwise provided in this Agreement, all reasonable costs and expenses incurred
in connection with any transfer of servicing hereunder (whether as a result
of
termination or removal of the Servicer or resignation of the Servicer or
otherwise), including, without limitation, the costs and expenses of the Master
Servicer or any other Person in appointing a successor servicer, or of the
Master Servicer in assuming the responsibilities of the Servicer hereunder,
or
of transferring the Servicing Files and the other necessary data to the
successor servicer shall be paid by the terminated, removed or resigning
Servicer from its own funds without reimbursement.
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37.
|
Section
12.02 (Amendment) is hereby amended by replacing the words “by the Seller
and the Purchaser by written agreement signed by the Seller and the
Purchaser” with “by written agreement by the Servicer and Xxxxxx Brothers
Holdings Inc., with the written consent of the Master Servicer and
the
Trustee.”
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A-15
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38.
|
Sections
12.03 (Closing), 12.04 (Closing Documents) and 12.05 (Costs) are
hereby
deleted in their entirety.
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39.
|
Section
12.07 (Duration of Agreement) is hereby amended by deleting the last
sentence thereof.
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40.
|
Section
12.13 (Assignment by Purchaser) is hereby deleted in its entirety
and
replaced with the following:
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Acknowledgement.
The
Servicer hereby acknowledges that the rights of Xxxxxx Brothers Holdings Inc.
under the PWSA, as amended by this Agreement, will be assigned to SASCO under
the Mortgage Loan Sale and Assignment Agreement, and subsequently to the Trust
Fund under the Trust Agreement and agrees that the Mortgage Loan Sale and
Assignment Agreement and the Trust Agreement will each be an assignment and
assumption agreement or other assignment document required pursuant to this
Section 12.13 and
will
constitute an assignment and assumption of the rights of Xxxxxx Brothers
Holdings Inc. under the PWSA to SASCO and the Trust Fund, as applicable. In
addition, the Trust Fund will make a REMIC election. The Servicer hereby
consents to such assignment and assumption and acknowledges the Trust Fund’s
REMIC election.
|
41.
|
Section
12.14 (No Personal Solicitation) is hereby amended by replacing the
words
“the Purchaser” with “Xxxxxx Brothers Holdings Inc.” in each
instance.
|
|
42.
|
Section
12.18 (Intention of the Parties) is hereby amended as
follows:
|
(a) by
replacing the words “the Purchaser and any Depositor” with “the Purchaser, the
Master Servicer, the Trustee, the Trust Fund and any Depositor” in each
instance.
(b) by
replacing the words “the Purchaser or any Depositor” with “the Purchaser, the
Master Servicer, the Trustee, the Trust Fund or any Depositor” in each
instance.
(c) by
replacing the words “Neither the Purchaser nor any Depositor” with “None of the
Trust Fund, the Depositor, the Trustee or the Master Servicer” in each
instance.
(d) by
replacing the words “the Purchaser to deliver to the Purchaser (including any of
its assignees or designees) and any Depositor” with “the Trust Fund, the
Depositor, the Trustee or the Master Servicer to deliver to such party
(including any of its assignees or designees)”.
(e) by
replacing the words “the Purchaser or such Depositor” with “the Purchaser, the
Master Servicer, the Trustee, the Trust Fund or such Depositor” in each
instance.
(f)
by
replacing the words “The Purchaser (including any of its assignees or
designees)” with “The Purchaser, the Trust Fund, the Master Servier, the Trustee
and the Depositor (including any of their assignees or designees)”.
A-16
(g) by
replacing the words “in the Purchaser’s reasonable judgment” with “such party’s
reasonable judgment”.
|
43.
|
Exhibit
D-1 to the PWSA (Custodial Account Certification) is hereby amended
by
replacing “GreenPoint Mortgage Funding, Inc., in trust for the Purchaser,
Group No. 2006-FLOW” with “GreenPoint Mortgage Funding, Inc. in trust for
the Xxxxxx XS 2007-9 Trust Fund.”
|
|
44.
|
Exhibit
D-2 to the PWSA (Custodial Account Letter Agreement) is hereby amended
by
replacing “GreenPoint Mortgage Funding, Inc., in trust for the Purchaser
-
Conventional Residential Adjustable and Fixed Rate Mortgage Loans
- Group
No. 2006-FLOW”
with “GreenPoint Mortgage Funding, Inc. in trust for the Xxxxxx XS 2007-9
Trust Fund.”
|
|
45.
|
Exhibit
E-1 to the PWSA (Escrow Account Certification) is hereby amended
by
replacing “GreenPoint Mortgage Funding, Inc., in trust for the Purchaser,
Group No. 2006-FLOW, and various mortgagors” with “GreenPoint Mortgage
Funding, Inc. in trust for the Xxxxxx XS 2007-9 Trust Fund, and various
mortgagors.”
|
|
46.
|
Exhibit
E-2 to the PWSA (Escrow Account Letter Agreement) is hereby amended
by
replacing “GreenPoint Mortgage Funding, Inc., in trust for the Purchaser
-
Conventional Residential Adjustable and Fixed Rate Mortgage Loans
- Group
No. 2006-FLOW”
with “GreenPoint Mortgage Funding, Inc. in trust for the Xxxxxx XS 2007-9
Trust Fund, and various
mortgagors.”
|
|
47.
|
Exhibit
D hereto is added to the PWSA as Exhibit M
thereto.
|
|
48.
|
Exhibit
E hereto is added to the PWSA as Exhibit N
thereto.
|
|
49.
|
Exhibit
K to the PWSA is hereby replaced in its entirety with Exhibit F
hereto.
|
|
50.
|
Exhibit
L to the PWSA is hereby replaced in its entirety with Exhibit G
hereto.
|
|
51.
|
Intended
Third Party Beneficiaries.
Notwithstanding any provision herein to the contrary, the parties
to this
Agreement agree that it is appropriate, in furtherance of the intent
of
such parties as set forth herein, that the Master Servicer, the Depositor
and the Trustee receive the benefit of the provisions of this Agreement
as
intended third party beneficiaries of this Agreement to the extent
of such
provisions. The Servicer shall have the same obligations to the Master
Servicer, the Depositor and the Trustee as if they were parties to
this
Agreement, and the Master Servicer, the Depositor and the Trustee
shall
have the same rights and remedies to enforce the provisions of this
Agreement as if they were parties to this Agreement. The Servicer
shall
only take direction from the Master Servicer (if direction by the
Master
Servicer is required under this Agreement) unless otherwise directed
by
this Agreement. Notwithstanding the foregoing, all rights and obligations
of the Master Servicer, the Depositor and the Trustee hereunder (other
than the right to indemnification) shall terminate upon termination
of the
Trust Agreement and of the Trust Fund pursuant to the Trust
Agreement.
|
A-17
EXHIBIT
B
Flow
Mortgage Loan Purchase, Warranties and Servicing Agreement
B-1
EXECUTION
XXXXXX
BROTHERS BANK, FSB
Purchaser
and
GREENPOINT
MORTGAGE FUNDING, INC.
Seller
AMENDED
AND RESTATED FLOW MORTGAGE LOAN PURCHASE, WARRANTIES AND SERVICING
AGREEMENT
Dated
as
of January 1, 2007
Conventional
Residential Adjustable and Fixed Rate Mortgage Loans
Group
No.
2006-FLOW
TABLE
OF
CONTENTS
|
Page
|
||
|
ARTICLE
I
|
||
|
DEFINITIONS
|
||
|
ARTICLE
II
|
||
|
CONVEYANCE
OF MORTGAGE LOANS; POSSESSION OF MORTGAGE FILES;
BOOKS
AND RECORDS; CUSTODIAL AGREEMENT;
DELIVERY
OF DOCUMENTS
|
||
|
Section
2.01
|
Conveyance
of Mortgage Loans; Possession of Mortgage Files; Maintenance of Servicing
Files.
|
15
|
|
Section
2.02
|
Books
and Records; Transfers of Mortgage Loans.
|
16
|
|
Section
2.03
|
Custodial
Agreement; Delivery of Documents.
|
17
|
|
Section
2.04
|
MERS
Designated Mortgage Loans.
|
18
|
|
ARTICLE
III
|
||
|
PURCHASE
PRICE
|
||
|
ARTICLE
IV
|
||
|
REPRESENTATIONS
AND WARRANTIES;
REMEDIES
AND BREACH
|
||
|
Section
4.01
|
Seller
Representations and Warranties.
|
19
|
|
Section
4.02
|
Representations
and Warranties Regarding Individual Mortgage Loans.
|
22
|
|
Section
4.03
|
Remedies
for Breach of Representations and Warranties.
|
37
|
|
Section
4.04
|
Post
Closing Due Diligence.
|
39
|
|
Section
4.05
|
Restrictions
and Requirements Applicable in the Event that a Mortgage Loan is
Acquired
by a REMIC.
|
40
|
|
ARTICLE
V
|
||
|
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
|
||
|
Section
5.01
|
Seller
to Act as Servicer.
|
42
|
|
Section
5.02
|
Liquidation
of Mortgage Loans.
|
43
|
|
Section
5.03
|
Collection
of Mortgage Loan Payments.
|
44
|
|
Section
5.04
|
Establishment
of and Deposits to Custodial Account.
|
44
|
|
Section
5.05
|
Permitted
Withdrawals From Custodial Account.
|
46
|
|
Section
5.06
|
Establishment
of and Deposits to Escrow Account.
|
47
|
|
Section
5.07
|
Permitted
Withdrawals From Escrow Account.
|
48
|
|
Section
5.08
|
Completion
and Recordation of Assignment of Mortgage.
|
48
|
|
Section
5.09
|
Payment
of Taxes, Insurance and Other Charges.
|
49
|
|
Section
5.10
|
Protection
of Accounts.
|
49
|
|
Section
5.11
|
Maintenance
of Hazard Insurance.
|
50
|
|
Section
5.12
|
Maintenance
of Mortgage Insurance.
|
51
|
|
Section
5.13
|
Maintenance
of Fidelity Bond and Errors and Omissions Insurance.
|
52
|
|
Section
5.14
|
Inspections.
|
52
|
|
Section
5.15
|
Restoration
of Mortgaged Property.
|
53
|
|
Section
5.16
|
Maintenance
of PMI and/or LPMI Policy; Claims.
|
53
|
|
Section
5.17
|
Title,
Management and Disposition of REO Property.
|
55
|
|
Section
5.18
|
Real
Estate Owned Reports.
|
56
|
|
Section
5.19
|
Liquidation
Reports.
|
57
|
|
Section
5.20
|
Notification
of Adjustments.
|
57
|
|
Section
5.21
|
Reports
of Foreclosures and Abandonments of Mortgaged Property.
|
57
|
|
Section
5.22
|
Prepayment
Charges.
|
57
|
|
Section
5.23
|
Credit
Reporting.
|
57
|
|
Section
5.24
|
Safeguarding
Customer Information.
|
58
|
|
Section
5.25
|
PMI
Obligations.
|
58
|
|
ARTICLE
VI
|
||
|
PAYMENTS
TO PURCHASER
|
||
|
Section
6.01
|
Remittances.
|
59
|
|
Section
6.02
|
Statements
to Purchaser.
|
59
|
|
Section
6.03
|
Due
Dates Other Than the First of the Month.
|
60
|
|
Section
6.04
|
Monthly
Advances by Seller.
|
60
|
|
ARTICLE
VII
|
||
|
GENERAL
SERVICING PROCEDURES
|
||
|
Section
7.01
|
Transfers
of Mortgaged Property.
|
61
|
|
Section
7.02
|
Satisfaction
of Mortgages and Release of Mortgage Files.
|
61
|
|
Section
7.03
|
Servicing
Compensation.
|
62
|
|
Section
7.04
|
Reserved.
|
62
|
|
Section
7.05
|
Annual
Statement as to Compliance.
|
62
|
|
Section
7.06
|
Right
to Examine Seller Records.
|
63
|
|
Section
7.07
|
Assessment
of Servicing Compliance.
|
63
|
|
Section
7.08
|
Use
of Subservicers and Subcontractors.
|
64
|
-ii-
|
ARTICLE
VIII
|
||
|
AGENCY
TRANSFER; SECURITIZATION
TRANSACTION
|
||
|
Section
8.01
|
Removal
of Mortgage Loans from Inclusion Under this Agreement Upon an Agency
Transfer, or a Securitization Transaction on One or More Reconstitution
Dates.
|
66
|
|
Section
8.02
|
Transfer
of Servicing Following Reconstitution.
|
73
|
|
Section
8.03
|
Purchaser’s
Repurchase and Indemnification Obligations.
|
74
|
|
Section
8.04
|
Indemnification;
Third Party Claims.
|
75
|
|
Section
8.05
|
Transfer
Of Servicing.
|
76
|
|
ARTICLE
IX
|
||
|
THE
SELLER
|
||
|
Section
9.01
|
Merger
or Consolidation of the Seller.
|
77
|
|
Section
9.02
|
Limitation
on Liability of Seller and Others.
|
77
|
|
Section
9.03
|
Limitation
on Resignation and Assignment by Seller.
|
78
|
|
Section
9.04
|
Limitation
on Assignment by the Seller.
|
78
|
|
ARTICLE
X
|
||
|
DEFAULT
|
||
|
Section
10.01
|
Events
of Default.
|
79
|
|
Section
10.02
|
Waiver
of Defaults.
|
80
|
|
ARTICLE
XI
|
||
|
TERMINATION
|
||
|
Section
11.01
|
Termination.
|
81
|
|
Section
11.02
|
Termination
Without Cause.
|
82
|
|
ARTICLE
XII
|
||
|
MISCELLANEOUS
PROVISIONS
|
||
|
Section
12.01
|
Successor
to Seller.
|
83
|
|
Section
12.02
|
Amendment.
|
84
|
|
Section
12.03
|
Closing.
|
84
|
|
Section
12.04
|
Closing
Documents.
|
85
|
|
Section
12.05
|
Costs.
|
86
|
|
Section
12.06
|
Governing
Law.
|
86
|
|
Section
12.07
|
Duration
of Agreement.
|
87
|
-iii-
|
Section
12.08
|
Notices.
|
87
|
|
Section
12.09
|
Severability
of Provisions.
|
87
|
|
Section
12.10
|
Relationship
of Parties.
|
87
|
|
Section
12.11
|
Execution;
Successors and Assigns.
|
88
|
|
Section
12.12
|
Recordation
of Assignments of Mortgage.
|
88
|
|
Section
12.13
|
Assignment
by Purchaser.
|
88
|
|
Section
12.14
|
No
Personal Solicitation.
|
88
|
|
Section
12.15
|
Confidential
Information
|
89
|
|
Section
12.16
|
Appointment
and Designation of Master Servicer.
|
89
|
|
Section
12.17
|
Waivers;
Other Agreements.
|
90
|
|
Section
12.18
|
Intention
of the Parties.
|
90
|
|
Section
12.19
|
Exhibits.
|
91
|
|
Section
12.20
|
General
Interpretive Principles.
|
91
|
EXHIBITS
|
EXHIBIT
A-1
|
ACKNOWLEDGMENT
AND CONVEYANCE AGREEMENT
|
|
EXHIBIT
A-2
|
MORTGAGE
LOAN SCHEDULE DATA FIELDS
|
|
EXHIBIT
B
|
CONTENTS
OF EACH MORTGAGE FILE
|
|
EXHIBIT
C
|
RESERVED
|
|
EXHIBIT
D-1
|
FORM
OF CUSTODIAL ACCOUNT CERTIFICATION
|
|
EXHIBIT
D-2
|
FORM
OF CUSTODIAL ACCOUNT LETTER AGREEMENT
|
|
EXHIBIT
E-1
|
FORM
OF ESCROW ACCOUNT CERTIFICATION
|
|
EXHIBIT
E-2
|
FORM
OF ESCROW ACCOUNT LETTER AGREEMENT
|
|
EXHIBIT
F-1
|
FORM
OF MONTHLY REMITTANCE ADVICE
|
|
EXHIBIT
F-2
|
STANDARD
LAYOUT FOR DEFAULTED LOAN REPORT
|
|
EXHIBIT
G
|
RESERVED
|
|
EXHIBIT
H
|
SELLER’S
OFFICER’S CERTIFICATE
|
|
EXHIBIT
I
|
FORM
OF OPINION OF COUNSEL TO SELLER
|
|
EXHIBIT
J-1
|
SECURITY
RELEASE CERTIFICATION
|
|
EXHIBIT
J-2
|
SECURITY
RELEASE CERTIFICATION
|
|
EXHIBIT
K
|
FORM
OF ANNUAL CERTIFICATION
|
|
EXHIBIT
L
|
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF
COMPLIANCE
|
-iv-
This
is
an Amended and Restated Flow Mortgage Loan Purchase, Warranties and Servicing
Agreement for residential conventional adjustable rate first lien and fixed
rate
first and second lien mortgage loans, dated and effective as of January 1,
2007,
and is executed between Xxxxxx Brothers Bank, FSB, as purchaser (the
“Purchaser”)
and
GreenPoint Mortgage Funding, Inc., as seller (the “Seller”).
WITNESSETH:
WHEREAS,
the Purchaser and the Seller are parties to a Flow Mortgage Loan Purchase,
Warranties and Servicing Agreement, dated as of August 1, 2003 (the “Existing
Flow Agreement”), by and between the Purchaser and the Seller; and
WHEREAS,
the Purchaser and the Seller have determined to amend and restate the Existing
Flow Agreement in its entirety;
WHEREAS,
the Seller has agreed to sell from time to time to the Purchaser, and the
Purchaser has agreed to purchase from time to time from the Seller, certain
fixed and adjustable rate residential first and second lien mortgage loans
(the
“Mortgage
Loans”)
on a
servicing retained basis as described herein, and which shall be delivered
as
whole loans on the related Closing Date, as defined below;
WHEREAS,
each Mortgage Loan will be secured by a mortgage, deed of trust or other
security instrument creating a first or second lien on a residential dwelling
located in the jurisdiction indicated on the related Mortgage Loan Schedule;
and
WHEREAS,
the Purchaser and the Seller wish to prescribe the manner of the conveyance,
servicing and control of the Mortgage Loans.
NOW,
THEREFORE, in consideration of the premises and mutual agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Purchaser and the Seller
agree
as follows:
ARTICLE
I
DEFINITIONS
Whenever
used herein, the following words and phrases, unless the context otherwise
requires, shall have the following meanings:
Accepted
Servicing Practices:
With
respect to any Mortgage Loan, those mortgage servicing practices (i) of prudent
mortgage lending institutions which service mortgage loans of the same type
as
such Mortgage Loan in the jurisdiction where the related Mortgaged Property
is
located and (ii) in accordance with all applicable state, federal and local
laws.
-1-
Acknowledgment
and Conveyance Agreement:
The
agreement, substantially in the form of Exhibit A-1 hereto, to be executed
by
the Seller and the Purchaser on each Closing Date.
Affiliate:
With
respect to any specified Person, any other Person controlling or controlled
by
or under common control with such specified Person. For the purposes of this
definition, “control” when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract
or
otherwise and the terms “controlling” and “controlled” have meanings correlative
to the foregoing.
Agency
Transfer:
The
sale or transfer by Purchaser of some or all of the Mortgage Loans to Xxxxxx
Xxx
under its Cash Purchase Program or its MBS Swap Program (Special Servicing
Option) or to Xxxxxxx Mac under its Xxxxxxx Xxx Xxxx Program or Gold PC Program,
retaining the Seller as “servicer thereunder”.
Agreement:
This
Amended and Restated Flow Mortgage Loan Purchase, Warranties and Servicing
Agreement and all amendments hereof and supplements hereto.
ALTA:
The
American Land Title Association or any successor thereto.
Ancillary
Income:
All
income derived from the Mortgage Loans, excluding Servicing Fees and Prepayment
Charges attributable to the Mortgage Loans, including but not limited to, late
charges, fees received with respect to checks or bank drafts returned by the
related bank for non-sufficient funds, assumption fees, optional insurance
administrative fees and all other incidental fees and charges. The Seller shall
retain all Ancillary Income to the extent not required to be deposited into
the
Custodial Account.
Appraised
Value:
The
value set forth in an appraisal made in connection with the origination of
the
related Mortgage Loan as the value of the Mortgaged Property.
Approved
Flood Policy Insurer:
Any of
the following insurers: First American, Flood Data Services, Inc., Flood Zone,
Inc., GEOTrac, Transamerica Flood Hazard Certification or another insurer
acceptable to the Purchaser.
Approved
Tax Service Contract Provider:
Any of
the following providers: First American, TransAmerica, LandAmerica Tax Services,
Fidelity or another tax servicer contract provider acceptable to the
Purchaser.
ARM
Mortgage Loan:
A
Mortgage Loan pursuant to which the interest rate shall be adjusted from time
to
time in accordance with the related Mortgage Note.
Assignment
of Mortgage:
An
assignment of the Mortgage, notice of transfer or equivalent instrument in
recordable form, sufficient under the laws of the jurisdiction wherein the
related Mortgaged Property is located to reflect the sale of the Mortgage to
the
Purchaser, or in the case of a MERS Designated Mortgage Loan, a confirmed
electronic transmission to MERS, identifying a transfer of ownership of the
related Mortgage to the Purchaser or its designee.
-2-
Assignment
of Proprietary Lease:
With
respect to a Cooperative Loan, as assignment of the Proprietary Lease sufficient
under the laws of the jurisdiction wherein the related Cooperative Apartment
is
located to effect the assignment of such Proprietary Lease.
BIF: The
Bank
Insurance Fund, or any successor thereto.
BPO:
A
broker’s price opinion obtained by the Purchaser.
Buydown
Agreement:
A
“Buydown Deposit Agreement” or similar arrangement pursuant to which a builder,
seller, lender, borrower or other allowable contributor has deposited funds
with
the originator of a Mortgage Loan for application against Monthly Payments
on
such Mortgage Loan for a fixed period of time.
Buydown
Funds:
With
respect to any Buydown Mortgage Loan, the amount set forth on the related
Mortgage Loan Schedule, which amount is held by the servicer of the Mortgage
Loan for application against Monthly Payments with respect to such Mortgage
Loan.
Buydown
Mortgage Loan:
A
Mortgage Loan that is subject to a Buydown Agreement, each such loan being
specified on the related Mortgage Loan Schedule.
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 State of New York and California are authorized
or
obligated by law or executive order to be closed.
Closing
Date:
Means a
date on which the Seller shall sell and the Purchaser shall purchase Mortgage
Loans under this Agreement as set forth in the related Purchase Price and Terms
Agreement.
Code:
The
Internal Revenue Code of 1986, as it may be amended from time to time or any
successor statute thereto, and applicable U.S. Department of the Treasury
regulations issued pursuant thereto.
Combined
Loan-to-Value Ratio or CLTV:
With
respect to any Second Lien Mortgage Loan, the ratio of (a) the sum of (i) the
outstanding principal balance of the Mortgage Loan at origination and (ii)
the
original principal amount of any related First Lien (as of the Cut-off
Date)(unless otherwise indicated) and (b) the lesser of (i) the Appraised Value
of the Mortgaged Property and (ii) if the Mortgage Loan was made to finance
the
acquisition of the related Mortgaged Property, the purchase price of the
Mortgaged Property, expressed as a percentage.
Commission:
The
United States Securities and Exchange Commission.
Condemnation
Proceeds:
All
awards or settlements in respect of a Mortgaged Property, whether permanent
or
temporary, partial or entire, by exercise of the power of eminent domain or
condemnation, to the extent not required to be released to a Mortgagor in
accordance with the terms of the related Mortgage Loan Documents.
-3-
Cooperative:
The
entity that holds title (fee or an acceptable leasehold estate) to all of the
real property that the Project comprises, including the land, separate dwelling
units and all common areas.
Cooperative
Apartment:
The
specific dwelling unit relating to a Cooperative Loan.
Cooperative
Loan: A
Mortgage Loan that is secured by Cooperative Shares and a Proprietary Lease
granting exclusive rights to occupy the related Cooperative
Apartment.
Cooperative
Shares:
The
shares of stock issued by a Cooperative, owned by the Mortgagor, and allocated
to a Cooperative Apartment.
Credit
Grade:
As
defined in the Underwriting Guidelines.
Custodial
Account:
The
separate account or accounts created and maintained pursuant to Section
4.04.
Custodial
Agreement:
The
agreement governing the retention of the originals of each Mortgage Note,
Mortgage, Assignment of Mortgage and other Mortgage Loan Documents.
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.
Customer
Information:
The
nonpublic personal information (as defined in 15 U.S.C. § 6809(4)) of the
Purchaser's former, current or prospective customers or employees, including
the
Mortgagors (and/or clients or prospective customers of the Purchaser's parent,
affiliated or subsidiary companies) held or received by the Seller in connection
with the performance of its obligations under this Agreement, including, but
not
limited to (i) an individual's name, address, e-mail address, IP address,
telephone number and/or social security number, (ii) the fact that an individual
has a relationship with the Seller or the Purchaser and/or its parent,
affiliated or subsidiary companies or (iii) an individual's account
information.
Cut-off
Date:
With
respect to any Mortgage Loan purchased on a Closing Date, the first day of
the
month in which the related Closing Date occurs, or such other date as may be
set
forth in the related Purchase Price and Terms Agreement.
Deleted
Mortgage Loan:
A
Mortgage Loan which is repurchased by the Seller in accordance with the terms
of
this Agreement.
Depositor:
The
depositor, as such term is defined in Regulation AB, with respect to any
Securitization Transaction.
Determination
Date:
The
last day (or if such last day is not a Business Day, the Business Day
immediately preceding such last day) of the month immediately preceding the
month of the related Remittance Date.
-4-
Disqualified
Organization:
An
organization defined as such in Section 860E(e) of the Code.
Distressed
Mortgage Loan:
As of
any Determination Date, any Mortgage Loan that is delinquent in payment for
a
period of ninety (90) days or more, without giving effect to any grace period
permitted by the related Mortgage Loan, or for which the Seller has accepted
a
deed in lieu of foreclosure.
Due
Date:
The day
of the month on which the Monthly Payment is due on a Mortgage Loan, exclusive
of any days of grace. With respect to the Mortgage Loans for which payment
from
the Mortgagor is due on a day other than the first day of the month, such
Mortgage Loans will be treated as if the Monthly Payment is due on the first
day
of the month following the actual Due Date.
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.
Eligible
Investments:
Any one
or more of the obligations and securities listed below which investment provides
for a date of maturity not later than the Determination Date in each
month:
(a) direct
obligations of, and obligations fully guaranteed by, the United States of
America, or any agency or instrumentality of the United States of America the
obligations of which are backed by the full faith and credit of the United
States of America; and
(b) federal
funds, demand and time deposits in, certificates of deposits of, or bankers’
acceptances issued by, any depository institution or trust company incorporated
or organized under the laws of the United States of America or any state thereof
and subject to supervision and examination by federal and/or state banking
authorities, so long as at the time of such investment or contractual commitment
providing for such investment the commercial paper or other short-term debt
obligations of such depository institution or trust company (or, in the case
of
a depository institution or trust company which is the principal subsidiary
of a
holding company, the commercial paper or other short-term debt obligations
of
such holding company) are rated “P-1” by Xxxxx’x Investors Service, Inc. and the
long-term debt obligations of such holding company) are rated “P-1” by Xxxxx’x
Investors Service, Inc. and the long-term debt obligations of such depository
institution or trust company (or, in the case of a depository institution or
trust company which is the principal subsidiary of a holding company, the
long-term debt obligations of such holding company) are rated at least “Aa” by
Xxxxx’x Investors Service, Inc.;
provided,
however,
that no
such instrument shall be an Eligible Investment if such instrument evidences
either (i) a right to receive only interest payments with respect to the
obligations underlying such instrument, or (ii) both principal and interest
payments derived from obligations underlying such instrument and the principal
and interest payments with respect to such instrument provide a yield to
maturity of greater than 120% of the yield to maturity at par of such underlying
obligations; provided, further, that upon a Securitization Transaction, the
Eligible Investments permitted thereunder shall be set forth in the related
Reconstitution Agreement.
-5-
Notwithstanding
anything herein to the contrary, with respect to Mortgage Loans subject to
an
Agency Transfer or a Securitization Transaction, in the event that the
applicable Reconstitution Agreement has a more limiting definition of “Eligible
Investments”, then the definition contained in such Reconstitution Agreement
shall apply to such Mortgage Loans.
Errors
and Omissions Insurance Policy:
An
errors and omissions insurance policy to be maintained by the Seller pursuant
to
Section 5.13.
Escrow
Account:
The
separate account or accounts created and maintained pursuant to Section
5.06.
Escrow
Payments:
With
respect to any Mortgage Loan, the amounts constituting ground rents, taxes,
assessments, water rates, sewer rents, municipal charges, mortgage insurance
premiums, fire and hazard insurance premiums, condominium charges, and any
other
payments required to be escrowed by the Mortgagor with the mortgagee pursuant
to
the Mortgage or any other related document.
Event
of Default:
Any one
of the conditions or circumstances enumerated in Section 10.01.
Exchange
Act.
The
Securities Exchange Act of 1934, as amended.
Xxxxxx
Mae:
Xxxxxx
Xxx, or any successor thereto.
Xxxxxx
Mae Guides:
The
Xxxxxx Xxx Selling Guide and the Xxxxxx Mae Servicing Guide and all amendments
or additions thereto.
FDIC:
The
Federal Deposit Insurance Corporation, or any successor thereto.
FICO
Score:
Statistical credit scores obtained by Mortgage lenders in connection with the
loan application to help assess a borrower’s credit worthiness.
Fidelity
Bond:
A
fidelity bond to be maintained by the Seller pursuant to Section
5.13.
First
Lien:
With
respect to any Second Lien Mortgage Loan, the mortgage loan relating to the
corresponding Mortgaged Property having a first priority lien.
Xxxxxxx
Mac:
Xxxxxxx
Mac, or any successor thereto.
Xxxxxxx
Mac Guides:
The
Xxxxxxx Mac Selling Guide and the Xxxxxxx Mac Servicing Guide and all amendments
or additions thereto.
Gross
Margin:
With
respect to each ARM Mortgage Loan, the fixed percentage amount set forth in
the
related Mortgage Note which amount is added to the Index in accordance with
the
terms of the related Mortgage Note to determine, on each Interest Rate
Adjustment Date, the Mortgage Interest Rate for such Mortgage Loan.
-6-
Index:
With
respect to each ARM Mortgage Loan, the index identified in the related Purchase
Price and Terms Agreement.
Insurance
Proceeds:
With
respect to each Mortgage Loan, proceeds of insurance policies insuring the
Mortgage Loan or the related Mortgaged Property.
Interest
Rate Adjustment Date:
With
respect to each ARM Mortgage Loan, the date on which an adjustment to the
Mortgage Interest Rate on a Mortgage Note becomes effective.
Investor:
With
respect to each MERS Designated Mortgage Loan, the Person named on the MERS
System as the investor pursuant to the MERS Procedures Manual.
Lifetime
Rate Cap:
The
provision of the Mortgage Note related to each ARM Mortgage Loan which provides
for an absolute maximum Mortgage Interest Rate thereunder. The Mortgage Interest
Rate during the term of each Mortgage Loan shall not at any time exceed the
Mortgage Interest Rate at the time of origination of such Mortgage Loan by
more
than the Lifetime Rate Cap set forth on the Mortgage Loan Schedule.
Liquidation
Proceeds:
Cash
received in connection with the liquidation of a defaulted Mortgage Loan,
whether through the sale or assignment of such Mortgage Loan, trustee’s sale,
foreclosure sale or otherwise, or the sale of the related Mortgaged Property
if
the Mortgaged Property is acquired in satisfaction of the Mortgage
Loan.
Loan-to-Value
Ratio or LTV:
With
respect to any Mortgage Loan, the ratio (expressed as a percentage) of the
original principal amount of the Mortgage Loan to the lesser of (a) the
Appraised Value of the Mortgaged Property and (b) if the Mortgage Loan was
made
to finance the acquisition of the related Mortgaged Property, the purchase
price
of the Mortgaged Property.
Master
Servicer:
As such
term is defined in Section 12.16.
MERS:
Mortgage Electronic Registration Systems, Inc., a Delaware corporation, and
its
successors in interest.
MERS
Designated Mortgage Loan:
Mortgage Loans for which (a) the Seller has designated or will designate MERS
as, and has taken or will take such action as is necessary to cause MERS to
be,
the mortgagee of record, as nominee for the Seller, in accordance with the
MERS
Procedures Manual and (b) the Seller has designated or will designate the
Purchaser as the Investor on the MERS System.
MERS
Identification Number:
The
eighteen digit number permanently assigned to each MERS Designated Mortgage
Loan.
-7-
MERS
Procedures Manual:
The
MERS Procedures Manual, as it may be amended, supplemented or otherwise modified
from time to time.
MERS
Report:
The
report from the MERS System listing MERS Designated Mortgage Loans and other
information.
MERS
System:
MERS
mortgage electronic registry system, as more particularly described in the
MERS
Procedures Manual.
Monthly
Advance:
With
respect to each Remittance Date and each Mortgage Loan following Reconstitution,
an amount equal to the Monthly Payment (with the interest portion of such
Monthly Payment adjusted to the Mortgage Loan Remittance Rate) which was due
on
the Mortgage Loan on the Due Date in the related Due Period, and (i) which
was
delinquent immediately preceding the Determination Date and (ii) which was
not
the subject of a previous Monthly Advance.
Monthly
Payment:
The
scheduled monthly payment of principal and interest on a Mortgage
Loan.
Mortgage:
The
mortgage, deed of trust or other instrument securing a Mortgage Note, which
creates a first or second lien on an unsubordinated estate in fee simple or
leasehold estate in real property securing the Mortgage Note.
Mortgage
File:
The
items pertaining to a particular Mortgage Loan referred to in Exhibit
B
annexed
hereto, and any additional documents required to be added to the Mortgage File
pursuant to this Agreement.
Mortgage
Insurance Policy:
A
mortgage blanket hazard insurance policy as described in Section
5.12.
Mortgage
Interest Rate:
The
annual rate of interest borne on a Mortgage Note, which, with respect to each
ARM Mortgage Loan, is adjusted from time to time in accordance with the
provisions of the Mortgage Note, without regard to any modification of the
Mortgage Note.
Mortgage
Interest Rate Cap:
With
respect to each ARM Mortgage Loan, the limit on each Mortgage Interest Rate
adjustment as set forth in the related Mortgage Note.
Mortgage
Loan:
An
individual Mortgage Loan which is the subject of this Agreement, each Mortgage
Loan originally sold and subject to this Agreement being identified on the
Mortgage Loan Schedule annexed as Annex 1 to the related Acknowledgment and
Conveyance Agreement, which Mortgage Loan includes without limitation the
Mortgage File, the Monthly Payments, Principal Prepayments, Liquidation
Proceeds, Condemnation Proceeds, Insurance Proceeds, REO Disposition Proceeds,
Servicing Rights and all other rights, benefits, proceeds and obligations
arising from or in connection with such Mortgage Loan.
Mortgage
Loan Documents:
The
documents listed in Exhibit
B
hereto.
-8-
Mortgage
Loan Package:
A group
of Mortgage Loans sold to the Purchaser by the Seller on a Closing Date and
set
forth on the Mortgage Loan Schedule annexed to the related Acknowledgment and
Conveyance Agreement.
Mortgage
Loan Remittance Rate:
With
respect to each Mortgage Loan, the annual rate of interest remitted to the
Purchaser, which shall be equal to the Mortgage Interest Rate minus the
Servicing Fee Rate.
Mortgage
Loan Schedule:
A
schedule of Mortgage Loans annexed as Annex 1 to each Acknowledgment and
Conveyance Agreement, each such schedule setting forth the data and information
listed on Exhibit
A-2
with
respect to each Mortgage Loan.
Mortgage
Note:
The
Mortgage Note or other evidence of the indebtedness of a Mortgagor secured
by a
Mortgage.
Mortgaged
Property:
The
real property securing repayment of the debt evidenced by a Mortgage Note,
without regard to any Buydown Agreement.
Mortgagor:
The
obligor on a Mortgage Note.
Negative
Amortization Mortgage Loan:
Each
Mortgage Loan that provides
for negative amortization or for the potential for negative
amortization.
Notice
Date:
The
fifteenth calendar day preceding each Transfer Date, or, if such day is not
a
Business Day, the immediately preceding Business Day.
Officer’s
Certificate:
A
certificate signed by the Chairman of the Board, the Vice Chairman of the Board,
the President or a Vice President and by the Treasurer, the Secretary or one
of
the Assistant Treasurers or Assistant Secretaries of the Seller, and delivered
to the Purchaser as required by this Agreement.
Opinion
of Counsel:
A
written opinion of counsel, who may be an employee of the Seller, reasonably
acceptable to the Purchaser, provided that any Opinion of Counsel relating
to
(a) qualification of the Mortgage Loans in a REMIC or (b) compliance with the
REMIC Provisions, must be an opinion of counsel who (i) is in fact independent
of the Seller and any Master Servicer of the Mortgage Loans, (ii) does not
have
any material direct or indirect financial interest in the Seller or any Master
Servicer of the Mortgage Loans or in an Affiliate of any such entity and (iii)
is not connected with the Seller or any Master Servicer of the Mortgage Loans
as
an officer, employee, director or person performing similar
functions.
Periodic
Rate Cap:
The
provision of each Mortgage Note related to each ARM Mortgage Loan which provides
for an absolute maximum amount by which the Mortgage Interest Rate therein
may
increase or decrease on an Interest Rate Adjustment Date above or below the
Mortgage Interest Rate previously in effect. The Periodic Rate Cap for each
ARM
Mortgage Loan is the rate set forth on the related Mortgage Loan Schedule.
-9-
Person:
Any
individual, corporation, partnership, limited liability company, joint venture,
association, joint-stock company, trust, unincorporated organization, government
or any agency or political subdivision thereof.
Pledge
Agreement:
With
respect to a Cooperative Loan, the specific agreement creating a first lien
on
and pledge of the Cooperative Shares and the appurtenant Proprietary
Lease.
Pledge
Instruments:
With
respect to a Cooperative Loan, the Stock Power, the Assignment of the
Proprietary Lease and the Assignment of the Mortgage Note and Pledge
Agreement.
PMI
Policy:
A
policy of primary mortgage guaranty insurance issued by a Qualified Insurer,
as
required by this Agreement with respect to certain Mortgage Loans.
Prepayment
Charge:
With
respect to any Mortgage Loan and Remittance Date, the charges or premiums,
if
any, due in connection with a full or partial prepayment of such Mortgage Loan
during the immediately preceding Principal Prepayment Period in accordance
with
the terms of the related Mortgage Note.
Prepayment
Interest Shortfall Amount:
With
respect to any Mortgage Loan that was subject to a Principal Prepayment in
full
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 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.
Prime
Rate:
The
prime rate announced to be in effect from time to time, as published as the
average rate in The Wall Street Journal.
Principal
Prepayment:
Any
payment or other recovery of principal on a Mortgage Loan which is received
in
advance of its scheduled Due Date, including any Prepayment Charge or premium
thereon and which is not accompanied by an amount of interest representing
scheduled interest due on any date or dates in any month or months subsequent
to
the month of prepayment.
Principal
Prepayment Period:
The
month preceding the month in which the related Remittance Date
occurs.
Project:
With
respect to a Cooperative Loan, all real property owned by the related
Cooperative including the land, separate dwelling units and all common
areas.
Proprietary
Lease:
With
respect to a Cooperative Loan, a lease on a Cooperative Apartment evidencing
the
possessory interest of the Mortgagor in such Cooperative Apartment.
Purchase
Price:
The
price paid on the related Closing Date by the Purchaser to the Seller in
exchange for the Mortgage Loans as calculated in Article III of this
Agreement.
-10-
Purchase
Price and Terms Agreement:
With
respect to each purchase of a Mortgage Loan Package hereunder, that certain
letter agreement by and between the Seller and the Purchaser setting forth
the
general terms, conditions and portfolio characteristics for each Mortgage Loan
Package to be purchased hereunder as of any Closing Date.
Purchaser:
Xxxxxx
Brothers Bank, FSB or its successor in interest or assigns or any successor
to
the Purchaser under this Agreement as herein provided; provided, however, that,
for the purpose of compliance with Regulation AB, references to the Purchaser
shall be deemed to include any assignees or designees of the Purchaser, such
as
any Depositor, a master servicer or a trustee.
Qualified
Appraiser:
An
appraiser who had no interest, direct or indirect, in the Mortgaged Property
or
in any loan made on the security thereof, and whose compensation is not affected
by the approval or disapproval of the Mortgage Loan, and such appraiser and
the
appraisal made by such appraiser both satisfy the requirements of Title XI
of
the Federal Institutions Reform, Recovery and Enforcement Act of 1989 and the
regulations promulgated thereunder, all as in effect on the date the Mortgage
Loan was originated.
Qualified
Correspondent:
Any
Person from which the Seller purchased Mortgage Loans, provided that the
following conditions are satisfied: (i) such Mortgage Loans were originated
pursuant to an agreement between the Seller and such Person that contemplated
that such Person would underwrite mortgage loans from time to time, for sale
to
the Seller, in accordance with underwriting guidelines designated by the Seller
(“Designated Guidelines”) or guidelines that do not vary materially from such
Designated Guidelines; (ii) such Mortgage Loans were in fact underwritten as
described in clause (i) above and were acquired by the Seller within 180 days
after origination; (iii) either (x) the Designated Guidelines were, at the
time
such Mortgage Loans were originated, used by the Seller in origination of
mortgage loans of the same type as the Mortgage Loans for the Seller’s own
account or (y) the Designated Guidelines were, at the time such Mortgage Loans
were underwritten, designated by the Seller on a consistent basis for use by
lenders in originating mortgage loans to be purchased by the Seller; and (iv)
the Seller employed, at the time such Mortgage Loans were acquired by the
Seller, pre-purchase or post-purchase quality assurance procedures (which may
involve, among other things, review of a sample of mortgage loans purchased
during a particular time period or through particular channels) designed to
ensure that Persons from which it purchased mortgage loans properly applied
the
underwriting criteria designated by the Seller.
Qualified
Depository:
A
depository the accounts of which are insured by the FDIC through the BIF or
the
SAIF and the debt obligations of which are rated AA or better by Standard &
Poor’s Corporation.
Qualified
Insurer:
A
mortgage guaranty insurance company duly authorized and licensed where required
by law to transact mortgage guaranty insurance business and approved as an
insurer by Xxxxxx Mae or Xxxxxxx Mac.
Rating
Agency:
Any of
Fitch, Inc., Xxxxx’x Investors Service, Inc. or Standard & Poor’s Rating
Services, A Division of The XxXxxx-Xxxx Companies, Inc., or their respective
successors or such other rating agency as may be designated by the
Purchaser.
-11-
Recognition
Agreement:
An
agreement whereby a Cooperative and a lender with respect to a Cooperative
Loan
(i) acknowledge that such lender may make, or intends to make, such Cooperative
Loan, and (ii) make certain agreements with respect to such Cooperative
Loan.
Reconstitution:
A
Securitization Transaction, a Whole Loan Transfer or an Agency
Transfer.
Reconstitution
Agreements:
The
agreement or agreements entered into by the Purchaser, the Seller, Xxxxxx Xxx
or
Xxxxxxx Mac or certain third parties on the Reconstitution Date(s) with respect
to any or all of the Mortgage Loans serviced hereunder, in connection with
a
Securitization Transaction or an Agency Transfer as set forth in Section 8.01,
including, but not limited to, (i) a Xxxxxx Mae Mortgage Selling and Servicing
Contract, a Pool Purchase Contract, and any and all servicing agreements and
tri-party agreements reasonably required by Xxxxxx Xxx with respect to a Xxxxxx
Mae Transfer, (ii) a Purchase Contract and all purchase documents associated
therewith as set forth in the Xxxxxxx Mac Guides, and any and all servicing
agreements and tri-party agreements reasonably required by Xxxxxxx Mac with
respect to a Xxxxxxx Mac Transfer, and (iii) a Pooling and Servicing Agreement
and/or a subservicing/master servicing agreement and related custodial/trust
agreement and related documents with respect to a Securitization
Transaction.
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
an
Agency Transfer or a Securitization Transaction pursuant to Section 8.01 hereof.
On such date or dates, the Mortgage Loans transferred shall cease to be covered
by this Agreement and the Seller’s servicing responsibilities (but not its
obligations as Seller and originator hereunder) shall cease under this Agreement
with respect to the related transferred Mortgage Loans.
Regulation AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan.
7, 2005)) or by the staff of the Commission, or as may be provided by the
Commission or its staff from time to time.
REMIC:
A “real
estate mortgage investment conduit” within the meaning of Section 860D of the
Code.
REMIC
Documents:
The
document or documents creating and governing the administration of a
REMIC.
REMIC
Eligible Mortgage Loan:
A
Mortgage Loan held by a REMIC which satisfies and/or complies with all
applicable REMIC Provisions.
REMIC
Provisions:
Provisions of the federal income tax law relating to a REMIC, which appear
at
Section 860A through 86OG of Subchapter M of Chapter 1, Subtitle A of the Code,
and related provisions, and regulations, rulings or pronouncements promulgated
thereunder, as the foregoing may be in effect from time to time.
-12-
Remittance
Date:
The
18th day (or if such 18th
day is
not a Business Day, the first Business Day immediately preceding) of any
month.
REO
Disposition:
The
final sale by the Seller of any REO Property.
REO
Disposition Proceeds:
All
amounts received with respect to an REO Disposition pursuant to Section 5.17.
REO
Property:
A
Mortgaged Property acquired by the Seller on behalf of the Purchaser through
foreclosure or by deed in lieu of foreclosure, as described in Section
5.17.
Repurchase
Price:
With
respect to any Mortgage Loan, a price equal to (a) the Stated Principal Balance
of the Mortgage Loan plus (b) interest on such Stated Principal Balance at
the
Mortgage Interest Rate from the date on which interest has last been paid and
distributed to the Purchaser to the date of repurchase, less amounts received,
if any, plus amounts advanced, if any, by any servicer, in respect of such
repurchased Mortgage Loan.
SAIF:
The
Savings Association Insurance Fund, or any successor thereto.
Second
Lien Mortgage Loan:
A
Mortgage Loan secured by a second lien on the related Mortgaged
Property.
Securities
Act:
The
Securities Act of 1933, as amended.
Securitization
Transaction:
Any
transaction involving either (1) a sale or other transfer of some or all of
the
Mortgage Loans directly or indirectly to an issuing entity in connection with
an
issuance of publicly offered or privately placed, rated or unrated
mortgage-backed securities or (2) an issuance of publicly offered or privately
placed, rated or unrated securities, the payments on which are determined
primarily by reference to one or more portfolios of residential mortgage loans
consisting, in whole or in part, of some or all of the Mortgage
Loans.
Servicer:
As
defined in Section 8.01(e)(iii).
Servicing
Criteria:
The
“servicing criteria” set forth in Item 1122(d) of Regulation AB, as such may be
amended from time to time.
Seller:
GreenPoint Mortgage Funding, Inc. and its successors and assigns.
Seller
Information:
As
defined in Section 8.04(b)(i)(A).
Servicing
Advances:
All
customary, reasonable and necessary “out of pocket” costs and expenses other
than Monthly Advances (including reasonable attorneys’ fees and disbursements)
incurred in the performance by the Seller of its servicing obligations,
including, but not limited to, the cost of (a) the preservation, restoration,
protection and inspection of the Mortgaged Property, (b) any enforcement or
judicial proceedings, including foreclosures, (c) the management and liquidation
of any REO Property and (d) compliance with the obligations under Section 5.01.
5.02, 5.08, 5.11, 5.14 and 5.15.
-13-
Servicing
Fee:
With
respect to each Mortgage Loan, the amount of the annual fee the Purchaser shall
pay to the Seller, which shall, for a period of one full month, be equal to
one-twelfth of the product of (a) the Servicing Fee Rate and (b) the outstanding
principal balance of such Mortgage Loan. Such fee shall be payable monthly,
computed on the basis of the same principal amount and period respecting which
any related interest payment on a Mortgage Loan is 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 (including recoveries with respect
to
interest from Liquidation, Condemnation or Insurance Proceeds, to the extent
permitted by Section 5.05) of such Monthly Payment collected by the
Seller.
Servicing
Fee Rate:
Such
amount as set forth in the related Purchase Price and Terms
Agreement.
Servicing
File:
With
respect to each Mortgage Loan the file retained by the Seller consisting of
originals of all documents in the Mortgage File, which are not delivered to
the
Purchaser or the Purchaser’s designee, and copies of the Mortgage Loan Documents
listed on Exhibit
B
hereto.
Special
Servicer:
Such
Person designated by the Purchaser in its sole discretion to assume the
servicing of Distressed Mortgage Loans pursuant to Section 11.02.
Stated
Principal Balance:
As to
each Mortgage Loan, (a) the principal balance of the Mortgage Loan at the
related Cut-off Date after giving effect to payments of principal received
on or
before such date, minus (b) all amounts previously distributed to the Purchaser
with respect to the related Mortgage Loan representing payments or recoveries
of
principal or advances in lieu thereof.
Static
Pool Information:
Static
pool information as described in Item 1105(a)(1)-(3) and 1105(c) of Regulation
AB.
Stock
Certificate:
With
respect to a Cooperative Loan, a certificate evidencing ownership of the
Cooperative Shares issued by the Cooperative.
Stock
Power:
With
respect to a Cooperative Loan, an assignment of the Stock Certificate or an
assignment of the Cooperative Shares issued by the Cooperative.
Subcontractor:
Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of Mortgage Loans but performs one or more
discrete functions identified in Item 1122(d) of Regulation AB with respect
to
Mortgage Loans under the direction or authority of the Seller or a
Subservicer.
Subservicer:
Any
Person that services Mortgage Loans on behalf of the Seller or any Subservicer
and is responsible for the performance (whether directly or through Subservicers
or Subcontractors) of a substantial portion of the material servicing functions
required to be performed by the Seller under this Agreement or any
Reconstitution Agreement that are identified in Item 1122(d) of Regulation
AB.
-14-
Tax
Returns:
The
federal income tax return on Internal Revenue Service Form 1066, U.S. Real
Estate Mortgage Investment Conduit Income Tax Return, including Schedule Q
thereto, Quarterly Notice to Residual Interest Holders of REMIC Taxable Income
or Net Loss Allocation, or any successor forms, to be filed on behalf of any
REMIC under the REMIC Provisions, together with any and all other information,
reports or returns that may be required to be furnished to the certificate
holders under a REMIC or filed with the Internal Revenue Service or any other
governmental taxing authority under any applicable provisions of federal, state
or local tax laws.
Texas
Home Equity Loan:
An
extension of credit described in Section 50(a)(6), Article XVI of the Texas
Constitution.
Third-Party
Originator:
Each
Person, other than a Qualified Correspondent, that originated Mortgage Loans
acquired by the Seller.
Transfer
Date:
The
date that the servicing responsibilities with respect to one or more Mortgage
Loans are transferred from the Seller to the Purchaser’s designee following the
termination of this Agreement with respect to such Mortgage Loans in accordance
with the terms of this Agreement.
Underwriting
Guidelines.
The
underwriting guidelines of the Seller attached as Annex 3 to the related
Acknowledgment and Conveyance Agreement.
Whole
Loan Transfer:
The
sale or transfer of some or all of the Mortgage Loans to a third party purchaser
in a whole loan transaction pursuant to a loan purchase, warranties and
servicing agreement or a participation and servicing agreement, or similar
agreement, retaining the Seller as “servicer” thereunder.
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS; POSSESSION OF MORTGAGE FILES;
BOOKS
AND RECORDS; CUSTODIAL AGREEMENT;
DELIVERY
OF DOCUMENTS
|
Section
2.01
|
Conveyance
of Mortgage Loans; Possession of Mortgage Files; Maintenance of Servicing
Files.
|
On
each
Closing Date, the Seller, simultaneously with the execution and delivery of
the
related Acknowledgment and Conveyance Agreement, does hereby sell, transfer,
assign, set over and convey to the Purchaser, without recourse, but subject
to
the terms of this Agreement, all right, title and interest of the Seller in
and
to the Mortgage Loans included in the related Mortgage Loan Package, together
with Mortgage Files and all rights and obligations arising under the documents
contained therein for each Mortgage Loan. Pursuant to Section 2.03 hereof,
on or
prior to each Closing Date, the Seller shall deliver the Mortgage File for
each
Mortgage Loan included in the related Mortgage Loan Package to the Purchaser
or
its designee. The contents of each Servicing File not delivered to the Purchaser
are and shall be held in trust by the Seller for the benefit of Purchaser as
the
owner thereof. The Seller’s possession of any portion of the Servicing File is
at the will of the Purchaser for the sole purpose of facilitating servicing
of
the related Mortgage Loan, and such retention and possession by the Seller
shall
be in a custodial capacity only. The ownership of each Mortgage Note, Mortgage,
and the contents of the Mortgage File and Servicing File is vested in the
Purchaser and the ownership of all records and documents with respect to the
related Mortgage Loan prepared by or which come into the possession of the
Seller shall immediately vest in the Purchaser and shall be retained and
maintained, in trust, by the Seller at the will of the Purchaser in such
custodial capacity only. The Servicing File retained by the Seller shall be
segregated from the other books and records of the Seller and shall be
appropriately marked to clearly reflect the sale of the related Mortgage Loan
to
the Purchaser. The Seller shall release from its custody the contents of any
Servicing File retained by it only in accordance with the written instructions
from the Purchaser, unless such release is required as incidental to the
Seller’s servicing the Mortgage Loans pursuant hereto or is in connection with a
repurchase of any Mortgage Loan pursuant hereto.
-15-
|
Section
2.02
|
Books
and Records; Transfers of Mortgage
Loans.
|
Record
title to each Mortgage and the related Mortgage Note as of the applicable
Closing Date shall be in the name of the Purchaser or as Purchaser shall
designate. All rights arising out of the Mortgage Loans including, but not
limited to, all funds received by the Seller after the related Cut-off Date
on
or in connection with a Mortgage Loan shall be vested in the Purchaser;
provided, however, that all funds received on or in connection with a Mortgage
Loan shall be received and held by the Seller in trust for the benefit of the
Purchaser as the owner of the Mortgage Loans for the sole purpose of
facilitating the servicing and the supervision of the servicing of the Mortgage
Loans.
The
sale
of each Mortgage Loan shall be reflected on the Seller’s balance sheet and other
financial statements as a sale of assets by the Seller. The Seller shall be
responsible for maintaining, and shall maintain, a complete set of books and
records for each Mortgage Loan which shall be marked clearly to reflect the
ownership of each Mortgage Loan by the Purchaser. In particular, the Seller
shall maintain in its possession, available for inspection by the Purchaser,
or
its designee and shall deliver to the Purchaser upon demand, evidence of
compliance with all federal, state and local laws, rules and regulations, and
requirements of Xxxxxx Mae or Xxxxxxx Mac, including but not limited to
documentation as to the method used in determining the applicability of the
provisions of the Flood Disaster Protection Act of 1973, as amended, to the
Mortgaged Property, documentation evidencing insurance coverage and eligibility
of any condominium project for approval by Xxxxxx Mae. To the extent that
original documents are not required for purposes of realization of Liquidation
Proceeds, Condemnation Proceeds or Insurance Proceeds, documents maintained
by
the Seller may be in the form of microfilm or microfiche or such other reliable
means of recreating original documents, including but not limited to, optical
imagery techniques so long as the Seller complies with the requirements of
the
Xxxxxx Xxx Selling and Servicing Guide, as amended from time to
time.
The
Seller 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.
-16-
The
Seller shall keep at its servicing office books and records in which, subject
to
such reasonable regulations as it may prescribe, the Seller shall note transfers
of Mortgage Loans. No transfer of a Mortgage Loan may be made unless such
transfer is in compliance with the terms hereof. For the purposes of this
Agreement, the Seller shall be under no obligation to deal with any person
with
respect to this agreement or the Mortgage Loans unless the books and records
show such person as the owner of the Mortgage Loan. The Purchaser may, subject
to the terms of this Agreement, sell and transfer one or more of the Mortgage
Loans. The Purchaser also shall advise the Seller of the transfer. Upon receipt
of notice of the transfer, the Seller 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.
|
Section
2.03
|
Custodial
Agreement; Delivery of
Documents.
|
No
later
than the date set forth in the related Purchase Price and Terms Agreement,
the
Seller shall deliver to the Custodian those Mortgage Loan Documents as required
by this Agreement with respect to each Mortgage Loan included in the related
Mortgage Loan Package, a list of which is attached as Exhibit B hereto. On
or
prior to the related Closing Date, the Custodian shall have certified its
receipt of all such Mortgage Loan Documents required to be delivered pursuant
to
the Custodial Agreement, as evidenced by the initial certification of the
Custodian in the form annexed to the Custodial Agreement. The Purchaser shall
be
responsible for maintaining the Custodial Agreement and shall pay all fees
and
expenses of the Custodian. On the related Closing Date, the Seller shall release
any interest that it has in the Mortgage Loan Documents upon its receipt of
the
Purchase Price for the Mortgage Loans. Within thirty (30) days of receipt by
the
Seller of any notice from the Purchaser or the Custodian that any of the
Mortgage Loan Documents is missing, does not appear regular on its face (i.e.,
is mutilated, damaged, defaced, torn or otherwise physically altered) or appears
to be unrelated to the Mortgage Loans identified in the Mortgage Loan Schedule
(each, a “Material
Defect”),
the
Seller shall cure such Material Defect (and, in such event, the Seller shall
provide the Purchaser with an Officer’s Certificate confirming that such cure
has been effected). If the Seller does not so cure such Material Defect, it
shall, if such Material Defect would under Accepted Servicing Practices
reasonably be expected to result in a loss, repurchase the related Mortgage
Loan
at the Repurchase Price. A loss shall be deemed to be attributable to the
failure of the Seller to cure a Material Defect if, as determined by the
Purchaser acting in good faith, absent such Material Defect, such loss would
not
have been incurred. In addition to such repurchase obligation, the Seller shall
indemnify the Purchaser and hold it harmless against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments, and other costs and expenses resulting from any missing,
mutilated or improper Mortgage Loan Document, or any claim, demand, defense
or
assertion based on or grounded upon, or resulting therefrom, as well as for
any
expenses reasonably incurred by the Purchaser in enforcing its remedies
hereunder in connection with any missing, mutilated or improper Mortgage Loan
Document.
The
Seller shall forward to the Custodian original documents evidencing an
assumption, modification, consolidation or extension of any Mortgage Loan
entered into in accordance with Section 5.01 or 7.01 within one week of their
execution, provided, however, that the Seller shall provide the Custodian and
the Purchaser or its designee with a certified true copy of any such document
submitted for recordation within one week of its execution, and shall provide
the original of any document submitted for recordation or a copy of such
document certified by the appropriate public recording office to be a true
and
complete copy of the original within sixty days of its submission for
recordation.
-17-
The
Seller shall deliver a final Mortgage Loan Schedule for the Mortgage Loans
included in any Mortgage Loan Package to be purchased on any Closing Date to
the
Purchaser no later than the date set forth in the related Purchase Price and
Terms Agreement.
In
the
event that new, replacement, substitute or additional Stock Certificates are
issued with respect to existing Cooperative Shares, the Seller immediately
shall
deliver to the Custodian the new Stock Certificates, together with the related
Stock Powers in blank. Such new Stock Certificates shall be subject to the
related Pledge Instruments and shall be subject to all of the terms, covenants
and conditions of this Agreement.
|
Section
2.04
|
MERS
Designated Mortgage Loans.
|
With
respect to each MERS Designated Mortgage Loan, the Seller shall, on or prior
to
the related Closing Date, designate the Purchaser as the Investor and the
Custodian as custodian, and no Person shall be listed as Interim Funder on
the
MERS System. In addition, on or prior to the related Closing Date, the Seller
shall provide the Custodian and the Purchaser with a MERS Report listing the
Purchaser as the Investor, the Custodian as custodian and no Person as Interim
Funder with respect to each MERS Designated Mortgage Loan.
ARTICLE
III
PURCHASE
PRICE
The
Purchase Price shall be the percentage of par as stated in the related Purchase
Price and Terms Agreement (subject to the adjustments as provided therein),
multiplied by the aggregate principal balance, as of the related Cut-off Date,
of the Mortgage Loans listed on the related Mortgage Loan Schedule, after
application of payments of principal received on or before the related Cut-off
Date. Notwithstanding the foregoing, if a Mortgage Loan prepays in full between
the related Cut-off Date and the related Closing Date, inclusive, the Seller
shall either remove such Mortgage Loan from the Mortgage Loan Schedule or
reimburse the Purchaser for the premium over par which the Purchaser paid within
five (5) days of the related Closing Date. In addition, Purchaser will not
purchase any Mortgage Loan that has not made a payment as of the date set forth
in the related Purchase Price and Terms Agreement. The initial principal amount
of the Mortgage Loans shall be the aggregate principal balance of such Mortgage
Loans, so computed as of the related Cut-off Date.
On each
Closing Date, the Purchaser shall deduct from the Purchase Price proceeds
certain costs and expenses set forth in Article XIII or in the related Purchase
Price and Terms Agreement.
In
addition to the Purchase Price as described above, the Purchaser shall pay
to
the Seller, on the related Closing Date, accrued interest on the initial
principal amount of the Mortgage Loans at the weighted average Mortgage Interest
Rate from the date interest was last received on the related Mortgage Loan
through the day prior to the related
Closing Date, inclusive.
-00-
Xxx
Xxxxxxxx Price shall be paid on the related Closing Date by wire transfer of
immediately available federal funds.
The
Purchaser shall be entitled to (i) all principal received after the related
Cut-off Date, (ii) all other recoveries of late charges, assumption fees or
other charges collected after the related Cut-off Date, and (iii) all payments
of interest on the Mortgage Loans at the Mortgage Interest Rate. The principal
balance of each Mortgage Loan as of the related Cut-off Date is determined
after
application of payments of principal received on or before the related Cut-off
Date. All payments of principal and interest (minus interest at the Servicing
Fee Rate) due on the first day of the month after the related Cut-off Date
shall
belong to the Purchaser.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES;
REMEDIES
AND BREACH
|
Section
4.01
|
Seller
Representations and Warranties.
|
(A) The
Seller represents and warrants to the Purchaser that as of each Closing
Date:
(a) Due
Organization and Authority.
The
Seller is a New York corporation duly organized, validly existing and in good
standing under the laws of the State of New York and has all licenses necessary
to carry on its business as now being conducted and is licensed, qualified
and
in good standing in each state where a Mortgaged Property is located if the
laws
of such state require licensing or qualification in order to conduct business
of
the type conducted by the Seller, and in any event the Seller is in compliance
with the laws of any such state to the extent necessary to ensure the
enforceability of the related Mortgage Loan and the servicing of such Mortgage
Loan in accordance with the terms of this Agreement; the Seller has the full
corporate power and authority to execute and deliver this Agreement and to
perform in accordance herewith; the execution, delivery and performance of
this
Agreement (including all instruments of transfer to be delivered pursuant to
this Agreement) by the Seller and the consummation of the transactions
contemplated hereby have been duly and validly authorized; this Agreement
evidences the valid, binding and enforceable obligation of the Seller; and
all
requisite corporate action has been taken by the Seller to make this Agreement
valid and binding upon the Seller in accordance with its terms;
(b) Ordinary
Course of Business.
The
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the 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;
(c) No
Conflicts.
Neither
the execution and delivery of this Agreement, the acquisition of the Mortgage
Loans by the Seller, the sale of the Mortgage Loans to the Purchaser or the
transactions contemplated hereby, nor the fulfillment of or compliance with
the
terms and conditions of this Agreement, will conflict with or result in a breach
of any of the terms, conditions or provisions of the Seller’s charter or by-laws
or 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 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;
-19-
(d) Ability
to Perform.
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. The
Seller is solvent and the sale of the Mortgage Loans will not cause the Seller
to become insolvent. The sale of the Mortgage Loans is not undertaken with
the
intent to hinder, delay or defraud any of the Seller’s creditors.;
(e) No
Litigation Pending.
There
is no action, suit, proceeding or investigation pending or threatened against
the Seller which, either in any one instance or in the aggregate, may result
in
any material adverse change in the business, operations, financial condition,
properties or assets of the Seller, or in any material impairment of the right
or ability of the Seller to carry on its business substantially as now
conducted, or in any material liability on the part of the Seller, or which
would draw into question the validity of this Agreement or the Mortgage Loans
or
of any action taken or to be taken in connection with the obligations of the
Seller contemplated herein, or which would be likely to impair materially the
ability of the Seller to perform under the terms of this Agreement;
(f) No
Consent Required.
No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Seller
of or
compliance by the Seller with this Agreement or the Mortgage Loans, the delivery
of a portion of the Mortgage Files to the Custodian or the sale of the Mortgage
Loans to the Purchaser or the consummation of the transactions contemplated
by
this Agreement, or if required, such approval has been obtained prior to the
related Closing Date;
(g) Selection
Process.
The
Mortgage Loans were not intentionally selected in a manner so as to affect
adversely the interests of the Purchaser;
(h) No
Untrue Information.
Neither
this Agreement nor any statement, report or other document furnished or to
be
furnished pursuant to this Agreement or in connection with the transactions
contemplated hereby contains any untrue statement of fact or omits to state
a
fact necessary to make the statements contained therein not
misleading;
(i) Sale
Treatment.
The
Seller has determined that the disposition of the Mortgage Loans pursuant to
this Agreement will be afforded sale treatment for accounting and tax purposes;
(j) No
Commissions to Third Parties.
The
Seller has not dealt with any broker or agent or anyone else who might be
entitled to a fee or commission in connection with this transaction other than
the Purchaser;
(k) Financial
Statements.
The
Seller has delivered to the Purchaser financial statements as to its last three
complete fiscal years and any later quarter ended more than sixty (60) days
prior to the execution of this Agreement. All such financial statements fairly
present the pertinent results of operations and changes in financial position
at
the end of each such period of the Seller and its subsidiaries and have been
prepared in accordance with generally accepted accounting principles
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. The Seller has completed any
forms
requested by the Purchaser in a timely manner and in accordance with the
provided instructions;
-20-
(l) Fair
Consideration.
The
consideration received by the Seller upon the sale of the Mortgage Loans under
this Agreement constitutes fair consideration and reasonably equivalent value
for the Mortgage Loans;
(m) MERS.
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; and
(n) Ability
to Service.
The
Seller is an approved servicer of conventional residential mortgage loans for
Xxxxxx Xxx and Xxxxxxx Mac, with the facilities, procedures, and experienced
personnel necessary for the sound servicing of mortgage loans of the same type
as the Mortgage Loans. The Seller is in good standing to service mortgage loans
for Xxxxxx Mae and Xxxxxxx Mac, and no event has occurred, including but not
limited to a change in insurance coverage, which would make the Seller unable
to
comply with Xxxxxx Mae and Xxxxxxx Mac eligibility requirements or which would
require notification to Xxxxxx Mae or Xxxxxxx Mac, as applicable;
(o) Reasonable
Servicing Fee.
The
Seller acknowledges and agrees that the Servicing Fee, as calculated at the
Servicing Fee Rate, 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;
(p) Pool
Characteristics.
With
respect to each Mortgage Loan Package, the Mortgage Loan characteristics set
forth in the related Acknowledgment and Conveyance are true and
complete;
(q) Origination.
The
Seller’s decision to originate any mortgage loan or to deny any mortgage loan
application is an independent decision based upon Seller’s Underwriting
Guidelines, and is in no way made as a result of Purchaser’s decision to
purchase, or not to purchase, or the price Purchaser may offer to pay for,
any
such mortgage loan, if originated; and
(r) Compliance
with Anti-Money Laundering Laws.
The
Seller has complied with all applicable anti-money laundering laws and
regulations, including without limitation the USA Patriot Act of 2003, and
the
laws and regulations administered by the U.S. Department of Treasury’s Office of
Foreign Assets Control (“OFAC”),
which
prohibit dealings with certain countries, territories, entities and individuals
named in OFAC’s Sanction Programs and on the Specially Designated Nationals and
Blocked Persons List (collectively, the “Anti-Money
Laundering Laws”).
The
Seller has established an anti-money laundering compliance program to the extent
required by the Anti-Money Laundering Laws, has conducted the requisite due
diligence in connection with the origination of each Mortgage Loan for purposes
of the Anti-Money Laundering Laws, including with respect to the legitimacy
of
the applicable Mortgagor and the origin of the assets used by the said Mortgagor
to purchase the property in question, and maintains, and will maintain,
sufficient information to identify the applicable Mortgagor for purposes of
the
Anti-Money Laundering Laws.
-21-
(B) (i) The
Seller 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 Section 8.01(e) that, except as disclosed in writing to the
Purchaser or such Depositor prior to such date: (i)
the
Seller is not aware and has not received notice that any default, early
amortization or other performance triggering event has occurred as to any other
securitization due to any act or failure to act of the Seller; (ii) the
Seller
has not
been terminated as servicer in a residential mortgage loan securitization,
either due to a servicing default or to application of a servicing performance
test or trigger; (iii) no
material noncompliance
with the applicable servicing criteria with respect to other securitizations
of
residential mortgage loans involving the Seller
as
servicer
has been
disclosed or reported by the Seller; (iv) no material
changes to the Seller’s
policies or procedures with respect to the servicing function it will perform
under this Agreement and any Reconstitution Agreement for mortgage loans of
a
type similar to the Mortgage Loans
have
occurred during the three-year period immediately preceding the related
Securitization Transaction; (v) there are no aspects of the Seller’s financial
condition that could have a material adverse effect on the performance by
the
Seller
of its
servicing obligations under this Agreement or any Reconstitution
Agreement;
(vi)
there are no material
legal or governmental proceedings pending (or known to be contemplated) against
the Seller,
any
Subservicer or any Third-Party Originator;
and
(vii) there are no affiliations, relationships or transactions relating to
the
Seller, any Subservicer or any Third-Party Originator with respect to any
Securitization Transaction and any party thereto identified by the related
Depositor of a type described in Item 1119 of Regulation AB.
(ii) If
so
requested by the Purchaser or any Depositor on any date following the
date
on which information is first provided to the Purchaser or any Depositor under
Section 8.01(e),
the
Seller shall, within five Business Days following such request, confirm in
writing the accuracy of the representations and warranties set forth in
paragraph (i) of this Section 4.01(B) 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.
|
Section
4.02
|
Representations
and Warranties Regarding Individual Mortgage
Loans.
|
As
to
each Mortgage Loan, the Seller hereby represents and warrants to the Purchaser
that as of the related Closing Date:
(a) Mortgage
Loans as Described.
The
information set forth in the related Mortgage Loan Schedule is complete, true
and correct;
-22-
(b) Payments
Current.
All
payments required to be made up to the related Closing Date on the Mortgage
Loan
under the terms of the Mortgage Note have been made and credited. No payment
required under the Mortgage Loan is delinquent nor has any payment under the
Mortgage Loan been delinquent for 30 days or more at any time for the twelve
months preceding the Closing Date. The first and second Monthly Payments have
been made with respect to the Mortgage Loan on its Due Date or within the grace
period, all in accordance with the terms of the related Mortgage
Note;
(c) No
Outstanding Charges.
There
are no defaults in complying with the terms of the Mortgage, and all taxes,
governmental assessments, insurance premiums, water, sewer and municipal
charges, leasehold payments or ground rents which previously became due and
owing have been paid, or an escrow of funds has been established in an amount
sufficient to pay for every such item which remains unpaid and which has been
assessed but is not yet due and payable. With the exception of Buydown Mortgage
Loans, the Seller has not advanced funds, or induced, solicited or knowingly
received any advance of funds by a party other than the Mortgagor, directly
or
indirectly, for the payment of any amount required under the Mortgage Loan,
except for interest accruing from the date of the Mortgage Note or date of
disbursement of the Mortgage Loan proceeds, whichever is earlier, to the day
which precedes by one month the Due Date of the first installment of principal
and interest;
(d) Original
Terms Unmodified.
The
terms of the Mortgage Note and Mortgage have not been impaired, waived, altered
or modified in any respect, except by a written instrument which has been
recorded, if necessary to protect the interests of the Purchaser and which
has
been delivered to the Purchaser or its designee. The substance of any such
waiver, alteration or modification has been approved by the issuer of any
related PMI Policy and the title insurer, to the extent required by the policy,
and its terms are reflected on the related Mortgage Loan Schedule. No Mortgagor
has been released, in whole or in part, except in connection with an assumption
agreement approved by the issuer of any related PMI Policy and the title
insurer, to the extent required by the policy, and which assumption agreement
is
part of the Mortgage Loan File delivered to the Purchaser or its designee and
the terms of which are reflected in the related Mortgage Loan
Schedule;
(e) No
Defenses.
The
Mortgage Loan is not subject to any right of rescission, set-off, counterclaim
or defense, including without limitation the defense of usury, nor will the
operation of any of the terms of the Mortgage Note or the Mortgage, or the
exercise of any right thereunder, render either the Mortgage Note or the
Mortgage unenforceable, in whole or in part, or subject to any right of
rescission, set-off, counterclaim or defense, including without limitation
the
defense of usury, and no such right of rescission, set-off, counterclaim or
defense has been asserted with respect thereto, and no Mortgagor was a debtor
in
any state or federal bankruptcy or insolvency proceeding within the 24 months
preceding the origination of the Mortgage Loan;
(f) Hazard
Insurance.
Pursuant to the terms of the Mortgage, all buildings or other improvements
upon
the Mortgaged Property are insured by a generally acceptable 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 Xxxxxx Xxx and Xxxxxxx
Mac.
If upon origination of the Mortgage Loan, the Mortgaged Property was in an
area
identified in the Federal Register by the Federal Emergency Management Agency
as
having special flood hazards a life-of-loan flood insurance policy meeting
the
requirements of the current guidelines of the Federal Flood Insurance
Administration is in effect which policy conforms to the requirements of Xxxxxx
Mae and Xxxxxxx Mac. Such flood insurance shall be with an Approved Flood Policy
Insurer. All individual insurance policies contain a standard mortgagee clause
naming the Seller and its successors and assigns as mortgagee, and all premiums
thereon have been paid. The Mortgage obligates the Mortgagor thereunder to
maintain the hazard insurance policy at the Mortgagor’s cost and expense, and on
the Mortgagor’s failure to do so, authorizes the holder of the Mortgage to
obtain and maintain such insurance at such Mortgagor’s cost and expense, and to
seek reimbursement therefor from the Mortgagor. Where required by state law
or
regulation, the Mortgagor has been given an opportunity to choose the carrier
of
the required hazard insurance, provided the policy is not a “master” or
“blanket” hazard insurance policy covering the common facilities of a planned
unit development. The hazard insurance policy is the valid and binding
obligation of the insurer, is in full force and effect, and will be in full
force and effect and inure to the benefit of the Purchaser upon the consummation
of the transactions contemplated by this Agreement. The Seller has not engaged
in, and has no knowledge of the Mortgagor’s or any subservicer’s having engaged
in, any act or omission which would impair the coverage of any such policy,
the
benefits of the endorsement provided for herein, or the validity and binding
effect of either, including, without limitation, no unlawful fee, commission,
kickback or other unlawful compensation or value of any kind has been or will
be
received, retained or realized by any attorney, firm or other person or entity,
and no such unlawful items have been received, retained or realized by the
Seller;
-23-
(g) Compliance
with Applicable Laws.
Any and
all requirements of any federal, state or local law including, without
limitation, usury, truth-in-lending, real estate settlement procedures, consumer
credit protection, equal credit opportunity or disclosure laws applicable to
the
Mortgage Loan have been complied with, and the Seller shall maintain in its
possession, available for the Purchaser’s inspection, and shall deliver to the
Purchaser on the related Closing Date, evidence of compliance with all such
requirements;
(h) No
Satisfaction of Mortgage.
The
Mortgage has not been satisfied, canceled, subordinated or rescinded, in whole
or in part, and the Mortgaged Property has not been released from the lien
of
the Mortgage, in whole or in part, nor has any instrument been executed that
would effect any such release, cancellation, subordination or rescission. The
Seller has not waived the performance by the Mortgagor of any action, if the
Mortgagor’s failure to perform such action would cause the Mortgage Loan to be
in default, nor has the Seller waived any default resulting from any action
or
inaction by the Mortgagor;
(i) Location
and Type of Mortgaged Property.
The
Mortgaged Property is a fee simple property located in the state identified
in
the related Mortgage Loan Schedule and consists of a single parcel of real
property with a detached single family residence erected thereon, a two- to
four-family dwelling, an individual condominium unit in a low-rise condominium
project, an individual unit in a planned unit development or a manufactured
dwelling permanently affixed to the ground, provided, however, that any
condominium unit or planned unit development shall conform with the applicable
Underwriting Guidelines regarding such dwellings and that no residence or
dwelling is a mobile home. No portion of the Mortgaged Property is used for
commercial purposes;
-24-
(j) Valid
First or Second Lien.
With
respect to any First Lien Mortgage Loan, the related Mortgage is a valid,
subsisting, enforceable and perfected first lien on the Mortgaged Property
and,
with respect to any Second Lien Mortgage Loan, the related Mortgage is a valid,
subsisting, enforceable and perfected Second Lien on the Mortgaged Property,
including all buildings on the Mortgaged Property and all installations and
mechanical, electrical, plumbing, heating and air conditioning systems located
in or annexed to such buildings, and all additions, alterations and replacements
made at any time with respect to the foregoing. Such lien is free and clear
of
all adverse claims, liens and encumbrances having priority over the First Lien
or second lien, as applicable, of the Mortgage subject only to:
(i) with
respect to any Second Lien Mortgage Loan, the related First Lien,
(ii) the
lien
of current real property taxes and assessments not yet due and payable,
(iii) covenants,
conditions and restrictions, rights of way, easements and other matters of
the
public record as of the date of recording acceptable to mortgage lending
institutions generally and specifically referred to in the lender’s title
insurance policy delivered to the originator of the Mortgage Loan and (A)
referred to or to otherwise considered in the appraisal made for the originator
of the Mortgage Loan or (B) which do not adversely affect the appraised value
of
the Mortgaged Property set forth in such appraisal; and
(iv) other
matters to which like properties are commonly subject which do not materially
interfere with the benefits of the security intended to be provided by the
Mortgage or the use, enjoyment, value or marketability of the related Mortgaged
Property.
Any
security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates a valid,
subsisting and enforceable (A) first lien and first priority security interest
with
respect to each First Lien Mortgage Loan, or (B) second lien and second priority
security interest with respect to each Second Lien Mortgage Loan, in either
case, on
the
property described therein and the Seller has full right to sell and assign
the
same to the Purchaser. The Mortgaged Property was not, as of the date of
origination of the Mortgage Loan, subject to a mortgage, deed of trust, deed
to
secure debt or other security instrument creating a lien subordinate to the
lien
of the Mortgage. With respect to each Cooperative Loan, each Pledge Agreement
creates a valid, enforceable and subsisting first security interest in the
Cooperative Shares and Proprietary Lease, subject only to (i) the lien of the
related Cooperative for unpaid assessments representing the Mortgagor’s pro rata
share of the Cooperative’s payments for its blanket mortgage, current and future
real property taxes, insurance premiums, maintenance fees and other assessments
to which like collateral is commonly subject and (ii) other matters to which
like collateral is commonly subject which do not materially interfere with
the
benefits of the security intended to be provided by the Pledge Agreement;
provided, however, that the appurtenant Proprietary Lease may be subordinated
or
otherwise subject to the lien of any mortgage on the Project;
(k) Reserved.
(l) Validity
of Mortgage Documents.
The
Mortgage Note and the Mortgage are genuine, and each is the legal, valid and
binding obligation of the maker thereof enforceable in accordance with its
terms. All parties to the Mortgage Note and the Mortgage and any other related
agreement had legal capacity to enter into the Mortgage Loan and to execute
and
deliver the Mortgage Note and the Mortgage and any other related agreement,
and
the Mortgage Note and the Mortgage and any other related agreement have been
duly and properly executed by such parties. The documents, instruments and
agreements submitted for loan underwriting were not falsified and contain no
untrue statement of material fact or omit to state a material fact required
to
be stated therein or necessary to make the information and statements therein
not misleading. No fraud was committed in connection with the origination of
the
Mortgage Loan. The Seller has reviewed all of the documents constituting the
Servicing File and has made such inquiries as it deems necessary to make and
confirm the accuracy of the representations set forth herein;
-25-
(m) LTV,
PMI Policy.
No
Mortgage Loan has a LTV equal to or greater than as is set forth in the related
Purchase Price and Terms Agreement. The original LTV of the Mortgage Loan either
was not more than 80% or the excess over 75% is and will be insured as to
payment defaults by a PMI Policy until the LTV of such Mortgage Loan is reduced
to 80%. All provisions of such PMI Policy have been and are being complied
with,
such policy is in full force and effect, and all premiums due thereunder have
been paid. No action, inaction, or event has occurred and no state of facts
exists that has, or will result in the exclusion from, denial of, or defense
to
coverage. Any Mortgage Loan subject to a PMI Policy obligates the Mortgagor
thereunder to maintain the PMI Policy and to pay all premiums and charges in
connection therewith. The Mortgage Interest Rate for the Mortgage Loan as set
forth on the related Mortgage Loan Schedule is net of any such insurance
premium;
(n) Full
Disbursement of Proceeds.
The
Mortgage Loan has been closed and 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;
(o) Ownership.
The
Seller is the sole owner of record 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 therein
to
the Purchaser free and clear of any encumbrance, equity, participation interest,
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;
(p) Doing
Business.
All
parties which have had any interest in the Mortgage Loan, whether as mortgagee,
assignee, pledgee or otherwise, are (or, during the period in which they held
and disposed of such interest, were) (1) in compliance with any and all
applicable licensing requirements of the laws of the state wherein the Mortgaged
Property is located, and (2) organized under the laws of such state, or (3)
qualified to do business in such state, or (4) federal savings and loan
associations or national banks having principal offices in such state, or (5)
not doing business in such state;
-26-
(q) Loan-to-Value
Ratio.
No
Mortgage Loan has an LTV of greater than as set forth in the related Purchase
Price and Terms Agreement. No Second Lien Mortgage Loan has a CLTV of greater
than 100%;
(r) Title
Insurance.
The
Mortgage Loan is covered by an ALTA lender’s title insurance policy or other
generally acceptable form of policy of insurance acceptable to Xxxxxx Xxx or
Xxxxxxx Mac, issued by a title insurer acceptable to Xxxxxx Mae or Xxxxxxx
Mac
and qualified to do business in the jurisdiction where the Mortgaged Property
is
located, insuring the Seller, its successors and assigns, as to the first
priority lien of the Mortgage with respect to First Lien Mortgage Loans and
second priority lien of the Mortgage with respect to Second Lien Mortgage Loans
in the original principal amount of the Mortgage Loan (or
with
respect to Negative Amortization Mortgage Loans, the maximum amount of negative
amortization in accordance with the Mortgage) and
against any loss by reason of the invalidity or unenforceability of the lien
resulting from the provisions of the Mortgage providing for adjustment in the
Mortgage Interest Rate and Monthly Payment, subject only to the exceptions
contained in clauses (i), (ii), (iii) and (iv) of paragraph (j) of this Section
4.02. Where required by state law or regulation, the Mortgagor has been given
the opportunity to choose the carrier of the required mortgage title insurance.
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 force and effect upon the consummation of the transactions
contemplated by this Agreement. No claims have been made under such lender’s
title insurance policy, and no prior holder of the Mortgage, including the
Seller, has done, by act or omission, anything which would impair the coverage
of such lender’s title insurance policy including without limitation, no
unlawful fee, commission, kickback or other unlawful compensation or value
of
any kind has been or will be received, retained or realized by any attorney,
firm or other person or entity, and no such unlawful items have been received,
retained or realized by the Seller;
(s) No
Defaults.
There
is no default, breach, violation or event of acceleration existing under the
Mortgage or the Mortgage Note or related documents and no event which, with
the
passage of time or with notice and the expiration of any applicable grace or
cure period, would constitute a default, breach, violation or event of
acceleration, and neither the Seller nor any of its predecessors have waived
any
default, breach, violation or event of acceleration. With respect to each Second
Lien Mortgage Loan, (i) the First Lien is in full force and effect, (ii) there
is no default, breach, violation or event of acceleration existing under such
prior mortgage or the related mortgage note, (iii) no event which, with the
passage of time or with notice and the expiration of any grace or cure period,
would constitute a default, breach, violation or event of acceleration
thereunder, and either (A) the prior mortgage contains a provision which allows
or (B) applicable law requires, the mortgagee under the Second Lien Mortgage
Loan to receive notice of, and affords such mortgagee an opportunity to cure
any
default by payment in full or otherwise under the prior mortgage;
-27-
(t) No
Mechanics’ Liens.
There
are no mechanics’ or similar liens or claims which have been filed for work,
labor or material (and no rights are outstanding that under the law could give
rise to such liens) affecting the related Mortgaged Property which are or may
be
liens prior to, or equal or coordinate with, the lien of the related
Mortgage;
(u) Location
of Improvements; No Encroachments.
All
improvements which were considered in determining the Appraised Value of the
Mortgaged Property lay wholly within the boundaries and building restriction
lines of the Mortgaged Property, no improvements on adjoining properties to
which value was assigned encroach upon the Mortgaged Property; further, the
value of the Mortgaged Property is not diminished by any improvements on
adjoining properties which encroach the Mortgaged Property. No improvement
located on or being part of the Mortgaged Property (upon which value was given
in determining the Appraised Value) is in violation of any applicable zoning
law
or regulation; provided, that in no event shall a legal nonconforming use of
the
Mortgaged Property be considered a violation of any such zoning law or
regulation.
(v) Origination;
Payment Terms.
Principal payments on the Mortgage Loan commenced no more than sixty (60) days
after the funds were disbursed in connection with the Mortgage Loan. At the
time
the Mortgage Loan was originated, the originator was a mortgagee approved by
the
Secretary of Housing and Urban Development pursuant to Sections 203 and 211
of
the National Housing Act or a savings and loan association, a savings bank,
a
commercial bank or similar banking institution which is supervised and examined
by a Federal or State authority. The Mortgage Interest Rate is (i) with respect
to fixed rate Mortgage Loans, the fixed interest rate set forth in the Mortgage
Note and (ii) with respect to ARM Mortgage Loans, adjusted on each Interest
Rate
Adjustment Date pursuant to the Mortgage Loan Documents and rounded up or down
to the nearest 0.125% and subject to the Mortgage Interest Rate Cap, the
Periodic Rate Cap and the Lifetime Rate Cap. Except with respect to any balloon
Mortgage Loan, “interest only” Mortgage Loan or Negative Amortization Mortgage
Loan, each as indicated on the related Mortgage Loan Schedule, the Mortgage
Note
is payable in equal monthly installments of principal and interest, with
interest calculated and payable in arrears, sufficient to amortize the Mortgage
Loan fully by the stated maturity date, over an original term of not more than
forty years from commencement of amortization. The Mortgage Interest Rate,
as
well as the Lifetime Rate Cap, the Periodic Rate Cap and the Mortgage Interest
Rate Cap, are as set forth on the Mortgage Loan Schedule. No ARM Mortgage Loan
contains terms whereby the Mortgagor is permitted to convert the Mortgage Loan
to a fixed rate Mortgage Loan. All of the ARM Mortgage Loans contain an interest
rate provision that requires a lookback as set forth in the Underwriting
Guidelines. With respect to each Mortgage Loan Package, the Mortgage Loan
Schedule does not contain more than one Mortgage Loan with the same
Mortgagor;
(w) Customary
Provisions.
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, (i) in the case of a Mortgage designated as a deed of trust, by
trustee’s sale, and (ii) otherwise by judicial or nonjudicial foreclosure. Upon
default by an Mortgagor on a Mortgage Loan and foreclosure on, or trustee’s sale
of, the Mortgaged Property pursuant to the proper procedures, the holder of
the
Mortgage Loan will be able to deliver good and merchantable title to the
Mortgaged Property. There is no homestead or other exemption available to the
Mortgagor which would interfere with the right to sell the Mortgaged Property
at
a trustee’s sale or the right to foreclose the Mortgage subject to applicable
federal and state laws and judicial precedent with respect to bankruptcy and
right of redemption;
-28-
(x) Conformance
with Underwriting Guidelines.
The
Mortgage Loan was underwritten in accordance with the Underwriting Guidelines
in
effect at the time the Mortgage Loan was originated. The Mortgage Note and
Mortgage are on forms acceptable to participants in the secondary mortgage
market for similar types of Mortgage Loans. The methodology used in underwriting
the extension of credit for each Mortgage Loan employs objective mathematical
principles which relate the Mortgagor’s income, assets and liabilities to the
proposed payment and such underwriting methodology does not rely on the extent
of the Mortgagor’s equity in the collateral as the principal determining factor
in approving such credit extension. Such underwriting methodology confirmed
that
at the time of origination (application/approval) the Mortgagor had a reasonable
ability to make timely payments on the Mortgage Loan;
(y) Occupancy
of the Mortgaged Property.
As of
the related Closing Date the Mortgaged Property will be lawfully occupied under
applicable law. All inspections, licenses and certificates required to be made
or issued with respect to all occupied portions of the Mortgaged Property and
with respect to the use and occupancy of the same, including, but not limited
to, certificates of occupancy and fire underwriting certificates, have been
made
or obtained from the appropriate authorities;
(z) No
Additional Collateral.
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 the “Valid First or Second
Lien” representation above.
(aa) Deeds
of Trust.
In the
event the Mortgage constitutes a deed of trust, a trustee, authorized and 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 Purchaser to the trustee under the deed of trust,
except in connection with a trustee’s sale after default by the
Mortgagor.
(bb) Acceptable
Investment.
The
Seller has no knowledge of any circumstances or conditions with respect to
the
Mortgage, the Mortgaged Property, the Mortgagor or the Mortgagor’s credit
standing that can reasonably be expected to cause private institutional
investors to regard the Mortgage Loan as an unacceptable investment, cause
the
Mortgage Loan to become delinquent, or adversely affect the value or
marketability of the Mortgage Loan;
(cc) Delivery
of Mortgage Documents.
The
Mortgage Note, the Mortgage, the Assignment of Mortgage and any other documents
required to be delivered by the Seller under this Agreement have been delivered
to the Purchaser or its designee. The Seller is in possession of a complete,
true and accurate Mortgage File in compliance with Exhibit
B
hereto,
except for such documents the originals of which have been delivered to the
Purchaser or its designee;
(dd) Condominiums/Planned
Unit Developments/Manufactured Dwellings.
If the
Mortgaged Property is a condominium unit or a planned unit development (other
than a de minimus planned unit development) such condominium or planned unit
development project meets the related Underwriting Guidelines. With respect
to
each Mortgage Loan secured by a manufactured home: (i) the manufactured home
is
permanently affixed to a foundation which is suitable for the soil conditions
of
the site; (ii) all foundations, both perimeter and interior, have footings
that
are located below the frost line; (iii) any wheels, axles and trailer hitches
are removed from the manufactured home; (iv) the Mortgage Loan is covered under
a standard real estate title insurance policy or attorney’s title opinion or
certificate that identified the manufactured home as part of the real property
and insures or indemnifies against any loss if the manufactured home is
determined not to be part of the real property. In no event shall any Mortgage
Loan be secured by a mobile home;
-29-
(ee) Due
on
Sale.
Each
Mortgage, together with any such documents as may be required under applicable
law, 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, at the option of the mortgagee;
(ff) Transfer
of Mortgage Loans.
If the
Mortgage Loan is not a MERS Designated Mortgage Loan, each of the Mortgage
and
the Assignment of Mortgage (upon the insertion of the assignee’s name) is in
recordable form and is acceptable for recording under the laws of the
jurisdiction in which the Mortgaged Property is located, and each Mortgage
has
been delivered to the appropriate recorder’s office for recording;
(gg) No
Buydown Provisions; No Graduated Payments or Contingent
Interests.
With
respect to each Buydown Mortgage Loan, the related Mortgage Loan Schedule sets
forth the amount of Buydown Funds being held in a separate escrow account,
such
amount being sufficient, when added to the principal and interest payments
to be
remitted by the mortgagor, to pay all principal and interest payments that
will
become due under the Mortgage Loan. With the exception of the Buydown Mortgage
Loans, the Mortgage Loan does not contain provisions pursuant to which Monthly
Payments are paid or partially paid with funds deposited in any separate account
established by the Seller, the Mortgagor or anyone on behalf of the Mortgagor,
or paid by any source other than the Mortgagor, nor does it contain any other
similar provisions currently in effect which may constitute a “buydown”
provision. The Mortgage Loan is not a graduated payment mortgage loan and the
Mortgage Loan does not have a shared appreciation or other contingent interest
feature;
(hh) Consolidation
of Future Advances.
Any
future advances made to the Mortgagor prior to the related 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
readjustment feature or rate and single repayment term. The lien of the Mortgage
securing the consolidated principal amount is expressly insured as having the
lien priority as indicated on the Mortgage Loan Schedule by a title insurance
policy, an endorsement to the policy insuring the mortgagee’s consolidated
interest or by other title evidence acceptable to Purchaser, Xxxxxx Xxx or
Xxxxxxx Mac. The consolidated principal amount does not exceed the original
principal amount of the Mortgage Loan;
-30-
(ii) Mortgaged
Property Undamaged; No Condemnation Proceedings.
There
is no proceeding pending or threatened for the total or partial condemnation
of
the Mortgaged Property. The Mortgaged Property is undamaged by waste, fire,
earthquake or earth movement, windstorm, flood, tornado or other casualty so
as
to affect adversely the value of the Mortgaged Property as security for the
Mortgage Loan or the use for which the premises were intended;
(jj) Collection
Practices; Escrow Payments.
The
origination and collection practices used with respect to the Mortgage Loan
have
been in accordance with Accepted Servicing Practices, in all respects in
compliance with all applicable laws and regulations and in all material respects
proper and prudent in the mortgage origination and servicing business. With
respect to escrow deposits and Escrow Payments, all such payments are in the
possession of the Seller and there exist no deficiencies in connection therewith
for which customary arrangements for repayment thereof have not been made.
All
Escrow Payments have been collected in full compliance with state and federal
law. An escrow of funds is not prohibited by applicable law and has been
established in an amount sufficient to pay for every item which remains unpaid
and which has been assessed but is not yet due and payable. No escrow deposits
or Escrow Payments or other charges or payments due the Seller have been
capitalized under the Mortgage or the Mortgage Note. With respect to each ARM
Mortgage Loan, all Mortgage Interest Rate adjustments have been made in strict
compliance with federal law and the terms of the Mortgage Note. The index used
for the adjustment of the Mortgage Interest Rate on each ARM Mortgage Loan
is
the Index;
(kk) Insurance.
The
Seller has caused or will cause to be performed any and all acts required to
preserve the rights and remedies of the Purchaser in any insurance policies
applicable to the Mortgage Loans including, without limitation, any necessary
notifications of insurers, assignments of policies or interests therein, and
establishments of coinsured, joint loss payee and mortgagee rights in favor
of
the Purchaser; No action, inaction, or event has occurred and no state of fact
exists or has existed that has resulted or will result in the exclusion from,
denial of, or defense to coverage under any applicable pool insurance policy,
special hazard insurance policy, PMI Policy or bankruptcy bond, irrespective
of
the cause of such failure of coverage. In connection with the placement of
any
such insurance, no commission, fee, or other compensation has been or will
be
received by the Seller or any designee of the Seller or any corporation in
which
the Seller or any officer, director, or employee had a financial interest at
the
time of placement of such insurance;
(ll) Appraisal.
The
Mortgage File contains an appraisal of the related Mortgage Property signed
prior to the approval of the Mortgage Loan application by a Qualified
Appraiser;
(mm) Soldiers’
and Sailors’ Relief Act.
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 of 2003, as amended, or any successor legislation
thereto;
(nn) Environmental
Matters.
The
Mortgaged Property is free from any and all toxic or hazardous substances and
there exists no violation of any local, state or federal environmental law,
rule
or regulation. There is no pending action or proceeding directly involving
any
Mortgaged Property of which the Seller is aware in which compliance with any
environmental law, rule or regulation is an issue; and to the best of the
Seller’s knowledge, nothing further remains to be done to satisfy in full all
requirements of each such law, rule or regulation consisting a prerequisite
to
use and enjoyment of said property;
-31-
(oo) Mortgagor
Acknowledgment.
The
Mortgagor has executed a statement to the effect that the Mortgagor has received
all disclosure materials required by applicable law with respect to the making
of ARM Mortgage Loans. Seller shall maintain or cause to be maintained such
statement in the Mortgage File;
(pp) No
Construction Mortgage Loans.
The
Mortgage Loan was not made in connection with (i) the construction or
rehabilitation of a Mortgaged Property or (ii) facilitating the trade-in or
exchange of a Mortgaged Property.
(qq) Selection.
The
Mortgage Loans were not intentionally selected for inclusion under this
Agreement from among Seller’s mortgage loan portfolio on any basis which would
have an adverse effect on the interests of Purchaser.
(rr) Regarding
the Mortgagor.
The
Mortgagor is one or more natural persons;
(ss) Circumstances
Affecting Value, Marketability or Prepayment.
No
circumstances or conditions exist with respect to the Mortgage, the Mortgaged
Property, or the Mortgagor’s credit standing that could reasonably be expected
to adversely affect the value or the marketability of any Mortgaged Property
or
Mortgage Loan, other than the economic and geological conditions generally
and
specifically applicable to the area in which the Mortgaged Property is located,
or cause the Mortgage Loan to become delinquent.
(tt) Predatory
Lending Regulations.
No
Mortgage Loan is subject to the requirements of the Home Ownership and Equity
Protection Act of 1994. No Mortgage Loan is classified as a “high cost,”
“threshold,” “covered”, “abusive” or “predatory” loan or a similar loan under
any applicable state, federal or local law (or 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).
Each
Mortgage Loan is in compliance with the anti-predatory lending eligibility
for
purchase requirements of Xxxxxx Mae’s Selling Guide. Each Mortgage Loan at the
time it was made complied in all material respects with applicable local, state,
and federal laws, including, but not limited to, all applicable predatory and
abusive lending laws;
(uu) Georgia
Mortgage Loans.
No
Mortgage Loan originated between October 1, 2002 and March 7, 2003 (both
inclusive) and secured by a Mortgaged Property located in the State of Georgia
is a “home loan” and is either a “covered” or “high cost loan” as defined in the
Georgia Fair Lending Act, as amended. No Mortgage Loan originated after March
7,
2003 and secured by a Mortgaged Property located in the State of Georgia is
a
“home loan” and is a “high cost loan” as defined in the Georgia Fair Lending
Act, as amended;
(vv) REMIC
Status.
The
Mortgage Loan is a qualified mortgage for inclusion in a “real estate mortgage
investment conduit” for federal income tax purposes;
-32-
(ww) Tax
Service Contract.
The
Seller has obtained a life of loan, transferable real estate tax service
contract with an Approved Tax Service Contract Provider on each Mortgage Loan
and such contract is assignable without penalty, premium or cost to the
Purchaser; upon the initial set-up, each such tax service contract shall contain
complete and accurate information with respect to the Mortgage Loan and
Mortgaged Property;
(xx) Flood
Certification Contract.
The
Seller has obtained a life of loan, transferable flood certification contract
with an Approved Flood Policy Insurer for each Mortgage Loan and such contract
is assignable without penalty, premium or cost to the Purchaser;
(yy) Genuineness
of Signatures.
Each of
the documents in the Mortgage File is genuine and contains genuine signatures.
Each document that Purchaser requires to be an original document is an original
document. All certified copies of original documents are true copies and meet
the applicable requirements and specifications of this Agreement and any other
written requirements that Purchaser has reasonably made of Seller;
(zz) No
Prior Rejection.
No
Mortgage Loan has been previously submitted for purchase by the Seller to the
Purchaser and reviewed and rejected by the Purchaser for underwriting
reasons;
(aaa) Reserved;
(bbb) Qualified
Mortgage Loan.
Each
Mortgage Loan constitutes a qualified mortgage loan under Section
860(g)(a)(3)(A) of the Code and Treasury Regulations Section 1.860G-2(a)(1)
and
(3);
(ccc) Reserved;
(ddd) Recordation.
Each
original Mortgage was recorded and, except for those Mortgage Loans subject
to
MERS, all subsequent assignments of the original Mortgage (other than the
assignment to the Purchaser) have been recorded in the appropriate jurisdictions
wherein such recordation is necessary to perfect the lien thereof as against
creditors of the Seller, or is in the process of recordation;
(eee) Convertability.
No
Mortgage Loan contains a provision whereby the Mortgagor can convert the
mortgage loan to a fixed rate instrument;
(fff) Accuracy
of Statements.
The
information contained in the Mortgage Loan Schedule and all information provided
regarding delinquencies in the Mortgage Loans are true and correct in all
material respects;
(ggg) Pool
Characteristics.
The
pool characteristics with respect to the Mortgage Loans included in the related
Mortgage Loan Package are set forth in the related Acknowledgment and Conveyance
Agreement and are true and complete in all material respects as of the related
Closing Date;
-33-
(hhh) Origination
Practices.
No
error, omission, misrepresentation, negligence, fraud or similar occurrence
with
respect to a Mortgage Loan has taken place on the part of any person including
without limitation the Seller, the Mortgagor, any appraiser, any builder or
developer, or any other party involved in the origination of the Mortgage Loan
or, in the application of any insurance in relation to such Mortgage Loan;
no
predatory or deceptive lending practices or deceptive trade practices,
including, without limitation, the extension of credit without regard to the
ability of the borrower to repay and the extension of credit which has no
apparent benefit to the borrower, were employed in the origination of the
Mortgage Loan. No Mortgagor was a debtor in any state or federal bankruptcy
or
insolvency proceeding at any time within twenty-four months prior to the
origination of the Mortgage Loan, nor has any Mortgagor had a foreclosure
proceeding commenced against such Mortgagor within twenty-four months prior
to
origination of the Mortgage Loan;
(iii) Reserved;
(jjj) Simple
Interest Mortgage Loans.
None of
the Mortgage Loans are simple interest Mortgage Loans;
(kkk) Single
Premium Credit Life Insurance.
No
Mortgagor was required to purchase any credit life, disability, accident or
health insurance product or debt cancellation agreement as a condition of
obtaining the extension of credit evidenced by the Mortgage Loan. No Mortgagor
obtained a prepaid single-premium credit life, disability, accident or health
insurance policy in connection with the origination of the Mortgage Loan. No
proceeds from any Mortgage Loan were used to purchase single premium credit
insurance policies as part of the origination of, or as a condition to closing,
such Mortgage Loan;
(lll) Credit
Reporting.
The
Seller has fully furnished in accordance with the Fair Credit Reporting Act
and
its implementing regulations, accurate and complete information on the Mortgagor
credit files to Equifax, Experian and Trans Union Credit Information Company
on
a monthly basis;
(mmm) FICO
Scores.
The FICO
score of each Mortgage Loan is not less than what is set forth on the related
Mortgage Loan Schedule;
(nnn) Prepayment
Fee.
With
respect to each Mortgage Loan that has a prepayment fee feature, each such
prepayment fee is enforceable and will be enforced by the Seller, and each
prepayment penalty in permitted pursuant to federal, state and local law. No
Mortgage Loan will impose a prepayment penalty for a term in excess of five
years from the date such Mortgage Loan was originated. Except as otherwise
set
forth in the related Mortgage Loan Schedule, with respect to each Mortgage
Loan
that contains a prepayment fee, such prepayment fee is at least equal to the
lesser of (A) the maximum amount permitted under applicable law and (B) six
months interest at the related Mortgage Interest Rate on the amount prepaid
in
excess of 20% of the original principal balance of such Mortgage
Loan;
(ooo) Lost
Instrument Affidavits.
In the
event any Mortgage File contains a lost note affidavit in lieu of a Mortgage
Note, such lost note affidavit, when assigned, will be sufficient to effect
the
transfer of title to the related Mortgage Loan, without the need for a judicial
proceeding, administrative action, court or regulatory order, or similar action
or order;
-34-
(ppp) Higher
Cost Products.
No
Mortgagor was encouraged or required to select a Mortgage Loan product offered
by the Mortgage Loan’s originator which is a higher cost product designed for
less creditworthy borrowers, unless at the time of the Mortgage Loan’s
origination, such Mortgagor did not qualify taking into account credit history
and debt to income ratios for a lower cost credit product then offered by the
Mortgage Loan’s originator or any Affiliate of the Mortgage Loan’s originator.
If, at the time of loan application, the Mortgagor may have qualified for a
lower cost credit product then offered by any mortgage lending Affiliate of
the
Mortgage Loan’s originator, the Mortgage Loan’s originator referred the
Mortgagor’s application to such Affiliate for underwriting
consideration;
(qqq) Mortgagor
Disclosure.
All
points, fees and charges (including finance charges), whether or not financed,
assessed, collected or to be collected in connection with the origination and
servicing of each Mortgage Loan have been disclosed in writing to the Mortgagor
in accordance with applicable state and federal law and regulation. Except
in
the case of a Mortgage Loan in an original principal amount of less than $60,000
which would have resulted in an unprofitable origination, no Mortgagor was
charged “points and fees” (whether or not financed) in an amount greater than 5%
of the principal amount of such Mortgage Loan, such 5% limitation is calculated
in accordance with Xxxxxx Mae’s anti-predatory lending requirements as set forth
in the Xxxxxx Xxx Selling Guide. The
Mortgagor has executed a statement to the effect that the Mortgagor has received
all disclosure materials required by applicable law with respect to the making
of adjustable rate mortgage loans. The Seller shall maintain such statement
in
the Mortgage File;
(rrr) Arbitration.
No
Mortgagor agreed to submit to arbitration to resolve any dispute arising out
of
or relating in any way to the Mortgage Loan transaction. No Mortgage Loan is
subject to mandatory arbitration except when the terms of the arbitration also
contain a waiver provision that provides that in the event of a sale or transfer
of the Mortgage Loan or interest in the Mortgage Loan to Xxxxxx Mae, the terms
of the arbitration are null and void. The
Seller hereby covenants that the Seller or servicer of the Mortgage Loan, as
applicable, will notify the Mortgagor in writing within 60 days of the sale
or
transfer of the Mortgage Loan to Xxxxxx Xxx that the terms of the arbitration
are null and void;
(sss) Cooperative
Loans.
With
respect to each Cooperative Loan: (i) The Cooperative Shares are held by a
person as a tenant-stockholder in a Cooperative. Each original UCC financing
statement, continuation statement or other governmental filing or recordation
necessary to create or preserve the perfection and priority of the first lien
and security interest in the Cooperative Loan and Proprietary Lease has been
timely and properly made. Any security agreement, chattel mortgage or equivalent
document related to the Cooperative Loan and delivered to Purchaser or its
designee establishes in Purchaser a valid and subsisting perfected first lien
on
and security interest in the Mortgaged Property described therein, and Purchaser
has full right to sell and assign the same; (ii) (a) The term of the related
Proprietary Lease is not less than the term of the Cooperative Loan; (b) there
is no prohibition in any Proprietary Lease against pledging the Cooperative
Shares or assigning the Proprietary Lease; (c) the Cooperative has been created
and exists in full compliance with the requirements for residential cooperatives
in the jurisdiction in which the Project is located and qualifies as a
cooperative housing corporation under Section 210 of the Code; and (d) the
Cooperative has good and marketable title to the Project, and owns the Project
in fee simple or under a leasehold; such title is free and clear of any adverse
liens or encumbrances, except the lien of any blanket mortgage; and (iii) The
Seller has the right under the terms of the Mortgage Note, Pledge Agreement
and
Recognition Agreement to pay any maintenance charges or assessments owed by
the
Mortgagor.
-35-
(ttt) Texas
Home Equity Loans.
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. Specifically, without limiting the
generality of the foregoing, any fees paid in connection with such Mortgage
Loan
in order for the Mortgagor to receive a reduced interest rate are not required
to be included in the calculation of the aggregate fees pursuant to Section
50(a)(6)(E) of the Texas Constitution;
(uuu) Negative
Amortization Mortgage Loans.
Each
negative amortization Mortgage Loan is payable each month in monthly
installments in accordance with the terms of the related Mortgage Note, as
indicated on the related Mortgage Loan Schedule. With respect to each negative
amortization Mortgage Loan, during the term of the Mortgage Loan, the unpaid
principal balance of the Mortgage Loan shall not exceed 110% of the initial
approved principal balance of the Mortgage Loan; provided that with respect
to
up to 10% of the Mortgage Loans, the unpaid principal balance of the Mortgage
Loan shall not exceed 115% of the initial unpaid principal balance of the
Mortgage Loan;
(vvv) Imaged
Documents.
Any
document to be included in the Mortgage File that is delivered as an imaged
document (and not accompanied by the original underlying document) represents
a
true, complete, and correct copy of the original document in all respects,
including, but not limited to, all signatures conforming with signatures
contained in the original document, no information having been added or deleted,
and no imaged document having been manipulated or altered in any manner. Each
imaged document is clear and legible in all material respects, including, but
not limited to, accurate reproductions of photographs. No original documents
have been or will be altered in any material manner. The destruction by the
Seller of any original document underlying an imaged document or the inability
of Seller to produce a copy of such original document upon request shall not
cause (i) any material delay in the enforcement of the Mortgage Loan, (ii)
any
inability to collect all amounts due under the Mortgage Loan, including without
limitation, in connection with a foreclosure or other sale of the Mortgaged
Property, (iii) private institutional investors to regard the Mortgage Loan
as
an unacceptable investment or adversely affect the value or marketability of
the
Mortgage Loan, or (iv) any claims from holders of mortgage-backed securities
collateralized by the Mortgage Loan;
(www) FEMA
Designations.
Except
for a “Certified Mortgaged Property” (as defined below), no Mortgaged Property
(i) is in a zip code declared by the Federal Emergency Management Agency
(“FEMA”) as a federal disaster area, (ii) has been declared by FEMA as being an
“Individual Assistance” property or “Category 1” property, or such similar
term(s) or classification(s) that may be used by FEMA from time to time (a
“FEMA
Property”). A “Certified Mortgaged Property” means a FEMA Property for which the
Purchaser receives from the Seller a certified property inspection acceptable
to
the Purchaser that evidences that such FEMA Property has not been materially
damaged at any time prior to the date of such report; and
-36-
(xxx) Second
Lien Mortgage Loans.
(i) Either
(A) no consent for the Second Lien Mortgage Loan is required by the holder
of
the related first lien or (B) such consent has been obtained and is contained
in
the Mortgage File;
(ii) With
respect to any Second Lien Mortgage Loan, the Seller has not received notice
of:
(A) any proceeding for the total or partial condemnation of any Mortgaged
Property, (B) any subsequent, intervening mortgage, lien, attachment, lis
pendens or other encumbrance affecting any Mortgaged Property or (C) any default
under any mortgage, lien or other encumbrance senior to each
Mortgage;
(iii) With
respect to any Second Lien Mortgage Loan, where required or customary in the
jurisdiction in which the Mortgaged Property is located, the original lender
has
filed of record a request for notice of any action by the senior lienholder
under the related First Lien, and the original lender has notified any senior
lienholder in writing of the existence of the Second Lien Mortgage Loan and
requested notification of any action to be taken against the Mortgagor by the
senior lienholder;
(iv) No
Second
Lien Mortgage Loan is a “home equity line of credit” or Texas Home Equity Loan;
and
(v) As
of the
related Closing Date, the Seller has not received a notice of default of a
First
Lien which has not been cured.
|
Section
4.03
|
Remedies
for Breach of Representations and
Warranties.
|
It
is
understood and agreed that the representations and warranties set forth in
Sections 4.01 and 4.02 shall survive the sale of the Mortgage Loans to the
Purchaser and the delivery of the Mortgage Loan Documents to the Custodian
and
shall inure to the benefit of the Purchaser or the Seller, as the case may
be,
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 or the Purchaser of a breach of any of the
foregoing representations and warranties which materially and adversely affects
the value of the Mortgage Loans or the interest of the Purchaser, or which
materially and adversely affects the interests of Purchaser in the related
Mortgage Loan in the case of a representation and warranty relating to a
particular Mortgage Loan (in the case of any of the foregoing, a “Breach”),
the
party discovering such Breach shall give prompt written notice to the
others.
With
respect to those representations and warranties which are made to the best
of
the Seller’s knowledge, if it is discovered by the Seller or the Purchaser that
the substance of such representation and warranty is inaccurate and such
inaccuracy materially and adversely affects the value of the related Mortgage
Loan or the interest of the Purchaser (or which materially and adversely affects
the value of a Mortgage Loan or the interests of the Purchaser in the related
Mortgage Loan in the case of a representation and warranty relating to a
particular Mortgage Loan), notwithstanding the Seller’s lack of knowledge with
respect to the substance of such representation and warranty, such inaccuracy
shall be deemed a breach of the applicable representation and
warranty.
-37-
Upon
discovery by either party of a Breach of any representation or warranty, the
party discovering such Breach shall give prompt written notice to the other
party. Within 60 days of the earlier of either discovery by or notice to the
Seller of any Breach of a representation or warranty, the Seller shall use
its
best efforts promptly to cure such Breach in all material respects and, if
such
Breach cannot be cured, the Seller shall, at the Purchaser’s option, repurchase
such Mortgage Loan at the Repurchase Price. In the event that a Breach shall
involve any representation or warranty set forth in Section 4.01(A) and such
Breach cannot be cured within 60 days of the earlier of either discovery by
or
notice to the Seller of such Breach, all of the Mortgage Loans shall, at the
Purchaser’s option, be repurchased by the Seller at the Repurchase
Price.
Any
repurchase of a Mortgage Loan or Loans pursuant to the foregoing provisions
of
this Section 4.03 shall be accomplished by deposit in the Custodial Account
of
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.
At
the
time of repurchase, the Purchaser and the Seller 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 Custodian relating to the Deleted Mortgage
Loan. The Purchaser shall cause the Custodian to release to the Seller the
related Mortgage File within three (3) Business Days of the date that the
Company deposits the Repurchase Price into the Custodial Account. In the event
of a repurchase, the Seller shall, simultaneously with such reassignment, give
written notice to the Purchaser and any servicer of the Mortgage Loans that
such
repurchase has taken place, and the Mortgage Loan Schedule shall be deemed
amended to reflect the withdrawal of the Deleted Mortgage Loan from this
Agreement. For the month of repurchase, distributions to Purchaser shall include
the Monthly Payment due on any Deleted Mortgage Loan in the month of repurchase,
and the Seller shall thereafter be entitled to retain all amounts subsequently
received by the Seller in respect of such Deleted Mortgage Loan.
In
addition to such repurchase obligation, the Seller shall indemnify the Purchaser
and hold it harmless against any losses, damages, penalties, fines, forfeitures,
including without limitation, 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
any representation or warranty made by the Seller in this Agreement. It is
understood and agreed that the obligations of the Seller set forth in this
Section 4.03 to cure or repurchase a defective Mortgage Loan and to indemnify
the Purchaser as provided in this Section 4.03 constitute the sole remedies
of
the Purchaser respecting a Breach of the foregoing representations and
warranties.
Any
cause
of action against the Seller relating to or arising out of the Breach of any
representations and warranties made in Sections 4.01 and 4.02 shall accrue
as to
any Mortgage Loan upon (i) discovery of such Breach by the Purchaser or notice
thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure
such
Breach within the applicable cure period or repurchase such Mortgage Loan as
specified above, and (iii) demand upon the Seller by the Purchaser for
compliance with this Agreement.
-38-
With
respect to any Mortgage Loan, if the related Mortgagor is 30 or more days
delinquent with respect to the Mortgage Loan’s first and second Monthly Payments
due to the Purchaser, the Seller shall, upon receipt of notice from the
Purchaser, promptly repurchase such Mortgage Loan from the Purchaser in
accordance with this Section; provided, that no right to cure set forth herein
shall apply. Notwithstanding the foregoing, the Seller’s obligation to
repurchase such Mortgage Loan shall be conditioned upon the Purchaser providing
written notice to the Seller of such repurchase obligation within 90 days of
the
date upon which the Purchaser receives notice from the Seller of such
default.
Notwithstanding
any provision to the contrary, in the event that a Mortgage Loan is prepaid
in
full within sixty days of the related Closing Date, the Seller shall pay to
the
Purchaser the purchase price premium paid by the Purchaser for the Mortgage
Loan, reduced by any prepayment penalty fees received from the borrower and
remitted to the Purchaser; provided, however, in the event that the Purchaser
or
a subsequent servicer forgives the related prepayment penalty and still
satisfies the Mortgage Loan, the Seller shall pay to the Purchaser the purchase
price premium paid by the Purchaser for the Mortgage Loan, reduced by the
forgiven prepayment penalty amount. Notwithstanding the foregoing, the Seller’s
obligation to remit such premium shall be conditioned upon the Purchaser
providing written notice to the Seller of such repurchase obligation within
90
days of the date upon which the Purchaser receives notice from the Seller of
such prepayment.
|
Section
4.04
|
Post
Closing Due Diligence.
|
From
the
related Closing Date to a period not to exceed 30 days after the such Closing
Date, the Purchaser shall have the right to review the Mortgage Files and obtain
BPOs on the Mortgaged Properties relating to the Mortgage Loans purchased on
such Closing Date, with the results of such Mortgage File and BPO reviews to
be
communicated to the Seller for a period up to 30 days after such Closing Date.
In addition, the Purchaser shall have the right to reject any Mortgage Loan
which in the Purchaser’s sole determination (i) fails to conform to the
Underwriting Guidelines or prudent secondary market underwriting guidelines
for
similar Mortgage Loans, (ii) is not an acceptable credit risk, (iii) was
underwritten without verification of the borrower’s income and assets and there
is no credit report or credit score in the Mortgage File or (iv) the value
of
the Mortgaged Property pursuant to any BPO obtained by the Purchaser is less
than 85% or the lesser of (A) the original appraised value of the Mortgaged
Property or (B) the purchase price of the Mortgaged Property as of the date
of
origination. In the event that the Purchaser so rejects any Mortgage Loan,
the
Seller shall repurchase the rejected Mortgage Loan at the Repurchase Price
in
the manner prescribed in Section 4.03 upon receipt of notice from the Purchaser
of the rejection of such Mortgage Loan. Any rejected Mortgage Loan shall be
removed from the terms of this Agreement. The Seller shall make available all
files required by Purchaser in order to complete its review. Any review
performed by the Purchaser prior to the Closing Date does not limit the
Purchaser’s rights or the Seller’s obligations under this Agreement thereafter.
Notwithstanding that a Mortgage Loan is underwritten pursuant to the related
Underwriting Guidelines, if a Mortgage Loan is underwritten without verification
of the borrower’s income and assets and there is no credit report and credit
score, the Purchaser has the right to reject such Mortgage Loan.
-39-
|
Section
4.05
|
Restrictions
and Requirements Applicable in the Event that
a Mortgage Loan is Acquired by a
REMIC.
|
In
the
event that any Mortgage Loan is held by a REMIC, notwithstanding any contrary
provision of this Agreement, the following provisions shall be applicable to
such Mortgage Loan:
(a) Repurchase
of Mortgage Loans.
With
respect to any Mortgage Loan that is not in default or as to which no default
is
imminent, no purchase or substitution pursuant to Section 4.03 or 8.03 shall
be
made, unless, if so required by the applicable REMIC Documents the Seller has
obtained an Opinion of Counsel to the effect that such purchase will not (i)
result in the imposition of taxes on “prohibited transactions” of such REMIC (as
defined in Section 860F of the Code) or otherwise subject the REMIC to tax,
or
(ii) cause the REMIC to fail to qualify as a REMIC at any time.
(b) Tax
Returns.
(i) With
respect to the Mortgage Loans serviced by the Seller under this Agreement,
the
Seller covenants and agrees that it shall cooperate and provide any and all
information to enable the trustee or other responsible party to perform all
of
the following duties: (1) prepare, file and sign all Tax Returns using a
calendar year as the taxable year for the REMIC and the accrual method of
accounting when and as required by the REMIC Provisions and other applicable
federal income tax laws; (2) make an election, on behalf of the REMIC to be
treated as a REMIC on the Tax Returns of the REMIC for its first taxable year,
in accordance with the REMIC Provisions; (3) prepare and file or cause to be
prepared and filed, and deliver, any and all Tax Returns, information statements
or other filings required to be delivered to any governmental taxing authority,
or to any owner thereunder, pursuant to any applicable federal, state or local
tax law with respect to the REMIC or the certificates issued thereunder and
the
transactions contemplated thereby; (4) cause to be provided to the owner
thereunder such data necessary for their original issue discount computations
and market discount computations with respect to the certificates issued
thereunder for federal income tax purposes as the owner thereunder may
reasonably request from time to time; (5) conduct the affairs of the REMIC
so as
to maintain the status thereof as a REMIC under the REMIC Provisions; (6) not
knowingly or intentionally take any action or omit to take any action that
would
cause the termination of the REMIC status of the REMIC; (7) make any election
required by the REMIC Provisions to treat as “foreclosure property” within the
meaning of Section 860G(a)(8) of the Code all property that the REMIC has
acquired or will acquire that may qualify as such foreclosure property; (8)
cause to be provided notice to the holders of any certificates issued thereunder
of the existence of the restrictions on transfers and exchange provided under
the REMIC documents; (9) cause to be provided information necessary for the
computation of tax imposed on the transfer of a residual certificate issued
thereunder to a Disqualified Organization, or an agent of a Disqualified
Organization, provided that the reasonable cost of computing and furnishing
such
information may be charged to the person liable for such tax; and (9) in a
timely manner cause to be paid the amount of any and all federal, state and
local taxes imposed on the REMIC or its respective assets or transactions
including, without limitation, (i) “prohibited transaction” penalty taxes as
defined in Section 860F of the Code, if, when and as the same shall be due
and
payable, (ii) any tax on contributions to a REMIC after the closing date of
such REMIC imposed under Section 860G(d) of the Code and (iii) any tax on
“net income from foreclosure property” as defined in Section 860G(c) of the
Code.
-40-
(ii) Within
30
days after the closing date of any REMIC, if so required by the applicable
REMIC
Documents, the Seller shall cooperate and provide any and all information
necessary or helpful to enable the trustee or other responsible party to prepare
and file with the Internal Revenue Service Form 8811, “Information Return for
Real Estate Mortgage Investment Conduits (REMIC) and Issuers of Collateralized
Debt Obligations” for the REMIC. The trustee or other responsible party shall
sign such returns and is hereby indemnified and held harmless by the Seller
with
respect to any tax or liability arising from the trustee’s or other responsible
party’s signing such information returns to the extent that such tax or
liability results from information provided by or on behalf of the Seller or
information that should have been provided by or on behalf of the
Seller.
(c) General
Servicing Obligations.
The
Seller shall sell any REO Property within three years after its acquisition
by
the REMIC unless (i) the Seller applies for an extension of such three-year
period from the Internal Revenue Service pursuant to the REMIC Provisions and
Code Section 856(e)(3), in which event such REO Property shall be sold within
the applicable extension period, or (ii) the Seller obtains for the Purchaser
an
Opinion of Counsel, addressed to the Purchaser and the Seller, to the effect
that the holding by the REMIC of such REO Property subsequent to such three
year
period will not result in the imposition of taxes on “prohibited transactions”
as defined in Section 860F of the Code or cause the REMIC to fail to qualify
as
a REMIC under the REMIC Provisions or comparable provisions of relevant state
laws at any time. The Seller shall manage, conserve, protect and operate each
REO Property for the Purchaser solely for the purpose of its prompt disposition
and sale in a manner which does not cause such REO Property to fail to qualify
as “foreclosure property” within the meaning of Section 860G(a)(8) or result in
the receipt by the REMIC of any “income from non-permitted assets” within the
meaning of Section 860F(a)(2)(B) of the Code or any “net income from foreclosure
property” which is subject to taxation under Section 860G(a)(1) of the Code.
Pursuant to its efforts to sell such REO Property, the Seller shall either
itself or through an agent selected by the Seller protect and conserve such
REO
Property in the same manner and to such extent as is customary in the locality
where such REO Property is located and may, incident to its conservation and
protection of the interests of the Purchaser, rent the same, or any part
thereof, as the Seller deems to be in the best interest of the Seller and the
Purchaser for the period prior to the sale of such REO Property; provided,
however, that any rent received or accrued with respect to such REO Property
qualifies as “rents from real property” as defined in Section 856(d) of the
Code.
(d) Additional
Covenants.
In
addition to the provision set forth in this Section 4.05, if a REMIC election
is
made with respect to the arrangement under which any of the Mortgage Loans
or
REO Properties are held, then, with respect to such Mortgage Loans and/or REO
Properties, and notwithstanding the terms of this Agreement, the Seller shall
not take any action, cause the REMIC to take any action or fail to take (or
fail
to cause to be taken) any action that, under the REMIC Provisions, if taken
or
not taken, as the case may be, could (i) endanger the status of the REMIC as
a
REMIC or (ii) result in the imposition of a tax upon the REMIC (including but
not limited to the tax on “prohibited transactions” as defined in Section
860F(a)(2) of the Code and the tax on “contributions” to a REMIC set forth in
Section 860G(d) of the Code) unless the Seller has received an Opinion of
Counsel (at the expense of the party seeking to take such action) to the effect
that the contemplated action will not endanger such REMIC status or result
in
the imposition of any such tax.
-41-
If
a
REMIC election is made with respect to the arrangement under which any Mortgage
Loans or REO Properties are held, the Seller shall amend this Agreement such
that it will meet all Rating Agency requirements.
ARTICLE
V
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
|
Section
5.01
|
Seller
to Act as Servicer.
|
The
Seller, as an independent contractor, shall service and administer the Mortgage
Loans from the related Closing Date and shall have full power and authority,
acting alone, to do any and all things in connection with such servicing and
administration which the Seller may deem necessary or desirable, consistent
with
the terms of this Agreement and with Accepted Servicing Practices.
Consistent
with the terms of this Agreement, prior to a Mortgage Loan becoming subject
to a
Reconstitution Agreement, the Seller may waive, modify or vary any term of
any
Mortgage Loan or consent to the postponement of strict compliance with any
such
term or in any manner grant indulgence to any Mortgagor if in the Seller’s
reasonable and prudent determination such waiver, modification, postponement
or
indulgence is not materially adverse to the Purchaser, provided, however, that
the Seller shall not make any future advances with respect to a Mortgage Loan
and (unless the Mortgagor is in default with respect to the Mortgage Loan or
such default is, in the judgment of the Seller, imminent and the Seller has
obtained the prior written consent of the Purchaser) the Seller shall not permit
any modification with respect to any Mortgage Loan that would change the
Mortgage Interest Rate, defer or forgive the payment of principal or interest,
reduce or increase the outstanding principal balance (except for actual payments
of principal) or change the final maturity date on such Mortgage Loan. Seller
agrees and acknowledges, provided,
that,
in the event of any such modification which permits the deferral of interest
or
principal payments on any Mortgage Loan, the Seller shall, on the Business
Day
immediately preceding the Remittance Date in any month in which any such
principal or interest payment has been deferred, deposit in the Custodial
Account from its own funds, the difference between (a) such month’s principal
and one month’s interest at the Mortgage Loan Remittance Rate on the unpaid
principal balance of such Mortgage Loan and (b) the amount paid by the
Mortgagor. Without limiting the generality of the foregoing, the Seller shall
continue, and is hereby authorized and empowered, to execute and deliver on
behalf of itself and the Purchaser, all instruments of satisfaction or
cancellation, or of partial or full release, discharge and all other comparable
instruments, with respect to the Mortgage Loans and with respect to the
Mortgaged Properties. If reasonably required by the Seller, the Purchaser shall
promptly furnish the Seller with any powers of attorney and other documents
necessary or appropriate to enable the Seller to carry out its servicing and
administrative duties under this Agreement.
-42-
In
servicing and administering the Mortgage Loans, the Seller shall employ
procedures (including collection procedures) and exercise the same care that
it
customarily employs and exercises in servicing and administering mortgage loans
for its own account, giving due consideration to Accepted Servicing Practices
where such practices do not conflict with the requirements of this Agreement,
and the Purchaser’s reliance on the Seller.
With
respect to any Second Lien Mortgage Loan, if the Seller is notified that any
First Lien lienholder has accelerated or intends to accelerate the obligations
secured by the First Lien, or has declared or intends to declare a default
under
the Mortgage or the Mortgage Note secured thereby, or has filed or intends
to
file an election to have the Mortgaged Property sold or foreclosed, the Seller
shall immediately notify the Purchaser of any such notice from or action by
the
First Lien lienholder and of the amount necessary to cure the default or
reinstate the First Lien. The Seller shall further make recommendations to
the
Purchaser (including note sales to third parties) so as to best protect the
Purchaser’s interest in and the security of the related Mortgage Loan. If the
Purchaser directs the Seller to cure a default under or otherwise reinstate
a
First Lien, the Purchaser will advance to the Seller necessary funds to cure
the
default or reinstate the First Lien. The Seller shall thereafter take immediate
action to recover from the Mortgagor the amount so advanced. The Purchaser
shall
notify the Seller in writing of any and all action which it requests the Seller
to take.
In
the
event that the Seller reasonably deems that the factual circumstances require
prompt action, the Seller may (but shall not be obligated to) without notice
to
the Purchaser, advance the necessary funds to cure the default or reinstate
the
First Lien so as to best protect the Purchaser’s interest. The Seller shall
thereafter notify the Purchaser of the action taken, including the amount of
the
advance. The Purchaser shall reimburse the Seller for all advances made pursuant
to this paragraph. The Seller shall thereafter take immediate action to recover
from the Mortgagor the amount so advanced.
The
Seller shall cause to be maintained for each Cooperative Loan a copy of the
financing statements and shall file such financing statements and continuation
statements as necessary, in accordance with the Uniform Commercial Code
applicable in the jurisdiction in which the related Cooperative Apartment is
located, to perfect and protect the security interest and lien of the
Purchaser.
|
Section
5.02
|
Liquidation
of Mortgage Loans.
|
In
the
event that any payment due under any Mortgage Loan and not postponed pursuant
to
Section 5.01 is not paid when the same becomes due and payable, or in the
event the Mortgagor fails to perform any other covenant or obligation under
the
Mortgage Loan and such failure continues beyond any applicable grace period,
the
Seller shall take such action as (a) the Seller would take under similar
circumstances with respect to a similar mortgage loan held for its own account
for investment, (b) shall be consistent with Accepted Servicing Practices,
(c) the Seller shall determine prudently to be in the best interest of
Purchaser, and (d) is consistent with any related PMI Policy. In the event
that any payment due under any Mortgage Loan is not postponed pursuant to
Section 5.01 and remains delinquent for a period of 90 days or any other
default continues for a period of 90 days beyond
the expiration of any grace or cure period, the Seller shall commence
foreclosure proceedings, provided that, prior to commencing foreclosure
proceedings, the Seller shall notify the Purchaser in writing of the
Seller’s
intention to do so, and the Seller shall not commence foreclosure proceedings
if
the Purchaser objects to such action within 5 Business Days of receiving such
notice. In such connection, the Seller shall from its own funds make all
necessary and proper Servicing Advances, provided, however, that the Seller
shall not be required to expend its own funds in connection with any foreclosure
or towards the restoration or preservation of any Mortgaged Property, unless
it
shall determine (a) that such preservation, restoration and/or foreclosure
will increase the proceeds of liquidation of the Mortgage Loan to Purchaser
after reimbursement to itself for such expenses and (b) that such expenses
will be recoverable by it either through Liquidation Proceeds (respecting which
it shall have priority for purposes of withdrawals from the Custodial Account
pursuant to Section 5.05) or through Insurance Proceeds (respecting which
it shall have similar priority).
-43-
|
Section
5.03
|
Collection
of Mortgage Loan Payments.
|
Continuously
from the related Closing Date until the date each Mortgage Loan ceases to be
subject to this Agreement, the Seller shall proceed diligently to collect all
payments due under each of the Mortgage Loans when the same shall become due
and
payable and shall take special care in ascertaining and estimating Escrow
Payments and all other charges that will become due and payable with respect
to
the Mortgage Loans and each related Mortgaged Property, to the end that the
installments payable
by the Mortgagors will be sufficient to pay such charges as and when they become
due and payable.
|
Section
5.04
|
Establishment
of and Deposits to Custodial
Account.
|
The
Seller shall segregate and hold all funds collected and received pursuant to
a
Mortgage Loan separate and apart from any of its own funds and general assets
and shall establish and maintain one or more Custodial Accounts, in the form
of
time deposit or demand accounts, titled “GreenPoint Mortgage Funding, Inc. in
trust for Xxxxxx Brothers Bank, purchaser of Conventional Residential Adjustable
and Fixed Rate Mortgage Loans, Group No. 2006-FLOW”. The Custodial Account shall
be established with a Qualified Depository acceptable to the Purchaser. Any
funds deposited in the Custodial Account shall at all times be fully insured
to
the full extent permitted under applicable law. Funds deposited in the Custodial
Account may be drawn on by the Seller in accordance with Section 5.05. The
creation of any Custodial Account shall be evidenced by a certification in
the
form of Exhibit
D-1
hereto,
in the case of an account established with the Seller, or by a letter agreement
in the form of Exhibit
D-2
hereto,
in the case of an account held by a depository other than the Seller. A copy
of
such certification or letter agreement shall be furnished to the Purchaser
and,
upon request, to any subsequent purchaser of the Mortgage Loans.
-44-
The
Seller shall deposit in the Custodial Account on a daily basis within two (2)
Business Days of receipt, and retain therein, the following collections received
by the Seller and payments made by the Seller after the Cut-off
Date:
(i) all
payments on account of principal on the Mortgage Loans, including all Principal
Prepayments;
(ii) any
Prepayment Charge received in connection with the Mortgage Loans;
(iii) all
payments on account of interest on the Mortgage Loans adjusted to the Mortgage
Loan Remittance Rate;
(iv) all
Liquidation Proceeds;
(v) all
Insurance Proceeds including amounts required to be deposited pursuant to
Section 5.11 (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 Section 5.15), Section 5.12 and Section
5.15;
(vi) all
Condemnation Proceeds which are not applied to the restoration or repair of
the
Mortgaged Property or released to the Mortgagor in accordance with Section
5.15;
(vii) any
amount required to be deposited in the Custodial Account pursuant to Section
5.01, 5.10, 5.11, 5.20, 6.01, 6.03 or 7.02;
(viii) any
amounts payable in connection with the repurchase of any Mortgage Loan pursuant
to Section 4.03;
(ix) any
amounts required to be deposited by the Seller pursuant to Section 5.12 in
connection with the deductible clause in any blanket hazard insurance policy;
(x) any
amounts required to be deposited by the Seller pursuant to Section 5.16 in
connection with any unpaid claims that are a result of a breach by the Seller
or
any subservicer of the obligations hereunder or under the terms of a PMI
Policy;
(xi) any
amounts received by the Seller under a PMI or LPMI Policy;
(xii) with
respect to each Principal Prepayment in full or in part, the Prepayment Interest
Shortfall Amount, if any, for the month of distribution. Such deposit shall
be
made from the Seller’s own funds, without reimbursement therefor up to a maximum
amount per month of the Servicing Fee actually received for such month for
the
Mortgage Loans; and
(xiii) any
amounts received with respect to or related to any REO Property and all REO
Disposition Proceeds pursuant to Section 5.17.
The
foregoing requirements for deposit into the Custodial Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of Ancillary Income need not be
deposited by the Seller into the Custodial Account. Any interest paid on funds
deposited in the Custodial Account by the depository institution shall accrue
to
the benefit of the Seller and the Seller shall be entitled to retain and
withdraw such interest from the Custodial Account pursuant to Section
5.05.
-45-
|
Section
5.05
|
Permitted
Withdrawals From Custodial
Account.
|
The
Seller shall, from time to time, withdraw funds from the Custodial Account
for
the following purposes:
(i) to
make
payments to the Purchaser in the amounts and in the manner provided for in
Section 6.01;
(ii) to
reimburse itself for Monthly Advances of the Seller’s funds made pursuant to
Section 6.04, the Seller’s right to reimburse itself pursuant to this subclause
(ii) being limited to amounts received on the related Mortgage Loan which
represent late payments of principal and/or interest respecting which any such
advance was made, it being understood that, in the case of any such
reimbursement, the Seller’s right thereto shall be prior to the rights of
Purchaser, except that, where the Seller is required to repurchase a Mortgage
Loan pursuant to Section 4.03 or 8.03, the Seller’s right to such reimbursement
shall be subsequent to the payment to the Purchaser of the Repurchase Price
pursuant to such sections and all other amounts required to be paid to the
Purchasers with respect to such Mortgage Loan;
(iii) to
reimburse itself for unreimbursed Servicing Advances and any unpaid Servicing
Fees, the Seller’s right to reimburse itself pursuant to this subclause (ii)
with respect to any Mortgage Loan being limited to related Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds, REO Disposition Proceeds and other
amounts received in respect of the related REO Property, and such other amounts
as may be collected by the Seller from the Mortgagor or otherwise relating
to
the Mortgage Loan, it being understood that, in the case of any such
reimbursement, the Seller’s right thereto shall be prior to the rights of the
Purchaser except where the Seller is required to repurchase a Mortgage Loan
pursuant to Section 4.03 or 8.03, in which case the Seller’s right to such
reimbursement shall be subsequent to the payment to the Purchaser of the
Repurchase Price pursuant to such sections and all other amounts required to
be
paid to the Purchaser with respect to such Mortgage Loan;
(iv) to
pay
itself interest on funds deposited in the Custodial Account;
(v) with
respect to each LPMI Loan, an amount equal to the related LPMI Fee to make
payment of premiums due under the LPMI Policy;
(vi) to
pay
any amount required to be paid pursuant to Section 5.17 related to any REO
Property, it being understood that in the case of any such expenditure or
withdrawal related to a particular REO Property, the amount of such expenditure
or withdrawal from the Custodial Account shall be limited to amounts on deposit
in the Custodial Account with respect to the related REO Property;
(vii) to
clear
and terminate the Custodial Account upon the termination of this Agreement;
-46-
(viii) to
withdraw funds deposited in error;
(ix) to
invest
fund in certain Eligible Investments; and
(x) to
transfer funds to another Custodial Account established with a Qualified
Depository in accordance with Section 5.10.
In
the
event that the Custodial Account is interest bearing, on each Remittance Date,
the Seller shall withdraw all funds from the Custodial Account except for those
amounts which, pursuant to Section 6.01, the Seller is not obligated to remit
on
such Remittance Date. The Seller may use such withdrawn funds only for the
purposes described in this Section 5.05.
|
Section
5.06
|
Establishment
of and Deposits to Escrow
Account.
|
The
Seller shall segregate and hold all funds collected and received pursuant to
a
Mortgage Loan constituting Escrow Payments separate and apart from any of its
own funds and general assets and shall establish and maintain one or more Escrow
Accounts, in the form of time deposit or demand accounts, titled, “GreenPoint
Mortgage Funding, Inc., in trust for Xxxxxx Brothers Bank, FSB, purchaser of
Conventional Residential Adjustable and Fixed Rate Mortgage Loans, Group No.
2006-FLOW, and various Mortgagors”. The Escrow Accounts shall be established
with a Qualified Depository, in a manner which shall provide maximum available
insurance thereunder. Funds deposited in the Escrow Account may be drawn on
by
the Seller in accordance with Section 5.07. The creation of any Escrow Account
shall be evidenced by a certification in the form of Exhibit
E-1
hereto,
in the case of an account established with the Seller, or by a letter agreement
in the form of Exhibit
E-2
hereto,
in the case of an account held by a depository other than the Seller. A copy
of
such certification shall be furnished to the Purchaser and, upon request, to
any
subsequent purchaser.
The
Seller shall deposit in the Escrow Account or Accounts not later than two
Business Days after receipt thereof, and retain therein:
(i) all
Escrow Payments collected on account of the Mortgage Loans, for the purpose
of
effecting timely payment of any such items as required under the terms of this
Agreement; and
(ii) all
amounts representing Insurance Proceeds or Condemnation Proceeds which are
to be
applied to the restoration or repair of any Mortgaged Property.
The
Seller shall make withdrawals from the Escrow Account only to effect such
payments as are required under this Agreement, as set forth in Section 5.07.
The
Seller shall be entitled to retain any interest paid on funds deposited in
the
Escrow Account by the depository institution, other than interest on escrowed
funds required by law to be paid to the Mortgagor. To the extent required by
law, the Seller shall pay interest on escrowed funds to the Mortgagor
notwithstanding that the Escrow Account may be non-interest bearing or that
interest paid thereon is insufficient for such purposes.
-47-
|
Section
5.07
|
Permitted
Withdrawals From Escrow
Account.
|
Withdrawals
from the Escrow Account or Accounts may be made by the Seller only:
(i) to
effect
timely payments of ground rents, taxes, assessments, water rates, mortgage
insurance premiums, condominium charges, fire and hazard insurance premiums
or
other items constituting Escrow Payments for the related Mortgage;
(ii) to
reimburse the Seller for any Servicing Advances made by the Seller pursuant
to
Section 5.09 with respect to a related Mortgage Loan, but only from amounts
received on the related Mortgage Loan which represent late collections of Escrow
Payments thereunder;
(iii) to
refund
to any Mortgagor any funds found to be in excess of the amounts required under
the terms of the related Mortgage Loan;
(iv) for
transfer to the Custodial Account and application to reduce the principal
balance of the Mortgage Loan in accordance with the terms of the related
Mortgage and Mortgage Note;
(v) for
application to restoration, inspection or repair of the Mortgaged Property
in
accordance with the procedures outlined in Section 5.15;
(vi) to
pay to
the Seller, or any Mortgagor to the extent required by law, any interest paid
on
the funds deposited in the Escrow Account;
(vii) to
clear
and terminate the Escrow Account on the termination of this Agreement;
(viii) to
withdraw funds deposited in error.
The
Seller will be responsible for the administration of the Escrow Accounts and
will be obligated to make Servicing Advances to the Escrow Account in respect
of
its obligations under this Section 5.07, reimbursable from the Escrow Accounts
or Custodial Account to the extent not collected from the related Mortgagor,
anything to the contrary notwithstanding, when and as necessary to avoid the
lapse of insurance coverage on the Mortgaged Property, or which the Seller
knows, or in the exercise of the required standard of care of the Seller
hereunder should know, is necessary to avoid the loss of the Mortgaged Property
due to a tax sale or the foreclosure as a result of a tax lien. If any such
payment has not been made and the Seller receives notice of a tax lien with
respect to the Mortgage being imposed, the Seller will, within ten (10) days
of
such notice, advance or cause to be advanced funds necessary to discharge such
lien on the Mortgaged Property.
|
Section
5.08
|
Completion
and Recordation of Assignment of Mortgage.
|
To
the
extent permitted by applicable law, each of the Assignments of Mortgage to
be
prepared by the Seller will be 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.
-48-
|
Section
5.09
|
Payment
of Taxes, Insurance and Other
Charges.
|
(a) With
respect to each Mortgage Loan which provides for Escrow Payments, the Seller
shall maintain accurate records reflecting the status of ground rents, taxes,
assessments, water rates, sewer rents, and other charges which are or may become
a lien upon the Mortgaged Property and the status of PMI Policy premiums and
fire and hazard insurance coverage and shall obtain, from time to time, all
bills for the payment of such charges (including renewal premiums)
(“Property
Charges”)
and
shall effect payment thereof prior to the applicable penalty or termination
date, employing for such purpose deposits of the Mortgagor in the Escrow Account
which shall have been estimated and accumulated by the Seller in amounts
sufficient for such purposes, as allowed under the terms of the Mortgage. The
Seller assumes full responsibility for the timely payment of all such bills
and
shall effect timely payment of all such charges irrespective of each Mortgagor’s
faithful performance in the payment of same or the making of the Escrow
Payments, the Seller shall make advances from its own funds to effect such
payments
(b) To
the
extent that a Mortgage Loan does not provide for Escrow Payments, the Seller
shall make advances from its own funds to effect payment of all Property Charges
upon receipt of notice of any failure to pay on the part of the Mortgagor,
or at
such other time as the Seller determines to be in the best interest of the
Purchaser, provided, that in any event the Seller shall pay such charges on
or
before the earlier of (a) any date by which payment is necessary to preserve
the
lien status of the Mortgage or (b) the date which is ninety days after the
date
on which such charges first became due. The Seller shall pay any late fee or
penalty which is payable due to any delay in payment of any Property Charge
after the earlier to occur of (a) the date on which the Seller receives notice
of the failure of the Mortgagor to pay such Property Charge or (b) the date
which is ninety days after the date on which such charges first became
due.
|
Section
5.10
|
Protection
of Accounts.
|
The
Seller may transfer the Custodial Account or the Escrow Account to a different
Qualified Depository from time to time. Such transfer shall be made only upon
obtaining the consent of Purchaser, which consent shall not be withheld
unreasonably.
The
Seller shall bear any expenses, losses or damages sustained by the Purchaser
because the Custodial Account and/or the Escrow Account are not demand deposit
accounts.
Amounts
on deposit in the Custodial Account and the Escrow Account may at the option
of
the Seller be invested in Eligible Investments; provided that in the event
that
amounts on deposit in the Custodial Account or the Escrow Account exceed the
amount fully insured by the FDIC (the “Insured
Amount”)
the
Seller shall be obligated to invest the excess amount over the Insured Amount
in
Eligible Investments on the same Business Day as such excess amount becomes
present in the Custodial Account or the Escrow Account. Any such Eligible
Investment shall mature no later than the Determination Date next following
the
date of such Eligible Investment, provided, however, that if such Eligible
Investment is an obligation of a Qualified Depository (other than the Seller)
that maintains the Custodial Account or the Escrow Account, then such Eligible
Investment may mature on such Remittance Date. Any such Eligible Investment
shall be made in the name of the Seller in trust for the benefit of the
Purchaser. All income on or gain realized from any such Eligible Investment
shall be for the benefit of the Seller and may be withdrawn at any time by
the
Seller. Any losses incurred in respect of any such investment shall be deposited
in the Custodial Account or the Escrow Account, by the Seller out of its own
funds immediately as realized.
-49-
|
Section
5.11
|
Maintenance
of Hazard Insurance.
|
The
Seller shall cause to be maintained for each Mortgage Loan hazard insurance
such
that all buildings upon the Mortgaged Property are insured by a generally
acceptable insurer acceptable to Xxxxxx Xxx under the Xxxxxx Mae Guides against
loss by fire, hazards of extended coverage and such other hazards as are
customary in the area where the Mortgaged Property is located, in an amount
which is at least equal to the lesser of (a) 100% of the maximum insurable
value
of the improvements securing such Mortgage Loan and (b) the greater of (i)
the
outstanding principal balance of the Mortgage Loan and (ii) an amount such
that
the proceeds thereof shall be sufficient to prevent the Mortgagor or the loss
payee from becoming a co-insurer.
If
upon
origination of the Mortgage Loan, the related Mortgaged Property was located
in
an area identified in the Federal Register by the Flood Emergency Management
Agency as having special flood hazards (and such flood insurance has been made
available) a flood insurance policy meeting the requirements of the current
guidelines of the Federal Insurance Administration is in effect with a generally
acceptable insurance carrier acceptable to Xxxxxx Xxx under the Xxxxxx Mae
Guides in an amount representing coverage equal to the lesser of (i) the minimum
amount required, under the terms of coverage, to compensate for any damage
or
loss on a replacement cost basis (or the unpaid balance of the mortgage if
replacement cost coverage is not available for the type of building insured)
and
(ii) the maximum amount of insurance which is available under the Flood Disaster
Protection Act of 1973, as amended. If at any time during the term of the
Mortgage Loan, the Seller determines in accordance with applicable law and
pursuant to the Xxxxxx Xxx Guides that a Mortgaged Property is located in a
special flood hazard area and is not covered by flood insurance or is covered
in
an amount less than the amount required by the Flood Disaster Protection Act
of
1973, as amended, the Seller shall notify the related Mortgagor that the
Mortgagor must obtain such flood insurance coverage, and if said Mortgagor
fails
to obtain the required flood insurance coverage within thirty (30) days after
such notification, the Seller shall immediately force place the required flood
insurance on the Mortgagor’s behalf.
If
a
Mortgage is secured by a unit in a condominium project, the Seller shall verify
that the coverage required of the owner’s association, including hazard, flood,
liability, and fidelity coverage, is being maintained in accordance with then
current Xxxxxx Mae requirements, and secure from the owner’s association its
agreement to notify the Seller promptly of any change in the insurance coverage
or of any condemnation or casualty loss that may have a material effect on
the
value of the Mortgaged Property as security.
-50-
The
Seller shall cause to be maintained on each Mortgaged Property such other or
additional insurance as may be required pursuant to such applicable laws and
regulations as shall at any time be in force and as shall require such
additional insurance, or pursuant to the requirements of any private mortgage
guaranty insurer, or as may be required to conform with Accepted Servicing
Practices.
In
the
event that any Purchaser or the Seller shall determine that the Mortgaged
Property should be insured against loss or damage by hazards and risks not
covered by the insurance required to be maintained by the Mortgagor pursuant
to
the terms of the Mortgage, the Seller shall communicate and consult with the
Mortgagor with respect to the need for such insurance and bring to the
Mortgagor’s attention the desirability of protection of the Mortgaged
Property.
All
policies required hereunder shall name the Seller as loss payee and shall be
endorsed with standard or union mortgagee clauses, without contribution, which
shall provide for at least 30 days’ prior written notice of any cancellation,
reduction in amount or material change in coverage.
The
Seller shall not interfere with the Mortgagor’s freedom of choice in selecting
either his insurance carrier or agent, provided, however, that the Seller shall
not accept any such insurance policies from insurance companies unless such
companies are acceptable to Xxxxxx Xxx under the Xxxxxx Mae Guides and are
licensed to do business in the jurisdiction in which the Mortgaged Property
is
located. The Seller shall determine that such policies provide sufficient risk
coverage and amounts, that they insure the property owner, and that they
properly describe the property address. The Seller shall furnish to the
Mortgagor a formal notice of expiration of any such insurance in sufficient
time
for the Mortgagor to arrange for renewal coverage by the expiration
date.
Pursuant
to Section 5.04, any amounts collected by the Seller under any such policies
(other than amounts to be deposited in the Escrow Account and applied to the
restoration or repair of the related Mortgaged Property, or property acquired
in
liquidation of the Mortgage Loan, or to be released to the Mortgagor, in
accordance with the Seller’s normal servicing procedures as specified in Section
5.15) shall be deposited in the Custodial Account subject to withdrawal pursuant
to Section 5.05.
Notwithstanding
anything set forth in the preceding paragraph, the Seller agrees to indemnify
the Purchaser for any claims, losses, damages, penalties, fines, forfeitures,
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
Mortgagor (or the Seller) to maintain hazard insurance or flood insurance with
respect to the related Mortgaged Property which complies with the requirements
of this section.
|
Section
5.12
|
Maintenance
of Mortgage Insurance.
|
In
the
event that the Seller shall obtain and maintain a blanket policy insuring
against losses arising from fire and hazards covered under extended coverage
on
all of the Mortgage Loans, then, to the extent such policy provides coverage
in
an amount equal to the amount required pursuant to Section 5.11 and otherwise
complies with all other requirements of Section 5.11, it shall conclusively
be
deemed to have satisfied its obligations as set forth in Section 5.11. Any
amounts collected by the Seller under any such policy relating to a Mortgage
Loan shall be deposited in the Custodial Account or Escrow Account subject
to
withdrawal pursuant to Sections 5.05 or 5.15. Such policy may contain a
deductible clause, in which case, in the event that there shall not have been
maintained on the related Mortgaged Property a policy complying with Section
5.11, and there shall have been a loss which would have been covered by such
policy, the Seller shall deposit in the Custodial Account at the time of such
loss the amount not otherwise payable under the blanket policy because of such
deductible clause, such amount to deposited from the Seller’s funds, without
reimbursement therefor. Upon request of any Purchaser, the Seller shall cause
to
be delivered to such Purchaser a certified true copy of such policy and a
statement from the insurer thereunder that such policy shall in no event be
terminated or materially modified without 30 days’ prior written notice to such
Purchaser.
-51-
|
Section
5.13
|
Maintenance
of Fidelity Bond and Errors and Omissions
Insurance.
|
The
Seller shall maintain with responsible companies, at its own expense, a blanket
Fidelity Bond and an Errors and Omissions Insurance Policy, with broad coverage
on all officers, employees or other Persons acting in any capacity requiring
such Persons to handle funds, money, documents or papers relating to the
Mortgage Loans (“Seller
Employees”).
Any
such Fidelity Bond and Errors and Omissions Insurance Policy shall be in the
form of the Mortgage Banker’s Blanket Bond and shall protect and insure the
Seller against losses, including forgery, theft, embezzlement, fraud, errors
and
omissions and negligent acts of such Seller Employees. Such Fidelity Bond and
Errors and Omissions Insurance Policy also shall protect and insure the Seller
against losses in connection with the release or satisfaction of a Mortgage
Loan
without having obtained payment in full of the indebtedness secured thereby.
No
provision of this Section 5.13 requiring such Fidelity Bond and Errors and
Omissions Insurance Policy shall diminish or relieve the Seller from its duties
and obligations as set forth in this Agreement. The minimum coverage under
any
such bond and insurance policy shall be at least equal to the corresponding
amounts required by Xxxxxx Xxx in the Xxxxxx Mae Guides or by Xxxxxxx Mac in
the
Xxxxxxx Mac Guides. Upon the request of the Purchaser, the Seller shall cause
to
be delivered to such Purchaser a certified true copy of such fidelity bond
and
insurance policy and a statement from the surety and the insurer that such
fidelity bond and insurance policy shall in no event be terminated or materially
modified without 30 days’ prior written notice to the Purchaser. Upon request of
the Purchaser, the Seller shall cause to be delivered to the Purchaser a
certified true copy of such policy and a statement from the insurer thereunder
that such policy shall in no event be terminated or materially modified without
30 days’ prior written notice to the Purchaser.
|
Section
5.14
|
Inspections.
|
The
Seller shall inspect the Mortgaged Property as often as deemed necessary by
the
Seller to assure itself that the value of the Mortgaged Property is being
preserved. In addition, if any Mortgage Loan is more than 45 days delinquent,
the Seller immediately shall inspect the Mortgaged Property and shall conduct
subsequent inspections in accordance with Accepted Servicing Practices or as
may
be required by the primary mortgage guaranty insurer. The Seller shall keep
a
written report of each such inspection.
-52-
|
Section
5.15
|
Restoration
of Mortgaged Property.
|
The
Seller need not obtain the approval of the Purchaser prior to releasing any
Insurance Proceeds or Condemnation Proceeds to the Mortgagor to be applied
to
the restoration or repair of the Mortgaged Property if such release is in
accordance with Accepted Servicing Practices. At a minimum, the Seller shall
comply with the following conditions in connection with any such release of
Insurance Proceeds or Condemnation Proceeds:
(i) the
Seller shall receive satisfactory independent verification of completion of
repairs and issuance of any required approvals with respect thereto;
(ii) the
Seller shall take all steps necessary to preserve the priority of the lien
of
the Mortgage, including, but not limited to requiring waivers with respect
to
mechanics’ and materialmen’s liens;
(iii) the
Seller shall verify that the Mortgage Loan is not in default; and
(iv) pending
repairs or restoration, the Seller shall place the Insurance Proceeds or
Condemnation Proceeds in the Escrow Account.
If
the
Purchaser is named as an additional loss payee, the Seller is hereby empowered
to endorse any loss draft issued in respect of such a claim in the name of
the
Purchaser.
|
Section
5.16
|
Maintenance
of PMI and/or LPMI Policy; Claims.
|
(a) The
Seller shall comply with all provisions of applicable state and federal law
relating to the cancellation of, or collection of premiums with respect to,
PMI
Policies, including, but not limited to, the provisions of the HomePurchasers
Protection Act of 1998, and all regulations promulgated thereunder, as amended
from time to time. The Seller shall be obligated to make premium payments with
respect to (i) LPMI Policies, to the extent of the LPMI Fee set forth on the
Mortgage Loan Schedule with respect to any LPMI Loans, which shall be paid
out
of the interest portion of the related Monthly Payment or, if a Monthly Payment
is not made, from the Seller’s own funds and (ii) PMI Policies required to be
maintained by the Mortgagor rather than the Purchaser, if the Mortgagor is
required but fails to pay any PMI Policy premium, which shall be paid from
the
Seller’s own funds. Any premium payments made by the Seller from its own funds
pursuant to this Section 5.16(a) shall be recoverable by the Seller as a
Servicing Advance, subject to the reimbursement provisions of Section 5.05.
With
respect to each Mortgage Loan (other than LPMI Loans) with a loan-to-value
ratio
at origination in excess of 80%, the Seller shall, without any cost to the
Purchaser, maintain or cause the Mortgagor to maintain (to the extent that
the
Mortgage Loan requires the Mortgagor to maintain such insurance) in full force
and effect a PMI Policy, and shall pay or shall cause the Mortgagor to pay
the
premium thereon on a timely basis, until the LTV of such Mortgage Loan is
reduced to 80%. In the event that such PMI Policy shall be terminated, the
Seller shall obtain from another Qualified Insurer a comparable replacement
policy, with a total coverage equal to the remaining coverage of such terminated
PMI Policy, at substantially the same fee level. The Seller shall not take
any
action which would result in noncoverage under any applicable PMI Policy of
any
loss which, but for the actions of the Seller would have been covered
thereunder. In connection with any assumption or substitution agreements entered
into or to be entered into with respect to a Mortgage Loan, the Seller shall
promptly notify the insurer under the related PMI Policy, if any, of such
assumption or substitution of liability in accordance with the terms of such
PMI
Policy and shall take all actions which may be required by such insurer as
a
condition to the continuation of coverage under such PMI Policy. If such PMI
Policy is terminated as a result of such assumption or substitution of
liability, the Seller shall obtain a replacement PMI Policy as provided
above.
-53-
(b) With
respect to each Mortgage Loan covered by a PMI Policy or LPMI Policy, the Seller
shall take all such actions on behalf of the Purchaser as are necessary to
service, maintain and administer the related Mortgage Loan in accordance with
such Policy and to enforce the rights under such Policy. Except as expressly
set
forth herein, the Seller shall have full authority on behalf of the Purchaser
to
do anything it deems appropriate or desirable in connection with the servicing,
maintenance and administration of such Policy; provided
that
the
Seller shall not take any action to permit any modification or assumption of
a
Mortgage Loan covered by a LPMI or PMI Policy, or take any other action with
respect to such Mortgage Loan, which would result in non-coverage under such
Policy of any loss which, but for actions of the Seller, would have been covered
thereunder. If the Qualified Insurer fails to pay a claim under a LPMI or PMI
Policy solely as a result of a breach by the Seller of its obligations hereunder
or under such Policy, the Seller shall be required to deposit in the Custodial
Account on or prior to the next succeeding Remittance Date an amount equal
to
such unpaid claim from its own funds without any rights to reimbursement from
the Purchaser; provided, that once the Seller has paid the amount of such unpaid
claim and the Purchaser has otherwise fully recovered all amounts due to the
Purchaser with respect to the Mortgage Loan, the Purchaser shall (at the
Seller’s cost and expense) cooperate with the Seller in permitting the Seller to
be subrogated to the rights of the Purchaser with respect to such Mortgage
Loan
to the same extent that the insurer would have been subrogated under the
applicable PMI Policy had such insurer not failed to pay such claim. The Seller
shall cooperate with the Qualified Insurers and shall furnish all reasonable
evidence and information in the possession of the Seller to which the Seller
has
access with respect to the related Mortgage Loan; provided,
however,
notwithstanding anything to the contrary contained in any LPMI Policy or PMI
Policy, the Seller shall not be required to submit any reports to the related
Qualified Insurer until a reporting date that is at least 15 days after the
Seller has received sufficient loan level information from each Purchaser to
appropriately code its servicing systems in accordance with the Qualified
Insurer’s requirements.
(c) In
connection with its activities as Seller, the Seller agrees to prepare and
present, on behalf of itself and the Purchaser, claims to the Qualified Insurer
under any PMI Policy or LPMI Policy in a timely fashion in accordance with
the
terms of such PMI Policy or LPMI Policy and, in this regard, to take such action
as shall be necessary to permit recovery under any PMI Policy or LPMI Policy
respecting a defaulted Mortgage Loan. Any amounts collected by the Seller under
any PMI Policy or LPMI Policy shall be deposited in the Custodial Account
pursuant to Section 5.04(xi), subject to withdrawal pursuant to Section
5.05(iv).
-54-
|
Section
5.17
|
Title,
Management and Disposition of REO
Property.
|
In
the
event that title to any Mortgaged Property is acquired in foreclosure or by
deed
in lieu of foreclosure, the deed or certificate of sale shall be taken in the
name of the Seller or such other name as the Purchaser should designate. The
Person or Persons holding such title other than the Purchaser shall acknowledge
in writing that such title is being held as nominee for the Purchaser’s
designee.
The
Seller shall manage, conserve, protect and operate each REO Property for the
Purchaser solely for the purpose of its prompt disposition and sale. The Seller,
either itself or through an agent selected by the Seller, shall manage,
conserve, protect and operate the REO Property in the same manner that it
manages, conserves, protects and operates other foreclosed property for its
own
account, and in the same manner that similar property in the same locality
as
the REO Property is managed. The Seller shall attempt to sell the same (and
may
temporarily rent the same for a period not greater than one year, except as
otherwise provided below) on such terms and conditions as the Seller deems
to be
in the best interest of the Purchaser.
The
Seller shall use its best efforts to dispose of the REO Property as soon as
possible and shall sell such REO Property in any event within three years after
title has been taken to such REO Property, not later than the end of the third
taxable year after the year of its acquisition unless (i) (A) a REMIC election
has not been made with respect to the arrangement under which the Mortgage
Loans
and the REO Property are held, and (ii) the Seller determines, and gives an
appropriate notice to the Purchaser to such effect, that a longer period is
necessary for the orderly liquidation of such REO Property. If a period longer
than three years is permitted under the foregoing sentence and is necessary
to
sell any REO Property, (i) the Seller shall report monthly to the Purchaser
as
to the progress being made in selling such REO Property and (ii) if, with the
written consent of the Purchaser, a purchase money mortgage is taken in
connection with such sale, such purchase money mortgage shall name the Seller
as
mortgagee, and such purchase money mortgage shall not be held pursuant to this
Agreement, but instead a separate participation agreement among the Seller
and
Purchaser shall be entered into with respect to such purchase money mortgage.
Notwithstanding
anything to the contrary contained in this Section 3.17, in connection with
a
foreclosure or acceptance of a deed in lieu of foreclosure, in the event the
Seller has reasonable cause to believe that a Mortgaged Property is contaminated
by hazardous or toxic substances or wastes, or if the Purchaser otherwise
requests, an environmental inspection or review of such Mortgaged Property
to be
conducted by a qualified inspector shall be arranged by the Seller. Upon
completion of the inspection, the Seller shall provide the Purchaser with a
written report of such environmental inspection. In the event that the
environmental inspection report indicates that the Mortgaged Property is
contaminated by hazardous or toxic substances or wastes, the Seller shall not
proceed with foreclosure or acceptance of a deed in lieu of foreclosure. In
the
event that the environmental inspection report is inconclusive as to the whether
or not the Mortgaged Property is contaminated by hazardous or toxic substances
or wastes, the Seller shall not, without the prior approval of the Purchaser,
proceed with foreclosure or acceptance of a deed in lieu of foreclosure. In
the
event the Purchaser or its designee directs the Seller not to proceed with
foreclosure or acceptance of a deed in lieu of foreclosure, the Seller shall
be
reimbursed for all Servicing Advances made with respect to the related Mortgaged
Property from the Custodial Account pursuant to Section 3.04 hereof.
-55-
Subject
to the approval of the Purchaser or its designee as described in this paragraph,
the disposition of REO Property shall be carried out by the Seller at such
price, and upon such terms and conditions, as the Seller deems to be in the
best
interests of the Purchaser. Prior to acceptance by the Seller of an offer to
sell any REO Property, the Seller shall notify the Purchaser or its designee
of
such offer in writing which notification shall set forth all material terms
of
said offer (each a “Notice of Sale”). The Purchaser or its designee shall be
deemed to have approved the sale of any REO Property unless the Purchaser or
its
designee notifies the Seller in writing, within 2 Business Days after its
receipt of the related Notice of Sale, that it disapproves of the related sale,
in which case the Seller shall not proceed with such sale.
The
Seller shall also maintain on each REO Property fire and hazard insurance with
extended coverage in amount which is at least equal to the maximum insurable
value of the improvements which are a part of such property, liability insurance
and, to the extent required and available under the Flood Disaster Protection
Act of 1973, as amended, flood insurance in the amount required above.
The
proceeds of sale of the REO Property shall be promptly deposited in the
Custodial Account. As soon as practical thereafter the expenses of such sale
shall be paid and the Seller shall reimburse itself for any related unreimbursed
Servicing Advances, unpaid Servicing Fees and unreimbursed advances made
pursuant to this Section or Section 5.03, and on the Remittance Date immediately
following the Principal Prepayment Period in which such sale proceeds are
received the net cash proceeds of such sale remaining in the Custodial Account
shall be distributed to the Purchaser.
The
Seller shall make advances of all funds necessary for the proper operation,
management and maintenance of the REO Property, including the cost of
maintaining any hazard insurance pursuant to Section 5.11, such advances to
be
reimbursed from the disposition or liquidation proceeds of the REO Property.
The
Seller shall make monthly distributions on each Remittance Date to the Purchaser
of the net cash flow from the REO Property (which shall equal the revenues
from
such REO Property net of the expenses described in this Section 5.17 and of
any
reserves reasonably required from time to time to be maintained to satisfy
anticipated liabilities for such expenses).
|
Section
5.18
|
Real
Estate Owned Reports.
|
Together
with the statement furnished pursuant to Section 6.02, the Seller shall furnish
to the Purchaser or its designee on or before the tenth (10th)
calendar day of each month a statement with respect to any REO Property covering
the operation of such REO Property for the previous month and the Seller’s
efforts in connection with the sale of such REO Property and any rental of
such
REO Property incidental to the sale thereof for the previous month. That
statement shall be accompanied by such other information as the Purchaser or
its
designee shall reasonably request.
-56-
|
Section
5.19
|
Liquidation
Reports.
|
Upon
the
foreclosure sale of any Mortgaged Property or the acquisition thereof by the
Purchaser pursuant to a deed in lieu of foreclosure, the Seller shall submit
to
the Purchaser a liquidation report with respect to such Mortgaged Property.
In
addition, the Seller shall provide the Purchaser or its designee a report of
Servicing Advances and other expenses in connection with the liquidation of
any
Mortgage Loan.
|
Section
5.20
|
Notification
of Adjustments.
|
With
respect to each ARM Mortgage Loan, the Seller shall adjust the Mortgage Interest
Rate on the related Interest Rate Adjustment Date in compliance with the
requirements of applicable law and the related Mortgage and Mortgage Note.
The
Seller 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 adjustments. The Seller shall promptly, upon written
request therefor, 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 Seller or the receipt
of
notice from the Purchaser that the Seller has failed to adjust a Mortgage
Interest Rate in accordance with the terms of the related Mortgage Note, the
Seller shall immediately deposit in the Custodial Account from its own funds
the
amount of any interest loss or deferral caused the Purchaser
thereby.
|
Section
5.21
|
Reports
of Foreclosures and Abandonments of
Mortgaged Property.
|
Following
the foreclosure sale or abandonment of any Mortgaged Property, the Seller shall
report such foreclosure or abandonment as required pursuant to Section 6050J
of
the Code.
|
Section
5.22
|
Prepayment
Charges.
|
Except
as
set forth below, the Seller or any designee of the Seller shall not waive any
prepayment charge with respect to any Mortgage Loan. Notwithstanding the above,
the Seller or its designee may waive a prepayment charge without paying to
the
Custodial Account the amount of such prepayment charge only if the related
prepayment is not the result of a refinancing by the Seller or its designee
and
such waiver (a) relates to a defaulted Mortgage Loan or a reasonably foreseeable
default, such waiver is standard and customary in servicing similar mortgage
loans to the Mortgage Loans, and such waiver, in the reasonable judgment of
the
Seller, would maximize recovery of total proceeds from the Mortgage Loan, taking
into account the amount of such prepayment charge and the related Mortgage
Loan,
or (b) relates to a prepayment charge the collection of which, in the reasonable
judgment of the Seller, would be a violation of applicable laws.
|
Section
5.23
|
Credit
Reporting.
|
For
each
Mortgage Loan, the Seller shall accurately and fully furnish, in accordance
with
the Fair Credit Reporting Act and its implementing regulations, accurate and
complete information (e.g., favorable and unfavorable) on its borrower credit
files to each of the following credit repositories: Equifax Credit Information
Services, Inc., Trans Union, LLC and Experian Information Solution, Inc., on
a
monthly basis.
-57-
|
Section
5.24
|
Safeguarding
Customer Information.
|
The
Seller shall implement and maintain security measures designed to meet the
objectives of the Interagency Guidelines Establishing Information Security
Standards (the “Guidelines”),
Section 216 of the Fair and Accurate Transactions Act (including its
implementing regulations, “FACTA”),
as
well as any amendments thereto or other applicable regulations regarding
safeguarding information enacted or released by a regulatory agency having
jurisdiction over the Purchaser or the Seller. In addition, the Seller
represents to the Purchaser that it has in place a response program to respond
to any incident of unauthorized access to Customer Information (as defined
in
the Guidelines). At all times during the term of this Agreement, the Seller
shall maintain administrative, technical and physical safeguards, including
proper information disposal procedures, to ensure the security, confidentiality
and integrity of Customer Information, and to protect such information against
any threats or hazards, including, without limitation, unauthorized access
or
use. The Seller will periodically (but not less than annually) review and update
its information security procedures.
The
Seller shall, at the Seller’s sole expense, take appropriate actions, including
such actions as the Purchaser may request, to address any actual or apparent
incident of theft or unauthorized access, use or disclosure of any Customer
Information maintained by the Seller, including providing prompt notification
to
the Purchaser of any such incident and will, at the Purchaser’s request, at the
Seller’s sole expense, notify the Purchaser’s customers on the Purchaser’s
behalf of any such unauthorized access, use or disclosure. Nothing in this
Section shall limit the Seller’s obligations under Section 8.04 of this
Agreement.
The
Seller shall promptly provide the Purchaser with information regarding such
information security measures upon the reasonable request of the Purchaser
or
its designee (including any Master Servicer of the Mortgage Loans) which
information shall include, but not be limited to, any Statement on Auditing
Standards (SAS) No. 70 report covering the Seller’s operations, and any other
audit reports, summaries of test results or equivalent measures or evaluations
taken by the Seller with respect to its security measures.
With
respect to any third party provided access to Customer Information in accordance
with this Agreement, the Seller will enter into a written agreement with such
third party requiring safeguarding of Customer Information in a manner no less
restrictive than the Seller’s obligations under this Agreement, and including
those affirmative obligations set forth in this Section and in any other Section
of this Agreement relating to the use or protection of Customer
Information.
The
obligations set forth in this Section shall survive termination of the
Agreement.
|
Section
5.25
|
PMI
Obligations.
|
The
Seller shall comply with all provisions of applicable state and federal law
relating to the cancellation of, or collection of premiums with respect to,
PMI
Policies, including, but not limited to, the provisions of the Homeowners
Protection Act of 1998, and all regulations promulgated thereunder, as amended
from time to time.
-58-
ARTICLE
VI
PAYMENTS
TO PURCHASER
|
Section
6.01
|
Remittances.
|
On
each
Remittance Date the Seller shall remit by wire transfer of immediately available
funds to the Purchaser: (a) all amounts deposited in the Custodial Account
as of
the close of business on the last day of the related Due Period (net of charges
against or withdrawals from the Custodial Account pursuant to Section 5.05),
plus (b) all amounts, if any, which the Seller is obligated to distribute
pursuant to Section 6.04, minus (c) any amounts attributable to Principal
Prepayments, Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds
or
REO Disposition Proceeds received after the applicable Due Period which amounts
shall be remitted on the following Remittance Date, together with any additional
interest required to be deposited in the Custodial Account in connection with
such Principal Prepayment in accordance with Section 5.04(xii), and minus (d)
any amounts attributable to Monthly Payments collected but due on a due date
or
dates subsequent to the first day of the month of the Remittance Date, which
amounts shall be remitted on the Remittance Date next succeeding the Due Date
related to such Monthly Payment.
With
respect to any remittance received by the Purchaser after the second Business
Day following the Business Day on which such payment was due, the Seller shall
pay to the Purchaser interest on any such late payment at an annual rate equal
to the Prime Rate, adjusted as of the date of each change, plus three percentage
points, but in no event greater than the maximum amount permitted by applicable
law. Such interest shall be deposited in the Custodial Account by the Seller
on
the date such late payment is made and shall cover the period commencing with
the day following such second Business Day and ending with the Business Day
on
which such payment is made, both inclusive. Such interest shall be remitted
along with the distribution payable on the next succeeding Remittance Date.
The
payment by the Seller of any such interest shall not be deemed an extension
of
time for payment or a waiver of any Event of Default by the Seller.
|
Section
6.02
|
Statements
to Purchaser.
|
Not
later
than the tenth (10th)
calendar day of each month, the Seller shall furnish to the Purchaser or its
designee (a)
a
monthly remittance advice in the format set forth in Exhibit
F-1
hereto
and a monthly defaulted loan report in the format set forth in Exhibit
F-2
hereto
(or in such other format mutually agreed to between the Seller and the
Purchaser) relating to the period ending on the last day of the preceding
calendar month and (b) all such information required pursuant to clause (a)
above on a magnetic tape or other similar media reasonably acceptable to the
Purchaser.
-59-
In
addition, not more than 60 days after the end of each calendar year, the Seller
shall furnish to each Person who was a Purchaser at any time during such
calendar year an annual statement in accordance with the requirements of
applicable federal income tax law as to the aggregate of remittances for the
applicable portion of such year.
Such
obligation of the Seller shall be deemed to have been satisfied to the extent
that substantially comparable information shall be provided by the Seller
pursuant to any requirements of the Internal Revenue Code as from time to time
are in force.
The
Seller shall prepare any and all tax returns, information statements or other
filings required to be delivered to any governmental taxing authority or to
any
Purchaser pursuant to any applicable law with respect to the Mortgage Loans
and
the transactions contemplated hereby. In addition, the Seller shall provide
each
Purchaser with such information concerning the Mortgage Loans as is necessary
for such Purchaser to prepare its federal income tax return as any Purchaser
may
reasonably request from time to time.
|
Section
6.03
|
Due
Dates Other Than the First of the
Month.
|
After
Reconstitution, Mortgage Loans having Due Dates other than the first day of
a
month, including Mortgage Loans permitting semi-annual amortization of
principal, shall be accounted for as described in this Section 6.03. Any payment
due on a day other than the first day of each month shall be considered due
on
the first day of the month following the month in which that payment is due
as
if such payment were due on the first day of said month. For example, a payment
due on August 15 shall be considered to be due on September 1. With respect
to a
Mortgage Note permitting semi-annual amortization of principal, the Seller
shall
be required to remit monthly scheduled principal and interest based on a monthly
amortization schedule. Any payment collected on a Mortgage Loan after each
Cut-off Date shall be deposited in the Custodial Account. For Mortgage Loans
with Due Dates on the first day of a month, deposits to the Custodial Account
begin with the payment due on the first of the month following each Cut-off
Date.
|
Section
6.04
|
Monthly
Advances by Seller.
|
The
Seller shall deposit in the Custodial Account on the Business Day immediately
preceding each Remittance Date, from its own funds or from amount held for
future distribution, or both, an amount equal to all Monthly Payments (with
interest adjusted to the Mortgage Loan Remittance Rate) which were due on the
Mortgage Loans during the applicable Due Period and which were delinquent at
the
close of business on the immediately preceding Determination Date or which
were
deferred pursuant to Section 6.01. Any amounts held for future distribution
and
so used shall be replaced by the Seller by deposit in the Custodial Account
on
or before any future Remittance Date if funds in the Custodial Account on such
Remittance Date shall be less than remittances to the Purchaser required to
be
made on such Remittance Date. The Seller’s obligation to make such Monthly
Advances as to any Mortgage Loan will continue through the last Monthly Payment
due prior to the payment in full of the Mortgage Loan, or through the last
Remittance Date prior to the Remittance Date for the distribution of all
Liquidation Proceeds and other payments or recoveries (including Insurance
Proceeds and Condemnation Proceeds) with respect to the Mortgage
Loan.
-60-
ARTICLE
VII
GENERAL
SERVICING PROCEDURES
|
Section
7.01
|
Transfers
of Mortgaged Property.
|
The
Seller shall use its best efforts to enforce any “due-on-sale” provision
contained in any Mortgage or Mortgage Note and to deny assumption by the person
to whom the Mortgaged Property has been or is about to be sold whether by
absolute conveyance or by contract of sale, and whether or not the Mortgagor
remains liable on the Mortgage and the Mortgage Note. When the Mortgaged
Property has been conveyed by the Mortgagor, the Seller shall, to the extent
it
has knowledge of such conveyance, exercise its rights to accelerate the maturity
of such Mortgage Loan under the “due-on-sale” clause applicable thereto,
provided, however, that the Seller shall not exercise such rights if prohibited
by law from doing so or if the exercise of such rights would impair or threaten
to impair any recovery under the related PMI Policy, if any.
If
the
Seller reasonably believes it is unable under applicable law to enforce such
“due-on-sale” clause, the Seller shall enter into (i) an assumption and
modification agreement with the person to whom such property has been conveyed,
pursuant to which such person becomes liable under the Mortgage Note and the
original Mortgagor remains liable thereon or (ii) in the event the Seller is
unable under applicable law to require that the original Mortgagor remain liable
under the Mortgage Note and the Seller has the prior consent of the primary
mortgage guaranty insurer, a substitution of liability agreement with the
purchaser of the Mortgaged Property pursuant to which the original Mortgagor
is
released from liability and the purchaser of the Mortgaged Property is
substituted as Mortgagor and becomes liable under the Mortgage Note. If an
assumption fee is collected by the Seller for entering into an assumption
agreement, a portion of such fee, up to an amount equal to one-half of one
percent (0.5%) of the outstanding principal balance of the related Mortgage
Loan, will be retained by the Seller as additional servicing compensation,
and
any portion thereof in excess of one-half of one percent (0.5%) shall be
deposited in the Custodial Account for the benefit of the Purchaser. In
connection with any such assumption, neither the Mortgage Interest Rate borne
by
the related Mortgage Note, the term of the Mortgage Loan nor the outstanding
principal amount of the Mortgage Loan shall be changed.
To
the
extent that any Mortgage Loan is assumable, the Seller shall inquire diligently
into the creditworthiness of the proposed transferee, and shall use the
underwriting criteria for approving the credit of the proposed transferee which
are used by the Seller with respect to underwriting mortgage loans of the same
type as the Mortgage Loans. If the credit of the proposed transferee does not
meet such underwriting criteria, the Seller diligently shall, to the extent
permitted by the Mortgage or the Mortgage Note and by applicable law, accelerate
the maturity of the Mortgage Loan.
|
Section
7.02
|
Satisfaction
of Mortgages and Release of Mortgage
Files.
|
Upon
the
payment in full of any Mortgage Loan, or the receipt by the Seller of a
notification that payment in full will be escrowed in a manner customary for
such purposes, the Seller shall notify the Purchaser in the Monthly Remittance
Advice as provided in Section 6.02, and may request the release of any
Mortgage Loan Documents from the Purchaser in accordance with this
Section 7.02.
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If
the
Seller satisfies or releases a Mortgage without first having obtained payment
in
full of the indebtedness secured by the Mortgage or should the Seller otherwise
prejudice any rights the Purchaser may have under the mortgage instruments,
the
Seller shall deposit into the Custodial Account the entire outstanding principal
balance, plus all accrued interest on such Mortgage Loan, on the day preceding
the Remittance Date in the month following the date of such release. The Seller
shall maintain the Fidelity Bond and Errors and Omissions Insurance Policy
as
provided for in Section 5.13 insuring the Seller against any loss it may
sustain with respect to any Mortgage Loan not satisfied in accordance with
the
procedures set forth herein.
|
Section
7.03
|
Servicing
Compensation.
|
As
consideration for servicing the Mortgage Loans subject to this Agreement, the
Seller shall retain the relevant Servicing Fee for each Mortgage Loan remaining
subject to this Agreement during any month or part thereof. Such Servicing
Fee
shall be payable monthly. Additional servicing compensation in the form of
Ancillary Income shall be retained by the Seller and is not required to be
deposited in the Custodial Account. The obligation of the Purchaser to pay
the
Servicing Fee is limited to, and the Servicing Fee is payable solely from,
the
interest portion (including recoveries with respect to interest from Liquidation
Proceeds) of such Monthly Payment collected by the Seller.
The
Seller shall be required to pay all expenses incurred by it in connection with
its servicing activities hereunder and shall not be entitled to reimbursement
thereof except as specifically provided for herein.
|
Section
7.04
|
Reserved.
|
|
Section
7.05
|
Annual
Statement as to Compliance.
|
The
Seller shall deliver using best reasonable efforts on or before March 1, but
in
no event later than March 15, of each calendar year, commencing in 2008, to
the
Purchaser and any Depositor a statement of compliance addressed to the Purchaser
and such Depositor and signed by an authorized officer of the Seller, to the
effect that (i) a review of the Seller’s activities as a servicer during the
immediately preceding calendar year (or applicable portion thereof) and of
its
performance under this Agreement and any applicable Reconstitution Agreement
during such period has been made under such officer’s supervision, and (ii) to
the best of such officers’ knowledge, based on such review, the Seller has
fulfilled all of its obligations under this Agreement and any applicable
Reconstitution Agreement in all material respects throughout such calendar
year
(or applicable portion thereof) or, if there has been a failure to fulfill
any
such obligation in any material respect, specifically identifying each such
failure known to such officer and the nature and the status
thereof.
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|
Section
7.06
|
Right
to Examine Seller Records.
|
The
Purchaser shall have the right to examine and audit any and all of the books,
records, or other information of the Seller, whether held by the Seller or
by
another on its behalf, with respect to or concerning this Agreement or the
Mortgage Loans, during business hours or at such other times as may be
reasonable under applicable circumstances, upon reasonable advance
notice.
The
Seller shall provide to the Purchaser and any supervisory agents or examiners
representing a state or federal governmental agency having jurisdiction over
the
Purchaser or the Master Servicer, including without limitation the OTS, the
FDIC
and other similar entities, access to any documentation regarding the Mortgage
Loans in the possession of the Seller that is required by any applicable
regulations. Such access shall be afforded without charge, upon reasonable
request, during normal business hours, at the offices of the Seller and in
accordance with any applicable regulations.
|
Section
7.07
|
Assessment
of Servicing Compliance.
|
(i)
On
or
before March 1 of each calendar year, commencing in 2008, the Seller
shall:
(A)
in
connection with this Agreement and each Reconstitution Agreement, deliver to
the
Purchaser and any Depositor a report regarding the Seller’s assessment of
compliance with the Servicing Criteria during the immediately preceding calendar
year, as required under Rules 13a-18 and 15d-18 of the Exchange Act and Item
1122 of Regulation AB. Such report shall be addressed to the Purchaser and
such
Depositor and signed by an authorized officer of the Seller, and shall address
each of the Servicing Criteria specified on Exhibit L hereto;
(B)in
connection with this Agreement and each Reconstitution Agreement, deliver to
the
Purchaser and any Depositor a report of a registered public accounting firm
that
attests to, and reports on, the assessment of compliance made by the Seller
and
delivered pursuant to the preceding paragraph. Such attestation shall be in
accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the
Securities Act and the Exchange Act;
(C)in
connection with each Reconstitution Agreement, cause each Subservicer and each
Subcontractor determined by the Seller pursuant to Section 7.08 to be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB (each, a “Participating Entity”), to deliver to the Purchaser and
any Depositor an assessment of compliance and accountants’ attestation as and
when provided in paragraphs (A) and (B) of this Section 7.07(i);
and
(D)in
connection with each Reconstitution Agreement, if requested by the Purchaser
or
any Depositor not later than February 1 of the calendar year in which such
certification is to be delivered, deliver to the Purchaser, any Depositor and
any other Person that will be responsible for signing the certification (a
“Sarbanes Certification”) required by Rules 13a-14(d) and 15d-14(d) under the
Exchange Act (pursuant to Section 302 of the Xxxxxxxx-Xxxxx Act of 2002) on
behalf of an asset-backed issuer with respect to a Securitization Transaction
a
certification in the form attached hereto as Exhibit K.
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The
Seller acknowledges that the parties identified in clause (i)(D) above may
rely
on the certification provided by the Seller pursuant to such clause in signing
a
Sarbanes Certification and filing such with the Commission.
The
Seller acknowledges that the parties identified in clause (i)(D) above may
rely
on the certification provided by the Seller pursuant to such clause in signing
a
Sarbanes Certification and filing such with the Commission. Neither the
Purchaser nor any Depositor will request delivery of a certification under
clause (i)(D) above unless a Depositor is required under the Exchange Act to
file an annual report on Form 10-K with respect to an issuing entity whose
asset
pool includes Mortgage Loans.
(ii) Each
assessment of compliance provided by a Subservicer pursuant to Section
7.01(i)(A) shall address each of the Servicing Criteria specified on Exhibit
L
hereto. An assessment of compliance provided by a Subcontractor pursuant to
Section 7.07(i)(C) need not address any elements of the Servicing Criteria
other
than those specified by the Seller pursuant to Section 7.08.
|
Section
7.08
|
Use
of Subservicers and
Subcontractors.
|
The
Seller shall not hire or otherwise utilize the services of any Subservicer
to
fulfill any of the obligations of the Seller as servicer under this Agreement
or
any Reconstitution Agreement unless the Seller complies with the provisions
of
paragraph (i) of this Section. The Seller shall not hire or otherwise utilize
the services of any Subcontractor, and shall not permit any Subservicer to
hire
or otherwise utilize the services of any Subcontractor, to fulfill any of the
obligations of the Seller as servicer under this Agreement or any Reconstitution
Agreement unless the Seller complies with the provisions of paragraph (ii)
of
this Section.
(i) The
Seller shall cause any Subservicer used by the Seller (or by any Subservicer)
for the benefit of the Purchaser and any Depositor to comply with the provisions
of this Section and with Sections 4.01(B), 8.01(e)(iii), 8.01(e)(v), 7.05,
7.07,
8.04(b) and 11.01 of this Agreement to the same extent as if such Subservicer
were the Seller, and to provide the information required with respect to such
Subservicer under Section 8.01(e)(iv) of this Agreement. The Seller shall be
responsible for obtaining from each Subservicer and delivering to the Purchaser
and any Depositor any servicer compliance statement required to be delivered
by
such Subservicer under Section 7.05, any assessment of compliance and
attestation required to be delivered by such Subservicer under Section 7.07
and
any certification required to be delivered to the Person that will be
responsible for signing the Sarbanes Certification under Section 7.07 as and
when required to be delivered.
(ii) The
Seller shall promptly upon request provide to the Purchaser and any Depositor
(or any designee of the Depositor, such as a master servicer or administrator)
a
written description (in form and substance satisfactory to the Purchaser and
such Depositor) of the role and function of each Subcontractor utilized by
the
Seller or any Subservicer, specifying (A) the identity of each such
Subcontractor, (B) which (if any) of such Subcontractors are Participating
Entities, and (C) which elements of the Servicing Criteria will be addressed
in
assessments of compliance provided by each Subcontractor identified pursuant
to
clause (B) of this paragraph.
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As
a
condition to the utilization of any Subcontractor determined to be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, the Seller shall cause any such Subcontractor used by the Seller
(or by any Subservicer) for the benefit of the Purchaser and any Depositor
to
comply with the provisions of Sections 7.07, 8.04(b) and 11.01 of this Agreement
to the same extent as if such Subcontractor were the Seller. The Seller shall
be
responsible for obtaining from each Subcontractor and delivering to the
Purchaser and any Depositor any assessment of compliance and attestation
required to be delivered by such Subcontractor under Section 7.07, in each
case
as and when required to be delivered.
The
Seller acknowledges that a Subservicer or Subcontractor that performs services
with respect to mortgage loans involved in a Securitization Transaction in
addition to the Mortgage Loans may be determined by a Depositor to be a
Participating Entity on the basis of the aggregate balance of such mortgage
loans, without regard to whether such Subservicer or Subcontractor would be
a
Participating Entity with respect to the Mortgage Loans viewed in isolation.
The
Seller shall (A) respond as promptly as practicable to any good faith request
by
the Purchaser or any Depositor for information regarding each Subservicer and
each Subcontractor and (B) cause each Subservicer and each Subcontractor with
respect to which the Purchaser or any Depositor requests delivery of an
assessment of compliance and accountants’ attestation to deliver such within the
time required under Section 7.07.
For
purposes of this Agreement, the Seller shall be deemed to have received payments
on Mortgage Loans immediately upon receipt by a subservicer of such payments.
Notwithstanding any subservicing agreement or the provisions of this Agreement
relating to agreements or arrangements between the Seller and a Subservicer
or
reference to actions taken through a Subservicer or otherwise, the Seller shall
remain obligated and primarily liable to the Purchaser for servicing and
administering of the Mortgage Loans in accordance with the provisions hereof
without diminution of such obligation or liability by virtue of such
subservicing agreements or arrangements or by virtue of indemnification from
a
Subservicer and to the same extent and under the same terms and conditions
as if
the Seller alone were servicing and administering the Mortgage Loans. All
actions of each Subservicer performed pursuant to the related subservicing
agreement shall be performed as an agent of the Seller with the same force
and
effect as if performed directly by the Seller and the Purchaser shall have
no
obligations, duties or liabilities with respect to any subservicer including
no
obligation, duty or liability of the Purchaser to pay any subservicer’s fees and
expenses. The Seller shall be entitled to enter into any agreement with each
subservicer for indemnification of the Seller by the subservicer and nothing
contained in this Agreement shall be deemed to limit or modify such
indemnification.
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ARTICLE
VIII
AGENCY
TRANSFER; SECURITIZATION
TRANSACTION
|
Section
8.01
|
Removal
of Mortgage Loans from Inclusion Under this Agreement Upon an Agency
Transfer, or a Securitization Transaction on One or More Reconstitution
Dates.
|
The
Purchaser and the Seller agree that with respect to some or all of the Mortgage
Loans, from time to time the Purchaser shall:
(1) Effect
an
Agency Transfer, and/or
(2) Effect
a
Whole Loan Transfer, and/or
(3) Effect
a
Securitization Transaction,
in
each
case retaining the Seller as the Seller thereof to service the Mortgage Loans
on
a “scheduled/scheduled” basis. On the related Reconstitution Date, the Mortgage
Loans transferred shall cease to be covered by this Agreement, except with
respect to the right of the Purchaser to cause a transfer of the servicing
responsibilities with respect to the Mortgage Loans in accordance with Section
8.02 hereof.
(a) The
Seller shall cooperate with the Purchaser in connection with any Agency
Transfer, Securitization Transaction or Whole Loan Transfer contemplated by
the
Purchaser pursuant to this Section 8.01. In that connection, the Seller shall:
(i) execute
any Reconstitution Agreement within a reasonable period of time after receipt
of
any Reconstitution Agreement which time shall be sufficient for the Seller
and
Seller’s counsel to review such Reconstitution Agreement, but such time shall
not exceed ten (10) days after such receipt; in the case of any Agency Transfer,
the Reconstitution Agreements shall be those customarily employed by Xxxxxx
Mae
or Xxxxxxx Mac for transactions of such nature. Such Reconstitution Agreement
may require the Seller to remit premium payments with respect to any LPMI Policy
to the related insurer;
(ii) cooperate
fully with the Purchaser, Xxxxxx Mae, Xxxxxxx Mac, the trustee or a third party
purchaser and any prospective purchaser, at the Purchaser’s expense, with
respect to all reasonable requests and due diligence procedures including
participating in meetings with rating agencies, Xxxxxx Mae, Xxxxxxx Mac, bond
insurers, guarantors, loss mitigation or credit risk management advisors and
such other parties as the Purchaser shall designate and participating in
meetings with prospective purchasers of the Mortgage Loans or interests therein
and providing information contained in the Mortgage Loan Schedule including
any
diskette or other related data tapes provided as reasonably requested by such
purchasers;
(iii) negotiate
and execute one or more loss mitigation advisory or credit risk management
agreements between the Seller and any loss mitigation or credit risk management
advisor designated by the Purchaser in its sole discretion;
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(iv) deliver
to the Purchaser and to any Person designated by the Purchaser (a) for inclusion
in any prospectus or other offering material such publicly available information
regarding the Seller, its financial condition and its mortgage loan delinquency,
foreclosure and loss experience and any additional information requested by
the
Purchaser, (b) any similar non-public, unaudited financial information (which
the Purchaser may, at its option and at its cost, have audited by certified
public accountants) and such other information as is reasonably requested by
the
Purchaser and which the Seller is capable of providing without unreasonable
effort or expense, and to indemnify the Purchaser and its affiliates for
material misstatements contained in such information, and (c) such statements
and audit letters of reputable, certified public accountants pertaining to
information provided by the Seller pursuant to clause (a) above as shall be
reasonably requested by the Purchaser;
(v) provide,
on an ongoing basis from information obtained through its servicing of the
Mortgage Loans, any information necessary to enable the “tax matters person” for
any REMIC in a Securitization Transaction, including any Master Servicer or
trustee acting in such capacity, to perform its obligations in accordance with
applicable law and customary secondary mortgage market standards for securitized
transactions;
(vi) negotiate
and execute all agreements executed in connection with such Agency Transfer,
Whole Loan Transfer or Securitization Transaction that govern the servicing
and
administration of the Mortgage Loans (and any agreements and other documents
incidental thereto) as the Purchaser shall reasonably request, provided that,
in
the case of a Whole Loan Transfer or Securitization Transaction, the servicing
provisions contained therein shall be substantially similar to those contained
in this Agreement and shall not contain any obligations materially more onerous
than those contained herein that increase the expenses or obligations of the
Seller, unless otherwise mutually agreed by the parties (provided,
that
each of the Seller and the Purchaser is given an opportunity to review and
reasonably negotiate in good faith the content of such documents not
specifically referenced or provided herein), which governing documents, in
the
case of a Securitization Transaction, shall contain provisions customarily
included in publicly issued or privately placed rated secondary mortgage market
transactions; in the case of any Agency Transfer, the Reconstitution Agreements
shall be those customarily employed by Xxxxxx Xxx, Xxxxxx Xxx or Xxxxxxx Mac
for
transactions of such nature;
(vii) negotiate
and execute one or more subservicing agreements between the Seller and any
master servicer which is generally considered to be a prudent master servicer
in
the secondary mortgage market designated by the Purchaser in its sole discretion
after consultation with the Seller and/or one or more custodial and servicing
agreements among the Purchaser or an Affiliate of the Purchaser, the Seller
and
a third party custodian/trustee which is generally considered to be a prudent
custodian/trustee in the secondary mortgage market designated by the Purchaser
in its sole discretion after consultation with the Seller, in either case for
the purpose of pooling the Mortgage Loans with other mortgage loans for resale
or securitization; and
(viii) deliver
to the Purchaser and to any Person designated by the Purchaser (a) for inclusion
in any prospectus or other offering material such publicly available information
regarding the Seller, its financial condition and its mortgage loan delinquency,
foreclosure and loss experience and any additional information requested by
the
Purchaser, (b) any similar non-public, unaudited financial information (which
the Purchaser may, at its option and at its cost, have audited by certified
public accountants) and such other information as is reasonably requested by
the
Purchaser and which the Seller is capable of providing without unreasonable
effort or expense, and to indemnify the Purchaser and its Affiliates for
material misstatements contained in such information, and (c) such statements
and audit letters of reputable, certified public accountants pertaining to
information provided by the Seller pursuant to clause (a) above as shall be
reasonably requested by the Purchaser.
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(b)
The
Seller shall provide to the Purchaser or issuer, as the case may be, and any
other participants in such Agency Transfer, Whole Loan Transfer or
Securitization Transaction, (i) any and all information with respect to itself,
its servicing portfolio or the Mortgage Loans and appropriate verification
of
information which may be reasonably available to the Seller, whether through
letters of its auditors and counsel or otherwise, as the Purchaser or any such
other participant shall request upon reasonable demand and (ii) such additional
representations, warranties, covenants, opinions of counsel, letters from
auditors, and certificates of public officials or officers of the Seller as
are
reasonably believed necessary by Xxxxxx Mae, Xxxxxxx Mac, the trustee, such
third party purchaser, any Master Servicer, any Rating Agency or the Purchaser,
as the case may be, in connection with such transactions.
(c) With
respect to any Mortgage Loans sold in a Securitization Transaction where the
Seller is the servicer, the Seller agrees that on or before February 28, 2008,
the Seller shall deliver to the depositor and the trustee, and their officers,
directors and affiliates, a certification in a form mutually agreed upon which
is substantially similar to that attached as Exhibit K hereto, executed by
the
senior officer in charge of servicing at the Seller for use in connection with
any Form 10-K to be filed with the Securities and Exchange Commission with
respect to the securitization trust so long as such certification is required
pursuant to the terms of the Xxxxxxxx-Xxxxx Act of 2002 as such may be in effect
and amended from time to time. The Seller shall indemnify and hold harmless
the
Person acting as depositor in the Securitization Transaction, the Person acting
as trustee in the Securitization transaction, the master servicer and their
respective 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 Seller’s obligations under this paragraph or any material
misstatement or omission, negligence, bad faith or willful misconduct of the
Seller in connection therewith. If the indemnification provided for in the
preceding sentence is unavailable or insufficient to hold harmless any
indemnified party, then the Seller agrees that it shall contribute to the amount
paid or payable by such indemnified party as a result of the losses, claims,
damages or liabilities of such indemnified party in such proportion as is
appropriate to reflect the relative fault of such indemnified party, on the
one
hand, and the Seller, on the other, in connection with a breach of the Seller’s
obligations under this paragraph or any material misstatement or omission,
negligence, bad faith or willful misconduct of the Seller in connection
therewith.
(d) To
the
extent required by the applicable Reconstitution Agreements or otherwise
requested by the Purchaser in connection with a Reconstitution, the Seller
shall
prepare Assignments of Mortgage in form and substance acceptable to Xxxxxx
Xxx,
Xxxxxxx Mac, the trustee or such third party, as the case may be, for each
Mortgage Loan that is part of a Reconstitution. The Seller shall execute each
Assignment of Mortgage, track such Assignments of Mortgage to ensure they have
been recorded and deliver them as required by Xxxxxx Mae, Xxxxxxx Mac, the
trustee or such third party, as the case may be, upon the Seller’s receipt
thereof. The Purchaser shall pay all pre-approved, reasonable and necessary
fees
associated with the preparation, recording and tracking of such Assignments
of
Mortgage.
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(e) In
connection with any Securitization Transaction the Seller shall (1) within
five
Business Days following request by the Purchaser or any Depositor, provide
to
the Purchaser and such Depositor (or, as applicable, cause each Third-Party
Originator and each Subservicer to provide), in writing and in form and
substance reasonably satisfactory to the Purchaser and such Depositor, the
information and materials specified in paragraphs (i), (ii), (iii) and (vi)
of
this Section 8.01(e), and (2) as promptly as practicable following notice to
or
discovery by the Seller, provide to the Purchaser and any Depositor (in writing
and in form and substance reasonably satisfactory to the Purchaser and such
Depositor) the information specified in paragraph (iv) of this Section 8.01(e).
(i) If
so
requested by the Purchaser or any Depositor, the Seller shall provide such
information regarding (x) the Seller, as originator of the Mortgage Loans
(including as an acquirer of Mortgage Loans from a Qualified Correspondent),
or
(y) each Third-Party Originator, and (z) as applicable, each Subservicer, as
is
requested for the purpose of compliance with Items 1103(a)(1), 1105, 1110,
1117
and 1119 of Regulation AB. Such information shall include, at a
minimum:
(A) the
originator’s form of organization;
(B) a
description of the originator’s origination program and how long the originator
has been engaged in originating residential mortgage loans, which description
shall include a discussion of the originator’s experience in originating
mortgage loans of a similar type as the Mortgage Loans; information regarding
the size and composition of the originator’s origination portfolio; and
information that may be material, in the good faith judgment of the Purchaser
or
any Depositor, to an analysis of the performance of the Mortgage Loans,
including the originators’ credit-granting or underwriting criteria for mortgage
loans of similar type(s) as the Mortgage Loans and such other information as
the
Purchaser or any Depositor may reasonably request for the purpose of compliance
with Item 1110(b)(2) of Regulation AB;
(C) a
description of any material legal or governmental proceedings pending (or known
to be contemplated) against the Seller, each Third-Party Originator and each
Subservicer; and
(D) a
description of any affiliation or relationship between the Seller, each
Third-Party Originator, each Subservicer and any of the following parties to
a
Securitization Transaction, as such parties are identified to the Seller by
the
Purchaser or any Depositor in writing in advance of such Securitization
Transaction:
(1) the
sponsor;
(2) the
depositor;
(3) the
issuing entity;
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(4) any
servicer;
(5) any
trustee;
(6) any
originator;
(7) any
significant obligor;
(8) any
enhancement or support provider; and
(9) any
other
material transaction party.
(ii) If
so
requested by the Purchaser or any Depositor, the Seller shall provide (or,
as
applicable, cause each Third-Party Originator to provide) Static Pool
Information with respect to the mortgage loans (of a similar type as the
Mortgage Loans, as reasonably identified by the Purchaser as provided below)
originated by (a) the Seller, if the Seller is an originator of Mortgage Loans
(including as an acquirer of Mortgage Loans from a Qualified Correspondent),
and/or (b) each Third-Party Originator. Such Static Pool Information shall
be
prepared by the Seller (or Third-Party Originator) on the basis of its
reasonable, good faith interpretation of the requirements of Item 1105(a)(1)-(3)
of Regulation AB. To the extent that there is reasonably available to the Co
Seller mpany (or Third-Party Originator) Static Pool Information with respect
to
more than one mortgage loan type, the Purchaser or any Depositor shall be
entitled to specify whether some or all of such information shall be provided
pursuant to this paragraph. The content of such Static Pool Information may
be
in the form customarily provided by the Seller, and need not be customized
for
the Purchaser or any Depositor. Such Static Pool Information for each vintage
origination year or prior securitized pool, as applicable, shall be presented
in
increments no less frequently than quarterly over the life of the mortgage
loans
included in the vintage origination year or prior securitized pool. The most
recent periodic increment must be as of a date no later than 135 days prior
to
the date of the prospectus or other offering document in which the Static Pool
Information is to be included or incorporated by reference. The Static Pool
Information shall be provided in an electronic format that provides a permanent
record of the information provided, such as a portable document format (pdf)
file, or other such electronic format reasonably required by the Purchaser
or
the Depositor, as applicable.
Promptly
following notice or discovery of a material error in Static Pool Information
provided pursuant to the immediately preceding paragraph (including an omission
to include therein information required to be provided pursuant to such
paragraph), the Seller shall provide corrected Static Pool Information to the
Purchaser or any Depositor, as applicable, in the same format in which Static
Pool Information was previously provided to such party by the
Seller.
If
so
requested by the Purchaser or any Depositor, the Seller shall provide (or,
as
applicable, cause each Third-Party Originator to provide), at the expense of
the
requesting party (to the extent of any additional incremental expense associated
with delivery pursuant to this Agreement), such agreed-upon procedures letters
of certified public accountants reasonably acceptable to the Purchaser or
Depositor, as applicable, pertaining
to Static Pool Information relating to prior securitized pools for
securitizations closed on or after January 1, 2006 or, in the case of Static
Pool Information with respect to the Seller’s or Third-Party Originator’s
originations or purchases, to calendar months commencing January 1,
2006,
as the
Purchaser or such Depositor shall reasonably request. Such letters shall be
addressed to and be for the benefit of such parties as the Purchaser or such
Depositor shall designate, which may include, by way of example, any Sponsor,
any Depositor and any broker dealer acting as underwriter, placement agent
or
initial purchaser with respect to a Securitization Transaction. Any such
statement or letter may take the form of a standard, generally applicable
document accompanied by a reliance letter authorizing reliance by the addressees
designated by the Purchaser or such Depositor.
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(iii) If
so
requested by the Purchaser or any Depositor, the Seller shall provide such
information regarding the Seller, as servicer of the Mortgage Loans, and each
Subservicer (each of the Seller and each Subservicer, for purposes of this
paragraph, a “Servicer”), as is requested for the purpose of compliance with
Item 1108 of Regulation AB. Such information shall include, at a
minimum:
(A) the
Servicer’s form of organization;
(B) a
description of how long the Servicer has been servicing residential mortgage
loans; a general discussion of the Servicer’s experience in servicing assets of
any type as well as a more detailed discussion of the Servicer’s experience in,
and procedures for, the servicing function it will perform under this Agreement
and any Reconstitution Agreements; information regarding the size, composition
and growth of the Servicer’s portfolio of residential mortgage loans of a type
similar to the Mortgage Loans and information on factors related to the Servicer
that may be material, in the good faith judgment of the Purchaser or any
Depositor, to any analysis of the servicing of the Mortgage Loans or the related
asset-backed securities, as applicable, including, without
limitation:
(1) whether
any prior securitizations of mortgage loans of a type similar to the Mortgage
Loans involving the Servicer have defaulted or experienced an early amortization
or other performance triggering event because of servicing during the three-year
period immediately preceding the related Securitization
Transaction;
(2) the
extent of outsourcing the Servicer utilizes;
(3) whether
there has been previous disclosure of material noncompliance with the applicable
servicing criteria with respect to other securitizations of residential mortgage
loans involving the Servicer as a servicer during the three-year period
immediately preceding the related Securitization Transaction;
(4) whether
the Servicer has been terminated as servicer in a residential mortgage loan
securitization, either due to a servicing default or to application of a
servicing performance test or trigger; and
(5) such
other information as the Purchaser or any Depositor may reasonably request
for
the purpose of compliance with Item 1108(b)(2) of Regulation AB;
(C) a
description of any material changes during the three-year period immediately
preceding the related Securitization Transaction to the Servicer’s policies or
procedures with respect to the servicing function it will perform under this
Agreement and any Reconstitution Agreements for mortgage loans of a type similar
to the Mortgage Loans;
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(D) information
regarding the Servicer’s financial condition, to the extent that there is a
material risk that an adverse financial event or circumstance involving the
Servicer could have a material adverse effect on the performance by the Seller
of its servicing obligations under this Agreement or any Reconstitution
Agreement;
(E) information
regarding advances made by the Servicer on the Mortgage Loans and the Servicer’s
overall servicing portfolio of residential mortgage loans for the three-year
period immediately preceding the related Securitization Transaction, which
may
be limited to a statement by an authorized officer of the Servicer to the effect
that the Servicer has made all advances required to be made on residential
mortgage loans serviced by it during such period, or, if such statement would
not be accurate, information regarding the percentage and type of advances
not
made as required, and the reasons for such failure to advance;
(F) a
description of the Servicer’s processes and procedures designed to address any
special or unique factors involved in servicing loans of a similar type as
the
Mortgage Loans;
(G) a
description of the Servicer’s processes for handling delinquencies, losses,
bankruptcies and recoveries, such as through liquidation of mortgaged
properties, sale of defaulted mortgage loans or workouts; and
(H) information
as to how the Servicer defines or determines delinquencies and charge-offs,
including the effect of any grace period, re-aging, restructuring, partial
payments considered current or other practices with respect to delinquency
and
loss experience.
(iv) If
so
requested by the Purchaser or any Depositor for the purpose of satisfying its
reporting obligation under the Exchange Act with respect to any class of
asset-backed securities, the Seller shall (or shall cause each Subservicer
and
Third-Party Originator to) (a) notify the Purchaser and any Depositor in writing
of (1) any material litigation or governmental proceedings pending against
the
Seller, any Subservicer or any Third-Party Originator and (2) any affiliations
or relationships that develop following the closing date of a Securitization
Transaction between the Seller, any Subservicer or any Third-Party Originator
and any of the parties specified in clause (D) of paragraph (i) of this Section
8.01(e) (and any other parties identified in writing by the requesting party)
with respect to such Securitization Transaction, and (b) provide to the
Purchaser and any Depositor a description of such proceedings, affiliations
or
relationships.
(v) As
a
condition to the succession to the Seller or any Subservicer as servicer or
subservicer under this Agreement or any Reconstitution Agreement by any Person
(i) into which the Seller or such Subservicer may be merged or consolidated,
or
(ii) which may be appointed as a successor to the Seller or any Subservicer,
the
Seller shall provide to the Purchaser and any Depositor, at least 15 calendar
days prior to the effective date of such succession or appointment, (x) written
notice to the Purchaser and any Depositor of such succession or appointment
and
(y) in writing and in form and substance reasonably satisfactory to the
Purchaser and such Depositor, all information reasonably requested by the
Purchaser or any Depositor in order to comply with its reporting obligation
under Item 6.02 of Form 8-K with respect to any class of asset-backed
securities.
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(vi) In
addition to such information as the Seller, as servicer, is obligated to provide
pursuant to other provisions of this Agreement, if so requested by the Purchaser
or any Depositor, the Seller shall provide such information regarding the
performance or servicing of the Mortgage Loans as is reasonably required to
facilitate preparation of distribution reports in accordance with Item 1121
of
Regulation AB. Such information shall be provided concurrently with the monthly
reports otherwise required to be delivered by the servicer under this Agreement,
commencing with the first such report due not less than ten Business Days
following such request.
All
Mortgage Loans not sold or transferred pursuant to an Agency Transfer,
Securitization Transaction or Whole Loan Transfer and any and all Mortgage
Loans
repurchased by the Purchaser pursuant to Section 8.03 below with respect to
an
Agency Transfer, Securitization Transaction or Whole Loan 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.
(f) The
Purchaser shall indemnify the Seller and its Affiliates and the respective
directors, officers, employees and agents of each of the foregoing, 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 (1) any untrue statement of a material fact contained or alleged
to be contained in any offering materials related to a Securitization
Transaction, including without limitation the registration statement,
prospectus, prospectus supplement, any private placement memorandum, any
offering circular, any computational materials, and any amendments or
supplements to the foregoing (collectively, the “Securitization Materials”) or
(2) the omission or alleged omission to state in the Securitization Materials
a
material fact required to be stated in the Securitization Materials or necessary
in order to make the statements therein, in the light of the circumstances
under
which they were made, not misleading, but only to the extent that such untrue
statement or alleged untrue statement or omission or alleged omission is other
than a statement or omission arising out of, resulting from, or based upon
the
Seller Information.
|
Section
8.02
|
Transfer
of Servicing Following Reconstitution.
|
Following
a Reconstitution of Mortgage Loans, the Purchaser or its designee (which may
include the Master Servicer, trustee, insurer, guarantor or certificateholders)
shall have the right, in its sole discretion, to cause the Seller at any time
under any Reconstitution Agreement to transfer the servicing responsibilities
and duties with respect to some or all of the Mortgage Loans serviced thereunder
to the Purchaser or any designee of the Purchaser; provided, however, that
the
Purchaser shall provide the Seller with 30 days prior written notice and shall
pay to the Seller a termination fee identical to the “termination without cause
fee” structure set forth in Section 11.02, provided further that such transfer
shall be subject to the approval of Xxxxxx Xxx or Xxxxxxx Mac, as the case
may
be, with respect to Agency Transfers, the trustee, Master Servicer or Rating
Agencies with respect to Securitization Transactions or any relevant third
party
purchaser with respect to Whole Loan Transfers. No termination fee shall be
paid
or payable for any Mortgage Loans with respect to which any payment is more
than
90 days past due as of the date of such termination. The Seller agrees to
cooperate
with the Purchaser in such transfer of servicing responsibilities and shall
comply with the termination procedures set forth in Sections 10.01 and 12.01
hereof.
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|
Section
8.03
|
Purchaser’s
Repurchase and Indemnification Obligations.
|
Upon
receipt by the Seller of notice from Xxxxxx Mae, Xxxxxxx Mac or other such
third
party purchaser of a breach of any Purchaser representation or warranty
contained in any Reconstitution Agreement or a request
by Xxxxxx Mae, Xxxxxxx Mac, the trustee or such third party purchaser, as the
case may be, for the repurchase of any Mortgage Loan transferred to Xxxxxx
Mae
or Xxxxxxx Mac pursuant to an Agency Transfer or to a trustee pursuant to a
Securitization Transaction or to a third party purchaser pursuant to a Whole
Loan Transfer, the Seller shall promptly notify the Purchaser of same and shall,
at the direction of the Purchaser, use its best efforts to cure and correct
any
such breach and to satisfy the requests or concerns of Xxxxxx Mae, Xxxxxxx
Mac,
the trustee or the third party purchaser related to such deficiencies of the
related Mortgage Loans transferred to Xxxxxx Mae, Xxxxxxx Mac, the trustee
or
other such third party purchaser.
The
Purchaser shall repurchase from the Seller any Mortgage Loan transferred to
Xxxxxx Mae or Xxxxxxx Mac pursuant to an Agency Transfer or to a trustee
pursuant to a Securitization Transaction or to a third party purchaser pursuant
to a Whole Loan Transfer with respect to which the Seller has been required
by
Xxxxxx Mae, Xxxxxxx Mac, the trustee or such third party purchaser to repurchase
due to a breach of a representation or warranty made by the Purchaser with
respect to the Mortgage Loans, or the servicing thereof prior to the related
Closing Date to Xxxxxx Mae, Xxxxxxx Mac, the trustee or any third party
purchaser in any Reconstitution Agreement and not due to a breach of the
Seller’s obligations thereunder or pursuant to this Agreement. The repurchase
price to be paid by the Purchaser to the Seller shall equal that repurchase
price paid by the Seller to Xxxxxx Mae, Xxxxxxx Mac, or the third party
purchaser plus all reasonable costs and expenses borne by the Seller in
connection with the cure of said breach of a representation or warranty made
by
the Purchaser and in connection with the repurchase of such Mortgage Loan from
Xxxxxx Mae, Xxxxxxx Mac, the trustee or the third party purchaser, including,
but not limited to, reasonable and necessary attorneys’ fees.
At
the
time of repurchase, the Custodian and the Seller shall arrange for the
reassignment of the repurchased Mortgage Loan to the Purchaser according to
the
Purchaser’s instructions and the delivery to the Custodian of any documents held
by Xxxxxx Mae, Xxxxxxx Mac, the trustee or other relevant third party purchaser
with respect to the repurchased Mortgage Loan pursuant to the related
Reconstitution Agreement. In the event of a repurchase, the Seller shall,
simultaneously with such reassignment, give written notice to the Purchaser
that
such repurchase has taken place, and amend the Mortgage Loan Schedule to reflect
the addition of the repurchased Mortgage Loan to this Agreement. In connection
with any such addition, the Seller and the Purchaser shall be deemed to have
made as to such repurchased 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
repurchase.
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|
Section
8.04
|
Indemnification;
Third Party Claims.
|
(a) 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 and service the
Mortgage Loans in strict compliance with the terms of this Agreement or any
Reconstitution Agreement entered into pursuant to Section 8.01. The Seller
shall
immediately notify the Purchaser if a claim is made by a third party with
respect to this Agreement or any Reconstitution Agreement or the Mortgage Loans,
shall promptly notify Xxxxxx Mae, Xxxxxxx Mac, the trustee or other relevant
third party with respect
to any claim made by a third party with respect to any Reconstitution Agreement,
assume (with the prior written consent of the Purchaser) the defense of any
such
claim and pay all expenses in connection therewith, including counsel fees,
promptly pay, discharge and satisfy any judgment or decree which may be entered
against it or the Purchaser in respect of such claim and follow any written
instructions received from the Purchaser in connection with such claim. The
Seller agrees that it will not enter into any settlement of any such claim
without the consent of the Purchaser unless such settlement includes an
unconditional release of the Purchaser from all liability that is the subject
matter of such claim. In addition to the obligations of the Seller set forth
in
this Section, the Purchaser may pursue any and all remedies otherwise available
at law or in equity, including, but not limited to, the right to seek damages.
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 failure of the Seller to service and administer the Mortgage Loans in
strict compliance with the terms of this Agreement or any Reconstitution
Agreement. In
the
event a dispute arises between the Seller and the Purchaser with respect to
any
of the rights and obligations of the parties pursuant to this Agreement, and
such dispute is adjudicated in a court of law, by an arbitration panel or any
other judicial process, then the losing party shall indemnify and reimburse
the
winning party for all attorney’s fees and other costs and expenses related to
the adjudication of said dispute.
The
obligations of the Seller arising under this Section shall survive any sale,
assignment, resignation or termination of the Seller, or the termination of
this
Agreement.
(b)
The
Seller
shall
indemnify the Purchaser, each affiliate of the Purchaser, and each of the
following parties participating
in a Securitization Transaction: each
sponsor and issuing entity; each Person responsible for the preparation,
execution or filing of any report required to be filed with the Commission
with
respect to such Securitization Transaction, or for execution of a certification
pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect
to such Securitization Transaction; each broker dealer acting as underwriter,
placement agent or initial purchaser,
each
Person who controls any of such parties or the Depositor (within
the meaning of Section 15 of the Securities Act and Section 20 of the Exchange
Act);
and the
respective present and former directors, officers, employees and agents of
each
of the foregoing and of the Depositor, and shall hold each of them harmless
from
and against any losses, damages, penalties, fines, forfeitures, legal fees
and
expenses and related costs, judgments, and any other costs, fees and expenses
that any of them may sustain arising out of or based upon:
(i)(A) any
untrue statement of a material fact contained or alleged to be contained in
any
information, report, certification, accountants’ letter or other
material
provided
under
this Agreement
by or on
behalf of the Seller,
or provided under this Agreement by or on behalf of any Subservicer,
Subcontractor or Third-Party Originator (collectively, the “Seller Information”),
or (2)
the omission or alleged omission to state in the Seller
Information a material fact required to be stated in the Seller
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 (2) of this paragraph shall be construed solely by reference to the
Seller
Information and not to any other information communicated in connection with
a
sale or purchase of securities, without regard to whether the Seller
Information or any portion thereof is presented together with or separately
from
such other information;
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(ii) any
failure by the Seller,
any
Subservicer, any Subcontractor or any Third-Party
Originator to deliver any information, report, certification, accountants’
letter or other material when and as required under this Agreement, including
any failure by the Seller to
identify pursuant to Section 7.08(ii) any Subcontractor “participating in the
servicing function” within the meaning of Item 1122 of Regulation AB;
or
(iii) any
breach by the Seller of
a
representation or warranty set forth in Section 4.01(B)(i) or in a writing
furnished pursuant to Section 4.01(B)(ii) and made as of a date prior to the
closing date of the related Securitization Transaction, to the extent that
such
breach is not cured by such closing date, or any breach by the
Seller of
a
representation or warranty in a writing furnished pursuant to Section
4.01(B)(ii) to the extent made as of a date subsequent to such closing
date.
In
the
case of any failure of performance described in clause (B) of this Section
8.04(b), the Seller
shall
promptly reimburse the Purchaser, any Depositor, as applicable, and each Person
responsible for the preparation, execution or filing of any report required
to
be filed with the Commission with respect to such Securitization Transaction,
or
for execution of a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d)
under the Exchange Act with respect to such Securitization Transaction, for
all
costs reasonably incurred by each such party in order to obtain the information,
report, certification, accountants’ letter or other material not delivered as
required by the Seller, any
Subservicer, any Subcontractor or any Third-Party
Originator.
|
Section
8.05
|
Transfer
Of Servicing.
|
In
the
event that the Seller’s duties, responsibilities and liabilities under this
Agreement should be terminated pursuant to the provisions of this Agreement,
the
Seller shall discharge such duties and responsibilities during the period from
the date it acquires knowledge of such termination until the effective date
thereof with the same degree of diligence and prudence which it is obligated
to
exercise under this Agreement, and shall take no action whatsoever that might
impair or prejudice the rights or financial condition of its successor. The
resignation or removal of the Seller pursuant to the aforementioned sections
shall not become effective until a successor shall be appointed by the
Purchaser. The Seller shall deliver promptly to the successor Seller the funds
in the Custodial Account and Escrow Account and all Servicing Files and related
documents and statements held by it hereunder and the Seller shall account
for
all funds and shall execute and deliver such instruments and do such other
things as may reasonably be required to more fully and definitively vest in
the
successor all such rights, powers, duties, responsibilities, obligations and
liabilities of the Seller.
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ARTICLE
IX
THE
SELLER
|
Section
9.01
|
Merger
or Consolidation of the Seller.
|
The
Seller shall keep in full effect its existence, rights and franchises as a
corporation, and shall obtain and preserve its qualification to do business
as a
foreign corporation in each jurisdiction in which such qualification is or
shall
be necessary to protect the validity and enforceability of this Agreement or
any
of the Mortgage Loans and to perform its duties under this
Agreement.
Any
person into which Seller may be merged or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Seller
shall
be a party, or any Person succeeding to the business of the Seller, shall be
the
successor of the Seller hereunder, without the execution or filing of any paper
or any further act on the part of any of the parties hereto, anything herein
to
the contrary notwithstanding, provided, however, that the successor or surviving
Person shall be an institution (i) having a net worth of not less than
$15,000,000, (ii) whose deposits are insured by the FDIC through BIF or SAIF
and
(iii) which is a Xxxxxx Xxx- and Xxxxxxx Mac-approved servicer in good
standing.
|
Section
9.02
|
Limitation
on Liability of Seller and
Others.
|
Neither
the Seller nor any of the directors, officers, employees or agents of the Seller
shall be under any liability to the Purchaser for any action taken or for
refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment, provided, however, that this provision
shall not protect the Seller or any such Person against any Breach of warranties
or representations made herein, or failure to perform its obligations in strict
compliance with any standard of care set forth in this Agreement, or any
liability which would otherwise be imposed by reason of any breach of the terms
and conditions of this Agreement. The Seller and any director, officer, employee
or agent of the Seller may rely in good faith on any document of any kind prima
facie properly executed and submitted by any Person respecting any matters
arising hereunder. The Seller shall not be under any obligation to appear in,
prosecute or defend any legal action which is not incidental to its duties
to
service the Mortgage Loans in accordance with this Agreement and which in its
opinion may involve it in any expense or liability, provided, however, that
the
Seller may, with the consent of the Purchaser, undertake any such action which
it may deem necessary or desirable in respect to this Agreement and the rights
and duties of the parties hereto. In such event, the Seller shall be entitled
to
reimbursement from the Purchaser of the reasonable legal expenses and costs
of
such action.
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|
Section
9.03
|
Limitation
on Resignation and Assignment by
Seller.
|
The
Purchaser has entered into this Agreement with the Seller and subsequent
Purchasers will purchase the Mortgage Loans in reliance upon the independent
status of the Seller, and the representations as to the adequacy of its
servicing facilities, plant, personnel, records and procedures, its integrity,
reputation and financial standing, and the continuance thereof. Therefore,
the
Seller shall neither assign this Agreement or the servicing hereunder or
delegate its rights or duties hereunder or any portion hereof (to other than
a
third party in the case of outsourcing routine tasks such as taxes, insurance,
mortgage release and property inspection, in which case the Seller shall be
fully liable for such tasks as if the Seller performed them itself) or sell
or
otherwise dispose of all or substantially all of its property or assets without
the prior written consent of the Purchaser, which consent shall be granted
or
withheld in the reasonable discretion of the Purchaser.
The
Seller shall not resign from the obligations and duties hereby imposed on it
except by mutual consent of the Seller and the Purchaser or upon the
determination that its duties hereunder are no longer permissible under
applicable law and such incapacity cannot be cured by the Seller. Any such
determination permitting the resignation of the Seller shall be evidenced by
an
Opinion of Counsel to such effect delivered to the Purchaser which Opinion
of
Counsel shall be in form and substance acceptable to the Purchaser. No such
resignation shall become effective until a successor shall have assumed the
Seller’s responsibilities and obligations hereunder in the manner provided in
Section 12.01.
Without
in any way limiting the generality of this Section 9.03, in the event that
the
Seller either shall assign this Agreement or the servicing responsibilities
hereunder or delegate its duties hereunder or any portion thereof (to other
than
a third party in the case of outsourcing routine tasks such as taxes, insurance,
mortgage release and property inspection, in which case the Seller shall be
fully liable for such tasks as if the Seller performed them itself) or sell
or
otherwise dispose of all or substantially all of its property or assets, without
the prior written consent of the Purchaser, then the Purchaser shall have the
right to terminate this Agreement upon notice given as set forth in Section
10.01, without any payment of any penalty or damages and without any liability
whatsoever to the Seller or any third party.
|
Section
9.04
|
Limitation
on Assignment by the Seller.
|
This
Agreement shall not be assigned, pledged or hypothecated by the Seller to a
third party without the prior written consent of the Purchaser, which consent
shall be granted or withheld in the sole discretion of the
Purchaser.
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ARTICLE
X
DEFAULT
|
Section
10.01
|
Events
of Default.
|
Each
of
the following shall constitute an Event of Default on the part of the
Seller:
(a) any
failure by the Seller to remit to the Purchaser any payment required to be
made
under the terms of this Agreement which continues unremedied for a period of
one
Business Day after the date upon which written notice of such failure, requiring
the same to be remedied, shall have been given to the Seller by the Purchaser;
or
(b) failure
by the Seller duly to observe or perform in any material respect any other
of
the covenants or agreements on the part of the Seller set forth in this
Agreement or in the Custodial Agreement which continues unremedied for a period
of 15 days after the date on which written notice of such failure, requiring
the
same to be remedied, shall have been given to the Seller by the Purchaser
provided, however, that any notice, grace period or other remedy period with
respect to the failure by the Seller duly to observe or perform any of the
covenants or agreements herein related to Regulation AB shall be set forth
solely in Sections 11.01(A) and (B); or
(c) failure
by the Seller to maintain its license to do business or service residential
mortgage loans in any jurisdiction where the Mortgaged Property is located;
or
(d) a
decree
or order of a court or agency or supervisory authority having jurisdiction
for
the appointment of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, including bankruptcy, marshaling of assets and liabilities
or similar proceedings, or for the winding-up or liquidation of its affairs,
shall have been entered against the Seller and such decree or order shall have
remained in force undischarged or unstayed for a period of 60 days;
or
(e) the
Seller shall consent to the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings of or relating to the Seller or of or
relating to all or substantially all of its property; or
(f) the
Seller shall admit in writing its inability to pay its debts generally as they
become due, file a petition to take advantage of any applicable insolvency,
bankruptcy or reorganization statute, make an assignment for the benefit of
its
creditors, voluntarily suspend payment of its obligations or cease its normal
business operations for three Business Days; or
(g) the
Seller ceases to meet the qualifications of a Xxxxxx Xxx or Xxxxxxx Mac
servicer; or
(h) the
Seller fails to maintain a minimum net worth of $25,000,000; or
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(i) the
Seller attempts to assign its right to servicing compensation hereunder or
attempts without the consent of the Purchaser to assign this Agreement or the
servicing responsibilities hereunder or to delegate its duties hereunder or
any
portion thereof (to other than a third party in the case of outsourcing routine
tasks such as taxes, insurance, mortgage release and property inspection, in
which case the Seller shall be fully liable for such tasks as if the Seller
performed them itself) in violation of Section 9.04; or
(j) if
(x)
after a Reconstitution in a Securitization Transaction, any of the Rating
Agencies reduces or withdraws the rating of any of the certificates issued
by a
securitization trust that owns the Mortgage Loans due to a reason attributable
to the Seller or (y) the Seller’s residential primary servicer rating for
servicing of mortgage loans of the same type as the Mortgage Loans issued by
any
of the Rating Agencies is reduced below its rating in effect on the related
Closing Date or withdrawn; or
(k) the
Seller attempts, without the consent of the Purchaser, to sell or otherwise
dispose of all or substantially all of its property or assets.
In
each
and every such case, so long as an Event of Default shall not have been
remedied, in addition to whatsoever rights the Purchaser may have at law or
equity to damages, including injunctive relief and specific performance, the
Purchaser, by notice in writing to the Seller, (i) may terminate all the rights
and obligations of the Seller under this Agreement and in and to the Mortgage
Loans and the proceeds thereof, and (ii) may terminate any commitment the
Purchaser has entered into to purchase additional Mortgage Loans from the Seller
hereunder.
Upon
receipt by the Seller of such written notice, all authority and power of the
Seller under this Agreement, whether with respect to the Mortgage Loans or
otherwise, shall pass to and be vested in the successor appointed pursuant
to
Section 12.01. Upon written request from any Purchaser, the Seller shall
prepare, execute and deliver to the successor entity designated by the Purchaser
any and all documents and other instruments, place in such successor’s
possession all Mortgage Files, and do or cause to be done all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, including but not limited to the transfer and endorsement or
assignment of the Mortgage Loans and related documents, at the Seller’s sole
expense. The Seller shall cooperate with the Purchaser and such successor in
effecting the termination of the Seller’s responsibilities and rights hereunder,
including without limitation, the transfer to such successor for administration
by it of all cash amounts which shall at the time be credited by the Seller
to
the Custodial Account or Escrow Account or thereafter received with respect
to
the Mortgage Loans.
|
Section
10.02
|
Waiver
of Defaults.
|
By
a
written notice, the Purchaser may waive any default by the Seller in the
performance of its obligations hereunder and its consequences. Upon any waiver
of a past default, such default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been remedied for every purpose of
this Agreement. No such waiver shall extend to any subsequent or other default
or impair any right consequent thereon except to the extent expressly so
waived.
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ARTICLE
XI
TERMINATION
|
Section
11.01
|
Termination.
|
This
Agreement shall terminate upon the earlier of : (i) the later of the final
payment or other liquidation (or any advance with respect thereto) of the last
Mortgage Loan or the disposition of any REO Property with respect to the last
Mortgage Loan and the remittance of all funds due hereunder and (ii) the
exercise of the Purchaser’s right pursuant to Section 10.01 to terminate this
Agreement upon an Event of Default. All representations, warranties, rights
to
audits, indemnity obligations, and other remedies available to the Purchaser
under this Agreement, at law or in equity, will survive the termination of
this
Agreement.
(A) Any
failure by the Seller, any Subservicer, any Subcontractor or any Third-Party
Originator to deliver any information, report, certification, accountants’
letter or other material when and as required under this Agreement, or any
breach by the Seller of a representation or warranty set forth in Section
4.01(B)(i) or in a writing furnished pursuant to Section 4.01(B)(ii) and made
as
of a date prior to the closing date of the related Securitization Transaction,
to the extent that such breach is not cured by such closing date, or any breach
by the Seller of a representation or warranty in a writing furnished pursuant
to
Section 4.01(B)(ii) to the extent made as of a date subsequent to such closing
date, shall, except as provided in clause (B) of this Section 11.01, immediately
and automatically, without notice or grace period, constitute an Event of
Default with respect to the Seller under this Agreement and any applicable
Reconstitution Agreement, and shall entitle the Purchaser or Depositor, as
applicable, in its sole discretion to terminate the rights and obligations
of
the Seller as servicer under this Agreement and/or any applicable Reconstitution
Agreement without payment (notwithstanding anything in this Agreement or any
applicable Reconstitution Agreement to the contrary) of any compensation to
the
Seller; provided
that to
the extent that any provision of this Agreement and/or any applicable
Reconstitution Agreement expressly provides for the survival of certain rights
or obligations following termination of the Seller as servicer, such provision
shall be given effect.
(B) Any
failure by the Seller,
any
Subservicer or any Subcontractor to
deliver any information, report, certification or accountants’ letter when and
as required under Section 7.05(b) or 7.07, including (except as provided below)
any failure by the Seller to identify pursuant to Section 7.08(ii) any
Subcontractor “participating in the servicing function” within the meaning of
Item 1122 of Regulation AB, which continues unremedied for ten calendar days
after the date on which such information, report, certification or accountants’
letter was required to be delivered shall constitute an Event of Default with
respect to the Seller under this Agreement and any applicable Reconstitution
Agreement, and shall entitle the Purchaser or Depositor, as applicable, in
its
sole discretion to terminate the rights and obligations of the Seller as
servicer under this Agreement and/or any applicable Reconstitution Agreement
without payment (notwithstanding anything in this Agreement to the contrary)
of
any compensation to the Seller; provided
that to
the extent that any provision of this Agreement and/or any applicable
Reconstitution Agreement expressly provides for the survival of certain rights
or obligations following termination of the Seller as servicer, such provision
shall be given effect.
-81-
Neither
the Purchaser nor any Depositor shall be entitled to terminate the rights and
obligations of the Seller pursuant to this subparagraph (B) if a failure of
the
Seller to identify a Subcontractor “participating in the servicing function”
within the meaning of Item 1122 of Regulation AB was attributable solely to
the
role or functions of such Subcontractor with respect to mortgage loans other
than the Mortgage Loans.
(C) The
Seller shall promptly reimburse the Purchaser (or any designee of the Purchaser,
such as a master servicer) and any Depositor, as applicable, for all reasonable
expenses incurred by the Purchaser (or such designee) or such Depositor as
such
are incurred, in connection with the termination of the Seller as servicer
and
the transfer of servicing of the Mortgage Loans to a successor servicer. The
provisions of this paragraph shall not limit whatever rights the Purchaser
or
any Depositor may have under other provisions of this Agreement and/or any
applicable Reconstitution Agreement or otherwise, whether in equity or at law,
such as an action for damages, specific performance or injunctive
relief.
|
Section
11.02
|
Termination
Without Cause.
|
This
Agreement and the Seller’s rights hereunder with respect to some or all of the
Mortgage Loans shall terminate upon: (i) the later of (a) the distribution
of
the final payment or liquidation proceeds on the last Mortgage Loan to the
Purchaser (or advances by the Seller for the same), and (b) the disposition
of
all REO Property acquired upon foreclosure of the last Mortgage Loan and the
remittance of all funds due hereunder, or (ii) mutual consent of the Seller
and
the Purchaser in writing or (iii) at the sole option of the Purchaser, without
cause, upon 30 days written notice, subject to the limitations set forth below.
Any such notice of termination shall be in writing and delivered to the Seller
by registered mail to the address set forth
at
the beginning of this Agreement. The Purchaser and the Seller shall comply
with
the termination procedures set forth in Sections 10.01 and 12.01
hereof.
In
the
event the Purchaser terminates the Seller without cause with respect to some
or
all of the Mortgage Loans, the Purchaser shall be required to pay to the Seller
a termination fee equal to 1.5% of the aggregate unpaid principal balance of
such Mortgage Loans as of such termination date; provided, that no termination
fee shall be paid or payable with respect to the unpaid principal balance of
any
Distressed Mortgage Loan.
Subject
to the requirements set forth in this paragraph, the Seller may terminate this
Agreement with respect to the servicing of those Mortgage Loans that are
determined to be Distressed Mortgage Loans as of the Notice Date and servicing
of such Mortgage Loans shall be transferred to the Special Servicer.
The
Seller shall be responsible for the delivery of all required transfer notices
and will send a copy of the transfer notice to the Master Servicer.
Not
later than the Business Day immediately following the Transfer Date, the Seller
shall deliver to the Special Servicer, with respect to the Distressed Mortgage
Loans that were transferred to the Special Servicer on such Transfer Date,
all
related Servicing Files and a loan level tape or other electronic media
containing loan set-up information in form reasonably acceptable to the Special
Servicer. No termination fee shall be payable to Seller with respect to Mortgage
Loans that transfer to a Special Servicer.
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ARTICLE
XII
MISCELLANEOUS
PROVISIONS
|
Section
12.01
|
Successor
to Seller.
|
Prior
to
termination of the Seller’s responsibilities and duties under this Agreement
pursuant to Sections 8.05, 10.01, 11.01 (ii) or pursuant to Section 11.02 after
the 30 day period has expired, the Purchaser shall, (i) succeed to and assume
all of the Seller’s responsibilities, rights, duties and obligations under this
Agreement, or (ii) appoint a successor having the characteristics set forth
in
clauses (i) through (iii) of Section 9.01 and which shall succeed to all rights
and assume all of the responsibilities, duties and liabilities of the Seller
under this Agreement simultaneously with the termination of Seller’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 Seller’s duties,
responsibilities and liabilities under this Agreement should be terminated
pursuant to the aforementioned sections, the Seller shall discharge such duties
and responsibilities during the period from the date it acquires knowledge
of
such termination until the effective date thereof with the same degree of
diligence and prudence which it is obligated to exercise under this Agreement,
and shall take no action whatsoever that might impair or prejudice the rights
or
financial condition of its successor. The resignation or removal of the Seller
pursuant to the aforementioned sections shall not become effective until a
successor shall be appointed pursuant to this Section 12.01 and shall in no
event relieve the Seller of the representations and warranties made pursuant
to
Section 4.01 or Section 4.02 and the remedies available to the Purchaser under
Section 4.03, it being understood and agreed that the provisions of such
Sections 4.01, 4.02 and 4.03 shall be applicable notwithstanding any such sale,
assignment, resignation or termination of the Seller, or the termination of
this
Agreement.
Within
30
days of the appointment of a successor entity by the Purchaser, the Seller
shall
prepare, execute and deliver to the successor entity any and all documents
and
other instruments, place in such successor’s possession all Servicing Files, and
do or cause to be done all other acts or things necessary or appropriate to
effect the purposes of such notice of termination, including but not limited
to
the transfer of the Mortgage Notes and related documents. The Seller shall
cooperate with the Purchaser and such successor in effecting the termination
of
the Seller’s responsibilities and rights hereunder and the transfer of servicing
responsibilities to the successor Seller, including without limitation, the
transfer to such successor for administration by it of all cash amounts which
shall at the time be credited by the Seller to the Custodial Account or Escrow
Account or thereafter received with respect to the Mortgage Loans.
Any
successor appointed as provided herein shall execute, acknowledge and deliver
to
the Seller and to the Purchaser an instrument accepting such appointment,
wherein the successor shall make the representations and warranties set forth
in
Section 4.01, whereupon such successor shall become fully vested with all the
rights, powers, duties, responsibilities, obligations and liabilities of the
Seller, with like effect as if originally named as a party to this Agreement.
Any termination or resignation of the Seller or termination of this Agreement
pursuant to Section 8.05, 10.01, 11.01 or 11.02 shall not affect any claims
that
any Purchaser may have against the Seller arising out of the Seller’s actions or
failure to act prior to any such termination or resignation.
-83-
The
Seller shall deliver promptly to the successor servicer the funds in the
Custodial Account and Escrow Account and all Mortgage Files and related
documents and statements held by it hereunder and the Seller shall account
for
all funds and shall execute and deliver such instruments and do such other
things as may reasonably be required to more fully and definitively vest in
the
successor all such rights, powers, duties, responsibilities, obligations and
liabilities of the Seller.
Upon
a
successor’s acceptance of appointment as such, the Seller shall notify by mail
the Purchaser of such appointment in accordance with the procedures set forth
in
Section 12.08.
|
Section
12.02
|
Amendment.
|
This
Agreement may be amended from time to time by the Seller and the Purchaser
by
written agreement signed by the Seller and the Purchaser, provided, however,
that the servicing provisions of this Agreement may be amended by the Seller,
as
servicer and the Purchaser by written agreement signed only by the
Seller,
as
servicer and the Purchaser.
|
Section
12.03
|
Closing.
|
Each
closing for the purchase and sale of Mortgage Loans hereunder shall take place
on the related Closing Date. At the Purchaser’s option, the closing shall be
either: by telephone, confirmed by letter or wire as the parties shall agree;
or
conducted in person, at such place as the parties shall agree.
Each
closing for a Mortgage Loan Package shall be subject to each of the following
conditions:
(a) No
later
than the date set forth in the related Purchase Price and Terms Agreement,
the
Seller shall deliver to the Purchaser a Mortgage Loan Schedule with respect
to
the Mortgage Loans to be purchased and sold on such date;
(b) all
of
the representations and warranties of the Seller under this Agreement shall
be
true and correct as of the related Closing Date and no event shall have occurred
which, with notice or the passage of time, would constitute a default under
this
Agreement;
(c) the
Purchaser shall have received, or the Purchaser’s attorneys shall have received
in escrow, all closing documents as specified in Section 12.04 of this
Agreement, in such forms as are agreed upon and acceptable to the Purchaser,
duly executed by all signatories other than the Purchaser as required pursuant
to the respective terms thereof;
(d) The
Seller shall have delivered and released to the Custodian on or prior to the
related Closing Date all documents required pursuant to the Custodial Agreement;
and
-84-
(e) The
Seller
shall not have experienced any Material Adverse Change. For the purposes of
this
Section, “Material Adverse Change” shall mean, (i) a material adverse change in,
or a material adverse effect upon, the operations, business, properties,
condition (financial or otherwise) or prospects of the Seller; (ii) a material
impairment of the ability of the Seller, to perform under this Agreement or
any
related agreements (the “Operative Agreements”); or (iii) a material adverse
effect upon the legality, validity, binding effect or enforceability of any
Operative Agreement against the Seller; and
(f) all
other
terms and conditions of this Agreement and the related Purchase Price and Terms
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
Article III of this Agreement, plus the costs specified in Section 12.05 or
in
the related Purchase Price and Terms Agreement by wire transfer of immediately
available funds to the account designated by the Seller.
|
Section
12.04
|
Closing
Documents.
|
(a) The
closing documents to be delivered on the initial Closing Date shall consist
of
fully executed originals of the following documents, as well as the documents
referred to in Section 12.04(b):
(i) this
Agreement;
(ii) a
Custodial Account Letter Agreement or a Custodial Account Certification, as
applicable, in the form of Exhibit D-1 or Exhibit D-2 hereto, as
applicable;
(iii) an
Escrow
Account Letter Agreement or an Escrow Account Certification, as applicable,
in
the form of Exhibit E-1 or Exhibit E-2 hereto, as applicable;
(iv) an
Officer’s Certificate, in the form of Exhibit H hereto, including all
attachments thereto; and
(v) an
Opinion of Counsel of the Seller, in the form of Exhibit I hereto.
(b) The
closing documents for the Mortgage Loans to be purchased on each Closing Date
under this Agreement (including the initial Closing Date) shall consist of
fully
executed originals of the following documents:
(c) the
related Purchase Price and Terms Agreement;
(d) the
related Acknowledgment and Conveyance Agreement, including all annexes
thereto;
(e) each
of
the documents required to be delivered by the Seller pursuant to Section 2.03
hereof;
-85-
(f) an
assignment and assumption of the Custodial Agreement;
(g) an
initial certification of the Custodian;
(h) (A)
a
Security Release Certification, in the form of Exhibit J-1 hereto (if Seller
is
a member of the Federal Home Loan Bank System), executed by the applicable
regional Federal Home Loan Bank and, (B) if applicable, a Security Release
Certification, in the form of Exhibit J-2 hereto, executed by any other person,
as requested by the Purchaser, 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 and (C) if applicable, a certificate of the Seller and an opinion
of counsel of the Seller stating that the Mortgage Loans are not subject to
any
security interest, claim, pledge, hypothecation or lien;
(i) a
Certificate or other evidence of merger or change of name, signed or stamped
by
the applicable regulatory authority, if any of the Mortgage Loans were acquired
by the Seller by merger or acquired or originated by the Seller while conducting
business under a name other than its present name;
(j) upon
request by the Purchaser, an Officer’s Certificate, in the form of Exhibit H
hereto, including all attachments thereto; and
(k) upon
request by the Purchaser, an Opinion of Counsel to the Seller, in the form
of
Exhibit I hereto.
The
Seller shall bear the risk of loss of the Closing Documents until such time
as
they are received by the Purchaser or its attorneys.
|
Section
12.05
|
Costs.
|
The
Purchaser shall pay any commissions due its salesmen and the legal fees and
expenses of its attorneys. All other costs and expenses incurred in connection
with the transfer and delivery of the Mortgage Loans, including fees for the
preparation and tracking of Assignments of Mortgage, fees for title policy
endorsements and continuations and the Seller’s attorney’s fees, shall be paid
by the Seller. On the related Closing Date, the Seller shall pay to the
Purchaser a fee of $30.00 per Mortgage Loan with respect to Mortgage Loans
which
are not MERS Designated Mortgage Loans for the initial recordation of the
Assignments of Mortgage (the “Assignment Fees”), which Assignment Fees shall be
deducted from the actual Purchase Price proceeds paid to the Seller on the
such
Closing Date. The Seller shall pay any fees for the set up of all tax service
contracts or flood insurance contracts for the Mortgage Loans and the Seller
shall be responsible for the payment of any costs associated with the transfer
of the tax service contracts or flood insurance contracts to a subsequent
servicer in the event that the Seller may be terminated as servicer under this
Agreement pursuant to Section 10.01.
|
Section
12.06
|
Governing
Law.
|
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER
THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
-86-
|
Section
12.07
|
Duration
of Agreement.
|
This
Agreement shall continue in existence and effect until terminated as herein
provided. This Agreement shall continue notwithstanding transfers of the
Mortgage Loans by the Purchaser.
|
Section
12.08
|
Notices.
|
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if personally delivered at or mailed by
registered mail, postage prepaid, addressed as follows:
| (i) |
if
to the Seller:
|
GreenPoint
Mortgage Funding, Inc.
000
Xxxx
Xxxxxx Xxxxx
Xxxxxx,
Xxxxxxxxxx 00000
Attention:
Xx. Xxxxx Xxxxx
| (ii) |
if
to Purchaser:
|
Xxxxxx
Brothers Bank, FSB
000
Xxxxxxx Xxxxxx
0xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Contract Finance
|
Section
12.09
|
Severability
of Provisions.
|
If
any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall be held invalid for any reason whatsoever, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no
way
affect the validity or enforceability of the other provisions of this
Agreement.
|
Section
12.10
|
Relationship
of Parties.
|
Nothing
herein contained shall be deemed or construed to create a partnership or joint
venture between the parties hereto and the services of the Seller shall be
rendered as an independent contractor and not as agent for the
Purchaser.
-87-
|
Section
12.11
|
Execution;
Successors and Assigns.
|
This
Agreement may be executed in one or more counterparts and by the different
parties hereto on separate counterparts, each of which, when so executed, shall
be deemed to be an original; such counterparts, together, shall constitute
one
and the same agreement. This Agreement shall inure to the benefit of and be
binding upon the Seller and the Purchaser and their respective successors and
assigns.
|
Section
12.12
|
Recordation
of Assignments of Mortgage.
|
The
Assignments of Mortgage are generally required to be recorded by or on behalf
of
the Seller in the appropriate offices for real property records; provided
however, the Seller shall not cause to be recorded any Assignment which relates
to a Mortgage Loan in a jurisdiction where either the rating agencies (in the
case of Agency or Securitization Transactions) or purchasers (in the case of
Whole Loan Transfers) do not require recordation; provided further, however,
notwithstanding the foregoing, upon the occurrence of certain events set forth
in the pooling agreement (in the case of and Agency or Securitization
Transaction), each such assignment of Mortgage shall be recorded by the Master
Servicer or the trustee as set forth in the pooling agreement. Any costs
associated with the recording of the initial Assignments of Mortgage and other
relevant documents will be borne by the Seller, provided, however, if the Seller
fails to pay the cost of recording or with respect to additional Assignments
of
Mortgage, such expense will be paid by the Master Servicer or the trustee,
as
applicable, and will be reimbursable to such party (other than the Master
Servicer so long as the Master Servicer is also the Seller) by the applicable
trust prior to any distribution to certificateholders. In the event that
Purchaser sells any Mortgage Loans in a Whole Loan Transfer and the subsequent
purchaser requests recorded Assignments of Mortgage, the Seller, shall at its
expense cause to be recorded any Assignments of Mortgage.
|
Section
12.13
|
Assignment
by Purchaser.
|
The
Purchaser shall have the right, without the consent of the Seller, to assign,
in
whole or in part, its interest under this Agreement with respect to some or
all
of the Mortgage Loans, and designate any person to exercise any rights of the
Purchaser hereunder. Upon such assignment of rights and assumption of
obligations, the assignee or designee shall accede to the rights and obligations
hereunder of the Purchaser with respect to such Mortgage Loans and the Purchaser
as assignor shall be released from all obligations hereunder with respect to
such Mortgage Loans from and after the date of such Assignment and Assumption.
All references to the Purchaser in this Agreement shall be deemed to include
its
assignee or designee.
|
Section
12.14
|
No
Personal Solicitation.
|
From
and
after the initial Closing Date, the Seller hereby agrees that it will not take
any action or permit or cause any action to be taken by any of its agents or
Affiliates, or by any independent contractors on the Seller’s behalf, to
personally, by telephone, mail, e-mail or the Internet, solicit the borrower
or
obligor under any Mortgage Loan for any purpose whatsoever, including to
refinance a Mortgage Loan, in whole or in part, without the prior written
consent of the Purchaser. It is understood and agreed that all rights and
benefits with respect to the related Mortgage Loans relating to the solicitation
of any Mortgagors and the attendant rights, title and interest in and to the
list of such Mortgagors and data relating to their Mortgages (including
insurance renewal dates) shall be transferred to the Purchaser pursuant hereto
on the related Closing Date and the Seller shall take no action to undermine
these rights and benefits. Notwithstanding the foregoing, it is understood
and
agreed that promotions undertaken by the Seller or any Affiliate of the Seller
which are directed to the general public at large, including, without
limitation, mass mailing based on commercially acquired mailing lists, and
newspaper, radio and television advertisements shall not constitute solicitation
under this Section.
-88-
|
Section
12.15
|
Confidential
Information
|
The
Seller shall keep confidential and shall not divulge to any party, without
the
Purchaser’s prior written consent, the Purchase Price paid by the Purchaser for
any Mortgage Loan or Mortgage Loan Package, except to the extent that it is
appropriate for the Seller to do so in working with legal counsel, auditors,
taxing authorities or other governmental agencies.
The
Seller hereby acknowledges that the Purchaser is subject to certain privacy
and
information security laws and regulations pursuant to which the Purchaser is
required to obtain certain undertakings from the Seller with regard to the
privacy, use and protection of nonpublic personal financial information of
the
Mortgagors and certain other parties. Therefore, notwithstanding anything to
the
contrary contained in this Agreement, the Seller agrees that (a) it shall keep
all Customer Information strictly confidential and shall not disclose or use
any
Customer Information except to the extent necessary to carry out its obligations
under this Agreement and for no other purpose and (b) it shall not disclose
Customer Information to any third party, including, without limitation, its
third party service providers, without the prior consent of the Purchaser and
an
agreement in writing from the third party to use or disclose such Customer
Information only to the extent necessary to carry out the Seller's obligations
under this Agreement and for no other purposes. At any time at the request
and
option of the Purchaser and in the event of termination or expiration of this
Agreement (or any part thereof), the Seller agrees to promptly: (x) return
to
the Purchaser all Customer Information; or (y) properly destroy or permanently
erase (on all forms of recordation), in a manner consistent with the Purchaser’s
obligations under applicable laws and regulations, the Customer Information
and,
if requested by the Purchaser, acknowledge in writing that all such Customer
Information has been destroyed or permanently erased. The obligations set forth
in this Section shall survive termination of this Agreement.
|
Section
12.16
|
Appointment
and Designation of Master Servicer.
|
The
Purchaser may, in its sole discretion from time to time, engage a master
servicer (the “Master Servicer”) to assist the Purchaser in the supervision of
the performance by the Seller of its obligations and responsibilities arising
under this Agreement. In the event that the Purchaser so appoints a Master
Servicer, the Purchaser shall provide written notice thereof to the Seller.
From
the date of such notice until such time as the Seller receives written notice
from the Purchaser that it has terminated or replaced such Master Servicer,
the
Seller shall deliver all notices, reports and remittances that the Seller is
obligated to deliver to the Purchaser under this Agreement directly to the
Master Servicer named in such notice (or to any successor master servicer named
in any subsequent written notice received from the Purchaser). The Master
Servicer, acting on behalf of the Purchaser, shall have the benefit of the
covenants and agreements of the Seller under this Agreement and the Master
Servicer, acting on behalf of the Purchaser, shall have the same rights as
the
Purchaser to the to enforce the obligations of the Seller arising under this
Agreement. The Master Servicer shall be entitled to terminate the rights and
obligations of the Seller under this Agreement upon the occurrence of an Event
of Default as provided in this Agreement. Notwithstanding anything herein to
the
contrary, in no event shall the Master Servicer assume any of the obligations
of
the Purchaser under this Agreement; and in connection with the performance
of
the Master Servicer’s duties hereunder the Seller agrees that the Master
Servicer shall be entitled to all of the rights, protections, indemnities and
limitations of liability afforded to the Purchaser under this Agreement. The
Purchaser hereby appoints Aurora Loan Services Inc. as
its
Master Servicer hereunder.
-89-
|
Section
12.17
|
Waivers;
Other Agreements.
|
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
12.18
|
Intention
of the Parties.
|
It
is the
intention of the parties that the Purchaser is purchasing, and the Seller is
selling, 100% ownership interest in the Mortgage Loans and not a debt instrument
of the Seller or another security. Accordingly, the parties hereto each intend
to treat each transaction for federal income tax purposes as a sale by the
Seller, and a purchase by the Purchaser, of the Mortgage Loans. Moreover, the
arrangement under which the Mortgage Loans are held shall be consistent with
classification of such arrangement as a grantor trust in the event it is not
found to represent direct ownership of the Mortgage Loans. The Purchaser shall
have the right to review the Mortgage Loans and the related Mortgage Loan Files
to determine the characteristics of the Mortgage Loans which shall affect the
Federal income tax consequences of owning the Mortgage Loans and the Seller
shall cooperate with all reasonable requests made by the Purchaser in the course
of such review.
The
Purchaser and the Seller acknowledge and agree that the purpose of Sections
4.01(B), 7.05(b), 7.07, 7.08, 8.01(e), 8.04(b) and 11.01 of this Agreement
is to
facilitate compliance by the Purchaser and any Depositor with the provisions
of
Regulation AB and related rules and regulations of the Commission. Although
Regulation AB is applicable by its terms only to offerings of asset-backed
securities that are registered under the Securities Act, the Seller acknowledges
that investors in privately offered securities may require that the Purchaser
or
any Depositor provide comparable disclosure in unregistered offerings.
References in this Agreement to compliance with Regulation AB include provision
of comparable disclosure in private offerings.
Neither
the Purchaser nor any Depositor shall exercise its right to request delivery
of
information or other performance under these provisions other than in good
faith, or for purposes other than compliance with the Securities Act, the
Exchange Act and the rules and regulations of the Commission thereunder (or
the
provision in a private offering of disclosure comparable to that required under
the Securities Act). The Seller acknowledges that interpretations of the
requirements of Regulation AB may change over time, whether due to interpretive
guidance provided by the Commission or its staff, consensus among participants
in the asset-backed securities markets, advice of counsel, or otherwise, and
agrees to comply with requests made by the Purchaser or any Depositor in good
faith for delivery of information under these provisions on the basis of
evolving interpretations of Regulation AB. In connection
with any Securitization Transaction, the Seller
shall
cooperate fully with the Purchaser to deliver to the Purchaser (including any
of
its assignees or designees) and any Depositor, any and all statements, reports,
certifications, records and any other information necessary in the good faith
determination of the Purchaser or any Depositor to permit the Purchaser or
such
Depositor to comply with the provisions of Regulation AB, together with such
disclosures relating to the Seller,
any
Subservicer, any Third-Party Originator and the Mortgage Loans, or the servicing
of the Mortgage Loans, reasonably believed by the Purchaser or any Depositor
to
be necessary in order to effect such compliance.
-90-
The
Purchaser (including any of its assignees or designees) shall cooperate with
the
Seller by providing timely notice of requests for information under these
provisions and by reasonably limiting such requests to information required,
in
the Purchaser’s reasonable judgment, to comply with Regulation AB.
|
Section
12.19
|
Exhibits.
|
The
exhibits to this Agreement are hereby incorporated and made a part hereof and
are an integral
part of this Agreement.
|
Section
12.20
|
General
Interpretive Principles.
|
For
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires:
(a) the
terms
defined in this Agreement have the meanings assigned to them in this Agreement
and include the plural as well as the singular, and the use of any gender herein
shall be deemed to include the other gender;
(b) accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles;
(c) references
herein to “Articles”, “Sections”, “Subsections”, “Paragraphs”, and other
subdivisions without reference to a document are to designated Articles,
Sections, Subsections, Paragraphs and other subdivisions of this
Agreement;
(d) a
reference to a Subsection without further reference to a Section is a reference
to such Subsection as contained in the same Section in which the reference
appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(e) the
words
“herein”, “hereof”, “hereunder” and other words of similar import refer to this
Agreement as a whole and not to any particular provision; and
(f) the
term
“include” or “including” shall mean without limitation by reason of
enumeration.
[SIGNATURE
PAGE IMMEDIATELY FOLLOWS]
-91-
IN
WITNESS WHEREOF, the Seller and the Purchaser have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of
the
day and year first above written.
|
XXXXXX
BROTHERS BANK, FSB,
Purchaser
|
||
| |
|
|
| By: | ||
|
Name:
Xxxx X. Xxxxxx
|
||
|
Title:
Vice President
|
||
|
GREENPOINT
MORTGAGE FUNDING, INC.,
|
||
|
Seller
|
||
|
By:
|
||
|
Name:
|
|
Title:
|
-00-
XXXXXXX
X-0
FORM
OF
ACKNOWLEDGMENT AND CONVEYANCE AGREEMENT
(Group
No. 200_-____)
This
is
an Acknowledgment and Conveyance Agreement delivered pursuant to that certain
Amended and Restated Flow Mortgage Loan Purchase, Warranties and Servicing
Agreement, dated as of January 1, 2007 (the “Agreement”),
between XXXXXX BROTHERS BANK, FSB (the “Purchaser”),
and
GREENPOINT
MORTGAGE FUNDING, INC.
(the
“Seller”).
All
capitalized terms used herein without definition shall have the meanings
ascribed thereto in the Agreement.
The
Purchaser and the Seller hereby confirm that they have reached agreement on
the
purchase, sale and servicing of the Mortgage Loans described on the Mortgage
Loan Schedule attached as Annex 1 hereto on the terms and conditions set forth
in the Purchase Agreement (which terms and conditions are incorporated herein
by
this reference) and the Purchase Price and Terms Agreement, dated as of
___________ __, 200_ between the parties hereto.
Accordingly,
on this [___ day of _________, 200_], the Seller does hereby sell, transfer,
assign, set over and convey to the Purchaser all right, title and interest
of
the Seller in and to the Mortgage Loans listed on the Mortgage Loan Schedule
attached as Annex 1 hereto, including all interest and principal received by
the
Seller on or with respect to the Mortgage Loans after the related Cut-off Date,
together with all of the Seller’s right, title and interest in and to each
Custodial Account and all amounts from time to time credited to and the proceeds
of such Custodial Account, all amounts from time to time credited to and the
proceeds of any Escrow Account, any Liquidation Proceeds or Condemnation
Proceeds, any REO Disposition Proceeds, the Seller’s rights under any insurance
policies related to the Mortgage Loans, the Policy related to each Mortgage
Loan
and all rights of the Seller thereunder, any Insurance Proceeds, the Seller’s
security interest in any collateral pledged to secure the Mortgage Loans,
including the Mortgaged Properties, and any proceeds of the foregoing. Pursuant
to Article II of the Agreement, the Seller has delivered to the Custodian the
documents for each Mortgage Loan to be purchased as set forth in the Agreement.
The ownership of each Mortgage Note, Mortgage, and the contents of each Mortgage
File is vested in the Purchaser and the ownership of all records and documents
with respect to the related Mortgage Loan prepared by or which come into the
possession of the Seller shall immediately vest in the Purchaser.
By
its
execution and delivery of this Acknowledgment and Conveyance Agreement, the
Seller represent and warrant to the Purchaser that each of the representations
and warranties contained in Sections 4.01 and 4.02 of the Agreement and
Annex
2
hereto
is true and correct as of the date hereof with respect to the Seller and each
of
the Mortgage Loans listed on the Mortgage Loan Schedule attached as Annex
1
hereto.
In addition, the Seller represents and warrants to the Purchaser that the
Underwriting Guidelines set forth on Annex
3
hereto
are the Underwriting Guidelines used by the Seller with respect to the
origination of the Mortgage Loans in this Mortgage Loan Package.
Exh.
A-1-1
By
its
execution and delivery of this Acknowledgment and Conveyance Agreement, the
Seller represents and warrants to the Purchaser that no Mortgage Loan is subject
to H.B. 4050, the Predatory Lending Database Act enacted by the State of
Illinois as of September 1, 2006 unless, the related Mortgage File includes,
as
of the date hereof, (i) a clean title insurance policy without material
exceptions and (ii) a copy of the Certificate of Compliance or the Certificate
of Exemption issued by the Department of Financial and Professional
Regulation.
By
its
execution and delivery of this Acknowledgment and Conveyance Agreement, the
Seller agrees that it shall service the Mortgage Loans on behalf of the
Purchaser in accordance with the terms and conditions contained in the
Agreement.
This
Acknowledgment and Conveyance Agreement may be executed simultaneously in any
number of counterparts. Each counterpart shall be deemed an original, and all
such counterparts shall constitute one and the same instrument.
|
GREENPOINT
MORTGAGE FUNDING, INC.,
as Seller
|
||
| |
|
|
| By: | ||
|
Name:
|
||
|
Title:
|
||
|
XXXXXX
BROTHERS BANK, FSB, as Purchaser
|
||
| |
|
|
| By: | ||
|
Name:
Xxxx
X. Xxxxxx
|
||
|
Title:
Vice President
|
||
Annex
1
to
Acknowledgment
and Conveyance Agreement
MORTGAGE
LOAN SCHEDULE
[Each
Mortgage Loan Schedule shall provide the information required by Exhibit A-2
to
the Agreement with respect to each Mortgage Loan as of the related Cut-Off
Date.]
Exh.
A-1-3
Annex
2
to
Acknowledgment
and Conveyance Agreement
POOL
CHARACTERISTICS
The
Seller hereby represents and warrants to the Purchaser, as to each Mortgage
Loan, that as of [DATE] or as of such other date specifically provided
therein:
Pool
Characteristics.
[“Pool
1 Mortgage Loans” are the group of _________ Mortgage Loans set forth on the
Mortgage Loan Schedule, “Pool 2 Mortgage Loans” are the group of _________
Mortgage Loans set forth on the Mortgage Loan Schedule.] With respect to the
aggregate unpaid principal balance of all of the Mortgage Loans as of the
Closing Date, (a) the Mortgage Loans are secured by real property improved
by
one- to four- family dwellings with original terms of up to [___] years, (b)
with respect to each ARM Mortgage Loan the Index shall be as set forth on the
Mortgage Loan Schedule, (c) the maximum Mortgage Interest Rate of the Mortgage
Loans is [___]%, (d) the minimum Mortgage Interest Rate of the Mortgage Loans
is
[___]%, (e) the Mortgage Loans have a weighted average remaining term of [___]
months, (f) each of the Mortgaged Properties consists of a single parcel of
real
property of which (i) at least [___]% are attached or detached one family
residences, (ii) approximately [___]% are individual condominium units in a
condominium project, (iii) approximately [___]% are units in planned unit
developments, (iv) approximately [___]% are two-to-four family residential
dwellings, (v) not more than [___]% are townhouses and (vi) not more than [___]%
are manufactured housing which are permanently affixed to the ground, (g) no
more than [___]% of the Mortgage Loans are rate-term refinance mortgage loans,
(h) no more than [___]% of the Mortgage Loans are cash out refinance mortgage
loans, (i) at least [___]% of the Mortgage Loans are purchase money mortgage
loans, (j) the Mortgaged Properties are located as follows (i) approximately
[___]% in [___], (ii) approximately [___]% in [___] and (iii) no other state
shall contain a percentage which is greater than [___]% and (k) with respect
to
the ARM Mortgage Loans, the weighted average initial period gross Lifetime
Rate
Cap shall be [___]% and the weighted average lifetime Mortgage Interest Rate
of
[___]%. With respect to the aggregate unpaid principal balance of the Mortgage
Loans at the time of origination, (a) no more than [___]% of the Mortgaged
Properties were investment properties and (b) at least [___]% of the Mortgaged
Properties were owner-occupied primary residences. With respect to the aggregate
unpaid principal balance of the Mortgage Loans, (a) at least [___]% of the
Mortgage Loans shall have full documentation, (b) no more than [___]% of the
Mortgage Loans shall have stated income documentation and (c) no more than
[___]% of the Mortgage Loans shall have alternate income documentation. The
maximum LTV at origination of the Mortgage Loans in Pool 1 was not more than
[___]% and the maximum LTV at origination of the Mortgage Loans in Pool 2 was
not more than [___]%. The weighted average LTV at origination of the Mortgage
Loans in Pool 1 was not more than [___]% and the weighted average LTV at
origination of the Mortgage Loans in Pool 2 was not more than [___]%. The
weighted average FICO Score of the Mortgage Loans in Pool 1 is not less than
[___] and the weighted average FICO Score of the Mortgage Loans in Pool 2 is
not
less than [__]. Of the Mortgage Loans in Pool 1, [___]% have a credit grade
of
[___], [___]% have a credit grade of [___], [___]% have a credit grade of [___],
[__]% have a credit grade of [___]and [___]% have a credit grade of [___].
Of
the Mortgage Loans in Pool 2, [___]% have a credit grade of [___], [___]% have
a
credit grade of [___], [___]% have a credit grade of [___], [___]% have a credit
grade of [___]and [___]% have a credit grade of [___]. The credit grades of
the
Mortgage Loans were determined in accordance with the Underwriting Guidelines
attached as Annex
3
hereto.
The Mortgage Loans have the approximate pool characteristics as set forth in
the
Purchase Price and Terms Letter.
Exh.
A-1-4
Annex
3
to
Acknowledgment
and Conveyance Agreement
SELLER’S
UNDERWRITING GUIDELINES
Exh.
A-1-5
EXHIBIT
A-2
MORTGAGE
LOAN SCHEDULE DATA FIELDS
|
(1)
|
the
Seller’s Mortgage Loan identifying
number;
|
|
(2)
|
the
Mortgagor’s and Co-Mortgagor’s (if applicable)
names;
|
|
(3)
|
the
street address of the Mortgaged Property, including the city, state,
zip
code, lot number, block number and section
number;
|
|
(4)
|
a
code indicating whether the Mortgaged Property is a single family
residence, a 2 family dwelling, a 3-4 family dwelling, a manufactured
home, a PUD, a townhouse, a unit in a condominium, a co-operative,
a mixed
use property, land, or a non-residential
property;
|
|
(5)
|
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;
|
|
(6)
|
the
Loan to Value Ratio at origination;
|
|
(7)
|
the
combined Loan to Value Ratio at
origination;
|
|
(8)
|
the
Mortgage Interest Rate as of the Cut-off
Date;
|
|
(9)
|
the
date on which the first payment is
due;
|
|
(10)
|
the
stated maturity date;
|
|
(11)
|
the
amount of the Monthly Payment;
|
|
(12)
|
the
next due date as of the Cut-off
Date;
|
|
(13)
|
the
original principal amount of the Mortgage
Loan;
|
|
(14)
|
the
principal balance of the Mortgage Loan as of the close of business
on the
Cut-off Date; after deduction of payments of principal actually received
on or before the Cut-off Date;
|
|
(15)
|
the
loan purpose code;
|
|
(16)
|
the
occupancy code;
|
|
(17)
|
the
Indices and Payment and Rate Adjustment
Frequencies;
|
|
(18)
|
the
initial Interest Rate Adjustment
Date;
|
Exh.
A-2-1
|
(19)
|
the
initial Payment Adjustment Date;
|
|
(20)
|
the
next Interest Rate Adjustment Date;
|
|
(21)
|
the
next Payment Adjustment Date;
|
|
(22)
|
the
Gross Margin;
|
|
(23)
|
the
minimum Mortgage Interest Rate under the terms of the Mortgage
Note;
|
|
(24)
|
the
maximum Mortgage Interest Rate under the terms of the Mortgage
Note;
|
|
(25)
|
the
Mortgage Interest Rate adjustment cap at the initial Interest Rate
Adjustment Date;
|
|
(26)
|
the
Mortgage Interest Rate adjustment cap at all subsequent Interest
Rate
Adjustment Dates;
|
|
(27)
|
the
Lifetime Mortgage Interest Rate Cap;
|
|
(28)
|
the
loan documentation code to be provided in conformance with Standard
and
Poor’s documentation categories- Field
5);
|
|
(29)
|
the
debt to income ratio; and
|
|
(30)
|
the
Mortgagor’s and Co-Mortgagor’s (if applicable) social security
numbers;
|
|
(31)
|
the
Mortgagor’s and Co-Mortgagor’s (if applicable) FICO score,
|
|
(32)
|
the
original FICO score, and the Next Generation FICO Score for new credit
scores;
|
|
(33)
|
the
date of the FICO score;
|
|
(34)
|
the
Mortgagor’s mailing address if different from Number (3)
above;
|
|
(35)
|
the
Mortgagor’s home telephone number;
|
|
(36)
|
the
credit grade of the Mortgage Loan;
|
|
(37)
|
the
Mortgagor’s business telephone
number;
|
|
(38)
|
the
purchase price of the Mortgaged Property (if a
purchase);
|
|
(39)
|
the
Appraisal value of the Mortgaged
Property;
|
|
(40)
|
the
Mortgagor’s and Co-Mortgagor’s (if applicable)
race;
|
Exh.
A-2-2
|
(41)
|
the
Mortgagor’s and Co-Mortgagor’s (if applicable)
gender;
|
|
(42)
|
the
Mortgagor’s and Co-Mortgagor’s (if applicable) date of birth;
|
|
(43)
|
the
number of bedrooms;
|
|
(44)
|
rental
income per unit;
|
|
(45)
|
the
combined annual income;
|
|
(46)
|
the
application date;
|
|
(47)
|
the
broker’s name;
|
|
(48)
|
the
broker’s firm name;
|
|
(49)
|
the
appraiser’s name;
|
|
(50)
|
the
appraiser’s firm name;
|
|
(51)
|
the
settlement agent;
|
|
(52)
|
the
origination channel (wholesale,
retail);
|
|
(53)
|
flood
insurance provider;
|
|
(54)
|
tax
service provider;
|
|
(55)
|
number
of units;
|
|
(56)
|
as
of date;
|
|
(57)
|
amortization
term;
|
|
(58)
|
balloon
flag;
|
|
(59)
|
prepayment
penalty flag;
|
|
(60)
|
prepayment
penalty term;
|
|
(61)
|
payment
history current loan;
|
|
(62)
|
mortgage
insurance provider;
|
|
(63)
|
mortgage
insurance coverage percentage;
|
Exh.
A-2-3
|
(64)
|
mortgage
insurance cost, if LPMI;
|
|
(65)
|
mortgage
insurance certificate number;
|
|
(66)
|
number
of borrowers;
|
|
(67)
|
first
time home buyer flag;
|
|
(68)
|
year
home was built;
|
|
(69)
|
the
monthly tax and insurance payment;
|
|
(70)
|
the
escrow balance as of the cut-off date;
|
|
(71)
|
The
MIN number assigned to each Mortgage Loan;
|
|
(72)
|
monthly
payment histories on current mortgages (24 months if
available);
|
|
(73)
|
foreclosure
history (for the past 24 months);
|
|
(74)
|
bankruptcy
history (for the past 24 months);
|
|
(75)
|
a
code indicating the Appraisal Type (Tax Assessment, BPO, Drive-By
Form
704, URAR, Form 2065, Form 2055 (Exterior only), Form 2055 (Interior
Inspection), or AVM;
|
|
(76)
|
if
the Appraisal Type in #77 is an AVM, then a description of the AVM
type;
|
|
(77)
|
a
code indicating whether the loan is a fixed rate or adjustable rate
Mortgage Loan (to be provided in accordance with Standard and Poor’s loan
type requirements - Field 14);
|
|
(78)
|
Product
Description (to be provided in accordance with Standard and Poor’s
description categories -Field 7);
|
|
(79)
|
Asset
Verification (Purchase Money loans only), (yes, no);
|
|
(80)
|
A
code indicating whether the Borrower(s) is self-employed (yes or
no);
|
|
(81)
|
dollar
amount of reserves at closing along with PITI monthly payment
amount;
|
|
(82)
|
a
code indicating if the Mortgage Loan is classified as “High Cost” or
“Covered” as set forth in the then current Standard & Poor’s LEVELS®
Glossary; and
|
|
(83)
|
current
delinquency information in 30 day
intervals.
|
Exh.
A-2-4
EXHIBIT
B
CONTENTS
OF EACH MORTGAGE FILE
The
Mortgage Loan Documents for each Mortgage Loan shall include each of the
following items, which shall be delivered to the Custodian pursuant to Section
2.01 of the Amended and Restated Flow Mortgage Loan Purchase, Warranties and
Servicing Agreement to which this Exhibit is annexed (the
“Agreement”):
|
(a)
|
the
original Mortgage Note bearing all intervening endorsements and including
any riders to the Mortgage Note endorsed “Pay to the order of
__________________________________, without recourse and signed in
the
name of the previous owner by an authorized
officer;
|
|
(b)
|
the
original of any guarantee executed in connection with the Mortgage
Note
(if any);
|
|
(c)
|
the
original Mortgage with evidence of recording thereon or, copies certified
by the related recording office or if the original Mortgage has not
yet
been returned from the recording office, a copy certified by the
Seller
indicating that such Mortgage has been delivered for recording. The
return
directions for the original Mortgage should indicate, when recorded,
mail
to the Seller;
|
|
(d)
|
the
originals of all assumption, modification, consolidation or extension
agreements, (or, if an original of any of these documents has not
been
returned from the recording office, a certified copy thereof, the
original
to be delivered to the Seller forthwith after return from such recording
office) with evidence of recording thereon, if
any;
|
|
(e)
|
the
original Assignment of Mortgage as appropriate, in recordable form,
for
each Mortgage Loan to ____________________________, or the original
Assignment of Mortgage in recordable form into
MERS;
|
|
(f)
|
the
originals of any intervening recorded Assignments of Mortgage showing
a
complete chain of assignment from origination to the Seller, including
warehousing assignments, with evidence of recording thereon, (or,
if any
original intervening Assignment of Mortgage has not been returned
from the
recording office, a certified copy thereof, the original to be delivered
to the Custodian forthwith after return from such recording office);
|
|
(g)
|
with
respect to each Mortgage Loan, the original mortgage title insurance
policy or attorney’s opinion of title and abstract or a title commitment
or title binder if an original title insurance policy has not been
issued,
or a duplicate copy of an original title insurance policy;
|
|
(h)
|
the
original or copy of the PMI policy or certificate of insurance, where
required; and
|
Exh.
B-1
|
(i)
|
for
each Cooperative Loan, the original or a seller certified true copy
of the
following: (i) the original Pledge Agreement entered into by the
Mortgagor
with respect to such Cooperative Loan, (ii) UCC-3 assignment in blank
(or
equivalent instrument), sufficient under the laws of the jurisdiction
where the related Cooperative Apartment is located to reflect of
record
the sale and assignment of the Cooperative Loan to the Buyer, (iii)
original assignment of Pledge Agreement in blank showing a complete
chain
of assignment from the originator of the related Cooperative Loan
to the
Seller, (iv) original Form UCC-1 and any continuation statements
with
evidence of filing thereon with respect to such Cooperative Loan,
(v)
Cooperative Shares with a Stock Certificate in blank attached, (vi)
original Proprietary Lease, (vii) original Assignment of Proprietary
Lease, in blank, and all intervening assignments thereof, (viii)
original
recognition agreement of the interests of the mortgagee with respect
to
the Cooperative Loan by the Cooperative, and (ix) originals of any
assumption, consolidation or modification agreements relating to
any of
the items specified above.
|
In
the
event an Officer’s Certificate of the Seller is delivered to the Custodian
because of a delay caused by the public recording office in returning any
recorded document, the Seller shall deliver to the Custodian, within 60 days
of
the Closing Date, an Officer’s Certificate which shall (i) identify the recorded
document, (ii) state that the recorded document has not been delivered to the
Custodian due solely to a delay caused by the public recording office, (iii)
state the amount of time generally required by the applicable recording office
to record and return a document submitted for recordation, and (iv) specify
the
date the applicable recorded document will be delivered to the Custodian. The
Seller shall be required to deliver to the Custodian the applicable recorded
document by no later than 180 days following the Closing Date, provided, that
an
extension of such date may be requested from the Purchaser, which consent shall
not be unreasonably withheld.
Exh.
X-0
XXXXXXX
X
XXXXXXXX
Xxx.
C-1
EXHIBIT
D-1
CUSTODIAL
ACCOUNT CERTIFICATION
_____________________,
200_
GreenPoint
Mortgage Funding, Inc. hereby certifies that it has established the account
described below as a Custodial Account pursuant to Section 5.04 of the Amended
and Restated Flow Mortgage Loan Purchase, Warranties and Servicing Agreement,
dated as January 1, 2007, Conventional Residential Adjustable and Fixed Rate
Mortgage Loans, Group No. 2006-FLOW.
|
Title
of Account:
|
GreenPoint
Mortgage Funding, Inc. in trust for the Purchaser, Group No.
2006-FLOW.
|
|
Account
Number:
|
________________________________
|
|
Address
of office or branch
|
|
|
of
the Seller at
|
|
| which Account is maintained: |
________________________________
________________________________
________________________________
________________________________
|
|
GreenPoint
Mortgage Funding, Inc.
|
||
|
By:
_________________________________
|
||
|
Title:
_________________________________
|
||
Exh.
D-1-1
EXHIBIT
D-2
CUSTODIAL
ACCOUNT LETTER AGREEMENT
_________________,
200_
|
To:
|
||
|
(the
“Depository”)
|
As
Seller
under the Amended and Restated Flow Mortgage Loan Purchase, Warranties and
Servicing Agreement, dated as of January 1, 2007, Conventional Residential
Adjustable and Fixed Rate Mortgage Loans, Group No. 2006-FLOW (the “Agreement”),
we hereby authorize and request you to establish an account, as a Custodial
Account pursuant to Section 5.04 of the Agreement, to be designated as
“GreenPoint Mortgage Funding, Inc., in trust for the Purchaser - Conventional
Residential Adjustable and Fixed Rate Mortgage Loans - Group No. 2006-FLOW.” 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.
GreenPoint
Mortgage Funding, Inc.
By:
__________________________________
Name:
________________________________
Title:_________________________________
Date:
_________________________________
Exh.
D-2-1
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”).
____________________________________
Depository
By:
__________________________________
Name:
________________________________
Title:
_________________________________
Date:
_________________________________
Exh.
D-2-2
EXHIBIT
E-1
ESCROW
ACCOUNT CERTIFICATION
__________________,
200_
GreenPoint
Mortgage Funding, Inc. hereby certifies that it has established the account
described below as an Escrow Account pursuant to Section 5.06 of the Amended
and
Restated Flow Mortgage Loan Purchase, Warranties and Servicing Agreement, dated
as of January 1, 2007, Conventional Residential Adjustable and Fixed Rate
Mortgage Loans, Group No. 2006-FLOW.
|
Title
of Account:
|
“GreenPoint
Mortgage Funding, Inc. in trust for the Purchaser, Group No.
2006-FLOW,
and
various
Mortgagors.”
|
|
Account
Number:
|
________________________________
|
|
Address
of office or branch
|
|
|
of
the Seller at
|
|
| which Account is maintained: |
________________________________
________________________________
________________________________
________________________________
|
|
GreenPoint
Mortgage Funding, Inc.
|
||
|
By:
_________________________________
|
||
|
Title:
_________________________________
|
||
Exh.
E-1-1
EXHIBIT
E-2
ESCROW
ACCOUNT LETTER AGREEMENT
___________________,
200_
|
To:
|
||
|
(the
“Depository”)
|
As
Seller
under the Amended and Restated Flow Mortgage Loan Purchase, Warranties and
Servicing Agreement, dated as of January 1, 2007, Conventional Residential
Adjustable and Fixed Rate Mortgage Loans, Group No. 2006-FLOW (the “Agreement”),
we hereby authorize and request you to establish an account, as an Escrow
Account pursuant to Section 5.06 of the Agreement, to be designated as
“GreenPoint Mortgage Funding, Inc., in trust for the Purchaser - Conventional
Residential Adjustable and Fixed Rate Mortgage Loans - Group No. 2006-FLOW.” 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.
GreenPoint
Mortgage Funding, Inc.
By:
___________________________________
Name:
_________________________________
Title:
__________________________________
Date:
__________________________________
Exh.
E-2-1
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”).
____________________________________
Depository
By:
__________________________________
Name:
________________________________
Title:
_________________________________
Date:
_________________________________
Exh.
E-2-2
EXHIBIT
F-1
FORM
OF
MONTHLY REMITTANCE ADVICE
| FIELD NAME | DESCRIPTION | FORMAT | ||
|
INVESTOR
LOAN NUMBER
|
Number
no decimals
|
|||
|
SERVNUM
|
SERVICER
LOAN NUMBER, REQUIRED
|
Number
no decimals
|
||
|
BEGSCHEDBAL
|
BEGINNING
SCHEDULED BALANCE FOR SCHED/SCHED BEGINNING TRAIL BALANCE FOR
ACTUAL/ACTUAL, REQUIRED
|
Number
two decimals
|
||
|
SCHEDPRIN
|
SCHEDULED
PRINCIPAL AMOUNT FOR SCHEDULED/SCHEDULED ACTUAL PRINCIPAL COLLECTED
FOR
ACTUAL/ACTUAL, REQUIRED, .00 IF NO COLLECTIONS
|
Number
two decimals
|
||
|
CURT1
|
CURTAILMENT
1 XXXXXX, .00 IF NOT APPLICABLE
|
Number
two decimals
|
||
|
|
||||
|
CURT1DATE
|
CURTAILMENT
1 DATE, BLANK IF NOT APPLICABLE
|
DD-MMM-YY
|
||
|
CURT1ADJ
|
CURTAILMENT
1 ADJUSTMENT, .00 IF NOT APPLICABLE
|
Number
two decimals
|
||
|
CURT2
|
CURTAILMENT
2 XXXXXX, .00 IF NOT APPLICABLE
|
Number
two decimals
|
||
|
CURT2DATE
|
CURTAILMENT
2 DATE, BLANK IF NOT APPLICABLE
|
DD-MMM-YY
|
||
|
CURT2ADJ
|
CURTAILMENT
2 ADJUSTMENT, .00 IF NOT APPLICABLE
|
Number
two decimals
|
||
|
LIQPRIN
|
PAYOFF,
LIQUIDATION PRINCIPAL, .00 IF NOT APPLICABLE
|
Number
two decimals
|
||
|
OTHPRIN
|
OTHER
PRINCIPAL, .00 IF NOT APPLICABLE
|
Number
two decimals
|
||
|
PRINREMIT
|
TOTAL
PRINCIPAL REMITTANCE AMOUNT, .00 IF NOT APPLICABLE
|
Number
two decimals
|
||
|
INTREMIT
|
NET
INTEREST REMIT, INCLUDE PAYOFF INTEREST, .00 IF NOT
APPLICABLE
|
Number
two decimals
|
||
|
TOTREMIT
|
TOTAL
REMITTANCE AMOUNT, .00 IF NOT APPLICABLE
|
Number
two decimals
|
||
|
ENDSCHEDBAL
|
ENDING
SCHEDULED BALANCE FOR SCHEDULED/SCHEDULED ENDING TRIAL BALANCE FOR
ACTUAL/ACTUAL .00 IF PAIDOFF, LIQUIDATED OR FULL CHARGEOFF
|
Number
two decimals
|
||
|
|
||||
|
ENDACTBAL
|
ENDING
TRIAL BALANCE .00 IF PAIDOFF, LIQUIDATED OR FULL CHARGEOFF
|
Number
two decimals
|
||
|
ENDDUEDATE
|
ENDING
ACTUAL DUE DATE, NOT LAST PAID INSTALLMENT
|
DD-MMM-YY
|
||
|
ACTCODE
|
60
IF PAIDOFF, BLANK IF NOT APPLICABLE
|
Number
no decimals
|
||
|
ACTDATE
|
ACTUAL
PAYOFF DATE, BLANK IF NOT APPLICABLE
|
DD-MMM-YY
|
||
|
INTRATE
|
INTEREST
RATE, REQUIRED
|
Number
seven decimals Example .0700000 for 7.00%
|
||
|
SFRATE
|
SERVICE
FEE RATE, REQUIRED
|
Number
seven decimals Example .0025000 for .25%
|
||
|
PTRATE
|
PASS
THRU RATE, REQUIRED
|
Number
seven decimals Example .0675000 for 6.75%
|
||
|
P&I
CONSTANT, REQUIRED .00 IF PAIDOFF
|
Number
two decimals
|
Exh.
F-1-1
EXHIBIT
F-2
STANDARD
LAYOUT FOR DEFAULTED LOAN REPORT
|
Data
Field
|
Format
|
Data
Description
|
||||||
|
%
of MI coverage
|
NUMBER(6,5)
|
The
percent of coverage provided by the PMI company in the event
of loss on a
defaulted loan.
|
||||||
|
Actual
MI claim filed date
|
DATE(MM/DD/YYYY)
|
Actual
date that the claim was submitted to the PMI company.
|
||||||
|
Actual
bankruptcy start date
|
DATE(MM/DD/YYYY)
|
Actual
date that the bankruptcy petition is filed with the
court.
|
||||||
|
Actual
MI claim amount filed
|
NUMBER(15,2)
|
The
amount of the claim that was filed by the servicer with the PMI
company.
|
||||||
|
Actual
discharge date
|
DATE(MM/DD/YYYY)
|
Actual
date that the Discharge Order is entered in the bankruptcy
docket.
|
||||||
|
Actual
due date
|
DATE(MM/DD/YYYY)
|
Actual
due date of the next outstanding payment amount due from the
mortgagor.
|
||||||
|
Actual
eviction complete date
|
DATE(MM/DD/YYYY)
|
Actual
date that the eviction proceedings are completed by local
counsel.
|
||||||
|
Actual
eviction start date
|
DATE(MM/DD/YYYY)
|
Actual
date that the eviction proceedings are commenced by local
counsel.
|
||||||
|
Actual
first legal date
|
DATE(MM/DD/YYYY)
|
Actual
date that foreclosure counsel filed the first legal action as
defined by
state statute.
|
||||||
|
Actual
redemption end date
|
DATE(MM/DD/YYYY)
|
Actual
date that the foreclosure redemption period expires.
|
||||||
|
Bankruptcy
chapter
|
VARCHAR2(2)
|
7=
Chapter 7 filed
12=
Chapter 12 filed
|
11=
Chapter 11 filed
13=
Chapter 13 filed
|
Chapter
of bankruptcy filed.
|
||||
|
Bankruptcy
flag
|
VARCHAR2(2)
|
Y=Active
Bankruptcy
|
N=No
Active Bankruptcy
|
Servicer
defined indicator that identifies that the property is an asset
in an
active bankruptcy case.
|
||||
|
Bankruptcy
Case Number
|
VARCHAR2(15)
|
The
court assigned case number of the bankruptcy filed by a party
with
interest in the property.
|
||||||
|
MI
claim amount paid
|
NUMBER(15,2)
|
The
amount paid to the servicer by the PMI company as a result of
submitting
an MI claim.
|
||||||
Exh.F-2-1
|
MI
claim funds received date
|
DATE(MM/DD/YYYY)
|
Actual
date that funds were received from the PMI company as a result
of
transmitting an MI claim.
|
||||||
|
Current
loan amount
|
NUMBER(10,2)
|
Current
unpaid principal balance of the loan as of the date of reporting
to Aurora
Master Servicing.
|
||||||
|
Date
FC sale scheduled
|
DATE(MM/DD/YYYY)
|
Date
that the foreclosure sale is scheduled to be held.
|
||||||
|
Date
relief/dismissal granted
|
DATE(MM/DD/YYYY)
|
Actual
date that the dismissal or relief from stay order is entered
by the
bankruptcy court.
|
||||||
|
Date
REO offer accepted
|
DATE(MM/DD/YYYY)
|
Actual
date of acceptance of an REO offer.
|
||||||
|
Date
REO offer received
|
DATE(MM/DD/YYYY)
|
Actual
date of receipt of an REO offer.
|
||||||
|
Delinquency
value
|
NUMBER(10,2)
|
Value
obtained typically from a BPO prior to foreclosure referral not
related to
loss mitigation activity.
|
||||||
|
Delinquency
value source
|
VARCHAR2(15)
|
BPO=
Broker's Price Opinion
|
Appraisal=Appraisal
|
Name
of vendor or management company that provided the delinquency
valuation
amount.
|
||||
|
Delinquency
value date
|
DATE(MM/DD/YYYY)
|
Date
that the delinquency valuation amount was completed by vendor
or property
management company.
|
||||||
|
Delinquency
flag
|
VARCHAR2(2)
|
Y=
90+ delinq. Not in FC, Bky or Loss mit
|
N=Less
than 90 days delinquent
|
Servicer
defined indicator that identifies that the loan is delinquent
but is not
involved in loss mitigation, foreclosure, bankruptcy or
REO.
|
||||
|
Foreclosure
flag
|
VARCHAR2(2)
|
Y=Active
foreclosure
|
N=No
active foreclosure
|
Servicer
defined indicator that identifies that the loan is involved in
foreclosure
proceedings.
|
||||
|
Corporate
expense balance
|
NUMBER(10,2)
|
Total
of all cumulative expenses advanced by the servicer for non-escrow
expenses such as but not limited to: FC fees and costs, bankruptcy
fees
and costs, property preservation and property
inspections.
|
||||||
Exh.F-2-2
|
Foreclosure
attorney referral date
|
DATE(MM/DD/YYYY)
|
Actual
date that the loan was referred to local counsel to begin foreclosure
proceedings.
|
||||||
|
Foreclosure
valuation amount
|
NUMBER(15,2)
|
Value
obtained during the foreclosure process. Usually as a result
of a BPO and
typically used to calculate the bid.
|
||||||
|
Foreclosure
valuation date
|
DATE(MM/DD/YYYY)
|
Date
that foreclosure valuation amount was completed by vendor or
property
management company.
|
||||||
|
Foreclosure
valuation source
|
VARCHAR2(80)
|
BPO=
Broker's Price Opinion
|
Appraisal=Appraisal
|
Name
of vendor or management company that provided the foreclosure
valuation
amount.
|
||||
|
FHA
27011A transmitted date
|
DATE(MM/DD/YYYY)
|
Actual
date that the FHA 27011A claim was submitted to HUD.
|
||||||
|
FHA
27011 B transmitted date
|
DATE(MM/DD/YYYY)
|
Actual
date that the FHA 27011B claim was submitted to HUD.
|
||||||
|
VA
LGC/ FHA Case number
|
VARCHAR2(15)
|
Number
that is assigned individually to the loan by either HUD or VA
at the time
of origination. The number is located on the Loan Guarantee Certificate
(LGC) or the Mortgage Insurance Certificate (MIC).
|
||||||
|
FHA
Part A funds received date
|
DATE(MM/DD/YYYY)
|
Actual
date that funds were received from HUD as a result of transmitting
the
27011A claim.
|
||||||
|
Foreclosure
actual sale date
|
DATE(MM/DD/YYYY)
|
Actual
date that the foreclosure sale was held.
|
||||||
|
Servicer
loan number
|
VARCHAR2(15)
|
Individual
number that uniquely identifies loan as defined by
servicer.
|
||||||
|
Loan
type
|
VARCHAR2(2)
|
1=FHA
Residential
3=Conventional
w/o PMI
5=FHA
Project
7=HUD
235/265
9=Farm
Loan
S=Sub
prime
|
2=VA
Residential
4=Commercial
6=Conventional
w/PMI
8=Daily
Simple Interest Loan
U=Unknown
|
Type
of loan being serviced generally defined by the existence of
certain types
of insurance. (i.e.: FHA, VA, conventional insured, conventional
uninsured, SBA, etc.)
|
||||
|
Loss
mit approval date
|
DATE(MM/DD/YYYY)
|
The
date determined that the servicer and mortgagor agree to pursue
a defined
loss mitigation alternative.
|
||||||
Exh.F-2-3
|
Loss
mit flag
|
VARCHAR2(2)
Y= Active loss mitigation N=No active loss mitigation
|
Servicer
defined indicator that identifies that the loan is involved in
completing
a loss mitigation alternative.
|
||||||
|
Loss
mit removal date
|
DATE(MM/DD/YYYY)
|
The
date that the mortgagor is denied loss mitigation alternatives
or the date
that the loss mitigation alternative is completed resulting in
a current
or liquidated loan.
|
||||||
|
Loss
mit type
|
VARCHAR2(2)
|
L=
Loss Mitigation
NP=Pending
non-performing sale
DI=
Deed in lieu
MO=Modification
SH=Short
sale
|
LT=Litigation
pending
CH=
Charge off
FB=
Forbearance plan
PC=Partial
claim
VA=VA
refunding
|
The
defined loss mitigation alternative identified on the loss mit
approval
date.
|
||||
|
Loss
mit value
|
NUMBER(10,2)
|
Value
obtained typically from a BPO prior to foreclosure sale intended
to aid in
the completion of loss mitigation activity.
|
||||||
|
Loss
mit value date
|
DATE(MM/DD/YYYY)
|
Name
of vendor or management company that provided the loss mitigation
valuation amount.
|
||||||
|
Loss
mit value source
|
VARCHAR2(15)
|
BPO=
Broker's Price Opinion
|
Appraisal=Appraisal
|
Date
that the loss mitigation valuation amount was completed by vendor
or
property management company.
|
||||
|
MI
certificate number
|
VARCHAR2(15)
|
A
number that is assigned individually to the loan by the PMI company
at the
time of origination. Similar to the VA LGC/FHA Case Number in
purpose.
|
||||||
|
LPMI
Cost
|
NUMBER(7,7)
|
The
current premium paid to the PMI company for Lender Paid Mortgage
Insurance.
|
||||||
|
Occupancy
status
|
VARCHAR2(1)
|
O=Owner
occupied
U=Unknown
|
T=Tenant
occupied
V=Vacant
|
The
most recent status of the property regarding who if anyone is
occupying
the property. Typically a result of a routine property
inspection.
|
||||
|
First
Vacancy date/ Occupancy status date
|
DATE(MM/DD/YYYY)
|
The
date that the most recent occupancy status was determined. Typically
the
date of the most recent property inspection.
|
||||||
|
Original
loan amount
|
NUMBER(10,2)
|
Amount
of the contractual obligations (i.e.: note and mortgage/deed
of
trust).
|
||||||
Exh.F-2-4
|
Original
value amount
|
NUMBER(10,2)
|
Appraised
value of property as of origination typically determined through
the
appraisal process.
|
||||||
|
Origination
date
|
DATE(MM/DD/YYYY)
|
Date
that the contractual obligations (i.e.: note and mortgage/deed
of trust)
of the mortgagor was executed.
|
||||||
|
FHA
Part B funds received date
|
DATE(MM/DD/YYYY)
|
Actual
date that funds were received from HUD as a result of transmitting
the
27011B claim.
|
||||||
|
Post
petition due date
|
DATE(MM/DD/YYYY)
|
The
post petition due date of a loan involved in a chapter 13
bankruptcy.
|
||||||
|
Property
condition
|
VARCHAR2(2)
|
1=
Excellent
3=Average
5=Poor
|
2=Good
4=Fair
6=Very
poor
|
Physical
condition of the property as most recently reported to the servicer
by
vendor or property management company.
|
||||
|
Property
type
|
VARCHAR2(2)
|
1=Single
family
3=Condo
4=Multifamily
6=Prefabricated
B=Commercial
7=Mobile
home U=Unknown
A=Church
P=PUD
O=Co-op
M=Manufactured housing
CT=Condotel
MU=Mixed use
|
2=Town
house
5=Other
C=Land
only
D=Farm
R=Row
house
24=
2-4 family
|
Type
of property secured by mortgage such as: single family, 2-4 unit,
etc.
|
||||
|
Reason
for default
|
VARCHAR2(3)
|
001=Death
of principal mtgr
003=Illness
of mtgr's family member
004=Death
of mtgr's family member
006=Curtailment
of income
008=Abandonment
of property
011=Property
problem
013=Inability
to rent property
015=Other
017=Business
failure
022=Energy-Environment
costs
026=
Payment adjustment
029=Transfer
ownership pending
031=Unable
to contact borrower
|
02=Illness
of principal mtgr
005=Marital
difficulties
007=Excessive
obligations
009=Distant
employee transfer
012=Inability
to sell property
014=Military
service
016=Unemployment
019=Casualty
loss
023=
Servicing problems
027=Payment
dispute
030=Fraud
INC=Incarceration
|
Cause
of delinquency as identified by mortgagor.
|
||||
|
REO
repaired value
|
NUMBER(10,2)
|
The
projected value of the property that is adjusted from the "as
is" value
assuming necessary repairs have been made to the property as
determined by
the vendor/property management
company.
|
||||||
Exh.F-2-5
|
REO
list price adjustment amount
|
NUMBER(15,2)
|
The
most recent listing/pricing amount as updated by the servicer
for REO
properties.
|
||||||
|
REO
list price adjustment date
|
DATE(MM/DD/YYYY)
|
The
most recent date that the servicer advised the agent to make
an adjustment
to the REO listing price.
|
||||||
|
REO
value (as is)
|
NUMBER(10,2)
|
The
value of the property without making any repairs as determined
by the
vendor/property management company.
|
||||||
|
REO
actual closing date
|
DATE(MM/DD/YYYY)
|
The
actual date that the sale of the REO property closed
escrow.
|
||||||
|
REO
flag
|
VARCHAR2(7)
|
Y=Active
REO
|
N=No
active REO
|
Servicer
defined indicator that identifies that the property is now Real
Estate
Owned.
|
||||
|
REO
original list date
|
DATE(MM/DD/YYYY)
|
The
initial/first date that the property was listed with an agent
as an
REO.
|
||||||
|
REO
original list price
|
NUMBER(15,2)
|
The
initial/first price that was used to list the property with an
agent as an
REO.
|
||||||
|
REO
net sales proceeds
|
NUMBER(10,2)
|
The
actual REO sales price less closing costs paid. The net sales
proceeds are
identified within the HUD1 settlement statement.
|
||||||
|
REO
sales price
|
NUMBER(10,2)
|
Actual
sales price agreed upon by both the purchaser and servicer as
documented
on the HUD1 settlement statement.
|
||||||
|
REO
scheduled close date
|
DATE(MM/DD/YYYY)
|
The
date that the sale of the REO property is scheduled to close
escrow.
|
||||||
|
REO
value date
|
DATE(MM/DD/YYYY)
|
Date
that the vendor or management company completed the valuation
of the
property resulting in the REO value (as is).
|
||||||
|
REO
value source
|
VARCHAR2(15)
|
BPO=
Broker's Price Opinion
|
Appraisal=Appraisal
|
Name
of vendor or management company that provided the REO value (as
is).
|
||||
|
Repay
first due date
|
DATE(MM/DD/YYYY)
|
The
due date of the first scheduled payment due under a forbearance
or
repayment plan agreed to by both the mortgagor and
servicer.
|
||||||
|
Repay
next due date
|
DATE(MM/DD/YYYY)
|
The
due date of the next outstanding payment due under a forbearance
or
repayment plan agreed to by both the mortgagor and servicer.
|
||||||
Exh.F-2-6
|
Repay
plan broken/reinstated/closed date
|
DATE(MM/DD/YYYY)
|
The
servicer defined date upon which the servicer considers that
the plan is
no longer in effect as a result of plan completion or mortgagor's
failure
to remit payments as scheduled.
|
||||||
|
Repay
plan created date
|
DATE(MM/DD/YYYY)
|
The
date that both the mortgagor and servicer agree to the terms
of a
forbearance or repayment plan.
|
||||||
|
SBO
loan number
|
NUMBER(9)
|
Individual
number that uniquely identifies loan as defined by Aurora Master
Servicing.
|
||||||
|
Escrow
balance/advance balance
|
NUMBER(10,2)
|
The
positive or negative account balance that is dedicated to payment
of
hazard insurance, property taxes, MI, etc. (escrow items
only)
|
||||||
|
Title
approval letter received date
|
DATE(MM/DD/YYYY)
|
The
actual date that the title approval was received as set forth
in the HUD
title approval letter.
|
||||||
|
Title
package HUD/VA date
|
DATE(MM/DD/YYYY)
|
The
actual date that the title package was submitted to either HUD
or
VA.
|
||||||
|
VA
claim funds received date
|
DATE(MM/DD/YYYY)
|
The
actual date that funds were received by the servicer from the
VA for the
expense claim submitted by the servicer.
|
||||||
|
VA
claim submitted date
|
DATE(MM/DD/YYYY)
|
The
actual date that the expense claim was submitted by the servicer
to the
VA.
|
||||||
|
VA
first funds received amount
|
NUMBER(15,2)
|
The
amount of funds received by the servicer from VA as a result
of the
specified bid.
|
||||||
|
VA
first funds received date
|
DATE(MM/DD/YYYY)
|
The
date that the funds from the specified bid were received by the
servicer
from the VA.
|
||||||
|
VA
XXX submitted date
|
DATE(MM/DD/YYYY)
|
Actual
date that the Notice of Election to Convey was submitted to the
VA.
|
||||||
|
Zip
Code
|
VARCHAR2(5)
|
US
postal zip code that corresponds to property
location.
|
||||||
Exh.F-2-7
|
FNMA
Delinquency status code
|
VARCHAR2(3)
09=Forbearance
24=Drug
seizure
28=Modification
31=Probate
44=Deed-in-lieu
62=VA
no-bid
65=Ch.
7 bankruptcy
|
26=Refinance
29=Charge-off
32=Military
indulgence
49=Assignment
63=VA
Refund
66=Ch.
11 bankruptcy
|
17=Preforeclosure
sale
27=Assumption
30=Third-party
sale
43=Foreclosure
61=Second
lien considerations
64=VA
Buydown
67=Ch.
13 bankruptcy
|
The
code that is electronically reported to FNMA by the servicer
that reflects
the current defaulted status of a loan. (i.e.: 65, 67, 43 or
44)
|
||||
|
FNMA
delinquency reason code
|
VARCHAR2(3)
|
001=Death
of principal mtgr
003=Illness
of mtgr's family member
005=Marital
difficulties
007=Excessive
obligations
009=Distant
employee transfer
012=Inability
to sell property
014=Military
service
016=Unemployment
019=Casualty
loss
023=
Servicing problems
027=Payment
dispute
030=Fraud
INC=Incarceration
|
002=Illness
of principal mtgr
004=Death
of mtgr's family member
006=Curtailment
of income
008=Abandonment
of property
011=Property
problem
013=Inability
to rent property
015=Other
017=Business
failure
022=Energy-Environment
costs
026=
Payment adjustment
029=Transfer
ownership pending
031=Unable
to contact borrower
|
The
code that is electronically reported to FNMA by the servicer
that
describes the circumstance that appears to be the primary contributing
factor to the delinquency.
|
||||
|
Suspense
balance
|
NUMBER(10,2)
|
Money
submitted to the servicer, credited to the mortgagor's account
but not
allocated to principal, interest, escrow, etc.
|
||||||
|
Restricted
escrow balance
|
NUMBER(10,2)
|
Money
held in escrow by the mortgage company through completion of
repairs to
property.
|
||||||
|
Investor
number
|
NUMBER
(10,2)
|
Unique
number assigned to a group of loans in the servicing system.
|
||||||
Exh.F-2-8
EXHIBIT
G
RESERVED
Exh.
G-1
EXHIBIT
H
SELLER’S
OFFICER’S CERTIFICATE
I,
____________________, hereby certify that I am the duly elected [Vice] President
of GreenPoint Mortgage Funding, Inc., a corporation organized under the laws
of
the state of [_______], (the “Seller”) and further as follows:
|
1.
|
Attached
hereto as Exhibit 1 is a true, correct and complete copy of the
certificate of incorporation of the Seller which is in full force
and
effect on the date hereof and which has been in effect without amendment,
waiver, rescission or modification.
|
|
2.
|
Attached
hereto as Exhibit 2 is a true, correct and complete copy of the bylaws
of
the Seller which are in effect on the date hereof and which have
been in
effect without amendment, waiver, rescission or
modification.
|
|
3.
|
Attached
hereto as Exhibit 3 is an original certificate of good standing of
the
Seller issued within ten days of the date hereof, and no event has
occurred since the date thereof which would impair such
standing.
|
|
4.
|
Attached
hereto as Exhibit 4 is a true, correct and complete copy of the corporate
resolutions of the Board of Directors of the Seller authorizing the
Seller
to execute and deliver each of the Amended and Restated Flow Mortgage
Loan
Purchase, Warranties and Servicing Agreement, Group No. 2006-FLOW
dated
January 1, 2007, by and between the Seller and Xxxxxx Brothers Bank,
FSB
(the “Purchaser”) (the “Purchase Agreement”) and to endorse the Mortgage
Notes and execute the Assignments of Mortgages by original signature,
and
such resolutions are in effect on the date hereof and have been in
effect
without amendment, waiver, rescission or
modification.
|
|
5.
|
Either
(i) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery
and
performance by the Seller of or compliance by the Seller with the
Purchase
Agreement, the sale of the mortgage loans or the consummation of
the
transactions contemplated by the agreements; or (ii) any required
consent,
approval, authorization or order has been obtained by the
Seller.
|
|
6.
|
Neither
the consummation of the transactions contemplated by, nor the fulfillment
of the terms of the Purchase Agreement conflicts or will conflict
with or
results or will result in a breach of or constitutes or will constitute
a
default under the charter or by-laws of the Seller, the terms of
any
indenture or other agreement or instrument to which the Seller is
a party
or by which it is bound or to which it is subject, or any statute
or
order, rule, regulations, writ, injunction or decree of any court,
governmental authority or regulatory body to which the Seller is
subject
or by which it is bound.
|
Exh.H-1
|
7.
|
There
is no action, suit, proceeding or investigation pending or, to the
best of
my knowledge, threatened against the Seller which, in my judgment,
either
in any one instance or in the aggregate, may result in any material
adverse change in the business, operations, financial condition,
properties or assets of the Seller or in any material impairment
of the
right or ability of the Seller to carry on its business substantially
as
now conducted or in any material liability on the part of the Seller
or
which would draw into question the validity of the Purchase Agreement
or
the mortgage loans or of any action taken or to be taken in connection
with the transactions contemplated hereby, or which would be likely
to
impair materially the ability of the Seller to perform under the
terms of
the Purchase Agreement.
|
|
8.
|
Each
person listed on Exhibit 5 attached hereto who, as an officer or
representative of the Seller, signed (a) the Purchase Agreement and
(b)
any other document delivered prior hereto or on the date hereof in
connection with any purchase described in the agreements set forth
above
was, at the respective times of such signing and delivery, and is
now, a
duly elected or appointed, qualified and acting officer or representative
of the Seller, who holds the office set forth opposite his or her
name on
Exhibit 5, and the signatures of such persons appearing on such documents
are their genuine signatures.
|
|
9.
|
The
Seller is duly authorized to engage in the transactions described
and
contemplated in the Purchase
Agreement.
|
|
10.
|
The
Mortgage Loans are not subject to any security interest, claim, pledge,
hypothecation or lien.
|
Exh.H-2
IN
WITNESS WHEREOF, I have hereunto signed my name and affixed the seal of the
Seller.
|
Dated:
________________________________________________
|
By:
|
||
|
[Seal]
|
Name: ________________________ |
||
|
Title:
[Vice] President
|
|||
I,
________________________, an [Assistant] Secretary of GreenPoint Mortgage
Funding, Inc., hereby certify that ____________ is the duly elected, qualified
and acting [Vice] President of the Seller and that the signature appearing
above
is [her] [his] genuine signature.
IN
WITNESS WHEREOF, I have hereunto signed my name.
|
Dated:
________________________________________________
|
By:
|
||
|
[Seal]
|
Name: ________________________ |
||
|
Title:
[Vice] President
|
|||
Exh.H-3
EXHIBIT
5
to
Seller’s
Officer’s Certificate
|
Name
|
Title
|
Signature
|
||
|
________________________
________________________
________________________
________________________
________________________
|
Exh.H-4
EXHIBIT
I
FORM
OF
OPINION OF COUNSEL TO THE SELLER
(date)
Xxxxxx
Brothers Bank, FSB
000
Xxxxxxx Xxxxxx
0xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Ladies
and Gentlemen:
I
have
acted as counsel to GreenPoint Mortgage Funding, Inc., a New York corporation
(the “Company”), with respect to certain matters in connection with the sale by
the Company of the Mortgage Loans pursuant to that certain Amended and Restated
Flow Mortgage Loan Purchase, Warranties and Servicing Agreement by and between
the Company and Xxxxxx Brothers Bank, FSB (the “Purchaser”), Group No. 2006-FLOW
dated as of January 1, 2007 (the “Agreement”) which sale is in the form of whole
loans, serviced pursuant thereto. 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 as being true copies of the following:
|
A.
|
Signed
copies of the Agreement;
|
|
B.
|
The
Company’s Certificate of Incorporation
|
| C. |
The
Company’s By-Laws; and
|
|
D.
|
Resolutions
adopted by the Board of Directors of the
Company.
|
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:
|
1.
|
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
execute, deliver, and perform its obligations under the
Agreement.
|
Exh.I-1
2. The
Agreement has been duly and validly authorized, executed and delivered by the
Company.
3. The
Agreement constitutes valid, legal and binding obligations of the Company,
enforceable against the Company in accordance with their respective
terms.
4. No
consent, approval, authorization or order of any United States federal or
California government authority on the part of the Company is required for
the
execution, delivery and performance by the Company of the Agreement, except
for
those consents, approvals, authorizations or orders which previously have been
obtained.
5. The
execution, delivery and performance of the Agreement will not, as of the Closing
Date, result in a violation of the Certificate of Incorporation or By-Laws
of
the Company, or, to the best of my knowledge, result in a violation of, or
constitute a default under, (i) the terms of any indenture or other agreement
or
instrument known to me to which the Company is a party or by which it is bound,
(ii) any California or United States federal statute or regulation applicable
to
the Company, or (iii) any order of any State of California or United States
federal court, regulatory body, administrative agency or governmental body
having jurisdiction over the Company, except in any such case where the
violation or default would not have a material adverse effect on the Company
or
its ability to perform its obligations under the Agreement.
6. There
is
no action, suit, proceeding or investigation pending or, to the best of my
knowledge, threatened against the Company which, in my judgment, would draw
into
question the validity of the Agreement or which would be likely to impair
materially the ability of the Company to perform under the terms of the
Agreement.
The
opinions above are subject to the following additional assumptions, exceptions,
qualifications and limitations:
A. I
have
assumed that all parties to the Agreement other than the Company have all
requisite power and authority to execute, deliver and perform their respective
obligations under the Agreement, and that the Agreement has been duly authorized
by all necessary corporate action on the part of such parties, have been
executed and delivered by such parties and constitute the legal, valid and
binding obligations of such parties.
B. My
opinion expressed in paragraph 3 above is subject to the qualifications that
(i)
the enforceability of the Agreement may be limited by the effect of laws
relating to (1) bankruptcy, reorganization, insolvency, moratorium or other
similar laws now or hereafter in effect relating to creditors’ rights generally,
including, without limitation, the effect of statutory or other laws regarding
fraudulent conveyances or preferential transfers, and (2) general principles
of
equity upon the specific enforceability of any of the remedies, covenants or
other provisions of the Agreement 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 provisions for indemnification in the Agreement to the extent such provisions
may be held to be unenforceable as contrary to public policy.
Exh.I-2
C. My
opinion expressed in paragraph 5 above relating to violations of United States
federal and California statutes, regulations or orders applicable to the Company
is limited to such statutes, regulations or orders that in my experience are
typically applicable to a transaction of the nature contemplated by the
Agreement.
D. I
have
assumed, without independent check or certification, that there are no
agreements or understandings among the Company and any other party, which would
expand, modify or otherwise affect the terms of the Agreements or the respective
rights or obligations of the parties thereunder.
I
note
that the Agreement provides that it is governed by the laws of the State of
New
York. I am admitted to practice in the State of California. I have assumed
that
the laws of California and New York are identical for the purpose of the
opinions provided herein, and I render no opinion herein as to matters involving
or governed by the laws of any jurisdiction other than the State of California
and the federal laws of the United States of America. I also express no opinion
as to whether the laws of any particular jurisdiction apply, and no opinion
to
the extent that the laws of any jurisdiction other than those identified above
are applicable to the Agreements.
This
opinion letter has been prepared and should be understood in accordance with
the
Legal
Opinion Principles,
53 Bus.
Law. 831 (1998), and Guidelines
for the Preparation of Closing Opinions,
57 Bus.
Law. 345 (2001), of the Committee on Legal Opinions, ABA Section of Business
Law.
|
Very
truly yours,
|
|||
|
|
|||
|
Xxxxx
X. Xxxxxxx
General
Counsel
GreenPoint
Mortgage Funding, Inc.
|
Exh.I-3
EXHIBIT
J-1
SECURITY
RELEASE CERTIFICATION
___________________,
200_
Federal
Home Loan Bank of
______(the
“Association”)
_______________________________
_______________________________
_______________________________
Attention:
___________________________
_______________________________
|
Re:
|
Notice
of Sale and Release of
Collateral
|
Dear
Sirs:
This
letter serves as notice that GreenPoint Mortgage Funding, Inc., a corporation
formed pursuant to the laws of the state of [_______] (the “Seller”) has
committed to sell to Xxxxxx Brothers Bank, FSB under an Amended and Restated
Flow Mortgage Loan Purchase, Warranties and Servicing Agreement Group No.
2006-FLOW, dated as of January 1, 2007, certain mortgage loans originated by
the
Seller. The Seller warrants that the mortgage loans to be sold to Xxxxxx
Brothers Bank, FSB on this date pursuant to the Acknowledgment and Conveyance
Agreement dated as of ________ (the “Related Loans”) are in addition to and
beyond any collateral required to secure advances made by the Association to
the
Seller.
The
Seller acknowledges that the Related Loans shall not be used as additional
or
substitute collateral for advances made by the Association. Xxxxxx Brothers
Bank, FSB understands that the balance of the Seller’s mortgage loan portfolio
may be used as collateral or additional collateral for advances made by the
Association, and confirms that it has no interest therein.
Exh.J-1-1
Execution
of this letter by the Association shall constitute a full and complete release
of any security interest, claim, or lien which the Association may have against
the Related Loans.
|
Very
truly yours,
GreenPoint
Mortgage Funding, Inc.
|
||
| |
|
|
| By: | ||
|
Name:
|
||
|
Title:
|
||
|
Date:
|
||
|
Acknowledged
and approved:
|
|||
|
FEDERAL
HOME LOAN BANK OF
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
Date:
|
Exh.J-1-2
EXHIBIT
J-2
SECURITY
RELEASE CERTIFICATION
I.
Release
of Security Interest
The
financial institution named below hereby relinquishes any and all right, title
and interest it may have in all Mortgage Loans to be purchased by Xxxxxx
Brothers Bank, FSB from the Seller named below pursuant to that certain Amended
and Restated Flow Mortgage Loan Purchase, Warranties and Servicing Agreement,
Group No. 2006-FLOW, dated as of January 1, 2007 and certifies that all notes,
mortgages, assignments and other documents in its possession relating to such
Mortgage Loans have been delivered and released to the Seller named below or
its
designees, as of the date and time of the sale of such Mortgage Loans to Xxxxxx
Brothers Bank, FSB pursuant to the Acknowledgment and Conveyance Agreement
dated
as of __________.
Name
and
Address of Financial Institution
_______________________________________
(name)
_______________________________________
(Address)
By:
_________________________________________
Exh.J-2-1
II.
Certification
of Release
The
Seller named below hereby certifies to Xxxxxx Brothers Bank, FSB, that, as
of
the date and time of the sale of the above-mentioned Mortgage Loans to Xxxxxx
Brothers Bank, FSB, the security interests in the Mortgage Loans released by
the
above-named financial institution comprise all security interests relating
to or
affecting any and all such Mortgage Loans. The Seller warrants that, as of
such
time, there are and will be no other security interests affecting any or all
of
such Mortgage Loans.
|
GreenPoint
Mortgage Funding, Inc.
|
||
| |
|
|
| By: | ||
|
Name:
|
||
|
Date:
|
||
Exh.J-2-2
EXHIBIT
K
FORM
OF
ANNUAL CERTIFICATION
|
Re:
|
The
[ ] agreement dated as of [ ], 200[ ] (the “Agreement”), among [IDENTIFY
PARTIES]
|
I,
________________________________, the _______________________ of [NAME OF
COMPANY], certify to [the Purchaser], [the Depositor], and the [Master Servicer]
[Securities Administrator] [Trustee], and their officers, with the knowledge
and
intent that they will rely upon this certification, that:
(1) I
have
reviewed the servicer compliance statement of the Company provided in accordance
with Item 1123 of Regulation AB (the “Compliance Statement”), the report on
assessment of the Company’s compliance with the servicing criteria set forth in
Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided in accordance
with Rules 13a-18 and 15d-18 under Securities Exchange Act of 1934, as amended
(the “Exchange Act”) and Item 1122 of Regulation AB (the “Servicing
Assessment”), the registered public accounting firm’s attestation report
provided in accordance with Rules 13a-18 and 15d-18 under the Exchange Act
and
Section 1122(b) of Regulation AB (the “Attestation
Report”), and all servicing reports, officer’s certificates and other
information relating to the servicing of the Mortgage Loans by the Company
during 200[ ] that were delivered by the Company to the [Depositor] [Master
Servicer] [Securities Administrator] [Trustee] pursuant to the Agreement
(collectively, the “Company Servicing Information”);
(2) Based
on
my knowledge, the Company Servicing Information, taken as a whole, does not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances under
which such statements were made, not misleading with respect to the period
of
time covered by the Company Servicing Information;
(3) Based
on
my knowledge, all of the Company Servicing Information required to be provided
by the Company under the Agreement has been provided to the [Depositor] [Master
Servicer] [Securities Administrator] [Trustee];
(4) I
am
responsible for reviewing the activities performed by the Company as servicer
under the Agreement, and based on my knowledge and the compliance review
conducted in preparing the Compliance Statement and except as disclosed in
the
Compliance Statement, the Servicing Assessment or the Attestation Report, the
Company has fulfilled its obligations under the Agreement in all material
respects; and
(5) The
Compliance Statement required to be delivered by the Company pursuant to this
Agreement, and the Servicing Assessment and Attestation Report required to
be
provided by the Company and by any Subservicer or Subcontractor pursuant to
the
Agreement, have been provided to the [Depositor] [Master Servicer]. Any material
instances of noncompliance described in such reports have been disclosed to
the
[Depositor] [Master Servicer]. Any material instance of noncompliance with
the
Servicing Criteria has been disclosed in such reports.
Date: _________________________
By:
________________________________
Name:
Title:
Exh.K-1
EXHIBIT
L
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|||
|
Reference
|
Criteria
|
|
||
|
|
General
Servicing Considerations
|
|
||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
||
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
||
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
N/A
|
||
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
X
|
||
|
|
Cash
Collection and Administration
|
|||
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
||
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
||
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
X
|
||
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
||
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
||
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
X
|
||
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
X
|
||
Exh.
L-1
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|||
|
Reference
|
Criteria
|
|||
|
|
Investor
Remittances and Reporting
|
|||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
X
|
||
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
||
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
||
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
X
|
||
|
|
Pool
Asset Administration
|
|||
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the transaction
agreements or related mortgage loan documents.
|
X
|
||
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements
|
X
|
||
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
X
|
||
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow) in
accordance with the related mortgage loan documents.
|
X
|
||
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
X
|
||
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's mortgage loans
(e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
||
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
X
|
||
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
X
|
||
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
|
X
|
||
Exh.
L-2
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|||
|
Reference
|
Criteria
|
|||
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period specified
in
the transaction agreements; (B) interest on such funds is paid, or
credited, to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
X
|
||
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
X
|
||
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
X
|
||
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
X
|
||
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
||
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
N/A
|
||
Exh.
L-3
EXHIBIT
C
Assignment
and Assumption Agreement
C-1
EXHIBIT
D
Mortgage
Loan Schedule
[Retained
in a separate closing binder entitled “LXS 2007-9 Mortgage Loan Schedules” at
the Washington, D.C. office of XxXxx Xxxxxx LLP]
D-1
EXHIBIT
E
TRANSACTION
PARTIES
Sponsor
and Seller: Xxxxxx Brothers Holdings Inc.
Depositor:
Structured Asset Securities Corporation
Trustee:
LaSalle Bank National Association
Securities
Administrator: None
Master
Servicer: Aurora Loan Services LLC
Certificate
Insurer: None
PMI
Insurer(s): None
Group
1
Interest Rate Swap Counterparty: ABN Amro Bank N.V.
Group
1
Interest Rate Cap Counterparty: ABN Amro Bank N.V.
Group
2
Interest Rate Cap Counterparty: Xxxxxx Brothers Special Financing
Inc.
Primary
Servicer(s): Aurora Loan Services LLC, GreenPoint Mortgage Funding, Inc. and
IndyMac Bank, F.S.B.
Primary
Originator(s): Xxxxxx Brothers Bank, FSB, GreenPoint Mortgage Funding, Inc.
and
IndyMac Bank, F.S.B.
Custodian(s):
U.S. Bank National Association, LaSalle Bank National Association, Deutsche
Bank
National Trust Company and Xxxxx Fargo Bank, N.A.
E-1
EXHIBIT
F
[Date]
FORM
OF
ANNUAL CERTIFICATION
|
Re:
|
The
Reconstituted Servicing Agreement dated as of May 1, 2007 (the
“Agreement”), by and between Xxxxxx Brothers Holdings Inc. and GreenPoint
Mortgage Funding, Inc. (the “Servicer”), and acknowledged by Aurora Loan
Services LLC (the “Master Servicer”) and LaSalle Bank National
Association, as Trustee (the “Trustee”).
|
I,
[identify the certifying individual], the [title] of the Servicer, certify
to
the Trustee, the Master Servicer and Structured Asset Securities Corporation
(the “Depositor”), 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 Company’s compliance with the servicing criteria set
forth in Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided in
accordance with Rules 13a-18 and 15d-18 under Securities Exchange Act of 1934,
as amended (the “Exchange Act”) and Item 1122 of Regulation AB (the “Servicing
Assessment”), the registered public accounting firm’s attestation report
provided in accordance with Rules 13a-18 and 15d-18 under the Exchange Act
and
Section 1122(b) of Regulation AB (the “Attestation Report”), and all 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 any of the Depositor, the Master Servicer and the Trustee pursuant
to the Agreement (collectively, the “Company Servicing
Information”);
(2) Based
on
my knowledge, the Company Servicing Information, taken as a whole, does not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances under
which such statements were made, not misleading with respect to the period
of
time covered by the Company Servicing Information;
(3) Based
on
my knowledge, all of the Company Servicing Information required to be provided
by the Company under the Agreement has been provided to the Depositor, the
Master Servicer and the 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 in all material
respects; and
F-1
(5) The
Compliance Statement required to be delivered by the Servicer pursuant to the
Agreement, and the Servicing Assessment and Attestation Report required to
be
provided by the Servicer and by any Subservicer or Subcontractor pursuant to
the
Agreement, have been provided to the Depositor, the Master Servicer and the
Trustee. Any material instances of noncompliance described in such reports
have
been disclosed to the Depositor, the Master Servicer and the Trustee. Any
material instance of noncompliance with the Servicing Criteria has been
disclosed in such reports.
|
Date: _________________________ |
||
| By: | ||
|
Name:
Title:
|
||
F-2
EXHIBIT
G
SERVICING
CRITERIA TO BE ADDRESSED IN REPORT ON
ASSESSMENT
OF COMPLIANCE
The
Servicer shall address, at a minimum, the criteria identified as below as
“Applicable Servicing Criteria”, as identified by a xxxx in the column titled
“Applicable Servicing Criteria”:
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|||
|
Reference
|
Criteria
|
|
||
|
|
General
Servicing Considerations
|
|
||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
||
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
||
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
|||
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
X
|
||
|
|
Cash
Collection and Administration
|
|||
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
||
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
||
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
X
|
||
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
||
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
||
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
X
|
||
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
X
|
||
G-1
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|||
|
Reference
|
Criteria
|
|||
|
|
Investor
Remittances and Reporting
|
|||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
X
|
||
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
||
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
||
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
X
|
||
|
|
Pool
Asset Administration
|
|||
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the transaction
agreements or related mortgage loan documents.
|
X
|
||
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements
|
X
|
||
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
X
|
||
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow) in
accordance with the related mortgage loan documents.
|
X
|
||
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
X
|
||
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's mortgage loans
(e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
||
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
X
|
||
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
X
|
||
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
|
X
|
G-2
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|||
|
Reference
|
Criteria
|
|||
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period specified
in
the transaction agreements; (B) interest on such funds is paid, or
credited, to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
X
|
||
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
X
|
||
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
X
|
||
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
X
|
||
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
||
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
G-3
