PURCHASE, WARRANTIES and SERVICING AGREEMENT Between MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC. as Purchaser and SUNTRUST MORTGAGE, INC. as Seller Dated as of July 1, 2007
Exhibit
99.2
EXECUTION
COPY
PURCHASE,
WARRANTIES and SERVICING AGREEMENT
Between
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
as
Purchaser
and
SUNTRUST
MORTGAGE, INC. as Seller
Dated
as
of July 1, 2007
TABLE
OF
CONTENTS
Page
|
ARTICLE
I DEFINITIONS
|
1
|
|
|
Section
1.01
|
Defined
Terms.
|
1
|
|
ARTICLE
II SERVICING OF MORTGAGE LOANS; RECORD TITLE AND POSSESSION
OF
MORTGAGE FILES; BOOKS AND RECORDS; DELIVERY OF MORTGAGE LOAN
DOCUMENTS
|
14
|
|
|
Section
2.01
|
Agreement
to Purchase.
|
14
|
|
Section
2.02
|
Purchase
Price.
|
14
|
|
Section
2.03
|
Servicing
of Mortgage Loans.
|
15
|
|
Section
2.04
|
Record
Title and Possession of Mortgage Files; Maintenance of Servicing
Files.
|
15
|
|
Section
2.05
|
Books
and Records.
|
16
|
|
Section
2.06
|
Transfer
of Mortgage Loans.
|
16
|
|
Section
2.07
|
Examination
of Mortgage Files; Delivery of Mortgage Loan Documents.
|
17
|
|
Section
2.08
|
Quality
Control Procedures.
|
19
|
|
ARTICLE
III REPRESENTATIONS AND WARRANTIES OF THE SELLER; REPURCHASE;
REVIEW OF MORTGAGE LOANS
|
19
|
|
|
Section
3.01
|
Representations
and Warranties of the Seller.
|
19
|
|
Section
3.02
|
Representations
and Warranties as to Individual Mortgage Loans.
|
21
|
|
Section
3.03
|
Repurchase;
Substitution; Set-off.
|
27
|
|
Section
3.04
|
Repurchase
of Convertible Mortgage Loans.
|
28
|
|
Section
3.05
|
Repurchase
of Mortgage Loans With Early Payment Defaults.
|
29
|
|
ARTICLE
IV ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
|
29
|
|
|
Section
4.01
|
Seller
to Act as Servicer.
|
29
|
|
Section
4.02
|
Collection
of Mortgage Loan Payments.
|
32
|
|
Section
4.03
|
Realization
Upon Defaulted Mortgage Loans.
|
32
|
|
Section
4.04
|
Establishment
of Custodial Accounts; Deposits in Custodial Accounts.
|
33
|
|
Section
4.05
|
Permitted
Withdrawals From the Custodial Account.
|
35
|
|
Section
4.06
|
Establishment
of Escrow Accounts; Deposits in Escrow Accounts.
|
36
|
|
Section
4.07
|
Permitted
Withdrawals From Escrow Account.
|
36
|
|
Section
4.08
|
Payment
of Taxes, Insurance and Other Charges; Maintenance of Primary Mortgage
Insurance Policies; Collections Thereunder.
|
37
|
|
Section
4.09
|
Transfer
of Accounts.
|
38
|
|
Section
4.10
|
Maintenance
of Hazard Insurance.
|
38
|
|
Section
4.11
|
Maintenance
of Mortgage Impairment Insurance Policy.
|
39
|
|
Section
4.12
|
Fidelity
Bond, Errors and Omissions Insurance.
|
39
|
i
|
Section
4.13
|
Title,
Management and Disposition of REO Property.
|
40
|
|
Section
4.14
|
Notification
of Maturity Date.
|
42
|
|
Section
4.15
|
Notification
of Adjustments.
|
42
|
|
Section
4.16
|
Compliance
with REMIC Provisions.
|
42
|
|
ARTICLE
V PAYMENTS TO THE PURCHASER
|
43
|
|
|
Section
5.01
|
Distributions.
|
43
|
|
Section
5.02
|
Statements
to the Purchaser.
|
43
|
|
Section
5.03
|
Monthly
Advances by the Seller.
|
44
|
|
Section
5.04
|
Liquidation
Reports.
|
45
|
|
ARTICLE
VI GENERAL SERVICING PROCEDURES
|
45
|
|
|
Section
6.01
|
Assumption
Agreements.
|
45
|
|
Section
6.02
|
Satisfaction
of Mortgages and Release of Mortgage Files.
|
46
|
|
Section
6.03
|
Servicing
Compensation.
|
47
|
|
Section
6.04
|
Annual
Statement as to Compliance; Annual Independent Certified Public
Accountants’ Servicing Report.
|
47
|
|
Section
6.05
|
RESERVED.
|
49
|
|
Section
6.06
|
Purchaser’s
Right to Examine Seller Records.
|
49
|
|
ARTICLE
VII REPORTS TO BE PREPARED BY SELLER
|
49
|
|
|
Section
7.01
|
Seller
Shall Provide Information as Reasonably Required.
|
49
|
|
ARTICLE
VIII THE SELLER
|
50
|
|
|
Section
8.01
|
Indemnification.
|
50
|
|
Section
8.02
|
Merger
or Consolidation of the Seller.
|
50
|
|
Section
8.03
|
Limitation
on Liability of the Seller and Others.
|
51
|
|
Section
8.04
|
Seller
Not to Assign or Resign.
|
51
|
|
Section
8.05
|
No
Transfer of Servicing.
|
51
|
|
ARTICLE
IX DEFAULT
|
52
|
|
|
Section
9.01
|
Events
of Default.
|
52
|
|
Section
9.02
|
Waiver
of Defaults.
|
53
|
|
ARTICLE
X TERMINATION
|
54
|
|
|
Section
10.01
|
Termination.
|
54
|
|
Section
10.02
|
Termination
Without Cause.
|
54
|
|
ARTICLE
XI MISCELLANEOUS PROVISIONS
|
54
|
|
|
Section
11.01
|
Successor
to the Seller.
|
54
|
|
Section
11.02
|
Amendment.
|
55
|
|
Section
11.03
|
Recordation
of Agreement.
|
55
|
|
Section
11.04
|
Governing
Law.
|
55
|
|
Section
11.05
|
Notices.
|
56
|
|
Section
11.06
|
Severability
of Provisions.
|
56
|
|
Section
11.07
|
Exhibits.
|
57
|
|
Section
11.08
|
General
Interpretive Principles.
|
57
|
ii
|
Section
11.09
|
Reproduction
of Documents.
|
57
|
|
Section
11.10
|
Recordation
of Assignments of Mortgage.
|
58
|
|
Section
11.11
|
Assignment
by Purchaser.
|
58
|
|
Section
11.12
|
No
Partnership.
|
58
|
|
Section
11.13
|
Execution;
Successors and Assigns.
|
58
|
|
Section
11.14
|
Entire
Agreement.
|
58
|
|
Section
11.15
|
No
Solicitation.
|
59
|
|
Section
11.16
|
Closing.
|
59
|
|
Section
11.17
|
Cooperation
of Seller with a Reconstitution.
|
61
|
|
Section
11.18
|
Financial
Statements.
|
62
|
|
Section
11.19
|
Mandatory
Delivery; Grant of Security Interest.
|
62
|
|
Section
11.20
|
Intention
of the Parties.
|
63
|
|
Section
11.21
|
Waivers.
|
63
|
|
Section
11.22
|
Further
Agreements.
|
63
|
|
Section
11.23
|
Reproduction
of Documents.
|
63
|
|
Section
11.24
|
No
Petition. Limited Recourse.
|
63
|
|
ARTICLE
XII COMPLIANCE WITH REGULATION AB
|
64
|
|
|
Section
12.01
|
Intent
of the Parties; Reasonableness.
|
64
|
|
Section
12.02
|
Additional
Representations and Warranties of the Seller.
|
65
|
|
Section
12.03
|
Information
to Be Provided by the Seller.
|
66
|
|
Section
12.04
|
Servicer
Compliance Statement.
|
71
|
|
Section
12.05
|
Report
on Assessment of Compliance and Attestation.
|
71
|
|
Section
12.06
|
Use
of Subservicers and Subcontractors.
|
72
|
|
Section
12.07
|
Indemnification;
Remedies.
|
73
|
|
Section
12.08
|
Third
Party Beneficiary.
|
76
|
|
EXHIBIT
A:
|
[RESERVED]
|
A-1
|
|
EXHIBIT
B:
|
CONTENTS
OF MORTGAGE FILE
|
B-1
|
|
EXHIBIT
C:
|
CUSTODIAL
ACCOUNT/ESCROW ACCOUNT LETTER AGREEMENTS
|
C-1
|
|
EXHIBIT
D:
|
UNDERWRITING
GUIDELINES AS OF INITIAL CLOSING DATE
|
D-1
|
|
EXHIBIT
E:
|
SELLER'S
OFFICER'S CERTIFICATE
|
E-1
|
|
EXHIBIT
F:
|
FORM
OF OPINION OF COUNSEL TO THE SELLER
|
F-1
|
|
EXHIBIT
G:
|
SECURITY
RELEASE CERTIFICATION
|
G-1
|
|
EXHIBIT
H1:
|
ASSIGNMENT
AND CONVEYANCE
|
H1-1
|
|
EXHIBIT
I:
|
[RESERVED]
|
I-1
|
|
EXHIBIT
J:
|
FORM
OF ANNUAL CERTIFICATION
|
J-1
|
|
EXHIBIT
K
|
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF
|
|
|
COMPLIANCE
|
K-1
|
iii
This
Purchase, Warranties and Servicing Agreement, dated as of July 1, 2007 is
executed between Mortgage Asset Securitization Transactions, Inc., a Delaware
corporation with offices at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx XX 00000
as
Purchaser (the “Purchaser”), and SunTrust Mortgage, Inc. a Virginia corporation
with offices at 000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000, as seller and
servicer (the “Seller”).
WHEREAS,
the Purchaser desires to purchase from the Seller and the Seller desires to
sell
to the Purchaser, from time to time, certain Mortgage Loans that shall be
specified on (i) the related Mortgage Loan Schedule attached to the related
Assignment & Conveyance in the form attached hereto as Exhibit H1, pursuant
to the terms of a related letter agreement by and between the Seller and the
Purchaser each, a “Purchase Price and Terms Letter”);
WHEREAS,
each of the Mortgage Loans is secured by a mortgage, deed of trust or other
security instrument creating a first lien on a residential dwelling located
in
the jurisdiction indicated on (i) the related Mortgage Loan Schedule, which
is
to be annexed to the related Assignment and Conveyance in the form attached
hereto as Exhibit H1; and
WHEREAS,
the Purchaser and the Seller wish to prescribe the representations and
warranties of the Seller with respect to itself and the Mortgage Loans and
the
management, 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
|
Section
1.01
|
Defined
Terms.
|
Whenever
used in this Agreement, the following words and phrases, unless the context
otherwise requires, shall have the following meaning specified in this
Article:
Accepted
Servicing Practices: With respect to any Mortgage Loan, those
mortgage servicing practices (including collection procedures) of prudent
mortgage banking and 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 which are in accordance with applicable
law
and FNMA and/or FHLMC servicing practices and procedures.
Agreement: This
Purchase, Warranties and Servicing Agreement including all exhibits hereto,
amendments hereof and supplements hereto.
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.
Assignment: An
individual assignment of the Mortgage, notice of transfer or equivalent
instrument, in recordable form, sufficient under the laws of the jurisdiction
wherein the related Mortgaged Property is located to reflect of record the
sale
or transfer of the Mortgage Loan.
Assignment
and Conveyance: An assignment and conveyance of the Mortgage Loans
purchased on a Closing Date in the form annexed hereto as Exhibit
H1.
Business
Day: Any day other than: (i) a Saturday or Sunday, or (ii)
a legal holiday in the Commonwealth of Virginia or in the state of New York,
or
(iii) a day on which banks in the Commonwealth of Virginia or in the state
of
New York are authorized or obligated by law or executive order to be
closed.
Closing
Date: The date or dates, set forth in the related Purchase Price and
Terms Letter, on which, from time to time, the Purchaser shall purchase and
the
Seller shall sell the Mortgage Loans listed on the related Mortgage Loan
Schedule.
Code: The
Internal Revenue Code of 1986, as amended.
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.
Commission: The
United States Securities and Exchange Commission.
Convertible
Mortgage Loan: Any individual adjustable rate Mortgage Loan purchased
pursuant to this Agreement which contains a provision whereby the Mortgagor
is
permitted to convert the Mortgage Loan to a fixed rate Mortgage Loan in
accordance with the terms of the related Mortgage Note.
Credit
Score: The credit score for each Mortgage Loan shall be the minimum
of two credit bureau scores obtained at origination or such other time by the
Seller. If two credit bureau scores are obtained, the Credit Score
will be the lower score. If three credit bureau scores are obtained,
the Credit Score will be the middle of the three. When there is more
than one applicant, the lowest of the applicants Credit Scores will be
used. There is only one (1) score for any loan regardless of the
number of borrowers and/or applicants. The minimum Credit Score for
all Mortgage Loans will be in accordance with the Underwriting Guidelines (as
defined below).
Custodial
Account: Each separate demand account or accounts created and
maintained pursuant to Section 4.04 and shall be established at an Eligible
Institution, in the name of the Person that is the “Purchaser” with respect to
the related Mortgage Loans. Such accounts shall be held as a special
deposit by the depository institution maintaining the related accounts in a
fiduciary capacity, separate and apart from its funds or general assets and
shall not be held in any capacity that would create a debtor-creditor
relationship between the depository institution maintaining the accounts and
the
Seller or the Purchaser.
2
Cut-off
Date: The first day of the month in which the related Closing Date
occurs, or such other date as shall be specified in the related Purchase Price
and Terms Letter.
Depositor: With
respect to any Securitization Transaction, the person identified in writing
to
the Seller by the Purchaser as the depositor for such transaction.
Determination
Date: The 15th day (or
if such
15th day is
not
a Business Day, the Business Day immediately preceding such 15th day) of
the month
of the related Remittance Date.
Due
Date: The day of the month on which the Monthly Payment is due on a
Mortgage Loan, exclusive of any days of grace.
Due
Period: With respect to any Remittance Date, the period commencing on
the second day of the month preceding the month of such Remittance Date and
ending on the first day of the month of the Remittance Date.
Electronically: As
it applies to any record, communication, data, signature, including but not
limited to any manifestation of assent, such as “clicking” on an on screen icon,
word or graphic, shall mean any digital, analog, optical or magnetic means,
method, or process now known or hereafter developed, used to evidence such
item
or event.
Eligible
Account: Any of: (i) an account or accounts maintained with a federal
or state chartered depository institution or trust company the short term
unsecured debt obligations of which (or, in the case of a depository institution
or trust company that is the principal subsidiary of a holding company, the
debt
obligations of such holding company) have either (a) a rating of at least “A-2”
by Standard & Poor’s at the time any amounts are held on deposit therein, 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 (provided, that if such
rating falls below “A-2” by S&P, funds in such account shall immediately be
transferred to an otherwise Eligible Account) or (b) the highest short term
ratings of each Rating Agency at the time any amounts are held on deposit
therein, if the amounts on deposit are to be held in the account for more than
30 days or are intended to be used as credit enhancement, or (ii) a non interest
bearing segregated trust account or accounts maintained with (a) the trust
department of a federal or state chartered depository institution or (b) a
trust
company, acting in its fiduciary capacity (provided, that if such rating falls
below the highest short-term rating by such Rating Agency, funds in such account
shall immediately be transferred to an otherwise Eligible Account) or (iii)
any
other account acceptable to each Rating Agency.
Eligible
Institution: An institution having (i) the highest short term debt
rating, and one of the two highest long term debt ratings of the Rating
Agencies, (ii) with respect to any Custodial Account, an unsecured long term
debt rating of at least one of the two highest unsecured long term debt ratings
of the Rating Agencies or (iii) with respect to any Custodial Account in which
buydown funds are deposited, the highest long term debt rating by the Rating
Agency.
Equity
Take Out Refinanced Mortgage Loan: A Refinanced Mortgage Loan the
proceeds of which were in excess of the outstanding principal balance of the
existing mortgage loan.
3
Escrow
Account: Each separate trust account or accounts created and
maintained pursuant to Section 4.06 which shall be established at an Eligible
Institution, in the name of the Person that is the “Purchaser” with respect to
the related Mortgage Loans.
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 document.
Event
of
Default: Any one of the conditions or circumstances enumerated in
Section 9.01.
Exchange
Act: The Securities Exchange Act of 1934, as amended.
FDIC: The
Federal Deposit Insurance Corporation, or any successor thereto.
FHLMC: Xxxxxxx
Mac, formerly know as the Federal Home Loan Mortgage Corporation, or any
successor thereto.
FHLMC
Guides: The Xxxxxxx Xxx Xxxxxxx’ Guide and the Xxxxxxx Mac Servicers’
Guide and all amendments or additions thereto.
Fidelity
Bond: A fidelity bond to be maintained by the Seller pursuant to
Section 4.12.
FIRREA: The
Financial Institutions Reform, Recovery, and Enforcement Act of
1989.
First
Lien: With respect to each Mortgaged Property, the lien of the mortgage, deed
of
trust or other instrument securing a Mortgage Note which creates a first lien
on
the Mortgaged Property.
FNMA: Xxxxxx
Mae, formerly known as the Federal National Mortgage Association, or any
successor thereto.
FNMA
Guides: The Xxxxxx Xxx Xxxxxxx’ Guide and the Xxxxxx Mae Servicers’
Guide and all amendments or additions thereto.
GAAP: Generally
accepted accounting principles, consistently applied.
Gross
Margin: With respect to each adjustable rate Mortgage Loan, the fixed
percentage amount set forth in the related Mortgage Note to be added to the
applicable Index to determine the Mortgage Interest Rate.
HUD: The
United States Department of Housing and Urban Development or any
successor.
Index: A
rate per annum set forth on the applicable Mortgage Loan Schedule.
4
Initial
Mortgage Interest Rate Cap: With respect to each adjustable rate
Mortgage Loan, the provision in a Mortgage Note that limits permissible
increases and decreases in the Mortgage Interest Rate on the first Interest
Rate
Adjustment Date to the amount set forth in the Mortgage Loan
Schedule.
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 adjustable rate Mortgage
Loan, the date, specified in the related Mortgage Note and the related Mortgage
Loan Schedule on which the Mortgage Interest Rate is adjusted.
Lender-Paid
Mortgage Insurance Rate or LPMI Rate: With respect to any mortgage
loan, the Lender-Paid Mortgage Insurance Rate for any “lender-paid” Primary
Mortgage Insurance Policy shall be a per annum rate equal to the percentage
indicated on the Mortgage Loan Schedule.
Liquidation
Proceeds: Amounts, including Insurance Proceeds, received in
connection with the partial or complete liquidation of defaulted Mortgage Loans,
whether through trustee’s sale, foreclosure sale or otherwise or amounts
received in connection with any condemnation or partial release of a Mortgaged
Property and any other proceeds received in connection with an REO Property,
less the sum of related unreimbursed Servicing Fees and Servicing
Advances.
Loan-to-Value
Ratio or LTV: With respect to any Mortgage Loan, the ratio of the
original outstanding principal amount of the Mortgage Loan, to (i) the Appraised
Value of the Mortgaged Property at origination with respect to a Refinanced
Mortgage Loan, and (ii) the lesser of the Appraised Value of the Mortgaged
Property at origination or the purchase price of the Mortgaged Property with
respect to all other Mortgage Loans. The Loan-to-Value Ratio as of
any date other than the date of origination shall be the then outstanding
principal balance of the Mortgage Loan divided by (i) the Appraised Value of
the
Mortgaged Property at origination with respect to a Refinanced Mortgage Loan,
and (ii) the lesser of the Appraised Value of the Mortgaged Property at
origination or the purchase price of the Mortgaged Property, with respect to
all
other Mortgage Loans.
Master
Servicer: With respect to any Securitization Transaction, the “master
servicer,” if any, identified in the related transaction documents.
Maximum
Mortgage Interest Rate: The maximum annual rate at which interest
accrues on any adjustable rate Mortgage Loan in accordance with the provisions
of the related Mortgage Note.
Minimum
Mortgage Interest Rate: The minimum annual rate at which interest
accrues on any adjustable rate Mortgage Loan in accordance with the provisions
of the related Mortgage Note.
Monthly
Advance: The aggregate of the advances made by the Seller on any
Remittance Date pursuant to Section 5.03.
5
Monthly
Payment: The scheduled monthly payment of principal and interest on a
Mortgage Loan which is payable by a Mortgagor under the related Mortgage
Note.
Mortgage: The
mortgage, deed of trust or other instrument securing a Mortgage Note which
creates a first or lien on an unsubordinated estate in fee simple in real
property securing the Mortgage Note; except that with respect to real property
located in jurisdictions in which the use of leasehold estates for residential
properties is a widely accepted practice, the mortgage, deed of trust or other
instrument securing the Mortgage Note may secure and create a first lien upon
a
leasehold estate of the Mortgagor.
Mortgage
File: The mortgage documents pertaining to a particular Mortgage Loan
which are specified in Exhibit B hereto and any additional documents required
to
be added to the Mortgage File pursuant to this Agreement.
Mortgage
Impairment Insurance Policy: A mortgage impairment or blanket hazard
insurance policy as required by Section 4.11.
Mortgage
Interest Rate: The annual rate at which interest accrues on any
Mortgage Loan in accordance with the provisions of the related Mortgage Note,
which shall be adjusted from time to time with respect to adjustable rate
Mortgage Loans.
Mortgage
Interest Rate Cap: With respect to an adjustable rate Mortgage Loan,
the limit on each Mortgage Interest Rate adjustment as set forth in the related
Mortgage Note.
Mortgage
Loan: An individual Mortgage Loan, which is the subject of this
Agreement, each Mortgage Loan originally sold and subject to this Agreement
being identified on the applicable Mortgage Loan Schedule, which Mortgage Loan
includes without limitation the Mortgage File, the Monthly Payments, Principal
Prepayments, Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds,
REO Disposition Proceeds, and all other rights, benefits, proceeds and
obligations arising from or in connection with such Mortgage Loan, excluding
replaced or repurchased mortgage loans.
Mortgage
Loan Documents: The documents listed in Exhibit B.
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 and minus the LPMI Rate, if
any.
Mortgage
Loan Schedule: The schedule of Mortgage Loans annexed to the related
Assignment and Conveyance for the related pool of Mortgage Loans, such schedule
setting forth the following information, and/or such other information as the
parties may mutually agree upon in writing, with respect to each Mortgage Loan
in the related Mortgage Loan pool:
|
|
(1)
|
the
Seller’s Mortgage Loan identifying
number;
|
|
|
(2)
|
the
Mortgagor’s name;
|
|
|
(3)
|
the
street address of the Mortgaged Property including the city, state
and zip
code;
|
6
|
|
(4)
|
a
code indicating whether the Mortgaged Property is owner occupied
(i.e.,
primary residence, second residence, investor property) at the time
of
origination;
|
|
|
(5)
|
the
type of residential property constituting the Mortgaged
Property;
|
|
|
(6)
|
the
original months to maturity or the remaining months to maturity from
the
applicable Cut-off Date, in any case based on the original amortization
schedule and, if different, the maturity expressed in the same manner
but
based on the actual amortization
schedule;
|
|
|
(7)
|
the
Appraised Value, the purchase price of the Mortgage Property, if
applicable, and the Loan-to-Value Ratio at origination and at the
applicable Cut-off Date;
|
|
|
(8)
|
the
Mortgage Interest Rate at
origination;
|
|
|
(9)
|
the
Mortgage Interest Rate as of the applicable Cut-off
Date;
|
|
|
(10)
|
the
Mortgage Loan Remittance Rate;
|
|
|
(11)
|
the
stated maturity date;
|
|
|
(12)
|
the
amount of the Monthly Payment as of the applicable 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
applicable Cut-off Date, after deduction of payments of principal
due on
or before such Cut-off Date, whether or not
collected;
|
|
|
(15)
|
a
code indicating the purpose of the Mortgage Loan (i.e., purchase,
rate and
term refinance, equity take out
refinance);
|
|
|
(16)
|
a
code indicating the documentation style (i.e., full, alternative
or
reduced);
|
|
|
(17)
|
the
number of times during the twelve (12) month period preceding the
applicable Closing Date that any Monthly Payment has been received
thirty
(30) or more days after its Due
Date;
|
|
|
(18)
|
the
actual interest paid-to date (or actual next due date) as of the
applicable Cut-Off Date;
|
|
|
(19)
|
the
date on which the first payment is
due;
|
|
|
(20)
|
with
respect to adjustable rate Mortgage Loans, the initial Interest Rate
Adjustment Date;
|
|
|
(21)
|
with
respect to adjustable rate Mortgage Loans, the next Interest Rate
Adjustment Date;
|
7
|
|
(22)
|
with
respect to adjustable rate Mortgage Loans, the Gross
Margin;
|
|
|
(23)
|
with
respect to adjustable rate Mortgage Loans, the Maximum Mortgage Interest
Rate under the terms of the Mortgage
Note;
|
|
|
(24)
|
with
respect to adjustable rate Mortgage Loans, the Minimum Mortgage Interest
Rate under the terms of the Mortgage
Note;
|
|
|
(25)
|
with
respect to adjustable rate Mortgage Loans, a code indicating the
type of
Index;
|
|
|
(26)
|
with
respect to each adjustable rate Mortgage Loan, the type of adjustable
rate
Mortgage Loan (i.e., 3/1, 5/1, 7/1,
etc.)
|
|
|
(27)
|
a
code indicating whether the Mortgage Loan is a Convertible Mortgage
Loan;
|
|
|
(28)
|
a
code indicating whether or not the Mortgage Loan is the subject of
Primary
Mortgage Insurance;
|
|
|
(29)
|
a
code indicating the issuer of any related Primary Mortgage Insurance
Policy;
|
|
|
(30)
|
the
Credit Score of the Mortgagor;
|
|
|
(31)
|
the
Primary Mortgage Insurance certificate number, if
applicable;
|
|
|
(32)
|
the
Primary Mortgage Insurance coverage percentage, if
applicable;
|
|
|
(33)
|
the
LPMI Rate, if applicable;
|
|
|
(34)
|
a
code indicating if the Mortgage Loan is subject to a ground
lease;
|
|
|
(35)
|
a
code indicating whether or not the Mortgage Loan is the subject of
a
Prepayment Penalty as well as the terms of the prepayment
penalty;
|
|
|
(36)
|
The
Mortgage Interest Rate Cap with respect to adjustable rate Mortgage
Loans;
and
|
|
|
(37)
|
with
respect to adjustable rate Mortgage Loans, the Initial Mortgage Interest
Rate Cap;
|
|
|
(38)
|
The
Servicing Fee Rate with respect to such Mortgage Loan;
and
|
|
|
(39)
|
a
code indicating if the Mortgage Loan is an interest-only Mortgage
Loan
(including any Mortgage Loans with any interest-only features) and,
if so,
the term of the interest-only period of such Mortgage
Loan.
|
With
respect to the aggregate Mortgage Loans in the pool, the related Mortgage
Loan
Schedule shall set forth the following information, as of the applicable
Cut-off
Date:
8
|
|
(1)
|
the
number of Mortgage Loans;
|
|
|
(2)
|
the
current aggregate outstanding principal balance of the Mortgage
Loans;
|
|
|
(3)
|
the
weighted average Mortgage Interest Rate of the Mortgage Loans;
and
|
|
|
(4)
|
the
weighted average maturity of the Mortgage
Loans.
|
Mortgage
Note: The note or other evidence of the indebtedness of a Mortgagor
secured by a Mortgage.
Mortgaged
Property: The underlying real property securing repayment of a
Mortgage Note, consisting of a single parcel of real estate considered to be
real estate under the laws of the State in which such real property is located,
which may include condominium units and planned unit developments, improved
by a
residential dwelling; except that with respect to real property located in
jurisdictions in which the use of leasehold estates for residential properties
is a widely accepted practice, a leasehold estate of the Mortgagor, the term
of
which is equal to or longer than the term of the Mortgage.
Mortgagor: The
obligor on a Mortgage Note.
OCC: Office
of the Comptroller of the Currency, its successors and assigns.
Officers’
Certificate: A certificate signed by the Chairman of the Board, the
Vice Chairman of the Board, the President, a Senior Vice President or a Vice
President and by the Treasurer or 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 party on behalf of whom the opinion is being given, reasonably acceptable
to
the Purchaser.
OTS: Office
of Thrift Supervision, its successors and assigns.
Person: Any
individual, corporation, partnership, joint venture, association, joint stock
company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
Prepayment
Penalty: With respect to each Mortgage Loan, the penalty if the
Mortgagor prepays such Mortgage Loan as provided in the related Mortgage Note
or
Mortgage.
Primary
Mortgage Insurance Policy: Each primary policy of mortgage insurance
(including any “lender-paid” mortgage insurance policy) represented to be in
effect pursuant to Section 3.02(ee), or any replacement policy therefor obtained
by the Seller pursuant to Section 4.08.
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 (Northeast
Edition).
9
Principal
Prepayment: Any payment or other recovery of principal on a Mortgage
Loan full or partial which is received in advance of its scheduled Due Date,
including any prepayment penalty or premium thereon and which is not accompanied
by an amount of interest representing scheduled interest due on any date or
dates in any month or months subsequent to the month of prepayment.
Purchase
Price: The price paid on the applicable Closing Date by the Purchaser
to the Seller in exchange for the Mortgage Loans purchased on such Closing
Date
as calculated in Section 2.02 of this Agreement.
Purchase
Price and Terms Letter: As defined in the Recitals of this
Agreement.
Purchase
Price Premium: the excess of the Purchase Price over par, as
applicable, expressed as a percentage.
Purchaser: Mortgage
Asset Securitization Transactions, Inc., its successors in interest and
assigns.
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 set forth in the FNMA or FHLMC Guides and in Title XI of FIRREA
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
Insurer: An insurance company duly qualified as such under the laws
of the states in which the Mortgaged Properties are located, duly authorized
and
licensed in such states to transact the applicable insurance business and
to
write the insurance provided, approved as an insurer by FNMA and FHLMC and
whose
claims paying ability is rated in the two highest rating categories by Standard
& Poor’s, a division of the XxXxxx-Xxxx Companies, Inc., Xxxxx’x Investors
Service, Inc. and Fitch, Inc. with respect to primary mortgage insurance
and in
the two highest rating categories for general policyholder rating and financial
performance index rating by A.M. Best Company with respect to hazard and
flood
insurance.
10
Rating
Agencies: Standard & Poor’s, a division of McGraw Hill Companies,
Inc., Moody’s Insurance Service, Inc. and Fitch, Inc. or, in the event that
ownership of the Mortgage Loans is evidenced by mortgage backed securities,
the
nationally recognized rating agencies issuing ratings with respect to such
securities, if any.
Reconstitution: Any
Securitization Transaction or Whole Loan Transfer.
Reconstitution
Agreement: As defined in Section 11.17.
Refinanced
Mortgage Loan: A Mortgage Loan (including an Equity Take Out
Refinanced Mortgage Loan) which was made to a Mortgagor who owned the Mortgaged
Property prior to the origination of such Mortgage Loan and the proceeds of
which were used in whole or part to satisfy an existing mortgage.
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,” as such term is defined in the
Code.
Remittance
Date: The 24th day of any month, beginning with the month following
the month of the related Closing Date, or if such 24th day is not a Business
Day, the first Business Day immediately preceding such 24th day.
REO
Disposition : The final sale by the Seller of any REO
Property.
REO
Disposition Proceeds: Amounts received by the Seller in connection
with a related REO Disposition.
REO
Property: A Mortgaged Property acquired by the Seller on behalf of
the Purchaser as described in Section 4.13.
Repurchase
Price: With respect to any Mortgage Loan, a price equal to (i) the
unpaid principal balance (“UPB”) of the Mortgage Loan on the date of repurchase,
plus (ii) interest on such outstanding principal balance at the Mortgage
Interest Rate from the last date through which interest has been paid and
distributed to the Purchaser through the last day of the month of repurchase,
plus (iii) the Purchase Price Premium, if any, multiplied by the UPB on the
date
of repurchase, plus (iv) third party expenses incurred in connection with
the
transfer of the Mortgage Loan being repurchased and any unreimbursed Servicing
Advances with respect to such Mortgage Loan, plus (v) any costs and damages
incurred in connection with any violation of such Mortgage Loan of any predatory
or abusive lending law; less (vi) amounts received or advanced in respect
of
such repurchased Mortgage Loan which are being held in the Custodial Account
for
distribution in the month of repurchase.
11
SAIF: The
Savings Association Insurance Fund, or any successor thereto.
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 by the
Purchaser to an issuing entity in connection with an issuance of publicly
offered or privately placed, rated or unrated mortgage-backed securities or
(2)
an issuance of publicly offered or privately placed, rated or unrated
securities, the payments on which are determined primarily by reference to
one
or more portfolios of residential mortgage loans consisting, in whole or in
part, of some or all of the Mortgage Loans.
Seller: SunTrust
Mortgage, Inc. or any successor thereto pursuant to the terms hereof, in its
capacity as Seller or Servicer hereunder, as applicable.
Seller
Information: As defined in Section 12.07(a).
Servicer: As
defined in Section 12.03(c).
Servicing
Advances: All customary, reasonable and necessary “out of pocket”
costs and expenses (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
and
protection of the Mortgaged Property, (b) any enforcement, administrative or
judicial proceedings, or any legal work or advice specifically related to
servicing the Mortgage Loans, including but not limited to, foreclosures,
bankruptcies, condemnations, drug seizures, elections, foreclosures by
subordinate or superior lienholders, and other legal actions incidental to
the
servicing of the Mortgage Loans (provided that such expenses are reasonable
and
that the Seller specifies the Mortgage Loan(s) to which such expenses relate,
and provided further that any such enforcement, administrative or judicial
proceeding does not arise out of a breach of any representation, warranty or
covenant of the Seller hereunder), (c) the management and liquidation of the
Mortgaged Property if the Mortgaged Property is acquired in full or partial
satisfaction of the Mortgage, (d) taxes, assessments, water rates, sewer rates
and other charges which are or may become a lien upon the Mortgaged Property,
and any Primary Mortgage Insurance Policy premiums and fire and hazard insurance
coverage, and (e) compliance with the obligations under Section
4.08.
Servicing
Criteria: The “servicing criteria” set forth in Item 1122(d) of
Regulation AB, for which the Seller is responsible in its capacity as Servicer
and as identified on Exhibit K hereto.
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 Proceeds,
to the
extent permitted by Section 4.05) of such Monthly Payment collected by the
Seller, or as otherwise provided under Section 4.05.
12
Servicing
Fee Rate: The Servicing Fee Rate shall be a rate per annum set forth
in the related Purchase Price and Terms Letter and reflected on the Mortgage
Loan Schedule.
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 and copies of the Mortgage Loan Documents listed
in Exhibit B, the originals of which are delivered to the Purchaser or its
designee pursuant to Section 2.04.
Servicing
Officer: Any officer of the Seller involved in, or responsible for,
the administration and servicing of the Mortgage Loans whose name appears on
a
list of servicing officers furnished by the Seller to the Purchaser upon
request, as such list may from time to time be amended.
Standard
& Poor’s: Standard & Poor’s Rating Services, a division of
The XxXxxx-Xxxx Companies Inc., and its successors in interest.
Stated
Principal Balance: As to each Mortgage Loan as of any date of
determination, (i) the principal balance of such Mortgage Loan at the applicable
Cut-off Date after giving effect to payments of principal due on or before
such
date, whether or not received, minus (ii) all amounts previously distributed
to
the Purchaser with respect to the 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.
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
identified in Item 1122(d) of Regulation AB that are required to be performed
by
the Seller under this Agreement or any Reconstitution Agreement.
Subservicing
Agreement: An agreement between the Seller and a Subservicer for the
servicing of the Mortgage Loans.
13
Third-Party
Originator: Each Person, other than a Qualified Correspondent, that
originated Mortgage Loans acquired by the Seller.
Underwriting
Guidelines: The underwriting guidelines of the Seller as approved
by Purchaser, in effect at the time of origination of the related
Mortgage Loans, a copy of which is attached as Exhibit D hereto. Any
amendments to the Underwriting Guidelines shall be attached to the applicable
Purchase Price and Terms Letter.
Whole
Loan Transfer: Any sale or transfer by the Purchaser of some or all
of the Mortgage Loans, other than a Securitization Transaction.
ARTICLE
II
SERVICING
OF MORTGAGE LOANS; RECORD TITLE AND POSSESSION OF MORTGAGE FILES; BOOKS AND
RECORDS; DELIVERY OF MORTGAGE LOAN DOCUMENTS
|
Section
2.01
|
Agreement
to Purchase.
|
The
Seller agrees to sell and the Purchaser agrees to purchase from time to time
the
Mortgage Loans having an aggregate principal balance on the applicable Cut-off
Date in an amount as set forth in the related Purchase Price and Terms Letter,
or in such other amount as agreed by the Purchaser and the Seller as evidenced
by the actual aggregate principal balance of the Mortgage Loans accepted by
the
Purchaser on the applicable Closing Date. The Seller shall deliver
the related Mortgage Loan Schedule for the Mortgage Loans to be purchased on
the
applicable Closing Date to the Purchaser at least four (4) Business Days prior
to such Closing Date or such other date as has been set forth in the related
Purchase Price and Terms Letter. The parties hereby acknowledge that
the Purchaser has no obligation to purchase any Mortgage Loans from the Seller
except as expressly agreed to from time to time.
|
Section
2.02
|
Purchase
Price.
|
The
Purchase Price for each Mortgage Loan shall be the percentage of par as stated
in the related Purchase Price and Terms Letter (subject to adjustment as
provided therein), multiplied by the aggregate Stated Principal Balance, as
of
the applicable Cut-off Date, of the Mortgage Loans listed on the related
Mortgage Loan Schedule, after application of scheduled payments of principal
due
on or before the applicable Cut-off Date, whether or not
collected. If so provided in the related Purchase Price and Terms
Letter, portions of the Mortgage Loans shall be priced separately.
In
addition to the Purchase Price as described above, the Purchaser shall pay
to
the Seller, at closing, accrued interest on the current Stated Principal
Balance
of the respective pool of Mortgage Loans, as of the applicable Cut-off Date
at
the weighted average Mortgage Loan Remittance Rate from such Cut-off Date
through the day prior to the related Closing Date, inclusive. The
Purchase Price plus accrued interest as set forth in the preceding paragraph
shall be paid on the applicable Closing Date by wire transfer of immediately
available funds. Further, the Seller shall pay to the Purchaser the
costs and fees expected to be associated with the recording of an Assignment
with respect to each Mortgage Loan (such amount may be set forth in the
related Purchase Price and Terms Letter.)
14
The
Purchaser shall be entitled to (1) all scheduled principal due after the
applicable Cut-off Date, (2) all other recoveries of principal collected on
or
after such Cut-off Date (provided, however, that all scheduled payments of
principal due on or before such Cut-off Date and collected by the Seller or
any
successor servicer after such Cut-off Date shall belong to the Seller), and
(3)
all payments of interest on the Mortgage Loans net of applicable Servicing
Fees
and LPMI Rates, if applicable (minus that portion of any such payment which
is
allocable to the period prior to the applicable Cut-off Date). The
outstanding principal balance of each Mortgage Loan as of the applicable Cut-off
Date is determined after application of payments of principal due on or before
such Cut-off Date whether or not collected, together with any unscheduled
principal prepayments collected prior to such Cut-off Date; provided, however,
that payments of scheduled principal and interest prepaid for a Due Date beyond
the applicable Cut-off Date shall not be applied to the principal balance as
of
such Cut-off Date. Such prepaid amounts shall be the property of the
Purchaser. The Seller shall deposit any such prepaid amounts into the
Custodial Account, which account is established for the benefit of the Purchaser
for subsequent remittance by the Seller to the Purchaser.
|
Section
2.03
|
Servicing
of Mortgage Loans.
|
Simultaneously
with the execution and delivery of this Agreement, the Seller does hereby agree
to service the Mortgage Loans listed on each Mortgage Loan Schedule, that is
subject to the terms of this Agreement. The rights of the Purchaser
to receive payments with respect to the related Mortgage Loans shall be as
set
forth in this Agreement.
|
Section
2.04
|
Record
Title and Possession of Mortgage Files; Maintenance of Servicing
Files.
|
As
of the
applicable Closing Date, the Seller shall execute and deliver to the Purchaser
an Assignment and Conveyance in the form of Exhibit H1 hereto with respect
to
Mortgage Loans, pursuant to which the Seller shall sell, transfer, set over
and
convey the Mortgage Loans to the Purchaser, without recourse, and the Seller
hereby acknowledges that the Purchaser shall have subject to the terms of this
Agreement, all the right, title and interest of the Seller in and to the
Mortgage Loans. The delivery of the Mortgage Files shall be on the
applicable Closing Date at the expense of the Seller. The Seller
shall maintain a Servicing File consisting of a copy of the contents of each
Mortgage File and the originals of the documents in each Mortgage File not
delivered to the Purchaser. The Servicing File shall contain all
documents necessary to service the Mortgage Loans. The possession of
each Servicing File by the Seller is at the will of the Purchaser, for the
sole
purpose of servicing the related Mortgage Loan, and such retention and
possession by the Seller is in a custodial capacity only. From the
applicable Closing Date, the ownership of each related Mortgage Loan, including
the Mortgage Note, the Mortgage, the contents of the related Mortgage File
and
all rights, benefits, proceeds and obligations arising therefrom or in
connection therewith, shall be vested in the Purchaser. All rights
arising out of the Mortgage Loans including, but not limited to, all funds
received on or in connection with the Mortgage Loans and all records or
documents with respect to the Mortgage Loans prepared by or which come into
the
possession of the Seller shall be received and held by the Seller in trust
for
the benefit of the Purchaser as the owner of the Mortgage Loans. Any
portion of the Mortgage Files retained by the Seller shall be appropriately
identified in the Seller’s computer system to clearly reflect the ownership of
the Mortgage Loans by the Purchaser. The Seller shall release its
custody of the contents of the Mortgage Files only in accordance with written
instructions of the Purchaser, except when such release is required as
incidental to the Seller’s servicing of the Mortgage Loans or is in connection
with a repurchase of any Mortgage Loan or Loans with respect thereto pursuant
to
this Agreement, such written instructions shall not be required.
15
|
Section
2.05
|
Books
and Records.
|
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 the Mortgage Loans which
shall
be appropriately identified in the Seller’s computer system to clearly 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 FNMA or FHLMC, as applicable, including but
not
limited to documentation as to the method used in determining the applicability
of the provisions of the Flood Disaster Protection Act of 1973, as amended,
to
the Mortgaged Property, documentation evidencing insurance coverage and
eligibility of any condominium project for approval by FNMA or
FHLMC (if required under the Underwriting Guidelines) and periodic
inspection reports as required by Section 4.13. To the extent that
original documents are not required for purposes of realization of Liquidation
Proceeds or Insurance Proceeds, documents maintained by the Seller may be in
the
form of microfilm or microfiche or such other reliable means of recreating
original documents. 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.
In
addition to the foregoing, Seller shall provide to any supervisory agents or
examiners that regulate Purchaser, including but not limited to, the OTS, the
FDIC and other similar entities, access, during normal business hours, upon
reasonable advance notice to Seller and without charge to Seller or such
supervisory agents or examiners, any documentation regarding the Mortgage Loans
that may be required by any applicable regulations or regulator.
|
Section
2.06
|
Transfer
of Mortgage Loans.
|
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 any Mortgage Loan unless a notice
of the transfer of such Mortgage Loan has been delivered to the Seller in
accordance with this Section 2.06. The Purchaser may, subject to the
terms of this Agreement, sell and transfer one or more of the Mortgage Loans,
provided, however, that the transferee will not be deemed to be a Purchaser
hereunder binding upon the Seller unless a copy of an Assignment, Assumption
and
Recognition Agreement of this Agreement (or equivalent agreement), mutually
agreeable to the parties, executed by the transferee shall have been delivered
to the Seller. 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 the previous Purchaser shall be released from its obligations
hereunder with respect to the Mortgage Loans sold or
transferred. Notwithstanding the foregoing, the Seller hereby
acknowledges that the Purchaser intends to transfer the Mortgage Loans to U.S.
Bank National Association, as trustee pursuant to a Securitization Transaction
and agrees to deliver the related Assignment, Assumption and Recognition
Agreement (or equivalent agreement).
16
|
Section
2.07
|
Examination
of Mortgage Files; Delivery of Mortgage Loan
Documents.
|
Prior
to
or following each Closing Date (as mutually agreed upon by the parties and
specified in the applicable Purchase Price and Terms Letter), the Seller shall,
at the Purchaser’s option, (a) deliver to the Purchaser or its designee in
escrow, for examination with respect to each Mortgage Loan to be purchased
(or
such percentage sample of Mortgage Loans as mutually agreed upon by the parties
and specified in the applicable Purchase Price and Terms Letter), the related
Mortgage File, including a copy of the Assignment, pertaining to each Mortgage
Loan, or (b) make the related Mortgage File available to the Purchaser, or
its
designee, for examination at the Seller’s offices or such other location as
shall otherwise be agreed upon by the Purchaser and the Seller. Such
examination may be made by the Purchaser or its designee upon reasonable notice
to the Seller and during normal business hours at a time acceptable to the
Purchaser for purposes of ensuring that the Mortgage Loans have been
underwritten in accordance with the Underwriting Guidelines and to ensure
conformity with the terms of the related Purchase Price and Terms
Letter. If the Purchaser makes such examination prior to the
related Closing Date and determines, in its sole discretion, that any Mortgage
Loan does not so conform to the Underwriting Guidelines, this agreement or
the
terms of the related Purchase Price and Terms Letter, such Mortgage Loans shall
be deleted from the related Mortgage Loan Schedule, and may, at the Purchaser’s
option, be replaced by a substitute Mortgage Loan which meets the requirements
set forth in Section 3.03. If the Purchaser makes such examination
after the related Closing Date and determines, in its sole discretion,
that any Mortgage Loan does not so conform to the Underwriting Guidelines or
the
terms of the related Purchase Price and Terms Letter, Seller shall repurchase
such Mortgage Loan(s), at the Repurchase Price, upon Purchaser’s written
notice. The Purchaser may, at its option and without notice to the
Seller, purchase some or all of the Mortgage Loans without conducting any
partial or complete examination. The fact that the Purchaser or its
designee has conducted or has failed to conduct any partial or complete
examination of the Mortgage Files shall not affect the Purchaser’s (or any of
its successor’s) rights to demand repurchase, substitution or other relief as
provided herein.
On
each
Closing Date, the Seller shall release to the Purchaser or its designee the
related Mortgage Loan Documents. No later than four (4) Business Days
prior to each Closing Date or such other date as has been set forth in the
related Purchase Price and Terms Letter, and notwithstanding the preceding
paragraph, the related Mortgage Loan Documents enumerated as items (1), (2),
(3), (4), (5), (6), (7), (8), and (15) in Exhibit B hereto shall be delivered
by
the Seller to the Purchaser’s designee pursuant to a bailee letter
agreement. The remaining documents constituting the Mortgage Loan
Documents shall be part of the Servicing File and shall be held by the Seller
separately as custodian and for the sole benefit and on behalf of the Purchaser,
and shall be delivered, at the Purchaser’s request, to the Purchaser or its
designee within (5) Business Days from such request. If the Seller
cannot deliver the original recorded Mortgage Loan Documents or the original
policy of title insurance, including riders and endorsements thereto, on the
applicable Closing Date, the Seller shall, promptly upon receipt thereof and
in
any case not later than 90 days from such Closing Date, deliver such original
documents, including original recorded documents, to the Purchaser or its
designee (unless the Seller is delayed in making such delivery by reason of
the
fact that such documents shall not have been returned by the appropriate
recording office). If delivery is not completed within 90 days solely
due to delays in making such delivery by reason of the fact that such documents
shall not have been returned by the appropriate recording office, the Seller
shall deliver such documents to the Purchaser, or its designee, within such
time
period as specified in an Officer’s Certificate stating the date by
which Seller expects to receive any missing documents sent for recording from
the applicable recording office. In the event that documents have not
been received by the date specified in the Officer’s Certificate, a
subsequent Officer’s Certificate shall be delivered by such date
specified in the prior Officer’s Certificate, stating a revised date
for receipt of documentation. The procedure shall be repeated until
the documents have been received and delivered. The Seller shall
continue to use its best efforts to effect delivery within 180 days of the
applicable Closing Date; provided however, that if delivery is not completed
within 180 days of such Closing Date, at the Purchaser’s option, the
Seller will repurchase such Mortgage Loan in accordance with Section 3.03,
or the Purchaser, in its sole discretion, will extend in writing the
time period for Seller to effect delivery; and further provided that at the
expiration of such extension, if the documents have not been received, Seller,
at Purchaser’s option will repurchase such Mortgage Loan in accordance with
Section 3.03 (it being understood that any cure period set forth in Section
3.03
shall be deemed to have expired).
17
The
Seller shall pay all initial recording fees for the Assignments and any other
fees in connection with the transfer of all original documents to the Purchaser
or its designee. The Seller shall prepare, in recordable form, all
Assignments necessary to assign the Mortgage Loans to Purchaser, or its
designee. The Seller shall be responsible for recording the
Assignments in accordance with and at the direction of the
Purchaser.
To
the
extent not delivered on the applicable Closing Date, the Seller shall provide
a
copy of the title insurance policy to the Purchaser or its designee within
ninety (90) days of the applicable Closing Date.
Any
review by the Purchaser, or its designee, of the Mortgage Files shall in no
way
alter or reduce the Seller’s obligations hereunder.
The
Seller shall forward to the Purchaser, or its designee, original documents
evidencing an assumption, modification, consolidation or extension of any
Mortgage Loan entered into in accordance with Section 4.01 or Section 6.01
within one week of their execution; provided, however, that the Seller shall
provide the Purchaser, or its designee, with a certified true copy of any such
document submitted for recordation within 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 (60) days of its submission for
recordation.
18
From
time
to time the Seller may have a need for Mortgage Loan Documents to be released
from Purchaser, or its designee. The Purchaser shall, upon the
written request of the Seller, within ten (10) Business Days, deliver (or cause
to be delivered) to the Seller, any requested documentation previously delivered
to Purchaser, or its designee, as part of the Mortgage File, provided that
such
documentation is promptly returned to Purchaser, or its designee, as the case
may be, when the Seller no longer requires possession of the document, and
provided that during the time that any such documentation is held by the Seller,
such possession is in trust for the benefit of Purchaser. The Seller
shall indemnify the Purchaser from and against any and all losses, claims,
damages, penalties, fines, forfeitures, costs and expenses (including court
costs and reasonable attorney’s fees) resulting from or related to the loss,
damage, or misplacement of any documentation delivered to the Seller pursuant
to
this paragraph.
|
Section
2.08
|
Quality
Control Procedures.
|
The
Seller must have an internal quality control program that verifies, on a regular
basis, the existence and accuracy of the legal documents, credit documents,
property appraisals, and underwriting decisions. The program must be
capable of evaluating and monitoring the overall quality of its loan production
and servicing activities. The program is to ensure that the Mortgage
Loans are originated and serviced in accordance with prudent mortgage banking
practices and accounting principles; guard against dishonest, fraudulent, or
negligent acts; and guard against errors and omissions by officers, employees,
or other authorized persons.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF THE SELLER; REPURCHASE; REVIEW OF MORTGAGE LOANS
|
Section
3.01
|
Representations
and Warranties of the Seller.
|
The
Seller represents, warrants and covenants to the Purchaser that as of each
Closing Date or as of such date specifically provided herein:
(a) The
Seller is duly organized, validly existing and in good standing under the laws
of the state of its formation and has all licenses necessary to carry out its
business as now being conducted, and is licensed and qualified to transact
business in and is in good standing under the laws of each state in which any
Mortgaged Property is located or is otherwise exempt under applicable law from
such licensing or qualification or is otherwise not required under applicable
law to effect such licensing or qualification and no demand for such licensing
or qualification has been made upon such Seller by any such state, and in any
event such Seller is in compliance with the laws of any such state to the extent
necessary to ensure the enforceability of each Mortgage Loan and the servicing
of the Mortgage Loans in accordance with the terms of this
Agreement;
(b) The
Seller has the full power and authority and legal right to hold, transfer and
convey each Mortgage Loan, to sell each Mortgage Loan and to execute, deliver
and perform, and to enter into and consummate all transactions contemplated
by
this Agreement and to conduct its business as presently conducted, has duly
authorized the execution, delivery and performance of this Agreement and any
agreements contemplated hereby, has duly executed and delivered this Agreement,
and any agreements contemplated hereby, and this Agreement and each Assignment
to the Purchaser and any agreement contemplated hereby, constitutes a legal,
valid and binding obligation of the Seller, enforceable against it in accordance
with its terms, and all requisite corporate action has been taken by the Seller
to make this Agreement and all agreements contemplated hereby valid and binding
upon the Seller in accordance with their terms;
19
(c) None
of the execution and delivery of this Agreement, the origination of the Mortgage
Loans by the Seller, the sale of the Mortgage Loans to the Purchaser, the
consummation of the transactions contemplated hereby, or the fulfillment of
or
compliance with the terms and conditions of this Agreement will conflict with
any of the terms, conditions or provisions of the Seller’s charter or by laws or
materially conflict with or result in a material breach of any of the terms,
conditions or provisions of any legal restriction or any agreement or instrument
to which the Seller is now a party or by which it is bound, or constitute a
default or result in an acceleration under any of the foregoing, or result
in
the material violation of any law, rule, regulation, order, judgment or decree
to which the Seller or its property is subject;
(d) There
is no litigation, suit, proceeding or investigation pending or, to the Seller’s
knowledge, threatened, or any order or decree outstanding, with respect to
the
Seller which is reasonably likely to have a material adverse effect on the
sale
of the Mortgage Loans, the execution, delivery, performance or enforceability
of
this Agreement, or which is reasonably likely to have a material adverse effect
on the financial condition of the Seller;
(e) 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, except for consents, approvals,
authorizations and orders which have been obtained;
(f) The
consummation of the transactions contemplated by this Agreement is 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 bulk transfer or any similar statutory
provisions in effect in any applicable jurisdiction;
(g) The
Seller will treat the sale of the Mortgage Loans to the Purchaser as a sale
for
reporting and accounting purposes and, to the extent appropriate, for federal
income tax purposes;
(h) Seller
is an approved seller/servicer of residential fixed and adjustable rate mortgage
loans for FNMA and FHLMC and is a HUD approved mortgage seller/servicer pursuant
to Section 203 of the National Housing Act, with such facilities, procedures
and
personnel necessary for the sound servicing of mortgage loans of the same type
as the Mortgage Loans. The Seller is duly qualified, licensed,
registered and otherwise authorized under all applicable federal, state and
local laws, and regulations, and is in good standing to sell mortgage loans
to
and service mortgage loans for FNMA and FHLMC and no event has occurred which
would make Seller unable to comply with eligibility requirements or which would
require notification to either FNMA or FHLMC;
20
(i) The
Seller does not believe, nor does it have any cause or reason 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;
(j) No
statement, tape, diskette, form, report or other document prepared by, or on
behalf of, Seller pursuant to this Agreement or in connection with the
transactions contemplated hereby, contains or will contain any statement that
is
or will be inaccurate or misleading in any material respect;
(k) The
Seller acknowledges and agrees that the Servicing Fee represents reasonable
compensation for performing such services and that the entire Servicing Fee
shall be treated by the Seller, for accounting and tax purposes, as compensation
for the servicing and administration of the Mortgage Loans pursuant to this
Agreement and the consideration received by the Seller upon the sale of the
Mortgage Loans hereunder constitutes fair consideration and reasonably
equivalent value for the Mortgage Loans;
(l) The
Seller has delivered to the Purchaser financial statements as to its last two
complete fiscal years. All such financial statements fairly present
the pertinent results of operations and changes in financial position for each
of such periods and the financial position at the end of each such period of
the
Seller and its subsidiaries and have been prepared in accordance with GAAP
consistently applied throughout the periods involved, except as set forth in
the
notes thereto. There has been 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;
(m) Except
as disclosed in this Agreement, the Seller has not dealt with any broker,
investment banker, agent or other person that may be entitled to any commission
or compensation in connection with the sale of the Mortgage Loans pursuant
to
this Agreement. Seller will pay any commission or compensation to any
broker, investment banker, agent or other person who may be entitled thereto
in
connection with the sale of the Mortgage Loans pursuant to this
Agreement. Nothing in this Section 3.01(m) shall prohibit or limit
Seller’s use of a mortgage loan broker in connection with the origination of any
Mortgage Loan, and Seller has paid any commission or compensation to any
mortgage loan broker and/or correspondent lenders who may be entitled thereto
in
connection with the origination of any Mortgage Loan.
|
Section
3.02
|
Representations
and Warranties as to Individual Mortgage
Loans.
|
References
in this Section to percentages of Mortgage Loans refer in each case to the
percentage of the aggregate principal balance of the applicable pool of Mortgage
Loans as of the related Cut-off Date, based on the outstanding Stated Principal
Balances of the Mortgage Loans as of such Cut-off Date, and giving effect to
scheduled Monthly Payments due on or prior to such Cut-off Date, whether or
not
received. References to percentages of Mortgaged Properties refer, in
each case, to the percentages of expected aggregate Stated Principal Balances
of
the related Mortgage Loans (determined as described in the preceding
sentence). The Seller hereby represents and warrants to the
Purchaser, as to each Mortgage Loan, as of the related Closing Date as
follows:
21
(a) The
information set forth in the Mortgage Loan Schedule was true and correct in
all
material respects at the date or dates respecting which such information is
furnished as specified in the Mortgage Loan Schedule;
(b) Immediately
prior to the transfer and assignment contemplated herein, the Seller was the
sole owner and holder of the Mortgage Loan free and clear of any and all liens,
pledges, charges or security interests of any nature and has full right and
authority to sell and assign the same;
(c) The
Mortgage is a valid, subsisting and enforceable first lien on the property
therein described, and the Mortgaged Property is free and clear of all
encumbrances and liens having priority over the first lien of the Mortgage
except for liens for real estate taxes and special assessments not yet due
and
payable and liens or interests arising under or as a result of any federal,
state or local law, regulation or ordinance relating to hazardous wastes or
hazardous substances, and, if the related Mortgaged Property is a condominium
unit, any lien for common charges permitted by statute or homeowners association
fees; and if the Mortgaged Property consists of shares of a cooperative housing
corporation, any lien for amounts due to the cooperative housing corporation
for
unpaid assessments or charges or any lien of any assignment of rents or
maintenance expenses secured by the real property owned by the cooperative
housing corporation; and any security agreement, chattel mortgage or equivalent
document related to, and delivered to the Trustee or to the Master Servicer
with, any Mortgage establishes in the Seller a valid and subsisting first lien
on the property described therein and the Seller has full right to sell and
assign the same to the Trustee;
(d) Neither
the Seller nor any prior holder of the Mortgage or the related Mortgage Note
has
modified the Mortgage or the related Mortgage Note in any material respect,
satisfied, canceled or subordinated the Mortgage in whole or in part, released
the Mortgaged Property in whole or in part from the lien of the Mortgage, or
executed any instrument of release, cancellation, modification or satisfaction,
except in each case as is reflected in an agreement delivered to the Trustee
or
the Master Servicer pursuant to Section 2.01;
(e) All
taxes, governmental assessments, insurance premiums, and water, sewer and
municipal charges, which previously became due and owing have been paid, or
an
escrow of funds has been established, to the extent permitted by law, in an
amount sufficient to pay for every such item which remains unpaid; and the
Seller has not advanced funds, or received any advance of funds by a party
other
than the Mortgagor, directly or indirectly for the payment of any amount
required by the Mortgage, except for interest accruing from the date of the
Mortgage Note or date of disbursement of the Mortgage Loan proceeds, whichever
is later, to the day which precedes by thirty days the first Due Date under
the
related Mortgage Note;
(f) The
Mortgaged Property is undamaged by water, fire, earthquake, earth movement
other
than earthquake, windstorm, flood, tornado or similar casualty (excluding
casualty from the presence of hazardous wastes or hazardous substances, as
to
which the Seller makes no representations), 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 and to the best of the Seller’s knowledge, there is
no proceeding pending or threatened for the total or partial condemnation of
the
Mortgaged Property;
22
(g) The
Mortgaged Property is free and clear of all mechanics’ and materialmen’s liens
or liens in the nature thereof; provided, however, that this
warranty shall be deemed not to have been made at the time of the initial
issuance of the Certificates if a title policy affording, in substance, the
same
protection afforded by this warranty is furnished to the Trustee by the
Seller;
(h) Except
for Mortgage Loans secured by co-op shares and Mortgage Loans secured by
residential long term leases, the Mortgaged Property consists of a fee simple
estate in real property; all of the improvements which are included for the
purpose of determining the appraised value of the Mortgaged Property lie wholly
within the boundaries and building restriction lines of such property and no
improvements on adjoining properties encroach upon the Mortgaged Property
(unless insured against under the related title insurance policy); and to the
best of the Seller’s knowledge, the Mortgaged Property and all improvements
thereon comply with all requirements of any applicable zoning and subdivision
laws and ordinances;
(i) The
Mortgage Loan meets, or is exempt from, applicable state or federal laws,
regulations and other requirements, pertaining to usury, and the Mortgage Loan
is not usurious;
(j) To
the best of the Seller’s knowledge, 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;
(k) All
payments required to be made up to but not including the Due Date immediately
preceding the Cut-off Date for such Mortgage Loan under the terms of the related
Mortgage Note have been made and no payment under any Mortgage Loan has been
30
days delinquent more than one time within twelve months prior to the Closing
Date;
(l) The
Mortgage Note, the related Mortgage and other agreements executed in connection
therewith are genuine, and each is the legal, valid and binding obligation
of
the maker thereof, enforceable in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors’ rights generally and by
general equity principles (regardless of whether such enforcement is considered
in a proceeding in equity or at law); and, to the best of the Seller’s
knowledge, all parties to the Mortgage Note and the Mortgage had legal capacity
to execute the Mortgage Note and the Mortgage and each Mortgage Note and
Mortgage has been duly and properly executed by the Mortgagor;
(m) Each
Loan at the time it was made complied in all material respects with applicable
federal, state and local laws, including, without limitation, all applicable
anti-predatory and abusive lending laws;
(n) The
proceeds of the Mortgage Loans have been fully disbursed, there is no
requirement for future advances thereunder and any and all requirements as
to
completion of any on site or off site improvements and as to disbursements
of
any escrow funds therefor have been complied with (except for escrow funds
for
exterior items which could not be completed due to weather and escrow funds
for
the completion of swimming pools); and all costs, fees and expenses incurred
in
making, closing or recording the Mortgage Loan have been paid, except recording
fees with respect to Mortgages not recorded as of the Closing Date;
23
(o) The
Mortgage Loan (except any Mortgage Loan secured by a Mortgaged Property located
in any jurisdiction, as to which an opinion of counsel of the type customarily
rendered in such jurisdiction in lieu of title insurance is instead received)
is
covered by an American Land Title Association mortgagee title insurance policy
or other generally acceptable form of policy or insurance acceptable to Xxxxxx
Xxx or Xxxxxxx Mac, issued by a title insurer acceptable to Xxxxxx Mae or
Xxxxxxx Mac insuring the originator, its successors and assigns, as to the
first
priority lien of the Mortgage in the original principal amount of the Mortgage
Loan and subject only to (A) the lien of current real property taxes and
assessments not yet due and payable, (B) covenants, conditions and restrictions,
rights of way, easements and other matters of public record as of the date
of
recording of such Mortgage acceptable to mortgage lending institutions in the
area in which the Mortgaged Property is located or specifically referred to
in
the appraisal performed in connection with the origination of the related
Mortgage Loan, (C) liens created pursuant to any federal, state or local law,
regulation or ordinance affording liens for the costs of clean up of hazardous
substances or hazardous wastes or for other environmental protection purposes
and (D) such other matters to which like properties are commonly subject which
do not individually, or in the aggregate, materially interfere with the benefits
of the security intended to be provided by the Mortgage; the Seller is the
sole
insured of such mortgagee title insurance policy, the assignment to the Trustee
of the Seller’s interest in such mortgagee title insurance policy does not
require any consent of or notification to the insurer which has not been
obtained or made, such mortgagee title insurance policy is in full force and
effect and will be in full force and effect and inure to the benefit of the
Trustee, no claims have been made under such mortgagee title insurance policy,
and no prior holder of the related Mortgage, including the Seller, has done,
by
act or omission, anything which would impair the coverage of such mortgagee
title insurance policy;
(p) The
Mortgaged Property securing each Mortgage Loan is insured by an insurer
acceptable to Xxxxxx Mae or Xxxxxxx Mac against loss by fire and such hazards
as
are covered under a standard extended coverage endorsement, in an amount which
is not less than the lesser of 100% of the insurable value of the Mortgaged
Property and the outstanding principal balance of the Mortgage Loan, but in
no
event less than the minimum amount necessary to fully compensate for any damage
or loss on a replacement cost basis; if the Mortgaged Property is a condominium
unit, it is included under the coverage afforded by a blanket policy for the
project; if upon origination of the Mortgage Loan, the improvements on the
Mortgaged Property were in an area identified in the Federal Register by the
Federal Emergency Management Agency as having special flood hazards, a flood
insurance policy meeting the requirements of the current guidelines of the
Federal Insurance Administration is in effect with a generally acceptable
insurance carrier, in an amount representing coverage not less than the least
of
(A) the outstanding principal balance of the Mortgage Loan, (B) the full
insurable value of the Mortgaged Property and (C) the maximum amount of
insurance which was available under the National Flood Insurance Act of 1968,
as
amended; and each Mortgage obligates the Mortgagor thereunder to maintain all
such insurance at the Mortgagor’s cost and expense;
24
(q) To
the best of the Seller’s knowledge no foreclosure action has been commenced or
is currently threatened, with respect to the Mortgage Loan and the Seller has
not waived any default, breach, violation or event of acceleration;
(r) No
Mortgage Note or Mortgage is subject to any right of rescission, set off,
counterclaim or defense, including the defense of usury, nor will the operation
of any of the terms of the Mortgage Note or Mortgage, or the exercise of any
right thereunder, render the Mortgage Note or Mortgage unenforceable, in whole
or in part, or subject it to any right of rescission, set off, counterclaim
or
defense, including the defense of usury, and no such right of rescission, set
off, counterclaim or defense has been asserted with respect
thereto;
(s) Each
Mortgage Note is payable in monthly payments, resulting in complete amortization
of the Mortgage Loan over a term of not more than 360 months;
(t) Each
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, including realization
by
judicial foreclosure (subject to any limitation arising from any bankruptcy,
insolvency or other law for the relief of debtors), and there is no homestead
or
other exemption available to the Mortgagor which would interfere with such
right
of foreclosure;
(u) To
the best of the Seller’s knowledge, no Mortgagor is a debtor in any state or
federal bankruptcy or insolvency proceeding;
(v) Each
Mortgaged Property consists of a one to four unit residential property, which
may include a detached home, townhouse, condominium unit or a unit in a planned
unit development or, in the case of Mortgage Loans secured by co-op shares,
leases or occupancy agreements;
(w) The
Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G(a)(3)
of the Code;
(x) With
respect to each Mortgage where a lost note affidavit has been delivered to
the
Trustee in place of the related Mortgage Note, the related Mortgage Note is
no
longer in existence;
(y) In
the event that the Mortgagor is an inter vivos “living” trust, (i) such trust is
in compliance with Xxxxxx Mae or Xxxxxxx Mac standards for inter vivos trusts
and (ii) holding title to the Mortgaged Property in such trust will not diminish
any rights as a creditor including the right to full title to the Mortgaged
Property in the event foreclosure proceedings are initiated;
(z) If
the Mortgage Loan is secured by a long-term residential lease, (1) the lessor
under the lease holds a fee simple interest in the land; (2) the terms of such
lease expressly permit the mortgaging of the leasehold estate, the assignment
of
the lease without the lessor’s consent and the acquisition by the holder of the
Mortgage of the rights of the lessee upon foreclosure or assignment in lieu
of
foreclosure or provide the holder of the Mortgage with substantially similar
protections; (3) the terms of such lease do not (a) allow the termination
thereof upon the lessee’s default without the holder of the Mortgage being
entitled to receive written notice of, and opportunity to cure, such default
or
(b) allow the termination of the lease in the event of damage or destruction
as
long as the Mortgage is in existence; (4) the term of such lease does not
terminate earlier than five years after the maturity date of the Mortgage Note;
and (5) the Mortgaged Property is located in a jurisdiction in which the use
of
leasehold estates in transferring ownership in residential properties is a
widely accepted practice;
25
(aa) The
Mortgage Loan was originated by a mortgagee approved by the Secretary of Housing
and Urban Development pursuant to Sections 203 and 211 of the National Housing
Act, as amended, a savings and loan association, a savings bank, a commercial
bank, credit union, insurance company or similar institution which is supervised
and examined by a federal or state authority;
(bb) The
Mortgage Loan was underwritten in accordance with the underwriting guidelines
of
the related Loan Seller in effect at the time of origination with exceptions
thereto exercised in a reasonable manner;
(cc) The
Loan Seller used no adverse selection procedures in selecting the Mortgage
Loan
from among the outstanding first-lien, residential mortgage loans owned by
it
which were available for sale to the Seller;
(dd) With
respect to each Mortgage Loan, the Seller is in possession of a complete
Mortgage File except for the documents which have been delivered to the Trustee
or which have been submitted for recording and not yet returned;
(ee) As
of the Cut-off Date, the range of current Loan-to-Value Ratios of the Mortgage
Loans is 3.17% to 98.52% and 215 Mortgage Loans, representing 10.82% of the
Cut-off Date Pool Balance, had current Loan-to-Value Ratios at origination
in
excess of 80%. All of the Mortgage Loans with current Loan-to-Value
Ratios in excess of 80% were subject to a Primary Insurance Policy;
(ff) With
respect to each Mortgage Loan that has a prepayment penalty feature, each such
prepayment penalty is enforceable and, at the time such Mortgage Loan was
originated, each prepayment penalty complied with applicable federal, state
and
local law, subject to federal preemption where applicable;
(gg) With
respect to each Mortgage Loan, the Servicing Agreement requires the Servicer
to
deposit into the related Protected Account an amount equal to all payments
of
principal and interest on such Mortgage Loan that are delinquent at the close
of
business on the related Determination Date and not previously advanced by the
Servicer. The obligation of the Servicer to advance such payments as
to such Mortgage Loan will continue through the final disposition or liquidation
of the Mortgaged Property, unless the Servicer deems such advance to be
nonrecoverable from liquidation proceeds, REO disposition proceeds, condemnation
proceeds or insurance proceeds with respect to such Mortgage Loan;
(hh) No
Mortgage Loan is a High Cost Loan or Covered Loan, as applicable, and no
Mortgage Loan originated on or after October 1, 2002 through March 6, 2003
is
governed by the Georgia Fair Lending Act. No Mortgage Loan is covered
by the Home Ownership and Equity Protection Act of 1994 and no Mortgage Loan
is
in violation of any comparable state or local law;
26
(ii) With
respect to each Mortgage Loan, either (a) an appraisal acceptable to FNMA or
FHLMC has been obtained or (b) an appraisal on Form 1004 or Form 2055 with
an
interior inspection has been obtained; and
(jj)
No loan is a High Cost Loan or Covered Loan, as applicable (as such terms
are defined in the then current Standard & Poor’s LEVELS® Glossary which is
now Version 6.0 Revised, Appendix E).
|
Section
3.03
|
Repurchase;
Substitution; Set-off.
|
It
is
understood and agreed that the representations, warranties and covenants set
forth in Sections 2.07, 3.01 and 3.02 shall survive the sale of the Mortgage
Loans and delivery of the Mortgage Loan Documents to the Purchaser, or its
designee, and shall inure to the benefit of the Purchaser, notwithstanding
any
restrictive or qualified endorsement on any Mortgage Note or Assignment or
the
examination, or lack of examination, of any Mortgage File. Upon
discovery by either 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 in any Mortgage
Loan, the party discovering such breach shall give prompt written notice to
the
other. The Seller shall have a period of sixty (60) days from the
earlier of its discovery or its receipt of notice of any such breach within
which to correct or cure such breach. The Seller hereby covenants and
agrees that if any such breach is not corrected or cured within such sixty
(60)
day period, the Seller shall, at the Purchaser’s option and not later than
ninety (90) days of its discovery or its receipt of notice of such breach,
repurchase such Mortgage Loan at the Repurchase Price or, with the Purchaser’s
prior consent, substitute a Mortgage Loan as provided below. If any
such breach is not cured within such cure period, the Seller, at the Purchaser’s
option exercised by written notice to Seller, shall repurchase any such Mortgage
Loan at the Repurchase Price no later than ninety (90) days of receipt of such
notice; provided that Seller shall have no such repurchase obligation unless
Purchaser gives such notice to Seller no later than ninety (90) days after
the
expiration of such cure period. Any such repurchase shall be
accomplished by deposit in the Custodial Account of the amount of the Repurchase
Price, after deducting therefrom any amounts received in respect of such
repurchased Mortgage Loan and being held in the Custodial Account for future
distribution. It is understood by the parties hereto that a breach of
the representations and warranties made in Subsections 3.02(gg), (nn), (xx),
(ww), (xx), (aaa), (bbb), (ccc), (eee), (fff), (hhh), (mmm), (nnn) or (sss)
will
be deemed to materially and adversely affect the value of the related Mortgage
Loan or the interest of the Purchaser therein.
Any
substitute Mortgage Loan shall (a) have a principal balance at the time of
substitution not in excess of the principal balance of the removed Mortgage
Loan
(the amount of any difference, plus one month’s interest thereon at the Mortgage
Interest Rate borne by the removed Mortgage Loan, being paid by the Seller
and
deemed to be a Principal Prepayment to be deposited by the Seller in the
Custodial Account), (b) have a Mortgage Interest Rate not less than, and not
more than one percentage point greater than, the Mortgage Interest Rate of
the
removed Mortgage Loan, (c) have a remaining term to stated maturity not later
than, and not more than one year less than, the remaining term to stated
maturity of the removed Mortgage Loan, (d) be, in the reasonable determination
of the Purchaser, of the same type, quality and character (including location
of
the Mortgaged Property) as the removed Mortgage Loan as if the breach had not
occurred, (e) have a Loan-to-Value Ratio, at origination no greater than that
of
the removed Mortgage Loan and (f) be, in the reasonable determination of the
Purchaser, in material compliance with the representations and warranties
contained in this Agreement as of the date of substitution.
27
The
Seller shall amend the applicable Mortgage Loan Schedule to reflect the
withdrawal of the removed Mortgage Loan from this Agreement and the substitution
of such substitute Mortgage Loan therefor. Upon such amendment, the
Purchaser shall review the Mortgage File delivered to it relating to the
substitute Mortgage Loan. In the event of such a substitution,
accrued interest on the substitute Mortgage Loan for the month in which the
substitution occurs and any Principal Prepayments made thereon during such
month
shall be the property of the Purchaser and accrued interest for such month
on
the Mortgage Loan for which the substitution is made and any Principal
Prepayments made thereon during such month shall be the property of the
Seller. The principal payment on a substitute Mortgage Loan due on
the Due Date in the month of substitution shall be the property of the Seller;
and the principal payment on the Mortgage Loan for which the substitution is
made due on such date shall be the property of the Purchaser.
Without
in any way limiting the foregoing, Purchaser may, at its option and in its
sole
discretion, offset any or all amounts owed by the Seller to Purchaser under
this
Agreement and any Purchase Price and Terms Letter, against any or all amounts
due from Purchaser to the Seller.
It
is
understood and agreed that the obligations of the Seller set forth in this
Section 3.03 to cure, repurchase, reimburse or substitute for a defective
Mortgage Loan, and to indemnify Purchaser pursuant to Section 8.01, and
Purchaser’s right of set-off, constitute the sole remedies of the Purchaser
respecting a breach of the foregoing representations and
warranties. If the Seller fails to repurchase, reimburse or
substitute for a defective Mortgage Loan in accordance with this Section 3.03,
or fails to cure a defective Mortgage Loan to Purchaser’s reasonable
satisfaction in accordance with this Section 3.03, or to indemnify Purchaser
pursuant to Section 8.01, that failure shall be an Event of Default and the
Purchaser shall be entitled to pursue all remedies available as a result
thereof. No provision of this paragraph shall affect the rights of
the Purchaser to terminate this Agreement for cause, as set forth in Sections
10.01 and 11.01.
|
Section
3.04
|
Repurchase
of Convertible Mortgage Loans.
|
In
the
event the Mortgagor under any Convertible Mortgage Loan elects to convert said
Mortgage Note to a fixed interest rate Mortgage Note, as provided in said
Mortgage Note, then at Purchaser’s option the Seller shall, prior to the
effective date of said conversion, repurchase such Convertible Mortgage Loan
from the Purchaser in accordance with Section 3.03 hereof.
28
|
Section
3.05
|
Repurchase
of Mortgage Loans With Early Payment
Defaults.
|
If
any
Monthly Payment is thirty (30) days or more delinquent before the expiration
of
the three (3) month period following the applicable Closing Date, the Seller,
upon receipt of written request from the Purchaser, shall repurchase such
Mortgage Loan from the Purchaser at the Repurchase Price; provided that Seller
shall have no such repurchase obligation unless Purchaser gives such written
request to Seller no later than ninety (90) days following receipt of the
corresponding remittance report for such delinquent Monthly
Payment. Notwithstanding the foregoing provisions of this Section
3.05, if the Purchaser does not notify the Seller in writing either (i) in
its
request to Seller to repurchase such Mortgage Loan or in any corresponding
funding schedule, or (ii) on or before the 60th day following Seller’s
repurchase of such Mortgage Loan, to pay that portion of the Repurchase Price
equal to the product of the unpaid principal balance of the repurchased Mortgage
Loan and the Purchase Price Premium, if any, the Purchase Price Premium for
purposes of calculating such Repurchase Price shall be deemed to be
zero.
ARTICLE
IV
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
|
Section
4.01
|
Seller
to Act as Servicer.
|
The
Seller, as independent contract servicer, shall service and administer the
Mortgage Loans in accordance with this Agreement and with Accepted Servicing
Practices, and shall have full power and authority, acting alone, to do or
cause
to be done any and all things in connection with such servicing and
administration which the Seller may deem necessary or desirable and consistent
with the terms of this Agreement and with Accepted Servicing Practices and
exercise the same care that it customarily employs for its own
account. Except as set forth in this Agreement, the Seller shall
service the Mortgage Loans in strict compliance with the servicing provisions
of
the FNMA or FHLMC Guides (special servicing option), which include, but are
not
limited to, provisions regarding the liquidation of Mortgage Loans; the
collection of Mortgage Loan payments, the payment of taxes, insurance and other
charges, the maintenance of hazard insurance with a Qualified Insurer, the
maintenance of mortgage impairment insurance, the maintenance of fidelity bond
and errors and omissions insurance, inspections, the restoration of Mortgaged
Property, the maintenance of Primary Mortgage Insurance Policies, insurance
claims, the title, management and liquidation of REO Property, permitted
withdrawals with respect to REO Property, liquidation reports, and reports
of
foreclosures and abandonments of Mortgaged Property, the transfer of Mortgaged
Property, the release of Mortgage Files, annual statements, and
examination of records and facilities. In the event of any conflict,
inconsistency or discrepancy between any of the servicing provisions of this
Agreement and any of the servicing provisions of the FNMA or FHLMC Guides,
the
provisions of this Agreement shall control and be binding upon the Purchaser
and
the Seller.
Consistent
with the terms of this Agreement, the Seller may waive, modify or vary any
term
of any Mortgage Loan which has come into default or for which default is
reasonably foreseeable or consent to the postponement of any such term or in
any
manner grant indulgence to the related 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 (1) the
final maturity of any such Mortgage Loan shall not be extended beyond the final
maturity date; (2) advances and other amounts in connection with such Mortgage
Loans may be added to the unpaid principal balance of such Mortgage Loan (as
set
forth below) only once during the life of such Mortgage Loan; (3) any amounts
added to the Stated Principal Balance of the Mortgage Loan, or capitalized
amounts added to the Mortgage Loan, will be required to be fully amortized
over
the remaining term of the Mortgage Loan; and (4) the Seller shall not permit
any
modification with respect to any Mortgage Loan that would change the Mortgage
Interest Rate or have the effect of reducing the Mortgage Interest Rate below
the lesser of 50% of the original Mortgage Interest Rate on the Cut-off Date
or
the Servicing Fee Rate, defer or forgive the payment of principal or interest,
reduce or increase the outstanding principal balance (except for actual payments
of principal) or, for adjustable rate Mortgage Loans, change any of the
applicable adjustable rate terms (e.g., Index, Initial Mortgage Interest Rate
Cap, Gross Margin, etc.) and provided, further, that the outstanding principal
balance of any such Mortgage Loan, when taken together with the aggregate Stated
Principal Balance of all other Mortgage Loans that have been so modified since
the Closing Date, does not exceed an amount equal to 5% of the aggregate
principal balance of the Mortgage Loans as of the Cut-Off Date (as such amount
may be adjusted from time to time subject to approval of the Rating
Agencies). In the event of any 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, in accordance with Section 4.04,
the difference between (a) such month’s principal and one month’s interest at
the Mortgage Loan Remittance Rate on the unpaid principal balance of such
Mortgage Loan and (b) the amount paid by the Mortgagor. The Seller
shall be entitled to reimbursement for such advances to the same extent as
for
all other advances pursuant to Section 4.05. Without limiting the
generality of the foregoing, the Seller shall continue, and is hereby authorized
and empowered, to prepare, execute and deliver, 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. Notwithstanding anything herein to the
contrary, the Seller may not enter into a forbearance agreement or similar
arrangement with respect to any Mortgage Loan which runs more than 180 days
after the first delinquent Due Date. Any such agreement shall be
approved by any applicable issuer of a Primary Mortgage Insurance Policy, if
required.
29
In
servicing and administering the Mortgage Loans, the Seller shall employ Accepted
Servicing Practices, giving due consideration to the Purchaser’s reliance on the
Seller. The seller shall accurately and fully report its Mortgagor
credit files to all three credit repositories in a timely manner.
The
Mortgage Loans may be subserviced by a Subservicer on behalf of the Seller
provided that the Subservicer is an entity that engages in the business of
originating, acquiring or servicing mortgage loans, and in either case shall
be
authorized to transact business, and licensed to service mortgage loans, in
the
state or states where the related Mortgaged Properties it is to service are
situated, if and to the extent required by applicable law to enable the
Subservicer to perform its obligations hereunder and under the Subservicing
Agreement, and in either case shall be a FHLMC or FNMA approved mortgage
servicer in good standing, and no event has occurred, including but not limited
to a change in insurance coverage, which would make it unable to comply with
the
eligibility requirements for lenders imposed by FNMA or for seller/servicers
imposed by FHLMC, or which would require notification to FNMA or
FHLMC. In addition, each Subservicer will obtain and preserve its
qualifications to do business as a foreign corporation and its licenses to
service mortgage loans, in each jurisdiction in which such qualifications and/or
licenses are or shall be necessary to protect the validity and enforceability
of
this Agreement, or any of the Mortgage Loans and to perform or cause to be
performed its duties under the related Subservicing Agreement. The
Seller may perform any of its servicing responsibilities hereunder or may cause
the Subservicer to perform any such servicing responsibilities on its behalf,
but the use by the Seller of the Subservicer shall not release the Seller from
any of its obligations hereunder and the Seller shall remain responsible
hereunder for all acts and omissions of the Subservicer as fully as if such
acts
and omissions were those of the Seller. The Seller shall pay all fees
and expenses of the Subservicer from its own funds, and the Subservicer’s fee
shall not exceed the Servicing Fee. The Seller shall notify Purchaser
promptly in writing upon the appointment of any Subservicer.
30
At
the
cost and expense of the Seller, without any right of reimbursement from the
Custodial Account, the Seller shall be entitled to terminate the rights and
responsibilities of the Subservicer and arrange for any servicing
responsibilities to be performed by a successor subservicer meeting the
requirements in the preceding paragraph, provided, however, that nothing
contained herein shall be deemed to prevent or prohibit the Seller, at the
Seller’s option, from electing to service the related Mortgage Loans
itself. In the event that the Seller’s responsibilities and duties
under this Agreement are terminated pursuant to Section 4.13, 8.04, 9.01, 10.01
or 10.02 and if requested to do so by the Purchaser, the Seller shall at its
own
cost and expense terminate the rights and responsibilities of the Subservicer
effective as of the date of termination of the Seller. The Seller
shall pay all fees, expenses or penalties necessary in order to terminate the
rights and responsibilities of the Subservicer from the Seller’s own funds
without reimbursement from the Purchaser.
Notwithstanding
any of the provisions of this Agreement relating to agreements or arrangements
between the Seller and the Subservicer or any reference herein to actions taken
through the Subservicer or otherwise, the Seller shall not be relieved of its
obligations to the Purchaser and shall be obligated to the same extent and
under
the same terms and conditions as if it alone were servicing and administering
the Mortgage Loans. The Seller shall be entitled to enter into an
agreement with the Subservicer for indemnification of the Seller by the
Subservicer and nothing contained in this Agreement shall be deemed to limit
or
modify such indemnification. The Seller will indemnify and hold
Purchaser and its affiliates harmless from any loss, liability or expense
arising out of the Seller’s use of a Subservicer to perform any of the Seller’s
servicing duties, responsibilities and obligations hereunder.
Any
Subservicing Agreement and any other transactions or services relating to the
Mortgage Loans involving the Subservicer shall be deemed to be between the
Subservicer and Seller alone, and the Purchaser shall have no obligations,
duties or liabilities with respect to the Subservicer including no obligation,
duty or liability of Purchaser to pay the Subservicer’s fees and
expenses. For purposes of distributions and advances by the Seller
pursuant to this Agreement, the Seller shall be deemed to have received a
payment on a Mortgage Loan when the Subservicer has received such
payment.
31
|
Section
4.02
|
Collection
of Mortgage Loan Payments.
|
Continuously
from the date hereof until the date each Mortgage Loan ceases to be subject
to
this Agreement, the Seller will proceed diligently to collect all payments
due
under each Mortgage Loan when the same shall become due and payable and shall,
to the extent such procedures shall be consistent with this Agreement, Accepted
Servicing Practices, and the terms and provisions of any related Primary
Mortgage Insurance Policy, follow such collection procedures as it follows
with
respect to mortgage loans comparable to the Mortgage Loans and held for its
own
account. Further, the Seller will take special care in ascertaining
and estimating annual escrow payments, and all other charges that, as provided
in the Mortgage, will become due and payable, so that the installments payable
by the Mortgagors will be sufficient to pay such charges as and when they become
due and payable.
|
Section
4.03
|
Realization
Upon Defaulted Mortgage Loans.
|
The
Seller shall use its best efforts, consistent with the procedures that the
Seller would use in servicing loans for its own account, consistent with
Accepted Servicing Practices, any Primary Mortgage Insurance Policy and the
best
interest of Purchaser, to foreclose upon or otherwise comparably convert the
ownership of properties securing such of the Mortgage Loans as come into and
continue in default and as to which no satisfactory arrangements can be made
for
collection of delinquent payments pursuant to Section
4.01. Foreclosure or comparable proceedings shall be initiated within
one hundred twenty (120) days of default for Mortgaged Properties for which
no
satisfactory arrangements can be made for collection of delinquent
payments. The Seller shall use its best efforts to realize upon
defaulted Mortgage Loans in such manner as will maximize the receipt of
principal and interest by the Purchaser, taking into account, among other
things, the timing of foreclosure proceedings. The foregoing is
subject to the provisions that, in any case in which a Mortgaged Property shall
have suffered damage, the Seller shall not be required to expend its own funds
toward the restoration of such property unless it shall determine in its
discretion (i) that such restoration will increase the proceeds of liquidation
of the related Mortgage Loan to the Purchaser after reimbursement to itself
for
such expenses, and (ii) that such expenses will be recoverable by the Seller
through Insurance Proceeds or Liquidation Proceeds from the related Mortgaged
Property, as contemplated in Section 4.05. The Seller shall obtain
the prior approval of the Purchaser as to restoration expenses in excess of
ten
thousand dollars ($10,000). The Seller shall notify the Purchaser in
writing of the commencement of foreclosure proceedings and prior to the
acceptance or rejection of any offer of reinstatement. The Seller
shall be responsible for all costs and expenses incurred by it in any such
proceedings or functions; provided, however, that it shall be entitled to
reimbursement thereof from the related property, as contemplated in Section
4.05. Notwithstanding anything to the contrary contained herein, in
connection with a foreclosure or acceptance of a deed in lieu of foreclosure,
in
the event the 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, such an inspection or review is to be conducted by a qualified
inspector at the Purchaser’s expense. Upon completion of the
inspection, the Seller shall promptly provide the Purchaser with a written
report of the environmental inspection. After reviewing the
environmental inspection report, the Purchaser shall determine how the Seller
shall proceed with respect to the Mortgaged Property.
32
In
the
event that a Mortgage Loan becomes part of a REMIC, and becomes REO Property,
such property shall be disposed of by the Seller, with the consent of Purchaser
as required pursuant to this Agreement, within three (3) years after becoming
an
REO Property, unless the Seller provides to the trustee under such REMIC an
opinion of counsel to the effect that the holding of such REO Property
subsequent to three (3) years after its becoming REO Property, will not result
in the imposition of taxes on “prohibited transactions” as defined in Section
860F of the Code, or cause the transaction to fail to qualify as a REMIC at
any
time that certificates are outstanding. Seller shall manage,
conserve, protect and operate each such REO Property for the certificateholders
solely for the purpose of its prompt disposition and sale in a manner which
does
not cause such property to fail to qualify as “foreclosure property” within the
meaning of Section 860F(a)(2)(E) of the Code, or any “net income from
foreclosure property” which is subject to taxation under the REMIC provisions of
the Code. Pursuant to its efforts to sell such property, the Seller
shall either itself or through an agent selected by the Seller, protect and
conserve such property in the same manner and to such an extent as is customary
in the locality where such property is located. Additionally, the
Seller shall perform the tax withholding and reporting related to Sections
1445
and 6050J of the Code, if required by the REMIC.
In
connection with any Securitization Transaction, and subject to satisfaction
of
the terms and conditions of any pooling and servicing agreement related thereto,
the Seller, at its own cost and expense, may appoint a special servicer to
service any Mortgage Loan that as of the first day of a fiscal quarter is
delinquent in payment by 90 days or more or is an REO Property (a “Distressed
Mortgage Loan”). The appointment of a special servicer and the
execution of a special servicing agreement with the special servicer shall
be
subject to (1) the consent of any Depositor, Master Servicer and Trustee in
connection with such Securitization Transaction and (2) the receipt of
confirmation from the Rating Agencies that the transfer of servicing to such
special servicer shall not result in a reduction of the then-current rating
previously given by such Rating Agency to the publicly-rated securities issued
in connection with such Securitization Transaction.
|
Section
4.04
|
Establishment
of Custodial Accounts; Deposits in Custodial
Accounts.
|
The
Seller shall segregate and hold all funds collected and received pursuant to
each Mortgage Loan separate and apart from any of its own funds and general
assets and shall establish and maintain one or more Custodial
Accounts. The Custodial Account shall be an Eligible
Account. Funds deposited in the Custodial Account may be drawn on by
the Seller in accordance with Section 4.05. The creation of any
Custodial Account shall be evidenced by a letter agreement in the form shown
in
Exhibit C hereto. The original of such letter agreement shall be
furnished to the Purchaser on the initial Closing Date, and upon the request
of
any subsequent Purchaser.
The
Seller shall deposit in the Custodial Account on a daily basis, and retain
therein the following payments and collections received or made by it subsequent
to each Cut-off Date, or received by it prior to such Cut-off Date but allocable
to a period subsequent thereto, other than in respect of principal and interest
on the Mortgage Loans due on or before such Cut-off Date:
33
(i) all
payments on account of principal, including Principal Prepayments, on the
Mortgage Loans;
(ii) all
payments on account of interest on the Mortgage Loans adjusted to the Mortgage
Loan Remittance Rate;
(iii) all
Liquidation Proceeds;
(iv) any
amounts required to be deposited by the Seller in connection with any REO
Property pursuant to Section 4.13 (including REO Disposition
Proceeds);
(v) all
Insurance Proceeds including amounts required to be deposited pursuant to
Sections 4.08, 4.10 and 4.11, other than proceeds to be held in the Escrow
Account and applied to the restoration or repair of the Mortgaged Property
or
released to the Mortgagor in accordance with Accepted Servicing Practices,
the
loan documents or applicable law;
(vi) all
Condemnation Proceeds affecting any Mortgaged Property which are not released
to
the Mortgagor in accordance with Accepted Servicing Practices the loan documents
or applicable law;
(vii) any
Monthly Advances;
(viii) all
proceeds of any Mortgage Loan repurchased or otherwise collected in accordance
with Article III and Section 2.07;
(ix) any
amounts required to be deposited by the Seller pursuant to Section 4.10 in
connection with the deductible clause in any blanket hazard insurance policy,
such deposit shall be made from the Seller’s own funds, without reimbursement
therefor;
(x) any
amounts required to be deposited in the Custodial Account pursuant to Section
4.01, 4.13 or 6.02:
(xi) with
respect to each Principal Prepayment, an amount (to be paid by the Seller
out of
its own funds without reimbursement therefor) which, when added to all amount
allocable to interest received in connection with such Principle Prepayment,
equals one month’s interest on the amount of the principal so prepaid at the
Mortgage Loan Remittance Rate provided, however, that in no event shall the
aggregate of deposits made by the Seller pursuant to this clause (xi) exceed
the
aggregate amount of the Servicing Fee in the calendar month in which such
deposits are required.
The
foregoing requirements for deposit in the Custodial Account shall be exclusive,
it being understood and agreed that, without limiting the generality of the
foregoing, payments in the nature of late payment charges and assumption
fees,
to the extent permitted by Section 6.01, need not be deposited by the Seller
in
the Custodial Account. Any interest paid on funds deposited in the
Custodial Account by the depository institution shall accrue to the benefit
of
the Seller and the Seller shall be entitled to retain and withdraw such interest
from the Custodial Account pursuant to Section 4.05 (iv).
34
|
Section
4.05
|
Permitted
Withdrawals From the Custodial
Account.
|
The
Seller may, from time to time, withdraw from the Custodial Account for the
following purposes:
(i) to
make payments to the Purchaser in the amounts and in the manner provided
for in
Section 5.01;
(ii) to
reimburse itself for Monthly Advances, the Seller’s right to reimburse itself
pursuant to this subclause (ii) being limited to amounts received on the
related
Mortgage Loan which represent late collections (net of the related Servicing
Fees) of principal and/or interest respecting which any such advance was
made,
it being understood that, in the case of such reimbursement, the Seller’s right
thereto shall be prior to the rights of the Purchaser, except that, where
the
Seller is required to repurchase a Mortgage Loan, pursuant to Section 3.03
or
Section 2.07, the Seller’s right to such reimbursement shall be subsequent to
the payment to the Purchaser of the Repurchase Price pursuant to such Section
and all other amounts required to be paid to the Purchaser with respect to
such
Mortgage Loan;
(iii) to
reimburse itself for unreimbursed Servicing Advances and any unpaid Servicing
Fees, the Seller’s right to reimburse itself pursuant to this subclause (iii)
with respect to any Mortgage Loan being limited to related proceeds from
Liquidation Proceeds, Condemnation Proceeds and Insurance Proceeds in accordance
with the relevant provisions of the FNMA or FHLMC Guides or as otherwise
set
forth in this Agreement or the Underwriting Guidelines;
(iv) to
pay to itself as servicing compensation (a) any interest earned on funds
in the
Custodial Account (all such interest to be withdrawn monthly not later than
each
Remittance Date), and (b) if previously deposited, the Servicing Fee from
that
portion of any payment or recovery as to interest with respect to a particular
Mortgage Loan;
(v) to
pay to itself with respect to each Mortgage Loan that has been repurchased
pursuant to Section 3.03 all amounts received thereon and not distributed
as of
the date on which the related Repurchase Price is
determined;
(vi) to
transfer funds to another Eligible Account in accordance with Section 4.09
hereof;
(vii) to
remove funds inadvertently placed in the Custodial Account by the Seller;
and
(viii) to
clear and terminate the Custodial Account upon the termination of this
Agreement.
The
Seller shall keep and maintain separate accounting, on a Mortgage Loan by
Mortgage Loan basis, for the purpose of justifying any withdrawal from the
Custodial Account pursuant to such subclauses (ii) - (v)
above.
35
|
Section
4.06
|
Establishment
of Escrow Accounts; Deposits in Escrow
Accounts.
|
The
Seller shall segregate and hold all funds collected and received pursuant to
each Mortgage Loan which constitute Escrow Payments separate and apart from
any
of its own funds and general assets and shall establish and maintain one or
more
Escrow Accounts. The Escrow Account shall be an Eligible
Account. Funds deposited in the Escrow Account may be drawn on by the
Seller in accordance with Section 4.07. The creation of any Escrow
Account shall be evidenced by a letter agreement in the form shown in Exhibit
C
hereto. The original of such letter agreement shall be furnished to
the Purchaser on the initial Closing Date, and upon request to any subsequent
purchaser.
The
Seller shall deposit in the Escrow Account or Accounts on a daily basis, and
retain therein:
(i) all
Escrow Payments collected on account of the Mortgage Loans, for the purpose
of
effecting timely payment of any such items as required under the terms of this
Agreement; (ii) all Insurance Proceeds which are to be applied to the
restoration or repair of any Mortgaged Property; and
(ii) all
Servicing Advances for Mortgagors whose Escrow Payments are insufficient to
cover escrow disbursements.
The
Seller shall make withdrawals from the Escrow Account only to effect such
payments as are required under this Agreement, and for such other purposes
as
shall be as set forth or in accordance with Section 4.07. 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 and, to the extent required by
law,
the Seller shall pay interest on escrowed funds to the Mortgagor notwithstanding
that the Escrow Account is non-interest bearing or that interest paid thereon
is
insufficient for such purposes.
|
Section
4.07
|
Permitted
Withdrawals From Escrow
Account.
|
Withdrawals
from the Escrow Account may be made by the Seller only:
|
|
(i)
|
to
effect timely payments of ground rents, taxes, assessments, water
rates,
Primary Mortgage Insurance Policy premiums, if applicable, fire and
hazard
insurance premiums or condominium assessments and comparable
items;
|
|
|
(ii)
|
to
reimburse Seller for any Servicing Advance made by Seller with respect
to
a related Mortgage Loan but only from amounts received on the related
Mortgage Loan which represent late payments or collections of Escrow
Payments thereunder;
|
|
|
(iii)
|
to
refund to the Mortgagor any funds as may be determined to be
overages;
|
|
|
(iv)
|
for
transfer to the Custodial Account in accordance with the terms of
this
Agreement;
|
36
|
|
(v)
|
for
application to restoration or repair of the Mortgaged
Property;
|
|
|
(vi)
|
to
pay to the Seller, or to the Mortgagor to the extent required by
law, any
interest paid on the funds deposited in the Escrow
Account;
|
|
|
(vii)
|
to
clear and terminate the Escrow Account upon the termination of
this
Agreement. As part of its servicing duties, the Seller shall
pay to the Mortgagors interest on funds in the Escrow Account,
to the
extent required by law, and to the extent that interest earned
on funds in
the Escrow Account is insufficient, shall pay such interest from
its own
funds, without any reimbursement therefor;
and
|
|
(viii)
|
to
pay to the Mortgagors or other parties Insurance Proceeds deposited
in
accordance with Section 4.06.
|
|
Section
4.08
|
Payment
of Taxes, Insurance and Other Charges; Maintenance of Primary Mortgage
Insurance Policies; Collections
Thereunder.
|
With
respect to each Mortgage Loan, the Seller shall maintain accurate records
reflecting the status of ground rents, taxes, assessments, water rates and
other
charges which are or may become a lien upon the Mortgaged Property and the
status of Primary Mortgage Insurance Policy premiums and fire and hazard
insurance coverage and shall obtain, from time to time, all bills for the
payment of such charges, including renewal premiums and shall effect payment
thereof prior to the applicable penalty or termination date and at a time
appropriate, for securing maximum discounts allowable, employing for such
purpose deposits of the Mortgagor in the Escrow Account which shall have
been
estimated and accumulated by the Seller in amounts sufficient for such purposes,
as allowed under the terms of the Mortgage or applicable law. To the
extent that the Mortgage does not provide for Escrow Payments, the Seller
shall
determine that any such payments are made by the Mortgagor at the time they
first become due. The Seller assumes full responsibility for the
timely payment of all such bills and shall effect timely payments of all
such
bills irrespective of the Mortgagor’s faithful performance in the payment of
same or the making of the Escrow Payments and shall make advances from its
own
funds to effect such payments.
The
Seller will maintain in full force and effect Primary Mortgage Insurance
Policies issued by a Qualified Insurer with respect to each Mortgage Loan
for
which such coverage is herein required. Such coverage will be
maintained until the loan-to-value ratio of the related Mortgage Loan is
reduced
to 80% or less in the case of a Mortgage Loan having a Loan-to-Value Ratio
at
origination in excess of 80% or as required by state or federal
law. The Seller will not cancel or refuse to renew any Primary
Mortgage Insurance Policy in effect on the applicable Closing Date that is
required to be kept in force under this Agreement unless a replacement Primary
Mortgage Insurance Policy for such canceled or nonrenewed policy is obtained
from and maintained with a Qualified Insurer. The Seller shall not
take any action which would result in noncoverage under any applicable Primary
Mortgage Insurance Policy of any loss which, but for the actions of the Seller
would have been covered thereunder. In connection with any assumption
or substitution agreement entered into or to be entered into pursuant to
Section
6.01, the Seller shall promptly notify the insurer under the related Primary
Mortgage Insurance Policy, if any, of such assumption or substitution of
liability in accordance with the terms of such policy and shall take all
actions
which may be required by such insurer as a condition to the continuation
of
coverage under the Primary Mortgage Insurance Policy. If such Primary
Mortgage Insurance Policy is terminated as a result of such assumption or
substitution of liability, the Seller shall obtain a replacement Primary
Mortgage Insurance Policy as provided above.
37
In
connection with its activities as servicer, the Seller agrees to prepare
and
present, on behalf of itself and the Purchaser, claims to the insurer under
any
Primary Mortgage Insurance Policy in a timely fashion in accordance with
the
terms of such Primary Mortgage Insurance Policy and, in this regard, to take
such action as shall be necessary to permit recovery under any Primary Mortgage
Insurance Policy respecting a defaulted Mortgage Loan. Pursuant to
Section 4.04, any amounts collected by the Seller under any Primary Mortgage
Insurance Policy shall be deposited in the Custodial Account, subject to
withdrawal pursuant to Section 4.05.
|
Section
4.09
|
Transfer
of Accounts.
|
The
Seller may transfer the Custodial Account or the Escrow Account to a different
Eligible Institution from time to time. Such transfer shall be made
only upon obtaining the prior written consent of the Purchaser, which consent
will not be unreasonably withheld.
|
Section
4.10
|
Maintenance
of Hazard Insurance.
|
The
Seller shall cause to be maintained for each Mortgage Loan fire and hazard
insurance with extended coverage as is acceptable to FNMA and FHLMC and
customary in the area where the Mortgaged Property is located in an amount
which
is equal to the lesser of (i) the maximum insurable value of the improvements
securing such Mortgage Loan or (ii) the greater of (a) the outstanding principal
balance of the Mortgage Loan, and (b) an amount such that the proceeds thereof
shall be sufficient to prevent the Mortgagor and/or the Mortgagee from becoming
a co-insurer. If required by the Flood Disaster Protection Act of
1973, as amended, each Mortgage Loan shall be covered by a flood insurance
policy meeting the requirements of the current guidelines of the Federal
Insurance Administration in effect with an insurance carrier acceptable to
FNMA
and/or FHLMC, in an amount representing coverage not less than the least
of (i)
the outstanding principal balance of the Mortgage Loan, (ii) the maximum
insurable value of the improvements securing such Mortgage Loan or (iii)
the
maximum amount of insurance which is available under the Flood Disaster
Protection Act of 1973, as amended. If at any time during the term of
the Mortgage Loan, the Seller determines in accordance with applicable law
and
pursuant to the FNMA or FHLMC 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 forty-five (45) days
after such notification, the Seller shall immediately force place the required
flood insurance on the Mortgagor’s behalf. The Seller shall also
maintain on each REO Property, fire and hazard insurance with extended coverage
in an amount which is at least equal to the maximum insurable value of the
improvements which are a part of such property, and, to the extent required
and
available under the Flood Disaster Protection Act of 1973, as amended, flood
insurance in an amount as provided above. Any amounts collected by
the Seller under any such policies other than amounts to be deposited in
the
Escrow Account and applied to the restoration or repair of the Mortgaged
Property or REO Property, or released to the Mortgagor in accordance with
Accepted Servicing Practices, shall be deposited in the Custodial Account,
subject to withdrawal pursuant to Section 4.05. It is understood and
agreed that no other additional insurance need be required by the Seller
or the
Mortgagor or maintained on property acquired in respect of the
Mortgage Loan, other than pursuant to the FNMA or FHLMC Guides or such
applicable state or federal laws and regulations as shall at any time be
in
force and as shall require such additional insurance. All such
policies shall be endorsed with standard mortgagee clauses with loss payable
to
the Seller and its successors and/or assigns and shall provide for at least
thirty (30) days prior written notice of any cancellation, reduction in the
amount or material change in coverage to the Seller. The Seller shall
not interfere with the Mortgagor’s freedom of choice in selecting either his
insurance carrier or agent, provided, however, that the Seller shall not
accept
any such insurance policies from insurance companies unless such companies
are
Qualified Insurers and currently reflect a General Policy Rating of B:VI
or
better in Best’s Key Rating Guide and are licensed to do business in the state
wherein the property subject to the policy is located.
38
|
Section
4.11
|
Maintenance
of Mortgage Impairment Insurance
Policy.
|
In
the
event that the Seller shall obtain and maintain a blanket policy issued by
an
issuer that has a Best rating of A+:XV insuring against hazard losses on
all of
the Mortgage Loans, then, to the extent such policy provides coverage in
an
amount equal to the amount required pursuant to Section 4.10 and otherwise
complies with all other requirements of Section 4.10, it shall conclusively
be
deemed to have satisfied its obligations as set forth in Section 4.10, it
being
understood and agreed that such policy may contain a deductible clause, in
which
case the Seller shall, in the event that there shall not have been maintained
on
the related Mortgaged Property or REO Property a policy complying with Section
4.10, and there shall have been a loss which would have been covered by such
policy, deposit in the Custodial Account from its own funds (without any
right
of reimbursement therefor) the amount not otherwise payable under the blanket
policy because of such deductible clause. In connection with its
activities as servicer of the Mortgage Loans, the Seller agrees to prepare
and
present, on behalf of the Purchaser, claims under any such blanket policy
in a
timely fashion in accordance with the terms of such policy. Upon
request of the Purchaser, the Seller shall cause to be delivered to the
Purchaser a certified true copy of such policy and shall use its best efforts
to
obtain a statement from the insurer thereunder that such policy shall in
no
event be terminated or materially modified without thirty (30) days’ prior
written notice to the Purchaser.
|
Section
4.12
|
Fidelity
Bond, Errors and Omissions
Insurance.
|
The
Seller shall maintain, at its own expense, a blanket fidelity bond and an
errors
and omissions insurance policy, with broad coverage with responsible companies
on all officers, employees or other persons acting in any capacity with regard
to the Mortgage Loans to handle funds, money, documents and papers relating
to
the Mortgage Loans. The Fidelity Bond 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 and fraud of such
persons. The errors and omissions insurance shall protect and insure
the Seller against losses arising out of errors and omissions and negligent
acts
of such persons. Such errors and omissions insurance shall also
protect and insure the Seller against losses in connection with the failure
to
maintain any insurance policies required pursuant to this Agreement and the
release or satisfaction of a Mortgage Loan without having obtained payment
in
full of the indebtedness secured thereby. No provision of this
Section 4.12 requiring the Fidelity Bond or errors and omissions insurance
shall
diminish or relieve the Seller from its duties and obligations as set forth
in
this Agreement. The minimum coverage under any such bond and
insurance policy shall be at least equal to the corresponding amounts required
by FNMA in the FNMA Guides or by FHLMC in the FHLMC Guides. The
Seller shall deliver to the Purchaser a certificate from the surety and the
insurer as to the existence of the Fidelity Bond and errors and omissions
insurance policy and shall obtain a statement from the surety and the insurer
that such Fidelity Bond or insurance policy shall in no event be terminated
or
materially modified without thirty (30) days’ prior written notice to the
Purchaser. The Seller shall notify the Purchaser within five (5)
business days of receipt of notice that such Fidelity Bond or insurance policy
will be, or has been, materially modified or terminated. The
Purchaser (or any party having the status of Purchaser hereunder) and any
subsidiary thereof and their successors or assigns as their interests may
appear
must be named as loss payees on the Fidelity Bond and as additional insured
on
the errors and omissions policy. Within thirty (30) days of the
initial Closing Date, Seller shall provide Purchaser with an insurance
certificate certifying coverage under this Section 4.12, and will provide
an
update to such certificate upon request, or upon renewal or material
modification of coverage.
39
|
Section
4.13
|
Title,
Management and Disposition of REO
Property.
|
(a) In
the event that title to the Mortgaged Property is acquired in foreclosure
or by
deed in lieu of foreclosure, the deed or certificate of sale shall be taken
in
the name of the Purchaser or its designee, or in the event the Purchaser
or its
designee is not authorized or permitted to hold title to real property in
the
state where the REO Property is located, or would be adversely affected under
the “doing business” or tax laws of such state by so holding title, the deed or
certificate of sale shall be taken in the name of such Person or Persons
as
shall be consistent with an opinion of counsel obtained by the Seller from
an
attorney duly licensed to practice law in the state where the REO Property
is
located (the “Owners”). Any Person or Persons holding such title
other than the Purchaser shall acknowledge in writing that such title is
being
held as nominee for the benefit of the Purchaser.
(b) The
Seller shall notify the Purchaser in accordance with the FNMA or FHLMC Guides
of
each acquisition of REO Property upon such acquisition, together with a copy
of
the appraisal of the Mortgaged Property obtained in connection with such
acquisition, and thereafter assume the responsibility for marketing such
REO
Property in accordance with Accepted Servicing Practices. Thereafter,
the Seller shall continue to provide certain administrative services to the
Purchaser relating to such REO Property as set forth in this Section
4.13. The fee for such administrative services shall be [$1,500] to
be paid upon liquidation of the REO Property. No Servicing Fee shall
be assessed on any REO Property from and after the date of which it becomes
an
REO Property. 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 shall, either itself or through an
agent selected by the Seller, and in accordance with the FNMA or FHLMC Guides
manage, conserve, protect and operate each REO Property in the same manner
that
it manages, conserves, protects and operates other foreclosed property for
its
own account, and in the same manner that similar property in the same locality
as the REO Property is managed. The Seller shall cause each REO
Property to be inspected promptly upon the acquisition of title thereto and
shall cause each REO Property to be inspected at least monthly thereafter
or
more frequently as required by the circumstances. The Seller shall
make or cause the Seller to be made a written report of each such
inspection. Such reports shall be retained in the Mortgage File and
copies thereof shall be forwarded by the Seller to the Purchaser.
40
(c) 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 six (6) months
after title has been taken to such REO Property, unless 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 longer period than six (6) months is permitted under
the foregoing sentence and is necessary to sell any REO Property, the Seller
shall report monthly to the Purchaser as to the progress being made in selling
such REO Property. No REO Property shall be marketed for less than
the Appraised Value, without the prior consent of Purchaser. No REO
Property shall be sold for less than ninety five percent (95%) of its Appraised
Value, without the prior consent of Purchaser. If as of the date any
REO Property is sold or otherwise disposed of there were outstanding
unreimbursed Servicing Advances with respect to the REO Property, the Seller
shall be entitled to reimbursement from the proceeds of such sale for any
related unreimbursed Servicing Advances. All requests for
reimbursement of Servicing Advances shall be in accordance with the FNMA
or
FHLMC Guides. 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. The Seller shall
provide monthly reports to Purchaser in reference to the status of the marketing
of the REO Properties.
(d) Notwithstanding
anything to the contrary contained herein, the Purchaser may, at the Purchaser’s
sole option, terminate the Seller as servicer of any such REO Property without
payment of any termination fee with respect thereto, provided that the Seller
shall on the date said termination takes effect be reimbursed by withdrawal
from
the Custodial Account for any unreimbursed advances of the Seller’s funds made
pursuant to Section 5.03 and any unreimbursed Servicing Advances in each case
relating to the Mortgage Loan underlying such REO Property notwithstanding
anything to the contrary set forth in Section 4.05. In the event of
any such termination, the provisions of Section 11.01 hereof shall apply to
said
termination and the transfer of servicing responsibilities with respect to
such
REO Property to the Purchaser or its designee.
(e) If
a REMIC election is or is to be made with respect to the arrangement under
which
the Mortgage Loans and any REO Property are held, the Seller shall manage,
conserve, protect and operate each REO Property in a manner which does not
cause
such REO Property to fail to qualify as “foreclosure property” within the
meaning of Section 860G(a)(8) of the Code or result in the receipt by such
REMIC
of any “income from non-permitted assets” within the meaning of Section
860F(a)(2)(B) of the Code or any “net income from foreclosure property” within
the meaning of Section 860G(c)(2) of the Code. The Seller shall cause
each REO Property to be inspected promptly upon the acquisition of title thereto
and shall cause each REO Property to be inspected at least annually
thereafter. The Seller shall make or cause to be made a written
report of each such inspection. Such reports shall be retained in the
Mortgage File and copies thereof shall be forwarded by the Seller to the
Purchaser. The Seller shall use its best efforts to dispose of the
REO Property as soon as possible and shall sell such REO Property in any event
within one (1) year after title has been taken to such REO Property, unless
the
Seller determines, and gives appropriate notice to the Purchaser, that a longer
period is necessary for the orderly liquidation of such REO
Property. If a period longer than one year is necessary to sell any
REO property, (i) the Seller shall report monthly to the Purchaser as to the
progress being made in selling such REO Property and (ii) if, with the written
consent of the Purchaser, a purchase money mortgage is taken in connection
with
such sale, such purchase money mortgage shall name the Seller as mortgagee,
and
a separate servicing agreement between the Seller and the Purchaser shall be
entered into with respect to such purchase money
mortgage. Notwithstanding the foregoing, if a REMIC election is made
with respect to the arrangement under which the Mortgage Loans and the REO
Property are held, such REO Property shall be disposed of prior to the
expiration of the third taxable year in which such REO Property was acquired
or
such other period as may be permitted under Section 860G(a)(8) of the Code
unless the Seller provides to the Trustee under such REMIC an opinion of counsel
to the effect that the holding of such REO Property subsequent to the expiration
of the third taxable year will not result in the imposition of taxes on
“prohibited transactions” as defined in Section 860F of the Code, or cause the
transaction to fail to qualify as a REMIC at anytime that certificates are
outstanding.
41
|
Section
4.14
|
Notification
of Maturity Date.
|
With
respect to each Mortgage Loan, the Seller shall execute and deliver to the
Mortgagor any and all necessary notices required under applicable law and the
terms of the related Mortgage Note and Mortgage regarding the maturity date
if
required under applicable law.
|
Section
4.15
|
Notification
of Adjustments.
|
With
respect to each adjustable rate Mortgage Loan, the Seller shall adjust the
Mortgage Interest Rate on the related interest rate adjustment date and shall
adjust the Monthly Payment on the related mortgage payment adjustment date,
if
applicable, in compliance with Accepted Servicing Practices 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 and
Monthly Payment 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 or Monthly Payment in accordance with the terms of the
related Mortgage Note, the Seller shall deposit in the Custodial Account from
its own funds (without any right of reimbursement therefor) the amount of any
interest loss or deferral caused the Purchaser thereby as such interest loss
or
deferral occurs.
|
Section
4.16
|
Compliance
with REMIC Provisions.
|
If
a
REMIC election has been made with respect to the arrangement under which the
Mortgage Loans and REO Property are held, the Seller shall not take any action,
cause the REMIC to take any action or fail to take (or fail to cause to be
taken) any action that, under the REMIC Provisions, if taken or not taken,
as
the case may be, could (i) endanger the status of the REMIC as a REMIC or (ii)
result in the imposition of a tax upon the REMIC (including but not limited
to
the tax on “prohibited transactions” as defined in Section 860F(a)(2) of the
Code and the tax on “contributions” to a REMIC set forth in Section 860G(d) of
the Code) unless the Seller has received an Opinion of Counsel (at the expense
of the party seeking to take such action) to the effect that the contemplated
action will not endanger such REMIC status or result in the imposition of any
such tax.
42
ARTICLE
V
PAYMENTS
TO THE PURCHASER
|
Section
5.01
|
Distributions.
|
On
each
Remittance Date, the Seller shall distribute by wire transfer to the Purchaser
(i) all amounts credited to the Custodial Account as of the close of business
on
the preceding Determination Date, net of charges against or withdrawals from
the
Custodial Account pursuant to Section 4.05, plus (ii) all Monthly Advances,
if
any, which the Seller is obligated to distribute pursuant to Section 5.03,
minus
any amounts attributable to Principal Prepayment received during the month
of
such Remittance Date, which amounts shall be remitted on the next succeeding
Remittance Date together with any additional interest required to be deposited
in the Collection Account in connection with such Principal Prepayment in
accordance with Section 4.04 (xi). It is understood that, by
operation of Section 4.04, the remittance on the first Remittance Date is to
include principal collected after the applicable Cut-off Date, through the
preceding Determination Date plus interest, adjusted to the Mortgage Loan
Remittance Rate collected through such Determination Date exclusive of any
portion thereof allocable to the period prior to such Cut-off Date, with the
adjustments specified in clauses (ii), (iii) and (iv) above.
With
respect to any remittance received by the Purchaser after the Business Day
on
which such payment was due, the 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 (3) 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 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
5.02
|
Statements
to the Purchaser.
|
The
Seller shall furnish to the Purchaser an individual loan accounting report,
in
hard copy and computer readable format, as of the last Business Day of each
month, in the Seller’s assigned loan number order to document Mortgage Loan
payment activity on an individual Mortgage Loan basis. With respect
to each month, the corresponding individual loan accounting report shall be
received by the Purchaser no later than the seventh Business Day of the month
of
the corresponding Remittance Date on a disk or tape or other computer-readable
format in such format as may be mutually agreed upon by both the Purchaser
and
Seller, and no later than the seventh Business Day of the month of the
corresponding Remittance Date in hard copy, which report, in hard copy, shall
be
substantially in the form of FNMA form 2010, monthly remittance report, as
updated or amended by FNMA, which shall contain the following:
43
|
|
(i)
|
With
respect to each Monthly Payment, the amount of such remittance
allocable
to principal (including a separate breakdown of any Principal Prepayment,
including the date of such prepayment, and any prepayment penalties
or
premiums, along with a detailed report of interest on Principal
Prepayment
amounts remitted in accordance with Section
4.04);
|
|
|
(ii)
|
with
respect to each Monthly Payment, the amount of such remittance
allocable
to interest;
|
|
|
(iii)
|
the
amount of servicing compensation received by the Seller during
the prior
distribution period;
|
|
|
(iv)
|
the
aggregate Stated Principal Balance of the Mortgage
Loans;
|
|
|
(v)
|
the
aggregate of any expenses reimbursed to the Servicer during the
prior
distribution period pursuant to Section 4.05;
and
|
|
|
(vi)
|
the
number and aggregate outstanding principal balances of Mortgage
Loans (a)
delinquent (1) 30 to 59 days (2) 60 to 89 days and (3) 90 or more
days;
(b) as to which foreclosure has commenced; and (c) as to which
REO
Property has been acquired.
|
The
Seller shall also provide a trial balance on computer readable tape or other
electronic means of transmission acceptable to the Purchaser, with each such
Report.
The
Seller shall prepare and file any and all information statements or other
filings required to be delivered to any governmental taxing authority or
to the
Purchaser pursuant to any applicable law with respect to the Mortgage Loans
and
the transactions contemplated hereby. In addition, the Seller shall
provide the Purchaser with such information concerning the Mortgage Loans
as is
necessary for the Purchaser to prepare its federal income tax return as the
Purchaser may reasonably request from time to time.
In
addition, not more than sixty (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.
|
Section
5.03
|
Monthly
Advances by the Seller.
|
Not
later
than the close of business on the Business Day preceding each Remittance
Date,
the Seller shall deposit in the Custodial Account from its own funds an amount
equal to all payments not previously advanced by the Seller, whether or not
deferred pursuant to Section 4.01, of principal (due after the related Cut-off
Date) and interest not allocable to the period prior to the related Cut-off
Date, adjusted to the Mortgage Loan Remittance Rate, which were due on a
Mortgage Loan and delinquent at the close of business on the related
Determination Date. The Seller’s obligation to make such Monthly
Advances as to any Mortgage Loan will continue through the date of final
disposition and liquidation of the related Mortgage Loan or any Mortgaged
Property acquired through foreclosure or a conveyance in lieu of foreclosure,
unless the Seller reasonably determines such advance to be
nonrecoverable. In such event, the Seller shall deliver to the
Purchaser an Officer’s Certificate of the Seller to the effect that an officer
of the Seller has reviewed the related Mortgage File and has made the reasonable
determination that any additional advances are
nonrecoverable.
44
|
Section
5.04
|
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. The Seller shall also provide reports on the status of REO
Property containing such information as Purchaser may reasonably
require.
ARTICLE
VI
GENERAL
SERVICING PROCEDURES
|
Section
6.01
|
Assumption
Agreements.
|
The
Seller will, to the extent it has knowledge of any conveyance or prospective
conveyance by any Mortgagor of the Mortgaged Property (whether by absolute
conveyance or by contract of sale, and whether or not the Mortgagor remains
or
is to remain liable under the Mortgage Note and/or the Mortgage), exercise
its
rights to accelerate the maturity of such Mortgage Loan under any “due-on-sale”
clause to the extent permitted by law; provided, however, that the Seller
shall
not exercise any such rights if prohibited by law or the terms of the Mortgage
Note from doing so or if the exercise of such rights would impair or threaten
to
impair any recovery under the related Primary Mortgage Insurance Policy,
if
any. If the Seller reasonably believes it is unable under applicable
law to enforce such “due-on-sale” clause, the Seller, with the approval of the
Purchaser (such approval not to be unreasonably withheld), will enter into
an
assumption agreement with the person to whom the Mortgaged Property has been
conveyed or is proposed to be conveyed, pursuant to which such person becomes
liable under the Mortgage Note and, to the extent permitted by applicable
state
law, the Mortgagor remains liable thereon. Where an assumption is
allowed pursuant to this Section 6.01, the Seller, with the prior consent
of the
Purchaser and the primary mortgage insurer, if any, is authorized to enter
into
a substitution of liability agreement with the person to whom the Mortgaged
Property has been conveyed or is proposed to be conveyed pursuant to which
the
original mortgagor is released from liability and such Person is substituted
as
mortgagor and becomes liable under the related Mortgage Note. Any
such substitution of liability agreement shall be in lieu of an assumption
agreement. The Purchaser shall be deemed to have consented to any
assumption for which the Purchaser was given notification and requested to
consent, but for which neither a consent nor an objection was given by the
Purchaser within two (2) Business Days of such notification.
In
connection with any such assumption or substitution of liability, the Seller
shall follow the underwriting practices and procedures of the FNMA or FHLMC
Guides for “A” quality Mortgage Loans. With respect to an assumption
or substitution of liability, the Mortgage Interest Rate borne by the related
Mortgage Note and the amount of the Monthly Payment may not be changed (and,
for
adjustable rate Mortgage Loans, none of the applicable adjustable rate terms
may
not be changed). 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. The Seller shall notify the
Purchaser that any such substitution of liability or assumption agreement
has
been completed by forwarding to the Purchaser the original of any such
substitution of liability or assumption agreement, which document shall be
added
to the related Mortgage File and shall, for all purposes, be considered a
part
of such Mortgage File to the same extent as all other documents and instruments
constituting a part thereof. All fees collected by the Seller for
entering into an assumption or substitution of liability agreement shall
belong
to the Seller.
45
Notwithstanding
the foregoing paragraphs of this Section or any other provision of this
Agreement, the Seller shall not be deemed to be in default, breach or any other
violation of its obligations hereunder by reason of any assumption of a Mortgage
Loan by operation of law or any assumption which the Seller may be restricted
by
law from preventing, for any reason whatsoever. For purposes of this
Section 6.01, the term “assumption” is deemed to also include a sale of the
Mortgaged Property subject to the Mortgage that is not accompanied by an
assumption or substitution of liability agreement.
|
Section
6.02
|
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 will provide written notification to the Purchaser
(or
Purchaser’s designee) within three (3) days. Such notification shall
state all amounts received or to be received in connection with such payment
which are required to be deposited in the Custodial Account pursuant to Section
4.04 have been or will be so deposited, of a Servicing Officer and shall request
delivery to it of the portion of the Mortgage File held by the Purchaser (or
Purchaser’s designee). The Purchaser (or Purchaser’s designee) shall
no later than five (5) Business Days after receipt of such notification and
request, release or cause to be released to the Seller, the related Mortgage
Loan Documents and, upon its receipt of such documents, the Seller shall
promptly prepare and execute (pursuant to a power of attorney or limited officer
appointment to be provided by Purchaser upon request) by Seller the requisite
satisfaction or release. No expense incurred in connection with any
instrument of satisfaction or deed of reconveyance shall be chargeable to the
Custodial Account.
In
the
event the Seller satisfies or releases a Mortgage without having obtained
payment in full of the indebtedness secured by the Mortgage or should it
otherwise prejudice any right the Purchaser may have under the mortgage
instruments, the Seller, upon written demand, shall remit within two (2)
Business Days to the Purchaser the then outstanding principal balance of the
related Mortgage Loan by deposit thereof in the Custodial
Account. The Seller shall maintain the Fidelity Bond and errors and
omissions insurance 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.
46
From
time
to time and as appropriate for the servicing or foreclosure of the Mortgage
Loan, including for the purpose of collection under any Primary Mortgage
Insurance Policy, the Purchaser shall, upon request of the Seller and delivery
to the Purchaser (or its designee) of a servicing receipt signed by a Servicing
Officer, release the portion of the Mortgage File held by the Purchaser (or
its
designee) to the Seller. Such servicing receipt shall obligate the
Seller to return the related Mortgage Loan Documents to the Purchaser (or
its
designee) when the need therefor by the Seller no longer exists, unless the
Mortgage Loan has been liquidated and the Liquidation Proceeds relating to
the
Mortgage Loan have been deposited in the Custodial Account or the Mortgage
File
or such document has been delivered to an attorney, or to a public trustee
or
other public official as required by law, for purposes of initiating or pursuing
legal action or other proceedings for the foreclosure of the
Mortgaged Property either judicially or non-judicially, and the Seller has
delivered to the Purchaser (or its designee) a certificate of a Servicing
Officer certifying as to the name and address of the Person to which such
Mortgage File or such document was delivered and the purpose or purposes
of such
delivery. Upon receipt of a certificate of a Servicing Officer
stating that such Mortgage Loan was liquidated, the servicing receipt shall
be
released by the Purchaser (or its designee) to the Seller.
|
Section
6.03
|
Servicing
Compensation.
|
As
compensation for its services hereunder, the Seller shall be entitled to
withdraw from the Custodial Account or to retain from interest payments on
the
Mortgage Loans the amounts provided for as the Seller’s Servicing Fee, subject
to payment of compensating interest on Principal
Prepayments. Additional servicing compensation in the form of
assumption fees, as provided in Section 6.01, and late payment charges or
otherwise shall be retained by the Seller to the extent not required to be
deposited in the Custodial Account. The Seller shall be required to
pay all expenses incurred by it in connection with its servicing activities
hereunder and shall not be entitled to reimbursement therefor except as
specifically provided for herein.
|
Section
6.04
|
Annual
Statement as to Compliance; Annual Independent Certified Public
Accountants’ Servicing Report.
|
The
Seller will deliver to the Purchaser annually, after the close of Seller’s
fiscal year:
(1) and
within one hundred twenty (120) days of such fiscal year end, a statement
to the
Purchaser from a firm of independent public accountants which is a member
of the
American Institute of Certified Public Accountants, to the effect that such
firm
has examined certain documents and records relating to the Seller’s servicing of
mortgage loans of the same type as the Mortgage Loans pursuant to servicing
agreements substantially similar to this Agreement, which agreements may
include
this Agreement, and that, on the basis of such an examination, conducted
substantially in accordance with the uniform single audit program for mortgage
bankers, such firm is of the opinion that the Seller’s servicing has been
conducted in compliance with the agreements examined pursuant to this Section
6.05, except for (i) such exceptions as such firm shall believe to be
immaterial, and (ii) such other exceptions as shall be set forth in
such statement. Copies of such statement shall be provided by the
Seller to the Purchaser; and
(2) copies
of Seller’s audited financial statements upon execution by Purchaser of an
agreement to keep confidential the contents of such financial
statements;
47
(3) The
Seller will deliver to the Purchaser, to any master servicer which is master
servicing any of the Mortgage Loans pursuant to a Securitization Transaction
(each, a “Master Servicer”) and to any entity which is the depositor of the
Mortgage Loans pursuant to a Securitization Transaction (each, a “Depositor”)
not later than March 15 of each calendar year, an Officer’s Certificate stating,
as to each signatory thereof, that (i) a review of the activities of the
Seller
during the preceding year and of performance under this Agreement has been
made
under such officers’ supervision and (ii) to the best of such officer’s
knowledge, based on such review, the Seller has fulfilled all of its obligations
under this Agreement throughout such year, or, if there has been a default
in
the fulfillment of any such obligation, specifying each such default known
to
such officer and the nature and status thereof. Copies of such
statement may be provided by the Purchaser to any Person identified as a
prospective purchaser of the Mortgage Loans; and
(4) With
respect to any Mortgage Loans that are subject to a Securitization Transaction,
by March 15 of each year (or if not a Business Day, the immediately preceding
Business Day), or at any other time upon thirty (30) days written request,
an
officer of the Seller shall execute and deliver an Officer’s Certificate to the
Purchaser, any Master Servicer and any Depositor for the benefit of each
such
entity and such entity’s affiliates and the officers, directors and agents of
any such entity and such entity’s affiliates, an Officer’s Certificate in the
form attached hereto as Exhibit I; and
(5) The
Seller shall indemnify and hold harmless the Master Servicer, the Depositor,
the
Purchaser (and if this Agreement has been assigned in whole or in part by
the
Purchaser, any and all Persons previously acting as “Purchaser” hereunder), and
their respective officers, directors, agents and affiliates, and such
affiliates’ officers, directors and agents (any such person, an “Indemnified
Party”) from and against any losses, damages, penalties, fines, forfeitures,
reasonable legal fees and related costs, judgments and other costs and expenses
arising out of or based upon a breach by the Seller or any of its officers,
directors, agents or affiliates of its obligations under this Section 6.04,
or
the negligence, bad faith or willful misconduct of the Seller in connection
therewith. If the indemnification provided for herein is unavailable
or insufficient to hold harmless any Indemnified Party, then the Seller agrees
that it shall contribute to the amount paid or payable by the Indemnified
Party
as a result of the losses, claims, damages or liabilities of the Indemnified
Party in such proportion as is appropriate to reflect the relative fault
of the
Indemnified Party on the one hand and the Seller in the other in connection
with
a breach of the Seller’s obligations under this Section 6.04, or the Seller’s
negligence, bad faith or willful misconduct in connection therewith;
and
(6) It
is acknowledged and agreed that each Master Servicer and Depositor shall
be an
express third party beneficiary of the provisions of this Section 6.04 and
shall
be entitled to independently enforce the provisions of this Section 6.04
with
respect to any obligations owed to such entity as if it were a direct party
to
this Agreement.
48
|
Section
6.05
|
RESERVED.
|
|
Section
6.06
|
Purchaser’s
Right to Examine Seller
Records.
|
The
Purchaser shall have the right to examine and audit upon reasonable notice
to
the Seller, during business hours or at such other times as might be reasonable
under applicable circumstances, any and all of the books, records, documentation
or other information of the Seller, or held by another for the Seller or
on its
behalf or otherwise, which relates to the performance or observance by the
Seller of the terms, covenants or conditions of this Agreement.
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, including but not limited to OTS, FDIC and other similar entities,
access to any documentation regarding the Mortgage Loans in the possession
of
the Seller which may be required by any applicable regulations. Such
access shall be afforded without charge, upon reasonable request, during
normal
business hours and at the offices of the Seller, and in accordance with the
federal government, FDIC, OTS, or any other similar
regulations.
ARTICLE
VII
REPORTS
TO BE PREPARED BY SELLER
|
Section
7.01
|
Seller
Shall Provide Information as Reasonably
Required.
|
The
Seller shall furnish to the Purchaser during the term of this Agreement, such
periodic, special or other reports, information or documentation, whether or
not
provided for herein, as shall be necessary, reasonable or appropriate in respect
to the Purchaser, or otherwise in respect to the Mortgage Loans and the
performance of the Seller under this Agreement, including any reports,
information or documentation reasonably required to comply with any regulations
regarding any supervisory agents or examiners of the Purchaser all such reports
or information to be as provided by and in accordance with such applicable
instructions and directions as the Purchaser may reasonably request in relation
to this Agreement or the performance of the Seller under this
Agreement. The Seller agrees to execute and deliver all such
instruments and take all such action as the Purchaser, from time to time, may
reasonably request in order to effectuate the purpose and to carry out the
terms
of this Agreement.
In
connection with marketing the Mortgage Loans, the Purchaser may make available
to a prospective purchaser audited financial statements of the Seller for the
most recently completed two (2) fiscal years for which such statements are
available, as well as a Consolidated Statement of Condition at the end of the
last two (2) fiscal years covered by any Consolidated Statement of
Operations. If it has not already done so, the Seller shall furnish
promptly to the Purchaser or a prospective purchaser copies of the statements
specified above; provided, however, that prior to furnishing such statements
or
information to any prospective purchaser, the Seller may require such
prospective purchaser to execute a confidentiality agreement in a form
satisfactory to the Seller.
The
Seller shall make reasonably available to the Purchaser or any prospective
Purchaser a knowledgeable financial or accounting officer for the purpose of
answering questions and to permit any prospective purchaser to inspect the
Seller’s servicing facilities for the purpose of satisfying such prospective
purchaser that the Seller has the ability to service the Mortgage Loans as
provided in this Agreement.
49
ARTICLE
VIII
THE
SELLER
|
Section
8.01
|
Indemnification.
|
The
Seller agrees to indemnify the Purchaser and its affiliates and hold them
harmless against any and all claims, losses, damages, penalties, fines,
forfeitures, legal fees and related costs, judgments, and any other costs,
fees
and expenses that the Purchaser or any of its affiliates may sustain in any
way
related to the failure of the Seller to observe and perform its duties,
obligations, covenants, and agreements to service the Mortgage Loans in strict
compliance with the terms of this Agreement. The Seller agrees to
indemnify the Purchaser and its affiliates and hold them harmless against any
and all claims, losses, damages, penalties, fines, forfeitures, legal fees
and
related costs, judgments, and any other costs, fees and expenses that the
Purchaser or any of its affiliates may sustain in any way related to the breach
of a representation, warranty or covenant set forth in this
Agreement. The Seller shall immediately notify the Purchaser if a
claim is made by a third party with respect to this Agreement or the Mortgage
Loans, assume (with the consent of the Purchaser) the defense of any such claim
and pay all expenses in connection therewith, including counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be entered
against it or the Purchaser in respect of such claim. The Seller
shall follow any written instructions received from the Purchaser in connection
with such claim. The provisions of this Section 8.01 shall survive
termination of this Agreement.
|
Section
8.02
|
Merger
or Consolidation of the Seller.
|
The
Seller will keep in full effect its existence, rights and franchises as a
corporation under the laws of the state of its incorporation except as permitted
herein, and will 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 the Seller may be merged or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Seller
shall
be a party, or any Person succeeding to the business of the Seller whether
or
not related to loan servicing, 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 GAAP net worth of not less than $25,000,000, (ii)
the
deposits of which are insured by the FDIC, SAIF and/or BIF, or which is a
HUD-approved mortgagee whose primary business is in origination and servicing
of
first lien mortgage loans, and (iii) who is a FNMA or FHLMC approved
seller/servicer in good standing.
50
|
Section
8.03
|
Limitation
on Liability of the Seller and
Others.
|
Neither
the Seller nor any of the officers, employees or agents of the Seller shall
be
under any liability to the Purchaser for any action taken or for refraining
from
the taking of any action in good faith pursuant to this Agreement, or for
errors
in judgment made in good faith; 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 negligence, bad faith
or
willful misconduct, or any breach of the terms and conditions of this
Agreement. The Seller and any officer, employee or agent of the
Seller may rely in good faith on any document of any kind prima facie properly
executed and submitted by the Purchaser 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
reasonable opinion may involve it in any expenses or liability; provided,
however, that the Seller may, with the consent of the Purchaser, undertake
any
such action which it may deem necessary or desirable in respect to this
Agreement and the rights and duties of the parties hereto. In such
event, the reasonable legal expenses and costs of such action and any liability
resulting therefrom shall be expenses, costs and liabilities for which the
Purchaser will be liable, and the Seller shall be entitled to be reimbursed
therefor from the Purchaser upon written demand.
|
Section
8.04
|
Seller
Not to Assign or Resign.
|
The
Seller shall not assign this Agreement or resign from the obligations and duties
hereby imposed on it except by mutual consent of the Seller and the Purchaser
or
upon the determination that its 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 11.01.
|
Section
8.05
|
No
Transfer of Servicing.
|
With
respect to the retention of the Seller to service the Mortgage Loans hereunder,
the Seller acknowledges that the Purchaser has acted in reliance upon the
Seller’s independent status, the adequacy of its servicing facilities, plan,
personnel, records and procedures, its integrity, reputation and financial
standing and the continuance thereof. Without in anyway limiting the
generality of this Section, the Seller shall not either assign this Agreement
or
the servicing hereunder or delegate its rights or duties hereunder or any
portion thereof, or sell or otherwise dispose of all or substantially all of
its
property or assets, without the prior written approval of the Purchaser, which
consent shall be granted or withheld in the Purchaser’s sole
discretion.
Without
in any way limiting the generality of this Section 8.05, 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 without (i)
satisfying the requirements set forth herein or (ii) the prior written consent
of the Purchaser, then the Purchaser shall have the right to terminate this
Agreement as set forth in Section 10.02, without any payment of any penalty
or
damages and without any liability whatsoever to the Seller (other than with
respect to accrued but unpaid Servicing Fees and Servicing Advances remaining
unpaid) or any third party.
51
ARTICLE
IX
DEFAULT
|
Section
9.01
|
Events
of Default.
|
In
case
one or more of the following Events of Default by the Seller shall occur and
be
continuing, that is to say:
|
|
(i)
|
any
failure by the Seller to remit to the Purchaser any payment required
to be
made under the terms of this Agreement which continues unremedied
for a
period of three (3) Business Days 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
|
|
|
(ii)
|
failure
on the part of the Seller duly to observe or perform in any material
respect any other of the covenants or agreements on the part of the
Seller
set forth in this Agreement which continues unremedied for a period
of
thirty (30) days (except that such number of days shall be fifteen
(15) in
the case of a failure to pay any premium for any insurance policy
required
to be maintained under this Agreement) after the date on which written
notice of such failure, requiring the same to be remedied, shall
have been
given to the Seller by the Purchaser;
or
|
|
|
(iii)
|
a
decree or order of a court or agency or supervisory authority having
jurisdiction for the appointment of a conservator or receiver or
liquidator in any insolvency, bankruptcy, readjustment of debt, 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 sixty (60) days; or
|
|
|
(iv)
|
the
Seller shall consent to the appointment of a conservator or receiver
or
liquidator in any insolvency, bankruptcy, 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
|
|
|
(v)
|
the
Seller shall admit in writing its inability to pay its debts generally
as
they become due, file a petition to take advantage of any applicable
insolvency or reorganization statute, make an assignment for the
benefit
of its creditors, or voluntarily suspend payment of its obligations;
or
|
|
|
(vi)
|
the
Seller ceases to be approved by either FNMA or FHLMC as a mortgage
loan
seller and servicer for more than thirty (30) days;
or
|
52
|
|
(vii)
|
the
Seller attempts to assign its right to servicing compensation hereunder
or
the Seller attempts, without the consent of the Purchaser, to sell
or
otherwise dispose of all or substantially all of its property or
assets or
to assign this Agreement or the servicing responsibilities hereunder
or to
delegate its duties hereunder or any portion thereof;
or
|
|
(viii)
|
the
Seller ceases to be (a) licensed to service first lien residential
mortgage loans in each jurisdiction in which a Mortgaged Property
is
located and such licensing is required, and (b) qualified to transact
business in any jurisdiction where it is currently so qualified,
but only
to the extent such non-qualification materially and adversely affects
the
Seller’s ability to perform its obligations hereunder;
or
|
|
|
(ix)
|
the
Seller fails to meet the eligibility criteria set forth in the last
sentence of Section 8.02, then, and in each and every such case,
so long
as an Event of Default shall not have been remedied, the Purchaser,
by
notice in writing to the Seller may, in addition to whatever rights
the
Purchaser may have under Sections 3.03 and 8.01 and at law or equity
or to
damages, including injunctive relief and specific performance, terminate
all the rights and obligations of the Seller under this Agreement
and in
and to the Mortgage Loans and the proceeds thereof without compensating
the Seller for the same. On or after the 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
11.01. Upon written request from the Purchaser, the Seller
shall prepare, execute and deliver, any and all documents and other
instruments, place in such successor’s possession all Mortgage Files, and
do or accomplish all other acts or things necessary or appropriate
to
effect the purposes of such notice of termination, whether to complete
the
transfer and endorsement or assignment of the Mortgage Loans and
related
documents, or otherwise, at the Seller’s sole expense. The
Seller agrees to cooperate with the Purchaser and such successor
in
effecting the termination of the Seller’s responsibilities and rights
hereunder, 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 or any REO
Property; or
|
|
|
(x)
|
the
Seller fails to duly perform, within the required time period, its
obligations under Section 6.04 of this Agreement, which failure continues
unremedied for a period of thirty (30) days after the date on which
written notice of such failure, requiring the same to be remedied,
shall
have been given to the Seller by any party to this Agreement or by
any
master servicer responsible for master servicing the Mortgage Loans
pursuant to a securitization of such Mortgage
Loans.
|
|
Section
9.02
|
Waiver
of Defaults.
|
The
Purchaser may waive only by written notice any default by the Seller in the
performance of its obligations hereunder and its consequences. Upon
any such waiver of a past default, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been remedied for
every purpose of this Agreement. No such waiver shall extend to any
subsequent or other default or impair any right consequent thereon except to
the
extent expressly so waived in writing.
53
ARTICLE
X
TERMINATION
|
Section
10.01
|
Termination.
|
The
respective obligations and responsibilities of the Seller shall terminate
upon: (i) the later of the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan or the disposition
of
all REO Property and the remittance of all funds due hereunder; or (ii) by
mutual consent of the Seller and the Purchaser in writing; or (iii) termination
with or without cause under the terms of this Agreement.
|
Section
10.02
|
Termination
Without Cause.
|
The
Purchaser may, at its sole option, terminate the rights of the
Seller as Servicer hereunder, without cause, upon written
notice. Any such notice of termination shall be in writing and
delivered to the Seller as provided in Section 11.05 of this
Agreement. In the event of such termination, the Purchaser agrees to
pay, as liquidated damages, a sum equal to the market value of the servicing
rights as determined by a qualified, licensed independent mortgage broker
mutually selected by the parties.
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
|
Section
11.01
|
Successor
to the Seller.
|
Prior
to
termination of Seller’s responsibilities and duties under this Agreement
pursuant to Sections 4.13, 8.04, 9.01, 10.01 or 10.02, the Purchaser shall
(i)
succeed to and assume all of the Seller’s responsibilities, rights, duties and
obligations under this Agreement, or (ii) appoint a successor which shall
succeed to all rights and assume all of the responsibilities, duties and
liabilities of the Seller under this Agreement prior to 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 the Purchaser 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 Seller
pursuant to the aforementioned Sections shall not become effective until a
successor shall be appointed pursuant to this Section and shall in no event
relieve the Seller of the representations and warranties made pursuant to
Sections 3.01, 3.02 and 3.03 and the remedies available to the Purchaser and
under Section 8.01, it being understood and agreed that the provisions of
Article III and Section 8.01 shall be applicable to the Seller notwithstanding
any such resignation or termination of the Seller, or the termination of this
Agreement.
54
Any
successor appointed as provided herein shall execute, acknowledge and deliver
to
the Seller and to the Purchaser an instrument accepting such appointment,
whereupon such successor shall become fully vested with all the rights, powers,
duties, responsibilities, obligations and liabilities of the Seller, with like
effect as if originally named as a party to this Agreement. Any
termination or resignation of the Seller or this Agreement pursuant to Section
4.13, 8.04, 9.01, 10.01, or 10.02 shall not affect any claims that the Purchaser
may have against the Seller arising prior to any such termination or
resignation.
The
Seller shall promptly deliver to the successor the funds in the Custodial
Account and the Escrow Account and the Mortgage Files and related documents
and
statements held by it hereunder and the Seller shall account for all
funds. The Seller shall execute and deliver such instruments and do
such other things all as may reasonably be required to more fully and definitely
vest and confirm in the successor all such rights, powers, duties,
responsibilities, obligations and liabilities of the Seller. The
successor shall make arrangements as it may deem appropriate to reimburse the
Seller for unrecovered Servicing Advances which the successor retains hereunder
and which would otherwise have been recovered by the Seller pursuant to this
Agreement but for the appointment of the successor servicer.
Upon
a
successor’s acceptance of appointment as such, the Seller shall notify by mail
the Purchaser of such appointment.
|
Section
11.02
|
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.
|
Section
11.03
|
Recordation
of Agreement.
|
To
the
extent permitted by applicable law, this Agreement is subject to recordation
in
all appropriate public offices for real property records in all the counties
or
other comparable jurisdictions in which any or all the properties subject to
the
Mortgages are situated, and in any other appropriate public recording office
or
elsewhere, such recordation to be effected by the Seller at the Seller’s expense
on direction of the Purchaser accompanied by an Opinion of Counsel to the effect
that such recordation materially and beneficially affects the interest of the
Purchaser or is necessary for the administration or servicing of the Mortgage
Loans.
|
Section
11.04
|
Governing
Law.
|
This
Agreement shall be governed by and construed in accordance with internal laws
of
the State of New York without regard to conflict of laws
principles. The parties hereby agree to submit to the jurisdiction of
the Courts of the State of New York and/or the United States Federal Court
for
the District encompassing New York. The parties further agree not to
raise any objection to venue of a court located in the State of New
York.
55
|
Section
11.05
|
Notices.
|
Any
demands, notices or other communications; permitted or required hereunder shall
be in writing and shall be deemed conclusively to have been given if personally
delivered at or mailed by registered mail, postage prepaid, and return receipt
requested or certified mail, return receipt requested, or transmitted by telex,
telegraph or telecopier and confirmed by a similar mailed writing, as
follows:
if
to the
Seller:
SunTrust
Mortgage, Inc.
000
Xxxxxx Xxxxxx
Mailcode
MTG 1785
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Xxx X. Xxxxxxx
First
Vice President
Secondary
Marketing
|
|
(i)
|
if
to the Purchaser:
|
Mortgage
Asset Securitization Transactions, Inc.
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
XX 00000
Attention: Legal
Department
or
such
other address as may hereafter be furnished to the other party by like
notice. Any such demand, notice or communication hereunder shall be
deemed to have been received on the date delivered to or received at the
premises of the addressee (as evidenced, in the case of registered or certified
mail, by the date noted on the return receipt).
|
Section
11.06
|
Severability
of Provisions.
|
Any
part,
provision, representation or warranty of this Agreement which is prohibited
or
which is held to be void or unenforceable shall be ineffective to the extent
of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation or warranty of
this Agreement which is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall be ineffective, as to such jurisdiction,
to the extent of such prohibition or unenforceability without invalidating
the
remaining provisions hereof, and any such prohibition or unenforceability in
any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent
permitted by applicable law, the parties hereto waive any provision of law
which
prohibits or renders void or unenforceable any provision hereof. If
the invalidity of any part, provision, representation or warranty of this
Agreement shall deprive any party of the economic benefit intended to be
conferred by this Agreement, the parties shall negotiate, in good faith, to
develop a structure the economic effect of which is nearly as possible the
same
as the economic effect of this Agreement without regard to such
invalidity.
56
|
Section
11.07
|
Exhibits.
|
The
exhibits to this Agreement are hereby incorporated and made a part hereof and
are an integral part of this Agreement.
|
Section
11.08
|
General
Interpretive Principles.
|
For
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires:
|
|
(i)
|
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;
|
|
|
(ii)
|
accounting
terms not otherwise defined herein have the meanings assigned to
them in
accordance with GAAP;
|
|
|
(iii)
|
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;
|
|
|
(iv)
|
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;
|
|
|
(v)
|
the
words “herein,” “hereof,” “hereunder,” and other words of similar import
refer to this Agreement as a whole and not to any particular
provision;
|
|
|
(vi)
|
the
term “include” or “including” shall mean without limitation by reason of
enumeration; and
|
|
|
(vii)
|
headings
of the Articles and Sections in this Agreement are for reference
purposes
only and shall not be deemed to have any substantive
effect.
|
|
Section
11.09
|
Reproduction
of Documents.
|
This
Agreement and all documents relating thereto, including, without limitation,
(i)
consents, waivers and modifications which may hereafter be executed, (ii)
documents received by any party at the closing, and (iii) financial statements,
certificates and other information previously or hereafter furnished, may be
reproduced by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties agree that any
such reproduction shall be admissible in evidence as the original itself in
any
judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in
evidence.
57
|
Section
11.10
|
Recordation
of Assignments of Mortgage.
|
To
the
extent permitted by applicable law, each of the Assignments of Mortgage is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any
or
all of the Mortgaged Properties are situated, and in any other appropriate
public recording office or elsewhere, such recordation to be effected by the
Seller at the Seller’s expense in the event recordation is either necessary
under applicable law or requested by the Purchaser, at its sole
option.
|
Section
11.11
|
Assignment
by Purchaser.
|
The
Purchaser shall have the right, without the consent of the Seller hereof, 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 any such assignment, the
Person to whom such assignment is made shall succeed to all rights and
obligations of the Purchaser under this Agreement to the extent of the related
Mortgage Loan or Mortgage Loans and this Agreement, to the extent of the related
Mortgage Loan or Loans, shall be deemed to be a separate and distinct Agreement
between the Seller and such Purchaser, and a separate and distinct Agreement
between the Seller and each other Purchaser to the extent of the other related
Mortgage Loan or Loans. In the event that this Agreement is assigned
to any Person to whom the servicing or master servicing of any Mortgage Loan
is
sold or transferred, the rights and benefits under this agreement which inure
to
the Purchaser shall inure to the benefit of both the Person to whom such
Mortgage Loan is transferred and the Person to whom the servicing or master
servicing of the Mortgage Loan has been transferred; provided that, the right
to
require a Mortgage Loan to be repurchased by the Seller pursuant to Article
III
shall be retained solely by the Purchaser.
|
Section
11.12
|
No
Partnership.
|
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
Purchaser.
|
Section
11.13
|
Execution;
Successors and Assigns.
|
This
Agreement may be executed in one or more counterparts and by the different
parties hereto on separate counterparts, each of which, when so executed, shall
be deemed to be an original; such counterparts, together, shall constitute
one
and the same agreement. Subject to Section 8.04, this Agreement shall
inure to the benefit of and be binding upon the Seller and the Purchaser and
their respective successors and assigns. This Agreement shall not be
assigned, pledged or hypothecated by the Seller to a third party (or an
affiliate of the Seller) without the consent of the Purchaser.
58
|
Section
11.14
|
Entire
Agreement.
|
The
Seller acknowledges that no representations, agreements or promises were made
to
the Seller by the Purchaser or any of its employees other than those
representations, agreements or promises specifically contained
herein. This Agreement sets forth the entire understanding between
the parties hereto and shall be binding upon all successors of both
parties. In the event of any inconsistency between the Purchase Price
and Terms Letter, for the related pool of Mortgage Loans and this Agreement,
this Agreement shall control.
|
Section
11.15
|
No
Solicitation.
|
From
and
after each Closing Date, the Seller agrees that it will not take any
action or permit or cause any action to be taken by the Seller, any of its
agents or affiliates, or by any independent contractors on the Seller’s behalf,
to personally, by telephone, mail, or electronically by e-mail or through the
internet or otherwise solicit the borrower or obligor under any Mortgage Loan
to
refinance the 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 relating to the solicitation of any Mortgagors to refinance any
Mortgage Loans 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
applicable 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 or on behalf of the Seller or any
affiliate of the Seller which are directed to the general public at large,
or
segments thereof, provided that no segment shall consist primarily of the
Mortgage Loans, including, without limitation, mass mailing, newspaper, radio
and television advertisements shall not constitute solicitation under this
Section 11.15. The Seller shall use its best efforts to prevent the
sale of the name of any Mortgagor to any Person who is not an affiliate of
the
Seller.
|
Section
11.16
|
Closing.
|
The
closing for the purchase and sale of the Mortgage Loans shall take place on
the
applicable Closing Date. The closing shall be either: by
telephone, confirmed by letter or wire as the parties shall agree, or conducted
in person, at such place as the parties shall agree.
The
closing for the Mortgage Loans to be purchased on each Closing Date shall be
subject to each of the following conditions:
|
|
(a)
|
[reserved];
|
|
|
(b)
|
all
of the representations and warranties of the Seller under this Agreement
shall be true and correct as of the applicable Closing Date and no
event
shall have occurred which, with notice or the passage of time, would
constitute a material default under this
Agreement;
|
|
|
(c)
|
the
Purchaser shall have received, or the Purchaser’s attorneys shall have
received in escrow, all closing documents, in such forms as are agreed
upon and acceptable to the Purchaser (including, but not limited
to,
completed original copies of all exhibits hereto, including but not
limited to those set forth in clause (e) below), duly executed by
all
signatories other than the Purchaser as required pursuant to the
terms
hereof,
|
59
|
|
(d)
|
the
Seller shall have delivered and released to the Purchaser (or its
designee) on or prior to the applicable Closing Date all documents
required pursuant to the terms of this
Agreement;
|
|
|
(e)
|
the
Seller shall have complied with all other terms and conditions of
this
Agreement and the related Purchase Price and Terms Letter;
and
|
|
|
(f)
|
an
Assignment and Conveyance in the form of Exhibit H1
hereto.
|
Subject
to the foregoing conditions, the Purchaser shall pay to the Seller on the
applicable Closing Date the Purchase Price for the related pool of
Mortgage Loans, plus accrued interest pursuant to Section 2.02 of this
Agreement, by wire transfer of immediately available funds to the account
designated by the Seller.
|
|
(g)
|
On
or before the initial Closing Date, the Seller shall submit to the
Purchaser fully executed originals of the following
documents:
|
|
|
1.
|
this
Agreement, in four counterparts;
|
|
|
2.
|
a
Custodial Account Letter Agreement in the form attached as Exhibit
C hereto;
|
|
|
3.
|
an
Escrow Account Letter Agreement in the form attached as Exhibit C
hereto;
|
|
|
4.
|
an
Officer’s Certificate, in the form of Exhibit E hereto, including
all attachments thereto; and
|
|
|
5.
|
an
Opinion of Counsel to the Seller, in the form of Exhibit F
hereto.
|
|
|
(i)
|
On
or before each Closing Date, the Seller shall submit to the Purchaser
fully executed originals of the following
documents:
|
|
|
1.
|
the
related Purchase Price and Terms
Letter;
|
|
|
2.
|
the
related Mortgage Loan Schedule;
|
|
|
3.
|
an
Officer’s Certificate, in the form of Exhibit E hereto, including
all attachments thereto;
|
|
|
4.
|
if
requested by the Purchaser, an Opinion of Counsel to the Seller,
in the
form of Exhibit F hereto;
|
|
|
5.
|
if
any of the Mortgage Loans has at any time been subject to any security
interest, pledge or hypothecation for the benefit of any Person,
a
Security Release Certification, in the form of Exhibit G hereto,
executed by such Person;
|
|
|
6.
|
a
certificate or other evidence of merger or change of name, signed
or
stamped by the applicable regulatory authority, if any of the Mortgage
Loans were acquired by the Seller by merger or acquired or originated
by
the Seller while conducting business under a name other than its
present
name, if applicable; and
|
60
|
|
7.
|
an
Assignment and Conveyance in the form of Exhibit H1
hereto.
|
|
Section
11.17
|
Cooperation
of Seller with a
Reconstitution.
|
The
Seller and the Purchaser agree that with respect to some or all of the Mortgage
Loans, on or after the Closing Date, on one or more dates (each a
“Reconstitution Date”) at the Purchaser’s sole option, the Purchaser may effect
a Reconstitution of some or all of the Mortgage Loans then subject to this
Agreement, without recourse, to:
|
|
(a)
|
one
or more third party purchasers in one or more in whole loan transfers
(each, a “Whole Loan Transfer”); or
|
|
|
(b)
|
one
or more trusts or other entities to be formed as part of one or more
Securitization Transactions.
|
With
respect to each Whole Loan Transfer and each Securitization Transaction entered
into by the Purchaser, the Seller agrees (1) to cooperate fully with the
Purchaser, any prospective purchaser, any master servicer or trustee and/or
any
issuer or other participant in such Reconstitution (“Reconstitution Parties”)
with respect to all reasonable requests and due diligence procedures; (2) to
execute, deliver and perform all seller’s warranties and servicing agreements,
participation and servicing agreements, pooling and servicing agreements or
similar agreements (collectively, “Reconstitution Agreements”) requested by the
Purchaser, which shall contain, among other provisions, such provisions and
requirements as will, in the case of a Securitization Transaction, enable some
or all of the securities issued in connection with such Securitization
Transaction to be rated in the highest rating category by one or more Rating
Agencies; and (3) to restate in the Reconstitution Agreement or in another
appropriate agreement or letter requested by the Purchaser the representations
and warranties set forth in this Agreement as of the settlement or closing
date
in connection with such Reconstitution (each, a “Reconstitution Date”); provided
that with respect to those representations and warranties that relate to
delinquency or condition of the Mortgaged Property, the Seller shall only be
required to restate such representations and warranties as of the Closing Date
and shall represent and warrant as to the actual status thereof as of the
Reconstitution Date. The Seller shall provide to the Purchaser and/or
any other participants in such Reconstitution: (i) any and all
information and appropriate verification of information which may be reasonably
available to the Seller, whether through letters of its auditors, opinions
of
counsel or otherwise, as the Purchaser or any such other participant shall
request; 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 agreed upon by the Seller and the
Purchaser or any such other participant. The Seller shall indemnify
the Purchaser and Reconstitution Parties for the accuracy and completeness
of
all such information provided by or on behalf of the Seller. The
Purchaser shall be responsible for the costs relating to the delivery of such
information.
In
the
event the Seller has agreed to and does hold record title to the Mortgages
prior
to the Reconstitution Date, the Seller shall prepare an assignment of mortgage
in blank to the prospective purchaser, issuer or trustee, as applicable, from
the Seller, acceptable to the prospective purchaser, issuer or trustee, as
applicable, for each Mortgage Loan that is part of the Reconstitution and shall
pay all preparation and initial recording costs associated
therewith. In connection with the Reconstitution, and at the expense
of Purchaser, 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 the prospective purchaser or trustee, as applicable, upon the
Seller’s receipt thereof. Additionally, at the expense of Purchaser,
the Seller shall prepare and execute, at the direction of the Purchaser, any
note endorsement in connection with any and all seller/servicer
agreements.
61
All
Mortgage Loans not sold or transferred pursuant to a Reconstitution shall remain
subject to this Agreement and, if this Agreement shall remain in effect with
respect to the related Mortgage Loans, 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.
|
Section
11.18
|
Financial
Statements.
|
The
Seller understands that in connection with the Purchaser’s marketing of the
Mortgage Loans, the Purchaser shall make available to prospective purchasers
the
Seller’s financial statements for the most recently completed three (3) fiscal
years respecting which such statements are available. The Seller also
shall make available any comparable interim statements to the extent any such
statements have been prepared by the Seller (and are available upon request
to
members or stockholders of the Seller or the public at large). The
Seller, if it has not already done so, agrees to furnish promptly to the
Purchaser copies of the statements specified above. The Seller also
shall make available information on its servicing performance with respect
to
loans serviced for others, including delinquency ratios.
The
Seller also agrees to allow access to knowledgeable financial, accounting,
origination and servicing officers of the Seller for the purpose of answering
questions asked by any prospective purchaser regarding recent developments
affecting the Seller, its loan origination or servicing practices or the
financial statements of the Seller.
|
Section
11.19
|
Mandatory
Delivery; Grant of Security
Interest.
|
The
sale
and delivery of each Mortgage Loan on or before the related Closing Date is
mandatory from and after the date of the execution of the related Purchase
Price
and Terms Letter, it being specifically understood and agreed that each Mortgage
Loan is unique and identifiable on the date of such Purchase Price and Terms
Letter or preliminary notice and that an award of money damages would be
insufficient to compensate the Purchaser for the losses and damages incurred
by
the Purchaser (including damages to prospective purchasers of the Mortgage
Loans) in the event of the Seller’s failure to deliver each of the related
Mortgage Loans or one or more Mortgage Loans otherwise acceptable to the
Purchaser on or before the related Closing Date. The Seller hereby
grants to the Purchaser a lien on and a continuing security interest in each
Mortgage Loan and each document and instrument evidencing each such Mortgage
Loan to secure the performance by the Seller of its obligations hereunder,
and
the Seller agrees that it holds such Mortgage Loans in custody for the Purchaser
subject to the Purchaser’s (i) right to reject any Mortgage Loan under the terms
of this Agreement and the related Purchase Price and Terms Letter and (ii)
obligation to pay the related Purchase Price for the Mortgage
Loans. All rights and remedies of the Purchaser under this Agreement
are distinct from, and cumulative with, any other rights or remedies under
this
Agreement or afforded by law or equity and all such rights and remedies may
be
exercised concurrently, independently or successively.
62
|
Section
11.20
|
Intention
of the Parties.
|
It
is the
intention of the parties that the Purchaser is purchasing, and the Seller is
selling, the Mortgage Loans and not a debt instrument of the Seller or another
security. Accordingly, the parties hereto each intend to treat the
transaction for Federal income tax purposes as a sale by the Seller, and a
purchase by the Purchaser, of the Mortgage Loans. The Purchaser shall
have the right to review the Mortgage Loans and the related Mortgage Files
to
determine the characteristics of the Mortgage Loans which shall affect the
Federal income tax consequences of owning the Mortgage Loans and the Seller
shall cooperate with all reasonable requests made by the Purchaser in the course
of such review.
|
Section
11.21
|
Waivers.
|
No
term
or provision of this Agreement may be waived or modified unless such waiver
or
modification is in writing and signed by the party against whom such waiver
or
modification is sought to be enforced.
|
Section
11.22
|
Further
Agreements.
|
The
Seller and the Purchaser each agree to execute and deliver to the other such
reasonable and appropriate additional documents, instruments or agreements
as
may be necessary or appropriate to effectuate the purposes of this
Agreement.
|
Section
11.23
|
Reproduction
of Documents.
|
This
Agreement and all documents relating thereto, including, without limitation,
(a)
consents, waivers and modifications which may hereafter be executed, (b)
documents received by any party at the closing, and (c) financial statements,
certificates and other information previously or hereafter furnished, may be
reproduced by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties agree that any
such reproduction shall be admissible in evidence as the original itself in
any
judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in
evidence.
|
Section
11.24
|
No
Petition. Limited Recourse.
|
Notwithstanding
any other provision of this Agreement, the Seller covenants and agrees that
it
shall not, prior to the date which is one year and one day (or, if longer,
any
applicable preference period plus one day) after termination of this agreement
pursuant to Section 10.02 hereof or, if any securities are issued in connection
with a Securitization Transaction, for at least one year and one day (or, if
longer, any applicable preference period plus one day) after the latest maturing
security is paid in full, institute against, or join any other Person in
instituting against, the Purchaser, the Depositor, the Issuing Entity, the
Trustee or the Master Servicer, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding, or any similar proceeding under any
federal or state bankruptcy or similar law; provided that nothing in this
provision shall preclude, or be deemed to stop, the Seller (a) from taking
any
action prior to the expiration of the aforementioned one year and one day period
in (i) any case or proceeding voluntarily filed or commenced by the Purchaser
or
(ii) any involuntary insolvency proceeding filed or commenced against the
Purchaser by a Person other than the Seller, or (b) from commencing against
the
Purchaser or the Mortgaged Loans any legal action which is not a bankruptcy,
reorganization, arrangement, insolvency or a liquidation proceeding. In
addition, no recourse shall be had for any amounts payable or any other
obligations arising under this Agreement and any other agreement entered into
in
connection with a Reconstitution against any officer, member, director,
employee, partner or security holder of the Seller or the Purchaser or any
of
their respective successors or assigns. The provisions of this Section 11.24
shall survive the termination of this Agreement.
63
ARTICLE
XII
COMPLIANCE
WITH REGULATION AB
|
Section
12.01
|
Intent
of the Parties; Reasonableness.
|
The
Purchaser and the Seller acknowledge and agree that the purpose of Article
XII
of this Agreement is to facilitate compliance by the Purchaser, any Master
Servicer 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, any Master Servicer
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, in each case, 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) and the Xxxxxxxx-Xxxxx
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 reasonable requests made by the Purchaser, any Master Servicer
or
any Depositor in good faith for delivery of information under these provisions
on the basis of established and evolving interpretations of Regulation
AB. In connection with any Securitization Transaction, the Seller
shall cooperate fully with the Purchaser and any Master Servicer to deliver
to
the Purchaser (including any of its assignees or designees), any Master Servicer
and any Depositor, any and all statements, reports, certifications, records
and
any other information necessary in the good faith determination of the
Purchaser, any Master Servicer or any Depositor to permit the Purchaser, such
Master Servicer or such Depositor to comply with the provisions of Regulation
AB, together with such disclosures relating to the Seller, any Subservicer,
any
Third-Party Originator and the Mortgage Loans, or the servicing of the Mortgage
Loans, reasonably believed by the Purchaser or any Depositor to be necessary
in
order to effect such compliance.
64
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.
For
the
purposes of this Article XII, any notice or request that must be “in writing” or
“written” may be made by electronic mail.
|
Section
12.02
|
Additional
Representations and Warranties of the
Seller.
|
(a) The
Seller shall be deemed to represent to the Purchaser, to any Master Servicer
and
to any Depositor, as of the date on which information is first provided to
the
Purchaser, any Master Servicer or any Depositor under Section 12.03 that, except
as disclosed in writing to the Purchaser, such Master Servicer or such Depositor
prior to such date: (i) the Seller is not aware and has not received
notice that any default, early amortization or other performance triggering
event has occurred as to any other securitization due to any act or failure
to
act of the Seller; (ii) the Seller has not been terminated as servicer in a
residential mortgage loan securitization, either due to a servicing default
or
to application of a servicing performance test or trigger; (iii) no material
noncompliance with the applicable Servicing Criteria with respect to other
securitizations of residential mortgage loans involving the Seller as servicer
has been disclosed or reported by the Seller; (iv) no material changes to the
Seller’s policies or procedures with respect to the servicing function it will
perform under this Agreement and any Reconstitution Agreement for mortgage
loans
of a type similar to the Mortgage Loans have occurred during the three-year
period immediately preceding the related Securitization Transaction; (v) there
are no aspects of the Seller’s financial condition that are reasonably expected
to 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 in writing to the
Seller by the related Depositor of a type described in Item 1119 of Regulation
AB.
(b) If
so requested by the Purchaser, any Master Servicer or any Depositor on any
date
following the date on which information is first provided to the Purchaser,
any
Master Servicer or any Depositor under Section 12.03, the Seller shall, within
five Business Days following such request, confirm in writing the accuracy
of
the representations and warranties set forth in paragraph (a) of this Section
or, if any such representation and warranty is not accurate as of the date
of
such request, provide reasonably adequate disclosure of the pertinent facts,
in
writing, to the requesting party.
65
|
Section
12.03
|
Information
to Be Provided by the Seller.
|
In
connection with any Securitization Transaction the Seller shall (i) within
five
Business Days following request by the Purchaser or any Depositor, provide
to
the Purchaser and such Depositor (or, as applicable, cause each Third-Party
Originator and each Subservicer to provide), in writing and in form and
substance reasonably satisfactory to the Purchaser and such Depositor, the
information and materials specified in paragraphs (a), (b), (c) and (g) of
this
Section, and (ii) as promptly as practicable following notice to or discovery
by
the Seller, provide to the Purchaser and any Depositor (in writing and in
form
and substance reasonably satisfactory to the Purchaser and such Depositor)
the
information specified in paragraph (d) of this Section.
(a) If
so requested by the Purchaser or any Depositor, the Seller shall provide such
information regarding (i) the Seller, as originator of the Mortgage Loans
(including as an acquirer of Mortgage Loans from a Qualified Correspondent),
or
(ii) each Third-Party Originator, and (iii) as applicable, each Subservicer,
as
is reasonably requested for the purpose of compliance with Items 1103(a)(1),
1105, 1110, 1117 and 1119 of Regulation AB. Such information may
include, if applicable:
(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;
(4) any
servicer;
(5) any
trustee;
(6) any
originator;
66
(7) any
significant obligor;
(8) any
enhancement or support provider; and
(9) any
other material transaction party.
(b) If
so requested by the Purchaser or any Depositor, the Seller shall provide (or,
as
applicable, cause each Third-Party Originator to provide) Static Pool
Information with respect to the mortgage loans (of a similar type as the
Mortgage Loans, as reasonably identified by the Purchaser as provided below)
originated by (i) the Seller, if the Seller is an originator of Mortgage Loans
(including as an acquirer of Mortgage Loans from a Qualified Correspondent),
and/or (ii) each Third-Party Originator. Such Static Pool Information
shall be prepared by the Seller (or Third-Party Originator) on the basis of
its
reasonable, good faith interpretation of the requirements of Item 1105(a)(1)-(3)
of Regulation AB, which good faith interpretations shall not be inconsistent
with what is customarily determined by originators of Mortgage Loans to be
required pursuant to Item 1105(a)(1)-(3) of Regulation AB. To the
extent that there is reasonably available to the Seller (or Third-Party
Originator) Static Pool Information with respect to more than one mortgage
loan
type, the Purchaser or any Depositor shall be entitled to specify whether some
or all of such information shall be provided pursuant to this
paragraph. The content of such Static Pool Information may be in the
form customarily provided by the Seller, and need not be customized for the
Purchaser or any Depositor. Such Static Pool Information for each
vintage origination year or prior securitized pool, as applicable, shall be
presented in increments no less frequently than quarterly over the life of
the
mortgage loans included in the vintage origination year or prior securitized
pool. The most recent periodic increment must be as of a date no
later than 135 days prior to the date of the prospectus or other offering
document in which the Static Pool Information is to be included or incorporated
by reference. The Static Pool Information shall be provided in an
electronic format that provides a permanent record of the information provided,
such as a portable document format (pdf) file, or other such electronic format
reasonably required by the Purchaser or the Depositor, as
applicable.
Promptly
following notice or discovery of a material error in Static Pool Information
provided pursuant to the immediately preceding paragraph (including an omission
to include therein information required to be provided pursuant to such
paragraph), the Seller shall provide corrected Static Pool Information to the
Purchaser or any Depositor, as applicable, in the same format in which Static
Pool Information was previously provided to such party by the
Seller.
If
so
requested by the Purchaser or any Depositor, the Seller shall provide (or,
as
applicable, cause each Third-Party Originator to provide), at the expense of
the
requesting party (to the extent of any additional incremental expense associated
with delivery pursuant to this Agreement), such statements and 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 statements and letters shall be addressed to
and be for the benefit of such parties as the Purchaser or such Depositor shall
designate, which may include, by way of example, any Sponsor, any Depositor
and
any broker dealer acting as underwriter, placement agent or initial purchaser
with respect to a Securitization Transaction. Any such statement or
letter may take the form of a standard, generally applicable document
accompanied by a reliance letter authorizing reliance by the addressees
designated by the Purchaser or such Depositor.
67
(c) If
so requested by the Purchaser or any Depositor, the Seller shall provide such
information regarding the Seller, as servicer of the Mortgage Loans, and each
Subservicer (each of the Seller and each Subservicer, for purposes of this
paragraph, a “Servicer”), as is reasonably requested for the purpose of
compliance with Items 1108, 1117 and 1119 of Regulation AB. Such
information shall include, if applicable:
(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;
68
(D) information
regarding the Servicer’s financial condition, to the extent that there is a
material risk that an adverse financial event or circumstance involving the
Servicer could have a material adverse effect on the performance by the Seller
of its servicing obligations under this Agreement or any Reconstitution
Agreement;
(E) information
regarding advances made by the Servicer on the Mortgage Loans and the Servicer’s
overall servicing portfolio of residential mortgage loans for the three-year
period immediately preceding the related Securitization Transaction, which
may
be limited to a statement by an authorized officer of the Servicer to the effect
that the Servicer has made all advances required to be made on residential
mortgage loans serviced by it during such period, or, if such statement would
not be accurate, information regarding the percentage and type of advances
not
made as required, and the reasons for such failure to advance;
(F) a
description of the Servicer’s processes and procedures designed to address any
special or unique factors involved in servicing loans of a similar type as
the
Mortgage Loans;
(G) a
description of the Servicer’s processes for handling delinquencies, losses,
bankruptcies and recoveries, such as through liquidation of mortgaged
properties, sale of defaulted mortgage loans or workouts;
(H) information
as to how the Servicer defines or determines delinquencies and charge-offs,
including the effect of any grace period, re-aging, restructuring, partial
payments considered current or other practices with respect to delinquency
and
loss experience;
(I) a
description of any material legal or governmental proceedings pending (or known
to be contemplated) against the Servicer; and
(J) a
description of any affiliation or relationship between the Servicer and any
of
the following parties to a Securitization Transaction, as such parties are
identified to the Servicer by the Purchaser or any Depositor in writing in
advance of such Securitization Transaction:
(1) the
sponsor;
(2) the
depositor;
(3) the
issuing entity;
(4) any
servicer;
(5) any
trustee;
(6) any
originator;
(7) any
significant obligor;
(8) any
enhancement or support provider; and
(9) any
other material transaction party.
69
(d) 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) (i) provide prompt notice
to the Purchaser, any Master Servicer and any Depositor in writing of (A) any
material litigation or governmental proceedings involving the Seller, any
Subservicer or any Third-Party Originator, (B) any affiliations or relationships
that develop following the closing date of a Securitization Transaction between
the Seller, any Subservicer or any Third-Party Originator and any of the parties
specified in clause (D) of paragraph (a) of this Section (and any other parties
identified in writing by the requesting party) with respect to such
Securitization Transaction, (C) any Event of Default under the terms of this
Agreement or any Reconstitution Agreement, (D) any merger, consolidation or
sale
of substantially all of the assets of the Seller, and (E) the Seller’s entry
into an agreement with a Subservicer or Subcontractor to perform or assist
in
the performance of any of the Seller’s obligations under this Agreement or any
Reconstitution Agreement and (ii) provide to the Purchaser and any Depositor
a
description of such proceedings, affiliations or relationships.
(e) As
a condition to the succession to the Seller or any Subservicer as servicer
or
subservicer under this Agreement or any Reconstitution Agreement by any Person
(i) into which the Seller or such Subservicer may be merged or consolidated,
or
(ii) which may be appointed as a successor to the Seller or any Subservicer,
the
Seller shall provide to the Purchaser, any Master Servicer and any Depositor,
at
least 15 calendar days prior to the effective date of such succession or
appointment, (x) written notice to the Purchaser and any Depositor of such
succession or appointment and (y) in writing and in form and substance
reasonably satisfactory to the Purchaser and such Depositor, all information
reasonably requested by the Purchaser or any Depositor in order to comply with
its reporting obligation under Item 6.02 of Form 8-K with respect to any class
of asset-backed securities.
(f) In
addition to such information as the Seller, as servicer, is obligated to provide
pursuant to other provisions of this Agreement, not later than ten days prior
to
the deadline for the filing of any distribution report on Form 10-D in respect
of any Securitization Transaction that includes any of the Mortgage Loans
serviced by the Seller or any Subservicer, the Seller or such Subservicer,
as
applicable, shall provide to the party responsible for filing such report
(including, if applicable, the Master Servicer) notice of the occurrence of
any
of the following events along with all information, data, and materials related
thereto as may be required to be included in the related distribution report
on
Form 10-D (as specified in the provisions of Regulation AB referenced
below):
(i) any
material modifications, extensions or waivers of pool asset terms, fees,
penalties or payments during the distribution period or that have cumulatively
become material over time (Item 1121(a)(11) of Regulation AB);
(ii) material
breaches of pool asset representations or warranties or transaction covenants
(Item 1121(a)(12) of Regulation AB); and
(iii) information
regarding new asset-backed securities issuances backed by the same pool assets,
any pool asset changes (such as, additions, substitutions or repurchases),
and
any material changes in origination, underwriting or other criteria for
acquisition or selection of pool assets (Item 1121(a)(14) of Regulation
AB).
70
(g) The
Seller shall provide to the Purchaser, any Master Servicer and any Depositor,
such additional information as such party may reasonably request, including
evidence of the authorization of the person signing any certification or
statement, copies or other evidence of Fidelity Bond Insurance and any Errors
and Omissions Insurance Policy, financial information and reports, and such
other information related to the Seller or any Subservicer or the Seller’s or
such Subservicer’s performance hereunder.
|
Section
12.04
|
Servicer
Compliance Statement.
|
On
or
before March 5 of each calendar year, commencing in 2008, the Seller shall
deliver to the Purchaser, any Master Servicer and any Depositor a statement
of
compliance addressed to the Purchaser, such Master Servicer and such Depositor
and signed by an authorized officer of the Seller, to the effect that (i) a
review of the Seller’s activities during the immediately preceding calendar year
(or applicable portion thereof) and of its performance under this Agreement
and
any applicable Reconstitution Agreement during such period has been made under
such officer’s supervision, and (ii) to the best of such officer’s 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.
|
Section
12.05
|
Report
on Assessment of Compliance and
Attestation.
|
(a) On
or before March 5 of each calendar year, commencing in 2008, the Seller
shall:
(i) deliver
to the Purchaser, any Master Servicer and any Depositor a report (in form and
substance reasonably satisfactory to the Purchaser, such Master Servicer and
such Depositor) regarding the Seller’s assessment of compliance with the
Servicing Criteria during the immediately preceding calendar year, as required
under Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122 of Regulation
AB. Such report shall be addressed to the Purchaser, such Master
Servicer and such Depositor and signed by an authorized officer of the Seller,
and shall address each of the “Applicable Servicing Criteria” specified on
Exhibit K hereto;
(ii) deliver
to the Purchaser, any Master Servicer and any Depositor a report of a registered
public accounting firm reasonably acceptable to the Purchaser, such Master
Servicer and such Depositor that attests to, and reports on, the assessment
of
compliance made by the Seller and delivered pursuant to the preceding
paragraph. Such attestation shall be in accordance with Rules
1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act and the
Exchange Act;
(iii) cause
each Subservicer, and each Subcontractor determined by the Seller pursuant
to
Section 12.06(b) to be “participating in the servicing function” within the
meaning of Item 1122 of Regulation AB, to deliver to the Purchaser, any Master
Servicer and any Depositor an assessment of compliance and accountants’
attestation as and when provided in paragraphs (a) and (b) of this Section
and,
to the extent required of such Subservicer or such Subcontractor under Item
1123
of Regulation AB, an annual compliance certification as and when required
under
Section 12. 04; and
71
(iv) if
requested by the Purchaser, any Master Servicer or any Depositor not later
than
February 1 of the calendar year in which such certification is to be delivered,
deliver, and cause each Subservicer and Subcontractor described in clause (iii)
above to deliver, to the Purchaser, any Depositor, any Master
Servicer and any other Person that will be responsible for signing the
certification (a “Sarbanes Certification”) required by Rules 13a-14(d) and
15d-14(d) under the Exchange Act (pursuant to Section 302 of the Xxxxxxxx-Xxxxx
Act of 2002) on behalf of an asset-backed issuer with respect to a
Securitization Transaction a certification, signed by the appropriate officer
of
the Seller, in the form attached hereto as Exhibit J.
None
of
the Purchaser, any Master Servicer nor any Depositor will request delivery
of a
certification under clause (a)(iv) above unless a Depositor or Master Servicer
is required under the Exchange Act to file an annual report on Form 10-K or
any
amendment thereto with respect to an issuing entity whose asset pool includes
Mortgage Loans.
The
Seller acknowledges that the parties identified in clause (a)(iv) above may
rely
on the certification provided by the Seller pursuant to such clause in signing
a
Sarbanes Certification and filing such with the Commission.
(b) Each
assessment of compliance provided by a Subservicer pursuant to Section
12.05(a)(i) shall address each of the Servicing Criteria specified on a
certification substantially in the form of Exhibit K hereto delivered to the
Purchaser concurrently with the execution of this Agreement or, in the case
of a
Subservicer subsequently appointed as such, on or prior to the date of such
appointment. An assessment of compliance provided by a Subcontractor
pursuant to Section 12.05(a)(iii) need not address any elements of the Servicing
Criteria other than those specified by the Seller pursuant to Section
12.06.
|
Section
12.06
|
Use
of Subservicers and
Subcontractors.
|
The
Seller shall not hire or otherwise utilize the services of any Subservicer
to
fulfill any of the obligations of the Seller as servicer under this Agreement
or
any Reconstitution Agreement unless the Seller complies with the provisions
of
paragraph (a) of this Section. The Seller shall not hire or otherwise
utilize the services of any Subcontractor, and shall not authorize or knowingly
permit any Subservicer to hire or otherwise utilize the services of any
Subcontractor, to fulfill any of the obligations of the Seller as servicer
under
this Agreement or any Reconstitution Agreement unless the Seller complies with
the provisions of paragraph (b) of this Section.
(a) It
shall not be necessary for the Seller to seek the consent of the Purchaser,
any
Master Servicer or any Depositor to the utilization of any
Subservicer. The Seller shall cause any Subservicer used by the
Seller (or by any Subservicer) for the benefit of the Purchaser and any
Depositor to comply with the provisions of this Section and with Sections
12.02,
12.03(c), (e), (f) and (g), 12.04, 12.05 and 12.07 of this Agreement to the
same
extent as if such Subservicer were the Seller, and to provide the information
required with respect to such Subservicer under Section 12.03(d) of this
Agreement. The Seller shall be responsible for obtaining from each
Subservicer and delivering to the Purchaser and any Depositor any servicer
compliance statement required to be delivered by such Subservicer under Section
12.04, any assessment of compliance and attestation required to be delivered
by
such Subservicer under Section 12.05 and any certification required to be
delivered to the Person that will be responsible for signing the Sarbanes
Certification under Section 12.05 as and when required to be
delivered.
72
(b) It
shall not be necessary for the Seller to seek the consent of the Purchaser,
any
Master Servicer or any Depositor to the utilization of any
Subcontractor. The Seller shall promptly upon request provide to the
Purchaser, any Master Servicer and any Depositor (or any designee of the
Depositor, such as a master servicer or administrator) a written description
(in
form and substance satisfactory to the Purchaser, such Master Servicer and
such
Depositor) of the role and function of each Subcontractor utilized by the Seller
or any Subservicer, specifying (i) the identity of each such Subcontractor,
(ii)
each discrete function identified in Item 1122(d) of Regulation AB which is
being performed by each such Subcontractor, (iii) which (if any) of such
Subcontractors are “participating in the servicing function” within the meaning
of Item 1122 of Regulation AB as determined by the Seller in full compliance
with Regulation AB, and (iv) which elements of the Servicing Criteria will
be
addressed in assessments of compliance provided by each Subcontractor identified
pursuant to clause (iii) of this paragraph.
As
a
condition to the utilization of any Subcontractor determined to be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, the Seller shall cause any such Subcontractor used by the Seller
(or by any Subservicer) for the benefit of the Purchaser and any Depositor
to
comply with the provisions of Sections 12.05 and 12.07 of this Agreement to
the
same extent as if such Subcontractor were the Seller. The Seller
shall be responsible for obtaining from each Subcontractor and delivering to
the
Purchaser and any Depositor any assessment of compliance and attestation and
the
other certifications required to be delivered by such Subcontractor under
Section 12.05, in each case as and when required to be delivered.
|
Section
12.07
|
Indemnification;
Remedies.
|
(a) The
Seller shall indemnify the Purchaser, each affiliate of the Purchaser, and
each
of the following parties participating in a Securitization
Transaction: each sponsor and issuing entity; each Person (including,
but not limited to, any Master Servicer, if applicable) responsible for the
preparation, execution or filing of any report required to be filed with the
Commission with respect to such Securitization Transaction, or for execution
of
a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange
Act with respect to such Securitization Transaction; each broker dealer acting
as underwriter, placement agent or initial purchaser, each Person who controls
any of such parties or the Depositor (within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act); and the respective present
and former directors, officers, employees, agents and affiliates of each of
the
foregoing and of the Depositor (each, an “Indemnified Party”), and shall hold
each of them harmless from and against any claims, losses, damages, penalties,
fines, forfeitures, legal fees and expenses and related costs, judgments, and
any other costs, fees and expenses that any of them may sustain arising out
of
or based upon:
73
(i) (A)
any untrue statement of a material fact contained or alleged to be contained
in
any information, report, certification, data, accountants’ letter or other
material provided in written or electronic form under this Article XII by or
on
behalf of the Seller, or provided under this Article XII by or on behalf of
any
Subservicer, Subcontractor or Third-Party Originator (collectively, the “Seller
Information”), or (B) 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 (B) 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;
(ii) any
breach by the Seller of its obligations under this Article XII, including
particularly 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 Article
XII, including any failure by the Seller to identify pursuant to Section
12.06(b) any Subcontractor “participating in the servicing function” within the
meaning of Item 1122 of Regulation AB;
(iii) any
breach by the Seller of a representation or warranty set forth in Section
12.02(a) or in a writing furnished pursuant to Section 12.02(b) and made as
of a
date prior to the closing date of the related Securitization Transaction, to
the
extent that such breach is not cured by such closing date, or any breach by
the
Seller of a representation or warranty in a writing furnished pursuant to
Section 12.02(b) to the extent made as of a date subsequent to such closing
date; or
(iv) the
negligence, bad faith or willful misconduct of the Seller in connection with
its
performance under this Article XII.
If
the
indemnification provided for herein is unavailable or insufficient to hold
harmless an Indemnified Party, then the Company agrees that it shall contribute
to the amount paid or payable by such Indemnified Party as a result of any
claims, losses, damages or liabilities incurred by such Indemnified Party in
such proportion as is appropriate to reflect the relative fault of such
Indemnified Party on the one hand and the Company on the other.
In
the
case of any failure of performance described in clause (a)(ii) of this Section,
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.
74
This
indemnification shall survive the termination of this Agreement or the
termination of any party to this Agreement.
(b) (i) Any
failure by the Seller, any Subservicer, any Subcontractor or any Third-Party
Originator to deliver any information, report, certification, accountants’
letter or other material when and as required under this Article XII, or any
breach by the Seller of a representation or warranty set forth in Section
12.02(a) or in a writing furnished pursuant to Section 12.02(b) and made as
of a
date prior to the closing date of the related Securitization Transaction, to
the
extent that such breach is not cured by such closing date, or any breach by
the
Seller of a representation or warranty in a writing furnished pursuant to
Section 12.02(b) to the extent made as of a date subsequent to such closing
date, shall, except as provided in clause (ii) of this paragraph, immediately
and automatically, without notice or grace period, constitute an Event of
Default with respect to the Seller under this Agreement and any applicable
Reconstitution Agreement, and shall entitle the Purchaser, any Master Servicer
or any Depositor, as applicable, in its sole discretion to terminate the rights
and obligations of the Seller as servicer under this Agreement and/or any
applicable Reconstitution Agreement without payment (other than for payment
of
accrued fees and reimbursable expenses owed to the Seller thereunder at the
time
of such termination)(notwithstanding anything in this Agreement or any
applicable Reconstitution Agreement to the contrary) of any compensation to
the
Seller and if the Servicer is servicing any of the Mortgage Loans in a
Securitization Transaction, appoint a successor servicer reasonably acceptable
to any Master Servicer of such Securitization Transaction; provided that to
the
extent that any provision of this Agreement and/or any applicable Reconstitution
Agreement expressly provides for the survival of certain rights or obligations
following termination of the Seller as servicer, such provision shall be given
effect.
(ii) Any
failure by the Seller, any Subservicer or any Subcontractor to deliver any
information, report, certification or accountants’ letter when and as required
under Section 12.04 or 12.05, including (except as provided below) any failure
by the Seller to identify pursuant to Section 12.06(b) any Subcontractor
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, which continues unremedied for ten calendar days after the date
on which such information, report, certification or accountants’ letter was
required to be delivered shall constitute an Event of Default with respect
to
the Seller under this Agreement and any applicable Reconstitution Agreement,
and
shall entitle the Purchaser any Master Servicer or any Depositor, as applicable,
in its sole discretion to terminate the rights and obligations of the Seller
as
servicer under this Agreement and/or any applicable Reconstitution Agreement
without payment (other than for payment of accrued fees and reimbursable
expenses owed to the Seller thereunder at the time of such
termination)(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.
None
of
the Purchaser, any Master Servicer nor any Depositor shall be entitled to
terminate the rights and obligations of the Seller pursuant to this subparagraph
(b)(ii) if a failure of the Seller to identify a Subcontractor “participating in
the servicing function” within the meaning of Item 1122 of Regulation AB was
attributable solely to the role or functions of such Subcontractor with respect
to mortgage loans other than the Mortgage Loans.
75
(iii) The
Seller shall promptly reimburse the Purchaser (or any designee of the Purchaser,
such as a master servicer) and any Depositor, as applicable, for all reasonable
expenses incurred by the Purchaser (or such designee) or such Depositor, as
such
are incurred, in connection with the termination of the Seller as servicer
and
the transfer of servicing of the Mortgage Loans to a successor
servicer. The provisions of this paragraph shall not limit whatever
rights the Purchaser or any Depositor may have under other provisions of this
Agreement and/or any applicable Reconstitution Agreement or otherwise, whether
in equity or at law, such as an action for damages, specific performance or
injunctive relief.
|
Section
12.08
|
Third
Party Beneficiary.
|
For
purposes of this Article XII and any related provisions thereto, each Master
Servicer shall be considered a third-party beneficiary of this Agreement,
entitled to all the rights and benefits hereof as if it were a direct party
to
this Agreement.
[SIGNATURES
COMMENCE ON THE FOLLOWING PAGE]
76
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.
|
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC., Purchaser
By:
/s/ Xxxxx
Xxxx
Name:
Xxxxx
Xxxx
Title:
Associate
Director
SUNTRUST
MORTGAGE, INC., Seller
By:
/s/ Xxxxxx X.
Xxxxxxx
Name:
Xxxxxx X.
Xxxxxxx
Title:
Senior Vice
President
|
77
EXHIBIT
A: [RESERVED]
A-1
EXHIBIT
B: CONTENTS OF MORTGAGE FILE
With
respect to each Mortgage Loan, the Mortgage File shall include each of the
following items, which shall be available for inspection by the Purchaser,
and
which shall be retained by the Seller in the Servicing File or delivered to
the
Purchaser or its designee pursuant to Sections 2.04 and 2.05 of the Purchase,
Warranties and Servicing Agreement.
1. The
original Mortgage Note endorsed “Pay to the order of _____, without recourse,”
and signed in the name of the Seller via original signature by an authorized
officer, with all intervening endorsements showing a complete chain of title
from the originator to the Seller, and all riders thereto. If the
Mortgage Loan was acquired by the Seller in a merger, the endorsement must
be by
“[Seller], successor by merger to the [name of predecessor]”. If the
Mortgage Loan was acquired or originated by the Seller while doing business
under another name, the endorsement must be by “[Seller] formerly known as
[previous name]”.
2. The
original Mortgage (including all riders thereto) with evidence of recording
thereon, or a copy thereof certified by the public recording office in which
such mortgage has been recorded or, if the original Mortgage has not been
returned from the applicable public recording office, a true certified copy,
certified by the Seller, of the original Mortgage together with a certificate
of
the Seller certifying that the original Mortgage has been delivered for
recording in the appropriate public recording office of the jurisdiction in
which the Mortgaged Property is located; provided, however, that the Seller
shall cause such original Mortgage to be delivered to the Purchaser or its
designee promptly upon return from the appropriate public recording office
and
in no event later than 180 days following the related Closing Date pursuant
to
Section 6.03 of the Agreement.
3. The
original or certified true copy or if in electronic form on the related Mortgage
Loan Schedule the certificate number of the related policy, certified by the
Seller, of the Primary Mortgage Insurance Policy, if required.
4. The
original Assignment prepared in blank, or in accordance with Purchaser’s
instructions, which assignment shall, but for any blanks requested by Purchaser,
be in form and substance acceptable for recording. If the Mortgage
Loan was acquired or originated by the Seller while doing business under another
name, the Assignment must be by “[Seller] formerly known as [previous
name]”.
5. The
original policy of title insurance, including riders and endorsements thereto,
or if the policy has not yet been issued, a written commitment or interim binder
or preliminary report of title issued by the title insurance or escrow company
and, in any event, an original mortgagee title insurance policy shall be
delivered to the Purchaser or its designee promptly upon issuance thereof and
not later than 180 days following the related Closing Date pursuant to Section
2.07 of the Agreement.
6. Originals
of all recorded intervening Assignments, or copies thereof, certified by
the
public recording office in which such Assignments have been recorded showing
a
complete chain of title from the originator to the Seller, with evidence
of
recording thereon, or a copy thereof certified by the public recording office
in
which such Assignment has been recorded or, if the original Assignment has
not
been returned from the applicable public recording office, a true certified
copy, certified by the Seller of the original Assignment together with a
certificate of the Seller certifying that the original Assignment has been
delivered for recording in the appropriate public recording office of the
jurisdiction in which the Mortgaged Property is located.
B-1
7. Originals,
or copies thereof certified by the public recording office in which such
documents have been recorded, of each assumption, extension, modification,
written assurance or substitution agreements, if applicable, or if the original
of such document has not been returned from the applicable public recording
office, a true certified copy, certified by the Seller, of such original
document together with certificate of Seller certifying the original of such
document has been delivered for recording in the appropriate recording office
of
the jurisdiction in which the Mortgage Property is located.
8. If
the Mortgage Note or Mortgage or any other material document or instrument
relating to the Mortgage Loan has been signed by a person on behalf of the
Mortgagor, the original power of attorney or other instrument that authorized
and empowered such person to sign bearing evidence that such instrument has
been
recorded, if so required in the appropriate jurisdiction where the Mortgaged
Property is located (or, in lieu thereof, a duplicate or conformed copy of
such
instrument, together with a certificate of receipt from the recording office,
certifying that such copy represents a true and complete copy of the original
and that such original has been or is currently submitted to be recorded in
the
appropriate governmental recording office of the jurisdiction where the
Mortgaged Property is located), or if the original power of attorney or other
such instrument has been delivered for recording in the appropriate public
recording office of the jurisdiction in which the Mortgaged Property is located;
provided, however, that the Seller shall cause such original Mortgage to be
delivered to the Purchaser or its designee promptly upon return from the
appropriate public recording office and in no event later than 180 days
following the related Closing Date pursuant to Section 2.07 of the
Agreement.
9. Mortgage
Loan closing statement (Form HUD-1) and any other truth-in-lending or real
estate settlement procedure forms required by law.
10. Residential
loan application.
11. Uniform
underwriter and transmittal summary (FNMA Form 1008) or reasonable
equivalent.
12. Credit
report on the mortgagor.
13. Business
credit report, if applicable.
14. Residential
appraisal report and attachments thereto.
15. The
original of any guarantee executed in connection with the Mortgage
Note.
16. Verification
of employment and income except for Mortgage Loans originated under a Limited
Documentation Program, all in accordance with Seller’s underwriting
guidelines.
B-2
17. Verification
of acceptable evidence of source and amount of down payment, in accordance
with
Seller’s underwriting guidelines.
18. Photograph
of the Mortgaged Property (may be part of appraisal).
19. Survey
of the Mortgaged Property, if any.
20. Sales
contract, if applicable.
21. If
available, termite report, structural engineer’s report, water potability and
septic certification.
22. Any
original security agreement, chattel mortgage or equivalent executed in
connection with the Mortgage.
23. With
respect to each adjustable rate Mortgage Loan, 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.
B-3
EXHIBIT
C: CUSTODIAL ACCOUNT/ESCROW ACCOUNT LETTER
AGREEMENTS
To:
(the
“Depository”)
As
“Seller” under the Purchase, Warranties and Servicing Agreement, dated as of
July 1, 2007, Whole Loan Series ________ (the
“Agreement”), we hereby authorize and request you to establish an account, as a
Custodial Account pursuant to Section 4.04 of the Agreement, to be designated
as
“____, in trust for the Purchaser, Owner of Whole Loan Series
_____.” Such account shall be a special deposit, which shall be
segregated and held by you maintaining such account in a fiduciary capacity,
separate and apart from your own funds and general assets and that the account
shall not be held in any capacity that would create a debtor-creditor
relationship between you and [Seller] or Mortgage Asset Securitization
Transactions, Inc. All deposits in the account shall be subject to
withdrawal therefrom by order signed by the Seller. This letter is
submitted to you in duplicate. Please execute and return one original
to us.
|
By:
Name:
Title:
|
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.
(Name
of
Depository)
|
By:
Name:
Title:
|
C-1
To: ______________________
(the
“Depository”)
As
“Seller” under the Purchase, Warranties and Servicing Agreement, dated as of
July 1, 2007, Whole Loan Series ____ (the “Agreement”), we hereby
authorize and request you to establish an account, as an Escrow Account pursuant
to Section 4.06 of the Agreement, to be designated as “_____, in trust for the
Purchaser, Owner of Whole Loan Series ____and various Mortgagors.” All deposits
in the account shall be subject to withdrawal therefrom by order signed by
the
Seller. This letter is submitted to you in
duplicate. Please execute and return one original to us.
|
By:
Name:
Title:
|
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.
(Name
of
Depository)
|
By:
Name:
Title:
|
C-2
EXHIBIT
D: UNDERWRITING GUIDELINES AS OF INITIAL CLOSING
DATE
D-1
EXHIBIT
E: SELLER’S OFFICER’S CERTIFICATE
I,
___________________________ hereby certify that I am the duly elected
____________________ of [SELLER], a ___________________ (the “Seller”), and
further certify, on behalf of the Seller as follows:
1. Attached
hereto as Attachment I are a true and correct copy of the [Certificate of
Incorporation and by-laws] [Certificate of limited partnership and limited
partnership agreement] of the Seller as are in full force and effect on the
date
hereof.
2. No
proceedings looking toward merger, liquidation, dissolution or bankruptcy of
the
Seller are pending or contemplated.
3. Each
person who, as an officer or attorney-in-fact of the Seller, signed or
Electronically executed (a) the Purchase, Warranties and Servicing Agreement
(the “Sale Agreement”), dated as of July 1, 2007, by and between the Seller and
Mortgage Asset Securitization Transactions, Inc. “Purchaser”); (b) the Purchase
Price and Terms Letter, dated as of July 1, 2007, between the Seller and the
Purchaser (the “Purchase Price and Terms Letter”); and (c) any other document
delivered prior hereto or on the date hereof in connection with the sale and
servicing of the Mortgage Loans in accordance with the Sale Agreement and the
Purchase Price and Terms Letter was, at the respective times of such signing
and
delivery, and is as of the date hereof, duly elected or appointed, qualified
and
acting as such officer or attorney-in-fact, and the signatures of such persons
appearing on such documents are their genuine signatures.
4. Attached
hereto as Attachment II is a true and correct copy of the resolutions duly
adopted by the board of directors of the Seller on ____________, 200_ (the
“Resolutions”) with respect to the authorization and approval of the sale and
servicing of the Mortgage Loans; said Resolutions have not been amended,
modified, annulled or revoked and are in full force and effect on the date
hereof.
5. Attached
hereto as Attachment III is a Certificate of Good Standing of the Seller dated
________, 20___. No event has occurred since ____________, 20___
which has affected the good standing of the Seller under the laws of the State
of ____________.
6. All
of the representations and warranties of the Seller contained in Section 3.01
and 3.02 of the Sale Agreement were true and correct in all material respects
as
of the date of the Sale Agreement and are true and correct in all material
respects as of the date hereof.
7. The
Seller has performed all of its duties and has satisfied all the material
conditions on its part to be performed or satisfied prior to the Funding Date
pursuant to the Sale Agreement and the related Purchase Price and Terms
Letter.
All
capitalized terms used herein and not otherwise defined shall have the meaning
assigned to them in the Sale Agreement.
E-1
IN
WITNESS WHEREOF, I have hereunto signed my name and affixed the seal of the
Seller.
Dated: _________________________
[Seal]
|
[SELLER]
(Seller)
By: _______________________________
Name:
_____________________________
Title: Vice
President
|
I,
__________________, Secretary of the Seller, hereby certify that
__________________ is the duly elected, qualified and acting Vice President
of
the Seller and that the signature appearing above is his genuine
signature.
IN
WITNESS WHEREOF, I have hereunto signed my name.
Dated: ___________________
[Seal]
|
[SELLER]
(Seller)
By: _______________________________
Name:
_____________________________
Title: [Assistant]
Secretary
|
E-2
EXHIBIT
F: [FORM OF OPINION OF COUNSEL TO THE SELLER]
_______________________
(Date)
[PURCHASER]
[ADDRESS]
|
Re:
|
Purchase,
Warranties and Servicing Agreement, dated as of July 1,
2007
|
Gentlemen:
I
have
acted as counsel to [SELLER], a _______________ (the “Seller”), in connection
with the sale of certain loans by the Seller to _____________________ (“the
“Purchaser”) pursuant to (I) a Purchase, Warranties and Servicing Agreement,
dated as of July 1, 2007, between the Seller and the Purchaser (the “Sale
Agreement”) and the Purchase Price and Terms Letter, dated July 1, 2007, between
the Seller and the Purchaser (the “Purchase Price and Terms
Letter”). Capitalized terms not otherwise defined herein have the
meanings set forth in the Sale Agreement.
In
connection with rendering this opinion letter, I, or attorneys working under
my
direction have examined, among other things, originals, certified copies or
copies otherwise identified to my satisfaction as being true copies of the
following:
|
|
A.
|
The
Sale Agreement;
|
|
|
B.
|
The
Purchase Price and Terms Letter;
|
|
|
C.
|
The
Seller’s [Certificate of Incorporation and by-laws] [certificate of
limited partnership and limited partnership agreement], as amended
to
date; and
|
|
|
D.
|
Resolutions
adopted by the Board of Directors of the Seller with specific reference
to
actions relating to the transactions covered by this opinion (the
“Board
Resolutions”).
|
For
the
purpose of rendering this opinion, I have made such documentary, factual and
legal examinations as I deemed necessary under the circumstances. As
to factual matters, I have relied upon statements, certificates and other
assurances of public officials and of officers and other representatives of
the
Seller, and upon such other certificates as I deemed appropriate, which factual
matters have not been independently established or verified by me. I
have also assumed, among other things, the genuineness of all signatures, the
legal capacity of all natural persons, the authenticity of all documents
submitted to me as originals, and the conformity to original documents of all
documents submitted to me as copies and the authenticity of the originals of
such copied documents.
F-1
On
the
basis of and subject to the foregoing examination, and in reliance thereon,
and
subject to the assumptions, qualifications, exceptions and limitations expressed
herein, I am of the opinion that:
1. The
Seller has been duly [incorporated] [formed] and is validly existing and in
good
standing under the laws of the State of __________ with corporate power and
authority to own its properties and conduct its business as presently conducted
by it. The Seller has the corporate power and authority to service
the Mortgage Loans, and to execute, deliver, and perform its obligations under
the Sale Agreement and the Purchase Price and Terms Letter (sometimes
collectively, the “Agreements”).
2. The
Sale Agreement and the Purchase Price and Terms Letter have been duly
and validly authorized, executed and delivered by the Seller.
3. The
Sale Agreement and the Purchase Price and Terms Letter constitute valid, legal
and binding obligations of the Seller, enforceable against the Seller in
accordance with their respective terms.
4. No
consent, approval, authorization or order of any state or federal court or
government agency or body is required for the execution, delivery and
performance by the Seller of the Sale Agreement and the Purchase Price and
Terms
Letter, or the consummation of the transactions contemplated by the Sale
Agreement [and the Purchase Price and Terms Letter], except for those consents,
approvals, authorizations or orders which previously have been
obtained.
5. Neither
the servicing of the Mortgage Loans by the Seller as provided in the Sale
Agreement and the Purchase Price and Terms Letter, nor the fulfillment of the
terns of or the consummation of any other transactions contemplated in the
Sale
Agreement and the Purchase Price and Terms Letter will result in a
breach of any term or provision of the [certificate of incorporation or by-laws]
[certificate of limited partnership or limited partnership agreement] of the
Seller, or, to the best of my knowledge, will conflict with, result in a breach
or violation of, or constitute a default under, (I) the terms of any indenture
or other agreement or instrument known to me to which the Seller is a party
or
by which it is bound, (ii) any State of or federal statute or regulation
applicable to the Seller, or (iii) any order of any State of or federal court,
regulatory body, administrative agency or governmental body having jurisdiction
over the Seller, except in any such case where the default, breach or violation
would not have a material adverse effect on the Seller or its ability to perform
its obligations under the Sale Agreement.
6. There
is no action, suit, proceeding or investigation pending or, to the best of
my
knowledge, threatened against the Seller which, in my judgment, either in any
one instance or in the aggregate, would draw into question the validity of
the
Sale Agreement or which would be likely to impair materially the ability of
the
Seller to perform under the terms of the Sale Agreement.
7. The
sale of each Note and Mortgage or Pledge Agreement, as applicable, as and
in the
manner contemplated by the Sale Agreement is sufficient fully to transfer
to the
Purchaser all right, title and interest of the Seller thereto as noteholder
and
mortgagee.
F-2
The
opinions above are subject to the following additional assumptions, exceptions,
qualifications and limitations:
A. I
have assumed that all parties to the Agreements other than the Seller have
all
requisite power and authority to execute, deliver and perform their respective
obligations under each of the Agreements, and that the Agreements have been
duly
authorized by all necessary corporate action on the part of such parties, have
been executed and delivered by such parties and constitute the legal, valid
and
binding obligations of such parties.
B. My
opinion expressed in paragraphs 3 and 7 above is subject to the qualifications
that (I) the enforceability of the Agreements may be limited by the effect
of
laws relating to (1) bankruptcy, reorganization, insolvency, moratorium or
other
similar laws now or hereafter in effect relating to creditors’ rights generally,
including, without limitation, the effect of statutory or ether laws regarding
fraudulent conveyances or preferential transfers, and (2) general principles
of
equity upon the specific enforceability of any of the remedies, covenants or
other provisions of the Agreements and upon the availability of injunctive
relief or other equitable remedies and the application of principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) as such principles relate to, limit or affect the enforcement
of creditors’ rights generally and the discretion of the court before which any
proceeding for such enforcement may be brought; and (ii) I express no opinion
herein with respect to the validity, legality, binding effect or enforceability
of provisions for indemnification in the Agreements to the extent such
provisions may be held to be unenforceable as contrary to public
policy.
C. I
have assumed, without independent check or certification, that there are no
agreements or understandings among the Seller, the Purchaser and any other
party
which would expand, modify or otherwise affect the terms of the documents
described herein or the respective rights or obligations of the parties
thereunder.
I
am
admitted to practice in the State of _______________ and I render no opinion
herein as to matters involving the laws of any jurisdiction other than the
State
of ____________ and the Federal laws of the United States of
America.
Very
truly yours,
F-3
EXHIBIT
G: SECURITY RELEASE CERTIFICATION
1. Release
of Security Interest
___________________________,
hereby relinquishes any and all right, title and interest it may have in and
to
the Mortgage Loans described in Exhibit A attached hereto upon purchase thereof
by [PURCHASER] from the Seller named below pursuant to that certain Purchase,
Warranties and Servicing Agreement, dated as of July 1, 2007, as of the date
and
time of receipt by __________________ of $______________ for such Mortgage
Loans
(the “Date and Time of Sale”), and certifies that all notes, mortgages,
assignments and other documents in its possession relating to such Mortgage
Loans have been delivered and released to the Seller named below or its
designees as of the Date and Time of Sale.
Name
and
Address of Financial Institution
______________________________
(Name)
______________________________
(Address)
By:___________________________
G-1
II. Certification
of Release
The
Seller named below hereby certifies to [PURCHASER] that, as of the Date and
Time
of Sale of the above mentioned Mortgage Loans to [PURCHASER], the security
interests in the Mortgage Loans released by the above named corporation comprise
all security interests relating to or affecting any and all such Mortgage
Loans. The Seller warrants that, as of such time, there are and will
be no other security interests affecting any or all of such Mortgage
Loans.
|
_________________________________Seller
By: __________________________________
Name:_________________________________
Title:__________________________________
|
G-2
EXHIBIT
H1: ASSIGNMENT AND CONVEYANCE
On
this
___ day of _________, 200_, [Seller] (“Company”) as the Seller under that
certain Seller’s Purchase, Warranties and Servicing Agreement, dated as of July
1, 2007 (the “Agreement”) does hereby sell, transfer, assign, set over and
convey to Mortgage Asset Securitization Transaction, Inc. as Purchaser under
the
Agreement, without recourse, but subject to the terms of the Agreement, all
rights, title and interest of the Company in and to the Mortgage Loans listed
on
the Mortgage Loan Schedule attached hereto, together with the related Mortgage
Files and all rights and obligations arising under the documents contained
therein. Pursuant to the Agreement, the Company has delivered to the
Purchaser or its designee the documents for each Mortgage Loan to be purchased
as set forth in the Agreement. The contents of each related Servicing
File required to be retained by the Company to service the Mortgage Loans
pursuant to the Agreement and thus not delivered to the Purchaser are and shall
be held in trust by the Company for the benefit of the Purchaser as the owner
thereof. The Company’s possession of any portion of each such
Servicing File is at the will of the Purchaser for the sole purpose of
facilitating servicing of the related Mortgage Loan pursuant to the Agreement,
and such retention and possession by the Company 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 Company shall
immediately vest in the Purchaser and shall be retained and maintained, in
trust, by the Company at the will of the Purchaser in such custodial capacity
only.
The
Company confirms to the Purchaser that the representation and warranties set
forth in Sections 3.01 and 3.02 of the Agreement are true and correct as of
the
date hereof, and that all statements made in the Company’s Officer’s
Certificates and all attachments thereto remain complete, true and correct
in
all respects as of the date hereof, and with respect to this Mortgage Loan
Package, the Company makes the following additional representations and
warranties to the Purchaser, which additional representations and warranties
are
hereby incorporated into Section 3.02 of the Agreement:
|
LOAN
TYPE:
|
[ADJUSTABLE]
RATE
|
||
|
Cut-off
Date:
|
July
1, 2007
|
||
|
Number
of Mortgage Loans:
|
|
||
|
Original
Principal Balance:
|
$
|
||
|
Stated
Principal Balance
|
$
|
|
|
|
Weighted
Average Mortgage Interest Rate:
|
|
%
|
|
|
Weighted
Average Servicing Fee Rate:
|
|
%
|
|
|
Weighted
Average Mortgage Loan Remittance Rate:
|
%
|
||
H1-1
|
Weighted
Average LTV:
|
|
%
|
|
|
Weighted
Average Remaining Months to Maturity:
|
|
|
|
|
[For
Adjustable Rate Mortgage Loans:
|
|||
|
Type:
|
|||
|
Index:
|
|||
|
Weighted
Average Gross Margin:
|
%
|
||
|
Weighted
Average Months to Next Adjustment Date:
|
months]
|
||
Capitalized
terms used herein and not otherwise defined shall have the meanings set forth
in
the Agreement.
[Seller]
(Company)
By: ______________________________________
Name: ____________________________________
Title: _____________________________________
HI-2
EXHIBIT
I: [RESERVED]
I-1
EXHIBIT
J
FORM
OF ANNUAL CERTIFICATION
|
Re:
|
The
Amended and Restated Purchase, Warranties and Servicing Agreement
dated as
of July 1, 2007 (the “Agreement”), among Mortgage Asset Securitization
Transactions, Inc., as Purchaser and Suntrust Mortgage, Inc. (the
“Company), as Seller
|
I,
_____________________________________, the _______________________ of the
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:
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 and identified as the
responsibility of the Company on Exhibit K to the Agreement (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”);
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;
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];
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
The
Compliance Statement required to be delivered by the Company pursuant to
the
Agreement, and the Servicing Assessment and Attestation Report required to
be
provided by the Company and by any Subservicer or Subcontractor pursuant
to the
Agreement, have been provided to the [Depositor] [Master Servicer]. 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.
J-1
|
Date: _________________________
|
|
|
By: _______________________________
|
|
|
Name:
|
|
|
Title:
|
|
J-2
EXHIBIT
K
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by [the Company] [Name of Subservicer]
shall address, at a minimum, the criteria identified as below as “Applicable
Servicing Criteria”:
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
|
General
Servicing Considerations
|
||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
|
|
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
|
K-1
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
X
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
X
|
|
Investor
Remittances and Reporting
|
||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
X
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
K-2
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
|
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
|
K-3
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
X
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
|
X
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period specified
in
the transaction agreements; (B) interest on such funds is paid, or
credited, to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
X
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
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
|
K-4
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
|
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.
|
K-5
