FLOW MORTGAGE LOAN PURCHASE, WARRANTIES AND SERVICING AGREEMENT between LEHMAN BROTHERS BANK, FSB, PURCHASER and AMERICAN HOME MORTGAGE CORP. SELLER RESIDENTIAL FIXED AND ADJUSTABLE RATE MORTGAGE LOANS Dated as of May 1, 2007 Group No. 2007-FLOW
EXECUTION
FLOW
MORTGAGE LOAN PURCHASE, WARRANTIES AND SERVICING AGREEMENT
between
XXXXXX
BROTHERS BANK, FSB,
PURCHASER
and
AMERICAN
HOME MORTGAGE
CORP.
SELLER
RESIDENTIAL
FIXED AND ADJUSTABLE RATE MORTGAGE LOANS
Dated
as
of May 1, 2007
Group
No.
2007-FLOW
TABLE
OF CONTENTS
|
Page
|
||
|
SECTION
1.
|
DEFINITIONS.
|
1
|
|
SECTION
2.
|
CONVEYANCE
FROM SELLER TO PURCHASER.
|
16
|
|
SECTION
3.
|
PURCHASE
PRICE.
|
19
|
|
SECTION
4.
|
SERVICING
OF THE MORTGAGE LOANS.
|
20
|
|
SECTION
5.
|
STATEMENTS
AND PAYMENTS TO THE PURCHASER.
|
41
|
|
SECTION
6.
|
REPRESENTATIONS,
WARRANTIES AND AGREEMENTS OF SELLER.
|
44
|
|
SECTION
7.
|
REPRESENTATIONS
AND WARRANTIES REGARDING INDIVIDUAL MORTGAGE LOANS.
|
47
|
|
SECTION
8.
|
REMEDIES
FOR BREACH OF REPRESENTATIONS AND WARRANTIES; ADDITIONAL REPURCHASE
OBLIGATIONS.
|
62
|
|
SECTION
9.
|
INDEMNIFICATION
|
64
|
|
SECTION
10.
|
CLOSING.
|
66
|
|
SECTION
11.
|
CLOSING
DOCUMENTS.
|
67
|
|
SECTION
12.
|
MERGER
OR CONSOLIDATION OF THE SELLER.
|
68
|
|
SECTION
13.
|
COSTS.
|
68
|
|
SECTION
14.
|
PROTECTION
OF CONFIDENTIAL INFORMATION.
|
69
|
|
SECTION
15.
|
NOTICES.
|
69
|
|
SECTION
16.
|
SEVERABILITY
CLAUSE.
|
69
|
|
SECTION
17.
|
COUNTERPARTS.
|
70
|
|
SECTION
18.
|
PLACE
OF DELIVERY AND GOVERNING LAW.
|
70
|
|
SECTION
19.
|
FURTHER
AGREEMENTS.
|
70
|
|
SECTION
20.
|
INTENTION
OF THE PARTIES.
|
00
|
-x-
|
XXXXXXX
00.
|
SUCCESSORS
AND ASSIGNS; ASSIGNMENT OF PURCHASE AGREEMENT; RESIGNATION.
|
72
|
|
SECTION
22.
|
WAIVERS;
OTHER AGREEMENTS.
|
73
|
|
SECTION
23.
|
EXHIBITS.
|
73
|
|
SECTION
24.
|
GENERAL
INTERPRETIVE PRINCIPLES.
|
73
|
|
SECTION
25.
|
REPRODUCTION
OF DOCUMENTS.
|
73
|
|
SECTION
26.
|
RECORDATION
OF ASSIGNMENTS OF MORTGAGE.
|
74
|
|
SECTION
27.
|
NO
PERSONAL SOLICITATION.
|
74
|
|
SECTION
28.
|
DEFAULT;
TERMINATION.
|
74
|
|
SECTION
29.
|
RECONSTITUTION.
|
79
|
|
SECTION
30.
|
MISCELLANEOUS
PROVISIONS.
|
88
|
SCHEDULES
AND EXHIBITS
|
EXHIBIT
A-1
|
FORM
OF ACKNOWLEDGMENT AND CONVEYANCE
AGREEMENT
|
|
EXHIBIT
A-2
|
MORTGAGE
LOAN SCHEDULE DATA FIELDS
|
|
EXHIBIT
B
|
CONTENTS
OF EACH MORTGAGE FILE
|
|
EXHIBIT
C
|
FORM OF SELLER’S OFFICER’S CERTIFICATE |
| EXHIBIT D | FORM OF OPINION OF COUNSEL TO THE SELLER |
|
EXHIBIT
E
|
RESERVED
|
|
EXHIBIT
F
|
FORM
OF SECURITY RELEASE CERTIFICATION
|
|
EXHIBIT
G
|
FORM
OF CUSTODIAL ACCOUNT LETTER
AGREEMENT
|
|
EXHIBIT
H
|
FORM
OF ESCROW ACCOUNT LETTER AGREEMENT
|
|
EXHIBIT
I-1
|
FORM
OF MONTHLY REMITTANCE ADVICE
|
|
EXHIBIT
I-2
|
STANDARD
LAYOUT FOR DEFAULTED LOAN REPORT
|
|
EXHIBIT
J
|
FORM
OF ANNUAL CERTIFICATION
|
|
EXHIBIT
K
|
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF
COMPLIANCE
|
-ii-
FLOW
MORTGAGE LOAN PURCHASE, WARRANTIES
AND
SERVICING AGREEMENT
This
is a
Flow Mortgage Loan Purchase, Warranties and Servicing Agreement (the
“Agreement”),
dated
as of May 1, 2007 by and between Xxxxxx Brothers Bank, FSB, having an office
at
000 Xxxxxxx Xxxxxx, 00xx
Xxxxx,
Xxx Xxxx, XX 00000 (the “Purchaser”)
and
American Home Mortgage Corp. having an office at 000 Xxxxxxxxxxx Xxxx, Xxxxxxxx,
XX 00000 (the “Seller”).
WHEREAS,
the Seller has agreed to sell from time to time to the Purchaser, and the
Purchaser has agreed to purchase from time to time from the Seller, certain
fixed and adjustable rate residential first and second lien mortgage loans (the
“Mortgage
Loans”)
on a
servicing-retained basis as described herein, and which shall be delivered
as
whole loans on the related Closing Date, as defined below;
WHEREAS,
each Mortgage Loan will be secured by a mortgage, deed of trust or other
security instrument creating a first or second lien on a residential dwelling
located in the jurisdiction indicated on the related Mortgage Loan Schedule;
and
WHEREAS,
the Purchaser and the Seller wish to prescribe the manner of the conveyance,
servicing and control of the Mortgage Loans.
NOW,
THEREFORE, in consideration of the premises and mutual agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Purchaser and the Seller
agree
as follows:
| SECTION 1. |
DEFINITIONS.
|
The
following terms are defined as follows (except as otherwise agreed in writing
by
the parties):
Accepted
Servicing Practices:
With
respect to any Mortgage Loan, those mortgage servicing practices (i) of prudent
mortgage lending institutions which service mortgage loans of the same type
as
such Mortgage Loan in the jurisdiction where the related Mortgaged Property
is
located and (ii) in accordance with all applicable state, federal and local
laws.
Acknowledgment
and Conveyance Agreement:
The
agreement, substantially in the form of Exhibit A-1 hereto, to be executed
by
the Seller and the Purchaser on each Closing Date.
Affiliate:
With
respect to any specified Person, any other Person controlling or controlled
by
or under common control with such specified Person. For the purposes of this
definition, “control” when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract
or
otherwise and the terms “controlling” and “controlled” have meanings correlative
to the foregoing.
Agency
Transfer:
The
sale or transfer by Purchaser of some or all of the Mortgage Loans to Xxxxxx
Xxx
under its Cash Purchase Program or its MBS Swap Program (Special Servicing
Option) or to Xxxxxxx Mac under its Xxxxxxx Xxx Xxxx Program or Gold PC Program,
retaining the Seller as “servicer” thereunder.
Agreement:
This
Flow Mortgage Loan Purchase, Warranties and Servicing Agreement and all
amendments hereof and supplements hereto.
AHMS:
American Home Mortgage Servicing, Inc., a Maryland corporation, or any other
servicer appointed by the Seller to service Mortgage Loans under the control
of
the Seller pursuant to this Agreement, in each case solely to the extent that
such party is servicing on behalf of the Seller under this
Agreement.
ALTA:
The
American Land Title Association or any successor thereto.
Ancillary
Income:
All
income derived from the Mortgage Loans, excluding Servicing Fees and Prepayment
Charges attributable to the Mortgage Loans, including but not limited to, late
charges, fees received with respect to checks or bank drafts returned by the
related bank for non-sufficient funds, assumption fees, optional insurance
administrative fees and all other incidental fees and charges.
Anti-Money
Laundering Laws:
As
defined in Section 7(fff).
Appraised
Value:
The
value set forth in an appraisal made in connection with the origination of
the
related Mortgage Loan as the value of the Mortgaged Property.
Approved
Flood Policy Insurer:
Any of
the following insurers: Flood Data Services, Inc., Flood Zone, Inc., GEOTrac,
First American or Transamerica Flood Hazard Certification.
Approved
Tax Service Contract Provider:
Any of
the following providers: First American, TransAmerica, Lereta, ZC Sterling
or
Fidelity.
ARM
Mortgage Loan:
A
Mortgage Loan pursuant to which the interest rate shall be adjusted from time
to
time in accordance with the related Mortgage Note.
Assignment
Fees:
As
defined in Section 13.
Assignment
of Mortgage:
An
assignment of the Mortgage, notice of transfer or equivalent instrument in
recordable form, sufficient under the laws of the jurisdiction wherein the
related Mortgaged Property is located to reflect the sale of the Mortgage to
the
Purchaser, or in the case of a MERS Mortgage Loan, a confirmed electronic
transmission to MERS, identifying a transfer of ownership of the related
Mortgage to the Purchaser or its designee.
-2-
Assignment
of Proprietary Lease:
With
respect to a Cooperative Loan, an assignment of the Proprietary Lease sufficient
under the laws of the jurisdiction wherein the related Cooperative Apartment
is
located to effect the assignment of such Proprietary Lease.
Best’s:
As
defined in Section 4(j).
BPO:
A
broker’s price opinion obtained by the Purchaser.
Breach:
As
defined in Section 8(a).
Business
Day:
Any day
other than (i) a Saturday or Sunday, or (ii) a day on which banking and savings
and loan institutions in the State of New York are authorized or obligated
by
law or executive order to be closed.
Certified
Mortgaged Property:
As
defined in Section 7(mmm).
Closing
Date:
Means a
date on which the Seller shall sell and the Purchaser shall purchase Mortgage
Loans under this Agreement as set forth in the related Purchase Price and Terms
Agreement.
Code:
The
Internal Revenue Code of 1986, as it may be amended from time to time or any
successor statute thereto, and applicable U.S. Department of the Treasury
regulations issued pursuant thereto.
Combined
Loan-to-Value Ratio or CLTV:
With
respect to any Second Lien Mortgage Loan, the ratio of (a) the sum of (i) the
outstanding principal balance of the Mortgage Loan at origination and (ii)
the
original principal amount of any related First Lien (as of the Cut-off Date
unless otherwise indicated) and (b) the lesser of (i) the Appraised Value of
the
Mortgaged Property and (ii) if the Mortgage Loan was made to finance the
acquisition of the related Mortgaged Property, the purchase price of the
Mortgaged Property, expressed as a percentage.
Commission:
The
United States Securities and Exchange Commission.
Condemnation
Proceeds:
All
awards or settlements in respect of a Mortgaged Property, whether permanent
or
temporary, partial or entire, by exercise of the power of eminent domain or
condemnation, to the extent not required to be released to a Mortgagor in
accordance with the terms of the related Mortgage Loan Documents.
Cooperative:
The
entity that holds title (fee or an acceptable leasehold estate) to all of the
real property that the Project comprises, including the land, separate dwelling
units and all common areas.
Cooperative
Apartment:
The
specific dwelling unit relating to a Cooperative Loan.
Cooperative
Loan: A
Mortgage Loan that is secured by Cooperative Shares and a Proprietary Lease
granting exclusive rights to occupy the related Cooperative
Apartment.
-3-
Cooperative
Shares:
The
shares of stock issued by a Cooperative, owned by the Mortgagor, and allocated
to a Cooperative Apartment.
Credit
Grade:
As
defined in the Underwriting Guidelines.
Custodial
Account:
The
separate trust account created and maintained pursuant to Section
4(d).
Custodial
Agreement:
The
agreement governing the retention of the originals of each Mortgage Note,
Mortgage, Assignment of Mortgage and other Mortgage Loan Documents.
Custodian:
The
custodian under the Custodial Agreement, or its successor in interest or
assigns, or any successor to the Custodian under the Custodial Agreement, as
therein provided.
Customer
Information:
The
nonpublic personal information (as defined in 15 U.S.C. § 6809(4)) of the
Purchaser's former, current or prospective customers or employees, including
the
Mortgagors (and/or clients or prospective customers of the Purchaser's parent,
affiliated or subsidiary companies) held or received by the Seller in connection
with the performance of its obligations under this Agreement, including, but
not
limited to (i) an individual's name, address, e-mail address, IP address,
telephone number and/or social security number, (ii) the fact that an individual
has a relationship with the Seller or the Purchaser and/or its parent,
affiliated or subsidiary companies or (iii) an individual's account
information.
Cut-off
Date:
With
respect to any Mortgage Loan purchased on a Closing Date, the date as may be
set
forth in the related Purchase Price and Terms Agreement.
Deleted
Mortgage Loan:
A
Mortgage Loan which is repurchased by the Seller in accordance with the terms
of
this Agreement.
Depositor:
The
depositor, as such term is defined in Regulation AB, with respect to any
Securitization Transaction.
Determination
Date:
The
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.
DIF: The
Deposit Insurance Fund, or any successor thereto.
Disqualified
Organization:
An
organization defined as such in Section 860E(e) of the Code.
Distressed
Mortgage Loan:
As of
any Determination Date, any Mortgage Loan that is delinquent in payment for
a
period of ninety (90) days or more, without giving effect to any grace period
permitted by the related Mortgage Loan, or for which the Seller has accepted
a
deed in lieu of foreclosure.
-4-
Due
Date:
The day
of the month on which the Monthly Payment is due on a Mortgage Loan, exclusive
of any days of grace. With respect to the Mortgage Loans for which payment
from
the Mortgagor is due on a day other than the first day of the month, such
Mortgage Loans will be treated as if the Monthly Payment is due on the first
day
of the month following the actual Due Date.
Due
Period:
With
respect to each Remittance Date, the period commencing on the second day of
the
month preceding the month of the Remittance Date and ending on the first day
of
the month of the Remittance Date.
Eligible
Investments:
Any one
or more of the obligations and securities listed below which investment provides
for a date of maturity not later than the third (3rd)
calendar day prior to the Remittance Date in each month:
(i) direct
obligations of, and obligations fully guaranteed by, the United States of
America, or any agency or instrumentality of the United States of America the
obligations of which are backed by the full faith and credit of the United
States of America; and
(ii) federal
funds, demand and time deposits in, certificates of deposits of, or bankers’
acceptances issued by, any depository institution or trust company incorporated
or organized under the laws of the United States of America or any state thereof
and subject to supervision and examination by federal and/or state banking
authorities, so long as at the time of such investment or contractual commitment
providing for such investment the commercial paper or other short-term debt
obligations of such depository institution or trust company (or, in the case
of
a depository institution or trust company which is the principal subsidiary
of a
holding company, the commercial paper or other short-term debt obligations
of
such holding company) are rated “P-1” by Xxxxx’x Investors Service, Inc. and the
long-term debt obligations of such holding company) are rated “P-1” by Xxxxx’x
Investors Service, Inc. and the long-term debt obligations of such depository
institution or trust company (or, in the case of a depository institution or
trust company which is the principal subsidiary of a holding company, the
long-term debt obligations of such holding company) are rated at least “Aa” by
Xxxxx’x Investors Service, Inc.;
provided,
however,
that no
such instrument shall be an Eligible Investment if such instrument evidences
either (i) a right to receive only interest payments with respect to the
obligations underlying such instrument, or (ii) both principal and interest
payments derived from obligations underlying such instrument and the principal
and interest payments with respect to such instrument provide a yield to
maturity of greater than 120% of the yield to maturity at par of such underlying
obligations; provided, further, that upon a Securitization Transaction, the
Eligible Investments permitted thereunder shall be set forth in the related
Reconstitution Agreement.
Notwithstanding
anything to the contrary contained herein, with respect to Mortgage Loans
subject to an Agency Transfer or a Securitization Transaction, in the event
that
the applicable Reconstitution Agreement has a more limiting definition of
“Eligible Investments”, then the definition contained in such Reconstitution
Agreement shall apply to such Mortgage Loans.
-5-
Errors
and Omissions Insurance Policy:
An
errors and omissions insurance policy to be maintained by the Seller pursuant
to
Section 4(l).
Escrow
Account:
The
separate account created and maintained pursuant to Section 4(f).
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 28(a).
Exchange
Act:
The
Securities Exchange Act of 1934, as amended.
FACTA:
As
defined in Section 4(u).
Xxxxxx
Mae:
Xxxxxx
Xxx, or any successor thereto.
Xxxxxx
Mae Guides:
The
Xxxxxx Xxx Selling Guide and the Xxxxxx Mae Servicing Guide and all amendments
or additions thereto.
FDIC:
The
Federal Deposit Insurance Corporation, or any successor thereto.
FEMA:
The
Federal Emergency Management Agency, or any successor thereto.
FEMA
Property:
As
defined in Section 7(mmm).
FICO
Score:
A
statistical credit score obtained by mortgage lenders in connection with the
loan application to help assess a borrower’s creditworthiness.
Fidelity
Bond:
A
fidelity bond to be maintained by the Seller pursuant to Section
4(l).
First
Lien:
With
respect to any Second Lien Mortgage Loan, the mortgage loan relating to the
corresponding Mortgaged Property having a first priority lien.
Xxxxxxx
Mac:
Xxxxxxx
Mac, or any successor thereto.
Xxxxxxx
Mac Guides:
The
Xxxxxxx Mac Selling Guide and the Xxxxxxx Mac Servicing Guide and all amendments
or additions thereto.
-6-
Gross
Margin:
With
respect to each ARM Mortgage Loan, the fixed percentage amount set forth in
the
related Mortgage Note which is added to the Index in accordance with the terms
of the related Mortgage Note to determine, on each Interest Rate Adjustment
Date, the Mortgage Interest Rate for such Mortgage Loan.
Guidelines:
As
defined in Section 4(u).
Index:
On each
Interest Rate Adjustment Date the applicable index with respect to each ARM
Mortgage Loan shall be the index set forth on the Mortgage Loan Schedule with
respect to such ARM Mortgage Loan.
Insurance
Proceeds:
With
respect to each Mortgage Loan, proceeds of insurance policies insuring the
Mortgage Loan or the related Mortgaged Property.
Insured
Amount:
As
defined in Section 4(i).
Interest
Rate Adjustment Date:
The
date on which an adjustment to the Mortgage Interest Rate on a Mortgage Note
becomes effective.
Investor:
With
respect to each MERS Mortgage Loan, the Person named on the MERS System as
the
investor pursuant to the MERS Procedures Manual.
Lifetime
Rate Cap:
The
provision of the Mortgage Note related to each ARM Mortgage Loan which provides
for an absolute maximum Mortgage Interest Rate thereunder. The Mortgage Interest
Rate during the term of each Mortgage Loan shall not at any time exceed the
Mortgage Interest Rate at the time of origination of such Mortgage Loan by
more
than the amount per annum set forth on the Mortgage Loan Schedule.
Liquidation
Proceeds:
Cash
received in connection with the liquidation of a defaulted Mortgage Loan,
whether through the sale or assignment of such Mortgage Loan, trustee’s sale,
foreclosure sale or otherwise, or the sale of the related Mortgaged Property
if
the Mortgaged Property is acquired in satisfaction of the Mortgage
Loan.
Loan-to-Value
Ratio or LTV:
With
respect to any Mortgage Loan, the ratio of the original principal amount of
the
Mortgage Loan at origination to the lesser of (a) the Appraised Value of the
Mortgaged Property and (b) if the Mortgage Loan was made to finance the
acquisition of the related Mortgaged Property, the purchase price of the
Mortgaged Property, expressed as a percentage.
LPMI
Fee:
With
respect to each LPMI Loan, the portion of the Mortgage Interest Rate as set
forth on the related Mortgage Loan Schedule
which,
during such period prior to the required cancellation of the LPMI Policy, shall
be
used
to pay the premium due on the related LPMI Policy. The LPMI Fee shall be payable
solely from the interest portion
of Monthly Payments, Insurance Proceeds, Condemnation Proceeds or Liquidation
Proceeds.
LPMI
Loan:
A
Mortgage Loan covered by an LPMI Policy.
-7-
LPMI
Policy:
A
policy of primary mortgage guaranty insurance issued by a Qualified Insurer
pursuant to which the related premium is to be paid by the Seller from payments
of interest
made by the Mortgagor in an amount as is set forth in the related Mortgage
Loan
Schedule.
Master
Servicer:
Aurora
Loan Services LLC or such other master servicer as the Purchaser may designate
by written instruction to the Seller.
Material
Adverse Change:
As
defined in Section 10(e).
Material
Defect:
As
defined in Section 2(c).
MERS:
Mortgage Electronic Registration Systems, Inc., a Delaware corporation, or
any
successor in interest thereto.
MERS
Mortgage Loan:
A
Mortgage Loans for which (a) the Seller has designated or will designate MERS
as, and has taken or will take such action as is necessary to cause MERS to
be,
the mortgagee of record, as nominee for the Seller, in accordance with the
MERS
Procedures Manual and (b) the Seller has designated or will designate the
Purchaser as the Investor on the MERS System.
MERS
Procedures Manual:
The
MERS Procedures Manual, as it may be amended, supplemented or otherwise modified
from time to time.
MERS
Report:
The
report from the MERS System listing MERS Mortgage Loans and other
information.
MERS
System:
MERS
mortgage electronic registry system, as more particularly described in the
MERS
Procedures Manual.
Monthly
Advance:
With
respect to each Remittance Date and each Mortgage Loan, an amount equal to
the
Monthly Payment (with the interest portion of such Monthly Payment adjusted
to
the Mortgage Loan Remittance Rate) which was due on the Mortgage Loan on the
Due
Date in the related Due Period, and (i) which was delinquent immediately
preceding the Determination Date and (ii) which was not the subject of a
previous Monthly Advance. The
Seller shall have no obligation to make any Monthly Advance that is
or would
constitute a Nonrecoverable Advance.
Monthly
Payment:
The
scheduled monthly payment of principal and interest on a Mortgage
Loan.
Mortgage:
The
mortgage, deed of trust or other instrument securing a Mortgage Note, which
creates a first or second lien on an unsubordinated estate in fee simple in
real
property securing the Mortgage Note or the Pledge Agreement securing the
Mortgage Note for a Cooperative Loan.
-8-
Mortgage
File:
The
items pertaining to a particular Mortgage Loan referred to in Exhibit
B
annexed
hereto, and any additional documents required to be added to the Mortgage File
pursuant to this Agreement.
Mortgage
Interest Rate:
With
respect to each fixed rate Mortgage Loan, the fixed annual rate of interest
borne on a Mortgage Note. With respect to each ARM Mortgage Loan, the annual
rate of interest borne on a Mortgage Note, as adjusted from time to time in
accordance with the provisions of the Mortgage Note, without regard to any
modification of the Mortgage Note.
Mortgage
Interest Rate Cap:
With
respect to each ARM Mortgage Loan, the limit on each Mortgage Interest Rate
adjustment as set forth in the related Mortgage Note.
Mortgage
Loan:
An
individual Mortgage Loan which is the subject of this Agreement, each Mortgage
Loan originally sold and subject to this Agreement being identified on the
Mortgage Loan Schedule annexed as Annex 1 to the related Acknowledgment and
Conveyance Agreement, which Mortgage Loan includes without limitation the
Mortgage File, the Monthly Payments, Liquidation Proceeds, Condemnation
Proceeds, Insurance Proceeds, REO Disposition Proceeds, Principal Prepayments
and all other rights, benefits, proceeds and obligations arising from or in
connection with such Mortgage Loan.
Mortgage
Loan Documents:
The
documents contained in the Mortgage File pertaining to each Mortgage
Loan.
Mortgage
Loan Package:
A group
of Mortgage Loans sold to the Purchaser by the Seller on a Closing Date and
set
forth on the Mortgage Loan Schedule annexed to the related Acknowledgment and
Conveyance Agreement.
Mortgage
Loan Schedule:
A
schedule of Mortgage Loans annexed as Annex 1 to each Acknowledgment and
Conveyance Agreement, each such schedule setting forth the data and information
listed on Exhibit
A-2
with
respect to each Mortgage Loan.
Mortgage
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 any applicable LPMI Fee.
Mortgage
Note:
The
note or other evidence of the indebtedness of a Mortgagor secured by a
Mortgage.
Mortgaged
Property:
The
real property securing repayment of the debt evidenced by a Mortgage Note,
or
with respect to a Cooperative Loan, the Cooperative Apartment.
Mortgagor:
The
obligor on a Mortgage Note.
Negative
Amortization Mortgage Loan:
Each
Mortgage Loan that provides for negative amortization or for the potential
for
negative amortization.
-9-
Nonrecoverable
Advance:
Any
Servicing Advance or Monthly Advance previously made or proposed to be made
in
respect of a Mortgage Loan by the Seller which, in the reasonable judgment
of
the Seller, is not or would not ultimately be recoverable by the Seller from
the
related Mortgagor, related Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds or otherwise with respect to such Mortgage Loan. The
determination by the Seller that all or a portion of a Servicing Advance or
a
Monthly Advance would be a Nonrecoverable Advance shall be evidenced by an
Officer's Certificate delivered to the Purchaser, setting forth such
determination and the procedures and considerations of the Seller forming the
basis of such determination.
Notice
of Sale:
As
defined in Section 4(p).
OFAC:
As
defined in Section 7(fff).
Officer’s
Certificate:
A
certificate signed by the Chairman of the Board, the Vice Chairman of the Board,
the President or a Vice President and by the Treasurer, the Secretary or one
of
the Assistant Treasurers or Assistant Secretaries of the Seller, and delivered
to the Purchaser as required by this Agreement.
Operative
Agreement:
As
defined in Section 10(e).
Opinion
of Counsel:
A
written opinion of counsel, who may be an employee of the Seller, reasonably
acceptable to the Purchaser, provided that any Opinion of Counsel relating
to
(a) qualification of the Mortgage Loans in a REMIC or (b) compliance
with the REMIC Provisions, must be an opinion of counsel who (i) is in fact
independent of the Seller and any Master Servicer of the Mortgage Loans,
(ii) does not have any material direct or indirect financial interest in
the Seller or any Master Servicer of the Mortgage Loans or in an Affiliate
of
any such entity and (iii) is not connected with the Seller or any Master
Servicer of the Mortgage Loans as an officer, employee, director or person
performing similar functions.
Participating
Entity:
As
defined in Section 5(g).
Periodic
Rate Cap:
The
provision of each Mortgage Note related to each ARM Mortgage Loan which provides
for an absolute maximum amount by which the Mortgage Interest Rate therein
may
increase or decrease on an Interest Rate Adjustment Date above or below the
Mortgage Interest Rate previously in effect. The Periodic Rate Cap for each
ARM
Mortgage Loan is the rate set forth on the related Mortgage Loan
Schedule.
Person:
Any
individual, corporation, partnership, joint venture, association, joint-stock
company, trust, unincorporated organization, government or any agency or
political subdivision thereof.
Pledge
Agreement:
With
respect to a Cooperative Loan, the specific agreement creating a first lien
on
and pledge of the Cooperative Shares and the appurtenant Proprietary
Lease.
-10-
Pledge
Instruments:
With
respect to a Cooperative Loan, the Stock Power, the Assignment of the
Proprietary Lease and the Assignment of the Mortgage Note and Pledge
Agreement.
PMI
Policy:
A
policy of primary mortgage guaranty insurance issued by a Qualified Insurer,
as
required by this Agreement with respect to certain Mortgage Loans.
Prepayment
Charge:
With
respect to any Mortgage Loan and Remittance Date, the charges or premiums,
if
any, due in connection with a full or partial prepayment of such Mortgage Loan
during the immediately preceding Principal Prepayment Period in accordance
with
the terms of the related Mortgage Note.
Prepayment
Interest Shortfall Amount:
With
respect to any Mortgage Loan that was subject to a Principal Prepayment in
full
or in part during any Due Period, which Principal Prepayment was applied to
such
Mortgage Loan prior to such Mortgage Loan’s Due Date in such Due Period, the
amount of interest (net of the related Servicing Fee) that would have accrued
on
the amount of such Principal Prepayment during the period commencing on the
date
as of which such Principal Prepayment was applied to such Mortgage Loan and
ending on the day immediately preceding such Due Date, inclusive.
Principal
Prepayment:
Any
payment or other recovery of principal on a Mortgage Loan which is received
in
advance of its scheduled Due Date, including any prepayment 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.
Principal
Prepayment Period:
The
month preceding the month in which the related Remittance Date
occurs.
Project:
With
respect to a Cooperative Loan, all real property owned by the related
Cooperative including the land, separate dwelling units and all common
areas.
Property
Charges:
As
defined in Section 4(h).
Proprietary
Lease:
With
respect to a Cooperative Loan, a lease on a Cooperative Apartment evidencing
the
possessory interest of the Mortgagor in such Cooperative Apartment.
Purchase
Price:
The
price paid on the related Closing Date by the Purchaser to the Seller in
exchange for the Mortgage Loans as calculated in Section 3 of this
Agreement.
Purchase
Price and Terms Agreement:
With
respect to each purchase of a Mortgage Loan Package hereunder, that certain
letter agreement by and between the Seller and the Purchaser setting forth
the
general terms, conditions and portfolio characteristics for each Mortgage Loan
Package to be purchased hereunder as of any Closing Date.
-11-
Purchaser:
Xxxxxx
Brothers Bank, FSB or its successor in interest or assigns or any successor
to
the Purchaser under this Agreement as herein provided; provided, however, that,
for the purpose of compliance with Regulation AB, references to the Purchaser
shall be deemed to include any assignees or designees of the Purchaser, such
as
any Depositor, a master servicer or a trustee.
Qualified
Appraiser:
An
appraiser, duly appointed by the Seller, who had no interest, direct or
indirect, in the Mortgaged Property or in any loan made on the security thereof,
and whose compensation is not affected by the approval or disapproval of the
Mortgage Loan, and such appraiser and the appraisal made by such appraiser
both
satisfy the requirements of Title XI of the Federal Institutions Reform,
Recovery and Enforcement Act of 1989 and the regulations promulgated thereunder,
all as in effect on the date the Mortgage Loan was originated.
Qualified
Correspondent:
Any
Person from which the Seller purchased Mortgage Loans, provided that the
following conditions are satisfied: (i) such Mortgage Loans were originated
pursuant to an agreement between the Seller and such Person that contemplated
that such Person would underwrite mortgage loans from time to time, for sale
to
the Seller, in accordance with underwriting guidelines designated by the Seller
(“Designated Guidelines”) or guidelines that do not vary materially from such
Designated Guidelines; (ii) such Mortgage Loans were in fact underwritten as
described in clause (i) above and were acquired by the Seller within 180 days
after origination; (iii) either (x) the Designated Guidelines were, at the
time
such Mortgage Loans were originated, used by the Seller in origination of
mortgage loans of the same type as the Mortgage Loans for the Seller’s own
account or (y) the Designated Guidelines were, at the time such Mortgage Loans
were underwritten, designated by the Seller on a consistent basis for use by
lenders in originating mortgage loans to be purchased by the Seller; and (iv)
the Seller employed, at the time such Mortgage Loans were acquired by the
Seller, pre-purchase or post-purchase quality assurance procedures (which may
involve, among other things, review of a sample of mortgage loans purchased
during a particular time period or through particular channels) designed to
ensure that Persons from which it purchased mortgage loans properly applied
the
underwriting criteria designated by the Seller.
Qualified
Depository:
A
depository the accounts of which are insured by the FDIC through the BIF or
the
SAIF and the debt obligations of which are rated AA or better by Standard &
Poor’s, A Division of The McGraw Hill Companies.
Qualified
Insurer:
A
mortgage guaranty insurance company duly authorized and licensed where required
by law to transact mortgage guaranty insurance business and approved as an
insurer by Xxxxxx Xxx or Xxxxxxx Mac.
Rating
Agency:
Any of
Fitch, Inc., Xxxxx’x Investors Service, Inc. or Standard & Poor’s Rating
Services, A Division of The XxXxxx-Xxxx Companies, Inc., or their respective
successors or such other Rating Agency as may be designated by the
Purchaser.
Recognition
Agreement:
An
agreement whereby a Cooperative and a lender with respect to a Cooperative
Loan
(i) acknowledge that such lender may make, or intends to make, such Cooperative
Loan, and (ii) make certain agreements with respect to such Cooperative
Loan.
-12-
Reconstitution:
Any
Securitization Transaction, Whole Loan Transfer or Agency Transfer.
Reconstitution
Agreement:
The
mutually agreeable agreement or agreements entered into by the Purchaser, the
Seller, Xxxxxx Xxx or Xxxxxxx Mac or certain third parties on the Reconstitution
Date(s) with respect to any or all of the Mortgage Loans serviced hereunder,
in
connection with a Securitization Transaction or an Agency Transfer as set forth
in Section 29, including, but not limited to, (i) a Xxxxxx Mae Mortgage Selling
and Servicing Contract (as defined in the Xxxxxx Xxx Guides), a pool purchase
contract, and any and all servicing agreements and tri-party agreements
reasonably required by Xxxxxx Mae with respect to an Agency Transfer to Xxxxxx
Xxx, (ii) a purchase contract and all purchase documents associated therewith
as
set forth in the Xxxxxxx Mac Guides, and any and all servicing agreements and
tri-party agreements reasonably required by Xxxxxxx Mac with respect to an
Agency Transfer to Xxxxxxx Mac, and (iii) a pooling and servicing Agreement
and/or a subservicing/master servicing agreement and related custodial/trust
agreement and related documents with respect to a Securitization
Transaction.
Reconstitution
Date:
The
date or dates on which any or all of the Mortgage Loans serviced under this
Agreement shall be removed from this Agreement and reconstituted as part of
an
Agency Transfer or a Securitization Transaction pursuant to Section 29 hereof.
On such date or dates, the Mortgage Loans transferred shall cease to be covered
by this Agreement and the Seller’s servicing responsibilities shall cease under
this Agreement with respect to the related transferred Mortgage
Loans.
Regulation AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan.
7, 2005)) or by the staff of the Commission, or as may be provided by the
Commission or its staff from time to time.
REMIC:
A “real
estate mortgage investment conduit” within the meaning of Section 860D of the
Code.
REMIC
Documents:
The
document or documents creating and governing the administration of a
REMIC.
REMIC
Eligible Mortgage Loan:
A
Mortgage Loan held by a REMIC which satisfies and/or complies with all
applicable REMIC Provisions.
REMIC
Provisions:
Provisions of the federal income tax law relating to a REMIC, which appear
at
Section 860A through 86OG of Subchapter M of Chapter 1, Subtitle A of the Code,
and related provisions, and regulations, rulings or pronouncements promulgated
thereunder, as the foregoing may be in effect from time to time.
Remittance
Date:
The
18th
day of
each month (or if such day is not a Business Day, the Business Day immediately
following such 18th
day).
-13-
REO
Disposition Proceeds:
All
amounts received with respect to an REO disposition.
REO
Property:
A
Mortgaged Property acquired by the Seller on behalf of the Purchaser through
foreclosure or by deed in lieu of foreclosure, as described in Section
4(p).
Repurchase
Price:
With
respect to any Mortgage Loan, a price equal to (a) the Stated Principal Balance
of the Mortgage Loan plus (b) interest on such Stated Principal Balance at
the
Mortgage Interest Rate from the date on which interest has last been paid and
distributed to the Purchaser to the date of repurchase, less amounts received,
if any, plus amounts advanced, if any, by any servicer, in respect of such
repurchased Mortgage Loan plus (c) any costs and damages incurred by the trust
with respect to any securitization of the Mortgage Loan in connection with
any
violation by such Mortgage Loan of any predatory- or abusive-lending
law.
Sarbanes
Certification:
As
defined in Section 5(g).
Second
Lien Mortgage Loan:
A
Mortgage Loan secured by a second lien on the related Mortgaged
Property.
Securitization
Transaction:
Any
transaction involving either (1) a sale or other transfer of some or all of
the
Mortgage Loans directly or indirectly to an issuing entity in connection with
an
issuance of publicly offered or privately placed, rated or unrated
mortgage-backed securities or (2) an issuance of publicly offered or privately
placed, rated or unrated securities, the payments on which are determined
primarily by reference to one or more portfolios of residential mortgage loans
consisting, in whole or in part, of some or all of the Mortgage
Loans.
Seller:
American Home Mortgage Corp., or its successor in interest or assigns or any
successor to the Seller under this Agreement as herein provided; provided,
the
term “Seller” shall be deemed to mean AHMS to extent that the Seller is acting
in its capacity as servicer under this Agreement.
Seller
Employees:
As
defined in Section 4(l).
Seller
Information:
As
defined in Section 9(b).
Servicer:
As
defined in Section 29(a).
Servicing
Criteria:
The
“servicing criteria” set forth in Item 1122(d) of Regulation AB, as such may be
amended from time to time.
Servicing
Advances:
All
customary, reasonable and necessary “out of pocket” costs and expenses other
than Monthly Advances and Nonrecoverable Advances (including reasonable
attorneys’ fees and disbursements) incurred in the performance by the Seller of
its servicing obligations, including, but not limited to, the cost of (a) the
preservation, restoration and protection of the Mortgaged Property, (b) any
enforcement or judicial proceedings, including foreclosures, (c) the management
and liquidation of any REO Property and (d) compliance with the obligations
under Sections 4(a), 4(b), 4(h), 4(j), 4(m), 4(n) and 4(p).
-14-
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, Condemnation Proceeds and Insurance
Proceeds, to the extent permitted by Section 4(e)) of such Monthly Payment
collected by the Seller.
Servicing
Fee Rate:
Such
amount as set forth in the related Purchase Price and Terms
Agreement.
Servicing
File:
With
respect to each Mortgage Loan the file retained by the Seller consisting of
originals of all documents in the Mortgage File, which are not delivered to
the
Purchaser or the Purchaser’s designee, and copies of the Mortgage Loan Documents
listed on Exhibit
B
hereto
Special
Servicer:
Such
Person designated by the Purchaser in its sole discretion to assume the
servicing of Distressed Mortgage Loans pursuant to Section 28(d).
Stated
Principal Balance:
As to
each Mortgage Loan, (a) the principal balance of the Mortgage Loan at the
related Cut-off Date after giving effect to payments of principal due on or
before such date, whether or not received, minus (b) all amounts previously
distributed to the Purchaser with respect to the related Mortgage Loan
representing payments or recoveries of principal or advances in lieu
thereof.
Static
Pool Information:
Static
pool information as described in Item 1105(a)(1)-(3) and 1105(c) of Regulation
AB.
Stock
Certificate:
With
respect to a Cooperative Loan, a certificate evidencing ownership of the
Cooperative Shares issued by the Cooperative.
Stock
Power:
With
respect to a Cooperative Loan, an assignment of the Stock Certificate or an
assignment of the Cooperative Shares issued by the Cooperative.
Subcontractor:
Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of Mortgage Loans but performs one or more
discrete functions identified in Item 1122(d) of Regulation AB with respect
to
Mortgage Loans under the direction or authority of the Seller or a
Subservicer.
Subservicer:
Any
Person that services Mortgage Loans on behalf of the Seller or any Subservicer
and is responsible for the performance (whether directly or through Subservicers
or Subcontractors) of a substantial portion of the material servicing functions
required to be performed by the Seller under this Agreement or any
Reconstitution Agreement that are identified in Item 1122(d) of Regulation
AB.
The initial Subservicer of the Mortgage Loans shall be American Home Mortgage
Servicing, Inc..
-15-
Tax
Returns:
The
federal income tax return on Internal Revenue Service Form 1066, U.S. Real
Estate Mortgage Investment Conduit Income Tax Return, including Schedule Q
thereto, Quarterly Notice to Residual Interest Holders of REMIC Taxable Income
or Net Loss Allocation, or any successor forms, to be filed on behalf of any
REMIC under the REMIC Provisions, together with any and all other information,
reports or returns that may be required to be furnished to the certificate
holders under a REMIC or filed with the Internal Revenue Service or any other
governmental taxing authority under any applicable provisions of federal, state
or local tax laws.
Third-Party
Originator:
Each
Person, other than a Qualified Correspondent, that originated Mortgage Loans
acquired by the Seller.
Transfer
Date:
In the
event that the Seller’s servicing responsibilities hereunder are terminated
pursuant to Section 28, the day that the Purchaser may determine that the
servicing function may be transferred to a successor servicer. Each transfer
of
servicing on a Transfer Date shall be deemed to be effective immediately
following the close of business on such Transfer Date.
Underwriting
Guidelines.
The
underwriting guidelines of the Seller delivered to the Purchaser prior to each
Closing Date and used in connection with the origination of each Mortgage Loan
included in the related Mortgage Loan Package.
Whole
Loan Transfer:
The
sale or transfer of some or all of the Mortgage Loans to a third party purchaser
in a whole loan transaction pursuant to a loan purchase, warranties and
servicing agreement or a participation and servicing agreement, or similar
agreement, retaining the Seller as “servicer” thereunder.
The
parties intend hereby to set forth the terms and conditions upon which the
proposed transactions will be effected, and, in consideration of the premises
and the mutual agreements set forth herein, agree as follows:
| SECTION 2. |
CONVEYANCE
FROM SELLER TO PURCHASER.
|
(a) Conveyance
of Mortgage Loans; Possession of Mortgage Files.
On
each
Closing Date, the Seller, simultaneously with the execution and delivery of
the
related Acknowledgment and Conveyance Agreement, does hereby sell, transfer,
assign, set over and convey to the Purchaser, without recourse, but subject
to
the terms of this Agreement, all rights, title and interest of the Seller in
and
to the Mortgage Loans included in the related Mortgage Loan Package, together
with the Mortgage Files and all rights and obligations arising under the
documents contained therein for each Mortgage Loan. Pursuant to Section 2(c)
hereof, on or prior to each Closing Date, the Seller shall deliver the Mortgage
File for each Mortgage Loan included in the related Mortgage Loan Package to
the
Purchaser or its designee. The contents of each Servicing File required to
be
retained by the Seller to service the Mortgage Loans included in the related
Mortgage Loan Package pursuant to this Agreement and thus not delivered to
the
Purchaser are and shall be held in trust by the Seller for the benefit of
Purchaser as the owner thereof. The Seller’s possession of any portion of the
Servicing File is at the will of the Purchaser for the sole purpose of
facilitating servicing of the related Mortgage Loan pursuant to this Agreement,
and such retention and possession by the Seller shall be in a custodial capacity
only. On each Closing Date, the ownership of each Mortgage Note, Mortgage,
and
the contents of the Mortgage File and Servicing File shall vest in the Purchaser
and the ownership of all records and documents with respect to the related
Mortgage Loan prepared by or which come into the possession of the Seller
thereafter shall immediately vest in the Purchaser and shall be retained and
maintained, in trust, by the Seller at the will of the Purchaser in such
custodial capacity only. The Servicing File retained by the Seller pursuant
to
this Agreement shall be segregated from the other books and records of the
Seller and shall be appropriately marked to clearly reflect the sale of the
related Mortgage Loan to the Purchaser. The Seller shall release from its
custody the contents of any Servicing File retained by it only in accordance
with the written instructions of the Purchaser, except when such release is
required in connection with a repurchase of any such Mortgage Loan pursuant
to
Section 8 or is required as incidental to the Seller’s servicing of the Mortgage
Loans.
-16-
(b) Books
and Records.
Record
title to each Mortgage and the related Mortgage Note as of the applicable
Closing Date shall be in the name of the Purchaser or as Purchaser shall
designate. All rights arising out of the Mortgage Loans including, but not
limited to, all funds received by the Seller after the related Cut-off Date
on
or in connection with a Mortgage Loan shall be vested in the Purchaser (other
than scheduled payments due on or before the related Cut-Off Date and collected
after the related Cut-Off Date, which shall belong to Seller); provided,
however, that all funds received on or in connection with a Mortgage Loan shall
be received and held by the Seller in trust for the benefit of the Purchaser
as
the owner of the Mortgage Loans for the sole purpose of facilitating the
servicing and the supervision of the servicing of the Mortgage Loans. The Seller
shall maintain with respect to each Mortgage Loan and shall make available
for
inspection by the Purchaser or its designee the related Servicing File during
the time the Purchaser retains ownership of a Mortgage Loan and thereafter
in
accordance with applicable laws and regulations.
The
sale
of each Mortgage Loan shall be reflected on the Seller’s balance sheet and other
financial statements as a sale of assets by the Seller. The Seller shall be
responsible for maintaining, and shall maintain, a complete set of books and
records for each Mortgage Loan which shall be marked clearly to reflect the
ownership of each Mortgage Loan by the Purchaser. In particular, the Seller
shall maintain in its possession, available for inspection by the Purchaser,
or
its designee and shall deliver to the Purchaser upon demand, evidence of
compliance with all federal, state and local laws, rules and regulations, and
requirements of Xxxxxx Xxx or Xxxxxxx Mac, including but not limited to
documentation as to the method used in determining the applicability of the
provisions of the Flood Disaster Protection Act of 1973, as amended, to the
Mortgaged Property, documentation evidencing insurance coverage and eligibility
of any condominium project for approval by Xxxxxx Mae. To the extent that
original documents are not required for purposes of realization of Liquidation
Proceeds, Condemnation Proceeds or Insurance Proceeds, documents maintained
by
the Seller may be in the form of microfilm or microfiche or such other reliable
means of recreating original documents, including but not limited to, optical
imagery techniques so long as the Seller complies with the requirements of
the
Xxxxxx Xxx Guides, as amended from time to time.
-17-
The
Seller shall keep at its servicing office books and records in which, subject
to
such reasonable regulations as it may prescribe, the Seller shall note transfers
of Mortgage Loans. No transfer of a Mortgage Loan may be made unless such
transfer is in compliance with the terms hereof. For the purposes of this
Agreement, the Seller shall be under no obligation to deal with any person
with
respect to this agreement or the Mortgage Loans unless the books and records
show such person as the owner of the Mortgage Loan. The Purchaser may, subject
to the terms of this Agreement, sell and transfer one or more of the Mortgage
Loans. The Purchaser also shall advise the Seller of the transfer. Upon receipt
of notice of the transfer, the Seller shall xxxx its books and records to
reflect the ownership of the Mortgage Loans of such assignee, and shall release
the previous Purchaser from its obligations hereunder with respect to the
Mortgage Loans sold or transferred.
(c) Delivery
of Mortgage Loan Documents.
No
later
than the date set forth in the related Purchase Price and Terms Agreement,
the
Seller shall deliver and release to the Custodian those Mortgage Loan Documents
as required by this Agreement with respect to each Mortgage Loan included in
the
related Mortgage Loan Package, a list of which is attached as Exhibit
B
hereto.
On or prior to the related Closing Date, the Custodian shall have certified
its
receipt of all such Mortgage Loan Documents required to be delivered pursuant
to
the Custodial Agreement, as evidenced by the initial certification of the
Custodian in the form annexed to the Custodial Agreement. The Purchaser shall
be
responsible for maintaining the Custodial Agreement and shall pay all fees
and
expenses of the Custodian. On the related Closing Date, the Seller shall release
any interest that it has in the Mortgage Loan Documents upon its receipt of
the
Purchase Price for the Mortgage Loans. Within thirty (30) days of receipt by
the
Seller of any notice from the Purchaser or the Custodian that any of the
Mortgage Loan Documents is missing, does not appear regular on its face (i.e.,
is mutilated, damaged, defaced, torn or otherwise physically altered) or appears
to be unrelated to the Mortgage Loans identified in the Mortgage Loan Schedule
(each, a “Material
Defect”),
the
Seller shall cure such Material Defect (and, in such event, the Seller shall
provide the Purchaser with an Officer’s Certificate confirming that such cure
has been effected). If the Seller does not so cure such Material Defect, it
shall, if such Material Defect would under Accepted Servicing Practices
reasonably be expected to result in a loss, repurchase the related Mortgage
Loan
at the Repurchase Price. A loss shall be deemed to be attributable to the
failure of the Seller to cure a Material Defect if, as determined by the
Purchaser acting in good faith, absent such Material Defect, such loss would
not
have been incurred. In addition to such repurchase obligation, the Seller shall
indemnify the Purchaser and hold it harmless against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments, and other costs and expenses resulting from any missing,
mutilated or improper Mortgage Loan Document, or any claim, demand, defense
or
assertion based on or grounded upon, or resulting therefrom, as well as for
any
expenses reasonably incurred by the Purchaser in enforcing its remedies
hereunder in connection with any missing, mutilated or improper Mortgage Loan
Document.
-18-
The
Seller shall forward to the Custodian original documents evidencing an
assumption, modification, consolidation or extension of any Mortgage Loan
entered into in accordance with the Section 4(a) and 4(w) within one week of
their execution, provided, however, that the Seller shall provide the Custodian
with a certified true copy of any such document submitted for recordation within
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.
The
Seller shall deliver a final Mortgage Loan Schedule for the Mortgage Loans
included in any Mortgage Loan Package to be purchased on any Closing Date to
the
Purchaser no later than the date set forth in the related Purchase Price and
Terms Agreement.
In
the
event that new, replacement, substitute or additional Stock Certificates are
issued with respect to existing Cooperative Shares, the Seller shall promptly
deliver to the Custodian the new Stock Certificates, together with the related
Stock Powers in blank. Such new Stock Certificates shall be subject to the
related Pledge Instruments and shall be subject to all of the terms, covenants
and conditions of this Agreement.
(d) MERS
Mortgage Loans.
With
respect to each MERS Mortgage Loan, the Seller shall, on or prior to the related
Closing Date, designate the Purchaser as the Investor and the Custodian as
custodian, and no Person shall be listed as Interim Funder on the MERS System.
In addition, on or prior to the related Closing Date, the Seller shall provide
the Custodian and the Purchaser with a MERS Report listing the Purchaser as
the
Investor, the Custodian as custodian and no Person as Interim Funder with
respect to each MERS Mortgage Loan.
| SECTION 3. |
PURCHASE
PRICE.
|
(a) The
Purchase Price shall be the percentage of par as stated in the related Purchase
Price and Terms Agreement (subject to the adjustments as provided therein),
multiplied by the aggregate principal balance, as of the related Cut-off Date,
of the Mortgage Loans listed on the related Mortgage Loan Schedule, after
application of payments of principal
received on or before the related Cut-off Date. Notwithstanding the foregoing,
if a Mortgage Loan prepays in full between the related Cut-off Date and the
related Closing Date, inclusive, the Seller shall either remove such Mortgage
Loan from the Mortgage Loan Schedule or reimburse the Purchaser for the premium
over par which the Purchaser paid within three (3) days of the related Closing
Date. The initial principal amount of the Mortgage Loans shall be the aggregate
principal balance of such Mortgage Loans, so computed as of the related Cut-off
Date.
On each
Closing Date, the Purchaser shall deduct from the Purchase Price proceeds
certain costs and expenses set forth in Section 13 or in the related Purchase
Price and Terms Agreement.
-19-
In
addition to the Purchase Price as described above, the Purchaser shall pay
to
the Seller, on the related Closing Date, accrued interest on the initial
principal amount of the Mortgage Loans at the Mortgage Loan Remittance Rate
from
the related Cut-Off Date through the day prior to the related Closing Date,
inclusive.
(b) The
Purchase Price shall be paid on the related Closing Date by wire transfer of
immediately available federal funds.
(c) The
Purchaser shall be entitled to (i) all scheduled principal and interest (at
the
Mortgage Interest Rate) due after the related Cut-off Date and (ii) all other
recoveries of late charges, assumption fees or other charges collected after
the
related Cut-off Date. The principal balance of each Mortgage Loan as of the
related Cut-off Date is determined after application of payments of principal
received on or before the related Cut-off Date. All payments of principal and
interest (minus interest at the Servicing Fee Rate) due on the first day of
the
month after the related Cut-off Date shall belong to the Purchaser.
| SECTION 4. |
SERVICING
OF THE MORTGAGE LOANS.
|
(a) Seller
to Act as Servicer.
The
Seller, as an independent contractor, shall service and administer the Mortgage
Loans (or arrange for such servicing and administration through one or more
Subservicers) in the related Mortgage Loan Package from and after each Closing
Date and shall have full power and authority, acting alone or through a
Subservicer as provided in Section 4(aa), to do any and all things in connection
with such servicing and administration which the Seller may deem necessary
or
desirable, consistent with the terms of this Agreement and with Accepted
Servicing Practices.
Consistent
with the terms of this Agreement, the Seller may waive, modify or vary any
term
of any Mortgage Loan or consent to the postponement of strict compliance with
any such term or in any manner grant indulgence to any Mortgagor if in the
Seller’s reasonable and prudent determination such waiver, modification,
postponement or indulgence is not materially adverse to the Purchaser, provided,
however, that the Seller shall not make any future advances with respect to
a
Mortgage Loan and (unless the Mortgagor is in default with respect to the
Mortgage Loan or such default is, in the judgment of the Seller, imminent)
the
Seller shall not permit any modification of any material term of any Mortgage
Loan including any modifications that would change the Mortgage Interest Rate,
defer or forgive the payment of principal or interest, reduce or increase the
outstanding principal balance (except for actual payments of principal) or
change the final maturity date on such Mortgage Loan. In the event of any such
modification which permits the deferral of interest or principal payments on
any
Mortgage Loan, the Seller shall, on the Business Day immediately preceding
the
Remittance Date in any month in which any such principal or interest payment
has
been deferred, deposit in the Custodial Account from its own funds, in
accordance with Section 5(c), 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 made pursuant to Section 5(c). Without
limiting the generality of the foregoing, the Seller shall continue, and is
hereby authorized and empowered, to execute and deliver on behalf of itself
and
the Purchaser, all instruments of satisfaction or cancellation, or of partial
or
full release, discharge and all other comparable instruments, with respect
to
the Mortgage Loans and with respect to the Mortgaged Properties. If reasonably
required by the Seller, the Purchaser shall furnish the Seller with any powers
of attorney and other documents necessary or appropriate to enable the Seller
to
carry out its servicing and administrative duties under this
Agreement.
-20-
In
servicing and administering the Mortgage Loans, the Seller shall employ
procedures (including collection procedures) and exercise the same care that
it
customarily employs and exercises in servicing and administering mortgage loans
for its own account, giving due consideration to Accepted Servicing Practices
where such practices do not conflict with the requirements of this Agreement,
and the Purchaser’s reliance on the Seller.
With
respect to any Second Lien Mortgage Loan, if the Seller is notified that any
First Lien lienholder has accelerated or intends to accelerate the obligations
secured by the First Lien, or has declared or intends to declare a default
under
the Mortgage or the Mortgage Note secured thereby, or has filed or intends
to
file an election to have the Mortgaged Property sold or foreclosed, the Seller
shall immediately notify the Purchaser of any such notice from or action by
the
First Lien lienholder. The Seller shall further take such action as (1) the
Seller would take under similar circumstances with respect to a similar mortgage
loan held for its own account for investment, (2) shall be consistent with
Accepted Servicing Practices, (3) the Seller shall determine prudently to be
in
the best interest of Purchaser and (4) is consistent with any related PMI
Policy.
In
the
event that the Seller reasonably deems that the factual circumstances require
prompt action, the Seller may (but shall not be obligated to) without notice
to
the Purchaser, advance the necessary funds to cure the default or reinstate
the
First Lien so as to best protect the Purchaser’s interest. The Seller shall
thereafter notify the Purchaser of the action taken, including the amount of
the
advance. The Purchaser shall reimburse the Seller for all advances made pursuant
to this paragraph. The Seller shall thereafter take immediate action to recover
from the Mortgagor the amount so advanced.
The
Seller shall cause to be maintained for each Cooperative Loan a copy of the
financing statements and shall file such financing statements and continuation
statements as necessary, in accordance with the Uniform Commercial Code
applicable in the jurisdiction in which the related Cooperative Apartment is
located, to perfect and protect the security interest and lien of the
Purchaser.
(b) Liquidation
of Mortgage Loans.
In the
event that any payment due under any Mortgage Loan and not postponed pursuant
to
Section 4(a) is not paid when the same becomes due and payable, or in the event
the Mortgagor fails to perform any other covenant or obligation under the
Mortgage Loan and such failure continues beyond any applicable grace period,
the
Seller shall take such action as (1) the Seller would take under similar
circumstances with respect to a similar mortgage loan held for its own account
for investment, (2) shall be consistent with Accepted Servicing Practices,
(3)
the Seller shall determine prudently to be in the best interest of Purchaser
and
(4) is consistent with any related PMI Policy. In the event that any payment
due
under any Mortgage Loan is not postponed pursuant to Section 4(a) and remains
delinquent for a period of ninety (90) days or any other default continues
for a
period of ninety (90) days beyond the expiration of any grace or cure period,
the Seller shall commence foreclosure proceedings. In such connection, the
Seller shall from its own funds make all necessary and proper Servicing
Advances, provided, however, that the Seller shall not be required to expend
its
own funds in connection with any foreclosure or towards the restoration or
preservation of any Mortgaged Property, unless it shall determine (a) that
such
preservation, restoration and/or foreclosure will increase the proceeds of
liquidation of the Mortgage Loan to Purchaser after reimbursement to itself
for
such expenses and (b) that such expenses will be recoverable by it either
through Liquidation Proceeds (respecting which it shall have priority for
purposes of withdrawals from the Custodial Account pursuant to Section 4(e))
or
through Insurance Proceeds (respecting which it shall have similar
priority).
-21-
(c) Collection
of Mortgage Loan Payments.
Continuously from the related Closing Date until the date each Mortgage Loan
ceases to be subject to this Agreement, the Seller shall proceed diligently
to
collect all payments due under each of the Mortgage Loans when the same shall
become due and payable and shall take special care in ascertaining and
estimating Escrow Payments and all other charges that will become due and
payable with respect to the Mortgage Loans and each related Mortgaged Property,
to the end that the installments payable by the Mortgagors will be sufficient
to
pay such charges as and when they become due and payable.
(d) Establishment
of and Deposits to Custodial Account.
The
Seller shall segregate and hold all funds collected and received pursuant to
a
Mortgage Loan separate and apart from any of its own funds and general assets
and shall establish and maintain one or more Custodial Accounts, in the form
of
time deposit or demand accounts, titled “American Home Mortgage Corp., in trust
for Xxxxxx Brothers Bank, FSB, purchaser of Conventional Residential Adjustable
and Fixed Rate Mortgage Loans, Group No. 2007-FLOW”. The Custodial Account shall
be established with a Qualified Depository acceptable to the Purchaser. Any
funds deposited in the Custodial Account shall at all times be fully insured
to
the full extent permitted under applicable law. Funds deposited in the Custodial
Account may be drawn on by the Seller in accordance with Section 4(e). The
creation of any Custodial Account shall be evidenced by a letter agreement
in
the form of Exhibit
G
hereto.
A copy of such letter agreement shall be furnished to the Purchaser and, upon
request, to any subsequent purchaser of the Mortgage Loans.
The
Seller shall deposit in the Custodial Account on a daily basis within two (2)
Business Days of receipt, and retain therein, the following collections received
by the Seller and payments made by the Seller after the Cut-off
Date:
(i) all
payments on account of principal on the Mortgage Loans, including all Principal
Prepayments;
(ii) all
payments on account of interest on the Mortgage Loans adjusted to the Mortgage
Loan Remittance Rate;
-22-
(iii) any
Prepayment Charge received in connection with the Mortgage Loans;
(iv) all
Liquidation Proceeds;
(v) all
Insurance Proceeds including amounts required to be deposited pursuant to
Section 4(j) (other than proceeds to be held in the Escrow Account and applied
to the restoration or repair of the Mortgaged Property or released to the
Mortgagor in accordance with Section 4(n)), Section 4(k) and Section
4(o);
(vi) all
Condemnation Proceeds which are not applied to the restoration or repair of
the
Mortgaged Property or released to the Mortgagor in accordance with Section
4(n);
(vii) any
amounts payable in connection with the repurchase of any Mortgage Loan pursuant
to Section 8;
(viii) any
amounts required to be deposited by the Seller pursuant to Section 4(k) in
connection with the deductible clause in any blanket hazard insurance
policy;
(ix) any
amounts required to be deposited by the Seller pursuant to Section 4(o) in
connection with any unpaid claims that are a result of a breach by the Seller
or
any Subservicer of the obligations hereunder or under the terms of a PMI
Policy;
(x) any
amounts received by the Seller under a PMI or LPMI Policy;
(xi) with
respect to each Principal Prepayment in full or in part, the Prepayment Interest
Shortfall Amount, if any, for the month of distribution. Such deposit shall
be
made from the Seller’s own funds, without reimbursement therefor up to a maximum
amount per month of the Servicing Fee actually received for such month for
the
Mortgage Loans;
(xii) any
amounts received with respect to or related to any REO Property and all REO
Disposition Proceeds pursuant to Section 4(p); and
(xiii) any
other
amount required to be deposited into the Custodial Account pursuant to the
terms
hereof.
The
foregoing requirements for deposit into the Custodial Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of Ancillary Income need not be
deposited by the Seller into the Custodial Account. Any interest paid on funds
deposited in the Custodial Account by the depository institution shall accrue
to
the benefit of the Seller and the Seller shall be entitled to retain and
withdraw such interest from the Custodial Account pursuant to Section
4(e).
-23-
(e) Permitted
Withdrawals From Custodial Account.
The
Seller shall, from time to time, withdraw funds from the Custodial Account
for
the following purposes:
(i) to
make
payments to the Purchaser in the amounts and in the manner provided for in
Section 5(a);
(ii) to
reimburse itself for Monthly Advances of the Seller’s funds made pursuant to
Section 5(c), the Seller’s right to reimburse itself pursuant to this subclause
(ii) being limited to amounts received on the related Mortgage Loan which
represent late payments of principal and/or interest respecting which any such
advance was made, it being understood that, in the case of any such
reimbursement, the Seller’s right thereto shall be prior to the rights of
Purchaser, except that, where the Seller is required to repurchase a Mortgage
Loan pursuant to Section 8, the Seller’s right to such reimbursement shall be
subsequent to the payment to the Purchaser of the Repurchase Price pursuant
to
such sections and all other amounts required to be paid to the Purchaser with
respect to such Mortgage Loan;
(iii) to
reimburse itself for unreimbursed Servicing Advances, and for 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
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds and such other
amounts as may be collected by the Seller from the Mortgagor or otherwise
relating to the Mortgage Loan, it being understood that, in the case of any
such
reimbursement, the Seller’s right thereto shall be prior to the rights of
Purchaser except where the Seller is required to repurchase a Mortgage Loan
pursuant to Section 8, in which case the Seller’s right to such reimbursement
shall be subsequent to the payment to the Purchaser of the Repurchase Price
pursuant to such sections and all other amounts required to be paid to the
Purchaser with respect to such Mortgage Loan;
(iv) to
pay
itself interest on funds deposited in the Custodial Account;
(v) to
reimburse itself for expenses incurred and reimbursable to it pursuant to
Section 9(a);
(vi) with
respect to each LPMI Loan, an amount equal to the related LPMI Fee to make
payment of premiums due under the LPMI Policy;
(vii) to
pay
any amount required to be paid pursuant to Section 4(p) related to any REO
Property, it being understood that in the case of any such expenditure or
withdrawal related to a particular REO Property, the amount of such expenditure
or withdrawal from the Custodial Account shall be limited to amounts on deposit
in the Custodial Account with respect to the related REO Property;
(viii) to
clear
and terminate the Custodial Account upon the termination of this Agreement;
-24-
(ix) to
reimburse itself following a final liquidation of a Mortgage Loan for any
previously unreimbursed Nonrecoverable
Advances;
and
(x) to
withdraw funds deposited in error.
In
the
event that the Custodial Account is interest bearing, on each Remittance Date,
the Seller shall withdraw all funds from the Custodial Account except for those
amounts which, pursuant to Section 5(a), the Seller is not obligated to remit
on
such Remittance Date. The Seller may use such withdrawn funds only for the
purposes described in this Section 4(e).
(f) Establishment
of and Deposits to Escrow Account.
The
Seller shall segregate and hold all funds collected and received pursuant to
a
Mortgage Loan constituting Escrow Payments separate and apart from any of its
own funds and general assets and shall establish and maintain one or more Escrow
Accounts, in the form of time deposit or demand accounts, titled, “American Home
Mortgage Corp., in trust for Xxxxxx Brothers Bank, FSB, purchaser of
Conventional Residential Adjustable and Fixed Rate Mortgage Loans, Group No.
2007-FLOW, and various Mortgagors”. The Escrow Accounts shall be established
with a Qualified Depository, in a manner which shall provide maximum available
insurance thereunder. Funds deposited in the Escrow Account may be drawn on
by
the Seller in accordance with Section 4(g). The creation of any Escrow Account
shall be evidenced by a letter agreement in the form of Exhibit
H.
A copy
of such letter agreement shall be furnished to the Purchaser and, upon request,
to any subsequent purchaser.
The
Seller shall deposit in the Escrow Account or Accounts on a daily basis within
two (2) Business Days of receipt, and retain therein:
(i) all
Escrow Payments collected on account of the Mortgage Loans, for the purpose
of
effecting timely payment of any such items as required under the terms of this
Agreement; and
(ii) all
amounts representing Insurance Proceeds or Condemnation Proceeds which are
to be
applied to the restoration or repair of any Mortgaged Property.
The
Seller shall make withdrawals from the Escrow Account only to effect such
payments as are required under this Agreement, as set forth in Section 4(g).
The
Seller shall be entitled to retain any interest paid on funds deposited in
the
Escrow Account by the depository institution, other than interest on escrowed
funds required by law to be paid to the Mortgagor. To the extent required by
law, the Seller shall pay interest on escrowed funds to the Mortgagor
notwithstanding that the Escrow Account may be non-interest bearing or that
interest paid thereon is insufficient for such purposes.
(g) Permitted
Withdrawals From Escrow Account.
Withdrawals from the Escrow Account or Accounts may be made by the Seller
only:
(i) to
effect
timely payments of ground rents, taxes, assessments, water rates, mortgage
insurance premiums, condominium charges, fire and hazard insurance premiums
or
other items constituting Escrow Payments for the related Mortgage;
-25-
(ii) to
reimburse the Seller for any Servicing Advances made by the Seller pursuant
to
Section 4(h) with respect to a related Mortgage Loan, but only from amounts
received on the related Mortgage Loan which represent late collections of Escrow
Payments thereunder;
(iii) to
refund
to any Mortgagor any funds found to be in excess of the amounts required under
the terms of the related Mortgage Loan;
(iv) for
transfer to the Custodial Account and application to reduce the principal
balance of the Mortgage Loan in accordance with the terms of the related
Mortgage and Mortgage Note;
(v) for
application to restoration or repair of the Mortgaged Property in accordance
with the procedures outlined in Section 4(n);
(vi) to
pay to
the Seller, or any Mortgagor to the extent required by law, any interest paid
on
the funds deposited in the Escrow Account;
(vii) to
clear
and terminate the Escrow Account on the termination of this Agreement;
and
(viii) to
withdraw funds deposited in error.
(h) Payment
of Taxes, Insurance and Other Charges.
(i) With
respect to each Mortgage Loan which provides for Escrow Payments, the Seller
shall maintain accurate records reflecting the status of ground rents, taxes,
assessments, water rates, sewer rents, and other charges which are or may become
a lien upon the Mortgaged Property and the status of PMI Policy premiums and
fire and hazard insurance coverage and shall obtain, from time to time, all
bills for the payment of such charges (including renewal premiums)
(“Property
Charges”)
and
shall effect payment thereof prior to the applicable penalty or termination
date, employing for such purpose deposits of the Mortgagor in the Escrow Account
which shall have been estimated and accumulated by the Seller in amounts
sufficient for such purposes, as allowed under the terms of the Mortgage. The
Seller assumes full responsibility for the timely payment of all such bills
and
shall effect timely payment of all such charges irrespective of each Mortgagor’s
faithful performance in the payment of same or the making of the Escrow
Payments, and the Seller shall make advances from its own funds to effect such
payments.
(ii) To
the
extent that a Mortgage Loan does not provide for Escrow Payments, the Seller
shall make advances from its own funds to effect payment of all Property Charges
upon receipt of notice of any failure to pay on the part of the Mortgagor,
or at
such other time as the Seller determines to be in the best interest of the
Purchaser, provided, that in any event the Seller shall pay such charges on
or
before the earlier of (a) any date by which payment is necessary to preserve
the
lien status of the Mortgage or (b) the date which is ninety days after the
date
on which such charges first became due. The Seller shall pay any late fee or
penalty which is payable due to any delay in payment of any Property Charge
after the earlier to occur of (a) the date on which the Seller receives notice
of the failure of the Mortgagor to pay such Property Charge or (b) the date
which is ninety days after the date on which such charges first became
due.
-26-
(i) Protection
of Accounts.
The
Seller may transfer the Custodial Account or the Escrow Account to a different
Qualified Depository from time to time. Such transfer shall be made only upon
obtaining the consent of the Purchaser, which consent shall not be withheld
unreasonably.
The
Seller shall bear any expenses, losses or damages sustained by the Purchaser
because the Custodial Account and/or the Escrow Account are not demand deposit
accounts.
Amounts
on deposit in the Custodial Account and the Escrow Account may at the option
of
the Seller be invested in Eligible Investments; provided that in the event
that
amounts on deposit in the Custodial Account or the Escrow Account exceed the
amount fully insured by the FDIC (the “Insured
Amount”)
the
Seller shall be obligated to invest the excess amount over the Insured Amount
in
Eligible Investments on the same Business Day as such excess amount becomes
present in the Custodial Account or the Escrow Account. Any such Eligible
Investment shall mature no later than the third (3rd)
calendar day prior to the Remittance Date next following the date of such
Eligible Investment, provided, however, that if such Eligible Investment is
an
obligation of a Qualified Depository that maintains the Custodial Account or
the
Escrow Account, then such Eligible Investment may mature on such Remittance
Date. Any such Eligible Investment shall be made in the name of the Seller
in
trust for the benefit of the Purchaser. All income on or gain realized from
any
such Eligible Investment shall be for the benefit of the Seller and may be
withdrawn at any time by the Seller. Any losses incurred in respect of any
such
investment shall be deposited in the Custodial Account or the Escrow Account,
by
the Seller out of its own funds immediately as realized.
(j) Maintenance
of Hazard Insurance.
The
Seller shall cause to be maintained for each Mortgage Loan hazard insurance
such
that all buildings upon the Mortgaged Property are insured by a generally
acceptable insurer rated A:VI or better in the current Best’s Key Rating Guide
(“Best’s”)
against loss by fire, hazards of extended coverage and such other hazards as
are
customary in the area where the Mortgaged Property is located, in an amount
which is at least equal to the lesser of (i) the replacement value of the
improvements securing such Mortgage Loan and (ii) the greater of (a) the
outstanding principal balance of the Mortgage Loan and (b) an amount such that
the proceeds thereof shall be sufficient to prevent the Mortgagor or the loss
payee from becoming a co-insurer.
If
upon
origination of the Mortgage Loan, the related Mortgaged Property was located
in
an area identified in the Federal Register by the Flood Emergency Management
Agency as having special flood hazards (and such flood insurance has been made
available) a flood insurance policy meeting the requirements of the current
guidelines of the Federal Insurance Administration is in effect with a generally
acceptable insurance carrier rated A:VI or better in Best’s in an amount
representing coverage equal to the lesser of (i) the minimum amount required,
under the terms of coverage, to compensate for any damage or loss on a
replacement cost basis (or the unpaid balance of the mortgage if replacement
cost coverage is not available for the type of building insured) and (ii) the
maximum amount of insurance which is available under the Flood Disaster
Protection Act of 1973, as amended. If at any time during the term of the
Mortgage Loan, the Seller determines in accordance with applicable law and
pursuant to the Xxxxxx Xxx Guides that a Mortgaged Property is located in a
special flood hazard area and is not covered by flood insurance or is covered
in
an amount less than the amount required by the Flood Disaster Protection Act
of
1973, as amended, the Seller shall notify the related Mortgagor that the
Mortgagor must obtain such flood insurance coverage, and if said Mortgagor
fails
to obtain the required flood insurance coverage within thirty (30) days after
such notification, the Seller shall immediately force place the required flood
insurance on the Mortgagor’s behalf.
-27-
If
a
Mortgage is secured by a unit in a condominium project, the Seller shall verify
that the coverage required of the owner’s association, including hazard, flood,
liability, and fidelity coverage, is being maintained in accordance with then
current Xxxxxx Mae requirements and shall continue to monitor the continued
maintenance of such coverage.
The
Seller shall cause to be maintained on each Mortgaged Property earthquake or
such other or additional insurance as may be required pursuant to applicable
laws and regulations, or pursuant to the requirements of the applicable private
mortgage guaranty insurer, if any, or as may be required to conform with
Accepted Servicing Practices.
In
the
event that any Purchaser or the Seller shall determine that the Mortgaged
Property should be insured against loss or damage by hazards and risks not
covered by the insurance required to be maintained by the Mortgagor pursuant
to
the terms of the Mortgage, the Seller shall communicate and consult with the
Mortgagor with respect to the need for such insurance and bring to the
Mortgagor’s attention the desirability of protection of the Mortgaged
Property.
All
policies required hereunder shall name the Seller as loss payee and shall be
endorsed with standard or union mortgagee clauses, without contribution, which
shall provide for at least 30 days prior written notice of any cancellation,
reduction in amount or material change in coverage.
The
Seller shall not interfere with the Mortgagor’s freedom of choice in selecting
either his insurance carrier or agent, provided, however, that the Seller shall
not accept any such insurance policies from insurance companies unless such
companies are rated A:VI or better in Best’s and are licensed to do business in
the jurisdiction in which the Mortgaged Property is located. The Seller shall
determine that such policies provide sufficient risk coverage and amounts,
that
they insure the property owner, and that they properly describe the property
address. The Seller shall furnish to the Mortgagor a formal notice of expiration
of any such insurance in sufficient time for the Mortgagor to arrange for
renewal coverage by the expiration date.
-28-
Pursuant
to Section 4(d), any amounts collected by the Seller under any such policies
(other than amounts to be deposited in the Escrow Account and applied to the
restoration or repair of the related Mortgaged Property, or property acquired
in
liquidation of the Mortgage Loan, or to be released to the Mortgagor, in
accordance with the Seller’s normal servicing procedures as specified in Section
4(n)) shall be deposited in the Custodial Account subject to withdrawal pursuant
to Section 4(e).
Notwithstanding
anything set forth in the preceding paragraph, the Seller
agrees
to
indemnify the Purchaser for any claims, losses, damages, penalties, fines,
forfeitures, reasonable legal fees and related costs, judgments, and any other
costs, fees and expenses that the Purchaser may sustain in any way related
to
the failure of the Mortgagor (or the Seller)
to
maintain hazard insurance or flood insurance with respect to the related
Mortgaged Property which complies with the requirements of this
section.
(k) Maintenance
of Mortgage Impairment Insurance.
In the
event that the Seller shall obtain and maintain a blanket policy insuring
against losses arising from fire and hazards covered under extended coverage
on
all of the Mortgage Loans, then, to the extent such policy provides coverage
in
an amount equal to the amount required pursuant to Section 4(j) and otherwise
complies with all other requirements of Section 4(j), it shall conclusively
be
deemed to have satisfied its obligations as set forth in Section 4(j). Any
amounts collected by the Seller under any such policy relating to a Mortgage
Loan shall be deposited in the Custodial Account or Escrow Account subject
to
withdrawal pursuant to Section 4(f). Such policy may contain a deductible
clause, in which case, in the event that there shall not have been maintained
on
the related Mortgaged Property a policy complying with Section 4(j), and there
shall have been a loss which would have been covered by such policy, the Seller
shall deposit in the Custodial Account at the time of such loss the amount
not
otherwise payable under the blanket policy because of such deductible clause,
such amount to deposited from the Seller’s funds, without reimbursement
therefor. Upon request of any Purchaser, the Seller shall cause to be delivered
to such Purchaser a certified true copy of such policy and a statement from
the
insurer thereunder that such policy shall in no event be terminated or
materially modified without thirty (30) days’ prior written notice to such
Purchaser.
(l) Maintenance
of Fidelity Bond and Errors and Omissions Insurance.
The
Seller shall maintain with responsible companies, at its own expense, a blanket
Fidelity Bond and an Errors and Omissions Insurance Policy, with broad coverage
on all officers, employees or other persons acting in any capacity requiring
such persons to handle funds, money, documents or papers relating to the
Mortgage Loans (“Seller
Employees”).
Any
such Fidelity Bond and Errors and Omissions Insurance Policy shall be in the
form of the Mortgage Banker’s Blanket Bond and shall protect and insure the
Seller against losses, including forgery, theft, embezzlement, fraud, errors
and
omissions and negligent acts of such Seller Employees. Such Fidelity Bond and
Errors and Omissions Insurance Policy also shall protect and insure the Seller
against losses in connection with the release or satisfaction of a Mortgage
Loan
without having obtained payment in full of the indebtedness secured thereby.
No
provision of this Section requiring such Fidelity Bond and Errors and Omissions
Insurance Policy shall diminish or relieve the Seller from its duties and
obligations as set forth in this Agreement. The minimum coverage under any
such
bond and insurance policy shall be at least equal to the corresponding amounts
required by Xxxxxx Xxx in the Xxxxxx Mae Guides or by Xxxxxxx Mac in the Xxxxxxx
Mac Guides. Upon the request of the Purchaser, the Seller shall cause to be
delivered to such Purchaser a certified true copy of such fidelity bond and
insurance policy and a statement from the surety and the insurer that such
fidelity bond and insurance policy shall in no event be terminated or materially
modified without thirty (30) days’ prior written notice to the Purchaser.
-29-
(m) Inspections.
The
Seller shall inspect the Mortgaged Property as often as deemed necessary by
the
Seller to assure itself that the value of the Mortgaged Property is being
preserved. In addition, if any Mortgage Loan is more than (i) 45 days delinquent
and the Seller has been unable to communicate with the Mortgagor, or (ii) 60
days delinquent, the Seller immediately shall inspect the Mortgaged Property
and
shall conduct subsequent inspections in accordance with Accepted Servicing
Practices or as may be required by the primary mortgage guaranty insurer. The
Seller shall keep a written report of each such inspection.
(n) Restoration
of Mortgaged Property.
The
Seller need not obtain the approval of the Purchaser prior to releasing any
Insurance Proceeds or Condemnation Proceeds to the Mortgagor to be applied
to
the restoration or repair of the Mortgaged Property if such release is in
accordance with Accepted Servicing Practices. At a minimum, the Seller shall
comply with the following conditions in connection with any such release of
Insurance Proceeds or Condemnation Proceeds:
(i) the
Seller shall receive satisfactory independent verification of completion of
repairs and issuance of any required approvals with respect thereto;
(ii) the
Seller shall take all steps necessary to preserve the priority of the lien
of
the Mortgage, including, but not limited to requiring any such waivers with
respect to mechanics’ and materialmen’s liens as the Seller deems necessary;
(iii) the
Seller shall verify that the Mortgage Loan is not in default; and
(iv) pending
repairs or restoration, the Seller shall place the Insurance Proceeds or
Condemnation Proceeds in the Escrow Account.
If
the
Purchaser is named as an additional loss payee, the Seller is hereby empowered
to endorse any loss draft issued in respect of such a claim in the name of
the
Purchaser.
(o) Maintenance
of PMI and/or LPMI Policy; Claims.
(i) The
Seller shall comply with all provisions of applicable state and federal law
relating to the cancellation of, or collection of premiums with respect to,
PMI
Policies, including, but not limited to, the provisions of the Homeowners
Protection Act of 1998, and all regulations promulgated thereunder, as amended
from time to time. The Seller shall be obligated to make premium payments with
respect to (i) LPMI Policies, to the extent of the LPMI Fee set forth on the
Mortgage Loan Schedule with respect to any LPMI Loans, which shall be paid
out
of the interest portion of the related Monthly Payment or, if a Monthly Payment
is not made, from the Seller’s own funds and (ii) PMI Policies required to be
maintained by the Mortgagor rather than the Purchaser, if the Mortgagor is
required but fails to pay any PMI Policy premium, which shall be paid from
the
Seller’s own funds. Any premium payments made by the Seller from its own funds
pursuant to this Section 4(o)(i) shall be recoverable by the Seller as a
Servicing Advance, subject to the reimbursement provisions of Section 4(e)(iii).
With respect to each Mortgage Loan (other than LPMI Loans) with a loan-to-value
ratio at origination in excess of 80%, the Seller shall, without any cost to
the
Purchaser, maintain or cause the Mortgagor to maintain (to the extent that
the
Mortgage Loan requires the Mortgagor to maintain such insurance) in full force
and effect a PMI Policy, and shall pay or shall cause the Mortgagor to pay
the
premium thereon on a timely basis, until the LTV of such Mortgage Loan is
reduced to 80%. In the event that such PMI Policy shall be terminated, the
Seller shall obtain from another Qualified Insurer a comparable replacement
policy, with a total coverage equal to the remaining coverage of such terminated
PMI Policy, at substantially the same fee level. The Seller shall not take
any
action which would result in noncoverage under any applicable PMI Policy of
any
loss which, but for the actions of the Seller would have been covered
thereunder. In connection with any assumption or substitution agreements entered
into or to be entered into with respect to a Mortgage Loan, the Seller shall
promptly notify the insurer under the related PMI Policy, if any, of such
assumption or substitution of liability in accordance with the terms of such
PMI
Policy and shall take all actions which may be required by such insurer as
a
condition to the continuation of coverage under such PMI Policy. If such PMI
Policy is terminated as a result of such assumption or substitution of
liability, the Seller shall obtain a replacement PMI Policy as provided
above.
-30-
(ii) With
respect to each Mortgage Loan covered by a PMI Policy or LPMI Policy, the Seller
shall take all such actions on behalf of the Purchaser as are necessary to
service, maintain and administer the related Mortgage Loan in accordance with
such Policy and to enforce the rights under such Policy. Except as expressly
set
forth herein, the Seller shall have full authority on behalf of the Purchaser
to
do anything it deems appropriate or desirable in connection with the servicing,
maintenance and administration of such Policy; provided
that
the
Seller shall not take any action to permit any modification or assumption of
a
Mortgage Loan covered by a LPMI or PMI Policy, or take any other action with
respect to such Mortgage Loan, which would result in non-coverage under such
Policy of any loss which, but for actions of the Seller, would have been covered
thereunder. If the Qualified Insurer fails to pay a claim under a LPMI or PMI
Policy solely as a result of a breach by the Seller of its obligations hereunder
or under such Policy, the Seller shall be required to deposit in the Custodial
Account on or prior to the next succeeding Remittance Date an amount equal
to
such unpaid claim from its own funds without any rights to reimbursement from
the Purchaser; provided, that once the Seller has paid the amount of such unpaid
claim and the Purchaser has otherwise fully recovered all amounts due to the
Purchaser with respect to the Mortgage Loan, the Purchaser shall (at the
Seller’s cost and expense) cooperate with the Seller in permitting the Seller to
be subrogated to the rights of the Purchaser with respect to such Mortgage
Loan
to the same extent that the insurer would have been subrogated under the
applicable PMI Policy had such insurer not failed to pay such claim. The Seller
shall cooperate with the Qualified Insurers and shall furnish all reasonable
evidence and information in the possession of the Seller to which the Seller
has
access with respect to the related Mortgage Loan; provided,
however,
notwithstanding anything to the contrary contained in any LPMI Policy or PMI
Policy, the Seller shall not be required to submit any reports to the related
Qualified Insurer until a reporting date that is at least fifteen (15) days
after the Seller has received sufficient loan level information from each
Purchaser to appropriately code its servicing systems in accordance with the
Qualified Insurer’s requirements.
-31-
(iii) In
connection with its activities as servicer, the Seller agrees to prepare or
cause to be prepared and present, on behalf of itself and the Purchaser, claims
to the Qualified Insurer under any PMI Policy or LPMI Policy in a timely fashion
in accordance with the terms of such PMI Policy or LPMI Policy and, in this
regard, to take such action as shall be necessary to permit recovery under
any
PMI Policy or LPMI Policy respecting a defaulted Mortgage Loan. Any amounts
collected by the Seller under any PMI Policy or LPMI Policy shall be deposited
in the Custodial Account pursuant to Section 4(d)(x), subject to withdrawal
pursuant to Section 4(e)(vi).
(p) Title,
Management and Disposition of REO Property.
In the
event that title to any Mortgaged Property is acquired in foreclosure or by
deed
in lieu of foreclosure, the deed or certificate of sale shall be taken in the
name of the Servicer, or if such Mortgage Loan has been included in a
Reconstitution, in the name of the applicable owner or its designee, or in
the
event such owner’s 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 any attorney duly licensed to practice law in the state where the
REO Property is located. The Person or Persons holding such title other than
such owner shall acknowledge in writing that such title is being held as nominee
for the owner’s designee.
The
Seller shall manage, conserve, protect and operate each REO Property for the
Purchaser solely for the purpose of its prompt disposition and sale. The Seller,
either itself or through an agent selected by the Seller, shall manage,
conserve, protect and operate the REO Property in the same manner that it
manages, conserves, protects and operates other foreclosed property for its
own
account, and in the same manner that similar property in the same locality
as
the REO Property is managed. The Seller shall attempt to sell the same (and
may
temporarily rent the same for a period not greater than one year, except as
otherwise provided below) on such terms and conditions as the Seller deems
to be
in the best interest of the Purchaser.
The
Seller shall use its best efforts to dispose of the REO Property as soon as
possible and shall sell such REO Property in any event not later than the end
of
the third taxable year after the year of its acquisition unless (i) (A) a REMIC
election has not been made with respect to the arrangement under which the
Mortgage Loans and the REO Property are held, and (ii) the Seller determines,
and gives an appropriate notice to the Purchaser to such effect, that a longer
period is necessary for the orderly liquidation of such REO Property. If a
period longer than one year is permitted under the foregoing sentence and is
necessary to sell any REO Property, (i) the Seller shall report monthly to
the
Purchaser as to the progress being made in selling such REO Property and (ii)
if, with the written consent of the Purchaser, a purchase money mortgage is
taken in connection with such sale, such purchase money mortgage shall name
the
Seller as mortgagee, and such purchase money mortgage shall not be held pursuant
to this Agreement, but instead a separate participation agreement among the
Seller and Purchaser shall be entered into with respect to such purchase money
mortgage.
-32-
The
Seller shall also maintain on each REO Property fire and hazard insurance with
extended coverage in amount which is at least equal to the maximum insurable
value of the improvements which are a part of such property, liability insurance
and, to the extent required and available under the Flood Disaster Protection
Act of 1973, as amended, flood insurance in the amount required above.
Notwithstanding
anything to the contrary contained in this Section, in connection with a
foreclosure or acceptance of a deed in lieu of foreclosure, in the event the
Seller has reasonable cause to believe that a Mortgaged Property is contaminated
by hazardous or toxic substances or wastes, or if the Purchaser otherwise
requests, an environmental inspection or review of such Mortgaged Property
to be
conducted by a qualified inspector shall be arranged by the Seller. Upon
completion of the inspection, the Seller shall provide the Purchaser with a
written report of such environmental inspection. In the event that the
environmental inspection report indicates that the Mortgaged Property is
contaminated by hazardous or toxic substances or wastes, the Seller shall not
proceed with foreclosure or acceptance of a deed in lieu of foreclosure. In
the
event that the environmental inspection report is inconclusive as to the whether
or not the Mortgaged Property is contaminated by hazardous or toxic substances
or wastes, the Seller shall not, without the prior approval of the Purchaser,
proceed with foreclosure or acceptance of a deed in lieu of foreclosure. In
the
event the Purchaser or its designee directs the Seller not to proceed with
foreclosure or acceptance of a deed in lieu of foreclosure, the Seller shall
be
reimbursed for all Servicing Advances made with respect to the related Mortgaged
Property from the Custodial Account pursuant to Section 4(e)
hereof.
The
disposition of REO Property shall be carried out by the Seller at such price,
and upon such terms and conditions, as the Seller deems to be in the best
interests of the Purchaser. Prior to acceptance by the Seller of an offer to
sell any REO Property, the Seller shall notify the Purchaser or its designee
of
such offer in writing which notification shall set forth all material terms
of
said offer (each a “Notice
of Sale”).
The
Purchaser or its designee shall be deemed to have approved the sale of any
REO
Property unless the Purchaser or its designee notifies the Seller in writing,
within two (2) Business Days after its receipt of the related Notice of Sale,
that it disapproves of the related sale, in which case the Seller shall not
proceed with such sale.
The
proceeds of sale of the REO Property shall be promptly deposited in the
Custodial Account. As soon as practical thereafter the expenses of such sale
shall be paid and the Seller shall reimburse itself for any related unreimbursed
Servicing Advances, unpaid Servicing Fees and unreimbursed advances made
pursuant to Section 5(c), and on the Remittance Date immediately following
the
Principal Prepayment Period in which such sale proceeds are received the net
cash proceeds of such sale remaining in the Custodial Account shall be
distributed to the Purchaser.
-33-
The
Seller shall make advances of all funds necessary for the proper operation,
management and maintenance of the REO Property, including the cost of
maintaining any hazard insurance pursuant to Section 4(j), such advances to
be
reimbursed from the disposition or liquidation proceeds of the REO Property.
The
Seller shall make monthly distributions on each Remittance Date to the Purchaser
of the net cash flow from the REO Property (which shall equal the revenues
from
such REO Property net of the expenses described in this Section and of any
reserves reasonably required from time to time to be maintained to satisfy
anticipated liabilities for such expenses).
(q) Notification
of Adjustments.
With
respect to each ARM Mortgage Loan, the Seller shall adjust the Mortgage Interest
Rate on the related Interest Rate Adjustment Date in compliance with the
requirements of applicable law and the related Mortgage and Mortgage Note.
The
Seller shall execute and deliver any and all necessary notices required under
applicable law and the terms of the related Mortgage Note and Mortgage regarding
the Mortgage Interest Rate adjustments. The Seller shall promptly, upon written
request therefor, deliver to the Purchaser such notifications and any additional
applicable data regarding such adjustments and the methods used to calculate
and
implement such adjustments. Upon the discovery by the Seller or the receipt
of
notice from the Purchaser that the Seller has failed to adjust a Mortgage
Interest Rate in accordance with the terms of the related Mortgage Note, the
Seller shall immediately deposit in the Custodial Account from its own funds
the
amount of any interest loss or deferral caused the Purchaser
thereby.
(r) Reports
of Foreclosures and Abandonments of Mortgaged Property.
Following the foreclosure sale or abandonment of any Mortgaged Property, the
Seller shall report such foreclosure or abandonment as required pursuant to
Section 6050J of the Code.
(s) Waiver
of Prepayment Charges.
Except
as set forth below, the Seller or any designee of the Seller shall not waive
any
prepayment charge with respect to any Mortgage Loan. If the Seller or its
designee fails to collect a prepayment charge at the time of the related
prepayment of any Mortgage Loan subject to such prepayment charge, the Seller
shall pay to the Custodial Account an amount equal to the amount of the
prepayment charge not collected. Notwithstanding the above, the Seller or its
designee may waive a prepayment charge without paying to the Custodial Account
the amount of such prepayment charge only if the related prepayment is not
the
result of a refinancing by the Seller or its designee and such waiver (a)
relates to a defaulted Mortgage Loan or a reasonably foreseeable default, such
waiver is standard and customary in servicing similar mortgage loans to the
Mortgage Loans, and such waiver, in the reasonable judgment of the Seller,
would
maximize recovery of total proceeds from the Mortgage Loan, taking into account
the amount of such prepayment charge and the related Mortgage Loan, or (b)
relates to a prepayment charge the collection of which, in the reasonable
judgment of the Seller, would be a violation of applicable laws.
-34-
(t) Credit
Reporting.
For
each Mortgage Loan, the Seller shall accurately and fully furnish, in accordance
with the Fair Credit Reporting Act and its implementing regulations, accurate
and complete information (e.g. favorable and unfavorable) on its borrower credit
files to each of the following credit repositories: Equifax, Credit Information
Services, Inc., Experian Information Solutions, Inc., and Trans Union, LLC
on a
monthly basis.
(u) Safeguarding
Customer Information.
[Open]
The Seller shall implement and maintain security measures designed to meet
the
objectives of the Interagency Guidelines Establishing Information Security
Standards (the “Guidelines”),
Section 216 of the Fair and Accurate Credit Transactions Act (including its
implementing regulations, “FACTA”),
as
well as any amendments thereto or other applicable regulations regarding
safeguarding information relating to the ownership and servicing of the Mortgage
Loans enacted or released by a regulatory agency having jurisdiction over Xxxxxx
Brothers Bank, FSB (and its United States Affiliates and United States
subsidiaries), the Seller or the party servicing of the Mortgage Loans on behalf
of the Seller. In addition, the Seller represents to the Purchaser that it
has
in place a response program to respond to any incident of unauthorized access
to
Customer Information (as defined in the Guidelines). At all times during the
term of this Agreement, the Seller shall maintain administrative, technical
and
physical safeguards, including proper information disposal procedures, to ensure
the security, confidentiality and integrity of Customer Information, and to
protect such information against any threats or hazards, including, without
limitation, unauthorized access or use. The Seller will periodically (but not
less than annually) review and update its information security
procedures.
The
Seller shall, at the Seller’s sole expense, take appropriate actions, including
such actions as the Purchaser may reasonably request, to address any actual
or
apparent incident of theft or unauthorized access, use or disclosure of any
Customer Information maintained by the Seller, including providing prompt
notification to the Purchaser of any such incident and will, at the Purchaser’s
request, at the Seller’s sole expense, notify the Purchaser’s customers on the
Purchaser’s behalf of any such unauthorized access, use or disclosure. Nothing
in this Section shall limit the Seller’s obligations under Section 9 of this
Agreement.
The
Seller shall promptly provide the Purchaser with information regarding such
information security measures and the results of the testing of such policies,
procedures and controls upon the reasonable request of the Purchaser or its
designee (including any Master Servicer of the Mortgage Loans).
With
respect to any third party provided access to Customer Information in accordance
with this Agreement, the Seller will enter into a written agreement with such
third party requiring safeguarding of Customer Information in a manner no less
restrictive than the Seller’s obligations under this Agreement, and including
those affirmative obligations set forth in this Section and in any other Section
of this Agreement relating to the use or protection of Customer
Information.
The
obligations set forth in this Section shall survive termination of the
Agreement.
(v) Reserved.
-35-
(w) Transfers
of Mortgaged Properties.
The
Seller shall use its best efforts to enforce any “due-on-sale” provision
contained in any Mortgage or Mortgage Note and to deny assumption by the person
to whom the Mortgaged Property has been or is about to be sold whether by
absolute conveyance or by contract of sale, and whether or not the Mortgagor
remains liable on the Mortgage and the Mortgage Note. When the Mortgaged
Property has been conveyed by the Mortgagor, the Seller shall, to the extent
it
has knowledge of such conveyance, exercise its rights to accelerate the maturity
of such Mortgage Loan under the “due-on-sale” clause applicable thereto,
provided, however, that the Seller shall not exercise such rights if prohibited
by law from doing so or if the exercise of such rights would impair or threaten
to impair any recovery under the related PMI Policy or LPMI Policy, if any.
If
the
Seller reasonably believes it is unable under applicable law to enforce such
“due-on-sale” clause, the Seller shall enter into (i) an assumption and
modification agreement with the person to whom such property has been conveyed,
pursuant to which such person becomes liable under the Mortgage Note and the
original Mortgagor remains liable thereon or (ii) in the event the Seller is
unable under applicable law to require that the original Mortgagor remain liable
under the Mortgage Note and the Seller has the prior consent of the primary
mortgage guaranty insurer, a substitution of liability agreement with the
purchaser of the Mortgaged Property pursuant to which the original Mortgagor
is
released from liability and the purchaser of the Mortgaged Property is
substituted as Mortgagor and becomes liable under the Mortgage Note. In
connection with any assumption entered into by the Seller, neither the Mortgage
Interest Rate borne by the related Mortgage Note, the term of the Mortgage
Loan
nor the outstanding principal amount of the Mortgage Loan shall be
changed.
To
the
extent that any Mortgage Loan is assumable, the Seller shall inquire diligently
into the creditworthiness of the proposed transferee, and shall use the
underwriting criteria for approving the credit of the proposed transferee which
are used by Xxxxxx Mae with respect to underwriting mortgage loans of the same
type as the Mortgage Loans. If the credit of the proposed transferee does not
meet such underwriting criteria, the Seller diligently shall, to the extent
permitted by the Mortgage or the Mortgage Note and by applicable law, accelerate
the maturity of the Mortgage Loan.
(x) Satisfaction
of Mortgages and Release of Mortgage Files.
Upon the
payment in full of any Mortgage Loan, or the receipt by the Seller of a
notification that payment in full will be escrowed in a manner customary for
such purposes, the Seller shall notify the Purchaser in the Monthly Remittance
Advice as provided in Section 5(b), and may request the release of any Mortgage
Loan Documents. In connection with any such prepayment in full, the Seller
shall
comply with all applicable laws regarding satisfaction, release or reconveyance
with respect to the Mortgage.
If
the
Seller satisfies or releases a Mortgage without first having obtained payment
in
full of the indebtedness secured by the Mortgage or should the Seller otherwise
prejudice any rights the Purchaser may have under the mortgage instruments,
the
Seller shall deposit into the Custodial Account the entire outstanding principal
balance, plus all accrued interest on such Mortgage Loan, on the day preceding
the Remittance Date in the month following the date of such release. The Seller
shall maintain the Fidelity Bond and Errors and Omissions Insurance Policy
as
provided for in Section 4(l) 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.
-36-
(y) Servicing
Compensation.
As
consideration for servicing the Mortgage Loans subject to this Agreement, the
Seller shall retain the relevant Servicing Fee for each Mortgage Loan remaining
subject to this Agreement during any month or part thereof. Such Servicing
Fee
shall be payable monthly. Additional servicing compensation in the form of
Ancillary Income shall be retained by the Seller and is not required to be
deposited in the Custodial Account. The obligation of the Purchaser to pay
the
Servicing Fee is limited to, and the Servicing Fee is payable solely from,
the
interest portion (including recoveries with respect to interest from Liquidation
Proceeds) of such Monthly Payment collected by the Seller.
The
Seller shall be required to pay all expenses incurred by it in connection with
its servicing activities hereunder and shall not be entitled to reimbursement
thereof except as specifically provided for herein.
(z) Right
to Examine Seller Records.
The
Purchaser shall have the right to examine and audit any and all of the books,
records, or other information of the Seller, whether held by the Seller or
by
another on its behalf, with respect to or concerning this Agreement or the
Mortgage Loans, during business hours or at such other times as may be
reasonable under applicable circumstances, upon reasonable advance notice.
The
Seller shall provide to the Purchaser and any supervisory agents or examiners
representing a state or federal government agency having jurisdiction over
the
Purchaser, including without limitation the OTS, the FDIC and other similar
entities, access to any documentation regarding the Mortgage Loans in the
possession of the Seller that is required by any applicable regulations. Such
access shall be afforded without charge, upon reasonable request, during normal
business hours, at the offices of the Seller and in accordance with any
applicable regulations.
(aa) Use
of
Subservicers and Subcontractors.
The
Seller shall not hire or otherwise utilize the services of any Subservicer
to
fulfill any of the obligations of the Seller as servicer under this Agreement
or
any Reconstitution Agreement unless the Seller complies with the provisions
of
paragraph (i) of this Section. The Seller may hire or otherwise utilize the
services of any Subcontractor, and may 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 only so long as the Seller complies with the provisions of paragraph
(ii) of this Section.
(i) The
Seller shall cause any Subservicer used by the Seller (or by any Subservicer)
for the benefit of the Purchaser and any Depositor to comply with the provisions
of this Section and with Sections 6(r), 29(a)(iv)(3), 29(a)(iv)(5), 5(f), 5(g)
and 9(b) 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 29(a)(iv)(4) 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 5(f), any assessment of compliance and attestation
required to be delivered by such Subservicer under Section 5(g) and any
certification required to be delivered to the Person that will be responsible
for signing the Sarbanes Certification under Section 5(g) as and when required
to be delivered.
-37-
(ii) The
Seller shall promptly upon request provide to the Purchaser and any Depositor
(or any designee of the Depositor, such as a master servicer or administrator)
a
written description (in form and substance satisfactory to the Purchaser and
such Depositor) of the role and function of each Subcontractor utilized by
the
Seller or any Subservicer, specifying (A) the identity of each such
Subcontractor, (B) which (if any) of such Subcontractors are Participating
Entities, and (C) which elements of the Servicing Criteria will be addressed
in
assessments of compliance provided by each Subcontractor identified pursuant
to
clause (B) of this paragraph.
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 (without regard to any percentage thresholds identified in the
instructions thereto), 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 5(g) and 9(b) of this
Agreement to the same extent as if such Subcontractor were the Seller. The
Seller shall be responsible for obtaining from each Subcontractor and delivering
to the Purchaser and any Depositor any assessment of compliance and attestation
required to be delivered by such Subcontractor under Section 5(g), in each
case
as and when required to be delivered.
For
purposes of this Agreement, the Seller shall be deemed to have received payments
on Mortgage Loans immediately upon receipt by a Subservicer of such payments.
Notwithstanding any subservicing agreement or the provisions of this Agreement
relating to agreements or arrangements between the Seller and a Subservicer
or
reference to actions taken through a Subservicer or otherwise, the Seller shall
remain obligated and primarily liable to the Purchaser for servicing and
administering of the Mortgage Loans in accordance with the provisions hereof
without diminution of such obligation or liability by virtue of such
subservicing agreements or arrangements or by virtue of indemnification from
a
Subservicer and to the same extent and under the same terms and conditions
as if
the Seller alone were servicing and administering the Mortgage Loans. All
actions of each Subservicer performed pursuant to the related subservicing
agreement shall be performed as an agent of the Seller with the same force
and
effect as if performed directly by the Seller and the Purchaser shall have
no
obligations, duties or liabilities with respect to any subservicer including
no
obligation, duty or liability of the Purchaser to pay any subservicer’s fees and
expenses. The Seller shall be entitled to enter into any agreement with each
Subservicer for indemnification of the Seller by the Subservicer and nothing
contained in this Agreement shall be deemed to limit or modify such
indemnification.
(bb) REMIC-Related
Requirements.
In the
event that any Mortgage Loan is held by a REMIC, notwithstanding any contrary
provision of this Agreement, the following provisions shall be applicable to
such Mortgage Loan:
(i) Repurchase
of Mortgage Loans. With respect to any Mortgage Loan that is not in default
or
as to which no default is imminent, no repurchase under this Agreement shall
be
made, unless, if so required by the applicable REMIC Documents, the Seller
has
obtained an Opinion of Counsel to the effect that such repurchase will not
(i) result in the imposition of taxes on “prohibited transactions” of such
REMIC (as defined in Section 860F of the Code) or otherwise subject the REMIC
to
tax, or (ii) cause the REMIC to fail to qualify as a REMIC at any
time.
-38-
(ii) Tax
Returns.
(1) With
respect to the Mortgage Loans serviced by the Seller under this Agreement,
the
Seller covenants and agrees that it shall cooperate and provide any and all
information with respect to which it would not be unduly burdensome for the
Seller to obtain, to enable the trustee or other responsible party to perform
all of the following duties: (1) prepare, file and sign all Tax Returns using
a
calendar year as the taxable year for the REMIC and the accrual method of
accounting when and as required by the REMIC Provisions and other applicable
federal income tax laws; (2) make an election, on behalf of the REMIC to be
treated as a REMIC on the Tax Returns of the REMIC for its first taxable year,
in accordance with the REMIC Provisions; (3) prepare and file or cause to be
prepared and filed, and deliver, any and all Tax Returns, information statements
or other filings required to be delivered to any governmental taxing authority,
or to any owner thereunder, pursuant to any applicable federal, state or local
tax law with respect to the REMIC or the certificates issued thereunder and
the
transactions contemplated thereby; (4) cause to be provided to the owner
thereunder such data necessary for their original issue discount computations
and market discount computations with respect to the certificates issued
thereunder for federal income tax purposes as the owner thereunder may
reasonably request from time to time; (5) conduct the affairs of the REMIC
so as
to maintain the status thereof as a REMIC under the REMIC Provisions; (6) not
knowingly or intentionally take any action or omit to take any action that
would
cause the termination of the REMIC status of the REMIC; (7) make any election
required by the REMIC Provisions to treat as “foreclosure property” within the
meaning of Section 860G(a)(8) of the Code all property that the REMIC has
acquired or will acquire that may qualify as such foreclosure property; (8)
cause to be provided notice to the holders of any certificates issued thereunder
of the existence of the restrictions on transfers and exchange provided under
the REMIC Documents; (9) cause to be provided information necessary for the
computation of tax imposed on the transfer of a residual certificate issued
thereunder to a Disqualified Organization, or an agent of a Disqualified
Organization, provided that the reasonable cost of computing and furnishing
such
information may be charged to the person liable for such tax; and (9) in a
timely manner cause to be paid the amount of any and all federal, state and
local taxes imposed on the REMIC or its respective assets or transactions
including, without limitation, (i) “prohibited transaction” penalty taxes as
defined in Section 860F of the Code, if, when and as the same shall be due
and
payable, (ii) any tax on contributions to a REMIC after the closing date of
such REMIC imposed under Section 860G(d) of the Code and (iii) any tax on
“net income from foreclosure property” as defined in Section 860G(c) of the
Code.
-39-
(2) Upon
request, the Seller shall cooperate and provide any and all (i) necessary
information or (ii) helpful information with respect to which it would not
be
unduly burdensome for the Seller to obtain, to enable the trustee or other
responsible party to prepare and file with the Internal Revenue Service Form
8811, “Information Return for Real Estate Mortgage Investment Conduits (REMIC)
and Issuers of Collateralized Debt Obligations” for the REMIC. The trustee or
other responsible party shall sign such returns and is hereby indemnified and
held harmless by the Seller with respect to any tax or liability arising from
the trustee’s or other responsible party’s signing such information returns to
the extent that such tax or liability results from materially untrue information
provided by or on behalf of the Seller or an omission of material information
that should have been provided by or on behalf of the Seller.
(iii) General
Servicing Obligations. The Seller shall sell any REO Property within three
years
after its acquisition by the REMIC unless (i) the Seller applies for an
extension of such three-year period from the Internal Revenue Service pursuant
to the REMIC Provisions and Code Section 856(e)(3), in which event such REO
Property shall be sold within the applicable extension period, or (ii) the
Seller obtains for the Purchaser an Opinion of Counsel, addressed to the
Purchaser and the Seller, to the effect that the holding by the REMIC of such
REO Property subsequent to such three year period will not result in the
imposition of taxes on “prohibited transactions” as defined in Section 860F of
the Code or cause the REMIC to fail to qualify as a REMIC under the REMIC
Provisions or comparable provisions of relevant state laws at any time. The
Seller shall manage, conserve, protect and operate each REO Property for the
Purchaser solely for the purpose of its prompt disposition and sale in a manner
which does not cause such REO Property to fail to qualify as “foreclosure
property” within the meaning of Section 860G(a)(8) or result in the receipt by
the REMIC of any “income from non-permitted assets” within the meaning of
Section 860F(a)(2)(B) of the Code or any “net income from foreclosure property”
which is subject to taxation under Section 860F(a)(1) of the Code. Pursuant
to
its efforts to sell such REO Property, the Seller shall either itself or through
an agent selected by the Seller protect and conserve such REO Property in the
same manner and to such extent as is customary in the locality where such REO
Property is located and may, incident to its conservation and protection of
the
interests of the Purchaser, rent the same, or any part thereof, as the Seller
deems to be in the best interest of the Seller and the Purchaser for the period
prior to the sale of such REO Property; provided, however, that any rent
received or accrued with respect to such REO Property qualifies as “rents from
real property” as defined in Section 856(d) of the Code.
(iv) Additional
Covenants. In addition to the provision set forth in this Section, if a REMIC
election is made with respect to the arrangement under which any of the Mortgage
Loans or REO Properties are held, then, with respect to such Mortgage Loans
and/or REO Properties, and notwithstanding the terms of this Agreement, the
Seller shall not take any action, cause the REMIC to take any action or fail
to
take (or fail to cause to be taken) any action that, under the REMIC Provisions,
if taken or not taken, as the case may be, could (i) endanger the status of
the REMIC as a REMIC or (ii) result in the imposition of a tax upon the
REMIC (including but not limited to the tax on “prohibited transactions” as
defined in Section 860F(a)(2) of the Code or a 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.
-40-
| SECTION 5. |
STATEMENTS
AND PAYMENTS TO THE PURCHASER.
|
(a) Remittances.
On each
Remittance Date the Seller shall remit by wire transfer of immediately available
funds to the Purchaser (a) all amounts deposited in the Custodial Account as
of
the close of business on the last day of the related Due Period (net of charges
against or withdrawals from the Custodial Account pursuant to Section 4(e)),
plus (b) all amounts, if any, which the Seller is obligated to distribute
pursuant to Section 5(c), minus (c) any amounts attributable to Principal
Prepayments received after the applicable Due Period which amounts shall be
remitted on the following Remittance Date, together with any additional interest
required to be deposited in the Custodial Account in connection with such
Principal Prepayment in accordance with Section 4(d)(i), and minus (d) any
amounts attributable to Monthly Payments collected but due on a Due Date or
Dates subsequent to the first day of the month of the Remittance Date, which
amounts shall be remitted on the Remittance Date next succeeding the Due Period
for such amounts.
With
respect to any remittance received by the Purchaser after the first Business
Day
following the Business Day on which such payment was due, the Seller shall
pay
to the Purchaser interest on any such late payment at an annual rate equal
to
the prime rate announced to be in effect as published as the average rate in
the
“Money Rates” section of the Wall Street Journal, adjusted as of the date of
each change, plus three percentage points, but in no event greater than the
maximum amount permitted by applicable law. Such interest shall be deposited
in
the Custodial Account by the Seller on the date such late payment is made and
shall cover the period commencing with the day following such first 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.
(b) Statements
to the Purchaser.
Not
later than the tenth (10th)
calendar day of each month, the Seller shall furnish to the Purchaser or its
designee (i) a monthly remittance advice in the format set forth in Exhibit
I-1
hereto
and a monthly defaulted loan report in format set forth in Exhibit
I-2
hereto
(or in such other format mutually agreed to between the Seller and the
Purchaser) relating to the period ending on the last day of the preceding
calendar month and (ii) all such information required pursuant to clause (i)
above on a magnetic tape or other similar media reasonably acceptable to the
Purchaser.
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.
-41-
Such
obligation of the Seller shall be deemed to have been satisfied to the extent
that substantially comparable information shall be provided by the Seller
pursuant to any requirements of the Internal Revenue Code as from time to time
are in force.
The
Seller shall prepare and file any and all tax returns, information statements
or
other filings (other than Tax Returns pursuant to Section 4(bb)) required to
be
delivered to any governmental taxing authority or to any Purchaser pursuant
to
any applicable law with respect to the Mortgage Loans and the transactions
contemplated hereby. In addition, the Seller shall provide each Purchaser with
such information concerning the Mortgage Loans as is necessary for such
Purchaser to prepare its federal income tax return as any Purchaser may
reasonably request from time to time.
(c) Monthly
Advances by the Seller.
On the
Business Day immediately preceding each Remittance Date, the Seller shall
deposit in the Custodial Account from its own funds an amount equal to all
Monthly Payments (with interest adjusted to the Mortgage Loan Remittance Rate)
which were due on the Mortgage Loans during the applicable Due Period and which
were delinquent at the close of business on the immediately preceding
Determination Date or which were deferred pursuant to Section 4(a). The Seller’s
obligation to make such Monthly Advances as to any Mortgage Loan will continue
through the last Monthly Payment due prior to the payment in full of the
Mortgage Loan, or through the last Remittance Date prior to the Remittance
Date
for the distribution of all Liquidation Proceeds and other payments or
recoveries (including Insurance Proceeds and Condemnation Proceeds) with respect
to the Mortgage Loan.
(d) Real
Estate Owned Reports.
Together with the statement furnished pursuant to Section 5(b), the Seller
shall
furnish to the Purchaser a statement with respect to any REO Property covering
the operation of such REO Property for the previous month and the Seller’s
efforts in connection with the sale of such REO Property and any rental of
such
REO Property incidental to the sale thereof for the previous month. That
statement shall be accompanied by such other information as the Purchaser shall
reasonably request.
(e) Liquidation
Reports.
Upon
the foreclosure sale of any Mortgaged Property or the acquisition thereof by
the
Purchaser pursuant to a deed in lieu of foreclosure, the Seller shall submit
to
the Purchaser a liquidation report with respect to such Mortgaged Property.
In
addition, the Seller shall provide the Purchaser or its designee a report of
Servicing Advances and other expenses in connection with the liquidation of
any
Mortgage Loan.
(f) Annual
Statement as to Compliance.
The
Seller shall deliver no later than March 15 of each calendar year, commencing
in
2008, to the Purchaser and any Depositor a statement of compliance addressed
to
the Purchaser and such Depositor and signed by an authorized officer of the
Seller, to the effect that (i) a review of the Seller’s activities as a servicer
during the immediately preceding calendar year (or applicable portion thereof)
and of its performance under this Agreement and any applicable Reconstitution
Agreement during such period has been made under such officer’s supervision, and
(ii) to the best of such officers’ knowledge, based on such review, the Seller
has fulfilled all of its obligations under this Agreement and any applicable
Reconstitution Agreement in all material respects throughout such calendar
year
(or applicable portion thereof) or, if there has been a failure to fulfill
any
such obligation in any material respect, specifically identifying each such
failure known to such officer and the nature and the status
thereof.
-42-
(g) Assessment
of Servicing Compliance.
(i) On
or
before March 15 of each calendar year, commencing in 2008, the Seller
shall:
(A)
in
connection with each Reconstitution Agreement and, upon request, this Agreement,
deliver to the Purchaser and any Depositor a report regarding the Seller’s
assessment of compliance with the Servicing Criteria during the immediately
preceding calendar year, as required under Rules 13a-18 and 15d-18 of the
Exchange Act and Item 1122 of Regulation AB. Such report shall be addressed
to
the Purchaser and such Depositor and signed by an authorized officer of the
Seller, and shall address each of the Servicing Criteria specified on
Exhibit
K
hereto;
(B)
in
connection with each Reconstitution Agreement and, upon request, this Agreement,
deliver to the Purchaser and any Depositor a report of a registered public
accounting firm that attests to, and reports on, the assessment of compliance
made by the Seller and delivered pursuant to the preceding paragraph. Such
attestation shall be in accordance with Rules 1-02(a)(3) and 2-02(g) of
Regulation S-X under the Securities Act and the Exchange Act;
(C)
in
connection with each Reconstitution Agreement, cause each Subservicer and each
Subcontractor determined by the Seller pursuant to Section 4(aa) to be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB (each, a “Participating
Entity”),
to
deliver to the Purchaser and any Depositor an assessment of compliance and
accountants’ attestation as and when provided in paragraphs (A) and (B) of this
Section 5(g)(i); and
(D)
in
connection with each Reconstitution Agreement, if requested by the Purchaser
or
any Depositor not later than February 1 of the calendar year in which such
certification is to be delivered, deliver to the Purchaser, any Depositor and
any other Person that will be responsible for signing the certification (a
“Sarbanes
Certification”)
required by Rules 13a-14(d) and 15d-14(d) under the Exchange Act (pursuant
to
Section 302 of the Xxxxxxxx-Xxxxx Act of 2002) on behalf of an asset-backed
issuer with respect to a Securitization Transaction a certification in the
form
attached hereto as Exhibit
J
executed
by the senior officer in charge of servicing at the Seller (or AHMS, as
applicable).
The
Seller acknowledges that the parties identified in clause (i)(D) above may
rely
on the certification provided by the Seller pursuant to such clause in signing
a
Sarbanes Certification and filing such with the Commission. Neither the
Purchaser nor any Depositor will request delivery of a certification under
clause (i)(D) above unless a Depositor is required under the Exchange Act to
file an annual report on Form 10-K with respect to an issuing entity whose
asset
pool includes Mortgage Loans.
-43-
(ii) Each
assessment of compliance provided by a Subservicer pursuant to Section
5(g)(i)(A) shall address each of the Servicing Criteria specified on
Exhibit
K
hereto.
An assessment of compliance provided by a Subcontractor pursuant to Section
5(g)(i)(C) need not address any elements of the Servicing Criteria other than
those specified by the Seller pursuant to Section 4(aa).
| SECTION 6. |
REPRESENTATIONS,
WARRANTIES AND AGREEMENTS OF SELLER.
|
The
Seller, as a condition to the consummation of the transactions contemplated
hereby, hereby makes the following representations and warranties to the
Purchaser as of each Closing Date:
(a) Due
Organization and Authority.
The
Seller is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization and the Seller and AHMS
have all licenses necessary to carry on its business as now being conducted
and
each are licensed, qualified and in good standing in each state where a
Mortgaged Property is located if the laws of such state require licensing or
qualification in order to conduct business of the type conducted by such party,
and in any event the Seller and AHMS, as applicable, are in compliance with
the
laws of any such state to the extent necessary to ensure the enforceability
of
the related Mortgage Loan and the servicing of such Mortgage Loan in accordance
with the terms of this Agreement; the Seller has the full corporate power and
authority to execute and deliver this Agreement and to perform in accordance
herewith; the execution, delivery and performance of this Agreement (including
all instruments of transfer to be delivered pursuant to this Agreement) by
the
Seller and the consummation of the transactions contemplated hereby have been
duly and validly authorized; this Agreement evidences the valid, binding and
enforceable obligation of the Seller; and all requisite corporate action has
been taken by the Seller to make this Agreement valid and binding upon the
Seller in accordance with its terms;
(b) Ordinary
Course of Business.
The
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Seller, and the transfer, assignment and
conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to
this Agreement are not subject to the bulk transfer or any similar statutory
provisions in effect in any applicable jurisdiction;
(c) No
Conflicts.
Neither
the execution and delivery of this Agreement, the acquisition of the Mortgage
Loans by the Seller, the sale of the Mortgage Loans to the Purchaser or the
transactions contemplated hereby, nor the fulfillment of or compliance with
the
terms and conditions of this Agreement, will conflict with or result in a breach
of any of the terms, conditions or provisions of the Seller’s charter or by-laws
or any legal restriction or any material agreement or instrument to which the
Seller is now a party or by which it is bound, or constitute a default or result
in an acceleration under any of the foregoing, or result in the violation of
any
law, rule, regulation, order, judgment or decree to which the Seller or its
property is subject, or impair the ability of the Purchaser to realize on the
Mortgage Loans, or impair the value of the Mortgage Loans;
-44-
(d) Ability
to Perform.
The
Seller does not believe, nor does it have any reason or cause to believe, that
it (or AHMS on its behalf) cannot perform each and every covenant contained
in
this Agreement. The Seller is solvent and the sale of the Mortgage Loans will
not cause the Seller to become insolvent. The sale of the Mortgage Loans is
not
undertaken with the intent to hinder, delay or defraud any of the Seller’s
creditors;
(e) No
Litigation Pending.
There
is no action, suit, proceeding or investigation pending or to Seller’s
knowledge, threatened against the Seller which, either in any one instance
or in
the aggregate, could reasonably be expected to result in any material adverse
change in the business, operations, financial condition, properties or assets
of
the Seller, or in any material impairment of the right or ability of the Seller
to carry on its business substantially as now conducted, or in any material
liability on the part of the Seller, or which would draw into question the
validity of this Agreement or the Mortgage Loans or of any action taken or
to be
taken in connection with the obligations of the Seller contemplated herein,
or
which would be likely to impair materially the ability of the Seller to perform
under the terms of this Agreement;
(f) No
Consent Required.
No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Seller
of or
compliance by the Seller with this Agreement or the Mortgage Loans, the delivery
of a portion of the Mortgage Files to the Custodian or the sale of the Mortgage
Loans to the Purchaser or the consummation of the transactions contemplated
by
this Agreement, or if required, such approval has been obtained prior to the
related Closing Date;
(g) Selection
Process.
The
Mortgage Loans were not intentionally selected in a manner so as to affect
adversely the interests of the Purchaser;
(h) No
Untrue Information.
Neither
this Agreement nor any statement, report or other document furnished or to
be
furnished pursuant to this Agreement or in connection with the transactions
contemplated hereby contains any untrue statement of material fact or omits
to
state a material fact necessary to make the statements contained therein not
misleading;
(i) Sale
Treatment.
The
Seller has determined that the disposition of the Mortgage Loans pursuant to
this Agreement will be afforded sale treatment for accounting and tax purposes;
(j) No
Commissions to Third Parties.
The
Seller has not dealt with any broker or agent or anyone else who might be
entitled to a fee or commission in connection with this transaction other than
the Purchaser;
(k) Pool
Characteristics.
The
pool characteristics with respect to the Mortgage Loans included in the related
Mortgage Loan Package are set forth in the related Acknowledgment and Conveyance
Agreement and are true and complete in all material respects.
(l) Financial
Statements.
The
Seller has delivered to the Purchaser financial statements as to its last three
complete fiscal years and any later quarter ended more than 60 days prior to
the
execution of this Agreement. All such financial statements fairly present the
pertinent results of operations and changes in financial position at the end
of
each such period of the Seller and its subsidiaries and have been prepared
in
accordance with generally accepted accounting principles consistently applied
throughout the periods involved, except as set forth in the notes thereto.
There
has been no change in the business, operations, financial condition, properties
or assets of the Seller since the date of the Seller’s financial statements that
would have a material adverse effect on its ability to perform its obligations
under this Agreement;
-45-
(m) Fair
Consideration.
The
consideration received by the Seller upon the sale of the Mortgage Loans under
this Agreement constitutes fair consideration and reasonably equivalent value
for the Mortgage Loans;
(n) MERS.
The
Seller is a member of MERS in good standing, and will comply in all material
respects with the rules and procedures of MERS in connection with the servicing
of the MERS Mortgage Loans for as long as such Mortgage Loans are registered
with MERS;
(o) Seller’s
Origination.
The
Seller’s decision to originate any mortgage loan or to deny any mortgage loan
application is an independent decision based upon the related Underwriting
Guidelines, and is in no way made as a result of Purchaser’s decision to
purchase, or not to purchase, or the price Purchaser may offer to pay for,
any
such mortgage loan, if originated.
(p) Ability
to Service.
AHMS is
an approved seller/servicer of conventional residential mortgage loans for
Xxxxxx Mae and Xxxxxxx Mac, with the facilities, procedures, and experienced
personnel necessary for the sound servicing of mortgage loans of the same type
as the Mortgage Loans. The Seller is in good standing to sell mortgage loans
to
and AHMS is in good standing to service mortgage loans for Xxxxxx Mae and
Xxxxxxx Mac, and no event has occurred, including but not limited to a change
in
insurance coverage, which would make the Seller or AHMS, as applicable, unable
to comply with Xxxxxx Mae and Xxxxxxx Mac eligibility requirements or which
would require notification to either Xxxxxx Mae and Xxxxxxx Mac;
(q) Reasonable
Servicing Fee.
The
Seller acknowledges and agrees that the Servicing Fee, as calculated at the
Servicing Fee Rate, represents reasonable compensation for AHMS’s performance of
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.
(r) Regulation
AB.
(i) The
Seller shall be deemed to represent to the Purchaser and to any Depositor,
as of
the date on which information is first provided to the Purchaser or any
Depositor under Section 29(a)(iv) that, except as disclosed in writing to the
Purchaser or such Depositor prior to such date: (i)
AHMS
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)
AHMS
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 AHMS as servicer
has been
disclosed or reported by the AHMS;
(iv) no
material
changes to AHMS’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 AHMS’s
financial condition that could have a material adverse effect on the performance
by the
AHMS
of the 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 (including AHMS) or any Third-Party
Originator;
and
(vii) there are no affiliations, relationships or transactions relating to
the
Seller,
any
Subservicer (including AHMS)
or any
Third-Party Originator with respect to any Securitization Transaction and any
party thereto identified by the related Depositor of a type described in Item
1119 of Regulation AB.
-46-
(ii) If
so
requested by the Purchaser or any Depositor on any date following the date
on
which information is first provided to the Purchaser or any Depositor under
Section 29(a)(iv), the Seller shall, within five Business Days following such
request, confirm in writing the accuracy of the representations and warranties
set forth in paragraph (i) of this Section 6(r) or, if any such representation
and warranty is not accurate as of the date of such request, provide reasonably
adequate disclosure of the pertinent facts, in writing, to the requesting
party.
| SECTION 7. |
REPRESENTATIONS
AND WARRANTIES REGARDING INDIVIDUAL MORTGAGE
LOANS.
|
As
to
each Mortgage Loan, the Seller hereby represents and warrants to the Purchaser
that as of the related Closing Date:
(a) Mortgage
Loans as Described.
The
information set forth in the related Mortgage Loan Schedule is complete, true
and correct in all material respects;
(b) Payments
Current.
All
payments required to be made up to the related Closing Date on the Mortgage
Loan
under the terms of the Mortgage Note have been made and credited. No payment
required under the Mortgage Loan is delinquent nor has any payment under the
Mortgage Loan been delinquent for 30 days or more in the twelve months preceding
such Closing Date;
(c) No
Outstanding Charges.
There
are no defaults in complying with the terms of the Mortgage, and all taxes,
governmental assessments, insurance premiums, water, sewer and municipal
charges, leasehold payments or ground rents which previously became due and
owing have been paid, or an escrow of funds has been established in an amount
sufficient to pay for every such item which remains unpaid and which has been
assessed but is not yet due and payable. The Seller has not advanced funds,
or
induced, solicited or knowingly received any advance of funds by a party other
than the Mortgagor, directly or indirectly, for the payment of any amount
required under the Mortgage Loan, except for interest accruing from the date
of
the Mortgage Note or date of disbursement of the Mortgage Loan proceeds,
whichever is earlier, to the day which precedes by one month the Due Date of
the
first installment of principal and interest;
-47-
(d) Original
Terms Unmodified.
The
terms of the Mortgage Note and Mortgage have not been impaired, waived, altered
or modified in any respect, except by a written instrument which has been
recorded, if necessary to protect the interests of the Purchaser and which
has
been delivered to the Purchaser or its designee. The substance of any such
waiver, alteration or modification has been approved by the issuer of any
related PMI Policy and the title insurer, if any, to the extent required by
the
policy, and if applicable, its terms are reflected on the related Mortgage
Loan
Schedule. No Mortgagor has been released, in whole or in part, except in
connection with an assumption agreement approved by the issuer of any related
PMI Policy and the title insurer, to the extent required
by the policy, and which assumption agreement is part of the Mortgage Loan
File
delivered to the Purchaser or its designee and the terms of which are reflected
in the related Mortgage Loan Schedule;
(e) No
Defenses.
The
Mortgage Loan is not subject to any right of rescission, set-off, counterclaim
or defense, including without limitation the defense of usury, nor will the
operation of any of the terms of the Mortgage Note or the Mortgage, or the
exercise of any right thereunder, render either the Mortgage Note or the
Mortgage unenforceable, in whole or in part, or subject to any right of
rescission, set-off, counterclaim or defense, including without limitation
the
defense of usury, and no such right of rescission, set-off, counterclaim or
defense has been asserted with respect thereto, and no Mortgagor was a debtor
in
any state or federal bankruptcy or insolvency proceeding at the time the
Mortgage Loan was originated;
(f) Hazard
Insurance.
Pursuant to the terms of the Mortgage, all buildings or other improvements
upon
the Mortgaged Property are insured by a generally acceptable insurer against
loss by fire, hazards of extended coverage and such other hazards as are
customary in the area where the Mortgaged Property is located pursuant to
insurance policies conforming to the requirements of Xxxxxx Mae and Xxxxxxx
Mac.
If upon origination of the Mortgage Loan, the Mortgaged Property was in an
area
identified in the Federal Register by the Federal Emergency Management Agency
as
having special flood hazards a life-of-loan flood insurance policy meeting
the
requirements of the current guidelines of the Federal Flood Insurance
Administration is in effect which policy conforms to the requirements of Xxxxxx
Mae and Xxxxxxx Mac. Such flood insurance shall be with an Approved Flood Policy
Insurer. All individual insurance policies contain a standard mortgagee clause
naming the Seller and its successors and assigns as mortgagee, and all premiums
thereon have been paid. The Mortgage obligates the Mortgagor thereunder to
maintain the hazard insurance policy at the Mortgagor’s cost and expense, and on
the Mortgagor’s failure to do so, authorizes the holder of the Mortgage to
obtain and maintain such insurance at such Mortgagor’s cost and expense, and to
seek reimbursement therefor from the Mortgagor. Where required by state law
or
regulation, the Mortgagor has been given an opportunity to choose the carrier
of
the required hazard insurance, provided the policy is not a “master” or
“blanket” hazard insurance policy covering the common facilities of a planned
unit development. The hazard insurance policy is the valid and binding
obligation of the insurer, is in full force and effect, and will be in full
force and effect and inure to the benefit of the Purchaser upon the consummation
of the transactions contemplated by this Agreement. The Seller has not engaged
in, and has no knowledge of the Mortgagor’s or any subservicer’s having engaged
in, any act or omission which would impair the coverage of any such policy,
the
benefits of the endorsement provided for herein, or the validity and binding
effect of either, including, without limitation, no unlawful fee, commission,
kickback or other unlawful compensation or value of any kind has been or will
be
received, retained or realized by any attorney, firm or other person or entity,
and no such unlawful items have been received, retained or realized by the
Seller;
-48-
(g) Compliance
with Applicable Laws.
Any and
all requirements of any federal, state or local law including, without
limitation, usury, truth-in-lending, real estate settlement procedures,
predatory and abusive lending, consumer credit protection, equal credit
opportunity or disclosure laws applicable to the Mortgage Loan have been
complied with in all material respects, the consummation of the transactions
contemplated hereby will not involve the violation of any such laws or
regulations in any material respect, and the Seller shall maintain in its
possession, available for the Purchaser’s inspection, and shall deliver to the
Purchaser upon demand, evidence of compliance with all such requirements;
(h) No
Satisfaction of Mortgage.
The
Mortgage has not been satisfied, canceled, subordinated or rescinded, in whole
or in part, and the Mortgaged Property has not been released from the lien
of
the Mortgage, in whole or in part, nor has any instrument been executed that
would effect any such release, cancellation, subordination or rescission. The
Seller has not waived the performance by the Mortgagor of any action, if the
Mortgagor’s failure to perform such action would cause the Mortgage Loan to be
in default, nor has the Seller waived any default resulting from any action
or
inaction by the Mortgagor;
(i) Location
and Type of Mortgaged Property.
The
Mortgaged Property is a fee simple property or a Cooperative Loan located in
the
state identified in the related Mortgage Loan Schedule and consists of a single
parcel of real property with a detached single family residence erected thereon,
or a two- to four-family dwelling, or an individual condominium unit in a
low-rise condominium project, or an individual unit in a planned unit
development or a manufactured dwelling permanently affixed to the ground,
provided, however, that any condominium unit or planned unit development shall
conform with the applicable Underwriting Guidelines regarding such dwellings
and
that no residence or dwelling is a mobile home. No portion of the Mortgaged
Property is used for commercial purposes;
(j) Valid
First or Second Lien.
With
respect to any First Lien Mortgage Loan, the related Mortgage is a valid,
subsisting, enforceable and perfected First Lien on the Mortgaged Property
and,
with respect to any Second Lien Mortgage Loan, the related Mortgage is a valid,
subsisting, enforceable and perfected second lien on the Mortgaged Property,
including all buildings on the Mortgaged Property and all installations and
mechanical, electrical, plumbing, heating and air conditioning systems located
in or annexed to such buildings, and all additions, alterations and replacements
made at any time with respect to the foregoing. Such lien is free and clear
of
all adverse claims, liens and encumbrances having priority over the first or
second lien, as applicable, of the Mortgage subject only to:
(1) with
respect to any Second Lien Mortgage Loan, the related First Lien,
(2) the
lien
of current real property taxes and assessments not yet due and payable,
-49-
(3) covenants,
conditions and restrictions, rights of way, easements and other matters of
the
public record as of the date of recording acceptable to mortgage lending
institutions generally and specifically referred to in the lender’s title
insurance policy delivered to the originator of the Mortgage Loan and (i)
referred to or to otherwise considered in the appraisal made for the originator
of the Mortgage Loan or (ii) which do not adversely affect the Appraised Value
of the Mortgaged Property set forth in such appraisal; and
(4) other
matters to which like properties are commonly subject which do not materially
interfere with the benefits of the security intended to be provided by the
Mortgage or the use, enjoyment, value or marketability of the related Mortgaged
Property.
Any
security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates a valid,
subsisting and enforceable (A) first lien and first priority security interest
with
respect to each First Lien Mortgage Loan, or (B) second lien and second priority
security interest with respect to each Second Lien Mortgage Loan, in either
case,
on the
property described therein and the Seller has full right to sell and assign
the
same to the Purchaser. The Mortgaged Property was not, as of the date of
origination of the Mortgage Loan, subject to a mortgage, deed of trust, deed
to
secure debt or other security instrument creating a lien subordinate to the
lien
of the Mortgage. With respect to each Cooperative Loan, each Pledge Agreement
creates a valid, enforceable and subsisting first security interest in the
Cooperative Shares and Proprietary Lease, subject only to (i) the lien of the
related Cooperative for unpaid assessments representing the Mortgagor’s pro rata
share of the Cooperative’s payments for its blanket mortgage, current and future
real property taxes, insurance premiums, maintenance fees and other assessments
to which like collateral is commonly subject and (ii) other matters to which
like collateral is commonly subject which do not materially interfere with
the
benefits of the security intended to be provided by the Pledge Agreement;
provided, however, that the appurtenant Proprietary Lease may be subordinated
or
otherwise subject to the lien of any mortgage on the Project;
(k) Validity
of Mortgage Documents.
The
Mortgage Note and the Mortgage are genuine, and each is the legal, valid and
binding obligation of the maker thereof enforceable in accordance with its
terms. All parties to the Mortgage Note and the Mortgage and any other related
agreement had legal capacity to enter into the Mortgage Loan and to execute
and
deliver the Mortgage Note and the Mortgage and any other related agreement,
and
the Mortgage Note and the Mortgage and any other related agreement have been
duly and properly executed by such parties. The documents, instruments and
agreements submitted for loan underwriting were not falsified and contain no
untrue statement of material fact or omit to state a material fact required
to
be stated therein or necessary to make the information and statements therein
not misleading. No fraud was committed in connection with the origination of
the
Mortgage Loan. The Seller has reviewed all of the documents constituting the
Servicing File and has made such inquiries as it deems necessary to make and
confirm the accuracy of the representations set forth herein. With respect
to
each Cooperative Loan, the Mortgage Note, the Mortgage, the Pledge Agreement,
and related documents are genuine, and each is the legal, valid and binding
obligation of the maker thereof enforceable in accordance with its terms. All
parties to the Mortgage Note, the Mortgage, the Pledge Agreement, the
Proprietary Lease, the Stock Power, Recognition Agreement and the Assignment
of
Proprietary Lease had legal capacity to enter into the Mortgage Loan and to
execute and deliver such documents, and such documents have been duly and
properly executed by such parties;
-50-
(l) Full
Disbursement of Proceeds.
The
Mortgage Loan has been closed and the proceeds of the Mortgage Loan have been
fully disbursed and there is no requirement for future advances thereunder,
and
any and all requirements as to completion of any on-site or off-site improvement
and as to disbursements of any escrow funds therefor have been complied with.
All costs, fees and expenses incurred in making or closing the Mortgage Loan
and
the recording of the Mortgage were paid, and the Mortgagor is not entitled
to
any refund of any amounts paid or due under the Mortgage Note or
Mortgage;
(m) Ownership.
The
Seller is the sole owner of record and holder of the Mortgage Loan. The Mortgage
Loan is not assigned or pledged, and the Seller has good and marketable title
thereto, and has full right to transfer and sell the Mortgage Loan therein
to
the Purchaser free and clear of any encumbrance, equity, participation interest,
lien, pledge, charge, claim or security interest, and has full right and
authority subject to no interest or participation of, or agreement with, any
other party, to sell and assign each Mortgage Loan pursuant to this
Agreement;
(n) Doing
Business.
All
parties which have had any interest in the Mortgage Loan, whether as mortgagee,
assignee, pledgee or otherwise, are (or, during the period in which they held
and disposed of such interest, were) (1) in compliance with any and all
applicable licensing requirements of the laws of the state wherein the Mortgaged
Property is located, and (2) organized under the laws of such state, or (3)
qualified to do business in such state, or (4) federal savings and loan
associations or national banks having principal offices in such state, or (5)
not doing business in such state;
(o) Escrow
Analysis.
If
applicable, with respect to each Mortgage, the Seller has within the last twelve
months (unless such Mortgage was originated within such twelve month period)
analyzed the required Escrow Payments for each Mortgage and adjusted the amount
of such payments so that, assuming all required payments are timely made, any
deficiency will be eliminated on or before the first anniversary of such
analysis, or any overage will be refunded to the Mortgagor, in accordance with
RESPA and any other applicable law;
(p) Title
Insurance.
The
Mortgage Loan is covered by an ALTA lender’s title insurance policy or other
generally acceptable form of policy of insurance acceptable to Xxxxxx Xxx or
Xxxxxxx Mac, issued by a title insurer acceptable to Xxxxxx Mae or Xxxxxxx
Mac
and qualified to do business in the jurisdiction where the Mortgaged Property
is
located, insuring the Seller, its successors and assigns, as to the first
priority lien of the Mortgage with respect to First Lien Mortgage Loans and
as
to the second priority lien of the Mortgage with respect to Second Lien Mortgage
Loans in the original principal amount of the Mortgage Loan (or
with
respect to Negative Amortization Mortgage Loans, the maximum amount of negative
amortization in accordance with the Mortgage),
subject
only to the exceptions contained in clauses (1), (2), (3) and (4) of paragraph
(j) of this Section 7, and with respect to each ARM Mortgage Loan, against
any
loss by reason of the invalidity or unenforceability of the lien resulting
from
the provisions of the Mortgage providing for adjustment to the Mortgage Interest
Rate and Monthly Payment. Where required by state law or regulation, the
Mortgagor has been given the opportunity to choose the carrier of the required
mortgage title insurance. Additionally, such lender’s title insurance policy
affirmatively insures ingress and egress, and against encroachments by or upon
the Mortgaged Property or any interest therein. The Seller is the sole insured
of such lender’s title insurance policy, and such lender’s title insurance
policy is in full force and effect and will be in force and effect upon the
consummation of the transactions contemplated by this Agreement. No claims
have
been made under such lender’s title insurance policy, and no prior holder of the
Mortgage, including the Seller, has done, by act or omission, anything which
would impair the coverage of such lender’s title insurance policy including
without limitation, no unlawful fee, commission, kickback or other unlawful
compensation or value of any kind has been or will be received, retained or
realized by any attorney, firm or other person or entity, and no such unlawful
items have been received, retained or realized by the Seller;
-51-
(q) No
Defaults.
There
is no default, breach, violation or event of acceleration existing under the
Mortgage or the Mortgage Note and no event which, with the passage of time
or
with notice and the expiration of any grace or cure period, would constitute
a
default, breach, violation or event of acceleration, and neither the Seller
nor
its predecessors have waived any default, breach, violation or event of
acceleration. With respect to each Second Lien Mortgage Loan, (i) the First
Lien
is in full force and effect, (ii) there is no default, breach, violation or
event of acceleration existing under such prior mortgage or the related mortgage
note, (iii) there is no event which, with the passage of time or with notice
and
the expiration of any grace or cure period, would constitute a default, breach,
violation or event of acceleration thereunder, and either (A) the prior mortgage
contains a provision which allows or (B) applicable law requires, the mortgagee
under the Second Lien Mortgage Loan to receive notice of, and affords such
mortgagee an opportunity to cure any default by payment in full or otherwise
under the prior mortgage;
(r) No
Mechanics’ Liens.
There
are no mechanics’ or similar liens or claims which have been filed for work,
labor or material (and no rights are outstanding that under the law could give
rise to such liens) affecting the related Mortgaged Property which are or may
be
liens prior to, or equal or coordinate with, the lien of the related
Mortgage;
(s) Location
of Improvements; No Encroachments.
All
improvements which were considered in determining the Appraised Value of the
Mortgaged Property lay wholly within the boundaries and building restriction
lines of the Mortgaged Property and no improvements on adjoining properties
encroach upon the Mortgaged Property. No improvement located on or being part
of
the Mortgaged Property is in violation of any applicable zoning law or
regulation;
(t) Origination;
Payment Terms.
Principal payments on the Mortgage Loan commenced no more than sixty (60) days
after the funds were disbursed in connection with the Mortgage Loans. At the
time the Mortgage Loan was originated, the originator was a mortgagee approved
by the Secretary of Housing and Urban Development pursuant to Sections 203
and
211 of the National Housing Act or a savings and loan association, a savings
bank, a commercial bank or similar banking institution which is supervised
and
examined by a Federal or State authority. The Mortgage Interest Rate is (a)
with
respect to fixed rate Mortgage Loans, the fixed interest rate set forth in
the
Mortgage Note and (b) with respect to ARM Mortgage Loans, adjusted on each
Interest Rate Adjustment Date pursuant to the Mortgage Loan Documents and
rounded as required under Accepted Servicing Practices and subject to the
Mortgage Interest Rate Cap, the Periodic Rate Cap and the Lifetime Rate Cap.
Except with respect to any balloon Mortgage Loan, “interest only” Mortgage Loan
or Negative Amortization Mortgage Loan, each as indicated on the related
Mortgage Loan Schedule, the Mortgage Note is payable in equal monthly
installments of principal and interest, with interest calculated and payable
in
arrears, sufficient to amortize the Mortgage Loan fully by the stated maturity
date, over an original term of not more than thirty years from commencement
of
amortization. The Mortgage Interest Rate, as well as the Lifetime Rate Cap,
the
Periodic Rate Cap and the Mortgage Interest Rate Cap, are as set forth on the
Mortgage Loan Schedule. No ARM Mortgage Loan contains terms whereby the
Mortgagor is permitted to convert the Mortgage Loan to a fixed rate Mortgage
Loan;
-52-
(u) Customary
Provisions.
The
Mortgage contains customary and enforceable provisions such as to render the
rights and remedies of the holder thereof adequate for the realization against
the Mortgaged Property of the benefits of the security provided thereby,
including, (i) in the case of a Mortgage designated as a deed of trust, by
trustee’s sale, and (ii) otherwise by judicial foreclosure or where permitted by
applicable law, non-judicial foreclosure. Upon default by a Mortgagor on a
Mortgage Loan and foreclosure on, or trustee’s sale of, the Mortgaged Property
pursuant to the proper procedures, the holder of the Mortgage Loan will be
able
to deliver good and merchantable title to the Mortgaged Property. There is
no
homestead or other exemption available to the Mortgagor which would interfere
with the right to sell the Mortgaged Property at a trustee’s sale or the right
to foreclose the Mortgage subject to applicable federal and state laws and
judicial precedent with respect to bankruptcy and right of
redemption;
(v) Conformance
with Underwriting Guidelines; Underwriting Methodology.
Each
Mortgage Loan fully conforms to all underwriting guidelines and other
requirements of Xxxxxx Xxx and Xxxxxxx Mac other than with respect to the
original principal amount. The Mortgage Loan was underwritten in accordance
with
the Underwriting Guidelines in effect at the time the Mortgage Loan was
originated. The Mortgage Note and Mortgage are on forms acceptable to
participants in the secondary mortgage market for similar types of Mortgage
Loans. The methodology used in underwriting the extension of credit for each
Mortgage Loan employs objective mathematical principles which relate the
Mortgagor’s income, assets and liabilities to the proposed payment and such
underwriting methodology does not rely on the extent of the Mortgagor’s equity
in the collateral as the principal determining factor in approving such credit
extension. Such underwriting methodology confirmed that at the time of
origination (application/approval) the Mortgagor had a reasonable ability to
make timely payments on the Mortgage Loan;
(w) Occupancy
of the Mortgaged Property.
As of
the related Closing Date the Mortgaged Property will be lawfully occupied under
applicable law. All inspections, licenses and certificates required to be made
or issued with respect to all occupied portions of the Mortgaged Property and,
with respect to the use and occupancy of the same, including but not limited
to
certificates of occupancy and fire underwriting certificates, have been made
or
obtained from the appropriate authorities.
The
Mortgagor represented at the time of origination of the Mortgage Loan that
the
Mortgagor would occupy the Mortgaged Property as the Mortgagor’s primary
residence, if applicable;
-53-
(x) No
Additional Collateral.
The
Mortgage Note is not and has not been secured by any collateral except the
lien
of the corresponding Mortgage and the security interest of any applicable
security agreement or chattel mortgage referred to in (j) above;
(y) Combined
Loan-to-Value Ratio.
No
Mortgage Loan has a CLTV of greater than 100%;
(z) Deeds
of Trust.
In the
event the Mortgage constitutes a deed of trust, a trustee, duly qualified under
applicable law to serve as such, has been properly designated and currently
so
serves and is named in the Mortgage, and no fees or expenses are or will become
payable by the Purchaser to the trustee under the deed of trust, except in
connection with a trustee’s sale after default by the Mortgagor;
(aa) Acceptable
Investment.
The
Seller has no knowledge of any circumstances or conditions with respect to
the
Mortgage, the Mortgaged Property, the Mortgagor or the Mortgagor’s credit
standing that can reasonably be expected to cause private institutional
investors who regularly invest in mortgage loans similar to the Mortgage Loans
to regard the Mortgage Loan as an unacceptable investment, cause the Mortgage
Loan to become delinquent, or adversely affect the value or marketability of
the
Mortgage Loan or cause the Mortgage Loans to prepay during any period materially
faster or slower than mortgage loans originated by the Seller
generally;
(bb) Delivery
of Mortgage Documents.
The
Mortgage Note, the Mortgage, the Assignment of Mortgage and any other documents
required to be delivered by the Seller under this Agreement have been delivered
to the Purchaser or its designee. The Seller is in possession of a complete,
true and accurate Mortgage File in compliance with Exhibit
B,
except
for such documents the originals of which have been delivered to the Purchaser
or its designee;
(cc) Condominiums/Planned
Unit Developments/Manufactured Dwellings.
If the
Mortgaged Property is a condominium unit or a planned unit development (other
than a de minimus planned unit development) such condominium or planned unit
development project meets the related Underwriting Guidelines. With respect
to
each Mortgage Loan secured by a manufactured home: (i) the manufactured home
is
permanently affixed to a foundation which is suitable for the soil conditions
of
the site; (ii) all foundations, both perimeter and interior, have footings
that
are located below the frost line; (iii) any wheels, axles and trailer hitches
are removed from the manufactured home; (iv) the Mortgage Loan is covered under
a standard real estate title insurance policy or attorney’s title opinion or
certificate that identified the manufactured home as part of the real property
and insures or indemnifies against any loss if the manufactured home is
determined not to be part of the real property. In no event shall any Mortgage
Loan be secured by a mobile home;
(dd) Due
on
Sale.
The
Mortgage contains an enforceable provision for the acceleration of the payment
of the unpaid principal balance of the Mortgage Loan in the event that the
Mortgaged Property is sold or transferred without the prior written consent
of
the Mortgagee thereunder;
-54-
(ee) Transfer
of Mortgage Loans.
If the
Mortgage Loan is not a MERS Mortgage Loan, the Assignment of Mortgage is in
recordable form and is acceptable for recording under the laws of the
jurisdiction in which the Mortgaged Property is located;
(ff) No
Buydown Provisions; No Graduated Payments or Contingent
Interests.
The
Mortgage Loan does not contain provisions pursuant to which Monthly Payments
are
paid or partially paid with funds deposited in any separate account established
by the Seller, the Mortgagor or anyone on behalf of the Mortgagor, or paid
by
any source other than the Mortgagor nor does it contain any other similar
provisions currently in effect which may constitute a “buydown” provision. The
Mortgage Loan is not a graduated payment mortgage loan and the Mortgage Loan
does not have a shared appreciation or other contingent interest
feature;
(gg) Consolidation
of Future Advances.
Any
future advances made prior to the related Cut-off Date have been consolidated
with the outstanding principal amount secured by the Mortgage, and the secured
principal amount, as consolidated, bears a single interest rate and single
repayment term. The lien of the Mortgage securing the consolidated principal
amount is expressly
insured as having the lien priority as indicated on the Mortgage Loan Schedule
by a title insurance policy, an endorsement to the policy insuring the
mortgagee’s consolidated interest or by other title evidence acceptable to
Xxxxxx Xxx and Xxxxxxx Mac. The consolidated principal amount does not exceed
the original principal amount of the Mortgage Loan;
(hh) Mortgaged
Property Undamaged.
There
is no proceeding pending or threatened for the total or partial condemnation
of
the Mortgaged Property. The Mortgaged Property is undamaged by waste, fire,
earthquake or earth movement, windstorm, flood, tornado or other casualty so
as
to affect adversely the value of the Mortgaged Property as security for the
Mortgage Loan or the use for which the premises were intended;
(ii) Collection
Practices; Escrow Payments.
The
origination and collection practices used with respect to the Mortgage Loan
have
been in accordance with Accepted Servicing Practices, in all respects in
compliance with all applicable laws and regulations and in all material respects
proper and prudent in the mortgage origination and servicing business. With
respect to escrow deposits and Escrow Payments, all such payments are in the
possession of the Seller and there exist no deficiencies in connection therewith
for which customary arrangements for repayment thereof have not been made.
All
Escrow Payments have been collected in full compliance with state and federal
law. An escrow of funds is not prohibited by applicable law and has been
established in an amount sufficient to pay for every item which remains unpaid
and which has been assessed but is not yet due and payable. No escrow deposits
or Escrow Payments or other charges or payments due the Seller have been
capitalized under the Mortgage or the Mortgage Note. With respect to each ARM
Mortgage Loan, all Mortgage Interest Rate adjustments have been made in strict
compliance with applicable federal law and the terms of the Mortgage Note.
The
index used for the adjustment of the Mortgage Interest Rate on each ARM Mortgage
Loan is the Index. Any interest required to be paid to the Mortgagor pursuant
to
state, federal and local law has been properly paid and credited;
-55-
(jj) Appraisal.
The
Mortgage File contains an appraisal of the related Mortgage Property signed
prior to the approval of the Mortgage Loan application by a Qualified
Appraiser.
(kk) Servicemembers’
Relief Act.
The
Mortgagor has not notified the Seller, and the Seller has no knowledge of any
relief requested or allowed to the Mortgagor under the Servicemembers’ Relief
Act or
any
other federal or state law that would have the effect of suspending or reducing
the Mortgagor's payment obligations under a Mortgage Loan or that would prevent
or restrict the ability of the Seller to commence or continue with the
foreclosure of the Mortgage Loan;
(ll) Environmental
Matters.
The
Mortgaged Property is free from any and all toxic or hazardous substances and
there exists no violation of any local, state or federal environmental law,
rule
or regulation. There is no pending action or proceeding directly involving
any
Mortgaged Property of which the Seller is aware in which compliance with any
environmental law, rule or regulation is an issue; and to the best of the
Seller’s knowledge, nothing further remains to be done to satisfy in full all
requirements of each such law, rule or regulation consisting a prerequisite
to
use and enjoyment of said property;
(mm) No
Construction Loans.
No
Mortgage Loan was made in connection with (i) the construction or rehabilitation
of a Mortgaged Property or (ii) facilitating the trade-in or exchange of a
Mortgaged Property;
(nn) Insurance.
The
Seller has caused or will cause to be performed any and all acts required to
preserve the rights and remedies of the Purchaser in any insurance policies
applicable to the Mortgage Loans including, without limitation, any necessary
notifications of insurers, assignments of policies or interests therein, and
establishments of coinsured, joint loss payee and mortgagee rights in favor
of
the Purchaser; No action, inaction, or event has occurred and no state of fact
exists or has existed that has resulted or will result in the exclusion from,
denial of, or defense to coverage under any applicable pool insurance policy,
special hazard insurance policy, PMI Policy or bankruptcy bond, irrespective
of
the cause of such failure of coverage. In connection with the placement of
any
such insurance, no commission, fee, or other compensation has been or will
be
received by the Seller or any designee of the Seller or any corporation in
which
the Seller or any officer, director, or employee had a financial interest at
the
time of placement of such insurance;
(oo) Regarding
the Mortgagor.
The
Mortgagor is one or more natural persons;
(pp) Simple
Interest Mortgage Loans.
None of
the Mortgage Loans are simple interest Mortgage Loans;
(qq) Single
Premium Credit Life Insurance.
No
Mortgagor was required to purchase any credit life, disability, accident or
health insurance product as a condition of obtaining the extension of credit
evidenced by the Mortgage Loan. No Mortgagor obtained a prepaid single-premium
credit life, disability, accident or health insurance policy in connection
with
the origination of the Mortgage Loan. No proceeds from any Mortgage Loan were
used to purchase single premium credit insurance policies as part of the
origination of, or as a condition to closing, such Mortgage Loan;
-56-
(rr) Mortgagor
Acknowledgment.
All
points, fees and charges (including finance charges), whether or not financed,
assessed, collected or to be collected in connection with the origination and
servicing of each Mortgage Loan has been disclosed in writing to the Mortgagor
in accordance with applicable state and federal law and regulation. Except
in
the case of a Mortgage Loan in an original principal amount of less than $60,000
which would have resulted in an unprofitable origination, no Mortgagor was
charged “points and fees” (whether or not financed) in an amount greater than 5%
of the principal amount of such Mortgage Loan, such 5% limitation is calculated
in accordance with Xxxxxx Mae’s anti-predatory lending requirements as set forth
in the Xxxxxx Mae Guides. The
Mortgagor has executed a statement to the effect that the Mortgagor has received
all disclosure materials required by applicable law with respect to the making
of adjustable rate mortgage loans. The Seller shall maintain such statement
in
the Mortgage File;
(ss) Tax
Service Contract
Except
with respect to the Mortgage Loans set forth on Annex 3 to the related
Acknowledgment and Conveyance Agreement, the Seller has obtained a life of
loan,
transferable real estate tax service contract with an Approved Tax Service
Contract Provider on each Mortgage Loans and such contract is assignable to
the
Purchaser without cost;
(tt) Flood
Certification Contract.
Except
with respect to the Mortgage Loans set forth on Annex 4 to the related
Acknowledgment and Conveyance Agreement, the Seller has obtained a life of
loan,
transferable flood certification contract for each Mortgage Loan with an
Approved Flood Policy Insurer and such contract is assignable to the Purchaser
or the Purchaser’s designee without cost;
(uu) Recordation.
Each
original Mortgage was recorded and, except for those Mortgage Loans subject
to
MERS, all subsequent assignments of the original Mortgage (other than the
assignment to the Purchaser) have been recorded in the appropriate jurisdictions
wherein such recordation is necessary to perfect the lien thereof as against
creditors of the Seller, or is in the process of being recorded;
(vv) FICO
Scores.
The FICO
score of each Mortgage Loan is not less than what is set forth on the related
Mortgage Loan Schedule;
(ww) Prepayment
Premium.
With
respect to any Mortgage Loan that contains a provision permitting imposition
of
a premium upon a prepayment prior to maturity: (i) the prepayment premium is
enforceable and will be enforced by the Seller through the related Transfer
Date, (ii) the prepayment premium is permitted pursuant to federal, state and
local law and (iii) such prepayment premium is accurately set forth on the
Mortgage Loan Schedule. With
respect to any Mortgage Loan that contains a provision permitting imposition
of
a premium upon a prepayment prior to maturity: (i)
prior
to the origination of such Mortgage Loan, the Mortgagor agreed to such premium
in exchange for a monetary benefit, including but not limited to a rate or
fee
reduction, (ii) prior to the origination of such Mortgage Loan, the Mortgagor
was offered the option of obtaining a mortgage loan that did not require payment
of such a premium, (iii) the prepayment premium is disclosed to the borrower
in
the Mortgage Loan Documents pursuant to applicable state and federal law and
(iv) for Mortgage Loans originated on or after September 1, 2004, the duration
of the prepayment period shall not exceed three (3) years from the date of
the
Mortgage Note, unless the Mortgage Loan was modified to reduce the prepayment
period to no more than three (3) years from the date of the Mortgage Note and
the Mortgagor was notified in writing of such reduction in prepayment period,
(v) notwithstanding any state or federal law to the contrary or clause (i)
above, the Seller shall not impose such prepayment premium in any instance
when
the mortgage debt is accelerated as the result of the borrower’s default in
making the loan payments and (vi) the prepayment premium is set forth on the
related Mortgage Loan Schedule;
-57-
(xx) Predatory
Lending Regulations.
No
Mortgage Loan is subject to the requirements of the Home Ownership and Equity
Protection Act of 1994. No Mortgage Loan is classified as a “high cost,”
“threshold,” “covered”, “abusive” or “predatory” loan or a similar loan under
any applicable state, federal or local law (or similarly classified loan using
different terminology under a law imposing heightened regulatory scrutiny or
additional legal liability for residential mortgage loans having high interest
rates, points and/or fees). Each Mortgage Loan is in compliance with the
anti-predatory lending eligibility for purchase requirements of Xxxxxx Mae’s
Selling Guide. Each Mortgage Loan at the time it was made complied in all
material respects with applicable local, state, and federal laws, including,
but
not limited to, all applicable predatory and abusive lending laws. No Mortgage
Loan is classified as “High Cost” or “Covered” as set forth in the current
Standard & Poor’s LEVELS® Glossary;
(yy) Higher
Cost Products.
No
Mortgagor was encouraged or required to select a Mortgage Loan product offered
by the Mortgage Loan’s originator which is a higher cost product designed for
less creditworthy borrowers, unless at the time of the Mortgage Loan’s
origination, such Mortgagor did not qualify taking into account credit history
and debt to income ratios for a lower cost credit product then offered by the
Mortgage Loan’s originator or any affiliate of the Mortgage Loan’s originator.
If, at the time of loan application, the Mortgagor may have qualified for a
lower cost credit product then offered by any mortgage lending Affiliate of
the
Mortgage Loan’s originator, the Mortgage Loan’s originator referred the
Mortgagor’s application to such Affiliate for underwriting
consideration;
(zz) Origination
Practices.
No
error, omission, misrepresentation, negligence, fraud or similar occurrence
with
respect to a Mortgage Loan has taken place on the part of any person including
without limitation the Seller, the Mortgagor, any appraiser, any builder or
developer, or any other party involved in the origination of the Mortgage Loan
or, in the application of any insurance in relation to such Mortgage Loan;
no
predatory or deceptive lending practices or deceptive trade practices,
including, without limitation, the extension of credit without regard to the
ability of the borrower to repay and the extension of credit which has no
apparent benefit to the borrower, were employed in the origination of the
Mortgage Loan. No Mortgagor was a debtor in any state or federal bankruptcy
or
insolvency proceeding at any time within twenty-four months prior to the
origination of the Mortgage Loan, nor has any Mortgagor had a foreclosure
proceeding commenced against such Mortgagor within twenty-four months prior
to
origination of the Mortgage Loan;
(aaa) Texas
Home Equity Loans.
With
respect to any Mortgage Loan which consists of an extension of credit described
in Section 50(a)(6), Article XVI of the Texas Constitution, any and all
requirements of Section 50, Article XVI of the Texas Constitution applicable
to
Texas Home Equity Loans which were in effect at the time of the origination
of
the Mortgage Loan have been complied with. Specifically, without limiting the
generality of the foregoing, any fees paid in connection with such Mortgage
Loan
in order for the Mortgagor to receive a reduced interest rate are not required
to be included in the calculation of the aggregate fees pursuant to Section
50(a)(6)(E) of the Texas Constitution;
-58-
(bbb) Second
Liens.
(1) Either
(a) no consent for the Second Lien Mortgage Loan is required by the holder
of
the related first lien or (b) such consent has been obtained and is contained
in
the Mortgage File;
(2) With
respect to any Second Lien Mortgage Loan, the Seller has not received notice
of:
(a) any proceeding for the total or partial condemnation of any Mortgaged
Property, (b) any subsequent, intervening mortgage, lien, attachment, lis
pendens or other encumbrance affecting any Mortgaged Property or (c) any default
under any mortgage, lien or other encumbrance senior to each
Mortgage;
(3) With
respect to any Second Lien Mortgage Loan, where required or customary in the
jurisdiction in which the Mortgaged Property is located, the original lender
has
filed of record a request for notice of any action by the senior lienholder
under the related First Lien, and the original lender has notified any senior
lienholder in writing of the existence of the Second Lien Mortgage Loan and
requested notification of any action to be taken against the Mortgagor by the
senior lienholder;
(4) No
Second
Lien Mortgage Loan is a “home equity line of credit”; and
(5) As
of the
related Closing Date, the Seller has not received a notice of default of a
First
Lien which has not been cured;
(ccc) No
Prior Rejection.
No
Mortgage Loan has been previously submitted for purchase by the Seller to the
Purchaser and reviewed and rejected by the Purchaser for underwriting reasons;
(ddd) Arbitration.
No
Mortgagor agreed to submit to arbitration to resolve any dispute arising out
of
or relating in any way to the Mortgage Loan transaction. No Mortgage Loan is
subject to mandatory arbitration except when the terms of the arbitration also
contain a waiver provision that provides that in the event of a sale or transfer
of the Mortgage Loan or interest in the Mortgage Loan to Xxxxxx Xxx, the terms
of the arbitration are null and void;
(eee) Balloon
Mortgage Loans.
No
Mortgage Loan is a balloon mortgage loan that has an original stated maturity
of
less than seven (7) years;
(fff) Compliance
with Anti-Money Laundering Laws.
The
Seller has complied with all applicable anti-money laundering laws and
regulations, including without limitation the USA Patriot Act of 2003, and
the
laws and regulations administered by the U.S. Department of Treasury’s Office of
Foreign Assets Control (“OFAC”),
which
prohibit dealings with certain countries, territories, entities and individuals
named in OFAC’s Sanction Programs and on the Specially Designated Nationals and
Blocked Persons List (collectively, the “Anti-Money
Laundering Laws”).
The
Seller has established an anti-money laundering compliance program to the extent
required by the Anti-Money Laundering Laws, has conducted the requisite due
diligence in connection with the origination of each Mortgage Loan for purposes
of the Anti-Money Laundering Laws, including with respect to the legitimacy
of
the applicable Mortgagor and the origin of the assets used by the said Mortgagor
to purchase the property in question, and maintains, and will maintain,
sufficient information to identify the applicable Mortgagor for purposes of
the
Anti-Money Laundering Laws;
-59-
(ggg) REMIC
Status.
The
Mortgage Loan is a qualified mortgage for inclusion in a “real estate mortgage
investment conduit” for federal income tax purposes;
(hhh) Credit
Reporting.
The
Seller has caused to be fully furnished, in accordance with the Fair Credit
Reporting Act and its implementing regulations, accurate and complete
information (i.e., favorable and unfavorable) on its borrower credit files
to
Equifax, Experian, and Trans Union Credit Information Company (three of the
credit repositories), on a monthly basis;
(iii) LTV,
PMI Policy.
With
respect to each Mortgage Loan for which the related Mortgage Loan Schedule
indicates there is a PMI Policy, the excess of the LTV over 75% of the Appraised
Value is and will be insured as to payment defaults by a PMI Policy until the
LTV of such Mortgage Loan is reduced to 80%. With
respect to each Negative Amortization Mortgage Loan, the PMI Policy insures
any
increase in the Stated Principal Balance from the original balance of the
Mortgage Note.
All
provisions of such PMI Policy have been and are being complied with, such policy
is in full force and effect, and all premiums due thereunder have been paid.
No
action, inaction, or event has occurred and no state of facts exists that has,
or will result in the exclusion from, denial of, or defense to coverage. Any
Mortgage Loan subject to a PMI Policy obligates the Mortgagor thereunder to
maintain
the PMI Policy and to pay all premiums and charges in connection
therewith;
(jjj) Negative
Amortization Mortgage Loans.
Each
Negative Amortization Mortgage Loan is payable each month in monthly
installments of principal and/or interest, as applicable, in accordance with
the
terms of the related Mortgage Note, as indicated on the related Mortgage Loan
Schedule. With respect to each Negative Amortization Mortgage Loan, during
the
term of the Mortgage Loan, the unpaid principal balance of the Mortgage Loan
shall not exceed 120% of the initial approved principal balance of the Mortgage
Loan;
(kkk) Calculation
of Debt-to-Income.
For all
Mortgage Loans which provide for deferred payments of principal or interest,
and
for subprime mortgage loans which provide for a variable rate of interest in
which the first interest rate adjustment occurs less than five (5) years after
the origination date, the debt-to-income ratio used to qualify the Mortgage
Loans under the Seller’s Underwriting Guidelines was calculated using the
fully-indexed rate, assuming a fully-amortizing payment schedule, and was based
upon the initial loan amount plus any balance increase which might accrue from
a
negative amortization provision.
-60-
(lll) Imaged
Documents.
Any
document to be included in the Mortgage File that is delivered as an imaged
document (and not accompanied by the original underlying document) represents
a
true, complete, and correct copy of the original document in all respects,
including, but not limited to, all signatures conforming with signatures
contained in the original document, no information having been added or deleted,
and no imaged document having been manipulated or altered in any manner. Each
imaged document is clear and legible in all material respects, including, but
not limited to, accurate reproductions of photographs. No original documents
have been or will be altered in any material manner.
The
destruction by the Seller of any original document underlying an imaged document
or the inability of Seller to produce a copy of such original document upon
request shall not cause (i) any material delay in the enforcement of the
Mortgage Loan, (ii) any inability to collect all amounts due under the Mortgage
Loan, including without limitation, in connection with a foreclosure or other
sale of the Mortgaged Property, (iii) private institutional investors to regard
the Mortgage Loan as an unacceptable investment or adversely affect the value
or
marketability of the Mortgage Loan, or (iv) any claims from holders of
mortgage-backed securities collateralized by the Mortgage Loan;
(mmm) FEMA
Designations.
Except
for a “Certified Mortgaged Property” (as defined below), no Mortgaged Property
(i) is in a zip code declared by the FEMA as a federal disaster area and (ii)
has been declared by FEMA as being an “Individual Assistance” property or
“Category 1” property, or such similar term(s) or classification(s) that may be
used by FEMA from time to time (a “FEMA
Property”).
A
“Certified
Mortgaged Property”
means
a
FEMA Property for which the Purchaser receives from the Seller a certified
property inspection acceptable to the Purchaser that evidences that such FEMA
Property has not been materially damaged at any time prior to the date of such
report; and
(nnn) Cooperative
Loans.
With
respect to each Cooperative Loan: (i) The Cooperative Shares are held by a
person as a tenant-stockholder in a Cooperative. Each original UCC financing
statement, continuation statement or other governmental filing or recordation
necessary to create or preserve the perfection and priority of the first lien
and security interest in the Cooperative Loan and Proprietary Lease has been
timely and properly made. Any security agreement, chattel mortgage or equivalent
document related to the Cooperative Loan and delivered to Purchaser or its
designee establishes in Purchaser a valid and subsisting perfected first lien
on
and security interest in the Mortgaged Property described therein, and Purchaser
has full right to sell and assign the same; (ii) (a) The term of the related
Proprietary Lease is not less than the term of the Cooperative Loan; (b) there
is no prohibition in any Proprietary Lease against pledging the Cooperative
Shares or assigning the Proprietary Lease; (c) the Cooperative has been created
and exists in full compliance with the requirements for residential cooperatives
in the jurisdiction in which the Project is located and qualifies as a
cooperative housing corporation under Section 210 of the Code; and (d) the
Cooperative has good and marketable title to the Project, and owns the Project
in fee simple or under a leasehold; such title is free and clear of any adverse
liens or encumbrances, except the lien of any blanket mortgage; and (iii) the
Seller has the right under the terms of the Mortgage Note, Pledge Agreement
and
Recognition Agreement to pay any maintenance charges or assessments owed by
the
Mortgagor.
-61-
| SECTION 8. |
REMEDIES
FOR BREACH OF REPRESENTATIONS AND WARRANTIES; ADDITIONAL REPURCHASE
OBLIGATIONS.
|
(a) It
is
understood and agreed that the representations and warranties set forth in
Sections 6 and 7 shall survive the sale of the Mortgage Loans to the Purchaser
and the delivery of the Mortgage Loan Documents to the Purchaser and shall
inure
to the benefit of the Purchaser, notwithstanding any restrictive or qualified
endorsement on any Mortgage Note or Assignment of Mortgage or the examination
or
failure to examine 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 therein or which materially and adversely affects
the
interests of Purchaser in the related Mortgage Loan in the case of a
representation and warranty relating to a particular Mortgage Loan (in the
case
of any of the foregoing, a “Breach”),
the
party discovering such Breach shall give prompt written notice to the other;
provided, notwithstanding the foregoing, that any breach of clause (g) of
Section 7 shall be a Breach.
(b) With
respect to those representations and warranties which are made to the Seller’s
knowledge in clauses (f), (aa) and (kk) of Section 7, if it is discovered by
the
Seller or the Purchaser that the substance of such representation and warranty
is inaccurate and such inaccuracy materially and adversely affects the value
of
the related Mortgage Loan or the interest of the Purchaser (or which materially
and adversely affects the value of a Mortgage Loan or the interests of the
Purchaser in the related Mortgage Loan in the case of a representation and
warranty relating to a particular Mortgage Loan), notwithstanding the Seller’s
lack of knowledge with respect to the substance of such representation and
warranty, such inaccuracy shall be deemed a breach of the applicable
representation and warranty.
Upon
discovery by either party of a Breach of any representation or warranty, the
party discovering such Breach shall give prompt written notice to the other
party. Within 60 days of the earlier of either discovery by or notice to the
Seller of any Breach of a representation or warranty, the Seller shall use
its
best efforts promptly to cure such Breach in all material respects and, if
such
Breach cannot be cured, the Seller shall, at the Purchaser’s option, repurchase
such Mortgage Loan at the Repurchase Price. Notwithstanding
the above sentence, within 60 days of the earlier of either discovery by, or
notice to, the Seller of any breach of the “Single Premium Credit Life
Insurance”, “Predatory Lending Regulations”, “Texas Home Equity Loans”,
“Prepayment Premium” or “Credit Reporting” representations or warranties set
forth in Section 7, the Seller shall repurchase such Mortgage Loan at the
Repurchase Price. In
the
event that a Breach shall involve any representation or warranty set forth
in
Sections 6(a) through 6(q), and such Breach cannot be cured within 60 days
of
the earlier of either discovery by or notice to the Seller of such Breach,
all
of the Mortgage Loans shall, at the Purchaser’s option, be repurchased by the
Seller at the Repurchase Price.
Any
repurchase of a Mortgage Loan or Loans pursuant to the foregoing provisions
of
this Section 8 shall be accomplished by deposit in the Custodial Account of
the amount of the Repurchase Price for distribution to Purchaser on the next
scheduled Remittance Date, after deducting therefrom any amount received in
respect of such repurchased Mortgage Loan or Loans and being held in the
Custodial Account for future distribution.
-62-
At
the
time of repurchase, the Purchaser and the Seller shall arrange for the
reassignment of the Deleted Mortgage Loan to the Seller and the delivery to
the
Seller of any documents held by the Custodian relating to the Deleted Mortgage
Loan. In the event of a repurchase, the Seller shall, simultaneously with such
reassignment, give written notice to the Purchaser that such repurchase has
taken place, and the Mortgage Loan Schedule shall be deemed amended to reflect
the withdrawal of the Deleted Mortgage Loan from this Agreement. For the month
of repurchase, distributions to Purchaser shall include the Monthly Payment
due
on any Deleted Mortgage Loan in the month of repurchase, and the Seller shall
thereafter be entitled to retain all amounts subsequently received by the Seller
in respect of such Deleted Mortgage Loan.
In
addition to such repurchase obligation, the Seller shall indemnify the Purchaser
and hold it harmless against any losses, damages, penalties, fines, forfeitures,
including without limitation, reasonable and necessary legal fees and related
costs, judgments, and other costs and expenses resulting from any claim, demand,
defense or assertion based on or grounded upon, or resulting from, a Breach
of
the Seller representations and warranties contained in this Agreement. It is
understood and agreed that the obligations of the Seller set forth in this
Section 8 to cure or repurchase a defective Mortgage Loan and to indemnify
the
Purchaser as provided in this Section 8 constitute the sole remedies of the
Purchaser respecting a Breach of the foregoing representations and
warranties.
Any
cause
of action against the Seller relating to or arising out of the Breach of any
representations and warranties made in Sections 6 and 7 shall accrue as to
any
Mortgage Loan upon (i) discovery of such Breach by the Purchaser or notice
thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure
such
Breach within the applicable cure period or repurchase such Mortgage Loan as
specified above, and (iii) demand upon the Seller by the Purchaser for
compliance with this Agreement.
(c) With
respect to any Mortgage Loan, if the related Mortgagor is 30 or more days
delinquent with respect to the Mortgage Loan’s first three Monthly Payments due
to the Purchaser, the Seller shall, upon receipt of notice from the Purchaser,
promptly repurchase such Mortgage Loan from the Purchaser in accordance with
Section 8(a) hereof; provided, that no right to cure set forth therein shall
apply.
(d) From
the
related Closing Date to a period not to exceed 30 days after the such Closing
Date, the Purchaser shall have the right to review the Mortgage Files and obtain
BPOs on the Mortgaged Properties relating to the Mortgage Loans purchased on
such Closing Date, with the results of such Mortgage File and BPO reviews to
be
communicated to the Seller for a period up to 30 days after such Closing Date.
In addition, the Purchaser shall have the right to reject any Mortgage Loan
which in the Purchaser’s sole determination (i) fails to conform to the related
Underwriting Guidelines or prudent secondary market underwriting guidelines
for
similar Mortgage Loans, (ii) is not an acceptable credit risk, (iii) was
underwritten without verification of the borrower’s income and assets and there
is no credit report or credit score in the Mortgage File or (iv) the value
of
the Mortgaged Property pursuant to any BPO obtained by the Purchaser is less
than 85% or the lesser of (A) the original appraised value of the Mortgaged
Property or (B) the purchase price of the Mortgaged Property as of the date
of
origination. In the event that the Purchaser so rejects any Mortgage Loan,
the
Seller shall repurchase the rejected Mortgage Loan at the Repurchase Price
in
the manner prescribed in Section 8(a) upon receipt of notice from the Purchaser
of the rejection of such Mortgage Loan. Any rejected Mortgage Loan shall be
removed from the terms of this Agreement. The Seller shall make available all
files required by Purchaser in order to complete its review. Any review
performed by the Purchaser prior to the Closing Date does not limit the
Purchaser’s rights or the Seller’s obligations under this Agreement thereafter.
Notwithstanding that a Mortgage Loan is underwritten pursuant to the related
Underwriting Guidelines, if a Mortgage Loan is underwritten without verification
of the borrower’s income and assets and there is no credit report and credit
score, the Purchaser has the right to reject such Mortgage Loan. The Seller
shall make available all credit files in order for the Purchaser to complete
a
full data verification review, which includes but is not limited to capturing
all CRA/HMDA required data fields.
-63-
| SECTION 9. |
INDEMNIFICATION
|
(a) The
Seller agrees to indemnify the Purchaser and hold it harmless from and against
any and all claims, losses, damages, penalties, fines, forfeitures, reasonable
legal fees and related costs, judgments, and any other costs, fees and expenses
reasonably sustained by the Purchaser to (i) any act or omission on the part
of
the Seller or any other person or entity in the origination, receiving or
processing any Mortgage Loan, (ii) any assertion based on, grounded upon, or
resulting from a Breach of any of the Seller’s representations and warranties
contained herein, (iii) the failure of the Seller to perform in any way its
duties and service the Mortgage Loans in strict compliance with the terms of
this Agreement or any Reconstitution Agreement entered into pursuant to Section
29(a). The Seller shall promptly notify the Purchaser if it receives notice
of a
claim made by a third party with respect to this Agreement or any Reconstitution
Agreement or the Mortgage Loans, shall promptly notify Xxxxxx Mae, Xxxxxx Xxx,
Xxxxxxx Mac, or the trustee with respect to any claim made by a third party
with
respect to any Reconstitution Agreement, as applicable, assume (with the prior
written consent of the Purchaser) the defense of any such claim and pay all
expenses in connection therewith, including reasonable 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 reasonable written instructions received from the Purchaser in connection
with such claim. The Seller agrees that it will not enter into any settlement
of
any such claim without the consent of the Purchaser unless such settlement
includes an unconditional release of the Purchaser from all liability that
is
the subject matter of such claim. In addition to the obligations of the Seller
set forth in this Section 9, the Purchaser may pursue any and all remedies
otherwise available at law or in equity, including, but not limited to, the
right to seek damages. The provisions of this Section 9 shall survive
termination of this Agreement. The Purchaser promptly shall reimburse the Seller
for all amounts advanced by it pursuant to the preceding sentence except when
the claim is in any way related to the Seller’s indemnification pursuant to
Section 8(b), or the failure of the Seller to service and administer the
Mortgage Loans in strict compliance with the terms of this Agreement or any
Reconstitution Agreement.
-64-
(b) The
Seller
shall
indemnify the Purchaser, each affiliate of the Purchaser, and each of the
following parties participating
in a Securitization Transaction: each
sponsor and issuing entity; each Person responsible for the preparation,
execution or filing of any report required to be filed with the Commission
with
respect to such Securitization Transaction, or for execution of a certification
pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect
to such Securitization Transaction; each broker dealer acting as underwriter,
placement agent or initial purchaser,
each
Person who controls any of such parties or the Depositor (within
the meaning of Section 15 of the Securities Act and Section 20 of the Exchange
Act);
and the
respective present and former directors, officers, employees and agents of
each
of the foregoing and of the Depositor, and shall hold each of them harmless
from
and against any losses, damages, penalties, fines, forfeitures, legal fees
and
expenses and related costs, judgments, and any other costs, fees and expenses
that any of them may sustain arising out of or based upon:
(i) (1)
any
untrue statement of a material fact contained or alleged to be contained in
any
information, report, certification, accountants’ letter or other
material
provided
under
this Agreement
by or on
behalf of the Seller,
or provided in written or electronic form under this Agreement by or on behalf
of any Subservicer, Subcontractor or Third-Party Originator (collectively,
the
“Seller Information”),
or (2)
the omission or alleged omission to state in the Seller
Information a material fact required to be stated in the Seller
Information or necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided,
by way of clarification,
that
clause (2) of this paragraph shall be construed solely by reference to the
Seller
Information and not to any other information communicated in connection with
a
sale or purchase of securities, without regard to whether the Seller
Information or any portion thereof is presented together with or separately
from
such other information;
(ii) any
failure by the Seller,
any
Subservicer, any Subcontractor or any Third-Party
Originator to deliver any information, report, certification, accountants’
letter or other material when and as required under this Agreement, including
any failure by the Seller to identify pursuant to Section 4(aa)(ii) 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 6(r)(i) or in a writing
furnished pursuant to Section 6(r)(ii) and made as of a date prior to the
closing date of the related Securitization Transaction, to the extent that
such
breach is not cured by such closing date, or any breach by the Seller
of
a
representation or warranty in a writing furnished pursuant to Section 6(r)(ii)
to the extent made as of a date subsequent to such closing date; or
(iv)
any
breach of the Seller’s or AHMS’ obligations under Section 5(g)(D) or any
material misstatement or omission, negligence, bad faith or willful misconduct
of the Seller or AHMS in connection therewith. If the indemnification provided
for in the preceding sentence is unavailable or insufficient to hold harmless
any indemnified party, then the Seller agrees that it shall contribute to the
amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities of such indemnified party in such proportion
as
is appropriate to reflect the relative fault of such indemnified party, on
the
one hand, and the Seller, on the other, in connection with a breach of the
Seller’s obligations under this paragraph or any material misstatement or
omission, negligence, bad faith or willful misconduct of the Seller in
connection therewith.
-65-
In
the
case of any failure of performance described in clause (ii) of this Section
9(b), the Seller shall promptly reimburse the Purchaser, any Depositor, as
applicable, and each Person responsible for the preparation, execution or filing
of any report required to be filed with the Commission with respect to such
Securitization Transaction, or for execution of a certification pursuant to
Rule
13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to such
Securitization Transaction, for all costs reasonably incurred by each such
party
in order to obtain the information,
report, certification, accountants’ letter or other material not delivered as
required by the Seller,
any
Subservicer, any Subcontractor or any Third-Party
Originator.
| SECTION 10. |
CLOSING.
|
Each
closing for the purchase and sale of Mortgage Loans hereunder shall take place
on the related Closing Date. At the Purchaser’s option, the closing shall be
either: by telephone, confirmed by letter or wire as the parties shall agree;
or
conducted in person, at such place as the parties shall agree.
Each
closing for a Mortgage Loan Package shall be subject to each of the following
conditions:
(a) No
later
than the date set forth in the related Purchase Price and Terms Agreement,
the
Seller shall deliver to the Purchaser a Mortgage Loan Schedule with respect
to
the Mortgage Loans to be purchased and sold on such date;
(b) All
of
the representations and warranties of the Seller under this Agreement shall
be
true and correct as of the related Closing Date and no event shall have occurred
which, with notice or the passage of time, would constitute an Event of Default
under this Agreement;
(c) The
Purchaser shall have received, or the Purchaser’s attorneys shall have received
in escrow, all closing documents as specified in Section 11 of this Agreement,
in such forms as are agreed upon and acceptable to the Purchaser, duly executed
by all signatories other than the Purchaser as required pursuant to the
respective terms thereof;
(d) The
Seller shall have delivered and released to the Custodian on or prior to the
related Closing Date all documents required pursuant to the Custodial
Agreement;
(e) The
Seller
shall not have experienced any Material Adverse Change. For the purposes of
this
Section, “Material
Adverse Change”
shall
mean, (i) a material adverse change in, or a material adverse effect upon,
the
operations, business, properties, condition (financial or otherwise) or
prospects of the Seller; (ii) a material impairment of the ability of the
Seller, to perform under this Agreement or any related agreements (the
"Operative
Agreements");
or
(iii) a material adverse effect upon the legality, validity, binding effect
or
enforceability of any Operative Agreement against the Seller;
and
-66-
(f) all
other
terms and conditions of this Agreement and the related Purchase Price and Terms
Agreement shall have been complied with.
Subject
to the foregoing conditions, the Purchaser shall pay to the Seller on the
related Closing Date the Purchase Price, plus accrued interest pursuant to
Section 3 of this Agreement, plus the costs specified in Section 13 by wire
transfer of immediately available funds to the account designated by the
Seller.
| SECTION 11. |
CLOSING
DOCUMENTS.
|
(a) The
closing documents to be delivered on the initial Closing Date shall consist
of
fully executed originals of the following documents, as well as the documents
referred to in Section 11(b):
(i) this
Agreement;
(ii) Custodial
Account Letter Agreement;
(iii) Escrow
Account Letter Agreement;
(iv) an
Officer’s Certificate, in the form of Exhibit
C
hereto,
including all attachments thereto; and
(v) an
Opinion of Counsel of the Seller, in the form of Exhibit
D
hereto.
(b) The
closing documents for the Mortgage Loans to be purchased on each Closing Date
under this Agreement (including the initial Closing Date) shall consist of
fully
executed originals of the following documents:
(i) the
related Purchase Price and Terms Agreement;
(ii) the
related Acknowledgment and Conveyance Agreement, including all annexes
thereto;
(iii) each
of
the documents required to be delivered by the Seller pursuant to Section 2(c)
hereof;
(iv) an
assignment and assumption of the Custodial Agreement
(v) an
initial certification of the Custodian;
(vi) if
applicable, a Security Release Certification, in the form of Exhibit
F
hereto,
as requested by the Purchaser, if any of the Mortgage Loans have at any time
been subject to any security interest, pledge or hypothecation for the benefit
of such person;
-67-
(vii) 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;
(viii) upon
request by the Purchaser, an Officer’s Certificate, in the form of Exhibit
C
hereto,
including all attachments thereto; and
(ix) upon
request by the Purchaser, an Opinion of Counsel to the Seller, in the form
of
Exhibit
D
hereto.
The
Seller shall bear the risk of loss of the Closing Documents until such time
as
they are received by the Purchaser or its attorneys.
| SECTION 12. |
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, 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 having (i) a net worth of at least $25,000,000,
(ii) whose Custodial Account and Escrow Account deposits are insured by the
FDIC
through the DIF, and (iii) which is a Xxxxxx Mae- and Xxxxxxx Mac-approved
servicer in good standing.
| SECTION 13. |
COSTS.
|
The
Purchaser shall pay any commissions due its salesmen and the legal fees and
expenses of its attorneys. All other costs and expenses incurred in connection
with the transfer and delivery of the Mortgage Loans, including fees for the
preparation and tracking of Assignments of Mortgage, fees for title policy
endorsements and continuations and the Seller’s attorney’s fees, shall be paid
by the Seller. On the related Closing Date, the Seller shall pay to the
Purchaser a fee of $25.00 per Mortgage Loan with respect to Mortgage Loans
which
are not MERS Mortgage Loans for the initial recordation of the Assignments
of
Mortgage (the “Assignment
Fees”),
which
Assignment Fees shall be deducted from the actual Purchase Price proceeds paid
to the Seller on the such Closing Date. In addition, on the related Closing
Date, the Purchaser shall deduct from the Purchase Price $75.00 for each
Mortgage Loan missing a tax service contract as set forth on Annex 3 to the
Acknowledgment and Conveyance Agreement and $10.00 for each Mortgage Loan
missing a flood certification contract as set forth on Annex 4 to the
Acknowledgment and Conveyance Agreement.
-68-
| SECTION 14. |
PROTECTION
OF CONFIDENTIAL INFORMATION.
|
The
Seller shall keep confidential and shall not divulge to any party, without
the
Purchaser’s prior written consent, the Purchase Price paid by the Purchaser for
any Mortgage Loan or Mortgage Loan Package, except to the extent that it is
appropriate for the Seller to do so in working with legal counsel, auditors,
taxing authorities or other governmental agencies.
The
Seller hereby acknowledges that the Purchaser is subject to certain privacy
and
information security laws and regulations pursuant to which the Purchaser is
required to obtain certain undertakings from the Seller with regard to the
privacy, use and protection of nonpublic personal financial information of
the
Mortgagors and certain other parties. Therefore, notwithstanding anything to
the
contrary contained in this Agreement, the Seller agrees that (a) it shall keep
all Customer Information strictly confidential and shall not disclose or use
any
Customer Information except to the extent necessary to carry out its obligations
under this Agreement and for no other purpose and (b) it shall not disclose
Customer Information to any third party, including, without limitation, its
third party service providers, without the prior consent of the Purchaser and
an
agreement in writing from the third party to use or disclose such Customer
Information only to the extent necessary to carry out the Seller 's obligations
under this Agreement and for no other purposes; provided, however, that such
prior consent shall have been deemed to have been given with respect to
Subservicers and Subcontractors engaged in accordance with the terms of this
Agreement. At any time at the request and option of the Purchaser and in the
event of termination or expiration of this Agreement (or any part thereof),
the
Seller agrees to promptly return to the Purchaser all Customer Information.
The
obligations set forth in this Section shall survive termination of this
Agreement.
| SECTION 15. |
NOTICES.
|
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if mailed, by registered or certified mail,
return receipt requested, or, if by other means, when received by the other
party at the address shown on the first page hereof, 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 16. |
SEVERABILITY
CLAUSE.
|
Any
part,
provision, representation or warranty of this Agreement that is prohibited
or
that 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 that 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 that 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 as close as possible to the economic effect of this
Agreement, without regard to such invalidity.
-69-
| SECTION 17. |
COUNTERPARTS.
|
This
Agreement may be executed simultaneously in any number of counterparts. Each
counterpart shall be deemed to be an original, and all such counterparts shall
constitute one and the same instrument.
| SECTION 18. |
PLACE
OF DELIVERY AND GOVERNING LAW.
|
This
Agreement shall be deemed in effect when a fully executed counterpart thereof
is
received by the Purchaser in the State of New York and shall be deemed to have
been made in the State of New York. The Agreement shall be construed in
accordance with the laws of the State of New York and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
the
laws of the State of New York, except to the extent preempted by Federal
law.
| SECTION 19. |
FURTHER
AGREEMENTS.
|
The
Purchaser and the Seller each agree to execute and deliver to the other such
additional mutually agreeable documents, instruments or agreements as may be
reasonably necessary or appropriate in the judgment of the Purchaser to
effectuate the purposes of this Agreement.
Without
limiting the generality of the foregoing, the Seller shall cooperate with the
Purchaser in connection with the initial resales of the Mortgage Loans by the
Purchaser. In that connection, the Seller shall provide to the Purchaser: (i)
any and all information and appropriate verification of information, whether
through letters of its auditors and counsel or otherwise, as the Purchaser
shall
reasonably request; and (ii) such additional representations, warranties,
covenants, opinions of counsel, letters from auditors, and certificates of
public officials or officers of the Seller as are reasonably believed necessary
by the Purchaser in connection with such resales. The requirement of the Seller
pursuant to (ii) above shall terminate on the related Closing Date. Prior to
incurring any out-of-pocket expenses pursuant to this paragraph, the Seller
shall notify the Purchaser in writing of the estimated amount of such expense.
The Purchaser shall reimburse the Seller for any such reasonable expense
following its receipt of appropriate details thereof.
-70-
| SECTION 20. |
INTENTION
OF THE PARTIES.
|
It
is the
intention of the parties that the Purchaser is purchasing, and the Seller is
selling, 100% ownership interest in the Mortgage Loans and not a debt instrument
of the Seller or another security. Accordingly, the parties hereto each intend
to treat each transaction for Federal income tax purposes as a sale by the
Seller, and a purchase by the Purchaser, of the Mortgage Loans. Moreover, the
arrangement under which the Mortgage Loans are held shall be consistent with
classification of such arrangement as a grantor trust in the event it is not
found to represent direct ownership of the Mortgage Loans. The Purchaser shall
have the right to review the Mortgage Loans and the related Mortgage Loan Files
to determine the characteristics of the Mortgage Loans which shall affect the
Federal income tax consequences of owning the Mortgage Loans and the Seller
shall cooperate with all reasonable requests made by the Purchaser in the course
of such review.
The
Purchaser and the Seller acknowledge and agree that the purpose of Sections
4(aa), 5(g), 6(r), 9(b), 29(a)(iv) and 28(c) of this Agreement is to facilitate
compliance by the Purchaser and any Depositor with the provisions of Regulation
AB and related rules and regulations of the Commission. Although Regulation
AB
is applicable by its terms only to offerings of asset-backed securities that
are
registered under the Securities Act, the Seller acknowledges that investors
in
privately offered securities may require that the Purchaser or any Depositor
provide comparable disclosure in unregistered offerings. References in this
Agreement to compliance with Regulation AB include provision of comparable
disclosure in private offerings.
Neither
the Purchaser nor any Depositor shall exercise its right to request delivery
of
information or other performance under these provisions other than in good
faith, or for purposes other than compliance with the Securities Act, the
Exchange Act and the rules and regulations of the Commission thereunder (or
the
provision in a private offering of disclosure comparable to that required under
the Securities Act). The Seller acknowledges that interpretations of the
requirements of Regulation AB may change over time, whether due to interpretive
guidance provided by the Commission or its staff, consensus among participants
in the asset-backed securities markets, advice of counsel, or otherwise, and
agrees to comply with requests made by the Purchaser or any Depositor in good
faith for delivery of information under these provisions on the basis of
evolving interpretations of Regulation AB. In connection
with any Securitization Transaction, the Seller
shall
cooperate fully with the Purchaser to deliver to the Purchaser (including any
of
its assignees or designees) and any Depositor, any and all statements, reports,
certifications, records and any other information necessary in the good faith
determination of the Purchaser or any Depositor to permit the Purchaser or
such
Depositor to comply with the provisions of Regulation AB, together with such
disclosures relating to the Seller,
any
Subservicer, any Third-Party Originator and the Mortgage Loans, or the servicing
of the Mortgage Loans, reasonably believed by the Purchaser or any Depositor
to
be necessary in order to effect such compliance.
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.
-71-
| SECTION 21. |
SUCCESSORS
AND ASSIGNS; ASSIGNMENT OF PURCHASE AGREEMENT;
RESIGNATION.
|
This
Agreement shall bind and inure to the benefit of and be enforceable by the
Seller and the Purchaser and the respective successors and assigns of the Seller
and the Purchaser. This Agreement shall not be assigned, pledged or hypothecated
by Seller to a third party without the prior written consent of the Purchaser.
The Purchaser shall have the right, without the consent of the Seller but
subject to the limit set forth in the third paragraph of Section 2(b) 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 such assignment of rights and assumption
of obligations, the assignee or designee shall accede to the rights and
obligations hereunder of the Purchaser with respect to such Mortgage Loans
and
the Purchaser as assignor shall be released from all obligations hereunder
with
respect to such Mortgage Loans from and after the date of such assignment and
assumption. All references to the Purchaser in this Agreement shall be deemed
to
include its assignee or designee.
The
Purchaser has entered into this Agreement with the Seller and subsequent
Purchasers will purchase the Mortgage Loans in reliance upon the independent
status of the Seller, and the representations as to the adequacy of AHMS’s
servicing facilities, plant, personnel, records and procedures, the Seller’s and
AHMS’s integrity, reputation and financial standing, and the continuance
thereof. Therefore, the Seller shall neither assign this Agreement or the
servicing hereunder or delegate its rights or duties hereunder or any portion
hereof (to other than AHMS solely as a Subservicer or a third party in the
case
of outsourcing routine tasks such as taxes, insurance, mortgage release and
property inspection, in which case the Seller shall be fully liable for such
tasks as if the Seller performed them itself) or sell or otherwise dispose
of
all or substantially all of its property or assets without the prior written
consent of the Purchaser, which consent shall not be unreasonably withheld
by
the Purchaser.
The
Seller shall not resign from the obligations and duties hereby imposed on it
except by mutual consent of the Seller and the Purchaser or upon the Seller’s
reasonable determination that its duties hereunder are no longer permissible
under applicable law and such incapacity cannot be cured by the Seller without
commercially unreasonable cost or expense. 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 reasonably 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 this
Section.
Without
in any way limiting the generality of this Section, in the event that the Seller
either shall assign this Agreement or the servicing responsibilities hereunder
or delegate its duties hereunder or any portion thereof (to other than a third
party in the case of outsourcing routine tasks such as taxes, insurance,
mortgage release and property inspection, in which case the Seller shall be
fully liable for such tasks as if the Seller performed them itself) or sell
or
otherwise dispose of all or substantially all of its property or assets, without
the prior written consent of the Purchaser, then the Purchaser shall have the
right to terminate this Agreement upon notice given as set forth in Section
28(a), without any payment of any penalty or damages and without any liability
whatsoever to the Seller or any third party.
-72-
SECTION
22. WAIVERS;
OTHER AGREEMENTS.
No
term
or provision of this Agreement may be waived or modified unless such waiver
or
modification is in writing and signed by the party against whom such waiver
or
modification is sought to be enforced.
SECTION
23. EXHIBITS.
The
exhibits to this Agreement are hereby incorporated and made a part hereof and
are an integral part of this Agreement.
SECTION
24. GENERAL
INTERPRETIVE PRINCIPLES.
For
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires:
(a) the
terms
defined in this Agreement have the meanings assigned to them in this Agreement
and include the plural as well as the singular, and the use of any gender herein
shall be deemed to include the other gender;
(b) accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles;
(c) references
herein to “Articles”, “Sections”, “Subsections”, “Paragraphs”, and other
subdivisions without reference to a document are to designated Articles,
Sections, Subsections, Paragraphs and other subdivisions of this
Agreement;
(d) a
reference to a Subsection without further reference to a Section is a reference
to such Subsection as contained in the same Section in which the reference
appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(e) the
words
“herein”, “hereof”, “hereunder” and other words of similar import refer to this
Agreement as a whole and not to any particular provision; and
(f) the
term
“include” or “including” shall mean without limitation by reason of
enumeration.
SECTION
25. 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.
-73-
SECTION
26. 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 their comparable jurisdictions in which any
or
all of the Mortgaged Properties are situated, and in any other appropriate
public recording office or elsewhere, such recordation to be effected at the
Seller’s expense in the event recordation is either necessary under applicable
law or requested by the Purchaser at its sole option.
SECTION
27. NO
PERSONAL SOLICITATION.
From
and
after the related Closing Date, the Seller hereby agrees that it will not take
any action or permit or cause any action to be taken by any of its agents or
affiliates, or by any independent contractors on the Seller’s behalf, to
personally, by telephone or mail, solicit the borrower or obligor under any
related Mortgage Loan for any purpose whatsoever, including but not limited
to
any pay-off requests or refinance of a Mortgage Loan, in whole or in part,
without the prior written consent of the Purchaser. It is understood and agreed
that all rights and benefits relating to the solicitation of any Mortgagors
and
the attendant rights, title and interest in and to the list of such Mortgagors
and data relating to their Mortgages (including insurance renewal dates) shall
be transferred to the Purchaser pursuant hereto on the related Closing Date
and
the Seller shall take no action to undermine these rights and benefits.
Notwithstanding the foregoing, it is understood and agreed that promotions
undertaken by or on behalf of the Seller or any affiliate of the Seller which
are directed to the general public at large, including, without limitation,
mass
mailing based on commercially acquired mailing lists, newspaper, radio and
television advertisements shall not constitute solicitation under this Section
27.
SECTION
28. DEFAULT;
TERMINATION.
(a) Events
of Default.
Each of
the following shall constitute an Event of Default on the part of the
Seller:
(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
two
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
-74-
(ii) the
failure by the Seller duly to observe or perform in any material respect any
other of the covenants or agreements on the part of the Seller set forth in
this
Agreement which 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 the Purchaser; provided, however, that
any notice, grace period or other remedy period with respect to the failure
by
the Seller duly to observe or perform any of the covenants or agreements herein
related to Regulation AB shall be set forth solely in Sections 28(c) and 28(d);
or
(iii) failure
by AHMS to maintain its license to do business or service residential mortgage
loans in any jurisdiction where any Mortgaged Property being serviced by AHMS
is
located; or
(iv) a
decree
or order of a court or agency or supervisory authority having jurisdiction
for
the appointment of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, including bankruptcy, marshaling of assets and liabilities
or similar proceedings, or for the winding-up or liquidation of its affairs,
shall have been entered against the Seller and such decree or order shall have
remained in force undischarged or unstayed for a period of 60 days;
or
(v) the
Seller shall consent to the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings of or relating to the Seller or of or
relating to all or substantially all of its property; or
(vi) the
Seller shall admit in writing its inability to pay its debts generally as they
become due, file a petition to take advantage of any applicable insolvency,
bankruptcy or reorganization statute, make an assignment for the benefit of
its
creditors, voluntarily suspend payment of its obligations or cease its normal
business operations for three Business Days; or
(vii) AHMS
ceases to meet the qualifications of a Xxxxxx Xxx or Xxxxxxx Mac servicer;
or
(viii) AHMS
fails to maintain a minimum net worth of $25,000,000; or
(ix) except
with respect to a Subservicer in accordance with Section 4(aa), 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 (to other than a third party in the case of outsourcing
routine tasks such as taxes, insurance, mortgage release and property
inspection, in which case the Seller shall be fully liable for such tasks as
if
the Seller performed them itself) in violation of Section 21; or
(x) if
(a)
after a Reconstitution in a Securitization
Transaction,
any of
the Rating Agencies reduces or withdraws the rating of any of the certificates
issued by a securitization trust that owns the Mortgage Loans due to a reason
attributable to AHMS or (b) the AHMS’s residential primary servicer rating for
servicing of mortgage loans of the same type as the Mortgage Loans issued by
any
of the Rating Agencies is reduced two levels below its rating in effect on
the
related Closing Date or withdrawn.
-75-
In
each
and every such case, so long as an Event of Default shall not have been
remedied, in addition to whatsoever rights the Purchaser may have at law or
equity to damages, including injunctive relief and specific performance, the
Purchaser, by notice in writing to the Seller, (i) may terminate all the rights
and obligations of the Seller under this Agreement and in and to the Mortgage
Loans and the proceeds thereof and (ii) may terminate any commitment the
Purchaser has entered into to purchase additional Mortgage Loans from the Seller
hereunder.
Upon
receipt by the Seller of such written notice, all authority and power of the
Seller under this Agreement, whether with respect to the Mortgage Loans or
otherwise, shall pass to and be vested in the successor appointed pursuant
to
Section 21. Upon written request from any Purchaser, the Seller shall prepare,
execute and deliver to the successor entity designated by the Purchaser any
and
all documents and other instruments, place in such successor’s possession all
Mortgage Files, and do or cause to be done all other acts or things necessary
or
appropriate to effect the purposes of such notice of termination, including
but
not limited to the transfer and endorsement or assignment of the Mortgage Loans
and related documents, at the Seller’s sole expense. The Seller shall cooperate
with the Purchaser and such successor in effecting the termination of the
Seller’s responsibilities and rights hereunder, including without limitation,
the transfer to such successor for administration by it of all cash amounts
which shall at the time be credited by the Seller to the Custodial Account
or
Escrow Account or thereafter received with respect to the Mortgage
Loans.
(b) Waiver
of Defaults.
By a
written notice, the Purchaser may waive any default by the Seller in the
performance of its obligations hereunder and its consequences. Upon any waiver
of a past default, such default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been remedied for every purpose of
this Agreement. No such waiver shall extend to any subsequent or other default
or impair any right consequent thereon except to the extent expressly so
waived.
(c) Termination.
This
Agreement shall terminate upon the earlier of: (i) later of the final payment
or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or the disposition of any REO Property with respect to the last Mortgage
Loan and the remittance of all funds due hereunder and (ii) the exercise of
the
Purchaser’s right pursuant to Section 28(a) to terminate this Agreement upon an
Event of Default. All representations, warranties, rights to audits, indemnity
obligations, and other remedies available to the Purchaser under this Agreement,
at law or in equity, will survive the termination of this
Agreement.
(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 Agreement, or any
breach by the Seller of a representation or warranty set forth in Section
6(r)(i) or in a writing furnished pursuant to Section 6(r) (ii) and made as
of a
date prior to the closing date of the related Securitization Transaction, to
the
extent that such breach is not cured by such closing date, or any breach by
the
Seller of a representation or warranty in a writing furnished pursuant to
Section 6(r)(ii) to the extent made as of a date subsequent to such closing
date, shall, except as provided in clause (ii) of this Section 28(c),
immediately and automatically, without notice or grace period, constitute an
Event of Default with respect to the Seller under this Agreement and any
applicable Reconstitution Agreement, and shall entitle the Purchaser or
Depositor, as applicable, in its sole discretion to terminate the rights and
obligations of the Seller as servicer under this Agreement and/or any applicable
Reconstitution Agreement without payment (notwithstanding anything in this
Agreement or any applicable Reconstitution Agreement to the contrary) of any
compensation to the Seller; provided
that to
the extent that any provision of this Agreement and/or any applicable
Reconstitution Agreement expressly provides for the survival of certain rights
or obligations following termination of the Seller as servicer, such provision
shall be given effect.
-76-
(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 5(f) or 5(g), including (except as provided below)
any
failure by the Seller to identify pursuant to Section 4(a)(ii) any Subcontractor
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB (which in the case of deliveries under this Agreement, but not
a
Reconstitution Agreement, pursuant to Section 5(g) continues unremedied for
twenty calendar days after the date on which such information, report,
certification or accountants’ letter was required to be delivered) shall
constitute an Event of Default with respect to the Seller under this Agreement
and any applicable Reconstitution Agreement, and shall entitle the Purchaser
or
Depositor, as applicable, in its sole discretion to terminate the rights and
obligations of the Seller as servicer under this Agreement and/or any applicable
Reconstitution Agreement without payment (notwithstanding anything in this
Agreement to the contrary) of any compensation to the Seller; provided
that to
the extent that any provision of this Agreement and/or any applicable
Reconstitution Agreement expressly provides for the survival of certain rights
or obligations following termination of the Seller as servicer, such provision
shall be given effect. Neither the Purchaser nor any Depositor shall be entitled
to terminate the rights and obligations of the Seller pursuant to this
subparagraph (ii) if a failure of the Seller to identify a Subcontractor
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB was attributable solely to the role or functions of such
Subcontractor with respect to mortgage loans other than the Mortgage
Loans.
(iii) The
Seller shall promptly reimburse the Purchaser (or any designee of the Purchaser,
such as a master servicer) and any Depositor, as applicable, for all reasonable
expenses incurred by the Purchaser (or such designee) or such Depositor as
such
are incurred, in connection with the termination of the Seller as servicer
and
the transfer of servicing of the Mortgage Loans to a successor servicer. The
provisions of this paragraph shall not limit whatever rights the Purchaser
or
any Depositor may have under other provisions of this Agreement and/or any
applicable Reconstitution Agreement or otherwise, whether in equity or at law,
such as an action for damages, specific performance or injunctive
relief.
-77-
(d) Termination
Without Cause.
This
Agreement and the Seller’s rights hereunder with respect to some or all of the
Mortgage Loans shall terminate upon: (i) the later of (a) the distribution
of
the final payment or liquidation proceeds on the last Mortgage Loan to the
Purchaser (or advances by the Seller for the same), and (b) the disposition
of
all REO Property acquired upon foreclosure of the last Mortgage Loan and the
remittance of all funds due hereunder, or (ii) mutual consent of the Seller
and
the Purchaser in writing or (iii) at the sole option of the Purchaser, without
cause, upon 30 days written notice, subject to the limitations set forth below.
Any such notice of termination shall be in writing and delivered to the Seller
by registered mail to the address set forth
at
the beginning of this Agreement. The Purchaser and the Seller shall comply
with
the termination procedures set forth in Sections 28(a) and 21
hereof.
In
the
event the Purchaser terminates the Seller without cause with respect to some
or
all of the Mortgage Loans, the Purchaser shall be required to pay to the Seller
a termination fee equal to 1.125% of the aggregate unpaid principal balance
of
the Mortgage Loans as of such termination date (or such other amount as may
be
set forth in the related Purchase Price and Terms Letter); provided, that no
termination fee shall be paid or payable with respect to the unpaid principal
balance of any Distressed Mortgage Loan.
Subject
to the requirements set forth in this paragraph, the Seller may terminate this
Agreement with respect to the servicing of those Mortgage Loans that are
determined to be Distressed Mortgage Loans as of the fifteenth calendar day
preceding the Transfer Date (or if such day is not a Business Day, the
immediately preceding Business Day) and servicing of such Mortgage Loans shall
be transferred to the Special Servicer. The
Seller shall be responsible for the delivery of all required transfer notices
and will send a copy of the transfer notice to the Master Servicer.
Not
later than the Business Day immediately following the Transfer Date, the Seller
shall deliver to the Special Servicer, with respect to the Distressed Mortgage
Loans that were transferred to the Special Servicer on such Transfer Date,
all
related Servicing Files and a loan level tape or other electronic media
containing loan set-up information in form reasonably acceptable to the Special
Servicer. No termination fee shall be payable to Seller with respect to Mortgage
Loans that transfer to a Special Servicer.
(e) Transfer
Of Servicing. In
the
event that the Seller’s duties, responsibilities and liabilities under this
Agreement should be terminated pursuant to the provisions of this Agreement,
the
Seller shall discharge such duties and responsibilities during the period from
the date it acquires knowledge of such termination until the effective date
thereof with the same degree of diligence and prudence which it is obligated
to
exercise under this Agreement, and shall take no action whatsoever that might
impair or prejudice the rights or financial condition of its successor. The
resignation or removal of the Seller pursuant to this Agreement shall not become
effective until a successor shall be appointed by the Purchaser. The Seller
shall deliver promptly to the successor Seller the funds in the Custodial
Account and Escrow Account and all Servicing Files and related documents and
statements held by it hereunder and the Seller shall account for all funds
and
shall execute and deliver such instruments and do such other things as may
reasonably be required to more fully and definitively vest in the successor
all
such rights, powers, duties, responsibilities, obligations and liabilities
of
the Seller.
-78-
SECTION
29. RECONSTITUTION.
(a) Removal
of Mortgage Loans from Inclusion Under this Agreement Upon an Agency Transfer,
or a Securitization Transaction on One or More Reconstitution
Dates.
The
Purchaser and the Seller agree that with respect to some or all of the Mortgage
Loans, from time to time the Purchaser shall:
(1) Effect
an
Agency Transfer, and/or
(2) Effect
a
Whole Loan Transfer, and/or
(3) Effect
a
Securitization Transaction,
in
each
case retaining the Seller as the Seller thereof to service the Mortgage Loans
on
a “scheduled/scheduled” basis. On the related Reconstitution Date, the Mortgage
Loans transferred shall cease to be covered by this Agreement, except with
respect to the right of the Purchaser to cause a transfer of the servicing
responsibilities with respect to the Mortgage Loans in accordance with Section
29(b) hereof.
(i) The
Seller shall cooperate with the Purchaser in connection with any Agency
Transfer, Securitization Transaction or Whole Loan Transfer contemplated by
the
Purchaser pursuant to this Section. In that connection, the Seller shall (and,
to the extent mutually agreed to by the Purchaser and the Seller, cause AHMS,
as
Subservicer, to), in each case, as applicable:
(1) negotiate
and execute all agreements executed in connection with such Agency Transfer,
Whole Loan Transfer or Securitization Transaction that govern the servicing
and
administration of the Mortgage Loans (and any agreements and other documents
incidental thereto) as the Purchaser shall reasonably request, provided that,
in
the case of a Whole Loan Transfer or Securitization Transaction, the servicing
provisions contained therein shall be substantially similar to those contained
in this Agreement and shall not contain any obligations materially more onerous
than those contained herein that increase the expenses or obligations of the
Seller, unless otherwise mutually agreed by the parties (provided,
that
each of the Seller and the Purchaser is given a reasonable period of time to
review and reasonably negotiate in good faith the content of such documents
not
specifically referenced or provided herein, which time shall be sufficient
for
the Seller and Seller’s counsel to review any such agreement, but such time
shall not exceed ten (10) days after such receipt), which governing documents,
in the case of a Securitization Transaction, shall contain provisions
customarily included in publicly issued or privately placed rated secondary
mortgage market transactions; in the case of any Agency Transfer, the
Reconstitution Agreements shall be those customarily employed by Xxxxxx Xxx,
Xxxxxx Xxx or Xxxxxxx Mac for transactions of such nature. Any Reconstitution
Agreement may require the Seller to remit premium payments with respect to
any
LPMI Policy to the related insurer;
-79-
(2) cooperate
fully with the Purchaser, Xxxxxx Mae, Xxxxxxx Mac, the trustee or a third party
purchaser and any prospective purchaser, at the Purchaser’s expense, with
respect to all reasonable requests and due diligence procedures including
participating in meetings with rating agencies, Xxxxxx Mae, Xxxxxxx Mac, bond
insurers, guarantors, loss mitigation or credit risk management advisors and
such other parties as the Purchaser shall designate and participating in
meetings with prospective purchasers of the Mortgage Loans or interests therein
and providing information contained in the Mortgage Loan Schedule including
any
diskette or other related data tapes provided as reasonably requested by such
purchasers;
(3) negotiate
and execute one or more loss mitigation advisory or credit risk management
agreements between the Seller and any loss mitigation or credit risk management
advisor designated by the Purchaser in its sole discretion (provided,
that
each of the Seller and the Purchaser is given a reasonable period of time to
review and reasonably negotiate in good faith the content of such documents
not
specifically referenced or provided herein, which time shall be sufficient
for
the Seller and Seller’s counsel to review any such agreement, but such time
shall not exceed ten (10) days after such receipt);
(4) negotiate
and execute one or more master servicing agreements between the Seller and
any
third party servicer which is servicing loans on behalf of the Purchaser
providing for such third party servicer to master service such Mortgage Loans
on
behalf of the Purchaser, provided that, in the case of a Whole Loan Transfer
or
Securitization Transaction, the servicing provisions contained therein shall
be
substantially similar to those contained in this Agreement and shall not contain
any obligations materially more onerous than those contained herein that
increase the expenses or obligations of the Seller, unless otherwise mutually
agreed by the parties (provided,
that
each of the Seller and the Purchaser is given a reasonable period of time to
review and reasonably negotiate in good faith the content of such documents
not
specifically referenced or provided herein, which time shall be sufficient
for
the Seller and Seller’s counsel to review any such agreement, but such time
shall not exceed ten (10) days after such receipt);
(5) negotiate
and execute one or more subservicing agreements between the Seller and any
master servicer which is generally considered to be a prudent master servicer
in
the secondary mortgage market designated by the Purchaser in its sole discretion
after consultation with the Seller and/or one or more custodial and servicing
agreements among the Purchaser or an Affiliate of the Purchaser, the Seller
and
a third party custodian/trustee which is generally considered to be a prudent
custodian/trustee in the secondary mortgage market designated by the Purchaser
in its sole discretion after consultation with the Seller, in either case for
the purpose of pooling the Mortgage Loans with other mortgage loans for resale
or securitization, provided that, in the case of a Whole Loan Transfer or
Securitization Transaction, the servicing provisions contained therein shall
be
substantially similar to those contained in this Agreement and shall not contain
any obligations materially more onerous than those contained herein that
increase the expenses or obligations of the Seller, unless otherwise mutually
agreed by the parties (provided,
that
each of the Seller and the Purchaser is given a reasonable period of time to
review and reasonably negotiate in good faith the content of such documents
not
specifically referenced or provided herein, which time shall be sufficient
for
the Seller and Seller’s counsel to review any such agreement, but such time
shall not exceed ten (10) days after such receipt);
-80-
(6) deliver
to the Purchaser and to any Person designated by the Purchaser (a) for inclusion
in any prospectus or other offering material such publicly available information
regarding the Seller, its financial condition and its mortgage loan delinquency,
foreclosure and loss experience and any additional information requested by
the
Purchaser, (b) any similar non-public, unaudited financial information (which
the Purchaser may, at its option and at its cost, have audited by certified
public accountants) and such other information as is reasonably requested by
the
Purchaser and which the Seller is capable of providing without unreasonable
effort or expense, and to indemnify the Purchaser and its Affiliates for
material misstatements contained in such information, and (c) such statements
and audit letters of reputable, certified public accountants pertaining to
information provided by the Seller pursuant to clause (a) above as shall be
reasonably requested by the Purchaser; and
(7) provide,
on an ongoing basis from information obtained through its servicing of the
Mortgage Loans, any information necessary to enable the “tax matters person” for
any REMIC in a Securitization Transaction, including any Master Servicer or
trustee acting in such capacity, to perform its obligations in accordance with
applicable law and customary secondary mortgage market standards for securitized
transactions.
(ii)
The
Seller shall provide to the Purchaser or issuer, as the case may be, and any
other participants in such Agency Transfer, Whole Loan Transfer or
Securitization Transaction, (i) any and all information with respect to itself,
its servicing portfolio or the Mortgage Loans and appropriate verification
of
information which may be reasonably available to the Seller, whether through
letters of its auditors and counsel or otherwise, as the Purchaser or any such
other participant shall request upon reasonable demand and (ii) such additional
representations, warranties, covenants, opinions of counsel, letters from
auditors, and certificates of public officials or officers of the Seller as
are
reasonably believed necessary by Xxxxxx Mae, Xxxxxxx Mac, the trustee, such
third party purchaser, any Master Servicer, any Rating Agency or the Purchaser,
as the case may be, in connection with such transactions. In the event that
AHMS
is the named servicer in a Securitization Transaction and enters into a related
Reconstitution Agreement, Seller shall provide the information required pursuant
to this Section 29(a)(ii) with respect to AHMS.
(iii) To
the
extent required by the applicable Reconstitution Agreements or otherwise
requested by the Purchaser in connection with a Reconstitution, the Seller
shall
prepare Assignments of Mortgage in form and substance acceptable to Xxxxxx
Mae,
Xxxxxxx Mac, the trustee or such third party, as the case may be, for each
Mortgage Loan that is part of a Reconstitution. The Seller shall execute each
Assignment of Mortgage, track such Assignments of Mortgage to ensure they have
been recorded and deliver them as required by Xxxxxx Mae, Xxxxxxx Mac, the
trustee or such third party, as the case may be, upon the Seller’s receipt
thereof. The Purchaser shall pay all reasonable and necessary fees associated
with the preparation, recording and tracking of such Assignments of
Mortgage.
-81-
(iv) In
connection with any Securitization Transaction the Seller shall (1) within
five
Business Days following request by the Purchaser or any Depositor, provide
to
the Purchaser and such Depositor (or, as applicable, cause each Third-Party
Originator and each Subservicer to provide), in writing and in form and
substance reasonably satisfactory to the Purchaser and such Depositor, the
information and materials specified in paragraphs (1), (2), (3) and (4) of
this
Section 29(a)(iv), and (2) as promptly as practicable following notice to or
discovery by the Seller, provide to the Purchaser and any Depositor (in writing
and in form and substance reasonably satisfactory to the Purchaser and such
Depositor) the information specified in paragraph (4) of this Section 29(a)(iv).
(1) If
so
requested by the Purchaser or any Depositor, the Seller shall provide such
information regarding (x) the Seller, as originator of the Mortgage Loans
(including as an acquirer of Mortgage Loans from a Qualified Correspondent),
or
(y) each Third-Party Originator, and (z) as applicable, each Subservicer, as
is
requested for the purpose of compliance with Items 1103(a)(1), 1105, 1110,
1117
and 1119 of Regulation AB. Such information shall include, at a
minimum:
a)
the
originator’s form of organization;
b) a
description of the originator’s origination program and how long the originator
has been engaged in originating residential mortgage loans, which description
shall include a discussion of the originator’s experience in originating
mortgage loans of a similar type as the Mortgage Loans; information regarding
the size and composition of the originator’s origination portfolio; and
information that may be material, in the good faith judgment of the Purchaser
or
any Depositor, to an analysis of the performance of the Mortgage Loans,
including the originators’ credit-granting or underwriting criteria for mortgage
loans of similar type(s) as the Mortgage Loans and such other information as
the
Purchaser or any Depositor may reasonably request for the purpose of compliance
with Item 1110(b)(2) of Regulation AB;
c) a
description of any material legal or governmental proceedings pending (or known
to be contemplated) against the Seller, each Third-Party Originator and each
Subservicer; and
d) a
description of any affiliation or relationship between the Seller, each
Third-Party Originator, each Subservicer and any of the following parties to
a
Securitization Transaction, as such parties are identified to the Seller by
the
Purchaser or any Depositor in writing in advance of such Securitization
Transaction:
(1) the
sponsor;
-82-
(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.
(2) If
so
requested by the Purchaser or any Depositor, the Seller shall provide (or,
as
applicable, cause each Third-Party Originator to provide) Static Pool
Information with respect to the mortgage loans (of a similar type as the
Mortgage Loans, as reasonably identified by the Purchaser as provided below)
originated by (a) the Seller, if the Seller is an originator of Mortgage Loans
(including as an acquirer of Mortgage Loans from a Qualified Correspondent),
and/or (b) each Third-Party Originator. Such Static Pool Information shall
be
prepared by the Seller (or Third-Party Originator) on the basis of its
reasonable, good faith interpretation of the requirements of Item 1105(a)(1)-(3)
of Regulation AB. To the extent that there is reasonably available to the Seller
(or Third-Party Originator) Static Pool Information with respect to more than
one mortgage loan type, the Purchaser or any Depositor shall be entitled to
specify whether some or all of such information shall be provided pursuant
to
this paragraph. The content of such Static Pool Information may be in the form
customarily provided by the Seller, and need not be customized for the Purchaser
or any Depositor. Such Static Pool Information for each vintage origination
year
or prior securitized pool, as applicable, shall be presented in increments
no
less frequently than quarterly over the life of the mortgage loans included
in
the vintage origination year or prior securitized pool. The most recent periodic
increment must be as of a date no later than 135 days prior to the date of
the
prospectus or other offering document in which the Static Pool Information
is to
be included or incorporated by reference. The Static Pool Information shall
be
provided in an electronic format that provides a permanent record of the
information provided, such as a portable document format (pdf) file, or other
such electronic format reasonably required by the Purchaser or the Depositor,
as
applicable.
Promptly
following notice or discovery of a material error in Static Pool Information
provided pursuant to the immediately preceding paragraph (including an omission
to include therein information required to be provided pursuant to such
paragraph), the Seller shall provide corrected Static Pool Information to the
Purchaser or any Depositor, as applicable, in the same format in which Static
Pool Information was previously provided to such party by the
Seller.
If
so
requested by the Purchaser or any Depositor, the Seller shall provide (or,
as
applicable, cause each Third-Party Originator to provide), at the expense of
the
requesting party (to the extent of any additional incremental expense associated
with delivery pursuant to this Agreement), such agreed-upon procedures letters
of certified public accountants reasonably acceptable to the Purchaser or
Depositor, as applicable, pertaining
to Static Pool Information relating to prior securitized pools for
securitizations closed on or after January 1, 2006 or, in the case of Static
Pool Information with respect to the Seller’s or Third-Party Originator’s
originations or purchases, to calendar months commencing January 1,
2006,
as the
Purchaser or such Depositor shall reasonably request. Such letters shall be
addressed to and be for the benefit of such parties as the Purchaser or such
Depositor shall designate, which may include, by way of example, any Sponsor,
any Depositor and any broker dealer acting as underwriter, placement agent
or
initial purchaser with respect to a Securitization Transaction. Any such
statement or letter may take the form of a standard, generally applicable
document accompanied by a reliance letter authorizing reliance by the addressees
designated by the Purchaser or such Depositor.
-83-
(3) If
so
requested by the Purchaser or any Depositor, the Seller shall provide such
information regarding the Seller, as servicer of the Mortgage Loans, and each
Subservicer (each of the Seller and each Subservicer, for purposes of this
paragraph, a “Servicer”),
as is
requested for the purpose of compliance with Item 1108 of Regulation AB. Such
information shall include, at a minimum:
a) the
Servicer’s form of organization;
b) a
description of how long the Servicer has been servicing residential mortgage
loans; a general discussion of the Servicer’s experience in servicing assets of
any type as well as a more detailed discussion of the Servicer’s experience in,
and procedures for, the servicing function it will perform under this Agreement
and any Reconstitution Agreements; information regarding the size, composition
and growth of the Servicer’s portfolio of residential mortgage loans of a type
similar to the Mortgage Loans and information on factors related to the Servicer
that may be material, in the good faith judgment of the Purchaser or any
Depositor, to any analysis of the servicing of the Mortgage Loans or the related
asset-backed securities, as applicable, including, without
limitation:
(1) whether
any prior securitizations of mortgage loans of a type similar to the Mortgage
Loans involving the Servicer have defaulted or experienced an early amortization
or other performance triggering event because of servicing during the three-year
period immediately preceding the related Securitization
Transaction;
(2) the
extent of outsourcing the Servicer utilizes;
(3) whether
there has been previous disclosure of material noncompliance with the applicable
servicing criteria with respect to other securitizations of residential mortgage
loans involving the Servicer as a servicer during the three-year period
immediately preceding the related Securitization Transaction;
-84-
(4) whether
the Servicer has been terminated as servicer in a residential mortgage loan
securitization, either due to a servicing default or to application of a
servicing performance test or trigger; and
(5) such
other information as the Purchaser or any Depositor may reasonably request
for
the purpose of compliance with Item 1108(b)(2) of Regulation AB;
c) a
description of any material changes during the three-year period immediately
preceding the related Securitization Transaction to the Servicer’s policies or
procedures with respect to the servicing function it will perform under this
Agreement and any Reconstitution Agreements for mortgage loans of a type similar
to the Mortgage Loans;
d) information
regarding the Servicer’s financial condition, to the extent that there is a
material risk that an adverse financial event or circumstance involving the
Servicer could have a material adverse effect on the performance by the Seller
of its servicing obligations under this Agreement or any Reconstitution
Agreement;
e) information
regarding advances made by the Servicer on the Mortgage Loans and the Servicer’s
overall servicing portfolio of residential mortgage loans for the three-year
period immediately preceding the related Securitization Transaction, which
may
be limited to a statement by an authorized officer of the Servicer to the effect
that the Servicer has made all advances required to be made on residential
mortgage loans serviced by it during such period, or, if such statement would
not be accurate, information regarding the percentage and type of advances
not
made as required, and the reasons for such failure to advance;
f) a
description of the Servicer’s processes and procedures designed to address any
special or unique factors involved in servicing loans of a similar type as
the
Mortgage Loans;
g) a
description of the Servicer’s processes for handling delinquencies, losses,
bankruptcies and recoveries, such as through liquidation of mortgaged
properties, sale of defaulted mortgage loans or workouts; and
h) information
as to how the Servicer defines or determines delinquencies and charge-offs,
including the effect of any grace period, re-aging, restructuring, partial
payments considered current or other practices with respect to delinquency
and
loss experience.
(4) If
so
requested by the Purchaser or any Depositor for the purpose of satisfying its
reporting obligation under the Exchange Act with respect to any class of
asset-backed securities, the Seller shall (or shall cause each Subservicer
and
Third-Party Originator to) (a) notify the Purchaser and any Depositor in writing
of (1) any material litigation or governmental proceedings pending against
the
Seller, any Subservicer or any Third-Party Originator and (2) any affiliations
or relationships that develop following the closing date of a Securitization
Transaction between the Seller, any Subservicer or any Third-Party Originator
and any of the parties specified in clause (d) of paragraph (1) of this Section
29(a)(iii) (and any other parties identified in writing by the requesting party)
with respect to such Securitization Transaction, and (b) provide to the
Purchaser and any Depositor a description of such proceedings, affiliations
or
relationships.
-85-
(5) As
a
condition to the succession to the Seller or any Subservicer as servicer or
subservicer under this Agreement or any Reconstitution Agreement by any Person
(i) into which the Seller or such Subservicer may be merged or consolidated,
or
(ii) which may be appointed as a successor to the Seller or any Subservicer,
the
Seller shall provide to the Purchaser and any Depositor, at least 15 calendar
days prior to the effective date of such succession or appointment, (x) written
notice to the Purchaser and any Depositor of such succession or appointment
and
(y) in writing and in form and substance reasonably satisfactory to the
Purchaser and such Depositor, all information reasonably requested by the
Purchaser or any Depositor in order to comply with its reporting obligation
under Item 6.02 of Form 8-K with respect to any class of asset-backed
securities.
(6) In
addition to such information as the Seller, as servicer, is obligated to provide
pursuant to other provisions of this Agreement, if so requested by the Purchaser
or any Depositor, the Seller shall provide such information regarding the
performance or servicing of the Mortgage Loans as is reasonably required to
facilitate preparation of distribution reports in accordance with Item 1121
of
Regulation AB. Such information shall be provided concurrently with the monthly
reports otherwise required to be delivered by the servicer under this Agreement,
commencing with the first such report due not less than ten Business Days
following such request.
(v) Additionally,
with respect to each Securitization Transaction, as applicable, the Seller,
as
servicer, will
transmit full-file credit reporting data for each Mortgage Loan pursuant to
Xxxxxx Xxx Guide Announcement 95-19 and that for each Mortgage Loan, the Seller,
as servicer, agrees it shall report one of the following statuses each month
as
follows: new origination, current, delinquent (30-, 60-, 90-days, etc.),
foreclosed, or charged-off.
All
Mortgage Loans not sold or transferred pursuant to an Agency Transfer,
Securitization Transaction or Whole Loan Transfer and any and all Mortgage
Loans
repurchased by the Purchaser pursuant to Section 29(c) below with respect to
an
Agency Transfer, Securitization Transaction or Whole Loan Transfer or otherwise
directly or indirectly reacquired by the Purchaser or its designee upon
termination of an Agency Transfer or Securitization Transaction or otherwise,
shall be subject to this Agreement and shall continue to be serviced in
accordance with the terms of this Agreement and with respect thereto this
Agreement shall remain in full force and effect.
-86-
(b) Transfer
of Servicing Following Reconstitution.
Following a Reconstitution of Mortgage Loans, the Purchaser or its designee
(which may include the master servicer, trustee, insurer, guarantor or
certificateholders) shall have the right, in its sole discretion, to cause
the
Seller at any time under any Reconstitution Agreement to transfer the servicing
responsibilities and duties with respect to some or all of the Mortgage Loans
serviced thereunder to the Purchaser or any designee of the Purchaser; provided,
however, that the Purchaser shall provide the Seller with 30 days prior written
notice and shall pay to the Seller a termination fee identical to the
“termination without cause fee” structure set forth in Section 28(d), provided
further that such transfer shall be subject to the approval of Xxxxxx Mae or
Xxxxxxx Mac, as the case may be, with respect to Agency Transfers, the trustee,
Master Servicer or Rating Agencies with respect to Securitization
Transactions
or any
relevant third party purchaser with respect to Whole Loan Transfers. No
termination fee shall be paid or payable for any Mortgage Loans with respect
to
which any payment is more than 90 days past due as of the date of such
termination. The Seller agrees to cooperate
with the Purchaser in such transfer of servicing responsibilities and shall
comply with the termination procedures set forth in Sections 28(a) and 21
hereof.
(c) Purchaser’s
Repurchase and Indemnification Obligations.
Upon
receipt by the Seller of notice from Xxxxxx Mae, Xxxxxxx Mac or other such
third
party purchaser of a breach of any Purchaser representation or warranty
contained in any Reconstitution Agreement or a request by Xxxxxx Mae, Xxxxxxx
Mac or the trustee as the case may be, for the repurchase of any Mortgage Loan
transferred to Xxxxxx Mae or Xxxxxxx Mac pursuant to an Agency Transfer or
to a
trustee pursuant to a Securitization
Transaction,
the
Seller shall promptly notify the Purchaser of same and shall, at the direction
of the Purchaser, use its best efforts to cure and correct any such breach
and
to satisfy the requests or concerns of Xxxxxx Mae, Xxxxxxx Mac or the trustee
related to such deficiencies of the related Mortgage Loans transferred to Xxxxxx
Mae, Xxxxxxx Mac or the trustee.
The
Purchaser shall repurchase from the Seller any Mortgage Loan transferred to
Xxxxxx Mae or Xxxxxxx Mac pursuant to an Agency Transfer or to a trustee
pursuant to a Securitization
Transaction
with
respect to which the Seller has been required by Xxxxxx Mae, Xxxxxxx Mac or
the
trustee to repurchase due to a breach of a representation or warranty made
by
the Purchaser with respect to the Mortgage Loans, or the servicing thereof
prior
to the related Closing Date to Xxxxxx Mae, Xxxxxxx Mac or the trustee in any
Reconstitution Agreement and not due to a breach of the Seller’s representations
or obligations thereunder or pursuant to this Agreement. The repurchase price
to
be paid by the Purchaser to the Seller shall equal that repurchase price paid
by
the Seller to Xxxxxx Mae, Xxxxxxx Mac, or into the Securitization Transaction
plus all reasonable costs and expenses borne by the Seller in connection with
the cure of said breach of a representation or warranty made by the Purchaser
and in connection with the repurchase of such Mortgage Loan from Xxxxxx Mae,
Xxxxxxx Mac or the trustee, including, but not limited to, reasonable and
necessary attorneys’ fees.
At
the
time of repurchase, the Custodian and the Seller shall arrange for the
reassignment of the repurchased Mortgage Loan to the Purchaser according to
the
Purchaser’s instructions and the delivery to the Custodian of any documents held
by Xxxxxx Mae, Xxxxxxx Mac or the trustee with respect to the repurchased
Mortgage Loan pursuant to the related Reconstitution Agreement. In the event
of
a repurchase, the Seller shall, simultaneously with such reassignment, give
written notice to the Purchaser that such repurchase has taken place, and amend
the Mortgage Loan Schedule to reflect the addition of the repurchased Mortgage
Loan to this Agreement. In connection with any such addition, the Seller and
the
Purchaser hereby acknowledge and agree that the representations and warranties
set forth in this Agreement and made by the Seller as of the related Closing
Date with respect to such repurchase Mortgage Loan shall remain in full force
and effect solely as of the related Closing Date.
-87-
SECTION
30. MISCELLANEOUS
PROVISIONS.
(a) Successor
to the Seller.
Prior
to termination of the Seller’s responsibilities and duties under this Agreement
pursuant to Sections 21, 28(a) and 28(c) or pursuant to Section 28(d) after
the
30 day period has expired, the Purchaser shall, (i) succeed to and assume all
of
the Seller’s responsibilities, rights, duties and obligations under this
Agreement, or (ii) appoint a successor having the characteristics set forth
in
clauses (i) through (iii) of Section 12 and 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 it and such successor shall
agree. In the event that the Seller’s duties, responsibilities and liabilities
under this Agreement should be terminated pursuant to the aforementioned
sections, the Seller shall discharge such duties and responsibilities during
the
period from the date it acquires knowledge of such termination until the
effective date thereof with the same degree of diligence and prudence which
it
is obligated to exercise under this Agreement, and shall take no action
whatsoever that might impair or prejudice the rights or financial condition
of
its successor. The resignation or removal of the Seller pursuant to the
aforementioned sections shall not become effective until a successor shall
be
appointed pursuant to this Section and shall in no event relieve the Seller
of
the representations and warranties made pursuant to Section 6 and Section 7
and
the remedies available to the Purchaser under Section 8 and Section 4(bb),
it
being understood and agreed that the provisions of such Section 8 and Section
4(bb) shall be applicable to the Seller notwithstanding any such sale,
assignment, resignation or termination of the Seller, or the termination of
this
Agreement.
Within
30
days of the appointment of a successor entity by the Purchaser, the Seller
shall
prepare, execute and deliver to the successor entity any and all documents
and
other instruments, place in such successor’s possession all Servicing Files, and
do or cause to be done all other acts or things necessary or appropriate to
effect the purposes of such notice of termination, including but not limited
to
the transfer of the Mortgage Notes and related documents. The Seller shall
cooperate with the Purchaser and such successor in effecting the termination
of
the Seller’s responsibilities and rights hereunder and the transfer of servicing
responsibilities to the successor servicer, including without limitation, the
transfer to such successor for administration by it of all cash amounts which
shall at the time be credited by the Seller to the Custodial Account or Escrow
Account or thereafter received with respect to the Mortgage Loans.
-88-
Any
successor appointed as provided herein shall execute, acknowledge and deliver
to
the Seller and to the Purchaser an instrument accepting such appointment,
wherein the successor shall make the representations and warranties set forth
in
Section 6, whereupon such successor shall become fully vested with all the
rights, powers, duties, responsibilities, obligations and liabilities of the
Seller, with like effect as if originally named as a party to this Agreement.
Any termination or resignation of the Seller or termination of this Agreement
pursuant to Section 21, 28(a), 28(b) or 28(c) shall not affect any claims that
any Purchaser may have against the Seller arising out of the Seller’s actions or
failure to act prior to any such termination or resignation.
The
Seller shall deliver promptly to the successor servicer the Funds in the
Custodial Account and Escrow Account and all Mortgage Files and related
documents and statements held by it hereunder and the Seller shall account
for
all funds and shall execute and deliver such instruments and do such other
things as may reasonably be required to more fully and definitively vest in
the
successor all such rights, powers, duties, responsibilities, obligations and
liabilities of the Seller.
Upon
a
successor’s acceptance of appointment as such, the Seller shall notify by mail
the Purchaser of such appointment in accordance with the procedures set forth
in
Section 15.
(b) 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.
(c) Limitation
on Liability.
Neither
the Seller nor any of the directors, officers, employees or agents of the Seller
shall be under any liability to the Purchaser for any action taken or for
refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment, provided, however, that this provision
shall not protect the Seller or any such person against any Breach of warranties
or representations made herein, or failure to perform its obligations in strict
compliance with any standard of care set forth in this Agreement, or any
liability which would otherwise be imposed by reason of any breach of the terms
and conditions of this Agreement. The Seller and any director, officer, employee
or agent of the Seller may rely in good faith on any document of any kind prima
facie properly executed and submitted by any Person respecting any matters
arising hereunder. The Seller shall not be under any obligation to appear in,
prosecute or defend any legal action which is not incidental to its duties
to
service the Mortgage Loans in accordance with this Agreement and which in its
opinion may involve it in any expense or liability, provided, however, that
the
Seller may, with the consent of the Purchaser, undertake any such action which
it may deem necessary or desirable in respect to this Agreement and the rights
and duties of the parties hereto. In such event, the Seller shall be entitled
to
reimbursement from the Purchaser of the reasonable legal expenses and costs
of
such action.
(d) Appointment
and Designation of Master Servicer.
The
Purchaser may, in its sole discretion from time to time, engage a master
servicer (the “Master
Servicer”)
to
assist the Purchaser in the supervision of the performance by the Seller of
its
obligations and responsibilities arising under this Agreement. In the event
that
the Purchaser so appoints a Master Servicer, the Purchaser shall provide written
notice thereof to the Seller. From the date of such notice until such time
as
the Seller receives written notice from the Purchaser that it has terminated
or
replaced such Master Servicer, the Seller shall deliver all notices, reports
and
remittances that the Seller is obligated to deliver to the Purchaser under
this
Agreement directly to the Master Servicer named in such notice (or to any
successor master servicer named in any subsequent written notice received from
the Purchaser). The Master Servicer, acting on behalf of the Purchaser, shall
have the benefit of the covenants and agreements of the Seller under this
Agreement and the Master Servicer, acting on behalf of the Purchaser, shall
have
the same rights as the Purchaser to enforce the obligations of the Seller
arising under this Agreement. The Master Servicer shall be entitled to terminate
the rights and obligations of the Seller under this Agreement upon the
occurrence of an Event of Default as provided in this Agreement. Notwithstanding
anything herein to the contrary, in no event shall the Master Servicer assume
any of the obligations of the Purchaser under this Agreement; and in connection
with the performance of the Master Servicer’s duties hereunder the Seller agrees
that the Master Servicer shall be entitled to all of the rights, protections,
indemnities and limitations of liability afforded to the Purchaser under this
Agreement. The Purchaser hereby appoints Aurora Loan Services LLC as its initial
Master Servicer hereunder.
-89-
[Signature
page immediately follows]
-90-
IN
WITNESS WHEREOF, the Seller and the Purchaser have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of
the
date first above written.
|
XXXXXX
BROTHERS BANK, FSB
(Purchaser)
|
||
| |
|
|
| By: | ||
|
Name: Xxxx X. Xxxxxx |
||
| Title: Vice President | ||
|
AMERICAN
HOME MORTGAGE CORP.
(Seller)
|
||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
S-1
EXHIBIT
A-1
FORM
OF ACKNOWLEDGMENT AND CONVEYANCE AGREEMENT
(Group
No. 200_-____)
This
is
an Acknowledgment and Conveyance Agreement delivered pursuant to that certain
Flow Mortgage Loan Purchase, Warranties and Servicing Agreement, dated as of
May
1, 2007 (the “Purchase
Agreement”),
between Xxxxxx Brothers Bank, FSB (the “Purchaser”),
and
American Home Mortgage Corp., (the “Seller”).
All
capitalized terms used herein without definition shall have the meanings
ascribed thereto in the Purchase Agreement.
The
Purchaser and the Seller hereby confirm that they have reached agreement on
the
purchase, sale and servicing of the Mortgage Loans described on the Mortgage
Loan Schedule attached as Annex 1 hereto on the terms and conditions set forth
in the Purchase Agreement and the Purchase Price and Terms Agreement, dated
as
of ___________ __, 200_ between the parties hereto.
Accordingly,
on this ___ day of _____________, 200__, the Seller does hereby sell, transfer,
assign, set over and convey to the Purchaser all right, title and interest
of
the Seller in and to the Mortgage Loans listed on the Mortgage Loan Schedule
attached as Annex 1 hereto, including all interest and principal received by
the
Seller on or with respect to the Mortgage Loans after the related Cut-off Date,
together with all of the Seller’s right, title and interest in and to each
Custodial Account and all amounts from time to time credited to and the proceeds
of such Custodial Account, all amounts from time to time credited to and the
proceeds of any Escrow Account, any Liquidation Proceeds or Condemnation
Proceeds, any REO Disposition Proceeds, the Seller’s rights under any insurance
policies related to the Mortgage Loans, the Policy related to each Mortgage
Loan
and all rights of the Seller thereunder, any Insurance Proceeds, the Seller’s
security interest in any collateral pledged to secure the Mortgage Loans,
including the Mortgaged Properties, and any proceeds of the foregoing. Pursuant
to Section 2 of the Agreement, the Seller has delivered to the Custodian the
documents for each Mortgage Loan to be purchased as set forth in the Purchase
Agreement. The ownership of each Mortgage Note, Mortgage, and the contents
of
each Mortgage File is vested in the Purchaser and the ownership of all records
and documents with respect to the related Mortgage Loan prepared by or which
come into the possession of the Seller shall immediately vest in the Purchaser.
By
its
execution and delivery of this Acknowledgment and Conveyance Agreement, the
Seller represents and warrants to the Purchaser that each of the representations
and warranties contained in Sections 6 and 7 of the Purchase Agreement and
Annex
2
hereto
is true and correct as of the date hereof with respect to the Seller and each
of
the Mortgage Loans listed on the Mortgage Loan Schedule attached as Annex
1
hereto.
Pursuant
to Sections 7(rr) and 7(ss) of the Purchase Agreement with respect to the each
of the Mortgage Loans listed on the Mortgage Loan Schedule attached as
Annex
1
hereto,
the Mortgage Loans listed on Annex
3
hereto
are missing tax service contracts and the Mortgage Loans listed on Annex
4
hereto
are missing flood certification contracts.
A-1
By
its
execution and delivery of this Acknowledgment and Conveyance Agreement, the
Seller agrees that it shall service the Mortgage Loans on behalf of the
Purchaser in accordance with the terms and conditions contained in this
Servicing Agreement.
This
Acknowledgment and Conveyance Agreement may be executed simultaneously in any
number of counterparts. Each counterpart shall be deemed an original, and all
such counterparts shall constitute one and the same instrument.
|
AMERICAN
HOME MORTGAGE CORP.,
as Seller
|
||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
|
XXXXXX
BROTHERS BANK, FSB, as
Purchaser
|
||
| |
|
|
| By: | ||
|
Name: Xxxx X. Xxxxxx |
||
| Title: Vice President | ||
A-2
Annex
1
to
Acknowledgment
and Conveyance Agreement
MORTGAGE
LOAN SCHEDULE
[Each
Mortgage Loan Schedule shall provide the information required by Exhibit A-2
to
the Purchase Agreement with respect to each Mortgage Loan as of the related
Cut-Off Date]
A-3
Annex
2
to
Acknowledgment
and Conveyance Agreement
POOL
CHARACTERISTICS
The
Seller hereby represents and warrants to the Purchaser, as to each Mortgage
Loan, that as of __________ __, 200__ or as of such other date specifically
provided therein:
Pool
Characteristics.
With
respect to the aggregate unpaid principal balance of all of the Mortgage Loans
as of the Closing Date, (a) the Mortgage Loans have original terms of up to
[ ]
years and are secured by real property and improved as follows (i) at least
[ ]%
are attached or detached singe family dwellings, (ii) about [ ]% shall be a
condominium project and (iii) approximately [ ]% shall be two-to-four family
residences, (b) with respect to each ARM Mortgage Loan the Index shall be as
set
forth on the Mortgage Loan Schedule, (c) with respect to the aggregate unpaid
principal balance of the Mortgage Loans being delivered, (i) at least [ ]%
shall
be purchase money mortgage loans, (ii) [ ]% shall be cash-out refinance mortgage
loans, and (iii) [ ]% were rate and term refinance loans, (d) the Mortgaged
Properties are located as follows (i) approximately [ ]% will be in [ ], (ii)
about [ ]% will be in [ ], (iii) approximately [ ]% will be in [ ] and (ix)
no
more than [ ]% of the Mortgaged Properties will be located in any other state.
With respect to the aggregate unpaid principal balance of the Mortgage Loans,
at
the time of origination, (a) at least [ ]% of the Mortgaged Properties were
owner-occupied primary residences, (b) not more than [ ]% were investment
properties and (c) no more than [ ]% were second home properties. With respect
to the aggregate unpaid principal balance of the Mortgage Loans, (a) [ ]% will
have no ratio documentation, (b) [ ]% will have stated documentation, (c) [
]%
will have documentation which is lacking income verification documentation,
(d)
[ ]% will have documentation lacking income and asset verification, (e) [ ]%
will have full documentation, (f) [ ]% will have no documentation and (g) [
]%
will have documentation which is lacking asset verification documentation.
At
origination, the weighted average loan-to-value ratio with respect to the
Mortgage Loans being delivered, on the Closing Date, is not greater than [
]%.
With respect to the aggregate unpaid principal balance of the Mortgage Loans
being delivered, the weighted average FICO score is at least [ ] and no
Mortgagor shall have a FICO score less than [ ]. The Mortgage Loans have the
approximate characteristics as set forth in the Purchase Price and Terms
Agreement.
A-4
Annex
3
to
Acknowledgment
and Conveyance Agreement
MORTGAGE
LOANS MISSING TAX SERVICE CONTRACTS
A-5
Annex
4
to
Acknowledgment
and Conveyance Agreement
MORTGAGE
LOANS MISSING FLOOD CERTIFICATION CONTRACTS
A-6
EXHIBIT
A-2
MORTGAGE
LOAN SCHEDULE DATA FIELDS
|
(1)
|
the
Seller’s Mortgage Loan identifying
number;
|
|
(2)
|
the
Mortgagor’s and Co-Mortgagor’s (if applicable)
names;
|
|
(3)
|
the
street address of the Mortgaged Property, including the city, state,
zip
code, county, lot number, block number and section
number;
|
|
(4)
|
a
code indicating whether the Mortgaged Property is a single family
residence, a 2 family dwelling, a 3-4 family dwelling, a manufactured
home, a PUD, a townhouse, a unit in a condominium project, a co-operative,
a mixed-use property, land, or a non-residential
property;
|
|
(5)
|
a
code indicating the loan is a fixed rate or ARM Mortgage Loan (to
be
provided in accordance with Standard and Poor’s loan type
requirements-Field 14);
|
|
(6)
|
Product
Description (to be provided in accordance with Standard and Poor’s
description categories-Field 7);
|
|
(7)
|
a
code indicating the lien status of the Mortgage
Loan;
|
|
(8)
|
the
original months to maturity or the remaining months to maturity from
the
Cut-off Date, in any case based on the original amortization schedule,
and
if different, the maturity expressed in the same manner but based
on the
actual amortization schedule;
|
|
(9)
|
the
Loan to Value Ratio at origination;
|
|
(10)
|
the
combined Loan to Value Ratio at
origination;
|
|
(11)
|
the
Mortgage Interest Rate as of the Cut-off
Date;
|
|
(12)
|
the
Payment and Rate Adjustment Frequencies (if
applicable);
|
|
(13)
|
the
Index (if applicable);
|
|
(14)
|
the
initial Interest Rate Adjustment Date (if
applicable);
|
|
(15)
|
the
initial Payment Adjustment Date (if
applicable);
|
|
(16)
|
the
next Interest Rate Adjustment Date (if
applicable);
|
|
(17)
|
the
next Payment Adjustment Date (if
applicable);
|
|
(18)
|
the
Gross Margin (if applicable);
|
|
(19)
|
the
minimum Mortgage Interest Rate under the terms of the Mortgage Note
(if
applicable);
|
A-1
|
(20)
|
Mortgage
Interest Rate adjustment frequencies (if
applicable);
|
|
(21)
|
the
maximum Mortgage Interest Rate under the terms of the Mortgage Note
(if
applicable);
|
|
(22)
|
the
Mortgage Interest Rate adjustment cap at the initial Interest Rate
Adjustment Date (if applicable);
|
|
(23)
|
the
Mortgage Interest Rate adjustment cap at all subsequent Interest
Rate
Adjustment Dates (if applicable);
|
|
(24)
|
the
Lifetime Mortgage Interest Rate Cap (if applicable);
|
|
(25)
|
the
rounding provisions under the terms of the Mortgage Note (if
applicable);
|
|
(26)
|
the
lookback provisions (#of days) under the terms of the Mortgage Note
(if
applicable);
|
|
(27)
|
negative
amortization indicator and limit;
|
|
(28)
|
the
date on which the first payment is
due;
|
|
(29)
|
the
original term of the Mortgage Loan;
|
|
(30)
|
the
stated maturity date;
|
|
(31)
|
the
amount of the Monthly Payment;
|
|
(32)
|
the
Annual Payment Cap expressed as a percentage (for Arms
only);
|
|
(33)
|
the
next due date as of the Cut-off
Date;
|
|
(34)
|
the
original principal amount of the Mortgage
Loan;
|
|
(35)
|
the
Senior and Subordinate balances (if
applicable);
|
|
(36)
|
the
closing date of the Mortgage Loan;
|
|
(37)
|
the
principal balance of the Mortgage Loan as of the close of business
on the
Cut-off Date; after deduction of payments of principal actually received
on or before the Cut-off Date;
|
|
(38)
|
monthly
payment histories on current and prior mortgages (24 months if
available);
|
|
(39)
|
prior
foreclosure history (for the past 24
months);
|
|
(40)
|
prior
bankruptcy history (for the past 24
months);
|
|
(41)
|
the
loan purpose code;
|
|
(42)
|
the
occupancy code;
|
|
(43)
|
the
loan documentation type, (to be provided in conformance with Standard
and
Poor’s documentation categories- Field
5);
|
A-2
|
(44)
|
Asset
Verification (Purchase Money loans only), (yes or
no);
|
|
(45)
|
a
code indicating the Credit Grade of the Mortgage
Loan;
|
|
(46)
|
the
debt to income ratio;
|
|
(47)
|
the
Mortgagor’s and Co-Mortgagor’s (if applicable) social security
numbers;
|
|
(48)
|
the
Mortgagor’s and Co-Mortgagor’s (if applicable) original FICO score and the
Next Generation FICO score for new credit
scores;
|
|
(49)
|
the
date of the FICO score;
|
|
(50)
|
the
Mortgagor’s mailing address if different from Number (3)
above;
|
|
(51)
|
the
Mortgagor’s home telephone number;
|
|
(52)
|
the
Mortgagor’s business telephone
number;
|
|
(53)
|
the
purchase price of the Mortgaged Property (if a
purchase);
|
|
(54)
|
the
Appraisal date and the Appraisal value of the Mortgaged
Property;
|
|
(55)
|
the
Mortgagor’s and Co-Mortgagor’s (if applicable)
race;
|
|
(56)
|
the
Mortgagor’s and Co-Mortgagor’s (if applicable)
ethnicity;
|
|
(57)
|
the
Mortgagor’s and Co-Mortgagor’s (if applicable)
gender;
|
|
(58)
|
the
Mortgagor’s and Co-Mortgagor’s (if applicable) date of birth;
|
|
(59)
|
the
number of bedrooms;
|
|
(60)
|
rental
income per unit;
|
|
(61)
|
the
combined annual income;
|
|
(62)
|
the
application date;
|
|
(63)
|
the
broker’s name;
|
|
(64)
|
the
broker’s firm name;
|
|
(65)
|
the
appraiser’s name;
|
|
(66)
|
the
appraiser’s firm name;
|
|
(67)
|
the
settlement agent;
|
|
(68)
|
the
origination channel (wholesale, retail, or
correspondent);
|
A-3
|
(69)
|
flood
insurance contract provider;
|
|
(70)
|
tax
service contract provider;
|
|
(71)
|
number
of units;
|
|
(72)
|
as
of date;
|
|
(73)
|
amortization
term;
|
|
(74)
|
balloon
flag;
|
|
(75)
|
prepayment
penalty flag;
|
|
(76)
|
prepayment
penalty term and prepayment penalty description (i.e.- 6 months interest,
set percentage of UPB);
|
|
(77)
|
payment
history current loan;
|
|
(78)
|
payment
history previous loan and all refinanced
loans;
|
|
(79)
|
mortgage
insurance provider, or code for
LPMI;
|
|
(80)
|
mortgage
insurance coverage percentage;
|
|
(81)
|
mortgage
insurance cost;
|
|
(82)
|
mortgage
insurance certificate number;
|
|
(83)
|
number
of borrowers;
|
|
(84)
|
first
time home buyer flag;
|
|
(85)
|
the
year in which the Mortgaged Property was
built;
|
|
(86)
|
the
monthly tax and insurance payment;
|
|
(87)
|
the
monthly servicing fee;
|
|
(88)
|
the
escrow balance as of the Cut-off Date;
|
|
(89)
|
The
MIN number assigned to each Mortgage Loan, if
applicable;
|
|
(90)
|
a
code indicating the Appraisal Type (Tax Assessment, BPO, Drive-By
Form
704, URAR, Form 2065, Form 2055 (Exterior only), Form 2055 (Interior
Inspection), or AVM;
|
|
(91)
|
if
the Appraisal Type in #90 is an AVM, then a description of the AVM
type;
|
|
(92)
|
a
code indicating whether the Borrower(s) is self-employed (yes or
no);
|
|
(93)
|
a
section 32 flag and the origination points and or
fees;
|
A-4
|
(94)
|
a
code indicating if a loan is assumable (yes or
no);
|
|
(95)
|
a
flag indicating if NEXTGEN FICO Score is being supplied as the FICO
score
(yes or no);
|
|
(96)
|
a
flag indicating HIGH COST LOAN or COVERED LOAN governed by any
anti-predatory lending laws (only required if the loan falls into
one of
these categories);
|
|
(97)
|
APR
information; and
|
|
(98)
|
HOEPA
status.
|
A-5
EXHIBIT
B
CONTENTS
OF EACH MORTGAGE FILE
With
respect to each Mortgage Loan, the Mortgage File shall include each of the
following items, which shall be available for inspection by the Purchaser and
any prospective Purchaser, and which shall be delivered to the Purchaser
pursuant to Section 2 of the Purchase Agreement to which this Exhibit is
attached (the “Agreement”):
|
(a)
|
the
original Mortgage Note bearing all intervening endorsements and including
any riders to the Mortgage Note endorsed “Pay to the order of
__________________________________, without recourse and signed in
the
name of the previous owner by an authorized
officer;
|
|
(b)
|
the
original of any guarantee executed in connection with the Mortgage
Note
(if any);
|
|
(c)
|
the
original Mortgage with evidence of recording thereon or, copies certified
by the related recording office or if the original Mortgage has not
yet
been returned from the recording office, a copy certified by the
Seller
indicating that such Mortgage has been delivered for recording. The
return
directions for the original Mortgage should indicate, when recorded,
mail
to the Seller;
|
|
(d)
|
the
originals of all assumption, modification, consolidation or extension
agreements, (or, if an original of any of these documents has not
been
returned from the recording office, a certified copy thereof, the
original
to be delivered to the Seller forthwith after return from such recording
office) with evidence of recording thereon, if
any;
|
|
(e)
|
the
original Assignment of Mortgage as appropriate, in recordable form,
for
each Mortgage Loan to ____________________________,
|
|
(f)
|
the
originals of any intervening recorded Assignments of Mortgage showing
a
complete chain of assignment from origination to the Seller, including
warehousing assignments, with evidence of recording thereon, (or,
if any
original intervening Assignment of Mortgage has not been returned
from the
recording office, a certified copy thereof, the original to be delivered
to the Custodian forthwith after return from such recording office);
|
|
(g)
|
with
respect to each Mortgage Loan, the original mortgage title insurance
policy or attorney’s opinion of title and abstract or a title commitment
or title binder if an original title insurance policy has not been
issued,
or a duplicate copy of an original title insurance policy;
and
|
|
(h)
|
the
original or copy of the PMI policy or certificate of insurance, where
required.
|
B-1
For
each
Cooperative Loan, the original or a seller certified true copy of the following:
(i) the original Pledge Agreement entered into by the Mortgagor with respect
to
such Cooperative Loan, (ii) UCC-3 assignment in blank (or equivalent
instrument), sufficient under the laws of the jurisdiction where the related
Cooperative Apartment is located to reflect of record the sale and assignment
of
the Cooperative Loan to the Buyer, (iii) original assignment of Pledge Agreement
in blank showing a complete chain of assignment from the originator of the
related Cooperative Loan to the Seller, (iv) original Form UCC-1 and any
continuation statements with evidence of filing thereon with respect to such
Cooperative Loan, (v) Cooperative Shares with a Stock Certificate in blank
attached, (vi) original Proprietary Lease, (vii) original Assignment of
Proprietary Lease, in blank, and all intervening assignments thereof, (viii)
original recognition agreement of the interests of the mortgagee with respect
to
the Cooperative Loan by the Cooperative, and (ix) originals of any assumption,
consolidation or modification agreements relating to any of the items specified
above.
In
the
event an Officer’s Certificate of the Seller is delivered to the Purchaser
because of a delay caused by the public recording office in returning any
recorded document, the Seller shall deliver to the Purchaser, within 90 days
of
the Closing Date, an Officer’s Certificate which shall (i) identify the recorded
document, (ii) state that the recorded document has not been delivered to the
Custodian due solely to a delay caused by the public recording office, (iii)
state the amount of time generally required by the applicable recording office
to record and return a document submitted for recordation, and (iv) specify
the
date the applicable recorded document will be delivered to Custodian the
applicable recorded document by the date specified in (iv) above. An extension
of the date specified in (iv) above may be requested from the Purchaser, which
consent shall not be unreasonably withheld.
B-2
EXHIBIT
C
SELLER’S
OFFICER’S CERTIFICATE
I,
____________________, hereby certify that I am the duly elected [Vice] President
of American Home Mortgage Corp., a state chartered institution organized under
the laws of the state of New York, (the “Company”) and further as
follows:
|
1.
|
Attached
hereto as Exhibit 1 is a true, correct and complete copy of the charter
of
the Company which is in full force and effect on the date hereof
and which
has been in effect without amendment, waiver, rescission or
modification.
|
|
2.
|
Attached
hereto as Exhibit 2 is a true, correct and complete copy of the bylaws
of
the Company which are in effect on the date hereof and which have
been in
effect without amendment, waiver, rescission or
modification.
|
|
3.
|
Attached
hereto as Exhibit 3 is an original certificate of good standing of
the
Company issued within ten days of the date hereof, and no event has
occurred since the date thereof which would impair such
standing.
|
|
4.
|
Attached
hereto as Exhibit 4 is a true, correct and complete copy of the corporate
resolutions of the Board of Directors of the Company authorizing
the
Company to execute and deliver each of the Flow Mortgage Loan Purchase,
Warranties and Servicing Agreement, Group No. 2007-FLOW dated May
1, 2007,
by and between the Company and Xxxxxx Brothers Bank, FSB (the “Purchaser”)
(the “Purchase Agreement”) and to endorse the Mortgage Notes and execute
the Assignments of Mortgages by original or facsimile signature,
and such
resolutions are in effect on the date hereof and have been in effect
without amendment, waiver, rescission or
modification.
|
|
5.
|
Either
(i) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery
and
performance by the Company of or compliance by the Company with the
Purchase Agreement, the sale of the mortgage loans or the consummation
of
the transactions contemplated by the agreements; or (ii) any required
consent, approval, authorization or order has been obtained by the
Company.
|
|
6.
|
Neither
the consummation of the transactions contemplated by, nor the fulfillment
of the terms of the Purchase Agreement conflicts or will conflict
with or
results or will result in a breach of or constitutes or will constitute
a
default under the charter or by-laws of the Company, the terms of
any
indenture or other agreement or instrument to which the Company is
a party
or by which it is bound or to which it is subject, or any statute
or
order, rule, regulations, writ, injunction or decree of any court,
governmental authority or regulatory body to which the Company is
subject
or by which it is bound.
|
C-1
|
7.
|
There
is no action, suit, proceeding or investigation pending or, to the
best of
my knowledge, threatened against the Company which, in my judgment,
either
in any one instance or in the aggregate, may result in any material
adverse change in the business, operations, financial condition,
properties or assets of the Company or in any material impairment
of the
right or ability of the Company to carry on its business substantially
as
now conducted or in any material liability on the part of the Company
or
which would draw into question the validity of the Purchase Agreement
or
the mortgage loans or of any action taken or to be taken in connection
with the transactions contemplated hereby, or which would be likely
to
impair materially the ability of the Company to perform under the
terms of
the Purchase Agreement.
|
|
8.
|
Each
person listed on Exhibit 5 attached hereto who, as an officer or
representative of the Company, signed (a) the Purchase Agreement
and (b)
any other document delivered prior hereto or on the date hereof in
connection with any purchase described in the agreements set forth
above
was, at the respective times of such signing and delivery, and is
now, a
duly elected or appointed, qualified and acting officer or representative
of the Company, who holds the office set forth opposite his or her
name on
Exhibit 5, and the signatures of such persons appearing on such documents
are their genuine signatures.
|
|
9.
|
The
Company is duly authorized to engage in the transactions described
and
contemplated in the Purchase
Agreement.
|
|
10.
|
The
Mortgage Loans are not subject to any security interest, claim, pledge,
hypothecation or lien.
|
C-2
IN
WITNESS WHEREOF, I have hereunto signed my name and affixed the seal of the
Company.
|
Dated:
_____________________
|
By:
|
||
|
[Seal]
|
|
||
|
Name:
|
|
||
| Title: |
[Vice] President |
I,
________________________, an [Assistant] Secretary of American Home Mortgage
Corp., hereby certify that ____________ is the duly elected, qualified and
acting [Vice] President of the Company and that the signature appearing above
is
[her] [his] genuine signature.
IN
WITNESS WHEREOF, I have hereunto signed my name.
|
Dated:
_____________________
|
By:
|
||
|
[Seal]
|
|
||
|
Name:
|
|
||
| Title: |
[Vice] President |
C-3
EXHIBIT
5
to
Company’s
Officer’s Certificate
|
Name
|
Title
|
Signature
|
||
|
|
||||
|
|
||||
|
|
||||
|
|
||||
|
|
C-4
EXHIBIT
D
FORM
OF OPINION OF COUNSEL TO THE SELLER
(date)
Xxxxxx
Brothers Bank, FSB
000
Xxxxxxx Xxxxxx
00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Dear
Sirs:
You
have
requested [our] [my] opinion, as [Assistant] General Counsel to American Home
Mortgage Corp., (the “Company”), with respect to certain matters in connection
with the sale and servicing by the Company of the Mortgage Loans pursuant to
that certain Flow Mortgage Loan Purchase, Warranties and Servicing Agreement
by
and between the Company and Xxxxxx Brothers Bank, FSB (the “Purchaser”), Group
No. [200_-FLOW] dated as of [_____ __, 20__] (the “Purchase Agreement”) which
sale is in the form of whole loans. Capitalized terms not otherwise defined
herein have the meanings set forth in the Purchase Agreement.
[We]
[I]
have examined the following documents:
|
1.
|
the
Purchase Agreement;
|
|
2.
|
the
form of Assignment of Mortgage;
|
|
3.
|
the
form of endorsement of the Mortgage Notes;
and
|
|
4.
|
such
other documents, records and papers as we have deemed necessary and
relevant as a basis for this
opinion.
|
To
the
extent [we] [I] have deemed necessary and proper, [we] [I] have relied upon
the
representations and warranties of the Company contained in the Purchase
Agreement. [We] [I] have assumed the authenticity of all documents submitted
to
[us] [me] as originals, the genuineness of all signatures, the legal capacity
of
natural persons and the conformity to the originals of all
documents.
D-1
Based
upon the foregoing, it is [our] [my] opinion that:
|
1.
|
The
Company is a type corporation duly organized, validly existing and
in good
standing under the laws of the [the state of its incorporation] and
is
qualified to transact business in, and is in good standing under,
the laws
of [the state of incorporation].
|
|
2.
|
The
Company has the power to engage in the transactions contemplated
by the
Purchase Agreement and all requisite power, authority and legal right
to
execute and deliver the Purchase Agreement, and to perform and observe
the
terms and conditions of such Purchase
Agreement
|
|
3.
|
The
Purchase Agreement has been duly authorized, executed and delivered
by the
Company and is a legal, valid and binding agreement enforceable in
accordance with its respective terms against the Company, subject
to
bankruptcy laws and other similar laws of general application affecting
rights of creditors and subject to the application of the rules of
equity,
including those respecting the availability of specific performance,
none
of which will materially interfere with the realization of the benefits
provided thereunder or with the Purchaser’s ownership of the Mortgage
Loans.
|
|
4.
|
The
Company has been duly authorized to allow any of its officers to
execute
any and all documents by original signature in order to complete
the
transactions contemplated by the Purchase Agreement [and by original
[or
facsimile] signature in order to execute the endorsements to the
Mortgage
Notes and the Assignments of Mortgages, and the original [or facsimile]
signature of the officer at the Company executing the endorsements
to the
Mortgage Notes and the Assignments of Mortgages represents the legal
and
valid signature of said officer of the
Company].
|
|
5.
|
Either
(i) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery
and
performance by the Company of or compliance by the Company with the
Purchase Agreement or the sale of the Mortgage Loans or the consummation
of the transactions contemplated by the Purchase Agreement; or (ii)
any
required consent, approval, authorization or order has been obtained
by
the Company.
|
|
6.
|
Neither
the consummation of the transactions contemplated by, nor the fulfillment
of the terms of, the Purchase Agreement conflicts or will conflict
with or
results or will result in a breach of or constitutes or will constitute
a
default under the charter or by-laws of the Company, the terms of
any
indenture or other agreement or instrument to which the Company is
a party
or by which it is bound or to which it is subject, or violates any
statute
or order, rule, regulations, writ, injunction or decree of any court,
governmental authority or regulatory body to which the Company is
subject
or by which it is bound.
|
D-2
|
7.
|
There
is no action, suit, proceeding or investigation pending or, to the
best of
[our] [my] knowledge, threatened against the Company which, in [our]
[my]
judgment, either in any one instance or in the aggregate, may result
in
any material adverse change in the business, operations, financial
condition, properties or assets of the Company or in any material
impairment of the right or ability of the Company to carry on its
business
substantially as now conducted or in any material liability on the
part of
the Company or which would draw into question the validity of the
Purchase
Agreement, or the Mortgage Loans or of any action taken or to be
taken in
connection with the transactions contemplated thereby, or which would
be
likely to impair materially the ability of the Company to perform
under
the terms of the Purchase
Agreement.
|
|
8.
|
The
sale of each Mortgage Note and Mortgage as and in the manner contemplated
by the Purchase Agreement is sufficient to fully transfer to the
Purchaser
all right, title and interest of the Company thereto as noteholder
and
mortgagee.
|
|
9.
|
The
Mortgages have been duly assigned and the Mortgage Notes have been
duly
endorsed as provided in the Purchase Agreement. The Assignments of
Mortgage are in recordable form, except for the insertion of the
name of
the assignee, and upon the name of the assignee being inserted, are
acceptable for recording under the laws of the state where each related
Mortgaged Property is located. The endorsement of the Mortgage Notes,
the
delivery to the Purchaser, or its designee, of the Assignments of
Mortgage, and the delivery of the original endorsed Mortgage Notes
to the
Purchaser, or its designee, are sufficient to permit the Purchaser
to
avail itself of all protection available under applicable law against
the
claims of any present or future creditors of the Company, and are
sufficient to prevent any other sale, transfer, assignment, pledge
or
hypothecation of the Mortgages and the Mortgage Notes by the Company
from
being enforceable.
|
This
opinion is given to you for your sole benefit, and no other person or entity
is
entitled to rely hereon except that the purchaser or purchasers to which you
initially and directly resell the Mortgage Loans may rely on this opinion as
if
it were addressed to them as of its date.
| Very truly yours, | ||
|
[Name]
[Assistant]
General Counsel
|
||
D-3
EXHIBIT
E
RESERVED
E-1
EXHIBIT
F
SECURITY
RELEASE CERTIFICATION
I.
Release
of Security Interest
The
financial institution named below hereby relinquishes any and all right, title
and interest it may have in all Mortgage Loans to be purchased by Xxxxxx
Brothers Bank, FSB from the Seller named below pursuant to that certain Flow
Mortgage Loan Purchase, Warranties and Servicing Agreement, Group No. 2007-FLOW,
dated as of May 1, 2007 and certifies that all notes, mortgages, assignments
and
other documents in its possession relating to such Mortgage Loans have been
delivered and released to the Seller named below or its designees, as of the
date and time of the sale of such Mortgage Loans to Xxxxxx Brothers Bank, FSB
pursuant to the Acknowledgment and Conveyance Agreement dated as of
__________.
Name
and
Address of Financial Institution
|
(name)
|
|||
|
(Address)
|
By:
F-1
II.
Certification
of Release
The
Seller named below hereby certifies to Xxxxxx Capital, A Division of Xxxxxx
Brothers Holdings Inc., that, as of the date and time of the sale of the
above-mentioned Mortgage Loans to Xxxxxx Brothers Bank, FSB, the security
interests in the Mortgage Loans released by the above-named financial
institution comprise all security interests relating to or affecting any and
all
such Mortgage Loans. The Seller warrants that, as of such time, there are and
will be no other security interests affecting any or all of such Mortgage
Loans.
|
AMERICAN
HOME MORTGAGE CORP.
|
||
| |
|
|
| By: | ||
|
Name: |
||
| Date: | ||
F-2
EXHIBIT
G
EXHIBIT
C-2
CUSTODIAL
ACCOUNT LETTER AGREEMENT
May
___,
2007
| To: |
________________________
________________________
________________________
(the
“Depository”)
|
As
Seller
under the Flow Mortgage Loan Purchase, Warranties and Servicing Agreement,
dated
as of May 1, 2007 (the “Agreement”), we hereby authorize and request you to
establish an account, as a Custodial Account pursuant to Section 4(d) of the
Agreement, to be designated as “American Home Mortgage Corp., in trust for
Xxxxxx Brothers Bank, FSB, purchaser of Conventional Residential Adjustable
and
Fixed Rate Mortgage Loans, Group No. 2007-FLOW.” All deposits in the account
shall be subject to withdrawal therefrom by order signed by the Seller. You
may
refuse any deposit which would result in violation of the requirement that
the
account be fully insured as described below. This letter is submitted to you
in
duplicate. Please execute and return one original to us.
|
AMERICAN
HOME MORTGAGE CORP.
|
||
| |
|
|
| By: | ||
| Name: |
|
|
| Title: |
|
|
| Date: |
|
|
|
|
||
G-1
The
undersigned, as Depository, hereby certifies that the above described account
has been established under Account Number __________, at the office of the
Depository indicated above, and agrees to honor withdrawals on such account
as
provided above. The full amount deposited at any time in the account will be
insured by the Federal Deposit Insurance Corporation through the Bank Insurance
Fund (“BIF”) or the Savings Association Insurance Fund (“SAIF”).
|
Depository |
||
| |
|
|
| By: | ||
| Name: |
|
|
| Title: |
|
|
| Date: |
|
|
|
|
||
G-2
EXHIBIT
H
ESCROW
ACCOUNT LETTER AGREEMENT
May__,
2007
| To: |
________________________
________________________
________________________
(the
“Depository”)
|
As
Seller
under the Flow Mortgage Loan Purchase, Warranties and Servicing Agreement,
dated
as of May 1, 2007 (the “Agreement”), we hereby authorize and request you to
establish an account, as an Escrow Account pursuant to Section 4(f) of the
Agreement, to be designated as “American Home Mortgage Corp., in trust for
Xxxxxx Brothers Bank, FSB, purchaser of Conventional Residential Adjustable
and
Fixed Rate Mortgage Loans, Group No. 2007-FLOW, and various Mortgagors.” All
deposits in the account shall be subject to withdrawal therefrom by order signed
by the Seller. You may refuse any deposit which would result in violation of
the
requirement that the account be fully insured as described below. This letter
is
submitted to you in duplicate. Please execute and return one original to
us.
|
AMERICAN
HOME MORTGAGE CORP.
|
||
| |
|
|
| By: | ||
| Name: |
|
|
| Title: |
|
|
| Date: |
|
|
|
|
||
H-1
The
undersigned, as Depository, hereby certifies that the above described account
has been established under Account Number ______, at the office of the
Depository indicated above, and agrees to honor withdrawals on such account
as
provided above. The full amount deposited at any time in the account will be
insured by the Federal Deposit Insurance Corporation through the Bank Insurance
Fund (“BIF”) or the Savings Association Insurance Fund (“SAIF”).
|
Depository |
||
| |
|
|
| By: | ||
| Name: |
|
|
| Title: |
|
|
| Date: |
|
|
|
|
||
H-2
EXHIBIT
I-1
FORM
OF
MONTHLY REMITTANCE ADVICE
|
FIELD
NAME
|
DESCRIPTION
|
FORMAT
|
||
|
INVNUM
|
INVESTOR
LOAN NUMBER
|
Number
no decimals
|
||
|
SERVNUM
|
SERVICER
LOAN NUMBER, REQUIRED
|
Number
no decimals
|
||
|
BEGSCHEDBAL
|
BEGINNING
SCHEDULED BALANCE FOR SCHED/SCHED
|
Number
two decimals
|
||
|
BEGINNING
TRAIL BALANCE FOR ACTUAL/ACTUAL,
|
||||
|
REQUIRED
|
||||
|
SCHEDPRIN
|
SCHEDULED
PRINCIPAL AMOUNT FOR SCHEDULED/SCHEDULED
|
Number
two decimals
|
||
|
ACTUAL
PRINCIPAL COLLECTED FOR ACTUAL/ACTUAL,
|
||||
|
REQUIRED,
.00 IF NO COLLECTIONS
|
||||
|
CURT1
|
CURTAILMENT
1 XXXXXX, .00 IF NOT APPLICABLE
|
Number
two decimals
|
||
|
CURT1DATE
|
CURTAILMENT
1 DATE, BLANK IF NOT APPLICABLE
|
DD-MMM-YY
|
||
|
CURT1ADJ
|
CURTAILMENT
1 ADJUSTMENT, .00 IF NOT APPLICABLE
|
Number
two decimals
|
||
|
CURT2
|
CURTAILMENT
2 XXXXXX, .00 IF NOT APPLICABLE
|
Number
two decimals
|
||
|
CURT2DATE
|
CURTAILMENT
2 DATE, BLANK IF NOT APPLICABLE
|
DD-MMM-YY
|
||
|
CURT2ADJ
|
CURTAILMENT
2 ADJUSTMENT, .00 IF NOT APPLICABLE
|
Number
two decimals
|
||
|
LIQPRIN
|
PAYOFF,
LIQUIDATION PRINCIPAL, .00 IF NOT APPLICABLE
|
Number
two decimals
|
||
|
OTHPRIN
|
OTHER
PRINCIPAL, .00 IF NOT APPLICABLE
|
Number
two decimals
|
||
|
PRINREMIT
|
TOTAL
PRINCIPAL REMITTANCE AMOUNT, .00 IF NOT APPLICABLE
|
Number
two decimals
|
||
|
INTREMIT
|
NET
INTEREST REMIT, INCLUDE PAYOFF INTEREST,
|
Number
two decimals
|
||
|
.00
IF NOT APPLICABLE
|
||||
|
TOTREMIT
|
TOTAL
REMITTANCE AMOUNT, .00 IF NOT APPLICABLE
|
Number
two decimals
|
||
|
ENDSCHEDBAL
|
ENDING
SCHEDULED BALANCE FOR SCHEDULED/SCHEDULED
|
Number
two decimals
|
||
|
ENDING
TRIAL BALANCE FOR ACTUAL/ACTUAL
|
||||
|
.00
IF PAIDOFF, LIQUIDATED OR FULL CHARGEOFF
|
||||
|
ENDACTBAL
|
ENDING
TRIAL BALANCE
|
Number
two decimals
|
||
|
.00
IF PAIDOFF, LIQUIDATED OR FULL CHARGEOFF
|
||||
|
ENDDUEDATE
|
ENDING
ACTUAL DUE DATE, NOT LAST PAID INSTALLMENT
|
DD-MMM-YY
|
||
|
ACTCODE
|
60
IF PAIDOFF, BLANK IF NOT APPLICABLE
|
Number
no decimals
|
||
|
ACTDATE
|
ACTUAL
PAYOFF DATE, BLANK IF NOT APPLICABLE
|
DD-MMM-YY
|
||
|
INTRATE
|
INTEREST
RATE, REQUIRED
|
Number
seven decimals
Example
.0700000 for 7.00%
|
||
|
SFRATE
|
SERVICE
FEE RATE, REQUIRED
|
Number
seven decimals
Example
.0025000 for .25%
|
||
|
PTRATE
|
PASS
THRU RATE, REQUIRED
|
Number
seven decimals
Example
.0675000 for 6.75%
|
||
|
PIPMT
|
P&I
CONSTANT, REQUIRED
|
Number
two decimals
|
||
|
.00
IF PAIDOFF
|
I-1-1
EXHIBIT
I-2
STANDARD
LAYOUT FOR MONTHLY DEFAULTED LOAN REPORT
|
Data
Field
|
Format
|
Data
Description
|
||||
|
%
of MI coverage
|
NUMBER(6,5)
|
The
percent of coverage provided by the PMI company in the event of
loss on a
defaulted loan.
|
||||
|
Actual
MI claim filed date
|
DATE(MM/DD/YYYY)
|
Actual
date that the claim was submitted to the PMI company.
|
||||
|
Actual
bankruptcy start date
|
DATE(MM/DD/YYYY)
|
Actual
date that the bankruptcy petition is filed with the
court.
|
||||
|
Actual
MI claim amount filed
|
NUMBER(15,2)
|
The
amount of the claim that was filed by the servicer with the PMI
company.
|
||||
|
Actual
discharge date
|
DATE(MM/DD/YYYY)
|
Actual
date that the Discharge Order is entered in the bankruptcy
docket.
|
||||
|
Actual
due date
|
DATE(MM/DD/YYYY)
|
Actual
due date of the next outstanding payment amount due from the
mortgagor.
|
||||
|
Actual
eviction complete date
|
DATE(MM/DD/YYYY)
|
Actual
date that the eviction proceedings are completed by local
counsel.
|
||||
|
Actual
eviction start date
|
DATE(MM/DD/YYYY)
|
Actual
date that the eviction proceedings are commenced by local
counsel.
|
||||
|
Actual
first legal date
|
DATE(MM/DD/YYYY)
|
Actual
date that foreclosure counsel filed the first legal action as defined
by
state statute.
|
||||
I-2-1
|
Actual
redemption end date
|
DATE(MM/DD/YYYY)
|
Actual
date that the foreclosure redemption period expires.
|
||||
|
Bankruptcy
chapter
|
VARCHAR2(2)
|
7=
Chapter 7 filed
12=
Chapter 12 filed
|
11=
Chapter 11 filed
13=
Chapter 13 filed
|
Chapter
of bankruptcy filed.
|
||
|
Bankruptcy
flag
|
VARCHAR2(2)
|
Y=Active
Bankruptcy
|
N=No
Active Bankruptcy
|
Servicer
defined indicator that identifies that the property is an asset
in an
active bankruptcy case.
|
||
|
Bankruptcy
Case Number
|
VARCHAR2(15)
|
The
court assigned case number of the bankruptcy filed by a party with
interest in the property.
|
||||
|
MI
claim amount paid
|
NUMBER(15,2)
|
The
amount paid to the servicer by the PMI company as a result of submitting
an MI claim.
|
||||
|
MI
claim funds received date
|
DATE(MM/DD/YYYY)
|
Actual
date that funds were received from the PMI company as a result
of
transmitting an MI claim.
|
||||
|
Current
loan amount
|
NUMBER(10,2)
|
Current
unpaid principal balance of the loan as of the date of reporting
to Aurora
Master Servicing.
|
||||
|
Date
FC sale scheduled
|
DATE(MM/DD/YYYY)
|
Date
that the foreclosure sale is scheduled to be held.
|
||||
|
Date
relief/dismissal granted
|
DATE(MM/DD/YYYY)
|
Actual
date that the dismissal or relief from stay order is entered by
the
bankruptcy court.
|
||||
|
Date
REO offer accepted
|
DATE(MM/DD/YYYY)
|
Actual
date of acceptance of an REO offer.
|
||||
|
Date
REO offer received
|
DATE(MM/DD/YYYY)
|
Actual
date of receipt of an REO offer.
|
||||
|
Delinquency
value
|
NUMBER(10,2)
|
Value
obtained typically from a BPO prior to foreclosure referral not
related to
loss mitigation activity.
|
||||
I-2-2
|
Delinquency
value source
|
VARCHAR2(15)
|
BPO=
Broker's Price Opinion
|
Appraisal=Appraisal
|
Name
of vendor or management company that provided the delinquency valuation
amount.
|
||
|
Delinquency
value date
|
DATE(MM/DD/YYYY)
|
Date
that the delinquency valuation amount was completed by vendor or
property
management company.
|
||||
|
Delinquency
flag
|
VARCHAR2(2)
|
Y=
90+ delinq. Not in FC, Bky or Loss mit
|
N=Less
than 90 days delinquent
|
Servicer
defined indicator that identifies that the loan is delinquent but
is not
involved in loss mitigation, foreclosure, bankruptcy or
REO.
|
||
|
Foreclosure
flag
|
VARCHAR2(2) | Y=Active foreclosure |
N=No
active foreclosure
|
Servicer
defined indicator that identifies that the loan is involved in
foreclosure
proceedings.
|
||
|
Corporate
expense balance
|
NUMBER(10,2)
|
Total
of all cumulative expenses advanced by the servicer for non-escrow
expenses such as but not limited to: FC fees and costs, bankruptcy
fees
and costs, property preservation and property
inspections.
|
||||
|
Foreclosure
attorney referral date
|
DATE(MM/DD/YYYY)
|
Actual
date that the loan was referred to local counsel to begin foreclosure
proceedings.
|
||||
|
Foreclosure
valuation amount
|
NUMBER(15,2)
|
Value
obtained during the foreclosure process. Usually as a result of
a BPO and
typically used to calculate the bid.
|
||||
|
Foreclosure
valuation date
|
DATE(MM/DD/YYYY)
|
Date
that foreclosure valuation amount was completed by vendor or property
management company.
|
||||
I-2-3
|
Foreclosure
valuation source
|
VARCHAR2(80)
|
BPO=
Broker's Price Opinion
|
Appraisal=Appraisal
|
Name
of vendor or management company that provided the foreclosure valuation
amount.
|
||
|
FHA
27011A transmitted date
|
DATE(MM/DD/YYYY)
|
Actual
date that the FHA 27011A claim was submitted to HUD.
|
||||
|
FHA
27011 B transmitted date
|
DATE(MM/DD/YYYY)
|
Actual
date that the FHA 27011B claim was submitted to HUD.
|
||||
|
VA
LGC/ FHA Case number
|
VARCHAR2(15)
|
Number
that is assigned individually to the loan by either HUD or VA at
the time
of origination. The number is located on the Loan Guarantee Certificate
(LGC) or the Mortgage Insurance Certificate (MIC).
|
||||
|
FHA
Part A funds received date
|
DATE(MM/DD/YYYY)
|
Actual
date that funds were received from HUD as a result of transmitting
the
27011A claim.
|
||||
|
Foreclosure
actual sale date
|
DATE(MM/DD/YYYY)
|
Actual
date that the foreclosure sale was held.
|
||||
|
Servicer
loan number
|
VARCHAR2(15)
|
Individual
number that uniquely identifies loan as defined by
servicer.
|
||||
|
Loan
type
|
VARCHAR2(2)
|
1=FHA
Residential
3=Conventional
w/o PMI
5=FHA
Project
7=HUD
235/265
9=Farm
Loan
S=Sub
prime
|
2=VA
Residential
4=Commercial
6=Conventional
w/PMI
8=Daily
Simple Interest Loan
U=Unknown
|
Type
of loan being serviced generally defined by the existence of certain
types
of insurance. (ie: FHA, VA, conventional insured, conventional
uninsured,
SBA, etc.)
|
||
|
Loss
mit approval date
|
DATE(MM/DD/YYYY)
|
The
date determined that the servicer and mortgagor agree to pursue
a defined
loss mitigation alternative.
|
||||
I-2-4
|
Loss
mit flag
|
VARCHAR2(2)
|
Y=
Active loss mitigation
|
N=No
active loss mitigation
|
Servicer
defined indicator that identifies that the loan is involved in
completing
a loss mitigation alternative.
|
||
|
Loss
mit removal date
|
DATE(MM/DD/YYYY)
|
The
date that the mortgagor is denied loss mitigation alternatives
or the date
that the loss mitigation alternative is completed resulting in
a current
or liquidated loan.
|
||||
|
Loss
mit type
|
VARCHAR2(2)
|
L=
Loss Mitigation
NP=Pending
non-performing sale
DI=
Deed in lieu
MO=Modification
SH=Short
sale
|
LT=Litigation
pending
CH=
Charge off
FB=
Forbearance plan
PC=Partial
claim
VA=VA
refunding
|
The
defined loss mitigation alternative identified on the loss mit
approval
date.
|
||
|
Loss
mit value
|
NUMBER(10,2)
|
Value
obtained typically from a BPO prior to foreclosure sale intended
to aid in
the completion of loss mitigation activity.
|
||||
|
Loss
mit value date
|
DATE(MM/DD/YYYY)
|
Name
of vendor or management company that provided the loss mitigation
valuation amount.
|
||||
|
Loss
mit value source
|
VARCHAR2(15)
|
BPO=
Broker's Price Opinion
|
Appraisal=Appraisal
|
Date
that the lost mitigation valuation amount was completed by vendor
or
property management company.
|
||
|
MI
certificate number
|
VARCHAR2(15)
|
A
number that is assigned individually to the loan by the PMI company
at the
time of origination. Similar to the VA LGC/FHA Case Number in purpose.
|
||||
|
LPMI
Cost
|
NUMBER(7,7)
|
The
current premium paid to the PMI company for Lender Paid Mortgage
Insurance.
|
||||
I-2-5
|
Occupancy
status
|
VARCHAR2(1)
|
O=Owner
occupied
U=Unknown
|
T=Tenant
occupied
V=Vacant
|
The
most recent status of the property regarding who if anyone is occupying
the property. Typically a result of a routine property
inspection.
|
||
|
First
Vacancy date/ Occupancy status date
|
DATE(MM/DD/YYYY)
|
The
date that the most recent occupancy status was determined. Typically
the
date of the most recent property inspection.
|
||||
|
Original
loan amount
|
NUMBER(10,2)
|
Amount
of the contractual obligations (ie: note and mortgage/deed of
trust).
|
||||
|
Original
value amount
|
NUMBER(10,2)
|
Appraised
value of property as of origination typically determined through
the
appraisal process.
|
||||
|
Origination
date
|
DATE(MM/DD/YYYY)
|
Date
that the contractual obligations (ie: note and mortgage/deed of
trust) of
the mortgagor was executed.
|
||||
|
FHA
Part B funds received date
|
DATE(MM/DD/YYYY)
|
Actual
date that funds were received from HUD as a result of transmitting
the
27011B claim.
|
||||
|
Post
petition due date
|
DATE(MM/DD/YYYY)
|
The
post petition due date of a loan involved in a chapter 13
bankruptcy.
|
||||
|
Property
condition
|
VARCHAR2(2)
|
1=
Excellent
3=Average
5=Poor
|
2=Good
4=Fair
6=Very
poor
|
Physical
condition of the property as most recently reported to the servicer
by
vendor or property management company.
|
||
|
Property
type
|
VARCHAR2(2)
|
1=Single
family
3=Condo
4=Multifamily
6=Prefabricated
B=Commercial
7=Mobile
home U=Unknown
A=Church
P=PUD
O=Co-op
M=Manufactured housing
CT=Condotel
MU=Mixed use
|
2=Town
house
5=Other
C=Land
only
D=Farm
R=Row
house
24=
2-4 family
|
Type
of property secured by mortgage such as: single family, 2-4 unit,
etc.
|
||
I-2-6
|
Reason
for default
|
VARCHAR2(3)
|
001=Death
of principal mtgr
003=Illness
of mtgr's family member
004=Death
of mtgr's family member
006=Curtailment
of income
008=Abandonment
of property
011=Property
problem
013=Inability
to rent property
015=Other
017=Business
failure
022=Energy-Environment
costs
026=
Payment adjustment
029=Transfer
ownership pending
031=Unable
to contact borrower
|
02=Illness
of principal mtgr
005=Marital
difficulties
007=Excessive
obligations
009=Distant
employee
012=Inability
to sell property
014=Military
service
016=Unemployment
019=Casualty
loss
023=
Servicing problems
027=Payment
dispute
030=Fraud
INC=Incarceration
|
Cause
of delinquency as identified by mortgagor.
|
||
|
REO
repaired value
|
NUMBER(10,2)
|
The
projected value of the property that is adjusted from the "as is"
value
assuming necessary repairs have been made to the property as determined
by
the vendor/property management company.
|
||||
|
REO
list price adjustment amount
|
NUMBER(15,2)
|
The
most recent listing/pricing amount as updated by the servicer for
REO
properties.
|
||||
|
REO
list price adjustment date
|
DATE(MM/DD/YYYY)
|
The
most recent date that the servicer advised the agent to make an
adjustment
to the REO listing price.
|
||||
|
REO
value (as is)
|
NUMBER(10,2)
|
The
value of the property without making any repairs as determined
by the
vendor/property management company.
|
||||
I-2-7
|
REO
actual closing date
|
DATE(MM/DD/YYYY)
|
The
actual date that the sale of the REO property closed
escrow.
|
||||
|
REO
flag
|
VARCHAR2(7)
|
Y=Active
REO
|
N=No
active REO
|
Servicer
defined indicator that identifies that the property is now Real
Estate
Owned.
|
||
|
REO
original list date
|
DATE(MM/DD/YYYY)
|
The
initial/first date that the property was listed with an agent as
an
REO.
|
||||
|
REO
original list price
|
NUMBER(15,2)
|
The
initial/first price that was used to list the property with an
agent as an
REO.
|
||||
|
REO
net sales proceeds
|
NUMBER(10,2)
|
The
actual REO sales price less closing costs paid. The net sales proceeds
are
identified within the HUD1 settlement statement.
|
||||
|
REO
sales price
|
NUMBER(10,2)
|
Actual
sales price agreed upon by both the purchaser and servicer as documented
on the HUD1 settlement statement.
|
||||
|
REO
scheduled close date
|
DATE(MM/DD/YYYY)
|
The
date that the sale of the REO property is scheduled to close
escrow.
|
||||
|
REO
value date
|
DATE(MM/DD/YYYY)
|
Date
that the vendor or management company completed the valuation of
the
property resulting in the REO value (as is).
|
||||
|
REO
value source
|
VARCHAR2(15)
|
BPO=
Broker's Price Opinion
|
Appraisal=Appraisal
|
Name
of vendor or management company that provided the REO value (as
is).
|
||
|
Repay
first due date
|
DATE(MM/DD/YYYY)
|
The
due date of the first scheduled payment due under a forbearance
or
repayment plan agreed to by both the mortgagor and
servicer.
|
||||
|
Repay
next due date
|
DATE(MM/DD/YYYY)
|
The
due date of the next outstanding payment due under a forbearance
or
repayment plan agreed to by both the mortgagor and servicer.
|
||||
I-2-8
|
Repay
plan broken/reinstated/closed date
|
DATE(MM/DD/YYYY)
|
The
servicer defined date upon which the servicer considers that the
plan is
no longer in effect as a result of plan completion or mortgagor's
failure
to remit payments as scheduled.
|
||||
|
Repay
plan created date
|
DATE(MM/DD/YYYY)
|
The
date that both the mortgagor and servicer agree to the terms of
a
forbearance or repayment plan.
|
||||
|
SBO
loan number
|
NUMBER(9)
|
Individual
number that uniquely identifies loan as defined by Aurora Master
Servicing.
|
||||
|
Escrow
balance/advance balance
|
NUMBER(10,2)
|
The
positive or negative account balance that is dedicated to payment
of
hazard insurance, property taxes, MI, etc. (escrow items
only)
|
||||
|
Title
approval letter received date
|
DATE(MM/DD/YYYY)
|
The
actual date that the title approval was received as set forth in
the HUD
title approval letter.
|
||||
|
Title
package HUD/VA date
|
DATE(MM/DD/YYYY)
|
The
actual date that the title package was submitted to either HUD
or
VA.
|
||||
|
VA
claim funds received date
|
DATE(MM/DD/YYYY)
|
The
actual date that funds were received by the servicer from the VA
for the
expense claim submitted by the servicer.
|
||||
|
VA
claim submitted date
|
DATE(MM/DD/YYYY)
|
The
actual date that the expense claim was submitted by the servicer
to the
VA.
|
||||
|
VA
first funds received amount
|
NUMBER(15,2)
|
The
amount of funds received by the servicer from VA as a result of
the
specified bid.
|
||||
|
VA
first funds received date
|
DATE(MM/DD/YYYY)
|
The
date that the funds from the specified bid were received by the
servicer
from the VA.
|
||||
I-2-9
|
VA
XXX submitted date
|
DATE(MM/DD/YYYY)
|
Actual
date that the Notice of Election to Convey was submitted to the
VA.
|
||||
|
Zip
Code
|
VARCHAR2(5)
|
US
postal zip code that corresponds to property location.
|
||||
|
FNMA
Delinquency status code
|
VARCHAR2(3)
24=Drug
seizure
28=Modification
31=Probate
44=Deed-in-lieu
62=VA
no-bid
65=Ch.
7 bankruptcy
|
09=Forbearance
26=Refinance
29=Charge-off
32=Military
indulgence
49=Assignment
63=VA
Refund
66=Ch.
11 bankruptcy
|
17=Preforeclosure
sale
27=Assumption
30=Third-party
sale
43=Foreclosure
61=Second
lien considerations
64=VA
Buydown
67=Ch.
13 bankruptcy
|
The
code that is electronically reported to FNMA by the servicer that
reflects
the current defaulted status of a loan. (ie: 65, 67, 43 or
44)
|
||
|
FNMA
delinquency reason code
|
VARCHAR2(3)
|
001=Death
of principal mtgr
003=Illness
of mtgr's family member
005=Marital
difficulties
007=Excessive
obligations
009=Distant
employee transfer
012=Inability
to sell property
014=Military
service
016=Unemployment
019=Casualty
loss
023=
Servicing problems
027=Payment
dispute
030=Fraud
INC=Incarceration
|
002=Illness
of principal mtgr
004=Death
of mtgr's family member
006=Curtailment
of income
008=Abandonment
of property
011=Property
problem
013=Inability
to rent property
015=Other
017=Business
failure
022=Energy-Environment
costs
026=
Payment adjustment
029=Transfer
ownership pending
031=Unable
to contact borrower
|
The
code that is electronically reported to FNMA by the servicer that
describes the circumstance that appears to be the primary contributing
factor to the delinquency.
|
||
|
Suspense
balance
|
NUMBER(10,2)
|
Money
submitted to the servicer, credited to the mortgagor's account
but not
allocated to principal, interest, escrow,
etc.
|
||||
|
Restricted
escrow balance
|
NUMBER(10,2)
|
Money
held in escrow by the mortgage company through completion of repairs
to
property.
|
||||
|
Investor
number
|
NUMBER
(10,2)
|
Unique
number assigned to a group of loans in the servicing system.
|
||||
I-2-10
EXHIBIT
J
FORM
OF
ANNUAL CERTIFICATION
|
Re:
|
The
[ ] agreement dated as of [ ],
200[ ] (the “Agreement”), among [IDENTIFY
PARTIES]
|
I,
________________________________, the _______________________ of [NAME OF
COMPANY], certify to [the Purchaser], [the Depositor], and the [Master Servicer]
[Securities Administrator] [Trustee], and their officers, with the knowledge
and
intent that they will rely upon this certification, that:
(1) I
have
reviewed the servicer compliance statement of the Company provided in accordance
with Item 1123 of Regulation AB (the “Compliance Statement”), the report on
assessment of the Company’s compliance with the servicing criteria set forth in
Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided in accordance
with Rules 13a-18 and 15d-18 under Securities Exchange Act of 1934, as amended
(the “Exchange Act”) and Item 1122 of Regulation AB (the “Servicing
Assessment”), the registered public accounting firm’s attestation report
provided in accordance with Rules 13a-18 and 15d-18 under the Exchange Act
and
Section 1122(b) of Regulation AB (the “Attestation
Report”), and all servicing reports, officer’s certificates and other
information relating to the servicing of the Mortgage Loans by the Company
during 200[ ] that were delivered by the Company to the [Depositor] [Master
Servicer] [Securities Administrator] [Trustee] pursuant to the Agreement
(collectively, the “Company Servicing Information”);
(2) Based
on
my knowledge, the Company Servicing Information, taken as a whole, does not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances under
which such statements were made, not misleading with respect to the period
of
time covered by the Company Servicing Information;
(3) Based
on
my knowledge, all of the Company Servicing Information required to be provided
by the Company under the Agreement has been provided to the [Depositor] [Master
Servicer] [Securities Administrator] [Trustee];
(4) I
am
responsible for reviewing the activities performed by the Company as servicer
under the Agreement, and based on my knowledge and the compliance review
conducted in preparing the Compliance Statement and except as disclosed in
the
Compliance Statement, the Servicing Assessment or the Attestation Report, the
Company has fulfilled its obligations under the Agreement in all material
respects; and
(5) The
Compliance Statement required to be delivered by the Company pursuant to this
Agreement, and the Servicing Assessment and Attestation Report required to
be
provided by the Company and by any Subservicer or Subcontractor pursuant to
the
Agreement, have been provided to the [Depositor] [Master Servicer]. Any material
instances of noncompliance described in such reports have been disclosed to
the
[Depositor] [Master Servicer]. Any material instance of noncompliance with
the
Servicing Criteria has been disclosed in such reports.
| Date: _________________________ | ||
| |
|
|
| By: | ||
|
Name:
Title:
|
||
J-1
EXHIBIT
K
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|||
|
Reference
|
Criteria
|
|
||
|
|
General
Servicing Considerations
|
|
||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
||
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
||
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
N/A
|
||
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
X
|
||
|
|
Cash
Collection and Administration
|
|||
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
||
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
||
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
X
|
||
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
||
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
||
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
X
|
||
K-1
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|||
|
Reference
|
Criteria
|
|
||
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
X
|
||
|
|
Investor
Remittances and Reporting
|
|||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
X
|
||
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
||
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
||
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
X
|
||
|
|
Pool
Asset Administration
|
|||
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the transaction
agreements or related mortgage loan documents.
|
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
|
||
K-2
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|||
|
Reference
|
Criteria
|
|
||
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's mortgage loans
(e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
||
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
X
|
||
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
X
|
||
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
|
X
|
||
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period specified
in
the transaction agreements; (B) interest on such funds is paid, or
credited, to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
X
|
||
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
X
|
||
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
X
|
||
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
X
|
||
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
||
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
N/A
|
||
K-3
