RECONSTITUTION AGREEMENT
EXECUTION
This
Reconstitution Agreement (this “Agreement”)
dated
as of September 1, 2007, is by and among Greenwich Capital Financial Products,
Inc. (“GCFP”),
Greenwich Capital Acceptance, Inc. (“GCA”)
and
Xxxxxx Savings and Loan Association, F.A., as servicer (the “Servicer”
or
“Xxxxxx”)
and
acknowledged by Xxxxx Fargo Bank, N.A., as master servicer (in such capacity,
the “Master
Servicer”)
and as
securities administrator (in such capacity, the “Securities
Administrator”)
and
Deutsche Bank National Trust Company as trustee (the “Trustee”).
RECITALS
WHEREAS,
GCFP has conveyed certain mortgage loans listed on Exhibit Two hereto (the
“Mortgage
Loans”)
to
GCA, which in turn has conveyed the Mortgage Loans to the Trustee pursuant
to a
pooling and servicing agreement dated as of September 1, 2007 (the “Pooling
and Servicing Agreement”),
among
GCFP, GCA, the Trustee, Xxxxxxx Fixed Income Services Inc., as credit risk
manager, the Master Servicer and the Securities Administrator;
WHEREAS,
the Mortgage Loans are currently being serviced by Xxxxxx for GCFP pursuant
to a
Master Mortgage Loan Purchase and Servicing Agreement, dated as of December
1,
2005 (the “Purchase
Agreement”),
between GCFP and Xxxxxx, a copy of which is annexed hereto as Exhibit
Three;
WHEREAS,
GCFP desires that Xxxxxx continue to service the Mortgage Loans and Xxxxxx
has
agreed to do so, subject to the rights of GCFP and the Trustee to terminate
the
rights and obligations of Xxxxxx hereunder as set forth herein and to the other
conditions set forth herein;
WHEREAS,
Section 25 of the Purchase Agreement provides that, subject to certain
conditions set forth therein, GCFP may assign the Purchase Agreement to any
person to whom any “Mortgage Loan” (as such term is defined in the Purchase
Agreement) is transferred pursuant to a sale or financing. Without limiting
the
foregoing, Xxxxxx has agreed, in Section 12 and Section 32 of the Purchase
Agreement, to enter into additional documents, instruments or agreements as
may
be reasonably necessary in connection with any “Whole Loan Transfer” or
“Securitization Transaction” (as such terms are defined in the Purchase
Agreement) contemplated by GCFP pursuant to the Purchase Agreement;
WHEREAS,
Xxxxxx and GCFP agree that this Agreement shall constitute a “Reconstitution
Agreement” (as such term is defined in the Purchase Agreement) in connection
with a Securitization Transaction that shall govern the Mortgage Loans for
so
long as such Mortgage Loans remain subject to the provisions of the Pooling
and
Servicing Agreement;
WHEREAS,
pursuant to the Pooling and Servicing Agreement, the Master Servicer, and any
successor master servicer, shall be obligated, among other things, to supervise
the servicing of the Mortgage Loans on behalf of the Trustee and the Trust
Fund,
and shall have the right to terminate the rights and obligations of Xxxxxx
under
this Agreement upon the occurrence of an Event of Default (as defined by the
Purchase Agreement);
NOW,
THEREFORE, in consideration of the mutual promises contained herein the parties
hereto hereby agree as follows:
Definitions
Capitalized
terms used herein and not defined in this Agreement (including Exhibit One
hereto) or in the Purchase Agreement shall have the meanings ascribed to them
in
the Pooling and Servicing Agreement.
Trust
Cut-off Date
The
parties hereto acknowledge that by operation of Subsection 11.14 of the
Servicing Addendum to the Purchase Agreement (as modified by this Agreement),
the remittance on October 18, 2007, to be made to the Trust Fund is to include
all principal collections due after September 1, 2007 (the “Trust
Cut-off Date”),
plus
interest thereon at the weighted average Mortgage Interest Rate collected during
the immediately preceding Due Period, but exclusive of any portion thereof
allocable to a period prior to the Trust Cut-off Date, and taking into account
the adjustments specified in the first paragraph of Subsection 11.14 of the
Servicing Addendum.
Servicing
Xxxxxx
agrees, with respect to the servicing of the Mortgage Loans, to perform and
observe the duties, responsibilities and obligations that are to be performed
and observed by the Servicer under the provisions of the Purchase Agreement
without regard to the Preliminary Servicing Period, except as otherwise provided
herein and on Exhibit One hereto, as of the Trust Cut-off Date and that the
provisions of the Purchase Agreement, as so modified, are and shall be a part
of
this Agreement to the same extent as if set forth herein in full.
Servicing
Fee
The
Servicing Fee for the Mortgage Loans for any Due Period shall be equal to 0.250%
per annum prior to the first Adjustment Date, and thereafter 0.375%
per annum (the “Servicing
Fee Rate”)
multiplied by the Pool Balance at the beginning of such Due Period. Such
fee
shall be payable monthly from the interest portion (including recoveries with
respect to interest from Liquidation Proceeds and other proceeds, to the extent
permitted by Subsection 11.05 of the Servicing Addendum to the Purchase
Agreement) of the related Monthly Payment collected by the Servicer.
Master
Servicing; Termination of Servicer
Xxxxxx,
including any successor servicer hereunder, shall be subject to the supervision
of the Master Servicer, which Master Servicer shall be obligated to enforce
Xxxxxx’x obligation to service the Mortgage Loans in accordance with the
provisions of this Agreement. The Master Servicer, acting on behalf of the
Trustee and the Trust Fund, shall have the same rights (but not the obligations)
as the Purchaser to enforce the obligations of Xxxxxx under the Purchase
Agreement and unless otherwise specified in Exhibit One to this Agreement,
references to the “Initial Purchaser” or the “Purchaser” in the Purchase
Agreement shall be deemed to refer to the Master Servicer (including the Trustee
and the Trust Fund on whose behalf the Master Servicer is acting); provided,
however,
that
any obligation of the Purchaser to pay or reimburse Xxxxxx shall be satisfied
solely from funds available for such purposes in the Custodial Account or the
Trust Fund pursuant to the Pooling and Servicing Agreement. The Master Servicer
shall be entitled to terminate the rights and obligations of Xxxxxx under this
Agreement upon the occurrence of an Event of Default under Section 15.01 of
the
Purchase Agreement (as modified by this Agreement). Notwithstanding anything
herein to the contrary, in no event shall the Master Servicer or the Trustee
be
required to assume any of the obligations of the Purchaser under the Purchase
Agreement and, in connection with the performance of the Master Servicer’s
duties hereunder, the parties and other signatories hereto agree that the Master
Servicer shall be entitled to all the rights, protections and limitations of
liability afforded to the Master Servicer under the Pooling and Servicing
Agreement.
2
Warranties
GCFP
and
Xxxxxx mutually warrant and represent that, with respect to the Mortgage Loans,
the Purchase Agreement is in full force and effect as of the Trust Cut-off
Date
and has not been amended or modified in any way with respect to the Mortgage
Loans and no notice of termination has been given thereunder.
Representations
Pursuant
to Section 12 of the Purchase Agreement, Xxxxxx hereby represents and warrants,
for the benefit of GCFP, GCA, the Trustee and the Trust Fund (including the
Trustee and the Master Servicer acting on the Trust Fund’s behalf), that (i) the
representations and warranties set forth in Section 7.01 and Section 7.02 of
the
Purchase Agreement are true and correct as of October 2, 2007 (the
“Reconstitution Date”) as if such representations and warranties were made on
such date.
Xxxxxx
hereby acknowledges and agrees that the remedies available to GCFP, GCA and
the
Trust Fund (including the Trustee and the Master Servicer acting on the Trust
Fund’s behalf) in connection with any breach of the representations and
warranties made by Xxxxxx set forth above that materially and adversely affects
the value of that Mortgage Loan and the interests of the Certificateholders
in
such Mortgage Loan shall be as set forth in Section 7.03 of the Purchase
Agreement as if they were set forth herein (including without limitation the
repurchase and indemnity obligations set forth therein). Notwithstanding
anything to the contrary contained herein or in the Purchase Agreement, it
is
understood by the parties hereto that a breach of the representations and
warranties set forth in Subsections 7.02(viii), (xliv), (xlvii), (lv), (lvii),
(lviii), (lix), (lx), (lxii), (lxiii), (lxiv) or (lxxxiii) will be deemed to
materially and adversely affect the value of the related Mortgage Loan or the
interest of the Purchaser therein. Such enforcement of a right or remedy by
the
Trustee shall have the same force and effect as if the right or remedy had
been
enforced or exercised by GCFP directly.
3
Assignment
Xxxxxx
hereby acknowledges that the rights of GCFP under the Purchase Agreement as
amended by this Agreement will be assigned to GCA under a Mortgage Loan Purchase
Agreement and by GCA to the Trust Fund under the Pooling and Servicing
Agreement. In addition, the Trust Fund will make a REMIC election. Xxxxxx hereby
consents to such assignment and assumption and acknowledges the Trust Fund’s
REMIC election.
Notices
1.
All
written information required to be delivered to the Master Servicer hereunder
shall be delivered to the Master Servicer at the following address:
Xxxxx
Fargo Bank, N.A.
X.X.
Xxx
00
Xxxxxxxx,
XX 00000
Attention:
Client Service Manager - HarborView 2007-7
(or
in
the case of overnight deliveries,)
0000
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
XX 00000
Attention:
Client Service Manager - HarborView 2007-7
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
2. All
remittances required to be made to the Master Servicer under this Agreement
shall be on a scheduled/scheduled basis and made to the following wire
account:
Xxxxx
Fargo Bank, N.A.
ABA#:
121
000 248
Account
Name: SAS CLEARING
Account
Number: 0000000000
For
further credit to: HarborView 2007-7, Account # 00000000
3. All
written information
required
to be delivered to the Trustee hereunder shall be delivered to the Trustee
at
the following address:
Deutsche
Bank National Trust Company
0000
Xxxx Xx. Xxxxxx Xxxxx
Xxxxx
Xxx, Xxxxxxxxxx 00000
Attention:
HarborView 2007-7
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
4. All
written information required to be delivered to GCFP under the Purchase
Agreement and under this Agreement shall be delivered to GCFP at the following
address:
Greenwich
Capital Financial Products, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Attention:
Legal Department (HarborView 2007-7)
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
4
Governing
Law
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER
THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
Counterparts
This
Agreement may be executed in any number of counterparts, each of which when
so
executed shall be deemed to be an original, but all of which counterparts shall
together constitute but one and the same instrument.
Reconstitution
Xxxxxx
and GCFP agree that this Agreement is a Reconstitution Agreement executed in
connection with a Securitization Transaction and that the date hereof is the
Reconstitution Date.
Intended
Third Party Beneficiaries
Notwithstanding
any provision herein to the contrary, the parties to this Agreement agree that
it is appropriate, in furtherance of the intent of such parties as set forth
herein, that the Trustee, the Master Servicer and the Securities Administrator
receive the benefit of the provisions of this Agreement as intended third party
beneficiaries of this Agreement to the extent of such provisions. Xxxxxx shall
have the same obligations to the Trustee, the Master Servicer and the Securities
Administrator as if the Trustee, the Master Servicer and the Securities
Administrator were each a party to this Agreement, and the Trustee, the Master
Servicer and the Securities Administrator shall have the same rights and
remedies to enforce the provisions of this Agreement as if each were a party
to
this Agreement. Notwithstanding the foregoing, all rights and obligations of
the
Trustee, the Master Servicer and the Securities Administrator hereunder (other
than the right to indemnification) shall terminate upon termination of the
Trust
Fund pursuant to the Pooling and Servicing Agreement.
Limited
Role of the Trustee
The
Trustee shall have no obligations or duties under this Agreement except as
expressly set forth herein. No implied duties on the part of the Trustee shall
be read into this Agreement. Nothing herein shall be construed to be an
assumption by the Trustee of any duties or obligations of any party to this
Agreement or each Servicing Agreement, the duties of the Trustee being solely
those set forth in the Pooling and Servicing Agreement. The Trustee is entering
into this Agreement solely in its capacity as Trustee under the Pooling and
Servicing Agreement and not individually, and there shall be no recourse against
the Trustee in its individual capacity hereunder or for the payment of any
obligations of the Trust or the Trust Fund.
5
Executed
as of the day and year first above written.
GREENWICH
CAPITAL FINANCIAL PRODUCTS, INC.
By:
/s/
Xxx
Xxxxxxxxxx
Name:
Xxx
Xxxxxxxxxx
Title:
Vice President
GREENWICH
CAPITAL ACCEPTANCE, INC.
By:
/s/
Xxx
Xxxxxxxxxx
Name:
Xxx
Xxxxxxxxxx
Title:
Vice President
XXXXXX
SAVINGS AND LOAN ASSOCIATION, F.A.,
as
Servicer
By:
/s/
Xxxxx X.
Xxxx
Name:
Xxxxx X. Xxxx
Title:
EVP/CFO
Acknowledged
By
XXXXX
FARGO BANK, N.A.,
as
Master
Servicer and Securities Administrator
By:
/s/
Xxxxxx X.
Xxxxxxx
Name:
Xxxxxx X. Xxxxxxx
Title: Vice
President
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
not
in
its individual capacity, but solely as Trustee
under
the
Pooling and Servicing Agreement
By:
/s/
Hang
Xxx
Name:
Hang Xxx
Title:
Authorized Signer
EXHIBIT
ONE
Modifications
to the Purchase Agreement with respect to the Mortgage Loans only:
|
1.
|
The
definition of “Business Day” in Section 1 is hereby amended in its
entirety to read as follows:
|
Business
Day:
Any day
other than a Saturday or Sunday, or a day on which banks and savings and loan
institutions in the State of Maryland, the State of Connecticut, the State
of
Illinois, the State of Colorado, the State of Minnesota, the State of Iowa,
the
State of California or the State of New York are authorized or obligated by
law
or executive order to be closed.
|
2.
|
The
definition of “Distribution Date” is hereby amended in its entirety to
read as follows:
|
Distribution
Date:
The
18th
calendar
day of any month or, if such 18th
day is
not a Business Day, the Business Day immediately preceding such 18th
day.
|
3.
|
The
definition of "Eligible Account" in Section 1 is hereby amended in
its
entirety to read as follows:
|
Eligible
Account:
Any of
|
(i)
|
an
account or accounts maintained with a federal or state chartered
depository institution or trust company the short term unsecured
debt
obligations of which (or, in the case of a depository institution
or trust
company that is the principal subsidiary of a holding company, the
short
term unsecured debt obligations of such holding company) are rated
F-1 by
Fitch, P-1 by Xxxxx’x and A-1+ by S&P at the time any amounts are held
on deposit therein;
|
|
(ii)
|
an
account or accounts the deposits in which are secured such that,
as
evidenced by an Opinion of Counsel delivered to the Securities
Administrator and the Trustee and to each Rating Agency, the Trustee
on
behalf of the Certificateholders will have a claim with respect to
the
funds in the account or a perfected first priority security interest
against the collateral (which shall be limited to Permitted Investments)
securing those funds that is superior to claims of any other depositors
or
creditors of the depository institution with which such account is
maintained;
|
|
(iii)
|
a
trust account or accounts maintained with the trust department of
a
federal or state chartered depository institution, national banking
association or trust company acting in its fiduciary capacity; or
|
|
(iv)
|
an
account otherwise acceptable to each Rating Agency without reduction
or
withdrawal of its then current ratings of the Certificates as evidenced
by
a letter from such Rating Agency to the Securities Administrator
and the
Trustee.
|
Eligible
Accounts may bear interest, and any account with the depository institution
acting as Trustee hereunder may be an Eligible Account so long as it otherwise
satisfies the requirements of this definition.
1-1
|
4.
|
A
new definition of “Fitch” is hereby added to Section 1 immediately
following the definition of “Final Recovery Determination” to read as
follows:
|
Fitch:
Fitch
Ratings or its successor in interest.
|
5.
|
The
definition of “Mortgage Interest Rate” in Section 1 is hereby amended by
adding the phrase “net of any Relief Act Reduction” to the end of such
definition.
|
|
6.
|
The
definition of “Opinion of Counsel” in Section 1 is hereby amended in its
entirety to read as follows:
|
Opinion
of Counsel:
A
written opinion of counsel, who may be an employee of the Seller, that is
reasonably acceptable to the Master Servicer 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 reasonably
acceptable to the Master Servicer and GCFP, who (i) is in fact independent
of
the Seller, (ii) does not have any material direct or indirect financial
interest in the Seller or in any Affiliate of the Seller and (iii) is not
connected with the Seller as an officer, employee, director or person performing
similar functions.
|
7.
|
A
new definition of “Permitted Investments” is hereby added to Section 1
immediately following the definition of “Periodic Rate Cap” to read as
follows:
|
Permitted
Investments:
Any one
or more of the following obligations or securities acquired at a purchase price
of not greater than par, regardless of whether issued or managed by the
Depositor, the Master Servicer, the Trustee or any of their respective
Affiliates or for which an Affiliate of the Trustee or the Master Servicer
serves as an advisor:
|
(i)
|
direct
obligations of, or obligations fully guaranteed as to timely payment
of
principal and interest by, the United States or any agency or
instrumentality thereof, provided such obligations are backed by
the full
faith and credit of the United States;
|
|
(ii)
|
accounts
held at a depository institution provided that such depository institution
or trust company or its ultimate parent has a short-term uninsured
debt
rating in one of the two highest available rating categories of each
of
S&P and Xxxxx’x;
|
|
(iii)
|
repurchase
obligations with respect to any security described in clause (i)
above and
entered into with a depository institution or trust company (acting
as
principal) rated A or higher by each of S&P and
Xxxxx’x;
|
|
(iv)
|
securities
bearing interest or sold at a discount that are issued by any corporation
incorporated under the laws of the United States of America, the
District
of Columbia or any State thereof and that are rated by each of S&P and
Xxxxx’x in its respective highest long term unsecured rating categories at
the time of such investment or contractual commitment providing for
such
investment;
|
|
(v)
|
commercial
paper (including both non interest bearing discount obligations and
interest bearing obligations) that is rated by each of S&P and Xxxxx’x
in its respective highest short term unsecured debt rating available
at
the time of such investment;
|
1-2
|
(vi)
|
units
of money market funds (which may be 12b-1 funds, as contemplated
by the
Commission under the Investment Company Act of 1940) registered under
the
Investment Company Act of 1940 including funds managed or advised
by the
Trustee, the Master Servicer or an Affiliate thereof having the highest
applicable rating from each of S&P and Xxxxx’x;
and
|
|
(vii)
|
if
previously confirmed in writing to the Trustee, any other demand,
money
market or time deposit, or any other obligation, security or investment,
as may be acceptable to each of S&P and Xxxxx’x in writing as a
permitted investment of funds backing securities having ratings equivalent
to its respective highest initial ratings of the Senior
Certificates;
|
provided,
however, that no instrument described hereunder shall evidence either the right
to receive (a) only interest with respect to the obligations underlying such
instrument or (b) both principal and interest payments derived from obligations
underlying such instrument and the interest and principal payments with respect
to such instrument provide a yield to maturity at par greater than 120% of
the
yield to maturity at par of the underlying obligations.
|
8.
|
A
new definition of “Rating Agency” is hereby added to Section 1 immediately
following the definition of “Rate/Term Refinancing” to read as
follows:
|
Rating
Agency:
Any
nationally recognized statistical rating agency rating the securities issued
in
a mortgage securitization as a result of a Securitization
Transaction.
|
9.
|
A
new definition of “Relief Act Reduction” is hereby added to Section 1
immediately following the definition of “Refinanced Mortgage Loan” to read
as follows:
|
Relief
Act Reduction:
With
respect to any Mortgage Loan as to which there has been a reduction in the
amount of the interest collectible thereon as a result of the application of
the
Servicemembers Civil Relief Act, or any similar state law, any amount by which
interest collectible on such Mortgage Loan for the Due Date in the related
Due
Period is less than the interest accrued thereon for the applicable one-month
period at the Mortgage Interest Rate without giving effect to such
reduction.
|
10.
|
[Reserved.]
|
|
11.
|
A
new definition of “Sarbanes Certifying Parties” is added to Section 1
immediately before the definition of “Securities Act” to read as
follows:
|
Sarbanes
Certifying Parties:
The
Depositor and the Master Servicer.
|
12.
|
Subsection
7.03 (Remedies for Breach of Representations and Warranties) is hereby
amended as follows:
|
|
(i)
|
by
adding the words “(from its own funds)” to the first sentence of the sixth
paragraph after the word
“indemnify;”
|
|
(ii)
|
by
replacing the words “the Initial Purchaser and any subsequent Purchaser
and hold them” at the beginning of the second line of the sixth paragraph
with “GCFP, the Depositor, the Trustee, the Master Servicer and the Trust
Fund and hold each of them;”
|
1-3
|
(iii)
|
by
replacing each of the references to “the Initial Purchaser and any
subsequent Purchaser” in the last sentence of the sixth paragraph with
“GCFP, the Depositor, the Trustee, the Master Servicer and the Trust
Fund;” and
|
|
(iv)
|
by
replacing each of the references to “the Purchaser” in the seventh
paragraph of Section 7.03 with “GCFP, the Depositor, the Master Servicer
or the Trustee.”
|
|
13.
|
Subsection
11.01 of the Servicing Addendum (Seller to Act as Interim Servicer)
is
hereby amended as follows:
|
|
(i)
|
by
adding the following proviso at the end of the first paragraph to
read as
follows:
|
provided,
however,
that
the Seller shall not knowingly or intentionally take any action, or fail to
take
(or fail to cause to be taken) any action reasonably within its control and
the
scope of duties more specifically set forth herein, that, under the REMIC
Provisions, if taken or not taken, as the case may be, would cause any REMIC
created under the Pooling and Servicing Agreement to fail to qualify as a REMIC
or result in the imposition of a tax upon the Trust (including but not limited
to the tax on prohibited transactions as defined in Section 860F(a)(2) of the
Code and the tax on contributions to a REMIC set forth in Section 860G(d) of
the
Code) unless the Seller has received an Opinion of Counsel (but not at the
expense of the Seller) to the effect that the contemplated action will not
cause
any REMIC created under the Pooling and Servicing Agreement to fail to qualify
as a REMIC or result in the imposition of a tax upon any such REMIC created
thereunder.
|
(ii)
|
by
adding the following to the end of the proviso at the end of the
first
sentence of the second paragraph: “(unless, in any such case, the related
Mortgagor is in default with respect to such Mortgage Loan or such
default
is, in the judgment of Servicer, reasonably foreseeable)”;
and
|
|
(iii)
|
by
adding the following additional proviso at the end of the first sentence
of the second paragraph to read as
follows:
|
;
provided, further, no such modification shall be permitted unless the Seller
shall have provided to the Master Servicer an Opinion of Counsel in writing
to
the effect that such modification, waiver or amendment would not cause an
Adverse REMIC Event (as defined in the Pooling and Servicing Agreement). The
costs of obtaining such Opinion of Counsel shall be a reimbursable expense
to
the Seller to be withdrawn from the Custodial Account pursuant to Subsection
11.05 of the Servicing Addendum. Promptly after the execution of any
modification of any Mortgage Loan, the Seller shall deliver to the Custodian
the
originals of any documents evidencing such modification.
|
14.
|
Subsection
11.04 of the Servicing Addendum (Establishment of Custodial Accounts;
Deposits in Custodial Accounts) is hereby amended as
follows:
|
1-4
|
(i)
|
by
adding the words “, entitled ‘in trust for the Holders of HarborView
Mortgage Loan Trust 2007-7 Mortgage Pass-Through Certificates, Series
2007-7’ ” at the end of the first sentence of the first paragraph;
|
|
(ii)
|
by
adding the following paragraph before the final paragraph of Subsection
11.04:
|
“Funds
on
deposit in the Custodial Account shall either (i) remain uninvested or (ii)
be
invested in Permitted Investments, which Permitted Investments shall mature
or
be subject to redemption or withdrawal on or prior to the next occurring
Remittance Date. If such funds are deposited in Permitted Investments, any
and
all investment earnings from any such Permitted Investments shall be for the
benefit of the Seller and the risk of loss of moneys required to be remitted
to
the Master Servicer for deposit in the Distribution Account resulting from
such
investments shall be borne by and be the risk of the Seller.”
|
(iv)
|
by
deleting the final paragraph of Subsection
11.04.
|
|
15.
|
Subsection
11.05 of the Servicing Addendum (Permitted Withdrawals From the Custodial
Account) is hereby amended by adding a new subclause (xi) to read
as
follows:
|
(xi)
to
reimburse itself for unreimbursed Servicing Advances to the extent that such
amounts are nonrecoverable by the Servicer pursuant to subclause
(ii) above;
|
16.
|
Subsection
11.06 of the Servicing Addendum (Establishment of Escrow Accounts;
Deposits in Escrow Accounts) is hereby amended by adding the words
“,
entitled ‘in trust for the Holders of HarborView Mortgage Loan Trust
2007-7 HarborView Mortgage Pass-Through Certificates, Series 2007-7
and
various mortgagors’ ” at the end of the first sentence of the first
paragraph.
|
|
17.
|
Subsection
11.14 of the Servicing Addendum (Distributions) is hereby amended
as
follows:
|
|
(i)
|
by
deleting the words “the second Business Day following” in the first
sentence and by deleting the word “second” in the second sentence of the
third paragraph; and
|
|
(ii)
|
by
replacing “Monthly Prepayments” with “Monthly Payments” in the first
paragraph.
|
|
18.
|
Subsection
11.15 of the Servicing Addendum (Remittance Reports) is hereby amended
in
its entirety to read as follows:
|
Subsection
11.15 Statements
to Master Servicer.
Not
later
than the tenth calendar day of each month (or if such calendar day is not a
Business Day, the immediately succeeding Business Day), the Seller shall furnish
to the Master Servicer, including but not limited to (i) a monthly remittance
advice in written or electronic format (or in such other format mutually agreed
to between the Seller and the Master Servicer) relating to the period ending
on
the last day of the preceding calendar month in the form of Exhibit
Four
(excluding the borrower’s name) or in such form mutually agreed to in writing
between the Seller and the Master Servicer and (ii) all such information
required pursuant to clause (i) above on a magnetic tape or other similar media
reasonably acceptable to the Master Servicer. In addition, no later than the
close of business New York time on the fifth Business Day prior to such
Distribution Date, the Seller shall deliver or cause to be delivered to the
Master Servicer in addition to the information provided in Exhibit
Four
(excluding the borrower’s name), such other loan-level information reasonably
available to it with respect to the Mortgage Loans as the Master Servicer may
reasonably require to perform the calculations necessary to make the
distributions contemplated by Section 5.01 of the Pooling and Servicing
Agreement.
1-5
|
19.
|
[Reserved.]
|
|
20.
|
Subsections
11.24 and 11.25 of the Servicing Addendum (Independent Public Accountants’
Servicing Report) and Exhibit 12 to the Purchase Agreement are hereby
deleted in their entirety.
|
|
21.
|
Subsection
13.03 (iv) (Information to Be Provided by the Seller) is hereby amended
as
follows:
|
|
(i)
|
by
replacing “If so requested by the Purchaser, any Master Servicer or any
Depositor for the purpose of satisfying its reporting obligation” of the
first sentence with “For the purpose of satisfying the reporting
obligation”; and
|
|
(ii)
|
by
adding a new clause (viii) to read as
follows:
|
|
(viii)
|
The
Company shall provide to the Purchaser, any Master Servicer and any
Depositor, evidence of the authorization of the person signing any
certification or statement, copies of audited financial information
related to the Company or any Subservicer hereunder as may be reasonably
requested by the Purchaser, any Master Servicer or any
Depositor.
|
|
22.
|
Subsection
13.05 (Report on Assessment of Compliance and Attestation) is hereby
amended:
|
|
(i)
|
by
deleting the phrase “a certification substantially in the form of” and
“delivered to the Purchaser concurrently with the execution of this
Agreement” from the last sentence of clause (i)(1);
and
|
|
(ii)
|
by
deleting clause (i)(4) in its entirety and replacing it with new
clause
(i)(4) to reads as follows:
|
|
(i)(4)
|
deliver,
and cause each Subservicer and Subcontractor described in clause
(3) above
to deliver, to the Purchaser, the Master Servicer, 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, signed by an appropriate officer of
the
Company, in the form attached hereto at Exhibit
14.
|
1-6
|
23.
|
Subsection
13.06 (Use of Subservicers and Subcontractors) is hereby
amended:
|
|
(i)
|
by
replacing the reference to “(v), (vi) and (vii)” with “(v), (vi), (vii)
and (viii)” in clause (i);
|
|
(ii)
|
by
adding the phrase “, the Master Servicer” after “the Purchaser” in the
third sentence of clause (i); and
|
|
(iii)
|
by
replacing the last sentence of this section with the
following:
|
The
Seller shall be responsible for obtaining from each Subcontractor and delivering
to the Purchaser, the Master Servicer and any Depositor any assessment of
compliance and attestation and any other certifications required to be delivered
by such Subcontractor under Subsection 13.05, in each case as and when required
to be delivered.
|
24.
|
Subsection
14.01 (Additional Indemnification by the Seller) is hereby
amended:
|
|
(i)
|
by
replacing the reference to “the Initial Purchaser and any subsequent
Purchaser” with “the Trust Fund, the Trustee, the Master Servicer, the
Depositor and each successor in interest.”
|
|
(ii)
|
by
replacing the word “them” with “the Trust Fund, the Trustee, the Master
Servicer and the Depositor.”
|
|
25.
|
Subsection
14.05 (No Transfer of Servicing) is hereby amended by adding the
phrase
“but subject to the last sentence of Section 25” after “Notwithstanding
the forgoing” in the third sentence of this
section.
|
|
26.
|
Subsection
15.01 (Events of Default) is hereby amended as
follows:
|
|
(i)
|
by
adding the words “subject to clause (x) of this Subsection 15.01,” at the
beginning of clause (ii);
|
|
(ii)
|
by
replacing the reference to “Section 13 or Sections 11.24, 11.25 or” with
the word “Subsection” in clause (x);
and
|
|
(iii)
|
by
adding the words “within the applicable cure period” after the word
“remedied” in the second line after clause
(x).
|
|
27.
|
Section
17 (Successor to the Seller) is hereby amended as
follows:
|
|
(i)
|
by
replacing the words “Prior to” with “Upon” at the beginning of the first
sentence of the first paragraph;
|
1-7
|
(ii)
|
by
replacing the reference to “Sections 12, 15 or 16” with “Sections 15 or
16” in the second line of the first
paragraph;
|
|
(iii)
|
by
adding the following new sentence immediately after the first sentence
of
the first paragraph to read as
follows:
|
Any
successor to the Servicer shall be a FHLMC- or FNMA-approved servicer and shall
be subject to the approval of each Rating Agency, as evidenced by a letter
from
each such Rating Agency delivered to the Master Servicer that the transfer
of
servicing will not result in a qualification, withdrawal or downgrade of the
then-current rating of any of the Certificates.
|
(iv)
|
by
adding the following proviso at the end of the third sentence of
the first
paragraph immediately before the period to read as
follows:
|
;
provided,
however,
that no
such compensation shall be in excess of that permitted the Servicer under this
Agreement.
|
(v)
|
by
adding the following new paragraph as the fourth paragraph to read
as
follows:
|
Except
as
otherwise provided in this Section 17, all reasonable costs and expenses
incurred in connection with any transfer of servicing hereunder (as a result
of
termination for cause under Section 15.01 or otherwise), including, without
limitation, the costs and expenses of the Master Servicer or any other Person
in
appointing a successor servicer, or of the Master Servicer in assuming the
responsibilities of the Servicer hereunder, or of transferring the Servicing
Files and the other necessary data, including the completion, correction or
manipulation of such servicing data as may be required to correct any errors
or
insufficiencies in the servicing data, to the successor servicer shall be paid
by the terminated or resigning Servicer from its own funds without
reimbursement.
|
28.
|
Section
25 (Successors and Assigns) is hereby amended as
follows:
|
|
(i)
|
by
replacing the last sentence with “This Agreement shall not be assigned,
pledged or hypothecated by the Seller to a third party (i) without
the
prior written consent of GCFP and the Master Servicer, which consent
shall
not be unreasonably withheld, and (ii) without prior written notice
to
each Rating Agency” at the end of the
paragraph.
|
|
28.
|
Exhibit
15 is hereby deleted in its entirety and replaced with new Exhibit
15
attached hereto as Exhibit Five.
|
1-8
EXHIBIT
TWO
List
of Mortgage Loans
[To
be retained in a separate closing binder entitled “HarborView 2007-7 Mortgage
Loan Schedule” at the Washington, DC offices of XxXxx Xxxxxx LLP]
2-1
EXHIBIT
THREE
Purchase
Agreement
3-1
MASTER
MORTGAGE LOAN PURCHASE AND SERVICING AGREEMENT
XXXXXX
SAVINGS AND LOAN ASSOCIATION, F.A.
Seller
and Servicer
GREENWICH
CAPITAL FINANCIAL PRODUCTS, INC.
Initial
Purchaser
Dated
as
of December 1, 2005
First
and
Second Lien, Fixed and Adjustable Rate Mortgage Loans
TABLE
OF
CONTENTS
|
Page
|
||
|
SECTION
1.
|
Definitions
|
1
|
|
SECTION
2.
|
Agreement
to Purchase
|
14
|
|
SECTION
3.
|
Mortgage
Loan Schedules
|
14
|
|
SECTION
4.
|
Purchase
Price
|
14
|
|
SECTION
5.
|
Examination
of Mortgage Files
|
15
|
|
SECTION
6.
|
Conveyance
from Seller to Initial Purchaser.
|
15
|
|
Subsection
6.01.
|
Conveyance
of Mortgage Loans; Possession of Servicing Files.
|
15
|
|
Subsection
6.02.
|
Books
and Records.
|
15
|
|
Subsection
6.03.
|
Delivery
of Mortgage Loan Documents.
|
16
|
|
Subsection
6.04.
|
Quality
Control Procedures
|
17
|
|
SECTION
7.
|
Representations,
Warranties and Covenants of the Seller: Remedies for
Breach.
|
17
|
|
Subsection
7.01.
|
Representations
and Warranties Respecting the Seller
|
17
|
|
Subsection
7.02.
|
Representations
and Warranties Regarding Individual Mortgage Loans.
|
20
|
|
Subsection
7.03.
|
Remedies
for Breach of Representations and Warranties.
|
34
|
|
Subsection
7.04.
|
Repurchase
of Certain Mortgage Loans; Premium Protection.
|
36
|
|
SECTION
8.
|
Closing
|
37
|
|
SECTION
9.
|
Closing
Documents.
|
37
|
|
SECTION
10.
|
Costs
|
38
|
|
SECTION
11.
|
Seller's
Servicing Obligations
|
39
|
|
SECTION
12.
|
Removal
of Mortgage Loans from Inclusion under This Agreement Upon a Whole
Loan
Transfer or a Securitization Transaction on One or More Reconstitution
Dates.
|
39
|
|
SECTION
13.
|
COMPLIANCE
WITH REGULATION AB
|
41
|
|
Subsection
13.01.
|
Intent
of the Parties; Reasonableness.
|
41
|
|
Subsection
13.02.
|
Additional
Representations and Warranties of the Seller.
|
42
|
|
Subsection
13.03.
|
Information
to Be Provided by the Seller.
|
43
|
|
Subsection
13.04.
|
Servicer
Compliance Statement.
|
48
|
|
Subsection
13.05.
|
Report
on Assessment of Compliance and Attestation.
|
48
|
|
Subsection
13.06.
|
Use
of Subservicers and Subcontractors.
|
49
|
|
Subsection
13.07.
|
Indemnification;
Remedies.
|
00
|
-x-
|
XXXXXXX
00.
|
The
Seller.
|
53
|
|
|
||
|
Subsection
14.01.
|
Additional
Indemnification by the Seller.
|
53
|
|
Subsection
14.02.
|
Merger
or Consolidation of the Seller.
|
53
|
|
|
||
|
Subsection
14.03.
|
Limitation
on Liability of the Seller and Others.
|
54
|
|
Subsection
14.04.
|
Seller
Not to Resign.
|
54
|
|
Subsection
14.05.
|
No
Transfer of Servicing.
|
54
|
|
SECTION
15.
|
DEFAULT.
|
55
|
|
Subsection
15.01.
|
Events
of Default.
|
55
|
|
Subsection
15.02.
|
Waiver
of Defaults.
|
56
|
|
SECTION
16.
|
Termination
|
56
|
|
SECTION
17.
|
Successor
to the Seller
|
57
|
|
SECTION
18.
|
Financial
Statements
|
58
|
|
SECTION
19.
|
Mandatory
Delivery: Grant of Security Interest
|
58
|
|
SECTION
20.
|
Notices
|
58
|
|
SECTION
21.
|
Severability
Clause
|
59
|
|
SECTION
22.
|
Counterparts
|
60
|
|
SECTION
23.
|
GOVERNING
LAW; SUBMISSION TO JURISDICTION
|
60
|
|
SECTION
24.
|
Intention
of the Parties
|
60
|
|
SECTION
25.
|
Successors
and Assigns
|
60
|
|
SECTION
26.
|
Waivers
|
60
|
|
SECTION
27.
|
Exhibits
|
61
|
|
SECTION
28.
|
Nonsolicitation
|
61
|
|
SECTION
29.
|
General
Interpretive Principles
|
61
|
|
SECTION
30.
|
Reproduction
of Documents
|
61
|
|
SECTION
31.
|
Third
Party Beneficiary
|
62
|
|
SECTION
32.
|
Further
Agreements
|
62
|
|
SECTION
33.
|
Entire
Agreement
|
62
|
-ii-
EXHIBITS
|
SELLER’S
OFFICER’S CERTIFICATE
|
|
|
EXHIBIT
2
|
FORM
OF OPINION OF COUNSEL TO THE SELLER
|
|
EXHIBIT
3
|
SECURITY
RELEASE CERTIFICATION
|
|
EXHIBIT
4
|
ASSIGNMENT
AND CONVEYANCE
|
|
EXHIBIT
5
|
CONTENTS
OF EACH MORTGAGE FILE
|
|
EXHIBIT
6
|
MORTGAGE
LOAN DOCUMENTS
|
|
EXHIBIT
7
|
FORM
OF CUSTODIAL ACCOUNT LETTER AGREEMENT
|
|
EXHIBIT
8
|
FORM
OF ESCROW ACCOUNT LETTER AGREEMENT
|
|
EXHIBIT
9
|
SERVICING
ADDENDUM
|
|
EXHIBIT
10
|
FORM
OF ASSIGNMENT AND RECOGNITION AGREEMENT
|
|
EXHIBIT
11
|
FORM
OF INDEMNIFICATION AGREEMENT
|
|
EXHIBIT
12
|
FORM
OF BACK-UP CERTIFICATION
|
|
EXHIBIT
13
|
FORM
OF REMITTANCE REPORT
|
|
EXHIBIT
14
|
FORM
OF ANNUAL CERTIFICATION
|
|
EXHIBIT
15
|
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
|
|
SCHEDULE
I
|
MORTGAGE
LOAN SCHEDULE
|
-iii-
MASTER
MORTGAGE LOAN PURCHASE AND SERVICING AGREEMENT
This
is a
MASTER MORTGAGE LOAN PURCHASE AND SERVICING AGREEMENT (the “Agreement”), dated
as of December 1, 2005, by and between Greenwich Capital Financial Products,
Inc., having an office at 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000
(the
“Initial Purchaser”, and the Initial Purchaser or the Person, if any, to which
the Initial Purchaser has assigned its rights and obligations hereunder as
Purchaser with respect to a Mortgage Loan, and each of their respective
successors and assigns, the “Purchaser”) and Downey Savings and Loan
Association, F.A., having an office at 0000 Xxxxxxxx Xxxx, Xxxxxxx Xxxxx,
Xxxxxxxxxx 00000 (the “Seller”).
WITNESSETH
:
WHEREAS,
the Seller desires to sell, from time to time, to the Initial Purchaser,
and the
Initial Purchaser desires to purchase, from time to time, from the Seller,
certain conventional fixed and adjustable rate residential first and second
lien
mortgage loans, including the right to any Prepayment Charges payable by
the
related Mortgagors, (the “Mortgage Loans”) as described herein on a
servicing-retained basis, and which shall be delivered in groups of whole
loans
on various dates as provided herein (each, a “Closing Date”);
WHEREAS,
each Mortgage Loan is secured by a mortgage, deed of trust or other security
instrument creating a first or second lien on a residential dwelling located
in
the jurisdiction indicated on the Mortgage Loan Schedule for the related
Mortgage Loan Package, which is to be annexed hereto on each Closing Date
as
Schedule
I;
WHEREAS,
the Initial Purchaser and the Seller wish to prescribe the manner of the
conveyance, servicing and control of the Mortgage Loans; and
WHEREAS,
following its purchase of the Mortgage Loans from the Seller, the Purchaser
desires to sell some or all of the Mortgage Loans to one or more purchasers
as a
whole loan transfer in a whole loan or participation format or a public or
private mortgage-backed securities transaction;
NOW,
THEREFORE, in consideration of the premises and mutual agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Initial Purchaser and the
Seller agree as follows:
SECTION
1. Definitions.
For
purposes of this Agreement the following capitalized terms shall have the
respective meanings set forth below.
Accepted
Servicing Practices:
With
respect to any Mortgage Loan, those mortgage servicing practices (including
collection procedures) of prudent mortgage banking institutions which service
mortgage loans of the same type as such Mortgage Loan in the jurisdiction
where
the related Mortgaged Property is located, which are in accordance with Xxxxxx
Mae servicing practices and procedures for MBS pool mortgages, as defined
in the
Xxxxxx Xxx Guide including future updates, the terms of the Mortgage Loan
Documents and all applicable federal, state and local legal and regulatory
requirements.
Adjustable
Rate Mortgage Loan:
A
Mortgage Loan which provides for the adjustment of the Mortgage Interest
Rate
payable in respect thereto.
Adjustment
Date:
With
respect to each Adjustable Rate Mortgage Loan, the date set forth in the
related
Mortgage Note on which the Mortgage Interest Rate on such Adjustable Rate
Mortgage Loan is adjusted in accordance with the terms of the related Mortgage
Note.
Agreement:
This
Master Mortgage Loan Purchase and Servicing Agreement including all exhibits,
schedules, amendments and supplements hereto.
Appraised
Value:
With
respect to any Mortgaged Property, the lesser of (i) the value thereof as
determined by an appraisal made for the originator of the Mortgage Loan at
the
time of origination of the Mortgage Loan by an appraiser who met the minimum
requirements of Xxxxxx Mae and Xxxxxxx Mac and the Financial Institutions
Reform, Recovery, and Enforcement Act of 1989., and (ii) the purchase price
paid
for the related Mortgaged Property by the Mortgagor with the proceeds of
the
Mortgage Loan, provided, however, in the case of a Refinanced Mortgage Loan,
such value of the Mortgaged Property is based solely upon the value determined
by an appraisal made for the originator of such Refinanced Mortgage Loan
at the
time of origination of such Refinanced Mortgage Loan by an appraiser who
met the
minimum requirements of Xxxxxx Mae and Xxxxxxx Mac and the Financial
Institutions Reform, Recovery, and Enforcement Act of 1989.
Assignment
and Conveyance:
An
assignment and conveyance of the Mortgage Loans purchased on a Closing Date
in
the form annexed hereto as Exhibit 4.
Assignment
of Mortgage:
With
respect to each Mortgage Loan which is not a MERS Loan, an individual assignment
of the Mortgage, notice of transfer or equivalent instrument in recordable
form,
sufficient under the laws of the jurisdiction wherein the related Mortgaged
Property is located to give record notice of the sale of the Mortgage to
the
Purchaser.
Balloon
Mortgage Loan:
A
Mortgage Loan that provided on the date of origination for an amortization
schedule extending beyond its maturity date.
Balloon
Payment:
With
respect to any Balloon Mortgage Loan as of any date of determination, the
Monthly Payment payable on the maturity of such Mortgage Loan.
Business
Day:
Any day
other than a Saturday or Sunday, or a day on which banking and savings and
loan
institutions in the State of Connecticut, the State of California or the
State
of New York are authorized or obligated by law or executive order to be
closed.
Cash-Out
Refinancing:
A
Refinanced Mortgage Loan the proceeds of which were in excess of the principal
balance of any existing first mortgage and any subordinate mortgages on the
related Mortgaged Property and related closing costs, and were used to pay
any
such existing first mortgage, related closing costs and subordinate mortgages
on
the related Mortgaged Property.
Closing
Date:
The
date or dates on which the Initial Purchaser from time to time shall purchase
and the Seller from time to time shall sell to the Initial Purchaser, the
Mortgage Loans listed on the related Mortgage Loan Schedule with respect
to the
related Mortgage Loan Package.
-2-
Closing
Documents:
With
respect to any Closing Date, the documents required pursuant to
Section 9.
Code:
The
Internal Revenue Code of 1986, or any successor statute thereto.
Combined
Loan-to-Value Ratio or CLTV: With
respect to any Mortgage Loan as of any date of determination, the ratio on
such
date of the outstanding principal amount of the Mortgage Loan and any other
mortgage loan which is secured by a lien on the related Mortgaged Property
to
the Appraised Value of the Mortgaged Property.
Commission:
The
United States Securities and Exchange Commission.
Condemnation
Proceeds:
All
awards, compensation and settlements in respect of a taking of all or part
of a
Mortgaged Property by exercise of the power of condemnation or the right
of
eminent domain.
Confirmation:
With
respect to any Mortgage Loan Package purchased and sold on any Closing Date,
the
letter agreement between the Initial Purchaser and the Seller (including
any
exhibits, schedules and attachments thereto), setting forth the terms and
conditions of such transaction and describing the Mortgage Loans to be purchased
by the Initial Purchaser on such Closing Date. A Confirmation may relate
to more
than one Mortgage Loan Package to be purchased on one or more Closing Dates
hereunder.
Convertible
Mortgage Loan:
A
Mortgage Loan that by its terms and subject to certain conditions contained
in
the related Mortgage or Mortgage Note allows the Mortgagor to convert the
adjustable Mortgage Interest Rate on such Mortgage Loan to a fixed Mortgage
Interest Rate.
Credit
Score:
With
respect to any Mortgage Loan, the credit score of the related Mortgagor provided
by Fair, Xxxxx & Company, Inc. or such other organization acceptable to the
Initial Purchaser providing credit scores at the time of the origination
of such
Mortgage Loan. If two credit scores are obtained, the Credit Score shall
be the
lower of the two credit scores. If three credit scores are obtained, the
Credit
Score shall be the middle of the three credit scores.
Custodial
Account:
The
separate account or accounts, each of which shall be an Eligible Account,
created and maintained pursuant to this Agreement, which shall be entitled
“Xxxxxx Savings and Loan Association, F.A., as servicer, in trust for the
Purchaser, Fixed and Adjustable Rate Mortgage Loans”, established at a financial
institution acceptable to the Purchaser.
Custodial
Agreement:
The
agreement governing the retention of the originals of each Mortgage Note,
Mortgage, Assignment of Mortgage and other Mortgage Loan Documents.
-3-
Custodian:
The
custodian under the Custodial Agreement, or its successor in interest or
assigns, or any successor to the Custodian under the Custodial Agreement,
as
therein provided.
Cut-off
Date:
The
first day of the month in which the related Closing Date occurs.
Deleted
Mortgage Loan:
A
Mortgage Loan replaced or to be replaced by a Qualified Substitute Mortgage
Loan.
Depositor:
The
depositor, as such term is defined in Regulation AB, with respect to any
Securitization Transaction.
Determination
Date:
With
respect to each Distribution Date, the fifteenth (15th) day of the calendar
month in which such Distribution Date occurs or, if such fifteenth (15th)
day is
not a Business Day, the Business Day immediately preceding such fifteenth
(15th)
day.
Distribution
Date:
The
eighteenth (18th) day of each month, commencing on the eighteenth day of
the
month next following the month in which the related Cut-off Date occurs,
or if
such eighteenth (18th) day is not a Business Day, the first Business Day
immediately preceding such eighteenth (18th) day.
Due
Date:
With
respect to each Mortgage Loan, the day of the calendar month on which each
Monthly Payment is due on such Mortgage Loan (including the Balloon Payment
with
respect to a Balloon Mortgage Loan), exclusive of any days of
grace.
Due
Period:
With
respect to each Distribution Date, the period commencing on the second day
of
the month preceding the month of the Distribution Date and ending on the
first
day of the month of the Distribution Date.
Eligible
Account:
Either
(i) an account or accounts maintained with a federal or state chartered
depository institution or trust company the short-term unsecured debt
obligations of which (or, in the case of a depository institution or trust
company that is the principal subsidiary of a holding company, the short-term
unsecured debt obligations of such holding company) are rated A-1 by S&P or
Prime-1 by Moody's (or a comparable rating if another rating agency is specified
by the Initial Purchaser by written notice to the Seller) at the time any
amounts are held on deposit therein, (ii) an account or accounts the deposits
in
which are fully insured by the FDIC, (iii) a trust account or accounts
maintained with a federal or state chartered depository institution or trust
company acting in its fiduciary capacity, or (iv) Xxxxxx Savings and Loan
Association, F.A., provided that the short-term unsecured debt obligations
of
which are rated A-2 or higher by S&P. Eligible Accounts may bear
interest.
Escrow
Account:
The
separate trust account or accounts created and maintained pursuant to this
Agreement which shall be entitled “Xxxxxx Savings and Loan Association, F.A., as
servicer, in trust for the Purchaser and various Mortgagors, Fixed and
Adjustable Rate Mortgage Loans”, established at a financial institution
acceptable to the Purchaser.
Escrow
Payments:
The
amounts constituting ground rents, taxes, assessments, water charges, sewer
rents, Primary Insurance Policy premiums, fire and hazard insurance premiums
and
other payments required to be escrowed by the Mortgagor with the Mortgagee
pursuant to the terms of any Mortgage Note or Mortgage.
-4-
Event
of Default:
Any one
of the events enumerated in Subsection 15.01.
Exchange
Act:
The
Securities Exchange Act of 1934, as amended.
Xxxxxx
Mae:
Xxxxxx
Xxx or any successor thereto.
Xxxxxx
Mae Guide:
The
Xxxxxx Xxx Servicing Guide and all amendments or additions thereto.
FDIC:
The
Federal Deposit Insurance Corporation, or any successor thereto.
Final
Recovery Determination:
With
respect to any defaulted Mortgage Loan or any REO Property (other than a
Mortgage Loan or REO Property purchased by the Seller pursuant to this
Agreement), a determination made by the Seller that all Insurance Proceeds,
Liquidation Proceeds and other payments or recoveries which the Seller, in
its
reasonable good faith judgment, expects to be finally recoverable in respect
thereof have been so recovered. The Seller shall maintain records, prepared
by a
servicing officer of the Seller, of each Final Recovery
Determination.
Fixed
Rate Mortgage Loan:
A
Mortgage Loan with respect to which the Mortgage Interest Rate set forth
in the
Mortgage Note is fixed for the term of such Mortgage Loan.
Flood
Zone Service Contract:
A
transferable contract maintained for the Mortgaged Property with a nationally
recognized flood zone service provider for the purpose of obtaining the current
flood zone status relating to such Mortgaged Property.
Xxxxxxx
Mac:
Xxxxxxx
Mac or any successor thereto.
Gross
Margin:
With
respect to any Adjustable Rate Mortgage Loan, the fixed percentage amount
set
forth in the related Mortgage Note and the related Mortgage Loan Schedule
that
is added to the Index on each Adjustment Date in accordance with the terms
of
the related Mortgage Note to determine the new Mortgage Interest Rate for
such
Mortgage Loan.
HUD:
The
United States Department of Housing and Urban Development or any successor
thereto.
Index:
With
respect to any Adjustable Rate Mortgage Loan, the index identified on the
Mortgage Loan Schedule and set forth in the related Mortgage Note for the
purpose of calculating the interest rate thereon.
Initial
Closing Date:
The
Closing Date on which the Initial Purchaser purchases and the Seller sells
the
first Mortgage Loan Package hereunder.
Insurance
Proceeds:
With
respect to each Mortgage Loan, proceeds of insurance policies insuring the
Mortgage Loan or the related Mortgaged Property.
-5-
Lender
Paid Mortgage Insurance Policy or LPMI Policy:
A
policy of mortgage guaranty insurance issued by a Qualified Insurer in which
the
owner or servicer of the Mortgage Loan is responsible for the premiums
associated with such mortgage insurance policy.
Liquidation
Proceeds:
Amounts, other than Insurance Proceeds and Condemnation Proceeds, received
in
connection with the liquidation of a defaulted Mortgage Loan through trustee's
sale, foreclosure sale or otherwise, other than amounts received following
the
acquisition of REO Property.
Loan-to-Value
Ratio
or
LTV:
With
respect to any Mortgage Loan as of any date of determination, the ratio on
such
date of the outstanding principal amount of the Mortgage Loan to the Appraised
Value of the Mortgaged Property.
LPMI
Fee:
The
portion of the Mortgage Interest Rate relating to an LPMI Loan which is used
to
pay the premium due on the LPMI Policy with respect to such LPMI
Loan.
LPMI
Loan:
Any
Mortgage Loan with respect to which Seller or the subsequent owner or servicer
is responsible for paying the premium due on the related LPMI Policy with
the
proceeds generated by the LPMI Fee relating to such Mortgage Loan.
Master
Servicer:
With
respect to any Securitization Transaction, the “master servicer”, if any,
specified by the Purchaser and identified in the related transaction
documents.
Maximum
Mortgage Interest Rate:
With
respect to each Adjustable Rate Mortgage Loan, a rate that is set forth on
the
related Mortgage Loan Schedule and in the related Mortgage Note and is the
maximum interest rate to which the Mortgage Interest Rate on such Mortgage
Loan
may be increased during the term of the Mortgage Loan.
MERS:
Mortgage Electronic Registration Systems, Inc., a corporation organized and
existing under the laws of the State of Delaware, or any successor
thereto.
MERS®
System:
The
system of recording transfers of Mortgages electronically maintained by
MERS.
MIN:
The
Mortgage Identification Number of Mortgage Loans registered with MERS on
the
MERS® System.
Minimum
Mortgage Interest Rate:
With
respect to each Adjustable Rate Mortgage Loan, a rate that is set forth on
the
related Mortgage Loan Schedule and in the related Mortgage Note and is the
minimum interest rate to which the Mortgage Interest Rate on such Mortgage
Loan
may be decreased during the term of the Mortgage Loan.
MOM
Loan:
Any
Mortgage Loan where MERS acts as the mortgagee of record of such Mortgage
Loan,
solely as nominee for the originator of such Mortgage Loan and its successors
and assigns, at the origination thereof.
Monthly
Advance:
The
aggregate of the advances made by the Seller on any Distribution Date pursuant
to Subsection 11.21.
-6-
Monthly
Payment:
With
respect to any Mortgage Loan, the scheduled combined payment of principal
and
interest (including any Balloon Payment) payable by a Mortgagor under the
related Mortgage Note on each Due Date.
Moody's:
Xxxxx'x
Investors Service, Inc. or its successor in interest.
Mortgage:
The
mortgage, deed of trust or other instrument creating a first or second lien
on
Mortgaged Property securing the Mortgage Note.
Mortgage
File:
The
items pertaining to a particular Mortgage Loan referred to in Exhibit
5
annexed
hereto, and any additional documents required to be added to the Mortgage
File
pursuant to this Agreement or the related Confirmation.
Mortgage
Interest Rate:
With
respect to each Fixed Rate Mortgage Loan, the fixed annual rate of interest
provided for in the related Mortgage Note and, with respect to each Adjustable
Rate Mortgage Loan, the annual rate that interest accrues on such Adjustable
Rate Mortgage Loan from time to time in accordance with the provisions of
the
related Mortgage Note.
Mortgage
Loan:
Each
first or second lien, residential mortgage loan, sold, assigned and transferred
to the Purchaser pursuant to this Agreement and the related Confirmation
and
identified on the Mortgage Loan Schedule annexed to this Agreement on such
Closing Date, which Mortgage Loan includes without limitation the Mortgage
File,
the Monthly Payments, Prepayment Charges, Liquidation Proceeds, Condemnation
Proceeds, Insurance Proceeds, REO Disposition proceeds, and all other rights,
benefits, proceeds and obligations arising from or in connection with such
Mortgage Loan.
Mortgage
Loan Documents:
The
documents listed on Exhibit 6 to this Agreement pertaining to any Mortgage
Loan.
Mortgage
Loan Package:
The
Mortgage Loans listed on a Mortgage Loan Schedule, delivered to the Custodian
and the Initial Purchaser at least five (5) Business Days prior to the related
Closing Date and attached to this Agreement as Schedule
I
on the
related Closing Date.
Mortgage
Loan Schedule:
With
respect to each Mortgage Loan Package, the schedule of Mortgage Loans to
be
annexed hereto as Schedule
I
(or a
supplement thereto) on each Closing Date for the Mortgage Loan Package delivered
on such Closing Date in both hard copy and in electronic format acceptable
to
the Seller and Purchaser, such schedule setting forth the following information
with respect to each Mortgage Loan in the Mortgage Loan Package: (1) the
Seller's Mortgage Loan identifying number; (2) the Mortgagor's first and
last
name; (3) the street address of the Mortgaged Property including the city,
state
and zip code; (4) the original months to maturity; (5) the stated maturity
date;
(6) the original principal amount of the Mortgage Loan and, with respect
to
second liens, the related first lien on the Mortgaged Property; (7) the Stated
Principal Balance of the Mortgage Loan and with respect to second liens the
principal balance of the related first lien on the Mortgaged Property as
of the
close of business on the Cut-off Date; (8) the original date of the Mortgage
Loan and the remaining months to maturity from the Cut-off Date, based on
the
original amortization schedule; (9) [Reserved]; (10) the date on which the
first
Monthly Payment was due on the Mortgage Loan and, if such date is not consistent
with the Due Date currently in effect, such Due Date; (11) the Mortgage Interest
Rate at origination; (12) the Mortgage Interest Rate in effect immediately
following the Cut-off Date; (13) the Servicing Fee Rate; (14)
the
Net Mortgage Rate as of the Cut-off Date; (15) the amount of the Monthly
Payment
at origination and as of the Cut-off Date; (16) the last Due Date on which
a
Monthly Payment was actually applied to the unpaid Stated Principal Balance;
(17) a code indicating whether the Mortgage Loan is an Adjustable Rate Mortgage
Loan or a Fixed Rate Mortgage Loan; (18) with respect to each Adjustable
Rate
Mortgage Loan, the initial Adjustment Date; (19) with respect to each Adjustable
Rate Mortgage Loan, the Gross Margin; (20) with respect to each Adjustable
Rate
Mortgage Loan, the Maximum Mortgage Interest Rate under the terms of the
Mortgage Note; (21) with respect to each Adjustable Rate Mortgage Loan, the
Minimum Mortgage Interest Rate under the terms of the Mortgage Note; (22)
with
respect to each Adjustable Rate Mortgage Loan, the Periodic Rate Cap; (23)
with
respect to each Adjustable Rate Mortgage Loan, the first Adjustment Date
immediately following the Cut-off Date; (24) with respect to each Adjustable
Rate Mortgage Loan, the Index; (25) a code indicating the purpose of the
loan
(i.e., purchase financing, Rate/Term Refinancing, Cash-Out Refinancing);
(26) a
code indicating the documentation style (i.e., full, alternative or reduced);
(27) a code indicating the occupancy status of the Mortgaged Property (i.e.,
owner-occupied, second home or investor property); (28) the type of Residential
Dwelling constituting the Mortgaged Property (including the number of units
if
the Residential Dwelling is a two- to four-family property); (29)
product type (i.e. fixed, adjustable, 3/1, 5/1, etc.); (30) the debt-to-income
ratio of the related Mortgagor at the time of origination of the Mortgage
Loan;
(31) a
code indicating the Credit Score of the Mortgagor at the time of origination
of
the Mortgage Loan; (32)
the
Appraised Value of the Mortgaged Property; (33) the sale price of the Mortgaged
Property, if applicable; (34) the Loan-to-Value Ratio and Combined Loan-to-Value
Ratio, if applicable, at origination; (35) a code indicating whether the
Mortgage Loan is subject to a Prepayment Charge; (36) the amount and the
original term of any Prepayment Charge; (37) a code indicating whether any
Prepayment Charge is required to be paid only upon the refinancing of the
related Mortgage Loan (i.e., a “soft prepayment charge”) or upon the sale of the
related Mortgaged Property or any other prepayment in full of the related
Mortgage Loan (i.e., a “hard prepayment charge”); (38) with respect to each MERS
Mortgage Loan, the related MIN; (39) a code indicating if the Mortgage Loan
is a
Negative Amortization Mortgage Loan and if so, the Negative Amortization
Cap and
the Payment Adjustment Date; (40) a code indicating if the Mortgage Loan
is an
interest-only Mortgage Loan and, if so, the term of the interest-only period
of
such Mortgage Loan; (41) a code indicating whether the Mortgage Loan is a
first
or second lien; (42) a code indicating whether the Mortgage Loan is a Balloon
Mortgage Loan and, if so, the term of the Balloon Mortgage Loan and the amount
of the Balloon Payment scheduled to be due at maturity assuming no Principal
Prepayments; (43) a code indicating if the Mortgage Loan is subject to a
Primary
Insurance Policy or LPMI Policy, and if so, the insurer; and (44) the LPMI
Fee,
if applicable. With respect to the Mortgage Loan Package in the aggregate,
the
Mortgage Loan Schedule shall set forth the following information, as of the
related Cut-off Date: (1) the number of Mortgage Loans; (2) the current
principal balance of the Mortgage Loans; (3) the weighted average Mortgage
Interest Rate of the Mortgage Loans; and (4) the weighted average maturity
of
the Mortgage Loans. Schedule
I
hereto
shall be supplemented as of each Closing Date to reflect the addition of
the
Mortgage Loan Schedule with respect to the related Mortgage Loan
Package.
-7-
Mortgage
Note:
The
original executed note or other evidence of the Mortgage Loan indebtedness
of a
Mortgagor.
Mortgaged
Property:
The
Mortgagor's real property securing repayment of a related Mortgage Note,
consisting of a fee simple interest in a single parcel of real property improved
by a Residential Dwelling.
Mortgagee:
The
mortgagee or beneficiary named in the Mortgage and the successors and assigns
of
such mortgagee or beneficiary.
Mortgagor:
The
obligor on a Mortgage Note, the owner of the Mortgaged Property and the grantor
or mortgagor named in the related Mortgage and such grantor's or mortgagor's
successor's in title to the Mortgaged Property.
Negative
Amortization:
With
respect to each Negative Amortization Mortgage Loan, that portion of interest
accrued at the Mortgage Interest Rate in any month which exceeds the Monthly
Payment on the related Mortgage Loan for such month and which, pursuant to
the
terms of the Mortgage Note, is added to the principal balance of the Mortgage
Loan.
Negative
Amortization Cap:
With
respect to each Negative Amortization Mortgage Loan, the provision of each
Mortgage Note which provides for an absolute maximum percentage of the original
principal amount of such Mortgage Loan that the outstanding principal amount
of
the Mortgage Loan may reach as a result of Negative Amortization as specified
on
the Mortgage Loan Schedule.
Negative
Amortization Mortgage Loan:
Each
Mortgage Loan that is identified on the Mortgage Loan Schedule as a Mortgage
Loan that may be subject to Negative Amortization.
Net
Mortgage Rate:
With
respect to any Mortgage Loan (or the related REO Property), as of any date
of
determination, a per annum rate of interest equal to the then applicable
Mortgage Interest Rate for such Mortgage Loan minus the Servicing Fee
Rate.
Nonrecoverable
Monthly Advance:
Any
Monthly Advance previously made or proposed to be made in respect of a Mortgage
Loan or REO Property that, in the good faith business judgment of the Seller,
will not, or, in the case of a proposed Monthly Advance, would not be,
ultimately recoverable from related late payments, Insurance Proceeds or
Liquidation Proceeds on such Mortgage Loan or REO Property as provided
herein.
Officer's
Certificate:
A
certificate signed by the Chairman of the Board or the Vice Chairman of the
Board or a President or a Vice President and by the Treasurer or the Secretary
or one of the Assistant Treasurers or Assistant Secretaries of the Person
on
behalf of whom such certificate is being delivered.
-8-
Opinion
of Counsel:
A
written opinion of counsel, who may be salaried counsel for the Person on
behalf
of whom the opinion is being given, reasonably acceptable to each Person
to whom
such opinion is addressed.
Payment
Adjustment Date:
With
respect to each Negative Amortization Mortgage Loan, the date on which Monthly
Payments shall be adjusted. A Payment Adjustment Date with respect to a Negative
Amortization Mortgage Loan shall occur on each anniversary date of the first
payment for the Mortgage Loan.
Periodic
Rate Cap:
With
respect to each Adjustable Rate Mortgage Loan and any Adjustment Date therefor,
a number of percentage points per annum that is set forth in the related
Mortgage Loan Schedule and in the related Mortgage Note, which is the maximum
amount by which the Mortgage Interest Rate for such Adjustable Rate Mortgage
Loan may increase (without regard to the Maximum Mortgage Interest Rate)
or
decrease (without regard to the Minimum Mortgage Interest Rate) on such
Adjustment Date from the Mortgage Interest Rate in effect immediately prior
to
such Adjustment Date.
Person:
An
individual, corporation, limited liability company, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Preliminary
Servicing Period:
With
respect to any Mortgage Loans, the period commencing on the related Closing
Date
and ending on the date the Seller enters into Reconstitution Agreements which
amend or restate the servicing provisions of this Agreement.
Prepayment
Charge:
With
respect to any Mortgage Loan, any prepayment penalty or premium thereon payable
in connection with a Principal Prepayment on such Mortgage Loan pursuant
to the
terms of the related Mortgage Note.
Primary
Insurance Policy:
A
policy of primary mortgage guaranty insurance issued by a Qualified
Insurer.
Principal
Prepayment:
Any
payment or other recovery of principal on a Mortgage Loan which is received
in
advance of its scheduled Due Date, including any Prepayment Charge, which
is not
accompanied by an amount of interest representing scheduled interest due
on any
date or dates in any month or months subsequent to the month of
prepayment.
Purchase
Price:
The
price paid on the related Closing Date by the Initial Purchaser to the Seller
pursuant to the related Confirmation in exchange for the Mortgage Loans
purchased on such Closing Date as calculated as provided in
Section 4.
Qualified
Correspondent:
Any
Person from which the Seller purchased Mortgage Loans, provided that the
following conditions are satisfied: (i) such Mortgage Loans were originated
pursuant to an agreement between the Seller and such Person that contemplated
that such Person would underwrite mortgage loans from time to time, for sale
to
the Seller, in accordance with underwriting guidelines designated by the
Seller
(“Designated Guidelines”) or guidelines that do not vary materially from such
Designated Guidelines; (ii) such Mortgage Loans were in fact underwritten
as
described in clause (i) above and were acquired by the Seller within 180
days
after origination; (iii) either (x) the Designated Guidelines were, at the
time
such Mortgage Loans were originated, used by the Seller in origination of
mortgage loans of the same type as the Mortgage Loans for the Seller’s own
account or (y) the Designated Guidelines were, at the time such Mortgage
Loans
were underwritten, designated by the Seller on a consistent basis for use
by
lenders in originating mortgage loans to be purchased by the Seller; and
(iv)
the Seller employed, at the time such Mortgage Loans were acquired by the
Seller, pre-purchase or post-purchase quality assurance procedures (which
may
involve, among other things, review of a sample of mortgage loans purchased
during a particular time period or through particular channels) designed
to
ensure that Persons from which it purchased mortgage loans properly applied
the
underwriting criteria designated by the Seller.
-9-
Qualified
Insurer:
An
insurance company duly qualified as such under the laws of the states in
which
the Mortgaged Property is located, duly authorized and licensed in such states
to transact the applicable insurance business and to write the insurance
provided, and approved as an insurer by Xxxxxx Xxx or Xxxxxxx Mac and whose
claims paying ability is rated in the two highest rating categories by the
nationally recognized rating agencies with respect to primary mortgage insurance
and in the two highest rating categories by AM Best’s with respect to hazard and
flood insurance.
Qualified
Substitute Mortgage Loan:
A
mortgage loan substituted for a Deleted Mortgage Loan pursuant to the terms
of
this Agreement which must, on the date of such substitution, (i) have an
outstanding principal balance, after application of all scheduled payments
of
principal and interest due during or prior to the month of substitution,
not in
excess of the Stated Principal Balance of the Deleted Mortgage Loan as of
the
Due Date in the calendar month during which the substitution occurs, (ii)
have a
Mortgage Interest Rate not less than (and not more than one percentage point
in
excess of) the Mortgage Interest Rate of the Deleted Mortgage Loan, (iii)
have a
Net Mortgage Rate equal to the Net Mortgage Rate of the Deleted Mortgage
Loan,
(iv) have a remaining term to maturity not greater than (and not more than
one
year less than) that of the Deleted Mortgage Loan, (v) have the same Due
Date as
the Due Date on the Deleted Mortgage Loan, (vi) have a Loan-to-Value Ratio,
and
in the case of a second lien Mortgage Loan, a Combined Loan-to-Value Ratio
as of
the date of substitution equal to or lower than the Loan-to-Value Ratio and
Combined Loan-to-Value Ratio of the Deleted Mortgage Loan as of such date,
(vii)
have a Credit Score for the related Mortgagor not lower than that of the
Mortgagor under the Deleted Mortgage Loan; (viii) conform to each representation
and warranty set forth in Subsection 7.02 of this Agreement; (ix) be
covered under a Primary Insurance Policy if such Qualified Substitute Mortgage
Loan has a Loan-to-Value Ratio in excess of 80%; and (x) be the same type
of
mortgage loan (i.e., lien status, fixed or adjustable rate with the same
Gross
Margin, Periodic Rate Cap and Index as the Deleted Mortgage Loan, and if
an
Adjustable Rate Mortgage Loan, the same type (e.g., 3/1, 5/1).
Rate/Term
Refinancing:
A
Refinanced Mortgage Loan, the proceeds of which are not in excess of the
existing first mortgage loan and any subordinate mortgage loan of the Mortgagor
on the related Mortgaged Property and related closing costs, and were used
exclusively to satisfy the then existing first mortgage loan and any subordinate
mortgage loan of the Mortgagor on the related Mortgaged Property and to pay
related closing costs and provide cash to the related Mortgagor in an amount
equal to the lesser of (i) $2,000 or (ii) 2% of the principal balance of
such
Refinanced Mortgage Loan.
-10-
Reconstitution:
Any
Securitization Transaction or Whole Loan Transfer.
Reconstitution
Agreement:
The
agreement or agreements entered into by the Seller and the Purchaser and/or
certain third parties on the Reconstitution Date or Dates with respect to
any or
all of the Mortgage Loans serviced hereunder, in connection with a Whole
Loan
Transfer or a Securitization Transaction as provided in
Section 12.
Reconstitution
Date:
The
date or dates on which any or all of the Mortgage Loans serviced under this
Agreement shall be removed from this Agreement and reconstituted as part
of a
Whole Loan Transfer or Securitization Transaction pursuant to Section 12
hereof.
Record
Date:
With
respect to each Distribution Date, the last Business Day of the month
immediately preceding the month in which such Distribution Date
occurs.
Refinanced
Mortgage Loan:
A
Mortgage Loan the proceeds of which were not used to purchase the related
Mortgaged Property.
Regulation
AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject
to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
REMIC:
A “real
estate mortgage investment conduit” within the meaning of Section 860D of
the Code.
REMIC
Provisions:
Provisions of the federal income tax law relating to REMIC’s, which appear in
Sections 860A through 860G of the Code, and related provisions, and proposed,
temporary and final regulations and published rulings, notices and announcements
promulgated thereunder, as the foregoing may be in effect from time to
time.
REO
Account:
The
separate trust account or accounts created and maintained pursuant to this
Agreement which shall be entitled “Xxxxxx Savings and Loan Association, F.A. in
trust for the Purchaser, as of [date of acquisition of title], Fixed and
Adjustable Rate Mortgage Loans”.
REO
Disposition:
The
final sale by the Seller of any REO Property.
REO
Property:
A
Mortgaged Property acquired as a result of the liquidation of a Mortgage
Loan.
Repurchase
Price:
With
respect to any Mortgage Loan, a price equal to (i) the Stated Principal Balance
of such Mortgage Loan, plus (ii) interest on such Stated Principal Balance
at
the Mortgage Interest Rate from and including the last Due Date through which
interest has been paid by or on behalf of the Mortgagor to the first day
of the
month following the date of repurchase, less amounts received in respect
of such
repurchased Mortgage Loan which are being held in the Custodial Account for
distribution in connection with such Mortgage Loan, plus (iii) any unreimbursed
servicing advances and monthly advances (including nonrecoverable monthly
advances) and any unpaid servicing fees allocable to such Mortgage Loan paid
by
any party other than the Seller, plus (iv) any costs and expenses incurred
by
the Purchaser, the servicer, master servicer or any trustee in respect of
the
breach or defect giving rise to the repurchase obligation including without
limitation any costs and damages incurred by any such party in connection
with
any violation by any such Mortgage Loan of any predatory or abusive lending
law.
-11-
Residential
Dwelling:
Any one
of the following: (i) a detached one-family dwelling, (ii) a detached two-
to
four-family dwelling, (iii) a one-family dwelling unit in a Xxxxxx Mae eligible
condominium project, or (iv) a detached one-family dwelling in a planned
unit
development, none of which is a co-operative, mobile or manufactured
home.
Securities
Act:
The
Securities Act of 1933, as amended.
Securitization
Transaction:
Any
transaction involving either (1) a sale or other transfer of some or all
of the
Mortgage Loans directly or indirectly to an issuing entity in connection
with an
issuance of publicly offered or privately placed, rated or unrated
mortgage-backed securities or (2) an issuance of publicly offered or privately
placed, rated or unrated securities, the payments on which are determined
primarily by reference to one or more portfolios of residential mortgage
loans
consisting, in whole or in part, of some or all of the Mortgage
Loans.
Seller
Information:
As
defined in Section 13.07(a)(i).
Servicer:
As
defined in Section 13.03(iii).
Servicing
Addendum:
The
terms and conditions attached hereto as Exhibit 9 which will govern the
servicing of the Mortgage Loans by Seller during the Preliminary Servicing
Period.
Servicing
Advances:
All
customary, reasonable and necessary “out-of-pocket” costs and expenses incurred
by the Seller in the performance of its servicing obligations, including,
but
not limited to, the cost of (i) preservation, restoration and repair of a
Mortgaged Property, (ii) any enforcement or judicial proceedings with respect
to
a Mortgage Loan, including foreclosure actions and (iii) the management and
liquidation of REO Property.
Servicing
Criteria:
The
“servicing criteria” set forth in Item 1122(d) of Regulation AB, as such may be
amended from time to time.
Servicing
Fee:
With
respect to each Mortgage Loan, the amount of the annual servicing fee the
Purchaser shall pay to the Seller, which shall, for each month, be equal
to
one-twelfth of the product of (a) the Servicing Fee Rate and (b) the unpaid
principal balance of the Mortgage Loan. Such fee shall be payable monthly,
computed on the basis of the same principal amount and period respectively
which
any related interest payment on a Mortgage Loan is computed. The obligation
of
the Purchaser to pay the Servicing Fee is limited to, and payable solely
from,
the interest portion (including recoveries with respect to interest from
Liquidation Proceeds and other proceeds, to the extent permitted by
Subsection 11.05 of the Servicing Addendum) of related Monthly Payment
collected by the Seller, or as otherwise provided under Subsection 11.05 of
the Servicing Addendum. If the Preliminary Servicing Period includes any
partial
month, the Servicing Fee for such month shall be pro rated at a per diem
rate
based upon a 30 day month.
-12-
Servicing
Fee Rate:
The per
annum rate at which the Servicing Fee accrues, which rate shall be specified
on
the Mortgage Loan Schedule.
Servicing
File:
With
respect to each Mortgage Loan, the file retained by the Seller consisting
of
originals of all documents in the Mortgage File which are not delivered to
the
Purchaser or the Custodian and copies of the Mortgage Loan
Documents.
S&P:
Standard & Poor's Ratings Group or its successor in interest.
Stated
Principal Balance:
As to
each Mortgage Loan as of any date of determination, (i) the principal balance
of
the Mortgage Loan as of the Cut-off Date after giving effect to payments
of
principal due on or before such date, whether or not collected from the
Mortgagor, minus (ii) all amounts previously distributed to the Purchaser
with
respect to the related Mortgage Loan representing payments or recoveries
of
principal, plus (iii) the cumulative amount of any Negative
Amortization.
Static
Pool Information:
Static
pool information as described in Item 1105(a)(1)-(3) and 1105(c) of Regulation
AB.
Subcontractor:
Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of Mortgage Loans but performs one or
more
discrete functions identified in Item 1122(d) of Regulation AB with respect
to
Mortgage Loans under the direction or authority of the Seller or a
Subservicer.
Subservicer:
Any
Person that services Mortgage Loans on behalf of the Seller or any Subservicer
and is responsible for the performance (whether directly or through Subservicers
or Subcontractors) of a substantial portion of the material servicing functions
required to be performed by the Seller under this Agreement or any
Reconstitution Agreement that are identified in Item 1122(d) of Regulation
AB.
Sub-Servicing
Agreement:
The
written contract between the Seller and a Subservicer relating to servicing
and
administration of certain Mortgage Loans as provided in Subsection 11.30
of the
Servicing Addendum.
Tax
Service Contract:
A
transferable contract maintained for the Mortgaged Property with a tax service
provider for the purpose of obtaining current information from local taxing
authorities relating to such Mortgaged Property.
Third-Party
Originator:
Each
Person, other than a Qualified Correspondent, that originated Mortgage Loans
acquired by the Seller. A wholesale broker for the Seller shall not be deemed
for purposes of this Agreement to be a Third-Party Originator.
-13-
Underwriting
Guidelines:
The
Seller’s written underwriting guidelines in the form delivered to the Initial
Purchaser, in effect with respect to the Mortgage Loans purchased by the
Initial
Purchaser on the Initial Closing Date, as amended, supplemented or modified
from
time to time thereafter with prior written notice to the Initial
Purchaser.
Whole
Loan Transfer:
Any
sale or transfer of some or all of the Mortgage Loans, other than a
Securitization Transaction
SECTION
2. Agreement
to Purchase.
The
Seller agrees to sell, and the Initial Purchaser agrees to purchase, from
time-to-time, Mortgage Loans having an aggregate principal balance on the
related Cut-off Date in an amount as set forth in the related Confirmation,
or
in such other amount as agreed by the Initial Purchaser and the Seller as
evidenced by the actual aggregate principal balance of the Mortgage Loans
accepted by the Initial Purchaser on the related Closing Date.
SECTION
3. Mortgage
Loan Schedules.
The
Seller shall deliver the Mortgage Loan Schedule for a Mortgage Loan Package
to
be purchased on a particular Closing Date to the Initial Purchaser at least
five
(5) Business Days prior to the related Closing Date.
SECTION
4. Purchase
Price.
The
Purchase Price for each Mortgage Loan listed on the related Mortgage Loan
Schedule shall be the percentage of par as stated in the related Confirmation
(subject to adjustment as provided therein), multiplied by its Stated Principal
Balance as of the related Cut-off Date. If so provided in the related
Confirmation, certain Mortgage Loans shall be priced separately.
In
addition to the Purchase Price as described above, the Initial Purchaser
shall
pay to the Seller, at closing, accrued interest on the Stated Principal Balance
of each Mortgage Loan as of the related Cut-off Date at its Net Mortgage
Rate
from the related Cut-off Date through the day prior to the related Closing
Date,
both inclusive.
The
Purchaser shall own and be entitled to receive with respect to each Mortgage
Loan purchased, (1) all scheduled principal due after the related Cut-off
Date,
(2) all other recoveries of principal and any Prepayment Charges collected
after
the related Cut-off Date (provided, however, that all scheduled payments
of
principal due on or before the related Cut-off Date and collected by the
Seller
after the related Cut-off Date shall belong to the Seller), and (3) all payments
of interest on the Mortgage Loans at the Net Mortgage Rate (minus that portion
of any such interest payment that is allocable to the period prior to the
related Cut-off Date). The Stated Principal Balance of each Mortgage Loan
as of
the related Cut-off Date is determined after application to the reduction
of
principal of payments of principal due on or before the related Cut-off Date
whether or not collected. Therefore, for the purposes of this Agreement,
payments of scheduled principal and interest prepaid for a Due Date beyond
the
related Cut-off Date shall not be applied to the principal balance as of
the
related Cut-off Date. Such prepaid amounts (minus the applicable Servicing
Fee)
shall be the property of the Purchaser. The Seller shall deposit any such
prepaid amounts into the Custodial Account, which account is established
for the
benefit of the Purchaser, for remittance by the Seller to the Purchaser on
the
first related Distribution Date. All payments of principal and interest,
less
the applicable Servicing Fee and any LPMI Fee, due on a Due Date following
the
related Cut-off Date shall belong to the Purchaser.
-14-
SECTION
5. Examination
of Mortgage Files.
In
addition to the rights granted to the Initial Purchaser under the related
Confirmation to underwrite the Mortgage Loans and review the Mortgage Files
prior to the Closing Date, prior to the related Closing Date, the Seller
shall,
at the Initial Purchaser’s option (a) deliver to the Custodian in escrow, for
examination with respect to each Mortgage Loan to be purchased on such Closing
Date, the related Mortgage File, including the Assignment of Mortgage,
pertaining to each Mortgage Loan, or (b) make the related Mortgage File
available to the Initial Purchaser for examination at the Seller's offices
or
such other location as shall otherwise be agreed upon by the Initial Purchaser
and the Seller. Such examination may be made by the Initial Purchaser or
its
designee at any reasonable time before or after the related Closing Date.
If the
Initial Purchaser makes such examination prior to the related Closing Date
and
identifies any Mortgage Loans that do not conform to the terms of the related
Confirmation (and any trade stipulations), the terms of this Agreement or
the
Underwriting Guidelines, such Mortgage Loans may, at the Initial Purchaser's
option, be rejected for purchase by the Initial Purchaser. If not purchased
by
the Initial Purchaser, such Mortgage Loans shall be deleted from the related
Mortgage Loan Schedule. The Initial Purchaser may, at its option and without
notice to the Seller, purchase all or part of any Mortgage Loan Package without
conducting any partial or complete examination. The fact that the Initial
Purchaser has conducted or has determined not to conduct any partial or complete
examination of the Mortgage Files shall not affect the Purchaser's (or any
of
its successors') rights to demand repurchase or other relief or remedy provided
for in this Agreement.
SECTION
6. Conveyance
from Seller to Initial Purchaser.
Subsection
6.01. Conveyance
of Mortgage Loans; Possession of Servicing Files.
The
Seller, simultaneously with the payment of the Purchase Price, shall execute
and
deliver to the Initial Purchaser an Assignment and Conveyance with respect
to
the related Mortgage Loan Package in the form attached hereto as Exhibit
4.
The
Servicing File retained by the Seller with respect to each Mortgage Loan
pursuant to this Agreement shall be appropriately identified in the Seller's
computer system to reflect clearly the sale of such related Mortgage Loan
to the
Purchaser. The Purchaser shall be entitled to receive all Prepayment Charges
required to be paid by a Mortgagor under the terms of any Mortgage Loan.
The
Seller shall release from its custody the contents of any Servicing File
retained by it only in accordance with this Agreement.
Subsection
6.02. Books
and Records.
Record
title to each Mortgage and the related Mortgage Note as of the related Closing
Date shall be in the name of the Seller, the Initial Purchaser, the Custodian
or
one or more designees of the Initial Purchaser, as the Initial Purchaser
shall
designate. Notwithstanding the foregoing, beneficial ownership of each Mortgage
and the related Mortgage Note shall be vested solely in the Purchaser or
the
appropriate designee of the Purchaser, as the case may be. All rights arising
out of the Mortgage Loans including, but not limited to, all funds received
by
the Seller after the related Cut-off Date on or in connection with a Mortgage
Loan as provided in Section 4 shall be vested in the Purchaser or one or
more designees of the Purchaser; provided, however, that all such funds received
on or in connection with a Mortgage Loan as provided in Section 4 shall be
received and held by the Seller in trust for the benefit of the Purchaser
or the
assignee of the Purchaser, as the case may be, as the owner of the Mortgage
Loans pursuant to the terms of this Agreement.
-15-
It
is the
express intention of the parties that the transactions contemplated by this
Agreement be, and be construed as, a sale of the Mortgage Loans by the Seller
and not a pledge of the Mortgage Loans by the Seller to the Purchaser to
secure
a debt or other obligation of the Seller. Consequently, the sale of each
Mortgage Loan shall be reflected as a sale on the Seller's business records,
tax
returns and financial statements.
Subsection
6.03. Delivery
of Mortgage Loan Documents.
Pursuant
to the Custodial Agreement to be executed among and delivered by the Initial
Purchaser, the Custodian and the Seller prior to the Initial Closing Date,
the
Seller shall from time to time in connection with each Closing Date, at least
five (5) Business Days prior to such Closing Date, deliver and release to
the
Custodian the Mortgage Loan Documents with respect to each Mortgage Loan
to be
purchased and sold on the related Closing Date and set forth on the related
Mortgage Loan Schedule delivered with such Mortgage Loan Documents.
The
Custodian shall certify its receipt of all such Mortgage Loan Documents required
to be delivered pursuant to the Custodial Agreement for the related Closing
Date, as evidenced by the Trust Receipt and Initial Certification of the
Custodian in the form annexed to the Custodial Agreement. The Purchaser shall
be
responsible for maintaining the Custodial Agreement during the Preliminary
Servicing Period. The fees and expenses of the Custodian during such period
shall be paid by the Purchaser.
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 this Agreement within two weeks of their
execution, provided, however, that the Seller shall provide the Custodian
with a
certified true copy of any such document submitted for recordation within
two
weeks of its execution, and shall provide the original of any document submitted
for recordation or a copy of such document certified by the appropriate public
recording office to be a true and complete copy of the original within two
hundred seventy (270) days of its submission for recordation. In the event
the
Seller cannot deliver the original recorded Mortgage or an original policy
of
title insurance on the related Closing Date, the Seller shall, promptly upon
receipt thereof and in any case not later than 180 days from the related
Closing
Date, deliver such original recorded Mortgage or original policy of title
insurance, as applicable, to the Custodian. Notwithstanding the foregoing,
in
the event an original Mortgage is not available or a Mortgage Loan for which
the
original Mortgage and/or the original policy of title insurance has not been
delivered, becomes subject to a Whole Loan Transfer or a Securitization
Transaction and any such transfer requires delivery of such original documents,
the Seller shall provide a copy of such Mortgage certified by the applicable
Seller, escrow agent, title insurer or closing attorney to be a true and
complete copy of the original recorded Mortgage and/or a marked insurance
commitment, as applicable, within thirty (30) days of such request.
-16-
Subsection
6.04 Quality
Control Procedures.
The
Seller shall have an internal quality control program that verifies, on a
regular basis, the existence and accuracy of the legal documents, credit
documents, property appraisals, and underwriting decisions. The program shall
include evaluating and monitoring the overall quality of the Seller’s loan
production and the servicing activities of the Seller. The program is to
ensure
that the Mortgage Loans are originated and serviced in accordance with Accepted
Servicing Standards and the Underwriting Guidelines; guard against dishonest,
fraudulent, or negligent acts; and guard against errors and omissions by
officers, employees, or other authorized persons.
SECTION
7. Representations,
Warranties and Covenants of the Seller: Remedies for Breach.
Subsection
7.01. Representations
and Warranties Respecting the Seller
The
Seller represents, warrants and covenants to the Initial Purchaser and to
any
subsequent Purchaser as of the Initial Closing Date and each subsequent Closing
Date or as of such date specifically provided herein or in the applicable
Assignment and Conveyance:
(i) The
Seller is a federal association duly organized, validly existing and in good
standing under the laws of the United States of America. The Seller has all
licenses necessary to carry out its business as now being conducted, and
is
licensed and qualified to transact business in and is in good standing under
the
laws of each state in which any Mortgaged Property is located or is otherwise
exempt under applicable law from such licensing or qualification or is otherwise
not required under applicable law to effect such licensing or qualification
and
no demand for such licensing or qualification has been made upon the Seller
by
any such state, and in any event the Seller is in compliance with the laws
of
any such state , to the extent such laws are applicable to the Seller, to
the
extent necessary to ensure the enforceability of each Mortgage Loan and the
servicing of the Mortgage Loans in accordance with the terms of this Agreement.
No licenses or approvals obtained by the Seller have been suspended or revoked
by any court, administrative agency, arbitrator or governmental body and
no
proceedings are pending which might result in such suspension or
revocation;
(ii) The
Seller has the full power and authority to hold each Mortgage Loan, to sell
each
Mortgage Loan, and to execute, deliver and perform, and to enter into and
consummate, all transactions contemplated by this Agreement. The Seller has
duly
authorized the execution, delivery and performance of this Agreement, has
duly
executed and delivered this Agreement, and this Agreement, assuming due
authorization, execution and delivery by the Purchaser, constitutes a legal,
valid and binding obligation of the Seller, enforceable against it in accordance
with its terms except as the enforceability thereof may be limited by
bankruptcy, insolvency or reorganization;
(iii) The
execution and delivery of this Agreement by the Seller and the performance
of
and compliance with the terms of this Agreement will not violate the Seller's
charter and other formation documents or constitute a default under or result
in
a breach or acceleration of, any material contract, agreement or other
instrument to which the Seller is a party or which may be applicable to the
Seller or its assets;
-17-
(iv) The
Seller is not in violation of, and the execution and delivery of this Agreement
by the Seller and its performance and compliance with the terms of this
Agreement will not constitute a violation with respect to, any order or decree
of any court or any order or regulation of any federal, state, municipal
or
governmental agency having jurisdiction over the Seller or its assets, which
violation might have consequences that would materially and adversely affect
the
condition (financial or otherwise) or the operation of the Seller or its
assets
or might have consequences that would materially and adversely affect the
performance of its obligations and duties hereunder;
(v) The
Seller is an approved seller/servicer for Xxxxxx Xxx and Xxxxxxx
Mac
in good
standing and is a HUD approved mortgagee pursuant to Section 203 of the
National Housing Act. No event has occurred, including but not limited to
a
change in insurance coverage, which would make the Seller unable to comply
with
Xxxxxx Mae, Xxxxxxx
Mac
or HUD
eligibility requirements or which would require notification to Xxxxxx Mae,
Xxxxxxx
Mac
or
HUD;
(vi) The
Seller does not believe, nor does it have any reason or cause to believe,
that
it cannot perform each and every covenant contained in this
Agreement;
(vii) The
Mortgage Note, the Mortgage, the Assignment of Mortgage and any other documents
required to be delivered with respect to each Mortgage Loan pursuant to the
Custodial Agreement, have been delivered to the Custodian all in compliance
with
the specific requirements of the Custodial Agreement. With respect to each
Mortgage Loan, the Seller is in possession of a complete Mortgage File in
compliance with Exhibit
5,
except
for such documents as have been delivered to the Custodian;
(viii) Immediately
prior to the payment of the Purchase Price for each Mortgage Loan, the Seller
was the owner of record of the related Mortgage and the indebtedness evidenced
by the related Mortgage Note and upon the payment of the Purchase Price by
the
Purchaser, in the event that the Seller retains record title, the Seller
shall
retain such record title to each Mortgage, each related Mortgage Note and
the
related Mortgage Files with respect thereto in trust for the Purchaser as
the
owner thereof and only for the purpose of servicing and supervising the
servicing of each Mortgage Loan;
(ix) There
are
no actions or proceedings against, or investigations of, the Seller before
any
court, administrative or other tribunal (A) that might prohibit its entering
into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans
or
the consummation of the transactions contemplated by this Agreement or (C)
that
might prohibit or materially and adversely affect the performance by the
Seller
of its obligations under, or the validity or enforceability of, this
Agreement;
(x) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Seller
of,
or compliance by the Seller with, this Agreement or the consummation of the
transactions contemplated by this Agreement, except for such consents,
approvals, authorizations or orders, if any, that have been obtained prior
to
the Closing Date;
-18-
(xi) The
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Seller, and the transfer, assignment and
conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant
to
this Agreement are not subject to the bulk transfer or any similar statutory
provisions;
(xii) The
transfer of the Mortgage Loans shall be treated as a sale on the books and
records of the Seller, and the Seller has determined that, and will treat,
the
disposition of the Mortgage Loans pursuant to this Agreement for tax and
accounting purposes as a sale. The Seller shall maintain a complete set of
books
and records for each Mortgage Loan which shall be clearly marked to reflect
the
ownership of each Mortgage Loan by the Purchaser;
(xiii) The
consideration received by the Seller upon the sale of the Mortgage Loans
constitutes fair consideration and reasonably equivalent value for such Mortgage
Loans;
(xiv) The
Seller is solvent and will not be rendered insolvent by the consummation
of the
transactions contemplated hereby. The Seller is not transferring any Mortgage
Loan with any intent to hinder, delay or defraud any of its
creditors;
(xv) The
information delivered by the Seller to the Purchaser with respect to the
Seller's loan loss, foreclosure and delinquency experience for the twelve
(12)
months immediately preceding the Initial Closing Date on mortgage loans
underwritten to the same standards as the Mortgage Loans and covering mortgaged
properties similar to the Mortgaged Properties, is true and correct in all
material respects;
(xvi) Neither
this Agreement nor any written statement, report or other document prepared
and
furnished or to be prepared and furnished by the Seller pursuant to this
Agreement or in connection with the transactions contemplated hereby contains
any untrue statement of material fact or omits to state a material fact
necessary to make the statements contained herein or therein not
misleading;
(xvii) The
Seller has not dealt with any broker, investment banker, agent or other person
that may be entitled to any commission or compensation in connection with
the
sale of the Mortgage Loans; and
(xviii) The
Seller will comply in all material respects with the rules and procedures
of
MERS in connection with the servicing of the Mortgage Loans that are registered
with MERS.
-19-
Subsection
7.02. Representations
and Warranties Regarding Individual Mortgage Loans.
The
Seller hereby represents and warrants to the Initial Purchaser and to any
subsequent Purchaser that, as to each Mortgage Loan, as of the related Closing
Date for such Mortgage Loan:
(i) The
information set forth in the related Mortgage Loan Schedule is complete, true
and correct;
(ii) The
Mortgage Loan is in compliance with all requirements set forth in the related
Confirmation, and the characteristics of the related Mortgage Loan Package
as
set forth in the related Confirmation are true and correct; provided, however,
that in the event of any conflict between the terms of any Confirmation and
this
Agreement, the terms of this Agreement shall control;
(iii) All
payments required to be made up to the close of business on the Closing Date
for
such Mortgage Loan under the terms of the Mortgage Note have been made; the
Seller has not advanced funds, or induced, solicited or knowingly received
any
advance of funds from a party other than the owner of the related Mortgaged
Property, directly or indirectly, for the payment of any amount required by
the
Mortgage Note or Mortgage; no Mortgage Loan is thirty (30) or more days
delinquent as of the Closing Date and there has been no delinquency, exclusive
of any period of grace, in any payment by the Mortgagor thereunder since the
origination of the Mortgage Loan;
(iv) There
are
no delinquent taxes, ground rents, water charges, sewer rents, assessments,
insurance premiums, leasehold payments, including assessments payable in future
installments or other outstanding charges affecting the related Mortgaged
Property;
(v) The
terms
of the Mortgage Note and the Mortgage have not been impaired, waived, altered
or
modified in any respect, except by written instruments, recorded in the
applicable public recording office if necessary to maintain the lien priority
of
the Mortgage, and which have been delivered to the Custodian; the substance
of
any such waiver, alteration or modification has been approved by the insurer
under the Primary Insurance Policy, if any, and has been approved by the title
insurer, to the extent required by the related policy, and is reflected on
the
related Mortgage Loan Schedule. No instrument of waiver, alteration or
modification has been executed, and no Mortgagor has been released, in whole
or
in part, except in connection with an assumption agreement approved by the
insurer under the Primary Insurance Policy, if any, and by the title insurer,
to
the extent required by the policy, and which assumption agreement has been
delivered to the Custodian and the terms of which are reflected in the related
Mortgage Loan Schedule;
(vi) The
Mortgage Note and the Mortgage are not subject to any right of rescission,
set-off, counterclaim or defense, including the defense of usury, nor will
the
operation of any of the terms of the Mortgage Note and the Mortgage, or the
exercise of any right thereunder, render the Mortgage unenforceable, in whole
or
in part, or subject to any right of rescission, set-off, counterclaim or
defense, including the defense of usury and no such right of rescission,
set-off, counterclaim or defense has been asserted with respect thereto. Each
Prepayment Charge or penalty with respect to any Mortgage Loan is permissible,
enforceable and collectible by the Purchaser under applicable law;
-21-
(vii) All
buildings upon the Mortgaged Property are insured by a Qualified Insurer against
loss by fire, hazards of extended coverage and such other hazards as are
customary in the area where the Mortgaged Property is located, pursuant to
insurance policies providing coverage in an amount not less than the greater
of
(i) the lesser of (A) 100% of the replacement cost of all improvements to the
Mortgaged Property or (B) either (x) the outstanding principal balance of the
Mortgage Loan with respect to each first lien Mortgage Loan or (y) with respect
to each second lien Mortgage Loan, the sum of the outstanding principal balance
of the related first lien mortgage loan and the outstanding principal balance
of
the second lien Mortgage Loan, or (ii) the amount necessary to avoid the
operation of any co-insurance provisions with respect to the Mortgaged Property,
and consistent with the amount that would have been required as of the date
of
origination in accordance with the Underwriting Guidelines. All such insurance
policies contain a standard mortgagee clause naming the Seller, its successors
and assigns as mortgagee and all premiums thereon have been paid. If the
Mortgaged Property is in an area identified on a Flood Hazard Map or Flood
Insurance Rate Map issued by the Federal Emergency Management Agency as having
special flood hazards (and such flood insurance has been made available) a
flood
insurance policy meeting the requirements of the current guidelines of the
Federal Insurance Administration is in effect which policy conforms to the
requirements of Xxxxxx Xxx and Xxxxxxx
Mac.
The
Mortgage obligates the Mortgagor thereunder to maintain all such insurance
at
the Mortgagor's cost and expense, and on the Mortgagor's failure to do so,
authorizes the holder of the Mortgage to maintain such insurance at Mortgagor's
cost and expense and to seek reimbursement therefor from the
Mortgagor;
(viii) 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, fair housing or disclosure laws applicable to each Mortgage Loan
at
origination and applicable, at origination, to any prepayment penalty associated
with the Mortgage Loans at origination, have been complied with;
(ix) The
Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole
or in part, and the Mortgaged Property has not been released from the lien
of
the Mortgage, in whole or in part, nor has any instrument been executed that
would effect any such satisfaction, cancellation, subordination, rescission
or
release;
(x) The
Mortgage (including any Negative Amortization which may arise thereunder) is
a
valid, existing and enforceable (A) first lien and first priority security
interest with respect to each Mortgage Loan which is indicated by the Seller
to
be a first lien (as reflected on the Mortgage Loan Schedule), or (B) second
lien
and second priority security interest with respect to each Mortgage Loan which
is indicated by the Seller to be a second lien (as reflected on the Mortgage
Loan Schedule), in either case, on the Mortgaged Property, including all
improvements on the Mortgaged Property subject only to (a) the lien of current
real property taxes and assessments not yet due and payable, (b) covenants,
conditions and restrictions, rights of way, easements and other matters of
the
public record as of the date of recording being acceptable to mortgage lending
institutions generally and specifically referred to in the lender's title
insurance policy delivered to the originator of the Mortgage Loan and which
do
not adversely affect the Appraised Value of the Mortgaged Property, (c) with
respect to each Mortgage Loan which is indicated by the Seller to be a second
lien Mortgage Loan (as reflected on the Mortgage Loan Schedule) a first lien
on
the Mortgaged Property; and (d) other matters to which like properties are
commonly subject which do not materially interfere with the benefits of the
security intended to be provided by the Mortgage or the use, enjoyment, value
or
marketability of the related Mortgaged Property. Any security agreement, chattel
mortgage or equivalent document related to and delivered in connection with
the
Mortgage Loan establishes and creates a valid, existing and enforceable first
or
second lien and first or second priority security interest (in each case, as
indicated on the Mortgage Loan Schedule) on the property described therein
and
the Seller has full right to sell and assign the same to the
Purchaser;
-22-
(xi) The
Mortgage Note and the related Mortgage are genuine and each is the legal, valid
and binding obligation of the maker thereof, enforceable in accordance with
its
terms;
(xii) All
parties to the Mortgage Note and the Mortgage had legal capacity to enter into
the Mortgage Loan and to execute and deliver the Mortgage Note and the Mortgage,
and the Mortgage Note and the Mortgage have been duly and properly executed
by
such parties. The Mortgagor is a natural person or a revocable inter vivos
trust
that is in compliance with Xxxxxx Mae’s requirements, or, if the Mortgaged
Property is located in Illinois, an Illinois land trust that is in compliance
with Xxxxxx Mae’s requirements. In the event that the Mortgagor is a revocable
inter vivos trust or an Illinois land trust, the Mortgage Loan is guaranteed
by
a natural person or a natural person is a co-borrower under the related Mortgage
Loan;
(xiii) The
proceeds of the Mortgage Loan have been fully disbursed to or for the account
of
the Mortgagor and there is no obligation for the Mortgagee to advance additional
funds thereunder and any and all requirements as to completion of any on-site
or
off-site improvement and as to disbursements of any escrow funds therefor have
been complied with. All costs, fees and expenses incurred in making or closing
the Mortgage Loan and the recording of the Mortgage have been paid, and the
Mortgagor is not entitled to any refund of any amounts paid or due to the
Mortgagee pursuant to the Mortgage Note or Mortgage;
(xiv) The
Seller is the sole legal, beneficial and equitable owner of the Mortgage Note
and the Mortgage and has full right to transfer and sell the Mortgage Loan
to
the Purchaser free and clear of any encumbrance, equity, lien, pledge, charge,
claim or security interest;
(xv) 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) in compliance with any and all applicable
“doing business” and licensing requirements of the laws of the state wherein the
Mortgaged Property is located to the extent such laws are applicable to such
parties;
(xvi) The
Mortgage Loan is covered by an American Land Title Association (“ALTA”) lender’s
title insurance policy (which, in the case of an Adjustable Rate Mortgage Loan
has an adjustable rate mortgage endorsement in the form of ALTA 6.0 or 6.1)
acceptable to Xxxxxx Xxx and Xxxxxxx
Mac,
issued
by a Qualified Insurer, insuring (subject to the exceptions contained in (x)(a)
and (b), and with respect to any second lien Mortgage Loan (c), above) the
Seller, its successors and assigns as to the first or second priority lien
(as
indicated on the Mortgage Loan Schedule) of the Mortgage in the original
principal amount of the Mortgage Loan (including, if the Mortgage Loan provides
for Negative Amortization, the maximum amount of Negative Amortization in
accordance with the Mortgage) and, with respect to any Adjustable Rate Mortgage
Loan, against any loss by reason of the invalidity or unenforceability of the
lien resulting from the provisions of the Mortgage providing for adjustment
in
the Mortgage Interest Rate and Monthly Payment and Negative Amortization
provisions of the Mortgage Note. Additionally, such lender's title insurance
policy affirmatively insures ingress and egress to and from the Mortgaged
Property, and against encroachments by or upon the Mortgaged Property or any
interest therein. The Seller is the sole insured of such lender's title
insurance policy, and such lender’s title insurance policy is in full force and
effect and will be in full force and effect upon the consummation of the
transactions contemplated by this Agreement. No claims have been made under
such
lender's title insurance policy, and no prior holder of the related Mortgage,
including the Seller, has done, by act or omission, anything which would impair
the coverage of such lender's title insurance policy;
-23-
(xvii) There
is
no default, breach, violation or event of acceleration existing under the
Mortgage or the Mortgage Note and no event which, with the passage of time
or
with notice and the expiration of any grace or cure period, would constitute
a
default, breach, violation or event of acceleration, and the Seller has not
waived any default, breach, violation or event of acceleration. With respect
to
each second lien Mortgage Loan (i) the first lien mortgage loan is in full
force
and effect, (ii) there is no default, breach, violation or event of acceleration
existing under such first lien mortgage or the related mortgage note, (iii)
no
event which, with the passage of time or with notice and the expiration of
any
grace or cure period, would constitute a default, breach, violation or event
of
acceleration thereunder, (iv) either (A) the first lien mortgage contains a
provision which allows or (B) applicable law requires, the mortgagee under
the
second lien Mortgage Loan to receive notice of, and affords such mortgagee
an
opportunity to cure any default by payment in full or otherwise under the first
lien mortgage, (v) the related first lien does not provide for or permit
negative amortization under such first lien Mortgage Loan, and (vi) either
no
consent for the Mortgage Loan is required by the holder of the first lien or
such consent has been obtained and is contained in the Mortgage
File;
(xviii) There
are
no mechanics' or similar liens or claims which have been filed for work, labor
or material (and no rights are outstanding that under law could give rise to
such lien) affecting the related Mortgaged Property which are or may be liens
prior to, or equal or coordinate with, the lien of the related
Mortgage;
(xix) All
improvements which were considered in determining the Appraised Value of the
related Mortgaged Property lay wholly within the boundaries and building
restriction lines of the Mortgaged Property, and no improvements on adjoining
properties encroach upon the Mortgaged Property;
(xx) The
Mortgage Loan was originated by the Seller or by a savings and loan association,
a savings bank, a commercial bank or similar banking institution which is
supervised and examined by a federal or state authority, or by a mortgagee
approved as such by the Secretary of HUD;
-24-
(xxi) Principal
payments on the Mortgage Loan commenced no more than sixty (60) days after
the
proceeds of the Mortgage Loan were disbursed. The Mortgage Loan bears interest
at the Mortgage Interest Rate. With respect to each Mortgage Loan which is
not a
Negative Amortization Loan, the Mortgage Note is payable on the first day of
each month in Monthly Payments, which, in the case of a Fixed Rate Mortgage
Loan, are sufficient to fully amortize the original principal balance over
the
original term thereof (other than with respect to a Mortgage Loan identified
on
the related Mortgage Loan Schedule as an interest-only Mortgage Loan during
the
interest-only period or a Mortgage Loan which is identified on the related
Mortgage Loan Schedule as a Balloon Mortgage Loan) and to pay interest at the
related Mortgage Interest Rate, and, in the case of an Adjustable Rate Mortgage
Loan, are changed on each Adjustment Date, and in any case, are sufficient
to
fully amortize the original principal balance over the original term thereof
(other than with respect to a Mortgage Loan identified on the related Mortgage
Loan Schedule as an interest-only Mortgage Loan during the interest-only period
or a Mortgage Loan which is identified on the related Mortgage Loan Schedule
as
a Balloon Mortgage Loan) and to pay interest at the related Mortgage Interest
Rate. With respect to each Negative Amortization Mortgage Loan, the related
Mortgage Note requires a Monthly Payment which is sufficient during the period
following each Payment Adjustment Date, to fully amortize the outstanding
principal balance as of the first day of such period (including any Negative
Amortization) over the then remaining term of such Mortgage Note and to pay
interest at the related Mortgage Interest Rate; provided, that the Monthly
Payment shall not increase to an amount that exceeds 107.5% of the amount of
the
Monthly Payment that was due immediately prior to the Payment Adjustment Date;
provided, further, that the payment adjustment cap shall not be applicable
with
respect to the adjustment made to the Monthly Payment that occurs in a year
in
which the Mortgage Loan has been outstanding for a multiple of five (5) years
and in any such year the Monthly Payment shall be adjusted to fully amortize
the
Mortgage Loan over the remaining term. With respect to each Mortgage Loan
identified on the Mortgage Loan Schedule as an interest-only Mortgage Loan,
the
interest-only period shall not exceed ten (10) years (or such other period
specified on the Mortgage Loan Schedule) and following the expiration of such
interest-only period, the remaining Monthly Payments shall be sufficient to
fully amortize the original principal balance over the remaining term of the
Mortgage Loan and to pay interest at the related Mortgage Interest Rate. With
respect to each Balloon Mortgage Loan, the Mortgage Note requires a monthly
payment which is sufficient to fully amortize the original principal balance
over the original term thereof and to pay interest at the related Mortgage
Interest Rate and requires a final Monthly Payment substantially greater than
the preceding monthly payment which is sufficient to repay the remaining unpaid
principal balance of the Balloon Mortgage Loan at the Due Date of such monthly
payment. The Index for each Adjustable Rate Mortgage Loan is as set forth on
the
Mortgage Loan Schedule. No Mortgage Loan is a Convertible Mortgage Loan. No
Balloon Mortgage Loan has an original stated maturity of less than seven (7)
years;
(xxii) The
origination, servicing and collection practices used with respect to each
Mortgage Note and Mortgage including, without limitation, the establishment,
maintenance and servicing of the Escrow Accounts and Escrow Payments, if any,
since origination, have been in all respects legal, proper, prudent and
customary in the mortgage origination and servicing industry. The Mortgage
Loan
has been serviced by the Seller and any predecessor servicer in accordance
with
the terms of the Mortgage Note and Accepted Servicing Practices. With respect
to
escrow deposits and Escrow Payments, if any, all such payments are in the
possession of, or under the control of, the Seller and there exist no
deficiencies in connection therewith for which customary arrangements for
repayment thereof have not been made. No escrow deposits or Escrow Payments
or
other charges or payments due the Seller have been capitalized under any
Mortgage or the related Mortgage Note and no such escrow deposits or Escrow
Payments are being held by the Seller for any work on a Mortgaged Property
which
has not been completed;
-25-
(xxiii) The
Mortgaged Property is free of damage and waste and there is no proceeding
pending for the total or partial condemnation thereof;
(xxiv) The
Mortgage and related Mortgage Note contain customary and enforceable provisions
such as to render the rights and remedies of the holder thereof adequate for
the
realization against the Mortgaged Property of the benefits of the security
provided thereby, including, (a) in the case of a Mortgage designated as a
deed
of trust, by trustee's sale, and (b) otherwise by judicial foreclosure. The
Mortgaged Property is not subject to any bankruptcy proceeding or foreclosure
proceeding and the Mortgagor has not filed for protection under applicable
bankruptcy laws in the two years preceding the origination of the Mortgage
Loan.
There is no homestead or other exemption available to the Mortgagor which would
interfere with the right to sell the Mortgaged Property at a trustee's sale
or
the right to foreclose the Mortgage. The Mortgagor has not notified the Seller
and the Seller has no knowledge of any relief requested or allowed to the
Mortgagor under the Servicemembers’ Civil Relief Act;
(xxv) The
Mortgage Loan was underwritten in accordance with the Underwriting Guidelines
in
effect at the time the Mortgage Loan was originated; and the Mortgage Note
and
Mortgage are on forms acceptable to Xxxxxx Xxx and Xxxxxxx
Mac;
(xxvi) The
Mortgage Note is not and has not been secured by any collateral except the
lien
of the corresponding Mortgage on the Mortgaged Property and the security
interest of any applicable security agreement or chattel mortgage referred
to in
(x) above;
(xxvii) Except
as
set forth on the Mortgage Loan Schedule, the Mortgage File contains an appraisal
of the related Mortgaged Property which satisfied the standards of Xxxxxx Mae
and Xxxxxxx
Mac,
was on
an appraisal form acceptable to Xxxxxx Mae and Xxxxxxx Mac and was made and
signed, prior to the approval of the Mortgage Loan application, by a qualified
appraiser, duly appointed by the Seller, who had no interest, direct or indirect
in the Mortgaged Property or in any loan made on the security thereof, whose
compensation is not affected by the approval or disapproval of the Mortgage
Loan
and who met the minimum qualifications of Xxxxxx Mae and Xxxxxxx
Mac.
Each
appraisal of the Mortgage Loan was made in accordance with the relevant
provisions of the Financial Institutions Reform, Recovery, and Enforcement
Act
of 1989;
(xxviii) 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;
-26-
(xxix) No
Mortgage Loan contains provisions pursuant to which Monthly Payments are (a)
paid or partially paid with funds deposited in any separate account established
by the Seller, the Mortgagor, or anyone on behalf of the Mortgagor, (b) paid
by
any source other than the Mortgagor or (c) contains any other similar provisions
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;
(xxx) The
Mortgagor has received all disclosure materials required by applicable law
with
respect to the making of fixed rate mortgage loans in the case of Fixed Rate
Mortgage Loans, and adjustable rate mortgage loans in the case of Adjustable
Rate Mortgage Loans and rescission materials with respect to Refinanced Mortgage
Loans, and such statement is and will remain in the Mortgage File;
(xxxi) No
Mortgage Loan was made in connection with (a) the construction or rehabilitation
of a Mortgaged Property or (b) facilitating the trade-in or exchange of a
Mortgaged Property;
(xxxii) The
Seller has no knowledge of any circumstances or condition with respect to the
Mortgage, the Mortgaged Property, the Mortgagor or the Mortgagor's credit
standing that can reasonably be expected to cause the Mortgage Loan to be an
unacceptable investment, cause the Mortgage Loan to become delinquent, or
adversely affect the value of the Mortgage Loan;
(xxxiii) No
Mortgage Loan had an LTV or a CLTV at origination in excess of 97%. Each
Mortgage Loan with an LTV at origination in excess of 80% is and will be subject
to a Primary Insurance Policy, issued by a Qualified Insurer, which insures
that
portion of the Mortgage Loan in excess of the portion of the Appraised Value
of
the Mortgaged Property as required by Xxxxxx Mae. With respect to any Mortgage
Loan which allows Negative Amortization, such Primary Insurance Policy contains
provisions to cover the potential Negative Amortization of such Mortgage Loan.
All provisions of such Primary Insurance Policy have been and are being complied
with, such policy is in full force and effect, and all premiums due thereunder
have been paid. Any Mortgage subject to any such Primary Insurance Policy
obligates the Mortgagor thereunder to maintain such insurance and to pay all
premiums and charges in connection therewith. The Mortgage Interest Rate for
the
Mortgage Loan does not include any such insurance premium. Except to the extent
specified on the Mortgage Loan Schedule, no Mortgage Loan is subject to a lender
paid primary mortgage insurance policy. The Mortgage Interest Rate specified
on
the Mortgage Loan Schedule is net of any LPMI Fee;
(xxxiv) The
Mortgaged Property is lawfully occupied under applicable law; all inspections,
licenses and certificates required to be made or issued with respect to all
occupied portions of the Mortgaged Property and, with respect to the use and
occupancy of the same, including but not limited to certificates of occupancy,
have been made or obtained from the appropriate authorities;
-27-
(xxxv) No
error,
omission, misrepresentation, negligence, fraud or similar occurrence with
respect to a Mortgage Loan has taken place on the part of any person, including
without limitation the Mortgagor, any appraiser, any builder or developer,
or
any other party involved in the origination of the Mortgage Loan or in the
application of any insurance in relation to such Mortgage Loan;
(xxxvi) The
Assignment of Mortgage is in recordable form, except for the name of the
assignee which is blank, and is acceptable for recording under the laws of
the
jurisdiction in which the Mortgaged Property is located;
(xxxvii) Any
principal advances made to the Mortgagor prior to the Cut-off Date have been
consolidated with the outstanding principal amount secured by the Mortgage,
and
the secured principal amount, as consolidated, bears a single interest rate
and
single repayment term. The lien of the Mortgage securing the consolidated
principal amount is expressly insured as having first or second (as indicated
on
the Mortgage Loan Schedule) lien priority by a title insurance policy, an
endorsement to the policy insuring the mortgagee's consolidated interest or
by
other title evidence acceptable to Xxxxxx Xxx or Xxxxxxx
Mac.
The
consolidated principal amount does not exceed the original principal amount
of
the Mortgage Loan plus any Negative Amortization;
(xxxviii) If
the
Residential Dwelling on the Mortgaged Property is a condominium unit or a unit
in a planned unit development (other than a de minimis planned unit development)
such condominium or planned unit development project meets the eligibility
requirements of Xxxxxx Mae and Xxxxxxx
Mac;
(xxxix)
[Reserved];
(xl) Interest
on
each
Mortgage Loan is calculated on the basis of a 360-day year consisting of twelve
30-day months;
(xli) The
Mortgaged Property is in material compliance with all applicable environmental
laws pertaining to environmental hazards including, without limitation,
asbestos, and neither the Seller nor, to the Seller’s knowledge, the related
Mortgagor, has received any notice of any violation or potential violation
of
such law;
(xlii) The
Seller shall, at its own expense, cause each Mortgage Loan to be covered by
a
Tax Service Contract which is assignable to the Purchaser or its
designee;
(xliii) Each
Mortgage Loan is covered by a Flood Zone Service Contract which is assignable
to
the Purchaser or its designee or, for each Mortgage Loan not covered by such
Flood Zone Service Contract, the Seller agrees to purchase such Flood Zone
Service Contract;
(xliv) No
Mortgage Loan is (a)(1) subject to the provisions of the Homeownership and
Equity Protection Act of 1994 as amended (“HOEPA”) or (2) has an APR or total
points and fees that are equal to or exceeds the HOEPA thresholds (as defined
in
12 CFR 226.32 (a)(1)(i) and (ii)), (b) a “high cost” mortgage loan, “covered”
mortgage loan, “high risk home” mortgage loan, or “predatory” mortgage loan or
any other comparable term, no matter how defined under any federal, state or
local law, (c) subject to any comparable federal, state or local statutes or
regulations, or any other statute or regulation providing for heightened
regulatory scrutiny or assignee liability to holders of such mortgage loans,
or
(d) a High Cost Loan or Covered Loan, as applicable (as such terms are defined
in the current Standard & Poor’s LEVELS® Glossary Revised, Appendix
E);
-28-
(xlv) No
predatory, abusive, or deceptive lending practices, including but not limited
to, the extension of credit to a Mortgagor without regard for the Mortgagor’s
ability to repay the Mortgage Loan and the extension of credit to a Mortgagor
which has no apparent benefit to the Mortgagor, were employed in connection
with
the origination of the Mortgage Loan. Each Mortgage Loan is in compliance with
the anti-predatory lending eligibility for purchase requirements of the Xxxxxx
Mae Guide;
(xlvi) The
debt-to-income ratio of the related Mortgagor was not greater than 60% at the
origination of the related Mortgage Loan;
(xlvii) No
Mortgagor was required to purchase any credit insurance product (e.g., life,
mortgage, disability, accident, unemployment or health insurance product) or
debt cancellation agreement as a condition of obtaining the extension of credit.
No Mortgagor obtained a prepaid single premium credit insurance policy (e.g.,
life, mortgage, disability, accident, unemployment or health insurance) or
debt
cancellation agreement in connection with the origination of the Mortgage Loan.
No proceeds from any Mortgage Loan were used to purchase single premium credit
insurance policies or debt cancellation agreements as part of the origination
of, or as a condition to closing, such Mortgage Loan;
(xlviii) The
Mortgage Loans were not selected from the outstanding one- to four-family
mortgage loans in the Seller’s portfolio as to which the representations and
warranties set forth in this Agreement could be made at the related Closing
Date
in a manner so as to affect adversely the interests of the
Purchaser;
(xlix) 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;
(l) [Reserved];
(li) The
information set forth in the Mortgage Loan Schedule as to Prepayment Charges
is
complete, true and correct in all material respects and each Prepayment Charge
is permissible, enforceable and collectable in accordance with its terms upon
the Mortgagor’s full and voluntary principal payment under applicable
law;
(lii) The
Mortgage Loan was not prepaid in full prior to the Closing Date;
(liii) No
Mortgage Loan is secured by cooperative housing, commercial property or mixed
use property;
(liv) As
of the
related Closing Date, each Mortgage Loan is eligible for sale in the secondary
market or for inclusion in a Securitization Transaction;
-29-
(lv) Except
as
set forth on the related Mortgage Loan Schedule, none of the Mortgage Loans
are
subject to a Prepayment Charge. For any Mortgage Loan originated prior to
October 1, 2002 that is subject to a Prepayment Charge, such Prepayment Charge
does not extend beyond five (5) years after the date of origination. For any
Mortgage Loan originated on or following October 1, 2002 that is subject to
a
Prepayment Charge, such Prepayment Charge does not extend beyond three (3)
years
after the date of origination. 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 Mortgage Loan's origination, the Mortgagor agreed
to
such premium in exchange for a monetary benefit, including but not limited
to a
rate or fee reduction, (ii) if required by law, prior to the Mortgage Loan's
origination, 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 Mortgagor in the loan documents pursuant to applicable law,
and
(iv) notwithstanding any state or federal law to the contrary, the Seller shall
not impose such Prepayment Charge in any instance when the mortgage debt is
accelerated as the result of the Mortgagor's default in making the loan
payments;
(lvi) The
Seller has complied with all applicable anti-money laundering laws and
regulations, including without limitation the USA Patriot Act of 2001
(collectively, the “Anti-Money Laundering Laws”); the Seller has established an
anti-money laundering compliance program as required by the Anti-Money
Laundering Laws, has conducted the requisite due diligence in connection with
the origination of each Mortgage Loan for purposes of the Anti-Money Laundering
Laws, including with respect to the legitimacy of the applicable Mortgagor
and
the origin of the assets used by the said Mortgagor to purchase the Mortgaged
Property, and maintains, and will maintain, sufficient information to identify
the applicable Mortgagor for purposes of the Anti-Money Laundering Laws. No
Mortgage Loan is subject to nullification pursuant to Executive Order 13224
(the
“Executive Order”) or the regulations promulgated by the Office of Foreign
Assets Control of the United States Department of the Treasury (the “OFAC
Regulations”) or in violation of the Executive Order or the OFAC Regulations,
and no Mortgagor is subject to the provisions of such Executive Order or the
OFAC Regulations nor listed as a “blocked person” for purposes of the OFAC
Regulations;
(lvii) 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. With
respect to any Mortgage Loan, the Mortgagor was assigned the highest credit
grade available with respect to a mortgage loan product offered by such Mortgage
Loan’s originator, based on a comprehensive assessment of risk factors,
including the Mortgagor’s credit history;
(lviii) 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;
-30-
(lix) With
respect to each Mortgage Loan, the Seller has fully and accurately furnished
complete information (i.e., favorable and unfavorable) on the related borrower
credit files to Equifax, Experian and Trans Union Credit Information Company,
in
accordance with the Fair Credit Reporting Act and its implementing regulations,
on a monthly basis and, for each Mortgage Loan, the Seller will furnish, in
accordance with the Fair Credit Reporting Act and its implementing regulations,
accurate and complete information on its borrower credit files to Equifax,
Experian, and Trans Union Credit Information Company, on a monthly
basis;
(lx) All
points and fees related to each Mortgage Loan were disclosed in writing to
the
related Borrower in accordance with applicable state and federal laws and
regulations. No related Borrower was charged “points and fees” (whether or not
financed) in an amount greater than (a) $1,000 or (b) 5% of the principal amount
of such loan, whichever is greater, such 5% limitation is calculated in
accordance with Xxxxxx Mae’s anti-predatory lending requirements as set forth in
the Xxxxxx Mae Guide. For purposes of this representation, “points and fees” (a)
include origination, underwriting, broker and finder’s fees and other charges
that the lender imposed as a condition of making the loan, whether they are
paid
to the lender or a third party, and (b) exclude bona fide discount points,
fees
paid for actual services rendered in connection with the origination of the
mortgage (such as attorneys’ fees, notaries fees and fees paid for property
appraisals, credit reports, surveys, title examinations and extracts, flood
and
tax certifications, and home inspections); the cost of mortgage insurance or
credit-risk price adjustments; the costs of title, hazard, and flood insurance
policies; state and local transfer taxes or fees; escrow deposits for the future
payment of taxes and insurance premiums; and other miscellaneous fees and
charges that, in total, do not exceed 0.25 percent of the loan amount. All
points, fees and charges (including finance charges) and whether or not
financed, assessed, collected or to be collected in connection with the
origination and servicing of each Mortgage Loan were disclosed in writing to
the
related Mortgagor in accordance with applicable state and federal laws and
regulations;
(lxi) The
Seller will transmit full-file credit reporting data for each Mortgage Loan
pursuant to Xxxxxx Xxx Guide Announcement 95-19 and for each Mortgage Loan,
Seller agrees it shall report one of the following statuses each month as
follows: new origination, current, delinquent (30-, 60-, 90-days, etc.),
foreclosed, or charged-off;
(lxii) With
respect to any Mortgage Loan which is secured by manufactured housing, if such
Mortgage Loans are permitted hereunder, such Mortgage Loan satisfies the
requirements for inclusion in residential mortgage backed securities
transactions rated by S&P and such manufactured housing is the principal
residence of the Mortgagor at the time of the origination of the Mortgage
Loan;
(lxiii) Each
Mortgage Loan constitutes a “qualified mortgage” under
Section 860G(a)(3)(A) of the Code and Treasury Regulation
Section 1.860G-2(a)(1);
-31-
(lxiv) No
Mortgage Loan is secured by real property or secured by a manufactured home
located in the state of Georgia unless (x) such Mortgage Loan was originated
prior to October 1, 2002 or after March 6, 2003, or (y) the property securing
the Mortgage Loan is not, nor will be, occupied by the Mortgagor as the
Mortgagor’s principal dwelling. No Mortgage Loan is a “High Cost Home Loan” as
defined in the Georgia Fair Lending Act, as amended (the “Georgia Act”). Each
Mortgage Loan that is a “Home Loan” under the Georgia Act complies with all
applicable provisions of the Georgia Act. No Mortgage Loan secured by owner
occupied real property or an owner occupied manufactured home located in the
State of Georgia was originated (or modified) on or after October 1, 2002
through and including March 6, 2003;
(lxv) No
Mortgage Loan is a “High-Cost” loan as defined under the New York Banking Law
Section 6-1, effective as of April 1, 2003;
(lxvi) No
Mortgage Loan (a) is secured by property located in the State of New York;
(b)
had an unpaid principal balance at origination of $300,000 or less, and (c)
has
an application date on or after April 1, 2003, the terms of which Mortgage
Loan
equal or exceed either the APR or the points and fees threshold for “high-cost
home loans”, as defined in Section 6-1 of the New York State Banking
Law;
(lxvii) No
Mortgage Loan is a “High Cost Home Loan” as defined in the Arkansas Home Loan
Protection Act effective July 16, 2003 (Act 1340 or 2003);
(lxviii) No
Mortgage Loan is a “High Cost Home Loan” as defined in the Kentucky high-cost
loan statute effective June 24, 2003 (Ky. Rev. Stat.
Section 360.100);
(lxix) No
Mortgage Loan secured by property located in the State of Nevada is a “home
loan” as defined in the Nevada Assembly Xxxx No. 284;
(lxx) No
Mortgage Loan is a “manufactured housing loan” or “home improvement home loan”
pursuant to the New Jersey Home Ownership Act. No Mortgage Loan is a “High-Cost
Home Loan” or a refinanced “Covered Home Loan,” in each case, as defined in the
New Jersey Home Ownership Act effective November 27, 2003 (N.J.S.A. 46;10B-22
et
seq.);
(lxxi) No
Mortgage Loan is a subsection 10 mortgage under the Oklahoma Home Ownership
and
Equity protection Act;
(lxxii) No
Mortgage Loan is a “High-Cost Home Loan” as defined in the New Mexico Home Loan
Protection Act effective January 1, 2004 (N.M. Stat. Xxx. §§ 58-21A-1 et
seq.);
(lxxiii) No
Mortgage Loan is a “High-Risk Home Loan” as defined in the Illinois High-Risk
Home Loan Act effective January 1, 2004 (815 Ill. Comp. Stat. 137/1 et
seq.);
(lxxiv) No
Loan
that is secured by property located within the State of Maine meets the
definition of a (i) “high-rate, high-fee” mortgage loan under Article VIII,
Title 9-A of the Maine Consumer Credit Code or (ii) “High-Cost Home Loan” as
defined under the Maine House Xxxx 383 X.X. 494, effective as of September
13,
2003;
-32-
(lxxv) With
respect to any Loan for which a mortgage loan application was submitted by
the
Mortgagor after April 1, 2004, no such Loan secured by Mortgaged Property in
the
State of Illinois which has a Loan Interest Rate in excess of 8.0% per annum
has
lender-imposed fees (or other charges) in excess of 3.0% of the original
principal balance of the Loan;
(lxxvi) No
Mortgage Loan is a “High Cost Home Mortgage Loan” as defined in the
Massachusetts Predatory Home Loan Practices Act, effective November 7, 2004
(Mass. Xxx. Laws Ch. 183C). No Mortgage Loan secured by a Mortgaged Property
located in the Commonwealth of Massachusetts was made to pay off or refinance
an
existing loan or other debt of the related borrower (as the term “borrower” is
defined in the regulations promulgated by the Massachusetts Secretary of State
in connection with Massachusetts House Xxxx 4880 (2004)) unless either (1)
(a)
the related Mortgage Interest Rate (that would be effective once the
introductory rate expires, with respect to Adjustable Rate Mortgage Loans)
did
or would not exceed by more than 2.25% the yield on United States Treasury
securities having comparable periods of maturity to the maturity of the related
Mortgage Loan as of the fifteenth day of the month immediately preceding the
month in which the application for the extension of credit was received by
the
related lender or (b) the Mortgage Loan is an “open-end home loan” (as such term
is used in the Massachusetts House Xxxx 4880 (2004)) and the related Mortgage
Note provides that the related Mortgage Interest Rate may not exceed at any
time
the Prime rate index as published in The Wall Street Journal plus a margin
of
one percent, or (2) such Mortgage Loan is in the "borrower's interest," as
documented by a "borrower's interest worksheet" for the particular Mortgage
Loan, which worksheet incorporates the factors set forth in Massachusetts House
Xxxx 4880 (2004) and the regulations promulgated thereunder for determining
"borrower's interest," and otherwise complies in all material respects with
the
laws of the Commonwealth of Massachusetts;
(lxxvii) No
Loan
is a “High Cost Home Loan” as defined by the Indiana Home Loan Practices Act,
effective January 1, 2005 (Ind. Code Xxx. §§ 24-9-1 et seq.);
(lxxviii) The
Mortgagor has not made or caused to be made any payment in the nature of an
“average” or “yield spread premium” to a mortgage broker or a like Person which
has not been fully disclosed to the Mortgagor;
(lxxix) The
sale
or transfer of the Mortgage Loan by the Seller complies with all applicable
federal, state, and local laws, rules, and regulations governing such sale
or
transfer, including, without limitation, the Fair and Accurate Credit
Transactions Act (“FACT Act”) and the Fair Credit Reporting Act, each as may be
amended from time to time, and the Seller has not received any actual or
constructive notice of any identity theft, fraud, or other misrepresentation
in
connection with such Mortgage Loan or any party thereto;
(lxxx) With
respect to each MOM Loan, a MIN has been assigned by MERS and such MIN is
accurately provided on the Mortgage Loan Schedule. The related Assignment of
Mortgage to MERS has been duly and properly recorded, or has been delivered
for
recording to the applicable recording office;
-33-
(lxxxi) With
respect to each MOM Loan, Seller has not received any notice of liens or legal
actions with respect to such Mortgage Loan and no such notices have been
electronically posted by MERS;
(lxxxii) With
respect to each second lien Mortgage Loan, either no consent for the Mortgage
Loan is required by the holder of the first lien or such consent has been
obtained and is contained in the Mortgage File; and
(lxxxiii) 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 any mandatory arbitration.
Subsection
7.03. Remedies
for Breach of Representations and Warranties.
It
is
understood and agreed that the representations and warranties set forth in
Subsections 7.01 and 7.02 shall survive the sale of the Mortgage Loans to the
Purchaser and shall inure to the benefit of the Purchaser, notwithstanding
any
restrictive or qualified endorsement on any Mortgage Note or Assignment of
Mortgage or the examination or lack of examination of any Mortgage File. Upon
discovery by the Seller of a breach of any of the foregoing representations
and
warranties which materially and adversely affects the value of the Mortgage
Loans or the interest of the Purchaser (or which materially and adversely
affects the 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), or in the event that any Mortgagor fails to make
the
first payment due to the Purchaser following the Closing Date, the Seller shall
give prompt written notice to the Purchaser.
Within
60
days of the earlier of either discovery by the Seller, or notice to the Seller,
of any breach of a representation or warranty which materially and adversely
affects the value of a Mortgage Loan or the Mortgage Loans or the Purchaser’s
interest in a Mortgage Loan or the Mortgage Loans, the Seller shall use its
best
efforts promptly to cure such breach in all material respects and, if such
breach cannot be cured, the Seller shall, at the Purchaser’s option, repurchase
such Mortgage Loan at the Repurchase Price. In the event that a breach shall
involve any representation or warranty set forth in Subsection 7.01 and
such breach cannot be cured within 60 days of the earlier of either discovery
by
or notice to the Seller of such breach, all of the Mortgage Loans shall, at
the
Purchaser’s option, be repurchased by the Seller at the Repurchase Price. The
Seller shall, at the request of the Purchaser and assuming that Seller has
a
Qualified Substitute Mortgage Loan, rather than repurchase the Mortgage Loan
as
provided above, remove such Mortgage Loan and substitute in its place a
Qualified Substitute Mortgage Loan or Loans; provided that such substitution
shall be effected not later than 120 days after the related Closing Date. If
the
Seller has no Qualified Substitute Mortgage Loan, it shall repurchase the
deficient Mortgage Loan. Any repurchase of a Mortgage Loan(s) pursuant to the
foregoing provisions of this Subsection 7.03 shall occur on a date
designated by the Purchaser and shall be accomplished by deposit in the
Custodial Account of the amount of the Repurchase Price for distribution to
the
Purchaser on the next scheduled Distribution Date. [Notwithstanding anything
to
the contrary contained herein, it is understood by the parties hereto that
a
breach of the representations and warranties made in Subsections 7.02(viii),
(xliv), (xlvii), (lv), (lvii), (lviii), (lix), (lx), (lxii), (lxiii), (lxiv)
or
(lxxxiii) will be deemed to materially and adversely affect the value of the
related Mortgage Loan or the interest of the Purchaser therein.]
-34-
At
the
time of repurchase of any deficient Mortgage Loan, the Purchaser and the Seller
shall arrange for the reassignment of the repurchased Mortgage Loan to the
Seller and the delivery to the Seller of any documents held by the Custodian
relating to the repurchased Mortgage Loan. In the event the Repurchase Price
is
deposited in the Custodial Account, the Seller shall, simultaneously with such
deposit, give written notice to the Purchaser that such deposit has taken place.
Upon such repurchase the related Mortgage Loan Schedule shall be amended to
reflect the withdrawal of the repurchased Mortgage Loan from this
Agreement.
As
to any
Deleted Mortgage Loan for which the Seller substitutes a Qualified Substitute
Mortgage Loan or Loans, the Seller shall effect such substitution by delivering
to the Purchaser for such Qualified Substitute Mortgage Loan or Loans the
Mortgage Note, the Mortgage, the Assignment of Mortgage and such other documents
and agreements as are required by the Custodial Agreement, with the Mortgage
Note endorsed as required therein. The Seller shall deposit in the Custodial
Account the Monthly Payment less the Servicing Fee due on such Qualified
Substitute Mortgage Loan or Loans in the month following the date of such
substitution. Monthly Payments due with respect to Qualified Substitute Mortgage
Loans in the month of substitution will be retained by the Seller. For the
month
of substitution, distributions to the Purchaser will include the Monthly Payment
due on such Deleted Mortgage Loan in the month of substitution, and the Seller
shall thereafter be entitled to retain all amounts subsequently received by
the
Seller in respect of such Deleted Mortgage Loan. The Seller shall give written
notice to the Purchaser that such substitution has taken place and shall amend
the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage
Loan
from the terms of this Agreement and the substitution of the Qualified
Substitute Mortgage Loan. Upon such substitution, such Qualified Substitute
Mortgage Loan or Loans shall be subject to the terms of this Agreement in all
respects, and the Seller shall be deemed to have made with respect to such
Qualified Substitute Mortgage Loan or Loans, as of the date of substitution,
the
covenants, representations and warranties set forth in Subsections 7.01 and
7.02.
For
any
month in which the Seller substitutes one or more Qualified Substitute Mortgage
Loans for one or more Deleted Mortgage Loans, the Seller will determine the
amount (if any) by which the aggregate principal balance of all such Qualified
Substitute Mortgage Loans as of the date of substitution is less than the
aggregate Stated Principal Balance of all such Deleted Mortgage Loans (after
application of scheduled principal payments due in the month of substitution).
An amount equal to the product of the amount of such shortfall multiplied by
the
greater of 100% or the Purchase Price percentage specified in the related
Confirmation shall be distributed by the Seller in the month of substitution
pursuant to the Servicing Addendum. Accordingly, on the date of such
substitution, the Seller will deposit from its own funds into the Custodial
Account an amount equal to such amount.
In
addition to such cure, repurchase and substitution obligation, the Seller shall
indemnify the Initial Purchaser and any subsequent Purchaser and hold them
harmless against any losses, damages, penalties, fines, forfeitures, reasonable
and necessary legal fees and related costs, judgments, and other costs and
expenses resulting from any claim, demand, defense or assertion based on or
grounded upon, or resulting from, a breach of the Seller's representations
and
warranties contained in this Section 7. It is understood and agreed that
the obligations of the Seller set forth in this Subsection 7.03 to cure or
repurchase a defective Mortgage Loan and to indemnify the Initial Purchaser
and
any subsequent Purchaser as provided in this Subsection 7.03 constitute the
sole remedies of the Initial Purchaser and any subsequent Purchaser respecting
a
breach of the foregoing representations and warranties.
-35-
Any
cause
of action against the Seller relating to or arising out of the breach of any
representations and warranties made in Subsections 7.01 or 7.02 shall accrue
as
to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or
notice thereof by the Seller to the Purchaser and (ii) demand upon the Seller
by
the Purchaser for compliance with the relevant provisions of this
Agreement.
In
addition to the foregoing, in the event that a breach of any representation
of
the Seller materially and adversely affects the interests of the Purchaser
in any Prepayment Charge or the collectability of such Prepayment Charge, the
Seller shall pay the amount of the scheduled Prepayment Charge to the Purchaser
upon the payoff of any related Mortgage Loan.
Subsection
7.04. Repurchase
of Certain Mortgage Loans; Premium Protection.
(a) In
the
event that (i) the first Due Date for a Mortgage Loan is prior to the Cut-off
Date and the initial Monthly Payment is not made by the related Mortgagor within
thirty (30) days of such Due Date or (ii) the first Monthly Payment on any
Mortgage Loan due following the Cut-off Date is not made by the related
Mortgagor within thirty (30) days of the related Due Date, then, in each such
case, the Seller shall repurchase the affected Mortgage Loans at the Repurchase
Price, which shall be paid as provided for in Subsection 7.03. The Seller
shall notify the Purchaser of any such default under this Subsection 7.04(a)
within thirty (30) days of any such Mortgage Loan becoming thirty (30) days
delinquent.
(b) In
the
event that any Mortgage Loan prepays-in-full within three (3) months following
the related Closing Date, Seller shall remit to the Initial Purchaser an amount
equal to the product of (i) the excess of (A) the percentage of par as stated
in
the related Confirmation as the purchase price percentage (subject to adjustment
as provided therein) over (B) 100%, times (ii) the outstanding principal balance
of such Mortgage Loan as of the Cut-off Date. Any such amount payable pursuant
to the preceding sentence shall be reduced, but not below zero dollars, by
the
amount of any Prepayment Charges collected by the Initial Purchaser with respect
to such Mortgage Loan. Such obligation to the Initial Purchaser shall survive
any sale or assignment of the Mortgage Loans by the Initial Purchaser to any
third party and shall be independently enforceable by the Initial
Purchaser.
(c) In
the
event that any Mortgage Loan is repurchased pursuant to Section 7.03 or 7.04(a),
in addition to its obligations under Section 7.03 and 7.04(a), Seller shall
remit to the Initial Purchaser an amount equal to the product of (i) the excess
of (A) the percentage of par as stated in the related Confirmation as the
purchase price percentage (subject to adjustment as provided therein) over
(B)
100%, times (ii) the outstanding principal balance of such Mortgage Loan as
of
the date of repurchase. Such obligation to the Initial Purchaser shall survive
any sale or assignment of the Mortgage Loans by the Initial Purchaser to any
third party and shall be independently enforceable by the Initial
Purchaser.
-36-
SECTION
8. Closing.
The
closing for each Mortgage Loan Package shall take place on the related Closing
Date. At the Initial Purchaser's option, the closing shall be either: by
telephone, confirmed by letter or wire as the parties shall agree, or conducted
in person, at such place as the parties shall agree.
The
closing for the Mortgage Loans to be purchased on each Closing Date shall be
subject to each of the following conditions:
|
(a)
|
all
of the representations and warranties of the Seller under this Agreement
shall be true and correct as of the related Closing Date and no event
shall have occurred which, with notice or the passage of time, would
constitute a default under this
Agreement;
|
|
(b)
|
the
Initial Purchaser shall have received, or the Initial Purchaser's
attorneys shall have received in escrow, all Closing Documents as
specified in Section 9, in such forms as are agreed upon and
acceptable to the Initial Purchaser, duly executed by all signatories
other than the Initial Purchaser as required pursuant to the terms
hereof;
|
|
(c)
|
the
Seller shall have delivered and released to the Custodian the Mortgage
Loan Documents; and
|
|
(d)
|
all
other terms and conditions of this Agreement shall have been complied
with.
|
Subject
to the foregoing conditions, the Initial Purchaser shall pay to the Seller
on
the related Closing Date the Purchase Price, plus accrued interest pursuant
to
Section 4, by wire transfer of immediately available funds to the account
designated by the Seller.
SECTION
9. Closing
Documents.
|
(a)
|
On
or before the Initial Closing Date, the Seller shall submit to the
Initial
Purchaser fully executed originals of the following
documents:
|
|
1.
|
this
Agreement, in four counterparts;
|
|
2.
|
the
Custodial Agreement, in six
counterparts;
|
|
3.
|
a
Custodial Account Letter Agreement in the form attached as Exhibit
7
hereto;
|
|
4.
|
as
Escrow Account Letter Agreement in the form attached as Exhibit
8
hereto;
|
-37-
|
5.
|
an
Officer's Certificate, in the form of Exhibit
1
hereto, including all attachments
thereto;
|
|
6.
|
an
Opinion of Counsel to the Seller, in the form of Exhibit
2
hereto; and
|
|
7.
|
the
Seller's Underwriting Guidelines.
|
|
(b)
|
The
Closing Documents for the Mortgage Loans to be purchased on each
Closing
Date shall consist of fully executed originals of the following
documents:
|
|
1.
|
the
related Confirmation;
|
|
2.
|
the
related Mortgage Loan Schedule, one copy to be attached hereto and
one
copy to be attached to the Custodian's counterpart of the Custodial
Agreement, as the Mortgage Loan Schedule
thereto;
|
|
3.
|
a
Custodian's Trust Receipt and Initial Certification, as required
under the
Custodial Agreement, in a form acceptable to the Initial
Purchaser;
|
|
4.
|
an
Officer's Certificate, in the form of Exhibit
1
hereto, including all attachments
thereto;
|
|
5.
|
if
requested by the Initial Purchaser, an Opinion of Counsel to the
Seller,
in the form of Exhibit
2
hereto;
|
|
6.
|
a
Security Release Certification, in the form of Exhibit
3
hereto executed by any Person, as requested by the Initial Purchaser,
if
any of the Mortgage Loans has at any time been subject to any security
interest, pledge or hypothecation for the benefit of such
Person;
|
|
7.
|
a
certificate or other evidence of merger or change of name, signed
or
stamped by the applicable regulatory authority, if any of the Mortgage
Loans were acquired by the Seller by merger or acquired or originated
by
the Seller while conducting business under a name other than its
present
name, if applicable;
|
|
8.
|
an
Assignment and Conveyance in the form of Exhibit
4
hereto; and
|
|
9.
|
in
the event that the Seller’s Underwriting Guidelines have been modified
following delivery to the Initial Purchaser, an updated copy of such
Underwriting Guidelines.
|
SECTION
10. Costs.
The
Purchaser shall pay any commissions due its salesmen, the fees of the Custodian
and the legal fees and expenses of its attorneys. All other costs and expenses
incurred in connection with the transfer and delivery of the Mortgage Loans,
including without limitation recording fees, fees for title policy endorsements
and continuations, fees for recording Assignments of Mortgage and the Seller's
attorney's fees, shall be paid by the Seller.
-38-
SECTION
11. Seller's
Servicing Obligations.
The
Seller, as independent contract servicer, shall service and administer the
Mortgage Loans during the Preliminary Servicing Period,
directly or through one or more Subservicers,
in
accordance with the terms and provisions set forth in the Servicing Addendum
attached as Exhibit 9, which Servicing Addendum is incorporated herein by
reference.
SECTION
12. Removal
of Mortgage Loans from Inclusion under This Agreement Upon a Whole Loan Transfer
or a Securitization Transaction on One or More Reconstitution
Dates.
The
Seller and the Purchaser agree that with respect to some or all of the Mortgage
Loans, the Purchaser may effect either:
(1) no
more
than three (3) Whole Loan Transfers for each Mortgage Loan Package;
and/or
(2) no
more
than three (3) Securitization Transactions for each Mortgage Loan
Package.
With
respect to each Whole Loan Transfer or Securitization Transaction, as the case
may be, entered into by the Purchaser, the Seller agrees:
|
(1)
|
to
cooperate fully with the Purchaser and any prospective purchaser
with
respect to all reasonable requests and due diligence procedures including
participating in meetings with rating agencies, bond insurers 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 reasonably requested by such
purchasers;
|
|
(2)
|
to
execute all Reconstitution Agreements, which may include, without
limitation, an Assignment and Recognition Agreement in substantially
the
form attached hereto as Exhibit 10 and an Indemnification Agreement
in
substantially the form attached hereto as Exhibit 11, provided that
each
of the Seller and the Purchaser is given an opportunity to review
and
reasonably negotiate in good faith the content of such other documents
not
specifically referenced or provided for
herein;
|
|
(3)
|
with
respect to any Whole Loan Transfer or Securitization
Transaction,
or
any transfer of servicing with respect to any Mortgage Loans, the
Seller shall make the representations and warranties regarding the
Seller
and the Mortgage Loans set forth herein and such additional
representations and warranties as are reasonably requested to effect
such
Whole Loan Transfer, Securitization Transaction
or
servicing transfer,
as of the date of the Whole Loan Transfer, Securitization
Transaction
or
servicing transfer,
modified to the extent necessary to accurately reflect the pool statistics
of the Mortgage Loans as of the date of such Whole Loan Transfer,
Securitization Transaction
or
servicing transfer
and any events or circumstances existing subsequent to the related
Closing
Date(s);
|
-39-
|
(4)
|
to
deliver to the Purchaser for inclusion in any prospectus or other
offering
material such publicly available information regarding the Seller’s
underwriting standards, the Seller, its financial condition and its
mortgage loan delinquency, foreclosure and loss experience and any
additional information requested by the Purchaser including, without
limitation, information on the Mortgage Loans and the Seller’s
underwriting standards, and to deliver to the Purchaser any similar
non
public, unaudited financial information with respect to the Mortgage
Loans, in which case the Purchaser shall bear the cost of having
such
information audited by certified public accountants if the Purchaser
desires such an audit, or as is otherwise reasonably requested by
the
Purchaser and which the Seller is capable of providing without
unreasonable effort or expense, and to indemnify the Purchaser and
its
affiliates for material misstatements or omissions or any alleged
misstatements or omissions contained in such
information;
|
|
(5)
|
to
deliver to the Purchaser and to any Person designated by the Purchaser,
at
the Purchaser’s expense, such statements and audit letters of reputable,
certified public accountants pertaining to information provided by
the
Seller pursuant to clause 4 above as shall be reasonably requested
by the
Purchaser;
|
|
(6)
|
to
deliver to the Purchaser, and to any Person designated by the Purchaser,
such legal documents and in-house Opinions of Counsel as are customarily
delivered by originators or servicers, as the case may be, and reasonably
determined by the Purchaser to be necessary in connection with Whole
Loan
Transfers or Securitization Transactions, as the case may be, such
in-house Opinions of Counsel for a Securitization Transaction to
be in the
form reasonably acceptable to the Purchaser, it being understood
that the
cost of any opinions of outside special counsel that may be required
for a
Whole Loan Transfer or Securitization Transaction, as the case may
be,
shall be the responsibility of the
Purchaser;
|
|
(7)
|
to
negotiate and execute one or more subservicing agreements between
the
Seller and any master servicer designated by the Purchaser in its
sole
discretion after consultation with the Seller and/or one or more
custodial
and servicing agreements among the Purchaser, the Seller and a third
party
custodian/trustee 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;
|
-40-
|
(8)
|
in
connection with any securitization of any Mortgage Loans, to execute
a
pooling and servicing agreement, which pooling and servicing agreement
may, at the Purchaser’s direction, contain contractual provisions
including, but not limited to, a 24-day certificate payment delay
(54-day
total payment delay), servicer advances of delinquent scheduled payments
of principal and interest through liquidation (unless deemed
non-recoverable) and prepayment interest shortfalls (to the extent
of the
monthly servicing fee payable thereto), servicing and mortgage loan
representations and warranties which in form and substance conform
to the
representations and warranties in this Agreement and to secondary
market
standards for securities backed by mortgage loans similar to the
Mortgage
Loans and such provisions with regard to servicing responsibilities,
investor reporting, segregation and deposit of principal and interest
payments, custody of the Mortgage Loans, and other covenants as are
required by the Purchaser and one or more nationally recognized rating
agencies for “AAA” rated mortgage pass-through transactions which are
“mortgage related securities” for the purposes of the Secondary Mortgage
Market Enhancement Act of 1984, unless otherwise mutually agreed.
At the
option of the Purchaser, the facilities of the Depository Trust Company
(“DTC”) may be used in connection with any class of security issued
pursuant to any pooling agreement, subject only to the consent of
the DTC.
In addition, at the sole option of the Purchaser, any REMIC residual
class
issued pursuant to any pooling agreement may be transferred to the
Seller.
If the Purchaser deems it advisable at any time to pool the Mortgage
Loans
with other mortgage loans for the purpose of resale or securitization,
the
Seller agrees to execute one or more subservicing agreements between
itself (as servicer) and a master servicer designated by the Purchaser
at
its sole discretion, and/or one or more servicing agreements among
the
Seller (as servicer), the Purchaser and a trustee designated by the
Purchaser at its sole discretion, such agreements in each case
incorporating terms and provisions substantially identical to those
described in the immediately preceding paragraph;
and
|
|
(9)
|
to
transfer the servicing rights to the Purchaser or its designee as
described in Section 16 upon the direction of the
Purchaser.
|
SECTION
13. COMPLIANCE
WITH REGULATION AB
Subsection
13.01. Intent
of the Parties; Reasonableness.
The
Purchaser and the Seller acknowledge and agree that the purpose of Section
13 of
this Agreement is to facilitate compliance by the Purchaser and any Depositor
with the provisions of Regulation AB and related rules and regulations of the
Commission. 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. The Seller acknowledges that interpretations of the requirements
of
Regulation AB may change over time, whether due to interpretive guidance
provided by the Commission or its staff, consensus among participants in the
asset-backed securities markets, advice of counsel, or otherwise, and agrees
to
comply with reasonable requests made by the Purchaser, any Master Servicer
or
any Depositor in good faith for delivery of information under these provisions
on the basis of evolving interpretations of Regulation AB. In connection with
any Securitization Transaction, the Seller shall cooperate fully with the
Purchaser and the Master Servicer to deliver to the Purchaser and the Master
Servicer (including any of their assignees or designees) and any Depositor,
any
and all statements, reports, certifications, records and any other information
reasonably believed to be necessary in the good faith determination of the
Purchaser, the Master Servicer or any Depositor to permit the Purchaser, the
Master Servicer or such Depositor to comply with the provisions of Regulation
AB, together with such disclosures relating to the Seller, any Subservicer,
any
Third-Party Originator and the Mortgage Loans, or the servicing of the Mortgage
Loans, reasonably believed by the Purchaser or any Depositor to be necessary
in
order to effect such compliance.
-41-
The
Purchaser (including any of its assignees or designees) shall cooperate with
the
Seller by providing timely notice of requests for information under these
provisions and by reasonably limiting such requests to information required,
in
the Purchaser’s reasonable judgment, to comply with Regulation AB.
Subsection
13.02. Additional
Representations and Warranties of the Seller.
(i) The
Seller shall be deemed to represent to the Purchaser, to any Master Servicer
and
to any Depositor, as of the date on which information is first provided to
the
Purchaser, any Master Servicer or any Depositor under Subsection 13.03 that,
except as disclosed in writing to the Purchaser, such Master Servicer or such
Depositor prior to such date: (i) the Seller is not aware and has not received
notice that any default, early amortization or other performance triggering
event has occurred as to any other securitization due to any act or failure
to
act of the Seller; (ii) the Seller has not been terminated as servicer in a
residential mortgage loan securitization, either due to a servicing default
or
to application of a servicing performance test or trigger; (iii) no material
noncompliance with the applicable servicing criteria with respect to other
securitizations of residential mortgage loans involving the Seller as servicer
has been disclosed or reported by the Seller; (iv) no material adverse changes
to the Seller’s policies or procedures with respect to the servicing function it
will perform under this Agreement and any Reconstitution Agreement for mortgage
loans of a type similar to the Mortgage Loans have occurred during the
three-year period immediately preceding the related Securitization Transaction;
(v) there are no aspects of the Seller’s financial condition that could have a
material adverse effect on the performance by the Seller of its servicing
obligations under this Agreement or any Reconstitution Agreement; (vi) there
are
no material legal or governmental proceedings pending (or known to be
contemplated) against the Seller, any Subservicer or any Third-Party Originator;
and (vii) there are no affiliations, relationships or transactions relating
to
the Seller, any Subservicer or any Third-Party Originator with respect to any
Securitization Transaction and any party thereto identified by the related
Depositor of a type described in Item 1119 of Regulation AB.
(ii) If
so
requested by the Purchaser, any Master Servicer or any Depositor on any date
following the date on which information is first provided to the Purchaser,
any
Master Servicer or any Depositor under Subsection 13.03, the Seller shall,
within five Business Days following such request, confirm in writing the
accuracy of the representations and warranties set forth in paragraph (i) of
this Subsection or, if any such representation and warranty is not accurate
as
of the date of such request, provide reasonably adequate disclosure of the
pertinent facts, in writing, to the requesting party.
-42-
Subsection
13.03. Information
to Be Provided by the Seller.
In
connection with any Securitization Transaction the Seller shall (i) within
five
Business Days following request by the Purchaser or any Depositor, provide
to
the Purchaser and such Depositor (or, as applicable, cause each Third-Party
Originator and each Subservicer to provide), in writing and in form and
substance reasonably satisfactory to the Purchaser and such Depositor, the
information and materials specified in paragraphs (i), (ii), (iii) and (vi)
of
this Subsection, and (ii) as promptly as practicable following notice to or
discovery by the Seller, provide to the Purchaser and any Depositor (in writing
and in form and substance reasonably satisfactory to the Purchaser and such
Depositor) the information specified in paragraph (iv) of this
Subsection.
(i) If
so
requested by the Purchaser or any Depositor, the Seller shall provide such
information regarding (i) the Seller, as originator of the Mortgage Loans
(including as an acquirer of Mortgage Loans from a Qualified Correspondent),
or
(ii) each Third-Party Originator, and (iii) as applicable, each Subservicer,
as
is requested for the purpose of compliance with Items 1103(a)(1), 1105, 1110,
1117 and 1119 of Regulation AB. Such information shall include, at a
minimum:
(a) the
originator’s form of organization;
(b) a
description of the originator’s origination program and how long the originator
has been engaged in originating residential mortgage loans, which description
shall include a discussion of the originator’s experience in originating
mortgage loans of a similar type as the Mortgage Loans; information regarding
the size and composition of the originator’s origination portfolio; and
information that may be material, in the good faith judgment of the Purchaser
or
any Depositor, to an analysis of the performance of the Mortgage Loans,
including the originators’ credit-granting or underwriting criteria for mortgage
loans of similar type(s) as the Mortgage Loans and such other information as
the
Purchaser or any Depositor may reasonably request for the purpose of compliance
with Item 1110(b)(2) of Regulation AB;
(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;
-43-
(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.
(ii) If
so
requested by the Purchaser or any Depositor, the Seller shall provide (or,
as
applicable, cause each Third-Party Originator to provide) Static Pool
Information with respect to the mortgage loans (of a similar type as the
Mortgage Loans, as reasonably identified by the Purchaser as provided
below)
originated by (i) the Seller, if the Seller is an originator of Mortgage Loans
(including as an acquirer of Mortgage Loans from a Qualified Correspondent),
and/or (ii) each Third-Party Originator. Such Static Pool Information shall
be
prepared by the Seller (or Third-Party Originator) on the basis of its
reasonable, good faith interpretation of the requirements of Item 1105(a)(1)-(3)
of Regulation AB. To the extent that there is reasonably available to the Seller
(or Third-Party Originator) Static Pool Information with respect to more than
one mortgage loan type, the Purchaser or any Depositor shall be entitled to
specify whether some or all of such information shall be provided pursuant
to
this paragraph. The content of such Static Pool Information may be in the form
customarily provided by the Seller, and need not be customized for the Purchaser
or any Depositor. Such Static Pool Information for each vintage origination
year
or prior securitized pool, as applicable, shall be presented in increments
no
less frequently than quarterly over the life of the mortgage loans included
in
the vintage origination year or prior securitized pool. The most recent periodic
increment must be as of a date no later than 135 days prior to the date of
the
prospectus or other offering document in which the Static Pool Information
is to
be included or incorporated by reference. The Static Pool Information shall
be
provided in an electronic format that provides a permanent record of the
information provided, such as a portable document format (pdf) file, or other
such electronic format reasonably required by the Purchaser or the Depositor,
as
applicable.
Promptly
following notice or discovery of a material error in Static Pool Information
provided pursuant to the immediately preceding paragraph (including an omission
to include therein information required to be provided pursuant to such
paragraph), the Seller shall provide corrected Static Pool Information to the
Purchaser or any Depositor, as applicable, in the same format in which Static
Pool Information was previously provided to such party by the
Seller.
If
so
requested by the Purchaser or any Depositor, the Seller shall provide (or,
as
applicable, cause each Third-Party Originator to provide), at the expense of
the
requesting party (to the extent of any additional incremental expense associated
with delivery pursuant to this Agreement), such agreed-upon procedures letters
of certified public accountants reasonably acceptable to the Purchaser or
Depositor, as applicable, pertaining to Static Pool Information relating to
prior securitized pools for securitizations closed on or after January 1, 2006
or, in the case of Static Pool Information with respect to the Seller’s or
Third-Party Originator’s originations or purchases, to calendar months
commencing January 1, 2006, as the Purchaser or such Depositor shall reasonably
request. Such letters shall be addressed to and be for the benefit of such
parties as the Purchaser or such Depositor shall designate, which may include,
by way of example, any Sponsor, any Depositor and any broker dealer acting
as
underwriter, placement agent or initial purchaser with respect to a
Securitization Transaction. Any such statement or letter may take the form
of a
standard, generally applicable document accompanied by a reliance letter
authorizing reliance by the addressees designated by the Purchaser or such
Depositor.
-44-
(iii) If
so
requested by the Purchaser or any Depositor, the Seller shall provide such
information regarding the Seller, as servicer of the Mortgage Loans, and each
Subservicer (each of the Seller and each Subservicer, for purposes of this
paragraph, a “Servicer”), as is requested for the purpose of compliance with
Items 1108, 1117 and 1119 of Regulation AB. Such information shall include,
at a
minimum:
(a) the
Servicer’s form of organization;
(b) a
description of how long the Servicer has been servicing residential mortgage
loans; a general discussion of the Servicer’s experience in servicing assets of
any type as well as a more detailed discussion of the Servicer’s experience in,
and procedures for, the servicing function it will perform under this Agreement
and any Reconstitution Agreements; information regarding the size, composition
and growth of the Servicer’s portfolio of residential mortgage loans of a type
similar to the Mortgage Loans and information on factors related to the Servicer
that may be material, in the good faith judgment of the Purchaser or any
Depositor, to any analysis of the servicing of the Mortgage Loans or the related
asset-backed securities, as applicable, including, without
limitation:
1. whether
any prior securitizations of mortgage loans of a type similar to the Mortgage
Loans involving the Servicer have defaulted or experienced an early amortization
or other performance triggering event because of servicing during the three-year
period immediately preceding the related Securitization
Transaction;
2. the
extent of outsourcing the Servicer utilizes;
3. whether
there has been previous disclosure of material noncompliance with the applicable
servicing criteria with respect to other securitizations of residential mortgage
loans involving the Servicer as a servicer during the three-year period
immediately preceding the related Securitization Transaction and which is
required to be disclosed for Regulation AB purposes;
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;
-45-
(c) a
description of any material changes during the three-year period immediately
preceding the related Securitization Transaction to the Servicer’s policies or
procedures with respect to the servicing function it will perform under this
Agreement and any Reconstitution Agreements for mortgage loans of a type similar
to the Mortgage Loans;
(d) information
regarding the Servicer’s financial condition, to the extent that there is a
material risk that an adverse financial event or circumstance involving the
Servicer could have a material adverse effect on the performance by the Seller
of its servicing obligations under this Agreement or any Reconstitution
Agreement;
(e) information
regarding advances made by the Servicer on the Mortgage Loans and the Servicer’s
overall servicing portfolio of residential mortgage loans for the three-year
period immediately preceding the related Securitization Transaction, which
may
be limited to a statement by an authorized officer of the Servicer to the effect
that the Servicer has made all advances required to be made on residential
mortgage loans serviced by it during such period, or, if such statement would
not be accurate, information regarding the percentage and type of advances
not
made as required, and the reasons for such failure to advance;
(f) a
description of the Servicer’s processes and procedures designed to address any
special or unique factors involved in servicing loans of a similar type as
the
Mortgage Loans;
(g) a
description of the Servicer’s processes for handling delinquencies, losses,
bankruptcies and recoveries, such as through liquidation of mortgaged
properties, sale of defaulted mortgage loans or workouts;
(h) information
as to how the Servicer defines or determines delinquencies and charge-offs,
including the effect of any grace period, re-aging, restructuring, partial
payments considered current or other practices with respect to delinquency
and
loss experience;
(i) a
description of any material legal or governmental proceedings pending (or known
to be contemplated) against the Servicer; and
(j) a
description of any affiliation or relationship between the Servicer and any
of
the following parties to a Securitization Transaction, as such parties are
identified to the Servicer by the Purchaser or any Depositor in writing in
advance of such Securitization Transaction:
(1) the
sponsor;
(2) the
depositor;
(3) the
issuing entity;
(4) any
servicer;
(5) any
trustee;
(6) any
originator;
-46-
(7) any
significant obligor;
(8) any
enhancement or support provider; and
(9) any
other
material transaction party.
(iv) If
so
requested by the Purchaser, any Master Servicer 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) (i) provide prompt notice to the
Purchaser, any Master Servicer and any Depositor in writing of (A) any material
litigation or governmental proceedings involving the Seller, any Subservicer
or
any Third-Party Originator, (B) any affiliations or relationships that develop
following the closing date of a Securitization Transaction between the Seller,
any Subservicer or any Third-Party Originator and any of the parties specified
in clause (d) of paragraph (i) of this Subsection (and any other parties
identified in writing by the requesting party) with respect to such
Securitization Transaction, (C) any Event of Default under the terms of this
Agreement or any Reconstitution Agreement, (D) any merger, consolidation or
sale
of substantially all of the assets of the Seller, and (E) the Seller’s entry
into an agreement with a Subservicer or Subcontractor to perform or assist
in
the performance of any of the Servicer’s obligations under this Agreement or any
Reconstitution Agreement and (ii) provide to the Purchaser and any Depositor
a
description of such proceedings, affiliations or relationships.
(v) As
a
condition to the succession to the Seller or any Subservicer as servicer or
subservicer under this Agreement or any Reconstitution Agreement by any Person
(i) into which the Seller or such Subservicer may be merged or consolidated,
or
(ii) which may be appointed as a successor to the Seller or any Subservicer,
the
Seller shall provide to the Purchaser and any Depositor, at least 15 calendar
days prior to the effective date of such succession or appointment, (x) written
notice to the Purchaser and any Depositor of such succession or appointment
and
(y) in writing and in form and substance reasonably satisfactory to the
Purchaser and such Depositor, all information reasonably requested by the
Purchaser or any Depositor in order to comply with its reporting obligation
under Item 6.02 of Form 8-K with respect to any class of asset-backed
securities.
(vi) In
addition to such information as the Seller, as servicer, is obligated to provide
pursuant to other provisions of this Agreement, if so requested by the Purchaser
or any Depositor, the Seller shall provide such additional information as such
party may reasonably request, including evidence of the authorization of the
person signing any certification or statement, audited financial information
and
reports, and such other information related to the Seller or any Subservicer
or
the Seller or such Subservicer’s performance hereunder and such information
reasonably available to Seller 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.
(vii) In
addition to such information as the Seller, as servicer, is obligated to provide
pursuant to other provisions of this Agreement, not later than ten days prior
to
the deadline for the filing of any distribution report on Form 10-D in respect
of any Securitization Transaction that includes any of the Mortgage Loans
serviced by the Seller or any Subservicer, the Seller or such Subservicer,
as
applicable, shall provide to the party responsible for filing such report
(including, if applicable, the Master Servicer) notice of the occurrence of
any
of the following events along with all information, data, and materials related
thereto as may be required to be included in the related distribution report
on
Form 10-D (as specified in the provisions of Regulation AB referenced
below):
|
(a)
|
any
material modifications, extensions or waivers of pool asset terms,
fees,
penalties or payments during the distribution period or that have
cumulatively become material over time (Item 1121(a)(11) of Regulation
AB);
|
-47-
|
(b)
|
material
breaches of pool asset representations or warranties or transaction
covenants (Item 1121(a)(12) of Regulation AB);
and
|
|
(c)
|
information regarding new asset-backed securities issuances backed by the same pool assets, any pool asset changes (such as, additions, substitutions or repurchases), and any material changes in origination, underwriting or other criteria for acquisition or selection of pool assets (Item 1121(a)(14) of Regulation AB). |
Subsection
13.04. Servicer
Compliance Statement.
On
or
before March 1 of each calendar year, commencing in 2007, the Seller shall
deliver to the Purchaser 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 during the
immediately preceding calendar year (or applicable portion thereof) and of
its
performance under this Agreement and any applicable Reconstitution Agreement
during such period has been made under such officer’s supervision, and (ii) to
the best of such officers’ knowledge, based on such review, the Seller has
fulfilled all of its obligations under this Agreement and any applicable
Reconstitution Agreement in all material respects throughout such calendar
year
(or applicable portion thereof) or, if there has been a failure to fulfill
any
such obligation in any material respect, specifically identifying each such
failure known to such officer and the nature and the status
thereof.
Subsection
13.05. Report
on Assessment of Compliance and Attestation.
(i) On
or
before March 1 of each calendar year, commencing in 2007, the Seller
shall:
(1) deliver
to the Purchaser, any Master Servicer and any Depositor a report (in form and
substance reasonably satisfactory to the Purchaser, such Master Servicer and
such Depositor) regarding the Seller’s assessment of compliance with the
Servicing Criteria during the immediately preceding calendar year, as required
under Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122 of Regulation
AB. Such report shall be addressed to the Purchaser, such Master Servicer and
such Depositor and signed by an authorized officer of the Seller, and shall
address each of the Servicing Criteria specified on a certification
substantially in the form of Exhibit 15 hereto delivered to the Purchaser
concurrently with the execution of this Agreement;
-48-
(2) deliver
to the Purchaser, any Master Servicer and any Depositor a report of a registered
public accounting firm reasonably acceptable to the Purchaser, such Master
Servicer and such Depositor that attests to, and reports on, the assessment
of
compliance made by the Seller and delivered pursuant to the preceding paragraph.
Such attestation shall be in accordance with Rules 1-02(a)(3) and 2-02(g) of
Regulation S-X under the Securities Act and the Exchange Act;
(3) cause
each Subservicer, and each Subcontractor determined by the Seller pursuant
to
Subsection 13.06(ii) to be “participating in the servicing function” within the
meaning of Item 1122 of Regulation AB, to deliver to the Purchaser, any Master
Servicer and any Depositor an assessment of compliance and accountants’
attestation as and when provided in paragraphs (i) and (ii) of this Subsection;
and
(4) 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 14.
The
Seller acknowledges that the parties identified in clause (i)(4) 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)(4) above unless a Depositor is required under the Exchange Act to
file an annual report on Form 10-K with respect to an issuing entity whose
asset
pool includes Mortgage Loans.
(ii) Each
assessment of compliance provided by a Subservicer pursuant to Subsection
13.05(i)(1) shall address each of the Servicing Criteria specified on a
certification substantially in the form of Exhibit 15 hereto delivered to the
Purchaser concurrently with the execution of this Agreement or, in the case
of a
Subservicer subsequently appointed as such, on or prior to the date of such
appointment. An assessment of compliance provided by a Subcontractor pursuant
to
Subsection 13.05(i)(3) need not address any elements of the Servicing Criteria
other than those specified by the Seller pursuant to Subsection
13.06.
Subsection
13.06. Use
of
Subservicers and Subcontractors.
The
Seller shall not hire or otherwise utilize the services of any Subservicer
to
fulfill any of the obligations of the Seller as servicer under this Agreement
or
any Reconstitution Agreement unless the Seller complies with the provisions
of
paragraph (i) of this Subsection. The Seller shall not hire or otherwise utilize
the services of any Subcontractor, and shall not permit any Subservicer to
hire
or otherwise utilize the services of any Subcontractor, to fulfill any of the
obligations of the Seller as servicer under this Agreement or any Reconstitution
Agreement unless the Seller complies with the provisions of paragraph (ii)
of
this Subsection.
-49-
(i) It
shall
not be necessary for the Seller to seek the consent of the Purchaser or any
Depositor to the utilization of any Subservicer. The Seller shall cause any
Subservicer used by the Seller (or by any Subservicer) for the benefit of the
Purchaser and any Depositor to comply with the provisions of this Subsection
and
with Subsections 13.02, 13.03(iii), (v), (vi) and (vii), 13.04, 13.05 and 13.07
of this Agreement to the same extent as if such Subservicer were the Seller,
and
to provide the information required with respect to such Subservicer under
Subsection 13.03(iv) of this Agreement. The Seller shall be responsible for
obtaining from each Subservicer and delivering to the Purchaser and any
Depositor any servicer compliance statement required to be delivered by such
Subservicer under Subsection 13.04, any assessment of compliance and attestation
required to be delivered by such Subservicer under Subsection 13.05 and any
certification required to be delivered to the Person that will be responsible
for signing the Sarbanes Certification under Subsection 13.05 as and when
required to be delivered.
(ii) It
shall
not be necessary for the Seller to seek the consent of the Purchaser or any
Depositor to the utilization of any Subcontractor. The Seller shall promptly
upon request provide to the Purchaser, any Master Servicer and any Depositor
(or
any designee of the Depositor, such as an administrator) a written description
(in form and substance satisfactory to the Purchaser, such Master Servicer
and
such Depositor) of the role and function of each Subcontractor utilized by
the
Seller or any Subservicer, specifying (i) the identity of each such
Subcontractor, (ii) which (if any) of such Subcontractors are “participating in
the servicing function” within the meaning of Item 1122 of Regulation AB, and
(iii) which elements of the Servicing Criteria will be addressed in assessments
of compliance provided by each Subcontractor identified pursuant to clause
(ii)
of this paragraph.
As
a
condition to the utilization of any Subcontractor determined to be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, the Seller shall cause any such Subcontractor used by the Seller
(or by any Subservicer) for the benefit of the Purchaser and any Depositor
to
comply with the provisions of Subsections 13.05 and 13.07 of this Agreement
to
the same extent as if such Subcontractor were the Seller. The Seller shall
be
responsible for obtaining from each Subcontractor and delivering to the
Purchaser and any Depositor any assessment of compliance and attestation
required to be delivered by such Subcontractor under Subsection 13.05, in each
case as and when required to be delivered.
Subsection
13.07. Indemnification;
Remedies.
(a) The
Seller shall indemnify the Purchaser, each affiliate of the Purchaser, any
Master Servicer 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, agents and
affiliates of each of the foregoing and of the Depositor (each, an “Indemnified
Party”), and shall hold each of them harmless from and against any claims,
losses, damages, penalties, fines, forfeitures, legal fees and expenses and
related costs, judgments, and any other costs, fees and expenses that any of
them may sustain arising solely out of or based solely upon:
(i)(A)
any untrue statement of a material fact (regardless
of whether an admission has been made or a final judgment has been entered
by a
finder of fact as to such untrue statement)
contained in any information, report, certification, data, accountants’ letter
or other material provided in written or electronic form under this Section
13
by or on behalf of the Seller, or provided under this Section 13 by or on behalf
of any Subservicer, Subcontractor or Third-Party Originator (collectively,
the
“Seller Information”), or (B) the 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 (regardless
of whether an admission has been made or a final judgment has been entered
by a
finder of fact as to such omission);
provided, by way of clarification, that clause (B) of this paragraph shall
be
construed solely by reference to the Seller Information and not to any other
information communicated in connection with a sale or purchase of securities,
without regard to whether the Seller Information or any portion thereof is
presented together with or separately from such other information;
-50-
(ii) any
breach by the Seller of its obligations under this Section 13 or any failure
by
the Seller, any Subservicer, any Subcontractor or any Third-Party Originator
to
deliver any information, report, certification, accountants’ letter or other
material when and as required under this Section 13, including any failure
by
the Seller to identify pursuant to Subsection 13.06(ii) any Subcontractor
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB; or
(iii) any
breach by the Seller of a representation or warranty set forth in Subsection
13.02(i) or in a writing furnished pursuant to Subsection 13.02(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
Subsection 13.02(ii) to the extent made as of a date subsequent to such closing
date; or
(iv) the
negligence, bad faith or willful misconduct of the Seller in connection with
its
performance under this Section 13.
If
the
indemnification provided for herein is unavailable or insufficient to hold
harmless an Indemnified Party, then the Seller agrees that it shall contribute
to the amount paid or payable by such Indemnified Party as a result of any
claims, losses, damages or liabilities incurred by such Indemnified Party in
such proportion as is appropriate to reflect the relative fault of such
Indemnified Party on the one hand and the Seller on the other.
-51-
In
the
case of any failure of performance described in clause (a)(ii) of this
Subsection, the Seller shall promptly reimburse the Purchaser, any Depositor,
as
applicable, and each Person responsible for the preparation, execution or filing
of any report required to be filed with the Commission with respect to such
Securitization Transaction, or for execution of a certification pursuant to
Rule
13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to such
Securitization Transaction, for all costs reasonably incurred by each such
party
in order to obtain the information, report, certification, accountants’ letter
or other material not delivered as required by the Seller, any Subservicer,
any
Subcontractor or any Third-Party Originator.
This
indemnification shall survive the termination of this Agreement or the
termination of any party to this Agreement.
(b)(i) Any
failure by the Seller, any Subservicer, any Subcontractor or any Third-Party
Originator to deliver any information, report, certification, accountants’
letter or other material when and as required under this Section 13, or any
breach by the Seller of a representation or warranty set forth in Subsection
13.02(i) or in a writing furnished pursuant to Subsection 13.02(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
Subsection 13.02(ii) to the extent made as of a date subsequent to such closing
date, shall, except as provided in clause (ii) of this paragraph, immediately
and automatically, without notice or grace period, constitute an Event of
Default with respect to the Seller under this Agreement and any applicable
Reconstitution Agreement, and shall entitle the Purchaser, Master Servicer
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.
(ii) Any
failure by the Seller, any Subservicer or any Subcontractor to deliver any
information, report, certification or accountants’ letter when and as required
under Subsection 13.04 or 13.05, including (except as provided below) any
failure by the Seller to identify pursuant to Subsection 13.06(ii) any
Subcontractor “participating in the servicing function” within the meaning of
Item 1122 of Regulation AB, which continues unremedied for ten calendar days
after the date on which such information, report, certification or accountants’
letter was required to be delivered shall constitute an Event of Default with
respect to the Seller under this Agreement and any applicable Reconstitution
Agreement, and shall entitle the Purchaser, any Master Servicer 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.
-52-
Neither
the Purchaser nor any Depositor shall be entitled to terminate the rights and
obligations of the Seller pursuant to this Subsection (b)(ii) if a failure
of
the Seller to identify a Subcontractor “participating in the servicing function”
within the meaning of Item 1122 of Regulation AB was attributable solely to
the
role or functions of such Subcontractor with respect to mortgage loans other
than the Mortgage Loans.
(iii) The
Seller shall promptly reimburse the Purchaser (or any designee of the Purchaser,
such as a master servicer) and any Depositor, as applicable, for all reasonable
expenses incurred by the Purchaser (or such designee) or such Depositor, as
such
are incurred, in connection with the termination under this Section 13 of
the Seller as servicer and the transfer of servicing of the Mortgage Loans
to a
successor servicer. The provisions of this paragraph shall not limit whatever
rights the Purchaser or any Depositor may have under other provisions of this
Agreement and/or any applicable Reconstitution Agreement or otherwise, whether
in equity or at law, such as an action for damages, specific performance or
injunctive relief.
SECTION
14. The
Seller.
Subsection
14.01. Additional
Indemnification by the Seller.
In
addition to the indemnification provided in Subsection 7.03, the Seller
shall indemnify the Initial Purchaser and any subsequent Purchaser and hold
them
harmless against any and all claims, losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments,
and any other costs, fees and expenses that the Initial Purchaser and any
subsequent Purchaser may sustain in any way related to the failure of the Seller
to perform its obligations under this Agreement including but not limited to
its
obligation to service and administer the Mortgage Loans in strict compliance
with the terms of this Agreement or any Reconstitution Agreement entered into
pursuant to Section 12.
Subsection
14.02. Merger
or Consolidation of the Seller.
The
Seller shall keep in full force and effect its existence and rights as a federal
association under the laws of the United States of America except as permitted
herein, and shall obtain and preserve its qualification to do business in which
such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement or any of the Mortgage Loans, and to enable
the
Seller to perform its duties under this Agreement.
Any
Person into which the Seller may be merged or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Seller
shall
be a party, or any Person succeeding to the business of the Seller, shall be
the
successor of the Seller hereunder, without the execution or filing of any paper
or any further act on the part of any of the parties hereto, anything herein
to
the contrary notwithstanding; provided, however, that the successor or surviving
Person shall (i) be an institution whose deposits are insured by FDIC or a
company whose business is the origination and servicing of mortgage loans,
and
(ii) be a Xxxxxx Xxx and Xxxxxxx
Mac
approved
seller/servicer and shall satisfy any requirements of Section 17 with
respect to the qualifications of a successor to the Seller.
-53-
Subsection
14.03. Limitation
on Liability of the Seller and Others.
Neither
the Seller nor any of the officers, employees, attorneys or agents of the Seller
shall be under any liability to the Purchaser for any action taken or for
refraining from the taking of any action in good faith in connection with the
servicing of the Mortgage Loans pursuant to this Agreement, or for errors in
judgment; provided, however, that this provision shall not protect the Seller
or
any such person against any breach of warranties or representations made herein,
or failure to perform its obligations in strict compliance with any standard
of
care set forth in this Agreement, or any liability which would otherwise be
imposed by reason of any breach of the terms and conditions of this Agreement.
The Seller and any officer, employee, attorney or agent of the Seller may rely
in good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder. The Seller
shall not be under any obligation to appear in, prosecute or defend any legal
action which is not incidental to its obligation to sell or duty to service
the
Mortgage Loans in accordance with this Agreement and which in its opinion may
result in its incurring any expenses or liability; provided, however, that
the
Seller may, with the consent of the Purchaser, undertake any such action which
it may deem necessary or desirable in respect to this Agreement and the rights
and duties of the parties hereto. In such event, the legal expenses and costs
of
such action and any liability resulting therefrom shall be expenses, costs
and
liabilities for which the Purchaser shall be liable, the Seller shall be
entitled to reimbursement therefor from the Purchaser upon written demand except
when such expenses, costs and liabilities are subject to the Seller's
indemnification under Subsections 7.03 or 14.01.
Subsection
14.04. Seller
Not to Resign.
The
Seller shall not assign this Agreement or resign from the obligations and duties
hereby imposed on it except by mutual written consent of the Seller and the
Purchaser, which consent shall not be unreasonably withheld, or upon the
determination that its servicing duties hereunder are no longer permissible
under applicable law and such incapacity cannot be cured by the Seller in which
event the Seller may resign as servicer. Any such determination permitting
the
resignation of the Seller as servicer shall be evidenced by an Opinion of
Counsel to such effect delivered to the Purchaser which Opinion of Counsel
shall
be in form and substance reasonably acceptable to the Purchaser and which shall
be provided at the cost of the Seller. No such resignation shall become
effective until a successor shall have assumed the Seller's responsibilities
and
obligations hereunder in the manner provided in Section 17.
Subsection
14.05. No
Transfer of Servicing.
The
Seller acknowledges that the Purchaser has acted in reliance upon the Seller's
independent status, the adequacy of its servicing facilities, plan, personnel,
records and procedures, its integrity, reputation and financial standing and
the
continuance thereof. Without in any way limiting the generality of this Section,
the Seller shall not either assign this Agreement or the servicing hereunder
or
delegate its rights or duties hereunder or any portion thereof, without the
prior written approval of the Purchaser, which consent will not be unreasonably
withheld. Notwithstanding the foregoing, the Seller shall have the right to
sell
the servicing of the Mortgage Loans to a third party with the consent of the
Purchaser which shall not be unreasonably withheld; provided that, prior to
effecting such sale, the Seller must offer the Purchaser the right to purchase
such servicing on the same terms and conditions on which the servicing is being
offered to such third party.
-54-
SECTION
15. DEFAULT.
Subsection
15.01. Events
of Default.
In
case
one or more of the following Events of Default by the Seller shall occur and
be
continuing, that is to say:
(i) any
failure by the Seller to remit to the Purchaser any payment required to be
made
under the terms of this Agreement which continues unremedied for a period of
one
(1) Business Day after the date upon which written notice of such failure,
requiring the same to be remedied, shall have been given to the Seller by the
Purchaser; or
(ii) failure
on the part of the Seller duly to observe or perform in any material respect
any
other of the covenants or agreements on the part of the Seller set forth in
this
Agreement or in the Custodial Agreement which continues unremedied for a period
of thirty (30) days (except that such number of days shall be fifteen (15)
in
the case of a failure to pay any premium for any insurance policy required
to be
maintained under this Agreement) after the date on which written notice of
such
failure, requiring the same to be remedied, shall have been given to the Seller
by the Purchaser or by the Custodian; or
(iii) a
decree
or order of a court or agency or supervisory authority having jurisdiction
for
the appointment of a conservator or receiver or liquidator in any insolvency,
bankruptcy, readjustment of debt, marshalling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs, shall
have been entered against the Seller and such decree or order shall have
remained in force undischarged or unstayed for a period of sixty (60) days;
or
(iv) the
Seller shall consent to the appointment of a conservator or receiver or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshalling
of
assets and liabilities or similar proceedings of or relating to the Seller
or of
or relating to all or substantially all of its property; or
(v) the
Seller shall admit in writing its inability to pay its debts generally as they
become due, file a petition to take advantage of any applicable insolvency
or
reorganization statute, make an assignment for the benefit of its creditors,
or
voluntarily suspend payment of its obligations; or
(vi) failure
by the Seller to be in compliance with the “doing business” or licensing laws of
any jurisdiction where a Mortgaged Property is located , to the extent such
laws
are applicable to the Seller; or
(vii) the
Seller ceases to meet the qualifications of either a Xxxxxx Xxx or Xxxxxxx
Mac
seller/servicer, the Seller is not eligible to act as servicer or master
servicer for mortgage loans subject to residential mortgage backed securities
transactions rated by any nationally recognized rating agency or is eligible
to
act as such only with enhanced credit support; or
-55-
(viii) the
Seller attempts to assign its right to servicing compensation hereunder or
the
Seller attempts, without the written consent of the Purchaser, to sell or
otherwise dispose of all or substantially all of its property or assets or
to
assign this Agreement or the servicing responsibilities hereunder or to delegate
its duties hereunder or any portion thereof; or
(ix) Seller’s
membership in MERS is terminated for any reason and any of the Mortgage Loans
then serviced by the Seller are MERS Mortgage Loans; or
(x) the
Seller fails to duly perform, within the required time period, its obligations
under Section 13 or Sections 11.24, 11.25 or 11.26 of the Servicing Addendum,
which failure continues unremedied for a period of three (3) days after the
date
on which written notice of such failure, requiring the same to be remedied,
shall have been given to the Seller by any party to this Agreement or by any
master servicer responsible for master servicing the Mortgage Loans pursuant
to
a securitization of such Mortgage Loans;
then,
and
in each and every such case, so long as an Event of Default shall not have
been
remedied, the Purchaser, by notice in writing to the Seller may, in addition
to
whatever rights the Purchaser may have at law or equity to damages, including
injunctive relief and specific performance, terminate all the rights and
obligations of the Seller as servicer under this Agreement. On or after the
receipt by the Seller of such written notice, all authority and power of the
Seller to service the Mortgage Loans under this Agreement shall on the date
set
forth in such notice pass to and be vested in the successor appointed pursuant
to Section 17;
Subsection
15.02. Waiver
of Defaults.
The
Purchaser may waive any default by the Seller in the performance of its
obligations hereunder and its consequences. Upon any such waiver of a past
default, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been remedied for every purpose of this
Agreement. No such waiver shall extend to any subsequent or other default or
impair any right consequent thereon except to the extent expressly so
waived.
SECTION
16. Termination.
The
respective obligations and responsibilities of the Seller, as servicer, shall
terminate upon the distribution to the Purchaser of the final payment or
liquidation with respect to the last Mortgage Loan (or advances of same by
the
Seller) or the disposition of all property acquired upon foreclosure or deed
in
lieu of foreclosure with respect to the last Mortgage Loan and the remittance of
all funds due hereunder unless terminated with respect to all or a portion
of
the Mortgage Loans on an earlier date at the option of the Purchaser pursuant
to
Section 15. Upon written request from the Purchaser in connection with any
such
termination, the Seller shall prepare, execute and deliver, any and all
documents and other instruments, place in the Purchaser's possession all
Mortgage Files, and do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, including any transfers on the MERS System, or otherwise,
at
the Seller’s sole expense; provided that, any additional Assignments of Mortgage
that are required due to such transfer shall be prepared at the Purchaser’s
cost. The Seller agrees to cooperate with the Purchaser and such successor
in
effecting the termination of the Seller’s responsibilities and rights hereunder
as servicer, including, without limitation, the transfer to such successor
for
administration by it of all cash amounts which shall at the time be credited
by
the Seller to the Custodial Account, REO Account or Escrow Account or thereafter
received with respect to the Mortgage Loans.
-56-
SECTION
17. Successor
to the Seller.
Prior
to termination of Seller's responsibilities and duties under this Agreement
pursuant to Section 12, 15 or 16, the Purchaser shall (i) succeed to and
assume all of the Seller's responsibilities, rights, duties and obligations
under this Agreement, or (ii) appoint a successor which shall succeed to all
rights and assume all of the responsibilities, duties and liabilities of the
Seller as servicer under this Agreement. In connection with such appointment
and
assumption, the Purchaser may make such arrangements for the compensation of
such successor out of payments on Mortgage Loans as it and such successor shall
agree. In the event that the Seller's duties, responsibilities and liabilities
as servicer under this Agreement should be terminated pursuant to the
aforementioned Sections, the Seller shall discharge such duties and
responsibilities during the period from the date it acquires knowledge of such
termination until the effective date thereof with the same degree of diligence
and prudence which it is obligated to exercise under this Agreement, and shall
take no action whatsoever that might impair or prejudice the rights or financial
condition of the Purchaser or such successor. The termination of the Seller
as
servicer pursuant to the aforementioned Sections shall not become effective
until a successor shall be appointed pursuant to this Section 17 and shall
in no event relieve the Seller of the representations and warranties made
pursuant to Subsections 7.01 and 7.02 and the remedies available to the
Purchaser under Subsection 7.03 or 7.04, it being understood and agreed
that the provisions of such Subsections 7.01, 7.02, 7.03, 7.04 and 14.01 shall
be applicable to the Seller notwithstanding any such resignation or termination
of the Seller, or the termination of this Agreement.
Any
successor appointed as provided herein shall execute, acknowledge and deliver
to
the Seller and to the Purchaser an instrument accepting such appointment,
whereupon such successor shall become fully vested with all the rights, powers,
duties, responsibilities, obligations and liabilities of the Seller, with like
effect as if originally named as a party to this Agreement and the Custodial
Agreement provided, however, that such successor shall not assume, and Seller
shall indemnify such successor for, any and all liabilities arising out of
the
Seller's acts as servicer. Any termination of the Seller as servicer pursuant
to
Section 12, 15 or 16 shall not affect any claims that the Purchaser may
have against the Seller arising prior to any such termination or resignation
or
remedies with respect to such claims.
The
Seller shall timely deliver to the successor the funds in the Custodial Account,
REO Account and the Escrow Account and the Servicing Files and Mortgage Files
and related documents and statements held by it hereunder and the Seller shall
account for all funds. The Seller shall execute and deliver such instruments
and
do such other things all as may reasonably be required to more fully and
definitely vest and confirm in the successor all such rights, powers, duties,
responsibilities, obligations and liabilities of the Seller as servicer
including making any transfers on the MERS System. The successor shall make
arrangements as it may deem appropriate to reimburse the Seller for amounts
the
Seller actually expended as servicer pursuant to this Agreement which the
successor is entitled to retain hereunder and which would otherwise have been
recovered by the Seller pursuant to this Agreement but for the appointment
of
the successor servicer.
-57-
SECTION
18. Financial
Statements.
The
Seller understands that in connection with the Purchaser's marketing of the
Mortgage Loans, the Purchaser may make available to prospective purchasers
the
Seller's audited financial statements for the most recently completed three
(3)
fiscal years respecting which such statements are available. The Seller also
shall make available any comparable interim statements to the extent any such
statements have been prepared by the Seller (and are available upon request
to
members or stockholders of the Seller or the public at large). The Seller,
if it
has not already done so, agrees to furnish promptly to the Purchaser copies
of
the statements specified above. The Seller also shall make available information
on its servicing performance with respect to mortgage loans serviced for others,
including delinquency ratios.
The
Seller also agrees to allow reasonable access to knowledgeable financial,
accounting, origination and servicing officers of the Seller for the purpose
of
answering questions asked by any prospective purchaser regarding recent
developments affecting the Seller, its loan origination or servicing practices
or the audited financial statements of the Seller.
SECTION
19. Mandatory
Delivery: Grant of Security Interest.
The
sale and delivery of each Mortgage Loan on or before the related Closing Date
is
mandatory from and after the date of the execution of the related Confirmation,
it being specifically understood and agreed that each Mortgage Loan is unique
and identifiable on the date hereof and that an award of money damages would
be
insufficient to compensate the Initial Purchaser for the losses and damages
incurred by the Initial Purchaser (including damages to prospective purchasers
of the Mortgage Loans) in the event of the Seller's failure to deliver each
of
the related Mortgage Loans or one or more Mortgage Loans otherwise acceptable
to
the Initial Purchaser on or before the related Closing Date. The Seller hereby
grants to the Initial Purchaser a lien on and a continuing security interest
in
each Mortgage Loan and each document and instrument evidencing each such
Mortgage Loan to secure the performance by the Seller of its obligation
hereunder, and the Seller agrees that it holds such Mortgage Loans in custody
for the Initial Purchaser subject to the Initial Purchaser's (i) right to reject
any Mortgage Loan under the terms of this Agreement and the related
Confirmation, and (ii) obligation to pay the related Purchase Price for the
Mortgage Loans. All rights and remedies of the Purchaser under this Agreement
are distinct from, and cumulative with, any other rights or remedies under
this
Agreement or afforded by law or equity and all such rights and remedies may
be
exercised concurrently, independently or successively.
SECTION
20. Notices.
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if mailed, by registered or certified mail,
return receipt requested, or, if by other means, when received by the other
party at the address as follows:
(i) if
to the
Purchaser:
Greenwich
Capital Financial Products, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Attn:
Mortgage Finance
-58-
With
copies to:
Greenwich
Capital Financial Products, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Attn:
Legal
Greenwich
Capital Financial Products, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Attn:
Operations
(ii) if
to the
Seller:
Downey
Savings and Loan Association, F.A.
0000
Xxxxxxxx Xxxx
Xxxxxxx
Xxxxx, Xxxxxxxxxx 00000
Attn:
Director
of Secondary Marketing
With
a
copy to: General
Counsel
or
such
other address as may hereafter be furnished to the other party by like notice.
Any such demand, notice or communication hereunder shall be deemed to have
been
received on the date delivered to or received at the premises of the addressee
(as evidenced, in the case of registered or certified mail, by the date noted
on
the return receipt).
SECTION
21. Severability
Clause.
Any
part, provision, representation or warranty of this Agreement which is
prohibited or which is held to be void or unenforceable shall be ineffective
to
the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof. Any part, provision, representation or warranty
of
this Agreement which is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall be ineffective, as to such jurisdiction,
to the extent of such prohibition or unenforceability without invalidating
the
remaining provisions hereof, and any such prohibition or unenforceability in
any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof. If the invalidity of
any
part, provision, representation or warranty of this Agreement shall deprive
any
party of the economic benefit intended to be conferred by this Agreement, the
parties shall negotiate, in good-faith, to develop a structure the economic
effect of which is nearly as possible the same as the economic effect of this
Agreement without regard to such invalidity.
-59-
SECTION
22. Counterparts.
This
Agreement may be executed simultaneously in any number of counterparts. Each
counterpart shall be deemed to be an original, and all such counterparts shall
constitute one and the same instrument.
SECTION
23. GOVERNING
LAW; SUBMISSION TO JURISDICTION.
THE
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO ANY CONFLICTS OF LAW PROVISIONS (EXCEPT FOR SECTIONS
5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW) 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
24. Intention
of the Parties.
It is
the intention of the parties that the Initial Purchaser is purchasing, and
the
Seller is selling, the Mortgage Loans and not a debt instrument of the Seller
or
another security. Accordingly, the parties hereto each intend to treat the
transaction for Federal income tax purposes as a sale by the Seller, and a
purchase by the Purchaser, of the Mortgage Loans. The Initial Purchaser shall
have the right to review the Mortgage Loans and the related Mortgage Loan Files
to determine the characteristics of the Mortgage Loans which shall affect the
Federal income tax consequences of owning the Mortgage Loans and the Seller
shall cooperate with all reasonable requests made by the Initial Purchaser
in
the course of such review.
SECTION
25. Successors
and Assigns.
This
Agreement shall bind and inure to the benefit of and be enforceable by the
Seller and the Purchaser and the respective successors and assigns of the Seller
and the Purchaser. The Purchaser may assign this Agreement to any Person to
whom
any Mortgage Loan is transferred whether pursuant to a sale or financing and
to
any Person to whom the servicing or master servicing of any Mortgage Loan is
sold or transferred. Upon any such assignment, the Person to whom such
assignment is made shall succeed to all rights and obligations of the Purchaser
under this Agreement to the extent of the related Mortgage Loan or Mortgage
Loans and this Agreement, to the extent of the related Mortgage Loan or Loans,
shall be deemed to be a separate and distinct Agreement between the Seller
and
such Purchaser, and a separate and distinct Agreement between the Seller and
each other Purchaser to the extent of the other related Mortgage Loan or Loans.
In the event that this Agreement is assigned to any Person to whom the servicing
or master servicing of any Mortgage Loan is sold or transferred, the rights
and
benefits under this Agreement which inure to the Purchaser shall inure to the
benefit of both the Person to whom such Mortgage Loan is transferred and the
Person to whom the servicing or master servicing of the Mortgage Loan has been
transferred; provided that, the right to require a Mortgage Loan to be
repurchased by the Seller pursuant to Subsection 7.03 or 7.04 shall be
retained solely by the Purchaser. This Agreement shall not be assigned, pledged
or hypothecated by the Seller to a third party without the consent of the
Purchaser.
SECTION
26. Waivers.
No term
or provision of this Agreement may be waived or modified unless such waiver
or
modification is in writing and signed by the party against whom such waiver
or
modification is sought to be enforced.
-60-
SECTION
27. Exhibits.
The
exhibits to this Agreement are hereby incorporated and made a part hereof and
are an integral part of this Agreement.
SECTION
28. Nonsolicitation.
The
Seller agrees that it will not take any action to solicit the refinancing of
any
Mortgage Loan following the date hereof or provide information to any other
entity to solicit the refinancing of any Mortgage Loan; provided that, the
foregoing shall not preclude the Seller from engaging in solicitations to the
general public by newspaper, radio, television or other media which are not
directed toward the Mortgagors or from refinancing the Mortgage Loan of any
Mortgagor who, without solicitation, contacts the Seller to request the
refinancing of the related Mortgage Loan.
SECTION
29. General
Interpretive Principles.
For
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires:
|
(a)
|
the
terms defined in this Agreement have the meanings assigned to them
in this
Agreement and include the plural as well as the singular, and the
use of
any gender herein shall be deemed to include the other
gender;
|
|
(b)
|
accounting
terms not otherwise defined herein have the meanings assigned to
them in
accordance with generally accepted accounting
principles;
|
|
(c)
|
references
herein to “Articles,” “Sections,” “Subsections,” “Paragraphs,” and other
Subdivisions without reference to a document are to designated Articles,
Sections, Subsections, Paragraphs and other subdivisions of this
Agreement;
|
|
(d)
|
reference
to a Subsection without further reference to a Section is a reference
to
such Subsection as contained in the same Section in which the reference
appears, and this rule shall also apply to Paragraphs and other
subdivisions;
|
|
(e)
|
the
words “herein,” “hereof,” “hereunder” and other words of similar import
refer to this Agreement as a whole and not to any particular provision;
and
|
|
(f)
|
the
term “include” or “including” shall mean without limitation by reason of
enumeration.
|
SECTION
30. Reproduction
of Documents.
This
Agreement and all documents relating thereto, including, without limitation,
(a)
consents, waivers and modifications which may hereafter be executed, (b)
documents received by any party at the closing, and (c) audited 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.
-61-
SECTION
31. Third
Party Beneficiary.
Each
Master Servicer shall be considered a third-party beneficiary of this Agreement,
entitled to all the rights and benefits hereunder as if it were a direct party
to this Agreement.
SECTION
32. Further
Agreements.
The
Seller and the Purchaser each agree to execute and deliver to the other such
reasonable and appropriate additional documents, instruments or agreements
as
may be necessary or appropriate to effectuate the purposes of this
Agreement.
SECTION
33. Entire
Agreement.
This
Agreement constitutes the entire agreement and understanding of the parties
with
respect to the matters and transactions contemplated by this Agreement and,
except to the extent otherwise set forth in writing, supersedes any prior
agreement and understandings with respect to those matters and
transactions.
-62-
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
SAVINGS AND LOAN
ASSOCIATION,
F.A.
(Seller)
|
||
| |
|
|
| By: | ||
|
|
||
| Name: | ||
|
Title:
|
||
|
GREENWICH
CAPITAL FINANCIAL
PRODUCTS,
INC.
(Initial
Purchaser)
|
||
| |
|
|
| By: | ||
|
|
||
| Name: | ||
|
Title:
|
||
-63-
EXHIBIT
1
SELLER'S
OFFICER'S CERTIFICATE
I,
________________________, hereby certify that I am the duly elected
______________ of Xxxxxx Savings and Loan Association, F.A., a ______________
(the “Seller”), and further certify, on behalf of the Seller as
follows:
|
1.
|
Attached
hereto as Attachment I are a true and correct copy of the charter
and
by-laws of the Seller as are in full force and effect on the date
hereof.
|
|
2.
|
No
proceedings looking toward merger, liquidation, dissolution or bankruptcy
of the Seller are pending or
contemplated.
|
|
3.
|
Each
person who, as an officer or attorney-in-fact of the Seller, signed
(a)
the Master Mortgage Loan Purchase and Servicing Agreement (the “Purchase
Agreement”), dated as of December 1, 2005, by and between the Seller and
Greenwich Capital Financial Products, Inc. (the “Purchaser”); (b) the
Confirmation, dated _____________ 200_, between the Seller and the
Purchaser (the “Confirmation”); (c) the Custodial Agreement, dated as of
___________, among the Purchaser, the Seller and ____________ (the
“Custodial Agreement”); and (d) any other document delivered prior hereto
or on the date hereof in connection with the sale and servicing of
the
Mortgage Loans in accordance with the Purchase Agreement and the
Confirmation was, at the respective times of such signing and delivery,
and is as of the date hereof, duly elected or appointed, qualified
and
acting as such officer or attorney-in-fact, and the signatures of
such
persons appearing on such documents are their genuine
signatures.
|
|
4.
|
Attached
hereto as Attachment II is a true and correct copy of the resolutions
duly
adopted by the board of directors of the Seller on ________________,
200_
(the “Resolutions”) with respect to the authorization and approval of the
sale and servicing of the Mortgage Loans; said Resolutions have not
been
amended, modified, annulled or revoked and are in full force and
effect on
the date hereof.
|
|
5.
|
Attached
hereto as Attachment III is a Certificate of Corporate Existence
of the
Seller dated ______________, 200_. No event has occurred since
___________________, 200_ which has affected the good standing of
the
Seller under the laws of the State of
___________.
|
|
6.
|
All
of the representations and warranties of the Seller contained in
Subsections 7.01 and 7.02 of the Purchase Agreement were true and
correct
in all material respects as of the date of the Purchase Agreement
and are
true and correct in all material respects as of the date
hereof.
|
|
7.
|
The
Seller has performed all of its duties and has satisfied all the
material
conditions on its part to be performed or satisfied prior to the
related
Closing Date pursuant to the Purchase Agreement and the related
Confirmation.
|
All
capitalized terms used herein and not otherwise defined shall have the meaning
assigned to them in the Purchase Agreement.
-2-
IN
WITNESS WHEREOF, I have hereunto signed my name and affixed the seal of the
Seller.
Dated:
_________________________
[Seal]
|
XXXXXX
SAVINGS AND LOAN
ASSOCIATION,
F.A.
(Seller)
|
||
| |
|
|
| By: | ||
|
|
||
|
Name:
|
||
|
|
||
|
Title:
|
||
I,
_______________________, Secretary of the Seller, hereby certify that
_________________________ is the duly elected, qualified and acting Vice
President of the Seller and that the signature appearing above is such person’s
genuine signature.
IN
WITNESS WHEREOF, I have hereunto signed my name.
Dated:_________________________
[Seal]
|
XXXXXX
SAVINGS AND LOAN
ASSOCIATION,
F.A.
(Seller)
|
||
| |
|
|
| By: | ||
|
|
||
|
Name:
|
||
|
|
||
|
Title:
|
[Assistant] Secretary | |
-3-
EXHIBIT
2
[FORM
OF
OPINION OF COUNSEL TO THE SELLER]
______________________________
(Date)
Greenwich
Capital Financial Products, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
|
Re:
|
Master
Mortgage Loan Purchase and Servicing Agreement, dated as of December
1,
2005
|
Gentlemen:
I
have
acted as counsel to Xxxxxx Savings and Loan Association, F.A., a
_________________ (the “Seller”), in connection with the sale of certain
mortgage loans by the Seller to Greenwich Capital Financial Products, Inc.
(the
“Purchaser”) pursuant to (i) a Master Mortgage Loan Purchase and Servicing
Agreement, dated as of December 1, 2005, between the Seller and the Purchaser
(the “Purchase Agreement”), the Custodial Agreement, dated as of _____________,
among the Seller, the Purchaser, and _________________ (the “Custodial
Agreement”) [and the Confirmation, dated __________, 200_, between the Seller
and the Purchaser (the “Confirmation”)]. Capitalized terms not otherwise defined
herein have the meanings set forth in the Purchase Agreement.
In
connection with rendering this opinion letter, I, or attorneys working under
my
direction, have examined, among other things, originals, certified copies or
copies otherwise identified to my satisfaction as being true copies of the
following:
|
A.
|
The
Purchase Agreement;
|
|
B.
|
[The
Confirmation;]
|
|
C.
|
The
Custodial Agreement;
|
|
D.
|
The
Seller's charter and formation documents, as amended to date;
and
|
|
E.
|
Resolutions
adopted by the Board of Directors of the Seller with specific reference
to
actions relating to the transactions covered by this opinion (the
“Board
Resolutions”).
|
For
the
purpose of rendering this opinion, I have made such documentary, factual and
legal examinations as I deemed necessary under the circumstances. As to factual
matters, I have relied upon statements, certificates and other assurances of
public officials and of officers and other representatives of the Seller, and
upon such other certificates as I deemed appropriate, which factual matters
have
not been independently established or verified by me. I have also assumed,
among
other things, the genuineness of all signatures, the legal capacity of all
natural persons, the authenticity of all documents submitted to me as originals,
and the conformity to original documents of all documents submitted to me as
copies and the authenticity of the originals of such copied
documents.
On
the
basis of and subject to the foregoing examination, and in reliance thereon,
and
subject to the assumptions, qualifications, exceptions and limitations expressed
herein, I am of the opinion that:
1. The
Seller has been duly [incorporated][formed] and is validly existing and in
good
standing under the laws of the United States with corporate power and authority
to own its properties and conduct its business as presently conducted by it.
The
Seller has the corporate power and authority to service the Mortgage Loans,
and
to execute, deliver, and perform its obligations under the Purchase Agreement,
the Custodial Agreement [and the Confirmation] (sometimes collectively, the
“Agreements”).
2. The
Purchase Agreement, the Custodial Agreement [and the Confirmation] have been
duly and validly authorized, executed and delivered by the Seller.
3. The
Purchase Agreement, the Custodial Agreement [and the Confirmation] constitute
valid, legal and binding obligations of the Seller, enforceable against the
Seller in accordance with their respective terms.
4. To
the
best of my knowledge, no consent, approval, authorization or order of any state
or federal court or government agency or body is required for the execution,
delivery and performance by the Seller of the Purchase Agreement, the Custodial
Agreement [and the Confirmation], or the consummation of the transactions
contemplated by the Purchase Agreement, the Custodial Agreement [and the
Confirmation], except for those consents, approvals, authorizations or orders
which previously have been obtained.
5. Neither
the servicing of the Mortgage Loans by the Seller as provided in the Purchase
Agreement [and the Confirmation,] nor the fulfillment of the terms of or the
consummation of any other transactions contemplated in the Purchase Agreement,
the Custodial Agreement [and the Confirmation] will result in a breach of any
term or provision of the organizational documents of the Seller, or, to the
best
of my knowledge, will conflict with, result in a breach or violation of, or
constitute a default under, (i) the terms of any indenture or other agreement
or
instrument known to me to which the Seller is a party or by which it is bound,
(ii) any state or federal statute or regulation applicable to the Seller, or
(iii) any order of any state or federal court, regulatory body, administrative
agency or governmental body having jurisdiction over the Seller, except in
any
such case where the default, breach or violation would not have a material
adverse effect on the Seller or its ability to perform its obligations under
the
Purchase Agreement and the Custodial Agreement.
6. There
is
no action, suit, proceeding or investigation of which the Seller has received
notice or, to the best of my knowledge, threatened against the Seller which,
in
my judgment, either in any one instance or in the aggregate, would draw into
question the validity of the Purchase Agreement or the Custodial Agreement
or
which would be likely to impair materially the ability of the Seller to perform
under the terms of the Purchase Agreement or the Custodial
Agreement.
-2-
7. The
sale
of each Mortgage Note and Mortgage as and in the manner contemplated by the
Purchase Agreement is sufficient fully to transfer to the Purchaser all right,
title and interest of the Seller thereto as noteholder and
mortgagee.
8. The
Assignments of Mortgage are in recordable form and upon completion will be
acceptable for recording under the laws of the State of ___________. When
endorsed, as provided in the Custodial Agreement, the Mortgage Notes will be
duly endorsed under ______________ law.
The
opinions above are subject to the following additional assumptions, exceptions,
qualifications and limitations:
A. I
have
assumed that all parties to the Agreements other than the Seller have all
requisite power and authority to execute, deliver and perform their respective
obligations under each of the Agreements, and that the Agreements have been
duly
authorized by all necessary corporate action on the part of such parties, have
been executed and delivered by such parties and constitute the legal, valid
and
binding obligations of such parties.
B. My
opinion expressed in paragraphs 3 and 7 above is subject to the qualifications
that (i) the enforceability of the Agreements may be limited by the effect
of
laws relating to (1) bankruptcy, reorganization, insolvency, moratorium or
other
similar laws now or hereafter in effect relating to creditors' rights generally,
including, without limitation, the effect of statutory or other laws regarding
fraudulent conveyances or preferential transfers, and (2) general principles
of
equity upon the specific enforceability of any of the remedies, covenants or
other provisions of the Agreements and upon the availability of injunctive
relief or other equitable remedies and the application of principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) as such principles relate to, limit or affect the enforcement
of creditors' rights generally and the discretion of the court before which
any
proceeding for such enforcement may be brought; and (ii) I express no opinion
herein with respect to the validity, legality, binding effect or enforceability
of (a) provisions for indemnification in the Agreements to the extent such
provisions may be held to be unenforceable as contrary to public policy or
(b)
Section 19 of the Purchase Agreement.
C. I
have
assumed, without independent check or certification, that there are no
agreements or understandings among the Seller, the Purchaser and any other
party
which would expand, modify or otherwise affect the terms of the documents
described herein or the respective rights or obligations of the parties
thereunder.
I
am
admitted to practice in the State of ___________, and I render no opinion herein
as to matters involving the laws of any jurisdiction other than the State of
_________ and the Federal laws of the United States of America.
Very
truly yours,
-3-
EXHIBIT
3
SECURITY
RELEASE CERTIFICATION
I. Release
of Security Interest
___________________________,
hereby relinquishes any and all right, title and interest it may have in and
to
the Mortgage Loans described in Exhibit A attached hereto upon purchase thereof
by Greenwich Capital Financial Products, Inc. from the Seller named below
pursuant to that certain Master Mortgage Loan Purchase and Servicing Agreement,
dated as of December 1, 2005, as of the date and time of receipt by
______________________________ of $__________ for such Mortgage Loans (the
“Date
and Time of Sale”), and certifies that all notes, mortgages, assignments and
other documents in its possession relating to such Mortgage Loans have been
delivered and released to the Seller named below or its designees as of the
Date
and Time of Sale.
|
Name
and Address of Financial
Institution
|
|
(Name)
(Address)
|
|
|
By:______________________________________
|
II. Certification
of Release
The
Seller named below hereby certifies to Greenwich Capital Financial Products,
Inc. that, as of the Date and Time of Sale of the above mentioned Mortgage
Loans
to Greenwich Capital Financial Products, Inc., the security interests in the
Mortgage Loans released by the above named corporation comprise all security
interests relating to or affecting any and all such Mortgage Loans. The Seller
warrants that, as of such time, there are and will be no other security
interests affecting any or all of such Mortgage Loans.
|
Seller
|
||
| |
|
|
| By: | ||
|
|
||
| Name: | ||
|
|
||
|
Title:
|
||
|
|
||
-2-
EXHIBIT
4
ASSIGNMENT
AND CONVEYANCE
On
this
_______ day of ________, 200_, XXXXXX SAVINGS AND LOAN ASSOCIATION, F.A.
(“Seller”) as the Seller under that certain Master Mortgage Loan Purchase and
Servicing Agreement, dated as of December 1, 2005 (the “Agreement”) does hereby
sell, transfer, assign, set over and convey to Greenwich Capital Financial
Products, Inc. as Purchaser under the Agreement, without recourse, but subject
to the terms of the Agreement, all rights, title and interest of the Seller
in
and to the Mortgage Loans listed on the Mortgage Loan Schedule attached hereto,
together with the related Mortgage Files and all rights and obligations arising
under the documents contained therein including the right to any Prepayment
Charges payable with respect thereto. Pursuant to Subsection 6.03 of the
Agreement, the Seller has delivered to the Custodian the documents for each
Mortgage Loan to be purchased as set forth in the Custodial Agreement. The
contents of each related Servicing File required to be retained by the Seller
to
service the Mortgage Loans pursuant to the Agreement and thus not delivered
to
the Purchaser are and shall be held in trust by the Seller for the benefit
of
the Purchaser as the owner thereof. The Seller's possession of any portion
of
each such Servicing File is at the will of the Purchaser for the sole purpose
of
facilitating servicing of the related Mortgage Loan pursuant to the Agreement,
and such retention and possession by the Seller shall be in a custodial capacity
only. The ownership of each Mortgage Note, Mortgage, and the contents of the
Mortgage File and Servicing File is vested in the Purchaser and the ownership
of
all records and documents with respect to the related Mortgage Loan prepared
by
or which come into the possession of the Seller shall immediately vest in the
Purchaser and shall be retained and maintained, in trust, by the Seller at
the
will of the Purchaser in such custodial capacity only.
The
Seller confirms to the Purchaser that the representation and warranties set
forth in Subsections 7.01 and 7.02 of the Agreement are true and correct with
respect to the Seller and the Mortgage Loans listed on the Mortgage Loan
Schedule attached hereto as of the date hereof, and that all statements made
in
the Seller’s Officer’s Certificates and all Attachments thereto remain complete,
true and correct in all respects as of the date hereof, and that the Mortgage
Loan characteristics identified on the attached Schedule are true and correct
as
of the date hereof.
Capitalized
terms used herein and not otherwise defined shall have the meanings set forth
in
the Agreement.
|
XXXXXX
SAVINGS AND LOAN
ASSOCIATION,
F.A.
Seller
|
||
| |
|
|
| By: | ||
|
|
||
|
Name:
|
||
|
|
||
|
Title:
|
||
|
|
||
EXHIBIT
5
CONTENTS
OF EACH MORTGAGE FILE
With
respect to each Mortgage Loan, the Mortgage File shall include each of the
following items, which shall be available for inspection by the Purchaser and
which shall be retained by the Seller or delivered to the
Custodian:
|
1.
|
Copies
of the Mortgage Loan Documents.
|
|
2.
|
Residential
loan application.
|
|
3.
|
Mortgage
Loan closing statement.
|
|
4.
|
Verification
of employment and income, if
applicable.
|
|
5.
|
Verification
of acceptable evidence of source and amount of downpayment, if
applicable.
|
|
6.
|
Credit
report on Mortgagor.
|
|
7.
|
Residential
appraisal report.
|
|
8.
|
Photograph
of the Mortgaged Property.
|
|
9.
|
Survey
of the Mortgaged Property, or comparable
document.
|
|
10.
|
Copy
of each instrument necessary to complete identification of any exception
set forth in the exception schedule in the title policy, i.e., map
or
plat, restrictions, easements, sewer agreements, home association
declarations, etc.
|
|
11.
|
All
required disclosure statements.
|
|
12.
|
If
available, termite report, structural engineer's report, water potability
and septic certification.
|
|
13.
|
Sales
Contract, if applicable.
|
|
14.
|
Hazard
insurance policy.
|
|
15.
|
Flood
Insurance policy, if applicable.
|
|
16.
|
Tax
Service Contract.
|
|
17.
|
Flood
Service Contract.
|
|
18.
|
Tax
receipts, insurance premium receipts, ledger sheets, payment history
from
date of origination, insurance claim files, correspondence, current
and
historical computerized data files, and all other processing, underwriting
and closing papers and records which are customarily contained in
a
mortgage loan file and which are required to document the Mortgage
Loan or
to service the Mortgage Loan.
|
|
19.
|
Amortization
schedule, if available.
|
|
20.
|
Payment
history for Mortgage Loans that have been closed for more than 90
days.
|
-2-
EXHIBIT
6
MORTGAGE
LOAN DOCUMENTS
|
(a)
|
the
original Mortgage Note bearing all intervening endorsements necessary
to
show a complete chain of endorsements from the original payee to
the
applicable Seller, endorsed in blank, "Pay to the order of _____________,
without recourse", and, if previously endorsed, signed in the name
of the
last endorsee by a duly qualified officer of the last endorsee. If
the
Mortgage Loan was acquired by the last endorsee in a merger, the
endorsement shall be by "[name of last endorsee], successor by merger
to
[name of predecessor]". If the Mortgage Loan was acquired or originated
by
the last endorsee while doing business under another name, the endorsement
shall be by "[name of last endorsee], formerly known as [previous
name]";
|
|
(b)
|
with
respect to each Mortgage Loan which is not a MERS Mortgage Loan,
the
original Assignment of Mortgage for each Mortgage Loan, in form and
substance acceptable for recording. The Mortgage shall be assigned,
with
assignee's name left blank. If the Mortgage Loan was acquired by
the last
assignee in a merger, the Assignment of Mortgage shall be made by
"[name
of last assignee], successor by merger to [name of predecessor]".
If the
Mortgage Loan was acquired or originated by the last assignee while
doing
business under another name, the Assignment of Mortgage shall be
by "[name
of last assignee], formerly known as [previous
name];
|
|
(c)
|
the original of each guarantee executed in connection with the Mortgage Note, if any; |
|
(d)
|
for
each Mortgage Loan which is not a MERS Mortgage Loan, the original
recorded Mortgage with evidence of recording thereon, and in the
case of
each MERS Mortgage Loan, the original Mortgage, with the MIN for
that
Mortgage Loan and either language indicating that the Mortgage Loan
is a
MOM Loan if the Mortgage Loan is a MOM Loan, or if such Mortgage
Loan was
not a MOM Loan at origination, the original Mortgage and the assignment
to
MERS, with evidence of recording thereon. If in connection with any
Mortgage Loan, the applicable Seller has not delivered or caused
to be
delivered the original Mortgage with evidence of recording thereon
on or
prior to the related Closing Date because of a delay caused by the
public
recording office where such Mortgage has been delivered for recordation
or
because such Mortgage has been lost or because such public recording
office retains the original recorded Mortgage, the applicable Seller
shall
deliver or cause to be delivered to the Custodian, (i) in the case
of a
delay caused by the public recording office, a copy of such Mortgage
certified by the applicable Seller, escrow agent, title insurer or
closing
attorney to be a true and complete copy of the original recorded
Mortgage
and (ii) in the case where a public recording office retains the
original
recorded Mortgage or in the case where a Mortgage is lost after
recordation in a public recording office, a copy of such Mortgage
certified by such public recording office to be a true and complete
copy
of the original recorded Mortgage;
|
|
(e)
|
originals of each assumption, modification, consolidation or extension agreement, if any; |
|
(f)
|
except
in the event that the original Mortgage is made to MERS, the originals
of
all intervening assignments of mortgage with evidence of recording
thereon
evidencing a complete chain of ownership from the originator of the
Mortgage Loan to the last assignee (or to MERS, if the Mortgage Loan
is
registered on the MERS System), or if any such intervening assignment
of
mortgage has not been returned from the applicable public recording
office
or has been lost or if such public recording office retains the original
recorded intervening assignments of mortgage, a photocopy of such
intervening assignment of mortgage, together with (i) in the case
of a
delay caused by the public recording office, an Officer’s Certificate of
the applicable Seller, escrow agent, closing attorney or the title
insurer
insuring the Mortgage stating that such intervening assignment of
mortgage
has been delivered to the appropriate public recording office for
recordation and that such original recorded intervening assignment
of
mortgage or a copy of such intervening assignment of mortgage certified
by
the appropriate public recording office to be a true and complete
copy of
the original recorded intervening assignment of mortgage will be
promptly
delivered to the Custodian upon receipt thereof by the party delivering
the Officer’s Certificate or by the applicable Seller; or (ii) in the case
of an intervening assignment of mortgage where a public recording
office
retains the original recorded intervening assignment of mortgage
or in the
case where an intervening assignment of mortgage is lost after recordation
in a public recording office, a copy of such intervening assignment
of
mortgage with recording information thereon certified by such public
recording office to be a true and complete copy of the original recorded
intervening assignment of mortgage;
|
|
(g)
|
if
the Mortgage Note, the Mortgage, any Assignment of Mortgage or any
other
related document has been signed by a Person on behalf of the Mortgagor,
the original power of attorney or other instrument that authorized
and
empowered such Person to sign;
|
|
(h)
|
the
original lender's title insurance policy (or a marked title insurance
commitment, in the event that an original lender’s title insurance policy
has not yet been issued) in the form of an ALTA mortgage title insurance
policy, containing each of the endorsements required by Xxxxxx Xxx
and
insuring the Purchaser and its successors and assigns as to the first
or
secured priority lien of the Mortgage in the original principal amount
of
the Mortgage Loan; and
|
|
(i)
|
the
original of any security agreement, chattel mortgage or equivalent
document executed in connection with the Mortgage, if
any.
|
-2-
EXHIBIT
7
CUSTODIAL
ACCOUNT LETTER AGREEMENT
____________
__, 200_
To:
__________________________________
(the
“Depository”)
As
Seller
under the Master Mortgage Loan Purchase and Servicing Agreement, dated as of
December 1, 2005, we hereby authorize and request you to establish an account,
as a Custodial Account, to be designated as “Xxxxxx Savings and Loan
Association, F.A. in trust for the Purchaser and various Mortgagors, Fixed
and
Adjustable Rate Mortgage Loans.” All deposits in the account shall be subject to
withdrawal therefrom by order signed by the Seller. You may refuse any deposit
which would result in violation of the requirement that the account be fully
insured as described below. This letter is submitted to you in duplicate. Please
execute and return one original to us.
|
XXXXXX SAVINGS AND LOAN
ASSOCIATION, F.A.
(Seller)
|
||
| |
|
|
| By: | ||
|
|
||
|
Name:
|
||
|
|
||
|
Title:
|
||
|
|
||
|
Date:
|
|
|
The
undersigned, as Depository, hereby certifies that the above-described account
has been established under Account Number ___________ at the office of the
Depository indicated above, and agrees to honor withdrawals on such account
as
provided above. The full amount deposited at any time in the account will be
insured by the Federal Deposit Insurance Corporation through the Bank Insurance
Fund (“BIF”) or the Savings Association Insurance Fund (“SAIF”) up to the
applicable limits of such insurance.
|
(Depository)
|
||
| |
|
|
| By: | ||
|
|
||
|
Name:
|
||
|
|
||
|
Title:
|
||
|
|
||
|
Date:
|
|
|
-2-
EXHIBIT
8
ESCROW
ACCOUNT LETTER AGREEMENT
____________
__, 200_
To:
__________________________________
(the
“Depository”)
As
Seller
under the Master Mortgage Loan Purchase and Servicing Agreement, dated as of
December 1, 2005, we hereby authorize and request you to establish an account,
as an Escrow Account, to be designated as “Xxxxxx Savings and Loan Association,
F.A. in trust for the Purchaser and various Mortgagors, Fixed and Adjustable
Rate Mortgage Loans.” All deposits in the account shall be subject to withdrawal
therefrom by order signed by the Seller. You may refuse any deposit which would
result in violation of the requirement that the account be fully insured as
described below. This letter is submitted to you in duplicate. Please execute
and return one original to us.
|
XXXXXX
SAVINGS AND LOAN
ASSOCIATION,
F.A.
(Seller)
|
||
| |
|
|
| By: | ||
|
|
||
|
Name:
|
||
|
|
||
|
Title:
|
||
|
|
||
|
Date:
|
|
|
The
undersigned, as Depository, hereby certifies that the above-described account
has been established under Account Number ___________ at the office of the
Depository indicated above, and agrees to honor withdrawals on such account
as
provided above. The full amount deposited at any time in the account will be
insured by the Federal Deposit Insurance Corporation through the Bank Insurance
Fund (“BIF”) or the Savings Association Insurance Fund (“SAIF”) up to the
applicable limits of such insurance.
|
(Depository)
|
||
| |
|
|
| By: | ||
|
|
||
|
Name:
|
||
|
|
||
|
Title:
|
||
|
|
||
|
Date:
|
|
|
-2-
EXHIBIT
9
SERVICING
ADDENDUM
Subsection
11.01 Seller
to
Act as Servicer.
The
Seller, as independent contract servicer, shall service and administer the
Mortgage Loans in accordance with Accepted Servicing Practices and this
Agreement and shall have full power and authority, acting alone, to do or cause
to be done any and all things in connection with such servicing and
administration which the Seller may deem necessary or desirable and consistent
with the terms of this Agreement.
Consistent
with the terms of this Agreement, the Seller may waive, modify or vary any
term
of any Mortgage Loan or consent to the postponement of strict compliance with
any such term or in any manner grant indulgence to any Mortgagor if in the
Seller's reasonable and prudent determination such waiver, modification,
postponement or indulgence is not materially adverse to the Purchaser; provided,
however, that the Seller shall not permit any modification with respect to
any
Mortgage Loan that would change the Mortgage Interest Rate, defer or forgive
the
payment thereof or of any principal or interest payments, reduce the outstanding
principal amount (except for actual payments of principal), make additional
advances of additional principal or extend the final maturity date on such
Mortgage Loan. Without limiting the generality of the foregoing, the Seller
shall continue, and is hereby authorized and empowered, to execute and deliver
on behalf of itself, and the Purchaser, all instruments of satisfaction or
cancellation, or of partial or full release, discharge and all other comparable
instruments, with respect to the Mortgage Loans and with respect to the
Mortgaged Property. If reasonably required by the Seller, the Purchaser shall
furnish the Seller with any powers of attorney and other documents necessary
or
appropriate to enable the Seller to carry out its servicing and administrative
duties under this Agreement.
The
Seller shall notify MERS of the ownership interest of the Purchaser in each
MOM
Loan through the MORNET system or MIDANET system, as applicable, or any other
comparable system acceptable to MERS. At any time during the term of this
Agreement, the Purchaser may direct the Seller to cause any MOM Loan to be
deactivated from the MERS System.
In
servicing and administering the Mortgage Loans, the Seller shall employ
procedures including collection procedures and exercise the same care that
it
customarily employs and exercises in servicing and administering mortgage loans
for its own account giving due consideration to accepted mortgage servicing
practices of prudent lending institutions and the Purchaser's reliance on the
Seller.
The
Seller will furnish, with respect to each Mortgage Loan, in accordance with
the
Fair Credit Reporting Act and its implementing regulations, accurate and
complete information on its borrower credit files to Equifax, Experian, and
Trans Union Credit Information Company, on a monthly basis.
Subsection
11.02 Collection
of Mortgage Loan Payments.
Continuously
from the date hereof until the principal and interest on all Mortgage Loans
are
paid in full, the Seller shall proceed diligently to collect all payments due
under each Mortgage Loan when the same shall become due and payable and shall,
to the extent such procedures shall be consistent with this Agreement and the
terms and provisions of any related Primary Insurance Policy or LPMI Policy,
follow such collection procedures as it follows with respect to mortgage loans
comparable to the Mortgage Loans and held for its own account. Further, the
Seller shall take special care in ascertaining and estimating annual ground
rents, taxes, assessments, water rates, fire and hazard insurance premiums,
mortgage insurance premiums, and all other charges that, as provided in the
Mortgage, will become due and payable to the end that the installments payable
by the Mortgagors will be sufficient to pay such charges as and when they become
due and payable.
The
Seller shall not waive any Prepayment Charge with respect to any Mortgage Loan
which contains a Prepayment Charge which prepays during the term of the charge.
If the Seller fails to collect the Prepayment Charge upon any prepayment of
any
Mortgage Loan which contains a Prepayment Charge, the Seller shall pay the
Purchaser at such time (by deposit to the Custodial Account) an amount equal
to
amount of the Prepayment Charge which was not collected. Notwithstanding the
above, the Seller may waive (and shall waive, in the case of (v) below) a
Prepayment Charge without paying the Purchaser the amount of the Prepayment
Charge (i) if the Mortgage Loan is in default (defined as 61 days or more
delinquent) and such waiver would maximize recovery of total proceeds taking
into account the value of such Prepayment Charge and the related Mortgage Loan,
(ii) if the prepayment is not a result of a refinancing by the Seller or any
of
its affiliates and the Mortgage Loan is foreseen to be in default and such
waiver would maximize recovery of total proceeds taking into account the value
of such Prepayment Charge and the related Mortgage Loan, (iii) if the collection
of the Prepayment Charge would be in violation of applicable laws, (iv) if
the
collection of such Prepayment Charge would be considered “predatory” pursuant to
written guidance published or issued by any applicable federal, state or local
regulatory authority acting in its official capacity and having jurisdiction
over such matters and (v) notwithstanding any state or federal law to the
contrary, any instance when a Mortgage Loan is in foreclosure. The Seller hereby
acknowledges that for the purposes of the preceding sentence, (i) the law
applicable to the enforcement of prepayment penalties and charges is the law
applicable to the related originator of the Mortgage Loans and (ii) state laws
prohibiting or limiting prepayment penalties or charges are preempted and
thereby inapplicable if the related originator of the mortgage loans is a
federal association or federal bank or an operating subsidiary of such
institution. In the event the Seller determines that (i) the foregoing
acknowledgement is no longer accurate and (ii) applicable state law would
prevent it from fully enforcing prepayment penalties or charges, the Seller
shall (i) provide prompt notice to such effect to the Purchaser and (ii) provide
a written opinion of counsel from a nationally recognized law firm experienced
in regulatory matters concluding that fully enforcing prepayment penalties
or
charges would violate applicable law.
Subsection
11.03 Realization
Upon Defaulted Mortgage Loans.
(a) The
Seller shall use its best efforts, consistent with the procedures that the
Seller would use in servicing loans for its own account, to foreclose upon
or
otherwise comparably convert the ownership of such Mortgaged Properties as
come
into and continue in default and as to which no satisfactory arrangements can
be
made for collection of delinquent payments pursuant to Subsection 11.01.
The Seller shall use its best efforts to realize upon defaulted Mortgage Loans
in such a manner as will maximize the receipt of principal and interest by
the
Purchaser, taking into account, among other things, the timing of foreclosure
proceedings. The foregoing is subject to the provisions that, in any case in
which Mortgaged Property shall have suffered damage, the Seller shall not be
required to expend its own funds toward the restoration of such property in
excess of $2,000 unless it shall determine in its discretion (i) that such
restoration will increase the proceeds of liquidation of the related Mortgage
Loan to Purchaser after reimbursement to itself for such expenses, and (ii)
that
such expenses will be recoverable by the Seller through Insurance Proceeds
or
Liquidation Proceeds from the related Mortgaged Property, as contemplated in
Subsection 11.05. In the event that any payment due under any Mortgage Loan
is not paid when the same becomes due and payable, or in the event the Mortgagor
fails to perform any other covenant or obligation under the Mortgage Loan and
such failure continues beyond any applicable grace period, the Seller shall
take
such action as it shall deem to be in the best interest of the Purchaser. In
the
event that any payment due under any Mortgage Loan remains delinquent for a
period of ninety (90) days or more, the Seller shall commence foreclosure
proceedings, provided that prior to commencing foreclosure proceedings, the
Seller shall notify the Purchaser in writing of the Seller's intention to do
so,
and the Seller shall not commence foreclosure proceedings if the Purchaser
objects to such action within ten (10) Business Days of receiving such notice.
In such connection, the Seller shall be responsible for all costs and expenses
incurred by it in any such proceedings; provided, however, that it shall be
entitled to reimbursement thereof from the related Mortgaged Property, as
contemplated in Subsection 11.05.
-2-
(b) Notwithstanding
the foregoing provisions of this Subsection 11.03, with respect to any
Mortgage Loan as to which the Seller has received actual notice of, or has
actual knowledge of, the presence of any toxic or hazardous substance on the
related Mortgaged Property the Seller shall not either (i) obtain title to
such
Mortgaged Property as a result of or in lieu of foreclosure or otherwise, or
(ii) otherwise acquire possession of, or take any other action, with respect
to,
such Mortgaged Property if, as a result of any such action, the Purchaser would
be considered to hold title to, to be a mortgagee-in-possession of, or to be
an
owner or operator of such Mortgaged Property within the meaning of the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as
amended from time to time, or any comparable law, unless the Seller has also
previously determined, based on its reasonable judgment and a prudent report
prepared by a Person who regularly conducts environmental audits using customary
industry standards, that:
(1) such
Mortgaged Property is in compliance with applicable environmental laws or,
if
not, that it would be in the best economic interest of the Purchaser to take
such actions as are necessary to bring the Mortgaged Property into compliance
therewith; and
(2) there
are
no circumstances present at such Mortgaged Property relating to the use,
management or disposal of any hazardous substances, hazardous materials,
hazardous wastes, or petroleum-based materials for which investigation, testing,
monitoring, containment, clean-up or remediation could be required under any
federal, state or local law or regulation, or that if any such materials are
present for which such action could be required, that it would be in the best
economic interest of the Purchaser to take such actions with respect to the
affected Mortgaged Property.
-3-
The
cost
of the environmental audit report contemplated by this Subsection 11.03
shall be advanced by the Seller, subject to the Seller's right to be reimbursed
therefor from the Custodial Account as provided in
Subsection 11.05(vi).
If
the
Seller determines, as described above, that it is in the best economic interest
of the Purchaser to take such actions as are necessary to bring any such
Mortgaged Property into compliance with applicable environmental laws, or to
take such action with respect to the containment, clean-up or remediation of
hazardous substances, hazardous materials, hazardous wastes, or petroleum-based
materials affecting any such Mortgaged Property, then the Seller shall take
such
action as it deems to be in the best economic interest of the Purchaser. The
cost of any such compliance, containment, cleanup or remediation shall be
advanced by the Seller, subject to the Seller's right to be reimbursed therefor
from the Custodial Account as provided in
Subsection 11.05(vi).
(c) Proceeds
received in connection with any Final Recovery Determination, as well as any
recovery resulting from a partial collection of Insurance Proceeds or
Liquidation Proceeds in respect of any Mortgage Loan, will be applied in the
following order of priority: first,
to
reimburse the Seller for any related unreimbursed Servicing Advances, pursuant
to Subsection 11.05(iii); second,
to
accrued and unpaid interest on the Mortgage Loan, to the date of the Final
Recovery Determination, or to the Due Date prior to the Distribution Date on
which such amounts are to be distributed if not in connection with a Final
Recovery Determination; and third,
as a
recovery of principal of the Mortgage Loan. If the amount of the recovery so
allocated to interest is less than the full amount of accrued and unpaid
interest due on such Mortgage Loan, the amount of such recovery will be
allocated by the Seller as follows: first,
to
unpaid Servicing Fees; and second,
to the
balance of the interest then due and owing. The portion of the recovery so
allocated to unpaid Servicing Fees shall be reimbursed to the Seller pursuant
to
Subsection 11.05(iv).
Subsection
11.04 Establishment
of Custodial Accounts; Deposits in Custodial Accounts.
The
Seller shall segregate and hold all funds collected and received pursuant to
each Mortgage Loan separate and apart from any of its own funds and general
assets and shall establish and maintain one or more Custodial Accounts, in
the
form of time deposit or demand accounts. The creation of any Custodial Account
shall be evidenced by a Custodial Account Letter Agreement in the form of
Exhibit 7.
The
Seller shall deposit in the Custodial Account on a daily basis, and retain
therein the following payments and collections received by it subsequent to
the
Cut-off Date, or received by it prior to the Cut-off Date but allocable to
a
period subsequent thereto, other than in respect of principal and interest
on
the Mortgage Loans due on or before the Cut-off Date:
(i) all
payments on account of principal on the Mortgage Loans;
-4-
(ii) all
payments on account of interest on the Mortgage Loans;
(iii) all
Liquidation Proceeds;
(iv) all
Insurance Proceeds including amounts required to be deposited pursuant to
Subsections 11.10 and 11.11, other than proceeds to be held in the Escrow
Account and applied to the restoration or repair of the Mortgaged Property
or
released to the Mortgagor in accordance with the Seller's normal servicing
procedures, the loan documents or applicable law, and all proceeds under any
Primary Mortgage Insurance Policy or LPMI Policy;
(v) all
Condemnation Proceeds affecting any Mortgaged Property which are not released
to
the Mortgagor in accordance with the Seller's normal servicing procedures,
the
loan documents or applicable law;
(vi) all
Monthly Advances;
(vii) all
proceeds of any Mortgage Loan repurchased in accordance with Subsections 7.03
and 7.04 and all amounts required to be deposited by the Seller in connection
with shortfalls in principal amount of Qualified Substitute Mortgage Loans
pursuant to Subsection 7.03;
(viii) any
amounts required to be deposited by the Seller pursuant to Subsection 11.11
in connection with the deductible clause in any blanket hazard insurance policy.
Such deposit shall be made from the Seller's own funds, without reimbursement
therefor;
(ix) any
amounts required to be deposited by the Seller in connection with any REO
Property pursuant to Subsection 11.13;
(x) any
amounts required to be deposited in the Custodial Account pursuant to
Subsections 11.19 or 11.20; and
(xi) with
respect to each Principal Prepayment in full, an amount (to be paid by the
Seller out of its own funds without reimbursement therefor) which, when added
to
all amounts allocable to interest received in connection with such Principal
Prepayment, equals one month's interest on the amount of principal so prepaid
at
the Mortgage Interest Rate, provided, however, that in no event shall the
aggregate of deposits made by the Seller pursuant to this clause (xi) exceed
the
aggregate amount of the Seller's servicing compensation in the calendar month
in
which such deposits are required.
The
foregoing requirements for deposit in the Custodial Account shall be exclusive,
it being understood and agreed that, without limiting the generality of the
foregoing, payments in the nature of late payment charges and assumption fees,
to the extent permitted by Subsection 11.01, need not be deposited by the
Seller in the Custodial Account. Such Custodial Account shall be an Eligible
Account. Any interest or earnings on funds deposited in the Custodial Account
by
the depository institution shall accrue to the benefit of the Seller and the
Seller shall be entitled to retain and withdraw such interest from the Custodial
Account pursuant to Subsection 11.05(iii). The Seller shall give notice to
the Purchaser of the location of the Custodial Account when established and
prior to any change thereof.
-5-
If
the
balance on deposit in the Custodial Account exceeds $75,000 as of the
commencement of business on any Business Day and the Custodial Account
constitutes an Eligible Account solely pursuant to clause (ii) of the definition
of Eligible Account, the Seller shall, on or before twelve o'clock noon Eastern
time on such Business Day, withdraw from the Custodial Account any and all
amounts payable to the Purchaser and remit such amounts to the Purchaser by
wire
transfer of immediately available funds.
Subsection
11.05 Permitted
Withdrawals From the Custodial Account.
The
Seller may, from time to time, withdraw from the Custodial Account for the
following purposes:
(i) to
make
distributions to the Purchaser in the amounts and in the manner provided for
in
Subsection 11.14;
(ii) to
reimburse itself for Monthly Advances, the Seller's right to reimburse itself
pursuant to this subclause (ii) being limited to amounts received on the related
Mortgage Loan which represent late collections (net of the related Servicing
Fees) respecting which any such advance was made it being understood that,
in
the case of such reimbursement, the Seller's right thereto shall be prior to
the
rights of Purchaser, except that, where the Seller is required to repurchase
a
Mortgage Loan, pursuant to Subsection 7.03 or 7.04, the Seller's right to
such reimbursement shall be subsequent to the payment to the Purchaser of the
Repurchase Price pursuant to Subsection 7.03 or 7.04, and all other amounts
required to be paid to the Purchaser with respect to such Mortgage
Loans;
(iii) to
reimburse itself for unreimbursed Servicing Advances, the Seller's right to
reimburse itself pursuant to this subclause (iii) with respect to any Mortgage
Loan being limited to related Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds and such other amounts as may be collected by the Seller
from
the Mortgagor or otherwise relating to the Mortgage Loan, it being understood
that, in the case of such reimbursement, the Seller's right thereto shall be
prior to the rights of the Purchaser, except that, where the Seller is required
to repurchase a Mortgage Loan, pursuant to Subsection 7.03 or 7.04, the
Seller's right to such reimbursement shall be subsequent to the payment to
the
Purchaser of the Repurchase Price pursuant to Subsection 7.03 or 7.04 and
all other amounts required to be paid to the Purchaser with respect to such
Mortgage Loans;
(iv) to
pay to
itself pursuant to Subsection 11.22 as servicing compensation (a) any
interest earned on funds in the Custodial Account (all such interest to be
withdrawn monthly not later than each Distribution Date), and (b) the Servicing
Fee from that portion of any payment or recovery as to interest on a particular
Mortgage Loan;
-6-
(v) to
pay to
itself with respect to each Mortgage Loan that has been repurchased pursuant
to
Subsection 7.03 or Subsection 7.04 all amounts received thereon and not
distributed as of the date on which the related Repurchase Price is
determined;
(vi) to
reimburse the Seller for any Monthly Advance previously made which the Seller
has determined to be a Nonrecoverable Monthly Advance;
(vii) to
withdraw any amount deposited therein in error;
(viii) to
pay,
or to reimburse the Seller for advances in respect of, expenses incurred in
connection with any Mortgage Loan pursuant to Subsection 11.03(b), but only
to the extent of amounts received in respect of the Mortgage Loans to which
such
expense is attributable; and
(ix) to
clear
and terminate the Custodial Account on the termination of this
Agreement.
The
Seller shall keep and maintain separate accounting, on a Mortgage Loan by
Mortgage Loan basis, for the purpose of justifying any withdrawal from the
Custodial Account pursuant to such subclauses (ii) - (viii) above. The Seller
shall provide written notification in the form of an Officers' Certificate
to
the Purchaser, on or prior to the next succeeding Distribution Date, upon making
any withdrawals from the Custodial Account pursuant to subclause (vi)
above.
Subsection
11.06 Establishment
of Escrow Accounts; Deposits in Escrow Accounts.
The
Seller shall segregate and hold all funds collected and received pursuant to
each Mortgage Loan which constitute Escrow Payments separate and apart from
any
of its own funds and general assets and shall establish and maintain one or
more
Escrow Accounts, in the form of time deposit or demand accounts. The creation
of
any Escrow Account shall be evidenced by Escrow Account Letter Agreement in
the
form of Exhibit 8.
The
Seller shall deposit in the Escrow Account or Accounts on a daily basis, and
retain therein, (i) all Escrow Payments collected on account of the Mortgage
Loans, for the purpose of effecting timely payment of any such items as required
under the terms of this Agreement, and (ii) all Insurance Proceeds which are
to
be applied to the restoration or repair of any Mortgaged Property. The Seller
shall make withdrawals therefrom only to effect such payments as are required
under this Agreement, and for such other purposes as shall be as set forth
or in
accordance with Subsection 11.08. The Seller shall be entitled to retain
any interest paid on funds deposited in the Escrow Account by the depository
institution other than interest on escrowed funds required by law to be paid
to
the Mortgagor and, to the extent required by law, the Seller shall pay interest
on escrowed funds to the Mortgagor notwithstanding that the Escrow Account
is
non-interest bearing or that interest paid thereon is insufficient for such
purposes.
-7-
Subsection
11.07 Permitted
Withdrawals From Escrow Account.
Withdrawals
from the Escrow Account may be made by the Seller (i) to effect timely payments
of ground rents, taxes, assessments, water rates, hazard insurance premiums,
Primary Insurance Policy premiums, if applicable, and comparable items, (ii)
to
reimburse the Seller for any Servicing Advance made by the Seller with respect
to a related Mortgage Loan but only from amounts received on the related
Mortgage Loan which represent late payments or collections of Escrow Payments
thereunder, (iii) to refund to the Mortgagor any funds as may be determined
to
be overages, (iv) for transfer to the Custodial Account in accordance with
the
terms of this Agreement, (v) for application to restoration or repair of the
Mortgaged Property, (vi) to pay to the Seller, or to the Mortgagor to the extent
required by law, any interest paid on the funds deposited in the Escrow Account,
(vii) to withdraw any amount deposited therein in error, or (viii) to clear
and
terminate the Escrow Account on the termination of this Agreement.
Subsection
11.08 Payment
of Taxes, Insurance and Other Charges; Maintenance of Primary Insurance Policies
and LPMI Policies; Collections Thereunder.
With
respect to each Mortgage Loan, the Seller shall maintain accurate records
reflecting the status of ground rents, taxes, assessments, water rates and
other
charges which are or may become a lien upon the Mortgaged Property and
the
status of Primary Insurance Policy and LPMI premiums and fire
and
hazard insurance coverage and shall obtain, from time to time, all bills for
the
payment of such charges, including insurance renewal premiums and shall effect
payment thereof prior to the applicable penalty or termination date and at
a
time appropriate for securing maximum discounts allowable, employing for such
purpose deposits of the Mortgagor in the Escrow Account which shall have been
estimated and accumulated by the Seller in amounts sufficient for such purposes,
as allowed under the terms of the Mortgage and applicable law. To the extent
that the Mortgage does not provide for Escrow Payments, the Seller shall
determine that any such payments are made by the Mortgagor at the time they
first become due. The Seller assumes full responsibility for the timely payment
of all such bills and shall effect timely payments of all such bills
irrespective of the Mortgagor’s faithful performance in the payment of same or
the making of the Escrow Payments and shall make advances from its own funds
to
effect such payments.
The
Seller shall maintain in full force and effect, a Primary Insurance Policy
or
LPMI Policy, issued by a Qualified Insurer, with respect to each Mortgage Loan
for which such coverage is required. Such coverage shall be maintained until
the
Loan-to-Value Ratio of the related Mortgage Loan is reduced to that amount
for
which Xxxxxx Xxx no longer requires such insurance to be maintained. The Seller
will not cancel or refuse to renew any Primary Insurance Policy or LPMI Policy
in effect on the Closing Date that is required to be kept in force under this
Agreement unless a replacement Primary Insurance Policy or LPMI Policy, as
the
case may be, for such cancelled or non- renewed policy is obtained from and
maintained with a Qualified Insurer. The Seller shall not take any action which
would result in non-coverage under any applicable Primary Insurance Policy
or
LPMI Policy of any loss which, but for the actions of the Seller, would have
been covered thereunder. In connection with any assumption or substitution
agreement entered into or to be entered into pursuant to Subsection 11.19,
the Seller shall promptly notify the insurer under the related Primary Insurance
Policy or LPMI Policy, if any, of such assumption or substitution of liability
in accordance with the terms of such policy and shall take all actions which
may
be required by such insurer as a condition to the continuation of coverage
under
the Primary Insurance Policy or LPMI Policy. If such Primary Insurance Policy
or
LPMI Policy is terminated as a result of such assumption or substitution of
liability, the Seller shall obtain a replacement Primary Insurance Policy or
LPMI Policy as provided above.
-8-
In
connection with its activities as servicer, the Seller agrees to prepare and
present, on behalf of itself, and the Purchaser, claims to the insurer under
any
Primary Insurance Policy or LPMI Policy in a timely fashion in accordance with
the terms of such policies and, in this regard, to take such action as shall
be
necessary to permit recovery under any Primary Insurance Policy or LPMI Policy
respecting a defaulted Mortgage Loan. Pursuant to Subsection 11.04, any
amounts collected by the Seller under any Primary Insurance Policy or LPMI
Policy shall be deposited in the Custodial Account, subject to withdrawal
pursuant to Subsection 11.05.
Subsection
11.09 Transfer
of Accounts.
The
Seller may transfer the Custodial Account or the Escrow Account to a different
depository institution from time to time. Such transfer shall be made only
upon
obtaining the consent of the Purchaser, which consent shall not be unreasonably
withheld. In any case, the Custodial Account and Escrow Account shall be
Eligible Accounts.
Subsection
11.10 Maintenance
of Hazard Insurance.
The
Seller shall cause to be maintained for each Mortgage Loan fire and hazard
insurance with extended coverage as is customary in the area where the Mortgaged
Property is located in an amount which is at least equal to the lesser of (i)
the amount necessary to fully compensate for any damage or loss to the
improvements which are a part of such property on a replacement cost basis
or
(ii) the sum of the outstanding principal balance of the Mortgage Loan
(including any cumulative related Negative Amortization) and the outstanding
principal balance of the related first lien mortgage loan, if applicable, in
each case in an amount not less than such amount as is necessary to prevent
the
Mortgagor and/or the Mortgagee from becoming a co-insurer. If the Mortgaged
Property is in an area identified on a Flood Hazard Boundary Map or Flood
Insurance Rate Map issued by the Flood Emergency Management Agency as having
special flood hazards and such flood insurance has been made available, the
Seller will cause to be maintained a flood insurance policy meeting the
requirements of the current guidelines of the Federal Insurance Administration
with a generally acceptable insurance carrier, in an amount representing
coverage not less than the lesser of (i) the outstanding principal balance
of
the Mortgage Loan (plus, if the Mortgage Loan provides for negative
amortization, the maximum amount of Negative Amortization in accordance with
the
Mortgage) or (ii) the maximum amount of insurance which is available under
the
National Flood Insurance Act of 1968 or the Flood Disaster Protection Act of
1973, as amended. The Seller also shall maintain on any REO Property, fire
and
hazard insurance with extended coverage in an amount which is at least equal
to
the lesser of (i) the maximum insurable value of the improvements which are
a
part of such property and (ii) the outstanding principal balance of the related
Mortgage Loan (including any cumulative related Negative Amortization) at the
time it became an REO Property, liability insurance and, to the extent required
and available under the National Flood Insurance Act of 1968 or the Flood
Disaster Protection Act of 1973, as amended, flood insurance in an amount as
provided above. Pursuant to Subsection 11.04, any amounts collected by the
Seller under any such policies other than amounts to be deposited in the Escrow
Account and applied to the restoration or repair of the Mortgaged Property
or
REO Property, or released to the Mortgagor in accordance with the Seller's
normal servicing procedures, shall be deposited in the Custodial Account,
subject to withdrawal pursuant to Subsection 11.05. Any cost incurred by the
Seller in maintaining any such insurance shall not, for the purpose of
calculating distributions to the Purchaser, be added to the unpaid principal
balance of the related Mortgage Loan, notwithstanding that the terms of such
Mortgage Loan so permit. It is understood and agreed that no earthquake or
other
additional insurance need be required by the Seller of the Mortgagor or
maintained on property acquired in respect of the Mortgage Loan, other than
pursuant to such applicable laws and regulations as shall at any time be in
force and as shall require such additional insurance. All such policies shall
be
endorsed with standard mortgagee clauses with loss payable to the Seller, or
upon request to the Purchaser, and shall provide for at least thirty (30) days
prior written notice of any cancellation, reduction in the amount of, or
material change in, coverage to the Seller. The Seller shall not interfere
with
the Mortgagor's freedom of choice in selecting either his insurance carrier
or
agent, provided, however, that the Seller shall not accept any such insurance
policies from insurance companies unless such companies are Qualified
Insurers.
-9-
Subsection
11.11 Maintenance
of Mortgage Impairment Insurance Policy.
In
the
event that the Seller shall obtain and maintain a mortgage impairment or blanket
policy issued by an issuer that has a rating in Best's Key Rating Guide of
A:VI
insuring against hazard losses on all of Mortgaged Properties securing the
Mortgage Loans, then, to the extent such policy provides coverage in an amount
equal to the amount required pursuant to Subsection 11.10 and otherwise complies
with all other requirements of Subsection 11.10, the Seller shall conclusively
be deemed to have satisfied its obligations as set forth in Subsection 11.10,
it
being understood and agreed that such policy may contain a deductible clause,
in
which case the Seller shall, in the event that there shall not have been
maintained on the related Mortgaged Property or REO Property a policy complying
with Subsection 11.10, and there shall have been one or more losses which would
have been covered by such policy, deposit in the Custodial Account the amount
not otherwise payable under the blanket policy because of such deductible
clause. In connection with its activities as servicer of the Mortgage Loans,
the
Seller agrees to prepare and present, on behalf of the Purchaser, claims under
any such blanket policy in a timely fashion in accordance with the terms of
such
policy. Upon request of the Purchaser, the Seller shall cause to be delivered
to
the Purchaser a certified true copy of such policy and a statement from the
insurer thereunder that such policy shall in no event be terminated or
materially modified without thirty (30) days prior written notice to the
Purchaser.
Subsection
11.12 Fidelity
Bond, Errors and Omissions Insurance.
The
Seller shall maintain, at its own expense, a blanket fidelity bond and an errors
and omissions insurance policy, with broad coverage with responsible companies
that would meet the requirements of Xxxxxx Mae or Xxxxxxx Mac on all officers,
employees or other persons acting in any capacity with regard to the Mortgage
Loans to handle funds, money, documents and papers relating to the Mortgage
Loans. The fidelity bond and errors and omissions insurance shall be in the
form
of the Mortgage Banker's Blanket Bond and shall protect and insure the Seller
against losses, including forgery, theft, embezzlement, fraud, errors and
omissions and negligent acts of such persons. Such fidelity bond shall also
protect and insure the Seller against losses in connection with the failure
to
maintain any insurance policies required pursuant to this Agreement and the
release or satisfaction of a Mortgage Loan without having obtained payment
in
full of the indebtedness secured thereby. No provision of this Subsection 11.12
requiring the fidelity bond and errors and omissions insurance shall diminish
or
relieve the Seller from its duties and obligations as set forth in this
Agreement. The minimum coverage under any such bond and insurance policy shall
be at least equal to the corresponding amounts required by Xxxxxx Mae in the
Xxxxxx Xxx Servicing Guide or by Xxxxxxx Mac in the Xxxxxxx Xxx Xxxxxxx' and
Servicers' Guide. Upon request of the Purchaser, the Seller shall cause to
be
delivered to the Purchaser a certified true copy of the fidelity bond and
insurance policy and a statement from the surety and the insurer that such
fidelity bond or insurance policy shall in no event be terminated or materially
modified without thirty (30) days' prior written notice to the
Purchaser.
-10-
Subsection
11.13 Title,
Management and Disposition of REO Property.
In
the
event that title to the Mortgaged Property is acquired in foreclosure or by
deed
in lieu of foreclosure, the deed or certificate of sale shall be taken in the
name of the person designated by the Purchaser. Any Person or Persons holding
such title other than the Purchaser shall acknowledge in writing that such
title
is being held as nominee for the benefit of the Purchaser.
Unless
otherwise directed by the Purchaser, the Seller shall either itself or through
an agent selected by the Seller, manage, conserve, protect and operate each
REO
Property (and may temporarily rent the same) in the same manner that it manages,
conserves, protects and operates other foreclosed property for its own account,
and in the same manner that similar property in the same locality as the REO
Property is managed. If a REMIC election is or is to be made with respect to
the
arrangement under which the Mortgage Loans and any REO Property are held, the
Seller shall manage, conserve, protect and operate each REO Property in a manner
which does not cause such REO Property to fail to qualify as “foreclosure
property” within the meaning of Section 860G(a)(8) of the Code or result in
the receipt by such REMIC of any “income from non-permitted assets” within the
meaning of Section 860F(a)(2)(B) of the Code or any “net income from
foreclosure property” within the meaning of Section 860G(c)(2) of the Code.
The Seller shall cause each REO Property to be inspected promptly upon the
acquisition of title thereto and shall cause each REO Property to be inspected
at least annually thereafter. The Seller shall make or cause to be made a
written report of each such inspection. Such reports shall be retained in the
Mortgage File and copies thereof shall be forwarded by the Seller to the
Purchaser. The Seller shall use its best efforts to dispose of the REO Property
as soon as possible and shall sell such REO Property in any event within one
year after title has been taken to such REO Property, unless the Seller
determines, and gives appropriate notice to the Purchaser, that a longer period
is necessary for the orderly liquidation of such REO Property. If a period
longer than one year is necessary to sell any REO property, (i) the Seller
shall
report monthly to the Purchaser as to the progress being made in selling such
REO Property and (ii) if, with the written consent of the Purchaser, a purchase
money mortgage is taken in connection with such sale, such purchase money
mortgage shall name the Seller as mortgagee, and a separate servicing agreement
between the Seller and the Purchaser shall be entered into with respect to
such
purchase money mortgage. Notwithstanding the foregoing, if a REMIC election
is
made with respect to the arrangement under which the Mortgage Loans and the
REO
Property are held, such REO Property shall be disposed of before the close
of
the third taxable year following the taxable year in which the Mortgage Loan
became an REO Property, unless the Seller provides to the trustee under such
REMIC an opinion of counsel to the effect that the holding of such REO Property
subsequent to the close of the third taxable year following the taxable year
in
which the Mortgage Loan became an REO Property, will not result in the
imposition of taxes on "prohibited transactions" as defined in Section 860F
of
the Code, or cause the transaction to fail to qualify as a REMIC at any time
that certificates are outstanding. Seller shall manage, conserve, protect and
operate each such REO Property for the certificateholders solely for the purpose
of its prompt disposition and sale in a manner which does not cause such
property to fail to qualify as "foreclosure property" within the meaning of
Section 860F(a)(2)(E) of the Code, or any "net income from foreclosure property"
which is subject to taxation under the REMIC provisions of the Code. Pursuant
to
its efforts to sell such property, the Seller shall either itself or through
an
agent selected by Seller, protect and conserve such property in the same manner
and to such an extent as is customary in the locality where such property is
located. Additionally, Seller shall perform the tax withholding and reporting
related to Sections 1445 and 6050J of the Code.
-11-
With
respect to each REO Property, the Seller shall segregate and hold all funds
collected and received in connection with the operation of the REO Property
separate and apart from its own funds or general assets and shall establish
and
maintain a separate REO Account for each REO Property in the form of a
non-interest bearing demand account, unless an Opinion of Counsel is obtained
by
the Seller to the effect that the classification as a grantor trust or REMIC
for
federal income tax purposes of the arrangement under which the Mortgage Loans
and the REO Property is held will not be adversely affected by holding such
funds in another manner. Each REO Account shall be established with the Seller
or, with the prior consent of the Purchaser, with a commercial bank, a mutual
savings bank or a savings association. The creation of any REO Account shall
be
evidenced by a letter agreement substantially in the form of the Custodial
Account Letter Agreement attached as Exhibit 7 hereto. An original of such
letter agreement shall be furnished to any Purchaser upon request.
The
Seller shall deposit or cause to be deposited, on a daily basis in each REO
Account all revenues received with respect to the related REO Property and
shall
withdraw therefrom funds necessary for the proper operation, management and
maintenance of the REO Property, including the cost of maintaining any hazard
insurance pursuant to Subsection 11.10 hereof and the fees of any managing
agent
acting on behalf of the Seller. The Seller shall not be entitled to retain
interest paid or other earnings, if any, on funds deposited in such REO Account.
On or before each Determination Date, the Seller shall withdraw from each REO
Account and deposit into the Custodial Account the net income from the REO
Property on deposit in the REO Account.
The
Seller shall furnish to the Purchaser on each Distribution Date, an operating
statement for each REO Property covering the operation of each REO Property
for
the previous month. Such operating statement shall be accompanied by such other
information as the Purchaser shall reasonably request. Together with such
statement, the Seller shall furnish to the Purchaser a statement covering the
Seller’s efforts in connection with the sale of such REO Property and any rental
of such REO Property incidental to the sale thereof for the previous
month.
-12-
Each
REO
Disposition shall be carried out by the Seller at such price and upon such
terms
and conditions as the Seller deems to be in the best interest of the Purchaser
only with the prior written consent of the Purchaser. If as of the date title
to
any REO Property was acquired by the Seller there were outstanding unreimbursed
Servicing Advances with respect to the REO Property, the Seller, upon an REO
Disposition of such REO Property, shall be entitled to reimbursement for any
related unreimbursed Servicing Advances from proceeds received in connection
with such REO Disposition. The proceeds from the REO Disposition, net of any
payment to the Seller as provided above, shall be deposited in the REO Account
and shall be transferred to the Custodial Account on the Determination Date
in
the month following receipt thereof for distribution on the succeeding
Distribution Date in accordance with Subsection 11.14.
Subsection
11.14 Distributions.
On
each
Distribution Date, the Seller shall distribute to the Purchaser all amounts
credited to the Custodial Account as of the close of business on the preceding
Determination Date, net of charges against or withdrawals from the Custodial
Account pursuant to Subsection 11.05; plus (ii) all Monthly Advances, if any,
which the Seller is obligated to distribute pursuant to Subsection 11.21, minus
(iii) any amounts attributable to Principal Prepayments received after the
last
day of the calendar month immediately preceding the related Distribution Date
and (iv) any amounts attributable to Monthly Prepayments collected but due
on a
Due Date or Dates subsequent to the preceding Determination Date.
All
distributions made to the Purchaser on each Distribution Date will be made
to
the Purchaser of record on the preceding Record Date, and shall be based on
the
Mortgage Loans owned and held by the Purchaser, and shall be made by wire
transfer of immediately available funds to the account of the Purchaser at
a
bank or other entity having appropriate facilities therefor, if the Purchaser
shall have so notified the Seller or by check mailed to the address of the
Purchaser.
With
respect to any remittance received by the Purchaser on or after the second
Business Day following the Business Day on which such payment was due, the
Seller shall pay to the Purchaser interest on any such late payment at an annual
rate equal to the rate of interest as is publicly announced from time to time
at
its principal office by JPMorgan Chase Bank, New York, New York, as its prime
lending rate, adjusted as of the date of each change, plus two (2) percentage
points, but in no event greater than the maximum amount permitted by applicable
law. Such interest shall be paid by the Seller to the Purchaser on the date
such
late payment is made and shall cover the period commencing with the day
following such second Business Day and ending with the Business Day on which
such payment is made, both inclusive. Such interest shall be remitted along
with
such late payment. The payment by the Seller of any such interest shall not
be
deemed an extension of time for payment or a waiver of any Event of Default
by
the Seller.
-13-
Subsection
11.15 Remittance
Reports.
No
later
than the tenth Business Day of each month, the Seller shall furnish to the
Purchaser or its designee an electronic file containing, and a hard copy upon
request of, the monthly data specified on Exhibit 13 hereto in a form acceptable
to the Purchaser and the Seller. On the Business Day following each
Determination Date, the Seller shall deliver to the Purchaser or its designee
by
telecopy (or by such other means as the Seller and the Purchaser may agree
from
time to time) an electronic file containing, and a hard copy upon request of,
the determination data with respect to the related Distribution Date (which
data
shall be mutually agreed upon by the Seller and the Purchaser), together with
such other information with respect to the Mortgage Loans as the Purchaser
may
reasonably require to allocate distributions made pursuant to this Agreement
and
provide appropriate statements with respect to such distributions.
Subsection
11.16 Statements
to the Purchaser.
Upon
request, the Seller shall forward to the Purchaser or its designee a statement
prepared by the Seller setting forth the status of the Custodial Account as
of
the close of business on such Distribution Date and showing, for the period
covered by such statement, the aggregate amount of deposits into and withdrawals
from the Custodial Account of each category of deposit specified in Subsection
11.04 and each category of withdrawal specified in Subsection
11.05.
The
Seller shall prepare and file any and all tax returns, information statements
or
other filings that the Seller is required to deliver to any governmental taxing
authority or to any Purchaser pursuant to any applicable law with respect to
the
Mortgage Loans and the transactions contemplated hereby. In addition, the Seller
shall provide the Purchaser with such information concerning the Mortgage Loans
as is necessary for the Purchaser to prepare its federal income tax return
as
any Purchaser may reasonably request from time to time.
Subsection
11.17 Real
Estate Owned Reports.
Together
with the statement furnished pursuant to Subsection 11.13, with respect to
any
REO Property, the Seller shall furnish to the Purchaser a statement covering
the
Seller's efforts in connection with the sale of such REO Property and any rental
of such REO Property incidental to the sale thereof for the previous month,
together with the operating statement. Such statement shall be accompanied
by
such other information as the Purchaser shall reasonably request.
Subsection
11.18 Liquidation
Reports.
Upon
the
foreclosure sale of any Mortgaged Property or the acquisition thereof by the
Purchaser pursuant to a deed-in-lieu of foreclosure, the Seller shall submit
to
the Purchaser a liquidation report with respect to such Mortgaged
Property.
Subsection
11.19 Assumption
Agreements.
The
Seller shall, to the extent it has knowledge of any conveyance or prospective
conveyance by any Mortgagor of the Mortgaged Property (whether by absolute
conveyance or by contract of sale, and whether or not the Mortgagor remains
or
is to remain liable under the Mortgage Note and/or the Mortgage), exercise
its
rights to accelerate the maturity of such Mortgage Loan under any “due-on-sale”
clause applicable thereto; provided, however, that the Seller shall not exercise
any such rights if prohibited by law from doing so or if the exercise of such
rights would impair or threaten to impair any recovery under the related Primary
Insurance Policy or LPMI Policy, if any. If the Seller reasonably believes
it is
unable under applicable law to enforce such “due-on-sale” clause, the Seller
shall enter into an assumption agreement with the person to whom the Mortgaged
Property has been conveyed or is proposed to be conveyed, pursuant to which
such
person becomes liable under the Mortgage Note and, to the extent permitted
by
applicable state law, the Mortgagor remains liable thereon. Where an assumption
is allowed pursuant to this Subsection 11.19, the Seller, with the prior written
consent of the insurer under the Primary Insurance Policy or LPMI Policy, if
any, is authorized to enter into a substitution of liability agreement with
the
person to whom the Mortgaged Property has been conveyed or is proposed to be
conveyed pursuant to which the original Mortgagor is released from liability
and
such Person is substituted as Mortgagor and becomes liable under the related
Mortgage Note. Any such substitution of liability agreement shall be in lieu
of
an assumption agreement.
-14-
In
connection with any such assumption or substitution of liability, the Seller
shall follow the underwriting practices and procedures of prudent mortgage
lenders in the state in which the related Mortgaged Property is located. With
respect to an assumption or substitution of liability, Mortgage Interest Rate,
the amount of the Monthly Payment, and the final maturity date of such Mortgage
Note may not be changed. The Seller shall notify the Purchaser that any such
substitution of liability or assumption agreement has been completed by
forwarding to the Purchaser the original of any such substitution of liability
or assumption agreement, which document shall be added to the related Mortgage
File and shall, for all purposes, be considered a part of such Mortgage File
to
the same extent as all other documents and instruments constituting a part
thereof. Any fee collected by the Seller for entering into an assumption or
substitution of liability agreement in excess of 1% of the outstanding principal
balance of the Mortgage Loan shall be deposited in the Custodial Account
pursuant to Subsection 11.04.
Notwithstanding
the foregoing paragraphs of this Subsection or any other provision of this
Agreement, the Seller shall not be deemed to be in default, breach or any other
violation of its obligations hereunder by reason of any assumption of a Mortgage
Loan by operation of law or any assumption which the Seller may be restricted
by
law from preventing, for any reason whatsoever. For purposes of this Subsection
11.19, the term “assumption” is deemed to also include a sale of the Mortgaged
Property subject to the Mortgage that is not accompanied by an assumption or
substitution of liability agreement.
Subsection
11.20 Satisfaction
of Mortgages and Release of Mortgage Files.
Upon
the
payment in full of any Mortgage Loan, or the receipt by the Seller of a
notification that payment in full will be escrowed in a manner customary for
such purposes, the Seller shall request execution of any document necessary
to
satisfy the Mortgage Loan and delivery to it of the portion of the Mortgage
File
held by the Purchaser or the Purchaser's designee. Upon receipt of such
certification and request, the Purchaser, shall promptly release the related
mortgage documents to the Seller and the Seller shall prepare and process any
satisfaction or release. No expense incurred in connection with any instrument
of satisfaction or deed of reconveyance shall be chargeable to the Custodial
Account or the Purchaser.
-15-
In
the
event the Seller satisfies or releases a Mortgage without having obtained
payment in full of the indebtedness secured by the Mortgage or should it
otherwise prejudice any right the Purchaser may have under the mortgage
instruments, the Seller, upon written demand, shall remit to the Purchaser
the
then outstanding principal balance of the related Mortgage Loan by deposit
thereof in the Custodial Account. The Seller shall maintain the fidelity bond
insuring the Seller against any loss it may sustain with respect to any Mortgage
Loan not satisfied in accordance with the procedures set forth
herein.
From
time
to time and as appropriate for the servicing or foreclosure of any Mortgage
Loan, including, for this purpose, collection under any Primary Insurance Policy
or LPMI Policy, the Purchaser shall, upon request of the Seller and delivery
to
the Purchaser of a servicing receipt signed by a Servicing Officer, release
the
requested portion of the Mortgage Loan Documents held by the Purchaser or the
Custodian to the Seller. Such servicing receipt shall obligate the Seller to
return the related Mortgage documents to the Purchaser when the need therefor
by
the Seller no longer exists, unless the Mortgage Loan has been liquidated and
the Liquidation Proceeds relating to the Mortgage Loan have been deposited
in
the Custodial Account or the Mortgage File or such document has been delivered
to an attorney, or to a public trustee or other public official as required
by
law, for purposes of initiating or pursuing legal action or other proceedings
for the foreclosure of the Mortgaged Property either judicially or
non-judicially, and the Seller has delivered to the Purchaser a certificate
of a
Servicing Officer certifying as to the name and address of the Person to which
such Mortgage File or such document was delivered and the purpose or purposes
of
such delivery. Upon receipt of a certificate of a Servicing Officer stating
that
such Mortgage Loan was liquidated, the servicing receipt shall be released
by
the Purchaser to the Seller.
Subsection
11.21 Monthly
Advances by the Seller.
(a) Not
later
than the close of business on the Business Day preceding each Distribution
Date,
the Seller shall deposit in the Custodial Account an amount equal to all
payments not previously advanced by the Seller, whether or not deferred pursuant
to Subsection 11.01, of principal (due after the Cut-off Date) and interest
not
allocable to the period prior to the Cut-off Date, at the Mortgage Interest
Rate
net of the Servicing Fee, which were due on a Mortgage Loan and delinquent
at
the close of business on the related Determination Date.
(b) The
obligation of the Seller to make such Monthly Advances is mandatory,
notwithstanding any other provision of this Agreement, and, with respect to
any
Mortgage Loan or REO Property, shall continue until a Final Recovery
Determination in connection therewith; provided that, notwithstanding anything
herein to the contrary, no Monthly Advance shall be required to be made
hereunder by the Seller if such Monthly Advance would, if made, constitute
a
Nonrecoverable Monthly Advance. The determination by the Seller that it has
made
a Nonrecoverable Monthly Advance or that any proposed Monthly Advance, if made,
would constitute a Nonrecoverable Monthly Advance, shall be evidenced by an
Officers' Certificate delivered to the Purchaser.
-16-
Subsection
11.22 Servicing
Compensation.
As
compensation for its services hereunder, the Seller shall, subject to Subsection
11.04(xi), be entitled to withdraw from the Custodial Account or to retain
from
interest payments on the Mortgage Loans the amounts provided for as the Seller's
Servicing Fee. Additional servicing compensation in the form of assumption
fees,
as provided in Subsection 11.19, and late payment charges and similar ancillary
servicing compensation shall be retained by the Seller to the extent not
required to be deposited in the Custodial Account. The Seller shall not be
permitted to retain any portion of the Prepayment Charges collected on the
Mortgage Loans, which Prepayment Charges shall be remitted to the Purchaser.
The
Seller shall be required to pay all expenses incurred by it in connection with
its servicing activities hereunder and shall not be entitled to reimbursement
therefor except as specifically provided for.
Subsection
11.23 Notification
of Adjustments.
On
each
Adjustment Date, the Seller shall make interest rate adjustments for each
Adjustable Rate Mortgage Loan in compliance with the requirements of the related
Mortgage and Mortgage Note. The Seller shall execute and deliver the notices
required by each Mortgage and Mortgage Note regarding interest rate adjustments.
The Seller also shall provide timely notification to the Purchaser of all
applicable data and information regarding such interest rate adjustments and
the
Seller's methods of implementing such interest rate adjustments. Upon the
discovery by the Seller or the Purchaser that the Seller has failed to adjust
a
Mortgage Interest Rate or a Monthly Payment pursuant to the terms of the related
Mortgage Note and Mortgage, the Seller shall immediately deposit in the
Custodial Account from its own funds the amount of any interest loss caused
thereby without reimbursement therefor.
Subsection
11.24 Statement
as to Compliance.
(a) The
Seller will deliver to the Purchaser, not later than 75 days following the
end
of each calendar year, an Officers’ Certificate stating, as to each signatory
thereof, that (i) a review of the activities of the Seller during the preceding
year and of performance under this Agreement has been made under such officers’
supervision and (ii) to the best of such officers’ knowledge, based on such
review, the Seller has fulfilled all of its obligations under this Agreement
throughout such year, or, if there has been a default in the fulfillment of
any
such obligation, specifying each such default known to such officer and the
nature and status thereof. Copies of such statement shall be provided by the
Purchaser to any Person identified as a prospective purchaser of the Mortgage
Loans.
(b) With
respect to any Loans that are subject to a Securitization Transaction or other
securitization transaction, by February 28 of each year (or if not a Business
Day, the immediately preceding Business Day), or at any other time upon thirty
(30) days written request, an officer of the Seller shall execute and deliver
an
Officer’s Certificate to the Purchaser, any Master Servicer and any related
Depositor for the benefit of each such entity and such entity’s affiliates and
the officers, directors and agents of any such entity and such entity’s
affiliates, an Officer’s Certificate in the form attached hereto as Exhibit 12
or Exhibit 14, as directed by the Purchaser.
-17-
(c) The
Seller shall indemnify and hold harmless the Master Servicer, the Depositor,
the
Purchaser (and if this Agreement has been assigned in whole or in part by the
Purchaser, any and all Persons previously acting as “Purchaser” hereunder), and
their respective officers, directors, agents and affiliates, and such
affiliates’ officers, directors and agents (any such person, an “Indemnified
Party”) from and against any losses, damages, penalties, fines, forfeitures,
reasonable legal fees and related costs, judgments and other costs and expenses
arising out of or based upon a breach by the Seller or any of its officers,
directors, agents or affiliates of its obligations under this Subsection 11.24,
Subsection 11.25 or Subsection 11.26, or the negligence, bad faith or willful
misconduct of the Seller in connection therewith. If the indemnification
provided for herein is unavailable or insufficient to hold harmless any
Indemnified Party, then the Seller agrees that it shall contribute to the amount
paid or payable by the Indemnified Party as a result of the losses, claims,
damages or liabilities of the Indemnified Party in such proportion as is
appropriate to reflect the relative fault of the Indemnified Party on the one
hand and the Seller in the other in connection with a breach of the Seller’s
obligations under this Subsection 11.24, Subsection 11.25 or Subsection 11.26,
or the Seller’s negligence, bad faith or willful misconduct in connection
therewith.
Subsection
11.25 Independent
Public Accountants’ Servicing Report.
Not
later
than 75 days following the end of each calendar year, the Seller at its expense
shall cause a firm of independent public accountants (which may also render
other services to the Seller) which is a member of the American Institute of
Certified Public Accountants to furnish a statement to the Purchaser or its
designee to the effect that such firm has examined certain documents and records
relating to the servicing of the Mortgage Loans under this Agreement or of
mortgage loans under pooling and servicing agreements (including the Mortgage
Loans and this Agreement) substantially similar one to another (such statement
to have attached thereto a schedule setting forth the pooling and servicing
agreements covered thereby) and that, on the basis of such examination conducted
substantially in compliance with the Uniform Single Attestation Program for
Mortgage Bankers, such firm confirms that such servicing has been conducted
in
compliance with this Agreement or such pooling and servicing agreements, as
applicable, except for such significant exceptions or errors in records that,
in
the opinion of such firm, the Uniform Single Attestation Program for Mortgage
Bankers requires it to report. Copies of such statement shall be provided by
the
Purchaser to any Person identified as a prospective purchaser of the Mortgage
Loans. To the extent the Purchaser has provided the Seller with a substantially
similar report from a firm of independent public accountants pursuant to Section
13 with respect to any calendar year, the Seller shall be deemed to have
satisfied the provisions of this Section 11.25.
Subsection
11.26 Access
to Certain Documentation.
The
Seller shall provide to the Office of Thrift Supervision, the FDIC and any
other
federal or state banking or insurance regulatory authority that may exercise
authority over the Purchaser access to the documentation regarding the Mortgage
Loans serviced by the Seller required by applicable laws and regulations. Such
access shall be afforded without charge, but only upon reasonable request and
during normal business hours at the offices of the Seller. In addition, access
to the documentation will be provided to the Purchaser and any Person identified
to the Seller by the Purchaser without charge, upon reasonable request during
normal business hours at the offices of the Seller.
-18-
Subsection
11.27 Reports
and Returns to be Filed by the Seller.
The
Seller shall file information reports with respect to the receipt of mortgage
interest received in a trade or business, reports of foreclosures and
abandonments of any Mortgaged Property and information returns relating to
cancellation of indebtedness income with respect to any Mortgaged Property
as
required by Sections 6050H, 6050J and 6050P of the Code. Such reports shall
be
in form and substance sufficient to meet the reporting requirements imposed
by
such Sections 6050H, 6050J and 6050P of the Code.
Subsection
11.28 Compliance
with REMIC Provisions.
If
a
REMIC election has been made with respect to the arrangement under which the
Mortgage Loans and REO Property are held, the Seller unless otherwise directed
by the Purchaser shall not take any action, cause the REMIC to take any action
or fail to take (or fail to cause to be taken) any action that, under the REMIC
Provisions, if taken or not taken, as the case may be, could (i) endanger the
status of the REMIC as a REMIC or (ii) result in the imposition of a tax upon
the REMIC (including but not limited to the tax on “prohibited transactions” as
defined in Section 860F(a)(2) of the Code and the tax on “contributions” to
a REMIC set forth in Section 860G(d) of the Code) unless the Seller has
received an Opinion of Counsel (at the expense of the party seeking to take
such
action) to the effect that the contemplated action will not endanger such REMIC
status or result in the imposition of any such tax.
Subsection
11.29 Superior
Liens.
With
respect to each second lien Mortgage, the Seller shall, for the protection
of
the Purchaser's interest, file (or cause to be filed) of record a request for
notice of any action by a superior lienholder where permitted by local law
and
whenever applicable state law does not require that a junior lienholder be
named
as a party defendant in foreclosure proceedings in order to foreclose such
junior lienholder's equity of redemption. The Seller shall also notify any
superior lienholder in writing of the existence of the Mortgage Loan and request
notification of any action (as described below) to be taken against the Borrower
or the Mortgaged Property by the superior lienholder.
If
the
Seller is notified that any superior lienholder has accelerated or intends
to
accelerate the obligations secured by the superior lien, or has declared or
intends to declare a default under the superior mortgage or the promissory
note
secured thereby, or has filed or intends to file an election to have the
Mortgaged Property sold or foreclosed, the Seller shall take whatever actions
are necessary to protect the interests of the Purchaser, and/or to preserve
the
security of the related Mortgage Loan, subject to any requirements applicable
to
REMICs pursuant to the Code.
The
Seller shall make a Servicing Advance of the funds necessary to cure the default
or reinstate the superior lien if the Seller determines that such Servicing
Advance is in the best interests of the Purchaser. The Seller shall not make
such a Servicing Advance except to the extent that it determines that such
advance would not be a Nonrecoverable Servicing Advance from Liquidation
Proceeds on the related Mortgage Loan. The Seller shall thereafter take such
action as is necessary to recover the amount so advanced.
-19-
Subsection
11.30 Sub-Servicing
Agreements Between the Seller and Subservicers.
The
Seller, as servicer, may arrange for the subservicing of any Mortgage Loan
by a
Subservicer pursuant to a Sub-Servicing Agreement; provided that such
sub-servicing arrangement and the terms of the related Sub-Servicing Agreement
must provide for the servicing of such Mortgage Loans in a manner consistent
with the servicing arrangements contemplated hereunder. Each Subservicer shall
be (i) authorized to transact business in the state or states where the related
Mortgaged Properties it is to service are situated, if and to the extent
required by law applicable to the Subservicer to enable the Subservicer to
perform its obligations hereunder and under the Sub-Servicing Agreement and
(ii)
a Xxxxxxx Mac or Xxxxxx Mae approved mortgage servicer. Notwithstanding the
provisions of any Sub-Servicing Agreement, any of the provisions of this
Agreement relating to agreements or arrangements between the Seller or a
Subservicer or reference to actions taken through the Seller or otherwise,
the
Seller shall remain obligated and liable to the Purchaser and its successors
and
assigns for the servicing and administration of the Mortgage Loans in accordance
with the provisions of this Agreement without diminution of such obligation
or
liability by virtue of such Sub-Servicing Agreements or arrangements or by
virtue of indemnification from the Subservicer and to the same extent and under
the same terms and conditions as if the Seller alone were servicing and
administering the Mortgage Loans. Every Sub-Servicing Agreement entered into
by
the Seller shall contain a provision giving the successor servicer the option
to
terminate such agreement in the event a successor servicer is appointed. All
actions of each Subservicer performed pursuant to the related Sub-Servicing
Agreement shall be performed as an agent of the Seller with the same force
and
effect as if performed directly by the Seller.
For
purposes of this Agreement, the Seller shall be deemed to have received any
collections, recoveries or payments with respect to the Mortgage Loans that
are
received by a Subservicer regardless of whether such payments are remitted
by
the Subservicer to the Seller.
Subsection
11.31 Successor
Subservicers.
Any
Sub-Servicing Agreement shall provide that the Seller shall be entitled to
terminate any Sub-Servicing Agreement and to either itself directly service
the
related Mortgage Loans or enter into a Sub-Servicing Agreement with a successor
Subservicer which qualifies under Subsection 11.33. Any Sub-Servicing Agreement
shall include the provision that such agreement may be immediately terminated
by
any successor to the Seller without fee, in accordance with the terms of this
Agreement, in the event that the Seller (or any successor to the Seller) shall,
for any reason, no longer be the servicer of the related Mortgage Loans
(including termination due to an Event of Default).
-20-
Subsection
11.32 No
Contractual Relationship Between Subservicer and Purchaser.
Any
Sub-Servicing Agreement and any other transactions or services relating to
the
Mortgage Loans involving a Subservicer shall be deemed to be between the
Subservicer and the Seller alone and the Purchaser shall not be deemed a party
thereto and shall have no claims, rights, obligations, duties or liabilities
with respect to any Subservicer except as set forth in Subsection
11.33.
Subsection
11.33 Assumption
or Termination of Sub-Servicing Agreement by Successor Servicer.
In
connection with the assumption of the responsibilities, duties and liabilities
and of the authority, power and rights of the Seller hereunder by a successor
servicer pursuant to Section 16 of this Agreement, it is understood and agreed
that the Seller’s rights and obligations under any Sub-Servicing Agreement then
in force between the Seller and a Subservicer shall be assumed simultaneously
by
such successor servicer without act or deed on the part of such successor
servicer; provided, however, that any successor servicer may terminate the
Subservicer.
The
Seller shall, upon the reasonable request of the Purchaser, but at its own
expense, deliver to the assuming party documents and records relating to each
Sub-Servicing Agreement and an accounting of amounts collected and held by
it
and otherwise use its best efforts to effect the orderly and efficient transfer
of the Sub-Servicing Agreements to the assuming party.
-21-
EXHIBIT
10
FORM
OF
ASSIGNMENT AND RECOGNITION AGREEMENT
THIS
ASSIGNMENT AND RECOGNITION AGREEMENT, dated ____________, 200__, (“Agreement”)
among
Greenwich Capital Financial Products, Inc. (“Assignor”),
________________________ (“Assignee”)
and
________________________ (the “Company”):
For
and
in consideration of the sum of TEN DOLLARS ($10.00) and other valuable
consideration the receipt and sufficiency of which hereby are acknowledged,
and
of the mutual covenants herein contained, the parties hereto hereby agree as
follows:
Assignment
and Conveyance
|
1.
|
The
Assignor hereby conveys, sells, grants, transfers and assigns to
the
Assignee (x) all of the right, title and interest of the Assignor,
as
purchaser, in, to and under (a) those certain Mortgage Loans listed
as
being originated by the Company on the schedule (the “Mortgage Loan
Schedule”) attached hereto as Exhibit A (the “Mortgage Loans”) and (b)
except as described below, that certain Master Mortgage Loan Purchase
and
Interim Servicing Agreement dated as of __________ 1, 2005, as amended
(the “Purchase Agreement”), between the Assignor, as purchaser (the
“Purchaser”), and the Company, as seller, solely insofar as the Purchase
Agreement relates to the Mortgage Loans and (y) other than as provided
below with respect to the enforcement of representations and warranties,
none of the obligations of the Assignor under the Purchase
Agreement.
|
The
Assignor specifically reserves and does not assign to the Assignee hereunder
any
and all right, title and interest in, to and under and any obligations of the
Assignor with respect to any mortgage loans subject to the Purchase Agreement
which are not the Mortgage Loans set forth on the Mortgage Loan Schedule and
are
not the subject of this Agreement.
Recognition
of the Company
|
2.
|
[For
Securitization Transactions include this sentence: From and after
the date
hereof, the Company shall and does hereby recognize that the Assignee
will
transfer the Mortgage Loans and assign its rights under the Purchase
Agreement (solely to the extent set forth herein) and this Agreement
to
______________________________ (the “Trust”)
created pursuant to a Pooling and Servicing Agreement, dated as of
_______________, 200__ (the “Pooling
Agreement”),
among the Assignee, the Assignor, ____________________, as trustee
(including its successors in interest and any successor trustees
under the
Pooling Agreement, the “Trustee”),
_________________________, as servicer (including its successors
in
interest and any successor servicer under the Pooling Agreement,
the
“Servicer”).]
The Company hereby acknowledges and agrees that from and after the
date
hereof (i) the [Trust][Assignee] will be the owner of the Mortgage
Loans, (ii) the Company shall look solely to the [Trust][Assignee]
for performance of any obligations of the Assignor insofar as they
relate
to the enforcement of the representations, warranties and covenants
with
respect to the Mortgage Loans, (iii) the [Assignee][Trust (including
the Trustee and the Servicer acting on the Trust’s behalf)] shall have all
the rights and remedies available to the Assignor, insofar as they
relate
to the Mortgage Loans, under the Purchase Agreement, including, without
limitation, the enforcement of the document delivery requirements
and
remedies with respect to breaches of representations and warranties
set
forth in the Purchase Agreement, and shall be entitled to enforce
all of
the obligations of the Company thereunder insofar as they relate
to the
Mortgage Loans, and (iv) all references to the Purchaser (insofar as
they relate to the rights, title and interest and, with respect to
obligations of the Purchaser, only insofar as they relate to the
enforcement of the representations, warranties and covenants of the
Company) or the Custodian under the Purchase Agreement insofar as
they
relate to the Mortgage Loans, shall be deemed to refer to the [Assignee]
[Trust (including the Trustee and the Servicer acting on the Trust’s
behalf)]. Neither the Company nor the Assignor shall amend or agree
to
amend, modify, waiver, or otherwise alter any of the terms or provisions
of the Purchase Agreement which amendment, modification, waiver or
other
alteration would in any way affect the Mortgage Loans or the Company’s
performance under the Purchase Agreement with respect to the Mortgage
Loans without the prior written consent of the
[Assignee][Trustee.]
|
Representations
and Warranties of the Company
|
3.
|
The
Company warrants and represents to the Assignor, the Assignee [and
the
Trust] as of the date hereof that:
|
(a) The
Company is a federal association duly organized, validly existing and in good
standing under the laws of the United States;
(b)
The
Company has full power and authority to execute, deliver and perform its
obligations under this Agreement and has full power and authority to perform
its
obligations under the Purchase Agreement. The execution by the Company of this
Agreement is in the ordinary course of the Company’s business and will not
conflict with, or result in a breach of, any of the terms, conditions or
provisions of the Company’s charter or bylaws or any legal restriction, or any
material agreement or instrument to which the Company is now a party or by
which
it is bound, or result in the violation of any law, rule, regulation, order,
judgment or decree to which the Company or its property is subject. The
execution, delivery and performance by the Company of this Agreement have been
duly authorized by all necessary corporate action on part of the Company. This
Agreement has been duly executed and delivered by the Company, and, upon the
due
authorization, execution and delivery by the Assignor and the Assignee, will
constitute the valid and legally binding obligation of the Company, enforceable
against the Company in accordance with its terms except as enforceability may
be
limited by bankruptcy, reorganization, insolvency, moratorium or other similar
laws now or hereafter in effect relating to creditors’ rights generally, and by
general principles of equity regardless of whether enforceability is considered
in a proceeding in equity or at law;
-2-
(c)
No
consent, approval, order or authorization of, or declaration, filing or
registration with, any governmental entity is required to be obtained or made
by
the Company in connection with the execution, delivery or performance by the
Company of this Agreement; and
(d)
There
is
no action, suit, proceeding or investigation pending or threatened against
the
Company, before any court, administrative agency or other tribunal, which would
draw into question the validity of this Agreement or the Purchase Agreement,
or
which, either in any one instance or in the aggregate, would result in any
material adverse change in the ability of the Company to perform its obligations
under this Agreement or the Purchase Agreement, and the Company is
solvent.
|
4.
|
Pursuant
to Section 12 of the Purchase Agreement, the Company hereby
represents and warrants, for the benefit of the Assignor, the Assignee
[and the Trust,] that the representations and warranties set forth
in
Sections 7.01 and 7.02 of the Purchase Agreement, are true and correct
as
of the date hereof as if such representations and warranties were
made on
the date hereof, except that the representation and warranty set
forth in
Section 7.02(a) shall, for purposes of this Agreement, relate to the
Mortgage Loan Schedule attached
hereto.
|
[Additional
Representations and Warranties Necessary for
Securitization]
Remedies
for Breach of Representations and Warranties
|
5.
|
The
Company hereby acknowledges and agrees that the remedies available
to the
Assignor, the Assignee [and the Trust (including the Trustee and
the
Servicer acting on the Trust’s behalf)] in connection with any breach of
the representations and warranties made by the Company set forth
in
Sections 3 and 4 hereof shall be as set forth in Subsection 7.03 of
the Purchase Agreement as if they were set forth herein (including
without
limitation the repurchase and indemnity obligations set forth
therein).
|
Miscellaneous
|
6.
|
This
Agreement shall be construed in accordance with the laws of the State
of
New York, without regard to conflicts of law principles, and the
obligations, rights and remedies of the parties hereunder shall be
determined in accordance with such
laws.
|
-3-
|
7.
|
No
term or provision of this Agreement may be waived or modified unless
such
waiver or modification is in writing and signed by the party against
whom
such waiver or modification is sought to be enforced[, with the prior
written consent of the Trustee].
|
|
8.
|
This
Agreement shall inure to the benefit of [(i)] the successors and
assigns
of the parties hereto [and (ii) the Trust (including the Trustee
and the
Servicer acting on the Trust’s behalf)]. Any entity into which Assignor,
Assignee or Company may be merged or consolidated shall, without
the
requirement for any further writing, be deemed Assignor, Assignee
or
Company, respectively, hereunder.
|
|
9.
|
Each
of this Agreement and the Purchase Agreement shall survive the conveyance
of the Mortgage Loans and the assignment of the Purchase Agreement
(to the
extent assigned hereunder) by Assignor to Assignee [and by Assignee
to the
Trust] and nothing contained herein shall supersede or amend the
terms of
the Purchase Agreement.
|
|
10.
|
This
Agreement may be executed simultaneously in any number of counterparts.
Each counterpart shall be deemed to be an original and all such
counterparts shall constitute one and the same
instrument.
|
|
11.
|
In
the event that any provision of this Agreement conflicts with any
provision of the Purchase Agreement with respect to the Mortgage
Loans,
the terms of this Agreement shall
control.
|
|
12.
|
Capitalized
terms used in this Agreement (including the exhibits hereto) but
not
defined in this Agreement shall have the meanings given to such terms
in
the Purchase Agreement.
|
[SIGNATURE
PAGE FOLLOWS]
-4-
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed by their
duly authorized officers as of the date first above written.
|
GREENWICH
CAPITAL FINANCIAL
PRODUCTS,
INC.
|
||
| |
|
|
| By: | ||
|
|
||
|
Name:
|
||
|
|
||
|
Its:
|
|
|
|
|
||
| By: | ||
|
|
||
|
Name:
|
||
|
Its:
|
|
|
|
|
||
| By: | ||
|
|
||
|
Name:
|
||
|
Its:
|
|
-5-
EXHIBIT
11
INDEMNIFICATION
AGREEMENT
Indemnification
Agreement dated as of _________ __, 200__ (the “Agreement”) among
________________ (“Company”), __________________(“Underwriter”) and
_____________________ (the “Depositor”).
Reference
is made to the issuance of ____________________, Series ________, Asset-Backed
Certificates (the “Certificates”), pursuant to a Pooling and Servicing
Agreement, dated as of _______________ (the “Pooling and Servicing Agreement”),
among the Depositor as depositor, _________________ as master servicer and
_____________________ as trustee (the “Trustee”). The Depositor will sell
certain of the Certificates to _______________ (the “Underwriter”) for offer and
sale pursuant to the terms of an Underwriting Agreement, dated ______________,
____ (the “Underwriting Agreement”), between the Depositor and the Underwriter.
Capitalized terms not otherwise defined herein shall have the meanings set
forth
in the Pooling and Servicing Agreement.
Reference
is also made to the information provided by ____________ contained in the
Prospectus Supplement, including any supplement or amendment thereto, under
the
caption, “The Originators—______________” and “__________” (the “Company
Information”).
1.
(a)
Company
(also referred to herein as the “Indemnifying Party”) agrees to indemnify and
hold harmless the Underwriter, the Depositor and each of their directors and
officers and affiliates and each person, if any, who controls the Underwriter
or
the Depositor within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act (the “Indemnified Party”), against any and
all actual losses, claims, expenses, damages or liabilities to which the
Depositor or any such director, officer or controlling person may become
subject, under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based
upon (x) any untrue statement of any material fact contained in the Company
Information or omission to state therein, a material fact required to be stated
therein or necessary to make the statements made therein, in light of the
circumstances under which such statements were made, not misleading (in each
case, regardless of whether a final judgment has been entered by a finder of
fact) or (y) any material misstatement or omission contained in the Prospectus
Supplement regarding information or statistics therein regarding the Mortgage
Loans based on information correctly derived by the Depositor or its affiliates
and included in the Prospectus Supplement from information actually provided
to
the Depositor or its affiliates by Company; and will reimburse any such
reasonable legal or other expenses reasonably incurred by the Depositor or
any
such director, officer or controlling person in connection with investigating
or
defending any such loss, claim, damage, liability or action. This indemnity
agreement will be in addition to any liability which Company may otherwise
have.
(b)
Promptly
after receipt by the Indemnified Party under this Section 1 of notice of
the commencement of any action described therein, the Indemnified Party will,
if
a claim in respect thereof is to be made against the Indemnifying Party under
this Section 1, notify the Indemnifying Party of the commencement thereof,
but the omission so to notify the Indemnifying Party will not relieve the
Indemnifying Party from any liability that it may have to the Indemnified Party
(a) under this Agreement except to the extent that the omission to notify the
Indemnifying Party with respect to this Agreement materially adversely affects
the Indemnifying Party’s ability to perform under this Agreement or (b)
otherwise than under this Agreement. In case any such action is brought against
the Indemnified Party, and it notifies the Indemnifying Party of the
commencement thereof, the Indemnifying Party will be entitled to participate
therein, and, to the extent that it may wish to do so, jointly with any other
Indemnifying Party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to the Indemnified Party (who shall not, except
with the consent of the Indemnified Party, be counsel to the Indemnifying
Party), and, after notice from the Indemnifying Party to the Indemnified Party
under this Section 1, the Indemnifying Party shall not be liable for any
legal or other expenses subsequently incurred by the Indemnified Party in
connection with the defense thereof other than reasonable costs of
investigation.
The
Indemnified Party shall have the right to employ separate counsel in any such
action and to participate in the defense thereof, but the fees and expenses
of
such counsel shall be at the expense of the Indemnified Party unless: (i) the
employment thereof has been specifically authorized by the Indemnifying Party
in
writing; (ii) the Indemnified Party shall have been advised by such counsel
that
there may be one or more legal defenses available to it which are different
from
or additional to those available to the Indemnifying Party and in the reasonable
judgment of such counsel it is advisable for the Indemnified Party to employ
separate counsel; (iii) a conflict or potential conflict exists (based on advice
of counsel to the Indemnified Party) between the Indemnified Party and the
Indemnifying Party (in which case the Indemnifying Party will not have the
right
to direct the defense of such action on behalf of the Indemnified Party) or
(iv)
the Indemnifying Party has failed to assume the defense of such action and
employ counsel reasonably satisfactory to the Indemnified Party, in which case,
if the Indemnified Party notifies the Indemnifying Party in writing that it
elects to employ separate counsel at the expense of the Indemnifying Party,
the
Indemnifying Party shall not have the right to assume the defense of such action
on behalf of the Indemnified Party, it being understood, however, the
Indemnifying Party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to local counsel) at any time for the Indemnified Party, which firm
shall be designated in writing by the Depositor or any of the Depositor’s
directors, officers or controlling persons.
The
Indemnified Party, as a condition of the indemnity agreements contained in
Section 1(a) and Section 1(b), shall fully cooperate with the
Indemnifying Party in the defense of any such action or claim. The Indemnifying
Party shall not be liable for any settlement of any such action effected without
its written consent (which consent shall not be unreasonably withheld), but
if
settled with its written consent or if there be a final judgment for the
plaintiff in any such action, the Indemnifying Party agrees to indemnify and
hold harmless the Indemnified Party from and against any loss or liability
(to
the extent set forth in Section 1(a) or Section 1(b) as applicable) by
reason of such settlement or judgment.
-2-
2.
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if personally delivered to or mailed by
registered mail, postage prepaid, or transmitted by facsimile and confirmed
by
similar mailed writing as follows: (i) if to Company: ________________, [__],
Attention: [__], and (ii) if to the Depositor:
____________________________________, Facsimile (___) ___-____, Attention:
Legal. Any party hereto may alter the address to which communications or copies
are to be sent by giving notice of such change of address in conformity with
the
provisions of this Section for the giving of notice.
3.
This
Agreement may be executed in any number of counterparts, each of which when
so
executed shall be deemed to be an original, but all of such counterparts shall
together constitute one instrument.
4.
This
Agreement shall be construed in accordance with the laws of the State of New
York.
-3-
IN
WITNESS WHEREOF, the Depositor, Underwriter and Company have caused their names
to be signed by their respective officers thereunto duly authorized as of the
date first above written.
|
|
||
| By: | ||
|
|
||
|
Name:
|
||
|
Title:
|
||
|
|
||
| By: | ||
|
|
||
|
Name:
|
||
|
Title:
|
|
|
|
|
||
| By: | ||
|
|
||
|
Name:
|
||
| Title: |
-4-
EXHIBIT
12
FORM
OF
BACK-UP CERTIFICATION
I,
[identify certifying individual], certify to the [Purchaser], [Mortgage Loan
Seller] [Depositor], [Trustee], [Securities Administrator] and [Master Servicer]
that:
(i) Based
on
my knowledge, the information in the Annual Statement of Compliance, the Annual
Independent Public Accountant's Servicing Report and all servicing reports,
officer's certificates and other information relating to the servicing of the
Mortgage Loans 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 light of the circumstances under which such statements were made,
not
misleading as of the date of this certification;
(ii) The
servicing information required to be provided by the Seller under this Servicing
Agreement has been provided to the Purchaser and the Master
Servicer;
(iii) I
am
responsible for reviewing the activities performed by the Seller under the
Agreement and based upon the review required by the Agreement, and except as
disclosed in the Annual Statement of Compliance or the Annual Independent Public
Accountant's Servicing Report, the Seller has, as of the date of this
certification fulfilled its obligations under the Agreement; and
(iv) Seller
has disclosed to the Purchaser and the Master Servicer all significant
deficiencies relating to the Seller’s compliance with the minimum servicing
standards in accordance with a review conducted in compliance with the Uniform
Single Attestation Program for Mortgage Bankers or similar standard as set
forth
in the Servicing Agreement.
|
XXXXXX SAVINGS AND LOAN
ASSOCIATION, F.A.
|
||
| |
|
|
|
By:
Name:
Title:
Date:
|
||
EXHIBIT
13
FORM
OF
REMITTANCE REPORT
EXHIBIT
14
FORM
OF
ANNUAL CERTIFICATION
Re: The
[ ]
agreement dated as of [ l,
200[ ]
(the “Agreement”), among [IDENTIFY PARTIES]
I,
_____________________________________, the _______________________ of [NAME
OF
COMPANY] and, in such capacity, the officer in charge of the Company’s
responsibility on Exhibit 15 to the Agreement. I hereby certify to [the
Purchaser], [the Depositor], and the [Master Servicer] [Securities
Administrator] [Trustee], and their officers, with the knowledge and intent
that
they will rely upon this certification, that:
(i) I
have
reviewed the servicer compliance statement of the Company provided in accordance
with Item 1123 of Regulation AB (the “Compliance Statement”), the report on
assessment of the Company’s compliance with the servicing criteria set forth in
Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided in accordance
with Rules 13a-18 and 15d-18 under Securities Exchange Act of 1934, as amended
(the “Exchange Act”) and Item 1122 of Regulation AB (the “Servicing
Assessment”), the registered public accounting firm’s attestation report
provided in accordance with Rules 13a-18 and 15d-18 under the Exchange Act
and
Section 1122(b) of Regulation AB (the “Attestation Report”), and all other data,
servicing reports, officer’s certificates and other information relating to the
performance of the Company under the terms of the Agreement and the servicing
of
the Mortgage Loans by the Company during 200[ ] that were delivered to the
[Depositor] [Master Servicer] [Securities Administrator] [Trustee] pursuant
to
the Agreement (collectively, the “Company Servicing Information”);
(ii) Based
on
my knowledge, the reports and information comprising the Company Servicing
Information, taken as a whole, does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
made, in the light of the circumstances under which such statements were made,
not misleading as of the period covered by, or the date of such reports or
information or the date of this certification;
(iii) 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];
(iv) 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; and
(v) The
Compliance Statement required to be delivered by the Company pursuant to the
Agreement, and the Servicing Assessment and Attestation Report required to
be
provided by the Company and by any Subservicer or Subcontractor pursuant to
the
Agreement, have been provided to the [Depositor] [Master Servicer]. The
Servicing Assessment and the Attestation Report cover all items of the servicing
criteria identified on Exhibit 15 to the Agreement as applicable to the Company.
Any material instances of noncompliance described in such reports have been
disclosed to the [Depositor] [Master Servicer]. Any material instance of
noncompliance with the Servicing Criteria has been disclosed in such reports.
The following material instances of noncompliance identified in the Servicing
Assessment and the Attestation Report relate to the performance or obligations
of the Company under the Agreement: ____________ (if none, state
“None.”)
|
Date:
_________________________
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
-2-
EXHIBIT
15
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by [the Company] [Name of Subservicer]
shall address, at a minimum, the criteria identified as below as “Applicable
Servicing Criteria”:
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
|||
|
Reference
|
Criteria
|
|||
|
General
Servicing Considerations
|
||||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
||
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
||
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the Mortgage Loans are maintained.
|
X
|
||
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
X
|
||
|
Cash
Collection and Administration
|
||||
|
1122(d)(2)(i)
|
Payments
on Mortgage Loans are deposited into the appropriate custodial bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
||
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
||
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
X
|
||
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
||
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
||
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
X
|
||
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 45 (or to the extent reasonably required by the Purchaser
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
|
||
|
Reference
|
Criteria
|
Applicable
Servicing
Criteria
|
||
|
Investor
Remittances and Reporting
|
||||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of Mortgage Loans serviced by the
Servicer.
|
X
|
||
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
||
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
||
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
X
|
||
|
Pool
Asset Administration
|
||||
|
1122(d)(4)(i)
|
Collateral
or security on Mortgage Loans is maintained as required by the transaction
agreements or related Mortgage Loan documents.
|
X
|
||
|
1122(d)(4)(ii)
|
Mortgage
Loan and related documents are safeguarded as required by the transaction
agreements.
|
X
|
||
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
X
|
||
|
1122(d)(4)(iv)
|
Payments
on Mortgage Loans, including any payoffs, made in accordance with
the
related Mortgage Loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow) in
accordance with the related Mortgage Loan documents.
|
X
|
||
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the Mortgage Loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
X
|
||
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor’s Mortgage Loans (e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
-2-
|
Reference
|
Criteria
|
Applicable
Servicing
Criteria
|
||
|
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 applicable 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.
|
X
|
-3-
EXHIBIT
FOUR-A
Standard
File Layout - Scheduled/Scheduled
|
Column
Name
|
Description
|
Decimal
|
Format
Comment
|
Max
Size
|
|
SER_INVESTOR_NBR
|
A
value assigned by the Servicer to define a group of loans.
|
|
Text
up to 10 digits
|
20
|
|
LOAN_NBR
|
A
unique identifier assigned to each loan by the investor.
|
|
Text
up to 10 digits
|
10
|
|
SERVICER_LOAN_NBR
|
A
unique number assigned to a loan by the Servicer. This may be different
than the LOAN_NBR.
|
|
Text
up to 10 digits
|
10
|
|
SCHED_PAY_AMT
|
Scheduled
monthly principal and scheduled interest payment that a borrower
is
expected to pay, P&I constant.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
NOTE_INT_RATE
|
The
loan interest rate as reported by the Servicer.
|
4
|
Max
length of 6
|
6
|
|
NET_INT_RATE
|
The
loan gross interest rate less the service fee rate as reported by
the
Servicer.
|
4
|
Max
length of 6
|
6
|
|
SERV_FEE_RATE
|
The
servicer's fee rate for a loan as reported by the Servicer.
|
4
|
Max
length of 6
|
6
|
|
SERV_FEE_AMT
|
The
servicer's fee amount for a loan as reported by the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
NEW_PAY_AMT
|
The
new loan payment amount as reported by the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
NEW_LOAN_RATE
|
The
new loan rate as reported by the Servicer.
|
4
|
Max
length of 6
|
6
|
|
ARM_INDEX_RATE
|
The
index the Servicer is using to calculate a forecasted
rate.
|
4
|
Max
length of 6
|
6
|
|
ACTL_BEG_PRIN_BAL
|
The
borrower's actual principal balance at the beginning of the processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
ACTL_END_PRIN_BAL
|
The
borrower's actual principal balance at the end of the processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
BORR_NEXT_PAY_DUE_DATE
|
The
date at the end of processing cycle that the borrower's next payment
is
due to the Servicer, as reported by Servicer.
|
|
MM/DD/YYYY
|
10
|
|
SERV_CURT_AMT_1
|
The
first curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_DATE_1
|
The
curtailment date associated with the first curtailment amount.
|
|
MM/DD/YYYY
|
10
|
|
CURT_ADJ_
AMT_1
|
The
curtailment interest on the first curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_AMT_2
|
The
second curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_DATE_2
|
The
curtailment date associated with the second curtailment
amount.
|
|
MM/DD/YYYY
|
10
|
|
CURT_ADJ_
AMT_2
|
The
curtailment interest on the second curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_AMT_3
|
The
third curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_DATE_3
|
The
curtailment date associated with the third curtailment
amount.
|
|
MM/DD/YYYY
|
10
|
|
CURT_ADJ_AMT_3
|
The
curtailment interest on the third curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
4
-1
|
PIF_AMT
|
The
loan "paid in full" amount as reported by the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PIF_DATE
|
The
paid in full date as reported by the Servicer.
|
|
MM/DD/YYYY
|
10
|
|
|
|
|
Action
Code Key: 15=Bankruptcy, 00xXxxxxxxxxxx, , 00xXXX, 63=Substitution,
65=Repurchase,70=REO
|
2
|
|
ACTION_CODE
|
The
standard FNMA numeric code used to indicate the default/delinquent
status
of a particular loan.
|
|||
|
INT_ADJ_AMT
|
The
amount of the interest adjustment as reported by the
Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SOLDIER_SAILOR_ADJ_AMT
|
The
Soldier and Sailor Adjustment amount, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
NON_ADV_LOAN_AMT
|
The
Non Recoverable Loan Amount, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
LOAN_LOSS_AMT
|
The
amount the Servicer is passing as a loss, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_BEG_PRIN_BAL
|
The
scheduled outstanding principal amount due at the beginning of the
cycle
date to be passed through to investors.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_END_PRIN_BAL
|
The
scheduled principal balance due to investors at the end of a processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_PRIN_AMT
|
The
scheduled principal amount as reported by the Servicer for the current
cycle -- only applicable for Scheduled/Scheduled Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_NET_INT
|
The
scheduled gross interest amount less the service fee amount for the
current cycle as reported by the Servicer -- only applicable for
Scheduled/Scheduled Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
ACTL_PRIN_AMT
|
The
actual principal amount collected by the Servicer for the current
reporting cycle -- only applicable for Actual/Actual
Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
ACTL_NET_INT
|
The
actual gross interest amount less the service fee amount for the
current
reporting cycle as reported by the Servicer -- only applicable for
Actual/Actual Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PREPAY_PENALTY_
AMT
|
The
penalty amount received when a borrower prepays on his loan as reported
by
the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PREPAY_PENALTY_
WAIVED
|
The
prepayment penalty amount for the loan waived by the
servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
|
|
|
|
|
|
MOD_DATE
|
The
Effective Payment Date of the Modification for the loan.
|
|
MM/DD/YYYY
|
10
|
|
MOD_TYPE
|
The
Modification Type.
|
|
Varchar
- value can be alpha or numeric
|
30
|
|
DELINQ_P&I_ADVANCE_AMT
|
The
current outstanding principal and interest advances made by
Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
4
-2
EXHIBIT
FOUR-B
Standard
File Layout - Delinquency Reporting
|
Column/Header
Name
|
Description
|
Decimal
|
Format
Comment
|
|
SERVICER_LOAN_NBR
|
A
unique number assigned to a loan by the Servicer. This may be different
than the LOAN_NBR
|
|
|
|
LOAN_NBR
|
A
unique identifier assigned to each loan by the originator.
|
|
|
|
CLIENT_NBR
|
Servicer
Client Number
|
||
|
SERV_INVESTOR_NBR
|
Contains
a unique number as assigned by an external servicer to identify a
group of
loans in their system.
|
|
|
|
PROP_ADDRESS
|
Street
Name and Number of Property
|
|
|
|
PROP_STATE
|
The
state where the property located.
|
|
|
|
PROP_ZIP
|
Zip
code where the property is located.
|
|
|
|
BORR_NEXT_PAY_DUE_DATE
|
The
date that the borrower's next payment is due to the servicer at the
end of
processing cycle, as reported by Servicer.
|
MM/DD/YYYY
|
|
|
LOAN_TYPE
|
Loan
Type (i.e. FHA, VA, Conv)
|
|
|
|
BANKRUPTCY_FILED_DATE
|
The
date a particular bankruptcy claim was filed.
|
MM/DD/YYYY
|
|
|
BANKRUPTCY_CHAPTER_CODE
|
The
chapter under which the bankruptcy was filed.
|
|
|
|
BANKRUPTCY_CASE_NBR
|
The
case number assigned by the court to the bankruptcy
filing.
|
|
|
|
POST_PETITION_DUE_DATE
|
The
payment due date once the bankruptcy has been approved by the
courts
|
MM/DD/YYYY
|
|
|
BANKRUPTCY_DCHRG_DISM_DATE
|
The
Date The Loan Is Removed From Bankruptcy. Either by Dismissal, Discharged
and/or a Motion For Relief Was Granted.
|
MM/DD/YYYY
|
|
|
LOSS_MIT_APPR_DATE
|
The
Date The Loss Mitigation Was Approved By The Servicer
|
MM/DD/YYYY
|
|
|
LOSS_MIT_TYPE
|
The
Type Of Loss Mitigation Approved For A Loan Such As;
|
||
|
LOSS_MIT_EST_COMP_DATE
|
The
Date The Loss Mitigation /Plan Is Scheduled To End/Close
|
MM/DD/YYYY
|
|
|
LOSS_MIT_ACT_COMP_DATE
|
The
Date The Loss Mitigation Is Actually Completed
|
MM/DD/YYYY
|
|
|
FRCLSR_APPROVED_DATE
|
The
date DA Admin sends a letter to the servicer with instructions to
begin
foreclosure proceedings.
|
MM/DD/YYYY
|
|
|
ATTORNEY_REFERRAL_DATE
|
Date
File Was Referred To Attorney to Pursue Foreclosure
|
MM/DD/YYYY
|
|
|
FIRST_LEGAL_DATE
|
Notice
of 1st legal filed by an Attorney in a Foreclosure Action
|
MM/DD/YYYY
|
|
|
FRCLSR_SALE_EXPECTED_DATE
|
The
date by which a foreclosure sale is expected to occur.
|
MM/DD/YYYY
|
|
|
FRCLSR_SALE_DATE
|
The
actual date of the foreclosure sale.
|
MM/DD/YYYY
|
|
|
FRCLSR_SALE_AMT
|
The
amount a property sold for at the foreclosure sale.
|
2
|
No
commas(,) or dollar signs ($)
|
|
EVICTION_START_DATE
|
The
date the servicer initiates eviction of the borrower.
|
MM/DD/YYYY
|
|
|
EVICTION_COMPLETED_DATE
|
The
date the court revokes legal possession of the property from the
borrower.
|
MM/DD/YYYY
|
|
|
LIST_PRICE
|
The
price at which an REO property is marketed.
|
2
|
No
commas(,) or dollar signs ($)
|
|
LIST_DATE
|
The
date an REO property is listed at a particular price.
|
MM/DD/YYYY
|
|
|
OFFER_AMT
|
The
dollar value of an offer for an REO property.
|
2
|
No
commas(,) or dollar signs ($)
|
|
OFFER_DATE_TIME
|
The
date an offer is received by DA Admin or by the Servicer.
|
MM/DD/YYYY
|
|
|
REO_CLOSING_DATE
|
The
date the REO sale of the property is scheduled to close.
|
MM/DD/YYYY
|
|
|
REO_ACTUAL_CLOSING_DATE
|
Actual
Date Of REO Sale
|
MM/DD/YYYY
|
|
|
OCCUPANT_CODE
|
Classification
of how the property is occupied.
|
|
4
-3
|
PROP_CONDITION_CODE
|
A
code that indicates the condition of the property.
|
|
|
|
PROP_INSPECTION_DATE
|
The
date a property inspection is performed.
|
MM/DD/YYYY
|
|
|
APPRAISAL_DATE
|
The
date the appraisal was done.
|
MM/DD/YYYY
|
|
|
CURR_PROP_VAL
|
The
current "as is" value of the property based on brokers price opinion
or
appraisal.
|
2
|
|
|
REPAIRED_PROP_VAL
|
The
amount the property would be worth if repairs are completed pursuant
to a
broker's price opinion or appraisal.
|
2
|
|
|
If
applicable:
|
|
|
|
|
DELINQ_STATUS_CODE
|
FNMA
Code Describing Status of Loan
|
||
|
DELINQ_REASON_CODE
|
The
circumstances which caused a borrower to stop paying on a loan. Code
indicates the reason why the loan is in default for this
cycle.
|
||
|
MI_CLAIM_FILED_DATE
|
Date
Mortgage Insurance Claim Was Filed With Mortgage Insurance
Company.
|
MM/DD/YYYY
|
|
|
MI_CLAIM_AMT
|
Amount
of Mortgage Insurance Claim Filed
|
No
commas(,) or dollar signs ($)
|
|
|
MI_CLAIM_PAID_DATE
|
Date
Mortgage Insurance Company Disbursed Claim Payment
|
MM/DD/YYYY
|
|
|
MI_CLAIM_AMT_PAID
|
Amount
Mortgage Insurance Company Paid On Claim
|
2
|
No
commas(,) or dollar signs ($)
|
|
POOL_CLAIM_FILED_DATE
|
Date
Claim Was Filed With Pool Insurance Company
|
MM/DD/YYYY
|
|
|
POOL_CLAIM_AMT
|
Amount
of Claim Filed With Pool Insurance Company
|
2
|
No
commas(,) or dollar signs ($)
|
|
POOL_CLAIM_PAID_DATE
|
Date
Claim Was Settled and The Check Was Issued By The Pool
Insurer
|
MM/DD/YYYY
|
|
|
POOL_CLAIM_AMT_PAID
|
Amount
Paid On Claim By Pool Insurance Company
|
2
|
No
commas(,) or dollar signs ($)
|
|
FHA_PART_A_CLAIM_FILED_DATE
|
Date
FHA Part A Claim Was Filed With HUD
|
MM/DD/YYYY
|
|
|
FHA_PART_A_CLAIM_AMT
|
Amount
of FHA Part A Claim Filed
|
2
|
No
commas(,) or dollar signs ($)
|
|
FHA_PART_A_CLAIM_PAID_DATE
|
Date
HUD Disbursed Part A Claim Payment
|
MM/DD/YYYY
|
|
|
FHA_PART_A_CLAIM_PAID_AMT
|
Amount
HUD Paid on Part A Claim
|
2
|
No
commas(,) or dollar signs ($)
|
|
FHA_PART_B_CLAIM_FILED_DATE
|
Date
FHA Part B Claim Was Filed With HUD
|
MM/DD/YYYY
|
|
|
FHA_PART_B_CLAIM_AMT
|
Amount
of FHA Part B Claim Filed
|
2
|
No
commas(,) or dollar signs ($)
|
|
FHA_PART_B_CLAIM_PAID_DATE
|
Date
HUD Disbursed Part B Claim Payment
|
MM/DD/YYYY
|
|
|
FHA_PART_B_CLAIM_PAID_AMT
|
Amount
HUD Paid on Part B Claim
|
2
|
No
commas(,) or dollar signs ($)
|
|
VA_CLAIM_FILED_DATE
|
Date
VA Claim Was Filed With the Veterans Admin
|
MM/DD/YYYY
|
|
|
VA_CLAIM_PAID_DATE
|
Date
Veterans Admin. Disbursed VA Claim Payment
|
MM/DD/YYYY
|
|
|
VA_CLAIM_PAID_AMT
|
Amount
Veterans Admin. Paid on VA Claim
|
2
|
No
commas(,) or dollar signs ($)
|
4
-4
EXHIBIT
FOUR-C
Standard
File Codes - Delinquency Reporting
The
Loss
Mit Type
field
should show the approved Loss Mitigation Code as follows:
| · |
ASUM-Approved
Assumption
|
| · |
BAP-Borrower
Assistance Program
|
| · |
CO-Charge
Off
|
| · |
DIL-Deed-in-Lieu
|
| · |
FFA-Formal
Forbearance Agreement
|
| · |
MOD-Loan
Modification
|
| · |
PRE-Pre-Sale
|
| · |
SS-Short
Sale
|
| · |
MISC-Anything
else approved by the PMI or Pool
Insurer
|
NOTE:
Xxxxx Fargo Bank will accept alternative Loss Mitigation Types to those above,
provided that they are consistent with industry standards. If Loss Mitigation
Types other than those above are used, the Servicer must supply Xxxxx Fargo
Bank
with a description of each of the Loss Mitigation Types prior to sending the
file.
The
Occupant
Code
field should show the current status of the property code as
follows:
| · |
Mortgagor
|
| · |
Tenant
|
| · |
Unknown
|
| · |
Vacant
|
The
Property
Condition
field should show the last reported condition of the property as follows:
| · |
Damaged
|
| · |
Excellent
|
| · |
Fair
|
| · |
Gone
|
| · |
Good
|
| · |
Poor
|
| · |
Special
Hazard
|
| · |
Unknown
|
The
FNMA
Delinquent Reason Code
field should show the Reason for Delinquency as follows:
|
Delinquency
Code
|
Delinquency
Description
|
|
001
|
FNMA-Death
of principal mortgagor
|
|
002
|
FNMA-Illness
of principal mortgagor
|
|
003
|
FNMA-Illness
of mortgagor’s family member
|
|
004
|
FNMA-Death
of mortgagor’s family member
|
4
-5
|
005
|
FNMA-Marital
difficulties
|
|
006
|
FNMA-Curtailment
of income
|
|
007
|
FNMA-Excessive
Obligation
|
|
008
|
FNMA-Abandonment
of property
|
|
009
|
FNMA-Distant
employee transfer
|
|
011
|
FNMA-Property
problem
|
|
012
|
FNMA-Inability
to sell property
|
|
013
|
FNMA-Inability
to rent property
|
|
014
|
FNMA-Military
Service
|
|
015
|
FNMA-Other
|
|
016
|
FNMA-Unemployment
|
|
017
|
FNMA-Business
failure
|
|
019
|
FNMA-Casualty
loss
|
|
022
|
FNMA-Energy
environment costs
|
|
023
|
FNMA-Servicing
problems
|
|
026
|
FNMA-Payment
adjustment
|
|
027
|
FNMA-Payment
dispute
|
|
029
|
FNMA-Transfer
of ownership pending
|
|
030
|
FNMA-Fraud
|
|
031
|
FNMA-Unable
to contact borrower
|
|
INC
|
FNMA-Incarceration
|
The
FNMA
Delinquent Status Code
field should show the Status of Default as follows:
|
Status
Code
|
Status
Description
|
|
09
|
Forbearance
|
|
17
|
Pre-foreclosure
Sale Closing Plan Accepted
|
|
24
|
Government
Seizure
|
|
26
|
Refinance
|
|
27
|
Assumption
|
|
28
|
Modification
|
|
29
|
Charge-Off
|
|
30
|
Third
Party Sale
|
|
31
|
Probate
|
|
32
|
Military
Indulgence
|
|
43
|
Foreclosure
Started
|
|
44
|
Deed-in-Lieu
Started
|
|
49
|
Assignment
Completed
|
|
61
|
Second
Lien Considerations
|
|
62
|
Veteran’s
Affairs-No Bid
|
|
63
|
Veteran’s
Affairs-Refund
|
|
64
|
Veteran’s
Affairs-Buydown
|
|
65
|
Chapter
7 Bankruptcy
|
|
66
|
Chapter
11 Bankruptcy
|
|
67
|
Chapter
13 Bankruptcy
|
4
-6
EXHIBIT
FOUR-D
Calculation
of Realized Loss/Gain
(i)
The
numbers on the form correspond with the numbers listed below.
Liquidation
and Acquisition Expenses:
| 1. |
The
Actual Unpaid Principal Balance of the Mortgage Loan. For documentation,
an Amortization Schedule from date of default through liquidation
breaking
out the net interest and servicing fees advanced is
required.
|
| 2. |
The
Total Interest Due less the aggregate amount of servicing fee that
would
have been earned if all delinquent payments had been made as agreed.
For
documentation, an Amortization Schedule from date of default through
liquidation breaking out the net interest and servicing fees advanced
is
required.
|
| 3. |
Accrued
Servicing Fees based upon the Scheduled Principal Balance of
the Mortgage
Loan as calculated on a monthly basis. For documentation, an
Amortization
Schedule from date of default through liquidation breaking out
the net
interest and servicing fees advanced is
required.
|
| 4-12. |
Complete
as applicable. All line entries must be supported by copies
of appropriate
statements, vouchers, receipts, bills, canceled checks, etc.,
to document
the expense. Entries not properly documented will not be reimbursed
to the
Servicer.
|
| 13. |
The
total of lines 1 through 12.
|
(ii)
Credits:
| 14-21. |
Complete
as applicable. All line entries must be supported by copies of
the
appropriate claims forms, EOBs, HUD-1 and/or other proceeds verification,
statements, payment checks, etc. to document the credit. If the
Mortgage
Loan is subject to a Bankruptcy Deficiency, the difference between
the
Unpaid Principal Balance of the Note prior to the Bankruptcy
Deficiency
and the Unpaid Principal Balance as reduced by the Bankruptcy
Deficiency
should be input on line 20.
|
|
22.
|
The
total of lines 14 through 21.
|
Please
note:
For
HUD/VA loans, use line (15) for Part A/Initial proceeds and line (16) for Part
B/Supplemental proceeds.
(iii)
Total
Realized Loss (or Amount of Any Gain)
|
23.
|
The
total derived from subtracting line 22 from 13. If the amount represents
a
realized gain, show the amount in parenthesis (
).
|
4
-7
XXXXX
FARGO BANK, N.A.
CALCULATION
OF REALIZED LOSS/GAIN
| Prepared by: __________________ | Date: _______________ | |
| Phone: ______________________ | Email Address:_____________________ |
|
Servicer
Loan No.
|
Servicer
Name
|
Servicer
Address
|
|
XXXXX
FARGO BANK, N.A. Loan No._____________________________
|
||||
|
Borrower's
Name:________________________________________________________
|
||||
| Property Address:________________________________________________________________ | ||||
|
Liquidation
and Acquisition Expenses:
|
||||
|
(1)
|
Actual
Unpaid Principal Balance of Mortgage Loan
|
$
______________
|
(1)
|
|
|
(2)
|
Interest
accrued at Net Rate
|
________________
|
(2)
|
|
|
(3)
|
Accrued
Servicing Fees
|
________________
|
(3)
|
|
|
(4)
|
Attorney's
Fees
|
________________
|
(4)
|
|
|
(5)
|
Taxes
|
________________
|
(5)
|
|
|
(6)
|
Property
Maintenance
|
________________
|
(6)
|
|
|
(7)
|
MI/Hazard
Insurance Premiums
|
________________
|
(7)
|
|
|
(8)
|
Utility
Expenses
|
________________
|
(8)
|
|
|
(9)
|
Appraisal/BPO
|
________________
|
(9)
|
|
|
(10)
|
Property
Inspections
|
________________
|
(10)
|
|
|
(11)
|
FC
Costs/Other Legal Expenses
|
________________
|
(11)
|
|
|
(12)
|
Other
(itemize)
|
$________________
|
(12)
|
|
|
Cash
for Keys__________________________
|
________________
|
|
||
|
HOA/Condo
Fees_______________________
|
________________
|
|
||
|
______________________________________
|
________________
|
|
||
|
______________________________________
|
________________
|
|
||
|
Total
Expenses
|
$
_______________
|
(13)
|
||
|
Credits:
|
|
|||
|
(14)
|
Escrow
Balance
|
$
_______________
|
(14)
|
|
|
(15)
|
HIP
Refund
|
________________
|
(15)
|
|
|
(16)
|
Rental
Receipts
|
________________
|
(16)
|
|
|
(17)
|
Hazard
Loss Proceeds
|
________________
|
(17)
|
|
|
(18)
|
Primary
Mortgage Insurance Proceeds
|
________________
|
(18)
|
|
|
(19)
|
Pool
Insurance Proceeds
|
________________
|
(19)
|
|
|
(20)
|
Proceeds
from Sale of Acquired Property
|
________________
|
(20)
|
|
|
(21)
|
Other
(itemize)
|
________________
|
(21)
|
|
|
_________________________________________
|
_________________
|
|
||
|
_________________________________________
|
_________________
|
|
||
|
Total
Credits
|
$________________
|
(22)
|
||
|
Total
Realized Loss (or Amount of Gain)
|
$________________
|
(23)
|
||
EXHIBIT
FIVE
Servicing
Criteria to be Addressed in Assessment of Compliance
The
assessment of compliance to be delivered by [the Company] [Name of Subservicer]
shall address, at a minimum, the criteria identified as below as “Applicable
Servicing Criteria”:
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
|
General
Servicing Considerations
|
||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
X
|
|
Cash
Collection and Administration
|
||
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
X
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
X
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 45 (or to the extent reasonably required by the Purchaser,
30 calendar days) 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
|
5
-1
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
|
Investor
Remittances and Reporting
|
||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
X
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
X
|
|
Pool
Asset Administration
|
||
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the transaction
agreements or related mortgage loan documents.
|
X
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements.
|
X
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
X
|
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow) in
accordance with the related mortgage loan documents.
|
X
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
X
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor’s mortgage loans (e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
5
-2
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
|
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.
|
|
5
-3
