Exhibit 99.8(b)
EXECUTION COPY
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FIFTH AMENDED AND RESTATED
MORTGAGE LOAN SALE AND SERVICING AGREEMENT
between
GREENPOINT MORTGAGE FUNDING, INC.,
as Seller and as Servicer
and
XXXXXX XXXXXXX MORTGAGE CAPITAL INC.,
as Purchaser
Dated as of June 1, 2006
Conventional,
Fixed and Adjustable Rate,
Residential Mortgage Loans
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TABLE OF CONTENTS
Page
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Section 1 Definitions.................................................................................1
Section 2 Purchase and Conveyance....................................................................17
Section 3 Mortgage Loan Schedule.....................................................................17
Section 4 Purchase Price.............................................................................17
Section 5 Examination of Mortgage Files..............................................................18
Section 6 Delivery of Mortgage Loan Documents........................................................18
Subsection 6.01 Possession of Mortgage Files.................................................................18
Subsection 6.02 Books and Records............................................................................19
Subsection 6.03 Delivery of Mortgage Loan Documents..........................................................19
Subsection 6.04 MERS Designated Loans........................................................................20
Section 7 Representations, Warranties and Covenants; Remedies for Breach.............................20
Subsection 7.01 Representations and Warranties Regarding Individual Mortgage Loans...........................20
Subsection 7.02 Seller Representations.......................................................................34
Subsection 7.03 Remedies for Breach of Representations and Warranties........................................37
Subsection 7.04 Repurchase of Mortgage Loans with Early Payment Defaults.....................................39
Subsection 7.05 Premium Recapture............................................................................39
Section 8 Closing....................................................................................40
Section 9 Closing Documents..........................................................................40
Section 10 Costs......................................................................................41
Section 11 Administration and Servicing of the Mortgage Loans; Compliance with Regulation AB..........41
Subsection 11.01 Servicer to Act as Servicer; Intent of the Parties; Reasonableness...........................41
Subsection 11.02 Liquidation of Mortgage Loans................................................................43
Subsection 11.03 Collection of Mortgage Loan Payments.........................................................43
Subsection 11.04 Establishment of Custodial Account; Deposits in Custodial Account............................43
Subsection 11.05 Withdrawals From the Custodial Account.......................................................45
Subsection 11.06 Establishment of Escrow Account; Deposits in Escrow Account..................................46
Subsection 11.07 Withdrawals From Escrow Account..............................................................46
Subsection 11.08 Payment of Taxes, Insurance and Other Charges; Collections Thereunder........................47
Subsection 11.09 Transfer of Accounts.........................................................................48
Subsection 11.10 Maintenance of Hazard Insurance..............................................................48
Subsection 11.11 Fidelity Bond; Errors and Omissions Insurance................................................49
Subsection 11.12 Title, Management and Disposition of REO Property............................................49
Subsection 11.13 Servicing Compensation.......................................................................50
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Subsection 11.14 Distributions................................................................................50
Subsection 11.15 Statements to the Purchaser..................................................................51
Subsection 11.16 Advances by the Servicer.....................................................................52
Subsection 11.17 Assumption Agreements........................................................................52
Subsection 11.18 Satisfaction of Mortgages and Release of Mortgage Files......................................53
Subsection 11.19 Information to Be Provided by the Servicer in Compliance with Regulation AB..................53
Subsection 11.20 Annual Statement as to Compliance; Report on Assessment of Compliance and Attestation........59
Subsection 11.21 Annual Independent Public Accountants' Servicing Report or Attestation.......................60
Subsection 11.22 Servicer Shall Provide Access and Information as Reasonably Required.........................61
Subsection 11.23 Transfer of Servicing........................................................................61
Subsection 11.24 Use of Subservicers and Subcontractors.......................................................63
Section 12 The Servicer...............................................................................64
Subsection 12.01 Indemnification; Third Party Claims; Remedies................................................64
Subsection 12.02 Merger or Consolidation of the Servicer......................................................67
Subsection 12.03 Limitation on Liability of the Servicer and Others...........................................68
Subsection 12.04 Seller and Servicer Not to Resign............................................................68
Section 13 Default....................................................................................69
Subsection 13.01 Events of Default............................................................................69
Subsection 13.02 Waiver of Defaults...........................................................................70
Section 14 Termination................................................................................70
Subsection 14.01 Termination..................................................................................70
Subsection 14.02 Termination of the Servicer Without Cause....................................................71
Subsection 14.03 Successors to the Servicer...................................................................71
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Section 15 Cooperation of Seller with a Reconstitution................................................72
Section 16 Notices....................................................................................73
Section 17 Severability Clause........................................................................74
Section 18 No Partnership.............................................................................75
Section 19 Counterparts...............................................................................75
Section 20 Governing Law Jurisdiction; Consent to Service of Process..................................75
Section 21 Mandatory Delivery; Grant of Security Interest.............................................76
Section 22 Intention of the Parties...................................................................76
Section 23 Successors and Assigns.....................................................................77
Section 24 Waivers....................................................................................77
Section 25 Exhibits...................................................................................77
Section 26 General Interpretive Principles............................................................77
Section 27 Reproduction of Documents..................................................................78
Section 28 Amendment..................................................................................78
Section 29 Confidentiality............................................................................78
Section 30 Entire Agreement...........................................................................78
Section 31 Further Agreements.........................................................................78
Section 32 No Solicitation............................................................................79
Section 33 Waiver of Jury Trial.......................................................................79
Section 34 Third Party Beneficiary....................................................................79
EXHIBITS
EXHIBIT 1 MORTGAGE LOAN DOCUMENTS
EXHIBIT 2 CONTENTS OF EACH MORTGAGE FILE
EXHIBIT 3 FORM OF INDEMNIFICATION AND CONTRIBUTION AGREEMENT
EXHIBIT 4 FORM OF CUSTODIAL ACCOUNT CERTIFICATION
EXHIBIT 5 FORM OF CUSTODIAL ACCOUNT LETTER AGREEMENT
EXHIBIT 6 FORM OF ESCROW ACCOUNT CERTIFICATION
EXHIBIT 7 FORM OF ESCROW ACCOUNT LETTER AGREEMENT
EXHIBIT 8 SELLER'S UNDERWRITING GUIDELINES
EXHIBIT 9 FORM OF MONTHLY REMITTANCE REPORT
EXHIBIT 10 FORM OF SELLER'S OFFICER'S CERTIFICATE
EXHIBIT 11 FORM OF OPINION OF COUNSEL TO SELLER
EXHIBIT 12 FORM OF SECURITY RELEASE CERTIFICATION
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EXHIBIT 13 FORM OF SECURITY RELEASE CERTIFICATION
EXHIBIT 14 FORM OF ASSIGNMENT AND CONVEYANCE AGREEMENT
EXHIBIT 15 FORM OF ASSIGNMENT AND RECOGNITION AGREEMENT
EXHIBIT 16 FORM OF ANNUAL CERTIFICATION
EXHIBIT 17 SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF
COMPLIANCE
EXHIBIT 18 ADDITIONAL DISCLOSURE NOTIFICATION
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FIFTH AMENDED AND RESTATED
MORTGAGE LOAN SALE AND SERVICING AGREEMENT
THIS FIFTH AMENDED AND RESTATED MORTGAGE LOAN SALE AND SERVICING
AGREEMENT (the "Agreement"), dated as of June 1, 2006, is hereby executed by
and between XXXXXX XXXXXXX MORTGAGE CAPITAL INC., a New York corporation and
its successors and assigns (the "Purchaser"), and GREENPOINT MORTGAGE FUNDING,
INC., a New York corporation, in its capacity as seller (the "Seller") and in
its capacity as servicer (the "Servicer").
W I T N E S S E T H:
WHEREAS, the Purchaser and the Seller are parties to that certain
Mortgage Loan Sale and Servicing Agreement, dated as of September 1, 2003 (the
"Original Purchase Agreement"), the Seller desires to sell, from time to time,
to the Purchaser, and the Purchaser desires to purchase from the Seller,
certain conventional fixed and adjustable rate residential first-lien mortgage
loans (the "Mortgage Loans") on a servicing-retained basis as described
herein, which shall be delivered in pools of whole loans (each, a "Mortgage
Loan Package") on various dates as provided herein (each, a "Closing Date");
WHEREAS, at the present time, Purchaser and Seller desire to amend
and restate the Original Purchase Agreement, as amended by that certain
Amendment No. 1 to Mortgage Loan Sale and Servicing Agreement, dated as of
September 22, 2004, as amended and restated by that certain First Amended and
Restated Mortgage Loan Sale and Servicing Agreement, dated as of March 15,
2005, as further amended and restated by that certain Second Amended and
Restated Mortgage Loan Sale and Servicing Agreement, dated as of May 1, 2005,
as further amended and restated by that certain Third Amended and Restated
Mortgage Loan Sale and Servicing Agreement, dated as of September 1, 2005, and
as further amended and restated by that certain Fourth Amended and Restated
Mortgage Loan Sale and Servicing Agreement, dated as of December 1, 2005 to
make certain modifications as set forth herein.
NOW, THEREFORE, in consideration of the premises and mutual
agreements set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Purchaser,
the Seller and the Servicer agree as follows:
Section 1. Definitions. For purposes of this Agreement, the
following capitalized terms shall have the respective meanings set forth
below.
Accepted Servicing Procedures: Procedures (including collection
procedures) that the Servicer customarily employs and exercises in servicing
and administering mortgage loans for its own account that are similar to the
Mortgage Loans and which are in accordance with accepted mortgage servicing
practices of prudent lending institutions.
Adjustable Rate Mortgage Loan: A Mortgage Loan purchased pursuant
to this Agreement, the Mortgage Interest Rate of which is adjusted from time
to time in accordance with the terms of the related Mortgage Note.
Agency Transfer: A Xxxxxx Mae Transfer or a Xxxxxxx Mac Transfer.
Agreement: This Fifth Amended and Restated Mortgage Loan Sale and
Servicing Agreement including all exhibits, schedules, amendments and
supplements hereto.
ALTA: The American Land Title Association.
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 a Qualified Appraiser and (ii) the purchase price paid for the related
Mortgaged Property by the Mortgagor with the proceeds of the Mortgage Loan;
provided, however, that 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 a Qualified Appraiser.
Assignment of Mortgage: An individual assignment of the Mortgage,
notice of transfer or equivalent instrument in recordable form and in blank,
sufficient under the laws of the jurisdiction in which the related Mortgaged
Property is located to give record notice of the sale of the Mortgage to the
Purchaser.
Business Day: Any day other than a Saturday or Sunday, or a day on
which banking and savings and loan institutions in the state in which (i) the
Servicer is located or (ii) the Custodial Account is maintained, are
authorized or obligated by law or executive order to be closed.
Cash-Out Refinance: A Refinanced Mortgage Loan in which the
proceeds received were in excess of the amount of funds required to repay the
principal balance of any existing first mortgage on the related Mortgaged
Property, pay related closing costs and satisfy any outstanding subordinate
mortgages on the related Mortgaged Property and which provided incidental cash
to the related Mortgagor of more than 1% of the original principal balance of
such Mortgage Loan.
Closing Date: The date or dates on which the Purchaser from time
to time shall purchase, and the Seller from time to time shall sell, the
Mortgage Loans listed on the related Mortgage Loan Schedule with respect to
the related Mortgage Loan Package.
Closing Documents: The documents required to be delivered on each
Closing Date pursuant to Section 9.
CLTA: The California Land Title Association.
CLTV: As of any date and as to any Second Lien Loan, the ratio,
expressed as a percentage, of (a) the sum of (i) the outstanding principal
balance of the Second Lien Loan and
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(ii) the outstanding principal balance as of such date of any mortgage loan or
mortgage loans that are senior or equal in priority to the Second Lien Loan
and which are secured by the same Mortgaged Property to (b) the Appraised
Value as determined pursuant to the Underwriting Guidelines of the related
Mortgaged Property as of the origination of the Second Lien Loan.
Code: The Internal Revenue Code of 1986, as amended, or any
successor statute thereto.
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, to the extent not
required to be released to a Mortgagor in accordance with the terms of the
related Mortgage Loan Documents.
Co-op: A private, cooperative housing corporation, having only one
class of stock outstanding, which owns or leases land and all or part of a
building or buildings, including apartments, spaces used for commercial
purposes and common areas therein and whose board of directors authorizes the
sale of stock and the issuance of a Co-op Lease.
Co-op Lease: With respect to a Co-op Loan, the lease with respect
to a dwelling unit occupied by the Mortgagor and relating to the stock
allocated to the related dwelling unit.
Co-op Loan: A Mortgage Loan secured by the pledge of stock
allocated to a dwelling unit in a residential cooperative housing corporation
and a collateral assignment of the related Co-op Lease.
Covered Loan: A Mortgage Loan categorized as Covered pursuant to
Appendix E of Standard & Poor's Glossary.
Custodial Account: As defined in Subsection 11.04.
Custodial Agreement: The agreement governing the retention of the
originals of each Mortgage Note, Mortgage, Assignment of Mortgage and other
Mortgage Loan Documents. If more than one Custodial Agreement is in effect at
any given time, all of the Individual Custodial Agreements shall collectively
be referred to as the "Custodial Agreement."
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 provided therein.
Cut-off Date: The date or dates designated as such on the related
Mortgage Loan Schedule with respect to the related Mortgage Loan Package.
Cut-off Date Principal Balance: The aggregate Stated Principal
Balance of the Mortgage Loans as of the applicable Cut-off Date which is
determined after the application, to the reduction of principal, of payments
of principal due on or before such Cut-off Date, whether or not collected, and
of partial principal prepayments received before such Cut-off Date.
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Deemed Material and Adverse Representation: Each representation
and warranty identified as such in Subsection 7.01 of this Agreement.
Deleted Mortgage Loan: A Mortgage Loan replaced or to be replaced
with a Qualified Substitute Mortgage Loan in accordance with this Agreement.
Delinquent Mortgage Loan: As defined in Subsection 14.01(b).
Determination Date: With respect to each Remittance Date, the 15th
day (or, if such 15th day is not a Business Day, the following Business Day)
of the month in which such Remittance Date occurs.
Due Date: With respect to each Remittance Date, the first day of
the calendar month in which such Remittance Date occurs, which is the day on
which the Monthly Payment is due on a Mortgage Loan, exclusive of any days of
grace.
Due Period: With respect to each Remittance Date and any Mortgage
Loan, the period beginning on the second day of the month preceding such
Remittance Date through and including the first day of the month in which such
Remittance Date occurs.
Eligible Investments: At any time, any one or more of the
following obligations or securities:
(i) obligations of the United States or any agency thereof,
provided that such obligations are backed by the full faith and credit
of the United States;
(ii) general obligations of or obligations guaranteed by any state
of the United States or the District of Columbia receiving the highest
long-term debt rating of each Rating Agency, or such lower rating as
shall not result in the downgrading or withdrawal of the ratings then
assigned to the Certificates by the Rating Agencies, as evidenced by a
signed writing delivered by each Rating Agency;
(iii) commercial or finance company paper which is then receiving
the highest commercial or finance company paper rating of each Rating
Agency rating such paper, or such lower rating as shall not result in
the downgrading or withdrawal of the ratings then assigned to the
Certificates by the Rating Agencies, as evidenced by a signed writing
delivered by each Rating Agency;
(iv) certificates of deposit, demand or time deposits, or bankers'
acceptances issued by any depository institution or trust company
incorporated under the laws of the United States or of any state thereof
and subject to supervision and examination by federal and/or state
banking authorities, provided that the commercial paper and/or long-term
unsecured debt obligations of such depository institution or trust
company (or in the case of the principal depository institution in a
holding company system, the commercial paper or long-term unsecured debt
obligations of such holding company, but only if Xxxxx'x is not the
applicable Rating Agency) are then rated one of the two highest
long-term and the highest short-term ratings of each Rating Agency for
such securities, or such lower ratings as shall not result in the
downgrading or withdrawal of the ratings then
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assigned to the Certificates by the Rating Agencies, as evidenced by a
signed writing delivered by each Rating Agency;
(v) demand or time deposits or certificates of deposit issued by
any bank or trust company or savings institution to the extent that such
deposits are fully insured by the FDIC;
(vi) guaranteed reinvestment agreements issued by any bank,
insurance company or other corporation acceptable to the Rating Agencies
at the time of the issuance of such agreements, as evidenced by a signed
writing delivered by each Rating Agency;
(vii) repurchase obligations with respect to any security
described in clauses (i) and (ii) above, in either case entered into
with a depository institution or trust company (acting as principal)
described in clause (iv) above;
(viii) securities (other than stripped bonds, stripped coupons or
instruments sold at a purchase price in excess of 115% of the face
amount thereof) bearing interest or sold at a discount issued by any
corporation incorporated under the laws of the United States or any
state thereof which, at the time of such investment, have one of the two
highest ratings of each Rating Agency (except if the Rating Agency is
Moody's, such rating shall be the highest commercial paper rating of
Moody's for any such series), or such lower rating as shall not result
in the downgrading or withdrawal of the ratings then assigned to the
Certificates by the Rating Agencies, as evidenced by a signed writing
delivered by each Rating Agency;
(ix) interests in any money market fund which at the date of
acquisition of the interests in such fund and throughout the time such
interests are held in such fund has the highest applicable rating by
each Rating Agency rating such fund or such lower rating as shall not
result in a change in the rating then assigned to the Certificates by
each Rating Agency, as evidenced by a signed writing delivered by each
Rating Agency, including funds for which the Trustee, the Master
Servicer, the Securities Administrator or any of its Affiliates is
investment manager or adviser;
(x) short-term investment funds sponsored by any trust company or
national banking association incorporated under the laws of the United
States or any state thereof which on the date of acquisition has been
rated by each applicable Rating Agency in their respective highest
applicable rating category or such lower rating as shall not result in a
change in the then specified stated maturity, and bearing interest or
sold at a discount acceptable to each Rating Agency, as shall not result
in the downgrading or withdrawal of the ratings then assigned to the
Certificates by the Rating Agencies, as evidenced by a signed writing
delivered by each Rating Agency; and
(xi) such other investments having a specified stated maturity and
bearing interest or sold at a discount acceptable to the Rating Agencies
as shall not result in the downgrading or withdrawal of the ratings then
assigned to the Certificates by the Rating Agencies, as evidenced by a
signed writing delivered by each Rating Agency;
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provided, that no such instrument shall be an Eligible Investment if (i) such
instrument evidences the right to receive interest only payments with respect
to the obligations underlying such instrument or (ii) such instrument would
require the Depositor to register as an investment company under the
Investment Company Act of 1940, as amended.
Escrow Account: As defined in Subsection 11.06.
Escrow Payments: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, mortgage insurance premiums, fire and hazard insurance
premiums, condominium charges, and any other payments required to be escrowed
by the Mortgagor with the Mortgagee pursuant to the Mortgage or any other
document.
Event of Default: Any one of the conditions or circumstances
enumerated in Subsection 13.01.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Xxxxxx Mae: The Federal National Mortgage Association or any
successor thereto.
Xxxxxx Xxx Guides: The Xxxxxx Xxx Xxxxxxx' Guide and the Xxxxxx
Xxx Servicers' Guide and all amendments or additions thereto.
Xxxxxx Mae Transfer: As defined in Section 15.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
Fidelity Bond: The fidelity bond required to be obtained by the
Servicer pursuant to Subsection 11.11.
FIRREA: The Financial Institutions Reform, Recovery, and
Enforcement Act of 1989, as amended and in effect from time to time.
First Lien Loan: A Mortgage Loan secured by a first lien Mortgage
on the related Mortgage Property.
Fixed Rate Mortgage Loan: A fixed rate mortgage loan purchased
pursuant to this Agreement.
Xxxxxxx Mac: The Federal Home Loan Mortgage Corporation, or any
successor thereto.
Xxxxxxx Mac Transfer: As defined in Section 15.
Gross Margin: With respect to each Adjustable Rate Mortgage Loan,
the fixed percentage amount set forth in the related Mortgage Note which
amount is added to the Index in
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accordance with the terms of the related Mortgage Note to determine on each
Interest Rate Adjustment Date the Mortgage Interest Rate for such Mortgage
Loan.
High Cost Loan: A Mortgage Loan (a) covered by the Home Ownership
and Equity Protection Act of 1994 ("HOEPA"), (b) with an "annual percentage
rate" or total "points and fees" payable by the related Mortgagor (as each
such term is calculated under HOEPA) that exceed the thresholds set forth by
HOEPA and its implementing regulations, including 12 C.F.R. ss.
226.32(a)(1)(i) and (ii), (c) classified as a "high cost home," "threshold,"
"covered," "high risk home," "predatory" or similar loan under any other
applicable state, federal or local law (or a similarly classified loan using
different terminology under a law imposing heightened regulatory scrutiny or
additional legal liability for residential mortgage loans having high interest
rates, points and/or fees) or (d) a Mortgage Loan categorized as High Cost
pursuant to Appendix E of Standard & Poor's Glossary. For avoidance of doubt,
the parties agree that this definition shall apply to any law regardless of
whether such law is presently, or in the future becomes, the subject of
judicial review or litigation.
Home Loan: A Mortgage Loan categorized as a Home Loan pursuant to
Appendix E of Standard & Poor's Glossary.
HUD: The United States Department of Housing and Urban
Development, or any successor thereto.
Index: The index indicated in the related Mortgage Note for each
Adjustable Rate Mortgage Loan.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds
of insurance policies insuring the Mortgage Loan or the related Mortgaged
Property.
Interest Rate Adjustment Date: With respect to each Adjustable
Rate Mortgage Loan, the date, specified in the related Mortgage Note and the
related Mortgage Loan Schedule, on which the Mortgage Interest Rate is
adjusted.
Interim Funder: With respect to each MERS Designated Mortgage
Loan, the Person named on the MERS System as the interim funder pursuant to
the MERS Procedures Manual.
Investor: With respect to each MERS Designated Mortgage Loan, the
Person named on the MERS System as the investor pursuant to the MERS
Procedures Manual.
Lifetime Rate Cap: The provision of each Mortgage Note related to
an Adjustable Rate Mortgage Loan which provides for an absolute maximum
Mortgage Interest Rate thereunder. The Mortgage Interest Rate during the term
of each Adjustable Rate Mortgage Loan shall not at any time exceed the
Mortgage Interest Rate at the time of origination of such Adjustable Rate
Mortgage Loan by more than the amount per annum set forth on the related
Mortgage Loan Schedule.
Liquidation Proceeds: Amounts received in connection with the
partial or complete liquidation of a defaulted Mortgage Loan, whether through
the sale or assignment of
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such Mortgage Loan, trustee's sale, foreclosure sale or otherwise, or in
connection with the sale of the Mortgaged Property if the Mortgaged Property
is acquired in satisfaction of the Mortgage.
Loan-to-Value Ratio: With respect to any Mortgage Loan as of any
date of determination, the ratio, expressed as a percentage, the numerator of
which is the outstanding principal balance of such Mortgage Loan at
origination and the denominator of which is the Appraised Value of the related
Mortgaged Property.
LPMI Fee: With respect to each Mortgage Loan which has an LPMI
Policy, the portion of the Mortgage Interest Rate as set forth on the related
Mortgage Loan Schedule (which shall be payable solely from the interest
portion of Monthly Payments, Insurance Proceeds, Condemnation Proceeds or
Liquidation Proceeds), which, during such period prior to the required
cancellation of the LPMI Policy, shall be used to pay the premium due on the
related LPMI Policy.
LPMI Loan: Any Mortgage Loan with respect to which 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, as set
forth on the related Mortgage Loan Schedule.
LPMI Policy: A policy of primary mortgage guaranty insurance
issued by an insurer acceptable under the Underwriting Guidelines and
qualified to do business in the jurisdiction where the Mortgaged Property is
located, pursuant to which the related premium is to be paid by the Servicer
of the related Mortgage Loan from payments of interest made by the Mortgagor
in an amount as is set forth in the related Mortgage Loan Schedule.
LTV: Loan-to-Value Ratio.
Manufactured Home: A single family residential unit that is
constructed in a factory in sections in accordance with the Federal
Manufactured Home Construction and Safety Standards adopted on July 15, 1976,
by the Department of Housing and Urban Development ("HUD Code"), as amended in
2000, which preempts state and local building codes. Each unit is identified
by the presence of a HUD Plate/Compliance Certificate label. The sections are
then transported to the site and joined together and affixed to a pre-built
permanent foundation (which satisfies the manufacturer's requirements and all
state, county, and local building codes and regulations). The manufactured
home is built on a non-removable, permanent frame chassis that supports the
complete unit of walls, floors, and roof. The underneath part of the home may
have running gear (wheels, axles, and brakes) that enable it to be transported
to the permanent site. The wheels and hitch are removed prior to anchoring the
unit to the permanent foundation. The manufactured home must be classified as
real estate and taxed accordingly. The permanent foundation may be on land
owned by the mortgager or may be on leased land.
MERS: Mortgage Electronic Registration Systems, Inc., a Delaware
corporation, and its successors in interest.
MERS Designated Mortgage Loan: Mortgage Loans for which (a) the
Seller has designated or will designate MERS as, and has taken or will take
such action as is necessary to cause MERS to be, the mortgagee of record, as
nominee for the Seller, in accordance with
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MERS Procedures Manual and (b) the Seller has designated or will designate the
Purchaser as the Investor on the MERS System.
MERS Procedures Manual: The MERS Procedures Manual, as it may be
amended, supplemented or otherwise modified from time to time.
MERS Report: The report from the MERS System listing MERS
Designated Mortgage Loans and other information.
MERS System: MERS mortgage electronic registry system, as more
particularly described in the MERS Procedures Manual.
Monthly Payment: With respect to any Mortgage Loan, the scheduled
payment of principal and interest payable by a Mortgagor under the related
Mortgage Note on each Due Date.
Mortgage: With respect to a Mortgage Loan that is not a Co-op
Loan, the mortgage, deed of trust or other instrument securing a Mortgage
Note, which creates a first lien, in the case of a First Line Loan, or a
second lien, in the case of a Second Lien Loan, on the related Mortgaged
Property. With respect to a Co-op Loan, the Security Agreement.
Mortgage File: With respect to any Mortgage Loan, the items listed
in Exhibit 2 hereto and any additional documents required to be added to the
Mortgage File pursuant to this Agreement.
Mortgage Interest Rate: With respect to each Mortgage Loan, the
annual rate at which interest accrues on such Mortgage Loan from time to time
in accordance with the provisions of the related Mortgage Note.
Mortgage Loan: Each mortgage loan sold, assigned and transferred
pursuant to this Agreement and identified on the applicable Mortgage Loan
Schedule, which Mortgage Loan includes, without limitation, the Mortgage File,
the Monthly Payments, Principal Prepayments, Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds, REO Disposition Proceeds, and all
other rights, benefits, proceeds and obligations arising from or in connection
with such mortgage loan.
Mortgage Loan Documents: With respect to any Mortgage Loan, the
documents listed in Exhibit 1 hereto.
Mortgage Loan Package: Each pool of Mortgage Loans, which shall be
purchased by the Purchaser from the Seller from time to time on each Closing
Date.
Mortgage Loan Remittance Rate: With respect to each Mortgage Loan,
the annual rate of interest payable to the Purchaser, which shall be equal to
the related Mortgage Interest Rate minus the related Servicing Fee Rate.
Mortgage Loan Schedule: The schedule of Mortgage Loans setting
forth the following information with respect to each Mortgage Loan in the
related Mortgage Loan
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Package: (1) the Seller's Mortgage Loan identifying number; (2) the
Mortgagor's name; (3) the street address of the Mortgaged Property including
the city, state and zip code; (4) a code indicating whether the Mortgaged
Property is owner-occupied, investment property or a second home; (5) the
number and type of residential units constituting the Mortgaged Property (e.g.
single family residence, a two- to four-family dwelling, condominium, planned
unit development or cooperative); (6) the original months to maturity or the
remaining months to maturity from the related Cut-off Date, in any case based
on the original amortization schedule and, if different, the maturity
expressed in the same manner but based on the actual amortization schedule;
(7) the Loan-to-Value Ratio or CLTV, as applicable, at origination; (8) the
Mortgage Interest Rate as of the related Cut-off Date; (9) 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, the Due Date; (10) the
stated maturity date; (11) the amount of the Monthly Payment as of the related
Cut-off Date; (12) the last payment date on which a payment was actually
applied to the outstanding principal balance; (13) the original principal
amount of the Mortgage Loan; (14) the principal balance of the Mortgage Loan
as of the close of business on the related Cut-off Date, after deduction of
payments of principal due and collected on or before the related Cut-off Date;
(15) with respect to each First Lien Loan, the original principal balance of
the related second lien mortgage loan and, with respect to each Second Lien
Loan, the original principal balance of the related first lien loan; (16) a
code indicated whether there is a simultaneous second; (17) with respect to
Adjustable Rate Mortgage Loans, the Interest Rate Adjustment Date; (18) with
respect to Adjustable Rate Mortgage Loans, the Gross Margin; (19) with respect
to Adjustable Rate Mortgage Loans, the Lifetime Rate Cap; (20) with respect to
Adjustable Rate Mortgage Loans, a code indicating the type of Index; (21) the
type of Mortgage Loan (i.e., Fixed Rate, Adjustable Rate, First Lien Loan or
Second Lien Loan); (22) a code indicating the purpose of the loan (i.e.,
purchase, Rate/Term Refinance or Cash-Out Refinance); (23) a code indicating
the documentation style (i.e. no documents, full, alternative, reduced, no
income/no asset, stated income, no ration, reduced or NIV); (24) the loan
credit classification (as described in the Underwriting Guidelines); (25)
whether such Mortgage Loan provides for a Prepayment Penalty; (26) the
Prepayment Penalty period of such Mortgage Loan, if applicable; (27) a
description of the Prepayment Penalty, if applicable; (28) the Mortgage
Interest Rate as of origination; (29) the credit risk score (FICO score); (30)
the date of origination; (31) with respect to Adjustable Rate Mortgage Loans,
the Mortgage Interest Rate adjustment period; (32) with respect to Adjustable
Rate Mortgage Loans, the Mortgage Interest Rate adjustment percentage; (33)
with respect to Adjustable Rate Mortgage Loans, the Mortgage Interest Rate
floor; (34) the Mortgage Interest Rate calculation method (i.e., 30/360,
simple interest, other); (35) with respect to Adjustable Rate Mortgage Loans,
the Periodic Rate Cap as of the first Interest Rate Adjustment Date; (36) a
code indicating whether the Mortgage Loan by its original terms or any
modifications thereof provides for amortization beyond its scheduled maturity
date; (37) the original Monthly Payment due; (38) the Appraised Value; (39) a
code indicating whether the Mortgage Loan is covered by a PMI Policy and, if
so, identifying the PMI Policy provider; (40) a code indicating whether the
Mortgage Loan is covered by an LPMI Policy and, if so, identifying the LPMI
Policy provider; (39) in connection with a condominium unit, a code indicating
whether the condominium project where such unit is located is low-rise or
high-rise; (42) a code indicating whether the Mortgaged Property is a
leasehold estate; (43) the MERS Identification Number, if applicable; and (44)
a field indicating whether such Mortgage Loan is a Home Loan. With respect to
the Mortgage Loans in the aggregate, the related Mortgage Loan Schedule shall
set forth the following
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information, as of the related Cut-off Date: (1) the number of Mortgage Loans;
(2) the current aggregate outstanding principal balance of the Mortgage Loans;
(3) the weighted average Mortgage Interest Rate of the Mortgage Loans; (4) the
weighted average maturity of the Mortgage Loans; (5) the average principal
balance of the Mortgage Loans; (6) the applicable Cut-off Date; and (7) the
applicable Closing Date.
Mortgage Note: The original executed note or other evidence of the
Mortgage Loan indebtedness of a Mortgagor, including any riders or addenda
thereto.
Mortgaged Property: With respect to a Mortgage Loan that is not a
Co-op Loan, the Mortgagor's real property securing repayment of a related
Mortgage Note, consisting of an unsubordinated estate in fee simple or, with
respect to real property located in jurisdictions in which the use of
leasehold estates for residential properties is a widely-accepted practice, a
leasehold estate, in a single parcel or multiple parcels of real property
improved by a Residential Dwelling. With respect to a Co-op Loan, the stock
allocated to a dwelling unit in the residential cooperative housing
corporation that was pledged to secure such Co-op Loan and the related Co-op
Lease.
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, who is an owner of the
Mortgaged Property and the grantor or mortgagor named in the Mortgage and such
grantor's or mortgagor's successors in title to the Mortgaged Property.
NAIC: The National Association of Insurance Commissioners or any
successor thereto.
OCC: Office of the Comptroller of the Currency, or any successor
thereto.
Officer's Certificate: A certificate signed by the Chairman of the
Board, the Vice Chairman of the Board, a President or a Vice President and by
the Treasurer, the Secretary, or one of the Assistant Treasurers or the
Assistant Secretaries of the Person on behalf of whom such certificate is
being delivered.
Opinion of Counsel: A written opinion of counsel, who may be an
employee of the Seller or the Servicer, reasonably acceptable to the
Purchaser.
OTS: The Office of Thrift Supervision or any successor thereto.
Owner: As defined in Subsection 11.12.
P&I Advance: As defined in Subsection 11.16.
Periodic Rate Cap: With respect to each Adjustable Rate Mortgage
Loan, the provision of each Mortgage Note which provides for an absolute
maximum amount by which the Mortgage Interest Rate therein may increase or
decrease on an Interest Rate Adjustment Date above or below the Mortgage
Interest Rate previously in effect.
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Periodic Rate Floor: With respect to each Adjustable Rate Mortgage
Loan, the provision of each Mortgage Note which provides for an absolute
maximum amount by which the Mortgage Interest Rate therein may decrease on an
Interest Rate Adjustment Date below the Mortgage Interest Rate previously in
effect.
Person: An individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
PMI Policy: A policy of primary mortgage guaranty insurance issued
by an insurer acceptable under the Underwriting Guidelines and qualified to do
business in the jurisdiction where the Mortgaged Property is located.
Premium Percentage: With respect to any Mortgage Loan, a
percentage equal to the excess of the Purchase Price Percentage over 100%.
Prepayment Penalty: With respect to each Mortgage Loan, the
penalty if the Mortgagor prepays such Mortgage Loan as provided in the related
Mortgage Note or Mortgage.
Prime Rate: The prime rate announced to be in effect from time to
time, as published as the average rate in The Wall Street Journal (Northeast
edition).
Principal Prepayment: Any payment or other recovery of principal
on a Mortgage Loan which is received in advance of its scheduled Due Date,
including any prepayment penalty or premium thereon, 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
Purchaser to the Seller pursuant to this Agreement in exchange for the
Mortgage Loans purchased on such Closing Date, which shall be the percentage
of par (expressed as a decimal) set forth in the applicable Purchase Price and
Terms Letter times the applicable Cut-off Date Principal Balance.
Purchase Price Percentage: The percentage of par (expressed as
decimal) set forth in the related Purchase Price and Terms Letter.
Purchase Price Terms and Terms Letter: Those certain agreements
setting forth the general terms and conditions of the transactions consummated
herein and identifying the Mortgage Loans to be purchased from time to time
hereunder and thereunder, between the Seller and the Purchaser.
Purchaser: Xxxxxx Xxxxxxx Mortgage Capital Inc., a New York
corporation, and its successors in interest and assigns, or any successor to
the Purchaser under this Agreement as herein provided.
Qualified Appraiser: An appraiser, duly appointed by the Seller,
who had no interest, direct or indirect in the Mortgaged Property or in any
loan made on the security thereof, and whose compensation was not affected by
the approval or disapproval of the Mortgage Loan, and such appraiser and the
appraisal made by such appraiser both satisfied the requirements of
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Title XI of FIRREA and the regulations promulgated thereunder, all as in
effect on the date the Mortgage Loan was originated.
Qualified Correspondent: Any Person from which the Seller
purchased Mortgage Loans, provided that the following conditions are
satisfied: (i) such Mortgage Loans were originated pursuant to an agreement
between the Seller and such Person that contemplated that such Person would
underwrite mortgage loans from time to time, for sale to the Seller, in
accordance with underwriting guidelines designated by the Seller ("Designated
Guidelines") or guidelines that do not vary materially from such Designated
Guidelines; (ii) such Mortgage Loans were in fact underwritten as described in
clause (i) above and were acquired by the Seller within 180 days after
origination; (iii) either (x) the Designated Guidelines were, at the time such
Mortgage Loans were originated, used by the Seller in origination of mortgage
loans of the same type as the Mortgage Loans for the Seller's own account or
(y) the Designated Guidelines were, at the time such Mortgage Loans were
underwritten, designated by the Seller on a consistent basis for use by
lenders in originating mortgage loans to be purchased by the Seller; and (iv)
the Seller employed, at the time such Mortgage Loans were acquired by the
Seller, pre-purchased or post-purchased quality assurance procedures (which
may involve, among other things, review of a sample of mortgage loans
purchased during a particular time period or through particular channels)
designed to ensure that Persons from which it purchased mortgage loans
properly applied the underwriting criteria designated by the Seller.
Qualified Substitute Mortgage Loan: A mortgage loan eligible to be
substituted by the Seller for a Deleted Mortgage Loan which must, on the date
of such substitution, be approved by the Purchaser and (i) have an outstanding
principal balance, after deduction of all scheduled payments due in the month
of substitution (or in the case of a substitution of more than one mortgage
loan for a Deleted Mortgage Loan, an aggregate principal balance), not in
excess of the Stated Principal Balance of the Deleted Mortgage Loan (the
amount of any shortfall will be deposited in the Custodial Account by the
Seller in the month of substitution); (ii) have a Mortgage Interest Rate not
less than and not more than one percent (1%) greater than the Mortgage
Interest Rate of the Deleted Mortgage Loan; (iii) have a remaining term to
maturity not greater than and not more than one (1) year less than that of the
Deleted Mortgage Loan (iv) be of the same type as the Deleted Mortgage Loan
(i.e., fixed rate or adjustable rate with same Mortgage Interest Rate Cap and
Index); (v) comply as of the date of substitution with each representation and
warranty set forth in Subsection 7.01 of this Agreement; (vi) be current in
the payment of principal and interest; (vii) be secured by a Mortgaged
Property of the same type and occupancy status as secured the Deleted Mortgage
Loan; and (viii) have payment terms that do not vary in any material respect
from those of the Deleted Mortgage Loan.
Rate/Term Refinance: A Refinanced Mortgage Loan, in which the
proceeds received were not in excess of the amount of funds required to repay
the principal balance of any existing first mortgage loan on the related
Mortgaged Property, pay related closing costs and satisfy any outstanding
subordinate mortgages on the related Mortgaged Property and did not provide
incidental cash to the related Mortgagor of more than one percent (1%) of the
original principal balance of such Mortgage Loan.
Reconstitution: Any Securitization Transaction or Whole Loan
Transfer.
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Reconstitution Agreement: As defined in Section 15.
Record Date: The close of business of the last Business Day of the
month preceding the month of the related Remittance Date.
Refinanced Mortgage Loan: A Mortgage Loan 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. ss.ss.229.1100-229.1123, as 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
(January 7, 2005) or by the staff of the Commission, or as may be provided by
the Commission or its staff from time to time.
Remittance Date: No later than 1:00 p.m. New York time on the 18th
day of any month (or, if such 18th day is not a Business Day, the following
Business Day).
REO Disposition: The final sale by the Servicer of an REO
Property.
REO Disposition Proceeds: All amounts received with respect to an
REO Disposition pursuant to Subsection 11.12.
REO Property: A Mortgaged Property acquired by the Servicer
through foreclosure or deed in lieu of foreclosure, as described in Subsection
11.12.
Repurchase Price: With respect to any Mortgage Loan for which a
breach of a representation or warranty from the Agreement or the Interim
Servicing Agreement is found, a price equal to the then outstanding principal
balance of the Mortgage Loan to be repurchased, plus accrued interest thereon
at the Mortgage Interest Rate from the date to which interest had last been
paid through the date of such repurchase, plus the amount of any outstanding
advances owed to any servicer, and plus all costs and expenses incurred by the
Purchaser or any servicer arising out of or based upon such breach, including
without limitation costs and expenses incurred in the enforcement of the
Seller's repurchase obligation hereunder, and plus, in the event a Mortgage
Loan is repurchased during the first twelve months following the related
Closing Date, an amount equal to the Premium Percentage multiplied by the
outstanding principal balance of such Mortgage Loan as of the date of such
repurchase.
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 condominium project, or (iv) a one-family
dwelling in a planned unit development, none of which is a co-operative,
mobile or Manufactured Home.
Second Lien Loan: A Mortgage Loan secured by a second lien
Mortgage on the related Mortgaged Property.
Securities Act: The federal Securities Act of 1933, as amended.
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Securitization Transaction: Any transaction involving either (i) a
sale or transfer of some or all of the Mortgage Loans directly or indirectly
to an issuing entity in connection with the issuance of publicly offered or
privately placed, rated or unrated mortgage-backed securities or (ii) 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.
Security Agreement: The agreement creating a security interest in
the stock allocated to a dwelling unit in the residential cooperative housing
corporation that was pledged to secure such Co-op Loan and the related Co-op
Lease.
Seller: As defined in the initial paragraph of this Agreement,
together with its successors in interest.
Servicer: As defined in the initial paragraph of this Agreement,
together with its successors and assigns as permitted under the terms of this
Agreement.
Servicing Advances: All customary, reasonable and necessary
out-of-pocket costs and expenses incurred in the performance by the Servicer
of its servicing obligations, including, but not limited to, the cost of (i)
the preservation, restoration and protection of the Mortgaged Property, (ii)
any enforcement or judicial proceedings, including foreclosures, (iii) the
management and liquidation of the Mortgaged Property if the Mortgaged Property
is acquired in satisfaction of the Mortgage, and (iv) payments made by the
Servicer with respect to a Mortgaged Property pursuant to Subsection 11.08.
Servicing Criteria: The "servicing criteria" set forth in Item
1122(d) of Regulation AB, as may be amended from time to time.
Servicing Fee: With respect to each Mortgage Loan, the amount of
the annual fee the Purchaser shall pay to the Servicer, which shall, for each
month, be equal to one-twelfth of (i) the product of the Servicing Fee Rate
and (ii) the unpaid principal balance of such Mortgage Loan. Such fee shall be
payable monthly, computed on the basis of the same principal amount and period
respecting which any related interest payment on a Mortgage Loan is computed,
and shall be pro rated (based upon the number of days of the related month the
Servicer so acted as Servicer relative to the number of days in that month)
for each part thereof. 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 related Monthly
Payments collected by the Servicer, or as otherwise provided under Subsection
11.05.
Servicing Fee Rate: With respect to each Mortgage Loan, the per
annum rate set forth in the applicable Purchase Price and Terms Letter.
Servicing Officer: Any officer of the Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name appears on a list of servicing officers furnished to the Purchaser by the
Servicer, as such list may be amended from time to time.
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Sponsor: The person who organizes and initiates an asset-backed
securities transaction by selling or transferring assets, either directly or
indirectly, including through an affiliate, to the issuing entity.
Standard & Poor's: Standard & Poor's Ratings Services, a division
of The XxXxxx-Xxxx Companies Inc., and any successor thereto.
Standard & Poor's Glossary: The Standard & Poor's LEVELS(R)
Glossary, as may be in effect from time to time.
Stated Principal Balance: As to each Mortgage Loan as to any date
of determination, (i) the principal balance of the Mortgage Loan at the
related Cut-off Date after giving effect to payments of principal due on or
before such date, whether or not received, minus (ii) all amounts previously
distributed to the Purchaser with respect to the related Mortgage Loan
representing payments or recoveries of principal, or advances in lieu thereof
on such Mortgage Loan.
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 Servicer or a Subservicer.
Subservicer: Any Person that services Mortgage Loans on behalf of
the Servicer or any Subservicer and is responsible for the performance
(whether directly or through Subservicers or Subcontractors) of a substantial
portion of the material servicing functions required to be performed by the
Servicer under this Agreement or any Reconstitution Agreement that are
identified in Item 1122(d) of Regulation AB.
Third-Party Originator: Each Person, other than a Qualified
Correspondent, that originated Mortgage Loans acquired by the Seller.
Transfer Date: In the event the Servicer is terminated as servicer
of a Mortgage Loan pursuant to Subsections 12.04, 13.01, 14.01(c) or 14.02,
the date on which the Purchaser, or its designee, shall receive the transfer
of servicing responsibilities and begin to perform the servicing of such
Mortgage Loans, and the Seller, as Servicer, shall cease all servicing
responsibilities.
Underwriting Guidelines: The underwriting guidelines of the
Seller, a copy of which is attached hereto as Exhibit 8 and a then-current
copy of which shall be attached as an exhibit to the related Assignment and
Conveyance.
Whole Loan Transfer: The sale or transfer by the Purchaser of some
or all of the Mortgage Loans, other than a Securitization Transaction.
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Section 2. Purchase and Conveyance. The Seller agrees to sell from
time to time, and the 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 Purchase Price and Terms Letter, or in such
other amount as agreed by the Purchaser and the Seller as evidenced by the
actual aggregate principal balance of the Mortgage Loans accepted by the
Purchaser on each Closing Date, together with the related Mortgage Files and
all rights and obligations arising under the documents contained therein. The
Seller, simultaneously with the delivery of the Mortgage Loan Schedule with
respect to the related Mortgage Loan Package to be purchased on each Closing
Date, shall execute and deliver an Assignment and Conveyance Agreement in the
form attached hereto as Exhibit 14 (the "Assignment and Conveyance
Agreement").
With respect to each Mortgage Loan purchased, the Purchaser shall
own and be entitled to receive: (a) all scheduled principal due after the
related Cut-off Date, (b) all other payments and/or recoveries of principal
collected after the related Cut-off Date, including any Prepayment Penalties
(provided, however, that all scheduled payments of principal due on or before
the related Cut-off Date and collected by the Servicer after the related
Cut-off Date shall belong to the Seller), and (c) all payments of interest on
the Mortgage Loans net of the Servicing Fee (minus that portion of any such
interest payment that is allocable to the period prior to the related Cut-off
Date).
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 reduce the Stated 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 remit to the Servicer for
deposit any such prepaid amounts into the Custodial Account, which account is
established for the benefit of the Purchaser, for remittance by the Servicer
to the Purchaser on the appropriate Remittance Date. All payments of principal
and interest, less the applicable Servicing Fee, due on a Due Date following
the related Cut-off Date shall belong to the Purchaser.
Section 3. Mortgage Loan Schedule. The Seller from time to time
shall provide the Purchaser with certain information constituting a
preliminary listing of the Mortgage Loans to be purchased on each Closing Date
in accordance with the related Purchase Price and Terms Letter and this
Agreement (each, a "Preliminary Mortgage Schedule").
The Seller shall deliver the related Mortgage Loan Schedule for
the Mortgage Loans to be purchased on a particular Closing Date to the
Purchaser at least five (5) Business Days prior to the related Closing Date.
The Mortgage Loan Schedule shall be the related Preliminary Mortgage Schedule
with those Mortgage Loans which have not been funded prior to the related
Closing Date deleted.
Section 4. Purchase Price. Subject to the conditions set forth
herein, the Purchaser shall pay the Purchase Price plus accrued interest on
the Stated Principal Balance of each Mortgage Loan as of the applicable
Cut-off Date at its Mortgage Loan Remittance Rate from the related Cut-off
Date through the day prior to the related Closing Date, both inclusive, to
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the Seller on the related Closing Date. Such payment shall be made by wire
transfer of immediately available funds to the account designated by the
Seller.
Section 5. Examination of Mortgage Files. At least ten (10)
Business Days prior to the related Closing Date, the Seller shall either (a)
deliver to the Purchaser or its designee in escrow, for examination with
respect to each Mortgage Loan to be purchased, the related Mortgage File,
including a copy of the Assignment of Mortgage (for Mortgage Loans that are
not MERS Designated Mortgage Loans), pertaining to each Mortgage Loan, or (b)
make the related Mortgage File available to the Purchaser for examination at
such other location as shall otherwise be acceptable to the Purchaser. Such
examination of the Mortgage Files may be made by the Purchaser or its designee
at any reasonable time before or after the related Closing Date. If the
Purchaser makes such examination prior to the related Closing Date and
determines, in its sole discretion, that any Mortgage Loans do not conform to
any of the requirements set forth in the related Purchase Price and Terms
Letter, or as an Exhibit annexed thereto, the Purchaser may delete such
Mortgage Loans from the related Mortgage Loan Schedule, and such Deleted
Mortgage Loan (or Loans) may be replaced by a Qualified Substitute Mortgage
Loan (or Loans) acceptable to the Purchaser. The Purchaser may, at its option
and without notice to the Seller, purchase some or all of the Mortgage Loans
without conducting any partial or complete examination. The fact that the
Purchaser or its designee has conducted or has failed to conduct any partial
or complete examination of the Mortgage Files shall not impair in any way the
Purchaser's (or any of its successor's) rights to demand repurchase,
substitution or other remedy as provided in this Agreement. In the event that
the Seller fails to deliver the Mortgage File with respect to any Mortgage
Loan, the Seller shall, upon the request of the Purchaser, repurchase such
Mortgage Loan as the price and in the manner specified in Subsection 7.03.
Upon the consent of the Purchaser, the Seller shall make available to the
Purchaser in digital format on compact disks or DVDs, selected Mortgage Loans
and the related Mortgage File which shall include, without limitation, imaged
documents required by the Purchaser to conduct an examination of the Mortgage
File.
Section 6. Delivery of Mortgage Loan Documents.
Subsection 6.01 Possession of Mortgage Files. The contents of each
Mortgage File required to be retained by or delivered to the Servicer to
service the Mortgage Loans pursuant to this Agreement and thus not delivered
to the Purchaser, or its designee, are and shall be held in trust by the
Servicer for the benefit of the Purchaser as the owner thereof. The Servicer's
possession of any portion of each such Mortgage File is at the will of the
Purchaser for the sole purpose of facilitating servicing of the Mortgage Loans
pursuant to this Agreement, and such retention and possession by the Servicer
shall be in a custodial capacity only. The ownership of each Mortgage Note,
each Mortgage and the contents of each Mortgage File is vested in the
Purchaser and the ownership of all records and documents with respect to the
related Mortgage Loan prepared by or which come into the possession of the
Servicer shall immediately vest in the Purchaser and shall be retained and
maintained, in trust, by the Servicer at the will of the Purchaser in such
custodial capacity only. The Mortgage File retained by the Servicer with
respect to each Mortgage Loan pursuant to this Agreement shall be
appropriately identified in the Servicer's computer system to reflect clearly
the sale of such related Mortgage Loan to the Purchaser. The Servicer shall
release from its custody the contents of any Mortgage
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File retained by it only in accordance with this Agreement, except when such
release is required in connection with a repurchase of any such Mortgage Loan
pursuant to Subsection 7.03 or if required under applicable law or court
order.
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; provided, however, that if a Mortgage has been recorded in
the name of MERS or its designee, the Seller is shown as the owner of the
related Mortgage Loan on the records of MERS for purposes of the system of
recording transfers of beneficial ownership of mortgages maintained by MERS.
Notwithstanding the foregoing, 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
Servicer after the related Cut-off Date on or in connection with a Mortgage
Loan as provided in Section 2 shall be vested in the Purchaser; provided,
however, that all such funds received on or in connection with a Mortgage Loan
as provided in Section 2 shall be received and held by the Servicer in trust
for the benefit of the Purchaser as the owner of the Mortgage Loans pursuant
to the terms of this Agreement.
It is the express intention of the parties that the transactions
contemplated by this Agreement be, and be construed as, a sale of the related
Mortgage Loans by the Seller and not a pledge of such 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 purchase
on the Purchaser's business records, tax returns and financial statements, and
as a sale of assets on the Seller's business records, tax returns and
financial statements.
Subsection 6.03 Delivery of Mortgage Loan Documents. The Seller
shall, at least two (2) Business Days prior to the related Closing Date (or
such later date as the Purchaser may reasonably request), deliver and release
to the Purchaser, or its designee, the Mortgage Loan Documents with respect to
each Mortgage Loan pursuant to a bailee letter agreement. In connection with
the foregoing, the Seller shall indemnify the Purchaser and its present and
former directors, officers, employees and agents, and hold such parties
harmless against any losses, damages, penalties, fines, forfeitures, legal
fees and expenses and related costs, judgments, and other costs and expenses
based on or grounded upon, or resulting from, the fact that no Mortgage Loan
is covered by an ALTA or CLTA lender's title insurance policy. For purposes of
the previous sentence, "Purchaser" shall mean the Person then acting as the
Purchaser under this Agreement and any and all Persons who previously were
"Purchasers" under this Agreement.
To the extent received by it, the Servicer shall forward to the
Purchaser, or its designee, original documents evidencing an assumption,
modification, consolidation or extension of any Mortgage Loan entered into in
accordance with this Agreement within two (2) weeks after their execution;
provided, however, that the Servicer shall provide the Purchaser, or its
designee, with a copy, certified by the Servicer as a true copy, of any such
document submitted for recordation within two (2) weeks after 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 (2) weeks following
receipt of the original document by the Servicer; provided, however, that such
original
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recorded document or certified copy thereof shall be delivered to the
Purchaser no later than 180 days following the related Closing Date, unless
there has been a delay at the applicable recording office.
If the original or copy of any document submitted for recordation
to the appropriate public recording office is not delivered to the Purchaser
or its designee within 180 days following the related Closing Date, the
related Mortgage Loan shall, upon the request of the Purchaser, be repurchased
by the Seller at the price and in the manner specified in Subsection 7.03. The
foregoing repurchase obligation shall not apply if the Seller cannot cause the
Servicer to deliver such original or copy of any document submitted for
recordation to the appropriate public recording office within the specified
period due to a delay caused by the recording office in the applicable
jurisdiction; provided that (i) the Servicer shall instead deliver a recording
receipt of such recording office or, if such recording receipt is not
available, an officer's certificate of a servicing officer of the Servicer,
confirming that such document has been accepted for recording, and (ii) such
document is delivered within twelve (12) months of the related Closing Date.
The Seller shall pay all initial recording fees, if any, for the
Assignments of Mortgage and any other fees or costs in transferring all
original documents to the Custodian or, upon written request of the Purchaser,
to the Purchaser or the Purchaser's designee. The Purchaser or the Purchaser's
designee shall be responsible for recording the Assignments of Mortgage and
shall be reimbursed by the Seller for the costs associated therewith pursuant
to the preceding sentence.
Subsection 6.04 MERS Designated Loans. With respect to each MERS
Designated Mortgage Loan, the Seller shall, on or prior to the related Closing
Date, designate the Purchaser as the Investor and the Custodian as custodian,
and no Person shall be listed as Interim Funder on the MERS System. In
addition, on or prior to the related Closing Date, Seller shall provide the
Custodian and the Purchaser with a MERS Report listing the Purchaser as the
Investor, the Custodian as custodian and no Person listed as Interim Funder
with respect to each MERS Designated Mortgage Loan.
Section 7. Representations, Warranties and Covenants; Remedies for
Breach.
Subsection 7.01 Representations, Warranties and Covenants
Regarding Individual Mortgage Loans. The Seller hereby represents and warrants
to the Purchaser that, as to each Mortgage Loan, as of the related Closing
Date or such other date specified herein:
(a) Mortgage Loans as Described. The information set forth
in the related Mortgage Loan Schedule is complete, true and correct;
(b) Payments Current. All payments required to be made up to
the related Closing Date for the Mortgage Loan under the terms of the Mortgage
Note have been made and credited. No payment required under the Mortgage Loan
is 30 days or more delinquent nor has any payment under the Mortgage Loan been
30 days or more delinquent at any time since the origination of the Mortgage
Loan;
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(c) No Outstanding Charges. There are no defaults in
complying with the terms of the Mortgage, and all taxes, governmental
assessments, insurance premiums, water, sewer and municipal charges, leasehold
payments or ground rents which previously became due and owing have been paid,
or an escrow of funds has been established in an amount sufficient to pay for
every such item which remains unpaid and which has been assessed but is not
yet due and payable. The Seller has not advanced funds, or induced, solicited
or knowingly received any advance of funds by a party other than the
Mortgagor, directly or indirectly, for the payment of any amount required
under the Mortgage Loan, except for interest accruing from the date of the
Mortgage Note or date of disbursement of the Mortgage Loan proceeds, whichever
is earlier, to the day which precedes by one month the related Due Date of the
first installment of principal and interest;
(d) Original Terms Unmodified. The terms of the Mortgage
Note and Mortgage have not been impaired, waived, altered or modified in any
respect, from the date of origination except by a written instrument which has
been recorded, if necessary to protect the interests of the Purchaser, and
which has been delivered to the Custodian or to such other Person as the
Purchaser shall designate in writing, and the terms of which are reflected in
the related Mortgage Loan Schedule. The substance of any such waiver,
alteration or modification has been approved by the issuer of any related PMI
Policy and the title insurer, if any, to the extent required by the policy,
and its terms are reflected on the related Mortgage Loan Schedule, if
applicable. No Mortgagor has been released, in whole or in part, except in
connection with an assumption agreement, approved by the issuer of any related
PMI Policy and the title insurer, to the extent required by the policy, and
which assumption agreement is part of the Mortgage Loan File delivered to the
Custodian or to such other Person as the Purchaser shall designate in writing
and the terms of which are reflected in the related Mortgage Loan Schedule;
(e) No Defenses. The Mortgage Loan is not subject to any
right of rescission, set-off, counterclaim or defense, including without
limitation the defense of usury, nor will the operation of any of the terms of
the Mortgage Note or the Mortgage, or the exercise of any right thereunder,
render either the Mortgage Note or the Mortgage unenforceable, in whole or in
part, or subject to any right of rescission, set-off, counterclaim or defense,
including without limitation the defense of usury, and no such right of
rescission, set-off, counterclaim or defense has been asserted with respect
thereto;
(f) Hazard Insurance. Pursuant to the terms of the Mortgage,
all buildings or other improvements upon the Mortgaged Property are insured by
a generally acceptable insurer against loss by fire, hazards of extended
coverage and such other hazards as are provided for in the Underwriting
Guidelines. If required by the National Flood Insurance Act of 1968, as
amended, each Mortgage Loan is covered by a flood insurance policy meeting the
requirements of the current guidelines of the Federal Insurance Administration
as in effect which policy conforms with the Underwriting Guidelines. All
individual insurance policies contain a standard mortgagee clause naming the
Seller and its successors and assigns as mortgagee, and all premiums thereon
have been paid. The Mortgage obligates the Mortgagor thereunder to maintain
the hazard insurance policy at the Mortgagor's cost and expense, and on the
Mortgagor's failure to do so, authorizes the holder of the Mortgage to obtain
and maintain such insurance at such Mortgagor's cost and expense, and to seek
reimbursement therefor from the Mortgagor. Where required by state law or
regulation, the Mortgagor has been given an
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opportunity to choose the carrier of the required hazard insurance, provided
the policy is not a "master" or "blanket" hazard insurance policy covering a
condominium, or any hazard insurance policy covering the common facilities of
a planned unit development. The hazard insurance policy is the valid and
binding obligation of the insurer, is in full force and effect, and will be in
full force and effect and inure to the benefit of the Purchaser upon the
consummation of the transactions contemplated by this Agreement. The Seller
has not engaged in, and has no knowledge of the Mortgagor's having engaged in,
any act or omission which would impair the coverage of any such policy, the
benefits of the endorsement provided for herein, or the validity and binding
effect of either including, without limitation, no unlawful fee, commission,
kickback or other unlawful compensation or value of any kind has been or will
be received, retained or realized by any attorney, firm or other person or
entity, and no such unlawful items have been received, retained or realized by
the Seller;
(g) Compliance with Applicable Laws. Any and all
requirements of any federal, state or local law including, without limitation,
usury, truth-in-lending, real estate settlement procedures, consumer credit
protection, predatory, abusive and fair lending, equal credit opportunity and
disclosure laws applicable to the Mortgage Loan, including, without
limitation, any provisions relating to a Prepayment Penalty, have been
complied with, the consummation of the transactions contemplated hereby will
not involve the violation of any such laws or regulations, and the Seller
shall maintain in its possession, available for the Purchaser's inspection,
and shall deliver to the Purchaser upon demand, evidence of compliance with
all such requirements. This representation and warranty is a Deemed Material
and Adverse Representation;
(h) No Satisfaction of Mortgage. The Mortgage has not been
satisfied, canceled, subordinated or rescinded, in whole or in part, and the
Mortgaged Property has not been released from the lien of the Mortgage, in
whole or in part, nor has any instrument been executed that would effect any
such release, cancellation, subordination or rescission. The Seller has not
waived the performance by the Mortgagor of any action, if the Mortgagor's
failure to perform such action would cause the Mortgage Loan to be in default,
nor has the Seller waived any default resulting from any action or inaction by
the Mortgagor;
(i) Type of Mortgaged Property. With respect to a Mortgage
Loan that is not a Co-op Loan and is not secured by an interest in a leasehold
estate, the Mortgaged Property is a fee simple estate that consists of a
single parcel of real property with a detached single family residence erected
thereon, or a two- to four-family dwelling, or an individual residential
condominium unit in a condominium project, or an individual unit in a planned
unit development, (or, with respect to each Co-op Loan, an individual unit in
a residential cooperative housing corporation); provided, however, that any
condominium unit, planned unit development or residential cooperative housing
corporation shall conform with the Underwriting Guidelines. No portion of the
Mortgaged Property (or underlying Mortgaged Property, in the case of a Co-op
Loan) is used for commercial purposes, and since the date of origination, no
portion of the Mortgaged Property has been used for commercial purposes;
provided, that Mortgaged Properties which contain a home office shall not be
considered as being used for commercial purposes as long as the Mortgaged
Property has not been altered for commercial purposes and is not storing any
chemicals or raw materials other than those commonly used for homeowner
repair, maintenance and/or household purposes. None of the Mortgaged
Properties are
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Manufactured Homes, log homes, mobile homes, geodesic domes or other unique
property types. This representation and warranty is a Deemed Material and
Adverse Representation;
(j) Valid First or Second Lien. The Mortgage is a valid,
subsisting, enforceable and perfected, first lien (with respect to a First
Lien Loan) or second lien (with respect to a Second Lien Loan) on the
Mortgaged Property, including all buildings and improvements on the Mortgaged
Property and all additions, alterations and replacements made at any time with
respect to the foregoing. The lien of the Mortgage is subject only to:
(i) with respect to a Second Lien Loan only, the lien on the
first mortgage on the Mortgaged Property;
(ii) the lien of current real property taxes and assessments
not yet due and payable;
(iii) covenants, conditions and restrictions, rights of way,
easements and other matters of the public record as of the date of
recording acceptable to prudent mortgage lending institutions
generally and specifically referred to in the lender's title
insurance policy delivered to the originator of the Mortgage Loan
and (a) specifically referred to or otherwise considered in the
appraisal made for the originator of the Mortgage Loan or (b)
which do not adversely affect the Appraised Value of the Mortgaged
Property set forth in such appraisal; and
(iv) other matters to which like properties are commonly
subject which do not materially interfere with the benefits of the
security intended to be provided by the Mortgage or the use,
enjoyment, value or marketability of the related Mortgaged
Property.
Any security agreement, chattel mortgage or equivalent
document related to and delivered in connection with the Mortgage Loan
establishes and creates a valid, subsisting, enforceable and perfected first
lien (with respect to a First Lien Loan) or second lien (with respect to a
Second Lien Loan) and first priority (with respect to a First Lien Loan) or
second priority (with respect to a Second Lien Loan) security interest on the
property described therein and the Seller has full right to sell and assign
the same to the Purchaser.
With respect to any Co-op Loan, the related Mortgage is a
valid, subsisting and enforceable first priority security interest on the
related cooperative shares securing the Mortgage Note, subject only to (a)
liens of the related residential cooperative housing corporation for unpaid
assessments representing the Mortgagor's pro rata share of the related
residential cooperative housing corporation's payments for its blanket
mortgage, current and future real property taxes, insurance premiums,
maintenance fees and other assessments to which like collateral is commonly
subject and (b) other matters to which like collateral is commonly subject
which do not materially interfere with the benefits of the security interest
intended to be provided by the related Security Agreement;
(k) Validity of Mortgage Documents. The Mortgage Note and
the Mortgage and any other agreement executed and delivered by a Mortgagor in
connection with a Mortgage Loan are genuine, and each is the legal, valid and
binding obligation of the maker thereof
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enforceable in accordance with its terms. All parties to the Mortgage Note,
the Mortgage and any other such related agreement had legal capacity to enter
into the Mortgage Loan and to execute and deliver the Mortgage Note, the
Mortgage and any such agreement, and the Mortgage Note, the Mortgage and any
other such related agreement have been duly and properly executed by other
such related parties. No fraud, error, omission, misrepresentation, negligence
or similar occurrence with respect to a Mortgage Loan has taken place on the
part of the Seller in connection with the origination of the Mortgage Loan or
in the application of any insurance in relation to such Mortgage Loan. The
documents, instruments and agreements submitted for loan underwriting were not
falsified and contain no untrue statement of material fact or omit to state a
material fact required to be stated therein or necessary to make the
information and statements therein not misleading. No fraud, error, omission,
misrepresentation, negligence 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 for any
insurance in relation to such Mortgage Loan. The Seller has reviewed all of
the documents constituting the Servicing File and has made such inquiries as
it deems necessary to make and confirm the accuracy of the representations set
forth herein;
(l) Full Disbursement of Proceeds. The Mortgage Loan has been
closed and the proceeds of the Mortgage Loan have been fully disbursed and
there is no requirement for future advances thereunder, and any and all
requirements as to completion of any on-site or off-site improvement and as to
disbursements of any escrow funds therefor have been complied with. All costs,
fees and expenses incurred in making or closing the Mortgage Loan and the
recording of the Mortgage were paid, and the Mortgagor is not entitled to any
refund of any amounts paid or due under the Mortgage Note or Mortgage;
(m) Ownership. The Seller is the sole owner of record and holder
of the Mortgage Loan and the indebtedness evidenced by each Mortgage Note and
upon the sale of the Mortgage Loans to the Purchaser, the Seller will retain
the Mortgage Files or any part thereof with respect thereto not delivered to
the Custodian, the Purchaser or the Purchaser's designee, in trust only for
the purpose of servicing and supervising the servicing of each Mortgage Loan.
The Mortgage Loan is not assigned or pledged, and the Seller has good,
indefeasible and marketable title thereto, and has full right to transfer and
sell the Mortgage Loan to the Purchaser free and clear of any encumbrance,
equity, participation interest, lien, pledge, charge, claim or security
interest, and has full right and authority subject to no interest or
participation of, or agreement with, any other party, to sell and assign each
Mortgage Loan pursuant to this Agreement and following the sale of each
Mortgage Loan, the Purchaser will own such Mortgage Loan free and clear of any
encumbrance, equity, participation interest, lien, pledge, charge, claim or
security interest. The Seller intends to relinquish all rights to possess,
control and monitor the Mortgage Loan. After the related Closing Date, the
Seller will have no right to modify or alter the terms of the sale of the
Mortgage Loan and the Seller will have no obligation or right to repurchase
the Mortgage Loan or substitute another Mortgage Loan, except as provided in
this Agreement;
(n) Doing Business. All parties which have had any interest in the
Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise, are (or,
during the period in which they held and disposed of such interest, were) (1)
in compliance with any and all applicable licensing requirements of the laws
of the state wherein the Mortgaged Property is located, and
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(2) either (i) organized under the laws of such state, or (ii) qualified to do
business in such state, or (iii) a federal savings and loan association, a
savings bank or a national bank having a principal office in such state, or
(3) not doing business in such state;
(o) CLTV, LTV, PMI Policy. No Mortgage Loan that is a Second Lien
Loan has a CLTV greater than 100%. No Mortgage Loan has an LTV greater than
100%. Any Mortgage Loan that had at the time of origination an LTV in excess
of 80% is insured as to payment defaults by a PMI Policy. Any PMI Policy in
effect covers the related Mortgage Loan for the life of such Mortgage Loan,
subject to applicable law. All provisions of such PMI Policy have been and are
being complied with, such policy is in full force and effect, and all premiums
due thereunder have been paid. No action, inaction, or event has occurred and
no state of facts exists that has, or will result in the exclusion from,
denial of, or defense to coverage. Any Mortgage Loan subject to a PMI Policy
obligates the Mortgagor thereunder to maintain the PMI Policy and to pay all
premiums and charges in connection therewith. The Mortgage Interest Rate for
the Mortgage Loans as set forth on the related Mortgage Loan Schedule is net
of any PMI Policy insurance premium or LPMI Fee if the related LPMI Policy is
lender-paid;
(p) Title Insurance. With respect to a Mortgage Loan which is not
a Co-op Loan, the Mortgage Loan is covered by an ALTA lender's title insurance
policy or other generally acceptable form of policy or insurance acceptable
under the Underwriting Guidelines and each such title insurance policy is
issued by a title insurer acceptable under the Underwriting Guidelines and
qualified to do business in the jurisdiction where the Mortgaged Property is
located, insuring the Seller, its successors and assigns, as to the first
(with respect to a First Lien Loan) or second (with respect to a Second Lien
Loan) priority lien of the Mortgage in the original principal amount of the
Mortgage Loan (or to the extent a Mortgage Note provides for negative
amortization, the maximum amount of negative amortization in accordance with
the Mortgage), subject only to the exceptions contained in clauses (i) and
(ii) of paragraph (j) of this Subsection 7.02, and in the case of Adjustable
Rate Mortgage Loans, against any loss by reason of the invalidity or
unenforceability of the lien resulting from the provisions of the Mortgage
providing for adjustment to the Mortgage Interest Rate and Monthly Payment.
Where required by state law or regulation, the Mortgagor has been given the
opportunity to choose the carrier of the required mortgage title insurance.
Additionally, such lender's title insurance policy affirmatively insures
ingress and egress, and against encroachments by or upon the Mortgaged
Property or any interest therein. The Seller, its successor and assigns, are
the sole insured of such lender's title insurance policy, and such lender's
title insurance policy is valid and remains in full force and effect and will
be in force and effect upon the consummation of the transactions contemplated
by this Agreement. No claims have been made under such lender's title
insurance policy, and no prior holder of the related Mortgage, including the
Seller, has done, by act or omission, anything which would impair the coverage
of such lender's title insurance policy, including without limitation, no
unlawful fee, commission, kickback or other unlawful compensation or value of
any kind has been or will be received, retained or realized by any attorney,
firm or other person or entity, and no such unlawful items have been received,
retained or realized by the Seller;
(q) No Defaults. Other than payments due but not yet 30 days or
more delinquent, there is no default, breach, violation or event which would
permit acceleration existing under the Mortgage or the Mortgage Note and no
event which, with the passage of time
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or with notice and the expiration of any grace or cure period, would
constitute a default, breach, violation or event which would permit
acceleration, and neither the Seller nor any of its affiliates nor any of
their respective predecessors, have waived any default, breach, violation or
event which would permit acceleration;
(r) No Mechanics' Liens. There are no mechanics' or similar liens
or claims which have been filed for work, labor or material (and no rights are
outstanding that under law could give rise to such liens) affecting the
related Mortgaged Property which are or may be liens prior to, or equal or
coordinate with, the lien of the related Mortgage;
(s) Location of Improvements; No Encroachments. All improvements
which were considered in determining the Appraised Value of the Mortgaged
Property lay wholly within the boundaries and building restriction lines of
the Mortgaged Property, and no improvements on adjoining properties encroach
upon the Mortgaged Property. No improvement located on or being part of the
Mortgaged Property is in violation of any applicable zoning law or regulation;
(t) Origination; Payment Terms. The Mortgage Loan was originated
by a mortgagee approved by the Secretary of Housing and Urban Development
pursuant to Sections 203 and 211 of the National Housing Act, a savings and
loan association, a savings bank, a commercial bank, credit union, insurance
company or other similar institution which is supervised and examined by a
federal or state authority. Principal payments on the Mortgage Loan commenced
no more than seventy days after funds were disbursed in connection with the
Mortgage Loan. The Mortgage Interest Rate as well as, in the case of an
Adjustable Rate Mortgage Loan, the Lifetime Rate Cap and the Periodic Rate Cap
and the Periodic Rate Floor are as set forth on the related Mortgage Loan
Schedule. The Mortgage Interest Rate is adjusted, with respect to Adjustable
Rate Mortgage Loans, on each Interest Rate Adjustment Date to equal the Index
plus the Gross Margin (rounded up or down to the nearest 0.125%), subject to
the Periodic Rate Cap. The Mortgage Note is payable in equal monthly
installments of principal (except for Mortgage Loans that provide for a fixed
period of interest-only payments at the beginning of their term) and interest,
which installments of interest, with respect to Adjustable Rate Mortgage
Loans, are subject to change due to the adjustments to the Mortgage Interest
Rate on each Interest Rate Adjustment Date, with interest calculated and
payable in arrears, sufficient to amortize the Mortgage Loan fully by the
stated maturity date, over an original term of not more than thirty years from
commencement of amortization. With respect to any Mortgage Loan that provides
for a fixed period of interest-only payments at the beginning of its term, at
the end of such interest-only period, the Monthly Payment will be recalculated
so as to require Monthly Payments sufficient to amortize the Mortgage Loan
fully by its stated maturity date. Unless otherwise specified on the related
Mortgage Loan Schedule, the Mortgage Loan is payable on the first day of each
month. The Mortgage Loan by its original terms or any modification thereof,
does not provide for amortization beyond its scheduled maturity date;
(u) Customary Provisions. The Mortgage contains customary and
enforceable provisions such as to render the rights and remedies of the holder
thereof adequate for the realization against the Mortgaged Property of the
benefits of the security provided thereby, including, (i) in the case of a
Mortgage designated as a deed of trust, by trustee's sale, and (ii) otherwise
by judicial foreclosure. Upon default by a Mortgagor on a Mortgage Loan and
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foreclosure on, or trustee's sale of, the Mortgaged Property pursuant to the
proper procedures, the holder of the Mortgage Loan will be able to deliver
good and merchantable title to the Mortgaged Property. There is no homestead
or other exemption available to a Mortgagor which would interfere with the
right to sell the Mortgaged Property at a trustee's sale or the right to
foreclose the Mortgage, subject to applicable federal and state laws and
judicial precedent with respect to bankruptcy and right of redemption or
similar law;
(v) Conformance with Agency and Underwriting Guidelines. The
Mortgage Loan was underwritten in accordance with the Underwriting Guidelines
(a copy of which is attached to the related Assignment and Conveyance as
Exhibit C). The Mortgage Note and Mortgage are on forms acceptable to Xxxxxxx
Mac or Xxxxxx Mae and no representations have been made to a Mortgagor that
are inconsistent with the mortgage instruments used;
(w) Occupancy of the Mortgaged Property. As of the related Closing
Date 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 and fire underwriting certificates, have been made
or obtained from the appropriate authorities. Unless otherwise specified on
the related Mortgage Loan Schedule, the Mortgagor represented at the time of
origination of the Mortgage Loan that the Mortgagor would occupy the Mortgaged
Property as the Mortgagor's primary residence;
(x) No Additional Collateral. The Mortgage Note is not and has not
been secured by any collateral except the lien of the corresponding Mortgage
and the security interest of any applicable security agreement or chattel
mortgage referred to in clause (j) above;
(y) Deeds of Trust. In the event the Mortgage constitutes a deed
of trust, a trustee, authorized and duly qualified under applicable law to
serve as such, has been properly designated and currently so serves and is
named in the Mortgage, and no fees or expenses are or will become payable by
the Purchaser to the trustee under the deed of trust, except in connection
with a trustee's sale after default by the Mortgagor;
(z) Acceptable Investment. There are no circumstances or
conditions with respect to the Mortgage, the Mortgaged Property, the
Mortgagor, the Mortgage File or the Mortgagor's credit standing to the
Seller's knowledge, that can reasonably be expected to cause private
institutional investors who invest in prime mortgage loans similar to the
Mortgage Loan to regard the Mortgage Loan as an unacceptable investment, cause
the Mortgage Loan to become delinquent, or adversely affect the value or
marketability of the Mortgage Loan, or cause the Mortgage Loan to prepay
during any period materially faster or slower than the mortgage loans
originated by the Seller generally;
(aa) Delivery of Mortgage Documents. The Mortgage Note, the
Mortgage, the Assignment of Mortgage and any other documents required to be
delivered under this Agreement for each Mortgage Loan have been delivered to
the Custodian. The Seller is in possession of a complete, true and accurate
Mortgage File in compliance with Exhibit 2 attached hereto, except for such
documents the originals of which have been delivered to the Custodian;
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(bb) Transfer of Mortgage Loans. The Assignment of Mortgage
(except with respect to any Mortgage that has been recorded in the name of
MERS or its designee) with respect to each Mortgage Loan is in recordable form
and is acceptable for recording under the laws of the jurisdiction in which
the Mortgaged Property is located;
(cc) Due-On-Sale. With respect to each Fixed Rate Mortgage Loan,
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, and to the best of the Seller's
knowledge, such provision is enforceable;
(dd) Assumability. With respect to each Adjustable Rate Mortgage
Loan, the Mortgage Loan Documents provide that after the related first
Interest Rate Adjustment Date, a related Mortgage Loan may only be assumed if
the party assuming such Mortgage Loan meets certain credit requirements stated
in the Mortgage Loan Documents;
(ee) No Buydown Provisions; No Graduated Payments or Contingent
Interests. The Mortgage Loan does not contain provisions pursuant to which
Monthly Payments are paid or partially paid with funds deposited in any
separate account established by the Seller, the Mortgagor, or anyone on behalf
of the Mortgagor, or paid by any source other than the Mortgagor nor does it
contain any other similar provisions 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;
(ff) Consolidation of Future Advances. Any future advances made to
the Mortgagor prior to the applicable 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 (with respect to a First Lien
Loan) or second (with respect to a Second Lien Loan) 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 and
Xxxxxxx Mac. The consolidated principal amount does not exceed the original
principal amount of the Mortgage Loan;
(gg) Mortgaged Property Undamaged; No Condemnation Proceedings.
There is no proceeding pending or threatened for the total or partial
condemnation of the Mortgaged Property. The Mortgaged Property is undamaged by
waste, fire, earthquake or earth movement, windstorm, flood, tornado or other
casualty so as to affect adversely the value of the Mortgaged Property as
security for the Mortgage Loan or the use for which the premises were intended
and each Mortgaged Property is in good repair. There have not been any
condemnation proceedings with respect to the Mortgaged Property and the Seller
has no knowledge of any such proceedings in the future;
(hh) Collection Practices; Escrow Deposits; Interest Rate
Adjustments. The origination, servicing and collection practices used by the
Seller with respect to the Mortgage Loan have been in all respects in
compliance with Accepted Servicing Practices, applicable laws and regulations,
and have been in all respects legal and proper. With respect to escrow
deposits
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and Escrow Payments, 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. All
Escrow Payments have been collected in full compliance with state and federal
law and the provisions of the related Mortgage Note and Mortgage. An escrow of
funds is not prohibited by applicable law and has been established in an
amount sufficient to pay for every item that remains unpaid and has been
assessed but is not yet due and payable. No escrow deposits or Escrow Payments
or other charges or payments due the Seller have been capitalized under the
Mortgage or the Mortgage Note. All Mortgage Interest Rate adjustments have
been made in strict compliance with state and federal law and the terms of the
related Mortgage and Mortgage Note on the related Interest Rate Adjustment
Date. If, pursuant to the terms of the Mortgage Note, another index was
selected for determining the Mortgage Interest Rate, the same index was used
with respect to each Mortgage Note which required a new index to be selected,
and such selection did not conflict with the terms of the related Mortgage
Note. The Seller executed and delivered any and all notices required under
applicable law and the terms of the related Mortgage Note and Mortgage
regarding the Mortgage Interest Rate and the Monthly Payment adjustments. Any
interest required to be paid pursuant to state, federal and local law has been
properly paid and credited;
(ii) Conversion to Fixed Interest Rate. The Mortgage Loan does not
contain a provision whereby the Mortgagor is permitted to convert the Mortgage
Interest Rate from an adjustable rate to a fixed rate;
(jj) Other Insurance Policies; No Defense to Coverage. No action,
inaction or event has occurred and no state of facts exists or has existed on
or prior to the Closing Date that has resulted or will result in the exclusion
from, denial of, or defense to coverage under any applicable hazard insurance
policy, PMI Policy, LPMI Policy or bankruptcy bond (including, without
limitation, any exclusions, denials or defenses which would limit or reduce
the availability of the timely payment of the full amount of the loss
otherwise due thereunder to the insured), irrespective of the cause of such
failure of coverage. The Seller has caused or will cause to be performed any
and all acts required to preserve the rights and remedies of the Purchaser in
any insurance policies applicable to the Mortgage Loans including, without
limitation, any necessary notifications of insurers, assignments of policies
or interests therein, and establishments of coinsured, joint loss payee and
mortgagee rights in favor of the Purchaser. In connection with the placement
of any such insurance, no commission, fee, or other compensation has been or
will be received by the Seller or by any officer, director, or employee of the
Seller or any designee of the Seller or any corporation in which the Seller or
any officer, director, or employee had a financial interest at the time of
placement of such insurance;
(kk) No Violation of Environmental Laws. To the best of the
Seller's knowledge, there is no pending action or proceeding directly
involving the Mortgaged Property in which compliance with any environmental
law, rule or regulation is an issue; there is no violation of any
environmental law, rule or regulation with respect to the Mortgage Property;
and nothing further remains to be done to satisfy in full all requirements of
each such law, rule or regulation constituting a prerequisite to use and
enjoyment of said property;
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(ll) Servicemembers Civil Relief Act. The Mortgagor has not
notified the Seller, and the Seller has no knowledge of any relief requested
or allowed to the Mortgagor under the Servicemembers Civil Relief Act, or
other similar state statute;
(mm) Appraisal. The Mortgage File contains an appraisal of the
related Mortgaged Property signed prior to the origination 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, and whose compensation is not affected by the
approval or disapproval of the Mortgage Loan, and the appraisal and appraiser
both satisfy the requirements of Xxxxxx Xxx or Xxxxxxx Mac and Title XI of the
Financial Institutions Reform, Recovery, and Enforcement Act of 1989 and the
regulations promulgated thereunder, all as in effect on the date the Mortgage
Loan was originated;
(nn) Disclosure Materials. The Mortgagor has executed a statement
to the effect that the Mortgagor has received all disclosure materials
required by, and the Seller has complied with, all applicable law with respect
to the making of the Mortgage Loans. The Seller shall maintain such statement
in the Mortgage File;
(oo) Construction or Rehabilitation of Mortgaged Property. No
Mortgage Loan was made in connection with the construction (other than a
"construct-to-perm" loan) or rehabilitation of a Mortgaged Property or
facilitating the trade-in or exchange of a Mortgaged Property;
(pp) Escrow Analysis. If applicable, with respect to each Mortgage
Loan, the Seller has within the last twelve months (unless such Mortgage was
originated within such twelve month period) analyzed the required Escrow
Payments for each Mortgage and adjusted the amount of such payments so that,
assuming all required payments are timely made, any deficiency will be
eliminated on or before the first anniversary of such analysis, or any overage
will be refunded to the Mortgagor, in accordance with RESPA and any other
applicable law;
(qq) Credit Information. As to each consumer report (as defined in
the Fair Credit Reporting Act, Public Law 91-508) or other credit information
furnished by the Seller to the Purchaser, that Seller has full right and
authority and is not precluded by law or contract from furnishing such
information to the Purchaser and the Purchaser is not precluded from
furnishing the same to any subsequent or prospective purchaser of such
Mortgage. The Seller has in its capacity as servicer, for each Mortgage Loan,
fully furnished, in accordance with the Fair Credit Reporting Act and its
implementing regulations, accurate and complete information (e.g., favorable
and unfavorable) on its borrower credit files to Equifax, Experian and Trans
Union Credit Information Company (three of the credit repositories), on a
monthly basis. This representation and warranty is a Deemed Material and
Adverse Representation;
(rr) Leaseholds. If the Mortgage Loan is secured by a leasehold
estate, (1) the ground lease is assignable or transferable; (2) the ground
lease will not terminate earlier than five years after the maturity date of
the Mortgage Loan; (3) the ground lease does not provide for termination of
the lease in the event of lessee's default without the Mortgagee being
entitled to receive written notice of, and a reasonable opportunity to cure
the default; (4) the ground lease permits the mortgaging of the related
Mortgaged Property; (5) the ground lease protects the
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Mortgagee's interests in the event of a property condemnation; (6) all ground
lease rents, other payments, or assessments that have become due have been
paid; and (7) the use of leasehold estates for residential properties is a
widely accepted practice in the jurisdiction in which the Mortgaged Property
is located.
(ss) Prepayment Penalty. Each Mortgage Loan that is subject to a
prepayment penalty as provided in the related Mortgage Note is identified on
the related Mortgage Loan Schedule. With respect to each Mortgage Loan that
has a Prepayment Penalty feature, each such Prepayment Penalty is enforceable
and will be enforced by the Seller for the benefit of the Purchaser, and each
Prepayment Penalty is permitted pursuant to federal, state and local law. Each
such Prepayment Penalty is in an amount not more than the maximum amount
permitted under applicable law and no such Prepayment Penalty may provide for
a term in excess of five (5) years unless the Mortgage Loan was modified to
reduce the Prepayment Penalty period to no more than five (5) years from the
date of the related Mortgage Note and the Mortgagor was notified in writing of
such reduction in Prepayment Penalty period. With respect to any Mortgage Loan
that contains a provision permitting imposition of a penalty upon a prepayment
prior to maturity: (i) the Mortgage Loan provides some benefit to the
Mortgagor (e.g., a rate or fee reduction) in exchange for accepting such
Prepayment Penalty, (ii) 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 penalty, and (iii) the Prepayment Penalty was
adequately disclosed to the Mortgagor in the mortgage loan documents pursuant
to applicable state, local and federal law. This representation and warranty
is a Deemed Material and Adverse Representation;
(tt) Predatory Lending Regulations. No Mortgage Loan is a High
Cost Loan or Covered Loan, as applicable. No Mortgage Loan is covered by the
Home Ownership and Equity Protection Act of 1994 and no Mortgage Loan is in
violation of any comparable state or local law. The Mortgaged Property is not
located in a jurisdiction where a breach of this representation with respect
to the related Mortgage Loan may result in additional assignee liability to
the Purchaser, as determined by Purchaser in its reasonable discretion. This
representation and warranty is a Deemed Material and Adverse Representation;
(uu) Single-premium credit life insurance policy. No Mortgagor was
required to purchase any single premium credit insurance policy (e.g., life,
mortgage, disability, property, 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, property, accident,
unemployment, mortgage or health insurance) 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.
This representation and warranty is a Deemed Material and Adverse
Representation;
(vv) Qualified Mortgage. The Mortgage Loan is a qualified mortgage
under Section 860G(a)(3) of the Code;
(ww) Tax Service Contract. Each Mortgage Loan is either (x) a
First Lien Loan covered by a paid in full, life of loan, tax service contract
issued by LandAmerica Tax Services
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(formerly LERETA Tax and Flood) and such contract is transferable, or (y) a
Second Lien Loan subordinate to a first lien loan, which first lien loan, to
the best of Seller's knowledge, is covered by a paid in full, life of loan,
tax service contract issued by LandAmerica Tax Services (formerly LERETA Tax
and Flood) and such contract is transferable. On the related Closing Date, the
Seller shall remit to the Purchaser a transfer fee of two dollars ($2.00) for
each Mortgage Loan covered by such a tax service contract. If such a tax
service contract with LandAmerica Tax Services is not in place, then a
placement fee of seventy two dollars ($72.00) will apply to each such Mortgage
Loan;
(xx) Origination. No predatory or deceptive lending practices,
including, without limitation, the extension of credit without regard to the
ability of the Mortgagor to repay and the extension of credit which has no
apparent benefit to the Mortgagor, were employed in the origination of the
Mortgage Loan;
(yy) Recordation. Each original Mortgage was recorded and all
subsequent assignments of the original Mortgage (other than the assignment to
the Purchaser) have been recorded in the appropriate jurisdictions wherein
such recordation is necessary to perfect the lien thereof as against creditors
of the Seller, or is in the process of being recorded;
(zz) Co-op Loans. With respect to a Mortgage Loan that is a Co-op
Loan, the stock that is pledged as security for the Mortgage Loan is held by a
person as a tenant-stockholder (as defined in Section 216 of the Code) in a
cooperative housing corporation (as defined in Section 216 of the Code);
(aaa) Mortgagor Bankruptcy. On or prior to the date 60 days after
the related Closing Date, the Mortgagor has not filed and will not file a
bankruptcy petition or has not become the subject and will not become the
subject of involuntary bankruptcy proceedings or has not consented to or will
not consent to the filing of a bankruptcy proceeding against it or to a
receiver being appointed in respect of the related Mortgaged Property;
(bbb) No Prior Offer. The Mortgage Loan has not previously been
offered for sale;
(ccc) Georgia Fair Lending Act. There is no Mortgage Loan that was
originated (or modified) on or after October 1, 2002 and before March 7, 2003
which is secured by property located in the State of Georgia. There is no
Mortgage Loan that was originated on or after March 7, 2003 that is a "high
cost home loan" as defined under the Georgia Fair Lending Act. This
representation and warranty is a Deemed Material and Adverse Representation;
(ddd) No Arbitration. No Mortgagor with respect to any Mortgage
Loan originated on or after August 1, 2004 agreed to submit to arbitration to
resolve any dispute arising out of or relating in any way to the mortgage loan
transaction. This representation and warranty is a Deemed Material and Adverse
Representation;
(eee) Flood Service Contract. Each Mortgage Loan is covered by a
paid in full, life of loan, flood service contract issued by either First
American Flood Data Services or Fidelity, and such contract is transferable.
If no such flood service contract is in place, or if such flood service
contract is issued by an insurer other than First American Flood Data Services
or
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Fidelity, then on the related Closing Date, the Seller shall remit to the
Purchaser a placement fee of ten dollars ($10.00) for each such Mortgage Loan;
(fff) Origination Practices/No Steering. The Mortgagor was not
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 such facts as, without
limitation, the Mortgage Loan's requirements and the Mortgagor's credit
history, income, assets and liabilities 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. Neither the
Seller nor any of its affiliates provides financing through a subprime lending
channel. The Seller covenants to provide the Purchaser prompt written notice
if the Seller or any of its affiliates commences offering financing through a
subprime lending channel. This representation and warranty is a Deemed
Material and Adverse Representation;
(ggg) Underwriting Methodology. The methodology used in
underwriting the extension of credit for each Mortgage Loan does not rely
solely on the extent of the Mortgagor's equity in the collateral as the
principal determining factor in approving such extension of credit. The
methodology employed objective criteria such as the Mortgagor's income, assets
and liabilities, to the proposed mortgage payment and, based on such
methodology, the Mortgage Loan's originator made a reasonable determination
that at the time of origination the Mortgagor had the ability to make timely
payments on the Mortgage Loan. 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. This representation and
warranty is a Deemed Material and Adverse Representation;
(hhh) Points and Fees. No Mortgagor was charged "points and fees"
(whether or not financed) in an amount greater than (i) $1,000, or (ii) 5% of
the principal amount of such Mortgage Loan, whichever is greater. For purposes
of this representation, such 5% limitation is calculated in accordance with
Xxxxxx Mae's anti-predatory lending requirements as set forth in the Xxxxxx
Xxx Guides and "points and fees" (x) include origination, underwriting, broker
and finder fees and charges that the mortgagee imposed as a condition of
making the Mortgage Loan, whether they are paid to the mortgagee or a third
party; and (y) exclude bona fide discount points, fees paid for actual
services rendered in connection with the origination of the Mortgage Loan
(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 which miscellaneous fees and charges, in total, do not exceed
0.25% of the principal amount of such Mortgage Loan. This representation and
warranty is a Deemed Material and Adverse Representation;
(iii) Fees Charges. All points, fees and charges (including
finance charges) and whether or not financed, assessed, collected or to be
collected in connection with the
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origination and servicing of each Mortgage Loan have been disclosed in writing
to the Mortgagor in accordance with applicable state and federal law and
regulation. This representation and warranty is a Deemed Material and Adverse
Representation; and
(jjj) Second Lien Loans. With respect to each Second Lien Loan:
(i) No Negative Amortization of Related First Lien Loan. The
related first lien loan does not permit negative amortization;
(ii) Request for Notice; No Consent Required. Where required or
customary in the jurisdiction in which the Mortgaged Property is
located, the original lender has filed for record a request for notice
of any action by the related senior lienholder, and the Seller has
notified such senior lienholder in writing of the existence of the
Second Lien Loan and requested notification of any action to be taken
against the Mortgagor by such senior lienholder. Either (a) no consent
for the Second Lien Loan is required by the holder of the related first
lien loan or (b) such consent has been obtained and is contained in the
related Mortgage File;
(iii) No Default Under First Lien. To the best of Seller's
knowledge, the related first lien loan is in full force and effect, and
there is no default lien, breach, violation or event which would permit
acceleration existing under such first lien mortgage or 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 which would permit acceleration under such
first lien loan; and
(iv) Right to Cure First Lien. The related first lien mortgage
contains a provision which provides for giving notice of default or
breach to the mortgagee under the Mortgage Loan and allows such
mortgagee to cure any default under the related first lien mortgage.
Subsection 7.02 Seller Representations. The Seller hereby
represents and warrants to the Purchaser that, as of the related Closing Date:
(a) Due Organization and Authority. The Seller is a New York
corporation, validly existing, and in good standing under the laws of its
jurisdiction of incorporation or formation and has all licenses necessary to
carry on its business as now being conducted and is licensed, qualified and in
good standing in the states where the Mortgaged Property is located if the
laws of such state require licensing or qualification in order to conduct
business of the type conducted by the Seller. The Seller has corporate power
and authority to execute and deliver this Agreement and to perform its
obligations hereunder; the execution, delivery and performance of this
Agreement (including all instruments of transfer to be delivered pursuant to
this Agreement) by the Seller and the consummation of the transactions
contemplated hereby have been duly and validly authorized; this Agreement has
been duly executed and delivered and constitutes the valid, legal, binding and
enforceable obligation of the Seller, except as enforceability may be limited
by (i) bankruptcy, insolvency, liquidation, receivership, moratorium,
reorganization or other similar laws affecting the enforcement of the rights
of creditors and (ii) general principles of equity, whether enforcement is
sought in a proceeding in equity or at law. All requisite
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corporate action has been taken by the Seller to make this Agreement valid and
binding upon the Seller in accordance with its terms;
(b) No Consent Required. No consent, approval, authorization or
order is required for the transactions contemplated by this Agreement from any
court, governmental agency or body, or federal or state regulatory authority
having jurisdiction over the Seller is required or, if required, such consent,
approval, authorization or order has been or will, prior to the related
Closing Date, be obtained;
(c) Ordinary Course of Business. The consummation of the
transactions contemplated by this Agreement are in the ordinary course of
business of the Seller, and the transfer, assignment and conveyance of the
Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are
not subject to the bulk transfer or any similar statutory provisions in effect
in any applicable jurisdiction;
(d) No Conflicts. Neither the execution and delivery of this
Agreement, the acquisition or origination of the Mortgage Loans by the Seller,
the sale of the Mortgage Loans to the Purchaser, the consummation of the
transactions contemplated hereby, nor the fulfillment of or compliance with
the terms and conditions of this Agreement, will conflict with or result in a
breach of any of the terms, conditions or provisions of the Seller's charter
or by-laws or any legal restriction or any agreement or instrument to which
the Seller is now a party or by which it is bound, or constitute a default or
result in an acceleration under any of the foregoing, or result in the
violation of any law, rule, regulation, order, judgment or decree to which the
Seller or its property is subject, or result in the creation or imposition of
any lien, charge or encumbrance that would have an adverse effect upon any of
its properties pursuant to the terms of any mortgage, contract, deed of trust
or other instrument, or impair the ability of the Purchaser to realize on the
Mortgage Loans, impair the value of the Mortgage Loans, or impair the ability
of the Purchaser to realize the full amount of any insurance benefits accruing
pursuant to this Agreement;
(e) No Litigation Pending. There is no action, suit, proceeding or
investigation pending or to the Seller's knowledge, threatened against the
Seller, before any court, administrative agency or other tribunal asserting
the invalidity of this Agreement, seeking to prevent the consummation of any
of the transactions contemplated by this Agreement or which, either in any one
instance or in the aggregate, may result in any material adverse change in the
business, operations, financial condition, properties or assets of the Seller,
or in any material impairment of the right or ability of the Seller to carry
on its business substantially as now conducted, or in any material liability
on the part of the Seller, or which would draw into question the validity of
this Agreement or the Mortgage Loans or of any action taken or to be taken in
connection with the obligations of the Seller contemplated herein, or which
would be likely to impair materially the ability of the Seller to perform
under the terms of this Agreement;
(f) Ability to Perform; Solvency. The Seller does not believe, nor
does it have any reason or cause to believe, that it cannot perform each and
every covenant contained in this Agreement. The Seller is solvent and the sale
of the Mortgage Loans will not cause the Seller to become insolvent. The sale
of the Mortgage Loans is not undertaken with the intent to hinder, delay or
defraud any of Seller's creditors;
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(g) Seller's Origination. The Seller's decision to originate any
mortgage loan or to deny any mortgage loan application is an independent
decision based upon the Underwriting Guidelines, and is in no way made as a
result of Purchaser's decision to purchase, or not to purchase, or the price
Purchaser may offer to pay for, any such mortgage loan, if originated;
(h) Anti-Money Laundering Laws. The Seller has complied with all
applicable anti-money laundering laws and regulations, including without
limitation the USA Patriot Act of 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 property in question,
and maintains, and will maintain, sufficient information to identify the
applicable Mortgagor for purposes of the Anti-Money Laundering Laws;
(i) Ability to Service. Seller has the facilities, procedures, and
experienced personnel necessary for the sound servicing of mortgage loans of
the same type as the Mortgage Loans. The Seller is duly qualified, licensed,
registered and otherwise authorized under all applicable federal, state and
local laws, and regulations, if applicable, meets the minimum capital
requirements set forth by HUD, the OTS, the OCC or the FDIC, if applicable,
and is in good standing to enforce, originate, sell mortgage loans to, and
service mortgage loans in the jurisdiction wherein the Mortgaged Properties
are located;
(j) Reasonable Servicing Fee. The Seller acknowledges and agrees
that the Servicing Fee represents reasonable compensation for performing such
services and that the entire Servicing Fee shall be treated by the Seller, for
accounting and tax purposes, as compensation for the servicing and
administration of the Mortgage Loans pursuant to this Agreement;
(k) Selection Process. The Mortgage Loans were selected from among
the outstanding one- to four-family mortgage loans in the Seller's portfolio
at the related Closing Date as to which the criteria set forth in the related
Purchase Price and Terms Letter are satisfied and the representations and
warranties set forth in Subsection 7.01 could be made and such selection was
not made in a manner so as to affect adversely the interests of the Purchaser;
(l) Delivery to the Custodian. 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, shall
be delivered to the Custodian all in compliance with the specific requirements
of the Custodial Agreement. With respect to each Mortgage Loan, the Seller
will be in possession of a complete Mortgage File in compliance with Exhibit 2
hereto, except for such documents as will be delivered to the Custodian;
(m) Mortgage Loan Characteristics. The characteristics of the
related Mortgage Loan Package are as set forth on the description of the pool
characteristics for the applicable Mortgage Loan Package delivered pursuant to
Section 9 on the related Closing Date in the form attached as Exhibit B to
each related Assignment and Conveyance Agreement;
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(n) No Untrue Information. Neither this Agreement nor any
information, statement, tape, diskette, report, form, or other document
furnished or to be furnished pursuant to this Agreement or any Reconstitution
Agreement or in connection with the transactions contemplated hereby
(including any Securitization Transaction or Whole Loan Transfer) contains or
will contain any untrue statement of fact or omits or will omit to state a
fact necessary to make the statements contained herein or therein not
misleading;
(o) No Brokers. 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;
(p) Sale Treatment. The Seller expects to be advised by its
independent certified public accountants that under generally accepted
accounting principles the transfer of the Mortgage Loans may be treated as a
sale on the books and records of the Seller and the Seller has determined that
the disposition of the Mortgage Loans pursuant to this Agreement will be
afforded sale treatment for tax and accounting purposes;
(q) Owner of Record. The Seller is the owner of record of each
Mortgage and the indebtedness evidenced by each Mortgage Note, except for the
Assignments of Mortgage which have been sent for recording, and upon
recordation the Seller will be the owner of record of each Mortgage and the
indebtedness evidenced by each Mortgage Note, and upon the sale of the
Mortgage Loans to the Purchaser, the Seller will retain the Mortgage Files
with respect thereto in trust only for the purpose of servicing and
supervising the servicing of each Mortgage Loan; and
(r) Reasonable Purchase Price. The consideration received by the
Seller upon the sale of the Mortgage Loans under this Agreement constitutes
fair consideration and reasonably equivalent value for the Mortgage Loans.
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 either the Seller, the
Servicer or the Purchaser of a breach of any of the foregoing representations
and warranties, the party discovering such breach shall give prompt written
notice to the other relevant parties.
Within sixty (60) days after the earlier of either discovery by or
notice to the Seller of any breach of a representation or warranty which
materially and adversely affects the value of the Mortgage Loans or the
interest of the Purchaser therein (or which materially and adversely affects
the value of the applicable Mortgage Loan or the interest of the Purchaser
therein in the case of a representation and warranty relating to a particular
Mortgage Loan), 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 repurchase such Mortgage Loan or Mortgage Loans at the Repurchase
Price. Notwithstanding the above sentence, (i) within 60 days after the
earlier of either discovery by, or notice to, the Seller of any breach of the
representation or warranty set
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forth in clause (vv) of Subsection 7.01, the Seller shall repurchase such
Mortgage Loan at the Repurchase Price and (ii) any breach of a Deemed Material
and Adverse Representation shall automatically be deemed to materially and
adversely affect the value of the Mortgage Loans or the interest of the
Purchaser therein. However, the Seller may, at its option 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 Qualified Substitute
Mortgage Loans; provided, however, that any such substitution shall be
effected not later than ninety (90) 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 pursuant to the
foregoing provisions of this Subsection 7.03 shall occur on a date designated
by the Purchaser, and acceptable to the Seller, and shall be accomplished by
the Seller remitting to the Servicer for deposit the amount of the Repurchase
Price in the Custodial Account for distribution to the Purchaser on the next
scheduled Remittance Date.
At the time of repurchase of any deficient Mortgage Loan (or
removal of any Deleted Mortgage Loan), the Purchaser and the Seller shall
arrange for the assignment of the repurchased Mortgage Loan (or Deleted
Mortgage Loan) to the Seller or its designee and the delivery to the Seller of
any documents held by the Purchaser relating to the repurchased Mortgage Loan
in the manner required by this Agreement with respect to the purchase and sale
of such Mortgage Loan on the related Closing Date. In the event the Repurchase
Price is deposited in the Custodial Account, the Seller shall, simultaneously
with its remittance to the Servicer of such Repurchase Price for 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
one or more Qualified Substitute Mortgage Loans, the Seller shall effect such
substitution by delivering to the Purchaser for each Qualified Substitute
Mortgage Loan the Mortgage Note, the Mortgage, the Assignment of Mortgage and
such other documents and agreements as are required by Subsection 6.03. The
Seller shall remit to the Servicer for deposit in the Custodial Account the
Monthly Payment less the Servicing Fee due on each Qualified Substitute
Mortgage Loan 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 related 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, each Qualified
Substitute Mortgage Loan 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, 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
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(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).
The amount of such shortfall shall be remitted to the Servicer by the Seller
for distribution by the Servicer in the month of substitution pursuant to
Subsection 11.04. Accordingly, on the date of such substitution, the Seller
will remit to the Servicer from its own funds for deposit into the Custodial
Account an amount equal to the amount of such shortfall plus one month's
interest thereon at the Mortgage Loan Remittance Rate.
In addition to such repurchase or substitution obligation, the
Seller shall indemnify the Purchaser and its present and former directors,
officers, employees and agents, and hold such parties harmless against any
losses, damages, penalties, fines, forfeitures, legal fees and expenses and
related costs, judgments, and other costs and expenses resulting from any
claim, demand, defense or assertion based on or grounded upon, or resulting
from, a breach of the Seller representations and warranties contained in this
Agreement or any Reconstitution Agreement. For purposes of the previous
sentence, "Purchaser" shall mean the Person then acting as the Purchaser under
this Agreement and any and all Persons who previously were "Purchasers" under
this Agreement.
It is understood and agreed that the obligations of the Seller set
forth in this Subsection 7.03 to cure, repurchase or substitute for a
defective Mortgage Loan, together with the rights and remedies of the
Purchaser under Subsection 12.01 constitute the sole remedies of the Purchaser
respecting a breach of the representations and warranties set forth in
Subsections 7.01 and 7.02.
Subsection 7.04 Repurchase of Mortgage Loans with Early Payment
Defaults. If the related Mortgagor is delinquent with respect to either of the
Mortgage Loan's first two Monthly Payments either (i) after origination of
such Mortgage Loan, or (ii) after the related Closing Date, and the Purchaser
provided written notification to the Seller of such delinquency within ninety
(90) days from the Purchaser's receipt of notice of such delinquency, the
Seller, at the Purchaser's option, shall repurchase such Mortgage Loan from
the Purchaser at a price equal to the Repurchase Price. The Seller shall
repurchase such delinquent Mortgage Loan within thirty (30) days of such
request.
Subsection 7.05 Premium Recapture. With respect to any Mortgage
Loan without prepayment penalties that prepays in full on or prior to the
related Closing Date or during the first sixty (60) days following the related
Closing Date, the Seller shall pay the Purchaser, within thirty (30) Business
Days after such prepayment in full or repurchase, an amount equal to the
excess of the Purchase Price Percentage for such Mortgage Loan over par,
multiplied by the outstanding principal balance of such Mortgage Loan as of
the related Cut-off Date. Notwithstanding anything contained herein to the
contrary, Seller shall not be required to reimburse any applicable premium
with respect to any Mortgage Loan that prepays in full during the time periods
specified in this Subsection 7.05 unless Purchaser provides written
notification of the prepayment in full within ninety (90) days of the
Purchaser's receipt of notice of such prepayment in full.
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Section 8. Closing. The closing for the purchase and sale of each
Mortgage Loan Package shall take place on the related Closing Date. At the
Purchaser's option, each closing shall be either: by telephone, confirmed by
letter or wire as the parties shall agree, or conducted in person, at such
place as the parties shall agree. Each closing shall be subject to each of the
following conditions:
(a) all of the representations and warranties of the Seller in
this Agreement shall be true and correct as of the related Closing Date and no
event shall have occurred which, with notice or the passage of time, would
constitute an Event of Default under this Agreement;
(b) the 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 Purchaser, duly executed by all signatories as required
pursuant to the terms hereof; and
(c) all other terms and conditions of this Agreement shall have
been complied with.
Section 9. Closing Documents. On the related Closing Date, the
Seller shall deliver to the Purchaser's attorneys in escrow fully executed
originals of:
(a) this Agreement (to be executed and delivered only for the
initial Closing Date);
(b) the related Purchase Price and Terms Letter, executed in four
(4) counterparts;
(c) with respect to the initial Closing Date, the Custodial
Agreement, dated as of the initial Cut-off Date;
(d) with respect to the initial Closing Date, a Custodial Account
Certification in the form attached as Exhibit 4 hereto or a Custodial Account
Letter Agreement in the form attached as Exhibit 5 hereto;
(e) with respect to the initial Closing Date, an Escrow Account
Certification in the form attached as Exhibit 6 hereto or an Escrow Account
Letter Agreement in the form attached as Exhibit 7 hereto;
(f) the related Mortgage Loan Schedule, segregated by Mortgage
Loan Package, one copy to be attached hereto, one copy to be attached to the
Custodian's counterpart of the Custodial Agreement, and one copy to be
attached to the related Assignment and Conveyance as the Mortgage Loan
Schedule thereto;
(g) with respect to the initial Closing Date, an Officer's
Certificate, in the form of Exhibit 10 hereto with respect to the Seller,
including all attachments thereto and with respect to subsequent Closing
Dates, an Officer's Certificate upon request of the Purchaser; and
(h) with respect to the initial Closing Date, an Opinion of
Counsel of the Seller (who may be an employee of the Seller), generally in the
form of Exhibit 11 hereto and
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with respect to subsequent Closing Dates, an Opinion of Counsel of the Seller
upon request of the Purchaser;
(i) with respect to the initial Closing Date, an Opinion of
Counsel of the Custodian (who may be an employee of the Custodian), in the
form of an exhibit to the Custodial Agreement;
(j) a Security Release Certification, in the form of Exhibit 12 or
Exhibit 13, as applicable, hereto executed by any person, as requested by the
Purchaser, if any of the Mortgage Loans have at any time been subject to any
security interest, pledge or hypothecation for the benefit of such person;
(k) 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;
(l) with respect to the initial Closing Date, the Underwriting
Guidelines to be attached hereto as Exhibit 8 and with respect to each
subsequent Closing Date, the Underwriting Guidelines to be attached to the
related Assignment and Conveyance;
(m) Assignment and Conveyance Agreement in the form of Exhibit 14
hereto, including all exhibits thereto;
(n) a Custodian's Certification, as required under the Custodial
Agreement, in the form of Exhibit 2 to the Custodial Agreement; and
(o) a MERS Report reflecting the Purchaser as Investor, the
Custodian as custodian and no Person as Interim Funder for each MERS
Designated Mortgage Loan.
The Seller shall bear the risk of loss of the closing documents
until such time as they are received by the Purchaser or its attorneys.
Section 10. Costs. The Purchaser shall pay any commissions due its
salesmen and the legal fees and expenses of its attorneys and custodial fees.
All other costs and expenses incurred in connection with the transfer and
delivery of the Mortgage including 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.
Section 11. Administration and Servicing of the Mortgage Loans;
Compliance with Regulation AB.
Subsection 11.01 Servicer to Act as Servicer; Intent of the
Parties; Reasonableness. The Servicer shall service and administer the
Mortgage Loans in accordance with this Agreement and Accepted Servicing
Procedures and the terms of the Mortgage Notes and Mortgages, and shall have
full power and authority, acting alone or through sub-servicers or agents, to
do or cause to be done any and all things in connection with such servicing
and
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administration which the Servicer may deem necessary or desirable and
consistent with the terms of this Agreement. The Servicer may perform its
servicing responsibilities through agents or independent contractors, but
shall not thereby be released from any of its responsibilities hereunder.
Consistent with the terms of this Agreement, the Servicer may
waive, modify or vary any term of any Mortgage Loan or consent to the
postponement of strict compliance with any such term or in any manner grant
indulgence to any Mortgagor; provided, however, that (unless the Mortgagor is
in default with respect to the Mortgage Loan, or such default is, in the
judgment of the Servicer, imminent, and the Servicer has the consent of the
Purchaser) the Servicer shall not permit any modification with respect to any
Mortgage Loan which materially and adversely affects the Mortgage Loan,
including without limitation, any modification that would defer or forgive the
payment of any principal or interest or any penalty or premium on the
prepayment of principal, change the outstanding principal amount (except for
actual payments of principal), make any future advances, extend the final
maturity date or change the Mortgage Interest Rate, as the case may be, with
respect to such Mortgage Loan. Without limiting the generality of the
foregoing, the Servicer in its own name or acting through sub-servicers or
agents is hereby authorized and empowered by the Purchaser when the Servicer
believes it appropriate and reasonable in its best judgment, 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 the
Mortgaged Properties and to institute foreclosure proceedings or obtain a
deed-in-lieu of foreclosure so as to convert the ownership of such properties,
and to hold or cause to be held title to such properties, on behalf of the
Purchaser pursuant to the provisions of Subsection 11.12. The Servicer shall
make all required Servicing Advances and shall service and administer the
Mortgage Loans in accordance with applicable state and federal law and shall
provide to the Mortgagors any reports required to be provided to them thereby.
The Purchaser shall furnish to the Servicer any powers of attorney and other
documents reasonably necessary or appropriate to enable the Servicer to carry
out its servicing and administrative duties under this Agreement.
The Purchaser and the Servicer acknowledge and agree that the
purpose of Subsections 11.19, 11.20 and 11.24 of this Agreement are to
facilitate compliance by the Purchaser with the provisions of Regulation AB
and related rules and regulations of the Commission. Although Regulation AB is
applicable by its terms only to offerings of asset-backed securities that are
registered under the Securities Act, the Seller acknowledges that investors in
privately offered securities may require that the Purchaser or any Depositor
provide comparable disclosure in unregistered offerings. References in this
Agreement to compliance with Regulation AB include provisions of comparable
disclosure in private offerings.
The Purchaser shall not exercise its right to request delivery of
information or other performance under these provisions other than in good
faith, or for purposes other than compliance with the Securities Act, the
Exchange Act and the rules and regulations of the Commission thereunder (or
the provision in a private offering of disclosure comparable to that required
under the Securities Act). The Servicer acknowledges that interpretations of
the requirements of Regulation AB may change over time, whether due to
interpretive guidance provided by the Commission or its staff, consensus among
participants in the asset-backed securities markets, advice of counsel, or
otherwise, and agrees to comply with requests made by
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the Purchaser 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 Servicer shall cooperate fully with the
Purchaser to deliver to the Purchaser (including any of its assignees or
designees), any and all statements, reports, certifications, records and any
other information necessary in the good faith determination of the Purchaser
to permit the Purchaser to comply with the provisions of Regulation AB,
together with such disclosures relating to the Servicer, any Subservicer, any
Third-Party Originator and the Mortgage Loans, or the servicing of the
Mortgage Loans, reasonably believed by the Purchaser to be necessary in order
to effect such compliance.
Subsection 11.02 Liquidation of Mortgage Loans. If 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 Servicer shall take such action as it shall deem to be in the best
interest of the Purchaser. If any payment due under any Mortgage Loan remains
delinquent for a period of one hundred twenty (120) days or more, the Servicer
shall commence foreclosure proceedings in accordance with the guidelines set
forth by Xxxxxx Xxx or Xxxxxxx Mac. In such event, the Servicer shall from its
own funds make all necessary and proper Servicing Advances.
Subsection 11.03 Collection of Mortgage Loan Payments.
Continuously from the date hereof until the principal and interest on all
Mortgage Loans are paid in full, the Servicer will proceed diligently, in
accordance with this Agreement, to collect all payments due under each of the
Mortgage Loans when the same shall become due and payable. Further, the
Servicer will in accordance with Accepted Servicing Procedures ascertain and
estimate taxes, assessments, fire and hazard insurance premiums, and all other
charges that, as provided in any 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.
Subsection 11.04 Establishment of Custodial Account; Deposits in
Custodial Account. The Servicer shall segregate and hold all funds collected
and received pursuant to each Mortgage Loan separate and apart from any of its
own funds and general assets and shall establish and maintain one or more
Custodial Accounts (collectively, the "Custodial Account"), titled "GreenPoint
Mortgage Funding, Inc., in trust for Xxxxxx Xxxxxxx Mortgage Capital Inc. as
Purchaser of Mortgage Loans and various Mortgagors." Such Custodial Account
shall be established with a commercial bank, a savings bank or a savings and
loan association (which may be a depository affiliate of the Servicer) which
meets the guidelines set forth by Xxxxxx Mae or Xxxxxxx Mac as an eligible
depository institution for custodial accounts. In any case, the Custodial
Account shall be insured by the FDIC in a manner which shall provide maximum
available insurance thereunder and which may be drawn on by the Servicer. The
creation of any Custodial Account shall be evidenced by (i) a certification in
the form of Exhibit 4 hereto, in the case of an account established with a
depository affiliate of the Servicer, or (ii) a letter agreement in the form
of Exhibit 5 hereto, in the case of an account held by a depository other than
an affiliate of the Servicer. In either case, a copy of such certification or
letter agreement shall be furnished to the Purchaser upon request.
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The Servicer shall deposit in the Custodial Account on a daily
basis on the Business Day following receipt thereof, and retain therein the
following payments and collections received or made by it subsequent to the
related Cut-off Date (other than in respect of principal and interest on the
Mortgage Loans due on or before the related Cut-off Date):
(a) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(b) all payments on account of interest on the Mortgage Loans
adjusted to the Mortgage Loan Remittance Rate;
(c) all Liquidation Proceeds;
(d) all proceeds received by the Servicer under any title
insurance policy, hazard insurance policy, or other insurance policy other
than proceeds to be held in the Escrow Account and applied to the restoration
or repair of the Mortgaged Property or released to the Mortgagor in accordance
with Accepted Servicing Procedures;
(e) all awards or settlements in respect of condemnation
proceedings or eminent domain affecting any Mortgaged Property which are not
released to the Mortgagor in accordance with Accepted Servicing Procedures;
(f) any amount required to be deposited in the Custodial Account
pursuant to Subsections 11.14, 11.16 and 11.18;
(g) any amount required to be deposited by the Servicer in
connection with any REO Property pursuant to Subsection 11.12;
(h) any amounts payable in connection with the repurchase of any
Mortgage Loan pursuant to Subsection 7.03, and all amounts required to be
deposited by the Servicer in connection with shortfalls in principal amount of
Qualified Substitute Mortgage Loans pursuant to Subsection 7.03; and
(i) with respect to each Principal Prepayment in full, an amount
(to be paid by the Servicer out of its own funds) which, when added to all
amounts allocable to interest received in connection with the Principal
Prepayment in full, equals one month's interest on the amount of principal so
prepaid for the month of prepayment at the applicable Mortgage Loan Remittance
Rate; provided, however, that the Servicer's aggregate obligations under this
paragraph for any month shall be limited to the total amount of Servicing Fees
actually received with respect to the Mortgage Loans by the Servicer during
such month.
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,
assumption fees and other ancillary fees need not be deposited by the Servicer
in the Custodial Account.
The Servicer may invest the funds in the Custodial Account in
Eligible Investments designated in the name of the Servicer for the benefit of
the Purchaser, which shall
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mature not later than the Business Day next preceding the Remittance Date next
following the date of such investment (except that (A) any investment in the
institution with which the Custodial Account is maintained may mature on such
Remittance Date and (B) any other investment may mature on such Remittance
Date if the Servicer shall advance funds on such Remittance Date, pending
receipt thereof to the extent necessary to make distributions to the Owner)
and shall not be sold or disposed of prior to maturity. Notwithstanding
anything to the contrary herein and above, all income and gain realized from
any such investment shall be for the benefit of the Servicer and shall be
subject to withdrawal by the Servicer. The amount of any losses incurred in
respect of any such investments shall be deposited in the Custodial Account by
the Servicer out of its own funds immediately as realized.
Subsection 11.05 Withdrawals From the Custodial Account. The
Servicer shall, from time to time, withdraw funds from the Custodial Account
for the following purposes:
(a) to make payments to the Purchaser in the amounts and in the
manner provided for in Subsection 11.14;
(b) to reimburse itself for P&I Advances, the Servicer's right to
reimburse itself pursuant to this subclause (b) with respect to any Mortgage
Loan being limited to related Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds, REO Disposition Proceeds and such other amounts as may be
collected by the Servicer from the Mortgagor or otherwise relating to the
Mortgage Loan, it being understood that, in the case of any such
reimbursement, the Servicer'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, the Servicer's right to such
reimbursement shall be subsequent to the payment to the Purchaser of the
Repurchase Price pursuant to Subsection 7.03, and all other amounts required
to be paid to the Purchaser with respect to such Mortgage Loan;
(c) to reimburse itself for any unpaid Servicing Fees and for
unreimbursed Servicing Advances, the Servicer's right to reimburse itself
pursuant to this subclause (c) with respect to any Mortgage Loan being limited
to related Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds,
REO Disposition Proceeds and such other amounts as may be collected by the
Servicer from the Mortgagor or otherwise relating to the Mortgage Loan, it
being understood that, in the case of any such reimbursement, the Servicer's
right thereto shall be prior to the rights of the Purchaser unless the Seller
is required to repurchase a Mortgage Loan pursuant to Subsection 7.03, in
which case the Servicer's right to such reimbursement shall be subsequent to
the payment to the Purchaser of the Repurchase Price pursuant to Subsection
7.03 and all other amounts required to be paid to the Purchaser with respect
to such Mortgage Loan;
(d) to reimburse itself for unreimbursed Servicing Advances and
for xxxxxxxxxxxx X&X Advances, in accordance with Subsection 11.16, to the
extent that such amounts are nonrecoverable by the Servicer pursuant to
subclause (b) or (c) above, provided that the Mortgage Loan for which such
advances were made is not required to be repurchased by the Seller pursuant to
Subsection 7.03;
(e) to reimburse itself for expenses incurred by and reimbursable
to it pursuant to Subsection 12.01;
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(f) to withdraw amounts to make P&I Advances in accordance with
Subsection 11.16;
(g) to pay to itself any interest earned or any investment
earnings on funds deposited in the Custodial Account;
(h) to withdraw any amounts inadvertently deposited in the
Custodial Account; and
(i) to clear and terminate the Custodial Account upon the
termination of this Agreement.
Subsection 11.06 Establishment of Escrow Account; Deposits in
Escrow Account. The Servicer shall segregate and hold all funds collected and
received pursuant to each Mortgage Loan which constitute Escrow Payments
separate and apart from any of its own funds and general assets and shall
establish and maintain one or more Escrow Accounts (collectively, the "Escrow
Account"), titled "GreenPoint Mortgage Funding, Inc., in trust for Xxxxxx
Xxxxxxx Mortgage Capital Inc. as Purchaser of Mortgage Loans and various
Mortgagors." The Escrow Account shall be established with a commercial bank, a
savings bank or a savings and loan association (which may be a depository
affiliate of Servicer), which meets the guidelines set forth by Xxxxxx Mae or
Xxxxxxx Mac as an eligible institution for escrow accounts. In any case, the
Escrow Account shall be insured by the FDIC in a manner which shall provide
maximum available insurance thereunder and which may be drawn on by the
Servicer. The creation of any Escrow Account shall be evidenced by a
certification in the form of Exhibit 6 hereto, in the case of an account
established with a depository affiliate of the Servicer, or by a letter
agreement in the form of Exhibit 7 hereto, in the case of an account held by a
depository. In either case, a copy of such certification or letter agreement
shall be furnished to the Purchaser upon request.
The Servicer shall deposit in the Escrow Account on a daily basis,
and retain therein: (a) 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 (b) all amounts
representing proceeds of any hazard insurance policy which are to be applied
to the restoration or repair of any Mortgaged Property. The Servicer shall
make withdrawals therefrom only in accordance with Subsection 11.07. As part
of its servicing duties, the Servicer shall pay to the Mortgagors interest on
funds in the Escrow Account, to the extent required by law.
Subsection 11.07 Withdrawals From Escrow Account. Withdrawals from
the Escrow Account shall be made by the Servicer only (a) to effect timely
payments of ground rents, taxes, assessments, fire and hazard insurance
premiums or other items constituting Escrow Payments for the related Mortgage,
(b) to reimburse the Servicer for any Servicing Advance made by Servicer
pursuant to Subsection 11.08 with respect to a related Mortgage Loan, (c) to
refund to any Mortgagor any funds found to be in excess of the amounts
required under the terms of the related Mortgage Loan, (d) for transfer to the
Custodial Account upon default of a Mortgagor or in accordance with the terms
of the related Mortgage Loan and if permitted by applicable law, (e) for
application to restore or repair of the Mortgaged Property, (f) to pay to the
Mortgagor, to the extent required by law, any interest paid on the funds
deposited in the Escrow
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Account, (g) to pay to itself any interest earned on funds deposited in the
Escrow Account (and not required to be paid to the Mortgagor), (h) to the
extent permitted under the terms of the related Mortgage Note and applicable
law, to pay late fees with respect to any Monthly Payment which is received
after the applicable grace period, (i) to withdraw suspense payments that are
deposited into the Escrow Account, (j) to withdraw any amounts inadvertently
deposited in the Escrow Account or (k) to clear and terminate the Escrow
Account upon the termination of this Agreement.
Subsection 11.08 Payment of Taxes, Insurance and Other Charges;
Collections Thereunder. With respect to each Mortgage Loan, the Servicer shall
maintain accurate records reflecting the status of ground rents, taxes,
assessments and other charges which are or may become a lien upon the
Mortgaged Property and the status of fire and hazard insurance coverage and
shall obtain, from time to time, all bills for the payment of such charges
(including renewal premiums) and shall effect payment thereof prior to the
applicable penalty or termination date and at a time appropriate for securing
maximum discounts allowable, employing for such purpose deposits of the
Mortgagor in the Escrow Account which shall have been estimated and
accumulated by the Servicer in amounts sufficient for such purposes, as
allowed under the terms of the Mortgage. If a Mortgage does not provide for
Escrow Payments, the Servicer shall determine that any such payments are made
by the Mortgagor. The Servicer assumes full responsibility for the timely
payment of all such bills and shall effect timely payments of all such bills
irrespective of each Mortgagor's faithful performance in the payment of same
or the making of the Escrow Payments and shall make Servicing Advances to
effect such payments, subject to its ability to recover such Servicing
Advances pursuant to Subsection 11.07(b). With respect to each Mortgage Loan,
on or before January 31st of each year during the term of this Agreement,
beginning January 31, 2006, the Servicer shall ensure that all taxes due
during the prior calendar year have been paid on the related Mortgaged
Property.
With respect to each Mortgage Loan identified on the Mortgage Loan
Schedule as an LPMI Loan, Servicer shall maintain in full force and effect any
LPMI Policy, and from time to time, withdraw the premium with respect to such
Mortgage Loans from the Custodial Account in order to pay the premium thereon
on a timely basis. In the event that the interest payments made with respect
to the Mortgage Loan are less than the premium with respect to the LPMI
Policy, Servicer shall advance from its own funds the amount of any such
shortfall in the LPMI Policy premiums, in payment of such premium. Any such
advance shall be a Servicing Advance subject to reimbursement. In the event
that such LPMI Policy shall be terminated, Servicer shall obtain from another
insurer acceptable under the Underwriting Guidelines, a comparable replacement
policy, with a total coverage equal to the remaining coverage of such
terminated LPMI Policy, at substantially the same fee level. If the insurer
shall cease to be an insurer acceptable under the Underwriting Guidelines,
Servicer shall determine whether recoveries under the LPMI Policy are
jeopardized for reasons related to the financial condition of such insurer, it
being understood that Servicer shall in no event have any responsibility or
liability for any failure to recover under the LPMI Policy for such reason. If
Servicer determines that recoveries are so jeopardized, it shall notify the
Purchaser and the Mortgagor, if required, and obtain from another insurer
acceptable under the Underwriting Guidelines a replacement insurance policy.
Servicer shall not take any action which would result in noncoverage under any
applicable LPMI Policy of any loss which, but for the actions of Servicer
would have been
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covered thereunder. In connection with any assumption or substitution
agreement entered into or to be entered into Servicer shall promptly notify
the insurer under the related LPMI Policy, if any, of such assumption or
substitution of liability in accordance with the terms of such LPMI Policy and
shall take all actions which may be required by such insurer as a condition to
the continuation of coverage under such LPMI Policy. If such LPMI Policy is
terminated as a result of such assumption or substitution of liability,
Servicer shall obtain a replacement LPMI Policy as provided above.
Purchaser, in its sole discretion, at any time, may (i) either
obtain an additional LPMI Policy on any Mortgage Loan which already has an
LPMI Policy in place, or (ii) obtain a LPMI Policy for any Mortgage Loan which
does not already have a LPMI Policy in place. In any event, Servicer agrees to
administer such LPMI Policies in accordance with the Agreement or any
Reconstitution Agreement.
In connection with its activities as servicer, Servicer agrees to
prepare and present, on behalf of itself and the Purchaser, claims to the
insurer under any PMI Policy or LPMI Policy in a timely fashion in accordance
with the terms of such PMI Policy and LPMI Policy and, in this regard, to take
such action as shall be necessary to permit recovery under any PMI Policy or
LPMI Policy respecting a defaulted Mortgage Loan. Any amounts collected by
Servicer under any PMI Policy shall be deposited in the Escrow Account.
Subsection 11.09 Transfer of Accounts. The Servicer may transfer
the Custodial Account or the Escrow Account to a different depository
institution. Such transfer shall be made only upon obtaining the prior written
consent of the Purchaser; such consent not to be unreasonably withheld.
Subsection 11.10 Maintenance of Hazard Insurance. The Servicer
shall cause to be maintained for each Mortgage Loan fire and hazard insurance
with extended coverage customary in the area where the Mortgaged Property is
located that conforms to the requirements of Xxxxxx Xxx or Xxxxxxx Mac. If the
Mortgaged Property is in an area identified in the Federal Register by the
Federal Emergency Management Agency as having special flood hazards (and such
flood insurance has been made available) the Servicer will cause to be
maintained a flood insurance policy meeting the requirements of Xxxxxx Mae or
Xxxxxxx Mac. The Servicer shall also maintain on REO Property fire and hazard
insurance with extended coverage in an amount which meets the requirements of
Xxxxxx Mae or Xxxxxxx Mac. Any amounts collected by the Servicer under any
such policies (other than amounts to be deposited in the Escrow Account and
applied to the restoration or repair of the property subject to the related
Mortgage or property acquired in liquidation of the Mortgage Loan, or to be
released to the Mortgagor in accordance with Accepted Servicing Procedures)
shall be deposited in the Custodial Account, subject to withdrawal pursuant to
Subsection 11.05. It is understood and agreed that no earthquake or other
additional insurance need be required by the Servicer of any Mortgagor or
maintained on REO Property 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 policies required hereunder shall be endorsed with
standard mortgagee clauses with loss payable to Servicer, and shall provide
for at least thirty (30) days prior written notice of any cancellation,
reduction in amount or material change in coverage to the Servicer. The
Servicer shall not interfere with the Mortgagor's freedom of choice in
selecting either its insurance carrier or agent;
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provided, however, that the Servicer shall not accept any such insurance
policies that do not conform to the requirements of Xxxxxx Mae or Xxxxxxx Mac.
Subsection 11.11 Fidelity Bond; Errors and Omissions Insurance.
The Servicer shall maintain, at its own expense, a blanket Fidelity Bond and
an errors and omissions insurance policy, with broad coverage on all officers,
employees or other persons acting in any capacity requiring such persons to
handle funds, money, documents or papers relating to the Mortgage Loans. These
policies shall insure the Servicer against losses resulting from dishonest or
fraudulent acts committed by the Servicer's personnel, any employees of
outside firms that provide data processing services for the Servicer, and
temporary contract employees or student interns. The Fidelity Bond shall also
protect and insure the Servicer against losses in connection with the release
or satisfaction of a Mortgage Loan without having obtained payment in full of
the indebtedness secured thereby. No provision of this Subsection 11.11
requiring such Fidelity Bond and errors and omissions insurance shall diminish
or relieve the Servicer of its duties and obligations as set forth in this
Agreement. The minimum coverage under any such Fidelity Bond and insurance
policy shall be at least equal to the corresponding amounts required by Xxxxxx
Mae in the Xxxxxx Xxx Servicing Guide or by Xxxxxxx Mac in the Xxxxxxx Xxx
Xxxxxxx' & Servicers' Guide, as amended or restated from time to time, or in
an amount as may be permitted to the Servicer by express waiver of Xxxxxx Mae
or Xxxxxxx Mac.
Subsection 11.12 Title, Management and Disposition of REO
Property. If 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 FV-I Inc., a Delaware corporation, in either case as nominee, for
the benefit of the Purchaser of record on the date of acquisition of title
(the "Owner"). If the Servicer is not authorized or permitted to hold title to
real property in the state where the REO Property is located, or would be
adversely affected under the "doing business" or tax laws of such state by so
holding title, the deed or certificate of sale shall be taken in the name of
such Person or Persons as shall be consistent with an opinion of counsel
obtained by the Servicer, at the expense of the Purchaser, from an attorney
duly licensed to practice law in the state where the REO Property is located.
The Person or Persons holding such title other than the Owner shall
acknowledge in writing that such title is being held as nominee for the Owner.
The Servicer shall cause to be deposited on a daily basis in the
Custodial Account all revenues received with respect to the conservation and
disposition of 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 and the fees of any managing agent acting on behalf of the
Servicer. Any disbursement in excess of $5,000 shall be made only with the
written approval of the Purchaser. The Servicer shall make distributions as
required on each Remittance Date to the Purchaser of the net cash flow from
the REO Property (which shall equal the revenues from such REO Property net of
the expenses described above and of any reserves reasonably required from time
to time to be maintained to satisfy anticipated liabilities for such
expenses).
The disposition of REO Property shall be carried out by the
Servicer in accordance with the provisions of this Agreement and shall be made
at such price, and upon such terms and conditions, as the Servicer deems to be
in the best interests of the Owner. Upon the
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request of the Owner, and at the Owner's expense, the Servicer shall cause an
appraisal of the REO Property to be performed for the Owner. The proceeds of
sale of the REO Property shall be promptly deposited in the Custodial Account
and, as soon as practical thereafter, the expenses of such sale shall be paid,
the Servicer shall reimburse itself for any related unreimbursed Servicing
Advances, unpaid Servicing Fees, unreimbursed advances made pursuant to
Subsection 11.16 and any appraisal performed pursuant to this paragraph and
the net cash proceeds of such sale remaining in the Custodial Account shall be
distributed to the Purchaser.
The Servicer shall either itself or through an agent selected by
the Servicer, manage, conserve, protect and operate the REO Property in the
same manner that it manages, conserves, protects and operates other foreclosed
property for its own account, and in the same manner that similar property in
the same locality as the REO Property is managed. The Servicer shall attempt
to sell the same (and may temporarily rent the same) on such terms and
conditions as the Servicer deems to be in the best interest of the Owner.
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
Servicer 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.
Upon request, with respect to any REO Property, the Servicer shall
furnish to the Owner a statement covering the Servicer's efforts in connection
with the sale of that REO Property and any rental of the REO Property
incidental to the sale thereof for the previous month (together with an
operating statement).
Subsection 11.13 Servicing Compensation. As compensation for its
services hereunder, the Servicer shall be entitled to retain the Servicing Fee
from interest payments on the Mortgage Loans. Additional servicing
compensation in the form of assumption fees, late payment charges and other
ancillary income shall be retained by the Servicer to the extent not required
to be deposited in the Custodial Account. The Servicer shall be required to
pay all expenses incurred by it in connection with its servicing activities
hereunder and shall not be entitled to reimbursement therefor except as
specifically provided for herein.
Subsection 11.14 Distributions. On each Remittance Date the
Servicer shall remit by wire transfer of immediately available funds to the
account designated in writing by the Purchaser of record on the preceding
Record Date (a) all Monthly Payments due in the Due Period relating to such
Remittance Date, whether received or not, plus (b) all amounts, if any, which
the Servicer is obligated to distribute pursuant to Subsection 11.16, plus (c)
any amounts attributable to Principal Prepayments received in the calendar
month preceding the month in which the Remittance Date occurs, together with
any additional interest required to be deposited in the Custodial Account in
connection with such Principal Prepayments in accordance with Subsection
11.04(i), minus (d) all amounts that may be withdrawn from the Custodial
Account pursuant to Subsections 11.05(b) through (e).
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With respect to any remittance received by the Purchaser after the
Business Day on which such payment was due, the Servicer shall pay to the
Purchaser interest on any such late payment at an annual rate equal to the
Prime Rate, adjusted as of the date of each change, plus three percent (3%),
but in no event greater than the maximum amount permitted by applicable law.
Such interest shall be paid by the Servicer to the Purchaser on the date such
late payment is made and shall cover the period commencing with the Business
Day on which such payment was due and ending with the Business Day immediately
preceding the Business Day on which such payment is made, both inclusive. The
payment by the Servicer of any such interest shall not be deemed an extension
of time for payment or a waiver of any Event of Default by the Servicer.
Subsection 11.15 Statements to the Purchaser. Not later than the
10th calendar day of each month (or, if such 10th day is not a Business Day,
the following Business Day), the Servicer shall forward to the Purchaser in
hard copy and electronic format mutually acceptable to the Purchaser and the
Seller, a statement, substantially in the form of Exhibit 9 and certified by a
Servicing Officer, setting forth (a) the amount of the distribution made on
such Remittance Date which is allocable to principal and allocable to
interest; (b) the amount of servicing compensation received by the Servicer
during the prior calendar month; (c) the aggregate Stated Principal Balance
and the aggregate unpaid principal balance of the Mortgage Loans as of the
last day of the preceding month; and (d) the paid through date for each
Mortgage Loan. Such statement shall also include information regarding
delinquencies on Mortgage Loans, indicating the number and aggregate principal
amount of Mortgage Loans which are either one (1), two (2) or three (3) or
more months delinquent and the book value of any REO Property. The Servicer
shall submit to the Purchaser monthly a liquidation report with respect to
each Mortgaged Property sold in a foreclosure sale as of the related Record
Date and not previously reported. Such liquidation report shall be
incorporated into the remittance report delivered to Purchaser in the form of
Exhibit 9 hereto.
The Servicer shall furnish to the Purchaser an individual loan
accounting report in hard copy and electronic format mutually acceptable to
the Purchaser and the Seller, as of the last Business Day of each month, in
the Purchaser's assigned loan number order (provided that such loan numbers
previously have been provided in writing by the Purchaser to the Servicer) to
document Mortgage Loan payment activity on an individual Mortgage Loan basis.
With respect to each month, the corresponding individual loan accounting
report shall be received by the Purchaser no later than the fifth Business Day
of the following month, which report shall contain the following:
(i) with respect to each Monthly Payment, the amount of such
remittance allocable to principal (including a separate breakdown of any
Principal Prepayment, including the date of such prepayment, along with
a detailed report of interest on principal prepayment amounts remitted
in accordance with Subsection 11.14);
(ii) with respect to each Monthly Payment, the amount of such
remittance allocable to interest; and
(iii) the next actual due date for each Mortgage Loan.
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Within a reasonable period of time after the end of each calendar
year, the Servicer will furnish a report to each Person that was a Purchaser
at any time during such calendar year. Such report shall state the aggregate
of amounts distributed to the Purchaser for such calendar year. Such
obligation of the Servicer shall be deemed to have been satisfied to the
extent that substantially comparable information shall be provided by the
Servicer pursuant to any requirements of the Code.
The Servicer shall prepare and file any and all tax returns,
information statements or other filings required to be delivered to any
governmental taxing authority or to the Purchaser pursuant to any applicable
law with respect to the Mortgage Loans and the transactions contemplated
hereby. In addition, the Servicer shall provide the Purchaser with such
information concerning the Mortgage Loans as is necessary for such Purchaser
to prepare federal income tax returns as the Purchaser may reasonably request
from time to time.
Subsection 11.16 Advances by the Servicer. On the Business Day
immediately preceding each Remittance Date, the Servicer shall either (a)
deposit in the Custodial Account from its own funds an amount equal to the
aggregate amount of all Monthly Payments (with interest adjusted to the
Mortgage Loan Remittance Rate) which were due on the Mortgage Loans during the
applicable Due Period and which were delinquent at the close of business on
the immediately preceding Determination Date (each such advance, a "P&I
Advance"), (b) cause to be made an appropriate entry in the records of the
Custodial Account that amounts held for future distribution have been, as
permitted by this Subsection 11.16, used by the Servicer in discharge of any
such P&I Advance or (c) make P&I Advances in the form of any combination of
(a) or (b) aggregating the total amount of P&I Advances to be made. Any
amounts held for future distribution and so used shall be replaced by the
Servicer by deposit in the Custodial Account on or before any future
Remittance Date if funds in the Custodial Account on such Remittance Date
shall be less than payments to the Purchaser required to be made on such
Remittance Date. The Servicer's obligation to make P&I Advances as to any
Mortgage Loan will continue through the last Monthly Payment due prior to the
payment in full of a Mortgage Loan, or through the last Remittance Date prior
to the Remittance Date for the distribution of all other payments or
recoveries (including proceeds under any title, hazard or other insurance
policy, or condemnation awards) with respect to a Mortgage Loan; provided,
however, that such obligation shall cease (i) for any Mortgage Loan and on any
Remittance Date that the distribution of all Liquidation Proceeds and other
payments or recoveries (including Insurance Proceeds and Condemnation
Proceeds) occurs with respect to such Mortgage Loan or (ii) if the Servicer,
in its good faith judgment, determines that P&I Advances would not be
recoverable pursuant to Subsection 11.05(d). The determination by the Servicer
that a P&I Advance, if made, would be nonrecoverable, shall be evidenced by an
Officer's Certificate of the Servicer, delivered to the Purchaser, which
details the reasons for such determination.
Subsection 11.17 Assumption Agreements. The Servicer will use its
best efforts to enforce any "due-on-sale" provision contained in any Mortgage
or Mortgage Note, provided that the Servicer shall permit such assumption if
so required in accordance with the terms of the Mortgage or the Mortgage Note.
When the Mortgaged Property has been conveyed by the Mortgagor, the Servicer
will, to the extent it has knowledge of such conveyance, exercise its rights
to accelerate the maturity of such Mortgage Loan under the "due-on-sale"
clause applicable thereto; provided, however, the Servicer will not exercise
such rights if prohibited by
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law from doing so. In connection with any such assumption, the outstanding
principal amount, the Monthly Payment or the Mortgage Interest Rate of the
related Mortgage Note shall not be changed, and the term of the Mortgage Loan
will not be increased or decreased. If an assumption is allowed pursuant to
this Subsection 11.17, the Servicer is authorized to enter into a substitution
of liability agreement with the purchaser of the Mortgaged Property pursuant
to which the original Mortgagor is released from liability and the purchaser
of the Mortgaged Property is substituted as Mortgagor and becomes liable under
the Mortgage Note.
Subsection 11.18 Satisfaction of Mortgages and Release of Mortgage
Files. Upon the payment in full of any Mortgage Loan, or the receipt by the
Servicer of a notification that payment in full will be escrowed in a manner
customary for such purposes, the Servicer will obtain the portion of the
Mortgage File that is in the possession of the Purchaser or its designee,
prepare and process any required satisfaction or release of the Mortgage and
notify the Purchaser in accordance with the provisions of this Agreement. The
Purchaser agrees to deliver to the Servicer the original Mortgage Note for any
Mortgage Loan not later than three (3) Business Days following its receipt of
a notice from the Servicer that such a payment in full has been received or
that a notification has been received that such a payment in full shall be
made. Such Mortgage Note shall be held by the Servicer, in trust, for the
purpose of canceling such Mortgage Note and delivering the cancelled Mortgage
Note to the Mortgagor in a timely manner as and to the extent provided under
applicable state law. If the Mortgage has been recorded in the name of MERS or
its designee, the Servicer shall take all necessary action to effect the
release of the Mortgage Loan on the records of MERS.
If the Servicer grants a satisfaction or release of a Mortgage
without having obtained payment in full of the indebtedness secured by the
Mortgage or should the Servicer otherwise prejudice any right the Purchaser
may have under the mortgage instruments, the Servicer, upon written demand of
the Purchaser, shall remit to the Purchaser the Stated Principal Balance of
the related Mortgage Loan by deposit thereof in the Custodial Account. The
Fidelity Bond shall insure the Servicer against any loss it may sustain with
respect to any Mortgage Loan not satisfied in accordance with the procedures
set forth herein.
Subsection 11.19 Information to Be Provided by the Servicer in
Compliance with Regulation AB. In connection with any Securitization
Transaction the Servicer shall (i) within five (5) Business Days following
request by the Purchaser, provide to the Purchaser (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, the
information and materials specified in paragraphs (a), (b), (c) and (f) of
this Section, and (ii) as promptly as practicable following notice to or
discovery by the Servicer, provide to the Purchaser (in writing and in form
and substance reasonably satisfactory to the Purchaser) the information
specified in paragraph (d) of this Section.
(a) If so requested by the Purchaser, the Servicer shall provide
such information regarding (i) the Servicer, 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:
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(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, 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 may
reasonably request for the purpose of compliance with Item
1110(b)(2) of Regulation AB;
(C) a description of any legal or governmental proceedings
pending (or known to be contemplated) against the Servicer, each
Third-Party Originator and each Subservicer that would be material
to holders of securities in a Securitization Transaction; and
(D) a description of any affiliation or relationship between
the Servicer, each Third-Party Originator, each Subservicer and
any of the following parties to a Securitization Transaction, as
such parties are identified to the Servicer by the Purchaser in
writing in advance of such Securitization Transaction:
(1) the sponsor;
(2) the depositor;
(3) the issuing entity;
(4) any servicer;
(5) any trustee;
(6) any originator;
(7) any significant obligor;
(8) any enhancement or support provider; and
(9) any other material transaction party.
(b) If so requested by the Purchaser, the Servicer 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 Servicer, if the Servicer is an originator of Mortgage
Loans (including as an acquirer of Mortgage Loans from a Qualified
Correspondent), and/or (ii) each Third-Party Originator, but in each case only
to the extent that (A) the Seller has
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not sold such mortgage loans on a servicing-released basis or (B) such
information relates to "original characteristics" as described in Item
1105(a)(3)(iii) of Regulation AB. Such Static Pool Information shall be
prepared by the Servicer (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 Servicer (or Third-Party Originator) Static Pool Information
with respect to more than one mortgage loan type, the Purchaser 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 Servicer, and need not be customized
for the Purchaser. 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.
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 Servicer 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 Servicer.
If so requested by the Purchaser, the Servicer 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, 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 Servicer's or
Third-Party Originator's originations or purchases, to calendar months
commencing January 1, 2006, as the Purchaser shall reasonably request. Such
statements and letters shall be addressed to and be for the benefit of such
parties as the Purchaser shall designate, which may include, by way of
example, any Sponsor 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.
(c) If so requested by the Purchaser, the Servicer shall provide
such information regarding the Servicer, as servicer of the Mortgage Loans,
and each Subservicer (each of the Servicer and each Subservicer, for purposes
of this paragraph, a "Servicer"), as is requested for the purpose of
compliance with Item 1108 of Regulation AB. Such information shall include, at
a minimum:
(A) the Servicer's form of organization;
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(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, to any
analysis of the servicing of the Mortgage Loans or the related
asset-backed securities, as applicable, including, without
limitation:
(1) whether any prior securitizations of mortgage
loans of a type similar to the Mortgage Loans involving the
Servicer have defaulted or experienced an early amortization
or other performance triggering event because of servicing
during the three-year period immediately preceding the
related Securitization Transaction;
(2) the extent of outsourcing the Servicer utilizes;
(3) whether there has been previous disclosure of
material noncompliance with the applicable servicing
criteria with respect to other securitizations of
residential mortgage loans involving the Servicer as a
servicer during the three-year period immediately preceding
the related Securitization Transaction;
(4) whether the Servicer has been terminated as
servicer in a residential mortgage loan securitization,
either due to a servicing default or to application of a
servicing performance test or trigger; and
(5) such other information as the Purchaser may
reasonably request for the purpose of compliance with Item
1108(b)(2) of Regulation AB;
(C) a description of any material changes during the
three-year period immediately preceding the related Securitization
Transaction to the Servicer's policies or procedures with respect
to the servicing function it will perform under this Agreement and
any Reconstitution Agreements for mortgage loans of a type similar
to the Mortgage Loans;
(D) information regarding the Servicer's financial
condition, to the extent that there is a material risk that an
adverse financial event or circumstance involving the Servicer
could have a material adverse effect on the performance by the
Servicer 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
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Securitization Transaction, which may be limited to a statement by
an authorized officer of the Servicer to the effect that the
Servicer has made all advances required to be made on residential
mortgage loans serviced by it during such period, or, if such
statement would not be accurate, information regarding the
percentage and type of advances not made as required, and the
reasons for such failure to advance;
(F) a description of the Servicer's processes and procedures
designed to address any special or unique factors involved in
servicing loans of a similar type as the Mortgage Loans;
(G) a description of the Servicer's processes for handling
delinquencies, losses, bankruptcies and recoveries, such as
through liquidation of mortgaged properties, sale of defaulted
mortgage loans or workouts; and
(H) information as to how the Servicer defines or determines
delinquencies and charge-offs, including the effect of any grace
period, re-aging, restructuring, partial payments considered
current or other practices with respect to delinquency and loss
experience.
(d) For the purpose of satisfying the reporting obligation under
the Exchange Act with respect to any class of asset-backed securities, the
Servicer shall (or shall cause each Subservicer and Third-Party Originator to)
(i) promptly notify the Purchaser in writing of (A) any material litigation or
governmental proceedings pending against the Servicer, any Subservicer or any
Third-Party Originator that would be material to a security holder, (B) any
affiliations or relationships that develop following the closing date of a
Securitization Transaction between the Servicer, any Subservicer or any
Third-Party Originator and any of the parties specified in clause (D) of
paragraph (a) of this Section (and any other parties identified in writing by
the requesting party) with respect to such Securitization Transaction, (C) any
Event of Default under the terms of this Agreement or any applicable
Reconstitution Agreement related thereto, (D) any merger, consolidation or
sale of substantially all of the assets of the Servicer, and (E) the
Servicer's entry into an agreement with a Subservicer to perform or assist in
the performance of any of the Servicer's obligations under this Agreement or
any applicable Reconstitution Agreement related thereto and (ii) provide to
the Purchaser a description of such proceedings, affiliations or
relationships. Written notice provided in compliance with this Subsection
11.19(d) shall be substantially in the form attached as Exhibit 18 hereto.
(e) As a condition to the succession to the Servicer or any
Subservicer as servicer or subservicer under this Agreement or any
Reconstitution Agreement by any Person (i) into which the Servicer or such
Subservicer may be merged or consolidated, or (ii) which may be appointed as a
successor to the Servicer or any Subservicer, the Servicer shall provide to
the Purchaser, at least fifteen (15) calendar days prior to the effective date
of such succession or appointment, (x) written notice to the Purchaser of such
succession or appointment and (y) in writing and in form and substance
reasonably satisfactory to the Purchaser, all information reasonably requested
by the Purchaser 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. Written
notice
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provided in compliance with this Subsection 11.19(e) shall be substantially in
the form attached as Exhibit 18 hereto.
(f) In addition to such information as the Servicer, 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 Servicer or any Subservicer, the
Servicer or such Subservicer, as applicable, shall, to the extent the Servicer
or such Subservicer has knowledge, provide to the party responsible for filing
such report (including, if applicable, the Master Servicer) notice of the
occurrence of any of the following events along with all information, data,
and materials related thereto as may be required to be included in the related
distribution report on Form 10-D (as specified in the provisions of Regulation
AB referenced below):
(i) any material modifications, extensions or waivers of
pool asset terms, fees, penalties or payments during the
distribution period or that have cumulatively become material over
time (Item 1121(a)(11) of Regulation AB);
(ii) material breaches of pool asset representations or
warranties or transaction covenants (Item 1121(a)(12) of
Regulation AB); and
(iii) information regarding new asset-backed securities
issuances backed by the same pool assets, any pool asset changes
(such as, additions, substitutions or repurchases), and any
material changes in origination, underwriting or other criteria
for acquisition or selection of pool assets (Item 1121(a)(14) of
Regulation AB).
Written notice provided in compliance with this Subsection
11.19(f) shall be substantially in the form attached as Exhibit 18 hereto.
(g) The Servicer shall provide to the Purchaser, any Master
Servicer and any Depositor, evidence of the authorization of the person
signing any certification or statement, copies or other evidence of Fidelity
Bond Insurance and Errors and Omission Insurance policy, financial information
and reports, and such other information related to the Servicer or any
Subservicer or the Servicer or such Subservicer's performance hereunder.
(h) The Servicer shall be deemed to represent to the Purchaser, as
of the date on which information is first provided to the Purchaser under this
Subsection 11.19 that, except as disclosed in writing to the Purchaser prior
to such date: (i) the Servicer 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 Servicer; (ii) the Servicer has not been terminated as servicer in a
residential mortgage loan securitization, either due to a servicing default or
to application of a servicing performance test or trigger; (iii) no material
noncompliance with the applicable servicing criteria with respect to other
securitizations of residential mortgage loans involving the Servicer as
servicer has been disclosed or reported by the Servicer; (iv) no material
changes to the Servicer's policies or procedures with respect to the servicing
function it will perform under this Agreement and any Reconstitution Agreement
for mortgage loans of a type similar to the Mortgage Loans have occurred
during the three-year
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period immediately preceding the related Securitization Transaction; (v) there
are no aspects of the Servicer's financial condition that could have a
material adverse effect on the performance by the Servicer of its servicing
obligations under this Agreement or any Reconstitution Agreement; (vi) there
are no legal or governmental proceedings pending (or known to be contemplated)
against the Servicer, any Subservicer or any Third-Party Originator that would
be material to holders of securities in a Securitization Transaction; and
(vii) there are no affiliations, relationships or transactions relating to the
Servicer, any Subservicer or any Third-Party Originator with respect to any
Securitization Transaction and any party thereto identified of a type
described in Item 1119 of Regulation AB.
The Seller hereby represents and warrants that it is unable
without unreasonable effort or expense to provide (i) Static Pool Information
with respect to mortgage loans that the Seller has sold on a
servicing-released basis, other than such information as relates to "original
characteristics" as described in Item 1105(a)(3)(iii) of Regulation AB and
(ii) Static Pool Information regarding cumulative losses with respect to any
mortgage loans originated prior to January 1, 2006.
(i) If so requested by the Purchaser on any date following the
date on which information is first provided to the Purchaser under this
Subsection 11.19, the Servicer shall, within five (5) Business Days following
such request, confirm in writing the accuracy of the representations and
warranties set forth in paragraph (h) of this Section or, if any such
representation and warranty is not accurate as of the date of such request,
provide reasonably adequate disclosure of the pertinent facts, in writing, to
the requesting party.
Subsection 11.20 Annual Statement as to Compliance; Report on
Assessment of Compliance and Attestation. (a) On or before March 1 of each
calendar year, commencing in 2007, the Servicer shall:
(i) deliver to the Purchaser a statement of compliance addressed
to the Purchaser and signed by an authorized officer of the Servicer, to
the effect that (x) a review of the Servicer'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 (y) to the best of such officers' knowledge,
based on such review, the Servicer 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;
(ii) deliver to the Purchaser a report (in form and substance
reasonably satisfactory to the Purchaser) regarding the Servicer's
assessment of compliance with the Servicing Criteria during the
immediately preceding calendar year, as required under Rules 13a-18 and
15d-18 of the Exchange Act and Item 1122 of Regulation AB. Such report
shall be addressed to the Purchaser and signed by an authorized officer
of the Servicer, and shall address each of the Servicing Criteria
specified on a certification
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substantially in the form of Exhibit 17 hereto delivered to the
Purchaser concurrently with the execution of this Agreement;
(iii) deliver to the Purchaser a report of a registered public
accounting firm reasonably acceptable to the Purchaser that attests to,
and reports on, the assessment of compliance made by the Servicer and
delivered pursuant to the preceding paragraph. Such attestation shall be
in accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under
the Securities Act and the Exchange Act;
(iv) cause each Subservicer, and each Subcontractor determined by
the Servicer pursuant to Subsection 11.24(b) to be "participating in the
servicing function" within the meaning of Item 1122 of Regulation AB, to
deliver to the Purchaser an assessment of compliance and accountants'
attestation as and when provided in paragraphs (ii) and (iii) of this
Section; and
(v) deliver, and cause each Subservicer and Subcontractor
described in clause (iv) above, to the Purchaser 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 as Exhibit 16.
The Servicer acknowledges that the parties identified in clause
(a)(v) above may rely on the certification provided by the Servicer pursuant
to such clause in signing a Sarbanes Certification and filing such with the
Commission. Neither the Purchaser nor any Depositor will request delivery of a
certification under clause (a)(v) 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.
(b) Each assessment of compliance provided by a Subservicer
pursuant to Subsection 11.20(a)(ii) shall address each of the Servicing
Criteria specified on a certification substantially in the form of Exhibit 17
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 this Subsection 11.20(a)(iv) need not address
any elements of the Servicing Criteria other than those specified by the
Servicer pursuant to Subsection 11.24.
Subsection 11.21 Annual Independent Public Accountants' Servicing
Report or Attestation. On or before March 1, 2007, the Servicer at its expense
shall cause a firm of independent public accountants which is a member of the
American Institute of Certified Public Accountants to furnish a statement to
the Purchaser to the effect that such firm has, with respect to the Servicer's
overall servicing operations, examined such operations in accordance with the
requirements of the Uniform Single Attestation Program for Mortgage Bankers,
stating such firm's conclusions relating thereto.
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Notwithstanding the foregoing, the Servicer's obligation to
deliver a report under this Subsection as to any calendar year, beginning with
the report required in March 2007, shall be satisfied if an accountants'
attestation report is delivered in compliance with Subsection 11.20(a)(iii)
for such calendar year.
Subsection 11.22 Servicer Shall Provide Access and Information as
Reasonably Required. The Servicer shall provide to the Purchaser, and for any
Purchaser insured by FDIC or NAIC, the supervisory agents and examiners of
FDIC and OTS or NAIC, access to any documentation regarding the Mortgage Loans
which may be required by applicable regulations. Such access shall be afforded
without charge, but only upon reasonable request, during normal business hours
and at the offices of the Servicer.
In addition, the Servicer shall furnish upon request by the
Purchaser, during the term of this Agreement, such periodic, special or other
reports or information, whether or not provided for herein, as shall be
necessary, reasonable and appropriate with respect to the purposes of this
Agreement and applicable regulations. All such reports or information shall be
provided by and in accordance with all reasonable instructions and directions
the Purchaser may require. The Servicer agrees to execute and deliver all such
instruments and take all such action as the Purchaser, from time to time, may
reasonably request in order to effectuate the purposes and to carry out the
terms of this Agreement.
Subsection 11.23 Transfer of Servicing. On the related Transfer
Date, if any, the Purchaser, or its designee, shall assume all servicing
responsibilities related to, and the Seller cease all servicing
responsibilities related to, the related Mortgage Loans subject to such
Transfer Date. On or prior to the related Transfer Date, the Seller shall, at
its sole cost and expense, take such steps as may be necessary or appropriate
to effectuate and evidence the transfer of the servicing of the related
Mortgage Loans to the Purchaser, or its designee, including but not limited to
the following:
(a) Notice to Mortgagors. The Seller shall mail to the Mortgagor
of each related Mortgage Loan a letter advising such Mortgagor of the transfer
of the servicing of the related Mortgage Loan to the Purchaser, or its
designee, in accordance with the Xxxxxxxx Xxxxxxxx National Affordable Housing
Act of 1990; provided, however, the content and format of the letter shall
have the prior approval of the Purchaser. The Seller shall provide the
Purchaser with copies of all such related notices no later than the related
Transfer Date.
(b) Notice to Taxing Authorities and Insurance Companies. The
Seller shall transmit to the applicable taxing authorities and insurance
companies (including primary mortgage insurance policy insurers, if
applicable) and/or agents, notification of the transfer of the servicing to
the Purchaser, or its designee, and instructions to deliver all notices, tax
bills and insurance statements, as the case may be, to the Purchaser from and
after the related Transfer Date. The Seller shall provide the Purchaser with
copies of all such notices no later than the related Transfer Date.
(c) Delivery of Servicing Records. The Seller shall forward to the
Purchaser, or its designee, all servicing records and the Servicing File in
the Seller's possession relating to each related Mortgage Loan.
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(d) Escrow Payments. The Seller shall provide the Purchaser, or
its designee, with immediately available funds by wire transfer in the amount
of the net Escrow Payments and suspense balances and all loss draft balances
associated with the related Mortgage Loans. The Seller shall provide the
Purchaser with an accounting statement, in electronic format acceptable to the
Purchaser in its sole discretion, of Escrow Payments and suspense balances and
loss draft balances sufficient to enable the Purchaser to reconcile the amount
of such payment with the accounts of the Mortgage Loans. Additionally, the
Seller shall wire transfer to the Purchaser the amount of any agency, trustee
or prepaid Mortgage Loan payments and all other similar amounts held by the
Seller.
(e) Payoffs and Assumptions. The Seller shall provide to the
Purchaser, or its designee, copies of all assumption and payoff statements
generated by the Seller on the related Mortgage Loans from the related Cut-off
Date to the related Transfer Date.
(f) Mortgage Payments Received Prior to Transfer Date. Prior to
the related Transfer Date all payments received by the Seller on each related
Mortgage Loan shall be properly applied by the Seller to the account of the
particular Mortgagor.
(g) Mortgage Payments Received after Transfer Date. The amount of
any related Monthly Payments received by the Seller after the related Transfer
Date shall be forwarded to the Purchaser by overnight mail on the date of
receipt. The Seller shall notify the Purchaser of the particulars of the
payment, which notification requirement shall be satisfied if the Seller
forwards with its payment sufficient information to permit appropriate
processing of the payment by the Purchaser. The Seller shall assume full
responsibility for the necessary and appropriate legal application of such
Monthly Payments received by the Seller after the related Transfer Date with
respect to related Mortgage Loans then in foreclosure or bankruptcy; provided,
for purposes of this Agreement, necessary and appropriate legal application of
such Monthly Payments shall include, but not be limited to, endorsement of a
Monthly Payment to the Purchaser with the particulars of the payment such as
the account number, dollar amount, date received and any special Mortgagor
application instructions and the Seller shall comply with the foregoing
requirements with respect to all Monthly Payments received by the Seller after
the related Transfer Date.
(h) Misapplied Payments. Misapplied payments shall be processed as
follows:
(i) All parties shall cooperate in correcting misapplication
errors;
(ii) The party receiving notice of a misapplied payment occurring
prior to the related Transfer Date and discovered after such Transfer
Date shall immediately notify the other party;
(iii) If a misapplied payment which occurred prior to the related
Transfer Date cannot be identified and said misapplied payment has
resulted in a shortage in a Custodial Account or Escrow Account, the
Seller shall be liable for the amount of such shortage. The Seller shall
reimburse the Purchaser for the amount of such shortage within thirty
(30) days after receipt of written demand therefor from the Purchaser;
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(iv) If a misapplied payment which occurred prior to the related
Transfer Date has created an improper Purchase Price as the result of an
inaccurate outstanding principal balance, a check shall be issued to the
party shorted by the improper payment application within five (5)
Business Days after notice thereof by the other party; and
(v) Any check issued under the provisions of this Subsection
11.23(h) shall be accompanied by a statement indicating the
corresponding Seller and/or the Purchaser Mortgage Loan identification
number and an explanation of the allocation of any such payments.
(i) Books and Records. On the related Transfer Date, the books,
records and accounts of the Seller with respect to the related Mortgage Loans
shall be in accordance with all applicable Purchaser requirements.
(j) Reconciliation. The Seller shall, on or before the related
Transfer Date, reconcile principal balances and make any monetary adjustments
required by the Purchaser. Any such monetary adjustments will be transferred
between the Seller and the Purchaser as appropriate.
(k) IRS Forms. The Seller shall or shall file all IRS forms 1099,
1099A, 1098 or 1041 and K-1 which are required to be filed on or before the
related Transfer Date in relation to the servicing and ownership of the
related Mortgage Loans. The Seller shall provide copies of such forms to the
Purchaser upon request and shall reimburse the Purchaser for any costs or
penalties incurred by the Purchaser due to the Seller's failure to comply with
this paragraph.
Subsection 11.24 Use of Subservicers and Subcontractors. The
Servicer shall not hire or otherwise utilize the services of any Subservicer
to fulfill any of the obligations of the Servicer as servicer under this
Agreement or any Reconstitution Agreement unless the Servicer complies with
the provisions of paragraph (a) of this Section. The Servicer shall not hire
or otherwise utilize the services of any Subcontractor, and shall not permit
any Subservicer to hire or otherwise utilize the services of any
Subcontractor, to fulfill any of the obligations of the Servicer as servicer
under this Agreement or any Reconstitution Agreement unless the Servicer
complies with the provisions of paragraph (b) of this Section.
(a) It shall not be necessary for the Servicer to seek the consent
of the Purchaser to the utilization of any Subservicer. The Servicer shall
cause any Subservicer used by the Servicer (or by any Subservicer) for the
benefit of the Purchaser and to comply with the provisions of this Section and
with Subsections 11.19(c), (e), (f), (g) and (h), 11.20 and 12.01 of this
Agreement to the same extent as if such Subservicer were the Servicer, and to
provide the information required with respect to such Subservicer under
Subsection 11.19(d) of this Agreement. The Servicer shall be responsible for
obtaining from each Subservicer and delivering to the Purchaser any servicer
compliance statement required to be delivered by such Subservicer under
Subsection 11.20, any assessment of compliance and attestation required to be
delivered by such Subservicer under Subsection 11.20 and any certification
required to be delivered to the Person that will be responsible for signing
the Sarbanes Certification under Subsection 11.20 as and when required to be
delivered.
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(b) It shall not be necessary for the Servicer to seek the consent
of the Purchaser to the utilization of any Subcontractor. The Servicer shall
promptly upon request provide to the Purchaser a written description (in form
and substance satisfactory to the Purchaser) of the role and function of each
Subcontractor utilized by the Servicer or any Subservicer, specifying (i) the
identity of each such Subcontractor, (ii) which (if any) of such
Subcontractors are "participating 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 Servicer (or by any Subservicer) for the benefit of the Purchaser to
comply with the provisions of Subsections 11.20 and 12.01 of this Agreement to
the same extent as if such Subcontractor were the Servicer. The Servicer shall
be responsible for obtaining from each Subcontractor and delivering to the
Purchaser any assessment of compliance and attestation required to be
delivered by such Subcontractor under Subsection 11.20, in each case as and
when required to be delivered.
Section 12. The Servicer.
Subsection 12.01 Indemnification; Third Party Claims; Remedies.
(a) The Servicer agrees to indemnify and hold the Purchaser and any successor
servicer and their respective present and former directors, officers,
employees and agents harmless from any and all claims, losses, damages,
penalties, fines, forfeitures, legal fees and expenses (including, without
limitation, any legal fees and expenses, judgments or expenses relating to
such liability, claim, loss or damage) and related costs, judgments, and any
other costs, fees and expenses that such parties may sustain in any way
related to the Servicer's failure:
(i) to observe and perform any or all of Servicer's duties,
obligations, covenants, agreements, warranties or representations
contained in this Agreement or in the applicable Purchase Price and
Terms Letter; or
(ii) to comply with all applicable requirements contained in this
Agreement or the applicable Purchase Price and Terms Letter with respect
to the servicing of the Mortgage Loan and the transfer of servicing
rights.
(b) The Servicer shall indemnify the Purchaser, each affiliate of
the Purchaser, 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 (within the meaning of Section 15
of the Securities Act and Section 20 of the Exchange Act); and the respective
present and former directors, officers, employees and agents of each of the
foregoing (each, an "Indemnified Party"), and shall hold each of them harmless
from and against any losses, damages, penalties, fines, forfeitures, legal
fees and expenses and related
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costs, judgments, and any other costs, fees and expenses that any of them may
sustain arising out of or based upon:
(i) (A) any untrue statement of a material fact contained or
alleged to be contained in any written information, written report,
certification, accountants' letter or other material provided under
Section 11 by or on behalf of the Servicer, or provided under Section 11
by or on behalf of any Subservicer, Subcontractor or Third-Party
Originator (collectively, the "Servicer Information"), or (B) the
omission or alleged omission to state in the Servicer Information a
material fact required to be stated in the Servicer Information or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, by
way of clarification, that clause (B) of this paragraph shall be
construed solely by reference to the Servicer Information and not to any
other information communicated in connection with a sale or purchase of
securities, without regard to whether the Servicer Information or any
portion thereof is presented together with or separately from such other
information;
(ii) any breach of the Servicer's obligations under, or any
failure by the Servicer, 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 Subsections 11.19, 11.20 and 11.21, including any failure
by the Servicer to identify pursuant to Subsection 11.24(b) any
Subcontractor "participating in the servicing function" within the
meaning of Item 1122 of Regulation AB;
(iii) any breach by the Servicer of a representation or warranty
set forth in Subsection 11.19(g) or in a writing furnished pursuant to
Subsection 11.19(h) 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 Servicer of a
representation or warranty in a writing furnished pursuant to Subsection
11.19(h) to the extent made as of a date subsequent to such closing
date; or
(iv) the negligence, bad faith or willful misconduct of the
Servicer in connection with its performance under Subsections 11.19,
11.20, 11.21 or 12.01.
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.
In the case of any failure of performance described in clause
(b)(ii) of this Section, the Servicer shall promptly reimburse the Purchaser,
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
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information, report, certification, accountants' letter or other material not
delivered as required by the Servicer, 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.
(c) (i) Any failure by the Servicer, 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 Section 11, or any breach by the Servicer of a representation
or warranty set forth in Subsection 11.19(g) or in a writing furnished
pursuant to Subsection 11.19(h) 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 Servicer of a
representation or warranty in a writing furnished pursuant to Subsection
11.19(h) 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 Servicer under this Agreement and any applicable
Reconstitution Agreement, and shall entitle the Purchaser, in its sole
discretion to terminate the rights and obligations of the Servicer 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 Servicer
(and if the Servicer is servicing any of the Mortgage Loans in a
Securitization Transaction, appoint a successor servicer reasonably acceptable
to the master servicer for such Securitization Transaction); provided that to
the extent that any provision of this Agreement and/or any applicable
Reconstitution Agreement expressly provides for the survival of certain rights
or obligations following termination of the Servicer as servicer, such
provision shall be given effect.
(ii) Any failure by the Servicer, any Subservicer or any
Subcontractor to deliver any information, report, certification or
accountants' letter when and as required under Subsection 11.20,
including any failure by the Servicer to identify pursuant to Subsection
11.24(b) any Subcontractor "participating in the servicing function"
within the meaning of Item 1122 of Regulation AB, which continues
unremedied for ten calendar days after the date on which such
information, report, certification or accountants' letter was required
to be delivered shall constitute an Event of Default with respect to the
Servicer under this Agreement and any applicable Reconstitution
Agreement, and shall entitle the Purchaser, in its sole discretion to
terminate the rights and obligations of the Servicer 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 Servicer; 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 Servicer as servicer, such
provision shall be given effect.
(iii) The Servicer shall promptly reimburse the Purchaser (or any
designee of the Purchaser, such as a master servicer), for all
reasonable expenses incurred by the Purchaser (or such designee), as
such are incurred, in connection with the termination of the Servicer as
servicer and the transfer of servicing of the Mortgage Loans to a
successor
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servicer. The provisions of this paragraph shall not limit whatever
rights the Purchaser 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.
The Servicer immediately shall notify the Purchaser if a claim is
made by a third party with respect to this Agreement.
For purposes of this Section, "Purchaser" shall mean the Person
then acting as the Purchaser under this Agreement and any and all Persons who
previously were "Purchasers" under this Agreement.
Promptly after receipt by an indemnified party under this
Subsection 12.01 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Subsection 12.01, notify the indemnifying party
in writing of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve the indemnifying party from any liability
which it may have to any indemnified party under this Subsection 12.01, except
to the extent that it has been prejudiced in any material respect, or from any
liability which it may have, otherwise than under this Subsection 12.01. In
case any such action is brought against any 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 elect
by written notice delivered to the indemnified party promptly after receiving
the aforesaid notice from such indemnified party, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party;
provided that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party or
parties shall have reasonably concluded that there may be legal defenses
available to it or them and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate counsel
to assert such legal defenses and to otherwise participate in the defense of
such action on behalf of such indemnified party or parties. Upon receipt of
notice from the indemnifying party to such indemnified party of its election
so to assume the defense of such action and approval by the indemnified party
of counsel, the indemnifying party will not be liable to such indemnified
party for expenses incurred by the indemnified party in connection with the
defense thereof unless (i) the indemnified party shall have employed separate
counsel in connection with the assertion of legal defenses in accordance with
the proviso to the next preceding sentence (it being understood, however, that
the indemnifying party shall not be liable for the expenses of more than one
separate counsel (together with one local counsel, if applicable)), (ii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the indemnifying
party has authorized in writing the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii).
Subsection 12.02 Merger or Consolidation of the Servicer. The
Seller will keep in full effect its existence, rights and franchises under the
laws of its jurisdiction of incorporation or organization, and will obtain and
preserve its qualification to do business in
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each other jurisdiction in which such qualification is or shall be necessary
to protect the validity and enforceability of this Agreement, or any of the
Mortgage Loans and to perform its duties under this Agreement.
Any Person into which the Seller may be merged or consolidated, or
any corporation resulting from any merger, conversion or consolidation to
which the Seller shall be a party, or any Person succeeding to the business of
the Seller, shall be the successor of the Seller hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding; provided,
however, that the successor or surviving Person shall be an institution whose
deposits are insured by FDIC or a company whose business is the origination
and servicing of mortgage loans, unless otherwise consented to by the
Purchaser, which consent shall not be unreasonably withheld, shall be
qualified to service mortgage loans on behalf of FNMA or FHLMC.
Subsection 12.03 Limitation on Liability of the Servicer and
Others. The duties and obligations of the Servicer shall be determined solely
by the express provisions of this Agreement, the Servicer shall not be liable
except for the performance of such duties and obligations as are specifically
set forth in this Agreement and no implied covenants or obligations shall be
read into this Agreement against the Servicer. Neither the Servicer nor any of
the directors, officers, employees or agents of the Servicer shall be under
any liability to the Purchaser for any action taken or for refraining from the
taking of any action in accordance with Accepted Servicing Procedures and
otherwise in good faith pursuant to this Agreement or for errors in judgment;
provided, however, that this provision shall not protect the Servicer against
any liability resulting from any breach of any representation or warranty made
herein, or from any liability specifically imposed on the Servicer herein;
and, provided, further, that this provision shall not protect the Servicer
against any liability that would otherwise be imposed by reason of the willful
misfeasance, bad faith or negligence in the performance of duties or by reason
of reckless disregard of the obligations or duties hereunder. The Servicer and
any director, officer, employee or agent of the Servicer may rely on any
document of any kind which it in good faith reasonably believes to be genuine
and to have been adopted or signed by the proper authorities respecting any
matters arising hereunder. Subject to the terms of Subsection 12.01, the
Servicer shall have no obligation to appear with respect to, prosecute or
defend any legal action which is not incidental to the Servicer's duty to
service the Mortgage Loans in accordance with this Agreement.
Subsection 12.04 Seller and Servicer Not to Resign. With respect
to the retention of the Seller to service the Mortgage Loans hereunder, the
Seller acknowledges that the Purchaser has acted in reliance upon the Seller's
independent status, the adequacy of its servicing facilities, plan, personnel,
records and procedures, its integrity, reputation and financial standing and
the continuance thereof. Without in any way limiting the generality of this
Section, neither Seller nor Servicer shall assign this Agreement or the
servicing hereunder or delegate its rights or duties hereunder or any portion
thereof, or sell or otherwise dispose of all or substantially all of its
property or assets, without the prior written approval of the Purchaser, which
consent shall be granted or withheld in the Purchaser's sole discretion or
upon the determination that the Servicer's duties hereunder are no longer
permissible under applicable law and such incapacity cannot be cured by the
Servicer. Any such determination permitting the unilateral resignation of the
Servicer shall be evidenced by an Opinion of Counsel to such effect delivered
to the
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Purchaser, which Opinion of Counsel shall be in form and substance acceptable
to the Purchaser. No such resignation or assignment shall become effective
until a successor has assumed the Servicer's responsibilities and obligations
hereunder in accordance with Subsection 14.02.
Section 13. Default.
Subsection 13.01 Events of Default. In case one or more of the
following Events of Default by the Servicer shall occur and be continuing:
(a) any failure by the Servicer to remit to the Purchaser any
payment required to be made under the terms of this Agreement which continues
unremedied for a period of 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 Servicer by the Purchaser;
(b) except as otherwise set forth in paragraph (f) below, failure
by the Servicer to duly observe or perform, in any material respect, any other
covenants, obligations or agreements of the Servicer as set forth in this
Agreement which failure continues unremedied for a period of sixty (60) days
after the date on which written notice of such failure, requiring the same to
be remedied, shall have been given to the Servicer by the Purchaser;
(c) a decree or order of a court or agency or supervisory
authority having jurisdiction for the appointment of a conservator or receiver
or liquidator in any insolvency, bankruptcy, readjustment of debt, marshalling
of assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Servicer and
such decree or order shall have remained in force, undischarged or unstayed
for a period of sixty (60) days;
(d) the Servicer shall consent to the appointment of a conservator
or receiver or liquidator in any insolvency, bankruptcy, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or relating to
the Servicer or relating to all or substantially all of the Servicer's
property;
(e) the Servicer shall admit in writing its inability to pay its
debts 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
(f) failure by the Servicer to duly perform, within the required
time period, its obligations under Subsections 11.20 or 11.21 which failure
continues unremedied for a period of five (5) days (or, in the case of the
officer's certificate or the annual assessment of servicing compliance or the
annual independent public accountants' servicing report required under
Subsection 11.20, or the certification required under clause (v) of Subsection
11.20, ten (10) days) after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Servicer 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;
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then, and in each and every such case, so long as an Event of Default shall
not have been remedied, the Purchaser, by notice in writing to the Servicer,
may, in addition to whatever rights the Purchaser may have at law or equity to
damages, including injunctive relief and specific performance, commence
termination of all the rights and obligations of the Servicer under this
Agreement and in and to the Mortgage Loans and the proceeds thereof. Upon
receipt by the Servicer of such written notice from the Purchaser stating that
it intends to terminate the Servicer as a result of such Event of Default, all
authority and power of the Servicer under this Agreement, whether with respect
to the Mortgage Loans or otherwise, shall pass to and be vested in the
successor appointed pursuant to Subsection 14.02. Upon written request from
the Purchaser, the Servicer shall, in accordance with Subsection 11.23
prepare, execute and deliver to a successor any and all documents and other
instruments, place in such successor's possession all Mortgage Files and do or
cause to be done all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, including, but not limited to, the
transfer and endorsement or assignment of the Mortgage Loans and related
documents to the successor at the Servicer's sole expense. The Servicer agrees
to cooperate with the Purchaser and such successor in effecting the
termination of the Servicer's responsibilities and rights hereunder,
including, without limitation, the transfer to such successor for
administration by it of all amounts which shall at the time be credited by the
Servicer to the Custodial Account or Escrow Account or thereafter received
with respect to the Mortgage Loans.
Subsection 13.02 Waiver of Defaults. The Purchaser may waive any
default by the Servicer in the performance of its obligations hereunder and
its consequences. Upon any 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 thereto
except to the extent expressly so waived.
Section 14. Termination.
Subsection 14.01 Termination. The respective obligations and
responsibilities of the Servicer, as servicer, shall terminate upon (a) the
distribution to the Purchaser of the final payment or liquidation with respect
to the last Mortgage Loan (or advances of same by the Servicer); (b) 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, (c) by mutual consent of the Servicer and the Purchaser
in writing or (d) pursuant to Subsection 14.02 by providing written notice to
the Servicer at least 30 days prior to the related Transfer Date. Upon written
request from the Purchaser in connection with any such termination, the
Servicer 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, or
otherwise, at the Purchaser's sole expense. The Servicer agrees to cooperate
with the Purchaser and such successor in effecting the termination of the
Servicer's responsibilities and rights hereunder 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
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the Servicer to the Custodial Account or Escrow Account or thereafter received
with respect to the Mortgage Loans.
Subsection 14.02 Termination of the Servicer Without Cause.
(a) Notwithstanding anything herein to the contrary, the Purchaser
may terminate the obligations and responsibilities of the Servicer in its
capacity as Servicer, without cause, upon payment to the Servicer of a
termination fee equal to one and one half percent (1.5%) of the aggregate
outstanding principal balance of the Mortgage Loans as of the date of such
termination. The termination fee provided for in this Subsection 14.02 shall
be paid by the Purchaser within ten (10) Business Days of any such termination
without cause by the Purchaser.
(b) In the event that a Mortgage Loan (i) becomes delinquent for a
period of ninety (90) days or more (a "Delinquent Mortgage Loan") or (ii)
becomes an REO Property, the Purchaser may, at its option, terminate this
Agreement with respect to such Delinquent Mortgage Loan or REO Property
without payment of a termination fee therefor upon twenty (20) days' written
notice to the Servicer; provided that upon termination of this Agreement with
respect to such Delinquent Loan or REO Property the Purchaser shall reimburse
the Servicer for all outstanding Servicing Advances or Servicing Fees related
to such Delinquent Mortgage Loan.
Subsection 14.03 Successors to the Servicer. Prior to the
termination of the Servicer's responsibilities and duties under this Agreement
pursuant to Subsections 12.04, 13.01 or 14.01, the Purchaser shall, (a)
succeed to and assume all of the Servicer's responsibilities, rights, duties
and obligations under this Agreement or (b) appoint a successor which shall
succeed to all rights and assume all of the responsibilities, duties and
liabilities of the Servicer under this Agreement upon such termination. 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. If the Servicer's duties,
responsibilities and liabilities under this Agreement shall be terminated
pursuant to the aforementioned Subsections, the Servicer shall discharge such
duties and responsibilities during the period from the date it acquires
knowledge of such termination until the effective date thereof with the same
degree of diligence and prudence which it is obligated to exercise under this
Agreement, and shall take no action whatsoever that might impair or prejudice
the rights or financial condition of its successor. The resignation or removal
of the Servicer pursuant to the aforementioned Subsections shall not become
effective until a successor shall be appointed pursuant to this Subsection
14.03 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, it being understood and
agreed that the provisions of such Subsections 7.01 and 7.02 shall be
applicable to the Seller notwithstanding any such resignation or termination
of the Servicer, or the termination of this Agreement.
Any successor appointed as provided herein shall execute,
acknowledge and deliver to the Servicer and to the Purchaser an instrument
accepting such appointment, whereupon such successor shall become fully vested
with all the rights, powers, duties, responsibilities, obligations and
liabilities of the Servicer, with like effect as if originally named as a
party to this Agreement. Any termination or resignation of the Servicer or
this Agreement
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pursuant to Subsections 12.04, 13.01, 14.01 or 14.02 shall not affect any
claims that the Purchaser may have against the Servicer arising prior to any
such termination or resignation.
Upon a successor's acceptance of appointment as such, the Servicer
shall notify by mail the Purchaser of such appointment.
Section 15. Cooperation of Seller with a Reconstitution. The
Seller and the Purchaser agree that with respect to some or all of the
Mortgage Loans, after the related Closing Date, on one or more dates (each, a
"Reconstitution Date") at the Purchaser's sole option, the Purchaser may
effect a sale (each, a "Reconstitution") of some or all of the Mortgage Loans
then subject to this Agreement, without recourse, to:
(a) Xxxxxx Xxx under its Cash Purchase Program or MBS Program
(Special Servicing Option) (each, a "Xxxxxx Mae Transfer"); or
(b) Xxxxxxx Mac (the "Xxxxxxx Mac Transfer"); or
(c) one or more third party purchasers in one or more Whole Loan
Transfers; or
(d) one or more trusts or other entities to be formed as part of
one or more Securitization Transactions.
The Seller agrees to execute in connection with any Agency
Transfer, any and all reasonably acceptable pool purchase contracts, and/or
agreements among the Purchaser, the Seller, Xxxxxx Xxx or Xxxxxxx Mac (as the
case may be) and any servicer in connection with a Whole Loan Transfer, a
seller's warranties and servicing agreement or a participation and servicing
agreement in form and substance reasonably acceptable to the parties, and in
connection with a Securitization Transaction, a pooling and servicing
agreement in form and substance reasonably acceptable to the parties or an
Assignment and Recognition Agreement substantially in the form attached hereto
as Exhibit 15 (collectively, the agreements referred to herein are designated,
the "Reconstitution Agreements"), together with an opinion of counsel with
respect to such Reconstitution Agreements.
With respect to each Whole Loan Transfer and each Securitization
Transaction entered into by the Purchaser, the Seller agrees in its capacity
as Seller or Servicer as applicable (1) to cooperate fully with the Purchaser
and any prospective purchaser with respect to all reasonable requests and due
diligence procedures; (2) to execute, deliver and perform all Reconstitution
Agreements reasonably required by the Purchaser; (3) to restate the
representations and warranties set forth in Section 7.02 as of the
Reconstitution Date; (4) to restate the representations and warranties set
forth in Section 7.01 as of the Reconstitution Date, modified to the extent
necessary to accurately reflect the pool statistics of the Mortgage Loans as
of the Reconstitution Date and any event or circumstances existing subsequent
to the related Closing Date and (5) make the representations and warranties
set forth in the related selling/servicing guide of the servicer, or such
representations or warranties as may be required by any rating agency or
prospective purchaser of the related securities or such Mortgage Loans, in
connection with such Reconstitution, in each case, as of the applicable
Reconstitution Date modified to the extent necessary to accurately reflect the
pool statistics of the Mortgage Loans as of the Reconstitution Date
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and any event or circumstances existing subsequent to the related Closing
Date.
The Seller shall provide to such servicer or issuer, as the case
may be, and any other participants or purchasers in such Reconstitution: (i)
any and all information and appropriate verification of information which may
be reasonably available to the Seller or its affiliates, whether through
letters of its auditors and counsel or otherwise, as the Purchaser or any such
other participant shall reasonably request; and (ii) such reasonable and
additional representations, warranties, covenants, opinions of counsel,
letters from auditors, and certificates of public officials or officers of the
Seller or the Servicer as are reasonably believed necessary by the Purchaser
or any such other participant. Seller shall also execute, deliver and satisfy
all conditions set forth in any indemnity agreement required by the Purchaser
or any such participant, including, without limitation, an Indemnification and
Contribution Agreement in substantially the form attached hereto as Exhibit 3.
Moreover, the Seller agrees to cooperate with all reasonable requests made by
the Purchaser to effect such Reconstitution Agreements. The Seller shall
indemnify the Purchaser, each affiliate of the Purchaser participating in the
Reconstitution and each Person who controls the Purchaser or such affiliate
and their respective present and former directors, officers, employees and
agents, and hold each of them harmless from and against any losses, damages,
penalties, fines, forfeitures, legal fees and expenses and related costs,
judgments, and any other costs, fees and expenses that each of them may
sustain arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in the information provided by the
Seller regarding the Seller or the Servicer, the Underwriting Guidelines, the
Seller's or the Servicer's servicing practices or the performance of the
Mortgage Loans set forth in any offering document prepared in connection with
any Reconstitution, the Seller's (or with respect to any Mortgage Loan not
originated by the Seller, the originator of such Mortgage Loan's) Static Pool
Information. For purposes of the previous sentence, "Purchaser" shall mean the
Person then acting as the Purchaser under this Agreement and any and all
Persons who previously were "Purchasers" under this Agreement.
All Mortgage Loans not sold or transferred pursuant to a
Reconstitution shall remain subject to this Agreement and shall continue to be
serviced in accordance with the terms of this Agreement, and with respect
thereto this Agreement shall remain in full force and effect.
Section 16. Notices. All demands, notices and communications
hereunder shall be in writing and shall be given via email, facsimile
transmission or registered or certified mail to the person at the address set
forth below:
(a) if to the Purchaser:
Xxxxxx Xxxxxxx Mortgage Capital Inc.
1221 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxxx - Whole Loan Operations Manager
Fax: 000-000-0000
Email: xxxxx.xxxxxxxxxx@xxxxxxxxxxxxx.xxx
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with copies to:
Xxxx Xxxxxxxx
Xxxxxx Xxxxxxx - Servicing Oversight
0000 X-Xxx Xxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Fax: 000-000-0000
Email: xxxx.xxxxxxxx@xxxxxxxxxxxxx.xxx
Xxxxx Xxxxxx
Xxxxxx Xxxxxxx - RFPG
1585 Broadway, 00xx Xxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: 000-000-0000
Email: xxxxx.xxxxxx@xxxxxxxxxxxxx.xxx
(b) if to the Servicer:
GreenPoint Mortgage Funding, Inc.,
000 Xxxxxxxxxx Xxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx Xxxxx, Investor Reporting Manager
Fax: 000-000-0000
Email: xxxxx.xxxxx@xxxxxxxxxx.xxx
(c) if to the Seller:
GreenPoint Mortgage Funding, Inc.,
000 Xxxx Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxx - Secondary Marketing Division
Fax: 000-000-0000
Email: xxxxx.xxxxx@xxxxxxxxxx.xxx
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 17. Severability Clause. 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
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invalidate or render unenforceable such provision in any other jurisdiction.
To the extent permitted by applicable law, the parties hereto waive any
provision of law which prohibits or renders void or unenforceable any
provision hereof. If the invalidity of any part, provision, representation or
warranty of this Agreement shall deprive any party of the economic benefit
intended to be conferred by this Agreement, the parties shall negotiate, in
good-faith, to develop a structure the economic effect of which is nearly as
possible the same as the economic effect of this Agreement without regard to
such invalidity.
Section 18. No Partnership. Nothing herein contained shall be
deemed or construed to create a co-partnership or joint venture between the
parties hereto and the services of the Servicer shall be rendered as an
independent contractor and not as agent for the Purchaser.
Section 19. 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 20. Governing Law Jurisdiction; Consent to Service of
Process. THIS AGREEMENT SHALL BE DEEMED IN EFFECT WHEN A FULLY EXECUTED
COUNTERPART THEREOF IS RECEIVED BY THE PURCHASER IN THE STATE OF NEW YORK AND
SHALL BE DEEMED TO HAVE BEEN MADE IN THE STATE OF NEW YORK. THIS AGREEMENT
SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO ITS CHOICE OF LAW RULES AND PRINCIPLES. EACH OF THE PURCHASER
AND THE SELLER IRREVOCABLY (I) SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK AND THE FEDERAL COURTS OF THE UNITED STATES OF
AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT; (II) WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM IN ANY ACTION OR
PROCEEDING IN ANY SUCH COURT; (III) AGREES THAT A FINAL JUDGMENT IN ANY ACTION
OR PROCEEDING IN ANY SUCH COURT SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN ANY
OTHER JURISDICTION BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY
LAW; AND (IV) CONSENTS TO SERVICE OF PROCESS UPON IT BY MAILING A COPY THEREOF
BY CERTIFIED MAIL ADDRESSED TO IT AS PROVIDED FOR NOTICES HEREUNDER.
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Section 21. Mandatory Delivery; Grant of Security Interest. The
sale and delivery on the related Closing Date of the Mortgage Loans described
on the related Mortgage Loan Schedule is mandatory from and after the date of
the execution of the related Purchase Price and Terms Letter, it being
specifically understood and agreed that each Mortgage Loan is unique and
identifiable on the date hereof and that an award of money damages would be
insufficient to compensate the Purchaser for the losses and damages incurred
by the Purchaser (including damages to prospective purchasers of the Mortgage
Loans) in the event of the Seller's failure to deliver (i) each of the related
Mortgage Loans or (ii) one or more Qualified Substitute Mortgage Loans or
(iii) one or more Mortgage Loans otherwise acceptable to the Purchaser on or
before the related Closing Date. The Seller hereby grants to the Purchaser a
lien on and a continuing security interest in each Mortgage Loan and each
document and instrument evidencing each such Mortgage Loan to secure the
performance by the Seller of its obligations under the related Purchase Price
and Terms Letter, and the Seller agrees that it shall hold such Mortgage Loans
in custody for the Purchaser subject to the Purchaser's (i) right to reject
any Mortgage Loan (or Qualified Substitute Mortgage Loan) under the terms of
this Agreement and to require another Mortgage Loan (or Qualified Substitute
Mortgage Loan) to be substituted therefor, and (ii) obligation to pay the
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 22. Intention of the Parties. It is the intention of the
parties that the Purchaser is purchasing, and the Seller is selling the
Mortgage Loans and not a debt instrument of the Seller or another security.
Accordingly, the parties hereto each intend to treat the transaction for
federal income tax purposes as a sale by the Seller, and a purchase by the
Purchaser, of the Mortgage Loans. Moreover, the arrangement under which the
Mortgage Loans are held shall be consistent with classification of such
arrangement as a grantor trust in the event it is not found to represent
direct ownership of the Mortgage Loans. The Purchaser shall have the right to
review the Mortgage Loans and the related Mortgage Loan Files to determine the
characteristics of the Mortgage Loans which shall affect the federal income
tax consequences of owning the Mortgage Loans and the Seller shall cooperate
with all reasonable requests made by the Purchaser in the course of such
review.
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Section 23. 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 permitted successors and assigns of the Seller and the
successors and assigns of the Purchaser. This Agreement shall not be assigned,
pledged or hypothecated by the Seller to a third party without the prior
written consent of the Purchaser, which consent may be withheld by the
Purchaser in its sole discretion. This Agreement may be assigned, pledged or
hypothecated by the Purchaser in whole or in part, and with respect to one or
more of the Mortgage Loans, without the consent of the Seller. There shall be
no limitation on the number of assignments or transfers allowable by the
Purchaser with respect to the Mortgage Loans and this Agreement. In the event
the Purchaser assigns this Agreement, and the assignee assumes any of the
Purchaser's obligations hereunder, the Seller acknowledges and agrees to look
solely to such assignee, and not to the Purchaser, for performance of the
obligations so assumed and the Purchaser shall be relieved from any liability
to the Seller with respect thereto.
Section 24. Waivers. No term or provision of this Agreement may be
waived or modified unless such waiver or modification is in writing and signed
by the party against whom such waiver or modification is sought to be
enforced.
Section 25. Exhibits. The exhibits to this Agreement are hereby
incorporated and made a part hereof and are an integral part of this
Agreement.
Section 26. 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 terms "include" and "including" shall mean without
limitation by reason of enumeration.
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Section 27. Reproduction of Documents. This Agreement and all
documents relating thereto, including, without limitation, (a) consents,
waivers and modifications which may hereafter be executed, (b) documents
received by any party at the closing, and (c) financial statements,
certificates and other information previously or hereafter furnished, may be
reproduced by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties hereto 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 hereto in
the regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
Section 28. Amendment. This Agreement may be amended from time to
time by the Purchaser, the Seller and the Servicer by written agreement signed
by the parties hereto.
Section 29. Confidentiality. Each of the Purchaser, the Seller and
the Servicer shall employ proper procedures and standards designed to maintain
the confidential nature of the terms of this Agreement, except to the extent:
(a) the disclosure of which is reasonably believed by such party to be
required in connection with regulatory requirements or other legal
requirements relating to its affairs; (b) disclosed to any one or more of such
party's employees, officers, directors, agents, attorneys or accountants who
would have access to the contents of this Agreement and such data and
information in the normal course of the performance of such Person's duties
for such party, to the extent such party has procedures in effect to inform
such Person of the confidential nature thereof; (c) that is disclosed in a
prospectus, prospectus supplement or private placement memorandum relating to
a securitization of the Mortgage Loans by the Purchaser (or an affiliate
assignee thereof) or to any Person in connection with the resale or proposed
resale of all or a portion of the Mortgage Loans by such party in accordance
with the terms of this Agreement; and (d) that is reasonably believed by such
party to be necessary for the enforcement of such party's rights under this
Agreement.
Notwithstanding any other express or implied agreement to the
contrary, each of the Purchaser, the Seller and the Servicer agree and
acknowledge that each of them and each of their employees, representatives,
and other agents may disclose to any and all persons, without limitation of
any kind, the tax treatment and tax structure of the transaction and all
materials of any kind (including opinions or other tax analyses) that are
provided to any of them relating to such tax treatment and tax structure,
except to the extent that confidentiality is reasonably necessary to comply
with U.S. federal or state securities laws. For purposes of this paragraph,
the terms "tax treatment" and "tax structure" have the meanings specified in
Treasury Regulation section 1.6011-4(c).
Section 30. Entire Agreement. This Agreement constitutes the
entire agreement and understanding relating to the subject matter hereof
between the parties hereto and any prior oral or written agreements between
them shall be deemed to have merged herewith.
Section 31. Further Agreements. The Seller, the Servicer and the
Purchaser each agree to execute and deliver to the other such reasonable and
appropriate additional documents, instruments or agreements as may be
necessary or appropriate to effectuate the purposes of this Agreement.
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Section 32. No Solicitation. From and after the related Closing
Date, the Seller agrees that it will not take any action or permit or cause
any action to be taken by any of its agents or affiliates, or by any
independent contractors on the Seller's behalf, to personally, by telephone or
mail, solicit a Mortgagor under any Mortgage Loan for the purpose of
refinancing a Mortgage Loan, in whole or in part, without the prior written
consent of the Purchaser. Notwithstanding the foregoing, it is understood and
agreed that the Seller, the Servicer or any of their respective affiliates:
(a) may advertise its availability for handling refinancings of
mortgages in its portfolio, including the promotion of terms it has available
for such refinancings, through the sending of letters or promotional material,
so long as it does not specifically target Mortgagors and so long as such
promotional material either is sent to the mortgagors for all of the mortgages
in the servicing portfolio of the Seller, the Servicer and any of their
affiliates (those it owns as well as those serviced for others);
(b) may provide pay-off information and otherwise cooperate with
individual mortgagors who contact it about prepaying their mortgages by
advising them of refinancing terms and streamlined origination arrangements
that are available; and
(c) may offer to refinance a Mortgage Loan made within thirty (30)
days following receipt by it of a pay-off request from the related Mortgagor.
Promotions undertaken by the Seller or the Servicer or by any
affiliate of the Seller or the Servicer which are directed to the general
public at large (including, without limitation, mass mailing based on
commercially acquired mailing lists, newspaper, radio and television
advertisements), shall not constitute solicitation under this Section 32.
Section 33. Waiver of Jury Trial. THE SELLER AND THE PURCHASER
EACH KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY
DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
Section 34. Third Party Beneficiary. For purposes of this
Agreement, including but not limited to Subsections 11.20 and 11.21, any
master servicer shall be considered a third party beneficiary to this
Agreement entitled to all the rights and benefits accruing to any master
servicer herein as if it were a direct party to this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Purchaser, the Seller and the Servicer
have caused their names to be signed hereto by their respective officers
thereunto duly authorized on the date first above written.
XXXXXX XXXXXXX MORTGAGE CAPITAL INC.
By: ____________________________________
Name:
Title:
GREENPOINT MORTGAGE FUNDING, INC.
By: ____________________________________
Name:
Title:
EXHIBIT 1
MORTGAGE LOAN DOCUMENTS
With respect to each Mortgage Loan, the Mortgage Loan Documents
shall consist of the following:
(a) the original Mortgage Note bearing all intervening
endorsements, endorsed "Pay to the order of _________, without recourse"
and signed in the name of the last endorsee (the "Last Endorsee") by an
authorized officer. To the extent that there is no room on the face of
the Mortgage Notes for endorsements, the endorsement may be contained on
an allonge, if state law so allows and the Custodian is so advised by
the Seller that state law so allows. If the Mortgage Loan was acquired
by the Seller in a merger, the endorsement must be by "[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 must be by "[Last Endorsee], formerly
known as [previous name]";
(b) the original of any guarantee executed in connection with the
Mortgage Note;
(c) with respect to Mortgage Loans that are not Co-op Loans, the
original Mortgage with evidence of recording thereon. With respect to
any Co-op Loan, an original or copy of the Security Agreement. If in
connection with any Mortgage Loan, the Seller cannot deliver or cause to
be delivered the original Mortgage with evidence of recording thereon on
or prior to the Closing Date because of a delay caused by the public
recording office where such Mortgage has been delivered for recordation
or because such Mortgage has been lost or because such public recording
office retains the original recorded Mortgage, the Seller shall deliver
or cause to be delivered to the Custodian, a photocopy of such Mortgage,
together with (i) in the case of a delay caused by the public recording
office, an Officer's Certificate of the Seller (or certified by the
title company, escrow agent, or closing attorney) stating that such
Mortgage has been dispatched to the appropriate public recording office
for recordation and that the original recorded Mortgage or a copy of
such Mortgage certified by such public recording office to be a true and
complete copy of the original recorded Mortgage will be promptly
delivered to the Custodian upon receipt thereof by the Seller; or (ii)
in the case of a Mortgage 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;
(d) the originals of all assumption, modification, consolidation
or extension agreements, if any, with evidence of recording thereon;
(e) with respect to Mortgage Loans that are not Co-op Loans, the
original Assignment of Mortgage for each Mortgage Loan, in form and
substance acceptable for
Exh. 1-1
recording (except with respect to MERS Designated Loans). The Assignment
of Mortgage must be duly recorded only if recordation is either
necessary under applicable law or commonly required by private
institutional mortgage investors in the area where the Mortgaged
Property is located or on direction of the Purchaser as provided in this
Agreement. If the Assignment of Mortgage is to be recorded, the Mortgage
shall be assigned to the Purchaser. If the Assignment of Mortgage is not
to be recorded, the Assignment of Mortgage shall be delivered in blank.
If the Mortgage Loan was acquired by the Seller in a merger, the
Assignment of Mortgage must be made by "[Seller], successor by merger to
[name of predecessor]". If the Mortgage Loan was acquired or originated
by the Seller while doing business under another name, the Assignment of
Mortgage must be by "[Seller], formerly known as [previous name]";
(f) with respect to Mortgage Loans that are not Co-op Loans, the
originals of all intervening Assignments of Mortgage (if any) evidencing
a complete chain of assignment from the Seller to the Last Endorsee (or,
in the case of a MERS Designated Loan, MERS) with evidence of recording
thereon, or if any such intervening assignment has not been returned
from the applicable recording office or has been lost or if such public
recording office retains the original recorded Assignments of Mortgage,
the Seller shall deliver or cause to be delivered to the Custodian, a
photocopy of such intervening assignment, together with (i) in the case
of a delay caused by the public recording office, an Officers
Certificate of the Seller (or certified by the title company, escrow
agent, or closing attorney) stating that such intervening assignment of
mortgage has been dispatched 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 Seller; or (ii) in the case of an intervening assignment
where a public recording office retains the original recorded
intervening assignment or in the case where an intervening assignment is
lost after recordation in a public recording office, a copy of such
intervening assignment certified by such public recording office to be a
true and complete copy of the original recorded intervening assignment;
(g) with respect to Mortgage Loans that are not Co-op Loans, the
original mortgagee policy of title insurance or, in the event such
original title policy is unavailable, a certified true copy of the
related policy binder or commitment for title certified to be true and
complete by the title insurance company, in either case to be delivered
within 180 days following the related Closing Date;
(h) the original or, if unavailable, a copy of any security
agreement, chattel mortgage or equivalent document executed in
connection with the Mortgage;
(i) with respect to any Co-op Loan: (i) a copy of the Co-op Lease
and the assignment of such Co-op Lease, with all intervening assignments
showing a complete chain of title and an assignment thereof by Seller;
(ii) the stock certificate together with an undated stock power relating
to such stock certificate executed in blank; (iii) the recognition
agreement of the interests of the Mortgagee with respect to the Co-op
Loan
Exh. 1-2
by the residential cooperative housing corporation, the stock of which
was pledged by the related Mortgagor to the originator of such Co-op
Loan; and (iv) copies of the financial statement filed by the originator
as secured party and, if applicable, a filed UCC-3 assignment of the
subject security interest showing a complete chain of title, together
with an executed UCC-3 assignment of such security interest by the
Seller in a form sufficient for filing; and
(j) if any of the above documents has been executed by a person
holding a power of attorney, an original or photocopy of such power
certified by the Seller to be a true and correct copy of the original.
Exh. 1-3
EXHIBIT 2
CONTENTS OF EACH MORTGAGE FILE
With respect to each Mortgage Loan, the Mortgage File shall
include each of the following items, unless otherwise disclosed to the
Purchaser on the data tape, which shall be available for inspection by the
Purchaser and which shall be retained by the Servicer or delivered to the
Purchaser:
(a) Copies of the Mortgage Loan Documents.
(b) Residential loan application.
(c) Mortgage Loan closing statement.
(d) Verification of employment and income, if required.
(e) Verification of acceptable evidence of source and amount of
down payment.
(f) Credit report on Mortgagor, in a form acceptable to either
Xxxxxx Xxx or Xxxxxxx Mac.
(g) Residential appraisal report.
(h) Photograph of the Mortgaged Property and photographs of
comparable properties.
(i) Survey of the Mortgaged Property, unless a survey is not
required by the title insurer.
(j) 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, home owner
association declarations, etc.
(k) Copies of all required disclosure statements.
(l) If applicable, termite report, structural engineer's report,
water potability and septic certification.
(m) Sales Contract, if applicable.
(n) Copy of the owner's title insurance policy or attorney's
opinion of title and abstract of title, as applicable.
(o) Evidence of electronic notation of the hazard insurance
policy, and, if required by law, evidence of the flood insurance policy.
Exh. 2-1
EXHIBIT 3
FORM OF INDEMNIFICATION AND CONTRIBUTION AGREEMENT
This INDEMNIFICATION AND CONTRIBUTION AGREEMENT ("Agreement"),
dated as of [_______], 200_, among [________________] (the "Depositor"), a
[______________] corporation (the "Depositor"), Xxxxxx Xxxxxxx Mortgage
Capital Inc., a New York corporation ("Xxxxxx") and GreenPoint Mortgage
Funding, Inc., a New York corporation (the "Seller").
W I T N E S S E T H:
WHEREAS, the Depositor is acting as depositor and registrant with
respect to the Prospectus, dated [________________], and the Prospectus
Supplement to the Prospectus, [________________] (the "Prospectus
Supplement"), relating to [________________] Certificates (the "Certificates")
to be issued pursuant to a Pooling and Servicing Agreement, dated as of
[________________] (the "P&S"), among the Depositor, as depositor,
[________________], as servicer (the "Servicer"), and [________________], as
trustee (the "Trustee");
WHEREAS, as an inducement to the Depositor to enter into the P&S,
and [____________________] (the "Underwriter[s]") to enter into the
Underwriting Agreement, dated [____________________] (the "Underwriting
Agreement") between the Depositor and the Underwriter[s], Seller has agreed to
provide for indemnification and contribution on the terms and conditions
hereinafter set forth;
WHEREAS, Xxxxxx purchased from Seller certain of the Mortgage
Loans underlying the Certificates (the "Mortgage Loans") pursuant to a Fifth
Amended and Restated Mortgage Loan Sale and Servicing Agreement, dated as of
June 1, 2006 (the "Sale and Servicing Agreement"), by and between Xxxxxx and
Seller; and
WHEREAS, pursuant to Section 15 of the Sale and Servicing
Agreement, the Seller has agreed to provide indemnification for certain
information.
NOW THEREFORE, in consideration of the agreements contained
herein, and other valuable consideration the receipt and sufficiency of which
are hereby acknowledged, the Depositor, Xxxxxx and the Seller agree as
follows:
1. Indemnification and Contribution.
(a) The Seller agrees to indemnify and hold harmless the
Depositor, Xxxxxx, the Underwriter[s] and their respective affiliates and
their respective present and former directors, officers, employees and agents
and each person, if any, who controls the Depositor, Xxxxxx, the
Underwriter[s] or such affiliates within the meaning of either Section 15 of
the
Exh. 3-1
Securities Act of 1933, as amended (the "1933 Act"), or Section 20 of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), against any and
all losses, claims, damages or liabilities, joint or several, to which they or
any of them may become subject under the 1933 Act, the 1934 Act or other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based in whole or in part upon any untrue
statement or alleged untrue statement of a material fact contained in the
Prospectus Supplement, Free Writing Prospectus or in the ABS Informational and
Computational Materials or any omission or alleged omission to state in the
Prospectus Supplement, Free Writing Prospectus or in the ABS Informational and
Computational Materials a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading, or any such untrue statement or omission
or alleged untrue statement or alleged omission made in any amendment of or
supplement to the Prospectus Supplement, Free Writing Prospectus or the ABS
Informational and Computational Materials and agrees to reimburse the
Depositor, Xxxxxx, the Underwriter[s] or such affiliates and each such
officer, director, employee, agent and controlling person promptly upon demand
for any legal or other expenses reasonably incurred by any of them in
connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that Seller shall be liable in any such case only to the
extent that any such loss, claim, damage, liability or action arises out of,
or is based upon, (i) any breach of the representation and warranty set forth
in Section 2(vii) below or (ii) any untrue statement or alleged untrue
statement or omission or alleged omission made in reliance upon and in
conformity with the Seller Information. The foregoing indemnity agreement is
in addition to any liability which Seller may otherwise have to the Depositor,
Xxxxxx, the Underwriter[s], their affiliates or any such director, officer,
employee, agent or controlling person of the Depositor, Xxxxxx, the
Underwriter[s] or their respective affiliates.
As used herein:
"Seller Information" means any information relating to Seller, the
Mortgage Loans and/or the underwriting guidelines relating to the Mortgage
Loans submitted by the Seller for use in the Prospectus Supplement, Free
Writing Prospectus or the ABS Informational and Computational Materials.
"Free Writing Prospectus" means any written communication that
constitutes a "free writing prospectus," as defined in Rule 405 under the 1933
Act.
"ABS Informational and Computational Materials" means any written
communication as defined in Item 1101(a) of Regulation AB under the 1933 Act
and the 1934 Act, as may be amended from time to time.
"Regulation AB": Subpart 229.100 - Asset-Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.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
(January 7, 2005)) or by the staff of the Commission, or as may be provided by
the Commission or its staff from time to time.
Exh. 3-2
(b) Promptly after receipt by any indemnified party under this
Section 1 of notice of any claim or the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against
any indemnifying party under this Section 1, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however,
that the failure to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 1 except to the extent it has
been materially prejudiced by such failure; and provided, further, however,
that the failure to notify any indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 1.
If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it wishes, jointly with any other similarly notified indemnifying party,
to assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the indemnified
party of its election to assume the defense of such claim or action, except as
provided in the following paragraph, the indemnifying party shall not be
liable to the indemnified party under this Section 1 for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation.
Any 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 such indemnified
party unless: (i) the employment thereof has been specifically authorized by
the indemnifying party in writing; (ii) such 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
necessary or appropriate for such indemnified party to employ separate
counsel; or (iii) 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 such 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 such 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
all such indemnified parties.
Each indemnified party, as a condition of the indemnity agreements
contained in this Section 1, shall cooperate with the indemnifying party in
the defense of any such action or claim. No indemnifying party shall 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 any
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
Exh. 3-3
Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for reasonable fees and expenses of counsel, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of
such settlement.
(c) If the indemnification provided for in this Section 1 is
unavailable to an indemnified party, then the indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages
or liabilities, in such proportion as is appropriate to reflect the relative
fault of the indemnifying party and the indemnified party, respectively, in
connection with the statements or omissions that result in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the indemnified party and indemnifying
party shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
such parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission and any other
equitable considerations.
(d) The indemnity and contribution agreements contained in this
Section 1 and the representations and warranties set forth in Section 2 shall
remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by the Depositor,
Xxxxxx, the Underwriter[s], their respective affiliates, directors, officers,
employees or agents or any person controlling the Depositor, Xxxxxx, the
Underwriter[s] or any such affiliate, and (iii) acceptance of and payment for
any of the Offered Certificates.
2. Representations and Warranties. Seller represents and warrants
that:
(i) Seller is validly existing and in good standing under
the laws of its jurisdiction of formation or incorporation, as
applicable, and has full power and authority to own its assets and
to transact the business in which it is currently engaged. Seller
is duly qualified to do business and is in good standing in each
jurisdiction in which the character of the business transacted by
it or any properties owned or leased by it requires such
qualification and in which the failure so to qualify would have a
material adverse effect on the business, properties, assets or
condition (financial or otherwise) of Seller;
(ii) Seller is not required to obtain the consent of any
other person or any consent, license, approval or authorization
from, or registration or declaration with, any governmental
authority, bureau or agency in connection with the execution,
delivery, performance, validity or enforceability of this
Agreement;
(iii) the execution, delivery and performance of this
Agreement by Seller will not violate any provision of any existing
law or regulation or any order decree of any court applicable to
Seller or any provision of the charter or bylaws of Seller, or
Exh. 3-4
constitute a material breach of any mortgage, indenture, contract
or other agreement to which Seller is a party or by which it may
be bound;
(iv) (a) no proceeding of or before any court, tribunal or
governmental body is currently pending or, (b) to the knowledge of
Seller, threatened against Seller or any of its properties or with
respect to this Agreement or the Offered Certificates, in either
case, which would have a material adverse effect on the business,
properties, assets or condition (financial or otherwise) of
Seller;
(v) Seller has full power and authority to make, execute,
deliver and perform this Agreement and all of the transactions
contemplated hereunder, and has taken all necessary corporate
action to authorize the execution, delivery and performance of
this Agreement. When executed and delivered, this Agreement will
constitute the legal, valid and binding obligation of each of
Seller enforceable in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally, by the availability of
equitable remedies, and by limitations of public policy under
applicable securities law as to rights of indemnity and
contribution thereunder;
(vi) this Agreement has been duly executed and delivered by
Seller; and
(vii) the Seller represents that the Seller Information
satisfies the requirements of Items 1108, 1110, 1111(a)(3), 1117
and 1119 of Regulation AB.
3. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to Seller, will be mailed, delivered
or faxed or emailed and confirmed by mail [______________________]; if sent to
Xxxxxx, xxxx be mailed, delivered or faxed or emailed and confirmed by mail to
Xxxxxx Xxxxxxx Mortgage Capital Inc., 1221 Avenue of the Xxxxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxxxxxxx Whole Loans Operations
Manager, Fax: [_______], Email: xxxxx.xxxxxxxxxx@xxxxxxxxxxxxx.xxx, with
copies to (i) Xxxxxxxx Xxxxx, Xxxxxx Xxxxxxx - Legal Counsel, Securities,
Xxxxxx Xxxxxxx, 0000 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Fax
[_____], Email: xxxxxxxx.xxxxx@xxxxxxxxxxxxx.xxx, and (ii) Xxxxxx Xxxxxxx,
Xxxxxx Xxxxxxx - SPG Finance, Xxxxxx Xxxxxxx, 0000 Xxxxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Fax [_____],Email: xxxxxx.xxxxxxx@xxxxxxxxxxxxx.xxx; if
to the Depositor, will be mailed, delivered or telegraphed and confirmed to
[____________________]; or if to the Underwriter[s], will be mailed, delivered
or telegraphed and confirmed to [_____________________]; or if to the Initial
Purchaser[s], will be mailed, delivered or telegraphed and confirmed to
[_____________________].
4. Miscellaneous. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York without giving
effect to the conflict of laws provisions thereof. This Agreement shall inure
to the benefit of and be binding upon the parties hereto and their successors
and assigns and the controlling persons referred to herein, and no other
person shall have any right or obligation hereunder. Neither this Agreement
nor any term hereof may be changed, waived, discharged or terminated orally,
but only by an instrument in
Exh. 3-5
writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought. This Agreement may be executed in
counterparts, each of which when so executed and delivered shall be considered
an original, and all such counterparts shall constitute one and the same
instrument. Capitalized terms used but not defined herein shall have the
meanings provided in the P&S.
[SIGNATURE PAGE FOLLOWS]
Exh. 3-6
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their respective officers hereunto duly authorized,
this __th day of [________].
[DEPOSITOR]
By: ___________________________________
Name:
Title:
XXXXXX XXXXXXX MORTGAGE CAPITAL INC.
By: ___________________________________
Name:
Title:
GREENPOINT MORTGAGE FUNDING, INC.,
By: ___________________________________
Name:
Title:
Exh. 3-7
EXHIBIT 4
CUSTODIAL ACCOUNT CERTIFICATION
_________ __, 200__
[_____________________] hereby certifies that it has established
the account described below as a Custodial Account pursuant to Subsection
11.04 of the Fifth Amended and Restated Mortgage Loan Sale and Servicing
Agreement, dated as of June 1, 2006, Fixed and Adjustable Rate Mortgage Loans.
Title of Account: "GreenPoint Mortgage Funding, Inc., in trust for
Xxxxxx Xxxxxxx Mortgage Capital Inc. as Purchaser of
Mortgage Loans and various Mortgagors."
Account Number: __________________________
Address of office or
branch of [_____________________]
at which the Custodial
account is maintained: ______________________
______________________
______________________
GREENPOINT MORTGAGE FUNDING, INC.,
By: _______________________________
Name:
Title:
Exh. 4-1
EXHIBIT 5
CUSTODIAL ACCOUNT LETTER AGREEMENT
_________ __, 200__
To:
------------------------------
(the "Depository")
As Servicer under the Fifth Amended and Restated Mortgage Loan
Sale and Servicing Agreement, dated as of June 1, 2006, we hereby authorize
and request you to establish an account, as a Custodial Account, to be
designated as "GreenPoint Mortgage Funding, Inc., in trust for Xxxxxx Xxxxxxx
Mortgage Capital Inc. as Purchaser of Mortgage Loans and various Mortgagors."
All deposits in the account shall be subject to withdrawal therefrom by order
signed by the Servicer. You may refuse any deposit which would result in
violation of the requirement that the account be fully insured as described
below. This letter is submitted to you in duplicate. Please execute and return
one original to us.
GREENPOINT MORTGAGE FUNDING, INC.,
By: _______________________________
Name:
Title:
Exh. 5-1
The undersigned, as Depository, hereby certifies that the
above-described account has been established under Account Number
____________________ at the office of the Depository indicated above, and
agrees to honor withdrawals on such account as provided above. The account
will be insured to the maximum amount permitted under applicable law by the
Federal Deposit Insurance Corporation through the Bank Insurance Fund ("BIF")
or the Savings Association Insurance Fund ("SAIF").
[________________________________],
as Depository
By: _______________________________
Name:
Title:
Date:
Exh. 5-2
EXHIBIT 6
ESCROW ACCOUNT CERTIFICATION
_________ __, 200__
[_____________________] hereby certifies that it has established
the account described below as an Escrow Account pursuant to Subsection 11.06
of the Fifth Amended and Restated Mortgage Loan Sale and Servicing Agreement,
dated as of June 1, 2006, Fixed and Adjustable Rate Mortgage Loans.
Title of Account: "GreenPoint Mortgage Funding, Inc., in trust for
Xxxxxx Xxxxxxx Mortgage Capital Inc. as Purchaser
of Mortgage Loans and various Mortgagors."
Account Number: __________________________
Address of office or
branch of [_____________________]
at which the Custodial
account is maintained: ______________________
______________________
______________________
GREENPOINT MORTGAGE FUNDING, INC.,
By: _______________________________
Name:
Title:
Exh. 6-1
EXHIBIT 7
ESCROW ACCOUNT LETTER AGREEMENT
_________ __, 200__
To:
-----------------------------
(the "Depository")
As Servicer under the Fifth Amended and Restated Mortgage Loan
Sale and Servicing Agreement, dated as of June 1, 2006, we hereby authorize
and request you to establish an account, as an Escrow Account, to be
designated as "GreenPoint Mortgage Funding, Inc., in trust for Xxxxxx Xxxxxxx
Mortgage Capital Inc. as Purchaser of Mortgage Loans and various Mortgagors."
All deposits in the account shall be subject to withdrawal therefrom by order
signed by the Servicer. You may refuse any deposit which would result in
violation of the requirement that the account be fully insured as described
below. This letter is submitted to you in duplicate. Please execute and return
one original to us.
GREENPOINT MORTGAGE FUNDING, INC.,
By: _______________________________
Name:
Title:
Exh. 7-1
The undersigned, as Depository, hereby certifies that the
above-described account has been established under Account Number
____________________ at the office of the Depository indicated above, and
agrees to honor withdrawals on such account as provided above. The account
will be insured to the maximum amount permitted under applicable law by the
Federal Deposit Insurance Corporation through the Bank Insurance Fund ("BIF")
or the Savings Association Insurance Fund ("SAIF").
[-----------------------------------],
as Depository
By: __________________________________
Name:
Title:
Date:
Xxx. 0-0
XXXXXXX 0
XXXXXXXXXXXX XXXXXXXXXX
Xxx. 8-1
EXHIBIT 9
FORM OF MONTHLY REMITTANCE REPORT
(Available upon request to the Seller.)
Exhibit 9A: 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.
-----------------------------------------------------------------------------------------------------------------------------
BORROWER_FIRST_NAME First Name of the Borrower.
-----------------------------------------------------------------------------------------------------------------------------
BORROWER_LAST_NAME Last name of the borrower.
-----------------------------------------------------------------------------------------------------------------------------
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 MM/DD/YYYY
servicer at the end of processing cycle, as reported by
Servicer.
-----------------------------------------------------------------------------------------------------------------------------
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 MM/DD/YYYY
by the courts
-----------------------------------------------------------------------------------------------------------------------------
BANKRUPTCY_DCHRG_DISM_DATE The Date The Loan Is Removed From Bankruptcy. Either by MM/DD/YYYY
Dismissal, Discharged and/or a Motion For Relief Was
Granted.
-----------------------------------------------------------------------------------------------------------------------------
Exh. 9-1
-----------------------------------------------------------------------------------------------------------------------------
Column/Header Name Description Decimal Format Comment
-----------------------------------------------------------------------------------------------------------------------------
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 MM/DD/YYYY
instructions to begin foreclosure proceedings.
-----------------------------------------------------------------------------------------------------------------------------
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 MM/DD/YYYY
Action
-----------------------------------------------------------------------------------------------------------------------------
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 MM/DD/YYYY
from the borrower.
-----------------------------------------------------------------------------------------------------------------------------
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 MM/DD/YYYY
Servicer.
-----------------------------------------------------------------------------------------------------------------------------
Exh. 9-2
-----------------------------------------------------------------------------------------------------------------------------
Column/Header Name Description Decimal Format Comment
-----------------------------------------------------------------------------------------------------------------------------
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.
-----------------------------------------------------------------------------------------------------------------------------
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 2
price opinion or appraisal.
-----------------------------------------------------------------------------------------------------------------------------
REPAIRED_PROP_VAL The amount the property would be worth if repairs are 2
completed pursuant to a broker's price opinion or appraisal.
-----------------------------------------------------------------------------------------------------------------------------
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 MM/DD/YYYY
Insurance Company.
-----------------------------------------------------------------------------------------------------------------------------
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 ($)
-----------------------------------------------------------------------------------------------------------------------------
Exh. 9-3
-----------------------------------------------------------------------------------------------------------------------------
Column/Header Name Description Decimal Format Comment
-----------------------------------------------------------------------------------------------------------------------------
POOL_CLAIM_PAID_DATE Date Claim Was Settled and The Check Was Issued By The Pool MM/DD/YYYY
Insurer
-----------------------------------------------------------------------------------------------------------------------------
POOL_CLAIM_AMT_PAID Amount Paid On Claim By Pool Insurance Company 2 No commas(,) or
dollar signs ($)
-----------------------------------------------------------------------------------------------------------------------------
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 ($)
-----------------------------------------------------------------------------------------------------------------------------
Exh. 9-4
Exhibit 9B: Standard File Codes - Delinquency Reporting
The Loss Mit Type field should show the approved Loss Mitigation Code as
follows:
o ASUM- Approved Assumption
o BAP- Borrower Assistance Program
o CO- Charge Off
o DIL- Deed-in-Lieu
o FFA- Formal Forbearance Agreement
o MOD- Loan Modification
o PRE- Pre-Sale
o SS- Short Sale
o 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:
o Mortgagor
o Tenant
o Unknown
o Vacant
The Property Condition field should show the last reported condition of the
property as follows:
o Damaged
o Excellent
o Fair
o Gone
Exh. 9-5
o Good
o Poor
o Special Hazard
o 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
--------------------------------------------------------------
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
---------------------------------------------------------------
Exh. 9-6
---------------------------------------------------------------
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
---------------------------------------------------------------
Exh. 9-7
Exhibit 9C: Standard File Layout - Master Servicing
-----------------------------------------------------------------------------------------------------------------------------------
Max
Column Name Description Decimal Format Comment Size
-----------------------------------------------------------------------------------------------------------------------------------
SER_INVESTOR_NBR A value assigned by the Servicer Text up to 10 digits 20
to define a group of loans.
-----------------------------------------------------------------------------------------------------------------------------------
LOAN_NBR A unique identifier assigned to Text up to 10 digits 10
each loan by the investor.
-----------------------------------------------------------------------------------------------------------------------------------
SERVICER_LOAN_NBR A unique number assigned to a Text up to 10 digits 10
loan by the Servicer. This may
be different than the LOAN_NBR.
-----------------------------------------------------------------------------------------------------------------------------------
BORROWER_NAME The borrower name as received in Maximum length of 30 (Last, 30
the file. It is not separated by First)
first and last name.
-----------------------------------------------------------------------------------------------------------------------------------
SCHED_PAY_AMT Scheduled monthly principal and 2 No commas(,) or dollar signs 11
scheduled interest payment that a ($)
borrower is expected to pay, P&I
constant.
-----------------------------------------------------------------------------------------------------------------------------------
NOTE_INT_RATE The loan interest rate as 4 Max length of 6 6
reported by the Servicer.
-----------------------------------------------------------------------------------------------------------------------------------
NET_INT_RATE The loan gross interest rate less 4 Max length of 6 6
the service fee rate as reported
by the Servicer.
-----------------------------------------------------------------------------------------------------------------------------------
SERV_FEE_RATE The servicer's fee rate for a 4 Max length of 6 6
loan as reported by the Servicer.
-----------------------------------------------------------------------------------------------------------------------------------
SERV_FEE_AMT The servicer's fee amount for a 2 No commas(,) or dollar signs 11
loan as reported by the Servicer. ($)
-----------------------------------------------------------------------------------------------------------------------------------
NEW_PAY_AMT The new loan payment amount as 2 No commas(,) or dollar signs 11
reported by the Servicer. ($)
-----------------------------------------------------------------------------------------------------------------------------------
NEW_LOAN_RATE The new loan rate as reported by 4 Max length of 6 6
the Servicer.
-----------------------------------------------------------------------------------------------------------------------------------
ARM_INDEX_RATE The index the Servicer is using 4 Max length of 6 6
to calculate a forecasted rate.
-----------------------------------------------------------------------------------------------------------------------------------
ACTL_BEG_PRIN_BAL The borrower's actual principal 2 No commas(,) or dollar signs 11
balance at the beginning of the ($)
processing cycle.
-----------------------------------------------------------------------------------------------------------------------------------
ACTL_END_PRIN_BAL The borrower's actual principal 2 No commas(,) or dollar signs 11
balance at the end of the ($)
processing cycle.
-----------------------------------------------------------------------------------------------------------------------------------
Exh. 9-8
-----------------------------------------------------------------------------------------------------------------------------------
Max
Column Name Description Decimal Format Comment Size
-----------------------------------------------------------------------------------------------------------------------------------
BORR_NEXT_PAY_DUE_DATE The date at the end of processing MM/DD/YYYY 10
cycle that the borrower's next
payment is due to the Servicer,
as reported by Servicer.
-----------------------------------------------------------------------------------------------------------------------------------
SERV_CURT_AMT_1 The first curtailment amount to 2 No commas(,) or dollar signs 11
be applied. ($)
-----------------------------------------------------------------------------------------------------------------------------------
SERV_CURT_DATE_1 The curtailment date associated MM/DD/YYYY 10
with the first curtailment
amount.
-----------------------------------------------------------------------------------------------------------------------------------
CURT_ADJ_ AMT_1 The curtailment interest on the 2 No commas(,) or dollar signs 11
first curtailment amount, if ($)
applicable.
-----------------------------------------------------------------------------------------------------------------------------------
SERV_CURT_AMT_2 The second curtailment amount to 2 No commas(,) or dollar signs 11
be applied. ($)
-----------------------------------------------------------------------------------------------------------------------------------
SERV_CURT_DATE_2 The curtailment date associated MM/DD/YYYY 10
with the second curtailment
amount.
-----------------------------------------------------------------------------------------------------------------------------------
CURT_ADJ_ AMT_2 The curtailment interest on the 2 No commas(,) or dollar signs 11
second curtailment amount, if ($)
applicable.
-----------------------------------------------------------------------------------------------------------------------------------
SERV_CURT_AMT_3 The third curtailment amount to 2 No commas(,) or dollar signs 11
be applied. ($)
-----------------------------------------------------------------------------------------------------------------------------------
SERV_CURT_DATE_3 The curtailment date associated MM/DD/YYYY 10
with the third curtailment amount.
-----------------------------------------------------------------------------------------------------------------------------------
CURT_ADJ_AMT_3 The curtailment interest on the 2 No commas(,) or dollar signs 11
third curtailment amount, if ($)
applicable.
-----------------------------------------------------------------------------------------------------------------------------------
PIF_AMT The loan "paid in full" amount as 2 No commas(,) or dollar signs 11
reported by the Servicer. ($)
-----------------------------------------------------------------------------------------------------------------------------------
PIF_DATE The paid in full date as reported MM/DD/YYYY 10
by the Servicer.
-----------------------------------------------------------------------------------------------------------------------------------
ACTION_CODE The standard FNMA numeric code Action Code Key: 2
used to indicate the 15=Bankruptcy,
default/delinquent status of a 30=Foreclosure, , 60=PIF,
particular loan. 63=Substitution,
65=Repurchase,70=REO
-----------------------------------------------------------------------------------------------------------------------------------
INT_ADJ_AMT The amount of the interest 2 No commas(,) or dollar signs 11
adjustment as reported by the ($)
Servicer.
-----------------------------------------------------------------------------------------------------------------------------------
SOLDIER_SAILOR_ADJ_AMT The Soldier and Sailor Adjustment 2 No commas(,) or dollar signs 11
amount, if applicable. ($)
-----------------------------------------------------------------------------------------------------------------------------------
NON_ADV_LOAN_AMT The Non Recoverable Loan Amount, 2 No commas(,) or dollar signs 11
if applicable. ($)
-----------------------------------------------------------------------------------------------------------------------------------
Exh. 9-9
-----------------------------------------------------------------------------------------------------------------------------------
Max
Column Name Description Decimal Format Comment Size
-----------------------------------------------------------------------------------------------------------------------------------
LOAN_LOSS_AMT The amount the Servicer is 2 No commas(,) or dollar signs 11
passing as a loss, if applicable. ($)
-----------------------------------------------------------------------------------------------------------------------------------
SCHED_BEG_PRIN_BAL The scheduled outstanding 2 No commas(,) or dollar signs 11
principal amount due at the ($)
beginning of the cycle date to be
passed through to investors.
-----------------------------------------------------------------------------------------------------------------------------------
SCHED_END_PRIN_BAL The scheduled principal balance 2 No commas(,) or dollar signs 11
due to investors at the end of a ($)
processing cycle.
-----------------------------------------------------------------------------------------------------------------------------------
SCHED_PRIN_AMT The scheduled principal amount as 2 No commas(,) or dollar signs 11
reported by the Servicer for the ($)
current cycle -- only applicable
for Scheduled/Scheduled Loans.
-----------------------------------------------------------------------------------------------------------------------------------
SCHED_NET_INT The scheduled gross interest 2 No commas(,) or dollar signs 11
amount less the service fee ($)
amount for the current cycle as
reported by the Servicer -- only
applicable for
Scheduled/Scheduled Loans.
-----------------------------------------------------------------------------------------------------------------------------------
ACTL_PRIN_AMT The actual principal amount 2 No commas(,) or dollar signs 11
collected by the Servicer for the ($)
current reporting cycle -- only
applicable for Actual/Actual
Loans.
-----------------------------------------------------------------------------------------------------------------------------------
ACTL_NET_INT The actual gross interest amount 2 No commas(,) or dollar signs 11
less the service fee amount for ($)
the current reporting cycle as
reported by the Servicer -- only
applicable for Actual/Actual
Loans.
-----------------------------------------------------------------------------------------------------------------------------------
PREPAY_PENALTY_ AMT The penalty amount received when 2 No commas(,) or dollar signs 11
a borrower prepays on his loan as ($)
reported by the Servicer.
-----------------------------------------------------------------------------------------------------------------------------------
PREPAY_PENALTY_ WAIVED The prepayment penalty amount for 2 No commas(,) or dollar signs 11
the loan waived by the servicer. ($)
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
MOD_DATE The Effective Payment Date of the MM/DD/YYYY 10
Modification for the loan.
-----------------------------------------------------------------------------------------------------------------------------------
MOD_TYPE The Modification Type. Varchar - value can be alpha 30
or numeric
-----------------------------------------------------------------------------------------------------------------------------------
DELINQ_P&I_ADVANCE_AMT The current outstanding principal 2 No commas(,) or dollar signs 11
and interest advances made by ($)
Servicer.
-----------------------------------------------------------------------------------------------------------------------------------
Exh. 9-10
Exhibit 9D : Calculation of Realized Loss/Gain Form 332- Instruction Sheet
NOTE: Do not net or combine items. Show all expenses individually and all
credits as separate line items. Claim packages are due on the remittance
report date. Late submissions may result in claims not being passed until the
following month. The Servicer is responsible to remit all funds pending loss
approval and /or resolution of any disputed items.
(a) The numbers on the 332 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. Required documentation:
* For taxes and insurance advances - see page 2 of 332 form - breakdown
required showing period of coverage, base tax, interest, penalty. Advances
prior to default require evidence of servicer efforts to recover advances.
* For escrow advances - complete payment history (to calculate advances from
last positive escrow balance forward)
* Other expenses - copies of corporate advance history showing all payments
* REO repairs > $1500 require explanation
* REO repairs >$3000 require evidence of at least 2 bids.
* Short Sale or Charge Off require P&L supporting the decision and WFB's
approved Officer Certificate
* Unusual or extraordinary items may require further documentation.
13. The total of lines 1 through 12.
Exh. 9-11
Credits:
14-21. Complete as applicable. Required documentation:
* Copy of the HUD 1 from the REO sale. If a 3rd Party Sale, bid instructions
and Escrow Agent / Attorney Letter of Proceeds Breakdown.
* Copy of EOB for any MI or gov't guarantee
* All other credits need to be clearly defined on the 332 form
22. The total of lines 14 through 21.
Please Note: For HUD/VA loans, use line (18a) for Part A/Initial proceeds and
line (18b) for Part B/Supplemental proceeds.
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 ( ).
Exh. 9-12
Exhibit 9E: Calculation of Realized Loss/Gain Form 332
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 Type: REO Sale 3rd Party Sale Short Sale Charge Off
Was this loan granted a Bankruptcy deficiency or cramdown Yes No
If "Yes", provide deficiency or cramdown amount _______________________________
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 (see page 2) __________(5)
(6) Property Maintenance __________(6)
(7) MI/Hazard Insurance Premiums (see page 2) __________(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 ___________________________ __________(12)
HOA/Condo Fees __________________________ __________(12)
_________________________________________ __________(12)
Total Expenses __________(13)
Credits:
(14) Escrow Balance $__________(14)
(15) HIP Refund __________(15)
(16) Rental Receipts __________(16)
(17) Hazard Loss Proceeds __________(17)
Primary Mortgage Insurance / Gov't Insurance
(18) HUD Part A __________(18a)
HUD Part B __________(18b)
(19) Pool Insurance Proceeds __________(19)
Exh. 9-13
(20) Proceeds from Sale of Acquired Property __________(20)
(21) Other (itemize) __________(21)
__________(21)
Total Credits $__________(22)
Total Realized Loss (or Amount of Gain) $__________(23)
Xxx. 0-00
Xxxxxx Xxxxxxxxxxxx Detail
----------------------------------------------------------------------------------------------------------------------
Type Period of
(Tax /Ins.) Date Paid Coverage Total Paid Base Amount Penalties Interest
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
Exh. 9-15
EXHIBIT 10
FORM OF SELLER'S OFFICER'S CERTIFICATE
I, ____________________, hereby certify that I am the duly elected
[Vice] President of GreenPoint Mortgage Funding, Inc., a corporation organized
under the laws of the State of New York (the "Company") and further as
follows:
1. Attached hereto as Exhibit 1 is a true, correct and complete
copy of the charter of the Company which is in full force and effect on the
date hereof and which has been in effect without amendment, waiver, rescission
or modification since ___________.
2. Attached hereto as Exhibit 2 is a true, correct and complete
copy of the bylaws of the Company which are in effect on the date hereof and
which have been in effect without amendment, waiver, rescission or
modification since ___________.
3. Attached hereto as Exhibit 3 is an original certificate of good
standing of the Company issued within ten days of the date hereof, and no
event has occurred since the date thereof which would impair such standing.
4. Attached hereto as Exhibit 4 is a true, correct and complete
copy of the corporate resolutions of the Board of Directors of the Company
authorizing the Company to execute and deliver each of the Fifth Amended and
Restated Mortgage Loan Sale and Servicing Agreement, dated as of June 1, 2006,
by and between Xxxxxx Xxxxxxx Mortgage Capital Inc. (the "Purchaser") and the
Company (the "Sale and Servicing Agreement") and the Custodial Agreement,
dated as of September 1, 2003, by and among the Company, the Purchaser and
______________[CUSTODIAN] (the "Custodial Agreement") [and to endorse the
Mortgage Notes and execute the Assignments of Mortgages by original [or
facsimile] signature], and such resolutions are in effect on the date hereof
and have been in effect without amendment, waiver, rescission or modification
since ____________.
5. Either (i) no consent, approval, authorization or order of any
court or governmental agency or body is required for the execution, delivery
and performance by the Company of or compliance by the Company with the Sale
and Servicing Agreement, the Custodial Agreement, the sale of the mortgage
loans or the consummation of the transactions contemplated by the agreements;
or (ii) any required consent, approval, authorization or order has been
obtained by the Company.
6. Neither the consummation of the transactions contemplated by,
nor the fulfillment of the terms of the Sale and Servicing Agreement and the
Custodial Agreement conflicts or will conflict with or results or will result
in a breach of or constitutes or will constitute a default under the charter
or by-laws of the Company, the terms of any indenture or other agreement or
instrument to which the Company is a party or by which it is bound or to which
it is subject, or any statute or order, rule, regulations, writ, injunction or
decree of any court, governmental authority or regulatory body to which the
Company is subject or by which it is bound.
Exh. 10-1
7. To the best of my knowledge, there is no action, suit,
proceeding or investigation pending or threatened against the Company which,
in my judgment, either in any one instance or in the aggregate, may result in
any material adverse change in the business, operations, financial condition,
properties or assets of the Company or in any material impairment of the right
or ability of the Company to carry on its business substantially as now
conducted or in any material liability on the part of the Company or which
would draw into question the validity of the Sale and Servicing Agreement and
the Custodial Agreement, or the mortgage loans or of any action taken or to be
taken in connection with the transactions contemplated hereby, or which would
be likely to impair materially the ability of the Company to perform under the
terms of the Sale and Servicing Agreement and the Custodial Agreement.
8. Each person listed on Exhibit 5 attached hereto who, as an
officer or representative of the Company, signed (a) the Sale and Servicing
Agreement, (b) the Custodial Agreement and (c) any other document delivered or
on the date hereof in connection with any purchase described in the agreements
set forth above was, at the respective times of such signing and delivery, and
is now, a duly elected or appointed, qualified and acting officer or
representative of the Company, who holds the office set forth opposite his or
her name on Exhibit 5, and the signatures of such persons appearing on such
documents are their genuine signatures.
9. The Company is duly authorized to engage in the transactions
described and contemplated in the Sale and Servicing Agreement and the
Custodial Agreement.
Exh. 10-2
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the
seal of the Company.
Dated:
By:
--------------------------------
Name:
[Seal] Title: [Vice] President
I, ________________________, an [Assistant] Secretary of
GreenPoint Mortgage Funding, Inc., hereby certify that ____________ is the
duly elected, qualified and acting [Vice] President of the Company and that
the signature appearing above is [her] [his] genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated:
By:
--------------------------------
Name:
[Seal] Title: [Vice] President
Exh. 10-3
EXHIBIT 5 to
Company's Officer's Certificate
NAME TITLE SIGNATURE
------------------ -------------- ----------------
------------------ -------------- ----------------
------------------ -------------- ----------------
------------------ -------------- ----------------
------------------ -------------- ----------------
------------------ -------------- ----------------
------------------ -------------- ----------------
Exh. 10-4
EXHIBIT 11
FORM OF OPINION OF COUNSEL TO SELLER
______________2006
Re:
Ladies and Gentlemen:
I have acted as counsel to GreenPoint Mortgage Funding, Inc., a
New York corporation (the "Company"), in connection with certain matters
described in the Agreements. In connection with rendering this opinion letter,
I, or attorneys working under my direction have examined, among other things,
originals, certified copies or copies otherwise identified as being true
copies of the following:
A. Signed copies of the Agreements;
B. The Company's Certificate of Incorporation
C. The Company's By-Laws; and
D. Resolutions adopted by the Board of Directors of the Company.
For the purpose of rendering this opinion, I have made such
documentary, factual and legal examinations as I deemed necessary under the
circumstances. As to factual matters, I have relied upon statements,
certificates and other assurances of public officials and of officers and
other representatives of the Company, and upon such other certificates as I
deemed appropriate, which factual matters have not been independently
established or verified by me. I have also assumed, among other things, the
genuineness of all signatures, the legal capacity of all natural persons, the
authenticity of all documents submitted to me as originals, and the conformity
to original documents of all documents submitted to me as copies and the
authenticity of the originals of such copied documents.
On the basis of and subject to the foregoing examination, and in
reliance thereon, and subject to the assumptions, qualifications, exceptions
and limitations expressed herein, I am of the opinion that:
1. The Company has been duly incorporated and is validly existing
and in good standing under the laws of the State of New York with corporate
power and authority to own its properties and conduct its business as
presently conducted by it. The Company has the corporate power and authority
to execute, deliver, and perform its obligations under the Agreements.
2. The Agreements have been duly and validly authorized, executed
and delivered by the Company.
Xxx. 00-0
0. The Agreements constitute valid, legal and binding obligations
of the Company, enforceable against the Company in accordance with their
respective terms.
4. No consent, approval, authorization or order of any United
States federal or California government authority on the part of the Company
is required for the execution, delivery and performance by the Company of the
Agreements, except for those consents, approvals, authorizations or orders
which previously have been obtained.
5. The execution, delivery and performance of the Agreements will
not, as of the Closing Date, result in a violation of the Certificate of
Incorporation or By-Laws of the Company, or, to the best of my knowledge,
result in a violation of, or constitute a default under, (i) the terms of any
indenture or other agreement or instrument known to me to which the Company is
a party or by which it is bound, (ii) any California or United States federal
statute or regulation applicable to the Company, or (iii) any order of any
State of California or United States federal court, regulatory body,
administrative agency or governmental body having jurisdiction over the
Company, except in any such case where the violation or default would not have
a material adverse effect on the Company or its ability to perform its
obligations under the Agreements.
6. There is no action, suit, proceeding or investigation pending
or, to the best of my knowledge, threatened against the Company which, in my
judgment, would draw into question the validity of the Agreements or which
would be likely to impair materially the ability of the Company to perform
under the terms of the Agreements.
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 Company have all requisite power and authority to execute, deliver and
perform their respective obligations under 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 paragraph 3 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 provisions for
indemnification in the Agreements to the extent such provisions may be held to
be unenforceable as contrary to public policy.
Exh. 11-2
C. My opinion expressed in paragraph 5 above relating to
violations of United States federal and California statutes, regulations or
orders applicable to the Company is limited to such statutes, regulations or
orders that in my experience are typically applicable to a transaction of the
nature contemplated by the Agreements.
D. I have assumed, without independent check or certification,
that there are no agreements or understandings among the Company and any other
party, which would expand, modify or otherwise affect the terms of the
Agreements or the respective rights or obligations of the parties thereunder.
I am admitted to practice in the State of California, and I render
no opinion herein as to matters involving or governed by the laws of any
jurisdiction other than the State of California and the federal laws of the
United States of America. I also express no opinion as to whether the laws of
any particular jurisdiction apply, and no opinion to the extent that the laws
of any jurisdiction other than those identified above are applicable to the
Agreements.
This opinion letter has been prepared and should be understood in
accordance with the Legal Opinion Principles, 53 Bus. Law. 831 (1998), and
Guidelines for the Preparation of Closing Opinions, 57 Bus. Law. 345 (2001),
of the Committee on Legal Opinions, ABA Section of Business Law.
Very truly yours,
Xxxxx X. Xxxxxxx
General Counsel
GreenPoint Mortgage Funding, Inc.
Exh. 11-3
EXHIBIT 12
FORM OF SECURITY RELEASE CERTIFICATION
-------------------, -----
___________________________
___________________________
Attention: ________________
___________________________
Re: Notice of Sale and Release of Collateral
Dear Sirs:
This letter serves as notice that GreenPoint Mortgage Funding,
Inc., a corporation organized pursuant to the laws of the state of
[___________] (the "Company") has committed to sell to Xxxxxx Xxxxxxx Mortgage
Capital Inc. under a Fifth Amended and Restated Mortgage Loan Sale and
Servicing Agreement, dated as of June 1, 2006, certain mortgage loans
originated by the Company. The Company warrants that the mortgage loans to be
sold to Xxxxxx Xxxxxxx Mortgage Capital Inc. are in addition to and beyond any
collateral required to secure advances made by you to the Company.
The Company acknowledges that the mortgage loans to be sold to
Xxxxxx Xxxxxxx Mortgage Capital Inc. shall not be used as additional or
substitute collateral for advances made by [____________]. Xxxxxx Xxxxxxx
Mortgage Capital Inc. understands that the balance of the Company's mortgage
loan portfolio may be used as collateral or additional collateral for advances
made by [___________], and confirms that it has no interest therein.
Exh. 12-1
Execution of this letter by [___________] shall constitute a full
and complete release of any security interest, claim, or lien which
[___________] may have against the mortgage loans to be sold to Xxxxxx Xxxxxxx
Mortgage Capital Inc.
Very truly yours,
By:___________________________________
Name:_________________________________
Title:________________________________
Date:
Acknowledged and approved:
--------------------------
By:
Name:
Title:
Date:
Exh. 12-2
EXHIBIT 13
FORM OF SECURITY RELEASE CERTIFICATION
I. Release of Security Interest
The financial institution named below hereby relinquishes any and
all right, title and interest it may have in all Mortgage Loans to be
purchased by Xxxxxx Xxxxxxx Mortgage Capital Inc. from the Company named below
pursuant to that certain Fifth Amended and Restated Mortgage Loan Sale and
Servicing Agreement, dated as of June 1, 2006 and certifies that all notes,
mortgages, assignments and other documents in its possession relating to such
Mortgage Loans have been delivered and released to the Company named below or
its designees, as of the date and time of the sale of such Mortgage Loans to
Xxxxxx Xxxxxxx Mortgage Capital Inc.
Name and Address of Financial Institution
(Name)
(Address)
By:
Exh. 13-1
II. Certification of Release
The Company named below hereby certifies to Xxxxxx Xxxxxxx
Mortgage Capital Inc. that, as of the date and time of the sale of the
above-mentioned Mortgage Loans to Xxxxxx Xxxxxxx Mortgage Capital Inc. the
security interests in the Mortgage Loans released by the above-named financial
institution comprise all security interests relating to or affecting any and
all such Mortgage Loans. The Company warrants that, as of such time, there are
and will be no other security interests affecting any or all of such Mortgage
Loans.
By:________________________________
Title:_____________________________
Date:
Exh. 13-2
EXHIBIT 14
FORM OF ASSIGNMENT AND CONVEYANCE
On this ___ day of __________, ____, GreenPoint Mortgage Funding,
Inc. ("Seller"), as (i) the Seller and Servicer under that certain Purchase
Price and Terms Letter, dated as of ___________, _____ (the "PPTL"), (ii) the
Seller and Servicer under that certain Fifth Amended and Restated Mortgage
Loan Sale and Servicing Agreement, dated as of June 1, 2006 (the "Sale and
Servicing Agreement") and, together with the PPTL, the "Agreements") does
hereby sell, transfer, assign, set over and convey to Xxxxxx Xxxxxxx Mortgage
Capital Inc. ("Purchaser") as the Purchaser under the Agreements, without
recourse, but subject to the terms of the Agreements, all right, title and
interest of, in and to the Mortgage Loans listed on the Mortgage Loan Schedule
attached hereto as Exhibit A (the "Mortgage Loans"), together with the
Mortgage Files and all rights and obligations arising under the documents
contained therein. Each Mortgage Loan subject to the Agreements was
underwritten in accordance with, and conforms to, the Underwriting Guidelines
attached hereto as Exhibit C. Pursuant to Section 6 of the Sale and Servicing
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 Servicing File required to be retained by the Servicer to
service the Mortgage Loans pursuant to the Sale and Servicing Agreement and
thus not delivered to the Purchaser are and shall be held in trust by the
Seller in its capacity as Servicer for the benefit of the Purchaser as the
owner thereof. The Servicer's possession of any portion of the Servicing File
is at the will of the Purchaser for the sole purpose of facilitating servicing
of the related Mortgage Loan pursuant to the Sale and Servicing Agreement, and
such retention and possession by the Servicer shall be in a custodial capacity
only. The ownership of each Mortgage Note, Mortgage and the contents of the
Mortgage File and Servicing File is vested in 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 or the Servicer
shall immediately vest in the Purchaser and shall be retained and maintained,
in trust, by the Servicer at the will of the Purchaser in such custodial
capacity only.
The Mortgage Loan Package characteristics of the Mortgage Loans
subject hereto are set forth on Exhibit B hereto.
In accordance with Section 6 of the Sale and Servicing Agreement,
the Purchaser accepts the Mortgage Loans listed on Exhibit A attached hereto.
Notwithstanding the foregoing the Purchaser does not waive any rights or
remedies it may have under the Agreements.
Capitalized terms used herein and not otherwise defined shall have
the meanings set forth in the Sale and Servicing Agreement.
[Signature Page Follows]
Xxx. 00-0
XXXXXXXXXX XXXXXXXX FUNDING, INC.,
By: _______________________________
Name:
Title:
Accepted and Agreed:
XXXXXX XXXXXXX MORTGAGE CAPITAL INC.
By:
--------------------------
Name:
Title:
Xxx. 00-0
EXHIBIT A
TO ASSIGNMENT AND CONVEYANCE AGREEMENT
THE MORTGAGE LOANS
Xxx. 00-0
XXXXXXX X
TO ASSIGNMENT AND CONVEYANCE AGREEMENT
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE POOL CHARACTERISTICS OF
EACH MORTGAGE LOAN PACKAGE
Pool Characteristics of the Mortgage Loan Package as delivered on
the related Closing Date:
No Mortgage Loan has: (1) an outstanding principal balance less
than $_________; (2) an origination date earlier than _ months prior to the
related Cut-off Date; (3) an CLTV of greater than _____%; (4) a FICO Score of
less than ___; or (5) a debt-to-income ratio of more than __%. Each Mortgage
Loan has a Mortgage Interest Rate of at least ___% per annum and an
outstanding principal balance less than $_________. Each Adjustable Rate
Mortgage Loan has an Index of [_______].
Exh. 14-4
EXHIBIT C
TO ASSIGNMENT AND CONVEYANCE AGREEMENT
UNDERWRITING GUIDELINES
Exh. 14-5
EXHIBIT 15
FORM OF ASSIGNMENT AND RECOGNITION AGREEMENT
THIS ASSIGNMENT AND RECOGNITION AGREEMENT, dated [____________ __,
20__] ("Agreement"), among Xxxxxx Xxxxxxx Mortgage Capital Inc. ("Assignor"),
[____________________] ("Assignee") and [SELLER] (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 all of the right, title and interest of the Assignor,
as purchaser, in, to and under (a) those certain Mortgage Loans listed on the
schedule (the "Mortgage Loan Schedule") attached hereto as Exhibit A (the
"Mortgage Loans") and (b) except as described below, that certain Fifth
Amended and Restated Mortgage Loan Sale and Servicing Agreement (the "Sale and
Servicing Agreement"), dated as of June 1, 2006 between the Assignor, as
purchaser (the "Purchaser"), and the Company, as seller, solely insofar as the
Sale and Servicing Agreement relates to the Mortgage Loans.
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 (a) Subsection 7.05 of the
Sale and Servicing Agreement or (b) any mortgage loans subject to the Sale and
Servicing 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. From and after the date hereof (the "Securitization Closing
Date"), the Company shall and does hereby recognize that the Assignee will
transfer the Mortgage Loans and assign its rights under the Sale and Servicing
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 will be the owner of the Mortgage Loans, (ii)
the Company shall look solely to the Trust for performance of any obligations
of the Assignor insofar as they relate to the Mortgage Loans, (iii) the 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 Sale and Servicing Agreement,
including, without limitation, the enforcement of the document delivery
requirements set forth in Section 6 of the Sale and Servicing Agreement, and
shall be entitled to enforce all of the
Exh. 15-1
obligations of the Company thereunder insofar as they relate to the Mortgage
Loans, and (iv) all references to the Purchaser, the Custodian or the Bailee
under the Sale and Servicing Agreement insofar as they relate to the Mortgage
Loans, shall be deemed to refer to the 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 Sale and Servicing Agreement which amendment,
modification, waiver or other alteration would in any way affect the Mortgage
Loans or the Company's performance under the Sale and Servicing Agreement with
respect to the Mortgage Loans without the prior written consent of the
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 duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation;
(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 Sale and Servicing 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;
(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 to the Company's knowledge, threatened against the Company, before any
court, administrative agency or other tribunal, which would draw into question
the validity of this Agreement or the Sale and Servicing 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 Sale and Servicing Agreement, and the Company is
solvent.
Xxx. 00-0
0. Xxxxxxxx to Section 15 of the Sale and Servicing 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
Section 7.01 and Section 7.02 of the Sale and Servicing Agreement are true and
correct as of the date hereof as if such representations and warranties were
made on the date hereof unless otherwise specifically stated in such
representations and warranties.
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 Sale
and Servicing Agreement as if they were set forth herein (including without
limitation the repurchase and indemnity obligations set forth therein).
Miscellaneous
6. The Assignee's address for purposes of all notices and
correspondence related to the Mortgage Loans and the Purchase Agreement is:
[Assignee]
[Address]
Attention: [_______]
Telephone: [________]
Telecopy: [________]
7. 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.
8. 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.
9. 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.
10. Each of this Agreement and the Sale and Servicing Agreement
shall survive the conveyance of the Mortgage Loans and the assignment of the
Sale and Servicing 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 Sale and Servicing Agreement.
Xxx. 00-0
00. 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.
12. In the event that any provision of this Agreement conflicts
with any provision of the Sale and Servicing Agreement with respect to the
Mortgage Loans, the terms of this Agreement shall control.
13. 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 Sale and Servicing Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
GREENPOINT MORTGAGE FUNDING, INC.,
By:__________________________________
Name:________________________________
Its:
XXXXXX XXXXXXX MORTGAGE CAPITAL INC.
By:__________________________________
Name:________________________________
Its:
Exh. 15-4
EXHIBIT 16
ANNUAL CERTIFICATION
Re: The Fifth Amended and Restated Mortgage Loan Sale and Servicing
Agreement dated as of June 1, 2006 (the "Agreement"), among Xxxxxx
Xxxxxxx Mortgage Capital Inc. and GreenPoint Mortgage Funding,
Inc.
I, ________________________________, the _______________________
of GreenPoint Mortgage Funding, Inc., certify to [the Purchaser], [the
Depositor], and the [Master Servicer] [Securities Administrator] [Trustee],
and their officers, with the knowledge and intent that they will rely upon
this certification, that:
(1) I have reviewed the servicer compliance statement of the
Seller provided in accordance with Item 1123 of Regulation AB (the "Compliance
Statement"), the report on assessment of the Seller's compliance with the
servicing criteria set forth in Item 1122(d) of Regulation AB and identified
as the responsibility of the Seller on Exhibit 17 of the Fifth Amended and
Restated Mortgage Loan Sale and Servicing Agreement, dated as of June 1, 2006
(the "Servicing Criteria"), provided in accordance with Rules 13a-18 and
15d-18 under Securities Exchange Act of 1934, as amended (the "Exchange Act")
and Item 1122 of Regulation AB (the "Servicing Assessment"), the registered
public accounting firm's attestation report provided in accordance with Rules
13a-18 and 15d-18 under the Exchange Act and Section 1122(b) of Regulation AB
(the "Attestation Report"), and all servicing reports, officer's certificates
and other information relating to the servicing of the Mortgage Loans by the
Seller during 200[ ] that were delivered by the Seller to the [Depositor]
[Master Servicer] [Securities Administrator] [Trustee] pursuant to the
Agreement (collectively, the "Seller Servicing Information");
(2) Based on my knowledge, the Seller Servicing Information, taken
as a whole, does not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements made, in the light
of the circumstances under which such statements were made, not misleading
with respect to the period of time covered by the Seller Servicing
Information;
(3) Based on my knowledge, all of the Seller Servicing
Information required to be provided by the Seller under the Agreement has been
provided to the [Depositor] [Master Servicer] [Securities Administrator]
[Trustee];
(4) I am responsible for reviewing the activities performed by the
Seller 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 Seller has fulfilled its obligations under the
Agreement in all material respects; and
(5) The Compliance Statement required to be delivered by the
Seller pursuant to the Agreement, and the Servicing Assessment and Attestation
Report required to be provided by the Seller and by any Subservicer or
Subcontractor pursuant to the Agreement, have been
Exh. 16-1
provided to the [Depositor] [Master Servicer]. Any material instances of
noncompliance described in such reports have been disclosed to the [Depositor]
[Master Servicer]. Any material instance of noncompliance with the Servicing
Criteria has been disclosed in such reports.
Date: ___________________________
By: _____________________________
Name:
Title:
Xxx. 00-0
XXXXXXX 00
XXXXXXXXX XXXXXXXX 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":
-----------------------------------------------------------------------------------------------------------------------------------
Applicable Servicing
Servicing Criteria Criteria
-----------------------------------------------------------------------------------------------------------------------------------
Reference Criteria
-----------------------------------------------------------------------------------------------------------------------------------
General Servicing Considerations
----------------------- --------------------------
1122(d)(1)(i) Policies and procedures are instituted to monitor any performance or other X
triggers and events of default in accordance with the transaction agreements.
----------------------- --------------------------
1122(d)(1)(ii) If any material servicing activities are outsourced to third parties, policies X
and procedures are instituted to monitor the third party's performance and
compliance with such servicing activities.
----------------------- --------------------------
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 X
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.
----------------------- --------------------------
Cash Collection and Administration
----------------------- --------------------------
1122(d)(2)(i) Payments on mortgage loans are deposited into the appropriate custodial bank X
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.
----------------------- --------------------------
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or to an investor X
are made only by authorized personnel.
----------------------- --------------------------
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash flows or X
distributions, and any interest or other fees charged for such advances, are
made, reviewed and approved as specified in the transaction agreements.
----------------------- --------------------------
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 X
1122(d)(2)(iv) transaction agreements.
----------------------- --------------------------
1122(d)(2)(v) Each custodial account is maintained at a federally insured depository X
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.
----------------------- --------------------------
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 X
securities related bank accounts, including custodial accounts and related
bank clearing accounts. These reconciliations are (A) mathematically accurate;
(B) prepared within 30 calendar days after the bank statement cutoff date, or
such other number of days specified in the transaction agreements; (C)
reviewed and approved by someone other than the person who prepared the
reconciliation; and (D) contain explanations for reconciling items. These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
-----------------------------------------------------------------------------------------------------------------------------------
Investor Remittances and Reporting
-----------------------------------------------------------------------------------------------------------------------------------
Exh. 17-1
-----------------------------------------------------------------------------------------------------------------------------------
Applicable Servicing
Servicing Criteria Criteria
-----------------------------------------------------------------------------------------------------------------------------------
Reference Criteria
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(3)(i) Reports to investors, including those to be filed with the Commission, are X
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.
----------------------- --------------------------
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in accordance with X
timeframes, distribution priority and other terms set forth in the transaction
agreements.
----------------------- --------------------------
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 X
1122(d)(3)(iii) transaction agreements.
----------------------- --------------------------
Amounts remitted to investors per the investor reports agree with cancelled X
1122(d)(3)(iv) checks, or other form of payment, or custodial bank statements.
----------------------- --------------------------
Pool Asset Administration
----------------------- --------------------------
1122(d)(4)(i) Collateral or security on mortgage loans is maintained as required by the X
transaction agreements or related mortgage loan documents.
----------------------- --------------------------
Mortgage loan and related documents are safeguarded as required by the X
1122(d)(4)(ii) transaction agreements
----------------------- --------------------------
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are made, reviewed X
and approved in accordance with any conditions or requirements in the
transaction agreements.
----------------------- --------------------------
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in accordance with the X
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.
----------------------- --------------------------
1122(d)(4)(v) The Servicer's records regarding the mortgage loans agree with the Servicer's X
records with respect to an obligor's unpaid principal balance.
----------------------- --------------------------
1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's mortgage loans X
(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.
----------------------- --------------------------
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance plans, modifications X
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.
----------------------- --------------------------
1122(d)(4)(viii) Records documenting collection efforts are maintained during the period a X
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).
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(ix) Adjustments to interest rates or rates of return for mortgage loans with X
variable rates are computed based on the related mortgage loan documents.
-----------------------------------------------------------------------------------------------------------------------------------
Exh. 17-2
-----------------------------------------------------------------------------------------------------------------------------------
Applicable Servicing
Servicing Criteria Criteria
-----------------------------------------------------------------------------------------------------------------------------------
Reference Criteria
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as escrow accounts): X
(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.
----------------------- --------------------------
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or insurance payments) are X
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.
----------------------- --------------------------
1122(d)(4)(xii) Any late payment penalties in connection with any payment to be made on behalf X
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.
----------------------- --------------------------
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 X
1122(d)(4)(xiii) days specified in the transaction agreements.
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1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are recognized and X
recorded in accordance with the transaction agreements.
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Any external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth in the
1122(d)(4)(xv) transaction agreements.
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[GREENPOINT MORTGAGE FUNDING, INC.]
[NAME OF SUBSERVICER]
Date:___________________________________
By:_____________________________________
Name:
Title:
Xxx. 00-0
EXHIBIT 18
ADDITIONAL DISCLOSURE NOTIFICATION
[__________[
as [Securities Administrator and Master Servicer]
[__________]
[__________]
Fax: [__________]
E-mail: [__________]
Attn: [__________]
Re: **Additional Form [ ] Disclosure**Required
Ladies and Gentlemen:
In accordance with Section [11.19(d)][11.19(e)][11.19(f)] of the
Fifth Amended and Restated Mortgage Loan Sale and Servicing Agreement, dated
as of June 1, 2006, as amended by the Assignment, Assumption and Recognition
Agreement dated as of [_____], 20[_] among [__________], as Depositor,
GreenPoint Mortgage Funding, Inc., [__________], as Master Servicer, and
[__________] as Trustee. The Undersigned hereby notifies you that certain
events have come to our attention that [will][may] need to be disclosed on
Form [ ].
Description of Additional Form [ ] Disclosure:
List of any attachments hereto to be included in the Additional Form [ ]
Disclosure:
Any inquiries related to this notification should be directed to [
], phone number: [ ]; email address: [ ].
[NAME OF PARTY]
as [role]
By: __________________________________
Name:
Title:
Xxx. 00-0
