GOLDMAN SACHS MORTGAGE COMPANY Purchaser and WELLS FARGO BANK, N.A. Company AMENDED AND RESTATED MASTER SELLER’S WARRANTIES AND SERVICING AGREEMENT Dated as of March 1, 2006
Execution
Copy
[Conventional/FHA/VA/RHS]
______________________________________
XXXXXXX
XXXXX MORTGAGE COMPANY
Purchaser
and
XXXXX
FARGO BANK, N.A.
Company
___________________________________________________
AMENDED
AND RESTATED
MASTER
SELLER’S WARRANTIES AND SERVICING AGREEMENT
Dated
as of March 1, 2006
___________________________________________________
TABLE
OF CONTENTS
|
ARTICLE
I
|
|||
|
DEFINITIONS
|
|||
|
ARTICLE
II
|
|||
|
CONVEYANCE
OF MORTGAGE LOANS; POSSESSION OF MORTGAGE
|
|||
|
FILES;
BOOKS AND RECORDS; DELIVERY OF DOCUMENTS
|
|||
|
Section
|
2.01
|
Conveyance
of Mortgage Loans; Possession of Mortgage Files;
|
|
|
Maintenance
of Servicing Files
|
18
|
||
|
Section
|
2.02
|
Books
and Records; Transfers of Mortgage Loans
|
19
|
|
Section
|
2.03
|
Delivery
of Documents
|
20
|
|
Section
|
2.04
|
Mortgage
Schedule
|
22
|
|
Section
|
2.05
|
Examination
of Mortgage Files
|
22
|
|
Section
|
2.06
|
Representations,
Warranties and Agreements of the Company
|
23
|
|
Section
|
2.07
|
Representation,
Warranties and Agreement of Purchaser
|
23
|
|
Section
|
2.08
|
Closing
|
24
|
|
Section
|
2.09
|
Closing
Documents
|
24
|
|
ARTICLE
III
|
|||
|
REPRESENTATIONS
AND WARRANTIES REMEDIES AND BREACH
|
|||
|
Section
|
3.01
|
Company
Representations and Warranties
|
25
|
|
Section
|
3.02
|
Representations
and Warranties Regarding Individual Mortgage Loans
|
28
|
|
Section
|
3.03
|
Repurchase
|
45
|
|
ARTICLE
IV
|
|||
|
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
|
|||
|
Section
|
4.01
|
Company
to Act as Servicer
|
47
|
|
Section
|
4.02
|
Liquidation
of Mortgage Loans
|
48
|
|
Section
|
4.03
|
Collection
of Mortgage Loan Payments
|
49
|
|
Section
|
4.04
|
Establishment
of and Deposits to Custodial Account
|
50
|
|
Section
|
4.05
|
Permitted
Withdrawals From Custodial Account
|
51
|
|
Section
|
4.06
|
Establishment
of and Deposits to Escrow Account
|
53
|
|
Section
|
4.07
|
Permitted
Withdrawals From Escrow Account
|
54
|
|
Section
|
4.08
|
Payment
of Taxes, Insurance and Other Charges
|
55
|
|
Section
|
4.09
|
Protection
of Accounts
|
55
|
|
Section
|
4.10
|
Maintenance
of Hazard Insurance
|
55
|
-i-
|
Section
|
4.11
|
Maintenance
of Mortgage Impairment Insurance
|
57
|
|
Section
|
4.12
|
Maintenance
of Fidelity Bond and Errors and Omissions Insurance
|
57
|
|
Section
|
4.13
|
Inspections
|
58
|
|
Section
|
4.14
|
Restoration
of Mortgaged Property
|
58
|
|
Section
|
4.15
|
Claims
|
59
|
|
Section
|
4.16
|
Title,
Management and Disposition of REO Property
|
59
|
|
Section
|
4.17
|
Real
Estate Owned Reports
|
60
|
|
Section
|
4.18
|
Liquidation
Reports
|
60
|
|
Section
|
4.19
|
Reports
of Foreclosures and Abandonments of Mortgaged Property
|
61
|
|
Section
|
4.20
|
Fair
Credit Reporting Act
|
61
|
|
Section
|
4.21
|
Maintenance
of Primary Mortgage Insurance Policy; Claims
|
61
|
|
ARTICLE
V
|
|||
|
PAYMENTS
TO PURCHASER
|
|||
|
Section
|
5.01
|
Remittances
|
67
|
|
Section
|
5.02
|
Statements
to Purchaser
|
68
|
|
Section
|
5.03
|
Monthly
Advances by Company
|
68
|
|
ARTICLE
VI
|
|||
|
GENERAL
SERVICING PROCEDURES
|
|||
|
Section
|
6.01
|
Transfers
of Mortgaged Property
|
69
|
|
Section
|
6.02
|
Satisfaction
of Mortgages and Release of Mortgage Files
|
70
|
|
Section
|
6.03
|
Servicing
Compensation
|
70
|
|
Section
|
6.04
|
Annual
Statement as to Compliance
|
70
|
|
Section
|
6.05
|
Annual
Independent Public Accountants’ Servicing Report
|
71
|
|
Section
|
6.06
|
Right
to Examine Company Records
|
71
|
|
Section
|
6.07
|
Compliance
with REMIC Provisions
|
74
|
|
Section
|
6.08
|
Compliance
with Xxxxx-Xxxxx-Xxxxxx Act of 1999
|
74
|
|
ARTICLE
VII
|
|||
|
COMPANY
TO COOPERATE
|
|||
|
Section
|
7.01
|
Provision
of Information
|
74
|
|
Section
|
7.02
|
Financial
Statements; Servicing Facility
|
74
|
|
ARTICLE
VIII
|
|||
|
THE
COMPANY
|
|||
|
Section
|
8.01
|
Indemnification;
Third Party Claims
|
75
|
|
Section
|
8.02
|
Merger
or Consolidation of the Company
|
75
|
-ii-
|
Section
|
8.03
|
Limitation
on Liability of Company and Others
|
76
|
|
Section
|
8.04
|
Limitation
on Resignation and Assignment by Company
|
76
|
|
ARTICLE
IX
|
|||
|
SECURITIZATION
TRANSACTION
|
|||
|
Section
|
9.01
|
Removal
of Mortgage Loans from Inclusion Under this Agreement Upon
a
|
|
|
Securitization
Transaction
|
77
|
||
|
ARTICLE
X
|
|||
|
DEFAULT
|
|||
|
Section
|
10.01
|
Events
of Default
|
89
|
|
Section
|
10.02
|
Waiver
of Defaults
|
91
|
|
ARTICLE
XI
|
|||
|
TERMINATION
|
|||
|
Section
|
11.01
|
Termination
|
91
|
|
Section
|
11.02
|
Termination
Without Cause
|
91
|
|
Section
|
11.03
|
Termination
With Cause
|
92
|
|
ARTICLE
XII
|
|||
|
MISCELLANEOUS
PROVISIONS
|
|||
|
Section
|
12.01
|
Successor
to Company
|
92
|
|
Section
|
12.02
|
Amendment
|
93
|
|
Section
|
12.03
|
Governing
Law
|
93
|
|
Section
|
12.04
|
Duration
of Agreement
|
93
|
|
Section
|
12.05
|
Notices
|
93
|
|
Section
|
12.06
|
Severability
of Provisions
|
94
|
|
Section
|
12.07
|
Relationship
of Parties
|
95
|
|
Section
|
12.08
|
Execution;
Successors and Assigns
|
95
|
|
Section
|
12.09
|
Recordation
of Assignments of Mortgage
|
95
|
|
Section
|
12.10
|
Assignment
by Purchaser
|
95
|
|
Section
|
12.11
|
Solicitation
of Mortgagor
|
96
|
|
Section
|
12.12
|
General
Interpretive Principles
|
96
|
-iii-
|
EXHIBITS
|
|
|
Exhibit
A
|
Mortgage
Loan Schedule
|
|
Exhibit
B
|
Contents
of Each Mortgage File
|
|
Exhibit
C
|
Form
of Custodial Agreement
|
|
Exhibit
D
|
Form
of Opinion of Counsel
|
|
Exhibit
E
|
Items
to Be Included in Monthly Remittance Advice
|
|
Exhibit
F
|
Forms
of Assignment, Assumption and Recognition Agreement
|
|
Exhibit
G
|
Form
of Seller’s Officer’s Certificate
|
|
Exhibit
H
|
Process
Guidelines
|
|
Exhibit
I
|
Form
of Freddie Mac Amendment
|
|
Exhibit
J
|
Form
of Xxxxxx Xxx Assignment, Assumption and Recognition
Agreement
|
|
Exhibit
K
|
Form
of Assignment and Conveyance Agreement
|
|
Exhibit
L
|
Form
of Indemnification Agreement
|
|
Exhibit
M
|
Servicing
Criteria to be addressed in Assessment of Compliance
|
|
Exhibit
N
|
Sarbanes
Certificate
|
-iv-
This
is an Amended and Restated Master Seller’s Warranties and Servicing Agreement
for various residential first and second lien mortgage loans, dated and
effective as of March 1, 2006 and is executed between Xxxxxxx Xxxxx Mortgage
Company, as purchaser (the “Purchaser”), and Xxxxx Fargo Bank, N.A., as seller
and servicer (the “Company”).
WITNESSETH:
WHEREAS,
the Purchaser and the Company are parties to that certain Master Seller’s
Warranties and Servicing Agreement, dated October 1, 2004 (the “Master
Agreement”), between the Purchaser and the Company;
WHEREAS,
the Company and the Purchaser wish to amend certain provisions of the Master
Agreement as set forth in this Amended and Restated Master Seller’s Warranties
and Servicing Agreement;
WHEREAS,
the Purchaser has agreed to purchase from the Company and the Company has agreed
to sell to the Purchaser from time to time certain one- to four-family, first
and second lien, fixed-rate and adjustable-rate residential mortgage loans
which
have an aggregate outstanding principal balance as indicated on the related
Mortgage Loan Schedule (as defined below) which is attached as Exhibit A to
the
related Assignment and Conveyance Agreement (as defined below) and as set forth
in the related Commitment Letter (as defined below);
WHEREAS,
each of the Mortgage Loans (as defined below) is secured by a mortgage, deed
of
trust or other security instrument creating a first lien on a one- to
four-family residential dwelling located in the jurisdiction indicated on the
related Mortgage Loan Schedule; and
WHEREAS,
the Purchaser and the Company wish to prescribe the manner of purchase of the
Mortgage Loans and the conveyance, servicing and control of the Mortgage Loans,
including the servicing and control of the Mortgage Loans previously purchased
from the Company by the Purchaser pursuant to the Master Agreement;
NOW,
THEREFORE, in consideration of the mutual agreements hereinafter set forth,
and
for other good and valuable consideration, the receipt and adequacy of which
is
hereby acknowledged, the Purchaser and the Company agree as follows:
-1-
ARTICLE
I
DEFINITIONS
Whenever
used herein, the following words and phrases, unless the content otherwise
requires, shall have the following meanings:
Accepted
Servicing Practices:
With respect to any Mortgage Loan, those customary mortgage servicing practices
of prudent mortgage lending institutions which service mortgage loans of the
same type as such Mortgage Loan in the jurisdiction where the related Mortgaged
Property is located.
Adjustable
Rate Mortgage Loan:
An adjustable rate Mortgage Loan purchased pursuant to this Agreement.
Agency:
Xxxxxx Xxx, Freddie Mac, GNMA or any of them as applicable.
Agency
Transfer:
Any sale or transfer of some or all of the Mortgage Loans by the Purchaser
to an
Agency which sale or transfer is not a Securitization Transaction or Whole
Loan
Transfer.
Agreement:
This Amended and Restated Master Seller’s Warranties and Servicing Agreement and
all exhibits hereto, amendments hereof and supplements hereto.
ALTA:
The American Land Title Association or any successor thereto.
Applicable
Law:
All provisions of statutes, rules and regulations, interpretations and orders
of
governmental bodies or regulatory agencies applicable to a Person, and all
orders and decrees of all courts and arbitrators in proceedings or actions
in
which the Person in question is a party.
Appraised
Value:
With respect to any Mortgage Loan, the lesser of (i) the value set forth on
the
appraisal made in connection with the origination of the related Mortgage Loan
as the value of the related Mortgage Property, or (ii) the purchase price paid
for the Mortgage Property; provided,
however,
in the case of a refinanced Mortgage Loan, such value shall be based solely
on
the appraisal made in connection with the refinance of such Mortgage Loan.
Assignment
and Conveyance Agreement:
An assignment and conveyance agreement with respect to the Mortgage Loans
purchased on a Closing Date in the form annexed hereto as Exhibit K.
Assignment
of Mortgage or Assignment:
An assignment of the Mortgage, notice of transfer or equivalent instrument
in
recordable form, sufficient under the laws of the jurisdiction wherein the
related Mortgaged Property is located to reflect the sale of the Mortgage to
the
Purchaser or its designated assignee, or if the related Mortgage has been
recorded in the name of MERS or its designee, such actions as are necessary
to
cause the Purchaser to be shown as the owner of the related Mortgage on the
records of MERS for
-2-
purposes
of the system of recording transfers of beneficial ownership of mortgages
maintained by MERS..
Assignment
of Mortgage Note and Pledge Agreement:
With respect to a Cooperative Loan, an assignment of the Mortgage Note and
Pledge Agreement.
Assignment
of Proprietary Lease:
With respect to a Cooperative Loan, an assignment of the Proprietary Lease
sufficient under the laws of the jurisdiction wherein the related Cooperative
Apartment is located to effect the assignment of such Proprietary Lease.
Business
Day:
Any day other than (i) a Saturday or Sunday, or (ii) a day on which banking
and
savings and loan institutions in the states where the parties hereto are located
are authorized or obligated by law or executive order to be closed.
Buydown
Account:
An account maintained by the Company specifically to hold all Buydown Funds
to
be applied to individual Buydown Loans.
Buydown
Agreement:
An agreement between the Company and a Mortgagor, or an agreement among the
Company, a Mortgagor and a seller of a Mortgaged Property or a third party
with
respect to a Mortgage Loan which provides for the application of Buydown Funds.
Buydown
Funds:
In respect of any Buydown Mortgage Loan, any amount contributed by the seller
of
a Mortgaged Property subject to a Buydown Mortgage Loan, the buyer of such
property, the Company or any other source, plus interest earned thereon, in
order to enable the Mortgagor to reduce the payments required to be made from
the mortgagor’s funds in the early years of a Mortgage Loan.
Buydown
Mortgage Loan:
Any Mortgage Loan in respect of which, pursuant to a Buydown Agreement, (i)
the
Mortgagor pays less than the full monthly payments specified in the Mortgage
Note for a specified period, and (ii) the difference between the payments
required under such Buydown Agreement and the Mortgage Note is provided from
Buydown Funds.
Buydown
Period:
The period of time when a Buydown Agreement is in effect with respect to a
related Buydown Mortgage Loan.
Closing
Date:
Each date that the Purchaser purchases Mortgage Loans (including without
limitation, all rights, titles, interests, obligations and benefits associated
therewith) from the Company hereunder.
Code:
The Internal Revenue Code of 1986, as it may be amended from time to time or
any
successor statute thereto, and applicable U.S. Department of the Treasury
regulations issued pursuant thereto.
Combined
Loan-to-Value Ratio or CLTV:
As to any Second Lien Mortgage Loan at any date of determination, the ratio
on
such date of the principal balance of such
-3-
Mortgage
Loan plus the principal balance of any Superior Lien, to the Appraised Value
of
the related Mortgaged Property.
Commission:
The United States Securities and Exchange Commission.
Commitment
Letter:
With respect to any pool of Mortgage Loans purchased and sold on any Closing
Date, the letter agreement between the Purchaser and the Company (including
any
exhibits, schedules and attachments thereto), setting forth the terms and
conditions of such transaction and describing the Mortgage Loans to be purchased
by the Purchaser on such Closing Date. A Commitment Letter may relate to more
than one pool of Mortgage Loans to be purchased on a specified Closing Date.
Company:
Xxxxx Fargo Bank, N.A., or its successor in interest or assigns, or any
successor to the Company under this Agreement appointed as herein provided.
Company
Certification:
The certification delivered by the Company in a form substantially similar
to
Exhibit N of this Agreement.
Company
Employees:
The meaning assigned to such term in Section 4.12.
Company
Information:
As defined in Section 9.01(g)(i)(A) .
Condemnation
Proceeds:
All awards or settlements in respect of a Mortgaged Property, whether permanent
or temporary, partial or entire, by exercise of the power of eminent domain
or
condemnation, to the extent not required to be released to a Mortgagor in
accordance with the terms of the related Mortgage Loan Documents.
Conventional
Mortgage Loan:
Any Mortgage Loan that is not a FHA Mortgage Loan, RHS Mortgage Loan and VA
Mortgage Loan.
Cooperative:
The entity that holds title (fee or an acceptable leasehold estate) to all
of
the real property that the related Project comprises, including the land,
separate dwelling units and all common areas.
Cooperative
Apartment:
The specific dwelling unit relating to a Cooperative Loan.
Cooperative
Lien Search:
A search for (a) federal tax liens, mechanics’ liens, lis pendens, judgments of
record or otherwise against (i) the Cooperative, (ii) the seller of the
Cooperative Apartment and (iii) the Company, if the Cooperative Loan is a
refinanced Mortgage Loan, (b) filings of financing statements and (c) the deed
of the Project into the Cooperative.
Cooperative
Loan:
A Mortgage Loan that is secured by Cooperative Shares and a Proprietary Lease
granting exclusive rights to occupy the related Cooperative Apartment.
Cooperative
Shares:
The shares of stock issued by a Cooperative, owned by the Mortgagor, and
allocated to a Cooperative Apartment.
-4-
Covered
Loan:
A Mortgage Loan categorized as “Covered” pursuant to the Standard & Poor’s
Glossary for File Format for LEVELS® Version 5.6, Appendix E, as revised from
time to time and in effect on each related Closing Date (excluding New Jersey
“Covered Home Loans” as that term is defined in clause (1) of the definition of
that term in the New Jersey Home Ownership Security Act of 2002).
Custodial
Account:
The separate account or accounts created and maintained pursuant to Section
4.04.
Custodial
Agreement:
The agreement governing the retention of the originals of each Mortgage Note,
Mortgage, Assignment of Mortgage and other Mortgage Loan Documents, a form
of
which is annexed hereto as Exhibit C.
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 first day of the month in which the respective Closing Date
occurs.
Depositor:
The depositor, as such term is defined in Regulation AB, with respect to any
Securitization Transaction.
Determination
Date:
The Business Day preceding the Remittance Date.
Due
Date:
The day of the month on which the Monthly Payment is due on a Mortgage Loan,
exclusive of any grace period.
Due
Period:
With respect to each Remittance Date, the period commencing on the second day
of
the month preceding the month in which such Remittance Date occurs and ending
on
(and including) the first day of the month in which such Remittance Date occurs.
Errors
and Omissions Insurance Policy:
An errors and omissions insurance policy to be maintained by the Company
pursuant to Section 4.12.
Escrow
Account:
The separate account or accounts created and maintained pursuant to Section
4.06.
Escrow
Payments:
With respect to any Mortgage Loan, the amounts constituting ground rents, taxes,
assessments, water rates, sewer rents, municipal charges, mortgage insurance
premiums, fire and hazard insurance premiums, condominium charges, and any
other
payments required to be escrowed by the Mortgagor with the mortgagee pursuant
to
the Mortgage or any other related document.
Event
of Default:
Any one of the conditions or circumstances enumerated in Section 10.01.
-5-
Exchange
Act:
The Securities Exchange Act of 1934, as amended.
Fair
Credit Reporting Act:
The Fair Credit Reporting Act of 1970, as amended. Xxxxxx
Xxx:
The Federal National Mortgage Association, and its successors. FDIC:
The Federal Deposit Insurance Corporation, and its successors. FHA:
Federal Housing Administration, and its successors. FHA
Mortgage Loan:
A Mortgage Loan that has a MIC issued by HUD/FHA.
Fidelity
Bond:
A fidelity bond to be maintained by the Company pursuant to Section 4.12.
First
Remittance Date:
With respect to each Closing Date, the Remittance Date occurring in the calendar
month immediately following the month in which such Closing Date occurs.
Fixed
Rate Mortgage Loan:
A fixed rate mortgage loan purchased pursuant to this Agreement.
Freddie
Mac:
The Federal Home Loan Mortgage Corporation, and its successors.
GNMA:
The Government National Mortgage Association, and its successors.
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
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 classified as (a) a “high cost” loan under the Home Ownership
and Equity Protection Act of 1994, (b) a “high cost home,” “threshold,”
“covered,” (excluding New Jersey “Covered Home Loans” as that term is defined in
clause (1) of the definition of that term in the New Jersey Home Ownership
Security Act of 2002), “high risk home,” “predatory” or similar loan under any
other applicable state, federal or local law or (c) a Mortgage Loan categorized
as “High Cost” pursuant to the Standard & Poor’s Glossary for File Format
for LEVELS® Version 5.6, Appendix E, as revised from time to time and in effect
on each related Closing Date.
Home
Loan:
A Mortgage Loan categorized as “Home Loan” pursuant to the Standard & Poor’s
Glossary for File Format for LEVELS® Version 5.6, Appendix E, as revised from
time to time and in effect on each related Closing Date.
HUD:
The United States Department of Housing and Urban Development, and its
successors.
-6-
Index:
With respect to each Adjustable Rate Mortgage Loan, the index identified on
the
Mortgage Loan Schedule and set forth in the related Mortgage Note for the
purpose of calculating the interest thereon.
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.
Insurance
Proceeds:
Proceeds of any FHA, VA or RHS mortgage insurance or guarantee, title policy,
hazard policy or other insurance policy covering a Mortgage Loan, if any, to
the
extent such proceeds are not to be applied to the restoration of the related
Mortgaged Property or released to the Mortgagor in accordance with the
procedures that the Company would follow in servicing mortgage loans held for
its own account.
Interest
Only Mortgage Loan:
A Mortgage Loan for which an interest-only payment feature is allowed during
the
interest-only period set forth in the related Mortgage Note.
Interest
Rate Adjustment Date:
With respect to each Adjustable Rate Mortgage Loan, the date specified in the
related Mortgage Note, on which the Mortgage Interest Rate is adjusted.
Investor:
With respect to each MERS Mortgage Loan, the Person named on the MERS System
as
the investor pursuant to the MERS Procedures Manual.
Lender
Paid Mortgage Insurance Policy or LPMI Policy:
A PMI Policy for which the Company pays all premiums from its own funds, without
reimbursement therefor.
Letter
of Credit:
With respect to a Pledged Asset Mortgage Loan, a letter of credit issued by
the
Pledge Holder which may be drawn on by the Company in the event that the related
Pledged Asset Mortgage Loan continues in default for ninety (90) days.
LGC:
Loan
Guaranty Certificate issued by the VA as a guarantee that the federal government
will repay to the lender a specified percentage of the loan balance in the
event
of the borrower’s default.
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 terms 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 Mortgage Loan Schedule.
Liquidation
Proceeds:
Cash (other than Insurance Proceeds or Condemnation Proceeds) received in
connection with the liquidation of a defaulted Mortgage Loan, whether through
the sale or assignment of such Mortgage Loan, trustee’s sale, foreclosure sale,
sale of REO Property, or otherwise, or the sale of the related Mortgaged
Property if the Mortgaged Property is acquired in satisfaction of the Mortgage
Loan.
-7-
Loan
Note Guarantee:
The document issued by RHS as a guarantee that the federal government will
repay
to the lender the specified percentage of the loan balance in the event of
the
borrower’s default.
Loan-to-Value
Ratio:
With respect to any Mortgage Loan, the ratio of the original loan amount of
the
Mortgage Loan at its origination or refinancing, as applicable, to the Appraised
Value of the Mortgaged Property.
LPMI
Proceeds:
Proceeds of any Lender Paid Mortgage Insurance Policy.
MERS:
Mortgage Electronic Registration Systems, Inc., a corporation organized and
existing under the laws of the State of Delaware, or any successor thereto.
MERS
Mortgage Loan:
Any Mortgage Loan registered with MERS on the MERS System.
MERS
Procedure Manual:
The MERS Procedure Manual, as it may be amended, supplemented or otherwise
modified from time to time.
MERS
System:
The system of recording transfers of mortgages electronically maintained by
MERS.
MERS
Report:
The report from the MERS System listing MERS Designated Mortgage Loans and
other
information.
MIC:
Mortgage Insurance Certificate issued by HUD/FHA as evidence that a mortgage
has
been insured and that a contract of mortgage insurance exists between HUD/FHA
and the lender.
MIN:
The Mortgage Identification Number used to identify mortgage loans registered
under MERS.
MOM
Loan:
Any Mortgage Loan as to which MERS is acting as mortgagee, solely as nominee
for
the originator of such Mortgage Loan and its successors and assigns.
Monthly
Advance:
The portion of each Monthly Payment that is delinquent with respect to each
Mortgage Loan at the close of business on the Determination Date required to
be
advanced by the Company pursuant to Section 5.03 on the Business Day immediately
preceding the Remittance Date of the related month.
Monthly
Payment:
The scheduled monthly payment of principal and interest on a Mortgage Loan
or in
the case of an Interest Only Mortgage Loan, payments of (i) interest, or (ii)
principal and interest, as applicable, on a Mortgage Loan.
Monthly
Remittance Advice:
The meaning assigned to such term in Section 5.02.
-8-
Mortgage:
The mortgage, deed of trust or other instrument and riders thereto securing
a
Mortgage Note, which creates a first or second lien on an unsubordinated estate
in fee simple in real property securing the Mortgage Note, or the Pledge
Agreement securing the Mortgage Note for a Cooperative Loan.
Mortgage
File:
The items pertaining to a particular Mortgage Loan referred to in Exhibit B
annexed hereto, and any additional documents required to be added to the
Mortgage File pursuant to this Agreement.
Mortgage
Interest Rate:
The annual rate of interest borne on a Mortgage Note in accordance with the
provisions of the Mortgage Note.
Mortgage
Interest Rate Cap:
With respect to an Adjustable Rate Mortgage Loan, the limit on each Mortgage
Interest Rate adjustment as set forth in the related Mortgage Note.
Mortgage
Loan:
An individual Mortgage Loan which is the subject of this Agreement, each
Mortgage Loan originally sold and subject to this Agreement being identified
on
the 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 a Mortgage Loan, the original related Mortgage Note with
applicable addenda and riders, the original related security instrument and
the
originals of any required addenda and riders, the original related Assignment
and any original intervening related Assignments, the original related title
insurance policy, and with respect to the Non-Conventional Mortgage Loans,
the
related MIC or LGC or Loan Note Guarantee, as applicable, and for each Pledged
Asset Mortgage Loan, the original advice of such Letter of Credit executed
by
the Pledge Holder and the Company’s executed notice of transfer (Exhibit A to
the Letter of Credit) of beneficiary of such Letter of Credit to the Purchaser
or its designee.
Mortgage
Loan Remittance Rate:
With respect to each Mortgage Loan, the annual rate of interest remitted to
the
Purchaser, which shall be equal to the Mortgage Interest Rate minus the
Servicing Fee Rate.
Mortgage
Loan Schedule: A
schedule of Mortgage Loans prepared and identified on each Closing Date and
attached as Schedule A to the Assignment and Conveyance Agreement, such schedule
setting forth the following information with respect to each Mortgage Loan:
(1)
the Company’s Mortgage Loan number; (2) the address, city, state and zip code of
the Mortgaged Property; (3) a code indicating whether the Mortgaged Property
is
a single family residence, two-family residence, three-family residence,
four-family residence or planned unit development; (4) the purpose of the
Mortgage Loan; (5) the current Mortgage Interest Rate; (6) the Mortgage Loan
Remittance Rate; (7) the Servicing Fee Rate; (8) the current Monthly Payment;
(9) the original term to maturity;
-9-
(10)
the scheduled maturity date (and, if different, the stated maturity date
indicated on the Mortgage Note on its date of origination); (11) the principal
balance of the Mortgage Loan as of the Cut-off Date after deduction of payments
of principal due on or before the Cut-off Date whether or not collected; (12)
the Loan-to-Value Ratio; (13) the Due Date of the Mortgage Loan; (14) a code
indicating whether the Mortgage is insured by FHA or guaranteed by VA; (15)
a
code indicating whether the Mortgagor or the Mortgaged Property is the subject
of a bankruptcy case; (16) the amount of any delinquencies and the due date
of
any delinquent payments; (17) the CPI twelve month pay string; (18) a code
indicating whether the Mortgage Loan is a MERS Mortgage Loan; (19) a code
indicating whether the Mortgage Loan has a Primary Mortgage Insurance Policy;
and (20) with respect to each Adjustable-Rate Mortgage Loan, (a) the first
Interest Rate Adjustment Date and the adjustment date frequency, (b) the Gross
Margin, (c) the maximum Mortgage Interest Rate under the terms of the Mortgage
Note, (d) the minimum Mortgage Interest Rate under the terms of the Mortgage
Note, (e) the periodic rate cap; (f) the first Interest Rate Adjustment Date
immediately following the Cut-off Date, and (g) the index on which the Mortgage
Interest Rate is based.
Mortgage
Note:
The note or other evidence of the indebtedness of a Mortgagor secured by a
Mortgage and riders thereto.
Mortgaged
Property:
The real property (or with respect to a Cooperative Loan, the related
Cooperative Apartment) securing repayment of the debt evidenced by a Mortgage
Note.
Mortgagor:
The obligor on a Mortgage Note.
Non-Assigned
Letter of Credit:
A Letter of Credit in which the named beneficiary is the Company.
Non-Conventional
Mortgage Loans:
The FHA Mortgage Loans, RHS Mortgage Loans and VA Mortgage Loans.
Officer’s
Certificate:
A certificate signed by the Chairman of the Board, the Vice Chairman of the
Board, the President, a Vice President, an Assistant Vice President, the
Treasurer, the Secretary or one of the Assistant Treasurers or Assistant
Secretaries of the Company, and delivered to the Purchaser as required by this
Agreement.
Opinion
of Counsel:
A written opinion of counsel, who may be an employee of the Company, reasonably
acceptable to the Purchaser.
Permitted
Investments:
Investments that mature, unless payable on demand, not later than the Business
Day preceding the related Remittance Date; provided
that such investments shall only consist of the following:
(i)
direct obligations of, or obligations fully guaranteed as to principal and
interest by, the United States or any agency or instrumentality thereof,
provided such obligations are backed by the full faith and credit of the United
States;
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(ii)
repurchase obligations (the collateral for which is held by a third party)
with
respect to any security described in clause (i) above, provided that the
long-term unsecured obligations of the party agreeing to repurchase such
obligations are at the time rated by each Rating Agency in one of its two
highest rating categories;
(iii)
certificates of deposit, time deposits and bankers’ acceptances of any bank or
trust company incorporated under the laws of the United States or any state,
provided that the long-term unsecured debt obligations of such bank or trust
company (or, in the case of the principal depository institution of a depository
institution holding company, the long-term unsecured debt obligations of the
depository institution holding company) at the date of acquisition thereof
have
been rated by each Rating Agency in one of its two highest rating categories;
(iv)
commercial paper (having original maturities of not more than 365 days) of
any
corporation incorporated under the laws of the United States or any state
thereof which on the date of acquisition has been rated by each Rating Agency
in
its highest rating category; and
(v)
any other demand, money market or time deposit account or obligation, or
interest-bearing or other security or investment, acceptable to the Purchaser
(such acceptance evidenced in writing);
provided further
that “Permitted Investments” shall not include any instrument described
hereunder which evidences either the right to receive (a) only interest with
respect to the obligations underlying such instrument or (b) both principal
and
interest payments derived from obligations underlying such instrument and the
interest and principal payments with respect to such instrument provide a yield
to maturity at par greater than 120% of the yield to maturity at par of the
underlying obligations.”
Periodic
Rate Cap:
The provision of each Mortgage Note related to an Adjustable Rate Mortgage
Loan
which provides for an absolute maximum amount by which the Mortgage Interest
Rate therein may increase or decrease on an Interest Rate Adjustment Date above
or below the Mortgage Interest Rate previously in effect. The Periodic Rate
Cap
for each Adjustable Rate Mortgage Loan is the rate set forth on the Mortgage
Loan Schedule.
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. The Periodic Rate Floor
for each Adjustable Rate Mortgage Loan is the rate set forth on the Mortgage
Loan Schedule.
Person:
Any individual, corporation, partnership, limited liability company, joint
venture, association, joint-stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof.
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Pledge
Agreement:
With respect to a Cooperative Loan, the specific agreement creating a first
lien
on and pledge of the Cooperative Shares and the appurtenant Proprietary Lease.
Pledge
Holder:
The entity which issued a Letter of Credit.
Pledge
Instruments:
With respect to a Cooperative Loan, the Stock Power, the Assignment of the
Proprietary Lease and the Assignment of the Mortgage Note and Pledge Agreement.
Pledged
Asset Mortgage Loan:
A Mortgage Loan as to which, at the time of origination, a Letter of Credit
was
issued in favor of the initial holder of such Mortgage Loan.
Primary
Mortgage Insurance Policy or PMI Policy:
Each policy of primary mortgage insurance represented to be in effect pursuant
to Section 3.02(xxxiv), or any replacement policy therefor obtained by the
Company pursuant to Section 4.21.
Prime
Rate:
The prime rate announced to be in effect from time to time, as published as
the
average rate in The Wall Street Journal.
Principal
Balance:
As to each Mortgage Loan, (i) the actual outstanding principal balance of the
Mortgage Loan at the Cut-off Date after giving effect to payments of principal
due on or before such date, minus (ii) all amounts attributable to principal
collected from or on behalf of the Mortgagor, including the principal portion
of
Liquidation Proceeds, Condemnation Proceeds, and Insurance Proceeds.
Principal
Prepayment:
Any payment or other recovery of principal on a Mortgage Loan, including amounts
received in connection with repurchases of Mortgage Loans by the Company, as
seller, in accordance with the terms of this Agreement, which is received in
advance of its scheduled Due Date, including any prepayment penalty or premium
thereon and which is not accompanied by an amount of interest representing
scheduled interest due on any date or dates in any month or months subsequent
to
the month of prepayment.
Principal
Prepayment Period:
With respect to each Remittance Date, the period commencing on the first day
of
the month preceding the month in which such Remittance Date occurs, and ending
on the last day of such month.
Project:
With respect to a Cooperative Loan, all real property owned by the related
Cooperative including the land, separate dwelling units and all common areas.
Proprietary
Lease:
With respect to a Cooperative Loan, a lease on a Cooperative Apartment
evidencing the possessory interest of the Mortgagor in such Cooperative
Apartment.
Purchase
Price:
The purchase price specified in the Commitment Letter.
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Purchaser:
Xxxxxxx Xxxxx Mortgage Company, or its successor in interest or any successor
to
the Purchaser under this Agreement as herein provided.
Qualification
Defect:
With respect to a Mortgage Loan, (a) a defective document in the Mortgage File,
(b) the absence of a document in the Mortgage File, or (c) the breach of any
representation, warranty or covenant with respect to the Mortgage Loan made
by
the Company, but, in each case, only if the affected Mortgage Loan would cease
to qualify as a “qualified mortgage” for purposes of the REMIC Provisions.
Qualified
Correspondent:
Any Person from which the Company purchased Mortgage Loans, provided that the
following conditions are satisfied: (i) such Mortgage Loans were originated
pursuant to an agreement between the Company and such Person that contemplated
that such person would underwrite mortgage loans from time to time, for sale
to
the Company, in accordance with underwriting guidelines designated by the
Company (“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 Company within 180
days after origination; (iii) either (x) the Designated Guidelines were, at
the
time such Mortgage Loans were originated, used by the Company in origination
of
mortgage loans of the same type as the Mortgage Loans for the Company’s own
account or (y) the Designated Guidelines were, at the time such Mortgage Loans
were underwritten, designated by the Company on a consistent basis for use
by
lenders in originating mortgage loans to be purchased by the Company; and (iv)
the Company employed, at the time such Mortgage Loans were acquired by the
Company, pre-purchased or post-purchased quality assurance procedures (which
may
involve, among other things, review of a sample or 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 Company.
Qualified
Depository:
A federal or state chartered depository institution, the deposits in which
are
insured by the FDIC to the applicable limits and the short-term unsecured debt
obligations of which (or, in the case of a depository institution that is a
subsidiary of a holding company, the short-term unsecured debt obligations
of
such holding company) are rated A-1 by Standard & Poor’s Ratings Services
and Prime-1 by Xxxxx’x Investors Service, Inc. (or a comparable rating if
another rating agency is specified by the Purchaser by written notice to the
Company) at the time any deposits are held on deposit therein; provided,
however,
that in the event any of the Mortgage Loans are subject to a Pass Through
Transfer, the Company agrees that the holding company or other entity which
maintains any accounts subject to this definition, shall satisfy the rating
requirements established by any Rating Agency which rates securities issued
as
part of the Securitization Transaction.
Qualified
Insurer:
A mortgage guaranty insurance company duly authorized and licensed where
required by law to transact mortgage guaranty insurance business and approved
as
an insurer by Xxxxxx Xxx.
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Rating
Agency:
Xxxxx’x Investors Service, Inc., Standard & Poor’s Ratings Services, a
division of The XxXxxx-Xxxx Companies, Fitch, Inc. (doing business as Fitch
Ratings), or any other nationally recognized statistical credit rating agency
rating any security issued in connection with any Securitization Transaction.
Recognition
Agreement:
An agreement whereby a Cooperative and a lender with respect to a Cooperative
Loan (i) acknowledge that such lender may make, or intends to make, such
Cooperative Loan, and (ii) make certain agreements with respect to such
Cooperative Loan.
Reconstitution:
Any Securitization Transaction or Whole Loan Transfer.
Reconstitution
Agreement:
The agreement or agreements entered into by the Company and the Purchaser and/or
certain third parties on the Reconstitution Date or Dates with respect to any
or
all of the Mortgage Loans serviced hereunder, in connection with a Whole Loan
Transfer or Securitization Transaction.
Reconstitution
Date:
The date on which any or all of the Mortgage Loans serviced under this Agreement
may be removed from this Agreement and reconstituted as part of a Securitization
Transaction, Agency Sale or Whole Loan Transfer pursuant to Section 9.01 hereof.
The Reconstitution Date shall be such date which the Purchaser shall designate.
Regulation
AB:
Subpart 229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R. §§229.1100
-229.1123, as such may be amended from time to time, and subject to such
clarification and interpretation as have been provided by the Commission in
the
adopting release (Asset-Backed Securities, Securities Act Release No. 33-8518,
70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005) or by the staff of the Commission,
or
as may be provided by the Commission or its staff from time to time.
REMIC:
A “real estate mortgage investment conduit” within the meaning of Section 860D
of the Code.
REMIC
Provisions:
Provisions of the federal income tax law relating to a REMIC, which appear
at
Section 860A through 860G of Subchapter M of Chapter 1, Subtitle A of the Code,
and related provisions, and regulations, rulings or pronouncements promulgated
thereunder, as the foregoing may be in effect from time to time.
Remittance
Advice Date:
The 12th calendar day of each month or, if such 12th day is not a Business
Day,
the first Business Day immediately following such date.
Remittance
Date:
The 18th day (or if such 18th day is not a Business Day, the first Business
Day
immediately preceding such date) of any month, beginning with the First
Remittance Date.
REO
Disposition:
The final sale by the Company of any REO Property.
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REO
Disposition Proceeds:
All amounts received with respect to an REO Disposition pursuant to Section
4.16.
REO
Property:
A Mortgaged Property acquired by the Company on behalf of the Purchaser through
foreclosure or by deed in lieu of foreclosure, as described in Section 4.16.
Repurchase
Price:
Unless agreed otherwise by the Purchaser and the Company (including without
limitation as set forth in the Commitment Letter), a price equal to (i) the
Scheduled Principal Balance of the Mortgage Loan plus
(ii) interest on such Scheduled Principal Balance at the Mortgage Loan
Remittance Rate from the date on which interest has last been paid and
distributed to the Purchaser to the last day of the month of repurchase,
less
amounts received or advanced in respect of such repurchased Mortgage Loan which
are being held in the Custodial Account for distribution in the month of
repurchase, to the extent such amounts are actually paid to the Purchaser upon
the repurchase of the related Mortgage Loan.
RHS:
The Rural Housing Service of the Rural Development mission area, a department
of
the United States Department of Agriculture.
RHS
Mortgage Loan:
A Mortgage Loan that has a Loan Note Guarantee issued by RHS.
Scheduled
Principal Balance:
As to each Mortgage Loan, (i) the principal balance of the Mortgage Loan at
the
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 made in lieu thereof.
Second
Lien: With
respect to a Mortgaged Property, a lien of the mortgage, deed of trust or other
instrument securing a mortgage note which creates a second lien on the Mortgaged
Property.
Second
Lien Mortgage Loan:
A Mortgage Loan secured by the lien on the Mortgaged Property, subject to one
prior lien on such Mortgaged Property securing financing obtained by the related
Mortgagor.
Securities
Act:
The Securities Act of 1933, as amended.
Securitization
Transaction:
Any transaction involving either (a) a sale or other transfer of some or all
of
the Mortgage Loans directly or indirectly to an issuing entity in connection
with an issuance of publicly offered or privately placed, rated or unrated
mortgage-backed securities or (b) 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.
-15-
Servicer:
As defined in Section 9.01(f)(iii) .
Servicing
Advances:
All customary, reasonable and necessary “out of pocket” costs and expenses other
than Monthly Advances (including reasonable attorney’s fees and disbursements)
incurred in the performance by the Company of its servicing obligations,
including, but not limited to, the cost of (a) the preservation, restoration
and
protection of the Mortgaged Property, (b) any enforcement or judicial
proceedings, including foreclosures, (c) the management and liquidation of
any
REO Property and (d) compliance with the obligations under Section 4.08 and
4.10.
Servicing
Criteria:
The “servicing criteria” set forth in Item 1122(d) of Regulation AB, as such may
be amended from time to time.
Servicing
Fee:
With respect to each Mortgage Loan, the amount of the per annum fee the
Purchaser shall pay to the Company, which shall, for a period of one full month,
be equal to one-twelfth of the product of (a) the Servicing Fee Rate and (b)
the
unpaid Principal Balance of such Mortgage Loan. Such fee shall be payable
monthly, computed on the basis of the same principal amount and same period
for
which any related interest payment on a Mortgage Loan is received. The
obligation of the Purchaser to pay the Servicing Fee is limited to, and the
Servicing Fee is payable solely from, the interest portion (including recoveries
with respect to interest from Liquidation Proceeds, to the extent permitted
by
Section 4.05) of such Monthly Payment collected by the Company, or as otherwise
provided under Section 4.05.
Servicing
Fee Rate:
With respect to any Mortgage Loan, the rate per annum set forth in the related
Commitment Letter.
Servicing
File:
With respect to each Mortgage Loan, the file retained by the Company consisting
of originals of all documents in the Mortgage File which are not delivered
to
the Custodian and copies of the Mortgage Loan Documents listed in the Custodial
Agreement the originals of which are delivered to the Custodian pursuant to
Section 2.03.
Servicing
Guide:
The Xxxxxx Xxx Servicing Guide or the Freddie Mac Servicing Guide, as in
existence on the date of the related sale or transfer of Mortgage Loans to
Xxxxxx Xxx or Freddie Mac, as applicable, as each may be amended or supplemented
in writing from time to time.
Servicing
Officer:
Any officer of the Company involved in or responsible for the administration
and
servicing of the Mortgage Loans whose name appears on a list of servicing
officers furnished by the Company to the Purchaser upon request, as such list
may from time to time be amended.
Static
Pool Information:
Static pool information as described in Item 1105(a)(1) (3) and 1105(c) of
Regulation AB.
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Stock
Certificate:
With respect to a Cooperative Loan, a certificate evidencing ownership of the
Cooperative Shares issued by the Cooperative.
Stock
Power:
With respect to a Cooperative Loan, an assignment of the Stock Certificate
or an
assignment of the Cooperative Shares issued by the Cooperative.
Subcontractor:
Any vendor, subcontractor or other Person that is not responsible for the
overall servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of Mortgage Loans but performs one or more
discrete functions identified in Item 1122(d) of Regulation AB with respect
to
Mortgage Loans under the direction or authority of the Company or a Subservicer.
Subservicer:
Any Person that services Mortgage Loans on behalf of the Company 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 Company under this Agreement
or any Reconstitution Agreement that are identified in Item 1122(d) of
Regulation AB.
Subsidy
Account:
An account maintained by the Company specifically to hold all Subsidy Funds
to
be applied to individual Subsidy Loans.
Subsidy
Agreement: An
agreement between the Company and a Mortgagor, or an agreement among the
Company, a Mortgagor and an employer of a Mortgagor with respect to a Mortgage
Loan which provides for the application of Subsidy Funds and pursuant to which
the monthly interest payments made by the related Mortgagor will be less than
the scheduled monthly interest payments on such Mortgage Loan, with the
resulting difference in interest payments being provided by the employer of
the
Mortgagor.
Subsidy
Funds:
With respect to any Subsidy Loans, funds contributed by the employer of a
Mortgagor in order to reduce the payments required from the Mortgagor for a
specified period in specified amounts.
Subsidy
Loan:
Any Mortgage Loan subject to a Subsidy Agreement. Each Subsidy Loan will be
identified as such in the related Data File.
Superior
Lien:
With respect to any Second Lien Mortgage Loan, any other mortgage loan relating
to the corresponding Mortgaged Property that creates a lien on the Mortgaged
Property that is senior to such Mortgage Loan.
Third-Party
Originator:
Each Person, other than a Qualified Correspondent, that originated Mortgage
Loans acquired by the Company.
Underwriting
Guidelines:
The underwriting guidelines of the Company, as provided by the Company to the
Purchaser from time to time, in effect at the time of origination of the related
Mortgage Loan.
VA:
The
United States Department of Veterans Affairs, and its successors.
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VA
Mortgage Loan:
A Mortgage Loan that has a LGC issued by the VA.
Whole
Loan Transfer:
Any sale or transfer of some or all of the Mortgage Loans by the Purchaser
to a
third party, which sale or transfer is not an Agency Transfer or a
Securitization Transaction.
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS; POSSESSION OF MORTGAGE FILES; BOOKS AND RECORDS; DELIVERY
OF
DOCUMENTS
Section
2.01 Conveyance
of Mortgage Loans; Possession of Mortgage Files; Maintenance of Servicing
Files.
The
Company agrees to sell and the Purchaser agrees to purchase, from time to time,
those certain Mortgage Loans identified in a Mortgage Loan Schedule, at the
price and on the terms set forth herein and in the related Commitment Letter.
The Purchaser, on any Closing Date, shall be obligated to purchase only such
Mortgage Loans set forth in the applicable Mortgage Loan Schedule, subject
to
the terms and conditions of this Agreement, the related Assignment and
Conveyance Agreement and the related Commitment Letter. On the Closing Date
and
subject to the terms and conditions of this Agreement, the Company will sell,
transfer, assign, set over and convey to the Purchaser, without recourse, but
subject to the terms of this Agreement and the related Assignment and Conveyance
Agreement, all the right, title and interest of the Company in and to the
Mortgage Loans identified on the related Mortgage Loan Schedule, including
all
interest and principal received by the Company on or with respect to the related
Mortgage Loans after the applicable Cut-off Date (and including Monthly Payments
due after the Cut-off Date but received by the Company on or before the Cut-off
Date, but not including payments of principal and interest due on the Mortgage
Loans on or before the Cut-off Date). The Company and Purchaser shall execute
an
Assignment and Conveyance Agreement.
The
principal balance of each Mortgage Loan as of the Cut-off Date shall be
determined after application of payments of principal due on or before the
Cut-off Date whether or not collected. Therefore, payments of scheduled
principal and interest prepaid for a Due Date beyond the Cut-off Date shall
not
be applied to the principal balance as of the Cut-off Date. Such prepaid amounts
(minus
interest at the Servicing Fee Rate) shall be the property of the Purchaser.
The
Company shall deposit any such prepaid amounts into the Custodial Account,
which
account is established for the benefit of the Purchaser for subsequent
remittance by the Company to the Purchaser, and shall remit such amounts as
provided in Section 5.01.
Pursuant
to Section 2.03, the Company has delivered the Mortgage Loan Documents to the
Custodian. The contents of each Mortgage File not delivered to the Custodian
are
and shall be held in trust by the Company for the benefit of the Purchaser
as
the owner thereof. The Company shall maintain a Servicing File consisting of
a
copy of the contents of each Mortgage File and the originals of the documents
in
each
-18-
Mortgage
File not delivered to the Custodian. The possession of each Servicing File
by
the Company is at the will of the Purchaser for the sole purpose of servicing
the related Mortgage Loan, and such retention and possession by the Company
is
in a custodial capacity only. Upon the sale of the Mortgage Loans the ownership
of each Mortgage Note, the related Mortgage and the related Mortgage File and
Servicing File shall vest immediately in the Purchaser, and the ownership of
all
records and documents with respect to the related Mortgage Loan prepared by
or
which come into the possession of the Company shall vest immediately in the
Purchaser and shall be retained and maintained by the Company, in trust, at
the
will of the Purchaser and only in such custodial capacity. The Company shall
release its custody of the contents of any Servicing File only in accordance
with written instructions from the Purchaser, unless such release is required
as
incidental to the Company’s servicing of the Mortgage Loans or is in connection
with a repurchase of any Mortgage Loan pursuant to Section 2.03, 3.03 or 6.02.
In
addition, in connection with the assignment of any MERS Mortgage Loan, the
Company agrees that it will cause, at its own expense, the MERS®
System to indicate that such Mortgage Loans have been assigned by the Company
to
the Purchaser in accordance with this Agreement by including (or deleting,
in
the case of Mortgage Loans which are repurchased in accordance with this
Agreement) in such computer files the information required by the
MERS®
System to identify the Purchaser of such Mortgage Loans. Prior to the assignment
of any MERS Mortgage Loan, the Purchaser will provide the Company with the
Purchaser’s MERS registration number. The Company further agrees that it will
not alter the information referenced in this paragraph with respect to any
Mortgage Loan during the term of this Agreement unless and until such Mortgage
Loan is repurchased in accordance with the terms of this Agreement.
Section
2.02 Books
and Records; Transfers of Mortgage Loans.
From
and after the sale of the Mortgage Loans to the Purchaser all rights arising
out
of the Mortgage Loans including but not limited to all funds received on or
in
connection with the Mortgage Loans, shall be received and held by the Company
in
trust for the benefit of the Purchaser as owner of the Mortgage Loans, and
the
Company shall retain record title to the related Mortgages for the sole purpose
of facilitating the servicing and the supervision of the servicing of the
Mortgage Loans.
The
sale of each Mortgage Loan shall be reflected on the Company’s balance sheet and
other financial statements as a sale of assets by the Company. The Company
shall
be responsible for maintaining, and shall maintain, a complete set of books
and
records for each Mortgage Loan which shall be marked clearly to reflect the
ownership of each Mortgage Loan by the Purchaser. In particular, the Company
shall maintain in its possession, available for inspection by the Purchaser,
or
its designee, and shall deliver to the Purchaser upon demand, evidence of
compliance with all federal, state and local laws, rules and regulations, and
requirements of Xxxxxx Xxx, Freddie Mac or GNMA, including but not limited
to
documentation as to the method used in determining the applicability of the
provisions of the Flood Disaster Protection Act of 1973, as amended, to the
Mortgaged Property, documentation evidencing insurance coverage and
eligibility
-19-
of
any condominium project for approval by Xxxxxx Xxx, Freddie Mac or GNMA, and
periodic inspection reports as required by Section 4.13. To the extent that
original documents are not required for purposes of realization of Liquidation
Proceeds or Insurance Proceeds, documents maintained by the Company may be
in
the form of microfilm or microfiche or such other reliable means of recreating
original documents, including but not limited to, optical imagery techniques
so
long as the Company complies with the requirements of the Xxxxxx Xxx or Freddie
Mac Servicing Guide, as amended from time to time.
The
Company shall maintain with respect to each Mortgage Loan and shall make
available for inspection by any Purchaser or its designee the related Servicing
File during the time the Purchaser retains ownership of a Mortgage Loan and
thereafter in accordance with Applicable Laws.
The
Company shall keep at its servicing office books and records in which, subject
to such reasonable regulations as it may prescribe, the Company shall note
transfers of Mortgage Loans. No transfer of a Mortgage Loan may be made unless
such transfer is in compliance with the terms hereof. For the purposes of this
Agreement, the Company shall be under no obligation to deal with any Person
with
respect to this Agreement or the Mortgage Loans unless the books and records
show such Person as the owner of the Mortgage Loan. The Purchaser may, subject
to the terms of this Agreement, sell and transfer one or more of the Mortgage
Loans. The Purchaser shall also advise the Company of the transfer. Upon receipt
of notice of the transfer, the Company shall mark its books and records to
reflect the ownership of the Mortgage Loans of such assignee, and shall release
the previous Purchaser from its obligations hereunder with respect to the
Mortgage Loans sold or transferred. If the Company receives notification of
a
transfer, including a final loan schedule, less than five (5) Business Days
before the last Business Day of the month, the Company’s duties to remit and
report to the new purchaser(s) as required by Section 5 shall begin with the
next Due Period.
Section
2.03 Delivery
of Documents.
The
Company shall deliver to the Custodian those Mortgage Loan Documents as required
by this Agreement with respect to each Mortgage Loan approximately five (5)
days
prior to the related Closing Date.
The
Custodian shall certify its receipt of all such Mortgage Loan Documents required
to be delivered pursuant to this Agreement. The Company will be responsible
for
the fees and expenses with respect to the delivery of those Mortgage Loan
Documents required to be delivered pursuant to this Agreement. The Company
will
be responsible for the fees and expenses related to the recording of the initial
Assignments of Mortgage (including any fees and expenses related to any
preparation and recording of any intervening or prior assignments of the
Mortgage Loans to the Company or to any prior owners of or mortgagees with
respect to the Mortgage Loans). The Purchaser will be responsible for the
Custodian’s fees and expenses with respect to the initial inventory and
certification and maintenance of the Mortgage Loans on and after the Closing
Date, including costs associated with clearing exceptions.
-20-
Within
180 days after each Closing Date, the Company shall deliver to the Custodian
each of the documents described in Exhibit B not delivered pursuant to the
Agreement; provided,
however,
within 150 days after each Closing Date, the Company shall, with respect to
Non-Conventional Mortgage Loans, deliver to the Custodian the original MIC
or
LGC or Loan Note Guarantee, or an Officer’s Certificate, which shall (i) state
that the MIC or LGC or Loan Note Guarantee has not been delivered to the
Custodian due solely to a delay by the insuring agency, (ii) state the amount
of
time generally required by the insuring agency to process the MIC or LGC or Loan
Note Guarantee and (iii) specify the date the MIC or LGC or Loan Note Guarantee
will be delivered to the Purchaser. The Company will be required to deliver
the
MIC or LGC or Loan Note Guarantee to the Custodian by the date specified in
clause (iii) above. An extension of the date specified in clause (iii) above
may
be requested from the Custodian, which consent shall not be unreasonably
withheld.
The
Company shall forward to the Custodian original documents evidencing an
assumption, modification, consolidation or extension of any Mortgage Loan
entered into in accordance with Section 4.01 or 6.01 within one week of their
execution; provided,
however,
that the Company shall provide the Custodian with a certified true copy of
any
such document submitted for recordation within ten (10) days of its execution,
and shall provide the original of any document submitted for recordation or
a
copy of such document certified by the appropriate public recording office
to be
a true and complete copy of the original within sixty (60) days of its
submission for recordation.
In
the event the public recording office is delayed in returning any original
document, the Company shall deliver to the Custodian within 240 days of its
submission for recordation, a copy of such document and an Officer’s
Certificate, which shall (i) identify the recorded document; (ii) state that
the
recorded document has not been delivered to the Custodian due solely to a delay
by the public recording office, (iii) state the amount of time generally
required by the applicable recording office to record and return a document
submitted for recordation, and (iv) specify the date the applicable recorded
document will be delivered to the Custodian. The Company will be required to
deliver such document to the Custodian by the date specified in clause (iv)
above. An extension of the date specified in clause (iv) above may be requested
from the Purchaser, which consent shall not be unreasonably withheld.
Notwithstanding
the foregoing, if the originals or certified copies required in this Section
2.03 are not delivered as required within 180 days after each Closing Date
or as
otherwise extended as set forth above, the related Mortgage Loan shall, upon
request of the Purchaser, be repurchased by the Company in accordance with
Section 3.03 hereof; provided,
however,
that the foregoing repurchase obligation shall not apply in the event the
Company cannot deliver such items due to a delay caused by the recording office
in the applicable jurisdiction; provided
that the Company shall deliver instead a recording receipt of such recording
office or, if such recording receipt is not available, an Officer’s Certificate
from the Company confirming that such documents have been accepted for
recording. Any such document shall be delivered to the Purchaser or its designee
promptly upon receipt thereof from the related recording office.
-21-
If
the Company, the Purchaser or the Custodian finds any document or documents
constituting a part of a Mortgage File pertaining to a Mortgage Loan to be
defective (or missing) in any material respect, and such defect or missing
document materially and adversely affects the value of the related Mortgage
Loan
or the interests of the Purchaser therein, the party discovering such defect
shall promptly so notify the Company. The Company shall have a period of 90
days
after receipt of such written notice within which to correct or cure any such
defect. The Company hereby covenants and agrees that, if any material defect
cannot be corrected or cured, the Company will, upon the expiration of the
applicable cure period described above, repurchase the related Mortgage Loan
in
the manner set forth in Section 3.03; provided,
however,
that with respect to any Mortgage Loan, if such defect constitutes a
Qualification Defect, any such repurchase must take place within seventy-five
(75) days of the date such defect is discovered.
Notwithstanding
the foregoing, with respect to a Mortgage Loan, if, at the end of such 90-day
period, the Company delivers an Officer’s Certificate to the Purchaser
certifying that the Company is using good faith efforts to correct or cure
such
defect and identifying progress made, then the Purchaser shall grant the Company
an extension to correct or cure such defect. The extension shall not extend
beyond (1) the date that is seventy-five (75) days after the date the defect
is
discovered, or (2), if the defect is not a Qualification Defect (as evidenced
by
an Opinion of Counsel), the date that is thirty (30) days beyond the original
ninety (90) day cure period. If the defect is not a Qualification Defect,
additional thirty (30) day extensions may be obtained pursuant to the same
procedure, as long as the Company demonstrates continued progress toward a
correction or cure; provided
that no extension shall be granted beyond 180 days from the date on which the
Company received the original notice of the defect.
Notwithstanding
the foregoing, with respect to a Mortgage Loan, the failure of the Purchaser
to
notify the Company of any defective or missing document in a Mortgage File
within such 90-day period, or the failure of the Purchaser to require the
Company to cure or repurchase the related Mortgage Loan upon expiration of
such
90-day period, shall not constitute a waiver of its rights hereunder, including
the rights with respect to a Mortgage Loan, to require the Company to repurchase
the affected Mortgage Loan and the right to indemnification pursuant to Section
3.03 hereof.
Section
2.04 Mortgage
Schedule.
On
each Closing Date, the Company shall provide the Purchaser with certain
information constituting a listing of the Mortgage Loans to be purchased under
this Agreement (the “Mortgage Loan Schedule”) substantially in the form attached
hereto as Exhibit A. The Mortgage Loan Schedule shall conform to the definition
of “Mortgage Loan Schedule” hereunder.
Section
2.05 Examination
of Mortgage Files.
Prior
to each Closing Date, the Company shall (a) deliver to the Purchaser in escrow,
for examination, the Mortgage File for each Mortgage Loan, including a copy
of
the Assignment of Mortgage, pertaining to each Mortgage Loan, or (b) make
the
-22-
Mortgage
Files available to the Purchaser for examination at the Company’s offices or
such other location as shall otherwise be agreed upon by the Purchaser and
the
Company. Such examination may be made by the Purchaser at any time before or
after the related Closing Date or by any prospective purchaser of the Mortgage
Loans from the Purchaser, at any time after the respective Closing Date upon
prior reasonable notice to the Company. The fact that the Purchaser or any
prospective purchaser of the Mortgage Loans has conducted or has failed to
conduct any partial or complete examination of the Mortgage Files shall not
affect the Purchaser’s (or any of its successor’s) rights to demand repurchase,
substitution or other relief as provided under this Agreement.
Section
2.06 Representations,
Warranties and Agreements of the Company.
The
Company agrees and acknowledges that it shall, as a condition to the
consummation of the transactions contemplated hereby, make the representations
and warranties specified in Sections 3.01 and 3.02 as of the Closing Date for
the related Mortgage Loans. The Company, without conceding that the Mortgage
Loans are securities, hereby further represents, warrants and agrees, as of
the
Closing Date for the related Mortgage Loans, that neither the Company nor anyone
acting on its behalf has offered, transferred, pledged, sold or otherwise
disposed of any Mortgage Loans, any interest in any Mortgage Loans or any other
similar security to, or solicited any offer to buy or accept a transfer, pledge
or other disposition of any Mortgage Loans, any interest in any Mortgage Loans
or any other similar security from, or otherwise approached or negotiated with
respect to any Mortgage Loans, any interest in any Mortgage Loans or any other
similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or taken
any other action which would constitute a distribution of the Mortgage Loans
under the Securities Act, or which would render the disposition of any Mortgage
Loans a violation of Section 5 of the Securities Act or require registration
pursuant thereto, nor will it act, nor has it authorized or will it authorize
any person to act, in such manner with respect to the Mortgage Loans.
Section
2.07 Representation,
Warranties and Agreement of Purchaser.
The
Purchaser, without conceding that the Mortgage Loans are securities, hereby
makes the following representations, warranties and agreements, which shall
be
deemed to have been made as of the Closing Date for the related Mortgage Loans:
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(i)
|
the
Purchaser understands that the Mortgage Loans have not been registered
under the Securities Act or the securities laws of any state;
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(ii)
|
the
Purchaser is acquiring the Mortgage Loans for its own account only
and not
for any other Person; and
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(iii)
|
the
Purchaser considers itself a substantial, sophisticated institutional
investor having such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risks of
investment in the Mortgage Loans.
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-23-
Section
2.08 Closing.
The
closing for the purchase and sale of each pool of Mortgage Loans shall take
place on the related Closing Date. At the Purchaser’s option, each closing shall
be either performed 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:
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(i)
|
all
of the representations and warranties of the Company under this Agreement
shall be true and correct as of the related Closing Date and no event
shall have occurred which, with notice or the passage of time, would
constitute a default under this Agreement;
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(ii)
|
the
Purchaser shall have received, or the Purchaser’s attorneys shall have
received in escrow, all Closing Documents for the related Mortgage
Loans
as specified in Section 2.09 of this Agreement, in such forms as
are
agreed upon and acceptable to the Purchaser, duly executed by all
signatories other than the Purchaser as required pursuant to the
respective terms thereof;
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(iii)
|
the
Company shall have delivered to the Custodian all documents required
pursuant to this Agreement, and
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|
(iv)
|
all
other terms and conditions of this Agreement shall have been complied
with.
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Subject
to the foregoing conditions, the Purchaser shall pay to the Company on each
Closing Date the Purchase Price for the related Mortgage Loans by wire transfer
of immediately available funds to the account designated by the Company and
the
Company shall release all documents required pursuant to this Agreement.
Section
2.09 Closing Documents.
With
respect to each pool of Mortgage Loans, the closing documents shall consist
of
fully executed originals of the following documents:
On
the initial Closing Date:
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(i)
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this
Agreement, in two counterparts;
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(ii)
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an
Assignment and Conveyance Agreement for the related Mortgage Loans;
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(iii)
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the
Commitment Letter, in two counterparts;
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(iv)
|
the
related Mortgage Loan Schedule, one copy to be attached to the related
Assignment and Conveyance Agreement;
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-24-
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(v)
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a
receipt and certification, as required under the Custodial Agreement;
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(vi)
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an
officer’s certificate of the Company substantially in the form of Exhibit
G attached hereto; and
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(vii)
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an
Opinion of Counsel of the Company, in the form of Exhibit D attached
hereto.
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On
each subsequent Closing Date, the following documents:
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(i)
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the
Commitment Letter relating to each pool of Mortgage Loans;
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(ii)
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the
Mortgage Loan Schedule for the related pool of Mortgage Loans;
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(iii)
|
an
Assignment and Conveyance Agreement for the related pool of Mortgage
Loans; and
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(iii)
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a
receipt and certification, as required under the Custodial
Agreement.
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ARTICLE
III
REPRESENTATIONS
AND WARRANTIES REMEDIES AND BREACH
Section
3.01 Company Representations and Warranties.
The
Company hereby represents and warrants to the Purchaser that, as of each Closing
Date:
(a)
Due Organization and Authority.
The
Company is a national banking association duly organized, validly existing
and
in good standing under the laws of the United States and has all licenses
necessary to carry on its business as now being conducted and is licensed,
qualified and in good standing in each state where a Mortgaged Property is
located if the laws of such state require licensing or qualification in order
to
conduct business of the type conducted by the Company, and in any event the
Company is in compliance with the laws of any such state to the extent necessary
to ensure the enforceability of the related Mortgage Loan and the servicing
of
such Mortgage Loan in accordance with the terms of this Agreement; the Company
has the full power and authority to execute and deliver this Agreement and
to
perform in accordance herewith; the execution, delivery and performance of
this
Agreement (including all instruments of transfer to be delivered pursuant to
this Agreement) by the Company and the consummation of the transactions
contemplated hereby have been duly and validly authorized; this Agreement
evidences the valid, binding and enforceable obligation of the Company; and
all
requisite action has been taken by the Company to make this Agreement valid
and
binding upon the Company in accordance with its terms;
-25-
(b)
Ordinary
Course of Business.
The
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Company, which is in the business of selling
and servicing loans, and the transfer, assignment and conveyance of the Mortgage
Notes and the Mortgages by the Company pursuant to this Agreement are not
subject to the bulk transfer or any similar statutory provisions in effect
in
any applicable jurisdiction;
(c)
No
Conflicts.
Neither
the execution and delivery of this Agreement, the acquisition of the Mortgage
Loans by the Company, the sale of the Mortgage Loans to the Purchaser or the
transactions contemplated hereby, nor the fulfillment of or compliance with
the
terms and conditions of this Agreement will conflict with or result in a breach
of any of the terms, articles of incorporation or by-laws or any legal
restriction or any agreement or instrument to which the Company is now a party
or by which it is bound, or constitute a default or result in the violation
of
any law, rule, regulation, order, judgment or decree to which the Company or
its
property is subject, or impair the ability of the Purchaser to realize on the
Mortgage Loans, or impair the value of the Mortgage Loans;
(d)
Ability
to Service.
The
Company is an approved seller/servicer of residential mortgage loans for HUD,
VA
and GNMA with the facilities, procedures, and experienced personnel necessary
for the sound servicing of mortgage loans of the same type as the Mortgage
Loans. The Company is in good standing to sell mortgage loans to and service
mortgage loans for HUD, VA and GNMA, and no event has occurred, including but
not limited to a change in insurance coverage, which would make the Company
unable to comply with HUD, VA and GNMA, eligibility requirements or which would
require notification to HUD, VA and GNMA;
(e)
Reasonable
Servicing Fee.
The
Company 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 Company, for accounting and tax purposes, as
compensation for the servicing and administration of the Mortgage Loans pursuant
to this Agreement;
(f)
Ability
to Perform.
The
Company 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
Company is solvent and the sale of the Mortgage Loans will not cause the Company
to become insolvent. The sale of the Mortgage Loans is not undertaken to hinder,
delay or defraud any of the Company’s creditors;
-26-
(g)
No
Litigation Pending.
There
is no action, suit, proceeding or investigation pending or threatened against
the Company 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 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 this Agreement or the Mortgage Loans
or
of any action taken or to be contemplated herein, or which would be likely
to
impair materially the ability of the Company to perform under the terms of
this
Agreement;
(h)
No
Consent Required.
No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Company
of
or compliance by the Company with this Agreement or the sale of the Mortgage
Loans as evidenced by the consummation of the transactions contemplated by
this
Agreement, or if required, such approval has been obtained prior to the Closing
Date;
(i)
No
Untrue Information.
Neither
this Agreement nor any statement, report or other document furnished or to
be
furnished pursuant to this Agreement or in connection with the transactions
contemplated hereby contains any untrue statement of fact or omits to state
a
fact necessary to make the statements contained therein not misleading;
(j)
Sale
Treatment.
The
Company has determined that the disposition of the Mortgage Loans pursuant
to
this Agreement will be afforded sale treatment for accounting and tax
purposes;
(k)
No
Material Change.
There
has been no material adverse change in the business, operations, financial
condition or assets of the Company since the date of the Company’s most recent
financial statements;
(l)
No
Brokers’ Fees.
The
Company has not dealt with any broker, investment banker, agent or other Person
that may be entitled to any commission or compensation in connection with the
sale of the Mortgage Loans; and
(m)
MERS
Status.
The
Company is a member of MERS in good standing.
-27-
Section
3.02 Representations and Warranties Regarding Individual Mortgage Loans.
As
to each Mortgage Loan, the Company hereby represents and warrants to the
Purchaser that as of the related Closing Date:
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(i)
|
Mortgage
Loans as Described.
|
The
information set forth in the Mortgage Loan Schedule attached to the related
Assignment and Conveyance Agreement as Schedule A is true and
correct;
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(ii)
|
No
Outstanding Charges.
|
There
are no defaults by the Company in complying with the terms of the Mortgage
Note
or Mortgage, and all taxes, governmental assessments, insurance premiums, water,
sewer and municipal charges, which previously became due and owing have been
paid, or an escrow of funds has been established for every such item which
remains unpaid and which has been assessed but is not yet due and payable;
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(iii)
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Original
Terms Unmodified.
|
The
terms of the Mortgage Note and Mortgage have not been impaired, waived, altered
or modified in any respect, except by a written instrument which has been
recorded, if necessary to protect the interests of the Purchaser, and which
has
been delivered to the Purchaser. The substance of any such waiver, alteration
or
modification has been approved by the applicable mortgage insurer, if the
Mortgage Loan is insured, and the title insurer, to the extent required by
the
policy, or, with respect to the Non-Conventional Mortgage Loans, FHA or VA
or
RHS, as applicable, and its terms are reflected on the Mortgage Loan Schedule.
No Mortgagor has been released, in whole or in part, except in connection with
an assumption agreement approved by the title insurer, to the extent required
by
the policy or agency guidelines, and with respect to the Non-Conventional
Mortgage Loans, the issuer of the MIC or LGC or Loan Note Guarantee, as
applicable, and which assumption agreement is part of the Mortgage File
delivered to the Purchaser and the terms of which are reflected in the Mortgage
Loan Schedule;
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(iv)
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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,
-28-
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;
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(v)
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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 satisfaction, release, cancellation, subordination or
rescission;
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(vi)
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Validity
of Mortgage Documents.
|
The
Mortgage Note and the Mortgage and related documents are genuine, and each
is
the legal, valid and binding obligation of the maker thereof enforceable in
accordance with its terms. All parties to the Mortgage Note and the Mortgage
had
legal capacity to enter into the Mortgage Loan and to execute and deliver the
Mortgage Note and the Mortgage, and the Mortgage Note and the Mortgage have
been
duly and properly executed by such parties;
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(vii)
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No
Fraud.
|
All
the documents executed in connection with the Mortgage Loan including, but
not
limited to, the Mortgage Note and the Mortgage are, to the best of the Company’s
knowledge, free of fraud and any misrepresentation, are signed by the persons
they purport to be signed by, and witnessed or, as appropriate, notarized by
the
persons whose signatures appear as witnesses or notaries, and each such document
constitutes the valid and binding legal obligation of the signatories and is
enforceable in accordance with its terms;
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(viii)
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Compliance
with Applicable Laws.
|
Any
and all requirements of any federal, state or local law including, without
limitation, usury, truth-in-lending, real estate settlement procedures, consumer
credit protection, equal credit opportunity, abusive lending or disclosure
laws
applicable to the Mortgage Loan have been complied with, and the Company 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. 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
-29-
underwriting
certificates, have been made or obtained from the appropriate authorities;
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(ix)
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Location
and Type of Mortgaged Property.
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The
Mortgaged Property is located in the state identified in the Mortgage Loan
Schedule and consists of a single parcel (or more than one contiguous parcels)
of real property with a detached single family residence erected thereon, or
a
two- to four-family dwelling, or a Cooperative Apartment, or a manufactured
dwelling, or an individual condominium unit in a condominium project, or an
individual unit in a planned unit development or a townhouse; provided,
however,
that, any condominium project or planned unit development shall conform, if
a
Non-Conventional Mortgage Loan, with the applicable HUD or VA requirements,
regarding such dwellings and no residence or dwelling is a mobile home. As
of
the respective appraisal date for each Mortgaged Property, no portion of the
Mortgaged Property was being used for commercial purposes outside of the HUD
or
VA requirements for Non-Conventional Mortgage Loans or outside of the
Underwriting Guidelines for Conventional Mortgage Loans. With respect to the
Non-Conventional Mortgage Loans, if the Mortgaged Property is a condominium
unit
or a planned unit development (other than a de
minimis
planned unit development), such condominium or planned unit development project
meets HUD or VA eligibility requirements or is located in a condominium or
planned unit development project which has received HUD or VA project approval
and the representations and warranties required by HUD or VA with respect to
such condominium or planned unit development have been made and remain true
and
correct in all respects;
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(x)
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Valid
First Lien.
|
The
Mortgage is a valid, subsisting and enforceable first lien on the Mortgaged
Property, including all buildings on the Mortgaged Property and all
installations and mechanical, electrical, plumbing, heating and air conditioning
systems located in or annexed to such buildings, and all additions, alterations
and replacements made at any time with respect to the foregoing. The lien of
the
Mortgage is subject only to:
|
a.
|
the
lien of current real property taxes and assessments not yet due and
payable;
|
|
b.
|
covenants,
conditions and restrictions, rights of way, easements and other matters
of
the public record as of the date of recording acceptable to mortgage
lending institutions generally and specifically referred to in the
lender’s title insurance policy or attorney’s title opinion delivered to
the
|
-30-
originator
of the Mortgage Loan and (i) referred to or otherwise considered in the
appraisal made for the originator of the Mortgage Loan and (ii) which do not
adversely affect the Appraised Value of the Mortgaged Property set forth in
such
appraisal; and
|
c.
|
other
matters to which like properties are commonly subject which do not
materially interfere with the benefits of the security intended to
be
provided by the mortgage or the use, enjoyment, value or marketability
of
the related Mortgaged Property.
|
Any
security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates a valid,
subsisting and enforceable first lien and first priority security interest
on
the property described therein, and the Company has full right to sell and
assign the same to the Purchaser;
|
(xi)
|
Full
Disbursement of Proceeds.
|
The
proceeds of the Mortgage Loan have been fully disbursed, except for escrows
established or created due to seasonal weather conditions, and there is no
requirement for future advances thereunder. 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;
|
(xii)
|
Ownership.
|
The
Company is the sole owner of record and holder of the Mortgage Loan and the
related Mortgage Note and the Mortgage are not assigned or pledged, and the
Company has good and marketable title thereto and has full right and authority
to transfer and sell the Mortgage Loan to the Purchaser. The Company is
transferring the Mortgage Loan free and clear of any and all encumbrances,
liens, pledges, equities, participation interests, claims, charges or security
interests of any nature encumbering such Mortgage Loan;
|
(xiii)
|
Origination/Doing
Business.
|
The
Mortgage Loan was originated by a savings and loan association, a savings bank,
a commercial bank, a credit union, an insurance company, or similar institution
which is supervised and examined by a federal or state authority or by a
mortgagee approved by the Secretary of Housing and Urban Development pursuant
to
Sections 203 and 211 or the National Housing Act. All parties which have had
any
interest in the Mortgage Loan, whether as mortgagee, assignee, pledgee or
otherwise,
-31-
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 any qualification
requirements of, with respect to the Non-Conventional Mortgage Loans, FHA or
VA
or RHS, as applicable, or GNMA, or, with respect to the Conventional Mortgage
Loans, Xxxxxx Xxx or Freddie Mac and (2) organized under the laws of such state,
or (3) qualified to do business in such state, or (4) federal savings and loan
associations or national banks having principal offices in such state, or (5)
not doing business in such state;
| (xiv) |
FHA
Insurance/VA Guaranty/RHS Guaranty.
|
|
a.
|
Each
FHA Mortgage Loan was underwritten in accordance with FHA standards
and is
fully-insured by the FHA, which insurance is in full force and effect,
and
the Mortgage Loan is not subject to any defect which would diminish
or
impair the FHA insurance, and all prior transfers, if any, of the
Mortgage
Loan have been, and the transactions herein contemplated are, in
compliance with the FHA regulations, and no circumstances exist with
respect to the FHA Mortgage Loans which would permit the FHA to deny
coverage under the FHA insurance;
|
|
b.
|
Each
VA Mortgage Loan was underwritten in accordance with VA standards
and is
guaranteed by the VA, which guaranty is in full force and effect,
and the
Mortgage Loan is not subject to any defect which would diminish or
impair
the VA guaranty (other than a potential valuation of the mortgaged
property), and all prior transfers, if any, of the Mortgage Loan
have
been, and the transactions herein contemplated are, in compliance
with the
VA regulations, and no circumstances exist with respect to the VA
Mortgage
Loan which would permit the VA to deny coverage under the VA guaranty;
|
|
c.
|
Each
RHS Mortgage Loan was underwritten in accordance with RHS standards
and is
guaranteed by the RHS, and each related Loan Note Guarantee is in
full
force and effect, and the Mortgage Loan is not subject to any defect
which
would diminish or impair the Loan Note Guarantee (other than a potential
valuation of the mortgaged property), and all prior transfers, if
any, of
the Mortgage Loan have been, and the transactions herein contemplated
are,
in compliance with RHS regulations, and no circumstances exist with
respect to the RHS Mortgage Loan which would permit the RHS to deny
coverage under the RHS guaranty;
|
-32-
|
d.
|
No
Mortgage Loan is a VA Vendee Loan, Title I Loan or Section 235 Loan;
and
|
|
e.
|
Each
Non-Conventional Mortgage Loan was previously included in a GNMA
mortgage
loan pool and was repurchased from such pool, in accordance with
applicable GNMA guidelines, by the Company or a predecessor servicer,
after such Mortgage Loan missed one or more Monthly Payments and
remained
delinquent for ninety (90) consecutive days or more;
|
|
(xv)
|
Title
Insurance.
|
The
Mortgage Loan is covered by an ALTA lender’s title insurance policy or other
generally acceptable form of policy of insurance acceptable to, with respect
to
the Non-Conventional Mortgage Loans, GNMA, FHA, VA or RHS, as applicable, or,
with respect to the Conventional Mortgage Loans, Xxxxxx Xxx or Freddie Mac,
issued by a title insurer acceptable to, with respect to the Non-Conventional
Mortgage Loans, GNMA, FHA, VA or RHS, as applicable, or, for Conventional
Mortgage Loans, Xxxxxx Xxx or Freddie Mac, and qualified to do business in
the
jurisdiction where the Mortgaged Property is located, insuring the Company,
its
successors and assigns, as to the first priority lien (or second priority if
such Mortgage Loan is a Second Lien Mortgage Loan) of the Mortgage in the
original principal amount of the Mortgage Loan, subject only to the exceptions
contained in clauses (a), (b) and (c) of paragraph (x) of this Section 3.02;
provided,
however,
that in the case of any Mortgage Loan secured by a Mortgaged Property located
in
a jurisdiction where such policies are generally not available, the Mortgage
Loan is the subject of an opinion of counsel of the type customarily rendered
in
such jurisdiction in lieu of title insurance. The Company is the sole insured
of
such lender’s title insurance policy, and such lender’s title insurance policy
is in full force and effect and will be in force and effect upon the
consummation of the transactions contemplated by this Agreement. No claims
have
been made under such lender’s title insurance policy, and no prior holder of the
Mortgage, including the Company, has done, by act or omission, anything which
would impair the coverage of such lender’s title insurance policy;
|
(xvi)
|
No
Mechanics’ Liens.
|
There
are no mechanics’ or similar liens or claims which have been filed for work,
labor or material (and no rights are outstanding that under the law could give
rise to such liens) affecting the related Mortgaged Property which are or may
be
liens prior to, or equal or coordinate with, the lien of the related Mortgage
which are not insured
-33-
against
by the title insurance policy referenced in clause (xv) above and (xlix) below;
|
(xvii)
|
Location
of Improvements; No Encroachments.
|
Except
as insured against by the title insurance policy referenced in clause (xv)
above, 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;
|
(xviii)
|
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. 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;
|
(xix)
|
Occupancy
of the Mortgaged Property.
|
As
of the date of origination, the Mortgaged Property was lawfully occupied under
Applicable Law;
|
(xx)
|
No
Additional Collateral.
|
Except
in the case of a Pledged Asset Mortgage Loan, the Mortgage Note is not and
has
not been secured by any collateral, pledged account or other security except
the
lien of the corresponding Mortgage and the security interest of any applicable
security agreement or chattel mortgage referred to in clause (x) above;
|
(xxi)
|
Deeds
of Trust.
|
In
the event that the Mortgage constitutes a deed of trust, a trustee, duly
qualified under Applicable Law to serve as such, has been properly designated
and currently so serves and is named in the Mortgage, and no fees or expenses
are or will become payable by the Mortgagee to the trustee under the deed of
trust, except in connection with a trustee’s sale after default by the
Mortgagor;
-34-
|
(xxii)
|
Transfer
of Mortgage Loans.
|
As
to any Mortgage Loan which is not a MERS Mortgage Loan, the Assignment of
Mortgage is in recordable form and is acceptable for recording under the laws
of
the jurisdiction in which the Mortgaged Property is located;
|
(xxiii)
|
Mortgaged
Property Undamaged.
|
The
Mortgaged Property is undamaged by water, 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;
|
(xxiv)
|
Collection
Practices; Escrow Deposits.
|
The
origination and collection practices used with respect to the Mortgage Loan
have
been in accordance with Acceptable Servicing Practices, and have been in all
material respects legal and proper, and in accordance with the terms of the
Mortgage Note and Mortgage or, with respect to the Non-Conventional Mortgage
Loans, rules and regulations of FHA, VA or RHS, as applicable, including those
rules, regulations and guidelines relating to loss mitigation. All Escrow
Payments have been collected in full compliance with state and federal law.
An
escrow of funds is not prohibited by Applicable Law and has been established
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 Company have been capitalized under the Mortgage Note. For Adjustable
Rate Mortgage Loans, all Mortgage Interest Rate adjustments have been made
in
compliance with state and federal law and the terms of the related Mortgage
and
Mortgage Note on the related Interest Rate Adjustment Date;
|
(xxv)
|
No
Condemnation.
|
To
the best of Company’s knowledge, there is no proceeding pending or threatened
for the total or partial condemnation of the related Mortgaged Property;
|
(xxvi)
|
The
Appraisal.
|
The
Mortgage File contains an appraisal of the related Mortgaged Property by an
appraiser who had no interest, direct or indirect, in the Mortgaged Property
or
in any loan made on the security thereof; and whose compensation is not affected
by the approval or disapproval of the Mortgage Loan, and the appraisal and
the
appraiser both satisfy the applicable requirements of, with respect to the
Non-Conventional
-35-
Mortgage
Loans, FHA, VA or RHS, as applicable, or with respect to the Conventional
Mortgage Loans, Xxxxxx Xxx or Freddie Mac;
|
(xxvii)
|
Insurance.
|
The
Mortgaged Property securing each Mortgage Loan is insured by an insurer
acceptable to, with respect to the Non-Conventional Mortgage Loans, FHA, VA
or
RHS, as applicable, or with respect to the Conventional Mortgage Loans, Xxxxxx
Xxx or Xxxxxxx Mac against loss by fire and such hazards as are covered under
a
standard extended coverage endorsement, in an amount which is at least equal
to
the lesser of (a) 100% of the insurable value, on a replacement cost basis,
of
the improvements on the related Mortgaged Property or (b) the greater of (i)
either (1) the outstanding principal balance of the Mortgage Loan with respect
to each First Lien Mortgage Loan or (2) with respect to each Second Lien
Mortgage Loan, the sum of the outstanding principal balance of the first lien
on
such Mortgage Loan and the outstanding principal balance of such Second Lien
Mortgage Loan, or (ii) an amount such that the proceeds of such insurance shall
be sufficient to prevent the application to the Mortgagor or the loss payee
of
any coinsurance clause under the policy. If the Mortgaged Property is a
condominium unit, it is included under the coverage afforded by a blanket policy
for the project; the insurance policy contains a standard clause naming the
originator of such mortgage loan, its successor and assigns, as insured
mortgagee; if upon origination of the Mortgage Loan, the improvements on the
Mortgaged Property were in an area identified in the Federal Register by the
Federal Emergency Management Agency as having special flood hazards, a flood
insurance policy meeting the requirements of the current guidelines of the
Federal Insurance Administration is in effect with a generally acceptable
insurance carrier, in an amount representing coverage not less than the least
of
(A) the outstanding principal balance of the Mortgage Loan, (B) the full
insurable value and (C) the maximum amount of insurance which was available
under the Flood Disaster Protection Act of 1973, as amended; and the Mortgage
obligates the Mortgagor thereunder to maintain all such insurance at the
Mortgagor’s cost and expense and the Company has not acted or failed to act so
as to impair the coverage of any such insurance policy or the validity, binding
effect and enforceability thereof;
|
(xxviii)
|
Servicemembers
Civil Relief Act.
|
The
Mortgagor has not notified the Company, and the Company has no knowledge of
any
relief requested or allowed to the Mortgagor under the Servicemembers Civil
Relief Act, as amended;
-36-
|
(xxix)
|
Payment
Terms.
|
Except
with respect to the Interest Only Mortgage Loans, the Mortgage Note is payable
each month in equal monthly installments of principal and interest, which with
respect to Adjustable Rate Mortgage Loans the installments of interest are
subject to change due to the adjustments to the Mortgage Interest Rate on each
Interest Rate Adjustment Date, with interest in arrears, sufficient to amortize
the Mortgage Loan fully by the stated maturity date, providing for full
amortization by maturity over a scheduled term of no more than 30 years from
origination and once the amortization period starts, payments are calculated
to
fully amortize by maturity. No Mortgage Loan has a shared appreciation or other
contingent interest feature, or permits negative amortization;
|
(xxx)
|
No
Defaults.
|
Except
with respect to delinquencies identified on the Mortgage Loan Schedule, there
is
no default, breach, violation or event of acceleration existing under any
Mortgage or Mortgage Note and no event that, with the passage of time or with
notice and the expiration of any grace or cure period, would constitute a
default, breach, violation or event of acceleration, and the Company has not
waived any default, breach, violation or event of acceleration;
|
(xxxi)
|
No
Bankruptcy.
|
To
the best of the Company’s knowledge, no Mortgagor was a debtor in any state or
federal bankruptcy or insolvency proceeding at the time the Mortgage Loan was
originated and as of the Closing Date, except as identified on the Mortgage
Loan
Schedule, the Company has not received notice that any Mortgagor is a debtor
under any state or federal bankruptcy or insolvency proceeding.
|
(xxxii)
|
Loan-to-Value
Ratio; No Foreclosures.
|
The
Loan-to-Value Ratio of each Mortgage Loan is as stated on the Mortgage Loan
Schedule. Except as identified on the Mortgage Loan Schedule, no Mortgage Loan
is subject to active foreclosure proceedings;
|
(xxxiii)
|
Underwriting
Guidelines.
|
The
Mortgage Loan was underwritten in accordance with the Company’s underwriting
guidelines in effect at the time of origination with exceptions thereto
exercised in a reasonable manner;
-37-
|
(xxxiv)
|
Primary
Mortgage Insurance.
|
Each
Conventional Mortgage Loan with an LTV at origination in excess of 80% that
the
Mortgage Loan Schedule indicates as having a PMI Policy will be subject to
a PMI
Policy or LPMI Policy, issued by an insurer acceptable to Xxxxxx Xxx or Freddie
Mac, in at least such amounts as are required by Freddie Mac or Xxxxxx Xxx.
At
its origination, no Mortgage Loan secured by a second lien on the Mortgaged
Property has a CLTV greater than 100%. All provisions of such PMI Policy or
LPMI
Policy have been and are being complied with, such policy is in full force
and
effect, and all premiums due thereunder have been paid. Any Mortgage Loan
subject to any such PMI Policy or LPMI Policy obligates the Mortgagor or
Company, as applicable, to maintain such insurance and to pay all premiums
and
charges in connection therewith unless terminable in accordance with Freddie
Mac
or Xxxxxx Xxx standards or Applicable Law;
|
(xxxv)
|
No
Additional Payments.
|
There
is no obligation on the part of the Company or any other party to make payments
in addition to those made by the Mortgagor;
|
(xxxvi)
|
Comparable
Mortgage File.
|
Each
document or instrument in the related Mortgage File is in a form generally
acceptable to prudent mortgage lenders that regularly originate or purchase
mortgage loans comparable to the Mortgage Loans for sale to prudent investors
in
the secondary market that invest in mortgage loans such as the Mortgage Loans;
|
(xxxvii)
|
High
Cost Loans.
|
No
Mortgage Loan is a High Cost Loan or Covered Loan;
|
(xxxviii)
|
Fair
Credit Reporting Act.
|
The
Company, in its capacity as servicer for each Mortgage Loan, has 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;
|
(xxxix)
|
No
Credit Insurance Policies.
|
No
proceeds from any Mortgage Loan were used to purchase single-premium credit
insurance policies;
-38-
|
(xl)
|
Prepayment
Penalty Term.
|
No
Mortgage Loan originated on or after October 1, 2002 will impose a prepayment
premium for a term in excess of three years after its origination. No Mortgage
Loan originated before October 1, 2002 will impose a prepayment premium for
a
term in excess of five years after its origination;
|
(xli)
|
No
Violation of Environmental Laws.
|
To
the best of the Company'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;
|
(xlii)
|
No
Arbitration Provision.
|
No
Mortgage Loan originated on or after August 1, 2004 requires the related
Mortgagor to submit to arbitration to resolve any dispute arising out of or
relating in any way to the Mortgage Loan transaction;
|
(xliii)
|
Tax
Service Contract; Flood Certification Contract.
|
Each
Mortgage Loan shall have a tax service contract and, if applicable, a flood
insurance contract which shall have a term of the life of the Mortgage Loan.
Each such tax service and flood insurance contract shall be fully transferable
without penalty, premium or cost to the Purchaser or its designee, unless,
with
respect to tax service contract, the Company is terminated pursuant to Section
11.02 hereof;
|
(xliv)
|
Subsidy
Mortgage Loans.
|
With
respect to each Mortgage Loan that is a Subsidy Mortgage Loan:
(1)
On or before the date of origination of such Mortgage Loan, the Company and
the
Mortgagor, or the Company, the Mortgagor and the employer of the Mortgagor
entered into a Subsidy Agreement. The Subsidy Agreement provides that the
employer of the Mortgagor shall deliver to the Company Subsidy Funds in an
amount equal to the aggregate undiscounted amount of payments that, when added
to the amount the Mortgagor on such Mortgage Loan is obligated to pay on each
Due Date in accordance with the terms of the Subsidy Agreement, is equal to
the
full scheduled Monthly Payment due on such Mortgage Loan. The Subsidy Funds
enable the
-39-
Mortgagor
to qualify for the Subsidy Mortgage Loan. The effective interest rate of a
Subsidy Mortgage Loan if less than the interest rate set forth in the related
Mortgage Note will increase within the Subsidy Period as provided in the related
Subsidy Agreement so that the effective interest rate will be equal to the
interest rate as set forth in the related Mortgage Note. All Subsidy Funds
required to make the full payment of principal and interest under each Subsidy
Loan are in the Subsidy Account held by the Company in its capacity as servicer.
The Subsidy Mortgage Loan satisfies the Underwriting Guidelines;
(2)
The Mortgage and Mortgage Note reflect the permanent payment terms rather than
the payment terms of the Subsidy Agreement. The Subsidy Agreement provides
for
the payment by the Mortgagor of the full amount of the Monthly Payment on any
Due Date that the Subsidy Funds are not available. The Subsidy Funds were not
used to reduce the original principal balance of the Mortgage Loan or to
increase the Appraised Value of the Mortgage Property when calculating the
Loan-to-Value Ratios for purposes of the Agreement;
(3)
The Subsidy Funds may not be refunded to the Mortgagor unless the Mortgagor
makes a principal payment for the outstanding balance of the Mortgage Loan;
| (xlv) |
Buydown
Mortgage Loans.
|
With
respect to each Mortgage Loan that is a Buydown Mortgage Loan:
(1)
On or before the date of origination of such Mortgage Loan, the Company and
the
Mortgagor, or the Company, the Mortgagor and the seller of the Mortgaged
Property or a third party entered into a Buydown Agreement. The Buydown
Agreement provides that the seller of the Mortgaged Property (or third party)
shall deliver to the Company temporary Buydown Funds in an amount equal to
the
aggregate undiscounted amount of payments that, when added to the amount the
Mortgagor on such Mortgage Loan is obligated to pay on each Due Date in
accordance with the terms of the Buydown Agreement, is equal to the full
scheduled Monthly Payment due on such Mortgage Loan. The temporary Buydown
Funds
enable the Mortgagor to qualify for the Buydown Mortgage Loan. The effective
interest rate of a Buydown Mortgage Loan if less than the interest rate set
forth in the related Mortgage Note will increase within the Buydown Period
as
provided in the related Buydown Agreement so that the effective interest rate
will be equal to the interest rate as set forth in the related Mortgage Note.
All Buydown Funds required to make the full payment of principal and interest
under each Buydown Loan are in the Buydown Account held by the Company in its
capacity
-40-
as
servicer. The Buydown Mortgage Loan satisfies the Underwriting Guidelines;
(2)
The Mortgage and Mortgage Note reflect the permanent payment terms rather than
the payment terms of the Buydown Agreement. The Buydown Agreement provides
for
the payment by the Mortgagor of the full amount of the Monthly Payment on any
Due Date that the Buydown Funds are not available. The Buydown Funds were not
used to reduce the original principal balance of the Mortgage Loan or to
increase the Appraised Value of the Mortgage Property when calculating the
Loan-to-Value Ratios for purposes of the Agreement;
(3)
The Buydown Funds may not be refunded to the Mortgagor unless the Mortgagor
makes a principal payment for the outstanding balance of the Mortgage Loan;
(4)
As of the date of origination of the Mortgage Loan, the provisions of the
related Buydown Agreement complied with the Underwriting Guidelines.
|
(xlvi)
|
Leasehold
Estates.
|
With
respect to each Mortgage Loan that is secured in whole or in part by the
interest of the mortgagor as a lessee under a ground lease of the related
Mortgaged Property (a “Ground
Lease”)
and not by a fee interest in such Mortgaged Property and as further specified
in
the Underwriting Guidelines:
(a)
The mortgagor is the owner of a valid and subsisting interest as tenant under
the Ground Lease;
(b)
The Ground Lease is in full force and effect, unmodified and not supplemented
by
any writing or otherwise;
(c)
The Company has not received notice of default by the mortgagor under the Ground
Lease or of circumstances which, with the passage of time or the giving of
notice or both, would constitute an event of default;
(d)
The term of the Ground Lease exceeds the maturity date of the related Mortgage
Loan by at least five (5) years;
(e)
The Ground Lease or a memorandum thereof has been recorded and by its terms
permits the leasehold estate to be mortgaged;
-41-
(f)
The Ground Lease does not contain any default provisions that could give rise
to
forfeiture or termination of the Ground Lease except for the non-payment of
the
Ground Lease rents;
(g)
The execution, delivery and performance of the Mortgage do not require the
consent (other than those consents which have been obtained and are in full
force and effect) under, and will not contravene any provision of or cause
a
default under, the Ground Lease; and
(h)
The Ground Lease provides that the leasehold can be transferred, mortgaged
and
sublet an unlimited number of times either without restriction or on payment
of
a reasonable fee and delivery of reasonable documentation to the lessor.
| (xlvii) |
Cooperative
Loans.
|
With
respect to each Cooperative Loan:
|
(a)
|
The
Cooperative Shares are held by a Person as a tenant-stockholder in
a
Cooperative. Each original UCC financing statement, continuation
statement
or other governmental filing or recordation necessary to create or
preserve the perfection and priority of the first lien and security
interest in the Cooperative Loan and Proprietary Lease has been timely
and
properly made. Any security agreement, chattel mortgage or equivalent
document related to the Cooperative Loan and delivered to Purchaser
or its
designee establishes in Purchaser a valid and subsisting perfected
first
lien on and security interest in the Mortgaged Property described
therein,
and Purchaser has full right to sell and assign the same;
|
|
(b)
|
A
Cooperative Lien Search has been made by a company competent to make
the
same which company is acceptable to Xxxxxx Xxx and qualified to do
business in the jurisdiction where the Cooperative is located;
|
|
(c)
|
(i)
The term of the related Proprietary Lease is not less than the terms
of
the Cooperative Loan; (ii) there is no provision in any Proprietary
Lease
which requires the Mortgagor to offer for sale the Cooperative Shares
owned by such Mortgagor first to the Cooperative; (iii) there is
no
prohibition in any Proprietary Lease against pledging the Cooperative
Shares or assigning the Proprietary Lease; (iv) the Cooperative has
been
created and exists in full compliance with the requirements for
residential cooperatives in the jurisdiction in which the Project
is
located and qualifies as a cooperative housing corporation
under
|
-42-
Section
210 of the Code; (v) the Recognition Agreement is on a form published by Aztech
Document Services, Inc. or includes similar provisions; and (vi) the Cooperative
has good and marketable title to the Project, and owns the Project either in
fee
simple or under a leasehold that complies with the requirements of Xxxxxx Xxx
or
Freddie Mac; such title is free and clear of any adverse liens or encumbrances,
except the lien of any blanket mortgage;
|
(d)
|
The
Company has the right under the terms of the Mortgage Note, Pledge
Agreement and Recognition Agreement to pay any maintenance charges
or
assessments owed by the Mortgagor; and
|
|
(e)
|
Each
Stock Power (i) has all signatures guaranteed or (ii) if all signatures
are not guaranteed, then such Cooperative Shares will be transferred
by
the stock transfer agent of the Cooperative if the Company undertakes
to
convert the ownership of the collateral securing the related Cooperative
Loan.
|
|
(xlviii)
|
Pledged
Asset Mortgage Loans.
|
With
respect to each Pledged Asset Mortgage Loan:
|
(a)
|
The
Pledge Holder has a rating of at least “AA” (or the equivalent) or better
from at least two Rating Agencies and the Pledge Holder is obligated
to
give the beneficiary of each Letter of Credit at least sixty (60)
days
notice of any non-renewal of any Letter of Credit;
|
|
(b)
|
With
respect to each Pledged Asset Mortgage Loan, the Company is the named
beneficiary and no Person has drawn any funds against such Letter
of
Credit;
|
|
(c)
|
Each
Letter of Credit is for an amount at least equal to 20% of the lesser
of
the Purchase Price or the Appraised Value of the related Mortgaged
Property;
|
|
(d)
|
As
of the Closing Date, the Company has complied with all the requirements
of
any Letter of Credit, and each Letter of Credit is a valid and enforceable
obligation of the Pledge Holder;
|
|
(e)
|
The
Company has the right to draw on each Letter of Credit if the related
Pledged Asset Mortgage Loan becomes 90 days or more delinquent and
to
apply such proceeds as a partial prepayment thereon;
|
-43-
|
(f)
|
The
Company has not received notice of any non-renewal of any Letter
of
Credit;
|
|
(g)
|
Upon
a default by the Pledge Holder, the Company will have a perfected
first
priority security interest in the assets pledged to secure the Letter
of
Credit and has the right to obtain possession thereof and the right
to
liquidate such assets and apply the proceeds thereof to prepay the
related
Pledged Asset Mortgage Loan; and
|
|
(h)
|
The
Letter of Credit is required to be in effect (either for its original
term
or through renewal) until such time as all amounts owed under the
related
Pledged Asset Mortgage Loan by the related Mortgagor are less than
80% of
the lesser of the Purchase Price or the Appraised Value of the related
Mortgaged Property.
|
|
(xlix)
|
Valid
Second Lien.
|
With
respect to any Second Lien Mortgage Loan, such Mortgage is a valid, subsisting
and enforceable second lien on the Mortgaged Property, including all buildings
on the Mortgaged Property and all installations and mechanical, electrical,
plumbing, heating and air conditioning systems located in or annexed to such
buildings, and all additions, alterations and replacements made at any time
with
respect to the foregoing. The lien of such Mortgage is subject only to:
|
(i)
|
the
lien of current real property taxes and assessments not yet due and
payable;
|
|
(ii)
|
superior
position mortgage lien(s) acceptable in accordance with the Underwriting
Guidelines;
|
| (iii) |
covenants,
conditions and restrictions, rights of way, easements and other matters
of
the public record as of the date of recording acceptable to mortgage
lending institutions in accordance with Accepted Servicing Practices
and
(i)
referred to or otherwise considered in the appraisal and (ii) which
do not
adversely affect the Appraised Value; 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.
|
-44-
Any
security agreement, chattel mortgage or equivalent document related to and
delivered in connection with such Mortgage Loan establishes and creates a valid,
subsisting, and enforceable second lien and second lien security interest on
the
property described therein and the Company has full right to sell and assign
the
same to the Purchaser. With respect to each Second Lien Mortgage Loan: (a)
the
first lien is in full force and effect, (b) there is no default, breach,
violation or event of acceleration existing under such first lien mortgage
or
the related mortgage note, (c) if the related first lien mortgage loan provides
for negative amortization, the LTV was calculated at the maximum principal
balance of such first lien that could result upon application of such negative
amortization feature, (d) either no consent for the Second Lien Mortgage Loan
is
required by the holder of the first lien or such consent has been obtained
and
is contained in the Mortgage File and (e) to the best of Company’s knowledge, 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
or
acceleration under the related first lien mortgage loan.
Section
3.03 Repurchase.
It
is understood and agreed that the representations and warranties set forth
in
Sections 3.01 and 3.02 shall survive the sale of the Mortgage Loans to the
Purchaser and the delivery of the Mortgage Loan Documents to the Custodian
and
shall inure to the benefit of the Purchaser, notwithstanding any restrictive
or
qualified endorsement on any Mortgage Note or Assignment of Mortgage or the
examination or failure to examine any Mortgage File. Upon discovery by either
the Company or the Purchaser of a breach of any of the foregoing representations
and warranties which materially and adversely affects the value of the Mortgage
Loans or the interest of the Purchaser (or which materially and adversely
affects the interests of the Purchaser in the related Mortgage Loan in the
case
of a representation and warranty relating to a particular Mortgage Loan), the
party discovering such breach shall give prompt written notice to the other.
Within
ninety (90) days of the earlier of either discovery by or notice to the Company
of any breach of a representation or warranty which materially and adversely
affects the value of the Mortgage Loans, (i) the Company shall use its best
efforts promptly to cure such breach in all material respects and (ii) if such
breach cannot be cured, the Company shall, at the Purchaser’s option, repurchase
the affected Mortgage Loan at the Repurchase Price. Notwithstanding anything
to
the contrary herein, any breach of the representations or warranties set forth
in clauses (xxxvii), (xxxix), (xl) or (xlii) of Section 3.02 shall be deemed
to
materially and adversely affect the value of the related Mortgage Loans and,
within ninety (90) days of the earlier of either discovery by or notice to
the
Company of such breach, the Company shall repurchase such Mortgage Loan at
the
Repurchase Price. In the event that a breach shall involve any representation
or
warranty set forth in Section 3.01, and such breach cannot be cured within
ninety (90) days of the earlier of either discovery by or notice to the Company
of such breach, all of
-45-
the
Mortgage Loans shall, at the Purchaser’s option, be repurchased by the Company
at the Repurchase Price. Any repurchase of a Mortgage Loan or Loans pursuant
to
the foregoing provisions of this Section 3.03 shall be accomplished by deposit
in the Custodial Account of the amount of the Repurchase Price as required
in
Section 4.04, for distribution to the Purchaser on the Remittance Date
immediately following the Principal Prepayment Period in which such Repurchase
Price is received, after deducting therefrom any amount received in respect
of
such repurchased Mortgage Loan or Loans and being held in the Custodial Account
for future distribution for application in accordance with Section 5.01.
If
pursuant to the foregoing provisions the Company repurchases a Mortgage Loan
that is a MERS Mortgage Loan, the Company shall either (i) cause MERS to execute
and deliver an assignment of the Mortgage in recordable form to transfer the
Mortgage from MERS to the Company on behalf of the Purchaser, and shall cause
such Mortgage to be removed from registration on the MERS®
System in accordance with MERS’ rules and regulations, or (ii) cause MERS to
designate on the MERS®
System the Purchaser as the beneficial holder with respect to such Mortgage
Loan.
At
the time of repurchase, the Purchaser and the Company shall arrange for the
reassignment of the repurchased Mortgage Loan to the Company and the delivery
to
the Company of any documents held by the Custodian relating to the repurchased
Mortgage Loan. In the event of a repurchase, the Company shall, simultaneously
with such reassignment, give written notice to the Purchaser that such
repurchase has taken place and amend the Mortgage Loan Schedule to reflect
the
withdrawal of the repurchased Mortgage Loan from this Agreement.
In
addition to such repurchase obligation, the Company shall indemnify the
Purchaser and hold it harmless against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments,
and other costs and expenses resulting from any claim, demand, defense or
assertion based on or grounded upon, or resulting from, a breach of the
Company’s representations and warranties contained in this Agreement. It is
understood and agreed that the obligations of the Company set forth in this
Section 3.03 to cure or repurchase a defective Mortgage Loan and to indemnify
the Purchaser as provided in this Section 3.03, constitute the sole remedies
of
the Purchaser respecting a breach of the foregoing representations and
warranties.
Any
cause of action against the Company relating to or arising out of the breach
of
any representations and warranties made in Sections 3.01 and 3.02 shall accrue
as to any Mortgage Loan upon the earliest of (i) discovery of such breach by
the
Company or the Purchaser or notice thereof by the Purchaser to the Company,
(ii)
failures by the Company to cure such breach or repurchase such Mortgage Loan
as
specified above, and (iii) demand upon the Company by the Purchaser for
compliance with this Agreement.
-46-
ARTICLE
IV
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
Section
4.01 Company
to Act as Servicer.
The
Company, as an independent contractor, shall service and administer the Mortgage
Loans and shall have full power and authority, acting alone or through the
utilization of a Subservicer or Subcontractor, to do any and all things in
connection with such servicing and administration which the Company may deem
necessary or desirable, consistent with the terms of this Agreement and with
Accepted Servicing Practices. The Company shall service the Mortgage Loans
in
accordance with the guidelines of the applicable governing agency, including
the
Federal Housing Administration for FHA Mortgage Loans, the Veteran’s
Administration for VA Mortgage Loans, RHS for RHS Mortgage Loans, and the
Accepted Servicing Practices with respect to the Conventional Mortgage Loans
and
shall comply with all the rules and regulations as set forth by each applicable
agency provided that in the event the guidelines of FHA or VA conflict with
the
Servicing Guidelines of Freddie Mac, the Company shall service the loans in
accordance with the guidelines of FHA or VA, as applicable.
Consistent
with the terms of this Agreement and any applicable FHA, VA or RHS guidelines
or
the Servicing Guides and subject to the REMIC Provisions if the Mortgage Loans
have been transferred to a REMIC, the Company may waive, modify or vary any
term
of any Mortgage Loan or consent to the postponement of strict compliance with
any such term or in any manner grant indulgence to any Mortgagor if in the
Company’s reasonable and prudent determination such waiver, modification,
postponement or indulgence is not materially adverse to the Purchaser and,
with
respect to the Non-Conventional Mortgage Loans, will not result in the
impairment of coverage under the MIC or LGC or Loan Note Guarantee, as
applicable. In the event of any such modification which permits the deferral
of
interest or principal payments on any Mortgage Loan, the Company shall, on
the
Business Day immediately preceding the Remittance Date in any month in which
any
such principal or interest payment has been deferred, deposit in the Custodial
Account from its own funds, in accordance with Section 5.03, the difference
between (a) such month’s principal and one month’s interest at the Mortgage Loan
Remittance Rate on the unpaid principal balance of such Mortgage Loan and (b)
the amount paid by the Mortgagor. The Company shall be entitled to reimbursement
for such advances to the same extent as for all other advances made pursuant
to
Section 5.03. Without limiting the generality of the foregoing, the Company
shall continue, and is hereby authorized and empowered, to execute and deliver
on behalf of itself and the Purchaser, all instruments of satisfaction or
cancellation, or of partial or full release, discharge and all other comparable
instruments, with respect to the Mortgage Loans and with respect to the
Mortgaged Properties. If reasonably required by the Company, the Purchaser
shall
furnish the Company with any powers of attorney and other documents necessary
or
appropriate to enable the Company to carry out its servicing and administrative
duties under this Agreement.
-47-
In
servicing and administering the Mortgage Loans, the Company shall employ
procedures (including collection procedures) and exercise the same care that
it
customarily employs and exercises in servicing and administering mortgage loans
for its own account, giving due consideration to Accepted Servicing Practices
where such practices do not conflict with the requirements of this Agreement
and
the Purchaser’s reliance on the Company.
The
Company is authorized and empowered by the Purchaser, in its own name, when
the
Company believes it appropriate in its reasonable judgment to register any
Mortgage Loan on the MERS®
System, or cause the removal from the registration of any Mortgage Loan on
the
MERS®
System, to execute and deliver, on behalf of the Purchaser, any and all
instruments of assignment and other comparable instruments with respect to
such
assignment or re-recording of a Mortgage in the name of MERS, solely as nominee
for the Purchaser and its successors and assigns. The Company will comply in
all
material respects with the rules and procedures of MERS in connection with
the
servicing of the MERS Mortgage Loans for as long as such Mortgage Loans are
registered with MERS and the Company will remain in good standing with MERS.
The
Company shall cause to be maintained for each Cooperative Loan a copy of the
financing statements and shall file any such financing statements and
continuation statements as necessary, in accordance with the Uniform Commercial
Code applicable in the jurisdiction in which the related Cooperative Apartment
is located, to perfect and protect the security interest and lien of the
Purchaser.
Section
4.02 Liquidation
of Mortgage Loans.
In
the event that any payment due under any Mortgage Loan and not postponed
pursuant to Section 4.01 is not paid when the same becomes due and payable,
or
in the event that the Mortgagor fails to perform any other covenant or
obligation under the Mortgage Loan and such failure continues beyond any
applicable grace period, the Company shall take such action as (1) the Company
would take under similar circumstances with respect to a similar mortgage loan
held for its own account for investment, (2) shall be consistent with Accepted
Servicing Practices, and (3) the Company shall determine prudently to be in
the
best interest of the Purchaser. In the event that any payment due under any
Mortgage Loan is not postponed pursuant to Section 4.01 and remains delinquent
for a period of ninety (90) days or any other default continues for a period
of
ninety (90) days beyond the expiration of any grace or cure period, the Company
shall commence foreclosure proceedings, the Company shall notify the Purchaser
in writing of the Company’s intention to do so, and the Company shall not
commence foreclosure proceedings if the Purchaser objects to such action within
three (3) Business Days of receiving such notice. In the event that the
Purchaser objects to such foreclosure action, to the extent consistent with,
with respect to the Non-Conventional Mortgage Loans, FHA, VA or RHS guidelines
or the Servicing Guides, as applicable, or with respect to Conventional Mortgage
Loans, Section 5.03, the Company shall not be required to make Monthly Advances
with respect to such Mortgage Loan, pursuant to Section 5.03, and the Company’s
obligation to make such Monthly Advances shall terminate on the 90th day
referred to above. In such connection, the Company shall
-48-
from
its own funds make all necessary and proper Servicing Advances; provided,
however,
that the Company shall not be required to expend its own funds in connection
with any foreclosure or towards the restoration or preservation of any Mortgaged
Property, unless it shall determine (a) that such preservation, restoration
and/or foreclosure will increase the proceeds of liquidation of the Mortgage
Loan to the Purchaser after reimbursement to itself for such expenses and (b)
that such expenses will be recoverable by it either through Liquidation Proceeds
(respecting which it shall have priority for purposes of withdrawals from the
Custodial Account pursuant to Section 4.05) or through Insurance Proceeds
(respecting which it shall have similar priority).
Notwithstanding
anything to the contrary contained herein, in connection with a foreclosure
or
acceptance of a deed in lieu of foreclosure, in the event that the Company
has
reasonable cause to believe that a Mortgaged Property is contaminated by
hazardous or toxic substances or wastes, or if the Purchaser otherwise requests
an environmental inspection or review of such Mortgaged Property, such an
inspection or review is to be conducted by a qualified inspector. The cost
for
such inspection or review shall be borne by the Purchaser. Upon completion
of
the inspection or review, the Company shall promptly provide the Purchaser
with
a written report of the environmental inspection.
After
reviewing the environmental inspection report, the Purchaser shall determine
how
the Company shall proceed with respect to the Mortgaged Property. In the event
that (a) the environmental inspection report indicates that the Mortgaged
Property is contaminated by hazardous or toxic substances or wastes and (b)
the
Purchaser directs the Company to proceed with foreclosure or acceptance of
a
deed in lieu of foreclosure, the Company shall be reimbursed for all reasonable
costs associated with such foreclosure or acceptance of a deed in lieu of
foreclosure and any related environmental clean up costs, as applicable, from
the related Liquidation Proceeds, or if the Liquidation Proceeds are
insufficient to fully reimburse the Company, the Company shall be entitled
to be
reimbursed from amounts in the Custodial Account pursuant to Section 4.05
hereof. In the event that the Purchaser directs the Company not to proceed
with
foreclosure or acceptance of a deed in lieu of foreclosure, the Company shall
be
reimbursed for all Servicing Advances made with respect to the related Mortgaged
Property from the Custodial Account pursuant to Section 4.05 hereof.
Section
4.03 Collection
of Mortgage Loan Payments.
Continuously
from the date hereof until the principal and interest on all Mortgage Loans
are
paid in full, the Company shall proceed diligently to collect all payments
due
under each of the Mortgage Loans when the same shall become due and payable
in
accordance with Accepted Servicing Practices and shall take special care in
ascertaining and estimating Escrow Payments and all other charges that will
become due and payable with respect to the Mortgage Loan and the Mortgaged
Property, to the end that the installments payable by the Mortgagors will be
sufficient to pay such charges as and when they become due and payable.
-49-
Section
4.04 Establishment
of and Deposits to Custodial Account.
The
Company shall segregate and hold all funds collected and received pursuant
to a
Mortgage Loan or a Letter of Credit separate and apart from any of its own
funds
and general assets and shall establish and maintain one or more Custodial
Accounts, in the form of time deposit or demand accounts, entitled “Xxxxx Fargo
Bank, N.A., in trust for the Purchaser of Residential Mortgage Loans serviced
under the Amended and Restated Master Seller’s Warranties and Servicing
Agreement, dated as of March 1, 2006 - P & I,” or as otherwise directed in
writing by the Purchaser or its assigns after the related Closing Date in
connection with any Whole Loan Transfer or Securitization Transaction. The
Custodial Account shall be established with a Qualified Depository. Upon request
of the Purchaser and within ten (10) days thereof, the Company shall provide
the
Purchaser with written confirmation of the existence of such Custodial Account.
The Custodial Account shall at all times be insured to the fullest extent
allowed by Applicable Law. Funds deposited in the Custodial Account may be
drawn
on by the Company in accordance with Section 4.05.
The
Company shall deposit in the Custodial Account within one (1) Business Day
(or
two (2) Business Days in the case of the amounts described in clauses (3)
through (5) below) of the Company’s receipt, and retain therein, the following
collections received by the Company and payments made by the Company after
each
Cut-off Date, other than payments of principal and interest due on or before
such Cut-off Date:
|
(1)
|
all
payments on account of principal on the Mortgage Loans, including
all
Principal Prepayments;
|
|
(2)
|
all
payments on account of interest on the Mortgage Loans, adjusted to
the
Mortgage Loan Remittance Rate;
|
|
(3)
|
all
Liquidation Proceeds;
|
|
(4)
|
all
Insurance Proceeds, including amounts required to be deposited pursuant
to
Section 4.10 (other than proceeds to be held in the Escrow Account
and
applied to the restoration or repair of the Mortgaged Property or
released
to the Mortgagor in accordance with Section 4.14), Section 4.11 and
Section 4.15;
|
|
(5)
|
all
Condemnation Proceeds which are not applied to the restoration or
repair
of the Mortgaged Property or released to the Mortgagor in accordance
with
Section 4.14;
|
|
(6)
|
any
amount required to be deposited in the Custodial Account pursuant
to
Section 4.01, 5.01, 5.03, 6.01 or 6.02;
|
|
(7)
|
any
amounts payable in connection with the repurchase of any Mortgage
Loan
pursuant to Section 2.03, 3.03 or 6.02;
|
-50-
|
(8)
|
with
respect to each Principal Prepayment an amount (to be paid by the
Company
out of its funds) which, when added to all amounts allocable to interest
received in connection with the Principal Prepayment, equals one
month’s
interest on the amount of principal so prepaid at the Mortgage Loan
Remittance Rate;
|
|
(9)
|
any
amounts required to be deposited by the Company pursuant to Section
4.11
in connection with the deductible clause in any blanket hazard insurance
policy;
|
|
(10)
|
any
amounts received with respect to or related to any REO Property and
all
REO Disposition Proceeds pursuant to Section 4.16;
|
|
(11)
|
an
amount from the Buydown Account that when added to the Mortgagor’s payment
will equal the full monthly amount due under the related Mortgage
Note;
|
|
(12)
|
an
amount from the Subsidy Account that when added to the Mortgagor’s payment
will equal the full monthly amount due under the related Mortgage
Note;
|
|
(13)
|
with
respect to a Pledged Asset Mortgage Loan, any amounts required to
be
deposited by the Company pursuant to Section 4.25 of this Agreement
in
connection with a Letter of Credit; and
|
|
(14)
|
all
amounts representing proceeds of any PMI Policy.
|
The
foregoing requirements for deposit into the Custodial Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of late payment charges and assumption
fees, to the extent permitted by Section 6.01, need not be deposited by the
Company into the Custodial Account. Any interest paid on funds deposited in
the
Custodial Account by the depository institution shall accrue to the benefit
of
the Company and the Company shall be entitled to retain and withdraw such
interest from the Custodial Account pursuant to Section 4.05. The Company shall
reimburse the Custodial Account for any losses incurred as a result of the
Company’s investment of any amounts on deposit in the Custodial Account.
Section
4.05 Permitted
Withdrawals From Custodial Account.
The
Company shall, from time to time, withdraw funds from the Custodial Account
for
the following purposes:
|
(1)
|
to
make payments to the Purchaser in the amounts and in the manner provided
for in Section 5.01;
|
|
(2)
|
to
reimburse itself for Monthly Advances of the Company’s funds made pursuant
to Section 5.03, the Company’s right to reimburse itself
pursuant
|
-51-
to
this subclause (2) being limited to amounts received on the related Mortgage
Loan which represent late payments of principal and/or interest respecting
which
any such advance was made, it being understood that, in the case of any such
reimbursement, the Company’s right thereto shall be prior to the rights of the
Purchaser, except that, where the Company is required to repurchase a Mortgage
Loan pursuant to Section 2.03, 3.03 or 6.02, the Company’s right to such
reimbursement shall be subsequent to the payment to the Purchaser of the
Repurchase Price pursuant to such sections and all other amounts required to
be
paid to the Purchaser with respect to such Mortgage Loan;
|
(3)
|
to
reimburse itself for unreimbursed Servicing Advances, and for any
unpaid
Servicing Fees, the Company’s right to reimburse itself pursuant to this
subclause (3) with respect to any Mortgage Loan being limited to
related
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds and
such
other amounts as may be collected by the Company from the Mortgagor
or
otherwise relating to the Mortgage Loan, it being understood that,
in the
case of any such reimbursement, the Company’s right thereto shall be prior
to the rights of the Purchaser, except that where the Company is
required
to repurchase a Mortgage Loan pursuant to Section 2.03, 3.03 or 6.02,
in
which case the Company’s right to such reimbursement shall be subsequent
to the payment to the Purchaser of the Repurchase Price pursuant
to such
sections and all other amounts required to be paid to the Purchaser
with
respect to such Mortgage Loan;
|
|
(4)
|
to
pay itself as servicing compensation any interest on funds deposited
in
the Custodial Account;
|
|
(5)
|
to
reimburse itself for expenses incurred to the extent reimbursable
pursuant
to Section 8.01;
|
|
(6)
|
to
pay any amount required to be paid pursuant to Section 4.16 related
to any
REO Property, it being understood that, in the case of any such
expenditure or withdrawal related to a particular REO Property, the
amount
of such expenditure or withdrawal from the Custodial Account shall
be
limited to amounts on deposit in the Custodial Account with respect
to the
related REO Property;
|
|
(7)
|
to
reimburse itself for any Servicing Advances or REO expenses after
liquidation of the Mortgaged Property not otherwise reimbursed above;
|
|
(8)
|
to
reimburse the trustee with respect to any Securitization Transaction
for
any unreimbursed Monthly Advances or Servicing Advances made by the
trustee, as applicable, the right to reimbursement pursuant to this
subclause (8) with respect to any Mortgage Loan being limited to
related
Liquidation Proceeds, proceeds of REO Dispositions, Condemnation
Proceeds,
Insurance Proceeds and such other amounts as may be
collected
|
-52-
by
the Company from the Mortgagor or otherwise relating to the Mortgage Loan,
it
being understood that, in the case of such reimbursement, such trustee’s right
thereto shall be prior to the rights of the Company to reimbursement under
subclause (2) and (3) above, and prior to the rights of the Purchaser under
subclause (1) above;
|
(9)
|
to
remove funds inadvertently placed in the Custodial Account by the
Company;
|
|
(10)
|
to
clear and terminate the Custodial Account upon the termination of
this
Agreement;
|
|
(11)
|
to
reimburse the Purchaser from its own funds without reimbursement
for any
losses on amounts in deposit in the Custodial Account which were
invested
in Permitted Investments; and
|
|
(12)
|
to
apply the proceeds of PMI Policy as if such proceeds were payments
on, or
Liquidation Proceeds of, the related Mortgage Loan, as the case may
be.
|
In
the event that the Custodial Account is interest bearing, on each Remittance
Date, the Company shall withdraw all interest earned on funds on deposit in
the
Custodial Account. The Company may use such withdrawn funds only for the
purposes described in this Section 4.05.
Section
4.06 Establishment
of and Deposits to Escrow Account.
The
Company shall segregate and hold all funds collected and received pursuant
to a
Mortgage Loan constituting Escrow Payments separate and apart from any of its
own funds and general assets and shall establish and maintain one or more Escrow
Accounts, in the form of time deposit or demand accounts, titled, “Xxxxx Fargo
Bank, N.A., in trust for the Purchaser under the Amended and Restated Master
Seller’s Warranties and Servicing Agreement dated as of March 1, 2006 and/or
subsequent purchasers of Mortgage Loans, and various Mortgagors - T & I.”
The Escrow Accounts shall be established with a Qualified Depository, in a
manner which shall provide maximum available insurance thereunder. Upon request
of the Purchaser and within ten (10) days thereof, the Company shall provide
the
Purchaser with written confirmation of the existence of such Escrow Account.
Funds deposited in the Escrow Account may be drawn on by the Company in
accordance with Section 4.07.
The
Company shall deposit in the Escrow Account or Accounts within two (2) Business
Days of the Company’s receipt, and retain therein:
|
(1)
|
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;
|
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|
(2)
|
all
amounts representing Insurance Proceeds or Condemnation Proceeds
which are
to be applied to the restoration or repair of any Mortgaged
Property;
|
|
(3)
|
all
payments on account of Buydown Funds; and
|
|
(4)
|
all
Servicing Advances for Mortgagors whose Escrow Payments are insufficient.
|
The
Company shall make withdrawals from the Escrow Account only to effect such
payments as are required under this Agreement, as set forth in Section 4.07.
The
Company shall be entitled to retain any interest paid on funds deposited in
the
Escrow Account by the depository institution, other than interest on escrowed
funds required by law to be paid to the Mortgagor. To the extent required by
law, the Company shall pay interest on escrowed funds to the Mortgagor
notwithstanding that the Escrow Account may be non-interest bearing or that
interest paid thereon is insufficient for such purposes. The Company shall
reimburse the Escrow Account for any losses incurred as a result of the
Company’s investment of any amount on deposit in the Escrow Account.
Section
4.07 Permitted
Withdrawals From Escrow Account.
Withdrawals
from the Escrow Account or Accounts may be made by the Company only:
|
(1)
|
to
effect timely payments of ground rents, taxes, assessments, water
rates,
mortgage insurance premiums, condominium charges, fire and hazard
insurance premiums or other items constituting Escrow Payments for
the
related Mortgage;
|
|
(2)
|
to
reimburse the Company for any Servicing Advances made by the Company
pursuant to Section 4.08 with respect to a related Mortgage Loan,
but only
from amounts received on the related Mortgage Loan which represent
late
collections of Escrow Payments thereunder;
|
|
(3)
|
to
refund to any Mortgagor any funds found to be in excess of the amounts
required under the terms of the related Mortgage Loan;
|
|
(4)
|
for
transfer to the Custodial Account and application to reduce the principal
balance of the related Mortgage Loan in accordance with the terms
of the
related Mortgage and Mortgage Note;
|
|
(5)
|
for
application to restoration or repair of the Mortgaged Property in
accordance with the procedures outlined in Section 4.14;
|
|
(6)
|
to
pay to the Company, or any Mortgagor to the extent required by law,
any
interest paid on the funds deposited in the Escrow Account;
|
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|
(7)
|
to
remove funds inadvertently placed in the Escrow Account by the
Company;
|
|
(8)
|
to
clear and terminate the Escrow Account on the termination of this
Agreement; and
|
|
(9)
|
to
remit to Purchaser payments on account of Buydown Funds as applicable.
|
Section
4.08 Payment
of Taxes, Insurance and Other Charges.
With
respect to each Mortgage Loan, the Company shall maintain accurate records
reflecting the status of ground rents, taxes, assessments, water rates, sewer
rents, and other charges which are or may become a lien upon the Mortgaged
Property and 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, employing for such purpose deposits of the Mortgagor in the Escrow Account
which shall have been estimated and accumulated by the Company in amounts
sufficient for such purposes, as allowed under the terms of the Mortgage. The
Company assumes full responsibility for the timely payment of all such bills
and
shall effect timely payment of all such charges irrespective of each Mortgagor’s
faithful performance in the payment of same or the making of the Escrow
Payments, and the Company shall make advances from its own funds to effect
such
payments.
Section
4.09 Protection
of Accounts.
The
Company may transfer the Custodial Account, Buydown Account, Subsidy Account
or
the Escrow Account to a different Qualified Depository from time to time, upon
prior written notice to the Purchaser.
Section
4.10 Maintenance
of Hazard Insurance.
The
Company shall cause to be maintained for each Mortgage Loan hazard insurance
such that all buildings upon the Mortgaged Property are insured by an insurer
acceptable to Xxxxxx Xxx or Freddie Mac, or with respect to the Non-Conventional
Mortgage Loans, GNMA or VA, as applicable, against loss by fire, hazards of
extended coverage and such other hazards as are customary in the area where
the
Mortgaged Property is located, in an amount which is at least equal to the
lesser of (a) 100% of the insurable value, on a replacement cost basis, of
the
improvements on the related Mortgaged Property or (b) the greater of (i) the
outstanding principal balance of the Mortgage Loan and (ii) an amount such
that
the proceeds of such insurance shall be sufficient to prevent the application
to
the Mortgagor or the loss payee of any coinsurance clause under the policy.
In
the event a hazard insurance policy shall be in danger of being terminated,
or
in the event the insurer shall cease to be acceptable to Xxxxxx Xxx or Freddie
Mac, or with respect to the Non-Conventional Mortgage Loans, GNMA or VA, as
applicable, the Company shall notify the Purchaser and the related Mortgagor,
and shall use its best efforts, as permitted by Applicable Law, to obtain from
another
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Qualified
Insurer a replacement hazard insurance policy substantially and materially
similar in all respects to the original policy. In no event, however, shall
a
Mortgage Loan be without a hazard insurance policy at any time, subject only
to
Section 4.11 hereof.
If
upon origination of the Mortgage Loan, the related Mortgaged Property was
located in an area identified by the Flood Emergency Management Agency as having
special flood hazards (and such flood insurance has been made available) a
flood
insurance policy meeting the requirements of the current guidelines of the
Federal Insurance Administration is in effect with a generally acceptable
insurance carrier acceptable to Xxxxxx Xxx, Freddie Mac or, with respect to
the
Non-Conventional Mortgage Loans, GNMA, in an amount representing coverage equal
to the lesser of (i) the minimum amount required, under the terms of coverage,
to compensate for any damage or loss on a replacement cost basis (or the unpaid
balance of the related Mortgage if replacement cost coverage is not available
for the type of building insured) and (ii) the maximum amount of insurance
which
is available under the Flood Disaster Protection Act of 1973, as amended. If
at
any time during the term of the Mortgage Loan, the Company determines in
accordance with applicable law that a Mortgaged Property is located in a special
flood hazard area and is not covered by flood insurance or is covered in an
amount less than the amount required by the Flood Disaster Protection Act of
1973, as amended, the Company shall notify the related Mortgagor that the
Mortgagor must obtain such flood insurance coverage, and if said Xxxxxxxxx
fails
to obtain the required flood insurance coverage within forty-five (45) days
after such notification, the Company shall immediately force place the required
flood insurance on the Mortgagor’s behalf.
If
a Mortgage is secured by a unit in a condominium project, the Company shall
verify that the coverage required of the owner’s association, including hazard,
flood, liability, and fidelity coverage, is being maintained in accordance
with
then current Xxxxxx Xxx, Freddie Mac or, with respect to the Non-Conventional
Mortgage Loans, GNMA requirements, secure from the owner’s association its
agreement to notify the Company promptly of any change in the insurance coverage
or of any condemnation or casualty loss that may have a material effect on
the
value of the Mortgaged Property as security.
In
the event that any Purchaser or the Company shall determine that the Mortgaged
Property should be insured against loss or damage by hazards and risks not
covered by the insurance required to be maintained by the Mortgagor pursuant
to
the terms of the Mortgage, the Company shall communicate and consult with the
Mortgagor with respect to the need for such insurance and bring to the
Mortgagor’s attention the required amount of coverage for the Mortgaged Property
and if the Mortgagor does not obtain such coverage, the Company shall
immediately force place the required coverage on the Mortgaged Property.
All
policies required hereunder shall name the Company as loss payee and shall
be
endorsed with standard or union mortgagee clauses, without contribution, which
shall provide for at least thirty (30) days prior written notice of any
cancellation, reduction in amount or material change in coverage.
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The
Company shall not interfere with the Mortgagor’s freedom of choice in selecting
either his insurance carrier or agent; provided,
however,
that the Company shall not accept any such insurance policies from insurance
companies unless such companies are acceptable to Xxxxxx Xxx, Freddie Mac or,
with respect to the Non-Conventional Mortgage Loans, GNMA and are licensed
to do
business in the jurisdiction in which the Mortgaged Property is located. The
Company shall determine that such policies provide sufficient risk coverage
and
amounts, that they insure the property owner, and that they properly describe
the property address.
Pursuant
to Section 4.04, any amounts collected by the Company under any such policies
(other than amounts to be deposited in the Escrow Account and applied to the
restoration or repair of the related Mortgaged Property, or property acquired
in
liquidation of the Mortgage Loan, or to be released to the Mortgagor, in
accordance with the Company’s normal servicing procedures as specified in
Section 4.14) shall be deposited in the Custodial Account subject to withdrawal
pursuant to Section 4.05.
Section
4.11 Maintenance
of Mortgage Impairment Insurance.
In
the event that the Company shall obtain and maintain a blanket policy insuring
against losses arising from fire and hazards covered under extended coverage
on
all of the Mortgage Loans, then to the extent such policy provides coverage
in
an amount equal to the amount required pursuant to Section 4.10 and otherwise
complies with all other requirements of Section 4.10, it shall conclusively
be
deemed to have satisfied its obligations as set forth in Section 4.10. The
Company shall prepare and make any claims on the blanket policy as deemed
necessary by the Company in accordance with Accepted Servicing Practices. Any
amounts collected by the Company under any such policy relating to a Mortgage
Loan shall be deposited in the Custodial Account subject to withdrawal pursuant
to Section 4.05. Such policy may contain a deductible clause, in which case,
in
the event that there shall not have been maintained on the related Mortgaged
Property a policy complying with Section 4.10, and there shall have been a
loss
which would have been covered by such policy, the Company shall deposit in
the
Custodial Account at the time of such loss the amount not otherwise payable
under the blanket policy because of such deductible clause, such amount to
be
deposited from the Company’s funds, without reimbursement therefor. Upon request
of any Purchaser, the Company shall cause to be delivered to such Purchaser
a
certified true copy of such policy and a statement from the insurer thereunder
that such policy shall in no event be terminated or materially modified without
thirty (30) days’ prior written notice to such Purchaser.
Section
4.12 Maintenance
of Fidelity Bond and Errors and Omissions Insurance.
The
Company shall maintain with responsible companies, at its own expense, a blanket
Fidelity Bond and an Errors and Omissions Insurance Policy, with broad coverage
on all officers, employees or other persons acting in any capacity requiring
such persons to handle funds, money, documents or papers relating to the
Mortgage Loans (“Company Employees”). Any such Fidelity Bond and Errors and
Omissions Insurance Policy shall be in the form of the Mortgage Banker’s Blanket
Bond and shall protect and
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insure
the Company against losses, including forgery, theft, embezzlement, fraud,
errors and omissions and negligent acts of such Company Employees. Such Fidelity
Bond and Errors and Omissions Insurance Policy shall also protect and insure
the
Company against losses in connection with the release or satisfaction of a
Mortgage Loan without having obtained payment in full of the indebtedness
secured thereby. No provision of this Section 4.12 requiring such Fidelity
Bond
and Errors and Omissions Insurance Policy shall diminish or relieve the Company
from its duties and obligations as set forth in this Agreement. The minimum
coverage under any such bond and insurance policy shall be at least equal to
the
amounts acceptable to Xxxxxx Xxx, Freddie Mac, or, with respect to the
Non-Conventional Mortgage Loans, GNMA or VA, as applicable. Upon the request
of
any Purchaser, the Company shall cause to be delivered to such Purchaser a
certified true copy of such fidelity bond and insurance policy and a statement
from the surety and the insurer that such fidelity bond and insurance policy
shall in no event be terminated or materially modified without thirty (30)
days’
prior written notice to the Purchaser.
Section
4.13 Inspections.
If
any Mortgage Loan is more than sixty (60) days delinquent, the Company or its
agent immediately shall inspect the Mortgaged Property and shall conduct
subsequent inspections in accordance with Accepted Servicing Practices or as
may
be required by the primary mortgage guaranty insurer. The Company shall keep
a
written report of each such inspection.
Section
4.14 Restoration
of Mortgaged Property.
The
Company need not obtain the approval of the Purchaser prior to releasing any
Insurance Proceeds or Condemnation Proceeds to the Mortgagor to be applied
to
the restoration or repair of the Mortgaged Property, if such release is in
accordance with Accepted Servicing Practices. For claims greater than the lesser
of $15,000 or, with respect to the Non-Conventional Mortgage Loans, any amount
prescribed by applicable FHA, VA or RHS guidelines, at a minimum the Company
shall comply with the following conditions in connection with any such release
of Insurance Proceeds or Condemnation Proceeds:
|
(i)
|
The
Company shall receive satisfactory independent verification of completion
of repairs and issuance of any required approvals with respect thereto;
|
|
(ii)
|
the
Company shall take all steps necessary to preserve the priority of
the
lien of the Mortgage, including, but not limited to requiring waivers
with
respect to mechanics’ and materialmen’s liens;
|
|
(iii)
|
the
Company shall verify that the Mortgage Loan is not in default; and
|
|
(iv)
|
pending
repairs or restoration, the Company shall place the Insurance Proceeds
or
Condemnation Proceeds in the Escrow Account.
|
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If
the Purchaser is named as an additional loss payee, the Company is hereby
empowered to endorse any loss draft issued in respect of such a claim in the
name of the Purchaser.
Section
4.15 Claims.
In
connection with its activities as servicer, the Company agrees to prepare and
present, on behalf of itself and the Purchaser, claims to the insurer under
any
MIC or LGC or Loan Note Guarantee in a timely fashion and, in this regard,
to
take such action as shall be necessary to permit recovery respecting a defaulted
Mortgage Loan. Pursuant to Section 4.04, any amounts collected by the Company
under any guaranty shall be deposited in the Custodial Account, subject to
withdrawal pursuant to Section 4.05.
Section
4.16 Title,
Management and Disposition of REO Property.
In
the event that title to any Mortgaged Property is acquired in foreclosure or
by
deed in lieu of foreclosure, the deed or certificate of sale shall be taken
in
the name of the Company, or in the event the Company 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, or the perfection of the ownership or
security interest of the Purchaser in such REO Property would be adversely
effected, 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 Company from any attorney duly licensed to practice law in the state where
the REO Property is located. The Person or Persons holding such title other
than
the Purchaser shall acknowledge in writing that such title is being held as
nominee for the Purchaser.
The
Company shall manage, conserve, protect and operate each REO Property for the
Purchaser solely for the purpose of its prompt disposition and sale. The
Company, either itself or through an agent selected by the Company, shall
manage, conserve, protect and operate the REO Property in the same manner that
it manages, conserves, protects and operates other foreclosed property for
its
own account, and in the same manner that similar property in the same locality
as the REO Property is managed. The Company shall attempt to sell the same
(and
may temporarily rent the same for a period not greater than one year, except
as
otherwise provided below) on such terms and conditions as the Company deems
to
be in the best interest of the Purchaser.
The
Company shall use its best efforts to dispose of the REO Property as soon as
possible and shall sell such REO Property in any event prior to the close of
the
third calendar year beginning after the year in which title has been taken
to
such REO Property, unless (i) a REMIC election has not been made with respect
to
the arrangement under which the Mortgage Loans and the REO Property are held,
and (ii) the Company determines, and gives an appropriate notice to the
Purchaser to such effect, that a longer period is necessary for the orderly
liquidation of such REO Property. If a period longer than one year is permitted
under the foregoing sentence and is necessary to sell any REO Property, (i)
the
Company shall report monthly to the Purchaser as to the progress being made
in
selling such REO Property and (ii) if, with the written consent of the
Purchaser, a
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purchase
money mortgage is taken in connection with such sale, such purchase money
mortgage shall name the Company as mortgagee, and such purchase money mortgage
shall not be held pursuant to this Agreement, but instead a separate
participation agreement among the Company and the Purchaser shall be entered
into with respect to such purchase money mortgage.
The
Company shall also maintain on each REO Property fire and hazard insurance
with
extended coverage in amount which is at least equal to the maximum insurable
value of the improvements which are a part of such property and, to the extent
required and available under the Flood Disaster Protection Act of 1973, as
amended, flood insurance in the amount required above.
The
disposition of REO Property shall be carried out by the Company at such price,
and upon such terms and conditions, as the Company deems to be in the best
interests of the Purchaser. The proceeds of sale of the REO Property shall
be
promptly deposited in the Custodial Account. As soon as practical thereafter,
the expenses of such sale shall be paid and the Company shall reimburse itself
for any related unreimbursed Servicing Advances, unpaid Servicing Fees and
unreimbursed advances made pursuant to Section 5.03. On the Remittance Date
immediately following the Principal Prepayment Period in which such sale
proceeds are received, the net cash proceeds of such sale remaining in the
Custodial Account shall be distributed to the Purchaser.
The
Company shall withdraw the Custodial Account funds necessary for the proper
operation management and maintenance of the REO Property, including the cost
of
maintaining any hazard insurance pursuant to Section 4.10 and the fees of any
managing agent of the Company, or the Company itself. The Company shall make
monthly distributions on each Remittance Date to the Purchaser of the net cash
flow from the REO Property (which shall equal the revenues from such REO
Property net of the expenses described in the Section 4.16 and of any reserves
reasonably required from time to time to be maintained to satisfy anticipated
liabilities for such expenses).
Section
4.17 Real
Estate Owned Reports.
Together
with the statement furnished pursuant to Section 5.02, the Company shall furnish
to the Purchaser on or before the Remittance Date each month a statement with
respect to any REO Property covering the operation of such REO Property for
the
previous month and the Company’s efforts in connection with the sale of such REO
Property and any rental of such REO Property incidental to the sale thereof
for
the previous month. That statement shall be accompanied by such other
information as the Purchaser shall reasonably request.
Section
4.18 Liquidation
Reports.
Upon
the foreclosure sale of any Mortgaged Property or the acquisition thereof by
the
Purchaser pursuant to a deed in lieu of foreclosure, the Company shall submit
to
the Purchaser a liquidation report with respect to such Mortgaged Property.
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Section
4.19 Reports
of Foreclosures and Abandonments of Mortgaged Property.
Following
the foreclosure sale or abandonment of any Mortgaged Property, the Company
shall
report such foreclosure or abandonment as required pursuant to Section 6050J
of
the Code. The Company shall file information reports with respect to the receipt
of mortgage interest received in a trade or business and information returns
relating to cancellation of indebtedness income with respect to any Mortgaged
Property as required by the Code. Such reports shall be in form and substance
sufficient to meet the reporting requirements imposed by the Code.
Section
4.20 Fair
Credit Reporting Act.
The
Company, in its capacity as servicer for each Mortgage Loan, agrees to fully
furnish, in accordance with the Fair Credit Reporting Act and its implementing
regulations, accurate and complete information (e.g.,
favorable and unfavorable) on its borrower credit files to Equifax, Experian
and
Trans Union Credit Information Company (three of the credit repositories),
on a
monthly basis.
Section
4.21 Maintenance
of Primary Mortgage Insurance Policy; Claims.
With
respect to each Conventional Mortgage Loan with a LTV in excess of 80% at the
time of origination and that the Mortgage Loan Schedule indicates as having
a
PMI Policy, the Company shall, without any cost to the Purchaser, maintain
or
cause the Mortgagor to maintain in full force and effect a PMI Policy or LPMI
Policy insuring that portion of the Mortgage Loan as is required by the
Underwriting Guidelines. The Company shall pay or shall cause the Mortgagor
to
pay the premium thereon on a timely basis, at least until the LTV of such
Mortgage Loan is reduced to 80%, or such amount as required by Applicable Law,
or such other amount as Xxxxxx Xxx and Freddie Mac permits for cancellation
of
mortgage insurance. In the event that such PMI Policy shall be terminated other
than as required by law, the Company shall obtain from another insurer a
comparable replacement policy, with a total coverage equal to the remaining
coverage of such terminated PMI Policy. If the insurer shall cease to be a
qualified insurer, the Company shall determine whether recoveries under the
PMI
Policy or LPMI Policy are jeopardized for reasons related to the financial
condition of such insurer, it being understood that the Company shall in no
event have any responsibility or liability for any failure to recover under
the
PMI Policy or LPMI Policy for such reason. If the Company determines that
recoveries are so jeopardized, it shall notify the Purchaser and the Mortgagor,
if required, and obtain from another qualified insurer a replacement insurance
policy. The Company will maintain or cause to be maintained in full force and
effect any Lender Paid Mortgage Insurance Policy issued by a Qualified Insurer
with respect to each Mortgage Loan for which such coverage is in existence
or is
obtained. The Company shall not take any action which would result in
noncoverage under any applicable PMI Policy or LPMI Policy of any loss which,
but for the actions of the Company would have been covered thereunder. In
connection with any assumption or substitution agreement entered into or to
be
entered into pursuant to Section 6.01, the Company shall promptly notify the
insurer under the related PMI Policy or LPMI Policy, if any, of such assumption
or substitution of liability in accordance with the terms of such
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PMI
Policy or LPMI Policy and shall take all actions which may be required by such
insurer as a condition to the continuation of coverage under such PMI Policy
or
LPMI Policy. If such PMI Policy or LPMI Policy is terminated as a result of
such
assumption or substitution of liability, the Company shall obtain a replacement
PMI Policy or LPMI Policy as provided above.
In
connection with its activities as servicer, the Company 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 or LPMI Policy and, in this regard, to take such action as
shall
be necessary to permit recovery under any PMI Policy or LPMI Policy respecting
a
defaulted Mortgage Loan.
Section
4.22 Establishment
of and Deposits to Subsidy Account.
(a)
The Company shall segregate and hold all Subsidy Funds collected and received
pursuant to the Subsidy Loans separate and apart from any of its own funds
and
general assets and shall establish and maintain one or more Subsidy Accounts,
in
the form of time deposit or demand accounts, titled “Xxxxx Fargo Bank, N.A., in
trust for the Purchaser, its successors or assigns, and/or subsequent purchasers
of Residential Mortgage Loans, and various Mortgagors.” The Subsidy Accounts
shall be established with a Qualified Depository, in a manner which shall
provide maximum available insurance thereunder. Upon request of the Purchaser
and within ten (10) days thereof, the Company shall provide the Purchaser with
written confirmation of the existence of such Subsidy Account. Funds deposited
in the Subsidy Account may be drawn on by the Company in accordance with this
4.22.
(b)
The Company shall, from time to time, withdraw funds from the Subsidy Account
for the following purposes:
(i)
on or prior to each Remittance Date, to deposit in the Custodial Account in
the
amounts and in the manner provided for in Section 4.04(12);
(ii)
to transfer funds to another Qualified Depository in accordance with Section
4.09 hereof;
(iii)
to withdraw funds deposited in error; and
(iv)
to clear and terminate the Subsidy Account upon the termination of this
Agreement.
(c)
Notwithstanding anything to the contrary elsewhere in this Agreement, the
Company may employ the Escrow Account as the Subsidy Account to the extent
that
the Company can separately identify any Subsidy Funds deposited therein.
(d)
If the Mortgagor on a Subsidy Mortgage Loan defaults on such Mortgage Loan
during the Subsidy Period and the Mortgaged Property securing such Subsidy
Mortgage Loan is sold in the liquidation thereof (either by the Company or
the
insurer under any related PMI Policy) the Company shall, on the Remittance
Date
following the
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date
upon which Liquidation Proceeds or REO Disposition proceeds are received with
respect to any such Subsidy Mortgage Loan, distribute to the Purchaser all
remaining Subsidy Funds for such Mortgage Loan then remaining in the Subsidy
Account. Pursuant to the terms of each Subsidy Agreement, any amounts
distributed to the Purchaser in accordance with the preceding sentence will
be
applied to reduce the outstanding principal balance of the related Subsidy
Mortgage Loan. If a Mortgagor on a Subsidy Mortgage Loan prepays such Mortgage
Loan in it entirety during the related Subsidy Period, the Company shall be
required to withdraw from the Subsidy Account any Subsidy Funds remaining in
the
Subsidy Account with respect to such Subsidy Mortgage Loan in accordance with
the related Subsidy Agreement. If a principal prepayment by a Mortgagor on
a
Subsidy Mortgage Loan during the related Subsidy Period, together with any
Subsidy Funds then remaining in the Subsidy Account related to such Subsidy
Mortgage Loan, would result in a principal prepayment of the entire unpaid
principal balance of the Subsidy Mortgage Loan, the Company shall distribute
to
the Purchaser on the Remittance Date occurring in the month immediately
succeeding the month in which such Principal Prepayment is received, all Subsidy
Funds related to such Mortgage Loan so remaining in the Subsidy Account,
together with any amounts required to be deposited into the Custodial Account.
Section
4.23 Establishment
of and Deposits to Buydown Account.
(a)
The Company shall segregate and hold all Buydown Funds collected and received
pursuant to the Buydown Loans separate and apart from any of its own funds
and
general assets and shall establish and maintain one or more Buydown Accounts,
in
the form of time deposit or demand accounts, titled “Xxxxx Fargo Bank, N.A., in
trust for the Purchaser, its successors or assigns, and/or subsequent purchasers
of Residential Mortgage Loans, and various Mortgagors.” The Buydown Accounts
shall be established with a Qualified Depository, in a manner which shall
provide maximum available insurance thereunder. Upon request of the Purchaser
and within ten (10) days thereof, the Company shall provide the Purchaser with
written confirmation of the existence of such Buydown Account. Funds deposited
in the Buydown Account may be drawn on by the Company in accordance with this
4.23.
(b)
The Company shall, from time to time, withdraw funds from the Buydown Account
for the following purposes:
(i)
on or prior to each Remittance Date, to deposit in the Custodial Account in
the
amounts and in the manner provided for in Section 4.04(11);
(ii)
to transfer funds to another Qualified Depository in accordance with Section
4.09 hereof;
(iii)
to withdraw funds deposited in error; and
(iv)
to clear and terminate the Buydown Account upon the termination of this
Agreement.
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(c)
Notwithstanding anything to the contrary elsewhere in this Agreement, the
Company may employ the Escrow Account as the Buydown Account to the extent
that
the Company can separately identify any Buydown Funds deposited therein.
If
the Mortgagor on a Buydown Mortgage Loan defaults on such Mortgage Loan during
the Buydown Period and the Mortgaged Property securing such Buydown Mortgage
Loan is sold in the liquidation thereof (either by the Company or the insurer
under any related PMI Policy) the Company shall, on the Remittance Date
following the date upon which Liquidation Proceeds or REO Disposition proceeds
are received with respect to any such Buydown Mortgage Loan, distribute to
the
Purchaser all remaining Buydown Funds for such Mortgage Loan then remaining
in
the Buydown Account. Pursuant to the terms of each Buydown Agreement, any
amounts distributed to the Purchaser in accordance with the preceding sentence
will be applied to reduce the outstanding principal balance of the related
Buydown Mortgage Loan. If a Mortgagor on a Buydown Mortgage Loan prepays such
Mortgage Loan in it entirety during the related Buydown Period, the Company
shall be required to withdraw from the Buydown Account any Buydown Funds
remaining in the Buydown Account with respect to such Buydown Mortgage Loan
in
accordance with the related Buydown Agreement. If a principal prepayment by
a
Mortgagor on a Buydown Mortgage Loan during the related Buydown Period, together
with any Buydown Funds then remaining in the Buydown Account related to such
Buydown Mortgage Loan, would result in a principal prepayment of the entire
unpaid principal balance of the Buydown Mortgage Loan, the Company shall
distribute to the Purchaser on the Remittance Date occurring in the month
immediately succeeding the month in which such Principal Prepayment is received,
all Buydown Funds related to such Mortgage Loan so remaining in the Buydown
Account, together with any amounts required to be deposited into the Custodial
Account.
Section
4.24 Letter
of Credit Compliance.
Notwithstanding
any other provision of this Agreement, the Company shall comply with all the
requirements of any Letter of Credit so as to assure the full benefit of such
Letter of Credit to the Purchaser.
Section
4.25 Letter
of Credit Draws.
The
Company shall take all steps necessary to make draws under any Letter of Credit
in accordance with the provisions thereof and shall draw on each Letter of
Credit all amounts payable thereunder within the time frame required by the
Letter of Credit or such shorter time within which the Company can effect such
draw (not to exceed thirty (30) calendar days) of (i) the date the related
Pledged Asset Mortgage Loan becomes 90 days or more delinquent and (ii) the
receipt of notice of non-renewal from the Pledge Holder at any time prior to
the
date that all amounts owed under the related Pledged Asset Mortgage Loan are
less than or equal to 80% of the Appraised Value of the related Mortgaged
Property. The Company shall notify the Purchaser promptly in writing upon
receipt of notice from the Pledge Holder of non-renewal of any Letter
of
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Credit.
Upon receipt of any amounts as a result of a draw on a Letter of Credit because
of the non-renewal of such Letter of Credit or as a result of the Pledged Asset
Mortgage Loan continuing in default for 90 or more days, the Company shall
deposit such amounts in the Custodial Account and such amount shall be treated
as a payment of principal.
Section
4.26 Assignment
of the Letter of Credit.
Notwithstanding
anything to the contrary in this Agreement (including, without limitation,
the
termination or transfer of the servicing rights and/or obligations of the
Company pursuant to Articles X and XI hereof), the Company, as beneficiary
under
any Non-Assigned Letters of Credit, shall transfer and assign, at no cost to
the
Purchaser, each Non-Assigned Letter of Credit to the Purchaser in accordance
with the provisions thereof within ten (10) days of such termination or
transfer. In addition, the Company shall forward within one (1) Business Day
of
receipt any notice received of non-renewal of any Letter of Credit. Any funds
received by the Company from draws on the Non-Assigned Letters of Credit after
the Company is no longer the servicer hereunder shall be remitted by the Company
to the successor servicer for deposit into the Custodial Account.
Section
4.27 Pledge
Holder Defaults.
Upon
a default under the Letter of Credit by the Pledge Holder, the Company shall
take possession of the assets securing the Letter of Credit and shall deposit
such assets or the proceeds thereof in the Custodial Account and apply them
as a
prepayment of the related Pledged Asset Mortgage Loan. If such default described
in the prior sentence occurs at any time that the Company is no longer the
servicer of the related Pledged Asset Mortgage Loan, the Company shall, upon
knowledge of such default or notice from the successor servicer of such default
with respect to any Non-Assigned Letter of Credit forward such proceeds to
the
successor servicer for deposit into the Custodial Account.
Section
4.28 Use
of
Subservicers and Subcontractors.
The
Company shall not hire or otherwise utilize the services of any Subservicer
to
fulfill any of the obligations of the Company under this Agreement or any
Reconstitution Agreement unless the Company complies with the provisions of
paragraph (a) of this Section 4.28. The Company 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 Company under this Agreement or any Reconstitution
Agreement unless the Company complies with the provisions of paragraph (b)
of
this Section 4.28.
(a)
It shall not be necessary for the Company to seek the consent of the Purchaser
or any Depositor to the utilization of any Subservicer. The Company shall cause
any Subservicer used by the Company (or by any Subservicer) for the benefit
of
the Purchaser and any Depositor to comply with the provisions of
this
-
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Section
4.28 and with Sections 6.04, 6.06, 9.01(f)(iii), 9.01(f)(v) and 9.01(g) of
this
Agreement to the same extent as if such Subservicer were the Company, and to
provide the information required with respect to such Subservicer under Section
9.01(f)(iv) of this Agreement. The Company shall be responsible for obtaining
from each Subservicer and delivering to the Purchaser and any Depositor any
servicer compliance statement required to be delivered by such Subservicer
under
Section 6.04 and any assessment of compliance and attestation required to be
delivered by such Subservicer under Section 6.06 and any certification required
to be delivered to the Person that will be responsible for signing the Sarbanes
Certification under Section 6.06 as and when required to be delivered.
(b)
It shall not be necessary for the Company to seek the consent of the Purchaser
or any Depositor to the utilization of any Subcontractor. The Company shall
promptly upon request provide to the Purchaser and any Depositor (or any
designee of the Depositor, such as a master servicer or administrator) a written
description (in form and substance satisfactory to the Purchaser and such
Depositor) of the role and function of each Subcontractor utilized by the
Company 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 Company shall cause any such Subcontractor used by the
Company (or by any Subservicer) for the benefit of the Purchaser and any
Depositor to comply with the provisions of Sections 6.06 and 9.01(g) of this
Agreement to the same extent as if such Subcontractor were the Company. The
Company shall be responsible for obtaining from each Subcontractor and
delivering to the Purchaser and any Depositor any assessment of compliance
and
attestation required to be delivered by such Subcontractor under Section 6.06,
in each case as and when required to be delivered.
Section
4.29 Subordination
of Second Lien Mortgage Loans.
The
Company is authorized, without the prior approval of the Purchaser, to consent
to the refinancing of any Superior Lien on a Mortgaged Property, provided,
that
the resulting Combined Loan-to-Value Ratio of such Mortgage Loan is no higher
than the Combined Loan-to-Value Ratio prior to such refinancing.
Where
permitted by law and where the senior lienholder is required to notify a junior
lienholder be named as a party defendant in foreclosure proceedings in order
to
foreclose such junior lienholder’s equity of redemption, the Company shall, at
the reasonable expense of the Purchaser, file (or cause to be filed) a request
for notice of any
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action
by a superior lienholder under a related senior lien for the protection of
the
Purchaser’s interest in the related Second Lien Mortgage Loan.
If
the Company is notified that any superior lienholder has accelerated or intends
to accelerate the obligations secured by the superior lien, or has declared
or
intends to declare a default under the superior mortgage or the promissory
note
secured thereby, or has filed or intends to file an election to have the
Mortgaged Property sold or foreclosed, the Company shall take whatever actions
are necessary to protect the interests of the Purchaser, and/or to preserve
the
security of the related Mortgage Loan, subject to any requirements applicable
to
real estate mortgage investment conduits pursuant to the Code. The Company
shall
advance the funds necessary to cure the default or reinstate the superior lien
if the Servicer determines that such advance is in the best interests of the
Purchaser. The Company shall not make such an advance except to the extent
that
it determines in its reasonable good faith judgment that such advance will
be
recoverable from Liquidation Proceeds on the related Mortgage Loan. The Company
shall thereafter take such action as is necessary to recover the amount so
advanced.
ARTICLE
V
PAYMENTS
TO PURCHASER
Section
5.01 Remittances.
On
each Remittance Date, the Company shall remit by wire transfer of immediately
available funds to the Purchaser (a) all amounts deposited in the Custodial
Account as of the close of business on the Determination Date (net of charges
against or withdrawals from the Custodial Account pursuant to Section 4.05),
plus
(b) all amounts, if any, which the Company is obligated to distribute pursuant
to Section 5.03, minus
(c)
any amounts attributable to Principal Prepayments received after the applicable
Principal Prepayment Period which amounts shall be remitted on the following
Remittance Date, together with any additional interest required to be deposited
in the Custodial Account in connection with such Principal Prepayment in
accordance with Section 4.04(8); minus
(d) any amounts attributable to Monthly Payments collected but due on a Due
Date
or Dates subsequent to the first day of the month of the Remittance Date and
minus
(e) any
amounts attributable to Buydown Funds relating to a future Due Period being
held
in the Custodial Account, which amounts shall be remitted on the Remittance
Date
next succeeding the Due Period for such amounts..
With
respect to any remittance received by the Purchaser after the date on which
such
payment was due, the Company 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 charge, plus
two percentage points, but in no event greater than the maximum amount permitted
by Applicable Law. Such interest shall be deposited in the Custodial Account
by
the Company on the date such late payment is made and shall cover the period
commencing with the day following such second Business Day and ending with
the
Business Day on
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which
such payment is made, both inclusive. Such interest shall be remitted along
with
the distribution payable on the next succeeding Remittance Date. The payment
by
the Company of any such interest shall not be deemed an extension of time for
payment or a waiver of any Event of Default by the Company.
Section
5.02 Statements
to Purchaser.
Not
later than the Remittance Advice Date, the Company shall furnish to the
Purchaser a Monthly Remittance Advice, including the information set forth
in
Exhibit E attached hereto, with a trial balance report attached thereto, as
to
the period ending on the last day of the preceding month, in a form to be agreed
upon by the Purchaser and the Company.
Section
5.03 Monthly
Advances by Company.
On
the Business Day immediately preceding each Remittance Date, the Company shall
deposit in the Custodial Account from its own funds or from amounts held for
future distribution an amount equal to all Monthly Payments (with interest
adjusted to the Mortgage Loan Remittance Rate) which were due on the Mortgage
Loans during the applicable Due Period and which were delinquent at the close
of
business on the Determination Date immediately preceding such Remittance Date
or
which were deferred pursuant to Section 4.01. Any amounts held for future
distribution and so used shall be replaced by the Company 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. Notwithstanding the
foregoing, the Company shall not be permitted to make any advances from amounts
held for future distribution, and instead shall be required to make all advances
from its own funds, unless the Company, its parent, or their respective
successors hereunder shall have a long-term credit rating of at least “A” by
Fitch, Inc. (doing business as Fitch Ratings), “A” by Standard & Poor’s
Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc. and “A2” by
Xxxxx’x Investors Service, Inc. The Company’s obligation to make such Monthly
Advances as to any Mortgage Loan will continue through the last Monthly Payment
due prior to the payment in full of the Mortgage Loan, or through the earlier
of: (i) the last Remittance Date prior to the Remittance Date for the
distribution of all Liquidation Proceeds and other payments or recoveries
(including Insurance Proceeds and Condemnation Proceeds) with respect to the
Mortgage Loan and (ii) the Remittance Date prior to the date the Mortgage Loan
is converted to REO Property; provided,
however,
that if requested by a Rating Agency in connection with Securitization
Transaction, the Company shall be obligated to make such advances through the
Remittance Date prior to the date on which cash is received in connection with
the liquidation of REO Property; provided,
however,
that such obligation shall cease if the Company determines, in its sole
reasonable opinion, that advances with respect to such Mortgage Loan are
non-recoverable by the Company from Liquidation Proceeds, Insurance Proceeds,
Condemnation Proceeds or otherwise with respect to a particular Mortgage Loan.
In the event that the Company determines that any such advances are
non-recoverable, the Company shall provide the Purchaser with a certificate
signed by two officers of the Company evidencing such determination. The
Company
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shall
not have an obligation to advance amounts in respect to shortfalls relating
to
the Servicemembers Civil Relief Act or similar state or local laws.
ARTICLE
VI
GENERAL
SERVICING PROCEDURES
Section
6.01 Transfers
of Mortgaged Property.
The
Company shall use its best efforts to enforce any “due-on-sale” provision
contained in any Mortgage or Mortgage Note and to deny assumption by the Person
to whom the Mortgaged Property has been or is about to be sold whether by
absolute conveyance or by contract of sale, and whether or not the Mortgagor
remains liable on the Mortgage and the Mortgage Note. When the Mortgaged
Property has been conveyed by the Mortgagor, the Company shall, to the extent
it
has knowledge of such conveyance, exercise its rights to accelerate the maturity
of such Mortgage Loan under the “due-on-sale” clause applicable thereto;
provided,
however,
that the Company shall not exercise such rights if prohibited by law from doing
so or, with respect to the Non-Conventional Mortgage Loans, if the exercise
of
such rights would impair or threaten to impair any recovery under the related
MIC or LGC or Loan Note Guarantee.
If
the Company reasonably believes it is unable under Applicable Law to enforce
such “due-on-sale” clause, the Company shall enter into (i) an assumption and
modification agreement with the Person to whom such property has been conveyed,
pursuant to which such Person becomes liable under the Mortgage Note and the
original Mortgagor remains liable thereon or (ii) in the event that the Company
is unable under Applicable Law to require that the original Mortgagor remain
liable under the Mortgage Note and the Company has the prior consent of the
primary mortgage guaranty insurer, a substitution of liability agreement with
the purchaser of the Mortgaged Property pursuant to which the original Mortgagor
is released from liability and the purchaser of the Mortgaged Property is
substituted as Mortgagor and becomes liable under the Mortgage Note. If an
assumption fee is collected by the Company for entering into an assumption
agreement, the fee will be retained by the Company as additional servicing
compensation. In connection with any such assumption, neither the Mortgage
Interest Rate borne by the related Mortgage Note, the term of the Mortgage
Loan,
the outstanding principal amount of the Mortgage Loan nor any other material
terms shall be changed without the Purchaser’s consent.
To
the extent that any Mortgage Loan is assumable, the Company shall inquire
diligently into the credit worthiness of the proposed transferee, and shall
use
the underwriting criteria for approving the credit of the proposed transferee
which are used with respect to underwriting mortgage loans of the same type
as
the Mortgage Loans. If the credit of the proposed transferee does not meet
such
underwriting criteria, the Company diligently shall, to the extent permitted
by
the Mortgage or the Mortgage Note and by Applicable Law, accelerate the maturity
of the Mortgage Loan.
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Section
6.02 Satisfaction
of Mortgages and Release of Mortgage Files.
Upon
the payment in full of any Mortgage Loan, the Company shall notify the Purchaser
in the Monthly Remittance Advice as provided in Section 5.02 and may request
the
release of any Mortgage Loan Documents. If such Mortgage Loan is a MERS Mortgage
Loan, the Company is authorized to cause the removal from the registration
on
the MERS System of such Mortgage and to execute and deliver, on behalf of the
Purchaser, any and all instruments of satisfaction or cancellation or of partial
or full release.
If
the Company satisfies or releases a Mortgage without first having obtained
payment in full of the indebtedness secured by the Mortgage or should the
Company otherwise prejudice any rights the Purchaser may have under the mortgage
instruments, upon written demand of the Purchaser, the Company shall repurchase
the related Mortgage Loan at the Repurchase Price by deposit thereof in the
Custodial Account within two (2) Business Days of receipt of such demand by
the
Purchaser. The Company shall maintain the Fidelity Bond and Errors and Omissions
Insurance Policy as provided for in Section 4.12 insuring the Company against
any loss it may sustain with respect to any Mortgage Loan not satisfied in
accordance with the procedures set forth herein.
Section
6.03 Servicing
Compensation.
As
compensation for its services hereunder, the Company shall be entitled to
withdraw from the Custodial Account or to retain from interest payments on
the
Mortgage Loans the amount of its Servicing Fee. The Servicing Fee shall be
payable monthly and shall be computed on the basis of the same unpaid principal
balance and for the period respecting which any related interest payment on
a
Mortgage Loan is received. The obligation of the Purchaser to pay the Servicing
Fee is limited to, and payable solely from, the interest portion of such Monthly
Payments. The Servicing Fee shall not be reduced by the amount of any guaranty
fee payable to FHA, VA or RHS.
Additional
servicing compensation in the form of assumption fees, to the extent provided
in
Section 6.01, and late payment charges shall be retained by the Company to
the
extent not required to be deposited in the Custodial Account. The Company shall
be required to pay all expenses incurred by it in connection with its servicing
activities hereunder and shall not be entitled to reimbursement thereof except
as specifically provided for herein.
Section
6.04 Annual
Statement as to Compliance.
On
or before March 1st
of each calendar year, commencing in 2007, the Company shall deliver to the
Purchaser and any Depositor a statement of compliance addressed to the Purchaser
and such Depositor and signed by an authorized officer of the Company, to the
effect that (a) a review of the Company’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 (b) to the best of
such officers’ knowledge, based on such
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review,
the Company has fulfilled all of its obligations under this Agreement and any
applicable Reconstitution Agreement in all material respects throughout such
calendar year (or applicable portion thereof) or, if there has been a failure
to
fulfill any such obligation in any material respect, specifically identifying
each such failure known to such officer and the nature and the status thereof.
Section
6.05 Annual
Independent Public Accountants’ Servicing Report.
Except
with respect to any Mortgage Loans that are the subject of a Securitization
Transactions, the Company shall, on or before March 1st
of each calendar year commencing in 2007, at its expense, cause a firm of
independent public accountants which is a member of the American Institute
of
Certified Public Accountants to furnish a statement to each Purchaser to the
effect that such firm has examined certain documents and records relating to
the
servicing of the mortgage loans similar in nature and that such firm is of
the
opinion that the provisions of this or similar agreements have been complied
with, and that, on the basis of such examination conducted substantially in
compliance with the Uniform Single Attestation Program for Mortgage Bankers,
nothing has come to their attention which would indicate that such servicing
has
not been conducted in compliance therewith, except for (i) such exceptions
as
such firm shall believe to be immaterial and (ii) such other exceptions as
shall
be set forth in such statement. By providing the Purchaser a copy of a Uniform
Single Attestation Program Report from their independent public accountant’s on
an annual basis, the Company shall be considered to have fulfilled its
obligations under this Section 6.05.
Section
6.06 Report on Assessment of Compliance and Attestation.
With
respect to any Mortgage Loans that are the subject of a Securitization
Transaction, the Company shall, on or before March 1st
of each calendar year, commencing in 2007:
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(i)
|
deliver
to the Purchaser and any Depositor a report (in form and substance
reasonably satisfactory to the Purchaser and such Depositor) regarding
the
Company’s assessment of compliance with the Servicing Criteria during the
immediately preceding calendar year, as required under Rules 13a-18
and
15d-18 of the Exchange Act and Item 1122 of Regulation AB. Such report
shall be addressed to the Purchaser and such Depositor and signed
by an
authorized officer of the Company and shall address each of the Servicing
Criteria specified substantially in the form of Exhibit M hereto;
|
|
(ii)
|
deliver
to the Purchaser and any Depositor a report of a registered public
accounting firm reasonably acceptable to the Purchaser and such Depositor
that attests to, and reports on, the assessment of compliance made
by the
Company 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;
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|
(iii)
|
cause
each Subservicer and each Subcontractor, determined by the Company
pursuant to Section 4.28(b) to be “participating in the servicing
function” within the meaning of Item 1122 of Regulation AB, to deliver to
the Purchaser and such Depositor an assessment of compliance and
accountants’ attestation as and when provided in paragraphs (i) and (ii)
of this Section 6.06; and
|
|
(iv)
|
if
requested by the Purchaser or any Depositor not later than February
1 of
the calendar year in which such certification is to be delivered,
deliver
to the Purchaser, any Depositor and any other Person that will be
responsible for signing the certification (a “Sarbanes Certification”)
required by Rules 13a-14(d) and 15d-14(d) under the Exchange Act
(pursuant
to Section 302 of the Xxxxxxxx-Xxxxx Act of 2002) on behalf of an
asset-backed issuer with respect to a Securitization Transaction
a
certification in the form attached hereto as Exhibit N.
|
The
Company acknowledges that the parties identified in clause (iv) above may rely
on the certification provided by the Company 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 (iv) 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.
Each
assessment of compliance provided by a Subservicer pursuant to Section 6.06(i)
shall address each of the Servicing Criteria specified substantially in the
form
of Exhibit M hereto delivered to the Purchaser concurrently with the execution
of this Agreement or, in the case of a Subservicer subsequently appointed as
such, on or prior to the date of such appointment. An assessment of compliance
provided by a Subcontractor pursuant to Section 6.06(iii) need not address
any
elements of the Servicing Criteria other than those specified by the Company
pursuant to Section 4.28.
Section
6.07 Remedies.
(i)
Any failure by the Company, 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 Article IX,
Section 4.28, Section 6.04, Section 6.05 or Section 6.06, or any breach by
the
Company of a representation or warranty set forth in Section 9.01(f)(vi)(A),
or
in a writing furnished pursuant to Section 9.01(f)(vi)(B) and made as of a
date
prior to the closing date of the related Securitization Transaction, to the
extent that such breach is not cured by such closing date, or any breach by
the
Company of a representation or warranty in a writing furnished pursuant to
Section 9.01(f)(vi)(B) to the extent made as of a date subsequent to such
closing date, shall, except as provided in sub-clause (ii) of this Section,
immediately and automatically, without notice or grace period, constitute an
Event of Default with respect to the Company under this Agreement and any
applicable Reconstitution Agreement, and shall entitle the Purchaser or
Depositor, as applicable, in its sole discretion to terminate
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the
rights and obligations of the Company 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 Company; provided that to the extent than
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 Company as servicer, such provision shall be given effect.
(ii)
Any failure by the Company, any Subservicer or any Subcontractor to deliver
any
information, report, certification or accountants’ letter when and as required
under Section 6.04, Section 6.05 or Section 6.06, including (except as provided
below) any failure by the Company to identify any Subcontractor “participating
in the servicing function” within the meaning of Item 1122 of Regulation AB,
which continues unremedied for ten (10) 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 Company
under this Agreement and any applicable Reconstitution Agreement, and shall
entitle the Purchaser or Depositor, as applicable, in its sole discretion to
terminate the rights and obligations of the Company under this Agreement and/or
any applicable Reconstitution Agreement without payment (notwithstanding
anything in this Agreement to the contrary) of any compensation to the Company;
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 Company as servicer,
such provision shall be given effect.
Neither
the Purchaser nor any Depositor shall be entitled to terminate the rights and
obligations of the Company pursuant to this subparagraph (ii) if a failure
of
the Company to identify a Subcontractor “participating in the servicing
function” within the meaning of Item 1122 of Regulation AB was attributable
solely to the role or functions of such Subcontractor with respect to mortgage
loans other than the Mortgage Loans.
(iii)
The Company shall promptly reimburse the Purchaser (or any designee of the
Purchaser, such as a master servicer) and any Depositor, as applicable, for
all
reasonable expenses incurred by the Purchaser (or such designee) or such
Depositor, as such are incurred, in connection with the termination of the
Company as servicer and the transfer of servicing of the Mortgage Loans to
a
successor servicer. The provisions of this paragraph shall not limit whatever
rights the Purchaser or any Depositor may have under other provisions of this
Agreement and/or any applicable Reconstitution Agreement or otherwise, whether
in equity or at law, such as an action for damages, specific performance or
injunctive relief.
Section
6.08 Right to Examine Company Records.
The
Purchaser, or its designee, shall have the right to examine and audit any and
all of the books, records, or other information of the Company, whether held
by
the Company or by another on its behalf, with respect to or concerning this
Agreement or the Mortgage Loans, during business hours or at such other times
as
may be reasonable under
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applicable
circumstances, upon reasonable advance notice. The Purchaser shall pay its
own
expenses associated with such examination.
Section
6.09 Compliance with REMIC Provisions.
If
a REMIC election has been made with respect to the arrangement under which
the
Mortgage Loans and REO Property are held, the Company shall not take any action,
cause the REMIC to take any action or fail to take (or fail to cause to be
taken) any action that, under the REMIC Provisions, if taken or not taken,
as
the case may be, could (i) endanger the status of the REMIC as a REMIC or (ii)
result in the imposition of a tax upon the REMIC (including but not limited
to
the tax on “prohibited transactions” as defined Section 860G(a)(2) of the Code
and the tax on “contributions” to a REMIC set forth in Section 860(D) of the
Code) unless the Company has received an Opinion of Counsel (at the expense
of
the party seeking to take such action) to the effect that the contemplated
action will not endanger such REMIC status or result in the imposition of any
such tax.
Section
6.10 Compliance with Xxxxx-Xxxxx-Xxxxxx Act of 1999.
With
respect to each Mortgage Loan and the related Mortgagor, the Company shall
comply with Title V of the Xxxxx-Xxxxx-Xxxxxx Act of 1999 and all applicable
regulations and guidelines promulgated thereunder.
ARTICLE
VII
COMPANY
TO COOPERATE
Section
7.01 Provision
of Information.
During
the term of this Agreement, the Company shall furnish to the Purchaser such
periodic, special or other reports or information, and copies or originals
of
any documents contained in the Servicing File for each Mortgage Loan provided
for herein. All other special reports or information not provided for herein
as
shall be necessary, reasonable, or appropriate with respect to the Purchaser
or
any regulatory agency will be provided at the Purchaser’s expense. All such
reports, documents or information shall be provided by and in accordance with
all reasonable instructions and directions which the Purchaser may give.
The
Company shall execute and deliver all such instruments and take all such action
as the Purchaser may reasonably request from time to time, in order to
effectuate the purposes and to carry out the terms of this Agreement.
Section
7.02 Financial
Statements; Servicing Facility.
In
connection with marketing the Mortgage Loans, the Purchaser may make available
to a prospective purchaser a Consolidated Statement of Operations of the Company
for the most recently completed two fiscal years for which such a statement
is
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available,
as well as a Consolidated Statement of Condition at the end of the last two
fiscal years covered by such Consolidated Statement of Operations. The Company
shall also make available any comparable interim statements to the extent any
such statements have been prepared by or on behalf of the Company (and are
available upon request to members or stockholders of the Company or to the
public at large).
The
Company shall also make available, within a reasonable period of time, to the
Purchaser or prospective purchaser a knowledgeable financial or accounting
officer for the purpose of answering questions respecting recent developments
affecting the Company or the financial statements of the Company, and to permit
any prospective purchaser to inspect the Company’s servicing facilities for the
purpose of satisfying such prospective purchaser that the Company has the
ability to service the Mortgage Loans as provided in this Agreement.
ARTICLE
VIII
THE
COMPANY
Section
8.01 Indemnification;
Third Party Claims.
The
Company shall indemnify the Purchaser and hold it harmless against any and
all
claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary
legal fees and related costs, judgments, and any other costs, fees and expenses
that the Purchaser may sustain in any way related to the failure of the Company
to perform its duties and service the Mortgage Loans in strict compliance with
the terms of this Agreement. The Company immediately shall notify the Purchaser
if a claim is made by a third party with respect to this Agreement or the
Mortgage Loans, assume (with the prior written consent of the Purchaser) the
defense of any such claim and pay all expenses in connection therewith,
including counsel fees, and promptly pay, discharge and satisfy any judgment
or
decree which may be entered against it or the Purchaser in respect of such
claim. The Company shall follow any written instructions received from the
Purchaser in connection with such claim. The Purchaser shall promptly reimburse
the Company for all costs, fees or expenses advanced by it pursuant to this
paragraph except when the claim in any way results from, relates to or arises
out of any liability, obligation, act or omission of the Company, including
without limitation, the Company’s indemnification obligation under Section 3.03
and this Section 8.01, any repurchase obligation of the Company hereunder
including Sections 2.03, 3.03 and 6.02, or the failure of the Company to service
and administer the Mortgage Loans and otherwise perform its obligations
hereunder in strict compliance with the terms of this Agreement.
Section
8.02 Merger
or Consolidation of the Company.
The
Company shall keep in full effect its existence, rights and franchises, and
shall obtain and preserve its qualification to do business in each jurisdiction
in which such qualification is or shall be necessary to protect the validity
and
enforceability of this Agreement or any of the Mortgage Loans and to perform
its
duties under this Agreement.
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Any
Person into which the Company may be merged or consolidated, or any corporation
resulting from any merger, conversion or consolidation (including by means
of
the sale of all or substantially all of the Company’s assets to such Person) to
which the Company shall be a party, or any Person succeeding to the business
of
the Company (whether or not related to loan servicing), shall be the successor
of the Company 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 Company shall not, without the prior written approval of the Purchaser
be a party to any such merger, conversion or consolidation, or sell or otherwise
dispose of all or substantially all of its business or assets if, (i) as a
result of such merger, conversion or consolidation, sale or other disposition,
an Event of Default under Section 10.01 hereof would exist with respect to
such
successor company or (ii) such successor has (a) a residential primary servicer
rating for servicing of mortgage loans issued by Standard & Poor’s Rating
Services, a division of The XxXxxx-Xxxx Companies, Inc., Fitch, Inc. or Xxxxx’x
Investors Service, Inc. below “average” or its equivalent or (b) a net worth of
less than $25,000,000.
Section
8.03 Limitation
on Liability of Company and Others.
Neither
the Company nor any of the directors, officers, employees or agents of the
Company shall be under any liability to the Purchaser for any action taken
or
for refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided,
however,
that this provision shall not protect the Company or any such Person against
any
breach of warranties or representations made herein, or failure to perform
its
obligations in strict compliance with any standard of care set forth in this
Agreement or any other liability which would otherwise be imposed under this
Agreement. The Company and any director, officer, employee or agent of the
Company may rely in good faith on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising hereunder.
The Company shall not be under any obligation to appear in, prosecute or defend
any legal action which is not incidental to its duties to service the Mortgage
Loans in accordance with this Agreement and which in its opinion may involve it
in any expense or liability; provided,
however,
that the Company may, with the consent of the Purchaser, undertake any such
action which it may deem necessary or desirable in respect to this Agreement
and
the rights and duties of the parties hereto. In such event, the Company shall
be
entitled to reimbursement from the Purchaser of the reasonable legal expenses
and costs of such action.
Section
8.04 Limitation
on Resignation and Assignment by Company.
The
Purchaser has entered into this Agreement with the Company and subsequent
Purchasers will purchase the Mortgage Loans in reliance upon the independent
status of the Company, and the representations as to the adequacy of its
servicing facilities, plant, personnel, records and procedures, its integrity,
reputation and financial standing, and the continuance thereof. Therefore,
the
Company shall neither assign this Agreement or the servicing rights hereunder
nor sell or otherwise dispose of all of its property or assets
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without
the prior written consent of the Purchaser which consent shall not be
unreasonably withheld.
The
Company shall not resign from the obligations and duties hereby imposed on
it
except by mutual consent of the Company and the Purchaser or upon the
determination that its duties hereunder are no longer permissible under
Applicable Law and such incapacity cannot be cured by the Company. Any such
determination permitting the resignation of the Company shall be evidenced
by an
Opinion of Counsel to such effect delivered to the Purchaser which Opinion
of
Counsel shall be in form and substance acceptable to the Purchaser. No such
resignation shall become effective until a successor shall have assumed the
Company’s responsibilities and obligations hereunder in the manner provided in
Section 12.01.
Without
in any way limiting the generality of this Section 8.04, in the event that
the
Company either shall assign this Agreement or the servicing responsibilities
hereunder; or sell or otherwise dispose of all or substantially all of its
property or assets without the prior written consent of the Purchaser, then
the
Purchaser shall have the right to terminate this Agreement upon notice given
as
set forth in Section 10.01, without any payment of any penalty or damages and
without any liability whatsoever to the Purchaser or any third party.
ARTICLE
IX
SECURITIZATION
TRANSACTION
Section
9.01 Removal
of Mortgage Loans from Inclusion under this Agreement upon a Securitization
Transaction.
The
Purchaser and the Company agree that with respect to some or all of the Mortgage
Loans, the Purchaser, at its sole option, may effect Whole Loan Transfers,
Agency Transfers or Securitization Transactions, retaining the Company as the
Servicer thereof or subservicer if a master servicer is employed, or as
applicable the “seller/servicer.” From and after the Reconstitution Date, the
Mortgage Loans transferred shall remain covered by this Agreement, insofar
as
the Company shall continue to service such Mortgage Loans on behalf of the
Purchaser in accordance with the terms and provisions of this Agreement.
The
Company shall cooperate with the Purchaser in connection with each Whole Loan
Transfer, Agency Transfer or Securitization Transaction in accordance with
this
Section 9.01. In connection therewith:
|
(a)
|
the
Company shall make all representations and warranties with respect
to the
Mortgage Loans as of the Closing Date and with respect to the Company
itself as of the closing date of each Whole Loan Transfer, Agency
Transfer
or Securitization Transaction;
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-77-
|
(b)
|
the
Company shall negotiate in good faith and execute any seller/servicer
agreements required to effectuate the foregoing; provided
such agreements create no greater obligation or cost on the part
of the
Company than otherwise set forth in this Agreement;
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(c)
|
the
Company shall represent to the Purchaser, the depositor, the trustee
and
the initial purchaser of the securities issued in connection with
any
Securitization Transaction that: (1) that the Company has serviced
the
Mortgage Loans in accordance with the terms of this Agreement, and
has
otherwise complied with all covenants and obligations hereunder and
(2)
that the Company has taken no action that would, nor omitted to take
any
required action the omission of which would, have the effect of impairing
the mortgage insurance or guarantee on the Mortgage Loans;
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(d)
|
the
Company shall deliver an opinion of counsel (which can be an opinion
of
in-house counsel to the Company) reasonably acceptable to the Purchaser;
provided
that any out-of-pocket, third party expenses incurred by the Company
in
connection with the foregoing shall be paid by the Purchaser;
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|
(e)
|
the
Company shall execute any seller/servicer agreements required within
a
reasonable period of time after receipt of such seller/servicer agreements
which time shall be sufficient for the Company and the Company’s counsel
to review such seller/servicer agreements. Under this Agreement,
the
Company shall retain a Servicing Fee for each Mortgage Loan at the
Servicing Fee Rate;
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(f)
|
the
Company shall, in connection with any Securitization Transaction,
(1)
within five (5) Business Days following request by the Purchaser
or any
Depositor, provide to the Purchaser and such Depositor (or, as applicable,
cause each Third-Party Originator and each Subservicer to provide),
in
writing and in form and substance reasonably satisfactory to the
Purchaser
and such Depositor, the information and materials specified in paragraphs
(i), (ii), (iii) and (vii) of this subsection (f), and (2) as promptly
as
practicable following notice to or discovery by the Company, provide
to
the Purchaser and any Depositor (in writing and in form and substance
reasonably satisfactory to the Purchaser and such Depositor) the
information specified in paragraph (iv) of this subsection (f).
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(i)
|
If
so requested by the Purchaser or any Depositor, the Company shall
provide
such information regarding (1) the Company, as originator of the
Mortgage
Loans (including as an acquirer of Mortgage Loans from a Qualified
Correspondent), or (2) each Third-Party Originator, and (3) 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;
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|
(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 or any Depositor may reasonably
request for the purpose of compliance with Item 1110(b)(2) of Regulation
AB;
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|
(C)
|
a
description of any material legal or governmental proceedings pending
(or
known to be contemplated) against the Company, each Third-Party Originator
and each Subservicer; and
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|
(D)
|
a
description of any affiliation or relationship (of a type described
in
Item 1119 if Regulation AB) between the Company, each Third-Party
Originator, each Subservicer and any of the following parties to
a
Securitization Transaction, as such parties are identified to the
Company
by the Purchaser or any Depositor in writing in advance of a
Securitization Transaction:
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(1)
|
the
sponsor;
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(2)
|
the
depositor;
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(3)
|
the
issuing entity;
|
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(4)
|
any
servicer;
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(5)
|
any
trustee;
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(6)
|
any
originator;
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|
(7)
|
any
significant obligor;
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(8)
|
any
enhancement or support provider; and
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(9)
|
any
other material transaction party.
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(ii)
|
If
so requested by the Purchaser or any Depositor, the Company 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
|
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identified
by the Purchaser as provided below) originated by (1) the Company, if the
Company is an originator of Mortgage Loans (including as an acquirer of Mortgage
Loans from a Qualified Correspondent), and/or (2) each Third-Party Originator.
Such Static Pool Information shall be prepared by the Company (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 Company (or Third-Party Originator) Static Pool
Information with respect to more than one mortgage loan type, the Purchaser
or
any Depositor shall be entitled to specify whether some or all of such
information shall be provided pursuant to this paragraph. The content of such
Static Pool Information may be in the form customarily provided by the Company,
and need not be customized for the Purchaser or any Depositor. Such Static
Pool
Information for each vintage origination year or prior securitized pool, as
applicable, shall be presented in increments no less frequently than quarterly
over the life of the mortgage loans included in the vintage origination year
or
prior securitized pool. The most recent periodic increment must be as of a
date
no later than 135 days prior to the date of the prospectus or other offering
document in which the Static Pool Information is to be included or incorporated
by reference. The Static Pool Information shall be provided in an electronic
format that provides a permanent record of the information provided, such as
a
portable document format (pdf) file, or other such electronic format reasonably
required by the Purchaser or the Depositor, as applicable.
Promptly
following notice or discovery of a material error in Static Pool Information
provided pursuant to the immediately preceding paragraph (including an omission
to include therein information required to be provided pursuant to such
paragraph), the Company 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 Company.
If
so requested by the Purchaser or any Depositor, the Company shall provide (or,
as applicable, cause each Third-Party Originator to provide), at the expense
of
the requesting party (to the extent of any additional incremental expense
associated with delivery pursuant to this Agreement), such statements and
agreed-upon procedures letters of certified public accountants reasonably
acceptable to the Purchaser or Depositor, as applicable, pertaining to Static
Pool Information relating to prior securitized pools for securitizations closed
on or after January 1, 2006 or, in the case of
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Static
Pool Information with respect to the Company’s or Third-Party Originator’s
originations or purchases, to calendar months commencing January 1, 2006, as
the
Purchaser or such Depositor shall reasonably request. Such statements and
letters shall be addressed to and be for the benefit of such parties as the
Purchaser or such Depositor shall designate, which may include, by way of
example, any sponsor, any Depositor and any broker dealer acting as underwriter,
placement agent or initial purchaser with respect to a Securitization
Transaction. Any such statement or letter may take the form of a standard,
generally applicable document accompanied by a reliance letter authorizing
reliance by the addressees designated by the Purchaser or such Depositor.
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(iii)
|
If
so requested by the Purchaser or any Depositor, the Company shall
provide
such information regarding the Company, as servicer of the Mortgage
Loans,
and each Subservicer (each of the Company and each Subservicer, for
purposes of this paragraph, a “Servicer”), as is requested for the purpose
of compliance with Items 1108 of Regulation AB. Such information
shall
include, at a minimum:
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(A)
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the
Servicer’s form of organization;
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(B)
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a
description of how long the Servicer has been servicing residential
mortgage loans; a general discussion of the Servicer’s experience in
servicing assets of any type as well as a more detailed discussion
of the
Servicer’s experience in, and procedures for, the servicing function it
will perform under this Agreement and any Reconstitution Agreements;
information regarding the size, composition and growth of the Servicer’s
portfolio of residential mortgage loans of a type similar to the
Mortgage
Loans and information on factors related to the Servicer that may
be
material, in the good faith judgment of the Purchaser or any Depositor,
to
any analysis of the servicing of the Mortgage Loans or the related
asset-backed securities, as applicable, including, without
limitation:
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|
(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;
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|
(2)
|
the
extent of outsourcing the Servicer utilizes;
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(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;
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(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
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(5)
|
such
other information as the Purchaser or any Depositor may reasonably
request
for the purpose of compliance with Item 1108(b)(2) of Regulation
AB;
|
|
(C)
|
a
description of any material changes during the three-year period
immediately preceding the related Securitization Transaction to the
Servicer’s policies or procedures with respect to the servicing function
it will perform under this Agreement and any Reconstitution Agreements
for
mortgage loans of a type similar to the Mortgage Loans;
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|
(D)
|
information
regarding the Servicer’s financial condition, to the extent that there is
a material risk that an adverse financial event or circumstance involving
the Servicer could have a material adverse effect on the performance
by
the Company of its servicing obligations under this Agreement or
any
Reconstitution Agreement;
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(E)
|
information
regarding advances made by the Servicer on the Mortgage Loans and
the
Servicer’s overall servicing portfolio of residential mortgage loans for
the three-year period immediately preceding the related Securitization
Transaction, which may be limited to a statement by an authorized
officer
of the Servicer to the effect that the Servicer has made all advances
required to be made on residential mortgage loans serviced by it
during
such period, or, if such statement would not be accurate, information
regarding the percentage and type of
advances
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not
made as required, and the reasons for such failure to advance;
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(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;
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|
(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
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|
(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.
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| (iv) |
If
so requested by the Purchaser or any Depositor for the purpose of
satisfying its reporting obligation under the Exchange Act with respect
to
any class of asset-backed securities, the Company shall (or shall
cause
each Subservicer and Third-Party Originator to) (1) notify the Purchaser
and any Depositor in writing of (A) any material litigation or
governmental proceedings pending against the Company, any Subservicer
or
any Third-Party Originator and (B) any affiliations or relationships
that
develop following the closing date of a Securitization Transaction
between
the Company, any Subservicer or any Third-Party Originator and any
of the
parties specified in Section 9.01(f)(i)(D) (and any other parties
identified in writing by the requesting party) with respect to such
Securitization Transaction, and (2) provide to the Purchaser and
any
Depositor a description of such proceedings, affiliations or
relationships.
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|
(v)
|
As
a condition to the succession to the Company or any Subservicer as
servicer or Subservicer under this Agreement or any Reconstitution
Agreement by any Person (i) into which the Company or such Subservicer
may
be merged or consolidated, or (ii) which may be appointed as a successor
to the Company or any Subservicer, the Company shall provide to the
Purchaser and any Depositor, at least fifteen (15) calendar days
prior to
the effective date of such succession or appointment, (x) written
notice
to the Purchaser and any Depositor of such succession or appointment
and
(y) in writing and in form and substance reasonably satisfactory
to the
Purchaser and such Depositor, all information reasonably requested
by the
Purchaser or any Depositor in order
to
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-83-
comply
with is reporting obligation under Item 6.02 of Form 8-K with respect to any
class of asset-backed securities.
|
(vi)
|
(A)
The Company shall be deemed to represent to the Purchaser, as of
the date
on which information is first provided to the Purchaser under this
Section
9.01(f) that, except as disclosed in writing to the Purchaser prior
to
such date: (1) the Company 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 Company; (2) the Company 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;
(3)
no material noncompliance with the applicable servicing criteria
with
respect to other securitizations of residential mortgage loans involving
the Company as servicer has been disclosed or reported by the Company;
(4)
no material changes to the Company’s policies or procedures with respect
to the servicing function it will perform under this Agreement and
any
Reconstitution Agreement for mortgage loans of a type similar to
the
Mortgage Loans have occurred during the three-year period immediately
preceding the related Securitization Transaction; (5) there are no
aspects
of the Company’s financial condition that could have a material adverse
effect on the performance by the Company of its servicing obligations
under this Agreement or any Reconstitution Agreement; (6) there are
no
material legal or governmental proceedings pending (or known to be
contemplated) against the Company, any Subservicer or any Third-Party
Originator; and (7) there are no affiliations, relationships or
transactions relating to the Company, any Subservicer or any Third-Party
Originator with respect to any Securitization Transaction and any
party
thereto identified by the related Depositor of a type described in
Item
1119 of Regulation AB.
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|
(B)
If so requested by the Purchaser on any date following the date on
which
information is first provided to the Purchaser under this Section
9.01(f),
the Company shall, within five (5) Business Days following such request,
confirm in writing the accuracy of the representations and warranties
set
forth in sub clause (A) above 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.
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(vii)
|
In
addition to such information as the Company, as servicer, is obligated
to
provide pursuant to other provisions of this Agreement, if so requested
by
the Purchaser or any Depositor, the
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Company
shall provide such information regarding the performance or servicing of the
Mortgage Loans as is reasonably required to facilitate preparation of
distribution reports in accordance with Item 1121 of Regulation AB. Such
information shall be provided concurrently with the monthly reports otherwise
required to be delivered by the servicer under this Agreement, commencing with
the first such report due not less than ten (10) Business Days following such
request.
|
(g)
|
the
Company shall indemnify the Purchaser, each affiliate of the Purchaser,
and each of the following parties participating in a Securitization
Transaction; each sponsor and issuing entity; each Person responsible
for
the preparation, execution or filing of any report required to be
filed
with the Commission with respect to such Securitization Transaction,
or
for execution of a certification pursuant to Rule 13a-14(d) or Rule
15d-14(d) under the Exchange Act with respect to such Securitization
Transaction; each broker dealer acting as underwriter, placement
agent or
initial purchaser, each Person who controls any of such parties or
the
Depositor (within the meaning of Section 15 of the Securities Act
and
Section 20 of the Exchange Act); and the respective present and former
directors, officers, employees and agents of each of the foregoing
and of
the Depositor, and shall hold each of them harmless from and against
any
losses, damages, penalties, fines, forfeitures, legal fees and expenses
and related costs, judgments, and any other costs, fees and expenses
that
any of them may sustain arising out of or based upon:
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|
(i)
|
(A)
any untrue statement of a material fact contained or alleged to be
contained in any information, report, certification, accountants’ letter
or other material provided in written or electronic form under Sections
4.28, 6.04, 6.06, 9.01(e) and (f) by or on behalf of the Company,
or
provided under Sections 4.28, 6.04, 6.06, 9.01(e) and (f) by or on
behalf
of any Subservicer, Subcontractor or Third-Party Originator (collectively,
the “Company Information”), or (B) the omission or alleged omission to
state in the Company Information a material fact required to be stated
in
the Company 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
Company Information and not to any other information communicated
in
connection with a sale or purchase of securities, without regard
to
whether the Company Information or any portion thereof is presented
together with or separately from such other information;
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-85-
|
(ii)
|
any
failure by the Company, 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 Sections
4.28, 6.04, 6.06, 9.01(e) and (f), including any failure by the Company
to
identify any Subcontractor “participating in the servicing function”
within the meaning of Item 1122 of Regulation AB; or
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|
(iii)
|
any
breach by the Company of a representation or warranty set forth in
Section
9.01(f)(vi)(A) or in a writing furnished pursuant to Section
9.01(f)(vi)(B) and made as of a date prior to the closing date of
the
related Securitization Transaction, to the extent that such breach
is not
cured by such closing date, or any breach by the Company of a
representation or warranty in a writing furnished pursuant to Section
9.01(f)(vi)(B) to the extent made as of a date subsequent to such
closing
date.
|
In
the case of any failure of performance described in sub-clause (ii) of this
Section 9.01(g), the Company shall promptly reimburse the Purchaser, any
Depositor, as applicable, and each Person responsible for the preparation,
execution or filing of any report required to be filed with the Commission
with
respect to such Securitization Transaction, or for execution of a certification
pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect
to such Securitization Transaction, for all costs reasonably incurred by each
such party in order to obtain the information, report, certification,
accountants’ letter or other material not delivered as required by the Company,
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.
|
(h)
|
the
Purchaser and a credit-worthy parent of the Purchaser, reasonably
acceptable to the Company, shall indemnify the Company, each affiliate
of
the Company, each Person who controls any of such parties or the
Company
(within the meaning of Section 15 of the Securities Act and Section
20 of
the Exchange Act) and the respective present and former directors,
officers, employees and agents of each of the foregoing and of the
Company, and shall hold each of them harmless from and against any
losses,
damages, penalties, fines, forfeitures, legal fees and expenses and
related costs, judgments, and any other costs, fees and expenses
that any
of them may sustain arising out of or based upon:
|
|
(i)
|
(A)
any untrue statement of a material fact contained or alleged to be
contained in any offering materials related to a Securitization
Transaction, including without limitation the
registration
|
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statement,
prospectus, prospectus supplement, any private placement memorandum, any
freewriting prospectuses, any ABS informational and computational material,
any
offering circular, any computational materials, and any amendments or
supplements to the foregoing (collectively, the “Securitization Materials”) or
(B) the omission or alleged omission to state in the Securitization Materials
a
material fact required to be stated in the Securitization Materials or necessary
in order to make the statements therein, in the light of the circumstances
under
which they were made, not misleading, but only to the extent that such untrue
statement or alleged untrue statement or omission or alleged omission is other
than a statement or omission arising out of, resulting from, or based upon
the
Company Information.
This
indemnification shall survive the termination of this Agreement or the
termination of any party to this Agreement.
|
(i)
|
the
Company and Purchaser shall enter into an indemnification agreement,
substantially in the form of Exhibit L attached
hereto;
|
|
(j)
|
with
respect to any Mortgage Loan that is subject to a Securitization
Transaction in which Freddie Mac provides a guarantee for some or
all of
the securities issued therein, the Company and the Purchaser shall
enter
into an amendment to this Agreement, substantially in the form of
Exhibit
J attached hereto;
|
|
(k)
|
with
respect to any Mortgage Loan that is subject to a Securitization
Transaction in which Xxxxxx Xxx provides a guarantee for some or
all of
the securities issued therein, the Company and the Purchaser shall
enter
into an assignment, assumption and recognition agreement, substantially
in
the form of Exhibit J attached hereto.
|
The
Purchaser and the Company acknowledge and agree that the purpose of Section
9.01(f) is to facilitate compliance by the Purchaser and any Depositor with
the
provisions of Regulation AB and related rules and regulations of the Commission.
Although Regulation AB is applicable by its terms only to offerings of
asset-backed securities that are registered under the Securities Act, the
Company acknowledges that investors in privately offered securities may require
that the Purchaser or any Depositor provide comparable disclosure in
unregistered offerings. References in this Agreement to compliance with
Regulation AB include provision of comparable disclosure in private offerings.
Neither
the Purchaser nor any Depositor shall exercise its right to request delivery
of
information or other performance under these provisions other than in good
faith, or for purposes other than compliance with the Securities Act, the
Exchange Act and the rules and regulations of the Commission thereunder (or
the
provision in a private offering of disclosure comparable to that required under
the Securities Act). The Company
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acknowledges
that interpretations of the requirements of Regulation AB may change over time,
whether due to interpretive guidance provided by the Commission or its staff,
consensus among participants in the asset-backed securities markets, advice
of
counsel, or otherwise, and agrees to comply with requests made by the Purchaser
or any Depositor in good faith for delivery of information under these
provisions on the basis of evolving interpretations of Regulation AB. In
connection with any Securitization Transaction, the Company shall cooperate
fully with the Purchaser to deliver to the Purchaser (including any of its
assignees or designees) and any Depositor, any and all statements, reports,
certifications, records and any other information necessary in the good faith
determination of the Purchaser or any Depositor to permit the Purchaser or
such
Depositor to comply with the provisions of Regulation AB, together with such
disclosures relating to the Company, any Subservicer, any Third-Party Originator
and the Mortgage Loans, or the servicing of the Mortgage Loans, reasonably
believed by the Purchaser or any Depositor to be necessary in order to effect
such compliance.
The
Purchaser (including any of its assignees or designees) shall cooperate with
the
Company by providing timely notice of requests for information under these
provisions and by reasonably limiting such requests to information required,
in
the Purchaser’s reasonable judgment, to comply with Regulation AB.
In
the event the Purchaser has elected to have the Company hold record title to
the
Mortgages, prior to the Reconstitution Date and after the Closing Date the
Company shall prepare an Assignment of Mortgage in blank or, at the option
of
the Purchaser, to the trustee from the Company (to the extent such Assignment
of
Mortgage has not been prepared on or before the Closing Date) acceptable to
the
trustee for each Mortgage Loan that is part of the Whole Loan Transfers or
Securitization Transactions. The Purchaser shall pay all preparation and
recording costs associated therewith. The Company shall execute each Assignment
of Mortgage, track such Assignments of Mortgage to ensure they have been
recorded and deliver them as required by the trustee upon the Company’s receipt
thereof. Additionally, the Company shall prepare and execute, at the direction
of the Purchaser, any note endorsements in connection with any and all
seller/servicer agreements.
The
Company acknowledges that the Purchaser may from to time sell or transfer
certain of the Mortgage Loans to Xxxxxx Xxx and/or Freddie Mac or deliver
certain securities secured by the Mortgage Loans to Xxxxxx Xxx or Freddie Mac
to
be guaranteed. In the event such sale or delivery occurs, the Company agrees
that it shall deliver to Xxxxxx Xxx, Freddie Mac, FHA, VA or RHS, as applicable,
all reports, certificates, and other documentation required by each such agency
and that it shall remit to Xxxxxx Xxx or Freddie Mac, as applicable, all amounts
required to be remitted in accordance such agency’s guaranty program. The
Purchaser and the Company agree that any Mortgage Loans sold by the Purchaser
to
Xxxxxx Xxx on a recourse basis, will be managed in accordance with the Process
Guidelines set forth in Exhibit H hereto. The Company acknowledges that the
requirements of the Process Guidelines are in addition to the Company’s
obligations to service the Loans in accordance with the Servicing Guides and
Accepted Servicing Practices. All Mortgage Loans not sold or transferred
pursuant to Whole Loan Transfers, Agency Transfers or Securitization
Transactions shall remain
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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.
ARTICLE
X
DEFAULT
Section
10.01 Events
of Default.
Each
of the following shall constitute an Event of Default on the part of the
Company:
|
(i)
|
any
failure by the Company to remit to the Purchaser any payment required
to
be made under the terms of this Agreement which continues unremedied
for a
period of two (2) Business Days after the date upon which written
notice
of such failure, requiring the same to be remedied, shall have been
given
to the Company by the Purchaser; or
|
|
(ii)
|
failure
by the Company duly to observe or perform in any material respect
any
other of the covenants or agreements on the part of the Company set
forth
in this Agreement which continues unremedied for a period of thirty
(30)
days after the date on which written notice of such failure, requiring
the
same to be remedied, shall have been given to the Company by the
Purchaser
or by the Custodian; or
|
|
(iii)
|
failure
by the Company to maintain its license to do business in any jurisdiction
where the Mortgaged Property is located if such license is required;
or
|
|
(iv)
|
a
decree or order of a court or agency or supervisory authority having
jurisdiction for the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, including bankruptcy,
marshaling of assets and liabilities or similar proceedings, or for
the
winding-up or liquidation of its affairs, shall have been entered
against
the Company and such degree or order shall have remained in force
undischarged or unstayed for a period of sixty (60) days; or
|
|
(v)
|
the
Company shall consent to the appointment of a conservator or receiver
or
liquidator in any insolvency, readjustment of debt, marshaling of
assets
and liabilities or similar proceedings of or relating to the Company
or of
or relating to all or substantially all of its property; or
|
|
(vi)
|
the
Company shall admit in writing its inability to pay its debts generally
as
they become due, file a petition to take advantage of
any
|
-89-
applicable
insolvency, bankruptcy or reorganization statute, make an assignment for the
benefit of its creditors, voluntarily suspend payment of its obligations or
cease its normal business operations for three (3) Business Days; or
|
(vii)
|
the
Company ceases to meet the qualifications of a Xxxxxx Xxx, Freddie
Mac,
GNMA, VA or RHS servicer; or
|
|
(viii)
|
the
Company attempts to assign its right to servicing compensation hereunder
or to assign this Agreement or the servicing responsibilities hereunder
in
violation of Section 8.04; or
|
|
(ix)
|
the
taking of any action by the Company, any Company Employee, any Affiliate
or any director or employee thereof that constitutes fraud or criminal
activity in the performance of its obligations under this Agreement
or the
indictment of any of the foregoing Persons for criminal activity
related
to the mortgage origination or servicing activities of the Company,
in
each case, where such indictment materially and adversely affects
the
ability of the Company to perform its obligations under this Agreement
(subject to the condition that such indictment is not dismissed within
ninety (90) days).
|
In
each and every such case, so long as an Event of Default shall not have been
remedied, in addition to whatever rights the Purchaser may have at law or equity
to damages, including injunctive relief and specific performance, the Purchaser,
by notice in writing to the Company, may terminate with cause all the rights
and
obligations of the Company under this Agreement and in and to the Mortgage
Loans
and the proceeds thereof. If the Company obtains knowledge of an Event of
Default, the Company shall promptly notify the Purchaser.
Upon
receipt by the Company of such written notice, all authority and power of the
Company under this Agreement, whether with respect to the Mortgage Loans or
otherwise, shall pass to and be vested in the successor appointed pursuant
to
Section 12.01. Upon written request from any Purchaser, the Company shall
prepare, execute and deliver to the successor entity designated by the Purchaser
any and all documents and other instruments, place in such successor’s
possession all Mortgage Files, and do or cause to be done all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, including but not limited to the transfer and endorsement or
assignment of the Mortgage Loans and related documents, at the Company’s sole
expense. The Company shall cooperate with the Purchaser and such successor
in
effecting the termination of the Company’s responsibilities and rights
hereunder, including without limitation, the transfer to such successor for
administration by it of all cash amounts which shall at the time be credited
by
the Company to the Custodial Account, Subsidy Account or Escrow Account or
thereafter received with respect to the Mortgage Loans.
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If
any of the Mortgage Loans are MERS Mortgage Loans, in connection with the
termination or resignation (as described in Section 8.04) of the Company
hereunder, either (i) the successor servicer shall represent and warrant that
it
is a member of MERS in good standing and shall agree to comply in all material
respects with the rules and procedures of MERS in connection with the servicing
of the Mortgage Loans that are registered with MERS, or (ii) the Company shall
cooperate with the successor servicer either (x) in causing MERS to execute
and
deliver an assignment of Mortgage in recordable form to transfer the Mortgage
from MERS to the Purchaser and to execute and deliver such other notices,
documents and other instruments as may be necessary to effect a transfer of
such
Mortgage Loan or servicing of such Mortgage Loan on the MERS®
System
to the successor servicer or (y) in causing MERS to designate on the
MERS®
System
the successor servicer as the servicer of such Mortgage Loan.
Section
10.02 Waiver
of Defaults.
By
a written notice, the Purchaser may waive any default by the Company in the
performance of its obligations hereunder and its consequences. Upon any waiver
of a past default, such default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been remedied for every purpose of
this Agreement. No such waiver shall extend to any subsequent or other default
or impair any right consequent thereon except to the extent expressly so waived.
ARTICLE
XI
TERMINATION
Section
11.01 Termination.
This
Agreement shall terminate upon any of: (i) the later of the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or the disposition of any REO Property with respect to the last Mortgage
Loan and the remittance of all funds due hereunder, (ii) mutual consent of
the
Company and the Purchaser in writing or (iii) termination pursuant to Section
10.01, 11.02 or 11.03.
Section
11.02 Termination
Without Cause.
The
Purchaser may terminate, at its sole option, any rights the Company may have
hereunder, without cause, as provided in this Section 11.02. Any such notice
of
termination shall be in writing and delivered to the Company and any Rating
Agency by registered mail as provided in Section 12.05.
The
Company shall be entitled to receive, as such liquidated damages, upon its
termination as servicer hereunder without cause pursuant to this Section 11.02
an amount equal to 2.50% of the aggregate outstanding principal amount of the
Mortgage Loans as of the termination date paid by the Purchaser to the Company
with respect to all of the Mortgage Loans.
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Section
11.03 Termination
With Cause.
Notwithstanding
any other provision hereof to the contrary, the Purchaser, at its option, may
terminate this Agreement, and any and all rights that the Company may have
hereunder, with cause upon ten (10) Business Days’ prior written notice. For all
purposes of determining “cause” with respect to termination of this Agreement or
the rights of the Company hereunder, such term shall mean, without limitation,
termination upon the occurrence of any Event of Default hereunder which is
not
cured within any applicable cure period. In the event of a termination of the
Company for cause under this Section 11.03, no liquidated damages shall be
payable to the Company pursuant to Section 11.02.
ARTICLE
XII
MISCELLANEOUS
PROVISIONS
Section
12.01 Successor
to Company.
Prior
to termination of the Company’s responsibilities and duties under this Agreement
pursuant to Section 8.04, 10.01 or 11.01, the Purchaser shall, (i) succeed
to
and assume all of the Company’s responsibilities, rights, duties and obligations
under this Agreement, or (ii) appoint a successor having the characteristics
set
forth in Section 8.02 and which shall succeed to all rights and assume all
of
the responsibilities, duties and liabilities of the Company under this Agreement
prior to the termination of the Company’s responsibilities, duties and
liabilities under this Agreement. In connection with such appointment and
assumption, the Purchaser may make such arrangements for the compensation of
such successor out of payments on Mortgage Loans as it and such successor shall
agree. In the event that the Company’s duties, responsibilities and liabilities
under this Agreement should be terminated pursuant to the aforementioned
sections, the Company 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 Company pursuant to the
aforementioned sections shall not become effective until a successor shall
be
appointed pursuant to this Section 12.01 and shall in no event relieve the
Company of the representations and warranties made pursuant to Sections 3.01
and
3.02 and the remedies available to the Purchaser under Sections 2.03, 3.03
and
6.02, it being understood and agreed that the provisions of such Sections 2.03,
3.01, 3.02, 3.03 and 6.02 shall be applicable to the Company notwithstanding
any
such sale, assignment, resignation or termination of the Company or the
termination of this Agreement.
Any
successor appointed, as provided herein, shall execute, acknowledge and deliver
to the Company and the Purchaser an instrument accepting such appointment,
wherein the successor shall make the representations and warranties set forth
in
Section 3.01, except for the portion of subsection (h) relating to sale of
the
mortgage loans and all of subsections (j) and (l) thereof, whereupon such
successor shall become fully vested
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with
all of the rights, powers, duties, responsibilities, obligations and liabilities
of the Company, with like effect as if originally named as a party to this
Agreement. Any termination or resignation of the Company or termination of
this
Agreement pursuant to Section 8.04, 10.01, 11.01, 11.02 or 11.03 shall not
affect any claims that any Purchaser may have against the Company arising out
of
the Company’s actions or failure to act prior to any such termination or
resignation.
The
Company shall deliver promptly to the successor servicer the funds in the
Custodial Account, Subsidy Account and Escrow Account and all Mortgage Files
and
related documents and statements held by it hereunder and the Company shall
account for all funds and shall execute and deliver such instruments and do
such
other things as may reasonably be required to more fully and definitively vest
in the successor all such rights, powers, duties, responsibilities, obligations
and liabilities of the Company.
Upon
a successor’s acceptance of appointment as such, the Company shall notify by
mail the Purchaser of such appointment in accordance with the procedures set
forth in Section 12.05.
Section
12.02 Amendment.
This
Agreement may be amended from time to time by written agreement signed by the
Company and the Purchaser.
Section
12.03 Governing
Law.
This
Agreement shall be construed in accordance with the laws of the State of New
York and the obligations, rights and remedies of the parties hereunder shall
be
determined in accordance with such laws.
Each
of the Company and the Purchaser hereby knowingly, voluntarily and intentionally
waives any and all rights it may have to a trial by jury in respect or any
litigation based on, or arising out of, under, or in connection with, this
Agreement, or any other documents and instruments executed in connection
herewith, or any course of conduct, course of dealing, statements (whether
oral
or written), or actions of the Company or the Purchaser. This provision is
a
material inducement for the Purchaser to enter into this Agreement.
Section
12.04 Duration
of Agreement.
This
Agreement shall continue in existence and effect until terminated as herein
provided. This Agreement shall continue notwithstanding transfers of the
Mortgage Loans by the Purchaser.
Section
12.05 Notices.
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if personally delivered at or mailed by
registered mail, postage prepaid, addressed as follows:
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|
(1)
|
if
to the Company with respect to servicing
issues:
|
Xxxxx
Fargo Bank, N.A.
1
Home Campus, MAC #2401-042
Des
Moines, Iowa 50328-0001
Attention:
Xxxx X. Xxxxx
Tel:
(000) 000-0000; Fax: (000) 000-0000
if
to the Company with respect to all other issues:
Xxxxx
Fargo Bank, N.A.
0000
Xxx Xxxxxxxxxx Xxx, MAC X3906-012
Frederick,
Maryland 21703
Attention:
Structured Finance Manager
Fax:
(000) 000-0000
in
each instance with a copy to:
Xxxxx
Fargo Bank, N.A.
1
Home Campus, MAC #X2401-06T
Des
Moines, Iowa 50328-0001
Attention:
General Counsel
Tel:
(000) 000-0000; Fax: (000) 000-0000
or
such other address as may hereafter be furnished to the Purchaser in writing
by
the Company; and
|
(2)
|
if
to Purchaser:
|
Xxxxxxx
Xxxxx Mortgage Company
000
Xxxxxx Xxxxxx Xxxxx, Xxxxx 000 Xxxxx
St.
Petersburg, FL 33701
Attention:
Xxxxxxxxx Xxxxxxx
Tel:
(000) 000-0000; Fax: (000) 000-0000
With
a copy to:
Xxxxxxx
Xxxxx Mortgage Company
00
Xxxxx Xxxxxx, Xxx Xxxx, XX 00000
Attention:
Xxxxxx Xxxxxxx
Tel:
(000) 000-0000; Fax: (000) 000-0000
or
such other address as may hereafter be furnished to the Company in writing
by
the Purchaser.
Section
12.06 Severability
of Provisions.
If
any one or more of the covenants, agreements, provisions or terms of this
Agreement shall be held invalid for any reason whatsoever, then such
covenants,
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agreements,
provisions or terms shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Agreement and shall in no way affect
the
validity or enforceability of the other provisions of this Agreement.
Section
12.07 Relationship
of Parties.
Nothing
herein contained shall be deemed or construed to create a partnership or joint
venture between the parties hereto and the services of the Company shall be
rendered as an independent contractor and not as agent for the Purchaser.
Section
12.08 Execution;
Successors and Assigns.
This
Agreement may be executed in one or more counterparts and by the different
parties hereto on separate counterparts, each of which, when so executed, shall
be deemed to be an original; such counterparts, together, shall constitute
one
and the same agreement. Subject to Section 8.04 hereof, this Agreement shall
inure to the benefit of and be binding upon, and shall be enforceable by, the
Company and the Purchaser and their respective successors and assigns, including
without limitation, any trustee appointed by the Purchaser with respect to
any
Whole Loan Transfer or Securitization Transaction.
Section
12.09 Recordation
of Assignments of Mortgage.
To
the extent permitted by Applicable Law, as to any Mortgage Loan which is not
a
MERS Mortgage Loan, each of the Assignments of Mortgage is subject to
recordation in all appropriate public offices for real property records in
all
the counties or other comparable jurisdictions in which any or all of the
Mortgaged Properties are situated, and in any other appropriate public recording
office or elsewhere, which recordation shall have been effected at the Company’s
expense in the event recordation is either necessary under Applicable Law or
requested by the Purchaser at its sole option.
Section
12.10 Assignment
by Purchaser.
The
Purchaser shall have the right, without the consent of the Company but subject
to the limit set forth in Section 2.02 hereof, to assign, in whole or in part,
its interest under this Agreement with respect to some or all of the Mortgage
Loans, and designate any Person to exercise any rights of the Purchaser
hereunder, by executing an Assignment, Assumption and Recognition Agreement(s)
substantially in the form(s) of Exhibit F-1 hereto, with respect to any Mortgage
Loan that is subject to a Securitization Transaction in which Xxxxxx Xxx or
Freddie Mac provides a guarantee for some or all of the securities issued
therein or Form F-2 hereto, for Mortgage Loans subject to all other
Securitization Transactions, and the assignee or designee shall accede to the
rights and obligations hereunder of the Purchaser with respect to such Mortgage
Loans. All references to the Purchaser in this Agreement shall be deemed to
include its assignee or designee.
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Section
12.11 Solicitation
of Mortgagor.
Neither
party shall, after each Closing Date, take any action to solicit the refinancing
of any Mortgage Loan. It is understood and agreed that neither (i) promotions
undertaken by either party or any affiliate of either party which are directed
to the general public at large, including, without limitation, mass mailings
based upon commercially acquired mailing lists, newspaper, radio, television
advertisements nor (ii) serving the refinancing needs of a Mortgagor who,
without solicitation, contacts either party in connection with the refinancing
of such Mortgage or Mortgage Loan, shall constitute solicitation under this
Section 12.11.
Section
12.12 General
Interpretative 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)
|
any
reference in this Agreement to this Agreement or any other agreement,
document, or instrument shall be a reference to this Agreement or
any
other such agreement, document, or instrument as the same has been
amended, modified, or supplemented in accordance with the terms hereof
and
thereof (as applicable);
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|
(c)
|
accounting
terms not otherwise defined herein have the meanings assigned to
them in
accordance with generally accepted accounting principles;
|
|
(d)
|
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, unless the context shall otherwise require;
|
|
(e)
|
a
reference to a subsection without further reference to a section
is a
reference to such subsection as contained in the same section in
which the
reference appears, and this rule shall also apply to Paragraphs and
other
subdivisions;
|
|
(f)
|
a
reference to a “day” shall be a reference to a calendar day;
|
|
(g)
|
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
|
|
(h)
|
the
terms “include” and “including” shall mean without limitation by reason of
enumeration.
|
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IN
WITNESS WHEREOF, the Company and the Purchaser have caused their names to be
signed hereto by their respective duly authorized officers as of the day and
year first above written.
XXXXXXX
XXXXX MORTGAGE
COMPANY,
as Purchaser
|
By:
|
Xxxxxxx
Xxxxx Real Estate Funding Corp.,
|
|
General
Partner
|
By:_____________________________________________
Name:
Title:
Name:
Title:
XXXXX
FARGO BANK, N.A.,
as
Company
By:_____________________________________________
Name:
Title:
Name:
Title:
|
STATE
OF FLORIDA
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF PINELLAS
|
)
|
On
the _____ day of __________, 2004 before me, a Notary Public in and for said
State, personally appeared ____________________, known to me to be the
______________________ of Xxxxxxx Xxxxx Real Estate Funding Corp., the general
partner of Xxxxxxx Xxxxx Mortgage Company, the partnership that executed the
within instrument and also known to me to be the person who executed it on
behalf of said partnership, and acknowledged to me that such corporation
executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand affixed my office seal the day
and
year in this certificate first above written.
Notary
Public
My
commission expires:
|
STATE
OF MARYLAND
|
)
|
|
|
)
|
ss:
|
|
|
COUNTY
OF WASHINGTON
|
)
|
On
the _____ day of __________, 2004 before me, a Notary Public in and for said
State, personally appeared _________________, known to me to be the
___________________ of Xxxxx Fargo Bank, N.A., the national banking organization
that executed the within instrument and also known to me to be the person who
executed it on behalf of said bank, and acknowledged to me that such bank
executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand affixed my office seal the day
and
year in this certificate first above written.
Notary
Public
My
commission expires:
EXHIBIT
A
MORTGAGE
LOAN SCHEDULE
[See
Schedule A to Assignment and Conveyance Agreement.]
A-1
EXHIBIT
B
CONTENTS
OF EACH MORTGAGE FILE
With
respect to each Mortgage Loan, the Mortgage File shall include each of the
following items, which shall be available for inspection by the Purchaser and
any prospective Purchaser, and which shall be retained by the Company in the
Servicing File or delivered to the Custodian pursuant to Sections 2.01 and
2.03
of the Master Seller’s Warranties and the Servicing Agreement to which this
Exhibit is attached (the “Agreement”):
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1.
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The
original Mortgage Note bearing all intervening endorsements, endorsed
“Pay
to the order of ______________, without recourse” and signed in the name
of the Company by an authorized officer (in the event that the Mortgage
Loan was acquired by the Company in a merger, the signature must
be in the
following form: “[Company], successor by merger to [name of predecessor]”;
and in the event that the Mortgage Loan was acquired or originated
by the
Company while doing business under another name, the signature must
be in
the following form: “[Company], formerly know as [previous name]”).
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2.
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The
original of any personal endorsement, surety and/or guaranty agreement
executed in connection with the Mortgage Note, if any.
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3.
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Except
as set forth below, and for each mortgage loan that is not a MERS
Mortgage
Loan, the original Mortgage, with evidence of recording thereon or
a
certified true and correct copy of the Mortgage sent for recordation.
If
in connection with any Mortgage Loan, the Company 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 Company 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 Company 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 Company; 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 or by the title insurance
company that issued the title policy to be a true and complete copy
of the
original recorded Mortgage.
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4.
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The
originals or certified true copies of all assumption, modification,
consolidation or extension agreements, with evidence of recording
noted
thereon
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B-1
if
recordation is required to maintain the lien of the mortgage or is otherwise
required, or, if recordation is not so required, an original or copy of any
such
assumption, modification, consolidation or extension agreements.
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5.
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The
original Assignment of Mortgage for each Mortgage Loan, in form and
substance acceptable for recording, from the Company to “______________”
or as otherwise directed by the Purchaser. If the Mortgage Loan was
acquired by the Company in a merger, the Assignment of Mortgage must
be
made by “[Company], successor by merger to [name of predecessor].” If the
Mortgage Loan was acquired or originated by the Company while doing
business under another name, the Assignment of Mortgage must be by
“[Company], formerly know as [previous name].” Subject to the foregoing
and where permitted under the Applicable Laws of the jurisdiction
wherein
the Mortgaged Property is located, such Assignments of Mortgage may
be
made by blanket assignments for Mortgage Loans secured by the Mortgaged
Properties located in the same county.
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6.
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Originals
or certified true copies of all intervening assignments of the Mortgage
necessary to show a complete chain of title from the original mortgagee
to
the Company, 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 Company 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 Officer’s Certificate of the Company 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 or by the title insurance company that issued the title policy
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 Company; 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.
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7.
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With
respect to the Non-Conventional Mortgage Loans, the MIC, LGC or Loan
Note
Guarantee, as applicable, where required pursuant to the Agreement,
or any
other evidence of FHA insurance coverage or VA or RHS guaranty, as
the
case may be, that is acceptable to the Purchaser.
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8.
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The
original mortgage policy of title insurance or other evidence of
title
such as a copy of the title commitment or copy of the preliminary
title
commitment.
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9.
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Any
security agreement, chattel mortgage or equivalent executed in connection
with the Mortgage.
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B-2
With
respect to each Mortgage Loan, the Mortgage File shall include each of the
following items to the extent in the possession of the Company or in the
possession of the Company’s agent(s):
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10.
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With
respect to Conventional Mortgage Loans, verification of the Primary
Mortgage Insurance Policy.
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11.
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The
original hazard insurance policy and, if required by law, flood insurance
policy, in accordance with Section 4.10 of the Agreement.
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12.
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Residential
loan application.
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13.
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Mortgage
Loan closing statement.
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14.
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Verification
of employment and income, unless originated under the Company’s Limited
Documentation program, Xxxxxx Xxx Timesaver Plus.
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15.
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Verification
of acceptable evidence of source and amount of down payment.
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16.
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Credit
report on the Mortgagor, if available.
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17.
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Residential
appraisal report.
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18.
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Photograph
of the Mortgaged Property.
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19.
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Survey
of the Mortgaged Property, if required by the title company or Applicable
Law.
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20.
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Copy
of each instrument necessary to complete identification of any exception
set forth in the exception schedule in the title policy, i.e., map
or
plat, restrictions, easements, sewer agreements, home association
declarations, etc.
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21.
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All
required disclosure statements.
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22.
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If
available, termite report, structural engineer’s report, water potability
and septic certification.
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23.
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Sales
contract, if applicable.
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24.
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Evidence
of payment of taxes and insurance premiums, insurance claim files,
correspondence, current and historical computerized data files, and
all
other processing, underwriting and closing papers and records which
are
customarily contained in a mortgage loan file and which are required
to
document the Mortgage Loan or to service the Mortgage Loan.
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25.
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Amortization
schedule, if available.
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26.
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Original
power of attorney, if applicable.
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B-3
In
the event an Officer’s Certificate of the Company is delivered to the Custodian
because of a delay caused by the public recording office in returning any
recorded document, the Company shall deliver to the Custodian, within 240 days
of the related Closing Date, an Officer’s Certificate which shall (i) identify
the recorded document, (ii) state that the recorded document has not been
delivered to the Custodian due solely to a delay caused by the public recording
office, (iii) state the amount of time generally required by the applicable
recording office to record and return a document submitted for recordation,
and
(iv) specify the date the applicable recorded document will be delivered to
the
Custodian. The Company shall be required to deliver to the Custodian the
applicable recorded document by the date specified in sub clause (iv) above.
An
extension of the date specified in sub clause (iv) above may be requested from
the Purchaser, which consent shall not be unreasonably withheld.
Notwithstanding
sub-clauses 1 and 6 above, the Purchaser acknowledges that the Company may
deliver (i) a Mortgage Note for which the chain of endorsements is not identical
to that of the intervening Assignments of Mortgage with respect to such Mortgage
Note, which shall not affect the enforceability of such Mortgage Note, and/or
(ii) intervening Assignments of Mortgage which are not identical to the chain
of
endorsements with respect to such Mortgage Note, which shall not affect the
validity of such intervening Assignment of Mortgage; provided, however, that
such acknowledgement shall in no way operate to negate the Purchaser’s remedies
for the Company’s breach of the representations and warranties under this
Agreement.
B-4
EXHIBIT
C
FORM
OF CUSTODIAL AGREEMENT
See
attached
C-1
EXHIBIT
D
FORM
OF OPINION OF COUNSEL
Re: Sale
of Series [ ] Mortgage Loans by
Xxxxx
Fargo Bank, N.A., to
Xxxxxxx
Xxxxx Mortgage Company
Dear
Sir/Madam:
I
am _____ of Xxxxx Fargo Bank, N.A. and have acted as counsel to Xxxxx Fargo
Bank, N.A. (the “Company”), with respect to certain matters in connection with
the sale by the Company of certain mortgage loans (the “Mortgage Loans”)
pursuant to that certain Amended and Restated Master Seller’s Warranties and
Servicing Agreement designated as Mortgage Loan Series the “Amended and Restated
Master Seller’s Warranties and Servicing Agreement” by and between the Company
and Xxxxxxx Xxxxx Mortgage Company (the “Purchaser”), dated as of March 1, 2006,
which sale is in the form of whole Mortgage Loans. The Mortgage Loans are listed
on Schedule A to the Assignment and Conveyance Agreement. Capitalized terms
not
otherwise defined herein have the meanings set forth in the Amended and Restated
Master Seller’s Warranties and Servicing Agreement.
I
have examined the following documents:
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1.
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the
Amended and Restated Master Seller’s Warranties and Servicing Agreement;
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2.
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the
Custodial Agreement;
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3.
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the
form of endorsement of the Mortgage Notes; and
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4.
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such
other documents, records and papers as I have deemed necessary and
relevant as a basis for this opinion.
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To
the extent I have deemed necessary and proper, I have relied upon the
representations and warranties of the Company contained in the Amended and
Restated Master Seller’s Warranties and Servicing Agreement. I have assumed the
authenticity of all documents submitted to me as originals, the genuineness
of
all signatures, the legal capacity of natural persons and the conformity to
the
originals of all documents.
Based
upon the foregoing, it is my opinion that:
The
Company is a national banking association duly organized, validly existing
and
in good standing under the laws of the United States.
The
Company has the power to engage in the transactions contemplated by the Amended
and Restated Master Xxxxxx’s Warranties and Servicing Agreement and the
Custodial Agreement and all requisite power, authority and legal right to
execute and deliver the Amended and
D-1
Restated
Master Seller’s Warranties and Servicing Agreement, the Custodial Agreement and
the Mortgage Loans, and to perform and observe the terms and conditions of
such
instruments.
Each
person who, as an officer or attorney-in-fact of the Company, signed (a) the
Amended and Restated Master Seller’s Warranties and Servicing Agreement, (b) the
Custodial Agreement , and (c) any other document delivered prior hereto or
on
the date hereof in connection with the sale and servicing of the Mortgage Loans
in accordance with the Amended and Restated Master Seller’s Warranties and
Servicing Agreement and the person was, at the respective times of such signing
and delivery, and is, as of the date hereof, duly elected or appointed,
qualified and acting as such officer or attorney-in-fact, and the signatures
of
such persons appearing on such documents are their genuine signatures.
Each
of the Amended and Restated Master Seller’s Warranties and Servicing Agreement,
the Custodial Agreement and the Mortgage Loans, has been duly authorized,
executed and delivered by the Company and is a legal, valid and binding
agreement enforceable in accordance with its terms, subject to the effect of
insolvency, liquidation, conservatorship and other similar laws administered
by
the Federal Deposit Insurance Corporation affecting the enforcement of contract
obligations of insured banks and subject to the application of the rules of
equity, including those respecting the availability of specific performance,
none of which will materially interfere with the realization of the benefits
provided thereunder or with the Purchaser’s ownership of the Mortgage Loans.
The
Company has been duly authorized to allow any of its officers to execute any
and
all documents by original or facsimile signature in order to complete the
transactions contemplated by the Amended and Restated Master Seller’s Warranties
and Servicing Agreement and the Custodial Agreement, and in order to execute
the
endorsements to the Mortgage Notes and the assignments of the Mortgages, and
the
original or facsimile signature of the officer at the Company executing the
Amended and Restated Master Seller’s Warranties and Servicing Agreement, the
Custodial Agreement, the endorsements to the Mortgage Notes and the assignments
of the Mortgages represents the legal and valid signature of said officer of
the
Company.
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 Amended and Restated Master
Seller’s Warranties and Servicing Agreement, the Custodial Agreement or the sale
and delivery of the Mortgage Loans or the consummation of the transactions
contemplated by the Amended and Restated Master Seller’s Warranties and
Servicing Agreement and the Custodial Agreement; or (ii) any required consent,
approval, authorization or order has been obtained by the Company.
Neither
the consummation of the transactions contemplated by, nor the fulfillment of
the
terms of the Amended and Restated Master Seller’s Warranties and Servicing
Agreement and the Custodial Agreement, will conflict with or results in or
will
result in a breach of or constitutes or will constitute a default under the
charter or by-laws of the Company, the terms of any indenture or other agreement
or instrument to which the Company is a party or by which it is bound or to
which it is subject, or violates any statute or order, rule, regulations, writ,
injunction or decree of
D-2
any
court, governmental authority or regulatory body to which the Company is subject
or by which it is bound.
There
is no action, suit, proceeding or investigation pending or, to the best of
my
knowledge, threatened against the Company which, in my opinion, 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 Amended and Restated Master Seller’s Warranties and Servicing
Agreement, and the Custodial Agreement, or of any action taken or to be taken
in
connection with the transactions contemplated thereby, or which would be likely
to impair materially the ability of the Company to perform under the terms
of
the Amended and Restated Master Seller’s Warranties and Servicing Agreement and
the Custodial Agreement.
For
purposes of the foregoing, I have not regarded any legal or governmental
actions, investigations or proceedings to be “threatened” unless the potential
litigant or governmental authority has manifested to the legal department of
the
Company or an employee of the Company responsible for the receipt of process
a
present intention to initiate such proceedings; nor have I regarded any legal
or
governmental actions, investigations or proceedings as including those that
are
conducted by state or federal authorities in connection with their routine
regulatory activities. The sale of each Mortgage Note and Mortgage as and in
the
manner contemplated by the Amended and Restated Master Xxxxxx’s Warranties and
Servicing Agreement is sufficient fully to transfer all right, title and
interest of the Company thereto as noteholder and mortgagee, apart from the
rights to service the Mortgage Loans pursuant to the Amended and Restated Master
Seller’s Warranties and Servicing Agreement.
The
form of endorsement that is to be used with respect to the Mortgage Loans is
legally valid and sufficient to duly endorse the Mortgage Notes to the
Purchaser. Upon the completion of the endorsement of the Mortgage Notes and
the
completion of the assignments of the Mortgages, and the recording thereof,
the
endorsement of the Mortgage Notes, the delivery to the Custodian of the
completed assignments of the Mortgages, and the delivery of the original
endorsed Mortgage Notes to the Custodian would be sufficient to permit the
entity to which such Mortgage Note is initially endorsed at the Purchaser’s
direction, and to whom such assignment of Mortgages is initially assigned at
the
Purchaser’s direction, to avail itself of all protection available under
Applicable Law against the claims of any present or future creditors of the
Company, and would be sufficient to prevent any other sale, transfer,
assignment, pledge or hypothecation of the Mortgages and the Mortgage Notes
by
the Company from being enforceable, such that in a properly presented and argued
case under title 11, United States Code (the “Bankruptcy Code”), in which the
Company were the debtor, a bankruptcy court having jurisdiction over the Company
would consider the transfer of the Mortgage Loans from the Company to the
Purchaser to be a true sale of the Mortgage Loans from the Company to the
Purchaser and not a secured loan by the Purchaser to the Company and,
accordingly, the Mortgage Loans and the payments and other collections thereon
(other than those at any given time that may be commingled with unrelated funds
held by the Company) and the proceeds thereof transferred to the Purchaser
by
the Company in accordance with the Company’s Warranties and Servicing Agreement
would not be deemed property of the Company’s estate for
D-3
purposes
of Section 541 of the Bankruptcy Code or be subject to the automatic stay
provisions of Section 362 of the Bankruptcy Code.
This
opinion is given to you for your sole benefit, and no other person or entity
is
entitled to rely hereon except that the purchaser or purchasers to which you
initially and directly resell the Mortgage Loans may rely on this opinion as
if
it were addressed to them as of its date.
Sincerely,
D-4
EXHIBIT
E
ITEMS
TO BE INCLUDED IN MONTHLY REMITTANCE ADVICE
On
each Closing Date, the Company shall deliver to the Purchaser an initial set-up
report (the “Initial Set-up Report”), dated as of the related Cut-off Date,
which shall set forth certain information regarding the related pool of Mortgage
Loans. Such information shall include, without limitation, the principal balance
of each Mortgage Loan, the interest rate, delinquency status and any other
information requested by the Purchaser. For each month after each Closing Date,
the Company shall provide a monthly remittance advice report (the “Monthly
Remittance Advice Reports”) to the Purchaser, which shall set forth for each
related Mortgage Loan, the trial balance, interest rate, delinquency,
foreclosure and related default information, and such other information as
may
be requested by the Purchaser. The Initial Set-up Report and the Monthly
Remittance Advice Reports will be delivered in an Excel format or in such other
electronic format as agreed to by the parties. Each Initial Set-up Report and
Monthly Remittance Advice Report shall contain only such information as is
readily available to the Company and is mutually agreed to by the Company and
the Purchaser.
E-1
EXHIBIT
F-1
FORM
OF ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT,
ASSUMPTION AND RECOGNITION AGREEMENT made this ___ day of ________, 200_ (this
“Agreement”), among Xxxxx Fargo Bank, N.A., as servicer (the “Servicer”),
_______________________, as assignee (the “Assignee”), and
_____________________, as assignor (the “Depositor”) and as acknowledged by
_______________________, as master servicer (the “Master Servicer”).
WHEREAS,
Xxxxxxx Xxxxx Mortgage Company (the “Assignor”) and the Servicer have entered
into the Amended and Restated Master Seller’s Warranties and Servicing Agreement
dated as of March 1, 2006 (the “Sale and Servicing Agreement”) pursuant to which
the Servicer sold certain mortgage loans listed on the mortgage loan schedule
attached as an exhibit to the Assignment and Conveyance Agreement;
WHEREAS,
the Assignor, the Depositor and the Servicer have entered into an Assignment,
Assumption and Recognition Agreement dated as of ________, 200_ (the “GSMC
Assignment Agreement”), pursuant to which the Assignor assigned its right title
and interest in and to the Mortgage Loans and the Sale and Servicing Agreement
to the Depositor;
WHEREAS,
the Assignee has agreed on certain terms and conditions to purchase from the
Depositor certain mortgage loans (the “Mortgage Loans”), which Mortgage Loans
are subject to the provisions of the Sale and Servicing Agreement and are listed
on the mortgage loan schedule attached as Exhibit
1
hereto (the “Mortgage Loan Schedule”); and
WHEREAS,
pursuant to a Master Servicing and Trust Agreement, dated as of _______, 200_
(together with the _______ 200_ Edition of the Standard Terms thereto, the
“Trust Agreement”), among _______________________, as depositor, Xxxxxxx Xxxxx
Mortgage Company, as Assignor, _______________________, as master servicer
(the
“Master Servicer”), _______________________, as guarantor (the
“Guarantor”)_______________________, as Trustee (the “Trustee”), and
_______________________, as custodian (the “Custodian”), the Depositor will
transfer the Mortgage Loans to the Trustee on behalf of the Assignee, together
with the Depositor’s rights in the Sale and Servicing Agreement.
NOW
THEREFORE, in consideration of the mutual promises contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1.
Assignment
and Assumption.
(a)
The Depositor hereby assigns to the Assignee, as of the date hereof, all of
its
right, title and interest in and to the Mortgage Loans and the Sale and
Servicing Agreement, to the extent relating to the Mortgage Loans, and the
Assignee hereby assumes all of the Depositor’s obligations under the Sale and
Servicing Agreement, to the extent relating to the Mortgage Loans from and
after
________, 200_; the Servicer hereby acknowledges such assignment and assumption
and xxxxxx agrees to the release of the Depositor from any
obligations
under the Sale and Servicing Agreement from and after _____, 200_, to the extent
relating to the Mortgage Loans.
(b)
The Depositor represents and warrants to the Assignee that the Depositor has
not
taken any action which would serve to impair or encumber the Depositor’s
ownership interest in the Mortgage Loans since the date of the Sale and
Servicing Agreement.
(c)
The Servicer and the Depositor, with the consent of the Guarantor, shall have
the right to amend, modify or terminate the Sale and Servicing Agreement without
the joinder of the Assignee with respect to mortgage loans not conveyed to
the
Assignee hereunder; provided, however, that such amendment, modification or
termination shall not affect or be binding on the Assignee.
2.
Accuracy
of the Sale and Servicing Agreement.
The
Servicer and the Depositor represent and warrant to the Assignee that (i)
attached hereto as Exhibit 2 is a true, accurate and complete copy of the Sale
and Servicing Agreement, (ii) the Sale and Servicing Agreement is in full force
and effect as of the date hereof, (iii) the Sale and Servicing Agreement has
not
been amended or modified in any respect, other than by the amendments described
in the recitals hereto and appended to such Sale and Servicing Agreement and
(iv) no notice of termination has been given to the Servicer under the Sale
and
Servicing Agreement. The Servicer, in its capacity as seller and/or servicer
under the Sale and Servicing Agreement, further represents and warrants that
the
representations and warranties contained in Section 3.01 of the Sale and
Servicing Agreement are true and correct as of the Closing Date (as defined
in
the Trust Agreement).
3.
Recognition
of Assignee; Recognition of Master Servicer.
(a)
From and after the date hereof, the Servicer shall note the transfer of the
Mortgage Loans to the Assignee in its books and records, shall recognize the
Assignee as the owner of the Mortgage Loans and shall, subject to clause (b)
below, service the Mortgage Loans for the benefit of the Assignee pursuant
to
the Sale and Servicing Agreement, the terms of which are incorporated herein
by
reference. It is the intention of the Depositor, Servicer and the Assignee
that
the Sale and Servicing Agreement shall be binding upon and inure to the benefit
of the Servicer and the Assignee and their successors and assigns.
(b)
The Servicer further acknowledges that, from and after the date hereof, it
(and
any of its successors under the Sale and Servicing Agreement) will be subject
to
the supervision of the Master Servicer (except that the Master Servicer shall
not be responsible for supervising the servicing of defaulted Mortgage Loans
and
REO Properties) and that the Master Servicer, acting on behalf of the Trustee
as
the owner of the Mortgage Loans, shall have the same rights as were assigned
by
the Assignor, in its capacity as the original purchaser under the Sale and
Servicing Agreement, to the Depositor under the GSMC Assignment Agreement,
and
further assigned by the Depositor to the Trustee, on behalf of the Trust,
hereunder. Such rights will include, without limitation, the right to terminate
the Servicer under the Sale and Servicing Agreement upon the occurrence of
an
event of default thereunder, the right to receive all remittances required
to be
made by the Servicer under the Sale and Servicing Agreement, the
F-1-2
right
to receive all monthly reports and other data required to be delivered by the
Servicer under the Sale and Servicing Agreement, indemnification rights and
the
right to exercise certain rights of consent and approval relating to actions
taken by the Servicer.
(c)
All reports, notices and other written information required to be delivered
to
the Trustee, as the successor in interest to the Assignor and the Depositor
under the Sale and Servicing Agreement, shall also be delivered to the Master
Servicer at the address set forth in Section 10 hereof. All remittances required
to be made to the Trustee, as the successor in interest to the Assignor and
the
Depositor under the Sale and Servicing Agreement, shall be made instead to
the
Master Servicer by wire transfer to the following account:
ABA#
[ ]
For
credit to: SAS CLEARING
Account
Number:
[ ]
For
further credit to: ______________ Collection Acct#
[ ]
4.
Representations
and Warranties of the Assignee.
The Assignee hereby represents and warrants to the Assignor as follows:
(a)
Decision
to Purchase.
The Assignee represents and warrants that it is a sophisticated investor able
to
evaluate the risks and merits of the transactions contemplated hereby, and
that
it has not relied in connection therewith upon any statements or representations
of the Depositor or the Servicer other than those contained in the Sale and
Servicing Agreement or this Agreement.
(b)
Authority.
The Assignee hereto represents and warrants that it is duly and legally
authorized to enter into this Agreement and to perform its obligations hereunder
and under the Sale and Servicing Agreement.
(c)
Enforceability.
The Assignee hereto represents and warrants that this Agreement has been duly
authorized, executed and delivered by it and (assuming due authorization,
execution and delivery thereof by each of the other parties hereto) constitutes
its legal, valid and binding obligation, enforceable in accordance with its
terms, except as such enforcement may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors’
rights generally and by general equitable principles (regardless of whether
such
enforcement is considered in a proceeding in equity or at law).
5.
Representations
and Warranties of the Depositor.
The Depositor hereby represents and warrants to the Assignee as follows:
(a)
Organization.
The Depositor has been duly organized and is validly existing as a limited
partnership in good standing under the laws of the State of New York with full
power and authority (corporate and other) to enter into and perform its
obligations under the Sale and Servicing Agreement and this Agreement.
(b)
Enforceability.
This Agreement has been duly executed and delivered by the
F-1-3
Depositor,
and, assuming due authorization, execution and delivery by each of the other
parties hereto, constitutes a legal, valid, and binding agreement of the
Depositor, enforceable against it in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium, or other similar laws
affecting creditors’ rights generally and to general principles of equity
regardless of whether enforcement is sought in a proceeding in equity or at
law.
(c)
No
Consent.
The execution, delivery and performance by the Depositor of this Agreement
and
the consummation of the transactions contemplated thereby do not require the
consent or approval of, the giving of notice to, the registration with, or
the
taking of any other action in respect of, any state, federal or other
governmental authority or agency, except such as has been obtained, given,
effected or taken prior to the date hereof.
(d)
Authorization;
No Breach.
The execution and delivery of this Agreement have been duly authorized by all
necessary corporate action on the part of the Depositor; neither the execution
and delivery by the Depositor of this Agreement, nor the consummation by the
Depositor of the transactions herein contemplated, nor compliance by the
Depositor with the provisions hereof, will conflict with or result in a breach
of, or constitute a default under, any of the provisions of the governing
documents of the Depositor or any law, governmental rule or regulation or any
material judgment, decree or order binding on the Depositor or any of its
properties, or any of the provisions of any material indenture, mortgage, deed
of trust, contract or other instrument to which the Depositor is a party or
by
which it is bound.
(e)
Actions;
Procedures.
There are no actions, suits or proceedings pending or, to the knowledge of
the
Depositor, threatened, before or by any court, administrative agency, arbitrator
or governmental body (A) with respect to any of the transactions contemplated
by
this Agreement or (B) with respect to any other matter that in the judgment
of
the Depositor will be determined adversely to the Depositor and will if
determined adversely to the Depositor materially adversely affect its ability
to
perform its obligations under this Agreement.
(f)
Prior
Assignments;
Pledges.
Except for the sale to the Assignee, the Depositor has not assigned or pledged
any Mortgage Note or the related Mortgage or any interest or participation
therein.
(g)
Releases.
The Depositor has not satisfied, canceled, or subordinated in whole or in part,
or rescinded any Mortgage, and the Depositor has not released any Mortgaged
Property from the lien of the related Mortgage, in whole or in part, nor has
the
Depositor executed an instrument that would effect any such release,
cancellation, subordination, or rescission. The Depositor has not released
any
Mortgagor, in whole or in part, except in connection with an assumption
agreement or other agreement approved by the FHA, VA or RHS, as applicable,
to
the extent such approval was required.
It
is understood and agreed that the representations and warranties set forth
in
this Section 5 shall survive delivery of the respective Mortgage Files to the
Custodian and shall inure to the benefit of the Assignee and its assigns
notwithstanding any restrictive or qualified endorsement or assignment. Upon
the
discovery by the Depositor, the Master Servicer or the Trustee of a breach
of
the foregoing representations and warranties, the party discovering such breach
shall give prompt written notice thereof to the other parties to this Agreement,
and in no event later
F-1-4
than
two (2) Business Days from the date of such discovery. It is understood and
agreed that the obligations of the Depositor set forth in Section 6 to
repurchase a Mortgage Loan constitute the sole remedies available to the
Assignee and its assigns on their behalf respecting a breach of the
representations and warranties contained in this Section 5.
It
is understood and agreed that the Depositor has made no representations or
warranties to the Assignee other than those contained in this Section 5, and
no
other affiliate of the Depositor has made any representations or warranties
of
any kind to the Assignee.
6.
Repurchase
of Mortgage Loans.
Upon
discovery or notice of any breach by the Depositor of any representation,
warranty, or covenant under this Agreement that materially and adversely affects
the value of any Mortgage Loan or the interest of the Assignee therein (it
being
understood that any such defect or breach shall be deemed to have materially
and
adversely affected the value of the related Mortgage Loan or the interest of
the
Assignee therein if the Assignee incurs a loss as a result of such defect or
breach), the Assignee promptly shall request that the Depositor cure such breach
and, if the Depositor does not cure such breach in all material respects within
60 days from the date on which it is notified of the breach, the Assignee may
enforce the Depositor’s obligation hereunder to purchase such Mortgage Loan from
the Assignee. Notwithstanding the foregoing, however, if such breach is a
Qualification Defect, such cure or repurchase must take place within 45 days
of
the discovery date of such defect.
Except
as specifically set forth herein, the Depositor shall have no responsibility
to
enforce any provision of this Agreement, to oversee compliance hereof, or to
take notice of any breach or default thereof.
7.
Amendment
of the Sale and Servicing Agreements.
In
connection with the transfer of the Mortgage Loans hereunder, the Servicer
agrees that, from and after the date hereof, each Mortgage Loan transferred
hereunder will be subject to, and serviced under, the Sale and Servicing
Agreement under which the Mortgage Loans were originally transferred to the
Assignor. Notwithstanding anything to the contrary set forth herein, the amended
provisions shall apply only to the Mortgage Loans transferred hereunder and
any
other mortgage loans subject to the Agreement shall continue to be serviced
under all of the existing provisions of the applicable Sale and Servicing
Agreement. For purposes of this Section 7, capitalized terms used herein shall
have the meanings assigned to such terms in the Sale and Servicing Agreement.
Each reference herein to “Agreement” shall be understood as a reference to the
Sale and Servicing Agreement and each reference to “Company” shall be understood
as a reference to the Servicer.
(a)
Article I of the Sale and Servicing Agreement shall be amended as follows:
(i)
by adding the following new definitions thereto, in alphabetical
order:
“Guarantor:
With respect to the ___________ 200__ Reconstituted Mortgage Loans, [Freddie
Mac] [Xxxxxx
Xxx],
in its capacity as guarantor of certain classes of securities issued in
connection with the
F-1-5
securitization
of such ____________ 200__ Reconstituted Mortgage Loans; provided that
[Freddie
Mac]
[Xxxxxx
Xxx]
shall be entitled to exercise any rights it may have under this Agreement with
respect to the May 2004 Reconstituted Mortgage Loans in its capacity as
Guarantor only for so long as no uncured default has occurred under its
guarantee and either (x) any portion of the guaranteed securities remains
outstanding or (y) amounts are otherwise owed to the Guarantor under the trust
agreement pursuant to which such guaranteed securities were
issued.”
“___________
200__ Securitization Transaction: A Securitization Transaction of certain of
the
Mortgage Loans by the Purchaser in connection with a securitization thereof
to
be effected on or about __________ __, 200__.”
“___________
200__ Reconstituted Mortgage Loans: The Mortgage Loans transferred pursuant
to
the ___________ 200__ Securitization Transaction and set forth on Exhibit I
of
the GSMC Assignment Agreement and this Agreement.”
(ii)
by amending the definition of “Business Day” by inserting the words “or the
Guarantor or the master servicer with respect to the __________ 200__
Securitization Transaction” immediately following the words “where the parties”
and immediately preceding the words “are located. . . .”
(iii)
by deleting the definition of “Monthly Advance” in its entirety and replacing it
with the following: “With respect to each Remittance Date, advances of interest
and principal required to be made on the Business Day immediately preceding
such
Remittance Date to cover any shortfall between (i) Monthly Payments for each
Mortgage Loan and (ii) the amounts actually collected on account of such Monthly
Payments for each such Mortgage Loan during the related Due Period.”
(iv)
by deleting the definition of “Scheduled Principal Balance” in its entirety and
restating it as follows: “For any Mortgage Loan as of any Due Date subsequent to
the cut-off date for the ___________ 200__ Securitization Transaction up to
and
including, the date on which such Mortgage Loan is finally liquidated or
repurchased from the Trustee, the scheduled principal balance thereof as of
such
cut-off date, as reduced by (i) the principal portion of all Monthly Payments
due on or before such Due Date, to the extent actually paid by the related
Mortgagor or advanced by the Company, or the master servicer or trustee with
respect to the __________ 200__ Securitization Transaction, net of any portion
thereof that represents principal due on a Due Date occurring on or before
the
date on which such proceeds were received, and (ii) the principal portion of
all
Principal Prepayments, including Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds and all payoffs received on or before the last day of the
Principal Prepayment Period preceding the applicable date of determination.”
F-1-6
(b)
Section 2.02 of the Agreement shall be amended by replacing the first reference
to “the Purchaser” in the third paragraph thereof with “the Purchaser or the
Guarantor.”
Section
4.01 of the Agreement shall be amended by replacing the period at the end of
the
first paragraph thereof and adding the following: “;provided that in the event
the guidelines of FHA or VA conflict with the Servicing Guides of the Guarantor,
the Company shall service the loans in accordance with the guidelines of FHA
or
VA, as applicable”. The Company shall be required to reimburse the Purchaser for
any losses suffered as a result of a loss or reduction of FHA or VA coverage
due
to the failure of the Company to comply with the provisions of this Article
IV
not later than 60 days following receipt of notice from the Purchaser of any
such loss.
(c)
Section 4.04 of the Agreement shall be amended by changing each reference to
“Mortgage Loan” or Mortgage Loans” to “__________ 200__ Reconstituted Mortgage
Loan” or “____________ 200__ Reconstituted Mortgage Loans.”
(d)
In addition, clause (8) of Section 4.04 of the Agreement shall be amended by
adding the words “without reimbursement” inside the parentheses immediately
following the words “out of its funds” and preceding the words “which, when
added to all amounts.”
(e)
Section 4.10 of the Agreement shall be amended by replacing the words “Xxxxxx
Xxx or FHLMC” in the first sentence of the first paragraph thereof with the
words “the Guarantor.”
(f)
Section 4.20 of the Agreement shall be amended by adding the following sentence
at the end thereof: “Upon request by the Guarantor, the Servicer shall provide
evidence of such accurate and complete information to the Guarantor as
reasonably requested and in a mutually agreed-upon format.”
(g)
The first sentence of the second paragraph of Section 5.01 of the Agreement
shall be amended by adding the words “accrued from the Remittance Date to (and
including) the date on which such remittance is actually received by the
Purchaser” immediately following the words “interest on such late payment. . . ”
and preceding the words “at an annual rate equal to. . . ”
(h)
Section 5.03 of the Agreement shall be amended by removing the period at the
end
of the third sentence thereof and adding thereto the following
clause:
“provided,
however,
that following the __________ 200__ Securitization Transaction, the Guarantor,
in its reasonable judgment, shall have the right to require the Company to
remit, from its own funds, to the Custodial Account an amount equal to all
advances previously made with respect to the ___________ 200__ Reconstituted
Mortgage Loans out of funds held in the Custodial Account and not previously
repaid from collections on the ___________ 200__ Reconstituted Mortgage Loans,
and in such event, the Company shall thereafter remit all advances with respect
to the ___________ 200__ Reconstituted Mortgage Loans from its own funds. In
no
event shall the preceding sentence be construed as limiting the Company’s right
to (i) pass through late collections on the Mortgages
F-1-7
related
to the ___________ 200__ Reconstituted Mortgage Loans in lieu of making advances
or (ii) reimburse itself for such advances from late collections on such
Mortgages.”.”
(i)
A new Section 5.04 shall be added to Article V immediately after existing
Section 5.03 of the Agreement, which shall be entitled: “Penalties for Failure
to Report Timely and Accurately” and shall state the following:
“At
any time following the ____________ 200__ Securitization Transaction, if the
Company fails (A) to transmit the Monthly Remittance Advice to the entity acting
as the master servicer with respect to such Securitization Transaction by the
Remittance Advice Date, or (B) to transmit the Monthly Remittance Advice in
a
materially accurate and complete manner, then:
(i)
For the first such failure, the Company shall pay to the Master Servicer the
amount of $500; provided,
however,
that the Company shall not be required to make any such payment upon the first
such failure during each successive two-year period following the closing date
for the Securitization Transaction;
(ii)
For the second such failure, the Company shall pay to the Master Servicer the
amount of $750;
(iii)
For the third such failure, the Company shall pay to the Master Servicer the
amount of $1,000; and
(iv)
For the fourth such failure, the Company shall pay to the Master Servicer the
amount of $2,500.
The
payment for any such failure, as stated in (i) through (iv) above, shall be
paid
by the Company to the Master Servicer and the Master Servicer shall remit such
payments to the Guarantor.”
(j)
Section 6.06 of the Agreement shall be amended and restated in its entirety
as
follows:
“The
Purchaser, or its designee, and, following the __________ 200__ Securitization
Transaction, the Guarantor, or its designee, shall have the right to examine
and
audit any and all of the books, records, or other information of the Company,
whether held by the Company or by another on its behalf, with respect to or
concerning this Agreement or, in the case of the Purchaser, the Mortgage Loans,
and, in the case of the Guarantor, the __________ 200__ Reconstituted Mortgage
Loans, during business hours or at such other times as may be reasonable under
applicable circumstances, upon reasonable advance notice; provided, however,
in
the event the Purchaser or the Guarantor, as applicable, have a reasonable
good
faith belief that the books and records of the Company concerning this Agreement
or, in the case of the Purchaser, the Mortgage Loans and,
F-1-8
in
the case of the Guarantor, the ___________ 200__ Reconstituted Mortgage Loans,
are not being maintained in accordance with generally accepted accounting
procedures or Accepted Servicing Practices, the Purchaser and the Guarantor
may
request additional opportunities to examine the Company’s books and records.
Each of the Purchaser and the Guarantor shall pay its own travel expenses
associated with such examination.”
(k)
Section 8.01 of the Agreement shall be amended by adding the words “(and if the
Mortgage Loans are securitized, Xxxxxxx Xxxxx & Co., GS Mortgage Securities
Corp., ________________________, in its capacity as trustee for the trust
issuing securities backed by the Mortgage Loans, and the entity, if any, acting
in the capacity of a master servicer in connection with any securitization)”
immediately following the words “. . . indemnify the Purchaser” and preceding
the words “and hold it harmless . . .”
(l)
Section 8.01 shall further be amended by adding the words “and the Guarantor”
immediately following the words “…indemnify the Purchaser” in the first
sentence.
(m)Section
8.02 of the Agreement shall be amended by adding the words “which shall be
acceptable to the Guarantor” immediately following the words “the successor or
surviving Person shall be an institution which is a Xxxxxx Xxx, Freddie Mac,
HUD
and VA-approved company in good standing” and immediately preceding the words “.
Furthermore, in the event the Company. . . .”
(n)
Section 8.04 of the Agreement shall be amended by adding the following language
to the end of the first paragraph thereof: “Further, following the ____ 200_
Securitization Transaction, the Company may, upon thirty (30) days’ notice to
the Purchaser and the Guarantor, with the written consent of the Purchaser
and
the Guarantor, which consent shall not be unreasonably withheld or delayed
by
either such party and upon written confirmation that the ratings on any
securities backed by the Mortgage Loans will not be downgraded, qualified or
withdrawn, transfer all or part of the administration and servicing of the
Mortgage Loans to any Person that is an institution approved to service loans
on
behalf of FHA and VA, has a net worth of not less than $25,000,000, and
satisfies the requirements of Section 12.01 with respect to the qualifications
of a successor to the Company. In any event, the Company shall pay all costs
associated with such transfer.”
(o)
Section 8.04 shall further be amended by adding “and the Guarantor” immediately
following the words “…consent of the Purchaser” in the second sentence of the
first paragraph thereof.
(p)
Section 8.04 shall further be amended by adding the words “and the Guarantor”
immediately following the words “…consent of the Purchaser” and preceding the
words “,then the Purchaser…” in the third paragraph thereof.
(q)
Section 9.01 of the Agreement shall further be amended by (i) deleting
“Purchaser” at the end of clause (e) of and replacing it with “Xxxxxxx Xxxxx
Mortgage Company without the right of reimbursement,” (ii) deleting “Purchaser”
in the second sentence
F-1-9
of
clause f(iii) and replacing it “Xxxxxxx Xxxxx Mortgage Company,” (iii) adding
the words “without the right of reimbursement” at the end of the second sentence
of clause f(iii), and (iv) add “and the Guarantor” after the first reference to
the “Purchaser” in clause (g).
(r)
Section 10.01 of the Agreement shall be amended by removing the period at the
end of existing clause (ix) and replacing it with a semi-colon and the word
“or”
and adding thereafter the following new clause:
“(x)
the failure of the Company to a maintain Tier I or Tier II rating from Freddie
Mac for two consecutive Due Periods.”
(s)
Section 10.01 shall be further amended by deleting the first sentence of the
immediately succeeding paragraph and replacing it with the following: “So long
as any of the foregoing Events of Default shall not have been remedied, in
addition to whatever rights the Purchaser may have at law or equity to damages,
including injunctive relief and specific performance, the Guarantor or the
Purchaser (with the consent of the Guarantor), by notice in writing to the
Company, may terminate with cause all the rights and obligations of the Company
under this Agreement and in and to the Mortgage Loans and the proceeds thereof.”
(t)
The Purchaser must obtain the consent of the Guarantor to exercise it rights
or
give its consent under Sections 10.02, 11.01, 11.02, 11.03 and 12.02.
(u)
Section 10.02 of the Agreement shall be amended by inserting the words “, with
the consent of the Guarantor,” immediately following the words “the Purchaser”
and preceding the words “may waive any default by the Company.”
(v)
The second sentence of the first paragraph of Section 11.02 of the Agreement
shall be amended by deleting the words “the Company and any Rating Agency” and
replacing them with the words “the Company, any Rating Agency and the
Guarantor.”
(w)The
first sentence of the second paragraph of Section 12.01 of the Agreement shall
be amended by replacing the words “to the Company and to the Purchaser” with the
words “to the Company, the Purchaser and the Guarantor.”
(x)
Section 12.01 shall be further amended by replacing the reference to “6.01” with
“6.02” in the first paragraph thereof.
(y)
Notwithstanding anything to the contrary set forth in Sections 4.16 and 6.01
of
the Agreement, it is understood and agreed that the Servicer shall determine,
in
accordance with the servicing standard described in Section 4.01 of the
Agreement, whether or not to take the actions described in such Sections, and
the consent of the Purchaser shall not be required therefor.
8.
Continuing
Effect.
Except
as contemplated hereby, the Sale and Servicing Agreement shall remain in full
force and effect in accordance with their respective terms.
F-1-10
9.
Governing
Law.
THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS HEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD
TO THE CONFLICT OF LAWS PROVISIONS THEREOF).
EACH
PARTY HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY AND
ALL
RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON,
OR
ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT, OR ANY OTHER
DOCUMENTS AND INSTRUMENTS EXECUTED IN CONNECTION HEREWITH, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN), OR ACTIONS
OF
SUCH PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES TO ENTER
INTO THIS AGREEMENT.
10.
Notices.
Any
notices or other communications permitted or required hereunder or under the
Sale and Servicing Agreement shall be in writing and shall be deemed
conclusively to have been given if personally delivered at or mailed by
registered mail, postage prepaid, and return receipt requested or transmitted
by
telex, telegraph or telecopier and confirmed by a similar mailed writing, to:
|
(1)
|
in
the case of the Servicer,
|
Xxxxx
Fargo Bank, N.A.
1
Home Campus, MAC X2401-042
Des
Moines, Iowa 50328-0001
Attention:
Xxxx Xxxxx
Tel:
(000) 000-0000; Fax: (000) 000-0000
With
a copy to:
Xxxxx
Fargo Bank, N.A.
1
Home Campus, MAC #X2401-06T
Des
Moines, Iowa 50328-0001
Attention:
General Counsel
Tel:
(000) 000-0000; Fax: (000) 000-0000
or
such address as may hereafter be furnished by the Servicer;
or
such address as may hereafter be furnished by the Servicer;
F-1-11
in
the case of the Assignee,
[ ]
or
such other address as may hereafter be furnished by the Assignee,
in
the case of the Depositor,
[ ]
With
a copy to:
[ ]
or
such other address as may hereafter be furnished by the Depositor,
and
in
the case of the Master Servicer,
[ ]
or
such other address as may hereafter be furnished by the Master
Servicer.
11.
Counterparts.
This
Agreement may be executed in counterparts, each of which when so executed shall
be deemed to be an original and all of which when taken together shall
constitute one and the same instrument.
12.
Definitions.
Any
capitalized term used but not defined in this Agreement has the meaning assigned
thereto in the Sale and Servicing Agreement.
F-1-12
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement the day and
year first above written.
ASSIGNEE:
[ ]
By: [ ],
not
in its individual capacity but solely as
Trustee
By:
_____________________________
Name:
Title:
DEPOSITOR:
[ ]
By:
___________________________
Name:
Title:
Acknowledged
by:
SERVICER:
Xxxxx
Fargo Bank, N.A.
By:
___________________________
Name:
Title:
MASTER
SERVICER:
[ ]
By:
___________________________
Name:
Title:
F-1-13
EXHIBIT
1
Mortgage
Loan Schedule
F-1-14
EXHIBIT
2
Sale
and Servicing Agreement
F-1-15
EXHIBIT
F-2
FORM
OFASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT,
ASSUMPTION AND RECOGNITION AGREEMENT made this ___ day of ________, 200_ (this
“Agreement”), among Xxxxx Fargo Bank, N.A., as servicer (the
“Servicer”),
_______________________, as assignee (the “Assignee”), and
_____________________, as assignor (the “Depositor”) and as acknowledged by
_______________________, as master servicer (the “Master Servicer”).
WHEREAS,
Xxxxxxx Xxxxx Mortgage Company (the “Assignor”) and the Servicer have entered
the Master Seller’s Warranties and Servicing Agreement dated as of November 1,
2005 (the “Sale and Servicing Agreement”) pursuant to which the Servicer sold
certain mortgage loans listed on the mortgage loan schedule attached as an
exhibit to the Assignment and Conveyance Agreement;
WHEREAS,
the Assignor, the Depositor and the Servicer have entered into an Assignment,
Assumption and Recognition Agreement dated as of ________, 200_ (the “GSMC
Assignment Agreement”), pursuant to which the Assignor assigned its right title
and interest in and to the Mortgage Loans and the Sale and Servicing Agreement
to the Depositor;
WHEREAS,
the Assignee has agreed on certain terms and conditions to purchase from the
Depositor certain mortgage loans (the “Mortgage Loans”), which Mortgage Loans
are subject to the provisions of the Sale and Servicing Agreement and are listed
on the mortgage loan schedule attached as Exhibit
1
hereto (the “Mortgage Loan Schedule”); and
WHEREAS,
pursuant to a Master Servicing and Trust Agreement, dated as of _______, 200_
(together with the _______ 200_ Edition of the Standard Terms thereto, the
“Trust Agreement”), among _______________________, as depositor, Xxxxxxx Xxxxx
Mortgage Company, as Assignor, _______________________, as master servicer
(the
“Master Servicer”), _______________________, as Trustee (the “Trustee”), and
_______________________, as custodian (the “Custodian”), the Depositor will
transfer the Mortgage Loans to the Trustee on behalf of the Assignee, together
with the Depositor’s rights in the Sale and Servicing Agreement.
NOW
THEREFORE, in consideration of the mutual promises contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1.
Assignment
and Assumption.
(a)
The Depositor hereby assigns to the Assignee, as of the date hereof, all of
its
right, title and interest in and to the Mortgage Loans and the Sale and
Servicing Agreement, to the extent relating to the Mortgage Loans, and the
Assignee hereby assumes all of the Depositor’s obligations under the Sale and
Servicing Agreement, to the extent relating to the Mortgage Loans from and
after
________, 200_; the Servicer hereby acknowledges such assignment and assumption
and xxxxxx agrees to the release of the Depositor from any obligations under
the
Sale and Servicing Agreement from and after _____, 200_, to the extent relating
to the Mortgage Loans.
F-2-1
(b)
The Depositor represents and warrants to the Assignee that the Depositor has
not
taken any action which would serve to impair or encumber the Depositor’s
ownership interest in the Mortgage Loans since the date of the Sale and
Servicing Agreement.
(c)
The Servicer and the Depositor shall have the right to amend, modify or
terminate the Sale and Servicing Agreement without the joinder of the Assignee
with respect to mortgage loans not conveyed to the Assignee hereunder;
provided,
however,
that such amendment, modification or termination shall not affect or be binding
on the Assignee.
2.
Accuracy
of Servicing Agreement.
The
Servicer and the Depositor represent and warrant to the Assignee that (i)
attached hereto as Exhibit
2
is a true, accurate and complete copy of the Sale and Servicing Agreement,
(ii)
the Sale and Servicing Agreement is in full force and effect as of the date
hereof, (iii) the Sale and Servicing Agreement has not been amended or modified
in any respect, other than by the amendments described in the recitals hereto
and appended to such Sale and Servicing Agreement and (iv) no notice of
termination has been given to the Servicer under the Sale and Servicing
Agreement. The Servicer, in its capacity as seller and/or servicer under the
Sale and Servicing Agreement, further represents and warrants that the
representations and warranties contained in Section 3.01 of the Sale and
Servicing Agreement are true and correct as of the Closing Date (as defined
in
the Trust Agreement).
3.
Recognition
of Assignee; Recognition of Master Servicer.
(a)
From and after the date hereof, the Servicer shall note the transfer of the
Mortgage Loans to the Assignee in its books and records, shall recognize the
Assignee as the owner of the Mortgage Loans and shall, subject to clause (b)
below, service the Mortgage Loans for the benefit of the Assignee pursuant
to
the Sale and Servicing Agreement, the terms of which are incorporated herein
by
reference. It is the intention of the Depositor, Servicer and the Assignee
that
the Sale and Servicing Agreement shall be binding upon and inure to the benefit
of the Servicer and the Assignee and their successors and assigns.
(b)
The Servicer further acknowledges that, from and after the date hereof, it
(and
any of its successors under the Sale and Servicing Agreement) will be subject
to
the supervision of the Master Servicer (except that the Master Servicer shall
not be responsible for supervising the servicing of defaulted Mortgage Loans
and
REO Properties) and that the Master Servicer, acting on behalf of the Trustee
as
the owner of the Mortgage Loans, shall have the same rights as were assigned
by
the Assignor, in its capacity as the original purchaser under the Sale and
Servicing Agreement, to the Depositor under the GSMC Assignment Agreement,
and
further assigned by the Depositor to the Trustee, on behalf of the Trust,
hereunder. Such rights will include, without limitation, the right to terminate
the Servicer under the Sale and Servicing Agreement upon the occurrence of
an
event of default thereunder, the right to receive all remittances required
to be
made by the Servicer under the Sale and Servicing Agreement, the right to
receive all monthly reports and other data required to be delivered by the
Servicer under the Sale and Servicing Agreement, indemnification rights and
the
right to exercise certain rights of consent and approval relating to actions
taken by the Servicer.
F-2-2
(c)
All reports, notices and other written information required to be delivered
to
the Trustee, as the successor in interest to the Assignor and the Depositor
under the Sale and Servicing Agreement, shall also be delivered to the Master
Servicer at the address set forth in Section 10 hereof. All remittances required
to be made to the Trustee, as the successor in interest to the Assignor and
the
Depositor under the Sale and Servicing Agreement, shall be made instead to
the
Master Servicer by wire transfer to the following account:
_______________________
ABA#
[ ]
For
credit to: SAS CLEARING Account Number: [ ]
For
further credit to: _______________________ Collection Acct# [ ]
4.
Representations
and Warranties of the Assignee. The Assignee hereby represents and warrants
as
follows:
(a)
Decision
to Purchase.
The Assignee represents and warrants that it is a sophisticated investor able
to
evaluate the risks and merits of the transactions contemplated hereby, and
that
it has not relied in connection therewith upon any statements or representations
of the Depositor or the Servicer other than those contained in the Sale and
Servicing Agreement or this Agreement.
(b)
Authority.
The Assignee hereto represents and warrants that it is duly and legally
authorized to enter into this Agreement and to perform its obligations hereunder
and under the Sale and Servicing Agreement.
(c)
Enforceability.
The Assignee hereto represents and warrants that this Agreement has been duly
authorized, executed and delivered by it and (assuming due authorization,
execution and delivery thereof by each of the other parties hereto) constitutes
its legal, valid and binding obligation, enforceable in accordance with its
terms, except as such enforcement may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors’
rights generally and by general equitable principles (regardless of whether
such
enforcement is considered in a proceeding in equity or at law).
5.
Representations
and Warranties of the Depositor. The Depositor hereby represents and warrants
as
follows:
(a)
Organization.
The Depositor has been duly organized and is validly existing as a limited
partnership in good standing under the laws of the State of New York with full
power and authority (corporate and other) to enter into and perform its
obligations under the Sale and Servicing Agreement and this
Agreement.
(b)
Enforceability.
This Agreement has been duly executed and delivered by the Depositor, and,
assuming due authorization, execution and delivery by each of the other parties
hereto, constitutes a legal, valid, and binding agreement of the Depositor,
enforceable against it in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium, or
F-2-3
other
similar laws affecting creditors’ rights generally and to general principles of
equity regardless of whether enforcement is sought in a proceeding in equity
or
at law.
(c)
No
Consent.
The execution, delivery and performance by the Depositor of this Agreement
and
the consummation of the transactions contemplated thereby do not require the
consent or approval of, the giving of notice to, the registration with, or
the
taking of any other action in respect of, any state, federal or other
governmental authority or agency, except such as has been obtained, given,
effected or taken prior to the date hereof.
(d)
Authorization;
No Breach.
The execution and delivery of this Agreement have been duly authorized by all
necessary corporate action on the part of the Depositor; neither the execution
and delivery by the Depositor of this Agreement, nor the consummation by the
Depositor of the transactions herein contemplated, nor compliance by the
Depositor with the provisions hereof, will conflict with or result in a breach
of, or constitute a default under, any of the provisions of the governing
documents of the Depositor or any law, governmental rule or regulation or any
material judgment, decree or order binding on the Depositor or any of its
properties, or any of the provisions of any material indenture, mortgage, deed
of trust, contract or other instrument to which the Depositor is a party or
by
which it is bound.
(e)
Actions;
Procedures.
There are no actions, suits or proceedings pending or, to the knowledge of
the
Depositor, threatened, before or by any court, administrative agency, arbitrator
or governmental body (A) with respect to any of the transactions contemplated
by
this Agreement or (B) with respect to any other matter that in the judgment
of
the Depositor will be determined adversely to the Depositor and will if
determined adversely to the Depositor materially adversely affect its ability
to
perform its obligations under this Agreement.
(f)
Prior
Assignments; Pledges.
Except for the sale to the Assignee, the Depositor has not assigned or pledged
any Mortgage Note or the related Mortgage or any interest or participation
therein.
(g)
Releases.
The Depositor has not satisfied, canceled, or subordinated in whole or in part,
or rescinded any Mortgage, and the Depositor has not released any Mortgaged
Property from the lien of the related Mortgage, in whole or in part, nor has
the
Depositor executed an instrument that would effect any such release,
cancellation, subordination, or rescission. The Depositor has not released
any
Mortgagor, in whole or in part, except in connection with an assumption
agreement or other agreement approved by the FHA, VA or RHS, as applicable,
to
the extent such approval was required.
It
is understood and agreed that the representations and warranties set forth
in
this Section 5 shall survive delivery of the respective Mortgage Files to the
Custodian and shall inure to the benefit of the Assignee and its assigns
notwithstanding any restrictive or qualified endorsement or assignment. Upon
the
discovery by the Depositor, the Master Servicer or the Trustee of a breach
of
the foregoing representations and warranties, the party discovering such breach
shall give prompt written notice thereof to the other parties to this Agreement,
and in no event later than two (2) Business Days from the date of such
discovery. It is understood and agreed that the obligations of the Depositor
set
forth in Section 6 to repurchase a Mortgage Loan constitute the
F-2-4
sole
remedies available to the Assignee and its assigns on their behalf respecting
a
breach of the representations and warranties contained in this Section 5.
It
is understood and agreed that the Depositor has made no representations or
warranties to the Assignee other than those contained in this Section 5, and
no
other affiliate of the Depositor has made any representations or warranties
of
any kind to the Assignee.
6.
Repurchase
of Mortgage Loans.
Upon
discovery or notice of any breach by the Depositor of any representation,
warranty, or covenant under this Agreement that materially and adversely affects
the value of any Mortgage Loan or the interest of the Assignee therein (it
being
understood that any such defect or breach shall be deemed to have materially
and
adversely affected the value of the related Mortgage Loan or the interest of
the
Assignee therein if the Assignee incurs a loss as a result of such defect or
breach), the Assignee promptly shall request that the Depositor cure such breach
and, if the Depositor does not cure such breach in all material respects within
60 days from the date on which it is notified of the breach, the Assignee may
enforce the Depositor’s obligation hereunder to purchase such Mortgage Loan from
the Assignee. Notwithstanding the foregoing, however, if such breach is a
Qualification Defect, such cure or repurchase must take place within 45 days
of
the discovery date of such defect.
Except
as specifically set forth herein, the Depositor shall have no responsibility
to
enforce any provision of this Agreement, to oversee compliance hereof, or to
take notice of any breach or default thereof.
7.
Amendment
of the Sale and Servicing Agreement.
In
connection with the transfer of the Mortgage Loans hereunder, the Servicer
agrees that, from and after the date hereof, each Mortgage Loan transferred
hereunder will be subject to, and serviced under, the Sale and Servicing
Agreement under which the Mortgage Loans were originally transferred to the
Assignor. Notwithstanding anything to the contrary set forth herein, the amended
provisions shall apply only to the Mortgage Loans transferred hereunder and
any
other mortgage loans subject to the Sale and Servicing Agreement shall continue
to be serviced under all of the existing provisions of the Sale and Servicing
Agreement. For purposes of this Section 7, capitalized terms used herein shall
have the meanings assigned to such terms in the Sale and Servicing Agreement.
Each reference herein to “Agreement” shall be understood as a reference to the
Sale and Servicing Agreement and each reference to “Company” shall be understood
as a reference to the Servicer.
(a)
Article I of the Sale and Servicing Agreement, shall be amended as follows:
(i)
by adding the following new definitions thereto, in alphabetical order:
“FHA/VA/RHS
Claims Proceeds:
Either (i) the amount of insurance proceeds received from the FHA under the
FHA
insurance in the event of a default with respect to a Mortgage Loan insured
by
the FHA, (ii) the amount of proceeds received from the VA under the VA guaranty
in the
F-2-5
event
of a default with respect to a Mortgage Loan guaranteed by the VA or (iii)
the
amount of proceeds received from RHS under the RHS guaranty in the event of
a
default with respect to a Mortgage Loan guaranteed by RHS.
“_____
200_ Securitization Transaction:
A Securitization Transaction of certain of the Mortgage Loans by the Purchaser
in connection with a securitization thereof to be effected on or about _______,
200_.
“________
200_ Reconstituted Mortgage Loans:
The Mortgage Loans transferred pursuant to the _____ 200_ Securitization
Transaction and sent forth on Exhibit I of the GSMC Assignment Agreement and
this Agreement.
“Prime
Rate:
The prime rate of United States money center commercial banks as published
in
The
Wall Street Journal.”
(ii)
by amending the definition of “Business Day” by inserting the words “or the
master servicer with respect to the ______ 200_ Securitization Transaction”
immediately following the words “where the parties” and immediately preceding
the words “are located....”
(iii)by
deleting the definition of “Monthly Advance” in its entirety and replacing it
with the following: “With respect to each Remittance Date, advances of interest
and principal required to be made on the Business Day immediately preceding
such
Remittance Date to cover any shortfall between (i) Monthly Payments for each
Mortgage Loan and (ii) the amounts actually collected on account of such Monthly
Payments for each such Mortgage Loan during the related Due Period.”
(iv)
by deleting the definition of “Scheduled Principal Balance” in its entirety and
restating it as follows: “For any Mortgage Loan as of any Due Date subsequent to
the cut-off date for the ______ 200_ Securitization Transaction up to and
including, the date on which such Mortgage Loan is finally liquidated or
repurchased from the Trustee, the scheduled principal balance thereof as of
such
cut-off date, as reduced by (i) the principal portion of all Monthly Payments
due on or before such Due Date, to the extent actually paid by the related
Mortgagor or advanced by the Company, or the master servicer or trustee with
respect to the ______ 200_ Securitization Transaction, net of any portion
thereof that represents principal due on a Due Date occurring on or before
the
date on which such proceeds were received, and (ii) the principal portion of
all
Principal Prepayments, including Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds and all payoffs received on or before the last day of the
Principal Prepayment Period preceding the applicable date of determination.”
(b)
Section 4.01 shall be amended by adding the following as a new paragraph at
the
end thereof: “For the avoidance of doubt and without regard to references herein
to any servicing guidelines, all ______ 200_ Reconstituted Mortgage Loans that
are (i) insured by FHA shall be serviced in accordance with FHA guidelines,
(ii)
guaranteed by VA shall be serviced in
F-2-6
accordance
with VA guidelines and (iii) guaranteed by RHS shall be serviced in accordance
with RHS guidelines. The Company shall be required to reimburse the Purchaser
for any losses suffered due to loss of FHA, VA or RHS coverage as a result
of a
failure by the Company to comply with the provisions of this Article IV not
later than 60 days following receipt of notice from the Purchaser of any such
loss.”
(c)
Section 4.04 of the Sale and Servicing Agreement shall be amended by changing
each reference to “Mortgage Loan” or Mortgage Loans” to “______ 200_
Reconstituted Mortgage Loan” or “______ 200_ Reconstituted Mortgage Loans.”
(d)
In addition, clause (8) of Section 4.04 of the Sale and Servicing Agreement
shall be amended by adding the words “without reimbursement” inside the
parentheses immediately following the words “out of its funds” and preceding the
words “which, when added to all amounts.”
(e)
The first sentence of the second paragraph of Section 5.01 of the Sale and
Servicing Agreement shall be amended by adding the words “accrued from the
Remittance Date to (and including) the date on which such remittance is actually
received by the Purchaser” immediately following the words “interest on such
late payment. . . ” and preceding the words “at an annual rate equal to. . . ”
(f)
Section 5.03 of the Sale and Servicing Agreement shall be further amended by
inserting the words “Subject to the provisions of Section 4.02,” at the
beginning of the fourth sentence therefor which begins with the words “[T]he
Company’s obligation to make such Monthly Advances. . . .”
(g)
Section 8.01 of the Sale and Servicing Agreement shall be amended by adding
the
words “(and if the Mortgage Loans are securitized, Xxxxxxx Xxxxx & Co., GS
Mortgage Securities Corp., ________________, in its capacity as trustee for
the
trust issuing securities backed by the Mortgage Loans, and the entity, if any,
acting in the capacity of a master servicer in connection with any
securitization)” immediately following the words “. . . indemnify the Purchaser”
and preceding the words “and hold it harmless . . .”
(h)
Section 8.02 of the Sale and Servicing Agreement shall be amended by deleting
in
the second paragraph thereof the reference to “Xxxxxx Xxx, Freddie Mac, HUD and
VA-approved company in good standing” and replacing it with “FHA, VA, RHS,
Xxxxxx Xxx and Freddie Mac -approved company in good standing.”
(i)
Section 8.04 of the Sale and Servicing Agreement shall be amended by adding
the
following language to the end of the above referenced section: “Notwithstanding
anything in this Agreement to the contrary, the Company may, upon thirty (30)
days’ notice to the Purchaser, with the written consent of the Purchaser, which
consent shall not be unreasonably withheld or delayed by such party and upon
written confirmation that the ratings on any securities backed by the Mortgage
Loans will not be downgraded, qualified or withdrawn, transfer all or part
of
the administration and servicing of the Mortgage Loans to any Person that is
an
institution approved to service loans on behalf of FHA, VA and RHS, has a net
worth of not less than $25,000,000, and satisfies the requirements of Section
12.01 with respect to the qualifications of a successor to
F-2-7
the
Company.”
(j)
Notwithstanding anything to the contrary set forth in Sections 4.16 and 6.01
of
the Sale and Servicing Agreement, it is understood and agreed that the Company
shall determine, in accordance with the servicing standard described in Section
4.01 of the Sale and Servicing Agreement, whether or not to take the actions
described in such Sections, and the consent of the Purchaser shall not be
required therefor.
8.
Continuing
Effect.
Except
as contemplated hereby, the Sale and Servicing Agreement shall remain in full
force and effect in accordance with their respective terms.
9.
Governing
Law.
THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS HEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD
TO THE CONFLICT OF LAWS PROVISIONS THEREOF).
EACH
PARTY HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY AND
ALL
RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON,
OR
ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT, OR ANY OTHER
DOCUMENTS AND INSTRUMENTS EXECUTED IN CONNECTION HEREWITH, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN), OR ACTIONS
OF
SUCH PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES TO ENTER
INTO THIS AGREEMENT.
10.
Notices.
Any
notices or other communications permitted or required hereunder or under the
Sale and Servicing Agreement shall be in writing and shall be deemed
conclusively to have been given if personally delivered at or mailed by
registered mail, postage prepaid, and return receipt requested or transmitted
by
telex, telegraph or telecopier and confirmed by a similar mailed writing, to:
Section
12.12 in the case of the Servicer,
Xxxxx
Fargo Bank, N.A.
1
Home Campus, MAC #X2401-042
Des
Moines, Iowa 50328-0001
Attention:
Xxxx Xxxxx
Tel:
(000) 000-0000
Fax:
(000) 000-0000
With
a copy to:
F-2-8
Xxxxx
Fargo Bank, N.A.
1
Home Campus, MAC #X2401-06T
Des
Moines, Iowa 50328-0001
Attention:
General Counsel
Tel:
(000) 000-0000
Fax:
(000) 000-0000
or
such address as may hereafter be furnished by the Servicer;
|
(b)
|
in
the case of the Assignee,
|
|
[
|
]
|
or
such other address as may hereafter be furnished by the Assignee,
|
(c)
|
in
the case of the Depositor,
|
|
[
|
]
|
|
With
a copy to:
|
||
|
[
|
]
|
|
or
such other address as may hereafter be furnished by the Depositor,
and
|
(d)
|
in
the case of the Master Servicer,
|
|
[
|
]
|
or
such other address as may hereafter be furnished by the Master
Servicer.
11.
Counterparts.
This
Agreement may be executed in counterparts, each of which when so executed shall
be deemed to be an original and all of which when taken together shall
constitute one and the same instrument.
12.
Definitions.
Any
capitalized term used but not defined in this Agreement has the meaning assigned
thereto in the Sale and Servicing Agreement.
F-2-9
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement the day and
year first above written.
|
ASSIGNEE:
|
||
|
[
|
]
|
|
|
By:
|
[
|
],
|
|
not
in its individual capacity but solely as
|
||
|
Trustee
|
||
|
By:________________________________________
|
||
|
Name:
|
||
|
Title:
|
||
|
DEPOSITOR:
|
|
|
[
|
]
|
|
By:________________________________________
|
||
|
Name:
|
||
|
Title:
|
||
Acknowledged
by:
SERVICER:
Xxxxx
Fargo Bank, N.A.
By:
_______________________
Name:
Title:
MASTER
SERVICER:
[ ]
By:
_______________________
Name:
Title:
F-2-10
EXHIBIT
1
Mortgage
Loan Schedule
F-2-11
EXHIBIT
2
Sale
and Servicing Agreement
F-2-12
EXHIBIT
G
FORM
OF SELLER’S OFFICER’S CERTIFICATE
I,
______________________, hereby certify that I am a duly elected [Vice President]
of Xxxxx Fargo Bank, N.A., a national banking association organized under the
laws of the United States (the “Company”) and further as follows:
1.
Attached hereto as Exhibit A is a true, correct and complete copy of the
articles of association of the Company which are in full force and effect on
the
date hereof.
2.
Attached hereto as Exhibit B is a true, correct and complete copy of the by-laws
of the Company which are in effect on the date hereof.
3.
The execution and delivery by the Company of the Amended and Restated Master
Seller’s Warranties and Servicing Agreement, dated as of March 1, 2006 (the
“Sale and Servicing Agreement”) and the Custodial Agreement, dated as of October
1, 2004 (the “Custodial Agreement” and, together with the Sale and Servicing
Agreement, the “Agreements”) are in the ordinary course of business of the
Company.
4.
A true and correct copy of the resolutions of the Mortgage Banking Committee
of
the Board of Directors of the Company authorizing the Company to enter into
the
Agreements is attached hereto as Exhibit C.
5.
Each person who, as an officer or representative of the Company, signed (a)
the
Sale and Servicing Agreement, or (b) any other document delivered prior hereto
or on the date hereof in connection with any transaction described in the
Agreements was, at the respective times of such signing and delivery a duly
elected or appointed, qualified and acting officer or representative of the
Company and the signatures of such persons appearing on such documents are
their
genuine signatures.
No
proceedings for dissolution, merger, consolidation, liquidation, conservatorship
or receivership of the Company or for the sale of all or substantially all
of
its assets is pending, or to my knowledge threatened, and no such proceeding
is
contemplated by the Company.
G-1
IN
WITNESS WHEREOF, I have hereunto signed my name and affixed the seal of the
Company.
Dated:
|
By:
|
|
|
Title:
|
Vice
President
|
I,
__________________ the Secretary of Xxxxx Fargo Bank, N.A., hereby certify
that
_______________________ is a duly elected and acting Vice President of the
Company and that the signature appearing above is his genuine signature.
IN
WITNESS WHEREOF, I have hereunto signed my name.
Dated: By:
Title:
Secretary
G-2
EXHIBIT
H
PROCESS
GUIDELINES
|
1.
|
Contract
|
The
Purchaser must provide the Company with an Assignment & Assumption Agreement
or similar notice with respect to a transfer to Xxxxxx Xxx no less than five
(5)
Business Days prior to the last Business Day of the month of transfer. Such
document will confirm that the Mortgage Loans will be serviced in accordance
with the Xxxxxx Xxx Servicing Guide. Such document must also confirm that
Mortgage Loans were sold to Xxxxxx Xxx under the special servicing option.
|
2.
|
Requirements
for Xxxxxx Xxx sales
|
|
(a)
|
Unless
approved by the Company, Mortgage Loans must be delivered to Xxxxxx
Xxx
under an arrangement pursuant to which the Purchaser provides “Recourse
(type 1)” to Xxxxxx Xxx, as defined under the Xxxxxx Xxx Seller/Servicer
Guide.
|
|
(b)
|
The
Servicing Fee less the Xxxxxx Xxx guaranty fee ( the “ Net Servicing Fee”)
under the Xxxxxx Xxx sale must be equal to or greater than the current
Servicing Fee being paid to the Company by the Purchaser. Should
the Net
Servicing Fee exceed the current Servicing Fee, any excess will be
retained by the Company.
|
|
(c)
|
Preparation
and recording of any Assignments of Mortgage with respect to the
Mortgage
Loans, other than as required by the underlying Master Seller’s Warranties
and Servicing Agreement, will be the responsibility of the Purchaser.
|
|
(d)
|
Information
required to transfer the loans into Xxxxxx Xxx must be received no
less
than five (5) Business Days prior to the last Business Day of the
transaction month.
|
|
(e)
|
Information
to transfer the loans must be in an Excel file format with the following
data fields:
|
(i)
servicer number; (ii) Xxxxx Fargo loan number; (iii) balance sold to Xxxxxx
Xxx;
(iv) Pass-through rate; (v) interest rate; (vi) interest rate net of the
servicing fee rate and guarantee fee rate; (vii) Xxxxxx Xxx loan number; (viii)
contract or pool number; (ix) if the transaction is an “actual/actual” sale -
contract number; and (x) if the transaction is an “actual/actual” sale - date of
first payment to Xxxxxx Xxx.
|
(f)
|
Balances
must be verified with the Company before the Mortgage Loan(s) are
sold to
Xxxxxx Xxx.
|
|
(g)
|
The
servicer number used to deliver the Mortgage Loan(s) to Xxxxxx Xxx
must be
approved by the Company before the Mortgage Loan(s) are sold. The
Company
|
H-1
will
assess a $500 correction penalty for each pool sold under a different
seller/servicer number than what was provided.
|
(h)
|
Final
purchase advices and/or the 2005 forms must be received by the Company
prior to the last Business Day of the transaction month.
|
|
(i)
|
The
Purchaser must provide name and contact information of individual
authorized to discuss the sale terms. Investor name and broker names
need
to be provided to the Company.
|
|
3.
|
Fees
|
A
one-time set-up fee of $5,000 will be charged to the Purchaser for subsequent
sales of Mortgage Loans to Xxxxxx Xxx for which recourse is maintained by the
Purchaser. Should the Purchaser sell loans to Xxxxxxx Xxx (standard, not REMIC)
an additional setup fee may be charged. The Company will establish one investor
number on each of the Company’s related Fidelity clients for those Mortgage
Loans sold by the Purchaser to Xxxxxx Xxx without recourse.
|
4.
|
Process
Guidelines
|
|
(a)
|
Monthly
reporting to the Purchaser on the status of recourse loans will be
limited
to existing Fidelity delinquency and trial balance reports. Reports
will
be as of each month-end and will be provided to the Purchaser no
later
than the twenty (20) days following the related month-end. The Purchaser
will provide contact information for monthly reporting, repurchase
funding
and claim settlement processes.
|
|
(b)
|
For
any Mortgage Loans required to be repurchased by the Purchaser from
Xxxxxx
Xxx due to mortgagor credit defaults (rather than administrative,
legal or
documentation issues), the Company will notify the Purchaser of the
total
amount due to Xxxxxx Xxx for the Mortgage Loan to be repurchased
no later
than the 3rd Business Day prior to the end of the month of repurchase.
The
Purchaser will remit same amount, plus a $100 repurchase processing
fee to
the Company no later than the last Business Day of the repurchase
month. A
late remittance penalty of prime + 2% will be assessed from the date
such
remittance was due through the date such remittance was actually
made.
|
|
(c)
|
Wiring
instructions for repurchases by the Purchaser:
|
Xxxxx
Fargo Bank Iowa N.A.
Des
Moines IA
ABA
000000000
Account
Number: 0000000
Account
Name: Service Holding
ATTN:
Xxxx Xxxxxxxxxxxx, Xxxxxxx/Xxxxxx Xxx
Telephone:
000-000-0000
H-2
|
(d)
|
An
additional investor number will be established for Mortgage Loans
repurchased by the Purchaser. Such investor number will be actual/actual
remittance with month-end cutoff. Reports and remittances will be
due on
the tenth calendar day of each month.
|
H-3
EXHIBIT
I
FORM
OF XXXXXXX XXX XMENDMENT
J-1
EXHIBIT
J
FORM
OF XXXXXX XXX ASSIGNMENT, ASSUMPTION AND RECOGNITION
AGREEMENT
[To
be determined at time of Xxxxxx Xxx transfer.]
K-1
EXHIBIT
K
FORM
OF ASSIGNMENT AND CONVEYANCE AGREEMENT
On
this ___ day of __________, ____, for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, Xxxxx Fargo Bank,
N.A.
(“Company”),
as (i) the Seller under that certain Commitment Letter, dated as of ___________,
_____ (the “Commitment
Letter”),
(ii) the Company under that certain Amended and Restated Master Seller’s
Warranties and Servicing Agreement, dated as of March 1, 2006 (the “Purchase
Agreement”
and, together with the Commitment Letter, the “Agreements”)
does hereby sell, transfer, assign, set over and convey to Xxxxxxx Xxxxx
Mortgage Company (“Purchaser”)
as the Purchaser under the Agreements, and the Purchaser hereby accepts from
the
Company, 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”).
Pursuant to Section 2.03 of the Purchase Agreement, the Company has delivered
the Mortgage Loan Documents to the Custodian. The Mortgage File and the
Servicing File for each Mortgage Loan shall be retained by the Company pursuant
to Section 2.01 of the Purchase Agreement.
In
accordance with Article
II
of the Purchase 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 Purchase Agreement.
[SIGNATURE
PAGE FOLLOWS]
L-1
XXXXX
FARGO BANK, N.A.
By:_________________________________
Name:______________________________
Title:_______________________________
Accepted
and Agreed:
XXXXXXX
XXXXX MORTGAGE COMPANY
By:
Xxxxxxx Xxxxx Real Estate
Funding
Corp., its General Partner
By:__________________________
Name:________________________
Title:_________________________
L-2
EXHIBIT
L
FORM
OF INDEMNIFICATION AGREEMENT
THIS
INDEMNIFICATION AGREEMENT dated [_______], 200___ (the “Agreement”),
between GS Mortgage Securities Corp., a Delaware corporation (the “Depositor”),
Xxxxxxx Xxxxx Mortgage Company, a New York limited partnership (“GSMC”), and
Xxxxx Fargo Bank, N.A., a national banking association ( “Xxxxx
Fargo”).
WITNESSETH:
WHEREAS,
Xxxxx Fargo, GSMC and the Depositor are parties to the Assignment, Assumption
and Recognition Agreement dated as of _____, 20___ (the “Assignment Agreement”);
WHEREAS,
GSMC will sell certain Mortgage Loans to the Depositor pursuant to the
Assignment Agreement and such Mortgage Loans are and will continue to be
serviced by Xxxxx Fargo pursuant to the Servicing Agreement (as defined herein);
and
WHEREAS,
as an inducement to the Depositor to enter into the Assignment Agreement, to
the
Underwriter[s] to enter into the Underwriting Agreement (as defined herein),
and
to the Initial Purchaser[s] to enter into the Certificate Purchase Agreement
(as
defined herein), the parties hereto wish to provide for indemnification and
contribution on the terms and conditions hereinafter set forth;
NOW,
THEREFORE, in consideration of the foregoing and of other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties hereto agree as follows:
ARTICLE
I DEFINITIONS
Section
1.01 Certain
Defined Terms. The following terms shall have the meanings set forth below,
unless the context clearly indicates otherwise:
1933
Act:
The Securities Act of 1933, as amended.
1934
Act:
The Securities Exchange Act of 1934, as amended.
Agreement:
This Indemnification Agreement, as the same may be amended in accordance with
the terms hereof.
Certificate
Purchase Agreement:
The Purchase Agreement, dated as of [______], 200___, [among] the Depositor
and
the Initial Purchaser[s] relating to the Privately Offered Certificates.
Initial
Purchaser:
Xxxxxxx, Xxxxx & Co., a New York limited partnership, and its successors and
assigns.
Offering
Circular:
The offering circular, dated [_______], 200___, relating to the private offering
of the Privately Offered Certificates.
Person:
Any individual, corporation, limited liability company, partnership, joint
venture, association, joint stock company, trust, unincorporated organization
or
government or any agency or political subdivision thereof.
Privately
Offered Certificates:
[__________________], issued pursuant to the Pooling and Servicing Agreement.
Prospectus
Supplement:
The prospectus supplement, dated [______], 200___, relating to the public
offering of the Publicly Offered Certificates.
Publicly
Offered Certificates:
[______________________________], issued pursuant to the Pooling and Servicing
Agreement.
Servicing
Agreement:
The Amended and Restated Master Seller’s Warranties and Servicing Agreement,
dated as of March 1, 2006, between Xxxxx Fargo Bank, N.A. and GSMC.
Underwriters:
Xxxxxxx, Xxxxx & Co., a New York limited partnership[, and [____________], a
[___________] corporation], and their successors and assigns.
Underwriting
Agreement:
The Underwriting Agreement, dated as of [________], 200__, [among] the Depositor
and the Underwriter[s], relating to the Publicly Offered Certificates.
Xxxxx
Fargo Information:
All information in the Prospectus Supplement contained under the headings [“The
Mortgage Loan Pool—Underwriting Guidelines” and “The Servicers—Xxxxx Fargo Bank,
N.A. (including the table immediately following the second paragraph therof)].
Section
1.02 Other
Terms. Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the Pooling and Servicing Agreement.
ARTICLE
II REPRESENTATIONS AND WARRANTIES
Each
party hereto represents and warrants that:
(a)
it has all requisite organizational power and authority to execute, deliver
and
perform its obligations under this Agreement;
(b)
this Agreement has been duly authorized, executed and delivered by such party;
and
(c)
assuming the due authorization, execution and delivery by each other party
hereto, this Agreement constitutes the legal, valid and binding obligation
of
such party.
ARTICLE
III INDEMNIFICATION
Section
3.01 Indemnification by Xxxxx Xxxxx.
(a)
Xxxxx Fargo shall indemnify and hold harmless the Depositor, GSMC, [each of]
the
Underwriter[s], the Initial Purchaser[s], their respective affiliates and their
respective directors, officers, partners and each Person, if any, that controls
the Depositor, GSMC, such Underwriter or the Initial Purchaser, or such
affiliate, within the meaning of either the 1933 Act or the 1934 Act
(collectively, the “GS Indemnified Parties”) against any and all losses, claims,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees
and
related costs, judgments, and any other costs, fees and expenses to which each
such GS Indemnified Party may become subject, under the 1933 Act, the 1934
Act
or otherwise, to the extent that such losses, claims, damages, penalties, fines,
forfeitures, fees, costs, judgments or expenses arise out of or are based upon
(1) any untrue statement or alleged untrue statement of any material fact
contained in the Prospectus Supplement or any amendment or supplement thereto
(provided that such Xxxxx Fargo Information in such amendment or supplement
was
approved by Xxxxx Fargo), or arise out of or are based upon (2) the omission
or
alleged omission to state therein 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; provided, by
way of clarification,
that clause (2) of this paragraph shall be construed solely by reference to
the
Xxxxx Fargo Information and not to any other information communicated in
connection with the Certificates, without regard to whether the Xxxxx Fargo
Information or any portion thereof is presented together with or separately
from
such other information. Xxxxx Fargo shall in each case reimburse each GS
Indemnified Party for any legal or other expenses reasonably incurred by such
GS
Indemnified Party in connection with investigating or defending any such loss,
claim, damage, liability, penalty, fine, forfeiture, or action. Xxxxx Fargo’s
liability under this Section 3.01(a) shall be in addition to any other liability
that Xxxxx Fargo may otherwise have.
(b)
GSMC shall indemnify and hold harmless Xxxxx Fargo, its affiliates and its
respective directors, officers, partners and each Person, if any, that controls
Xxxxx Fargo or such affiliate, within the meaning of either the 1933 Act or
the
1934 Act (collectively, the “Xxxxx Fargo Indemnified Parties”), against any and
all losses, claims, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments, and any other costs, fees
and
expenses to which each such Xxxxx Fargo Indemnified Party may become subject,
under the 1933 Act, the 1934 Act or otherwise, to the extent that such losses,
claims, damages, penalties, fines, forfeitures, fees, costs, judgments or
expenses arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Prospectus Supplement,
registration statement, prospectus, any private placement memorandum or offering
circular, any any computational materials, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission
to
state therein 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, to the extent that such untrue statement or
alleged untrue statement or omission or alleged omission relates to information
other than that set forth in the Xxxxx Fargo Information, and GSMC shall in
each
case reimburse such Xxxxx Fargo Indemnified Party for any legal or other
expenses reasonably incurred by such Xxxxx Fargo Indemnified Party, in
connection with investigating or defending any such loss, claim, damage,
liability, penalty, fine, forfeiture, or action. GSMC’s liability under this
Section 3.01(b) shall be in addition to any other liability that GSMC may
otherwise have.
(c)
If the indemnification provided for in this Section 3.01 shall for any reason
be
unavailable to an indemnified party under this Section 3.01, then the party
which would otherwise be obligated to indemnify with respect thereto, on the
one
hand, and the parties which would otherwise be entitled to be indemnified,
on
the other hand, shall contribute to the losses claims, damages, penalties,
fines, forfeitures, costs, fees, judgments and expenses of the nature
contemplated herein and incurred by the parties hereto in such proportions
that
are appropriate to reflect the relative fault of the Depositor, GSMC, the
Underwriter[s], and the Initial Purchaser[s], on one hand, and Xxxxx Fargo,
on
the other hand, in connection with the applicable misstatements or omissions
or
alleged misstatements or omissions as well as any other relevant equitable
considerations. Notwithstanding the foregoing, no Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) with
respect to the misstatement or omission or alleged misstatement or omission
at
issue shall be entitled to contribution from any Person that was not guilty
of
such fraudulent misrepresentation with respect to the misstatement or omission
or alleged misstatement or omission at issue.
Section
3.02 Notification; Procedural Matters. Promptly after receipt by an indemnified
party under Section 3.01 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 Section 3.01, notify the indemnifying
party (or other contributing party) in writing of the claim or the commencement
of such action; provided, however, that the failure to notify the indemnifying
party (or other contributing party) shall not relieve it from any liability
which it may have under Section 3.01 except to the extent it has been materially
prejudiced by such failure; and provided further, however, that the failure
to
notify the indemnifying party shall not relieve it from any liability which
it
may have to any indemnified party otherwise than under Section 3.01. In case
any
such action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party shall
be
entitled to participate therein and, to the extent that, by written notice
delivered to the indemnified party promptly after receiving the aforesaid notice
from such indemnified party, the indemnifying party elects to assume the defense
thereof, it may participate with counsel reasonably satisfactory to such
indemnified party; provided, however, that if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party or parties shall reasonably have concluded that there may
be
legal defenses available to it or them and/or other indemnified parties that
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 such counsel, the indemnifying party shall not be liable to such
indemnified party under this paragraph for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof, unless (i) the indemnified party shall have employed separate counsel
(plus any local counsel) in connection with the assertion of legal defenses
in
accordance with the proviso to the immediately preceding sentence, (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
shall have authorized the employment of counsel for the indemnified party at
the
expense of the indemnifying party. No party shall be liable for contribution
with respect to any action or claim settled without its consent, which consent
shall not be unreasonably withheld. In no event shall the indemnifying party
be
liable for the fees and expenses of more than one counsel representing the
indemnified parties (in addition to any local counsel) separate from its own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out
of
the same general allegations or circumstances.
ARTICLE
IV GENERAL
Section
4.01 Survival. This Agreement and the obligations of the parties hereunder
shall
survive the purchase and sale of the Publicly Offered Certificates and the
Privately Offered Certificates.
Section
4.02 Successors. This Agreement shall inure to the benefit of and be binding
upon the parties hereto, each indemnified party and their respective successors
and assigns, and no other Person shall have any right or obligation hereunder.
Section
4.03 Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without giving effect to
principles of conflict of laws.
Section
4.04 Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated except by a writing signed by the party against which
enforcement of such change, waiver, discharge or termination is sought. This
Agreement may be signed in any number of counterparts, each of which shall
be
deemed an original, which taken together shall constitute one and the same
instrument.
Section
4.05 Notices. All communications hereunder shall be in writing and shall be
deemed to have been duly given when delivered to (a) in the case of the
Depositor, GSMC, the Underwriter[s], or the Initial Purchaser[s], GS Mortgage
Securities Corp., Xxxxxxx Xxxxx Mortgage Company or Xxxxxxx, Xxxxx & Co. c/o
Goldman, Xxxxx & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Structured Products Group/Xxxxxxxxxxx X. Xxxxxxx, and (b) in the case of Xxxxx
Fargo: Xxxxx Fargo Bank, N.A., 1 Home Campus, Des Moines, IA, 50328-0001,
Attention: General Counsel, MAC X2401-06T.
Section
4.06 Submission
To Jurisdiction; Waivers.
Each
of the parties hereto hereby irrevocably and unconditionally:
(A)
SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT
THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE STATE
OF
NEW YORK, THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN
DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(B)
CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH COURTS AND,
TO THE EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT
OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND
AGREES NOT TO PLEAD OR CLAIM THE SAME;
(C)
AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE EFFECTED
BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY
SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS ADDRESS SET FORTH HEREIN OR
AT
SUCH OTHER ADDRESS OF WHICH THE OTHER PARTIES HERETO SHALL HAVE BEEN NOTIFIED;
AND
(D)
AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS
IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO SUE IN ANY
OTHER JURISDICTION.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties have executed this Agreement by their duly
authorized officers as of the date first above written.
GS
MORTGAGE SECURITIES CORP.
By:____________________________________
Name:
Title:
XXXXXXX
XXXXX MORTGAGE
COMPANY,
A NEW YORK LIMITED
PARTNERSHIP
By:
Xxxxxxx Xxxxx Real Estate Funding Corp.,
its
general partner
By:____________________________________
Name:
Title:
XXXXX
FARGO BANK, N.A.
By:____________________________________
Name:
Title:
EXHIBIT
M
SERVICING
CRITERIA TO BE ADDRESSED
IN
ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by [the Company][Name of Subservicer]
shall address, as a minimum, the criteria identified below as “Applicable
Servicing Criteria”
|
Reg
AB
Reference
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
Inapplicable
Servicing
Criteria
|
|
General
Servicing Considerations
|
|||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance
or other triggers and events of default in accordance
with the transaction agreements.
|
X
|
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third
party’s performance and compliance with such servicing activities.
|
X
|
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer for the mortgage loans are maintained.
|
X
|
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party participating in the servicing function throughout the reporting
period in the amount of coverage required by and otherwise
in accordance with the terms of the transaction agreements.
|
X
|
|
|
Cash
Collection and Administration
|
|||
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial
bank accounts and related bank clearing accounts no more
than two business days following receipt, or such other number
of days specified in the transaction agreements.
|
X
|
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to
an investor are made only by authorized personnel.
|
X
|
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows
or distributions, and any interest or other fees charged for such
advances, are made, reviewed and approved as specified in the
transaction agreements.
|
X
|
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or accounts established as a form of overcollateralization,
are separately maintained (e.g., with respect
to commingling of cash) as set forth in the transaction agreements.
|
X
|
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For
purposes of this criterion, “federally insured depository institution”
with respect to a foreign financial institution means a foreign
financial institution that meets the requirements of Rule 13k-1(b)(1)
of the Securities Exchange Act.
|
X
|
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized access.
|
X
|
|
|
Reg
AB
Reference
|
Servicing
Criteria con’t
|
Applicable
Servicing
Criteria
|
Inapplicable
Servicing
Criteria
|
|
Cash
Collection and Administration con’t
|
|||
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset- backed
securities related bank accounts, including custodial accounts
and related bank clearing accounts. These reconciliations
are (A) mathematically accurate; (B) prepared within
30 calendar days after the bank statement cutoff date, or such
other number of days specified in the transaction agreements;
(C) reviewed and approved by someone other than the
person who prepared the reconciliation; and (D) contain explanations
for reconciling items. These reconciling items are resolved
within 90 calendar days of their original identification, or
such other number of days specified in the transaction agreements.
|
X
|
|
|
Investor
Remittances and Reporting
|
|||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission,
are maintained in accordance with the transaction agreements
and applicable Commission requirements. Specifically,
such reports (A) are prepared in accordance with timeframes
and other terms set forth in the transaction agreements;
(B) provide information calculated in accordance with
the terms specified in the transaction agreements; (C) are filed
with the Commission as required by its rules and regulations;
and (D) agree with investors’ or the trustee’s records
as to the total unpaid principal balance and number of mortgage
loans serviced by the Servicer.
|
X
|
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance
with timeframes, distribution priority and other terms
set forth in the transaction agreements.
|
X
|
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business
days to the Servicer’s investor records, or such other number
of days specified in the transaction agreements.
|
X
|
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with
cancelled checks, or other form of payment, or custodial bank
statements.
|
X
|
|
|
Pool
Asset Administration
|
|||
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required
by the transaction agreements or related mortgage loan documents.
|
X
|
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required
by the transaction agreements
|
X
|
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed and approved in accordance with any conditions or
requirements in the transaction agreements.
|
X
|
|
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance
with the related mortgage loan documents are posted to
the Servicer’s obligor records maintained no more than two business
days after receipt, or such other number of days specified
in the transaction agreements, and allocated to principal,
interest or other items (e.g., escrow) in accordance with
the related mortgage loan documents.
|
X
|
|
|
Reg
AB
Reference
|
Servicing
Criteria con’t
|
Applicable
Servicing
Criteria
|
Inapplicable
Servicing
Criteria
|
|
Pool
Asset Administration con’t
|
|||
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with
the Servicer’s records with respect to an obligor’s unpaid
principal balance.
|
X
|
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's mortgage
loans (e.g., loan modifications or re-agings) are made,
reviewed and approved by authorized personnel in accordance
with the transaction agreements and related pool
asset documents.
|
X
|
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and deeds in lieu of foreclosure, foreclosures and
repossessions, as applicable) are initiated, conducted and
concluded in accordance with the timeframes or other requirements
established by the transaction agreements.
|
X
|
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during
the period a mortgage loan is delinquent in accordance
with the transaction agreements. Such records are
maintained on at least a monthly basis, or such other period
specified in the transaction agreements, and describe the
entity’s activities in monitoring delinquent mortgage loans
including, for example, phone calls, letters and payment
rescheduling plans in cases where delinquency is deemed
temporary (e.g., illness or unemployment).
|
X
|
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans
with variable rates are computed based on the related mortgage
loan documents.
|
X
|
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow
accounts): (A) such funds are analyzed, in accordance
with the obligor’s mortgage loan documents, on at
least an annual basis, or such other period specified in the
transaction agreements; (B) interest on such funds is paid,
or credited, to obligors in accordance with applicable mortgage
loan documents and state laws; and (C) such funds
are returned to the obligor within 30 calendar days of full
repayment of the related mortgage loans, or such other number
of days specified in the transaction agreements.
|
X
|
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance
payments) are made on or before the related penalty
or expiration dates, as indicated on the appropriate bills
or notices for such payments, provided that such support
has been received by the servicer at least 30 calendar
days prior to these dates, or such other number of days
specified in the transaction agreements.
|
X
|
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to
be made on behalf of an obligor are paid from the Servicer’s
funds and not charged to the obligor, unless the late
payment was due to the obligor’s error or omission.
|
X
|
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within
two business days to the obligor’s records maintained
by the servicer, or such other number of days specified
in the transaction agreements.
|
X
|
|
|
Reg
AB
Reference
|
Servicing
Criteria con’t
|
Applicable
Servicing
Criteria
|
Inapplicable
Servicing
Criteria
|
|
Pool
Asset Administration con’t
|
|||
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized
and recorded in accordance with the transaction agreements.
|
X
|
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item
1114(a)(1) through (3) or Item 1115 of Regulation AB,
is maintained as set forth in the transaction agreements.
|
X
|
|
EXHIBIT
N
SARBANES
CERTIFICATE
Re: The
[ ] agreement dated as of [
], 200[
]
(the “Agreement”), among [IDENTIFY
PARTIES]
I,
________________________________, the _______________________ of [Name of
Servicer], certify to [the Owner], [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 Servicer provided
in
accordance with Item 1123 of Regulation AB (the “Compliance Statement”), the
report on assessment of the Servicer’s compliance with the servicing criteria
set forth in Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided
in accordance with Rules 13a-18 and 15d-18 under Securities Exchange Act of
1934, as amended (the “Exchange Act”) and Item 1122 of Regulation AB (the
“Servicing Assessment”), the registered public accounting firm’s attestation
report provided in accordance with Rules 13a-18 and 15d-18 under the Exchange
Act and Section 1122(b) of Regulation AB (the “Attestation Report”), and all
servicing reports, officer’s certificates and other information relating to the
servicing of the Mortgage Loans by the Servicer during 200[ ] that were
delivered by the Servicer to the [Depositor] [Master Servicer] [Securities
Administrator] [Trustee] pursuant to the Agreement (collectively, the “Servicer
Servicing Information”);
(2)
Based on my knowledge, the Servicer 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 Servicer Servicing
Information;
(3)
Based on my knowledge, all of the Servicer Servicing Information required to
be
provided by the Servicer 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 Servicer under
the Agreement, and based on my knowledge and the compliance review conducted
in
preparing the Compliance Statement and except as disclosed in the Compliance
Statement, the Servicing Assessment or the Attestation Report, the Servicer
has
fulfilled its obligations under the Agreement; and
(5)
The Compliance Statement, the Servicing Assessment and the Attestation Report
required to be provided by the Servicer pursuant to the Agreement have been
provided to the [Depositor] [Master Servicer]. Any material instances of
noncompliance described in such reports have been disclosed to the [Depositor]
[Master Servicer]. Any material instance of noncompliance with the Servicing
Criteria has been disclosed in such reports.
Date:
By:
________________________
Name:______________________
Title:
______________________
