Exhibit 10.3
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| EXECUTION COPY |
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ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
Assignment, Assumption and Recognition Agreement (the "Agreement"), dated
April 30, 2007, is among Bank of America, National Association, a national
banking association ("Assignor"), Banc of America Funding Corporation, a
Delaware corporation ("BAFC"), U.S. Bank National Association, a national
banking association, not in its individual capacity, but solely as trustee of
the Banc of America Funding 2007-3 Trust ("Assignee"), ▇▇▇▇▇ Fargo Bank, N.A., a
national banking association ("▇▇▇▇▇ Fargo Bank"), as a master servicer of the
Banc of America Funding 2007-3 Trust, Countrywide Home Loans, Inc. (the
"Company"), and Countrywide Home Loans Servicing LP ("Countrywide").
WHEREAS, pursuant to (a)(i) that certain Master Mortgage Loan Purchase and
Servicing Agreement, dated as of April 1, 2003, by and between Assignor (as
successor in interest to Banc of America Mortgage Capital Corporation
("BAMCC")), as purchaser, and the Company, as seller, (ii) that certain
Amendment No. 1, dated as of July 1, 2003, by and among BAMCC, the Company and
the Assignor, (iii) that certain Amendment No. 2, dated as of September 1, 2004,
by and among BAMCC, the Company and the Assignor, (iv) that certain Amendment
Reg AB to the Master Mortgage Loan Purchase and Servicing Agreement (the
"Amendment Reg AB"), dated as of January 1, 2006, by and between the Company and
the Assignor, (v) that certain Purchase Confirmation, dated June 30, 2004,
between the Company and the Assignor, (vi) that certain Purchase Confirmation,
dated July 30, 2004, between the Company and the Assignor and (vii) that certain
Purchase Confirmation dated as of August 30, 2004, between the Company and the
Assignor (collectively, the "Countrywide Agreements"), the servicing provisions
of which are attached in Appendix I hereto, and (b)(i) that certain Assignment,
Assumption and Recognition Agreement, dated March 20, 2007, among North Fork
Bank (as successor in interest to GreenPoint Mortgage Funding, Inc.
("GreenPoint")), the Assignor and ABN AMRO Mortgage Group, Inc. ("ABN AMRO"),
and (ii) that certain Assignment, Assumption and Recognition Agreement, dated
March 20, 2007, among North Fork Bank (as successor in interest to GreenPoint),
the Assignor and the Company (collectively, the "North Fork Agreements" and,
together with the Countrywide Agreements, the "Underlying Agreements"), each of
which is attached in Appendix II hereto, the Assignor purchased the Mortgage
Loans (as defined herein) from the Company or North Fork Bank, as applicable;
WHEREAS, on the date hereof, the Assignor is transferring all of its right,
title and interest in and to the Mortgage Loans to BAFC;
WHEREAS, on the date hereof, BAFC is transferring all of its right, title
and interest in and to the Mortgage Loans to the Assignee;
WHEREAS, on the date hereof, the Company is transferring all of its right,
title and interest in and to the servicing of the Mortgage Loans to Countrywide;
and
WHEREAS, on the date hereof, ▇▇▇▇▇ Fargo Bank, as a master servicer (in
such capacity, the "Master Servicer"), is entering into a Pooling and Servicing
Agreement, dated the date hereof (the "Pooling Agreement), among BAFC, the
Master Servicer, Washington Mutual Mortgage Securities Corp., as a master
servicer, ▇▇▇▇▇ Fargo Bank, as securities administrator (the "Securities
Administrator"), and the Assignee, pursuant to which the Master Servicer will
supervise, monitor and oversee the servicing of the Mortgage Loans.
For and in consideration of the sum of one dollar ($1.00) and other
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, and of the mutual covenants herein contained, the parties hereto
hereby agree as follows:
1. The Assignor hereby grants, transfers and assigns to BAFC, and BAFC
hereby grants, transfers and assigns to Assignee, all of the right, title and
interest of the Assignor in, to and under the Underlying Agreements, and the
mortgage loans delivered under such agreements to the Assignor and listed on
Exhibit A attached hereto (the "Mortgage Loans").
The Assignor specifically reserves and does not assign to BAFC or the
Assignee any right, title and interest in, to or under any mortgage loan subject
to the Underlying Agreements other than the Mortgage Loans.
2. The Company hereby grants, transfers and assigns to Countrywide all of
the right, title and interest of the Company in, to and under the servicing
rights under the Underlying Agreements as they relate to the Mortgage Loans.
Countrywide hereby assumes all of the Company's obligations and duties under the
Underlying Agreements as they relate to the Mortgage Loans from and after the
date hereof. The Company specifically reserves and does not assign to
Countrywide any right, title and interest in, to or under (i) the Underlying
Agreements as they relate to any mortgage loans other than the Mortgage Loans or
(ii) any mortgage loans subject to the Underlying Agreements other than the
Mortgage Loans. Notwithstanding the foregoing, it is understood that the Company
is not released from liability to the Assignor, or its permitted successors and
assigns, for any breaches of any representations, warranties or covenants made
by the Company in the Countrywide Agreements prior to the date hereof.
3. The Assignor warrants and represents to, and covenants with, BAFC and
the Assignee that:
a. The Assignor is the lawful owner of the Mortgage Loans with the full
right to transfer the Mortgage Loans free from any and all claims and
encumbrances whatsoever;
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b. The Assignor has not received notice of, and has no knowledge of, any
offsets, counterclaims or other defenses available to Countrywide with
respect to the Underlying Agreements or the Mortgage Loans;
c. The Assignor has not waived or agreed to any waiver under, or agreed
to any amendment or other modification of, the Underlying Agreements
or the Mortgage Loans, including without limitation the transfer of
the servicing obligations under the Underlying Agreements. The
Assignor has no knowledge of, and has not received notice of, any
waivers under or amendments or other modifications of, or assignments
of rights or obligations under, the Underlying Agreements or the
Mortgage Loans; and
d. Neither the Assignor nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of the Mortgage
Loans, any interest in the Mortgage Loans or any other similar
security to, or solicited any offer to buy or accept a transfer,
pledge or other disposition of the Mortgage Loans, any interest in the
Mortgage Loans or any other similar security from, or otherwise
approached or negotiated with respect to the Mortgage Loans, any
interest in the 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 of 1933, as amended (the "Securities Act"), or which
would render the disposition of the Mortgage Loans a violation of
Section 5 of the Securities Act or require registration pursuant
thereto.
4. From and after the date hereof, Countrywide shall (i) note the transfer
of the Mortgage Loans to the Assignee in its books and records, (ii) recognize
the Assignee as the owner of the Mortgage Loans and (iii) notwithstanding
anything to the contrary contained in Section 8.07 of the Countrywide
Agreements, shall service the Mortgage Loans pursuant to the Countrywide
Agreements, as modified by Section 10 hereof, for the benefit of the Assignee.
5. Countrywide hereby acknowledges that a REMIC election will be made with
respect to the Mortgage Loans and that ▇▇▇▇▇ Fargo Bank, N.A. has been appointed
as the Master Servicer of the Mortgage Loans pursuant to the Pooling Agreement,
and therefore has the right to enforce all obligations of Countrywide as they
relate to the Mortgage Loans, under the Countrywide Agreements, including,
without limitation, the right to exercise any and all rights of the Assignor
(but not the obligations) under the Countrywide Agreements to monitor and
enforce the obligations of Countrywide thereunder, the right to terminate
Countrywide under the Countrywide Agreements upon the occurrence of an event of
default thereunder, the right to receive all remittances required to be made by
Countrywide under the Countrywide Agreements, the right to receive all monthly
reports and other data required to be delivered by Countrywide under the
Countrywide Agreements, the right to examine the books and records of
Countrywide or the Company (as such books and records relate to the prior period
of servicing of the Mortgage Loans by the Company), and the right to exercise
certain rights of consent and approval relating to actions taken by Countrywide.
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Notwithstanding the foregoing, it is understood that Countrywide shall not be
obligated to defend and indemnify and hold harmless the Master Servicer, the
Assignor, the Assignee, the Trust, and BAFC against any losses, damages,
penalties, fines, forfeitures, judgments and any related costs including,
without limitation, reasonable and necessary legal fees, resulting from (i)
actions or inactions of Countrywide which were taken or omitted upon the
instruction or direction of the Master Servicer or (ii) the failure of the
Assignee or the Master Servicer acting in its capacity as agent for the Trust to
perform the obligations of the "Purchaser" under the Purchase and Servicing
Agreement. Wire remittances shall be sent to: ▇▇▇▇▇ FARGO BANK, N.A., ABA#
▇▇▇▇▇▇▇▇▇, FOR CREDIT TO: SAS CLEARING, ACCT: ▇▇▇▇▇▇▇▇▇▇, FFC TO: BAFC 2007-3 #
53146700.
6. Countrywide hereby represents and warrants to each of the other parties
hereto (i) that the representations and warranties in Section 3.01 of the
Countrywide Agreements are true and correct in all material respects as of the
date hereof with the same force and effect as though expressly made by
Countrywide at and/or as of the date hereof, (ii) the Mortgage Loans have been
serviced in accordance with the terms of the Countrywide Agreements or the
Underlying Agreements, as applicable, (iii) that the Company has taken no action
nor omitted to take any required action the omission of which would have the
effect of impairing any mortgage insurance or guarantee on the Mortgage Loans
and (iv) that any information provided by the Company on or before the date
hereof to any of the parties hereto is true and correct.
7. Countrywide hereby agrees to cooperate with BAFC, the Master Servicer
and the Securities Administrator to enable BAFC, the Master Servicer and the
Securities Administrator to fully comply with all Securities and Exchange
Commission ("SEC") disclosure and reporting requirements in effect from time to
time with respect to the trust created by the Pooling Agreement (which shall be
named "Banc of America Funding 2007-3 Trust") (the "Trust") and any securities
representing ownership interests in or backed by assets of the Trust, including
without limitation, the SEC's recently published rules regarding asset-backed
securities (Release Nos. 33-8518; 34-50905; File No. S7-21-0433-8419) as set
forth in the Amendment Reg AB.
8. Countrywide hereby agrees that, in connection with each Mortgage Loan of
which the related Mortgage has been recorded in the name of MERS or its
designee, it shall take all actions as are necessary to cause the Assignee, as
trustee of the Trust pursuant to the Pooling Agreement, to be shown as the owner
of such Mortgage Loan on the records of MERS for purposes of the system of
recording transfers of beneficial ownership of mortgages maintained by MERS.
9. In accordance with Sections 2.05 and 7.01 of the Countrywide Agreements,
the Assignor hereby instructs Countrywide, and Countrywide hereby agrees, to
release from its custody and deliver the contents of the Collateral File (as
defined in the Countrywide Agreements) for each Mortgage Loan, if any, to U.S.
Bank National Association, in its capacity as custodian under the Pooling
Agreement on or before the closing date of the related Pass-Through Transfer (as
defined in the Countrywide Agreements).
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10. Countrywide, BAFC and Assignee hereby agree to the following
modifications to the Countrywide Agreements solely with respect to the Mortgage
Loans:
a. Article I. The definition of "Qualified Substitute Mortgage Loan" is
hereby replaced in its entirety with the following:
"A mortgage loan that must, on the date of such substitution, (i) have
an unpaid principal balance, after deduction of all scheduled payments
due in the month of substitution (or if more than one (1) mortgage
loan is being substituted, an aggregate principal balance), not in
excess of the unpaid principal balance of the repurchased Mortgage
Loan (the amount of such shortfall will be deposited in the Custodial
Account by Countrywide in the month of substitution); (ii) have a
Mortgage Interest Rate not less than, and not more than two percent
(2%) greater than, the Mortgage Interest Rate of the repurchased
Mortgage Loan; (iii) have a remaining term to maturity not greater
than and not more than one year less than that of the repurchased
Mortgage Loan; (iv) comply with each representation and warranty set
forth in Sections 3.01 and 3.02; (v) be of the same type as the
repurchased Mortgage Loan; (vi) have a Gross Margin not less than that
of the repurchased Mortgage Loan; (vii) have the same Index as the
repurchased Mortgage Loan; (viii) have a FICO score not less than that
of the repurchased Mortgage Loan, (ix) have an LTV not greater than
that of the repurchased Mortgage Loan; (x) have a credit grade not
lower in quality than that of the repurchased Mortgage Loan and (xi)
have the same lien status as the repurchased Mortgage Loan."
b. Section 5.01. The following is added as the second paragraph of
Section 5.01:
"With respect to any remittance received by the Purchaser or any
master servicer after the Business Day on which such payment was due,
Countrywide shall pay to the Purchaser or any master servicer interest
on any such late payment at an annual rate equal to the rate of
interest as is publicly announced from time to time at its principal
office by JPMorgan Chase Bank, New York, New York, as its prime
lending rate, adjusted as of the date of each change, plus one
percentage point, but in no event greater than the maximum amount
permitted by applicable law. Such interest shall be paid by
Countrywide to the Purchaser or any master servicer on the date such
late payment is made and shall cover the period commencing with the
day such remittance was due and ending with the Business Day on which
such payment is made, both inclusive. Such interest shall be remitted
along with such late payment. The payment by Countrywide of any such
interest shall not be deemed an extension of time for payment or a
waiver of any Event of Default by Countrywide."
c. Section 5.02. The first paragraph of Section 5.02 is hereby modified
to read as follows:
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"Not later than the fifth (5th) Business Day of each month,
Countrywide shall furnish to the Purchaser a delinquency report in the
form set forth in Exhibit H-1, a monthly remittance advice in the form
set forth in Exhibit H-2, and a realized loss report in the form set
forth in Exhibit H-3, each in a mutually agreeable electronic format,
as to the remittance on such Remittance Date and as to the period
ending on the last day of the month preceding such Remittance Date;
provided, however, Countrywide shall not be required to report any
information relating to any prepayment penalties or charges to the
extent such penalties or charges are retained by Countrywide."
The exhibits referenced in this Section 10(c) are attached to this
Agreement on Exhibit B hereto; provided, however, Countrywide shall
not be required to report any information relating to any prepayment
penalties or charges to the extent such penalties or charges are
retained by Countrywide.
d. Section 5.07. Section 5.07 is hereby modified by replacing subsection
(ii) with the following:
"result in the imposition of a tax upon the REMIC (including but not
limited to the tax on "prohibited transactions" as defined in Section
860F(a)(2) of the Code and the tax on "contributions" to a REMIC set
forth in Section 860G(d) of the Code) unless Countrywide 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."
e. Section 7.01. Section 7.01(a)(i) is hereby modified by deleting "three
(3) Business Days" and replacing it with "two (2) Business Days (but
in no event later than the 20th day of the month)".
11. Notwithstanding any provision in this Agreement to the contrary, it is
understood that Countrywide is not released from liability to the Assignor for
any breaches of any representations, warranties or covenants made by Countrywide
in the Countrywide Agreements prior to the date hereof regardless of when such
breaches are discovered or made known.
12. The Assignee's address for purposes of all notices and correspondence
related to the Mortgage Loans and the Underlying Agreements is:
U.S. Bank National Association
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Structured Finance Trust Services, BAFC 2007-3
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The Assignor's address for purposes of all notices and correspondence
related to the Mortgage Loans and the Underlying Agreements is:
Bank of America, National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Managing Director
BAFC's address for purposes of all notices and correspondence related to
the Mortgage Loans is:
Banc of America Funding Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel and Chief Financial Officer
13. It is expressly understood and agreed by the parties hereto that (i)
this Agreement is executed and delivered by U.S. Bank National Association not
individually or personally but solely as trustee on behalf of the Trust, in the
exercise of the powers and authority conferred and vested in it under the terms
of the Pooling Agreement, and (ii) under no circumstances shall U.S. Bank
National Association be personally liable for the payment of any indebtedness or
expenses of the Trust (including, without limitation, any fees, expenses or
indemnities payable under the Underlying Agreements), or be liable for the
breach or failure of any obligation, representation, warranty or covenant of the
Trust under this Agreement or any other related documents, as to all of which
recourse shall be had solely to the assets of the Trust in accordance with the
terms of the Pooling Agreement.
[Signatures Follow]
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IN WITNESS WHEREOF, the parties have caused this Assignment, Assumption and
Recognition Agreement to be executed by their duly authorized officers as of the
date first above written.
Bank of America, National Association,
as Assignor
By: /s/ ▇▇▇▇▇ ▇. Good
-----------------------------------
Name: ▇▇▇▇▇ ▇. Good
Title: Principal
U.S. Bank National Association,
as Assignee
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Banc of America Funding Corporation
By: /s/ ▇▇▇▇▇ W/ Good
-----------------------------------
Name: ▇▇▇▇▇ ▇. Good
Title: Principal
Countrywide Home Loans, Inc.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: 1st Vice President
Countrywide Home Loans Servicing LP,
as servicer
By: Countrywide GP, Inc., its general
partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: 1st Vice President
[ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT FOR BAFC 2007-3]
Acknowledged and Agreed
as of the date first above written:
▇▇▇▇▇ Fargo Bank, N.A., as master servicer
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Colli
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
[ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT FOR BAFC 2007-3]
EXHIBIT A
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Schedule of Mortgage Loans
[Included as Exhibits D-2 and D-3 to Exhibit 4.1 to the Current
Report on Form 8-K pursuant to which this Assignment,
Assumption and Recognition Agreement is filed.]
A-1
EXHIBIT B
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Exhibit H-1 -- Reporting Data for Defaulted Loans
Data must be submitted to ▇▇▇▇▇ Fargo Bank in an Excel spreadsheet format with
fixed field names and data type. The Excel spreadsheet should be used as a
template consistently every month when submitting data.
Table: Delinquency
Name Type Size
----------------------------------------------------------------
Servicer Loan # Number 8
(Double)
Investor Loan # Number 8
(Double)
Borrower Name Text 20
Address Text 30
State Text 2
Due Date Date/Time 8
Action Code Text 2
FC Received Date/Time 8
File Referred to Atty Date/Time 8
NOD Date/Time 8
Complaint Filed Date/Time 8
Sale Published Date/Time 8
Target Sale Date Date/Time 8
Actual Sale Date Date/Time 8
Appraisal Date Date/Time 8
Appraisal Property Value Currency 8
BPO Date Date/Time 8
BPO Property Value Currency 8
Loss Mit Approval Date Date/Time 8
Loss Mit Type Text 5
Loss Mit Estimated Completion Date/Time 8
Date
Loss Mit Actual Completion Date Date/Time 8
Loss Mit Broken Plan Date Date/Time 8
BK Chapter Text 6
BK Filed Date Date/Time 8
BK Discharge Dates Date/Time 8
BK Dismissal Dates Date/Time 8
Post Petition Due Date/Time 8
Motion for Relief Date/Time 8
Lift of Stay Date/Time 8
RFD Text 10
Occupant Code Text 10
Eviction Start Date Date/Time 8
Eviction Completed Date Date/Time 8
List Price Currency 8
List Date Date/Time 8
Accepted Offer Price Currency 8
Accepted Offer Date Date/Time 8
Estimated REO Closing Date Date/Time 8
Actual REO Sale Date Date/Time 8
o Items in bold are MANDATORY FIELDS. We must receive information in those
fields every month in order for your file to be accepted.
The Action Code Field should show the applicable numeric code to indicate that a
special action is being taken. The Action Codes are the following:
12-Relief Provisions
15-Bankruptcy/Litigation
20-Referred for Deed-in-Lieu
30-Referred fore Foreclosure
▇▇-▇▇▇▇▇▇
▇▇-▇▇▇▇▇▇▇▇▇▇
▇▇-▇▇▇-▇▇▇▇ for Sale
71-Third Party Sale/Condemnation
72-REO-Pending Conveyance-Pool Insurance claim filed
▇▇▇▇▇ Fargo Bank will accept alternative Action Codes to those above, provided
that the Codes are consistent with industry standards. If Action Codes other
than those above are used, the Servicer must supply ▇▇▇▇▇ Fargo Bank with a
description of each of the Action Codes prior to sending the file.
Description of Action Codes:
Action Code 12 - To report a Mortgage Loan for which the Borrower has been
granted relief for curing a delinquency. The Action Date is the date the relief
is expected to end. For military indulgence, it will be three months after the
Borrower's discharge from military service.
Action Code 15 - To report the Borrower's filing for bankruptcy or instituting
some other type of litigation that will prevent or delay liquidation of the
Mortgage Loan. The Action Date will be either the date that any repayment plan
(or forbearance) instituted by the bankruptcy court will expire or an additional
date by which the litigation should be resolved.
Action Code 20 - To report that the Borrower has agreed to a deed-in-lieu or an
assignment of the property. The Action Date is the date the Servicer decided to
pursue a deed-in-lieu or the assignment.
Action Code 30 - To report that the decision has been made to foreclose the
Mortgage Loan. The Action Date is the date the Servicer referred the case to the
foreclosure attorney.
Action Code 60 - To report that a Mortgage Loan has been paid in full either at,
or prior to, maturity. The Action Date is the date the pay-off funds were
remitted to the Master Servicer.
Action Code 65 - To report that the Servicer is repurchasing the Mortgage Loan.
The Action Date is the date the repurchase proceeds were remitted to the Master
Servicer.
Action Code 70 - To report that a Mortgage Loan has been foreclosed or a
deed-in-lieu of foreclosure has been accepted, and the Servicer, on behalf of
the owner of the Mortgage Loan, has acquired the property and may dispose of it.
The Action Date is the date of the foreclosure sale or, for deeds-in-lieu, the
date the deed is recorded on behalf of the owner of the Mortgage Loan.
Action Code 71 - To report that a Mortgage Loan has been foreclosed and a third
party acquired the property, or a total condemnation of the property has
occurred. The Action Date is the date of the foreclosure sale or the date the
condemnation award was received.
Action Code 72 - To report that a Mortgage Loan has been foreclosed, or a
deed-in-lieu has been accepted, and the property may be conveyed to the mortgage
insurer and the pool insurance claim has been filed. The Action Date is the date
of the foreclosure sale, or, for deeds-in-lieu, the date of the deed for
conventional mortgages.
The Loss Mit Type field should show the approved Loss Mitigation arrangement.
The following are acceptable:
ASUM-Approved Assumption
BAP-Borrower Assistance Program
CO-Charge Off
DIL-Deed-in-Lieu
FFA-Formal Forbearance Agreement
MOD-Loan Modification
PRE-Pre-Sale
SS-Short Sale
MISC-Anything else approved by the PMI or Pool Insurer
▇▇▇▇▇ Fargo Bank will accept alternative Loss Mitigation Types to those above,
provided that they are consistent with industry standards. If Loss Mitigation
Types other than those above are used, the Servicer must supply ▇▇▇▇▇ Fargo Bank
with a description of each of the Loss Mitigation Types prior to sending the
file.
The Occupant Code field should show the current status of the property. The
acceptable codes are:
Mortgagor
Tenant
Unknown
Vacant
Exhibit H-2: Standard File Layout - Scheduled/Scheduled
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Column Name Description Decimal Format Comment Max Size
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SER_INVESTOR_NBR A value assigned by the Servicer to define a group of Text up to 10 digits 20
loans.
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LOAN_NBR A unique identifier assigned to each loan by the Text up to 10 digits 10
investor.
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SERVICER_LOAN_NBR A unique number assigned to a loan by the Servicer. Text up to 10 digits 10
This may be different than the LOAN_NBR.
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BORROWER_NAME The borrower name as received in the file. It is not Maximum length of 30 (Last, First) 30
separated by first and last name.
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SCHED_PAY_AMT Scheduled monthly principal and scheduled interest 2 No commas(,) or dollar signs ($) 11
payment that a borrower is expected to pay, P&I
constant.
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NOTE_INT_RATE The loan interest rate as reported by the Servicer. 4 Max length of 6 6
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NET_INT_RATE The loan gross interest rate less the service fee rate 4 Max length of 6 6
as reported by the Servicer.
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SERV_FEE_RATE The servicer's fee rate for a loan as reported by the 4 Max length of 6 6
Servicer.
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SERV_FEE_AMT The servicer's fee amount for a loan as reported by the 2 No commas(,) or dollar signs ($) 11
Servicer.
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NEW_PAY_AMT The new loan payment amount as reported by the Servicer. 2 No commas(,) or dollar signs ($) 11
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NEW_LOAN_RATE The new loan rate as reported by the Servicer. 4 Max length of 6 6
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ARM_INDEX_RATE The index the Servicer is using to calculate a 4 Max length of 6 6
forecasted rate.
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ACTL_BEG_PRIN_BAL The borrower's actual principal balance at the 2 No commas(,) or dollar signs ($) 11
beginning of the processing cycle.
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ACTL_END_PRIN_BAL The borrower's actual principal balance at the end of 2 No commas(,) or dollar signs ($) 11
the processing cycle.
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BORR_NEXT_PAY_DUE_DATE The date at the end of processing cycle that the MM/DD/YYYY 10
borrower's next payment is due to the Servicer, as
reported by Servicer.
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SERV_CURT_AMT_1 The first curtailment amount to be applied. 2 No commas(,) or dollar signs ($) 11
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SERV_CURT_DATE_1 The curtailment date associated with the first MM/DD/YYYY 10
curtailment amount.
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CURT_ADJ_ AMT_1 The curtailment interest on the first curtailment 2 No commas(,) or dollar signs ($) 11
amount, if applicable.
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SERV_CURT_AMT_2 The second curtailment amount to be applied. 2 No commas(,) or dollar signs ($) 11
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SERV_CURT_DATE_2 The curtailment date associated with the second MM/DD/YYYY 10
curtailment amount.
------------------------------------------------------------------------------------------------------------------------------------
CURT_ADJ_ AMT_2 The curtailment interest on the second curtailment 2 No commas(,) or dollar signs ($) 11
amount, if applicable.
------------------------------------------------------------------------------------------------------------------------------------
SERV_CURT_AMT_3 The third curtailment amount to be applied. 2 No commas(,) or dollar signs ($) 11
------------------------------------------------------------------------------------------------------------------------------------
SERV_CURT_DATE_3 The curtailment date associated with the third MM/DD/YYYY 10
curtailment amount.
------------------------------------------------------------------------------------------------------------------------------------
CURT_ADJ_AMT_3 The curtailment interest on the third curtailment 2 No commas(,) or dollar signs ($) 11
amount, if applicable.
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
PIF_AMT The loan "paid in full" amount as reported by the 2 No commas(,) or dollar signs ($) 11
Servicer.
------------------------------------------------------------------------------------------------------------------------------------
PIF_DATE The paid in full date as reported by the Servicer. MM/DD/YYYY 10
------------------------------------------------------------------------------------------------------------------------------------
Action Code Key: 15=Bankruptcy, 2
▇▇▇▇▇▇▇▇▇▇▇▇▇▇, , ▇▇▇▇▇▇,
ACTION_CODE The standard FNMA numeric code used to 63=Substitution, 65=Repurchase,
indicate the default/delinquent status of 70=REO
a particular loan.
------------------------------------------------------------------------------------------------------------------------------------
INT_ADJ_AMT The amount of the interest adjustment as reported by 2 No commas(,) or dollar signs ($) 11
the Servicer.
------------------------------------------------------------------------------------------------------------------------------------
SOLDIER_SAILOR_ADJ_AMT The Soldier and Sailor Adjustment amount, if applicable. 2 No commas(,) or dollar signs ($) 11
------------------------------------------------------------------------------------------------------------------------------------
NON_ADV_LOAN_AMT The Non Recoverable Loan Amount, if applicable. 2 No commas(,) or dollar signs ($) 11
------------------------------------------------------------------------------------------------------------------------------------
LOAN_LOSS_AMT The amount the Servicer is passing as a loss, if 2 No commas(,) or dollar signs ($) 11
applicable.
------------------------------------------------------------------------------------------------------------------------------------
SCHED_BEG_PRIN_BAL The scheduled outstanding principal amount due at the 2 No commas(,) or dollar signs ($) 11
beginning of the cycle date to be passed through to
investors.
------------------------------------------------------------------------------------------------------------------------------------
SCHED_END_PRIN_BAL The scheduled principal balance due to investors at the 2 No commas(,) or dollar signs ($) 11
end of a processing cycle.
------------------------------------------------------------------------------------------------------------------------------------
SCHED_PRIN_AMT The scheduled principal amount as reported by the 2 No commas(,) or dollar signs ($) 11
Servicer for the current cycle -- only
applicable for Scheduled/Scheduled Loans.
------------------------------------------------------------------------------------------------------------------------------------
SCHED_NET_INT The scheduled gross interest amount less the service 2 No commas(,) or dollar signs ($) 11
fee amount for the current cycle as
reported by the Servicer -- only
applicable for Scheduled/Scheduled Loans.
------------------------------------------------------------------------------------------------------------------------------------
ACTL_PRIN_AMT The actual principal amount collected by the Servicer 2 No commas(,) or dollar signs ($) 11
for the current reporting cycle -- only applicable for
Actual/Actual Loans.
------------------------------------------------------------------------------------------------------------------------------------
ACTL_NET_INT The actual gross interest amount less the service fee 2 No commas(,) or dollar signs ($) 11
amount for the current reporting cycle as reported by
the Servicer -- only applicable for Actual/Actual Loans.
------------------------------------------------------------------------------------------------------------------------------------
PREPAY_PENALTY_ AMT The penalty amount received when a borrower prepays on 2 No commas(,) or dollar signs ($) 11
his loan as reported by the Servicer.
------------------------------------------------------------------------------------------------------------------------------------
PREPAY_PENALTY_ WAIVED The prepayment penalty amount for the loan waived by 2 No commas(,) or dollar signs ($) 11
the servicer.
------------------------------------------------------------------------------------------------------------------------------------
MOD_DATE The Effective Payment Date of the Modification for the MM/DD/YYYY 10
loan.
------------------------------------------------------------------------------------------------------------------------------------
MOD_TYPE The Modification Type. Varchar - value can be alpha or 30
numeric
------------------------------------------------------------------------------------------------------------------------------------
DELINQ_P&I_ADVANCE_AMT The current outstanding principal and interest advances 2 No commas(,) or dollar signs ($) 11
made by Servicer.
------------------------------------------------------------------------------------------------------------------------------------
Flag to indicate if the repurchase of a loan is due to Y=Breach
BREACH_FLAG a breach of Representations and Warranties N=NO Breach 1
Let blank if N/A
------------------------------------------------------------------------------------------------------------------------------------
Exhibit H-3: Realized Loss Calculation Information--▇▇▇▇▇ Fargo Bank, N.A., Form
332
Calculation of Realized Loss
----------------------------
Purpose
-------
To provide the Servicer with a form for the calculation of any Realized Loss (or
gain) as a result of a Mortgage Loan having been foreclosed and Liquidated.
Distribution
------------
The Servicer will prepare the form in duplicate and send the original together
with evidence of conveyance of title and appropriate supporting documentation to
the Master Servicer with the Monthly Accounting Reports which supports the
Mortgage Loan's removal from the Mortgage Loan Activity Report. The Servicer
will retain the duplicate for its own records.
Due Date
--------
With respect to any liquidated Mortgage Loan, the form will be submitted to the
Master Servicer no later than the date on which statements are due to the Master
Servicer under Section 4.02 of this Agreement (the "Statement Date") in the
month following receipt of final liquidation proceeds and supporting
documentation relating to such liquidated Mortgage Loan; provided, that if such
Statement Date is not at least 30 days after receipt of final liquidation
proceeds and supporting documentation relating to such liquidated Mortgage Loan,
then the form will be submitted on the first Statement Date occurring after the
30th day following receipt of final liquidation proceeds and supporting
documentation.
Preparation Instructions
------------------------
The numbers on the form correspond with the numbers listed below.
1. The actual Unpaid Principal Balance of the Mortgage Loan.
2. The Total Interest Due less the aggregate amount of servicing fee that would
have been earned if all delinquent payments had been made as agreed.
3-7. Complete as necessary. All line entries must be supported by copies of
appropriate statements, vouchers, receipts, canceled checks, etc., to
document the expense. Entries not properly documented will not be
reimbursed to the Servicer.
8. Accrued Servicing Fees based upon the Scheduled Principal Balance of
the Mortgage Loan as calculated on a monthly basis.
10. The total of lines 1 through 9.
Credits
-------
11-17. Complete as necessary. All line entries must be supported by copies of
the appropriate claims forms, statements, payment checks, etc. to
document the credit. If the Mortgage Loan is subject to a Bankruptcy
Deficiency, the difference between the Unpaid Principal Balance of the
Note prior to the Bankruptcy Deficiency and the Unpaid Principal
Balance as reduced by the Bankruptcy Deficiency should be input on
line 16.
18. The total of lines 11 through 17.
Total Realized Loss (or Amount of Any Gain)
-------------------------------------------
19. The total derived from subtracting line 18 from 10. If the amount
represents a realized gain, show the amount in parenthesis ( ).
▇▇▇▇▇ FARGO BANK, N.A.
CALCULATION OF REALIZED LOSS
▇▇▇▇▇ FARGO BANK, N.A. Trust: ___________________________
Prepared by: __________________ Date: _______________
Phone: ______________________
Servicer Loan No. Servicer Name Servicer Address
▇▇▇▇▇ FARGO BANK, N.A.
Loan No._____________________________
Borrower's Name:________________________________________________________
Property
Address:________________________________________________________________
Liquidation and Acquisition Expenses:
Actual Unpaid Principal Balance of Mortgage Loan $ _______________(1)
Interest accrued at Net Rate ________________(2)
Attorney's Fees ________________(3)
Taxes ________________(4)
Property Maintenance ________________(5)
MI/Hazard Insurance Premiums ________________(6)
Hazard Loss Expenses ________________(7)
Accrued Servicing Fees ________________(8)
Other (itemize) ________________(9)
$__________________
Total Expenses $ ______________(10)
Credits:
Escrow Balance $ ______________(11)
HIP Refund ________________(12)
Rental Receipts ________________(13)
Hazard Loss Proceeds ________________(14)
Primary Mortgage Insurance Proceeds ________________(15)
Proceeds from Sale of Acquired Property ________________(16)
Other (itemize) ________________(17)
___________________
___________________
Total Credits $________________(18)
Total Realized Loss (or Amount of Gain) $________________
APPENDIX I
----------
Articles IV and V of the Master Mortgage Loan Purchase and Servicing Agreement
------------------------------------------------------------------------------
ARTICLE IV.
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 4.01 Countrywide to Act as Servicer.
Countrywide, as independent contract servicer, shall service and administer
Mortgage Loans sold pursuant to this Agreement in accordance with the Accepted
Servicing Practices and the terms of this Agreement and shall have full power
and authority, acting alone, to do or cause to be done any and all things, in
connection with such servicing and administration, that Countrywide may deem
necessary or desirable and consistent with the terms of this Agreement. In
servicing and administering the Mortgage Loans, Countrywide shall employ
procedures in accordance with the customary and usual standards of practice of
prudent mortgage servicers. Notwithstanding anything to the contrary contained
herein, in servicing and administering Government Mortgage Loans, Countrywide
shall not take, or fail to take, any action that would result in the denial of
coverage under any LGC or MIC, as applicable. Without limiting the generality of
the foregoing, with respect to any Government Mortgage Loan, Countrywide shall
be permitted to deviate from the servicing practices set forth herein if such
deviation would be consistent with the servicing practices employed in
connection with any similar mortgage loan constituting a part of a GNMA
mortgage-backed security.
In accordance with the terms of this Agreement, Countrywide 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 Countrywide's reasonable and prudent determination such waiver,
modification, postponement or indulgence is not materially adverse to the
Purchaser; provided, however, that Countrywide shall not permit any
modification, waiver, or forbearance with respect to any Mortgage Loan that
would decrease the Mortgage Interest Rate (other than by adjustments required by
the terms of the Mortgage Note), result in the denial of coverage under a PMI
Policy, LGC or MIC, defer or forgive the payment of any principal or interest
payments, reduce the outstanding principal amount (except for actual payments of
principal), make future advances or extend the final maturity date on such
Mortgage Loan without the Purchaser's consent or otherwise constitute a
"significant modification" within the meaning of Treasury Regulations Section
1.860G-2(b). Countrywide may permit forbearance or allow for suspension of
Monthly Payments for up to one hundred twenty (120) days if the Mortgagor is in
default or Countrywide determines in its reasonable discretion, that default is
imminent and if Countrywide determines that granting such forbearance or
suspension is in the best interest of the Purchaser. If any modification,
forbearance or suspension permitted hereunder allows the deferral of interest or
principal payments on any Mortgage Loan, Countrywide shall include in each
remittance for any month in which any such principal or interest payment has
been deferred (without giving effect to such modification, forbearance or
suspension) an amount equal to such month's principal and one (1) month's
interest at the Mortgage Loan Remittance Rate on the then unpaid principal
balance of the Mortgage Loan and shall be entitled to reimbursement for such
advances only to the same extent as for Monthly Advances made pursuant to
Section 5.03. Countrywide shall notify the Purchaser, in writing, of any
modification, waiver, forbearance or amendment of any term of any Mortgage Loan
and the date thereof, and shall deliver to the Purchaser (or, at the direction
of the Purchaser, the Custodian) for deposit in the related Mortgage File, an
original counterpart of the agreement relating to such modification, waiver,
forbearance or amendment, promptly (and in any event within thirty (30) days)
following the execution thereof; provided, however, that if any such
modification, waiver, forbearance or amendment is required by applicable law to
be recorded, Countrywide (i) shall deliver to the Purchaser a copy thereof and
(ii) shall deliver to the Purchaser such document, with evidence of recordation
upon receipt thereof from the public recording office.
Without limiting the generality of the foregoing, Countrywide shall continue,
and is hereby authorized and empowered to execute and deliver on behalf of
itself and the Purchaser, all instruments of satisfaction or cancellation, or of
partial or full release, discharge and all other comparable instruments, with
respect to the Mortgage Loans and with respect to the Mortgaged Property. If
reasonably required by Countrywide, the Purchaser shall furnish Countrywide with
any powers of attorney and other documents necessary or appropriate to enable
Countrywide to carry out its servicing and administrative duties under this
Agreement.
Section 4.02 Collection of Mortgage Loan Payments.
Countrywide shall make reasonable efforts, in accordance with the Accepted
Servicing Practices and this Agreement, to collect all payments due under each
Mortgage Loan and shall exercise reasonable care in ascertaining and estimating
Escrow Payments and all other charges that will become due and payable with
respect to the Mortgage Loan and Mortgaged Property.
Section 4.03 Realization Upon Defaulted Mortgage Loans.
(a) Foreclosure. In accordance with Accepted Servicing Practices, Countrywide
shall use reasonable efforts to foreclose upon or otherwise comparably convert
the ownership of properties securing such of the Mortgage Loans as come into and
continue in default and as to which no satisfactory arrangements can be made for
collection of delinquent payments. Countrywide shall use reasonable efforts to
realize upon defaulted Mortgage Loans, in such manner as will maximize the
receipt of principal and interest by the Purchaser, taking into account, among
other things, the timing of foreclosure proceedings. The foregoing is subject to
the provisions that, in any case in which Mortgaged Property shall have suffered
damage, Countrywide shall not be required to expend its own funds toward the
restoration of such property unless it shall determine in its discretion (i)
that such restoration will increase the proceeds of liquidation of the related
Mortgage Loan to the Purchaser after reimbursement to itself for such expenses,
and (ii) that such expenses will be recoverable by Countrywide through PMI
Proceeds, Government Insurance Proceeds, Other Insurance Proceeds or Liquidation
Proceeds from the related Mortgaged Property. Countrywide shall notify the
Purchaser in writing of the commencement of foreclosure proceedings. Such notice
may be contained in the reports prepared by Countrywide and delivered to the
Purchaser pursuant to the terms and conditions of this Agreement. Countrywide
shall be responsible for all costs and expenses incurred by it in any
foreclosure proceedings; provided, however, that it shall be entitled to
reimbursement thereof from proceeds from the related Mortgaged Property.
Notwithstanding anything to the contrary contained herein, in connection with a
foreclosure or acceptance of a deed in lieu of foreclosure, in the event
Countrywide 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, Countrywide shall
promptly provide the Purchaser with a written report of the environmental
inspection.
After reviewing the environmental inspection report, the Purchaser shall
determine how Countrywide shall proceed with respect to the Mortgaged Property.
In the event (a) the environmental inspection report indicates that the
Mortgaged Property is contaminated by hazardous or toxic substances or wastes
and (b) the Purchaser directs Countrywide to proceed with foreclosure or
acceptance of a deed in lieu of foreclosure, Countrywide 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 Countrywide, Countrywide shall be entitled to be
reimbursed from amounts in the Custodial Account pursuant to Section 4.05
hereof. In the event the Purchaser directs Countrywide not to proceed with
foreclosure or acceptance of a deed in lieu of foreclosure, Countrywide 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 4.04 Establishment of Custodial Accounts; Deposits in Custodial
Accounts.
Countrywide shall segregate and hold all funds collected and received pursuant
to each Mortgage Loan separate and apart from any of its own funds and general
assets and shall establish and maintain one (1) or more Custodial Accounts, in
the form of time deposit or demand accounts, titled "[Countrywide], in trust for
Banc of America Mortgage Capital Corporation and/or subsequent purchasers of
Mortgage Loans - P&I." Countrywide shall provide the Purchaser with written
evidence of the creation of such Custodial Account(s) upon the request of the
Purchaser.
Countrywide shall deposit in the Custodial Account within two (2) Business Days,
and retain therein, the following payments and collections received or made by
it subsequent to the Cut-off Date, or received by it prior to the Cut-off Date
but allocable to a period subsequent thereto, other than in respect of principal
and interest on the Mortgage Loans due on or before the Cut-off Date:
(a) all payments on account of principal, including Principal Prepayments, on
the Mortgage Loans;
(b) all payments on account of interest on the Mortgage Loans, adjusted to the
Mortgage Loan Remittance Rate;
(c) all proceeds from a Cash Liquidation;
(d) all PMI Proceeds, Government Insurance Proceeds and Other Insurance
Proceeds, including amounts required to be deposited pursuant to Sections 4.08
and 4.10, other than proceeds to be applied to the restoration or repair of the
Mortgaged Property or released to the Mortgagor in accordance with the Accepted
Servicing Practices, the loan documents or applicable law;
(e) all Condemnation Proceeds affecting any Mortgaged Property that are not
released to the Mortgagor in accordance with the Accepted Servicing Practices,
the loan documents or applicable law;
(f) all Monthly Advances;
(g) all proceeds of any Mortgage Loan repurchased in accordance with Section
3.03 or 3.04, and any amount required to be deposited by Countrywide in
connection with any shortfall in principal amount of the Qualified Substitute
Mortgage Loans and the repurchased Mortgage Loans as required pursuant to
Section 3.03;
(h) any amounts required to be deposited by Countrywide pursuant to Section 4.10
in connection with the deductible clause in any blanket hazard insurance policy
(such deposit shall be made from Countrywide's own funds, without reimbursement
therefor);
(i) the Prepayment Interest Shortfall Amount, if any, for the month of
distribution (such deposit shall be made from Countrywide's own funds, without
reimbursement therefor up to a maximum amount per month equal to the lesser of
(a) one-twelfth of the product of (i) the Servicing Fee Rate and (ii) the Stated
Principal Balance of such Mortgage Loans, or (b) the aggregate Servicing Fee
actually received for such month for the Mortgage Loans); and
(j) any amounts required to be deposited by Countrywide in connection with any
REO Property pursuant to Section 4.13.
The foregoing requirements for deposit in the Custodial Account are exclusive.
The Purchaser understands and agrees that, without limiting the generality of
the foregoing, payments in the nature of late payment charges, prepayment
penalties and assumption fees (to the extent permitted by Section 4.16) need not
be deposited by Countrywide in the Custodial Account. Any interest paid by the
depository institution on funds deposited in the Custodial Account shall accrue
to the benefit of Countrywide and Countrywide shall be entitled to retain and
withdraw such interest from the Custodial Account pursuant to Section 4.05(d).
All funds required to be deposited in the Custodial Account shall be held in
trust for the Purchaser until withdrawn in accordance with Section 4.05.
Section 4.05 Permitted Withdrawals From the Custodial Account.
Countrywide may, from time to time, withdraw funds from the Custodial Account
for the following purposes:
(a) to make payments to the Purchaser in the amounts and in the manner provided
for in Sections 5.01 and 5.03;
(b) to reimburse itself for Monthly Advances (Countrywide's reimbursement for
Monthly Advances shall be limited to amounts received on the related Mortgage
Loan (or to amounts received on the Mortgage Loans as a whole if the Monthly
Advance is made due to a shortfall in a Monthly Payment made by a Mortgagor
entitled to relief under the Soldiers' and Sailors' Civil Relief Act of 1940)
which represent Late Collections, net of the related Servicing Fee and LPMI Fee,
if applicable. Countrywide's right to reimbursement hereunder shall be prior to
the rights of the Purchaser, except that, where Countrywide is required to
repurchase a Mortgage Loan pursuant to Sections 3.03 or 3.04 or Countrywide is
required to remit a sum pursuant to the applicable provision of Section 4.17,
Countrywide's right to such reimbursement shall be subsequent to the payment to
the Purchaser of the Repurchase Price and all other amounts required to be paid
to the Purchaser with respect to such Mortgage Loans. Notwithstanding the
foregoing, Countrywide may reimburse itself for Monthly Advances from any funds
in the Custodial Account if it has determined that such funds are nonrecoverable
advances or if all funds, with respect to the related Mortgage Loan, have
previously been remitted to the Purchaser);
(c) to reimburse itself for unreimbursed Servicing Advances and any unpaid
Servicing Fees (Countrywide's reimbursement for Servicing Advances and/or
Servicing Fees hereunder with respect to any Mortgage Loan shall be limited to
proceeds from Cash Liquidation, Liquidation Proceeds, Condemnation Proceeds, PMI
Proceeds, Government Insurance Proceeds and Other Insurance Proceeds; provided,
however, that Countrywide may reimburse itself for Servicing Advances and
Servicing Fees from any funds in the Custodial Account if all funds, with
respect to the related Mortgage Loan, have previously been remitted to the
Purchaser. Notwithstanding the foregoing, with respect to each Government
Mortgage Loan, Countrywide shall not be entitled to reimbursement of any
Servicing Advances that constitute losses and expenses for which an issuer of
GNMA securities would be responsible, pursuant to Chapter 4 of the GNMA Handbook
5500.2, if such Government Mortgage Loan had been included in a GNMA security);
(d) to pay to itself as servicing compensation (i) any interest earned on funds
in the Custodial Account (all such interest to be withdrawn monthly not later
than each Remittance Date), and (ii) the Servicing Fee and the LPMI Fee, if
applicable, from that portion of any payment or recovery of interest on a
particular Mortgage Loan;
(e) to pay to itself, with respect to each Mortgage Loan that has been
repurchased pursuant to Section 3.03 or 3.04, all amounts received but not
distributed as of the date on which the related Repurchase Price is determined;
(f) to reimburse itself for any amounts deposited in the Custodial Account in
error; and
(g) to clear and terminate the Custodial Account upon the termination of this
Agreement.
Section 4.06 Establishment of Escrow Accounts; Deposits in Escrow Accounts.
Countrywide shall segregate and hold all funds collected and received pursuant
to each Mortgage Loan which constitute Escrow Payments separate and apart from
any of its own funds and general assets and shall establish and maintain one (1)
or more Escrow Accounts in the form of time deposit or demand accounts, which
accounts shall be Eligible Accounts, titled "[Countrywide], in trust for Banc of
America Mortgage Capital Corporation and/or subsequent purchasers of Mortgage
Loans and various mortgagors - T&I." Countrywide shall provide the Purchaser
with written evidence of the creation of such Escrow Account(s) upon the request
of the Purchaser.
Countrywide shall deposit in the Escrow Account(s) within two (2) Business Days,
and retain therein, (a) all Escrow Payments collected on account of the Mortgage
Loans, and (b) all Other Insurance Proceeds that are to be applied to the
restoration or repair of any Mortgaged Property. Countrywide shall make
withdrawals therefrom only to effect such payments as are required under this
Agreement, and for such other purposes in accordance with Section 4.07.
Countrywide shall be entitled to retain any interest paid by the depository
institution on funds deposited in the Escrow Account except interest on escrowed
funds required by law to be paid to the Mortgagor. Countrywide shall pay
Mortgagor interest on the escrowed funds at the rate required by law
notwithstanding that the Escrow Account is non-interest bearing or the interest
paid by the depository institution thereon is insufficient to pay the Mortgagor
interest at the rate required by law.
Section 4.07 Permitted Withdrawals From Escrow Account.
Countrywide may, from time to time, withdraw funds from the Escrow Account(s)
for the following purposes: (a) to effect timely payments of ground rents,
taxes, assessments, water rates, mortgage insurance premiums, PMI Policy
premiums, if applicable, and comparable items; (b) to reimburse Countrywide for
any Servicing Advance made by Countrywide with respect to a related Mortgage
Loan; provided, however, that such reimbursement shall only be made from amounts
received on the related Mortgage Loan that represent late payments or
collections of Escrow Payments thereunder; (c) to refund to the Mortgagor any
funds as may be determined to be overages; (d) for transfer to the Custodial
Account in accordance with the terms of this Agreement; (e) for application to
restoration or repair of the Mortgaged Property; (f) to pay to Countrywide, or
to the Mortgagors to the extent required by law, any interest paid on the funds
deposited in the Escrow Account; (g) to reimburse itself for any amounts
deposited in the Escrow Account in error; or (h) to clear and terminate the
Escrow Account on the termination of this Agreement.
Section 4.08 Transfer of Accounts.
Countrywide may transfer the Custodial Account or the Escrow Account to a
different depository institution from time to time provided that such Custodial
Account and Escrow Account shall at all times be Eligible Accounts. Countrywide
shall notify the Purchaser of any such transfer within five (5) days thereafter.
Section 4.09 Payment of Taxes, Insurance and Other Charges; Maintenance of PMI
Policies; Collections Thereunder.
With respect to each Mortgage Loan, Countrywide shall maintain accurate records
reflecting the status of (a) ground rents, taxes, assessments, water rates and
other charges that are or may become a lien upon the Mortgaged Property; (b)
primary mortgage insurance premiums; (c) with respect to Mortgage Loans insured
by the FHA, mortgage insurance premiums, and (d) fire and hazard insurance
premiums. Countrywide shall obtain, from time to time, all bills for the payment
of such charges, including renewal premiums, and shall effect payment thereof
prior to the applicable penalty or termination date and at a time appropriate
for securing maximum discounts allowable using Escrow Payments which shall have
been estimated and accumulated by Countrywide in amounts sufficient for such
purposes. To the extent that the Mortgage does not provide for Escrow Payments,
Countrywide shall determine that any such payments are made by the Mortgagor at
the time they first become due. Countrywide assumes full responsibility for the
timely payment of all such bills and shall effect timely payments of all such
bills, irrespective of the Mortgagor's faithful performance in the payment of
same or the making of the Escrow Payments, and shall make advances from its own
funds to effect such payments.
Countrywide will maintain in full force and effect, a PMI Policy conforming in
all respects to the description set forth in Section 3.02(v), issued by an
insurer described in that Section, with respect to each Mortgage Loan for which
such coverage is herein required. Such coverage will be maintained until the LTV
or the Updated LTV of the related Mortgage Loan is reduced to 80% or less in the
case of a Mortgage Loan having a LTV at origination in excess of 80%.
Countrywide will not cancel or refuse to renew any PMI Policy in effect on the
Closing Date that is required to be kept in force under this Agreement unless a
replacement PMI Policy is obtained from and maintained with an insurer that is
approved by an Agency. Countrywide shall not take any action that would result
in non-coverage under any applicable PMI Policy of any loss that, but for the
actions of Countrywide, would have been covered thereunder. In connection with
any assumption or substitution agreement entered into or to be entered into
pursuant to Section 4.16, Countrywide shall promptly notify the insurer under
the related PMI Policy, if any, of such assumption or substitution of liability
in accordance with the terms of such policy and shall take all actions that may
be required by such insurer as a condition to the continuation of coverage under
the PMI Policy. If such PMI Policy is terminated as a result of such assumption
or substitution of liability, Countrywide shall obtain a replacement PMI Policy
as provided above.
Unless otherwise provided in the related Purchase Confirmation, no Mortgage Loan
has in effect as of the Closing Date any mortgage pool insurance policy or other
credit enhancement, except for any PMI Policy, MIC or LGC and the insurance or
guarantee relating thereto, as applicable (excluding such exception, the "Credit
Enhancement"), and Countrywide shall not be required to take into consideration
the existence of any such Credit Enhancement for the purposes of performing its
servicing obligations hereunder. If the Purchaser shall at any time after the
related Closing Date notify Countrywide in writing of its desire to obtain any
such Credit Enhancement, the Purchaser and Countrywide shall thereafter
negotiate in good faith for the procurement and servicing of such Credit
Enhancement.
Section 4.10 Maintenance of Hazard Insurance.
Countrywide shall cause to be maintained, for each Mortgage Loan, fire and
hazard insurance with extended coverage as is customary in the area where the
Mortgaged Property is located in an amount that is equal to the lesser of (a)
the maximum insurable value of the improvements securing such Mortgage Loan or
(b) the greater of (i) the unpaid principal balance of the Mortgage Loan, and
(ii) the percentage such that the proceeds thereof shall be sufficient to
prevent the Mortgagor and/or the Mortgagee from becoming a co-insurer. 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 an Agency, Countrywide
shall notify the Purchaser and the related Mortgagor, and shall use its best
efforts, as permitted by applicable law, to assure that a replacement hazard
insurance policy substantially and materially similar in all respects to the
original policy is obtained from a qualified insurer. If the Mortgaged Property
is in an area identified in the Federal Register by the Flood Emergency
Management Agency as having special flood hazards and such flood insurance has
been made available, Countrywide shall cause to be maintained a flood insurance
policy meeting the requirements of the current guidelines of the National Flood
Insurance Administration program (or any successor thereto) with a generally
acceptable insurance carrier and with coverage in an amount not less than the
lesser of (x) the unpaid principal balance of the Mortgage Loan; (y) full
replacement value of the improvements which are a part of the Mortgaged
Property; or (z) the maximum amount of insurance which is available under the
National Flood Insurance Reform Act of 1994. Countrywide shall also maintain on
REO Property, (1) fire and hazard insurance with extended coverage in an amount
that is not less than the maximum insurable value of the improvements that are a
part of such property; (2) liability insurance; and (3) to the extent required
and available under the National Flood Insurance Reform Act of 1994, flood
insurance in an amount as provided above. Countrywide shall deposit in the
Custodial Account all amounts collected under any such policies except (A)
amounts to be deposited in the Escrow Account and applied to the restoration or
repair of the Mortgaged Property or REO Property and (B) amounts to be released
to the Mortgagor in accordance with the Accepted Servicing Practices. The
Purchaser understands and agrees that no earthquake or other additional
insurance on property acquired in respect of the Mortgage Loan shall be
maintained by Countrywide or Mortgagor. All policies required hereunder shall be
endorsed with standard mortgagee clauses with loss payable to Countrywide and
shall provide for at least thirty (30) days prior written notice to Countrywide
of any cancellation, reduction in the amount of coverage or material change in
coverage. Countrywide shall not interfere with the Mortgagor's freedom of choice
in selecting either the insurance carrier or agent; provided, however, that
Countrywide shall only accept insurance policies from insurance companies
acceptable to an Agency and licensed to do business in the state wherein the
property subject to the policy is located.
Section 4.11 Business Continuity Plan/Disaster Recovery.
Countrywide shall establish and maintain contingency plans, recovery plans and
proper risk controls to ensure Countrywide's continued performance under this
Agreement. The plans must be in place within thirty (30) calendar days after the
Closing Date of this Agreement and shall include, but not be limited to,
testing, control functions, accountability and corrective actions to be
implemented, if necessary. Countrywide agrees to make copies or summaries of the
plans available to the Purchaser or its regulators upon request.
Section 4.12 Fidelity Bond; Errors and Omissions Insurance.
Countrywide shall maintain, at its own expense, a blanket Fidelity Bond and an
errors and omissions insurance policy with responsible companies, with broad
coverage of all officers, employees or other persons acting in any capacity with
regard to the Mortgage Loan who handle funds, money, documents or papers
relating to the Mortgage Loan. The Fidelity Bond and errors and omissions
insurance shall be in the form of the Mortgage Banker's Blanket Bond and shall
protect and insure Countrywide against losses, including forgery, theft,
embezzlement, fraud, errors and omissions and negligent acts of its officers,
employees and agents. Such Fidelity Bond shall also protect and insure
Countrywide against losses in connection with the failure to maintain any
insurance policies required pursuant to this Agreement and the release or
satisfaction of a Mortgage Loan without having obtained payment in full of the
indebtedness secured thereby. No provision of this Section 4.12 shall diminish
or relieve Countrywide from its duties and obligations as set forth in this
Agreement. The minimum coverage under any such Fidelity Bond and errors and
omissions insurance policy shall be at least equal to the corresponding amounts
required by an Agency for an approved seller/servicer.
Section 4.13 Title, Management and Disposition of REO Property.
(a) Title. In the event that title to the Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure, the deed or certificate of sale
shall be taken in the name of Countrywide for the benefit of the Purchaser, or
in the event the Purchaser is not authorized or permitted to hold title to real
property in the state where the REO Property is located, or would be adversely
affected under the "doing business" or tax laws of such state by so holding
title, the deed or certificate of sale shall be taken in the name of such
Person(s) as shall be consistent with an Opinion of Counsel obtained by
Countrywide from an attorney duly licensed to practice law in the state where
the REO Property is located. Any Person(s) holding such title other than the
Purchaser shall acknowledge in writing that such title is being held as nominee
for the benefit of the Purchaser.
(b) Management. Countrywide shall either itself or through an agent selected by
Countrywide, manage, conserve, protect and operate each REO Property in the same
manner that it manages, conserves, protects and operates other foreclosed
property for its own account. Countrywide shall cause each REO Property to be
inspected promptly upon the acquisition of title thereto and shall cause each
REO Property to be inspected at least annually thereafter or more frequently as
required by the circumstances. Countrywide shall make or cause to be made a
written report of each such inspection. Such reports shall be retained in the
Credit File and copies thereof shall be forwarded by Countrywide to the
Purchaser within five (5) days of the Purchaser's request therefor. Countrywide
shall promptly attempt to sell the REO Property (and may temporarily rent the
same) on such terms and conditions as Countrywide deems to be in the best
interest of the Purchaser. Countrywide shall deposit, or cause to be deposited,
within two (2) Business Days of receipt, in the Custodial Account all revenues
received with respect to each REO Property and shall withdraw therefrom funds
necessary for the proper operation, management and maintenance of each REO
Property, including the cost of maintaining any hazard insurance pursuant to
Section 4.10 hereof and the fees of any managing agent acting on behalf of
Countrywide. Notwithstanding anything contained in this Agreement to the
contrary, upon written notice to Countrywide, the Purchaser may elect to assume
the management and control of any REO Property; provided, however, that prior to
giving effect to such election, the Purchaser shall reimburse Countrywide for
all previously unreimbursed or unpaid Monthly Advances, Servicing Advances and
Servicing Fees related to such REO Property.
(c) Disposition. Subject to the following paragraph, Countrywide shall use
reasonable efforts to dispose of each REO Property as soon as possible and shall
sell each REO Property no later than one (1) year after title to such REO
Property has been obtained, unless Countrywide determines, and gives an
appropriate notice to the Purchaser, that a longer period is necessary for the
orderly disposition of any REO Property. If a period longer than one (1) year is
necessary to sell any REO Property, Countrywide shall, if requested by the
Purchaser, report monthly to the Purchaser as to the progress being made in
selling such REO Property.
Each REO Disposition shall be carried out by Countrywide at such price and upon
such terms and conditions as Countrywide deems to be in a manner that maximizes
the net present value of the recovery to the Purchaser. If, as of the date title
to any REO Property was acquired by Countrywide, there were outstanding
unreimbursed Servicing Advances, Monthly Advances or Servicing Fees with respect
to the REO Property or the related Mortgage Loan, Countrywide, upon an REO
Disposition of such REO Property, shall be entitled to reimbursement for any
related unreimbursed Servicing Advances, Monthly Advances and Servicing Fees
from proceeds received in connection with such REO Disposition. The proceeds
from the REO Disposition, net of any payment to Countrywide as provided above,
shall be deposited in the Custodial Account and distributed to the Purchaser in
accordance with Section 5.01.
Section 4.14 Notification of Adjustments.
With respect to each Adjustable Rate Mortgage Loan, Countrywide shall adjust the
Mortgage Interest Rate on the related Interest Adjustment Date and shall adjust
the Monthly Payment on the related Payment Adjustment Date in compliance with
the requirements of applicable law and the related Mortgage and Mortgage Note.
If, pursuant to the terms of the Mortgage Note, another index is selected for
determining the Mortgage Interest Rate because the original index is no longer
available, the same index will be used with respect to each Mortgage Note which
requires a new index to be selected, provided that such selection does not
conflict with the terms of the related Mortgage Note. Countrywide shall execute
and deliver any and all necessary notices required under applicable law and the
terms of the related Mortgage Note and Mortgage regarding the Mortgage Interest
Rate and the Monthly Payment adjustments. Countrywide shall promptly, upon
written request therefor, deliver to the Purchaser such notifications and any
additional applicable data regarding such adjustments and the methods used to
calculate and implement such adjustments. Upon the discovery by Countrywide or
the Purchaser that Countrywide has failed to adjust a Mortgage Interest Rate or
a Monthly Payment pursuant to the terms of the related Mortgage Note and
Mortgage, Countrywide shall immediately deposit in the Custodial Account, from
its own funds, the amount of any interest loss caused the Purchaser thereby
without reimbursement therefor.
Section 4.15 Notification of Maturity Date.
With respect to each Balloon Mortgage Loan, Countrywide shall execute and
deliver to the Mortgagor any and all necessary notices required under applicable
law and the terms of the related Mortgage Note and Mortgage regarding the
maturity date and final balloon payment.
Section 4.16 Assumption Agreements.
Countrywide shall, to the extent it has knowledge of any conveyance or
prospective conveyance by any Mortgagor of the Mortgaged Property (whether by
absolute conveyance or by contract of sale, and whether or not the Mortgagor
remains or is to remain liable under the Mortgage Note and/or the Mortgage),
exercise its rights to accelerate the maturity of such Mortgage Loan under any
"due-on-sale" clause to the extent permitted by law; provided, however, that
Countrywide shall not exercise any such right if prohibited from doing so by law
or the terms of the Mortgage Note or if the exercise of such right would impair
or threaten to impair any recovery under the related PMI Policy, if any. If
Countrywide reasonably believes it is unable under applicable law to enforce
such "due-on-sale" clause, Countrywide shall enter into an assumption agreement
with the Person to whom the Mortgaged Property has been conveyed or is proposed
to be conveyed, pursuant to which such Person becomes liable under the Mortgage
Note and, to the extent permitted by applicable state law, the Mortgagor remains
liable thereon. Where an assumption is allowed pursuant to this Section 4.16,
the Purchaser authorizes Countrywide, with the prior written consent of the
primary mortgage insurer, if any, to enter into a substitution of liability
agreement with the Person to whom the Mortgaged Property has been conveyed or is
proposed to be conveyed pursuant to which the original Mortgagor is released
from liability and such Person is substituted as Mortgagor and becomes liable
under the related Mortgage Note. Any such substitution of liability agreement
shall be in lieu of an assumption agreement.
In connection with any such assumption or substitution of liability, Countrywide
shall follow the underwriting practices and procedures employed by Countrywide
for mortgage loans originated by Countrywide for its own account in effect at
the time such assumption or substitution is made. With respect to an assumption
or substitution of liability, the Mortgage Interest Rate borne by the related
Mortgage Note, the term of the Mortgage Loan and the outstanding principal
amount of the Mortgage Loan shall not be changed. Countrywide shall notify the
Purchaser that any such substitution of liability or assumption agreement has
been completed by forwarding to the Purchaser or its designee the original of
any such substitution of liability or assumption agreement, which document shall
be added to the related Collateral File and shall, for all purposes, be
considered a part of such Collateral File to the same extent as all other
documents and instruments constituting a part thereof.
Notwithstanding anything to the contrary contained herein, Countrywide shall not
be deemed to be in default, breach or any other violation of its obligations
hereunder by reason of any assumption of a Mortgage Loan by operation of law or
any assumption that Countrywide may be restricted by law from preventing, for
any reason whatsoever. For purposes of this Section 4.16, the term "assumption"
is deemed to also include a sale of the Mortgaged Property subject to the
Mortgage that is not accompanied by an assumption or substitution of liability
agreement.
Section 4.17 Satisfaction of Mortgages and Release of Collateral Files.
Upon the payment in full of any Mortgage Loan, or the receipt by Countrywide of
a notification that payment in full will be escrowed in a manner customary for
such purposes, Countrywide shall immediately notify the Purchaser. Such notice
shall include a statement to the effect that all amounts received or to be
received in connection with such payment, which are required to be deposited in
the Custodial Account pursuant to Section 4.04, have been or will be so
deposited and shall request delivery to it of the portion of the Collateral File
held by the Purchaser or the Custodian. Upon receipt of such notice and request,
the Purchaser, or its designee, shall within five (5) Business Days release or
cause to be released to Countrywide the related Collateral Documents and
Countrywide shall prepare and process any satisfaction or release. In the event
that the Purchaser fails to release or cause to be released to Countrywide the
related Collateral Documents within five (5) Business Days of Countrywide's
request therefor, the Purchaser shall be liable to Countrywide for any
additional expenses or costs, including, but not limited to, outsourcing fees
and penalties, incurred by Countrywide resulting from such failure. No expense
incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the Custodial Account.
In the event Countrywide satisfies or releases a Mortgage without having
obtained payment in full of the indebtedness secured by the Mortgage or should
it otherwise prejudice any right the Purchaser may have under the mortgage
instruments, Countrywide, upon written demand, shall remit to the Purchaser the
then unpaid principal balance of the related Mortgage Loan by deposit thereof in
the Custodial Account. Countrywide shall maintain the Fidelity Bond insuring
Countrywide against any loss it may sustain with respect to any Mortgage Loan
not satisfied in accordance with the procedures set forth herein.
From time to time and as appropriate for the service or foreclosure of a
Mortgage Loan, including for the purpose of collection under any PMI Policy, the
Purchaser, its designee, or the Custodian shall, within five (5) Business Days
of Countrywide's request and delivery to the Purchaser, its designee, or the
Custodian of a servicing receipt signed by a Servicing Officer, release or cause
to be released to Countrywide the portion of the Collateral File held by the
Purchaser, its designee, or the Custodian. Pursuant to the servicing receipt,
Countrywide shall be obligated to return to the Purchaser, its designee, or the
Custodian the related Collateral File when Countrywide no longer needs such
file, unless the Mortgage Loan has been liquidated and the Liquidation Proceeds
relating to the Mortgage Loan have been deposited in the Custodial Account or
the Collateral File or such document has been delivered to an attorney, or to a
public trustee or other public official as required by law, for purposes of
initiating or pursuing legal action or other proceedings for the foreclosure of
the Mortgaged Property either judicially or non-judicially. In the event that
the Purchaser fails to release or cause to be released to Countrywide the
portion of the Collateral File held by the Purchaser or its designee within five
(5) Business Days of Countrywide's request therefor, the Purchaser shall be
liable to Countrywide for any additional expenses or costs, including, but not
limited to, outsourcing fees and penalties, incurred by Countrywide resulting
from such failure. Upon receipt of notice from Countrywide stating that such
Mortgage Loan was liquidated, the Purchaser shall release Countrywide from its
obligations under the related servicing receipt.
Section 4.18 Servicing Compensation.
As compensation for its services hereunder, Countrywide shall be entitled to
withdraw from the Custodial Account, or to retain from interest payments on the
Mortgage Loans, the amounts provided for as Servicing Fees. Except as otherwise
provided hereunder, the obligation of the Purchaser to pay the Servicing Fee is
limited to, and payable solely from, the interest portion of the Monthly
Payments. Notwithstanding the foregoing, with respect to the payment of the
Servicing Fee for any month, the aggregate Servicing Fee shall be reduced (but
not less than zero) by an amount equal to the Prepayment Interest Shortfall for
the related Due Period. Additional servicing compensation in the form of
assumption fees (as provided in Section 4.16), late payment charges, prepayment
penalties or otherwise shall be retained by Countrywide to the extent not
required to be deposited in the Custodial Account. Countrywide shall be required
to pay all expenses incurred by it in connection with its servicing activities
hereunder and shall not be entitled to reimbursement therefor except as
specifically provided herein.
ARTICLE V.
PROVISIONS OF PAYMENTS AND REPORTS TO PURCHASER
Section 5.01 Distributions.
On each Remittance Date, Countrywide shall distribute to the Purchaser (a) all
amounts credited to the Custodial Account as of the close of business on the
preceding Determination Date, net of charges against or withdrawals from the
Custodial Account pursuant to Section 4.05; plus (b) all Monthly Advances, if
any, that Countrywide is obligated to distribute pursuant to Section 5.03; minus
(c) any amounts attributable to Principal Prepayments received after the related
Principal Prepayment Period; minus (d) any amounts attributable to Monthly
Payments collected but due on a Due Date or Dates subsequent to the preceding
Determination Date. It is understood that, by operation of Section 4.04, the
remittance on the first Remittance Date is to include principal collected after
the Cut-off Date through the preceding Determination Date plus interest,
adjusted to the Mortgage Loan Remittance Rate, collected through such
Determination Date exclusive of any portion thereof allocable to the period
prior to the Cut-off Date, with the adjustments specified in (b), (c) and (d)
above.
Section 5.02 Periodic Reports to the Purchaser.
(a) Monthly Reports. Not later than the fifth (5th) Business Day following the
Principal Prepayment Period, Countrywide shall furnish to the Purchaser via any
electronic medium a monthly report in a form reasonably acceptable to the
Purchaser, which report shall include with respect to each Mortgage Loan the
following loan-level information: (i) the scheduled balance as of the last day
of the related Due Period, (ii) all Principal Prepayments applied to the
Mortgagor's account during the related Principal Prepayment Period, (iii) the
delinquency and bankruptcy status of the Mortgage Loan, if applicable, (iv)
actual unpaid principal balance, (v) the date through which Monthly Payments
have been made; (vi) the current Mortgage Interest Rate, (vii) Mortgage Interest
Rate net of the Servicing Fee and the LPMI fee and (viii) the amount being
remitted.
(b) Miscellaneous Reports. Upon the foreclosure sale of any Mortgaged Property
or the acquisition thereof by the Purchaser pursuant to a deed-in-lieu of
foreclosure, Countrywide shall submit to the Purchaser a liquidation report with
respect to such Mortgaged Property, which report may be included with any other
reports prepared by Countrywide and delivered to the Purchaser pursuant to the
terms and conditions of this Agreement. With respect to any REO Property, and
upon the request of the Purchaser, Countrywide shall furnish to the Purchaser a
statement describing Countrywide's efforts during the previous month in
connection with the sale of such REO Property, including any rental of such REO
Property incidental to the sale thereof and an operating statement. Countrywide
shall also provide the Purchaser with such information concerning the Mortgage
Loans as is necessary for the Purchaser to prepare its federal income tax return
and as the Purchaser may reasonably request from time to time. The Purchaser
agrees to pay for all reasonable out-of-pocket expenses incurred by Countrywide
in connection with complying with any request made by the Purchaser hereunder if
such information is not customarily provided by Countrywide in the ordinary
course of servicing mortgage loans similar to the Mortgage Loans.
Section 5.03 Monthly Advances by Countrywide.
Not later than the close of business on the Determination Date preceding each
Remittance Date, Countrywide shall deposit in the Custodial Account an amount
equal to all payments not previously advanced by Countrywide, whether or not
deferred pursuant to Section 5.01, of principal (due after the Cut-off Date) and
interest not allocable to the period prior to the Cut-off Date, adjusted to the
Mortgage Loan Remittance Rate, which were due on a Mortgage Loan and delinquent
as of the close of business on the Business Day prior to the related
Determination Date. Notwithstanding anything to the contrary herein, Countrywide
may use amounts on deposit in the Custodial Account for future distribution to
the Purchaser to satisfy its obligation, if any, to deposit delinquent amounts
pursuant to the preceding sentence. To the extent Countrywide uses any funds
being held for future distribution to the Purchaser to satisfy its obligations
under this Section 5.03, Countrywide shall deposit in the Custodial Account an
amount equal to such used funds no later than the Determination Date prior to
the following Remittance Date to the extent that funds in the Custodial Account
on such Remittance Date are less than the amounts to be remitted to the
Purchaser pursuant to Section 5.01.
Countrywide's obligation to make such advances as to any Mortgage Loan will
continue through the earliest of: (a) the last Monthly Payment due prior to the
payment in full of the Mortgage Loan; (b) the Remittance Date prior to the
Remittance Date for the distribution of any Liquidation Proceeds, Other
Insurance Proceeds or Condemnation Proceeds which, in the case of Other
Insurance Proceeds and Condemnation Proceeds, satisfy in full the indebtedness
of such Mortgage Loan; or (c) the Remittance Date prior to the date the Mortgage
Loan is converted to REO Property; provided, however, with respect to any
Government Mortgage Loan that is converted to REO Property, Countrywide's
obligation to make such advances will continue in accordance with the applicable
governmental agency's guidelines. In no event shall Countrywide be obligated to
make an advance under this Section 5.03 if at the time of such advance it
reasonably determines that such advance will be unrecoverable.
Section 5.04 Annual Statement as to Compliance.
Countrywide shall deliver to the Purchaser on or before March 15th of each year,
beginning in the year following the Closing Date, an Officers' Certificate
stating, as to each signatory thereof, that (a) a review of the activities of
Countrywide during the preceding calendar year and of performance under this
Agreement has been made under such officers' supervision, and (b) to the best of
such officers' knowledge, based on such review, Countrywide has fulfilled all of
its obligations under this Agreement throughout such year, or, if there has been
a default in the fulfillment of any such obligation, specifying each such
default known to such officers and the nature and status thereof. Countrywide
shall provide the Purchaser with copies of such statements upon request.
Section 5.05 Annual Independent Certified Public Accountants' Servicing Report.
On or before March 15th of each year, beginning in the year following the
Closing Date, Countrywide at its expense shall cause a firm of independent
public accountants, which is a member of the American Institute of Certified
Public Accountants, to furnish a statement to the Purchaser to the effect that
such firm has examined certain documents and records relating to Countrywide's
servicing of mortgage loans of the same type as the Mortgage Loans, pursuant to
this Agreement or servicing agreements substantially similar to this Agreement,
and that, on the basis of such examination, conducted substantially in
accordance with the Uniform Single Audit Program for Mortgage Bankers, such firm
is of the opinion that Countrywide's servicing has been conducted in compliance
with this Agreement or such servicing agreements examined pursuant to this
Section 5.05 except for (a) such exceptions as such firm shall believe to be
immaterial, and (b) such other exceptions as shall be set forth in such
statement. Countrywide shall provide the Purchaser with copies of such
statements upon request.
Section 5.06 Purchaser's Access to Countrywide's Records.
The Purchaser shall have access upon reasonable notice to Countrywide, during
regular business hours or at such other times as might be reasonable under
applicable circumstances, to any and all of the books and records of Countrywide
that relate to the performance or observance by Countrywide of the terms,
covenants or conditions of this Agreement. Further, Countrywide hereby
authorizes the Purchaser, in connection with a sale of the Mortgage Loans, to
make available to prospective purchasers a Consolidated Statement of Operations
of Countrywide, or its parent company, prepared by or at the request of
Countrywide for the most recently completed three (3) fiscal years for which
such a statement is available as well as a Consolidated Statement of Condition
at the end of the last two (2) fiscal years covered by such Consolidated
Statement of Operations. Countrywide also agrees to make available to any
prospective purchaser, upon reasonable notice and during normal business hours,
a knowledgeable financial or accounting officer for the purpose of answering
questions respecting Countrywide's ability to perform under this Agreement. The
Purchaser agrees to reimburse Countrywide for any out-of-pocket costs incurred
by Countrywide in connection with its obligations under this Section 5.06.
Section 5.07 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, Countrywide shall not take any
action, cause the REMIC to take any action, or fail to take (or fail to cause to
be taken) any action that, under the REMIC Provisions, if taken or not taken, as
the case may be, could (i) endanger the status of the REMIC as a REMIC or (ii)
result in the imposition of a tax upon the REMIC (including but not limited to
the tax on "prohibited transactions" as defined in Section 860 (a) (2) of the
Code and the tax on "contributions" to a REMIC set forth in Section 860(d) of
the Code) unless Countrywide 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.
APPENDIX II
North Fork Agreements
Execution Version
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this "AAR
Agreement") dated as of March 20, 2007, among North Fork Bank, successor in
interest to GreenPoint Mortgage Funding, Inc. (the "Assignor"), Bank of America,
National Association (the "Assignee") and ABN AMRO Mortgage Group, Inc. (the
"Company"):
For and in consideration of the sum of one dollar ($1.00) and other
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, and of the mutual covenants herein contained, the parties hereto
hereby agree as follows:
1. Sale and Assignment. With respect to the mortgage loans listed on
Exhibit A hereto (the "Assigned Loans") purchased by the Assignor from the
Company, the Assignor hereby grants, transfers, assigns and sells to the
Assignee all right, title and interest of the Assignor, in, to and under (a) the
Assigned Loans, the related Mortgage Loan Documents and the Mortgage Files (as
defined in the Purchase Agreement) and (b) that certain Mortgage Loan Sale and
Servicing Agreement, dated as of December 1, 2002, by and between the Assignor
and the Company (as amended, the "Purchase Agreement"), as it relates to the
Assigned Loans and only the Assigned Loans and the Assignee hereby assumes all
of the Assignor's obligations and duties arising under the Purchase Agreement
from and after the date hereof, and the Company hereby acknowledges such sale,
assignment and assumption. The Assignor specifically reserves and does not
assign to the Assignee any right, title and interest in, to or under any
mortgage loans subject to the Purchase Agreement other than the Assigned Loans.
Notwithstanding the foregoing, it is understood that neither the Company nor
Assignor is released from liability to the other for any breaches of any
representations, warranties or covenants made by such party to the other in the
Purchase Agreement prior to the date hereof regardless of when such breaches are
discovered or made known. The Assigned Loans were previously purchased by the
Assignor pursuant to the Purchase Agreement and those certain Memoranda of Sale,
dated December 27, 2002, December 29, 2003 and December 29, 2003, by and between
Assignor and the Company. Capitalized terms used but not defined herein shall
have the respective meanings ascribed to them in the Purchase Agreement.
2. Payment. Simultaneously with the execution of this AAR Agreement and
upon completion of the other closing conditions set forth in the Purchase Price
and Terms Letter (the "PPTL"), dated as of January 12, 2007, by and between the
Assignee and the Assignor, the Assignee shall pay to the Assignor the purchase
price as calculated pursuant to the PPTL. The Assignee shall pay the purchase
price payable under the PPTL by wire transfer of immediately available funds to
the account specified by the Assignor. Upon payment of such purchase price, the
Assignee assumes all right, title and interest in and to the Assigned Loans and
the related Mortgage Loan Documents and Mortgage Files pursuant to the Purchase
Agreement. The Assignee shall be entitled to all scheduled payments due on the
Assigned Loans after March 1, 2007 (the "Assigned Loans Cut-off Date") and all
unscheduled payments or other proceeds or other recoveries on the Assigned Loans
received on and after the Assigned Loans Cut-off Date, as provided in the
Purchase Agreement. The Assignor, at its expense, shall have caused to be
delivered to the Assignee or its designee the Mortgage Loan Documents and the
portion of the Mortgage File for each Assigned Loan in the Assignor's or its
custodian's possession prior to the date hereof, excluding that portion under
the control of the Company. The Assignor and the Company acknowledge and agree
that the Assignee has designated U.S. Bank National Association (the
"Custodian") as its custodian of the Mortgage Loan Documents and the Mortgage
Files pursuant to a Custodial Agreement between the Assignee and the Custodian.
3. Representations. Warranties and Covenants of the Assignor. The Assignor
warrants and represents to, and covenants with, the Assignee that:
(a) The Assignor has full power and authority to execute, deliver and
perform its obligations under this AAR Agreement, and to consummate the
transactions set forth herein. The consummation of the transactions contemplated
by this AAR Agreement is in the ordinary course of the Assignor's business and
will not conflict with, or result in a breach of any of the terms, conditions or
provisions of the Assignor's organizational documents or by-laws or any legal
restriction, or any material agreement or instrument to which the Assignor is
now a party or by which it is bound, or result in the violation of any law,
rule, regulation, order, judgment or decree to which the Assignor or its
property is subject. The execution, delivery and performance by the Assignor of
this AAR Agreement and the consummation by it of the transactions contemplated
hereby, have been duly authorized by all necessary action on the part of the
Assignor. This AAR Agreement has been duly executed and delivered by the
Assignor and, upon the due authorization, execution and delivery by the Assignee
and the Company, will constitute the valid and legally binding obligation of the
Assignor enforceable against the Assignor in accordance with its terms except as
enforceability may be limited by bankruptcy, reorganization, insolvency,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally, and by general principles of equity regardless of
whether enforceability is considered in a proceeding in equity or at law. The
execution, delivery and performance by the Assignor of this AAR Agreement and
the consummation of the transactions contemplated hereby 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. There are no actions, suits or
proceedings pending or, to the knowledge of the Assignor, threatened, before or
by any court, administrative agency, arbitrator or governmental body (i) with
respect to any of the transactions contemplated by this AAR Agreement or (ii)
with respect to any other matter that in the judgment of the Assignor will be
determined adversely to the Assignor and, if determined adversely to the
Assignor, will materially and adversely affect its ability to perform its
obligations under this AAR Agreement;
(b) The Assignor is the lawful owner of the Assigned Loans with the full
right to transfer the Assigned Loans and all of its interests, rights and
obligations under the Purchase Agreement free from any and all encumbrances,
liens, pledges, participation interests, claims or security interests of any
nature encumbering the Assigned Loans. Except for the sale to the Assignee, the
Assignor has not assigned or pledged any Mortgage Note related to any Assigned
Loan or the related Mortgage or any interest or participation therein;
(c) The Assignor has not satisfied, canceled, or subordinated in whole or
in part, or rescinded the Mortgage related to any Assigned Loan, and the
Assignor has not released the Mortgaged Property from the lien of the Mortgage
related to any Assigned Loan, in whole or in part, nor has the Assignor executed
an instrument that would effect any such release, cancellation, subordination,
or rescission;
(d) The Assignor has not taken any action that would serve to impair or
encumber the Assignor's ownership interest in the Assigned Loans since the
applicable date of the original sale to Assignor (each, an "Original Closing
Date");
(e) The Assignor has not received notice of, and has no knowledge of, any
offsets, counterclaims or other defenses available to the Company with respect
to the Purchase Agreement or the Assigned Loans;
2
(f) The Assignor has not waived or agreed to any waiver under, or agreed to
any amendment or other modification of, the Purchase Agreement, including
without limitation the transfer of the servicing obligations. The Assignor has
no knowledge of, and has not received notice of, any waivers under or amendments
or other modifications of, or assignments of rights or obligations under, or
defaults under, the Purchase Agreement;
(g) Neither the Assignor nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of the Assigned Loans, any
interest in the Assigned Loans or any other similar security to, or solicited
any offer to buy or accept a transfer, pledge or other disposition of the
Assigned Loans, any interest in the Assigned Loans or any other similar security
from, or otherwise approached or negotiated with respect to the Assigned Loans,
any interest in the Assigned 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 Assigned Loans under the Securities Act of
1933, as amended (the "Securities Act") or which would render the disposition of
the Assigned Loans a violation of Section 5 of the Securities Act or require
registration pursuant thereto;
(h) No statement, tape, diskette, form, report or other document prepared
by, or on behalf of, the Assignor in connection with the transactions
contemplated hereby, contains or will contain any statement that is or will be
inaccurate or misleading in any material respect;
(i) With respect to the Assigned Loans, the representations and warranties
contained in Section 6.01 of the Purchase Agreement, to the extent they relate
to matters arising on or after the applicable Original Closing Date, are true
and correct as of the date of this AAR Agreement. For purposes of making the
representations and warranties contemplated in the foregoing sentence, each
reference in Section 6.01 of the Purchase Agreement (i) to the "Cut-off Date"
shall he deemed to be a reference to the Assigned Loans Cut-off Date, (ii) to
the "Mortgage Loan Schedule" shall be deemed to be a reference to Exhibit A
hereto and any other schedules of the Assigned Loans, provided in writing or
electronically, providing any data with respect to the Assigned Loans of the
type described in the definition of "Mortgage Loan Schedule" provided in the
Purchase Agreement (other than any schedules that were updated by the Assignor
prior to the date of this AAR Agreement), (iii) to the "Closing Date" shall be
deemed to be a reference to the date of this AAR Agreement and (iv) to the
"Seller's knowledge" shall be deemed to be a reference to the Assignor's
knowledge. For purposes of clarification, the Assignor shall not be deemed to
have breached or violated any representation or warranty contemplated in this
paragraph in the event that such representation or warranty was not true or
correct as of the Original Closing Date (an "Original Breach") unless such
Original Breach was cured prior to the date hereof; and
(j) With respect to the Assigned Loans, the matters set forth in Schedule I
attached hereto are true and correct as of the date of this AAR Agreement.
It is understood and agreed that the representations and warranties set
forth in this Section 3 shall survive delivery of the respective Assigned Loans
to the Assignee or its designee and shall inure to the benefit of the Assignee
and its assigns notwithstanding any restrictive or qualified endorsement or
assignment. It is understood and agreed that the Assignor shall be deemed not to
have made the representations and warranties in this Section 3 with respect to,
and to the extent of, representations and warranties made as to the matters
covered in this Section 3 by the Company in the Purchase Agreement. It is
further understood and agreed that the Assignor has made no representations or
warranties to the Assignee other than those contained herein, and no other
affiliate of the Assignor has made any representations or warranties of any kind
to the Assignee.
3
4. Repurchase of Assigned Loans. The Assignor and the Assignee understand
and agree that:
(a) Upon the discovery by the Assignor or the Assignee and its assigns of a
breach of any representation, warranty, or covenant under this AAR Agreement,
the party discovering such breach shall give prompt written notice to the other
parties to this AAR Agreement. Upon discovery or notice of any breach by the
Assignor of any representation, warranty, or covenant under this AAR Agreement
that materially and adversely affects the value of any Assigned 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 Assigned 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 Assignor cure such breach and, if the Assignor
does not cure such breach in all material respects within sixty (60) days from
the date on which it is notified of the breach, the Assignor shall, unless
notified by the Assignee, repurchase the Assigned Loan no later than
seventy-five (75) days from the date on which it is notified of the breach in
the same manner set forth in Section 6.03 of the Purchase Agreement. The
repurchase price (the "Repurchase Price") for a repurchase by Assignor shall be
calculated by (i) multiplying the percentage used in calculating the purchase
price for the applicable Assigned Loan pursuant to the PPTL by an amount equal
to the then outstanding principal balance of such Assigned Loan as of the date
of such repurchase, plus (ii) accrued interest on such Assigned Loan from the
date on which interest had last been paid through the last day of the month in
which such repurchase takes place, plus (iii) the amount of any outstanding
advances owed to the Servicer, plus (iv) all reasonable costs and expenses
incurred by the Assignee arising out of or based upon such breach, including,
without limitation, reasonable costs and expenses incurred in the enforcement of
the Assignor's repurchase obligation hereunder. Any repurchase of an Assigned
Loan or Loans pursuant to the foregoing provisions of this Section 4 shall be
accomplished by wire transfer of the amount of the Repurchase Price to an
account designated by the Assignee. In addition to such repurchase or
substitution obligation, the Assignor shall indemnify the Assignee 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 based on or grounded upon, or resulting from a breach of a
representation or warranty under this AAR Agreement or a violation of any other
provision hereof.
(b) In the event the Company has breached a representation or warranty
under the Purchase Agreement or this AAR Agreement that is substantially
identical to a representation or warranty by the Assignor under this AAR
Agreement, the Assignee shall first proceed against the Company under the
Purchase Agreement. In the event that any Assigned Loan is repurchased by the
Company pursuant to this Section, the Assignor shall promptly remit, upon
written notice from the Assignee, to the Assignee an amount equal to the amount
by which the Repurchase Price payable under Section 4(a) hereof exceeds the
amount payable by the Company under the Purchase Agreement upon such repurchase.
If the Company does not, within sixty (60) days after notification of the
breach, cure such breach or repurchase the Assigned Loan in the same manner as
set forth in Section 6.03 of the Purchase Agreement, the Assignee shall be
entitled to enforce the obligations of the Assignor hereunder to cure such
breach or to purchase the Assigned Loan from the Assignee, and/or to indemnify
Assignee, except to the extent such breach arose prior to the applicable
Original Closing Date. In such event, the Assignor shall succeed to the rights
of the Assignee to enforce the obligations of the Company to cure such breach or
repurchase such Assigned Loan under the terms of the Purchase Agreement with
respect to such Assigned Loan. Upon repurchase of an Assigned Loan by the
Assignor or the Company pursuant to this Section 4, the Assignee shall cause the
related Mortgage Loan Documents and Mortgage File previously delivered to the
Assignee to be returned to the repurchasing party or its designee at the
direction of such repurchasing party no later than three (3) Business Days after
such repurchase.
4
(c) Except as specifically set forth herein, the Assignee shall have no
responsibility to enforce any provision of the Purchase Agreement, to oversee
compliance thereof, or to take notice of any breach or default thereof.
(d) The obligations to the Assignee in this Section 4 shall survive any
sale or assignment of the Assigned Loans by the Assignee to any third party and
shall be independently enforceable by the Assignee.
5. Representations. Warranties and Covenants of the Assignee. The Assignee
warrants and represents to, and covenants with, the Assignor and the Company
that:
(a) The Assignee has full power and authority to execute, deliver and
perform its obligations under this AAR Agreement, and to consummate the
transactions set forth herein. The consummation of the transactions contemplated
by this AAR Agreement is in the ordinary course of the Assignee's business and
will not conflict with, or result in a breach of, any of the terms, conditions
or provisions of the Assignee's charter or by-laws or any legal restriction, or
any material agreement or instrument to which the Assignee is now a party or by
which it is bound, or result in the violation of any law, rule, regulation,
order, judgment or decree to which the Assignee or its property is subject. The
execution, delivery and performance by the Assignee of this AAR Agreement and
the consummation by it of the transactions contemplated hereby, have been duly
authorized by all necessary action on the part of the Assignee. This AAR
Agreement has been duly executed and delivered by the Assignee and, upon the due
authorization, execution and delivery by the Company and the Assignor, will
constitute the valid and legally binding obligation of the Assignee enforceable
against the Assignee in accordance with its terms except as enforceability may
be limited by bankruptcy, reorganization, insolvency, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights generally,
and by general principles of equity regardless of whether enforceability is
considered in a proceeding in equity or at law. The execution, delivery and
performance by the Assignee of this AAR Agreement and the consummation of the
transactions contemplated hereby 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.
There are no actions, suits or proceedings pending or, to the knowledge of the
Assignee, threatened, before or by any court, administrative agency, arbitrator
or governmental body (i) with respect to any of the transactions contemplated by
this AAR Agreement or (ii) with respect to any other matter that in the judgment
of the Assignee will be determined adversely to the Assignee and, if determined
adversely to the Assignee, will materially and adversely affect its ability to
perform its obligations under this AAR Agreement;
(b) The Assignee agrees to be bound, as Purchaser, by all of the terms,
covenants and conditions of the Purchase Agreement solely with respect to the
Assigned Loans, and from and after the date hereof, the Assignee assumes for the
benefit of each of the Company and the Assignor all of the Assignor's
obligations as purchaser or owner thereunder solely with respect to the Assigned
Loans;
(c) The Assignee has been furnished with all information regarding the
Assigned Loans that it has requested from the Assignor or the Company; and
(d) The Assignee's address for purposes of all notices and correspondence
related to the Assigned Loans and the Purchase Agreement is:
Bank of America, National Association
Hearst Tower
NC 1-027-21-04
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Managing Director
5
The Assignee's wire transfer instructions for purposes of all remittances
and payments related to the Assigned Loans and the Purchase Agreement is:
Bank Name: Bank of America, Dallas TX
Account #: 004770451666
Account Name: BAMCC/NMCC
ABA#: ▇▇▇▇▇▇▇▇▇
Reference: NFB Trade (ABN AMRO Loans)
Attn: ▇▇▇▇ ▇▇▇▇▇▇
6. Representations and Warranties of the Company. The Company warrants and
represents to, and covenants with, the Assignee that:
(a) The representations and warranties contained in Section 6.02 of the
Purchase Agreement are deemed to be made as of the date of this AAR Agreement,
and all such representations and warranties are true and correct as of the date
of this AAR Agreement; the representations and warranties contained in Section
6.01 of the Purchase Agreement were true and correct as of the related Original
Closing Date;
(b) The Company has serviced the Assigned Loans in accordance with the
terms of the Purchase Agreement, provided accurate statements and reports
required thereunder and otherwise complied with all covenants and obligations
thereunder, in each case, in all material respects;
(c) No offsets, counterclaims or other defenses are available to it with
respect to the Purchase Agreement or the Assigned Loans;
(d) It has not waived or agreed to any waiver under, or agreed to any
amendment or other modification of, the Purchase Agreement or the Assigned
Loans. It has no knowledge of, and has not received notice of, any waivers under
or amendments or other modifications of, or assignments of rights or obligations
under or defaults under, the Purchase Agreement or the Assigned Loans;
(e) Since the Original Closing Date, neither it nor anyone acting on its
behalf has offered, transferred, pledged, sold or otherwise disposed of the
Assigned Loans, any interest in the Assigned Loans or any other similar security
to, or solicited any offer to buy or accept a transfer, pledge or other
disposition of the Assigned Loans, any interest in the Assigned Loans or any
other similar security from, or otherwise approached or negotiated with respect
to the Assigned Loans, any interest in the Assigned Loans or any other similar
security with, any person in any manner, or made by general solicitation by
means of general advertising or in any other manner, or taken any other action
that would constitute a distribution of the Assigned Loans under the 1933 Act or
that would render the disposition of the Assigned Loans a violation of Section 5
of the 1933 Act or require registration pursuant thereto;
(f) The Company has taken no action, or omitted to take any required action
the omission of, which would have the effect of impairing any mortgage insurance
or guarantee on the Assigned Loans; and
6
(g) This AAR Agreement has been duly executed and delivered by the Company
and, upon the due authorization, execution and delivery by the Assignee and the
Assignor, will constitute the valid and legally binding obligation of the
Company enforceable against the Company in accordance with its terms except as
enforceability may be limited by bankruptcy, reorganization, insolvency,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally, and by general principles of equity regardless of
whether enforceability is considered in a proceeding in equity or at law. The
execution, delivery and performance by the Company of this AAR Agreement 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.
7. Accuracy of the Purchase Agreement. The Company and the Assignor
represent and warrant to the Assignee that (i) attached hereto as Exhibit B is a
true, accurate and complete copy of the Purchase Agreement and all amendments
and modifications thereto with respect to the Assigned Loans, if any, (ii) the
Purchase Agreement is in full force and effect on the date hereof, (iii) the
Purchase Agreement has not been amended or modified in any respect with respect
to the Assigned Loans, except as set forth in this AAR Agreement, and (iv) no
notice of termination has been given to the Company under the Purchase
Agreement.
8. No Solicitation. The Assignor shall not take any action to solicit the
refinancing of any Assigned Loan or any Mortgagor of any Assigned Loan. It is
understood and agreed that none of (i) the solicitations or related activities
which the Company is permitted to conduct under the applicable Agreement, (ii)
promotions undertaken by the Assignor or its agents or affiliates which are
directed to the general public at large, including, without limitation, mass
mailings, newspaper, radio, television advertisements, or (iii) servicing the
refinancing needs of a Mortgagor who, without solicitation, contacts the
Assignor or its agents or affiliates in connection with the refinance of such
Mortgage or Assigned Loan, shall constitute solicitation under this Section.
9. Master Servicer. The Company hereby acknowledges that a master servicer
may be appointed with respect to the Assigned Loans and such master servicer
shall have the right to enforce all obligations of the Company, as they relate
to the Assigned Loans, under the Purchase Agreement.
10. Recognition of Assignee; Reconstitution of Servicing; Regulation AB.
(a) From and after the date of this AAR Agreement, the Company shall note
the transfer of the Assigned Loans as of the Assigned Loans Cut-off Date to the
Assignee in its books and records, the Company shall recognize the Assignee as
the owner of the Assigned Loans. Notwithstanding anything to the contrary in the
Purchase Agreement, however, the Company shall service the Assigned Loans for
the benefit of the Assignee pursuant to the terms of that certain Amended and
Restated Flow Mortgage Loan Sale and Servicing Agreement, dated as of June 1,
2006, by and between Assignee and the Company (as amended, the "Bank of America
Servicing Agreement"), only insofar as it relates to the servicing of "Mortgage
Loans" as defined therein, including but not limited those provisions related to
sales and reconstitutions of mortgage loans, and all provisions related to
Regulation AB compliance, including servicer-- and originator-- related
provisions, which such terms are incorporated herein by reference. It is the
intention of the Assignor, the Company and the Assignee that the Bank of America
Servicing Agreement, to the extent provided in the preceding sentence, and the
Purchase Agreement in all other respects, shall be binding upon and inure to the
benefit of the Company and the Assignee and their respective successors and
assigns.
(b) Notwithstanding the terms of any Assigned Loan, in the event that any
such Assigned Loan 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, the Assignee hereby agrees to waive such requirement and the
Assignee hereby directs the Company and the Company hereby agrees to waive such
requirement.
7
11. Applicable Law. EXCEPT TO THE EXTENT PREEMPTED BY FEDERAL LAW, THIS AAR
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO THE CONFLICTS OF LAWS PROVISIONS OF NEW YORK (OTHER THAN SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW) OR THE CONFLICTS OF LAWS PROVISIONS OF ANY
OTHER JURISDICTION.
12. Expenses. Each party will pay any commissions it has incurred and the
reasonable fees of its attorneys in connection with the negotiations for,
documenting of and closing of the transactions contemplated by this AAR
Agreement.
13. No Waiver. No term or provision of this AAR Agreement may be waived or
modified unless such waiver or modification is in writing and signed by the
party against whom such waiver or modification is sought to be enforced.
14. Successors and Assigns. This AAR Agreement shall inure to the benefit
of the successors and assigns of the parties hereto. Any entity into which the
Assignor, the Assignee or the Company may be merged or consolidated shall,
without the requirement for any further writing, be deemed the Assignor, the
Assignee or the Company, respectively, hereunder.
15. Survival. This AAR Agreement shall survive the conveyances of the
Assigned Loans as contemplated in this AAR Agreement.
16. Execution in Counterparts. This AAR Agreement may be executed
simultaneously in any number of counterparts. Each counterpart shall be deemed
to be an original and all such counterparts shall constitute one and the same
instrument.
17. Conflicts. In the event that any provision of this AAR Agreement
conflicts with any provision of the Purchase Agreement with respect to the
Assigned Loans, the terms of this AAR Agreement shall control.
[SIGNATURES ON THE FOLLOWING PAGE]
8
IN WITNESS WHEREOF, the parties have caused this AAR Agreement be executed
by their duly authorized officers as of the date first above written.
BANK OF AMERICA, NATIONAL
NORTH FORK BANK ASSOCIATION
Assignor Assignee
By: ________________________________ By: ____________________
Name: ________________________________ Name: ____________________
Its: ________________________________ Its: ____________________
ABN AMRO MORTGAGE GROUP, INC.
Company
By: _______________________________
Name: _______________________________
Its: _______________________________
[Signature page for NFB-BOA AAR (ABN AMRO) March 2007 AAR]
EXHIBIT A
---------
ASSIGNED LOAN SCHEDULE
[Attached hereto]
Exhibit A-1
EXHIBIT B
---------
EXECUTION COPY OF MORTGAGE LOAN SALE AND SERVICING AGREEMENT,
DATED AS OF DECEMBER 1, 2005
[Attached hereto]
Exhibit B-1
SCHEDULE I
----------
ADDITIONAL MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
A. Payments Current
----------------
No payment under any Assigned Loan has been thirty (30) days or more delinquent
since March 20, 2006.
B. Bankruptcy
----------
No Mortgagor was a debtor in any state or federal bankruptcy or insolvency
proceeding at the time the Assigned Loan was originated.
C. No Fraud
--------
No fraud, error, omission, misrepresentation, negligence or similar occurrence
with respect to a Assigned Loan has taken place on the part of the originator
involved in the origination of the Assigned Loan or on the part of the Assignor
in connection with the sale of such Assigned Loan to the Assignee.
D. Location of Improvements; No Encroachments
------------------------------------------
Except as insured against by the title insurance policy, 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.
E. Servicemembers Civil Relief Act
-------------------------------
The Mortgagor has not notified the Company, and the Assignor has no knowledge of
any relief requested by or allowed to the Mortgagor under the Servicemembers
Civil Relief Act or any similar state law or local laws.
F. No Violation of Environmental Laws
----------------------------------
The Mortgaged Property is free from any and all toxic or hazardous substances
and there exists no violation of any local, state or federal environmental law,
rule or regulation. There is no pending action or proceeding directly involving
any Mortgaged Property in which compliance with any environmental law, rule or
regulation is an issue; and to the best of the Assignor's knowledge, 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.
Schedule I-1
G. Homeownership and Equity Protection Act; No High Cost Loans
-----------------------------------------------------------
No Assigned Loan is (a) a "high cost" loan under the Home Ownership and Equity
Protection Act of 1994 as amended, or (b) a "high cost," "threshold," "covered,"
"predatory," "abusive," or similarly defined loan, including refinance loans,
under any other applicable state, federal or local law (or a similarly
classified loan using different terminology under a law imposing heightened
regulatory scrutiny or additional legal liability for residential mortgage loans
having high interest rates, points and/or fees).
H. Compliance with Anti-Money Laundering Laws
------------------------------------------
To the best of the Assignor's knowledge upon reasonable due diligence, the
Company has complied with all anti-money laundering laws and regulations,
including without limitation the USA Patriot Act of 2001 (collectively, the
"Anti-Money Laundering Laws"), and the Company has established an anti-money
laundering compliance program in compliance with the Anti-Money Laundering Laws.
Schedule I-2
Execution Version
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this "AAR
Agreement") dated as of March 20, 2007, among North Fork Bank, successor in
interest to GreenPoint Mortgage Funding, Inc. (the "Assignor"), Bank of America,
National Association (the "Assignee") and Countrywide Home Loans, Inc. (the
"Company"):
For and in consideration of the sum of one dollar ($1.00) and other
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, and of the mutual covenants herein contained, the parties hereto
hereby agree as follows:
1. Sale and Assignment. With respect to the mortgage loans listed on
Exhibit A hereto (the "Assigned Loans") purchased by the Assignor from the
Company, the Assignor hereby grants, transfers, assigns and sells to the
Assignee all right, title and interest of the Assignor, in, to and under (a) the
Assigned Loans and the Collateral Files and (b) that certain Mortgage Loan
Purchase and Servicing Agreement, dated March 14, 2003, by and between Assignor
and the Company (as amended, the "Purchase Agreement"), as the Purchase
Agreement relates to the Assigned Loans and only the Assigned Loans and the
Assignee hereby assumes all of the Assignor's obligations and duties arising
under the Purchase Agreement from and after the date hereof, and the Company
hereby acknowledges such sale, assignment and assumption. The Assignor
specifically reserves and does not assign to the Assignee any right, title and
interest in, to or under any mortgage loans subject to the Purchase Agreement
other than the Assigned Loans. Notwithstanding the foregoing, it is understood
that neither the Company nor Assignor is released from liability to the other
for any breaches of any representations, warranties or covenants made by such
party to the other in the Purchase Agreement prior to the date hereof regardless
of when such breaches are discovered or made known. The Assigned Loans were
previously purchased by the Assignor pursuant to the Purchase Agreement and
those certain Purchase Confirmations, dated March 14, 2003, March 28, 2003,
April 30, 2003, May 30, 2003, December 23, 2003, February 20, 2004, February 25,
2005, March 31, 2005, April 27, 2005, and May 20, 2005, by and between the
Assignor and the Company. Capitalized terms used but not defined herein shall
have the respective meanings ascribed to them in the Purchase Agreement.
2. Payment. Simultaneously with the execution of this AAR Agreement and
upon completion of the other closing conditions set forth in the Purchase Price
and Terms Letter (the "PPTL"), dated as of January 12, 2007, by and between the
Assignee and the Assignor, the Assignee shall pay to the Assignor the purchase
price as calculated pursuant to the PPTL. The Assignee shall pay the purchase
price payable under the PPTL by wire transfer of immediately available funds to
the account specified by the Assignor. Upon payment of such purchase price, the
Assignee assumes all right, title and interest in and to the Assigned Loans and
the Collateral Files pursuant to the Purchase Agreement. The Assignee shall be
entitled to all scheduled payments due on the Assigned Loans after March 1, 2007
(the "Assigned Loans Cut-off Date") and all unscheduled payments or other
proceeds or other recoveries on the Assigned Loans received on and after the
Assigned Loans Cut-off Date, as provided in the Purchase Agreement. The
Assignor, at its expense, shall have caused to be delivered to the Assignee or
its designee the Collateral Files for each Assigned Loan in the Assignor's or
its custodian's possession prior to the date hereof, excluding that portion
under the control of the Company. The Assignor and the Company acknowledge and
agree that the Assignee has designated U.S. Bank National Association (the
"Custodian") as its custodian of the Collateral Files pursuant to a Custodial
Agreement between the Assignee and the Custodian.
3. Representations. Warranties and Covenants of the Assignor. The Assignor
warrants and represents to, and covenants with, the Assignee that:
(a) The Assignor has full power and authority to execute, deliver and
perform its obligations under this AAR Agreement, and to consummate the
transactions set forth herein. The consummation of the transactions contemplated
by this AAR Agreement is in the ordinary course of the Assignor's business and
will not conflict with, or result in a breach of any of the terms, conditions or
provisions of the Assignor's organizational documents or by-laws or any legal
restriction, or any material agreement or instrument to which the Assignor is
now a party or by which it is bound, or result in the violation of any law,
rule, regulation, order, judgment or decree to which the Assignor or its
property is subject. The execution, delivery and performance by the Assignor of
this AAR Agreement and the consummation by it of the transactions contemplated
hereby, have been duly authorized by all necessary action on the part of the
Assignor. This AAR Agreement has been duly executed and delivered by the
Assignor and, upon the due authorization, execution and delivery by the Assignee
and the Company, will constitute the valid and legally binding obligation of the
Assignor enforceable against the Assignor in accordance with its terms except as
enforceability may be limited by bankruptcy, reorganization, insolvency,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally, and by general principles of equity regardless of
whether enforceability is considered in a proceeding in equity or at law. The
execution, delivery and performance by the Assignor of this AAR Agreement and
the consummation of the transactions contemplated hereby 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. There are no actions, suits or
proceedings pending or, to the knowledge of the Assignor, threatened, before or
by any court, administrative agency, arbitrator or governmental body (i) with
respect to any of the transactions contemplated by this AAR Agreement or (ii)
with respect to any other matter that in the judgment of the Assignor will be
determined adversely to the Assignor and, if determined adversely to the
Assignor, will materially and adversely affect its ability to perform its
obligations under this AAR Agreement;
(b) The Assignor is the lawful owner of the Assigned Loans with the full
right to transfer the Assigned Loans and all of its interests, rights and
obligations under the Purchase Agreement free from any and all encumbrances,
liens, pledges, participation interests, claims or security interests of any
nature encumbering the Assigned Loans. Except for the sale to the Assignee, the
Assignor has not assigned or pledged any Mortgage Note related to any Assigned
Loan or the related Mortgage or any interest or participation therein;
(c) The Assignor has not satisfied, canceled, or subordinated in whole or
in part, or rescinded the Mortgage related to any Assigned Loan, and the
Assignor has not released the Mortgaged Property from the lien of the Mortgage
related to any Assigned Loan, in whole or in part, nor has the Assignor executed
an instrument that would effect any such release, cancellation, subordination,
or rescission;
(d) The Assignor has not taken any action that would serve to impair or
encumber the Assignor's ownership interest in the Assigned Loans since the
applicable date of the original sale to Assignor (each, an "Original Closing
Date");
(e) The Assignor has not received notice of, and has no knowledge of, any
offsets, counterclaims or other defenses available to the Company with respect
to the Purchase Agreement or the Assigned Loans;
2
(f) The Assignor has not waived or agreed to any waiver under, or agreed to
any amendment or other modification of, the Purchase Agreement, including
without limitation the transfer of the servicing obligations under the Purchase
Agreement. The Assignor has no knowledge of, and has not received notice of, any
waivers under or amendments or other modifications of, or assignments of rights
or obligations under, or defaults under, the Purchase Agreement;
(g) Neither the Assignor nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of the Assigned Loans, any
interest in the Assigned Loans or any other similar security to, or solicited
any offer to buy or accept a transfer, pledge or other disposition of the
Assigned Loans, any interest in the Assigned Loans or any other similar security
from, or otherwise approached or negotiated with respect to the Assigned Loans,
any interest in the Assigned 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 Assigned Loans under the Securities Act of
1933, as amended (the "Securities Act") or which would render the disposition of
the Assigned Loans a violation of Section 5 of the Securities Act or require
registration pursuant thereto;
(h) No statement, tape, diskette, form, report or other document prepared
by, or on behalf of, the Assignor in connection with the transactions
contemplated hereby, contains or will contain any statement that is or will be
inaccurate or misleading in any material respect;
(i) With respect to the Assigned Loans, the representations and warranties
contained in Section 3.02 of the Purchase Agreement, to the extent they relate
to matters arising on or after the applicable Original Closing Date, are true
and correct as of the date of this AAR Agreement. For purposes of making the
representations and warranties contemplated in the foregoing sentence, each
reference in Section 3.02 of the Purchase Agreement (i) to the "Cut-off Date"
shall he deemed to be a reference to the Assigned Loans Cut-off Date, (ii) to
the "Mortgage Loan Schedule" shall be deemed to be a reference to Exhibit A
hereto and any other schedules of the Assigned Loans, provided in writing or
electronically, providing any data with respect to the Assigned Loans of the
type described in the definition of "Mortgage Loan Schedule" provided in the
Purchase Agreement (other than any schedules that were updated by the Assignor
prior to the date of this AAR Agreement), (iii) to the "Closing Date" shall be
deemed to be a reference to the date of this AAR Agreement and (iv) to the
"Countrywide's knowledge" shall be deemed to be a reference to the Assignor's
knowledge. For purposes of clarification, the Assignor shall not be deemed to
have breached or violated any representation or warranty contemplated in this
paragraph in the event that such representation or warranty was not true or
correct as of the Original Closing Date (an "Original Breach") unless such
Original Breach was cured prior to the date hereof; and
(j) With respect to the Assigned Loans, the matters set forth in Schedule I
attached hereto are true and correct as of the date of this AAR Agreement.
It is understood and agreed that the representations and warranties set
forth in this Section 3 shall survive delivery of the respective Mortgage Loans
to the Assignee or its designee and shall inure to the benefit of the Assignee
and its assigns notwithstanding any restrictive or qualified endorsement or
assignment. It is understood and agreed that the Assignor shall be deemed not to
have made the representations and warranties in this Section 3 with respect to,
and to the extent of, representations and warranties made as to the matters
covered in this Section 3 by the Company in the Purchase Agreement. It is
further understood and agreed that the Assignor has made no representations or
warranties to the Assignee other than those contained herein, and no other
affiliate of the Assignor has made any representations or warranties of any kind
to the Assignee.
3
4. Repurchase of Assigned Loans. The Assignor and the Assignee understand
and agree that:
(a) Upon the discovery by the Assignor or the Assignee and its assigns of a
breach of any representation, warranty, or covenant under this AAR Agreement,
the party discovering such breach shall give prompt written notice to the other
parties to this AAR Agreement. Upon discovery or notice of any breach by the
Assignor of any representation, warranty, or covenant under this AAR Agreement
that materially and adversely affects the value of any Assigned 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 Assigned 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 Assignor cure such breach and, if the Assignor
does not cure such breach in all material respects within sixty (60) days from
the date on which it is notified of the breach, the Assignor shall, unless
notified by the Assignee, repurchase the Assigned Loan no later than
seventy-five (75) days from the date on which it is notified of the breach in
the same manner set forth in Section 3.03 of the Purchase Agreement. The
repurchase price (the "Repurchase Price") for a repurchase by Assignor shall be
calculated by (i) multiplying the percentage used in calculating the purchase
price for the applicable Assigned Loan pursuant to the PPTL by an amount equal
to the then outstanding principal balance of such Assigned Loan as of the date
of such repurchase, plus (ii) accrued interest on such Assigned Loan from the
date on which interest had last been paid through the last day of the month in
which such repurchase takes place, plus (iii) the amount of any outstanding
advances owed to the Servicer, plus (iv) all reasonable costs and expenses
incurred by the Assignee arising out of or based upon such breach, including,
without limitation, reasonable costs and expenses incurred in the enforcement of
the Assignor's repurchase obligation hereunder . Any repurchase of an Assigned
Loan or Loans pursuant to the foregoing provisions of this Section 4 shall be
accomplished by wire transfer of the amount of the Repurchase Price to an
account designated by the Assignee. In addition to such repurchase or
substitution obligation, the Assignor shall indemnify the Assignee 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 based on or grounded upon, or resulting from a breach of a
representation or warranty under this AAR Agreement or a violation of any other
provision hereof.
(b) In the event the Company has breached a representation or warranty
under the Purchase Agreement (as such was made on the related Original Closing
Date) or this AAR Agreement that is substantially identical to a representation
or warranty by the Assignor under this AAR Agreement, the Assignee shall first
proceed against the Company under the Purchase Agreement. In the event that any
Assigned Loan is repurchased by the Company pursuant to this Section, the
Assignor shall promptly remit, upon written notice from the Assignee, to the
Assignee an amount equal to the amount by which the Repurchase Price payable
under Section 4(a) hereof exceeds the amount payable by the Company under the
Purchase Agreement upon such repurchase. If the Company does not, within sixty
(60) days after notification of the breach, cure such breach or repurchase the
Assigned Loan in the same manner as set forth in Section 3.03 of the Purchase
Agreement, the Assignee shall be entitled to enforce the obligations of the
Assignor hereunder to cure such breach or to purchase the Assigned Loan from the
Assignee, and/or to indemnify Assignee, except to the extent such breach arose
prior to the applicable Original Closing Date. In such event, the Assignor shall
succeed to the rights of the Assignee to enforce the obligations of the Company
to cure such breach or repurchase such Assigned Loan under the terms of the
Purchase Agreement with respect to such Assigned Loan. Upon repurchase of an
Assigned Loan by the Assignor pursuant to this Section, the Assignee shall cause
the related Collateral File previously delivered to the Assignee to be returned
to the Assignor or its designee at the direction of the Assignor no later than
three (3) Business Days after such repurchase.
4
(c) Except as specifically set forth herein, the Assignee shall have no
responsibility to enforce any provision of the Purchase Agreement, to oversee
compliance thereof, or to take notice of any breach or default thereof.
(d) The obligations to the Assignee in this Section 4 shall survive any
sale or assignment of the Assigned Loans by the Assignee to any third party and
shall be independently enforceable by the Assignee.
5. Representations. Warranties and Covenants of the Assignee. The Assignee
warrants and represents to, and covenants with, the Assignor and the Company
that:
(a) The Assignee has full power and authority to execute, deliver and
perform its obligations under this AAR Agreement, and to consummate the
transactions set forth herein. The consummation of the transactions contemplated
by this AAR Agreement is in the ordinary course of the Assignee's business and
will not conflict with, or result in a breach of, any of the terms, conditions
or provisions of the Assignee's charter or by-laws or any legal restriction, or
any material agreement or instrument to which the Assignee is now a party or by
which it is bound, or result in the violation of any law, rule, regulation,
order, judgment or decree to which the Assignee or its property is subject. The
execution, delivery and performance by the Assignee of this AAR Agreement and
the consummation by it of the transactions contemplated hereby, have been duly
authorized by all necessary action on the part of the Assignee. This AAR
Agreement has been duly executed and delivered by the Assignee and, upon the due
authorization, execution and delivery by the Company and the Assignor, will
constitute the valid and legally binding obligation of the Assignee enforceable
against the Assignee in accordance with its terms except as enforceability may
be limited by bankruptcy, reorganization, insolvency, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights generally,
and by general principles of equity regardless of whether enforceability is
considered in a proceeding in equity or at law. The execution, delivery and
performance by the Assignee of this AAR Agreement and the consummation of the
transactions contemplated hereby 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.
There are no actions, suits or proceedings pending or, to the knowledge of the
Assignee, threatened, before or by any court, administrative agency, arbitrator
or governmental body (i) with respect to any of the transactions contemplated by
this AAR Agreement or (ii) with respect to any other matter that in the judgment
of the Assignee will be determined adversely to the Assignee and, if determined
adversely to the Assignee, will materially and adversely affect its ability to
perform its obligations under this AAR Agreement;
(b) The Assignee agrees to be bound, as Purchaser, by all of the terms,
covenants and conditions of the Purchase Agreement solely with respect to the
Assigned Loans, and from and after the date hereof, the Assignee assumes for the
benefit of each of the Company and the Assignor all of the Assignor's
obligations as purchaser or owner thereunder solely with respect to the Assigned
Loans;
(c) The Assignee has been furnished with all information regarding the
Assigned Loans that it has requested from the Assignor or the Company; and
(d) The Assignee's address for purposes of all notices and correspondence
related to the Assigned Loans and the Purchase Agreement is:
Bank of America, National Association
Hearst Tower
NC 1-027-21-04
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Managing Director
The Assignee's wire transfer instructions for purposes of all remittances
and payments related to the Assigned Loans and the Purchase Agreement is:
Bank Name: Bank of America, Dallas TX
Account #: 004770451666
Account Name: BAMCC/NMCC
ABA#: ▇▇▇▇▇▇▇▇▇
Reference: NFB Trade (Countrywide Loans)
Attn: ▇▇▇▇ ▇▇▇▇▇▇
6. Representations and Warranties of the Company. The Company warrants and
represents to, and covenants with, the Assignee that:
(a) The representations and warranties contained in Section 3.01 of the
Purchase Agreement are deemed to be made as of the date of this AAR Agreement,
and all such representations and warranties are true and correct as of the date
of this AAR Agreement; the representations and warranties contained in Section
3.02 of the Purchase Agreement were true and correct as of the related Original
Closing Date;
(b) The Company has serviced the Assigned Loans in accordance with the
terms of the Purchase Agreement in all material respects;
(c) To the best of the knowledge of the Company, no offsets, counterclaims
or other defenses are available to it with respect to the Purchase Agreement or
the Assigned Loans;
(d) It has not waived or agreed to any waiver under, or agreed to any
amendment or other modification of, the Purchase Agreement or, except as
permitted pursuant to the Purchase Agreement, the Assigned Loans. It has no
knowledge of, and has not received notice of, any waivers under or amendments or
other modifications of, or assignments of rights or obligations under or
defaults under, the Purchase Agreement or, except as permitted pursuant to the
Purchase Agreement, the Assigned Loans; and
(e) This AAR Agreement has been duly executed and delivered by the Company
and, upon the due authorization, execution and delivery by the Assignee and the
Assignor, will constitute the valid and legally binding obligation of the
Company enforceable against the Company in accordance with its terms except as
enforceability may be limited by bankruptcy, reorganization, insolvency,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally, and by general principles of equity regardless of
whether enforceability is considered in a proceeding in equity or at law. The
execution, delivery and performance by the Company of this AAR Agreement 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.
7. Accuracy of the Purchase Agreement. The Company and the Assignor
represent and warrant to the Assignee that (i) attached hereto as Exhibit B is a
true, accurate and complete copy of the Purchase Agreement and all amendments
and modifications thereto with respect to the Assigned Loans, if any, (ii) the
Purchase Agreement is in full force and effect on the date hereof, (iii) the
6
Purchase Agreement has not been amended or modified in any respect with respect
to the Assigned Loans, except as set forth in this AAR Agreement, and (iv) no
notice of termination has been given to the Company under the Purchase
Agreement.
8. No Solicitation. The Assignor shall not take any action to solicit the
refinancing of any Assigned Loan or any Mortgagor of any Assigned Loan. It is
understood and agreed that none of (i) the solicitations or related activities
which the Company is permitted to conduct under the applicable Agreement, (ii)
promotions undertaken by the Assignor or its agents or affiliates which are
directed to the general public at large, including, without limitation, mass
mailings, newspaper, radio, television advertisements, or (iii) servicing the
refinancing needs of a Mortgagor who, without solicitation, contacts the
Assignor or its agents or affiliates in connection with the refinance of such
Mortgage or Assigned Loan, shall constitute solicitation under this Section.
9. Master Servicer. The Company hereby acknowledges that a master servicer
may be appointed with respect to the Assigned Loans and such master servicer
shall have the right to enforce all obligations of the Company, as they relate
to the Assigned Loans, under the Purchase Agreement.
10. Recognition of Assignee; Reconstitution of Servicing; Regulation AB.
(a) From and after the date of this AAR Agreement, the Company shall note
the transfer of the Assigned Loans as of the Assigned Loans Cut-off Date to the
Assignee in its books and records, the Company shall recognize the Assignee as
the owner of the Assigned Loans. Notwithstanding anything to the contrary in the
Purchase Agreement, however, the Company shall service the Assigned Loans for
the benefit of the Assignee pursuant to the terms of that certain Master
Mortgage Loan Purchase and Servicing Agreement, dated as of April 1, 2003, by
and between Assignee and the Company (as amended, the "Bank of America Servicing
Agreement"), only insofar as it relates to the servicing of "Mortgage Loans" as
defined therein, including but not limited those provisions related to sales and
reconstitutions of mortgage loans, and all provisions related to Regulation AB
compliance, including servicer-- and originator-- related provisions, which such
terms are incorporated herein by reference. It is the intention of the Assignor,
the Company and the Assignee that the Bank of America Servicing Agreement, to
the extent provided in the preceding sentence, and the Purchase Agreement in all
other respects, shall be binding upon and inure to the benefit of the Company
and the Assignee and their respective successors and assigns.
(b) Notwithstanding the terms of any Assigned Loan, in the event that any
such Assigned Loan 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, the Assignee hereby directs the Company and the Company hereby
agrees to waive such requirement.
11. Applicable Law. EXCEPT TO THE EXTENT PREEMPTED BY FEDERAL LAW, THIS AAR
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO THE CONFLICTS OF LAWS PROVISIONS OF NEW YORK (OTHER THAN SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW) OR THE CONFLICTS OF LAWS PROVISIONS OF ANY
OTHER JURISDICTION.
12. Expenses. Each party will pay any commissions it has incurred and the
reasonable fees of its attorneys in connection with the negotiations for,
documenting of and closing of the transactions contemplated by this AAR
Agreement.
7
13. No Waiver. No term or provision of this AAR Agreement may be waived or
modified unless such waiver or modification is in writing and signed by the
party against whom such waiver or modification is sought to be enforced.
14. Successors and Assigns. This AAR Agreement shall inure to the benefit
of the successors and assigns of the parties hereto. Any entity into which the
Assignor, the Assignee or the Company may be merged or consolidated shall,
without the requirement for any further writing, be deemed the Assignor, the
Assignee or the Company, respectively, hereunder.
15. Survival. This AAR Agreement shall survive the conveyances of the
Assigned Loans as contemplated in this AAR Agreement.
16. Execution in Counterparts. This AAR Agreement may be executed
simultaneously in any number of counterparts. Each counterpart shall be deemed
to be an original and all such counterparts shall constitute one and the same
instrument.
17. Conflicts. In the event that any provision of this AAR Agreement
conflicts with any provision of the Purchase Agreement with respect to the
Assigned Loans, the terms of this AAR Agreement shall control.
[SIGNATURES ON THE FOLLOWING PAGE]
8
IN WITNESS WHEREOF, the parties have caused this AAR Agreement be executed
by their duly authorized officers as of the date first above written.
BANK OF AMERICA, NATIONAL
NORTH FORK BANK ASSOCIATION
Assignor Assignee
By: ____________________________ By: ______________________
Name: ____________________________ Name: ______________________
Its: ____________________________ Its: ______________________
COUNTRYWIDE HOME LOANS, INC.
Company
By: ____________________________
Name: ____________________________
Its: ____________________________
[Signature page for NFB-BOA AAR (Countrywide) March 2007 AAR]
EXHIBIT A
---------
ASSIGNED LOAN SCHEDULE
[Attached hereto]
Exhibit A-1
EXHIBIT B
---------
EXECUTION COPY OF THE PURCHASE AGREEMENT
[Attached hereto]
Exhibit B-1
SCHEDULE I
----------
ADDITIONAL MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
A. Fraud
-----
No fraud, error, omission, misrepresentation, negligence or similar occurrence
with respect to a Assigned Loan has taken place on the part of the originator
or, to the knowledge of the Assignor, the Mortgagor, any appraiser, any builder
or any developer, or any other party involved in the origination of the Assigned
Loan or on the part of the Assignor in connection with the sale of such Assigned
Loan, and there are no circumstances existing with respect to the Assigned Loan
which would permit the primary mortgage guaranty insurer to deny coverage under
any insurance policy;
B. Location and Type of Mortgaged Property
---------------------------------------
The Mortgaged Property is located in the state identified in the Mortgage Loan
Schedule and consists of a contiguous parcel of real property with a detached
single family residence erected thereon, or a two- to four-family dwelling, or
an individual condominium unit in a condominium project, or an individual unit
in a planned unit development or a townhouse or, in the case of a Assigned Loan
secured by cooperative shares, leases or occupancy agreements; provided,
however, that any condominium project or planned unit development shall conform
with the Company's underwriting guidelines regarding such dwellings.
C. Origination/Doing Business
--------------------------
The Assigned Loan was originated by a savings and loan association, a savings
bank, a commercial bank, a credit union, an insurance company, or similar
institution that 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 of the National Housing Act. All parties which
have had any interest in the Assigned Loan, whether as mortgagee, assignee,
pledgee or otherwise, are (or, during the period in which they held and disposed
of such interest, were) (1) in compliance with any and all applicable licensing
requirements of the laws of the state wherein the Mortgaged Property is located,
and (2) either (A) organized under the laws of such state, (B) qualified to do
business in such state, (C) federal savings and loan associations or national
banks having principal offices in such state, or (D) not doing business in such
state.
D. Location of Improvements; No Encroachments
------------------------------------------
Except as insured against by the title insurance policy, 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.
Schedule I-1
E. Customary Provisions
--------------------
There is no homestead or other exemption (other than under the Servicemembers
Civil Relief Act) 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.
F. Servicemembers Civil Relief Act
-------------------------------
The Mortgagor has not notified the Company, and the Assignor has no knowledge of
any relief requested by or allowed to the Mortgagor under the Servicemembers
Civil Relief Act or any similar state law or local laws.
G. Underwriting
------------
Each Assigned Loan was underwritten in accordance with the underwriting
guidelines of the Company, which underwriting guidelines satisfy the standards
of prudent mortgage lenders of the same type of mortgage loans as the Assigned
Loans in the secondary market.
H. No Bankruptcy
-------------
No Mortgagor was a debtor in any state or federal bankruptcy or insolvency
proceeding at the time the Assigned Loan was originated.
I. Delivery of Mortgage Files
--------------------------
The Mortgage Loan Documents for the related Assigned Loans have been or will be
delivered to the Custodian.
J. No Violation of Environmental Laws
----------------------------------
The Mortgaged Property is free from any and all toxic or hazardous substances
and there exists no violation of any local, state or federal environmental law,
rule or regulation. There is no pending action or proceeding directly involving
any Mortgaged in which compliance with any environmental law, rule or regulation
is an issue; and to the best of the Assignor's knowledge, 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.
K. Homeownership and Equity Protection Act; No High Cost Loans
-----------------------------------------------------------
No Assigned Loan is (a) a "high cost" loan under the Home Ownership and Equity
Protection Act of 1994 as amended, or (b) a "high cost," "threshold," "covered,"
"predatory," "abusive," or similarly defined loan, including refinance loans,
under any other applicable state, federal or local law (or a similarly
classified loan using different terminology under a law imposing heightened
regulatory scrutiny or additional legal liability for residential mortgage loans
having high interest rates, points and/or fees).
Schedule I-2
L. Compliance with Anti-Money Laundering Laws
------------------------------------------
To the best of the Assignor's knowledge upon reasonable due diligence, the
Company and the Assignor have complied with all anti-money laundering laws and
regulations, including without limitation the USA Patriot Act of 2001
(collectively, the "Anti-Money Laundering Laws"), and the Company and the
Assignor have established an anti-money laundering compliance program in
compliance with the Anti-Money Laundering Laws.
Schedule I-3