MORTGAGE LOAN SALE AND SERVICING AGREEMENT between US BANK, N.A., as Seller and as Servicer and MORGAN STANLEY MORTGAGE CAPITAL HOLDINGS LLC, as Purchaser Dated as of June 1, 2007 Conventional, Fixed and Adjustable Rate, Residential Mortgage Loans
Exhibit
99.14b
between
US
BANK,
N.A.,
as
Seller
and as Servicer
and
▇▇▇▇▇▇
▇▇▇▇▇▇▇ MORTGAGE CAPITAL HOLDINGS LLC,
as
Purchaser
Dated
as
of June 1, 2007
Conventional,
Fixed
and
Adjustable Rate,
Residential
Mortgage Loans
TABLE
OF
CONTENTS
Page
|
SECTION
1.
|
DEFINITIONS
|
1
|
|
SECTION
2.
|
PURCHASE
AND CONVEYANCE
|
19
|
|
SECTION
3.
|
MORTGAGE
LOAN SCHEDULE
|
19
|
|
SECTION
4.
|
PURCHASE
PRICE
|
20
|
|
SECTION
5.
|
EXAMINATION
OF MORTGAGE FILES
|
20
|
|
SECTION
6.
|
DELIVERY
OF MORTGAGE LOAN DOCUMENTS.
|
20
|
|
Subsection
6.01
|
Possession
of Mortgage Files
|
20
|
|
Subsection
6.02
|
Books
and Records
|
21
|
|
Subsection
6.03
|
Delivery
of Mortgage Loan Documents
|
21
|
|
Subsection
6.04
|
MERS
Designated Loans
|
22
|
|
SECTION
7.
|
REPRESENTATIONS,
WARRANTIES AND COVENANTS; REMEDIES FOR BREACH.
|
23
|
|
Subsection
7.01
|
Representations
and Warranties Regarding Individual Mortgage Loans.
|
23
|
|
Subsection
7.02
|
Seller
Representations
|
37
|
|
Subsection
7.03
|
Remedies
for Breach of Representations and Warranties.
|
40
|
|
Subsection
7.04
|
Repurchase
of Mortgage Loans with First Payment Defaults
|
43
|
|
Subsection
7.05
|
Premium
Recapture
|
43
|
|
SECTION
8.
|
CLOSING
|
43
|
|
SECTION
9.
|
CLOSING
DOCUMENTS
|
43
|
|
SECTION
10.
|
COSTS
|
45
|
|
SECTION
11.
|
ADMINISTRATION
AND SERVICING OF THE MORTGAGE LOANS.
|
45
|
|
Subsection
11.01
|
Servicer
to Act as Servicer
|
45
|
|
Subsection
11.02
|
Liquidation
of Mortgage Loans
|
47
|
|
Subsection
11.03
|
Collection
of Mortgage Loan Payments
|
47
|
-i-
|
Subsection
11.04
|
Establishment
of Custodial Account; Deposits in Custodial Account.
|
47
|
|
Subsection
11.05
|
Withdrawals
From the Custodial Account
|
49
|
|
Subsection
11.06
|
Establishment
of Escrow Account; Deposits in Escrow Account.
|
50
|
|
Subsection
11.07
|
Withdrawals
From Escrow Account
|
50
|
|
Subsection
11.08
|
Payment
of Taxes, Insurance and Other Charges; Collections
Thereunder
|
51
|
|
Subsection
11.09
|
Transfer
of Accounts
|
52
|
|
Subsection
11.10
|
Maintenance
of Hazard Insurance
|
52
|
|
Subsection
11.11
|
Fidelity
Bond; Errors and Omissions Insurance
|
53
|
|
Subsection
11.12
|
Title,
Management and Disposition of REO Property
|
53
|
|
Subsection
11.13
|
Servicing
Compensation
|
54
|
|
Subsection
11.14
|
Distributions
|
54
|
|
Subsection
11.15
|
Statements
to the Purchaser
|
55
|
|
Subsection
11.16
|
Advances
by the Servicer
|
56
|
|
Subsection
11.17
|
Assumption
Agreements
|
56
|
|
Subsection
11.18
|
Satisfaction
of Mortgages and Release of Mortgage Files
|
57
|
|
Subsection
11.19
|
Annual
Statement as to Compliance
|
57
|
|
Subsection
11.20
|
Annual
Independent Public Accountants’ Servicing Report or
Attestation.
|
57
|
|
Subsection
11.21
|
Servicer
Shall Provide Access and Information as Reasonably
Required.
|
58
|
|
Subsection
11.22
|
Transfer
of Servicing
|
58
|
|
Subsection
11.23
|
Notification
of Maturity Date
|
60
|
|
Subsection
11.24
|
Notification
of Adjustments
|
60
|
|
SECTION
12.
|
THE
SERVICER.
|
61
|
|
Subsection
12.01
|
Indemnification;
Third Party Claims
|
61
|
|
Subsection
12.02
|
Merger
or Consolidation of the Servicer
|
62
|
|
Subsection
12.03
|
Limitation
on Liability of the Servicer and Others
|
63
|
|
Subsection
12.04
|
Seller
and Servicer Not to Resign
|
63
|
|
SECTION
13.
|
DEFAULT.
|
63
|
|
Subsection
13.01
|
Events
of Default
|
63
|
|
Subsection
13.02
|
Waiver
of Defaults
|
65
|
|
SECTION
14.
|
TERMINATION
|
65
|
|
Subsection
14.01
|
Termination
|
65
|
|
Subsection
14.02
|
Termination
of the Servicer Without Cause
|
65
|
|
Subsection
14.03
|
Successors
to the Servicer
|
65
|
|
SECTION
15.
|
COOPERATION
OF SELLER WITH A RECONSTITUTION
|
66
|
-ii-
|
SECTION
16.
|
NOTICES
|
68
|
|
SECTION
17.
|
SEVERABILITY
CLAUSE
|
70
|
|
SECTION
18.
|
NO
PARTNERSHIP
|
70
|
|
SECTION
19.
|
COUNTERPARTS
|
70
|
|
SECTION
20.
|
GOVERNING
LAW JURISDICTION; CONSENT TO SERVICE OF PROCESS
|
70
|
|
SECTION
21.
|
MANDATORY
DELIVERY; GRANT OF SECURITY INTEREST
|
71
|
|
SECTION
22.
|
INTENTION
OF THE PARTIES
|
71
|
|
|
||
|
SECTION
23.
|
SUCCESSORS
AND ASSIGNS
|
72
|
|
SECTION
24.
|
WAIVERS
|
72
|
|
SECTION
25.
|
EXHIBITS
|
72
|
|
SECTION
26.
|
GENERAL
INTERPRETIVE PRINCIPLES
|
72
|
|
SECTION
27.
|
REPRODUCTION
OF DOCUMENTS
|
73
|
|
SECTION
28.
|
AMENDMENT
|
73
|
|
SECTION
29.
|
CONFIDENTIALITY
|
73
|
|
SECTION
30.
|
ENTIRE
AGREEMENT
|
73
|
|
SECTION
31.
|
FURTHER
AGREEMENTS
|
74
|
|
SECTION
32.
|
NO
SOLICITATION
|
74
|
|
SECTION
33.
|
WAIVER
OF JURY TRIAL
|
74
|
|
SECTION
34.
|
COMPLIANCE
WITH REGULATION AB
|
74
|
|
Subsection
34.01
|
Intent
of the Parties; Reasonableness.
|
74
|
|
Subsection
34.02
|
Additional
Representations and Warranties of the Seller.
|
75
|
-iii-
|
Subsection
34.03
|
Information
to Be Provided by the Seller.
|
76
|
|
Subsection
34.04
|
Servicer
Compliance Statement.
|
80
|
|
Subsection
34.05
|
Report
on Assessment of Compliance and Attestation.
|
81
|
|
Subsection
34.06
|
Use
of Subservicers and Subcontractors.
|
82
|
|
Subsection
34.07
|
Indemnification;
Remedies.
|
83
|
EXHIBITS
EXHIBIT
1 MORTGAGE
LOAN DOCUMENTS
EXHIBIT
2 CONTENTS
OF EACH MORTGAGE FILE
EXHIBIT
3 FORM
OF INDEMNIFICATION AND CONTRIBUTION AGREEMENT
EXHIBIT
4 FORM
OF CUSTODIAL ACCOUNT CERTIFICATION
EXHIBIT
5 FORM
OF CUSTODIAL ACCOUNT LETTER AGREEMENT
EXHIBIT
6 FORM
OF ESCROW ACCOUNT CERTIFICATION
EXHIBIT
7 FORM
OF ESCROW ACCOUNT LETTER AGREEMENT
EXHIBIT
8 SELLER’S
UNDERWRITING GUIDELINES
EXHIBIT
9 FORM
OF MONTHLY REMITTANCE REPORT
EXHIBIT
10 FORM
OF SELLER’S OFFICER’S CERTIFICATE
EXHIBIT
11 FORM
OF OPINION OF COUNSEL TO THE SELLER
EXHIBIT
12 FORM
OF SECURITY RELEASE CERTIFICATION
EXHIBIT
13 FORM
OF SECURITY RELEASE CERTIFICATION
EXHIBIT
14 FORM
OF ASSIGNMENT AND CONVEYANCE AGREEMENT
EXHIBIT
15 FORM
OF ASSIGNMENT AND RECOGNITION AGREEMENT
EXHIBIT
16 FORM
OF ANNUAL CERTIFICATION
EXHIBIT
17 SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OFCOMPLIANCE
-iv-
THIS
MORTGAGE LOAN SALE AND SERVICING AGREEMENT (the “Agreement”), dated as of
June 1, 2007, is hereby executed by and between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MORTGAGE CAPITAL
HOLDINGS LLC, a New York limited liability company, successor-in-interest by
merger to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc., a New York corporation (the
“Purchaser”), and US Bank, N.A., a national banking association, in
its capacity as seller (the “Seller”) and in its capacity as servicer
(the “Servicer”).
W
I T
N E S S E T H:
WHEREAS,
the Seller desires to sell, from time to time, to the Purchaser, and the
Purchaser desires to purchase, from time to time, from the Seller, certain
conventional fixed and adjustable rate residential first-lien and second-lien
mortgage loans (the “Mortgage Loans”) on a servicing-retained basis as
described herein, and which shall be delivered in pools of whole loans (each,
a
“Mortgage Loan Package”) on various dates as provided herein (each, a
“Closing Date”);
WHEREAS,
each Mortgage Loan is secured by a mortgage, deed of trust or other security
instrument creating a first lien on a residential dwelling located in the
jurisdiction indicated on the Mortgage Loan Schedule for the related Mortgage
Loan Package;
WHEREAS,
the Purchaser, the Seller and the Servicer wish to prescribe the manner of
the
conveyance, servicing and control of the Mortgage Loans; and
WHEREAS,
following its purchase of the Mortgage Loans from the Seller, the Purchaser
desires to sell some or all of the Mortgage Loans to one or more purchasers
as a
whole loan transfer or a public or private, rated or unrated mortgage
pass-through transaction.
NOW,
THEREFORE, in consideration of the premises and mutual agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Purchaser, the Seller and
the
Servicer agree as follows:
Section
1. Definitions. For
purposes of this Agreement, the following capitalized terms shall have the
respective meanings set forth below.
Accepted
Servicing Procedures: Procedures (including collection
procedures) that the Servicer customarily employs and exercises in servicing
and
administering mortgage loans for its own account that are similar to the
Mortgage Loans of prudent mortgage lending institutions which service mortgage
loans of the same type as the Mortgage Loans in the jurisdictions where the
related Mortgaged Properties are located, which practices (i) shall be in
accordance with the requirements of the Servicer’s policies and procedures and
(ii) shall be, at a minimum, at least as prudent as the requirements of
▇▇▇▇▇▇ Mae as set forth from time to time in the ▇▇▇▇▇▇ ▇▇▇ Selling and
Servicing Guide, as amended from time to time.
Adjustable
Rate Mortgage Loan: A Mortgage Loan purchased pursuant to this
Agreement, the Mortgage Interest Rate of which is adjusted from time to time
in
accordance with the terms of the related Mortgage Note.
Affiliate: With
respect to any specified Person, any other Person controlling or controlled
by
or under common control with such specified Person. For the purposes
of this definition, “control” when used with respect to any specified Person
means the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.
Agency
Transfer: A ▇▇▇▇▇▇ Mae Transfer or a ▇▇▇▇▇▇▇ Mac
Transfer.
Agreement: This
Mortgage Loan Sale and Servicing Agreement including all exhibits, schedules,
amendments and supplements hereto.
ALTA: The
American Land Title Association.
Appraised
Value: With respect to any Mortgaged Property, the lesser of
(i) the value thereof as determined by an appraisal made for the originator
of the Mortgage Loan at the time of origination of the Mortgage Loan by a
Qualified Appraiser and (ii) the purchase price paid for the related
Mortgaged Property by the Mortgagor with the proceeds of the Mortgage Loan;
provided, however, that in the case of a Refinanced Mortgage
Loan, such value of the Mortgaged Property is based solely upon the value
determined by an appraisal made for the originator of such Refinanced Mortgage
Loan at the time of origination of such Refinanced Mortgage Loan by a Qualified
Appraiser.
Assignment
and Conveyance Agreement: As defined in
Section 2.
Assignment
of Mortgage: An individual assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form and in blank, sufficient
under the laws of the jurisdiction in which the related Mortgaged Property
is
located to give record notice of the sale of the Mortgage to the
Purchaser.
Balloon
Mortgage Loan: Any Mortgage Loan (a) that requires only
payments of interest until the stated maturity date of the Mortgage Loan or
(b) for which Monthly Payments of principal (not including the payment due
on its stated maturity date) are based on an amortization schedule that would
be
insufficient to fully amortize the principal thereof by the stated maturity
date
of the Mortgage Loan.
Business
Day: Any day other than a Saturday or Sunday, or a day on which
banking and savings and loan institutions in the state in which (i) the
Servicer is located or (ii) the Custodial Account is maintained, are
authorized or obligated by law or executive order to be closed.
Cash-Out
Refinance: A Refinanced Mortgage Loan in which the proceeds
received were in excess of the amount of funds required to repay the principal
balance of any existing first mortgage on the related Mortgaged Property, pay
related closing costs and satisfy
-2-
any
outstanding subordinate mortgages on the related
Mortgaged Property and which provided incidental cash to the related Mortgagor
of more than 1% of the original principal balance of such Mortgage
Loan.
Closing
Date: The date or dates on which the Purchaser from time to time shall
purchase, and the Seller from time to time shall sell, the Mortgage Loans listed
on the related Mortgage Loan Schedule with respect to the related Mortgage
Loan
Package.
Closing
Documents: The documents required to be delivered on each Closing
Date pursuant to Section 9.
CLTA: The
California Land Title Association.
CLTV: As
of any date and as to any Second Lien Loan, the ratio, expressed as a
percentage, of (a) the sum of (i) the outstanding principal balance of
the Second Lien Loan and (ii) the outstanding principal balance as of such
date of any mortgage loan or mortgage loans that are senior or equal in priority
to the Second Lien Loan and which are secured by the same Mortgaged Property
to
(b) the Appraised Value as determined pursuant to the Underwriting
Guidelines of the related Mortgaged Property as of the origination of the Second
Lien Loan.
Code: The
Internal Revenue Code of 1986, as amended, or any successor statute
thereto.
Commission: The
United States Securities and Exchange Commission.
Condemnation
Proceeds: All awards, compensation and settlements in respect of
a taking of all or part of a Mortgaged Property, whether permanent or temporary,
partial or entire, by exercise of the power of condemnation or the right of
eminent domain, to the extent not required to be released to a Mortgagor in
accordance with the terms of the related Mortgage Loan Documents.
Co-op: A
private, cooperative housing corporation, having only one class of stock
outstanding, which owns or leases land and all or part of a building or
buildings, including apartments, spaces used for commercial purposes and common
areas therein and whose board of directors authorizes the sale of stock and
the
issuance of a Co-op Lease.
Co-op
Lease: With respect to a Co-op Loan, the lease with respect to a
dwelling unit occupied by the Mortgagor and relating to the stock allocated
to
the related dwelling unit.
Co-op
Loan: A Mortgage Loan secured by the pledge of stock allocated to
a dwelling unit in a residential cooperative housing corporation and a
collateral assignment of the related Co-op Lease.
Covered
Loan: A Mortgage Loan categorized as Covered pursuant to
Appendix E of Standard & Poor’s Glossary.
Custodial
Account: As defined in Subsection 11.04.
-3-
Custodial
Agreement: The agreement governing the retention of the originals
of each Mortgage Note, Mortgage, Assignment of Mortgage and other Mortgage
Loan
Documents. If more than one Custodial Agreement is in effect at any
given time, all of the individual Custodial Agreements shall collectively be
referred to as the “Custodial Agreement.”
Custodian: The
custodian under a Custodial Agreement, and its successors in interest, or any
successor to the Custodian under the Custodial Agreement as therein
provided.
Cut-off
Date: The date or dates designated as such on the related
Mortgage Loan Schedule with respect to the related Mortgage Loan
Package.
Cut-off
Date Principal Balance: The aggregate Stated Principal Balance of
the Mortgage Loans as of the applicable Cut-off Date which is determined after
the application, to the reduction of principal, of payments of principal due
on
or before such Cut-off Date, whether or not collected, and of partial principal
prepayments received before such Cut-off Date.
Deemed
Material and Adverse Representation: Each representation and
warranty identified as such in Section 7.01 of this
Agreement.
Deleted
Mortgage Loan: A Mortgage Loan that is repurchased or to be
repurchased or replaced or to be replaced with a Qualified Substitute Mortgage
Loan by the Seller in accordance with the terms of this Agreement.
Delinquent
Mortgage Loans: As defined in
Subsection 11.01.
Depositor: The
depositor, as such term is defined in Regulation AB, with respect to any
Securitization Transaction.
Determination
Date: With respect to each Remittance Date, the 15th day
(or, if such
15th day is
not
a Business Day, the following Business Day) of the month in which such
Remittance Date occurs.
Due
Date: With respect to each Remittance Date, the first day of the
calendar month in which such Remittance Date occurs, which is the day on which
the Monthly Payment is due on a Mortgage Loan, exclusive of any days of
grace.
Due
Period: With respect to each Remittance Date and any Mortgage
Loan, the period beginning on the second day of the month preceding such
Remittance Date through and including the first day of the month in which such
Remittance Date occurs.
Eligible
Investments: Any one or more of the following obligations or
securities:
(a) obligations
of or guaranteed as to principal and interest by ▇▇▇▇▇▇▇ Mac, ▇▇▇▇▇▇ ▇▇▇ or
any
agency or instrumentality of the United States when such obligations are backed
by the full faith and credit of the United States; provided,
however, that such obligations of ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ ▇▇▇ shall
be
limited to senior debt obligations and mortgage participation certificates
except that investments in mortgage-backed or mortgage participation
-4-
securities
with yields evidencing extreme sensitivity
to the rate of principal payments on the underlying mortgages shall not
constitute Eligible Investments hereunder;
(b) repurchase
agreements on obligations specified in clause (a) maturing not more
than one month from the date of acquisition thereof;
(c) federal
funds, certificates of deposit, demand deposits, time deposits and bankers’
acceptances (which shall each have an original maturity of not more than ninety
(90) days and, in the case of bankers’ acceptances, shall in no event have
an original maturity of more than 365 days or a remaining maturity of more
than thirty (30) days) denominated in United States dollars of any United
States depository institution or trust company incorporated under the laws
of
the United States or any state thereof or of any domestic branch of a foreign
depository institution or trust company;
(d) commercial
paper (having original maturities of not more than 365 days) of any
corporation incorporated under the laws of the United States or any state
thereof which is rated not lower than “P-2” by ▇▇▇▇▇’▇ Investors Service, Inc.
and rated not lower than “A-2” by Standard & Poor’s; and
(e) a
money market fund;
provided,
however, that no instrument shall be an Eligible Investment if it
represents, either (1) the right to receive only interest payments with
respect to the underlying debt instrument or (2) the right to receive both
principal and interest payments derived from obligations underlying such
instrument and the principal and interest with respect to such instrument
provide a yield to maturity greater than 120% of the yield to maturity at par
of
such underlying obligations.
Escrow
Account: As defined in Subsection 11.06.
Escrow
Payments: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, mortgage insurance premiums, fire and hazard insurance
premiums, condominium charges, and any other payments required to be escrowed
by
the Mortgagor with the Mortgagee pursuant to the Mortgage or any other
document.
Event
of Default: Any one of the conditions or circumstances enumerated
in Subsection 13.01.
Exchange
Act: The Securities Exchange Act of 1934, as
amended.
▇▇▇▇▇▇
▇▇▇: The Federal National Mortgage Association or any successor
thereto.
▇▇▇▇▇▇
Mae Guides: The ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇’ Guide and the ▇▇▇▇▇▇ Mae
Servicers’ Guide, as amended or restated from time to time.
▇▇▇▇▇▇
▇▇▇ Transfer: As defined in Section 15.
-5-
FDIC: The
Federal Deposit Insurance Corporation, or any successor thereto.
FHA: The
Federal Housing Administration, an agency within the United States Department
of
Housing and Urban Development, or any successor thereto and including the
Federal Housing Commissioner and the Secretary of Housing and Urban Development
where appropriate under the FHA Regulations.
Fidelity
Bond: The fidelity bond required to be obtained by the Servicer
pursuant to Subsection 11.11.
FIRREA: The
Financial Institutions Reform, Recovery, and Enforcement Act of 1989, as amended
and in effect from time to time.
First
Lien Loan: A Mortgage Loan secured by a first lien Mortgage on
the related Mortgaged Property.
Fixed
Rate Mortgage Loan: A fixed rate mortgage loan purchased pursuant
to this Agreement.
▇▇▇▇▇▇▇
Mac: The Federal Home Loan Mortgage Corporation, or any successor
thereto.
▇▇▇▇▇▇▇
Mac Transfer: As defined in Section 15.
Gross
Margin: With respect to each Adjustable Rate Mortgage Loan, the
fixed percentage amount set forth in the related Mortgage Note which amount
is
added to the Index in accordance with the terms of the related Mortgage Note
to
determine on each Interest Rate Adjustment Date the Mortgage Interest Rate
for
such Mortgage Loan.
High
Cost Loan: A Mortgage Loan (a) covered by the Home Ownership
and Equity Protection Act of 1994 (“HOEPA”), (b) with an “annual percentage
rate” or total “points and fees” (as each such term is calculated under HOEPA)
payable by the related Mortgagor that exceed the thresholds set forth by HOEPA
and its implementing regulations, including 12 C.F.R. § 226.32(a)(1)(i) and
(ii), (c) classified as a “high cost home,” “threshold,” “covered,”
(excluding New Jersey “Covered Home Loans” as that term was defined in
clause (1) of the definition of that term in the New Jersey Home Ownership
Security Act of 2002 that were originated between November 26, 2003 and
July 7, 2004), “high risk home,” “predatory” or similar loan under any
other applicable state, federal or local law (or a similarly classified loan
using different terminology under a law imposing heightened regulatory scrutiny
or additional legal liability for residential mortgage loans having high
interest rates, points and/or fees) or (d) a Mortgage Loan categorized as
High Cost pursuant to Appendix E of Standard & Poor’s
Glossary. For avoidance of doubt, the parties agree that this
definition shall apply to any law regardless of whether such law is presently,
or in the future becomes, the subject of judicial review or
litigation.
Home
Loan: A Mortgage Loan categorized as a Home Loan pursuant to
Appendix E of Standard & Poor’s Glossary.
-6-
HUD: The
Department of Housing and Urban Development, or any federal agency or official
thereof which may from time to time succeed to the functions thereof with regard
to Mortgage Insurance issued by the FHA. The term “HUD,” for purposes
of this Agreement, is also deemed to include subdivisions thereof such as the
FHA and Government National Mortgage Association.
Index: The
index indicated in the related Mortgage Note for each Adjustable Rate Mortgage
Loan.
Insurance
Proceeds: With respect to each Mortgage Loan, proceeds of any FHA
or VA insurance, title policy, hazard policy or other policies insuring the
Mortgage Loan or the related Mortgaged Property.
Interest
Rate Adjustment Date: With respect to each Adjustable Rate
Mortgage Loan, the date, specified in the related Mortgage Note and the related
Mortgage Loan Schedule, on which the Mortgage Interest Rate is
adjusted.
Interim
Funder: With respect to each MERS Designated Mortgage Loan, the
Person named on the MERS System as the interim funder pursuant to the MERS
Procedures Manual.
Investor: With
respect to each MERS Designated Mortgage Loan, the Person named on the MERS
System as the investor pursuant to the MERS Procedures Manual.
Lifetime
Rate Cap: The provision of each Mortgage Note related to an
Adjustable Rate Mortgage Loan which provides for an absolute maximum Mortgage
Interest Rate thereunder. The Mortgage Interest Rate during the term
of each Adjustable Rate Mortgage Loan shall not at any time exceed the Mortgage
Interest Rate at the time of origination of such Adjustable Rate Mortgage Loan
by more than the amount per annum set forth on the related Mortgage Loan
Schedule.
Liquidation
Proceeds: The proceeds received in connection with the
liquidation of a defaulted Mortgage Loan, whether through the sale or assignment
of such Mortgage Loan, trustee’s sale, foreclosure sale or otherwise or the sale
of the related Mortgaged Property if the Mortgaged Property is acquired in
satisfaction of the Mortgage Loan, other than amounts received following the
acquisition of REO Property, Insurance Proceeds and Condemnation
Proceeds.
Loan-to-Value
Ratio: With respect to any Mortgage Loan, as of any date of
determination, the ratio (expressed as a percentage) the numerator of which
is
the outstanding principal balance of the Mortgage Loan as of the related Cut-off
Date (unless otherwise indicated), and the denominator of which is the lesser
of
(a) the Appraised Value of the Mortgaged Property at origination and
(b) if the Mortgage Loan was made to finance the acquisition of the related
Mortgaged Property, the purchase price of the Mortgaged Property.
LPMI
Fee: With respect to each Mortgage Loan which has an LPMI Policy,
the portion of the Mortgage Interest Rate as set forth on the related Mortgage
Loan Schedule (which shall be payable solely from the interest portion of
Monthly Payments, Insurance Proceeds,
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Condemnation
Proceeds or Liquidation Proceeds),
which, during such period prior to the required cancellation of the LPMI Policy,
shall be used to pay the premium due on the related LPMI Policy.
LPMI
Loan: Any Mortgage Loan with respect to which Servicer is
responsible for paying the premium due on the related LPMI Policy with the
proceeds generated by the LPMI Fee relating to such Mortgage Loan, as set forth
on the related Mortgage Loan Schedule.
LPMI
Policy: A policy of primary mortgage guaranty insurance issued by
an insurer acceptable under the Underwriting Guidelines and qualified to do
business in the jurisdiction where the Mortgaged Property is located, pursuant
to which the related premium is to be paid by the Servicer of the related
Mortgage Loan from payments of interest made by the Mortgagor in an amount
as is
set forth in the related Mortgage Loan Schedule.
LTV: Loan-to-Value
Ratio.
Manufactured
Home: A single family residential unit that is constructed in a
factory in sections in accordance with the Federal Manufactured Home
Construction and Safety Standards adopted on June 15, 1976, by the
Department of Housing and Urban Development (“HUD Code”), as amended in
2000, which preempts state and local building codes. Each unit is
identified by the presence of a HUD Plate/Compliance Certificate
label. The sections are then transported to the site and joined
together and affixed to a pre-built permanent foundation (which satisfies the
manufacturer’s requirements and all state, county, and local building codes and
regulations). The manufactured home is built on a non-removable,
permanent frame chassis that supports the complete unit of walls, floors, and
roof. The underneath part of the home may have running gear (wheels,
axles, and brakes) that enable it to be transported to the permanent
site. The wheels and hitch are removed prior to anchoring the unit to
the permanent foundation. The manufactured home must be classified as
real estate and taxed accordingly. The permanent foundation may be on
land owned by the mortgager or may be on leased land.
MERS: Mortgage
Electronic Registration Systems, Inc., a Delaware corporation, and its
successors in interest.
MERS
Designated Mortgage Loan: Mortgage Loans for which (a) the
Seller has designated or will designate MERS as, and has taken or will take
such
action as is necessary to cause MERS to be, the mortgagee of record, as nominee
for the Seller, in accordance with the MERS Procedures Manual and (b) the
Seller has designated or will designate the Purchaser as the Investor on the
MERS System.
MERS
Procedures Manual: The MERS Procedures Manual, as it may be
amended, supplemented or otherwise modified from time to time.
MERS
Report: The report from the MERS System listing MERS Designated
Mortgage Loans and other information.
MERS
System: MERS mortgage electronic registry system, as more
particularly described in the MERS Procedures Manual.
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Monthly
Payment: With respect to any Mortgage Loan, the scheduled monthly
payment of principal and interest payable by a Mortgagor under the related
Mortgage Note on each Due Date.
Mortgage: With
respect to a Mortgage Loan that is not a Co-op Loan, the mortgage, deed of
trust
or other instrument securing a Mortgage Note, which creates a first lien on
the,
in the case of a First Lien Loan, or a second lien, in the case of a Second
Lien
Loan, on the related Mortgaged Property. With respect to a Co-op
Loan, the Security Agreement.
Mortgage
File: With respect to any Mortgage Loan, the Mortgage Loan
Documents and the items listed in Exhibit 2 hereto and any
additional documents required to be added to the Mortgage File pursuant to
this
Agreement.
Mortgage
Interest Rate: With respect to each Mortgage Loan, the annual
rate at which interest accrues on such Mortgage Loan from time to time in
accordance with the provisions of the related Mortgage Note.
Mortgage
Loan: Each mortgage loan sold, assigned and transferred pursuant
to this Agreement and identified on the applicable Mortgage Loan Schedule,
which
Mortgage Loan includes, without limitation, the Mortgage File, the Monthly
Payments, Principal Prepayments, Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds, REO Disposition Proceeds, and all other rights, benefits,
proceeds and obligations arising from or in connection with such Mortgage Loan,
excluding replaced or repurchased mortgage loans.
Mortgage
Loan Documents: With respect to any Mortgage Loan, the documents
listed in Exhibit 1 hereto.
Mortgage
Loan Package: Each pool of Mortgage Loans, which shall be
purchased by the Purchaser from the Seller from time to time on each Closing
Date.
Mortgage
Loan Remittance Rate: With respect to each Mortgage Loan, the
annual rate of interest payable to the Purchaser, which shall be equal to the
related Mortgage Interest Rate minus the related Servicing Fee
Rate.
Mortgage
Loan Schedule: The schedule of Mortgage Loans setting forth the
following information with respect to each Mortgage Loan in the related Mortgage
Loan Package: (1) the Seller’s Mortgage Loan identifying number;
(2) the Mortgagor’s name; (3) the social security number of the
Mortgagor; (4) a code indicating whether the Mortgagor’s race and/or
ethnicity is (i) native American or Alaskan native, (ii) Asian/Pacific
islander, (iii) African American, (iv) white, (v) Hispanic or
Latino, (vi) other minority, (vii) not provided by the Mortgagor,
(viii) not applicable (if the Mortgagor is an entity) and (ix) unknown
or missing; (5) the street address of the Mortgaged Property including the
city, state and zip code; (6) a code indicating whether the Mortgagor is
self-employed; (7) a code indicating whether the Mortgaged Property is
owner-occupied, investment property or a second home; (8) a code indicating
the number and type of residential units constituting the Mortgaged Property
(e.g. single family residence, two-family residence, three-family residence,
four-family residence, multifamily residence, condominium, manufactured housing,
mixed-use property, raw land and other non-residential properties, planned
unit
development or cooperative stock in a cooperative
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housing
corporation); (9) the original months to
maturity or the remaining months to maturity from the related Cut-off Date,
in
any case based on the original amortization schedule and, if different, the
maturity expressed in the same manner but based on the actual amortization
schedule; (10) the Loan-to-Value Ratio or CLTV, as applicable at
origination; (11) the Mortgage Interest Rate as of the related Cut-off
Date; (12) the date on which the first Monthly Payment was due on the
Mortgage Loan and, if such date is not consistent with the Due Date currently
in
effect, the Due Date; (13) the stated maturity date; (14) the amount
of the Monthly Payment as of the related Cut-off Date; (15) the last
payment date on which a payment was actually applied to the outstanding
principal balance; (16) the schedule of the payment delinquencies in the
prior 12 months; (17) the original principal amount of the Mortgage
Loan; (18) the principal balance of the Mortgage Loan as of the close of
business on the related Cut-off Date, after deduction of payments of principal
due and collected on or before the related Cut-off Date; (19) whether the
Mortgage Loan has Monthly Payments that are interest-only for a period of time,
and the interest-only period, if applicable (and with respect to each Second
Lien Loan, whether the related first lien mortgage loan has monthly payments
that are interest-only for a period of time, and the interest-only period,
if
applicable); (20) with respect to each Mortgage Loan with a second lien
behind it, the combined principal balance of the Mortgage Loan and the
applicable second lien loan, as of the close of business on the related Cut-off
Date, after deduction of payments of principal due and collected on or before
the related Cut-off Date; (21) a code indicating whether there is a
simultaneous second; (22) with respect to Adjustable Rate Mortgage Loans,
the Interest Rate Adjustment Date; (23) with respect to Adjustable Rate
Mortgage Loans, the Gross Margin; (24) with respect to Adjustable Rate
Mortgage Loans, the Lifetime Rate Cap under the terms of the Mortgage Note;
(25) with respect to Adjustable Rate Mortgage Loans, a code indicating the
type of Index, including the methodology for rounding (e.g. rounded upward,
if
necessary, to the nearest ten thousandth (.0001)) and the applicable time
frame for determining the Index; (26) the product type of Mortgage Loan
(i.e., Fixed Rate, Adjustable Rate First Lien Loan or Second Lien Loan);
(27) a code indicating the purpose of the loan (i.e., purchase, Rate/Term
Refinance or Cash-Out Refinance), and with respect to each Second Lien Loan,
the
product type of the related first lien loan; (28) a code indicating the
documentation style (i.e. no documents, full, alternative, reduced, no income/no
asset, stated income, no ration, reduced or NIV); (29) asset verification
(Y/N); (30) the loan credit classification (as described in the
Underwriting Guidelines); (31) whether such Mortgage Loan provides for a
Prepayment Penalty; (32) the Prepayment Penalty period of such Mortgage
Loan, if applicable; (33) a description of the Prepayment Penalty, if
applicable, including whether the applicable Prepayment Penalty is “hard” or
“soft”; (34) the Mortgage Interest Rate as of origination; (35) the
credit risk score (FICO score); (36) the date of origination;
(37) with respect to Adjustable Rate Mortgage Loans, the Mortgage Interest
Rate adjustment period; (38) with respect to Adjustable Rate Mortgage
Loans, the Mortgage Interest Rate adjustment percentage; (39) with respect
to Adjustable Rate Mortgage Loans, the Mortgage Interest Rate floor;
(40) the Mortgage Interest Rate calculation method (i.e., 30/360, simple
interest, other); (41) with respect to Adjustable Rate Mortgage Loans, the
Periodic Rate Cap as of the first Interest Rate Adjustment Date; (42) with
respect to each Adjustable Rate Mortgage Loan, a code indicating whether the
Mortgage Loan provides for negative amortization; (43) a code indicating
whether the Mortgage Loan has negative amortization and the maximum of such
negative amortization; (44) a code indicating whether the Mortgage Loan is
a Balloon Mortgage Loan; (45) a code indicating whether the Mortgage Loan
by its original terms or any modifications thereof provides
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for
amortization beyond its scheduled maturity date;
(46) [reserved]; (47) the original Monthly Payment due; (48) the
Appraised Value; (49) appraisal type; (50) appraisal date (51) a
code indicating whether the Mortgage Loan is covered by a PMI Policy and, if
so,
identifying the PMI Policy provider; (52) the certificate number of the PMI
Policy, if applicable; (53) the amount of coverage of the PMI Policy, if
applicable; (54) in connection with a condominium unit, a code indicating
whether the condominium project where such unit is located is low-rise or
high-rise; (55) a code indicating whether the Mortgaged Property is a
leasehold estate; (56) with respect to the related Mortgagor, the
debt-to-income ratio; (57) sales price; (58) automated valuation model
(AVM); (59) a code indicating whether the Mortgage Loan is a MERS
Designated Mortgage Loan and the MERS Identification Number, if applicable;
(60) a field indicating whether such Mortgage Loan is a Home Loan; and
(61) the DU or LP number, if applicable. With respect to the
Mortgage Loans in the aggregate, the related Mortgage Loan Schedule shall set
forth the following information, as of the related Cut-off
Date: (1) the number of Mortgage Loans; (2) the current
aggregate outstanding principal balance of the Mortgage Loans; (3) the
weighted average Mortgage Interest Rate of the Mortgage Loans; (4) the
weighted average maturity of the Mortgage Loans; (5) the average principal
balance of the Mortgage Loans; (6) the applicable Cut-off Date; and
(7) the applicable Closing Date.
Mortgage
Note: The original executed note or other evidence of the
Mortgage Loan indebtedness of a Mortgagor, including any riders or addenda
thereto.
Mortgaged
Property: With respect to a Mortgage Loan that is not a Co-op
Loan, the Mortgagor’s real property securing repayment of a related Mortgage
Note, consisting of an unsubordinated estate in fee simple or, with respect
to
real property located in jurisdictions in which the use of leasehold estates
for
residential properties is a widely-accepted practice, a leasehold estate, in
a
single parcel or multiple parcels of real property improved by a Residential
Dwelling. With respect to a Co-op Loan, the stock allocated to a
dwelling unit in the residential cooperative housing corporation that was
pledged to secure such Co-op Loan and the related Co-op Lease.
Mortgagee: The
mortgagee or beneficiary named in the Mortgage and the successors and assigns
of
such mortgagee or beneficiary.
Mortgagor: The
obligor on a Mortgage Note, who is an owner of the Mortgaged Property and the
grantor or mortgagor named in the Mortgage and such grantor’s or mortgagor’s
successors in title to the Mortgaged Property.
NAIC: The
National Association of Insurance Commissioners or any successor
thereto.
OCC: Office
of the Comptroller of the Currency, or any successor thereto.
Officer’s
Certificate: A certificate signed by the Chairman of the Board,
the Vice Chairman of the Board, a President or a Vice President and by the
Treasurer, the Secretary, or one of the Assistant Treasurers or the Assistant
Secretaries of the Person on behalf of whom such certificate is being delivered
as required by this Agreement.
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Opinion
of Counsel: A written opinion of counsel, who may be counsel for
the Seller or the Servicer, reasonably acceptable to the Purchaser,
provided that any Opinion of Counsel relating to (a) the
qualification of any account required to be maintained pursuant to this
Agreement as an eligible account, (b) qualification of the Mortgage Loans
in a REMIC or (c) compliance with the REMIC Provisions, must be (unless
otherwise stated in such Opinion of Counsel) an opinion of counsel who
(i) is in fact independent of the Seller and any servicer of the Mortgage
Loans, (ii) does not have any material direct or indirect financial
interest in the Seller or Servicer or in an Affiliate of either and
(iii) is not connected with the Seller or Servicer as an officer, employee,
director or person performing similar functions.
OTS: The
Office of Thrift Supervision or any successor thereto.
Owner: As
defined in Subsection 11.12.
P&I Advance: As
defined in Subsection 11.16.
Payment
Adjustment Date: As to each Adjustable Rate Mortgage Loan, the
date on which an adjustment to the Monthly Payment on a Mortgage Note becomes
effective.
Periodic
Rate Cap: With respect to each Adjustable Rate Mortgage Loan, the
provision of each Mortgage Note which provides for an absolute maximum amount
by
which the Mortgage Interest Rate therein may increase or decrease on an Interest
Rate Adjustment Date above or below the Mortgage Interest Rate previously in
effect. The Periodic Rate Cap for each Adjustable Rate Mortgage Loan
is the rate set forth as such on the related Mortgage Loan
Schedule.
Periodic
Rate Floor: With respect to each Adjustable Rate Mortgage Loan,
the provision of each Mortgage Note which provides for an absolute maximum
amount by which the Mortgage Interest Rate therein may decrease on an Interest
Rate Adjustment Date below the Mortgage Interest Rate previously in
effect.
Person: Any
individual, corporation, partnership, limited liability company, joint venture,
association, joint-stock company, trust, unincorporated organization, government
or any agency or political subdivision thereof.
PMI
Policy: A policy of primary mortgage guaranty insurance issued by
an insurer acceptable under the Underwriting Guidelines and qualified to do
business in the jurisdiction where the Mortgaged Property is
located.
Preliminary
Mortgage Schedule: As defined in
Section 3.
Prepayment
Penalty: With respect to each Mortgage Loan, the amount of any
premium or penalty required to be paid by the Mortgagor if the Mortgagor prepays
such Mortgage Loan as provided in the related Mortgage Note or
Mortgage.
Prime
Rate: The prime rate announced to be in effect from time to time,
as published as the average rate in The Wall Street Journal (Northeast
edition).
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Principal
Prepayment: Any payment or other recovery of principal on a
Mortgage Loan which is received in advance of its scheduled Due Date, including
any Prepayment Penalty thereon, and which is not accompanied by an amount of
interest representing scheduled interest due on any date or dates in any month
or months subsequent to the month of prepayment.
Purchase
Price: The price paid on the related Closing Date by the
Purchaser to the Seller in exchange for the Mortgage Loans purchased on such
Closing Date as calculated in Section 4 of this
Agreement.
Purchase
Price and Terms Agreement: Each of those certain agreements
setting forth the general terms and conditions of the purchase and sale of
the
Mortgage Loans to be purchased from time to time hereunder, each by and between
the Seller and the Purchaser.
Purchase
Price Percentage: The percentage of par (expressed as decimal)
set forth in the related Purchase Price and Terms Agreement.
Purchaser: ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Mortgage Capital Holdings LLC, a New York corporation, and its
successors in interest and assigns, or any successor to the Purchaser under
this
Agreement as herein provided.
Qualified
Appraiser: An appraiser, duly appointed by the Seller, who had no
interest, direct or indirect, in the Mortgaged Property or in any loan made
on
the security thereof, and whose compensation was not affected by the approval
or
disapproval of the Mortgage Loan, and such appraiser and the appraisal made
by
such appraiser both satisfied the requirements of Title XI of FIRREA and
the regulations promulgated thereunder, all as in effect on the date the
Mortgage Loan was originated.
Qualified
Correspondent: Any Person from which the Seller purchased
Mortgage Loans, provided that the following conditions are
satisfied: (i) such Mortgage Loans were originated pursuant to an
agreement between the Seller and such Person that contemplated that such Person
would underwrite mortgage loans from time to time, for sale to the Seller,
in
accordance with underwriting guidelines designated by the Seller (“Designated
Guidelines”) or guidelines that do not vary materially from such Designated
Guidelines; (ii) such Mortgage Loans were in fact underwritten as described
in
clause (i) above and were acquired by the Seller within 180 days after
origination; (iii) either (x) the Designated Guidelines were, at the time such
Mortgage Loans were originated, used by the Seller in origination of mortgage
loans of the same type as the Mortgage Loans for the Seller’s own account or (y)
the Designated Guidelines were, at the time such Mortgage Loans were
underwritten, designated by the Seller on a consistent basis for use by lenders
in originating mortgage loans to be purchased by the Seller; and (iv) the Seller
employed, at the time such Mortgage Loans were acquired by the Seller,
pre-purchase or post-purchase quality assurance procedures (which may involve,
among other things, review of a sample of mortgage loans purchased during a
particular time period or through particular channels) designed to ensure that
Persons from which it purchased mortgage loans properly applied the underwriting
criteria designated by the Seller.
Qualified
Substitute Mortgage Loan: A mortgage loan eligible to be
substituted by the Seller for a Deleted Mortgage Loan which must, on the date
of
such substitution, be
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approved
by the Purchaser and (i) have an actual unpaid principal balance, after
deduction of all scheduled payments due in the month of substitution (or in
the
case of a substitution of more than one mortgage loan for a Deleted Mortgage
Loan, an aggregate actual unpaid principal balance), not in excess of the actual
unpaid principal balance of the Deleted Mortgage Loan (the amount of any
shortfall will be deposited in the Custodial Account by the Seller in the month
of substitution); (ii) have a Mortgage Interest Rate not less than and not
more than one percent (1%) greater than the Mortgage Interest Rate of the
Deleted Mortgage Loan; (iii) have a remaining term to maturity not greater
than and not more than one (1) year less than that of the Deleted Mortgage
Loan; (iv) be of the same type as the Deleted Mortgage Loan (i.e., fixed
rate or adjustable rate with same Mortgage Interest Rate Cap and Index);
(v) comply as of the date of substitution with each representation and
warranty set forth in Subsection 7.01 of this Agreement;
(vi) be current in the payment of principal and interest; (vii) be
secured by a Mortgaged Property of the same type and occupancy status as secured
the Deleted Mortgage Loan; and (viii) have payment terms that do not vary
in any material respect from those of the Deleted Mortgage Loan.
Rate/Term
Refinance: A Refinanced Mortgage Loan, in which the proceeds
received were not in excess of the amount of funds required to repay the
principal balance of any existing first mortgage loan on the related Mortgaged
Property, pay related closing costs and satisfy any outstanding subordinate
mortgages on the related Mortgaged Property and did not provide incidental
cash
to the related Mortgagor of more than one percent (1%) of the original principal
balance of such Mortgage Loan.
Reconstitution: Any
Securitization Transaction or Whole Loan Transfer.
Reconstitution
Agreement: As defined in Section 15.
Record
Date: The close of business of the last Business Day of the month
preceding the month of the related Remittance Date.
Refinanced
Mortgage Loan: A Mortgage Loan the proceeds of which were not
used to purchase the related Mortgaged Property.
Regulation
AB: Subpart 229.1100 – Asset Backed Securities (Regulation AB),
17 C.F.R. §§229.1100-229.1123, as such may be amended from time to time, and
subject to such clarification and interpretation as have been provided by the
Commission in the adopting release (Asset-Backed Securities, Securities Act
Release No. 33-8518, 70 Fed. Reg. 1,506–1,631 (January 7, 2005)) or by the staff
of the Commission, or as may be provided by the Commission or its staff from
time to time.
Remittance
Date: No later than 1:00 p.m. New York time on the 18th day
of any month (or, if such 18th day is not a Business Day, the following Business
Day).
REMIC: A
“real estate mortgage investment conduit” as defined in Section 860D of the
Code.
REMIC
Provisions: Provisions of the federal income tax law relating to
REMICs, which appear at Sections 860A through 860G of Subchapter M of
Chapter 1 of the Code, and
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related
provisions, and proposed, temporary and final
Treasury Regulations and any published rulings, notices and announcements
promulgated thereunder, as the foregoing may be in effect from time to
time.
REO
Disposition: The final sale by the Servicer of an REO
Property.
REO
Disposition Proceeds: All amounts received with respect to an REO
Disposition pursuant to Subsection 11.12.
REO
Property: A Mortgaged Property acquired by the Servicer through
foreclosure or deed in lieu of foreclosure, as described in
Subsection 11.12.
Repurchase
Price: With respect to any Mortgage Loan, a price in an amount
equal to: (a) during the first year immediately following the related Closing
Date and prior to any Securitization Transaction, the sum of (1) the
product of (A) the greater of (x) par and (y) the related Purchase
Price Percentage and (B) the then outstanding actual unpaid principal balance
of
such Mortgage Loan as of the date such repurchase takes place, plus (2)
accrued interest on such Mortgage Loan at the applicable Mortgage Interest
Rate
from the applicable Cut-off Date through the last day of the month in which
such
repurchase takes place, plus (3) the amount of any outstanding
advances owed to any servicer if the Seller is not the Servicer, plus
(4) all costs and expenses incurred by the Purchaser or any servicer
arising out of or based upon such breach, including without limitation, costs
and expenses incurred in the enforcement of the Seller’s repurchase obligation
under this Agreement, less (5) amounts received or advanced in respect
of such Mortgage Loan which are being held in the Custodial Account for
distribution in the month of repurchase, and (b) thereafter, the sum of
(1) the then outstanding actual unpaid principal balance of such Mortgage
Loan as of the date such repurchase takes place, plus (2) accrued
interest on such Mortgage Loan at the applicable Mortgage Interest Rate from
the
applicable Cut-off Date through the last day of the month in which such
repurchase takes place, plus (3) the amount of any outstanding
advances owed to any servicer, if the Seller is not the Servicer, plus
(4) all costs and expenses incurred by the Purchaser or any servicer
arising out of or based upon such breach, including without limitation, costs
and expenses incurred in the enforcement of the Seller’s repurchase obligation
under this Agreement, less (5) amounts received or advanced in respect
of such Mortgage Loan which are being held in the Custodial Account for
distribution in the month of repurchase. In the event the
Purchaser has securitized or sold a Mortgage Loan, the Repurchase Price for
such
Mortgage Loan shall be as set forth in clause (b) above in all cases,
without regard to when the repurchase obligation, if any, arises.
Residential
Dwelling: Any one of the following: (i) a
detached one-family dwelling, (ii) a detached two- to four-family dwelling,
(iii) a one-family dwelling unit in a condominium project, or (iv) a
one-family dwelling in a planned unit development, none of which is a
co-operative, mobile or Manufactured Home.
Second
Lien Loan: A Mortgage Loan secured by a second lien Mortgage on
the related Mortgaged Property.
Securities
Act: The Securities Act of 1933, as amended.
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Securitization
Transaction: Any transaction involving either (1) a sale or other
transfer of some or all of the Mortgage Loans directly or indirectly to an
issuing entity in connection with an issuance of publicly offered or privately
placed, rated or unrated mortgage-backed securities or (2) an issuance of
publicly offered or privately placed, rated or unrated securities, the payments
on which are determined primarily by reference to one or more portfolios of
residential mortgage loans consisting, in whole or in part, of some or all
of
the Mortgage Loans.
Security
Agreement: The agreement creating a security interest in the
stock allocated to a dwelling unit in the residential cooperative housing
corporation that was pledged to secure such Co-op Loan and the related Co-op
Lease.
Seller: As
defined in the initial paragraph of this Agreement, together with its successors
in interest.
Seller
Information: As defined in Section 34.07(a).
Servicer: As
defined in the initial paragraph of this Agreement, together with its successors
and assigns as permitted under the terms of this Agreement, or with respect
to
Subsection 34.03(c), as defined therein.
Servicing
Advances: All customary, reasonable and necessary out-of-pocket
costs and expenses incurred in the performance by the Servicer of its servicing
obligations, including, but not limited to, the cost of (i) the
preservation, restoration and protection of the Mortgaged Property,
(ii) any enforcement or judicial proceedings, including foreclosures,
(iii) the management and liquidation of the Mortgaged Property if the
Mortgaged Property is acquired in satisfaction of the Mortgage, and
(iv) payments made by the Servicer with respect to a Mortgaged Property
pursuant to Subsection 11.08.
Servicing
Criteria: The “servicing criteria” set forth in Item 1122(d) of
Regulation AB, as such may be amended from time to time.
Servicing
Fee: With respect to each Mortgage Loan, the amount of the annual
fee the Purchaser shall pay to the Servicer, which shall, for each month, be
equal to one-twelfth of (i) the product of the Servicing Fee Rate and
(ii) the Stated Principal Balance of such Mortgage Loan. Such
fee shall be payable monthly, computed on the basis of the same principal amount
and period respecting which any related interest payment on a Mortgage Loan
is
computed, and shall be pro rated (based upon the number of days of the related
month the Servicer so acted as Servicer relative to the number of days in that
month) for each part thereof. The obligation of the Purchaser to pay
the Servicing Fee is limited to, and payable solely from, the interest portion
(including recoveries with respect to interest from Liquidation Proceeds and
other proceeds, to the extent permitted by Subsection 11.05) of
related Monthly Payments collected by the Servicer, or as otherwise provided
under Subsection 11.05.
Servicing
Fee Rate: With respect to each Mortgage Loan, the per annum rate
set forth in the applicable Purchase Price and Terms Agreement.
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Servicing
File: With respect to each Mortgage Loan, the portion of the
Mortgage File, excluding the Mortgage Loan Documents, retained by the Servicer
pursuant to the terms of this Agreement.
Servicing
Officer: Any officer of the Servicer involved in, or responsible
for, the administration and servicing of the Mortgage Loans whose name appears
on a list of servicing officers furnished to the Purchaser by the Servicer,
as
such list may be amended from time to time.
Servicing
Rights: Any and all of the following: (a) any and
all rights to service the Mortgage Loans; (b) any payments to or monies
received by the Seller for servicing the Mortgage Loans; (c) any late fees,
penalties or similar payments with respect to the Mortgage Loans; (d) all
agreements or documents creating, defining or evidencing any such servicing
rights to the extent they relate to such servicing rights and all rights of
the
Seller thereunder; (e) Escrow Payments or other similar payments with
respect to the Mortgage Loans and any amounts actually collected by the Seller
with respect thereto; (f) all accounts and other rights to payment related
to any of the property described in this paragraph; and (g) any and all
documents, files, records, servicing files, servicing documents, servicing
records, data tapes, computer records, or other information pertaining to the
Mortgage Loans or pertaining to the past, present or prospective servicing
of
the Mortgage Loans.
Sponsor: The
sponsor, as such term is defined in Regulation AB, with respect to any
Securitization Transaction.
Standard &
Poor’s: Standard & Poor’s Ratings Services, a division
of The ▇▇▇▇▇▇-▇▇▇▇ Companies Inc., and any successor thereto.
Standard &
Poor’s Glossary: The Standard & Poor’s LEVELS® Glossary,
as may be in effect from time to time.
Stated
Principal Balance: As to each Mortgage Loan as to any date of
determination, (i) the principal balance of the Mortgage Loan at the
related Cut-off Date after giving effect to payments of principal due on or
before such date, whether or not received, minus (ii) all amounts
previously distributed to the Purchaser with respect to the related Mortgage
Loan representing payments or recoveries of principal, or advances in lieu
thereof on such Mortgage Loan.
Static
Pool Information: Static pool information as described in Item
1105(a)(1)-(3) and 1105(c) of Regulation AB.
Subcontractor: Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of Mortgage Loans but performs one or more
discrete functions identified in Item 1122(d) of Regulation AB with respect
to
Mortgage Loans under the direction or authority of the Servicer or a
Subservicer.
Subservicer: Any
Person that services Mortgage Loans on behalf of the Servicer or any Subservicer
and is responsible for the performance (whether directly or through
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Subservicers
or Subcontractors) of a substantial
portion of the material servicing functions required to be performed by the
Seller under this Agreement or any Reconstitution Agreement that are identified
in Item 1122(d) of Regulation AB.
Successor
Servicer: Any servicer of one or more Mortgage Loans designated
by the Purchaser as being entitled to the benefits of the indemnifications
set
forth in Subsections 7.03 and 12.01.
Third-Party
Originator: Each Person, other than a Qualified Correspondent,
that originated Mortgage Loans acquired by the Seller.
Transfer
Date: In the event the Servicer is terminated as servicer of a
Mortgage Loan pursuant to Subsections 11.01, 12.04,
13.01, 14.01(c) or 14.02, the date on which the Purchaser,
or its designee, shall receive the transfer of servicing responsibilities and
begin to perform the servicing of such Mortgage Loans, and the Seller, as
Servicer, shall cease all servicing responsibilities.
Underwriting
Guidelines: The underwriting guidelines of the Seller, a copy of
which is attached hereto as Exhibit 8 and a then-current copy of
which shall be attached as an exhibit to the related Assignment and
Conveyance.
VA: The
United States Department of Veterans Administration, or any successor
thereto.
VA
Mortgage Loan: A Mortgage Loan partially guaranteed by the VA
pursuant to the Servicemen’s Readjustment Act of 1944, as amended, or
Chapter 37 of Title 38 of the United States Code.
VA
Vendee Loan: A purchase money mortgage loan made by VA in
connection with the sale of a property that it has acquired (a) from a
private lender pursuant to its obligations under the VA Loan Guaranty Program
for Veterans upon termination of a residential mortgage loan made to a veteran
borrower under one of VA’s loan guaranty programs and (b) as result of its
enforcement of the security instrument covering a property securing a VA Vendee
Loan after default by the borrower thereunder.
Whole
Loan Transfer: Any sale or transfer of some or all of the
Mortgage Loans, other than a Securitization Transaction.
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Section
2. Purchase and Conveyance. The
Seller agrees to sell from time to time, and the Purchaser agrees to purchase
from time to time, Mortgage Loans having an aggregate principal balance on
the
related Cut-off Date in an amount as set forth in the related Purchase Price
and
Terms Agreement, or in such other amount as agreed by the Purchaser and the
Seller as evidenced by the actual aggregate principal balance of the Mortgage
Loans accepted by the Purchaser on each Closing Date, together with the related
Mortgage Files and all rights and obligations arising under the documents
contained therein. The Seller, simultaneously with the delivery of
the Mortgage Loan Schedule with respect to the related Mortgage Loan Package
to
be purchased on each Closing Date, shall execute and deliver an Assignment
and
Conveyance Agreement in the form attached hereto as Exhibit 14 (the
“Assignment and Conveyance Agreement”).
With
respect to each Mortgage Loan purchased, the Purchaser shall own and be entitled
to receive: (a) all scheduled principal due after the related
Cut-off Date, (b) all other payments and/or recoveries of principal
collected after the related Cut-off Date (provided, however,
that all scheduled payments of principal due on or before the related Cut-off
Date and collected by the Servicer after the related Cut-off Date shall belong
to the Seller), and (c) all payments of interest on the Mortgage Loans, net
of the Servicing Fee (minus that portion of any such interest payment that
is
allocable to the period prior to the related Cut-off Date).
For
the
purposes of this Agreement, payments of scheduled principal and interest prepaid
for a Due Date beyond the related Cut-off Date shall not be applied to reduce
the Stated Principal Balance as of the related Cut-off Date. Such
prepaid amounts (minus the applicable Servicing Fee) shall be the property
of
the Purchaser. The Seller shall remit to the Servicer for deposit any
such prepaid amounts into the Custodial Account, which account is established
for the benefit of the Purchaser, for remittance by the Servicer to the
Purchaser on the appropriate Remittance Date. All payments of
principal and interest, less the applicable Servicing Fee, due on a Due Date
following the related Cut-off Date shall belong to the Purchaser.
Section
3. Mortgage Loan Schedule. The
Seller from time to time shall provide the Purchaser with certain information
constituting a preliminary listing of the Mortgage Loans to be purchased on
each
Closing Date in accordance with the related Purchase Price and Terms Agreement
and this Agreement (each, a “Preliminary Mortgage
Schedule”).
The
Seller shall deliver the related Mortgage Loan Schedule for the Mortgage Loans
to be purchased on a particular Closing Date to the Purchaser at least five
(5)
Business Days prior to the related Closing Date. The related Mortgage
Loan Schedule shall be the related Preliminary Mortgage Schedule less those
Mortgage Loans which have not been funded on the related Closing
Date.
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Section
4. Purchase Price. The
Purchase Price for each Mortgage Loan shall be the percentage of par as stated
in the related Purchase Price and Terms Agreement (subject to adjustment as
provided therein), multiplied by the aggregate principal balance, as of the
related Cut-off Date, of the Mortgage Loans listed on the related Mortgage
Loan
Schedule, after application of scheduled payments of principal due on or before
the related Cut-off Date, but only to the extent such payments were actually
received. The initial principal amount of the related Mortgage Loans
shall be the aggregate principal balance of the Mortgage Loans, so computed
as
of the related Cut-off Date. If so provided in the related Purchase
Price and Terms Agreement, portions of the Mortgage Loans shall be priced
separately.
In
addition to the Purchase Price as described above, the Purchaser shall pay
to
the Seller, at closing, accrued interest on the current principal amount of
the
related Mortgage Loans as of the related Cut-off Date at the weighted average
Mortgage Interest Rate of those Mortgage Loans. The Purchase Price
plus accrued interest as set forth in the preceding paragraph shall be paid
to the Seller by wire transfer of immediately available funds to an account
designated by the Seller in writing.
Section
5. Examination of Mortgage
Files. At
least ten (10) Business Days prior to the related Closing Date, the Seller
shall
either (a) deliver to the Purchaser or its designee in escrow, for
examination with respect to each Mortgage Loan to be purchased, the related
Mortgage File, including a copy of the Assignment of Mortgage, if applicable,
pertaining to each Mortgage Loan, or (b) make the related Mortgage File
available to the Purchaser for examination at such other location as shall
otherwise be acceptable to the Purchaser. Such examination of the
Mortgage Files may be made by the Purchaser or its designee at any reasonable
time before or after the related Closing Date. If the Purchaser makes
such examination prior to the related Closing Date and determines, in its sole
discretion, that any Mortgage Loans do not conform to any of the requirements
set forth in the related Purchase Price and Terms Agreement, or as an
Exhibit annexed thereto, the Purchaser may delete such Mortgage Loans from
the related Mortgage Loan Schedule, and such Deleted Mortgage Loan (or Loans)
may be replaced by a Qualified Substitute Mortgage Loan (or Loans) acceptable
to
the Purchaser. The Purchaser may, at its option and without notice to
the Seller, purchase some or all of the Mortgage Loans without conducting any
partial or complete examination. The fact that the Purchaser or its
designee has conducted or has failed to conduct any partial or complete
examination of the Mortgage Files shall not impair in any way the Purchaser’s
(or any of its successor’s) rights to demand repurchase, substitution or other
relief as provided in this Agreement. In the event that the Seller
fails to deliver the Mortgage File with respect to any Mortgage Loan, the Seller
shall, upon the request of the Purchaser, repurchase such Mortgage Loan as
the
price and in the manner specified in Subsection 7.03.
Section
6. Delivery of Mortgage Loan
Documents.
Subsection
6.01 Possession of Mortgage
Files.
The contents of each Mortgage File required to be retained by or delivered
to
the Servicer to service the Mortgage Loans pursuant to this Agreement and thus
not delivered to the Purchaser, or its designee, are and shall be held in trust
by the Servicer for the benefit of the Purchaser as the owner
thereof. The Servicer’s possession of any portion of each such
Mortgage File is at the will of the
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Purchaser
for the sole purpose of facilitating servicing of the Mortgage Loans pursuant
to
this Agreement, and such retention and possession by the Servicer shall be
in a
custodial capacity only. The ownership of each Mortgage Note, each
Mortgage and the contents of each Mortgage File is vested in the Purchaser
and
the ownership of all records and documents with respect to the related Mortgage
Loan prepared by or which come into the possession of the Servicer shall
immediately vest in the Purchaser and shall be retained and maintained, in
trust, by the Servicer at the will of the Purchaser in such custodial capacity
only. The Mortgage File retained by the Servicer with respect to each
Mortgage Loan pursuant to this Agreement shall be appropriately identified
in
the Servicer’s computer system and/or books and records to reflect clearly the
sale of such related Mortgage Loan to the Purchaser. The Servicer
shall release from its custody the contents of any Mortgage File retained by
it
only in accordance with this Agreement, except when such release is required
in
connection with a repurchase of any such Mortgage Loan pursuant to
Subsection 7.03 or if required under applicable law or court
order.
Subsection
6.02 Books and Records.
Record title to each Mortgage and the related Mortgage Note as of the related
Closing Date shall be in the name of the Seller; provided,
however, that if a Mortgage has been recorded in the name of MERS
or
its designee, the Seller is shown as the owner of the related Mortgage Loan
on
the records of MERS for purposes of the system of recording transfers of
beneficial ownership of mortgages maintained by MERS. Notwithstanding
the foregoing, ownership of each Mortgage and the related Mortgage Note shall
be
vested solely in the Purchaser or the appropriate designee of the Purchaser,
as
the case may be. All rights arising out of the Mortgage Loans
including, but not limited to, all funds received by the Servicer after the
related Cut-off Date on or in connection with a Mortgage Loan as provided in
Section 2 shall be vested in the Purchaser or one or more designees
of the Purchaser; provided, however, that all such funds
received on or in connection with a Mortgage Loan as provided in
Section 2 shall be received and held by the Servicer in trust for
the benefit of the Purchaser or the appropriate designee of the Purchaser,
as
the case may be, as the owner of the Mortgage Loans pursuant to the terms of
this Agreement.
It
is the
express intention of the parties that the transactions contemplated by this
Agreement be, and be construed as, a sale of the related Mortgage Loans by
the
Seller and not a pledge of such Mortgage Loans by the Seller to the Purchaser
to
secure a debt or other obligation of the Seller. Consequently, the
sale of each Mortgage Loan shall be reflected as a purchase on the Purchaser’s
business records, tax returns and financial statements, and as a sale of assets
on the Seller’s business records, tax returns and financial
statements.
Subsection
6.03 Delivery of Mortgage Loan
Documents. The
Seller shall, at least two (2) Business Days prior to the related Closing
Date (or such later date as the Purchaser may reasonably request), deliver
and
release to the Purchaser, or its designee, the Mortgage Loan Documents with
respect to each Mortgage Loan pursuant to a bailee letter
agreement. In connection with the foregoing, the Seller shall
indemnify the Purchaser and its present and former directors, officers,
employees and agents and any Successor Servicer and its present and former
directors, officers, employees and agents, and hold such parties harmless
against any losses, damages, penalties, fines, forfeitures, legal fees and
expenses and related costs, judgments, and other costs and expenses based on
or
grounded upon, or resulting from, the fact that any Mortgage Loan is not covered
by an ALTA or CLTA lender’s title insurance policy or, if such a form of title
insurance policy is not available in the jurisdiction where the related
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Mortgage
Property is located, (a title insurance
policy equivalent to an ALTA or CLTA lender’s title insurance
policy). For purposes of the previous sentence, “Purchaser” shall
mean the Person then acting as the Purchaser under this Agreement and any and
all Persons who previously were “Purchasers” under this Agreement and “Successor
Servicer” shall mean any Person designated as the Successor Servicer pursuant to
this Agreement and any and all Persons who previously were “Successor Servicers”
pursuant to this Agreement.
To
the
extent received by it, the Servicer shall forward to the Purchaser, or its
designee, original documents evidencing an assumption, modification,
consolidation or extension of any Mortgage Loan entered into in accordance
with
this Agreement within two (2) weeks after their execution;
provided, however, that the Servicer shall provide the
Purchaser, or its designee, with a copy, certified by the Servicer as a true
copy, of any such document submitted for recordation within two (2) weeks
after its execution, and shall promptly provide the original of any document
submitted for recordation or a copy of such document certified by the
appropriate public recording office to be a true and complete copy of the
original within two (2) weeks following receipt of the original document by
the Servicer; provided, however, that such original recorded
document or certified copy thereof shall be delivered to the Purchaser no later
than 180 days following the related Closing Date, unless there has been a
delay at the applicable recording office.
If
the
original or copy of any document submitted for recordation to the appropriate
public recording office is not delivered to the Purchaser or its designee within
180 days following the related Closing Date, the related Mortgage Loan
shall, upon the request of the Purchaser, be repurchased by the Seller at the
price and in the manner specified in Subsection 7.03. The
foregoing repurchase obligation shall not apply if the Seller cannot cause
the
Servicer to deliver such original or copy of any document submitted for
recordation to the appropriate public recording office within the specified
period due to a delay caused by the recording office in the applicable
jurisdiction; provided that (i) the Servicer shall instead deliver
a recording receipt of such recording office or, if such recording receipt
is
not available, an officer’s certificate of a servicing officer of the Servicer,
confirming that such document has been accepted for recording, and
(ii) such document is delivered within twelve (12) months of the
related Closing Date.
The
Seller shall pay all initial recording fees, if any, for the Assignments of
Mortgage and any other fees or costs in transferring all original documents
to
the Custodian or, upon written request of the Purchaser, to the Purchaser or
the
Purchaser’s designee. The Purchaser or the Purchaser’s designee shall
be responsible for recording the Assignments of Mortgage and shall be reimbursed
by the Seller for the costs associated therewith pursuant to the preceding
sentence. Notwithstanding the foregoing, the Seller agrees that each
Mortgage Loan will be a MERS Designated Mortgage Loan as of the related Closing
Date.
Subsection
6.04 MERS Designated Loans. With
respect to each MERS Designated Mortgage Loan, the Seller shall, no later than
two (2) Business Days following the related Closing Date, designate the
Purchaser as the Investor and the Custodian as custodian, and no Person shall
be
listed as Interim Funder on the MERS System. In addition, on or prior
to the related Closing Date, Seller shall provide the Custodian and the
Purchaser with a MERS Report listing the Purchaser as the Investor, the
Custodian as custodian and no Person listed as Interim
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Funder
with respect to each MERS Designated Mortgage
Loan. Notwithstanding the foregoing, the Seller agrees that all
Mortgage Loans will be MERS Designated Mortgage Loans as of the related Closing
Date.
Section
7. Representations, Warranties and Covenants;
Remedies for Breach.
Subsection
7.01 Representations and Warranties Regarding
Individual Mortgage Loans.
The
Seller hereby represents and warrants to the Purchaser that, as to each Mortgage
Loan, as of the related Closing Date for such Mortgage Loan:
(a) Mortgage
Loans as Described. The information set forth in the related
Mortgage Loan Schedule is complete, true and correct;
(b) Payments
Current. All payments required to be made up to the related
Closing Date for the Mortgage Loan under the terms of the Mortgage Note have
been made and credited. No payment required under the Mortgage Loan
is thirty (30) days or more delinquent nor has any payment under the Mortgage
Loan been thirty (30) days or more delinquent at any time since the origination
of the Mortgage Loan;
(c) No
Outstanding Charges. There are no defaults in complying with the
terms of the Mortgage, and all taxes, governmental assessments, insurance
premiums, water, sewer and municipal charges, leasehold payments or ground
rents
which previously became due and owing have been paid, or an escrow of funds
has
been established in an amount sufficient to pay for every such item which
remains unpaid and which has been assessed but is not yet due and
payable. The Seller has not advanced funds, or induced, solicited or
knowingly received any advance of funds by a party other than the Mortgagor,
directly or indirectly, for the payment of any amount required under the
Mortgage Loan, except for interest accruing from the date of the Mortgage Note
or date of disbursement of the Mortgage Loan proceeds, whichever is earlier,
to
the day which precedes by one month the related Due Date of the first
installment of principal and interest;
(d) Original
Terms Unmodified. The terms of the Mortgage Note and Mortgage
have not been impaired, waived, altered or modified in any respect, from the
date of origination except by a written instrument which has been recorded,
if
necessary to protect the interests of the Purchaser, and which has been
delivered to the Custodian or to such other Person as the Purchaser shall
designate in writing, and the terms of which are reflected in the related
Mortgage Loan Schedule. The substance of any such waiver, alteration
or modification has been approved by the issuer of any related PMI Policy and
the title insurer, if any, to the extent required by the policy, and its terms
are reflected on the related Mortgage Loan Schedule, if
applicable. No Mortgagor has been released, in whole or in part,
except in connection with an assumption agreement, approved by the issuer of
any
related PMI Policy and the title insurer, to the extent required by the policy,
and which assumption agreement is part of the Mortgage Loan File delivered
to
the Custodian or to such other Person as the Purchaser shall designate in
writing and the terms of which are reflected in the related Mortgage Loan
Schedule;
(e) No
Defenses. The Mortgage Loan is not subject to any right of
rescission, set-off, counterclaim or defense, including without limitation
the
defense of usury, nor will the
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operation
of any of the terms of the Mortgage Note or
the Mortgage, or the exercise of any right thereunder, render either the
Mortgage Note or the Mortgage unenforceable, in whole or in part, and no such
right of rescission, set-off, counterclaim or defense has been asserted with
respect thereto;
(f) Hazard
Insurance. Pursuant to the terms of the Mortgage, all buildings
or other improvements upon the Mortgaged Property are insured by a generally
acceptable insurer against loss by fire, hazards of extended coverage and such
other hazards as are provided for in the Underwriting Guidelines. If
required by the National Flood Insurance Act of 1968, as amended, or if upon
origination of the Mortgage Loan, the improvements on the Mortgaged Property
were in an area identified in the Federal Register by the Federal Emergency
Management Agency as having special flood hazards, the Mortgage Loan is covered
by a flood insurance policy meeting the requirements of the current guidelines
of the Federal Insurance Administration which policy conforms to ▇▇▇▇▇▇ ▇▇▇
and
▇▇▇▇▇▇▇ Mac requirements. The amount of such insurance shall be no
less than the least of (A) the actual unpaid principal balance of the Mortgage
Loan, (B) the full insurable value and (C) the maximum amount of insurance
which
was available under the Flood Disaster Protection Act of 1983, as
amended. Such policy was issued by an insurer acceptable under ▇▇▇▇▇▇
Mae or ▇▇▇▇▇▇▇ Mac guidelines. All individual insurance policies
contain a standard mortgagee clause naming the Seller and its successors
and assigns as mortgagee, and all premiums thereon have been
paid. The Mortgage obligates the Mortgagor thereunder to maintain the
hazard insurance policy at the Mortgagor’s cost and expense, and on the
Mortgagor’s failure to do so, authorizes the holder of the Mortgage to obtain
and maintain such insurance at such Mortgagor’s cost and expense, and to seek
reimbursement therefor from the Mortgagor. Where required by state
law or regulation, the Mortgagor has been given an opportunity to choose the
carrier of the required hazard insurance, provided the policy is not a
“master” or “blanket” hazard insurance policy covering a
condominium, or any hazard insurance policy covering the common facilities
of a
planned unit development. The hazard insurance policy is the valid
and binding obligation of the insurer, is in full force and effect, and will
be
in full force and effect and inure to the benefit of the Purchaser upon the
consummation of the transactions contemplated by this Agreement. The
Seller has not engaged in, and has no knowledge of the Mortgagor’s having
engaged in, any act or omission which would impair the coverage of any such
policy, the benefits of the endorsement provided for herein, or the validity
and
binding effect of either including, without limitation, no unlawful fee,
commission, kickback or other unlawful compensation or value of any kind has
been or will be received, retained or realized by any attorney, firm or other
person or entity, and no such unlawful items have been received, retained or
realized by the Seller;
(g) Compliance
with Applicable Laws. Any and all requirements of any federal,
state or local law including, without limitation, usury, truth-in-lending,
real
estate settlement procedures, consumer credit protection, predatory,
abusive and fair lending, equal credit opportunity and disclosure
laws applicable to the Mortgage Loan, have been complied with, the consummation
of the transactions contemplated hereby will not involve the violation of any
such laws or regulations, and the Seller shall maintain in its possession,
available for the Purchaser’s inspection, and shall deliver to the Purchaser
upon demand, evidence of compliance with all such requirements. This
representation and warranty is a Deemed Material and Adverse
Representation;
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(h) No
Satisfaction of Mortgage. The Mortgage has not been satisfied,
canceled, subordinated or rescinded, in whole or in part, and the Mortgaged
Property has not been released from the lien of the Mortgage, in whole or in
part, nor has any instrument been executed that would effect any such release,
cancellation, subordination or rescission. The Seller has not waived
the performance by the Mortgagor of any action, if the Mortgagor’s failure to
perform such action would cause the Mortgage Loan to be in default, nor has
the
Seller waived any default resulting from any action or inaction by the
Mortgagor;
(i) Type
of Mortgaged Property. With respect to a Mortgage Loan that is
not a Co-op Loan and is not secured by an interest in a leasehold estate, the
Mortgaged Property is a fee simple estate that consists of a single or
contiguous parcel of real property with a detached single family residence
erected thereon, or a two- to four-family dwelling, or an individual residential
condominium unit in a condominium project, or an individual unit in a planned
unit development (or, with respect to each Co-op Loan, an individual unit in
a
residential cooperative housing corporation); provided,
however, that any condominium unit, planned unit development or
residential cooperative housing corporation shall conform with the Underwriting
Guidelines and applicable HUD or VA requirements. No portion of the
Mortgaged Property (or underlying Mortgaged Property, in the case of a Co-op
Loan) is used for commercial purposes, and since the date of origination, no
portion of the Mortgaged Property has been used for commercial purposes;
provided, that Mortgaged Properties which contain a home office shall
not be considered as being used for commercial purposes as long as the Mortgaged
Property has not been altered for commercial purposes and is not storing any
chemicals or raw materials other than those commonly used for homeowner repair,
maintenance and/or household purposes. None of the Mortgaged
Properties are Manufactured Homes, log homes, mobile homes, geodesic domes
or
other unique property types. This representation and warranty is a
Deemed Material and Adverse Representation;
(j) Valid
First or Second Lien. The Mortgage is a valid, subsisting,
enforceable and perfected, first lien (with respect to a First Lien Loan) or
second lien (with respect to a Second Lien Loan) on the Mortgaged Property,
including all buildings and improvements on the Mortgaged Property and all
installations and mechanical, electrical, plumbing, heating and air conditioning
systems located in or annexed to such buildings, and all additions, alterations
and replacements made at any time with respect to the foregoing. The
lien of the Mortgage is subject only to:
(i) with
respect to a Second Lien Loan only, the lien on the first mortgage on the
Mortgaged Property;
(ii) the
lien of current real property taxes and assessments not yet due and
payable;
(iii) covenants,
conditions and restrictions, rights of way, easements and other matters of
the
public record as of the date of recording acceptable to prudent mortgage lending
institutions generally and specifically referred to in the lender’s title
insurance policy delivered to the originator of the Mortgage Loan and
(a) specifically referred to or otherwise considered in the appraisal made
for the originator of the Mortgage Loan or
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(b) which
do not adversely affect the Appraised
Value of the Mortgaged Property set forth in such appraisal; and
(iv) other
matters to which like properties are commonly subject which do not materially
interfere with the benefits of the security intended to be provided by the
Mortgage or the use, enjoyment, value or marketability of the related Mortgaged
Property.
Any
security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates a valid,
subsisting, enforceable and perfected first lien (with respect to a First Lien
Loan) or second lien (with respect to a Second Lien Loan) and first priority
(with respect to a First Lien Loan) or second priority (with respect to a Second
Lien Loan) security interest on the property described therein and the Seller
has full right to sell and assign the same to the Purchaser.
With
respect to any Co-op Loan, the related Mortgage is a valid, subsisting and
enforceable first priority security interest on the related cooperative shares
securing the Mortgage Note, subject only to (a) liens of the related
residential cooperative housing corporation for unpaid assessments representing
the Mortgagor’s pro rata share of the related residential cooperative housing
corporation’s payments for its blanket mortgage, current and future real
property taxes, insurance premiums, maintenance fees and other assessments
to
which like collateral is commonly subject and (b) other matters to which
like collateral is commonly subject which do not materially interfere with
the
benefits of the security interest intended to be provided by the related
Security Agreement;
(k) Validity
of Mortgage Documents. The Mortgage Note and the Mortgage and any
other agreement executed and delivered by a Mortgagor in connection with a
Mortgage Loan are genuine, and each is the legal, valid and binding obligation
of the maker thereof enforceable in accordance with its terms. All
parties to the Mortgage Note, the Mortgage and any other such related agreement
had legal capacity to enter into the Mortgage Loan and to execute and deliver
the Mortgage Note, the Mortgage and any such agreement, and the Mortgage Note,
the Mortgage and any other such related agreement have been duly and properly
executed by other such related parties. No fraud, error, omission,
misrepresentation, negligence or similar occurrence with respect to a Mortgage
Loan has taken place on the part of the Seller in connection with the
origination of the Mortgage Loan or in the application of any insurance in
relation to such Mortgage Loan. No fraud, error, omission,
misrepresentation, negligence or similar occurrence with respect to a Mortgage
Loan has taken place on the part of any Person, including without limitation,
the Mortgagor, any appraiser, any builder or developer, or any other party
involved in the origination of the Mortgage Loan or in the application for
any
insurance in relation to such Mortgage Loan. The Seller has reviewed
all of the documents constituting the Servicing File and has made such inquiries
as it deems necessary to make and confirm the accuracy of the representations
set forth herein;
(l) Full
Disbursement of Proceeds. The Mortgage Loan has been closed and
the proceeds of the Mortgage Loan have been fully disbursed and there is no
requirement for future advances thereunder, and any and all requirements as
to
completion of any on-site or off-site improvement and as to disbursements of
any
escrow funds therefor have been complied
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with. All
costs, fees and expenses
incurred in making or closing the Mortgage Loan and the recording of the
Mortgage were paid, and the Mortgagor is not entitled to any refund of any
amounts paid or due under the Mortgage Note or Mortgage;
(m) Ownership. The
Seller is the sole owner of record and holder of the Mortgage Loan and the
indebtedness evidenced by each Mortgage Note and upon the sale of the Mortgage
Loans to the Purchaser, the Seller will retain the Mortgage Files or any part
thereof with respect thereto not delivered to the Custodian, the Purchaser
or
the Purchaser’s designee, in trust only for the purpose of servicing and
supervising the servicing of each Mortgage Loan. The Mortgage Loan is
not assigned or pledged, and the Seller has good, indefeasible and marketable
title thereto, and has full right to transfer and sell the Mortgage Loan to
the
Purchaser free and clear of any encumbrance, equity, participation interest,
lien, pledge, charge, claim or security interest, and has full right and
authority subject to no interest or participation of, or agreement with, any
other party, to sell and assign each Mortgage Loan pursuant to this Agreement
and following the sale of each Mortgage Loan, the Purchaser will own such
Mortgage Loan free and clear of any encumbrance, equity, participation interest,
lien, pledge, charge, claim or security interest, except as may be required
of
the Seller in its capacity as servicer of such Mortgage Loan prior to the
related Transfer Date. The Seller intends to relinquish all rights to
possess, control and monitor the Mortgage Loan, except as may be required of
the
Seller in its capacity as Servicer of such Mortgage Loan. After the
related Closing Date, the Seller will have no right to modify or alter the
terms
of the sale of the Mortgage Loan and the Seller will have no obligation or
right
to repurchase the Mortgage Loan, except as provided in this
Agreement;
(n) Doing
Business. All parties which have had any interest in the Mortgage
Loan, whether as mortgagee, assignee, pledgee or otherwise, are (or, during
the
period in which they held and disposed of such interest, were) (1) in
compliance with any and all applicable licensing requirements of the laws of
the
state wherein the Mortgaged Property is located, and (2) either
(i) organized under the laws of such state, or (ii) qualified to do
business in such state, or (iii) a federal savings and loan association, a
savings bank or a national bank having a principal office in such state, or
(3) not doing business in such state;
(o) CLTV,
LTV, PMI Policy. No Mortgage Loan that is a Second Lien Loan has
a CLTV greater than 100%. No Mortgage Loan has an LTV greater than
100%. Any Mortgage Loan that had at the time of origination an LTV in
excess of 80% is insured as to payment defaults by a PMI Policy which will
remain in effect until such time as it is cancelled in accordance with its
terms
or under applicable law. Any PMI Policy in effect covers the related
Mortgage Loan for the life of such Mortgage Loan (or until such earlier time
as
the PMI Policy may no longer be required by the terms of the related
Mortgage). All provisions of such PMI Policy have been and are being
complied with, such policy is in full force and effect, and all premiums due
thereunder have been paid. No action, inaction, or event has occurred
and no state of facts exists that has, or will result in the exclusion from,
denial of, or defense to coverage. Any Mortgage Loan subject to a PMI
Policy obligates the Mortgagor thereunder to maintain the PMI Policy and to
pay
all premiums and charges in connection therewith. The Mortgage
Interest Rate for the Mortgage Loan as set forth on the related Mortgage Loan
Schedule is net of any such insurance premium if the related PMI Policy is
lender-paid;
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(p) Title Insurance. With
respect to a Mortgage Loan which is not a Co-op Loan, the Mortgage Loan is
covered by an ALTA lender’s title insurance policy or other generally acceptable
form of policy or insurance acceptable under the Underwriting Guidelines or
to
▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac, as applicable, and each such title insurance policy
is issued by a title insurer acceptable under the Underwriting Guidelines or
under ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac guidelines, as applicable, and qualified to
do
business in the jurisdiction where the Mortgaged Property is located, insuring
the Seller, its successors and assigns, as to the first (with respect to a
First
Lien Loan) or second (with respect to a Second Lien Loan) priority lien of
the
Mortgage in the original principal amount of the Mortgage Loan (or to the extent
a Mortgage Note provides for negative amortization, the maximum amount of
negative amortization in accordance with the Mortgage), subject only to the
exceptions contained in clauses (i) and (ii) of clause (j) of this
Subsection 7.02, and in the case of Adjustable Rate Mortgage Loans,
against any loss by reason of the invalidity or unenforceability of the lien
resulting from the provisions of the Mortgage providing for adjustment to the
Mortgage Interest Rate and Monthly Payment. Where required by state
law or regulation, the Mortgagor has been given the opportunity to choose the
carrier of the required mortgage title insurance. Additionally, such
lender’s title insurance policy affirmatively insures ingress and egress, and
against encroachments by or upon the Mortgaged Property or any interest
therein. The Seller, its successor and assigns, are the sole insureds
of such lender’s title insurance policy, and such lender’s title insurance
policy is valid and remains in full force and effect and will be in force and
effect upon the consummation of the transactions contemplated by this
Agreement. No claims have been made under such lender’s title
insurance policy, and no prior holder of the related Mortgage, including the
Seller, has done, by act or omission, anything which would impair the coverage
of such lender’s title insurance policy, including without limitation, no
unlawful fee, commission, kickback or other unlawful compensation or value
of
any kind has been or will be received, retained or realized by any attorney,
firm or other person or entity, and no such unlawful items have been received,
retained or realized by the Seller;
(q) No
Defaults. Other than payments due but not yet thirty (30) days or
more delinquent, there is no default, breach, violation or event which would
permit acceleration existing under the Mortgage or the Mortgage Note and no
event which, with the passage of time or with notice and the expiration of
any
grace or cure period, would constitute a default, breach, violation or event
which would permit acceleration, and neither the Seller nor any of its
affiliates nor any of their respective predecessors, have waived any default,
breach, violation or event which would permit acceleration;
(r) No
Mechanics’ Liens. There are no mechanics’ or similar liens or
claims which have been filed for work, labor or material (and no rights are
outstanding that under law could give rise to such liens) affecting the related
Mortgaged Property which are or may be liens prior to, or equal or coordinate
with, the lien of the related Mortgage;
(s) Location
of Improvements; No Encroachments. All improvements which were
considered in determining the Appraised Value of the Mortgaged Property lay
wholly within the boundaries and building restriction lines of the Mortgaged
Property, and no improvements on adjoining properties encroach upon the
Mortgaged Property. No improvement located on or being part of the
Mortgaged Property is in violation of any applicable zoning law or
regulation;
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(t) Origination;
Payment Terms. At the time the Mortgage Loan was originated
either (a) the originator was a mortgagee approved by the Secretary of
Housing and Urban Development pursuant to Sections 203 and 211 of the
National Housing Act, or a savings and loan association, a savings bank, a
commercial bank, or other similar banking institution which is supervised and
examined by a federal or state authority or (b) the following requirements
have been met with respect to the Mortgage Loan: Seller meets the
requirements set forth in clause (a), and (i) such Mortgage Loan was
underwritten in accordance with standards established by Seller, using
application forms and related credit documents approved by Seller,
(ii) Seller approved each application and the related credit documents
before a commitment by the correspondent was issued, and no such commitment
was
issued until Seller agreed to fund such Mortgage Loan, (iii) the closing
documents for such Mortgage Loan were prepared on forms approved by Seller,
and
(iv) such Mortgage Loan was purchased by Seller at closing or soon
thereafter. Principal payments on the Mortgage Loan commenced no more
than seventy days after funds were disbursed in connection with the
Mortgage Loan. The Mortgage Interest Rate as well as, in the case of
an Adjustable Rate Mortgage Loan, the Lifetime Rate Cap and the Periodic Rate
Cap as set forth on the related Mortgage Loan Schedule. Unless
specified on the related Mortgage Loan Schedule as an interest-only loan or
a
Balloon Mortgage Loan, the Mortgage Note is payable in equal monthly
installments of principal and interest, which installments of interest, with
respect to Adjustable Rate Mortgage Loans, are subject to change due to the
adjustments to the Mortgage Interest Rate on each Interest Rate Adjustment
Date,
with interest calculated and payable in arrears, sufficient to amortize the
Mortgage Loan fully by the stated maturity date, over an original term of not
more than thirty (30) years from commencement of
amortization. Unless otherwise specified on the related Mortgage Loan
Schedule, the Mortgage Loan is payable on the first day of each
month. The Mortgage Loan does not provide for amortization beyond its
scheduled maturity date. The Mortgage Loan does not require a balloon
payment on its stated maturity date;
(u) Customary
Provisions. The Mortgage contains customary and enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the realization against the Mortgaged Property of the benefits
of
the security provided thereby, including, (i) in the case of a Mortgage
designated as a deed of trust, by trustee’s sale, and (ii) otherwise by
judicial foreclosure. Upon default by a Mortgagor on a Mortgage Loan
and foreclosure on, or trustee’s sale of, the Mortgaged Property pursuant to the
proper procedures, the holder of the Mortgage Loan will be able to deliver
good
and merchantable title to the Mortgaged Property. There is no
homestead or other exemption available to a Mortgagor which would interfere
with
the right to sell the Mortgaged Property at a trustee’s sale or the right to
foreclose the Mortgage, subject to applicable federal and state laws and
judicial precedent with respect to bankruptcy and right of redemption or similar
law;
(v) Conformance
with Agency and Underwriting Guidelines. The Mortgage Loan was
underwritten in accordance with the Underwriting Guidelines (a copy of which
is
attached to each related Assignment and Conveyance as
Exhibit C). The Mortgage Note and Mortgage are on forms
acceptable to ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ Mae (and FHA or VA, if applicable) and
no
representations have been made to a Mortgagor that are inconsistent with the
mortgage instruments used;
-29-
(w) Occupancy
of the Mortgaged Property. The Mortgaged Property is lawfully
occupied under applicable law. All inspections, licenses and
certificates required to be made or issued with respect to all occupied portions
of the Mortgaged Property and, with respect to the use and occupancy of the
same, including but not limited to certificates of occupancy and fire
underwriting certificates, have been made or obtained from the appropriate
authorities. Unless otherwise specified on the related Mortgage Loan
Schedule, the Mortgagor represented at the time of origination of the Mortgage
Loan that the Mortgagor would occupy the Mortgaged Property as the Mortgagor’s
primary residence;
(x)
No Additional Collateral. The Mortgage Note is not and has not
been secured by any collateral except the lien of the corresponding Mortgage
and
the security interest of any applicable security agreement or chattel mortgage
referred to in clause (j) above;
(y)
Deeds of Trust. In the event the Mortgage constitutes a deed
of trust, a trustee, authorized and duly qualified under applicable law to
serve
as such, has been properly designated and currently so serves and is named
in
the Mortgage, and no fees or expenses are or will become payable by the
Purchaser to the trustee under the deed of trust, except in connection with
a
trustee’s sale after default by the Mortgagor;
(z)
Acceptable Investment. There are no circumstances or
conditions with respect to the Mortgage, the Mortgaged Property, the Mortgagor,
the Mortgage File or the Mortgagor’s credit standing that can reasonably be
expected to cause private institutional investors who invest in prime mortgage
loans similar to the Mortgage Loan to regard the Mortgage Loan as an
unacceptable investment;
(aa) Delivery
of Mortgage Documents. The Mortgage Note, the Mortgage, the
Assignment of Mortgage and any other documents required to be delivered under
this Agreement for each Mortgage Loan have been delivered to the
Custodian. The Seller is in possession of a complete, true and
accurate Mortgage File in compliance with Exhibit 2 attached hereto,
except for such documents the originals of which have been delivered to the
Custodian;
(bb) Transfer
of Mortgage Loans. The Assignment of Mortgage (except with
respect to any Mortgage that has been recorded in the name of MERS or its
designee) with respect to each Mortgage Loan is in recordable form and is
acceptable for recording under the laws of the jurisdiction in which the
Mortgaged Property is located;
(cc) Due-On-Sale. With
respect to each Fixed Rate Mortgage Loan, the Mortgage contains an enforceable
provision for the acceleration of the payment of the unpaid principal balance
of
the Mortgage Loan in the event that the Mortgaged Property is sold or
transferred without the prior written consent of the Mortgagee
thereunder;
(dd) Assumability. With
respect to each Adjustable Rate Mortgage Loan, the Mortgage Loan Documents
provide that after the related first Interest Rate Adjustment Date, a related
Mortgage Loan may only be assumed if the party assuming such Mortgage Loan
meets
certain credit requirements stated in the Mortgage Loan Documents;
(ee) No
Buydown Provisions; No Graduated Payments or Contingent
Interests. The Mortgage Loan does not contain provisions pursuant
to which Monthly Payments are paid or
-30-
partially
paid with funds deposited in any separate account established by the Seller,
the
Mortgagor, or anyone on behalf of the Mortgagor, or paid by any source other
than the Mortgagor nor does it contain any other similar provisions which may
constitute a “buydown” provision. The Mortgage Loan is not a
graduated payment mortgage loan and the Mortgage Loan does not have a shared
appreciation or other contingent interest feature;
(ff) Consolidation
of Future Advances. Any future advances made to the Mortgagor
prior to the applicable Cut-off Date have been consolidated with the outstanding
principal amount secured by the Mortgage, and the secured principal amount,
as
consolidated, bears a single interest rate and single repayment
term. The lien of the Mortgage securing the consolidated principal
amount is expressly insured as having first (with respect to a First Lien Loan)
or second (with respect to a Second Lien Loan) lien priority by a title
insurance policy, an endorsement to the policy insuring the Mortgagee’s
consolidated interest or by other title evidence acceptable to ▇▇▇▇▇▇ ▇▇▇ and
▇▇▇▇▇▇▇ Mac. The consolidated principal amount does not exceed the
original principal amount of the Mortgage Loan;
(gg) Mortgaged
Property Undamaged; No Condemnation Proceedings. There is no
proceeding pending or threatened for the total or partial condemnation of the
Mortgaged Property. The Mortgaged Property is undamaged by waste,
fire, earthquake or earth movement, windstorm, flood, tornado or other casualty
so as to affect adversely the value of the Mortgaged Property as security for
the Mortgage Loan or the use for which the premises were intended and each
Mortgaged Property is in good repair. There have not been any
condemnation proceedings with respect to the Mortgaged Property;
(hh) Collection
Practices; Escrow Deposits; Interest Rate Adjustments. The
origination, servicing and collection practices used by the Seller with respect
to the Mortgage Loan have been in all respects in compliance with Accepted
Servicing Practices, applicable laws and regulations, and have been in all
respects legal and proper. With respect to escrow deposits and Escrow
Payments, all such payments are in the possession of, or under the control
of,
the Seller and there exist no deficiencies in connection therewith for which
customary arrangements for repayment thereof have not been made. All
Escrow Payments have been collected in full compliance with state and federal
law and the provisions of the related Mortgage Note and Mortgage. An
escrow of funds is not prohibited by applicable law and has been established
in
an amount sufficient to pay for every item that remains unpaid and has been
assessed but is not yet due and payable. No escrow deposits or Escrow
Payments or other charges or payments due the Seller have been capitalized
under
the Mortgage or the Mortgage Note. All Mortgage Interest Rate
adjustments have been made in strict compliance with state and federal law
and
the terms of the related Mortgage and Mortgage Note on the related Interest
Rate
Adjustment Date. If, pursuant to the terms of the Mortgage Note,
another index was selected for determining the Mortgage Interest Rate, the
same
index was used with respect to each Mortgage Note which required a new index
to
be selected, and such selection did not conflict with the terms of the related
Mortgage Note. The Seller executed and delivered any and all notices
required under applicable law and the terms of the related Mortgage Note and
Mortgage regarding the Mortgage Interest Rate and the Monthly Payment
adjustments. Any interest required to be paid pursuant to state,
federal and local law has been properly paid and credited;
(ii) [Reserved;]
-31-
(jj) Other
Insurance Policies; No Defense to Coverage. No action, inaction
or event has occurred and no state of facts exists or has existed on or prior
to
the Closing Date that has resulted or will result in the exclusion from, denial
of, or defense to coverage under any applicable hazard insurance policy, PMI
Policy or bankruptcy bond (including, without limitation, any exclusions,
denials or defenses which would limit or reduce the availability of the timely
payment of the full amount of the loss otherwise due thereunder to the insured),
irrespective of the cause of such failure of coverage. In connection
with the placement of any such insurance, no commission, fee, or other
compensation has been or will be received by the Seller or by any officer,
director, or employee of the Seller or any designee of the Seller or any
corporation in which the Seller or any officer, director, or employee had a
financial interest at the time of placement of such insurance;
(kk) No
Violation of Environmental Laws. To the best of the Seller’s
knowledge, there is no pending action or proceeding directly involving the
Mortgaged Property in which compliance with any environmental law, rule or
regulation is an issue; there is no violation of any environmental law, rule
or
regulation with respect to the Mortgage Property; and nothing further remains
to
be done to satisfy in full all requirements of each such law, rule or regulation
constituting a prerequisite to use and enjoyment of said property;
(ll) Servicemembers
Civil Relief Act. The Mortgagor has not notified the Seller, and
the Seller has no knowledge of any relief requested or allowed to the Mortgagor
under the Servicemembers Civil Relief Act as the same may be amended from time
to time or other similar state statute;
(mm) Appraisal. The
Mortgage File contains an appraisal of the related Mortgaged Property signed
prior to the origination of the Mortgage Loan application by a Qualified
Appraiser, duly appointed by the Seller, who had no interest, direct or indirect
in the Mortgaged Property or in any loan made on the security thereof, and
whose
compensation is not affected by the approval or disapproval of the Mortgage
Loan, and the appraisal and appraiser both satisfy the requirements of ▇▇▇▇▇▇
▇▇▇ or ▇▇▇▇▇▇▇ Mac (and FHA or VA, if applicable) as applicable, or
Title XI of FIRREA and the regulations promulgated thereunder, all as in
effect on the date the Mortgage Loan was originated;
(nn) Disclosure
Materials. To the extent required by applicable law, the
Mortgagor has executed a statement to the effect that the Mortgagor has received
all disclosure materials required by, and the Seller has complied with, all
applicable law with respect to the making of the Mortgage Loans. The
Seller shall maintain such statement in the Mortgage File;
(oo) Construction
or Rehabilitation of Mortgaged Property. No Mortgage Loan was
made in connection with the construction (other than a “construct-to-perm” loan)
or rehabilitation of a Mortgaged Property or facilitating the trade-in or
exchange of a Mortgaged Property;
(pp) Escrow
Analysis. If applicable, with respect to each Mortgage Loan, the
Seller has within the last twelve months (unless such Mortgage was originated
within such twelve month period) analyzed the required Escrow Payments for
each
Mortgage and adjusted the amount of such payments so that, assuming all required
payments are timely made, any
-32-
deficiency
will be eliminated on or before the first anniversary of such analysis, or
any
overage will be refunded to the Mortgagor, in accordance with RESPA and any
other applicable law;
(qq) Credit
Information. As to each consumer report (as defined in the Fair
Credit Reporting Act, Public Law 91-508) or other credit information furnished
by the Seller to the Purchaser, that Seller has full right and authority and
is
not precluded by law or contract from furnishing such information to the
Purchaser and the Purchaser is not precluded from furnishing the same to any
subsequent or prospective purchaser of such Mortgage. The Seller has
and shall in its capacity as servicer, for each Mortgage Loan, fully furnished,
in accordance with the Fair Credit Reporting Act and its implementing
regulations, accurate and complete information (e.g., favorable and unfavorable)
on its borrower credit files to Equifax, Experian and Trans Union Credit
Information Company (three of the credit repositories), on a monthly
basis. This representation and warranty is a Deemed Material and
Adverse Representation;
(rr) Leaseholds. If
the Mortgage Loan is secured by a leasehold estate, (1) the ground lease is
assignable or transferable; (2) the ground lease will not terminate earlier
than five years after the maturity date of the Mortgage Loan; (3) the
ground lease does not provide for termination of the lease in the event of
lessee’s default without the Mortgagee being entitled to receive written notice
of, and a reasonable opportunity to cure the default; (4) the ground lease
permits the mortgaging of the related Mortgaged Property; (5) the ground
lease protects the Mortgagee’s interests in the event of a property
condemnation; (6) all ground lease rents, other payments, or assessments
that have become due have been paid; and (7) the use of leasehold estates
for residential properties is a widely accepted practice in the jurisdiction
in
which the Mortgaged Property is located;
(ss) Prepayment
Penalty. Each Mortgage Loan that is subject to a Prepayment
Penalty as provided in the related Mortgage Note is identified on the related
Mortgage Loan Schedule. With respect to each Mortgage Loan that has a
Prepayment Penalty feature, each such Prepayment Penalty is enforceable and
will
be enforced by the Seller during the period the Seller is acting as Servicer
for
the benefit of the Purchaser, and each Prepayment Penalty is permitted pursuant
to federal, state and local law. Each such Prepayment Penalty is in
an amount not more than the maximum amount permitted under applicable law and
no
such Prepayment Penalty may provide for a term in excess of five (5) years
with
respect to Mortgage Loans originated prior to October, 1, 2002. With
respect to Mortgage Loans originated on or after October 1, 2002, the duration
of the Prepayment Penalty period shall not exceed three (3) years from the
date
of the Mortgage Note unless the Mortgage Loan was modified to reduce the
Prepayment Penalty period to no more than three (3) years from the date of
the
related Mortgage Note and the Mortgagor was notified in writing of such
reduction in Prepayment Penalty period. With respect to any Mortgage
Loan that contains a provision permitting imposition of a Prepayment Penalty
upon a prepayment prior to maturity: (i) the Mortgage Loan provides some benefit
to the Mortgagor (e.g., a rate or fee reduction) in exchange for
accepting such Prepayment Penalty, (ii) the Mortgage Loan’s originator had a
written policy of offering the Mortgagor or requiring third-party brokers to
offer the Mortgagor, the option of obtaining a mortgage loan that did not
require payment of such a penalty, and (iii) the Prepayment Penalty was
adequately disclosed to the Mortgagor in the mortgage loan documents pursuant
to
applicable state, local and federal law. This representation and
warranty is a Deemed Material and Adverse Representation;
-33-
(tt) Predatory
Lending Regulations. No Mortgage Loan is (a) a High Cost
Loan or Covered Loan, (b) a “high cost” loan under Section 32 of the Home
Ownership and Equity Protection Act of 1994, as amended, or (c) a “high
cost home,” “threshold,” “covered,” “high risk home” or “predatory” or similar
loan under any other applicable state, federal or local law (or a similarly
classified loan using different terminology under a law imposing heightened
regulatory scrutiny or additional legal liability for residential mortgage
loans
having high interest rates, points and/or fees); provided that any Mortgage
Loan
secured by a Mortgaged Property in Illinois characterized as a “threshold” loan
shall not be a “high cost” loan unless it is characterized as “predatory” under
applicable local law. This representation and warranty is a Deemed Material
and
Adverse Representation;
(uu) Single-premium
credit life insurance policy. No Mortgagor was required to
purchase any single premium credit insurance policy (e.g., life, mortgage,
disability, property, accident, unemployment or health insurance product) or
debt cancellation agreement as a condition of obtaining the extension of
credit. No Mortgagor obtained a prepaid single-premium credit
insurance policy (e.g., life, mortgage, disability, property, accident,
unemployment, mortgage or health insurance) in connection with the origination
of the Mortgage Loan. No proceeds from any Mortgage Loan were used to
purchase single premium credit insurance policies or debt cancellation
agreements as part of the origination of, or as a condition to closing, such
Mortgage Loan. This representation and warranty is a Deemed Material
and Adverse Representation;
(vv) Qualified
Mortgage. The Mortgage Loan is a qualified mortgage under
Section 860G(a)(3) of the Code (which relates to REMICS);
(ww) Tax
Service Contract. . Each Mortgage Loan is covered by a
paid in full, life of loan, tax service contract issued by First American,
and
such contract is transferable. If such a transferable tax service
contract is not in place, then a placement fee of seventy two dollars ($72.00)
will apply for each such Mortgage Loan;
(xx) Origination. No
predatory or deceptive lending practices, including, without limitation, the
extension of credit without regard to the ability of the Mortgagor to repay
and
the extension of credit which has no apparent benefit to the Mortgagor, were
employed in the origination of the Mortgage Loan;
(yy) Recordation. Each
original Mortgage was recorded and all subsequent assignments of the original
Mortgage (other than the assignment to the Purchaser) have been recorded in
the
appropriate jurisdictions wherein such recordation is necessary to perfect
the
lien thereof as against creditors of the Seller, or is in the process of being
recorded;
(zz) Co-op
Loans. With respect to a Mortgage Loan that is a Co-op Loan, the
stock that is pledged as security for the Mortgage Loan is held by a person
as a
tenant-stockholder (as defined in Section 216 of the Code) in a cooperative
housing corporation (as defined in Section 216 of the Code);
(aaa) Mortgagor
Bankruptcy. As of the related Closing Date, the Mortgagor has not
filed a bankruptcy petition or has not become the subject of involuntary
bankruptcy proceedings or has not consented to the filing of a bankruptcy
-34-
proceeding
against it or to having a receiver being
appointed in respect of the related Mortgaged Property;
(bbb) No
Prior Offer. If the Mortgage Loan has previously been offered for
sale such Mortgage Loan was not rejected from being purchased by such offeree
as
a result of the offeree’s due diligence, unless such deficiency has been
cured;
(ccc) No
Arbitration. No Mortgagor with respect to any Mortgage Loans
originated on or after August 1, 2004 agreed to submit to arbitration to
resolve any dispute arising out of or relating in any way to the Mortgage Loan
transaction. This representation and warranty is a Deemed Material
and Adverse Representation;
(ddd) Flood
Service Contract. Each Mortgage Loan is covered by a paid in
full, life of loan, flood service contract issued by either First American
Flood
Data Services or Fidelity, and such contract is transferable. If no
such flood service contract is in place, or if such flood service contract
is
issued by an insurer other than First American Flood Data Services or Fidelity,
then on the related Closing Date, the Seller shall remit to the Purchaser a
placement fee of seven dollars and fifty cents ($7.50) for each such Mortgage
Loan;
(eee) Origination
Practices/No Steering. The Mortgagor was not encouraged or required to
select a mortgage loan product offered by the Mortgage Loan’s originator which
is a higher cost product designed for less creditworthy borrowers, unless at
the
time of the Mortgage Loan’s origination, such Mortgagor did not qualify taking
into account such facts as, without limitation, the Mortgage Loan’s requirements
and the Mortgagor’s credit history, income, assets and liabilities and
debt-to-income ratios for a lower-cost credit product then offered by the
Mortgage Loan’s originator or any affiliate of the Mortgage Loan’s
originator. If, at the time of loan application, the Mortgagor may
have qualified for a lower-cost credit product then offered by any mortgage
lending affiliate of the Mortgage Loan’s originator, the Mortgage Loan’s
originator referred the Mortgagor’s application to such affiliate for
underwriting consideration. For a Mortgagor who seeks financing
through a Mortgage Loan originator’s higher-priced subprime lending channel, the
Mortgagor was directed towards or offered the Mortgage Loan originator’s
standard mortgage line if the Mortgagor was able to qualify for one of the
standard products. This representation and warranty is a Deemed
Material and Adverse Representation;
(fff) Underwriting
Methodology. The methodology used in underwriting the extension
of credit for each Mortgage Loan does not rely solely on the extent of the
Mortgagor’s equity in the collateral as the principal determining factor in
approving such extension of credit. The methodology employed objective criteria
such as the Mortgagor’s income, assets and liabilities, to the proposed mortgage
payment and, based on such methodology, the Mortgage Loan’s originator made a
reasonable determination that at the time of origination the Mortgagor had
the
ability to make timely payments on the Mortgage Loan. Such
underwriting methodology confirmed that at the time of origination
(application/approval) the Mortgagor had a reasonable ability to make timely
payments on the Mortgage Loan. This representation and warranty is a
Deemed Material and Adverse Representation;
(ggg) Points
and Fees. No Mortgagor was charged “points and fees” (whether or
not financed) in an amount greater than (i) $1,000, or (ii) 5% of the
principal amount of such
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Mortgage
Loan, whichever is greater. For
purposes of this representation, such 5% limitation is calculated in accordance
with ▇▇▇▇▇▇ Mae’s anti-predatory lending requirements as set forth in the ▇▇▇▇▇▇
▇▇▇ Guides and “points and fees” (x) include origination, underwriting,
broker and finder fees and charges that the mortgagee imposed as a condition
of
making the Mortgage Loan, whether they are paid to the mortgagee or a third
party; and (y) exclude bona fide discount points, fees paid for
actual services rendered in connection with the origination of the Mortgage
Loan
(such as attorneys’ fees, notaries fees and fees paid for property appraisals,
credit reports, surveys, title examinations and extracts, flood and tax
certifications, and home inspections), the cost of mortgage insurance or
credit-risk price adjustments, the costs of title, hazard, and flood insurance
policies, state and local transfer taxes or fees, escrow deposits for the future
payment of taxes and insurance premiums, and other miscellaneous fees and
charges which miscellaneous fees and charges, in total, do not exceed 0.25%
of
the principal amount of such Mortgage Loan. This representation and
warranty is a Deemed Material and Adverse Representation;
(hhh) Fees
Charges. All points, fees and charges (including finance charges)
and whether or not financed, assessed, collected or to be collected in
connection with the origination and servicing of each Mortgage Loan have been
disclosed in writing to the Mortgagor in accordance with applicable state and
federal law and regulation. This representation and warranty is a
Deemed Material and Adverse Representation;
(iii) Balloon
Mortgage Loans. No Balloon Mortgage Loan has an original stated
maturity of less than seven (7) years;
(jjj) Insurance
Policy in Connection With Origination. In connection with the
origination of the mortgage loan, the borrower did not obtain a prepaid
single-premium credit life, credit disability, credit unemployment or credit
property insurance policy;
(kkk) Negative
Amortization. Unless otherwise disclosed in the Mortgage Loan
Schedule, no Mortgage Loan is subject to negative amortization; and
(lll) Second
Lien Loans. With respect to each Second Lien Loan:
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(i)
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No
Negative Amortization of Related First Lien Loan. The
related first lien loan does not permit negative
amortization;
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(ii)
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Request
for Notice; No Consent Required. Where required or
customary in the jurisdiction in which the Mortgaged Property is
located,
the original lender has filed for record a request for notice of
any
action by the related senior lienholder, and the Seller has notified
such
senior lienholder in writing of the existence of the Second Lien
Loan and
requested notification of any action to be taken against the Mortgagor
by
such senior lienholder. Either (a) no consent for the Second
Lien Loan is required by the holder of the related first lien loan
or (b)
such consent has been obtained and is contained in the related Mortgage
File;
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(iii)
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No
Default Under First Lien. To the best of Seller’s
knowledge, the related first lien loan is in full force and effect,
and
there is no default lien, breach, violation or event which would
permit
acceleration existing under
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such
first lien mortgage or mortgage note, and no event which, with
the passage
of time or with notice and the expiration of any grace or cure
period,
would constitute a default, breach, violation or event which would
permit
acceleration under such first lien
loan;
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(iv)
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Right
to Cure First Lien. The related first lien mortgage
contains a provision which provides for giving notice of default
or breach
to the mortgagee under the Mortgage Loan and allows such mortgagee
to cure
any default under the related first lien mortgage;
and
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(v)
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Principal
Residence. The related Mortgaged Property is the
Mortgagor’s principal residence. This representation and
warranty is a Deemed Material and Adverse
Representation.
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Subsection
7.02 Seller
Representations. The
Seller hereby represents and warrants to the Purchaser that, as of the related
Closing Date:
(a) Due
Organization and Authority. The Seller is a national banking
association validly existing, and in good standing under the laws of its
jurisdiction of incorporation or formation and has all licenses necessary to
carry on its business as now being conducted and is licensed, qualified and
in
good standing in the states where the Mortgaged Property is located if the
laws
of such state require licensing or qualification in order to conduct business
of
the type conducted by the Seller. The Seller has corporate power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder; the execution, delivery and performance of this Agreement (including
all instruments of transfer to be delivered pursuant to this Agreement) by
the
Seller and the consummation of the transactions contemplated hereby have been
duly and validly authorized; this Agreement has been duly executed and delivered
and constitutes the valid, legal, binding and enforceable obligation of the
Seller, except as enforceability may be limited by (i) bankruptcy,
insolvency, liquidation, receivership, moratorium, reorganization or other
similar laws affecting the enforcement of the rights of creditors and
(ii) general principles of equity, whether enforcement is sought in a
proceeding in equity or at law. All requisite corporate action has
been taken by the Seller to make this Agreement valid and binding upon the
Seller in accordance with its terms;
(b) No
Consent Required. No consent, approval, authorization or order is
required for the transactions contemplated by this Agreement from any court,
governmental agency or body, or federal or state regulatory authority having
jurisdiction over the Seller is required or, if required, such consent,
approval, authorization or order has been or will, prior to the related Closing
Date, be obtained;
(c) Ordinary
Course of Business. The consummation of the transactions
contemplated by this Agreement are in the ordinary course of business of the
Seller, and the transfer, assignment and conveyance of the Mortgage Notes and
the Mortgages by the Seller pursuant to this Agreement are not subject to the
bulk transfer or any similar statutory provisions in effect in any applicable
jurisdiction;
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(d) No
Conflicts. Neither the execution and delivery of this Agreement,
the acquisition or origination of the Mortgage Loans by the Seller, the sale
of
the Mortgage Loans to the Purchaser, the consummation of the transactions
contemplated hereby, nor the fulfillment of or compliance with the terms and
conditions of this Agreement, will conflict with or result in a breach of any
of
the terms, conditions or provisions of the Seller’s charter or by-laws or any
legal restriction or any agreement or instrument to which the Seller is now
a
party or by which it is bound, or constitute a default or result in an
acceleration under any of the foregoing, or result in the violation of any
law,
rule, regulation, order, judgment or decree to which the Seller or its property
is subject, or result in the creation or imposition of any lien, charge or
encumbrance that would have an adverse effect upon any of its properties
pursuant to the terms of any mortgage, contract, deed of trust or other
instrument, or impair the ability of the Purchaser to realize on the Mortgage
Loans, impair the value of the Mortgage Loans, or impair the ability of the
Purchaser to realize the full amount of any insurance benefits accruing pursuant
to this Agreement;
(e) No
Litigation Pending. There is no action, suit, proceeding or
investigation pending or threatened against the Seller, before any court,
administrative agency or other tribunal asserting the invalidity of this
Agreement, seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or which, either in any one instance or in the
aggregate, may result in any material adverse change in the business,
operations, financial condition, properties or assets of the Seller, or in
any
material impairment of the right or ability of the Seller to carry on its
business substantially as now conducted, or in any material liability on the
part of the Seller, or which would draw into question the validity of this
Agreement or the Mortgage Loans or of any action taken or to be taken in
connection with the obligations of the Seller contemplated herein, or which
would be likely to impair materially the ability of the Seller to perform under
the terms of this Agreement;
(f) Ability
to Perform; Solvency. The Seller does not believe, nor does it
have any reason or cause to believe, that it cannot perform each and every
covenant contained in this Agreement. The Seller is solvent and the
sale of the Mortgage Loans will not cause the Seller to become
insolvent. The sale of the Mortgage Loans is not undertaken with the
intent to hinder, delay or defraud any of Seller’s creditors;
(g) Seller’s
Origination. The Seller’s decision to originate any mortgage loan
or to deny any mortgage loan application is an independent decision based upon
the Underwriting Guidelines, and is in no way made as a result of Purchaser’s
decision to purchase, or not to purchase, or the price Purchaser may offer
to
pay for, any such mortgage loan, if originated;
(h) Anti-Money
Laundering Laws. The Seller has complied with all applicable
anti-money laundering laws, executive order and regulations, including without
limitation the USA Patriot Act of 2001 (collectively, the “Anti-Money
Laundering Laws”); the Seller has established an anti-money laundering
compliance program as required by the Anti-Money Laundering Laws, has conducted
the requisite due diligence in connection with the origination of each Mortgage
Loan for purposes of the Anti-Money Laundering Laws, including with respect
to
the legitimacy of the applicable Mortgagor and the origin of the assets used
by
the said Mortgagor to purchase the property in question, and maintains, and
will
maintain,
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sufficient
information to identify the applicable
Mortgagor for purposes of the Anti-Money Laundering Laws;
(i) Financial
Statements; Other Information. The Seller has delivered to the
Purchaser annual financial statements as to its last three complete
fiscal years and any later quarter ended more than (sixty) 60 days prior to
the execution of this Agreement. All such financial statements fairly
present the pertinent results of operations and changes in financial position
for each of such periods and the financial position at the end of each such
period of the Seller and its subsidiaries and have been prepared in accordance
with generally accepted accounting principles consistently applied throughout
the periods involved, except as set forth in the notes thereto. In
addition, the Seller has delivered information as to its loan gain and loss
experience in respect of foreclosures and its loan delinquency experience for
the immediately preceding three year period, in each case with respect to
mortgage loans owned by it and such mortgage loans serviced for others during
such period, and all such information so delivered shall be true and correct
in
all material respects. There has been no change in the business,
operations, financial condition, properties or assets of the Seller since the
date of the Seller’s financial Statements that would have a material adverse
effect on its ability to perform its obligations under this
Agreement. The Seller has completed any forms requested by the
Purchaser in a timely manner and in accordance with the provided
instructions;
(j) Ability
to Service. Seller has the facilities, procedures, and
experienced personnel necessary for the sound servicing of mortgage loans of
the
same type as the Mortgage Loans. The Seller is duly qualified,
licensed, registered and otherwise authorized under all applicable federal,
state and local laws, and regulations, if applicable, meets the minimum capital
requirements set forth by HUD, the OTS, the OCC or the FDIC, if applicable,
and
is in good standing to enforce, originate, sell mortgage loans to, and service
mortgage loans in the jurisdiction wherein the Mortgaged Properties are
located;
(k) Reasonable
Servicing Fee. The Seller acknowledges and agrees that the
Servicing Fee represents reasonable compensation for performing such services
and that the entire Servicing Fee shall be treated by the Seller, for accounting
and tax purposes, as compensation for the servicing and administration of the
Mortgage Loans pursuant to this Agreement;
(l) Delivery
to the Custodian. The Mortgage Note, the Mortgage, the Assignment
of Mortgage and any other documents required to be delivered with respect to
each Mortgage Loan shall be delivered to the Custodian. With respect
to each Mortgage Loan, the Seller will be in possession of a complete Mortgage
File in compliance with Exhibit 2 hereto, except for such documents
as will be delivered to the Custodian;
(m) No
Brokers. The Seller has not dealt with any broker, investment
banker, agent or other person that may be entitled to any commission or
compensation in connection with the sale of the Mortgage Loans;
(n) Sale
Treatment. The Seller expects to be advised by its independent
certified public accountants that under generally accepted accounting principles
the transfer of the Mortgage Loans will be treated as a sale on the books and
records of the Seller and the Seller
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has
determined that the disposition of the Mortgage
Loans pursuant to this Agreement will be afforded sale treatment for tax and
accounting purposes;
(o) Reasonable
Purchase Price. The consideration received by the Seller upon the
sale of the Mortgage Loans under this Agreement constitutes fair consideration
and reasonably equivalent value for the Mortgage Loans;
(p) Approved
Seller. The Seller is an approved seller of residential mortgage
loans for ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac and HUD. The Seller is duly
qualified, licensed, registered and otherwise authorized under all applicable
federal, state and local laws and regulations, meets the minimum capital
requirements, if applicable, set forth by the Office of the Comptroller of
the
Currency, and is in good standing to sell mortgage loans to ▇▇▇▇▇▇ Mae or
▇▇▇▇▇▇▇ Mac and no event has occurred which would make the Seller unable to
comply with eligibility requirements or which would require notification to
either ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac; and
(q) Insured
Depository Institution Representations. The Seller is an “insured
depository institution” as that term is defined in Section 1813(c)(2) of
Title 12 of the United States Code, as amended, and accordingly, Seller
makes the following additional representations and warranties:
(i)
This Agreement between the Purchaser and the Seller conforms to all applicable
statutory and regulatory requirements; and
(ii)
This Agreement is (1) executed contemporaneously with the agreement reached
by the Purchaser and the Seller, (2) approved by a specific or general
corporate or banking association resolution by the Seller’s board of directors,
which approval shall be reflected in the minutes of said board, and (3) an
official record of the Seller. A copy of such resolution, certified
by a vice president or higher officer of the Seller has been provided to the
Purchaser.
Subsection
7.03 Remedies for Breach of Representations and
Warranties.
It
is understood and agreed that the representations and warranties set forth
in
Subsections 7.01 and 7.02 shall survive the sale of the Mortgage
Loans to the Purchaser and shall inure to the benefit of the Purchaser,
notwithstanding any restrictive or qualified endorsement on any Mortgage Note
or
Assignment of Mortgage or the examination or failure to examine any Mortgage
File. Upon discovery by either the Seller, the Servicer or the
Purchaser of a breach of any of the foregoing representations and warranties,
the party discovering such breach shall give prompt written notice to the other
relevant parties.
Within
sixty (60) days after the earlier of either discovery by or notice to the Seller
of any breach of a representation or warranty, which materially and adversely
affects the value of the Mortgage Loans or the interest of the Purchaser therein
(or which materially and adversely affects the value of the applicable Mortgage
Loan or the interest of the Purchaser therein in the case of a representation
and warranty relating to a particular Mortgage Loan), the Seller shall use
its
best efforts promptly to cure such breach in all material respects and, if
such
breach cannot be cured, the Seller shall, at the Purchaser’s option, repurchase
such Mortgage Loan or Mortgage Loans at the Repurchase
Price. Notwithstanding the above sentence,
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(i)
within sixty (60) days after the earlier of
either discovery by, or notice to, the Seller of any breach of the
representation and warranty set forth in clause (vv) of
Subsection 7.01, the Seller shall repurchase such Mortgage Loan at
the Repurchase Price and (ii) any breach of a Deemed Material and Adverse
Representation shall automatically be deemed to materially and adversely affects
the value of the Mortgage Loans or the interest of the Purchaser
therein. In the event that a breach shall involve any representation
or warranty set forth in Subsection 7.02, and such breach cannot be
cured within 60 days of the earlier of either discovery by or notice to the
Seller of such breach, all of the Mortgage Loans affected by such breach shall,
at the Purchaser’s option, be repurchased by the Seller at the Repurchase
Price. However, if the breach, shall involve a representation or
warranty set forth in Subsection 7.01 (except as provided in the
second sentence of this paragraph with respect to certain breaches for which
no
substitution is permitted) and the Seller discovers or receives notice of any
such breach within 120 days of the related Closing Date, the Seller shall,
at
the Purchaser’s option and provided that the Seller has a Qualified Substitute
Mortgage Loan, rather than repurchase the Mortgage Loan as provided above,
remove such Mortgage Loan and substitute in its place a Qualified Substitute
Mortgage Loan or Qualified Substitute Mortgage Loans; provided, however, that
any such substitution shall be effected within such one hundred twenty (120)
days after the related Closing Date. If the Seller has no Qualified
Substitute Mortgage Loan, it shall repurchase the deficient Mortgage Loan at
the
Repurchase Price. Any repurchase of a Mortgage Loan pursuant to the
foregoing provisions of this Subsection 7.03 shall occur on a date
designated by the Purchaser, and acceptable to the Seller, and shall be
accomplished by the Seller remitting to the Servicer for deposit the amount
of
the Repurchase Price in the Custodial Account for distribution to the Purchaser
on the next scheduled Remittance Date.
At
the
time of repurchase of any deficient Mortgage Loan (or removal of any Deleted
Mortgage Loan), the Purchaser and the Seller shall arrange for the assignment
of
the repurchased Mortgage Loan (or Deleted Mortgage Loan) to the Seller or its
designee and the delivery to the Seller of any documents held by the Purchaser
relating to the repurchased Mortgage Loan in the manner required by this
Agreement with respect to the purchase and sale of such Mortgage Loan on the
related Closing Date. In the event the Repurchase Price is deposited
in the Custodial Account, the Seller shall, simultaneously with its remittance
to the Servicer of such Repurchase Price for deposit, give written notice to
the
Purchaser that such deposit has taken place. Upon such repurchase,
the Seller shall amend the related Mortgage Loan Schedule to reflect the
withdrawal of the repurchased Mortgage Loan from this Agreement.
As
to any
Deleted Mortgage Loan for which the Seller substitutes one or more Qualified
Substitute Mortgage Loans, the Seller shall be deemed to have made the
representations and warranties set forth in this Agreement except that all
such
representations and warranties set forth in this Agreement shall be deemed
made
as of the date of such substitution. No substitution will be made in
any calendar month after the Determination Date for such month. The
Seller shall effect such substitution by delivering to the Purchaser for each
Qualified Substitute Mortgage Loan the Mortgage Note, the Mortgage, the
Assignment of Mortgage and such other documents and agreements as are required
by Subsection 6.03. The Seller shall remit to the
Servicer for deposit in the Custodial Account the Monthly Payment less the
Servicing Fee due on each Qualified Substitute Mortgage Loan in the month
following the date of such substitution. Monthly Payments due with
respect to Qualified Substitute Mortgage Loans in the month of substitution
shall be retained by the Seller. For the month of substitution,
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distributions
to the Purchaser shall include the
Monthly Payment due on any Deleted Mortgage Loan in the month of substitution,
and the Seller shall thereafter be entitled to retain all amounts subsequently
received by the Seller in respect of such Deleted Mortgage Loan. The
Seller shall give written notice to the Purchaser that such substitution has
taken place and shall amend the related Mortgage Loan Schedule to reflect the
removal of such Deleted Mortgage Loan from the terms of this Agreement and
the
substitution of the Qualified Substitute Mortgage Loan. Upon such
substitution, each Qualified Substitute Mortgage Loan shall be subject to the
terms of this Agreement in all respects, and the Seller shall be deemed to
have
made with respect to such Qualified Substitute Mortgage Loan, as of the date
of
substitution, the covenants, representations and warranties set forth in
Subsections 7.01 and 7.02.
For
any
month in which the Seller substitutes one or more Qualified Substitute Mortgage
Loans for one or more Deleted Mortgage Loans, the Seller shall determine the
amount (if any) by which the aggregate principal balance of all such Qualified
Substitute Mortgage Loans as of the date of substitution is less than the
aggregate Stated Principal Balance of all such Deleted Mortgage Loans (after
application of scheduled principal payments due in the month of
substitution). The amount of such shortfall shall be remitted to the
Servicer by the Seller for distribution by the Servicer in the month of
substitution pursuant to Subsection 11.04. Accordingly,
on the date of such substitution, the Seller will remit to the Servicer from
its
own funds for deposit into the Custodial Account an amount equal to the amount
of such shortfall plus one month’s interest thereon at the Mortgage Loan
Remittance Rate.
In
addition to such repurchase or substitution obligation, the Seller shall
indemnify the Purchaser and its present and former directors, officers,
employees and agents and any Successor Servicer and its present and former
directors, officers, employees and agents and hold such parties harmless against
any losses, damages, penalties, fines, forfeitures, legal fees and expenses
and
related costs, judgments, and other costs and expenses resulting from any claim,
demand, defense or assertion based on or grounded upon, or resulting from,
a
breach of the Seller representations and warranties contained in this Agreement
or any Reconstitution Agreement. For purposes of this paragraph,
“Purchaser” shall mean the Person then acting as the Purchaser under this
Agreement and any and all Persons who previously were “Purchasers” under this
Agreement and “Successor Servicer” shall mean any Person designated as the
Successor Servicer pursuant to this Agreement and any and all Persons who
previously were “Successor Servicers” pursuant to this Agreement. It
is understood and agreed that the obligations of the Seller set forth in this
Subsection 7.03 to cure, repurchase or substitute for a defective
Mortgage Loan, and to indemnify the Purchaser and Successor Servicer under
Subsection 12.01 constitute the sole remedies of the Purchaser and Successor
Servicer respecting a breach of the representations and warranties set forth
in
Subsections 7.01 and 7.02.
Any
cause
of action against the Seller relating to or arising out of the breach of any
representations and warranties made in Subsections 7.01 and
7.02 shall accrue as to any Mortgage Loan upon (i) discovery of
such
breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii)
failure by the Seller to cure such breach, substitute a Qualified Substitute
Mortgage Loan, or repurchase such Mortgage Loan as specified above and (iii)
demand upon the Seller by the Purchaser for compliance with this
Agreement.
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Subsection
7.04 Repurchase of Mortgage Loans with First
Payment Defaults. If
the related Mortgagor is delinquent with respect to any of the related Mortgage
Loan’s first Monthly Payment at any time either (i) after the origination
of such Mortgage Loan, or (ii) after the related Closing Date, the Seller,
at the Purchaser’s option, shall repurchase such Mortgage Loan from the
Purchaser at a price equal to the Repurchase Price. The Seller shall
repurchase such delinquent Mortgage Loan within thirty (30) days of such
request.
Subsection
7.05 Premium Recapture. With
respect to any Mortgage Loan without Prepayment Penalties that prepays in full
during the first three months following the related Closing Date, and with
respect to any Mortgage Loan that is repurchased pursuant to
Subsection 7.04, the Seller shall pay the Purchaser, within three (3)
Business Days after such prepayment in full, an amount equal to the excess,
if
any, of the applicable Purchase Price Percentage for such Mortgage Loan over
par, multiplied by the outstanding principal balance of such Mortgage Loan
as of
the related Cut-off Date.
Section
8. Closing. The
closing for the purchase and sale of each Mortgage Loan Package shall take
place
on the related Closing Date. At the Purchaser’s option, each closing
shall be either: by telephone, confirmed by letter or wire as the parties shall
agree, or conducted in person, at such place as the parties shall
agree. Each closing shall be subject to each of the following
conditions:
(a) at
least two Business Days prior to the related Closing Date, the Seller shall
deliver to the Purchaser a magnetic diskette, or transmit by modem, a listing
on
a loan-level basis of the necessary information to compute the Purchase Price
of
the Mortgage Loans delivered on such Closing Date (including accrued interest),
and prepare a Mortgage Loan Schedule;
(b) all
of the representations and warranties of the Seller in this Agreement shall
be
true and correct as of the related Closing Date and no event shall have occurred
which, with notice or the passage of time, would constitute an Event of Default
under this Agreement;
(c) the
Purchaser’s attorneys shall have received in escrow, all Closing Documents as
specified in Section 9, in such forms as are agreed upon and
acceptable to the Purchaser, duly executed by all signatories as required
pursuant to the terms hereof; and
(d) all
other terms and conditions of this Agreement shall have been complied
with.
Section
9. Closing Documents. On
the related Closing Date, the Seller shall deliver to the Purchaser’s attorneys
in escrow fully executed originals of:
(a) this
Agreement (to be executed and delivered only for the initial Closing
Date);
(b) the
related Purchase Price and Terms Agreement, executed in four
(4) counterparts;
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(c) with
respect to the initial Closing Date, the Custodial Agreement, dated as of the
initial Cut-off Date;
(d) with
respect to the initial Closing Date, a Custodial Account Certification in the
form attached as Exhibit 4 hereto or a Custodial Account Letter
Agreement in the form attached as Exhibit 5 hereto;
(e) with
respect to the initial Closing Date, an Escrow Account Certification in the
form
attached as Exhibit 6 hereto or an Escrow Account Letter Agreement
in the form attached as Exhibit 7 hereto;
(f) the
related Mortgage Loan Schedule, segregated by Mortgage Loan Package, one copy
to
be attached hereto, one copy to be attached to the Custodian’s counterpart of
the Custodial Agreement, and one copy to be attached to the related Assignment
and Conveyance as the Mortgage Loan Schedule thereto;
(g) with
respect to the initial Closing Date, an Officer’s Certificate, in the form of
Exhibit 10 hereto with respect to the Seller, including all
attachments thereto and with respect to subsequent Closing Dates, an Officer’s
Certificate upon request of the Purchaser; and
(h) with
respect to the initial Closing Date, an Opinion of Counsel of the Seller (who
may be an employee of the Seller), generally in the form of
Exhibit 11 hereto and with respect to subsequent Closing Dates, an
Opinion of Counsel of the Seller upon request of the Purchaser;
(i) with
respect to the initial Closing Date, an Opinion of Counsel of the Custodian
(who
may be an employee of the Custodian), in the form of an exhibit to the Custodial
Agreement, if required;
(j) a
Security Release Certification, in the form of Exhibit 12 or
Exhibit 13, as applicable, hereto executed by any person, as
requested by the Purchaser, if any of the Mortgage Loans have at any time been
subject to any security interest, pledge or hypothecation for the benefit of
such person;
(k) a
certificate or other evidence of merger or change of name, signed or stamped
by
the applicable regulatory authority, if any of the Mortgage Loans were acquired
by the Seller by merger or acquired or originated by the Seller while conducting
business under a name other than its present name, if applicable;
(l) with
respect to the initial Closing Date, the Underwriting Guidelines to be attached
hereto as Exhibit 8 and with respect to each subsequent Closing
Date, the Underwriting Guidelines to be attached to the related Assignment
and
Conveyance;
(m) Assignment
and Conveyance Agreement in the form of Exhibit 14 hereto, including
all exhibits thereto;
(n) a
Custodian’s Certification, as required under the Custodial Agreement, in the
form of Exhibit 2 to the Custodial Agreement; and
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(o) no
later than two (2) Business Days following the Closing Date, a MERS Report
reflecting the Purchaser as Investor, the Custodian as custodian and no Person
as Interim Funder for each MERS Designated Mortgage Loan.
The
Seller shall bear the risk of loss of the closing documents until such time
as
they are received by the Purchaser or its attorneys.
Section
10. Costs. The
Purchaser shall pay its due diligence fees and the fees and expenses of its
counsel and custodial fees. All servicing fees incurred prior to the
related Closing Date, and all costs and expenses incurred in connection with
the
transfer of the Mortgage Loans, including without limitation, fees to transfer
files and prepare assignments/endorsements, including the costs associated
with
clearing exceptions and the fees and expenses of Seller’s counsel, shall be
payable by the Seller. Seller shall be responsible for all recording
costs, including the costs to record intervening assignments and one-time final
assignments to Purchaser or its designee (except with respect to each on MERS
Designated Mortgage Loans), powers of attorney and assumption and modification
agreements.
Neither
the Seller nor the Purchaser has employed a broker in connection with the
transaction contemplated herein, and neither the Seller nor the Purchaser shall
be responsible for brokerage fees incurred or payable by the other party
hereto.
Section
11. Administration and Servicing of the Mortgage
Loans.
Subsection
11.01 Servicer to Act as
Servicer. The
Servicer shall service and administer the Mortgage Loans in accordance with
this
Agreement and Accepted Servicing Procedures and the terms of the Mortgage Notes
and Mortgages, and shall have full power and authority, acting alone or through
sub-servicers or agents, to do or cause to be done any and all things in
connection with such servicing and administration which the Servicer may deem
necessary or desirable and consistent with the terms of this
Agreement. The Servicer may perform its servicing responsibilities
through agents or independent contractors, but shall not thereby be released
from any of its responsibilities hereunder.
Consistent
with the terms of this Agreement, the Servicer may waive, modify or vary any
term of any Mortgage Loan or consent to the postponement of strict compliance
with any such term or in any manner grant indulgence to any Mortgagor;
provided, however, that (unless the Mortgagor is in default
with respect to the Mortgage Loan, or such default is, in the judgment of the
Servicer, imminent, and the Servicer has the consent of the Purchaser) the
Servicer shall not permit any modification with respect to any Mortgage Loan
which materially and adversely affects the Mortgage Loan, including without
limitation, any modification that would defer or forgive the payment of any
principal or interest, change the outstanding principal amount (except for
actual payments of principal), make any future advances, extend the final
maturity date or change the Mortgage Interest Rate, as the case may be, with
respect to such Mortgage Loan. Notwithstanding the foregoing, the
Servicer shall not waive any Prepayment Penalty or portion thereof unless
(i) the enforceability thereof shall have been limited by bankruptcy,
insolvency, moratorium, receivership or other similar laws relating to
creditors’ rights generally or is otherwise prohibited by law, or
(ii) the enforceability thereof shall have
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been permanently
limited due
to acceleration in connection with a
foreclosure or other involuntary payment or (iii) in the
Servicer’s reasonable judgment, (x) such waiver relates to a default or a
reasonably foreseeable default, (y) such waiver would maximize recovery of
total proceeds taking into account the value of such Prepayment Penalty and
related Mortgage Loan and (z) doing so is standard and customary in
servicing Mortgage Loans (including any waiver of a Prepayment Penalty in
connection with a refinancing of a Mortgage Loan that is related to a default
or
reasonably foreseeable default). Except as provided in the preceding
sentence, in no event will the Servicer waive a Prepayment Penalty in connection
with a refinancing of a Mortgage Loan that is not related to a default or a
reasonably foreseeable default. If the Servicer waives or
does not collect all or a portion of a Prepayment Penalty relating to a
Principal Prepayment in full or in part due to any action or omission of the
Servicer, other than as permitted above, the Servicer shall deposit from its
own
funds without any right of reimbursement therefor the amount of such Prepayment
Penalty (or such portion thereof as had been waived for deposit) into the
Custodial Account for distribution in accordance with the terms of this
Agreement. In connection with any waiver of a Prepayment Penalty by
the Servicer, the Servicer shall account for such waiver in its monthly reports
as agreed upon by the Servicer and the Purchaser. Without limiting
the generality of the foregoing, the Servicer in its own name or acting through
sub-servicers or agents is hereby authorized and empowered by the Purchaser
when
the Servicer believes it appropriate and reasonable in its best judgment, to
execute and deliver, on behalf of itself and the Purchaser, all instruments
of
satisfaction or cancellation, or of partial or full release, discharge and
all
other comparable instruments, with respect to the Mortgage Loans and the
Mortgaged Properties and to institute foreclosure proceedings or obtain a
deed-in-lieu of foreclosure so as to convert the ownership of such properties,
and to hold or cause to be held title to such properties, on behalf of the
Purchaser pursuant to the provisions of
Subsection 11.12. The Servicer shall make all required
Servicing Advances and shall service and administer the Mortgage Loans in
accordance with applicable state and federal law and shall provide to the
Mortgagors any reports required to be provided to them thereby. The
Purchaser shall furnish to the Servicer any powers of attorney and other
documents reasonably necessary or appropriate to enable the Servicer to carry
out its servicing and administrative duties under this Agreement.
Notwithstanding
anything to the contrary in this Agreement, the Purchaser may at any time and
from time to time, in its sole discretion, upon written notice to the Seller,
with respect to (1) any REO Property or (2) all Mortgage Loans that
are 90 or more days delinquent as of the date of such notice and any
Mortgage Loans that subsequently become 90 or more days delinquent
following the date of such notice (for the purposes of this paragraph such
Mortgage Loans, “Delinquent Mortgage Loans”), either (i) terminate
the Seller’s servicing obligations hereunder with respect to such REO Properties
and Delinquent Mortgage Loans, upon reimbursement of any unreimbursed advances
owed to the Servicer, or (ii) assume the absolute right to direct the
Seller to take such actions with respect to such REO Property and Delinquent
Mortgage Loans as the Seller would otherwise be able to undertake pursuant
to
Subsection 11.12. Upon the effectiveness of any such
termination of the Seller’s servicing obligations with respect to any such REO
Property or Delinquent Mortgage Loan, the Seller shall deliver all agreements,
documents, and instruments related thereto to the Purchaser, in accordance
with
Accepted Servicing Procedures and applicable law and shall transfer servicing
to
the Purchaser’s designee in accordance with Acceptable Servicing
Procedures.
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In
the
event the Purchaser transfers the servicing of all of the Mortgage Loans being
serviced by the Seller pursuant to this Agreement, the Purchaser shall also
transfer the servicing with respect to all REO Property and any Mortgage Loans
in foreclosure. Upon such a transfer of servicing the Purchaser
shall, or shall cause its designee to, reimburse the Seller for all outstanding
Servicing Advances reasonably incurred in accordance with Accepted Servicing
Practices or Servicing Fees related to such Mortgage Loans.
If
a
REMIC election has been made with respect to the arrangement under which the
Mortgage Loans and REO Property are held, the Servicer 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 860D of the Code) unless the Servicer 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 tax on the REMIC.
Subsection
11.02 Liquidation of Mortgage
Loans. If
any payment due under any Mortgage Loan is not paid when the same becomes due
and payable, or in the event the Mortgagor fails to perform any other covenant
or obligation under the Mortgage Loan and such failure continues beyond any
applicable grace period, the Servicer shall take such action as it shall deem
to
be in the best interest of the Purchaser. If any payment due under
any Mortgage Loan remains delinquent for a period of one hundred twenty (120)
days or more, the Servicer shall commence foreclosure proceedings in accordance
with Accepted Servicing Practices. In such event, the Servicer shall
from its own funds make all necessary and proper Servicing
Advances.
Subsection
11.03 Collection of Mortgage Loan
Payments. Continuously
from the date hereof until the principal and interest on all Mortgage Loans
are
paid in full, the Servicer will proceed diligently, in accordance with this
Agreement, to collect all payments due under each of the Mortgage Loans when
the
same shall become due and payable. Further, the Servicer will in
accordance with Accepted Servicing Procedures ascertain and estimate taxes,
assessments, fire and hazard insurance premiums, and all other charges that,
as
provided in any Mortgage, will become due and payable to the end that the
installments payable by the Mortgagors will be sufficient to pay such charges
as
and when they become due and payable.
Subsection
11.04 Establishment of Custodial
Account; Deposits in Custodial Account. The
Servicer shall segregate and hold all funds collected and received pursuant
to
each Mortgage Loan separate and apart from any of its own funds and general
assets and shall establish and maintain one or more Custodial Accounts
(collectively, the “Custodial Account”), titled “US Bank, N.A., in trust
for ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Holdings LLC as Purchaser of Mortgage
Loans and various Mortgagors.” Such Custodial Account shall be
established with a commercial bank, a savings bank or a savings and loan
association (which may be a depository affiliate of the Servicer) which meets
the guidelines set forth by ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac as an eligible depository
institution for custodial accounts. In any case, the Custodial
Account shall be insured by the FDIC in a manner which shall provide maximum
available insurance
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thereunder
and which may be drawn on by the
Servicer. The creation of any Custodial Account shall be evidenced by
(i) a certification in the form of Exhibit 4 hereto, in the case of an
account established with a depository affiliate of the Servicer, or (ii) a
letter agreement in the form of Exhibit 5 hereto, in the case of an account
held by a depository other than an affiliate of the Servicer. In
either case, a copy of such certification or letter agreement shall be furnished
to the Purchaser upon request.
The
Servicer shall deposit in the Custodial Account on a daily basis on the Business
Day following receipt thereof, and retain therein the following payments and
collections received or made by it subsequent to the related Cut-off Date (other
than in respect of principal and interest on the Mortgage Loans due on or before
the related Cut-off Date):
(a) all
payments on account of principal, including Principal Prepayments, on the
Mortgage Loans;
(b) all
payments on account of interest on the Mortgage Loans adjusted to the Mortgage
Loan Remittance Rate;
(c) all
Liquidation Proceeds;
(d) all
proceeds received by the Servicer under any title insurance policy, hazard
insurance policy, or other insurance policy other than proceeds to be held
in
the Escrow Account and applied to the restoration or repair of the Mortgaged
Property or released to the Mortgagor in accordance with Accepted Servicing
Procedures;
(e) all
awards or settlements in respect of condemnation proceedings or eminent domain
affecting any Mortgaged Property which are not released to the Mortgagor in
accordance with Accepted Servicing Procedures;
(f) any
amount required to be deposited in the Custodial Account pursuant to
Subsections 11.14, 11.16 and 11.18;
(g) any
amount required to be deposited by the Servicer in connection with any REO
Property pursuant to Subsection 11.12;
(h) any
amounts payable in connection with the repurchase of any Mortgage Loan pursuant
to Subsection 7.03, and all amounts required to be deposited by the
Servicer in connection with shortfalls in principal amount of Qualified
Substitute Mortgage Loans pursuant to Subsection 7.03;
and
(i) with
respect to each Principal Prepayment, an amount (to be paid by the Servicer
out
of its own funds) which, when added to all amounts allocable to interest
received in connection with the Principal Prepayment, equals one month’s
interest on the amount of principal so prepaid for the month of prepayment
at
the applicable Mortgage Loan Remittance Rate; provided,
however, that the Servicer’s aggregate obligations under this
paragraph for any month shall be limited to the total amount of Servicing
Fees actually received with respect to the Mortgage Loans by the Servicer during
such month.
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The
foregoing requirements for deposit in the Custodial Account shall be exclusive,
it being understood and agreed that, without limiting the generality of the
foregoing, payments in the nature of late payment charges, assumption fees
and
other ancillary fees need not be deposited by the Servicer in the Custodial
Account.
The
Servicer may invest the funds in the Custodial Account in Eligible Investments
designated in the name of the Servicer for the benefit of the Purchaser, which
shall mature not later than the Business Day next preceding the Remittance
Date
next following the date of such investment (except that (A) any investment
in the institution with which the Custodial Account is maintained may mature
on
such Remittance Date and (B) any other investment may mature on such
Remittance Date if the Servicer shall advance funds on such Remittance Date,
pending receipt thereof to the extent necessary to make distributions to the
Owner) and shall not be sold or disposed of prior to
maturity. Notwithstanding anything to the contrary herein and above,
all income and gain realized from any such investment shall be for the benefit
of the Servicer and shall be subject to withdrawal by the
Servicer. The amount of any losses incurred in respect of any such
investments shall be deposited in the Custodial Account by the Servicer out
of
its own funds immediately as realized.
Subsection
11.05 Withdrawals From the Custodial
Account. The
Servicer shall, from time to time, withdraw funds from the Custodial Account
for
the following purposes:
(a) to
make payments to the Purchaser in the amounts and in the manner provided for
in
Subsection 11.14;
(b) to
reimburse itself for P&I Advances, the Servicer’s right to reimburse itself
pursuant to this subclause (b) with respect to any Mortgage Loan being
limited to related Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds, REO Disposition Proceeds and such other amounts as may be collected
by
the Servicer from the Mortgagor or otherwise relating to the Mortgage Loan,
it
being understood that, in the case of any such reimbursement, the Servicer’s
right thereto shall be prior to the rights of the Purchaser, except that, where
the Seller is required to repurchase a Mortgage Loan, pursuant to
Subsection 7.03, the Servicer’s right to such reimbursement shall be
subsequent to the payment to the Purchaser of the Repurchase Price pursuant
to
Subsection 7.03, and all other amounts required to be paid to the
Purchaser with respect to such Mortgage Loan;
(c) to
reimburse itself for any unpaid Servicing Fees and for unreimbursed Servicing
Advances, the Servicer’s right to reimburse itself pursuant to this
subclause (c) with respect to any Mortgage Loan being limited to
related Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds, REO
Disposition Proceeds and such other amounts as may be collected by the Servicer
from the Mortgagor or otherwise relating to the Mortgage Loan, it being
understood that, in the case of any such reimbursement, the Servicer’s right
thereto shall be prior to the rights of the Purchaser unless the Seller is
required to repurchase a Mortgage Loan pursuant to Subsection 7.03,
in which case the Servicer’s right to such reimbursement shall be subsequent to
the payment to the Purchaser of the Repurchase Price pursuant to
Subsection 7.03 and all other amounts required to be paid to the
Purchaser with respect to such Mortgage Loan;
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(d) to
reimburse itself for unreimbursed Servicing Advances and for ▇▇▇▇▇▇▇▇▇▇▇▇
▇&▇ Advances,
in accordance with Subsection 11.16, to the extent that such amounts
are nonrecoverable by the Servicer pursuant to subclause (b) or (c) above,
provided that the Mortgage Loan for which such advances were made is
not required to be repurchased by the Seller pursuant to
Subsection 7.03;
(e) to
reimburse itself for expenses incurred by and reimbursable to it pursuant to
Subsection 12.01;
(f) to
withdraw amounts to make P&I Advances
in accordance with Subsection 11.16;
(g) to
pay to itself any interest earned or any investment earnings on funds deposited
in the Custodial Account;
(h) to
withdraw any amounts inadvertently deposited in the Custodial Account;
and
(i) to
clear and terminate the Custodial Account upon the termination of this
Agreement.
Subsection
11.06 Establishment of Escrow Account;
Deposits in Escrow Account. The
Servicer shall segregate and hold all funds collected and received pursuant
to
each Mortgage Loan which constitute Escrow Payments separate and apart from
any
of its own funds and general assets and shall establish and maintain one or
more
Escrow Accounts (collectively, the “Escrow Account”), titled “US Bank,
N.A., in trust for ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Holdings LLC as
Purchaser of Mortgage Loans and various Mortgagors.” The Escrow
Account shall be established with a commercial bank, a savings bank or a savings
and loan association (which may be a depository affiliate of Servicer), which
meets the guidelines set forth by ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac as an eligible
institution for escrow accounts. In any case, the Escrow Account
shall be insured by the FDIC in a manner which shall provide maximum available
insurance thereunder and which may be drawn on by the Servicer. The
creation of any Escrow Account shall be evidenced by a certification in the
form
of Exhibit 6 hereto, in the case of an account established with a
depository affiliate of the Servicer, or by a letter agreement in the form
of
Exhibit 7 hereto, in the case of an account held by a
depository. In either case, a copy of such certification or letter
agreement shall be furnished to the Purchaser upon request.
The
Servicer shall deposit in the Escrow Account on a daily basis, and retain
therein: (a) all Escrow Payments collected on account of the
Mortgage Loans, for the purpose of effecting timely payment of any such items
as
required under the terms of this Agreement, and (b) all amounts
representing proceeds of any hazard insurance policy which are to be applied
to
the restoration or repair of any Mortgaged Property. The Servicer
shall make withdrawals therefrom only in accordance with
Subsection 11.07. As part of its servicing duties, the
Servicer shall pay to the Mortgagors interest on funds in the Escrow Account,
to
the extent required by law.
Subsection
11.07 Withdrawals From Escrow Account. Withdrawals
from the Escrow Account shall be made by the Servicer only (a) to effect
timely payments of ground
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rents,
taxes, assessments, fire and hazard insurance
premiums or other items constituting Escrow Payments for the related Mortgage,
(b) to reimburse the Servicer for any Servicing Advance made by Servicer
pursuant to Subsection 11.08 with respect to a related Mortgage
Loan, (c) to refund to any Mortgagor any funds found to be in excess of the
amounts required under the terms of the related Mortgage Loan, (d) for
transfer to the Custodial Account upon default of a Mortgagor or in accordance
with the terms of the related Mortgage Loan and if permitted by applicable
law,
(e) for application to restore or repair of the Mortgaged Property,
(f) to pay to the Mortgagor, to the extent required by law, any interest
paid on the funds deposited in the Escrow Account, (g) to pay to itself any
interest earned on funds deposited in the Escrow Account (and not required
to be
paid to the Mortgagor), (h) to the extent permitted under the terms of the
related Mortgage Note and applicable law, to pay late fees with respect to
any
Monthly Payment which is received after the applicable grace period, (i) to
withdraw suspense payments that are deposited into the Escrow Account,
(j) to withdraw any amounts inadvertently deposited in the Escrow Account
or (k) to clear and terminate the Escrow Account upon the termination of
this Agreement.
Subsection
11.08 Payment of Taxes, Insurance and Other Charges;
Collections Thereunder. With
respect to each Mortgage Loan, the Servicer shall maintain accurate records
reflecting the status of ground rents, taxes, assessments and other charges
which are or may become a lien upon the Mortgaged Property and the status of
fire and hazard insurance coverage and shall obtain, from time to time, all
bills for the payment of such charges (including renewal premiums) and shall
effect payment thereof prior to the applicable penalty or termination date
and
at a time appropriate for securing maximum discounts allowable, employing for
such purpose deposits of the Mortgagor in the Escrow Account which shall have
been estimated and accumulated by the Servicer in amounts sufficient for such
purposes, as allowed under the terms of the Mortgage. If a Mortgage
does not provide for Escrow Payments, the Servicer shall determine that any
such
payments are made by the Mortgagor. The Servicer assumes full
responsibility for the timely payment of all such bills and shall effect timely
payments of all such bills irrespective of each Mortgagor’s faithful performance
in the payment of same or the making of the Escrow Payments and shall make
Servicing Advances to effect such payments, subject to its ability to recover
such Servicing Advances pursuant to
Subsection 11.07(b). With respect to each Mortgage Loan,
on or before January 31st of each
year
during the term of this Agreement, beginning January 31, 2006, the Servicer
shall ensure that all taxes due during the prior calendar year have been paid
on
the related Mortgaged Property.
With
respect to each Mortgage Loan identified on the Mortgage Loan Schedule as an
LPMI Loan, the Servicer shall maintain in full force and effect any LPMI Policy,
and from time to time, withdraw the premium with respect to such Mortgage Loans
from the Custodial Account in order to pay the premium thereon on a timely
basis. In the event that the interest payments made with respect to the Mortgage
Loan are less than the premium with respect to the LPMI Policy, the Servicer
shall advance from its own funds the amount of any such shortfall in the LPMI
Policy premiums, in payment of such premium. Any such advance shall
be a Servicing Advance subject to reimbursement. In the event that
such LPMI Policy shall be terminated, the Servicer shall obtain from another
insurer acceptable under the Underwriting Guidelines, a comparable replacement
policy, with a total coverage equal to the remaining
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coverage
of such terminated LPMI Policy, at
substantially the same fee level. If the insurer shall cease to be an
insurer acceptable under the Underwriting Guidelines, the Servicer shall
determine whether recoveries under the LPMI Policy are jeopardized for reasons
related to the financial condition of such insurer, it being understood that
the
Servicer shall in no event have any responsibility or liability for any failure
to recover under the LPMI Policy for such reason. If the Servicer
determines that recoveries are so jeopardized, it shall notify the Purchaser
and
the Mortgagor, if required, and obtain from another insurer acceptable under
the
Underwriting Guidelines a replacement insurance policy. The Servicer
shall not take any action which would result in noncoverage under any applicable
LPMI Policy of any loss which, but for the actions of the Servicer would have
been covered thereunder. In connection with any assumption or substitution
agreement entered into or to be entered into, the Servicer shall promptly notify
the insurer under the related LPMI Policy, if any, of such assumption or
substitution of liability in accordance with the terms of such LPMI Policy
and
shall take all actions which may be required by such insurer as a condition
to
the continuation of coverage under such LPMI Policy. If such LPMI
Policy is terminated as a result of such assumption or substitution of
liability, the Servicer shall obtain a replacement LPMI Policy as provided
above.
Purchaser,
in its sole discretion, at any time, may (i) either obtain an additional LPMI
Policy on any Mortgage Loan which already has an LPMI Policy in place, or (ii)
obtain a LPMI Policy for any Mortgage Loan which does not already have a LPMI
Policy in place. In any event, the Servicer agrees to administer such
LPMI Policies in accordance with the Agreement or any Reconstitution
Agreement.
In
connection with its activities as servicer, the Servicer agrees to prepare
and
present, on behalf of itself and the Purchaser, claims to the insurer under
any
PMI Policy or LPMI Policy in a timely fashion in accordance with the terms
of
such PMI Policy and LPMI Policy and, in this regard, to take such action as
shall be necessary to permit recovery under any PMI Policy or LPMI Policy
respecting a defaulted Mortgage Loan. Any amounts collected by the
Servicer under any PMI Policy shall be deposited in the Escrow
Account.
Subsection
11.09 Transfer of Accounts. The
Servicer may transfer the Custodial Account or the Escrow Account to a different
depository institution. Such transfer shall be made only upon
obtaining the prior written consent of the Purchaser; such consent not to be
unreasonably withheld.
Subsection
11.10 Maintenance of Hazard Insurance. The
Servicer shall cause to be maintained for each Mortgage Loan fire and hazard
insurance with extended coverage customary in the area where the Mortgaged
Property is located that conforms to the requirements of ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇
Mac. If the Mortgaged Property is in an area identified in the
Federal Register by the Federal Emergency Management Agency as having special
flood hazards (and such flood insurance has been made available) the Servicer
will cause to be maintained a flood insurance policy meeting the requirements
of
▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac. The Servicer shall also maintain on REO
Property fire and hazard insurance with extended coverage in an amount which
meets the requirements of ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac. Any amounts
collected by the Servicer under any such policies (other than amounts to be
deposited in the Escrow Account and applied to the restoration or repair of
the
property subject to the related Mortgage or property acquired in liquidation
of
the Mortgage Loan, or to be released to the
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Mortgagor
in accordance with Accepted Servicing
Procedures) shall be deposited in the Custodial Account, subject to withdrawal
pursuant to Subsection 11.05. It is understood and agreed
that no earthquake or other additional insurance need be required by the
Servicer of any Mortgagor or maintained on REO Property other than pursuant
to
such applicable laws and regulations as shall at any time be in force and as
shall require such additional insurance. All policies required
hereunder shall be endorsed with standard mortgagee clauses with loss payable
to
Servicer, and shall provide for at least thirty (30) days prior
written notice of any cancellation, reduction in amount or material change
in
coverage to the Servicer. The Servicer shall not interfere with the
Mortgagor’s freedom of choice in selecting either its insurance carrier or
agent; provided, however, that the Servicer shall not accept
any such insurance policies that do not conform to the requirements of ▇▇▇▇▇▇
Mae or ▇▇▇▇▇▇▇ Mac.
Subsection
11.11 Fidelity Bond; Errors and Omissions
Insurance. The
Servicer shall maintain, at its own expense, a blanket Fidelity Bond and an
errors and omissions insurance policy, with broad coverage on all officers,
employees or other Persons acting in any capacity requiring such Persons to
handle funds, money, documents or papers relating to the Mortgage
Loans. These policies shall insure the Servicer against losses
resulting from dishonest or fraudulent acts committed by the Servicer’s
personnel, any employees of outside firms that provide data processing services
for the Servicer, and temporary contract employees or student
interns. The Fidelity Bond shall also protect and insure the Servicer
against losses in connection with the release or satisfaction of a Mortgage
Loan
without having obtained payment in full of the indebtedness secured
thereby. No provision of this Subsection 11.11 requiring
such Fidelity Bond and errors and omissions insurance shall diminish or relieve
the Servicer of its duties and obligations as set forth in this
Agreement. The minimum coverage under any such Fidelity Bond and
insurance policy shall be at least equal to the corresponding amounts required
by ▇▇▇▇▇▇ Mae in the ▇▇▇▇▇▇ ▇▇▇ Servicing Guide or by ▇▇▇▇▇▇▇ Mac in the ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇’ & Servicers’ Guide, as amended or restated from time to
time, or in an amount as may be permitted to the Servicer by express waiver
of
▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac.
Subsection
11.12 Title, Management and
Disposition of REO Property. If
title to the Mortgaged Property is acquired in foreclosure or by deed in lieu
of
foreclosure, the deed or certificate of sale shall be taken in the name of
the
Servicer or its nominee, in either case as nominee, for the benefit of the
Purchaser of record on the date of acquisition of title (the
“Owner”). If the Servicer is not authorized or permitted to
hold title to real property in the state where the REO Property is located,
or
would be adversely affected under the “doing business” or tax laws of such state
by so holding title, the deed or certificate of sale shall be taken in the
name
of such Person or Persons as shall be consistent with an opinion of counsel
obtained by the Servicer, at the expense of the Purchaser, from an attorney
duly
licensed to practice law in the state where the REO Property is
located. The Person or Persons holding such title other than the
Owner shall acknowledge in writing that such title is being held as nominee
for
the Owner.
The
Servicer shall cause to be deposited on a daily basis in the Custodial Account
all revenues received with respect to the conservation and disposition of the
related REO Property and shall withdraw therefrom funds necessary for the proper
operation, management and maintenance of the REO Property, including the cost
of
maintaining any hazard insurance pursuant to Subsection 11.10 and
the fees of any managing agent acting on behalf of the Servicer. Any
disbursement in excess of $5,000 shall be made only with the written approval
of
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the
Purchaser. The Servicer shall make
distributions as required on each Remittance Date to the Purchaser of the net
cash flow from the REO Property (which shall equal the revenues from such REO
Property net of the expenses described above and of any reserves reasonably
required from time to time to be maintained to satisfy anticipated liabilities
for such expenses).
The
disposition of REO Property shall be carried out by the Servicer in accordance
with the provisions of this Agreement and shall be made at such price, and
upon
such terms and conditions, as the Servicer deems to be in the best interests
of
the Owner. Upon the request of the Owner, and at the Owner’s expense,
the Servicer shall cause an appraisal of the REO Property to be performed for
the Owner. The proceeds of sale of the REO Property shall be promptly
deposited in the Custodial Account and, as soon as practical thereafter, the
expenses of such sale shall be paid, the Servicer shall reimburse itself for
any
related unreimbursed Servicing Advances, unpaid Servicing Fees, unreimbursed
advances made pursuant to Subsection 11.16 and any appraisal
performed pursuant to this paragraph and the net cash proceeds of such sale
remaining in the Custodial Account shall be distributed to the
Purchaser.
The
Servicer shall either itself or through an agent selected by the Servicer,
manage, conserve, protect and operate the REO Property in the same manner that
it manages, conserves, protects and operates other foreclosed property for
its
own account, and in the same manner that similar property in the same locality
as the REO Property is managed. The Servicer shall attempt to sell
the same (and may temporarily rent the same) on such terms and conditions as
the
Servicer deems to be in the best interest of the Owner.
If
a
REMIC election is or is to be made with respect to the arrangement under which
the Mortgage Loans and any REO Property are held, the Servicer shall manage,
conserve, protect and operate each REO Property in a manner which does not
cause
such REO Property to fail to qualify as “foreclosure property” within the
meaning of Section 860G(a)(8) of the Code or result in the receipt by such
REMIC of any “income from non-permitted assets” within the meaning of
Section 860F(a)(2)(B) of the Code or any “net income from foreclosure
property” within the meaning of Section 860G(c)(2) of the
Code.
Upon
request, with respect to any REO Property, the Servicer shall furnish to the
Owner a statement covering the Servicer’s efforts in connection with the sale of
that REO Property and any rental of the REO Property incidental to the sale
thereof for the previous month (together with an operating
statement).
Subsection
11.13 Servicing Compensation. As
compensation for its services hereunder, the Servicer shall be entitled to
retain the Servicing Fee from interest payments on the Mortgage
Loans. Additional servicing compensation in the form of assumption
fees, late payment charges and other ancillary income shall be retained by
the
Servicer to the extent not required to be deposited in the Custodial
Account. The Servicer shall be required to pay all expenses incurred
by it in connection with its servicing activities hereunder and shall not be
entitled to reimbursement therefor except as specifically provided for
herein.
Subsection
11.14 Distributions. On
each Remittance Date the Servicer shall remit by wire transfer of immediately
available funds to the account designated in writing by the Purchaser of record
on the preceding Record Date (a) all Monthly Payments due in the Due
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Period
relating to such Remittance Date and received
by the Servicer prior to the related Determination Date, plus (b) all
amounts, if any, which the Servicer is obligated to distribute pursuant to
Subsection 11.16, plus (c) any amounts attributable to
Principal Prepayments received in the calendar month preceding the month in
which the Remittance Date occurs, together with any additional interest required
to be deposited in the Custodial Account in connection with such Principal
Prepayments in accordance with Subsection 11.04(i), minus
(d) all amounts that may be withdrawn from the Custodial Account pursuant
to Subsections 11.05(b) through (e).
With
respect to any remittance received by the Purchaser after the Business Day
on
which such payment was due, the Servicer shall pay to the Purchaser interest
on
any such late payment at an annual rate equal to the Prime Rate, adjusted as
of
the date of each change, plus three percent (3%), but in no event greater than
the maximum amount permitted by applicable law. Such interest shall
be paid by the Servicer to the Purchaser on the date such late payment is made
and shall cover the period commencing with the Business Day on which such
payment was due and ending with the Business Day immediately preceding the
Business Day on which such payment is made, both inclusive. The
payment by the Servicer of any such interest shall not be deemed an extension
of
time for payment or a waiver of any Event of Default by the
Servicer.
Subsection
11.15 Statements to the Purchaser. Not
later than the 10th calendar
day of
each month (or, if such 10th day is
not a
Business Day, the following Business Day), the Servicer shall forward to the
Purchaser in hard copy and electronic format mutually acceptable to the
Purchaser and the Seller, a statement, substantially in the form of, and
containing the information fields set forth on, Exhibit 9 and
certified by a Servicing Officer. Such statement shall also include
information regarding delinquencies on Mortgage Loans, indicating the number
and
aggregate principal amount of Mortgage Loans which are delinquent (including
number of days delinquent through liquidation of the related REO Property)
and
the book value of any REO Property. The Servicer shall submit to the
Purchaser monthly a liquidation report with respect to each Mortgaged Property
sold in a foreclosure sale as of the related Record Date and not previously
reported. Such liquidation report shall be incorporated into the
remittance report delivered to Purchaser in the form of Exhibit 9
hereto.
The
Servicer shall furnish to the Purchaser an individual loan accounting report
in
hard copy and electronic format mutually acceptable to the Purchaser and the
Seller, as of the last Business Day of each month, in the Purchaser’s assigned
loan number order (provided that such loan numbers previously have been
provided in writing by the Purchaser to the Servicer) to document Mortgage
Loan
payment activity on an individual Mortgage Loan basis. With respect
to each month, the corresponding individual loan accounting report shall be
received by the Purchaser no later than the fifth Business Day of the following
month, which report shall contain the following:
(i) with
respect to each Monthly Payment, the amount of such remittance allocable to
principal (including a separate breakdown of any Principal Prepayment, including
the date of such prepayment, along with a detailed report of interest on
principal prepayment amounts remitted in accordance with
Subsection 11.14);
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(ii) with
respect to each Monthly Payment, the amount of such remittance allocable to
interest; and
(iii) the
next actual due date for each Mortgage Loan.
In
addition, upon request, the Servicer shall furnish to each Person who was a
Purchaser of the Mortgage Loans at any time during the preceding calendar year
copies of all Monthly Remittance Advices sent by the Servicer to such Purchaser
during such calendar year.
The
Servicer shall prepare and file any and all tax returns, information statements
or other filings required to be delivered to any governmental taxing authority
or to the Purchaser pursuant to any applicable law with respect to the Mortgage
Loans and the transactions contemplated hereby. In addition, the
Servicer shall provide the Purchaser with such information concerning the
Mortgage Loans as is necessary for such Purchaser to prepare federal income
tax
returns as the Purchaser may reasonably request from time to time.
Subsection
11.16 Advances by the Servicer. On
the Business Day immediately preceding each Remittance Date, the Servicer shall
either (a) deposit in the Custodial Account from its own funds an amount
equal to the aggregate amount of all Monthly Payments (with interest adjusted
to
the Mortgage Loan Remittance Rate) which were due on the Mortgage Loans during
the applicable Due Period and which were delinquent at the close of business
on
the immediately preceding Determination Date (each such advance, a
“P&I Advance”),
(b) cause to be made an appropriate entry in the records of the Custodial
Account that amounts held for future distribution have been, as permitted by
this Subsection 11.16, used by the Servicer in discharge of any such
P&I Advance
or (c) make P&I Advances in the form of any combination of (a) or
(b) aggregating the total amount of P&I Advances
to be made. Any amounts held for future distribution and so used
shall be replaced by the Servicer by deposit in the Custodial Account on or
before any future Remittance Date if funds in the Custodial Account on such
Remittance Date shall be less than payments to the Purchaser required to be
made
on such Remittance Date. The Servicer’s obligation to make
P&I Advances
as to any Mortgage Loan will continue through the last Monthly Payment due
prior
to the payment in full of a Mortgage Loan, or through the last Remittance Date
prior to the Remittance Date for the distribution of all other payments or
recoveries (including proceeds under any title, hazard or other insurance
policy, or condemnation awards) with respect to a Mortgage Loan;
provided, however, that such obligation shall cease
(i) for any Mortgage Loan and on any Remittance Date that the distribution
of all Liquidation Proceeds and other payments or recoveries (including
Insurance Proceeds and Condemnation Proceeds) occurs with respect to such
Mortgage Loan or (ii) if the Servicer, in its good faith judgment,
determines that P&I Advances
would not be recoverable pursuant to
Subsection 11.05(d). The determination by the Servicer
that a P&I Advance,
if made, would be nonrecoverable, shall be evidenced by an Officer’s Certificate
of the Servicer, delivered to the Purchaser, which details the reasons for
such
determination.
Subsection
11.17 Assumption Agreements. The
Servicer will use its best efforts to enforce any “due-on-sale” provision
contained in any Mortgage or Mortgage Note, provided that the Servicer
shall permit such assumption if so required in accordance with the terms of
the
Mortgage or the Mortgage Note. When the Mortgaged Property has been
conveyed by the Mortgagor, the Servicer will, to the extent it has knowledge
of
such conveyance, exercise
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its
rights to accelerate the maturity of such
Mortgage Loan under the “due-on-sale” clause applicable thereto;
provided, however, the Servicer will not exercise such rights
if prohibited by law from doing so. In connection with any such
assumption, the outstanding principal amount, the Monthly Payment or the
Mortgage Interest Rate of the related Mortgage Note shall not be changed, and
the term of the Mortgage Loan will not be increased or decreased. If
an assumption is allowed pursuant to this Subsection 11.17, the
Servicer is authorized to enter into a substitution of liability agreement
with
the purchaser of the Mortgaged Property pursuant to which the original Mortgagor
is released from liability and the purchaser of the Mortgaged Property is
substituted as Mortgagor and becomes liable under the Mortgage
Note.
Subsection
11.18 Satisfaction of Mortgages and Release of
Mortgage Files. Upon
the payment in full of any Mortgage Loan, or the receipt by the Servicer of
a
notification that payment in full will be escrowed in a manner customary for
such purposes, the Servicer will obtain the portion of the Mortgage File that
is
in the possession of the Purchaser or its designee, prepare and process any
required satisfaction or release of the Mortgage and notify the Purchaser in
accordance with the provisions of this Agreement. The Purchaser
agrees to deliver to the Servicer the original Mortgage Note for any Mortgage
Loan not later than three (3) Business Days following its receipt of a
notice from the Servicer that such a payment in full has been received or that
a
notification has been received that such a payment in full shall be
made. Such Mortgage Note shall be held by the Servicer, in trust, for
the purpose of canceling such Mortgage Note and delivering the cancelled
Mortgage Note to the Mortgagor in a timely manner as and to the extent provided
under applicable state law. If the Mortgage has been recorded in the
name of MERS or its designee, the Servicer shall take all necessary action
to
effect the release of the Mortgage Loan on the records of MERS.
If
the
Servicer grants a satisfaction or release of a Mortgage without having obtained
payment in full of the indebtedness secured by the Mortgage or should the
Servicer otherwise prejudice any right the Purchaser may have under the mortgage
instruments, the Servicer, upon written demand of the Purchaser, shall remit
to
the Purchaser the Stated Principal Balance of the related Mortgage Loan by
deposit thereof in the Custodial Account. The Fidelity Bond shall
insure the Servicer against any loss it may sustain with respect to any Mortgage
Loan not satisfied in accordance with the procedures set forth
herein.
Subsection
11.19 Annual Statement as to Compliance. The
Servicer shall deliver to the Purchaser on or before March 15th of each
year
beginning March 15, 2008, an Officer’s Certificate stating that (1) a
review of the activities of the Servicer during the preceding calendar year
and
if performance under this Agreement has been made under such officer’s
supervision, and (2) to the best of such officer’s knowledge, based on such
review, the Servicer has fulfilled all its obligations under this Agreement
throughout such year, or, if there has been a default in the fulfillment of
any
such obligation, specifying each such default known to such officer and the
nature and status thereof and the action being taken by the Servicer to cure
such default.
The
obligations of the Servicer under this Section 11.19 apply to the
Servicer for any year in which the Servicer during the prior calendar year
(or
any portion thereof) serviced a Mortgage Loan pursuant to this Agreement,
whether or not the Servicer is acting as the servicer at the time such statement
is required to be delivered.
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Subsection
11.20 Annual Independent Public Accountants’ Servicing
Report or Attestation. On
or before March 15th of each
year
beginning March 15, 2008, the Servicer, at its expense, shall cause a firm
of
independent public accountants which is a member of the American Institute
of
Certified Public Accountants to furnish a statement to the Purchaser to the
effect that such firm has, with respect to the Servicer’s overall servicing
operations, examined such operations in accordance with the requirements of
the
Uniform Single Attestation Program for Mortgage Bankers, stating such firm’s
conclusions relating thereto.
The
obligations of the Servicer under this Section 11.20 apply to the
Servicer for any year in which the Servicer during the prior calendar year
(or
any portion thereof) serviced a Mortgage Loan pursuant to this Agreement,
whether or not the Servicer is acting as the servicer at the time such statement
is required to be delivered.
Subsection
11.21 Servicer Shall Provide Access and Information as
Reasonably Required. The
Servicer shall provide to the Purchaser, and for any Purchaser insured by FDIC
or NAIC, the supervisory agents and examiners of FDIC and OTS or NAIC, access
to
any documentation regarding the Mortgage Loans which may be required by
applicable regulations. Such access shall be afforded without charge,
but only upon reasonable request, during normal business hours and at the
offices of the Servicer.
In
addition, the Servicer shall furnish upon request by the Purchaser, during
the
term of this Agreement, such periodic, special or other reports or information,
whether or not provided for herein, as shall be necessary, reasonable and
appropriate with respect to the purposes of this Agreement and applicable
regulations, including the reports required to be delivered to Seller pursuant
to Section 34 of the Agreement, in the form specified in, and containing
the information required by, such Section. All such reports or
information shall be provided by and in accordance with all reasonable
instructions and directions the Purchaser may require. The Servicer
agrees to execute and deliver all such instruments and take all such action
as
the Purchaser, from time to time, may reasonably request in order to effectuate
the purposes and to carry out the terms of this Agreement.
Subsection
11.22 Transfer of Servicing. On
the related Transfer Date, if any, the Purchaser, or its designee, shall assume
all servicing responsibilities related to, and the Seller cease all servicing
responsibilities related to, the related Mortgage Loans subject to such Transfer
Date. On or prior to the related Transfer Date, the Seller shall, at
its sole cost and expense, take such steps as may be necessary or appropriate
to
effectuate and evidence the transfer of the servicing of the related Mortgage
Loans to the Purchaser, or its designee, including but not limited to the
following:
(a) Notice
to Mortgagors. The Seller shall mail to the Mortgagor of each
related Mortgage Loan a letter advising such Mortgagor of the transfer of the
servicing of the related Mortgage Loan to the Purchaser, or its designee, in
accordance with the ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ National Affordable Housing Act of 1990,
as amended; provided, however, the content and format of the
letter shall have the prior approval of the Purchaser. On the
Transfer Date, the Seller shall provide the Purchaser with a log of all such
related notices as evidence such letters were mailed.
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(b) Notice
to Taxing Authorities and Insurance Companies. The Seller shall
transmit or cause to be transmitted to the applicable taxing authorities and
insurance companies (including primary mortgage insurance policy insurers,
if
applicable) and/or agents, notification of the transfer of the servicing to
the
Purchaser, or its designee, and instructions to deliver all notices, tax bills
and insurance statements, as the case may be, to the Purchaser from and after
the related Transfer Date. The Seller shall provide the Purchaser
with copies of all such notices no later than the related Transfer
Date.
(c) Delivery
of Servicing Records. The Seller shall forward to the Purchaser,
or its designee, all servicing records and the Servicing File in the Seller’s
possession relating to each related Mortgage Loan.
(d) Escrow
Payments. The Seller shall provide the Purchaser, or its
designee, with immediately available funds by wire transfer in the amount of
the
net Escrow Payments and suspense balances and all loss draft balances associated
with the related Mortgage Loans. Net Escrow Payments shall mean the
positive escrow balances as of the last Cut-off Date prior to the related
Transfer Date. The Seller shall provide the Purchaser with an
accounting statement, in electronic format acceptable to the Purchaser in its
sole discretion, of Escrow Payments and suspense balances and loss draft
balances sufficient to enable the Purchaser to reconcile the amount of such
payment with the accounts of the Mortgage Loans. Additionally, the
Seller shall wire transfer (or transfer or cause to be transferred by other
similar means) to the Purchaser the amount of any agency, trustee or prepaid
Mortgage Loan payments and all other similar amounts held by the
Seller.
(e) Payoffs
and Assumptions. The Seller shall provide to the Purchaser, or
its designee, copies of all assumption and payoff reports generated by the
Seller on the related Mortgage Loans from the related Cut-off Date to the
related Transfer Date.
(f) Mortgage
Payments Received Prior to Transfer Date. Prior to the related
Transfer Date all payments received by the Seller on each related Mortgage
Loan
shall be properly applied by the Seller to the account of the particular
Mortgagor.
(g) Mortgage
Payments Received after Transfer Date. The amount of any related
Monthly Payments received by the Seller after the related Transfer Date shall
be
forwarded to the Purchaser by overnight mail on the date of receipt or by wire
transfer on the next succeeding Business Day. The Seller shall notify
the Purchaser of the particulars of the payment, which notification requirement
shall be satisfied if the Seller forwards with its payment sufficient
information to permit appropriate processing of the payment by the
Purchaser. The Seller shall assume full responsibility for the
necessary and appropriate legal application of such Monthly Payments received
by
the Seller after the related Transfer Date with respect to related Mortgage
Loans then in foreclosure or bankruptcy; provided, for purposes of this
Agreement, necessary and appropriate legal application of such Monthly Payments
shall include, but not be limited to, endorsement of a Monthly Payment to the
Purchaser with the particulars of the payment such as the account number, dollar
amount, date received and any special Mortgagor application instructions and
the
Seller shall comply with the foregoing requirements with respect to all Monthly
Payments received by the Seller after the related Transfer Date.
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(h) Misapplied
Payments. Misapplied payments shall be processed as
follows:
(i)
All parties shall cooperate in correcting misapplication errors;
(ii) The
party receiving notice of a misapplied payment occurring prior to the related
Transfer Date and discovered after such Transfer Date shall immediately notify
the other party;
(iii) If
a misapplied payment which occurred prior to the related Transfer Date cannot
be
identified and said misapplied payment has resulted in a shortage in a Custodial
Account or Escrow Account, the Seller shall be liable for the amount of such
shortage. The Seller shall reimburse the Purchaser for the amount of
such shortage within thirty (30) days after receipt of written demand
therefor from the Purchaser;
(iv) If
a misapplied payment which occurred prior to the related Transfer Date has
created an improper Purchase Price as the result of an inaccurate outstanding
principal balance, a check shall be issued to the party shorted by the improper
payment application within five (5) Business Days after notice thereof by
the other party; and
(v) Any
check issued under the provisions of this Section 11.22(h) shall be
accompanied by a statement indicating the corresponding Seller and/or the
Purchaser Mortgage Loan identification number and an explanation of the
allocation of any such payments.
(i)
Books and Records. On the related Transfer Date, the books,
records and accounts of the Seller with respect to the related Mortgage Loans
shall be in accordance with all applicable Purchaser requirements.
(j)
Reconciliation. The Seller shall, on or before the related
Transfer Date, reconcile principal balances and make any monetary adjustments
required by the Purchaser. Any such monetary adjustments will be
transferred between the Seller and the Purchaser as appropriate.
(k)
IRS Forms. The Seller shall file or shall cause to be filed
all IRS forms 1099, 1099A, 1098 or 1041 and K-1 which are required to be filed
on or before the related Transfer Date in relation to the servicing and
ownership of the related Mortgage Loans. The Seller shall provide
copies of such forms to the Purchaser upon request and shall reimburse the
Purchaser for any costs or penalties incurred by the Purchaser due to the
Seller’s failure to comply with this paragraph.
Subsection
11.23 Notification of Maturity Date. With
respect to each Mortgage Loan, the Seller 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
if
required under applicable law.
Subsection
11.24 Notification of Adjustments. With
respect to each ARM Mortgage Loan, Seller shall adjust the Mortgage Interest
Rate on the related Interest Rate
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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. Seller shall execute and deliver any and all
necessary notices required under applicable law and the terms of the related
Mortgage Note and Mortgage regarding the Mortgage Interest Rate and the Monthly
Payment adjustments. Seller shall promptly, upon written request
therefor, deliver to the Purchaser such notifications and any additional
applicable data regarding such adjustments and the methods used to calculate
and
implement such adjustments. Upon the discovery by Seller or the
Purchaser that Seller has failed to adjust a Mortgage Interest Rate or a Monthly
Payment pursuant to the terms of the related Mortgage Note and Mortgage, Seller
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
12. The Servicer.
Subsection
12.01 Indemnification; Third Party
Claims. The
Servicer agrees to indemnify and hold the Purchaser and any Successor Servicer
and their respective present and former directors, officers, employees and
agents harmless from any and all claims, losses, damages, penalties, fines,
forfeitures, legal fees and expenses (including, without limitation, any legal
fees and expenses, judgments or expenses relating to such liability, claim,
loss
or damage) and related costs, judgments, and any other costs, fees and expenses
that such parties may sustain in any way related to the Servicer’s
failure:
(a) to
observe and perform any or all of Servicer’s duties, obligations, covenants,
agreements, warranties or representations contained in this Agreement or in
the
related Purchase Price and Terms Agreement; or
(b) to
comply with all applicable requirements contained in this Agreement or the
related Purchase Price and Terms Agreement with respect to the servicing of
the
Mortgage Loan and the transfer of Servicing Rights.
The
Servicer immediately shall notify the Purchaser if a claim is made by a third
party with respect to this Agreement.
For
purposes of this Section, “Purchaser” shall mean the Person then acting as the
Purchaser under this Agreement and any and all Persons who previously were
“Purchasers” under this Agreement and “Successor Servicer” shall mean any Person
designated as the Successor Servicer pursuant to this Agreement and any and
all
Persons who previously were “Successor Servicers” pursuant to this
Agreement.
If
any
action is commenced for which indemnification may be available under this
Subsection 12.01 of which an indemnified party has notice, promptly
after receipt by such indemnified party under this Subsection 12.01
of notice of the commencement of such action, such indemnified party will,
if a
claim in respect thereof is to be made against the indemnifying
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party
under this Subsection 12.01, notify
the indemnifying party in writing of the commencement thereof; but the omission
so to notify the indemnifying party will not relieve the indemnifying party
from
any liability which it may have to any indemnified party under this
Subsection 12.01, except to the extent that it has been prejudiced
in any material respect, or from any liability which it may have, otherwise
than
under this Subsection 12.01. In case any such action is
brought against any indemnified party and it notifies the indemnifying party
of
the commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to
the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party; provided that if the defendants
in any such action include both the indemnified party and the indemnifying
party
and the indemnified party or parties shall have reasonably concluded that there
may be legal defenses available to it or them and/or other indemnified parties
which are different from or additional to those available to the indemnifying
party, the indemnified party or parties shall have the right to select separate
counsel to assert such legal defenses and to otherwise participate in the
defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such
indemnified party of its election so to assume the defense of such action and
approval by the indemnified party of counsel, the indemnifying party will not
be
liable to such indemnified party for expenses incurred by the indemnified party
in connection with the defense thereof unless (i) the indemnified party
shall have employed separate counsel in connection with the assertion of legal
defenses in accordance with the proviso to the next preceding sentence (it
being
understood, however, that the indemnifying party shall not be liable for the
expenses of more than one separate counsel (together with one local counsel,
if
applicable)), (ii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the action or
(iii) the indemnifying party has authorized in writing the employment of
counsel for the indemnified party at the expense of the indemnifying party;
and
except that, if clause (i) or (iii) is applicable, such liability
shall be only in respect of the counsel referred to in such
clause (i) or (iii).
Notwithstanding
anything to the contrary contained herein, in no event shall a termination
of
this Agreement or the Servicer hereunder terminate any indemnification
obligations of the Servicer under this Agreement, which obligations shall
survive any such termination.
Subsection
12.02 Merger or Consolidation of the
Servicer. The
Seller will keep in full effect its existence, rights and franchises as a
national banking association, and will obtain and preserve its qualification
to
do business in each other jurisdiction in which such qualification is or shall
be necessary to protect the validity and enforceability of this Agreement,
or
any of the Mortgage Loans and to perform its duties under this
Agreement.
Any
Person into which the Seller may be merged or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Seller
shall
be a party, or any Person succeeding to the business of the Seller, shall be
the
successor of the Seller hereunder, without the execution or filing of any paper
or any further act on the part of any of the parties hereto, anything herein
to
the contrary notwithstanding; provided, however, that the
successor or surviving Person shall be an institution whose deposits are insured
by FDIC or a
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company
whose business is the origination and
servicing of mortgage loans, unless otherwise consented to by the Purchaser,
which consent shall not be unreasonably withheld, and shall be qualified to
service mortgage loans on behalf of ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac.
Subsection
12.03 Limitation on Liability of the Servicer and
Others. The
duties and obligations of the Servicer shall be determined solely by the express
provisions of this Agreement, the Servicer shall not be liable except for the
performance of such duties and obligations as are specifically set forth in
this
Agreement and no implied covenants or obligations shall be read into this
Agreement against the Servicer. Neither the Servicer nor any of the
directors, officers, employees or agents of the Servicer shall be under any
liability to the Purchaser for any action taken or for refraining from the
taking of any action in accordance with Accepted Servicing Procedures and
otherwise in good faith pursuant to this Agreement or for errors in judgment;
provided, however, that this provision shall not protect the
Servicer against any liability resulting from any breach of any representation
or warranty made herein, or from any liability specifically imposed on the
Servicer herein; and, provided, further, that this provision
shall not protect the Servicer against any liability that would otherwise be
imposed by reason of the willful misfeasance, bad faith or negligence in the
performance of duties or by reason of reckless disregard of the obligations
or
duties hereunder. The Servicer and any director, officer, employee or
agent of the Servicer may rely on any document of any kind which it in good
faith reasonably believes to be genuine and to have been adopted or signed
by
the proper authorities respecting any matters arising
hereunder. Subject to the terms of Subsection 12.01, the
Servicer shall have no obligation to appear with respect to, prosecute or defend
any legal action which is not incidental to the Servicer’s duty to service the
Mortgage Loans in accordance with this Agreement.
Subsection
12.04 Seller and Servicer Not to Resign. With
respect to the retention of the Seller to service the Mortgage Loans hereunder,
the Seller acknowledges that the Purchaser has acted in reliance upon the
Seller’s independent status, the adequacy of its servicing facilities, plan,
personnel, records and procedures, its integrity, reputation and financial
standing and the continuance thereof. Without in any way limiting the
generality of this Section, neither Seller nor Servicer shall assign this
Agreement or the servicing hereunder or delegate its rights or duties hereunder
or any portion thereof, or sell or otherwise dispose of all or substantially
all
of its property or assets, without the prior written approval of the Purchaser,
which consent shall be granted or withheld in the Purchaser’s sole discretion or
upon the determination that the Servicer’s duties hereunder are no longer
permissible under applicable law and such incapacity cannot be cured by the
Servicer. Any such determination permitting the unilateral
resignation of the Servicer shall be evidenced by an Opinion of Counsel to
such
effect delivered to the Purchaser, which Opinion of Counsel shall be in form
and
substance acceptable to the Purchaser. No such resignation or
assignment shall become effective until a successor has assumed the Servicer’s
responsibilities and obligations hereunder in accordance with
Subsection 14.03.
Section
13. Default.
Subsection
13.01 Events of Default. In
case one or more of the following Events of Default by the Servicer shall occur
and be continuing:
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(a) any
failure by the Servicer to remit to the Purchaser any payment required to be
made under the terms of this Agreement which continues unremedied for a period
of one (1) Business Day after the date upon which written notice of such
failure, requiring the same to be remedied, shall have been given to the
Servicer by the Purchaser;
(b) failure
by the Servicer to duly observe or perform, in any material respect, any other
covenants, obligations or agreements of the Servicer as set forth in this
Agreement which failure continues unremedied for a period of thirty
(30) days (or, in the case of (i) the annual statement of compliance
required under Subsection 11.19, (ii) the annual independent
public accountants’ servicing report or attestation required under
Subsection 11.20, or (iii) the certification required under
Section 15 in the form of Exhibit 16, or (iv) any items
required to be delivered by, or caused to be delivered by, the Seller pursuant
to Sub-Sections 34.04 and 34.05 zero (0) days) after the date
on which written notice of such failure, requiring the same to be remedied,
shall have been given to the Servicer by the Purchaser;
(c) a
decree or order of a court or agency or supervisory authority having
jurisdiction for the appointment of a conservator or receiver or liquidator
in
any insolvency, bankruptcy, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of
its
affairs, shall have been entered against the Servicer and such decree or order
shall have remained in force, undischarged or unstayed for a period of
sixty (60) days;
(d) the
Servicer shall consent to the appointment of a conservator or receiver or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshalling
of
assets and liabilities or similar proceedings of or relating to the Servicer
or
relating to all or substantially all of the Servicer’s property; or
(e) the
Servicer shall admit in writing its inability to pay its debts as they become
due, file a petition to take advantage of any applicable insolvency or
reorganization statute, make an assignment for the benefit of its creditors,
or
voluntarily suspend payment of its obligations;
then,
and
in each and every such case, so long as an Event of Default shall not have
been
remedied, the Purchaser, by notice in writing to the Servicer, may, in addition
to whatever rights the Purchaser may have at law or equity to damages, including
injunctive relief and specific performance, commence termination of all the
rights and obligations of the Servicer under this Agreement and in and to the
Mortgage Loans and the proceeds thereof. Upon receipt by the Servicer
of such written notice from the Purchaser stating that it intends to terminate
the Servicer as a result of such Event of Default, all authority and power
of
the Servicer under this Agreement, whether with respect to the Mortgage Loans
or
otherwise, shall pass to and be vested in the successor appointed pursuant
to
Subsection 14.03. Upon written request from the
Purchaser, the Servicer shall, in accordance with Subsection 11.22
prepare, execute and deliver to a successor any and all documents and other
instruments, place in such successor’s possession all Mortgage Files and do or
cause to be done all other acts or things necessary or appropriate to effect
the
purposes of such notice of termination, including, but not limited to, the
transfer and endorsement or assignment of the Mortgage Loans and related
documents to the successor at the Servicer’s sole expense. The
Servicer agrees to cooperate with the Purchaser and such successor
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in
effecting the termination of the Servicer’s
responsibilities and rights hereunder, including, without limitation, the
transfer to such successor for administration by it of all amounts which shall
at the time be credited by the Servicer to the Custodial Account or Escrow
Account or thereafter received with respect to the Mortgage Loans.
Subsection
13.02 Waiver of Defaults. The
Purchaser may waive any default by the Servicer in the performance of its
obligations hereunder and its consequences. Upon any waiver of a past
default, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been remedied for every purpose of this
Agreement. No such waiver shall extend to any subsequent or other
default or impair any right consequent thereto except to the extent expressly
so
waived.
Section
14. Termination.
Subsection
14.01 Termination.
The respective obligations and responsibilities of the Servicer, as servicer,
shall terminate upon (a) the distribution to the Purchaser of the final
payment or liquidation with respect to the last Mortgage Loan (or advances
of
same by the Servicer); (b) the disposition of all property
acquired upon foreclosure or deed in lieu of foreclosure with respect to the
last Mortgage Loan and the remittance of all funds due hereunder or (c) by
mutual consent of the Servicer and the Purchaser in writing. Upon
written request from the Purchaser in connection with any such termination,
the
Servicer shall prepare, execute and deliver, any and all documents and other
instruments, place in the Purchaser’s possession all Mortgage Files, and do or
accomplish all other acts or things necessary or appropriate to effect the
purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Mortgage Loans and related documents, or
otherwise, at the Purchaser’s sole expense. The Servicer agrees to
cooperate with the Purchaser and such successor in effecting the termination
of
the Servicer’s responsibilities and rights hereunder as servicer, including,
without limitation, the transfer to such successor for administration by it
of
all cash amounts which shall at the time be credited by the Servicer to the
Custodial Account or Escrow Account or thereafter received with respect to
the
Mortgage Loans.
Subsection
14.02 Termination of the Servicer Without
Cause. Notwithstanding
anything herein to the contrary, the Purchaser may terminate the obligations
and
responsibilities of the Servicer in its capacity as Servicer, without cause,
upon payment to the Servicer of a termination fee equal to one and one half
percent (1.5%) of the aggregate outstanding principal balance of the Mortgage
Loans as of the date of such termination. The termination fee
provided for in this Subsection 14.02 shall be paid by the Purchaser
on the applicable Transfer Date.
Subsection
14.03 Successors to the Servicer. Prior
to the termination of the Servicer’s responsibilities and duties under this
Agreement pursuant to Subsections 11.01, 12.04, 13.01,
14.01 or 14.02, the Purchaser shall, (a) succeed to and
assume all of the Servicer’s responsibilities, rights, duties and obligations
under this Agreement or (b) appoint a successor which shall succeed to all
rights and assume all of the responsibilities, duties and liabilities of the
Servicer under this Agreement upon such termination. In connection
with such appointment and assumption, the Purchaser may make such arrangements
for the compensation of such successor out of payments on Mortgage Loans as
it
and such successor shall agree. If the Servicer’s duties,
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responsibilities
and liabilities under this Agreement
shall be terminated pursuant to the aforementioned Subsections, the Servicer
shall discharge such duties and responsibilities during the period from the
date
it acquires knowledge of such termination until the effective date thereof
with
the same degree of diligence and prudence which it is obligated to exercise
under this Agreement, and shall take no action whatsoever that might impair
or
prejudice the rights or financial condition of its successor. The
resignation or removal of the Servicer pursuant to the aforementioned
Subsections shall not become effective until a successor shall be appointed
pursuant to this Subsection 14.03 and shall in no event relieve the
Seller of the representations and warranties made pursuant to
Subsections 7.01 and 7.02 and the remedies available to the
Purchaser under Subsection 7.03, it being understood and agreed that
the provisions of such Subsections 7.01 and 7.02 shall be
applicable to the Seller notwithstanding any such resignation or termination
of
the Servicer, or the termination of this Agreement.
Any
successor appointed as provided herein shall execute, acknowledge and deliver
to
the Servicer and to the Purchaser an instrument accepting such appointment,
whereupon such successor shall become fully vested with all the rights, powers,
duties, responsibilities, obligations and liabilities of the Servicer, with
like
effect as if originally named as a party to this Agreement. Any
termination or resignation of the Servicer or this Agreement pursuant to
Subsections 11.01, 12.04, 13.01, 14.01 or
14.02 shall not affect any claims that the
Purchaser may have against the
Servicer arising prior to any such termination or resignation.
Upon
a
successor’s acceptance of appointment as such, the Servicer shall notify by mail
the Purchaser of such appointment.
Section
15. Cooperation of Seller with a
Reconstitution. The
Seller and the Purchaser agree that with respect to some or all of the Mortgage
Loans, after the related Closing Date, on one or more dates (each, a
“Reconstitution Date”) at the Purchaser’s sole option, the Purchaser may
effect a sale (each, a “Reconstitution”) of some or all of the Mortgage
Loans then subject to this Agreement, without recourse, to:
(a) ▇▇▇▇▇▇
▇▇▇ under its Cash Purchase Program or MBS Program (Special Servicing Option)
(each, a “▇▇▇▇▇▇ Mae Transfer”); or
(b) ▇▇▇▇▇▇▇
Mac (the “▇▇▇▇▇▇▇ Mac Transfer”); or
(c) one
or more third party purchasers in one or more Whole Loan Transfers;
or
(d) one
or more trusts or other entities to be formed as part of one or more
Securitization Transactions;
provided
that the Purchaser shall not enter into more than six (6) Reconstitutions of
the
Mortgage Loans in a Mortgage Loan Package so long as such Mortgage Loans are
being serviced by the Seller under this Agreement; provided however, that the
foregoing limitation shall not prohibit the Purchaser from effecting an
additional Reconstitution of any Mortgage Loans remaining in a
Mortgage Loan Package after completing such six (6)
Reconstitutions.
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The
Seller agrees to execute in connection with any Agency Transfer, any and all
pool purchase contracts, and/or agreements reasonably acceptable to the Seller
among the Purchaser, the Seller, ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac (as the case may
be)
and any servicer in connection with a Whole Loan Transfer, a seller’s warranties
and servicing agreement or a participation and servicing agreement in form
and
substance reasonably acceptable to the parties, and in connection with a
Securitization Transaction, a pooling and servicing agreement in form and
substance reasonably acceptable to the parties or an Assignment and Recognition
Agreement substantially in the form attached hereto as Exhibit 15
(collectively, the agreements referred to herein are designated, the
“Reconstitution Agreements”), together with an opinion of counsel with
respect to such Reconstitution Agreements.
With
respect to each Whole Loan Transfer and each Securitization Transaction entered
into by the Purchaser, the Seller agrees (1) to cooperate fully with the
Purchaser and any prospective purchaser with respect to all reasonable requests
and due diligence procedures; (2) to execute, deliver and perform all
Reconstitution Agreements required by the Purchaser; and (3) to restate the
representations and warranties set forth in this Agreement as of the settlement
or closing date in connection with such Reconstitution or make the
representations and warranties set forth in the related selling/servicing guide
of the servicer or issuer, as the case may be, or such representations or
warranties as may be required by any rating agency or prospective purchaser
of
the related securities or such Mortgage Loans, in connection with such
Reconstitution, provided, however, that the Seller will not be
required to make additional representations and warranties other than customary
servicing representations and warranties. The Seller shall provide to
such servicer or issuer, as the case may be, and any other participants or
purchasers in such Reconstitution: (i) any and all information
and appropriate verification of information which may be reasonably available
to
the Seller or its affiliates, whether through letters of its auditors and
counsel or otherwise, as the Purchaser or any such other participant shall
request; (ii) such additional representations, warranties, covenants,
opinions of counsel, letters from auditors, and certificates of public officials
or officers of the Seller or the Servicer as are reasonably believed necessary
by the Purchaser or any such other participant (including, without limitation,
such revisions to this Agreement relating to the servicing of REO Property
and
the provision of remittance reports as the Purchaser may reasonably believe
to
be necessary to enable such servicer to fulfill its master servicing
obligations) and (iii) to execute, deliver and satisfy all conditions set
forth in any indemnity agreement required by the Purchaser or any such
participant, including, without limitation, an Indemnification and Contribution
Agreement in substantially the form attached hereto as
Exhibit 3. Moreover, the Seller agrees to cooperate with
all reasonable requests made by the Purchaser to effect such Reconstitution
Agreements. The Seller shall indemnify the Purchaser, each Affiliate
of the Purchaser participating in the Reconstitution, each Person who controls
the Purchaser or such Affiliate and each underwriter and initial purchaser
participating in the Reconstitution, and their respective present and former
directors, officers, employees and agents, and hold each of them harmless from
and against any losses, damages, penalties, fines, forfeitures, legal fees
and
expenses and related costs, judgments, and any other costs, fees and expenses
that each of them may sustain arising out of or based upon any untrue statement
or alleged untrue statement of a material fact contained in the information
provided by or on behalf of the Seller regarding the Seller or the Servicer,
the
Seller’s or the Servicer’s servicing practices or the performance of the
Mortgage Loans or the Underwriting Guidelines set forth in any offering document
prepared in connection with any Reconstitution. For purposes of the
previous sentence, “Purchaser” shall mean the Person then
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acting
as the Purchaser under this Agreement and any
and all Persons who previously were “Purchasers” under this
Agreement.
With
respect to any Mortgage Loans sold in a Securitization Transaction in which
the
Servicer is the servicer, the Servicer agrees that on or before
March 15th
of each year beginning March 15, 2006, the Servicer shall deliver to the
depositor, the master servicer (if any) and the trustee for the securitization
trust in the Securitization Transaction, and their officers, directors and
affiliates, a certification in the form attached as Exhibit 16
hereto, executed by the senior officer in charge of servicing at the Servicer
for use in connection with any Form 10-K to be filed with the Securities and
Exchange Commission with respect to the securitization trust. The
Servicer shall indemnify and hold harmless the depositor, the master servicer
(if any) and the trustee, and their respective officers, directors and
Affiliates, from and against any losses, damages, penalties, fines, forfeitures,
legal fees and expenses and related costs, judgments and other costs and
expenses arising out of or based upon any breach of the Servicer’s obligations
under this paragraph or any material misstatement or omission, negligence,
bad faith or willful misconduct of the Servicer in connection
therewith. If the indemnification provided for in the preceding
sentence is unavailable or insufficient to hold harmless any indemnified party,
then the Servicer agrees that it shall contribute to the amount paid or payable
by such indemnified party as a result of the losses, claims, damages or
liabilities of such indemnified party in such proportion as is appropriate
to
reflect the relative fault of such indemnified party, on the one hand, and
the
Servicer, on the other, in connection with a breach of the Servicer’s
obligations under this paragraph or any material misstatement or omission,
negligence, bad faith or willful misconduct of the Servicer in connection
therewith.
All
Mortgage Loans not sold or transferred pursuant to a Reconstitution shall remain
subject to this Agreement and shall continue to be serviced in accordance with
the terms of this Agreement, and with respect thereto this Agreement shall
remain in full force and effect.
Section
16. Notices. All
demands, notices and communications hereunder shall be in writing and shall
be
given via email, facsimile transmission or registered or certified mail to
the
person at the address set forth below:
|
|
(a)
|
if
to the Purchaser:
|
|
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇ Mortgage Capital Holdings
LLC.
|
|
|
1221
Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
|
|
|
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
|
|
|
Attention: ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ – Whole Loan Operations
Manager
|
|
|
Fax: ▇▇▇-▇▇▇-▇▇▇▇
|
|
|
Email:
▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
|
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|
|
with
copies to:
|
|
|
|
▇▇▇▇
▇▇▇▇▇▇▇▇
|
|
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇ – Servicing Oversight
|
|
|
▇▇▇▇
▇-▇▇▇ ▇▇▇
|
|
|
▇▇▇▇▇
▇▇▇
|
|
|
▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
|
|
|
Fax:
▇▇▇-▇▇▇-▇▇▇▇
|
|
|
Email:
▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
|
|
|
▇▇▇▇▇
▇▇▇▇▇▇
|
|
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇ – RFPG
|
|
|
▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
|
|
|
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
|
|
|
Fax:
▇▇▇-▇▇▇-▇▇▇▇
|
|
|
Email:
▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
|
|
|
(b)
if to the Servicer:
|
|
|
US
Bank, N.A.
|
|
|
▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
|
|
|
▇▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
|
Attention: [
]
|
|
|
Fax: [
]
|
|
|
Email: [______________________]
|
|
|
|
(c)
|
if
to the Seller:
|
|
|
US
Bank, N.A.
|
|
|
▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
|
|
|
▇▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
|
Attention: [___________________]
|
|
|
Fax: [________________________]
|
|
|
Email: [_______________________]
|
|
or
such
other address as may hereafter be furnished to the other party by like
notice. Any such demand, notice or communication hereunder shall be
deemed to have been received on the date delivered to or received at the
premises of the addressee (as evidenced, in the case of registered or certified
mail, by the date noted on the return receipt).
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Section
17. Severability Clause. Any
part, provision representation or warranty of this Agreement which is prohibited
or unenforceable or is held to be void or unenforceable in any jurisdiction
shall be ineffective, as to such jurisdiction, to the extent of such prohibition
or unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction as to any Mortgage
Loan shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties
hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof. If the invalidity of any part,
provision, representation or warranty of this Agreement shall deprive any party
of the economic benefit intended to be conferred by this Agreement, the parties
shall negotiate, in good-faith, to develop a structure the economic effect
of
which is nearly as possible the same as the economic effect of this Agreement
without regard to such invalidity.
Section
18. No Partnership. Nothing
herein contained shall be deemed or construed to create a co-partnership or
joint venture between the parties hereto and the services of the Servicer shall
be rendered as an independent contractor and not as agent for the
Purchaser.
Section
19. Counterparts. This
Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and
all such counterparts shall constitute one and the same instrument.
Section
20. Governing Law Jurisdiction; Consent to
Service of Process. THIS
AGREEMENT SHALL BE DEEMED IN EFFECT WHEN A FULLY EXECUTED COUNTERPART THEREOF
IS
RECEIVED BY THE PURCHASER IN THE STATE OF NEW YORK AND SHALL BE DEEMED TO HAVE
BEEN MADE IN THE STATE OF NEW YORK. THIS AGREEMENT SHALL BE GOVERNED
BY THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ITS
CHOICE OF LAW RULES AND PRINCIPLES. EACH OF THE PURCHASER AND THE
SELLER IRREVOCABLY (I) SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE COURTS
OF THE STATE OF NEW YORK AND THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA
FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT; (II) WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM IN ANY ACTION OR
PROCEEDING IN ANY SUCH COURT; (III) AGREES THAT A FINAL JUDGMENT IN ANY
ACTION OR PROCEEDING IN ANY SUCH COURT SHALL BE CONCLUSIVE AND MAY BE ENFORCED
IN ANY OTHER JURISDICTION BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY LAW; AND (IV) CONSENTS TO SERVICE OF PROCESS UPON IT BY MAILING
A COPY THEREOF BY CERTIFIED MAIL ADDRESSED TO IT AS PROVIDED FOR NOTICES
HEREUNDER.
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Section
21. Mandatory Delivery; Grant of
Security Interest. The
sale and delivery on the related Closing Date of the Mortgage Loans described
on
the related Mortgage Loan Schedule is mandatory from and after the date of
the
execution of the related Purchase Price and Terms Agreement, it being
specifically understood and agreed that each Mortgage Loan is unique and
identifiable on the date hereof and that an award of money damages would be
insufficient to compensate the Purchaser for the losses and damages incurred
by
the Purchaser (including damages to prospective purchasers of the Mortgage
Loans) in the event of the Seller’s failure to deliver (i) each of the
related Mortgage Loans or (ii) one or more Qualified Substitute Mortgage
Loans or (iii) one or more Mortgage Loans otherwise acceptable to the
Purchaser on or before the related Closing Date. With respect to each
Mortgage Loan purchased hereunder, the Seller hereby grants to the Purchaser
a
lien on and a continuing security interest in each Mortgage Loan and each
document and instrument evidencing each such Mortgage Loan to secure the
performance by the Seller of its obligations under the related Purchase Price
and Terms Agreement, and the Seller agrees that it shall hold such Mortgage
Loans in custody for the Purchaser subject to the Purchaser’s (i) right to
reject any Mortgage Loan (or Qualified Substitute Mortgage Loan) under the
terms
of this Agreement and to require another Mortgage Loan (or Qualified Substitute
Mortgage Loan) to be substituted therefor, and (ii) obligation to pay the
Purchase Price for the Mortgage Loans. All rights and remedies of the
Purchaser under this Agreement are distinct from, and cumulative with, any
other
rights or remedies under this Agreement or afforded by law or equity and all
such rights and remedies may be exercised concurrently, independently or
successively.
Section
22. Intention of the
Parties. It
is the intention of the parties that the Purchaser is purchasing, and the Seller
is selling the Mortgage Loans and not a debt instrument of the Seller or another
security. Accordingly, the parties hereto each intend to treat the
transaction for federal income tax purposes as a sale by the Seller, and a
purchase by the Purchaser, of the Mortgage Loans. Moreover, the
arrangement under which the Mortgage Loans are held shall be consistent with
classification of such arrangement as a grantor trust in the event it is not
found to represent direct ownership of the Mortgage Loans. The
Purchaser shall have the right to review the Mortgage Loans and the related
Mortgage Loan Files to determine the characteristics of the Mortgage Loans
which
shall affect the federal income tax consequences of owning the Mortgage Loans
and the Seller shall cooperate with all reasonable requests made by the
Purchaser in the course of such review.
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Section
23. Successors and
Assigns. This
Agreement shall bind and inure to the benefit of and be enforceable by the
Seller and the Purchaser and the respective permitted successors and assigns
of
the Seller and the successors and assigns of the Purchaser. This
Agreement shall not be assigned, pledged or hypothecated by the Seller to a
third party without the prior written consent of the Purchaser, which consent
may be withheld by the Purchaser in its sole discretion. This
Agreement may be assigned, pledged or hypothecated by the Purchaser in whole
or
in part, and with respect to one or more of the Mortgage Loans, without the
consent of the Seller. With respect to any pool of Mortgage Loans
purchased hereunder, the Purchaser may assign or transfer the related Mortgage
Loans and the related rights pursuant to this Agreement no more than four
times. In the event the Purchaser assigns this Agreement, and the
assignee assumes any of the Purchaser’s obligations hereunder, the Seller
acknowledges and agrees to look solely to such assignee, and not to the
Purchaser, for performance of the obligations so assumed and the Purchaser
shall
be relieved from any liability to the Seller with respect thereto.
Section
24. Waivers. No
term or provision of this Agreement may be waived or modified unless such waiver
or modification is in writing and signed by the party against whom such waiver
or modification is sought to be enforced.
Section
25. Exhibits. The
exhibits to this Agreement are hereby incorporated and made a part hereof and
are an integral part of this Agreement.
Section
26. General Interpretive
Principles. For
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires:
(a) the
terms defined in this Agreement have the meanings assigned to them in this
Agreement and include the plural as well as the singular, and the use of any
gender herein shall be deemed to include the other gender;
(b) accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles;
(c) references
herein to “Articles,” “Sections,” “Subsections,” “Paragraphs” and other
subdivisions without reference to a document are to designated Articles,
Sections, Subsections, Paragraphs and other subdivisions of this
Agreement;
(d) reference
to a Subsection without further reference to a Section is a reference to
such Subsection as contained in the same Section in which the reference
appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(e) the
words “herein,” “hereof,” “hereunder” and other words of similar import refer to
this Agreement as a whole and not to any particular provision; and
(f) the
terms “include” and “including” shall mean without limitation by reason of
enumeration.
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Section
27. Reproduction of
Documents. This
Agreement and all documents relating thereto, including, without limitation,
(a) consents, waivers and modifications which may hereafter be executed,
(b) documents received by any party at the closing, and (c) financial
statements, certificates and other information previously or hereafter
furnished, may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The
parties hereto agree that any such reproduction shall be admissible in evidence
as the original itself in any judicial or administrative proceeding, whether
or
not the original is in existence and whether or not such reproduction was made
by a party hereto in the regular course of business, and that any enlargement,
facsimile or further reproduction of such reproduction shall likewise be
admissible in evidence.
Section
28. Amendment. This
Agreement may be amended from time to time by the Purchaser, the Seller and
the
Servicer by written agreement signed by the parties hereto.
Section
29. Confidentiality. Each
of the Purchaser, the Seller and the Servicer shall employ proper procedures
and
standards designed to maintain the confidential nature of the terms of this
Agreement, except to the extent: (a) the disclosure of which is
reasonably believed by such party to be required in connection with regulatory
requirements or other legal requirements relating to its affairs;
(b) disclosed to any one or more of such party’s employees, officers,
directors, agents, attorneys or accountants who would have access to the
contents of this Agreement and such data and information in the normal course
of
the performance of such Person’s duties for such party, to the extent such party
has procedures in effect to inform such Person of the confidential nature
thereof; (c) that is disclosed in a prospectus, prospectus supplement or
private placement memorandum relating to a securitization of the Mortgage Loans
by the Purchaser (or an affiliate assignee thereof) or to any Person in
connection with the resale or proposed resale of all or a portion of the
Mortgage Loans by such party in accordance with the terms of this Agreement;
and
(d) that is reasonably believed by such party to be necessary for the
enforcement of such party’s rights under this Agreement.
Notwithstanding
any other express or implied agreement to the contrary, each of the Purchaser,
the Seller and the Servicer agree and acknowledge that each of them and each
of
their employees, representatives, and other agents may disclose to any and
all
persons, without limitation of any kind, the tax treatment and tax structure
of
the transaction and all materials of any kind (including opinions or other
tax
analyses) that are provided to any of them relating to such tax treatment and
tax structure, except to the extent that confidentiality is reasonably necessary
to comply with U.S. federal or state securities laws. For purposes of
this paragraph, the terms “tax treatment” and “tax structure” have the meanings
specified in Treasury Regulation section 1.6011-4(c).
Section
30. Entire
Agreement. This
Agreement constitutes the entire agreement and understanding relating to the
subject matter hereof between the parties hereto and any prior oral or written
agreements between them shall be deemed to have merged herewith.
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Section
31. Further
Agreements. The
Seller, the Servicer and the Purchaser each agree to execute and deliver to
the
other such reasonable and appropriate additional documents, instruments or
agreements as may be necessary or appropriate to effectuate the purposes of
this
Agreement.
Section
32. No
Solicitation. From
and after the related Closing Date, the Seller agrees that it will not take
any
action or permit or cause any action to be taken by any of its agents or
affiliates, or by any independent contractors on the Seller’s behalf, to
personally, by telephone or mail, solicit a Mortgagor under any Mortgage Loan
for the purpose of refinancing a Mortgage Loan, in whole or in part, without
the
prior written consent of the Purchaser. Notwithstanding the
foregoing, it is understood and agreed that the Seller, the Servicer or any
of
their respective affiliates:
(a) may
advertise its availability for handling refinancings of mortgages in its
portfolio, including the promotion of terms it has available for such
refinancings, through the sending of letters or promotional material, so long
as
it does not specifically target Mortgagors and so long as such promotional
material either is sent to the mortgagors for all of the mortgages in the
servicing portfolio of the Seller, the Servicer and any of their affiliates
(those it owns as well as those serviced for others);
(b) may
provide pay-off information and otherwise cooperate with individual mortgagors
who contact it about prepaying their mortgages by advising them of refinancing
terms and streamlined origination arrangements that are available;
and
(c) may
offer to refinance a Mortgage Loan made within thirty (30) days
following receipt by it of a pay-off request from the related
Mortgagor.
Promotions
undertaken by the Seller or the Servicer or by any affiliate of the Seller
or
the Servicer which are directed to the general public at large (including,
without limitation, mass mailing based on commercially acquired mailing lists,
newspaper, radio and television advertisements), shall not constitute
solicitation under this Section 32.
Section
33. Waiver
of Jury Trial. THE
SELLER AND THE PURCHASER EACH KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES
TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
Section
34. Compliance
With Regulation AB
Subsection
34.01 Intent of the
Parties; Reasonableness.
The
Purchaser and the Seller acknowledge and agree that the purpose of Section
34 of
this Agreement is to facilitate compliance by the Purchaser and any Depositor
with the provisions of Regulation AB and related rules and regulations of the
Commission. Although Regulation AB is applicable by its terms only to
offerings of asset-backed securities that are
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registered
under the Securities Act, the Seller
acknowledges that investors in privately offered securities may require that
the
Purchaser or any Depositor provide comparable disclosure in unregistered
offerings. References in this Agreement to compliance with Regulation
AB include provision of comparable disclosure in private offerings.
Neither
the Purchaser nor any Depositor shall exercise its right to request delivery
of
information or other performance under these provisions other than in good
faith, or for purposes other than compliance with the Securities Act, the
Exchange Act and the rules and regulations of the Commission thereunder (or
the
provision in a private offering of disclosure comparable to that required under
the Securities Act). The Seller acknowledges that interpretations of
the requirements of Regulation AB may change over time, whether due to
interpretive guidance provided by the Commission or its staff, consensus among
participants in the asset-backed securities markets, advice of counsel, or
otherwise, and agrees to comply with requests made by the Purchaser or any
Depositor in good faith for delivery of information under these provisions
on
the basis of evolving interpretations of Regulation AB. In connection
with any Securitization Transaction, the Seller shall cooperate fully with
the
Purchaser to deliver to the Purchaser (including any of its assignees or
designees) and any Depositor, any and all statements, reports, certifications,
records and any other information necessary in the good faith determination
of
the Purchaser or any Depositor to permit the Purchaser or such Depositor to
comply with the provisions of Regulation AB, together with such disclosures
relating to the Seller, any Subservicer, any Third-Party Originator and the
Mortgage Loans, or the servicing of the Mortgage Loans, reasonably believed
by
the Purchaser or any Depositor to be necessary in order to effect such
compliance.
Subsection
34.02 Additional Representations and
Warranties of the Seller.
(a) The
Seller shall be deemed to represent to the Purchaser and to any Depositor,
as of
the date on which information is first provided to the Purchaser or any
Depositor under Subsection 34.03 that, except as disclosed in writing to
the Purchaser or such Depositor prior to such date: (i) the Seller is
not aware and has not received notice that any default, early amortization
or
other performance triggering event has occurred as to any other securitization
due to any act or failure to act of the Seller; (ii) the Seller has not been
terminated as servicer in a residential mortgage loan securitization, either
due
to a servicing default or to application of a servicing performance test or
trigger; (iii) no material noncompliance with the applicable servicing criteria
with respect to other securitizations of residential mortgage loans involving
the Seller as servicer has been disclosed or reported by the Seller; (iv) no
material changes to the Seller’s policies or procedures with respect to the
servicing function it will perform under this Agreement and any Reconstitution
Agreement for mortgage loans of a type similar to the Mortgage Loans have
occurred during the three-year period immediately preceding the related
Securitization Transaction; (v) there are no aspects of the Seller’s financial
condition that could have a material adverse effect on the performance by the
Seller of its servicing obligations under this Agreement or any Reconstitution
Agreement; (vi) there are no material legal or governmental proceedings pending
(or known to be contemplated) against the Seller, any Subservicer or any
Third-Party Originator; and (vii) there are no affiliations, relationships
or
transactions relating to the Seller, any Subservicer or any Third-Party
Originator with respect to any Securitization Transaction and any party thereto
identified by the related Depositor of a type described in Item 1119 of
Regulation AB.
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(b) If
so requested by the Purchaser or any Depositor on any date following the date
on
which information is first provided to the Purchaser or any Depositor under
Subsection 34.03, the Seller shall, within five Business Days following
such request, confirm in writing the accuracy of the representations and
warranties set forth in paragraph (a) of this Section or, if any such
representation and warranty is not accurate as of the date of such request,
provide reasonably adequate disclosure of the pertinent facts, in writing,
to
the requesting party.
Subsection
34.03 Information to Be Provided by
the Seller.
In
connection with any Securitization Transaction the Seller shall (i) within
five
Business Days following request by the Purchaser or any Depositor, provide
to
the Purchaser and such Depositor (or, as applicable, cause each Third-Party
Originator and each Subservicer to provide), in writing and in form and
substance reasonably satisfactory to the Purchaser and such Depositor, the
information and materials specified in paragraphs (a), (b), (c) and (f) of
this
Section, and (ii) as promptly as practicable following notice to or discovery
by
the Seller, provide to the Purchaser and any Depositor (in writing and in form
and substance reasonably satisfactory to the Purchaser and such Depositor)
the
information specified in paragraph (d) of this Section.
(a) If
so requested by the Purchaser or any Depositor, the Seller shall provide such
information regarding (i) the Seller, as originator of the Mortgage Loans
(including as an acquirer of Mortgage Loans from a Qualified Correspondent),
or
(ii) each Third-Party Originator, and (iii) as applicable, each Subservicer,
as
is requested for the purpose of compliance with Items 1103(a)(1), 1105, 1110,
1117 and 1119 of Regulation AB. Such information shall include, at a
minimum:
(A) the
originator’s form of organization;
(B) a
description of the originator’s origination program and how long the originator
has been engaged in originating residential mortgage loans, which description
shall include a discussion of the originator’s experience in originating
mortgage loans of a similar type as the Mortgage Loans; information regarding
the size and composition of the originator’s origination portfolio; and
information that may be material, in the good faith judgment of the Purchaser
or
any Depositor, to an analysis of the performance of the Mortgage Loans,
including the originators’ credit-granting or underwriting criteria for mortgage
loans of similar type(s) as the Mortgage Loans and such other information as
the
Purchaser or any Depositor may reasonably request for the purpose of compliance
with Item 1110(b)(2) of Regulation AB;
(C) a
description of any material legal or governmental proceedings pending (or known
to be contemplated) against the Seller, each Third-Party Originator and each
Subservicer; and
(D) a
description of any affiliation or relationship between the Seller, each
Third-Party Originator, each Subservicer and any of the following parties to
a
Securitization Transaction, as such parties are identified to the Seller by
the
Purchaser or any Depositor in writing in advance of such Securitization
Transaction:
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(1) the
sponsor;
(2) the
depositor;
(3) the
issuing entity;
(4) any
servicer;
(5) any
trustee;
(6) any
originator;
(7) any
significant obligor;
(8) any
enhancement or support provider; and
(9) any
other material transaction party.
(b) If
so requested by the Purchaser or any Depositor, the Seller shall provide (or,
as
applicable, cause each Third-Party Originator to provide) Static Pool
Information with respect to the mortgage loans (of a similar type as the
Mortgage Loans, as reasonably identified by the Purchaser as provided below)
originated by (i) the Seller, if the Seller is an originator of Mortgage Loans
(including as an acquirer of Mortgage Loans from a Qualified Correspondent),
and/or (ii) each Third-Party Originator. Such Static Pool Information
shall be prepared in form and substance reasonably satisfactory to the
Purchaser, by the Seller (or Third-Party Originator) on the basis of its
reasonable, good faith interpretation of the requirements of Item 1105(a)(1)-(3)
of Regulation AB. To the extent that there is reasonably available to
the Seller (or Third-Party Originator) Static Pool Information with respect
to
more than one mortgage loan type, the Purchaser or any Depositor shall be
entitled to specify whether some or all of such information shall be provided
pursuant to this paragraph. Such Static Pool Information for each
vintage origination year or prior securitized pool, as applicable, shall be
presented in increments no less frequently than quarterly over the life of
the
mortgage loans included in the vintage origination year or prior securitized
pool. The most recent periodic increment must be as of a date no
later than 135 days prior to the date of the prospectus or other offering
document in which the Static Pool Information is to be included or incorporated
by reference. The Static Pool Information shall be provided in an
electronic format that provides a permanent record of the information provided,
such as a portable document format (pdf) file, or other such electronic format
reasonably required by the Purchaser or the Depositor, as
applicable.
Promptly
following notice or discovery of a material error in Static Pool Information
provided pursuant to the immediately preceding paragraph (including an omission
to include therein information required to be provided pursuant to such
paragraph), the Seller shall provide corrected Static Pool Information to the
Purchaser or any Depositor, as applicable, in the same format in which Static
Pool Information was previously provided to such party by the
Seller.
If
so
requested by the Purchaser or any Depositor, the Seller shall provide (or,
as
applicable, cause each Third-Party Originator to provide), at the expense of
the
requesting party (to the extent of any additional incremental expense associated
with delivery pursuant to this Agreement), such agreed-upon procedures letters
of certified public accountants reasonably acceptable to the Purchaser or
Depositor, as applicable, pertaining to Static Pool Information relating to
prior securitized pools for securitizations closed on or after January 1, 2006
or, in the case of Static Pool Information with respect to the Seller’s or
Third-Party Originator’s originations or purchases, to calendar months
commencing January 1, 2006, as the Purchaser or such Depositor shall reasonably
request. Such letters shall be addressed to and be for the benefit
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of
such parties as the Purchaser or such Depositor
shall designate, which may include, by way of example, any Sponsor, any
Depositor and any broker dealer acting as underwriter, placement agent or
initial purchaser with respect to a Securitization Transaction. Any
such statement or letter may take the form of a standard, generally applicable
document accompanied by a reliance letter authorizing reliance by the addressees
designated by the Purchaser or such Depositor.
(c) If
so requested by the Purchaser or any Depositor, the Seller shall provide such
information regarding the Seller, as servicer of the Mortgage Loans, and each
Subservicer (each of the Seller and each Subservicer, for purposes of this
paragraph, a “Servicer”), as is requested for the purpose of compliance
with Item 1108 of Regulation AB. Such information shall include, at a
minimum:
(A) the
Servicer’s form of organization;
(B) a
description of how long the Servicer has been servicing residential mortgage
loans; a general discussion of the Servicer’s experience in servicing assets of
any type as well as a more detailed discussion of the Servicer’s experience in,
and procedures for, the servicing function it will perform under this Agreement
and any Reconstitution Agreements; information regarding the size, composition
and growth of the Servicer’s portfolio of residential mortgage loans of a type
similar to the Mortgage Loans and information on factors related to the Servicer
that may be material, in the good faith judgment of the Purchaser or any
Depositor, to any analysis of the servicing of the Mortgage Loans or the related
asset-backed securities, as applicable, including, without
limitation:
(1) whether
any prior securitizations of mortgage loans of a type similar to the Mortgage
Loans involving the Servicer have defaulted or experienced an early amortization
or other performance triggering event because of servicing during the three-year
period immediately preceding the related Securitization
Transaction;
(2) the
extent of outsourcing the Servicer utilizes;
(3) whether
there has been previous disclosure of material noncompliance with the applicable
servicing criteria with respect to other securitizations of residential mortgage
loans involving the Servicer as a servicer during the three-year period
immediately preceding the related Securitization Transaction;
(4) whether
the Servicer has been terminated as servicer in a residential mortgage loan
securitization, either due to a servicing default or to application of a
servicing performance test or trigger; and
(5) such
other information as the Purchaser or any Depositor may reasonably request
for
the purpose of compliance with Item 1108(b)(2) of Regulation AB;
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(C) a
description of any material changes during the three-year period immediately
preceding the related Securitization Transaction to the Servicer’s policies or
procedures with respect to the servicing function it will perform under this
Agreement and any Reconstitution Agreements for mortgage loans of a type similar
to the Mortgage Loans;
(D) information
regarding the Servicer’s financial condition, to the extent that there is a
material risk that an adverse financial event or circumstance involving the
Servicer could have a material adverse effect on the performance by the Seller
of its servicing obligations under this Agreement or any Reconstitution
Agreement;
(E) information
regarding advances made by the Servicer on the Mortgage Loans and the Servicer’s
overall servicing portfolio of residential mortgage loans for the three-year
period immediately preceding the related Securitization Transaction, which
may
be limited to a statement by an authorized officer of the Servicer to the effect
that the Servicer has made all advances required to be made on residential
mortgage loans serviced by it during such period, or, if such statement would
not be accurate, information regarding the percentage and type of advances
not
made as required, and the reasons for such failure to advance;
(F) a
description of the Servicer’s processes and procedures designed to address any
special or unique factors involved in servicing loans of a similar type as
the
Mortgage Loans;
(G) a
description of the Servicer’s processes for handling delinquencies, losses,
bankruptcies and recoveries, such as through liquidation of mortgaged
properties, sale of defaulted mortgage loans or workouts; and
(H) information
as to how the Servicer defines or determines delinquencies and charge-offs,
including the effect of any grace period, re-aging, restructuring, partial
payments considered current or other practices with respect to delinquency
and
loss experience.
(d) If
so requested by the Purchaser or any Depositor for the purpose of satisfying
its
reporting obligation under the Exchange Act with respect to any class of
asset-backed securities, the Seller shall (or shall cause each Subservicer
and
Third-Party Originator to) (i) notify the Purchaser and any Depositor in writing
of (A) any material litigation or governmental proceedings pending against
the
Seller, any Subservicer or any Third-Party Originator and (B) any affiliations
or relationships that develop following the closing date of a Securitization
Transaction between the Seller, any Subservicer or any Third-Party Originator
and any of the parties specified in clause (D) of paragraph (a) of this Section
(and any other parties identified in writing by the requesting party) with
respect to such Securitization Transaction, and (ii) provide to the Purchaser
and any Depositor a description of such proceedings, affiliations or
relationships.
(e) As
a condition to the succession to the Seller or any Subservicer as servicer
or
subservicer under this Agreement or any Reconstitution Agreement by any Person
(i) into which
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the
Seller or such Subservicer may be merged or
consolidated, or (ii) which may be appointed as a successor to the Seller or
any
Subservicer, the Seller shall provide to the Purchaser and any Depositor, at
least 15 calendar days prior to the effective date of such succession or
appointment, (x) written notice to the Purchaser and any Depositor of such
succession or appointment and (y) in writing and in form and substance
reasonably satisfactory to the Purchaser and such Depositor, all information
reasonably requested by the Purchaser or any Depositor in order to comply with
its reporting obligation under Item 6.02 of Form 8-K with respect to any class
of asset-backed securities.
(f) In
addition to such information as the Seller, as servicer, is obligated to provide
pursuant to other provisions of this Agreement, if so requested by the Purchaser
or any Depositor, the Seller shall provide such information regarding the
performance or servicing of the Mortgage Loans as is reasonably required by
the
Purchaser or any Depositor to facilitate preparation of distribution reports
in
accordance with Item 1121 of Regulation AB and to permit the Purchaser or such
Depositor to comply with the provisions of Regulation AB relating to Static
Pool
Information regarding the performance of the Mortgage Loans on the basis of
the
Purchaser's or such Depositor's reasonable, good faith interpretation of the
requirements of Item 1105(a)(1)-(3) of Regulation AB (including without
limitation as to the format and content of such Static Pool Information) in
connection with any future securitization by the Purchaser or any Depositor
of
mortgage loans of a similar type as the Mortgage
Loans. Such information shall be provided concurrently with the
monthly reports otherwise required to be delivered by the Servicer under this
Agreement commencing with the first such report due in connection with the
applicable Securitization Transaction.
Subsection
34.04 Servicer Compliance
Statement.
On
or
before March 15 of each calendar year, commencing in 2007, the Seller shall
deliver to the Purchaser and any Depositor a statement of compliance addressed
to the Purchaser and such Depositor and signed by an authorized officer of
the
Seller, to the effect that (i) a review of the Seller’s activities during the
immediately preceding calendar year (or applicable portion thereof) and of
its
performance under this Agreement and any applicable Reconstitution Agreement
during such period has been made under such officer’s supervision, and (ii) to
the best of such officers’ knowledge, based on such review, the Seller has
fulfilled all of its obligations under this Agreement and any applicable
Reconstitution Agreement in all material respects throughout such calendar
year
(or applicable portion thereof) or, if there has been a failure to fulfill
any
such obligation in any material respect, specifically identifying each such
failure known to such officer and the nature and the status
thereof.
The
obligations of the Servicer under this Section 34.04 apply to the
Servicer for any year in which the Servicer during the prior calendar year
(or
any portion thereof) serviced a Mortgage Loan included in such Securitization
Transaction, whether or not the Servicer is acting as the servicer at the time
such statement of compliance is required to be delivered.
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Subsection
34.05 Report on Assessment of Compliance and
Attestation.
(a) On
or before March 15 of each calendar year, commencing in 2007, the Seller
shall:
(i) deliver
to the Purchaser and any Depositor a report (in form and substance reasonably
satisfactory to the Purchaser and such Depositor) regarding the Seller’s
assessment of compliance with the Servicing Criteria during the immediately
preceding calendar year, as required under Rules 13a-18 and 15d-18 of the
Exchange Act and Item 1122 of Regulation AB. Such report shall be
addressed to the Purchaser and such Depositor and signed by an authorized
officer of the Seller, and shall address each of the Servicing Criteria
specified on a certification substantially in the form of Exhibit 17
hereto delivered to the Purchaser concurrently with the execution of this
Agreement;
(ii) deliver
to the Purchaser and any Depositor a report of a registered public accounting
firm reasonably acceptable to the Purchaser and such Depositor that attests
to,
and reports on, the assessment of compliance made by the Seller and delivered
pursuant to the preceding paragraph. Such attestation shall be in
accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the
Securities Act and the Exchange Act;
(iii) cause
each Subservicer, and each Subcontractor determined by the Seller pursuant
to
Subsection 34.06(b) to be “participating in the servicing function”
within the meaning of Item 1122 of Regulation AB, to deliver to the
Purchaser
and any Depositor an assessment of compliance and accountants’ attestation as
and when provided in paragraphs (a) and (b) of this Section; and
(iv) deliver
to the Purchaser, any Depositor and any other Person that will be responsible
for signing the certification (a “Sarbanes Certification”) required by
Rules 13a-14(d) and 15d-14(d) under the Exchange Act (pursuant to Section 302
of
the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002) on behalf of an asset-backed issuer with respect
to a Securitization Transaction a certification in the form attached hereto
as
Exhibit 16.
The
Seller acknowledges that the parties identified in clause (a)(iv) above may
rely
on the certification provided by the Seller pursuant to such clause in signing
a
Sarbanes Certification and filing such with the Commission. Neither
the Purchaser nor any Depositor will request delivery of a certification under
clause (a)(iv) above, unless a Depositor is required under the Exchange Act
to
file an annual report on Form 10-K with respect to an issuing entity whose
asset
pool includes Mortgage Loans.
(b) Each
assessment of compliance provided by a Subservicer pursuant to
Subsection 34.05(a)(i) shall address each of the Servicing Criteria
specified on a certification substantially in the form of Exhibit 17
hereto delivered to the Purchaser concurrently with the execution of this
Agreement or, in the case of a Subservicer subsequently appointed as such,
on or
prior to the date of such appointment. An assessment of compliance
provided by a Subcontractor pursuant to Subsection 34.05(a)(iii) need not
address any elements of the Servicing Criteria other than those specified by
the
Seller pursuant to Subsection 34.06.
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(c) The
obligations of the Servicer, each Subservicer and each Subcontractor under
this
Section 34.05 apply to the Servicer and each Subservicer and
Subcontractor for any year in which the Servicer, such Subservicer or
Subcontractor during the prior calendar year (or any portion thereof) acted
in
such capacity with respect to a Mortgage Loan included in such Securitization
Transaction, whether or not such Servicer, Subservicer or Subcontractor is
acting in such capacity at the time such assessment of compliance and related
accountant’s attestation or Sarbanes Certification is required to be
delivered.
Subsection
34.06 Use of Subservicers and
Subcontractors.
The
Seller shall not hire or otherwise utilize the services of any Subservicer
to
fulfill any of the obligations of the Seller as servicer under this Agreement
or
any Reconstitution Agreement unless the Seller complies with the provisions
of
paragraph (a) of this Section. The Seller shall not hire or otherwise
utilize the services of any Subcontractor, and shall not permit any Subservicer
to hire or otherwise utilize the services of any Subcontractor, to fulfill
any
of the obligations of the Seller as servicer under this Agreement or any
Reconstitution Agreement unless the Seller complies with the provisions of
paragraph (b) of this Section.
(a) The
Seller shall not hire or otherwise utilize the services of any Subservicer
with
respect to the Mortgage Loans without giving the Purchaser or its designee
fifteen (15) calendar days’ advance written notice of the effective date of such
hiring or utilization of a Subservicer, followed by written confirmation of
such
hiring or utilization of a Subservicer on the effective date of such engagement
and indicating the circumstances surrounding such hiring or
utilization. Any notices required by this Subsection 34.06(a) shall
be sent via telecopier or certified or registered mail to the addresses set
forth below: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Servicer Oversight Group, ▇▇▇▇ ▇-▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Telecopy: ▇▇▇-▇▇▇-▇▇▇▇, and emailed to:
▇▇▇▇▇_▇▇▇▇▇▇▇▇_▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, with a copy to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Telecopy: ▇▇▇-▇▇▇-▇▇▇▇, Email: ▇▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇.▇▇▇ (or
such
other address as such Person may otherwise specify to
Seller). The Seller shall cause any Subservicer used by the
Seller (or by any Subservicer) for the benefit of the Purchaser and any
Depositor to comply with the provisions of this Section and with Subsections
34.02, 34.03(c) and (e), 34.04, 34.05 and 34.07 of this Agreement to the same
extent as if such Subservicer were the Seller, and to provide the information
required with respect to such Subservicer under Subsection 34.03(d) of this
Agreement. The Seller shall be responsible for obtaining from each
Subservicer and delivering to the Purchaser and any Depositor any servicer
compliance statement required to be delivered by such Subservicer under
Subsection 34.04, any assessment of compliance and attestation required to
be
delivered by such Subservicer under Subsection 34.05 and any certification
required to be delivered to the Person that will be responsible for signing
the
Sarbanes Certification under Subsection 34.05 as and when required to
be delivered.
(b) It
shall not be necessary for the Seller to seek the consent of the Purchaser
or
any Depositor to the utilization of any Subcontractor. The Seller
shall promptly upon request provide to the Purchaser and any Depositor (or
any
designee of the Depositor, such as a master servicer or administrator) a written
description (in form and substance satisfactory to the Purchaser and such
Depositor) of the role and function of each Subcontractor utilized by the Seller
or any Subservicer, specifying (i) the identity of each such Subcontractor,
(ii)
which (if
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any)
of such Subcontractors are “participating in the
servicing function” within the meaning of Item 1122 of Regulation AB, and (iii)
which elements of the Servicing Criteria will be addressed in assessments of
compliance provided by each Subcontractor identified pursuant to clause (ii)
of
this paragraph.
As
a
condition to the utilization of any Subcontractor determined to be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, the Seller shall cause any such Subcontractor used by the Seller
(or by any Subservicer) for the benefit of the Purchaser and any Depositor
to
comply with the provisions of Subsections 34.05 and 34.07 of this
Agreement to the same extent as if such Subcontractor were the
Seller. The Seller shall be responsible for obtaining from each
Subcontractor and delivering to the Purchaser and any Depositor any assessment
of compliance and attestation required to be delivered by such Subcontractor
under Subsection 34.05, in each case as and when required to be
delivered.
Subsection
34.07 Indemnification;
Remedies.
(a) The
Seller shall indemnify the Purchaser, each affiliate of the Purchaser, the
Depositor and each of the following parties participating in a Securitization
Transaction: each sponsor and issuing entity; each Person responsible
for the preparation, execution or filing of any report required to be filed
with
the Commission with respect to such Securitization Transaction, or for execution
of a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the
Exchange Act with respect to such Securitization Transaction; each broker dealer
acting as underwriter, placement agent or initial purchaser, each Person who
controls any of such parties or the Depositor (within the meaning of Section
15
of the Securities Act and Section 20 of the Exchange Act); and the respective
present and former directors, officers, employees and agents of each of the
foregoing and of the Depositor, and shall hold each of them harmless from and
against any losses, damages, penalties, fines, forfeitures, legal fees and
expenses and related costs, judgments, and any other costs, fees and expenses
that any of them may sustain arising out of or based upon:
(1)(a) any
untrue statement of a material fact contained or alleged to be contained in
any
information, report, certification, accountants’ letter or other material
provided in written or electronic form under this Section 34 by or on
behalf of the Seller, or provided under this Section 34 by or on behalf
of any Subservicer, Subcontractor or Third-Party Originator (collectively,
the
“Seller Information”), or (b) the omission or alleged omission to state
in the Seller Information a material fact required to be stated in the Seller
Information or necessary in order to make the statements therein, in light
of
the circumstances under which they were made, not misleading; provided, by
way
of clarification, that clause (B) of this paragraph shall be construed solely
by
reference to the Seller Information and not to any other information
communicated in connection with a sale or purchase of securities, without regard
to whether the Seller Information or any portion thereof is presented together
with or separately from such other information;
(ii) any
failure by the Seller, any Subservicer, any Subcontractor or any Third-Party
Originator to deliver any information, report, certification, accountants’
letter or other material when and as required under this Section 34,
including any failure by the
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Seller
to identify pursuant to Subsection
34.06(b) any Subcontractor “participating in the servicing function” within
the meaning of Item 1122 of Regulation AB; or
(iii) any
breach by the Seller of a representation or warranty set forth in Subsection
34.02(a) or in a writing furnished pursuant to Subsection 34.02(b)
and made as of a date prior to the closing date of the related Securitization
Transaction, to the extent that such breach is not cured by such closing date,
or any breach by the Seller of a representation or warranty in a writing
furnished pursuant to Subsection 34.02(b) to the extent made as of a date
subsequent to such closing date.
In
the
case of any failure of performance described in clause (a)(ii) of this Section,
the Seller shall promptly reimburse the Purchaser, any Depositor, as applicable,
and each Person responsible for the preparation, execution or filing of any
report required to be filed with the Commission with respect to such
Securitization Transaction, or for execution of a certification pursuant to
Rule
13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to such
Securitization Transaction, for all costs reasonably incurred by each such
party
in order to obtain the information, report, certification, accountants’ letter
or other material not delivered as required by the Seller, any Subservicer,
any
Subcontractor or any Third-Party Originator.
(b) (i) Any
failure by the Seller, any Subservicer, any Subcontractor or any Third-Party
Originator to deliver any information, report, certification, accountants’
letter or other material when and as required under this Section 34, or
any breach by the Seller of a representation or warranty set forth in
Subsection 34.02(a) or in a writing furnished pursuant to Subsection
34.02(b) and made as of a date prior to the closing date of the related
Securitization Transaction, to the extent that such breach is not cured by
such
closing date, or any breach by the Seller of a representation or warranty in
a
writing furnished pursuant to Subsection 34.02(b) to the extent made as
of a date subsequent to such closing date, shall, except as provided in
clause (ii) of this paragraph, immediately and automatically, without
notice or grace period, constitute an Event of Default with respect to the
Seller under this Agreement and any applicable Reconstitution Agreement, and
shall entitle the Purchaser or Depositor, as applicable, in its sole discretion
to terminate the rights and obligations of the Seller as servicer under this
Agreement and/or any applicable Reconstitution Agreement without payment
(notwithstanding anything in this Agreement or any applicable Reconstitution
Agreement to the contrary) of any compensation to the Seller; provided
that to the extent that any provision of this Agreement and/or any applicable
Reconstitution Agreement expressly provides for the survival of certain rights
or obligations following termination of the Seller as servicer, such provision
shall be given effect.
(ii) Any
failure by the Seller, any Subservicer or any Subcontractor to deliver any
information, report, certification or accountants’ letter when and as required
under Subsection 34.04 or 34.05, including (except as provided below) any
failure by the Seller to identify pursuant to Subsection 34.06(b) any
Subcontractor “participating in the servicing function” within the meaning of
Item 1122 of Regulation AB, which continues unremedied for ten calendar days
after the date on which such information, report, certification or accountants’
letter was required to be delivered shall constitute an Event of Default with
respect to the Seller under this Agreement and any applicable Reconstitution
Agreement, and shall entitle the Purchaser or Depositor, as applicable, in
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its
sole discretion to terminate the rights and
obligations of the Seller as servicer under this Agreement and/or any applicable
Reconstitution Agreement without payment (notwithstanding anything in this
Agreement to the contrary) of any compensation to the Seller; provided
that to the extent that any provision of this Agreement and/or any applicable
Reconstitution Agreement expressly provides for the survival of certain rights
or obligations following termination of the Seller as servicer, such provision
shall be given effect.
Neither
the Purchaser nor any Depositor
shall be entitled to terminate the rights and obligations of the Seller pursuant
to this subparagraph (b)(ii) if a failure of the Seller to identify a
Subcontractor “participating in the servicing function” within the meaning of
Item 1122 of Regulation AB was attributable solely to the role or functions
of
such Subcontractor with respect to mortgage loans other than the Mortgage
Loans.
(iii) The Seller shall
promptly reimburse the Purchaser (or any designee of the Purchaser, such as
a
master servicer) and any Depositor, as applicable, for all reasonable expenses
incurred by the Purchaser (or such designee) or such Depositor, as such are
incurred, in connection with the termination of the Seller as servicer and
the
transfer of servicing of the Mortgage Loans to a successor
servicer. The provisions of this paragraph shall not limit whatever
rights the Purchaser or any Depositor may have under other provisions of this
Agreement and/or any applicable Reconstitution Agreement or otherwise, whether
in equity or at law, such as an action for damages, specific performance or
injunctive relief.
[Signature
Page Follows]
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IN
WITNESS WHEREOF, the Purchaser, the Seller and the Servicer have caused their
names to be signed hereto by their respective officers thereunto duly authorized
on the date first above written.
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▇▇▇▇▇▇
▇▇▇▇▇▇▇ MORTGAGE CAPITAL HOLDINGS
LLC
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By: ________________________________________ |
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Name:
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Title:
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US
BANK, N.A.
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By: ________________________________________ |
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Name:
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Title:
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EXHIBIT
1
MORTGAGE
LOAN DOCUMENTS
With
respect to each Mortgage Loan, the Mortgage Loan Documents shall consist of
the
following:
(a) the
original Mortgage Note bearing all intervening endorsements, endorsed “Pay to
the order of _________, without recourse” and signed in the name of the last
endorsee (the “Last Endorsee”) by an authorized officer. To
the extent that there is no room on the face of the Mortgage Notes for
endorsements, the endorsement may be contained on an allonge, if state law
so
allows and the Custodian is so advised by the Seller that state law so
allows. If the Mortgage Loan was acquired by the Seller in a merger,
the endorsement must be by “[Last Endorsee], successor by merger to [name of
predecessor]”. If the Mortgage Loan was acquired or originated by the
Last Endorsee while doing business under another name, the endorsement must
be
by “[Last Endorsee], formerly known as [previous name]”;
(b) the
original of any guarantee executed in connection with the Mortgage
Note;
(c) with
respect to Mortgage Loans that are not Co-op Loans, the original Mortgage with
evidence of recording thereon. With respect to any Co-op Loan, an
original or copy of the Security Agreement. If in connection with any
Mortgage Loan, the Seller cannot deliver or cause to be delivered the original
Mortgage with evidence of recording thereon on or prior to the related Closing
Date because of a delay caused by the public recording office where such
Mortgage has been delivered for recordation or because such Mortgage has been
lost or because such public recording office retains the original recorded
Mortgage, the Seller shall deliver or cause to be delivered to the Custodian,
a
photocopy of such Mortgage, together with (i) in the case of a delay caused
by the public recording office, an Officer’s Certificate of the Seller (or
certified by the title company, escrow agent, or closing attorney) stating
that
such Mortgage has been dispatched to the appropriate public recording office
for
recordation and that the original recorded Mortgage or a copy of such Mortgage
certified by such public recording office to be a true and complete copy of
the
original recorded Mortgage will be promptly delivered to the Custodian upon
receipt thereof by the Seller; or (ii) in the case of a Mortgage where a
public recording office retains the original recorded Mortgage or in the case
where a Mortgage is lost after recordation in a public recording office, a
copy
of such Mortgage certified by such public recording office to be a true and
complete copy of the original recorded Mortgage;
(d) the
originals of all assumption, modification, consolidation or extension
agreements, if any, with evidence of recording thereon;
(e) with
respect to Mortgage Loans that are not Co-op Loans, the original Assignment
of
Mortgage for each Mortgage Loan, in form and substance acceptable for recording
(except with respect to MERS Designated Loans). The Assignment of
Mortgage must be duly recorded only if recordation is either necessary under
applicable law or commonly required by private institutional mortgage investors
in the area where the Mortgaged Property is
EXH.
1-1
located
or on direction of the Purchaser as provided
in this Agreement. If the Assignment of Mortgage is to be recorded,
the Mortgage shall be assigned to the Purchaser. If the Assignment of
Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered
in
blank. If the Mortgage Loan was acquired by the Seller in a merger,
the Assignment of Mortgage must be made by “[Seller], successor by merger to
[name of predecessor]”. If the Mortgage Loan was acquired or
originated by the Seller while doing business under another name, the Assignment
of Mortgage must be by “[Seller], formerly known as [previous
name]”;
(f) with
respect to Mortgage Loans that are not Co-op Loans, the originals of all
intervening assignments of mortgage (if any) evidencing a complete chain of
assignment from the Seller to the Last Endorsee (or, in the case of a MERS
Designated Loan, MERS) with evidence of recording thereon, or if any such
intervening assignment has not been returned from the applicable recording
office or has been lost or if such public recording office retains the original
recorded assignments of mortgage, the Seller shall deliver or cause to be
delivered to the Custodian, a photocopy of such intervening assignment, together
with (i) in the case of a delay caused by the public recording office, an
Officer’s Certificate of the Seller (or certified by the title company, escrow
agent, or closing attorney) stating that such intervening assignment of mortgage
has been dispatched to the appropriate public recording office for recordation
and that such original recorded intervening assignment of mortgage or a copy
of
such intervening assignment of mortgage certified by the appropriate public
recording office to be a true and complete copy of the original recorded
intervening assignment of mortgage will be promptly delivered to the Custodian
upon receipt thereof by the Seller; or (ii) in the case of an intervening
assignment where a public recording office retains the original recorded
intervening assignment or in the case where an intervening assignment is lost
after recordation in a public recording office, a copy of such intervening
assignment certified by such public recording office to be a true and complete
copy of the original recorded intervening assignment;
(g) with
respect to Mortgage Loans that are not Co-op Loans, the original mortgagee
policy of title insurance or, in the event such original title policy is
unavailable, a certified true copy of the related policy binder or commitment
for title certified to be true and complete by the title insurance
company;
(h) the
original or, if unavailable, a copy of any security agreement, chattel mortgage
or equivalent document executed in connection with the Mortgage;
(i) with
respect to any Co-op Loan: (i) a copy of the Co-op Lease and the assignment
of such Co-op Lease, with all intervening assignments showing a complete chain
of title and an assignment thereof by Seller; (ii) the stock certificate
together with an undated stock power relating to such stock certificate executed
in blank; (iii) the recognition agreement of the interests of the Mortgagee
with respect to the Co-op Loan by the residential cooperative housing
corporation, the stock of which was pledged by the related Mortgagor to the
originator of such Co-op Loan; and (iv) copies of the financial statement
filed by the originator as secured party and, if applicable, a filed UCC-3
assignment of the subject security interest showing a complete chain of title,
together with an executed UCC-3 assignment of such security interest by the
Seller in a form sufficient for filing; and
EXH.
1-2
(j) if
any of the above documents has been executed by a person holding a power of
attorney, an original or photocopy of such power certified by the
Seller to be a true and correct copy of the original.
In
the
event an Officer’s Certificate of the Seller is delivered to the Purchaser
because of a delay caused by the public recording office in returning any
recorded document, the Seller shall deliver to the Purchaser, within
90 days of the related Closing Date, an Officer’s Certificate which shall
(i) identify the recorded document, (ii) state that the recorded
document has not been delivered to the Custodian due solely to a delay caused
by
the public recording office, (iii) state the amount of time generally
required by the applicable recording office to record and return a document
submitted for recordation, and (iv) specify the date the applicable
recorded document will be delivered to the Custodian; provided,
however, that any recorded document shall in no event be delivered later
than one year following the related Closing Date. An extension of the
date specified in clause (iv) above may be requested from the
Purchaser, which consent shall not be unreasonably withheld.
▇▇▇.
▇-▇
▇▇▇▇▇▇▇
▇
[▇▇▇▇▇▇▇▇]
▇▇▇.
2-1
EXHIBIT
3
FORM
OF
INDEMNIFICATION AND CONTRIBUTION AGREEMENT
This
INDEMNIFICATION AND CONTRIBUTION AGREEMENT (“Agreement”), dated as of
[_______], 200_, among [________________] (the “Depositor”), a
[______________] corporation (the “Depositor”), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage
Capital Holdings LLC, a New York limited liability company
(“▇▇▇▇▇▇”) and US Bank, N.A., a national banking association (the
“Seller”).
W I T N E S S E T H:
WHEREAS,
the Depositor is acting as depositor and registrant with respect to the
Prospectus, dated [________________], and the Prospectus Supplement to the
Prospectus, [________________] (the “Prospectus Supplement”), relating to
[________________] Certificates (the “Certificates”) to be issued
pursuant to a Pooling and Servicing Agreement, dated as of [________________]
(the “P&S”), among the Depositor, as depositor, [________________],
as servicer (the “Servicer”), and [________________], as trustee (the
“Trustee”);
WHEREAS,
as an inducement to the Depositor to enter into the P&S, and
[____________________] (the “Underwriter[s]”) to enter into the
Underwriting Agreement, dated [____________________] (the “Underwriting
Agreement”), between the Depositor and the Underwriter[s], Seller has agreed
to provide for indemnification and contribution on the terms and conditions
hereinafter set forth;
WHEREAS,
▇▇▇▇▇▇ purchased from Seller certain of the Mortgage Loans underlying the
Certificates (the “Mortgage Loans”) pursuant to a Mortgage Loan Sale and
Servicing Agreement, dated as of June 1, 2007 (the “Sale and Servicing
Agreement”), by and between ▇▇▇▇▇▇ and Seller; and
WHEREAS,
pursuant to Section 15 of the Sale and Servicing Agreement, the Seller has
agreed to provide indemnification for certain information.
NOW
THEREFORE, in consideration of the agreements contained herein, and other
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the Depositor, ▇▇▇▇▇▇ and the Seller agree as
follows:
1. Indemnification
and Contribution.
(a) The
Seller agrees to indemnify and hold harmless the Depositor, ▇▇▇▇▇▇, the
Underwriter[s], and their respective affiliates and their respective present
and
former directors, officers, employees and agents and each person, if any, who
controls the Depositor, ▇▇▇▇▇▇, the Underwriter[s] or such affiliates within
the
meaning of either Section 15 of the Securities Act of
EXH.
3-1
1933,
as amended (the “1933 Act”), or
Section 20 of the Securities Exchange Act of 1934, as amended (the “1934
Act”), against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the 1933 Act,
the
1934 Act or other federal or state statutory law or regulation, at common law
or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in
respect thereof) arise out of or are based in whole or in part upon any untrue
statement or alleged untrue statement of a material fact contained in the
Prospectus Supplement, the Offering Circular, the ABS Informational and
Computational Materials or in the Free Writing Prospectus or any omission or
alleged omission to state in the Prospectus Supplement, the Offering Circular,
the ABS Informational and Computational Materials or in the Free Writing
Prospectus a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances in which they were made,
not misleading, or any such untrue statement or omission or alleged untrue
statement or alleged omission made in any amendment of or supplement to the
Prospectus Supplement, the Offering Circular, the ABS Informational and
Computational Materials or the Free Writing Prospectus and agrees to reimburse
the Depositor, ▇▇▇▇▇▇, the Underwriter[s], or such affiliates and each such
officer, director, employee, agent and controlling person promptly upon demand
for any legal or other expenses reasonably incurred by any of them in connection
with investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred;
provided, however, that Seller shall be liable in any such
case only to the extent that any such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any breach of the representation and
warranty set forth in Section 2(vii) below or (ii) any untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with the Seller Information. The foregoing
indemnity agreement is in addition to any liability which Seller may otherwise
have to the Depositor, ▇▇▇▇▇▇, the Underwriter[s], the Initial Purchaser[s]
their affiliates or any such director, officer, employee, agent or controlling
person of the Depositor, ▇▇▇▇▇▇, the Underwriter[s], or their respective
affiliates.
As
used
herein:
“Seller
Information” means any information relating to Seller, the Mortgage Loans
and/or the underwriting guidelines relating to the Mortgage Loans set forth
in
the Prospectus Supplement, the Offering Circular, the ABS Informational and
Computational Materials or the Free Writing Prospectus [and static pool
information regarding mortgage loans originated or acquired by the Seller [and
included in the Prospectus Supplement, the Offering Circular, the ABS
Informational and Computational Materials or the Free Writing Prospectus]
[incorporated by reference from the website located at
______________].
“Free
Writing Prospectus” means any written communication that constitutes a “free
writing prospectus,” as defined in Rule 405 under the 1933 Act.
“ABS
Informational and Computational Material” means any written communication as
defined in Item 1101(a) of Regulation AB under the 1933 Act and the 1934 Act,
as
amended from time to time.
“Offering
Circular” means the offering circular, dated [__________] relating to the
private offering of the [_______________] Certificates.
EXH.
3-2
“Regulation
AB”: Subpart 229.1100 – Asset Backed Securities (Regulation AB),
17 C.F.R. §§229.1100-229.1123, as such may be amended from time to time, and
subject to such clarification and interpretation as have been provided by the
Commission in the adopting release (Asset-Backed Securities, Securities Act
Release No. 33-8518, 70 Fed. Reg. 1,506–1,631 (January 7, 2005)) or by the staff
of the Commission, or as may be provided by the Commission or its staff from
time to time.
(b) Promptly
after receipt by any indemnified party under this Section 1 of
notice of any claim or the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against any indemnifying
party under this Section 1, notify the indemnifying party in writing
of the claim or the commencement of that action; provided,
however, that the failure to notify an indemnifying party shall not
relieve it from any liability which it may have under this Section 1
except to the extent it has been materially prejudiced by such failure; and
provided,further, however, that the failure to notify any
indemnifying party shall not relieve it from any liability which it may have
to
any indemnified party otherwise than under this
Section 1.
If
any
such claim or action shall be brought against an indemnified party, and it
shall
notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it wishes, jointly with any
other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After
notice from the indemnifying party to the indemnified party of its election
to
assume the defense of such claim or action, except as provided in the following
paragraph, the indemnifying party shall not be liable to the indemnified party
under this Section 1 for any legal or other expenses subsequently
incurred by the indemnified party in connection with the defense thereof other
than reasonable costs of investigation.
Any
indemnified party shall have the right to employ separate counsel in any such
action and to participate in the defense thereof, but the fees and expenses
of
such counsel shall be at the expense of such indemnified party
unless: (i) the employment thereof has been specifically
authorized by the indemnifying party in writing; (ii) such indemnified
party shall have been advised by such counsel that there may be one or more
legal defenses available to it which are different from or additional to those
available to the indemnifying party and in the reasonable judgment of such
counsel it is necessary or appropriate for such indemnified party to employ
separate counsel; or (iii) the indemnifying party has failed to assume the
defense of such action and employ counsel reasonably satisfactory to the
indemnified party, in which case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel at
the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party,
it being understood, however, the indemnifying party shall not, in connection
with any one such action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations
or
circumstances, be liable for the reasonable fees and expenses of more than
one
separate firm of attorneys (in addition to local counsel) at any time for all
such indemnified parties.
Each
indemnified party, as a condition of the indemnity agreements contained in
this
Section 1, shall cooperate with the indemnifying party in the
defense of any such action or
EXH.
3-3
claim. No
indemnifying party shall be
liable for any settlement of any such action effected without its written
consent (which consent shall not be unreasonably withheld), but if settled
with
its written consent or if there be a final judgment for the plaintiff in any
such action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for reasonable fees
and
expenses of counsel, the indemnifying party agrees that it shall be liable
for
any settlement of any proceeding effected without its written consent if
(i) such settlement is entered into more than 30 days after receipt by
such indemnifying party of the aforesaid request and (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement.
(c) If
the indemnification provided for in this Section 1 is unavailable to
an indemnified party, then the indemnifying party, in lieu of indemnifying
such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities,
in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party and the indemnified party, respectively, in connection with
the statements or omissions that result in such losses, claims, damages or
liabilities, as well as any other relevant equitable
considerations. The relative fault of the indemnified party and
indemnifying party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by such parties and their relative knowledge, access to information
and
opportunity to correct or prevent such statement or omission and any other
equitable considerations.
(d) The
indemnity and contribution agreements contained in this Section 1
and the representations and warranties set forth in Section 2 shall
remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by the
Depositor, ▇▇▇▇▇▇, the Underwriter[s], their respective affiliates, directors,
officers, employees or agents or any person controlling the Depositor, ▇▇▇▇▇▇,
the Underwriter[s] or any such affiliate, and (iii) acceptance of and
payment for any of the Offered Certificates or Private
Certificates.
2. Representations
and Warranties. Seller represents and warrants that:
(i) Seller
is validly existing and in good standing under the laws of its jurisdiction
of
formation or incorporation, as applicable, and has full power and authority
to
own its assets and to transact the business in which it is currently
engaged. Seller is duly qualified to do business and is in good
standing in each jurisdiction in which the character of the business transacted
by it or any properties owned or leased by it requires such qualification and
in
which the failure so to qualify would have a material adverse effect on the
business, properties, assets or condition (financial or otherwise) of
Seller;
(ii) Seller
is not required to obtain the consent of any other person or any consent,
license, approval or authorization from, or registration or declaration with,
any
EXH.
3-4
governmental
authority, bureau or agency in
connection with the execution, delivery, performance, validity or enforceability
of this Agreement;
(iii) the
execution, delivery and performance of this Agreement by Seller will not violate
any provision of any existing law or regulation or any order decree of any court
applicable to Seller or any provision of the charter or bylaws of Seller, or
constitute a material breach of any mortgage, indenture, contract or other
agreement to which Seller is a party or by which it may be bound;
(iv) (a) no
proceeding of or before any court, tribunal or governmental body is currently
pending or, (b) to the knowledge of Seller, threatened against Seller or
any of its properties or with respect to this Agreement or the Offered
Certificates, in either case, which would have a material adverse effect on
the
business, properties, assets or condition (financial or otherwise) of
Seller;
(v) Seller
has full power and authority to make, execute, deliver and perform this
Agreement and all of the transactions contemplated hereunder, and has taken
all
necessary corporate action to authorize the execution, delivery and performance
of this Agreement. When executed and delivered, this Agreement will
constitute the legal, valid and binding obligation of each of Seller enforceable
in accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors’ rights generally, by the availability of
equitable remedies, and by limitations of public policy under applicable
securities law as to rights of indemnity and contribution
thereunder;
(vi) this
Agreement has been duly executed and delivered by Seller; and
(vii) the
Seller represents that the Seller Information satisfies the requirements of
the
applicable provisions of Regulation AB.
3.
Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to Seller, will be mailed, delivered
or
faxed or emailed and confirmed by mail [______________________]; if
sent to ▇▇▇▇▇▇, ▇▇▇▇ be mailed, delivered or faxed or emailed and
confirmed by mail to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Holdings LLC, 1221
Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ - Whole Loans
Operations Manager, Fax: [_______], Email: ▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇,
with copies to (i) ▇▇▇▇▇ ▇. ▇▇▇, Esq., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ – Legal Counsel,
Securities, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Fax [_____], Email: ▇▇▇▇▇.▇.▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, and (ii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ – SPG Finance, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Fax [_____], Email: ▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇;
if
to the Depositor, will be mailed, delivered or telegraphed and confirmed to
[____________________]; or if to the Underwriter[s], will be mailed, delivered
or telegraphed and confirmed to [_____________________]; or if to the Initial
Purchaser[s], will be mailed, delivered or telegraphed and confirmed to
[_____________________].
EXH.
3-5
4. Miscellaneous. This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of New York without giving effect to the conflict of laws
provisions thereof. This Agreement shall inure to the benefit of and
be binding upon the parties hereto and their successors and assigns and the
controlling persons referred to herein, and no other person shall have any
right
or obligation hereunder. Neither this Agreement nor any term hereof
may be changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against whom enforcement of the
change, waiver, discharge or termination is sought. This Agreement
may be executed in counterparts, each of which when so executed and delivered
shall be considered an original, and all such counterparts shall constitute
one
and the same instrument. Capitalized terms used but not defined
herein shall have the meanings provided in the P&S.
[SIGNATURE
PAGE FOLLOWS]
EXH.
3-6
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective officers hereunto duly authorized, this __th day
of
[_____________].
| [DEPOSITOR] | |
| By: _____________________________ | |
| Name: | |
| Title: | |
| ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MORTGAGE | |
| CAPITAL HOLDINGS LLC | |
| By: ____________________________ | |
| Name: | |
| Title: |
| US BANK, N.A. | |
| By: ____________________________ | |
| Name: | |
| Title: |
EXH.
3-7
EXHIBIT
4
CUSTODIAL
ACCOUNT CERTIFICATION
_________
__, 200__
US
Bank,
N.A. hereby certifies that it has established the account described below as
a
Custodial Account pursuant to Subsection 11.04 of the Mortgage Loan
Sale and Servicing Agreement, dated as of June 1, 2007, Fixed and
Adjustable Rate Mortgage Loans.
Title of
Account: “US Bank, N.A., in trust for ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Mortgage Capital Holdings LLC as Purchaser of Mortgage Loans and various
Mortgagors.”
Account
Number: __________________________
Address
of office or
branch
of
[_____________________]
at
which
the Custodial
|
Account
is maintained:
|
______________________
|
|
|
______________________
|
|
|
______________________
|
|
|
US
BANK, N.A.
|
|
|
|
By:
____________________________
|
|
|
Name:
|
|
|
Title:
|
EXH.
4-1
EXHIBIT
5
CUSTODIAL
ACCOUNT LETTER AGREEMENT
_________
__, 200__
To:
(the
“Depository”)
As
Servicer under the Mortgage Loan Sale and Servicing Agreement, dated as of
June 1, 2007, we hereby authorize and request you to establish an account,
as a Custodial Account, to be designated as “US Bank, N.A., in trust for ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Mortgage Capital Holdings LLC as Purchaser of Mortgage Loans and
various Mortgagors.” All deposits in the account shall be subject to
withdrawal therefrom by order signed by the Servicer. You may refuse
any deposit which would result in violation of the requirement that the account
be fully insured as described below. This letter is submitted to you
in duplicate. Please execute and return one original to
us.
|
|
US
BANK, N.A.
|
|
|
|
By: _________________________ |
|
|
Name:
|
|
|
Title:
|
EXH.
5-1
The
undersigned, as Depository, hereby certifies that the above-described account
has been established under Account Number ____________________ at the office
of
the Depository indicated above, and agrees to honor withdrawals on such account
as provided above. The account will be insured by the Federal Deposit
Insurance Corporation through the Bank Insurance Fund (“BIF”) or the
Savings Association Insurance Fund (“SAIF”).
[___________________________],
as
Depository
|
|
|
By: _________________________________________ |
|
|
Name:
|
|
|
Title:
|
|
|
Date:
|
EXH.
5.2
EXHIBIT
6
ESCROW
ACCOUNT CERTIFICATION
_________
__, 200__
US
Bank,
N.A. hereby certifies that it has established the account described below as
an
Escrow Account pursuant to Subsection 11.06 of the Mortgage Loan
Sale and Servicing Agreement, dated as of June 1, 2007 Fixed and Adjustable
Rate Mortgage Loans.
Title of
Account: “US Bank, N.A., in trust for ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Mortgage Capital Holdings LLC as Purchaser of Mortgage Loans and
various Mortgagors.”
Account
Number: __________________________
Address
of office or
branch
of
[_____________________]
at
which
the Escrow
|
Account
is maintained:
|
______________________
|
|
|
______________________
|
|
|
______________________
|
|
|
US
BANK, N.A.
|
|
|
|
By: ___________________________ |
|
|
Name:
|
|
|
Title:
|
EXH.
6-1
EXHIBIT
7
ESCROW
ACCOUNT LETTER AGREEMENT
_________
__, 200__
To:
(the
“Depository”)
As
Servicer under the Mortgage Loan Sale and Servicing Agreement, dated as of
June 1, 2007, we hereby authorize and request you to establish an account,
as an Escrow Account, to be designated as “US Bank, N.A., in trust for ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Mortgage Capital Holdings LLC as Purchaser of Mortgage Loans and
various Mortgagors.” All deposits in the account shall be subject to
withdrawal therefrom by order signed by the Servicer. You may refuse
any deposit which would result in violation of the requirement that the account
be fully insured as described below. This letter is submitted to you
in duplicate. Please execute and return one original to
us.
| US BANK, N.A. | |
| By: _______________________ | |
| Name: | |
| Title: |
EXH.
7-1
The
undersigned, as Depository, hereby certifies that the above-described account
has been established under Account Number ____________________ at the office
of
the Depository indicated above, and agrees to honor withdrawals on such account
as provided above. The account will be insured by the Federal Deposit
Insurance Corporation through the Bank Insurance Fund (“BIF”) or the
Savings Association Insurance Fund (“SAIF”).
[____________________],
as
Depository
| By: _____________________________ | |
| Name: | |
| Title: | |
| Date: | |
EXH.
7-2
EXHIBIT
8
UNDERWRITING
GUIDELINES
[SELLER
TO PROVIDE]
EXH.
8-1
EXHIBIT
9
FORM
OF
MONTHLY REMITTANCE ADVICE FIELDS
Mortgage
Loan Number:
Previous
Stated Principal Balance:
Current
Stated Principal Balance:
Paid
To
Date:
Current
Mortgage Interest Rate:
Current
Monthly Payment:
Principal
Remitted:
Interest
Remitted:
Servicing
Fee:
Prepayment
Penalty Remitted:
FORM
OF
SERVICER REPORT
|
MS
Field Name
|
MS
Field Description
|
Data
Type
|
|
Servicer_ID
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇ servicer identifier
|
nvarchar(4)
|
|
As_Of_Date
|
Effective
date of the file
|
datetime
|
|
Loan_Number_Morgan_Stanley
|
Loan
identifier of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
nvarchar(30)
|
|
Loan_Number_Prior_Servicer
|
Loan
identifier of the prior servicer
|
nvarchar(30)
|
|
Loan_Number_Seller
|
Loan
identifier of the seller
|
nvarchar(30)
|
|
Loan_Number_Servicer
|
Loan
identifier of the current servicer
|
nvarchar(30)
|
|
Accrued_Interest
|
Amount
of delinquent interest
|
money
|
|
ARM_Flag
|
Indicates
if the loan is an adjustable rate mortgage (-1 = Yes / 0 =
No)
|
integer
|
|
ARM_Index
|
Index
used to determine the adjustment to the interest rate
|
nvarchar(50)
|
|
ARM_Initial_Interest_Rate_Change_Date
|
Date
of the first interest rate adjustment
|
datetime
|
|
ARM_Initial_Interest_Rate_Change_Increment
|
Number
of months until the first interest rate change date
|
integer
|
|
ARM_Initial_Max_Interest_Rate_Decrease
|
Maximum
initial interest rate decrease from the original interest
rate
|
integer
|
|
ARM_Initial_Max_Interest_Rate_Increase
|
Maximum
initial interest rate increase from the original interest
rate
|
integer
|
|
ARM_Initial_Payment_Change_Date
|
Date
of the first payment adjustment
|
datetime
|
|
ARM_Initial_Payment_Change_Increment
|
Number
of months from the first payment until the first payment change
date
|
integer
|
|
ARM_Life_Max_Interest_Rate
|
Lifetime
maximum interest rate or orig rate plus life cap
|
float
|
|
ARM_Life_Max_Interest_Rate_Decrease
|
Lifetime
maximum interest rate decrease from the original interest
rate
|
float
|
|
ARM_Life_Max_Interest_Rate_Increase
|
Lifetime
maximum interest rate increase from the original interest
rate. (maximum interest rate - original interest
rate)
|
float
|
|
ARM_Life_Min_Interest_Rate
|
Lifetime
minimum interest rate. In most cases the min rate or
margin
|
float
|
|
ARM_Lookback_Days
|
Number
of days before the next interest change date on which the index value
is
determined
|
nvarchar(30)
|
|
ARM_Margin
|
Margin
(increase) over the index percentage
|
float
|
|
ARM_Negative_Amortization_First_Recast_Date
|
Date
of the first adjustment to minimum monthly payment to fully amortize
the
loan over the remaining term
|
datetime
|
|
ARM_Negative_Amortization_Flag
|
Indicates
if the loan is negative amortizing (-1 = Yes / 0 = No)
|
integer
|
|
ARM_Negative_Amortization_Limit
|
Maximum
percentage increase to the original principal balance allowable through
negative amortization
|
float
|
|
ARM_Negative_Amortization_Next_Recast_Date
|
Date
of the next adjustment to minimum monthly payment to fully amortize
the
loan over the remaining term
|
datetime
|
|
ARM_Negative_Amortization_Payment_Cap
|
Percentage
that the minimum monthly payment can change at each
adjustment
|
float
|
|
ARM_Negative_Amortization_Recast_Frequency
|
Number
of months between adjustments to minimum monthly payment to fully
amortize
the loan over the remaining term
|
integer
|
|
ARM_Next_Interest_Rate_Change_Date
|
Date
of the next interest rate adjustment
|
datetime
|
|
ARM_Next_Payment_Change_Date
|
Date
of the next payment adjustment
|
datetime
|
EXH.
9-1
|
MS
Field Name
|
MS
Field Description
|
Data
Type
|
|
ARM_Periodic_Interest_Rate_Change_Frequency
|
Number
of months between interest rate adjustments (after the first
adjustment)
|
integer
|
|
ARM_Periodic_Max_Interest_Rate_Decrease
|
Maximum
interest rate decrease from one adjustment to the next
|
float
|
|
ARM_Periodic_Max_Interest_Rate_Increase
|
Maximum
subsequent interest rate increase from one adjustment to the
next
|
float
|
|
ARM_Periodic_Max_Payment_Increase
|
Maximum
subsequent payment increase from one adjustment to the
next
|
float
|
|
ARM_Periodic_Payment_Change_Frequency
|
Number
of months between payment adjustments (after the first
adjustment)
|
integer
|
|
ARM_Rounding_Code
|
Direction
of rounding used
|
nvarchar(10)
|
|
ARM_Rounding_Factor
|
Factor
of rounding used
|
float
|
|
Balloon_Current_Flag
|
Indicates
if the loan is a balloon mortgage (-1 = Yes / 0 = No)
|
integer
|
|
BK_Affirmation_Date
|
Date
of bankruptcy affirmation date
|
datetime
|
|
BK_Autostay_Lift_Flag
|
Indicates
if the automatic stay on a bankruptcy loan has been lifted (-1 =
Yes / 0 =
No)
|
integer
|
|
BK_Case_Number
|
Bankruptcy
case number
|
nvarchar(20)
|
|
BK_Chapter
|
Bankruptcy
chapter
|
integer
|
|
BK_Confirmation_Hearing_Date
|
Date
of the bankruptcy confirmation hearing
|
datetime
|
|
BK_Consent_Order_Granted_Date
|
Date
bankruptcy consent order granted
|
datetime
|
|
BK_Cram_Down_Flag
|
Indicates
if a cramdown has occurred on a bankruptcy loan
(-1
= Yes / 0 = No)
|
integer
|
|
BK_Discharge_Date
|
Date
bankruptcy is discharged
|
datetime
|
|
BK_Dismissal_Date
|
Date
bankruptcy is dismissed
|
datetime
|
|
BK_End_Date
|
Date
bankruptcy ends
|
datetime
|
|
BK_Filing_Date
|
Date
bankruptcy is filed
|
datetime
|
|
BK_Flag
|
Indicates
if a loan is currently in bankruptcy (-1 = Yes / 0 = No)
|
integer
|
|
BK_Motion_For_Relief_Filed_Date
|
Date
motion for relief of stay is filed
|
datetime
|
|
BK_Motion_For_Relief_Granted_Date
|
Date
motion for relief of stay is granted
|
datetime
|
|
BK_Motion_For_Relief_Hearing_Date
|
Date
of the hearing for the motion for relief of stay
|
datetime
|
|
BK_Motion_For_Relief_Referred_Date
|
Date
motion for relief of stay is referred
|
datetime
|
|
BK_Motion_For_Relief_Release_Date
|
Date
motion for relief of stay is released
|
datetime
|
|
BK_Number_Of_Filings
|
Number
of Bankruptcy Filings
|
integer
|
|
BK_Paid_By
|
Indicates
whether the borrower of trustee paid for the bankruptcy
|
nvarchar(30)
|
|
BK_Payment_Required_Under_Plan_Flag
|
Indicates
if a bankruptcy plan requires payment (-1 = Yes / 0 = No)
|
integer
|
|
BK_Plan_Confirmed_Date
|
Date
bankruptcy plan is confirmed
|
datetime
|
|
BK_Plan_Confirmed_Flag
|
Indicates
if a bankruptcy plan has been confirmed (-1 = Yes / 0 =
No)
|
integer
|
|
BK_Post_Petition_Payment_Amount
|
Amount
of the post petition payment amount
|
money
|
|
BK_Post_Petition_Payment_First_Due_Date
|
First
due date following the petition of bankruptcy
|
datetime
|
|
BK_Post_Petition_Payment_Next_Due_Date
|
Next
post-petition due date
|
datetime
|
|
BK_Pre_Petition_Payment_Due_Date
|
Due
date prior to the bankruptcy petition filing date
|
datetime
|
|
BK_Proof_Of_Claim_Filed_Date
|
Date
proof of claim filed
|
datetime
|
|
BK_Sub_Status
|
Detailed
status of the bankruptcy
|
nvarchar(30)
|
|
BK_Sub_Status_Date
|
Date
of the detailed status of the bankruptcy
|
datetime
|
|
Boarded_At_Servicer_Date
|
Date
loan boarded at the current servicer
|
datetime
|
|
Borrower_Co_First_Name
|
First
Name of the co-borrower
|
nvarchar(25)
|
|
Borrower_Co_Last_Name
|
Last
Name of the co-borrower
|
nvarchar(50)
|
|
Borrower_Current_Credit_Score
|
Latest
credit score
|
integer
|
|
Borrower_Current_Credit_Score_Date
|
Date
of the latest credit score
|
datetime
|
|
Borrower_Debt_To_Income_Back
|
Total
monthly debt payments (including car payments, credit cards, student
loans, etc.) divided by total gross income
|
float
|
|
Borrower_First_Name
|
First
name of the borrower
|
nvarchar(25)
|
|
Borrower_Last_Name
|
Last
name of the borrower
|
nvarchar(50)
|
|
Borrower_Original_Credit_Score
|
Original
credit score of the borrower
|
integer
|
|
Borrower_Original_Credit_Score_Date
|
Date
of the original credit score of the borrower
|
datetime
|
|
Borrower_Self_Employment_Flag
|
Indicates
if the borrower is self-employed (-1 = Yes / 0 = No)
|
integer
|
|
Borrower_Social_Security_Number
|
Social
Security Number of the borrower
|
nvarchar(11)
|
|
CashFlow_From_Borrower_Current_Month
|
Amount
received from the borrower in the most recent month
|
money
|
|
Current_Corporate_Advance_Balance
|
Current
corporate advance balance
|
money
|
|
Delinquency_Days_Delinquent_MBA
|
Number
of days delinquent using the MBA delinquency method
|
integer
|
EXH.
9-2
|
MS
Field Name
|
MS
Field Description
|
Data
Type
|
|
Delinquency_Days_Delinquent_OTS
|
Number
of days delinquent using the OTS delinquency method
|
integer
|
|
Delinquency_Times_30_12_Months
|
Number
of times loan between 30 and 59 days delinquent (OTS) in the last
12 months
|
integer
|
|
Delinquency_Times_60_12_Months
|
Number
of times loan between 60 and 89 days delinquent (OTS) in the last
12 months
|
integer
|
|
Delinquency_Times_90_12_Months
|
Number
of times loan between 60+ days delinquent (OTS) in the last
12 months
|
integer
|
|
Documentation_Type
|
Documentation
level
|
nvarchar(30)
|
|
Escrow_Current_Balance
|
Current
escrow balance (negative amount = advance balance)
|
money
|
|
FB_Stip_End_Date
|
Date
the forbearance/stip plan ends
|
datetime
|
|
FB_Stip_First_Payment_Due_Date
|
Date
of the first payment due for a forbearance/stipulation
plan
|
datetime
|
|
FB_Stip_Flag
|
Indicates
if a loan is currently on a forbearance/stipulation plan
(-1
= Yes / 0 = No)
|
integer
|
|
FB_Stip_Last_Payment_Due_Date
|
Date
of the last payment due for a forbearance/stipulation plan
|
datetime
|
|
FB_Stip_Next_Payment_Due_Date
|
Date
of the next payment due for a forbearance/stipulation plan
|
datetime
|
|
FB_Stip_Payment_Amount
|
Payment
amount for a forbearance/stipulation plan
|
money
|
|
FB_Stip_Payment_Frequency
|
Payment
frequency of a forbearance/stipulation plan
|
integer
|
|
FB_Stip_Plan_Agreement_Type
|
Type
of forbearance/stipulation plan
|
nvarchar(50)
|
|
FB_Stip_Plan_Demand_Expires_Date
|
Date
a forbearance/stipulation demand expires
|
datetime
|
|
FB_Stip_Plan_Demand_Sent_Date
|
Date
a forbearance/stipulation demand is sent
|
datetime
|
|
FB_Stip_Start_Date
|
Date
the forbearance/stip plan starts
|
datetime
|
|
FB_Stip_Total_Plan_Amount
|
Total
amount of a forbearance/stipulation plan
|
money
|
|
FC_Contested_Flag
|
Indicates
if a foreclosure has been contested by the borrower
(-1
= Yes / 0 = No)
|
integer
|
|
FC_Current_Activity
|
Current
activity of the foreclosure
|
nvarchar(70)
|
|
FC_Delay_Code
|
Foreclosure
delay code
|
nvarchar(15)
|
|
FC_End_Date
|
Date
the foreclosure completed
|
datetime
|
|
FC_Estimated_Sale_Date
|
Estimated
date of the foreclosure sale
|
datetime
|
|
FC_First_Legal_Date
|
First
legal date of the foreclosure
|
datetime
|
|
FC_Flag
|
Indicates
if the loan is currently in foreclosure (-1 = Yes / 0 =
No)
|
integer
|
|
FC_Sale_Date
|
Date
of the foreclosure sale
|
datetime
|
|
FC_Start_Date
|
Date
foreclosure is filed
|
datetime
|
|
FC_Sub_Status
|
Detailed
status of the foreclosure
|
nvarchar(50)
|
|
FC_Sub_Status_Date
|
Date
of the detailed status of the foreclosure
|
datetime
|
|
Hazard_Insurance_Claim_Flag
|
Indicates
if a loan has a hazard insurance claim pending
(-1
= Yes / 0 = No)
|
integer
|
|
Interest_Collection_Type
|
Identifies
interest collection method
|
nvarchar(15)
|
|
Interest_Only_Flag
|
Indicates
if the loan has a specified period when then borrower pays only the
interest portion due (-1 = Yes / 0 = No)
|
integer
|
|
Interest_Only_Term
|
Number
of months where borrower pays only the interest portion
due
|
integer
|
|
Interest_Paid_Thru_Date
|
Date
the through which the interest is paid
|
datetime
|
|
Interest_Rate_Current
|
Current
interest rate
|
float
|
|
Interest_Rate_Original
|
Original
interest rate
|
float
|
|
Investor_Code
|
Investor
code
|
nvarchar(10)
|
|
Lien_Position
|
Lien
position of the loan
|
integer
|
|
Loan_Purpose
|
Purpose
of the loan
|
nvarchar(50)
|
|
Loan_Status_Servicer
|
Status
of the loan per ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ code
|
nvarchar(50)
|
|
Loan_to_Value_Combined_Current
|
Current
combined loan-to-value ratio (includes senior liens)
|
float
|
|
Loan_to_Value_Combined_Original
|
Original
combined loan-to-value ratio (includes senior liens)
|
float
|
|
Loan_to_Value_Current
|
Current
loan-to-value ratio
|
float
|
|
Loan_to_Value_Original
|
Original
loan-to-value ratio
|
float
|
|
Loss_Mitigation_Flag
|
Indicates
if a loan is in loss mitigation (-1 = Yes / 0 = No)
|
integer
|
|
Loss_Mitigation_Sub_Status
|
Detailed
status of the loss mitigation
|
nvarchar(50)
|
|
Loss_Mitigation_Sub_Status_Date
|
Date
of the detailed status of the loss mitigation
|
datetime
|
|
Maturity_Date_Current
|
Current
maturity date
|
datetime
|
|
MERS_MIN
|
Mortgage
Electronic Registration System Mortgage Identification
Number
|
nvarchar(20)
|
|
MI_Certificate_Number
|
Mortgage
insurance certificate number
|
nvarchar(25)
|
|
MI_Claim_Filed_Date
|
Date
mortgage insurance claim filed
|
datetime
|
EXH.
9-3
|
MS
Field Name
|
MS
Field Description
|
Data
Type
|
|
MI_Company
|
Mortgage
insurance company
|
nvarchar(50)
|
|
MI_Coverage_Percentage
|
Mortgage
insurance coverage percentage
|
float
|
|
MI_Flag
|
Indicates
if a loan has mortgage insurance (-1 = Yes / 0 = No)
|
integer
|
|
MI_Lender_Paid_Fee
|
Amount
of lender paid mortgage insurance fee
|
money
|
|
MI_Proceeds_Received_Amount
|
Amount
of proceeds received from the mortgage insurance claim
|
money
|
|
MI_Proceeds_Received_Date
|
Date
mortgage insuramce proceeds received
|
datetime
|
|
Modification_Flag
|
Indicates
if the loan has been modified (-1 = Yes / 0 =
No)
|
integer
|
|
Modification_Initial_Principal_Balance
|
Initial
principal balance following the latest modification
|
money
|
|
Modification_Last_Date
|
Date
of the latest modification
|
datetime
|
|
Modification_New_Interest_Rate
|
New
interest rate following the latest modification
|
float
|
|
Modification_New_Maturity_Date
|
New
maturity date following the latest modification
|
datetime
|
|
Modification_New_PI_Payment_Amount
|
New
principal and interest payment amount following the latest
modification
|
money
|
|
Modification_Payment_First_Due_Date
|
Date
of the first payment following the latest modification of the
loan
|
datetime
|
|
Number_Of_Units
|
Number
of units
|
integer
|
|
Occupancy_Type_Current
|
Current
occupancy type
|
nvarchar(50)
|
|
Occupancy_Type_Original
|
Original
occupancy type
|
nvarchar(50)
|
|
Origination_Date
|
Origination
date of the loan
|
datetime
|
|
Originator
|
Originator
of the loan
|
nvarchar(30)
|
|
Payment_Actual_Received
|
Actual
payment amount received in the most recent month
|
money
|
|
Payment_First_Due_Date
|
First
payment due date of the loan
|
datetime
|
|
Payment_Frequency
|
Number
of times a payment is due within a year
|
integer
|
|
Payment_History_Counter
|
Alltel
Counter. Leftmost spot represents January right represents
December.
|
nvarchar(12)
|
|
Payment_Last_Received_Date
|
Date
the last payment was received
|
datetime
|
|
Payment_Next_Due_Date
|
Next
payment due date of the loan
|
datetime
|
|
Payment_PI_Current
|
Current
principal and interest payment
|
money
|
|
Payment_PI_Original
|
Original
principal and interest payment
|
money
|
|
Payment_TI_Current
|
Current
taxes and insurance payment
|
money
|
|
Payment_Total_Current
|
Current
total payment (PITI)
|
money
|
|
PI_Arrearage
|
Principal
and interest in arrears
|
money
|
|
Pool_Number
|
Identifies
the pool to which the loan belongs
|
nvarchar(15)
|
|
Prepayment_Penalty_Calculation
|
Prepayment
penalty calculation
|
nvarchar(30)
|
|
Prepayment_Penalty_Collected_Amount
|
Amount
of prepayment penalty collected
|
money
|
|
Prepayment_Penalty_Current_Flag
|
Indicates
if a loan has an active prepayment penalty
(-1
= Yes / 0 = No)
|
integer
|
|
Prepayment_Penalty_Original_Flag
|
Indicates
if a loan had a prepayment penalty at origination
(-1
= Yes / 0 = No)
|
integer
|
|
Prepayment_Penalty_Original_Term
|
Original
term of the prepayment penalty in months
|
integer
|
|
Prepayment_Penalty_Remaining_Term
|
Remaining
term of the prepayment penalty in months
|
integer
|
|
Prepayment_Penalty_Waived_Amount
|
Amount
of prepayment penalty collected
|
money
|
|
Principal_Balance_Current_Actual
|
Actual
current principal balance
|
money
|
|
Principal_Balance_Current_Scheduled
|
Scheduled
current principal balance
|
money
|
|
Principal_Balance_Junior
|
Principal
balance of all loans junior to this lien position
|
money
|
|
Principal_Balance_Original
|
Original
principal balance
|
money
|
|
Principal_Balance_Senior
|
Principal
balance of all loans senior to this lien position
|
money
|
|
Property_Address
|
Property
address
|
nvarchar(50)
|
|
Property_City
|
Property
city
|
nvarchar(70)
|
|
Property_Condition_Code
|
Property
condition code
|
nvarchar(15)
|
|
Property_State
|
Property
state
|
nvarchar(4)
|
|
Property_Type
|
Property
type
|
nvarchar(15)
|
|
Property_Zip
|
Property
zip code
|
nvarchar(10)
|
|
Purchase_Price
|
Purchase
price of the property
|
money
|
|
REO_Anticipated_Sale_Date
|
Date
of the anticipated REO sale
|
datetime
|
|
REO_Anticipated_Sale_Price
|
Anticipated
sale price of the REO asset
|
money
|
|
REO_As_Is_Value
|
As
is value of the REO asset
|
money
|
|
REO_Closing_Date
|
Actual
closing date of the REO asset
|
datetime
|
|
REO_Contract_Price
|
Contract
price of the REO asset
|
money
|
|
REO_Current_List_Date
|
Date
of the most recent listing of the REO asset
|
datetime
|
EXH.
9-4
|
MS
Field Name
|
MS
Field Description
|
Data
Type
|
|
REO_Current_List_Price
|
Current
listing price of the REO asset
|
money
|
|
REO_Estimated_Closing_Date
|
Estimated
closing date of the REO asset
|
datetime
|
|
REO_Estimated_Eviction_Date
|
Estimated
eviction completion date of the REO asset
|
datetime
|
|
REO_Estimated_Net_Proceeds
|
Estimated
net proceeds of the REO asset
|
money
|
|
REO_Eviction_End_Date
|
Actual
eviction completion date of the REO asset
|
datetime
|
|
REO_Eviction_Flag
|
Indicates
if an REO asset is currently in eviction (-1 = Yes / 0 =
No)
|
integer
|
|
REO_Eviction_Start_Date
|
Beginning
date of the eviction of the REO asset
|
datetime
|
|
REO_Flag
|
Indicates
if a loan is an REO asset (-1 = Yes / 0 = No)
|
integer
|
|
REO_Net_Proceeds
|
Net
proceeds from the sale of the REO asset
|
money
|
|
REO_Offer_Amount
|
Offer
amount for the REO asset
|
money
|
|
REO_Offer_Date
|
Date
the offer amount was made for the REO asset
|
datetime
|
|
REO_Offer_Status
|
Status
of the offer for the REO asset
|
nvarchar(30)
|
|
REO_Original_List_Date
|
Date
of the original listing of the REO asset
|
datetime
|
|
REO_Original_List_Price
|
Original
listing price of the REO asset
|
money
|
|
REO_Repaired_Value
|
Repaired
value of the REO asset
|
money
|
|
REO_Sale_Date
|
Sale
date of the REO asset
|
datetime
|
|
REO_Sales_Price
|
Sales
price of the REO asset
|
money
|
|
REO_Start_Date
|
Date
the loan became an REO asset
|
datetime
|
|
REO_Sub_Status
|
Detailed
status of the REO asset
|
nvarchar(50)
|
|
REO_Sub_Status_Date
|
Date
of the detailed status of the REO asset
|
datetime
|
|
Resolution_Accrued_Interest
|
Accrued
interest at resolution
|
money
|
|
Resolution_Date
|
Date
of the resolution
|
datetime
|
|
Resolution_Escrow_Advances
|
Escrow
advances at resolution
|
money
|
|
Resolution_Eviction_Costs
|
Eviction
costs at resolution
|
money
|
|
Resolution_Hazard_Insurance_Proceeds
|
Hazard
insurance proceeds
|
money
|
|
Resolution_Legal_Fees_Balance
|
Legal
fees balance at resolution
|
money
|
|
Resolution_Miscellaneous_Costs
|
Miscellaneous
costs at resolution
|
money
|
|
Resolution_Miscellaneous_Proceeds
|
Miscellaneous
proceeds from resolution
|
money
|
|
Resolution_Principal_Balance_at_Resolution
|
Principal
balance at resolution
|
money
|
|
Resolution_Property_Preservation_Costs
|
Property
preservation costs at resolution
|
money
|
|
Resolution_Property_Valuations_Costs
|
Property
valuation costs at resolution
|
money
|
|
Resolution_Realized_Loss_Gain
|
Realized
gain/(loss)
|
money
|
|
Resolution_Sales_Proceeds
|
Amount
of sales proceeds
|
money
|
|
Resolution_Type
|
Resolution
Type
|
nvarchar(50)
|
|
Seasoning
|
Number
of months since the first payment due date of the loan up to
cutoff
|
integer
|
|
Section_32_Flag
|
Indicates
if a loan is a Section 32 mortgage (-1 = Yes / 0 =
No)
|
integer
|
|
Seller_Name
|
Seller
name
|
nvarchar(30)
|
|
Service_Fee_Rate
|
Rate
charged by the servicer to service the loan
|
float
|
|
Servicer_Transfer_Date
|
Date
of service transfer
|
datetime
|
|
Silent_Second_Flag
|
Indicates
if the loan has a second mortgage originated at the same time as
the first
mortgage to avoid PMI (-1 = Yes / 0 = No)
|
integer
|
|
SP_Appraisal_Type
|
Appraisal
type per S&P guidelines
|
nvarchar(4)
|
|
SP_Documentation_Type
|
Documentation
type per S&P guidelines
|
nvarchar(4)
|
|
SP_Down_Payment_Verification_Flag
|
Indicates
if the verification of the down payment was used to secure the loan
for
S&P (-1 = Yes / 0 = No)
|
integer
|
|
Suspense_Current_Balance
|
Current
suspense balance
|
money
|
|
Taxes_Delinquent
|
Amount
of delinquent taxes
|
money
|
|
Taxes_Search_Date
|
Date
of tax search
|
datetime
|
|
Term_Original
|
Original
term of the loan in months
|
integer
|
|
Term_Original_Amortization
|
Original
amortization term of the loan in months
|
integer
|
|
Term_Remaining
|
Number
of months remaining in the loan from cutoff
|
integer
|
|
Valuation_Acquisition_Reconciled_Date
|
Date
of acquisition reconciled valuation
|
datetime
|
|
Valuation_Acquisition_Reconciled_Value
|
Value
of acquisition reconciled valuation
|
money
|
|
Valuation_Appraisal_Original_Date
|
Date
of the original appraisal
|
datetime
|
|
Valuation_Appraisal_Original_Value
|
Value
of the original appraisal
|
money
|
|
Valuation_Current_Reconciled_Value
|
Value
of latest reconciled valuation
|
money
|
|
Valuation_Current_Reconciled_Value_Date
|
Date
of latest reconciled valuation
|
datetime
|
EXH.
9-5
EXHIBIT
10
FORM
OF
SELLER’S OFFICER’S CERTIFICATE
I,
____________________, hereby certify that I am the duly elected [Vice] President
of ________________ US Bank, N.A., a [state] [federally] chartered institution
organized under the laws of the [state of ____________] [United States] (the
“Company”) and further as follows:
1. Attached
hereto as Exhibit 1 is a true, correct and complete copy of the
charter of the Company which is in full force and effect on the date hereof
and
which has been in effect without amendment, waiver, rescission or modification
since ___________.
2. Attached
hereto as Exhibit 2 is a true, correct and complete copy of the
bylaws of the Company which are in effect on the date hereof and which have
been
in effect without amendment, waiver, rescission or modification since
___________.
3. Attached
hereto as Exhibit 3 is an original certificate of good standing of
the Company issued within ten days of the date hereof, and no event has
occurred since the date thereof which would impair such standing.
4. Attached
hereto as Exhibit 4 is a true, correct and complete copy of the
resolutions duly adopted by the board of directors of the Company on [________],
2007 (the “Resolutions”) with respect to the authorization and approval
of the sale and servicing of the Mortgage Loans, and such resolutions are in
effect on the date hereof and have been in effect without amendment, waiver,
rescission or modification since ____________.
5. Either
(i) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Company of or compliance by the Company with the Sale and
Servicing Agreement, the Custodial Agreement, the sale of the mortgage loans
or
the consummation of the transactions contemplated by the agreements; or
(ii) any required consent, approval, authorization or order has been
obtained by the Company.
6. Neither
the consummation of the transactions contemplated by, nor the fulfillment of
the
terms of the Sale and Servicing Agreement and the Custodial Agreement conflicts
or will conflict with or results or will result in a breach of or constitutes
or
will constitute a default under the charter or by-laws of the Company, the
terms
of any indenture or other agreement or instrument to which the Company is a
party or by which it is bound or to which it is subject, or any statute or
order, rule, regulations, writ, injunction or decree of any court, governmental
authority or regulatory body to which the Company is subject or by which it
is
bound.
7. To
the best of my knowledge, there is no action, suit, proceeding or investigation
pending or threatened against the Company which, in my judgment, either
EXH.
10-1
in
any one instance or in the aggregate, may result
in any material adverse change in the business, operations, financial condition,
properties or assets of the Company or in any material impairment of the right
or ability of the Company to carry on its business substantially as now
conducted or in any material liability on the part of the Company or which
would
draw into question the validity of the Sale and Servicing Agreement and the
Custodial Agreement, or the mortgage loans or of any action taken or to be
taken
in connection with the transactions contemplated hereby, or which would be
likely to impair materially the ability of the Company to perform under the
terms of the Sale and Servicing Agreement and the Custodial
Agreement.
8. Each
person listed on Exhibit 5 attached hereto who, as an officer or
representative of the Company, signed (a) the Sale and Servicing Agreement,
(b) the Custodial Agreement and (c) any other document delivered or on
the date hereof in connection with any purchase described in the agreements
set
forth above was, at the respective times of such signing and delivery, and
is
now, a duly elected or appointed, qualified and acting officer or representative
of the Company, who holds the office set forth opposite his or her name on
Exhibit 5, and the signatures of such persons appearing on such
documents are their genuine signatures.
9. The
Company is duly authorized to engage in the transactions described and
contemplated in the Sale and Servicing Agreement and the Custodial
Agreement.
EXH.
10-2
IN
WITNESS WHEREOF, I have hereunto signed my name and affixed the seal of the
Company.
Dated:
________________________________
By:
________________________________
Name: ________________________________
[Seal] Title: [Vice]
President
I,
________________________, an [Assistant] Secretary of ______________[COMPANY],
hereby certify that ____________ is the duly elected, qualified and acting
[Vice] President of the Company and that the signature appearing above is [her]
[his] genuine signature.
IN
WITNESS WHEREOF, I have hereunto signed my name.
Dated:
________________________________
By:
________________________________
Name: ________________________________
Title:
_________________________________
[Assistant] Secretary
EXH.
10-3
EXHIBIT
5
to
Company’s
Officer’s Certificate
|
NAME
|
TITLE
|
SIGNATURE
|
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
EXH.
10-4
EXHIBIT
11
FORM
OF
OPINION OF COUNSEL TO SELLER
(date)
▇▇▇▇▇▇
▇▇▇▇▇▇▇ Mortgage Capital Holdings LLC
16▇▇
▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear
Sirs:
You
have
requested [our] [my] opinion, as [Assistant] General Counsel to
___________________ (the “Company”), with respect to certain matters in
connection with the sale by the Company of the Mortgage Loans pursuant to that
certain Mortgage Loan Sale and Servicing Agreement, by and between the Company
and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Holdings LLC (the “Purchaser”),
dated as of June 1, 2007 (the “Sale and Servicing Agreement”) which sale
is in the form of whole loans. Capitalized terms not otherwise
defined herein have the meanings set forth in the Sale and Servicing
Agreement.
[We]
[I]
have examined the following documents:
1. the
Sale and Servicing Agreement;
2. the
form of Assignment of Mortgage;
3. the
form of endorsement of the Mortgage Notes; and
4. such
other documents, records and papers as we have deemed necessary and relevant
as
a basis for this opinion.
To
the
extent [we] [I] have deemed necessary and proper, [we] [I] have relied upon
the
representations and warranties of the Company contained in the Sale and
Servicing Agreement. [We] [I] have assumed the authenticity of all
documents submitted to [us] [me] as originals, the genuineness of all
signatures, the legal capacity of natural persons and the conformity to the
originals of all documents.
Based
upon the foregoing, it is [our] [my] opinion that:
1. The
Company is a [type of entity] duly organized, validly existing and in good
standing under the laws of the [United States] and is qualified to transact
business in, and is in good standing under, the laws of [the state of
incorporation/formation].
EXH.
11-1
2. The
Company has the power to engage in the transactions contemplated by the
Agreements and all requisite power, authority and legal right to execute and
deliver the Agreements and to perform and observe the terms and conditions
of
the Agreements.
3. Each
of the Agreements has been duly authorized, executed and delivered by the
Company, and is a legal, valid and binding agreement enforceable in accordance
with its respective terms against the Company, subject to bankruptcy laws and
other similar laws of general application affecting rights of creditors and
subject to the application of the rules of equity, including those respecting
the availability of specific performance, none of which will materially
interfere with the realization of the benefits provided thereunder or with
the
Purchaser’s ownership of the Mortgage Loans.
4. The
Company has been duly authorized to allow any of its officers to execute any
and
all documents by original signature in order to complete the transactions
contemplated by the Agreements.
5. The
Company has been duly authorized to allow any of its officers to execute by
original [or facsimile] signature the endorsements to the Mortgage Notes and
the
Assignments of Mortgages, and the original [or facsimile] signature of the
officer at the Company executing the endorsements to the Mortgage Notes and
the
Assignments of Mortgages represents the legal and valid signature of said
officer of the Company.
6. Either
(i) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Company of or compliance by the Company with the Agreements
and the sale of the Mortgage Loans by the Company or the consummation of the
transactions contemplated by the Agreements or (ii) any required consent,
approval, authorization or order has been obtained by the Company.
7. Neither
the consummation of the transactions contemplated by, nor the fulfillment of
the
terms of, the Agreements conflicts or will conflict with or results or will
result in a breach of or constitutes or will constitute a default under the
charter or by-laws of the Company, the terms of any indenture or other agreement
or instrument to which the Company is a party or by which it is bound or to
which it is subject, or violates any statute or order, rule, regulations, writ,
injunction or decree of any court, governmental authority or regulatory body
to
which the Company is subject or by which it is bound.
8. There
is no action, suit, proceeding or investigation pending or, to the best of
[our]
[my] knowledge, threatened against the Company which, in [our] [my] judgment,
either in any one instance or in the aggregate, may result in any material
adverse change in the business, operations, financial condition, properties
or
assets of the Company or in any material impairment of the right or ability
of
the Company to carry on its business substantially as now conducted or in any
material liability on the part of the Company or which would draw into question
the validity of the Agreements or the Mortgage Loans or of any action taken
or
to be taken in connection with the transactions contemplated thereby, or which
would be likely to impair materially the ability of the Company to perform
under
the terms of the Agreements.
EXH.
11-2
9. The
sale of each Mortgage Note and Mortgage as and in the manner contemplated by
the
Agreements is sufficient to fully transfer to the Purchaser all right, title
and
interest of the Company thereto as noteholder and mortgagee.
10. The
Mortgages have been duly assigned and the Mortgage Notes have been duly endorsed
as provided in the Custodial Agreement. The Assignments of Mortgage
are in recordable form, except for the insertion of the name of the assignee,
and upon the name of the assignee being inserted, are acceptable for recording
under the laws of the state where each related Mortgaged Property is
located. The endorsement of the Mortgage Notes, the delivery to the
Purchaser, or its designee, of the Assignments of Mortgage, and the delivery
of
the original endorsed Mortgage Notes to the Purchaser, or its designee, are
sufficient to permit the Purchaser to avail itself of all protection available
under applicable law against the claims of any present or future creditors
of
the Company, and are sufficient to prevent any other sale, transfer, assignment,
pledge or hypothecation of the Mortgages and the Mortgage Notes by the Company
from being enforceable.
This
opinion is given to you for your sole benefit, and no other person or entity
is
entitled to rely hereon except that the purchaser or purchasers to which you
initially and directly resell the Mortgage Loans may rely on this opinion as
if
it were addressed to them as of the date of this opinion.
Very
truly yours,
__________________________
[Name]
__________________________
[Assistant]
General Counsel
EXH.
11-3
EXHIBIT
12
FORM
OF
SECURITY RELEASE CERTIFICATION
___________________,
_____
________________________
________________________
________________________
Attention: ___________________________
___________________________
|
|
Re:
|
Notice
of Sale and Release of
Collateral
|
Dear
Sirs:
This
letter serves as notice that US Bank, N.A., a corporation organized pursuant
to
the laws of the state of [___________] (the “Company”) has committed to
sell to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Holdings LLC under a Mortgage Loan
Sale and Servicing Agreement, dated as of June 1, 2007, certain mortgage
loans originated by the Company. The Company warrants that the
mortgage loans to be sold to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Holdings LLC
are in addition to and beyond any collateral required to secure advances made
by
you to the Company.
The
Company acknowledges that the mortgage loans to be sold to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Mortgage Capital Holdings LLC shall not be used as additional or substitute
collateral for advances made by [____________]. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Mortgage Capital Holdings LLC understands that the balance of the Company’s
mortgage loan portfolio may be used as collateral or additional collateral
for
advances made by [___________], and confirms that it has no interest
therein.
EXH.
12-1
Execution
of this letter by [___________] shall constitute a full and complete release
of
any security interest, claim, or lien which [___________] may have against
the
mortgage loans to be sold to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Holdings
LLC.
Very
truly yours,
____________________________
By:_________________________
Name:_______________________
Title: _______________________
Date:________________________
Acknowledged
and approved:
______________________
By:_______________________________
Name: ____________________________
Title:
____________________________
Date: ____________________________
EXH.
12-2
EXHIBIT
13
FORM
OF
SECURITY RELEASE CERTIFICATION
I. Release
of Security Interest
The
financial institution named below hereby relinquishes any and all right, title,
interest, lien or claim of any kind it may have in all mortgage loans described
on the attached Schedule A (the “Mortgage Loans”) to be purchased by
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Holdings LLC from the company named on the
next page pursuant to that certain Mortgage Loan Sale and Servicing
Agreement, dated as of June 1, 2007 and certifies that all notes,
mortgages, assignments and other documents in its possession relating to such
Mortgage Loans have been delivered and released to the Company or its designees,
as of the date and time of the sale of such Mortgage Loans to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Mortgage Capital Holdings LLC. Such release shall be effective
automatically without any further action by any party upon payment in one or
more installments, in immediately available funds, of $_____________, in
accordance with the wire instructions set forth below.
Name,
Address and Wire Instructions of Financial Institution
________________________________
(Name)
________________________________
(Address)
________________________________
________________________________
________________________________
By:_____________________________
EXH.
13-1
II. Certification
of Release
The
Company named below hereby certifies to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage
Capital Holdings LLC that, as of the date and time of the sale of the
above-mentioned Mortgage Loans to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Holdings
LLC the security interests in the Mortgage Loans released by the above-named
financial institution comprise all security interests relating to or affecting
any and all such Mortgage Loans. The Company warrants that, as of
such time, there are and will be no other security interests affecting any
or
all of such Mortgage Loans.
___________________________
By:___________________________
Title:________________________
Date:_________________________
EXH.
13-2
EXHIBIT
14
FORM
OF
ASSIGNMENT AND CONVEYANCE
On
this
___ day of __________, ____, US Bank, N.A. (“Seller”), as (i) the
Seller and Servicer under that certain Purchase Price and Terms Agreement,
dated
as of ___________, _____ (the “PPTA”), (ii) the Seller and Servicer
under that certain Mortgage Loan Sale and Servicing Agreement, dated as of
June 1, 2007 (the “Sale and Servicing Agreement”) and, together with
the PPTA, the “Agreements”) does hereby sell, transfer, assign, set over
and convey to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Holdings LLC
(“Purchaser”) as the Purchaser under the Agreements, without recourse,
but subject to the terms of the Agreements, all right, title and interest of,
in
and to the Mortgage Loans listed on the Mortgage Loan Schedule attached hereto
as Exhibit A (the “Mortgage Loans”), together with the
Mortgage Files and all rights and obligations arising under the documents
contained therein. Each Mortgage Loan subject to the Agreements was
underwritten in accordance with, and conforms to, the Underwriting Guidelines
attached hereto as Exhibit C. Pursuant to Section 6
of the Sale and Servicing Agreement, the Seller has delivered to the Custodian
the documents for each Mortgage Loan to be purchased as set forth in the
Custodial Agreement. The contents of each Servicing File required to
be retained by the Servicer to service the Mortgage Loans pursuant to the Sale
and Servicing Agreement and thus not delivered to the Purchaser are and shall
be
held in trust by the Servicer in its capacity as Servicer for the benefit of
the
Purchaser as the owner thereof. The Servicer’s possession of any
portion of the Servicing File is at the will of the Purchaser for the sole
purpose of facilitating servicing of the related Mortgage Loan pursuant to
the
Sale and Servicing Agreement, and such retention and possession by the Servicer
shall be in a custodial capacity only. The ownership of each Mortgage
Note, Mortgage and the contents of the Mortgage File and Servicing File is
vested in the Purchaser and the ownership of all records and documents with
respect to the related Mortgage Loan prepared by or which come into the
possession of the Seller or the Servicer shall immediately vest in the Purchaser
and shall be retained and maintained, in trust, by the Servicer at the will
of
the Purchaser in such custodial capacity only.
The
Mortgage Loan Package characteristics of the Mortgage Loans subject hereto
are
set forth on Exhibit B hereto.
In
accordance with Section 6 of the Sale and Servicing Agreement, the
Purchaser accepts the Mortgage Loans listed on Exhibit A attached
hereto. Notwithstanding the foregoing the Purchaser does not waive
any rights or remedies it may have under the Agreements.
Capitalized
terms used herein and not otherwise defined shall have the meanings set forth
in
the Sale and Servicing Agreement.
[Signature
Page Follows]
EXH.
14-1
| US BANK, N.A. | |
| By: _________________________ | |
| Name: | |
| Title: |
|
Accepted
and Agreed:
|
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇ MORTGAGE CAPITAL HOLDINGS
LLC
|
|
|
By:______________________
|
|
|
Name:
|
|
|
Title:
|
EXH.
14-2
EXHIBIT
A
TO
ASSIGNMENT AND CONVEYANCE AGREEMENT
THE
MORTGAGE LOANS
EX▇.
▇▇-▇
▇▇▇▇▇▇▇
▇
TO
ASSIGNMENT AND CONVEYANCE AGREEMENT
REPRESENTATIONS
AND WARRANTIES WITH RESPECT TO THE POOL CHARACTERISTICS OF EACH MORTGAGE LOAN
PACKAGE
Pool
Characteristics of the Mortgage Loan Package as delivered on the related Closing
Date:
No
Mortgage Loan has: (1) an outstanding principal balance less
than $_________; (2) an origination date earlier than _ months prior to the
related Cut-off Date; (3) a CLTV of greater than _____%; (4) a FICO
Score of less than ___; or (5) a debt-to-income ratio of more than
__%. Each Mortgage Loan has a Mortgage Interest Rate of at least ___%
per annum and an outstanding principal balance of less than
$_________. Each Adjustable Rate Mortgage Loan has an Index of
[_______].
EXH.
14-4
EXHIBIT
C
TO
ASSIGNMENT AND CONVEYANCE AGREEMENT
UNDERWRITING
GUIDELINES
EXH.
14-5
EXHIBIT
15
FORM
OF
ASSIGNMENT AND RECOGNITION AGREEMENT
THIS
ASSIGNMENT AND RECOGNITION AGREEMENT, dated [____________ __, 20__]
(“Agreement”), among ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Holdings LLC
(“Assignor”), [____________________] (“Assignee”) and US Bank,
N.A. (the “Company”):
For
and
in consideration of the sum of TEN DOLLARS ($10.00) and other valuable
consideration the receipt and sufficiency of which hereby are acknowledged,
and
of the mutual covenants herein contained, the parties hereto hereby agree as
follows:
Assignment
and Conveyance
1. The
Assignor hereby conveys, sells, grants, transfers and assigns to the Assignee
all of the right, title and interest of the Assignor, as purchaser, in, to
and
under (a) those certain Mortgage Loans listed on the schedule (the
“Mortgage Loan Schedule”) attached hereto as Exhibit A (the
“Mortgage Loans”) and (b) except as described below, that certain
Mortgage Loan Sale and Servicing Agreement (the “Sale and Servicing
Agreement”), dated as of June 1, 2007, between the Assignor, as
purchaser (the “Purchaser”), and the Company, as seller, solely insofar
as the Sale and Servicing Agreement relates to the Mortgage Loans.
The
Assignor specifically reserves and does not assign to the Assignee hereunder
any
and all right, title and interest in, to and under and any obligations of the
Assignor with respect to (a) Subsection 7.05 of the Sale and
Servicing Agreement or (b) any mortgage loans subject to the Sale and
Servicing Agreement which are not the Mortgage Loans set forth on the Mortgage
Loan Schedule and are not the subject of this Agreement.
Recognition
of the Company
2. From
and after the date hereof (the “Securitization Closing Date”), the
Company shall and does hereby recognize that the Assignee will transfer the
Mortgage Loans and assign its rights under the Sale and Servicing Agreement
(solely to the extent set forth herein) and this Agreement to
[__________________] (the “Trust”) created pursuant to a Pooling and
Servicing Agreement, dated as of [__________, 200_] (the “Pooling
Agreement”), among the Assignee, the Assignor, [___________________], as
trustee (including its successors in interest and any successor trustees under
the Pooling Agreement, the “Trustee”), [____________________], as
servicer (including its successors in interest and any successor servicer under
the Pooling Agreement, the “Servicer”). The Company hereby
acknowledges and agrees that from and after the date hereof (i) the Trust
will be the owner of the Mortgage Loans, (ii) the Company shall look solely
to the Trust for performance of any obligations of the Assignor insofar as
they
relate to the Mortgage Loans, (iii) the Trust (including the Trustee and
the Servicer acting on the Trust’s behalf) shall have all the rights and
remedies available to the Assignor, insofar as they relate to the Mortgage
Loans, under the Sale and Servicing Agreement, including, without limitation,
the enforcement of the document delivery requirements set forth in
Section 6 of the Sale and Servicing Agreement, and shall be entitled to
enforce all of the
EXH.
15-1
obligations
of the Company thereunder insofar as they
relate to the Mortgage Loans, and (iv) all references to the Purchaser, the
Custodian or the Bailee under the Sale and Servicing Agreement insofar as they
relate to the Mortgage Loans, shall be deemed to refer to the Trust (including
the Trustee and the Servicer acting on the Trust’s behalf). Neither
the Company nor the Assignor shall amend or agree to amend, modify, waiver,
or
otherwise alter any of the terms or provisions of the Sale and Servicing
Agreement which amendment, modification, waiver or other alteration would in
any
way affect the Mortgage Loans or the Company’s performance under the Sale and
Servicing Agreement with respect to the Mortgage Loans without the prior written
consent of the Trustee.
Representations
and Warranties of the Company
3. The
Company warrants and represents to the Assignor, the Assignee and the Trust
as
of the date hereof that:
(a) The
Company is duly organized, validly existing and in good standing under the
laws
of the jurisdiction of its incorporation;
(b) The
Company has full power and authority to execute, deliver and perform its
obligations under this Agreement and has full power and authority to perform
its
obligations under the Sale and Servicing Agreement. The execution by
the Company of this Agreement is in the ordinary course of the Company’s
business and will not conflict with, or result in a breach of, any of the terms,
conditions or provisions of the Company’s charter or bylaws or any legal
restriction, or any material agreement or instrument to which the Company is
now
a party or by which it is bound, or result in the violation of any law, rule,
regulation, order, judgment or decree to which the Company or its property
is
subject. The execution, delivery and performance by the Company of
this Agreement have been duly authorized by all necessary corporate action
on
part of the Company. This Agreement has been duly executed and
delivered by the Company, and, upon the due authorization, execution and
delivery by the Assignor and the Assignee, will constitute the valid and legally
binding obligation of the Company, enforceable against the Company in accordance
with its terms except as enforceability may be limited by bankruptcy,
reorganization, insolvency, moratorium or other similar laws now or hereafter
in
effect relating to creditors’ rights generally, and by general principles of
equity regardless of whether enforceability is considered in a proceeding in
equity or at law;
(c) No
consent, approval, order or authorization of, or declaration, filing or
registration with, any governmental entity is required to be obtained or made
by
the Company in connection with the execution, delivery or performance by the
Company of this Agreement; and
(d) There
is no action, suit, proceeding or investigation pending or threatened against
the Company, before any court, administrative agency or other tribunal, which
would draw into question the validity of this Agreement or the Sale and
Servicing Agreement, or which, either in any one instance or in the aggregate,
would result in any material adverse change in the ability of the Company to
perform its obligations under this Agreement or the Sale and Servicing
Agreement, and the Company is solvent.
EX▇.
▇▇-▇
▇.
▇▇▇▇▇▇▇▇ ▇o Section 15 of the Sale and Servicing Agreement, the Company
hereby represents and warrants, for the benefit of the Assignor, the Assignee
and the Trust, that the representations and warranties set forth in
Section 7.01 and Section 7.02 of the Sale and Servicing Agreement are
true and correct as of the date hereof as if such representations and warranties
were made on the date hereof unless otherwise specifically stated in such
representations and warranties.
Remedies
for Breach of Representations and Warranties
5.
The Company hereby acknowledges and agrees that the remedies available to the
Assignor, the Assignee and the Trust (including the Trustee and the Servicer
acting on the Trust’s behalf) in connection with any breach of the
representations and warranties made by the Company set forth in Sections 3
and 4 hereof shall be as set forth in Subsection 7.03 of the Sale
and Servicing Agreement as if they were set forth herein (including without
limitation the repurchase and indemnity obligations set forth
therein).
Miscellaneous
6.
This Agreement shall be construed in accordance with the laws of the State
of
New York, without regard to conflicts of law principles, and the obligations,
rights and remedies of the parties hereunder shall be determined in accordance
with such laws.
7.
No term or provision of this Agreement may be waived or modified unless such
waiver or modification is in writing and signed by the party against whom such
waiver or modification is sought to be enforced, with the prior written consent
of the Trustee.
8. This
Agreement shall inure to the benefit of (i) the successors and assigns of
the parties hereto and (ii) the Trust (including the Trustee and the
Servicer acting on the Trust’s behalf). Any entity into which
Assignor, Assignee or Company may be merged or consolidated shall, without
the
requirement for any further writing, be deemed Assignor, Assignee or Company,
respectively, hereunder.
9.
Each of this Agreement and the Sale and Servicing Agreement shall survive the
conveyance of the Mortgage Loans and the assignment of the Sale and Servicing
Agreement (to the extent assigned hereunder) by Assignor to Assignee and by
Assignee to the Trust and nothing contained herein shall supersede or amend
the
terms of the Sale and Servicing Agreement.
10. This
Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original and
all such counterparts shall constitute one and the same instrument.
11. In
the event that any provision of this Agreement conflicts with any provision
of
the Sale and Servicing Agreement with respect to the Mortgage Loans, the terms
of this Agreement shall control.
EXH.
15-3
12. Capitalized
terms used in this Agreement (including the exhibits hereto) but not defined
in
this Agreement shall have the meanings given to such terms in the Sale and
Servicing Agreement.
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed by their
duly authorized officers as of the date first above written.
| US BANK, N.A. | |
| By: | |
| Name:______________________ | |
| Its: ________________________ | |
| ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MORTGAGE | |
| CAPITAL HOLDINGS LLC | |
| By: | |
| Name:______________________ | |
| Its: ________________________ |
| [ASSIGNEE] | |
| By: | |
| Name:________________________ | |
| Its:___________________________ | |
EXH.
15-4
EXHIBIT
16
FORM
OF
ANNUAL CERTIFICATION
|
|
Re:
|
The
[ ] agreement dated as of [ ], 200[ ] (the
“Agreement”), among [IDENTIFY
PARTIES]
|
I,
________________________________, the _______________________ of [NAME OF
COMPANY], certify to [the Purchaser], [the Depositor], and the [Master Servicer]
[Securities Administrator] [Trustee], and their officers, with the knowledge
and
intent that they will rely upon this certification, that:
1. I
have reviewed the servicer compliance statement of the Company provided in
accordance with Item 1123 of Regulation AB (the “Compliance Statement”), the
report on assessment of the Company’s compliance with the servicing criteria set
forth in Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided in
accordance with Rules 13a-18 and 15d-18 under Securities Exchange Act of 1934,
as amended (the “Exchange Act”) and Item 1122 of Regulation AB (the “Servicing
Assessment”), the registered public accounting firm’s attestation report
provided in accordance with Rules 13a-18 and 15d-18 under the Exchange Act
and
Section 1122(b) of Regulation AB (the “Attestation Report”), and all servicing
reports, officer’s certificates and other information relating to the servicing
of the Mortgage Loans by the Company during 200[ ] that were delivered by the
Company to the [Depositor] [Master Servicer] [Securities Administrator]
[Trustee] pursuant to the Agreement (collectively, the “Company Servicing
Information”);
2. Based
on my knowledge, the Company Servicing Information, taken as a whole, does
not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances under
which such statements were made, not misleading with respect to the period
of
time covered by the Company Servicing Information;
3. Based
on my knowledge, all of the Company Servicing Information required to be
provided by the Company under the Agreement has been provided to the [Depositor]
[Master Servicer] [Securities Administrator] [Trustee];
4. I
am responsible for reviewing the activities performed by the Company as servicer
under the Agreement, and based on my knowledge and the compliance review
conducted in preparing the Compliance Statement and except as disclosed in
the
Compliance Statement, the Servicing Assessment or the Attestation Report, the
Company has fulfilled its obligations under the Agreement in all material
respects; and
5. The
Compliance Statement required to be delivered by the Company pursuant to the
Agreement, and the Servicing Assessment and Attestation Report required to
be
provided by the Company and by any Subservicer or Subcontractor pursuant to
the
Agreement, have been provided to the [Depositor] [Master
Servicer]. Any material instances of noncompliance described in such
reports have been disclosed to the
▇▇▇.
▇▇-▇
[▇▇▇▇▇▇▇▇▇]
[Master Servicer]. Any
material instance of noncompliance with the Servicing Criteria has been
disclosed in such reports.
| Date: _________________________________ | |
| By: ___________________________________ | |
| Name: | |
| Title: | |
▇▇▇.
▇▇-▇
▇▇▇▇▇▇▇
▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by US Bank N.A. [Name of Subservicer]
shall address, at a minimum, the criteria identified as below as “Applicable
Servicing Criteria”:
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
|
General
Servicing Considerations
|
||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
Ö
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
Ö
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
Ö
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Cash
Collection and Administration
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||
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
Ö
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
Ö
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
Ö
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Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
Ö
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
Ö
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized access.
|
Ö
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
Ö
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|
Investor
Remittances and Reporting
|
||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
Ö
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Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
Ö
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
Ö
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
Ö
|
|
Pool
Asset Administration
|
||
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the transaction
agreements or related mortgage loan documents.
|
Ö
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements
|
Ö
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
Ö
|
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow) in
accordance with the related mortgage loan documents.
|
Ö
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
Ö
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor’s mortgage loans (e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
Ö
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Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
Ö
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
Ö
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
|
Ö
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period specified
in
the transaction agreements; (B) interest on such funds is paid, or
credited, to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
Ö
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
Ö
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
Ö
|
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▇▇▇▇▇▇▇▇
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
Ö
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
Ö
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
|
|
[US
Bank N.A.] [NAME OF SUBSERVICER]
|
|
|
|
Date: ____________________________
|
|
|
|
By:__________________________________
|
|
|
Name:
|
|
|
Title:
|
Inc.
INC.
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