MASTER MORTGAGE LOAN PURCHASE AND SERVICING AGREEMENT GREENWICH CAPITAL FINANCIAL PRODUCTS, INC., Purchaser and COUNTRYWIDE HOME LOANS, INC., Seller and Servicer Dated as of April 1, 2003 Conventional Residential Fixed and Adjustable Rate Mortgage Loans
GREENWICH
CAPITAL FINANCIAL PRODUCTS, INC.,
Purchaser
and
COUNTRYWIDE
HOME LOANS, INC.,
Seller
and Servicer
Dated
as
of April 1, 2003
Conventional
Residential Fixed and Adjustable Rate
Mortgage
Loans
The
following are excerpts of the relevant servicing provisions from
the:
This
is a
MASTER MORTGAGE LOAN PURCHASE AND SERVICING AGREEMENT (the "Agreement"),
dated
as of April 1, 2003, by and between GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.,
having an office at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
"Purchaser")
and
Countrywide Home Loans, Inc., having an office at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Seller").
SECTION
1. Definitions.
For
purposes of this Agreement the following capitalized terms shall have the
respective meanings set forth below.
Adjustable
Rate Mortgage Loan:
A
Mortgage Loan which provides for the adjustment of the Mortgage Interest Rate
payable in respect thereto.
Agreement:
This
Master Mortgage Loan Purchase and Servicing Agreement and all amendments hereof
and supplements hereto.
Assignment
of Mortgage:
An
assignment of the Mortgage, notice of transfer or equivalent instrument in
recordable form, sufficient under the laws of the jurisdiction wherein the
related Mortgaged Property is located to reflect the sale of the Mortgage to
the
Purchaser.
BIF:
The
Bank Insurance Fund, or any successor thereto.
Business
Day:
Any day
other than (i) a Saturday or Sunday, or (ii) a day on which banking and savings
and loan institutions, in the States of California or New York, or the state
in
which the Seller's servicing operations are located, are authorized or obligated
by law or executive order to be closed.
Closing
Date:
The
date this Agreement is executed and delivered and 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.
Condemnation
Proceeds:
All
awards, compensation and settlements in respect of a taking of all or part
of a
Mortgaged Property by exercise of the power of condemnation or the right of
eminent domain.
Custodial
Account:
The
separate account or accounts created and maintained pursuant to this Agreement,
which shall be entitled "Countrywide Home Loans, Inc. in trust for the
Purchaser".
Custodial
Agreement:
The
agreement governing the retention of the originals of each Mortgage Note,
Mortgage, Assignment of Mortgage and other Mortgage Loan Documents, a form
of
which agreement is annexed hereto as Exhibit
6.
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Custodian:
The
custodian under the Custodial Agreement, or its successor in interest or
assigns, or any successor to the Custodian under the Custodial Agreement, as
therein provided.
Cut-off
Date:
The
first day of the month in which the related Closing Date occurs or such other
date as agreed to by the Purchaser and the Seller.
Determination
Date:
The
15th day of the month of the related Remittance Date or if such 15th day is
not
a Business Day, the Business Day immediately preceding such 15th
day.
Due
Date:
The day
of the month on which the Monthly Payment is due on a Mortgage Loan, exclusive
of any days of grace.
Eligible
Account:
An
account or accounts (i) maintained with a depository institution the short
term
debt obligations of which are rated by Standard & Poor's Ratings Group in
one of its two (2) highest rating categories at the time of any deposit therein,
(ii) the deposits of which are fully insured by the FDIC, or (iii) maintained
with an affiliate of the Seller that satisfies the requirements set forth in
either clause (i) or (ii) of this definition. Eligible Accounts may bear
interest
Escrow
Account:
The
separate trust account or accounts created and maintained pursuant to this
Agreement which shall be entitled "Countrywide Home Loans, Inc. in trust for
the
Purchaser and various Mortgagors".
Event
of Default:
Any one
of the conditions or circumstances enumerated in Section 14.01.
Fair
Market Value:
With
respect to any Mortgage Loan, the market value of the related Mortgaged Property
as mutually agreed upon by the Seller and the Purchaser. In the event the Seller
and the Purchaser disagree as to such Fair Market Value, the Seller shall have
the option to select an appraiser from a list of three independent appraisers
selected by the Purchaser, each of whom meets the minimum FNMA or FHLMC
requisite qualifications for appraisers. Such appraiser shall determine the
Fair
Market Value of the Mortgaged Property in accordance with the then current
guidelines for the Seller's "full documentation program". Such appraisal shall
be in a form acceptable to FNMA or FHLMC and shall be conclusive for the
purposes of determining the Fair Market Value of the Mortgaged Property. The
fee
for such appraisal shall be paid by the Seller, except in the event such fee
is
incurred in connection with calculating the Termination Fee in which case the
Purchaser shall pay the fee for such appraisal.
FDIC:
The
Federal Deposit Insurance Corporation, or any successor thereto.
FHLMC:
The
Federal Home Loan Mortgage Corporation or any successor thereto.
FNMA:
▇▇▇▇▇▇
▇▇▇ or any successor thereto.
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HUD:
The
Department of Housing and Urban Development or any federal agency or office
thereof which may from time to time succeed to the functions
thereof.
Index:
With
respect to any Mortgage Loan, the index set forth in the related Mortgage Note
for the purpose of calculating the interest rate thereon.
Insurance
Proceeds:
With
respect to each Mortgage Loan, proceeds of insurance policies insuring the
Mortgage Loan or the related Mortgaged Property.
Interest
Adjustment Date:
With
respect to an Adjustable Rate Mortgage Loan, the date on which an adjustment
to
the Mortgage Interest Rate on a Mortgage Note becomes effective.
Late
Collections:
With
respect to any Mortgage Loan, all amounts received during any Due Period,
whether as late payments of Monthly Payments or as Liquidation Proceeds,
Condemnation Proceeds, Primary Mortgage Insurance Proceeds, Other Insurance
Proceeds, proceeds of any REO Disposition or otherwise, which represent late
payments or collections of Monthly Payments due but delinquent for a previous
Due Period and not previously recovered.
Liquidation
Proceeds:
Amounts, other than Primary Mortgage Insurance Proceeds, Condemnation Proceeds
and Other Insurance Proceeds, received by the Seller in connection with the
liquidation of a defaulted Mortgage Loan through trustee's sale, foreclosure
sale or otherwise, other than amounts received following the acquisition of
an
REO Property pursuant to Section 11.13.
MERS:
Mortgage Electronic Registration Systems, Inc., a corporation organized and
existing under the laws of the State of Delaware, or any successor
thereto.
MERS
Mortgage Loan:
Any
Mortgage Loan registered with MERS on the MERS System.
MERS
System:
The
system of recording transfers of mortgages electronically maintained by
MERS.
Monthly
Advance:
The
aggregate of the advances made by the Seller on any Remittance Date pursuant
to
Section 11.19.
Monthly
Payment:
The
scheduled monthly payment of principal and interest on a Mortgage
Loan.
Mortgage:
The
mortgage, deed of trust or other instrument securing a Mortgage Note, which
creates a first lien on an unsubordinated estate in fee simple in real property
securing the Mortgage Note; except that with respect to real property located
in
the state of Hawaii, the mortgage, deed of trust or other instrument securing
the Mortgage Note may secure and create a first lien upon a leasehold estate
of
the Mortgagor.
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Mortgage
File:
The
items pertaining to a particular Mortgage Loan referred to in Exhibit
5
annexed
hereto, and any additional documents required to be added to the Mortgage File
pursuant to this Agreement which Mortgage File may be maintained by the Seller
on microfilm (provided that (i) the Seller shall notify the Purchaser in writing
two (2) Business Days before any original items in the Mortgage File are to
be
destroyed and the Seller shall deliver said original items to the Purchaser
upon
the Purchaser's request and (ii) following the destruction of said originals,
the Seller shall deliver a copy of said microfilm to the Purchaser upon the
Purchaser's request).
Mortgage
Interest Rate:
The
annual rate at which interest accrues on any Mortgage Loan, exclusive of any
primary mortgage insurance premium and, with respect to an Adjustable Rate
Mortgage Loan, as adjusted from time to time in accordance with the provisions
of the related Mortgage Note and in compliance with the related Lifetime
Mortgage Interest Rate Cap and Periodic Rate Cap of the related Mortgage
Note.
Mortgage
Loan:
An
individual Mortgage Loan which is the subject of this Agreement, each Mortgage
Loan originally sold and subject to this Agreement being identified on the
related Mortgage Loan Schedule, which Mortgage Loan includes without limitation
the Mortgage File, the Monthly Payments, Principal Prepayments, Liquidation
Proceeds, Condemnation Proceeds, Insurance Proceeds, REO Disposition proceeds,
and all other rights, benefits, proceeds and obligations arising from or in
connection with such Mortgage Loan.
Mortgage
Loan Documents:
The
documents listed in Section 2 of the Custodial Agreement pertaining to any
Mortgage Loan.
Mortgage
Loan Package:
The
pool of Mortgage Loans sold to the Purchaser on the related Closing
Date.
Mortgage
Note:
The
note or other evidence of the indebtedness of a Mortgagor secured by a
Mortgage.
Mortgaged
Property:
The
real property (or leasehold estate, if applicable, in the case of a Mortgage
Loan in the state of Hawaii) securing repayment of the debt evidenced by a
Mortgage Note.
Mortgagor:
The
obligor on a Mortgage Note.
Officer's
Certificate:
A
certificate signed by the Chairman of the Board or the Vice Chairman of the
Board or a President or a Vice President and by the Treasurer or the Secretary
or one of the Assistant Treasurers or Assistant Secretaries of the Seller,
and
delivered to the Purchaser.
Opinion
of Counsel:
A
written opinion of counsel, who may be an employee of the party on behalf of
whom the opinion is being given, reasonably acceptable to the
Purchaser.
Other
Insurance Proceeds:
Proceeds of any title policy, hazard policy, pool policy or other insurance
policy covering a Mortgage Loan, other than the Primary Mortgage Insurance
Policy, if any, to the extent such proceeds are not to be applied to the
restoration of the related Mortgaged Property or released to the Mortgagor
in
accordance with the procedures that the Seller would follow in servicing
mortgage loans held for its own account.
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Payment
Adjustment Date:
With
respect to each Adjustable Rate Mortgage Loan, the date on which an adjustment
to the Monthly Payment pursuant to the related Mortgage Note becomes
effective.
Pass-Through
Transfer:
The
sale or transfer of some or all of the Mortgage Loans to a trust to be formed
as
part of a publicly or privately traded pass-through transaction retaining the
Seller as "servicer" thereunder.
Person:
Any
individual, corporation, partnership, joint venture, association, joint-stock
company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
Prepayment
Interest Shortfall Amount:
With
respect to any Mortgage Loan that was subject to a Principal Prepayment in
full
or in part during any Due Period, which Principal Prepayment was applied to
such
Mortgage Loan prior to such Mortgage Loan's Due Date in such Due Period, the
amount of interest (net of the related Servicing Fee) that would have accrued
on
the amount of such Principal Prepayment during the period commencing on the
date
as of which such Principal Prepayment was applied to such Mortgage Loan and
ending on the day immediately preceding such Due Date, inclusive.
Primary
Mortgage Insurance Policy:
A
policy of primary mortgage guaranty insurance issued by a Qualified Insurer
which conforms in all respects to the description set forth in Subsection 7.02
(xxxi) herein.
Principal
Prepayment:
Any
payment or other recovery of principal on a Mortgage Loan which is received
in
advance of its scheduled Due Date, including any prepayment penalty or premium
thereon, which is not accompanied by an amount of interest representing
scheduled interest due on any date or dates in any month or months subsequent
to
the month of prepayment.
Principal
Prepayment Period:
As to
any Remittance Date, the calendar month preceding the month of
distribution.
Purchaser:
Greenwich Capital Financial Products, Inc. or its successor in interest or
any
successor to or assignee of the Purchaser under this Agreement as herein
provided.
Reconstitution
Agreements:
The
agreement or agreements entered into by the Seller and the Purchaser and/or
certain third parties on the Reconstitution Date or Dates with respect to any
or
all of the Mortgage Loans serviced hereunder, in connection with a Whole Loan
Transfer or a Pass-Through Transfer as set forth in Section 12. Such agreement
or agreements shall prescribe the rights and obligations of the Seller in
servicing the related Mortgage Loans.
Reconstitution
Date:
The
date or dates on which any or all of the Mortgage Loans serviced under this
Agreement shall be removed from this Agreement and reconstituted as part of
a
Whole Loan Transfer or Pass-Through Transfer pursuant to Section 12 hereof.
On
such date, the Mortgage Loans transferred shall cease to be covered by this
Agreement and the Seller shall cease to service those Mortgage Loans under
this
Agreement in accordance with the termination provisions set forth in Section
12
hereof.
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REMIC:
A "real
estate mortgage investment conduit" within the meaning of Section 860D of the
Internal Revenue Code.
Remittance
Date:
The
eighteenth (18th) day of any month, or if such eighteenth (18th) day is not
a
Business Day, the first Business Day immediately following.
REO
Disposition:
The
final sale by the Seller of any REO Property.
REO
Property:
A
Mortgaged Property acquired by the Seller on behalf of the Purchaser as
described in Section 11.13 of the Servicing Addendum attached as Exhibit
9.
Repurchase
Price:
With
respect to any Mortgage Loan, a price equal to (i) the Stated Principal Balance
of the Mortgage Loan plus (ii) interest on such Stated Principal Balance at
the
Mortgage Loan Remittance Rate from the last date through which interest has
been
paid and distributed to the Purchaser to the date of repurchase, less amounts
received or advanced in respect of such repurchased Mortgage Loan which are
being held in the Custodial Account for distribution in the month of
repurchase.
SAIF:
The
Savings Association Insurance Fund, or any successor thereto.
Seller:
Countrywide Home Loans, Inc., or any successor to or assignee of the Seller
under this Agreement as provided herein.
Servicing
Addendum:
The
terms and conditions attached hereto as Exhibit 9 which will govern the
servicing of the Mortgage Loans by Seller during the period commencing on the
related Closing Date and ending on the date the Seller enters into a
Reconstitution Agreement.
Servicing
Advances:
All
customary, reasonable and necessary "out of pocket" costs and expenses incurred
in the performance by the Seller 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 REO Property and
(iv)
compliance with the obligations under this Agreement.
Servicing
Fee:
With
respect to each Mortgage Loan, the amount of the annual fee the Purchaser shall
pay to the Seller, which shall, for a period of one full month, be equal to
one-twelfth of the product of (a) the Servicing Fee Rate and (b) the 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. The obligation
of
the Purchaser to pay the Servicing Fee is limited to, and the Servicing Fee
is
payable solely from, the interest portion of such Monthly Payment collected
by
the Seller, or as otherwise provided under Section 11 hereof. With respect
to
REO Property, the Servicing Fee shall be payable to the Seller through REO
Disposition in accordance with Section 11.13 of the Servicing Addendum which
Servicing Fee shall be based upon the Stated Principal Balance of the related
Mortgage Loan at the time of foreclosure as reduced by any income or proceeds
received by Purchaser in respect of such REO Property and applied to reduce
the
outstanding principal balance of the foreclosed Mortgage Loan.
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Servicing
File:
With
respect to each Mortgage Loan, the file retained by the Seller consisting of
(a)
originals of all documents in the Mortgage File other than those delivered
to
Purchaser or copies of such documents maintained on microfilm (provided that
(i)
the Seller shall notify the Purchaser in writing two (2) Business Days before
any original items in the Servicing File are to be destroyed and the Seller
shall deliver said originals to the Purchaser upon the Purchaser's request
and
(ii) following the destruction of said originals, the Seller shall deliver
a
copy of said microfilm to the Purchaser upon the Purchaser's request) which
are
not delivered to the Purchaser or the Custodian and (b) copies of the Mortgage
Loan Documents set forth in Section 2 of the Custodial
Agreement.
Servicing
Officer:
Any
officer of the Seller involved in, or responsible for, the administration and
servicing of the Mortgage Loans whose name appears on a list of servicing
officers furnished by the Seller to the Purchaser upon request, as such list
may
from time to time be amended.
Stated
Principal Balance:
With
respect to each Mortgage Loan as of the date of such determination: (i) the
unpaid principal balance of the Mortgage Loan as of the Cut-off Date after
giving effect to payments of principal due on or before such date, whether
or
not received, and without giving effect to payments received on or before such
date in respect of payments due after such date for application on the scheduled
Due Date, 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.
Termination
Fee:
The
amount paid to the Seller by the Purchaser in the event of the Seller's
termination without cause, as servicer. Such fee shall equal the
sum of (i) the greater of (A) two and one-half percent (2½%) of the aggregate
outstanding principal amount of the Mortgage Loans, or (B) the fair market
value
of the servicing rights, each as of the termination date, plus (ii) all
reasonable costs and expenses incurred by the Seller in managing the transfer
of
the servicing, plus (iii)
in the
case of REO Property, the greater of (Y) 100% of the Stated Principal Balance
of
the Mortgage Loan encumbering the Mortgaged Property at the time such Mortgaged
Property was acquired and became REO Property or (Z) the Fair Market Value
of
the REO Property at the time of termination.
Underwriting
Guidelines:
As defined in the respective Purchase Price and Terms Letter.
Updated
Loan-to-Value Ratio:
With
respect to any Mortgage Loan, the outstanding principal balance of such Mortgage
Loan as of the date of determination divided by the Value of the related
Mortgaged Property as determined by the appraisal made for the originator at
the
time of origination of the Mortgage Loan or in the event that an appraisal
was
made since the origination of the Mortgage Loan then the latest appraisal of
the
Mortgaged Property. Such appraisal shall (i) be in a form acceptable to FNMA
and
FHLMC and (ii) meet the then current guidelines for the Company's so called
"full documentation" program.
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Whole
Loan Transfer:
The
sale or transfer by Purchaser of some or all of the Mortgage Loans in a whole
loan or participation certificate format pursuant to a Reconstitution Agreement
retaining the Seller as "servicer" thereunder.
SECTION
11. Seller's
Servicing Obligations.
The
Seller, as servicer, shall service and administer the Mortgage Loans in
accordance with the terms and provisions set forth in Exhibit
9
which
sections are hereby incorporated in this Agreement in their entirety as if
the
same were contained in this Section 11.
SECTION
12. Removal
of Mortgage Loans from Inclusion Under this Agreement Upon a Whole Loan Transfer
or a Pass-Through Transfer on One or More Reconstitution Dates.
The
Seller and the Purchaser agree that with respect to any Mortgage Loan Package,
the Purchaser may effect no more than three (3) Whole Loan Transfers and/or
Pass-Through Transfers; provided, however, the Purchaser agrees to use
commercially reasonable efforts not to effect a Whole Loan Transfer or a
Pass-Through Transfer if the aggregate outstanding principal balance of the
Mortgage Loans subject to such Whole Loan Transfer or Pass-Through Transfer
is
less than $10,000,000.
With
respect to each Whole Loan Transfer or Pass-Through Transfer, as the case may
be, entered into by Purchaser, Seller agrees:
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(1)
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to
cooperate fully with Purchaser and any prospective purchaser with
respect
to all reasonable requests, and due diligence procedures, including
but
not limited to providing statements and audit letters of reputable,
certified public accountants pertaining to information provided by
the
Seller pursuant to clause 4 below as shall be reasonably requested
by the
Purchaser,;
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(2)
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to
execute all Reconstitution Agreements provided that (i) such
Reconstitution Agreements are reasonably acceptable to the Seller,
and
(ii) each of the Seller and the Purchaser is given an opportunity
to
review and reasonably negotiate in good faith the content of such
documents not specifically referenced or provided herein, and (iii)
such
Reconstitution Agreement does not materially diminish Seller’s rights or
materially increase Seller’s responsibilities under this
Agreement;
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(3)
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with
respect to any Mortgage Loan that is subject to a Whole Loan Transfer
or a
Pass-Through Transfer (a) the Seller shall make the representations
and
warranties regarding such Mortgage Loan contained herein only as
of the
related Closing Date, and (b) which occurs within twelve months of
the
Closing Date for such Mortgage Loan, the Seller shall restate the
representations and warranties regarding the Seller set forth in
Subsection 7.01 as of the date of such Whole Loan Transfer or Pass-Through
Transfer;
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(4)
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to
deliver to the Purchaser for inclusion in any prospectus or other
offering
material such publicly available information regarding the Seller,
its
financial condition and its most recently publicly disclosed mortgage
loan
delinquency, foreclosure and loss experience as shall be reasonably
requested by the Purchaser and any additional information which the
Seller
is capable of providing without unreasonable effort or expense; provided
however, that the Purchaser, shall indemnify and hold harmless the
Seller,
each affiliate designated by the Seller and each person who controls
the
Seller or such affiliate from and against any and all losses, claims,
damages and liabilities arising from, with respect to information
not
provided by the Seller pursuant to this Subsection 12(4), any untrue
statement or alleged untrue statement of a material fact contained
in any
information in the related offering documents, or caused by any omission
or alleged omission to state therein a material fact required to
be stated
therein or necessary to make the statements therein, in light of
the
circumstances under which they were made, not misleading, and the
Seller
shall indemnify and hold harmless the Purchaser, each affiliate designated
by the Purchaser and each person who controls the Purchaser or such
affiliate from and against any and all losses, claims, damages and
liabilities arising from, with respect to information provided by
the
Seller pursuant to this Subsection 12(4), any untrue statement or
alleged
untrue statement of a material fact contained in any information
in the
related offering documents, or caused by any omission or alleged
omission
to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading;
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(5)
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to
deliver to the Purchaser, and to any Person designated by the Purchaser,
such in-house opinions of counsel as are customarily delivered by
originators or servicers of mortgage loans, as the case may be, in
connection with Whole Loan Transfers or Pass-Through Transfers, as
the
case may be, it being understood that the cost of any opinions of
outside
special counsel that may be required for a Whole Loan Transfer or
Pass-Through Transfer, as the case may be, shall be the responsibility
of
the Purchaser; and
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(6)
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to
reasonably cooperate with the Purchaser and any prospective purchaser
with
respect to the preparation of Mortgage Loan Documents and such other
documents, and with respect to the servicing of the Mortgage Loans
in
accordance with the requirements from time to time of the rating
agencies
rating a Whole Loan Transfer or Pass-Through Transfer, the credit
enhancers providing credit enhancement thereon and the requirements
of the
Purchaser's shelf registration
statement.
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All
Mortgage Loans not sold or transferred pursuant to a Whole Loan Transfer or
Pass-Through Transfer shall be 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. In connection
with
the sale or transfer of any MERS Mortgage Loan, the Seller shall cause MERS
to
designate on the MERS System the assignee (or the related trust, for the benefit
of the related certificateholders) or its designee as the beneficial holder
of
such Mortgage Loan
SECTION
13. The
Seller.
Subsection
13.01. Additional
Indemnification by the Seller; Third Party Claims.
The
Seller shall indemnify the Purchaser and hold it harmless against any and all
claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary
legal fees and related costs, judgments, and any other costs, fees and expenses
that the Purchaser may sustain in any way related to the failure of the Seller
to perform its duties and service the Mortgage Loans in compliance with the
terms of this Agreement. Notwithstanding the foregoing, the Purchaser shall
indemnify the Seller and hold it harmless against any and all claims, losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees
and
related costs, judgments, and any other costs, fees and expenses that the Seller
may sustain in any way related to (a) actions or inactions of the Seller which
were taken or omitted upon the instruction or direction of the Purchaser, or
(b)
the failure of the Purchaser to perform its obligations under this Agreement,
including the provisions of Subsection 13.03. Each party to this Agreement
shall
immediately notify the other if a claim is made upon such party by a third
party
with respect to this Agreement or the Mortgage Loans. Upon the prior written
consent of Purchaser, which consent shall not be unreasonably withheld, the
Seller shall assume the defense of any such claim and pay all expenses in
connection therewith, including counsel fees, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or the Purchaser
in respect of such claim. The Purchaser promptly shall reimburse the Seller
for
all amounts advanced by it pursuant to the preceding sentence except when the
claim is related to the Seller's indemnification pursuant to Section 7; or
the
failure of the Seller to service and administer the Mortgage Loans in compliance
with the terms of this Agreement.
Subsection
13.02. Merger
or Consolidation of the Seller.
The
Seller will keep in full effect its existence, rights and franchises as a
corporation under the laws of the state of its incorporation except as permitted
herein, and will obtain and preserve its qualification to do business as a
foreign corporation in each jurisdiction in which such qualification is or
shall
be necessary to protect the validity and enforceability of this Agreement,
or
any of the Mortgage Loans and to perform its duties under this
Agreement.
Any
Person into which the Seller may be merged or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Seller
shall
be a party, or any Person succeeding to the business of the Seller, shall be
the
successor of the Seller hereunder, without the execution or filing of any paper
or any further act on the part of any of the parties hereto, anything herein
to
the contrary notwithstanding; provided, however, that the successor or surviving
Person shall be an institution whose deposits are insured by FDIC or a company
whose business is the origination and servicing of mortgage loans, unless
otherwise consented to by the Purchaser, which consent shall not be unreasonably
withheld, shall be qualified to service mortgage loans on behalf of FNMA or
FHLMC and shall satisfy the requirements of Section 16 with respect to the
qualifications of a successor to the Seller.
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Subsection
13.03. Limitation
on Liability of the Seller and Others.
Neither
the Seller nor any of the officers, employees or agents of the Seller shall
be
under any liability to the Purchaser for any action taken or for refraining
from
the taking of any action in good faith pursuant to this Agreement, or for errors
in judgment; provided, however, that this provision shall not protect the Seller
or any such person against any breach of warranties or representations made
herein, or failure to perform its obligations in compliance with any standard
of
care set forth in this Agreement, or any liability which would otherwise be
imposed by reason of any breach of the terms and conditions of this Agreement.
The Seller and any officer, employee or agent of the Seller may rely in good
faith on any document of any kind prima facie properly executed and submitted
by
any Person respecting any matters arising hereunder. Notwithstanding anything
to
the contrary contained in this Agreement, unless one or more Event of Default
by
the Seller shall occur and shall not have been remedied within the time limits
set forth in Section 14 of this Agreement, the Purchaser shall not record or
cause to be recorded an Assignment of Mortgage with the recording office. To
the
extent the Purchaser records with the recording office as permitted herein
an
Assignment of Mortgage which designates the Purchaser as the holder of record
of
the Mortgage, the Purchaser agrees that it shall (i) provide the Seller with
immediate notice of any action with respect to the Mortgage or the related
Mortgaged Property and ensure that the Investor Accounting Department at the
Seller receives such notice; and (ii) immediately complete, sign and return
to
the Seller any document reasonably requested by the Seller to comply with its
servicing obligations, including without limitation, any instrument required
to
release the Mortgage upon payment in full of the obligation or take any other
action reasonably required by the Seller. The Purchaser further agrees that
the
Seller shall have no liability for the Purchaser’s failure to comply with the
subsections (i) or (ii) in the foregoing sentence. The Seller shall not be
under
any obligation to appear in, prosecute or defend any legal action which is
not
incidental to its duties to service the Mortgage Loans in accordance with this
Agreement and which in its opinion may involve it in any expenses or liability;
provided, however, that the Seller may, with the consent of the Purchaser,
undertake any such action which it may deem necessary or desirable in respect
to
this Agreement and the rights and duties of the parties hereto. In such event,
the legal expenses and costs of such action and any liability resulting
therefrom shall be expenses, costs and liabilities for which the Purchaser
will
be liable, the Seller shall be entitled to be reimbursed therefor from the
Purchaser upon written demand.
Subsection
13.04. Seller
Not to Resign.
The
Seller shall not assign this Agreement or resign from the obligations and duties
hereby imposed on it except by mutual consent of the Seller and the Purchaser
or
upon the determination that its duties hereunder are no longer permissible
under
applicable law and such incapacity cannot be cured by the Seller. Any such
determination permitting the resignation of the Seller shall be evidenced by
an
Opinion of Counsel to such effect delivered to the Purchaser which Opinion
of
Counsel shall be in form and substance acceptable to the Purchaser. No such
resignation shall become effective until a successor shall have assumed the
Seller's responsibilities and obligations hereunder in the manner provided
in
Section 16.
-11-
Subsection
13.05. No
Transfer of Servicing.
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, Seller shall not either assign this Agreement or the servicing
hereunder or delegate a substantial portion of its rights or duties hereunder,
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
will
not be unreasonably withheld; provided, however, the Seller may, with prior
notice but without Purchaser’s consent, assign its rights and obligations as
servicer hereunder to an entity if (i) such entity is directly or indirectly
owned or controlled by the Seller, (ii) such entity shall be qualified to
service mortgage loans on behalf of FNMA or FHLMC and shall satisfy the
requirements of Section 16 with respect to the qualifications of a successor
to
the Seller, and (iii) the Seller guaranties the performance by such entity
of
all obligations hereunder. Nothing in this Agreement shall prohibit or limit
the
right of the Seller to assign the servicing rights hereunder to Countrywide
Home
Loans Servicing LP.
SECTION
14. Default.
Subsection
14.01. Events
of Default.
In
case
one or more of the following Events of Default by the Seller shall occur and
be
continuing:
(i) any
failure by the Seller to remit to the Purchaser any payment required to be
made
under the terms of this Agreement which continues unremedied for a period of
two
(2) Business Days after the date upon which written notice of such failure,
requiring the same to be remedied, shall have been given to the Seller by the
Purchaser; or
(ii) failure
on the part of the Seller duly to observe or perform in any material respect
any
other of the covenants or agreements on the part of the Seller set forth in
this
Agreement which continues unremedied for a period of thirty days (except that
such number of days shall be fifteen (15) in the case of a failure to pay any
premium for any insurance policy required to be maintained under this Agreement)
after the date on which written notice of such failure, requiring the same
to be
remedied, shall have been given to the Seller by the Purchaser or by the
Custodian; or
(iii) a
decree
or order of a court or agency or supervisory authority having jurisdiction
for
the appointment of a conservator or receiver or liquidator in any insolvency,
bankruptcy, readjustment of debt, marshalling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs, shall
have been entered against the Seller and such decree or order shall have
remained in force undischarged or unstayed for a period of sixty (60) days;
or
-12-
(iv) the
Seller shall consent to the appointment of a conservator or receiver or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshalling
of
assets and liabilities or similar proceedings of or relating to the Seller
or of
or relating to all or substantially all of its property; or
(v) the
Seller shall admit in writing its inability to pay its debts generally as they
become due, file a petition to take advantage of any applicable insolvency
or
reorganization statute, make an assignment for the benefit of its creditors,
or
voluntarily suspend payment of its obligations; or
(vi) failure
by the Seller to maintain its license to do business or service residential
mortgage loans in any jurisdiction where the Mortgaged Properties are located
which failure continues unremedied for a period of thirty (30) days;
or
(vii) the
Seller ceases to meet the qualifications of a FNMA or FHLMC seller/servicer
and
the failure to meet such qualifications continues unremedied for a period of
thirty (30) days;
(viii) the
Seller attempts, without the consent of the Purchaser, to sell or otherwise
dispose of all or substantially all of its property or assets or to assign
this
Agreement or the servicing responsibilities hereunder or to delegate a
substantial portion of its duties hereunder; or
(ix) the
Seller fails to duly perform, within the required time period, its obligations
under Sections 11.25 and 11.26 of the Servicing Addendum, which failure
continues unremedied for a period of thirty (30) days after the date on which
written notice of such failure, requiring the same to be remedied, shall have
been given to the Seller by any party to this Agreement or by any master
servicer responsible for master servicing the Mortgage Loans pursuant to a
securitization of such Mortgage Loans;
then,
and
in each and every such case, so long as an Event of Default shall not have
been
remedied, the Purchaser, by notice in writing to the Seller may, in addition
to
whatever rights the Purchaser may have at law or equity to damages, including
injunctive relief and specific performance, terminate all the rights and
obligations of the Seller under this Agreement and in and to the Mortgage Loans
and the proceeds thereof. On or after the receipt by the Seller of such written
notice, all authority and power of the Seller under this Agreement, whether
with
respect to the Mortgage Loans or otherwise, shall pass to and be vested in
the
successor appointed pursuant to Section 16. Upon written request from the
Purchaser, the Seller shall prepare, execute and deliver any and all documents
and other instruments, place in such successor'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 Seller's sole expense. The Seller agrees to cooperate with
the
Purchaser and such successor in effecting the termination of the Seller's
responsibilities and rights hereunder, including, without limitation, the
transfer to such successor for administration by it of all cash amounts which
shall at the time be credited by the Seller to the Custodial Account or Escrow
Account or thereafter received with respect to the Mortgage Loans.
-13-
Subsection
14.02. Waiver
of Defaults.
The
Purchaser may waive any default by the Seller in the performance of its
obligations hereunder and its consequences. Upon any such waiver of a past
default, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been remedied for every purpose of this
Agreement. No such waiver shall extend to any subsequent or other default or
impair any right consequent thereon except to the extent expressly so
waived.
SECTION
15. Termination.
Subsection
15.01. Termination.
The
respective obligations and responsibilities of the Seller shall terminate upon:
(i) the later of the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or the disposition of all REO
Property and the remittance of all funds due hereunder; or (ii) by mutual
consent of the Seller and the Purchaser in writing or (iii) the repurchase
by
the Seller of all outstanding Mortgage Loans and REO Property at a price equal
to (a) in the case of a Mortgage Loan, 100% of the Stated Principal Balance
of
each Mortgage Loan on the date of such repurchase plus accrued interest thereon
through the last day of the month of repurchase, and (b) in the case of REO
Property, the lesser of (1) 100% of the Stated Principal Balance of the Mortgage
Loan encumbering the Mortgaged Property at the time such Mortgaged Property
was
acquired and became REO Property or (2) the Fair Market Value of the REO
Property at the time of repurchase.
The
right
of the Seller to repurchase all outstanding Mortgage Loans pursuant to (iii)
above shall be conditional upon the outstanding Stated Principal Balances of
such Mortgage Loans at the time of any such repurchase aggregating less than
10%
of the aggregate Stated Principal Balances of the Mortgage Loans on the related
Cut-off Date.
Subsection
15.02. Termination
Without Cause.
The
Purchaser may, at its sole option, terminate any rights the Seller may have
hereunder, without cause, upon sixty (60) days prior written notice. Any such
notice of termination shall be in writing and delivered to the Seller as
provided in Section 16 of this Agreement. In the event of such termination,
the
Seller shall be entitled to the Termination Fee.
SECTION
16. Successor
to the Seller.
Prior
to
termination of Seller's responsibilities and duties under this Agreement
pursuant to Subsection 15.01(ii) or 15.02, the Purchaser shall (i) succeed
to
and assume all of the Seller's responsibilities, rights, duties and obligations
under this Agreement, or (ii) appoint a successor having a net worth of not
less
than $15,000,000 and which shall succeed to all rights and assume all of the
responsibilities, duties and liabilities of the Seller under this Agreement
prior to the termination of Seller's responsibilities, duties and liabilities
under this Agreement. In connection with such appointment and assumption, the
Purchaser may make such arrangements for the compensation of such successor
out
of payments on Mortgage Loans as it and such successor shall agree. In the
event
that the Seller's duties, responsibilities and liabilities under this Agreement
should be terminated pursuant to the aforementioned Sections, the Seller shall
discharge such duties and responsibilities during the period from the date
it
acquires knowledge of such termination until the effective date thereof with
the
same degree of diligence and prudence which it is obligated to exercise under
this Agreement, and shall take no action whatsoever that might impair or
prejudice the rights or financial condition of its successor. The resignation
or
removal of Seller pursuant to the aforementioned Sections shall not become
effective until a successor shall be appointed pursuant to this Section and
shall in no event relieve the Seller of the representations and warranties
made
pursuant to Subsections 7.01, 7.02, 7.03 and 7.04 and the remedies available
to
the Purchaser thereunder, it being understood and agreed that the provisions
of
such Subsection 7.01, 7.02, 7.03 and 7.04 shall be applicable to the Seller
notwithstanding any such resignation or termination of the Seller, or the
termination of this Agreement.
-14-
Any
successor appointed as provided herein shall execute, acknowledge and deliver
to
the Seller and to the Purchaser an instrument accepting such appointment,
whereupon such successor shall become fully vested with all the rights, powers,
duties, responsibilities, obligations and liabilities of the Seller, with like
effect as if originally named as a party to this Agreement and the Custodial
Agreement. In connection with any such resignation or removal of Seller, either
(i) the successor shall represent and warrant that it is a member of MERS in
good standing and shall agree to comply in all material respects with the rules
and procedures of MERS in connection with the servicing of the Mortgage Loans
that are registered with MERS, or (ii) the Seller shall cooperate with such
successor in causing MERS to execute and deliver an assignment of Mortgage
in
recordable form to transfer the Mortgage from MERS to the Purchaser and to
execute and deliver such other notices, documents and other instruments as
may
be necessary or desirable to effect a transfer of such Mortgage Loan or
servicing of such Mortgage Loan on the MERS System to the successor servicer.
The Seller shall file or cause to be filed any such assignment in the
appropriate recording office. The Successor Servicer shall cause such assignment
to be delivered to the Custodian promptly upon receipt of the original with
evidence of recording thereon or a copy certified by the public recording office
in which such assignment was recorded. Any termination of this Agreement
pursuant to Subsection 13.04, 14.01, 15.01, or 15.02 shall not affect any claims
that the Purchaser may have against the Seller arising prior to any such
termination or resignation.
The
Seller shall timely deliver to the successor the funds in the Custodial Account
and the Escrow Account and the Mortgage Files and related documents and
statements held by it hereunder and the Seller shall account for all funds.
The
Seller shall execute and deliver such instruments and do such other things
all
as may reasonably be required to more fully and definitely vest and confirm
in
the successor all such rights, powers, duties, responsibilities, obligations
and
liabilities of the Seller. The successor shall make arrangements at the time
of
transfer of the servicing responsibilities to the successor servicer to
reimburse the Seller for amounts the Seller actually expended pursuant to this
Agreement (provided that the Seller shall provide the successor servicer with
written evidence of such amounts) which the successor is entitled to retain
hereunder and which would otherwise have been recovered by the Seller pursuant
to this Agreement but for the appointment of the successor
servicer.
-15-
Upon
a
successor's acceptance of appointment as such, the Seller shall notify by mail
the Purchaser of such appointment.
SECTION
17. Financial
Statements.
The
Seller understands that in connection with the Purchaser's marketing of the
Mortgage Loans, the Purchaser shall make available to prospective purchasers
a
Consolidated Statement of Operations of the Seller's parent company, Countrywide
Financial Corporation ("CFC") for the most recently completed three (3) fiscal
years respecting which such a statement is available, as well as a Consolidated
Statement of Condition of CFC at the end of the last two (2) fiscal years
covered by such Consolidated Statement of Operations. The Seller shall also
make
available any comparable interim statements to the extent any such statements
have been prepared by the Seller (and are available upon request to members
or
stockholders of the Seller or the public at large). The Seller, if it has not
already done so, agrees to furnish promptly to the Purchaser, upon request,
copies of the statements specified above. The Seller shall also make available
information on its servicing performance with respect to loans serviced for
others, including delinquency ratios.
The
Seller also agrees to allow reasonable access to a knowledgeable financial
or
accounting officer for the purpose of answering questions asked by any
prospective purchaser regarding recent developments affecting the Seller or
the
financial statements of the Seller.
SECTION
19. Notices.
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if mailed, by registered or certified mail,
postage prepaid, and return receipt requested, or, if by other means, when
received by the other party at the address as follows:
(i) if
to the
Seller:
Countrywide
Home Loans, Inc.
▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇ ▇▇▇▇▇▇▇
(ii) if
to the
Purchaser:
Greenwich
Capital Financial Products, Inc.
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
Mortgage Finance; Structured Transactions
-16-
or
such
other address as may hereafter be furnished to the other party by like notice.
Any such demand, notice or communication hereunder shall be deemed to have
been
received on the date delivered to or received at the premises of the addressee
(as evidenced, in the case of registered or certified mail, by the date noted
on
the return receipt).
SECTION
20. Severability
Clause.
Any
part,
provision, representation or warranty of this Agreement which is prohibited
or
which is held to be void or unenforceable shall be ineffective to the extent
of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation or warranty of this
Agreement which is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall be ineffective, as to such jurisdiction,
to the extent of such prohibition or unenforceability without invalidating
the
remaining provisions hereof, and any such prohibition or unenforceability in
any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof. If the invalidity of
any
part, provision, representation or warranty of this Agreement shall deprive
any
party of the economic benefit intended to be conferred by this Agreement, the
parties shall negotiate, in good-faith, to develop a structure the economic
effect of which is nearly as possible the same as the economic effect of this
Agreement without regard to such invalidity.
SECTION
21. 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
22. Governing
Law.
The
Agreement shall be construed in accordance with the laws of the State of
California and the obligations, rights and remedies of the parties hereunder
shall be determined in accordance with the laws of the State of California,
except to the extent preempted by Federal law.
SECTION
24. Successors
and Assigns; Assignment of Purchase Agreement.
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 Seller to a third party without
the
consent of the Purchaser. The Purchaser may, subject to the terms of this
Agreement, sell and transfer one or more of the Mortgage Loans; provided,
however, that the transferee will not be deemed to be the Purchaser hereunder
unless such transferee shall agree in writing to be bound by the terms of this
Agreement and an original counterpart of the document evidencing such agreement
shall have been executed by the Purchaser and the transferee and delivered
to
Countrywide. Notwithstanding the foregoing, no transfer shall be effective
if
such transfer would result in there being more than three (3) “Purchasers”
outstanding hereunder with respect to any Mortgage Loan Package. Any trust
to
which Mortgage Loans may be transferred pursuant to Section 12 hereunder shall
constitute a single Purchaser for the purposes of the preceding
sentence.
-17-
SECTION
25. 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
26. Exhibits.
The
exhibits to this Agreement are hereby incorporated and made a part hereof and
are an integral part of this Agreement.
SECTION
27. General
Interpretive Principles.
For
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires:
(a) the
terms
defined in this Agreement have the meanings assigned to them in this Agreement
and include the plural as well as the singular, and the use of any gender herein
shall be deemed to include the other gender;
(b) accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles;
(c) references
herein to "Articles," "Sections," "Subsections," "Paragraphs," and other
Subdivisions without reference to a document are to designated Articles,
Sections, Subsections, Paragraphs and other subdivisions of this
Agreement;
(d) reference
to a Subsection without further reference to a Section is a reference to such
Subsection as contained in the same Section in which the reference appears,
and
this rule shall also apply to Paragraphs and other subdivisions;
(e) the
words
"herein," "hereof," "hereunder" and other words of similar import refer to
this
Agreement as a whole and not to any particular provision; and
(f) the
term
"include" or "including" shall mean without limitation by reason of
enumeration.
SECTION
28. 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 agree that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
The
Purchaser, upon request of Seller, shall use its best efforts to deliver, or
cause to be delivered, a computer disk containing this Agreement to the Seller
if such disk is readily accessible to the Purchaser or its counsel.
-18-
SECTION
29. Further
Agreements.
The
Seller and the Purchaser each agree to execute and deliver to the other such
reasonable and appropriate additional documents, instruments or agreements
as
may be necessary or appropriate to effectuate the purposes of this
Agreement.
SECTION
31. Recordation
of Assignments of Mortgage.
To
the
extent permitted by applicable law, each of the Assignments of Mortgage is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any
or
all of the Mortgaged Properties are situated, and in any other appropriate
public recording office or elsewhere, such recordation to be effected at the
Purchaser's expense in accordance with Section 10 hereof in the event
recordation is either necessary under applicable law or requested by the
Purchaser at its sole option.
SECTION
32. Recordation
of Agreement.
To
the
extent permitted by applicable law, this Agreement is subject to recordation
in
all appropriate public offices for real property records in all the counties
or
other comparable jurisdictions in which any or all the properties subject to
the
Mortgages are situated, and in any other appropriate public recording office
or
elsewhere, such recordation to be effected by the Seller at the Purchaser's
expense on direction of the Purchaser accompanied by an Opinion of Counsel,
also
prepared at the Purchaser's expense, to the effect that such recordation
materially and beneficially affects the interest of the Purchaser or is
necessary for the administration or servicing of the Mortgage
Loans.
[NO
FURTHER TEXT ON THIS PAGE]
-19-
IN
WITNESS WHEREOF, the Seller and the Purchaser have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of
the
date first above written.
GREENWICH
CAPITAL FINANCIAL
PRODUCTS,
INC.
(Purchaser)
By: _____________________
Name:
Title:
COUNTRYWIDE
HOME LOANS, INC.
(Seller)
By:
______________________
Name:
Title:
-▇▇-
|
▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇▇
|
) |
|
)
ss:
|
|
|
COUNTY
OF FAIRFIELD
|
) |
On
the
____ day of ________, 200_ before me, a notary public in and for said State,
appeared _______________________, personally known to me on the basis of
satisfactory evidence to be a ____________________ of Greenwich Capital
Financial Products, Inc., one of the corporations that executed the within
instrument, and also known to me to be the person who executed it on behalf
of
such corporation and acknowledged to me that such corporation executed the
within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand affixed my official seal the day
and year in this certificate first above written.
________________________________
Notary
Public
[Notarial
Seal]
|
STATE
OF _______________
|
) |
|
)
ss:
|
|
|
COUNTY
OF _____________
|
) |
On
the __
day of _______, 200_ before me, a Notary Public in and for said State,
personally appeared __________, known to me to be ______________ of Countrywide
Home Loans, Inc., the corporation that executed the within instrument and also
known to me to be the person who executed it on behalf of said corporation,
and
acknowledged to me that such corporation executed the within
instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand affixed my office seal the day
and
year in this certificate first above written.
________________________________
Notary
Public
My
Commission expires
EXHIBIT
7
CUSTODIAL
ACCOUNT LETTER AGREEMENT
___________,
200_
To:
________________________________
________________________________
________________________________
the
"Depository")
As
Seller
under the Master Mortgage Loan Purchase and Servicing Agreement, dated as of
April 1, 2003, we hereby authorize and request you to establish an account,
as a
Custodial Account, to be designated as "Countrywide Home Loans, Inc. in trust
for the Purchaser." All deposits in the account shall be subject to withdrawal
therefrom by order signed by the Seller. You may refuse any deposit which would
result in violation of the requirement that the account be fully insured as
described below. This letter is submitted to you in duplicate. Please execute
and return one original to us.
COUNTRYWIDE
HOME LOANS, INC.
By:
__________________________________
Name:
Title:
Date:
The
undersigned, as Depository, hereby certifies that the above-described account
has been established under Account Number ___________________ at the office
of
the Depository indicated above, and agrees to honor withdrawals on such account
as provided above. The full amount deposited at any time in the account will
be
insured by the Federal Deposit Insurance Corporation through the Bank Insurance
Fund ("BIF") or the Savings Association Insurance Fund ("SAIF").
____________________________
Depository
By:
_____________________________
Name:
Title:
Date:
EXHIBIT
8
ESCROW
ACCOUNT LETTER AGREEMENT
___________,
200_
To:
________________________________
________________________________
________________________________
the
"Depository")
As
Seller
under the Master Mortgage Loan Purchase and Servicing Agreement, dated as of
April 1, 2003, we hereby authorize and request you to establish an account,
as
an Escrow Account, to be designated as "Countrywide Home Loans, Inc. in trust
for the Purchaser and various Mortgagors." All deposits in the account shall
be
subject to withdrawal therefrom by order signed by the Seller. You may refuse
any deposit which would result in violation of the requirement that the account
be fully insured as described below. This letter is submitted to you in
duplicate. Please execute and return one original to us.
COUNTRYWIDE
HOME LOANS, INC.
By:
___________________________
Name:
Title:
Date:
The
undersigned, as Depository, hereby certifies that the above-described account
has been established under Account Number _______________ at the office of
the
Depository indicated above, and agrees to honor withdrawals on such account
as
provided above. The full amount deposited at any time in the account will be
insured by the Federal Deposit Insurance Corporation through the Bank Insurance
Fund ("BIF") or the Savings Association Insurance Fund ("SAIF").
________________________________
Depository
By:
__________________________________
Name:
Title:
Date:
EXHIBIT
9
SERVICING
ADDENDUM
Section
11.01 Seller
to Act as Servicer.
The
Seller, as independent contract servicer, shall service and administer the
Mortgage Loans in accordance with this Agreement and the normal and usual
standards of practice of prudent mortgage lenders, and shall have full power
and
authority, acting alone, to do or cause to be done any and all things in
connection with such servicing and administration which the Seller may deem
necessary or desirable and consistent with the terms of this
Agreement.
Consistent
with the terms of this Agreement, the Seller may waive, modify or vary any
term
of any Mortgage Loan or consent to the postponement of strict compliance with
any such term or in any manner grant indulgence to any Mortgagor if in the
Seller's reasonable and prudent determination such waiver, modification,
postponement or indulgence is not materially adverse to the Purchaser; provided,
however, that the Seller shall not permit any modification with respect to
any
Mortgage Loan that would decrease the Mortgage Interest Rate (other than by
adjustments required by the terms of the Mortgage Note), defer or forgive the
payment thereof or of any principal or interest payments, reduce the outstanding
principal amount (except for actual payments of principal), make future advances
or extend the final maturity date on such Mortgage Loan without the Purchaser's
consent. The Seller may permit forbearance or allow for suspension of Monthly
Payments in either case for up to one hundred and eighty (180) days if the
Mortgagor is in default or the Seller determines in its reasonable discretion
that default is imminent and if the Seller determines that granting such
forbearance or suspension is in the best interest of the Purchaser. In the
event
that any such modification, forbearance or suspension as permitted above allows
the deferral of interest or principal payments on any Mortgage Loan, the Seller
shall include in each remittance for any month in which any such principal
or
interest payment has been deferred (without giving effect to such modification,
forbearance or suspension) an amount equal to, as the case may be, such month's
principal and one (1) month's interest at the Mortgage Loan Remittance Rate
on
the then unpaid principal balance of the Mortgage Loan and shall be entitled to
reimbursement for such advances only to the same extent as for Monthly Advances
made pursuant to Section 11.19. Without limiting the generality of the
foregoing, the Seller shall continue, and is hereby authorized and empowered
to
execute and deliver on behalf of itself, and the Purchaser, all instruments
of
satisfaction or cancellation, or of partial or full release, discharge and
all
other comparable instruments, with respect to the Mortgage Loans and with
respect to the Mortgaged Property. If reasonably required by the Seller, the
Purchaser shall furnish the Seller with any powers of attorney and other
documents necessary or appropriate to enable the Seller to carry out its
servicing and administrative duties under this Agreement.
In
servicing and administering the Mortgage Loans, the Seller shall employ
procedures including collection procedures and exercise the same care that
it
customarily employs and exercises in servicing and administering mortgage loans
for its own account giving due consideration to accepted mortgage servicing
practices of prudent lending institutions and the Purchaser's reliance on the
Seller.
Section
11.02 Collection
of Mortgage Loan Payments.
Continuously
from the date hereof until the principal and interest on all Mortgage Loans
is
paid in full, the Seller will proceed diligently to collect all payments due
under each Mortgage Loan when the same shall become due and payable and shall,
to the extent such procedures shall be consistent with this Agreement and the
terms and provisions of any related Primary Mortgage Insurance Policy, follow
such collection procedures as it follows with respect to mortgage loans
comparable to the Mortgage Loans and held for its own account. Further, the
Seller will take special care in ascertaining and estimating annual ground
rents, taxes, assessments, water rates, fire and hazard insurance premiums,
mortgage insurance premiums, and all other charges that, as provided in the
Mortgage, will become due and payable. To that end, the Seller shall ensure
that
the installments payable by the Mortgagors will be sufficient to pay such
charges as and when they become due and payable.
Section
11.03 Realization
Upon Defaulted Mortgage Loans.
The
Seller shall use its best efforts, consistent with the procedures that the
Seller would use in servicing loans for its own account, to foreclose upon
or
otherwise comparably convert the ownership of properties securing such of the
Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments
pursuant to Section 11.01. The Seller shall use its best efforts to realize
upon
defaulted Mortgage Loans in such manner as will maximize the receipt of
principal and interest by the Purchaser, taking into account, among other
things, the timing of foreclosure proceedings. The foregoing is subject to
the
provisions that, in any case in which Mortgaged Property shall have suffered
damage, the Seller shall not be required to expend its own funds toward the
restoration of such property in excess of $2,000 unless it shall determine
in
its discretion (i) that such restoration will increase the proceeds of
liquidation of the related Mortgage Loan to the Purchaser after reimbursement
to
itself for such expenses, and (ii) that such expenses will be recoverable by
the
Seller through Primary Mortgage Insurance Proceeds, Other Insurance Proceeds
or
Liquidation Proceeds from the related Mortgaged Property, as contemplated in
Section 11.05. The Seller shall notify the Purchaser in writing of the
commencement of foreclosure proceedings. Such notice may be contained in the
reports prepared by the Seller and delivered to Purchaser pursuant to the terms
and conditions of this Agreement. In such connection, the Seller shall be
responsible for all costs and expenses incurred by it in any such proceedings;
provided, however, that it shall be entitled to reimbursement thereof from
the
related property, as contemplated in Section 11.05.
The
Seller, in its sole discretion, shall have the right to purchase for its own
account any Mortgage Loan which is ninety-one (91) days or more delinquent
at
the Repurchase Price; provided, however that the Seller shall not be entitled
to
exercise such purchase if the delinquency is caused directly or indirectly
by an
act or omission of the Seller which would constitute a breach or violation
of
its obligations hereunder. Any such purchase by the Seller shall be accomplished
by deposit in the Custodial Account the amount of the purchase price stated
in
the preceding sentence, after deducting therefrom any amounts received in
respect of such purchased Mortgage Loan and being held in the Custodial Account
for future distribution.
Section
11.04 Establishment
of Custodial Accounts; Deposits in Custodial Accounts.
The
Seller shall segregate and hold all funds collected and received pursuant to
each Mortgage Loan separate and apart from any of its own funds and general
assets and shall establish and maintain one (1) or more Custodial Accounts,
in
the form of time deposit or demand accounts which accounts shall be Eligible
Accounts. The creation of any Custodial Account shall be evidenced by a letter
agreement in the form shown in Exhibit
7
to this
Agreement. A copy of such letter agreement shall be furnished to the Purchaser
upon request.
The
Seller shall deposit in the Custodial Account within two (2) Business Days
of
receipt, and retain therein the following payments and collections received
or
made by it subsequent to the Cut-off Date, or received by it prior to the
Cut-off Date but allocable to a period subsequent thereto, other than in respect
of principal and interest on the Mortgage Loans due on or before the Cut-off
Date:
(i) all
payments on account of principal, including Principal Prepayments, on the
Mortgage Loans;
(ii) all
payments on account of interest on the Mortgage Loans adjusted to the Mortgage
Loan Remittance Rate;
(iii) all
proceeds from a Cash Liquidation;
(iv) all
Primary Mortgage Insurance Proceeds and Other Insurance Proceeds including
amounts required to be deposited pursuant to Sections 11.08, 11.10 and 11.11,
other than proceeds to be held in the Escrow Account and applied to the
restoration or repair of the Mortgaged Property or released to the Mortgagor
in
accordance with the Seller's normal servicing procedures, the loan documents
or
applicable law;
(v) all
Condemnation Proceeds affecting any Mortgaged Property which are not released
to
the Mortgagor in accordance with the Seller's normal servicing procedures,
the
Mortgage Loan Documents or applicable law;
(vi) any
Monthly Advances;
(vii) all
proceeds of any Mortgage Loan repurchased in accordance with Sections 7.03
and
11.03, and any amount required to be deposited by the Seller in connection
with
any shortfall in principal amount of the Qualified Substitute Mortgage Loans
and
the Deleted Mortgage Loans as required pursuant to Section 7.03;
(viii) any
amounts required to be deposited by the Seller pursuant to Section 11.10 in
connection with the deductible clause in any blanket hazard insurance policy
such deposit shall be made from the Seller's own funds, without reimbursement
therefor;
(ix) the
Prepayment Interest Shortfall Amount, if any, for the month of distribution,
such deposit shall be made from the Seller's own funds, without reimbursement
therefor up to a maximum amount per month of the Servicing Fee actually received
for such month for the Mortgage Loans;
(x) any
amounts required to be deposited by the Seller in connection with any REO
Property pursuant to Section 11.13; and
(xi) any
amounts required to be deposited in the Custodial Account pursuant to Section
11.01, 11.14, 11.22 or 11.23.
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, prepayment penalties
(except as otherwise set forth in a Purchase Price and Terms Letter) with
respect to any Mortgage Loan Package, and assumption fees, to the extent
permitted by Section 6.01, need not be deposited by the Seller in the Custodial
Account. Any interest paid on funds deposited in the Custodial Account by the
depository institution shall accrue to the benefit of the Seller and the Seller
shall be entitled to retain and withdraw such interest from the Custodial
Account pursuant to Section 11.05(iv).
If
the
balance on deposit in the Custodial Account were to exceeds the insured amount
limits of an FDIC insured account as of the commencement of business on any
Business Day and the Custodial Account constitutes an Eligible Account solely
pursuant to clause (ii) of the definition of Eligible Account, the Seller shall,
on or before twelve o’clock noon Eastern time on such Business Day, withdraw
from the related Custodial Account all amounts in excess of the FDIC insurance
limits and deposit such amounts in another account that constitutes an Eligible
Account pursuant to clause (i) or (ii) of the definition of Eligible
Account.
Section
11.05 Permitted
Withdrawals From the Custodial Account.
The
Seller may, from time to time, withdraw from the Custodial Account for the
following purposes:
(i) to
make
payments to the Purchaser in the amounts and in the manner provided for in
Section 11.17;
(ii) to
reimburse itself for Monthly Advances, the Seller's right to reimburse itself
pursuant to this subclause (ii) being limited to amounts received on the related
Mortgage Loan (or to amounts received on the Mortgage Loans as a whole in the
event that said Monthly Advance is made due to a shortfall in a Monthly Payment
made by a Mortgagor entitled to relief under the Soldiers' and Sailors' Civil
Relief Act of 1940) which represent Late Collections (net of the related
Servicing Fees) respecting which any such advance was made it being understood
that, in the case of such reimbursement, the Seller's right thereto shall be
prior to the rights of the Purchaser, except that, where the Seller is required
to repurchase a Mortgage Loan, pursuant to Section 7.03, the Seller's right
to
such reimbursement shall be subsequent to the payment to the Purchaser of the
Repurchase Price pursuant to such section and all other amounts required to
be
paid to the Purchaser with respect to such Mortgage Loans; provided that the
Seller may reimburse itself from any funds in the Custodial Account for Monthly
Advances which it has determined are nonrecoverable advances or if all funds
with respect to the related Mortgage Loan have previously been remitted to
the
Purchaser;
(iii) to
reimburse itself for unreimbursed Servicing Advances and any unpaid Servicing
Fees, the Seller's right to reimburse itself pursuant to this subclause (iii)
with respect to any Mortgage Loan being limited to related proceeds (or to
amounts received on the Mortgage Loans only in the event that said Monthly
Advance is made due to a shortfall in a Monthly Payment made by a Mortgagor
entitled to relief under the Soldiers' and Sailors' Civil Relief Act of 1940)
from Cash Liquidation, Liquidation Proceeds, Condemnation Proceeds, Primary
Mortgage Insurance Proceeds and Other Insurance Proceeds; provided that the
Seller may reimburse itself from any funds in the Custodial Account for
Servicing Advances and Servicing Fees if all funds with respect to the related
Mortgage Loan have previously been remitted to the Purchaser;
(iv) to
pay to
itself as servicing compensation (a) any interest earned on funds in the
Custodial Account (all such interest to be withdrawn monthly not later than
each
Remittance Date), and (b) the Servicing Fees from that portion of any payment
or
recovery as to interest with respect to a particular Mortgage Loan;
(v) to
pay to
itself with respect to each Mortgage Loan that has been repurchased pursuant
to
Section 7.03 all amounts received thereon and not distributed as of the date
on
which the related repurchase price is determined;
(vi) to
clear
and terminate the Custodial Account upon the termination of this Agreement;
(vii) to
reimburse the Seller for any Monthly Advance previously made which the Seller
has determined to be a nonrecoverable Monthly Advance; and
(viii) to
reimburse itself for any amounts deposited in the Custodial Account in
error.
Section
11.06 Establishment
of Escrow Accounts; Deposits in Escrow Accounts.
The
Seller shall segregate and hold all funds collected and received pursuant to
each Mortgage Loan which constitute Escrow Payments separate and apart from
any
of its own funds and general assets and shall establish and maintain one (1)
or
more Escrow Accounts which accounts shall be Eligible Accounts, in the form
of
time deposit or demand accounts. The creation of any Escrow Account shall be
evidenced by a letter agreement in the form shown in Exhibit
8
to this
Agreement. A copy of such letter agreement shall be furnished to the Purchaser
upon request.
The
Seller shall deposit in the Escrow Account or Accounts within two (2) Business
Days of receipt, and retain therein, (i) all Escrow Payments collected on
account of the Mortgage Loans, for the purpose of effecting timely payment
of
any such items as required under the terms of this Agreement, and (ii) all
Other
Insurance Proceeds which are to be applied to the restoration or repair of
any
Mortgaged Property. The Seller shall make withdrawals therefrom only to effect
such payments as are required under this Agreement, and for such other purposes
as shall be as set forth or in accordance with Section 11.08. The Seller shall
be entitled to retain any interest paid on funds deposited in the Escrow Account
by the depository institution other than interest on escrowed funds required
by
law to be paid to the Mortgagor and, to the extent required by law, the Seller
shall pay interest on escrowed funds to the Mortgagor notwithstanding that
the
Escrow Account is non-interest bearing or that interest paid thereon is
insufficient for such purposes.
Section
11.07 Permitted
Withdrawals From Escrow Account.
Withdrawals
from the Escrow Account may be made by the Seller (i) to effect timely payments
of ground rents, taxes, assessments, water rates, mortgage insurance premiums,
Primary Mortgage Insurance Policy premiums, if applicable, and comparable items
(ii) to reimburse the Seller for any Servicing Advance made by the Seller with
respect to a related Mortgage Loan but only from amounts received on the related
Mortgage Loan which represent late payments or collections of Escrow Payments
thereunder, (iii) to refund to the Mortgagor any funds as may be determined
to
be overages, (iv) for transfer to the Custodial Account in accordance with
the
terms of this Agreement, (v) for application to restoration or repair of the
Mortgaged Property, (vi) to pay to the Seller, or to the Mortgagors to the
extent required by law, any interest paid on the funds deposited in the Escrow
Account, (vii) to reimburse itself for any amounts deposited in the Escrow
Account in error, or (viii) to clear and terminate the Escrow Account on the
termination of this Agreement. As part of its servicing duties, the Seller
shall
pay to the Mortgagors interest on funds in the Escrow Account, to the extent
required by law, and to the extent that interest earned on funds in the Escrow
Account is insufficient, shall pay such interest from its own funds, without
any
reimbursement therefor.
Section
11.08 Payment
of Taxes, Insurance and Other Charges; Maintenance of Primary Mortgage Insurance
Policies; Collections Thereunder.
With
respect to each Mortgage Loan, the Seller shall maintain accurate records
reflecting the status of ground rents, taxes, assessments, water rates and
other
charges which are or may become a lien upon the Mortgaged Property and the
status of primary mortgage insurance premiums and fire and hazard insurance
coverage and shall obtain, from time to time, all bills for the payment of
such
charges, including renewal premiums and shall effect payment thereof prior
to
the applicable penalty or termination date and at a time appropriate for
securing maximum discounts allowable, employing for such purpose deposits of
the
Mortgagor in the Escrow Account which shall have been estimated and accumulated
by the Seller in amounts sufficient for such purposes, as allowed under the
terms of the Mortgage or applicable law. To the extent that the Mortgage does
not provide for Escrow Payments, the Seller shall determine that any such
payments are made by the Mortgagor at the time they first become due. The Seller
assumes full responsibility for the timely payment of all such bills and shall
effect timely payments of all such bills irrespective of the Mortgagor's
faithful performance in the payment of same or the making of the Escrow Payments
and shall make advances from its own funds to effect such payments.
The
Seller will maintain in full force and effect, a Primary Mortgage Insurance
Policy conforming in all respects to the description set forth in Section
7.02(xxxi), issued by an insurer described in that Section, with respect to
each
Mortgage Loan for which such coverage is herein required. Such coverage will
be
maintained until the Updated Loan-to-Value Ratio of the related Mortgage Loan
is
reduced to that amount for which FNMA no longer requires such insurance to
be
maintained, unless state law provides that the Mortgagor may elect to cancel.
The Seller will not cancel or refuse to renew any Primary Mortgage Insurance
Policy in effect on the Closing Date that is required to be kept in force under
this Agreement unless a replacement Primary Mortgage Insurance Policy for such
canceled or nonrenewed policy is obtained from and maintained with an insurer
that is FNMA or FHLMC approved. The Seller shall not take any action which
would
result in non-coverage under any applicable Primary Mortgage Insurance Policy
of
any loss which, but for the actions of the Seller would have been covered
thereunder. In connection with any assumption or substitution agreement entered
into or to be entered into pursuant to Section 11.22, the Seller shall promptly
notify the insurer under the related Primary Mortgage Insurance Policy, if
any,
of such assumption or substitution of liability in accordance with the terms
of
such policy and shall take all actions which may be required by such insurer
as
a condition to the continuation of coverage under the Primary Mortgage Insurance
Policy. If such Primary Mortgage Insurance Policy is terminated as a result
of
such assumption or substitution of liability, the Seller shall obtain a
replacement Primary Mortgage Insurance Policy as provided above.
Section
11.09 Transfer
of Accounts.
The
Seller may transfer the Custodial Account or the Escrow Account to a different
depository institution from time to time. The Seller shall promptly notify
the
Purchaser that such transfer has been made. In any case, the Custodial Account
and Escrow Account shall be Eligible Accounts.
Section
11.10 Maintenance
of Hazard Insurance.
The
Seller shall cause to be maintained for each Mortgage Loan fire and hazard
insurance with extended coverage as is customary in the area where the Mortgaged
Property is located in an amount which is equal to the lesser of (i) the maximum
insurable value of the improvements securing such Mortgage Loan or (ii) the
greater of (a) the unpaid principal balance of the Mortgage Loan, and (b) the
percentage such that the proceeds thereof shall be sufficient to prevent the
Mortgagor and/or the Mortgagee from becoming a co-insurer. If the Mortgaged
Property is in an area identified on a Flood Hazard Boundary Map or Flood
Insurance Rate issued by the Flood Emergency Management Agency as having special
flood hazards and such flood insurance has been made available, the Seller
will
cause to be maintained a flood insurance policy meeting the requirements of
the
current guidelines of the Federal Insurance Administration with a generally
acceptable insurance carrier, in an amount representing coverage not less than
the least of (i) the unpaid principal balance of the Mortgage Loan, (ii) the
maximum insurable value of the improvements securing such Mortgage Loan or
(iii)
the maximum amount of insurance which is available under the Flood Disaster
Protection Act of 1973, as amended. The Seller shall also maintain on the REO
Property, fire and hazard insurance with extended coverage in an amount which
is
at least equal to the maximum insurable value of the improvements which are
a
part of such property, liability insurance and, to the extent required and
available under the Flood Disaster Protection Act of 1973, as amended, flood
insurance in an amount as provided above. Any amounts collected by the Seller
under any such policies other than amounts to be deposited in the Escrow Account
and applied to the restoration or repair of the Mortgaged Property or REO
Property, or released to the Mortgagor in accordance with the Seller's normal
servicing procedures, shall be deposited in the Custodial Account, subject
to
withdrawal pursuant to Section 11.05. It is understood and agreed that no
earthquake or other additional insurance need be required by the Seller or
the
Mortgagor or maintained on property acquired in respect of the Mortgage Loan,
other than pursuant to such applicable laws and regulations as shall at any
time
be in force and as shall require such additional insurance. All such policies
shall be endorsed with standard mortgagee clauses with loss payable to the
Seller and shall provide for at least thirty days prior written notice of any
cancellation, reduction in the amount or material change in coverage to the
Seller. The Seller shall not interfere with the Mortgagor's freedom of choice
in
selecting either his insurance carrier or agent, provided, however, that the
Seller shall not accept any such insurance policies from insurance companies
unless such companies currently reflect a General Policy Rating of B:VI or
better in Best's Key Rating Guide and are licensed to do business in the state
wherein the property subject to the policy is located.
Section
11.11 Maintenance
of Mortgage Impairment Insurance Policy.
In
the
event that the Seller shall obtain and maintain a blanket policy issued by
an
issuer that has a Best rating of A+:XV insuring against hazard losses on all
of
the Mortgage Loans, then, to the extent such policy provides coverage in an
amount equal to the amount required pursuant to Section 11.10 and otherwise
complies with all other requirements of Section 11.10, it shall conclusively
be
deemed to have satisfied its obligations as set forth in Section 11.10, it
being
understood and agreed that such policy may contain a deductible clause, in
which
case the Seller shall, in the event that there shall not have been maintained
on
the related Mortgaged Property or REO Property a policy complying with Section
11.10, and there shall have been a loss which would have been covered by such
policy, deposit in the Custodial Account the amount not otherwise payable under
the blanket policy because of such deductible clause. In connection with its
activities as servicer of the Mortgage Loans, the Seller agrees to prepare
and
present, on behalf of the Purchaser, claims under any such blanket policy in
a
timely fashion in accordance with the terms of such policy. Upon request of
the
Purchaser, the Seller shall cause to be delivered to the Purchaser a certified
true copy of such policy and shall use its best efforts to obtain a statement
from the insurer thereunder that such policy shall in no event be terminated
or
materially modified without thirty (30) days' prior written notice to the
Purchaser.
Section
11.12 Fidelity
Bond; Errors and Omissions Insurance.
The
Seller shall maintain, at its own expense, a blanket Fidelity Bond and an errors
and omissions insurance policy, with broad coverage with responsible companies
on all officers, employees or other persons acting in any capacity with regard
to the Mortgage Loan in handling funds, money, documents and papers relating
to
the Mortgage Loan. The Fidelity Bond and errors and omissions insurance shall
be
in the form of the Mortgage Banker's Blanket Bond and shall protect and insure
the Seller against losses, including forgery, theft, embezzlement, fraud, errors
and omissions and negligent acts of such persons. Such Fidelity Bond shall
also
protect and insure the Seller against losses in connection with the failure
to
maintain any insurance policies required pursuant to this Agreement and the
release or satisfaction of a Mortgage Loan without having obtained payment
in
full of the indebtedness secured thereby. No provision of this Section 11.12
requiring the Fidelity Bond and errors and omissions insurance shall diminish
or
relieve the Seller from its duties and obligations as set forth in this
Agreement. The minimum coverage under any such Fidelity Bond and insurance
policy shall be at least equal to the corresponding amounts required by FNMA
in
the FNMA Selling Guide or by FHLMC in the FHLMC Sellers' and Servicers' Guide.
Upon request of the Purchaser, the Seller shall cause to be delivered to the
Purchaser a certified true copy of the Fidelity Bond and insurance policy and
shall use its best efforts to obtain a statement from the surety and the insurer
that such Fidelity Bond or insurance policy shall in no event be terminated
or
materially modified without thirty (30) days' prior written notice to the
Purchaser. The Seller shall notify the Purchaser within five (5) business days
of receipt of notice that such Fidelity Bond or insurance policy will be, or
has
been, materially modified or terminated.
Section
11.13 Title,
Management and Disposition of REO Property.
In
the
event that title to the Mortgaged Property is acquired in foreclosure or by
deed
in lieu of foreclosure, the deed or certificate of sale shall be taken in the
name of the Seller for the benefit of the Purchaser, or in the event the Seller
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 Seller from an attorney
duly licensed to practice law in the state where to REO Property is located.
Any
Person or Persons holding such title other than the Purchaser shall acknowledge
in writing that such title is being held as nominee for the benefit of the
Purchaser.
The
Seller shall either itself or through an agent selected by the Seller, manage,
conserve, protect and operate each REO Property in the same manner that it
manages, conserves, protects and operates other foreclosed property for its
own
account, and in the same manner that similar property in the same locality
as
the REO Property is managed. The Seller shall cause each REO Property to be
inspected promptly upon the acquisition of title thereto and shall cause each
REO Property to be inspected at least annually thereafter or more frequently
as
required by the circumstances. The Seller shall make or cause to be made a
written report of each such inspection. Such reports shall be retained in the
Servicing File and copies thereof shall be forwarded by the Seller to the
Purchaser within five (5) Business Days of the Purchaser's request therefor.
The
Seller shall attempt to sell the same (and may temporarily rent the same) on
such terms and conditions as the Seller deems to be in the best interest of
the
Purchaser. With respect to each REO Property, the Seller shall segregate and
hold all funds collected and received in connection with the operation of the
REO Property separate and apart from its own funds or general assets and shall
establish and maintain a Custodial Account for the REO Properties in the form
of
a non-interest bearing demand account which shall be an Eligible Account, unless
an Opinion of Counsel is obtained by the Seller to the effect that the
classification as a grantor trust for federal income tax purposes of the
arrangement under which the Mortgage Loans and the REO Properties is held will
not be adversely affected by holding such funds in another manner. The Seller
shall deposit or cause to be deposited, on a daily basis in the Custodial
Account all revenues received with respect to the REO Properties and shall
withdraw therefrom funds necessary for the proper operation, management and
maintenance of the REO Properties, including (i) the cost of maintaining any
hazard insurance pursuant to Section 11.10 hereof and (ii) either (A) the fees
of any managing agent acting on behalf of the Seller or (B)
in the
event that the Seller is managing the REO Property, then the related Servicing
Fee. The Seller shall not be entitled to retain interest paid or other earnings,
if any, on funds deposited in the Custodial Account. On or before each
Determination Date, the Seller shall withdraw from the Custodial Account and
deposit into the Custodial Account the net income from the REO Properties on
deposit in the Custodial Account.
The
Seller shall furnish to the Purchaser on each Remittance Date, an operating
statement for each REO Property covering the operation of each REO Property
for
the previous month. Such operation statement shall be accompanied by such other
information as the Purchaser shall reasonably request.
The
Seller shall use its best efforts to dispose of the REO Property as soon as
possible and shall sell such REO Property in any event within one (1) year
after
title to such REO Property has been obtained, unless the Seller determines,
and
gives an appropriate notice to the Purchaser, that a longer period is necessary
for the orderly liquidation of such REO Property. If a period longer than one
(1) year is permitted under this Agreement and is necessary to sell any REO
Property, the Seller shall report monthly to the Purchaser as to the progress
being made in selling such REO Property.
Each
REO
Disposition shall be carried out by the Seller at such price and upon such
terms
and conditions as the Seller deems to be in the best interest of the Purchaser.
If as of the date title to any REO Property was acquired by the Seller there
were outstanding unreimbursed Servicing Advances, Monthly Advances or Servicing
Fees with respect to the REO Property or the related Mortgage Loan, the Seller,
upon an REO Disposition of such REO Property, shall be entitled to reimbursement
for any related unreimbursed Servicing Advances, Monthly Advances and Servicing
Fees from proceeds received in connection with such REO Disposition. The
proceeds from the REO Disposition, net of any payment to the Seller as provided
above, shall be deposited in the Custodial Account and shall be transferred
to
the Custodial Account on the Determination Date in the month following receipt
thereof for distribution on the succeeding Remittance Date in accordance with
Section 11.17.
With
respect to each REO Property, the Seller shall segregate and hold all funds
collected and received in connection with the operation of the REO Property
separate and apart from its own funds or general assets and shall maintain
separate records and reports with respect to the funds received and distributed
on an REO Property by REO Property basis.
Section
11.14 Notification
of Adjustments.
With
respect to each Mortgage Loan, the Seller shall adjust the Mortgage Interest
Rate on the related Interest Adjustment Date and shall adjust the Monthly
Payment on the related Payment Adjustment Date in compliance with the
requirements of applicable law and the related Mortgage and Mortgage Note.
If,
pursuant to the terms of the Mortgage Note, another index is selected for
determining the Mortgage Interest Rate because the original Index is no longer
available, such selection shall be in compliance with the terms of the related
Mortgage Note. The 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. The Seller shall promptly upon written request thereof, 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 the Seller, or the Purchaser that the Seller
has failed to adjust a Mortgage Interest Rate or a Monthly Payment pursuant
to
the terms of the related Mortgage Note and Mortgage, the Seller shall
immediately deposit in the Custodial Account from its own funds the amount
of
any interest loss caused the Purchaser thereby without reimbursement
therefor.
Section
11.15 MERS
Registration.
The
Seller is authorized and empowered by the Purchaser, in its own name, when
the
Seller believes it appropriate in its best judgement to register any Mortgage
Loan on the MERS System, or cause the removal from the registration of any
Mortgage Loan on the MERS System, to execute and deliver, on behalf of the
Purchaser any and all instruments of assignment and other comparable instruments
with respect to such assignment or re-recording of a Mortgage in the name of
MERS, solely as nominee for the Purchaser and its successors and
assigns.
Section
11.17 Distributions.
On
each
Remittance Date, the Seller shall distribute to the Purchaser (i) all amounts
credited to the Custodial Account as of the close of business on the preceding
Determination Date, net of charges against or withdrawals from the Custodial
Account pursuant to Section 11.05, plus (ii) all Monthly Advances, if any,
which
the Seller is obligated to distribute pursuant to Section 11.19, minus (iii)
any
amounts attributable to Principal Prepayments received after the Principal
Prepayment Period, and (iv) any amounts attributable to Monthly Payments
collected but due on a Due Date or Dates subsequent to the preceding
Determination Date. It is understood that, by operation of Section 11.04, the
remittance on the initial Remittance Date is to include principal collected
after the Cut-off Date through the preceding Determination Date plus interest,
adjusted to the Mortgage Loan Remittance Rate collected through such
Determination Date exclusive of any portion thereof allocable to the period
prior to the Cut-off Date, with the adjustments specified in (ii), (iii) and
(iv) above.
With
respect to any remittance received by the Purchaser after the second Business
Day following the Business Day on which such payment was due, the Seller shall
pay to the Purchaser interest on any such late payment at an annual rate equal
to the rate of interest as is publicly announced from time to time at its
principal office by JPMorgan Chase, New York, New York, as its prime lending
rate, adjusted as of the date of each change, plus one percentage point, but
in
no event greater than the maximum amount permitted by applicable law. Such
interest shall be paid by the Seller to the Purchaser on the date such late
payment is made and shall cover the period commencing with the day following
such second Business Day and ending with the Business Day on which such payment
is made, both inclusive. Such interest shall be remitted along with such late
payment. The payment by the Seller of any such interest shall not be deemed
an
extension of time for payment or a waiver of any Event of Default by the
Seller.
Section
11.18 Statements
to the Purchaser.
Not
later
than each Remittance Date, the Seller will furnish to the Purchaser by any
electronic medium the information shown in Exhibit
11,
provided that such information shall be in a form useful to the
Purchaser.
In
addition, not more than sixty (60) days after the end of each calendar year,
the
Seller will furnish to the Purchaser at any time during such calendar year,
(i)
as to the aggregate of remittances for the applicable portion of such year,
an
annual statement in accordance with the requirements of applicable federal
income tax law, and (ii) listing of the principal balances of the Mortgage
Loans
outstanding at the end of such calendar year.
The
Seller 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 Seller shall
provide the Purchaser with such information concerning the Mortgage Loans as
is
necessary for the Purchaser to prepare its federal income tax return as the
Purchaser may reasonably request from time to time.
Section
11.19 Monthly
Advances by the Seller.
Not
later
than the close of business on the Business Day preceding each Remittance Date,
the Seller shall deposit in the Custodial Account an amount equal to all
payments not previously advanced by the Seller, whether or not deferred pursuant
to Section 11.01, of principal (due after the Cut-off Date) and interest not
allocable to the period prior to the Cut-off Date, adjusted to the Mortgage
Loan
Remittance Rate, which were due on a Mortgage Loan and delinquent at the close
of business on the related Determination Date.
The
Seller's obligation to make such advances as to any Mortgage Loan will continue
through the earliest of: (i) the last Monthly Payment due prior to the payment
in full of the Mortgage Loan, (ii) the Remittance Date prior to the Remittance
Date for the distribution of any Liquidation Proceeds, Other Insurance Proceeds
or Condemnation Proceeds which, in the case of Other Insurance Proceeds and
Condemnation Proceeds, satisfy in full the indebtedness of such Mortgage Loan,
and (iii) the Remittance Date prior to the date the Mortgage Loan is converted
to REO Property, provided, however, that if requested by a Rating Agency
(hereinafter defined) in connection with a Pass-Through Transfer, the Seller
shall be obligated to make such advances through the Remittance Date prior
to
the date on which cash is received in connection with the liquidation of REO
Property. In no event shall the Seller be obligated to make an advance under
this Section 11.19 if at the time of such advance it deems such advance to
be
nonrecoverable. If the Seller determines that an advance is nonrecoverable,
the
Seller shall deliver to the Purchaser an Officer's Certificate of the Seller
to
the effect that an officer of the Seller has reviewed the related Mortgage
File
and has made the reasonable determination that any previous and any additional
advances are nonrecoverable. For the purposes of this paragraph, "Rating Agency"
shall mean ▇▇▇▇▇'▇ Investors Service, Inc., Standard & Poor's Ratings Group,
Fitch Investors Services, Inc. or any other statistical credit rating
agency.
Section
11.20 Real
Estate Owned Reports.
Together
with the statement furnished pursuant to Section 11.18, with respect to any
REO
Property, the Seller shall furnish to the Purchaser on request a statement
covering the Seller's efforts in connection with the sale of such REO Property
and any rental of such REO Property incidental to the sale thereof for the
previous month, together with an operating statement free of cost. Such
statement shall be accompanied by such additional information as the Purchaser
shall reasonably request. The cost of producing such additional information
shall be borne by the Purchaser requesting it.
Section
11.21 Liquidation
Reports.
Upon
the
foreclosure sale of any Mortgaged Property or the acquisition thereof by the
Purchaser pursuant to a deed-in-lieu of foreclosure, the Seller shall submit
to
the Purchaser a liquidation report with respect to such Mortgaged Property
which
report may be included with any other reports prepared by Seller and delivered
to Purchaser pursuant to the terms and conditions of this Agreement.
Section
11.22 Assumption
Agreements.
The
Seller will, to the extent it has knowledge of any conveyance or prospective
conveyance by any Mortgagor of the Mortgaged Property (whether by absolute
conveyance or by contract of sale, and whether or not the Mortgagor remains
or
is to remain liable under the Mortgage Note and/or the Mortgage), exercise
its
rights to accelerate the maturity of such Mortgage Loan under any "due-on-sale"
clause to the extent permitted by law; provided, however, that the Seller shall
not exercise any such rights if prohibited by law or the terms of the Mortgage
Note from doing so or if the exercise of such rights would impair or threaten
to
impair any recovery under the related Primary Mortgage Insurance Policy, if
any.
If the Seller reasonably believes it is unable under applicable law to enforce
such "due-on-sale" clause, the Seller will enter into an assumption agreement
with the person to whom the Mortgaged Property has been conveyed or is proposed
to be conveyed, pursuant to which such person becomes liable under the Mortgage
Note and, to the extent permitted by applicable state law, the Mortgagor remains
liable thereon. Where an assumption is allowed pursuant to this Section 11.22,
the Seller, with the prior written consent of the primary mortgage insurer,
if
any, is authorized to enter into a substitution of liability agreement with
the
person to whom the Mortgaged Property has been conveyed or is proposed to be
conveyed pursuant to which the original mortgagor is released from liability
and
such Person is substituted as Mortgagor and becomes liable under the related
Mortgage Note. Any such substitution of liability agreement shall be in lieu
of
an assumption agreement.
In
connection with any such assumption or substitution of liability, the Seller
shall follow the underwriting practices and procedures employed by the Seller
for similar mortgage loans originated in accordance with the guidelines attached
hereto as Exhibit B serviced by the Seller for its own account. With respect
to
an assumption or substitution of liability, the Mortgage Interest Rate borne
by
the related Mortgage Note, the term of the Mortgage Loan and the outstanding
principal amount of the Mortgage Loan shall not be changed. The Seller shall
notify the Purchaser that any such substitution of liability or assumption
agreement has been completed by forwarding to the Purchaser or its designee
the
original of any such substitution of liability or assumption agreement, which
document shall be added to the related Mortgage File and shall, for all
purposes, be considered a part of such Mortgage File to the same extent as
all
other documents and instruments constituting a part thereof. Any fee collected
by the Seller for entering into an assumption or substitution of liability
agreement in excess of 1% of the unpaid principal balance of the Mortgage Loan
shall be deposited in the Custodial Account pursuant to Section
11.04.
Notwithstanding
the foregoing paragraphs of this Section or any other provision of this
Agreement, the Seller shall not be deemed to be in default, breach or any other
violation of its obligations hereunder by reason of any assumption of a Mortgage
Loan by operation of law or any assumption which the Seller may be restricted
by
law from preventing, for any reason whatsoever. For purposes of this Section
11.22, the term "assumption" is deemed to also include a sale of the Mortgaged
Property subject to the Mortgage that is not accompanied by an assumption or
substitution of liability agreement.
Section
11.23 Satisfaction
of Mortgages and Release of Mortgage Files.
Upon
the
payment in full of any Mortgage Loan, or the receipt by the Seller of a
notification that payment in full will be escrowed in a manner customary for
such purposes, the Seller will immediately notify the Purchaser by a
certification, which certification shall include a statement to the effect
that
all amounts received or to be received in connection with such payment which
are
required to be deposited in the Custodial Account pursuant to Section 11.04
have
been or will be so deposited, of a Servicing Officer and shall request delivery
to it of the portion of the Mortgage File held by the Purchaser. Upon receipt
of
such certification and request, the Purchaser or its designee shall within
five
(5) Business Days release the related Mortgage Loan Documents to the Seller
and
the Seller shall prepare and process any satisfaction or release. With respect
to any MERS Mortgage Loan, the Seller is authorized to cause the removal from
the registration on the MERS System of such Mortgage and to execute and deliver,
on behalf of the Purchaser, any and all instruments of satisfaction or
cancellation or of partial or full release. No expense incurred in connection
with any instrument of satisfaction or deed of reconveyance shall be chargeable
to the Custodial Account.
In
the
event the Seller satisfies or releases a Mortgage without having obtained
payment in full of the indebtedness secured by the Mortgage or should it
otherwise prejudice any right the Purchaser may have under the mortgage
instruments, the Seller, upon written demand, shall remit to the Purchaser
the
then unpaid principal balance of the related Mortgage Loan by deposit thereof
in
the Custodial Account. The Seller shall maintain the Fidelity Bond insuring
the
Seller against any loss it may sustain with respect to any Mortgage Loan not
satisfied in accordance with the procedures set forth herein.
From
time
to time and as appropriate for the service or foreclosure of the Mortgage Loan,
including for the purpose of collection under any Primary Mortgage Insurance
Policy, the Purchaser shall, upon request of the Seller and delivery to the
Purchaser or Purchaser's designee of a servicing receipt signed by a Servicing
Officer, release or cause to be released the portion of the Mortgage File held
by the Purchaser or its designee to the Seller. Such servicing receipt shall
obligate the Seller to return the related Mortgage documents to the Purchaser
when the need therefor by the Seller no longer exists, unless the Mortgage
Loan
has been liquidated and the Liquidation Proceeds relating to the Mortgage Loan
have been deposited in the Custodial Account or the Mortgage File or such
document has been delivered to an attorney, or to a public trustee or other
public official as required by law, for purposes of initiating or pursuing
legal
action or other proceedings for the foreclosure of the Mortgaged Property either
judicially or non-judicially, and the Seller has delivered to the Purchaser
a
certificate of a Servicing Officer certifying as to the name and address of
the
Person to which such Mortgage File or such document was delivered and the
purpose or purposes of such delivery. Upon receipt of a certificate of a
Servicing Officer stating that such Mortgage Loan was liquidated, the servicing
receipt shall be released by the Purchaser to the Seller.
Section
11.24 Servicing
Compensation.
As
compensation for its services hereunder, the Seller shall be entitled to
withdraw from the Custodial Account or to retain from interest payments on
the
Mortgage Loans the amounts provided for as the Seller's Servicing Fees.
Additional servicing compensation in the form of assumption fees, as provided
in
Section 11.22, prepayment penalties (except as otherwise set forth in a related
Purchase Price and Terms Letter with respect to any Mortgage Loan Package),
and
late payment charges or otherwise shall be retained by the Seller to the extent
not required to be deposited in the Custodial Account. The Seller shall be
required to pay all expenses incurred by it in connection with its servicing
activities hereunder and shall not be entitled to reimbursement therefor except
as specifically provided for.
Section
11.25 Statement
as to Compliance.
(a) The
Seller will deliver to the Purchaser On or before March 15, 2004, and March
1 of
each year thereafter, an Officers’ Certificate stating, as to each signatory
thereof, that (i) a review of the activities of the Seller during the preceding
year and of performance under this Agreement has been made under such officers’
supervision and (ii) to the best of such officers’ knowledge, based on such
review, the Seller has fulfilled all of its obligations under this Agreement
throughout such year, or, if there has been a default in the fulfillment of
any
such obligation, specifying each such default known to such officer and the
nature and status thereof.
(b) With
respect to any Loans that are subject to a Pass-Through Transfer or other
securitization transaction, to the extent that either of the Purchaser, any
master servicer which is master servicing loans in connection with such
transaction (a “Master Servicer”), or any related depositor (a “Depositor”) is
required under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”) to
prepare and file a certification pursuant to Section 302 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act, on or before March 15, 2004, and March 1 of each year thereafter, an
officer of the Seller shall execute and deliver an Officer’s Certificate to such
Purchaser, Master Servicer, or Depositor, as the case may be, for the benefit
of
such entity and such entity’s affiliates and the officers, directors and agents
of such entity and such entity’s affiliates, an Officer’s Certificate in the
form attached hereto as Exhibit
13.
(c) The
Seller shall indemnify and hold harmless the Master Servicer, the Depositor,
the
Purchaser (and if this Agreement has been assigned in whole or in part by the
Purchaser, any and all Persons previously acting as “Purchaser” hereunder), and
their respective officers, directors, agents and affiliates, and such
affiliates’ officers, directors and agents (any such person, an “Indemnified
Party”) from and against any losses, damages, penalties, fines, forfeitures,
reasonable legal fees and related costs, judgments and other costs and expenses
arising out of or based upon a breach by the Seller or any of its officers,
directors, agents or affiliates of its obligations under this Section 11.25
or
Section 11.26, or the bad faith or willful misconduct of the Seller in
connection therewith; provided, however, that the Seller shall not be obligated
to indemnify or hold harmless any Indemnified Party from or against any losses,
damages, penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments and other costs and expenses arising out of or based upon the
negligence, bad faith or willful misconduct of such Indemnified Party. If the
indemnification provided for herein is unavailable or insufficient to hold
harmless any Indemnified Party, then the Seller agrees that it shall contribute
to the amount paid or payable by the Indemnified Party as a result of the
losses, claims, damages or liabilities of the Indemnified Party in such
proportion as is appropriate to reflect the relative fault of the Indemnified
Party on the one hand and the Seller in the other in connection with a breach
of
the Seller’s obligations under this Section 11.25, or Section 11.26, or the
Seller’s negligence, bad faith or willful misconduct in connection
therewith.
Section
11.26 Independent
Public Accountants’ Servicing Report.
On
or
before March 15, 2004, and March 1 of each year thereafter, the Seller at its
expense shall cause a firm of independent public accountants (which may also
render other services to the Seller) which is a member of the American Institute
of Certified Public Accountants to furnish a statement to the Purchaser or
its
designee to the effect that such firm has examined certain documents and records
relating to the servicing of the Mortgage Loans under this Agreement or of
mortgage loans under pooling and servicing agreements (including the Mortgage
Loans and this Agreement) substantially similar one to another (such statement
to have attached thereto a schedule setting forth the pooling and servicing
agreements covered thereby) and that, on the basis of such examination conducted
substantially in compliance with the Uniform Single Attestation Program for
Mortgage Bankers, such firm confirms that such servicing has been conducted
in
compliance with such pooling and servicing agreements except for such
significant exceptions or errors in records that, in the opinion of such firm,
the Uniform Single Attestation Program for Mortgage Bankers requires it to
report.
Section
11.27 Reserved.
Section
11.28 Purchaser's
Right to Examine Seller Records.
The
Purchaser shall have the right to examine and audit upon reasonable notice
to
the Seller, during business hours or at such other times as might be reasonable
under applicable circumstances, any and all of the books, records, documentation
or other information of the Seller, or held by another for the Seller or on
its
behalf or otherwise, which relates to the performance or observance by the
Seller of the terms, covenants or conditions of this Agreement.
The
Seller shall provide to the Purchaser and any supervisory agents or examiners
representing a state or federal governmental agency having jurisdiction over
the
Purchaser, including but not limited to OTS, FDIC and other similar entities,
access to any documentation regarding the Mortgage Loans in the possession
of
the Seller which may be required by any applicable regulations. Such access
shall be afforded without charge, upon reasonable request, during normal
business hours and at the offices of the Seller, and in accordance with the
federal government, FDIC, OTS, or any other similar regulations.
AMENDMENT
NUMBER ONE
dated
as of April 1, 2003
by
and between
COUNTRYWIDE
HOME LOANS, INC.
and
GREENWICH
CAPITAL FINANCIAL PRODUCTS, INC.
This
AMENDMENT NUMBER ONE is made this 1s`
day of
November, 2004, by and between COUNTRYWIDE HOME LOANS, INC., having an
address
at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇# ▇▇-▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Seller")
and
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC., having an address at ▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Purchaser"), to the Master Mortgage
Loan Purchase and Servicing Agreement, dated as of April 1, 2003, by
and between
the Seller and the Purchaser, as amended (the "Agreement"). Capitalized
terms
used but not otherwise defined herein shall have the meanings assigned
to such
terms in the Agreement.
RECITALS
WHEREAS,
the Purchaser and the Seller desire to amend the Agreement, subject to
the terms
hereof, to modify the Agreement as specified herein with respect to any
pools of
Mortgage Loans purchased by the Purchaser on or after September 1,
2003;
WHEREAS,
the Purchaser and the Seller have agreed to amend the Agreement as set
forth
herein; and
WHEREAS,
the Purchaser and the Seller each have agreed to execute and deliver
this
Amendment Number One on the terms and conditions set forth herein.
NOW
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, and of the mutual covenants herein contained,
the
parties hereto hereby agree as follows:
SECTION
1. Amendments.
(a)
Effective as of September 1, 2003, Section 1 of the Agreement is hereby
amended
by adding the following definitions:
Negative
Amortization:
With
respect to each Negative Amortization Mortgage Loan, that portion of
interest
accrued at the Mortgage Interest Rate in any month which exceeds the
Monthly
Payment on the related Mortgage Loan for such month and which, pursuant
to the
terms of the Mortgage Note, is added to the principal balance of the
Mortgage
Loan.
Negative
Amortization Mortgage Loan:
Each
Mortgage Loan that is identified on the Mortgage Loan Schedule as a Mortgage
Loan that may be subject to Negative Amortization.
(b)
Effective as of September 1, 2003, Section 1 of the Agreement is hereby
amended
by deleting the definition of the term "Payment Adjustment Date" and
replacing
it with the following definition:
Payment
Adjustment Date:
With
respect to each Adjustable Rate Mortgage Loan, the date on which an adjustment
to the Monthly Payment pursuant to the related Mortgage Note becomes
effective.
A Payment Adjustment Date with respect to a Negative Amortization Mortgage
Loan
shall occur on each anniversary date of the first payment date for the
Mortgage
Loan.
(c)
Effective as of September 1, 2003, Section 1 of the Agreement is hereby
amended
by deleting the definition of "Stated Principal Balance" in its entirety
and
replacing it with the following:
Stated
Principal Balance:
As to
each Mortgage Loan as of any date of determination, (i) the principal
balance of
the Mortgage Loan as of the Cut-off Date after giving effect to payments
of
principal due on or before such date, whether or not collected from the
Mortgagor on or before such date, minus (ii) all amounts previously distributed
to the Purchaser with respect to the related Mortgage Loan representing
payments
or recoveries of principal, plus (iii) the cumulative amount of any Negative
Amortization.
(d)
Effective as of September 1, 2003, Section 7.02 of the Agreement is hereby
amended by deleting subpart (ix) thereof and replacing it with the
following:
(ix)
The
Mortgage (including any Negative Amortization which may arise thereunder,
with
respect to a Negative Amortization Loan) is a valid, existing and enforceable
first lien on the Mortgaged Property, including all improvements on the
Mortgaged Property subject only to (a) the lien of current real property
taxes
and assessments not yet due and payable, (b) covenants, conditions and
restrictions, rights of way, easements and other matters of the public
record as
of the date of recording being acceptable to mortgage lending institutions
generally and specifically referred to in the lender's title insurance
policy
delivered to the originator of the Mortgage Loan and which do not adversely
affect the Appraised Value of the Mortgaged Property, and (c) other matters
to
which like properties are commonly subject which do not materially interfere
with the benefits of the security intended to be provided by the Mortgage
or the
use, enjoyment, value or marketability of the related Mortgaged Property.
Any
security agreement, chattel mortgage or equivalent document related to
and
delivered in connection with the Mortgage Loan establishes and creates
a valid,
existing and enforceable first lien and first priority security interest
on the
property described therein and the Seller has full right to sell and
assign the
same to the Purchaser. The Mortgaged Property was not, as of the date
of
origination of the Mortgage Loan, subject to a mortgage, deed of trust,
deed to
secure debt or other security instrument creating a lien subordinate
to the lien
of the Mortgage;
(e)
Effective as of September 1, 2003, Section 7.02 of the Agreement is hereby
amended by deleting subpart (xv) thereof and replacing it with the
following:
(xv)The
Mortgage Loan is covered by an ALTA lender's title insurance policy (which,
has
an adjustable rate mortgage endorsement in the form of ALTA 6.0 or 6.1)
acceptable to FNMA or FBLMC, issued by a title insurer acceptable to
FNMA or
FHLMC and qualified to do business in the jurisdiction where the Mortgaged
Property is located, insuring (subject to the exceptions contained in
(ix)(a)
and (b) above) the Seller, its successors and assigns as to the first
priority
lien of the Mortgage in the original principal amount of the Mortgage
Loan and
against any loss by reason of the invalidity or unenforceability of the
lien
resulting from the provisions of the Mortgage providing for adjustment
in the
Mortgage Interest Rate, Monthly Payment and Negative Amortization provisions
of
the Mortgage Note. Additionally, such lender's title insurance policy
affirmatively insures ingress and egress to and from the Mortgaged Property,
and
against encroachments by or upon the Mortgaged Property or any interest
therein.
The Seller is the sole insured of such lender's title insurance policy,
and such
lender's title insurance policy is in full force and effect and will
be in full
force and effect upon the consummation of the transactions contemplated
by this
Agreement. No claims have been made under such lender's title insurance
policy,
and no prior holder of the related Mortgage, including the Seller, has
done, by
act or omission, anything which would impair the coverage of such lender's
title
insurance policy;
(f)
Effective as of September 1, 2003, Section 7.02 of the Agreement is hereby
amended by deleting subpart (xix) thereof and replacing it with the
following:
(xix)
The
Mortgage Loan was originated by the Seller or by a savings and loan
association,
a savings bank, a commercial bank or similar banking institution which
is
supervised and examined by a federal or state authority, or by a mortgagee
approved as such by the Secretary of HUD pursuant to Sections 203 and
211 of the
National housing Act. Principal payments on the Mortgage Loan commenced
no more
than sixty days after the proceeds of the Mortgage Loan were disbursed.
The
Mortgage Loan bears interest at the Mortgage Interest Rate. With respect
to each
Mortgage Loan which is not a Negative Amortization Loan, the Mortgage
Note is
payable on the first day of each month in Monthly Payments, which,
are changed
on each Adjustment Date, and are sufficient to fully amortize the original
principal balance over the original term thereof (other than with respect
to a
Mortgage Loan identified on the related Mortgage Loan Schedule as an
interest-only Mortgage Loan during the interest-only period) and to
pay interest
at the related Mortgage Interest Rate. With respect to each Negative
Amortization Mortgage Loan, the related Mortgage Note requires a Monthly
Payment
which is sufficient during the period following each Payment Adjustment
Date, to
fully amortize the outstanding principal balance as of the first day
of such
period (including any Negative Amortization) over the then remaining
term of
such Mortgage Note and to pay interest at the related Mortgage Interest
Rate;
provided, that the Monthly Payment shall not increase to an amount
that exceeds
107.5% of the amount of the Monthly Payment that was due immediately
prior to
the Payment Adjustment Date; provided, further, that the payment adjustment
cap
shall not be applicable with respect to the adjustment made to the
Monthly
Payment that occurs in a year in which the Mortgage Loan has been outstanding
for a multiple of 5 years and in any such year the Monthly Payment
shall be
adjusted to fully amortize the Mortgage Loan over the remaining
term;
(g)
Effective as of September 1, 2003, Section 7.02 of the Agreement is hereby
amended by deleting subpart (xxxv) thereof and replacing it with the
following:
(xxxv)
Any principal advances made to the Mortgagor prior to the Cut-off Date
have been
consolidated with the outstanding principal amount secured by the Mortgage,
and
the secured principal amount, as consolidated, bears a single interest
rate and
single repayment term. The lien of the Mortgage securing the consolidated
principal amount is expressly insured as having first 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 FNMA or
FHLMC.
The consolidated principal amount does not exceed the original principal
amount
of the Mortgage Loan plus any Negative Amortization.
(h)
Effective as of September 1, 2003, Section 11.10(ii) of the Servicing
Addendum
is hereby amended by deleting it in its entirety and replacing it with
the
following:
(ii)
the
outstanding principal balance of the Mortgage Loan (including any cumulative
related Negative Amortization), in each case in an amount not less than
such
amount as is necessary to prevent the Mortgagor and/or the Mortgagee from
becoming a co-insurer.
SECTION
2. Limited
Effect.
Except
as amended hereby, the Agreement shall continue in full force and effect
in
accordance with its terms. Reference to this Amendment need not be made
in the
Agreement or any other instrument or document executed in connection
therewith,
or in any certificate, letter or communication issued or made pursuant
to, or
with respect to, the Agreement, any reference in any of such items to
the
Agreement being sufficient to refer to the Agreement as amended
hereby.
SECTION
3. Governing
Law.
This
Amendment Number One shall be construed in accordance with the laws of
the State
of New York and the obligations, rights, and remedies of the parties
hereunder
shall be determined in accordance with such laws without regard to conflict
of
laws doctrine applied in such state (other than Section 5-1401 of the
New York
General Obligations Law).
SECTION
4. Counterparts.
This
Amendment Number One may be executed by each of the parties hereto on
any number
of separate counterparts, each of which shall be an original and all
of which
taken together shall constitute one and the same instrument.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the Seller and the Purchaser have caused this Amendment
Number
One to be executed and delivered by their duly authorized officers as
of the day
and year first above written.
COUNTRYWIDE
HOME LOANS, INC.
(Seller)
By:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title:
First Vice President
GREENWICH
CAPITAL FINANCIAL
PRODUCTS,
INC.
(Purchaser)
By:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Title: Senior Vice
President
AMENDMENT
REG AB
TO
THE
MASTER MORTGAGE LOAN PURCHASEAND SERVICING AGREEMENT
This
is
Amendment Reg AB ("Amendment
Reg AB"),
dated as
of December 1, 2005, by and between Greenwich Capital Financial Products,
Inc.
(the "Purchaser"),
and
Countrywide Home Loans, Inc. (the "Company")
to that
certain Master Mortgage Loan Purchase and Servicing Agreement dated as
of April
1, 2003 by and between the Company and the Purchaser (as amended, modified
or
supplemented, the "Existing
Agreement").
WITNESSETH
WHEREAS,
the Company and the Purchaser have agreed, subject to the terms and conditions
of this Amendment Reg AB that the Existing Agreement be amended to reflect
agreed upon revisions to the terms of the Existing Agreement.
Accordingly,
the Company and the Purchaser hereby agree, in consideration of the mutual
premises and mutual obligations set forth herein, that the Existing Agreement
is
hereby amended as follows:
1.
Capitalized terms used herein but not otherwise defined shall have the
meanings
set forth in the Existing Agreement. The Existing Agreement is hereby
amended by
adding the following definitions in their proper alphabetical
order:
Commission:
The
United States Securities and Exchange Commission. Company
Information:
As
defined in Section 2(g)(i)(A)(1).
Depositor:
The
depositor, as such term is defined in Regulation AB, with respect to
any
Securitization Transaction.
Exchange
Act.
The
Securities Exchange Act of 1934, as amended.
Qualified
Correspondent:
Any
Person from which the Company purchased Mortgage Loans, provided that
the
following conditions are satisfied: (i) such Mortgage Loans were either
(x)
originated pursuant to an agreement between the Company and such Person
that
contemplated that such Person would underwrite mortgage loans from time
to time,
for sale to the Company, in accordance with underwriting guidelines designated
by the Company ("Designated Guidelines") or guidelines that do not vary
materially from such Designated Guidelines or (y) individually re-underwritten
by the Company to the Designated Guidelines at the time such Mortgage
Loans were
acquired by the Company; (ii) either (x) the Designated Guidelines were,
at the
time such Mortgage Loans were originated, used by the Company in origination
of
mortgage loans of the same type as the Mortgage Loans for the Company's
own
account or (y) the Designated Guidelines were, at the time such Mortgage
Loans
were underwritten, designated by the Company on a consistent basis for
use by
lenders in originating mortgage loans to be purchased by the Company;
and (iii)
the Company employed, at the time such Mortgage Loans were acquired by
the
Company, 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 either Persons from which it purchased mortgage loans properly
applied the underwriting criteria designated by the Company or the Mortgage
Loans purchased by the Company substantially comply with the Designated
Guidelines.
Reconstitution:
Any
Securitization Transaction or Whole Loan Transfer.
Reconstitution
Agreement:
An
agreement or agreements entered into by the Company and the Purchaser
and/or
certain third parties in connection with a Reconstitution with respect
to any or
all of the Mortgage Loans serviced under the Agreement.
Regulation
AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject
to
such clarification and interpretation as have been provided by the
Commission in
the adopting release (Asset-Backed Securities, Securities Act Release
No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff
of the
Commission, or as may be provided by the Commission or its staff from
time to
time.
Securities
Act:
The
Securities Act of 1933, as amended.
Securitization
Transaction:
Any
transaction involving either (1) a sale or other transfer of some or
all of the
Mortgage Loans directly or indirectly to an issuing entity in connection
with an
issuance of publicly offered, rated mortgage-backed securities or (2)
an
issuance of publicly offered, rated 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.
Servicer:
As
defined in Section 2(c)(iii).
Servicing
Criteria:
The
"servicing criteria" set forth in Item 1122(d) of Regulation AB, as
such may be
amended from time to time.
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 Company or a
Subservicer.
Subservicer:
Any
Person that services Mortgage Loans on behalf of the Company or any
Subservicer
and is responsible for the performance (whether directly or through
Subservicers
or Subcontractors) of a substantial portion of the material servicing
functions
required to be performed by the Company under this Agreement or any
Reconstitution Agreement that are identified in Item 1122(d) of Regulation
AB;
provided, however, that the term "Subservicer" shall not include any
master
servicer, or any special servicer engaged at the request of a Depositor,
Purchaser or investor in a Securitization Transaction, nor any "back-up
servicer" or trustee performing servicing functions on behalf of a
Securitization Transaction.
Third-Party
Originator:
Each
Person, other than a Qualified Correspondent, that originated Mortgage
Loans
acquired by the Company.
Whole
Loan Transfer:
Any sale
or transfer of some or all of the Mortgage Loans, other than a Securitization
Transaction.
2. The
Purchaser and the Company agree that the Existing Agreement is hereby
amended by
adding the following provisions:
(a) Intent
of the Parties; Reasonableness.
The
Purchaser and the Company acknowledge and agree that the purpose of Article
2 of
this Agreement is to facilitate compliance by the Purchaser and any Depositor
with the provisions of Regulation AB and related rules and regulations
of the
Commission. Neither the Purchaser nor any Depositor shall exercise its
right to
request delivery of information or other performance under these provisions
other than in good faith, or for purposes other than compliance with
the
Securities Act, the Exchange Act and the rules and regulations of the
Commission
thereunder. The Company 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, and agrees to negotiate in good
faith
with the Purchaser or any Depositor with regard to any reasonable requests
for
delivery of information under these provisions on the basis of evolving
interpretations of Regulation AB. In connection with any Securitization
Transaction, the Company shall cooperate fully with the Purchaser to
deliver to
the Purchaser (including any of its assignees or designees) and any Depositor,
any and all statements, reports, certifications, records and any other
information necessary to permit the Purchaser or such Depositor to comply
with
the provisions of Regulation AB, together with such disclosures relating
to the
Company, any Subservicer, any Third-Party Originator and the Mortgage
Loans, or
the servicing of the Mortgage Loans necessary in order to effect such
compliance.
(b) Additional
Representations and Warranties of the Cornpany.
(i)
The
Company 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 Section 2(c) that, except as disclosed in writing to
the
Purchaser or such Depositor prior to such date: (i) the Company is not
aware and
has not received notice that any default, early amortization or other
performance triggering event has occurred as to any other securitization
due to
any act or failure to act of the Company; (ii) the Company has not been
terminated as servicer in a residential mortgage loan securitization,
either due
to a servicing default or to application of a servicing performance test
or
trigger; (iii) no material noncompliance with the applicable servicing
criteria
with respect to other securitizations of residential mortgage loans involving
the Company as servicer has been disclosed or reported by the Company;
(iv) no
material changes to the Company's policies or procedures with respect
to the
servicing function it will perform under this Agreement and any Reconstitution
Agreement for mortgage loans of a type similar to the Mortgage Loans
have
occurred during the three-year period immediately preceding the related
Securitization Transaction; (v) there are no aspects of the Company's
financial
condition that could have a material adverse effect on the performance
by the
Company of its servicing obligations under this Agreement or any Reconstitution
Agreement; (vi) there are no material legal or governmental proceedings
pending
(or known to be contemplated) against the Company, any Subservicer or
any
Third-Party Originator; and (vii) there are no affiliations, relationships
or
transactions relating to the Company, any Subservicer or any Third-Party
Originator with respect to any Securitization Transaction and any party
thereto
identified by the related Depositor of a type described in Item 1119
of
Regulation AB.
(ii)
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
Section 2(c), the Company shall, within five Business Days following
such
request, confirm in writing the accuracy of the representations and warranties
set forth in paragraph (i) of this 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.
(c) Information
to Be Provided by the Company.
In
connection with any Securitization Transaction the Company shall (1)
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 reasonably required
for
compliance with Regulation AB, the information and materials specified
in
paragraphs (i), (ii), (iii) and (vi) of this Section 2(c), and (2) as
promptly
as practicable following notice to or discovery by the Company, provide
to the
Purchaser and any Depositor (in writing) the information specified in
paragraph
(iv) of this Section.
(i)
If so
requested by the Purchaser or any Depositor, the Company shall provide
such
information regarding (x) the Company, as originator of the Mortgage
Loans
(including as an acquirer of Mortgage Loans from a Qualified Correspondent,
if
applicable), or (y) as applicable, each Third-Party Originator, and (z)
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 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 by a governmental authority) against the Company,
each
Third-Party Originator, if applicable, and each Subservicer; and
(D)
a
description of any affiliation or relationship between the Company, each
Third-Party Originator, if applicable, each Subservicer and any of the
following
parties to a Securitization Transaction, as such parties are identified
to the
Company by the Purchaser or any Depositor in writing in advance of such
Securitization Transaction:
(1)
the
sponsor;
(2)
the
depositor;
(3)
the
issuing entity;
(4)
any
servicer;
(5)
any
trustee;
(6)
any
originator;
(7)
any
significant obligor;
(8)
any
enhancement or support provider;
(9)
and
any other material transaction party.
(ii)
If
so requested by the Purchaser or any Depositor, the Company shall provide
(or,
as applicable, cause each Third-Party Originator to provide) Static Pool
Information with respect to the mortgage loans (of a similar type as
the
Mortgage Loans, as reasonably identified by the Purchaser as provided
below)
originated by (a) the Company, if the Company is an originator of Mortgage
Loans
(including as an acquirer of Mortgage Loans from a Qualified Correspondent,
if
applicable), and/or (b) as applicable, each Third-Party Originator. Such
Static
Pool Information shall be prepared by the Company (or, if applicable,
the
Third-Party Originator) on the basis of its reasonable, good faith
interpretation of the requirements of Item 1105(a)(l)-(3) of Regulation
AB. To
the extent that there is reasonably available to the Company (or Third-Party
Originator, as applicable) Static Pool Information with respect to more
than one
mortgage loan type, the Purchaser or any Depositor shall be entitled
to specify
whether some or all of such information shall be provided pursuant to
this
paragraph. The content of such Static Pool Information may be in the
form
customarily provided by the Company, and need not be customized for the
Purchaser or any Depositor. Such Static Pool Information for each vintage
origination year or prior securitized pool, as applicable, shall be presented
in
increments no less frequently than quarterly over the life of the mortgage
loans
included in the vintage origination year or prior securitized pool. The
most
recent periodic increment must be as of a date no later than 135 days
prior to
the
date
of the prospectus or other offering document in which the Static Pool
Information is to be included or incorporated by reference. The Static
Pool
Information shall be provided in an electronic format that provides a
permanent
record of the information provided, such as a portable document format
(pdf)
file, or other such electronic format.
Promptly
following notice of discovery of a material error, as determined in the
Company's judgment, in Static Pool Information provided pursuant to the
immediately preceding paragraph (including an omission to include therein
information required to be provided pursuant to such paragraph), the
Company
shall provide corrected Static Pool Information to the Purchaser or any
Depositor, as applicable, in the same format in which Static Pool Information
was previously provided to such party by the Company.
If
so
requested by the Purchaser or any Depositor, the Company shall provide
(or, as
applicable, cause each Third-Party Originator to provide), at the expense
of the
requesting party (to the extent of any additional incremental expense
associated
with delivery pursuant to this Agreement), such agreed-upon procedures
letters
of certified public accountants 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 Company's
or, if applicable, Third-Party Originator's originations or purchases,
to
calendar months commencing January 1, 2006, as the Purchaser or such
Depositor
shall reasonably request. Such statements and letters shall be addressed
to and
be for the benefit of such parties as the Purchaser or such Depositor
shall
designate, which shall be limited to any Sponsor, any Depositor, any
broker
dealer acting as underwriter, placement agent or initial purchaser with
respect
to a Securitization Transaction or any other party that is reasonably
and
customarily entitled to receive such statements and letters in 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.
(iii)
If
reasonably requested by the Purchaser or any Depositor, the Company shall
provide such information regarding the Company, as servicer of the Mortgage
Loans, and each Subservicer (each of the Company and each Subservicer,
for
purposes of this paragraph, a "Servicer"), as is requested for the purpose
of
compliance with Items 1108 of Regulation AB. Such information shall include,
at
a minimum:
(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 reasonable determination 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;
(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 Company 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.
(iv)
If
reasonably requested by the Purchaser or any Depositor for the purpose
of
satisfying its reporting obligation under the Exchange Act with respect
to any
class of asset-backed securities, the Company shall (or shall cause each
Subservicer and, if applicable, any Third-Party Originator to) (a) notify
the
Purchaser and any Depositor in writing of (1) any material litigation
or
governmental proceedings pending against the Company, any Subservicer
or any
Third-Party Originator and (2) any affiliations or relationships that
develop
following the closing date of a Securitization Transaction between the
Company,
any Subservicer or any Third-Party Originator and any of the parties
specified
in clause (D) of paragraph (i) of this Section 2(c) (and any other parties
identified in writing by the requesting party) with respect to such
Securitization Transaction, and (b) provide to the Purchaser and any
Depositor a
description of such proceedings, affiliations or relationships.
(v)
As a
condition to the succession to the Company or any Subservicer as servicer
or
subservicer under this Agreement or any Reconstitution Agreement by any
Person
(i) into which the Company or such Subservicer may be merged or consolidated,
or
(ii) which may be appointed as a successor to the Company or any Subservicer,
the Company shall provide to the Purchaser and any Depositor, at least
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, all information reasonably requested
by the
Purchaser or any Depositor in order to comply with its reporting obligation
under Item 6.02 of Form 8-K with respect to any class of asset-backed
securities.
(vi)
In
addition to such information as the Company, as servicer, is obligated
to
provide pursuant to other provisions of this Agreement, if reasonably
requested
by the Purchaser or any Depositor, the Company shall provide such information
reasonably available to the Company regarding the performance or servicing
of
the Mortgage Loans as is reasonably required to facilitate preparation
of
distribution reports in accordance with Item 1121 of Regulation AB. Such
information shall be provided concurrently with the monthly reports otherwise
required to be delivered by the Company under this Agreement, commencing
with
the first such report due not less than fifteen Business days following
such
request.
(d) Servicer
Compliance Statement.
On
or
before March 15 of each calendar year, commencing in 2007, the Company
shall
deliver to the Purchaser and any Depositor a statement of compliance
addressed
to the Purchaser and such Depositor and signed by an authorized officer
of the
Company, to the effect that (i) a review of. the Company's servicing
activities
during the immediately preceding calendar year (or applicable portion
thereof)
and of its performance under the servicing provisions of 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 Company has fulfilled all of its servicing 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.
(e) Report
on Assessment of Compliance and Attestation.
(i) On
or
before March 15 of each calendar year, commencing in 2007, the Company
shall:
(A)
deliver to the Purchaser and any Depositor a report regarding the Company's
assessment of compliance with the Servicing Criteria during the immediately
preceding calendar year, as required under Rules 13a-18 and 15d-18 of
the
Exchange Act and Item 1122 of Regulation AB. Such report shall be addressed
to
the Purchaser and such Depositor and signed by an authorized officer
of the
Company, and shall address each of the applicable Servicing Criteria
specified
on a certification substantially in the form of Exhibit B hereto delivered
to
the Purchaser concurrently with the execution of this Agreement;
(B)
deliver to the Purchaser and any Depositor a report of a registered public
accounting firm that attests to, and reports on, the assessment of compliance
made by the Company and delivered pursuant to the preceding paragraph.
Such
attestation shall be in accordance with Rules 1-02(a)(3) and 2-02(g)
of
Regulation S-X under the Securities Act and the Exchange Act;
(C)
cause
each Subservicer and each Subcontractor determined by the Company pursuant
to
Section 2(f)(ii) to be "participating in the servicing function" within
the
meaning of Item 1122 of Regulation AB (each, a "Participating Entity"),
to
deliver to the Purchaser and any Depositor an assessment of compliance
and
accountants' attestation as and when provided in paragraphs (i) and (ii)
of this
Section 2(e); and
(D)
deliver to the Purchaser, Depositor or 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 A; provided that such certification delivered by the Company
may not be
filed as an exhibit to, or included in, any filing with the
Commission.
The
Company acknowledges that the party identified in clause (i)(D) above
may rely
on the certification provided by the Company pursuant to such clause
in signing
a Sarbanes Certification and filing such with the Commission.
(ii)
Each
assessment of compliance provided by a Subservicer pursuant to Section
2(e)(i)(A) shall address each of the applicable Servicing Criteria specified
on
a certification substantially in the form of Exhibit B 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 Participating
Entity
pursuant to Section 2(e)(i)(C) need not address any elements of the Servicing
Criteria other than those specified by the Company pursuant to Section
2(f).
(f)
Use
of
Subservicers and Subcontractors.
The
Company shall not hire or otherwise utilize the services of any Subservicer
to
fulfill any of the obligations of the Company as servicer under this
Agreement
or any Reconstitution Agreement unless the Company complies with the
provisions
of paragraph (i) of this Subsection (f). The Company shall not hire
or otherwise
utilize the services of any Subcontractor, and shall not permit any
Subservicer
to hire or otherwise utilize the services of any Subcontractor, to
fulfill any
of the obligations of the Company as servicer under this Agreement
or any
Reconstitution Agreement unless the Company complies with the provisions
of
paragraph (ii) of this Subsection (f).
(i)
It
shall not be necessary for the Company to seek the consent of the Purchaser
or
any Depositor to the utilization of any Subservicer. The Company shall
cause any
Subservicer used by the Company (or by any Subservicer) for the benefit
of the
Purchaser and any Depositor to comply with the provisions of this Section
and
with Sections 2(b), 2(c)(iii), 2(c)(v), 2(d), and 2(e) of this Agreement
to the
same extent as if such Subservicer were the Company, and to provide the
information required with respect to such Subservicer under Section 2(c)(iv)
of
this Agreement. The Company shall be responsible for obtaining from each
Subservicer and delivering to the Purchaser and any Depositor any servicer
compliance statement required to be delivered by such Subservicer under
Section
2(d), any assessment of compliance and attestation required to be delivered
by
such Subservicer under Section 2(e) and any certification required to
be
delivered to the Person that will be responsible for signing the Sarbanes
Certification under Section 2(e) as and when required to be
delivered.
(ii)
It
shall not be necessary for the Company to seek the consent of the Purchaser
or
any Depositor to the utilization of any Subcontractor. The Company shall
promptly upon request provide to the Purchaser and any Depositor (or
any
designee of the Depositor, such as a master servicer or administrator)
a written
description of the role and function of each Subcontractor utilized by
the
Company or any Subservicer, specifying (A) the identity of each such
Subcontractor, (B) which (if any) of such Subcontractors are Participating
Entities, and (C) which elements of the Servicing Criteria will be addressed
in
assessments of compliance provided by each Participating Entity identified
pursuant to clause (B) of this paragraph.
As
a
condition to the utilization of any Participating Entity, the Company
shall
cause any such Participating Entity used by the Company (or by any Subservicer)
for the benefit of the Purchaser and any Depositor to comply with the
provisions
of Section 2(e) of this Agreement to the same extent as if such Participating
Entity were the Company. The Company shall be responsible for obtaining
from
each Participating Entity and delivering to the Purchaser and any Depositor
any
assessment of compliance and attestation required to be delivered by
such
Participating Entity under Section 2(e), in each case as and when required
to be
delivered.
(g) Indemnification;
Remedies.
(i)
The
Company shall indemnify the Purchaser and each of the following parties
participating in a Securitization Transaction: each sponsor and issuing
entity;
each Person responsible for the 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 and employees 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:
(A)(1)
any untrue statement of a material fact contained or alleged to be contained
in
any information, report, certification or other material provided under
this
Amendment Reg AB by or on behalf of the Company, or provided under this
Amendment Reg AB by or on behalf of any Subservicer, Participating Entity
or, if
applicable, Third-Party Originator (collectively, the "Company Information"),
or
(2) the omission or alleged omission to state in the Company Information
a
material fact required to be stated in the Company Information or necessary
in
order to make the statements therein, in the light of the circumstances
under
which they were made, not misleading; provided,
by way of clarification, that
clause (2) of this paragraph shall be construed solely by reference to
the
Company Information and not to any other information communicated in
connection
with a sale or purchase of securities, without regard to whether the
Company
Information or any portion thereof is presented together with or separately
from
such other information;
(B)
any
failure by the Company, any Subservicer, any Participating Entity or
any
Third-Party Originator to deliver any information, report, certification,
accountants' letter or other material when and as required under this
Amendment
Reg AB, including any failure by the Company to identify pursuant to
Section
2(f)(ii) any Participating Entity; or
(C)
any
breach by the Company of a representation or warranty set forth in Section
2(b)(i) or in a writing furnished pursuant to Section 2(b)(ii) and made
as of a
date prior to the closing date of the related Securitization Transaction,
to the
extent that such breach is not cured by such closing date, or any breach
by the
Company of a representation or warranty in a writing furnished pursuant
to
Section 2(b)(ii) to the extent made as of a date subsequent to such closing
date.
In
the
case of any failure of performance described in clause (i)(B) of this
Section,
the Company shall promptly reimburse the Purchaser, any Depositor, as
applicable, and each Person responsible for the execution or filing of
any
report required to be filed with the Commission with respect to such
Securitization Transaction, or for execution of a certification pursuant
to Rule
13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to such
Securitization Transaction, for all costs reasonably incurred by each
such party
in order to obtain the information, report, certification, accountants'
letter
or other material not delivered as required by the Company, any Subservicer,
any
Participating Entity or any Third-Party Originator.
(ii)
(A)
Any failure by the Company, any Subservicer, any Participating Entity
or any
Third-Party Originator to deliver any information, report, certification,
accountants' letter or other material when and as required under this
Amendment
Reg AB, which continues unremedied for three Business Days after receipt
by the
Company and the applicable Subservicer, Subcontractor, or Third-Party
Originator
of written notice of such failure from the Purchaser or Depositor shall,
except
as provided in clause (B) of this paragraph, constitute an Event of Default
with
respect to the Company under this Agreement and any applicable Reconstitution
Agreement, and shall entitle the Purchaser or Depositor, as applicable,
in its
sole discretion to terminate the rights and obligations of the Company
as
servicer under this Agreement and/or any applicable Reconstitution Agreement
without payment (notwithstanding anything in this Amendment Reg AB or
any
applicable Reconstitution Agreement to the contrary) of any compensation
to the
Company; provided,
however it
is
understood that the Company shall remain entitled to receive reimbursement
for
all unreimbursed Monthly Advances and Servicing Advances made by the
Company
under this Agreement and/or any applicable Reconstitution Agreement.
Notwithstanding anything to the contrary set forth herein, to the extent
that
any provision of this Agreement and/or any applicable Reconstitution
Agreement
expressly provides for the survival of certain rights or obligations
following
termination of the Company as servicer, such provision shall be given
effect.
(B)
Any
failure by the Company, any Subservicer or any Participating Entity to
deliver
any information, report, certification or accountants' letter when and
as
required under Section 2(d) or 2(e), including any failure by the Company
to
identify a Participating Entity, 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 Company under this Agreement and any applicable
Reconstitution Agreement, and shall entitle the Purchaser or Depositor,
as
applicable, in its sole discretion to terminate the rights and obligations
of
the Company as servicer under this Agreement and/or any applicable
Reconstitution Agreement without payment (notwithstanding anything in
this
Amendment Reg AB to the contrary) of any compensation to the Company;
provided,
however it
is
understood that the Company shall remain entitled to receive reimbursement
for
all unreimbursed Monthly Advances and Servicing Advances made by the
Company
under this Agreement and/or any applicable Reconstitution Agreement.
Notwithstanding anything to the contrary set forth herein, to the extent
that
any provision of this Agreement and/or any applicable Reconstitution
Agreement
expressly provides for the survival of certain rights or obligations
following
termination of the Company as servicer, such provision shall be given
effect.
(C)
The
Company shall promptly reimburse the Purchaser (or any affected designee
of the
Purchaser, such as a master servicer) and any Depositor, as applicable,
for all
reasonable expenses incurred by the Purchaser (or such designee) or such
Depositor as such are incurred, in connection with the termination of
the
Company as servicer and the transfer of servicing of the Mortgage Loans
to a
successor servicer. The provisions of this paragraph shall not limit
whatever
rights the Company, 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.
(iii)
The
Purchaser agrees to indemnify and hold harmless the Company, each Person
who
controls the Company (within the meaning of Section 15 of the Securities
Act and
Section 20 of the Exchange Act), and the present and former directors,
officers
and employees of each of the foregoing 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 any untrue statement or alleged untrue statement
of
any material fact contained in any filing with the Commission with respect
to a
Securitization Transaction or the omission or alleged omission to state
in any
filing with the Commission with respect to a Securitization Transaction
a
material fact required to be stated or necessary to be stated in order
to make
the statements therein, in the light of the circumstances under which
they were
made, not misleading, in each case to the extent, but only to the extent,
that
such untrue statement, alleged untrue statement, omission, or alleged
omission
relates to any filing with the Commission with respect to a Securitization
Transaction other than the Company Information.
3.
Notwithstanding any other provision of this Amendment Reg AB, the Company
shall
seek the consent of the Purchaser for the utilization of all Subservicers
and
Participating Entities, when required by and in accordance with the terms
of the
Existing Agreement.
4.
The
Existing Agreement is hereby amended by adding the Exhibits attached
hereto as
Exhibit A and Exhibit B to the end thereto. References in this Amendment
Reg AB
to "this Agreement" or words of similar import (including indirect references
to
the Agreement) shall be deemed to be references to the Existing Agreement
as
amended by this Amendment Reg AB. Except as expressly amended and modified
by
this Amendment Reg AB, the Agreement shall continue to be, and shall
remain, in
full force and effect in accordance with its terms. In the event of a
conflict
between this Amendment Reg AB and any other document or agreement, including
without limitation the Existing Agreement, this Amendment Reg AB shall
control.
5.
This
Amendment Reg AB may be executed in one or more counterparts and by different
parties hereto on separate counterparts, each of which, when so executed,
shall
constitute one and the same agreement. This Amendment Reg AB will become
effective as of the date first mentioned above. This Amendment Reg AB
shall bind
and inure to the benefit of and be enforceable by the Company and the
Purchaser
and the respective permitted successors and assigns of the Company and
the
successors and assigns of the Purchaser.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the parties have caused their names to be signed hereto
by
their respective officers thereunto duly authorized as of the day and
year first
above written.
GREENWICH
CAPITAL FINANCIAL
PRODUCTS,
INC.
Purchaser
By:
Name:
Title:
COUNTRYWIDE
HOME LOANS, INC.
Company
By:
Name:
Title:
EXHIBIT
A
FORM
OF
ANNUAL CERTIFICATION
Re: The
[ ]
agreement dated as of 200[
]
(the "Agreement"), among [IDENTIFY PARTIES]
I,
, the
of
Countrywide Home Loans, Inc., certify to [the Purchaser], [the Depositor]:
[Master Servicer], [Securities Administrator] or [Trustee], and its 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]
or
[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] or [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; and
[Intentionally
Left Blank]
A-1
(5)
The
Compliance Statement required to be delivered by the Company pursuant
to this
Agreement, and the Servicing Assessment and Attestation Report required
to be
provided by the Company and by each Subservicer and Participating Entity
pursuant to the Agreement, have been provided to the [Depositor] [Master
Servicer]. Any material instances of noncompliance described in such
reports
have been disclosed to the [Depositor] [Master Servicer]. Any material
instance
of noncompliance with the Servicing Criteria has been disclosed in such
reports.
Date:
_________________________________
By:
Name:
Title:
A-2
EXHIBIT
B
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by [the Company] [Name of
Subservicer]
shall address, at a minimum, the applicable criteria identified 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.
|
|
|
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.
|
|
|
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.
|
|
|
|
Cash
Collection and Administration
|
|
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial
bank
accounts and related bank clearing accounts no more than
two business days
following receipt, or such other number of days specified
in the
transaction agreements.
|
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
|
|
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.
|
|
|
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.
|
|
|
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.
|
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
|
B-1
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
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.
|
|
|
|
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.
|
|
|
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.
|
|
|
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.
|
|
|
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.
|
|
|
|
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.
|
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by
the transaction
agreements
|
|
|
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.
|
|
|
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.
|
|
|
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.
|
B-2
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
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.
|
|
|
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.
|
|
|
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).
|
|
|
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.
|
|
|
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.
|
|
|
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.
|
|
|
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.
|
|
|
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.
|
B-3
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and
recorded in
accordance with the transaction agreements.
|
|
|
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.
|
|
|
|
|
|
[NAME
OF COMPANY] [NAME OF
SUBSERVICER]
Date:
_________________________________
By:
Name:
Title:
B-4