GREENWICH CAPITAL FINANCIAL PRODUCTS, INC. Purchaser and WELLS FARGO BANK, N.A. Company
GREENWICH
CAPITAL FINANCIAL PRODUCTS, INC.
Purchaser
and
▇▇▇▇▇
FARGO BANK, N.A.
Company
SELLER'S
WARRANTIES AND SERVICING AGREEMENT
Dated
as of December 1, 2006
Fixed
Rate Mortgage Loans
WFHM
2006-W109
TABLE
OF CONTENTS
|
ARTICLE
I
|
1
|
|
DEFINITIONS
|
1
|
|
ARTICLE
II
|
14
|
|
CONVEYANCE
OF MORTGAGE LOANS; POSSESSION OF CUSTODIAL MORTGAGE FILES; BOOKS AND
RECORDS; CUSTODIAL AGREEMENT; DELIVERY OF
DOCUMENTS
|
14
|
|
ARTICLE
III
|
18
|
|
REPRESENTATIONS
AND WARRANTIES REMEDIES AND BREACH
|
18
|
|
ARTICLE
IV
|
40
|
|
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
|
40
|
|
ARTICLE
V
|
57
|
|
PAYMENTS
TO PURCHASER
|
57
|
|
ARTICLE
VI
|
58
|
|
GENERAL
SERVICING PROCEDURES
|
58
|
|
ARTICLE
VII
|
63
|
|
COMPANY
TO COOPERATE
|
63
|
|
ARTICLE
VIII
|
64
|
|
THE
COMPANY
|
64
|
|
ARTICLE
IX
|
66
|
|
AGENCY
SALES, SECURITIZATION TRANSACTIONS AND WHOLE LOAN
TRANSFERS
|
66
|
|
ARTICLE
X
|
78
|
|
DEFAULT
|
78
|
|
ARTICLE
XI
|
80
|
|
TERMINATION
|
80
|
|
ARTICLE
XII
|
81
|
|
MISCELLANEOUS
PROVISIONS
|
81
|
EXHIBITS
|
Exhibit
A
|
Mortgage
Loan Schedule
(WFHM
2006-W109)
|
|
Exhibit
B
|
Custodial
Agreement
|
|
Exhibit
C
|
Contents
of Each Custodial Mortgage File, Retained Mortgage File and Servicing
File
|
|
Exhibit
D
|
Data
File Elements
|
|
Exhibit
E
|
Servicing
Criteria
|
|
Exhibit
F
|
Sarbanes
Certification
|
|
Exhibit
G
|
Form
of Assignment, Assumption and Recognition Agreement
|
|
Exhibit
H
|
Form
of Indemnification Agreement
|
|
Exhibit
I
|
▇▇▇▇▇▇▇
Mac Representations
|
This
is a
Seller's Warranties and Servicing Agreement for fixed rate residential first
lien mortgage loans, dated and effective as of December 1, 2006, and is executed
between Greenwich Capital Financial Products, Inc., as purchaser (the
"Purchaser"), and ▇▇▇▇▇ Fargo Bank, N.A., as seller and servicer (the
"Company").
WITNESSETH
WHEREAS,
the Purchaser has agreed to purchase from the Company and the Company has agreed
to sell to the Purchaser certain first lien fixed rate mortgage loans (the
“Mortgage Loans”) which have an aggregate outstanding principal balance as
indicated on the Mortgage Loan Schedule, which is annexed hereto as Exhibit
A;
WHEREAS,
each of the Mortgage Loans is secured by a mortgage, deed of trust or other
security instrument creating a first lien (as indicated on the Data File) on
a
residential dwelling located in the jurisdiction indicated on the Mortgage
Loan
Schedule; and
WHEREAS,
the Purchaser and the Company wish to prescribe the manner of purchase of the
Mortgage Loans and the conveyance, servicing and control of the Mortgage
Loans.
NOW,
THEREFORE, in consideration of the mutual agreements hereinafter set forth,
and
for other good and valuable consideration, the receipt and adequacy of which
is
hereby acknowledged, the Purchaser and the Company agree as
follows:
ARTICLE
I
DEFINITIONS
Whenever
used herein, the following words and phrases, unless the content otherwise
requires, shall have the following meanings:
Accepted
Servicing Practices:
With
respect to any Mortgage Loan, those mortgage servicing practices of prudent
mortgage lending institutions which service mortgage loans of the same type
as
the Mortgage Loans in the jurisdiction where the related Mortgaged Property
is
located, which servicing is in accordance with all applicable federal, state
and
local laws and regulations and the terms of the Mortgage Loan
Documents.
Adjustable
Rate Mortgage Loan:
A
Mortgage Loan which provides for the adjustment of the Mortgage Interest Rate
payable in respect thereto.
1
Adjustment
Date:
As to
each Adjustable Rate Mortgage Loan, the date on which the Mortgage Interest
Rate
is adjusted in accordance with the terms of the related Mortgage Note and
Mortgage.
Agency/Agencies:
▇▇▇▇▇▇
Mae, ▇▇▇▇▇▇▇ Mac or GNMA, or any of them as applicable.
Agency
Sale:
Any
sale or transfer of some or all of the Mortgage Loans by the Purchaser to an
Agency which sale or transfer is not a Securitization Transaction or Whole
Loan
Transfer.
Agreement:
This
Seller's Warranties and Servicing Agreement and all exhibits hereof, amendments
hereof and supplements hereto.
ALTA:
The
American Land Title Association or any successor thereto.
Appraised
Value:
With
respect to any Mortgage Loan, the lesser of (i) the value set forth on the
appraisal made in connection with the origination of the related Mortgage Loan
as the value of the related Mortgaged Property, or (ii) the purchase price
paid
for the Mortgaged Property, provided, however, that in the case of a refinanced
Mortgage Loan, such value shall be based solely on the appraisal made in
connection with the origination of such Mortgage Loan.
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 or if the related Mortgage has been recorded in the name of MERS
or
its designee, such actions as are necessary to cause the Purchaser to be shown
as the owner of the related Mortgage on the records of MERS for purposes of
the
system of recording transfers of beneficial ownership of mortgages maintained
by
MERS, including assignment of the MIN which will appear either on the Mortgage
or the Assignment of Mortgage to MERS.
Assignment
of Mortgage Note and Pledge Agreement:
With
respect to a Cooperative Loan, an assignment of the Mortgage Note and Pledge
Agreement.
Assignment
of Proprietary Lease:
With
respect to a Cooperative Loan, an assignment of the Proprietary Lease sufficient
under the laws of the jurisdiction wherein the related Cooperative Apartment
is
located to effect the assignment of such Proprietary Lease.
Balloon
Loan:
A
Mortgage Loan for which the Monthly Payments will not fully amortize the loan
by
the end of the term, at which time the balance of the principal is due in a
lump
sum.
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 State of Iowa, Maryland, California, South Carolina
or New York are authorized or obligated by law or executive order to be
closed.
Buydown
Agreement:
An
agreement between the Company and a Mortgagor, or an agreement among the
Company, a Mortgagor and a seller of a Mortgaged Property or a third party
with
respect to a Mortgage Loan which provides for the application of Buydown
Funds.
2
Buydown
Funds:
In
respect of any Buydown Mortgage Loan, any amount contributed by the seller
of a
Mortgaged Property subject to a Buydown Mortgage Loan, the buyer of such
property, the Company or any other source, plus interest earned thereon, in
order to enable the Mortgagor to reduce the payments required to be made from
the Mortgagor’s funds in the early years of a Mortgage Loan.
Buydown
Mortgage Loan:
Any
Mortgage Loan in respect of which, pursuant to a Buydown Agreement, (i) the
Mortgagor pays less than the full monthly payments specified in the Mortgage
Note for a specified period, and (ii) the difference between the payments
required under such Buydown Agreement and the Mortgage Note is provided from
Buydown Funds.
Buydown
Period:
The
period of time when a Buydown Agreement is in effect with respect to a related
Buydown Mortgage Loan.
Closing
Date:
December 21, 2006.
Code:
The
Internal Revenue Code of 1986, as it may be amended from time to time or any
successor statute thereto, and applicable U.S. Department of the Treasury
regulations issued pursuant thereto.
Commission:
The
Securities and Exchange Commission.
Commitment
Letter:
That
certain letter agreement dated as of November 15, 2006 between the Company
and
the Purchaser.
Company:
▇▇▇▇▇
Fargo Bank, N.A., or its successor in interest or assigns, or any successor
to
the Company under this Agreement appointed as herein provided.
Company
Information:
As
defined in Section 9.01(e)(i)(A).
Company
Mortgage
Loan: A Mortgage Loan that has been underwritten in accordance with the
Underwriting Guidelines.
Condemnation
Proceeds:
All
awards or settlements in respect of a Mortgaged Property, whether permanent
or
temporary, partial or entire, by exercise of the power of eminent domain or
condemnation, to the extent not required to be released to a Mortgagor in
accordance with the terms of the related Mortgage Loan Documents.
Convertible
Mortgage Loan:
A
Mortgage Loan that by its terms and subject to certain conditions contained
in
the related Mortgage or Mortgage Note allows the Mortgagor to convert the
adjustable Mortgage Loan Interest Rate on such Mortgage Loan to a fixed Mortgage
Loan Interest Rate.
3
Cooperative:
The
entity that holds title (fee or an acceptable leasehold estate) to all of the
real property that the Project comprises, including the land, separate dwelling
units and all common areas.
Cooperative
Apartment:
The
specific dwelling unit relating to a Cooperative Loan.
Cooperative
Lien Search:
A
search for (a) federal tax liens, mechanics’ liens, lis pendens, judgments of
record or otherwise against (i) the Cooperative, (ii) the seller of the
Cooperative Apartment and (iii) the Company if the Cooperative Loan is a
refinanced Mortgage Loan, (b) filings of financing statements and (c) the deed
of the Project into the Cooperative.
Cooperative
Loan:
A
Mortgage Loan that is secured by Cooperative Shares and a Proprietary Lease
granting exclusive rights to occupy the related Cooperative
Apartment.
Cooperative
Shares:
The
shares of stock issued by a Cooperative, owned by the Mortgagor, and allocated
to a Cooperative Apartment.
Covered
Loan:
A
Mortgage Loan categorized as “Covered” pursuant to the Standard & Poor’s
Glossary for File Format for LEVELS® Version 5.7, Appendix E, revised July 1,
2006 (excluding New Jersey “Covered Home Loans” as that term is defined in
clause (1) of the definition of that term in the New Jersey Home Ownership
Security Act of 2002).
Custodial
Account:
The
separate account or accounts created and maintained pursuant to Section
4.04.
Custodial
Agreement:
The
agreement governing the retention of the originals of each Mortgage Note,
Mortgage, Assignment of Mortgage and other Mortgage Loan Documents, a form
of
which is annexed hereto as Exhibit B.
Custodial
Mortgage File:
With
respect to each Mortgage Loan, the file consisting of the Mortgage Loan
Documents listed as items 1 through 5 of Exhibit C attached hereto, which have
been delivered to the Custodian as of the Closing Date.
Custodian:
The
custodian under the Custodial Agreement, or its successor in interest or
assigns, or any successor to the Custodian under the Custodial Agreement as
provided therein.
Cut-off
Date:
December 1, 2006.
Data
File:
The
electronic data file prepared by the Company and delivered to the Purchaser
including the data fields set forth on Exhibit D with respect to each Mortgage
Loan.
Deleted
Mortgage Loan:
A
Mortgage Loan which is repurchased by the Company in accordance with the terms
of this Agreement and which is, in the case of a substitution pursuant to
Section 3.03, replaced or to be replaced with a Qualified Substitute Mortgage
Loan.
4
Depositor:
The
depositor, as such term is defined in Regulation AB, with respect to any
Securitization Transaction.
Determination
Date:
The
Business Day immediately preceding the related Remittance Date.
Document
Transfer Event:
The day
on which (i) the Company or any successor thereto is no longer the servicer
of
any of the Mortgage Loans, (ii) the senior, unsecured long-term debt rating
of
▇▇▇▇▇ Fargo & Company is less than “BBB-“ by Fitch or (iii) any Rating
Agency required the company to deliver the Retained Mortgage Files to the
Custodian.
Due
Date:
The day
of the month on which the Monthly Payment is due on a Mortgage Loan, exclusive
of any days of grace.
Due
Period:
With
respect to each Remittance Date, the period commencing on the second day of
the
month preceding the month of the Remittance Date and ending on the first day
of
the month of the Remittance Date.
Errors
and Omissions Insurance Policy:
An
errors and omissions insurance policy to be maintained by the Company pursuant
to Section 4.12.
Escrow
Account:
The
separate account or accounts created and maintained pursuant to Section 4.06.
Escrow
Payments:
With
respect to any Mortgage Loan, the amounts constituting ground rents, taxes,
assessments, water rates, sewer rents, municipal charges, mortgage insurance
premiums, fire and hazard insurance premiums, condominium charges, and any
other
payments required to be escrowed by the Mortgagor with the mortgagee pursuant
to
the Mortgage or any other related document.
Event
of Default:
Any one
of the conditions or circumstances enumerated in Section 10.01.
Exchange
Act:
The
Securities and Exchange Act of 1934, as amended.
▇▇▇▇▇▇
▇▇▇:
The
Federal National Mortgage Association, or any successor thereto.
FDIC:
The
Federal Deposit Insurance Corporation, or any successor thereto.
Fidelity
Bond:
A
fidelity bond to be maintained by the Company pursuant to Section
4.12.
Financing
Statement:
With
respect to each Cooperative Loan, a financing statement in the form of a UCC-1
filed pursuant to the Uniform Commercial Code to perfect a security interest
in
the Cooperative Shares and Pledge Instruments.
5
First
Lien:
With
respect to each Mortgaged Property, the lien on the mortgage, deed of trust
or
other instrument securing a Mortgage Note which creates a first lien on the
Mortgaged Property.
First
Remittance Date:
January
18, 2007.
▇▇▇▇▇▇▇
Mac:
The
Federal Home Loan Mortgage Corporation , or any successor thereto.
Gross
Margin:
With
respect to each Adjustable Rate Mortgage Loan, the fixed percentage amount
set
forth in the related Mortgage Note which is added to the Index in order to
determine the related Mortgage Interest Rate, as set forth in the Mortgage
Loan
Schedule.
High
Cost Loan:
A
Mortgage Loan classified as (a) a “high cost” loan under the Home Ownership and
Equity Protection Act of 1994, (b) a “high cost home,” “threshold,” “covered,”
(excluding New Jersey “Covered Home Loans” as that term is defined in clause (1)
of the definition of that term in the New Jersey Home Ownership Security Act
of
2002), “high risk home,” “predatory” or similar loan under any other applicable
state, federal or local law or (c) a “High Cost” pursuant to the Standard &
Poor’s Glossary for File Format for LEVELS® Version 5.7 Appendix E, revised July
1, 2006.
Index:
With
respect to any Adjustable Rate Mortgage Loan, the index identified on the
Mortgage Loan Schedule and set forth in the related Mortgage Note for the
purpose of calculating the interest thereon.
Insurance
Proceeds:
With
respect to each Mortgage Loan, proceeds of insurance policies insuring the
Mortgage Loan or the related Mortgaged Property.
Interest
Only Mortgage Loan:
A
Mortgage Loan for which an interest-only payment feature is allowed during
the
interest-only period set forth in the related Mortgage Note.
Lender
Paid Mortgage Insurance Policy or LPMI Policy:
A PMI
Policy for which the Company pays all premiums from its own funds, without
reimbursement therefore.
Liquidation
Proceeds:
Cash
received in connection with the liquidation of a defaulted Mortgage Loan,
whether through the sale or assignment of such Mortgage Loan, trustee's sale,
foreclosure sale or otherwise, or the sale of the related Mortgaged Property
if
the Mortgaged Property is acquired in satisfaction of the Mortgage
Loan.
Loan-to-Value
Ratio or LTV:
With
respect to any Mortgage Loan, the ratio of the original loan amount of the
Mortgage Loan at its origination (unless otherwise indicated) to the Appraised
Value of the Mortgaged Property.
Master
Servicer:
With
respect to any Securitization Transaction, the “master servicer,” if any,
identified in the related transaction documents.
6
Maximum
Mortgage Interest Rate:
With
respect to each Adjustable Rate Mortgage Loan, a rate that is set forth on
the
Mortgage Loan Schedule and in the related Mortgage Note which is the maximum
interest rate to which the Mortgage Interest Rate on such Mortgage Loan may
be
increased on any Adjustment Date.
MERS:
Mortgage Electronic Registration Systems, Inc., a Delaware corporation, or
any
successor in interest thereto.
MERS
Mortgage Loan:
Any
Mortgage Loan as to which the related Mortgage or Assignment of Mortgage has
been registered with MERS on the MERS System
MERS
System:
The
system of recording transfers of mortgages electronically maintained by
MERS.
MIN:
The
eighteen digit Mortgage Identification Number permanently assigned by
MERS.
Monthly
Advance:
The
portion of each Monthly Payment that is delinquent with respect to each Mortgage
Loan at the close of business on the Determination Date required to be advanced
by the Company pursuant to Section 5.03 on the Business Day immediately
preceding the Remittance Date of the related month.
Monthly
Payment:
The
scheduled monthly payment of principal and interest, or in the case of an
Interest Only Mortgage Loan, payments of (i) interest or (ii) principal and
interest, as applicable, on a Mortgage Loan.
▇▇▇▇▇’▇:
▇▇▇▇▇’▇
Investor Service, Inc.
Mortgage:
The
mortgage, deed of trust or other instrument securing a Mortgage Note, which
creates a First Lien (as indicated on the Data File) on an unsubordinated estate
in fee simple in real property securing the Mortgage Note, or the Pledge
Agreement securing the Mortgage Note for a Cooperative Loan.
Mortgage
Impairment Insurance Policy:
A
mortgage impairment or blanket hazard insurance policy as described in Section
4.11.
Mortgage
Interest Rate:
The
annual rate of interest borne on a Mortgage Note from time to time in accordance
with the provisions of the Mortgage Note.
Mortgage
Loan:
An
individual mortgage loan which is the subject of this Agreement, each Mortgage
Loan originally sold and subject to this Agreement being identified on the
Mortgage Loan Schedule, which Mortgage Loan includes without limitation the
Custodial Mortgage File, the Retained 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. The Mortgage
Loans shall include the Adjustable Rate Mortgage Loans, the Company Mortgage
Loans and the Third-Party Mortgage Loans.
7
Mortgage
Loan Documents:
With
respect to a Mortgage Loan, the documents listed as items 1 through 10 of
Exhibit C attached hereto.
Mortgage
Loan Remittance Rate:
With
respect to each Mortgage Loan, the annual rate of interest remitted to the
Purchaser, which shall be equal to the related Mortgage Interest Rate minus
the
Servicing Fee Rate.
Mortgage
Loan Schedule:
A
schedule of Mortgage Loans annexed hereto as Exhibit A, such schedule setting
forth the following information with respect to each Mortgage Loan: (1) the
Company’s Mortgage Loan number; (2) the city, state and zip code of the
Mortgaged Property; (3) a code indicating whether the Mortgaged Property is
a
single family residence, two-family residence, three-family residence,
four-family residence, Cooperative Apartment, planned unit development or
condominium; (4) the Mortgage Interest Rate as of the Cut-off Date; (5) the
Mortgage Loan Remittance Rate as of the Cut-off Date; (6) the Monthly Payment
as
of the Cut-off Date; (7) the Gross Margin; (8) the original term to maturity;
(9) the scheduled maturity date; (10) the principal balance of the Mortgage
Loan
as of the Cut-off Date after deduction of payments of principal due on or before
the Cut-off Date whether or not collected; (11) the Loan-to-Value Ratio; (12)
the next Adjustment Date immediately following the Cut-off Date; (13) the
lifetime Periodic Interest Rate Cap; (14) the Index; (15) the type of Adjustable
Rate Mortgage Loan (i.e., 6 Month LIBOR, 1/1, 3/1, 5/1, etc.); (16) the Maximum
Mortgage Interest Rate; (17) the first Adjustment Date immediately following
origination; (18) whether the Mortgage Loan is convertible or not; (19) a code
indicating the mortgage guaranty insurance company; and (20) the Servicing
Fee
Rate.
Mortgage
Note:
The
note or other evidence of the indebtedness of a Mortgagor secured by a Mortgage,
including any addendum, attachment, allonge, amendment, supplement or
modification thereto.
Mortgaged
Property:
The
real property securing repayment of the debt evidenced by a Mortgage Note,
or
with respect to a Cooperative Loan, the Cooperative Apartment.
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 the President or a Vice President or an Assistant Vice President and
certified by the Treasurer or the Secretary or one of the Assistant Treasurers
or Assistant Secretaries of the Company, and delivered to the Purchaser as
required by this Agreement.
Opinion
of Counsel:
A
written opinion of counsel, who may be an employee of the Company, reasonably
acceptable to the Purchaser.
8
Periodic
Interest Rate Cap:
As to
each Adjustable Rate Mortgage Loan, the maximum increase or decrease in the
Mortgage Interest Rate on any Adjustment Date pursuant to the terms of the
Mortgage Note.
Person:
Any
individual, corporation, partnership, joint venture, limited liability company,
association, joint-stock company, trust, unincorporated organization, government
or any agency or political subdivision thereof.
Pledge
Agreement:
With
respect to a Cooperative Loan, the specific agreement creating a first lien
on
and pledge of the Cooperative Shares and the appurtenant Proprietary
Lease.
Pledge
Instruments:
With
respect to a Cooperative Loan, the Stock Power, the Assignment of the
Proprietary Lease and the Assignment of the Mortgage Note and Pledge
Agreement.
PMI
Policy:
A
policy of primary mortgage guaranty insurance evidenced by an electronic form
and certificate number issued by a Qualified Insurer, as required by this
Agreement with respect to certain Mortgage Loans. The premiums on a PMI Policy
may be paid (i) by the Mortgagor or (ii) by the Company from its own funds,
without reimbursement, in the case of an LPMI Policy. If the premiums are paid
by the Company, the PMI Policy is an LPMI Policy.
Prepayment
Penalty:
Payments, penalties, fees or charges calculated pursuant to the Mortgage Note
and due pursuant to the terms of the Mortgage Loan as the result of a Principal
Prepayment of the Mortgage Loan, not otherwise due thereon in respect of
principal or interest.
Prime
Rate:
The
prime rate announced to be in effect from time to time, as published as the
average rate in The
Wall Street Journal.
Principal
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 and which is not accompanied by an amount of interest representing
scheduled interest due on any date or dates in any month or months subsequent
to
the month of prepayment.
Principal
Prepayment Period:
The
calendar month preceding the month in which the related Remittance Date
occurs.
Project:
With
respect to a Cooperative Loan, all real property owned by the related
Cooperative including the land, separate dwelling units and all common
areas.
Proprietary
Lease:
With
respect to a Cooperative Loan, a lease on a Cooperative Apartment evidencing
the
possessory interest of the Mortgagor in such Cooperative Apartment.
Purchase
Price:
The
purchase price for the Mortgage Loans as specified in the related Commitment
Letter and as may be adjusted pursuant to the Commitment Letter.
9
Purchaser:
Greenwich Capital Financial Products, Inc., or its successor in interest or
any
successor to the Purchaser under this Agreement as herein provided.
Qualified
Correspondent:
Any
Person from which the Company purchased Mortgage Loans, provided that the
following conditions are satisfied: (i) such Mortgage Loans were originated
pursuant to an agreement between the Company and such Person that contemplated
that such Person would underwrite mortgage loans from time to time, for sale
to
the Company, in accordance with underwriting guidelines designated by the
Company (“Designated Guidelines”) or guidelines that do not vary materially from
such Designated Guidelines; (ii) such Mortgage Loans were in fact underwritten
as described in clause (i) above and were acquired by the Company within
one-hundred eighty (180) days after origination; (iii) either (x) the Designated
Guidelines were, at the time such Mortgage Loans were originated, used by the
Company in origination of mortgage loans of the same type as the Mortgage Loans
for the Company’s own account or (y) the Designated Guidelines were, at the time
such Mortgage Loans were underwritten, designated by the Company on a consistent
basis for use by lenders in originating mortgage loans to be purchased by the
Company; and (iv) the Company employed, at the time such Mortgage Loans were
acquired by the Company, pre-purchase or post-purchase quality assurance
procedures (which may involve, among other things, review of a sample of
mortgage loans purchased during a particular time period or through particular
channels) designed to ensure that Persons from which it purchased mortgage
loans
properly applied the underwriting criteria designated by the
Company.
Qualified
Depository:
A
deposit account or accounts maintained with a federal or state chartered
depository institution the deposits in which are insured by the FDIC to the
applicable limits and the short-term unsecured debt obligations of which (or,
in
the case of a depository institution that is a subsidiary of a holding company,
the short-term unsecured debt obligations of such holding company) are rated
A-1
by S&P or Prime-1 by Moody’s (or a comparable rating if another rating
agency is specified by the Purchaser by written notice to the Company) at the
time any deposits are held on deposit therein.
Qualified
Insurer:
A
mortgage guaranty insurance company duly authorized and licensed where required
by law to transact mortgage guaranty insurance business and approved as an
insurer by ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac.
Qualified
Substitute Mortgage Loan:
A
mortgage loan eligible to be substituted by the Company for a Deleted Mortgage
Loan which must, on the date of such substitution, (i) have an outstanding
principal balance, after deduction of all scheduled payments due in the month
of
substitution (or in the case of a substitution of more than one mortgage loan
for a Deleted Mortgage Loan, an aggregate principal balance), not in excess
of
the Stated Principal Balance of the Deleted Mortgage Loan; (ii) have a Mortgage
Loan Remittance Rate not less than, and not more than one percent (1%) greater,
than the Mortgage Loan Remittance Rate of the Deleted Mortgage Loan; (iii)
have
a remaining term to maturity not greater than and not more than one year less
than that of the Deleted Mortgage Loan; (iv) be of the same type as the Deleted
Mortgage Loan and (v) comply with each representation and warranty set forth
in
Sections 3.01 and 3.02.
10
Rating
Agency:
Each of
Fitch Ratings, Moody’s, S&P and Dominion Bond Rating Service, Inc. or any
successor thereto.
Recognition
Agreement:
An
agreement whereby a Cooperative and a lender with respect to a Cooperative
Loan
(i) acknowledge that such lender may make, or intends to make, such Cooperative
Loan, and (ii) make certain agreements with respect to such Cooperative
Loan.
Reconstitution:
Any
Securitization Transaction, Agency Sale or Whole Loan Transfer.
Reconstitution
Agreement:
The
agreement or agreements entered into by the Company and the Purchaser and/or
certain third parties on the Reconstitution Date or Dates with respect to any
or
all of the Mortgage Loans serviced hereunder, in connection with a Whole Loan
Transfer, Agency Sale or Securitization Transaction.
Reconstitution
Date:
The
date on which any or all of the Mortgage Loans serviced under this Agreement
shall be reconstituted as part of a Securitization Transaction, Whole Loan
Transfer or Agency Sale pursuant to Section 9.01 hereof. The Reconstitution
Date
shall be such date which the Purchaser shall designate.
Regulation
AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
REMIC:
A "real
estate mortgage investment conduit" within the meaning of Section 860D of the
Code.
REMIC
Provisions:
Provisions of the federal income tax law relating to a REMIC, which appear
at
Section 860A through 860G of Subchapter M of Chapter 1, Subtitle A of the Code,
and related provisions, regulations, rulings or pronouncements promulgated
thereunder, as the foregoing may be in effect from time to time.
Remittance
Date:
The
18th day (or if such 18th day is not a Business Day, the first Business Day
immediately following) of any month, beginning with the First Remittance
Date.
REO
Disposition:
The
final sale by the Company of any REO Property.
REO
Disposition Proceeds:
All
amounts received with respect to an REO Disposition pursuant to Section
4.16.
REO
Property:
A
Mortgaged Property acquired by the Company on behalf of the Purchaser through
foreclosure or by deed in lieu of foreclosure, as described in Section
4.16.
11
Repurchase
Price:
A price
equal to (i) the Stated Principal Balance of the Mortgage Loan as of the date
on
which such repurchase takes place, plus (ii) interest on such Stated Principal
Balance at the Mortgage Loan Remittance Rate from the date on which interest
has
last been paid and distributed to the Purchaser through the last day of the
month in which such repurchase takes place, 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.
Retained
Mortgage File:
With
respect to each Mortgage Loan, the file consisting of the Mortgage Loan
Documents listed as items 6 through 10 of Exhibit C attached hereto, which
is
retained by the Company for the benefit of the Purchaser in a custodial capacity
only.
S&P:
Standard & Poor’s Ratings Services.
Securities
Act:
The
Securities Act of 1933, as amended.
Securitization
Transaction:
Any
transaction involving either (a) a sale or other transfer of some or all of
the
Mortgage Loans directly or indirectly to an issuing entity in connection with
an
issuance of publicly offered or privately placed, rated or unrated
mortgage-backed securities or (b) an issuance of publicly offered or privately
placed, rated or unrated mortgage-backed 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 9.01(e)(iii).
Servicing
Advances:
All
customary, reasonable and necessary "out of pocket" costs and expenses other
than Monthly Advances (including reasonable attorney's fees and disbursements)
incurred in the performance by the Company of its servicing obligations,
including, but not limited to, the cost of (a) the preservation, restoration
and
protection of the Mortgaged Property, (b) any enforcement or judicial
proceedings, including foreclosures, (c) the management and liquidation of
any
REO Property and (d) compliance with the obligations under Section 4.08
(excluding the Company’s obligation to pay the premiums on LPMI Policies) and
Section 4.10.
Servicing
Criteria:
The
“servicing criteria” set forth in Item 1122(d) of Regulation AB, as such may be
amended from time to time.
Servicing
Fee:
With
respect to each Mortgage Loan, the amount of the annual fee the Purchaser shall
pay to the Company, which shall, for a period of one full month, be equal to
one-twelfth of the product of (a) the Servicing Fee Rate and (b) the outstanding
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 received. The obligation
of
the Purchaser to pay the Servicing Fee is limited to, and the Servicing Fee
is
payable solely from, the interest portion (including recoveries with respect
to
interest from Liquidation Proceeds, to the extent permitted by Section 4.05)
of
such Monthly Payment collected by the Company, or as otherwise provided under
Section 4.05.
12
Servicing
Fee Rate:
0.250%
per annum per Mortgage Loan.
Servicing
File:
With
respect to each Mortgage Loan, the file consisting of the items 11 through
26 of
Exhibit C attached hereto plus copies of all Mortgage Loan Documents, which
are
retained by the Company.
Servicing
Officer:
Any
officer of the Company involved in or responsible for the administration and
servicing of the Mortgage Loans whose name appears on a list of servicing
officers furnished by the Company to the Purchaser upon request, as such list
may from time to time be amended.
Stated
Principal Balance:
As to
each Mortgage Loan and as of any date of determination, (i) the principal
balance of the Mortgage Loan at the Cut-off Date after giving effect to payments
of principal due on or before such date, whether or not received, minus (ii)
all
amounts previously distributed to the Purchaser with respect to the related
Mortgage Loan representing payments or recoveries of principal or advances
in
lieu thereof.
Static
Pool Information:
Static
pool information as described in Item 1105(a)(1)-(3) and 1105(c) of Regulation
AB.
Stock
Certificate:
With
respect to a Cooperative Loan, a certificate evidencing ownership of the
Cooperative Shares issued by the Cooperative.
Stock
Power:
With
respect to a Cooperative Loan, an assignment of the Stock Certificate or an
assignment of the Cooperative Shares issued by the Cooperative.
Subcontractor:
Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of Mortgage Loans but performs one or more
discrete functions identified in Item 1122(d) of Regulation AB with respect
to
Mortgage Loans under the direction or authority of the Company or a
Subservicer.
Subservicer:
Any
Person that services Mortgage Loans on behalf of the Company or any Subservicer
and is responsible for the performance (whether directly or through Subservicers
or Subcontractors) of a substantial portion of the material servicing functions
required to be performed by the Company under this Agreement or any
Reconstitution Agreement that are identified in Item 1122(d) of Regulation
AB.
Third-Party
Mortgage Loan:
A
Mortgage Loan that has been underwritten in accordance with the related
Third-Party Underwriting Guidelines.
Third-Party
Originator:
Each
Person, other than a Qualified Correspondent, that originated Mortgage Loans
acquired by the Company.
13
Third-Party
Underwriting Guidelines:
The
underwriting guidelines of a Third-Party Originator, applicable to the related
Third-Party Mortgage Loans, as provided to the Purchaser by the Company.
Time$aver®
Mortgage Loan:
A
Mortgage Loan which has been refinanced pursuant to a Company program that
allows a rate/term refinance of an existing Company-serviced loan with minimal
documentation.
Underwriting
Guidelines:
The
underwriting guidelines of the Company, a copy of which has been delivered
by
the Company to the Purchaser.
Unverified
Information:
With
respect to the Mortgage Loans listed on the attached Exhibit D, information
regarding the Mortgagor’s income, source of income, or assets that is stated on
the loan application by the Mortgagor but not verified in the origination
process, pursuant to the applicable Underwriting Guidelines.
Whole
Loan Transfer:
Any
sale or transfer of some or all of the Mortgage Loans by the Purchaser to a
third party, which sale or transfer is not a Securitization Transaction or
Agency Sale.
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS; POSSESSION OF CUSTODIAL MORTGAGE FILES; BOOKS AND RECORDS;
CUSTODIAL AGREEMENT; DELIVERY OF DOCUMENTS
| Section 2.01 |
Conveyance
of Mortgage Loans; Possession of Custodial Mortgage Files;
Maintenance
of Retained Mortgage Files and Servicing Files.
|
The
Company, simultaneously with the execution and delivery of this Agreement,
does
hereby sell, transfer, assign, set over and convey to the Purchaser, without
recourse, but subject to the terms of this Agreement, all the right, title
and
interest of the Company in and to the Mortgage Loans. Pursuant to Section 2.03,
the Company shall deliver the Custodial Mortgage File for each Mortgage Loan
to
the Custodian.
The
contents of each Retained Mortgage File not delivered to the Custodian are
and
shall be held in trust by the Company for the benefit of the Purchaser as the
owner thereof. Additionally and separate to the Retained Mortgage File, the
Company shall maintain a Servicing File consisting of a copy of the contents
of
the Custodial Mortgage File and the Retained Mortgage File. The possession
of
each Servicing File and Retained Mortgage File held by the Company is at the
will of the Purchaser for the sole purpose of servicing the related Mortgage
Loan, and such retention and possession by the Company is in a custodial
capacity only. Upon the sale of the Mortgage Loans the ownership of each
Mortgage Note, the related Mortgage and the related Custodial Mortgage File,
Retained Mortgage File and Servicing File shall vest immediately in the
Purchaser, and the ownership of all records and documents with respect to the
related Mortgage Loan prepared by or which come into the possession of the
Company shall vest immediately in the Purchaser and shall be retained and
maintained by the Company, in trust, at the will of the Purchaser and only
in
such custodial capacity. The Company shall release its custody of the contents
of any Retained Mortgage File and Servicing File only in accordance with written
instructions from the Purchaser or within sixty (60) days of the occurrence
of a
Document Transfer Event, unless such release is required as incidental to the
Company's servicing of the Mortgage Loans or is in connection with a repurchase
of any Mortgage Loan pursuant to Section 3.03 or 6.02. All such costs associated
with the release, transfer and re-delivery of
any
Retained Mortgage Files and Servicing Files between the parties
shall be
the responsibility of the party in possession of such file or files.
Notwithstanding
the foregoing, if such Retained Mortgage File(s) is being delivered by the
Company pursuant to a Document Transfer Event, the Company shall be responsible
for such delivery expenses.
14
In
addition, in connection with the assignment of any MERS Mortgage Loan, the
Company agrees that it will cause, the MERS® System to indicate that such
Mortgage Loans have been assigned by the Company to the Purchaser in accordance
with this Agreement by including (or deleting, in the case of Mortgage Loans
which are repurchased in accordance with this Agreement) in such computer files
the information required by the MERS® System to identify the Purchaser as
beneficial owner of such Mortgage Loans.
Section
2.02 Books
and Records; Transfers of Mortgage Loans.
From
and
after the sale of the Mortgage Loans to the Purchaser all rights arising out
of
the Mortgage Loans, including, but not limited to, all funds received on or
in
connection with the Mortgage Loans, shall be received and held by the Company
in
trust for the benefit of the Purchaser as owner of the Mortgage Loans, and
the
Company shall retain record title to the related Mortgages for the sole purpose
of facilitating the servicing and the supervision of the servicing of the
Mortgage Loans.
The
sale
of each Mortgage Loan shall be reflected on the Company's balance sheet and
other financial statements as a sale of assets by the Company. The Company
shall
be responsible for maintaining, and shall maintain, a complete set of books
and
records for each Mortgage Loan which shall be marked clearly to reflect the
ownership of each Mortgage Loan by the Purchaser. In particular, the Company
shall maintain in its possession, available for inspection by the Purchaser,
or
its designee, and shall deliver to the Purchaser upon demand, evidence of
compliance with all federal, state and local laws, rules and regulations, and
requirements of ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac, including but not limited to
documentation as to the method used in determining the applicability of the
provisions of the Flood Disaster Protection Act of 1973, as amended, to the
Mortgaged Property, documentation evidencing insurance coverage and eligibility
of any condominium project for approval by ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac and records
of periodic inspections as required by Section 4.13. To the extent that original
documents are not required for purposes of realization of Liquidation Proceeds
or Insurance Proceeds, documents maintained by the Company may be in the form
of
microfilm or microfiche or such other reliable means of recreating original
documents, including but not limited to, optical imagery techniques so long
as
the Company complies with the requirements of the ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac
Selling and Servicing Guide, as amended from time to time.
15
The
Company shall maintain with respect to each Mortgage Loan and shall make
available for inspection by the Purchaser or its designee the related Retained
Mortgage File and Servicing File during the time the Purchaser retains ownership
of a Mortgage Loan and thereafter in accordance with applicable laws and
regulations.
The
Company shall keep at its servicing office books and records in which, subject
to such reasonable regulations as it may prescribe, the Company shall note
transfers of Mortgage Loans. No transfer of a Mortgage Loan shall be recognized
by the Company hereunder unless such transfer is in compliance with the terms
hereof. For the purposes of this Agreement, the Company shall be under no
obligation to deal with any Person with respect to this Agreement or the
Mortgage Loans unless the books and records show such Person as the owner of
the
Mortgage Loan. The Purchaser may, subject to the terms of this Agreement, sell
and transfer one or more of the Mortgage Loans. The Purchaser shall advise
the
Company of the transfer. Upon receipt of notice of the transfer, the Company
shall ▇▇▇▇ its books and records to reflect the ownership of the Mortgage Loans
of such assignee, and shall release the previous Purchaser from its obligations
hereunder with respect to the Mortgage Loans sold or transferred. Such
notification of a transfer shall include a final loan schedule which shall
be
received by the Company no fewer than five (5) Business Days before the last
Business Day of the month. If such notification is not received as specified
above, the Company’s duties to remit and report as required by Section 5 shall
begin with the next Due Period.
Upon
request from the Purchaser, at the Purchaser’s expense, the Company shall
deliver no later than thirty (30) days after such request any Retained Mortgage
File(s) or document(s) therein, or copies thereof, to the Purchaser at the
direction of the Purchaser. Notwithstanding the foregoing, if such Retained
Mortgage File(s) is being delivered pursuant to a Document Transfer Event,
the
Company shall be responsible for such delivery expenses. The Purchaser shall
return any Retained Mortgage File(s) or document(s) therein delivered pursuant
to this Section no later than ten (10) days after receipt thereof. In the event
that the Company fails to make delivery of the requested Retained Mortgage
File
or document therein, or copies thereof, as required under this Section 2.02,
the
Company shall repurchase, pursuant to Section 3.03 of this Agreement, the
related Mortgage Loan within thirty (30) days of a request to do so by the
Purchaser.
Section
2.03 Custodial
Agreement; Delivery of Documents.
The
Company has delivered to the Custodian those Mortgage Loan Documents contained
in the Custodial Mortgage File as required by this Agreement with respect to
each Mortgage Loan.
The
Custodian has certified its receipt of all such Mortgage Loan Documents in
each
Custodial Mortgage File required to be delivered pursuant to this Agreement,
as
evidenced by the trust receipt or initial certification of the Custodian in
the
form annexed to the Custodial Agreement. The Purchaser will be responsible
for
the fees and expenses of the Custodian.
16
The
Company shall be responsible for paying any costs in connection with recording
the initial Assignments of Mortgage, if necessary or at the direction of the
Purchaser. The Purchaser shall be responsible for paying any costs in connection
with any subsequent recordings for the Assignments of Mortgage.
The
Company shall forward to the Custodian original documents evidencing an
assumption, modification, consolidation or extension of any Mortgage Loan
entered into in accordance with Section 4.01 or 6.01 within one week of their
execution, provided, however, that the Company shall provide the Custodian
with
a certified true copy of any such document submitted for recordation within
ten
(10) days of its execution, and shall provide the original of any document
submitted for recordation or a copy of such document certified by the
appropriate public recording office to be a true and complete copy of the
original within sixty days of its submission for recordation.
In
the
event the public recording office is delayed in returning any original document,
which the Company is required to deliver to the Custodian or which the Company
is required to maintain in the Retained Mortgage File, the Company shall deliver
to the Custodian within 240 days of its submission for recordation, a copy
of
such document and an Officer's Certificate, which shall (i) identify the
recorded document; (ii) state that the recorded document has not been delivered
to the Custodian due solely to a delay by the public recording office, (iii)
state the amount of time generally required by the applicable recording office
to record and return a document submitted for recordation, and (iv) specify
the
date the applicable recorded document will be delivered to the Custodian. The
Company will be required to deliver the document to the Custodian by the date
specified in (iv) above. An extension of the date specified in (iv) above may
be
requested from the Purchaser, which consent shall not be unreasonably
withheld.
Prior
to
Company’s receipt of the Purchase Price, the Purchaser shall cause the Custodian
to act as bailee for the sole and exclusive benefit of the Company pursuant
to
the Custodial Agreement and act only in accordance with Company’s instructions.
Upon the Company’s receipt of the Purchase Price, the Company shall provide
notification to the Custodian to release the ownership of the Mortgage Loan
Documents contained in the Custodial Mortgage File to the Purchaser. Such
notification shall be in a form of a written notice by facsimile or other
electronic media, with a copy sent to the Purchaser. Subsequent to such release,
such Mortgage Loan Documents shall be retained by the Custodian for the benefit
of the Purchaser. All Mortgage Loan Documents related to Mortgage Loans not
purchased by the Purchaser on the Closing Date shall be maintained by the
Custodian for the benefit of the Company and shall be returned to the Company
within two (2) Business Days after the Closing Date.
In
the
event that new, replacement, substitute or additional Stock Certificates are
issued with respect to existing Cooperative Shares, the Company immediately
shall deliver to the Custodian the new Stock Certificates, together with the
related Stock Powers in blank. Such new Stock Certificates shall be subject
to
the related Pledge Instruments and shall be subject to all of the terms,
covenants and conditions of this Agreement.
17
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES REMEDIES AND BREACH
Section
3.01 Company
Representations and Warranties.
The
Company hereby represents and warrants to the Purchaser that, as of the Closing
Date:
|
(a)
|
Due
Organization and Authority.
|
|
The
Company is a national banking association duly organized, validly
existing
and in good standing under the laws of the United States and has
all
licenses necessary to carry on its business as now being conducted
and is
licensed, qualified and in good standing in each state where a Mortgaged
Property is located if the laws of such state require licensing or
qualification in order to conduct business of the type conducted
by the
Company, and in any event the Company is in compliance with the laws
of
any such state to the extent necessary to ensure the enforceability
of the
related Mortgage Loan and the servicing of such Mortgage Loan in
accordance with the terms of this Agreement; the Company has the
full
corporate power and authority to execute and deliver this Agreement
and to
perform in accordance herewith; the execution, delivery and performance
of
this Agreement (including all instruments of transfer to be delivered
pursuant to this Agreement) by the Company and the consummation of
the
transactions contemplated hereby have been duly and validly authorized;
this Agreement evidences the valid, binding and enforceable obligation
of
the Company; and all requisite corporate action has been taken by
the
Company to make this Agreement valid and binding upon the Company
in
accordance with its terms;
|
|
(b)
|
Ordinary
Course of Business.
|
|
The
consummation of the transactions contemplated by this Agreement are
in the
ordinary course of business of the Company, who is in the business
of
selling and servicing loans, and the transfer, assignment and conveyance
of the Mortgage Notes and the Mortgages by the Company pursuant to
this
Agreement are not subject to the bulk transfer or any similar statutory
provisions in effect in any applicable
jurisdiction;
|
|
(c)
|
No
Conflicts.
|
18
|
Neither
the execution and delivery of this Agreement, the acquisition of
the
Mortgage Loans by the Company, the sale of the Mortgage Loans to
the
Purchaser or the transactions contemplated hereby, nor the fulfillment
of
or compliance with the terms and conditions of this Agreement will
conflict with or result in a breach of any of the terms, articles
of
incorporation or by-laws or any legal restriction or any agreement
or
instrument to which the Company is now a party or by which it is
bound, or
constitute a default or result in the violation of any law, rule,
regulation, order, judgment or decree to which the Company or its
property
is subject, or impair the ability of the Purchaser to realize on
the
Mortgage Loans, or impair the value of the Mortgage
Loans;
|
|
(d)
|
Ability
to Service.
|
|
The
Company is an approved seller/servicer of conventional residential
mortgage loans for ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac, with the facilities,
procedures, and experienced personnel necessary for the sound servicing
of
mortgage loans of the same type as the Mortgage Loans. The Company
is a
HUD approved mortgagee and is in good standing to sell mortgage loans
to
and service mortgage loans for ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac, and no
event has
occurred, including but not limited to a change in insurance coverage,
which would make the Company unable to comply with ▇▇▇▇▇▇ Mae or
▇▇▇▇▇▇▇
Mac eligibility requirements or which would require notification
to either
▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac;
|
|
(e)
|
Reasonable
Servicing Fee.
|
|
The
Company acknowledges and agrees that the Servicing Fee represents
reasonable compensation for performing such services and that the
entire
Servicing Fee shall be treated by the Company, for accounting and
tax
purposes, as compensation for the servicing and administration of
the
Mortgage Loans pursuant to this
Agreement;
|
|
(f)
|
Ability
to Perform.
|
|
The
Company does not believe, nor does it have any reason or cause to
believe,
that it cannot perform each and every covenant contained in this
Agreement. The Company is solvent and the sale of the Mortgage Loans
will
not cause the Company to become insolvent. The sale of the Mortgage
Loans
is not undertaken to hinder, delay or defraud any of the Company's
creditors;
|
|
(g)
|
No
Litigation Pending.
|
|
There
is no action, suit, proceeding or investigation pending or threatened
against the Company which, either in any one instance or in the aggregate,
may result in any material adverse change in the business, operations,
financial condition, properties or assets of the Company, or in any
material impairment of the right or ability of the Company to carry
on its
business substantially as now conducted, or in any material liability
on
the part of the Company, or which would draw into question the validity
of
this Agreement or the Mortgage Loans or of any action taken or to
be
contemplated herein, or which would be likely to impair materially
the
ability of the Company to perform under the terms of this
Agreement;
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19
|
(h)
|
No
Consent Required.
|
|
No
consent, approval, authorization or order of any court or governmental
agency or body is required for the execution, delivery and performance
by
the Company of or compliance by the Company with this Agreement or
the
sale of the Mortgage Loans as evidenced by the consummation of the
transactions contemplated by this Agreement, or if required, such
approval
has been obtained prior to the Closing
Date;
|
|
(i)
|
Selection
Process.
|
The
Mortgage Loans were selected from among the outstanding fixed rate one- to
four-family mortgage loans in the Company's mortgage banking portfolio at the
Closing Date as to which the representations and warranties set forth in Section
3.02 could be made and such selection was not made in a manner so as to affect
adversely the interests of the Purchaser;
|
(j)
|
No
Untrue Information.
|
|
Neither
this Agreement nor any statement, report or other document furnished
or to
be furnished pursuant to this Agreement or in connection with the
transactions contemplated hereby contains any untrue statement of
fact or
omits to state a fact necessary to make the statements contained
therein
not misleading;
|
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(k)
|
Sale
Treatment.
|
|
The
Company has determined that the disposition of the Mortgage Loans
pursuant
to this Agreement will be afforded sale treatment for accounting
and tax
purposes;
|
|
(l)
|
No
Material Change.
|
|
There
has been no material adverse change in the business, operations,
financial
condition or assets of the Company since the date of the Company’s most
recent financial statements;
|
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(m)
|
No
Brokers’ Fees.
|
20
|
The
Company has not dealt with any broker, investment banker, agent or
other
Person that may be entitled to any commission or compensation in
the
connection with the sale of the Mortgage
Loans;
|
|
(n)
|
MERS.
|
The
Company is a member of MERS in good standing; and
|
(o)
|
Fair
Consideration.
|
The
consideration received by the Company upon the sale of the Mortgage Loans under
this Agreement constitutes fair consideration and reasonably equivalent value
for such Mortgage Loans.
Section
3.02 Representations
and Warranties Regarding Individual Mortgage Loans.
As
to
each Mortgage Loan, the Company hereby represents and warrants to the Purchaser
that as of the Closing Date:
|
(a)
|
Mortgage
Loans as Described.
|
|
The
information set forth in the Mortgage Loan Schedule attached hereto
as
Exhibit A and the information contained on the Data File attached
hereto
as Exhibit D delivered to the Purchaser is true and correct; provided,
that the Company makes no representation or warranty as to the accuracy
of
Unverified Information, as long as the Company has performed a
reasonableness check with respect to the Unverified Information as
it
relates to the Mortgagor’s (1) income, to verify that the income level is
reasonable given the Mortgagor’s occupation and length of time in the
industry, and (2) assets, to verify that the mount of assets is reasonable
given the Mortgagor’s level of
income;
|
|
(b)
|
Payments
Current.
|
All
payments required to be made up to the Cut-off Date for the Mortgage Loan under
the terms of the Mortgage Note have been made and credited. No payment under
any
Mortgage Loan has been thirty (30) days delinquent more than one (1) time within
twelve (12) months prior to the Closing Date;
|
(c)
|
No
Outstanding Charges.
|
|
There
are no defaults in complying with the terms of the Mortgages, and
all
taxes, governmental assessments, insurance premiums, leasehold payments,
water, sewer and municipal charges, which previously became due and
owing
have been paid, or an escrow of funds has been established in an
amount
sufficient to pay for every such item which remains unpaid and which
has
been assessed but is not yet due and payable. The Company has not
advanced
funds, or induced, or solicited directly or indirectly, the payment
of any
amount required under the Mortgage Loan, except for interest accruing
from
the date of the Mortgage Note or date of disbursement of the Mortgage
Loan
proceeds, whichever is later, to the day which precedes by one month
the
Due Date of the first installment of principal and
interest;
|
21
|
(d)
|
Original
Terms Unmodified.
|
|
The
terms of the Mortgage Note and Mortgage, and with respect to each
Cooperative Loan, the related Pledge Agreement, Proprietary Lease
and
Pledge Instruments, have not been impaired, waived, altered or modified
in
any respect, except by a written instrument which has been recorded
or
registered with the MERS System if necessary, to protect the interests
of
the Purchaser and maintain the lien priority of the Mortgage, which
is
retained by the Company in the Retained Mortgage File and the related
Mortgage Note which has been delivered to the Custodian. The substance
of
any such waiver, alteration or modification has been approved by
the
issuer of any related PMI Policy and the title insurer, to the extent
required by the policy, and its terms are reflected on the Mortgage
Loan
Schedule. No Mortgagor has been released, in whole or in part, except
in
connection with an assumption agreement approved by the issuer of
any
related PMI Policy and the title insurer, to the extent required
by the
policy, and which assumption agreement is part of the Custodial Mortgage
File delivered to the Custodian and the terms of which are reflected
in
the Mortgage Loan Schedule;
|
|
(e)
|
No
Defenses.
|
|
The
Mortgage Loan is not subject to any right of rescission, set-off,
counterclaim or defense, including without limitation the defense
of
usury, nor will the operation of any of the terms of the Mortgage
Note or
the Mortgage, or the exercise of any right thereunder, render either
the
Mortgage Note or the Mortgage unenforceable, in whole or in part,
or
subject to any right of rescission, set-off, counterclaim or defense,
including without limitation the defense of usury, and no such right
of
rescission, set-off, counterclaim or defense has been asserted with
respect thereto;
|
|
(f)
|
No
Satisfaction of Mortgage.
|
|
The
Mortgage has not been satisfied, canceled, subordinated or rescinded,
in
whole or in part, and the Mortgaged Property has not been released
from
the lien of the Mortgage, in whole or in part, nor has any instrument
been
executed that would effect any such satisfaction, release, cancellation,
subordination or rescission;
|
|
(g)
|
Validity
of Mortgage Loan Documents.
|
22
|
The
Mortgage Note and the Mortgage and related documents are genuine,
and each
is the legal, valid and binding obligation of the maker thereof
enforceable in accordance with its terms. All parties to the Mortgage
Note
and the Mortgage had legal capacity to enter into the Mortgage Loan
and to
execute and deliver the Mortgage Note and the Mortgage, and the Mortgage
Note and the Mortgage have been duly and properly executed by such
parties. The Company has reviewed all of the documents constituting
the
Retained Mortgage File and Custodial Mortgage File and has made such
inquiries as it deems necessary to make and confirm the accuracy
of the
representations set forth herein;
|
With
respect to each Cooperative Loan, the Mortgage Note, the Mortgage, the Pledge
Agreement, and related documents are genuine, and each is the legal, valid
and
binding obligation of the maker thereof enforceable in accordance with its
terms. All parties to the Mortgage Note, the Mortgage, the Pledge Agreement,
the
Proprietary Lease, the Stock Power, Recognition Agreement and the Assignment
of
Proprietary Lease had legal capacity to enter into the Mortgage Loan and to
execute and deliver such documents, and such documents have been duly and
properly executed by such parties;
| (h) |
No
Fraud.
|
|
No
error, omission, misrepresentation, negligence, fraud or similar
occurrence with respect to a Mortgage Loan has taken place on the
part of
the Company or the Mortgagor (except with respect to the accuracy
of
Unverified Information, as long as the Company has performed a
reasonableness check with respect to the Unverified Information as
it
relates to the Mortgagor’s (1) income, to verify that the income level is
reasonable given the Mortgagor’s occupation and length of time in the
industry, and (2) assets, to verify that the amount of assets is
reasonable given the Mortgagor’s level of in income), or the appraiser, or
to the best of Company’s knowledge, any builder, or any developer, or any
other party involved in the origination of the Mortgage Loan or in
the
application of any insurance in relation to such Mortgage
Loan;
|
|
(i)
|
Compliance
with Applicable Laws.
|
|
Any
and all requirements of any federal, state or local law including,
without
limitation, usury, truth-in-lending, real estate settlement procedures,
consumer credit protection and privacy, equal credit opportunity,
disclosure or predatory and abusive lending laws applicable to the
Mortgage Loan have been complied with. All inspections, licenses
and
certificates required to be made or issued with respect to all occupied
portions of the Mortgaged Property and, with respect to the use and
occupancy of the same, including, but not limited to, certificates
of
occupancy and fire underwriting certificates, have been made or obtained
from the appropriate
authorities;
|
23
|
(j)
|
Location
and Type of Mortgaged Property.
|
|
The
Mortgaged Property is located in the state identified in the Mortgage
Loan
Schedule and consists of a contiguous parcel of real property with
a
detached single family residence erected thereon, or a two- to four-family
dwelling, or an individual condominium unit in a condominium project,
or a
Cooperative Apartment or an individual unit in a planned unit development
or a townhouse, provided, however, that any condominium project or
planned
unit development, or mixed use property shall conform with the applicable
▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac requirements, the Underwriting Guidelines
or the
Third-Party Underwriting Guidelines, as applicable, regarding such
dwellings, and no residence or dwelling is a mobile home or manufactured
dwelling. As of the respective appraisal date for each Mortgaged
Property,
any Mortgaged Property being used for commercial purposes conforms
to the
Underwriting Guidelines or the Third-Party Underwriting Guidelines,
as
applicable, and, to the best of the Company’s knowledge, since the date of
such appraisal, no portion of the Mortgaged Property was being used
for
commercial purposes outside of the Underwriting Guidelines or the
Third-Party Underwriting Guidelines, as
applicable;
|
| (k) |
Valid
First Lien.
|
|
Each
Mortgage Loan is a valid, subsisting and enforceable First Lien on
the
Mortgaged Property, including all buildings on the Mortgaged Property
and
all installations and mechanical, electrical, plumbing, heating and
air
conditioning systems located in or annexed to such buildings, and
all
additions, alterations and replacements made at any time with respect
to
the foregoing. The lien of the Mortgage is subject only
to:
|
|
(1)
|
the
lien of current real property taxes and assessments not yet due
and
payable;
|
|
(2)
|
covenants,
conditions and restrictions, rights of way, easements and other
matters of
the public record as of the date of recording acceptable to mortgage
lending institutions generally and specifically referred to in
the
lender's title insurance policy delivered to the originator of
the
Mortgage Loan and (i) referred to or otherwise considered in the
appraisal
made for the originator of the Mortgage Loan and (ii) which do
not
adversely affect the Appraised Value of the Mortgaged Property
set forth
in such appraisal; and
|
|
(3)
|
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.
|
24
|
Any
security agreement, chattel mortgage or equivalent document related
to and
delivered in connection with each Mortgage Loan establishes and creates
a
valid, subsisting and enforceable First Lien and first priority security
interest on the property described therein and the Company has full
right
to sell and assign the same to the Purchaser;
|
With
respect to each Cooperative Loan, each Pledge Agreement creates a valid,
enforceable and subsisting first security interest in the Cooperative Shares
and
Proprietary Lease, subject only to (i) the lien of the related Cooperative
for
unpaid assessments representing the Mortgagor’s pro rata share of the
Cooperative’s payments for its blanket mortgage, current and future real
property taxes, insurance premiums, maintenance fees and other assessments
to
which like collateral is commonly subject and (ii) other matters to which like
collateral is commonly subject which do not materially interfere with the
benefits of the security intended to be provided by the Pledge Agreement;
provided, however, that the appurtenant Proprietary Lease may be subordinated
or
otherwise subject to the lien of any mortgage on the Project;
|
(l)
|
Full
Disbursement of Proceeds.
|
|
The
proceeds of the Mortgage Loan have been fully disbursed, except for
escrows established or created due to seasonal weather conditions,
as
allowed under the Underwriting Guidelines or the Third-Party Underwriting
Guidelines, as applicable, and there is no requirement for future
advances
thereunder. All costs, fees and expenses incurred in making or closing
the
Mortgage Loan and the recording of the Mortgage were paid, and the
Mortgagor is not entitled to any refund of any amounts paid or due
under
the Mortgage Note or Mortgage;
|
|
(m)
|
Consolidation
of Future Advances.
|
|
Any
future advances made 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 reflected on the Mortgage Loan Schedule.
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 ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇
Mac; the consolidated principal amount does not exceed the original
principal amount of the Mortgage Loan; the Company shall not make
future
advances after the Cut-off Date;
|
|
(n)
|
Ownership.
|
25
|
The
Company is the sole owner of record and holder of the Mortgage
Loan and
the related Mortgage Note and the Mortgage are not assigned or
pledged,
and the Company has good and marketable title thereto and has
full right
and authority to transfer and sell the Mortgage Loan to the Purchaser.
The
Company is transferring the Mortgage Loan free and clear of any
and all
encumbrances, liens, pledges, equities, participation interests,
claims,
charges or security interests of any nature encumbering such
Mortgage
Loan;
|
|
(o)
|
Origination/Doing
Business.
|
|
The
Mortgage Loan was originated by a savings and loan association,
a savings
bank, a commercial bank, a credit union, an insurance company,
or similar
institution that is supervised and examined by a federal or state
authority or by a mortgagee approved by the Secretary of Housing
and Urban
Development pursuant to Sections 203 and 211 of the National
Housing Act.
All parties which have had any interest in the Mortgage Loan,
whether as
mortgagee, assignee, pledgee or otherwise, are (or, during the
period in
which they held and disposed of such interest, were) (1) in compliance
with any and all applicable licensing requirements of the laws
of the
state wherein the Mortgaged Property is located, and (2) organized
under
the laws of such state, or (3) qualified to do business in such
state, or
(4) federal savings and loan associations or national banks having
principal offices in such state, or (5) not doing business in
such
state;
|
|
(p)
|
LTV,
PMI Policy.
|
|
Each
Mortgage Loan shall have an LTV as indicated on the Mortgage
Loan
Schedule. Except as set forth on the Data File, each Mortgage
Loan with an
LTV of greater than 80% at the time of origination, a portion
of the
unpaid principal balance of the Mortgage Loan is and will be
insured as to
payment defaults by a PMI Policy. If the Mortgage Loan is insured
by a PMI
Policy which is not an LPMI Policy, the coverage will remain
in place
until (i) the LTV decreases to 78% or (ii) the PMI Policy is
otherwise
terminated pursuant to the Homeowners Protection Act of 1998,
12 USC
§4901, et seq. All provisions of such PMI Policy have been and
are being
complied with, such policy is in full force and effect, and all
premiums
due thereunder have been paid. The Qualified Insurer has a claims
paying
ability acceptable to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac. Any Mortgage
Loan subject
to a PMI Policy or LPMI Policy obligates the Mortgagor or the
Company to
maintain the PMI Policy or LPMI Policy, as applicable, and to
pay all
premiums and charges in connection therewith. The Mortgage Interest
Rate
for the Mortgage Loan as set forth on the Mortgage Loan Schedule
is net of
any such insurance premium;
|
|
(q)
|
Title
Insurance.
|
26
|
The
Mortgage Loan is covered by an ALTA lender's title insurance
policy (or in
the case of any Mortgage Loan secured by a Mortgaged Property
located in a
jurisdiction where such policies are generally not available,
an opinion
of counsel of the type customarily rendered in such jurisdiction
in lieu
of title insurance) or other generally acceptable form of policy
of
insurance acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac, issued by
a title
insurer acceptable to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac and qualified
to do
business in the jurisdiction where the Mortgaged Property is
located,
insuring the Company, its successors and assigns, as to the first
priority
lien of the Mortgage in the original principal amount of the
Mortgage
Loan, subject only to the exceptions contained in clauses (1),
(2) and (3)
of Paragraph (k) of this Section 3.02, and against any loss by
reason of
the invalidity or unenforceability of the lien resulting from
the
provisions of the Mortgage providing for adjustment to the Mortgage
Interest Rate and Monthly Payment. Additionally, such lender’s title
insurance policy includes no exceptions regarding ingress, egress
or
encroachments that impact the value or the marketability of the
Mortgaged
Property. The Company is the sole insured of such lender's title
insurance
policy, and such lender's title insurance policy is in full force
and
effect and will be in force and effect upon the consummation
of the
transactions contemplated by this Agreement. No claims have been
made
under such lender's title insurance policy, and no prior holder
of the
Mortgage, including the Company, has done, by act or omission,
anything
which would impair the coverage of such lender's title insurance
policy;
|
|
(r)
|
No
Defaults.
|
|
There
is no default, breach, violation or event of acceleration existing
under
the Mortgage or the Mortgage Note and no event which, with the
passage of
time or with notice and the expiration of any grace or cure period,
would
constitute a default, breach, violation or event of acceleration,
and
neither the Company nor its predecessors have waived any default,
breach,
violation or event of acceleration;
|
|
(s)
|
No
Mechanics' Liens.
|
|
There
are no mechanics' or similar liens or claims which have been
filed for
work, labor or material (and no rights are outstanding that under
the law
could give rise to such liens) affecting the related Mortgaged
Property
which are or may be liens prior to, or equal or coordinate with,
the lien
of the related Mortgage which are not insured against by the
title
insurance policy referenced in Paragraph (q)
above;
|
|
(t)
|
Location
of Improvements; No Encroachments.
|
|
Except
as insured against by the title insurance policy referenced in
Paragraph
(q) above, all improvements which were considered in determining
the
Appraised Value of the Mortgaged Property lay wholly within the
boundaries
and building restriction lines of the Mortgaged Property and
no
improvements on adjoining properties encroach upon the Mortgaged
Property.
No improvement located on or being part of the Mortgaged Property
is in
violation of any applicable zoning law or
regulation;
|
27
|
(u)
|
Payment
Terms.
|
|
Except
with respect to the Interest Only Mortgage Loans, principal payments
commenced no more than sixty (60) days after the funds were disbursed
to
the Mortgagor in connection with the Mortgage Loan. Except with
respect to
the Interest Only Mortgage Loans, each Mortgage Loan is payable
in equal
monthly installments of principal and interest, with interest
calculated
and payable in arrears, sufficient (except with respect to Balloon
Loans)
to amortize the Mortgage Loan fully by the stated maturity date
set for in
the Mortgage Note over an original term to maturity of not more
than
thirty (30) years. With respect to each Balloon Loan, the Mortgage
Loan is
payable in equal monthly installments of principal and interest
based on a
fifteen (15), thirty (30) or forty (40) year amortization schedule,
as set
forth in the related Mortgage Note, and a final lump sum payment
substantially greater than the preceding Monthly Payment is required
which
is sufficient to amortize the remaining principal balance of
the Balloon
Loan. No Balloon Loan has an original stated maturity of less
than seven
(7) years. As to each Adjustable Rate Mortgage Loan on each applicable
Adjustment Date, the Mortgage Interest Rate will be adjusted
to equal the
sum of the Index plus the applicable Gross Margin, rounded up
or down to
the nearest multiple of 0.125% indicated by the Mortgage Note;
provided
that the Mortgage Interest Rate will not increase or decrease
by more than
the Periodic Interest Rate Cap on any Adjustment Date, and will
in no
event exceed the Maximum Mortgage Interest Rate or be lower than
the
minimum Mortgage Interest Rate listed on the Mortgage Note for
such
Mortgage Loan. As
to each Adjustable Rate Mortgage Loan that is not an Interest
Only
Mortgage Loan, each
Mortgage Note requires a monthly payment which is sufficient,
during the
period prior to the first adjustment to the Mortgage Interest
Rate, to
fully amortize the outstanding principal balance as of the first
day of
such period over the then remaining term of such Mortgage Note
and to pay
interest at the related Mortgage Interest Rate. With respect
to each
Interest Only Mortgage Loan, the interest-only period shall not
exceed
fifteen (15) years (or such other period specified on the Data
File) and
following the expiration of such interest-only period, the remaining
Monthly Payments shall be sufficient to fully amortize the original
principal balance over the remaining term of the Mortgage Loan
and to pay
interest at the related Mortgage Interest Rate. As to each Adjustable
Rate
Mortgage Loan, if the related Mortgage Interest Rate changes
on an
Adjustment Date or, with respect to an Interest Only Mortgage
Loan, on an
Adjustment Date following the related interest-only period, the
then
outstanding principal balance will be reamortized over the remaining
life
of such Mortgage Loan. No Adjustable Rate Mortgage Loan contains
terms or
provisions which would result in negative amortization;
|
28
|
(v)
|
Customary
Provisions.
|
|
The
Mortgage and related Mortgage Note contain customary and enforceable
provisions such as to render the rights and remedies of the holder
thereof
adequate for the realization against the Mortgaged Property of
the
benefits of the security provided thereby, including, (i) in
the case of a
Mortgage designated as a deed of trust, by trustee's sale, and
(ii)
otherwise by judicial foreclosure. There is no homestead or other
exemption available to a Mortgagor which would interfere with
the right to
sell the Mortgaged Property at a trustee's sale or the right
to foreclose
the Mortgage;
|
|
(w)
|
Occupancy
of the Mortgaged Property.
|
|
As
of the date of origination the Mortgaged Property was lawfully
occupied
and as of the Closing Date, to the best of Company’s knowledge, the
Mortgaged Property is lawfully occupied under applicable
law;
|
|
(x)
|
No
Additional Collateral.
|
|
The
Mortgage Note is not and has not been secured by any collateral,
pledged
account or other security except the lien of the corresponding
Mortgage
and the security interest of any applicable security agreement
or chattel
mortgage referred to in Paragraph
(k);
|
|
(y)
|
Deeds
of Trust.
|
|
In
the event the Mortgage constitutes a deed of trust, a trustee,
duly
qualified under applicable law to serve as such, has been properly
designated and currently so serves and is named in the Mortgage,
and no
fees or expenses are or will become payable by the mortgagee
to the
trustee under the deed of trust, except in connection with a
trustee's
sale after default by the
Mortgagor;
|
|
(z)
|
Acceptable
Investment.
|
|
The
Company has no knowledge of any circumstances or conditions with
respect
to the Mortgage Loan, the Mortgaged Property, the Mortgagor or
the
Mortgagor's credit standing that can reasonably be expected to
cause
private institutional investors to regard the Mortgage Loan as
an
unacceptable investment, cause the Mortgage Loan to become delinquent,
or
adversely affect the value or marketability of the Mortgage
Loan;
|
|
(aa)
|
Transfer
of Mortgage Loans.
|
|
If
the Mortgage Loan is not a MERS Mortgage Loan, the Assignment
of Mortgage,
upon the insertion of the name of the assignee and recording
information,
is in recordable form and is acceptable for recording under the
laws of
the jurisdiction in which the Mortgaged Property is
located;
|
29
|
(bb)
|
Mortgaged
Property Undamaged.
|
|
The
Mortgaged Property is undamaged by waste, fire, earthquake or
earth
movement, windstorm, flood, tornado or other casualty so as to
affect
adversely the value of the Mortgaged Property as security for
the Mortgage
Loan or the use for which the premises were
intended;
|
| (cc) |
Collection
Practices; Escrow Deposits.
|
|
The
origination, servicing and collection practices used with respect
to the
Mortgage Loan have been in accordance with Accepted Servicing
Practices,
and have been in all material respects legal, proper and in accordance
with the terms of the Mortgage Note. With respect to escrow deposits
and
Escrow Payments, all such payments are in the possession of the
Company
and there exist no deficiencies in connection therewith for which
customary arrangements for repayment thereof have not been made.
All
Escrow Payments have been collected in full compliance with state
and
federal law. No escrow deposits or Escrow Payments or other charges
or
payments due the Company have been capitalized under the Mortgage
Note;
|
|
(dd)
|
No
Condemnation.
|
|
There
is no proceeding pending or to the best of the Company’s knowledge
threatened for the total or partial condemnation of the related
Mortgaged
Property;
|
|
(ee)
|
The
Appraisal.
|
The
Servicing File for each Mortgage Loan includes an appraisal of the related
Mortgaged Property, on form 1004 or form 2055, with an interior inspection.
As
to each Time$aver® Mortgage Loan, the appraisal may be from the original of the
existing Company-serviced loan, which was refinanced via such Time$aver®
Mortgage Loan. The appraisal was conducted by an appraiser who had no interest,
direct or indirect, in the Mortgaged Property or in any loan made on the
security thereof; and whose compensation is not affected by the approval
or
disapproval of the Mortgage Loan, and the appraisal and the appraiser both
satisfy the applicable requirements of Title XI of the Financial Institution
Reform, Recovery, and Enforcement Act of 1989 and the regulations promulgated
thereunder, all as in effect on the date the Mortgage Loan was
originated;
|
(ff)
|
Insurance.
|
30
|
The
Mortgaged Property (and, with respect to any Cooperative Loan,
the related
Project) securing each Mortgage Loan is insured by an insurer
acceptable
to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac against loss by fire and such hazards
as are
covered under a standard extended coverage endorsement and such
other
hazards as are customary in the area where the Mortgaged Property
is
located pursuant to insurance policies conforming to the requirements
of
Section 4.10, in an amount which is at least equal to the lesser
of (i)
100% of the insurable value, on a replacement cost basis, of
the
improvements on the related Mortgaged Property and (ii) the greater
of
either (a) the outstanding principal balance of the Mortgage
Loan with
respect to each Mortgage Loan or (b) an amount such that the
proceeds of
such insurance shall be sufficient to prevent the application
to the
Mortgagor or the loss payee of any coinsurance clause under the
policy. If
the Mortgaged Property is a condominium unit, it is included
under the
coverage afforded by a blanket policy for the project. If the
improvements
on the Mortgaged Property are in an area identified in the Federal
Register by the Federal Emergency Management Agency as having
special
flood hazards, a flood insurance policy meeting the requirements
of the
current guidelines of the Federal Insurance Administration is
in effect
with a generally acceptable insurance carrier and such policy
conforms to
the Underwriting Guidelines or the Third-Party Underwriting Guidelines,
as
applicable, in an amount representing coverage not less than
the least of
(A) the outstanding principal balance of the Mortgage Loan,
(B) the full insurable value and (C) the maximum amount of
insurance which was available under the Flood Disaster Protection
Act of
1973, as amended. All individual insurance policies contain a
standard
mortgagee clause naming the Company and its successors and assigns
as
mortgagee, and all premiums thereon have been paid. The Mortgage
obligates
the Mortgagor thereunder to maintain a hazard insurance policy
at the
Mortgagor's cost and expense, and on the Mortgagor's failure
to do so,
authorizes the holder of the Mortgage to obtain and maintain
such
insurance at such Mortgagor's cost and expense, and to seek reimbursement
therefor from the Mortgagor. The hazard insurance policy is the
valid and
binding obligation of the insurer, is in full force and effect,
and will
be in full force and effect and inure to the benefit of the Purchaser
upon
the consummation of the transactions contemplated by this Agreement.
The
Company has not acted or failed to act so as to impair the coverage
of any
such insurance policy or the validity, binding effect and enforceability
thereof;
|
|
(gg)
|
Servicemembers
Civil Relief Act.
|
|
The
Mortgagor has not notified the Company, and the Company has no
knowledge
of any relief requested or allowed to the Mortgagor under the
Servicemembers Civil Relief Act, as
amended;
|
|
(hh)
|
No
Graduated Payments or Contingent Interests.
|
31
|
The
Mortgage Loan is not a graduated payment mortgage loan, and the
Mortgage
Loan does not have a shared appreciation or other contingent
interest
feature. No Adjustable Rate Mortgage Loan is a Convertible Mortgage
Loan;
|
|
(ii)
|
No
Construction Loans.
|
|
No
Mortgage Loan was made in connection with (i) the construction
or
rehabilitation of a Mortgage Property or (ii) facilitating the
trade-in or
exchange of a Mortgaged Property other than a construction-to-permanent
loan which has converted to a permanent Mortgage
Loan;
|
|
(jj)
|
Underwriting.
|
| (i) |
Each
Company Mortgage Loan was underwritten in accordance with the
Underwriting
Guidelines;
|
| (ii) |
Each
Third-Party Mortgage Loan was underwritten in accordance with
the
Third-Party Underwriting Guidelines; and
|
| (iii) |
Each
Mortgage Note and Mortgage are on forms acceptable to ▇▇▇▇▇▇▇
Mac or
▇▇▇▇▇▇ Mae;
|
|
(kk)
|
Buydown
Mortgage Loans.
|
|
With
respect to each Mortgage Loan that is a Buydown Mortgage
Loan:
|
| (i) |
On
or before the date of origination of such Mortgage Loan, the
Company and
the Mortgagor, or the Company, the Mortgagor and the seller of
the
Mortgaged Property or a third party entered into a Buydown Agreement.
The
Buydown Agreement provides that the seller of the Mortgaged Property
(or
third party) shall deliver to the Company temporary Buydown Funds
in an
amount equal to the aggregate undiscounted amount of payments
that, when
added to the amount the Mortgagor on such Mortgage Loan is obligated
to
pay on each Due Date in accordance with the terms of the Buydown
Agreement, is equal to the full scheduled Monthly Payment due
on such
Mortgage Loan. The temporary Buydown Funds enable the Mortgagor
to qualify
for the Buydown Mortgage Loan. The effective interest rate of
a Buydown
Mortgage Loan if less than the interest rate set forth in the
related
Mortgage Note will increase within the Buydown Period as provided
in the
related Buydown Agreement so that the effective interest rate
will be
equal to the interest rate as set forth in the related Mortgage
Note. The
Buydown Mortgage Loan satisfies the requirements of ▇▇▇▇▇▇ ▇▇▇
guidelines,
▇▇▇▇▇▇▇ Mac guidelines, the Underwriting Guidelines or the Third-Party
Underwriting Guidelines;
|
32
|
(ii)
|
The
Mortgage and Mortgage Note reflect the permanent payment terms
rather than
the payment terms of the Buydown Agreement. The Buydown Agreement
provides
for the payment by the Mortgagor of the full amount of the
Monthly Payment
on any Due Date that the Buydown Funds are available. The Buydown
Funds
were not used to reduce the original principal balance of the
Mortgage
Loan or to increase the Appraised Value of the Mortgage Property
when
calculating the Loan-to-Value Ratios for purposes of the Agreement
and, if
the Buydown Funds were provided by the Company and if required
under
▇▇▇▇▇▇ ▇▇▇ guidelines, ▇▇▇▇▇▇▇ Mac guidelines, the Underwriting
Guidelines
or the Third-Party Underwriting Guidelines, the terms of the
Buydown
Agreement were disclosed to the appraiser of the Mortgaged
Property;
|
|
(iii)
|
The
Buydown Funds may not be refunded to the Mortgagor unless the
Mortgagor
makes a principal payment for the outstanding balance of the
Mortgage
Loan;
|
|
(iv)
|
As
of the date of origination of the Mortgage Loan, the provisions
of the
related Buydown Agreement complied with the requirements of
▇▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇ Mac, the Underwriting Guidelines or the Third-Party
Underwriting
Guidelines regarding buydown
agreements;
|
|
(ll)
|
Credit
Reporting.
|
With
respect to each Mortgage Loan, the Company has furnished complete and accurate
information (i.e., favorable and unfavorable) on the related borrower credit
files to Equifax, Experian and Trans Union Credit Information Company,
in
accordance with the Fair Credit Reporting Act and its implementing regulations;
|
(mm)
|
Anti-Money
Laundering Laws.
|
The
Company has complied with all applicable anti-money laundering laws and
regulations, (the “Anti-Money Laundering Laws”), and has established an
anti-money laundering compliance program as required by the Anti-Money
Laundering Laws. No Mortgage Loan is subject to nullification pursuant
to
Executive Order 13224 (the “Executive Order”) or the regulations promulgated by
the Office of Foreign Assets Control of the United States Department of
the
Treasury (the “OFAC Regulations”) or in violation of the Executive Order or the
OFAC Regulations, and as of the origination date of the related Mortgage
Loan,
no Mortgagor was subject to the provisions of such Executive Order or the
OFAC
Regulations nor listed as a “blocked person” for purposes of the OFAC
Regulations;
| (nn) |
HOEPA.
|
33
No
Mortgage Loan is a High Cost Loan or Covered Loan;
|
(oo)
|
No
Violation of Environmental Laws.
|
There
is
no pending action or proceeding directly involving any Mortgaged Property
of
which the Company is aware in which compliance with any environmental law,
rule
or regulation is an issue; there is no violation of any environmental law,
rule
or regulation with respect to the Mortgaged Property; and to the best of
the
Company’s knowledge, nothing further remains to be done to satisfy in full all
requirements of each such law, rule or regulation constituting a prerequisite
to
use and enjoyment of said property;
|
(pp)
|
Credit
Insurance.
|
No
Mortgagor was required to purchase any credit insurance policy (e.g.
life, disability, accident, unemployment or health insurance
product)
or debt
cancellation agreement as a condition of obtaining the extension of credit.
No
Mortgagor obtained a prepaid credit insurance policy (e.g. life, disability,
accident, unemployment or health insurance product) or debt cancellation
agreement in connection with the origination of the Mortgage Loan. No proceeds
from any Mortgage Loan were used to purchase credit insurance policies
or debt
cancellation agreements as part of the origination of, or as a condition
to
closing, such Mortgage Loan;
|
(qq)
|
Due
on Sale.
|
The
Mortgage or Mortgage Note contains an enforceable provision, to the extent
not
prohibited by applicable law, for the acceleration of the payment of the
unpaid
principal balance of the Mortgage Loan in the event that the Mortgaged
Property
is sold or transferred without the prior written consent of the mortgagee
thereunder, provided that, with respect to Mortgage Notes which bear an
adjustable rate of interest, such provision shall not be enforceable if
the
Mortgagor causes to be submitted to the Company information required by
the
Company to evaluate the intended transferee as if a new mortgage loan were
being
made to such transferee, and the Company reasonably determines (1) that
the
mortgagee’s security will not be impaired by such Mortgage Loan assumption and
(2) that the risk of breach of any covenant or agreement in such Mortgage
is
acceptable;
|
(rr)
|
Bankruptcy.
|
No
Mortgagor was a debtor in any state or federal bankruptcy or insolvency
proceeding at the time the Mortgage Loan was originated and as of the Closing
Date, the Company has not received notice that any Mortgagor is a debtor
under
any state or federal bankruptcy or insolvency proceedings;
34
|
(ss)
|
Payment
in Full.
|
The
Company had no knowledge, at the time of origination of the Mortgage Loan,
of
any fact that should have led it to expect that such Mortgage Loan would
not be
paid in full when due;
|
(tt)
|
Cooperative
Loans.
|
With
respect to each Cooperative Loan:
|
(i)
|
The
Cooperative Shares are held by a person as a tenant-stockholder
in a
Cooperative. Each original Financing Statement, continuation
statement or
other governmental filing or recordation necessary to create
or preserve
the perfection and priority of the first lien and security interest
in the
Cooperative Loan and Proprietary Lease has been timely and properly
made.
Any security agreement, chattel mortgage or equivalent document
related to
the Cooperative Loan and delivered to Purchaser or its designee
establishes in Purchaser a valid and subsisting perfected first
lien on
and security interest in the Mortgaged Property described therein,
and
Purchaser has full right to sell and assign the same. The Proprietary
Lease term expires no less than five years after the Mortgage
Loan term or
such other term acceptable to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇
Mac.
|
|
(ii)
|
A
Cooperative Lien Search has been made by a company competent
to make the
same which company is acceptable to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac
and
qualified to do business in the jurisdiction where the Cooperative
is
located and such search has not revealed information which would
materially and adversely affect the Cooperative
Loan.
|
|
(iii)
|
(a)
The term of the related Proprietary Lease is not less than the
terms of
the Cooperative Loan; (b) there is no provision in any Proprietary
Lease
which requires the Mortgagor to offer for sale the Cooperative
Shares
owned by such Mortgagor first to the Cooperative; (c) there is
no
prohibition in any Proprietary Lease against pledging the Cooperative
Shares or assigning the Proprietary Lease; (d) the Cooperative
has been
created and exists in full compliance with the requirements for
residential cooperatives in the jurisdiction in which the Project
is
located and qualifies as a cooperative housing corporation under
Section
216 of the Code; (e) the Recognition Agreement is on a form published
by
Aztech Document Services, Inc. or includes similar provisions;
and (f) the
Cooperative has good and marketable title to the Project, and
owns the
Project either in fee simple or under a leasehold that complies
with the
requirements of the ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac guidelines; such
title is
free and clear of any adverse liens or encumbrances, except the
lien of
any blanket mortgage;
|
35
|
(iv)
|
The
Company has the right under the terms of the Mortgage Note, Pledge
Agreement and Recognition Agreement to pay any maintenance charges
or
assessments owed by the Mortgagor;
|
|
(v)
|
Each
Stock Power (i) has all signatures guaranteed or (ii) if all
signatures
are not guaranteed, then such Cooperative Shares will be transferred
by
the stock transfer agent of the Cooperative if the Company undertakes
to
convert the ownership of the collateral securing the related
Cooperative
Loan;
|
|
(uu)
|
The
Mortgagor.
|
The
Mortgagor is one or more natural Persons and/or an Illinois land trust
or a
“living trust” and such “living trust” is in compliance with the Underwriting
Guidelines;
|
(vv)
|
Leasehold
Estate.
|
With
respect to each Mortgage Loan secured in whole or in part by the interest
of the
Mortgagor as a lessee under a ground lease of the related Mortgaged Property
(a
“Ground Lease”) and not be a fee interest in such Mortgaged
Property:
(i) The
Mortgagor is the owner of a valid and subsisting interest as tenant under
the
Ground Lease;
(ii) The
Ground Lease is in full force and effect;
(iii) The
Mortgagor is not in default under any provision of the lease;
(iv) The
lessor under the Ground Lease is not in default under any of the terms
or
provisions thereof on the part of the lessor to be observed or
performed;
36
(v) The
term
of the Ground Lease exceeds the maturity date of the related Mortgage Loan
by at
least five (5) years;
(vi) The
Mortgagee under the Mortgage Loan is given at least sixty (60) days’ notice of
any default and an opportunity to cure any defaults under the Ground Lease
or to
take over the Mortgagor’s rights under the Ground Lease;
(vii) The
Ground Lease does not contain any default provisions that could result
in
forfeiture or termination of the Ground Lease except for non-payment of
the
Ground Lease or a court order.
(viii) The
Ground Lease provides that the leasehold can be transferred, mortgaged
and
sublet an unlimited number of times either without restriction or on payment
of
a reasonable fee and delivery of reasonable documentation to the
lessor;
(ix) The
Ground Lease or a memorandum thereof has been recorded and by its terms
permits
the leasehold estate to be mortgaged; and
(x) The
execution, delivery and performance of the Mortgage do not require consent
(other than those consents which have been obtained and are in full force
and
effect) under, and will not contravene any provision of or cause a default
under, the Ground Lease;
|
(ww)
|
Delivery
of Custodial Mortgage Files.
|
The
Mortgage Note, Assignment of Mortgage and any other documents required
to be
delivered by the Company have been delivered to the Custodian. The Company
is in
possession of a complete Retained Mortgage File in compliance with Exhibit
C,
except for such documents the originals of which have been delivered to
the
Custodian or for such documents where the originals of which have been
sent for
recordation. With respect to each Mortgage Loan for which a lost note affidavit
has been delivered to the Custodian in place of the original Mortgage Note,
the
related Mortgage Note is no longer in existence, and, if such Mortgage
Loan is
subsequently in default, the enforcement of such Mortgage Loan or of the
related
Mortgage by or on behalf of the Purchaser will not be affected by the absence
of
the original Mortgage Note;
|
(xx)
|
MERS
Mortgage Loans.
|
With
respect to each MERS Mortgage Loan, a MIN has been assigned to the Mortgage
Loan, the MIN appears on the Mortgage or related Assignment of Mortgage
to MERS,
the Mortgage or the related Assignment of Mortgage to MERS has been duly
and
properly recorded on MERS, and the transfer to the Purchaser has been properly
reflected in the MERS System pursuant to the Purchaser’s registration
instructions;
37
|
(yy)
|
Arbitration.
|
With
respect to each Mortgage Loan, neither the related Mortgage nor the related
Mortgage Note requires the Mortgagor to submit to arbitration to resolve
any
dispute arising out of or relating in any way to the Mortgage Loan
transaction;
|
(zz)
|
Interest
Calculation.
|
Interest
on each Mortgage Loan is calculated on the basis of a 360-day year consisting
of
twelve 30-day months;
|
(aaa)
|
Texas
Refinance Mortgage.
|
Each
Mortgage Loan originated in the state of Texas pursuant to Article XVI,
Section
50(a)(6) of the Texas Constitution (a “Texas Refinance Loan”) has been
originated in compliance with the provisions of Article XVI, Section 50(a)(6)
of
the Texas Constitution, Texas Civil Statutes and the Texas Finance Code.
With
respect to each Texas Refinance Loan that is a cash-out refinancing mortgage
loan, the related Mortgage Loan Documents permit the Mortgagor to prepay
such
Texas Refinance Loan in whole or in part without incurring a Prepayment
Penalties;
|
(bbb)
|
Georgia
Fair Lending Act.
|
There
is
no Mortgage Loan that was originated on or after October 1, 2002 and before
March 7, 2003, that is secured by property located in the State of Georgia.
There is no Mortgage Loan that was originated on or after March 7, 2003,
that is
a “high cost home loan” as defined under the Georgia Fair Lending Act;
and
|
(ccc)
|
Contents
of the Retained Mortgage File.
|
The
Retained Mortgage File contains the documents listed as items 6 through
10 of
Exhibit C attached hereto.
Section
3.03 Repurchase.
It
is
understood and agreed that the representations and warranties set forth
in
Sections 3.01 and 3.02 shall survive the sale of the Mortgage Loans to
the
Purchaser and the delivery of the applicable Mortgage Loan Documents to
the
Custodian and shall inure to the benefit of the Purchaser, notwithstanding
any
restrictive or qualified endorsement on any Mortgage Note or Assignment
of
Mortgage or the examination or failure to examine any Custodial Mortgage
File or
Retained Mortgage File. Upon discovery by either the Company or the Purchaser
of
a breach of any of the foregoing representations and warranties which materially
and adversely affects the value of the Mortgage Loans or the interest of
the
Purchaser (or which materially and adversely affects the interests of Purchaser
in the related Mortgage Loan in the case of a representation and warranty
relating to a particular Mortgage Loan), the party discovering such breach
shall
give prompt written notice to the other.
38
Within
ninety (90) days of the earlier of either discovery by or notice to the
Company
of any breach of a representation or warranty which materially and adversely
affects the value of the Mortgage Loans, the Company shall use its best
efforts
promptly to cure such breach in all material respects and, if such breach
cannot
be cured, the Company shall, at the Purchaser's option, repurchase such
Mortgage
Loan at the Repurchase Price. In the event that a breach shall involve
any
representation or warranty set forth in Section 3.01, and such breach cannot
be
cured within ninety (90) days of the earlier of either discovery by or
notice to
the Company of such breach, all of the Mortgage Loans shall, at the Purchaser's
option, be repurchased by the Company at the Repurchase Price. However,
if the
breach shall involve a representation or warranty set forth in Section
3.02 and
the Company discovers or receives notice of any such breach within one
hundred
twenty (120) days of the Closing Date, the Company shall, if the breach
cannot
be cured, at the Purchaser's option and provided that the Company has a
Qualified Substitute Mortgage Loan, rather than repurchase the Mortgage
Loan as
provided above, remove such Mortgage Loan (a "Deleted Mortgage Loan") and
substitute in its place a Qualified Substitute Mortgage Loan or Loans,
provided
that any such substitution shall be effected not later than one hundred
twenty
(120) days after the Closing Date. If the Company has no Qualified Substitute
Mortgage Loan, it shall repurchase the deficient Mortgage Loan within ninety
(90) days of the written notice of the breach or discovery of the breach
by the
Company. Any repurchase of a Mortgage Loan or Loans pursuant to the foregoing
provisions of this Section 3.03 shall be accomplished by deposit in the
Custodial Account of the amount of the Repurchase Price for distribution
to
Purchaser on the Remittance Date immediately following the Principal Prepayment
Period in which such Repurchase Price is received, after deducting therefrom
any
amount received in respect of such repurchased Mortgage Loan or Loans and
being
held in the Custodial Account for future distribution.
At
the
time of repurchase or substitution, the Purchaser and the Company shall
arrange
for the reassignment of the Deleted Mortgage Loan to the Company and the
delivery to the Company of any documents held by the Custodian relating
to the
Deleted Mortgage Loan. If
the
Company repurchases a Mortgage Loan that is a MERS Mortgage Loan, the Company
shall cause MERS to designate on the MERS® System to remove the Purchaser as the
beneficial holder with respect to such Mortgage Loan.
In the
event of a repurchase or substitution, the Company shall, simultaneously
with
such reassignment, give written notice to the Purchaser that such repurchase
or
substitution has taken place, amend the Mortgage Loan Schedule to reflect
the
withdrawal of the Deleted Mortgage Loan from this Agreement, and, in the
case of
substitution, identify a Qualified Substitute Mortgage Loan and amend the
Mortgage Loan Schedule to reflect the addition of such Qualified Substitute
Mortgage Loan to this Agreement. In connection with any such substitution,
the
Company shall be deemed to have made as to such Qualified Substitute Mortgage
Loan the representations and warranties set forth in this Agreement except
that
all such representations and warranties set forth in this Agreement shall
be
deemed made as of the date of such substitution. The Company shall effect
such
substitution by delivering to the Custodian for such Qualified Substitute
Mortgage Loan the documents required by Section 2.03, with the Mortgage
Note
endorsed as required by Section 2.03. No substitution will be made in any
calendar month after the Determination Date for such month. The Company
shall
deposit in the Custodial Account the Monthly Payment less the Servicing
Fee due
on such Qualified Substitute Mortgage Loan or Loans in the month following
the
date of such substitution. Monthly Payments due with respect to Qualified
Substitute Mortgage Loans in the month of substitution shall be retained
by the
Company. With respect to any Deleted Mortgage Loan, distributions to Purchaser
shall include the Monthly Payment due on any Deleted Mortgage Loan in the
month
of substitution, and the Company shall thereafter be entitled to retain
all
amounts subsequently received by the Company in respect of such Deleted
Mortgage
Loan.
39
For
any
month in which the Company substitutes a Qualified Substitute Mortgage
Loan for
a Deleted Mortgage Loan, the Company shall determine the amount (if any)
by
which the aggregate principal balance of all Qualified Substitute Mortgage
Loans
as of the date of substitution is less than the aggregate Stated Principal
Balance of all Deleted Mortgage Loans (after application of scheduled principal
payments due in the month of substitution). The amount of such shortfall
shall
be distributed by the Company in the month of substitution pursuant to
Section
5.01. Accordingly, on the date of such substitution, the Company shall
deposit
from its own funds into the Custodial Account an amount equal to the amount
of
such shortfall.
In
addition to such repurchase or substitution obligation, the Company shall
indemnify the Purchaser and any successor in interest to the Purchaser
and hold
each such party harmless against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments,
and other costs and expenses resulting from any claim, demand, defense
or
assertion based on or grounded upon, or resulting from, a breach of the
representations and warranties contained in this Agreement. It is understood
and
agreed that the obligations of the Company set forth in this Section 3.03
to
cure, substitute for or repurchase a defective Mortgage Loan and to indemnify
the Purchaser as provided in this Section 3.03 constitute the sole remedies
of
the Purchaser respecting a breach of the foregoing representations and
warranties.
Any
cause
of action against the Company relating to or arising out of the breach
of any
representations and warranties made in Sections 3.01 and 3.02 shall accrue
as to
any Mortgage Loan upon (i) discovery of such breach by the Purchaser or
notice
thereof by the Company to the Purchaser, (ii) failures by the Company to
cure
such breach or repurchase such Mortgage Loan as specified above, and (iii)
demand upon the Company by the Purchaser for compliance with this
Agreement.
ARTICLE
IV
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
Section
4.01 Company
to Act as Servicer.
40
The
Company, as an independent contractor, shall service and administer the
Mortgage
Loans and shall have full power and authority, acting alone or through
the
utilization of a Subservicer or a Subcontractor, to do any and all things
in
connection with such servicing and administration which the Company may
deem
necessary or desirable, consistent with the terms of this Agreement and
with
Accepted Servicing Practices.
The
Company shall be responsible for any and all acts of a Subservicer and
a
Subcontractor, and the Company’s utilization of a Subservicer or a Subcontractor
shall in no way relieve the liability of the Company under this
Agreement.
Consistent
with the terms of this Agreement, the Company may waive, modify or vary
any term
of any Mortgage Loan or consent to the postponement of strict compliance
with
any such term or in any manner grant indulgence to any Mortgagor if in
the
Company's reasonable and prudent determination such waiver, modification,
postponement or indulgence is not materially adverse to the Purchaser,
provided,
however, the Company shall not make any future advances, other than Servicing
Advances, with respect to a Mortgage Loan. The Company shall not permit
any
modification with respect to any Mortgage Loan that would change the Mortgage
Interest Rate, defer or forgive the payment of principal (except for actual
payments of principal) or change the final maturity date on such Mortgage
Loan,
unless the Mortgagor is in default with respect to the Mortgage Loan or
such
default is, in the judgment of the Company imminent. In the event that
no
default exists or is imminent, the Company shall request written consent
from
the Purchaser to permit such a modification and the Purchaser shall provide
written consent or notify the Company of its objection to such modification
within three (3) Business Days of its receipt of the Company's request.
In the
event of any such modification which permits the deferral of interest or
principal payments on any Mortgage Loan, the Company shall, on the Business
Day
immediately preceding the Remittance Date in any month in which any such
principal or interest payment has been deferred, deposit in the Custodial
Account from its own funds, in accordance with Section 5.03, the difference
between (a) such month's principal and one month's interest at the Mortgage
Loan
Remittance Rate on the unpaid principal balance of such Mortgage Loan and
(b)
the amount paid by the Mortgagor. The Company shall be entitled to reimbursement
for such advances to the same extent as for all other advances made pursuant
to
Section 5.03. Without limiting the generality of the foregoing, the Company
shall continue, and is hereby authorized and empowered, to execute and
deliver
on behalf of itself and the Purchaser, all instruments of satisfaction
or
cancellation, or of partial or full release, discharge and all other comparable
instruments, with respect to the Mortgage Loans and with respect to the
Mortgaged Properties. If reasonably required by the Company, the Purchaser
shall
furnish the Company with any powers of attorney and other documents necessary
or
appropriate to enable the Company to carry out its servicing and administrative
duties under this Agreement.
In
servicing and administering the Mortgage Loans, the Company shall employ
procedures (including collection procedures) and exercise the same care
that it
customarily employs and exercises in servicing and administering mortgage
loans
for its own account, giving due consideration to Accepted Servicing Practices
where such practices do not conflict with the requirements of this Agreement,
and the Purchaser's reliance on the Company.
41
The
Company shall cause to be maintained for each Cooperative Loan a copy of
the
financing statements and shall file and such financing statements and
continuation statements as necessary, in accordance with the Uniform Commercial
Code applicable in the jurisdiction in which the related Cooperative Apartment
is located, to perfect and protect the security interest and lien of the
Purchaser.
The
Company is authorized and empowered by the Purchaser, pursuant to the
instructions of the Purchaser, in its own name, when the Company believes
it
appropriate in its reasonable judgment to register any Mortgage Loan on
the
MERS® System, or cause the removal from the registration of any Mortgage Loan
on
the MERS® System, to execute and deliver, on behalf of the Purchaser, any and
all instruments of assignment and other comparable instruments with respect
to
such assignment or re-recording of a Mortgage in the name of MERS, solely
as
nominee for the Purchaser and its successors and assigns; provided, however,
that the Company shall not remove a Mortgage Loan from the MERS® System or elect
to terminate its membership in MERS unless it has first delivered Assignments
of
Mortgage to the recording office for recordation. In addition, if the Company’s
membership in MERS is terminated by MERS for any reason, the Company shall,
within thirty (30) days of the effective date of such termination, deliver
to
the recording office Assignments of Mortgage from MERS to the Purchaser
or its
designee.
Section
4.02 Liquidation
of Mortgage Loans.
In
the
event that any payment due under any Mortgage Loan and not postponed pursuant
to
Section 4.01 is not paid when the same becomes due and payable, or in the
event
the Mortgagor fails to perform any other covenant or obligation under the
Mortgage Loan and such failure continues beyond any applicable grace period,
the
Company shall take such action as (1) the Company would take under similar
circumstances with respect to a similar mortgage loan held for its own
account
for investment, (2) shall be consistent with Accepted Servicing Practices,
(3)
the Company shall determine prudently to be in the best interest of Purchaser,
and (4) is consistent with any related PMI Policy. In the event that any
payment
due under any Mortgage Loan is not postponed pursuant to Section 4.01 and
remains delinquent for a period of ninety (90) days or any other default
continues for a period of ninety (90) days beyond the expiration of any
grace or
cure period, the Company shall commence foreclosure proceedings. In the
event
the Purchaser objects to such foreclosure action, the Company shall not
be
required to make Monthly Advances with respect to such Mortgage Loan, pursuant
to Section 5.03, and the Company's obligation to make such Monthly Advances
shall terminate on the 90th day referred to above. In such connection,
the
Company shall from its own funds make all necessary and proper Servicing
Advances, provided, however, that the Company shall not be required to
expend
its own funds in connection with any foreclosure or towards the restoration
or
preservation of any Mortgaged Property, unless it shall determine (a) that
such
preservation, restoration and/or foreclosure will increase the proceeds
of
liquidation of the Mortgage Loan to Purchaser after reimbursement to itself
for
such expenses and (b) that such expenses will be recoverable by it either
through Liquidation Proceeds (respecting which it shall have priority for
purposes of withdrawals from the Custodial Account pursuant to Section
4.05) or
through Insurance Proceeds (respecting which it shall have similar
priority).
42
Notwithstanding
anything to the contrary contained herein, in connection with a foreclosure
or
acceptance of a deed in lieu of foreclosure, in the event the Company has
reasonable cause to believe that a Mortgaged Property is contaminated by
hazardous or toxic substances or wastes, or if the Purchaser otherwise
requests
an environmental inspection or review of such Mortgaged Property, such
an
inspection or review is to be conducted by a qualified inspector. The cost
for
such inspection or review shall be advanced by the Company as a Servicing
Advance reimbursable in accordance with Section 4.05. Upon completion of
the
inspection or review, the Company shall promptly provide the Purchaser
with a
written report of the environmental inspection.
After
reviewing the environmental inspection report, the Purchaser shall determine
how
the Company shall proceed with respect to the Mortgaged Property. In the
event
(a) the environmental inspection report indicates that the Mortgaged Property
is
contaminated by hazardous or toxic substances or wastes and (b) the Purchaser
directs the Company to proceed with foreclosure or acceptance of a deed
in lieu
of foreclosure, the Company shall be reimbursed for all reasonable costs
associated with such foreclosure or acceptance of a deed in lieu of foreclosure
and any related environmental clean up costs, as applicable, from the related
Liquidation Proceeds, or if the Liquidation Proceeds are insufficient to
fully
reimburse the Company, the Company shall be entitled to be reimbursed from
amounts in the Custodial Account pursuant to Section 4.05 hereof. In the
event
the Purchaser directs the Company not to proceed with foreclosure or acceptance
of a deed in lieu of foreclosure, the Company shall be reimbursed for all
Servicing Advances made with respect to the related Mortgaged Property
from the
Custodial Account pursuant to Section 4.05 hereof.
Section
4.03 Collection
of Mortgage Loan Payments.
Continuously
from the date hereof until the principal and interest on all Mortgage Loans
are
paid in full, the Company shall proceed diligently to collect all payments
due
under each of the Mortgage Loans when the same shall become due and payable
and
shall take special care in ascertaining and estimating Escrow Payments
and all
other charges that will become due and payable with respect to the Mortgage
Loan
and the Mortgaged Property, to the end that the installments payable by
the
Mortgagors will be sufficient to pay such charges as and when they become
due
and payable.
Section
4.04 Establishment
of and Deposits to Custodial Account.
The
Company shall segregate and hold all funds collected and received in
connection with
a
Mortgage Loan separate and apart from any of its own funds and general
assets
and shall establish and maintain one or more Custodial Accounts, in the
form of
time deposit or demand accounts, titled "▇▇▇▇▇ Fargo Bank, N.A., in trust
for
the Purchaser and/or subsequent purchasers of Mortgage Loans - P & I." The
Custodial Account shall be established with a Qualified Depository. The
Company
shall provide the Purchaser with written confirmation of the existence
of such
Custodial Account on the Closing Date. The Custodial Account shall at all
times
be insured to the fullest extent allowed by applicable law. Funds deposited
in
the Custodial Account may be drawn on by the Company in accordance with
Section
4.05.
43
The
Company shall deposit in the Custodial Account within two (2) Business
Days of
Company’s receipt, and retain therein, the following collections received by the
Company and payments made by the Company after the Cut-off Date, other
than
payments of principal and interest due on or before the Cut-off Date, or
received by the Company prior to the Cut-off Date but allocable to a period
subsequent thereto:
|
(i)
|
all
payments on account of principal on the Mortgage Loans, including
all
Principal Prepayments;
|
|
(ii)
|
all
payments on account of interest on the Mortgage Loans adjusted
to the
Mortgage Loan Remittance Rate;
|
|
(iii)
|
all
Liquidation Proceeds;
|
|
(iv)
|
all
Insurance Proceeds including amounts required to be deposited
pursuant to
Section 4.10 (other than proceeds to be held in the Escrow Account
and
applied to the restoration or repair of the Mortgaged Property
or released
to the Mortgagor in accordance with Section 4.14), Section 4.11
and
Section 4.15;
|
|
(v)
|
all
Condemnation Proceeds which are not applied to the restoration
or repair
of the Mortgaged Property or released to the Mortgagor in accordance
with
Section 4.14;
|
|
(vi)
|
any
amount required to be deposited in the Custodial Account pursuant
to
Section 4.01, 5.03, 6.01 or 6.02;
|
|
(vii)
|
any
amounts payable in connection with the repurchase of any Mortgage
Loan
pursuant to Section 3.03 and all amounts required to be deposited
by the
Company in connection with a shortfall in principal amount of
any
Qualified Substitute Mortgage Loan pursuant to Section
3.03;
|
|
(viii)
|
with
respect to each Principal Prepayment an amount (to be paid by
the Company
out of its funds) which, when added to all amounts allocable
to interest
received in connection with the Principal Prepayment, equals
one month's
interest on the amount of principal so prepaid at the Mortgage
Loan
Remittance Rate;
|
|
(ix)
|
any
amounts required to be deposited by the Company pursuant to Section
4.11
in connection with the deductible clause in any blanket hazard
insurance
policy;
|
|
(x)
|
any
amounts received with respect to or related to any REO Property
and all
REO Disposition Proceeds pursuant to Section 4.16;
and
|
44
|
(xi)
|
with
respect to Buydown Mortgage Loans, an amount from the Escrow
Account that
when added to the amount received from the Mortgagor for such
month, equal
the full Monthly Payment due under the related Mortgage
Note.
|
The
foregoing requirements for deposit into the Custodial Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of late payment charges and assumption
fees, to the extent permitted by Section 6.01, need not be deposited by
the
Company into the Custodial Account. Any interest paid on funds deposited
in the
Custodial Account by the depository institution shall accrue to the benefit
of
the Company and the Company shall be entitled to retain and withdraw such
interest from the Custodial Account pursuant to Section 4.05. The Company
shall
maintain adequate records with respect to all deposits made pursuant to
this
Section 4.04. All funds required to be deposited in the Custodial Account
shall
be held in trust for the Purchaser until withdrawn in accordance with Section
4.05.
Section
4.05 Permitted
Withdrawals From Custodial Account.
The
Company shall, from time to time, withdraw funds 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 5.01;
|
|
(ii)
|
to
reimburse itself for Monthly Advances of the Company's funds
made pursuant
to Section 5.03, the Company's right to reimburse itself pursuant
to this
subclause (ii) being limited to amounts received on the related
Mortgage
Loan which represent late Monthly Payments, Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds and such other amounts
as may be
collected by the Company respecting which any such advance was
made, it
being understood that, in the case of any such reimbursement,
the
Company's right thereto shall be prior to the rights of Purchaser,
except
that, where the Company is required to repurchase a Mortgage
Loan pursuant
to Section 3.03 or 6.02, the Company's right to such reimbursement
shall
be subsequent to the payment to the Purchaser of the Repurchase
Price
pursuant to such sections and all other amounts required to be
paid to the
Purchaser with respect to such Mortgage
Loan;
|
|
(iii)
|
to
reimburse itself for unreimbursed Servicing Advances, and for
any unpaid
Servicing Fees, the Company's right to reimburse itself pursuant
to this
subclause (iii) with respect to any Mortgage Loan being limited
to related
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds
and such
other amounts as may be collected by the Company from the Mortgagor
or
otherwise relating to the Mortgage Loan, it being understood
that, in the
case of any such reimbursement, the Company's right thereto shall
be prior
to the rights of Purchaser, except that where the Company is
required to
repurchase a Mortgage Loan pursuant to Section 3.03 or 6.02,
in which case
the Company's right to such reimbursement shall be subsequent
to the
payment to the Purchaser of the Repurchase Price pursuant to
such sections
and all other amounts required to be paid to the Purchaser with
respect to
such Mortgage Loan;
|
45
|
(iv)
|
to
pay itself interest on funds deposited in the Custodial
Account;
|
|
(v)
|
to
reimburse itself for expenses incurred and reimbursable to it
pursuant to
Section 8.01;
|
|
(vi)
|
to
pay any amount required to be paid pursuant to Section 4.16 related
to any
REO Property, it being understood that, in the case of any such
expenditure or withdrawal related to a particular REO Property,
the amount
of such expenditure or withdrawal from the Custodial Account
shall be
limited to amounts on deposit in the Custodial Account with respect
to the
related REO Property;
|
|
(vii)
|
to
reimburse itself for any Servicing Advances or REO expenses after
liquidation of the Mortgaged Property not otherwise reimbursed
above;
|
|
(viii)
|
to
remove funds inadvertently placed in the Custodial Account by
the Company;
and
|
|
(ix)
|
to
clear and terminate the Custodial Account upon the termination
of this
Agreement.
|
In
the
event that the Custodial Account is interest bearing, on each Remittance
Date,
the Company shall withdraw all funds from the Custodial Account except
for those
amounts which, pursuant to Section 5.01, the Company is not obligated to
remit
on such Remittance Date. The Company may use such withdrawn funds only
for the
purposes described in this Section 4.05. The Company shall keep and maintain
separate accounting, on a Mortgage Loan by Mortgage Loan basis, for the
purpose
of justifying any withdrawal from the Custodial Account for sub clauses
(i),
(ii), (iii), (v), (vi) and (vii).
Section
4.06 Establishment
of and Deposits to Escrow Account.
The
Company shall segregate and hold all funds collected and received pursuant
to a
Mortgage Loan constituting Escrow Payments separate and apart from any
of its
own funds and general assets and shall establish and maintain one or more
Escrow
Accounts, in the form of time deposit or demand accounts, titled, "▇▇▇▇▇
Fargo
Bank, N.A., in trust for the Purchaser and/or subsequent purchasers Residential
Mortgage Loans, and various Mortgagors – T & I." The Escrow Accounts
shall be established with a Qualified Depository, in a manner which shall
provide maximum available insurance thereunder. The Company shall provide
the
Purchaser with written confirmation of the existence of such Escrow Account
on
the Closing Date. Funds deposited in the Escrow Account may be drawn on
by the
Company in accordance with Section 4.07.
46
The
Company shall deposit in the Escrow Account or Accounts within two (2)
Business
Days of Company’s 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;
|
|
(ii)
|
all
amounts representing Insurance Proceeds or Condemnation Proceeds
which are
to be applied to the restoration or repair of any Mortgaged Property;
|
|
(iii)
|
all
payments on account of Buydown Funds;
and
|
|
(iv)
|
all
Servicing Advances for Mortgagors whose Escrow Payments are insufficient
to cover escrow disbursements.
|
The
Company shall make withdrawals from the Escrow Account only to effect such
payments as are required under this Agreement, as set forth in Section
4.07. The
Company shall be entitled to retain any interest paid on funds deposited
in the
Escrow Account by the depository institution, other than interest on escrowed
funds required by law to be paid to the Mortgagor. To the extent required
by
law, the Company shall pay interest on escrowed funds to the Mortgagor
notwithstanding that the Escrow Account may be non-interest bearing or
that
interest paid thereon is insufficient for such purposes.
Section
4.07 Permitted
Withdrawals From Escrow Account.
Withdrawals
from the Escrow Account or Accounts may be made by the Company
only:
|
(i)
|
to
effect timely payments of ground rents, taxes, assessments, water
rates,
mortgage insurance premiums, condominium charges, fire and hazard
insurance premiums or other items constituting Escrow Payments
for the
related Mortgage;
|
|
(ii)
|
to
reimburse the Company for any Servicing Advances made by the
Company
pursuant to Section 4.08 with respect to a related Mortgage Loan,
but only
from amounts received on the related Mortgage Loan which represent
late
collections of Escrow Payments
thereunder;
|
|
(iii)
|
to
refund to any Mortgagor any funds found to be in excess of the
amounts
required under the terms of the related Mortgage
Loan;
|
|
(iv)
|
for
transfer to the Custodial Account and application to reduce the
principal
balance of the Mortgage Loan in accordance with the terms of
the related
Mortgage and Mortgage Note;
|
|
(v)
|
for
application to the restoration or repair of the Mortgaged Property
in
accordance with the procedures outlined in Section
4.14;
|
47
|
(vi)
|
to
pay to the Company, or any Mortgagor to the extent required by
law, any
interest paid on the funds deposited in the Escrow
Account;
|
|
(vii)
|
to
remove funds inadvertently placed in the Escrow Account by the
Company;
|
|
(viii)
|
to
transfer payment on account of Buydown Funds to the Custodial
Account, as
applicable; and
|
|
(ix)
|
to
clear and terminate the Escrow Account on the termination of
this
Agreement.
|
Section
4.08 Payment
of Taxes, Insurance and Other Charges.
With
respect to each Mortgage Loan, the Company shall maintain accurate records
reflecting the status of ground rents, taxes, assessments, water rates,
sewer
rents, and other charges which are or may become a lien upon the Mortgaged
Property and the status of PMI Policy 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, employing for such purpose
deposits
of the Mortgagor in the Escrow Account which shall have been estimated
and
accumulated by the Company in amounts sufficient for such purposes, as
allowed
under the terms of the Mortgage. The Company assumes full responsibility
for the
timely payment of all such bills and shall effect timely payment of all
such
charges irrespective of each Mortgagor's faithful performance in the payment
of
same or the making of the Escrow Payments, and the Company shall make advances
from its own funds to effect such payments.
Section
4.09 Protection
of Accounts.
The
Company may transfer the Custodial Account or the Escrow Account to a different
Qualified Depository from time to time, provided that the Company shall
give
notice to the Purchaser of such transfer.
Section
4.10 Maintenance
of Hazard Insurance.
The
Company shall cause to be maintained for each Mortgage Loan hazard insurance
such that all buildings upon the Mortgaged Property are insured by an insurer
acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac against loss by fire, hazards of
extended coverage and such other hazards as are customary in the area where
the
Mortgaged Property is located, in an amount which is at least equal to
the
lesser of (i) 100% of the insurable value, on a replacement cost basis,
of the
improvements on the related Mortgage Property and (ii) the greater of (a)
the
outstanding principal balance of the Mortgage Loan and (b) an amount such
that
the proceeds of such insurance shall be sufficient to prevent the application
to
the Mortgagor or the loss payee of any coinsurance clause under the policy.
In
the event a hazard insurance policy shall be in danger of being terminated,
or
in the event the insurer shall cease to be acceptable to ▇▇▇▇▇▇ Mae or
▇▇▇▇▇▇▇
Mac, the Company shall notify the Purchaser and the related Mortgagor,
and shall
use its best efforts, as permitted by applicable law, to obtain from another
qualified insurer a replacement hazard insurance policy substantially and
materially similar in all respects to the original policy. In no event,
however,
shall a Mortgage Loan be without a hazard insurance policy at any time,
subject
only to Section 4.11 hereof.
48
If
the
related Mortgaged Property is located in an area identified by the Federal
Emergency Management Agency as having special flood hazards (and such flood
insurance has been made available) a flood insurance policy meeting the
requirements of the current guidelines of the Federal Insurance Administration
is in effect with a generally acceptable insurance carrier acceptable to
▇▇▇▇▇▇
Mae or ▇▇▇▇▇▇▇ Mac in an amount representing coverage equal to the lesser
of (i)
the minimum amount required, under the terms of coverage, to compensate
for any
damage or loss on a replacement cost basis (or the unpaid balance of the
mortgage if replacement cost coverage is not available for the type of
building
insured) and (ii) the maximum amount of insurance which is available under
the
Flood Disaster Protection Act of 1973, as amended. If at any time during
the
term of the Mortgage Loan, the Company determines in accordance with the
applicable law and pursuant to the ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac guide, that
the
Mortgaged Property is located in a special flood hazard area and is not
covered
by flood insurance or is covered in an amount less than the amount required
by
the Flood Disaster Protection Act of 1973, as amended, the Company shall
notify
the related Mortgagor that the Mortgagor must obtain such flood insurance
coverage, and if said Mortgagor fails to obtain the required flood insurance
coverage within forty-five (45) days after such notification, the Company
shall
force place the required flood insurance on the Mortgagor's behalf.
If
a
Mortgage is secured by a unit in a condominium project, the Company shall
verify
that the coverage required of the owner's association, including hazard,
flood,
liability, and fidelity coverage, is being maintained in accordance with
then
current ▇▇▇▇▇▇ Mae requirements, and secure from the owner's association
its
agreement to notify the Company promptly of any change in the insurance
coverage
or of any condemnation or casualty loss that may have a material effect
on the
value of the Mortgaged Property as security.
In
the
event that any Purchaser or the Company shall determine that the Mortgaged
Property should be insured against loss or damage by hazards and risks
not
covered by the insurance required to be maintained by the Mortgagor pursuant
to
the terms of the Mortgage, the Company shall communicate and consult with
the
Mortgagor with respect to the need for such insurance and bring to the
Mortgagor's attention the desirability of protection of the Mortgaged Property
and if the Mortgagor does not obtain such coverage, the Company shall
immediately force place the required coverage on the Mortgagor’s
behalf.
All
policies required hereunder shall name the Company as loss payee and shall
be
endorsed with standard or union mortgagee clauses, without contribution,
which
shall provide for at least thirty (30) days prior written notice of any
cancellation, reduction in amount or material change in coverage.
The
Company shall not interfere with the Mortgagor's freedom of choice in selecting
either his insurance carrier or agent, provided, however, that the Company
shall
not accept any such insurance policies from insurance companies unless
such
companies are acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac and are licensed
to do
business in the jurisdiction in which the Mortgaged Property is located.
The
Company shall determine that such policies provide sufficient risk coverage
and
amounts, that they insure the property owner, and that they properly describe
the property address.
49
Pursuant
to Section 4.04, any amounts collected by the Company under any such policies
(other than amounts to be deposited in the Escrow Account and applied to
the
restoration or repair of the related Mortgaged Property, or property acquired
in
liquidation of the Mortgage Loan, or to be released to the Mortgagor, in
accordance with the Company's normal servicing procedures as specified
in
Section 4.14) shall be deposited in the Custodial Account subject to withdrawal
pursuant to Section 4.05.
Section
4.11 Maintenance
of Mortgage Impairment Insurance.
In
the
event that the Company shall obtain and maintain a blanket policy insuring
against losses arising from fire and hazards covered under extended coverage
on
all of the Mortgage Loans, then, to the extent such policy provides coverage
in
an amount equal to the amount required pursuant to Section 4.10 and otherwise
complies with all other requirements of Section 4.10, it shall conclusively
be
deemed to have satisfied its obligations as set forth in Section 4.10.
The
Company shall prepare and make any claims on the blanket policy as deemed
necessary by the Company in accordance with Accepted Servicing Practices.
Any
amounts collected by the Company under any such policy relating to a Mortgage
Loan shall be deposited in the Custodial Account subject to withdrawal
pursuant
to Section 4.05. Such policy may contain a deductible clause, in which
case, in
the event that there shall not have been maintained on the related Mortgaged
Property a policy complying with Section 4.10, and there shall have been
a loss
which would have been covered by such policy, the Company shall deposit
in the
Custodial Account at the time of such loss the amount not otherwise payable
under the blanket policy because of such deductible clause, such amount
to be
deposited from the Company's funds, without reimbursement therefor. Upon
request
of the Purchaser, the Company shall cause to be delivered to such Purchaser
a
certificate of insurance and a statement from the insurer thereunder that
such
policy shall in no event be terminated or materially modified without thirty
(30) days' prior written notice to such Purchaser.
Section
4.12 Maintenance
of Fidelity Bond and Errors and Omissions Insurance.
The
Company shall maintain with responsible companies that meet the requirements
of
▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac, at its own expense, a blanket Fidelity Bond
and an
Errors and Omissions Insurance Policy, with broad coverage on all officers,
employees or other Persons acting in any capacity requiring such Persons
to
handle funds, money, documents or papers relating to the Mortgage Loans
("Company Employees"). Any such Fidelity Bond and Errors and Omissions
Insurance
Policy shall be in the form of the Mortgage Banker's Blanket Bond and shall
protect and insure the Company against losses, including forgery, theft,
embezzlement, fraud, errors and omissions and negligent acts of such Company
Employees. Such Fidelity Bond and Errors and Omissions Insurance Policy
also
shall protect and insure the Company against losses in connection with
the
release or satisfaction of a Mortgage Loan without having obtained payment
in
full of the indebtedness secured thereby. No provision of this Section
4.12
requiring such Fidelity Bond and Errors and Omissions Insurance Policy
shall
diminish or relieve the Company from its duties and obligations as set
forth in
this Agreement. The minimum coverage under any such Fidelity Bond and Errors
and
Omissions Insurance Policy shall be at least equal to the amounts acceptable
to
▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac. Upon the request of any Purchaser, the Company
shall
cause to be delivered to such Purchaser a certificate of insurance for
such
Fidelity Bond and Errors and Omissions Insurance Policy and a statement
from the
surety and the insurer that such Fidelity Bond and Errors and Omissions
Insurance Policy shall in no event be terminated or materially modified
without
thirty (30) days' prior written notice to the Purchaser.
50
Section
4.13 Inspections.
If
any
Mortgage Loan is more than sixty (60) days delinquent, the Company immediately
shall inspect the Mortgaged Property and shall conduct subsequent inspections
in
accordance with Accepted Servicing Practices or as may be required by the
primary mortgage guaranty insurer. The Company shall keep a record of each
such
inspection and, upon request, shall provide the Purchaser with such
information.
Section
4.14 Restoration
of Mortgaged Property.
The
Company need not obtain the approval of the Purchaser prior to releasing
any
Insurance Proceeds or Condemnation Proceeds to the Mortgagor to be applied
to
the restoration or repair of the Mortgaged Property if such release is
in
accordance with Accepted Servicing Practices. For claims greater than $15,000,
at a minimum the Company shall comply with the following conditions in
connection with any such release of Insurance Proceeds or Condemnation
Proceeds:
|
(i)
|
the
Company shall receive satisfactory independent verification
of completion
of repairs and issuance of any required approvals with respect
thereto;
|
|
(ii)
|
the
Company shall take all steps necessary to preserve the priority
of the
lien of the Mortgage, including, but not limited to requiring
waivers with
respect to mechanics' and materialmen's
liens;
|
|
(iii)
|
the
Company shall verify that the Mortgage Loan is not in default;
and
|
|
(iv)
|
pending
repairs or restoration, the Company shall place the Insurance
Proceeds or
Condemnation Proceeds in the Escrow
Account.
|
If
the
Purchaser is named as an additional loss payee, the Company is hereby empowered
to endorse any loss draft issued in respect of such a claim in the name
of the
Purchaser.
Section
4.15 Maintenance
of PMI Policy; Claims.
51
Except
as
indicated on the Data File, with respect to each Mortgage Loan with an
LTV in
excess of 80% at the time of origination, the Company shall, without any
cost to
the Purchaser maintain or cause the Mortgagor to maintain in full force
and
effect a PMI Policy insuring the portion of the unpaid principal balance
of the
Mortgage Loan as to payment defaults. If the Mortgage Loan is insured by
a PMI
Policy for which the Mortgagor pays all premiums, the coverage will remain
in
place until (i) the LTV decreases to 78% or (ii) the PMI Policy is otherwise
terminated pursuant to the Homeowners Protection Act of 1998, 12 UCS §4901, et
seq. In the event that such PMI Policy shall be terminated other than as
required by law, the Company shall obtain from another Qualified Insurer
a
comparable replacement policy, with a total coverage equal to the remaining
coverage of such terminated PMI Policy. If the insurer shall cease to be
a
Qualified Insurer, the Company shall determine in accordance with Accepted
Servicing Practices whether recoveries under the PMI Policy are jeopardized
for
reasons related to the financial condition of such insurer, it being understood
that the Company shall in no event have any responsibility or liability
for any
failure to recover under the PMI Policy for such reason. If the Company
determines that recoveries are so jeopardized, it shall notify the Purchaser
and
the Mortgagor, if required, and obtain from another Qualified Insurer a
replacement insurance policy. The Company shall not take any action which
would
result in noncoverage under any applicable PMI Policy of any loss which,
but for
the actions of the Company would have been covered thereunder. In connection
with any assumption or substitution agreement entered into or to be entered
into
pursuant to Section 6.01, the Company shall promptly notify the insurer
under
the related PMI Policy, if any, of such assumption or substitution of liability
in accordance with the terms of such PMI Policy and shall take all actions
which
may be required by such insurer as a condition to the continuation of coverage
under such PMI Policy. If such PMI Policy is terminated as a result of
such
assumption or substitution of liability, the Company shall obtain a replacement
PMI Policy as provided above.
In
connection with its activities as servicer, the Company agrees to prepare
and
present, on behalf of itself and the Purchaser, claims to the insurer under
any
PMI Policy in a timely fashion in accordance with the terms of such PMI
Policy
and, in this regard, to take such action as shall be necessary to permit
recovery under any PMI Policy respecting a defaulted Mortgage Loan. Pursuant
to
Section 4.04, any amounts collected by the Company under any PMI Policy
shall be
deposited in the Custodial Account, subject to withdrawal pursuant to Section
4.05.
Section
4.16 Title,
Management and Disposition of REO Property.
In
the
event that title to any Mortgaged Property is acquired in foreclosure or
by deed
in lieu of foreclosure, the deed or certificate of sale shall be taken
in the
name of the Purchaser or the Purchaser's designee, or in the event the
Purchaser
is not authorized or permitted to hold title to real property in the state
where
the REO Property is located, or would be adversely affected under the "doing
business" or tax laws of such state by so holding title, the deed or certificate
of sale shall be taken in the name of such Person or Persons as shall be
consistent with an Opinion of Counsel obtained by the Company from any
attorney
duly licensed to practice law in the state where the REO Property is located.
The Person or Persons holding such title other than the Purchaser shall
acknowledge in writing that such title is being held as nominee for the
Purchaser.
52
The
Company shall manage, conserve, protect and operate each REO Property for
the
Purchaser solely for the purpose of its prompt disposition and sale. The
Company, either itself or through an agent selected by the Company, shall
manage, conserve, protect and operate the REO Property in the same manner
that
it manages, conserves, protects and operates other foreclosed property
for its
own account, and in the same manner that similar property in the same locality
as the REO Property is managed. The Company shall attempt to sell the same
(and
may temporarily rent the same for a period not greater than one year, except
as
otherwise provided below) on such terms and conditions as the Company deems
to
be in the best interest of the Purchaser.
The
Company shall use its best efforts to dispose of the REO Property as soon
as
possible and shall sell such REO Property in any event within one (1) year
after
title has been taken to such REO Property, unless (i) a REMIC election
has not
been made with respect to the arrangement under which the Mortgage Loans
and the
REO Property are held, and (ii) the Company determines 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 the foregoing sentence and is necessary
to
sell any REO Property, (i) the Company shall report monthly to the Purchaser
as
to the progress being made in selling such REO Property and (ii) if a purchase
money mortgage is taken in connection with such sale, such purchase money
mortgage shall name the Company as mortgagee, and such purchase money mortgage
shall not be held pursuant to this Agreement.
The
Company shall also maintain on each REO Property fire and hazard insurance
with
extended coverage in amount which is at least equal to the maximum insurable
value of the improvements which are a part of such property, liability
insurance
and, to the extent required and available under the Flood Disaster Protection
Act of 1973, as amended, flood insurance in the amount required
above.
The
disposition of REO Property shall be carried out by the Company at such
price,
and upon such terms and conditions, as the Company deems to be in the best
interests of the Purchaser. The proceeds of sale of the REO Property shall
be
promptly deposited in the Custodial Account. As soon as practical thereafter
the
expenses of such sale shall be paid and the Company shall reimburse itself
for
any related unreimbursed Servicing Advances, unpaid Servicing Fees and
unreimbursed advances made pursuant to Section 5.03. On the Remittance
Date
immediately following the receipt of such sale proceeds, the net cash proceeds
of such sale remaining in the Custodial Account shall be distributed to
the
Purchaser.
With
respect to each REO Property, the Company shall hold and account for all
funds
collected and received in connection with the operation of the REO Property
on a
loan-level basis.
The
Company shall withdraw from the Custodial Account funds necessary for the
proper
operation management and maintenance of the REO Property, including the
cost of
maintaining any hazard insurance pursuant to Section 4.10 and the fees
of any
managing agent of the Company, or the Company itself. The Company shall
make
monthly distributions on each Remittance Date to the Purchaser of the net
cash
flow from the REO Property (which shall equal the revenues from such REO
Property net of the expenses described in this Section 4.16 and of any
reserves
reasonably required from time to time to be maintained to satisfy anticipated
liabilities for such expenses).
53
Section
4.17 Real
Estate Owned Reports.
Together
with the statement furnished pursuant to Section 5.02, the Company shall
furnish
to the Purchaser on or before the Remittance Date each month a statement
with
respect to any REO Property covering the operation of such REO Property
for the
previous month and the Company's efforts in connection with the sale of
such REO
Property and any rental of such REO Property incidental to the sale thereof
for
the previous month. That statement shall be accompanied by such other
information available to the Company as the Purchaser shall reasonably
request.
Section
4.18 Liquidation
Reports.
Upon
the
foreclosure sale of any Mortgaged Property or the acquisition thereof by
the
Purchaser pursuant to a deed in lieu of foreclosure, the Company shall
submit to
the Purchaser a liquidation report with respect to such Mortgaged
Property.
Section
4.19 Reports
of Foreclosures and Abandonments of Mortgaged Property.
Following
the foreclosure sale or abandonment of any Mortgaged Property, the Company
shall
report such foreclosure or abandonment as required pursuant to Section
6050J of
the Code. The Company shall file information reports with respect to the
receipt
of mortgage interest received in a trade or business and information returns
relating to cancellation of indebtedness income with respect to any Mortgaged
Property as required by the Code. Such reports shall be in form and substance
sufficient to meet the reporting requirements imposed by the Code.
Section
4.20 Application
of Buydown Funds.
With
respect to each Buydown Mortgage Loan, the Company shall have deposited
into the
Escrow Account, no later than the last day of the month, Buydown Funds
in an
amount equal to the aggregate undiscounted amount of payments that, when
added
to the amount the Mortgagor on such Mortgage Loan is obligated to pay on
all Due
Dates in accordance with the terms of the Buydown Agreement, is equal to
the
full scheduled Monthly Payments which are required to be paid by the Mortgagor
under the terms of the related Mortgage Note (without regard to the related
Buydown Agreement as if the Mortgage Loan were not subject to the terms
of the
Buydown Agreement). With respect to each Buydown Mortgage Loan, the Company
will
distribute to the Purchaser on each Remittance Date an amount of Buydown
Funds
equal to the amount that, when added to the amount required to be paid
on such
date by the related Mortgagor, pursuant to and in accordance with the related
Buydown Agreement, equals the full Monthly Payment that would otherwise
be
required to be paid on such Mortgage Loan by the related Mortgagor under
the
terms of the related Mortgage Note (as if the Mortgage Loan were not a
Buydown
Mortgage Loan and without regard to the related Buydown Agreement).
54
If
the
Mortgagor on a Buydown Mortgage Loan defaults on such Mortgage Loan during
the
Buydown Period and the Mortgaged Property securing such Buydown Mortgage
Loan is
sold in the liquidation thereof (either by the Company or the insurer under
any
related Primary Insurance Policy) the Company shall, on the Remittance
Date
following the date upon which Liquidation Proceeds or REO Disposition proceeds
are received with respect to any such Buydown Mortgage Loan, distribute
to the
Purchaser all remaining Buydown Funds for such Mortgage Loan then remaining
in
the Escrow Account. Pursuant to the terms of each Buydown Agreement, any
amounts
distributed to the Purchaser in accordance with the preceding sentence
will be
applied to reduce the outstanding principal balance of the related Buydown
Mortgage Loan. If a Mortgagor on a Buydown Mortgage Loan prepays such Mortgage
Loan in its entirety during the related Buydown Period, the Company shall
be
required to withdraw from the Escrow Account any Buydown Funds remaining
in the
Escrow Account with respect to such Buydown Mortgage Loan in accordance
with the
related Buydown Agreement. If a principal prepayment by a Mortgagor on
a Buydown
Mortgage Loan during the related Buydown Period, together with any Buydown
Funds
then remaining in the Escrow Account related to such Buydown Mortgage Loan,
would result in a principal prepayment of the entire unpaid principal balance
of
the Buydown Mortgage Loan, the Company shall distribute to the Purchaser
on the
Remittance Date occurring in the month immediately succeeding the month
in which
such Principal Prepayment is received, all Buydown Funds related to such
Mortgage Loan so remaining in the Escrow Account, together with any amounts
required to be deposited into the Custodial Account.
Section
4.21 Notification
of Adjustments.
With
respect to each Adjustable Rate Mortgage Loan, the Company shall adjust
the
Mortgage Interest Rate on the related Adjustment Date in compliance with
the
requirements of applicable law and the related Mortgage and Mortgage Note.
The
Company 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 adjustments. Upon the discovery by the Company
or the
receipt of notice from the Purchaser that the Company has failed to adjust
a
Mortgage Interest Rate in accordance with the terms of the related Mortgage
Note, the Company shall immediately deposit in the Custodial Account from
its
own funds the amount of any interest loss or deferral caused the Purchaser
thereby.
Section
4.22 Credit
Reporting.
For
Each
Mortgage Loan, the Servicer shall furnish, on a monthly basis, complete
information (e.g., favorable and unfavorable) on the related borrower credit
files to Equifax, Experian and Trans Union Credit Information Company,
in
accordance with the Fair Credit Reporting Act and its implementing
regulations.
Section
4.23 Confidentiality/Protection
of Customer Information.
The
Company shall keep confidential and shall not divulge to any party, without
the
Purchaser's prior written consent, the price paid by the Purchaser for
the
Mortgage Loans, except to the extent that it is reasonable and necessary
for the
Company to do so in working with legal counsel, auditors, taxing authorities
or
other governmental agencies. Each party agrees that it shall comply with
all
applicable laws and regulations regarding the privacy or security of Customer
Information and shall maintain appropriate administrative, technical and
physical safeguards to protect the security, confidentiality and integrity
of
Customer Information, including maintaining security measures designed
to meet
the objectives of the Interagency Guidelines Establishing Standards for
Safeguarding Customer Information, 66 Fed. Reg. 8616 (the “Interagency
Guidelines”). For purposes of this Section, the term “Customer Information”
shall have the meaning assigned to it in the Interagency
Guidelines.
55
Section
4.24 Use
of
Subservicers and Subcontractors.
The
Company shall not hire or otherwise utilize the services of any Subservicer
to
fulfill any of the obligations of the Company under this Agreement or any
Reconstitution Agreement unless the Company complies with the provisions
of
paragraph (a) of this Section 4.24. The Company shall not hire or otherwise
utilize the services of any Subcontractor, and shall not permit any Subservicer
to hire or otherwise utilize the services of any Subcontractor, to fulfill
any
of the obligations of the Company under this Agreement or any Reconstitution
Agreement unless the Company complies with the provisions of paragraph
(b) of
this Section 4.24.
(a) It
shall
not be necessary for the Company to seek the consent of the Purchaser or
any
Depositor to the utilization of any Subservicer. The Company shall cause
any
Subservicer used by the Company (or by any Subservicer) for the benefit
of the
Purchaser and any Depositor to comply with the provisions of this Section
4.24
and with Sections 6.04, 6.06, 9.01(d)(iii), 9.01(d)(v), 9.01(d)(vii),
9.01(d)(viii) and 9.01(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 9.01(d)(iv) of this Agreement.
The
Company shall be responsible for obtaining from each Subservicer and delivering
to the Purchaser and any Depositor any servicer compliance statement required
to
be delivered by such Subservicer under Section 6.04 and any assessment
of
compliance and attestation required to be delivered by such Subservicer
under
Section 6.06 and any certification required to be delivered to the Person
that
will be responsible for signing the Sarbanes Certification under Section
6.06 as
and when required to be delivered.
(b) It
shall
not be necessary for the Company to seek the consent of the Purchaser or
any
Depositor to the utilization of any Subcontractor. The Company shall promptly
upon request provide to the Purchaser and any Depositor (or any designee
of the
Depositor, such as an administrator) a written description (in form and
substance satisfactory to the Purchaser and such Depositor) of the role
and
function of each Subcontractor utilized by the Company or any Subservicer,
specifying (i) the identity of each such Subcontractor, (ii) which (if
any) of
such Subcontractors are “participating in the servicing function” within the
meaning of Item 1122 of Regulation AB, and (iii) which elements of the
Servicing
Criteria will be addressed in assessments of compliance provided by each
Subcontractor identified pursuant to clause (ii) of this paragraph.
56
As
a
condition to the utilization of any Subcontractor determined to be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, the Company shall cause any such Subcontractor used by the
Company (or by any Subservicer) for the benefit of the Purchaser and any
Depositor to comply with the provisions of Sections 6.06 and 9.01(e) of
this
Agreement to the same extent as if such Subcontractor were the Company.
The
Company shall be responsible for obtaining from each Subcontractor and
delivering to the Purchaser and any Depositor any assessment of compliance
and
attestation and other certifications required to be delivered by such
Subcontractor under Section 6.06, in each case as and when required to
be
delivered.
Section
4.25 Prepayment
Penalties.
The
Company shall not waive any Prepayment Penalty with respect to any Mortgage
Loan. If the Company fails to collect the Prepayment Penalty, the Company
shall
pay the Purchaser at such time (by deposit to the Custodial Account) an
amount
equal to the amount of the Prepayment Penalty which was not collected.
Notwithstanding the above, the Company may waive (and shall waive, in the
case
of (v) below) a Prepayment Penalty without paying the Purchaser the amount
of
the Prepayment Penalty (i) if the Mortgage Loan is in default (defined
as 61
days or more delinquent) and such waiver would maximize recovery of total
proceeds taking into account the value of such Prepayment Penalty and the
related Mortgage Loan, (ii) if the prepayment is not a result of a refinancing
by the Company or any of its affiliates and the Mortgage Loan is foreseen
to be
in default and such waiver would maximize recovery of total proceeds taking
into
account the value of such Prepayment Penalty and the related Mortgage Loan,
(iii) if the collection of the Prepayment Penalty would be in violation
of
applicable law, (iv) if the collection of such Prepayment Penalty would
be
considered “predatory” pursuant to written guidance published or issued by any
applicable federal, state or local regulatory authority acting in its official
capacity and having jurisdiction over such matters and (v) notwithstanding
any
state or federal law to the contrary, any instance when a Mortgage Loan
is in
foreclosure.
ARTICLE
V
PAYMENTS
TO PURCHASER
Section
5.01 Remittances.
On
each
Remittance Date the Company shall remit by wire transfer of immediately
available funds to the Purchaser (a) all amounts deposited in the Custodial
Account as of the close of business on the Determination Date (net of charges
against or withdrawals from the Custodial Account pursuant to Section 4.05),
plus (b) all amounts, if any, which the Company is obligated to distribute
pursuant to Section 5.03, minus (c) any amounts attributable to Principal
Prepayments received after the applicable Principal Prepayment Period which
amounts shall be remitted on the following Remittance Date, together with
any
additional interest required to be deposited in the Custodial Account in
connection with such Principal Prepayment in accordance with Section 4.04(viii);
minus (d) any amounts attributable to Monthly Payments collected but due
on a
Due Date or Dates subsequent to the first day of the month of the Remittance
Date, and minus (e) any amounts attributable to Buydown Funds being held
in the
Custodial Account, which amounts shall be remitted on the Remittance Date
next
succeeding the Due Period for such amounts.
57
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 Company
shall
pay to the Purchaser interest on any such late payment at an annual rate
equal
to the Prime Rate, adjusted as of the date of each change, plus three percentage
points, but in no event greater than the maximum amount permitted by applicable
law. Such interest shall be deposited in the Custodial Account by the Company
on
the date such late payment is made and shall cover the period commencing
with
the day following such second Business Day and ending with the Business
Day on
which such payment is made, both inclusive. Such interest shall be remitted
along with the distribution payable on the next succeeding Remittance Date.
The
payment by the Company of any such interest shall not be deemed an extension
of
time for payment or a waiver of any Event of Default by the Company. All
cash
flows from Prepayment Penalties shall be passed through to the Purchaser
and
shall not be waived by the Company, except pursuant to Section
4.25.
Section
5.02 Statements
to Purchaser.
Not
later
than the Remittance Date, the Company shall furnish to the Purchaser a
monthly
remittance advice, with a trial balance report attached thereto, as to
the
remittance period ending on the last day of the preceding month.
Section
5.03 Monthly
Advances by Company.
On
the
Business Day immediately preceding each Remittance Date, the Company shall
deposit in the Custodial Account from its own funds or from amounts held
for
future distribution an amount equal to all Monthly Payments (with interest
adjusted to the Mortgage Loan Remittance Rate) which were due on the Mortgage
Loans during the applicable Due Period and which were delinquent at the
close of
business on the immediately preceding Determination Date or which were
deferred
pursuant to Section 4.01. Any amounts held for future distribution and
so used
shall be replaced by the Company by deposit in the Custodial Account on
or
before any future Remittance Date if funds in the Custodial Account on
such
Remittance Date shall be less than payments to the Purchaser required to
be made
on such Remittance Date. The Company's obligation to make such Monthly
Advances
as to any Mortgage Loan will continue through the last Monthly Payment
due prior
to the payment in full of the Mortgage Loan, or through the last Remittance
Date
prior to the Remittance Date for the distribution of all Liquidation Proceeds
and other payments or recoveries (including REO Disposition Proceeds, Insurance
Proceeds and Condemnation Proceeds) with respect to the Mortgage Loan;
provided,
however, that such obligation shall cease if the Company determines, in
its sole
reasonable opinion, that advances with respect to such Mortgage Loan are
non-recoverable by the Company from Liquidation Proceeds, REO Disposition
Proceeds, Insurance Proceeds, Condemnation Proceeds, or otherwise with
respect
to a particular Mortgage Loan. In the event that the Company determines
that any
such advances are non-recoverable, the Company shall provide the Purchaser
with
a certificate signed by two officers of the Company evidencing such
determination. The Company shall not have an obligation to make such Monthly
Advances as to any Mortgage Loan with respect to shortfalls relating to
the
Servicemembers Civil Relief Act or similar state and local laws.
58
ARTICLE
VI
GENERAL
SERVICING PROCEDURES
Section
6.01 Transfers
of Mortgaged Property.
The
Company shall use its best efforts to enforce any "due-on-sale" provision
contained in any Mortgage or Mortgage Note and to deny assumption by the
Person
to whom the Mortgaged Property has been or is about to be sold whether
by
absolute conveyance or by contract of sale, and whether or not the Mortgagor
remains liable on the Mortgage and the Mortgage Note. When the Mortgaged
Property has been conveyed by the Mortgagor, the Company shall, to the
extent it
has knowledge of such conveyance, exercise its rights to accelerate the
maturity
of such Mortgage Loan under the "due-on-sale" clause applicable thereto,
provided, however, that the Company shall not exercise such rights if prohibited
by law from doing so or if the exercise of such rights would impair or
threaten
to impair any recovery under the related PMI Policy, if any.
If
the
Company reasonably believes it is unable under applicable law to enforce
such
"due-on-sale" clause, the Company shall enter into (i) an assumption and
modification agreement with the Person to whom such property has been conveyed,
pursuant to which such Person becomes liable under the Mortgage Note and
the
original Mortgagor remains liable thereon or (ii) in the event the Company
is
unable under applicable law to require that the original Mortgagor remain
liable
under the Mortgage Note and the Company has the prior consent of the primary
mortgage guaranty insurer, a substitution of liability agreement with the
purchaser of the Mortgaged Property pursuant to which the original Mortgagor
is
released from liability and the purchaser of the Mortgaged Property is
substituted as Mortgagor and becomes liable under the Mortgage Note. If
an
assumption fee is collected by the Company for entering into an assumption
agreement the fee will be retained by the Company as additional servicing
compensation. In connection with any such assumption, neither the Mortgage
Interest Rate borne by the related Mortgage Note, the term of the Mortgage
Loan,
the outstanding principal amount of the Mortgage Loan nor any other material
terms shall be changed without Purchaser’s consent.
To
the
extent that any Mortgage Loan is assumable, the Company shall inquire diligently
into the credit worthiness of the proposed transferee, and shall use the
underwriting criteria for approving the credit of the proposed transferee
which
are used with respect to underwriting mortgage loans of the same type as
the
Mortgage Loan. If the credit worthiness of the proposed transferee does
not meet
such underwriting criteria, the Company diligently shall, to the extent
permitted by the Mortgage or the Mortgage Note and by applicable law, accelerate
the maturity of the Mortgage Loan.
59
Section
6.02 Satisfaction
of Mortgages and Release of Retained Mortgage Files.
Upon
the
payment in full of any Mortgage Loan, or the receipt by the Company of
a
notification that payment in full will be escrowed in a manner customary
for
such purposes, the Company shall notify the Purchaser in the monthly remittance
advice as provided in Section 5.02, and may request the release of any
Mortgage
Loan Documents.
If
the
Company satisfies or releases the lien of the Mortgage without first having
obtained payment in full of the indebtedness secured by the Mortgage (other
than
as a result of a liquidation of the Mortgaged Property pursuant to the
terms of
this Agreement) or should the Company otherwise prejudice any rights the
Purchaser may have under the mortgage instruments, upon written demand
of the
Purchaser, the Company shall repurchase the related Mortgage Loan at the
Repurchase Price by deposit thereof in the Custodial Account within two
(2)
Business Days of receipt of such demand by the Purchaser. The Company shall
maintain the Fidelity Bond and Errors and Omissions Insurance Policy as
provided
for in Section 4.12 insuring the Company against any loss it may sustain
with
respect to any Mortgage Loan not satisfied in accordance with the procedures
set
forth herein.
Section
6.03 Servicing
Compensation.
As
compensation for its services hereunder, the Company shall be entitled
to
withdraw from the Custodial Account the amount of its Servicing Fee. The
Servicing Fee shall be payable monthly and shall be computed on the basis
of the
unpaid principal balance and for the period respecting which any related
interest payment on a Mortgage Loan is received. The obligation of the
Purchaser
to pay the Servicing Fee is limited to, and payable solely from, the interest
portion (including recoveries with respect to interest from Liquidation
Proceeds, to the extent permitted by Section 4.05) of such Monthly
Payments.
Additional
servicing compensation in the form of assumption fees, to the extent provided
in
Section 6.01, and late payment charges shall be retained by the Company
to the
extent not required to be deposited in the Custodial Account. The Company
shall
be required to pay all expenses incurred by it in connection with its servicing
activities hereunder and shall not be entitled to reimbursement thereof
except
as specifically provided for herein.
Section
6.04 Annual
Statement as to Compliance.
On
or
before March 1st
of each
calendar year, commencing in 2007, the Company shall deliver to the Purchaser,
any Master Servicer and any Depositor a statement of compliance addressed
to the
Purchaser, such Master Servicer and such Depositor and signed by an authorized
officer of the Company, to the effect that (a) a review of the Company’s
activities during the immediately preceding calendar year (or applicable
portion
thereof) and of its performance under this Agreement and any applicable
Reconstitution Agreement during such period has been made under such officer’s
supervision, and (b) to the best of such officers’ knowledge, based on such
review, the Company has fulfilled all of its obligations under this Agreement
and any applicable Reconstitution Agreement in all material respects throughout
such calendar year (or applicable portion thereof) or, if there has been
a
failure to fulfill any such obligation in any material respect, specifically
identifying each such failure known to such officer and the nature and
the
status thereof.
60
Section
6.05 [Reserved]
Section
6.06 Report
on Assessment of Compliance and Attestation.
On
or
before March 1st
of each
calendar year, commencing in 2007, the Company shall (whether or not the
Mortgage Loans are then subject to a Securitization Transaction):
|
(i)
|
deliver
to the Purchaser,
any Master Servicer and any Depositor a report (in form and substance
reasonably satisfactory to the Purchaser, such Master Servicer
and such
Depositor) regarding the Company’s assessment of compliance with the
Servicing Criteria during the immediately preceding calendar
year, as
required under Rules 13a-18 and 15d-18 of the Exchange Act and
Item 1122
of Regulation AB. Such report shall be addressed to the Purchaser,
such
Master Servicer and such Depositor and signed by an authorized
officer of
the Company and shall address each of the “Applicable Servicing Criteria”
specified on Exhibit E hereto (or those Servicing Criteria otherwise
mutually agreed to by the Purchaser, the Company and any Person
that will
be responsible for signing any Sarbanes Certification with respect
to a
Securitization Transaction in response to evolving interpretations
of
Regulation AB);
|
|
(ii)
|
deliver
to the Purchaser, any Master Servicer and any Depositor a report
of a
registered public accounting firm reasonably acceptable to the
Purchaser,
such Master Servicer and such Depositor that attests to, and
reports on,
the assessment of compliance made by the Company and delivered
pursuant to
the preceding paragraph. Such attestation shall be in accordance
with
Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities
Act
and the Exchange Act;
|
|
(iii)
|
cause
each Subservicer and each Subcontractor, determined by the Company
pursuant to Section 4.24(b) to be “participating in the servicing
function” within the meaning of Item 1122 of Regulation AB, to deliver
to
the Purchaser, any Master Servicer and such Depositor an assessment
of
compliance and accountants’ attestation as and when provided in paragraphs
(i) and (ii) of this Section 6.06; and
|
|
(iv)
|
deliver,
and cause each Subservicer and each Subcontractor described in
clause
(iii) to deliver to the Purchaser, any Master Servicer any Depositor
and
any other Person that will be responsible for signing the certification
(a
“Sarbanes Certification”) required by Rules 13a-14(d) and 15d-14(d) under
the Exchange Act (pursuant to Section 302 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act of
2002) on behalf of an asset-backed issuer with respect to a Securitization
Transaction a certification, signed by the appropriate officer
of the
Company, in the form attached hereto as Exhibit
F.
|
61
The
Company acknowledges that the parties identified in clause (iv) above may
rely
on the certification provided by the Company pursuant to such clause in
signing
a Sarbanes Certification and filing such with the Commission. Neither the
Purchaser nor any Depositor will request delivery of a certification under
clause (iv) above unless a Depositor is required under the Exchange Act
to file
an annual report on Form 10-K with respect to an issuing entity whose asset
pool
includes Mortgage Loans.
Each
assessment of compliance provided by a Subservicer pursuant to Section
6.06(i)
shall address each of the Servicing Criteria specified substantially in
the form
of Exhibit
E
hereto delivered to the Purchaser at the time of any Securitization Transaction
or, in the case of a Subservicer subsequently appointed as such, on or
prior to
the date of such appointment. An assessment of compliance provided by a
Subcontractor pursuant to Section 6.06(iii)
need not address any elements of the Servicing Criteria other than those
specified by the Company pursuant to Section 4.24.
Section
6.07 Remedies.
(i) Any
failure by the Company, any Subservicer, any Subcontractor or any Third-Party
Originator to deliver any information, report, certification, accountants’
letter or other material when and as required under Article IX, Section
4.24,
Section 6.04 or Section 6.06, or any breach by the Company of a representation
or warranty set forth in Section 9.01(d)(vi)(A), or in a writing furnished
pursuant to Section 9.01(d)(vi)(B) and made as of a date prior to the closing
date of the related Securitization Transaction, to the extent that such
breach
is not cured by such closing date, or any breach by the Company of a
representation or warranty in a writing furnished pursuant to Section
9.01(d)(vi)(B) to the extent made as of a date subsequent to such closing date,
shall, except as provided in sub-clause (ii) of this Section, immediately
and
automatically, without notice or grace period, constitute an Event of Default
with respect to the Company under this Agreement and any applicable
Reconstitution Agreement, and shall entitle the Purchaser or any 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
Agreement or any applicable Reconstitution Agreement to the contrary) of
any
compensation to the Company (and, if the Company is servicing any of the
Mortgage Loans in a Securitization Transaction, appoint a successor servicer
reasonably acceptable to any Master Servicer for such Securitization
Transaction); provided,
that to
the extent that any provision of this Agreement and/or any applicable
Reconstitution Agreement expressly provides for the survival of certain
rights
or obligations following termination of the Company as servicer, such provision
shall be given effect.
(ii) Any
failure by the Company, any Subservicer or any Subcontractor to deliver
any
information, report, certification or accountants’ letter when and as required
under Section 6.04 or Section 6.06, including (except as provided below)
any
failure by the Company to identify any Subcontractor “participating in the
servicing function” within the meaning of Item 1122 of Regulation AB, which
continues unremedied for ten (10) calendar days after the date on which
such
information, report, certification or accountants’ letter was required to be
delivered shall constitute an Event of Default with respect to the Company
under
this Agreement and any applicable Reconstitution Agreement, and shall entitle
the Purchaser, any Master Servicer or any 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 Agreement to the contrary) of
any
compensation to the Company; provided that to the extent that any provision
of
this Agreement and/or any applicable Reconstitution Agreement expressly
provides
for the survival of certain rights or obligations following termination
of the
Company as servicer, such provision shall be given effect.
62
None
of
the Purchaser, any Master Servicer nor any Depositor shall be entitled
to
terminate the rights and obligations of the Company pursuant to this
subparagraph if a failure of the Company to identify a Subcontractor
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB was attributable solely to the role or functions of such
Subcontractor with respect to mortgage loans other than the Mortgage
Loans.
(iii) The
Company shall promptly reimburse the Purchaser (or any designee of the
Purchaser), any Master Servicer and any Depositor, as applicable, for all
reasonable expenses incurred by the Purchaser (or such designee) or such
Depositor, as such are incurred, in connection with the termination of
the
Company as servicer and the transfer of servicing of the Mortgage Loans
to a
successor servicer. The provisions of this paragraph shall not limit whatever
rights the Purchaser or any Depositor may have under other provisions of
this
Agreement
and/or any applicable Reconstitution Agreement or otherwise, whether in
equity
or at law, such as an action for damages, specific performance or injunctive
relief.
Section
6.08 Right
to Examine Company Records.
The
Purchaser, or its designee, shall have the right to examine and audit any
and
all of the books, records, or other information of the Company, whether
held by
the Company or by another on its behalf, with respect to or concerning
this
Agreement or the Mortgage Loans, during business hours or at such other
times as
may be reasonable under applicable circumstances, upon reasonable advance
notice. The Purchaser shall pay its own travel expenses associated with
such
examination.
Section
6.09 Compliance
with REMIC Provisions.
If
a
REMIC election has been made with respect to the arrangement under which
the
Mortgage Loans and REO Property are held, the Company shall not take any
action,
cause the REMIC to take any action or fail to take (or fail to cause to
be
taken) any action that, under the REMIC Provisions, if taken or not taken,
as
the case may be, could (i) endanger the status of the REMIC as a REMIC
or (ii)
result in the imposition of a tax upon the REMIC (including but not limited
to
the tax on “prohibited transactions” as defined in Section 860F(a)(2) of the
Code and the tax on “contributions” to a REMIC set forth in Section 860G(d) of
the Code) unless the Company has received an Opinion of Counsel (at the
expense
of the party seeking to take such action) to the effect that the contemplated
action will not endanger such REMIC status or result in the imposition
of any
such tax.
63
ARTICLE
VII
COMPANY
TO COOPERATE
Section
7.01 Provision
of Information.
During
the term of this Agreement, the Company shall furnish to the Purchaser
such
periodic, special, or other reports or information, and copies or originals
of
any documents contained in the Servicing File for each Mortgage Loan provided
for herein. All other special reports or information not provided for herein
as
shall be necessary, reasonable, or appropriate with respect to the Purchaser
or
any regulatory agency will be provided at the Purchaser’s expense. All such
reports, documents or information shall be provided by and in accordance
with
all reasonable instructions and directions which the Purchaser may
give.
The
Company shall execute and deliver all such instruments and take all such
action
as the Purchaser may reasonably request from time to time, in order to
effectuate the purposes and to carry out the terms of this
Agreement.
Section
7.02 Financial
Statements; Servicing Facility.
In
connection with marketing the Mortgage Loans, the Purchaser may make available
to a prospective purchaser a Consolidated Statement of Operations of the
Company
for the most recently completed two (2) fiscal years for which such a statement
is available, as well as a Consolidated Statement of Condition at the end
of the
last two (2) fiscal years covered by such Consolidated Statement of Operations.
The Company, upon request, also shall make available any comparable interim
statements to the extent any such statements have been prepared by or on
behalf
of the Company (and are available upon request to members or stockholders
of the
Company or to the public at large).
The
Company also shall make available to Purchaser or prospective purchasers
a
knowledgeable financial or accounting officer for the purpose of answering
questions respecting recent developments affecting the Company or the financial
statements of the Company, and to permit any prospective purchaser to inspect
the Company's servicing facilities for the purpose of satisfying such
prospective purchaser that the Company has the ability to service the Mortgage
Loans as provided in this Agreement.
ARTICLE
VIII
THE
COMPANY
64
Section
8.01 Indemnification;
Third Party Claims.
The
Company shall indemnify the Purchaser and each successor in interest to
the
Purchaser and hold each such party 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 such
party
may sustain in any way related to the failure of the Company to perform
its
duties and service the Mortgage Loans in strict compliance with the terms
of
this Agreement. The Company immediately shall notify the Purchaser if a
claim is
made by a third party with respect to this Agreement or the Mortgage Loans,
assume (with the prior written consent of the Purchaser) the defense of
any such
claim and pay all expenses in connection therewith, including counsel fees,
and
promptly pay, discharge and satisfy any judgment or decree which may be
entered
against it or the Purchaser in respect of such claim. The Company shall
follow
any written instructions received from the Purchaser in connection with
such
claim. The Purchaser promptly shall reimburse the Company for all amounts
advanced by it pursuant to the preceding sentence except when the claim
is in
any way related to the Company's indemnification pursuant to Section 3.03,
or
the failure of the Company to service and administer the Mortgage Loans
in
strict compliance with the terms of this Agreement.
Section
8.02 Merger
or Consolidation of the Company.
The
Company shall keep in full effect its existence, rights and franchises,
and
shall obtain and preserve its qualification to do business in each jurisdiction
in which such qualification is or shall be necessary to protect the validity
and
enforceability of this Agreement or any of the Mortgage Loans and to perform
its
duties under this Agreement.
Any
Person into which the Company may be merged or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Company
shall be a party, or any Person succeeding to the business of the Company,
shall
be the successor of the Company hereunder, without the execution or filing
of
any paper or any further act on the part of any of the parties hereto,
anything
herein to the contrary notwithstanding, provided, however, that the successor
or
surviving Person shall be an institution which is a ▇▇▇▇▇▇ ▇▇▇/▇▇▇▇▇▇▇
Mac-approved seller/servicer in good standing. Furthermore, in the event
the
Company transfers or otherwise disposes of all or substantially all of
its
assets to an affiliate of the Company, such affiliate shall satisfy the
condition above, and shall also be fully liable to the Purchaser for all
of the
Company's obligations and liabilities hereunder.
Section
8.03 Limitation
on Liability of Company and Others.
Neither
the Company nor any of the directors, officers, employees or agents of
the
Company shall be under any liability to the Purchaser for any action taken
or
for refraining from the taking of any action in good faith pursuant to
this
Agreement, or for errors in judgment, provided, however, that this provision
shall not protect the Company or any such Person against any breach of
warranties or representations made herein, or failure to perform its obligations
in strict compliance with any standard of care set forth in this Agreement
or
any other liability which would otherwise be imposed under this Agreement.
The
Company and any director, officer, employee or agent of the Company may
rely in
good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder. The Company
shall not be under any obligation to appear in, prosecute or defend any
legal
action which is not incidental to its duties to service the Mortgage Loans
in
accordance with this Agreement and which in its opinion may involve it
in any
expense or liability, provided, however, that the Company may, with the
consent
of the Purchaser, undertake any such action which it may deem necessary
or
desirable in respect to this Agreement and the rights and duties of the
parties
hereto. In such event, the Company shall be entitled to reimbursement from
the
Purchaser of the reasonable legal expenses and costs of such
action.
65
Section
8.04 Limitation
on Resignation and Assignment by Company.
The
Purchaser has entered into this Agreement with the Company and subsequent
purchasers will purchase the Mortgage Loans in reliance upon the independent
status of the Company, and the representations as to the adequacy of its
servicing facilities, personnel, records and procedures, its integrity,
reputation and financial standing, and the continuance thereof. Therefore,
the
Company shall neither assign this Agreement nor the servicing rights hereunder
or delegate its rights or duties hereunder (other than pursuant to Section
4.01)
or any portion hereof or sell or otherwise dispose of all of its property
or
assets without the prior written consent of the Purchaser, which consent
shall
not be unreasonably withheld.
The
Company shall not resign from the obligations and duties hereby imposed
on it
except by mutual consent of the Company and the Purchaser or upon the
determination that its duties hereunder are no longer permissible under
applicable law and such incapacity cannot be cured by the Company. Any
such
determination permitting the resignation of the Company shall be evidenced
by an
Opinion of Counsel to such effect delivered to the Purchaser which Opinion
of
Counsel shall be in form and substance acceptable to the Purchaser. No
such
resignation shall become effective until a successor shall have assumed
the
Company's responsibilities and obligations hereunder in the manner provided
in
Section 12.01.
Without
in any way limiting the generality of this Section 8.04, in the event that
the
Company either shall assign this Agreement or the servicing responsibilities
hereunder or delegate its rights or duties hereunder (other than pursuant
to
Section 4.01) or any portion thereof or sell or otherwise dispose of all
or
substantially all of its property or assets, without the prior written
consent
of the Purchaser, then the Purchaser shall have the right to terminate
this
Agreement upon notice given as set forth in Section 10.01, without any
payment
of any penalty or damages and without any liability whatsoever to the Company
or
any third party.
ARTICLE
IX
AGENCY
SALES, SECURITIZATION TRANSACTIONS AND WHOLE LOAN
TRANSFERS
66
Section
9.01 Agency
Sales, Securitization Transactions and Whole Loan Transfers
The
Purchaser and the Company agree that with respect to some or all of the
Mortgage
Loans, the Purchaser, at its sole option, may effect Whole Loan Transfers,
Agency Sales or Securitization Transactions, retaining the Company as the
servicer thereof or subservicer if a master servicer is employed, or as
applicable the "seller/servicer." On the Reconstitution Date, the Mortgage
Loans
transferred may cease to be covered by this Agreement; provided, however,
that
in the event that any Mortgage Loan transferred pursuant to this Section
9.01 is
rejected by the transferee, the Company shall continue to service such
rejected
Mortgage Loan on behalf of the Purchaser in accordance with the terms and
provisions of this Agreement.
The
Company shall cooperate with the Purchaser in connection with each Whole
Loan
Transfer, Agency Sale or Securitization Transaction in accordance with
this
Section 9.01 and provided that no such Whole Loan Transfer, Agency Sale
or
Securitization Transaction shall create a greater obligation or cost on
the part
of the Company than otherwise set forth in this Agreement. In connection
therewith:
| (a) |
the
Company shall make all representations and warranties made herein
with
respect to the Mortgage Loans as of the Closing Date and all
representations and warranties made herein with respect to the
Company
itself as of the closing date of each Whole Loan Transfer, Agency
Sale or
Securitization Transaction. In the event of a Securitization
Transaction
or Agency Sale for which ▇▇▇▇▇▇▇ Mac representations and warranties
are
required, the Company agrees to make the representations and
warranties
listed on Exhibit I of this Agreement, as of the related Closing
Date, at
the time of such Securitization Transaction or Agency Sale, with
respect
to the Mortgage Loans included therein;
|
|
(b)
|
the
Company shall negotiate in good faith and execute any (i) seller/servicer
agreements, including, without limitation, a pooling and servicing
agreement required to effectuate the foregoing provided such
agreements
create no greater obligation or cost on the part of the Company
than
otherwise set forth in this Agreement or (ii) an Assignment,
Assumption
and Recognition Agreement, in the form attached hereto as Exhibit
G, or
(iii) a credit risk management agreement in form and substance
reasonably
acceptable to the credit risk manager and the
Company;
|
|
(c)
|
the
Company shall execute any seller/servicer agreements required
within a
reasonable period of time after receipt of such seller/servicer
agreements
which time shall be sufficient for the Company and Company's
counsel to
review such seller/servicer agreements. Under this Agreement,
the Company
shall retain a Servicing Fee for each Mortgage Loan at the Servicing
Fee
Rate;
|
|
(d)
|
In
connection with any Securitization Transaction, the Company shall
(1)
within five (5) Business Days following request by the Purchaser
or any
Depositor, provide to the Purchaser and such Depositor (or, as
applicable,
cause each Third-Party Originator and each Subservicer to provide),
in
writing and in form and substance reasonably satisfactory to
the Purchaser
and such Depositor, the information and materials specified in
paragraphs
(i), (ii), (iii) and (vii) of this subsection (d), and (2) as
promptly as
practicable following notice to or discovery by the Company,
provide to
the Purchaser and any Depositor (in writing and in form and substance
reasonably satisfactory to the Purchaser and such Depositor)
the
information specified in paragraph (iv) of this subsection (d).
|
67
(i) If
so
requested by the Purchaser or any Depositor, the Company shall provide
such
information regarding (1) the Company, as originator of the Mortgage Loans
(including as an acquirer of Mortgage Loans from a Qualified Correspondent),
or
(2) each Third-Party Originator, and (3) as applicable, each Subservicer,
as is
requested for the purpose of compliance with
Items 1103(a)(1), 1105, 1110, 1117 and 1119 of Regulation AB. Such information
shall include, at a minimum:
| (A) |
the
originator’s form of organization;
|
|
(B)
|
a
description of the originator’s origination program and how long the
originator has been engaged in originating residential mortgage
loans,
which description shall include a discussion of the originator’s
experience in originating mortgage loans of a similar type as
the Mortgage
Loans; information regarding the size and composition of the
originator’s
origination portfolio; and information that may be material,
in the good
faith judgment of the Purchaser or any Depositor, to an analysis
of the
performance of the Mortgage Loans, including the originators’
credit-granting or underwriting criteria for mortgage loans of
similar
type(s) as the Mortgage Loans and such other information as the
Purchaser
or any Depositor may reasonably request for the purpose of compliance
with
Item 1110(b)(2) of Regulation AB;
|
|
(C)
|
a
description of any material legal or governmental proceedings
pending (or
known to be contemplated) against the Company, each Third-Party
Originator
and each Subservicer; and
|
|
(D)
|
a
description of any affiliation or relationship (of a type described
in
Item 1119 of Regulation AB) between the Company, each Third-Party
Originator, each Subservicer and any of the following parties
to a
Securitization Transaction, as such parties are identified to
the Company
by the Purchaser or any Depositor in writing in advance of a
Securitization Transaction:
|
|
(1)
|
the
sponsor;
|
|
(2)
|
the
depositor;
|
|
(3)
|
the
issuing entity;
|
68
|
(4)
|
any
servicer;
|
|
(5)
|
any
trustee;
|
|
(6)
|
any
originator;
|
|
(7)
|
any
significant obligor;
|
|
(8)
|
any
enhancement or support provider;
and
|
|
(9)
|
any
other material transaction
party.
|
|
(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 (1) the Company, if the Company is an originator
of
Mortgage Loans (including as an acquirer of Mortgage Loans from
a
Qualified Correspondent), and/or (2) each Third-Party Originator.
Such
Static Pool Information shall be prepared by the Company (or
Third-Party
Originator) on the basis of its reasonable, good faith interpretation
of
the requirements of Item 1105(a)(1)-(3) of Regulation AB. To
the extent
that there is reasonably available to the Company (or Third-Party
Originator) Static Pool Information with respect to more than
one mortgage
loan type, the Purchaser or any Depositor shall be entitled to
specify
whether some or all of such information shall be provided pursuant
to this
paragraph. The content of such Static Pool Information may be
in the form
customarily provided by the Company, and need not be customized
for the
Purchaser or any Depositor. Such Static Pool Information for
each vintage
origination year or prior securitized pool, as applicable, shall
be
presented in increments no less frequently than quarterly over
the life of
the mortgage loans included in the vintage origination year or
prior
securitized pool. The most recent periodic increment must be
as of a date
no later than 135 days prior to the date of the prospectus or
other
offering document in which the Static Pool Information is to
be included
or incorporated by reference. The Static Pool Information shall
be
provided in an electronic format that provides a permanent record
of the
information provided, such as a portable document format (pdf)
file, or
other such electronic format reasonably required by the Purchaser
or the
Depositor, as applicable.
|
Promptly
following notice or discovery of a material error in Static Pool Information
provided pursuant to the immediately preceding paragraph (including an
omission
to include therein information required to be provided pursuant to such
paragraph), the Company shall provide corrected Static Pool Information
to the
Purchaser or any Depositor, as applicable, in the same format in which
Static
Pool Information was previously provided to such party by the
Company.
69
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 reasonably acceptable to the Purchaser
or
Depositor, as applicable, pertaining to Static Pool Information relating
to
prior securitized pools for securitizations closed on or after January
1, 2006
or, in the case of Static Pool Information with respect to the Company’s or
Third-Party Originator’s originations or purchases, to calendar months
commencing January 1, 2006, as the Purchaser or such Depositor shall reasonably
request. Such letters shall be addressed to and be for the benefit of such
parties as the Purchaser or such Depositor shall designate, which may include,
by way of example, any sponsor, any Depositor and any broker dealer acting
as
underwriter, placement agent or initial purchaser with respect to a
Securitization Transaction. Any such statement or letter may take the form
of a
standard, generally applicable document accompanied by a reliance letter
authorizing reliance by the addressees designated by the Purchaser or such
Depositor.
|
(iii)
|
If
so requested by the Purchaser or any Depositor, the Company shall
provide
such information regarding the Company, as servicer of the Mortgage
Loans,
and each Subservicer (each of the Company and each Subservicer,
for
purposes of this paragraph, a “Servicer”), as is requested for the purpose
of compliance with Items 1108, 1117 and 1119 of Regulation AB.
Such
information shall include, at a minimum:
|
|
(A)
|
the
Servicer’s form of organization;
|
|
(B)
|
a
description of how long the Servicer has been servicing residential
mortgage loans; a general discussion of the Servicer’s experience in
servicing assets of any type as well as a more detailed discussion
of the
Servicer’s experience in, and procedures for, the servicing function it
will perform under this Agreement and any Reconstitution Agreements;
information regarding the size, composition and growth of the
Servicer’s
portfolio of residential mortgage loans of a type similar to
the Mortgage
Loans and information on factors related to the Servicer that
may be
material, in the good faith judgment of the Purchaser or any
Depositor, to
any analysis of the servicing of the Mortgage Loans or the related
asset-backed securities, as applicable, including, without limitation:
|
|
(1)
|
whether
any prior securitizations of mortgage loans of a type similar
to the
Mortgage Loans involving the Servicer have defaulted or experienced
an
early amortization or other performance triggering event because
of
servicing during the three-year period immediately preceding
the related
Securitization Transaction;
|
70
|
(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;
|
71
|
(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;
|
|
(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;
|
|
(I)
|
a
description of any material legal or governmental proceedings
pending (or
known to be contemplated) against the Servicer;
and
|
|
(J)
|
a
description of any affiliation or relationship between the Servicer
and
any of the following parties to a Securitization Transaction,
as such
parties are identified to the Servicer 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;
and
|
|
(9)
|
any
other material transaction party.
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|
(iv)
|
For
the purpose of satisfying the reporting obligation under the
Exchange Act
with respect to any class of asset-backed securities, the Company
shall
(or shall cause each Subservicer and Third-Party Originator to)
(1)
provide prompt notice to the Purchaser, any Master Servicer and
any
Depositor in writing of (A) any material litigation or governmental
proceedings involving the Company, any Subservicer or any Third-Party
Originator, (B) any affiliations or relationships that develop
following
the closing date of a Securitization Transaction between the
Company, any
Subservicer or any Third-Party Originator and any of the parties
specified
in Section 9.01(d)(i)(D) (and any other parties identified in
writing by
the requesting party) with respect to such Securitization Transaction,
(C)
any Event of Default under the terms of this Agreement or any
Reconstitution Agreement, (D) any merger, consolidation or sale
of
substantially all of the assets of the Company, and (E) the Company’s
entry into an agreement with a Subservicer to perform or assist
in the
performance of any of the Company’s obligations under this Agreement or
any Reconstitution Agreement and (2) provide to the Purchaser
and any
Depositor a description of such proceedings, affiliations or
relationships.
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72
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(v)
|
As
a condition to the succession to the Company or any Subservicer
as
servicer or Subservicer under this Agreement or any Reconstitution
Agreement by any Person (i) into which the Company or such Subservicer
may
be merged or consolidated, or (ii) which may be appointed as
a successor
to the Company or any Subservicer, the Company shall provide
to the
Purchaser and any Depositor, at least fifteen (15) calendar days
prior to
the effective date of such succession or appointment, (x) written
notice
to the Purchaser and any Depositor of such succession or appointment
and
(y) in writing and in form and substance reasonably satisfactory
to the
Purchaser and such Depositor, all information reasonably requested
by the
Purchaser or any Depositor in order to comply with is reporting
obligation
under Item 6.02 of Form 8-K with respect to any class of asset-backed
securities.
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|
(vi)
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(A)
The Company shall be deemed to represent to the Purchaser,
to any Master
Servicer and to any Depositor, as of the date on which information
is
first provided to the Purchaser, any Master Servicer or any
Depositor
under this Section 9.01(d) that, except as disclosed in writing
to the
Purchaser, such Master Servicer or such Depositor prior to
such date: (1)
the Company is not aware and has not received notice that any
default,
early amortization or other performance triggering event has
occurred as
to any other securitization due to any act or failure to act
of the
Company; (2) the Company has not been terminated as servicer
in a
residential mortgage loan securitization, either due to a servicing
default or to application of a servicing performance test or
trigger; (3)
no material noncompliance with the applicable servicing criteria
with
respect to other securitizations of residential mortgage loans
involving
the Company as servicer has been disclosed or reported by the
Company; (4)
no material changes to the Company’s policies or procedures with respect
to the servicing function it will perform under this Agreement
and any
Reconstitution Agreement for mortgage loans of a type similar
to the
Mortgage Loans have occurred during the three-year period immediately
preceding the related Securitization Transaction; (5) there
are no aspects
of the Company’s financial condition that could have a material adverse
effect on the performance by the Company of its servicing obligations
under this Agreement or any Reconstitution Agreement; (6) there
are no
material legal or governmental proceedings pending (or known
to be
contemplated) against the Company, any Subservicer or any Third-Party
Originator; and (7) there are no affiliations, relationships
or
transactions relating to the Company, any Subservicer or any
Third-Party
Originator with respect to any Securitization Transaction and
any party
thereto identified by the related Depositor of a type described
in Item
1119 of Regulation AB.
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73
(B) If
so
requested by the Purchaser, any Master Servicer or any Depositor on any
date
following the date on which information is first provided to the Purchaser,
any
Master Servicer or any Depositor under Section 9.01(d), the Company shall,
within five (5) Business Days following such request, confirm in writing
the
accuracy of the representations and warranties set forth in sub clause
(A) above
or, if any such representation and warranty is not accurate as of the date
of
such request, provide reasonably adequate disclosure of the pertinent facts,
in
writing, to the requesting party.
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(vii)
|
In
addition to such information as the Company, as servicer, is
obligated to
provide pursuant to other provisions of this Agreement, not later
than ten
(10) days prior to the deadline for the filing of any distribution
report
on Form 10-D in respect of any Securitization Transaction that
includes
any of the Mortgage Loans serviced by the Company or any Subservicer,
the
Company or such Subservicer, as applicable, shall, to the extent
the
Company or such Subservicer has knowledge, provide to the party
responsible for filing such report (including, if applicable,
the Master
Servicer) notice of the occurrence of any of the following events
along
with all information, data, and materials related thereto as
may be
required to be included in the related distribution report on
Form 10-D
(as specified in the provisions of Regulation AB referenced
below):
|
(1) any
material modifications, extensions or waivers of pool asset terms, fees,
penalties or payments during the distribution period or that have cumulatively
become material over time (Item 1121 (a)(11) of Regulation AB);
(2) material
breaches of pool asset representations or warranties or transaction covenants
(Item 1121(a)(12) of Regulation AB); and
(3) information
regarding new asset-backed securities issuances backed by the same pool
assets,
any pool asset changes (such as, additions, substitutions or repurchases),
and
any material changes in origination, underwriting or other criteria for
acquisition or selection of pool assets (Item 1121(a)(14) of Regulation
AB).
74
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(viii)
|
The
Company shall provide to the Purchaser, any Master Servicer and
any
Depositor, evidence of the authorization of the person signing
any
certification or statement, copies or other evidence of Fidelity
Bond
Insurance and Errors and Omission Insurance policy, financial
information
and reports, and such other information related to the Company
or any
Subservicer or the Company or such Subservicer’s performance
hereunder.
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|
(ix)
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If
so requested by the Purchaser or any Depositor for the purpose
of
satisfying its reporting obligations under the Exchange Act pursuant
to
Item 1111 of Regulation AB, the Company shall (or shall cause
each
Third-Party Originator to) provide the historical delinquency
experience
of the Mortgage Loans for the twelve-month period prior to the
date of
such request.
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|
(e)
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The
Company shall indemnify the Purchaser, each affiliate of the
Purchaser,
and each of the following parties participating in a Securitization
Transaction: each sponsor and issuing entity; each Person (including,
but
not limited to, any Master Servicer if applicable) responsible
for the
preparation, execution or filing of any report required to be
filed with
the Commission with respect to such Securitization Transaction,
or for
execution of a certification pursuant to Rule 13a-14(d) or Rule
15d-14(d)
under the Exchange Act with respect to such Securitization Transaction;
each broker dealer acting as underwriter, placement agent or
initial
purchaser, each Person who controls any of such parties or the
Depositor
(within the meaning of Section 15 of the Securities Act and Section
20 of
the Exchange Act); and the respective present and former directors,
officers, employees and agents of each of the foregoing and of
the
Depositor (each, an “Indemnified Party”), and shall hold each of them
harmless from and against any losses, damages, penalties, fines,
forfeitures, legal fees and expenses and related costs, judgments,
and any
other costs, fees and expenses that any of them may sustain arising
out of
or based upon:
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|
(i)
|
(A)
any untrue statement of a material fact contained or alleged
to be
contained in any information, report, certification, accountants’ letter
or other material provided in written or electronic form under
Sections
4.24, 6.04, 6.06, 9.01(d) and (e) by or on behalf of the Company,
or
provided under Sections 4.24, 6.04, 6.06, 9.01(d) and (e) by
or on behalf
of any Subservicer, Subcontractor or Third-Party Originator
(collectively,
the “Company Information”), or (B) the omission or alleged omission to
state in the Company Information a material fact required to
be stated in
the Company Information or necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not
misleading; provided,
by way of clarification, that
clause (B) of this paragraph shall be construed solely by reference
to the
Company Information and not to any other information communicated
in
connection with a sale or purchase of securities, without regard
to
whether the Company Information or any portion thereof is presented
together with or separately from such other information;
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75
|
(ii)
|
any
breach by the Company of its obligations under this Section 9.01(e),
including particularly any failure by the Company, any Subservicer,
any
Subcontractor or any Third-Party Originator to deliver any information,
report, certification, accountants’ letter or other material when and as
required under Sections 4.24, 6.04, 6.06 and 9.01(d), including
any
failure by the Company to identify any Subcontractor “participating in the
servicing function” within the meaning of Item 1122 of Regulation AB;
or
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(iii)
|
any
breach by the Company of a representation or warranty set forth
in Section
9.01(d)(vi)(A) or in a writing furnished pursuant to Section
9.01(d)(vi)(B) and made as of a date prior to the closing date
of the
related Securitization Transaction, to the extent that such
breach is not
cured by such closing date, or any breach by the Company of
a
representation or warranty in a writing furnished pursuant
to Section
9.01(d)(vi)(B) to the extent made as of a date subsequent to
such closing
date; or
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|
(iv)
|
the
negligence, bad faith or willful misconduct of the Company
in connection
with its performance under Sections 4.24, 6.04, 6.06 or
9.01(d).
|
If
the
indemnification provided for herein is unavailable or insufficient to hold
harmless an Indemnified Party, then the Company agrees that it shall contribute
to the amount paid or payable by such Indemnified Party as a result of
any
claims, losses, damages or liabilities incurred by such Indemnified Party
in
such proportion as is appropriate to reflect the relative fault of such
Indemnified Party on the one hand and the Company on the other.
In
the
case of any failure of performance described in sub-clause (ii) of this
Section
9.01(e), the Company shall promptly reimburse the Purchaser, any Depositor,
as
applicable, and each Person responsible for the preparation, execution
or filing
of any report required to be filed with the Commission with respect to
such
Securitization Transaction, or for execution of a certification pursuant
to Rule
13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to such
Securitization Transaction, for all costs reasonably incurred by each such
party
in order to obtain the information, report, certification, accountants’ letter
or other material not delivered as required by the Company, any Subservicer,
any
Subcontractor or any Third-Party Originator.
This
indemnification shall survive the termination of this Agreement or the
termination of any party to this Agreement.
76
|
(f)
|
The
Purchaser and a credit-worthy parent of the Purchaser, reasonably
acceptable to the Company shall
indemnify the Company, each affiliate of the Company, each Person
who
controls any of such parties or the Company (within the meaning
of Section
15 of the Securities Act and Section 20 of the Exchange Act)
and the
respective present and former directors, officers, employees
and agents of
each of the foregoing and of the Company, and shall hold each
of them
harmless from and against any losses, damages, penalties, fines,
forfeitures, legal fees and expenses and related costs, judgments,
and any
other costs, fees and expenses that any of them may sustain arising
out of
or based upon:
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|
(i)
|
any
untrue statement of a material fact contained or alleged to be
contained
in any offering materials related to a Securitization Transaction,
including without limitation the registration statement, prospectus,
prospectus supplement, any private placement memorandum, any
free
writing prospectuses, any ABS informational and computational
material,
and any amendments or supplements to the foregoing (collectively,
the
“Securitization Materials”) or
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|
(ii)
|
the
omission or alleged omission to state in the Securitization Materials
a
material fact required to be stated in the Securitization Materials
or
necessary in order to make the statements therein, in the light
of the
circumstances under which they were made, not misleading,
|
but
only
to the extent that such untrue statement or alleged untrue statement or
omission
or alleged omission is other than a statement or omission arising out of,
resulting from, or based upon the Company Information.
If
the
indemnification provided for herein is unavailable or insufficient to hold
harmless an Indemnified Party, then the Purchaser agrees that it shall
contribute to the amount paid or payable by such Indemnified Party as a
result
of any claims, losses, damages or liabilities incurred by such Indemnified
Party
in such proportion as is appropriate to reflect the relative fault of such
Indemnified Party on the one hand and the Purchaser on the other.
This
indemnification shall survive the termination of this Agreement or the
termination of any party to this Agreement.
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(g)
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The
Company shall, at any time as required by any Rating Agency and
in
accordance with Section 2.02, provide such additional documents
from the
related Retained Mortgage File to the
Custodian.
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The
Purchaser and the Company acknowledge and agree that the purpose of Section
9.01(d) is to facilitate compliance by the Purchaser and any Depositor
with the
provisions of Regulation AB and related rules and regulations of the Commission.
Although Regulation AB is applicable by its terms only to offerings of
asset-backed securities that are registered under the Securities Act, the
Company acknowledges that investors in privately offered securities may
require
that the Purchaser or any Depositor provide comparable disclosure in
unregistered offerings. References in this Agreement to compliance with
Regulation AB include provisions of comparable disclosure in private
offerings.
77
Neither
the Purchaser nor any Depositor shall exercise its right to request delivery
of
information or other performance under these provisions other than in good
faith, or for purposes other than compliance with the Securities Act, the
Exchange Act and the rules and regulations of the Commission thereunder
(or the
provision in a private offering of disclosure comparable to that required
under
the Securities Act). The Company acknowledges that interpretations of the
requirements of Regulation AB may change over time, whether due to interpretive
guidance provided by the Commission or its staff, consensus among participants
in the asset-backed securities markets, advice of counsel, or otherwise,
and
agrees to comply with requests made by the Purchaser, any Master Servicer
or any
Depositor in good faith for delivery of information under these provisions
on
the basis of evolving interpretations of Regulation AB. In connection with
any
Securitization Transaction, the Company shall cooperate fully with the
Purchaser
and any Master Servicer to deliver to the Purchaser (including any of its
assignees or designees), any Master Servicer and any Depositor, any and
all
statements, reports, certifications, records and any other information
necessary
in the good faith determination of the Purchaser, the Master Servicer or
any
Depositor to permit the Purchaser, such Master Servicer or such Depositor
to
comply with the provisions of Regulation AB, together with such disclosures
relating to the Company, any Subservicer, any Third-Party Originator and
the
Mortgage Loans, or the servicing of the Mortgage Loans, reasonably believed
by
the Purchaser or any Depositor to be necessary in order to effect such
compliance.
The
Purchaser (including any of its assignees or designees) shall cooperate
with the
Company by providing timely notice of requests for information under these
provisions and by reasonably limiting such requests to information required,
in
the Purchaser’s reasonable judgment, to comply with Regulation AB.
In
the
event the Purchaser has elected to have the Company hold record title to
the
Mortgages, prior to the Reconstitution Date, the Company shall prepare
an
Assignment of Mortgage in blank or to the trustee from the Company acceptable
to
the trustee for each Mortgage Loan that is part of the Whole Loan Transfers,
Agency Sales or Securitization Transactions. The Purchaser shall pay all
preparation and recording costs associated therewith, if such Assignments
of
Mortgage have been previously prepared and recorded in the name of the
Purchaser
or its designee. The Company shall execute each Assignment of Mortgage,
track
such Assignments of Mortgage to ensure they have been recorded and deliver
them
as required by the trustee upon the Company's receipt thereof. Additionally,
the
Company shall prepare and execute, at the direction of the Purchaser, any
note
endorsements in connection with any and all seller/servicer agreements.
If
required at any time by a Rating Agency, Purchaser or successor purchaser
in
connection with any Whole Loan Transfer, Agency Sale or Securitization
Transaction, the Company shall deliver any document(s) from its Retained
Mortgage File within thirty (30) days to the Custodian, successor purchaser
or
other designee of the Purchaser as said Rating Agency, Purchaser or successor
purchaser may require.
78
All
Mortgage Loans (i) not sold or transferred pursuant to Whole Loan Transfers,
Agency Sales or Securitization Transactions or (ii) that are subject to
a
Securitization Transaction for which the related trust is terminated for
any
reason, shall remain subject to this Agreement and shall continue to be
serviced
in accordance with the terms of this Agreement and with respect thereto
this
Agreement shall remain in full force and effect.
ARTICLE
X
DEFAULT
Section
10.01 Events
of Default.
Each
of
the following shall constitute an Event of Default on the part of the
Company:
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(i)
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any
failure by the Company to remit to the Purchaser any payment
required to
be made under the terms of this Agreement which continues unremedied
for a
period of one (1) Business Day after the date upon receipt of
written
notice, which written notice may be a facsimile, is received
by the
Company at the addresses listed in Section 12.05 hereof of such
failure,
requiring the same to be remedied, shall have been given to the
Company by
the Purchaser; or
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|
(ii)
|
failure
by the Company duly to observe or perform in any material respect any
other of the covenants or agreements on the part of the Company
set forth
in this Agreement or in the Custodial Agreement which continues
unremedied
for a period of thirty (30) days after the date on which written
notice of
such failure, requiring the same to be remedied, shall have been
given to
the Company by the Purchaser or by the Custodian;
or
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(iii)
|
failure
by the Company to maintain its license to do business in any
jurisdiction
where the Mortgaged Property is located if such license is required;
or
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|
(iv)
|
a
decree or order of a court or agency or supervisory authority
having
jurisdiction for the appointment of a conservator or receiver
or
liquidator in any insolvency, readjustment of debt, including
bankruptcy,
marshaling of assets and liabilities or similar proceedings,
or for the
winding-up or liquidation of its affairs, shall have been entered
against
the Company and such decree or order shall have remained in force
undischarged or unstayed for a period of sixty (60) days;
or
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|
(v)
|
the
Company shall consent to the appointment of a conservator or
receiver or
liquidator in any insolvency, readjustment of debt, marshaling
of assets
and liabilities or similar proceedings of or relating to the
Company or of
or relating to all or substantially all of its property;
or
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(vi)
|
the
Company shall admit in writing its inability to pay its debts
generally as
they become due, file a petition to take advantage of any applicable
insolvency, bankruptcy or reorganization statute, make an assignment
for
the benefit of its creditors, voluntarily suspend payment of
its
obligations or cease its normal business operations for three
(3) Business
Days; or
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79
|
(vii)
|
the
Company ceases to meet the qualifications of a ▇▇▇▇▇▇ ▇▇▇/▇▇▇▇▇▇▇
Mac
servicer or the Company is not eligible to act as servicer for
mortgage
loans subject to residential mortgage backed securities transactions
rated
by any nationally recognized rating agency or is eligible to
act as such
only with enhanced credit support;
or
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|
(viii)
|
the
Company attempts to assign its right to servicing compensation
hereunder
or to assign this Agreement or the servicing responsibilities
hereunder or
to delegate its duties hereunder or any portion thereof in violation
of
Section 8.04; or
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|
(ix)
|
failure
by the Company to duly perform, within the required time period,
its
obligations under Sections 4.24, 6.04 and 6.06 which failure
continues
unremedied for a period of fifteen (15) calendar days after the
date on
which written notice of such failure, requiring the same to be
remedied,
shall have been given to the Company by the
Purchaser.
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|
(x)
|
an
Event of Default as defined in Section 6.07.
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If
the
Company obtains knowledge of an Event of Default, the Company shall promptly
notify the Purchaser. In each and every such case, so long as an Event
of
Default shall not have been remedied, in addition to whatever rights the
Purchaser may have at law or equity to damages, including injunctive relief
and
specific performance, the Purchaser, by notice in writing to the Company,
may
terminate all the rights and obligations of the Company under this Agreement
and
in and to the Mortgage Loans and the proceeds thereof.
Upon
receipt by the Company of such written notice, all authority and power
of the
Company under this Agreement, whether with respect to the Mortgage Loans
or
otherwise, shall pass to and be vested in the successor appointed pursuant
to
Section 12.01. Upon written request from any Purchaser, the Company shall
prepare, execute and deliver to the successor entity designated by the
Purchaser
any and all documents and other instruments, place in such successor's
possession all Retained Mortgage Files, and do or cause to be done all
other
acts or things necessary or appropriate to effect the purposes of such
notice of
termination, including but not limited to the transfer and endorsement
or
assignment of the Mortgage Loans and related documents, at the Company's
sole
expense. The Company shall cooperate with the Purchaser and such successor
in
effecting the termination of the Company's responsibilities and rights
hereunder, including without limitation, the transfer to such successor
for
administration by it of all cash amounts which shall at the time be credited
by
the Company to the Custodial Account or Escrow Account or thereafter received
with respect to the Mortgage Loans.
Section
10.02 Waiver
of Defaults.
80
By
a
written notice, the Purchaser may waive any default by the Company in the
performance of its obligations hereunder and its consequences. Upon any
waiver
of a past default, such default shall cease to exist, and any Event of
Default
arising therefrom shall be deemed to have been remedied for every purpose
of
this Agreement. No such waiver shall extend to any subsequent or other
default
or impair any right consequent thereon except to the extent expressly so
waived.
ARTICLE
XI
TERMINATION
Section
11.01 Termination.
This
Agreement shall terminate upon either: (i) the later of the final payment
or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or the disposition of any REO Property with respect to the last Mortgage
Loan and the remittance of all funds due hereunder; or (ii) mutual consent
of
the Company and the Purchaser in writing.
Section
11.02 Termination
Without Cause.
The
Purchaser may terminate, at its sole option, any rights the Company may
have
hereunder, without cause as provided in this Section 11.02. Any such notice
of
termination shall be in writing and delivered to the Company by registered
mail
as provided in Section 12.05.
The
Company shall be entitled to receive, as such liquidated damages, upon
the
transfer of the servicing rights, an amount equal to: (i) 2.75% of the
aggregate
outstanding principal amount of the Mortgage Loans as of the termination
date
paid by the Purchaser to the Company with respect to all of the Mortgage
Loans
for which a servicing fee rate of .25% is paid per annum, (ii) 3.25% of
the
aggregate outstanding principal amount of the Mortgage Loans as of the
termination date paid by the Purchaser to the Company with respect to all
of the
Mortgage Loans for which a servicing fee rate of .375% is paid per annum,
and
(iii) 3.75% of the aggregate outstanding principal amount of the Mortgage
Loans
as of the termination date paid by the Purchaser to the Company with respect
to
all of the Mortgage Loans for which a servicing fee rate of .44% or greater
is
paid per annum.
ARTICLE
XII
MISCELLANEOUS
PROVISIONS
Section
12.01 Successor
to Company.
Prior
to
termination of the Company's responsibilities and duties under this Agreement
pursuant to Sections 8.04, 10.01, 11.01 (ii) or pursuant to Section 11.02
the
Purchaser shall, (i) succeed to and assume all of the Company's
responsibilities, rights, duties and obligations under this Agreement,
or (ii)
appoint a successor having the characteristics set forth in Section 8.02
and
which shall succeed to all rights and assume all of the responsibilities,
duties
and liabilities of the Company under this Agreement prior to the termination
of
Company's responsibilities, duties and liabilities under this Agreement.
In
connection with such appointment and assumption, the Purchaser may make
such
arrangements for the compensation of such successor out of payments on
Mortgage
Loans as it and such successor shall agree. In the event that the Company's
duties, responsibilities and liabilities under this Agreement should be
terminated pursuant to the aforementioned sections, the Company shall discharge
such duties and responsibilities during the period from the date it acquires
knowledge of such termination until the effective date thereof with the
same
degree of diligence and prudence which it is obligated to exercise under
this
Agreement, and shall take no action whatsoever that might impair or prejudice
the rights or financial condition of its successor. The resignation or
removal
of the Company pursuant to the aforementioned sections shall not become
effective until a successor shall be appointed pursuant to this Section
12.01
and shall in no event relieve the Company of the representations and warranties
made pursuant to Sections 3.01 and 3.02 and the remedies available to the
Purchaser under Sections 3.03 and 8.01, it being understood and agreed
that the
provisions of such Sections 3.01, 3.02, 3.03 and 8.01 shall be applicable
to the
Company notwithstanding any such sale, assignment, resignation or termination
of
the Company, or the termination of this Agreement.
81
Any
successor appointed as provided herein shall execute, acknowledge and deliver
to
the Company and to the Purchaser an instrument accepting such appointment,
wherein the successor shall make the representations and warranties set
forth in
Section 3.01, except for subsection (h) with respect to the sale of the
Mortgage
Loans and subsections (i) and (k) thereof, whereupon such successor shall
become
fully vested with all the rights, powers, duties, responsibilities, obligations
and liabilities of the Company, with like effect as if originally named
as a
party to this Agreement. Any termination or resignation of the Company
or
termination of this Agreement pursuant to Section 8.04, 10.01, 11.01 or
11.02
shall not affect any claims that any Purchaser may have against the Company
arising out of the Company's actions or failure to act prior to any such
termination or resignation.
The
Company shall deliver promptly to the successor servicer the funds in the
Custodial Account and Escrow Account and all Retained Mortgage Files and
related
documents and statements held by it hereunder and the Company shall account
for
all funds and shall execute and deliver such instruments and do such other
things as may reasonably be required to more fully and definitively vest
in the
successor all such rights, powers, duties, responsibilities, obligations
and
liabilities of the Company.
Upon
a
successor's acceptance of appointment as such, the Company shall notify
by mail
the Purchaser of such appointment in accordance with the procedures set
forth in
Section 12.05.
Section
12.02 Amendment.
This
Agreement may be amended from time to time by written agreement signed
by the
Company and the Purchaser.
82
Section
12.03 Governing
Law.
This
Agreement shall be construed in accordance with the laws of the State of
New
York and the obligations, rights and remedies of the parties hereunder
shall be
determined in accordance with such laws.
Each
of
the Company and the Purchaser hereby knowingly, voluntarily and intentionally
waives any and all rights it may have to a trial by jury in respect or
any
litigation based on, or arising out of, under, or in connection with, this
Agreement, or any other documents and instruments executed in connection
herewith, or any course of conduct, course of dealing, statements (whether
oral
or written), or actions of the Company or the Purchaser. This provision
is a
material inducement for the Purchaser to enter into this Agreement.
Section
12.04 Duration
of Agreement.
This
Agreement shall continue in existence and effect until terminated as herein
provided. This Agreement shall continue notwithstanding transfers of the
Mortgage Loans by the Purchaser.
Section
12.05 Notices.
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if personally delivered at or mailed by
registered mail, postage prepaid, addressed as follows:
|
(i)
|
if
to the Company with respect to servicing
issues:
|
▇▇▇▇▇
Fargo Bank, N.A.
1
Home
▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
▇▇▇▇ ▇. ▇▇▇▇▇, MAC X2302-033
Fax:
515/▇▇▇-▇▇▇▇
(ii) if
to the
Company with respect to all other issues:
▇▇▇▇▇
Fargo Bank, N.A.
▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
Structured Finance Manager, MAC X3906-012
Fax:
301/▇▇▇-▇▇▇▇
83
In
each
instance, with a copy to:
▇▇▇▇▇
Fargo Bank, N.A.
1
Home
Campus
▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
General Counsel MAC X2401-06T
or
such
other address as may hereafter be furnished to the Purchaser in writing
by
the
Company;
(ii) if
to
Purchaser:
Greenwich
Capital Financial Products, Inc.
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
or
such
other address as may hereafter be furnished to the Company in writing
by
the
Purchaser;
Section
12.06 Severability
of Provisions.
If
any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall be held invalid for any reason whatsoever, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall
in no way
affect the validity or enforceability of the other provisions of this
Agreement.
Section
12.07 Relationship
of Parties.
Nothing
herein contained shall be deemed or construed to create a partnership or
joint
venture between the parties hereto and the services of the Company shall
be
rendered as an independent contractor and not as agent for the
Purchaser.
Section
12.08 Execution;
Successors and Assigns.
This
Agreement may be executed in one or more counterparts and by the different
parties hereto on separate counterparts, each of which, when so executed,
shall
be deemed to be an original; such counterparts, together, shall constitute
one
and the same agreement. Subject to Section 8.04, this Agreement shall inure
to
the benefit of and be binding upon the Company and the Purchaser and their
respective successors and assigns. The parties agree that this Agreement
and
signature pages thereof may be transmitted between them by facsimile and
that
faxed signatures may constitute original signatures and that a faxed signature
page containing the signature (faxed or original) is binding on the
parties.
Section
12.09 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
Company's expense in the event recordation is either necessary under applicable
law or requested by the Purchaser at its sole option.
84
Section
12.10 Assignment
by Purchaser.
The
Purchaser shall have the right, without the consent of the Company to assign,
in
whole or in part, its interest under this Agreement with respect to some
or all
of the Mortgage Loans, and designate any Person to exercise any rights
of the
Purchaser hereunder, by executing an Assignment, Assumption and Recognition
Agreement substantially in the form attached as Exhibit G, and the assignee
or
designee shall accede to the rights and obligations hereunder of the Purchaser
with respect to such Mortgage Loans. All references to the Purchaser in
this
Agreement shall be deemed to include its assignee or designee.
Section
12.11 Solicitation
of Mortgagor.
Neither
party shall, after the Closing Date, take any action to solicit the refinancing
of any Mortgage Loan. It is understood and agreed that neither (i) promotions
undertaken by either party or any affiliate or either party which are directed
to the general public at large, including, without limitation, mass mailings
based upon commercially acquired mailing lists, newspaper, radio, television
advertisements nor (ii) serving the refinancing needs of a Mortgagor who,
without solicitation, contacts either party in connection with the refinance
of
such Mortgage or Mortgage Loan, shall constitute solicitation under this
Section.
Section
12.12 Further
Agreements.
The
Purchaser and the Company each agree to execute and deliver to the other
such
additional documents, instruments or agreements as may be necessary or
appropriate to effectuate the purposes of this Agreement.
Section
12.13 Confidential
Information
The
Company shall keep confidential and shall not divulge to any party, without
the
Purchaser’s prior written consent, the price paid by the Purchaser for the
Mortgage Loans, except to the extent that it is reasonable and necessary
for the
Company to do so in working with legal counsel, auditors, taxing authorities
or
other governmental agencies.
Section
12.14 Third
Party Beneficiary.
For
purposes of this Agreement, any Master Servicer shall be considered a third
party beneficiary to this Agreement, entitled to all the rights and benefits
herein as if it were a direct party to this Agreement.
[Intentionally
Blank - Next Page Signature Page]
85
IN
WITNESS WHEREOF, the Company and the Purchaser 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: | ||
|
▇▇▇▇▇
FARGO BANK, N.A.
Company
|
||
| |
|
|
| By: | ||
| Name: | ||
| Title: | ||
86
|
STATE
OF
|
)
|
|
|
)
|
ss:
|
|
|
COUNTY
OF _______
|
)
|
On
the
_____ day of _______________, 20___ before me, a Notary Public in and for
said
State, personally appeared ____________________________,
known
to me to be ____________________________
of ▇▇▇▇▇
Fargo Bank, N.A., the national banking association that executed the within
instrument and also known to me to be the person who executed it on behalf
of
said bank, and acknowledged to me that such bank executed the within
instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand affixed my office seal the
day and
year in this certificate first above written.
|
Notary Public |
||
|
My
Commission
expires_______________________________________
|
||
87
|
STATE
OF
|
)
|
|
|
)
|
ss:
|
|
|
COUNTY
OF
|
)
|
On
the
_____ day of _______________, 20___ before me, a Notary Public in and for
said
State, personally appeared _____________________________________, known
to me to
be the ______________________________ of ______________________________,
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_______________________________________
|
||
88
EXHIBIT
A
MORTGAGE
LOAN SCHEDULE
(WFHM
2006-W109)
EXHIBIT
B
CUSTODIAL
AGREEMENT
EXHIBIT
C
CONTENTS
OF EACH CUSTODIAL MORTGAGE FILE, RETAINED
MORTGAGE
FILE AND SERVICING FILE
With
respect to each Mortgage Loan, the Custodial Mortgage File and Retained
Mortgage
File shall include each of the following items, which shall be available
for
inspection by the Purchaser and any prospective Purchaser, and which shall
be
either retained by the Company in the Retained Mortgage File or Servicing
File
or delivered to the Custodian pursuant to Sections 2.01 and 2.03 of the
Seller's
Warranties and Servicing Agreement to which this Exhibit C is attached
(the
"Agreement"):
With
respect to each Custodial Mortgage File:
| 1. |
(a) The
original Mortgage Note bearing all intervening endorsements,
endorsed "Pay
to the order of _______
without recourse" and signed in the name of the Company by an
authorized
officer (in the event that the Mortgage Loan was acquired by
the Company
in a merger, the signature must be in the following form: "[Company],
successor by merger to [name of predecessor]"; and in the event
that the
Mortgage Loan was acquired or originated by the Company while
doing
business under another name, the signature must be in the following
form:
"[Company], formerly known as [previous name]");
or
|
(b) With
respect to no more than 1% of the unpaid principal balance of the Mortgage
Loans
as of the related Cut-off Date, a certified copy of the Mortgage Note (endorsed
as provided above) together with a lost note affidavit, providing
indemnification to the holder thereof for any losses incurred due to the
fact
that the original Mortgage Note is missing.
|
2.
|
The
originals or certified true copies of any document sent for recordation
of
all assumption, modification, consolidation or extension agreements,
with
evidence of recording thereon.
|
|
3.
|
Except
in the case of MERS Mortgage Loans, the original Assignment of
Mortgage
for each Mortgage Loan, in form and substance acceptable for
recording
(except for the insertion of the name of the assignee and recording
information). The Assignment of Mortgage must be duly recorded
only if
recordation is either necessary under applicable law or commonly
required
by private institutional mortgage investors in the area where
the
Mortgaged Property is located or on direction of the Purchaser.
If the
Assignment of Mortgage is to be recorded, the Mortgage shall
be assigned
to the Purchaser. If the Assignment of Mortgage is not to be
recorded, the
Assignment of Mortgage shall be delivered in blank. If the Mortgage
Loan
was acquired by the Company in a merger, the Assignment of Mortgage
must
be made by "[Company], successor by merger to [name of predecessor]."
If
the Mortgage Loan was acquired or originated by the Company while
doing
business under another name, the Assignment of Mortgage must
be by
"[Company], formerly know as [previous name]."
|
|
4.
|
The
original of any guarantee executed in connection with the Mortgage
Note
(if any).
|
|
5.
|
Original
or certified copy of power of attorney, if
applicable.
|
With
respect to each Retained Mortgage File:
|
6.
|
For
any Mortgage Loan not recorded in the name of MERS, the original
Mortgage,
with evidence of recording thereon or a certified true and correct
copy of
the Mortgage sent for recordation. If in connection with any
Mortgage
Loan, the Company cannot deliver or cause to be delivered the
original
Mortgage with evidence of recording thereon on or prior to the
Closing
Date because of a delay caused by the public recording office
where such
Mortgage has been delivered for recordation or because such Mortgage
has
been lost or because such public recording office retains the
original
recorded Mortgage, the Company shall deliver or cause to be delivered
to
the Custodian, a photocopy of such Mortgage, together with (i)
in the case
of a delay caused by the public recording office, an Officer's
Certificate
of the Company stating that such Mortgage has been dispatched
to the
appropriate public recording office for recordation and that
the original
recorded Mortgage or a copy of such Mortgage certified by such
public
recording office to be a true and complete copy of the original
recorded
Mortgage will be promptly delivered to the Custodian upon receipt
thereof
by the Company; or (ii) in the case of a Mortgage where a public
recording
office retains the original recorded Mortgage or in the case
where a
Mortgage is lost after recordation in a public recording office,
a copy of
such Mortgage certified by such public recording office or by
the title
insurance company that issued the title policy to be a true and
complete
copy of the original recorded
Mortgage.
|
For
each
MERS Mortgage Loan, the original Mortgage, noting the presence of the MIN
for
that Mortgage Loan and either language indicating that the Mortgage Loan
was
originated in the name of MERS, or if the Mortgage Loan was not originated
in
the name of MERS, the original Mortgage and the assignment to MERS, with
evidence of recording thereon. Further, with respect to MERS Mortgage Loans,
(a)
the Mortgage names MERS as the Mortgagee and (b) the requirements set forth
in
the Electronic Tracking Agreement have been satisfied, with a conformed
recorded
copy to follow as soon as the same is received by the Company.
|
7.
|
Except
in the case of MERS Mortgage Loans, originals or certified true
copies of
documents sent for recordation of all intervening assignments
of the
Mortgage with evidence of recording thereon, or if any such intervening
assignment has not been returned from the applicable recording
office or
has been lost or if such public recording office retains the
original
recorded assignments of mortgage, the Company shall deliver or
cause to be
delivered to the Custodian, a photocopy of such intervening assignment,
together with (i) in the case of a delay caused by the public
recording
office, an Officer's Certificate of the Company stating that
such
intervening assignment of mortgage has been dispatched to the
appropriate
public recording office for recordation and that such original
recorded
intervening assignment of mortgage or a copy of such intervening
assignment of mortgage certified by the appropriate public recording
office or by the title insurance company that issued the title
policy to
be a true and complete copy of the original recorded intervening
assignment of mortgage will be promptly delivered to the Custodian
upon
receipt thereof by the Company; or (ii) in the case of an intervening
assignment where a public recording office retains the original
recorded
intervening assignment or in the case where an intervening assignment
is
lost after recordation in a public recording office, a copy of
such
intervening assignment certified by such public recording office
to be a
true and complete copy of the original recorded intervening
assignment.
|
2
| 8. |
The
original mortgagee policy of title insurance or evidence of
title.
|
|
9.
|
Any
security agreement, chattel mortgage or equivalent executed in
connection
with the Mortgage.
|
|
10.
|
For
each Cooperative Loan, the original or a seller certified true
copy of the
following:
|
The
original Pledge Agreement entered into by the Mortgagor with respect to
such
Cooperative Loan;
UCC-3
assignment in blank (or equivalent instrument), sufficient under the laws
of the
jurisdiction where the related Cooperative Apartment is located to reflect
of
record the sale and assignment of the Cooperative Loan to the
Purchaser;
Original
assignment of Pledge Agreement in blank showing a complete chain of assignment
from the originator of the related Cooperative Loan to the Company;
Original
Form UCC-1 and any continuation statements with evidence of filing thereon
with
respect to such Cooperative Loan;
Cooperative
Shares with a Stock Certificate in blank attached;
Original
Proprietary Lease;
Original
Assignment of Proprietary Lease, in blank, and all intervening assignments
thereof;
3
Original
recognition agreement of the interests of the mortgagee with respect to
the
Cooperative Loan by the Cooperative, the stock of which was pledged by
the
related Mortgagor to the originator of such Cooperative Loan; and
Originals
of any assumption, consolidation or modification agreements relating to
any of
the items specified above.
With
respect to each Mortgage Loan, the Servicing File shall include each of
the
following items to the extent in the possession of the Company or in the
possession of the Company’s agent(s):
|
11.
|
The
original hazard insurance policy and, if required by law, flood
insurance
policy, in accordance with Section 4.10 of the
Agreement.
|
|
12.
|
Residential
loan application.
|
|
13.
|
Mortgage
Loan closing statement.
|
|
14.
|
Verification
of employment and income, unless originated under the Company's
Limited
Documentation program, ▇▇▇▇▇▇ Mae Timesaver
Plus.
|
|
15.
|
Verification
of acceptable evidence of source and amount of down
payment.
|
|
16.
|
Credit
report on the Mortgagor.
|
|
17.
|
Residential
appraisal report.
|
|
18.
|
Photograph
of the Mortgaged Property.
|
|
19.
|
Survey
of the Mortgage property, if required by the title company or
applicable
law.
|
|
20.
|
Copy
of each instrument necessary to complete identification of any
exception
set forth in the exception schedule in the title policy, i.e.
map or plat,
restrictions, easements, sewer agreements, home association declarations,
etc.
|
|
21.
|
All
required disclosure statements.
|
|
22.
|
If
available, termite report, structural engineer's report, water
potability
and septic certification.
|
|
23.
|
Sales
contract, if applicable.
|
|
24.
|
Evidence
of payment of taxes and insurance premiums, insurance claim files,
correspondence, current and historical computerized data files,
and all
other processing, underwriting and closing papers and records
which are
customarily contained in a mortgage loan file and which are required
to
document the Mortgage Loan or to service the Mortgage
Loan.
|
4
|
25.
|
Amortization
schedule, if available.
|
|
26.
|
Payment
history for any Mortgage Loan that has been closed for more than
90
days.
|
In
the
event an Officer's Certificate of the Company is delivered to the Custodian
because of a delay caused by the public recording office in returning any
recorded document, the Company shall deliver to the Custodian, within 240
days
of the Closing Date, an Officer's Certificate which shall (i) identify
the
recorded document, (ii) state that the recorded document has not been delivered
to the Custodian due solely to a delay caused by the public recording office,
(iii) state the amount of time generally required by the applicable recording
office to record and return a document submitted for recordation, and (iv)
specify the date the applicable recorded document will be delivered to
the
Custodian. The Company shall be required to deliver to the Custodian the
applicable recorded document by the date specified in (iv) above. An extension
of the date specified in (iv) above may be requested from the Purchaser,
which
consent shall not be unreasonably withheld.
5
EXHIBIT
D
DATA
FILE ELEMENTS
|
(1)
|
the
street address of the Mortgaged Property including the city,
state, county
and zip code;
|
|
(2)
|
a
code indicating whether the Mortgaged Property is a single family
residence, a 2-4 family dwelling, a PUD, a cooperative, a townhouse,
manufactured housing or a unit in a condominium
project;
|
|
(3)
|
the
Mortgage Interest Rate as of the Cut-off
Date;
|
|
(4)
|
the
current Monthly Payment;
|
|
(5)
|
original
loan term, number of months;
|
|
(6)
|
the
stated maturity date;
|
|
(7)
|
the
Stated Principal Balance of the Mortgage Loan as of the close
of business
on the Cut-off Date, after deduction of payments of principal
due on or
before the Cut-off Date;
|
|
(8)
|
the
Loan-to-Value Ratio;
|
|
(9)
|
a
code indicating whether the Mortgage Loan is an Interest Only
Mortgage
Loan and the term of such Interest Only Mortgage
Loan;
|
|
(10)
|
a
code indicating whether the Mortgage Loan is a temporary buydown
(Y or
N);
|
|
(11)
|
the
Servicing Fee Rate;
|
|
(12)
|
a
code indicating whether the Mortgage Loan is covered by lender-paid
mortgage insurance (Y or N);
|
|
(13)
|
a
code indicating whether the Mortgage Loan is a Time$aver® Mortgage Loan (Y
or N);
|
|
(14)
|
the
Mortgagor's first and last name;
|
|
(15)
|
a
code indicating whether the Mortgaged Property is owner-occupied,
a second
home or an investment property;
|
|
(16)
|
the
remaining months to maturity from the Cut-off Date, based on
the original
amortization schedule;
|
6
|
(17)
|
the
date on which the first Monthly Payment was due on the Mortgage
Loan;
|
|
(18)
|
the
last Due Date on which a Monthly Payment was actually applied
to the
actual principal balance;
|
|
(19)
|
the
original principal amount of the Mortgage Loan;
|
|
(20)
|
a
code indicating the purpose of the loan (i.e., purchase, financing,
rate/term refinancing, cash-out refinancing);
|
|
(21)
|
the
Mortgage Interest Rate at origination;
|
|
(22)
|
a
code indicating the documentation style (i.e., full (providing
two years
employment verification - 2 years W-2’s and current pay stub or 2 years
1040’s for self employed borrowers), alternative or
reduced);
|
|
(23)
|
a
code indicating if the Mortgage Loan is subject to a PMI
Policy;
|
|
(24)
|
the
Appraised Value of the Mortgage
Property;
|
|
(25)
|
the
sale price of the Mortgaged Property, if
applicable;
|
|
(26)
|
the
Mortgagor’s FICO Score;
|
|
(27)
|
term
of Prepayment Penalty in years;
|
|
(28)
|
a
code indicating the product type;
|
|
(29)
|
a
code indicating the credit grade of the Mortgage
Loan;
|
|
(30)
|
the
unpaid balance of the Mortgage Loan as of the close of business
on the
Cut-off Date, after deduction of all payments of
principal;
|
|
(31)
|
the
Mortgage Note date of the Mortgage
Loan;
|
|
(32)
|
the
mortgage insurance certificate number and percentage of coverage,
if
applicable;
|
|
(33)
|
the
Mortgagor’s date of birth;
|
|
(34)
|
if
the Mortgage Loan is a MERS Mortgage Loan, the MIN for each MERS
Mortgage
Loan;
|
|
(35)
|
employer
name;
|
7
|
(36)
|
subsidy
program code;
|
|
(37)
|
servicer
name;
|
|
(38)
|
the
combined Loan-to-Value Ratio;
|
|
(39)
|
the
total Loan-to-Value Ratio;
|
|
(40)
|
whether
the Mortgage Loan is convertible (Y or
N);
|
|
(41)
|
a
code indicating whether the Mortgage Loan is a relocation loan
(Y or
N);
|
|
(42)
|
a
code indicating whether the Mortgage Loan is a leasehold loan
(Y or
N);
|
|
(43)
|
a
code indicating whether the Mortgage Loan is an Alt A loan (Y
or
N);
|
|
(44)
|
a
code indicating whether the Mortgage Loan is a no ratio loan
(Y or N);
|
|
(45)
|
a
code indicating whether the Mortgage Loan is a pledged asset
mortgage loan
(Y or N);
|
|
(46)
|
effective
LTV percentage for pledged asset mortgage
loan;
|
|
(47)
|
citizenship
type code;
|
|
(48)
|
a
code indicating whether the Mortgage Loan is a conforming or
non-conforming loan, based on the original loan
balance;
|
|
(49)
|
the
name of the client for which the Mortgage Loan was
originated;
|
|
(50)
|
the
program code;
|
|
(51)
|
the
loan sub doc code;
|
|
(52)
|
a
code indicating whether the Mortgage Loan is secured by a first
or second
lien;
|
|
(53)
|
a
code indicating amortization type (1 or
2);
|
|
(54)
|
interest-only
note payment;
|
|
(55)
|
first
full amortization payment date;
|
|
(56)
|
interest-only
term, number of months;
|
8
|
(57)
|
remaining
interest-only term for Interest-Only Mortgage Loans, number of
months;
|
|
(58)
|
a
code indicating whether the Mortgage Loan is a 2nd
lien (Y or N);
|
|
(59)
|
a
code indicating borrower verification of assets or lender verification
of
assets (L or B);
|
|
(60)
|
combined
current loan balance;
|
The
Company shall provide the following
For
the Home Mortgage Disclosure Act (HMDA):
|
(61)
|
the
Mortgagor’s and co-Mortgagor’s (if applicable)
ethnicity;
|
|
(62)
|
the
Mortgagor’s and co-Mortgagor’s (if applicable)
race;
|
|
(63)
|
lien
status;
|
|
(64)
|
for
cash-out refinance loans, the cash
purpose;
|
|
(65)
|
the
Mortgagor’s and co-Mortgagor’s (if applicable)
gender;
|
|
(66)
|
the
Mortgagor’s and co-Mortgagor’s (if applicable) social security
numbers;
|
|
(67)
|
the
number of units for the property;
|
|
(68)
|
the
year in which the property was
built;
|
|
(69)
|
the
qualifying monthly income of the
Mortgagor;
|
|
(70)
|
the
number of bedrooms contained in the
property;
|
|
(71)
|
a
code indicating first time buyer (Y or
N);
|
|
(72)
|
the
total rental income, if any;
|
The
Seller shall provide the following
for
the Adjustable Rate Mortgage Loans (if applicable):
|
(73)
|
the
maximum Mortgage Interest Rate under the terms of the Mortgage
Note;
|
|
(74)
|
the
Periodic Interest Rate Cap;
|
|
(75)
|
the
Index;
|
9
|
(76)
|
the
next Adjustment Date;
|
|
(77)
|
the
Gross Margin; and
|
| (78) |
the
lifetime interest rate cap.
|
10
EXHIBIT
E
SERVICING
CRITERIA TO BE ADDRESSED
IN
ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by [the Company][Name of Subservicer]
shall address, as a minimum, the criteria identified below as “Applicable
Servicing Criteria”
|
Reg
AB Reference
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
Inapplicable
Servicing Criteria
|
| General Servicing Considerations | |||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or
other triggers
and events of default in accordance with the transaction
agreements.
|
X
|
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third
party’s
performance and compliance with such servicing activities.
|
X
|
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
X
|
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect
on the party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance
with the
terms of the transaction agreements.
|
X
|
|
| Cash Collection and Administration | |||
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial
bank
accounts and related bank clearing accounts no more than two
business days
following receipt, or such other number of days specified in
the
transaction agreements.
|
X
|
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or
distributions,
and any interest or other fees charged for such advances, are
made,
reviewed and approved as specified in the transaction agreements.
|
X
|
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve
accounts or
accounts established as a form of overcollateralization, are
separately
maintained (e.g., with respect to commingling of cash) as set
forth in the
transaction agreements.
|
X
|
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For
purposes of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities
Exchange Act.
|
X
|
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized access.
|
X
|
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities
related
bank accounts, including custodial accounts and related bank
clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who
prepared the
reconciliation; and (D) contain explanations for reconciling
items. These
reconciling items are resolved within 90 calendar days of their
original
identification, or such other number of days specified in the
transaction
agreements.
|
X
|
|
| Investor Remittances and Reporting | |||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission,
are
maintained in accordance with the transaction agreements and
applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance
with the
terms specified in the transaction agreements; (C) are filed
with the
Commission as required by its rules and regulations; and (D)
agree with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the Servicer.
|
X
|
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with
timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the
Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank statements.
|
X
|
|
|
Pool
Asset Administration
|
|||
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the
transaction
agreements or related mortgage loan documents.
|
X
|
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the
transaction
agreements
|
X
|
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements
in the
transaction agreements.
|
X
|
|
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance
with the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements,
and
allocated to principal, interest or other items (e.g., escrow)
in
accordance with the related mortgage loan documents.
|
X
|
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal balance.
|
X
|
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's mortgage
loans (e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions,
as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
X
|
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period
a mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including,
for example,
phone calls, letters and payment rescheduling plans in cases
where
delinquency is deemed temporary (e.g., illness or unemployment).
|
X
|
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with
variable
rates are computed based on the related mortgage loan documents.
|
X
|
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period
specified in
the transaction agreements; (B) interest on such funds is paid,
or
credited, to obligors in accordance with applicable mortgage
loan
documents and state laws; and (C) such funds are returned to
the obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction agreements.
|
X
|
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that
such support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
X
|
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the Servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
X
|
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of
days
specified in the transaction agreements.
|
X
|
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set
forth in
the transaction agreements.
|
X
|
EXHIBIT
F
SARBANES
CERTIFICATION
|
Re:
|
The
[ ] agreement dated as of [ ], 200[ ] (the “Agreement”),
among [IDENTIFY PARTIES]
|
I,
________________________________, the _______________________ of [Name
of
Servicer] (the “Servicer”), certify to [the Purchaser], [the Depositor], and the
[Master Servicer] [Securities Administrator] [Trustee], and their officers,
with
the knowledge and intent that they will rely upon this certification,
that:
(1) I
have
reviewed the servicer compliance statement of the Servicer provided in
accordance with Item 1123 of Regulation AB (the “Compliance Statement”), the
report on assessment of the Servicer’s compliance with the servicing criteria
set forth in Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided
in accordance with Rules 13a-18 and 15d-18 under Securities Exchange Act
of
1934, as amended (the “Exchange Act”) and Item 1122 of Regulation AB (the
“Servicing Assessment”), the registered public accounting firm’s attestation
report provided in accordance with Rules 13a-18 and 15d-18 under the Exchange
Act and Section 1122(b) of Regulation AB (the “Attestation Report”), and all
servicing reports, officer’s certificates and other information relating to the
servicing of the Mortgage Loans by the Servicer during 200[ ] that were
delivered by the Servicer to the [Depositor] [Master Servicer] [Securities
Administrator] [Trustee] pursuant to the Agreement (collectively, the “Servicer
Servicing Information”);
(2) Based
on
my knowledge, the Servicer Servicing Information, taken as a whole, does
not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances
under
which such statements were made, not misleading with respect to the period
of
time covered by the Servicer Servicing Information;
(3) Based
on
my knowledge, all of the Servicer Servicing Information required to be
provided
by the Servicer under the Agreement has been provided to the [Depositor]
[Master
Servicer] [Securities Administrator] [Trustee];
(4) I
am
responsible for reviewing the activities performed by the Servicer under
the
Agreement, and based on my knowledge and the compliance review conducted
in
preparing the Compliance Statement and except as disclosed in the Compliance
Statement, the Servicing Assessment or the Attestation Report, the Servicer
has
fulfilled its obligations under the Agreement in all material respects;
and
(5) The
Compliance Statement required to be delivered by the Servicer pursuant
to the
Agreement, and the Servicing Assessment and Attestation Report required
to be
provided by the Servicer and by any Subservicer or Subcontractor pursuant
to the
Agreement have been provided to the [Depositor] [Master Servicer]. Any
material
instances of noncompliance described in such reports have been disclosed
to the
[Depositor] [Master Servicer]. Any material instance of noncompliance with
the
Servicing Criteria has been disclosed in such reports.
|
Date:
|
||
| |
|
|
| By: | ||
| Name: | ||
| Title: | ||
EXHIBIT
G
ASSIGNMENT,
ASSUMPTION AND RECOGNITION AGREEMENT
____________,
20__
THIS
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT, dated ____________, 200__,
(“Agreement”)
among
Greenwich Capital Financial Products, Inc. (“Assignor”),
________________________ (“Assignee”)
and
▇▇▇▇▇ Fargo Bank, N.A. (the “Company”):
For
and
in consideration of the sum of TEN DOLLARS ($10.00) and other valuable
consideration the receipt and sufficiency of which hereby are acknowledged,
and
of the mutual covenants herein contained, the parties hereto hereby agree
as
follows:
Assignment
and Conveyance
1. The
Assignor hereby conveys, sells, grants, transfers and assigns to the Assignee
(x) all of the right, title and interest of the Assignor, as purchaser,
in, to
and under (a) those certain Mortgage Loans listed on the schedule (the
“Mortgage
Loan Schedule”)
attached hereto as Exhibit A (the “Mortgage
Loans”)
and
(b) except as described below, that certain Seller’s Warranties and Servicing
Agreement dated as of __________ 1, 2006, as amended (the “Servicing
Agreement”),
between the Assignor, as purchaser (the “Purchaser”),
and
the Company, as seller and servicer, solely insofar as the Servicing Agreement
relates to the Mortgage Loans and (y) other than as provided below with
respect
to the enforcement of representations and warranties, none of the obligations
of
the Assignor under the Servicing Agreement.
The
Assignor specifically reserves and does not assign to the Assignee hereunder
any
and all right, title and interest in, to and under any obligations of the
Assignor with respect to any mortgage loans subject to the Servicing Agreement
which are not the Mortgage Loans set forth on the Mortgage Loan Schedule
and are
not the subject of this Agreement.
Recognition
of the Company
2. [For
Securitization Transactions include this sentence: From and after the date
hereof, the Company shall and does hereby recognize that the Assignee will
transfer the Mortgage Loans and assign its rights under the Servicing Agreement
(solely to the extent set forth herein) and this Agreement to
______________________________ (the “Trust”)
created pursuant to a Pooling and Servicing Agreement, dated as of
_______________, 200__ (the “Pooling
Agreement”),
among
the Assignee, the Assignor, ____________________, as trustee (including
its
successors in interest and any successor trustees under the Pooling Agreement,
the “Trustee”),
_________________________, as master servicer (including its successors
in
interest and any successor servicer under the Pooling Agreement, the “Master
Servicer”).]
The
Company hereby acknowledges and agrees that from and after the date hereof
(i) the [Trust][Assignee] will be the owner of the Mortgage Loans,
(ii) the Company shall look solely to the [Trust][Assignee] for performance
of any obligations of the Assignor insofar as they relate to the enforcement
of
the representations, warranties and covenants with respect to the Mortgage
Loans, (iii) the [Assignee][Trust (including the Trustee and the Master
Servicer acting on the Trust’s behalf)] shall have all the rights and remedies
available to the Assignor, insofar as they relate to the Mortgage Loans,
under
the Servicing Agreement, including, without limitation, the enforcement
of the
document delivery requirements and remedies with respect to breaches of
representations and warranties set forth in the Servicing Agreement, and
shall
be entitled to enforce all of the obligations of the Company thereunder
insofar
as they relate to the Mortgage Loans, and (iv) all references to the
Purchaser (insofar as they relate to the rights, title and interest and,
with
respect to obligations of the Purchaser, only insofar as they relate to
the
enforcement of the representations, warranties and covenants of the Company)
or
the Custodian under the Servicing Agreement insofar as they relate to the
Mortgage Loans, shall be deemed to refer to the [Assignee] [Trust (including
the
Trustee and the Master Servicer acting on the Trust’s behalf)]. Neither the
Company nor the Assignor shall amend or agree to amend, modify, waiver,
or
otherwise alter any of the terms or provisions of the Servicing Agreement
which
amendment, modification, waiver or other alteration would in any way affect
the
Mortgage Loans or the Company’s performance under the Servicing Agreement with
respect to the Mortgage Loans without the prior written consent of the
[Assignee][Trustee.]
Representations
and Warranties of the Company
3. The
Company warrants and represents to the Assignor, the Assignee [and the
Trust] as
of the date hereof that:
(a) The
Company is duly organized, validly existing and in good standing under
the laws
of the jurisdiction of its incorporation;
(b) The
Company has full power and authority to execute, deliver and perform its
obligations under this Agreement and has full power and authority to perform
its
obligations under the Servicing Agreement. The execution by the Company
of this
Agreement is in the ordinary course of the Company’s business and will not
conflict with, or result in a breach of, any of the terms, conditions or
provisions of the Company’s charter or bylaws or any legal restriction, or any
material agreement or instrument to which the Company is now a party or
by which
it is bound, or result in the violation of any law, rule, regulation, order,
judgment or decree to which the Company or its property is subject. The
execution, delivery and performance by the Company of this Agreement has
been
duly authorized by all necessary corporate action on part of the Company.
This
Agreement has been duly executed and delivered by the Company, and, upon
the due
authorization, execution and delivery by the Assignor and the Assignee,
will
constitute the valid and legally binding obligation of the Company, enforceable
against the Company in accordance with its terms except as enforceability
may be
limited by bankruptcy, reorganization, insolvency, moratorium or other
similar
laws now or hereafter in effect relating to creditors’ rights generally, and by
general principles of equity regardless of whether enforceability is considered
in a proceeding in equity or at law;
-2-
(c) No
consent, approval, order or authorization of, or declaration, filing or
registration with, any governmental entity is required to be obtained or
made by
the Company in connection with the execution, delivery or performance by
the
Company of this Agreement; and
(d) There
is
no action, suit, proceeding or investigation pending or, to the Company’s
knowledge, threatened against the Company, before any court, administrative
agency or other tribunal, which would draw into question the validity of
this
Agreement or the Servicing Agreement, or which, either in any one instance
or in
the aggregate, would result in any material adverse change in the ability
of the
Company to perform its obligations under this Agreement or the Servicing
Agreement, and the Company is solvent.
4. Pursuant
to Article IX of the Servicing Agreement, the Company hereby represents
and
warrants, for the benefit of the Assignor, the Assignee [and the Trust,]
that
the representations and warranties set forth in Section 3.02 of the Servicing
Agreement were true and correct as of the Closing Date set forth in the
Servicing Agreement, and that the representations and warranties set forth
in
Section 3.01 of the Servicing Agreement, are true and correct as of the
date
hereof as if such representations and warranties were made on the date
hereof.
[Additional
Representations and Warranties Necessary for Securitization]
Remedies
for Breach of Representations and Warranties
5. The
Company hereby acknowledges and agrees that the remedies available to the
Assignor, the Assignee [and the Trust (including the Trustee and the Master
Servicer acting on the Trust’s behalf)] in connection with any breach of the
representations and warranties made by the Company set forth in Sections
3 and 4
hereof shall be as set forth in Subsection 3.03 of the Servicing Agreement
as if
they were set forth herein (including without limitation the repurchase
and
indemnity obligations set forth therein).
Miscellaneous
6. This
Agreement shall be construed in accordance with the laws of the State of
New
York, without regard to conflicts of law principles, and the obligations,
rights
and remedies of the parties hereunder shall be determined in accordance
with
such laws.
-3-
7. No
term
or provision of this Agreement may be waived or modified unless such waiver
or
modification is in writing and signed by the party against whom such waiver
or
modification is sought to be enforced [, with the prior written consent
of the
Trustee].
8. This
Agreement shall inure to the benefit of [(i)] the successors and assigns
of the
parties hereto [and (ii) the Trust (including the Trustee and the Master
Servicer acting on the Trust’s behalf)]. Any entity into which Assignor,
Assignee or Company may be merged or consolidated shall, without the requirement
for any further writing, be deemed Assignor, Assignee or Company, respectively,
hereunder.
9. Each
of
this Agreement and the Servicing Agreement shall survive the conveyance
of the
Mortgage Loans and the assignment of the Servicing Agreement (to the extent
assigned hereunder) by Assignor to Assignee [and by Assignee to the Trust]
and
nothing contained herein shall supersede or amend the terms of the Servicing
Agreement.
10. This
Agreement may be executed simultaneously in any number of counterparts.
Each
counterpart shall be deemed to be an original and all such counterparts
shall
constitute one and the same instrument.
11. In
the
event that any provision of this Agreement conflicts with any provision
of the
Servicing Agreement with respect to the Mortgage Loans, the terms of this
Agreement shall control.
12. Capitalized
terms used in this Agreement (including the exhibits hereto) but not defined
in
this Agreement shall have the meanings given to such terms in the Servicing
Agreement.
[SIGNATURE
PAGE FOLLOWS]
-4-
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their
duly authorized officers as of the date first above written.
|
GREENWICH
CAPITAL FINANCIAL PRODUCTS, INC.
|
||
| |
|
|
| By: | ||
| Name: | ||
| Title: | ||
|
|
||
| |
|
|
| By: | ||
| Name: | ||
| Its: | ||
|
|
||
| |
|
|
| By: | ||
| Name: | ||
| Its: | ||
EXHIBIT
H
INDEMNIFICATION
AGREEMENT
Indemnification
Agreement dated as of _________ __, 200__ (the “Agreement”) between
________________ (“Company”) and _____________________ (the
“Depositor”).
Reference
is made to the issuance of ____________________, Series ________, Asset-Backed
Certificates (the “Certificates”), pursuant to a Pooling and Servicing
Agreement, dated as of _______________ (the “Pooling and Servicing Agreement”),
among the Depositor as depositor, _________________ as master servicer
and
_____________________ as trustee (the “Trustee”). The Depositor will sell
certain of the Certificates to _______________ (the “Underwriter”) for offer and
sale pursuant to the terms of an Underwriting Agreement, dated ______________,
____ (the “Underwriting Agreement”), between the Depositor and the Underwriter.
Capitalized terms not otherwise defined herein shall have the meanings
set forth
in the Pooling and Servicing Agreement.
Reference
is also made to the information provided by the Company contained in the
Prospectus Supplement, under the caption, “The Originators—______________” and
“The Servicer—“__________” (collectively, the “Company Information”).
1. (a)
Company
agrees to indemnify and hold harmless the Depositor and each of its directors
and officers and affiliates and each person, if any, who controls the Depositor
within the meaning of Section 15 of the Securities Act or Section 20 of
the
Exchange Act (the “Indemnified Party”) and not any assignee thereof, against any
and all actual losses, claims, expenses, damages or liabilities to which
the
Indemnified Party may become subject, under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) (i) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Company Information
or
(ii) arise out of, or are based upon, the omission or alleged omission
to state
therein any material fact required to be stated therein or necessary to
make the
statements made therein, in light of the circumstances under which such
statements were made, not misleading (in each case, regardless of whether
a
final judgment has been entered by a finder of fact); provided, by way
of
clarification, that clause (ii) of this paragraph shall be construed solely
by
reference to the Company Information and not to any other information
communicated in connection with the Certificates, without regard to whether
the
Company Information or any portion thereof is presented together with or
separately from such other information. The Company shall reimburse the
Depositor for any such reasonable legal or other expenses reasonably incurred
by
the Depositor or any such director, officer or controlling person in connection
with investigating or defending any such loss, claim, damage, liability
or
action. This indemnity agreement will be in addition to any liability which
Company may otherwise have.
(b) The
Depositor agrees to indemnify and hold harmless the Company and each of
its
directors and officers and affiliates and each person, if any, who controls
the
Company within the meaning of Section 15 of the Securities Act or Section
20 of
the Exchange Act and not any assignee thereof, against any and all actual
losses, claims, expenses, damages or liabilities to which the Company or
any
such director, officer or controlling person may become subject, under
the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any
untrue statement or alleged untrue statement of any material fact contained
in
the Prospectus Supplement other than with respect to (i) the Company
Information, or omission to state therein a material fact required to be
stated
therein or necessary to make the statements made therein not misleading
(in each
case, regardless of whether a final judgment has been entered by a finder
of
fact) or (ii) information in the Prospectus Supplement derived from data
concerning the characteristics of the Mortgage Loans, which data was provided
to
the Depositor by the Company; and will reimburse such reasonable legal
or other
expenses actually incurred by the Company or any such director, officer
or
controlling person in connection with investigating or defending any such
loss,
claim, damage, liability or action. This indemnity agreement will be in
addition
to any liability which the Depositor may otherwise have.
(c)
Promptly after receipt by an indemnified party under this Section 1 of
notice of
the commencement of any action described therein, such indemnified party
will,
if a claim in respect thereof is to be made against the indemnifying party
under
this Section 1, notify the indemnifying party of the commencement thereof,
but
the omission so to notify the indemnifying party will not relieve the
indemnifying party from any liability that it may have to the indemnified
party
(a) under this Agreement except to the extent that the omission to notify
the
indemnifying party with respect to this Agreement materially adversely
affects
the indemnifying party’s ability to perform under this Agreement or (b)
otherwise than under this Agreement. In case any such action is brought
against
the indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and, to the extent that it may wish to do so, jointly with any
other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to the indemnified party (who shall not,
except
with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to the indemnified
party
under this Section 1, the indemnifying party shall not be liable for any
legal
or other expenses subsequently incurred by the indemnified party in connection
with the defense thereof other than reasonable costs of
investigation.
The
indemnified party shall have the right to employ separate counsel in any
such
action and to participate in the defense thereof, but the fees and expenses
of
such counsel shall be at the expense of the indemnified party unless: (i)
the
employment thereof has been specifically authorized by the indemnifying
party in
writing; (ii) a conflict or potential conflict exists (based on advice
of
counsel to the indemnified party) between the indemnified party and the
indemnifying party (in which case the indemnifying party will not have
the right
to direct the defense of such action on behalf of the indemnified party)
or
(iii) the indemnifying party has failed to assume the defense of such action
and
employ counsel reasonably satisfactory to the indemnified party, in which
case,
if the indemnified party notifies the indemnifying party in writing that
it
elects to employ separate counsel at the expense of the indemnifying party,
the
indemnifying party shall not have the right to assume the defense of such
action
on behalf of the indemnified party, it being understood, however, the
indemnifying party shall not, in connection with any one such action or
separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys
at any
time for the indemnified party, which firm shall be designated in writing
by the
Company, if the indemnified parties under this Section 1 consist of the
Company
or any of the Company’s directors, officers or controlling persons or by the
Depositor, if the indemnified parties under this Section 1 consist of the
Depositor or any of the Depositor=s directors, officers or controlling
persons.
2
The
indemnified party, as a condition of the indemnity agreements contained
in
Section 1(a), Section 1(b) and Section 1(c), shall use its best efforts
to
cooperate with the indemnifying party in the defense of any such action
or
claim. The indemnifying party shall not be liable for any settlement of
any such
action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if there
be a
final judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless the indemnified party from and against
any
loss or liability (to the extent set forth in Section 1(a), Section 1(b)
or
Section 1(c) as applicable) by reason of such settlement or
judgment.
2. All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if personally delivered to or mailed by
registered mail, postage prepaid, or transmitted by facsimile and confirmed
by
similar mailed writing as follows: (i) if to Company: ________________,
[__],
Attention: [__], and (ii) if to the Depositor:
____________________________________, Facsimile (___) ___-____, Attention:
Legal. Any party hereto may alter the address to which communications or
copies
are to be sent by giving notice of such change of address in conformity
with the
provisions of this Section for the giving of notice.
3. This
Agreement may be executed in any number of counterparts, each of which
when so
executed shall be deemed to be an original, but all of such counterparts
shall
together constitute one instrument.
4. This
Agreement shall be construed in accordance with the laws of the State of
New
York.
3
IN
WITNESS WHEREOF, the Depositor and Company have caused their names to be
signed
by their respective officers thereunto duly authorized as of the date first
above written.
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| Title: | ||
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| By: | ||
| Name: | ||
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4
EXHIBIT
I
▇▇▇▇▇▇▇
MAC REPRESENTATIONS AND WARRANTIES
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1.
|
Eligible
Products.
|
With
respect to each Mortgage Loan, the Mortgagor was not encouraged or required
to
select a mortgage loan product offered by the Mortgage Loan’s originator which
is a higher cost product designed for less creditworthy borrowers, taking
into
account such facts as, without limitation, the Mortgage Loan’s requirements and
the borrower’s credit history, income,
assets and liabilities.
For a
borrower who seeks
financing through a
Mortgage Loan originator’s higher-priced subprime lending channel, the borrower
should be directed towards or offered the Mortgage Loan originator’s prime
mortgage line if the borrower is able to qualify for one of the prime
products.
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2.
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Borrower’s
Ability to Repay.
|
The
methodology used in underwriting the extension of credit for each Mortgage
Loan
in the trust did not rely solely on the extent of the Mortgagor’s equity in the
collateral as the principal determining factor in approving such extension
of
credit. The methodology employed objective criteria such as the
borrower’s credit history, income, assets or
liabilities, to the proposed mortgage payment and, based on such methodology,
the Mortgage Loan’s originator made a reasonable determination that at the time
of origination the Mortgagor had the ability to make timely payments on
the
Mortgage Loan.
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3.
|
Indiana
High Cost Home Loan.
|
There
is
no Mortgage Loan that was originated on or after January 1, 2005, which
is a
“high cost home loan” as defined under the Indiana Home Loan Practices Act (I.C.
24-9).
| 4. |
Prepayment
Penalties.
|
With
respect to any Mortgage Loan that contains a Prepayment Penalty: (a) the
Mortgage Loan provides some benefit to the Mortgagor (e.g.,
a rate
or fee reduction) in exchange for accepting such Prepayment Penalty; (b)
the
Mortgage Loan’s originator had a written policy of offering the Mortgagor, or
requiring third-party brokers to offer the Mortgagor, the option of obtaining
a
mortgage loan that did not require payment of such a Prepayment Penalty;
(c) the
Prepayment Penalty was adequately disclosed to the Mortgagor pursuant to
applicable state and federal law; (d) no subprime Mortgagor Loan originated
on
or after October 1, 2002 will provide for Prepayment Penalties for a term
in excess
of
three (3) years and any Mortgage Loans originated prior to such date, and
any
non-subprime loans, will not provide for Prepayment Penalties for a term
in
excess of five (5) years; unless the Mortgage Loan was modified to reduce
the
prepayment period to no more than three (3) years (in the case of subprime
loans) or five (5) years (in the case of non-subprime loans) from the date
of
the note and the Mortgagor was notified in writing of such reduction in
prepayment period; and (e) such Prepayment Penalty may be imposed in any
instance when the Mortgage Loan is accelerated or paid off in connection
with
the workout of a delinquent Mortgage Loan or due to the Mortgagor’s default,
notwithstanding that the terms of the Mortgage Loan or state or federal
law
might permit the imposition of such Prepayment Penalty.
| 5. |
Manufactured
Housing.
|
No
Mortgage Loan is secured by manufactured housing.
2
MORTGAGE
LOAN PURCHASE AGREEMENT
This
is a
Purchase Agreement (the "Agreement"), dated as of December 1, 2006 by and
between Greenwich Capital Financial Products, Inc., having an office at
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Purchaser") and ▇▇▇▇▇
Fargo
Bank, N.A., having an ▇▇▇▇▇▇ ▇▇ ▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
(the
"Seller").
WITNESSETH
WHEREAS,
the Seller agrees to sell, and the Purchaser agrees to purchase, certain
fixed rate, first lien, conventional,
residential mortgage loans (the "Mortgage Loans") on a servicing retained
basis
as described herein:
WHEREAS,
the Mortgage Loans shall be delivered as whole loans; and
WHEREAS,
the parties intend hereby to set forth the terms and conditions upon which
the
proposed transactions will be effected.
NOW
THEREFORE, in consideration of the promises and the mutual agreements set
forth
herein, the parties hereto agree as follows:
SECTION
1.
All
capitalized terms not otherwise defined herein have the respective meanings
set
forth in the Seller's Warranties and Servicing Agreement, dated as of the
date
herewith (the "Seller's Warranties and Servicing Agreement"). The following
terms are defined as follows (except as otherwise agreed by the
parties):
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Cut-off
Date:
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December
1, 2006
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||
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Closing
Date:
|
December
21, 2006
|
||
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First
Remittance Date:
|
January
18, 2007
|
||
|
Servicing
Fee Rate:
|
.250%
|
SECTION
2. Agreement
to Purchase.
The
Seller agrees to sell, and the Purchaser agrees to purchase, certain Mortgage
Loans having an aggregate principal balance on the Cut-off Date in an amount
as
set forth in the Commitment Letter dated as of November 15, 2006, each
between
the Company and the Purchaser (the "Commitment Letter"), or in such other
amount
as agreed by the Purchaser and the Seller as evidenced by the actual aggregate
principal balance of the Mortgage Loans accepted by the Purchaser on the
Closing
Date. The Mortgage Loans will be delivered pursuant to a Seller's Warranties
and
Servicing Agreement, between the Purchaser and the Seller.
3
SECTION
3. Mortgage
Schedules.
The
Seller has provided the Purchaser with certain information constituting
a
listing of the Mortgage Loans to be purchased under this Agreement (the
"Mortgage Loan Schedule") substantially in the form attached hereto as
Exhibit
1. The Mortgage Loan Schedules shall conform to the definition of "Mortgage
Loan
Schedule" under the Seller's Warranties and Servicing Agreement.
SECTION
4. Purchase
Price.
The
purchase price for the Mortgage Loans (the "Purchase Price") shall be the
percentage of par as stated in the Commitment Letter, multiplied by the
aggregate principal balance, as of the Cut-off Date, of the Mortgage Loans
listed on the Mortgage Loan Schedule, after application of scheduled payments
of
principal due on or before the Cut-off Date whether or not collected. The
Purchase Price may be adjusted as stated in the Commitment Letter.
In
addition to the Purchase Price as described above, the Purchaser shall
pay to
the Seller, at closing, accrued interest on the aggregate principal amount
of
the Mortgage Loans at the weighted average Mortgage Loan Remittance Rate
from
the Cut-off Date through the day prior to the Closing Date,
inclusive.
The
Purchaser shall be entitled to (1) all scheduled principal due after the
Cut-off
Date, (2) all other recoveries of principal collected after the Cut-off
Date
(provided, however, that all scheduled payments of principal due on or
before
the Cut-off Date and collected by the Seller after the Cut-off Date shall
belong
to the Seller), and (3) all payments of interest on the Mortgage Loans
at the
Mortgage Loan Remittance Rate (minus that portion of any such payment which
is
allocable to the period prior to the Cut-off Date). The principal balance
of
each Mortgage Loan as of the Cut-off Date is determined after application
of
payments of principal due on or before the Cut-off Date whether or not
collected. Therefore, payments of scheduled principal and interest prepaid
for a
Due Date beyond the Cut-off Date shall not be applied to the principal
balance
as of the Cut-off Date. Such prepaid amounts (minus interest at the Servicing
Fee Rate) shall be the property of the Purchaser. The Seller shall deposit
any
such prepaid amounts into the Custodial Account, which account is established
for the benefit of the Purchaser for subsequent remittance by the Seller
to the
Purchaser.
SECTION
5. Examination
of Mortgage Files.
Prior to
the Closing Date, the Seller shall (a) deliver to the Purchaser in escrow,
for
examination, the Custodial Mortgage File for each Mortgage Loan, including
a
copy of the Assignment of Mortgage, pertaining to each Mortgage Loan, or
(b)
make the Custodial Mortgage Files and the Retained Mortgage Files available
to
the Purchaser for examination at the Seller's offices or such other location
as
shall otherwise be agreed upon by the Purchaser and the Seller. Such examination
may be made by the Purchaser at any time before or after the Closing Date
upon
prior reasonable notice to the Seller or by any prospective purchaser of
the
Mortgage Loans from the Purchaser at any time after the Closing Date upon
prior
reasonable notice to the Seller. The
fact
that the Purchaser or any prospective purchaser of the Mortgage Loans has
conducted or has failed to conduct any partial or complete examination
of the
Custodial Mortgage Files and the Retained Mortgage Files shall not affect
the
Purchaser's (or any of its successor's) rights to demand repurchase,
substitution or other relief or remedy as provided under the related Seller's
Warranties and Servicing Agreement.
4
SECTION
6. Representations,
Warranties and Agreements of Seller.
The
Seller agrees and acknowledges that it shall, as a condition to the consummation
of the transactions contemplated hereby, make the representations and warranties
specified in Section 3.01 and 3.02 of the Seller's Warranties and Servicing
Agreement, as of the Closing Date. The meaning of the term "Agreement"
as used
in Sections 3.01 and 3.02 of the Seller's Warranties and Servicing Agreement
shall include this Agreement. The Seller, without conceding that the Mortgage
Loans are securities, hereby makes the following additional representations,
warranties and agreements which shall be deemed to have been made as of
the
Closing Date:
a) neither
the Seller nor anyone acting on its behalf has offered, transferred, pledged,
sold or otherwise disposed of any Mortgage Loans, any interest in any Mortgage
Loans or any other similar security to, or solicited any offer to buy or
accept
a transfer, pledge or other disposition of any Mortgage Loans, any interest
in
any Mortgage Loans or any other similar security from, or otherwise approached
or negotiated with respect to any Mortgage Loans, any interest in any Mortgage
Loans or any other similar security with, any person in any manner, or
made any
general solicitation by means of general advertising or in any other manner,
or
taken any other action which would constitute a distribution of the Mortgage
Loans under the Securities Act of 1933 (the "1933 Act") or which would
render
the disposition of any Mortgage Loans a violation of Section 5 of the 1933
Act
or require registration pursuant thereto, nor will it act, nor has it authorized
or will it authorize any person to act, in such manner with respect to
the
Mortgage Loans; and
b) the
Seller has not dealt with any broker or agent or anyone else who might
be
entitled to a fee or commission in connection with this transaction other
than
the Purchaser.
SECTION
7. Representation,
Warranties and Agreement of Purchaser.
The
Purchaser, without conceding that the Mortgage Loans are securities, hereby
makes the following representations, warranties and agreements, which shall
have
been deemed to have been made as of the Closing Date.
a) the
Purchaser understands that the Mortgage Loans have not been registered
under the
1933 Act or the securities laws of any state;
b) the
Purchaser is acquiring the Mortgage Loans for its own account only and
not for
any other person;
c) the
Purchaser considers itself a substantial, sophisticated institutional investor
having such knowledge and experience in financial and business matters
that it
is capable of evaluating the merits and risks of investment in the Mortgage
Loans;
d) the
Purchaser has been furnished with all information regarding the Mortgage
Loans
which it has requested from the Seller; and
5
e) neither
the Purchaser nor anyone acting on its behalf offered, transferred, pledged,
sold or otherwise disposed of any Mortgage Loan, any interest in any Mortgage
Loan or any other similar security to, or solicited any offer to buy or
accept a
transfer, pledge or other disposition of any Mortgage Loan, any interest
in any
Mortgage Loan or any other similar security from, or otherwise approached
or
negotiated with respect to any Mortgage Loan, any interest in any Mortgage
Loan
or any other similar security with, any person in any manner, or made any
general solicitation by means of general advertising or in any other manner,
or
taken any other action which would constitute a distribution of the Mortgage
Loans under the 1933 Act or which would render the disposition of any Mortgage
Loan a violation of Section 5 of the 1933 Act or require registration pursuant
thereto, nor will it act, nor has it authorized or will it authorize any
person
to act, in such manner with respect to the Mortgage Loans.
SECTION
8. Closing.
The
closing for the purchase and sale of the Mortgage Loans, shall take place
on the
Closing Date. At the Purchaser's option, the Closing shall be either: by
telephone, confirmed by letter or wire as the parties shall agree; or conducted
in person, at such place as the parties shall agree.
The
closing shall be subject to each of the following conditions:
a) all
of
the representations and warranties of the Seller under this Agreement and
under
the Seller's Warranties and Servicing Agreement shall be true and correct
as of
the Closing Date and no event shall have occurred which, with notice or
the
passage of time, would constitute a default under this Agreement or an
Event of
Default under the related Seller's Warranties and Servicing
Agreement;
b) the
Purchaser shall have received, or the Purchaser's attorneys shall have
received
in escrow, all Closing Documents as specified in Section 9 of this Agreement,
in
such forms as are agreed upon and acceptable to the Purchaser, duly executed
by
all signatories other than the Purchaser as required pursuant to the respective
terms thereof;
c) the
Seller shall have delivered and released to the Custodian under the Seller's
Warranties and Servicing Agreement all documents required pursuant to the
related Custodial Agreement; and
d) all
other
terms and conditions of this Agreement and the Seller's Warranties and
Servicing
Agreement shall have been complied with.
Subject
to the foregoing conditions, the Purchaser shall pay to the Seller on the
Closing Date the Purchase Price, plus accrued interest pursuant to Section
4 of
this Agreement, by wire transfer of immediately available funds to the
account
designated by the Seller.
SECTION
9. Closing
Documents.
With
respect to the Mortgage Loans, the Closing Documents shall consist of fully
executed originals of the following documents:
6
|
a)
|
the
Seller's Warranties and Servicing Agreement, dated as of the
Cut-off Date,
in two counterparts;
|
|
b)
|
this
Agreement in two counterparts;
|
|
c)
|
the
Custodial Agreement, attached as an exhibit to the Seller's Warranties
and
Servicing Agreement;
|
|
d)
|
the
Mortgage Loan Schedule, one copy to be attached to each counterpart
of the
Seller's Warranties and Servicing Agreement, to each counterpart
of this
Agreement, and to each counterpart of the Custodial Agreement,
as the
Mortgage Loan Schedules thereto;
|
|
e)
|
a
trust receipt, as required under the Custodial Agreement;
and
|
|
f)
|
an
Opinion of Counsel of the Seller, in the form of Exhibit 2 hereto.
|
SECTION
10. Costs.
The
Purchaser shall pay any commissions due its salesmen, the legal fees and
expenses of its attorneys and the costs and expenses associated with the
Custodian. The Seller shall be responsible for reasonable costs and expenses
associated with any preparation and recording of the initial Assignments
of
Mortgage. All other costs and expenses incurred in connection with the
transfer
and delivery of the Mortgage Loans, including fees for title policy endorsements
and continuations and the Seller's attorney fees, shall be paid by the
Seller.
SECTION
11. Servicing.
The
Mortgage Loans shall be serviced by the Seller in accordance with the terms
of
the applicable Seller's Warranties and Servicing Agreement. The Seller
shall be
entitled to servicing fees calculated as provided therein, at the Servicing
Fee
Rate shown on the first page of this Agreement unless otherwise agreed
by the
parties.
SECTION
12. 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 for the most recently
completed two (2) fiscal years respecting which such a statement is available,
as well as a Consolidated Statement of Condition at the end of the last
two (2)
fiscal years covered by such Consolidated Statement of Operations. The
Purchaser
shall also make available any comparable interim statements to the extent
any
such statements have been prepared by the Seller in a format intended or
otherwise suitable for the public at large. The Seller, if it has not already
done so, agrees to furnish promptly to the Purchaser copies of the statements
specified above. The Seller shall also make available information on its
servicing performance with respect to loans in its own portfolio and loans
serviced for others (if any), including loss and delinquency
ratios.
The
Seller also agrees to allow access to a knowledgeable (as shall be determined
by
the Seller) 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.
7
SECTION
13. Mandatory
Delivery.
The sale
and delivery on the Closing Date of the Mortgage Loans described on the
Mortgage
Loan Schedule is mandatory, it being specifically understood and agreed
that
each Mortgage Loan is unique and identifiable on the date hereof and that
an
award of money damages would be insufficient to compensate the Purchaser
for the
losses and damages incurred by the Purchaser (including damages to prospective
purchasers of the Mortgage Loans) in the event of the Seller's failure
to
deliver the Mortgage Loans on or before the Closing Date. All rights and
remedies of the Purchaser under this Agreement are distinct from, and cumulative
with, any other rights or remedies under this Agreement or afforded by
law or
equity and all such rights and remedies may be exercised concurrently,
independently or successively.
SECTION
14. 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,
return receipt requested, or, if by other means, when received by the other
party at the address shown on the first page hereof, or such other address
as
may hereafter be furnished to the other party by like notice. Any such
demand,
notice of 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
15. 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 as close as possible to the economic effect of this
Agreement
without regard to such invalidity.
SECTION
16. 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
17. Place
of Delivery and Governing Law.
This
Agreement shall be deemed in effect when a fully executed counterpart thereof
is
received by the Purchaser in the State of New York and shall be deemed
to have
been made in the State of New York. The Agreement shall be construed in
accordance with the laws of the State of New York and the obligations,
rights
and remedies of the parties hereunder shall be determined in accordance
with the
laws of the State of New York, except to the extent preempted by Federal
Law.
8
SECTION
18. Further
Agreements.
The
Purchaser and the Seller each agree to execute and deliver to the other
such
additional documents, instruments or agreements as may be necessary or
appropriate to effectuate the purposes of this Agreement.
Without
limiting the generality of the foregoing, the Seller shall reasonably cooperate
with the Purchaser in connection with the initial resales of the Mortgage
Loans
by the Purchaser. In that connection, the Seller shall provide to the Purchaser:
(i) any and all information and appropriate verification of information,
whether
through letters of its auditors and counsel or otherwise, as the Purchaser
shall
reasonably request, and (ii) such additional representations, warranties,
covenants, opinions of counsel, letters from auditors and certificates
of public
officials or officers of the Seller as are reasonably believed necessary
by the
Purchaser in connection with such resales. Prior to incurring any out-of-pocket
expenses pursuant to this paragraph, the Seller shall notify the Purchaser
in
writing of the estimated amount of such expense. The Purchaser shall reimburse
the Seller for any such expense following its receipt of appropriate details
thereof.
SECTION
19. Intention
of the Parties.
It is
the intention of the parties that the Purchaser is purchasing, and the
Seller is
selling, an undivided 100% ownership interest in the Mortgage Loans and
not a
debt instrument of the Seller or another security. Accordingly, the parties
hereto each intend to treat the transaction for Federal income tax purposes
as a
sale by the Seller, and a purchase by the Purchaser, of the Mortgage Loans.
The
Purchaser shall have the right to review the Mortgage Loans and the related
Custodial Mortgage Files to determine the characteristics of the Mortgage
Loans
which shall affect the Federal income tax consequences of owning the Mortgage
Loans and the Seller shall cooperate with all reasonable requests made
by the
Purchaser in the course of such review.
SECTION
20. Successors
and Assigns; Assignment of Purchase Agreement.
This
Agreement shall bind and inure to the benefit and be enforceable by the
Seller
and the Purchaser and the respective successors and assigns of the Seller
and
the Purchaser. This Agreement shall not be assigned, pledged or hypothecated
by
the Seller to a third party without the consent of the Purchaser.
SECTION
21. Waivers;
Other Agreements.
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
22. Exhibits.
The
exhibits to this Agreement are hereby incorporated and made a part hereof
and
are an integral part of this Agreement.
SECTION
23. General
Interpretive Principles.
For
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires:
9
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) a
reference to a Subsection without further reference to a Section is a reference
to such Subsection as contained in the same Section in which the reference
appears, and this rule shall also apply to Paragraphs and other
subdivisions;
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
24. 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.
[Signatures
Follow]
10
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: | ||
|
▇▇▇▇▇
FARGO BANK, N.A.
(Seller)
|
||
| |
|
|
| By: | ||
| Name: | ||
| Title: | ||
11
EXHIBIT
1
MORTGAGE
LOAN SCHEDULE
(WFHM
2006-W109)
EXHIBIT
2
FORM
OF
OPINION OF COUNSEL
@
@
@
@
Re: ▇▇▇▇▇
Fargo Bank, N.A.
Mortgage
Loan Series @
Dear
Sir/Madam:
I
am @ of
▇▇▇▇▇ Fargo Bank, N.A. and have acted as counsel to ▇▇▇▇▇ Fargo Bank, N.A.
(the
“Company”), with respect to certain matters in connection with the sale by the
Company of the mortgage loans designated as Mortgage Loan Series @ (the
“Mortgage Loans”) pursuant to that certain Seller’s Warranties and Servicing
Agreement and Mortgage Loan Purchase Agreement by and between the Company
and @
(the “Purchaser”), dated as of @, 20__, (the “Agreements”), which sale is in the
form of whole Mortgage Loans. Capitalized terms not otherwise defined herein
have the meanings set forth in the Seller’s Warranties and Servicing
Agreement.
I
have
examined the following documents:
|
1.
|
the
Seller’s Warranties and Servicing
Agreement;
|
|
2.
|
the
Mortgage Loan Purchase Agreement;
|
|
3.
|
the
Custodial Agreement;
|
|
4.
|
the
form of endorsement of the Mortgage Notes;
and
|
|
5.
|
such
other documents, records and papers as I have deemed necessary
and
relevant as a basis for this
opinion.
|
To
the
extent I have deemed necessary and proper, I have relied upon the
representations and warranties of the Company contained in the Agreements.
I
have assumed the authenticity of all documents submitted to me as originals,
the
genuineness of all signatures, the legal capacity of natural persons and
the
conformity to the originals of all documents.
Based
upon the foregoing, it is my opinion that;
|
1.
|
The
Company is a national banking association duly organized, validly
existing
and in good standing under the laws of the United States.
|
|
2.
|
The
Company has the power to engage in the transactions contemplated
by the
Agreements, the Custodial Agreement and all requisite power,
authority and
legal right to execute and deliver the Agreements, the Custodial
Agreement
and the Mortgage Loans, and to perform and observe the terms
and
conditions of such instruments.
|
|
3.
|
Each
person who, as an officer or attorney-in-fact of the Company,
signed (a)
the Agreements, each dated as of @, 20__, by and between the
Company and
the Purchaser, and (b) any other document delivered prior hereto
or on the
date hereof in connection with the sale and servicing of the
Mortgage
Loans in accordance with the Agreements and the person was, at
the
respective times of such signing and delivery, and is, as of
the date
hereof, duly elected or appointed, qualified and acting and as
such
officer or attorney-in-fact, and the signatures of such persons
appearing
on such documents are their genuine
signatures.
|
|
4.
|
Each
of the Agreements, the Custodial Agreement, and the Mortgage
Loans, has
been duly authorized, executed and delivered by the Company and
is a
legal, valid and binding agreement enforceable in accordance
with its
terms, subject to the
effect of insolvency, liquidation, conservatorship and other
similar laws
administered by the Federal Deposit Insurance Corporation affecting
the
enforcement of contract obligations of insured banks and
subject to the application of the rules of equity, including
those
respecting the availability of specific performance, none of
which will
materially interfere with the realization of the benefits provided
thereunder or with the Purchaser’s ownership of the Mortgage
Loans.
|
|
5.
|
The
Company has been duly authorized to allow any of its officers
to execute
any and all documents by original signature in order to complete
the
transactions contemplated by the Agreements and the Custodial
Agreement,
and by original or facsimile signature in order to execute the
endorsements to the Mortgage Notes and the assignments of the
Mortgages,
and the original or facsimile signature of the officer at the
Company
executing the endorsements to the Mortgage Notes and the assignments
of
the Mortgages represents the legal and valid signature of said
officer of
the Company.
|
|
6.
|
Either
(i) no consent, approval, authorization or order of any court
or
governmental agency or body is required for the execution, delivery
and
performance by the Company of or compliance by the Company with
the
Agreements, the Custodial Agreement or the sale and delivery
of the
Mortgage Loans or the consummation of the transactions contemplated
by the
Agreements, and the Custodial Agreement; or (ii) any required
consent,
approval, authorization or order has been obtained by the Company.
|
|
7.
|
Neither
the consummation of the transactions contemplated by, nor the
fulfillment
of the terms of the Agreements and the Custodial Agreement, will
conflict
with or results in or will result in a breach of or constitutes
or will
constitute a default under the charter or by-laws of the Company,
the
terms of any indenture or other agreement or instrument to which
the
Company is a party or by which it is bound or to which it is
subject, or
violates any statute or order, rule, regulations, writ, injunction
or
decree of any court, governmental authority or regulatory body
to which
the Company is subject or by which it is
bound.
|
|
8.
|
There
is no action, suit, proceeding or investigation pending or, to
the best of
my knowledge, threatened against the Company which, in my opinion,
either
in any one instance or in the aggregate, may result in any material
adverse change in the business, operations, financial condition,
properties or assets of the Company or in any material impairment
of the
right or ability of the Company to carry on its business substantially
as
now conducted or in any material liability on the part of the
Company or
which would draw into question the validity of the Agreements,
and the
Custodial Agreement, or of any action taken or to be taken in
connection
with the transactions contemplated thereby, or which would be
likely to
impair materially the ability of the Company to perform under
the terms of
the Agreements and the Custodial
Agreement.
|
|
9.
|
For
purposes of the foregoing, I have not regarded any legal or governmental
actions, investigations or proceedings to be "threatened" unless
the
potential litigant or governmental authority has manifested to
the legal
department of the Company or an employee of the Company responsible
for
the receipt of process a present intention to initiate such proceedings;
nor have I regarded any legal or governmental actions, investigations
or
proceedings as including those that are conducted by state or
federal
authorities in connection with their routine regulatory activities.
The
sale of each Mortgage Note and Mortgage as and in the manner
contemplated
by the Agreements is sufficient fully to transfer all right,
title and
interest of the Company thereto as noteholder and mortgagee,
apart from
the rights to service the Mortgage Loans pursuant to the
Agreements.
|
|
10.
|
The
form of endorsement that is to be used with respect to the Mortgage
Loans
is legally valid and sufficient to duly endorse the Mortgage
Notes to the
Purchaser. Upon the completion of the endorsement of the Mortgage
Notes
and the completion of the assignments of the Mortgages, and the
recording
thereof, the endorsement of the Mortgage Notes, the delivery
to the
Custodian of the completed assignments of the Mortgages, and
the delivery
of the original endorsed Mortgage Notes to the Custodian would
be
sufficient to permit the entity to which such Mortgage Note is
initially
endorsed at the Purchaser’s direction, and to whom such Assignment of
Mortgages is initially assigned at the Purchaser’s direction, to avail
itself of all protection available under applicable law against
the claims
of any present or future creditors of the Company, and would
be sufficient
to prevent any other sale, transfer, assignment, pledge or hypothecation
of the Mortgages and the Mortgage Notes by the Company from being
enforceable.
|
This
opinion is given to you for your sole benefit, and no other person or entity
is
entitled to rely hereon except that the purchaser or purchasers to which
you
initially and directly resell the Mortgage Loans may rely on this opinion
as if
it were addressed to them as of its date.
Sincerely,
@
@
@/@