GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.
GREENWICH
CAPITAL FINANCIAL PRODUCTS, INC.
Purchaser
and
U.S.
CENTRAL CREDIT UNION
Company
Dated
as
of August 1, 2004
(Fixed
and Adjustable Rate Mortgage Loans)
TABLE
OF CONTENTS
ARTICLE
I
|
Section
1.01 Defined
Terms
|
2
|
|
ARTICLE
II
|
|
|
Section
2.01 Agreement to
Purchase
|
15
|
|
Section
2.02 Purchase
Price
|
15
|
|
Section
2.03 Servicing of
Mortgage Loans
|
16
|
|
Section
2.04 Record Title
and Possession of Mortgage Files; Maintenance
of Servicing Files
|
16
|
|
Section
2.05 Books and
Records
|
17
|
|
Section
2.06 Transfer of
Mortgage Loans
|
17
|
|
Section
2.07 Delivery of
Mortgage Loan Documents
|
18
|
|
Section
2.08 Quality Control
Procedures
|
20
|
|
Section
2.09 Near-term
Principal Prepayments; Near Term Payment Defaults
|
20
|
|
ARTICLE
III
|
|
|
Section
3.01 Representations
and Warranties of the Company
|
20
|
|
Section
3.02 Representations
and Warranties as to Individual Mortgage Loans
|
23
|
|
Section
3.03 Repurchase;
Substitution
|
33
|
|
Section
3.04 Representations
and Warranties of the Purchaser
|
35
|
|
ARTICLE
IV
|
|
|
Section
4.01 Company to
Act
as Servicer
|
36
|
|
Section
4.02 Collection
of
Mortgage Loan Payments
|
40
|
|
Section
4.03 Realization
Upon Defaulted Mortgage Loans
|
40
|
|
Section
4.04 Establishment
of Custodial Accounts; Deposits
in Custodial Accounts
|
41 |
|
Section
4.05 Permitted
Withdrawals from the Custodial
Account
|
43 |
|
Section
4.06 Establishment
of Escrow Accounts; Deposits
in Escrow Accounts
|
44 |
|
Section
4.07 Permitted
Withdrawals From Escrow Account
|
44
|
|
Section
4.08 Payment of
Taxes, Insurance and Other Charges;
Maintenance of Primary Mortgage
|
45 |
|
Section
4.09 Transfer of
Accounts Insurance Policies; Collections Thereunder
|
46
|
ii
|
Section
4.10 Maintenance
of
Hazard Insurance
|
47
|
|
Section
4.11 Maintenance
of
Mortgage Impairment Insurance
Policy
|
48 |
|
Section
4.12 Fidelity Bond,
Errors and Omissions Insurance
|
48 |
|
Section
4.13 Title,
Management and Disposition of REO Property
|
49
|
|
Section
4.14 Notification
of
Maturity Date
|
50
|
|
ARTICLE
V
|
|
|
Section
5.01 Distributions
|
50
|
|
Section
5.02 Statements
to
the Purchaser
|
51
|
|
Section
5.03 Monthly
Advances by the Company
|
52
|
|
Section
5.04 Liquidation
Reports
|
52
|
|
ARTICLE
VI
|
|
|
Section
6.01 Assumption
Agreements
|
52
|
|
Section
6.02 Satisfaction
of
Mortgages and Release of
Mortgage Files
|
54 |
|
Section
6.03 Servicing
Compensation
|
55
|
|
Section
6.04 Annual
Statement as to Compliance
|
55
|
|
Section
6.05 Annual
Independent Certified Public Accountants’
Servicing Report
|
55
|
|
Section
6.06 Purchaser’s
Right to Examine Servicer Records
|
56
|
|
Section
6.07 ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Certification
|
56
|
|
ARTICLE
VII
|
|
|
Section
7.01 Company Shall
Provide Information as Reasonably Required
|
|
|
|
|
|
ARTICLE
VIII
|
|
|
Section
8.01 Indemnification;
Third Party Claims
|
58
|
|
Section
8.02 Merger or
Consolidation of the Company
|
59
|
|
Section
8.03 Limitation
on
Liability of the Company and Others
|
60
|
|
Section
8.04 Company Not
to
Assign or Resign
|
60
|
|
Section
8.05 No Transfer
of
Servicing
|
61
|
iii
|
ARTICLE
IX
|
|
|
Section
9.01 Events of
Default
|
61
|
|
Section
9.02 Waiver of
Defaults
|
63
|
|
ARTICLE
X
|
|
|
Section
10.01 Termination
|
63
|
|
ARTICLE
XI
|
|
|
Section
11.01 Successor to
the Company
|
63
|
|
Section
11.02 Amendment
|
64
|
|
Section
11.03 Recordation
of
Agreement
|
64
|
|
Section
11.04 Governing
Law
|
65
|
|
Section
11.05 Notices
|
65
|
|
Section
11.06 Severability
of
Provisions
|
66
|
|
Section
11.07 Exhibits
|
66
|
|
Section
11.08 General
Interpretive Principles
|
66
|
|
Section
11.09 Reproduction
of
Documents
|
67
|
|
Section
11.10 Confidentiality
of Information
|
67
|
|
Section
11.11 Recordation
of
Assignment of Mortgage
|
68
|
|
Section
11.12 Assignment
by
Purchaser
|
68
|
|
Section
11.13 No
Partnership
|
68
|
|
Section
11.14 Execution:
Successors and Assigns
|
68
|
|
Section
11.15 Entire
Agreement
|
68
|
|
Section
11.16 No
Solicitation
|
69
|
|
Section
11.17 Closing
|
69
|
|
Section
11.18 Cooperation
of
Company with Reconstitution
|
70
|
EXHIBITS
|
A
|
Contents
of Mortgage File
|
|
B
|
Custodial
Account Letter Agreement
|
|
C
|
Escrow
Account Letter Agreement
|
|
D-1
|
Form
of Assignment, Assumption and Recognition Agreement For Pass-Through
Transfer
|
|
D-2
|
Form
of Assignment, Assumption and Recognition Agreement For Whole Loan
Transfer
|
|
E
|
Form
of Trial Balance
|
|
F
|
[reserved]
|
|
G
|
Request
for Release of Documents and Receipt
|
|
H
|
Company’s
Underwriting Guidelines
|
|
I
|
Form
of Term Sheet
|
iv
This
is a
Purchase, Warranties and Servicing Agreement, dated as of August 1, 2004,
and is
executed between GREENWICH CAPITAL FINANCIAL PRODUCTS, INC., as Purchaser,
a
Delaware corporation, with offices located at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇.
▇▇,
▇▇▇▇▇ (the "Purchaser"), and U.S. CENTRAL CREDIT UNION, a Kansas corporation,
with offices located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇
(the "Company").
WITNESSETH:
WHEREAS,
the Purchaser may agree to purchase from the Company and the Company may
agree
to sell to the Purchaser, from time to time, certain Mortgage Loans on a
servicing retained basis;
WHEREAS,
each of the Mortgage Loans is secured by a mortgage, deed of trust or other
security instrument creating a first lien on a residential dwelling located
in
the jurisdiction indicated on the Mortgage Loan Schedule, which is annexed
to
the related Term Sheet; and
WHEREAS,
the Purchaser and the Company wish to prescribe the representations and
warranties of the Company with respect to itself and the Mortgage Loans and
the
management, servicing and control of the Mortgage Loans by the
Servicer;
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
Section
1.01 Defined
Terms.
Whenever
used in this Agreement, the following words and phrases, unless the context
otherwise requires, shall have the following meaning specified in this
Article:
Accepted
Servicing Practices:
With
respect to any Mortgage Loan, those mortgage servicing practices (including
collection procedures) of prudent mortgage banking institutions which service
mortgage loans of the same type as such Mortgage Loan in the jurisdiction
where
the related Mortgaged Property is located, and which are in accordance with
▇▇▇▇▇▇ ▇▇▇ servicing practices and procedures, for MBS pool mortgages, as
defined in the ▇▇▇▇▇▇ Mae Guides including future updates.
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.
Agreement:
This
Purchase, Warranties and Servicing Agreement including all exhibits hereto,
amendments hereof and supplements hereto.
Appraised
Value:
With
respect to any Mortgaged Property, the value thereof as determined by an
appraisal made for the originator of the Mortgage Loan at the time of
origination of the Mortgage Loan by an appraiser who met the requirements
of the
Servicer and ▇▇▇▇▇▇ ▇▇▇.
Assignment:
An
individual 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 of record the
sale
or transfer of the Mortgage Loan.
Balloon
Mortgage Loans:
A
Mortgage Loan with scheduled periodic payments that are insufficient to fully
amortize the face amount of the Note prior to maturity such that the scheduled
final payment is greater than twice any scheduled periodic payment.
Balloon
Payment:
With
respect to any Balloon Mortgage Loan as of any date of determination, the
Monthly Payment payable on the maturity of such Mortgage Loan.
BIF:
The
Bank Insurance Fund, or any successor thereto.
Business
Day:
Any day
other than: (i) a Saturday or Sunday, or (ii) a legal holiday in the State
of
Kansas or (iii) a day on which banks in the State of Kansas, the State of
New
York or the State of Connecticut are authorized or obligated by law or executive
order to be closed.
Closing
Date:
With
respect to any Mortgage Loan, the date stated on the related Term Sheet.
Code: The
Internal Revenue Code of 1986, or any successor statute thereto.
Company:
U.S.
Central Credit Union and its successors in interest and assigns, as permitted
by
this Agreement.
Company's
Officer's Certificate:
A
certificate signed by the Chairman of the Board, President, any Senior Vice
President, Vice President or Treasurer of Company stating the date by which
Company expects to receive any missing documents sent for recording from
the
applicable recording office.
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.
3
Confirmation:
The
trade confirmation letter between the Purchaser and the Company which relates
to
the Mortgage Loans.
Co-op
Lease:
With
respect to a Co-op Loan, the lease with respect to a dwelling unit occupied
by
the Mortgagor and relating to the stock allocated to the related dwelling
unit.
Co-op
Loan:
A
Mortgage Loan secured by the pledge of stock allocated to a dwelling unit
in a
residential cooperative housing corporation and a collateral assignment of
the
related Co-op Lease.
Current
Appraised Value: With
respect to any Mortgaged Property, the value thereof as determined by an
appraisal made for the Servicer (by an appraiser who met the requirements
of the
Servicer and ▇▇▇▇▇▇ Mae) at the request of a Mortgagor for the purpose of
canceling a Primary Mortgage Insurance Policy in accordance with federal,
state
and local laws and regulations or otherwise made at the request of the Servicer
or Mortgagor.
Current
LTV: The
ratio
of the Stated Principal Balance of a Mortgage Loan to the Current Appraised
Value of the Mortgaged Property.
Custodial
Account:
Each
separate demand account or accounts created and maintained pursuant to Section
4.04 which shall be entitled "[_____________________], in trust for the
[Purchaser], Owner of Mortgage Loans" and shall be established in an Eligible
Account, in the name of the Person that is the "Purchaser" with respect to
the
related Mortgage Loans.
Custodian:
With
respect to any Mortgage Loan, the entity stated on the related Term Sheet,
and
its successors and assigns, as custodian for the Purchaser.
Cut-off
Date:
With
respect to any Mortgage Loan, the date stated on the related Term Sheet.
Determination
Date:
The
15th day (or if such 15th day is not a Business Day, the Business Day
immediately preceding such 15th day) of the month of the related Remittance
Date.
Due
Date:
The day
of the month on which the Monthly Payment is due on a Mortgage Loan, exclusive
of any days of grace, which is the first day of the month.
Due
Period:
With
respect to any Remittance Date, the period commencing on the second day of
the
month preceding the month of such Remittance Date and ending on the first
day of
the month of the Remittance Date.
Eligible
Account:
An
account established and maintained: (i) within FDIC or NCUSIF insured accounts
created, maintained and monitored by the Company so that all funds deposited
therein are fully insured, or (ii) as a trust account with the corporate
trust
department of a depository institution or trust company organized under the
laws
of the United States of America or any one of the states thereof or the District
of Columbia which is not affiliated with the Company (or any Servicer), the
unsecured and uncollateralized long-term debt obligations of which shall
be
rated “A2” or higher by Standard & Poor’s and “A” or higher by Fitch, Inc.
or one of the two highest short-term ratings by any applicable Rating Agency,
or
(iii) with an entity which is an institution whose deposits are insured by
the
FDIC or the NCUSIF, the unsecured and uncollateralized long-term debt
obligations of which shall be rated “A2” or higher by Standard & Poor’s and
“A” or higher by Fitch, Inc. or one of the two highest short-term ratings by
any
applicable Rating Agency, and which is either (a) a federal savings association
duly organized, validly existing and in good standing under the federal banking
laws, (b) an institution duly organized, validly existing and in good standing
under the applicable banking laws of any state, (c) a national banking
association under the federal banking laws, (d) a principal subsidiary of
a bank
holding company, or (e)
a
credit
union duly organized, validly existing and in good standing pursuant to state
or
federal law, or (iv) if ownership of the Mortgage Loans is evidenced by
mortgaged-backed securities, the equivalent required ratings of each Rating
Agency, and held such that the rights of the Purchaser and the owner of the
Mortgage Loans shall be fully protected against the claims of any creditors
of
the Company (or any Servicer) and of any creditors or depositors of the
institution in which such account is maintained or (v) in a separate non-trust
account which is not fully insured by the FDIC, NCUSIF or other insurance
in an
Eligible Institution. In the event that a Custodial Account is established
pursuant to clause (iii), (iv) or (v) of the preceding sentence, the Company
shall provide the Purchaser with written notice on the Business Day following
the date on which the applicable institution fails to meet the applicable
ratings requirements.
4
Eligible
Institution:
An
institution having (i) the highest short-term debt rating, and one of the
two
highest long-term debt ratings of each Rating Agency; or (ii) with respect
to
any Custodial Account, an unsecured long-term debt rating of at least one
of the
two highest unsecured long-term debt ratings of each Rating Agency.
Equity
Take-Out Refinanced Mortgage Loan:
A
Refinanced Mortgage Loan the proceeds of which were in excess of the outstanding
principal balance of the existing mortgage loan as defined in the ▇▇▇▇▇▇
▇▇▇
Guide(s).
Escrow
Account:
Each
separate trust account or accounts created and maintained pursuant to Section
4.06 which shall be entitled "__________________, in trust for the [Purchaser],
Owner of Mortgage Loans, and various Mortgagors" and shall be established
in an
Eligible Account, in the name of the Person that is the "Purchaser" with
respect
to the related Mortgage Loans.
Escrow
Payments:
With
respect to any Mortgage Loan, the amounts constituting ground rents, taxes,
assessments, water rates, sewer rents, municipal charges, mortgage insurance
premiums, fire and hazard insurance premiums, condominium charges, and any
other
payments required to be escrowed by the Mortgagor with the mortgagee pursuant
to
the Mortgage or any other document.
Event
of Default:
Any one
of the conditions or circumstances enumerated in Section 9.01.
5
▇▇▇▇▇▇
Mae: The
Federal National Mortgage Association, or any successor thereto.
▇▇▇▇▇▇
▇▇▇ Guide(s):
The
▇▇▇▇▇▇ Mae Selling Guide and the ▇▇▇▇▇▇ ▇▇▇ Servicing Guide and all amendments
or additions thereto.
FDIC:
The
Federal Deposit Insurance Corporation, or any successor thereto.
Fidelity
Bond:
A
fidelity bond to be maintained by the Servicer pursuant to Section
4.12.
FIRREA:
The
Financial Institutions Reform, Recovery, and Enforcement Act of
1989.
▇▇▇▇▇▇▇
Mac:
▇▇▇▇▇▇▇
Mac, formerly the Federal Home Loan Mortgage Corporation, or any successor
thereto.
▇▇▇▇▇▇▇
Mac Guide:
The
▇▇▇▇▇▇▇ Mac Single Family Seller/Servicer Guide and all amendments or additions
thereto.
GAAP:
Generally accepted accounting principles, consistently applied.
HUD:
The
United States Department of Housing and Urban Development or any
successor.
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 rate thereon.
Initial
Rate Cap: As
to
each adjustable rate Mortgage Loan, where applicable, the maximum increase
or
decrease in the Mortgage Interest Rate on the first Adjustment
Date.
Insurance
Proceeds:
With
respect to each Mortgage Loan, proceeds of insurance policies insuring the
Mortgage Loan or the related Mortgaged Property.
Lender
Paid Mortgage Insurance Rate:
The
Lender Paid Mortgage Insurance Rate shall be a rate per annum equal to the
percentage shown on the Mortgage Loan Schedule.
Lender
Primary Mortgage Insurance Policy:
Any
Primary Mortgage Insurance Policy for which premiums are paid by the Company.
Lifetime
Rate Cap:
As to
each adjustable rate Mortgage Loan, the maximum Mortgage Interest Rate over
the
term of such Mortgage Loan.
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.
6
Loan-to-Value
Ratio or LTV:
With
respect to any Mortgage Loan, the ratio of the original outstanding principal
amount of the Mortgage Loan, to (i) the Appraised Value of the Mortgaged
Property as of the Origination Date with respect to a Refinanced Mortgage
Loan,
and (ii) the lesser of the Appraised Value of the Mortgaged Property as of
the
Origination Date or the purchase price of the Mortgaged Property with respect
to
all other Mortgage Loans.
Margin:
With
respect to each adjustable rate Mortgage Loan, the fixed percentage amount
set
forth in each 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.
Master
Servicer:
Any
Person who, pursuant to the Master Servicing Agreement, receives information
and
funds related to Mortgage Loans from one or more Servicer, processes such
information and relays it and the appropriate funds to either the Company
or the
Purchaser. The Master Servicer shall meet the qualifications and requirements
for a Servicer as set forth in this Agreement.
Master
Servicing Agreement:
The
agreement between the Master Servicer and the Company pursuant to which the
Master Servicer is designated and agrees to act as the Master Servicer, which
agreement shall not be inconsistent with this Agreement.
Monthly
Advance:
The
aggregate of the advances made by the Servicer on any Remittance Date pursuant
to Section 5.03.
Monthly
Payment:
The
scheduled monthly payment (including any Balloon Payment) of principal and
interest on a Mortgage Loan which is payable by a Mortgagor under the related
Mortgage Note.
Mortgage:
The
mortgage, deed of trust or other instrument securing a Mortgage Note which
creates a first lien on an unsubordinated estate in fee simple in real property
securing the Mortgage Note.
Mortgage
File:
The
mortgage documents pertaining to a particular Mortgage Loan which are specified
in Exhibit A hereto and any additional documents required to be added to
the
Mortgage File pursuant to this Agreement.
Mortgage
Impairment Insurance Policy:
A
mortgage impairment or blanket hazard insurance policy as required by Section
4.11.
Mortgage
Interest Rate:
The
annual rate at which interest accrues on any Mortgage Loan, which may be
adjusted from time to time for an adjustable rate Mortgage Loan, in accordance
with the provisions of the related Mortgage Note.
7
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 attached to the related Term Sheet, which Mortgage
Loan
includes without limitation the Mortgage File, the Monthly Payments, Principal
Prepayments, Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds,
REO Disposition Proceeds, and all other rights, benefits, proceeds and
obligations arising from or in connection with such Mortgage Loan, excluding
replaced or repurchased mortgage loans.
Mortgage
Loan Documents:
The
documents listed in
Exhibit A.
Mortgage
Loan Remittance Rate:
With
respect to each Mortgage Loan, the annual rate of interest remitted to the
Purchaser, which shall be equal to the Mortgage Interest Rate minus the
Servicing Fee Rate minus the Lender Paid Mortgage Insurance Rate.
Mortgage
Loan Schedule:
The
schedule of Mortgage Loans annexed to the related Term Sheet, such schedule
setting forth the following information with respect to each Mortgage Loan
in
the related Mortgage Loan Package:
(1) the
Company's Mortgage Loan identifying number;
(2) the
Mortgagor's first and last name;
(3)
the
street address of the Mortgaged Property including the city, state and zip
code;
(4) a
code
indicating whether the Mortgaged Property is owner-occupied, a second home
or an
investor property;
(5) the
type
of residential property constituting the Mortgaged Property;
(6)
the
original months to maturity of the Mortgage Loan;
(7) the
remaining months to maturity from the related Cut-off Date, based on the
original amortization schedule and, if different, the maturity expressed
in the
same manner but based on the actual amortization schedule;
(8) the
Sales
Price, if applicable, Appraised Value and Loan-to-Value Ratio, at
origination;
(9) the
Mortgage Interest Rate as of origination and as of the related Cut-off Date;
with respect to each adjustable rate Mortgage Loan, the initial Adjustment
Date,
the next Adjustment Date immediately following the related Cut-off Date,
the
Index, the Margin, the Initial Rate Cap, if any, Periodic Rate Cap, if any,
minimum Mortgage Interest Rate under the terms of the Mortgage Note and the
Lifetime Rate Cap;
8
(10) the
Origination Date of the Mortgage Loan;
(11) the
stated maturity date;
(12) the
amount of the Monthly Payment at origination;
(13) the
amount of the Monthly Payment as of the related Cut-off Date;
(14) the
original principal amount of the Mortgage Loan;
(15) the
scheduled Stated Principal Balance of the Mortgage Loan as of the close of
business on the related Cut-off Date, after deduction of payments of principal
due on or before the related Cut-off Date whether or not collected;
(16)
a
code indicating the purpose of the Mortgage Loan (i.e., purchase, rate and
term
refinance, equity take-out refinance);
(17)
a
code indicating the documentation style (i.e. full, alternative, etc.);
(18) the
number of times during the twelve (12) month period preceding the related
Closing Date that any Monthly Payment has been received after the month of
its
scheduled due date;
(19) the
date
on which the first payment is or was due;
(20)
a
code indicating whether or not the Mortgage Loan is the subject of a Primary
Mortgage Insurance Policy and the name of the related insurance
carrier;
(21)
a
code
indicating whether or not the Mortgage Loan is currently convertible and
the
conversion spread;
(22)
the
last
Due Date on which a Monthly Payment was actually applied to the unpaid principal
balance of the Mortgage Loan.
(23)
product
type (i.e. fixed, adjustable, 3/1, 5/1, etc.);
(24)
credit
score and/or mortgage score, if applicable;
(25) a
code
indicating whether or not the Mortgage Loan is the subject of a Lender Primary
Mortgage Insurance Policy and the name of the related insurance carrier and
the
Lender Paid Mortgage Insurance Rate;
(26) a
code
indicating whether or not the Mortgage Loan has a prepayment penalty and
if so,
the amount and term thereof;
9
(27) the
Current Appraised Value of the Mortgage Loan and Current LTV, if applicable;
and
(28)
whether
such Mortgage Loan is a Balloon Mortgage Loan.
With
respect to the Mortgage Loans in the aggregate, the Mortgage Loan Schedule
attached to the related Term Sheet shall set forth the following information,
as
of the related Cut-off Date:
(1) the
number of Mortgage Loans;
(2) the
current aggregate outstanding principal balance of the Mortgage
Loans;
(3) the
weighted average Mortgage Interest Rate of the Mortgage Loans;
(4) the
weighted average maturity of the Mortgage Loans; and
(5)
the
weighted average months to next Adjustment Date.
Mortgage
Note:
The
note or other evidence of the indebtedness of a Mortgagor secured by a
Mortgage.
Mortgaged
Property:
The
underlying real property securing repayment of a Mortgage Note, consisting
of a
single parcel of real estate considered to be real estate under the laws
of the
state in which such real property is located which may include condominium
units
and planned unit developments, improved by a residential dwelling; except
that
with respect to real property located in jurisdictions in which the use of
leasehold estates for residential properties is a widely-accepted practice,
a
leasehold estate of the Mortgage, the term of which is equal to or longer
than
the term of the Mortgage.
Mortgagor:
The
obligor on a Mortgage Note.
NCUA:
The
National Credit Union Administration
NCUSIF:
The
National Credit Union Share Insurance Fund
OCC:
Office
of the Comptroller of the Currency, its successors and assigns.
Officers'
Certificate:
A
certificate signed by the Chairman of the Board, the Vice Chairman of the
Board,
the President, a Senior Vice President or a Vice President or 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.
10
Opinion
of Counsel:
A
written opinion of counsel, who may be an employee of the party on behalf
of
whom the opinion is being given, reasonably acceptable to the
Purchaser.
Origination
Date:
The
date on which a Mortgage Loan funded, which date shall not, in connection
with a
Refinanced Mortgage Loan, be the date of the funding of the debt being
refinanced, but rather the closing of the debt currently outstanding under
the
terms of the Mortgage Loan Documents.
Originator:
As to
each Mortgage Loan, the financial institution that originated said Mortgage
Loan.
OTS:
Office
of Thrift Supervision, its successors and assigns.
Periodic
Rate Cap:
As to
each adjustable rate Mortgage Loan, the maximum increase or decrease in the
Mortgage Interest Rate on any Adjustment Date, as set forth in the related
Mortgage Note and the related Mortgage Loan Schedule.
Permitted
Investments:
Any one
or more of the following obligations or securities:
(i) direct
obligations of, and obligations fully guaranteed by the United States of
America
or any agency or instrumentality of the United States of America the obligations
of which are backed by the full faith and credit of the United States of
America;
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(ii)
(a) demand or time deposits, federal funds or bankers' acceptances
issued
by any depository institu-tion or trust company incorporated under
the
laws of the United States of America or any state thereof and subject
to
supervision and examination by federal and/or state banking authorities,
provided that the commercial paper and/or the short-term deposit
rating
and/or the long-term unsecured debt obligations or deposits of
such
depository institution or trust company at the time of such investment
or
contractual commitment providing for such investment are rated
in one of
the two highest rating categories by each Rating Agency and (b)
any other
demand or time deposit or certificate of deposit that is fully
insured by
the FDIC or the NCUSIF;
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(iii)
repurchase obligations with a term not to exceed thirty (30) days
and with
respect to (a) any security described in clause (i) above and entered
into
with a depository institution or trust company (acting as principal)
described in clause (ii)(a) above;
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(iv)
securities bearing interest or sold at a discount issued by any
corporation incorporated under the laws of the United States of
America or
any state thereof that are rated in one of the two highest rating
categories by each Rating Agency at the time of such in-vestment
or
contractual commitment providing for such investment; provided,
however,
that securities issued by any particular corporation will not be
Permitted
Investments to the extent that investments therein will cause the
then
outstanding principal amount of secur-ities issued by such corporation
and
held as Permitted Investments to exceed 10% of the aggregate outstand-ing
principal balances of all of the Mortgage Loans and Permitted
Investments;
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11
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(v)
commercial paper (including both non-interest-bearing discount
obligations
and interest-bearing obliga-tions payable on demand or on a specified
date
not more than one year after the date of issuance there-of) which
are
rated in one of the two highest rating categories by each Rating
Agency at
the time of such investment;
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(vi)
any other demand, money market or time deposit, obligation, security
or
investment as may be acceptable to each Rating Agency as evidenced
in
writing by each Rating Agency; and
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(vii)
any money market funds the collateral of which consists of obligations
fully guaranteed by the United States of America or any agency
or
instru-ment-al-ity of the United States of America the obligations
of
which are backed by the full faith and credit of the United States
of
America (which may include repurchase obligations secured by collateral
described in clause (i)) and other securities and which money market
funds
are rated in one of the two highest rating categories by each Rating
Agency.
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provided,
however,
that no
instrument or security shall be a Permitted Investment if such instrument
or
security evidences a right to receive only interest payments with respect
to the
ob-li-ga-tions underlying such instrument or if such security provides for
payment of both principal and interest with a yield to matur-ity in excess
of
120% of the yield to maturity at par or if such investment or security is
purchased at a price greater than par.
Person:
Any
individual, corporation, partnership, joint venture, association, joint-stock
company, limited liability company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Prepayment
Interest Shortfall:
With
respect to any Remittance Date, for each Mortgage Loan that was the subject
of a
Principal Prepayment during the related Prepayment Period, an amount equal
to
the excess of one month’s interest at the applicable Mortgage Loan Remittance
Rate on the amount of such Principal Prepayment over the amount of interest
(adjusted to the Mortgage Loan Remittance Rate) actually paid by the related
Mortgagor with respect to such Prepayment Period.
Prepayment
Period: With
respect to any Remittance Date, the calendar month preceding the month in
which
such Remittance Date occurs.
12
Primary
Mortgage Insurance Policy:
Each
primary policy of mortgage insurance represented to be in effect pursuant
to
Section 3.02(hh), or any replacement policy therefor obtained by the Servicer
pursuant to Section 4.08.
Prime
Rate:
The
prime rate announced to be in effect from time to time as published as the
average rate in the Wall Street Journal (Northeast Edition).
Principal
Prepayment:
Any
payment or other recovery of principal on a Mortgage Loan full or partial
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.
Purchase
Price:
As
defined in Section 2.02.
Purchaser:
Greenwich Capital Financial Products, Inc., and its successors in interest
and
assigns.
Qualified
Appraiser:
An
appraiser, duly appointed by the Servicer, 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 such appraiser and the appraisal made by such appraiser
both
satisfy the requirements of Title XI of FIRREA and the regulations promulgated
thereunder and the requirements of ▇▇▇▇▇▇ ▇▇▇, all as in effect on the date
the
Mortgage Loan was originated.
Qualified
Insurer:
An
insurance company duly qualified as such under the laws of the states in
which
the Mortgaged Properties are located, duly authorized and licensed in such
states to transact the applicable insurance business and to write the insurance
provided, approved as an insurer by ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac.
Rating
Agency:
Standard & Poor's, Fitch, Inc. or, in the event that some or all of the
ownership of the Mortgage Loans is evidenced by mortgage-backed securities,
the
nationally recognized rating agencies issuing ratings with respect to such
securities, if any.
Refinanced
Mortgage Loan:
A
Mortgage Loan which was made to a Mortgagor who owned the Mortgaged Property
prior to the origination of such Mortgage Loan and the proceeds of which
were
used in whole or part to satisfy an existing mortgage.
REMIC:
A "real
estate mortgage investment conduit," as such term is defined in Section 860D
of
the Code.
REMIC
Provisions:
The
provisions of the federal income tax law relating to REMICs, which appear
at
Sections 860A through 860G of the Code, and the related provisions and
regulations promulgated thereunder, as the foregoing may be in effect from
time
to time.
13
Remittance
Date:
The
23rd
day of
any month, beginning with the First Remittance Date, or if such 23rd
day is
not a Business Day, the first Business Day immediately preceding such
23rd
day.
REO
Disposition:
The
final sale by the Servicer of any REO Property.
REO
Disposition Proceeds:
Amounts
received by the Servicer in connection with a related REO
Disposition.
REO
Property:
A
Mortgaged Property acquired by the Servicer on behalf of the Purchaser as
described in Section 4.13.
Repurchase
Price:
With
respect to any Mortgage Loan, a price equal to (A) the product of the percentage
of par as stated in the Confirmation multiplied by the Stated Principal Balance
of such Mortgage Loan on the repurchase date, plus (B) interest on such
outstanding principal balance at the Mortgage Loan Remittance Rate from the
last
date through which interest has been paid and distributed to the Purchaser
to
the end of the month of repurchase, plus (C) third party expenses incurred
in
connection with the transfer of the Mortgage Loan being repurchased, plus
(D)
any costs, expenses and/or damages that may be assessed to the Purchaser
due to
the Mortgage Loan being found to violate a predatory/abusive lending law;
less
amounts received or advanced in respect of such repurchased Mortgage Loan
which
are being held in the Custodial Account for distribution in the month of
repurchase.
SAIF:
The
Savings Association Insurance Fund, or any successor thereto.
Servicer:
Any
Person who is servicing the Mortgage Loans for the Company. Each Servicer
shall
meet the qualifications and requirements as set forth in this
Agreement.
Servicing
Advances:
All
customary, reasonable and necessary "out of pocket" costs and expenses
(including reasonable attorneys' fees and disbursements) incurred in the
performance by the Servicer 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, administrative or judicial proceedings,
or any legal work or advice specifically related to servicing the Mortgage
Loans, including but not limited to, foreclosures, bankruptcies, condemnations,
drug seizures, elections, foreclosures by subordinate or superior lienholders,
and other legal actions incidental to the servicing of the Mortgage Loans
(provided that such expenses are reasonable and that the Servicer specifies
the
Mortgage Loan(s) to which such expenses relate and, upon Purchaser’s request,
provides documentation supporting such expense (which documentation would
be
acceptable to ▇▇▇▇▇▇ ▇▇▇), and provided further that any such enforcement,
administrative or judicial proceeding does not arise out of a breach of any
representation, warranty or covenant of the Company hereunder), (c) the
management and liquidation of the Mortgaged Property if the Mortgaged Property
is acquired in full or partial satisfaction of the Mortgage, (d) taxes,
assessments, water rates, sewer rates and other charges which are or may
become
a lien upon the Mortgaged Property, and Primary Mortgage Insurance Policy
premiums and fire and hazard insurance coverage, (e) any expenses reasonably
sustained by the Servicer with respect to the liquidation of the Mortgaged
Property in accordance with the terms of this Agreement and (f) compliance
with
the obligations under Section 4.08.
14
Servicing
Agreement:
The
agreement between the Company and a Servicer for the servicing of the Mortgage
Loans, which agreement shall not be inconsistent with this
Agreement.
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 computed. The obligation
of
the Purchaser to pay the Servicing Fee is limited to, and the Servicing Fee
is
payable solely from, the interest portion of such Monthly Payment collected
by
the Servicer, or as otherwise provided under Section 4.05 and in accordance
with
the ▇▇▇▇▇▇ Mae Guide(s). Any fee payable to the Company for administrative
services related to any REO Property as described in Section 4.13 shall be
payable from Liquidation Proceeds of the related REO Property.
Servicing
Fee Rate:
As set
forth in the Term Sheet.
Servicing
File:
With
respect to each Mortgage Loan, the file retained by the Servicer consisting
of
originals of all documents in the Mortgage File which are not delivered to
the
Purchaser and copies of the Mortgage Loan Documents listed in Exhibit A,
the
originals of which are delivered to the Purchaser or its designee pursuant
to
Section 2.04.
Servicing
Officer:
Any
officer of the Servicer involved in, or responsible for, the administration
and
servicing of the Mortgage Loans whose name appears on a list of servicing
officers furnished by the Servicer to the Company and 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 as of any date of determination, (i) the principal balance
of
such 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 Mortgage
Loan representing payments or recoveries of principal or advances in lieu
thereof.
Term
Sheet:
A
supplemental agreement in the form attached hereto as Exhibit I which shall
be
executed and delivered by the Company and the Purchaser to provide for the
sale
and servicing pursuant to the terms of this Agreement and a Servicing Agreement
of the Mortgage Loans listed on Schedule I attached thereto, which supplemental
agreement shall contain certain specific information relating to such sale
of
such Mortgage Loans and may contain additional covenants relating to such
sale
of such Mortgage Loans.
15
ARTICLE
II
PURCHASE
OF MORTGAGE LOANS; SERVICING OF MORTGAGE LOANS;
RECORD
TITLE AND POSSESSION OF MORTGAGE FILES;
BOOKS
AND RECORDS; CUSTODIAL AGREEMENT;
DELIVERY
OF MORTGAGE LOAN DOCUMENTS
Section
2.01 Agreement
to Purchase.
The
Company agrees to sell and the Purchaser agrees to purchase the Mortgage
Loans
having an aggregate Stated Principal Balance on the related Cut-off Date
set
forth in the related Term Sheet in an amount as set forth in the Confirmation,
or in such other amount as agreed by the Purchaser and the Company as evidenced
by the actual aggregate Stated Principal Balance of the Mortgage Loans accepted
by the Purchaser on the related Closing Date, on a servicing retained basis.
The
Company shall deliver the related Mortgage Loan Schedule attached to the
related
Term Sheet for the Mortgage Loans to be purchased on the related Closing
Date to
the Purchaser at least two (2) Business Days prior to the related Closing
Date.
The Mortgage Loans shall be sold pursuant to this Agreement, and the related
Term Sheet shall be executed and delivered on the related Closing
Date.
Section
2.02 Purchase
Price.
The
Purchase Price for each Mortgage Loan shall be the percentage of par as stated
in the Confirmation (subject to adjustment as provided therein), multiplied
by
the Stated Principal Balance, as of the related Cut-off Date, of the Mortgage
Loan listed on the related Mortgage Loan Schedule attached to the related
Term
Sheet, after application of scheduled payments of principal due on or before
the
related Cut-off Date whether or not collected.
In
addition to the Purchase Price as described above, the Purchaser shall pay
to
the Company, at closing, accrued interest on the Stated Principal Balance
of
each Mortgage Loan as of the related Cut-off Date at the Mortgage Loan
Remittance Rate of each Mortgage Loan from the related Cut-off Date through
the
day prior to the related Closing Date, inclusive.
The
Purchase Price plus accrued interest as set forth in the preceding paragraph
shall be paid on the related Closing Date by wire transfer of immediately
available funds.
Purchaser
shall be entitled to (1) all scheduled principal due after the related Cut-off
Date, (2) all other recoveries of principal collected on or after the related
Cut-off Date (provided, however, that all scheduled payments of principal
due on
or before the related Cut-off Date and collected by Servicer on behalf of
the
Company or any successor to the Company after the related Cut-off Date shall
belong to the Company), and (3) all payments of interest on the Mortgage
Loans
net of applicable Servicing Fees (minus that portion of any such payment
which
is allocable to the period prior to the related Cut-off Date). The outstanding
principal balance of each Mortgage Loan as of the related Cut-off Date is
determined after application of payments of principal due on or before the
related Cut-off Date whether or not collected, together with any unscheduled
principal prepayments collected prior to the related Cut-off Date; provided,
however, that payments of scheduled principal and interest prepaid for a
Due
Date beyond the related Cut-off Date shall not be applied to the principal
balance as of the related Cut-off Date. Such prepaid amounts shall be the
property of the Purchaser. The Company shall cause any such prepaid amounts
to
be deposited into the Custodial Account, which account is established for
the
benefit of the Purchaser for subsequent remittance by the Company to the
Purchaser.
16
Section
2.03 Servicing
of Mortgage Loans.
Simultaneously
with the execution and delivery of each Term Sheet, the Company does hereby
agree to cause a Servicer to service the Mortgage Loans listed on the related
Mortgage Loan Schedule attached to the related Term Sheet subject to the
terms
of this Agreement and the related Term Sheet. The rights of the Purchaser
to
receive payments with respect to the related Mortgage Loans shall be as set
forth in this Agreement.
Section
2.04 Record
Title and Possession of Mortgage Files; Maintenance of Servicing
Files.
As
of the
related Closing Date, the Company sold, transferred, assigned, set over and
conveyed to the Purchaser, without recourse, and the Company hereby acknowledges
that the Purchaser has, but subject to the terms of this Agreement and the
related Term Sheet, all the right, title and interest of the Company in and
to
the Mortgage Loans. Company will deliver the Mortgage Files to the Custodian
designated by Purchaser, on or before the related Closing Date, at the expense
of the Company. The Company shall cause the Servicer to maintain a Servicing
File consisting of a copy of the contents of each Mortgage File and the
originals of the documents in each Mortgage File not delivered to the Purchaser.
The Servicing File shall contain all documents necessary to service the Mortgage
Loans. The possession of each Servicing File by the Servicer is at the will
of
the Purchaser, for the sole purpose of servicing the related Mortgage Loan,
and
such retention and possession by the Servicer is in a custodial capacity
only.
From the related Closing Date, the ownership of each Mortgage Loan, including
the Mortgage Note, the Mortgage, the contents of the related Mortgage File
and
all rights, benefits, proceeds and obligations arising therefrom or in
connection therewith, has been vested in 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 and all records or documents with respect
to
the Mortgage Loans prepared by or which come into the possession of the Company
shall be received and held by the Company in trust for the benefit of the
Purchaser as the owner of the Mortgage Loans. Any portion of the Mortgage
Files
retained by the Company or any Servicer shall be appropriately identified
in the
Company's or such Servicer’s computer system to clearly reflect the ownership of
the Mortgage Loans by the Purchaser. The Company shall release and shall
cause
each Servicer to release its custody of the contents of the Mortgage Files
only
in accordance with written instructions of the Purchaser, except when such
release is required as incidental to the Servicer’s servicing of the Mortgage
Loans or is in connection with a repurchase of any Mortgage Loan or Loans
with
respect thereto pursuant to this Agreement and the related Term Sheet, such
written instructions shall not be required.
17
Section
2.05 Books
and Records.
The
sale
of each Mortgage Loan has been 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 causing the Originator to maintain, and Originator shall
maintain, a complete set of books and records for the Mortgage Loans that
shall
be appropriately identified in the Originator’s computer system to clearly
reflect the ownership of the Mortgage Loan by the Purchaser. In particular,
the
Company shall maintain in its control, 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, as applicable,
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 of any condominium project as required by ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇
Mac,
and periodic inspection reports as required by Section 4.13. To the extent
that
original documents are not required for purposes of realization of Liquidation
Proceeds or Insurance Proceeds, documents maintained by the Company may be
in
the form of microfilm or microfiche.
The
Company shall cause the Servicer to maintain with respect to each Mortgage
Loan
and shall make available for inspection by any Purchaser or its designee
the
related Servicing File during the time the Purchaser retains ownership of
a
Mortgage Loan and thereafter in accordance with applicable laws and
regulations.
In
addition to the foregoing, Company shall provide or cause to be provided
to any
supervisory agents or examiners that regulate Purchaser, including but not
limited to, the OTS, the FDIC and other similar entities, access, during
normal
business hours, upon reasonable advance notice to Company and without charge
to
Company or such supervisory agents or examiners, to any documentation regarding
the Mortgage Loans that may be required by any applicable
regulator.
Section
2.06. Transfer
of Mortgage Loans.
The
Company shall cause the Servicer to keep at its servicing office books and
records in which, subject to such reasonable regulations as it may prescribe,
and the Company shall cause the Servicer to note transfers of Mortgage Loans.
No
transfer of a Mortgage Loan may be made unless such transfer is in compliance
with the terms hereof. For the purposes of this Agreement, the Company shall
be
under no obligation to deal with any Person with respect to this Agreement
or
any Mortgage Loan unless a notice of the transfer of such Mortgage Loan has
been
delivered to the Company in accordance with this Section 2.06 and the books
and
records of the Company 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 in either a Whole Loan Transfer or a Pass-Through
Transfer. In the event that the Purchaser sells and transfers one or more
of the
Mortgage Loans in a Pass-Through Transfer, Purchaser will use its best efforts
to cause the trustee to execute on behalf of the securitization trust an
original counterpart of the instrument of transfer in an Assignment and
Assumption of this Agreement substantially in the form of Exhibit D-1 hereto;
provided, the sale and transfer by Purchaser will be effective even if Purchaser
fails to cause the trustee to execute on behalf of the securitization trust
such
an agreement following Purchaser’s best efforts to do so. In the event that the
Purchaser sells and transfers one or more of the Mortgage Loans in a Whole
Loan
Transfer, the transferee will not be deemed to be a Purchaser hereunder binding
upon the Company unless such transferee shall agree in writing to be bound
by
the terms of this Agreement, and an original counterpart of the instrument
of
transfer in an Assignment and Assumption of this Agreement substantially
in the
form of Exhibit D-2 hereto executed by the transferee shall have been delivered
to the Company. The Purchaser also shall advise the Company of each transfer
of
any Mortgage Loan undertaken by the Purchaser, whether it be a Whole Loan
Transfer or a Pass-Through Transfer. Upon receipt of notice of a transfer,
the
Company shall, and shall cause each Servicer to ▇▇▇▇ its respective books
and
records to reflect the ownership of the Mortgage Loans of such assignee,
and the
previous Purchaser shall be released from its obligations hereunder with
respect
to the Mortgage Loans sold or transferred.
18
Section
2.07 Delivery
of Mortgage Loan Documents.
The
Company shall cause to be delivered and released to the Purchaser or its
designee the Mortgage Loan Documents in accordance with the terms of this
Agreement and the related Term Sheet. The documents enumerated as items (1),
(2), (3), (4), (5), (6), (7), (8) and (16) in Exhibit A hereto shall be
delivered to the Purchaser or its designee no later than three (3) Business
Days
prior to the related Closing Date pursuant to a bailee letter agreement.
All
other documents in Exhibit A hereto, together with all other documents executed
in connection with the Mortgage Loan that Company or any Servicer may have
in
its possession, shall be retained by the Company or such Servicer in trust
for
the Purchaser. If the Company cannot cause to be delivered the original recorded
Mortgage Loan Documents or the original policy of title insurance, including
riders and endorsements thereto, on the related Closing Date, the Company
shall,
promptly upon receipt thereof and in any case not later than 270 days from
the
related Closing Date, cause to be delivered such original documents, including
original recorded documents, to the Purchaser or its designee (unless the
Company is delayed in making such delivery by reason of the fact that such
documents shall not have been returned by the appropriate recording office).
If
delivery is not completed within 270 days solely due to delays in making
such
delivery by reason of the fact that such documents shall not have been returned
by the appropriate recording office, Company shall cause to be delivered
such
document to Purchaser, or its designee, within such time period as specified
in
a Company's Officer's Certificate. In the event that documents have not been
received by the date specified in the Company's Officer's Certificate, a
subsequent Company's Officer's Certificate shall be delivered by such date
specified in the prior Company's Officer's Certificate, stating a revised
date
for receipt of documentation. The procedure shall be repeated until the
documents have been received and delivered. If delivery is not completed
within
270 days solely due to delays in making such delivery by reason of the fact
that
such documents shall not have been returned by the appropriate recording
office,
the Company shall continue to use its best efforts to cause delivery as soon
as
possible thereafter, provided that if such documents are not delivered by
the
450th day from the date of the related Closing Date, the Company shall
repurchase the related Mortgage Loans at the Repurchase Price in accordance
with
Section 3.03 hereof.
19
The
Company shall bear responsibility for the payment of all initial recording
fees,
if any, for the assignments of mortgage and any other fees in connection
with
the transfer of all original documents to the Purchaser or its designee.
Company
shall cause the preparation, in recordable form, of all assignments of mortgage
necessary to assign the Mortgage Loans to Purchaser, or its designee and
shall
deliver said assignments to Purchaser. Company shall be responsible for
recording the initial assignments of mortgage promptly following receipt
of
Purchaser’s written request therefor.
Company
shall provide an original or duplicate original (including a digitally imaged
version of the original) of the title insurance policy to Purchaser or its
designee within ninety (90) days of the receipt of the recorded documents
(required for issuance of such policy) from the applicable recording
office.
Any
review by the Purchaser, or its designee, of the Mortgage Files shall in
no way
alter or reduce the Company's obligations hereunder.
If
the
Purchaser or its designee discovers any defect with respect to a Mortgage
File,
the Purchaser shall, or shall cause its designee to, give written specification
of such defect to the Company which may be given in the exception report
or the
certification delivered pursuant to this Section 2.07, or otherwise in writing
and the Company shall cure or repurchase such Mortgage Loan in accordance
with
Section 3.03.
The
Company shall cause to be forwarded to the Purchaser, or its designee, 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 cause
to
be provided to the Purchaser, or its designee, a certified true copy of any
such
document submitted for recordation within one week of its execution, and
shall
provide the original of any document submitted for recordation or a copy
of such
document certified by the appropriate public recording office to be a true
and
complete copy of the original within sixty (60) days of its submission for
recordation.
From
time
to time the Company may have a need for Mortgage Loan Documents to be released
from Purchaser, or its designee. Purchaser shall, or shall cause its designee,
upon the written request of the Company, within ten (10) Business Days, deliver
to the Company or Servicer, as specified in the written request, any requested
documentation previously delivered to Purchaser as part of the Mortgage File,
provided that such documentation is promptly returned to Purchaser, or its
designee, when the Company or Servicer no longer requires possession of the
document, and provided that during the time that any such documentation is
held
by the Company or Servicer, such possession is in trust for the benefit of
Purchaser. Company shall indemnify Purchaser, and its designee, from and
against
any and all losses, claims, damages, penalties, fines, forfeitures, costs
and
expenses (including court costs and reasonable attorney's fees) resulting
from
or related to the loss, damage, or misplacement of any documentation delivered
to Company or Servicer pursuant to this paragraph.
20
Section
2.08 Quality
Control Procedures.
The
Company warrants and represents that the Originator has an internal quality
control program that verifies, on a regular basis, the existence and accuracy
of
the legal documents, credit documents, property appraisals, and underwriting
decisions. The program is capable of evaluating and monitoring the overall
quality of Originator’s loan production and servicing activities. The program is
designed to ensure that the Mortgage Loans are originated and serviced in
accordance with prudent mortgage banking practices and accounting principles;
guard against dishonest, fraudulent, or negligent acts; and guard against
errors
and omissions by officers, employees, or other authorized persons.
Section
2.09
Near-term Principal Prepayments; Near Term Payment Defaults
In
the
event any complete Principal Prepayment is made by a Mortgagor on or prior
to
three months after the related Closing Date, the Company shall remit to the
Purchaser an amount equal to the excess, if any, of the Purchase Price
Percentage over par multiplied by the amount of such Principal Prepayment.
Such
remittance shall be made by the Company to Purchaser no later than the third
Business Day following receipt of such Principal Prepayment by the
Servicer.
In
the
event any of the first three (3) scheduled Monthly Payments which are due
under
any Mortgage Loan after the related Cut-off Date are not made during the
month
in which such Monthly Payments are due and Purchaser provides Company with
written notice within five (5) months of the related Closing Date, then not
later than five (5) Business Days after notice to the Company by Purchaser
(and
at Purchaser’s sole option), the Company shall repurchase such Mortgage Loan
from the Purchaser pursuant to the repurchase provisions contained in this
Subsection 3.03.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF
THE
COMPANY; REPURCHASE; REVIEW OF MORTGAGE LOANS
Section
3.01 Representations
and Warranties of the Company.
The
Company represents, warrants and covenants to the Purchaser that, as of the
related Closing Date or as of such date specifically provided
herein:
(a) The
Company is a corporation, duly organized, validly existing and in good standing
under the laws of the State of Kansas and has all licenses necessary to carry
out its business as now being conducted, and is licensed and qualified to
transact business in and is in good standing under the laws of each state
in
which any Mortgaged Property is located or is otherwise exempt under applicable
law from such licensing or qualification or is otherwise not required under
applicable law to effect such licensing or qualification and no demand for
such
licensing or qualification has been made upon such Company by any such state,
and in any event such Company is in compliance with the laws of any such
state
to the extent necessary to ensure the enforceability of each Mortgage Loan
and
the servicing of the Mortgage Loans in accordance with the terms of this
Agreement;
21
(b)
The
Company has the full power and authority and legal right to hold, transfer
and
convey each Mortgage Loan, to sell each Mortgage Loan and to execute, deliver
and perform, and to enter into and consummate all transactions contemplated
by
this Agreement and the related Term Sheet and to conduct its business as
presently conducted, has duly authorized the execution, delivery and performance
of this Agreement and the related Term Sheet and any agreements contemplated
hereby, has duly executed and delivered this Agreement and the related Term
Sheet, and any agreements contemplated hereby, and this Agreement and the
related Term Sheet and each Assignment to the Purchaser and any agreements
contemplated hereby, constitutes a legal, valid and binding obligation of
the
Company, enforceable against it in accordance with its terms, subject to
principles of equity, bankruptcy, insolvency and other laws of general
application affecting the rights of creditors, and all requisite corporate
action has been taken by the Company to make this Agreement and the related
Term
Sheet and all agreements contemplated hereby valid and binding upon the Company
in accordance with their terms;
(c)
Neither the execution and delivery of this Agreement and the related Term
Sheet,
nor the purchase of the Mortgage Loans by the Company, the sale of the Mortgage
Loans to the Purchaser, the consummation of the transactions contemplated
hereby, or the fulfillment of or compliance with the terms and conditions
of
this Agreement and the related Term Sheet will conflict with any of the terms,
conditions or provisions of the Company's charter or by-laws or materially
conflict with or result in a material breach of any of the terms, conditions
or
provisions of 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 an acceleration under any of the foregoing, or result in the material
violation of any law, rule, regulation, order, judgment or decree to which
the
Company or its properties are subject, or impair the ability of the Purchaser
to
realize on the Mortgage Loans.
(d)
There
is no litigation, suit, proceeding or investigation pending or, to the best
of
Company’s knowledge, threatened, or any order or decree outstanding, with
respect to the Company which, either in any one instance or in the aggregate,
is
reasonably likely to have a material adverse effect on the sale of the Mortgage
Loans, the execution, delivery, performance or enforceability of this Agreement
and the related Term Sheet, or which is reasonably likely to have a material
adverse effect on the financial condition of the Company.
(e)
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 related Term Sheet,
or
the sale of the Mortgage Loans and delivery of the Mortgage Files to the
Purchaser or the consummation of the transactions contemplated by this Agreement
or the related Term Sheet, except for consents, approvals, authorizations
and
orders which have been obtained;
22
(f)
The
consummation of the transactions contemplated by this Agreement or the related
Term Sheet is in the ordinary course of business of the Company, and the
transfer, assignment and conveyance of the Mortgage Notes and the Mortgages
by
the Company pursuant to this Agreement or the related Term Sheet are not
subject
to bulk transfer or any similar statutory provisions in effect in any applicable
jurisdiction;
(g)
The
origination practices used by the Originator with respect to each Mortgage
Note
and Mortgage have been legal and in accordance with applicable laws and
regulations and the Mortgage Loan Documents, and in all material respects
proper
and prudent in the mortgage origination business. The servicing practices
used
by the Servicer with respect to each Mortgage Note and Mortgage have been
legal
and in accordance with applicable laws and regulations and the Mortgage Loan
Documents, and in all material respects proper and prudent in the mortgage
servicing business. Each Mortgage Loan has been serviced in all material
respects with Accepted Servicing Practices. With respect to escrow deposits
and
payments that the Servicer, on behalf of an investor, is entitled to collect,
all such payments are in the possession of, or under the control of, the
Servicer, and there exist no deficiencies in connection therewith for which
customary arrangements for repayment thereof have not been made. All escrow
payments have been collected in full compliance with state and federal law
and
the provisions of the related Mortgage Note and Mortgage. As to any Mortgage
Loan that is the subject of an escrow, escrow of funds is not prohibited
by
applicable law and has been established in an amount sufficient to pay for
every
escrowed item that remains unpaid and has been assessed but is not yet due
and
payable. No escrow deposits or other charges or payments due under the Mortgage
Note have been capitalized under any Mortgage or the related Mortgage
Note;
(h)
The
Company used no selection procedures that identified the Mortgage Loans as
being
less desirable or valuable than other comparable mortgage loans in the Company's
portfolio at the related Cut-off Date;
(i) The
Company will treat the sale of the Mortgage Loans to the Purchaser as a sale
for
reporting and accounting purposes and, to the extent appropriate, for federal
income tax purposes;
(j) Servicer
is an approved servicer of residential mortgage loans for ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇
Mac or HUD, with such facilities, procedures and personnel necessary for
the
sound servicing of such mortgage loans. The Servicer is duly qualified,
licensed, registered and otherwise authorized under all applicable federal,
state and local laws, and regulations, if applicable, meets the minimum capital
requirements set forth by the OCC, and is in good standing to service mortgage
loans for ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac and no event has occurred which would
make
Servicer unable to comply with said eligibility requirements or which would
require notification to either ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac;
(k) The
Company does not believe, nor does it have any cause or reason to believe,
that
it cannot perform each and every of its covenants contained in this Agreement
or
the related Term Sheet. 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 with the intent to hinder, delay or defraud any of
the
Company's creditors;
23
(l) No
statement, tape, diskette, form, report or other document prepared by, or
on
behalf of, Company pursuant to this Agreement or the related Term Sheet or
in
connection with the transactions contemplated hereby, contains or will contain
any statement that is or will be inaccurate or misleading in any material
respect;
(m)
The
Company acknowledges and agrees that the Servicing Fee represents reasonable
compensation for the Company causing the Servicer to perform such services
and
that the entire Servicing Fee shall be treated by the Company, for accounting
and tax purposes, as compensation for causing Servicer to service and administer
the Mortgage Loans pursuant to this Agreement. In the opinion of Company,
the
consideration received by Company upon the sale of the Mortgage Loans to
Purchaser under this Agreement and the related Term Sheet constitutes fair
consideration for the Mortgage Loans under current market conditions.
(n)
Company
has delivered to the Purchaser financial statements for its last two complete
fiscal years. All such financial information fairly presents the pertinent
results of operations and financial position for the period identified and
has
been prepared in accordance with GAAP consistently applied throughout the
periods involved, except as set forth in the notes thereto. There has been
no
change in the business, operations, financial condition, properties or assets
of
the Company since the date of the Company’s financial information that would
have a material adverse effect on its ability to perform its obligations
under
this Agreement;
(o)
If
the Company has dealt with any third party broker, investment banker, agent
or
other person entitled to any commission or compensation in connection with
the
sale of the Mortgage Loans, then the Company is solely responsible for payment
of the commission or compensation. The Company will indemnify the Purchaser
if
any Person makes claim against the Purchaser for payment of any commission
or
compensation in connection with the sale of Mortgage Loans as a result of
that
Person’s dealings with the Company.
Section
3.02 Representations
and Warranties as to Individual Mortgage Loans.
References
in this Section to percentages of Mortgage Loans refer in each case to the
percentage of the aggregate Stated Principal Balance of the Mortgage Loans
as of
the related Cut-off Date, based on the outstanding Stated Principal Balances
of
the Mortgage Loans as of the related Cut-off Date, and giving effect to
scheduled Monthly Payments due on or prior to the related Cut-off Date, whether
or not received. References to percentages of Mortgaged Properties refer,
in
each case, to the percentages of expected aggregate Stated Principal Balances
of
the related Mortgage Loans (determined as described in the preceding sentence).
The Company hereby represents and warrants to the Purchaser, as to each Mortgage
Loan, as of the related Closing Date as follows:
24
(a)
The
information set forth in the Mortgage Loan Schedule attached to the related
Term
Sheet is true, complete and correct in all material respects as of the related
Cut-Off Date;
(b) The
Mortgage creates a valid, subsisting and enforceable first lien or a first
priority ownership interest in an estate in fee simple in real property securing
the related Mortgage Note subject to principles of equity, bankruptcy,
insolvency and other laws of general application affecting the rights of
creditors;
(c)
All
payments due prior to the related Cut-off Date for such Mortgage Loan have
been
made as of the related Closing Date; the Mortgage Loan has not been dishonored;
there are no material defaults under the terms of the Mortgage Loan; the
Servicer has not advanced its own funds, or induced, solicited or knowingly
received any advance of funds from a party other than the owner of the Mortgaged
Property subject to the Mortgage, directly or indirectly, for the payment
of any
amount required by the Mortgage Loan. As of the related Closing Date, all
of the
Mortgage Loans will have an actual Interest Paid to Date of their related
Cut-off Date (or later) and will be due for the scheduled monthly payment
next
succeeding the Cut-off Date (or later), as evidenced by a posting to Servicer’s
servicing collection system. No payment under any Mortgage Loan is delinquent
as
of the related Closing Date nor has any scheduled payment been delinquent
at any
time during the twelve (12) months prior to the month of the related Closing
Date. For purposes of this paragraph, a Mortgage Loan will be deemed delinquent
if any payment due thereunder was not paid by the Mortgagor in the month
such
payment was due;
(d)
There
are no defaults by Servicer in complying with the terms of the Mortgage,
and all
taxes, governmental assessments, insurance premiums, water, sewer and municipal
charges, leasehold payments or ground rents which previously became due and
owing have been paid, or escrow funds have been established in an amount
sufficient to pay for every such escrowed item which remains unpaid and which
has been assessed but is not yet due and payable;
(e)
The
terms of the Mortgage Note and the Mortgage have not been impaired, waived,
altered or modified in any respect, except by written instruments which have
been recorded to the extent any such recordation is required by law, or,
necessary to protect the interest of the Purchaser. No instrument of waiver,
alteration or modification has been executed except in connection with a
modification agreement and which modification agreement is part of the Mortgage
File and the terms of which are reflected in the related Mortgage Loan Schedule,
and no Mortgagor has been released, in whole or in part, from the terms thereof
except in connection with an assumption agreement and which assumption agreement
is part of the Mortgage File and the terms of which are reflected in the
related
Mortgage Loan Schedule; the substance of any such waiver, alteration or
modification has been approved by the issuer of any related Primary Mortgage
Insurance Policy, Lender Primary Mortgage Insurance Policy and title insurance
policy, to the extent required by the related policies;
(f)
The
Mortgage Note and the Mortgage are 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 the Mortgage Note
or
Mortgage unenforceable, in whole or in part, or subject to any right of
rescission, set-off, counterclaim or defense, including the defense of usury,
and no such right of rescission, set-off, counterclaim or defense has been
asserted with respect thereto; and as of the related Closing Date the Mortgagor
was not a debtor in any state or federal bankruptcy or insolvency
proceeding;
25
(g)
All
buildings or other customarily insured improvements upon the Mortgaged Property
are insured by an insurer acceptable under the ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac
Guide,
against loss by fire, hazards of extended coverage and such other hazards
as are
provided for in the ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac Guide, as well as all additional
requirements set forth in Section 4.10 of this Agreement. All such standard
hazard policies are in full force and effect and contain a standard mortgagee
clause naming the Company and its successors in interest and assigns as loss
payee and such clause is still in effect and all premiums due thereon have
been
paid. If required by the Flood Disaster Protection Act of 1973, as amended,
the
Mortgage Loan is covered by a flood insurance policy meeting the requirements
of
the current guidelines of the Federal Insurance Administration which policy
conforms to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac requirements, as well as all additional
requirements set forth in Section 4.10 of this Agreement. Such policy was
issued
by an insurer acceptable under ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac guidelines. The
Mortgage obligates the Mortgagor thereunder to maintain all such insurance
at
the Mortgagor's cost and expense, and on the Mortgagor's failure to do so,
authorizes the holder of the Mortgage to maintain such insurance at the
Mortgagor's cost and expense and to seek reimbursement therefor from the
Mortgagor. Neither the Company (nor any prior originator or servicer of any
of
the Mortgage Loans) nor any Mortgagor has engaged in any act or omission
which
has impaired or would impair the coverage of any such policy, the benefits
of
the endorsement provided for herein, or the validity and binding effect of
either;
(h)
Any
and all requirements of any federal, state or local law including, without
limitation, usury, truth-in-lending, predatory, abusive lending, real estate
settlement procedures, consumer credit protection, equal credit opportunity
or
disclosure laws applicable to the Mortgage Loan have been complied with in
all
material respects; none of the Mortgage Loans are (a) subject to the Home
Ownership and Equity Protection Act of 1994, (b) classified as “high cost”,
“threshold”, “predatory”, “high risk home” or “covered” loan under any other
applicable state, federal or local law, or (c) similarly classified using
different terminology under a law imposing heightened regulatory scrutiny
or
additional legal liability for residential mortgage loans having high interest
rates, points and/or fees; the Servicer maintains, and shall maintain, evidence
of such compliance as required by applicable law or regulation and Company
shall
make such evidence available for inspection at the Servicer’s office during
normal business hours upon reasonable advance notice;
(i)
The
Mortgage has not been satisfied in whole or canceled or subordinated, in
whole
or in part, or rescinded, and the Mortgaged Property has not been released
from
the lien of the Mortgage, in whole or in part nor has any instrument been
executed that would effect any such release, cancellation, subordination
or
rescission. The Company has not waived the performance by the Mortgagor of
any
action, if the Mortgagor’s failure to perform such action would cause the
Mortgage Loan to be in default, nor has the Company waived any default resulting
from any action or inaction by the Mortgagor;
26
(j) The
Mortgage is a valid, subsisting, enforceable and perfected 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 affixed to such buildings, and all additions, alterations and
replacements made at any time with respect to the foregoing securing the
Mortgage Note's original principal balance subject to principles of equity,
bankruptcy, insolvency and other laws of general application affecting the
rights of creditors. The Mortgage and the Mortgage Note do not contain any
evidence of any security interest or other interest or right thereto. Such
lien
is free and clear of all adverse claims, liens and encumbrances having priority
over the first lien of the Mortgage subject only to (1) the lien of
non-delinquent 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 which
are
acceptable to mortgage lending institutions generally and either (A) which
are
referred to in the lender’s title insurance policy delivered to the originator
or otherwise considered in the appraisal made for the originator of the Mortgage
Loan, or (B) which do not adversely affect the residential use or Appraised
Value of the Mortgaged Property as set forth in such appraisal, and (3) other
matters to which like properties are commonly subject which do not individually
or in the aggregate materially interfere with the benefits of the security
intended to be provided by the Mortgage or the use, enjoyment, value or
marketability of the related Mortgaged Property. Any security agreement,
chattel
mortgage or equivalent document related to and delivered in connection with
the
Mortgage Loan establishes and creates a valid, subsisting, enforceable and
perfected first lien and first priority security interest on the property
described therein, and the Company has the full right to sell and assign
the
same to the Purchaser;
(k)
The
Mortgage Note and the related Mortgage are original and genuine and each
is the
legal, valid and binding obligation of the maker thereof, enforceable in
all
respects in accordance with its terms subject to principles of equity,
bankruptcy, insolvency and other laws of general application affecting the
rights of creditors, and the Company has taken all action necessary to transfer
such rights of enforceability to the Purchaser. All parties to the Mortgage
Note
and the Mortgage had the legal capacity to enter into the Mortgage Loan and
to
execute and deliver the Mortgage Note and the Mortgage. The Mortgage Loan
Documents are on forms acceptable to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac. The Mortgage
Note and the Mortgage have been duly and properly executed by such parties.
No
fraud, error, omission, misrepresentation, negligence or similar occurrence
with
respect to a Mortgage Loan has taken place on the part of Company or the
Mortgagor, or on the part of any other party involved in the origination
or
servicing of the Mortgage Loan. The proceeds of the Mortgage Loan have been
fully disbursed and there is no requirement for future advances thereunder,
and
any and all requirements as to completion of any on-site or off-site
improvements and as to disbursements of any escrow funds therefor have been
complied with. All costs, fees and expenses incurred in making or closing
the
Mortgage Loan and the recording of the Mortgage were paid, and the Mortgagor
is
not entitled to any refund of any amounts paid or due under the Mortgage
Note or
Mortgage;
27
(l)
The
Company is the sole owner and holder of the Mortgage Loan and the indebtedness
evidenced by the Mortgage Note. Upon the sale of the Mortgage Loan to the
Purchaser, either the Company or the Servicer will retain the Mortgage File
or
any part thereof with respect thereto not delivered to the Purchaser or the
Purchaser’s designee in trust only for the purpose of servicing the Mortgage
Loan. Immediately prior to the transfer and assignment to the Purchaser,
the
Mortgage Loan, including the Mortgage Note and the Mortgage, were not subject
to
an assignment, sale or pledge to any person other than Purchaser, and the
Company had good and marketable title to and was the sole owner thereof and
had
full right to transfer and sell the Mortgage Loan to the Purchaser free and
clear of any encumbrance, equity, lien, pledge, charge, claim or security
interest (subject to the exceptions contained in (j)(1), (2) and (3) above)
and
has the full right and authority subject to no interest or participation
of, or
agreement with, any other party, to sell and assign the Mortgage Loan pursuant
to this Agreement and following the sale of the Mortgage Loan, the Purchaser
will own such Mortgage Loan free and clear of any encumbrance, equity,
participation interest, lien, pledge, charge, claim or security interest
(subject to the exceptions contained in (j)(1), (2) and (3) above). The Company
intends to relinquish all rights to possess, control and monitor the Mortgage
Loan, except for the purposes of causing Servicer to service the Mortgage
Loan
as set forth in this Agreement. After the related Closing Date, the Company
will
not have any right to modify or alter the terms of the sale of the Mortgage
Loan
and the Company will not have any obligation or right to repurchase the Mortgage
Loan or substitute another Mortgage Loan, except as provided in this Agreement,
or as otherwise agreed to by the Company and the Purchaser;
(m)
Each
Mortgage Loan is covered by an ALTA lender's title insurance policy or other
generally acceptable form of policy or insurance acceptable to ▇▇▇▇▇▇ ▇▇▇
or
▇▇▇▇▇▇▇ Mac (including adjustable rate endorsements), 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 (subject to
the
exceptions contained in (j)(1), (2) and (3) above) the Company, its successors
and assigns, as to the first priority lien of the Mortgage in the original
principal amount of the Mortgage Loan and against any loss by reason of the
invalidity or unenforceability of the lien resulting from the provisions
of the
Mortgage providing for adjustment in the Mortgage Interest Rate and Monthly
Payment. Additionally, such lender’s title insurance policy affirmatively
insures ingress and egress to and from the Mortgaged Property and against
encroachments by or upon the Mortgaged Property or any interest therein.
Where
required by state law or regulation, the Mortgagor has been given the
opportunity to choose the carrier of the required mortgage title insurance.
The
Company, its successors and assigns, is the sole insured of such lender's
title
insurance policy, such title insurance policy has been duly and validly endorsed
to the Purchaser or the assignment to the Purchaser of the Company's interest
therein does not require the consent of or notification to the insurer and
such
lender's title insurance policy is in full force and effect and will be in
full
force and effect upon the consummation of the transactions contemplated by
this
Agreement. No claims have been made under such lender's title insurance policy,
and no prior holder or servicer of the related Mortgage, including the Company,
nor any Mortgagor, has done, by act or omission, anything which would impair
the
coverage of such lender's title insurance policy;
(n)
There
is no default, breach, violation or event of acceleration existing under
the
Mortgage or the related 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 permitting acceleration;
and
neither the Company, nor any prior mortgagee has waived any default, breach,
violation or event permitting acceleration;
28
(o)
There
are no mechanics' or similar liens or claims which have been filed for work,
labor or material (and the Company is not aware of any rights that are
outstanding that under law could give rise to such liens) affecting the related
Mortgaged Property which are or may be liens prior to or equal to the lien
of
the related Mortgage;
(p)
All
improvements subject to the Mortgage which were considered in determining
the
appraised value of the Mortgaged Property lie wholly within the boundaries
and
building restriction lines of the Mortgaged Property (and wholly within the
project with respect to a condominium unit) and no improvements on adjoining
properties encroach upon the Mortgaged Property except those which are insured
against by the title insurance policy referred to in clause (m) above and
all
improvements on the property comply with all applicable zoning and subdivision
laws and ordinances;
(q)
Each
Mortgage Loan was originated in conformity with the underwriting guidelines
as
described in Exhibit H hereto. The Mortgage Loan bears interest at an adjustable
rate (if applicable) as set forth in the related Mortgage Loan Schedule,
and
Monthly Payments under the Mortgage Note are due and payable on the first
day of
each month. The Mortgage contains the usual and enforceable provisions of
the
Originator at the time of origination for the acceleration of the payment
of the
unpaid principal amount of the Mortgage Loan if the related Mortgaged Property
is sold without the prior consent of the mortgagee thereunder;
(r)
The
Mortgaged Property is not subject to any material damage. At origination
of the
Mortgage Loan there was not, since origination of the Mortgage Loan there
has
not been, and there currently is no proceeding pending for the total or partial
condemnation of the Mortgaged Property. The Company has not received
notification that any such proceedings are scheduled to commence at a future
date;
(s)
The
related Mortgage contains customary and enforceable provisions such as to
render
the rights and remedies of the holder thereof adequate for the realization
against the Mortgaged Property of the benefits of the security provided thereby,
including, (1) in the case of a Mortgage designated as a deed of trust, by
trustee's sale, and (2) otherwise by judicial foreclosure. There is no homestead
or other exemption available to the Mortgagor which would interfere with
the
right to sell the Mortgaged Property at a trustee's sale or the right to
foreclose the Mortgage;
(t)
If
the Mortgage constitutes a deed of trust, a trustee, authorized and duly
qualified if required under applicable law to act as such, has been properly
designated and currently so serves and is named in the Mortgage, and no fees
or
expenses, except as may be required by local law, are or will become payable
by
the Purchaser to the trustee under the deed of trust, except in connection
with
a trustee's sale or attempted sale after default by the Mortgagor;
29
(u)
The
Mortgage File contains an appraisal of the related Mortgaged Property signed
prior to the final approval of the mortgage loan application by a Qualified
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
appraiser both satisfy the requirements of ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac and
Title
XI of the Federal Institutions Reform, Recovery, and Enforcement Act of 1989
and
the regulations promulgated thereunder, all as in effect on the date the
Mortgage Loan was originated. The appraisal is in a form acceptable to ▇▇▇▇▇▇
Mae or ▇▇▇▇▇▇▇ Mac;
(v)
All
parties which have had any interest in the Mortgage, whether as mortgagee,
assignee, pledgee or otherwise, are (or, during the period in which they
held
and disposed of such interest, were) (A) in compliance with any and all
applicable licensing requirements of the laws of the state wherein the Mortgaged
Property is located, and (B) (1) organized under the laws of such state,
or (2)
qualified to do business in such state, or (3) federal savings and loan
associations or national banks or a Federal Home Loan Bank or savings bank
or
federally chartered credit union or state chartered credit union having
principal offices in such state, or (4) not doing business in such
state;
(w)
The
related Mortgage Note is not and has not been secured by any collateral except
the lien of the corresponding Mortgage and the security interest of any
applicable security agreement or chattel mortgage referred to above and such
collateral does not serve as security for any other obligation;
(x)
The
Mortgagor has received and has executed, where applicable, all disclosure
materials required by applicable law with respect to the making of such mortgage
loans;
(y)
No
Mortgage Loan is subject to a buydown agreement or contains any buydown
provision;
(z)
The
Mortgagor is not in bankruptcy and, the Mortgagor is not insolvent and the
Company has no knowledge of any circumstances or conditions with respect
to the
Mortgage, the Mortgaged Property, the Mortgagor or the Mortgagor's credit
standing that could reasonably be expected to cause investors to regard the
Mortgage Loan as an unacceptable investment, cause the Mortgage Loan to become
delinquent, or materially adversely affect the value or marketability of
the
Mortgage Loan;
(aa)
Each
Mortgage Loan bears interest based upon a thirty (30) day month and a three
hundred and sixty (360) day year. The Mortgage Loans have an original term
to
maturity of not more than thirty (30) years, with interest payable in arrears
on
the first day of each month. 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 Margin; provided, that the Mortgage
Interest Rate, on each applicable Adjustment Date, will not increase by more
than the Initial Rate Cap or Periodic Rate Cap, as applicable. Over the term
of
each adjustable rate Mortgage Loan, the Mortgage Interest Rate will not exceed
such Mortgage Loan's Lifetime Rate Cap. None of the Mortgage Loans are
“interest-only” Mortgage Loans or “negative amortization” Mortgage Loans. With
respect to each adjustable rate Mortgage Loan, each ▇▇▇▇-▇▇▇▇ Note requires
a
monthly payment which is suffi-cient (a) during the period prior to the first
adjust-ment to the Mortgage Interest Rate, to fully amortize the original
principal balance over the original term thereof and to pay interest at the
related Mortgage Interest Rate, and (b) during the period following each
Adjust-ment Date, 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
adjustable rate Mortgage Loan, the Mortgage Note provides that when the Mortgage
Interest Rate changes on an Adjustment Date, the then outstanding principal
balance will be reamortized over the remaining life of the Mortgage Loan.
No
Mortgage Loan contains terms or provi-sions which would result in negative
amortization. None of the Mortgage Loans contain a conversion feature which
would cause the Mortgage Loan interest rate to convert to a fixed interest
rate.
None of the Mortgage Loans are considered agricultural loans;
30
(bb)
No
Mortgagor was required to purchase any credit life, disability, accident
or
health insurance product as a condition of obtaining the extension of credit.
No
proceeds from any Mortgage Loan were used to purchase single premium credit
insurance policies as part of the origination of, or as a condition to closing,
such Mortgage Loans.
(cc)
(INTENTIONALLY LEFT BLANK)
(dd)
(INTENTIONALLY LEFT BLANK)
(ee)
(INTENTIONALLY LEFT BLANK)
(ff)
(INTENTIONALLY LEFT BLANK)
(gg)
(INTENTIONALLY LEFT BLANK)
(hh) Any
Mortgage Loan with an LTV at origination over 80.00%, is insured as to payment
defaults by a Primary Mortgage Insurance Policy issued by a Qualified Insurer,
and such Primary Mortgage Insurance Policy shall be issued in accordance
with
the ▇▇▇▇▇▇ ▇▇▇ Guide. No Mortgage Loan has an LTV over 95%. All provisions
of
such Primary Mortgage Insurance Policy have been and are being complied with,
such policy is in full force and effect, and all premiums due thereunder
have
been paid. No Mortgage Loan requires payment of such premiums, in whole or
in
part, by the Purchaser. No action, inaction, or event has occurred and no
state
of facts exists that has, or will result in the exclusion from, denial of,
or
defense to coverage. Any Mortgage Loan subject to a Primary Mortgage Insurance
Policy obligates the Mortgagor thereunder to maintain the Primary Mortgage
Insurance Policy, subject to state and federal law, and to pay all premiums
and
charges in connection therewith. No action has been taken or failed to be
taken,
on or prior to the Closing Date which has resulted or will result in an
exclusion from, denial of, or defense to coverage under any Primary Mortgage
Insurance Policy (including, without limitation, any exclusions, denials
or
defenses which would limit or reduce the availability of the timely payment
of
the full amount of the loss otherwise due thereunder to the insured) whether
arising out of actions, representations, errors, omissions, negligence, or
fraud
of the Company or the Mortgagor, or for any other reason under such coverage;
The mortgage interest rate for the Mortgage Loan as set forth on the related
Mortgage Loan Schedule is net of any such insurance premium. Any Mortgage
Loan
subject to a Lender Primary Mortgage Insurance Policy obligates the Company
to
maintain the Lender Primary Mortgage Insurance Policy and to pay all premiums
and charges in connection therewith;
31
(ii) The
Assignment is in recordable form and is acceptable for recording under the
laws
of the jurisdiction in which the Mortgaged Property is located;
(jj) None
of
the Mortgage Loans are secured by an interest in a leasehold estate that
expires
less than 1 year before the stated maturity date of the Mortgage Loan. The
Mortgaged Property is located in the state identified in the related Mortgage
Loan Schedule and consists of a single parcel of real property with a detached
single family residence erected thereon, or a townhouse, or a two-to four-family
dwelling, or an individual condominium unit in a condominium project, or
an
individual unit in a planned unit development or a de minimis planned unit
development, provided, however, that no residence or dwelling is a single
parcel
of real property with a manufactured home not affixed to a permanent foundation,
or a mobile home. Any
condominium unit or planned unit development conforms with the Company’s
underwriting guidelines. As
of the
date of origination, no portion of any Mortgaged Property is used for commercial
purposes, and since the Origination Date, no portion of any Mortgaged Property
has been, or currently is, used for commercial purposes;
(kk) Payments
on the Mortgage Loan commenced no more than sixty (60) days after the funds
were
disbursed in connection with the Mortgage Loan. The Mortgage Note is payable
on
the first day of each month in monthly installments of principal and interest,
which installments are subject to change due to the adjustments to the Mortgage
Interest Rate on each Adjustment Date, with interest calculated and payable
in
arrears. Other than a Balloon Mortgage Loan, each of the Mortgage Loans will
amortize fully by the stated maturity date, over an original term of not
more
than thirty years from commencement of amortization. With respect to each
Balloon Mortgage Loan, the Mortgage Note requires a monthly payment which
is
sufficient to fully amortize the original principal balance over the original
term thereof and to pay interest at the related Mortgage Interest Rate and
requires a final Monthly Payment substantially greater than the preceding
monthly payment which is sufficient to repay the remaining unpaid principal
balance of the Balloon Mortgage Loan as of the Due Date of such monthly
payment;
(ll) As
of the
Closing Date of the Mortgage Loan, the Mortgage Property was lawfully occupied
under applicable law, and 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;
32
(mm) There
is
no pending action or proceeding directly involving the Mortgaged Property
in
which compliance with any environmental law, rule or regulation is an issue;
there is no violation of any environmental law, rule or regulation with respect
to the Mortgaged Property; and the Company has not received any notice of
any
environmental hazard on the Mortgaged Property and nothing further remains
to be
done to satisfy in full all requirements of each such law, rule or regulation
constituting a prerequisite to use and enjoyment of said property;
(nn) 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;
(oo)
No
Mortgage Loan is a construction or rehabilitation Mortgage Loan or was made
to
facilitate the trade-in or exchange of a Mortgaged Property;
(pp) The
Mortgagor for each Mortgage Loan is a natural person;
(qq) None
of
the Mortgage Loans are Co-op Loans;
(rr)
With
respect to each Mortgage Loan that has a prepayment penalty feature, each
such
prepayment penalty is enforceable and will be enforced by the Servicer and
each
prepayment penalty is permitted pursuant to federal, state and local law.
No
Mortgage Loan will impose a prepayment penalty for a term in excess of three
years from the date such Mortgage Loan was originated. Except as otherwise
set
forth on the Mortgage Loan Schedule, with respect to each Mortgage Loan that
contains a prepayment penalty, such prepayment penalty is at least equal
to the
lesser of (A) the maximum amount permitted under applicable law and (B) six
months interest at the related Mortgage Interest Rate on the amount prepaid
in
excess of 20% of the original principal balance of such Mortgage
Loan;
(ss)
With
respect to each Mortgage Loan either (i) the fair market value of the Mortgaged
Property securing such Mortgage Loan was at least equal to 80 percent of
the
original principal balance of such Mortgage Loan at the time such Mortgage
Loan
was originated or (ii) (a) the Mortgage Loan is only secured by the Mortgage
Property and (b) substantially all of the proceeds of such Mortgage Loan
were
used to acquire or to improve or protect the Mortgage Property. For the purposes
of the preceding sentence, if the Mortgage Loan has been significantly modified
other than as a result of a default or a reasonable foreseeable default,
the
modified Mortgage Loan will be viewed as having been originated on the date
of
the modification;
(tt) Each
Mortgage Loan was originated by a savings and loan association, savings bank,
commercial bank, credit union, insurance company, or mortgage banking company
which is supervised and examined by a federal or state authority, or by a
mortgage originator approved by the Secretary of Housing and Urban Development
pursuant to Sections 2.03 and 2.11 of the National Housing Act, or by a credit
union service organization, which
was, at the time of origination of the Mortgage Loan, duly organized, validly
existing, licensed and otherwise qualified to originate the Mortgage Loan
and to
transact business in and was in good standing under the laws of the state
where
the related Mortgage Loan was originated and such origination was in compliance
in all respects with the Secondary Mortgage Market Enhancement Act of
1984;
33
(uu)
None
of the Mortgage Loans are simple interest Mortgage Loans and none of the
Mortgaged Properties are timeshares;
(vv)
All
of the terms of the Mortgage pertaining to interest rate adjustments, payment
adjustments and adjustments of the outstanding principal balance are
enforceable, all such adjustments have been properly made, including the
mailing
of required notices, and such adjustments do not and will not affect the
priority of the Mortgage lien. With respect to each Mortgage Loan which has
passed its initial Adjustment Date, Servicer has performed an audit of the
Mortgage Loan to determine whether all interest rate adjustments have been
made
in accordance with the terms of the Mortgage Note and Mortgage;
(ww)
Each
Mortgage Note, each Mortgage, each Assignment and any other documents required
pursuant to this Agreement to be delivered to the Purchaser or its designee,
or
its assignee for each Mortgage Loan, have been, on or before the related
Closing
Date, delivered to the Purchaser or its designee, or its assignee, or such
delivery has been waived by the Purchaser or its designee, or its assignee;
and
(xx) No
Mortgage Loan which is a “home loan” as defined in the Georgia Fair Lending Act
was originated, brokered, solicited, processed, placed, negotiated, or offered
on or after October 1, 2002 and prior to March 7, 2003. No Mortgage Loan
is a
"high-cost home loan" as defined in i.) the Georgia Fair Lending Act,
or ii.)
Part 41 of the General Regulations Banking Board of New York and Section
6-L of
the New York State Banking Law,
or iii.) Chapter 360.100 of the Kentucky Revised Statutes, or iv.) the New
Jersey Home Ownership Security Act of 2002,
or
v.) the Arkansas Home Loan Protection Act.
Section
3.03 Repurchase;
Substitution.
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 and delivery
of the Mortgage Loan Documents to the Purchaser, or its designee, and shall
inure to the benefit of the Purchaser, notwithstanding any restrictive or
qualified endorsement on any Mortgage Note or Assignment or the examination,
or
lack of examination, of any Mortgage File. Upon discovery by either the Company
or the Purchaser of a breach of any of the foregoing representations and
warranties which materially and adversely affects the value of the Mortgage
Loans or the interest of the Purchaser in any Mortgage Loan, the party
discovering such breach shall give prompt written notice to the other. The
Company shall have a period of sixty (60) days from the earlier of its discovery
or its receipt of notice of any such breach within which to correct or cure
such
breach. The Company hereby covenants and agrees that if any such breach is
not
corrected or cured within such sixty day period, the Company shall, at the
Purchaser's option and not later than ninety (90) days of its discovery or
its
receipt of notice of such breach, repurchase such Mortgage Loan at the
Repurchase Price or, with the Purchaser's prior consent and at Purchaser’s sole
option, substitute a Mortgage Loan as provided below. In the event that any
such
breach shall involve any representation or warranty set forth in Section
3.01,
such breach is not cured within sixty (60) days of the earlier of either
discovery by or notice to the Company of such breach, and the Purchaser shall
have delivered to the Company, within ninety (90) days following such sixty
(60)
day period, written notice requiring the Company to repurchase the Mortgage
Loans, then all Mortgage Loans shall, at the option of the Purchaser, be
repurchased by the Company at the Repurchase Price. Any such repurchase shall
be
accomplished by wire transfer of immediately available funds to Purchaser
in the
amount of the Repurchase Price.
34
If
the
Company is required to repurchase any Mortgage Loan pursuant to this Section
3.03, the Company may, with the Purchaser's prior consent and at Purchaser’s
sole option, within ninety (90) days from the related Closing Date, remove
such
defective Mortgage Loan from the terms of this Agreement and substitute another
mortgage loan for such defective Mortgage Loan, in lieu of repurchasing such
defective Mortgage Loan. Any substitute Mortgage Loan is subject to Purchaser
acceptability. Any substituted Loans will comply with the representations
and
warranties set forth in this Agreement as of the substitution date
The
Company shall amend the related Mortgage Loan Schedule to reflect the withdrawal
of the removed Mortgage Loan from this Agreement and the substitution of
such
substitute Mortgage Loan therefor. Upon such amendment, the Purchaser shall
review the Mortgage File delivered to it relating to the substitute Mortgage
Loan. In the event of such a substitution, accrued interest on the substitute
Mortgage Loan for the month in which the substitution occurs and any Principal
Prepayments made thereon during such month shall be the property of the
Purchaser and accrued interest for such month on the Mortgage Loan for which
the
substitution is made and any Principal Prepayments made thereon during such
month shall be the property of the Company. The principal payment on a
substitute Mortgage Loan due on the Due Date in the month of substitution
shall
be the property of the Company and the principal payment on the Mortgage
Loan
for which the substitution is made due on such date shall be the property
of the
Purchaser.
It
is
understood and agreed that the obligation of the Company set forth in this
Section 3.03 to cure, repurchase or substitute for a defective Mortgage Loan,
and to indemnify Purchaser pursuant to Section 8.01, constitute the sole
remedies of the Purchaser respecting a breach of the foregoing representations
and warranties. If the Company fails to repurchase or substitute for a defective
Mortgage Loan in accordance with this Section 3.03, or fails to cure a defective
Mortgage Loan to Purchaser's reasonable satisfaction in accordance with this
Section 3.03, or to indemnify Purchaser pursuant to Section 8.01, that failure
shall be an Event of Default and the Purchaser shall be entitled to pursue
all
remedies available in this Agreement as a result thereof. No provision of
this
paragraph shall affect the rights of the Purchaser to terminate this Agreement
for cause, as set forth in Sections 10.01 and 11.01.
Any
cause
of action against the Company relating to or arising out of the breach of
any
representations and warranties made in Sections 3.01 and 3.02 shall accrue
as to
any Mortgage Loan upon the earlier of (i) discovery of such breach by the
Company or notice thereof by the Purchaser to the Company, (ii) failure by
the
Company to cure such breach or repurchase such Mortgage Loan as specified
above,
or (iii) demand upon the Company by the Purchaser for compliance with this
Agreement.
35
In
the
event that any Mortgage Loan is held by a REMIC, notwithstanding any contrary
provision of this Agreement, with respect to any Mortgage Loan that is not
in
default or as to which no default is imminent, no substitution pursuant to
Subsection 3.03 shall be made after the applicable REMIC's "start up day"
(as
defined in Section 860G(a) (9) of the Code), unless the Company has obtained
an
Opinion of Counsel to the effect that such substitution will not (i) result
in
the imposition of taxes on "prohibited transactions" of such REMIC (as defined
in Section 860F of the Code) or otherwise subject the REMIC to tax, or (ii)
cause the REMIC to fail to qualify as a REMIC at any time.
Section
3.04 Representations
and Warranties of the Purchaser.
The
Purchaser represents, warrants and covenants to the Company that, as of the
related Closing Date or as of such date specifically provided
herein:
(a) The
Purchaser is a corporation, duly organized, validly existing and in good
standing under the laws of the State of Delaware and has all licenses necessary
to carry out its business as now being conducted, and is licensed and qualified
to transact business in and is in good standing under the laws of each state
in
which any Mortgaged Property is located or is otherwise exempt under applicable
law from such licensing or qualification or is otherwise not required under
applicable law to effect such licensing or qualification and no demand for
such
licensing or qualification has been made upon Purchaser by any such state,
and
in any event the Purchaser is in compliance with the laws of any such state
to
the extent necessary to ensure the enforceability of this Agreement.;
(b) The
Purchaser has full power and authority to hold each Mortgage Loan, to purchase
each Mortgage Loan pursuant to this Agreement and the related Term Sheet
and to
execute, deliver and perform, and to enter into and consummate all transactions
contemplated by this Agreement and the related Term Sheet and to conduct
its
business as presently conducted, has duly authorized the execution, delivery
and
performance of this Agreement and the related Term Sheet, and has duly executed
and delivered this Agreement and the related Term Sheet;
(c) None
of
the execution and delivery of this Agreement and the related Term Sheet,
the
purchase of the Mortgage Loans, the consummation of the transactions
contemplated hereby, or the fulfillment of or compliance with the terms and
conditions of this Agreement and the related Term Sheet will conflict with
any
of the terms, conditions or provisions of the Purchaser’s charter or by-laws or
materially conflict with or result in a material breach of any of the terms,
conditions or provisions
of any legal restriction or any agreement or instrument to which the Purchaser
is now a party or by which it is bound, or constitute a default or result
in an
acceleration under any of the foregoing, or result in the material violation
of
any law, rule, regulation, order, judgment or decree to which the Purchaser
or
its property is subject;
36
(d) There
is
no litigation pending or to the best of the Purchaser’s knowledge, threatened
with respect to the Purchaser which is reasonably likely to have a material
adverse effect on the purchase of the related Mortgage Loans, the execution,
delivery or enforceability of this Agreement and the related Term Sheet,
or
which is reasonably likely to have a material adverse effect on the financial
condition of the Purchaser;
(e) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Purchaser
of
or compliance by the Purchaser with this Agreement and the related Term Sheet,
the purchase of the Mortgage Loans or the consummation of the transactions
contemplated by this Agreement and the related Term Sheet except for consents,
approvals, authorizations and orders which have been obtained;
(f) The
consummation of the transactions contemplated by this Agreement and the related
Term Sheet is in the ordinary course of business of the Purchaser;
(h) The
Purchaser will treat the purchase of the Mortgage Loans from the Company
as a
purchase for reporting, tax and accounting purposes; and
(i) The
Purchaser does not believe, nor does it have any cause or reason to believe,
that it cannot perform each and every of its covenants contained in this
Agreement and the related Term Sheet.
The
Purchaser shall indemnify the Company and hold it harmless against any claims,
proceedings, losses, damages, penalties, fines, forfeitures, reasonable legal
fees and related costs, judgments, and other costs and expenses resulting
from a
breach by the Purchaser of the representations and warranties contained in
this
Section 3.04. It is understood and agreed that the obligations of the Purchaser
set forth in this Section 3.04 to indemnify the Company as provided herein
constitute the sole remedies of the Seller respecting a breach of the foregoing
representations and warranties.
ARTICLE
IV
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
Section
4.01 Servicer
and Master Servicer.
The
Company shall cause one or more Servicers to service and administer the Mortgage
Loans in accordance with the provisions of this Agreement and the related
Term
Sheet and with Accepted Servicing Practices, and shall have full power and
authority, acting alone, to do or cause to be done any and all things in
connection with such servicing and administration which the Servicer may
deem
necessary or desirable and consistent with the terms of this Agreement and
the
related Term Sheet and with Accepted Servicing Practices and exercise the
same
care that it customarily employs for its own account. Except as set forth
in
this Agreement and the related Term Sheet, the Company shall cause the Servicer
shall service the Mortgage Loans in strict compliance with the servicing
provisions of the ▇▇▇▇▇▇ ▇▇▇ Guides (special servicing option), which include,
but are not limited to, provisions regarding the liquidation of Mortgage
Loans,
the collection of Mortgage Loan payments, the payment of taxes, insurance
and
other charges, the maintenance of hazard insurance with a Qualified Insurer,
the
maintenance of mortgage impairment insurance, the maintenance of fidelity
bond
and errors and omissions insurance, inspections, the restoration of Mortgaged
Property, the maintenance of Primary Mortgage Insurance Policies and Lender
Primary Mortgage Insurance Policies, insurance claims, the title, management
and
disposition of REO Property, permitted withdrawals with respect to REO Property,
liquidation reports, and reports of foreclosures and abandonments of Mortgaged
Property, the transfer of Mortgaged Property, the release of Mortgage Files,
annual statements, and examination of records and facilities. In the event
of
any conflict, inconsistency or discrepancy between any of the servicing
provisions of this Agreement and the related Term Sheet and any of the servicing
provisions of the ▇▇▇▇▇▇ Mae Guides, the provisions of this Agreement and
the
related Term Sheet shall control and be binding upon the Purchaser, the Company
and the Servicer.
37
Consistent
with the terms of this Agreement and the related Term Sheet, the Servicer
may
waive, modify or vary any term of any Mortgage Loan or consent to the
postponement of any such term or in any manner grant indulgence to any Mortgagor
if in the Servicer’s reasonable and prudent determination such waiver,
modification, postponement or indulgence is not materially adverse to the
Purchaser, provided, however, that unless the Servicer has obtained the prior
written consent of the Purchaser, the Servicer shall not permit any modification
with respect to any Mortgage Loan that would change the Mortgage Interest
Rate,
defer for more than ninety days or forgive any payment of principal or interest,
reduce or increase the outstanding principal balance (except for actual payments
of principal) or change the final maturity date on such Mortgage Loan. In
the
event of any such modification which has been agreed to in writing by the
Purchaser and which permits the deferral of interest or principal payments
on
any Mortgage Loan, the Servicer 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 4.04, 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 Servicer shall be entitled to reimbursement for such advances
to
the same extent as for all other advances pursuant to Section 4.05. Without
limiting the generality of the foregoing, the Servicer shall continue, and
is
hereby authorized and empowered, to prepare, execute and deliver, 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. Notwithstanding anything
herein to the contrary, the Servicer may not enter into a forbearance agreement
or similar arrangement with respect to any Mortgage Loan which runs more
than
180 days after the first delinquent Due Date. Any such agreement shall be
approved by Purchaser and, if required, by the Primary Mortgage Insurance
Policy
insurer and Lender Primary Mortgage Insurance Policy insurer, if required.
38
Notwithstanding
anything in this Agreement to the contrary, if any Mortgage Loan becomes
subject
to a Pass-Through Transfer, the Servicer (a) with respect to such Mortgage
Loan,
shall not permit any modification with respect to such Mortgage Loan that
would
change the Mortgage Interest Rate and (b) shall not (unless the Mortgagor
is in
default with respect to such Mortgage Loan or such default is, in the judgment
of the Servicer, reasonably foreseeable) make or permit any modification,
waiver
or amendment of any term of such Mortgage Loan that would both (i) effect
an
exchange or reissuance of such Mortgage Loan under Section 1001 of the Code
(or
Treasury regulations promulgated thereunder) and (ii) cause any REMIC to
fail to
qualify as a REMIC under the Code or the imposition of any tax on “prohibited
transactions” or “contributions” after the startup date under the REMIC
Provisions.
Prior
to
taking any action with respect to the Mortgage Loans subject to a Pass-Through
Transfer, which is not contemplated under the terms of this Agreement, the
Servicer will obtain an Opinion of Counsel acceptable to the trustee in such
Pass-Through Transfer with respect to whether such action could result in
the
imposition of a tax upon any 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)(either
such event, an “Adverse REMIC Event”), and the Servicer shall not take any such
actions as to which it has been advised that an Adverse REMIC Event could
occur.
The
Servicer shall not permit the creation of any “interests” (within the meaning of
Section 860G of the Code) in any REMIC. The Servicer shall not enter into
any
arrangement by which a REMIC will receive a fee or other compensation for
services nor permit a REMIC to receive any income from assets other than
“qualified mortgages” as defined in Section 860G(a)(3) of the Code or “permitted
investments” as defined in Section 860G(a)(5) of the Code.
In
servicing and administering the Mortgage Loans, the Company shall cause the
Servicer to employ Accepted Servicing Practices. Unless a different time
period
is stated in this Agreement or the related Term Sheet, Purchaser shall be
deemed
to have given consent in connection with a particular matter if Purchaser
does
not affirmatively grant or deny consent within five (5) Business Days from
the
date Purchaser receives a second written request for consent for such matter
from Company on behalf of Servicer.
The
Company shall have the right to cause a Master Servicer to receive information
and funds related to Mortgage Loans from one or more Servicer, process such
information and relay it and the appropriate funds to either the Company
or the
Purchaser, all in accordance with the Master Servicing Agreement.
The
Company represents and warrants that each Servicer and the Master Servicer
is an
entity that engages in the business of servicing loans, is authorized to
transact business, and licensed to service mortgage loans, in the state or
states where the related Mortgaged Properties it is to service are situated,
if
and to the extent required by applicable law to enable the Servicer or Master
Servicer to perform its obligations hereunder and under the Servicing Agreement
or Master Servicing Agreement, as appropriate, and is a ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇
Mae approved mortgage servicer in good standing, and no event has occurred,
including but not limited to a change in insurance coverage, which would
make it
unable to comply with the eligibility requirements for lenders imposed by
▇▇▇▇▇▇
▇▇▇ or for servicers imposed by ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac, or which would
require notification to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac. Each Servicer and the
Master
Servicer will obtain and preserve its qualifications to do business as a
foreign
corporation and its licenses to service mortgage loans, in each jurisdiction
in
which such qualifications and/or licenses are or shall be necessary to protect
the validity and enforceability of this Agreement, or any of the Mortgage
Loans
and to perform or cause to be performed its duties under the related Servicing
Agreement or Master Servicing Agreement. While each Servicer and the Master
Servicer will perform any and all of the servicing responsibilities hereunder,
the Company shall not be released from any of its obligations hereunder and
the
Company shall remain responsible hereunder for all acts and omissions of
each
Servicer and the Master Servicer as fully as if such acts and omissions were
those of the Company. The Company shall pay all fees and expenses of each
Servicer and the Master Servicer from its own funds. Company shall notify
Purchaser promptly in writing upon the appointment of each Servicer and the
Master Servicer.
39
At
the
cost and expense of the Company, without any right of reimbursement from
the
Custodial Account, the Company shall be entitled to terminate the rights
and
responsibilities of a Servicer and the Master Servicer and arrange for any
and
all servicing responsibilities to be performed by a successor Servicer or
Master
Servicer meeting the requirements in the preceding paragraph. In the event
that
the Company's right to use a Servicer to service the Mortgage Loans under
this
Agreement are terminated pursuant to Section 8.04, 9.01 or 10.01 and if
requested to do so by the Purchaser, the Company shall at its own cost and
expense terminate the rights and responsibilities of the Servicer effective
as
of the date of termination of the Company. The Company shall pay all fees,
expenses or penalties necessary in order to terminate the rights and
responsibilities of the Servicer from the Company's own funds without
reimbursement from the Purchaser.
Notwithstanding
any of the provisions of this Agreement relating to agreements or arrangements
between the Company and a Servicer or Master Servicer or any reference herein
to
actions taken by or through the Servicer, Master Servicer or otherwise, the
Company shall not be relieved of its obligations to the Purchaser and shall
be
obligated to the same extent and under the same terms and conditions as if
it
were servicing and administering the Mortgage Loans itself. The Company shall
be
entitled to enter into an agreement with each Servicer and the Master Servicer
for indemnification of the Company by the Servicer or Master Servicer and
nothing contained in this Agreement shall be deemed to limit or modify such
indemnification. The Company will indemnify and hold Purchaser harmless from
any
loss, liability or expense arising out of its use of a Servicer or Master
Servicer to perform any and all of the servicing duties, responsibilities
and
obligations hereunder.
40
Any
Servicing Agreement and any other transactions or services relating to the
Mortgage Loans involving the Servicer shall be deemed to be between the Servicer
and Company alone, and the Purchaser shall have no obligations, duties or
liabilities with respect to the Servicer including no obligation, duty or
liability of Purchaser to pay the Servicer's fees and expenses. For purposes
of
distributions and advances by the Company pursuant to this Agreement, the
Company shall be deemed to have received a payment on a Mortgage Loan when
the
Servicer has received such payment.
Any
Master Servicing Agreement and any other transactions or services relating
to
the Mortgage Loans involving the Master Servicer shall be deemed to be between
the Master Servicer and Company alone, and the Purchaser shall have no
obligations, duties or liabilities with respect to the Master Servicer including
no obligation, duty or liability of Purchaser to pay the Master Servicer's
fees
and expenses. For purposes of distributions and advances by the Company pursuant
to this Agreement, the Company shall be deemed to have received a payment
on a
Mortgage Loan when the Master Servicer has received such payment.
Section
4.02 Collection
of Mortgage Loan Payments.
Continuously
from the date hereof until the date each Mortgage Loan ceases to be subject
to
this Agreement, the Company shall cause the Servicer to proceed diligently
to
collect all payments due under each Mortgage Loan when the same shall become
due
and payable and shall, to the extent such procedures shall be consistent
with
this Agreement, Accepted Servicing Practices, and the terms and provisions
of
any related Primary Mortgage Insurance Policy and Lender Primary Mortgage
Insurance Policy, follow such collection procedures as it follows with respect
to mortgage loans comparable to the Mortgage Loans and held for its own account.
Further, the Company shall cause Servicer to take special care in ascertaining
and estimating annual escrow payments, and all other charges that, as provided
in the Mortgage, will become due and payable, so that the installments payable
by the Mortgagors will be sufficient to pay such charges as and when they
become
due and payable.
In
no
event will the Servicer waive its right to any prepayment penalty or premium
without the prior written consent of Purchaser and Servicer will use diligent
efforts to collect same when due except as otherwise provided in the prepayment
penalty rider to the Mortgage.
Section
4.03 Realization
Upon Defaulted Mortgage
The
Company shall cause Servicer to use its best efforts, consistent with the
procedures that the Servicer would use in servicing loans for its own account,
consistent with Accepted Servicing Practices, any Primary Mortgage Insurance
Policies and Lender Primary Mortgage Insurance Policies and the best interest
of
Purchaser, to foreclose upon or otherwise comparably convert the ownership
of
properties securing such of the Mortgage Loans as come into and continue
in
default and as to which no satisfactory arrangements can be made for collection
of delinquent payments pursuant to Section 4.01. Foreclosure or comparable
proceedings shall be initiated within ninety (90) days of default for Mortgaged
Properties for which no satisfactory arrangements can be made for collection
of
delinquent payments, subject to state and federal law and regulation. The
Company shall cause Servicer to use its best efforts to realize upon defaulted
Mortgage Loans in such manner as will maximize the receipt of principal and
interest by the Purchaser, taking into account, among other things, the timing
of foreclosure proceedings. The foregoing is subject to the provisions that,
in
any case in which a Mortgaged Property shall have suffered damage, the Servicer
shall not be required to expend its own funds toward the restoration of such
property unless it shall determine in its discretion (i) that such restoration
will increase the proceeds of liquidation of the related Mortgage Loan to
the
Purchaser after reimbursement to itself for such expenses, and (ii) that
such
expenses will be recoverable by the Servicer through Insurance Proceeds or
Liquidation Proceeds from the related Mortgaged Property, as contemplated
in
Section 4.05. Company shall obtain prior approval of Purchaser and convey
such
approval to Servicer as to repair or restoration expenses in excess of ten
thousand dollars ($10,000). The Company shall cause Servicer to notify the
Purchaser in writing of the commencement of foreclosure proceedings and not
less
than 5 days prior to the acceptance or rejection of any offer of reinstatement.
The Company shall be responsible for all costs and expenses incurred by Servicer
in any such proceedings or functions; provided, however, that it shall be
entitled to reimbursement thereof from the related property, as contemplated
in
Section 4.05. Notwithstanding anything to the contrary contained herein,
in
connection with a foreclosure or acceptance of a deed in lieu of foreclosure,
in
the event either the Company or the Servicer 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 at the Purchaser's expense. Upon completion
of the inspection, the Company shall cause Servicer to promptly provide the
Company and 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 Servicer shall proceed
with respect to the Mortgaged Property.
41
In
the
event that a Mortgage Loan becomes part of a REMIC, and becomes REO Property,
such property shall be disposed of by the Servicer, with the consent of
Purchaser as required pursuant to this Agreement, before the close of the
third
taxable year following the taxable year in which the Mortgage Loan became
an REO
Property, unless the Servicer provides to the trustee under such REMIC an
opinion of counsel to the effect that the holding of such REO Property
subsequent to the close of the third taxable year following the taxable year
in
which the Mortgage Loan became an REO Property, will not result in the
imposition of taxes on "prohibited transactions" as defined in Section 860F
of
the Code, or cause the transaction to fail to qualify as a REMIC at any time
that certificates are outstanding. The Company shall cause Servicer to manage,
conserve, protect and operate each such REO Property for the certificateholders
solely for the purpose of its prompt disposition and sale in a manner which
does
not cause such property to fail to qualify as "foreclosure property" within
the
meaning of Section 860F(a)(2)(E) of the Code, or any "net income from
foreclosure property" which is subject to taxation under the REMIC provisions
of
the Code. Pursuant to its efforts to sell such property, the Company shall
cause
Servicer to, either itself or through an agent selected by Servicer, protect
and
conserve such property in the same manner and to such an extent as is customary
in the locality where such property is located. Additionally, Company shall
cause Servicer to perform the tax withholding and reporting related to Sections
1445 and 6050J of the Code.
42
Section
4.04 Establishment
of Custodial Accounts; Deposits in Custodial Accounts.
The
Company shall cause Servicer to segregate and hold all funds collected and
received pursuant to each Mortgage Loan separate and apart from any of its
own
funds and general assets and shall establish and maintain one or more Custodial
Accounts. The Custodial Account shall be an Eligible Account. Funds deposited
in
the Custodial Account, which shall be deposited within 24 hours of receipt,
shall at all times be insured by the FDIC or the NCUSIF up to the FDIC or
NCUSIF
insurance limits, or must be invested in Permitted Investments for the benefit
of the Purchaser. Funds deposited in the Custodial Account may be drawn on
by
the Servicer in accordance with Section 4.05. The creation of any Custodial
Account shall be evidenced by a letter agreement in the form shown in Exhibit
B
hereto. The original of such letter agreement shall be furnished to the
Purchaser on the Closing Date, and upon the request of any subsequent
Purchaser.
The
Company shall cause Servicer to deposit in the Custodial Account on a daily
basis, and retain therein the following payments and collections received
or
made by it subsequent to the Cut-off Date, or received by it prior to the
Cut-off Date but allocable to a period subsequent thereto, other than in
respect
of principal and interest on the Mortgage Loans due on or before the Cut-off
Date:
(i) all
payments on account of principal, including Principal Prepayments, on the
Mortgage Loans;
(ii)
all
payments on account of interest on the Mortgage Loans adjusted to the Mortgage
Loan Remittance Rate;
(iii)
all
Liquidation Proceeds;
(iv)
any
amounts required to be deposited by the Servicer in connection with any REO
Property pursuant to Section 4.13 and in connection therewith, the Company
shall
cause Servicer to provide the Purchaser with written detail itemizing all
of
such amounts;
(v)
all
Insurance Proceeds including amounts required to be deposited pursuant to
Sections 4.08, 4.10 and 4.11, other than proceeds to be held in the Escrow
Account and applied to the restoration or repair of the Mortgaged Property
or
released to the Mortgagor in accordance with Accepted Servicing Practices,
the
Mortgage Loan Documents or applicable law;
(vi)
all
Condemnation Proceeds affecting any Mortgaged Property which are not released
to
the Mortgagor in accordance with Accepted Servicing Practices, the loan
documents or applicable law;
(vii)
any
Monthly Advances;
43
(viii)
with respect to each full or partial Principal Prepayment, any Prepayment
Interest Shortfalls, to the extent of the Company’s aggregate Servicing Fee
received with respect to the related Prepayment Period;
(ix)
any
amounts required to be deposited by the Servicer pursuant to Section 4.10
in
connection with the deductible clause in any blanket hazard insurance policy,
such deposit shall be made from the Servicer’s own funds, without reimbursement
therefor; and
(x)
any
amounts required to be deposited in the Custodial Account pursuant to Section
4.01, 4.13 or 6.02.
The
foregoing requirements for deposit in the Custodial Account shall be exclusive,
it being understood and agreed that, without limiting the generality of the
foregoing, payments in the nature of late payment charges and assumption
fees,
to the extent permitted by Section 6.01, need not be deposited by the Servicer
in the Custodial Account. Any interest paid on funds deposited in the Custodial
Account by the depository institution shall accrue to the benefit of the
Company
and the Company shall be entitled to retain and have the Servicer withdraw
such
interest from the Custodial Account pursuant to Section 4.05 (iv). The Purchaser
shall not be responsible for any losses suffered with respect to investment
of
funds in the Custodial Account.
Section
4.05 Permitted
Withdrawals From the Custodial Account.
The
Servicer may, from time to time, withdraw from the Custodial Account for
the
following purposes:
(i) to
make
payments to the Purchaser in the amounts and in the manner provided for in
Section 5.01;
(ii)
to
reimburse itself for Monthly Advances, the Servicer’s right to reimburse itself
pursuant to this subclause (ii) being limited to amounts received on the
related
Mortgage Loan which represent late collections (net of the related Servicing
Fees) of principal and/or interest respecting which any such advance was
made,
it being understood that, in the case of such reimbursement, the Servicer’s
right thereto shall be prior to the rights of the Purchaser, except that,
where
the Company is required to repurchase a Mortgage Loan, pursuant to Section
3.03,
the Servicer’s right to such reimbursement shall be subsequent to the payment to
the Purchaser of the Repurchase Price pursuant to such Section and all other
amounts required to be paid to the Purchaser with respect to such Mortgage
Loan;
(iii)
to
reimburse itself for unreimbursed Servicing Advances and any unpaid Servicing
Fees (or REO administration fees described in Section 4.13), the Servicer’s
right to reimburse itself pursuant to this subclause (iii) with respect to
any
Mortgage Loan being limited to related proceeds from Liquidation Proceeds,
Condemnation Proceeds and Insurance Proceeds in accordance with the relevant
provisions of the ▇▇▇▇▇▇ ▇▇▇ Guides or as otherwise set forth in this Agreement;
any recovery shall be made upon liquidation of the REO Property;
44
(iv) to
pay to
the Company (a) any interest earned on funds in the Custodial Account (all
such
interest to be withdrawn monthly not later than each Remittance Date), and
(b)
the Servicing Fee from that portion of any payment or recovery as to interest
with respect to a particular Mortgage Loan;
(v) to
pay to
itself with respect to each Mortgage Loan that has been repurchased pursuant
to
Section 3.03 all amounts received thereon and not distributed as of the date
on
which the related repurchase price is determined,
(vi) to
transfer funds to another Eligible Account in accordance with Section 4.09
hereof;
(vii) to
remove
funds inadvertently placed in the Custodial Account by the Servicer;
and
(viii) to
clear
and terminate the Custodial Account upon the termination of this
Agreement.
Section
4.06 Establishment
of Escrow Accounts; Deposits
in Escrow Accounts.
The
Company shall cause Servicer to segregate and hold all funds collected and
received pursuant to each Mortgage Loan which constitute Escrow Payments
separate and apart from any of its own funds and general assets and shall
establish and maintain one or more Escrow Accounts. The Escrow Account shall
be
an Eligible Account. Funds deposited in each Escrow Account shall at all
times
be insured in a manner to provide maximum insurance under the insurance
limitations of the FDIC or the NCUSIF, or must be invested in Permitted
Investments. Funds
deposited in the Escrow Account may be drawn on by the Servicer in accordance
with Section 4.07. The creation of any Escrow Account shall be evidenced
by a
letter agreement in the form shown in Exhibit C. The original of such letter
agreement shall be furnished to the Purchaser on the Closing Date, and upon
request to any subsequent purchaser.
The
Company shall cause Servicer to deposit in the Escrow Account or Accounts
on a
daily basis, 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
Insurance Proceeds which are to be applied to the restoration or repair of
any
Mortgaged Property; and
(iii) all
Servicing Advances for Mortgagors whose Escrow Payments are insufficient
to
cover escrow disbursements.
45
The
Company shall cause Servicer to make withdrawals from the Escrow Account
only to
effect such payments as are required under this Agreement, and for such other
purposes as shall be as set forth or in accordance with Section 4.07. The
Company shall be entitled to receive any interest paid on funds deposited
in the
Escrow Account by the depository institution other than interest on escrowed
funds required by law to be paid to the Mortgagor and, to the extent required
by
law, the Company shall cause Servicer to pay interest on escrowed funds to
the
Mortgagor notwithstanding that the Escrow Account is non-interest bearing
or
that interest paid thereon is insufficient for such purposes. The
Purchaser shall not be responsible for any losses suffered with respect to
investment of funds in the Escrow Account.
Section
4.07 Permitted
Withdrawals From Escrow Account.
Withdrawals
from the Escrow Account may be made by Servicer only:
(i) to
effect
timely payments of ground rents, taxes, assessments, water rates, Primary
Mortgage Insurance Policy premiums, if applicable, fire and hazard insurance
premiums, condominium assessments and comparable items;
(ii) to
reimburse Servicer for any Servicing Advance made by Servicer with respect
to a
related Mortgage Loan but only from amounts received on the related Mortgage
Loan which represent late payments or collections of Escrow Payments
thereunder;
(iii) to
refund
to the Mortgagor any funds as may be determined to be overages;
(iv) for
transfer to the Custodial Account in accordance with the terms of this
Agreement;
(v) for
application to restoration or repair of the Mortgaged Property;
(vi) to
pay to
the Company, or to the Mortgagor to the extent required by law, any interest
paid on the funds deposited in the Escrow Account;
(vii)
to
clear
and terminate the Escrow Account on the termination of this Agreement. As
part
of its servicing duties, the Company shall cause Servicer to pay to the
Mortgagors interest on funds in Escrow Account, to the extent required by
law,
and to the extent that interest earned on funds in the Escrow Account is
insufficient, shall pay such interest from its own funds, without any
reimbursement therefor from Purchaser; and
(viii)
to
pay to
the Mortgagors or other parties Insurance Proceeds deposited in accordance
with
Section 4.06.
46
Section
4.08 Payment
of Taxes, Insurance and Other Charges;
Maintenance of Primary Mortgage Insurance
Policies; Collections Thereunder.
With
respect to each Mortgage Loan, the Company shall cause Servicer to maintain
accurate records reflecting the status of ground rents, taxes, assessments,
water rates and other charges which are or may become a lien upon the Mortgaged
Property and the status of primary mortgage insurance premiums and fire and
hazard insurance coverage and shall obtain, from time to time, all bills
for the
payment of such charges, including renewal premiums and shall effect payment
thereof prior to the applicable penalty or termination date and at a time
appropriate for securing maximum discounts allowable, employing for such
purpose
deposits of the Mortgagor in the Escrow Account which shall have been estimated
and accumulated by the Servicer in amounts sufficient for such purposes,
as
allowed under the terms of the Mortgage or applicable law. To the extent
that
the Mortgage does not provide for Escrow Payments, the Company shall cause
Servicer to determine that any such payments are made by the Mortgagor at
the
time they first become due. The Company assumes full responsibility for Servicer
making the timely payment of all such bills, and the Company shall cause
Servicer to effect timely payments of all such bills irrespective of the
Mortgagor's faithful performance in the payment of same or the making of
the
Escrow Payments and shall make advances from its own funds to effect such
payments.
The
Company shall cause Servicer to maintain in full force and effect Primary
Mortgage Insurance Policies or Lender Primary Mortgage Insurance Policies
issued
by a Qualified Insurer with respect to each Mortgage Loan for which such
coverage is herein required. Such coverage will be terminated only (i) with
the
approval of Purchaser, (ii) after the Current LTV is eighty percent (80%)
or
less, or (iii) as required by applicable law or regulation. The Company shall
not allow Servicer to cancel or refuse to renew any Primary Mortgage Insurance
Policy or Lender Primary Mortgage Insurance Policy in effect on the Closing
Date
that is required to be kept in force under this Agreement unless a replacement
Primary Mortgage Insurance Policy or Lender Primary Mortgage Insurance Policy
for such canceled or nonrenewed policy is obtained from and maintained with
a
Qualified Insurer. The Company shall not allow Servicer to take any action
which
would result in non-coverage under any applicable Primary Mortgage Insurance
Policy or Lender Primary Mortgage Insurance Policy of any loss which, but
for
the actions of the Servicer would have been covered thereunder. In connection
with any assumption or substitution agreement entered into or to be entered
into
pursuant to Section 6.01, the Company shall cause Servicer to promptly notify
the insurer under the related Primary Mortgage Insurance Policy or Lender
Primary Mortgage Insurance Policy, if any, of such assumption or substitution
of
liability in accordance with the terms of such policy and shall take all
actions
which may be required by such insurer as a condition to the continuation
of
coverage under the Primary Mortgage Insurance Policy or Lender Primary Mortgage
Insurance Policy. If such Primary Mortgage Insurance Policy or Lender Primary
Mortgage Insurance Policy is terminated as a result of such assumption or
substitution of liability, the Company shall cause Servicer to obtain a
replacement Primary Mortgage Insurance Policy or Lender Primary Mortgage
Insurance Policy as provided above.
In
connection with its activities as servicer, the Company shall cause Servicer
to
agree to prepare and present, on behalf of the Company and the Purchaser,
claims
to the insurer under any Private Mortgage Insurance Policy in a timely fashion
in accordance with the terms of such Primary Mortgage Insurance Policy or
Lender
Primary Mortgage Insurance Policy and, in this regard, to take such action
as
shall be necessary to permit recovery under any Primary Mortgage Insurance
Policy or Lender Primary Mortgage Insurance Policy respecting a defaulted
Mortgage Loan. Pursuant to Section 4.04, any amounts collected by the Servicer
under any Primary Mortgage Insurance Policy or Lender Primary Mortgage Insurance
Policy shall be deposited in the Custodial Account, subject to withdrawal
pursuant to Section 4.05.
47
Section
4.09 Transfer
of Accounts.
The
Servicer may transfer the Custodial Account or the Escrow Account to a different
Eligible Account from time to time. Such transfer shall be made only upon
obtaining the prior written consent of the Purchaser, which consent will
not be
unreasonably withheld.
Section
4.10 Maintenance
of Hazard Insurance.
The
Company shall cause the Servicer to cause to be maintained for each Mortgage
Loan fire and hazard insurance with extended coverage as is acceptable to
▇▇▇▇▇▇
Mae or ▇▇▇▇▇▇▇ Mac and customary in the area where the Mortgaged Property
is
located in an amount which is equal to the lesser of (i) the maximum insurable
value of the improvements securing such Mortgage Loan or (ii) the greater
of (a)
the outstanding principal balance of the Mortgage Loan, and (b) an amount
such
that the proceeds thereof shall be sufficient to prevent the Mortgagor and/or
the mortgagee from becoming a co-insurer. If required by the Flood Disaster
Protection Act of 1973, as amended, each Mortgage Loan shall be covered by
a
flood insurance policy meeting the requirements of the current guidelines
of the
Federal Insurance Administration in effect with an insurance carrier acceptable
to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac, in an amount representing coverage not less
than
the least of (i) the outstanding principal balance of the Mortgage Loan,
(ii)
the maximum insurable value of the improvements securing such Mortgage Loan
or
(iii) the maximum amount of insurance which is available under the Flood
Disaster Protection Act of 1973, as amended. If at any time during the term
of
the Mortgage Loan, the Servicer determines in accordance with applicable
law and
pursuant to the ▇▇▇▇▇▇ Mae Guides that a Mortgaged Property is located in
a
special flood hazard area and is not covered by flood insurance or is covered
in
an amount less than the amount required by the Flood Disaster Protection
Act of
1973, as amended, the Company shall cause the Servicer to 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 cause the
Servicer to immediately force place the required flood insurance on the
Mortgagor’s behalf. The Company shall cause the Servicer to also maintain on
each REO Property, fire and hazard insurance with extended coverage in an
amount
which is at least equal to the maximum insurable value of the improvements
which
are a part of such property, and, to the extent required and available under
the
Flood Disaster Protection Act of 1973, as amended, flood insurance in an
amount
as provided above. Any amounts collected by the Servicer under any such policies
other than amounts to be deposited in the Escrow Account and applied to the
restoration or repair of the Mortgaged Property or REO Property, or released
to
the Mortgagor in accordance with Accepted Servicing Practices, shall be
deposited in the Custodial Account, subject to withdrawal pursuant to Section
4.05. It is understood and agreed that no other additional insurance need
be
required by the Servicer of the Mortgagor or maintained on property acquired
in
respect of the Mortgage Loan, other than pursuant to this Agreement, the
▇▇▇▇▇▇
▇▇▇ Guides or such applicable state or federal laws and regulations as shall
at
any time be in force and as shall require such additional insurance. All
such
policies shall be endorsed with standard mortgagee clauses with loss payable
to
the Company and its successors and/or assigns and shall provide for at least
thirty days prior written notice of any cancellation, reduction in the amount
or
material change in coverage to the Company. 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 Qualified
Insurers.
48
Section
4.11 Maintenance
of Mortgage Impairment Insurance Policy.
In
the
event that the Servicer shall obtain and maintain a blanket policy issued
by an
insurer acceptable to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac insuring against hazard losses
on all of the Mortgage Loans, then, to the extent such policy provides coverage
in an amount equal to the amount required pursuant to Section 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, it
being
understood and agreed that such policy may contain a deductible clause, in
which
case the Company shall cause the Servicer to, in the event that there shall
not
have been maintained on the related Mortgaged Property or REO Property a
policy
complying with Section 4.10, and there shall have been a loss which would
have
been covered by such policy, deposit in the Custodial Account the amount
not
otherwise payable under the blanket policy because of such deductible clause.
In
connection with its activities as servicer of the Mortgage Loans, the Company
shall cause the Servicer to agree to prepare and present, on behalf of the
Purchaser, claims under any such blanket policy in a timely fashion in
accordance with the terms of such policy. Upon request of the Purchaser,
the
Company shall cause the Servicer to deliver to the Purchaser a certified
true
copy of such policy and shall use its best efforts to obtain a statement
from
the insurer thereunder that such policy shall in no event be terminated or
materially modified without thirty (30) days' prior written notice to the
Purchaser.
Section
4.12 Fidelity
Bond, Errors and Omissions Insurance.
The
Company shall cause the Servicer to maintain, at its own expense, a blanket
fidelity bond and an errors and omissions insurance policy, with broad coverage
with responsible companies on all officers, employees or other persons acting
in
any capacity with regard to the Mortgage Loan to handle funds, money, documents
and papers relating to the Mortgage Loan. The Fidelity Bond shall be in the
form
of the Mortgage Banker's Blanket Bond and shall protect and insure the Servicer
against losses, including forgery, theft, embezzlement and fraud of such
persons. The errors and omissions insurance shall protect and insure the
Servicer against losses arising out of errors and omissions and negligent
acts
of such persons. Such errors and omissions insurance shall also protect and
insure the Servicer against losses in connection with the failure to maintain
any insurance policies required pursuant to this Agreement and the release
or
satisfaction of a Mortgage Loan without having obtained payment in full of
the
indebtedness secured thereby. No provision of this Section 4.12 requiring
the
Fidelity Bond or errors and omissions insurance shall diminish or relieve
the
Company or the Servicer from its duties and obligations as set forth in this
Agreement. The minimum coverage under any such bond and insurance policy
shall
be at least equal to the corresponding amounts required by ▇▇▇▇▇▇ Mae in
the
▇▇▇▇▇▇ ▇▇▇ Guides. Upon request by the Purchaser, the Company shall cause
the
Servicer to deliver to the Purchaser a certificate from the surety and the
insurer as to the existence of the Fidelity Bond and errors and omissions
insurance policy and the Company shall cause the Servicer to obtain a statement
from the surety and the insurer that such Fidelity Bond or insurance policy
shall in no event be terminated or materially modified without thirty (30)
days'
prior written notice to the Purchaser. The Company shall notify the Purchaser
within five (5) business days of receipt of notice that such Fidelity Bond
or
insurance policy will be, or has been, materially modified or terminated.
The
Purchaser (or any party having the status of Purchaser hereunder) and any
subsidiary thereof and their successors or assigns as their interests may
appear
must be named as loss payees on the Fidelity Bond and as additional insured
on
the errors and omissions policy. Upon request by Purchaser, the Company shall
cause the Servicer to provide Purchaser with an insurance certificate certifying
coverage under this Section 4.12, and will provide an update to such certificate
upon request, or upon renewal or material modification of
coverage.
49
Section
4.13 Title,
Management and Disposition of REO Property.
In
the
event that title to the Mortgaged Property is acquired in foreclosure or
by deed
in lieu of foreclosure, the deed or certificate of sale shall be taken in
the
name of the Purchaser or its designee, or in the event the Purchaser or its
designee is not authorized or permitted to hold title to real property in
the
state where the REO Property is located, or would be adversely affected under
the "doing business" or tax laws of such state by so holding title, the deed
or
certificate of sale shall be taken in the name of such Person or Persons
as
shall be consistent with an opinion of counsel obtained by the Servicer from
an
attorney duly licensed to practice law in the state where the REO Property
is
located. Any Person or Persons holding such title other than the Purchaser
shall
acknowledge in writing that such title is being held as nominee for the benefit
of the Purchaser.
The
Company shall cause the Servicer to notify the Purchaser in accordance with
the
▇▇▇▇▇▇ Mae Guides of each acquisition of REO Property upon such acquisition
(and, in any event, shall provide notice of the consummation of any foreclosure
sale within three (3) Business Days of the date Servicer receives notice
of such
consummation), together with a copy of the drive by appraisal or brokers
price
opinion of the Mortgaged Property obtained in connection with such acquisition,
and thereafter assume the responsibility for marketing such REO property
in
accordance with Accepted Servicing Practices. Thereafter, the Company shall
cause the Servicer to continue to provide certain administrative services
to the
Purchaser relating to such REO Property as set forth in this Section 4.13.
No
Servicing Fee shall be assessed or otherwise accrue on any REO Property from
and
after the date on which it becomes an REO Property.
The
Company shall cause the Servicer to, either itself or through an agent selected
by the Servicer, and in accordance with the ▇▇▇▇▇▇ ▇▇▇ Guides manage, conserve,
protect and operate each REO Property in the same manner that it manages,
conserves, protects and operates other foreclosed property for its own account,
and in the same manner that similar property in the same locality as the
REO
Property is managed. The Company shall cause the Servicer to shall cause
each
REO Property to be inspected promptly upon the acquisition of title thereto
and
shall cause each REO Property to be inspected at least monthly thereafter
or
more frequently as required by the circumstances. The Company shall cause
the
Servicer to shall make or cause to be made a written report of each such
inspection. Such reports shall be retained in the Mortgage File and the Company
shall cause the Servicer to forward copies thereof to the
Purchaser.
50
The
Company shall cause the Servicer to 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 year after title has been taken to such REO Property, unless the
Servicer determines, and gives an appropriate notice to the Purchaser to
such
effect, that a longer period is necessary for the orderly liquidation of
such
REO Property. If a longer period than one (1) year is permitted under the
foregoing sentence and is necessary to sell any REO Property, the Company
shall
cause the Servicer to report monthly to the Purchaser as to the progress
being
made in selling such REO Property. No REO Property shall be marketed for
less
than the Appraised Value, without the prior consent of Purchaser. No REO
Property shall be sold for less than ninety five percent (95%) of its Appraised
Value, without the prior consent of Purchaser. All requests for reimbursement
of
Servicing Advances shall be in accordance with the ▇▇▇▇▇▇ Mae Guides. The
disposition of REO Property shall be carried out by the Servicer at such
price,
and upon such terms and conditions, as the Servicer deems to be in the best
interests of the Purchaser (subject to the above conditions) only with the
prior
written consent of the Purchaser. The Company shall cause the Servicer to
provide monthly reports to Purchaser in reference to the status of the marketing
of the REO Properties.
Section
4.14 Notification
of Maturity Date.
With
respect to each Mortgage Loan, the Company shall cause the Servicer to shall
execute and deliver to the Mortgagor any and all necessary notices required
under applicable law and the terms of the related Mortgage Note and Mortgage
regarding the maturity date if required under applicable law.
ARTICLE
V
PAYMENTS
TO THE PURCHASER
Section
5.01 Distributions.
On
each
Remittance Date, the Company shall cause the Servicer to distribute by wire
transfer of immediately available funds to the Purchaser (i) all amounts
credited to the Custodial Account as of the close of business on the preceding
Determination Date, net of charges against or withdrawals from the Custodial
Account pursuant to Section 4.05, plus (ii) all Monthly Advances, if any,
which
the Servicer is obligated to distribute pursuant to Section 5.03, plus, (iii)
interest at the Mortgage Loan Remittance Rate on any Principal Prepayment
from
the date of such Principal Prepayment through the end of the month for which
disbursement is made provided that the Servicer’s obligation as to payment of
such interest shall be limited to the Servicing Fee earned during the month
of
the distribution, minus (iv) any amounts attributable to Monthly Payments
collected but due on a Due Date or Dates subsequent to the preceding
Determination Date, which amounts shall be remitted on the Remittance Date
next
succeeding the Due Period for such amounts. It is understood that, by operation
of Section 4.04, the remittance on the first Remittance Date with respect
to
Mortgage Loans purchased pursuant to the related Term Sheet is to include
principal collected after the Cut-off Date through the preceding Determination
Date plus interest, adjusted to the Mortgage Loan Remittance Rate collected
through such Determination Date exclusive of any portion thereof allocable
to
the period prior to the Cut-off Date, with the adjustments specified in clauses
(ii), (iii) and (iv) above.
51
With
respect to any remittance received by the Purchaser after the Remittance
Date,
the Company shall cause the Servicer to 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 two (2) percentage points, but in no event greater
than the maximum amount permitted by applicable law. Such interest shall
cover
the period commencing with the day following the Business Day such payment
was
due and ending with the Business Day on which such payment is made to the
Purchaser, both inclusive. The payment by the Servicer of any such interest
shall not be deemed an extension of time for payment or a waiver of any Event
of
Default by the Company. On each Remittance Date, the Company shall cause
the
Servicer to provide a remittance report detailing all amounts being remitted
pursuant to this Section 5.01.
Section
5.02 Statements
to the Purchaser.
The
Company shall cause the Servicer to furnish to Purchaser an individual loan
accounting report, as of the last Business Day of each month, in the Servicer’s
assigned loan number order to document Mortgage Loan payment activity on
an
individual Mortgage Loan basis. With respect to each month, the corresponding
individual loan accounting report shall be received by the Purchaser no later
than the fifth Business Day of the following month on a disk or tape or other
computer-readable format in such format as may be mutually agreed upon by
both
Purchaser and Company, and no later than the fifth Business Day of the following
month in hard copy, and shall contain the following:
(i)
With
respect to each Monthly Payment, the amount of such remittance allocable
to
principal (including a separate breakdown of any Principal Prepayment, including
the date of such prepayment, and any prepayment penalties or premiums, along
with a detailed report of interest on principal prepayment amounts remitted
in
accordance with Section 4.04);
(ii)
with
respect to each Monthly Payment, the amount of such remittance allocable
to
interest;
(iii)
the
amount of servicing compensation received by the Servicer during the prior
distribution period;
52
(iv)
the
aggregate Stated Principal Balance of the Mortgage Loans;
(v)
the
aggregate of any expenses reimbursed to the Servicer during the prior
distribution period pursuant to Section 4.05;
(vi)
The
number and aggregate outstanding principal balances of Mortgage Loans (a)
delinquent (1) 30 to 59 days, (2) 60 to 89 days, (3) 90 days or more; (b)
as to
which foreclosure has commenced; and (c) as to which REO Property has been
acquired; and
The
Company shall cause the Servicer to also provide a trial balance, sorted
in
Purchaser's assigned loan number order, in the form of Exhibit E hereto,
with
each such Report.
The
Company shall cause the Servicer to prepare and file any and all information
statements or other filings required to be delivered to any governmental
taxing
authority or to Purchaser pursuant to any applicable law with respect to
the
Mortgage Loans and the transactions contemplated hereby. In addition, the
Company shall cause the Servicer to provide Purchaser with such information
concerning the Mortgage Loans as is necessary for Purchaser to prepare its
federal income tax return as Purchaser may reasonably request from time to
time.
The
Company will cause the monthly remittance of funds provided for by Section
5.01
of this Agreement to be made to the Purchaser from a single source. The Company
will also cause the information contained in the monthly reports required
to be
provided by each Servicer to Purchaser pursuant to this Section 5.02 to be
consolidated so that the Purchaser will be provided monthly with a single
report
containing the information required by this Section 5.02. Furthermore, the
Company will cause the information contained in the annual reports required
to
be provided by each Servicer to Purchaser pursuant to Sections 6.04, 6.05
and
6.07 of this Agreement to be consolidated so that the Purchaser will be provided
annually with a single report containing the information required by Section
6.04, a single report containing the information required by Section 6.05
and a
single report containing the information required by Section 6.07.
Section
5.03 Monthly
Advances by the Servicer.
Not
later
than the close of business on the Business Day preceding each Remittance
Date,
the Company shall cause the Servicer to deposit in the Custodial Account
an
amount equal to all payments not previously advanced by the Servicer, whether
or
not deferred pursuant to Section 4.01, of principal (due after the Cut-off
Date)
and interest not allocable to the period prior to the Cut-off Date, adjusted
to
the Mortgage Loan Remittance Rate, which were due on a Mortgage Loan and
delinquent at the close of business on the related Determination
Date.
The
Servicer’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 Remittance Date prior to the date on which
the
Mortgaged Property liquidates (including Insurance Proceeds, proceeds from
the
sale of REO Property or Condemnation Proceeds) with respect to the Mortgage
Loan
unless the Servicer deems such advance to be nonrecoverable. In such event,
the
Company shall cause the Servicer to deliver to the Purchaser a certificate
signed by a Servicing Officer to the effect that an officer of the Servicer
has
reviewed the related Mortgage File and has made the reasonable determination
that any additional advances are nonrecoverable.
53
Section
5.04 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 cause
the
Servicer to submit to the Purchaser a liquidation report with respect to
such
Mortgaged Property in a form mutually acceptable to Company and Purchaser.
The
Company shall cause the Servicer to also provide reports on the status of
REO
Property containing such information as Purchaser may reasonably
require.
ARTICLE
VI
GENERAL
SERVICING PROCEDURES
Section
6.01 Assumption
Agreements.
The
Company shall cause the Servicer to, to the extent it has knowledge of any
conveyance or prospective conveyance by any Mortgagor of the Mortgaged Property
(whether by absolute conveyance or by contract of sale, and whether or not
the
Mortgagor remains or is to remain liable under the Mortgage Note and/or the
Mortgage), exercise its rights to accelerate the maturity of such Mortgage
Loan
under any "due-on-sale" clause to the extent permitted by law; provided,
however, that the Company shall cause the Servicer to not exercise any such
rights if prohibited by law or the terms of the Mortgage Note from doing
so or
if the exercise of such rights would impair or threaten to impair any recovery
under the related Primary Mortgage Insurance Policy or Lender Primary Mortgage
Insurance Policy, if any. If the Servicer reasonably believes it is unable
under
applicable law to enforce such "due-on-sale" clause, the Servicerwill enter
into
an assumption agreement with the person to whom the Mortgaged Property has
been
conveyed or is proposed to be conveyed, pursuant to which such person becomes
liable under the Mortgage Note and, to the extent permitted by applicable
state
law, the Mortgagor remains liable thereon. The Company will provide the
Purchaser with written notice of the finalization of each such assumption
agreement. Where an assumption is allowed pursuant to this Section 6.01 and
not
required by law, the Servicer, with the prior consent of the Purchaser and
the
primary mortgage insurer, if any, is authorized to enter into a substitution
of
liability agreement with the person to whom the Mortgaged Property has been
conveyed or is proposed to be conveyed pursuant to which the original mortgagor
is released from liability and such Person is substituted as mortgagor and
becomes liable under the related Mortgage Note. Any such substitution of
liability agreement shall be in lieu of an assumption agreement. Where an
assumption is required by law, the Servicer is authorized to enter into a
substitution of liability agreement with the person to whom the Mortgaged
Property has been conveyed or is proposed to be conveyed pursuant to which
the
original mortgagor is released from liability and such Person is substituted
as
mortgagor and becomes liable under the related Mortgage Note. Any such
substitution of liability agreement shall be in lieu of an assumption agreement.
The Company shall provide the Purchaser and the primary mortgage insurer,
if
any, with written notice of the finalization of each such substitution of
liability agreement.
54
In
connection with any such assumption or substitution of liability, the Company
shall cause the Servicer to follow the underwriting standards as described
in
Exhibit H. With respect to an assumption or substitution of liability, the
Mortgage Interest Rate borne by the related Mortgage Note, the amount of
the
Monthly Payment and the maturity date may not be changed (except pursuant
to the
terms of the Mortgage Note). If the credit of the proposed transferee does
not
meet such underwriting criteria, the diligently shall, to the extent permitted
by the Mortgage or the Mortgage Note and by applicable law, accelerate the
maturity of the Mortgage Loan. The Company shall cause the Servicer to notify
the Purchaser that any such substitution of liability or assumption agreement
has been completed by forwarding to the Purchaser the original of any such
substitution of liability or assumption agreement, which document shall be
added
to the related Mortgage File and shall, for all purposes, be considered a
part
of such Mortgage File to the same extent as all other documents and instruments
constituting a part thereof. All fees collected by the Servicer for entering
into an assumption or substitution of liability agreement shall belong to
the
Company.
Notwithstanding
the foregoing paragraphs of this Section or any other provision of this
Agreement, the Company shall not be deemed to be in default, breach or any
other
violation of its obligations hereunder by reason of any assumption of a Mortgage
Loan by operation of law or any assumption which the Company or the Servicer
may
be restricted by law from preventing, for any reason whatsoever. For purposes
of
this Section 6.01, the term "assumption" is deemed to also include a sale
of the
Mortgaged Property subject to the Mortgage that is not accompanied by an
assumption or substitution of liability agreement.
Section
6.02 Satisfaction
of Mortgages and Release of Mortgage Files.
Upon
the
payment in full of any Mortgage Loan, or the receipt by the Servicer of a
notification that payment in full will be escrowed in a manner customary
for
such purposes, the Company shall cause the Servicer to immediately notify
the
Purchaser by a certification, which certification shall include a statement
to
the effect that all amounts received or to be received in connection with
such
payment which are required to be deposited in the Custodial Account pursuant
to
Section 4.04 have been or will be so deposited, of a Servicing Officer and
shall
request delivery to it of the portion of the Mortgage File held by the
Purchaser. The Purchaser shall no later than five Business Days after receipt
of
such certification and request, release or cause to be released to the Servicer,
the related Mortgage Loan Documents and, upon its receipt of such documents,
the
Company shall cause the Servicer to promptly prepare and deliver to the
Purchaser the requisite satisfaction or release. No later than five (5) Business
Days following its receipt of such satisfaction or release, the Purchaser
shall
deliver, or cause to be delivered, to the Servicer the release or satisfaction
properly executed by the owner of record of the applicable mortgage or its
duly
appointed attorney in fact. No expense incurred in connection with any
instrument of satisfaction or deed of reconveyance shall be chargeable to
the
Custodial Account.
55
In
the
event the Servicer satisfies or releases a Mortgage without having obtained
payment in full of the indebtedness secured by the Mortgage or should it
otherwise prejudice any right the Purchaser may have under the mortgage
instruments, the Company shall cause the Servicer to, upon written demand,
shall
remit within two (2) Business Days to the Purchaser the then outstanding
principal balance of the related Mortgage Loan by deposit thereof in the
Custodial Account. The Company shall cause the Servicer to maintain the Fidelity
Bond and errors and omissions insurance insuring the Servicer against any
loss
it may sustain with respect to any Mortgage Loan not satisfied in accordance
with the procedures set forth herein.
From
time
to time and as appropriate for the servicing or foreclosure of the Mortgage
Loan, including for the purpose of collection under any Primary Mortgage
Insurance Policy or Lender Primary Mortgage Insurance Policy, the Purchaser
shall, upon request of the Servicer and delivery to the Purchaser of a servicing
receipt signed by a Servicing Officer, release the portion of the Mortgage
File
held by the Purchaser to the Servicer. Such servicing receipt shall obligate
the
Servicer to return the related Mortgage documents to the Purchaser when the
need
therefor by the Servicer no longer exists, unless the Mortgage Loan has been
liquidated and the Liquidation Proceeds relating to the Mortgage Loan have
been
deposited in the Custodial Account or the Mortgage File or such document
has
been delivered to an attorney, or to a public trustee or other public official
as required by law, for purposes of initiating or pursuing legal action or
other
proceedings for the foreclosure of the Mortgaged Property either judicially
or
non-judicially, and the Servicer has delivered to the Purchaser a Servicing
Officer’s Certificate certifying as to the name and address of the Person to
which such Mortgage File or such document was delivered and the purpose or
purposes of such delivery. Upon receipt of a Servicing Officer’s Certificate
stating that such Mortgage Loan was liquidated, the servicing receipt shall
be
released by the Purchaser to the Servicer.
Section
6.03 Servicing
Compensation.
As
compensation for causing the Servicer to service the Mortgage Loans hereunder,
the Company shall be entitled to have the Servicer: (i) withdraw from the
Custodial Account (to the extent of interest payments collected on the Mortgage
Loans) and remit to the Company; or (ii) to remit to the Company from funds
retained from interest payments collected on the Mortgage Loans, the amounts
provided for as the Servicing Fee, subject to payment of compensating interest
on Principal Prepayments as capped by the Servicing Fee pursuant to Section
5.01
(iii). Additional servicing compensation in the form of assumption fees,
as
provided in Section 6.01, and late payment charges or otherwise shall be
conveyed by Servicer to the Company to the extent not required to be deposited
in the Custodial Account. No Servicing Fee shall be payable in connection
with
partial Monthly Payments. The Company shall be responsible for all expenses
incurred by Servicer in connection with Servicer’s servicing activities
hereunder, and the Company shall not be entitled to reimbursement therefor
except as specifically provided for.
56
Section
6.04 Annual
Statement as to Compliance.
The
Company shall cause the Servicer to deliver to the Purchaser, on
or before March 1st
of each year following the first year in which there is a Closing Date,
a
certificate signed by a Servicing Officer stating, as to each signatory thereof,
that (A) a review of the activities of the Servicer during the preceding
calendar year and of performance under this Agreement has been made under
such
officers' supervision, and (B) to the best of such officers' knowledge, based
on
such review, the Servicer has fulfilled all of its obligations under the
Servicing Agreement throughout such year, or, if there has been a default
in the
fulfillment of any such obligation, specifying each such default known to
such
officers and the nature and status of cure provisions thereof.
The
Company shall cause the Servicer to provide copies of such statement to the
Purchaser upon request.
Section
6.05 Annual
Independent Certified Public Accountants' Servicing Report.
On
or before March 1st
of each year following the first year in which there is a Closing
Date,
the
Company shall cause the Servicer to, at its expense, cause a firm of independent
public accountants which is a member of the American Institute of Certified
Public Accountants to furnish a statement to the Purchaser to the effect
that
such firm has examined certain documents and records relating to the Servicer’s
servicing of mortgage loans of the same type as the Mortgage Loans pursuant
to
the Servicing Agreement and servicing agreements substantially similar to
this
Agreement, which agreements may include this Agreement, and that, on the
basis
of such an examination, conducted substantially in the uniform single audit
program for mortgage bankers, such firm is of the opinion that the Servicer’s
servicing has been conducted in compliance with the agreements examined pursuant
to this Section 6.05, except for (i) such exceptions as such firm shall believe
to be immaterial, and (ii) such other exceptions as shall be set forth in
such
statement. The Company shall cause the Servicer to provide copies of such
statement to the Purchaser. In addition, on an annual basis, the Company
shall
cause the Servicer to provided Purchaser with copies of its audited financial
statements.
Section
6.06 Purchaser's
Right to Examine Servicer Records.
The
Purchaser shall have the right to examine and audit upon reasonable notice
to
the Servicer, during normal business hours, any and all of the books, records,
documentation or other information of the Servicer, or held by another for
the
Servicer or on its behalf or otherwise, which relates to the performance
or
observance by the Servicer of the terms, covenants or conditions of this
Agreement or the Servicing Agreement.
The
Company shall cause the Servicer to provide to the Purchaser and any supervisory
agents or examiners representing a state or federal governmental agency having
jurisdiction over the Purchaser, including but not limited to OTS, FDIC and
other similar entities, access to any documentation regarding the Mortgage
Loans
in the possession of the Servicer which may be required by any applicable
regulations. Such access shall be afforded without charge, upon reasonable
request, during normal business hours and at the offices of the Servicer,
and in
accordance with the federal government, FDIC, OTS, or any other similar
regulations.
57
Section
6.07 ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Certification.
A. For
so
long as the Mortgage Loans are being serviced by Servicer as part of a
securitization transaction and a certificate with respect to such servicing
is
required to be furnished by Purchaser or an agent of the Purchaser under
the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as amended, and any rules and regulations
promulgated thereunder (“▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”), the Company shall cause an
officer of the Servicer on or before March 15, 2005 and March 15th
of each
year thereafter (or if not a Business Day, the immediately preceding Business
Day), to execute and deliver an officer’s certification in compliance with the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act to the related master servicer and the related depositor
(each referred to herein as “Purchaser’s Agent”) for the benefit of such
Purchaser’s Agent and its officers, directors and affiliates, certifying as to
the following matters:
|
(i)
|
I
have reviewed the annual statement of compliance (“Annual Statement of
Compliance”) prepared by Servicer, and the annual independent public
accountant’s servicing report made in accordance with the Uniform
Single Attestation Program for Mortgage Bankers
(“Annual Independent Public Accountant’s Servicing Report”), which have
been furnished to Purchaser’s Agents pursuant to this Agreement and any
subsequent servicing agreement related thereto or the Mortgage
Loans
(collectively, “Servicing
Agreement”);
|
|
(ii)
|
Based
on my knowledge, the information in the most recently issued Annual
Statement of Compliance, the most recently issued Annual Independent
Public Accountant’s Servicing Report, and all final servicing reports
prepared by Servicer and delivered to Purchaser’s Agent pursuant to the
Servicing Agreement relating to the servicing of the Mortgage Loans,
taken
as a whole, does not contain any untrue statement of material fact
or omit
to state a material fact necessary to make the statements made,
in light
of the circumstances under which such statements were made, not
misleading
as of the last day of the period covered by such statements or
reports;
|
|
(iii)
|
Based
on my knowledge, the servicing information required to be provided
to the
Purchaser’s Agent by the Servicer under the Servicing Agreement has been
provided to Purchaser’s Agent;
|
|
(iv)
|
I
am responsible for reviewing the activities performed by the Servicer
under the Servicing Agreement and based upon the review required
by the
Servicing Agreement, and except as disclosed in the most recently
issued
Annual Statement of Compliance and the most recently issued Annual
Independent Public Accountant’s Servicing Report submitted to the
Purchaser’s Agent, the Servicer has, as of the last day of the period
covered by the most recently issued Annual Statement of Compliance
fulfilled its obligations under the Servicing Agreement;
and
|
58
|
(v)
|
I
have disclosed to Purchaser’s Agent all significant deficiencies relating
to the Servicer’s compliance with the minimum servicing standards in
accordance with a review conducted in compliance with the Uniform
Single Attestation Program for Mortgage Bankers
or
similar standard as set forth in the Servicing
Agreement.
|
B. The
Servicer shall indemnify and hold harmless the Purchaser’s Agent and its
officers, directors, agents and affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments and other costs and expenses arising out of or based upon a breach
by
the Servicer or any of its officers, directors, agents or affiliates of its
obligations under this Section 6.07 or the gross negligence, bad faith or
willful misconduct of the Servicer in connection therewith.
C. It
is
acknowledged and agreed that each Purchaser’s Agent shall be an express third
party beneficiary of the provisions of this Section 6.07 and shall be entitled
independently to enforce the provisions of this Section6.07 with respect
to any
obligations owed to such entity as if it were a direct party to this
Agreement.
ARTICLE
VII
REPORTS
TO BE CAUSED TO BE PREPARED BY SERVICER BY COMPANY
Section
7.01 Company
shall cause the Servicer to Provide Information as Reasonably
Required.
The
Company shall cause the Servicer to furnish to the Purchaser during the term
of
this Agreement, such periodic, special or other reports, information or
documentation, whether or not provided for herein, as shall be necessary,
reasonable or appropriate in respect to the Purchaser, or otherwise in respect
to the Mortgage Loans and the performance of the Servicer under this Agreement,
including any reports, information or documentation reasonably required to
comply with any regulations regarding any supervisory agents or examiners
of the
Purchaser all such reports or information to be as provided by and in accordance
with such applicable instructions and directions as the Purchaser may reasonably
request in relation to this Agreement or the performance of the Servicer
under
this Agreement or the Servicing Agreement. The Company shall cause the Servicer
to agree to execute and deliver all such instruments and take all such action
as
the Purchaser, from time to time, may reasonably request in order to effectuate
the purpose and to carry out the terms of this Agreement.
In
connection with marketing the Mortgage Loans, the Purchaser may make available
to a prospective purchaser audited financial statements of the Servicer for
the
most recently completed two (2) fiscal years for which such statements are
available, as well as a Consolidated Statement of Condition at the end of
the
last two (2) fiscal years covered by any Consolidated Statement of Operations.
If it has not already done so, the Company shall cause the Servicer to furnish
promptly to the Purchaser or a prospective purchaser copies of the statements
specified above.
59
The
Company shall cause the Servicer to make reasonably available to the Purchaser
or any prospective Purchaser a knowledgeable financial or accounting officer
for
the purpose of answering questions and to permit any prospective purchaser
to
inspect the Servicer’s servicing facilities for the purpose of satisfying such
prospective purchaser that the Servicer has the ability to service the Mortgage
Loans as provided in this Agreement.
ARTICLE
VIII
THE
COMPANY AND SERVICER
Section
8.01 Indemnification;
Third Party Claims.
The
Company agrees to indemnify the Purchaser and hold it harmless against any
and
all claims, losses, damages, penalties, fines, forfeitures, legal fees and
related costs, judgments, and any other costs, fees and expenses that the
Purchaser may sustain in any way related to the failure of the Company or
the
Servicer to observe and perform its duties, obligations, covenants, and
agreements to service the Mortgage Loans in strict compliance with the terms
of
this Agreement. The Company agrees to indemnify the Purchaser and hold it
harmless against any and all claims, losses, damages, penalties, fines,
forfeitures, legal fees and related costs, judgments, and any other costs,
fees
and expenses that the Purchaser may sustain in any way related to the breach
of
a representation or warranty set forth in Sections 3.01 or 3.02 of this
Agreement. The Company shall immediately notify the Purchaser if a claim
is made
by a third party against Company or the Servicer with respect to this Agreement
or the Mortgage Loans, assume (with the consent of the Purchaser) the defense
of
any such claim and pay all expenses in connection therewith, including counsel
fees, whether or not such claim is settled prior to judgment, 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, and shall cause
or
direct any Servicer to, follow any lawful written instructions received from
the
Purchaser in connection with such claim. The Purchaser shall promptly reimburse
the Company for all amounts advanced by it pursuant to the two preceding
sentences except when the claim relates to the failure of the Servicer to
service and administer the Mortgages in strict compliance with the terms
of this
Agreement, the breach of representation or warranty set forth in Sections
3.01
or 3.02, or the gross negligence, bad faith or willful misconduct of Company
or
Servicer. The provisions of this Section 8.01 shall survive termination of
this
Agreement.
Section
8.02 Merger
or Consolidation of the Company or the Servicer.
The
Company will keep in full effect its existence, rights and franchises as
a
corporation under the laws of the state of its incorporation except as permitted
herein, and will obtain and preserve its qualification to do business as
a
foreign corporation in each jurisdiction in which such qualification is or
shall
be necessary to protect the validity and enforceability of this Agreement,
or
any of the Mortgage Loans and to perform its duties under this
Agreement.
60
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
whether or not related to loan servicing, shall be the successor of the Company
hereunder, without the execution or filing of any paper or any further act
on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, however, that the successor or surviving Person
shall
be an institution (i) having a GAAP net worth of not less than $25,000,000,
(ii)
the deposits of which are insured by the FDIC, NCUSIF, SAIF and/or BIF, (iii)
which is a HUD-approved mortgagee whose primary business is in origination
and
servicing of first lien mortgage loans, and (iv) who is a ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇
Mac approved seller/servicer in good standing, provided however that in lieu
of
the Company complying with clauses (iii) and (iv) herein, the Company may
cause
a Servicer to comply therewith.
The
Company shall cause the Servicer to keep in full effect its existence, rights
and franchises as a corporation under the laws of the state of its incorporation
except as permitted herein, and will obtain and preserve its qualification
to do
business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans and to perform
its duties under this Agreement, or, if the Servicer fails to meet the
requirements of this paragraph, the Company shall promptly replace such Servicer
with a Servicer who meets the requirements of this paragraph.
Any
Person into which the Servicer may be merged or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Servicer
shall be a party, or any Person succeeding to the business of the Servicer
whether or not related to loan servicing, shall be the successor of the
Servicer, 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 (i) a HUD-approved mortgagee whose primary business
is in origination and servicing of first lien mortgage loans, (ii) a ▇▇▇▇▇▇
Mae
approved seller/servicer in good standing, or (iii) a ▇▇▇▇▇▇▇ Mac approved
seller/servicer in good standing.
Section
8.03 Limitation
on Liability of the Company and Others.
Neither
the Company nor any of the 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 made in good faith; 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
liability which would otherwise be imposed by reason of negligence, bad faith
or
willful misconduct, or any breach of the terms and conditions of this Agreement.
The Company and any 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
the Purchaser 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 cause Servicer to service the Mortgage Loans
in
accordance with this Agreement and which in its reasonable opinion may involve
it in any expenses 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 reasonable legal expenses and costs
of
such action and any liability resulting therefrom shall be expenses, costs
and
liabilities for which the Purchaser will be liable, and the Company shall
be
entitled to be reimbursed therefor from the Purchaser upon written
demand.
61
Section
8.04 Company
Not to Assign or Resign.
The
Company shall not assign this Agreement or 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 reasonably 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 11.01.
Section
8.05 Transfer
of Servicing.
With
respect to the retention of the Company to cause Servicer to service the
Mortgage Loans hereunder, the Company acknowledges that the Purchaser has
acted
in reliance upon the Company's independent status, its integrity, reputation
and
financial standing and the continuance thereof. Without in any way limiting
the
generality of this Section, the Company shall not either assign this Agreement
or delegate its rights or duties hereunder or any portion thereof, or sell
or
otherwise dispose of all or substantially all of its property or assets,
without
the prior written approval of the Purchaser, which consent shall be granted
or
withheld in the Purchaser's sole discretion. Notwithstanding the provisions
of
this or the following paragraph or any other provision of this Agreement,
Company may substitute a Servicer with another Servicer with the approval
of the
Purchaser, which approval shall not be unreasonably withheld.
Without
in any way limiting the generality of this Section 8.05, in the event that
the
Company either shall assign this Agreement or delegate its duties hereunder
or
any portion thereof without (i) satisfying the requirements set forth herein
or
(ii) the prior written consent of the Purchaser, then the Purchaser shall
have
the right to terminate this Agreement, without any payment of any penalty
or
damages and without any liability whatsoever to the Company (other than with
respect to accrued but unpaid Servicing Fees and Servicing Advances remaining
unpaid) or any third party.
62
ARTICLE
IX
DEFAULT
Section
9.01 Events
of Default.
A. The
occurrence of any one or more of the following shall constitute an event
of
default under this Agreement (each, an “Event
of Default”):
(i)
any
failure by the Company to cause to be remitted 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; or
(ii)
a
Servicer ceases to be approved by either ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac as a mortgage
loan servicer for more than thirty days; or
(iii)
a
Servicer ceases to be (a) licensed to service first lien residential mortgage
loans in any jurisdiction in which a Mortgaged Property is located and such
licensing is required, and (b) qualified to transact business in any
jurisdiction where it is currently so qualified, but only to the extent such
non-qualification materially and adversely affects the Servicer’s ability to
cause its obligations hereunder to be performed; or
(iv)
a
Servicer fails to meet the eligibility criteria set forth in the last sentence
of Section 8.02.
(v)
failure on the part of the Company duly to observe or perform in any material
respect any other of the covenants or agreements on the part of the Company
set
forth in this Agreement which continues unremedied for a period of thirty
(30)
days after the date on which written notice of such failure, requiring the
same
to be remedied, shall have been given to the Company by the Purchaser;
or
(vi)
a
decree or order of a court or agency or supervisory authority having
jurisdiction for the appointment of a conservator or receiver or liquidator
in
any insolvency, bankruptcy, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation
of its
affairs, shall have been entered against the Company and such decree or order
shall have remained in force undischarged or unstayed for a period of sixty
days; or
(vii)
the
Company shall consent to the appointment of a conservator or receiver or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshalling
of
assets and liabilities or similar proceedings of or relating to the Company
or
of or relating to all or substantially all of its property; or
63
(viii)
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
or reorganization statute, make an assignment for the benefit of its creditors,
or voluntarily suspend payment of its obligations;
(ix)
the
Company attempts to assign its right to servicing compensation hereunder
or the
Company attempts, without the consent of the Purchaser, to sell or otherwise
dispose of all or substantially all of its property or assets or to assign
this
Agreement; or
(x)
the
Company fails to perform, within the required time period, its obligations
under
Section 6.04, 6.05 or 6.07, which failure continues unremedied for a period
of
fifteen (15) 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.
B. Upon
the
occurrence of any Event of Default, Purchaser may, so long as an Event of
Default shall not have been either remedied or waived in the manner provided
for
in Section 9.02 below, at its option, by notice in writing to the Company
(except in the case of an Event of Default under subclauses (vi), (vii) or
(viii) above, in which case, automatically and without notice), Purchaser
shall
be entitled, in addition to whatever rights the Purchaser may have under
Sections 3.03 and 8.01 or otherwise under this Agreement and at law or equity
or
to damages, including injunctive relief and specific performance, exercise
the
Assigned Rights (defined below) as permitted in Section 9.03 below. If the
Event
of Default is one described in subclause (ii), (iii) or (iv) above, Purchaser
may exercise the Assigned Rights as permitted in Section 9.03 below, but
only
with respect to those Mortgage Loans being serviced by the related Servicer.
If
the Event of Default is one described in subclause (i), (v), (vi), (vii),
(viii), (ix), or (x), then Purchaser may exercise the Assigned Rights as
permitted in Section 9.03 below with respect to all, but not less than all,
of
the Mortgage Loans that Company is then causing to be serviced for Purchaser
pursuant to this Agreement.
C. Immediately
upon the Purchaser exercising the Assigned Rights pursuant to clause (B)
above,
the Purchaser will have terminated the rights and servicing related obligations
(but no other obligations) of the Company under this Agreement with respect
to
the related Mortgage Loans (which may be all Mortgage Loans) and to said
Mortgage Loans and the proceeds thereof without compensating the Company
for the
same. Furthermore, all authority and power of the Company under this Agreement,
with respect to the affected Mortgage Loans, shall pass to and be vested
in the
Purchaser. Upon written request from the Purchaser, the Company shall prepare,
execute and deliver, any and all documents and other instruments, place in
such
successor's possession all affected Mortgage Files, and do or accomplish
all
other acts or things necessary or appropriate to effect the purposes of such
notice of termination, whether to complete the transfer and endorsement or
assignment of the affected Mortgage Loans and related documents, or otherwise,
at the Company's sole expense. The Company agrees to reasonably cooperate
with
the Purchaser and such successor in effecting provisions of Article 9 of
this
Agreement, 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 or any REO Property.
64
Section
9.02 Waiver
of Defaults.
The
Purchaser may waive only by written notice any default by the Company in
the
performance of its obligations hereunder and its consequences. Upon any such
waiver of a past default, such default shall cease to exist, and any Event
of
Default arising therefrom shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any subsequent
or
other default or impair any right consequent thereon except to the extent
expressly so waived in writing.
Section
9.03 Collateral
Assignment of Servicing Rights and Obligations
Subject
to the restrictions contained herein, the Company hereby makes a collateral
assignment to the Purchaser of the Company’s loan servicing-related rights and
obligations (the “Assigned Rights”) set forth in that certain Purchase,
Warranties and Servicing Agreement, dated as of July 1, 2002, by and between
the
Company and ▇▇▇▇▇▇▇ ▇▇▇, LLC (formerly Network Liquidity Acceptance Company,
LLC), as amended; provided, however, that this collateral assignment is limited
to those Mortgage Loans that the Company is causing to be serviced for Purchaser
pursuant to this Agreement. While the assignment of the Assigned Rights is
being
made as of the date of this Agreement, the Company and the Purchaser agree
that
the Purchaser will not exercise, and that the Purchaser shall not be authorized
to exercise, any of the Assigned Rights unless and until the conditions
permitting the exercise of said rights set forth in Section 9.01 are fully
met.
Any attempt by the Purchaser to exercise any of the Assigned Rights in any
manner that does not meet the requirements of this Agreement shall be null
and
void.
In
the
event and to the extent that the Purchaser exercises the Assigned Rights
with
respect to any Mortgage Loan, the Company will no longer be obligated to
cause
the related Mortgage Loan(s) to be serviced for the benefit of the Purchaser;
provided, however, that the Company will be obligated to assist the Purchaser
in
transferring the servicing of said Mortgage Loans to the Purchaser as described
in this Agreement.
ARTICLE
X
TERMINATION
Section
10.01 Termination.
The
respective obligations and responsibilities of the Company shall terminate
upon:
(i) the later of the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan and the disposition of all remaining
REO Property and the remittance of all funds due hereunder; or (ii) by mutual
consent of the Company and the Purchaser in writing; or (iii) upon the Purchaser
exercising the Assigned Rights as permitted in Article IX above, but only
to the
to the extent provided for therein.
65
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
Section
11.01 Successor
to the Company.
Prior
to
termination of Company's responsibilities and duties under this Agreement
pursuant to Sections 8.04, 9.01, 10.01 (ii) or (iii), 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 hereof 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 the
Purchaser 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 Company pursuant to the aforementioned Sections shall not become effective
until a successor shall be appointed pursuant to this Section and shall in
no
event relieve the Company of the representations and warranties made pursuant
to
Sections 3.01, 3.02 and 3.03 and the remedies available to the Purchaser
thereunder and under Section 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 resignation or termination of the Company,
or
the termination of this Agreement.
Any
successor appointed as provided herein shall execute, acknowledge and deliver
to
the Company and to the Purchaser an instrument accepting such appointment,
whereupon such successor shall become fully vested with all the rights, powers,
duties, responsibilities, obligations and liabilities of the Company, with
like
effect as if originally named as a party to this Agreement. Any termination
or
resignation of the Company or this Agreement pursuant to Section 8.04, 9.01
or
10.01 shall not affect any claims that the Purchaser may have against the
Company arising prior to any such termination or resignation.
The
Company shall promptly cause the Servicer to deliver to the successor the
funds
in the Custodial Account and the Escrow Account and the Mortgage Files and
related documents and statements held by Servicer hereunder, and the Servicer
shall account for all funds. The Company shall execute and deliver such
instruments and do such other things all as may reasonably be required to
more
fully and definitely vest and confirm in the successor all such rights, powers,
duties, responsibilities, obligations and liabilities of the Company. The
successor shall make arrangements as it may deem appropriate to reimburse
the
Company for unrecovered Servicing Advances which the successor retains hereunder
and which would otherwise have been recovered by the Company pursuant to
this
Agreement but for the appointment of the successor servicer.
66
Upon
a
successor's acceptance of appointment as such, the Purchaser
shall notify the Company via facsimile of such appointment. The Company shall
notify the Purchaser once the successor begins servicing the related Mortgage
Loan(s)
Section
11.02 Amendment.
This
Agreement may be amended from time to time by the Company and the Purchaser
by
written agreement signed by the Company and the Purchaser.
Section
11.03 Recordation
of Agreement.
To
the
extent permitted by applicable law, this Agreement is subject to recordation
in
all appropriate public offices for real property records in all the counties
or
other comparable jurisdictions in which any of the properties subject to
the
Mortgages are situated, and in any other appropriate public recording office
or
elsewhere, such recordation to be effected by the Company at the Purchaser’s
expense on direction of the Purchaser accompanied by an opinion of counsel
to
the effect that such recordation materially and beneficially affects the
interest of the Purchaser or is necessary for the administration or servicing
of
the Mortgage Loans.
Section
11.04 Governing
Law.
This
Agreement and the related Term Sheet shall be governed by and construed in
accordance with the laws of the State of New York except to the extent preempted
by Federal law. The obligations, rights and remedies of the parties hereunder
shall be determined in accordance with such laws.
Section
11.05 Notices.
Any
demands, notices or other communications permitted or required hereunder
shall
be in writing and shall be deemed conclusively to have been given if personally
delivered at or mailed by registered mail, postage prepaid, and return receipt
requested or certified mail, return receipt requested, or transmitted by
telex,
telegraph or telecopier and confirmed by a similar mailed writing, as
follows:
(i) if
to the
Company:
U.S.
Central Credit Union
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇
67
And
▇▇▇▇▇▇▇
▇▇▇, LLC
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Managing Director
With
a
copy to
U.S.
Central Credit Union
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Law Department
(ii)
if
to the Purchaser:
Greenwich
Capital Financial Products, Inc.
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
_____________
With
a
copy to:
Greenwich
Capital Financial Products, Inc.
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
Legal Department
or
such
other address as may hereafter be furnished to the other party by like notice.
Any such demand, notice or communication hereunder shall be deemed to have
been
received on the date delivered to or received at the premises of the addressee
(as evidenced, in the case of registered or certified mail, by the date noted
on
the return receipt).
Section
11.06 Severability
of Provisions.
Any
part,
provision, representation or warranty of this Agreement and the related Term
Sheet 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 that prohibits or renders void or unenforceable
any
provision hereof. If the invalidity of any part, provision, representation
or
warranty of this Agreement shall deprive any party of the economic benefit
intended to be conferred by this Agreement, the parties shall negotiate,
in good
faith, to develop a structure the economic effect of which is nearly as possible
the same as the economic effect of this Agreement without regard to such
invalidity.
68
Section
11.07 Exhibits.
The
exhibits to this Agreement are hereby incorporated and made a part hereof
and
are an integral part of this Agreement.
Section
11.08 General
Interpretive Principles.
For
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires:
(i)
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;
(ii)
accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles;
(iii)
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;
(iv)
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;
(v)
the
words
"herein", "hereof ", "hereunder" and other words of similar import refer
to this
Agreement as a whole and not to any particular provision;
(vi)
the
term
"include" or "including" shall mean without limitation by reason of enumeration;
and
(viii)
headings
of the Articles and Sections in this Agreement are for reference purposes
only
and shall not be deemed to have any substantive effect.
69
Section
11.09 Reproduction
of Documents.
This
Agreement and all documents relating thereto, including, without limitation,
(i)
consents, waivers and modifications which may hereafter be executed, (ii)
documents received by any party at the closing, and (iii) 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.
Section
11.10 Confidentiality
of Information.
Each
party recognizes that, in connection with this Agreement, it may become privy
to
non-public information regarding the financial condition, operations and
prospects of the other party. Each party agrees to keep all non-public
information regarding the other party strictly confidential, and to use all
such
information solely in order to effectuate the purpose of the Agreement, provided
that each party may provide confidential information to its employees, agents
and affiliates who have a need to know such information in order to effectuate
the transaction, provided further that such information is identified as
confidential non-public information. In addition, confidential information
may
be provided to a regulatory authority with supervisory power over Purchaser
or
the Company, provided such information is identified as confidential non-public
information. Notwithstanding the foregoing, nothing in this Section 11.10
shall
limit the Purchaser from disclosing any information in the manner in which,
and
to those parties to whom, such information is customarily provided in the
ordinary course of business of the secondary mortgage market in connection
with
marketing a Whole Loan Transfer or undertaking a Pass-Through
Transfer.
Section
11.11 Recordation
of Assignments of Mortgage.
To
the
extent permitted by applicable law, each of the Assignments 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 by and at the Purchaser’s
expense in the event recordation is either necessary under applicable law
or
requested by the Purchaser at its sole option.
Section
11.12 Assignment.
The
Purchaser shall have the right, without the consent of the Company, but with
fifteen (15) days prior written notice given to 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 and Assumption Agreement substantially
in
the form of Exhibit D hereto and the assignee or designee shall accede to
the
rights and obligations hereunder of the Purchaser with respect to such Mortgage
Loans. In no event shall Purchaser sell a partial interest in any Mortgage
Loan
without the written consent of Company, which consent shall not be unreasonably
denied. Unless otherwise specified in this Agreement in connection with a
Pass-Through Transfer, all references to the Purchaser in this Agreement
shall
be deemed to include its assignee or designee. The Company shall have the
right,
only with the consent of the Purchaser or otherwise in accordance with this
Agreement, to assign, in whole or in part, its interest under this Agreement
with respect to some or all of the Mortgage Loans.
70
Section
11.13 No
Partnership.
Nothing
herein contained shall be deemed or construed to create a co-partnership
or
joint venture between the parties hereto and the services of the Company
shall
be rendered as an independent contractor and not as agent for
Purchaser.
Section
11.14 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 this Agreement shall inure to the benefit
of
and be binding upon the Company and the Purchaser and their respective
successors and assigns.
Section
11.15 Entire
Agreement.
The
Company acknowledges that no representations, agreements or promises were
made
to the Company by the Purchaser or any of its employees other than those
representations, agreements or promises specifically contained herein and
in the
Confirmation. The Confirmation and this Agreement and the related Term Sheet
sets forth the entire understanding between the parties hereto; provided,
however, only this Agreement and the related Term Sheet shall be binding
upon
all successors of both parties. In the event of any inconsistency between
the
Confirmation and this Agreement, this Agreement and the related Term Sheet
shall
control.
Section
11.16. No
Solicitation.
(a) Company’s
Non-Solicitation. From
and
after each related Closing Date, the Company agrees that it will not take
and it
will not permit any Servicer to take any action or cause any action to be
taken
by any of such party’s employees, agents or affiliates, or by any independent
contractor acting on such party’s behalf, to solicit in any manner whatsoever
any Mortgagor to prepay or refinance a Mortgage Loan. The Company shall not
and
shall not permit any Servicer to sell the name of any Mortgagor. The Company
shall and shall cause each Servicer to use its best efforts to prevent the
sale
of the name of any Mortgagor by the Company’s or such Servicer’s wholly owned
subsidiaries and affiliates, to any person or entity for the direct or indirect
purpose of allowing such person or entity to solicit the refinancing of any
Mortgage Loan. Notwithstanding
the foregoing, solicitations that are directed to the general public at large,
including, without limitation, mass mailings based solely on commercially
acquired mailing lists and newspaper, radio, television and other mass media
advertisements, if undertaken by the Company or a Servicer or any of their
employees, agents or affiliates, shall not be prohibited under this Section
11.16(a).
71
(b) Purchaser’s
Non-solicitation.
From
and after each related Closing Date, the Purchaser agrees that it will not
take
any action or cause any action to be taken by any of its employees, agents
or
affiliates, or by any independent contractors acting on the Purchaser’s behalf,
to solicit in any manner and for any purpose whatsoever any Mortgagor. The
Purchaser shall not sell the name of any Mortgagor. The Purchaser shall use
its
best efforts to prevent the sale of the name of any Mortgagor by the Purchaser’s
wholly owned subsidiaries and affiliates, to any person or entity in either
such
case for the direct or indirect purpose of allowing such person or entity
to
solicit any Mortgagor for any purpose. Notwithstanding
the foregoing, solicitations that are directed to the general public at large,
including, without limitation, mass mailings based solely on commercially
acquired mailing lists and newspaper, radio, television and other mass media
advertisements, if undertaken by the Purchaser or any of its employees, agents
or affiliates, shall not be prohibited under this Section 11.16(b).
Section
11.17. Closing.
The
closing for the purchase and sale of the Mortgage Loans shall take place
on the
related Closing Date. 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 for the Mortgage Loans to be purchased on the related Closing Date
shall
be subject to each of the following conditions:
(a) at
least
one (1) Business Day prior to the related Closing Date, the Company shall
deliver to the Purchaser a magnetic diskette, or transmit by modem, a listing
on
a loan-level basis of the information contained in the related Mortgage Loan
Schedule attached to the related Term Sheet;
(b) all
of
the representations and warranties of the Company under this Agreement shall
be
materially true and correct as of the related Closing Date and no event shall
have occurred which, with notice or the passage of time, would constitute
a
material default under this Agreement;
(c) the
Purchaser shall have received, or the Purchaser's attorneys shall have received
in escrow, all documents required pursuant to this Agreement, the related
Term
Sheet, an opinion of counsel and an officer's certificate, all in such forms
as
are agreed upon and reasonably acceptable to the Purchaser, duly executed
by all
signatories other than the Purchaser as required pursuant to the terms
hereof;
(d) the
Company shall have delivered and released to the Purchaser (or its designee)
on
or prior to the related Closing Date all documents required pursuant to the
terms of this Agreement and the related Term Sheet; and
(e) all
other
terms and conditions of this Agreement, the related Term Sheet and the
Confirmation shall have been materially complied with.
72
Subject
to the foregoing conditions, the Purchaser shall pay to the Company on the
related Closing Date the Purchase Price, plus accrued interest pursuant to
Section 2.02 of this Agreement, by wire transfer of immediately available
funds
to the account designated by the Company.
Section
11.18. Cooperation
of Company with a Reconstitution.
The
Company and the Purchaser agree that with respect to some or all of the Mortgage
Loans, on or after the related Closing Date, on one or more dates (each a
"Reconstitution Date") at the Purchaser's sole option, the Purchaser may
effect
a sale (each, a "Reconstitution") of some or all of the Mortgage Loans then
subject to this Agreement, without recourse, to:
(a)
one or
more third party purchasers in one or more in whole loan transfers (each,
a
"Whole Loan Transfer"); or
(b) one
or
more trusts or other entities to be formed as part of one or more pass-through
transfers (each, a "Pass-Through Transfer").
The
Company agrees to execute in connection with any agreements in connection
with a
Whole Loan Transfer, an Assignment, Assumption and Recognition Agreement
substantially in the form of Exhibit D hereto, or, at Purchaser’s request, a
seller's warranties and servicing agreement or a participation and servicing
agreement or similar agreement in form and substance reasonably acceptable
to
the parties, and in connection with a Pass-Through Transfer, a pooling and
servicing agreement in form and substance reasonably acceptable to the parties,
(collectively the agreements referred to herein are designated, the
"Reconstitution Agreements"). It is understood that any such Reconstitution
Agreements will not contain any greater obligations on the part of Company
than
are contained in this Agreement.
With
respect to each Whole Loan Transfer and each Pass-Through Transfer entered
into
by the Purchaser, the Company agrees (1) to cooperate fully with the Purchaser
and any prospective purchaser with respect to all reasonable requests and
due
diligence procedures; (2) to execute, deliver and perform all Reconstitution
Agreements required by the Purchaser; (3) to restate the representations
and
warranties set forth in this Agreement as of the settlement or closing date
in
connection with such Reconstitution (each, a "Reconstitution Date"). In that
connection, the Company shall provide to such servicer or issuer, as the
case
may be, and any other participants in such Reconstitution: (i) any and all
information (including servicing portfolio information) and appropriate
verification of information (including servicing portfolio information) which
may be reasonably available to the Company, whether through letters of its
auditors and counsel or otherwise, as the Purchaser or any such other
participant shall request upon reasonable demand; and (ii) such additional
representations, warranties, covenants, opinions of counsel, letters from
auditors, and certificates of public officials or officers of the Company
as are
reasonably agreed upon by the Company and the Purchaser or any such other
participant. In connection with each Pass-Through Transfer, the Company agrees
to provide reasonable and customary indemnification to the Purchaser and
its
affiliates for disclosure contained in any offering document relating to
the
Company or its affiliates, any Servicer, the Mortgage Loans, the underwriting
standards of the Mortgage Loans and the servicing of the Mortgage Loans.
The
Purchaser shall be responsible for the costs relating to the delivery of
such
information.
73
The
Company shall not be obligated to cooperate with any Pass-Through Transfer
or
Whole Loan Transfer pursuant to this Section 11.18 unless it has received
written notice at least ten (10) days prior to the Reconstitution
Date.
All
Mortgage Loans not sold or transferred pursuant to a Reconstitution shall
remain
subject to, and serviced in accordance with the terms of, this Agreement
and the
related Term Sheet, and with respect thereto this Agreement and the related
Term
Sheet shall remain in full force and effect.
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:
U.S.
CENTRAL CREDIT UNION
Company
By:
_______________________
Name:
Title:
74
EXHIBIT
A
CONTENTS
OF MORTGAGE FILE
With
respect to each Mortgage Loan, the Mortgage File shall include each of the
following items, which shall be available for inspection by the Purchaser,
and
which shall be retained by the Company in the Servicing File or delivered
to the
Purchaser or its designee pursuant to Sections 2.04 and 2.05 of the Purchase,
Warranties and Servicing Agreement.
1.
The
original Mortgage Note endorsed "Pay to the order of
____________________________________________________, without recourse,"
and
signed via original signature in the name of the Company by an authorized
officer, with all intervening endorsements showing a complete chain of title
from the originator to the Company, together with any applicable riders.
In no
event may an endorsement be a facsimile endorsement. If the Mortgage Loan
was
acquired by the Company in a merger, the endorsement must be by "[Company],
successor by merger to the [name of predecessor]". If the Mortgage Loan was
acquired or originated by the Company while doing business under another
name,
the endorsement must be by "[Company] formerly known as [previous name]".
Mortgage Notes may be in the form of a lost note affidavit subject to Purchaser
acceptability.
2.
The
original Mortgage (together with a standard adjustable rate mortgage rider)
with
evidence of recording thereon, or a copy thereof certified by the public
recording office in which such mortgage has been recorded or, if the original
Mortgage has not been returned from the applicable public recording office,
a
true certified copy, certified by the Company.
3.
The
original or certified copy, certified by the Company, of the Primary Mortgage
Insurance Policy, if required.
4. The
original Assignment, from the Company to _____________________________________,
or in accordance with Purchaser's instructions, which assignment shall, but
for
any blanks requested by Purchaser, be in form and substance acceptable for
recording. If the Mortgage Loan was acquired or originated by the Company
while
doing business under another name, the Assignment must be by "[Company] formerly
known as [previous name]". If the Mortgage Loan was acquired by the Company
in a
merger, the endorsement must be by "[Company], successor by merger to the
[name
of predecessor]". None of the Assignments are blanket assignments of
mortgage.
5. The
original policy of title insurance, including riders and endorsements thereto,
or if the policy has not yet been issued, a written commitment or interim
binder
or preliminary report of title issued by the title insurance or escrow
company.
6. Originals
of all recorded intervening Assignments, or copies thereof, certified by
the
public recording office in which such Assignments have been recorded showing
a
complete chain of title from the originator to the Company, with evidence
of
recording thereon, or a copy thereof certified by the public recording office
in
which such Assignment has been recorded or, if the original Assignment has
not
been returned from the applicable public recording office, a true certified
copy, certified by the Company.
75
7. Originals,
or copies thereof certified by the public recording office in which such
documents have been recorded, of each assumption, extension, modification,
written assurance or substitution agreements, if applicable, or if the original
of such document has not been returned from the applicable public recording
office, a true certified copy, certified by the Company.
8. If
the
Mortgage Note or Mortgage or any other material document or instrument relating
to the Mortgage Loan has been signed by a person on behalf of the Mortgagor,
the
original or copy of power of attorney or other instrument that authorized
and
empowered such person to sign bearing evidence that such instrument has been
recorded, if so required in the appropriate jurisdiction where the Mortgaged
Property is located, or a copy thereof certified by the public recording
office
in which such instrument has been recorded or, if the original instrument
has
not been returned from the applicable public recording office, a true certified
copy, certified by the Company.
9. reserved.
10. Mortgage
Loan closing statement (Form HUD-1) and any other truth-in-lending or real
estate settlement procedure forms required by law.
11.
Residential loan application.
12. Uniform
underwriter and transmittal summary (▇▇▇▇▇▇ ▇▇▇ Form 1008) or reasonable
equivalent.
13. Credit
report on the mortgagor.
14. Business
credit report, if applicable.
15. Residential
appraisal report and attachments thereto.
16. The
original of any guarantee executed in connection with the Mortgage
Note.
17. Verification
of employment and income except for Mortgage Loans originated under a limited
documentation program, all in accordance with Company's underwriting
guidelines.
18. Verification
of acceptable evidence of source and amount of down payment, in accordance
with
Company's underwriting guidelines.
19. Photograph
of the Mortgaged Property (may be part of appraisal).
76
20. Survey
of
the Mortgaged Property, if any.
21. Sales
contract, if applicable.
22. If
available, termite report, structural engineer’s report, water portability and
septic certification.
23. Any
original security agreement, chattel mortgage or equivalent executed in
connection with the Mortgage.
24. Name
affidavit, if applicable.
Notwithstanding
anything to the contrary herein, Company may provide one certificate for
all of
the Mortgage Loans indicating that the documents were delivered for
recording.
77
EXHIBIT
B
CUSTODIAL
ACCOUNT LETTER AGREEMENT
[Date]
To: [_______________________]
(the
"Depository")
As
"Company" under the Purchase, Warranties and Servicing Agreement, dated as
of
_____________________ (the "Agreement"), we hereby authorize and request
you to
establish an account, as a Custodial Account pursuant to Section 4.04 of
the
Agreement, to be designated as "[______________________________________],
in
trust for the [Purchaser], Owner of Adjustable Rate Mortgage Loans". All
deposits in the account shall be subject to withdrawal therefrom by order
signed
by the Company. This letter is submitted to you in duplicate. Please execute
and
return one original to us.
[_____________________]
By:____________________________
Name:__________________________
Title:_________________________
The
undersigned, as "Depository", hereby certifies that the above described account
has been established under Account Number [__________], at the office of
the
depository indicated above, and agrees to honor withdrawals on such account
as
provided above. The full amount deposited at any time in the account will
be
insured up to applicable limits by the Federal Deposit Insurance Corporation
through the Bank Insurance Fund or the Savings Association Insurance Fund,
or by
the National Credit Union Share Insurance Fund or will be invested in Permitted
Investments as defined in the Agreement.
[______________________]
By:______________________________
Name:____________________________
Title:___________________________
Title:_________________________78
EXHIBIT
C
ESCROW
ACCOUNT LETTER AGREEMENT
[Date]
To: [_______________________]
(the
"Depository")
As
“Company” under the Purchase Warranties and Servicing Agreement, dated as of
____________________ (the "Agreement"), we hereby authorize and request you
to
establish an account, as an Escrow Account pursuant to Section 4.06 of the
Agreement, to be designated as "[__________________________], in trust for
the
[Purchaser], Owner of Adjustable Rate Mortgage Loans, and various Mortgagors."
All deposits in the account shall be subject to withdrawal therefrom by order
signed by the Company. This letter is submitted to you in duplicate. Please
execute and return one original to us.
[_____________________]
By:____________________________
Name:__________________________
Title:_________________________
The
undersigned, as "Depository", hereby certifies that the above described account
has been established under Account Number __________, at the office of the
depository indicated above, and agrees to honor withdrawals on such account
as
provided above. The full amount deposited at any time in the account will
be
insured up to applicable limits by the Federal Deposit Insurance Corporation
through the Bank Insurance Fund or the Savings Association Insurance Fund,
or by
the National Credit Union Share Insurance Fund or will be invested in Permitted
Investments as defined in the Agreement.
[______________________]
By:______________________________
Name:____________________________
Title:___________________________
79
EXHIBIT
D-1
FORM
OF
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
FOR
PASS-THROUGH TRANSFER
This
Assignment, Assumption and Recognition Agreement (this “Assignment Agreement”),
dated as of ___________ ___, ____, between Greenwich Capital Financial Products,
Inc., a Delaware corporation (the “Assignor”), ______________, not individually
but solely as trustee for the holders of ___________________ (the “Assignee”),
____________________ (the “Depositor”) and U.S. Central Credit Union (the
“Company”).
In
consideration of the mutual promises contained herein, the parties hereto
hereby
agree that the residential mortgage loans (the “Assigned Loans”) listed on
Attachment 1 annexed hereto (the “Assigned Loan Schedule”) sold, transferred and
assigned to Assignor pursuant to (i) the Purchase, Warranties and Servicing
Agreement, dated as of _____________ ___, ____, between Company and Assignor,
(the “Purchase Agreement”), and (ii) the Term Sheet, dated as of _____________
___, ____, between Company and Assignor (the “Term Sheet”, together with the
Purchase Agreement, the “Agreements”), between Company and Assignor, and now
sub-serviced by [INSERT NAMES OF APPLICABLE SUB-SERVICERS] (each, a “Servicer”
and collectively, the “Servicers”) for Company pursuant to the Purchase
Agreement, shall be subject to the terms of this Assignment Agreement.
Capitalized terms used herein but not defined shall have the meanings ascribed
to them in the Agreements.
Assignment
and Assumption
1. On
the
date hereof, Assignor has transferred the Assigned Mortgage Loans to the
Depositor pursuant to a [▇▇▇▇ of Sale], and the Depositor has transferred
the
Assigned Mortgage Loans to the Assignee pursuant to the Pooling and Servicing
Agreement (defined below). Concurrently with such transfers, Assignor hereby
grants, transfers and assigns to Assignee all of the right, title and interest
of Assignor in the Assigned Loans and, as they relate to the Assigned Loans,
all
of its right, title and interest in, to and under the Agreements. Assignor
specifically reserves and does not assign to Assignee any right title and
interest in, to or under any mortgage loans subject to the Agreements other
than
those set forth on Attachment 1.
Representations,
Warranties and Covenants
2. Assignor
hereby warrants and represents to, and covenants with, the Assignee and
the
Company
that:
|
(a)
|
Attached
hereto as Attachment 2 are true and accurate copies of the Agreements,
which agreements are in full force and effect as of the date hereof
and
the provisions of which have not been waived, amended or modified
in any
respect, nor has any notice of termination been given
thereunder;
|
|
(b)
|
Assignor
is the lawful owner of the Assigned Loans with the full right to
transfer
the Assigned Loans and any and all of its interests, rights and
obligations under the Agreements as they relate to the Assigned
Loans,
free from any and all claims and encumbrances; and upon the transfer
of
the Assigned Loans to Assignee as contemplated herein, Assignee
shall have
good title to each and every Assigned Loan, as well as any and
all of
Assignee's interests, rights and obligations under the Agreements
as they
relate to the Assigned Loans, free and clear of any and all liens,
claims
and encumbrances;
|
80
|
(c)
|
There
are no offsets, counterclaims or other defenses available to the
Company
with respect to the Assigned Loans or the
Agreements;
|
|
(d)
|
Assignor
has no knowledge of, and has not received notice of, any waivers
under, or
any modification of, any Assigned
Loan;
|
|
(e)
|
Assignor
is duly organized, validly existing and in good standing under
the laws of
the jurisdiction of its incorporation, and has all requisite power
and
authority to sell, transfer and assign the Assigned
Loans;
|
|
(f)
|
The
Assignor has full corporate power and authority to execute, deliver
and
perform under this Assignment Agreement, and to consummate the
transactions set forth herein. The consummation of the transactions
contemplated by this Assignment Agreement is in the ordinary course
of the
Assignor's business and will not conflict with, or result in a
breach of,
any of the terms, conditions or provisions of the Assignor's charter
or
by-laws, or any legal restriction, or any material agreement or
instrument
to which the Assignor is now a party or by which it is bound, or
result in
the violation of any law, rule, regulation, order, judgment or
decree to
which the Assignor or its property is subject. The execution, delivery
and
performance by the Assignor of this Assignment Agreement, and the
consummation by it of the transactions contemplated hereby, have
been duly
authorized by all necessary corporate action of the Assignor. This
Assignment Agreement has been duly executed and delivered by the
Assignor
and, upon the due authorization, execution and delivery by the
Assignee
and the Company, will constitute the valid and legally binding
obligation
of the Assignor enforceable against the Assignor in accordance
with its
respective terms except as enforceability thereof may be limited
by
bankruptcy, insolvency, or reorganization or other similar laws
now or
hereinafter in effect relating to creditor's rights generally and
by
general principles of equity, regardless of whether such enforceability
is
considered in a proceeding in equity or in
law;
|
|
(g)
|
No
material consent, approval, order or authorization of, or declaration,
filing or registration with, any governmental entity is required
to be
obtained or made by the Assignor in connection with the execution,
delivery or performance by the Assignor of this Assignment Agreement,
or
the consummation by it of the transactions contemplated
hereby;
|
|
(h)
|
There
is no action, suit, proceeding, investigation or litigation pending
or, to
the Assignor's knowledge, threatened, which either in any instance
or in
the aggregate, if determined adversely to the Assignor, would adversely
affect the Assignor's execution or delivery of, or the enforceability
of,
this Assignment Agreement, or the Assignor's ability to perform
its
obligations under this Assignment Agreement;
and
|
81
|
(i)
|
Neither
Assignor nor anyone acting on its behalf has offered, transferred,
pledged, sold or otherwise disposed of the Assigned Loans or any
interest
in the Assigned Loans, or solicited any offer to buy or accept
transfer,
pledge or other disposition of the Assigned Loans, or any interest
in the
Assigned Loans, or otherwise approached or negotiated with respect
to the
Assigned Loans, or any interest in the Assigned Loans, with any
Person in
any manner, or made any general solicitation by means of general
advertising or in any other manner, or taken any other action which
would
constitute a distribution of the Assigned Loans under the Securities
Act
of 1933, as amended (the "1933 Act") or which would render the
disposition
of the Assigned Loans a violation of Section 5 of the 1933 Act
or require
registration pursuant thereto.
|
| (j) | [Additional Representations of Assignor] |
| 3. | The Assignee hereby warrants and represents to, and covenants with, the Assignor and the Company that: |
|
(a)
|
The
Assignee is duly organized, validly existing and in good standing
under
the laws of the jurisdiction of its organization and has all requisite
power and authority to acquire and hold the Assigned Loans for
the benefit
of the holders of
____________________;
|
|
(b)
|
The
Assignee has full corporate power and authority to execute, deliver
and
perform under this Assignment Agreement, and to consummate the
transactions set forth herein. The consummation of the transactions
contemplated by this Assignment Agreement is in the ordinary course
of the
Assignee's business and will not conflict with, or result in a
breach of,
any of the terms, conditions or provisions of the Assignee's charter
or
by-laws, or any legal restriction, or any material agreement or
instrument
to which the Assignee is now a party or by which it is bound, or
result in
the violation of any law, rule, regulation, order, judgment or
decree to
which the Assignee or its property is subject. The execution, delivery
and
performance by the Assignee of this Assignment Agreement, and the
consummation by it of the transactions contemplated hereby, have
been duly
authorized by all necessary corporate action of the Assignee. This
Assignment Agreement has been duly executed and delivered by the
Assignee
and, upon the due authorization, execution and delivery by the
Assignor
and the Company, will constitute the valid and legally binding
obligation
of the Assignee enforceable against the Assignee in accordance
with its
respective terms except as enforceability thereof may be limited
by
bankruptcy, insolvency, or reorganization or other similar laws
now or
hereinafter in effect relating to creditor's rights generally and
by
general principles of equity, regardless of whether such enforceability
is
considered in a proceeding in equity or in
law;
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|
(c)
|
Neither
the execution and delivery of this Assignment Agreement, the purchase
of
the Assigned Loans from the Assignor, the consummation of the transactions
contemplated hereby, nor the fulfillment of or compliance with
the terms
and conditions of this Assignment Agreement will conflict with
any of the
terms, conditions or provisions of the Assignee's charter or by
laws or
materially conflict with or result in a material breach of any
of the
terms, conditions or provisions of any legal restriction or any
agreement
or instrument to which the Assignee is now a party or by which
it is
bound, or constitute a default or result in an acceleration under
any of
the foregoing, or result in the material violation of any law,
rule,
regulation, order, judgment or decree to which the Assignee or
its
property is subject;
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82
|
(d)
|
There
is no litigation, suit, proceeding or investigation pending or
threatened,
or any order or decree outstanding, which is reasonably likely
to have a
material adverse effect on the execution, delivery, performance
or
enforceability of this Assignment Agreement or which is reasonably
likely
to have a material adverse effect on the financial condition of
the
Assignee;
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(e)
|
No
material consent, approval, order or authorization of, or declaration,
filing or registration with, any governmental entity is required
to be
obtained or made by the Assignee in connection with the execution,
delivery or performance by the Assignee of this Assignment Agreement,
or
the consummation by it of the transactions contemplated
hereby;
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|
(f)
|
The
Assignee agrees to be bound, as Purchaser, by all of the terms,
covenants
and conditions of the Agreements and the Assigned Loans, and from
and
after the date hereof, the Assignee assumes for the benefit of
each of the
Company and the Assignor all of the Assignor's obligations as Purchaser
thereunder, with respect to the Assigned Loans;
and
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(g)
|
The
Assignee does not believe, nor does it have any cause or reason
to
believe, that it cannot perform in all material respects each and
every
covenant contained in this Assignment Agreement and the Agreements.
The
Assignee is solvent and the purchase of the Assigned Loans will
not cause
the Assignee to become insolvent.
|
| 4. | The Company hereby warrants and represents to, and covenants with, the Assignor, the Depositor and the Assignee that: |
|
(a)
|
Attached
hereto as Attachment 2 are true and accurate copies of the Agreements,
which agreements are in full force and effect as of the date hereof
and
the provisions of which have not been waived, amended or modified
in any
respect, nor has any notice of termination been given
thereunder;
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|
(b)
|
Company
is duly organized, validly existing and in good standing under
the laws of
the jurisdiction of its formation, and has all requisite power
and
authority to cause the Assigned Loans to be serviced and otherwise
to
perform its obligations under the
Agreements;
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(c)
|
Company
has full power and authority to execute, deliver and perform under
this
Assignment Agreement, and to consummate the transactions set forth
herein.
The consummation of the transactions contemplated by this Assignment
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 by-laws, 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 Assignment Agreement, and the consummation by it
of the
transactions contemplated hereby, have been duly authorized by
all
necessary corporate action of the Company. This Assignment 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 respective
terms
except as enforceability thereof may be limited by bankruptcy,
insolvency,
or reorganization or other similar laws now or hereinafter in effect
relating to creditors' rights generally and by general principles
of
equity, regardless of whether such enforceability is considered
in a
proceeding in equity or in law;
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83
|
(d)
|
No
material consent, approval, order or authorization of, 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 Assignment Agreement, or the consummation by it
of the
transactions contemplated hereby;
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(e)
|
Company
shall cause the establishment of a Custodial Account and an Escrow
Account
under the Purchase Agreement in favor of Assignee with respect
to the
Assigned Loans separate from the Custodial Account and the Escrow
Account
previously established under the Purchase Agreement in favor of
Assignor;
and
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(f)
|
No
event has occurred from the Closing Date to the date hereof which
would
indicate that any of the representations and warranties as to the
Assigned
Loans made by the Company in Sections 3.01 and 3.02 of the Purchase
Agreement was untrue in any material respect as of the date said
representation or warranty was
given.
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5. The
Company hereby acknowledges and agrees that the remedies available to the
Assignor, the Assignee and the Depositor in connection with any breach of
the
representations and warranties made by the Company set forth in Section 4
hereof
shall be as set forth in Subsection 3.03 of the Purchase Agreement as if
they
were set forth herein (including without limitation the repurchase and indemnity
obligations set forth therein).
6. Notwithstanding
any term hereof to the contrary, the execution and delivery of this
Agreement
by the Assignee is solely in its capacity as trustee for ________________
and
not individually, and any recourse against the Assignee in respect of any
obligations it may have under or pursuant to the terms of this Agreement
shall
be limited solely to the assets it may hold as trustee of
________________.
84
Recognition
of Assignee
7. From
and
after the date hereof, Company shall recognize the Assignee as owner of
the
Assigned Loans and will cause the Assigned Loans to be serviced by the Servicers
for the Assignee as if the Assignee and Company had entered into a separate
agreement for the servicing of the Assigned Loans in the form of the Purchase
Agreement, the terms of which are incorporated herein by reference. In addition,
Company hereby acknowledges that from and after the date hereof, the Assigned
Loans will be subject to the Pooling and Servicing Agreement (the "Pooling
and
Servicing Agreement"), dated as of ____________ ___, ____, by and among,
the
Assignee, the Depositor, the Assignor and _______________ (the "Master
Servicer"). Pursuant to the Pooling and Servicing Agreement, the Master Servicer
is required to monitor and enforce, on behalf ofthe Assignee, the performance
by
the Company of its obligations to cause the Assigned Loans to be serviced
by the
Servicers under this Assignment Agreement. Such right will include, without
limitation, the right to terminate the rights and obligations of the Company
and/or any Servicer under Article IX of the Purchase Agreement upon the
occurrence of an event of default thereunder, the right to receive all
remittances the Company is required to have made under the Purchase Agreement,
the right to receive all monthly reports and other data the Company is required
to have delivered under the Purchase Agreement, the right to examine the
books
and records of each Servicer, indemnification rights, and the right to exercise
certain rights of consent and approval relating to actions taken by the Company
in connection therewith, the Company hereby agrees that all remittances required
to be made with respect to the Assigned Loans pursuant to the Purchase Agreement
shall be made by the Servicers and will be made in accordance with the following
wire transfer instructions:
and
the
Company shall cause to be delivered all reports and other notices required
to be
delivered under the Purchase Agreement to the Assignee and to the Master
Servicer at:
It
is the
intention of the Assignor, the Company and the Assignee that this Assignment
Agreement shall be binding upon and for the benefit of the respective successors
and assigns of the parties hereto. Neither the Company nor the Assignor shall
amend or agree to amend, modify, waive, or otherwise alter any of the terms
or
provisions of the Agreements which amendment, modification, waiver or other
alteration would in any way affect the Assigned Loans without the prior written
consent of the Assignee.
Reference
is made to the information provided by the Company in writing (including
electronic format) contained in the Prospectus Supplement, including any
supplement or amendment thereto, under the captions, “The
Originators—______________” and “__________” and “The Servicers—______________”
and “__________” (the “Company Information”).
85
The
Company agrees to indemnify and hold harmless the Depositor,
each
director of the Depositor,
each
officer of the Depositor who signed the registration statement on Form S-3,
including the Base Prospectus, filed with the Securities and Exchange Commission
in accordance with the 1933 Act, ______________ (the "Underwriter"), and
each
person, if any, who controls the Depositor or the Underwriter within the
meaning
of Section 15 of the 1933 Act (collectively, the "Indemnified Party") against
any and all losses, claims, expenses, damages or liabilities to which the
Indemnified Party becomes subject, under the 1933 Act or otherwise, including,
without limitation, with respect to disputes between the parties, insofar
as
such losses, claims, expenses, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (x)
any
untrue statement of any material fact contained in the Company Information
or
omission to state therein, a 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) or (y)
any
material misstatement or omission contained in the Prospectus Supplement
regarding information or statistics therein regarding the Mortgage Loans
based
on information correctly derived by the Depositor or its affiliates and included
in the Prospectus Supplement from information provided in writing (including
electronic format) by Company to the Assignor in the final file tape in
connection with Assignor’s original purchase of the Mortgage Loans, as well as
any subsequent update of the outstanding principal of any Mortgage Loan provided
in writing (including electronic format) by Company to Assignor or Depositor;
and Company will reimburse any such reasonable legal or other expenses
reasonably incurred by the Indemnified Party in connection with investigating
or
defending any such loss, claim, damage, liability or action.
Modification
of the Purchase Agreement
8. The
Purchase Agreement, as it relates to the Assigned Loans, is hereby amended
by
the
Company and the Assignor as follows:
(a)
Section
1.01 of the Purchase Agreement shall be amended by adding the following
definitions thereto:
Nonrecoverable
Advance:
Any
portion of a Monthly Advance previously made or proposed to be made by the
Servicer pursuant to this Agreement, that, in the good faith judgment of
the
Servicer, will not or, in the case of a proposed advance, would not, be
ultimately recoverable by it from the related Mortgagor or the related
Liquidation Proceeds or otherwise with respect to the related Mortgage
Loan.
Pooling
and Servicing Agreement:
That
certain pooling and servicing agreement, dated as of _________________ ___,
____, among the Assignee, the Depositor, the Assignor and the Master
Servicer.
86
(b) Section
4.05 of the Purchase Agreement is hereby amended by replacing the period
at the
end of clause (viii) thereof with a semicolon, inserting the word “and”
thereafter and inserting the following as a new clause (ix):
(ix) to
reimburse itself for any Nonrecoverable Advances.
(c)
Section
4.13 of the Purchase Agreement shall be amended by adding the following phrase
to the end of the first sentence of the fourth paragraph:
;
provided, however, that any REO Property shall be disposed of by the Company,
or
the Company shall cause the Servicer to dispose of such REO Property, before
the
close of the third taxable year following the taxable year in which the Mortgage
Loan became an REO Property, unless the Company is otherwise directed by
the
Assignee.
[Additional
Necessary Modifications]
9. Notice
Addresses.
The
Assignee's address for purposes of all notices and correspondence related
to the
Assigned Loans and this Assignment Agreement is:
The
Assignor's address for purposes for all notices and correspondence related to
the Assigned Loans and this Assignment Agreement is:
with
a
copy to:
Company's
address for purposes of all notices and correspondence related to the Assigned
Loans and this Assignment Agreement is:
U.S.
Central Credit Union
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇. ▇▇▇
Telecopier
No.: (▇▇▇) ▇▇▇-▇▇▇▇
87
with
a
copy to:
U.S.
Central Credit Union
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Law Department
Telecopier
No: (▇▇▇) ▇▇▇-▇▇▇▇
10. Each
party will pay any commissions it has incurred and the fees of its attorneys
in
connection with the negotiations for, documenting of and closing of the
transactions contemplated by this Assignment Agreement.
11. This
Assignment Agreement shall be construed in accordance with the substantive
laws
of the State of New York, without regard to conflict of laws principles,
and the
obligations, rights and remedies of the parties hereunder shall be determined
in
accordance with such laws, except to the extent preempted by federal
law.
12. No term or provision of this Assignment 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.
13. This
Assignment Agreement shall inure to the benefit of the successors and assigns
of
the parties hereto. Any entity into which the Company, the Assignor, the
Depositor or the Assignee may be merged or consolidated shall, without the
requirement for any further writing, be deemed the Company, the Assignor,
the
Depositor or the Assignee, respectively, hereunder.
14. This
Assignment Agreement shall survive the conveyance of the Assigned Loans,
the
assignment of the Agreements to the extent of the Assigned Loans by the Assignor
to the Assignee hereunder and the termination of the Agreements.
15. This
Assignment Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and such
counterparts shall constitute one and the same instrument.
16. In
the
event that any provision of this Assignment Agreement conflicts with any
provision of the Agreements with respect to the Assigned Loans, the terms
of
this Assignment Agreement shall control.
88
IN
WITNESS WHEREOF,
the
parties have caused this Assignment Agreement to be executed by their duly
authorized officers as of the date first above written.
GREENWICH
CAPITAL FINANCIAL PRODUCTS, INC.
Assignor
By:
____________________________
Name:
Title:
_____________________________,
Not
in
its individual capacity but solely as Trustee for the holders of
____________________________________________, as Assignee
By:
____________________________
Name:
Title:
U.S.
CENTRAL CREDIT UNION
Company
By:
___________________________
Name:
Title:
Acknowledged
and Agreed:
______________________________________
Master
Servicer
By:
__________________________
Name:
Title:
Acknowledged
and Agreed:
[DEPOSITOR]
By:
__________________________
Name:
Title:
89
ATTACHMENT
1
ASSIGNED
LOAN SCHEDULE
90
ATTACHMENT
2
AGREEMENTS
91
EXHIBIT
D-2
FORM
OF
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
FOR
WHOLE
LOAN TRANSFER
This
is a
Purchase, Assignment, Assumption and Recognition Agreement (this “PAAR
Agreement”) made as of __________, 200__, among _______________ (the
“Assignor”), ___________________ (the “Assignee”), and _______________________
(the “Company”).
In
consideration of the mutual promises contained herein the parties hereto
agree
that the residential mortgage loans (the “Assigned Loans”) listed on Attachment
1 annexed hereto (the "Assigned Loan Schedule") now serviced by Company for
Assignor and its successors and assigns pursuant to the Purchase, Warranties
and
Servicing Agreement, dated as of _________, 200__, between Assignor and Company
(the “Purchase Agreement”) shall be subject to the terms of this PAAR Agreement.
Capitalized terms used herein but not defined shall have the meanings ascribed
to them in the Purchase Agreement.
Purchase,
Assignment and Assumption
1. Assignor
hereby grants, transfers and assigns to Assignee all of the right, title
and
interest of Assignor in the Assigned Loans and, as they relate to the Assigned
Loans, all of its right, title and interest in, to and under the Purchase
Agreement.
2. Simultaneously
with the execution hereof, (i) Assignee shall pay to Assignor the “Funding
Amount” as set forth in that certain letter agreement, dated as of _________
____, between Assignee and Assignor (the “Confirmation”) and (ii) Assignor, at
its expense, shall have caused to be delivered to Assignee or its designee
the
Mortgage File for each Assigned Loan in Assignor's or its custodian's
possession, as set forth in the Purchase Agreement, along with, for each
Assigned Loan, an endorsement of the Mortgage Note from the applicable Company,
in blank, and an assignment of mortgage in recordable form from the applicable
Company, in blank. Assignee shall pay the Funding Amount by wire transfer
of
immediately available funds to the account specified by Assignor. Assignee
shall
be entitled to all scheduled payments due on the Assigned Loans after
___________, 200__ and all unscheduled payments or other proceeds or other
recoveries on the Assigned Loans received on and after _____________,
200__.
Representations,
Warranties and Covenants
3. Assignor
warrants and represents to Assignee and Company as of the date
hereof:
(a) Attached
hereto as Attachment 2 is a true and accurate copy of the Purchase Agreement,
which agreement is in full force and effect as of the date hereof and the
provisions of which have not been waived, amended or modified in any respect,
nor has any notice of termination been given thereunder;
92
(b) Assignor
is the lawful owner of the Assigned Loans with full right to transfer the
Assigned Loans and any and all of its interests, rights and obligations under
the Purchase Agreement as they relate to the Assigned Loans, free and clear
from
any and all claims and encumbrances; and upon the transfer of the Assigned
Loans
to Assignee as contemplated herein, Assignee shall have good title to each
and
every Assigned Loan, as well as any and all of Assignee’s interests, rights and
obligations under the Purchase Agreement as they relate to the Assigned Loans,
free and clear of any and all liens, claims and encumbrances;
(c) There
are
no offsets, counterclaims or other defenses available to Company with respect
to
the Assigned Loans or the Purchase Agreement;
(d) Assignor
has no knowledge of, and has not received notice of, any waivers under, or
any
modification of, any Assigned Loan;
(e) Assignor
is duly organized, validly existing and in good standing under the laws of
the
jurisdiction of its incorporation, and has all requisite power and authority
to
acquire, own and sell the Assigned Loans;
(f) Assignor
has full corporate power and authority to execute, deliver and perform its
obligations under this PAAR Agreement, and to consummate the transactions
set
forth herein. The consummation of the transactions contemplated by this PAAR
Agreement is in the ordinary course of Assignor’s business and will not conflict
with, or result in a breach of, any of the terms, conditions or provisions
of
Assignor’s charter or by-laws or any legal restriction, or any material
agreement or instrument to which Assignor is now a party or by which it is
bound, or result in the violation of any law, rule, regulation, order, judgment
or decree to which Assignor or its property is subject. The execution, delivery
and performance by Assignor of this PAAR Agreement and the consummation by
it of
the transactions contemplated hereby, have been duly authorized by all necessary
corporate action on part of Assignor. This PAAR Agreement has been duly executed
and delivered by Assignor and, upon the due authorization, execution and
delivery by Assignee and Company, will constitute the valid and legally binding
obligation of Assignor enforceable against Assignor in accordance with its
terms
except as enforceability may be limited by bankruptcy, reorganization,
insolvency, moratorium or other similar laws now or hereafter in effect relating
to creditors’ rights generally, and by general principles of equity regardless
of whether enforceability is considered in a proceeding in equity or at law;
(g) No
consent, approval, order or authorization of, or declaration, filing or
registration with, any governmental entity is required to be obtained or
made by
Assignor in connection with the execution, delivery or performance by Assignor
of this PAAR Agreement, or the consummation by it of the transactions
contemplated hereby; and
(h) Neither
Assignor nor anyone acting on its behalf has offered, transferred, pledged,
sold
or otherwise disposed of the Assigned Loans or any interest in the Assigned
Loans, or solicited any offer to buy or accept a transfer, pledge or other
disposition of the Assigned Loans, or any interest in the Assigned Loans
or
otherwise approached or negotiated with respect to the Assigned Loans, or
any
interest in the Assigned Loans with any Person in any manner, or made any
general solicitation by means of general advertising or in any other manner,
or
taken any other action which would constitute a distribution of the Assigned
Loans under the Securities Act of 1933, as amended (the “1933 Act”) or which
would render the disposition of the Assigned Loans a violation of Section
5 of
the 1933 Act or require registration pursuant thereto.
93
4. Assignee
warrants and represents to, and covenants with, Assignor and Company as of
the
date hereof:
(a) Assignee
is duly organized, validly existing and in good standing under the laws of
the
jurisdiction of its organization and has all requisite power and authority
to
acquire, own and purchase the Assigned Loans;
(b) Assignee
has full corporate power and authority to execute, deliver and perform its
obligations under this PAAR Agreement, and to consummate the transactions
set
forth herein. The consummation of the transactions contemplated by this PAAR
Agreement is in the ordinary course of Assignee’s business and will not conflict
with, or result in a breach of, any of the terms, conditions or provisions
of
Assignee’s charter or by-laws or any legal restriction, or any material
agreement or instrument to which Assignee is now a party or by which it is
bound, or result in the violation of any law, rule, regulation, order, judgment
or decree to which Assignee or its property is subject. The execution, delivery
and performance by Assignee of this PAAR Agreement and the consummation by
it of
the transactions contemplated hereby, have been duly authorized by all necessary
corporate action on part of Assignee. This PAAR Agreement has been duly executed
and delivered by Assignee and, upon the due authorization, execution and
delivery by Assignor and Company, will constitute the valid and legally binding
obligation of Assignee enforceable against Assignee in accordance with its
terms
except as enforceability may be limited by bankruptcy, reorganization,
insolvency, moratorium or other similar laws now or hereafter in effect relating
to creditors’ rights generally, and by general principles of equity regardless
of whether enforceability is considered in a proceeding in equity or at law;
(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
Assignee in connection with the execution, delivery or performance by Assignee
of this PAAR Agreement, or the consummation by it of the transactions
contemplated hereby; and
(d) Assignee
agrees to be bound as “Purchaser” by all of the terms, covenants and conditions
of the Purchase Agreement with respect to the Assigned Loans, and from and
after
the date hereof, Assignee assumes for the benefit of each of Assignor and
Company all of Assignor's obligations as “Purchaser” thereunder but solely with
respect to such Assigned Loans.
5. Company
warrants and represents to, and covenant with, Assignor and Assignee as of
the
date hereof:
94
(a) Attached
hereto as Attachment 2 is a true and accurate copy of the Purchase Agreement,
which agreement is in full force and effect as of the date hereof and the
provisions of which have not been waived, amended or modified in any respect,
nor has any notice of termination been given thereunder;
(b)
Company
is duly organized, validly existing and in good standing under the laws of
the
jurisdiction of its incorporation, and has all requisite power and authority
to
service the Assigned Loans and otherwise to perform its obligations under
the
Purchase Agreement;
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(c)
|
Company
has full corporate power and authority to execute, deliver and
perform its
obligations under this PAAR Agreement, and to consummate the transactions
set forth herein. The consummation of the transactions contemplated
by
this PAAR Agreement is in the ordinary course of Company’s business and
will not conflict with, or result in a breach of, any of the terms,
conditions or provisions of Company’s charter or by-laws or any legal
restriction, or any material agreement or instrument to which 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 Company
or its
property is subject. The execution, delivery and performance by
Company of
this PAAR Agreement and the consummation by it of the transactions
contemplated hereby, have been duly authorized by all necessary
corporate
action on part of Company. This PAAR Agreement has been duly executed
and
delivered by Company, and, upon the due authorization, execution
and
delivery by Assignor and Assignee, will constitute the valid and
legally
binding obligation of Company, enforceable against 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;
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(d)
|
No
consent, approval, order or authorization of, or declaration, filing
or
registration with, any governmental entity is required to be obtained
or
made by Assignee in connection with the execution, delivery or
performance
by Company of this PAAR Agreement, or the consummation by it of
the
transactions contemplated hereby;
and
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(e)
|
No
event has occurred
from the Closing Date to the date hereof which would render the
representations and warranties as to the related Assigned Loans
made by
the Company in Sections 3.01 and 3.02 of the Purchase Agreement
to be
untrue in any material respect.
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Recognition
of Assignee
6. From
and
after the date hereof, Company shall recognize Assignee as owner of the Assigned
Loans and will service the Assigned Loans in accordance with the Purchase
Agreement. It is the intention of Assignor, Company and Assignee that this
PAAR
Agreement shall be binding upon and for the benefit of the respective successors
and assigns of the parties hereto. Neither Company nor Assignor shall amend
or
agree to amend, modify, waiver, or otherwise alter any of the terms or
provisions of the Purchase Agreement which amendment, modification, waiver
or
other alteration would in any way affect the Assigned Loans without the prior
written consent of Assignee.
95
Miscellaneous
7. All
demands, notices and communications related to the Assigned Loans, the Purchase
Agreement and this PAAR Agreement shall be in writing and shall be deemed
to
have been duly given if personally delivered at or mailed by registered mail,
postage prepaid, as follows:
(a) In
the
case of Company,
____________________
____________________
____________________
____________________
____________________
With
a copy to ______________________________________.
|
(b)
|
In
the case of Assignor,
|
____________________
____________________
____________________
____________________
____________________
(c) In
the
case of Assignee,
____________________
____________________
____________________
____________________
____________________
with
a
copy to:
96
____________________
____________________
____________________
____________________
8. Each
party will pay any commissions it has incurred and the fees of its attorneys
in
connection with the negotiations for, documenting of and closing of the
transactions contemplated by this PAAR Agreement.
9. This
PAAR
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.
10. No
term
or provision of this PAAR 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.
11. This
PAAR
Agreement shall inure to the benefit of the successors and assigns of the
parties hereto. 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.
12. This
PAAR
Agreement shall survive the conveyance of the Assigned Loans, the assignment
of
the Purchase Agreement to the extent of the Assigned Loans by Assignor to
Assignee and the termination of the Purchase Agreement.
13. This
PAAR
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.
14. In
the
event that any provision of this PAAR Agreement conflicts with any provision
of
the Purchase Agreement with respect to the Assigned Loans, the terms of this
PAAR Agreement shall control. In the event that any provision of this PAAR
Agreement conflicts with any provision of the Confirmation with respect to
the
Assigned Loans, the terms of this PAAR Agreement shall control.
[Modification
of Purchase Agreement
|
15.
|
The
Company and Assignor hereby amend the Purchase Agreement as
follows:
|
(a) The
following definitions are added to Section 1.01 of the Purchase
Agreement:
Securities
Administrator: ________________________
97
Supplemental
PMI Insurer: ________________________
Supplemental
PMI Policy: The
primary guarantee insurance policy of the Supplemental PMI Insurer attached
hereto as Exhibit J, or any successor Supplemental PMI Policy given to the
Servicer by the Assignee.
Trustee:
________________________
(b) The
following definition is amended and restated:
Insurance
Proceeds: Proceeds
of any Primary Mortgage Insurance Policy, the Supplemental PMI Policy, any
title
policy, any hazard insurance policy or any other insurance policy covering
a
Mortgage Loan or other related Mortgaged Property, including any amounts
required to be deposited in the Custodial Account pursuant to Section 4.04,
to
the extent such proceeds are not to be applied to the restoration of the
related
Mortgaged Property or released to the Mortgagor in accordance with Accepted
Servicing Practices.
(c) The
following are added as the fourth, fifth and sixth paragraphs of Section
4.08:
“In
connection with its activities as servicer, the Company agrees to prepare
and
present, on behalf of itself and the Purchaser, claims to the Supplemental
PMI
Insurer with respect to the Supplemental PMI Policy and, in this regard,
to take
such action as shall be necessary to permit recovery under any Supplemental
PMI
Policy respecting a defaulted Mortgage Loan. Pursuant to Section 4.04, any
amounts collected by the Company under any Supplemental PMI Policy shall
be
deposited in the Custodial Account, subject to withdrawal pursuant to Section
4.05.
In
accordance with the Supplemental PMI Policy, the Company shall provide to
the
Supplemental PMI Insurer any required information regarding the Mortgage
Loans.
The
Company shall provide to the [Securities Administrator] on a monthly basis
via
computer tape, or other mutually acceptable format, the unpaid principal
balance, insurer certificate number, lender loan number, and premium due
the
Supplemental PMI Insurer for each Mortgage Loan covered by the Supplemental
PMI
Policy. In addition, the Company agrees to forward to the Purchaser and the
[Securities Administrator] any statements or other reports given by the
Supplemental PMI Insurer to the Servicer in connection with a claim under
the
Supplemental PMI Policy.”
(d) Clause
(vi) of Section 6.1 is amended to read as follows:
“Servicer
ceases to be approved by either ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac as a mortgage loan
servicer for more than thirty days, or the Servicer fails to meet the servicer
eligibility requirements of the Supplemental PMI Insurer; or”]
98
IN
WITNESS WHEREOF, the parties hereto have executed this PAAR Agreement as
of the
day and year first above written.
Assignor
By:
Name:
Title:
_________________________________
Assignee
By:
Name:
Title:
_________________________________
Company
By:
Name:
Title:
99
ATTACHMENT
1
ASSIGNED
LOAN SCHEDULE
ATTACHMENT
2
EXHIBIT
E
FORM
OF
TRIAL BALANCE
EXHIBIT
G
REQUEST
FOR RELEASE OF DOCUMENTS AND RECEIPT
RE: Mortgage
Loan #___________________________________
BORROWER:__________________________________________________
PROPERTY:
__________________________________________________
Pursuant
to a Purchase, Warranties and Servicing Agreement (the "Agreement") between
the
Company and the Purchaser, the undersigned hereby certifies that he or she
is an
officer of the Company requesting release of the documents for the reason
specified below. The undersigned further certifies that:
(Check
one of the items below)
_____ On
_________________, the above captioned mortgage loan was paid in full or
that
the Company has been notified that payment in full has been or will be escrowed.
The Company hereby certifies that all amounts with respect to this loan which
are required under the Agreement have been or will be deposited in the Custodial
Account as required.
_____ The
above
captioned loan is being repurchased pursuant to the terms of the Agreement.
The
Company hereby certifies that the repurchase price has been credited to the
Custodial Account as required under the Agreement.
_____ The
above
captioned loan is being placed in foreclosure and the original documents
are
required to proceed with the foreclosure action. The Company hereby certifies
that the documents will be returned to the Purchaser in the event of
reinstatement.
_____ Other
(explain)
_______________________________________________________
_______________________________________________________
All
capitalized terms used herein and not defined shall have the meanings assigned
to them in the Agreement.
Based
on
this certification and the indemnities provided for in the Agreement, please
release to the Company all original mortgage documents in your possession
relating to this loan.
Dated:_________________
By:________________________________
Signature
___________________________________
Title
Send
documents to: _____________________________________________
_____________________________________________
_____________________________________________
Acknowledgement:
Purchaser
hereby acknowledges that all original documents previously released on the
above
captioned mortgage loan has been returned and received by the
Purchaser.
Dated:________________
By:________________________________
Signature
_______________________________
Title
EXHIBIT
H
UNDERWRITING
GUIDELINES
Underwriting
guidelines for all Mortgage Loans are set forth in the ▇▇▇▇▇▇▇ ▇▇▇, LLC,
Jumbo
Program Guide, which was last updated June 2004, a copy of which has been
delivered to the Purchaser on or before the date of the Agreement. This Jumbo
Program Guide is included and incorporated by reference herein. The Jumbo
Program Guide is subject to revision in the manner provided for therein.
Specific underwriting guidelines and requirements are set forth in the Program
Eligibility Standards section of the Jumbo Program Guide.
EXHIBIT
I
TERM
SHEET
This
TERM
SHEET (the "Term Sheet") dated _____________, between ______________________,
as
Purchaser, a __________ corporation, with offices located at
____________________________ (the "Purchaser"), and U.S. CENTRAL CREDIT UNION,
a
Kansas corporation, with offices located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ (the "Company"), is made pursuant to the terms and
conditions of that certain Purchase, Warranties and Servicing Agreement (the
"Agreement") dated as of _______________, between the Company and the Purchaser,
the provisions of which are incorporated herein as if set forth in full herein,
as such terms and conditions may be modified or supplemented hereby. All
initially capitalized terms used herein unless otherwise defined shall have
the
meanings ascribed thereto in the Agreement.
The
Purchaser hereby purchases from the Company and the Company hereby sells
to the
Purchaser, all of the Company’s right, title and interest in and to the Mortgage
Loans described on the Mortgage Loan Schedule annexed hereto as Schedule
I,
pursuant to and in accordance with the terms and conditions set forth in
the
Agreement, as same may be supplemented or modified hereby. Hereinafter, the
Company shall service the Mortgage Loans for the benefit of the Purchaser
and
all subsequent transferees of the Mortgage Loans pursuant to and in accordance
with the terms and conditions set forth in the Agreement.
1. Definitions
For
purposes of the Mortgage Loans to be sold pursuant to this Term Sheet, the
following terms shall have the following meanings:
Aggregate
Principal Balance
(as
of
the Cut-Off Date):
Closing
Date:
Custodian:
Cut-off
Date:
Initial
Weighted Average
Mortgage
Loan Remittance Rate:
Mortgage
Loan:
Purchase
Price Percentage:
Servicing
Fee Rate:
Additional
Closing Conditions:
In
addition to the conditions specified in the Agreement, the obligation of
each of
the Company and the Purchaser is subject to the fulfillment, on or prior
to the
applicable Closing Date, of the following additional conditions:
Additional
Loan Documents:
In
addition to the contents of the Mortgage File specified in the Agreement,
the
following documents shall be delivered with respect to the Mortgage Loans:
[None]
[Additional]
[Modification] of Representations and Warranties:
[In
addition to the representations and warranties set forth in the Agreement,
as of
the date hereof, the Company makes the following additional representations
and
warranties with respect to the Mortgage Loans: [Notwithstanding anything
to the
contrary set forth in the Agreement, with respect to each Mortgage Loan to
be
sold on the Closing Date, the representation and warranty set forth in Section
______ of the Agreement shall be modified to read as follows:]
Except
as
modified herein, Section ______ of the Agreement shall remain in full force
and
effect as of the date hereof.
IN
WITNESS WHEREOF, the parties hereto have caused their names to be signed
hereto
by their respective duly authorized officers as of the date first above
written.
GREENWICH
CAPITAL FINANCIAL PRODUCTS, INC.
By:__________________________________
Name:________________________________
Title:
_________________________________
U.S.
CENTRAL CREDIT UNION
By:__________________________________
Name:________________________________
Title:
_________________________________
SCHEDULE
I
MORTGAGE
LOAN SCHEDULE
AMENDMENT
to
the
PURCHASE,
WARRANTIES AND SERVICING AGREEMENT
Dated
as
of January 12, 2007
between
GREENWICH
CAPITAL FINANCIAL PRODUCTS, INC..
as
Purchaser
and
U.S.
CENTRAL FEDERAL CREDIT UNION,
as
Company
THIS
AMENDMENT (this “Amendment”) is made and entered into as of the 12th
day of
January, 2007, by and between Greenwich Capital Financial Products, Inc., a
Delaware corporation, as purchaser (the “Purchaser”) and U.S. Central Federal
Credit Union, a federal credit union, as company (the “Company”) in connection
with the Purchase, Warranties and Servicing Agreement, dated as of August 1,
2004, between the Purchaser and the Company (the “Agreement”).
RECITALS
WHEREAS,
the parties hereto have entered into the Agreement;
WHEREAS,
the Agreement provides that the parties thereto may enter into one or more
amendments to the Agreement;
WHEREAS,
the parties hereto desire to amend the Agreement as set forth in this Amendment;
and
NOW,
THEREFORE, in consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the
parties hereto agree as follows:
1. Capitalized
terms used herein and not defined herein shall have the meanings assigned to
such terms in the Agreement.
2. Article
I
of the Agreement is hereby amended effective as of the date hereof by adding
the
following definitions to Section 1.01:
Commission
or SEC:
The
United States Securities and Exchange Commission.
Company
Information:
As
defined in Section 11.18 herein.
Depositor:
With
respect to any Securitization Transaction, the Person identified in writing
to
the Company by the Purchaser as the depositor, as such term is defined in
Regulation AB, for such Securitization Transaction.
Exchange
Act:
The
Securities Exchange Act of 1934, as amended.
Prepayment
Charge:
Any
prepayment premium, penalty or charge payable by a Mortgagor in connection
with
any Principal Prepayment on a Mortgage Loan pursuant to the terms of the related
Mortgage Note.
Qualified
Correspondent:
Any Person which originated the Mortgage Loans purchased by the Company,
provided that the following conditions are satisfied: (i) such Mortgage Loans
were originated pursuant to an agreement between a wholly-owned subsidiary
of
the Company (the “Subsidiary”) and such Person that contemplated that such
Person would underwrite mortgage loans from time to time, for sale to the
Subsidiary, in accordance with underwriting guidelines designated by the Company
(“Designated Guidelines”) or guidelines that do not vary materially from such
Designated Guidelines; (ii) at the time the Subsidiary purchased the Mortgage
Loans described in clause (i) above, an agreement between the Company and the
Subsidiary existed whereby the Mortgage Loans purchased by the Subsidiary were
sold immediately to the Company; (iii) such Mortgage Loans were in fact
underwritten as described in clause (i) above and were acquired by the Company
within 180 days after origination; (iv) 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 (v) 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.
Regulation
AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as amended from time to time, and subject to such
clarification and interpretation as have been provided by the Commission in
the
adopting release (Asset-Backed Securities, Securities Act Release No. 33-8518,
70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the Commission,
or
as may be provided by the Commission or its staff from time to
time.
Securities
Act:
The
Securities Act of 1933, as amended.
Securitization
Master Servicer:
With
respect to any Securitization Transaction, the “master servicer,” if any,
identified in the related transaction documents.
Securitization
Transaction:
Any
transaction involving either (1) a sale or other transfer of some or all of
the
Mortgage Loans directly or indirectly to an issuing entity in connection with
an
issuance of publicly offered or privately placed, rated or unrated
mortgage-backed securities or (2) an issuance of publicly offered or privately
placed, rated or unrated securities, the payments on which are determined
primarily by reference to one or more portfolios of residential mortgage loans
consisting, in whole or in part, of some or all of the Mortgage
Loans.
2
Servicing
Criteria:
As of
any date of determination, the “servicing criteria” set forth in Item 1122(d) of
Regulation AB, or any amendments thereto, a summary of the requirements of
which
as of the date hereof is attached hereto as Exhibit
K
for
convenience of reference only. In the event of a conflict or inconsistency
between the terms of Exhibit
K
and the
text of Item 1122(d) of Regulation AB, the text of Item 1122(d) of Regulation
AB
shall control (or those Servicing Criteria otherwise mutually agreed to by
the
Purchaser, the Company and any Person that will be responsible for signing
any
certification required by the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 with respect to a
Securitization Transaction in response to evolving interpretations of Regulation
AB and incorporated into a revised Exhibit
K).
Static
Pool Information:
Static
pool information as described in Item 1105(a)(1)-(3) and 1105(c) of Regulation
AB.
Subcontractor:
Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of Mortgage Loans but performs one or more
discrete functions identified in Item 1122(d) of Regulation AB with respect
to
Mortgage Loans under the direction or authority of the Company or a Subservicer.
Subservicer:
Any
Person that services Mortgage Loans on behalf of the Company or any Subservicer
and is responsible for the performance (whether directly or through Subservicers
or Subcontractors) of a substantial portion of the material servicing functions
required to be performed, or caused to be performed, by the Company under this
Agreement or any Reconstitution Agreement that are identified in Item 1122(d)
of
Regulation AB. For purposes of this Agreement, the term Subservicer may include
a Servicer.
Third-Party
Originator:
Each
Person, other than a Qualified Correspondent, that originated Mortgage Loans
acquired by the Company.
Whole
Loan Transfer:
Any sale
or transfer of some or all of the Mortgage Loans by the Purchaser, other than
a
Securitization Transaction.
3. Article
I
of the Agreement is hereby amended effective as of the date hereof by deleting
in its entirety the definition of Principal Prepayment in Section 1.01 and
replacing it with the following:
Principal
Prepayment:
Any
payment or other recovery of principal on a Mortgage Loan, full or partial,
which is received in advance of its scheduled Due Date, including any Prepayment
Charge, 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.
3
4. Article
III of the Agreement is hereby amended effective as of the date hereof by
restating Section 3.01N in its entirety as follows:
N. Company
has delivered to the Purchaser financial statements for Company’s last two
complete fiscal years. All such financial information fairly presents the
pertinent results of operations and financial position for the period identified
and has been prepared in accordance with GAAP consistently applied throughout
the periods involved, except as set forth in the notes thereto. There has been
no change in the servicing policies and procedures, business, operations,
financial condition, properties or assets of the Company since the date of
the
Company’s financial information that would have a material adverse effect on its
ability to perform its obligations under this Agreement;
5. Article
III of the Agreement is hereby amended effective as of the date hereof by adding
the following new Section 3.01P:
P. The
Company hereby represents to the Purchaser, any Securitization Master Servicer
and any Depositor, as of the date on which Company Information is first provided
to the Purchaser, any Securitization Master Servicer or any Depositor and as
of
the date of each Securitization Transaction, and except as has been otherwise
disclosed in writing to the Purchaser, any Securitization Master Servicer and
any Depositor prior to such date: (1) neither the Company nor any Subservicer
is
aware of, or has received any notice of, any default, early amortization or
any
other performance trigger having occurred as to any other securitization due
to
any act or failure to act of the Company or any Subservicer; (2) no material
noncompliance with applicable servicing criteria as to any other securitization
of residential mortgage loans involving the Company or any Subservicer as
servicer has
been
disclosed or reported by the Company or any Subservicer; (3) the Company or
any
Subservicer 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; (4) no
material
changes to the Company’s or any Subservicer’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 or any Subservicer’s financial condition
that could have a material adverse impact on the performance by the Company
or
any Subservicer of its servicing obligations hereunder; (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 that would
be
material to investors in the securities issued in such Securitization
Transaction; 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.
4
6. Article
IV of the Agreement is hereby amended effective as of the date hereof by adding
the following new Section 4.15:
Section
4.15. Confirmation
If
so
requested in writing by the Purchaser, any Securitization Master Servicer or
any
Depositor on any date
following the
date
on which information is first provided to the Purchaser, any Securitization
Master Servicer or any Depositor under Section 11.18, the Company shall, within
five Business Days following such request, confirm in writing the accuracy
of
the representations and warranties set forth in Section 3.01P of this Section
or, if any such representation and warranty is not accurate as of the date
of
such request, provide reasonably adequate disclosure of the pertinent facts,
in
writing, to the requesting party.
7. Article
IV of the Agreement is hereby amended effective as of the date hereof by adding
the following new Section 4.16:
Section
4.16. Notification
of Succession.
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, any Securitization Master Servicer
and any Depositor, at least 15 calendar days prior to the effective date of
such
succession or appointment, (x) written notice to the Purchaser, any
Securitization Master Servicer and any Depositor of such succession or
appointment and (y) in writing and in form and substance reasonably satisfactory
to the Purchaser, any Securitization Master Servicer and such Depositor, all
information reasonably requested by the Purchaser, any Securitization Master
Servicer or any Depositor in order to comply with its reporting obligation
under
Item 6.02 of Form 8-K with respect to any class of asset-backed
securities.
8.
Article IV of the Agreement is hereby amended effective as of the date hereof
by
deleting the phrase “Pass-Through Transfer” as it appears in the third and
fourth paragraphs of Section 4.01 and inserting in lieu thereof the phrase
“Securitization Transaction”.
9.
Article IV of the Agreement is hereby amended effective as of the date hereof
by
inserting the following sentence immediately following the last sentence in
the
tenth paragraph of Section 4.01:
Furthermore,
the Company will also indemnify and hold harmless Purchaser, any Depositor
and
any Securitization Master Servicer from any loss, liability or expense arising
out of the Company’s use of a Subservicer or Subcontractor to perform any and
all of the servicing duties, responsibilities and obligations
hereunder.
10.
Article IV of the Agreement is hereby amended effective as of the date hereof
by
deleting in its entirety the last paragraph of Section 4.02 and replacing it
with the following:
5
The
Servicer shall not waive any Prepayment Charge or portion thereof unless: (i)
the enforceability thereof shall have been limited by bankruptcy, insolvency,
moratorium, receivership or other similar laws relating to creditors’ rights
generally, or is otherwise prohibited by law, (ii) the enforceability thereof
shall have been permanently limited due to acceleration in connection with
a
foreclosure or other involuntary payment, or (iii) in the Servicer’s reasonable
judgment, (x) such waiver relates to a default or a reasonably foreseeable
default, (y) such waiver would maximize recovery of total proceeds taking into
account the value of such Prepayment Charge and related Mortgage Loan and (z)
doing so is standard and customary in servicing Mortgage Loans (including any
waiver of a Prepayment Charge in connection with a refinancing of a Mortgage
Loan that is related to a default or reasonably foreseeable default). Except
as
provided in the preceding sentence, in no event will the Servicer waive a
Prepayment Charge in connection with a refinancing of a Mortgage Loan that
is
not related to a default or a reasonably foreseeable default. If the Servicer
waives or does not collect all or a portion of a Prepayment Charge relating
to a
Principal Prepayment in full or in part due to any action or omission of the
Servicer, other than as permitted above, the Servicer shall deposit from its
own
funds without any right of reimbursement therefor the amount of such Prepayment
Charge (or such portion thereof as had been waived for deposit) into the
Custodial Account for distribution in accordance with the terms of this
Agreement. In connection with any waiver of a Prepayment Charge by the Servicer,
the Servicer shall account for such waiver in its monthly reports as agreed
upon
by the Servicer and the Purchaser.
11. Article
IV of the Agreement is hereby amended effective as of the date hereof by
deleting in its entirety the second and third sentences of Section 4.04 and
replacing it with the following:
The
Custodial Account shall be an Eligible Account. Funds shall be deposited into
the Custodial Account within two (2) Business Days of receipt or invested in
Permitted Investments for the benefit of the Purchaser. Funds received for
Mortgage Loans that have been included in a Securitization Transaction will
be
deposited into a Custodial Account maintained at a federally insured depository
institution.
12. Article
V
of the Agreement is hereby amended effective as of the date hereof by deleting
Section 5.02 in its entirety and replacing it with the following:
Section
5.02 Statements
to the Purchaser.
The
Company shall cause the Servicer to furnish to the Securitization Master
Servicer at such address as designated by the Purchaser from time to time an
individual loan accounting report, as of the last Business Day of each month,
in
the Servicer's assigned loan number order to document Mortgage Loan payment
activity on an individual Mortgage Loan basis. With respect to each month,
the
corresponding individual loan accounting report shall be received by the
Purchaser no later than the fifth Business Day of the following month on a
disk
or tape or other computer-readable format in such format as may be mutually
agreed upon by both Purchaser and Company, and no later than the fifth Business
Day of the following month in hard copy, and shall contain the
following:
6
A. with
respect to each Mortgage Loan and each Monthly Payment, the amount of such
remittance allocable to principal (including a separate breakdown of any
Principal Prepayment, including the date of such prepayment, and any prepayment
penalties or premiums, along with a detailed report of interest on principal
prepayment amounts remitted in accordance with Section 4.04);
B. with
respect to each Mortgage Loan and each Monthly Payment, the amount of such
remittance allocable to interest;
C. with
respect to each Mortgage Loan, the amount of servicing compensation received
by
the Servicer during the prior distribution period;
D. the
Stated Principal Balance of each Mortgage Loan and the aggregate Stated
Principal Balance of all Mortgage Loans as of the first day of the distribution
period and the last day of the distribution period;
E. with
respect to each Mortgage Loan, the current Mortgage Interest Rate;
F. with
respect to each Mortgage Loan, the aggregate amount of any Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds and REO Disposition Proceeds
received during the prior distribution period;
G. with
respect to each Mortgage Loan, the amount of any Prepayment Interest Shortfalls
paid by the Company or the Servicer in accordance with Section 4.04(viii) during
the prior distribution period;
H. the
number of Mortgage Loans as of the first day of the distribution period and
the
last day of the distribution period;
I. with
respect to each Mortgage Loan, the Stated Principal Balance of each Mortgage
Loan (a) delinquent as grouped in the following intervals through final
liquidation of such Mortgage Loan: 30 to 59 days, 60 to 89 days, 90 days or
more; (b) as to which foreclosure has commenced; and (c) as to which REO
Property has been acquired;
J. with
respect to each Mortgage Loan, the amount and severity of any realized loss
following liquidation of such Mortgage Loan;
K. with
respect to each Mortgage Loan, and in the aggregate for all Mortgage Loans,
the
amount of any Monthly Advances made by the Company or the Servicer during the
prior distribution period;
L. with
respect to each Mortgage Loan, a description of any Servicing Advances made
by
the Company or the Servicer with respect to such Mortgage Loan including the
amount, terms and general purpose of such Servicing Advances, and the aggregate
amount of Servicing Advances for all Mortgage Loans during the prior
distribution period;
7
M. with
respect to each Mortgage Loan, a description of any Nonrecoverable Advances
made
by the Company or the Servicer with respect to such Mortgage Loan including
the
amount, terms and general purpose of such Nonrecoverable Advances, and the
aggregate amount of Nonrecoverable Advances for all Mortgage Loans during the
prior distribution period;
N. with
respect to each Mortgage Loan, a description of any Monthly Advances, Servicing
Advances and Nonrecoverable Advances reimbursed to the Company with respect
to
such Mortgage Loan during the prior distribution period pursuant to Section
4.05, and the source of funds for such reimbursement, and the aggregate amount
of any Monthly Advances, Servicing Advances and Nonrecoverable Advances
reimbursed to the Company for all Mortgage Loans during the prior distribution
period pursuant to Section 4.05;
O. with
respect to any Mortgage Loan, a description of any material modifications,
extensions or waivers to the terms, fees, penalties or payments of such Mortgage
Loan during the prior distribution period or that have cumulatively become
material over time;
P. a
description of any material breach of a representation or warranty set forth
in
Section 3.01 or Section 3.02 herein or of any other breach of a covenant or
condition contained herein and the status of any resolution of such
breach;
Q. with
respect to each Mortgage Loan, the Stated Principal Balance of any substitute
Mortgage Loan provided by the Company and the Stated Principal Balance of any
Mortgage Loan that has been replaced by a substitute Mortgage Loan in accordance
with Section 3.03 herein; and
R. with
respect to each Mortgage Loan, the Stated Principal Balance of any Mortgage
Loan
that has been repurchased by the Company in accordance with Section 3.03
herein.
In
addition, the Company shall provide or cause any Servicer to provide to the
Securitization Master Servicer at such address as designated by the Purchaser
from time to time such other information known or available to the Company
that
is necessary in order to provide the distribution and pool performance
information as required under Item 1121 of Regulation AB, as amended from time
to time. The Company shall also provide to the Securitization Master Servicer
at
such address as designated by the Purchaser from time to time a monthly report,
in the form of Exhibit
E
hereto,
or such other form as is mutually acceptable to the Company, the Purchaser
and
any Securitization Master Servicer, Exhibit
F
with
respect to defaulted mortgage loans and Exhibit
M,
with
respect to realized losses and gains, with each such report.
The
Company shall prepare and file any and all information statements or other
filings required to be delivered to any governmental taxing authority or to
Purchaser pursuant to any applicable law with respect to the Mortgage Loans
and
the transactions contemplated hereby. In addition, the Company shall provide
Purchaser with such information concerning the Mortgage Loans as is necessary
for Purchaser to prepare its federal income tax return as Purchaser may
reasonably request from time to time.
8
13. Article
VI of the Agreement is hereby amended effective as of the date hereof by
deleting Section 6.04 in its entirety and replacing it with the
following:
Section
6.04 Annual
Statement as to Compliance; Annual Certification.
(a) The
Company will deliver to the Purchaser, any Securitization Master Servicer and
any Depositor using
best efforts by March 1, but it no event later than March 15 of
each
calendar year beginning in 2007, an Officers’ Certificate signed by an
authorized officer of the Company (an “Annual Statement of Compliance”), to the
effect that (i) a review of the activities of the Company during the preceding
calendar year (or applicable portion thereof) and of its performance under
this
Agreement or other applicable Reconstitution Agreement during such period has
been made under such officers’ supervision and (ii) to the best of such
officers’ knowledge, based on such review, the Company has fulfilled all of its
obligations under this Agreement or other 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, specifying each such failure known to such officer and the nature
and
status thereof. Such Annual Statement of Compliance shall contain no
restrictions or limitations on its use. Copies of such statement shall be
provided by the Company to the Purchaser upon request and by the Purchaser
to
any Person identified as a prospective purchaser of the Mortgage Loans. The
Company shall cause each Servicer, Subservicer, and Subcontractor determined
by
the Company pursuant to Section 11.19 to be “participating in the servicing
function” within the meaning of Item 1122 of Regulation AB, to deliver an annual
compliance certification required of such Servicer, Subservicer or Subcontractor
under Item 1123 of Regulation AB as and when required with respect to the
Company.
(b) With
respect to any Mortgage Loans that are the subject of a Securitization
Transaction, using best efforts by March 1, but in no event later than March
15
of each calendar year beginning in 2007, an authorized officer of the Company
shall execute and deliver an officer’s certificate (an “Annual Certification”)
to the Purchaser, any Securitization Master Servicer and any related Depositor
and any other Person that will be responsible for signing the certification
required by Rules 13a-14(d) and 15d-14(d) under the Exchange Act on behalf
of an
asset-backed issuer for the benefit of each such entity and such entity’s
affiliates and the officers, directors and agents of any such entity and such
entity’s affiliates, in the form attached hereto as Exhibit
J.
In the
event that the Company has delegated any servicing responsibilities with respect
to the Mortgage Loans to a Servicer, the Company shall deliver an Annual
Certification of the Servicer as described above as to each Servicer as and
when
required with respect to the Company.
The
Company acknowledges that the parties identified in this Clause (b) may rely
on
the certification provided by the Company pursuant to this clause (b) in signing
such parties’ own forms of annual certifications and filing such with the
Commission.
(c) Failure
of the Company to timely comply with this Section 6.04 with respect to its
own
Officer’s Certificate or its own Annual Certification shall be deemed an Event
of Default, automatically, without notice and without any cure period, unless
otherwise agreed to by the Purchaser, and Purchaser may, in addition to whatever
rights the Purchaser may have under Sections 8.01 and at law or equity or to
damages, including injunctive relief and specific performance, terminate all
the
rights and obligations of the Company under this Agreement and in and to the
Mortgage Loans and the proceeds thereof without compensating the Company for
the
same, as provided in Section 9.01. Such termination shall be considered with
cause pursuant to Section 10.01 of this Agreement. Failure of the Company to
comply with this Section 6.04 with respect to an Officer’s Certificate or Annual
Certification to be executed by a Subservicer or Servicer shall be deemed an
Event of Default, automatically, without notice and without any cure period,
unless otherwise agreed to by the Purchaser, and Purchaser may, in addition
to
whatever rights the Purchaser may have under Sections 8.01 and at law or equity
or to damages, including injunctive relief and specific performance, direct
the
Company, at the Company’s expense, to terminate the servicing rights and
responsibilities of said Subservicer or Servicer with respect to the Mortgage
Loans being serviced by said Subservicer or Servicer and to replace such
Subservicer or Servicer with another Subservicer or Servicer. In the event
that
the Company does not begin to make such a replacement within ten (10) Business
Days of receiving written notice from the Purchaser directing that such
replacement be made, Purchaser may, in addition to whatever rights the Purchaser
may have under Sections 8.01 and at law or equity or to damages, including
injunctive relief and specific performance, terminate all the rights and
obligations of the Company under this Agreement and in and to the Mortgage
Loans
and the proceeds thereof without compensating the Company for the same, as
provided in Section 9.01. Such termination shall be considered with cause
pursuant to Section 10.01 of this Agreement. This paragraph shall supercede
any
other provision in this Agreement or any other agreement to the contrary. For
purposes of this paragraph only, and with respect to any Mortgage Loan that
has
been securitized, the term “Purchaser” shall include the related Securitization
Master Servicer, who may exercise the rights and remedies of the Purchaser
provided for by this paragraph; provided, however, that, for purposes of this
paragraph, the Securitization Master Servicer shall not constitute the Purchaser
for purposes of, and shall have no rights as Purchaser pursuant to, Section
8.01.
9
14. Article
VI of the Agreement is hereby amended effective as of the date hereof by
deleting Section 6.05 in its entirety and replacing it with the
following:
Section
6.05 [Reserved]
15. Article
VI of the Agreement is hereby amended effective as of the date hereof by
deleting Section 6.07 in its entirety and replacing it with the
following:
Section
6.07 Assessment
of Compliance with Servicing Criteria.
On
and
after January 1, 2006, the Company shall service and administer, and shall
cause
each Servicer to service or administer, the Mortgage Loans in accordance with
all applicable requirements of the Servicing Criteria.
With
respect to any Mortgage Loans that are the subject of a Securitization
Transaction, the Company shall deliver to the Purchaser or its designee, any
Securitization Master Servicer and any Depositor using best efforts by March
1,
but in no event later than March 15 of each calendar year beginning in 2007,
a
report (an “Assessment of Compliance”) reasonably satisfactory to the Purchaser,
any Securitization Master Servicer and any Depositor regarding the Company’s
assessment of compliance with the applicable Servicing Criteria during the
preceding calendar year as required by Rules 13a-18 and 15d-18 of the Exchange
Act and Item 1122 of Regulation AB.
10
Such
report shall be addressed to the Purchaser, such Securitization 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 K
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 and incorporated into a revised
Exhibit K) delivered to the Purchaser at the time of any Securitization
Transaction.
With
respect to any Mortgage Loans that are the subject of a Securitization
Transaction, using best efforts by March 1, but it no event later than March
15
of each calendar year beginning in 2007, the Company shall furnish to the
Purchaser or its designee, any Securitization Master Servicer and any Depositor
a report (an “Attestation Report”) by a registered public accounting firm that
attests to, and reports on, the Assessment of Compliance made by the Company,
as
required by Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122(b) of
Regulation AB, which Attestation Report must be made in accordance with Rules
1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act.
The
Company shall cause each Servicer, Subservicer, and each Subcontractor
determined by the Company pursuant to Section 11.19 to be “participating in the
servicing function” within the meaning of Item 1122 of Regulation AB, to deliver
to the Purchaser, any Securitization Master Servicer and any Depositor an
assessment of compliance and accountants’ attestation as and when provided in
this Section 6.07.
Failure
of the Company to timely comply with this Section 6.07 with respect to its
own
Assessment of Compliance or Attestation Report shall be deemed an Event of
Default, automatically, without notice and without any cure period, unless
otherwise agreed to by the Purchaser, and Purchaser may, in addition to whatever
rights the Purchaser may have under Section 8.01 and at law or equity or to
damages, including injunctive relief and specific performance, terminate all
the
rights and obligations of the Company under this Agreement and in and to the
Mortgage Loans and the proceeds thereof without compensating the Company for
the
same, as provided in Section 9.01. Such termination shall be considered with
cause pursuant to Section 10.01 of this Agreement. Failure of the Company to
comply with this Section 6.07 with respect to an Assessment of Compliance or
Attestation Report pertaining to a Servicer, Subservicer and each Subcontractor
shall be deemed an Event of Default, automatically, without notice and without
any cure period, unless otherwise agreed to by the Purchaser, and Purchaser
may,
in addition to whatever rights the Purchaser may have under Sections 8.01 and
at
law or equity or to damages, including injunctive relief and specific
performance, direct the Company, at the Company’s expense, to terminate the
servicing rights and responsibilities of said Servicer, Subservicer or
Subcontractor with respect to the Mortgage Loans being serviced by said
Servicer, Subservicer or Subcontractor and to replace such Servicer, Subservicer
or Subcontractor with another Servicer, Subservicer or Subcontractor. In the
event that the Company does not begin to make such a replacement within ten
(10)
Business Days of receiving written notice from the Purchaser directing that
such
replacement be made, Purchaser may, in addition to whatever rights the Purchaser
may have under Sections 8.01 and at law or equity or to damages, including
injunctive relief and specific performance, terminate all the rights and
obligations of the Company under this Agreement and in and to the Mortgage
Loans
and the proceeds thereof without compensating the Company for the same, as
provided in Section 9.01. Such termination shall be considered with cause
pursuant to Section 10.01 of this Agreement. This paragraph shall supercede
any
other provision in this Agreement or any other agreement to the contrary. For
purposes of this paragraph only, and with respect to any Mortgage Loan that
has
been securitized, the term “Purchaser” shall include the related Securitization
Master Servicer, who may exercise the rights and remedies of the Purchaser
provided for by this paragraph; provided, however, that, for purposes of this
paragraph, the Securitization Master Servicer shall not constitute the Purchaser
for purposes of, and shall have no rights as Purchaser pursuant to, Section
8.01.
11
Each
assessment of compliance provided by a Subservicer pursuant to the preceding
paragraph shall address each of the Servicing Criteria specified on a
certification substantially in the form of Exhibit K hereto delivered
concurrently with the appointment of such Subservicer.
16. Article
VI of the Agreement is hereby amended effective as of the date hereof by adding
the following new Section 6.08:
Section
6.08 Intent
of the Parties; Reasonableness.
The
Purchaser and the Company acknowledge and agree that the purpose of Sections
3.01P, 4.15, 4.16, 5.02, 6.04, 6.07, 11.18 and 11.19 of this Agreement is to
facilitate compliance by the Purchaser and any Depositor with the provisions
of
Regulation AB and related rules and regulations of the Commission. Although
Regulation AB is applicable by its terms only to offerings of asset-backed
securities that are 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. The Company hereby agrees to cooperate with the requests of the
Purchaser and any Depositor made in connection with such unregistered offerings
to provide such parties the information referenced in Exhibit L to this
Agreement as it pertains to the Company, any Subservicer and any
Subcontractor.
None
of
the Purchaser, any Securitization Master Servicer or 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 Securitization 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 publicly offered Securitization
Transaction, the Company shall fully cooperate with the Purchaser and any
Securitization Master Servicer to deliver to the Purchaser (including any of
its
assignees or designees), any Securitization 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
Securitization Master Servicer or any Depositor to permit the Purchaser, such
Securitization 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.
12
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.
17. Article
IX of the Agreement is hereby amended effective as of the date hereof by
inserting the following as a new second paragraph in Section
9.01(B):
Except
as
otherwise specifically provided herein, none of the Company, any Securitization
Master Servicer or any Depositor shall be entitled to terminate the rights
and
obligations of the Company or any Subservicer under this Agreement and in and
to
the Mortgage Loans and the proceeds thereof 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
Mortgage Loans involved with a Securitization Transaction.
18. Article
XI of the Agreement is hereby amended effective as of the date hereof by
deleting Section 11.04 in its entirety and replacing it with the
following:
Section
11.04. Governing
Law.
This
Agreement and each related Term Sheet shall be governed by and construed in
accordance with the laws of the State of New York without reference to its
conflict of law provisions (other than Section 5-1401 of the General Obligations
Law), and the obligations, rights and remedies of the parties hereunder shall
be
determined in accordance with such laws.
19. Article
XI of the Agreement is hereby amended effective as of the date hereof by
restating Section 11.18 in its entirety as follows:
Section
11.18. Cooperation
of Company with a Reconstitution.
The
Company and the Purchaser agree that with respect to some or all of the Mortgage
Loans, on or after the related Closing Date, on one or more dates (each a
“Reconstitution Date”) at the Purchaser's sole option, the Purchaser may effect
Reconstitution of some or all of the Mortgage Loans then subject to this
Agreement, without recourse, by way of a transfer to:
13
(a) one
or
more third party purchasers in one or more in whole loan transfers (each, a
“Whole Loan Transfer”); or
(b) one
or
more trusts or other entities to be formed as part of one or more Securitization
Transactions.
The
Company agrees to execute in connection with any agreements among the Purchaser,
the Company, and any Servicer in connection with a Whole Loan Transfer or a
Securitization Transaction, an Assignment, Assumption and Recognition Agreement
substantially in the form of Exhibit
D
hereto
or, at Purchaser’s request, a seller’s warranties and servicing agreement or a
participation and servicing agreement or similar agreement in form and substance
reasonably acceptable to the parties (the “Reconstitution Agreements”). It is
understood that any such Reconstitution Agreements will not contain any greater
obligations on the part of Company than are contained in this
Agreement.
With
respect to each Whole Loan Transfer and each Securitization Transaction entered
into by the Purchaser, the Company agrees (1) to cooperate fully with the
Purchaser and any prospective purchaser with respect to all reasonable requests
and due diligence procedures; (2) to execute, deliver and perform all
Reconstitution Agreements required by the Purchaser; (3) to restate the
representations and warranties set forth in this Agreement as of the settlement
or closing date in connection with such Reconstitution (each, a “Reconstitution
Date”).
In
addition, the Company shall provide to such servicer or issuer, as the case
may
be, and any other participants in such Reconstitution:
(i) any
and
all information and appropriate verification of information which may be
reasonably available to the Company, whether through letters of its auditors
and
counsel or otherwise, as the Purchaser or any such other participant shall
request upon reasonable demand;
(ii) such
additional representations, warranties, covenants, opinions of counsel, letters
from auditors, and certificates of public officials or officers of the Company
as are reasonably agreed upon by the Company and the Purchaser or any such
other
participant, with the Purchaser being responsible for the costs relating to
the
delivery of such information;
(iii) to
the
extent required by Regulation AB, within 5 Business Days after request by the
Purchaser, the information with respect to (A) the Company (as originator),
(B)
each Third-Party Originator of the Mortgage Loans and (C) as applicable, each
Subservicer, as required under Items 1103(a)(1), 1105, 1110, 1117 and 1119
of
Regulation AB, a summary of the requirements of which has of the date hereof
is
attached hereto as Exhibit
L
for
convenience of reference only, as determined by Purchaser in its sole reasonable
discretion. If requested by the Purchaser, this will include information about
the applicable credit-granting or underwriting criteria;
14
(iv) 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 (i) the Company, if the Company is an originator of Mortgage
Loans
(including as an acquirer of Mortgage Loans from a Qualified Correspondent),
and/or (ii) each Third-Party Originator. Such Static Pool Information shall
be
prepared 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 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;
(v) to
the
extent required by Regulation AB, within 5 Business Days after request by the
Purchaser, information with respect to the Company (as servicer) as required
by
Item 1108 of Regulation AB, a summary of the requirements of which as of the
date hereof is attached hereto as Exhibit
L
for
convenience of reference only. In the event that the Company has delegated
any
servicing responsibilities with respect to the Mortgage Loans to a Servicer
or
Subservicer, the Company shall provide the information required pursuant to
this
clause with respect to such Servicer or Subservicer;
(vi) to
the
extent required by Regulation AB, within 5 Business Days after request by the
Purchaser in writing and in form and substance reasonably satisfactory to the
Purchaser and the Depositor,
(a)
information regarding any legal proceedings pending (or known to be
contemplated) against the Company (as originator and as servicer) and each
other
originator of the Mortgage Loans and each Servicer as required by Item 1117
of
Regulation AB, a summary of the requirements of which as of the date hereof
is
attached hereto as Exhibit
L
for
convenience of reference only,
15
(b)
information regarding affiliations with respect to (i) the Company (as
originator and as servicer), (ii) each Third-Party Originator, and (iii) each
Servicer, with respect to those parties to a Securitization Transaction as
are
identified in writing by the Purchaser to the Company in advance of such
Securitization Transaction, all as required by Item 1119(a) of Regulation AB,
a
summary of the requirements of which as of the date hereof is attached hereto
as
Exhibit
L
for
convenience of reference only, and
(c)
information regarding relationships and transactions with respect to (i) the
Company (as originator and as servicer), (ii) each Third-Party Originator,
and
(iii) each Servicer, with respect to those parties to a Securitization
Transaction as are identified in writing by the Purchaser to the Company in
advance of such Securitization Transaction, all as required by Item 1119(b)
and
(c) of Regulation AB, a summary of the requirements of which as of the date
hereof is attached hereto as Exhibit
L
for
convenience of reference only;
(vii) if
so
requested by the Purchaser or any Depositor, the Company shall provide (or,
as
applicable, cause each Third-Party Originator to provide), at the expense of
the
requesting party (to the extent of any additional incremental expense associated
with delivery pursuant to this Agreement), such statements and agreed-upon
procedures letters of certified public accountants reasonably acceptable to
the
Purchaser or Depositor, as applicable, pertaining to Static Pool Information
relating to prior securitized pools for securitizations closed on or after
January 1, 2006 or, in the case of Static Pool Information with respect to
the
Company’s or Third-Party Originator’s originations or purchases, to calendar
months commencing January 1, 2006, as the Purchaser or such Depositor shall
reasonably request. Such statements and letters shall be addressed to and be
for
the benefit of such parties as the Purchaser or such Depositor shall designate,
which may include, by way of example, any Sponsor, any Depositor and any broker
dealer acting as underwriter, placement agent or initial purchaser with respect
to a Securitization Transaction. Any such statement or letter may take the
form
of a standard, generally applicable document accompanied by a reliance letter
authorizing reliance by the addressees designated by the Purchaser or such
Depositor;
(viii)
For the purpose of satisfying its reporting obligation under the Exchange Act
with respect to any class of asset-backed securities, the Company shall (or
shall cause each Subservicer and Third-Party Originator to) (i) provide prompt
notice to the Purchaser, any Securitization 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 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 regarding any Mortgage Loans in a Securitization
Transaction, and (ii) provide to the Purchaser and any Depositor a description
of such proceedings, affiliations or relationships;
16
(ix)
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
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):
(i) 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);
(ii) material
breaches of pool asset representations or warranties or transaction covenants
(Item 1121(a)(12) of Regulation AB); and
(iii) 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 to the extent such criteria pertain to substituted
or pre-funded pool assets;
If
so
requested by the Purchaser or any Depositor, the Company shall provide such
information regarding the performance or servicing of the Mortgage Loans as
is
reasonably required to facilitate preparation of distribution reports in
accordance with Item 1121 of Regulation AB. Such information shall be provided
concurrently with the monthly reports otherwise required to be delivered by
the
Company under this Agreement, commencing with the first such report due not
less
than 10 Business Days following such request; and
(x) 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.
In
the
event of a conflict or inconsistency between the terms of Exhibit
L
and the
text of the applicable Item of Regulation AB as cited above, the text of
Regulation AB, its adopting release and other public statements of the SEC
shall
control.
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
Securitization Master Servicer) 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, agents and affiliates of each of the foregoing and of the Depositor
(each, an “Indemnified Party”), and shall hold each of them harmless from and
against any claims, 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:
17
(i)(A)
any untrue statement of a material fact contained or alleged to be contained
in
any information, report, certification, data, accountants’ letter or other
material provided in written form (including electronic form) under this Section
11.18 by or on behalf of the Company, or provided under this Section 11.18
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;
(ii)
any
breach by the Company of its obligations under Sections 4.15, 4.16, 6.04, 6.07,
6.08, 11.18 or 11.19, 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 4.15, 4.16, 6.04, 6.07, 6.08, 11.18 or 11.19,
including any failure by the Company to identify pursuant to Section 11.19(b)
any Subcontractor “participating in the servicing function” within the meaning
of Item 1122 of Regulation AB;
(iii)
any
breach by the Company of a representation or warranty set forth in Sections
3.01P or 4.15 or in a writing furnished pursuant to Section 4.15 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 4.15 to the extent made as of a date subsequent to such closing date;
or
(iv)
the
negligence, bad faith or willful misconduct of the Company in connection with
its performance under the last paragraph of Section 4.02 or Sections 4.15,
4.16,
6.04, 6.07, 6.08, 11.18 or 11.19.
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.
18
In
the
case of any failure of performance described in (iii) above, 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.
The
Company shall promptly reimburse the Purchaser (or any designee of the
Purchaser, such as a Securitization 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 or any Subservicer 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.
All
Mortgage Loans not sold or transferred pursuant to a Reconstitution shall remain
subject to, and serviced in accordance with the terms of, this Agreement and
the
related Term Sheet, and with respect thereto this Agreement and the related
Term
Sheet shall remain in full force and effect.
20. Article
XI of the Agreement is hereby amended effective as of the date hereof by adding
the following new Section 11.19:
Section
11.19. Use
of
Servicers and Subcontractors.
(a) The
Company shall not hire or otherwise utilize the services of any Subservicer
to
fulfill any of the obligations of the Company as servicer under this Agreement
or any Reconstitution Agreement unless the Company complies with the provisions
of paragraph (b) of this Section 11.19. The Company shall not hire or otherwise
utilize the services of any Subcontractor, and shall not permit any Subservicer
to hire or otherwise utilize the services of any Subcontractor, to fulfill
any
of the obligations of the Company as servicer under this Agreement or any
Reconstitution Agreement unless the Company complies with the provisions of
paragraphs (c) and (d) of this Section.
(b) It
shall
not be necessary for the Company to seek the consent of the Purchaser, any
Securitization Master Servicer, any Depositor or any other Person to the
utilization of any Subservicer (or any subservicer utilized by a Subservicer).
The Company shall cause any Subservicer used by the Company (or any subservicer
used by any Subservicer) for the benefit of the Purchaser and any Depositor
to
comply with the provisions of this Section 11.19 and with Sections 3.01P, 4.15,
6.04, 6.07 and 11.18 of this Agreement to the same extent as if such Subservicer
were the Company. The Company shall be responsible for obtaining from each
Subservicer and delivering to the Purchaser, any Securitization Master Servicer
and any Depositor any Annual Statement of Compliance required to be delivered
by
such Subservicer under Section 6.04(a), any Assessment of Compliance and
Attestation Report required to be delivered by such Subservicer under Section
6.07 and any Annual Certification required under Section 6.04(b) as and when
required to be delivered.
19
(c) It
shall
not be necessary for the Company to seek the consent of the Purchaser, any
Securitization Master Servicer, any Depositor or any other Person to the
utilization of any Subcontractor. The Company shall promptly upon request
provide to the Purchaser, any Securitization Master Servicer and any Depositor
(or any designee of the Depositor, such as an administrator) a written
description (in form and substance satisfactory to the Purchaser, any
Securitization Master Servicer 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.
(d) 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 Section 6.07 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 Report
and the other certificates required to be delivered by such Subcontractor under
Section 6.07, in each case as and when required to be delivered.
21. Article
XI of the Agreement is hereby amended effective as of the date hereof by adding
the following new Section 11.20:
Section
11.20. Third
Party Beneficiary.
For
purposes of this Agreement, each Securitization Master Servicer shall be
considered a third-party beneficiary of the last paragraph of Section 4.02
and
Sections 4.15, 4.16, 6.04, 6.07, 6.08, 11.18 and 11.19 of this Agreement,
entitled to all the rights and benefits thereof as if it were a direct party
to
those Sections of this Agreement.
22. The
Agreement is hereby amended as of the date hereof by deleting Exhibit
E
in its
entirety and replacing it with Annex A hereto:
23. The
Agreement is hereby amended as of the date hereof by adding Annex B hereto
as a
new Exhibit
F:
20
24. The
Agreement is hereby amended effective as of the date hereof by adding Annex
C
hereto as a new Exhibit
J:
25. The
Agreement is hereby amended effective as of the date hereof by adding Annex
D
hereto as a new Exhibit
K:
26. The
Agreement is hereby amended effective as of the date hereof by adding Annex
E
hereto as a new Exhibit
L:
27. The
Agreement is hereby amended as of the date hereof by adding Annex F hereto
as a
new Exhibit
M:
28. References
in this Agreement to “this Agreement” or words of similar import (including
indirect references to the Agreement) shall be deemed to be references to the
Existing Agreement as amended by this Agreement. Except as expressly amended
and
modified by this Agreement, the Agreement shall continue to be, and shall
remain, in full force and effect in accordance with its terms. In the event
of a
conflict between this Agreement and any other document or agreement, including
without limitation the Existing Agreement, this Agreement shall
control.
29. The
Company and the Purchaser acknowledge and agree that the terms of this Agreement
shall be kept confidential and its contents will not be divulged to any party
without the other party’s consent, except to the extent that (a) the disclosure
of which is reasonably believed by such party to be required in connection
with
regulatory requirements or other legal requirements relating to its affairs;
(b)
disclosed to any one or more of such party’s employees, officers, directors,
agents, attorneys or accountants who would have access to the contents of this
Agreement and such data and information in the normal course of the performance
of such person’s duties for such party, to the extent such party has procedures
in effect to inform such person of the confidential nature thereof; or (c)
the
disclosure is necessary in a prospectus, prospectus supplement, or private
placement memorandum relating to a securitization of the Mortgage
Loans.
30. This
Amendment may be executed in one or more counterparts and by different parties
hereto on separate counterparts, each of which, when so executed, shall
constitute one and the same agreement. This Amendment will become effective
as
of the date first mentioned above. This Amendment shall bind and inure to the
benefit of and be enforceable by the Company and the Purchaser and the
respective permitted successors and assigns of the Company and the successors
and assigns of the Purchaser.
[SIGNATURES
ON FOLLOWING PAGE]
21
IN
WITNESS WHEREOF,
the
following parties have caused their names to be signed hereto by their
respective officers thereunto duly authorized as of the day and year first
above
written.
GREENWICH
CAPITAL FINANCIAL PRODUCTS, INC.
as
Purchaser
By:
_______________________________
Name:
Title:
U.S.
CENTRAL FEDERAL CREDIT UNION,
as
Company
By:
________________________________
Name:
Title:
22
ANNEX
A
EXHIBIT
E
REPORTING
DATA FOR MONTHLY REPORT
|
Standard
File Layout - Master Servicing
|
||||
|
Column
Name
|
Description
|
Decimal
|
Format
Comment
|
Max
Size
|
|
SER_INVESTOR_NBR
|
A
value assigned by the Servicer to define a group of loans.
|
Text
up to 10 digits
|
20
|
|
|
LOAN_NBR
|
A
unique identifier assigned to each loan by the investor.
|
Text
up to 10 digits
|
10
|
|
|
SERVICER_LOAN_NBR
|
A
unique number assigned to a loan by the Servicer. This may be different
than the LOAN_NBR.
|
Text
up to 10 digits
|
10
|
|
|
BORROWER_NAME
|
The
borrower name as received in the file. It is not separated by first
and
last name.
|
Maximum
length of 30 (Last, First)
|
30
|
|
|
SCHED_PAY_AMT
|
Scheduled
monthly principal and scheduled interest payment that a borrower
is
expected to pay, P&I constant.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
NOTE_INT_RATE
|
The
loan interest rate as reported by the Servicer.
|
4
|
Max
length of 6
|
6
|
|
NET_INT_RATE
|
The
loan gross interest rate less the service fee rate as reported by
the
Servicer.
|
4
|
Max
length of 6
|
6
|
|
SERV_FEE_RATE
|
The
servicer's fee rate for a loan as reported by the
Servicer.
|
4
|
Max
length of 6
|
6
|
|
SERV_FEE_AMT
|
The
servicer's fee amount for a loan as reported by the
Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
NEW_PAY_AMT
|
The
new loan payment amount as reported by the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
NEW_LOAN_RATE
|
The
new loan rate as reported by the Servicer.
|
4
|
Max
length of 6
|
6
|
|
ARM_INDEX_RATE
|
The
index the Servicer is using to calculate a forecasted
rate.
|
4
|
Max
length of 6
|
6
|
|
ACTL_BEG_PRIN_BAL
|
The
borrower's actual principal balance at the beginning of the processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
ACTL_END_PRIN_BAL
|
The
borrower's actual principal balance at the end of the processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
BORR_NEXT_PAY_DUE_DATE
|
The
date at the end of processing cycle that the borrower's next payment
is
due to the Servicer, as reported by Servicer.
|
MM/DD/YYYY
|
10
|
|
|
SERV_CURT_AMT_1
|
The
first curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_DATE_1
|
The
curtailment date associated with the first curtailment
amount.
|
MM/DD/YYYY
|
10
|
|
|
CURT_ADJ_
AMT_1
|
The
curtailment interest on the first curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_AMT_2
|
The
second curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_DATE_2
|
The
curtailment date associated with the second curtailment
amount.
|
MM/DD/YYYY
|
10
|
|
|
CURT_ADJ_
AMT_2
|
The
curtailment interest on the second curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_AMT_3
|
The
third curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
23
|
SERV_CURT_DATE_3
|
The
curtailment date associated with the third curtailment
amount.
|
MM/DD/YYYY
|
10
|
|
|
CURT_ADJ_AMT_3
|
The
curtailment interest on the third curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PIF_AMT
|
The
loan “paid in full” amount as reported by the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PIF_DATE
|
The
paid in full date as reported by the Servicer.
|
MM/DD/YYYY
|
10
|
|
|
Action
Code Key: 15=Bankruptcy, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇, , ▇▇▇▇▇▇, 63=Substitution,
65=Repurchase,70=REO
|
2
|
|||
|
ACTION_CODE
|
The
standard FNMA numeric code used to indicate the default/delinquent
status
of a particular loan.
|
|||
|
INT_ADJ_AMT
|
The
amount of the interest adjustment as reported by the
Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SOLDIER_SAILOR_ADJ_AMT
|
The
Soldier and Sailor Adjustment amount, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
NON_ADV_LOAN_AMT
|
The
Non Recoverable Loan Amount, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
LOAN_LOSS_AMT
|
The
amount the Servicer is passing as a loss, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_BEG_PRIN_BAL
|
The
scheduled outstanding principal amount due at the beginning of the
cycle
date to be passed through to investors.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_END_PRIN_BAL
|
The
scheduled principal balance due to investors at the end of a processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_PRIN_AMT
|
The
scheduled principal amount as reported by the Servicer for the current
cycle -- only applicable for Scheduled/Scheduled Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_NET_INT
|
The
scheduled gross interest amount less the service fee amount for the
current cycle as reported by the Servicer -- only applicable for
Scheduled/Scheduled Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
ACTL_PRIN_AMT
|
The
actual principal amount collected by the Servicer for the current
reporting cycle -- only applicable for Actual/Actual
Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
ACTL_NET_INT
|
The
actual gross interest amount less the service fee amount for the
current
reporting cycle as reported by the Servicer -- only applicable for
Actual/Actual Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PREPAY_PENALTY_
AMT
|
The
penalty amount received when a borrower prepays on his loan as reported
by
the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PREPAY_PENALTY_
WAIVED
|
The
prepayment penalty amount for the loan waived by the
servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
MOD_DATE
|
The
Effective Payment Date of the Modification for the loan.
|
MM/DD/YYYY
|
10
|
|
|
MOD_TYPE
|
The
Modification Type.
|
Varchar
- value can be alpha or numeric
|
30
|
|
|
DELINQ_P&I_ADVANCE_AMT
|
The
current outstanding principal and interest advances made by
Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
24
ANNEX
B
EXHIBIT
F
REPORTING
DATA FOR DEFAULTED LOANS
Standard
File Layout - Delinquency Reporting
|
Column/Header
Name
|
Description
|
Decimal
|
Format
Comment
|
|
SERVICER_LOAN_NBR
|
A
unique number assigned to a loan by the Servicer. This may be different
than the LOAN_NBR
|
|
|
|
LOAN_NBR
|
A
unique identifier assigned to each loan by the originator.
|
|
|
|
CLIENT_NBR
|
Servicer
Client Number
|
||
|
SERV_INVESTOR_NBR
|
Contains
a unique number as assigned by an external servicer to identify a
group of
loans in their system.
|
|
|
|
BORROWER_FIRST_NAME
|
First
Name of the Borrower.
|
||
|
BORROWER_LAST_NAME
|
Last
name of the borrower.
|
||
|
PROP_ADDRESS
|
Street
Name and Number of Property
|
|
|
|
PROP_STATE
|
The
state where the property located.
|
|
|
|
PROP_ZIP
|
Zip
code where the property is located.
|
|
|
|
BORR_NEXT_PAY_DUE_DATE
|
The
date that the borrower's next payment is due to the servicer at the
end of
processing cycle, as reported by Servicer.
|
MM/DD/YYYY
|
|
|
LOAN_TYPE
|
Loan
Type (i.e. FHA, VA, Conv)
|
|
|
|
BANKRUPTCY_FILED_DATE
|
The
date a particular bankruptcy claim was filed.
|
MM/DD/YYYY
|
|
|
BANKRUPTCY_CHAPTER_CODE
|
The
chapter under which the bankruptcy was filed.
|
|
|
|
BANKRUPTCY_CASE_NBR
|
The
case number assigned by the court to the bankruptcy
filing.
|
|
|
|
POST_PETITION_DUE_DATE
|
The
payment due date once the bankruptcy has been approved by the
courts
|
MM/DD/YYYY
|
|
|
BANKRUPTCY_DCHRG_DISM_DATE
|
The
Date The Loan Is Removed From Bankruptcy. Either by Dismissal, Discharged
and/or a Motion For Relief Was Granted.
|
MM/DD/YYYY
|
|
|
LOSS_MIT_APPR_DATE
|
The
Date The Loss Mitigation Was Approved By The Servicer
|
MM/DD/YYYY
|
|
|
LOSS_MIT_TYPE
|
The
Type Of Loss Mitigation Approved For A Loan Such As;
|
||
|
LOSS_MIT_EST_COMP_DATE
|
The
Date The Loss Mitigation /Plan Is Scheduled To End/Close
|
MM/DD/YYYY
|
|
|
LOSS_MIT_ACT_COMP_DATE
|
The
Date The Loss Mitigation Is Actually Completed
|
MM/DD/YYYY
|
|
|
FRCLSR_APPROVED_DATE
|
The
date DA Admin sends a letter to the servicer with instructions to
begin
foreclosure proceedings.
|
MM/DD/YYYY
|
|
|
ATTORNEY_REFERRAL_DATE
|
Date
File Was Referred To Attorney to Pursue Foreclosure
|
MM/DD/YYYY
|
|
|
FIRST_LEGAL_DATE
|
Notice
of 1st legal filed by an Attorney in a Foreclosure Action
|
MM/DD/YYYY
|
|
|
FRCLSR_SALE_EXPECTED_DATE
|
The
date by which a foreclosure sale is expected to occur.
|
MM/DD/YYYY
|
|
|
FRCLSR_SALE_DATE
|
The
actual date of the foreclosure sale.
|
MM/DD/YYYY
|
|
|
FRCLSR_SALE_AMT
|
The
amount a property sold for at the foreclosure sale.
|
2
|
No
commas(,) or dollar signs ($)
|
|
EVICTION_START_DATE
|
The
date the servicer initiates eviction of the borrower.
|
MM/DD/YYYY
|
|
|
EVICTION_COMPLETED_DATE
|
The
date the court revokes legal possession of the property from the
borrower.
|
MM/DD/YYYY
|
25
|
LIST_PRICE
|
The
price at which an REO property is marketed.
|
2
|
No
commas(,) or dollar signs ($)
|
|
LIST_DATE
|
The
date an REO property is listed at a particular price.
|
MM/DD/YYYY
|
|
|
OFFER_AMT
|
The
dollar value of an offer for an REO property.
|
2
|
No
commas(,) or dollar signs ($)
|
|
OFFER_DATE_TIME
|
The
date an offer is received by DA Admin or by the Servicer.
|
MM/DD/YYYY
|
|
|
REO_CLOSING_DATE
|
The
date the REO sale of the property is scheduled to close.
|
MM/DD/YYYY
|
|
|
REO_ACTUAL_CLOSING_DATE
|
Actual
Date Of REO Sale
|
MM/DD/YYYY
|
|
|
OCCUPANT_CODE
|
Classification
of how the property is occupied.
|
|
|
|
PROP_CONDITION_CODE
|
A
code that indicates the condition of the property.
|
|
|
|
PROP_INSPECTION_DATE
|
The
date a property inspection is performed.
|
MM/DD/YYYY
|
|
|
APPRAISAL_DATE
|
The
date the appraisal was done.
|
MM/DD/YYYY
|
|
|
CURR_PROP_VAL
|
The
current “as is” value of the property based on brokers price opinion or
appraisal.
|
2
|
|
|
REPAIRED_PROP_VAL
|
The
amount the property would be worth if repairs are completed pursuant
to a
broker's price opinion or appraisal.
|
2
|
|
|
If
applicable:
|
|
|
|
|
DELINQ_STATUS_CODE
|
FNMA
Code Describing Status of Loan
|
||
|
DELINQ_REASON_CODE
|
The
circumstances which caused a borrower to stop paying on a loan. Code
indicates the reason why the loan is in default for this
cycle.
|
||
|
MI_CLAIM_FILED_DATE
|
Date
Mortgage Insurance Claim Was Filed With Mortgage Insurance
Company.
|
MM/DD/YYYY
|
|
|
MI_CLAIM_AMT
|
Amount
of Mortgage Insurance Claim Filed
|
No
commas(,) or dollar signs ($)
|
|
|
MI_CLAIM_PAID_DATE
|
Date
Mortgage Insurance Company Disbursed Claim Payment
|
MM/DD/YYYY
|
|
|
MI_CLAIM_AMT_PAID
|
Amount
Mortgage Insurance Company Paid On Claim
|
2
|
No
commas(,) or dollar signs ($)
|
|
POOL_CLAIM_FILED_DATE
|
Date
Claim Was Filed With Pool Insurance Company
|
MM/DD/YYYY
|
|
|
POOL_CLAIM_AMT
|
Amount
of Claim Filed With Pool Insurance Company
|
2
|
No
commas(,) or dollar signs ($)
|
|
POOL_CLAIM_PAID_DATE
|
Date
Claim Was Settled and The Check Was Issued By The Pool
Insurer
|
MM/DD/YYYY
|
|
|
POOL_CLAIM_AMT_PAID
|
Amount
Paid On Claim By Pool Insurance Company
|
2
|
No
commas(,) or dollar signs ($)
|
|
FHA_PART_A_CLAIM_FILED_DATE
|
Date
FHA Part A Claim Was Filed With HUD
|
MM/DD/YYYY
|
|
|
FHA_PART_A_CLAIM_AMT
|
Amount
of FHA Part A Claim Filed
|
2
|
No
commas(,) or dollar signs ($)
|
|
FHA_PART_A_CLAIM_PAID_DATE
|
Date
HUD Disbursed Part A Claim Payment
|
MM/DD/YYYY
|
|
|
FHA_PART_A_CLAIM_PAID_AMT
|
Amount
HUD Paid on Part A Claim
|
2
|
No
commas(,) or dollar signs ($)
|
|
FHA_PART_B_CLAIM_FILED_DATE
|
Date
FHA Part B Claim Was Filed With HUD
|
MM/DD/YYYY
|
|
|
FHA_PART_B_CLAIM_AMT
|
Amount
of FHA Part B Claim Filed
|
2
|
No
commas(,) or dollar signs ($)
|
26
|
FHA_PART_B_CLAIM_PAID_DATE
|
Date
HUD Disbursed Part B Claim Payment
|
MM/DD/YYYY
|
|
|
FHA_PART_B_CLAIM_PAID_AMT
|
Amount
HUD Paid on Part B Claim
|
2
|
No
commas(,) or dollar signs ($)
|
|
VA_CLAIM_FILED_DATE
|
Date
VA Claim Was Filed With the Veterans Admin
|
MM/DD/YYYY
|
|
|
VA_CLAIM_PAID_DATE
|
Date
Veterans Admin. Disbursed VA Claim Payment
|
MM/DD/YYYY
|
|
|
VA_CLAIM_PAID_AMT
|
Amount
Veterans Admin. Paid on VA Claim
|
2
|
No
commas(,) or dollar signs ($)
|
Exhibit
2: Standard File Codes - Delinquency
Reporting
The
Loss
Mit Type
field
should show the approved Loss Mitigation Code as follows:
|
·
|
ASUM-
|
Approved
Assumption
|
|
|
·
|
BAP-
|
Borrower
Assistance Program
|
|
|
·
|
CO-
|
Charge
Off
|
|
|
·
|
DIL-
|
Deed-in-Lieu
|
|
|
·
|
FFA-
|
Formal
Forbearance Agreement
|
|
|
·
|
MOD-
|
Loan
Modification
|
|
|
·
|
PRE-
|
Pre-Sale
|
|
|
·
|
SS-
|
Short
Sale
|
|
|
·
|
MISC-
|
Anything
else approved by the PMI or Pool
Insurer
|
NOTE:
▇▇▇▇▇ Fargo Bank will accept alternative Loss Mitigation Types to those above,
provided that they are consistent with industry standards. If Loss Mitigation
Types other than those above are used, the Servicer must supply ▇▇▇▇▇ Fargo
Bank
with a description of each of the Loss Mitigation Types prior to sending the
file.
The
Occupant
Code
field should show the current status of the property code as
follows:
|
·
|
Mortgagor
|
|
·
|
Tenant
|
|
·
|
Unknown
|
|
·
|
Vacant
|
The
Property
Condition
field should show the last reported condition of the property as follows:
|
·
|
Damaged
|
|
·
|
Excellent
|
|
·
|
Fair
|
|
·
|
Gone
|
|
·
|
Good
|
|
·
|
Poor
|
|
·
|
Special
Hazard
|
|
·
|
Unknown
|
27
Exhibit
2: Standard File Codes - Delinquency Reporting,
Continued
The
FNMA
Delinquent Reason Code
field should show the Reason for Delinquency as follows:
|
Delinquency
Code
|
Delinquency
Description
|
|
001
|
FNMA-Death
of principal mortgagor
|
|
002
|
FNMA-Illness
of principal mortgagor
|
|
003
|
FNMA-Illness
of mortgagor’s family member
|
|
004
|
FNMA-Death
of mortgagor’s family member
|
|
005
|
FNMA-Marital
difficulties
|
|
006
|
FNMA-Curtailment
of income
|
|
007
|
FNMA-Excessive
Obligation
|
|
008
|
FNMA-Abandonment
of property
|
|
009
|
FNMA-Distant
employee transfer
|
|
011
|
FNMA-Property
problem
|
|
012
|
FNMA-Inability
to sell property
|
|
013
|
FNMA-Inability
to rent property
|
|
014
|
FNMA-Military
Service
|
|
015
|
FNMA-Other
|
|
016
|
FNMA-Unemployment
|
|
017
|
FNMA-Business
failure
|
|
019
|
FNMA-Casualty
loss
|
|
022
|
FNMA-Energy
environment costs
|
|
023
|
FNMA-Servicing
problems
|
|
026
|
FNMA-Payment
adjustment
|
|
027
|
FNMA-Payment
dispute
|
|
029
|
FNMA-Transfer
of ownership pending
|
|
030
|
FNMA-Fraud
|
|
031
|
FNMA-Unable
to contact borrower
|
|
INC
|
FNMA-Incarceration
|
28
Exhibit
2: Standard File Codes - Delinquency Reporting,
Continued
The
FNMA
Delinquent Status Code
field should show the Status of Default as follows:
|
Status
Code
|
Status
Description
|
|
09
|
Forbearance
|
|
17
|
Pre-foreclosure
Sale Closing Plan Accepted
|
|
24
|
Government
Seizure
|
|
26
|
Refinance
|
|
27
|
Assumption
|
|
28
|
Modification
|
|
29
|
Charge-Off
|
|
30
|
Third
Party Sale
|
|
31
|
Probate
|
|
32
|
Military
Indulgence
|
|
43
|
Foreclosure
Started
|
|
44
|
Deed-in-Lieu
Started
|
|
49
|
Assignment
Completed
|
|
61
|
Second
Lien Considerations
|
|
62
|
Veteran’s
Affairs-No Bid
|
|
63
|
Veteran’s
Affairs-Refund
|
|
64
|
Veteran’s
Affairs-Buydown
|
|
65
|
Chapter
7 Bankruptcy
|
|
66
|
Chapter
11 Bankruptcy
|
|
67
|
Chapter
13 Bankruptcy
|
29
ANNEX
C
EXHIBIT
J
FORM
OF
ANNUAL CERTIFICATION
Re: The
[ ] agreement dated as of
[ l,
200[ ] (the “Agreement”), among [IDENTIFY PARTIES]
I,
____________________________, the _______________________ of [NAME OF COMPANY]
(the “Company”), certify to [the Purchaser], [the Depositor], and the
[Securitization Master Servicer] [Securities Administrator] [Trustee], and
their
officers, with the knowledge and intent that they will rely upon this
certification, that:
I
have
reviewed the servicer compliance statement of the Company provided in accordance
with Item 1123 of Regulation AB (the “Compliance Statement”), the report on
assessment of the Company’s compliance with the servicing criteria set forth in
Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided in accordance
with Rules 13a-18 and 15d-18 under Securities Exchange Act of 1934, as amended
(the “Exchange Act”) and Item 1122 of Regulation AB (the “Servicing
Assessment”), the registered public accounting firm’s attestation report
provided in accordance with Rules 13a-18 and 15d-18 under the Exchange Act
and
Section 1122(b) of Regulation AB (the “Attestation Report”), and all servicing
reports, officer’s certificates and other information relating to the servicing
of the Mortgage Loans by the Company during 200[ ] that were delivered by the
Company to the [Depositor] [Securitization Master Servicer] [Securities
Administrator] [Trustee] pursuant to the Agreement (collectively, the “Company
Servicing Information”);
Based
on
my knowledge, the Company Servicing Information, taken as a whole, does not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances under
which such statements were made, not misleading with respect to the period
of
time covered by the Company Servicing Information;
Based
on
my knowledge, all of the Company Servicing Information required to be provided
by the Company under the Agreement has been provided to the [Depositor]
[Securitization Master Servicer] [Securities Administrator]
[Trustee];
I
am
responsible for reviewing the activities performed by the Company as servicer
under the Agreement, and based on my knowledge and the compliance review
conducted in preparing the Compliance Statement and except as disclosed in
the
Compliance Statement, the Servicing Assessment or the Attestation Report, the
Company has fulfilled its obligations under the Agreement in all material
respects; and
30
The
Compliance Statement required to be delivered by the Company pursuant to the
Agreement, and the Servicing Assessment and Attestation Report required to
be
provided by the Company and by any Subservicer and Subcontractor pursuant to
the
Agreement, have been provided to the [Depositor] [Securitization Master
Servicer]. Any material instances of noncompliance described in such reports
have been disclosed to the [Depositor] [Securitization Master Servicer]. Any
material instance of noncompliance with the Servicing Criteria has been
disclosed in such reports.
31
ANNEX
D
EXHIBIT
K
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by [the Company] [Name of Subservicer]
shall address, at a minimum, the criteria identified as below as “Applicable
Servicing Criteria”:
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
|
General
Servicing Considerations
|
||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
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.
|
|
|
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
|
32
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
|
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
|
33
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
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]
if
obligated under transaction
documents
|
34
ANNEX
E
EXHIBIT
L
SUMMARY
OF APPLICABLE REGULATION AB REQUIREMENTS
NOTE:
This Exhibit
L
is
provided for convenience of reference only. In the event of a conflict or
inconsistency between the terms of this Exhibit
L
and the
text of Regulation AB, the text of Regulation AB, its adopting release and
other
public statements of the SEC shall control.
Item
1105(a)(1)-(3) and (c)
-Provide
static pool information with respect to mortgage loans that were originated
or
purchased by the Company and which are of the same type as the Mortgage
Loans.
-Provide
static pool information regarding delinquencies, cumulative losses and
prepayments for prior securitized pools of the Company.
-If
the
Company has less than 3 years experience securitizing assets of the same type
as
the Mortgage Loans, provide the static pool information by vintage origination
years regarding loans originated or purchased by the Company, instead of by
prior securitized pool. A vintage origination year represents mortgage loans
originated during the same year.
-Such
static pool information shall be for the prior five years, or for so long as
the
Company has been originating or purchasing (in the case of data by vintage
origination year) or securitizing (in the case of data by prior securitized
pools) such mortgage loans if for less than five years.
-The
static pool information for each vintage origination year or prior securitized
pool, as applicable, shall be presented in monthly increments over the life
of
the mortgage loans included in the vintage origination year or prior securitized
pool.
-Provide
summary information for the original characteristics of the prior securitized
pools or vintage origination years, as applicable and material, including:
number of pool assets, original pool balance, weighted average initial loan
balance, weighted average mortgage rate, weighted average and minimum and
maximum FICO, product type, loan purpose, weighted average and minimum and
maximum LTV, distribution of loans by mortgage rate, and geographic
concentrations of 5% or more.
Item
1108(b) and (c)
Provide
the following information with respect to each Subservicer that will service,
including interim service, 20% or more of the mortgage loans in any loan group
in the securitization issued in the Securitization Transaction:
-a
description of the Subservicer’s form of organization;
35
-a
description of how long the Subservicer has been servicing residential mortgage
loans; a general discussion of the Subservicer’s experience in servicing assets
of any type as well as a more detailed discussion of the Subservicer’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 Subservicer’s portfolio of mortgage loans of
the type similar to the Mortgage Loans and information on factors related to
the
Subservicer that may be material to any analysis of the servicing of the
Mortgage Loans or the related asset-backed securities, as applicable,
including:
-a
description of any material changes to the Subservicer’s policies or procedures
in the servicing function it will perform under this Agreement and any
Reconstitution Agreements for mortgage loans of the type similar to the Mortgage
Loans during the past three years;
-information
regarding the Subservicer’s financial condition to the extent that there is a
material risk that the effect on one or more aspects of servicing resulting
from
such financial condition could have a material impact on the performance of
the
securities issued in the Securitization Transaction, or on servicing of mortgage
loans of the same asset type as the Mortgage Loans;
-any
special or unique factors involved in servicing loans of the same type as the
Mortgage Loans, and the Subservicer’s processes and procedures designed to
address such factors;
-statistical
information regarding principal and interest advances made by the Subservicer
on
the Mortgage Loans and the Subservicer’s overall servicing portfolio for the
past three years; and
-the
Subservicer’s process for handling delinquencies, losses, bankruptcies and
recoveries, such as through liquidation of REO Properties, foreclosure, sale
of
the Mortgage Loans or workouts.
-information
as to how the Subservicer 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.
Item
1110(a)
-Identify
any originator or group of affiliated originators that originated, or is
expected to originate, 10% or more of the mortgage loans in any loan group
in
the securitization issued in the Securitization Transaction.
Item
1110(b)
Provide
the following information with respect to any originator or group of affiliated
originators that originated, or is expected to originate, 20% or more of the
mortgage loans in any loan group in the securitization issued in the
Securitization Transaction:
36
-the
Company’s form of organization; and
-a
description of the Company’s origination program and how long the Company has
been engaged in originating residential mortgage loans, which description must
include a discussion of the Company’s experience in originating mortgage loans
of the same type as the Mortgage Loans and information regarding the size and
composition of the Company’s origination portfolio as well as information that
may be material to an analysis of the performance of the Mortgage Loans, such
as
the Company’s credit-granting or underwriting criteria for mortgage loans of the
same type as the Mortgage Loans.
Item
1117
-describe
any legal proceedings pending against the Company or against any of its
property, including any proceedings known to be contemplated by governmental
authorities, that may be material to the holders of the securities issued in
the
Securitization Transaction.
Item
1119(a)
-describe
any affiliations of the Company, each other originator of the Mortgage Loans
and
each Subservicer with the sponsor, depositor, issuing entity, trustee, any
originator, any other servicer, any significant obligor, enhancement or support
provider or any other material parties related to the Securitization
Transaction.
Item
1119(b)
-describe
any business relationship, agreement, arrangement, transaction or understanding
entered into outside of the ordinary course of business or on terms other than
those obtained in an arm’s length transaction with an unrelated third party,
apart from the Securitization Transaction, between the Company, each other
originator of the Mortgage Loans and each Subservicer, or their respective
affiliates, and the sponsor, depositor or issuing entity or their respective
affiliates, that exists currently or has existed during the past two years,
that
may be material to the understanding of an investor in the securities issued
in
the Securitization Transaction.
Item
1119(c)
-describe
any business relationship, agreement, arrangement, transaction or understanding
involving or relating to the Mortgage Loans or the Securitization Transaction,
including the material terms and approximate dollar amount involved, between
the
Company, each other originator of the Mortgage Loans and each Subservicer,
or
their respective affiliates and the sponsor, depositor or issuing entity or
their respective affiliates, that exists currently or has existed during the
past two years.
37
ANNEX
F
EXHIBIT
M
REPORTING
DATA FOR REALIZED LOSSES AND GAINS
Calculation
of Realized Loss/Gain Form 332- Instruction Sheet
NOTE:
Do not net or combine items. Show all expenses individually and all credits
as
separate line items. Claim packages are due on the remittance report date.
Late
submissions may result in claims not being passed until the following month.
The
Servicer is responsible to remit all funds pending loss approval and /or
resolution of any disputed items.
|
1.
|
|
2.
|
The
numbers on the 332 form correspond with the numbers listed
below.
|
Liquidation
and Acquisition Expenses:
|
1.
|
The
Actual Unpaid Principal Balance of the Mortgage Loan. For documentation,
an Amortization Schedule from date of default through liquidation
breaking
out the net interest and servicing fees advanced is
required.
|
|
2.
|
The
Total Interest Due less the aggregate amount of servicing fee that
would
have been earned if all delinquent payments had been made as agreed.
For
documentation, an Amortization Schedule from date of default through
liquidation breaking out the net interest and servicing fees advanced
is
required.
|
|
3.
|
Accrued
Servicing Fees based upon the Scheduled Principal Balance of the
Mortgage
Loan as calculated on a monthly basis. For documentation, an Amortization
Schedule from date of default through liquidation breaking out the
net
interest and servicing fees advanced is
required.
|
|
4-12.
|
Complete
as applicable. Required
documentation:
|
*
For
taxes and insurance advances - see page 2 of 332 form - breakdown required
showing period
of
coverage, base tax, interest, penalty. Advances prior to default require
evidence of servicer efforts to recover advances.
*
For
escrow advances - complete payment history
(to
calculate advances from last positive escrow balance forward)
*
Other
expenses - copies of corporate advance history showing all payments
*
REO
repairs > $1500 require explanation
*
REO
repairs >$3000 require evidence of at least 2 bids.
*
Short
Sale or Charge Off require P&L supporting the decision and WFB’s approved
Officer Certificate
*
Unusual
or extraordinary items may require further documentation.
|
13.
|
The
total of lines 1 through 12.
|
38
|
3.
|
Credits:
|
|
14-21.
|
Complete
as applicable. Required
documentation:
|
*
Copy of
the HUD 1 from the REO sale. If a 3rd
Party
Sale, bid instructions and Escrow Agent / Attorney
Letter
of
Proceeds Breakdown.
*
Copy of
EOB for any MI or gov't guarantee
*
All
other credits need to be clearly defined on the 332
form
|
22.
|
The
total of lines 14 through 21.
|
|
Please
Note:
|
For
HUD/VA loans, use line (18a) for Part A/Initial proceeds and line
(18b)
for Part B/Supplemental proceeds.
|
Total
Realized Loss (or Amount of Any Gain)
|
23.
|
The
total derived from subtracting line 22 from 13. If the amount represents
a
realized gain, show
the amount in parenthesis ( ).
|
39
Calculation
of Realized Loss/Gain Form 332
Prepared
by:
__________________ Date:
_______________
Phone:
______________________ Email
Address:_____________________
|
Servicer
Loan No.
|
Servicer
Name
|
Servicer
Address
|
▇▇▇▇▇
FARGO BANK, N.A. Loan No._____________________________
Borrower's
Name: _________________________________________________________
Property
Address: _________________________________________________________
Liquidation
Type: REO
Sale 3rd
Party
Sale Short
Sale Charge
Off
Was
this loan granted a Bankruptcy deficiency or
cramdown Yes No
If
“Yes”,
provide deficiency or cramdown amount
_______________________________
Liquidation
and Acquisition Expenses:
|
(1)
|
Actual
Unpaid Principal Balance of Mortgage Loan
|
$
______________
|
(1)
|
|
(2)
|
Interest
accrued at Net Rate
|
________________
|
(2)
|
|
(3)
|
Accrued
Servicing Fees
|
________________
|
(3)
|
|
(4)
|
Attorney's
Fees
|
________________
|
(4)
|
|
(5)
|
Taxes
(see page 2)
|
________________
|
(5)
|
|
(6)
|
Property
Maintenance
|
________________
|
(6)
|
|
(7)
|
MI/Hazard
Insurance Premiums (see page 2)
|
________________
|
(7)
|
|
(8)
|
Utility
Expenses
|
________________
|
(8)
|
|
(9)
|
Appraisal/BPO
|
________________
|
(9)
|
|
(10)
|
Property
Inspections
|
________________
|
(10)
|
|
(11)
|
FC
Costs/Other Legal Expenses
|
________________
|
(11)
|
|
(12)
|
Other
(itemize)
|
________________
|
(12)
|
|
Cash
for Keys__________________________
|
________________
|
(12)
|
|
|
HOA/Condo
Fees_______________________
|
________________
|
(12)
|
|
|
______________________________________
|
________________
|
(12)
|
|
|
Total
Expenses
|
$
_______________
|
(13)
|
|
|
Credits:
|
|||
|
(14)
|
Escrow
Balance
|
$
_______________
|
(14)
|
|
(15)
|
HIP
Refund
|
________________
|
(15)
|
|
(16)
|
Rental
Receipts
|
________________
|
(16)
|
|
(17)
|
Hazard
Loss Proceeds
|
________________
|
(17)
|
|
(18)
|
Primary
Mortgage Insurance / Gov’t Insurance
|
________________
|
(18a)
HUD Part A
|
|
________________
|
(18b)
HUD Part B
|
||
|
(19)
|
Pool
Insurance Proceeds
|
________________
|
(19)
|
|
(20)
|
Proceeds
from Sale of Acquired Property
|
________________
|
(20)
|
|
(21)
|
Other
(itemize)
|
________________
|
(21)
|
|
_________________________________________
|
________________
|
(21)
|
|
|
Total
Credits
|
$________________
|
(22)
|
|
|
Total
Realized Loss (or Amount of Gain)
|
$________________
|
(23)
|
|
40
Escrow
Disbursement Detail
|
Type
(Tax
/Ins.)
|
Date
Paid
|
Period
of Coverage
|
Total
Paid
|
Base
Amount
|
Penalties
|
Interest
|
|
|
||||||
|
|
||||||
|
|
||||||
|
|
41