EXHIBIT 4.1
STRUCTURED ASSET MORTGAGE INVESTMENTS II INC.,
DEPOSITOR
U.S. BANK, NATIONAL ASSOCIATION,
TRUSTEE
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
MASTER SERVICER AND SECURITIES ADMINISTRATOR
and
EMC MORTGAGE CORPORATION
SELLER AND COMPANY
POOLING AND SERVICING AGREEMENT
Dated as of December 1, 2005
Structured Asset Mortgage Investments II Inc.
Prime Mortgage Trust, Certificates
Series 2005-5
TABLE OF CONTENTS
ARTICLE I
Definitions
Section 1.01 Definitions
ARTICLE II
Conveyance of Mortgage Loans; Original Issuance of Certificates
Section 2.01 Conveyance of Mortgage Loans to Trustee
Section 2.02 Acceptance of Mortgage Loans and Underlying Certificates by
Trustee
Section 2.03 Assignment of Interest in the Mortgage Loan Purchase
Agreement
Section 2.04 Substitution of Mortgage Loans
Section 2.05 Issuance of Certificates
Section 2.06 Representations and Warranties Concerning the Depositor
ARTICLE III
Administration of the Trust Fund and Servicing of Mortgage Loans
Section 3.01 Master Servicer and Securities Administrator
Section 3.02 REMIC-Related Covenants
Section 3.03 Monitoring of Servicers
Section 3.04 Fidelity Bond
Section 3.05 Power to Act; Procedures
Section 3.06 Due-on-Sale Clauses; Assumption Agreements
Section 3.07 Release of Mortgage Files
Section 3.08 Documents, Records and Funds in Possession of Master
Servicer to Be Held for Trustee
Section 3.09 Standard Hazard Insurance and Flood Insurance Policies
Section 3.10 Presentment of Claims and Collection of Proceeds
Section 3.11 Maintenance of the Primary Mortgage Insurance Policies
Section 3.12 Trustee to Retain Possession of Certain Insurance Policies
and Documents
Section 3.13 Realization Upon Defaulted Mortgage Loans
Section 3.14 Compensation for the Master Servicer
Section 3.15 REO Property
Section 3.16 Annual Officer's Certificate as to Compliance
Section 3.17 Annual Independent Accountant's Servicing Report
Section 3.18 Reports Filed with Securities and Exchange Commission
Section 3.19 [Reserved]
Section 3.20 UCC
Section 3.21 Optional Purchase of Defaulted Mortgage Loans
ARTICLE IV
Accounts
Section 4.01 Protected Account
Section 4.02 Master Servicer Collection Account
Section 4.03 Permitted Withdrawals and Transfers from the Master Servicer
Collection Account
Section 4.04 Distribution Account
Section 4.05 Permitted Withdrawals and Transfers from the Distribution
Account
ARTICLE V
Certificates
Section 5.01 Certificates
Section 5.02 Registration of Transfer and Exchange of Certificates
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates
Section 5.04 Persons Deemed Owners
Section 5.05 Transfer Restrictions on Residual Certificates
Section 5.06 Restrictions on Transferability of Non-Offered Certificates
Section 5.07 ERISA Restrictions
Section 5.08 Rule 144A Information
Section 5.09 Appointment of Paying Agent and Certificate Registrar
ARTICLE VI
Payments to Certificateholders
Section 6.01 Distributions on the Certificates
Section 6.02 [Reserved.]
Section 6.03 Allocation of Losses
Section 6.04 Payments
Section 6.05 Statements to Certificateholders
Section 6.06 Monthly Advances
Section 6.07 Compensating Interest Payments
ARTICLE VII
The Master Servicer-
Section 7.01 Liabilities of the Master Servicer
Section 7.02 Merger or Consolidation of the Master Servicer
Section 7.03 Indemnification of the Trustee, the Master Servicer and the
Securities Administrator
Section 7.04 Limitations on Liability of the Master Servicer and Others
Section 7.05 Master Servicer Not to Resign
Section 7.06 Successor Master Servicer
Section 7.07 Sale and Assignment of Master Servicing
ARTICLE VIII
Default
Section 8.01 Events of Default
Section 8.02 Trustee to Act; Appointment of Successor
Section 8.03 Notification to Certificateholders
Section 8.04 Waiver of Defaults
Section 8.05 List of Certificateholders
ARTICLE IX
Concerning the Trustee and the Securities Administrator
Section 9.01 Duties of Trustee and Securities Administrator
Section 9.02 Certain Matters Affecting the Trustee and the Securities
Administrator
Section 9.03 Trustee and Securities Administrator Not Liable for
Certificates or Mortgage Loans
Section 9.04 Trustee and Securities Administrator May Own Certificates
Section 9.05 Trustee's and Securities Administrator's Fees and Expenses
Section 9.06 Eligibility Requirements for Trustee and Securities
Administrator
Section 9.07 Insurance
Section 9.08 Resignation and Removal of the Trustee and Securities
Administrator
Section 9.09 Successor Trustee and Successor Securities Administrator
Section 9.10 Merger or Consolidation of Trustee or Securities
Administrator
Section 9.11 Appointment of Co-Trustee or Separate Trustee
Section 9.12 Federal Information Returns and Reports to
Certificateholders; REMIC Administration
ARTICLE X
Termination
Section 10.01 Termination Upon Repurchase by the Depositor or its Designee
or Liquidation of the Mortgage Loans
Section 10.02 [Reserved]
Section 10.03 Additional Termination Requirements with respect to the
Certificates
ARTICLE XI
Miscellaneous Provisions
Section 11.01 Intent of Parties
Section 11.02 Amendment
Section 11.03 Recordation of Agreement
Section 11.04 Limitation on Rights of Certificateholders
Section 11.05 Acts of Certificateholders
Section 11.06 Governing Law
Section 11.07 Notices
Section 11.08 Severability of Provisions
Section 11.09 Successors and Assigns
Section 11.10 Article and Section Headings
Section 11.11 Counterparts
Section 11.12 Notice to Rating Agencies
EXHIBITS
Exhibit A-1 - Form of Class A Certificates
Exhibit A-2 - Form of Class B Certificates
Exhibit A-3 - Form of Class PO Certificates
Exhibit A-4 - Form of Class I-R Certificates
Exhibit A-5 - Form of Class II-R Certificates
Exhibit A-6 - Form of Class [_]-X Certificates
Exhibit A-7 - Form of Class I-XB Certificates
Exhibit B - Mortgage Loan Schedule
Exhibit C - Reserved
Exhibit D - Request for Release of Documents
Exhibit E - Form of Affidavit pursuant to Section 860E(e)(4)
Exhibit F-1 - Form of Investment Letter
Exhibit F-2 - Form of Rule 144A and Related Matters Certificate
Exhibit F-3 - Form of Rule 144A Global Certificate to Regulation S
Global Certificate
Exhibit F-4 - Form of Regulation S Global Certificate to Rule 144A
Global Certificate
Exhibit G - Form of Custodial Agreement
Exhibit H-1 - CitiMortgage Servicing Agreement
Exhibit H-2 - EMC Servicing Agreement
Exhibit H-3 - Fifth Third Servicing Agreement
Exhibit H-4 - GMAC Servicing Agreement
Exhibit ▇-▇ - ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇-▇ - ▇▇▇▇▇▇▇▇ Chase Servicing Agreement
Exhibit H-7 - National City Servicing Agreement
Exhibit H-8 - Navy Federal Servicing Agreement
Exhibit H-9 - PHH Mortgage Servicing Agreement
Exhibit ▇-▇▇ - ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇-▇▇ - ▇▇▇▇ Servicing Agreement
Exhibit H-12 - ▇▇▇▇▇ Fargo Servicing Agreement
Exhibit I - Assignment Agreements
Exhibit J - Mortgage Loan Purchase Agreement
POOLING AND SERVICING AGREEMENT
Pooling and Servicing Agreement dated as of December 1, 2005, among
Structured Asset Mortgage Investments II Inc., a Delaware corporation, as
depositor (the "Depositor"), U.S. Bank National Association, a national banking
association, as trustee (the "Trustee"), ▇▇▇▇▇ Fargo Bank, National Association,
as master servicer (in such capacity, the "Master Servicer") and as securities
administrator (in such capacity, the "Securities Administrator"), and EMC
Mortgage Corporation, as seller (in such capacity, the "Seller") and as company
(in such capacity, the "Company").
PRELIMINARY STATEMENT
On or prior to the Closing Date, the Depositor acquired the Mortgage
Loans from the Seller. On the Closing Date, the Depositor will sell the Mortgage
Loans and certain other property to the Trust Fund and receive in consideration
therefor the Certificates, together evidencing the entire beneficial ownership
interest in the Trust Funds.
The Trustee on behalf of the Trust shall make an election for the
assets constituting REMIC I to be treated for federal income tax purposes as a
REMIC. On the Startup Day, the REMIC I Regular Interests will be designated
"regular interests" in such REMIC, and the Class I-R-1 Certificates will be
designated the sole class of "residual interests" in such REMIC.
The Trustee on behalf of the Trust shall make an election for the
assets constituting REMIC II to be treated for federal income tax purposes as a
REMIC. On the Startup Day, the REMIC II Regular Interests will be designated
"regular interests" in such REMIC, and the Class II-R-1 Certificates will be
designated the sole class of "residual interests" in such REMIC.
The Trustee on behalf of the Trust shall make an election for the
assets constituting REMIC III to be treated for federal income tax purposes as a
REMIC. On the Startup Day, the REMIC III Regular Interests will be designated
"regular interests" in such REMIC, and the Class I-R-2 Certificates will be
designated the sole class of "residual interests" in such REMIC.
The Trustee on behalf of the Trust shall make an election for the
assets constituting REMIC IV to be treated for federal income tax purposes as a
REMIC. On the Startup Day, the REMIC IV Regular Interests will be designated
"regular interests" in such REMIC, and the Class I-R-3 Certificates will be
designated the sole class of "residual interests" in such REMIC.
The Mortgage Loans will have an Outstanding Principal Balance as of the
Cut-off Date, after deducting all Scheduled Principal due on or before the
Cut-off Date, of $205,079,914.43. The initial principal amount of the
Certificates will not exceed such Outstanding Principal Balance.
The Mortgage Loans have been divided into two Loan Groups, designated
as Loan Group I and Loan Group II. The Group I Mortgage Loans will have an
Outstanding Principal Balance as of the Cut-off Date, after deducting all
Scheduled Principal due on or before the Cut-off Date, of $82,441,600.62. The
Group II Mortgage Loans will have an Outstanding Principal Balance as of the
Cut-off Date, after deducting all Scheduled Principal due on or before the
Cut-off Date, of $122,638,313.81. The Group I Certificates and Group II
Certificates shall receive distributions solely with respect to the Group I
Mortgage Loans and Group II Mortgage Loans, respectively.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Securities Administrator, the Seller, the
Company and the Trustee agree as follows:
ARTICLE I
Definitions
Section 1.01 DEFINITIONS.
Whenever used in this Agreement, the following words and phrases,
unless otherwise expressly provided or unless the context otherwise requires,
shall have the meanings specified in this Article.
ACCEPTED MASTER SERVICING PRACTICES: With respect to any Mortgage Loan,
as applicable, either (x) those customary mortgage servicing practices of
prudent mortgage servicing institutions that master service Mortgage Loans of
the same type and quality as such Mortgage Loan in the jurisdiction where the
related Mortgaged Property is located, to the extent applicable to the Trustee
or the Master Servicer (except in its capacity as successor to a Servicer), or
(y) as provided in the applicable Servicing Agreement, to the extent applicable
to any Servicer, but in no event below the standard set forth in clause (x).
ACCOUNT: The Master Servicer Collection Account, the Distribution
Account and the Protected Account as the context may require.
ACCRUED CERTIFICATE INTEREST: For any Certificate (other than the Class
I-PO Certificates and Class II-PO Certificates) for any Distribution Date, the
interest accrued during the related Interest Accrual Period at the applicable
Pass-Through Rate on the Current Principal Amount, or Notional Amount in the
case of any Interest Only Certificate, of such Certificate immediately prior to
such Distribution Date, less (i) in the case of a Senior Certificate (other than
the Class I-PO Certificates and Class II-PO Certificates), such Certificate's
share of any Net Interest Shortfall from the related Mortgage Loans and, after
the Cross-Over Date, the interest portion of any Realized Losses on the related
Mortgage Loans allocated thereto in accordance with Section 6.03(f) and (ii) in
the case of a Subordinate Certificate, such Certificate's share of any Net
Interest Shortfall from the related Mortgage Loans and the interest portion of
any Realized Losses on the related Mortgage Loans allocated thereto in
accordance with Section 6.02(f). All calculations of interest on the
Certificates will be made on the basis of on the basis of a 360-day year
consisting of twelve 30-day months.
ADJUSTMENT AMOUNT: Group I Adjustment Amount or Group II Adjustment
Amount.
AFFILIATE: As to any Person, any other Person controlling, controlled
by or under common control with such Person. "Control" means the power to direct
the management and policies of a Person, directly or indirectly, whether through
ownership of voting securities, by contract or otherwise. "Controlled" and
"Controlling" have meanings correlative to the foregoing. The Trustee may
conclusively presume that a Person is not an Affiliate of another Person unless
a Responsible Officer of the Trustee has actual knowledge to the contrary.
AGREEMENT: This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
ALLOCABLE SHARE: Group I Allocable Share or Group II Allocable Share.
APPLICABLE CREDIT RATING: For any long-term deposit or security, a
credit rating of AAA in the case of each of S&P and Fitch or Aaa in the case of
Moody's. For any short-term deposit or security, or a rating of A-l+ in the case
of each of S&P and Fitch or P-1 in the case of Moody's.
APPLICABLE STATE LAW: For purposes of Section 9.12(d), the Applicable
State Law shall be (a) the law of the State of New York and (b) such other state
law whose applicability shall have been brought to the attention of the
Securities Administrator and the Trustee by either (i) an Opinion of Counsel
reasonably acceptable to the Securities Administrator and the Trustee delivered
to it by the Master Servicer or the Depositor, or (ii) written notice from the
appropriate taxing authority as to the applicability of such state law.
APPRAISED VALUE: For any Mortgaged Property related to a Mortgage Loan,
the amount set forth as the appraised value of such Mortgaged Property in an
appraisal made for the mortgage originator in connection with its origination of
the related Mortgage Loan.
ASSIGNMENT AGREEMENTS: The agreements attached hereto as Exhibit I,
whereby the related Servicing Agreements were assigned to the Trustee for the
benefit of the Holders of the Certificateholders.
ASSIGNMENT OF PROPRIETARY LEASE: With respect to a Cooperative Loan,
the assignment of the related Cooperative Lease from the Mortgagor to the
originator of the Cooperative Loan.
AVAILABLE FUNDS: Group I Available Funds or Group II Available Funds.
AVERAGE LOSS SEVERITY PERCENTAGE: With respect to any Distribution
Date, the percentage equivalent of a fraction, the numerator of which is the sum
of the Loss Severity Percentages for each Mortgage Loan which had a Realized
Loss and the denominator of which is the number of Mortgage Loans which had
Realized Losses.
BANKRUPTCY CODE: The United States Bankruptcy Code, as amended as
codified in 11 U.S.C. ▇▇.▇▇. 101-1330.
BANKRUPTCY COVERAGE TERMINATION DATE: Group I Bankruptcy Coverage
Termination Date or Group II Bankruptcy Coverage Termination Date.
BANKRUPTCY LOSS AMOUNT: Group I Bankruptcy Loss Amount or Group II
Bankruptcy Loss Amount.
BANKRUPTCY LOSS: With respect to any Mortgage Loan, any Deficient
Valuation or Debt Service Reduction related to such Mortgage Loan as reported by
the applicable Servicer to the Master Servicer.
BOOK-ENTRY CERTIFICATES: Initially, all Classes of the Senior
Certificates (other than the Residual Certificates) and the Offered Subordinate
Certificates.
BUSINESS DAY: Any day other than (i) a Saturday or a Sunday, or (ii) a
day on which the New York Stock Exchange or Federal Reserve is closed or on
which banking institutions in the jurisdiction in which the Trustee, the Master
Servicer, any Servicer or the Securities Administrator is located are authorized
or obligated by law or executive order to be closed.
CERTIFICATE: Any one of the Certificates executed and countersigned by
the Certificate Registrar substantially in the form of Exhibits A-1 through A-7
attached hereto.
CERTIFICATES DISTRIBUTION REPORT: The report prepared by the Securities
Administrator with respect to the Certificates and the Mortgage Loans pursuant
to Section 6.05(a).
CERTIFICATEHOLDER: A Holder of a Certificate.
CERTIFICATE OWNER: Any Person who is the beneficial owner of a
Certificate registered in the name of the Depository or its nominee.
CERTIFICATE REGISTER: The register maintained pursuant to Section 5.02.
CERTIFICATE REGISTRAR: The Securities Administrator or any successor
certificate registrar appointed hereunder.
CITIMORTGAGE: CitiMortgage, Inc., or its successor in interest.
CITIMORTGAGE SERVICING AGREEMENT: The Mortgage Loan Purchase and
Servicing Agreement, dated as of August 1, 2003, between the Seller and
CitiMortgage, attached hereto as Exhibit H-1, and as modified by the related
Assignment Agreement.
CLASS: With respect to the Certificates, ▇-▇-▇, ▇-▇-▇, ▇-▇-▇, I-PO,
I-X, I-XB, ▇-▇-▇, ▇-▇-▇, ▇-▇-▇, ▇-▇-▇, ▇-▇-▇, ▇-▇-▇, ▇-▇-▇, ▇-▇-▇, ▇-▇-▇,
▇▇-▇-▇, ▇▇-▇-▇, ▇▇-▇-▇, ▇▇-▇-▇, II-X, II-PO, ▇▇-▇-▇, ▇▇-▇-▇, ▇▇-▇-▇, ▇▇-▇-▇,
▇▇-▇-▇, ▇▇-▇-▇ and II-B-6.
CLASS I-A CERTIFICATES: Any of the Class I-A-1, Class I-A-2 and Class
I-A-3 Certificates.
CLASS I-R CERTIFICATES: The Class I-R-1, Class I-R-2 and Class I-R-3
Certificates.
CLASS I-R DEPOSIT: The $150 deposit into the Distribution Account by
the Depositor on the Closing Date to pay the Class I-R Certificates in
accordance with Section 6.01(a) on the Distribution Date occurring in January
2006.
CLASS I-PO CERTIFICATE CASH SHORTFALL: For any Distribution Date, the
difference between (i) principal distributable to the Class I-PO Certificates in
accordance with priority FOURTH of clause (i) under subsection 6.01(a)(I), and
(ii) principal actually distributed to the Class I-PO Certificates after giving
effect to clause (v) under subsection 6.01(a)(I).
CLASS II-PO CERTIFICATE CASH SHORTFALL: For any Distribution Date, the
difference between (i) principal distributable to the Class II-PO Certificates
in accordance with priority FOURTH of clause (i) under subsection 6.01(a)(II),
and (ii) principal actually distributed to the Class II-PO Certificates after
giving effect to clause (v) under subsection 6.01(a)(II).
CLASS I-PO CERTIFICATE DEFERRED AMOUNT: As to each Distribution Date
through the Group I Cross-Over Date, the aggregate of all amounts allocable on
such dates to the Class I-PO Certificates in respect of the principal portion of
Realized Losses in respect of Discount Mortgage Loans in Subgroup I-1 and the
Class I-PO Certificate Cash Shortfall and all amounts previously allocated in
respect of such losses and such shortfalls to the Class I-PO Certificates, and
not distributed on prior Distribution Dates.
CLASS II-PO CERTIFICATE DEFERRED AMOUNT: As to each Distribution Date
through the Group II Cross-Over Date, the aggregate of all amounts allocable on
such dates to the Class II-PO Certificates in respect of the principal portion
of Realized Losses in respect of Discount Mortgage Loans in Loan Group II and
the Class II-PO Certificate Cash Shortfall and all amounts previously allocated
in respect of such losses and such shortfalls to the Class II-PO Certificates,
and not distributed on prior Distribution Dates.
CLASS I-PO CERTIFICATE PRINCIPAL DISTRIBUTION AMOUNT: The Class I-PO
Certificates shall be entitled to distributions from Subgroup I-1. For each
Class of Class I-PO Certificates with respect to each Distribution Date will be
an amount equal to the sum of:
(i) the related PO Percentage of all scheduled payments of
principal due on each Discount Mortgage Loan in Subgroup I-1 on the
related Due Date as specified in the amortization schedule at the time
applicable thereto (after adjustment for previous principal prepayments
but before any adjustment to such amortization schedule by reason of
any bankruptcy or similar proceeding or any moratorium or similar
waiver or grace period);
(ii) the related PO Percentage of the Scheduled Principal
Balance of each Discount Mortgage Loan in Subgroup I-1 which was the
subject of a prepayment in full received by the Master Servicer during
the applicable Prepayment Period;
(iii) the related PO Percentage of all partial prepayments of
principal of each Discount Mortgage Loan in the related Subgroup
received during the applicable Prepayment Period;
(iv) the lesser of (a) the related PO Percentage of the sum of
(A) all Net Liquidation Proceeds and Subsequent Recoveries allocable to
principal on each Discount Mortgage Loan in Subgroup I-1 which became a
Liquidated Mortgage Loan during the related Prepayment Period (other
than a Discount Mortgage Loan described in immediately following clause
(B)) and (B) the Scheduled Principal Balance of each such Discount
Mortgage Loan in Subgroup I-1 purchased by an insurer from the Trustee
during the related Prepayment Period pursuant to the related Primary
Mortgage Insurance Policy, if any, or otherwise; and (b) the related PO
Percentage of the sum of (A) the Scheduled Principal Balance of each
Discount Mortgage Loan in Subgroup I-1 which became a Liquidated
Mortgage Loan during the related Prepayment Period (other than a
Discount Mortgage Loan described in immediately clause (B)) and (B) the
Scheduled Principal Balance of each such Mortgage Loan in Subgroup I-1
that was purchased by an insurer from the Trustee during the related
Prepayment Period pursuant to the related Primary Mortgage Insurance
Policy, if any, or otherwise; and
(v) the related PO Percentage of the sum of (a) the Scheduled
Principal Balance of each Discount Mortgage Loan in Subgroup I-1 which
was repurchased by the Seller in connection with such Distribution Date
and (b) the difference, if any, between the Scheduled Principal Balance
of a Discount Mortgage Loan in Subgroup I-1 that has been replaced by
the Seller with a substitute Discount Mortgage Loan pursuant to the
Agreement in connection with such Distribution Date and the Scheduled
Principal Balance of such substitute Discount Mortgage Loan.
CLASS II-PO CERTIFICATE PRINCIPAL DISTRIBUTION AMOUNT: The Class II-PO
Certificates shall be entitled to distributions from Loan Group II. For each
Class of Class II-PO Certificates with respect to each Distribution Date will be
an amount equal to the sum of:
(i) the related PO Percentage of all scheduled payments of
principal due on each Discount Mortgage Loan in Loan Group II on the
related Due Date as specified in the amortization schedule at the time
applicable thereto (after adjustment for previous principal prepayments
but before any adjustment to such amortization schedule by reason of
any bankruptcy or similar proceeding or any moratorium or similar
waiver or grace period);
(ii) the related PO Percentage of the Scheduled Principal
Balance of each Discount Mortgage Loan in Loan Group II which was the
subject of a prepayment in full received by the related Master Servicer
during the applicable Prepayment Period;
(iii) the related PO Percentage of all partial prepayments of
principal of each Discount Mortgage Loan in Loan Group II received
during the applicable Prepayment Period;
(iv) the lesser of (a) the related PO Percentage of the sum of
(A) all Net Liquidation Proceeds allocable to principal on each
Discount Mortgage Loan in Loan Group II which became a Liquidated
Mortgage Loan during the related Prepayment Period (other than a
Discount Mortgage Loan described in immediately following clause (B))
and (B) the Scheduled Principal Balance of each such Discount Mortgage
Loan in Loan Group II purchased by an insurer from the Trustee during
the related Prepayment Period pursuant to the related primary mortgage
insurance policy, if any, or otherwise; and (b) the related PO
Percentage of the sum of (A) the Scheduled Principal Balance of each
Discount Mortgage Loan in Loan Group II which became a Liquidated
Mortgage Loan during the related Prepayment Period (other than a
Discount Mortgage Loan described in immediately following clause (B))
and (B) the Scheduled Principal Balance of each such Mortgage Loan in
Loan Group II that was purchased by an insurer from the Trustee during
the related Prepayment Period pursuant to the related primary mortgage
insurance policy, if any, or otherwise; and
(v) the related PO Percentage of the sum of (a) the Scheduled
Principal Balance of each Discount Mortgage Loan in Loan Group II which
was repurchased by the Seller in connection with such distribution date
and (b) the difference, if any, between the Scheduled Principal Balance
of a Discount Mortgage Loan in Loan Group II that has been replaced by
the Seller with a substitute Discount Mortgage Loan pursuant to the
Agreement in connection with such distribution date and the Scheduled
Principal Balance of such substitute Discount Mortgage Loan.
CLASS II-R DEPOSIT: The $100 deposit into the Distribution Account by
the Depositor on the Closing Date to pay the Class II-R-1 Certificates in
accordance with Section 6.01(a) on the Distribution Date occurring in January
2006.
CLASS PREPAYMENT DISTRIBUTION TRIGGER: For a Class of related
Subordinate Certificates for any Distribution Date, the Class Prepayment
Distribution Trigger is satisfied if the fraction (expressed as a percentage),
the numerator of which is the aggregate Current Principal Amount of such Class
and each Class of the related Subordinate Certificates subordinate thereto, if
any, and the denominator of which is the Scheduled Principal Balance of all of
the related Mortgage Loans as of the related Due Date, equals or exceeds such
percentage calculated as of the Closing Date.
CLASS R CERTIFICATES: The Class I-R-1, Class I-R-2, Class I-R-3 and
Class II-R-1 Certificates.
CLASS X CERTIFICATES: The Class I-X Certificates and Class II-X
Certificates.
CLEARING AGENCY: An organization registered as a "clearing agency"
pursuant to Section 17A of the Securities and Exchange Act of 1934, as amended,
which initially shall be DTC, Clearstream, Luxembourg and Euroclear.
CLEARSTREAM, LUXEMBOURG: Clearstream Banking, a societe anonyme, a
limited liability company organized under the laws of Luxembourg.
CLOSING DATE: December 29, 2005.
CODE: The Internal Revenue Code of 1986, as amended.
COMPENSATING INTEREST PAYMENT: As defined in Section 6.06.
COOPERATIVE: A private, cooperative housing corporation which owns or
leases land and all or part of a building or buildings, including apartments,
spaces used for commercial purposes and common areas therein and whose board of
directors authorizes, among other things, the sale of Cooperative Stock.
COOPERATIVE APARTMENT: A dwelling unit in a multi-dwelling building
owned or leased by a Cooperative, which unit the Mortgagor has an exclusive
right to occupy pursuant to the terms of a proprietary lease or occupancy
agreement.
COOPERATIVE LEASE: With respect to a Cooperative Loan, the proprietary
lease or occupancy agreement with respect to the Cooperative Apartment occupied
by the Mortgagor and relating to the related Cooperative Stock, which lease or
agreement confers an exclusive right to the holder of such Cooperative Stock to
occupy such apartment.
COOPERATIVE LOAN: Any of the Mortgage Loans made in respect of a
Cooperative Apartment, evidenced by a Mortgage Note and secured by (i) a
Security Agreement, (ii) the related Cooperative Stock Certificate, (iii) an
assignment of the Cooperative Lease, (iv) financing statements and (v) a stock
power (or other similar instrument), and ancillary thereto, a recognition
agreement between the Cooperative and the originator of the Cooperative Loan,
each of which was transferred and assigned to the Trustee pursuant to Section
2.01 and are from time to time held as part of the Trust Fund.
COOPERATIVE STOCK: With respect to a Cooperative Loan, the single
outstanding class of stock, partnership interest or other ownership instrument
in the related Cooperative.
COOPERATIVE STOCK CERTIFICATE: With respect to a Cooperative Loan, the
stock certificate or other instrument evidencing the related Cooperative Stock.
CORPORATE TRUST OFFICE: The office of the Trustee at which at any
particular time its corporate trust business is administered, which office, at
the date of the execution of this Agreement, is located at US Bank Corporate
Trust Services, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Corporate Trust Services/PRIME 2005-5, or such other address as the
Trustee may designate from time to time. With respect to the Certificate
Registrar and the presentment of Certificates for registration of transfer,
exchange or final payment, ▇▇▇▇▇ Fargo Bank, National Association, its offices
located at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Corporate Trust/PRIME 2005-5, and for all other purposes, its offices
located at ▇.▇. ▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (or, for overnight deliveries,
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇), Attention: Corporate
Trust/Prime 2005-5.
CORRESPONDING CERTIFICATES: With respect to each REMIC II Regular
Interest and each REMIC III Regular Interest, the Class with the same
designation.
CROSS-OVER DATE: Group I Cross-Over Date or Group II Cross-Over Date.
CURRENT PRINCIPAL AMOUNT: With respect to any Certificate (other than
an Interest Only Certificate) as of any Distribution Date, the initial principal
amount of such Certificate plus any Subsequent Recoveries added to the Current
Principal Amount of such Certificate pursuant to Section 6.01(h), and reduced by
(i) all amounts distributed on previous Distribution Dates on such Certificate
with respect to principal, (ii) the principal portion of all Realized Losses
allocated prior to such Distribution Date to such Certificates, taking account
of the Loss Allocation Limitation and (iii) in the case of a Subordinate
Certificate, such Certificate's pro rata share, if any, of the related
applicable Subordinate Certificate Writedown Amount for previous Distribution
Dates. With respect to any Class of Certificates (other than an Interest Only
Certificate), the Current Principal Amount thereof will equal the sum of the
Current Principal Amounts of all Certificates in such Class. Notwithstanding the
foregoing, solely for purposes of giving consents, directions, waivers,
approvals, requests and notices, each of the Residual Certificates after the
Distribution Date on which they each receive the distribution of the last dollar
of their respective original principal amount shall be deemed to have Current
Principal Amounts equal to their respective Current Principal Amounts on the day
immediately preceding such Distribution Date.
CUSTODIAL AGREEMENT: An agreement, dated as of the Closing Date among
the Depositor, the Master Servicer, the Trustee and the Custodian in
substantially the form of Exhibit G hereto.
CUSTODIAN: ▇▇▇▇▇ Fargo Bank, National Association, or any successor
custodian appointed pursuant to the provisions hereof and of the Custodial
Agreement.
CUT-OFF DATE: December 1, 2005.
CUT-OFF DATE BALANCE: An amount equal to $82,441,600.62 with respect to
Loan Group I and $122,638,313.81 with respect to Loan Group II.
DEBT SERVICE REDUCTION: Any reduction of the Scheduled Payments which a
Mortgagor is obligated to pay with respect to a Mortgage Loan as a result of any
proceeding under the Bankruptcy Code or any other similar state law or other
proceeding.
DEFICIENT VALUATION: With respect to any Mortgage Loan, a valuation of
the Mortgaged Property by a court of competent jurisdiction in an amount less
than the then outstanding indebtedness under the Mortgage Loan, which valuation
results from a proceeding initiated under the Bankruptcy Code or any other
similar state law or other proceeding.
DEPOSITOR: Structured Asset Mortgage Investments II Inc., a Delaware
corporation, or its successors in interest.
DEPOSITORY: The Depository Trust Company, the nominee of which is Cede
& Co., or any successor thereto.
DEPOSITORY AGREEMENT: The meaning specified in Subsection 5.01(a)
hereof.
DEPOSITORY PARTICIPANT: A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
DESIGNATED DEPOSITORY INSTITUTION: A depository institution (commercial
bank, federal savings bank, mutual savings bank or savings and loan association)
or trust company (which may include the Trustee), the deposits of which are
fully insured by the FDIC to the extent provided by law.
DETERMINATION DATE: With respect to each Mortgage Loan, the
Determination Date as defined in the related Servicing Agreement.
DISCOUNT MORTGAGE LOAN: With respect to the Class I-PO Certificates,
any Group I Mortgage Loan with a Net Mortgage Rate less than 7.00% per annum,
and with respect to the Class II-PO Certificates, any Group II Mortgage Loan
with a Net Mortgage Rate less than 5.50% per annum.
DISQUALIFIED ORGANIZATION: Any of the following: (i) the United States,
any State or political subdivision thereof, any possession of the United States,
or any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and, except for the ▇▇▇▇▇▇▇ Mac or any successor thereto, a majority of its
board of directors is not selected by such governmental unit), (ii) any foreign
government, any international organization, or any agency or instrumentality of
any of the foregoing, (iii) any organization (other than certain farmers'
cooperatives described in Section 521 of the Code) which is exempt from the tax
imposed by Chapter 1 of the Code (including the tax imposed by Section 511 of
the Code on unrelated business taxable income), (iv) rural electric and
telephone cooperatives described in Section 1381(a)(2)(C) of the Code or (v) any
other Person so designated by the Trustee and the Certificate Registrar based
upon an Opinion of Counsel that the holding of an ownership interest in a
Residual Certificate by such Person may cause any REMIC contained in the Trust
or any Person having an Ownership Interest in the Residual Certificate (other
than such Person) to incur a liability for any federal tax imposed under the
Code that would not otherwise be imposed but for the transfer of an Ownership
Interest in a Residual Certificate to such Person. The terms "United States,"
"State" and "international organization" shall have the meanings set forth in
Section 7701 of the Code or successor provisions.
DISTRIBUTION ACCOUNT: The trust account or accounts created and
maintained pursuant to Section 4.04, which shall be denominated "▇▇▇▇▇ Fargo
Bank, National Association, as Paying Agent, f/b/o holders of Structured Asset
Mortgage Investments II Inc., Prime Mortgage Trust, Certificates, Series 2005-5
- Distribution Account." The Distribution Account shall be an Eligible Account.
DISTRIBUTION ACCOUNT DEPOSIT DATE: The Business Day prior to each
Distribution Date.
DISTRIBUTION DATE: The 25th day of any month, beginning in January
2006, or, if such 25th day is not a Business Day, the immediately following
Business Day.
DTC CUSTODIAN: ▇▇▇▇▇ Fargo, National Association, or its successors in
interest as custodian for the Depository.
DUE DATE: With respect to each Mortgage Loan, the date in each month on
which its Scheduled Payment is due if such due date is the first day of a month
and otherwise is deemed to be the first day of the following month or such other
date specified in the related Servicing Agreement.
DUE PERIOD: With respect to any Distribution Date and each Mortgage
Loan, the period commencing on the second day of the month preceding the month
in which the Distribution Date occurs and ending at the close of business on the
first day of the month in which the Distribution Date occurs.
ELIGIBLE ACCOUNT: Any of (i) a segregated account maintained with a
federal or state chartered depository institution (A) the short-term obligations
of which are rated A-1 or better by Standard & Poor's, F-1 by Fitch and P-1 by
Moody's at the time of any deposit therein or (B) insured by the FDIC (to the
limits established by such Corporation), the uninsured deposits in which account
are otherwise secured such that, as evidenced by an Opinion of Counsel (obtained
by the Person requesting that the account be held pursuant to this clause (i))
delivered to the Trustee prior to the establishment of such account, the
Certificateholders will have a claim with respect to the funds in such account
and a perfected first priority security interest against any collateral (which
shall be limited to Permitted Investments, each of which shall mature not later
than the Business Day immediately preceding the Distribution Date next following
the date of investment in such collateral or the Distribution Date if such
Permitted Investment is an obligation of the institution that maintains the
Distribution Account) securing such funds that is superior to claims of any
other depositors or general creditors of the depository institution with which
such account is maintained, (ii) a segregated trust account or accounts
maintained with a federal or state chartered depository institution or trust
company with trust powers acting in its fiduciary capacity or (iii) a segregated
account or accounts of a depository institution acceptable to the Rating
Agencies (as evidenced in writing by the Rating Agencies that use of any such
account as the Distribution Account will not have an adverse effect on the
then-current ratings assigned to the Classes of Certificates then rated by the
Rating Agencies determined without regard to the Policy). Eligible Accounts may
bear interest.
EMC: EMC Mortgage Corporation.
EMC SERVICING AGREEMENT: With respect to Mortgage Loans serviced by
EMC, the Servicing Agreement dated as of December 1, 2005, between the Depositor
and EMC, as attached hereto as Exhibit H-2 and as modified by the related
Assignment Agreement.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
EUROCLEAR: Euroclear Clearance System, Societe Cooperative, a Belgium
cooperative cooperation.
EUROCLEAR OPERATOR: Euroclear Bank S.A./N.V., as operator of the
Euroclear system.
EVENT OF DEFAULT: An event of default described in Section 8.01.
EXCESS BANKRUPTCY LOSS: Any Bankruptcy Loss, or portion thereof (i)
occurring after the related Bankruptcy Coverage Termination Date or (ii) if on
or prior to such date, in excess of the then-applicable Bankruptcy Loss Amount.
EXCESS FRAUD LOSS: Any Fraud Loss or portion thereof (i) occurring
after the related Fraud Coverage Termination Date with respect thereto or (ii)
if on or prior to such date, in excess of the then-applicable Fraud Loss Amount.
EXCESS LOSS: Any Excess Fraud Loss, Excess Bankruptcy Loss, Excess
Special Hazard Loss or Extraordinary Loss.
EXCESS LIQUIDATION PROCEEDS: To the extent that such amount is not
required by law to be paid to the related Mortgagor, the amount, if any, by
which Liquidation Proceeds with respect to a Liquidated Mortgage Loan exceed the
sum of (i) the Outstanding Principal Balance of such Mortgage Loan and accrued
but unpaid interest at the related Mortgage Interest Rate through the last day
of the month in which the related Liquidation Date occurs, plus (ii) related
Liquidation Expenses.
EXCESS SPECIAL HAZARD LOSS: Any Special Hazard Loss occurring after the
related Special Hazard Termination Date.
EXTRAORDINARY LOSS: Any Realized Loss resulting from damage to a
Mortgaged Property that was occasioned by war, civil insurrection, certain
governmental actions, nuclear reaction and certain other risks.
▇▇▇▇▇▇ ▇▇▇: Federal National Mortgage Association or any successor
thereto.
FDIC: Federal Deposit Insurance Corporation or any successor thereto.
FIFTH THIRD: Fifth Third Mortgage Company, or its successor in
interest.
FIFTH THIRD SERVICING AGREEMENT: The Purchase, Warranties and Servicing
Agreement, dated as of September 1, 2002, between the Seller and Fifth Third,
attached hereto as Exhibit H-3, and as modified by the related Assignment
Agreement.
FINAL CERTIFICATION: The certification substantially in the form of
Exhibit Three to the Custodial Agreement.
FISCAL QUARTER: December 1 to February 29 (or the last day in such
month), March 1 to May 31, June 1 to August 31, or September 1 to November 30,
as applicable.
FITCH: Fitch, Inc. and its successors in interest.
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FRACTIONAL UNDIVIDED INTEREST: With respect to any Class of
Certificates, the fractional undivided interest evidenced by any Certificate of
such Class, the numerator of which is the Current Principal Amount, or Notional
Amount in the case of the Interest Only Certificates, of such Certificate and
the denominator of which is the Current Principal Amount, or Notional Amount in
the case of the Interest Only Certificates, of such Class. With respect to the
Certificates in the aggregate, the fractional undivided interest evidenced by
(i) the Residual Certificates will be deemed to equal 0.25%, (ii) each Class of
Interest Only Certificates will be deemed to equal 1.0% multiplied by a
fraction, the numerator of which is the Notional Amount of such Certificate and
the denominator of which is the aggregate Notional Amount of its respective
Class and (iii) a Certificate of any other Class will be deemed to equal the
fractional undivided interest remaining after taking into account clauses (i)
and (ii) multiplied by a fraction, the numerator of which is the Current
Principal Amount of such Certificate and the denominator of which is the
aggregate Current Principal Amount of all the Certificates; provided, however,
the percentage in clause (iii) above shall be increased by 1.0% upon the
retirement of each Class of Interest Only Certificates. Matters which solely
affect the Group I Certificates or Group II Certificates will be voted on solely
by the related Classes.
FRAUD COVERAGE TERMINATION DATE: Group I Fraud Coverage Termination
Date or Group II Fraud Coverage Termination Date.
FRAUD LOSS: With respect to any Mortgage Loan, any Realized Loss
attributable to fraud in the origination of such Mortgage Loan, as reported by
the applicable Servicer to the Master Servicer.
FRAUD LOSS AMOUNT: Group I Fraud Loss Amount or Group II Fraud Loss
Amount.
▇▇▇▇▇▇▇ MAC: ▇▇▇▇▇▇▇ Mac, formerly the Federal Home Loan Mortgage
Corporation, or any successor thereto.
GLOBAL CERTIFICATE: Any Non-Offered Certificate registered in the name
of the Depository or its nominee, beneficial interests in which are reflected on
the books of the Depository or on the books of a Person maintaining an account
with such Depository (directly or as an indirect participant in accordance with
the rules of such depository).
GMAC: GMAC Mortgage Corporation, or its successor in interest.
GMAC SERVICING AGREEMENT: The Servicing Agreement, dated as of November
1, 2004, between the Depositor and GMAC, attached hereto as Exhibit H-4, and as
modified by the related Assignment Agreement.
GREENPOINT: GreenPoint Mortgage Funding, Inc., or its successor in
interest.
GREENPOINT SERVICING AGREEMENT: The Purchase, Warranties and Servicing
Agreement, dated as of September 1, 2003, between the Seller and GreenPoint,
attached hereto as Exhibit H-5, and as modified by the related Assignment
Agreement.
GROUP I ADJUSTMENT AMOUNT: For each anniversary of the Cut-off Date,
the amount, if any, by which the Group I Special Hazard Loss Amount (without
giving effect to the deduction of the Group I Adjustment Amount for such
anniversary) exceeds the lesser of (A) an amount calculated by the Seller and
approved by the related Rating Agencies, which amount shall not be less than
$500,000, and (B) the greater of (x) 1.0% (or if greater than 1.0%, the highest
percentage of Group I Mortgage Loans by principal balance secured by Mortgaged
Properties in any California zip code) of the outstanding principal balance of
all Group I Mortgage Loans on the Distribution Date immediately preceding such
anniversary and (y) three times the outstanding principal balance of the Group I
Mortgage Loan which has the largest outstanding principal balance on the
Distribution Date immediately preceding such anniversary.
GROUP I ALLOCABLE SHARE: With respect to any Class of Group I
Subordinate Certificates (other than the Class I-XB Certificates) on any
Distribution Date will generally equal such Class's pro rata share (based on the
Current Principal Amount of each Class entitled thereto) of the sum of each of
the components of the definition of Group I Subordinate Optimal Principal Amount
for each Subgroup; provided, that except as described in the succeeding
sentence, no Class of Group I Subordinate Certificates (other than the Class
I-XB Certificates and Class of Group I Subordinate Certificates outstanding with
the lowest numerical designation) shall be entitled on any Distribution Date to
receive distributions pursuant to clauses (2), (3) and (5) of the definition of
Group I Subordinate Optimal Principal Amount unless the Class Prepayment
Distribution Trigger for the related Class is satisfied for such Distribution
Date. If on any Distribution Date the Current Principal Amount of any Class of
Group I Subordinate Certificates (other than the Class I-XB Certificates) for
which the related Class Prepayment Distribution Trigger was satisfied on such
Distribution Date is reduced to zero, any amounts distributable to such Class
pursuant to clauses (2), (3) and (5) of the definition of Group I Subordinate
Optimal Principal Amount, to the extent of such Class's remaining Group I
Allocable Share, shall be distributed to the remaining Classes of Group I
Subordinate Certificates (other than the Class I-XB Certificates) in reduction
of their respective Current Principal Amounts, sequentially, in the order of
their numerical Class designations.
GROUP I AVAILABLE FUNDS: For any Distribution Date and Loan Group I, an
amount which generally includes, (1) all previously undistributed payments on
account of principal (including the principal portion of Monthly Payments,
Principal Prepayments and the principal amount of Net Liquidation Proceeds) and
all previously undistributed payments on account of interest received after the
Cut-Off Date and on or prior to the related Determination Date with respect to
the Group I Mortgage Loans, (2) any Monthly Advances and Compensating Interest
made by the Master Servicer or a Servicer for such Distribution Date in respect
of the Group I Mortgage Loans and (3) any amounts reimbursed by the Master
Servicer in connection with losses on certain eligible investments in connection
with funds attributable to Loan Group I, net of Loan Group I's allocable portion
of fees payable to, and amounts reimbursable to, the Servicers, the Master
Servicer, the Securities Administrator, the Trustee and the Custodian as
provided in this Agreement and the Custodial Agreement and investment earnings
on amounts on deposit in the Master Servicer Collection Account and the
Distribution Account in connection with funds attributable to Loan Group I.
GROUP I BANKRUPTCY COVERAGE TERMINATION DATE: The Distribution Date
upon which the Group I Bankruptcy Loss Amount has been reduced to zero or a
negative number (or the Group I Cross-Over Date, if earlier).
GROUP I BANKRUPTCY LOSS AMOUNT: On each Distribution Date, $150,000,
subject to reduction as described in this Agreement, minus the aggregate amount
of previous Bankruptcy Losses with respect to the Group I Mortgage Loans.
GROUP I CERTIFICATES: The Group I Offered Certificates and Group I
Non-Offered Certificates.
GROUP I CROSS-OVER DATE: The Distribution Date on which the Current
Principal Amounts of the Group I Subordinate Certificates are reduced to zero.
GROUP I FRAUD COVERAGE TERMINATION DATE: The Distribution Date upon
which the Group I Fraud Loss Amount has been reduced to zero or a negative
number (or the Group I Cross-Over Date, if earlier).
GROUP I FRAUD LOSS AMOUNT: Upon the initial issuance of the Group I
Certificates and as of any Distribution Date prior to the first anniversary of
the Cut-Off Date, 3% of the aggregate Scheduled Principal Balances of the Group
I Mortgage Loans. As of any Distribution Date from the first and through the
second anniversary of the Cut-off Date, (1) the lesser of (a) the Group I Fraud
Loss Amount as of the most recent anniversary of the Cut-off Date and (b) 2% of
the aggregate outstanding principal balance of all Group I Mortgage Loans as of
the most recent anniversary of the Cut-off Date minus (2) the Fraud Losses that
would have been allocated to the Group I Subordinate Certificates in the absence
of the Group I Loss Allocation Limit since the most recent anniversary of the
Cut-off Date. As of any Distribution Date from the second and through the fifth
anniversary of the Cut-off Date, (1) the lesser of (a) the Group I Fraud Loss
Amount as of the most recent anniversary of the Cut-off Date and (b) 1% of the
aggregate outstanding principal balance of all Group I Mortgage Loans as of the
most recent anniversary of the Cut-off Date minus (2) the Fraud Losses that
would have been allocated to the Group I Subordinate Certificates in the absence
of the Group I Loss Allocation Limit since the most recent anniversary of the
Cut-off Date. After the fifth anniversary of the Cut-off Date, the Group I Fraud
Loss Amount shall be zero.
GROUP I LOSS ALLOCATION LIMIT: The meaning specified in Subsection
6.03(a)(iv) hereof.
GROUP I MORTGAGE LOANS: The Mortgage Loans included as part of Loan
Group I on the Mortgage Loan Schedule.
GROUP I NON-OFFERED CERTIFICATES: The Class I-B-4, Class I-B-5 and
Class I-B-6 Certificates.
GROUP I OFFERED CERTIFICATES: The Group I Senior Certificates, Group I
Offered Subordinate Certificates and Class I-R Certificates.
GROUP I OFFERED SUBORDINATE CERTIFICATES: The Class I-XB, I-B-1, Class
I-B-2 and Class I-B-3 Certificates.
GROUP I ORIGINAL SUBORDINATE PRINCIPAL BALANCE: The aggregate Current
Principal Amount of the Group I Subordinate Certificates as of the Closing Date.
GROUP I SENIOR CERTIFICATES: The Class I-A-1, Class I-A-2, Class I-A-3,
Class I-PO and Class I-X Certificates.
GROUP I SPECIAL HAZARD LOSS AMOUNT: Upon the initial issuance of the
Group I Certificates, approximately $2,878,065. As of any Distribution Date, the
Group I Special Hazard Loss Amount will equal the initial Group I Special Hazard
Loss Amount, minus the sum of (i) the aggregate amount of Special Hazard Losses
that would have been previously allocated to the Group I Subordinate
Certificates in the absence of the Group I Loss Allocation Limit and (ii) the
Group I Adjustment Amount.
GROUP I SPECIAL HAZARD TERMINATION DATE: The Distribution Date upon
which the Group I Special Hazard Loss Amount has been reduced to zero or a
negative number (or the Group I Cross-Over Date, if earlier).
GROUP I SUBORDINATE CERTIFICATE WRITEDOWN AMOUNT: With respect to the
Group I Subordinate Certificates, the amount by which (x) the sum of the Current
Principal Amounts of the Group I Certificates (after giving effect to the
distribution of principal and the allocation of Realized Losses in reduction of
the Current Principal Amounts of the Group I Certificates, other than the Class
I-X Certificates and Class I-XB Certificates, on such Distribution Date) exceeds
(y) the Scheduled Principal Balances of the Group I Mortgage Loans on the Due
Date related to such Distribution Date.
GROUP I SUBORDINATE CERTIFICATES: The Group I Offered Subordinate
Certificates and Group I Non-Offered Certificates.
GROUP I SUBORDINATE OPTIMAL PRINCIPAL AMOUNT: With respect to the Group
I Subordinate Certificates (other than the Class I-XB Certificates) and each
Distribution Date, an amount equal to the sum of the following from each
Subgroup (but in no event greater than the aggregate Current Principal Amount of
the Group I Subordinate Certificates immediately prior to such Distribution
Date):
(i) the Group I Subordinate Percentage of the related Non-PO
Percentage of the principal portion of all Monthly Payments due on each Group I
Mortgage Loan in the related Subgroup on the related Due Date, as specified in
the amortization schedule at the time applicable thereto (after adjustment for
previous principal prepayments but before any adjustment to such amortization
schedule by reason of any bankruptcy or similar proceeding or any moratorium or
similar waiver or grace period);
(ii) the Group I Subordinate Prepayment Percentage of the
related Non-PO Percentage of the Scheduled Principal Balance of each Group I
Mortgage Loan in the related Subgroup which was the subject of a prepayment in
full received by the Master Servicer during the applicable Prepayment Period;
(iii) the Group I Subordinate Prepayment Percentage of the
related Non-PO Percentage of all partial prepayments of principal received
during the applicable Prepayment Period for each Group I Mortgage Loan in the
related Subgroup;
(iv) the excess, if any, of (a) the Net Liquidation Proceeds
allocable to principal received during the related Prepayment Period in respect
of each Liquidated Mortgage Loan in the related Subgroup over (b) the sum of the
amounts distributable to the holders of the Group I Senior Certificates pursuant
to clause (4) of the definition of "Subgroup Principal Distribution Amount" and
"Class I-PO Certificate Principal Distribution Amount" on such Distribution
Date;
(v) the Group I Subordinate Prepayment Percentage of the
related Non-PO Percentage of the sum of (a) the Scheduled Principal Balance of
each Group I Mortgage Loan in the related Subgroup which was repurchased by the
Seller in connection with such Distribution Date and (b) the difference, if any,
between the Scheduled Principal Balance of a Group I Mortgage Loan in the
related Subgroup that has been replaced by the Seller with a substitute Group I
Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement in connection
with such Distribution Date and the Scheduled Principal Balance of such
substitute Mortgage Loan; and
(vi) on the Distribution Date on which the Current Principal
Amounts of the Group I Senior Certificates (other than the Class I-X
Certificates and Class I-PO Certificates) have all been reduced to zero, 100% of
any Subgroup Principal Distribution Amount.
GROUP I SUBORDINATE PERCENTAGE: As of any Distribution Date and with
respect to any Subgroup, 100% minus the related Subgroup Senior Percentage for
the Group I Senior Certificates related to such Subgroup. The initial Group I
Subordinate Percentage for each Subgroup will be equal to approximately 6.58%
per annum for Subgroup I-1, 6.58% per annum for Subgroup I-2 and 6.57% per annum
for Subgroup I-3.
GROUP I SUBORDINATE PREPAYMENT PERCENTAGE: As of any Distribution Date
and with respect to any Subgroup, 100% minus the related Subgroup Senior
Prepayment Percentage for such Subgroup, except that on any Distribution Date
after the Current Principal Amount of each Class of Group I Senior Certificates
have each been reduced to zero, the Group I Subordinate Prepayment Percentage
for the Group I Subordinate Certificates with respect to such Subgroup will
equal 100%.
GROUP II ADJUSTMENT AMOUNT: For each anniversary of the Cut-off Date,
the amount, if any, by which the Group II Special Hazard Loss Amount (without
giving effect to the deduction of the Group II Adjustment Amount for such
anniversary) exceeds the lesser of (A) an amount calculated by the Seller and
approved by the related Rating Agencies, which amount shall not be less than
$500,000, and (B) the greater of (x) 1.0% (or if greater than 1.0%, the highest
percentage of Group II Mortgage Loans by principal balance secured by Mortgaged
Properties in any California zip code) of the outstanding principal balance of
all Group II Mortgage Loans on the Distribution Date immediately preceding such
anniversary and (y) twice the outstanding principal balance of the Group II
Mortgage Loan which has the largest outstanding principal balance on the
Distribution Date immediately preceding such anniversary.
GROUP II ALLOCABLE SHARE: With respect to any Class of Group II
Subordinate Certificates on any Distribution Date will generally equal such
Class's pro rata share (based on the Current Principal Amount of each Class
entitled thereto) of the sum of each of the components of the definition of
Group II Subordinate Optimal Principal Amount; provided, that except as
described in the succeeding sentence, no Class of Group II Subordinate
Certificates (other than the Class of Group II Subordinate Certificates
outstanding with the lowest numerical designation) shall be entitled on any
Distribution Date to receive distributions pursuant to clauses (2), (3) and (5)
of the definition of Group II Subordinate Optimal Principal Amount unless the
Class Prepayment Distribution Trigger for the related Class is satisfied for
such Distribution Date. If on any Distribution Date the Current Principal Amount
of any Class of Group II Subordinate Certificates for which the related Class
Prepayment Distribution Trigger was satisfied on such Distribution Date is
reduced to zero, any amounts distributable to such Class pursuant to clauses
(2), (3) and (5) of the definition of Group II Subordinate Optimal Principal
Amount, to the extent of such Class's remaining Group II Allocable Share, shall
be distributed to the remaining Classes of Group II Subordinate Certificates in
reduction of their respective Current Principal Amounts, sequentially, in the
order of their numerical Class designations.
GROUP II AVAILABLE FUNDS: For any Distribution Date and Loan Group II,
an amount which generally includes, (1) all previously undistributed payments on
account of principal (including the principal portion of Monthly Payments,
Principal Prepayments and the principal amount of Net Liquidation Proceeds) and
all previously undistributed payments on account of interest received after the
Cut-Off Date and on or prior to the related Determination Date with respect to
the Group II Mortgage Loans, (2) any Monthly Advances and Compensating Interest
made by the Master Servicer or a Servicer for such Distribution Date in respect
of the Group II Mortgage Loans and (3) any amounts reimbursed by the Master
Servicer in connection with losses on certain eligible investments in connection
with funds attributable to Loan Group II, net of such Loan Group II's allocable
portion of fees payable to, and amounts reimbursable to, the Servicers, the
Master Servicer, the Securities Administrator, the Trustee and the Custodian as
provided in this Agreement and the Custodial Agreement and investment earnings
on amounts on deposit in the Master Servicer Collection Account and the
Distribution Account in connection with funds attributable to Loan Group II.
GROUP II BANKRUPTCY COVERAGE TERMINATION DATE: The Distribution Date
upon which the Group II Bankruptcy Loss Amount has been reduced to zero or a
negative number (or the Group II Cross-Over Date, if earlier).
GROUP II BANKRUPTCY LOSS AMOUNT: On each Distribution Date, $100,000,
subject to reduction as described in the Agreement, minus the aggregate amount
of previous Bankruptcy Losses with respect to the Group II Mortgage Loans.
GROUP II CERTIFICATES: The Group II Offered Certificates and Group II
Non-Offered Certificates.
GROUP II CROSS-OVER DATE: The Distribution Date on which the Current
Principal Amounts of the Group II Subordinate Certificates are reduced to zero.
GROUP II FRAUD COVERAGE TERMINATION DATE: The Distribution Date upon
which the Group II Fraud Loss Amount has been reduced to zero or a negative
number (or the Group II Cross-Over Date, if earlier).
GROUP II FRAUD LOSS AMOUNT: Upon the initial issuance of the Group II
Certificates and as of any Distribution Date prior to the second anniversary of
the Cut-Off Date, 1% of the aggregate Scheduled Principal Balances of the Group
II Mortgage Loans. As of any Distribution Date from the second and through the
fifth anniversary of the Cut-off Date, (1) the lesser of (a) the Group II Fraud
Loss Amount as of the most recent anniversary of the Cut-off Date and (b) 0.5%
of the aggregate outstanding principal balance of all Group II Mortgage Loans as
of the most recent anniversary of the Cut-off Date minus (2) the Fraud Losses
that would have been allocated to the Group II Subordinate Certificates in the
absence of the Group II Loss Allocation Limit since the most recent anniversary
of the Cut-off Date. After the fifth anniversary of the Cut-off Date, the Group
II Fraud Loss Amount shall be zero.
GROUP II LOSS ALLOCATION LIMIT: The meaning specified in Subsection
6.03(b)(ii) hereof.
GROUP II MORTGAGE LOANS: The Mortgage Loans included as part of Loan
Group II on the Mortgage Loan Schedule.
GROUP II NON-OFFERED CERTIFICATES: The Class II-B-4, Class II-B-5 and
Class II-B-6 Certificates.
GROUP II OFFERED CERTIFICATES: The Group II Senior Certificates, Group
II Offered Subordinate Certificates and Class II-R-1 Certificates.
GROUP II OFFERED SUBORDINATE CERTIFICATES: The Class II-B-1, Class
II-B-2 and Class II-B-3 Certificates.
GROUP II ORIGINAL SUBORDINATE PRINCIPAL BALANCE: The aggregate Current
Principal Amount of the Group II Subordinate Certificates as of the Closing
Date.
GROUP II SENIOR CERTIFICATES: The Class II-A-1, Class II-A-2, Class
II-A-3, Class II-A-4, Class II-PO and Class II-X Certificates.
GROUP II SENIOR OPTIMAL PRINCIPAL AMOUNT: With respect to the Group II
Senior Certificates and each Distribution Date, an amount equal to the sum of
the following (but in no event greater than the aggregate Current Principal
Amounts of the Group II Senior Certificates immediately prior to such
Distribution Date):
(1) the Group II Senior Percentage of the related Non-PO
Percentage of the principal portion of all Monthly Payments due on the
Group II Mortgage Loans on the related Due Date, as specified in the
amortization schedule at the time applicable thereto (after adjustment
for previous principal prepayments but before any adjustment to such
amortization schedule by reason of any bankruptcy or similar proceeding
or any moratorium or similar waiver or grace period);
(2) the Group II Senior Prepayment Percentage of the related
Non-PO Percentage of the Scheduled Principal Balance of each Group II
Mortgage Loan which was the subject of a prepayment in full received by
the Master Servicer during the applicable Prepayment Period;
(3) the Group II Senior Prepayment Percentage of the related
Non-PO Percentage of all partial prepayments allocated to principal
received during the applicable Prepayment Period;
(4) the lesser of (a) the Group II Senior Prepayment
Percentage of the related Non-PO Percentage of the sum of (i) all Net
Liquidation Proceeds allocable to principal received in respect of each
Group II Mortgage Loan which became a Liquidated Mortgage Loan during
the related Prepayment Period (other than Group II Mortgage Loans
described in the immediately following clause (ii)) and all Subsequent
Recoveries received in respect of each Liquidated Mortgage Loan during
the related Due Period and (ii) the Scheduled Principal Balance of each
such Group II Mortgage Loan purchased by an insurer from the Trustee
during the related Prepayment Period pursuant to the related primary
mortgage insurance policy, if any, or otherwise; and (b) the Group II
Senior Percentage of the related Non-PO Percentage of the sum of (i)
the Scheduled Principal Balance of each Group II Mortgage Loan which
became a Liquidated Mortgage Loan during the related Prepayment Period
(other than the Group II Mortgage Loans described in the immediately
following clause (ii)) and all Subsequent Recoveries received in
respect of each Liquidated Mortgage Loan during the related Due Period
and (ii) the Scheduled Principal Balance of each such Group II Mortgage
Loan that was purchased by an insurer from the Trustee during the
related Prepayment Period pursuant to the related primary mortgage
insurance policy, if any or otherwise; and
(5) the Group II Senior Prepayment Percentage of the related
Non-PO Percentage of the sum of (a) the Scheduled Principal Balance of
each Group II Mortgage Loan which was repurchased by the Seller in
connection with such Distribution Date and (b) the excess, if any, of
the Scheduled Principal Balance of each Group II Mortgage Loan that has
been replaced by the Seller with a substitute Group II Mortgage Loan
pursuant to the Mortgage Loan Purchase Agreement in connection with
such Distribution Date over the Scheduled Principal Balance of each
such substitute Group II Mortgage Loan.
GROUP II SENIOR PERCENTAGE: The lesser of (a) 100% and (b) the
percentage (carried to six places rounded up) obtained by dividing the Current
Principal Amount of the Group II Senior Certificates, immediately prior to such
Distribution Date, by the aggregate Scheduled Principal Balance of the Group II
Mortgage Loans (other than the related PO Percentage thereof with respect to the
related Discount Mortgage Loans) as of the beginning of the related Due Period.
The initial Group II Senior Percentage will be approximately 96.19%.
GROUP II SENIOR PREPAYMENT PERCENTAGE: The Senior Prepayment Percentage
for the Group II Certificates on each Distribution Date will be as follows:
PERIOD (DATES INCLUSIVE) GROUP II SENIOR PREPAYMENT PERCENTAGE
------------------------ -------------------------------------
January 25, 2006 - December 25, 2010 100%
January 25, 2011 - December 25, 2011 Group II Senior Percentage plus 70% of the Group
II Subordinate Percentage.
January 25, 2012 - December 25, 2012 Group II Senior Percentage plus 60% of the Group
II Subordinate Percentage.
January 25, 2013 - December 25, 2013 Group II Senior Percentage plus 40% of the Group
II Subordinate Percentage
January 25, 2014 - December 25, 2014 Group II Senior Percentage plus 20% of the Group
II Subordinate Percentage.
January 25, 2015 and thereafter Group II Senior Percentage.
Any scheduled reduction to the Group II Senior Prepayment Percentage
shall not be made as of any Distribution Date unless, as of the last day of the
month preceding such Distribution Date, (1) the aggregate Scheduled Principal
Balance of the Group II Mortgage Loans delinquent 60 days or more (including for
this purpose any such Group II Mortgage Loans in foreclosure and such Group II
Mortgage Loans with respect to which the related Mortgaged Property has been
acquired by the trust) averaged over the last six months, as a percentage of the
aggregate Current Principal Amount of the Group II Subordinate Certificates does
not exceed 50% and (2) cumulative Realized Losses on the Group II Mortgage Loans
do not exceed (a) 30% of the aggregate Current Principal Amount of the Group II
Original Subordinate Principal Balance if such Distribution Date occurs between
and including January 2011 and December 2011, (b) 35% of the Group II Original
Subordinate Principal Balance if such Distribution Date occurs between and
including January 2012 and December 2012, (c) 40% of the Group II Original
Subordinate Principal Balance if such Distribution Date occurs between and
including January 2013 and December 2013, (d) 45% of the Group II Original
Subordinate Principal Balance if such Distribution Date occurs between and
including January 2014 and December 2014, and (e) 50% of the Group II Original
Subordinate Principal Balance if such Distribution Date occurs during or after
January 2015.
Notwithstanding the foregoing, if on any Distribution Date, the
percentage the numerator of which is the aggregate Current Principal Amount of
the Group II Senior Certificates immediately preceding such Distribution Date,
and the denominator of which is the Scheduled Principal Balance of the Group II
Mortgage Loans as of the beginning of the related Due Period, exceeds such
percentage as of the Cut-off Date, then the Group II Senior Prepayment
Percentage for such Distribution Date will equal 100%.
GROUP II SPECIAL HAZARD LOSS AMOUNT: Upon the initial issuance of the
Group II Certificates, approximately $3,902,404. As of any Distribution Date,
the Group II Special Hazard Loss Amount will equal the initial Group II Special
Hazard Loss Amount, minus the sum of (i) the aggregate amount of Special Hazard
Losses that would have been previously allocated to the Group II Subordinate
Certificates in the absence of the Group II Loss Allocation Limit and (ii) the
Group II Adjustment Amount.
GROUP II SPECIAL HAZARD TERMINATION DATE: The Distribution Date upon
which the Group II Special Hazard Loss Amount has been reduced to zero or a
negative number (or the Group II Cross-Over Date, if earlier).
GROUP II SUBORDINATE CERTIFICATE WRITEDOWN AMOUNT: With respect to the
Group II Subordinate Certificates, the amount by which (x) the sum of the
Current Principal Amounts of the Group II Certificates (after giving effect to
the distribution of principal and the allocation of Realized Losses in reduction
of the Current Principal Amounts of the Group II Certificates, other than the
Class II-X Certificates, on such Distribution Date) exceeds (y) the Scheduled
Principal Balances of the Group II Mortgage Loans on the Due Date related to
such Distribution Date.
GROUP II SUBORDINATE CERTIFICATES: The Group II Offered Subordinate
Certificates and Group II Non-Offered Certificates.
GROUP II SUBORDINATE OPTIMAL PRINCIPAL AMOUNT: With respect to the
Group II Subordinate Certificates and each Distribution Date will be an amount
equal to the sum of the following (but in no event greater than the aggregate
Current Principal Amount of the Group II Subordinate Certificates immediately
prior to such Distribution Date):
(i) the Group II Subordinate Percentage of the related Non-PO
Percentage of the principal portion of all Monthly Payments due on each Group II
Mortgage Loan on the related Due Date, as specified in the amortization schedule
at the time applicable thereto (after adjustment for previous principal
prepayments but before any adjustment to such amortization schedule by reason of
any bankruptcy or similar proceeding or any moratorium or similar waiver or
grace period);
(ii) the Group II Subordinate Prepayment Percentage of the
related Non-PO Percentage of the Scheduled Principal Balance of each Group II
Mortgage Loan which was the subject of a prepayment in full received by the
Master Servicer during the applicable Prepayment Period;
(iii) the Group II Subordinate Prepayment Percentage of the
related Non-PO Percentage of all partial prepayments of principal received
during the applicable Prepayment Period for each Group II Mortgage Loan;
(iv) the excess, if any, of (a) the Net Liquidation Proceeds
allocable to principal received during the related Prepayment Period in respect
of each Liquidated Mortgage Loan in Loan Group II over (b) the sum of the
amounts distributable to the holders of the Group II Senior Certificates
pursuant to clause (4) of the definition of "Group II Senior Optimal Principal
Amount" on such Distribution Date;
(v) the Group II Subordinate Prepayment Percentage of the
related Non-PO Percentage of (a) the Scheduled Principal Balance of each Group
II Mortgage Loan which was repurchased by the Seller in connection with such
Distribution Date and (b) the difference, if any, between the Scheduled
Principal Balance of a Group II Mortgage Loan that has been replaced by the
Seller with a substitute Group II Mortgage Loan pursuant to the Mortgage Loan
Purchase Agreement in connection with such Distribution Date and the Scheduled
Principal Balance of such substitute Mortgage Loan; and
(vi) on the Distribution Date on which the aggregate Current
Principal Amount of the Group II Senior Certificates have all been reduced to
zero, 100% of any Group II Senior Optimal Principal Amount.
GROUP II SUBORDINATE PERCENTAGE: As of any Distribution Date and with
respect to Group II Certificates, 100% minus the Group II Senior Percentage for
the Group II Senior Certificates. The initial Group II Subordinate Percentage
will be equal to approximately 3.81%.
GROUP II SUBORDINATE PREPAYMENT PERCENTAGE: As of any Distribution Date
and with respect to Group II Certificates, 100% minus the Group II Senior
Prepayment Percentage, except that on any Distribution Date after the Current
Principal Amount of each Class of Group II Senior Certificates have each been
reduced to zero, the Group II Subordinate Prepayment Percentage for the Group II
Subordinate Certificates will equal 100%.
HOLDER: The Person in whose name a Certificate is registered in the
related Certificate Register, except that, subject to Subsections 11.02(b) and
11.05(e), solely for the purpose of giving any consent pursuant to this
Agreement, any Certificate registered in the name of the Depositor, the Master
Servicer or the Trustee or any Affiliate thereof shall be deemed not to be
outstanding and the Fractional Undivided Interest evidenced thereby shall not be
taken into account in determining whether the requisite percentage of Fractional
Undivided Interests necessary to effect any such consent has been obtained.
INDEMNIFIED PERSONS: The Trustee, the Master Servicer, the Custodian
and the Securities Administrator and their officers, directors, agents and
employees and, with respect to the Trustee, any separate co-trustee and its
officers, directors, agents and employees.
INDEPENDENT: When used with respect to any specified Person, this term
means that such Person (a) is in fact independent of the Depositor or the Master
Servicer and of any Affiliate of the Depositor or the Master Servicer, (b) does
not have any direct financial interest or any material indirect financial
interest in the Depositor or the Master Servicer or any Affiliate of the
Depositor or the Master Servicer and (c) is not connected with the Depositor or
the Master Servicer or any Affiliate as an officer, employee, promoter,
underwriter, trustee, partner, director or person performing similar functions.
INDIVIDUAL CERTIFICATE: Any Non-Offered Certificate registered in the
name of the Holder other than the Depository or its nominee.
INITIAL CERTIFICATION: The certification substantially in the form of
Exhibit One to the Custodial Agreement.
INSTITUTIONAL ACCREDITED INVESTOR: Any Person meeting the requirements
of Rule 501(a)(l), (2), (3) or (7) of Regulation D under the Securities Act or
any entity all of the equity holders in which come within such paragraphs.
INSURANCE POLICY: With respect to any Mortgage Loan, any standard
hazard insurance policy, flood insurance policy or title insurance policy.
INSURANCE PROCEEDS: Amounts paid by the insurer under any Insurance
Policy covering any Mortgage Loan or Mortgaged Property other than amounts
required to be paid over to the Mortgagor pursuant to law or the related
Mortgage Note or Security Instrument and other than amounts used to repair or
restore the Mortgaged Property or to reimburse insured expenses.
INTEREST ACCRUAL PERIOD: For each Class of Certificates and for any
Distribution Date, the calendar month preceding the month in which such
Distribution Date occurs.
INTEREST ONLY CERTIFICATES: The Class I-X, Class I-XB and Class II-X
Certificates.
INTEREST SHORTFALL: With respect to any Distribution Date and each
Mortgage Loan that during the related Prepayment Period was the subject of a
Principal Prepayment or constitutes a Relief Act Mortgage Loan, an amount
determined as follows:
(A) Partial principal prepayments received during the relevant
Prepayment Period: The difference between (i) one month's interest at the
applicable Net Mortgage Rate on the amount of such prepayment and (ii) the
amount of interest for the calendar month of such prepayment (adjusted to the
applicable Net Mortgage Rate) received at the time of such prepayment;
(B) Principal prepayments in full received during the relevant
Prepayment Period: The difference between (i) one month's interest at the
applicable Net Mortgage Rate on the Scheduled Principal Balance of such Mortgage
Loan immediately prior to such prepayment and (ii) the amount of interest for
the calendar month of such prepayment (adjusted to the applicable Net Mortgage
Rate) received at the time of such prepayment; and
(C) As to any Relief Act Mortgage Loan, the excess of (i) 30 days'
interest (or, in the case of a principal prepayment in full, interest to the
date of prepayment) on the Scheduled Principal Balance thereof (or, in the case
of a principal prepayment in part, on the amount so prepaid) at the related Net
Mortgage Rate over (ii) 30 days' interest (or, in the case of a principal
prepayment in full, interest to the date of prepayment) on such Scheduled
Principal Balance (or, in the case of a Principal Prepayment in part, on the
amount so prepaid) at the Net Mortgage Rate required to be paid by the Mortgagor
as limited by application of the Relief Act.
INTERIM CERTIFICATION: The certification substantially in the form of
Exhibit Two to the Custodial Agreement.
INVESTMENT LETTER: The letter to be furnished by each Institutional
Accredited Investor which purchases any of the Class I-B-4, Class I-B-5 or Class
I-B-6 Certificates in connection with such purchase, substantially in the form
set forth as Exhibit F-1 hereto.
ISSUER: Prime Mortgage Trust 2005-5.
JPMORGAN CHASE: JPMorgan Chase Bank, or its successor in interest.
JPMORGAN CHASE SERVICING AGREEMENT: The Servicing Agreement, dated as
of November 1, 2004 between the Seller and JPMorgan Chase, attached hereto as
Exhibit H-6, and as modified by the related Assignment Agreement.
LAST SCHEDULED DISTRIBUTION DATE: With respect to the Group I
Certificates, June 25, 2034, and, with respect to the Group II Certificates,
November 25, 2035.
LENDER-PAID PMI RATE: With respect to each Mortgage Loan covered by a
lender-paid primary mortgage insurance policy, the amount payable to the related
insurer, as stated in the Mortgage Loan Schedule.
LIQUIDATED MORTGAGE LOAN: Any defaulted Mortgage Loan as to which the
related Servicer or the Master Servicer has determined that all amounts it
expects to recover from or on account of such Mortgage Loan have been recovered.
LIQUIDATION DATE: With respect to any Liquidated Mortgage Loan, the
date on which the Master Servicer or the related Servicer has certified that
such Mortgage Loan has become a Liquidated Mortgage Loan.
LIQUIDATION EXPENSES: With respect to a Mortgage Loan in liquidation,
unreimbursed expenses paid or incurred by or for the account of the Master
Servicer or the related Servicer in connection with the liquidation of such
Mortgage Loan and the related Mortgage Property, such expenses including (a)
property protection expenses, (b) property sales expenses, (c) foreclosure and
sale costs, including court costs and reasonable attorneys' fees, and (d)
similar expenses reasonably paid or incurred in connection with liquidation.
LIQUIDATION PROCEEDS: Cash received in connection with the liquidation
of a defaulted Mortgage Loan, whether through trustee's sale, foreclosure sale,
Insurance Proceeds, condemnation proceeds or otherwise and any Subsequent
Recoveries.
LOAN GROUP: Any of Loan Group I or Loan Group II.
LOAN GROUP I: The Mortgage Loans identified as part of Loan Group I on
the Mortgage Loan Schedule.
LOAN GROUP II: The Mortgage Loans identified as part of Loan Group II
on the Mortgage Loan Schedule.
LOAN-TO-VALUE RATIO: With respect to any Mortgage Loan, the fraction,
expressed as a percentage, the numerator of which is the original principal
balance of the related Mortgage Loan and the denominator of which is the
Original Value of the related Mortgaged Property.
LOCKOUT CERTIFICATES: Any of the Class II-A-3 Certificates or Class
II-A-4 Certificates.
LOCKOUT PRIORITY AMOUNT: For any Distribution Date the product of (i)
the Shift Percentage and (ii) (x) the aggregate of the collections described in
the definition of Group II Senior Optimal Principal Amount for such Distribution
Date (without application of the Group II Senior Percentage) multiplied by (y) a
fraction, the numerator of which is the aggregate Current Principal Amount of
the Class II-A-3 Certificates and Class II-A-4 Certificates immediately prior to
that Distribution Date and the denominator of which is the sum of the related
Non-PO Percentages of the Scheduled Principal Balances of the Group II Mortgage
Loans as of the first day of the related Due Period.
LOSS ALLOCATION LIMIT: Group I Loss Allocation Limit or Group II Loss
Allocation Limit.
LOSS SEVERITY PERCENTAGE: With respect to any Distribution Date, the
percentage equivalent of a fraction, the numerator of which is the amount of
Realized Losses incurred on a Mortgage Loan and the denominator of which is the
Scheduled Principal Balance of such Mortgage Loan immediately prior to the
liquidation of such Mortgage Loan.
LOST NOTES: The original Mortgage Notes that have been lost, as
indicated on the Mortgage Loan Schedule.
MASTER SERVICER: As of the Closing Date, ▇▇▇▇▇ Fargo Bank, N.A. and,
thereafter, its respective successors in interest who meet the qualifications of
the Servicing Agreements and this Agreement.
MASTER SERVICER CERTIFICATION: A written certification covering
servicing of the Mortgage Loans by the Servicers and signed by an officer of the
Master Servicer that complies with (i) the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as
amended from time to time, and (ii) the February 21, 2003 Statement by the Staff
of the Division of Corporation Finance of the Securities and Exchange Commission
Regarding Compliance by Asset-Backed Issuers with Exchange Act Rules 13a-14 and
15d-14, as in effect from time to time; provided that if, after the Closing Date
(a) the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 is amended, (b) the Statement referred to in
clause (ii) is modified or superceded by any subsequent statement, rule or
regulation of the Securities and Exchange Commission or any statement of a
division thereof, or (c) any future releases, rules and regulations are
published by the Securities and Exchange Commission from time to time pursuant
to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, which in any such case affects the form or
substance of the required certification and results in the required
certification being, in the reasonable judgment of the Master Servicer,
materially more onerous than the form of the required certification as of the
Closing Date, the Master Servicer Certification shall be as agreed to by the
Master Servicer and the Depositor following a negotiation in good faith to
determine how to comply with any such new requirements.
MASTER SERVICER COLLECTION ACCOUNT: The trust account or accounts
created and maintained pursuant to Section 4.02, which shall be denominated
"U.S. Bank National Association, as Trustee f/b/o holders of Structured Asset
Mortgage Investments II Inc., Prime Mortgage Trust, Certificates, Series 2005-5
- Master Servicer Collection Account." The Master Servicer Collection Account
shall be an Eligible Account.
MASTER SERVICING COMPENSATION: The meaning specified in Section 3.14.
MASTER SERVICING FEE: As to each Mortgage Loan and any Distribution
Date, an amount payable out of each full payment of interest received on such
Mortgage Loan and equal to the sum of (i) one-twelfth of the Master Servicing
Fee Rate multiplied by the Scheduled Principal Balance of such Mortgage Loan as
of the first day of the related Due Period, subject to reduction as provided in
Section 3.14.
MASTER SERVICING FEE RATE: With respect to each Mortgage Loan, 0.0325%
per annum.
MATERIAL DEFECT: The meaning specified in Section 2.02(a).
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any successor
thereto.
MERS(R) SYSTEM: The system of recording transfers of Mortgages
electronically maintained by MERS.
MIN: The Mortgage Identification Number for Mortgage Loans registered
with MERS on the MERS(R) System.
MOM LOAN: With respect to any Mortgage Loan, MERS acting as the
mortgagee of such Mortgage Loan, solely as nominee for the originator of such
Mortgage Loan and its successors and assigns, at the origination thereof, or as
nominee for any subsequent assignee of the originator pursuant to an assignment
of mortgage to MERS.
MONTHLY ADVANCE: An advance of principal or interest required to be
made by the applicable Servicer pursuant to the related Servicing Agreement or
the Master Servicer pursuant to Section 6.06.
MOODY'S: ▇▇▇▇▇'▇ Investors Service, Inc. or its successor in interest.
MORTGAGE FILE: The mortgage documents listed in Section 2.01(b)
pertaining to a particular Mortgage Loan and any additional documents required
to be added to the Mortgage File pursuant to this Agreement.
MORTGAGE INTEREST RATE: The annual rate at which interest accrues from
time to time on any Mortgage Loan pursuant to the related Mortgage Note, which
rate is initially equal to the "Mortgage Interest Rate" set forth with respect
thereto on the Mortgage Loan Schedule.
MORTGAGE LOAN: A mortgage loan transferred and assigned to the Trustee
pursuant to Section 2.01 or Section 2.04 and held as a part of the Trust Fund,
as identified in the Mortgage Loan Schedule (which shall include, without
limitation, (i) with respect to each Cooperative Loan, the related Mortgage
Note, Security Agreement, Assignment of Proprietary Lease, Cooperative Stock
Certificate, Cooperative Lease and Mortgage File and all rights appertaining
thereto, and (ii) with respect to each Mortgage Loan other than a Cooperative
Loan, each related Mortgage Note, Mortgage and Mortgage File and all rights
appertaining thereto), including a mortgage loan the property securing which has
become an REO Property. Notwithstanding any provision in this Agreement to the
contrary, in no event shall the term "Mortgage Loan" include any Underlying
Mortgage Loan.
MORTGAGE LOAN PURCHASE AGREEMENT: The Mortgage Loan Purchase Agreement
dated as of December 29, 2005, between EMC Mortgage Corporation, as seller, and
Structured Asset Mortgage Investments II Inc., as purchaser, and all amendments
thereof and supplements thereto, attached as Exhibit J.
MORTGAGE LOAN SCHEDULE: The schedule, attached hereto as Exhibit B with
respect to the Mortgage Loans and as amended from time to time to reflect the
repurchase or substitution of Mortgage Loans pursuant to this Agreement.
MORTGAGE NOTE: The originally executed note or other evidence of the
indebtedness of a Mortgagor under the related Mortgage Loan.
MORTGAGED PROPERTY: Land and improvements securing the indebtedness of
a Mortgagor under the related Mortgage Loan or, in the case of REO Property,
such REO Property, or, in the case of a Cooperative Loan, the related
Cooperative Lease and Cooperative Stock. In no event, however, shall the term
"Mortgaged Property" include any mortgaged property or real estate owned
property relating to an Underlying Mortgage Loan.
MORTGAGOR: The obligor on a Mortgage Note.
NATIONAL CITY: National City Mortgage Co., or its successor in
interest.
NATIONAL CITY SERVICING AGREEMENT: The Purchase, Warranties and
Servicing Agreement, dated as of October 1, 2001, between the Seller and
National City, attached hereto as Exhibit H-7, and as modified by the related
Assignment Agreement.
NAVY FEDERAL: Navy Federal Credit Union, or its successor in interest.
NAVY FEDERAL SERVICING AGREEMENT: The Purchase, Warranties and
Servicing Agreement, dated as of June 1, 2002, between the Seller and U.S.
Central Credit Union, attached hereto as Exhibit H-8, and as modified by the
related Assignment Agreement.
NET INTEREST SHORTFALL: With respect to any Distribution Date, the
Interest Shortfall, if any, for such Distribution Date net of Compensating
Interest Payments made with respect to such Distribution Date.
NET LIQUIDATION PROCEEDS: As to any Liquidated Mortgage Loan,
Liquidation Proceeds net of (i) Liquidation Expenses which are payable therefrom
to the related Servicer or the Master Servicer in accordance with the related
Servicing Agreement or this Agreement and (ii) unreimbursed advances by the
related Servicer or the Master Servicer and Monthly Advances.
NET MORTGAGE RATE: With respect to each Mortgage Loan, the Mortgage
Interest Rate in effect from time to time less the Servicing Fee (expressed as a
per annum rate).
NON-OFFERED CERTIFICATES: The Group I Non-Offered Certificates and
Group II Non-Offered Certificates.
NON-PO PERCENTAGE: With respect to any Group I Mortgage Loan with a Net
Mortgage Rate less than 7.00% per annum, a fraction, expressed as a percentage,
(x) the numerator of which is equal to the related Net Mortgage Rate, and (y)
the denominator of which is equal to 7.00% per annum. With respect to any other
Group I Mortgage Loan, 100%.
With respect to any Group II Mortgage Loan with a Net Mortgage Rate
less than 5.50% per annum, a fraction, expressed as a percentage, (x) the
numerator of which is equal to the related Net Mortgage Rate, and (y) the
denominator of which is equal to 5.50% per annum. With respect to any other
Group II Mortgage Loan, 100%.
NONRECOVERABLE ADVANCE: With respect to any Mortgage Loan, any advance
or Monthly Advance (i) which was previously made or is proposed to be made by
the Master Servicer, the Trustee (as successor Master Servicer) or the
applicable Servicer and (ii) which, in the good faith judgment of the Master
Servicer, the Trustee or the applicable Servicer, will not or, in the case of a
proposed advance or Monthly Advance, would not, be ultimately recoverable by the
Master Servicer, the Trustee (as successor Master Servicer) or the applicable
Servicer from Liquidation Proceeds, Insurance Proceeds or future payments on the
Mortgage Loan for which such advance or Monthly Advance was made or is proposed
to be made.
NOTIONAL AMOUNT: The Notional Amount of the Class I-X Certificates, as
of any date of determination, is equal to the aggregate Scheduled Principal
Balance of the Group I Mortgage Loans with Net Mortgage Rates greater than 8.00%
per annum. For federal income tax purposes, however, the Notional Amount of the
Class I-X Certificates is an amount equal to the Uncertificated Notional Amount
of REMIC III Regular Interest I-X. The Notional Amount of the Class I-XB
Certificates, as of any date of determination, is equal to the aggregate Current
Principal Amount of the Class I-B-1, Class I-B-2 and Class I-B-3 Certificates.
For federal income tax purposes, however, the Notional Amount of the Class I-XB
Certificates is the aggregate Uncertificated Principal Balance of REMIC III
Regular Interest I-B-1, REMIC III Regular Interest I-B-2 and REMIC III Regular
Interest I-B-3. The Notional Amount of the Class II-X Certificates, as of any
date of determination, is equal to the aggregate Scheduled Principal Balance of
the Group II Mortgage Loans with Net Mortgage Rates greater than 5.50% per
annum. For federal income tax purposes, however, the Notional Amount of the
Class II-X Certificates is an amount equal to the Uncertificated Notional Amount
of REMIC II Regular Interest II-X.
OFFICER'S CERTIFICATE: A certificate signed by the Chairman of the
Board, the Vice Chairman of the Board, the President or a Vice President or
Assistant Vice President or other authorized officer of the Master Servicer or
the Depositor, as applicable, and delivered to the Trustee, as required by this
Agreement.
OPINION OF COUNSEL: A written opinion of counsel who is or are
acceptable to the Trustee or the Master Servicer, as applicable, and who, unless
required to be Independent (an "Opinion of Independent Counsel"), may be
internal counsel for the Company, the Master Servicer or the Depositor.
ORIGINAL SUBORDINATE PRINCIPAL BALANCE: The Group I Original
Subordinate Principal Balance or Group II Original Subordinate Principal
Balance.
ORIGINAL VALUE: The lesser of (i) the Appraised Value or (ii) the sales
price of a Mortgaged Property at the time of origination of a Mortgage Loan,
except in instances where either clauses (i) or (ii) is unavailable, the other
may be used to determine the Original Value, or if both clauses (i) and (ii) are
unavailable, Original Value may be determined from other sources reasonably
acceptable to the Depositor.
OUTSTANDING MORTGAGE LOAN: With respect to any Due Date, a Mortgage
Loan which, prior to such Due Date, was not the subject of a Principal
Prepayment in full, did not become a Liquidated Mortgage Loan and was not
purchased or replaced.
OUTSTANDING PRINCIPAL BALANCE: As of the time of any determination, the
principal balance of a Mortgage Loan remaining to be paid by the Mortgagor, or,
in the case of an REO Property, the principal balance of the related Mortgage
Loan remaining to be paid by the Mortgagor at the time such property was
acquired by the Trust Fund less any Net Liquidation Proceeds with respect
thereto to the extent applied to principal.
PASS-THROUGH RATE: As to each Class of Certificates, the REMIC I
Regular Interests, the REMIC II Regular Interests and the REMIC III Regular
Interests, the rate of interest determined as provided with respect thereto in
Section 5.01(c). Any monthly calculation of interest at a stated rate shall be
based upon annual interest at such rate divided by twelve.
PAYING AGENT: The Securities Administrator or any successor paying
agent appointed hereunder.
PERMITTED INVESTMENTS: Any one or more of the following obligations or
securities held in the name of the Trustee for the benefit of the related
Certificateholders:
(i) direct obligations of, and obligations the timely payment
of which are 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;
(ii) (a) demand or time deposits, federal funds or bankers'
acceptances issued by any depository institution or trust company incorporated
under the laws of the United States of America or any state thereof (including
the Trustee, the Securities Administrator or the Master Servicer or its
Affiliates acting in its commercial banking capacity) and subject to supervision
and examination by federal and/or state banking authorities, provided that the
commercial paper and/or the short-term debt rating and/or the long-term
unsecured debt obligations of such depository institution or trust company at
the time of such investment or contractual commitment providing for such
investment have the Applicable Credit Rating or better from each Rating Agency
and (b) any other demand or time deposit or certificate of deposit that is fully
insured by the Federal Deposit Insurance Corporation;
(iii) repurchase obligations with respect to (a) any security
described in clause (i) above or (b) any other security issued or guaranteed by
an 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,
in either case entered into with a depository institution or trust company
(acting as principal) described in clause (ii)(a) above where the Trustee holds
the security therefor;
(iv) securities bearing interest or sold at a discount issued
by any corporation (including the Trustee, the Securities Administrator or the
Master Servicer or its Affiliates) incorporated under the laws of the United
States of America or any state thereof that have the Applicable Credit Rating or
better from each Rating Agency at the time of such investment 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 securities issued by such corporation and held as part of the Trust to exceed
10% of the aggregate Outstanding Principal Balances of all the Mortgage Loans
and Permitted Investments held as part of the Trust;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable on demand or on a
specified date not more than one year after the date of issuance thereof) having
the Applicable Credit Rating or better from each Rating Agency at the time of
such investment;
(vi) a Reinvestment Agreement issued by any bank, insurance
company or other corporation or entity;
(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 to the Trustee;
(vii) any money market fund (including any such fund managed
or advised by the Trustee, Securities Administrator or Master Servicer or any
affiliate thereof) which at the date of acquisition of the interest in such fund
and throughout the time such interests are held in such fund has the highest
applicable long term rating by each Rating Agency or such lower rating as will
not result in the downgrading or withdrawal of the ratings then assigned to the
Certificates by each Rating Agency; and
(viii) any money market or common trust fund having the
Applicable Credit Rating or better from each Rating Agency, including any such
fund for which the Trustee, the Securities Administrator or Master Servicer or
any affiliate of the Trustee, the Securities Administrator or Master Servicer
acts as a manager or an advisor; 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
obligations underlying such instrument or if such security provides for payment
of both principal and interest with a yield to maturity in excess of 120% of the
yield to maturity at par or if such instrument or security is purchased at a
price greater than par.
PERMITTED TRANSFEREE: Any Person other than a Disqualified Organization
or an "electing large partnership" (as defined by Section 775 of the Code).
PERSON: Any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
PHH MORTGAGE: PHH Mortgage Corporation, or its successor in interest.
PHH MORTGAGE SERVICING AGREEMENT: The Mortgage Loan Flow Purchase, Sale
and Servicing Agreement, dated as of April 26, 2001, among the Seller, PHH
Mortgage and ▇▇▇▇▇▇'▇ Gate Residential Mortgage Trust, attached hereto as
Exhibit H-9, and as modified by the related Assignment Agreement.
PHYSICAL CERTIFICATES: The Residual Certificates and the Non-Offered
Certificates.
PO PERCENTAGE: With respect to any Discount Mortgage Loan in Loan Group
I, a fraction expressed as a percentage, (x) the numerator of which is equal to
7.00% minus the related Net Mortgage Rate, and (y) the denominator of which is
equal to 7.00% per annum. With respect to any Discount Mortgage Loan in Loan
Group II, a fraction expressed as a percentage, (x) the numerator of which is
equal to 5.50% minus the related Net Mortgage Rate, and (y) the denominator of
which is equal to 5.50% per annum.
PREPAYMENT CHARGE: With respect to any Mortgage Loan, the charges or
premiums, if any, due in connection with a full or partial prepayment of such
Mortgage Loan in accordance with the terms thereof.
PREPAYMENT INTEREST SHORTFALL: With respect to any Distribution Date,
the aggregate shortfall, if any, in collections of interest (adjusted to the
related Net Mortgage Rates) on Mortgage Loans resulting from (a) prepayments in
full received during the related Prepayment Period and (b) the partial
prepayments received during the related Prepayment Period to the extent applied
prior to the Due Date in the month of the Distribution Date.
PREPAYMENT PERIOD: With respect to any Distribution Date and the
related Servicer, such period as is provided in the related Servicing Agreement.
PRIMARY MORTGAGE INSURANCE POLICY: Any primary mortgage guaranty
insurance policy issued in connection with a Mortgage Loan which provides
compensation to a Mortgage Note holder in the event of default by the obligor
under such Mortgage Note or the related Security Instrument, if any or any
replacement policy therefor through the related Interest Accrual Period for such
Class relating to a Distribution Date.
PRINCIPAL PREPAYMENT: Any payment (whether partial or full) or other
recovery of principal on a Mortgage Loan which is received in advance of its
scheduled Due Date to the extent that it is not accompanied by an amount as to
interest representing scheduled interest due on any date or dates in any month
or months subsequent to the month of prepayment, including Insurance Proceeds
and Repurchase Proceeds, but excluding the principal portion of Net Liquidation
Proceeds received at the time a Mortgage Loan becomes a Liquidated Mortgage
Loan.
PRINCIPAL ONLY CERTIFICATES: The Class I-PO Certificates and Class
II-PO Certificates.
PROTECTED ACCOUNT: An account established and maintained for the
benefit of Holders of the Certificates by each Servicer with respect to the
related Mortgage Loans and with respect to REO Property pursuant to the
applicable Servicing Agreement.
QIB: A Qualified Institutional Buyer as defined in Rule 144A
promulgated under the Securities Act.
QUALIFIED INSURER: Any insurance company duly qualified as such under
the laws of the state or states in which the related Mortgaged Property or
Mortgaged Properties is or are located, duly authorized and licensed in such
state or states to transact the type of insurance business in which it is
engaged and approved as an insurer by the Master Servicer, so long as the claims
paying ability of which is acceptable to the Rating Agencies for pass-through
certificates having the same rating as the related Certificates rated by the
Rating Agencies as of the Closing Date.
RATING AGENCIES: With respect to the Group I Certificates, S&P and
▇▇▇▇▇'▇ and with respect to the Group II Certificates, S&P and Fitch.
REALIZED LOSS: Any (i) Bankruptcy Loss or (ii) as to any Liquidated
Mortgage Loan, (x) the Outstanding Principal Balance of such Liquidated Mortgage
Loan plus accrued and unpaid interest thereon at the Mortgage Interest Rate
through the last day of the month of such liquidation, less (y) the related Net
Liquidation Proceeds with respect to such Mortgage Loan and the related Mortgage
Property. In addition, to the extent the Paying Agent receives Subsequent
Recoveries with respect to any Mortgage Loan, the amount of the Realized Loss
with respect to that Mortgage Loan will be reduced to the extent such recoveries
are applied to reduce the Current Principal Amount of any Class of Certificates
on any Distribution Date.
RECORD DATE: With respect to any Distribution Date and any Class of
Certificates, the close of business on the last Business Day of the month
immediately preceding the month of such Distribution Date.
REGULATION S: Regulation S promulgated under the Securities Act.
REGULATION S GLOBAL CERTIFICATES: The Regulation S Temporary Global
Certificates and the Regulation S Permanent Global Certificates.
REGULATION S PERMANENT GLOBAL CERTIFICATES: As defined in Section 5.09
(b) hereof.
REGULATION S TEMPORARY GLOBAL CERTIFICATES: As defined in Section
5.09(c) hereof.
RELIEF ACT: The Servicemembers Civil Relief Act, formerly known as the
Soldiers' and Sailors' Civil Relief Act of 1940, as amended, or similar state
law.
RELIEF ACT MORTGAGE LOAN: Any Mortgage Loan as to which the Scheduled
Payment thereof has been reduced due to the application of the Relief Act.
REMIC: A real estate mortgage investment conduit, as defined in the
Code.
REMIC I: That group of assets contained in the Trust Fund designated as
a REMIC consisting of (i) the Group I Mortgage Loans, (ii) the portion of the
Master Servicer Collection Account relating to the Group I Mortgage Loans, (iii)
any REO Property relating to the Group I Mortgage Loans, (iv) the rights with
respect to the related Servicing Agreement relating to the Group I Mortgage
Loans, (v) the rights with respect to any related Assignment Agreement relating
to the Group I Mortgage Loans, (vi) the Class I-R Deposit and (vii) any proceeds
of the foregoing.
REMIC I INTERESTS: The REMIC I Regular Interests and the Class I-R-1
Certificates.
REMIC I REGULAR INTERESTS: REMIC I Regular Interests 1-Sub, 2-Sub,
3-Sub, PO, 1-ZZZ, 2-ZZZ, 3-ZZZ, X, I-R-2 and I-R-3.
REMIC I SUBORDINATED BALANCE RATIO: The ratio among the Uncertificated
Principal Balances of each of the REMIC I Regular Interests ending with the
designation "Sub," equal to the ratio among, with respect to each such REMIC I
Regular Interest, the excess of (x) the aggregate Scheduled Principal Balance of
the Group I Mortgage Loans in the related Subgroup (other than the related PO
Percentage of the Scheduled Principal Balance of any such Group I Mortgage
Loans) over (y) the aggregate Current Principal Amount of the Group I Senior
Certificates (other than the Class I-PO Certificates) in the related Subgroup.
REMIC II: That group of assets contained in the Trust Fund designated
as a REMIC consisting of (i) the Group II Mortgage Loans, (ii) the portion of
the Master Servicer Collection Account relating to the Group II Mortgage Loans,
(iii) any REO Property relating to the Mortgage Loans, (iv) the rights with
respect to the related Servicing Agreement relating to the Group II Mortgage
Loans, (v) the rights with respect to any related Assignment Agreement relating
to the Group II Mortgage Loans, (vi) the Class II-R Deposit and (vii) any
proceeds of the foregoing.
REMIC II INTERESTS: The REMIC II Regular Interests and the Class II-R-1
Certificates.
REMIC II REGULAR INTERESTS: REMIC II Regular Interests ▇▇-▇-▇, ▇▇-▇-▇,
▇▇-▇-▇, ▇▇-▇-▇, II-PO, II-X, ▇▇-▇-▇, ▇▇-▇-▇, ▇▇-▇-▇, ▇▇-▇-▇, ▇▇-▇-▇ and II-B-6.
REMIC III: That group of assets contained in the Trust Fund designated
as a REMIC consisting of the REMIC I Regular Interests.
REMIC III INTERESTS: The REMIC III Regular Interests and the Class
I-R-2 Certificates.
REMIC III REGULAR INTERESTS: REMIC III Regular Interests ▇-▇-▇, ▇-▇-▇,
▇-▇-▇, I-PO, I-X, ▇-▇-▇, ▇-▇-▇, ▇-▇-▇, ▇-▇-▇, ▇-▇-▇, ▇-▇-▇ and I-R-3.
REMIC IV: That group of assets contained in the Trust Fund designated
as a REMIC consisting of the REMIC II Regular Interests and the REMIC III
Regular Interests.
REMIC IV CERTIFICATES: Each Class of Certificates other than the Class
I-R-1, Class I-R-2 and Class II-R-1 Certificates.
REMIC OPINION: An Opinion of Independent Counsel to the effect that the
proposed action described therein would not, under the REMIC Provisions, (i)
cause any REMIC to fail to qualify as a REMIC while any regular interest in such
REMIC is outstanding, (ii) result in a tax on prohibited transactions with
respect to any REMIC or (iii) constitute a taxable contribution to any REMIC
after the Startup Day.
REMIC PROVISIONS: The provisions of the federal income tax law relating
to REMICs, which appear at Sections 860A through 860G of the Code, and related
provisions and regulations promulgated thereunder, as the foregoing may be in
effect from time to time.
REO PROPERTY: A Mortgaged Property acquired in the name of the Trustee,
for the benefit of Certificateholders, by foreclosure or deed-in-lieu of
foreclosure in connection with a defaulted Mortgage Loan.
REPURCHASE PRICE: With respect to any Mortgage Loan (or any property
acquired with respect thereto) required to be repurchased by the Seller pursuant
to the Mortgage Loan Purchase Agreement or Article II of this Agreement, an
amount equal to the sum of (i)(a) 100% of the Outstanding Principal Balance of
such Mortgage Loan as of the date of repurchase (or if the related Mortgaged
Property was acquired with respect thereto, 100% of the Outstanding Principal
Balance at the date of the acquisition), plus (b) accrued but unpaid interest on
the Outstanding Principal Balance at the related Mortgage Interest Rate, through
and including the last day of the month of repurchase, plus (c) any unreimbursed
Monthly Advances and servicing advances payable to the Servicer of the Mortgage
Loan or to the Master Servicer and (ii) any costs and damages (if any) incurred
by the Trust in connection with any violation of such Mortgage Loan of any
predatory lending laws.
REPURCHASE PROCEEDS: The Repurchase Price in connection with any
repurchase of a Mortgage Loan by the Seller and any cash deposit in connection
with the substitution of a Mortgage Loan.
REQUEST FOR RELEASE: A request for release in the form attached hereto
as Exhibit D.
REQUIRED INSURANCE POLICY: With respect to any Mortgage Loan, any
insurance policy which is required to be maintained from time to time under this
Agreement with respect to such Mortgage Loan.
RESIDUAL CERTIFICATES: Any of the Class I-R-1, Class I-R-2, Class I-R-3
and Class II-R-1 Certificates.
RESPONSIBLE OFFICER: Any officer assigned to the Corporate Trust Office
(or any successor thereto), including any Vice President, Assistant Vice
President, Trust Officer, any Assistant Secretary, any trust officer or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and having direct
responsibility for the administration of this Agreement, and any other officer
of the Trustee to whom a matter arising hereunder may be referred.
RULE 144A CERTIFICATE: The certificate to be furnished by each
purchaser of a Non-Offered Certificate (which is also a Physical Certificate)
which is a Qualified Institutional Buyer as defined under Rule 144A promulgated
under the Securities Act, substantially in the form set forth as Exhibit F-2
hereto.
S&P: Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.,
and its successors in interest.
SCHEDULED PAYMENT: With respect to any Mortgage Loan and any month, the
scheduled payment or payments of principal and interest due during such month on
such Mortgage Loan which either is payable by a Mortgagor in such month under
the related Mortgage Note or, in the case of REO Property, would otherwise have
been payable under the related Mortgage Note.
SCHEDULED PRINCIPAL: The principal portion of any Scheduled Payment.
SCHEDULED PRINCIPAL BALANCE: With respect to any Mortgage Loan on any
Distribution Date, (i) the unpaid principal balance of such Mortgage Loan as of
the close of business on the related Due Date (i.e., taking account of the
principal payment to be made on such Due Date and irrespective of any
delinquency in its payment), as specified in the amortization schedule at the
time relating thereto (before any adjustment to such amortization schedule by
reason of any bankruptcy or similar proceeding occurring after the Cut-off Date
(other than a Deficient Valuation) or any moratorium or similar waiver or grace
period) and less (ii) any Principal Prepayments (including the principal portion
of Net Liquidation Proceeds) received during or prior to the related Prepayment
Period; provided that the Scheduled Principal Balance of a Liquidated Mortgage
Loan is zero.
SECURITIES ACT: The Securities Act of 1933, as amended.
SECURITIES ADMINISTRATOR: ▇▇▇▇▇ Fargo Bank, N.A., or its successor in
interest, or any successor securities administrator appointed as herein
provided.
SECURITIES LEGEND: "THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR UNDER ANY STATE SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS
CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER
APPLICABLE LAWS AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT
("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR
ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER
HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER
IS BEING MADE IN RELIANCE ON RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (3)
IN CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR" WITHIN THE
MEANING THEREOF IN RULE 501(a)(1), (2), (3) or (7) OF REGULATION D UNDER THE ACT
OR ANY ENTITY IN WHICH ALL OF THE EQUITY OWNERS COME WITHIN SUCH PARAGRAPHS
PURCHASING NOT FOR DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, SUBJECT TO
(A) THE RECEIPT BY THE TRUSTEE AND THE CERTIFICATE REGISTRAR OF A LETTER
SUBSTANTIALLY IN THE FORM PROVIDED IN THE AGREEMENT AND (B) THE RECEIPT BY THE
TRUSTEE AND THE CERTIFICATE REGISTRAR OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE
TRUSTEE AND THE CERTIFICATE REGISTRAR THAT SUCH REOFFER, RESALE, PLEDGE OR
TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS OR
IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE UNITED
STATES AND ANY OTHER APPLICABLE JURISDICTION. THIS CERTIFICATE MAY NOT BE
ACQUIRED DIRECTLY OR INDIRECTLY BY, OR ON BEHALF OF, AN EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED [in the case of a Residual Certificate
or a Class I-B-4, Class I-B-5, Class I-B-6, Class II-B-4, Class II-B-5 and Class
II-B-6 Certificate] UNLESS THE OPINION OF COUNSEL REQUIRED BY SECTION 5.07 OF
THE POOLING AND SERVICING AGREEMENT IS PROVIDED [in the case of the Class I-B-4,
Class I-B-5, Class I-B-6, Class II-B-4, Class II-B-5 and Class II-B-6
Certificate] UNLESS THE TRANSFEREE CERTIFIES OR REPRESENTS THAT THE PROPOSED
TRANSFER AND HOLDING OF A CERTIFICATE AND THE SERVICING, MANAGEMENT AND
OPERATION OF THE TRUST AND ITS ASSETS: (I) WILL NOT RESULT IN ANY PROHIBITED
TRANSACTION WHICH IS NOT COVERED UNDER AN INDIVIDUAL OR CLASS PROHIBITED
TRANSACTION EXEMPTION, INCLUDING, BUT NOT LIMITED TO, PROHIBITED TRANSACTION
EXEMPTION ("PTE") 84-14, ▇▇▇ ▇▇-▇▇, ▇▇▇ ▇▇-▇, ▇▇▇ 95-60 OR PTE 96-23 AND (II)
WILL NOT GIVE RISE TO ANY ADDITIONAL FIDUCIARY DUTIES ON THE PART OF THE
DEPOSITOR, THE SECURITIES ADMINISTRATOR, THE MASTER SERVICER, ANY SERVICER OR
THE TRUSTEE, WHICH WILL BE DEEMED REPRESENTED BY AN OWNER OF A BOOK-ENTRY
CERTIFICATE OR A GLOBAL CERTIFICATE AND WILL BE EVIDENCED BY A REPRESENTATION OR
AN OPINION OF COUNSEL TO SUCH EFFECT BY OR ON BEHALF OF AN INSTITUTIONAL
ACCREDITED INVESTOR."
SECURITY AGREEMENT: With respect to a Cooperative Loan, the agreement
creating a security interest in favor of the originator in the related
Cooperative Stock.
SECURITY INSTRUMENT: A written instrument creating a valid first lien
on a Mortgaged Property securing a Mortgage Note, which may be any applicable
form of mortgage, deed of trust, deed to secure debt or security deed, including
any riders or addenda thereto.
SELLER: EMC Mortgage Corporation, as mortgage loan seller under the
Mortgage Loan Purchase Agreement.
SENIOR CERTIFICATES: The Group I Senior Certificates and Group II
Senior Certificates.
SERVICER: With respect to each Mortgage Loan, CitiMortgage, EMC, Fifth
Third, GMAC, GreenPoint, JPMorgan Chase, National City, Navy Federal, PHH
Mortgage, SunTrust, WAMU and ▇▇▇▇▇ Fargo.
SERVICER REMITTANCE DATE: With respect to each Mortgage Loan, the date
set forth in the Servicing Agreement.
SERVICING AGREEMENTS: The CitiMortgage Servicing Agreement, EMC
Servicing Agreement, Fifth Third Servicing Agreement, GMAC Servicing Agreement,
GreenPoint Servicing Agreement, JPMorgan Chase Servicing Agreement, National
City Servicing Agreement, Navy Federal Servicing Agreement, PHH Mortgage
Servicing Agreement, SunTrust Servicing Agreement, WAMU Servicing Agreement and
▇▇▇▇▇ Fargo Servicing Agreement.
SERVICING FEE: As to any Mortgage Loan and Distribution Date, an amount
equal to the product of (i) the Scheduled Principal Balance of such Mortgage
Loan as of the Due Date in the preceding calendar month and (ii) the applicable
Servicing Fee Rate.
SERVICING FEE RATE: As to any Mortgage Loan, a per annum rate as set
forth in the Mortgage Loan Schedule.
SHIFT PERCENTAGE: On any Distribution Date occurring during the periods
set forth below will be as follows:
PERIOD (DATES INCLUSIVE) SHIFT PERCENTAGE
-------------------------------------------------------- ----------------
January 25, 2006 - December 25, 2010.................... 0%
January 25, 2011 - December 25, 2011.................... 30%
January 25, 2012 - December 25, 2012.................... 40%
January 25, 2013 - December 25, 2013.................... 60%
January 25, 2014 - December 25, 2014.................... 80%
January 25, 2015 and thereafter......................... 100%
SPECIAL HAZARD LOSS: With respect to any Mortgage Loan, a Realized Loss
attributable to damage or a direct physical loss suffered by a Mortgaged
Property (including any Realized Loss due to the presence or suspected presence
of hazardous wastes or substances on a Mortgaged Property) other than any such
damage or loss covered by a hazard policy or a flood insurance policy required
to be maintained in respect of such Mortgaged Property under this Agreement or
any loss due to normal wear and tear or certain other causes.
SPECIAL HAZARD LOSS AMOUNT: Group I Special Hazard Loss Amount or Group
II Special Hazard Loss Amount.
SPECIAL HAZARD TERMINATION DATE: Group I Special Hazard Termination
Date or Group II Special Hazard Termination Date.
STARTUP DAY: December 29, 2005.
SUBGROUP: Any of Subgroup I-1, Subgroup I-2 and Subgroup I-3.
SUBGROUP I-1: All of the Group I Mortgage Loans with a Net Mortgage
Rate of less than or equal to 7.00% per annum plus the Subgroup I-1 Fraction of
the principal balance of any Group I Mortgage Loan with a Net Mortgage Rate of
greater than 7.00% per annum and less than 7.50% per annum.
SUBGROUP I-1 CERTIFICATES: The Class I-A-1 Certificates and Class I-PO
Certificates.
SUBGROUP I-1 FRACTION: With respect to any Group I Mortgage Loan with a
Net Mortgage Rate of greater than 7.00% per annum and less than 7.50% per annum,
a fraction, (x) the numerator of which is equal to 7.50% per annum minus the Net
Mortgage Rate of such Group I Mortgage Loan, and (y) the denominator of which is
equal to 0.50%.
SUBGROUP I-2: All of the Group I Mortgage Loans with a Net Mortgage
Rate of 7.50% per annum plus the Subgroup I-2A Fraction of the principal balance
of any Group I Mortgage Loan with a Net Mortgage Rate of greater than 7.00% per
annum and less than 7.50% per annum and the Subgroup I-2B Fraction of the
principal balance of any Group I Mortgage Loan with a Net Mortgage Rate greater
than 7.50% per annum and less than 8.00% per annum.
SUBGROUP I-2 CERTIFICATES: The Class I-A-2 Certificates.
SUBGROUP I-2A FRACTION: With respect to any Group I Mortgage Loan with
a Net Mortgage Rate of greater than 7.00% per annum and less than 7.50% per
annum, a fraction, (x) the numerator of which is equal to Net Mortgage Rate
minus 7.00% per annum of such Group I Mortgage Loan, and (y) the denominator of
which is equal to 0.50%.
SUBGROUP I-2B FRACTION: With respect to any Group I Mortgage Loan with
a Net Mortgage Rate of greater than 7.50% per annum and less than 8.00% per
annum, a fraction, (x) the numerator of which is equal to 8.00% per annum minus
the Net Mortgage Rate of such Group I Mortgage Loan, and (y) the denominator of
which is equal to 0.50%.
SUBGROUP I-3: All of the Group I Mortgage Loans with a Net Mortgage
Rate of greater than or equal to 8.00% per annum, plus the Subgroup I-3 Fraction
of the principal balance of any Group I Mortgage Loans with a Net Mortgage Rate
greater than 7.50% per annum and less than 8.00% per annum.
SUBGROUP I-3 CERTIFICATES: The Class I-A-3 Certificates.
SUBGROUP I-3 FRACTION: With respect to any Group I Mortgage Loan with a
Net Mortgage Rate of greater than 7.50% per annum and less than 8.00% per annum,
a fraction, (x) the numerator of which is equal to the Net Mortgage Rate of such
Group I Mortgage Loans minus 7.50% per annum, and (y) the denominator of which
is equal to 0.50%.
SUBGROUP PRINCIPAL DISTRIBUTION AMOUNT: With respect to each of
Subgroup I-1, Subgroup I-2 and Subgroup I-3 Certificates and each Distribution
Date will be an amount equal to the sum of the following (but in no event
greater than the aggregate Current Principal Amount of each of the Subgroup I-1,
Subgroup I-2 and Subgroup I-3 Certificates, as applicable, immediately prior to
such Distribution Date):
(1) the applicable Subgroup Senior Percentage of the related
Non-PO Percentage of the principal portion of all Scheduled Payments
due on the Mortgage Loans in the related Subgroup on the related Due
Date, as specified in the amortization schedule at the time applicable
thereto (after adjustment for previous Principal Prepayments but before
any adjustments to such amortization schedule by reason of any
bankruptcy or similar proceeding or any moratorium or similar waiver or
grace period);
(2) the applicable Subgroup Senior Prepayment Percentage of
the related Non-PO Percentage of the Scheduled Principal Balance of
each Mortgage Loan in the related Subgroup which was the subject of a
Principal Prepayment in full received by the Master Servicer during the
applicable Prepayment Period;
(3) the applicable Subgroup Senior Prepayment Percentage of
the related Non-PO Percentage of all Principal Prepayments in part
received by the Master Servicer prepayments during the applicable
Prepayment Period with respect to each Mortgage Loan in the related
Subgroup;
(4) the lesser of (a) the applicable Subgroup Senior
Prepayment Percentage of the related Non-PO Percentage of the sum of
(i) all Net Liquidation Proceeds allocable to principal received in
respect of each Mortgage Loan in the related Subgroup which became a
Liquidated Mortgage Loan during the related Prepayment Period (other
than Mortgage Loans described in the immediately following clause (ii))
and all Subsequent Recoveries received in respect of each Liquidated
Mortgage Loan in the related Subgroup during the related Due Period and
(ii) the Scheduled Principal Balance of each such Mortgage Loan in the
related Subgroup purchased by an insurer from the Trustee during the
related Prepayment Period pursuant to the related Primary Mortgage
Insurance Policy, if any, or otherwise; and (b) the applicable Subgroup
Senior Percentage of the related Non-PO Percentage of the sum of (i)
the Scheduled Principal Balance of each Mortgage Loan in the related
Subgroup which became a Liquidated Mortgage Loan during the related
Prepayment Period (other than the Mortgage Loans described in the
immediately following clause (ii)) and all Subsequent Recoveries
received in respect of each Liquidated Mortgage Loan in the related
Subgroup during the related Due Period and (ii) the Scheduled Principal
Balance of each such Mortgage Loan in the related Subgroup that was
purchased by an insurer from the Trustee during the related Prepayment
Period pursuant to the related Primary Mortgage Insurance Policy, if
any or otherwise; and
(5) the applicable Subgroup Senior Prepayment Percentage of
the related Non-PO Percentage of the sum of (a) the Scheduled Principal
Balance of each Mortgage Loan in the related Subgroup which was
repurchased by the Issuer in connection with such Distribution Date and
(b) the excess, if any, of the Scheduled Principal Balance of each
Mortgage Loan in the related Subgroup that has been replaced by the
Issuer with a substitute Mortgage Loan pursuant to the Mortgage Loan
Purchase Agreement in connection with such Distribution Date over the
Scheduled Principal Balance of each such substitute Mortgage Loan.
SUBGROUP SENIOR PERCENTAGE: With respect to each Subgroup, the lesser
of (a) 100% and (b) the percentage (carried to six places rounded up) obtained
by dividing the aggregate Current Principal Amount of the Senior Certificates of
such Subgroup (other than any Class I-PO Certificates), immediately prior to
such Distribution Date, by the aggregate Scheduled Principal Balance of the
Mortgage Loans in the related Subgroup (other than the related PO Percentage
thereof with respect to the related Discount Mortgage Loans) as of the beginning
of the related Due Period. The initial Subgroup Senior Percentage for the Group
I Senior Certificates will be approximately 93.42% per annum for Subgroup I-1,
93.42% per annum for Subgroup I-2 and 93.43% per annum for Subgroup I-3.
SUBGROUP SENIOR PREPAYMENT PERCENTAGE: The Subgroup Senior Prepayment
Percentage for the Subgroup I-1, Subgroup I-2 and Subgroup I-3 Certificates, on
any Distribution Date occurring during the periods set forth below will be as
follows:
PERIOD (DATES INCLUSIVE) SUBGROUP SENIOR PREPAYMENT PERCENTAGE
------------------------ -------------------------------------
January 25, 2006 - December 25, 2010 100%
January 25, 2011 - December 25, 2011 Subgroup Senior Percentage for the
related Subgroup Certificates plus
70% of the related Subgroup
Subordinate Percentage.
January 25, 2012 - December 25, 2012 Subgroup Senior Percentage for the
related Subgroup Certificates plus
60% of the related Subgroup
Subordinate Percentage.
January 25, 2013 - December 25, 2013 Subgroup Senior Percentage for the
related Subgroup Certificates plus
40% of the related Subgroup
Subordinate Percentage.
January 25, 2014 - December 25, 2014 Subgroup Senior Percentage for the
related Subgroup Certificates plus
20% of the related Subgroup
Subordinate Percentage.
January 25, 2015 and thereafter Subgroup Senior Percentage for the
related Subgroup Certificates.
Any scheduled reduction to the Subgroup Senior Prepayment Percentage
for the Subgroup I-1, Subgroup I-2 and Subgroup I-3 Certificates shall not be
made as of any Distribution Date unless, as of the last day of the month
preceding such Distribution Date (1) the aggregate Scheduled Principal Balance
of the Group I Mortgage Loans delinquent 60 days or more (including for this
purpose any such Group I Mortgage Loans in foreclosure and such Group I Mortgage
Loans with respect to which the related Mortgaged Property has been acquired by
the Trust) averaged over the last six months, as a percentage of the aggregate
Current Principal Amount of the Group I Subordinate Certificates does not exceed
50% and (2) cumulative Realized Losses on the Group I Mortgage Loans do not
exceed (a) 30% of the aggregate Current Principal Amount of the Group I Original
Subordinate Principal Balance if such Distribution Date occurs between and
including January 2011 and December 2011, (b) 35% of the Group I Original
Subordinate Principal Balance if such Distribution Date occurs between and
including January 2012 and December 2012, (c) 40% of the Group I Original
Subordinate Principal Balance if such Distribution Date occurs between and
including January 2013 and December 2013, (d) 45% of the Group I Original
Subordinate Principal Balance if such Distribution Date occurs between and
including January 2014 and December 2014, and (e) 50% of the Group I Original
Subordinate Principal Balance if such Distribution Date occurs during or after
January 2015.
Notwithstanding the foregoing, if on any Distribution Date, the
percentage for Subgroup I-1, Subgroup I-2 or Subgroup I-3, the numerator of
which is the aggregate Current Principal Amount of the Senior Certificates of
such Subgroup immediately preceding such Distribution Date, and the denominator
of which is the Scheduled Principal Balance of the Mortgage Loans in such
Subgroup (other than the related PO Percentage thereof with respect to the
related Discount Mortgage Loans) as of the beginning of the related Due Period,
exceeds such percentage as of the Cut-off Date, then the Subgroup Senior
Prepayment Percentage with respect to the Group I Senior Certificates of each
Subgroup for such Distribution Date will equal 100%.
SUBGROUP SUBORDINATE PERCENTAGE: As of any distribution date, 100%
minus the related Subgroup Senior Percentage. The initial Subgroup Subordinate
Percentage for the Group I Senior Certificates will be approximately 6.58% per
annum for Subgroup I-1, 6.58% per annum for Subgroup I-2 and 6.57% per annum for
Subgroup I-3.
SUBORDINATE CERTIFICATES: The Group I Subordinate Certificates and
Group II Subordinate Certificates.
SUBORDINATE CERTIFICATE WRITEDOWN AMOUNT: Group I Subordinate
Certificate Writedown Amount or Group II Subordinate Certificate Writedown
Amount.
SUBORDINATE OPTIMAL PRINCIPAL AMOUNT: Group I Subordinate Optimal
Principal Amount or Group II Subordinate Optimal Principal Amount.
SUBORDINATE PERCENTAGE: Group I Subordinate Percentage or Group I
Subordinate Percentage.
SUBORDINATE PREPAYMENT PERCENTAGE: Group I Subordinate Prepayment
Percentage or Group II Subordinate Prepayment Percentage.
SUBSEQUENT RECOVERIES: As of any Distribution Date, amounts received by
the related Servicer during the related Due Period or surplus amounts held by
the related Servicer to cover estimated expenses (including, but not limited to,
recoveries in respect of the representations and warranties made by the Seller
pursuant to the Mortgage Loan Purchase Agreement) specifically related to a
Liquidated Mortgage Loan or disposition of an REO Property prior to the related
Prepayment Period that resulted in a Realized Loss, after the liquidation or
disposition of such Mortgage Loan.
SUBSTITUTE MORTGAGE LOAN: A Mortgage Loan tendered to the Trustee
pursuant to the Servicing Agreement, the Mortgage Loan Purchase Agreement or
Section 2.04 of this Agreement, as applicable, in each case, (i) which has an
Outstanding Principal Balance not greater nor materially less than the Mortgage
Loan for which it is to be substituted; (ii) which has a Mortgage Interest Rate
and Net Mortgage Rate not less than, and not materially greater than, such
Mortgage Loan; (iii) which has a maturity date not materially earlier or later
than such Mortgage Loan and not later than the latest maturity date of any
Mortgage Loan; (iv) which is of the same property type and occupancy type as
such Mortgage Loan; (v) which has a Loan-to-Value Ratio not greater than the
Loan-to-Value Ratio of such Mortgage Loan; (vi) which is current in payment of
principal and interest as of the date of substitution; and (vii) as to which the
payment terms do not vary in any material respect from the payment terms of the
Mortgage Loan for which it is to be substituted.
SUNTRUST: SunTrust Mortgage, Inc., or its successor in interest.
SUNTRUST SERVICING AGREEMENT: The Purchase, Warranties and Servicing
Agreement, dated as of January 1, 2002, between the Seller and SunTrust,
attached hereto as Exhibit H-10, and as modified by the related Assignment
Agreement.
TAX ADMINISTRATION AND TAX MATTERS PERSON: The Securities Administrator
or any successor thereto or assignee thereof shall serve as tax administrator
hereunder and as agent for the Tax Matters Person. The Holder of each Class of
Residual Certificates shall be the Tax Matters Person for the related REMIC, as
more particularly set forth in Section 9.12 hereof.
TERMINATION PURCHASE PRICE: The price, calculated as set forth in
Section 10.01, to be paid in connection with the repurchase of the Mortgage
Loans pursuant to Section 10.01.
TRUST FUND: The corpus of the trust created by this Agreement,
consisting of the Mortgage Loans and the other assets described in Section
2.01(a).
TRUSTEE: U.S. Bank National Association or its successor in interest,
or any successor trustee appointed as herein provided.
UNCERTIFICATED NOTIONAL AMOUNT: With respect to REMIC I Regular
Interest X, the aggregate Scheduled Principal Balance of the Group I Mortgage
Loans with Net Mortgage Rates greater than 8.00% per annum. With respect to
REMIC II Regular Interest II-X, the aggregate Scheduled Principal Balance of the
Group II Mortgage Loans with Net Mortgage Rates greater than 5.50% per annum.
With respect to REMIC III Regular Interest I-X, an amount equal to the
Uncertificated Notional Amount of REMIC I Regular Interest X.
UNCERTIFICATED PRINCIPAL BALANCE: With respect to any REMIC I Regular
Interest (other than REMIC I Regular Interest X), any REMIC II Regular Interest
(other than REMIC II Regular Interest II-X) or any REMIC III Regular Interest
(other than REMIC III Regular Interest I-X) as of any Distribution Date, the
initial principal amount of such regular interest, reduced by (i) all amounts
distributed on previous Distribution Dates on such regular interest with respect
to principal and (ii) the principal portion of all Realized Losses allocated
prior to such Distribution Date to such regular interest, taking account of the
Group I Loss Allocation Limit or Group II Loss Allocation Limit, as applicable.
UNINSURED CAUSE: Any cause of damage to a Mortgaged Property or related
REO Property such that the complete restoration of such Mortgaged Property or
related REO Property is not fully reimbursable by the hazard insurance policies
required to be maintained pursuant the Servicing Agreement, without regard to
whether or not such policy is maintained.
UNITED STATES PERSON: A citizen or resident of the United States, a
corporation or partnership (including an entity treated as a corporation or
partnership for federal income tax purposes) created or organized in, or under
the laws of, the United States or any state thereof or the District of Columbia
(except, in the case of a partnership, to the extent provided in Treasury
regulations), provided that, for purposes solely of the Residual Certificates,
no partnership or other entity treated as a partnership for United States
federal income tax purposes shall be treated as a United States Person unless
all Persons that own an interest in such partnership either directly or through
any entity that is not a corporation for United States federal income tax
purposes are United States Persons, or an estate whose income is subject to
United States federal income tax regardless of its source, or a trust if a court
within the United States is able to exercise primary supervision over the
administration of the trust and one or more such United States Persons have the
authority to control all substantial decisions of the trust. To the extent
prescribed in regulations by the Secretary of the Treasury, which have not yet
been issued, a trust which was in existence on August 20, 1996 (other than a
trust treated as owned by the grantor under subpart E of part I of subchapter J
of chapter 1 of the Code) and which was treated as a United States Person on
August 20, 1996 may elect to continue to be treated as a United States Person
notwithstanding the previous sentence.
WAMU: Washington Mutual Bank, or its successor in interest.
WAMU SERVICING AGREEMENT: The Servicing Agreement, dated as of April 1,
2005, between the Seller and Washington Mutual, attached hereto as Exhibit H-11,
and as modified by the related Assignment Agreement.
▇▇▇▇▇ FARGO: ▇▇▇▇▇ Fargo Bank, N.A., or its successor in interest.
▇▇▇▇▇ FARGO SERVICING AGREEMENT: The Amended and Restated Master
Seller's Warranties and Servicing Agreement, dated as of November 1, 2005,
between the Seller and ▇▇▇▇▇ Fargo, attached hereto as Exhibit H-12, and as
modified by the related Assignment Agreement.
ARTICLE II
Conveyance of Mortgage Loans;
Original Issuance of Certificates
Section 2.01 CONVEYANCE OF MORTGAGE LOANS TO TRUSTEE.
(a) The Depositor concurrently with the execution and delivery of this
Agreement, sells, transfers and assigns to each Trust without recourse all its
right, title and interest in and to (i) the Mortgage Loans identified in the
Mortgage Loan Schedule, including all interest and principal due with respect to
the Mortgage Loans after the Cut-off Date, but excluding any payments of
principal and interest due on or prior to the Cut-off Date; (ii) such assets as
shall from time to time be credited or are required by the terms of this
Agreement to be credited to the Master Servicer Collection Account, (iii) such
assets relating to the Mortgage Loans as from time to time may be held by the
Servicers in the Protected Accounts, the Master Servicer in the Master Servicer
Collection Account and the Paying Agent in the Distribution Account, (iv) any
REO Property, (v) the Required Insurance Policies and any amounts paid or
payable by the insurer under any Insurance Policy (to the extent the mortgagee
has a claim thereto), (vi) the Mortgage Loan Purchase Agreement to the extent
provided in Subsection 2.03(a), (vii) the rights with respect to the Servicing
Agreements as assigned to the Trustee on behalf of the related
Certificateholders by the Assignment Agreements and (viii) all proceeds of the
foregoing. Although it is the intent of the parties to this Agreement that the
conveyance of the Depositor's right, title and interest in and to the Mortgage
Loans and other assets in the Trust Funds pursuant to this Agreement shall
constitute a purchase and sale and not a loan, in the event that such conveyance
is deemed to be a loan, it is the intent of the parties to this Agreement that
the Depositor shall be deemed to have granted to the Trustee a first priority
perfected security interest in all of the Depositor's right, title and interest
in, to and under the Mortgage Loans and other assets in the Trust Fund, and that
this Agreement shall constitute a security agreement under applicable law.
Moreover, if for any other reason this Agreement is held or deemed to create a
security interest in the Mortgage Loans and the other assets constituting the
Trust Funds, then it is intended as follows: (a) this Agreement shall also be
deemed to be a security agreement within the meaning of Articles 8 and 9 of the
Uniform Commercial Code; (b) the conveyance provided for in this Section shall
be deemed to be a grant by the Depositor to the Trustee of a security interest
in all of the Depositor's right, title and interest in and to the Mortgage Loans
and all proceeds of the conversion, voluntary or involuntary, of the foregoing
into cash, instruments, securities or other property, including without
limitation all amounts from time to time held or invested in the Distribution
Account, whether in the form of cash, instruments, securities or other property;
(c) the possession by the Trustee or its agent of the Mortgage Loans and such
other items of property as constitute instruments, money, negotiable documents
or chattel paper shall be deemed to be "possession by the secured party" for
purposes of perfecting the security interest pursuant to Section 9-305 of the
Uniform Commercial Code; (d) the Securities Administrator shall be deemed to be
the "securities intermediary," as such term is defined in Section
8-102(a)(14)(ii) of the New York Uniform Commercial Code, that in the ordinary
course of its business maintains "securities accounts" for others, as such term
is used in Section 8-501 of the New York Uniform Commercial Code; (e) the
"securities intermediary's jurisdiction" as defined in the New York Uniform
Commercial Code shall be the State of New York; (f) the Securities Administrator
is not a "clearing corporation", as such term is defined in Section 8-102(a)(5)
of the New York Uniform Commercial Code and (g) notifications to persons holding
such property, and acknowledgments, receipts or confirmations from persons
holding such property, shall be deemed to be notifications to or
acknowledgments, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the Trustee for the purpose of perfecting
such security interest under applicable law. The Depositor, the Seller and the
Trustee agree that it is not intended that any Mortgage Loan be conveyed to the
Trust that is either (i) a "High-Cost Home Loan" as defined in the New Jersey
Home Ownership Act effective November 27, 2003, (ii) a "High-Cost Home Loan" as
defined in the New Mexico Home Loan Protection Act effective January 1, 2004
(iii) a "High Cost Home Mortgage Loan" as defined in the Massachusetts Predatory
Home Loan Practices Act effective November 7, 2004 or (iv) a "High-Cost Home
Loan" as defined by the Indiana High Cost Home Loan Law effective Jan 1, 2005.
(b) In connection with the above transfer and assignment, the Depositor
hereby delivers to the Custodian, as agent for the Trustee, with respect to each
Mortgage Loan (other than a Cooperative Loan):
(i) the original Mortgage Note, endorsed without recourse (a)
to the order of the Trustee or (b) in the case of a Mortgage Loan registered on
the MERS system, endorsed in blank, in either case showing an unbroken chain of
endorsements from the originator thereof to the Person endorsing it to the
Trustee, or lost note affidavit together with a copy of the related Mortgage
Note;
(ii) the original Mortgage and, if the related Mortgage Loan
is a MOM Loan, noting the presence of the MIN and language indicating that such
Mortgage Loan is a MOM Loan, which shall have been recorded (or if the original
is not available, a copy), with evidence of such recording indicated thereon (or
if clause (w) in the proviso below applies, shall be in recordable form);
(iii) unless the Mortgage Loan is a MOM Loan, a certified copy
of the assignment (which may be in the form of a blanket assignment if permitted
in the jurisdiction in which the Mortgaged Property is located) to "U.S. Bank
National Association, as Trustee", with evidence of recording with respect to
each Mortgage Loan in the name of the Trustee thereon (or if clause (w) in the
proviso below applies or for Mortgage Loans with respect to which the related
Mortgaged Property is located in a state other than Maryland or an Opinion of
Counsel has been provided as set forth in this Section 2.01(b), shall be in
recordable form);
(iv) all intervening assignments of the Security Instrument,
if applicable and only to the extent available to the Depositor with evidence of
recording thereon;
(v) the original or a copy of the policy or certificate of
primary mortgage guaranty insurance, to the extent available, if any;
(vi) the original policy of title insurance or mortgagee's
certificate of title insurance or commitment or binder for title insurance; and
(vii) originals of all modification agreements, if applicable
and available.
and (II) with respect to each Cooperative Loan so assigned:
(i) The original Mortgage Note, endorsed without recourse to
the order of the Trustee and showing an unbroken chain of endorsements from the
originator thereof to the Person endorsing it to the Trustee, or lost note
affidavit, together with a copy of the related Mortgage Note;
(ii) A counterpart of the Cooperative Lease and the Assignment
of Proprietary Lease to the originator of the Cooperative Loan with intervening
assignments showing an unbroken chain of title from such originator to the
Trustee;
(iii) The related Cooperative Stock Certificate, representing
the related Cooperative Stock pledged with respect to such Cooperative Loan,
together with an undated stock power (or other similar instrument) executed in
blank;
(iv) The original recognition agreement by the Cooperative of
the interests of the mortgagee with respect to the related Cooperative Loan and
any transfer documents related to the recognition agreement;
(v) The Security Agreement;
(vi) Copies of the original UCC-1 financing statement, and any
continuation statements, filed by the originator of such Cooperative Loan as
secured party, each with evidence of recording thereof, evidencing the interest
of the originator under the Security Agreement and the Assignment of Proprietary
Lease;
(vii) Copies of the filed UCC-3 assignments of the security
interest referenced in clause (vi) above showing an unbroken chain of title from
the originator to the Trustee, each with evidence of recording thereof,
evidencing the interest of the originator under the Security Agreement and the
Assignment of Proprietary Lease;
(viii) An executed assignment of the interest of the
originator in the Security Agreement and Assignment of Proprietary Lease,
showing an unbroken chain of title from the originator to the Trustee; and
(ix) The original of each modification, assumption agreement
or preferred loan agreement, if any, relating to such Cooperative Loan;
PROVIDED, HOWEVER, that in lieu of the foregoing, the Depositor may deliver to
the Custodian, as agent of the Trustee, the following documents, under the
circumstances set forth below: (w) in lieu of the original Security Instrument,
assignments to the Trustee or intervening assignments thereof which have been
delivered, are being delivered or will, upon receipt of recording information
relating to the Security Instrument required to be included thereon, be
delivered to recording offices for recording and have not been returned to the
Depositor in time to permit their delivery as specified above, the Depositor may
deliver a true copy thereof with a certification by the Depositor, on the face
of such copy, substantially as follows: "Certified to be a true and correct copy
of the original, which has been transmitted for recording"; (x) in lieu of the
Security Instrument, assignment to the Trustee or intervening assignments
thereof, if the applicable jurisdiction retains the originals of such documents
(as evidenced by a certification from the Depositor to such effect) the
Depositor may deliver photocopies of such documents containing an original
certification by the judicial or other governmental authority of the
jurisdiction where such documents were recorded; (y) in lieu of the Mortgage
Notes relating to the Mortgage Loans identified on Exhibit 5 to the Mortgage
Loan Purchase Agreement, the Depositor may deliver lost note affidavits from the
Seller; and (z) the Depositor shall not be required to deliver intervening
assignments or Mortgage Note endorsements between the related underlying
originator or underlying Seller and the Seller, between the Seller and the
Depositor, and between the Depositor and the Trustee; and provided, further,
however, that in the case of Mortgage Loans which have been prepaid in full
after the Cut-off Date and prior to the Closing Date, the Depositor, in lieu of
delivering the above documents, may deliver to the Trustee or the Custodian, as
its agent, a certification to such effect and shall deposit all amounts paid in
respect of such Mortgage Loans in the Master Servicer Collection Account on the
Closing Date. The Depositor shall deliver such original documents (including any
original documents as to which certified copies had previously been delivered)
to the Trustee or the Custodian, as its agent, promptly after they are received.
The Depositor shall cause the Seller, at its expense, to cause each assignment
of the Security Instrument to the Trustee to be recorded not later than 180 days
after the Closing Date, unless (a) such recordation is not required by the
Rating Agencies or an Opinion of Counsel addressed to the Trustee has been
provided to the Trustee (with a copy to the Custodian) which states that
recordation of such Security Instrument is not required to protect the interests
of the related Certificateholders in the related Mortgage Loans or (b) MERS is
identified on the Mortgage or on a properly recorded assignment of the Mortgage
as the mortgagee of record solely as nominee for the Seller and its successor
and assigns; provided, however, notwithstanding the foregoing, each assignment
shall be submitted for recording by the Seller in the manner described above, at
no expense to the Trust or the Trustee or the Custodian, as its agent, upon the
earliest to occur of: (i) reasonable direction by the Holders of Certificates
evidencing Fractional Undivided Interests aggregating not less than 25% of the
Trust Fund, (ii) the occurrence of an Event of Default, (iii) the occurrence of
a bankruptcy, insolvency or foreclosure relating to the Seller and (iv) the
occurrence of a servicing transfer as described in Section 8.02 hereof.
Notwithstanding the foregoing, if the Seller fails to pay the cost of recording
the assignments, such expense will be paid by the Trustee and the Trustee shall
be reimbursed for such expenses by the Trust in accordance with Section 9.05.
Section 2.02 ACCEPTANCE OF MORTGAGE LOANS AND UNDERLYING CERTIFICATES
BY TRUSTEE.
(a) The Trustee acknowledges the sale, transfer and assignment of the
Trust Funds to it by the Depositor and receipt of, subject to further review and
the exceptions which may be noted pursuant to the procedures described below,
and declares that it holds, the documents (or certified copies thereof)
delivered to the Custodian, as its agent, pursuant to Section 2.01(b), and
declares that it will continue to hold those documents and any amendments,
replacements or supplements thereto and all other assets of the Trust Funds
delivered to it as Trustee in trust for the use and benefit of all present and
future Holders of the related Certificates. On the Closing Date, the Custodian,
with respect to the Mortgage Loans, shall acknowledge with respect to each
Mortgage Loan by delivery to the Depositor and the Trustee of an Initial
Certification receipt of the Mortgage File, but without review of such Mortgage
File, except to the extent necessary to confirm that such Mortgage File contains
the related Mortgage Note or lost note affidavit. No later than 90 days after
the Closing Date (or, with respect to any Substitute Mortgage Loan, within five
Business Days after the receipt by the Trustee or Custodian thereof), the
Trustee agrees, for the benefit of the related Certificateholders, to review or
cause to be reviewed by the Custodian on its behalf (under the Custodial
Agreement), each Mortgage File delivered to it and to execute and deliver, or
cause to be executed and delivered, to the Depositor and the Trustee an Interim
Certification. In conducting such review, the Trustee or Custodian will
ascertain whether all required documents have been executed and received, and
based on the Mortgage Loan Schedule, whether those documents relate, determined
on the basis of the Mortgagor name, original principal balance and loan number,
to the Mortgage Loans it has received, as identified in the Mortgage Loan
Schedule. In performing any such review, the Trustee or the Custodian, as its
agent, may conclusively rely on the purported due execution and genuineness of
any such document and on the purported genuineness of any signature thereon. If
the Trustee or the Custodian, as its agent, finds any document constituting part
of the Mortgage File has not been executed or received, or to be unrelated,
determined on the basis of the Mortgagor name, original principal balance and
loan number, to the Mortgage Loans identified in Exhibit B or to appear
defective on its face (a "Material Defect"), the Trustee or the Custodian, as
its agent, shall promptly notify the Seller. In accordance with the Mortgage
Loan Purchase Agreement, the Seller shall correct or cure any such defect within
ninety (90) days from the date of notice from the Trustee or the Custodian, as
its agent, of the defect and if the Seller fails to correct or cure the defect
within such period, and such defect materially and adversely affects the
interests of the related Certificateholders in the related Mortgage Loan, the
Trustee shall enforce the Seller's obligation under the Mortgage Loan Purchase
Agreement to, within 90 days from the Trustee's or the Custodian's notification,
provide a Substitute Mortgage Loan (if within two years of the Closing Date) or
purchase such Mortgage Loan at the Repurchase Price; provided that, if such
defect would cause the Mortgage Loan to be other than a "qualified mortgage" as
defined in Section 860G(a)(3) of the Code, any such cure or repurchase must
occur within 90 days from the date such breach was discovered; provided,
however, that if such defect relates solely to the inability of the Seller to
deliver the original Security Instrument or intervening assignments thereof, or
a certified copy because the originals of such documents, or a certified copy
have not been returned by the applicable jurisdiction, the Seller shall not be
required to purchase such Mortgage Loan if the Seller delivers such original
documents or certified copy promptly upon receipt, but in no event later than
360 days after the Closing Date. The foregoing repurchase obligation shall not
apply in the event that the Seller cannot deliver such original or copy of any
document submitted for recording to the appropriate recording office in the
applicable jurisdiction because such document has not been returned by such
office; provided that the Seller shall instead deliver a recording receipt of
such recording office or, if such receipt is not available, a certificate
confirming that such documents have been accepted for recording, and delivery to
the Trustee or the Custodian, as its agent, shall be effected by the Seller
within thirty days of its receipt of the original recorded document.
(b) No later than 180 days after the Closing Date, the Trustee or the
Custodian, as its agent, will review, for the benefit of the Certificateholders,
the Mortgage Files delivered to it and will execute and deliver or cause to be
executed and delivered to the Depositor and the Trustee a Final Certification.
In conducting such review, the Trustee or the Custodian, as its agent, will
ascertain whether an original of each document required to be recorded has been
returned from the recording office with evidence of recording thereon or a
certified copy has been obtained from the recording office. If the Trustee or
the Custodian, as its agent, finds a Material Defect, the Trustee or the
Custodian, as its agent, shall promptly notify the Seller (provided, however,
that with respect to those documents described in subsections (b)(I)(iv), (v),
and (vii) of Section 2.01 and subsection (b)(II)(ix) of Section 2.01, the
Trustee's and Custodian's obligations shall extend only to the documents
actually delivered to the Custodian pursuant to such subsections). In accordance
with the Mortgage Loan Purchase Agreement, the Seller shall correct or cure any
such defect within 90 days from the date of notice from the Trustee or the
Custodian, as its agent, of the Material Defect and if the Seller is unable to
cure such defect within such period, and if such defect materially and adversely
affects the interests of the related Certificateholders in the related Mortgage
Loan, the Trustee shall enforce the Seller's obligation under the Mortgage Loan
Purchase Agreement to, within 90 days from the Trustee's or Custodian's
notification, provide a Substitute Mortgage Loan (if within two years of the
Closing Date) or purchase such Mortgage Loan at the Repurchase Price, provided
that, if such defect would cause the Mortgage Loan to be other than a "qualified
mortgage" as defined in Section 860G(a)(3) of the Code, any such cure,
repurchase or substitution must occur within 90 days from the date such breach
was discovered, provided, however, that if such defect relates solely to the
inability of the Seller to deliver the original Security Instrument or
intervening assignments thereof, or a certified copy, because the originals of
such documents or a certified copy, have not been returned by the applicable
jurisdiction, the Seller shall not be required to purchase such Mortgage Loan,
if the Seller delivers such original documents or certified copy promptly upon
receipt, but in no event later than 360 days after the Closing Date. The
foregoing repurchase obligation shall not apply in the event that the Seller
cannot deliver such original or copy of any document submitted for recording to
the appropriate recording office in the applicable jurisdiction because such
document has not been returned by such office; provided that the Seller shall
instead deliver a recording receipt of such recording office or, if such receipt
is not available, a certificate confirming that such documents have been
accepted for recording, and delivery to the Trustee or the Custodian, as its
agent, shall be effected by the Seller within thirty days of its receipt of the
original recorded document.
(c) In the event that a Mortgage Loan is purchased by the Seller in
accordance with Subsections 2.02(a) or (b) above, the Seller shall remit to the
Master Servicer the Repurchase Price for deposit in the Master Servicer
Collection Account and the Seller shall provide to the Securities Administrator
and the Trustee written notification detailing the components of the Repurchase
Price. Upon deposit of the Repurchase Price in the Master Servicer Collection
Account, the Depositor shall notify the Trustee and the Custodian, as agent of
the Trustee (upon receipt of a Request for Release in the form of Exhibit D
attached hereto with respect to such Mortgage Loan), shall release to the Seller
the related Mortgage File and the Trustee shall execute and deliver all
instruments of transfer or assignment, without recourse, representation or
warranty, furnished to it by the Seller, as are necessary to vest in the Seller
title to and rights under the Mortgage Loan. Such purchase shall be deemed to
have occurred on the date on which the Repurchase Price in immediately available
funds is received by the Paying Agent. The Master Servicer shall amend the
Mortgage Loan Schedule, which was previously delivered to it by the Depositor in
a form agreed to between the Depositor, the Master Servicer and the Trustee, to
reflect such repurchase and shall promptly notify the Rating Agencies and the
Securities Administrator of such amendment. The obligation of the Seller to
repurchase or substitute for any Mortgage Loan a Substitute Mortgage Loan as to
which such a defect in a constituent document exists shall be the sole remedy
respecting such defect available to the related Certificateholders or to the
Trustee on their behalf.
Section 2.03 ASSIGNMENT OF INTEREST IN THE MORTGAGE LOAN PURCHASE
AGREEMENT.
(a) The Depositor hereby assigns to the Trustee, on behalf of the
Certificateholders of the Certificates, all of its right, title and interest in
the Mortgage Loan Purchase Agreement, including but not limited to the
Depositor's rights and obligations pursuant to the Servicing Agreements (noting
that the Seller has retained the right in the event of breach of the
representations, warranties and covenants, if any, with respect to the related
Mortgage Loans of the related Servicer under the related Servicing Agreement to
enforce the provisions thereof and to seek all or any available remedies). The
obligations of the Seller to substitute or repurchase, as applicable, a Mortgage
Loan shall be the Trustee's and the related Certificateholders' sole remedy for
any breach thereof. At the request of the Trustee, the Depositor shall take such
actions as may be necessary to enforce the above right, title and interest on
behalf of the Trustee, the related Certificateholders of the Certificates shall
execute such further documents as the Trustee may reasonably require in order to
enable the Trustee to carry out such enforcement.
(b) If the Depositor, the Securities Administrator or the Trustee
discovers a breach of any of the representations and warranties set forth in the
Mortgage Loan Purchase Agreement, which breach materially and adversely affects
the value of the interests of related Certificateholders or the Trustee in the
related Mortgage Loan, the party discovering the breach shall give prompt
written notice of the breach to the other parties. The Seller, within 90 days of
its discovery or receipt of notice that such breach has occurred (whichever
occurs earlier), shall cure the breach in all material respects or, subject to
the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as
applicable, shall purchase the Mortgage Loan or any property acquired with
respect thereto from the Trustee; provided, however, that if there is a breach
of any representation set forth in the Mortgage Loan Purchase Agreement or
Section 2.04 of this Agreement, as applicable, and the Mortgage Loan or the
related property acquired with respect thereto has been sold, then the Seller
shall pay, in lieu of the Repurchase Price, any excess of the Repurchase Price
over the Net Liquidation Proceeds received upon such sale. If the Net
Liquidation Proceeds exceed the Repurchase Price, any excess shall be paid to
the Seller to the extent not required by law to be paid to the borrower. Any
such purchase by the Seller shall be made by providing an amount equal to the
Repurchase Price to the Master Servicer for deposit in the Master Servicer
Collection Account and written notification detailing the components of such
Repurchase Price to the Master Servicer. The Depositor shall notify the Trustee
and submit to the Custodian, as agent for the Trustee, a Request for Release,
and the Custodian shall release, or the Trustee shall cause the Custodian to
release, to the Seller the related Mortgage File and the Trustee shall execute
and deliver all instruments of transfer or assignment furnished to it by the
Seller, without recourse, representation or warranty as are necessary to vest in
the Seller title to and rights under the Mortgage Loan or any property acquired
with respect thereto. Such purchase shall be deemed to have occurred on the date
on which the Repurchase Price in available funds is received by the Trustee. The
Master Servicer shall amend the Mortgage Loan Schedule to reflect such
repurchase and shall promptly notify the Trustee and the Rating Agencies of such
amendment. Enforcement of the obligation of the Seller to purchase (or
substitute a Substitute Mortgage Loan for) any Mortgage Loan or any property
acquired with respect thereto (or pay the Repurchase Price as set forth in the
above proviso) as to which a breach has occurred and is continuing shall
constitute the sole remedy respecting such breach available to the
Certificateholders or the Trustee on their behalf.
Section 2.04 SUBSTITUTION OF MORTGAGE LOANS.
Notwithstanding anything to the contrary in this Agreement, in lieu of
purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or
Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than the date
by which such purchase by the Seller would otherwise be required, tender to the
Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized
officer of the Seller that such Substitute Mortgage Loan conforms to the
requirements set forth in the definition of "Substitute Mortgage Loan" in this
Agreement; provided, however, that substitution pursuant to the Mortgage Loan
Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of
purchase shall not be permitted after the termination of the two-year period
beginning on the Startup Day; provided, further, that if the breach would cause
the Mortgage Loan to be other than a "qualified mortgage" as defined in Section
860G(a)(3) of the Code, any such cure or substitution must occur within 90 days
from the date the breach was discovered. The Custodian, as agent for the
Trustee, shall examine the Mortgage File for any Substitute Mortgage Loan in the
manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its
agent, shall notify the Seller, in writing, within five Business Days after
receipt, whether or not the documents relating to the Substitute Mortgage Loan
satisfy the requirements of the fifth sentence of Subsection 2.02(a). Within two
Business Days after such notification, the Seller shall provide to the Master
Servicer for deposit in the Master Servicer Collection Account the amount, if
any, by which the Outstanding Principal Balance as of the next preceding Due
Date of the Mortgage Loan for which substitution is being made, after giving
effect to the Scheduled Principal due on such date, exceeds the Outstanding
Principal Balance as of such date of the Substitute Mortgage Loan, after giving
effect to Scheduled Principal due on such date, which amount shall be treated
for the purposes of this Agreement as if it were the payment by the Seller of
the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After
such notification to the Seller and, if any such excess exists, upon receipt of
such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall
thereafter be deemed to be a Mortgage Loan hereunder. 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 Trust Fund 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 Seller.
The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the
month of substitution shall be the property of the Seller and the Scheduled
Principal on the Mortgage Loan for which the substitution is made due on such
Due Date shall be the property of the Trust Fund. Upon acceptance of the
Substitute Mortgage Loan (and delivery to the Custodian of a Request for Release
for such Mortgage Loan), the Custodian, as agent for the Trustee, shall release
to the Seller the related Mortgage File related to any Mortgage Loan released
pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this
Agreement, as applicable, and shall execute and deliver all instruments of
transfer or assignment, without recourse, representation or warranty in form as
provided to it as are necessary to vest in the Seller title to and rights under
any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or
Section 2.04 of this Agreement, as applicable. The Seller shall deliver to the
Custodian the documents related to the Substitute Mortgage Loan in accordance
with the provisions of the Mortgage Loan Purchase Agreement or Subsections
2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of
acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for
purposes of the time periods set forth in those Subsections. The representations
and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed
to have been made by the Seller with respect to each Substitute Mortgage Loan as
of the date of acceptance of such Mortgage Loan by the Trustee. The Master
Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and
shall provide a copy of such amended Mortgage Loan Schedule to the Trustee and
the Rating Agencies.
Section 2.05 ISSUANCE OF CERTIFICATES.
(a) The Trustee acknowledges the assignment to it of the Mortgage Loans
and the other assets comprising the Trust Funds and, concurrently therewith, the
Certificate Registrar has signed, and countersigned and delivered to the
Depositor, in exchange therefor, the Certificates in such authorized
denominations representing such Fractional Undivided Interests as the Depositor
has requested. The Trustee agrees that it will hold the Mortgage Loans and such
other assets as may from time to time be delivered to it segregated on the books
of the Trustee in trust for the benefit of the related Certificateholders.
(b) The Depositor, concurrently with the execution and delivery hereof,
does hereby transfer, assign, set over and otherwise convey in trust to the
Trustee without recourse all the right, title and interest of the Depositor in
and to the REMIC I Regular Interests and the other assets of REMIC III for the
benefit of the holders of the REMIC III Interests. The Trustee acknowledges
receipt of the REMIC I Regular Interests (which are uncertificated) and the
other assets of REMIC III and declares that it holds and will hold the same in
trust for the exclusive use and benefit of the holders of the REMIC III
Interests.
(c) The Depositor, concurrently with the execution and delivery hereof,
does hereby transfer, assign, set over and otherwise convey in trust to the
Trustee without recourse all the right, title and interest of the Depositor in
and to the REMIC II Regular Interests, the REMIC III Regular Interests and the
other assets of REMIC IV for the benefit of the Holders of the REMIC IV
Certificates. The Trustee acknowledges receipt of the REMIC II Regular Interests
(which are uncertificated), the REMIC III Regular Interests (which are
uncertificated) and the other assets of REMIC IV and declares that it holds and
will hold the same in trust for the exclusive use and benefit of the Holders of
the REMIC IV Certificates.
Section 2.06 REPRESENTATIONS AND WARRANTIES CONCERNING THE DEPOSITOR.
The Depositor hereby represents and warrants to the Trustee, the Master
Servicer and the Securities Administrator as follows:
(a) the Depositor (i) is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and (ii) is
qualified and in good standing as a foreign corporation to do business in each
jurisdiction where such qualification is necessary, except where the failure so
to qualify would not reasonably be expected to have a material adverse effect on
the Depositor's business as presently conducted or on the Depositor's ability to
enter into this Agreement and to consummate the transactions contemplated
hereby;
(b) the Depositor has full corporate power to own its property, to
carry on its business as presently conducted and to enter into and perform its
obligations under this Agreement;
(c) the execution and delivery by the Depositor of this Agreement have
been duly authorized by all necessary corporate action on the part of the
Depositor; and neither the execution and delivery of this Agreement, nor the
consummation of the transactions herein contemplated, nor compliance with the
provisions hereof, will conflict with or result in a breach of, or constitute a
default under, any of the provisions of any law, governmental rule, regulation,
judgment, decree or order binding on the Depositor or its properties or the
articles of incorporation or by-laws of the Depositor, except those conflicts,
breaches or defaults which would not reasonably be expected to have a material
adverse effect on the Depositor's ability to enter into this Agreement and to
consummate the transactions contemplated hereby;
(d) the execution, delivery and performance by the Depositor of this
Agreement and the consummation of the transactions contemplated hereby do not
require the consent or approval of, the giving of notice to, the registration
with, or the taking of any other action in respect of, any state, federal or
other governmental authority or agency, except those consents, approvals,
notices, registrations or other actions as have already been obtained, given or
made;
(e) this Agreement has been duly executed and delivered by the
Depositor and, assuming due authorization, execution and delivery by the other
parties hereto, constitutes a valid and binding obligation of the Depositor
enforceable against it in accordance with its terms (subject to applicable
bankruptcy and insolvency laws and other similar laws affecting the enforcement
of the rights of creditors generally);
(f) there are no actions, suits or proceedings pending or, to the
knowledge of the Depositor, threatened against the Depositor, before or by any
court, administrative agency, arbitrator or governmental body (i) with respect
to any of the transactions contemplated by this Agreement or (ii) with respect
to any other matter which in the judgment of the Depositor will be determined
adversely to the Depositor and will if determined adversely to the Depositor
materially and adversely affect the Depositor's ability to enter into this
Agreement or perform its obligations under this Agreement; and the Depositor is
not in default with respect to any order of any court, administrative agency,
arbitrator or governmental body so as to materially and adversely affect the
transactions contemplated by this Agreement; and
(g) immediately prior to the transfer and assignment to the Trustee,
each Mortgage Note and each Mortgage were not subject to an assignment or
pledge, and the Depositor had good and marketable title to and was the sole
owner thereof and had full right to transfer and sell such Mortgage Loan to the
Trustee free and clear of any encumbrance, equity, lien, pledge, charge, claim
or security interest.
ARTICLE III
Administration of the Trust Fund and Servicing of Mortgage Loans
Section 3.01 MASTER SERVICER AND SECURITIES ADMINISTRATOR.
The Master Servicer shall supervise, monitor and oversee the obligation
of the Servicers to service and administer their respective Mortgage Loans in
accordance with the terms of the applicable Servicing Agreements and shall have
full power and authority to do any and all things which it may deem necessary or
desirable in connection with such master servicing and administration. In
performing its obligations hereunder, the Master Servicer shall act in a manner
consistent with Accepted Master Servicing Practices. Furthermore, the Master
Servicer shall oversee and consult with each Servicer as necessary from
time-to-time to carry out the Master Servicer's obligations hereunder, shall
receive, review and evaluate all reports, information and other data provided to
the Master Servicer by each Servicer and shall cause each Servicer to perform
and observe the covenants, obligations and conditions to be performed or
observed by such Servicer under its applicable Servicing Agreement. The Master
Servicer shall independently and separately monitor each Servicer's servicing
activities with respect to each related Mortgage Loan, reconcile the results of
such monitoring with such information provided in the previous sentence on a
monthly basis and coordinate corrective adjustments to the Servicers' and Master
Servicer's records, and based on such reconciled and corrected information, the
Master Servicer shall provide such information to the Securities Administrator
as shall be necessary in order for it to prepare the statements specified in
Section 6.05(a), and prepare any other information and statements required to be
forwarded by the Master Servicer hereunder. The Master Servicer shall reconcile
the results of its Mortgage Loan monitoring with the actual remittances of the
Servicers pursuant to the applicable Servicing Agreements.
The Trustee shall furnish the Servicers and the Master Servicer with
any powers of attorney and other documents in form as provided to it necessary
or appropriate to enable the Servicers and the Master Servicer to service and
administer the related Mortgage Loans and REO Property. The Trustee shall be
indemnified by the Master Servicer for any costs, liabilities or expenses
incurred by it in connection with such powers of attorney.
The Trustee or the Custodian shall provide access to the records and
documentation in possession of the Trustee regarding the related Mortgage Loans
and REO Property and the servicing thereof to the related Certificateholders,
the FDIC, and the supervisory agents and examiners of the FDIC, such access
being afforded only upon reasonable prior written request and during normal
business hours at the office of the Trustee; provided, however, that, unless
otherwise required by law, the Trustee shall not be required to provide access
to such records and documentation if the provision thereof would violate the
legal right to privacy of any Mortgagor. The Trustee shall allow representatives
of the above entities to photocopy any of the records and documentation and
shall provide equipment for that purpose at a charge that covers the Trustee's
actual costs.
The Trustee shall execute and deliver to the related Servicer and the
Master Servicer any court pleadings, requests for trustee's sale or other
documents necessary or desirable to (i) the foreclosure or trustee's sale with
respect to a Mortgaged Property; (ii) any legal action brought to obtain
judgment against any Mortgagor on the Mortgage Note or Security Instrument;
(iii) obtain a deficiency judgment against the Mortgagor; or (iv) enforce any
other rights or remedies provided by the Mortgage Note or Security Instrument or
otherwise available at law or equity.
Section 3.02 REMIC-RELATED COVENANTS.
For as long as each REMIC shall exist, the Trustee and the Securities
Administrator shall act in accordance herewith to assure continuing treatment of
such REMIC as a REMIC, and the Trustee and the Securities Administrator shall
comply with any directions of the Depositor, the related Servicer or the Master
Servicer to assure such continuing treatment. In particular, the Trustee shall
not (a) sell or permit the sale of all or any portion of the Mortgage Loans or
of any investment of deposits in an Account unless such sale is as a result of a
repurchase of the Mortgage Loans pursuant to this Agreement or the Trustee has
received a REMIC Opinion addressed to the Trustee prepared at the expense of the
Trust Fund; and (b) other than with respect to a substitution pursuant to the
Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as
applicable, accept any contribution to any REMIC after the Startup Day without
receipt of a REMIC Opinion addressed to the Trustee.
Section 3.03 MONITORING OF SERVICERS.
(a) The Master Servicer shall be responsible for reporting to the
Trustee and the Depositor the compliance by each Servicer with its duties under
the related Servicing Agreement. In the review of each Servicer's activities,
the Master Servicer may rely upon an officer's certificate of the Servicer (or
similar document signed by an officer of the Servicer) with regard to such
Servicer's compliance with the terms of its Servicing Agreement. In the event
that the Master Servicer, in its judgment, determines that a Servicer (other
than ▇▇▇▇▇ Fargo) should be terminated in accordance with its Servicing
Agreement, or that a notice should be sent pursuant to such Servicing Agreement
with respect to the occurrence of an event that, unless cured, would constitute
grounds for such termination, the Master Servicer shall notify the Depositor and
the Trustee thereof and the Master Servicer shall issue such notice or take such
other action as it deems appropriate. In the event that the Master Servicer, in
its judgment, determines that ▇▇▇▇▇ Fargo should be terminated in accordance
with the ▇▇▇▇▇ Fargo Servicing Agreement, or that a notice should be sent
pursuant to the ▇▇▇▇▇ Fargo Servicing Agreement with respect to the occurrence
of an event that, unless cured, would constitute grounds for such termination,
the Master Servicer shall notify the Depositor and the Trustee thereof in
writing. Pursuant to its receipt of such written notification from the Master
Servicer, the Trustee shall issue such notice of termination to ▇▇▇▇▇ Fargo or
take such other action as it deems appropriate.
(b) The Master Servicer, for the benefit of the Trustee and the
Certificateholders, shall enforce the obligations of each Servicer under the
related Servicing Agreement, and shall, in the event that a Servicer other than
▇▇▇▇▇ Fargo fails to perform its obligations in accordance with the related
Servicing Agreement, subject to the preceding paragraph, terminate the rights
and obligations of such Servicer thereunder and act as servicer of the related
Mortgage Loans or to cause the Trustee to enter into a new Servicing Agreement
with a successor Servicer selected by the Master Servicer; provided, however, it
is understood and acknowledged by the parties hereto that there will be a period
of transition (not to exceed 90 days) before the actual servicing functions can
be fully transferred to such successor Servicer. In the event that ▇▇▇▇▇ Fargo
fails to perform its obligations in accordance with the ▇▇▇▇▇ Fargo Servicing
Agreement, subject to the preceding paragraph, the Master Servicer shall notify
the Trustee in writing of such failure. Pursuant to its receipt of such
notification from the Master Servicer, the Trustee shall terminate the rights
and obligations of ▇▇▇▇▇ Fargo under the ▇▇▇▇▇ Fargo Servicing Agreement and
enter in to a new Servicing Agreement with a successor Servicer selected by the
Trustee; provided, however, it is understood and acknowledged by the parties
hereto that there will be a period of transition (not to exceed 90 days) before
the actual servicing functions can be fully transferred to such successor
Servicer. In either event, such enforcement, including, without limitation, the
legal prosecution of claims, termination of Servicing Agreements and the pursuit
of other appropriate remedies, shall be in such form and carried out to such an
extent and at such time as the Master Servicer (or in the case ▇▇▇▇▇ Fargo is
terminated as the Servicer, the Trustee) in its good faith business judgment,
would require were it the owner of the related Mortgage Loans. The Master
Servicer shall pay the costs of such enforcement at its own expense, provided
that the Master Servicer shall not be required to prosecute or defend any legal
action except to the extent that the Master Servicer shall have received
reasonable indemnity for its costs and expenses in pursuing such action. In the
event that ▇▇▇▇▇ Fargo is terminated as the Servicer, the Trustee shall pay the
costs of such enforcement at its own expense, subject to its right to be
reimbursed for such costs from the Master Servicer Collection Account pursuant
to Section 3.03(c); provided that the Trustee shall not be required to prosecute
or defend any legal action except to the extent that the Trustee shall have
received reasonable indemnity for its costs and expenses in pursuing such
action. Nothing herein shall impose any obligation on the part of the Trustee to
assume or succeed to the duties or obligations of ▇▇▇▇▇ Fargo or the Master
Servicer.
(c) In the event that ▇▇▇▇▇ Fargo is terminated as Servicer, to the
extent that the costs and expenses of the Trustee related to any termination of
▇▇▇▇▇ Fargo, or the enforcement or prosecution of related claims, rights or
remedies, or the appointment of a successor Servicer (including, without
limitation, (i) all legal costs and expenses and all due diligence costs and
expenses associated with an evaluation of the potential termination of the ▇▇▇▇▇
Fargo as a result of an event of default by ▇▇▇▇▇ Fargo and (ii) all costs and
expenses associated with the complete transfer of servicing, including all
servicing files and all servicing data and the completion, correction or
manipulation of such servicing data as may be required by the successor Servicer
to correct any errors or insufficiencies in the servicing data or otherwise to
enable the successor Servicer to service the Mortgage Loans in accordance with
the related Servicing Agreement) are not fully and timely reimbursed by ▇▇▇▇▇
Fargo after such termination, the Trustee shall be entitled to reimbursement of
such costs and expenses from the Master Servicer Collection Account (which the
Master Servicer hereby agrees to pay to the Trustee from the Master Servicer
Collection Account upon demand) or, to the extent not paid from such account,
the Trustee shall be entitled to reimburse itself for such costs and expenses
from the Distribution Account. In all other cases, to the extent that the costs
and expenses of the Master Servicer related to any termination of a Servicer
(other than ▇▇▇▇▇ Fargo), appointment of a successor Servicer or the transfer
and assumption of servicing by the Master Servicer with respect to any Servicing
Agreement (including, without limitation, (i) all legal costs and expenses and
all due diligence costs and expenses associated with an evaluation of the
potential termination of the Servicer as a result of an event of default by such
Servicer and (ii) all costs and expenses associated with the complete transfer
of servicing, including all servicing files and all servicing data and the
completion, correction or manipulation of such servicing data as may be required
by the successor servicer to correct any errors or insufficiencies in the
servicing data or otherwise to enable the successor servicer to service the
Mortgage Loans in accordance with the related Servicing Agreement) are not fully
and timely reimbursed by the terminated Servicer, the Master Servicer shall be
entitled to reimbursement of such costs and expenses from the Master Servicer
Collection Account.
(d) The Master Servicer shall require each Servicer to comply with the
remittance requirements and other obligations set forth in the related Servicing
Agreement.
(e) If the Master Servicer acts as Servicer, it will not assume
liability for the representations and warranties of the Servicer (other than
▇▇▇▇▇ Fargo), if any, that it replaces.
Section 3.04 FIDELITY BOND.
The Master Servicer, at its expense, shall maintain in effect a blanket
fidelity bond and an errors and omissions insurance policy, affording coverage
with respect to all directors, officers, employees and other Persons acting on
such Master Servicer's behalf, and covering errors and omissions in the
performance of the Master Servicer's obligations hereunder. The errors and
omissions insurance policy and the fidelity bond shall be in such form and
amount generally acceptable for entities serving as master servicers or
trustees.
Section 3.05 POWER TO ACT; PROCEDURES.
The Master Servicer shall master service the Mortgage Loans and shall
have full power and authority, subject to the REMIC Provisions and the
provisions of Article X hereof, to do any and all things that it may deem
necessary or desirable in connection with the master servicing and
administration of the Mortgage Loans, including but not limited to the power and
authority (i) to execute and deliver, on behalf of the Holders of the
Certificates and the Trustee, customary consents or waivers and other
instruments and documents, (ii) to consent to transfers of any Mortgaged
Property and assumptions of the Mortgage Notes and related Mortgages, (iii) to
collect any Insurance Proceeds, Liquidation Proceeds and Subsequent Recoveries,
and (iv) to effectuate foreclosure or other conversion of the ownership of the
Mortgaged Property securing any Mortgage Loan, in each case, in accordance with
the provisions of this Agreement and the related Servicing Agreement, as
applicable; provided, however, that the Master Servicer shall not (and,
consistent with its responsibilities under Section 3.03, shall not permit any
Servicer to) knowingly or intentionally take any action, or fail to take (or
fail to cause to be taken) any action reasonably within its control and the
scope of duties more specifically set forth herein, that, under the REMIC
Provisions, if taken or not taken, as the case may be, would cause any related
REMIC to fail to qualify as a REMIC or result in the imposition of a tax upon
the Trust Funds (including but not limited to the tax on prohibited transactions
as defined in Section 860F(a)(2) of the Code and the tax on contributions to a
REMIC set forth in Section 860G(d) of the Code) unless the Master Servicer has
received an Opinion of Counsel (but not at the expense of the Master Servicer)
to the effect that the contemplated action would not cause any REMIC to fail to
qualify as a REMIC or result in the imposition of a tax upon any REMIC. The
Trustee shall furnish the Master Servicer, upon written request from a Servicing
Officer, with any powers of attorney empowering the Master Servicer or any
Servicer to execute and deliver instruments of satisfaction or cancellation, or
of partial or full release or discharge, and to foreclose upon or otherwise
liquidate Mortgaged Property, and to appeal, prosecute or defend in any court
action relating to the Mortgage Loans or the Mortgaged Property, in accordance
with the related Servicing Agreement and this Agreement, and the Trustee shall
execute and deliver such other documents, as the Master Servicer may request, to
enable the Master Servicer to master service and administer the Mortgage Loans
and carry out its duties hereunder, in each case in accordance with Accepted
Master Servicing Practices (and the Trustee shall have no liability for misuse
of any such powers of attorney by the Master Servicer or any Servicer). If the
Master Servicer or the Trustee has been advised that it is likely that the laws
of the state in which action is to be taken prohibit such action if taken in the
name of the Trustee or that the Trustee would be adversely affected under the
"doing business" or tax laws of such state if such action is taken in its name,
the Master Servicer shall join with the Trustee in the appointment of a
co-trustee pursuant to Section 9.11 hereof. In the performance of its duties
hereunder, the Master Servicer shall be an independent contractor and shall not,
except in those instances where it is taking action in the name of the Trustee,
be deemed to be the agent of the Trustee.
Section 3.06 DUE-ON-SALE CLAUSES; ASSUMPTION AGREEMENTS.
To the extent provided in the applicable Servicing Agreement, to the
extent Mortgage Loans contain enforceable due-on-sale clauses, the Master
Servicer shall cause the Servicers to enforce such clauses in accordance with
the applicable Servicing Agreement. If applicable law prohibits the enforcement
of a due-on-sale clause or such clause is otherwise not enforced in accordance
with the applicable Servicing Agreement, and, as a consequence, a Mortgage Loan
is assumed, the original Mortgagor may be released from liability in accordance
with the Servicing Agreement.
Section 3.07 RELEASE OF MORTGAGE FILES.
(a) Upon becoming aware of the payment in full of any Mortgage Loan, or
the receipt by any Servicer of a notification that payment in full has been
escrowed in a manner customary for such purposes for payment to related
Certificateholders on the next Distribution Date, the Servicer will, if required
under the applicable Servicing Agreement (or if the applicable Servicer does
not, the Master Servicer may), promptly furnish to the Custodian, on behalf of
the Trustee, two copies of a certification substantially in the form of Exhibit
D hereto signed by a Servicing Officer or in a mutually agreeable electronic
format which will, in lieu of a signature on its face, originate from a
Servicing Officer (which certification shall include a statement to the effect
that all amounts received in connection with such payment that are required to
be deposited in the Protected Account maintained by the applicable Servicer
pursuant to Section 4.01 or by the applicable Servicer pursuant to the
applicable Servicing Agreement have been or will be so deposited) and shall
request that the Custodian, on behalf of the Trustee, deliver to the Servicer
the related Mortgage File. Upon receipt of such certification and request, the
Custodian, on behalf of the Trustee, shall promptly release the related Mortgage
File to the Servicer and the Trustee and Custodian shall have no further
responsibility with regard to such Mortgage File. Upon any such payment in full,
each Servicer is authorized, to give, as agent for the Trustee, as the mortgagee
under the Mortgage that secured the Mortgage Loan, an instrument of satisfaction
(or assignment of mortgage without recourse) regarding the Mortgaged Property
subject to the Mortgage, which instrument of satisfaction or assignment, as the
case may be, shall be delivered to the Person or Persons entitled thereto
against receipt therefor of such payment, it being understood and agreed that no
expenses incurred in connection with such instrument of satisfaction or
assignment, as the case may be, shall be chargeable to the Protected Account.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Mortgage Loan and in accordance with the applicable Servicing
Agreement, the Trustee shall execute such documents as shall be prepared and
furnished to the Trustee by a Servicer or the Master Servicer (in form
reasonably acceptable to the Trustee) and as are necessary to the prosecution of
any such proceedings. The Custodian, on behalf of the Trustee, shall, upon the
request of a Servicer or the Master Servicer, and delivery to the Custodian, on
behalf of the Trustee, of two copies of a request for release signed by a
Servicing Officer substantially in the form of Exhibit D (or in a mutually
agreeable electronic format which will, in lieu of a signature on its face,
originate from a Servicing Officer), release the related Mortgage File held in
its possession or control to the Servicer or the Master Servicer. Such trust
receipt shall obligate the Servicer or the Master Servicer to return the
Mortgage File to the Custodian on behalf of the Trustee, when the need therefor
by the Servicer or the Master Servicer no longer exists unless the Mortgage Loan
shall be liquidated, in which case, upon receipt of a certificate of a Servicing
Officer similar to that hereinabove specified, the Mortgage File shall be
released by the Custodian, on behalf of the Trustee, to the Servicer or the
Master Servicer.
Section 3.08 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF MASTER
SERVICER TO BE HELD FOR TRUSTEE.
(a) The Master Servicer shall transmit and each Servicer (to the extent
required by the related Servicing Agreement) shall transmit to the Trustee or
Custodian such documents and instruments coming into the possession of the
Master Servicer or such Servicer from time to time as are required by the terms
hereof, or in the case of the Servicers, the applicable Servicing Agreement, to
be delivered to the Trustee or Custodian. Any funds received by the Master
Servicer or by a Servicer in respect of any Mortgage Loan or which otherwise are
collected by the Master Servicer or by a Servicer as Liquidation Proceeds,
Insurance Proceeds or Subsequent Recoveries in respect of any Mortgage Loan
shall be held for the benefit of the Trustee and the related Certificateholders
subject to the Master Servicer's right to retain or withdraw from the Master
Servicer Collection Account the Master Servicing Compensation and other amounts
provided in this Agreement, and to the right of each Servicer to retain its
Servicing Fee and other amounts as provided in the applicable Servicing
Agreement. The Master Servicer shall, and (to the extent provided in the
applicable Servicing Agreement) shall cause each Servicer to, provide access to
information and documentation regarding the Mortgage Loans to the Trustee, its
agents and accountants at any time upon reasonable request and during normal
business hours, to related Certificateholders that are savings and loan
associations, banks or insurance companies, the Office of Thrift Supervision,
the FDIC and the supervisory agents and examiners of such Office and Corporation
or examiners of any other federal or state banking or insurance regulatory
authority if so required by applicable regulations of the Office of Thrift
Supervision or other regulatory authority, such access to be afforded without
charge but only upon reasonable request in writing and during normal business
hours at the offices of the Master Servicer designated by it. In fulfilling such
a request the Master Servicer shall not be responsible for determining the
sufficiency of such information.
(b) All Mortgage Files and funds collected or held by, or under the
control of, the Master Servicer, in respect of any Mortgage Loans, whether from
the collection of principal and interest payments or from Liquidation Proceeds,
Insurance Proceeds or Subsequent Recoveries, shall be held by the Master
Servicer for and on behalf of the Trustee and the related Certificateholders and
shall be and remain the sole and exclusive property of the Trustee; provided,
however, that the Master Servicer and each Servicer shall be entitled to setoff
against, and deduct from, any such funds any amounts that are properly due and
payable to the Master Servicer or such Servicer under this Agreement or the
applicable Servicing Agreement.
Section 3.09 STANDARD HAZARD INSURANCE AND FLOOD INSURANCE POLICIES.
(a) For each Mortgage Loan, the Master Servicer shall enforce any
obligation of the Servicers under the related Servicing Agreements to maintain
or cause to be maintained standard fire and casualty insurance and, where
applicable, flood insurance, all in accordance with the provisions of the
related Servicing Agreements. It is understood and agreed that such insurance
shall be with insurers meeting the eligibility requirements set forth in the
applicable Servicing Agreement and that no earthquake or other additional
insurance is to be required of any Mortgagor or to be maintained on property
acquired in respect of a defaulted loan, other than pursuant to such applicable
laws and regulations as shall at any time be in force and as shall require such
additional insurance.
(b) Pursuant to Section 4.01 and 4.02, any amounts collected by the
Servicers or the Master Servicer, or by any Servicer, under any insurance
policies (other than amounts to be applied to the restoration or repair of the
property subject to the related Mortgage or released to the Mortgagor in
accordance with the applicable Servicing Agreement) shall be deposited into the
Master Servicer Collection Account, subject to withdrawal pursuant to Section
4.02 and 4.03. Any cost incurred by the Master Servicer or any Servicer in
maintaining any such insurance if the Mortgagor defaults in its obligation to do
so shall be added to the amount owing under the Mortgage Loan where the terms of
the Mortgage Loan so permit; provided, however, that the addition of any such
cost shall not be taken into account for purposes of calculating the
distributions to be made to Certificateholders and shall be recoverable by the
Master Servicer or such Servicer pursuant to Section 4.02 and 4.03.
Section 3.10 PRESENTMENT OF CLAIMS AND COLLECTION OF PROCEEDS.
The Master Servicer shall (to the extent provided in the applicable
Servicing Agreement) cause the related Servicer to prepare and present on behalf
of the Trustee and the Certificateholders all claims under the Insurance
Policies and take such actions (including the negotiation, settlement,
compromise or enforcement of the insured's claim) as shall be necessary to
realize recovery under such policies. Any proceeds disbursed to the Master
Servicer (or disbursed to a Servicer and remitted to the Master Servicer) in
respect of such policies, bonds or contracts shall be promptly deposited in the
Master Servicer Collection Account upon receipt, except that any amounts
realized that are to be applied to the repair or restoration of the related
Mortgaged Property as a condition precedent to the presentation of claims on the
related Mortgage Loan to the insurer under any applicable Insurance Policy need
not be so deposited (or remitted).
Section 3.11 MAINTENANCE OF THE PRIMARY MORTGAGE INSURANCE POLICIES.
(a) The Master Servicer shall not take, or permit any Servicer (to the
extent such action is prohibited under the applicable Servicing Agreement) to
take, any action that would result in noncoverage under any applicable Primary
Mortgage Insurance Policy of any loss which, but for the actions of the Master
Servicer or such Servicer, would have been covered thereunder. The Master
Servicer shall use its best reasonable efforts to cause each Servicer (to the
extent required under the related Servicing Agreement) to keep in force and
effect (to the extent that the Mortgage Loan requires the Mortgagor to maintain
such insurance), primary mortgage insurance applicable to each Mortgage Loan in
accordance with the provisions of this Agreement and the related Servicing
Agreement, as applicable. The Master Servicer shall not, and shall not permit
any Servicer (to the extent required under the related Servicing Agreement) to,
cancel or refuse to renew any such Primary Mortgage Insurance Policy that is in
effect at the date of the initial issuance of the Mortgage Note and is required
to be kept in force hereunder except in accordance with the provisions of this
Agreement and the related Servicing Agreement, as applicable.
(b) The Master Servicer agrees to present, or to cause each Servicer
(to the extent required under the related Servicing Agreement) to present, on
behalf of the Trustee and the Certificateholders, claims to the insurer under
any Primary Mortgage Insurance Policies and, in this regard, to take such
reasonable action as shall be necessary to permit recovery under any Primary
Mortgage Insurance Policies respecting defaulted Mortgage Loans. Pursuant to
Section 4.01 and 4.02, any amounts collected by the Master Servicer or any
Servicer under any Primary Mortgage Insurance Policies shall be deposited in the
Master Servicer Collection Account, subject to withdrawal pursuant to Sections
4.02 and 4.03.
Section 3.12 TRUSTEE TO RETAIN POSSESSION OF CERTAIN INSURANCE POLICIES
AND DOCUMENTS.
The Trustee (or the Custodian, as directed by the Trustee), shall
retain possession and custody of the originals (to the extent available) of any
Primary Mortgage Insurance Policies, or certificate of insurance if applicable,
and any certificates of renewal as to the foregoing as may be issued from time
to time as contemplated by this Agreement. Until all amounts distributable in
respect of the Certificates have been distributed in full and the Master
Servicer otherwise has fulfilled its obligations under this Agreement, the
Trustee (or its Custodian, if any, as directed by the Trustee) shall also retain
possession and custody of each Mortgage File in accordance with and subject to
the terms and conditions of this Agreement. The Master Servicer shall promptly
deliver or cause to be delivered to the Trustee (or the Custodian, as directed
by the Trustee), upon the execution or receipt thereof the originals of any
Primary Mortgage Insurance Policies, any certificates of renewal, and such other
documents or instruments that constitute portions of the Mortgage File that come
into the possession of the Master Servicer from time to time.
Section 3.13 REALIZATION UPON DEFAULTED MORTGAGE LOANS.
The Master Servicer shall cause each Servicer (to the extent required
under the related Servicing Agreement) to foreclose upon, repossess or otherwise
comparably convert the ownership of Mortgaged 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, all
in accordance with the applicable Servicing Agreement.
Section 3.14 COMPENSATION FOR THE MASTER SERVICER.
The Master Servicer will be entitled to (i) the Master Servicing Fee;
provided, that the aggregate Master Servicing Fee with respect to any
Distribution Date shall be reduced by an amount equal to the Compensating
Interest payable by the Master Servicer for such Distribution Date pursuant to
Section 6.07 hereof, plus (ii) all income and gain realized from any investment
of funds in the Distribution Account and the Master Servicer Collection Account,
pursuant to Article IV, for the performance of its activities hereunder.
Servicing compensation in the form of assumption fees, if any, late payment
charges, as collected, if any, or otherwise (but not including any prepayment
premium or penalty) shall be retained by the applicable Servicer and shall not
be deposited in the Protected Account. The Master Servicer shall be required to
pay all expenses incurred by it in connection with its activities hereunder and
shall not be entitled to reimbursement therefor except as provided in this
Agreement.
Section 3.15 REO PROPERTY.
(a) In the event the Trust Fund acquires ownership of any REO Property
in respect of any related Mortgage Loan, the deed or certificate of sale shall
be issued to the Trustee, or to its nominee, on behalf of the related
Certificateholders. The Master Servicer shall, to the extent provided in the
applicable Servicing Agreement, cause the applicable Servicer to sell any REO
Property as expeditiously as possible and in accordance with the provisions of
this Agreement and the related Servicing Agreement, as applicable. Pursuant to
its efforts to sell such REO Property, the Master Servicer shall cause the
applicable Servicer to protect and conserve, such REO Property in the manner and
to the extent required by the applicable Servicing Agreement, in accordance with
the REMIC Provisions and in a manner that does not result in a tax on "net
income from foreclosure property" or cause such REO Property to fail to qualify
as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code.
(b) The Master Servicer shall, to the extent required by the related
Servicing Agreement, cause the applicable Servicer to deposit all funds
collected and received in connection with the operation of any REO Property in
the Protected Account.
(c) The Master Servicer and the applicable Servicer, upon the final
disposition of any REO Property, shall be entitled to reimbursement for any
related unreimbursed Monthly Advances and other unreimbursed advances as well as
any unpaid Servicing Fees from Liquidation Proceeds received in connection with
the final disposition of such REO Property; provided, that any such unreimbursed
Monthly Advances as well as any unpaid Servicing Fees may be reimbursed or paid,
as the case may be, prior to final disposition, out of any net rental income or
other net amounts derived from such REO Property.
(d) To the extent provided in the related Servicing Agreement, the
Liquidation Proceeds from the final disposition of the REO Property, net of any
payment to the Master Servicer and the applicable Servicer as provided above
shall be deposited in the Protected Account on or prior to the Determination
Date in the month following receipt thereof and be remitted by wire transfer in
immediately available funds to the Master Servicer for deposit into the related
Master Servicer Collection Account on the next succeeding Servicer Remittance
Date.
Section 3.16 ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE.
(a) The Master Servicer shall deliver to the Trustee and the Rating
Agencies on or before March 1 of each year, commencing on March 1, 2006, an
Officer's Certificate, certifying that with respect to the period ending
December 31 of the prior year: (i) such Servicing Officer has reviewed the
activities of such Master Servicer during the preceding calendar year or portion
thereof and its performance under this Agreement, (ii) to the best of such
Servicing Officer's knowledge, based on such review, such Master Servicer has
performed and fulfilled its duties, responsibilities and obligations under this
Agreement in all material respects throughout such year, or, if there has been a
default in the fulfillment of any such duties, responsibilities or obligations,
specifying each such default known to such Servicing Officer and the nature and
status thereof, (iii) nothing has come to the attention of such Servicing
Officer to lead such Servicing Officer to believe that any Servicer has failed
to perform any of its duties, responsibilities and obligations under its
Servicing Agreement in all material respects throughout such year, or, if there
has been a material default in the performance or fulfillment of any such
duties, responsibilities or obligations, specifying each such default known to
such Servicing Officer and the nature and status thereof.
(b) Copies of such statements shall be provided to any
Certificateholder upon request, by the Master Servicer or by the Trustee at the
Master Servicer's expense if the Master Servicer failed to provide such copies
(unless (i) the Master Servicer shall have failed to provide the Trustee with
such statement or (ii) the Trustee shall be unaware of the Master Servicer's
failure to provide such statement).
Section 3.17 ANNUAL INDEPENDENT ACCOUNTANT'S SERVICING REPORT.
If the Master Servicer has, during the course of any calendar year,
directly serviced any of the Mortgage Loans, then the Master Servicer at its
expense shall cause a nationally recognized firm of independent certified public
accountants to furnish a statement to the Trustee, the Rating Agencies and the
Depositor on or before March 1 of each year to the effect that, with respect to
the most recently ended calendar year, such firm has examined certain records
and documents relating to the Master Servicer's performance of its servicing
obligations under this Agreement and pooling and servicing and trust agreements
in material respects similar to this Agreement and to each other and that, on
the basis of such examination conducted substantially in compliance with the
audit program for mortgages serviced for ▇▇▇▇▇▇▇ Mac or the Uniform Single
Attestation Program for Mortgage Bankers, such firm is of the opinion that the
Master Servicer's activities have been conducted in compliance with this
Agreement, or that such examination has disclosed no material items of
noncompliance except for (i) such exceptions as such firm believes to be
immaterial, (ii) such other exceptions as are set forth in such statement and
(iii) such exceptions that the Uniform Single Attestation Program for Mortgage
Bankers or the Audit Program for Mortgages Serviced by ▇▇▇▇▇▇▇ Mac requires it
to report. Copies of such statements shall be provided to any Certificateholder
upon request by the Master Servicer, or by the Trustee at the expense of the
Master Servicer if the Master Servicer shall fail to provide such copies but
only if the Master Servicer has provided the Trustee with such statement. If
such report discloses exceptions that are material, the Master Servicer shall
advise the Trustee whether such exceptions have been or are susceptible of cure,
and will take prompt action to do so.
Section 3.18 REPORTS FILED WITH SECURITIES AND EXCHANGE COMMISSION.
Within 15 days after each Distribution Date, the Securities
Administrator shall, in accordance with industry standards, file with the
Commission via the Electronic Data Gathering and Retrieval System ("▇▇▇▇▇"), a
Form 8-K (or other comparable form containing the comparable information or
other information mutually agreed upon) with a copy of Certificate Distribution
Report for such Distribution Date as an exhibit thereto. Prior to January 30 in
any year, the Securities Administrator shall, in accordance with industry
standards and only if instructed by the Depositor, file a Form 15 Suspension
Notice with respect to the Trust Fund, if applicable. Prior to (i) March 15,
2006 and (ii) unless and until a Form 15 Suspension Notice shall have been
filed, prior to March 15 of each year thereafter, the Master Servicer shall
provide the Securities Administrator with a Master Servicer Certification,
together with a copy of the annual independent accountant's servicing report of
each Servicer and annual statement of compliance of each Servicer, in each case,
required to be delivered pursuant to the related Servicing Agreement, and, if
applicable, the annual independent accountant's servicing report and annual
statement of compliance to be delivered by the Master Servicer pursuant to
Sections 3.16 and 3.17. Prior to (i) March 31, 2006, or such earlier filing date
as may be required by the Commission, and (ii) unless and until a Form 15
Suspension Notice shall have been filed, March 31 of each year thereafter, or
such earlier filing date as may be required by the Commission, the Securities
Administrator shall file a Form 10-K, in substance conforming to industry
standards, with respect to the Trust Fund. Such Form 10-K shall include the
Master Servicer Certification and other documentation provided by the Master
Servicer pursuant to the second preceding sentence. The Depositor hereby grants
to the Securities Administrator a limited power of attorney to execute and file
each such document on behalf of the Depositor. Such power of attorney shall
continue until either the earlier of (i) receipt by the Securities Administrator
from the Depositor of written termination of such power of attorney and (ii) the
termination of the Trust Fund. The Depositor agrees to promptly furnish to the
Securities Administrator, from time to time upon request, such further
information, reports and financial statements within its control related to this
Agreement and the Mortgage Loans as the Securities Administrator reasonably
deems appropriate to prepare and file all necessary reports with the Commission.
The Securities Administrator shall have no responsibility to file any items
other than those specified in this Section 3.18; provided, however, the
Securities Administrator will cooperate with the Depositor in connection with
any additional filings with respect to the Trust Fund as the Depositor deems
necessary under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"). Fees and expenses incurred by the Securities Administrator in connection
with this Section 3.18 shall not be reimbursable from the Trust Fund.
Section 3.19 [Reserved].
Section 3.20 UCC.
The Depositor shall inform the Trustee in writing of any Uniform
Commercial Code financing statements that were filed on the Closing Date in
connection with the Trust with stamped recorded copies of such financing
statements to be delivered to the Trustee promptly upon receipt by the
Depositor. If directed by the Depositor in writing, the Trustee will file any
continuation statements solely at the expense of the Depositor. The Depositor
shall file any financing statements or amendments thereto required by any change
in the Uniform Commercial Code.
Section 3.21 OPTIONAL PURCHASE OF DEFAULTED MORTGAGE LOANS.
(a) With respect to any Mortgage Loan which as of the first day of a
Fiscal Quarter is delinquent in payment by 90 days or more or is an REO
Property, the Company shall have the right to purchase such Mortgage Loan from
the Trust at a price equal to the Repurchase Price; provided however (i) that
such Mortgage Loan is still 90 days or more delinquent or is an REO Property as
of the date of such purchase and (ii) this purchase option, if not theretofore
exercised, shall terminate on the date prior to the last day of the related
Fiscal Quarter. This purchase option, if not exercised, shall not be thereafter
reinstated unless the delinquency is cured and the Mortgage Loan thereafter
again becomes 90 days or more delinquent or becomes an REO Property, in which
case the option shall again become exercisable as of the first day of the
related Fiscal Quarter.
(b) If at any time the Company remits to the Master Servicer a payment
for deposit in the Master Servicer Collection Account covering the amount of the
Repurchase Price for such a Mortgage Loan, and the Company provides to the
Trustee a certification signed by a Servicing Officer stating that the amount of
such payment has been deposited in the Master Servicer Collection Account, then
the Trustee shall execute the assignment of such Mortgage Loan to the Company at
the request of the Company without recourse, representation or warranty and the
Company shall succeed to all of the Trustee's right, title and interest in and
to such Mortgage Loan, and all security and documents relative thereto. Such
assignment shall be an assignment outright and not for security. The Company
will thereupon own such Mortgage, and all such security and documents, free of
any further obligation to the Trustee or the Certificateholders with respect
thereto.
ARTICLE IV
Accounts
Section 4.01 PROTECTED ACCOUNT.
(a) The Master Servicer shall enforce the obligation of each Servicer
to establish and maintain a Protected Account in accordance with the applicable
Servicing Agreement, with records to be kept with respect thereto on a Mortgage
Loan by Mortgage Loan basis, into which accounts shall be deposited within 48
hours (or as of such other time specified in the related Servicing Agreement) of
receipt, all collections of principal and interest on any Mortgage Loan and any
REO Property received by a Servicer, including Principal Prepayments, Insurance
Proceeds, Liquidation Proceeds, Subsequent Recoveries and advances made from the
Servicer's own funds (less servicing compensation as permitted by the applicable
Servicing Agreement in the case of any Servicer) and all other amounts to be
deposited in the Protected Account. The Servicer is hereby authorized to make
withdrawals from and deposits to the related Protected Account for purposes
required or permitted by this Agreement. To the extent provided in the related
Servicing Agreement, the Protected Account shall be held by a Designated
Depository Institution and segregated on the books of such institution in the
name of the Trustee for the benefit of Holders of the Certificates.
(b) To the extent provided in the related Servicing Agreement, amounts
on deposit in a Protected Account may be invested in Permitted Investments in
the name of the Trustee for the benefit of Holders of the Certificates and,
except as provided in the preceding paragraph, not commingled with any other
funds. Such Permitted Investments shall mature, or shall be subject to
redemption or withdrawal, no later than the date on which such funds are
required to be withdrawn for deposit in the Master Servicer Collection Account,
and shall be held until required for such deposit. The income earned from
Permitted Investments made pursuant to this Section 4.01 shall be paid to the
related Servicer under the applicable Servicing Agreement, and the risk of loss
of moneys required to be distributed to the Holders of the Certificates
resulting from such investments shall be borne by and be the risk of the related
Servicer. The related Servicer (to the extent provided in the Servicing
Agreement) shall deposit the amount of any such loss in the Protected Account
within two Business Days of receipt of notification of such loss but not later
than the second Business Day prior to the Distribution Date on which the moneys
so invested are required to be distributed to the Holders of the Certificates.
(c) To the extent provided in the related Servicing Agreement and
subject to this Article IV, on or before each Servicer Remittance Date, the
related Servicer shall withdraw or shall cause to be withdrawn from its
Protected Accounts and shall immediately deposit or cause to be deposited in the
Master Servicer Collection Account amounts representing the following
collections and payments (other than with respect to principal of or interest on
the Mortgage Loans due on or before the Cut-off Date):
(i) Scheduled Payments on the Mortgage Loans received or any
related portion thereof advanced by such Servicer pursuant to its Servicing
Agreement which were due on or before the related Due Date, net of the amount
thereof comprising its Servicing Fee or any fees with respect to any lender-paid
primary mortgage insurance policy;
(ii) Full Principal Prepayments and any Liquidation Proceeds
or Subsequent Recoveries received by such Servicer with respect to the Mortgage
Loans in the related Prepayment Period, with interest to the date of prepayment
or liquidation, net of the amount thereof comprising its Servicing Fee;
(iii) Partial Principal Prepayments received by such Servicer
for the Mortgage Loans in the related Prepayment Period; and
(iv) Any amount to be used as a Monthly Advance.
(d) Withdrawals may be made from an Account only to make remittances as
provided in Section 4.01(c), 4.02 and 4.03; to reimburse the Master Servicer or
a Servicer for Monthly Advances which have been recovered by subsequent
collections from the related Mortgagor; to remove amounts deposited in error; to
remove fees, charges or other such amounts deposited on a temporary basis; or to
clear and terminate the account at the termination of the Trust Fund in
accordance with Section 10.01. As provided in Sections 4.01(a) and 4.02(b)
certain amounts otherwise due to the Servicers may be retained by them and need
not be deposited in the Master Servicer Collection Account.
Section 4.02 MASTER SERVICER COLLECTION ACCOUNT.
(a) The Master Servicer shall establish and maintain in the name of the
Trustee, for the benefit of the Holders of the Certificates, the Master Servicer
Collection Account as a segregated trust account or accounts. The Master
Servicer Collection Account shall be an Eligible Account. The Master Servicer
will deposit in the Master Servicer Collection Account as identified by the
Master Servicer and as received by the Master Servicer, the following amounts:
(i) Any amounts withdrawn from a Protected Account;
(ii) Any Monthly Advance and any Compensating Interest
Payments;
(iii) Any Insurance Proceeds or Net Liquidation Proceeds or
Subsequent Recoveries received by or on behalf of the Master Servicer or which
were not deposited in a Protected Account;
(iv) The Repurchase Price with respect to any Mortgage Loans
purchased by the Seller pursuant to the Mortgage Loan Purchase Agreement or
Sections 2.02 or 2.03 hereof, any amounts which are to be treated pursuant to
Section 2.04 of this Agreement as the payment of a Repurchase Price in
connection with the tender of a Substitute Mortgage Loan by the Seller, the
Repurchase Price with respect to any Mortgage Loans purchased by the Company
pursuant to Section 3.21, and all proceeds of any Mortgage Loans or property
acquired with respect thereto repurchased by the Depositor or its designee
pursuant to Section 10.01;
(v) Any amounts required to be deposited with respect to
losses on investments of deposits in an Account; and
(vi) Any other amounts received by or on behalf of the Master
Servicer and required to be deposited in the Master Servicer Collection Account
pursuant to this Agreement.
(b) All amounts deposited to the Master Servicer Collection Account
shall be held by the Master Servicer in the name of the Trustee in trust for the
benefit of the Certificateholders in accordance with the terms and provisions of
this Agreement. The requirements for crediting the Master Servicer Collection
Account or the Distribution Account shall be exclusive, it being understood and
agreed that, without limiting the generality of the foregoing, payments in the
nature of (i) prepayment or late payment charges or assumption, tax service,
statement account or payoff, substitution, satisfaction, release and other like
fees and charges and (ii) the items enumerated in Subsections 4.05(a)(i), (ii),
(iii), (iv), (vi), (vii), (viii), (ix), (x), (xi) and (xii), need not be
credited by the Master Servicer or the related Servicer to the Distribution
Account or the Master Servicer Collection Account, as applicable. In the event
that the Master Servicer shall deposit or cause to be deposited to the
Distribution Account any amount not required to be credited thereto, the
Trustee, upon receipt of a written request therefor signed by a Servicing
Officer of the Master Servicer, shall promptly transfer such amount to the
Master Servicer, any provision herein to the contrary notwithstanding.
(c) The amount at any time credited to the Master Servicer Collection
Account may be invested, in the name of the Trustee, or its nominee, for the
benefit of the Holders of the Certificates, in Permitted Investments as directed
by Master Servicer. All Permitted Investments shall mature or be subject to
redemption or withdrawal on or before, and shall be held until, the next
succeeding Distribution Account Deposit Date. Any and all investment earnings on
amounts on deposit in the Master Servicer Account from time to time shall be for
the account of the Master Servicer. The Master Servicer from time to time shall
be permitted to withdraw or receive distribution of any and all investment
earnings from the Master Servicer Collection Account. The risk of loss of moneys
required to be distributed to the Holders of the Certificates resulting from
such investments shall be borne by and be the risk of the Master Servicer. The
Master Servicer shall deposit the amount of any such loss in the Master Servicer
Collection Account within two Business Days of receipt of notification of such
loss but not later than the second Business Day prior to the Distribution Date
on which the moneys so invested are required to be distributed to the
Certificateholders.
Section 4.03 PERMITTED WITHDRAWALS AND TRANSFERS FROM THE MASTER
SERVICER COLLECTION ACCOUNT.
(a) The Master Servicer will, from time to time on demand of a Servicer
or the Securities Administrator, make or cause to be made such withdrawals or
transfers from the Master Servicer Collection Account as the Master Servicer has
designated for such transfer or withdrawal pursuant to this Agreement and the
related Servicing Agreement. The Master Servicer may clear and terminate the
Master Servicer Collection Account pursuant to Section 10.01 and remove amounts
from time to time deposited in error.
(b) On an ongoing basis, the Master Servicer shall withdraw from the
Master Servicer Collection Account (i) any expenses, costs and liabilities
recoverable by the Trustee, the Master Servicer or the Securities Administrator
or the Custodian pursuant to Sections 3.03, 7.03 and 9.05 and (ii) any amounts
payable to the Master Servicer as set forth in Section 3.14; provided however,
that the Master Servicer shall be obligated to pay from its own funds any
amounts which it is required to pay under Section 7.03(a).
(c) In addition, on or before each Distribution Account Deposit Date,
the Master Servicer shall deposit in the Distribution Account (or remit to the
Trustee for deposit therein) any Monthly Advances required to be made by the
Master Servicer with respect to the Mortgage Loans.
(d) No later than 3:00 p.m. New York time on each Distribution Account
Deposit Date, the Master Servicer will transfer all Available Funds on deposit
in the Master Servicer Collection Account with respect to the related
Distribution Date to the Paying Agent for deposit in the Distribution Account.
Section 4.04 DISTRIBUTION ACCOUNT.
(a) The Paying Agent shall establish and maintain in the name of the
Paying Agent, for the benefit of the related Certificateholders, the
Distribution Account as a segregated trust account or accounts.
(b) All amounts deposited to the Distribution Account shall be held by
the Paying Agent in the name of the Paying Agent in trust for the benefit of the
related Certificateholders in accordance with the terms and provisions of this
Agreement.
(c) The Distribution Account shall constitute a trust account of the
Trust Fund segregated on the books of the Paying Agent and held by the Paying
Agent in trust in its Corporate Trust Office, and the Distribution Account and
the funds deposited therein shall not be subject to, and shall be protected
from, all claims, liens, and encumbrances of any creditors or depositors of the
Paying Agent or the Master Servicer (whether made directly, or indirectly
through a liquidator or receiver of the Paying Agent or the Master Servicer).
The Distribution Account shall be an Eligible Account. The amount at any time
credited to the Distribution Account shall be (i) held in cash and fully insured
by the FDIC to the maximum coverage provided thereby or (ii) invested in the
name of the Paying Agent, in such Permitted Investments as may be selected by
the Master Servicer or deposited in demand deposits with such depository
institutions as may be selected by the Master Servicer, provided that time
deposits of such depository institutions would be a Permitted Investment. All
Permitted Investments shall mature or be subject to redemption or withdrawal on
or before, and shall be held until, the next succeeding Distribution Date if the
obligor for such Permitted Investment is the Paying Agent or, if such obligor is
any other Person, the Business Day preceding such Distribution Date. All
investment earnings on amounts on deposit in the Distribution Account or benefit
from funds uninvested therein from time to time shall be for the account of the
Master Servicer. The Master Servicer shall be permitted to withdraw or receive
distribution of any and all investment earnings from the Distribution Account on
each Distribution Date. If there is any loss on a Permitted Investment or demand
deposit, the Master Servicer shall remit the amount of the loss to the Paying
Agent who shall deposit such amount in the Distribution Account. With respect to
the Distribution Account and the funds deposited therein, the Master Servicer
shall take such action as may be necessary to ensure that the related
Certificateholders shall be entitled to the priorities afforded to such a trust
account (in addition to a claim against the estate of the Paying Agent) as
provided by 12 U.S.C. ss. 92a(e), and applicable regulations pursuant thereto,
if applicable, or any applicable comparable state statute applicable to state
chartered banking corporations.
Section 4.05 PERMITTED WITHDRAWALS AND TRANSFERS FROM THE DISTRIBUTION
ACCOUNT.
(a) The Paying Agent will, from time to time on written demand of the
Master Servicer or the Securities Administrator, make or cause to be made such
withdrawals or transfers from the Distribution Account as the Master Servicer
has designated for such transfer or withdrawal pursuant to this Agreement and
the Servicing Agreements or as the Securities Administrator has instructed
hereunder for the following purposes (limited in the case of amounts due the
Master Servicer to those not withdrawn from the Master Servicer Collection
Account in accordance with the terms of this Agreement):
(i) to reimburse the Master Servicer or any Servicer for any
Monthly Advance of its own funds, the right of the Master Servicer or a
Servicer to reimbursement pursuant to this subclause (i) being limited
to amounts received on a particular Mortgage Loan (including, for this
purpose, the Repurchase Price therefor, Insurance Proceeds, Liquidation
Proceeds and Subsequent Recoveries) which represent late payments or
recoveries of the principal of or interest on such Mortgage Loan
respecting which such Monthly Advance was made;
(ii) to reimburse the Master Servicer or any Servicer from
Insurance Proceeds or Liquidation Proceeds relating to a particular
Mortgage Loan for amounts expended by the Master Servicer or such
Servicer in good faith in connection with the restoration of the
related Mortgaged Property which was damaged by an Uninsured Cause or
in connection with the liquidation of such Mortgage Loan;
(iii) to reimburse the Master Servicer or any Servicer from
Insurance Proceeds relating to a particular Mortgage Loan for insured
expenses incurred with respect to such Mortgage Loan and to reimburse
the Master Servicer or such Servicer from Liquidation Proceeds from a
particular Mortgage Loan for Liquidation Expenses incurred with respect
to such Mortgage Loan; provided that the Master Servicer shall not be
entitled to reimbursement for Liquidation Expenses with respect to a
Mortgage Loan to the extent that (i) any amounts with respect to such
Mortgage Loan were paid as Excess Liquidation Proceeds pursuant to
clause (xi) of this Subsection 4.03 (a) to the Master Servicer; and
(ii) such Liquidation Expenses were not included in the computation of
such Excess Liquidation Proceeds;
(iv) to reimburse the Master Servicer or any Servicer for
advances of funds (other than Monthly Advances) made with respect to
the Mortgage Loans, and the right to reimbursement pursuant to this
subclause being limited to amounts received on the related Mortgage
Loan (including, for this purpose, the Repurchase Price therefor,
Insurance Proceeds, Liquidation Proceeds and Subsequent Recoveries)
which represent late recoveries of the payments for which such advances
were made;
(v) to reimburse the Master Servicer or any Servicer for any
Monthly Advance or advance, after a Realized Loss has been allocated
with respect to the related Mortgage Loan if the Monthly Advance or
advance has not been reimbursed pursuant to clauses (i) and (iv);
(vi) to pay the Master Servicer as set forth in Section 3.14;
(vii) to reimburse the Master Servicer for expenses, costs and
liabilities incurred by and reimbursable to it pursuant to Sections
3.03, 7.04(c) and (d);
(viii) to pay to the Master Servicer, as additional servicing
compensation, any Excess Liquidation Proceeds to the extent not
retained by the related Servicer;
(ix) to reimburse or pay any Servicer any such amounts as are
due thereto under the applicable Servicing Agreement and have not been
retained by or paid to the Servicer, to the extent provided in the
related Servicing Agreement;
(x) to reimburse the Trustee, the Securities Administrator or
the Custodian for expenses, costs and liabilities incurred by or
reimbursable to it pursuant to this Agreement and the Custodial
Agreement;
(xi) to remove amounts deposited in error; and
(xii) to clear and terminate the Distribution Account pursuant
to Section 10.01.
(b) The Master Servicer shall keep and maintain separate accounting, on
a Mortgage Loan by Mortgage Loan basis, for the purpose of accounting for any
reimbursement from the Distribution Account pursuant to subclauses (i) through
(iv) or with respect to any such amounts which would have been covered by such
subclauses had the amounts not been retained by the Master Servicer without
being deposited in the Distribution Account under Section 4.02(b).
(c) On each Distribution Date, the Paying Agent shall distribute the
Available Funds to the extent on deposit in the Distribution Account to the
Holders of the Certificates in accordance with written distribution instructions
provided to it by the Securities Administrator no later than two Business Days
prior to such Distribution Date and determined by the Securities Administrator
in accordance with Section 6.01.
ARTICLE V
Certificates
Section 5.01 CERTIFICATES.
(a) The Depository, the Depositor and the Trustee have entered into a
Depository Agreement dated as of the Closing Date (the "Depository Agreement").
Except for the Residual Certificates, the Non-Offered Certificates (which are
also Physical Certificates) and the Individual Certificates and as provided in
Subsection 5.01(b), the Certificates shall at all times remain registered in the
name of the Depository or its nominee and at all times: (i) registration of such
Certificates may not be transferred by the Certificate Registrar except to a
successor to the Depository; (ii) ownership and transfers of registration of
such Certificates on the books of the Depository shall be governed by applicable
rules established by the Depository; (iii) the Depository may collect its usual
and customary fees, charges and expenses from its Depository Participants; (iv)
the Certificate Registrar shall deal with the Depository as representative of
such Certificate Owners of the respective Class of Certificates for purposes of
exercising the rights of the related Certificateholders under this Agreement,
and requests and directions for and votes of such representative shall not be
deemed to be inconsistent if they are made with respect to different Certificate
Owners; and (v) the Certificate Registrar may rely and shall be fully protected
in relying upon information furnished by the Depository with respect to its
Depository Participants.
The Residual Certificates and the Non-Offered Certificates are
initially Physical Certificates. If at any time the Holders of all of the
Certificates of one or more such Classes request that the Certificate Registrar
cause such Class to become Global Certificates, the Certificate Registrar and
the Depositor will take such action as may be reasonably required to cause the
Depository to accept such Class or Classes for trading if it may legally be so
traded.
All transfers by Certificate Owners of such respective Classes of
Book-Entry Certificates and any Global Certificates shall be made in accordance
with the procedures established by the Depository Participant or brokerage firm
representing such Certificate Owners. Each Depository Participant shall only
transfer Book-Entry Certificates of Certificate Owners it represents or of
brokerage firms for which it acts as agent in accordance with the Depository's
normal procedures.
(b) If (i)(A) the Depositor advises the Certificate Registrar in
writing that the Depository is no longer willing or able to properly discharge
its responsibilities as Depository and (B) the Depositor is unable to locate a
qualified successor within 30 days or (ii) the Depositor at its option advises
the Certificate Registrar in writing that it elects to terminate the book-entry
system through the Depository, the Certificate Registrar shall request that the
Depository notify all Certificate Owners of the occurrence of any such event and
of the availability of definitive, fully registered Certificates to Certificate
Owners requesting the same. Upon surrender to the Certificate Registrar of the
Certificates by the Depository, accompanied by registration instructions from
the Depository for registration, the Certificate Registrar shall issue the
definitive Certificates. Neither the Depositor nor the Certificate Registrar
shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
(c) (i) REMIC I will be evidenced by (x) the REMIC I Regular Interests,
which will be uncertificated and non-transferable and are hereby designated as
the "regular interests" in REMIC I and have the initial principal amounts or
notional amount and accrue interest at the Pass-Through Rates equal to those set
forth in this Section 5.01(c)(i), and (y) the Class I-R-1 Certificates, which
are hereby designated as the sole class of "residual interests" in REMIC I (each
of the foregoing as designated below).
REMIC I INTEREST INITIAL PRINCIPAL AMOUNT PASS-THROUGH RATE RELATED SUBGROUP
---------------- ------------------------ ----------------- ----------------
1-Sub $ 1,667.35 7.0000% Subgroup I-1
2-Sub $ 1,260.85 7.5000% Subgroup I-2
3-Sub $ 2,431.32 8.0000% Subgroup I-3
PO $ 928,088.74 0.0000% Subgroup I-1
1-ZZZ $ 25,355,681.95 7.0000% Subgroup I-1
2-ZZZ $ 19,166,584.43 7.5000% Subgroup I-2
3-ZZZ $ 36,985,885.96 8.0000% Subgroup I-3
X (1) (2) Subgroup 1-3
I-R-2 $ 50.00 0.0000% N/A
I-R-3 $ 50.00 0.0000% N/A
Class I-R-1 $ 50.00 0.0000% N/A
----------
(1) REMIC I Regular Interest X will not have an initial principal amount but
will accrue interest on its uncertificated notional amount calculated in
accordance with the definition of "Uncertificated Notional Amount" herein.
(2) A variable pass-through rate equal to the excess, if any, of (a) the
weighted average Net Mortgage Rate on the Group I Mortgage Loans with Net
Mortgage Rates greater than 8.0000% per annum over (b) 8.0000% per annum.
Interest shall be payable to the REMIC I Regular Interests at the
applicable Pass-Through Rates on the related Uncertificated Principal Balances
or Uncertificated Notional Amount. On the Distribution Date in January 2006,
REMIC I will be deemed to distribute to REMIC III $50 in respect of each of
REMIC I Regular Interest I-R-2 and REMIC I Regular Interest I-R-3 in reduction
of the Uncertificated Principal Balances thereof from the Class I-R Deposit.
Distributions of principal shall be deemed to be made to the REMIC I Regular
Interests, in each case from amounts received on the Group I Mortgage Loans in
the related Subgroup, first, to the related REMIC I Regular Interest ending with
the designation "Sub," so that the Uncertificated Principal Balance of each such
REMIC I Regular Interest is equal to 0.1% of the excess of (x) the aggregate
Scheduled Principal Balance of the Group I Mortgage Loans in the related
Subgroup other than the related PO Percentage of the Scheduled Principal Balance
of any Discount Mortgage Loan in Loan Group I over (y) the aggregate Current
Principal Amount of the Group I Senior Certificates related to such Subgroup
other than the Class I-PO Certificates (except that if any such excess is a
larger number than in the preceding distribution period, the least amount of
principal shall be distributed to such REMIC I Regular Interests such that the
REMIC I Subordinated Balance Ratio is maintained); and second, any remaining
principal from each Subgroup to the related REMIC I Regular Interest ending with
the designation "ZZZ" (provided that a portion of the remaining principal equal
to the Class I-PO Certificate Principal Distribution Amount attributable to the
Discount Mortgage Loans in Loan Group I will be distributed to REMIC I Regular
Interest PO). Realized Losses from each Subgroup shall be applied after all
distributions have been made on each Distribution Date, first, to the related
REMIC I Regular Interest ending with the designation "Sub," so that the
Uncertificated Principal Balance of each such REMIC I Regular Interest is equal
to 0.1% of the excess of (x) the aggregate Scheduled Principal Balance of the
Mortgage Loans in the related Subgroup other than the related PO Percentage of
the Scheduled Principal Balance of any Discount Mortgage Loan in Loan Group I
over (y) the aggregate Current Principal Amount of the Group I Senior
Certificates related to such Subgroup other than the Class I-PO Certificates
(except that if any such excess is a larger number than in the preceding
distribution period, the least amount of Realized Losses shall be applied to
such REMIC I Regular Interests such that the REMIC I Subordinated Balance Ratio
is maintained); and second, any remaining Realized Losses from each Subgroup to
the related REMIC I Regular Interests ending with the designation "ZZZ" (except
that if a Realized Loss is recognized with respect to a Discount Mortgage Loan
in Loan Group I, the applicable portion of such Realized Loss will be allocated
to REMIC I Regular Interest PO).
The aggregate amount of any Net Interest Shortfalls related to the
Group I Mortgage Loans for any Distribution Date shall be allocated to accrued
interest payable to the REMIC I Regular Interests other than REMIC I Regular
Interest PO, PRO RATA, based on, and to the extent of, one month's interest at
the then applicable respective Pass-Through Rates on the respective
Uncertificated Principal Balances of each such REMIC I Regular Interest.
(ii) REMIC II will be evidenced by (x) the REMIC II Regular Interests,
which will be uncertificated and non-transferable and are hereby designated as
the "regular interests" in REMIC II and have the initial principal amounts and
notional amount and accrue interest at the Pass-Through Rates equal to those set
forth in this Section 5.01(c)(ii), and (y) the Class II-R-1 Certificates, which
are hereby designated as the sole class of "residual interests" in REMIC II
(each of the foregoing as designated below).
REMIC II INTEREST INITIAL PRINCIPAL AMOUNT PASS-THROUGH RATE RELATED SUBGROUP
----------------- ------------------------ ----------------- ----------------
II-A-1 $ 97,554,000.00 5.5000% Loan Group II
II-A-2 $ 7,815,000.00 5.5000% Loan Group II
II-A-3 $ 11,800,000.00 5.5000% Loan Group II
II-A-4 $ 464,000.00 5.5000% Loan Group II
II-X (1) (2) Loan Group II
II-PO $ 344,343.42 0.0000% Loan Group II
Class II-R-1 $ 100.00 0.0000% N/A
II-B-1 $ 1,840,000.00 5.5000% Loan Group II
II-B-2 $ 981,000.00 5.5000% Loan Group II
II-B-3 $ 674,000.00 5.5000% Loan Group II
II-B-4 $ 675,000.00 5.5000% Loan Group II
II-B-5 $ 245,000.00 5.5000% Loan Group II
II-B-6 $ 245,970.39 5.5000% Loan Group II
----------
(1) REMIC II Regular Interest II-X will not have an initial principal amount
but will accrue interest on its uncertificated notional amount calculated
in accordance with the definition of "Uncertificated Notional Amount"
herein.
(2) A variable pass-through rate equal to the excess, if any, of (a) the
weighted average Net Mortgage Rate on the Group II Mortgage Loans with Net
Mortgage Rates greater than 5.5000% per annum over (b) 5.5000% per annum.
Interest shall be payable to the REMIC II Regular Interests at the
applicable Pass-Through Rates on the related Uncertificated Principal Balances
and Uncertificated Notional Amount. Principal shall be payable to, and
shortfalls, losses and prepayments are allocable to, the REMIC II Regular
Interests as such amounts are payable and allocable to the Corresponding
Certificates.
(iii) REMIC III will be evidenced by (x) the REMIC III Regular
Interests, which will be uncertificated and non-transferable and are hereby
designated as the "regular interests" in REMIC III and have the initial
principal amounts or notional amount and accrue interest at the Pass-Through
Rates equal to those set forth in this Section 5.01(c)(iii), and (y) the Class
I-R-2 Certificates, which are hereby designated as the sole class of "residual
interests" in REMIC III (each of the foregoing as designated below).
REMIC III INTEREST INITIAL PRINCIPAL AMOUNT PASS-THROUGH RATE RELATED SUBGROUP
------------------ ------------------------ ----------------- ----------------
I-A-1 $ 23,690,000.00 7.0000% Loan Group I
I-A-2 $ 17,907,000.00 7.5000% Loan Group I
I-A-3 $ 34,557,000.00 8.0000% Loan Group I
I-X (1) (2) Loan Group I
I-PO $ 928,088.74 0.0000% Loan Group I
I-R-3 $ 50.00 0.0000% N/A
Class I-R-2 $ 50.00 0.0000% N/A
I-B-1 $ 1,608,000.00 (3) Loan Group I
I-B-2 $ 1,072,000.00 (3) Loan Group I
I-B-3 $ 700,000.00 (3) Loan Group I
I-B-4 $ 1,526,000.00 (3) Loan Group I
I-B-5 $ 123,000.00 (3) Loan Group I
I-B-6 $ 330,511.86 (3) Loan Group I
----------
(1) REMIC III Regular Interest I-X will not have an initial principal amount
but will accrue interest on its uncertificated notional amount calculated
in accordance with the definition of "Uncertificated Notional Amount"
herein.
(2) REMIC III Regular Interest I-X will not have a Pass-Through Rate but will
be entitled to receive 100% of the interest payable with respect to REMIC I
Regular Interest X.
(3) REMIC III Regular Interests ▇-▇-▇, ▇-▇-▇, ▇-▇-▇, ▇-▇-▇, ▇-▇-▇ and I-B-6
will each bear interest at a variable rate equal to the weighted average of
the Pass-Through Rates on REMIC I Regular Interests 1-Sub, 2-Sub and 3-Sub,
weighted on the basis of the Uncertificated Principal Balances of each such
REMIC I Regular Interest immediately preceding the related Distribution
Date.
Interest shall be payable to the REMIC III Regular Interests at the
applicable Pass-Through Rates on the related Uncertificated Principal Balances
or Uncertificated Notional Amount. Principal shall be payable to, and
shortfalls, losses and prepayments are allocable to, the REMIC III Regular
Interests as such amounts are payable and allocable to the Corresponding
Certificates; provided that, solely for purposes of the foregoing, any
shortfalls or losses otherwise allocable to the Class I-XB Certificates shall be
deemed to be allocated entirely to the Class I-B-1, Class I-B-2 and Class I-B-3
Certificates on a pro rata basis.
(iv) REMIC IV will be evidenced by (x) the Certificates (other than the
Class R Certificates), which are hereby designated as the "regular interests" in
REMIC IV and have the initial principal amounts and notional amounts and accrue
interest at the Pass-Through Rates equal to those set forth in this Section
5.01(c)(iv), and (y) the Class I-R-3 Certificates, which are hereby designated
as the sole class of "residual interests" in REMIC IV (each of the foregoing as
designated below).
DESIGNATION INITIAL PRINCIPAL AMOUNT PASS-THROUGH RATE
---------------------------------- ---------------------------------------- -----------------------------------
I-A-1 $ 23,690,000.00 7.00%
I-A-2 $ 17,907,000.00 7.50%
I-A-3 $ 34,557,000.00 8.00%
I-PO $ 928,088.74 0.00%
I-X (1) (2)
I-R-1 $ 50.00 0.00%
I-R-2 $ 50.00 0.00%
I-R-3 $ 50.00 0.00%
I-B-1 $ 1,608,000.00 6.00%
I-B-2 $ 1,072,000.00 6.00%
I-B-3 $ 700,000.00 6.00%
I-B-4 $ 1,526,000.00 (3)
I-B-5 $ 123,000.00 (3)
I-B-6 $ 330,511.86 (3)
I-XB (1) (4)
II-A-1 $ 97,554,000.00 5.50%
II-A-2 $ 7,815,000.00 5.50%
II-A-3 $ 11,800,000.00 5.50%
II-A-4 $ 464,000.00 5.50%
II-PO $ 344,343.42 0.00%
II-X (1) (5)
II-R-1 $ 100.00 0.00%
II-B-1 $ 1,840,000.00 5.50%
II-B-2 $ 981,000.00 5.50%
II-B-3 $ 674,000.00 5.50%
II-B-4 $ 675,000.00 5.50%
II-B-5 $ 245,000.00 5.50%
II-B-6 $ 245,970.39 5.50%
----------
(1) As described in the definition of Notional Amount herein.
(2) A variable pass-through rate equal to the excess, if any, of (a) the
weighted average Net Mortgage Rate on the Group I Mortgage Loans with Net
Mortgage Rates greater than 8.00% per annum over (b) 8.00% per annum;
provided that, for federal income tax purposes the Class I-X Certificates
will not have a Pass-Through Rate but will be entitled to receive 100% of
the interest payable with respect to REMIC III Regular Interest I-X.
(3) A variable pass-through rate equal to the weighted average of 7.00%, 7.50%
and 8.00% per annum, weighted in proportion to the results of subtracting
from the aggregate Scheduled Principal Balance of the Group I Mortgage
Loans in Subgroup I-1, Subgroup I-2 and Subgroup I-3, respectively (other
than the related PO Percentage of the principal balance of such Group I
Mortgage Loans), the aggregate Current Principal Amount of the related
Class or Classes of Group I Senior Certificates (other than the Class I-PO
Certificates); provided that, for federal income tax purposes, the Class
I-B Certificates will each bear interest at a rate equivalent to the
foregoing, expressed as the weighted average of the Pass-Through Rates on
REMIC III Regular Interests I-B-4, I-B-5 and I-B-6, weighted on the basis
of the Uncertificated Principal Balances of each such REMIC III Regular
Interest immediately preceding the related Distribution Date.
(4) A variable pass-through rate equal to a per annum rate equal to the excess,
if any, of (i) the weighted average of 7.00%, 7.50% and 8.00% per annum,
weighted in proportion to the results of subtracting from the aggregate
Scheduled Principal Balance of the Group I Mortgage Loans in Subgroup I-1,
Subgroup I-2 and Subgroup I-3, respectively (other than the related PO
Percentage of the principal balance of such Group I Mortgage Loans), the
aggregate Current Principal Amount of the related Class or Classes of Group
I Senior Certificates (other than the Class I-PO Certificates), over (ii)
6.00% per annum; provided that, for federal income tax purposes the Class
I-XB Certificates will bear interest at a rate equivalent to the foregoing,
expressed as the weighted average of the Pass-Through Rates on REMIC III
Regular Interests II-B-1, II-B-2 and II-B-3, weighted on the basis of the
Uncertificated Principal Balances of each such REMIC III Regular Interest
immediately preceding the related Distribution Date, minus 6.00%.
(5) A variable pass-through rate equal to the excess, if any, of (a) the
weighted average Net Mortgage Rate on the Group II Mortgage Loans with Net
Mortgage Rates greater than 5.50% per annum over (b) 5.50% per annum;
provided that, for federal income tax purposes the Class II-X Certificates
will not have a Pass-Through Rate but will be entitled to receive 100% of
the interest payable with respect to REMIC II Regular Interest II-X.
(d) For purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately following the maturity date for
the Group I Mortgage Loan with the latest maturity date in the Trust Fund has
been designated as the "latest possible maturity date" for the REMIC I Regular
Interests, REMIC III Regular Interests and the Group I Certificates, and the
Distribution Date immediately following the maturity date for the Group II
Mortgage Loan with the latest maturity date in the Trust Fund has been
designated as the "latest possible maturity date" for the REMIC II Regular
Interests and the Group II Certificates.
(e) With respect to each Distribution Date, each Class of Certificates
(other than the Class R Certificates) shall accrue interest during the related
Interest Accrual Period. With respect to each Distribution Date and each such
Class of Certificates, interest shall be calculated on the basis of a 360-day
year comprised of twelve 30-day months, based upon the respective Pass-Through
Rate set forth, or determined as provided, above and the Current Principal
Amount (or Notional Amount in the case of the Interest Only Certificates) of
such Class applicable to such Distribution Date.
(f) The Certificates shall be substantially in the forms set forth in
Exhibits ▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇-▇ or A-6, as applicable. On original issuance,
the Certificate Registrar shall sign, countersign and shall deliver them at the
direction of the Depositor. Pending the preparation of Definitive Certificates
of any Class, the Certificate Registrar may sign and countersign temporary
Certificates that are printed, lithographed or typewritten, in authorized
denominations for Certificates of such Class, substantially of the tenor of the
Definitive Certificates in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers or authorized signatories executing such Certificates may determine, as
evidenced by their execution of such Certificates. If temporary Certificates are
issued, the Depositor will cause Definitive Certificates to be prepared without
unreasonable delay. After the preparation of Definitive Certificates, the
temporary Certificates shall be exchangeable for definitive Certificates upon
surrender of the temporary Certificates at the office of the Certificate
Registrar, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Certificates, the Certificate Registrar shall sign and
countersign and deliver in exchange therefor a like aggregate principal amount,
in authorized denominations for such Class, of Definitive Certificates of the
same Class. Until so exchanged, such temporary Certificates shall in all
respects be entitled to the same benefits as Definitive Certificates.
(g) Each Class of Book-Entry Certificates will be registered as a
single Certificate of such Class held by a nominee of the Depository or the DTC
Custodian, and beneficial interests will be held by investors through the
book-entry facilities of the Depository in minimum denominations of in the case
of the Certificates (other than the Residual Certificates and the Class II-A-2
Certificates), $100,000, and for the Class II-A-2 Certificates, $1,000, and in
each case increments of $1.00 in excess thereof, except that one Certificate of
each such Class may be issued in a different amount so that the sum of the
denominations of all outstanding Certificates of such Class shall equal the
Current Principal Amount of such Class on the Closing Date. On the Closing Date,
the Certificate Registrar shall execute and countersign Physical Certificates
all in an aggregate principal amount that shall equal the Current Principal
Amount of such Class on the Closing Date. The Class I-R-1, Class I-R-2 and Class
I-R-3 Certificates shall each be issued in certificated fully-registered form,
in the denomination of $50. The Class II-R-1 Certificates shall each be issued
in certificated fully-registered form, in the denomination of $100. Each Class
of Global Certificates, if any, shall be issued in fully registered form in
minimum dollar denominations of $100,000 and integral multiples of $1.00 in
excess thereof, except that one Certificate of each Class may be in a different
denomination so that the sum of the denominations of all outstanding
Certificates of such Class shall equal the Current Principal Amount of such
Class on the Closing Date. On the Closing Date, the Certificate Registrar shall
execute and countersign (i) in the case of each Class of the Offered
Certificates, the Certificate in the entire Current Principal Amount of the
respective Class and (ii) in the case of each Class of the Non-Offered
Certificates, Individual Certificates all in an aggregate principal amount that
shall equal the Current Principal Amount of each such respective Class on the
Closing Date. The Certificates referred to in clauses (i) and (ii) and if at any
time there are to be Global Certificates, the Global Certificates shall be
delivered by the Depositor to the Depository or pursuant to the Depository's
instructions, shall be delivered by the Depositor on behalf of the Depository to
and deposited with the DTC Custodian. The Certificate Registrar shall sign the
Certificates by facsimile or manual signature and countersign them by manual
signature on behalf of the Certificate Registrar by one or more authorized
signatories, each of whom shall be Responsible Officers of the Certificate
Registrar or its agent. A Certificate bearing the manual and facsimile
signatures of individuals who were the authorized signatories of the Certificate
Registrar or its agent at the time of issuance shall bind the Certificate
Registrar, notwithstanding that such individuals or any of them have ceased to
hold such positions prior to the delivery of such Certificate.
(h) No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless there appears on such Certificate
the manually executed countersignature of the Certificate Registrar or its
agent, and such countersignature upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly executed
and delivered hereunder. All Certificates issued on the Closing Date shall be
dated the Closing Date. All Certificates issued thereafter shall be dated the
date of their countersignature.
(i) The Closing Date is hereby designated as the "startup" day of each
REMIC within the meaning of Section 860G(a)(9) of the Code.
(j) For federal income tax purposes, each REMIC shall have a tax year
that is a calendar year and shall report income on an accrual basis.
(k) The Trustee on behalf of the Trust shall cause each REMIC to timely
elect to be treated as a REMIC under Section 860D of the Code. Any
inconsistencies or ambiguities in this Agreement or in the administration of any
Trust established hereby shall be resolved in a manner that preserves the
validity of such elections.
(l) The following legend shall be placed on the Residual Certificates,
whether upon original issuance or upon issuance of any other Certificate of any
such Class in exchange therefor or upon transfer thereof:
THIS CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR
INDIRECTLY BY, OR ON BEHALF OF, AN EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT WHICH IS SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED, UNLESS THE PROPOSED TRANSFEREE PROVIDES THE
CERTIFICATE REGISTRAR WITH AN OPINION OF COUNSEL ADDRESSED TO
THE DEPOSITOR, TRUSTEE, CERTIFICATE REGISTRAR, MASTER
SERVICER AND SECURITIES ADMINISTRATOR AND ON WHICH THEY MAY
RELY THAT IS SATISFACTORY TO THE TRUSTEE THAT THE PURCHASE OF
CERTIFICATES ON BEHALF OF SUCH PERSON WILL NOT RESULT IN OR
CONSTITUTE A NONEXEMPT PROHIBITED TRANSACTION, IS PERMISSIBLE
UNDER APPLICABLE LAW AND WILL NOT GIVE RISE TO ANY ADDITIONAL
OBLIGATIONS ON THE PART OF THE DEPOSITOR, CERTIFICATE
REGISTRAR, THE MASTER SERVICER, THE SECURITIES ADMINISTRATOR,
CERTIFICATE REGISTRAR OR THE TRUSTEE.
The following legend shall be placed upon the Class I-B-4, Class I-B-5, Class
I-B-6, Class II-B-4, Class II-B-5 and Class II-B-6 Certificates, whether upon
original issuance or upon issuance of any other Certificate of any such Class in
exchange therefor or upon transfer thereof:
THIS CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR INDIRECTLY BY, OR ON
BEHALF OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT WHICH IS
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED,
UNLESS THE TRANSFEREE CERTIFIES OR REPRESENTS THAT THE PROPOSED TRANSFER AND
HOLDING OF A CERTIFICATE AND THE SERVICING, MANAGEMENT AND OPERATION OF THE
TRUST AND ITS ASSETS: (I) WILL NOT RESULT IN ANY PROHIBITED TRANSACTION WHICH IS
NOT COVERED UNDER AN INDIVIDUAL OR CLASS PROHIBITED TRANSACTION EXEMPTION,
INCLUDING, BUT NOT LIMITED TO, PROHIBITED TRANSACTION EXEMPTION ("PTE") 84-14,
▇▇▇ ▇▇-▇▇, ▇▇▇ ▇▇-▇, ▇▇▇ 95-60 OR PTE 96-23 AND (II) WILL NOT GIVE RISE TO ANY
ADDITIONAL OBLIGATIONS ON THE PART OF THE DEPOSITOR, THE SECURITIES
ADMINISTRATOR, THE MASTER SERVICER, CERTIFICATE REGISTRAR OR THE TRUSTEE, WHICH
WILL BE DEEMED REPRESENTED BY AN OWNER OF A BOOK-ENTRY CERTIFICATE OR A GLOBAL
CERTIFICATE OR UNLESS THE OPINION SPECIFIED IN SECTION 5.07 OF THE AGREEMENT IS
PROVIDED.
Section 5.02 REGISTRATION OF TRANSFER AND EXCHANGE OF CERTIFICATES.
(a) The Certificate Registrar shall maintain at its Corporate Trust
Office a separate Certificate Register for Certificates in which, subject to
such reasonable regulations as it may prescribe, the Certificate Registrar shall
provide for the registration of the related Certificates and of transfers and
exchanges of the related Certificates as herein provided.
(b) Subject to Subsection 5.01(a) and, in the case of any Global
Certificate or Physical Certificate upon the satisfaction of the conditions set
forth below, upon surrender for registration of transfer of any Certificate at
any office or agency of the Certificate Registrar maintained for such purpose,
the Certificate Registrar shall sign, countersign and shall deliver, in the name
of the designated transferee or transferees, a new Certificate of a like Class
and aggregate Fractional Undivided Interest, but bearing a different number.
(c) By acceptance of an Individual Certificate, whether upon original
issuance or subsequent transfer, each holder of such a Certificate acknowledges
the restrictions on the transfer of such Certificate set forth in the Securities
Legend and agrees that it will transfer such a Certificate only as provided
herein. In addition to the provisions of Subsection 5.02(h), the following
restrictions shall apply with respect to the transfer and registration of
transfer of an Individual Certificate to a transferee that takes delivery in the
form of an Individual Certificate:
(i) The Certificate Registrar shall register the transfer of
an Individual Certificate if the requested transfer is being made to a
transferee who has provided the Certificate Registrar with a Rule 144A
Certificate or comparable evidence as to its QIB status.
(ii) The Certificate Registrar shall register the transfer of
any Individual Certificate if (x) the transferor has advised the Certificate
Registrar in writing that the Certificate is being transferred to an
Institutional Accredited Investor; and (y) prior to the transfer the transferee
furnishes to the Certificate Registrar an Investment Letter (and the Certificate
Registrar shall be fully protected in so doing), provided that, if based upon an
Opinion of Counsel addressed to the Certificate Registrar to the effect that the
delivery of (x) and (y) above are not sufficient to confirm that the proposed
transfer is being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act and other
applicable laws, the Certificate Registrar shall as a condition of the
registration of any such transfer require the transferor to furnish such other
certifications, legal opinions or other information prior to registering the
transfer of an Individual Certificate as shall be set forth in such Opinion of
Counsel.
(d) Subject to Subsection 5.02(h), so long as a Global Certificate of
such Class is outstanding and is held by or on behalf of the Depository,
transfers of beneficial interests in such Global Certificate, or transfers by
holders of Individual Certificates of such Class to transferees that take
delivery in the form of beneficial interests in the Global Certificate, may be
made only in accordance with this Subsection 5.02(d) and in accordance with the
rules of the Depository:
(i) In the case of a beneficial interest in the Global
Certificate being transferred to an Institutional Accredited Investor, such
transferee shall be required to take delivery in the form of an Individual
Certificate or Certificates and the Certificate Registrar shall register such
transfer only upon compliance with the provisions of Subsection 5.02(c)(ii).
(ii) In the case of a beneficial interest in a Class of Global
Certificates being transferred to a transferee that takes delivery in the form
of an Individual Certificate or Certificates of such Class, except as set forth
in clause (i) above, the Certificate Registrar shall register such transfer only
upon compliance with the provisions of Subsection 5.02(c)(i).
(iii) In the case of an Individual Certificate of a Class
being transferred to a transferee that takes delivery in the form of a
beneficial interest in a Global Certificate of such Class, the Certificate
Registrar shall register such transfer if the transferee has provided the
Certificate Registrar with a Rule 144A Certificate or comparable evidence as to
its QIB status.
(iv) No restrictions shall apply with respect to the transfer
or registration of transfer of a beneficial interest in the Global Certificate
of a Class to a transferee that takes delivery in the form of a beneficial
interest in the Global Certificate of such Class; provided that each such
transferee shall be deemed to have made such representations and warranties
contained in the Rule 144A Certificate as are sufficient to establish that it is
a QIB.
(e) Subject to Subsection 5.02(h), an exchange of a beneficial interest
in a Global Certificate of a Class for an Individual Certificate or Certificates
of such Class, an exchange of an Individual Certificate or Certificates of a
Class for a beneficial interest in the Global Certificate of such Class and an
exchange of an Individual Certificate or Certificates of a Class for another
Individual Certificate or Certificates of such Class (in each case, whether or
not such exchange is made in anticipation of subsequent transfer, and, in the
case of the Global Certificate of such Class, so long as such Certificate is
outstanding and is held by or on behalf of the Depository) may be made only in
accordance with this Subsection 5.02(e) and in accordance with the rules of the
Depository:
(i) A holder of a beneficial interest in a Global Certificate
of a Class may at any time exchange such beneficial interest for an Individual
Certificate or Certificates of such Class.
(ii) A holder of an Individual Certificate or Certificates of
a Class may exchange such Certificate or Certificates for a beneficial interest
in the Global Certificate of such Class if such holder furnishes to the
Certificate Registrar a Rule 144A Certificate or comparable evidence as to its
QIB status.
(iii) A holder of an Individual Certificate of a Class may
exchange such Certificate for an equal aggregate principal amount of Individual
Certificates of such Class in different authorized denominations without any
certification.
(f) (i) Upon acceptance for exchange or transfer of an Individual
Certificate of a Class for a beneficial interest in a Global Certificate of such
Class as provided herein, the Certificate Registrar shall cancel such Individual
Certificate and shall (or shall request the Depository to) endorse on the
schedule affixed to the applicable Global Certificate (or on a continuation of
such schedule affixed to the Global Certificate and made a part thereof) or
otherwise make in its books and records an appropriate notation evidencing the
date of such exchange or transfer and an increase in the certificate balance of
the Global Certificate equal to the certificate balance of such Individual
Certificate exchanged or transferred therefor.
(ii) Upon acceptance for exchange or transfer of a beneficial
interest in a Global Certificate of a Class for an Individual Certificate of
such Class as provided herein, the Certificate Registrar shall (or shall request
the Depository to) endorse on the schedule affixed to such Global Certificate
(or on a continuation of such schedule affixed to such Global Certificate and
made a part thereof) or otherwise make in its books and records an appropriate
notation evidencing the date of such exchange or transfer and a decrease in the
certificate balance of such Global Certificate equal to the certificate balance
of such Individual Certificate issued in exchange therefor or upon transfer
thereof.
(g) The Securities Legend shall be placed on any Individual Certificate
issued in exchange for or upon transfer of another Individual Certificate or of
a beneficial interest in a Global Certificate.
(h) Subject to the restrictions on transfer and exchange set forth in
this Section 5.02, the holder of any Individual Certificate may transfer or
exchange the same in whole or in part (in an initial certificate balance equal
to the minimum authorized denomination set forth in Section 5.01(g) above or any
integral multiple of $1.00 in excess thereof) by surrendering such Certificate
at the Corporate Trust Office, or at the office of any transfer agent, together
with an executed instrument of assignment and transfer satisfactory in form and
substance to the Certificate Registrar in the case of transfer and a written
request for exchange in the case of exchange. The holder of a beneficial
interest in a Global Certificate may, subject to the rules and procedures of the
Depository, cause the Depository (or its nominee) to notify the Certificate
Registrar in writing of a request for transfer or exchange of such beneficial
interest for an Individual Certificate or Certificates. Following a proper
request for transfer or exchange, the Certificate Registrar shall, within five
Business Days of such request made at the Corporate Trust Office, sign,
countersign and deliver at the Corporate Trust Office, to the transferee (in the
case of transfer) or holder (in the case of exchange) or send by first class
mail at the risk of the transferee (in the case of transfer) or holder (in the
case of exchange) to such address as the transferee or holder, as applicable,
may request, an Individual Certificate or Certificates, as the case may require,
for a like aggregate Fractional Undivided Interest and in such authorized
denomination or denominations as may be requested. The presentation for transfer
or exchange of any Individual Certificate shall not be valid unless made at the
Corporate Trust Office by the registered holder in person, or by a duly
authorized attorney-in-fact.
(i) At the option of the Certificateholders, Certificates may be
exchanged for other Certificates of authorized denominations of a like Class and
aggregate Fractional Undivided Interest, upon surrender of the Certificates to
be exchanged at the Corporate Trust Office; provided, however, that no
Certificate may be exchanged for new Certificates unless the original Fractional
Undivided Interest represented by each such new Certificate (i) is at least
equal to the minimum authorized denomination or (ii) is acceptable to the
Depositor as indicated to the Certificate Registrar in writing. Whenever any
Certificates are so surrendered for exchange, the Certificate Registrar shall
sign and countersign and the Certificate Registrar shall deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive.
(j) If the Certificate Registrar so requires, every Certificate
presented or surrendered for transfer or exchange shall be duly endorsed by, or
be accompanied by a written instrument of transfer, with a signature guarantee,
in form satisfactory to the Certificate Registrar, duly executed by the holder
thereof or his or her attorney duly authorized in writing.
(k) No service charge shall be made for any transfer or exchange of
Certificates, but the Certificate Registrar may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
(l) The Certificate Registrar shall cancel all Certificates surrendered
for transfer or exchange but shall retain such Certificates in accordance with
its standard retention policy or for such further time as is required by the
record retention requirements of the Securities Exchange Act of 1934, as
amended, and thereafter may destroy such Certificates.
Section 5.03 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.
(a) If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (ii) there is delivered
to the Certificate Registrar such security or indemnity as it may require to
save it harmless, and (iii) the Certificate Registrar has not received notice
that such Certificate has been acquired by a third Person, the Certificate
Registrar shall sign, countersign and deliver, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
tenor and Fractional Undivided Interest but in each case bearing a different
number. The mutilated, destroyed, lost or stolen Certificate shall thereupon be
canceled of record by the Certificate Registrar and shall be of no further
effect and evidence no rights.
(b) Upon the issuance of any new Certificate under this Section 5.03,
the Certificate Registrar may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Certificate
Registrar) connected therewith. Any duplicate Certificate issued pursuant to
this Section 5.03 shall constitute complete and indefeasible evidence of
ownership in the Trust Fund, as if originally issued, whether or not the lost,
stolen or destroyed Certificate shall be found at any time.
Section 5.04 PERSONS DEEMED OWNERS.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Paying Agent, the Certificate Registrar or the
Trustee and any agent of the Depositor, the Paying Agent, the Certificate
Registrar or the Trustee may treat the Person in whose name any Certificate is
registered as the owner of such Certificate for the purpose of receiving
distributions pursuant to Section 6.01 and for all other purposes whatsoever.
None of the Depositor, the Paying Agent, the Certificate Registrar or the
Trustee or any agent of the Depositor, the Paying Agent, the Certificate
Registrar or the Trustee shall be affected by notice to the contrary. No
Certificate shall be deemed duly presented for a transfer effective on any
Record Date unless the Certificate to be transferred is presented no later than
the close of business on the third Business Day preceding such Record Date.
Section 5.05 TRANSFER RESTRICTIONS ON RESIDUAL CERTIFICATES.
(a) Residual Certificates, or interests therein, may not be transferred
without the prior express written consent of the Tax Matters Person and the
Depositor. As a prerequisite to such consent, (1) the proposed transferee must
provide the Tax Matters Person, the Depositor, the Certificate Registrar and the
Trustee with an affidavit that the proposed transferee is a Permitted Transferee
(and an affidavit that it is a United States Person), and (2) the proposed
transferor must provide the Tax Matters Person, the Depositor, the Certificate
Registrar and the Trustee with a certificate to the effect that it has no
knowledge that the statements made by the proposed transferee in any such
affidavit are false, each as provided in Subsection 5.05(b).
(b) No transfer, sale or other disposition of a Residual Certificate
(including a beneficial interest therein) may be made unless, prior to the
transfer, sale or other disposition of a Residual Certificate, the proposed
transferee (including the initial purchasers thereof) delivers to the Tax
Matters Person, the Trustee, the Certificate Registrar and the Depositor an
affidavit in the form attached hereto as Exhibit E stating, among other things,
that as of the date of such transfer (i) such transferee is a Permitted
Transferee and that (ii) such transferee is not acquiring such Residual
Certificate for the account of any Person who is not a Permitted Transferee, and
(2) the proposed transferor delivers to the Tax Matters Person, the Trustee, the
Certificate Registrar and the Depositor a certificate to the effect that it has
no knowledge that the statements made by the proposed transferee in any such
affidavit are false. The Tax Matters Person shall not consent to a transfer of a
Residual Certificate if it has actual knowledge that any statement made in the
affidavit issued pursuant to the preceding sentence is not true. Notwithstanding
any transfer, sale or other disposition of a Residual Certificate to any Person
who is not a Permitted Transferee or a United States Person, such transfer, sale
or other disposition shall be deemed to be of no legal force or effect
whatsoever and such Person shall not be deemed to be a Holder of a Residual
Certificate for any purpose hereunder, including, but not limited to, the
receipt of distributions thereon. If any purported transfer shall be in
violation of the provisions of this Subsection 5.05(b), then the prior Holder
thereof shall, upon discovery that the transfer of such Residual Certificate was
not in fact permitted by this Subsection 5.05(b), be restored to all rights and
obligations as a Holder thereof retroactive to the date of the purported
transfer. None of the Trustee, the Certificate Registrar, the Tax Matters Person
or the Depositor shall be under any liability to any Person for any registration
or transfer of a Residual Certificate that is not permitted by this Subsection
5.05(b) or for making payments due on such Residual Certificate to the purported
Holder thereof or taking any other action with respect to such purported Holder
under the provisions of this Agreement so long as the written affidavit referred
to above was received with respect to such transfer, and the Tax Matters Person,
the Trustee, the Certificate Registrar and the Depositor, as applicable, had no
knowledge that it was untrue. The prior Holder shall be entitled to recover from
any purported Holder of a Residual Certificate that was in fact not a Permitted
Transferee or a United States Person under this Subsection 5.05(b) at the time
it became a Holder all payments made on such Residual Certificate. Each Holder
of a Residual Certificate, by acceptance thereof, shall be deemed for all
purposes to have consented to the provisions of this Subsection 5.05(b) and to
any amendment of this Agreement deemed necessary (whether as a result of new
legislation or otherwise) by counsel of the Tax Matters Person or the Depositor
to ensure that the Residual Certificates are not transferred to any Person who
is not a Permitted Transferee or a United States Person and that any transfer of
such Residual Certificates will not cause the imposition of a tax upon the Trust
or cause any REMIC to fail to qualify as a REMIC.
(c) The Residual Certificates (including a beneficial interest therein)
may not be purchased by or transferred to any Person who is not a United States
Person.
(d) By accepting a Residual Certificate, the purchaser thereof agrees
to be a Tax Matters Person, and appoints the Securities Administrator to act as
its agent with respect to all matters concerning the tax obligations of the
Trust.
Section 5.06 RESTRICTIONS ON TRANSFERABILITY OF NON-OFFERED
CERTIFICATES.
(a) No offer, sale, transfer or other disposition (including pledge) of
any Non-Offered Certificate shall be made by any Holder thereof unless
registered under the Securities Act, or an exemption from the registration
requirements of the Securities Act and any applicable state securities or "Blue
Sky" laws is available and the prospective transferee (other than the Depositor)
of such Certificate signs and delivers to the Certificate Registrar an
Investment Letter, if the transferee is an Institutional Accredited Investor, in
the form set forth as Exhibit F-l hereto, or a Rule 144A Certificate, if the
transferee is a QIB, in the form set forth as Exhibit F-2 hereto.
Notwithstanding the provisions of the immediately preceding sentence, no
restrictions shall apply with respect to the transfer or registration of
transfer of a beneficial interest in any Non-Offered Certificate that is a
Global Certificate of a Class to a transferee that takes delivery in the form of
a beneficial interest in the Global Certificate of such Class provided that each
such transferee shall be deemed to have made such representations and warranties
contained in the Rule 144A Certificate as are sufficient to establish that it is
a QIB. In the case of a proposed transfer of any Certificate to a transferee
other than a QIB, the Certificate Registrar may require an Opinion of Counsel
addressed to the Certificate Registrar that such transaction is exempt from the
registration requirements of the Securities Act. The cost of such opinion shall
not be an expense of the Certificate Registrar or the Trust Fund.
(b) The Non-Offered Certificates shall each bear a Securities Legend.
Section 5.07 ERISA RESTRICTIONS.
(a) Subject to the provisions of subsection (b), no Residual
Certificates or Non-Offered Certificates may be acquired directly or indirectly
by, or on behalf of, an employee benefit plan or other retirement arrangement
which is subject to Title I of ERISA or Section 4975 of the Code, unless the
proposed transferee provides either (i) the Certificate Registrar, with an
Opinion of Counsel addressed to the Depositor, the Trustee, the Certificate
Registrar, the Master Servicer and the Securities Administrator (upon which they
may rely) which is satisfactory to the Certificate Registrar, which opinion will
not be at the expense of the Depositor, the Trustee, the Certificate Registrar,
the Master Servicer or the Securities Administrator, that the purchase of such
Certificates by or on behalf of such Plan is permissible under applicable law,
will not constitute or result in a nonexempt prohibited transaction under ERISA
or Section 4975 of the Code and will not subject the Depositor, the Master
Servicer, the Certificate Registrar, the Securities Administrator or the Trustee
to any obligation in addition to those undertaken in the Agreement or (ii) in
the case of the Non-Offered Certificates, a representation or certification to
the Certificate Registrar (upon which the Trustee, the Certificate Registrar and
the other parties hereto are authorized to rely) to the effect that the proposed
transfer and holding of such a Certificate and the servicing, management and
operation of the Trust: (I) will not result in a prohibited transaction under
Section 406 of ERISA or Section 4975 of the Code which is not covered under an
individual or class prohibited transaction exemption including but not limited
to Department of Labor Prohibited Transaction Exemption ("PTE") 84-14 (Class
Exemption for Plan Asset Transactions Determined by Independent Qualified
Professional Asset Managers); PTE 91-38 (Class Exemption for Certain
Transactions Involving Bank Collective Investment Funds); PTE 90-1 (Class
Exemption for Certain Transactions Involving Insurance Company Pooled Separate
Accounts), PTE 95-60 (Class Exemption for Certain Transactions Involving
Insurance Company General Accounts), and PTCE 96-23 (Class Exemption for Plan
Asset Transactions Determined by In-House Asset Managers and (II) will not
subject the Depositor, the Securities Administrator, the Certificate Registrar,
the Master Servicer or the Trustee to any obligation in addition to those
undertaken in the Agreement.
(b) Any Person acquiring an interest in a Global Certificate which is a
Non-Offered Certificate, by acquisition of such Certificate, shall be deemed to
have represented to the Certificate Registrar that in the case of the
Non-Offered Certificates, either: (i) it is not acquiring an interest in such
Certificate directly or indirectly by, or on behalf of, an employee benefit plan
or other retirement arrangement which is subject to Title I of ERISA or Section
4975 of the Code, or (ii) the transfer and holding of an interest in such
Certificate to that Person and the subsequent servicing, management and
operation of the Trust and its assets: (I) will not result in any prohibited
transaction which is not covered under an individual or class prohibited
transaction exemption, including, but not limited to, ▇▇▇ ▇▇-▇▇, ▇▇▇ ▇▇-▇▇, ▇▇▇
▇▇-▇, ▇▇▇ 95-60 or PTE 96-23 and (II) will not subject the Depositor, the
Securities Administrator, the Certificate Registrar, the Master Servicer or the
Trustee to any obligation in addition to those undertaken in the Agreement.
(c) Each beneficial owner of a Class I-B-1, Class I-B-2, Class I-B-3,
Class II-B-1, Class II-B-2 or Class II-B-3 Certificate or any interest therein
shall be deemed to have represented, by virtue of its acquisition or holding of
that certificate or interest therein, that either (i) it is not a Plan or
investing with "Plan Assets", (ii) it has acquired and is holding such
certificate in reliance on Prohibited Transaction Exemption 90-30, as amended
from time to time (the "Exemption"), and that it understands that there are
certain conditions to the availability of the Exemption, including that the
certificate must be rated, at the time of purchase, not lower than "BBB-" (or
its equivalent) by S&P, Fitch or ▇▇▇▇▇'▇ Investors Service, Inc., and the
certificate is so rated or (iii) (1) it is an insurance company, (2) the source
of funds used to acquire or hold the certificate or interest therein is an
"insurance company general account," as such term is defined in Prohibited
Transaction Class Exemption ("PTCE") 95-60, and (3) the conditions in Sections I
and III of PTCE 95-60 have been satisfied.
(d) Neither the Trustee, the Certificate Registrar, the Master Servicer
nor the Securities Administrator will be required to monitor, determine or
inquire as to compliance with the transfer restrictions in this Agreement with
respect to the Book-Entry Certificates. Any attempted or purported transfer of
any Certificate in violation of the provisions of this Agreement shall be void
ab initio and such Certificate shall be considered to have been held
continuously by the prior permitted Certificateholder. Any transferor of any
Certificate in violation of such provisions, shall indemnify and hold harmless
the Trustee, the Certificate Registrar, the Securities Administrator and the
Master Servicer from and against any and all liabilities, claims, costs or
expenses incurred by the Trustee, the Certificate Registrar, the Securities
Administrator or the Master Servicer as a result of such attempted or purported
transfer. Neither the Trustee nor the Certificate Registrar shall be liable for
transfer of any such Book-Entry Certificates in or through book-entry facilities
of any Depository or between or among Depository Participants or Certificate
Owners made in violation of the transfer restrictions set forth herein.
Section 5.08 RULE 144A INFORMATION.
For so long as any Non-Offered Certificates are outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3) of the Securities
Act, (1) the Depositor will provide or cause to be provided to any holder of
such Non-Offered Certificates and any prospective purchaser thereof designated
by such a holder, upon the request of such holder or prospective purchaser, the
information required to be provided to such holder or prospective purchaser by
Rule 144A(d)(4) under the Securities Act; and (2) the Depositor shall update
such information from time to time in order to prevent such information from
becoming false and misleading and will take such other actions as are necessary
to ensure that the safe harbor exemption from the registration requirements of
the Securities Act under Rule 144A is and will be available for resales of such
Certificates conducted in accordance with Rule 144A.
Section 5.09 APPOINTMENT OF PAYING AGENT AND CERTIFICATE REGISTRAR.
▇▇▇▇▇ Fargo Bank, National Association, as Securities Administrator,
shall act as the initial Paying Agent and Certificate Registrar for so long as
it is also the Master Servicer. Each of the Paying Agent and the Certificate
Registrar may resign upon thirty (30) days' prior written notice to the Trustee;
provided that no such resignation shall be effective until the appointment of a
successor paying agent or certificate registrar. In the event the Paying Agent
and/or the Certificate Registrar resigns or is removed by the Trustee for cause,
the Trustee may appoint a successor paying agent or certificate registrar, as
applicable. The Trustee shall cause such successor paying agent, if other than
the Trustee or the Master Servicer or the Securities Administrator, to execute
and deliver to the Trustee an instrument in which such paying agent shall agree
with the Trustee that such paying agent will hold all sums held by it for the
payment to Certificateholders in trust for the benefit of the Certificateholders
entitled thereto until such sums have been paid to the Certificateholders.
ARTICLE VI
Payments to Certificateholders
Section 6.01 DISTRIBUTIONS ON THE CERTIFICATES.
(a) Interest and principal (as applicable) on the Certificates (other
than the Residual Certificates) will be distributed by the Paying Agent monthly
on each Distribution Date based on the Certificates Distribution Report for such
Distribution Date furnished by the Securities Administrator pursuant to 6.05
hereof, commencing in January 2006, in an amount equal to the related Available
Funds on deposit in the Distribution Account for such Distribution Date. In
addition, on the Distribution Date occurring in January 2006, the Class I-R
Deposit will be distributed to the Holders of the Class I-R Certificates, pro
rata, and the Class II-R Deposit will be distributed to the Holders of the Class
II-R-1 Certificates. On each Distribution Date, the related Available Funds on
deposit in the Distribution Account shall be distributed as follows:
(I) DISTRIBUTIONS ON THE GROUP I CERTIFICATES:
On each Distribution Date, the Group I Available Funds will be
distributed as follows:
(i) on each Distribution Date, the Group I Available Funds
will be distributed to the Group I Senior Certificates as follows:
FIRST, to the Group I Senior Certificates (other than the
Class I-PO Certificates), on a pro rata basis, the Accrued Certificate
Interest on such Classes for such Distribution Date;
SECOND, to the Group I Senior Certificates (other than the
Class I-PO Certificates), on a pro rata basis, any Accrued Certificate
Interest thereon remaining undistributed from previous Distribution
Dates, to the extent of remaining Group I Available Funds;
THIRD, concurrently as follows:
(I) to the extent of the remaining Group I Available
Funds related to Subgroup I-1, to the Class I-A-1
Certificates, as principal, the Subgroup I-1
Principal Distribution Amount, in the order described
in this Agreement, in reduction of the Current
Principal Amount thereof, until the Current Principal
Amount thereof has been reduced to zero;
(II) to the extent of the remaining Group I Available
Funds related to Subgroup I-2, to the Class I-A-2
Certificates, as principal, the Subgroup I-2
Principal Distribution Amount, in the order described
in this Agreement, in reduction of the Current
Principal Amount thereof, until the Current Principal
Amount thereof has been reduced to zero; and
(III) to the extent of the remaining Group I Available
Funds related to Subgroup I-3, to the Class I-A-3
Certificates, as principal, the Subgroup I-3
Principal Distribution Amount, in the order described
in this Agreement, in reduction of the Current
Principal Amount thereof, until the Current Principal
Amount thereof has been reduced to zero;
FOURTH, to the Class I-PO Certificates, the Class I-PO
Certificate Principal Distribution Amount for such Distribution Date to
the extent of the remaining Group I Available Funds, until the Current
Principal Amount thereof has been reduced to zero; and
FIFTH, to the Class I-PO Certificates, the Class I-PO
Certificate Deferred Amount, provided that, (i) on any Distribution
Date, distributions pursuant to this priority FIFTH shall not exceed
the excess, if any, of (x) Group I Available Funds remaining after
giving effect to distributions pursuant to priorities FIRST through
FOURTH above over (y) the sum of the amount of Accrued Certificate
Interest for such Distribution Date and Accrued Certificate Interest
remaining undistributed from previous Distribution Dates on all Classes
of Group I Subordinate Certificates then outstanding, (ii) such
distributions shall not reduce the Current Principal Amount of the
Class I-PO Certificates, and (iii) no distribution will be made in
respect of the Class I-PO Certificate Deferred Amount on or after the
Group I Cross-Over Date.
(ii) Except as described in paragraphs (iii) and (iv) below,
on each Distribution Date prior to the Group I Cross-Over Date, an amount equal
to the remaining Group I Available Funds after the distributions in clause (i)
above shall be distributed sequentially in the following order, to the Class
I-XB, I-B-1, Class I-B-2, Class I-B-3, Class I-B-4, Class I-B-5 and Class I-B-6
Certificates, in each case up to an amount equal to and in the following order:
(a) the Accrued Certificate Interest thereon for such Distribution Date, (b) any
Accrued Certificate Interest thereon remaining undistributed from previous
Distribution Dates and (c) such Class's Group I Allocable Share for such
Distribution Date (other than the Class I-XB Certificates), in each case, to the
extent of the remaining Group I Available Funds.
(iii) On each Distribution Date prior to the Group I
Cross-Over Date but after the reduction of the Current Principal Amounts of all
of the Group I Senior Certificates related to a Subgroup to zero, the remaining
Class or Classes of Group I Senior Certificates in the remaining Subgroups
(other than the Class I-X Certificates and Class I-PO Certificates) will be
entitled to receive in reduction of their Current Principal Amounts, pro rata
based upon their Current Principal Amounts immediately prior to such
Distribution Date, in addition to any Principal Prepayments related to such
remaining Group I Senior Certificates' respective Subgroup allocated to such
Group I Senior Certificates, 100% of the Principal Prepayments on any Mortgage
Loan in the Subgroup or Subgroups relating to the Class or Classes of Group I
Senior Certificates of the fully repaid Subgroup; provided, however, if (A) the
weighted average of the Subgroup Subordinate Percentages on such Distribution
Date equals or exceeds two times the initial weighted average of the Subgroup
Subordinate Percentages and (B) the aggregate Scheduled Principal Balance of the
Mortgage Loans in Loan Group I delinquent 60 days or more (including for this
purpose any such Mortgage Loans in foreclosure and bankruptcy and Mortgage Loans
with respect to which the related mortgaged property has been acquired by the
trust), averaged over the last six months, as a percentage of the aggregate
Current Principal Amount of the Group I Subordinate Certificates does not exceed
50%, then the additional allocation of Principal Prepayments to the Subgroup I-1
Certificates, Subgroup I-2 Certificates and Subgroup I-3 Certificates in
accordance with this paragraph (iii) will not be made and 100% of the Principal
Prepayments on any Mortgage Loan in Loan Group I relating to the fully repaid
Class or Classes of Group I Senior Certificates will be allocated to the Group I
Subordinate Certificates.
(iv) If on any Distribution Date on which the aggregate
Current Principal Amount of the Subgroup I-1 Certificates, Subgroup I-2
Certificates and Subgroup I-3 Certificates would be greater than the aggregate
Scheduled Principal Balance of the Mortgage Loans in its related Subgroup and
any Group I Subordinate Certificates are still outstanding, in each case, after
giving effect to distributions to be made on such Distribution Date, (i) 100% of
amounts otherwise allocable to the Group I Subordinate Certificates in respect
of principal will be distributed to the Subgroup I-1 Certificates, Subgroup I-2
Certificates and Subgroup I-3 Certificates (other than the Class I-X
Certificates and Class I-PO Certificates), pro rata, based upon their Current
Principal Amounts immediately prior to such Distribution Date, in reduction of
the Current Principal Amounts thereof, until the aggregate Current Principal
Amount of the Subgroup I-1 Certificates, Subgroup I-2 Certificates and Subgroup
I-3 Certificates, as applicable, is equal to the aggregate Scheduled Principal
Balance of the Mortgage Loans in its related Subgroup, and (ii) the Accrued
Certificate Interest otherwise allocable to the Group I Subordinate Certificates
on such Distribution Date will be reduced, if necessary, and distributed to such
class or classes of Group I Senior Certificates in an amount equal to the
Accrued Certificate Interest for such Distribution Date on the excess of (x) the
aggregate Current Principal Amount of the Subgroup I-1 Certificates, Subgroup
I-2 Certificates and Subgroup I-3 Certificates (other than the Class I-X, Class
I-XB and Class I-PO Certificates), as applicable, over (y) the aggregate
Scheduled Principal Balance of the Mortgage Loans in the related Subgroup. Any
such reduction in the Accrued Certificate Interest on the Group I Subordinate
Certificates will be allocated in reverse order of the Group I Subordinate
Certificates' numerical designations, commencing with the Class I-B-6
Certificates.
(v) If, after distributions have been made pursuant to
priorities FIRST and SECOND of clause (i) above on any Distribution Date, the
remaining Group I Available Funds related to Subgroup I-1 is less than the sum
of the Subgroup I-1 Principal Distribution Amount and Class I-PO Certificate
Principal Distribution Amount, or the remaining Group I Available Funds related
to Subgroup I-2 is less than the Subgroup I-2 Principal Distribution Amount, or
the remaining Group I Available Funds related to Subgroup I-3 is less than the
Subgroup I-3 Principal Distribution Amount, such amounts shall be reduced, and
such remaining funds will be distributed to the related Group I Senior
Certificates (other than the Class I-X Certificates) on the basis of such
reduced amounts. Notwithstanding any reduction in principal distributable to the
Class I-PO Certificates pursuant to this paragraph, the principal balance of the
Class I-PO Certificates shall be reduced not only by principal so distributed
but also by the Class I-PO Certificate Cash Shortfall. The Class I-PO
Certificate Cash Shortfall for the Class I-PO Certificates with respect to any
Distribution Date will be added to the Class I-PO Certificate Deferred Amount.
On each Distribution Date, any Group I Available Funds remaining after
payment of interest and principal to the Classes of Certificates entitled
thereto, in each case as described above, will be distributed to the Class I-R-1
Certificates; provided that, if on any Distribution Date there are any Group I
Available Funds remaining after payment of interest and principal to a Class or
Classes of Certificates entitled thereto, such amounts will be distributed to
the other Classes of Group I Senior Certificates, pro rata, based upon their
Current Principal Amounts, until all amounts due to all Classes of Group I
Senior Certificates have been paid in full, before any amounts are distributed
to the Class I-R-1 Certificates.
(II) DISTRIBUTIONS ON THE GROUP II CERTIFICATES:
On each Distribution Date, distributions to the holders of the Group II
Certificates will be made from the Group II Available Funds as follows:
(i) on each Distribution Date, the Group II Available Funds
will be distributed to the Group II Senior Certificates as follows:
FIRST, to the Group II Senior Certificates (other than the
Class II-PO Certificates), on a pro rata basis, the Accrued Certificate
Interest on such Classes for such Distribution Date;
SECOND, to the Group II Senior Certificates (other than the
Class II-PO Certificates), on a pro rata basis, any Accrued Certificate
Interest thereon remaining undistributed from previous Distribution
Dates, to the extent of remaining Group II Available Funds;
THIRD, to the Class II-A-1, Class II-A-2, Class II-A-3 and
Class II-A-4 Certificates, on a pro rata basis, as principal, the Group
II Senior Optimal Principal Amount for such Distribution Date to the
extent of the remaining Group II Available Funds until the Current
Principal Amount of each such Class has been reduced to zero;
FOURTH, to the Class II-PO Certificates, the Class II-PO
Certificate Principal Distribution Amount for such Distribution Date to
the extent of the remaining Group II Available Funds, until the Current
Principal Amount thereof has been reduced to zero; and
FIFTH, to the Class II-PO Certificates, the Class II-PO
Certificate Deferred Amount; provided that, (i) on any Distribution
Date, distributions pursuant to this priority FIFTH shall not exceed
the excess, if any, of (x) Group II Available Funds remaining after
giving effect to distributions pursuant to priorities FIRST through
FOURTH above over (y) the sum of the amount of Accrued Certificate
Interest for such Distribution Date and Accrued Certificate Interest
remaining undistributed from previous Distribution Dates on all classes
of Group II Subordinate Certificates then outstanding, (ii) such
distributions shall not reduce the Current Principal Amount of the
Class II-PO Certificates, and (iii) no distribution will be made in
respect of the Class II-PO Certificate Deferred Amount on or after the
Group II Cross-Over Date.
(ii) On each Distribution Date prior to the Group II
Cross-Over Date, an amount equal to the remaining Group II Available Funds after
the distributions in clause (i) above will be distributed sequentially in the
following order, to the Class II-B-1, Class II-B-2, Class II-B-3, Class II-B-4,
Class II-B-5 and Class II-B-6 Certificates, in each case up to an amount equal
to and in the following order: (a) the Accrued Certificate Interest thereon for
such Distribution Date, (b) any Accrued Certificate Interest thereon remaining
undistributed from previous Distribution Dates and (c) such Class's Group II
Allocable Share for such Distribution Date, in each case, to the extent of the
remaining Group II Available Funds.
(iii) If, after distributions have been made pursuant to
priorities FIRST and SECOND of clause (i) above on any Distribution Date, the
remaining Group II Available Funds are less than the Group II Senior Optimal
Principal Amount and Class II-PO Certificate Principal Distribution Amount, such
amounts shall be reduced, and such remaining funds will be distributed to the
Group II Senior Certificates (other than the Class II-X Certificates) on the
basis of such reduced amounts. Notwithstanding any reduction in principal
distributable to the Class II-PO Certificates pursuant to this paragraph, the
Current Principal Amount of the Class II-PO Certificates shall be reduced not
only by principal so distributed but also by the Class II-PO Certificate Cash
Shortfall. The Class II-PO Certificate Cash Shortfall for the Class II-PO
Certificates with respect to any Distribution Date will be added to the Class
II-PO Certificate Deferred Amount.
(iv) On or after the occurrence of the Group II Cross-Over
Date, all priorities relating to distributions as described above in respect of
principal among the various classes of related Senior Certificates (other than
the Class II-PO Certificates) will be disregarded, and the remaining Group II
Available Funds will be distributed to such Certificates (other than the Class
II-PO Certificates) pro rata in accordance with their respective outstanding
Certificate Principal Balances and an amount equal to the Class II-PO
Certificate Principal Distribution Amount will be distributed to the Class II-PO
Certificates.
On each Distribution Date, any Group II Available Funds remaining after
payment of interest and principal to the Classes of Certificates entitled
thereto, in each case as described above, will be distributed to the Class
II-R-1 Certificates; provided, that if on any Distribution Date there are any
Group II Available Funds remaining after payment of interest and principal to a
Class or Classes of Certificates entitled thereto, such amounts will be
distributed to the other Class or Classes of Group II Senior Certificates, pro
rata, based upon their Current Principal Amounts, until all amounts due to all
Classes of Group II Senior Certificates have been paid in full, before any
amounts are distributed to the Class II-R-1 Certificates.
(b) "Pro rata" distributions among Classes of Certificates will be made
in proportion to the then Current Principal Amount of such Classes.
(c) No Accrued Certificate Interest will be payable with respect to any
Class of Certificates after the Distribution Date on which the Current Principal
Amount or Notional Amount of such Certificate has been reduced to zero.
(d) If on any Distribution Date the Available Funds for the related
Senior Certificates is less than the Accrued Certificate Interest on the related
Senior Certificates for such Distribution Date prior to reduction for Net
Interest Shortfalls and the interest portion of Realized Losses, the shortfall
will be allocated among the Holders of each Class of the related Senior
Certificates (other than the Class I-PO Certificates and Class II-PO
Certificates) in proportion to the respective amounts of Accrued Certificate
Interest that would have been allocated thereto in the absence of such Net
Interest Shortfalls and/or Realized Losses for such Distribution Date. In
addition, the amount of any interest shortfalls will constitute unpaid Accrued
Certificate Interest and will be distributable to Holders of the Certificates of
the related Classes entitled to such amounts on subsequent Distribution Dates,
to the extent of the applicable Available Funds after current interest
distributions as required herein. Any such amounts so carried forward will not
bear interest. Shortfalls in interest payments will not be offset by a reduction
in the servicing compensation of the Master Servicer or otherwise, except to the
extent of applicable Compensating Interest Payments.
(e) The expenses and fees of the Trust shall be paid by each of the
REMICs, to the extent that such expenses relate to the assets of each of such
respective REMICs, and all other expenses and fees of the Trust shall be paid
pro rata by each of the REMICs.
(f) (i) On each Distribution Date, an amount, up to the amount of the
Subgroup I-1 Principal Distribution Amount for that Distribution Date, will be
distributed will be distributed as principal, to the Class I-A-1 Certificates,
in reduction of the Current Principal Amount thereof, until the Current
Principal Amount thereof has been reduced to zero.
(ii) On each Distribution Date, an amount, up to the amount of
the Subgroup I-2 Principal Distribution Amount for that Distribution Date, will
be distributed as principal, to the Class I-A-2 Certificates, in reduction of
the Current Principal Amount thereof, until the Current Principal Amount thereof
has been reduced to zero.
(iii) On each Distribution Date, an amount, up to the amount
of the Subgroup I-3 Principal Distribution Amount for that Distribution Date,
will be distributed as principal, to the Class I-A-3 Certificates, in reduction
of the Current Principal Amount thereof, until the Current Principal Amount
thereof has been reduced to zero.
(g) Distributions in reduction of the Current Principal Amount of the
Group II Senior Certificates (other than the Class II-X Certificates) shall be
made on each Distribution Date pursuant to priority THIRD through FIFTH above of
clause (a)(i). In accordance with such priority THIRD, the Group II Available
Funds remaining after the distribution of interest on the Group II Senior
Certificates will be allocated to such Certificates (other than the Class II-X
Certificates and Class II-PO Certificates) in an aggregate amount as follows:
On each Distribution Date prior to the Group II Cross-Over Date, an
amount, up to the amount of the Group II Senior Optimal Principal Amount for
that Distribution Date, will be distributed as principal in the following order
of priority:
(1) to Class II-A-3 Certificates and Class II-A-4 Certificates,
the Lockout Priority Amount for such Distribution Date, pro
rata, in reduction of the Current Principal Amounts thereof,
until the Current Principal Amounts thereof have reduced to
zero;
(2) to the Class II-A-1 Certificates, in reduction of the Current
Principal Amount thereof, until the Current Principal Amount
thereof has been reduced to the zero;
(3) to the Class II-A-2 Certificates, in reduction of the Current
Principal Amount thereof, until the Current Principal Amount
thereof has been reduced to zero; and
(4) to Class II-A-3 Certificates and Class II-A-4 Certificates,
pro rata, in reduction of the Current Principal Amounts
thereof (without regard to the Lockout Priority Amount for
such Distribution Date), until the Current Principal Amounts
thereof have been reduced to zero.
(h) In addition, in the event that the Master Servicer receives any
Subsequent Recoveries from a Servicer, the Master Servicer shall deposit such
funds into the Master Servicer Collection Account pursuant to Section 4.02. If,
after taking into account such Subsequent Recoveries, the amount of a Realized
Loss is reduced, the amount of such Subsequent Recoveries will be applied to
increase the Current Principal Amount of the related Class of Subordinate
Certificates with the highest payment priority to which Realized Losses have
been allocated, but not by more than the amount of Realized Losses previously
allocated to that Class of Subordinate Certificates pursuant to Section 6.03.
The amount of any remaining Subsequent Recoveries will be applied to
sequentially increase the Current Principal Amount of the related Subordinate
Certificates, beginning with the Class of such Subordinate Certificates with the
next highest payment priority, up to the amount of such Realized Losses
previously allocated to such Class of Certificates pursuant to Section 6.03.
Holders of such Certificates will not be entitled to any payment in respect of
current interest on the amount of such increases for any Interest Accrual Period
preceding the Distribution Date on which such increase occurs. Any such
increases shall be applied to the Current Principal Amount of each Subordinate
Certificate of such Class in accordance with its respective Fractional Undivided
Interest.
Section 6.02 [Reserved.]
Section 6.03 ALLOCATION OF LOSSES.
On or prior to each Determination Date, the Master Servicer shall
determine the amount of any Realized Loss in respect of each Mortgage Loan that
occurred during the immediately preceding calendar month, based on information
provided by the related Servicer.
(a) GROUP I CERTIFICATES
(i) Realized Losses with respect to a Group I Mortgage Loan
will be allocated on a pro rata basis between the related PO Percentage of the
Scheduled Principal Balance of such Group I Mortgage Loan and the related Non-PO
Percentage of such Scheduled Principal Balance.
(ii) On each Distribution Date, the related PO Percentage of
the principal portion of any Realized Loss on a Discount Mortgage Loan in Loan
Group I and any Class I-PO Certificate Cash Shortfall will be allocated to the
Class I-PO Certificates until the Current Principal Amount of the Class I-PO
Certificates is reduced to zero. To the extent funds are available therefor on
any Distribution Date through the Group I Cross-Over Date, distributions in
respect of the Class I-PO Certificate Deferred Amount for the Class I-PO
Certificates will be made in accordance with priority FIFTH of clause (i) above.
No interest shall accrue on the Class I-PO Certificate Deferred Amount. On each
Distribution Date through the Group I Cross-Over Date, the Current Principal
Amount of the lowest ranking Class of Group I Subordinate Certificates then
outstanding will be reduced by the amount of any distributions in respect of any
Class I-PO Certificate Deferred Amount on such Distribution Date in accordance
with the priorities set forth above, through the operation of the Group I
Subordinate Certificate Writedown Amount. After the Group I Cross-Over Date, no
more distributions will be made in respect of, and applicable Realized Losses
and Class I-PO Certificate Cash Shortfalls allocable to the Class I-PO
Certificates will not be added to, the Class I-PO Certificate Deferred Amount.
(iii) The related Non-PO Percentage of the principal portion
of Realized Losses (other than Excess Losses) on the Group I Mortgage Loans will
be allocated on any Distribution Date as follows: first, to the Class I-B-6
Certificates; second, to the Class I-B-5 Certificates; third, to the Class I-B-4
Certificates; fourth, to the Class I-B-3 Certificates; fifth, to the Class I-B-2
Certificates; and sixth, to the Class I-B-1 Certificates, in each case until the
Current Principal Amount of such Class has been reduced to zero. Thereafter, the
principal portion of Realized Losses on the Group I Mortgage Loans will be
allocated on any Distribution Date to the outstanding Class or Classes of Group
I Senior Certificates (other than the Class I-X Certificates), pro rata, based
upon their respective Current Principal Amounts. The applicable Non-PO
Percentage of the principal portion of any Excess Loss with respect to Group I
Mortgage Loans for any Distribution Date will be allocated pro rata among all
outstanding Classes of Group I Certificates (other than the Class I-PO, Class
I-XB the Class I-X Certificates) based on their Current Principal Amounts.
(iv) Notwithstanding the foregoing, no such allocation of any
Realized Loss shall be made on a Distribution Date to any Class of Group I
Certificates (other than the Class I-X Certificates and Class I-XB Certificates)
to the extent that such allocation would result in the reduction of the
aggregate Current Principal Amounts of all the Group I Certificates (other than
the Class I-X Certificates and Class I-XB Certificates) as of such Distribution
Date, after giving effect to all distributions and prior allocations of Realized
Losses on the Group I Mortgage Loans on such date, to an amount less than the
aggregate Scheduled Principal Balance of all of the Group I Mortgage Loans as of
the first day of the month of such Distribution Date (such limitation, the
"Group I Loss Allocation Limit").
(b) GROUP II CERTIFICATES
(i) Realized Losses with respect to a Group II Mortgage Loan
will be allocated on a pro rata basis between the related PO Percentage of the
Scheduled Principal Balance of such Group II Mortgage Loan and the related
Non-PO Percentage of such Scheduled Principal Balance.
(ii) On each Distribution Date, the related PO Percentage of
the principal portion of any Realized Loss on a Discount Mortgage Loan in Loan
Group II and any Class II-PO Certificate Cash Shortfall will be allocated to the
Class II-PO Certificates until the Current Principal Amount of the Class II-PO
Certificates is reduced to zero. To the extent funds are available therefor on
any Distribution Date through the Group II Cross-Over Date, distributions in
respect of the Class II-PO Certificate Deferred Amount for the Class II-PO
Certificates will be made in accordance with priority FIFTH of clause (i) above.
No interest shall accrue on the Class II-PO Certificate Deferred Amount. On each
Distribution Date through the Group II Cross-Over Date, the Current Principal
Amount of the lowest ranking Class of Group II Subordinate Certificates then
outstanding will be reduced by the amount of any distributions in respect of any
Class II-PO Certificate Deferred Amount on such Distribution Date in accordance
with the priorities set forth above, through the operation of the Group II
Subordinate Certificate Writedown Amount. After the Group II Cross-Over Date, no
more distributions will be made in respect of, and applicable Realized Losses
and Class II-PO Certificate Cash Shortfalls allocable to the Class II-PO
Certificates will not be added to, the Class II-PO Certificate Deferred Amount.
(iii) The related Non-PO Percentage of the principal portion
of Realized Losses (other than Excess Losses) on the Group II Mortgage Loans
shall be allocated on any Distribution Date as follows: first, to the Class
II-B-6 Certificates; second, to the Class II-B-5 Certificates; third, to the
Class II-B-4 Certificates; fourth, to the Class II-B-3 Certificates; fifth, to
the Class II-B-2 Certificates; and sixth, to the Class II-B-1 Certificates, in
each case until the Current Principal Amount of such Class has been reduced to
zero. Thereafter, the principal portion of Realized Losses on the Group II
Mortgage Loans will be allocated on any Distribution Date to the outstanding
Class or Classes of Group II Certificates (other than the Class II-X
Certificates), pro rata, based upon their respective Current Principal Amounts;
provided, however, the amount of any Realized Losses otherwise allocable to the
Class II-A-3 Certificates shall be allocated to the Class II-A-4 Certificates,
until the Current Principal Amount thereof has been reduced to zero, and then to
the Class II-A-3 Certificates. The principal portion of any Excess Loss with
respect to Group II Mortgage Loans for any Distribution Date will be allocated
pro rata among all outstanding Classes of Group II Certificates (other than the
Class II-XB Certificates) based on their Current Principal Amounts.
(iv) No reduction of the Current Principal Amount of any Class
of a Group II Certificate (other than the Class II-X Certificates) shall be made
on any Distribution Date on account of Realized Losses to the extent that such
reduction would have the effect of reducing the aggregate Current Principal
Amount of all of the Classes of such Group II Certificates as of such
Distribution Date to an amount less than the aggregate Scheduled Principal
Balance of the Group II Mortgage Loans as of the related Due Date. This
limitation is referred to herein as the "Group II Loss Allocation Limit."
(c) Any Realized Losses allocated to a Class of Certificates shall be
allocated among the related Certificates of such Class (other than the Interest
Only Certificates) in proportion to their respective Current Principal Amounts.
Any allocation of Realized Losses shall be accomplished by reducing the Current
Principal Amount of the related Certificates on the related Distribution Date.
(d) Realized Losses shall be allocated on the Distribution Date in the
month following the month in which such loss was incurred and, in the case of
the principal portion thereof, after giving effect to distributions made on such
Distribution Date.
(e) On each Distribution Date, the Securities Administrator shall
determine and notify the Paying Agent in writing of the Group I Subordinate
Certificate Writedown Amount. Any Group I Subordinate Certificate Writedown
Amount shall effect a corresponding reduction in the Current Principal Amount of
(i) if prior to the Group I Cross-Over Date, the Current Principal Amounts of
the Group I Subordinate Certificates, in the reverse order of their numerical
Class designations and (ii) from and after the Group I Cross-Over Date, the
Group I Senior Certificates, in accordance with priorities set forth in clause
(b) above, which reduction shall occur on such Distribution Date after giving
effect to distributions made on such Distribution Date.
(f) Any Net Interest Shortfall will be allocated among the Classes of
Certificates in proportion to the respective amounts of Accrued Certificate
Interest that would have been allocated thereto in the absence of such Net
Interest Shortfall for such Distribution Date. The interest portion of any
Realized Losses with respect to the Mortgage Loans occurring on or prior to the
related Cross-Over Date will not be allocated among any related Certificates,
but will reduce the amount of Available Funds on the related Distribution Date.
As a result of the subordination of the Subordinate Certificates in right of
distribution, such Realized Losses on the related Mortgage Loans will be borne
by the related Subordinate Certificates, in inverse order of their numerical
Class designations.
(g) Any Deficient Valuation will on each Distribution Date be allocated
solely to the Subordinate Certificates until the Bankruptcy Coverage Termination
Date. The Bankruptcy Loss Amount and the related coverage levels may be reduced
or modified upon written confirmation from the related Rating Agencies that such
reduction or modification will not adversely affect the then current ratings of
the Senior Certificates by the related Rating Agencies (determined without
regard to the Policy). Such reduction may adversely affect the coverage provided
by subordination with respect to Bankruptcy Losses. Any Fraud Loss will on each
Distribution Date be allocated solely to the Subordinate Certificates until the
Fraud Coverage Termination Date. Any Special Hazard Loss will on each
Distribution Date be allocated solely to the outstanding Subordinate
Certificates until the Special Hazard Termination Date.
Section 6.04 PAYMENTS.
(a) On each Distribution Date, other than the final Distribution Date,
the Paying Agent shall distribute to each Certificateholder of record as of the
immediately preceding Record Date the Certificateholder's pro rata share of its
Class (based on the aggregate Fractional Undivided Interest represented by such
Holder's Certificates) of all amounts required to be distributed on such
Distribution Date to such Class, based on written information provided to the
Paying Agent by the Securities Administrator. The Securities Administrator shall
calculate the amount to be distributed to each Class and, based on such amounts,
the Securities Administrator shall determine the amount to be distributed to
each Certificateholder. All of the Securities Administrator's calculations of
payments shall be based solely on information provided to the Securities
Administrator by the Master Servicer. Neither the Securities Administrator nor
the Paying Agent shall be required to confirm, verify or recompute any such
information but shall be entitled to rely conclusively on such information.
(b) Payment of the above amounts to each Certificateholder shall be
made (i) by check mailed to each Certificateholder entitled thereto at the
address appearing in the Certificate Register or (ii) upon receipt by the Paying
Agent on or before the fifth Business Day preceding the Record Date of written
instructions from a Certificateholder by wire transfer to a United States dollar
account maintained by the payee at any United States depository institution with
appropriate facilities for receiving such a wire transfer; provided, however,
that the final payment in respect of each Class of Certificates will be made
only upon presentation and surrender of such respective Certificates at the
office or agency of the Paying Agent specified in the notice to
Certificateholders of such final payment.
Section 6.05 STATEMENTS TO CERTIFICATEHOLDERS.
(a) Concurrently with each distribution to Holders of the Certificates,
the Securities Administrator shall make available to the parties hereto, each
Rating Agency and each such Holder via the Securities Administrator's internet
website as set forth below, a Certificates Distribution Report containing the
following information with respect to the Certificates and the Mortgage Loans,
expressed with respect to clauses (i) through (vii) in the aggregate and as a
Fractional Undivided Interest representing an initial Current Principal Amount
of $1,000, or in the case of the Class I-R-1, Class I-R-2, Class I-R-3 and Class
II-R-1 Certificates, an initial Current Principal Amount of $50, $50, $50 and
$100, respectively:
(i) the Current Principal Amount (or Notional Amount) of each
Class of Certificates immediately prior to such Distribution Date;
(ii) the amount of the distribution allocable to principal on
each applicable Class of Certificates;
(iii) the aggregate amount of interest accrued at the related
Pass-Through Rate with respect to each Class during the related Interest Accrual
Period;
(iv) the Net Interest Shortfall and any other adjustments to
interest at the related Pass-Through Rate necessary to account for any
difference between interest accrued and aggregate interest distributed with
respect to each Class of Certificates;
(v) the amount of the distribution allocable to interest on
each Class of Certificates;
(vi) the Pass-Through Rates for each Class of Certificates
with respect to such Distribution Date;
(vii) the Current Principal Amount (or Notional Amount) of
each Class of Certificates after such Distribution Date;
(viii) the amount of any Monthly Advances, Compensating
Interest Payments and outstanding unreimbursed advances by the Master Servicer
or the Servicers included in such distribution;
(ix) the aggregate amount of any Realized Losses (listed
separately for each category of Realized Loss) during the related Prepayment
Period and cumulatively since the Cut-off Date and the amount and source
(separately identified) of any distribution in respect thereof included in such
distribution;
(x) with respect to each Mortgage Loan which incurred a
Realized Loss during the related Prepayment Period, (i) the loan number, (ii)
the Scheduled Principal Balance of such Mortgage Loan as of the Cut-off Date,
(ii) the Scheduled Principal Balance of such Mortgage Loan as of the beginning
of the related Due Period, (iii) the Net Liquidation Proceeds with respect to
such Mortgage Loan and (iv) the amount of the Realized Loss with respect to such
Mortgage Loan;
(xi) the amount of Scheduled Principal and Principal
Prepayments, (including but separately identifying the principal amount of
Principal Prepayments, Insurance Proceeds, the purchase price in connection with
the purchase of Mortgage Loans, cash deposits in connection with substitutions
of Mortgage Loans and Net Liquidation Proceeds) and the number and principal
balance of Mortgage Loans purchased or substituted for during the relevant
period and cumulatively since the Cut-off Date;
(xii) the number of Mortgage Loans (excluding REO Property)
remaining in the Trust Fund as of the end of the related Prepayment Period;
(xiii) information regarding any Mortgage Loan delinquencies
as of the end of the related Prepayment Period, including the aggregate number
and aggregate Outstanding Principal Balance of Mortgage Loans (a) delinquent 30
to 59 days on a contractual basis, (b) delinquent 60 to 89 days on a contractual
basis, and (c) delinquent 90 or more days on a contractual basis, in each case
as of the close of business on the last Business Day of the immediately
preceding month;
(xiv) the number of Mortgage Loans in the foreclosure process
as of the end of the related Due Period and the aggregate Outstanding Principal
Balance of such Mortgage Loans;
(xv) the number and aggregate Outstanding Principal Balance of
all Mortgage Loans as to which the Mortgaged Property was REO Property as of the
end of the related Due Period;
(xvi) the book value (the sum of (A) the Outstanding Principal
Balance of the Mortgage Loan, (B) accrued interest through the date of
foreclosure and (C) foreclosure expenses) of any REO Property; provided that, in
the event that such information is not available to the Securities Administrator
on the Distribution Date, such information shall be furnished promptly after it
becomes available;
(xvii) the amount of Realized Losses allocated to each Class
of Certificates since the prior Distribution Date and in the aggregate for all
prior Distribution Dates; and
(xviii) the Average Loss Severity Percentage;
(xix) the amount of Special Hazard Losses, Fraud Losses,
Bankruptcy Losses and Extraordinary Losses on such Distribution Date and in the
aggregate for all prior Distribution Dates; and
(xx) the then applicable Subgroup Senior Percentage, Subgroup
Senior Prepayment Percentage, Subordinate Percentage and Subordinate Prepayment
Percentage for each Subgroup.
The information set forth above shall be calculated or reported, as the
case may be, by the Securities Administrator, based solely on, and to the extent
of, information provided to the Securities Administrator by the Master Servicer.
The Securities Administrator may conclusively rely on such information and shall
not be required to confirm, verify or recalculate any such information.
The Securities Administrator may make available each month, to any
interested party, the Certificates Distribution Report to Holders of the
Certificates via the Securities Administrator's website initially located at
"▇▇▇.▇▇▇▇▇▇▇.▇▇▇." Assistance in using the website can be obtained by calling
the Securities Administrator's customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties
that are unable to use the above distribution option are entitled to have a
paper copy mailed to them via first class mail by calling the Securities
Administrator's customer service desk and indicating such. The Securities
Administrator shall have the right to change the way such reports are
distributed in order to make such distribution more convenient and/or more
accessible to the parties, and the Securities Administrator shall provide timely
and adequate notification to all parties regarding any such change.
To the extent timely received from the Securities Administrator, the
Trustee will also make monthly statements available each month to
Certificateholders via the Trustee's internet website. The Trustee's internet
website will initially be located at
"▇▇▇▇▇://▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇.▇▇▇". Assistance in using the Trustee's
website service can be obtained by calling the Trustee's customer service desk
at (▇▇▇) ▇▇▇-▇▇▇▇.
(b) By April 30 of each year, the Securities Administrator will furnish
such report to each Holder of the Certificates of record at any time during the
prior calendar year as to the aggregate of amounts reported pursuant to
subclauses (a)(ii) and (a)(v) above with respect to the Certificates, plus
information with respect to the amount of servicing compensation and such other
customary information as the Securities Administrator may determine to be
necessary and/or to be required by the Internal Revenue Service or by a federal
or state law or rules or regulations to enable such Holders to prepare their tax
returns for such calendar year. Such obligations shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Securities Administrator pursuant to the requirements of the
Code.
Section 6.06 MONTHLY ADVANCES.
If the Scheduled Payment on a Mortgage Loan that was due on a related
Due Date is delinquent other than as a result of application of the Relief Act
and for which the related Servicer was required to make an advance pursuant to
the related Servicing Agreement exceeds the amount deposited in the Master
Servicer Collection Account which will be used for an advance with respect to
such Mortgage Loan, the Master Servicer will deposit in the Master Servicer
Collection Account not later than the Distribution Account Deposit Date
immediately preceding the related Distribution Date an amount equal to such
deficiency, net of the Servicing Fee for such Mortgage Loan except to the extent
the Master Servicer determines any such advance to be a Nonrecoverable Advance.
Subject to the foregoing, the Master Servicer shall continue to make such
advances through the date that the related Servicer is required to do so under
its Servicing Agreement. If the Master Servicer deems an advance to be a
Nonrecoverable Advance, on the Distribution Account Deposit Date, the Master
Servicer shall present an Officer's Certificate to the Paying Agent (i) stating
that the Master Servicer elects not to make a Monthly Advance in a stated amount
and (ii) detailing the reason it deems the advance to be a Nonrecoverable
Advance.
Section 6.07 COMPENSATING INTEREST PAYMENTS.
The Master Servicer shall deposit in the Master Servicer Collection
Account not later than each Distribution Account Deposit Date an amount equal to
the lesser of (i) the sum of the aggregate amounts required to be paid by the
Servicers under the related Servicing Agreement with respect to subclauses (a)
and (b) of the definition of Interest Shortfall with respect to the Mortgage
Loans for the related Distribution Date, and not so paid by the Servicers and
(ii) the Master Servicing Fee for such Distribution Date (such amount, the
"Compensating Interest Payment"). The Master Servicer shall not be entitled to
any reimbursement of any Compensating Interest Payment.
ARTICLE VII
The Master Servicer-
Section 7.01 LIABILITIES OF THE MASTER SERVICER.
The Master Servicer shall be liable in accordance herewith only to the
extent of the obligations specifically imposed upon and undertaken by it herein.
Section 7.02 MERGER OR CONSOLIDATION OF THE MASTER SERVICER.
(a) The Master Servicer will keep in full force and effect its
existence, rights and franchises as a corporation under the laws of the state of
its incorporation, 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,
the Certificates or any of the Mortgage Loans and to perform its duties under
this Agreement.
(b) Any Person into which the Master Servicer may be merged or
consolidated, or any corporation resulting from any merger or consolidation to
which the Master Servicer shall be a party, or any Person succeeding to the
business of the Master Servicer, shall be the successor of the Master Servicer
hereunder, without the execution or filing of any paper or further act on the
part of any of the parties hereto, anything herein to the contrary
notwithstanding.
Section 7.03 INDEMNIFICATION OF THE TRUSTEE, THE MASTER SERVICER AND
THE SECURITIES ADMINISTRATOR.
(a) The Master Servicer agrees to indemnify the Indemnified Persons
for, and to hold them harmless against, any loss, liability or expense
(including reasonable legal fees and disbursements of counsel) incurred on their
part that may be sustained in connection with, arising out of, or relating to,
any claim or legal action (including any pending or threatened claim or legal
action) relating to this Agreement with respect to the Mortgage Loans and the
Certificates, the Servicing Agreements, the Assignment Agreement or the
Certificates or the powers of attorney delivered by the Trustee hereunder (i)
related to the Master Servicer's failure to perform its duties in compliance
with this Agreement (except as any such loss, liability or expense shall be
otherwise reimbursable pursuant to this Agreement) or (ii) incurred by reason of
the Master Servicer's willful misfeasance, bad faith or gross negligence in the
performance of duties hereunder or by reason of reckless disregard of
obligations and duties hereunder, provided, in each case, that with respect to
any such claim or legal action (or pending or threatened claim or legal action),
the Indemnified Person shall have given the Master Servicer and the Depositor
written notice thereof promptly after the Indemnified Person shall have with
respect to such claim or legal action knowledge thereof. The Master Servicer's
failure to receive any such notice shall not affect the Indemnified Person right
to indemnification hereunder, except to the extent the Master Servicer is
materially prejudiced by such failure to give notice. This indemnity shall
survive the resignation or removal of the Trustee, Master Servicer or the
Securities Administrator and the termination of this Agreement.
(b) [Reserved].
(c) The Trust Fund will indemnify any Indemnified Person for any loss,
liability or expense of any Indemnified Person not otherwise covered by the
Master Servicer's indemnification pursuant to Subsection (a) above.
Section 7.04 LIMITATIONS ON LIABILITY OF THE MASTER SERVICER AND
OTHERS.
Subject to the obligation of the Master Servicer to indemnify the
Indemnified Persons pursuant to Section 7.03:
(a) Neither the Master Servicer nor any of the directors, officers,
employees or agents of the Master Servicer shall be under any liability to the
Indemnified Persons, the Depositor, the Trust Fund or the Holders of the
Certificates for taking any action or for refraining from taking any action in
good faith pursuant to this Agreement, or for errors in judgment; provided,
however, that this provision shall not protect the Master Servicer or any such
Person against any breach of warranties or representations made herein or any
liability which would otherwise be imposed by reason of such Person's willful
misfeasance, bad faith or gross negligence in the performance of duties or by
reason of reckless disregard of obligations and duties hereunder.
(b) The Master Servicer and any director, officer, employee or agent of
the Master Servicer may rely in good faith on any document of any kind prima
facie properly executed and submitted by any Person respecting any matters
arising hereunder.
(c) The Master Servicer, the Custodian and any director, officer,
employee or agent of the Master Servicer or the Custodian, and the Trustee, to
the extent it becomes a party to the ▇▇▇▇▇ Fargo Servicing Agreement pursuant to
Section 3.03, and any officer, director, employee or agent of the Trustee, shall
be indemnified by the Trust and held harmless thereby against any loss,
liability or expense (including reasonable legal fees and disbursements of
counsel) incurred on their part that may be sustained in connection with,
arising out of, or related to, any claim or legal action (including any pending
or threatened claim or legal action) relating to this Agreement, the
Certificates or any Servicing Agreement (except to the extent that the Master
Servicer or the Trustee, as the case may be, is indemnified by the Servicer
thereunder), other than (i) any such loss, liability or expense related to the
Master Servicer's failure to perform its duties in compliance with this
Agreement (except as any such loss, liability or expense shall be otherwise
reimbursable pursuant to this Agreement), or to the Custodian's failure to
perform its duties under the Custodial Agreement, respectively, or (ii) any such
loss, liability or expense incurred by reason of the Master Servicer's or the
Custodian's willful misfeasance, bad faith or gross negligence in the
performance of duties hereunder or under the Custodial Agreement, as applicable,
or by reason of reckless disregard of obligations and duties hereunder or under
the Custodial Agreement, as applicable.
(d) The Master Servicer shall not be under any obligation to appear in,
prosecute or defend any legal action that is not incidental to its duties under
this Agreement and that in its opinion may involve it in any expense or
liability; provided, however, the Master Servicer may in its discretion, with
the consent of the Trustee (which consent shall not be unreasonably withheld),
undertake any such action which it may deem necessary or desirable with respect
to this Agreement and the rights and duties of the parties hereto and the
interests of the Holders of the Certificates hereunder. In such event, the legal
expenses and costs of such action and any liability resulting therefrom shall be
expenses, costs and liabilities of the Trust Fund and the Master Servicer shall
be entitled to be reimbursed therefor out of the Master Servicer Collection
Account as provided by Section 4.03. Nothing in this Subsection 7.04(d) shall
affect the Master Servicer's obligation to supervise, or to take such actions as
are necessary to ensure, the servicing and administration of the Mortgage Loans
pursuant to Subsection 3.01(a).
(e) In taking or recommending any course of action pursuant to this
Agreement, unless specifically required to do so pursuant to this Agreement, the
Master Servicer shall not be required to investigate or make recommendations
concerning potential liabilities which the Trust might incur as a result of such
course of action by reason of the condition of the Mortgaged Properties but
shall give notice to the Trustee if it has notice of such potential liabilities.
(f) The Master Servicer shall not be liable for any acts or omissions
of any Servicers, with the exception of ▇▇▇▇▇ Fargo, except as otherwise
expressly provided herein.
Section 7.05 MASTER SERVICER NOT TO RESIGN.
Except as provided in Section 7.07, the Master Servicer shall not
resign from the obligations and duties hereby imposed on it except upon a
determination that any such duties hereunder are no longer permissible under
applicable law and such impermissibility cannot be cured; provided, however, in
the event that the Securities Administrator resigns or is terminated or removed
in accordance with the provisions hereof, the Master Servicer shall resign. Any
such determination permitting the resignation of the Master Servicer shall be
evidenced by an Opinion of Independent Counsel addressed to the Trustee to such
effect delivered to the Trustee. No such resignation by the Master Servicer
shall become effective until the Company or the Trustee or a successor to the
Master Servicer reasonably satisfactory to the Trustee shall have assumed the
responsibilities and obligations of the Master Servicer in accordance with
Section 8.02 hereof. The Trustee shall notify the Rating Agencies of the
resignation of the Master Servicer.
Section 7.06 SUCCESSOR MASTER SERVICER.
In connection with the appointment of any successor master servicer or
the assumption of the duties of the Master Servicer, the Company or the Trustee
may make such arrangements for the compensation of such successor master
servicer out of payments on the Mortgage Loans as the Company or the Trustee and
such successor master servicer shall agree. If the successor master servicer
does not agree that such market value is a fair price, such successor master
servicer shall obtain two quotations of market value from third parties actively
engaged in the servicing of single-family Mortgage Loans. Notwithstanding the
foregoing, the compensation payable to a successor master servicer may not
exceed the compensation which the Master Servicer would have been entitled to
retain if the Master Servicer had continued to act as Master Servicer hereunder.
Section 7.07 SALE AND ASSIGNMENT OF MASTER SERVICING.
The Master Servicer may sell and assign its rights and delegate its
duties and obligations in its entirety as Master Servicer under this Agreement
and the Company may terminate the Master Servicer without cause and select a new
Master Servicer; provided, however, that: (i) the purchaser or transferee
accepting such assignment and delegation (a) shall be a Person which shall be
qualified to service Mortgage Loans for ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac; (b) shall
have a net worth of not less than $10,000,000 (unless otherwise approved by each
Rating Agency pursuant to clause (ii) below); (c) shall be reasonably
satisfactory to the Trustee (as evidenced in a writing signed by the Trustee);
and (d) shall execute and deliver to the Trustee an agreement, in form and
substance reasonably satisfactory to the Trustee, which contains an assumption
by such Person of the due and punctual performance and observance of each
covenant and condition to be performed or observed by it as master servicer
under this Agreement, any custodial agreement from and after the effective date
of such agreement; (ii) each Rating Agency shall be given prior written notice
of the identity of the proposed successor to the Master Servicer and each Rating
Agency's rating of the Certificates (determined without regard to the Policy) in
effect immediately prior to such assignment, sale and delegation will not be
downgraded, qualified or withdrawn as a result of such assignment, sale and
delegation, as evidenced by a letter to such effect delivered to the Master
Servicer and the Trustee; (iii) the Master Servicer assigning and selling the
master servicing shall deliver to the Trustee an Officer's Certificate and an
Opinion of Independent Counsel addressed to the Trustee, each stating that all
conditions precedent to such action under this Agreement have been completed and
such action is permitted by and complies with the terms of this Agreement; and
(iv) in the event the Master Servicer is terminated without cause by the
Company, the Company shall pay the terminated Master Servicer a termination fee
equal to 0.25% of the aggregate Scheduled Principal Balance of the Mortgage
Loans at the time the master servicing of the Mortgage Loans is transferred to
the successor Master Servicer. No such assignment or delegation shall affect any
liability of the Master Servicer arising prior to the effective date thereof.
ARTICLE VIII
Default
Section 8.01 EVENTS OF DEFAULT.
"Event of Default," wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body) and only with respect to the
defaulting Master Servicer:
(i) The Master Servicer fails to cause to be deposited in the
Distribution Account any amount so required to be deposited by it pursuant to
this Agreement (other than a Monthly Advance), and such failure continues
unremedied for a period of three Business Days after the date upon which written
notice of such failure, requiring the same to be remedied, shall have been given
to the Master Servicer; or
(ii) The Master Servicer fails to observe or perform in any
material respect any other material covenants and agreements set forth in this
Agreement to be performed by it, which covenants and agreements materially
affect the rights of Holders of the Certificates, and such failure continues
unremedied for a period of 60 days after the date on which written notice of
such failure, properly requiring the same to be remedied, shall have been given
to the Master Servicer by the Trustee or to the Master Servicer and the Trustee
by the Holders of Certificates evidencing Fractional Undivided Interests
aggregating not less than 25% of the Trust Fund; or
(iii) There is entered against the Master Servicer a decree or
order by a court or agency or supervisory authority having jurisdiction in the
premises for the appointment of a conservator, receiver or liquidator in any
insolvency, readjustment of debt, marshaling of assets and liabilities or
similar proceedings, or for the winding up or liquidation of its affairs, and
the continuance of any such decree or order is unstayed and in effect for a
period of 60 consecutive days, or an involuntary case is commenced against the
Master Servicer under any applicable insolvency or reorganization statute and
the petition is not dismissed within 60 days after the commencement of the case;
or
(iv) The Master Servicer consents to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings of or relating to
the Master Servicer or substantially all of its property; or the Master Servicer
admits in writing its inability to pay its debts generally as they become due,
files a petition to take advantage of any applicable insolvency or
reorganization statute, makes an assignment for the benefit of its creditors, or
voluntarily suspends payment of its obligations;
(v) The Master Servicer assigns or delegates its duties or
rights under this Agreement in contravention of the provisions permitting such
assignment or delegation under Sections 7.05 or 7.07; or
(vi) The Master Servicer fails to deposit or cause to be
deposited, in the Distribution Account any Monthly Advance (other than a
Nonrecoverable Advance) by 5:00 p.m. New York City time on the Distribution
Account Deposit Date.
In each and every such case, so long as such Event of Default with respect to
the Master Servicer shall not have been remedied, either the Trustee or the
Holders of Certificates evidencing Fractional Undivided Interests aggregating
not less than 51% of the principal of the Trust Fund, by notice in writing to
the Master Servicer (and to the Trustee if given by such Holders of the
Certificates), with a copy to the Rating Agencies, and with the consent of the
Company, may terminate all of the rights and obligations (but not the
liabilities) of the Master Servicer under this Agreement and in and to the
Mortgage Loans and/or the REO Property serviced by the Master Servicer and the
proceeds thereof. Upon the receipt by the Master Servicer of the written notice,
all authority and power of the Master Servicer under this Agreement, whether
with respect to the Certificates, the Mortgage Loans, REO Property or under any
other related agreements (but only to the extent that such other agreements
relate to the Mortgage Loans or related REO Property) shall, subject to Section
8.02, automatically and without further action pass to and be vested in the
Trustee pursuant to this Section 8.01; and, without limitation, the Trustee is
hereby authorized and empowered to execute and deliver, on behalf of the Master
Servicer as attorney-in-fact or otherwise, any and all documents and other
instruments and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise. The Master Servicer agrees to cooperate with
the Trustee in effecting the termination of the Master Servicer's rights and
obligations hereunder, including, without limitation, the transfer to the
Trustee of (i) the property and amounts which are then or should be part of the
Trust or which thereafter become part of the Trust; and (ii) originals or copies
of all documents of the Master Servicer reasonably requested by the Trustee to
enable it to assume the Master Servicer's duties thereunder. All reasonable and
properly documented costs and expenses incurred by the Trustee in connection
with such transfer shall be reimbursed to the Trustee by the Master Servicer
within 30 days of request therefor or, if the Master Servicer fails to pay any
such amount, reimbursed from amounts on deposit in the Distribution Amount. In
addition to any other amounts which are then, or, notwithstanding the
termination of its activities under this Agreement, may become payable to the
Master Servicer under this Agreement, the Master Servicer shall be entitled to
receive, out of any amount received on account of a Mortgage Loan or related REO
Property, that portion of such payments which it would have received as
reimbursement under this Agreement if notice of termination had not been given.
The termination of the rights and obligations of the Master Servicer shall not
affect any obligations incurred by the Master Servicer prior to such
termination.
Notwithstanding the foregoing, if an Event of Default described in
clause (vi) of this Section 8.01 shall occur, the Trustee shall, by notice in
writing to the Master Servicer, which may be delivered by telecopy, immediately
terminate all of the rights and obligations of the Master Servicer thereafter
arising under this Agreement, but without prejudice to any rights it may have as
a Holder of the Certificates or to reimbursement of Monthly Advances and other
advances of its own funds, and the Trustee shall act as provided in Section 8.02
to carry out the duties of the Master Servicer, including the obligation to make
any Monthly Advance the nonpayment of which was an Event of Default described in
clause (vi) of this Section 8.01. Any such action taken by the Trustee must be
prior to the distribution on the relevant Distribution Date.
Section 8.02 TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR.
(a) Upon the receipt by the Master Servicer of a notice of termination
pursuant to Section 8.01 or an Opinion of Independent Counsel pursuant to
Section 7.05 to the effect that the Master Servicer is legally unable to act or
to delegate its duties to a Person which is legally able to act, the Trustee
shall automatically become the successor in all respects to the Master Servicer
in its capacity under this Agreement and the transactions set forth or provided
for herein and shall thereafter be subject to all the responsibilities, duties,
liabilities and limitations on liabilities relating thereto placed on the Master
Servicer by the terms and provisions hereof (including the requirement to make
Monthly Advances pursuant to Section 6.06); provided, however, that the Company
shall have the right to either (a) immediately assume the duties of the Master
Servicer or (b) select a successor Master Servicer; provided further, however,
that the Trustee shall have no obligation whatsoever with respect to any
liability (other than advances deemed recoverable and not previously made)
incurred by the Master Servicer at or prior to the time of termination. As
compensation therefor, the Trustee shall be entitled to compensation which the
Master Servicer would have been entitled to retain if the Master Servicer had
continued to act hereunder, except for those amounts due the Master Servicer as
reimbursement permitted under this Agreement for advances previously made or
expenses previously incurred. Notwithstanding the above, the Trustee may, if it
shall be unwilling so to act, or shall, if it is legally unable so to act,
appoint or petition a court of competent jurisdiction to appoint, any
established housing and home finance institution which is a ▇▇▇▇▇▇ Mae- or
▇▇▇▇▇▇▇ Mac-approved servicer, and with respect to a successor to the Master
Servicer only, having a net worth of not less than $10,000,000, as the successor
to the Master Servicer hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of the Master Servicer hereunder;
provided, that the Trustee shall obtain a letter from each Rating Agency that
the ratings, if any, on each of the Certificates (determined without regard to
the Policy) will not be lowered as a result of the selection of the successor to
the Master Servicer. Pending appointment of a successor to the Master Servicer
hereunder, the Trustee shall act in such capacity as hereinabove provided. In
connection with such appointment and assumption, the Trustee may make such
arrangements for the compensation of such successor out of payments on the
Mortgage Loans as it and such successor shall agree; provided, however, that the
provisions of Section 7.06 shall apply, the compensation shall not be in excess
of that which the Master Servicer would have been entitled to if the Master
Servicer had continued to act hereunder, and that such successor shall undertake
and assume the obligations of the Master Servicer to pay compensation to any
third Person acting as an agent or independent contractor in the performance of
master servicing responsibilities hereunder. The Trustee and such successor
shall take such action, consistent with this Agreement, as shall be necessary to
effectuate any such succession.
(b) If the Trustee shall succeed to any duties of the Master Servicer
respecting the Mortgage Loans as provided herein, it shall do so in a separate
capacity and not in its capacity as Trustee and, accordingly, the provisions of
Article IX shall be inapplicable to the Trustee in its duties as the successor
to the Master Servicer in the servicing of the Mortgage Loans (although such
provisions shall continue to apply to the Trustee in its capacity as Trustee);
the provisions of Article VII, however, shall apply to it in its capacity as
successor master servicer.
Section 8.03 NOTIFICATION TO CERTIFICATEHOLDERS.
Upon any termination or appointment of a successor to the Master
Servicer, the Trustee shall give prompt written notice thereof to Holders of the
Certificates at their respective addresses appearing in the Certificate Register
and to the Rating Agencies.
Section 8.04 WAIVER OF DEFAULTS.
The Trustee shall transmit by mail to all Holders of the Certificates,
within 60 days after the occurrence of any Event of Default actually known to a
Responsible Officer of the Trustee, unless such Event of Default shall have been
cured, notice of each such Event of Default. The Holders of Certificates
evidencing Fractional Undivided Interests aggregating not less than 51% of the
Trust Fund may, on behalf of all Holders of the Certificates, waive any default
by the Master Servicer in the performance of its obligations hereunder and the
consequences thereof, except a default in the making of or the causing to be
made any required distribution on the Certificates, which default may only be
waived by Holders of Certificates evidencing Fractional Undivided Interests
aggregating 100% of the Trust Fund. Upon any such waiver of a past default, such
default shall be deemed to cease to exist, and any Event of Default arising
therefrom shall be deemed to have been timely 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.
The Trustee shall give notice of any such waiver to the Rating Agencies.
Section 8.05 LIST OF CERTIFICATEHOLDERS.
Upon written request of three or more Holders of Certificates of
record, for purposes of communicating with other Holders of Certificates with
respect to their rights under this Agreement, the Certificate Registrar will
afford such Certificateholders access during business hours to the most recent
list of related Certificateholders held by the Certificate Registrar.
ARTICLE IX
Concerning the Trustee and the Securities Administrator
Section 9.01 DUTIES OF TRUSTEE AND SECURITIES ADMINISTRATOR.
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiver of all Events of Default which may have occurred, and
the Securities Administrator each undertake to perform such duties and only such
duties as are specifically set forth in this Agreement as duties of the Trustee
and the Securities Administrator, respectively. If an Event of Default has
occurred and has not been cured or waived, the Trustee shall exercise such of
the rights and powers vested in it by this Agreement use the same degree of care
and skill in their exercise, as a prudent person would exercise under the
circumstances in the conduct of his own affairs.
(b) Upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments which are specifically
required to be furnished to the Trustee and the Securities Administrator
pursuant to any provision of this Agreement, the Trustee and the Securities
Administrator, respectively, shall examine them to determine whether they are on
their face in the form required by this Agreement; provided, however, that
neither the Trustee nor the Securities Administrator shall be responsible for
the accuracy or content of any resolution, certificate, statement, opinion,
report, document, order or other instrument furnished hereunder; provided,
further, that neither the Trustee nor the Securities Administrator shall be
responsible for the accuracy or verification of any calculation provided to it
pursuant to this Agreement.
(c) On each Distribution Date, the Paying Agent shall make monthly
distributions and the final distribution to the related Certificateholders from
funds in the Distribution Account, as provided in Sections 6.01 and 10.01 herein
based solely on the report of the Securities Administrator.
(d) No provision of this Agreement shall be construed to relieve the
Trustee or the Securities Administrator from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct;
provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after
the curing or waiver of all such Events of Default which may have occurred, the
duties and obligations of the Trustee and the Securities Administrator shall be
determined solely by the express provisions of this Agreement, neither the
Trustee nor the Securities Administrator shall be liable except for the
performance of their respective duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall be read into
this Agreement against the Trustee or the Securities Administrator and, in the
absence of bad faith on the part of the Trustee or the Securities Administrator,
respectively, the Trustee or the Securities Administrator, respectively, may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions furnished to the
Trustee or the Securities Administrator, respectively, and conforming to the
requirements of this Agreement;
(ii) Neither the Trustee nor the Securities Administrator
shall be liable in its individual capacity for an error of judgment made in good
faith by a Responsible Officer or Responsible Officers of the Trustee or an
officer of the Securities Administrator, respectively, unless it shall be proved
that the Trustee or the Securities Administrator, respectively, was negligent in
ascertaining the pertinent facts;
(iii) Neither the Trustee nor the Securities Administrator
shall be liable with respect to any action taken, suffered or omitted to be
taken by it in good faith in accordance with the directions of the Holders of
Certificates evidencing Fractional Undivided Interests aggregating not less than
25% of the portion of the Trust Fund related to such Certificates, if such
action or non-action relates to the time, method and place of conducting any
proceeding for any remedy available to the Trustee or the Securities
Administrator, respectively, or exercising any trust or other power conferred
upon the Trustee or the Securities Administrator, respectively, under this
Agreement;
(iv) The Trustee shall not be required to take notice or be
deemed to have notice or knowledge of any default or Event of Default unless a
Responsible Officer of the Trustee's Corporate Trust Office shall have actual
knowledge thereof. In the absence of such notice, the Trustee may conclusively
assume there is no such default or Event of Default;
(v) The Trustee shall not in any way be liable by reason of
any insufficiency in any Account held by or in the name of Trustee unless it is
determined by a court of competent jurisdiction that the Trustee's gross
negligence or willful misconduct was the primary cause of such insufficiency
(except to the extent that the Trustee is obligor and has defaulted thereon);
(vi) Anything in this Agreement to the contrary
notwithstanding, in no event shall the Trustee or the Securities Administrator
be liable for special, indirect or consequential loss or damage of any kind
whatsoever (including but not limited to lost profits), even if the Trustee or
the Securities Administrator, respectively, has been advised of the likelihood
of such loss or damage and regardless of the form of action;
(vii) None of the Securities Administrator, the Depositor, the
Company or the Trustee shall be responsible for the acts or omissions of the
other, it being understood that this Agreement shall not be construed to render
them partners, joint venturers or agents of one another and
(viii) Neither the Trustee nor the Securities Administrator
shall be required to expend or risk its own funds or otherwise incur financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if there is reasonable ground for believing that
the repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it, and none of the provisions contained in this
Agreement shall in any event require the Trustee or the Securities Administrator
to perform, or be responsible for the manner of performance of, any of the
obligations of the Master Servicer under the Servicing Agreements, except during
such time, if any, as the Trustee shall be the successor to, and be vested with
the rights, duties, powers and privileges of, the Master Servicer in accordance
with the terms of this Agreement.
(e) All funds received by the Master Servicer and the Paying Agent and
required to be deposited in the Master Servicer Collection Account, Distribution
Account pursuant to this Agreement will be promptly so deposited by the Master
Servicer or the Paying Agent, as applicable.
(f) Except for those actions that the Trustee or the Securities
Administrator is required to take hereunder, neither the Trustee nor the
Securities Administrator shall have any obligation or liability to take any
action or to refrain from taking any action hereunder in the absence of written
direction as provided hereunder.
Section 9.02 CERTAIN MATTERS AFFECTING THE TRUSTEE AND THE SECURITIES
ADMINISTRATOR.
Except as otherwise provided in Section 9.01:
(i) The Trustee and the Securities Administrator may rely and
shall be protected in acting or refraining from acting in reliance on any
resolution, certificate of the Depositor, the Master Servicer or a Servicer,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other paper
or document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(ii) The Trustee and the Securities Administrator may consult
with counsel and any advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection with respect to any action taken
or suffered or omitted by it hereunder in good faith and in accordance with such
advice or Opinion of Counsel;
(iii) Neither the Trustee nor the Securities Administrator
shall be under any obligation to exercise any of the trusts or powers vested in
it by this Agreement, other than its obligation to give notices pursuant to this
Agreement, or to institute, conduct or defend any litigation hereunder or in
relation hereto at the request, order or direction of any of the
Certificateholders pursuant to the provisions of this Agreement, unless such
Certificateholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby. Nothing contained herein shall, however, relieve the Trustee
of the obligation, upon the occurrence of an Event of Default of which a
Responsible Officer of the Trustee has actual knowledge (which has not been
cured or waived), to exercise such of the rights and powers vested in it by this
Agreement, and to use the same degree of care and skill in their exercise, as a
prudent person would exercise under the circumstances in the conduct of his own
affairs;
(iv) Prior to the occurrence of an Event of Default hereunder
and after the curing or waiver of all Events of Default which may have occurred,
neither the Trustee nor the Securities Administrator shall be liable for any
action taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Agreement;
(v) Neither the Trustee nor the Securities Administrator shall
be bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document, unless
requested in writing to do so by Holders of Certificates evidencing Fractional
Undivided Interests aggregating not less than 25% of the portion of the Trust
Fund related to such Certificates, and provided that the payment within a
reasonable time to the Trustee or the Securities Administrator, as applicable,
of the costs, expenses or liabilities likely to be incurred by it in the making
of such investigation is, in the opinion of the Trustee or the Securities
Administrator, as applicable, reasonably assured to the Trustee or the
Securities Administrator, as applicable, by the security afforded to it by the
terms of this Agreement. The Trustee or the Securities Administrator may require
reasonable indemnity against such expense or liability as a condition to taking
any such action. The reasonable expense of every such examination shall be paid
by the related Certificateholders requesting the investigation;
(vi) The Trustee and the Securities Administrator may execute
any of the trusts or powers hereunder or perform any duties hereunder either
directly or through Affiliates, agents or attorneys; provided, however, that the
Trustee may not appoint any agent to perform its custodial functions with
respect to the Mortgage Files or paying agent functions under this Agreement
without the express written consent of the Master Servicer, which consent will
not be unreasonably withheld. Neither the Trustee nor the Securities
Administrator shall be liable or responsible for the misconduct or negligence of
any of the Trustee's or the Securities Administrator's agents or attorneys or a
custodian or paying agent appointed hereunder by the Trustee or the Securities
Administrator with due care and, when required, with the consent of the Master
Servicer;
(vii) Should the Trustee or the Securities Administrator deem
the nature of any action required on its part, to be unclear, the Trustee or the
Securities Administrator, respectively, may require prior to such action that it
be provided by the Depositor with reasonable further instructions;
(viii) The right of the Trustee or the Securities
Administrator to perform any discretionary act enumerated in this Agreement
shall not be construed as a duty, and neither the Trustee nor the Securities
Administrator shall be accountable for other than its negligence or willful
misconduct in the performance of any such act;
(ix) Neither the Trustee nor the Securities Administrator
shall be required to give any bond or surety with respect to the execution of
the trust created hereby or the powers granted hereunder, except as provided in
Subsection 9.07; and
(x) Neither the Trustee nor the Securities Administrator shall
have any duty to conduct any affirmative investigation as to the occurrence of
any condition requiring the repurchase of any Mortgage Loan by the Seller
pursuant to this Agreement or the Mortgage Loan Purchase Agreement, as
applicable, or the eligibility of any Mortgage Loan for purposes of this
Agreement.
Section 9.03 TRUSTEE AND SECURITIES ADMINISTRATOR NOT LIABLE FOR
CERTIFICATES OR MORTGAGE LOANS.
The recitals contained herein and in the Certificates (other than the
signature and countersignature of the Certificate Registrar on such
Certificates) shall be taken as the statements of the Depositor, and neither the
Trustee, nor the Custodian on its behalf, nor the Securities Administrator shall
have any responsibility for their correctness. Neither the Trustee nor the
Securities Administrator makes any representation as to the validity or
sufficiency of the Certificates (other than the signature and countersignature
of the Certificate Registrar on the such Certificates) or of any Mortgage Loan;
provided, however, that the foregoing shall not relieve the Trustee, or the
Custodian on its behalf, of the obligation to review the Mortgage Files pursuant
to Sections 2.02 and 2.04. The Securities Administrator's signature and
countersignature (or countersignature of its agent) on the Certificates shall be
solely in its capacity as Securities Administrator and shall not constitute the
Certificates an obligation of the Securities Administrator in any other
capacity. Neither the Trustee or the Securities Administrator shall be
accountable for the use or application by the Depositor of any of the
Certificates or of the proceeds of such Certificates, or for the use or
application of any funds paid to the Depositor with respect to the Mortgage
Loans. Neither the Trustee nor the Securities Administrator shall be responsible
for the legality or validity of this Agreement or any document or instrument
relating to this Agreement, the validity of the execution of this Agreement or
of any supplement hereto or instrument of further assurance, or the validity,
priority, perfection or sufficiency of the security for the Certificates issued
hereunder or intended to be issued hereunder. Neither the Trustee nor the
Securities Administrator shall at any time have any responsibility or liability
for or with respect to the legality, validity and enforceability of any Mortgage
or any Mortgage Loan, or the perfection and priority of any Mortgage or the
maintenance of any such perfection and priority, or for or with respect to the
sufficiency of either Trust Fund, or any portion of either Trust Fund or its
ability to make the payments to be distributed to Certificateholders, under this
Agreement. Neither the Trustee nor the Securities Administrator shall have any
responsibility for filing any financing statement or continuation statement in
any public office at any time or to otherwise perfect or maintain the perfection
of any security interest or lien granted to it hereunder or to record this
Agreement.
Section 9.04 TRUSTEE AND SECURITIES ADMINISTRATOR MAY OWN CERTIFICATES.
The Trustee and the Securities Administrator in its individual capacity
or in any capacity other than as Trustee hereunder may become the owner or
pledgee of any Certificates with the same rights it would have if it were not
Trustee or the Securities Administrator, as applicable, and may otherwise deal
with the parties hereto.
Section 9.05 TRUSTEE'S AND SECURITIES ADMINISTRATOR'S FEES AND
EXPENSES.
The fees of the Trustee shall be paid in accordance with a side letter
agreement between the Trustee and the Master Servicer. With respect to the Trust
Fund, the Securities Administrator shall be entitled to receive a fee payable by
the Master Servicer and as agreed to between the Securities Administrator and
the Master Servicer in a separate agreement. In addition, the Trustee and the
Securities Administrator will be entitled to recover, from the Distribution
Account pursuant to Section 4.05 with respect to the Certificates all reasonable
out-of-pocket expenses, indemnification payments, disbursements and advances and
the expenses of the Trustee and the Securities Administrator, respectively, in
connection with any Event of Default, any breach of this Agreement or any claim
or legal action (including any pending or threatened claim or legal action) or
incurred or made by the Trustee or the Securities Administrator, respectively,
in the administration of the trusts hereunder (including the reasonable
compensation, expenses and disbursements of its counsel) except any such
expense, disbursement or advance as may arise from its negligence or intentional
misconduct or which is the responsibility of the related Certificateholders. If
funds in the Distribution Account are insufficient therefor, the Trustee and the
Securities Administrator shall recover such expenses from the Depositor and the
Depositor hereby agrees to pay such expenses, disbursements or advances upon
demand. Such compensation and reimbursement obligation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust.
Section 9.06 ELIGIBILITY REQUIREMENTS FOR TRUSTEE AND SECURITIES
ADMINISTRATOR.
The Trustee and any successor Trustee and the Securities Administrator
and any successor Securities Administrator shall during the entire duration of
this Agreement be a state bank or trust company or a national banking
association organized and doing business under the laws of such state or the
United States of America, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus and undivided profits of at least
$40,000,000 or, in the case of a successor Trustee, $50,000,000, subject to
supervision or examination by federal or state authority and, in the case of the
Trustee, rated "BBB" or higher by S&P or Fitch and "Baa2" or higher by ▇▇▇▇▇'▇
with respect to their long-term rating and rated "BBB" or higher by S&P or Fitch
and "Baa2" or higher by ▇▇▇▇▇'▇ with respect to any outstanding long-term
unsecured unsubordinated debt, and, in the case of a successor Trustee or
successor Securities Administrator other than pursuant to Section 9.10, rated in
one of the two highest long-term debt categories of, or otherwise acceptable to,
each of the Rating Agencies. If the Trustee publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section 9.06
the combined capital and surplus of such corporation shall be deemed to be its
total equity capital (combined capital and surplus) as set forth in its most
recent report of condition so published. In case at any time the Trustee or the
Securities Administrator shall cease to be eligible in accordance with the
provisions of this Section 9.06, the Trustee or the Securities Administrator
shall resign immediately in the manner and with the effect specified in Section
9.08.
The Securities Administrator (i) may not be the Seller, an originator
of any of the Mortgage Loans, Master Servicer, Servicer, the Depositor or an
affiliate of the Depositor unless the Securities Administrator is in an
institutional trust department of ▇▇▇▇▇ Fargo, N.A., (ii) must be authorized to
exercise corporate trust powers under the laws of its jurisdiction of
organization, and (iii) must be rated at least "A/F1" by Fitch, if Fitch is a
Rating Agency, or the equivalent rating by S&P or ▇▇▇▇▇'▇, or such other rating
as is acceptable to Fitch as provided in writing. If no successor Securities
Administrator shall have been appointed by the Depositor and shall have accepted
appointment within 60 days after the Securities Administrator ceases to be the
Securities Administrator pursuant to this Section 9.06, then the Trustee shall
perform the duties of the Securities Administrator pursuant to this Agreement.
The Trustee shall notify the Rating Agencies of any change of Securities
Administrator. In such event, the Trustee shall assume all of the rights and
obligations of the Securities Administrator hereunder arising thereafter except
that the Trustee shall not be (i) liable for losses of the predecessor
Securities Administrator or any acts or omissions of the predecessor Securities
Administrator hereunder or (ii) deemed to have made any representations and
warranties of the Securities Administrator made herein. The Trustee shall not be
accountable, shall have no liability and makes no representation as to any acts
or omissions hereunder of the Securities Administrator until such time as the
Trustee may be required to act as successor Securities Administrator pursuant to
this Section 9.06 and thereupon only for the acts or omissions of the Trustee as
successor Securities Administrator.
The Trustee or successor Securities Administrator shall be entitled to
be reimbursed from the Master Servicer for all reasonable costs and expenses
associated with the transfer of the duties of the Securities Administrator from
the predecessor Securities Administrator, including, without limitation, any
costs or expenses associated with the complete transfer of all Securities
Administrator data as may be required by the Trustee or successor Securities
Administrator to correct any errors or insufficiencies in such Securities
Administrator data or otherwise to enable the Trustee or successor Securities
Administrator to perform the duties of the Securities Administrator properly and
effectively.
Section 9.07 INSURANCE.
The Trustee, the Paying Agent and the Securities Administrator, at
their own expense, shall at all times maintain and keep in full force and
effect: (i) fidelity insurance, (ii) theft of documents insurance and (iii)
forgery insurance (which may be collectively satisfied by a "Financial
Institution Bond" and/or a "Bankers' Blanket Bond"). All such insurance shall be
in amounts, with standard coverage and subject to deductibles, as are customary
for insurance typically maintained by banks or their affiliates which act as
custodians for investor-owned mortgage pools. A certificate of an officer of the
Trustee, the Paying Agent or the Securities Administrator as to the Trustee's,
the Paying Agent's or the Securities Administrator's, respectively, compliance
with this Section 9.07 shall be furnished to any Certificateholder upon
reasonable written request.
Section 9.08 RESIGNATION AND REMOVAL OF THE TRUSTEE AND SECURITIES
ADMINISTRATOR.
(a) The Trustee and the Securities Administrator may at any time resign
(including, in the case of the Securities Administrator, in connection with the
resignation or termination of the Master Servicer) and be discharged from the
Trust hereby created by giving written notice thereof to the Depositor, the
Seller, the Securities Administrator (or the Trustee, if the Securities
Administrator resigns) and the Master Servicer, with a copy to the Rating
Agencies. Upon receiving such notice of resignation, the Depositor shall
promptly appoint a successor trustee or successor securities administrator, as
applicable, by written instrument, in triplicate, one copy of which instrument
shall be delivered to each of the resigning trustee or securities administrator,
as applicable, and the successor trustee or securities administrator, as
applicable. If no successor trustee or successor securities administrator shall
have been so appointed and have accepted appointment within 30 days after the
giving of such notice of resignation, the resigning Trustee or Securities
Administrator may petition any court of competent jurisdiction for the
appointment of a successor trustee or securities administrator.
(b) If at any time the Trustee, the Paying Agent or the Securities
Administrator shall cease to be eligible in accordance with the provisions of
Section 9.06 and shall fail to resign after written request therefor by the
Depositor or if at any time the Trustee, the Paying Agent or the Securities
Administrator shall become incapable of acting, or shall be adjudged a bankrupt
or insolvent, or a receiver of the Trustee, the Paying Agent or the Securities
Administrator, as applicable, or of its property shall be appointed, or any
public officer shall take charge or control of the Trustee, the Paying Agent or
the Securities Administrator, as applicable, or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, then the Depositor
shall promptly remove the Trustee, or shall be entitled to remove the Paying
Agent or the Securities Administrator, as applicable, and appoint a successor
Trustee or Securities Administrator, as applicable, by written instrument, in
triplicate, one copy of which instrument shall be delivered to each of the
Trustee, the Paying Agent or Securities Administrator, as applicable, so
removed, the successor Trustee or Securities Administrator, as applicable.
(c) The Holders of Certificates evidencing Fractional Undivided
Interests aggregating not less than 51% of the portion of the Trust Fund related
to such Certificates, may at any time remove the Trustee, the Paying Agent or
the Securities Administrator and appoint a successor Trustee, Paying Agent or
Securities Administrator for the related Trust Fund by written instrument or
instruments, in quadruplicate, signed by such Holders or their attorneys-in-fact
duly authorized, one complete set of which instruments shall be delivered to the
Depositor, , the Paying Agent, the Master Servicer, the Securities Administrator
(if the Trustee or Paying Agent is removed), the Trustee (if the Securities
Administrator is removed), and the Trustee or Securities Administrator so
removed and the successor so appointed. In the event that the Trustee, the
Paying Agent or Securities Administrator is removed by the Holders of
Certificates in accordance with this Section 9.08(c), the Holders of such
Certificates shall be responsible for paying any compensation payable to a
successor Trustee, successor Paying Agent or successor Securities Administrator,
in excess of the amount paid to the predecessor Trustee, predecessor Paying
Agent or predecessor Securities Administrator, as applicable.
(d) No resignation or removal of the Trustee, the Paying Agent or the
Securities Administrator and appointment of a successor Trustee, successor
Paying Agent or Securities Administrator pursuant to any of the provisions of
this Section 9.08 shall become effective except upon appointment of and
acceptance of such appointment by the successor Trustee, successor Paying Agent
or Securities Administrator as provided in Section 9.09.
Section 9.09 SUCCESSOR TRUSTEE AND SUCCESSOR SECURITIES ADMINISTRATOR.
(a) Any successor Trustee, Paying Agent or Securities Administrator
appointed as provided in Section 9.08 shall execute, acknowledge and deliver to
the Depositor and to its predecessor Trustee, Paying Agent or Securities
Administrator an instrument accepting such appointment hereunder. The
resignation or removal of the predecessor Trustee, Paying Agent or Securities
Administrator shall then become effective and such successor Trustee, Paying
Agent or Securities Administrator, without any further act, deed or conveyance,
shall become fully vested with all the rights, powers, duties and obligations of
its predecessor hereunder, with like effect as if originally named as Trustee,
Paying Agent or Securities Administrator herein. The predecessor Trustee, Paying
Agent or Securities Administrator shall after payment of its outstanding fees
and expenses promptly deliver to the successor Trustee, Paying Agent or
Securities Administrator, as applicable, all assets and records of the Trust
held by it hereunder, and the Depositor and the predecessor Trustee, Paying
Agent or Securities Administrator, as applicable, shall execute and deliver such
instruments and do such other things as may reasonably be required for more
fully and certainly vesting and confirming in the successor Trustee or
Securities Administrator, as applicable, all such rights, powers, duties and
obligations.
(b) No successor Trustee, Paying Agent or Securities Administrator
shall accept appointment as provided in this Section 9.09 unless at the time of
such acceptance such successor Trustee, Paying Agent or Securities Administrator
shall be eligible under the provisions of Section 9.06.
(c) Upon acceptance of appointment by a successor Trustee, Paying Agent
or Securities Administrator as provided in this Section 9.09, the successor
Trustee, Paying Agent or Securities Administrator shall mail notice of the
succession of such Trustee, Paying Agent or Securities Administrator hereunder
to all Certificateholders at their addresses as shown in the Certificate
Register and to the Rating Agencies. The Company shall pay the cost of any
mailing by the successor Trustee, Paying Agent or Securities Administrator.
Section 9.10 MERGER OR CONSOLIDATION OF TRUSTEE OR SECURITIES
ADMINISTRATOR.
Any state bank or trust company or national banking association into
which the Trustee, the Paying Agent or the Securities Administrator may be
merged or converted or with which it may be consolidated or any state bank or
trust company or national banking association resulting from any merger,
conversion or consolidation to which the Trustee, Paying Agent or the Securities
Administrator, respectively, shall be a party, or any state bank or trust
company or national banking association succeeding to all or substantially all
of the corporate trust business of the Trustee, Paying Agent or the Securities
Administrator, respectively, shall be the successor of the Trustee, Paying Agent
or the Securities Administrator, respectively, hereunder, provided such state
bank or trust company or national banking association shall be eligible under
the provisions of Section 9.06. Such succession shall be valid 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.
Section 9.11 APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
(a) Notwithstanding any other provisions hereof, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust or property constituting the same may at the time be located, the
Depositor and the Trustee acting jointly shall have the power and shall execute
and deliver all instruments to appoint one or more Persons approved by the
Trustee and the Depositor to act as co-trustee or co-trustees, jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust, and to vest in such Person or Persons, in such capacity, such title to
the Trust, or any part thereof, and, subject to the other provisions of this
Section 9.11, such powers, duties, obligations, rights and trusts as the
Depositor and the Trustee may consider necessary or desirable.
(b) If the Depositor shall not have joined in such appointment within
15 days after the receipt by it of a written request so to do, the Trustee shall
have the power to make such appointment without the Depositor.
(c) No co-trustee or separate trustee hereunder shall be required to
meet the terms of eligibility as a successor Trustee under Section 9.06
hereunder and no notice to Certificateholders of the appointment of
co-trustee(s) or separate trustee(s) shall be required under Section 9.08
hereof.
(d) In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 9.11, all rights, powers, duties and obligations
conferred or imposed upon the Trustee and required to be conferred on such
co-trustee shall be conferred or imposed upon and exercised or performed by the
Trustee and such separate trustee or co-trustee jointly, except to the extent
that under any law of any jurisdiction in which any particular act or acts are
to be performed (whether as Trustee hereunder or as successor to the Master
Servicer hereunder), the Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties and obligations
(including the holding of title to the Trust or any portion thereof in any such
jurisdiction) shall be exercised and performed by such separate trustee or
co-trustee at the direction of the Trustee.
(e) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article IX. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Trustee or separately, as
may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
(f) To the extent not prohibited by law, any separate trustee or
co-trustee may, at any time, request the Trustee, its agent or attorney-in-fact,
with full power and authority, to do any lawful act under or with respect to
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor Trustee.
(g) No trustee under this Agreement shall be personally liable by
reason of any act or omission of another trustee under this Agreement. The
Depositor and the Trustee acting jointly may at any time accept the resignation
of or remove any separate trustee or co-trustee.
Section 9.12 FEDERAL INFORMATION RETURNS AND REPORTS TO
CERTIFICATEHOLDERS; REMIC ADMINISTRATION.
(a) For federal income tax purposes, the taxable year of each REMIC
shall be a calendar year and the Securities Administrator shall maintain or
cause the maintenance of the books of each such REMIC on the accrual method of
accounting.
(b) The Securities Administrator shall prepare and file or cause to be
filed with the Internal Revenue Service, and the Trustee shall sign, Federal tax
information returns or elections required to be made hereunder with respect to
each REMIC, the Trust Fund, if applicable, and the Certificates containing such
information and at the times and in the manner as may be required by the Code or
applicable Treasury regulations, and shall furnish to each Holder of
Certificates at any time during the calendar year for which such returns or
reports are made such statements or information at the times and in the manner
as may be required thereby, including, without limitation, reports relating to
interest, original issue discount and market discount or premium (using a
constant prepayment assumption of 40% CPR, in the case of the Group I
Certificates, and 300% PSA, in the case of the Group II Certificates). The
Securities Administrator will apply for an Employee Identification Number from
the Internal Revenue Service under Form SS-4 or any other acceptable method for
all tax entities. In connection with the foregoing, the Securities Administrator
shall timely prepare and file, and the Trustee shall sign, Internal Revenue
Service Form 8811, which shall provide the name and address of the person who
can be contacted to obtain information required to be reported to the holders of
regular interests in each REMIC (the "REMIC Reporting Agent"). The Trustee shall
make elections to treat each REMIC as a REMIC (which elections shall apply to
the taxable period ending December 31, 2005 and each calendar year thereafter)
in such manner as the Code or applicable Treasury regulations may prescribe, and
as described by the Securities Administrator. The Trustee shall sign all tax
information returns filed pursuant to this Section and any other returns as may
be required by the Code. The Holder of the Class I-R-1 Certificates is hereby
designated as the "Tax Matters Person" (within the meaning of Treasury
Regulation Section 1.860F-4(d)) for REMIC I, the Holder of the Class II-R-1
Certificates is hereby designated as the "Tax Matters Person" for REMIC II, the
Holder of the Class I-R-2 Certificates is hereby designated as the "Tax Matters
Person" for REMIC III, and the Holder of the Class I-R-3 Certificates is hereby
designated as the "Tax Matters Person" for REMIC IV. The Securities
Administrator is hereby designated and appointed as the agent of each such Tax
Matters Person. Any Holder of a Residual Certificate will by acceptance thereof
appoint the Securities Administrator as agent and attorney-in-fact for the
purpose of acting as Tax Matters Person for each REMIC during such time as the
Securities Administrator does not own any such Residual Certificate. In the
event that the Code or applicable Treasury regulations prohibit the Trustee from
signing tax or information returns or other statements, or the Securities
Administrator from acting as agent for the Tax Matters Person, the Trustee and
the Securities Administrator shall take whatever action that in their sole good
faith judgment is necessary for the proper filing of such information returns or
for the provision of a Tax Matters Person, including designation of the Holder
of a Residual Certificate to sign such returns or act as Tax Matters Person.
Each Holder of a Residual Certificate shall be bound by this Section.
(c) The Securities Administrator shall provide upon request and receipt
of reasonable compensation such information as required in Section 860D(a)(6)(B)
of the Code to the Internal Revenue Service, to any Person purporting to
transfer a Residual Certificate to a Person other than a transferee permitted by
Section 5.05(b), and to any regulated investment company, real estate investment
trust, common trust fund, partnership, trust, estate, organization described in
Section 1381 of the Code, or nominee holding an interest in a pass-through
entity described in Section 860E(e)(6) of the Code, any record holder of which
is not a transferee permitted by Section 5.05(b) (or which is deemed by statute
to be an entity with a disqualified member).
(d) The Securities Administrator shall prepare and file or cause to be
filed, and the Trustee shall sign, any state income tax returns required under
Applicable State Law with respect to each REMIC or the Trust Fund.
(e) Notwithstanding any other provision of this Agreement, the Trustee
and the Securities Administrator shall comply with all federal withholding
requirements respecting payments to Certificateholders of interest, original
issue discount or principal on the Certificates that the Trustee or the
Securities Administrator reasonably believes are applicable under the Code. The
consent of Certificateholders shall not be required for such withholding. In the
event the Trustee or the Securities Administrator withholds any amount from
interest, original issue discount payments or principal or advances thereof to
any Certificateholder pursuant to Federal withholding requirements, the Trustee
or the Securities Administrator shall, together with their monthly report to
such Certificateholders, indicate such amount withheld.
(f) The Trustee and the Securities Administrator agree to indemnify the
applicable Trust Fund and the Depositor for any taxes and costs including,
without limitation, any reasonable attorneys fees imposed on or incurred by such
Trust Fund, the Depositor or the Master Servicer, as a result of a breach of the
Trustee's covenants and the Securities Administrator's covenants, respectively,
set forth in this Section 9.12; provided, however, such liability and obligation
to indemnify in this paragraph shall not be joint and several, and neither the
Trustee nor the Securities Administrator shall be liable or be obligated to
indemnify either Trust Fund for the failure by the other to perform any duty
under this Agreement or the breach by the other of any covenant in this
Agreement.
ARTICLE X
Termination
Section 10.01 TERMINATION UPON REPURCHASE BY THE DEPOSITOR OR ITS
DESIGNEE OR LIQUIDATION OF THE MORTGAGE LOANS.
(a) Subject to Section 10.02, the respective obligations and
responsibilities of the Depositor, the Trustee, the Paying Agent, the Master
Servicer and the Securities Administrator created hereby with respect to the
Trust Fund (as it relates to one of the Loan Groups) and the related
Certificates, other than the obligation of the Paying Agent to make payments to
related Certificateholders as hereinafter set forth and the indemnification
obligations under Section 7.03 hereof, shall terminate upon:
(i) the repurchase by or at the direction of the Depositor or
its designee of all of the Mortgage Loans in a Loan Group and all related REO
Property remaining in the Loan Group at a price (in each case, the "Termination
Purchase Price") equal to the sum of (a) 100% of the Outstanding Principal
Balance of each such Mortgage Loan (other than a Mortgage Loan related to REO
Property) as of the date of repurchase, net of the principal portion of any
unreimbursed Monthly Advances made by the purchaser, together with interest at
the applicable Mortgage Interest Rate accrued but unpaid to, but not including,
the first day of the month of repurchase, (b) the appraised value of any related
REO Property, less the good faith estimate of the Depositor of liquidation
expenses to be incurred in connection with its disposal thereof (but not more
than the Outstanding Principal Balance of the related Mortgage Loan, together
with interest at the applicable Mortgage Interest Rate accrued on that balance
but unpaid to, but not including, the first day of the month of repurchase),
such appraisal to be calculated by an appraiser mutually agreed upon by the
Depositor and the Trustee at the expense of the Depositor, (c) unreimbursed
out-of pocket costs of the Master Servicer, including unreimbursed servicing
advances and the principal portion of any unreimbursed Monthly Advances, made on
the Mortgage Loans prior to the exercise of such repurchase right and (d) any
unreimbursed costs and expenses of the Trustee and the Securities Administrator
payable pursuant to Section 9.05 and to the Custodian pursuant to the Custodial
Agreement; or
(ii) the later of the making of the final payment or other
liquidation, or any advance with respect thereto, of the last Mortgage Loan
remaining in the Trust Fund or the disposition of all property acquired with
respect to any Mortgage Loan; provided, however, that in the event that an
advance has been made, but not yet recovered, at the time of such termination,
the Person having made such advance shall be entitled to receive,
notwithstanding such termination, any payments received subsequent thereto with
respect to which such advance was made; or
(iii) the payment to the Certificateholders of all amounts
required to be paid to them pursuant to this Agreement.
(b) In no event, however, shall the portion of the Trust Fund
consisting of a Loan Group created hereby continue beyond the earlier of (i) the
related "latest possible maturity date" specified in Section 5.01(d) or (ii) the
expiration of 21 years from the death of the last survivor of the descendants of
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador of the United States to the Court of St.
James's, living on the date of this Agreement.
(c) The right of the Depositor or its designee to repurchase all the
assets of the portion of the Trust Fund relating to a Loan Group as described in
Subsection 10.01(a)(i) above shall be exercisable only if (i) the aggregate
Scheduled Principal Balance of the Mortgage Loans in Loan Group I at the time of
any such repurchase is less than 1% of the Cut-Off Date Balance, and the
aggregate Scheduled Principal Balance of the Mortgage Loans in Loan Group II at
the time of any such repurchase is less than 10% of the Cut-Off Date Balance or
(ii) the Depositor, based upon an Opinion of Counsel addressed to the Depositor,
the Trustee and the Securities Administrator, has determined that the REMIC
status of REMIC I, REMIC II, REMIC III or REMIC IV has been lost or that a
substantial risk exists that such REMIC status will be lost for the then-current
taxable year. At any time thereafter, in the case of (i) or (ii) above, the
Depositor may elect to terminate REMIC I, REMIC II, REMIC III or REMIC IV at any
time, and upon such election, the Depositor or its designee, shall repurchase
all the assets of the Trust Fund described in Subsection 10.01(a)(i) above.
(d) Paying Agent shall give notice of any termination to the related
Certificateholders, with a copy to the Master Servicer, the Securities
Administrator, the Trustee and the Rating Agencies, upon which the
Certificateholders shall surrender their Certificates to the Paying Agent for
payment of the final distribution and cancellation. Such notice shall be given
by letter, mailed not earlier than the l5th day and not later than the 25th day
of the month next preceding the month of such final distribution, and shall
specify (i) the Distribution Date upon which final payment of the related
Certificates will be made upon presentation and surrender of the related
Certificates at the office of the Paying Agent therein designated, (ii) the
amount of any such final payment and (iii) that the Record Date otherwise
applicable to such Distribution Date is not applicable, payments being made only
upon presentation and surrender of the related Certificates at the office of the
Paying Agent therein specified.
(e) If the option of the Depositor to repurchase or cause the
repurchase of all the assets in the portion of the Trust Fund relating to a Loan
Group as described in Subsection 10.01(a)(i) above, is exercised, the Depositor
and/or its designee shall deliver to the Paying Agent for deposit in the
Distribution Account, by the Business Day prior to the applicable Distribution
Date, an amount equal to the related Termination Purchase Price. Upon
presentation and surrender of the related Certificates by the related
Certificateholders, the Paying Agent shall distribute to such Certificateholders
as directed by the Securities Administrator in writing an amount determined as
follows: with respect to each related Certificate (other than the Interest Only
Certificates), the outstanding Current Principal Amount, plus with respect to
each such Certificate, one month's interest thereon at the applicable
Pass-Through Rate. If the proceeds with respect to the related Mortgage Loans
are not sufficient to pay all of the related Senior Certificates in full, any
such deficiency shall be allocated first, to the related Subordinate
Certificates, in inverse order of their numerical designations and then to the
related Senior Certificates on a pro rata basis. Upon deposit of the related
Termination Purchase Price and following such final Distribution Date, the
Trustee shall release promptly to the Depositor and/or its designee the related
Mortgage Files for the remaining Mortgage Loans, and the related portions of the
Accounts with respect thereto shall terminate, subject to the Paying Agent's
obligation to hold any amounts payable to the related Certificateholders in
trust without interest pending final distributions pursuant to Subsection
10.01(g). Any other amounts remaining in the Accounts will belong to the
Depositor.
(f) In the event that this Agreement is wholly or partially terminated
by reason of the payment or liquidation of the related Mortgage Loans or the
disposition of all property acquired with respect to such Mortgage Loans under
Subsection 10.01(a)(ii) above, the Master Servicer shall deliver to the Paying
Agent for deposit in the Distribution Account all related distributable amounts
remaining in the Master Servicer Collection Account. Upon the presentation and
surrender of the related Certificates, the Paying Agent shall distribute to the
remaining related Certificateholders, pursuant to the written direction of the
Securities Administrator and in accordance with their respective interests, all
related distributable amounts remaining in the Distribution Account. Upon
deposit by the Master Servicer of such distributable amounts, and following such
final Distribution Date, the Paying Agent shall release promptly to the
Depositor or its designee the related Mortgage Files for the remaining Mortgage
Loans, and the Master Servicer Collection Account and the Distribution Account
shall terminate with respect to a Loan Group, subject to the Paying Agent's
obligation to hold any amounts payable to the related Certificateholders in
trust without interest pending final distributions pursuant to this Subsection
10.01(f).
(g) If not all of the related Certificateholders shall surrender their
Certificates for cancellation within six months after the time specified in the
above-mentioned written notice, the Paying Agent shall give a second written
notice to the related remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within six months after the second notice, not all the related
Certificates shall have been surrendered for cancellation, the Paying Agent may
take appropriate steps, or appoint any agent to take appropriate steps, to
contact the related remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds and other
assets which remain subject to this Agreement.
Section 10.02 [Reserved].
Section 10.03 ADDITIONAL TERMINATION REQUIREMENTS WITH RESPECT TO THE
CERTIFICATES.
(a) If the option of the Depositor to repurchase all of the Mortgage
Loans and related properties in a Loan Group under Subsection 10.01(a)(i) above
is exercised, the portion of the Trust Fund and each related REMIC shall be
terminated in accordance with the following additional requirements, unless the
Trustee has been furnished with an Opinion of Counsel addressed to the
Securities Administrator and Trustee to the effect that the failure of the Trust
to comply with the requirements of this Section 10.02 will not (i) result in the
imposition of taxes on "prohibited transactions" as defined in Section 860F of
the Code on any REMIC or (ii) cause any REMIC to fail to qualify as a REMIC at
any time that any regular interests are outstanding:
(i) within 90 days prior to the final Distribution Date, at
the written direction of the Depositor, the Securities Administrator, as agent
for the respective Tax Matters Persons, shall adopt a plan of complete
liquidation of each related REMIC in the case of a termination under Subsection
10.01(a)(i), provided to it by the Depositor (a copy of which shall be provided
to the Trustee), which meets the requirements of a "qualified liquidation" under
Section 860F of the Code and any regulations thereunder; and
(ii) the Depositor shall notify the Securities Administrator
and the Trustee at the commencement of such 90-day liquidation period and, at or
prior to the time of making of the final payment on the related Certificates,
the Trustee shall sell or otherwise dispose of all of the remaining assets of
the related portion of the Trust Fund and the related REMIC in accordance with
the terms hereof.
(b) By their acceptance of the Class R Certificates, the related
Holders thereof hereby (i) agree to adopt such a plan of complete liquidation of
the related REMIC upon the written request of the Depositor and to take such
action in connection therewith as may be reasonably requested by the Depositor
and (ii) appoint the Depositor as their attorney-in-fact, with full power of
substitution, for purposes of adopting such a plan of complete liquidation. The
Securities Administrator shall adopt such plan of liquidation by filing the
appropriate statement on the final tax return of each related REMIC. Upon
complete liquidation or final distribution of all of the assets of the related
portion of the Trust Fund, such related portion and each related REMIC shall
terminate.
ARTICLE XI
Miscellaneous Provisions
Section 11.01 INTENT OF PARTIES.
The parties intend that each of REMIC I, REMIC II and REMIC III shall
be treated as a REMIC for federal income tax purposes and that the provisions of
this Agreement should be construed in furtherance of this intent.
Section 11.02 AMENDMENT.
(a) This Agreement may be amended from time to time by the Company, the
Depositor, the Master Servicer, the Securities Administrator and the Trustee,
but without notice to or the consent of any of the related Certificateholders,
to cure any ambiguity, to correct or supplement any provisions herein or therein
that may be defective or inconsistent with any other provisions herein or
therein, to comply with any changes in the Code or to make any other provisions
with respect to matters or questions arising under this Agreement which shall
not be inconsistent with the provisions of this Agreement; provided, however,
that such action shall not, as evidenced by an Opinion of Counsel, addressed to
the Trustee, adversely affect in any material respect the interests of any
related Certificateholder (determined without regard to the Policy) or cause any
REMIC to fail to qualify as a REMIC for federal income tax purposes as evidenced
by an Opinion of Counsel addressed to the Trustee but not at the Trustee's
expense.
(b) With respect to the Certificates, this Agreement may also be
amended from time to time by the Company, the Master Servicer, the Depositor,
the Securities Administrator and the Trustee, and the Holders of Certificates
evidencing Fractional Undivided Interests aggregating not less than 51% of the
applicable Class or Classes, if such amendment affects only such Class or
Classes, for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the related Certificateholders; provided, however, that no
such amendment shall (i) reduce in any manner the amount of, or delay the timing
of, payments received on Mortgage Loans which are required to be distributed on
any Certificate without the consent of the Holder of such Certificate, (ii)
reduce the aforesaid percentage of Certificates the Holders of which are
required to consent to any such amendment, without the consent of the Holders of
all Certificates then outstanding, or (iii) cause any REMIC to fail to qualify
as a REMIC for federal income tax purposes, as evidenced by an Opinion of
Counsel addressed to the Trustee which shall be provided to the Trustee other
than at the Trustee's expense. Notwithstanding any other provision of this
Agreement, for purposes of giving or withholding of consents pursuant to this
first paragraph of Section 11.02(b), Certificates registered in the name of or
held for the benefit of the Depositor, the Securities Administrator, the Master
Servicer, or the Trustee or any Affiliate thereof shall be entitled to vote
their Fractional Undivided Interests with respect to matters affecting such
Certificates.
(c) Promptly after the execution of any such amendment, the Trustee
shall furnish a copy of such amendment or written notification of the substance
of such amendment to each related Certificateholder, with a copy to the Rating
Agencies.
(d) In the case of an amendment under the second paragraph of
Subsection 11.02(b) above, it shall not be necessary for the related
Certificateholders to approve the particular form of such an amendment. Rather,
it shall be sufficient if the related Certificateholders approve the substance
of the amendment. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by related Certificateholders shall be
subject to such reasonable regulations as the Trustee may prescribe.
(e) Prior to the execution of any amendment to this Agreement, the
Trustee shall be entitled to receive and rely upon an Opinion of Counsel
addressed to the Trustee stating that the execution of such amendment is
authorized or permitted by this Agreement. The Trustee and the Securities
Administrator may, but shall not be obligated to, enter into any such amendment
which affects the Trustee's or the Securities Administrator's own respective
rights, duties or immunities under this Agreement.
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 or all of the
Mortgaged Properties are situated, and in any other appropriate public recording
office or elsewhere. The Depositor shall effect such recordation, at the expense
of the Trust upon the request in writing of a Certificateholder, but only if
such direction is accompanied by an Opinion of Counsel (provided at the expense
of the Certificateholder requesting recordation) to the effect that such
recordation would materially and beneficially affect the interests of the
Certificateholders or is required by law.
Section 11.04 LIMITATION ON RIGHTS OF CERTIFICATEHOLDERS.
(a) The death or incapacity of any Certificateholder shall not
terminate this Agreement or the Trust, nor entitle such Certificateholder's
legal representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
(b) Except as expressly provided in this Agreement, no
Certificateholders shall have any right to vote or in any manner otherwise
control the operation and management of the Trust, or the obligations of the
parties hereto, nor shall anything herein set forth, or contained in the terms
of the Certificates, be construed so as to establish the Certificateholders from
time to time as partners or members of an association; nor shall any
Certificateholders be under any liability to any third Person by reason of any
action taken by the parties to this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon, under or with respect to this Agreement against the
Depositor, the Securities Administrator, the Master Servicer or any successor to
any such parties unless (i) such Certificateholder previously shall have given
to the Trustee a written notice of a continuing default, as herein provided,
(ii) the Holders of Certificates evidencing Fractional Undivided Interests
aggregating not less than 51% of the Trust Fund shall have made written request
upon the Trustee to institute such action, suit or proceeding in its own name as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs and expenses and liabilities to be
incurred therein or thereby, and (iii) the Trustee, for 60 days after its
receipt of such notice, request and offer of indemnity, shall have neglected or
refused to institute any such action, suit or proceeding.
(d) No one or more Certificateholders shall have any right by virtue of
any provision of this Agreement to affect the rights of any other
Certificateholders or to obtain or seek to obtain priority or preference over
any other such Certificateholder, or to enforce any right under this Agreement,
except in the manner herein provided and for the equal, ratable and common
benefit of all Certificateholders. For the protection and enforcement of the
provisions of this Section 11.04, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 11.05 ACTS OF CERTIFICATEHOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement to be given or taken by
Certificateholders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Certificateholders in person or by
an agent duly appointed in writing. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is expressly required, to the
Depositor. Proof of execution of any such instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Agreement and
conclusive in favor of the Trustee and the Depositor, if made in the manner
provided in this Section 11.05.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his or her individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his or her authority. The fact and date of the execution of any such
instrument or writing, or the authority of the individual executing the same,
may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Certificates (notwithstanding any notation of
ownership or other writing on such Certificates, except an endorsement in
accordance with Section 5.02 made on a Certificate presented in accordance with
Section 5.04) shall be proved by the Certificate Register, and neither the
Trustee, the Securities Administrator, the Depositor, the Master Servicer nor
any successor to any such parties shall be affected by any notice to the
contrary.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action of the holder of any Certificate shall bind every future
holder of the same Certificate and the holder of every Certificate issued upon
the registration of transfer or exchange thereof, if applicable, or in lieu
thereof with respect to anything done, omitted or suffered to be done by the
Trustee, the Securities Administrator, the Depositor, the Master Servicer or any
successor to any such party in reliance thereon, whether or not notation of such
action is made upon such Certificates.
(e) In determining whether the Holders of the requisite percentage of
Certificates evidencing Fractional Undivided Interests have given any request,
demand, authorization, direction, notice, consent or waiver hereunder,
Certificates owned by the Trustee, the Securities Administrator, the Depositor,
the Master Servicer or any Affiliate thereof shall be disregarded, except as
otherwise provided in Section 11.02(b) and except that, in determining whether
the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Certificates which a
Responsible Officer of the Trustee actually knows to be so owned shall be so
disregarded. Certificates which have been pledged in good faith to the Trustee,
the Securities Administrator, the Depositor, the Master Servicer or any
Affiliate thereof may be regarded as outstanding if the pledgor establishes to
the satisfaction of the Trustee the pledgor's right to act with respect to such
Certificates and that the pledgor is not an Affiliate of the Trustee, the
Securities Administrator, the Depositor, or the Master Servicer, as the case may
be.
Section 11.06 GOVERNING LAW.
THIS AGREEMENT AND THE CERTIFICATES SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS CONFLICT OF LAWS
RULES (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW, WHICH THE
PARTIES HERETO EXPRESSLY RELY UPON IN THE CHOICE OF SUCH LAW AS THE GOVERNING
LAW HEREUNDER) AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 11.07 NOTICES.
All demands and notices hereunder shall be in writing and shall be
deemed given when delivered at (including delivery by facsimile) or mailed by
registered mail, return receipt requested, postage prepaid, or by recognized
overnight courier, to (i) in the case of the Depositor, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Vice President-Servicing, telecopier number:
(▇▇▇) ▇▇▇-▇▇▇▇, or to such other address as may hereafter be furnished to the
other parties hereto in writing; (ii) in the case of the Trustee, at its
Corporate Trust Office, or such other address as may hereafter be furnished to
the other parties hereto in writing; (iii) in the case of the Company, ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Vice President-Servicing,
telecopier number: (▇▇▇) ▇▇▇-▇▇▇▇, or to such other address as may hereafter be
furnished to the other parties hereto in writing; (iv) in the case of the Master
Servicer, Paying Agent, Certificate Registrar (other than in connection with
presentment of Certificates for transfer, exchange or payment) or Securities
Administrator, ▇▇▇▇▇ Fargo Bank, N.A., ▇.▇. ▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (or,
in the case of overnight deliveries, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
21045) (Attention: Corporate Trust Services - Prime 2005-5), facsimile no.:
(▇▇▇) ▇▇▇-▇▇▇▇, or such other address as may hereafter be furnished to the other
parties hereto in writing; (v) in the case of the Rating Agencies, Fitch, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ABS Monitoring
Department, and Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies,
Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or such other address as may be
hereafter furnished to the Depositor, Trustee and Master Servicer in writing by
Fitch. Any notice delivered to the Depositor, the Master Servicer, the
Securities Administrator or the Trustee under this Agreement shall be effective
only upon receipt. Any notice required or permitted to be mailed to a
Certificateholder, unless otherwise provided herein, shall be given by
first-class mail, postage prepaid, at the address of such Certificateholder as
shown in the Certificate Register. Any notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have been duly
given when mailed, whether or not the Certificateholder receives such notice.
Section 11.08 SEVERABILITY OF PROVISIONS.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severed from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the holders thereof.
Section 11.09 SUCCESSORS AND ASSIGNS.
The provisions of this Agreement shall be binding upon and inure to the
benefit of the respective successors and assigns of the parties hereto.
Section 11.10 ARTICLE AND SECTION HEADINGS.
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
Section 11.11 COUNTERPARTS.
This Agreement may be executed in two or more counterparts each of
which when so executed and delivered shall be an original but all of which
together shall constitute one and the same instrument.
Section 11.12 NOTICE TO RATING AGENCIES.
The article and section headings herein are for convenience of
reference only, and shall not limited or otherwise affect the meaning hereof.
The Trustee shall promptly provide notice to each Rating Agency with respect to
each of the following of which a Responsible Officer of the Trustee has actual
knowledge:
1. Any material change or amendment to this Agreement or the Servicing
Agreements;
2. The occurrence of any Event of Default that has not been cured;
3. The resignation or termination of the Master Servicer, the Trustee
or the Securities Administrator;
4. The repurchase or substitution of Mortgage Loans;
5. The final payment to Certificateholders; and
6. Any change in the location of the Master Servicer Collection Account
or the Distribution Account.
IN WITNESS WHEREOF, the Depositor, the Trustee, the Master Servicer and
the Securities Administrator and EMC have caused their names to be signed hereto
by their respective officers thereunto duly authorized as of the day and year
first above written.
STRUCTURED ASSET MORTGAGE
INVESTMENTS II INC., as Depositor
By: ________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION, as
Trustee
By: ________________________________
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
▇▇▇▇▇ FARGO BANK, N.A., as Master
Servicer
By: ________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
▇▇▇▇▇ FARGO BANK, N.A., as
Securities Administrator
By: ________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
EMC MORTGAGE CORPORATION
By: ________________________________
Name:
Title:
Accepted and Agreed as to
Sections 2.01, 2.02, 2.03, 2.04 and 9.09(c)
in its capacity as Seller
EMC MORTGAGE CORPORATION
By: _______________________________
Name:
Title:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 29th day of December, 2005 before me, a notary public in and for
said State, personally appeared ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇., known to me to be a
Vice President of Structured Asset Mortgage Investments II Inc., the corporation
that executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
_______________________________
Notary Public
[Notarial Seal]
STATE OF )
) ss.:
COUNTY OF )
On the 29th day of December, 2005 before me, a notary public in and for
said State, personally appeared ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, known to me to be a Assistant
Vice President of U.S. Bank National Association, the entity that executed the
within instrument, and also known to me to be the person who executed it on
behalf of said entity, and acknowledged to me that such entity executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
_______________________________
Notary Public
Notary Public
[Notarial Seal]
STATE OF MARYLAND )
) ss.:
COUNTY OF ▇▇▇▇▇▇ )
On the 29th day of December, 2005 2005 before me, a notary public in
and for said State, personally appeared ▇▇▇▇▇▇ ▇▇▇▇▇▇, known to me to be an
Assistant Vice President of ▇▇▇▇▇ Fargo Bank, N.A., the entity that executed the
within instrument, and also known to me to be the person who executed it on
behalf of said entity, and acknowledged to me that such entity executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
_______________________________
Notary Public
[Notarial Seal]
STATE OF MARYLAND )
) ss.:
COUNTY OF ▇▇▇▇▇▇ )
On the 29th day of December, 2005 before me, a notary public in and for
said State, personally appeared ____________, known to me to be a(n)
____________ of ▇▇▇▇▇ Fargo Bank, N.A., the entity that executed the within
instrument, and also known to me to be the person who executed it on behalf of
said entity, and acknowledged to me that such entity executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
_______________________________
Notary Public
[Notarial Seal]
STATE OF TEXAS )
) ss.:
COUNTY OF DALLAS )
On the 29th day of December, 2005 before me, a notary public in and for
said State, personally appeared ________________, known to me to be a(n)
________________ of EMC Mortgage Corporation, the corporation that executed the
within instrument, and also known to me to be the person who executed it on
behalf of said corporation, and acknowledged to me that such corporation
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
_______________________________
Notary Public
[Notarial Seal]
STATE OF TEXAS )
) ss.:
COUNTY OF DALLAS )
On the 29th day of December, 2005 before me, a notary public in and for
said State, personally appeared ________________, known to me to be a(n)
_______________ of EMC Mortgage Corporation, the corporation that executed the
within instrument, and also known to me to be the person who executed it on
behalf of said corporation, and acknowledged to me that such corporation
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
_______________________________
Notary Public
[Notarial Seal]
EXHIBIT A-1
FORM OF CLASS [_]-A-[_] CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
[THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DECREASED BY
THE PRINCIPAL PAYMENTS HEREON AND REALIZED LOSSES ALLOCABLE HERETO. ACCORDINGLY,
FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE CURRENT PRINCIPAL AMOUNT
OF THIS CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY
OF THE TRUSTEE NAMED HEREIN.]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO THE TRUSTEE OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED WILL BE REGISTERED IN
THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT WILL BE MADE TO
CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
Certificate No.1 [Adjustable][Fixed][Variable]Pass-Through Rate
Class [_]-[A]-[_] Senior
Date of Pooling and Servicing Agreement and Cut-off Date: Aggregate Initial [Current Principal][Notional] Amount
June 1, 2005 of this Senior Certificate as of the Cut-off Date:
$[_____________]
First Distribution Date: Initial [Current Principal][Notional] Amount of this
January 25, 2006 Senior Certificate as of the Cut-off Date:
$[_____________]
Master Servicer: CUSIP: [____________]
▇▇▇▇▇ Fargo Bank, National Association
Assumed Final Distribution Date:
[____________]
PRIME MORTGAGE TRUST 2005-5
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2005-5
evidencing a fractional undivided interest in the distributions
allocable to the Class [_]-[A]-[_] Certificates with respect to a
portion of a Trust Fund consisting primarily of a pool of fixed rate
mortgage loans secured by first liens on one-to-four family residential
properties sold by STRUCTURED ASSET MORTGAGE INVESTMENTS II INC.
This Certificate is payable solely from the assets of the Trust Fund,
and does not represent an obligation of or interest in Structured Asset Mortgage
Investments II Inc., the Master Servicer or the Trustee referred to below or any
of their affiliates or any other person. Neither this Certificate nor the
underlying Mortgage Loans are guaranteed or insured by any governmental entity
or by Structured Asset Mortgage Investments II Inc., the Master Servicer or the
Trustee or any of their affiliates or any other person. None of Structured Asset
Mortgage Investments II Inc., the Master Servicer or any of their affiliates
will have any obligation with respect to any certificate or other obligation
secured by or payable from payments on the Certificates.
This certifies that Cede & Co. is the registered owner of the
Fractional Undivided Interest evidenced hereby in the beneficial ownership
interest of Certificates of the same Class as this Certificate in a portion of a
trust (the "Trust Fund") primarily consisting of fixed rate mortgage loans
secured by first liens on one- to four- family residential properties
(collectively, the "Mortgage Loans") sold by Structured Asset Mortgage
Investments II Inc. ("▇▇▇▇ ▇▇"). The Mortgage Loans were sold by EMC Mortgage
Corporation ("EMC") to ▇▇▇▇ ▇▇. ▇▇▇▇▇ Fargo Bank, National Association ("▇▇▇▇▇
Fargo") will act as master servicer of the Mortgage Loans (the "Master
Servicer", which term includes any successors thereto under the Agreement
referred to below). The Trust Fund was created pursuant to the Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement"), among EMC Mortgage Corporation, as seller and company (the
"Seller"), ▇▇▇▇ ▇▇, as depositor (the "Depositor"), ▇▇▇▇▇ Fargo Bank, National
Association as master servicer and securities administrator (in such capacity,
the "Securities Administrator") and U.S. Bank National Association as trustee
(the "Trustee"), a summary of certain of the pertinent provisions of which is
set forth hereafter. To the extent not defined herein, capitalized terms used
herein shall have the meaning ascribed to them in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of its acceptance hereof assents and by which such Holder is bound.
[[Interest on this Certificate will accrue during the month prior to
the month in which a Distribution Date (as hereinafter defined) occurs on the
Current Principal Amount hereof at a per annum rate equal to the Pass-Through
Rate set forth above and as further described in the Agreement.] The Trustee
will distribute on the 25th day of each month, or, if such 25th day is not a
Business Day, the immediately following Business Day (each, a "Distribution
Date"), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered at the close of business on the
last Business Day of the calendar month preceding the month of such Distribution
Date, an amount equal to the product of the Fractional Undivided Interest
evidenced by this Certificate and the amount [(of interest and] principal[, if
any)] required to be distributed to the Holders of Certificates of the same
Class as this Certificate. The Assumed Final Distribution Date is the
Distribution Date in the month immediately following the month of the latest
scheduled maturity date of any Mortgage Loan and is not likely to be the date on
which the Current Principal Amount of this Class of Certificates will be reduced
to zero.]
[Interest on this Certificate will accrue from and including the 25th
day of the calendar month preceding the month in which a Distribution Date (as
hereinafter defined) occurs (or, with respect to the first accrual period, the
Closing Date) to and including the 24th day of the calendar month in which that
Distribution Date occurs on the [Current Principal][Notional] Amount hereof at a
per annum rate equal to the Pass-Through Rate set forth above and as further
described in the Agreement. The Trustee will distribute on the 25th day of each
month, or, if such 25th day is not a Business Day, the immediately following
Business Day (each, a "Distribution Date"), commencing on the First Distribution
Date specified above, to the Person in whose name this Certificate is registered
at the close of business on the Business Day immediately preceding such
Distribution Date, an amount equal to the product of the Fractional Undivided
Interest evidenced by this Certificate and the amount (of interest and
principal, if any) required to be distributed to the Holders of Certificates of
the same Class as this Certificate. The Assumed Final Distribution Date is the
Distribution Date in the month immediately following the month of the latest
scheduled maturity date of any Mortgage Loan and is not likely to be the date on
which the [Current Principal][Notional] Amount of this Class of Certificates
will be reduced to zero.]
Distributions on this Certificate will be made by the Trustee by check
mailed to the address of the Person entitled thereto as such name and address
shall appear on the Certificate Register or, if such Person so requests by
notifying the Trustee in writing as specified in the Agreement by wire transfer.
Notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the office or agency
appointed by the Trustee for that purpose and designated in such notice. The
Initial [Current Principal][Notional] Amount of this Certificate is set forth
above. [The Current Principal Amount hereof will be reduced to the extent of
distributions allocable to principal hereon and any Realized Losses allocable
hereto.]
This Certificate is one of a duly authorized issue of Certificates
designated as set forth on the face hereof (the "Certificates"). The
Certificates, in the aggregate, evidence the entire beneficial ownership
interest in the Trust Fund formed pursuant to the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the Trust Fund for payment hereunder and that the
Trustee is not liable to the Certificateholders for any amount payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced hereby, and the rights,
duties and immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer and the Trustee and the rights of the
Certificateholders under the Agreement from time to time by the parties thereto
with the consent of the Holders of Certificates, and with the consent of the
Insurer with respect to amendments related to the Mortgage Pass-Through
Certificates, evidencing Fractional Undivided Interests aggregating not less
than 51% of the portion of the Trust Fund related to such Certificates (or in
certain cases, Holders of Certificates of affected Classes evidencing such
percentage of the Fractional Undivided Interests thereof). Any such consent by
the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable with the Trustee upon
surrender of this Certificate for registration of transfer at the offices or
agencies maintained by the Trustee for such purposes, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Trustee duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates in authorized
denominations representing a like aggregate Fractional Undivided Interest will
be issued to the designated transferee.
The Certificates are issuable only as registered Certificates without
coupons in the Classes and denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, this
Certificate is exchangeable for one or more new Certificates evidencing the same
Class and in the same aggregate Fractional Undivided Interest, as requested by
the Holder surrendering the same.
No service charge will be made to the Certificateholders for any such
registration of transfer, but the Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. The Depositor, the Master Servicer, the Trustee and any agent of any
of them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Trustee or any such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created
thereby (other than the obligations to make payments to Certificateholders with
respect to the termination of the Agreement) shall terminate upon the earlier of
(i) the later of the (A) final payment or other liquidation (or Advance with
respect thereto) of the last Mortgage Loan remaining in the Trust Fund and (B)
disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of any Mortgage Loan and the remittance of all funds due under the
Agreement, or (ii) the optional repurchase by the party named in the Agreement
of all the Mortgage Loans and other assets of the Trust Fund in accordance with
the terms of the Agreement. Such optional repurchase may be made only on or
after the Distribution Date on which the aggregate unpaid principal balance of
the Mortgage Loans is less than the percentage of the aggregate Outstanding
Principal Balance specified in the Agreement of the Mortgage Loans at the
Cut-off Date. The exercise of such right will effect the early retirement of the
Certificates. In no event, however, will the Trust Fund created by the Agreement
continue beyond the earlier of (i) the "latest possible maturity date" specified
in Section 5.01(d) of the Agreement or (ii) the expiration of 21 years after the
death of certain persons identified in the Agreement.
Unless this Certificate has been countersigned by an authorized
signatory of the Trustee by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated: December 29, 2005 ▇▇▇▇▇ FARGO BANK,
NATIONAL ASSOCIATION,
Not in its individual capacity but solely as
Securities Administrator
By:
-----------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Agreement.
▇▇▇▇▇ FARGO BANK,
NATIONAL ASSOCIATION,
Authorized signatory of ▇▇▇▇▇ Fargo Bank,
National Association, not in its individual
capacity but solely as Securities
Administrator
By:
----------------------------------------
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto __________________________________ (Please print or typewrite
name and address including postal zip code of assignee) a Fractional Undivided
Interest evidenced by the within Mortgage Pass-Through Certificate and hereby
authorizes the transfer of registration of such interest to assignee on the
Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
Dated:
-------------------------------------
Signature by or on behalf of assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of _________________________ account number _____________, or, if mailed by
check, to ______________________________. Applicable statements should be mailed
to _____________________________________________.
This information is provided by __________________, the assignee named
above, or ________________________, as its agent.
EXHIBIT A-2
FORM OF CLASS [_]-B-[_] CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR
CERTIFICATES, [AND THE CLASS [_]-B-[_] CERTIFICATES] , AS DESCRIBED IN THE
AGREEMENT (AS DEFINED BELOW).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DECREASED BY
THE PRINCIPAL PAYMENTS HEREON AND ANY REALIZED LOSSES ALLOCABLE HERETO.
ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE CURRENT
PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION
SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
PRINCIPAL AMOUNT BY INQUIRY OF THE TRUSTEE NAMED HEREIN.
[FOR CLASS I-B-1, CLASS I-B-2, CLASS I-B-3, CLASS II-B-1, CLASS II-B-2
AND CLASS I-B-3] [UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED WILL
BE REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT WILL
BE MADE TO CEDE & CO. ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.]
[FOR CLASS I-B-1, CLASS I-B-2, CLASS I-B-3, CLASS II-B-1, CLASS II-B-2
AND CLASS I-B-3] [EACH BENEFICIAL OWNER OF THIS CERTIFICATE OR ANY INTEREST
HEREIN SHALL BE DEEMED TO HAVE REPRESENTED, BY VIRTUE OF ITS ACQUISITION OR
HOLDING OF THIS CERTIFICATE OR INTEREST HEREIN, THAT EITHER (I) IT IS NOT AN
EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED ("PLAN"), OR INVESTING WITH ASSETS OF A PLAN OR (II) IT HAS ACQUIRED AND
IS HOLDING SUCH CERTIFICATE IN RELIANCE ON PROHIBITED TRANSACTION EXEMPTION
90-30, AS AMENDED FROM TIME TO TIME ("EXEMPTION"), AND THAT IT UNDERSTANDS THAT
THERE ARE CERTAIN CONDITIONS TO THE AVAILABILITY OF THE EXEMPTION, INCLUDING
THAT THE CERTIFICATE MUST BE RATED, AT THE TIME OF PURCHASE, NOT LOWER THAN
"BBB-" (OR ITS EQUIVALENT) BY STANDARD & POOR'S, FITCH, INC. OR ▇▇▇▇▇'▇
INVESTORS SERVICE, INC., AND THE CERTIFICATE IS SO RATED OR (III) (1) IT IS AN
INSURANCE COMPANY, (2) THE SOURCE OF FUNDS USED TO ACQUIRE OR HOLD THE
CERTIFICATE OR INTEREST HEREIN IS AN "INSURANCE COMPANY GENERAL ACCOUNT", AS
SUCH TERM IS DEFINED IN PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 95-60,
AND (3) THE CONDITIONS IN SECTIONS I AND III OF PTCE 95-60 HAVE BEEN SATISFIED.]
[FOR CLASS I-B-4, CLASS I-B-5, CLASS I-B-6, CLASS II-B-4, CLASS II-B-5
AND CLASS I-B-6][THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY
STATE SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES
THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED
ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS AND ONLY
(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON
THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN
THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A QIB
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144
UNDER THE SECURITIES ACT (IF AVAILABLE) OR (3) IN CERTIFICATED FORM TO AN
"INSTITUTIONAL ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN RULE
501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE ACT OR ANY ENTITY IN WHICH
ALL OF THE EQUITY OWNERS COME WITHIN SUCH PARAGRAPHS PURCHASING NOT FOR
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, SUBJECT TO (A) THE RECEIPT BY
THE TRUSTEE OF A LETTER SUBSTANTIALLY IN THE FORM PROVIDED IN THE AGREEMENT AND
(B) THE RECEIPT BY THE TRUSTEE OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE TRUSTEE
THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT AND OTHER APPLICABLE LAWS OR IN EACH CASE IN ACCORDANCE WITH ALL
APPLICABLE SECURITIES LAWS OF THE UNITED STATES AND ANY OTHER APPLICABLE
JURISDICTION.]
[FOR CLASS I-B-4, CLASS I-B-5, CLASS I-B-6, CLASS II-B-4, CLASS II-B-5
AND CLASS I-B-6] [THIS CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR INDIRECTLY
BY, OR ON BEHALF OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT
WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED, UNLESS THE TRANSFEREE CERTIFIES OR REPRESENTS THAT THE PROPOSED
TRANSFER AND HOLDING OF A CERTIFICATE AND THE SERVICING, MANAGEMENT AND
OPERATION OF THE TRUST AND ITS ASSETS: (I) WILL NOT RESULT IN ANY PROHIBITED
TRANSACTION WHICH IS NOT COVERED UNDER AN INDIVIDUAL OR CLASS PROHIBITED
TRANSACTION EXEMPTION, INCLUDING, BUT NOT LIMITED TO, PROHIBITED TRANSACTION
EXEMPTION ("PTE") 84-14, ▇▇▇ ▇▇-▇▇, ▇▇▇ ▇▇-▇, ▇▇▇ 95-60 OR PTE 96-23 AND (II)
WILL NOT GIVE RISE TO ANY ADDITIONAL OBLIGATIONS ON THE PART OF THE DEPOSITOR,
THE SECURITIES ADMINISTRATOR, THE MASTER SERVICER OR THE TRUSTEE, WHICH WILL BE
DEEMED REPRESENTED BY AN OWNER OF A BOOK-ENTRY CERTIFICATE OR A GLOBAL
CERTIFICATE OR UNLESS THE OPINION SPECIFIED IN SECTION 5.07 OF THE AGREEMENT IS
PROVIDED.]
Certificate No.1 Pass-Through Rate: ____%
Class [_]-B-[_] Subordinate
Date of Pooling and Servicing Agreement and Cut-off Date: Aggregate Initial Current Principal Amount of this
December 1, 2005 Subordinate Certificate as of the Cut-off Date:
$[_________]
First Distribution Date: Initial Current Principal Amount of this Subordinate
January 25, 2006 Certificate as of the Cut-off Date: $[_________]
Master Servicer: CUSIP: [____________]
▇▇▇▇▇ Fargo Bank, National Association
Assumed Final Distribution Date:
[____________]
PRIME MORTGAGE TRUST 2005-5
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2005-5
evidencing a fractional undivided interest in the distributions
allocable to the Class [_]-B-[_] Certificates with respect to a portion
of a Trust Fund consisting primarily of a pool of fixed rate mortgage
loans secured by first liens on one-to-four family residential
properties sold by STRUCTURED ASSET MORTGAGE INVESTMENTS II INC.
This Certificate is payable solely from the assets of the Trust Fund,
and does not represent an obligation of or interest in Structured Asset Mortgage
Investments II Inc., the Master Servicer or the Trustee referred to below or any
of their affiliates or any other person. Neither this Certificate nor the
underlying Mortgage Loans are guaranteed or insured by any governmental entity
or by Structured Asset Mortgage Investments II Inc., the Master Servicer or the
Trustee or any of their affiliates or any other person. None of Structured Asset
Mortgage Investments II Inc., the Master Servicer or any of their affiliates
will have any obligation with respect to any certificate or other obligation
secured by or payable from payments on the Certificates.
This certifies that [_______] is the registered owner of the Fractional
Undivided Interest evidenced hereby in the beneficial ownership interest of
Certificates of the same Class as this Certificate in a portion of a trust (the
"Trust Fund") primarily consisting of fixed rate mortgage loans secured by first
liens on one- to four- family residential properties (collectively, the
"Mortgage Loans") sold by Structured Asset Mortgage Investments II Inc. ("▇▇▇▇
▇▇"). The Mortgage Loans were sold by EMC Mortgage Corporation ("EMC") to ▇▇▇▇
▇▇. ▇▇▇▇▇ Fargo Bank, National Association ("▇▇▇▇▇ Fargo") will act as master
servicer of the Mortgage Loans (the "Master Servicer", which term includes any
successors thereto under the Agreement referred to below). The Trust Fund was
created pursuant to the Pooling and Servicing Agreement dated as of the Cut-off
Date specified above (the "Agreement"), among EMC as seller and company (the
"Seller"), ▇▇▇▇ ▇▇, as depositor (the "Depositor"), ▇▇▇▇▇ Fargo Bank, National
Association as master servicer and securities administrator (in such capacity,
the "Securities Administrator"), and U.S. Bank National Association as trustee
(the "Trustee"), a summary of certain of the pertinent provisions of which is
set forth hereafter. To the extent not defined herein, capitalized terms used
herein shall have the meaning ascribed to them in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of its acceptance hereof assents and by which such Holder is bound.
Interest on this Certificate will accrue during the month prior to the
month in which a Distribution Date (as hereinafter defined) occurs on the
Current Principal Amount hereof at a per annum rate equal to the Pass-Through
Rate set forth above and as further described in the Agreement. The Trustee will
distribute on the 25th day of each month, or, if such 25th day is not a Business
Day, the immediately following Business Day (each, a "Distribution Date"),
commencing on the First Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the calendar month preceding the month of such Distribution
Date, an amount equal to the product of the Fractional Undivided Interest
evidenced by this Certificate and the amount (of interest and principal, if any)
required to be distributed to the Holders of Certificates of the same Class as
this Certificate. The Assumed Final Distribution Date is the Distribution Date
in the month immediately following the month of the latest scheduled maturity
date of any Mortgage Loan and is not likely to be the date on which the Current
Principal Amount of this Class of Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Trustee by check
mailed to the address of the Person entitled thereto as such name and address
shall appear on the Certificate Register or, if such Person so requests by
notifying the Trustee in writing as specified in the Agreement by wire transfer.
Notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the office or agency
appointed by the Trustee for that purpose and designated in such notice. The
Initial Current Principal Amount of this Certificate is set forth above. The
Current Principal Amount hereof will be reduced to the extent of distributions
allocable to principal hereon and any Realized Losses allocable hereto.
[For Class I-B-4, Class I-B-5, Class I-B-6, Class II-B-4, Class II-B-5
and Class I-B-6][No transfer of this Class [_]-B-[_] Certificate will be made
unless such transfer is (i) exempt from the registration requirements of the
Securities act of 1933, as amended, and any applicable state securities laws or
is made in accordance with said Act and laws and (ii) made in accordance with
Section 5.02 of the Agreement. In the event that such transfer is to be made the
Trustee shall register such transfer if, (i) made to a transferee who has
provided the Trustee with evidence as to its QIB status; or (ii) (A) the
transferor has advised the Trustee in writing that the Certificate is being
transferred to an Institutional Accredited Investor and (B) prior to such
transfer the transferee furnishes to the Trustee an Investment Letter; provided
that if based upon an Opinion of Counsel to the effect that (A) and (B) above
are met sufficient to confirm that such transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act and other applicable laws.]
[For Class I-B-1, Class I-B-2, Class I-B-3, Class II-B-1, Class II-B-2
and Class I-B-3][Each beneficial owner of this Certificate or any interest
herein shall be deemed to have represented, by virtue of its acquisition or
holding of this certificate or interest herein, that either (i) it is not an
employee benefit plan subject to the Employee Retirement Income Security Act of
1974, as amended or section 4975 of the Internal Revenue Code of 1986, as
amended ("Plan"), or investing with assets of a Plan or (ii) it has acquired and
is holding such certificate in reliance on Prohibited Transaction Exemption
90-30, as amended from time to time ("Exemption"), and that it understands that
there are certain conditions to the availability of the Exemption, including
that the certificate must be rated, at the time of purchase, not lower than
"BBB-" (or its equivalent) by Standard & Poor's, Fitch, Inc. or ▇▇▇▇▇'▇
Investors Service, Inc., and the certificate is so rated or (iii) (1) it is an
insurance company, (2) the source of funds used to acquire or hold the
certificate or interest therein is an "insurance company general account", as
such term is defined in Prohibited Transaction Class Exemption ("PTCE") 95-60,
and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied.]
[For Class I-B-4, Class I-B-5, Class I-B-6, Class II-B-4, Class II-B-5
and Class I-B-6][This Certificate may not be acquired directly or indirectly by,
or on behalf of, an employee benefit plan or other retirement arrangement which
is subject to Title I of the Employee Retirement Income Security Act of 1974, as
amended, or Section 4975 of the Internal Revenue Code of 1986, as amended,
unless the transferee certifies or represents that the proposed transfer and
holding of a Certificate and the servicing, management and operation of the
trust and its assets: (i) will not result in any prohibited transaction which is
not covered under an individual or class prohibited transaction exemption,
including, but not limited to, Prohibited Transaction Exemption ("PTE") 84-14,
▇▇▇ ▇▇-▇▇, ▇▇▇ ▇▇-▇, ▇▇▇ ▇▇-▇▇ or PTE 96-23 and (ii) will not give rise to any
additional obligations on the part of the Depositor, the Securities
Administrator, the Master Servicer or the Trustee, which will be deemed
represented by an owner of a Book-Entry Certificate or a Global Certificate or
unless the opinion specified in section 5.07 of the Agreement is provided.]
This Certificate is one of a duly authorized issue of Certificates
designated as set forth on the face hereof (the "Certificates"). The
Certificates, in the aggregate, evidence the entire beneficial ownership
interest in the Trust Fund formed pursuant to the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the Trust Fund for payment hereunder and that the
Trustee is not liable to the Certificateholders for any amount payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced hereby, and the rights,
duties and immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer and the Trustee and the rights of the
Certificateholders under the Agreement from time to time by the parties thereto
with the consent of the Holders of Certificates, and with the consent of the
Insurer with respect to amendments related to the Mortgage Pass-Through
Certificates, evidencing Fractional Undivided Interests aggregating not less
than 51% of the portion of the Trust Fund related to such Certificates (or in
certain cases, Holders of Certificates of affected Classes evidencing such
percentage of the Fractional Undivided Interests thereof). Any such consent by
the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable with the Trustee upon
surrender of this Certificate for registration of transfer at the offices or
agencies maintained by the Trustee for such purposes, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Trustee duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates in authorized
denominations representing a like aggregate Fractional Undivided Interest will
be issued to the designated transferee.
The Certificates are issuable only as registered Certificates without
coupons in the Classes and denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, this
Certificate is exchangeable for one or more new Certificates evidencing the same
Class and in the same aggregate Fractional Undivided Interest, as requested by
the Holder surrendering the same.
No service charge will be made to the Certificateholders for any such
registration of transfer, but the Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. The Depositor, the Master Servicer, the Trustee and any agent of any
of them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Trustee or any such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created
thereby (other than the obligations to make payments to Certificateholders with
respect to the termination of the Agreement) shall terminate upon the earlier of
(i) the later of the (A) final payment or other liquidation (or Advance with
respect thereto) of the last Mortgage Loan remaining in the Trust Fund and (B)
disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of any Mortgage Loan and the remittance of all funds due under the
Agreement, or (ii) the optional repurchase by the party named in the Agreement
of all the Mortgage Loans and other assets of the Trust Fund in accordance with
the terms of the Agreement. Such optional repurchase may be made only on or
after the Distribution Date on which the aggregate unpaid principal balance of
the Mortgage Loans is less than the percentage of the aggregate Outstanding
Principal Balance specified in the Agreement of the Mortgage Loans at the
Cut-off Date. The exercise of such right will effect the early retirement of the
Certificates. In no event, however, will the Trust Fund created by the Agreement
continue beyond the earlier of (i) the "latest possible maturity date" specified
in Section 5.01(d) of the Agreement or (ii) the expiration of 21 years after the
death of certain persons identified in the Agreement.
Unless this Certificate has been countersigned by an authorized
signatory of the Trustee by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated: December 29, 2005 ▇▇▇▇▇ FARGO BANK,
NATIONAL ASSOCIATION,
Not in its individual capacity but solely as
Securities Administrator
By:
-----------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Agreement.
▇▇▇▇▇ FARGO BANK,
NATIONAL ASSOCIATION,
Authorized signatory of ▇▇▇▇▇ Fargo Bank,
National Association, not in its individual
capacity but solely as Securities
Administrator
By:
-----------------------------------------
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto __________________________________ (Please print or typewrite
name and address including postal zip code of assignee) a Fractional Undivided
Interest evidenced by the within Mortgage Pass-Through Certificate and hereby
authorizes the transfer of registration of such interest to assignee on the
Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
Dated:
--------------------------------------------
Signature by or on behalf of assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of _________________________ account number _____________, or, if mailed by
check, to ______________________________. Applicable statements should be mailed
to ______________________________________________.
This information is provided by __________________, the assignee named
above, or ________________________, as its agent.
EXHIBIT A-3
FORM OF CLASS [__]-PO CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DECREASED BY
THE PRINCIPAL PAYMENTS HEREON AND REALIZED LOSSES ALLOCABLE HERETO. ACCORDINGLY,
FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE CURRENT PRINCIPAL AMOUNT
OF THIS CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY
OF THE TRUSTEE NAMED HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO THE TRUSTEE OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED WILL BE REGISTERED IN
THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT WILL BE MADE TO
CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
Certificate No.1 Pass-Through Rate: 0.000%
Class [__]-PO Senior
Date of Pooling and Servicing Agreement and Cut-off Date: Aggregate Initial Current Principal Amount of this
December 1, 2005 Senior Certificate as of the Cut-off Date:
$[_____________]
First Distribution Date: Initial Current Principal Amount of this Senior
January 25, 2006 Certificate as of the Cut-off Date: $[_____________]
Master Servicer: CUSIP: [____________]
▇▇▇▇▇ Fargo Bank, National Association
Assumed Final Distribution Date:
[____________]
PRIME MORTGAGE TRUST 2005-5
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2005-5
evidencing a fractional undivided interest in the distributions
allocable to the Class [__]-PO Certificates with respect to a portion
of a Trust Fund consisting primarily of a pool of fixed rate mortgage
loans secured by first liens on one-to-four family residential
properties sold by STRUCTURED ASSET MORTGAGE INVESTMENTS II INC.
This Certificate is payable solely from the assets of the Trust Fund,
and does not represent an obligation of or interest in Structured Asset Mortgage
Investments II Inc., the Master Servicer or the Trustee referred to below or any
of their affiliates or any other person. Neither this Certificate nor the
underlying Mortgage Loans are guaranteed or insured by any governmental entity
or by Structured Asset Mortgage Investments II Inc., the Master Servicer or the
Trustee or any of their affiliates or any other person. None of Structured Asset
Mortgage Investments II Inc., the Master Servicer or any of their affiliates
will have any obligation with respect to any certificate or other obligation
secured by or payable from payments on the Certificates.
This certifies that Cede & Co. is the registered owner of the
Fractional Undivided Interest evidenced hereby in the beneficial ownership
interest of Certificates of the same Class as this Certificate in a portion of a
trust (the "Trust Fund") primarily consisting of fixed rate mortgage loans
secured by first liens on one- to four- family residential properties
(collectively, the "Mortgage Loans") sold by Structured Asset Mortgage
Investments II Inc. ("▇▇▇▇ ▇▇"). The Mortgage Loans were sold by EMC Mortgage
Corporation ("EMC") to ▇▇▇▇ ▇▇. ▇▇▇▇▇ Fargo Bank, National Association ("▇▇▇▇▇
Fargo") will act as master servicer of the Mortgage Loans (the "Master
Servicer", which term includes any successors thereto under the Agreement
referred to below). The Trust Fund was created pursuant to the Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement"), among EMC Mortgage Corporation, as seller and company (the
"Seller"), ▇▇▇▇ ▇▇, as depositor (the "Depositor"), ▇▇▇▇▇ Fargo Bank, National
Association as master servicer and securities administrator (in such capacity,
the "Securities Administrator") and U.S. Bank National Association as trustee
(the "Trustee"), a summary of certain of the pertinent provisions of which is
set forth hereafter. To the extent not defined herein, capitalized terms used
herein shall have the meaning ascribed to them in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of its acceptance hereof assents and by which such Holder is bound.
The Trustee will distribute on the 25th day of each month, or, if such
25th day is not a Business Day, the immediately following Business Day (each, a
"Distribution Date"), commencing on the First Distribution Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the calendar month preceding the month of
such Distribution Date, an amount equal to the product of the Fractional
Undivided Interest evidenced by this Certificate and the amount of principal
required to be distributed to the Holders of Certificates of the same Class as
this Certificate. The Assumed Final Distribution Date is the Distribution Date
in the month immediately following the month of the latest scheduled maturity
date of any Mortgage Loan and is not likely to be the date on which the Current
Principal Amount of this Class of Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Trustee by check
mailed to the address of the Person entitled thereto as such name and address
shall appear on the Certificate Register or, if such Person so requests by
notifying the Trustee in writing as specified in the Agreement by wire transfer.
Notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the office or agency
appointed by the Trustee for that purpose and designated in such notice. The
Initial Current Principal Amount of this Certificate is set forth above. The
Current Principal Amount hereof will be reduced to the extent of distributions
allocable to principal hereon and any Realized Losses allocable hereto.
This Certificate is one of a duly authorized issue of Certificates
designated as set forth on the face hereof (the "Certificates"). The
Certificates, in the aggregate, evidence the entire beneficial ownership
interest in the Trust Fund formed pursuant to the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the Trust Fund for payment hereunder and that the
Trustee is not liable to the Certificateholders for any amount payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced hereby, and the rights,
duties and immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer and the Trustee and the rights of the
Certificateholders under the Agreement from time to time by the parties thereto
with the consent of the Holders of Certificates, and with the consent of the
Insurer with respect to amendments related to the Mortgage Pass-Through
Certificates, evidencing Fractional Undivided Interests aggregating not less
than 51% of the portion of the Trust Fund related to such Certificates (or in
certain cases, Holders of Certificates of affected Classes evidencing such
percentage of the Fractional Undivided Interests thereof). Any such consent by
the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable with the Trustee upon
surrender of this Certificate for registration of transfer at the offices or
agencies maintained by the Trustee for such purposes, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Trustee duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates in authorized
denominations representing a like aggregate Fractional Undivided Interest will
be issued to the designated transferee.
The Certificates are issuable only as registered Certificates without
coupons in the Classes and denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, this
Certificate is exchangeable for one or more new Certificates evidencing the same
Class and in the same aggregate Fractional Undivided Interest, as requested by
the Holder surrendering the same.
No service charge will be made to the Certificateholders for any such
registration of transfer, but the Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. The Depositor, the Master Servicer, the Trustee and any agent of any
of them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Trustee or any such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created
thereby (other than the obligations to make payments to Certificateholders with
respect to the termination of the Agreement) shall terminate upon the earlier of
(i) the later of the (A) final payment or other liquidation (or Advance with
respect thereto) of the last Mortgage Loan remaining in the Trust Fund and (B)
disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of any Mortgage Loan and the remittance of all funds due under the
Agreement, or (ii) the optional repurchase by the party named in the Agreement
of all the Mortgage Loans and other assets of the Trust Fund in accordance with
the terms of the Agreement. Such optional repurchase may be made only on or
after the Distribution Date on which the aggregate unpaid principal balance of
the Mortgage Loans is less than the percentage of the aggregate Outstanding
Principal Balance specified in the Agreement of the Mortgage Loans at the
Cut-off Date. The exercise of such right will effect the early retirement of the
Certificates. In no event, however, will the Trust Fund created by the Agreement
continue beyond the earlier of (i) the "latest possible maturity date" specified
in Section 5.01(d) of the Agreement or (ii) the expiration of 21 years after the
death of certain persons identified in the Agreement.
Unless this Certificate has been countersigned by an authorized
signatory of the Trustee by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated: December 29, 2005 ▇▇▇▇▇ FARGO BANK,
NATIONAL ASSOCIATION,
Not in its individual capacity but solely as
Securities Administrator
By:
-----------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Agreement.
▇▇▇▇▇ FARGO BANK,
NATIONAL ASSOCIATION,
Authorized signatory of ▇▇▇▇▇ Fargo Bank,
National Association, not in its individual
capacity but solely as Securities
Administrator
By:
-----------------------------------------
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto __________________________________ (Please print or typewrite
name and address including postal zip code of assignee) a Fractional Undivided
Interest evidenced by the within Mortgage Pass-Through Certificate and hereby
authorizes the transfer of registration of such interest to assignee on the
Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
Dated:
--------------------------------------------
Signature by or on behalf of assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of _________________________ account number _____________, or, if mailed by
check, to ______________________________. Applicable statements should be mailed
to _____________________________________________.
This information is provided by __________________, the assignee named
above, or ________________________, as its agent.
EXHIBIT A-4
FORM OF CLASS I-R-[__] CERTIFICATE
THIS CERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A NON-UNITED
STATES PERSON, A PUBLICLY TRADED PARTNERSHIP OR A DISQUALIFIED ORGANIZATION (AS
DEFINED BELOW).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR INDIRECTLY BY, OR ON
BEHALF OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT WHICH IS
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED, AND/OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED,
UNLESS THE PROPOSED TRANSFEREE PROVIDES THE TRUSTEE WITH AN OPINION OF COUNSEL
ADDRESSED TO THE TRUSTEE, DEPOSITOR, MASTER SERVICER AND SECURITIES
ADMINISTRATOR AND ON WHICH THEY MAY RELY THAT IS SATISFACTORY TO THE TRUSTEE
THAT THE PURCHASE OF CERTIFICATES ON BEHALF OF SUCH PERSON WILL NOT RESULT IN OR
CONSTITUTE A NONEXEMPT PROHIBITED TRANSACTION, IS PERMISSIBLE UNDER APPLICABLE
LAW AND WILL NOT GIVE RISE TO ANY ADDITIONAL OBLIGATIONS ON THE PART OF THE
DEPOSITOR, THE MASTER SERVICER, THE SECURITIES ADMINISTRATOR OR THE TRUSTEE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE
MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE
TRUSTEE THAT (1) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR
POLITICAL SUBDIVISION THEREOF, ANY POSSESSION OF THE UNITED STATES, OR ANY
AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY
WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT TO TAX AND EXCEPT
FOR THE ▇▇▇▇▇▇▇ MAC, A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT SELECTED BY
SUCH GOVERNMENTAL UNIT), (B) A FOREIGN GOVERNMENT, ANY INTERNATIONAL
ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF EITHER OF THE FOREGOING, (C)
ANY ORGANIZATION (OTHER THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION
521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE
UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE
CODE (INCLUDING THE TAX IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS
TAXABLE INCOME), (D) RURAL ELECTRIC AND TELEPHONE COOPERATIVES DESCRIBED IN
SECTION 1381(A)(2)(C) OF THE CODE, (E) AN ELECTING LARGE PARTNERSHIP UNDER
SECTION 775(A) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES
(A), (B), (C), (D) OR (E) BEING HEREIN REFERRED TO AS A "DISQUALIFIED
ORGANIZATION"), OR (F) AN AGENT OF A DISQUALIFIED ORGANIZATION, (2) NO PURPOSE
OF SUCH TRANSFER IS TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX AND (3) SUCH
TRANSFEREE SATISFIES CERTAIN ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL
CONDITION OF THE PROPOSED TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE
CERTIFICATE REGISTER OR ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS
CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR AN AGENT OF A DISQUALIFIED
ORGANIZATION, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF
DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF THIS CERTIFICATE BY ACCEPTANCE
OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS
PARAGRAPH.
Certificate No.1 Pass-Through Rate: _____%
Class I-R-[__]
Date of Pooling and Servicing Agreement and Cut-off Date: Aggregate Initial Current Principal Amount of this
December 1, 2005 Certificate as of the Cut-off Date:
$___________
First Distribution Date: Initial Current Principal Amount of this Certificate as
January 25, 2006 of the Cut-off Date: $_________
Master Servicer: CUSIP: [_____________]
▇▇▇▇▇ Fargo Bank, National Association
Assumed Final Distribution Date:
[____________]
PRIME MORTGAGE TRUST 2005-5
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2005-5
evidencing a fractional undivided interest in the distributions
allocable to the Class I-R-[__] Certificates with respect to a portion
of a Trust Fund (as defined below) consisting primarily of a pool of
fixed rate mortgage loans secured by first liens on one-to-four family
residential properties sold by STRUCTURED ASSET MORTGAGE INVESTMENTS II
INC.
This Certificate is payable solely from the assets of the Trust Fund,
and does not represent an obligation of or interest in Structured Asset Mortgage
Investments II Inc., the Master Servicer or the Trustee referred to below or any
of their affiliates or any other person. Neither this Certificate nor the
underlying Mortgage Loans are guaranteed or insured by any governmental entity
or by Structured Asset Mortgage Investments II Inc., the Master Servicer or the
Trustee or any of their affiliates or any other person. None of Structured Asset
Mortgage Investments II Inc., the Master Servicer or any of their affiliates
will have any obligation with respect to any certificate or other obligation
secured by or payable from payments on the Certificates.
This certifies that Bear, ▇▇▇▇▇▇▇ Securities Corp. is the registered
owner of the Fractional Undivided Interest evidenced hereby in the beneficial
ownership interest of Certificates of the same Class as this Certificate in a
portion of a trust (the "Trust Fund") primarily consisting of fixed rate
mortgage loans secured by first liens on one- to four- family residential
properties (collectively, the "Mortgage Loans") sold by Structured Asset
Mortgage Investments II Inc. ("▇▇▇▇ ▇▇"). The Mortgage Loans were sold by EMC
Mortgage Corporation ("EMC") to ▇▇▇▇ ▇▇. ▇▇▇▇▇ Fargo Bank, National Association
("▇▇▇▇▇ Fargo") will act as master servicer of the Mortgage Loans (the "Master
Servicer", which term includes any successors thereto under the Agreement
referred to below). The Trust Fund was created pursuant to the Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement'), among ▇▇▇▇ ▇▇, as depositor (the "Depositor"), ▇▇▇▇▇ Fargo Bank,
National Association as Master Servicer and securities administrator (in such
capacity, the "Securities Administrator"), EMC Mortgage Corporation, as seller
and company, and U.S. Bank National Association, as trustee (the "Trustee"), a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, capitalized terms used herein shall have the
meaning ascribed to them in the Agreement. This Certificate is issued under and
is subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of its acceptance hereof
assents and by which such Holder is bound.
Interest on this Certificate will accrue during the month prior to the
month in which a Distribution Date (as hereinafter defined) occurs on the
Current Principal Amount hereof at a per annum rate equal to the Pass-Through
Rate set forth above and as further described in the Agreement. The Trustee will
distribute on the 25th day of each month, or, if such 25th day is not a Business
Day, the immediately following Business Day (each, a "Distribution Date"),
commencing on the First Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the calendar month preceding the month of such Distribution
Date, an amount equal to the product of the Fractional Undivided Interest
evidenced by this Certificate and the amount (of interest and principal, if any)
required to be distributed to the Holders of Certificates of the same Class as
this Certificate. The Assumed Final Distribution Date is the Distribution Date
in the month immediately following the month of the latest scheduled maturity
date of any Mortgage Loan and is not likely to be the date on which the Current
Principal Amount of this Class of Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Trustee by check
mailed to the address of the Person entitled thereto as such name and address
shall appear on the Certificate Register or, if such Person so requests by
notifying the Trustee in writing as specified in the Agreement by wire transfer.
Notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the office or agency
appointed by the Trustee for that purpose and designated in such notice. The
Initial Current Principal Amount of this Certificate is set forth above. The
Current Principal Amount hereof will be reduced to the extent of distributions
allocable to principal hereon and any Realized Losses allocable hereto.
Each Holder of this Certificate will be deemed to have agreed to be
bound by the restrictions set forth in the Agreement to the effect that (i) each
person holding or acquiring any Ownership Interest in this Certificate must be a
United States Person and a Permitted Transferee, (ii) the transfer of any
Ownership Interest in this Certificate will be conditioned upon the delivery to
▇▇▇▇ ▇▇, the Trustee and the Securities Administrator of, among other things, an
affidavit to the effect that it is a United States Person and Permitted
Transferee, (iii) any attempted or purported transfer of any Ownership Interest
in this Certificate in violation of such restrictions will be absolutely null
and void and will vest no rights in the purported transferee, and (iv) if any
person other than a United States Person and a Permitted Transferee acquires any
Ownership Interest in this Certificate in violation of such restrictions, then
the Depositor will have the right, in its sole discretion and without notice to
the Holder of this Certificate, to sell this Certificate to a purchaser selected
by the Depositor, which purchaser may be the Depositor, or any affiliate of the
Depositor, on such terms and conditions as the Depositor may choose.
This certificate may not be acquired directly or indirectly by, or on
behalf of, an employee benefit plan or other retirement arrangement which is
subject to title I of the Employee Retirement Income Security Act of 1974, as
amended, and/or section 4975 of the Internal Revenue Code of 1986, as amended,
unless the proposed transferee provides the Trustee with an opinion of counsel
addressed to the Trustee, Master Servicer and the Securities Administrator and
on which they may rely (which shall not be at the expense of the Trustee, Master
Servicer or the Securities Administrator) which is acceptable to the Trustee,
that the purchase of this Certificate will not result in or constitute a
nonexempt prohibited transaction, is permissible under applicable law and will
not give rise to any additional fiduciary obligations on the part of the
Depositor, the Master Servicer or the Trustee.
This Certificate is one of a duly authorized issue of Certificates
designated as set forth on the face hereof (the "Certificates").. The
Certificates, in the aggregate, evidence the entire beneficial ownership
interest in the Trust Fund formed pursuant to the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the Trust Fund for payment hereunder and that the
Trustee is not liable to the Certificateholders for any amount payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced hereby, and the rights,
duties and immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer and the Trustee and the rights of the
Certificateholders under the Agreement from time to time by the parties thereto
with the consent of the Holders of Certificates, and with the consent of the
Insurer with respect to amendments related to the Mortgage Pass-Through
Certificates, evidencing Fractional Undivided Interests aggregating not less
than 51% of the portion of the Trust Fund related to such Certificates (or in
certain cases, Holders of Certificates of affected Classes evidencing such
percentage of the Fractional Undivided Interests thereof). Any such consent by
the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable with the Trustee upon
surrender of this Certificate for registration of transfer at the offices or
agencies maintained by the Trustee for such purposes, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Trustee duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates in authorized
denominations representing a like aggregate Fractional Undivided Interest will
be issued to the designated transferee.
The Certificates are issuable only as registered Certificates without
coupons in the Classes and denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, this
Certificate is exchangeable for one or more new Certificates evidencing the same
Class and in the same aggregate Fractional Undivided Interest, as requested by
the Holder surrendering the same.
No service charge will be made to the Certificateholders for any such
registration of transfer, but the Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. The Depositor, the Master Servicer, the Trustee and any agent of any
of them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Trustee or any such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created
thereby (other than the obligations to make payments to Certificateholders with
respect to the termination of the Agreement) shall terminate upon the earlier of
(i) the later of the (A) final payment or other liquidation (or Advance with
respect thereto) of the last Mortgage Loan remaining in the Trust Fund and (B)
disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of any Mortgage Loan and the remittance of all funds due under the
Agreement, or (ii) the optional repurchase by the party named in the Agreement
of all the Mortgage Loans and other assets of the Trust Fund in accordance with
the terms of the Agreement. Such optional repurchase may be made only on or
after the Distribution Date on which the aggregate unpaid principal balance of
the Mortgage Loans is less than the percentage of the aggregate Outstanding
Principal Balance specified in the Agreement of the Mortgage Loans at the
Cut-off Date. The exercise of such right will effect the early retirement of the
Certificates. In no event, however, will the Trust Fund created by the Agreement
continue beyond the earlier of (i) the "latest possible maturity date" specified
in Section 5.01(d) of the Agreement or (ii) the expiration of 21 years after the
death of certain persons identified in the Agreement.
Unless this Certificate has been countersigned by an authorized
signatory of the Trustee by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated: December 29, 2005 ▇▇▇▇▇ FARGO BANK,
NATIONAL ASSOCIATION,
Not in its individual capacity but solely as
Securities Administrator
By:
----------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Agreement.
▇▇▇▇▇ FARGO BANK,
NATIONAL ASSOCIATION,
Authorized signatory of ▇▇▇▇▇ Fargo Bank,
National Association, not in its individual
capacity but solely as Securities
Administrator
By:
-----------------------------------------
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto __________________________________ (Please print or typewrite
name and address including postal zip code of assignee) a Fractional Undivided
Interest evidenced by the within Mortgage Pass-Through Certificate and hereby
authorizes the transfer of registration of such interest to assignee on the
Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
Dated:
--------------------------------------------
Signature by or on behalf of assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of _________________________ account number _____________, or, if mailed by
check, to ______________________________. Applicable statements should be mailed
to _____________________________________________.
This information is provided by __________________, the assignee named
above, or ________________________, as its agent.
EXHIBIT A-5
FORM OF CLASS II-R-1 CERTIFICATE
THIS CERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A NON-UNITED
STATES PERSON, A PUBLICLY TRADED PARTNERSHIP OR A DISQUALIFIED ORGANIZATION (AS
DEFINED BELOW).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR INDIRECTLY BY, OR ON
BEHALF OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT WHICH IS
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED,
UNLESS THE PROPOSED TRANSFEREE PROVIDES THE TRUSTEE WITH AN OPINION OF COUNSEL
FOR THE BENEFIT OF THE DEPOSITOR, MASTER SERVICER, THE CERTIFICATE REGISTRAR AND
THE SECURITIES ADMINISTRATOR AND ON WHICH THEY MAY RELY (WHICH SHALL NOT BE AT
THE EXPENSE OF THE TRUSTEE) WHICH IS ACCEPTABLE TO THE TRUSTEE, THAT THE
PURCHASE OF THIS CERTIFICATE WILL NOT RESULT IN OR CONSTITUTE A NONEXEMPT
PROHIBITED TRANSACTION, IS PERMISSIBLE UNDER APPLICABLE LAW AND WILL NOT GIVE
RISE TO ANY ADDITIONAL OBLIGATIONS ON THE PART OF THE SELLER, THE MASTER
SERVICER, ANY SERVICER, THE SECURITIES ADMINISTRATOR, THE CERTIFICATE REGISTRAR
OR THE TRUSTEE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE
MADE ONLY IF THE PROPOSED TRANSFEREE OBTAINS THE PRIOR WRITTEN CONSENT OF
STRUCTURED ASSET MORTGAGE INVESTMENTS II INC. AND THE SECURITIES ADMINISTRATOR
AND PROVIDES A TRANSFER AFFIDAVIT TO STRUCTURED ASSET MORTGAGE INVESTMENTS II
INC., THE SECURITIES ADMINISTRATOR AND THE TRUSTEE THAT (1) SUCH TRANSFEREE IS
NOT (A) THE UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY
FOREIGN GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR
INSTRUMENTALITY OF ANY OF THE FOREGOING, (B) ANY ORGANIZATION (OTHER THAN A
COOPERATIVE DESCRIBED IN SECTION 521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX
IMPOSED BY CHAPTER 1 OF THE CODE UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX
IMPOSED BY SECTION 511 OF THE CODE, (C) ANY ORGANIZATION DESCRIBED IN SECTION
1381(A)(2)(C) OF THE CODE, (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES
(A), (B) OR (C) BEING HEREIN REFERRED TO AS A "DISQUALIFIED ORGANIZATION") OR
(D) AN AGENT OF A DISQUALIFIED ORGANIZATION, (2) NO PURPOSE OF SUCH TRANSFER IS
TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX AND (3) SUCH TRANSFEREE SATISFIES
CERTAIN ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE
PROPOSED TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE
REGISTER OR ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CERTIFICATE TO A
DISQUALIFIED ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH
REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND
SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE
HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE. EACH HOLDER OF THIS CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE
SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS PARAGRAPH.
Certificate No.1 Variable Pass-Through Rate
Class II-R-1
Date of Pooling and Servicing Agreement and Cut-off Date: Aggregate Initial Current Principal Amount of this
December 1, 2005 Certificate as of the Cut-off Date: $100
First Distribution Date: Initial Current Principal Amount of this Certificate as
January 25, 2006 of the Cut-off Date: $100
Master Servicer: CUSIP: [_______]
▇▇▇▇▇ Fargo Bank, National Association
Assumed Final Distribution Date:
[__________]
PRIME MORTGAGE TRUST 2005-5
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2005-5
evidencing a fractional undivided interest in the distributions
allocable to the Class II-R-1 Certificates with respect to a portion of
a Trust Fund (as defined below) consisting primarily of a pool of fixed
rate mortgage loans secured by first liens on one-to-four family
residential properties sold by STRUCTURED ASSET MORTGAGE INVESTMENTS II
INC.
This Certificate is payable solely from the assets of the Trust Fund,
and does not represent an obligation of or interest in Structured Asset Mortgage
Investments II Inc., the Master Servicer, the Securities Administrator or the
Trustee referred to below or any of their affiliates or any other person.
Neither this Certificate nor the underlying Mortgage Loans are guaranteed or
insured by any governmental entity or by Structured Asset Mortgage Investments
II Inc., the Master Servicer, the Securities Administrator or the Trustee or any
of their affiliates or any other person. None of the Structured Asset Mortgage
Investments II Inc., the Master Servicer or any of their affiliates will have
any obligation with respect to any certificate or other obligation secured by or
payable from payments on the Certificates.
This certifies that Bear, ▇▇▇▇▇▇▇ Securities Corp. is the registered
owner of the Fractional Undivided Interest evidenced hereby in the beneficial
ownership interest of Certificates of the same Class as this Certificate in a
portion of a trust (the "Trust Fund") primarily consisting of fixed rate
mortgage loans secured by first liens on one- to four- family residential
properties (collectively, the "Mortgage Loans") sold by Structured Asset
Mortgage Investments II Inc. ("▇▇▇▇ ▇▇"). The Mortgage Loans were sold by EMC
Mortgage Corporation ("EMC") to ▇▇▇▇ ▇▇. ▇▇▇▇▇ Fargo Bank, National Association
("▇▇▇▇▇ Fargo") will act as master servicer of the Mortgage Loans and as
securities administrator (the "Master Servicer" and the "Securities
Administrator, which terms includes any successors thereto under the Agreement
referred to below). The Trust Fund was created pursuant to the Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement"), among ▇▇▇▇ ▇▇, as depositor (the "Depositor"), ▇▇▇▇▇ Fargo Bank,
National Association as Master Servicer and securities administrator (in such
capacity, the "Securities Administrator"), EMC Mortgage Corporation, as seller
and company, and U.S. Bank National Association, as trustee (the "Trustee"), a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, capitalized terms used herein shall have the
meaning ascribed to them in the Agreement. This Certificate is issued under and
is subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of its acceptance hereof
assents and by which such Holder is bound.
Interest on this Certificate will accrue during the month prior to the
month in which a Distribution Date (as hereinafter defined) occurs on the
Current Principal Amount hereof at a per annum rate equal to the Pass-Through
Rate set forth above and as further described in the Agreement. The Trustee will
distribute on the 25th day of each month, or, if such 25th day is not a Business
Day, the immediately following Business Day (each, a "Distribution Date"),
commencing on the First Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the calendar month preceding the month of such Distribution
Date, an amount equal to the product of the Fractional Undivided Interest
evidenced by this Certificate and the amount (of interest and principal, if any)
required to be distributed to the Holders of Certificates of the same Class as
this Certificate. The Assumed Final Distribution Date is the Distribution Date
in the month immediately following the month of the latest scheduled maturity
date of any Mortgage Loan and is not likely to be the date on which the Current
Principal Amount of this Class of Certificates will be reduced to zero.
Distributions on this Certificate will be made by the paying Agent by
check mailed to the address of the Person entitled thereto as such name and
address shall appear on the Certificate Register or, if such Person so requests
by notifying the Securities Administrator in writing as specified in the
Agreement by wire transfer. Notwithstanding the above, the final distribution on
this Certificate will be made after due notice by the paying Agent of the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the office or agency appointed by the Securities Administrator
for that purpose and designated in such notice. The Initial Current Principal
Amount of this Certificate is set forth above. The Current Principal Amount
hereof will be reduced to the extent of distributions allocable to principal
hereon and any Realized Losses allocable hereto.
Each Holder of this Certificate will be deemed to have agreed to be
bound by the restrictions set forth in the Agreement to the effect that (i) each
person holding or acquiring any Ownership Interest in this Certificate must be a
United States Person and a Permitted Transferee, (ii) the transfer of any
Ownership Interest in this Certificate will be conditioned upon the delivery to
▇▇▇▇ ▇▇, the Trustee and the Securities Administrator of, among other things, an
affidavit to the effect that it is a United States Person and Permitted
Transferee, (iii) any attempted or purported transfer of any Ownership Interest
in this Certificate in violation of such restrictions will be absolutely null
and void and will vest no rights in the purported transferee, and (iv) if any
person other than a United States Person and a Permitted Transferee acquires any
Ownership Interest in this Certificate in violation of such restrictions, then
the Depositor will have the right, in its sole discretion and without notice to
the Holder of this Certificate, to sell this Certificate to a purchaser selected
by the Depositor, which purchaser may be the Depositor, or any affiliate of the
Depositor, on such terms and conditions as the Depositor may choose.
This certificate may not be acquired directly or indirectly by, or on
behalf of, an employee benefit plan or other retirement arrangement which is
subject to title I of the Employee Retirement Income Security Act of 1974, as
amended, and/or section 4975 of the Internal Revenue Code of 1986, as amended,
unless the proposed transferee provides the Trustee with an opinion of counsel
addressed to the Trustee, Master Servicer and the Securities Administrator and
on which they may rely (which shall not be at the expense of the Trustee, Master
Servicer or the Securities Administrator) which is acceptable to the Trustee,
that the purchase of this Certificate will not result in or constitute a
nonexempt prohibited transaction, is permissible under applicable law and will
not give rise to any additional fiduciary obligations on the part of the
Depositor, the Master Servicer or the Trustee.
This Certificate is one of a duly authorized issue of Certificates
designated as set forth on the face hereof (the "Certificates"). The
Certificates, in the aggregate, evidence the entire beneficial ownership
interest in the Trust Fund formed pursuant to the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the Trust Fund for payment hereunder and that the
Trustee is not liable to the Certificateholders for any amount payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced hereby, and the rights,
duties and immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Securities Administrator and the Trustee and
the rights of the Certificateholders under the Agreement from time to time by
the parties thereto with the consent of the Holders of Certificates, evidencing
Fractional Undivided Interests aggregating not less than 51% of the portion of
the Trust Fund related to such Certificates (or in certain cases, Holders of
Certificates of affected Classes evidencing such percentage of the Fractional
Undivided Interests thereof). Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders of
this Certificate and of any Certificate issued upon the transfer hereof or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable with the certificate
registrar upon surrender of this Certificate for registration of transfer at the
offices or agencies maintained by the Securities Administrator for such
purposes, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Securities Administrator duly executed by the Holder
hereof or such Holder's attorney duly authorized in writing, and thereupon one
or more new Certificates in authorized denominations representing a like
aggregate Fractional Undivided Interest will be issued to the designated
transferee.
The Certificates are issuable only as registered Certificates without
coupons in the Classes and denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, this
Certificate is exchangeable for one or more new Certificates evidencing the same
Class and in the same aggregate Fractional Undivided Interest, as requested by
the Holder surrendering the same.
No service charge will be made to the Certificateholders for any such
registration of transfer, but the Securities Administrator may require payment
of a sum sufficient to cover any tax or other governmental charge payable in
connection therewith. The Depositor, the Master Servicer, the Securities
Administrator, the Trustee and any agent of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Securities Administrator,
the Trustee or any such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created
thereby (other than the obligations to make payments to Certificateholders with
respect to the termination of the Agreement) shall terminate upon the earlier of
(i) the later of the (A) final payment or other liquidation (or Advance with
respect thereto) of the last Mortgage Loan remaining in the Trust Fund and (B)
disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of any Mortgage Loan and the remittance of all funds due under the
Agreement, or (ii) the optional repurchase by the party named in the Agreement
of all the Mortgage Loans and other assets of the Trust Fund in accordance with
the terms of the Agreement. Such optional repurchase may be made only on or
after the Distribution Date on which the aggregate unpaid principal balance of
the Mortgage Loans is less than the percentage of the aggregate Outstanding
Principal Balance specified in the Agreement of the Mortgage Loans at the
Cut-off Date. The exercise of such right will effect the early retirement of the
Certificates. In no event, however, will the Trust Fund created by the Agreement
continue beyond the earlier of (i) the "latest possible maturity date" specified
in Section 5.01(d) of the Agreement or (ii) the expiration of 21 years after the
death of certain persons identified in the Agreement.
Unless this Certificate has been countersigned by an authorized
signatory of the Securities Administrator by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement, or be valid for any
purpose.
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated: December 29, 2005 ▇▇▇▇▇ FARGO BANK,
NATIONAL ASSOCIATION,
Not in its individual capacity but solely as
Securities Administrator
By:
-----------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Agreement.
▇▇▇▇▇ FARGO BANK,
NATIONAL ASSOCIATION,
Authorized signatory of ▇▇▇▇▇ Fargo Bank,
National Association, not in its individual
capacity but solely as Securities
Administrator
By:
-----------------------------------------
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assigns(s) and
transfers unto _______________
(please print or typewrite name and address including postal zip code
of assignee)
a Percentage Interest equal to ___% evidenced by the within Re-REMIC Certificate
and hereby authorizes the transfer of registration of such interest to assignee
on the Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Re-REMIC Certificate
of a like Percentage Interest and Class to the above named assignee and deliver
such Re-REMIC Certificate to the following address:
Dated:
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _______________________ for the account of __________________
________________________________________________________________________________
to _____________________________________________________________________________
Applicable statements should be mailed to______________________________
________________________________________________________________________________
________________________________________________________________________________
This information is provided by , _____________________________________
the Assignee named above, or , _________________________________________________
as its agent. The Assignee's taxpayer identification number is _________________
EXHIBIT A-6
FORM OF CLASS [__]-X CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO THE SECURITIES ADMINISTRATOR OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED WILL
BE REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT WILL
BE MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
Certificate No.1 Variable Pass-Through Rate
Class [__]-X Senior
Date of Pooling and Servicing Agreement and Cut-off Date: Aggregate Initial Notional Amount of this Senior
December 1, 2005 Certificate as of the Cut-off Date:
$[________]
First Distribution Date: Initial Current Amount of this Senior Certificate as of
January 25, 2006 the Cut-off Date:
$[--------]
Master Servicer: CUSIP: [________]
▇▇▇▇▇ Fargo Bank, National Association
Assumed Final Distribution Date:
[________]
PRIME MORTGAGE TRUST 2005-5
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2005-5
evidencing a fractional undivided interest in the distributions
allocable to the Class [__]-X Certificates with respect to a portion of
a Trust Fund consisting primarily of a pool of fixed rate mortgage
loans secured by first liens on one-to-four family residential
properties sold by STRUCTURED ASSET MORTGAGE INVESTMENTS II INC.
This Certificate is payable solely from the assets of the Trust Fund,
and does not represent an obligation of or interest in Structured Asset Mortgage
Investments II Inc., the Master Servicer, the Securities Administrator or the
Trustee referred to below or any of their affiliates or any other person.
Neither this Certificate nor the underlying Mortgage Loans are guaranteed or
insured by any governmental entity or by Structured Asset Mortgage Investments
II Inc., the Master Servicer, the Securities Administrator or the Trustee or any
of their affiliates or any other person. None of the Structured Asset Mortgage
Investments II Inc., the Master Servicer or any of their affiliates will have
any obligation with respect to any certificate or other obligation secured by or
payable from payments on the Certificates.
This certifies that Cede & Co. is the registered owner of the
Fractional Undivided Interest evidenced hereby in the beneficial ownership
interest of Certificates of the same Class as this Certificate in a portion of a
trust (the "Trust Fund") primarily consisting of fixed rate mortgage loans
secured by first liens on one- to four- family residential properties
(collectively, the "Mortgage Loans") sold by Structured Asset Mortgage
Investments II Inc. ("▇▇▇▇ ▇▇"). The Mortgage Loans were sold by EMC Mortgage
Corporation ("EMC") to ▇▇▇▇ ▇▇. ▇▇▇▇▇ Fargo Bank, National Association ("▇▇▇▇▇
Fargo") will act as master servicer of the Mortgage Loans and as securities
administrator (the "Master Servicer" and the "Securities Administrator, which
terms includes any successors thereto under the Agreement referred to below).
The Trust Fund was created pursuant to the Pooling and Servicing Agreement dated
as of the Cut-off Date specified above (the "Agreement"), among ▇▇▇▇ ▇▇, as
depositor (the "Depositor"), ▇▇▇▇▇ Fargo Bank, National Association as Master
Servicer and securities administrator (in such capacity, the "Securities
Administrator"), EMC Mortgage Corporation, as seller and company, and U.S. Bank
National Association, as trustee (the "Trustee"), a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, capitalized terms used herein shall have the meaning ascribed to them in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
Interest on this Certificate will accrue during the month prior to the
month in which a Distribution Date (as hereinafter defined) occurs on the
Notional Amount hereof at a per annum rate equal to the Pass-Through Rate set
forth above and as further described in the Agreement. The Trustee will
distribute on the 25th day of each month, or, if such 25th day is not a Business
Day, the immediately following Business Day (each, a "Distribution Date"),
commencing on the First Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the calendar month preceding the month of such Distribution
Date, an amount equal to the product of the Fractional Undivided Interest
evidenced by this Certificate and the amount (of interest and principal, if any)
required to be distributed to the Holders of Certificates of the same Class as
this Certificate. The Assumed Final Distribution Date is the Distribution Date
in the month immediately following the month of the latest scheduled maturity
date of any Mortgage Loan and is not likely to be the date on which the Notional
Amount of this Class of Certificates will be reduced to zero.
Distributions on this Certificate will be made by the paying Agent by
check mailed to the address of the Person entitled thereto as such name and
address shall appear on the Certificate Register or, if such Person so requests
by notifying the Securities Administrator in writing as specified in the
Agreement by wire transfer. Notwithstanding the above, the final distribution on
this Certificate will be made after due notice by the paying Agent of the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the office or agency appointed by the Securities Administrator
for that purpose and designated in such notice. The Initial Notional Amount of
this Certificate is set forth above. The Notional Amount hereof will be reduced
to the extent of distributions allocable to principal hereon and any Realized
Losses allocable hereto.
This Certificate is one of a duly authorized issue of Certificates
designated as set forth on the face hereof (the "Certificates"). The
Certificates, in the aggregate, evidence the entire beneficial ownership
interest in the Trust Fund formed pursuant to the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the Trust Fund for payment hereunder and that the
Trustee is not liable to the Certificateholders for any amount payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced hereby, and the rights,
duties and immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Securities Administrator and the Trustee and
the rights of the Certificateholders under the Agreement from time to time by
the parties thereto with the consent of the Holders of Certificates, evidencing
Fractional Undivided Interests aggregating not less than 51% of the portion of
the Trust Fund related to such Certificates (or in certain cases, Holders of
Certificates of affected Classes evidencing such percentage of the Fractional
Undivided Interests thereof). Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders of
this Certificate and of any Certificate issued upon the transfer hereof or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable with the certificate
registrar upon surrender of this Certificate for registration of transfer at the
offices or agencies maintained by the Securities Administrator for such
purposes, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Securities Administrator duly executed by the Holder
hereof or such Holder's attorney duly authorized in writing, and thereupon one
or more new Certificates in authorized denominations representing a like
aggregate Fractional Undivided Interest will be issued to the designated
transferee.
The Certificates are issuable only as registered Certificates without
coupons in the Classes and denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, this
Certificate is exchangeable for one or more new Certificates evidencing the same
Class and in the same aggregate Fractional Undivided Interest, as requested by
the Holder surrendering the same.
No service charge will be made to the Certificateholders for any such
registration of transfer, but the Securities Administrator may require payment
of a sum sufficient to cover any tax or other governmental charge payable in
connection therewith. The Depositor, the Master Servicer, the Securities
Administrator, the Trustee and any agent of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Securities Administrator,
the Trustee or any such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created
thereby (other than the obligations to make payments to Certificateholders with
respect to the termination of the Agreement) shall terminate upon the earlier of
(i) the later of the (A) final payment or other liquidation (or Advance with
respect thereto) of the last Mortgage Loan remaining in the Trust Fund and (B)
disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of any Mortgage Loan and the remittance of all funds due under the
Agreement, or (ii) the optional repurchase by the party named in the Agreement
of all the Mortgage Loans and other assets of the Trust Fund in accordance with
the terms of the Agreement. Such optional repurchase may be made only on or
after the Distribution Date on which the aggregate unpaid principal balance of
the Mortgage Loans is less than the percentage of the aggregate Outstanding
Principal Balance specified in the Agreement of the Mortgage Loans at the
Cut-off Date. The exercise of such right will effect the early retirement of the
Certificates. In no event, however, will the Trust Fund created by the Agreement
continue beyond the earlier of (i) the "latest possible maturity date" specified
in Section 5.01(d) of the Agreement or (ii) the expiration of 21 years after the
death of certain persons identified in the Agreement.
Unless this Certificate has been countersigned by an authorized
signatory of the Securities Administrator by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement, or be valid for any
purpose.
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated: December 29, 2005 ▇▇▇▇▇ FARGO BANK,
NATIONAL ASSOCIATION,
Not in its individual capacity but solely as
Securities Administrator
By:
-----------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Agreement.
▇▇▇▇▇ FARGO BANK,
NATIONAL ASSOCIATION,
Authorized signatory of ▇▇▇▇▇ Fargo Bank,
National Association, not in its individual
capacity but solely as Securities
Administrator
By:
-----------------------------------------
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto __________________________________ (Please print or typewrite
name and address including postal zip code of assignee) a Fractional Undivided
Interest evidenced by the within Mortgage Pass-Through Certificate and hereby
authorizes the transfer of registration of such interest to assignee on the
Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
Dated:
--------------------------------------------
Signature by or on behalf of assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of _________________________ account number _____________, or, if mailed by
check, to ______________________________. Applicable statements should be mailed
to _____________________________________________.
This information is provided by __________________, the assignee named
above, or ________________________, as its agent.
EXHIBIT A-7
FORM OF CLASS I-XB CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR
CERTIFICATES AS DESCRIBED IN THE AGREEMENT (AS DEFINED BELOW).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DECREASED BY
THE PRINCIPAL PAYMENTS HEREON AND ANY REALIZED LOSSES ALLOCABLE HERETO.
ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE CURRENT
PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION
SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
PRINCIPAL AMOUNT BY INQUIRY OF THE SECURITIES ADMINISTRATOR NAMED HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO THE SECURITIES ADMINISTRATOR OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED WILL
BE REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT WILL
BE MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
EACH BENEFICIAL OWNER OF THIS CERTIFICATE OR ANY INTEREST HEREIN SHALL
BE DEEMED TO HAVE REPRESENTED, BY VIRTUE OF ITS ACQUISITION OR HOLDING OF THIS
CERTIFICATE OR INTEREST HEREIN, THAT EITHER (I) IT IS NOT AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED ("PLAN"), OR
INVESTING WITH ASSETS OF A PLAN OR (II) IT HAS ACQUIRED AND IS HOLDING SUCH
CERTIFICATE IN RELIANCE ON PROHIBITED TRANSACTION EXEMPTION 90-30, AS AMENDED
FROM TIME TO TIME ("EXEMPTION"), AND THAT IT UNDERSTANDS THAT THERE ARE CERTAIN
CONDITIONS TO THE AVAILABILITY OF THE EXEMPTION, INCLUDING THAT THE CERTIFICATE
MUST BE RATED, AT THE TIME OF PURCHASE, NOT LOWER THAN "BBB-" (OR ITS
EQUIVALENT) BY STANDARD & POOR'S, FITCH, INC. OR ▇▇▇▇▇'▇ INVESTORS SERVICE,
INC., AND THE CERTIFICATE IS SO RATED OR (III) (1) IT IS AN INSURANCE COMPANY,
(2) THE SOURCE OF FUNDS USED TO ACQUIRE OR HOLD THE CERTIFICATE OR INTEREST
HEREIN IS AN "INSURANCE COMPANY GENERAL ACCOUNT", AS SUCH TERM IS DEFINED IN
PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 95-60, AND (3) THE CONDITIONS IN
SECTIONS I AND III OF PTCE 95-60 HAVE BEEN SATISFIED.
Certificate No.1 Pass-Through Rate: [___]%
Class I-XB [Senior][Subordinate]
Date of Pooling and Servicing Agreement and Cut-off Aggregate Initial Notional Amount of this
Date: [Senior][Subordinate] Certificate as of the Cut-off
December 1, 2005 Date: $[______]
First Distribution Date: Initial Notional Amount of this [Senior][Subordinate]
January 25, 2006 Certificate as of the Cut-off Date: $[______]
Master Servicer: CUSIP: [______]
▇▇▇▇▇ Fargo Bank, National Association
Assumed Final Distribution Date:
[______]
PRIME MORTGAGE TRUST 2005-5
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2005-5
evidencing a fractional undivided interest in the distributions
allocable to the Class I-XB Certificates with respect to a portion of a
Trust Fund consisting primarily of a pool of fixed rate mortgage loans
secured by first liens on one-to-four family residential properties
sold by STRUCTURED ASSET MORTGAGE INVESTMENTS II INC.
This Certificate is payable solely from the assets of the Trust Fund,
and does not represent an obligation of or interest in Structured Asset Mortgage
Investments II Inc., the Master Servicer, the Securities Administrator or the
Trustee referred to below or any of their affiliates or any other person.
Neither this Certificate nor the underlying Mortgage Loans are guaranteed or
insured by any governmental entity or by Structured Asset Mortgage Investments
II Inc., the Master Servicer, the Securities Administrator or the Trustee or any
of their affiliates or any other person. None of the Structured Asset Mortgage
Investments II Inc., the Master Servicer or any of their affiliates will have
any obligation with respect to any certificate or other obligation secured by or
payable from payments on the Certificates.
This certifies that Cede & Co. is the registered owner of the
Fractional Undivided Interest evidenced hereby in the beneficial ownership
interest of Certificates of the same Class as this Certificate in a portion of a
trust (the "Trust Fund") primarily consisting of fixed rate mortgage loans
secured by first liens on one- to four- family residential properties
(collectively, the "Mortgage Loans") sold by Structured Asset Mortgage
Investments II Inc. ("▇▇▇▇ ▇▇"). The Mortgage Loans were sold by EMC Mortgage
Corporation ("EMC") to ▇▇▇▇ ▇▇. ▇▇▇▇▇ Fargo Bank, National Association ("▇▇▇▇▇
Fargo") will act as master servicer of the Mortgage Loans and as securities
administrator (the "Master Servicer" and the "Securities Administrator, which
terms includes any successors thereto under the Agreement referred to below).
The Trust Fund was created pursuant to the Pooling and Servicing Agreement dated
as of the Cut-off Date specified above (the "Agreement"), among ▇▇▇▇ ▇▇, as
depositor (the "Depositor"), ▇▇▇▇▇ Fargo Bank, National Association as Master
Servicer and securities administrator (in such capacity, the "Securities
Administrator"), EMC Mortgage Corporation, as seller and company, and U.S. Bank
National Association, as trustee (the "Trustee"), a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, capitalized terms used herein shall have the meaning ascribed to them in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
Interest on this Certificate will accrue during the month prior to the
month in which a Distribution Date (as hereinafter defined) occurs on the
Notional Amount hereof at a per annum rate equal to the Pass-Through Rate set
forth above and as further described in the Agreement. The Trustee will
distribute on the 25th day of each month, or, if such 25th day is not a Business
Day, the immediately following Business Day (each, a "Distribution Date"),
commencing on the First Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the calendar month preceding the month of such Distribution
Date, an amount equal to the product of the Fractional Undivided Interest
evidenced by this Certificate and the amount (of interest and principal, if any)
required to be distributed to the Holders of Certificates of the same Class as
this Certificate. The Assumed Final Distribution Date is the Distribution Date
in the month immediately following the month of the latest scheduled maturity
date of any Mortgage Loan and is not likely to be the date on which the Notional
Amount of this Class of Certificates will be reduced to zero.
Distributions on this Certificate will be made by the paying Agent by
check mailed to the address of the Person entitled thereto as such name and
address shall appear on the Certificate Register or, if such Person so requests
by notifying the Securities Administrator in writing as specified in the
Agreement by wire transfer. Notwithstanding the above, the final distribution on
this Certificate will be made after due notice by the paying Agent of the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the office or agency appointed by the Securities Administrator
for that purpose and designated in such notice. The Initial Notional Amount of
this Certificate is set forth above. The Notional Amount hereof will be reduced
to the extent of distributions allocable to principal hereon and any Realized
Losses allocable hereto.
This Certificate is one of a duly authorized issue of Certificates
designated as set forth on the face hereof (the "Certificates"). The
Certificates, in the aggregate, evidence the entire beneficial ownership
interest in the Trust Fund formed pursuant to the Agreement.
[For Class II-XB only:] [Each beneficial owner of this Certificate or
any interest herein shall be deemed to have represented, by virtue of its
acquisition or holding of this certificate or interest herein, that either (i)
it is not an employee benefit plan subject to the Employee Retirement Income
Security Act of 1974, as amended or section 4975 of the Internal Revenue Code of
1986, as amended ("Plan"), or investing with assets of a Plan or (ii) it has
acquired and is holding such certificate in reliance on Prohibited Transaction
Exemption 90-30, as amended from time to time ("Exemption"), and that it
understands that there are certain conditions to the availability of the
Exemption, including that the certificate must be rated, at the time of
purchase, not lower than "BBB-" (or its equivalent) by Standard & Poor's, Fitch,
Inc. or ▇▇▇▇▇'▇ Investors Service, Inc., and the certificate is so rated or
(iii) (1) it is an insurance company, (2) the source of funds used to acquire or
hold the certificate or interest herein is an "insurance company general
account", as such term is defined in Prohibited Transaction Class Exemption
("PTCE") 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have
been satisfied.]
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the Trust Fund for payment hereunder and that the
Trustee is not liable to the Certificateholders for any amount payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced hereby, and the rights,
duties and immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Securities Administrator and the Trustee and
the rights of the Certificateholders under the Agreement from time to time by
the parties thereto with the consent of the Holders of Certificates, evidencing
Fractional Undivided Interests aggregating not less than 51% of the portion of
the Trust Fund related to such Certificates (or in certain cases, Holders of
Certificates of affected Classes evidencing such percentage of the Fractional
Undivided Interests thereof). Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders of
this Certificate and of any Certificate issued upon the transfer hereof or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable with the certificate
registrar upon surrender of this Certificate for registration of transfer at the
offices or agencies maintained by the Securities Administrator for such
purposes, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Securities Administrator duly executed by the Holder
hereof or such Holder's attorney duly authorized in writing, and thereupon one
or more new Certificates in authorized denominations representing a like
aggregate Fractional Undivided Interest will be issued to the designated
transferee.
The Certificates are issuable only as registered Certificates without
coupons in the Classes and denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, this
Certificate is exchangeable for one or more new Certificates evidencing the same
Class and in the same aggregate Fractional Undivided Interest, as requested by
the Holder surrendering the same.
No service charge will be made to the Certificateholders for any such
registration of transfer, but the Securities Administrator may require payment
of a sum sufficient to cover any tax or other governmental charge payable in
connection therewith. The Depositor, the Master Servicer, the Securities
Administrator, the Trustee and any agent of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Securities Administrator,
the Trustee or any such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created
thereby (other than the obligations to make payments to Certificateholders with
respect to the termination of the Agreement) shall terminate upon the earlier of
(i) the later of the (A) final payment or other liquidation (or Advance with
respect thereto) of the last Mortgage Loan remaining in the Trust Fund and (B)
disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of any Mortgage Loan and the remittance of all funds due under the
Agreement, or (ii) the optional repurchase by the party named in the Agreement
of all the Mortgage Loans and other assets of the Trust Fund in accordance with
the terms of the Agreement. Such optional repurchase may be made only on or
after the Distribution Date on which the aggregate unpaid principal balance of
the Mortgage Loans is less than the percentage of the aggregate Outstanding
Principal Balance specified in the Agreement of the Mortgage Loans at the
Cut-off Date. The exercise of such right will effect the early retirement of the
Certificates. In no event, however, will the Trust Fund created by the Agreement
continue beyond the earlier of (i) the "latest possible maturity date" specified
in Section 5.01(d) of the Agreement or (ii) the expiration of 21 years after the
death of certain persons identified in the Agreement.
Unless this Certificate has been countersigned by an authorized
signatory of the Securities Administrator by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement, or be valid for any
purpose.
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated: December 29, 2005 ▇▇▇▇▇ FARGO BANK,
NATIONAL ASSOCIATION,
Not in its individual capacity but solely as
Securities Administrator
By:
-----------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Agreement.
▇▇▇▇▇ FARGO BANK,
NATIONAL ASSOCIATION,
Authorized signatory of ▇▇▇▇▇ Fargo Bank,
National Association, not in its individual
capacity but solely as Securities
Administrator
By:
-----------------------------------------
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto __________________________________ (Please print or typewrite
name and address including postal zip code of assignee) a Fractional Undivided
Interest evidenced by the within Mortgage Pass-Through Certificate and hereby
authorizes the transfer of registration of such interest to assignee on the
Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
Dated:
--------------------------------------------
Signature by or on behalf of assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of _________________________ account number _____________, or, if mailed by
check, to ______________________________. Applicable statements should be mailed
to _____________________________________________.
This information is provided by __________________, the assignee named
above, or ________________________, as its agent.
EXHIBIT B
MORTGAGE LOAN SCHEDULE
The Preliminary and Final Mortgage Loan Schedules shall set forth the
following information with respect to each Mortgage Loan:
(a) the loan number;
(b) the Mortgagor's name;
(c) the street address (including city, state and zip code) of the
Mortgaged Property;
(d) the property type;
(e) the Mortgage Rate;
(f) the Servicer;
(g) the Servicing Rate;
(h) the Net Rate;
(i) the original term;
(j) the maturity date;
(k) the stated remaining term to maturity;
(l) the original principal balance;
(m) the first payment date;
(n) the principal and interest payment in effect as of the Cut-off Date;
(o) the unpaid principal balance as of the Cut-off Date;
(p) the Loan-to-Value Ratio at origination;
(q) paid-through date;
(r) the insurer of any Primary Mortgage Insurance Policy;
(s) the Gross Margin, if applicable;
(t) the Maximum Lifetime Mortgage Rate, if applicable;
(u) the Minimum Lifetime Mortgage Rate, if applicable;
(v) the Periodic Rate Cap, if applicable;
(w) the number of days delinquent, if any;
(x) which Mortgage Loans adjust after an initial fixed-rate period of
three, five, seven or ten years;
(y) The Loan Group; and
(z) The Prepayment Charge Loans.
Such schedule also shall set forth for all of the Mortgage Loans, the total
number of Mortgage Loans, the total of each of the amounts described under (k)
and (n) above, the weighted average by principal balance as of the Cut-off Date
of each of the rates described under (e), (f) and (g) above, and the weighted
average remaining term to maturity by unpaid principal balance as of the Cut-off
Date.
EXHIBIT C
[RESERVED]
EXHIBIT D
REQUEST FOR RELEASE OF DOCUMENTS
To: U.S. Bank National Association
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
RE: Pooling and Servicing Agreement dated as of
December 1, 2005, among ▇▇▇▇ ▇▇,
▇▇▇▇▇ Fargo Bank,
National Association, as Master Servicer
and Securities Administrator,
EMC Mortgage Corporation, as Seller
and Company and U.S. Bank National Association as Trustee
In connection with the administration of the Mortgage Loans held by you
pursuant to the above-captioned Pooling and Servicing Agreement, we request the
release, and hereby acknowledge receipt, of the Mortgage File for the Mortgage
Loan described below, for the reason indicated.
MORTGAGE LOAN NUMBER:
MORTGAGOR NAME, ADDRESS & ZIP CODE:
REASON FOR REQUESTING DOCUMENTS (CHECK ONE):
_____ 1. Mortgage Paid in Full and proceeds have been deposited into
the Custodial Account
_____ 2. Foreclosure
_____ 3. Substitution
_____ 4. Other Liquidation
_____ 5. Nonliquidation Reason:
-------------------------
_____ 6. California Mortgage Loan paid in full
By:
-----------------------------
(authorized signer)
Issuer:
------------------------
Address:
------------------------
Date:
----------------------------
EXHIBIT E
FORM OF AFFIDAVIT
Affidavit pursuant to Section 860E(e)(4) of
the Internal Revenue Code of 1986, as
amended, and for other purposes
STATE OF )
) ss:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That he is [Title of Officer] of [Name of Investor] (the
"Investor"), a [savings institution] [corporation] duly organized and existing
under the laws of [the State of _______________] [the United States], on behalf
of which he makes this affidavit.
2. That (i) the Investor is not a "disqualified organization" as
defined in Section 860E(e)(5) of the Internal Revenue Code of 1986, as amended
(the "Code"), and will not be a disqualified organization as of [Closing Date]
[date of purchase]; (ii) it is not acquiring the Structured Asset Mortgage
Investments II Inc., Prime Mortgage Trust, [Mortgage Pass-Through
Certificates][Re-REMIC Certificates], Series 2005-5 [Class I-R Certificates]
[Class II-R Certificates] (the "Residual Certificates") for the account of a
disqualified organization; (iii) it consents to any amendment of the Pooling and
Servicing Agreement that shall be deemed necessary by Structured Asset Mortgage
Investments II Inc. (upon advice of counsel) to constitute a reasonable
arrangement to ensure that the Residual Certificates will not be owned directly
or indirectly by a disqualified organization; and (iv) it will not transfer such
Residual Certificates unless (a) it has received from the transferee an
affidavit in substantially the same form as this affidavit containing these same
four representations and (b) as of the time of the transfer, it does not have
actual knowledge that such affidavit is false.
3. That the Investor is one of the following: (i) a citizen or resident
of the United States, (ii) a corporation or partnership (including an entity
treated as a corporation or partnership for federal income tax purposes) created
or organized in, or under the laws of, the United States or any state thereof or
the District of Columbia (except, in the case of a partnership, to the extent
provided in regulations), provided that no partnership or other entity treated
as a partnership for United States federal income tax purposes shall be treated
as a United States Person unless all persons that own an interest in such
partnership either directly or through any entity that is not a corporation for
United States federal income tax purposes are United States Persons, (iii) an
estate whose income is subject to United States federal income tax regardless of
its source, or (iv) a trust other than a "foreign trust," as defined in Section
7701 (a)(31) of the Code.
4. That the Investor's taxpayer identification number is
________________.
5. That no purpose of the acquisition of the Residual Certificates is
to avoid or impede the assessment or collection of tax.
6. That the Investor understands that, as the holder of the Residual
Certificates, the Investor may incur tax liabilities in excess of any cash flows
generated by such Residual Certificates.
7. That the Investor intends to pay taxes associated with holding the
Residual Certificates as they become due.
IN WITNESS WHEREOF, the Investor has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
[Title of Officer] this ____ day of _________, 20__.
[NAME OF INVESTOR]
By:
-----------------------------------------
[Name of Officer]
[Title of Officer]
[Address of Investor for receipt of
distributions]
Address of Investor for receipt of tax
information:
Personally appeared before me the above-named [Name of Officer], known
or proved to me to be the same person who executed the foregoing instrument and
to be the [Title of Officer] of the Investor, and acknowledged to me that he
executed the same as his free act and deed and the free act and deed of the
Investor.
Subscribed and sworn before me this ___ day of _________, 20___.
NOTARY PUBLIC
COUNTY OF
STATE OF
My commission expires the ___ day of ___________________, 20___.
EXHIBIT F-1
FORM OF INVESTMENT LETTER
[Date]
[SELLER]
U.S. Bank National Association
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Structured Asset Mortgage Investments II Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Structured Asset Mortgage Investments II Inc., Prime Mortgage
Trust, Series 2005-5 Mortgage Pass-Through Certificates (the
"Certificates"), including the [Class I-B-4, Class I-B-5 and
Class I-B-6 Certificates (the "Private Mortgage Pass-Through
Certificates")] [Class II-A-1, Class II-A-2, Class II-A-3,
Class II-A-4 and Class II-A-5 Certificates (The "Re-Remic
Certificates")]
--------------------------------------------------------------
Dear Ladies and Gentlemen:
In connection with our purchase of the [Private Mortgage Pass-Through
Certificates][Re-REMIC Certificates], we confirm that:
(i) we understand that the [Private Mortgage Pass-Through
Certificates][Re-REMIC Certificates] are not being registered
under the Securities Act of 1933, as amended (the "Act") or
any applicable state securities or "Blue Sky" laws, and are
being sold to us in a transaction that is exempt from the
registration requirements of such laws;
(ii) any information we desired concerning the Certificates,
including the [Private Mortgage Pass-Through
Certificates][Re-REMIC Certificates], the trust in which the
Certificates represent the entire beneficial ownership
interest (the "Trust") or any other matter we deemed relevant
to our decision to purchase [Private Mortgage Pass-Through
Certificates][Re-REMIC Certificates] has been made available
to us;
(iii) we are able to bear the economic risk of investment in
[Private Mortgage Pass-Through Certificates][Re-REMIC
Certificates]; we are an institutional "accredited investor"
as defined in Section 501(a) of Regulation D promulgated under
the Act and a sophisticated institutional investor;
(iv) we are acquiring [Private Mortgage Pass-Through
Certificates][Re-REMIC Certificates] for our own account, not
as nominee for any other person, and not with a present view
to any distribution or other disposition of the [Private
Mortgage Pass-Through Certificates][Re-REMIC Certificates];
(v) we agree the [Private Mortgage Pass-Through
Certificates][Re-REMIC Certificates] must be held indefinitely
by us (and may not be sold, pledged, hypothecated or in any
way disposed of) unless subsequently registered under the Act
and any applicable state securities or "Blue Sky" laws or an
exemption from the registration requirements of the Act and
any applicable state securities or "Blue Sky" laws is
available;
(vi) we agree that in the event that at some future time we wish to
dispose of or exchange any of the [Private Mortgage
Pass-Through Certificates][Re-REMIC Certificates] (such
disposition or exchange not being currently foreseen or
contemplated), we will not transfer or exchange any of the
[Private Mortgage Pass-Through Certificates][Re-REMIC
Certificates] unless:
(A) (1) the sale is to an Eligible Purchaser (as
defined below), (2) if required by the Pooling and Servicing
Agreement (as defined below) a letter to substantially the
same effect as either this letter or, if the Eligible
Purchaser is a Qualified Institutional Buyer as defined under
Rule 144A of the Act, the Rule 144A and Related Matters
Certificate in the form attached to the Pooling and Servicing
Agreement (as defined below) (or such other documentation as
may be acceptable to the Trustee) is executed promptly by the
purchaser and delivered to the addressees hereof and (3) all
offers or solicitations in connection with the sale, whether
directly or through any agent acting on our behalf, are
limited only to Eligible Purchasers and are not made by means
of any form of general solicitation or general advertising
whatsoever; and
(B) if the [Private Mortgage Pass-Through
Certificates][Re-REMIC Certificates] is not registered under
the Act (as to which we acknowledge you have no obligation),
the [Private Mortgage Pass-Through Certificates][Re-REMIC
Certificates] is sold in a transaction that does not require
registration under the Act and any applicable state securities
or "blue sky" laws and, if U.S. Bank National Association (the
"Trustee") so requests, a satisfactory Opinion of Counsel is
furnished to such effect, which Opinion of Counsel shall be an
expense of the transferor or the transferee;
(vii) we agree to be bound by all of the terms (including those
relating to restrictions on transfer) of the Pooling and
Servicing, pursuant to which the Trust was formed; we have
reviewed carefully and understand the terms of the Pooling and
Servicing Agreement;
(viii) we either: (i) are not acquiring the [Private Mortgage
Pass-Through Certificates][Re-REMIC Certificates] directly or
indirectly by, or on behalf of, an employee benefit plan or
other retirement arrangement which is subject to Title I of
the Employee Retirement Income Security Act of 1974, as
amended, or section 4975 of the Internal Revenue Code of 1986,
as amended, or (ii) are providing a representation to the
effect that the proposed transfer and holding of a [Private
Mortgage Pass-Through Certificates][Re-REMIC Certificates] and
the servicing, management and operation of the Trust and its
assets: (I) will not result in any prohibited transaction
which is not covered under an individual or class prohibited
transaction exemption, including, but not limited to,
Prohibited Transaction Exemption ("PTE") 84-14, ▇▇▇ ▇▇-▇▇, ▇▇▇
▇▇-▇, ▇▇▇ 95-60, or PTE 96-23 and (II) will not give rise to
any additional obligations on the part of the Depositor, the
Master Servicer, the Securities Administrator or the Trustee
or (iii) have attached hereto the opinion specified in Section
5.07 of the Agreement.
(ix) We understand that each of the [Private Mortgage Pass-Through
Certificates][Re-REMIC Certificates] bears, and will continue
to bear, a legend to substantiate the following effect: "THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
UNDER ANY STATE SECURITIES LAWS. THE HOLDER HEREOF, BY
PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY
BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN
COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS
AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT
("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES
IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A QIB
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS
INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR
OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2)
PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE
144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (3) IN
CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR"
WITHIN THE MEANING THEREOF IN RULE 501(a)(1), (2), (3) or (7)
OF REGULATION D UNDER THE ACT OR ANY ENTITY IN WHICH ALL OF
THE EQUITY OWNERS COME WITHIN SUCH PARAGRAPHS PURCHASING NOT
FOR DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, SUBJECT
TO (A) THE RECEIPT BY THE TRUSTEE OF A LETTER SUBSTANTIALLY IN
THE FORM PROVIDED IN THE AGREEMENT AND (B) THE RECEIPT BY THE
TRUSTEE OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE TRUSTEE THAT
SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH
THE SECURITIES ACT AND OTHER APPLICABLE LAWS OR IN EACH CASE
IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE
UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION. THIS
CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR INDIRECTLY BY, OR
ON BEHALF OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, UNLESS
THE PROPOSED TRANSFER AND HOLDING OF A CERTIFICATE AND THE
SERVICING, MANAGEMENT AND OPERATION OF THE TRUST AND ITS
ASSETS: (1) WILL NOT RESULT IN ANY PROHIBITED TRANSACTION
WHICH IS NOT COVERED UNDER AN INDIVIDUAL OR CLASS PROHIBITED
TRANSACTION EXEMPTION, INCLUDING, BUT NOT LIMITED TO,
PROHIBITED TRANSACTION EXEMPTION ("PTE") 84-14, ▇▇▇ ▇▇-▇▇, ▇▇▇
▇▇-▇, ▇▇▇ 95-60 OR PTE 96-23 AND (II) WILL NOT GIVE RISE TO
ANY ADDITIONAL OBLIGATIONS ON THE PART OF THE DEPOSITOR, THE
MASTER SERVICER, THE SECURITIES ADMINISTRATOR OR THE TRUSTEE,
WHICH WILL BE DEEMED REPRESENTED BY AN OWNER OF A BOOK-ENTRY
CERTIFICATE OR A GLOBAL CERTIFICATE OR UNLESS THE OPINION
PROVIDED IN SECTION 5.07 OF THE AGREEMENT IS PROVIDED."
"ELIGIBLE PURCHASER" means a corporation, partnership or other entity
which we have reasonable grounds to believe and do believe (i) can make
representations with respect to itself to substantially the same effect as the
representations set forth herein, and (ii) is either a Qualified Institutional
Buyer as defined under Rule 144A of the Act or an institutional "Accredited
Investor" as defined under Rule 501 of the Act.
Terms not otherwise defined herein shall have the meanings assigned to
them in the Pooling and Servicing Agreement, dated as of December 1, 2005, among
Structured Asset Mortgage Investments II Inc., ▇▇▇▇▇ Fargo Bank, National
Association as master servicer and securities administrator, EMC Mortgage
Corporation, as seller and company and U.S. Bank National Association as Trustee
(the "Pooling and Servicing Agreement').
If the Purchaser proposes that its Certificates be registered in the
name of a nominee on its behalf, the Purchaser has identified such nominee
below, and has caused such nominee to complete the Nominee Acknowledgment at the
end of this letter.
Name of Nominee (if any):
IN WITNESS WHEREOF, this document has been executed by the undersigned
who is duly authorized to do so on behalf of the undersigned Eligible Purchaser
on the ___ day of ________, 20___.
Very truly yours,
[PURCHASER]
By:
---------------------------------------
(Authorized Officer)
[By:
----------------------------------------
Attorney-in-fact]
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the
Certificates being registered in its name, the sole beneficial owner thereof is
and shall be the Purchaser identified above, for whom the undersigned is acting
as nominee.
[NAME OF NOMINEE]
By:
-----------------------------------------
(Authorized Officer)
[By:
----------------------------------------
Attorney-in-fact]
EXHIBIT F-2
FORM OF RULE 144A AND RELATED MATTERS CERTIFICATE
[SELLER] [Date]
U.S. Bank National Association
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Structured Asset Mortgage Investments II Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Structured Asset Mortgage Investments II Inc., Prime Mortgage
Trust, Series 2005-5 Mortgage Pass-Through Certificates (the
"Certificates"), including the [Class I-B-4, Class I-B-5 and
Class I-B-6 Certificates (the "Private Mortgage Pass-Through
Certificates")] [Class II-A-1, Class II-A-2, Class II-A-3,
Class II-A-4 and Class II-A-5 Certificates (the "Re-REMIC
Certificates")]
--------------------------------------------------------------
Dear Ladies and Gentlemen:
In connection with our purchase of [Private Mortgage Pass-Through
Certificates][Re-REMIC Certificates], the undersigned certifies to each of the
parties to whom this letter is addressed that it is a qualified institutional
buyer (as defined in Rule 144A under the Securities Act of 1933, as amended (the
"Act")) as follows:
1. It owned and/or invested on a discretionary basis eligible securities
(excluding affiliate's securities, bank deposit notes and CD's, loan
participations, repurchase agreements, securities owned but subject to
a repurchase agreement and swaps), as described below:
Date: ______________, 20__ (must be on or after the close of its most
recent fiscal year)
Amount: $ _____________________; and
2. The dollar amount set forth above is:
a. greater than $100 million and the undersigned is one of the
following entities:
(x) |_| an insurance company as defined in Section
2(13) of the Act(1); or
(y) |_| an investment company registered under the
Investment Company Act or any business
development company as defined in Section
2(a)(48) of the Investment Company Act of
1940; or
(z) |_| a Small Business Investment Company licensed
by the U.S. Small Business Administration
under Section 301(c) or (d) of the Small
Business Investment Act of 1958; or
(aa) |_| a plan (i) established and maintained by a
state, its political subdivisions, or any
agency or instrumentality of a state or its
political subdivisions, the laws of which
permit the purchase of securities of this
type, for the benefit of its employees and
(ii) the governing investment guidelines of
which permit the purchase of securities of
this type; or
(bb) |_| a business development company as defined in
Section 202(a)(22) of the Investment
Advisers Act of 1940; or
(cc) |_| a corporation (other than a U.S. bank,
savings and loan association or equivalent
foreign institution), partnership,
Massachusetts or similar business trust, or
an organization described in Section
501(c)(3) of the Internal Revenue Code; or
(dd) |_| a U.S. bank, savings and loan association or
equivalent foreign institution, which has an
audited net worth of at least $25 million as
demonstrated in its latest annual financial
statements; or
(ee) |_| an investment adviser registered under the
Investment Advisers Act; or
b. |_| greater than $10 million, and the
undersigned is a broker-dealer registered
with the SEC; or
c. |_| less than $10 million, and the undersigned
is a broker-dealer registered with the SEC
and will only purchase Rule 144A securities
in transactions in which it acts as a
riskless principal (as defined in Rule
144A); or
d. |_| less than $100 million, and the undersigned
is an investment company registered under
the Investment Company Act of 1940, which,
together with one or more registered
investment companies having the same or an
affiliated investment adviser, owns at least
$100 million of eligible securities; or
e. |_| less than $100 million, and the undersigned
is an entity, all the equity owners of which
are qualified institutional buyers.
The undersigned further certifies that it is purchasing a [Private
Mortgage Pass-Through Certificates][Re-REMIC Certificates] for its own account
or for the account of others that independently qualify as "Qualified
Institutional Buyers" as defined in Rule 144A. It is aware that the sale of the
[Private Mortgage Pass-Through Certificates][Re-REMIC Certificates] is being
made in reliance on its continued compliance with Rule 144A. It is aware that
the transferor may rely on the exemption from the provisions of Section 5 of the
Act provided by Rule 144A. The undersigned understands that the [Private
Mortgage Pass-Through Certificates][Re-REMIC Certificates] may be resold,
pledged or transferred only to (i) a person reasonably believed to be a
Qualified Institutional Buyer that purchases for its own account or for the
account of a Qualified Institutional Buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance in Rule 144A, or (ii) an
institutional "accredited investor," as such term is defined under Rule 501 of
the Act in a transaction that otherwise does not constitute a public offering.
The undersigned agrees that if at some future time it wishes to dispose
of or exchange any of the [Private Mortgage Pass-Through Certificates][Re-REMIC
Certificates], it will not transfer or exchange any of the Privately Offered
Certificates to a Qualified Institutional Buyer without first obtaining a Rule
144A and Related Matters Certificate in the form hereof from the transferee and
delivering such certificate to the addressees hereof. Prior to making any
transfer of [Private Mortgage Pass-Through Certificates][Re-REMIC Certificates],
if the proposed Transferee is an institutional "accredited investor," the
transferor shall obtain from the transferee and deliver to the addressees hereof
an Investment Letter in the form attached to the Pooling and Servicing
Agreement, dated as of December 1, 2005, among Structured Asset Mortgage
Investments II Inc., ▇▇▇▇▇ Fargo Bank, N.A., EMC Mortgage Corporation and U.S.
Bank National Association, as Trustee, pursuant to Certificates were issued.
The undersigned certifies that it either: (i) is not acquiring the
[Private Mortgage Pass-Through Certificates][Re-REMIC Certificates] directly or
indirectly by, or on behalf of, an employee benefit plan or other retirement
arrangement which is subject to Title I of the Employee Retirement Income
Security Act of 1974, as amended, or section 4975 of the Internal Revenue Code
of 1986, as amended, or (ii) is providing a representation or an opinion of
counsel to the effect that the proposed transfer and holding of a [Private
Mortgage Pass-Through Certificates][Re-REMIC Certificates] and the servicing,
management and operation of the Trust and its assets: (I) will not result in any
prohibited transaction which is not covered under a prohibited transaction
exemption, including, but not limited to, Prohibited Transaction Exemption
("PTE") 84-14, ▇▇▇ ▇▇-▇▇, ▇▇▇ ▇▇-▇, ▇▇▇ ▇▇-▇▇, ▇▇▇ ▇▇-▇▇ and (II) will not give
rise to any additional obligations on the part of the Depositor, the Master
Servicer, the Securities Administrator or the Trustee or (iii) has attached
hereto the opinion specified in Section 5.07 of the Agreement.
If the Purchaser proposes that its Certificates be registered in the
name of a nominee on its behalf, the Purchaser has identified such nominee
below, and has caused such nominee to complete the Nominee Acknowledgment at the
end of this letter.
------------------------
(1) A purchase by an insurance company for one or more of its separate accounts,
as defined by Section 2(a)(37) of the Investment Company Act of 1940, which are
neither registered nor required to be registered thereunder, shall be deemed to
be a purchase for the account of such insurance company.
Name of Nominee (if any):
IN WITNESS WHEREOF, this document has been executed by the undersigned
who is duly authorized to do so on behalf of the undersigned Eligible Purchaser
on the ____ day of ___________, 20___.
Very truly yours,
[PURCHASER]
By:
------------------------------------------
(Authorized Officer)
[By:
-----------------------------------------
Attorney-in-fact]
NOMINEE ACKNOWLEDGMENT
The undersigned hereby acknowledges and agrees that as to the
Certificates being registered in its name, the sole beneficial owner thereof is
and shall be the Purchaser identified above, for whom the undersigned is acting
as nominee.
[NAME OF NOMINEE]
By:
---------------------------------------
(Authorized Officer)
[By:
--------------------------------------
Attorney-in-fact]
EXHIBIT F-3
FORM OF TRANSFER CERTIFICATE FOR EXCHANGE OR
TRANSFER FROM RULE 144A GLOBAL CERTIFICATE TO
REGULATION S GLOBAL CERTIFICATE
U.S. Bank National Association,
as Trustee
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Reference is hereby made to the Pooling and Servicing Agreement
("Pooling and Servicing Agreement"), dated as of December 1, 2005, among
Structured Asset Mortgage Investments II Inc., as Depositor, ▇▇▇▇▇ Fargo Bank,
National Association, as Master Servicer and Securities Administrator, EMC
Mortgage Corporation, as Seller and Company and U.S. Bank National Association
as Trustee. Capitalized terms used but not defined herein are used as defined in
the Pooling and Servicing Agreement:
The undersigned (the "TRANSFEROR") owns and proposes to transfer the
interests in the Rule 144A Global Certificates specified in Annex A hereto (the
"CERTIFICATES") to __________ (the "Transferee"), in the principal amounts in
such Rule 144A Global Certificates (the "TRANSFER") as further specified in
Annex A hereto. In connection with the Transfer, the Transferor hereby certifies
that:
(a) the Transfer is being effected in accordance with transfer
restrictions set forth in the Pooling and Servicing Agreement
and the Certificates;
(b) the Transfer is being effected pursuant to and in accordance
with Rule 903 or Rule 904 under the Securities Act of 1933, as
amended (the "SECURITIES ACT") and, accordingly, the
Transferor hereby further certifies that:
(i) the Transfer is not being made to a person in the
United States and (x) at the time the buy order was
originated, the Transferee was outside the United
States or the Transferor and each Person acting on
its behalf reasonably believed and believes that the
Transferee was outside the United States or (y) the
transaction was executed in, on or through the
facilities of a "designated offshore securities
market" (as defined Rule 902 of Regulation S under
the Securities Act) and neither the Transferor nor
any Person acting on its behalf knows that the
transaction was prearranged with a buyer in the
United States,
(ii) no directed selling efforts have been made in
contravention of the requirements of Rule 903 or Rule
904 of Regulation S under the Securities Act, and
(iii) the transaction is not part of a plan or scheme to
evade the registration requirements of the Securities
Act.
Upon consummation of the proposed transfer in accordance with the terms
of the Pooling and Servicing Agreement, the transferred beneficial interest will
be subject to the restrictions on transfer enumerated in the legends printed on
the Regulation S Global Certificates by which the Transferee shall hold its
interest and in the Pooling and Servicing Agreement and the Securities Act.
Dated: Very truly yours,
[Name of Transferor]
By:__________________________
Name:
Title:
ANNEX A
The Transferor owns and proposes to transfer a beneficial interest in the
following:
(i) G Class [___] Rule 144A Global Certificate, principal
amount of $_____________,
(ii) G Class [___] Rule 144A Global Certificate, principal
amount of $_____________, or
(iii) G Class [___] Rule 144A Global Certificate, principal
amount of $_____________.
EXHIBIT F-4
FORM OF TRANSFER CERTIFICATE FOR EXCHANGE OR
TRANSFER FROM REGULATION S GLOBAL CERTIFICATE TO
RULE 144A GLOBAL CERTIFICATE
U.S. Bank National Association
as Trustee
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Reference is hereby made to the Pooling and Servicing Agreement
("Pooling and Servicing Agreement"), dated as of December 1, 2005, among
Structured Asset Mortgage Investments II Inc., as Depositor, ▇▇▇▇▇ Fargo Bank,
National Association, as Master Servicer and Securities Administrator, EMC
Mortgage Corporation, as Seller and Company and U.S. Bank National Association
as Trustee. Capitalized terms used but not defined herein are used as defined in
the Pooling and Servicing Agreement:
The undersigned (the "TRANSFEROR") owns and proposes to transfer the
interests in the Regulation S Global Certificates specified in Annex A hereto
(the "CERTIFICATES"), in the principal amounts in such Regulation S Global
Certificates (the "TRANSFER"), as further specified in Annex A hereto. In
connection with the Transfer, the Transferor hereby certifies that:
(a) the Transfer is being effected in accordance with transfer
restrictions set forth in the Pooling and Servicing Agreement
and the Certificates;
(b) the Transfer is being effected pursuant to and in accordance
with Rule 144A under the Securities Act of 1933, as amended
(the "SECURITIES ACT"), and, accordingly, the Transferor
hereby further certifies that:
(i) the Transferee is purchasing the beneficial interest
for its own account, or for one or more accounts with
respect to which the Transferee exercises sole
investment discretion,
(ii) the Transferor reasonably believes that the
Transferee and each such account is a "qualified
institutional buyer" within the meaning of Rule 144A,
and
(iii) the Transfer is in compliance with any applicable
blue sky securities laws of any state of the United
States.
Upon consummation of the proposed Transfer in accordance with the terms
of the Pooling and Servicing Agreement, the transferred beneficial interest will
be subject to the restrictions on transfer enumerated in the legends printed on
the Rule 144A Global Certificates by which the Transferee shall hold its
interest and in the Pooling and Servicing Agreement and the Securities Act.
Dated: Very truly yours,
[Name of Transferor]
By:__________________________
Name:
Title:
ANNEX A
The Transferor owns and proposes to transfer a beneficial interest in the
following:
(i) G Class [___] Regulation S Global Certificate, principal
amount of $_____________,
(ii) G Class [___] Regulation S Global Certificate, principal
amount of $_____________, or
(iii) G Class [___] Regulation S Global Certificate, principal
amount of $_____________.
EXHIBIT G
CUSTODIAL AGREEMENT
THIS CUSTODIAL AGREEMENT (as amended and supplemented from time to
time, the "Agreement'), dated as of December 29, 2005, by and among U.S. BANK
NATIONAL ASSOCATION not individually but solely as trustee under the Pooling and
Servicing Agreement defined below (including its successors under the Pooling
and Servicing Agreement defined below, the "Trustee"), STRUCTURED ASSET MORTGAGE
INVESTMENTS II INC., as depositor (together with any successor in interest, the
"Depositor"), ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, as master servicer and
securities administrator (together with any successor in interest or successor
under the Pooling and Servicing Agreement referred to below, the "Master
Servicer") and ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, as custodian (together
with any successor in interest or any successor appointed hereunder, the
"Custodian").
WITNESSETH THAT:
WHEREAS, the Depositor, the Master Servicer, the Trustee and EMC
Mortgage Corporation, as seller and company (the "Seller") have entered into a
Pooling and Servicing Agreement, dated as of December 1, 2005, relating to the
issuance of Prime Mortgage Trust, Mortgage Pass-Through Certificates, Series
2005-5 (as in effect on the date of this agreement, the "Original Pooling and
Servicing Agreement," and as amended and supplemented from time to time, the
"Pooling and Servicing Agreement'); and
WHEREAS, the Custodian has agreed to act as agent for the Trustee for
the purposes of receiving and holding certain documents and other instruments
delivered by the Depositor or the Master Servicer under the Pooling and
Servicing Agreement and the Servicers under their respective Servicing
Agreements, all upon the terms and conditions and subject to the limitations
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the Trustee, the Depositor, the
Master Servicer and the Custodian hereby agree as follows:
DEFINITIONS
Capitalized terms used in this Agreement and not defined herein shall
have the meanings assigned in the Original Pooling and Servicing Agreement,
unless otherwise required by the context herein.
CUSTODY OF MORTGAGE DOCUMENTS
(a) CUSTODIAN TO ACT AS AGENT: ACCEPTANCE OF MORTGAGE FILES. The
Custodian, as the duly appointed custodial agent of the Trustee for these
purposes, acknowledges (subject to any exceptions noted in the Initial
Certification referred to in Section 2.3(a)), receipt of the Mortgage Files
relating to the Mortgage Loans identified on the schedule attached hereto (the
"Mortgage Files") and declares that it holds and will hold such Mortgage Files
as agent for the Trustee, in trust, for the use and benefit of all present and
future Certificateholders.
(b) RECORDATION OF ASSIGNMENTS. If any Mortgage File includes one or
more assignments of Mortgage to the Trustee in a state which is specifically
excluded from the Opinion of Counsel delivered by the Seller to the Trustee and
the Custodian pursuant to the provisions of Section 2.01 of the Pooling and
Servicing Agreement, each such assignment shall be delivered by the Custodian to
the Depositor for the purpose of recording it in the appropriate public office
for real property records, and the Depositor, at no expense to the Custodian,
shall promptly cause to be recorded in the appropriate public office for real
property records each such assignment of Mortgage and, upon receipt thereof from
such public office, shall return each such assignment of Mortgage to the
Custodian.
(c) REVIEW OF MORTGAGE FILES.
(i) On or prior to the Closing Date, in accordance with Section 2.02 of
the Pooling and Servicing Agreement, the Custodian shall deliver to the Trustee
an Initial Certification in the form annexed hereto as Exhibit One evidencing
receipt (subject to any exceptions noted therein) of a Mortgage File for each of
the Mortgage Loans listed on the Schedule attached hereto (the "Mortgage Loan
Schedule").
(ii) Within 90 days of the Closing Date, the Custodian agrees, for the
benefit of the Holders of the Mortgage Pass-Through Certificates, to review, in
accordance with the provisions of Section 2.02 of the Pooling and Servicing
Agreement, each such document, and shall deliver to the Depositor and the
Trustee an Interim Certification in the form annexed hereto as Exhibit Two to
the effect that all such documents have been executed and received and that such
documents relate to the Mortgage Loans identified on the Mortgage Loan Schedule,
except for any exceptions listed on Schedule A attached to such Interim
Certification. The Custodian shall be under no duty or obligation to inspect,
review or examine said documents, instruments, certificates or other papers to
determine that the same are genuine, enforceable, or appropriate for the
represented purpose or that they have actually been recorded or that they are
other than what they purport to be on their face.
(iii) Not later than 180 days after the Closing Date, the Custodian
shall review the Mortgage Files as provided in Section 2.02 of the Pooling and
Servicing Agreement and deliver to the Depositor and the Trustee a Final
Certification in the form annexed hereto as Exhibit Three evidencing the
completeness of the Mortgage Files.
(iv) In reviewing the Mortgage Files as provided herein and in the
Pooling and Servicing Agreement, the Custodian shall make no representation as
to and shall not be responsible to verify (i) the validity, legality,
enforceability, due authorization, recordability, sufficiency or genuineness of
any of the documents included in any Mortgage File or (ii) the collectibility,
insurability, effectiveness or suitability of any of the documents in any
Mortgage File.
Upon receipt of written request from the Trustee, the Custodian shall
as soon as practicable supply the Trustee with a list of all of the documents
relating to the Mortgage Loans missing from the Mortgage Files.
(d) NOTIFICATION OF BREACHES OF REPRESENTATIONS AND WARRANTIES. Upon
discovery by the Custodian of a breach of any representation or warranty made by
the Depositor as set forth in the Pooling and Servicing Agreement with respect
to a Mortgage Loan relating to a Mortgage File, the Custodian shall give prompt
written notice to the Depositor, the related Servicer and the Trustee.
(e) CUSTODIAN TO COOPERATE; RELEASE OF MORTGAGE FILES. Upon receipt of
written notice from the Trustee that the Seller has repurchased a Mortgage Loan
pursuant to Article II of the Pooling and Servicing Agreement, and that the
purchase price therefore has been deposited in the Master Servicer Collection
Account or the Distribution Account, then the Custodian agrees to promptly
release to the Seller the related Mortgage File.
Upon the Custodian's receipt of a request for release (a "Request for
Release") substantially in the form of Exhibit D to the Pooling and Servicing
Agreement signed by a Servicing Officer of the related Servicer stating that it
has received payment in full of a Mortgage Loan or that payment in full will be
escrowed in a manner customary for such purposes, the Custodian agrees promptly
to release to the related Servicer the related Mortgage File. The Depositor
shall deliver to the Custodian and the Custodian agrees to accept the Mortgage
Note and other documents constituting the Mortgage File with respect to any
Substitute Mortgage Loan.
From time to time as is appropriate for the servicing or foreclosure of
any Mortgage Loan, including, for this purpose, collection under any Primary
Insurance Policy, the related Servicer (or if the Servicer does not, the Master
Servicer) shall deliver to the Custodian a Request for Release signed by a
Servicing Officer requesting that possession of all of the Mortgage File be
released to the related Servicer and certifying as to the reason for such
release and that such release will not invalidate any insurance coverage
provided in respect of the Mortgage Loan under any of the Insurance Policies.
Upon receipt of the foregoing, the Custodian shall deliver the Mortgage File to
the related Servicer. The related Servicer shall cause each Mortgage File or any
document therein so released to be returned to the Custodian when the need
therefore by the related Servicer no longer exists, unless (i) the Mortgage Loan
has been liquidated and the Liquidation Proceeds relating to the Mortgage Loan
have been deposited in the Master Servicer Collection Account or the
Distribution Account or (ii) 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 related Servicer has delivered to the Custodian a
certificate of a Servicing Officer certifying as to the name and address of the
Person to which such Mortgage File or such document was delivered and the
purpose or purposes of such delivery.
At any time that a Servicer is required to deliver to the Custodian a
Request for Release, the Servicer shall deliver two copies of the Request for
Release if delivered in hard copy or the Servicer may furnish such Request for
Release electronically to the Custodian, in which event the Servicing Officer
transmitting the same shall be deemed to have signed the Request for Release. In
connection with any Request for Release of a Mortgage File because of a
repurchase of a Mortgage Loan, such Request for Release shall be followed by an
assignment of mortgage, without recourse, representation or warranty from the
Trustee to the Seller and the related Mortgage Note shall be endorsed without
recourse, representation or warranty by the Trustee and be returned to the
Seller provided, however, that in the case of a Mortgage Loan that is registered
on the MERS System, no assignment of mortgage or endorsement of the Mortgage
Note by the Trustee shall be required. In connection with any Request for
Release of a Mortgage File because of the payment in full of a Mortgage Loan,
such Request for Release shall be accompanied by a certificate of satisfaction
or other similar instrument to be executed by or on behalf of the Trustee and
returned to the related Servicer.
(f) ASSUMPTION AGREEMENTS. In the event that any assumption agreement,
substitution of liability agreement or sale of servicing agreement is entered
into with respect to any Mortgage Loan subject to this Agreement in accordance
with the terms and provisions of the Pooling and Servicing Agreement, the Master
Servicer, to the extent provided in the related Servicing Agreement, shall cause
the related Servicer to notify the Custodian that such assumption or
substitution agreement has been completed by forwarding to the Custodian the
original of such assumption or substitution agreement, which shall be added to
the related Mortgage File and, for all purposes, shall be considered a part of
such Mortgage File to the same extent as all other documents and instruments
constituting parts thereof.
CONCERNING THE CUSTODIAN
(a) CUSTODIAN AS BAILEE AND AGENT OF THE TRUSTEE. With respect to each
Mortgage Note, Mortgage and other documents constituting each Mortgage File
which are delivered to the Custodian, the Custodian is exclusively the bailee
and custodial agent of the Trustee and has no instructions to hold any Mortgage
Note or Mortgage for the benefit of any person other than the Trustee and the
Certificateholders and undertakes to perform such duties and only such duties as
are specifically set forth in this Agreement and in the Pooling and Servicing
Agreement. Except upon compliance with the provisions of Section 2.5 of this
Agreement, no Mortgage Note, Mortgage or Mortgage File shall be delivered by the
Custodian to the Depositor, the Servicers or the Master Servicer or otherwise
released from the possession of the Custodian.
(b) CUSTODIAN MAY OWN MORTGAGE PASS-THROUGH CERTIFICATES. The Custodian
in its individual or any other capacity may become the owner or pledgee of
Mortgage Pass-Through Certificates with the same rights it would have if it were
not Custodian.
(c) MASTER SERVICER TO PAY CUSTODIAN'S FEES AND EXPENSES. The Master
Servicer covenants and agrees to pay to the Custodian from time to time, and the
Custodian shall be entitled to, reasonable compensation for all services
rendered by it in the exercise and performance of any of the powers and duties
hereunder of the Custodian, and the Master Servicer will pay or reimburse the
Custodian upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Custodian in accordance with any of the
provisions of this Agreement (including the reasonable compensation and the
expenses and disbursements of its counsel and of all persons not regularly in
its employ), except any such expense, disbursement or advance as may arise from
its negligence or bad faith or to the extent that such cost or expense is
indemnified by the Depositor pursuant to the Pooling and Servicing Agreement.
(d) CUSTODIAN MAY RESIGN; TRUSTEE MAY REMOVE CUSTODIAN. The Custodian
may resign from the obligations and duties hereby imposed upon it as such
obligations and duties relate to its acting as Custodian of the Mortgage Loans.
Upon receiving such written notice of resignation, the Trustee shall either take
custody of the Mortgage Files itself and give prompt written notice thereof to
the Depositor, the Master Servicer and the Custodian, or promptly appoint a
successor Custodian by written instrument, in duplicate, one copy of which
instrument shall be delivered to the resigning Custodian and one copy to the
successor Custodian. If the Trustee shall not have taken custody of the Mortgage
Files and no successor Custodian shall have been so appointed and have accepted
appointment within 30 days after the giving of such written notice of
resignation, the resigning Custodian may petition any court of competent
jurisdiction for the appointment of a successor Custodian.
The Trustee may remove the Custodian at any time with the consent of
the Master Servicer. In such event, the Trustee shall appoint, or petition a
court of competent jurisdiction to appoint, a successor Custodian hereunder. Any
successor Custodian shall be a depository institution subject to supervision or
examination by federal or state authority, shall be able to satisfy the other
requirements contained in Section 3.6 and shall be unaffiliated with the
Servicer or the Depositor.
Any resignation or removal of the Custodian and appointment of a
successor Custodian pursuant to any of the provisions of this Section 3.4 shall
become effective upon acceptance of appointment by the successor Custodian. The
Trustee shall give prompt notice to the Depositor and the Master Servicer of the
appointment of any successor Custodian. No successor Custodian shall be
appointed by the Trustee without the prior approval of the Depositor and the
Master Servicer.
(e) MERGER OR CONSOLIDATION OF CUSTODIAN. Any Person into which the
Custodian may be merged or converted or with which it may be consolidated, or
any Person resulting from any merger, conversion or consolidation to which the
Custodian shall be a party, or any Person succeeding to the business of the
Custodian, shall be the successor of the Custodian 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.
(f) REPRESENTATIONS OF THE CUSTODIAN. The Custodian hereby represents
that it is a depository institution subject to supervision or examination by a
federal or state authority, has a combined capital and surplus of at least
$15,000,000 and is qualified to do business in the jurisdictions in which it
will hold any Mortgage File.
MISCELLANEOUS PROVISIONS
(a) NOTICES. All notices, requests, consents and demands and other
communications required under this Agreement or pursuant to any other instrument
or document delivered hereunder shall be in writing and, unless otherwise
specifically provided, may be delivered personally, by telegram or telex, or by
registered or certified mail, postage prepaid, return receipt requested, at the
addresses specified on the signature page hereof (unless changed by the
particular party whose address is stated herein by similar notice in writing).
(b) AMENDMENTS. No modification or amendment of or supplement to this
Agreement shall be valid or effective unless the same is in writing and signed
by all parties hereto, and neither the Depositor, the Master Servicer nor the
Trustee shall enter into any amendment hereof except as permitted by the Pooling
and Servicing Agreement. The Trustee shall give prompt notice to the Custodian
of any amendment or supplement to the Pooling and Servicing Agreement and
furnish the Custodian with written copies thereof.
(c) GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED A CONTRACT MADE UNDER
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES
THEREOF OTHER THAN SECTION 5-1401 AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
(d) RECORDATION OF AGREEMENT. To the extent permitted by applicable
law, this Agreement is subject to recordation in all appropriate public offices
for real property records in all the counties or other comparable jurisdictions
in which any or all 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 Depositor and at the Trust's expense, but only upon
direction accompanied by an Opinion of Counsel reasonably satisfactory to the
Depositor to the effect that the failure to effect such recordation is likely to
materially and adversely affect the interests of the Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
(e) SEVERABILITY OF PROVISIONS. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, agreements, provisions or terms
shall be deemed severable from the remaining covenants, agreements, provisions
or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the holders thereof.
IN WITNESS WHEREOF, this Agreement is executed as of the date first
above written.
Address: U.S. BANK NATIONAL ASSOCIATION
not individually but solely as Trustee
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
By:
----------------------------------------
Name:
Attention: Title
Telecopy:
Confirmation:
Address: STRUCTURED ASSET MORTGAGE INVESTMENTS II
INC.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ By:
----------------------------------------
Name:
Title:
Address: ▇▇▇▇▇ FARGO BANK,
NATIONAL ASSOCIATION, as Master Servicer
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
By:
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
Address: ▇▇▇▇▇ FARGO BANK,
NATIONAL ASSOCIATION, as Custodian
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ By:
----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
STATE OF NEW YORK )
)ss.:
COUNTY OF NEW YORK )
On the 29th day of December 2005 before me, a notary public in and for
said State, personally appeared ______________, known to me to be a(n)
_____________ of U.S. Bank National Assocation that executed the within
instrument, and also known to me to be the person who executed it on behalf of
said corporation and acknowledged to me that such corporation executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
--------------------------------
Notary Public
[SEAL]
STATE OF MARYLAND )
) ss.:
COUNTY OF ▇▇▇▇▇▇ )
On the 29th day of December 2005 before me, a notary public in and for
said State, personally appeared ▇▇▇▇▇▇ ▇▇▇▇▇▇, known to me to be an Assistant
Vice President of ▇▇▇▇▇ Fargo Bank, National Association, a national banking
association that executed the within instrument, and also known to me to be the
person who executed it on behalf of said national banking association, and
acknowledged to me that such national banking association executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
--------------------------------
Notary Public
[SEAL]
STATE OF NEW YORK )
)ss.:
COUNTY OF NEW YORK )
On the 29th day of December 2005 before me, a notary public in and for
said State, personally appeared ___________________, known to me to be a Vice
President of Structured Asset Mortgage Investments II Inc., one of the
corporations that executed the within instrument, and also known to me to be the
person who executed it on behalf of said corporation, and acknowledged to me
that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
--------------------------------
Notary Public
[Notarial Seal]
STATE OF MARYLAND )
)ss.:
COUNTY OF ▇▇▇▇▇▇ )
On the 29th day of December 2005 before me, a notary public in and for
said State, personally appeared ▇▇▇▇▇▇ ▇▇▇▇▇▇, known to me to be an Vice
President of ▇▇▇▇▇ Fargo Bank, National Association, one of the corporations
that executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
--------------------------------
Notary Public
[Notarial Seal]
EXHIBIT ONE
FORM OF CUSTODIAN INITIAL CERTIFICATION
December 29, 2005
U.S. Bank National Association Structured Asset Mortgage Investments II Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Structured Asset Mortgage Investments II Inc.
Prime Mortgage Trust, Mortgage Pass-Through Certificates, Series 2005-5
Re: Custodial Agreement, dated as of December 29, 2005, by and
among U.S. Bank National Association, Structured Asset
Mortgage Investments II Inc. and ▇▇▇▇▇ Fargo Bank, National
Association relating to Prime Mortgage Trust 2005-5, Mortgage
Pass-Through Certificates, Series 2005-5
Ladies and Gentlemen:
In accordance with Section 2.3(a) of the above-captioned Custodial
Agreement, and subject to Section 2.02(a) of the Pooling and Servicing
Agreement, the undersigned, as Custodian, hereby certifies that it has received
a Mortgage File (which contains an original Mortgage Note or lost note
affidavit) to the extent required in Section 2.01 of the Pooling and Servicing
Agreement with respect to each Mortgage Loan listed in the Mortgage Loan
Schedule, with any exceptions listed on Schedule A attached hereto.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Custodial Agreement.
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
By:
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Name:
Title:
EXHIBIT TWO
FORM OF CUSTODIAN INTERIM CERTIFICATION
___________, 20__
U.S. Bank National Association Structured Asset Mortgage Investments II Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Structured Asset Mortgage Investments II Inc.
Prime Mortgage Trust, Mortgage Pass-Through Certificates, Series 2005-5
Re: Custodial Agreement, dated as of December 29, 2005, by and
among U.S. Bank National Association, Structured Asset
Mortgage Investments II Inc. and ▇▇▇▇▇ Fargo Bank, National
Association relating to Prime Mortgage Trust 2005-5, Mortgage
Pass-Through Certificates, Series 2005-5
-------------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.3(b) of the above-captioned Custodial
Agreement, and subject to Section 2.02(a) of the Pooling and Servicing
Agreement, the undersigned, as Custodian, hereby certifies that it has received
a Mortgage File to the extent required pursuant to Section 2.01 of the Pooling
and Servicing Agreement with respect to each Mortgage Loan listed in the
Mortgage Loan Schedule, and it has reviewed the Mortgage File and the Mortgage
Loan Schedule and has determined that: all required documents have been executed
and received and that such documents relate to the Mortgage Loans identified on
the Mortgage Loan Schedule, with any exceptions listed on Schedule A attached
hereto.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Custodial Agreement.
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
By:
-----------------------------------------
Name:
---------------------------------------
Title:
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EXHIBIT THREE
FORM OF CUSTODIAN FINAL CERTIFICATION
_______, 20__
U.S. Bank National Association Structured Asset Mortgage Investments II Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Structured Asset Mortgage Investments II Inc.
Prime Mortgage Trust 2005-5, Mortgage Pass-Through Certificates, Series 2005-5
Re: Custodial Agreement, dated as of December 29, 2005, by and
among U.S. Bank National Association, Structured Asset
Mortgage Investments II Inc. and ▇▇▇▇▇ Fargo Bank, National
Association relating to Prime Mortgage Trust 2005-5, Mortgage
Pass-Through Certificates, Series 2005-5
-------------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.3 of the above-captioned Custodial
Agreement and subject to Section 2.02(b) of the Pooling and Servicing Agreement,
the undersigned, as Custodian, hereby certifies that it has received a Mortgage
File to the extent required pursuant to Section 2.01 of the Pooling and
Servicing Agreement with respect to each Mortgage Loan listed in the Mortgage
Loan Schedule, and it has reviewed the Mortgage File and the Mortgage Loan
Schedule and has determined that all required documents have been executed and
received and that such documents relate to the Mortgage Loans identified in the
Mortgage Loan Schedule, with any exceptions listed on Schedule A attached
hereto.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Custodial Agreement or in the
Pooling and Servicing Agreement, as applicable.
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
By:____________________
Name: _______________
Title: _______________
1
SCHEDULE A
(Provided upon request)
EXHIBIT H-1
SERVICING AGREEMENT
CITIMORTGAGE, INC.
MORTGAGE LOAN PURCHASE AND SERVICING AGREEMENT
This is a Mortgage Loan Purchase and Servicing Agreement (the
"Agreement"), dated and effective as of August 1, 2003, by and between EMC
MORTGAGE CORPORATION, (the "Initial Purchaser," and the Initial Purchaser or the
Person, if any, to which the Initial Purchaser has assigned its rights and
obligations hereunder as Purchaser with respect to a Mortgage Loan, and each of
their respective successors and assigns, the "Purchaser"), and CITIMORTGAGE,
INC. (the "Seller").
WITNESSETH:
WHEREAS, Purchaser has agreed to purchase from Seller, and Seller has
agreed to sell to Purchaser, certain mortgage loans (the "Mortgage Loans") on a
non-recourse, servicing retained basis, and which shall be delivered as whole
loans on the date provided herein (the "Closing Date");
WHEREAS, Each Mortgage Loan is secured by a mortgage, deed of trust or
other instrument creating a first lien on a residential dwelling located in the
jurisdiction indicated on the Mortgage Loan Schedule; and
WHEREAS, Purchaser and Seller wish to prescribe the manner of the
purchase, conveyance, management, servicing and control of the Mortgage Loans.
NOW THEREFORE, In consideration of the premises and the mutual
agreements hereinafter set forth, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Purchaser and
Seller agree as follows:
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES
SECTION 1.01 DEFINITIONS.
Whenever used herein, the following words and phrases, unless the
context otherwise requires, shall have the following meanings:
AGREEMENT: This Mortgage Loan Purchase and Servicing Agreement,
including all exhibits hereto, and all amendments hereof and supplements hereto.
APPRAISED VALUE: As to any Mortgage Loan, the value of the related
Mortgaged Property based upon the appraisal made for the originator of the
Mortgage Loan at the origination of the Mortgage Loan or the sales price of the
Mortgaged Property, whichever is less, provided, however, that in the case of a
no cash out Refinanced Mortgage Loan, such value may be based solely upon the
original appraisal.
ASSIGNMENT OF MORTGAGE: An assignment of the Mortgage, notice of
transfer or equivalent instrument, in recordable form, that when properly
completed and recorded, is sufficient under the laws of the jurisdiction wherein
the related Mortgaged Property is located to reflect of record the sale of the
Mortgage Loan to Purchaser.
BUSINESS DAY: Any day other than (i) a Saturday or Sunday, or (ii) a
day on which banking or savings and loan institutions in the States of New York
,Missouri and Texas are authorized or obligated by law or executive order to be
closed.
CITIBANK: Citibank (New York State) and any successors or assigns.
CLOSING DATE: August 14, 2003, or such other date as may be mutually
agreed to by Seller and Purchaser.
CLOSING DOCUMENTS: The documents required pursuant to Section 8.01.
CODE: The Internal Revenue Code of 1986, or any successor statute
thereto.
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.
CUSTODIAL ACCOUNT: The separate account or accounts created and
maintained pursuant to Section 10.09 which shall be entitled "CitiMortgage,
Inc., in trust for the [Purchaser], Owner of Fixed Rate 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 identified by
the Purchaser, and its successors and assigns, as custodian for the Purchaser.
CUSTOMARY SERVICING PROCEDURES: Procedures (including collection
procedures) (i) that Seller customarily employs and exercises in servicing and
administering mortgage loans for its own account; (ii) which are in accordance
with accepted mortgage servicing practices of prudent lending institutions which
service mortgage loans of the same type as such Mortgage Loan in the
jurisdiction where the related Mortgaged Property is located; and (iii) which
are in accordance with ▇▇▇▇▇▇ Mae and FHLMC servicing practices and procedures
(including any waivers obtained by Seller).
CUT-OFF DATE: August 1, 2003.
DELETED MORTGAGE LOAN: A Mortgage Loan replaced or to be replaced with
a Qualified Substitute Mortgage Loan in accordance with this Agreement.
DETERMINATION DATE: The sixteenth (16th) day, or if such sixteenth
(16th) day is not a Business Day, the Business Day immediately preceding such
sixteenth (16th) day, of the month of the related Remittance Date.
DUE DATE: The day of the month of the related Remittance Date on which
each 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 each Remittance Date, the period beginning
on the second day of the month preceding the month of the Remittance Date, and
ending on the first day of the month in which the Remittance Date occurs.
ELIGIBLE ACCOUNT: An account established and maintained: (i) within
FDIC insured accounts created, maintained and monitored by the Seller 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 Seller (or any sub-servicer) or (iii) with an entity which is an
institution whose deposits are insured by the FDIC, 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, or (d)
a principal subsidiary of a bank holding company, 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 Seller (or any sub-servicer) and of any
creditors or depositors of the institution in which such account is maintained
or (v) in a separate non-trust account without FDIC 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 Seller
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.
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.
ESCROW ACCOUNT: The separate account or accounts created and maintained
pursuant to Section 10.11 which shall be entitled "CitiMortgage, Inc., in trust
for the [Purchaser], Owner of Fixed Rate 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: The amounts constituting ground rents, taxes,
assessments, water rates, mortgage insurance premiums, fire and hazard insurance
premiums and 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 14.01.
▇▇▇▇▇▇ ▇▇▇: The Federal National Mortgage Association, or any successor
thereto.
▇▇▇▇▇▇ MAE GUIDE(S): The ▇▇▇▇▇▇ ▇▇▇ Selling Guide and the ▇▇▇▇▇▇ Mae
Servicing Guide and all amendments or additions thereto and any waivers obtained
by Seller.
FDIC: The Federal Deposit Insurance Corporation or any successor
organization.
FHLMC: The Federal Home Loan Mortgage Corporation, or any successor
thereto.
FHLMC GUIDE: The FHLMC Single Family Seller/Servicer Guide and all
amendments or additions thereto.
FIDELITY BOND: A fidelity bond required to be obtained by Seller
pursuant to Section 10.16.
HUD: The United States Department of Housing and Urban Development or
any successor thereto.
INITIAL PURCHASER: EMC Mortgage Corporation.
LIQUIDATING LOAN: A Mortgage Loan as to which, prior to the close of
business on the Business Day next preceding the Due Date, (a) has become an REO
Property or (b) Seller and the Mortgagor have agreed in writing that Seller will
accept a deed to the related Mortgaged Property in lieu of foreclosure in whole
or partial satisfaction of the Mortgage Loan.
LIQUIDATION PROCEEDS: Cash (other than REO Disposition Proceeds)
received in connection with the liquidation of a defaulted Mortgage Loan,
whether through the sale or assignment of the Mortgage Loan, trustee's sale,
foreclosure sale or otherwise.
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.
MONTHLY PAYMENT: With respect to any Mortgage Loan, the scheduled
combined payment of principal and interest payable by a Mortgagor under the
related Mortgage Note on each Due Date.
MORTGAGE: The mortgage, deed of trust or other instrument creating a
first lien on an estate in fee simple in real property securing a Mortgage Note,
including any rider incorporated by reference therein.
MORTGAGEE: The mortgagee or beneficiary named in the Mortgage and the
successors and assigns of such mortgagee or beneficiary.
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 INTEREST RATE: With respect to each Mortgage Loan, the annual
rate at which interest accrues on such Mortgage Loan from time to time in
accordance with the provisions of the related Mortgage Note.
MORTGAGE LOAN: 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. The term Mortgage Loan includes,
without limitation, the contents of the Mortgage File, the Monthly Payments,
Principal Prepayments, Liquidation Proceeds, insurance proceeds, Condemnation
Proceeds, REO Disposition Proceeds and all other rights, benefits, proceeds and
obligations arising from or in connection with such Mortgage Loan.
MORTGAGE LOAN DOCUMENTS: The documents listed in Exhibit H hereto
pertaining to any Mortgage Loan.
MORTGAGE LOAN REMITTANCE RATE: As to each Mortgage Loan, the annual
rate of interest payable to Purchaser, which shall be equal to the Mortgage
Interest Rate minus the Servicing Fee Rate.
MORTGAGE LOAN SCHEDULE: The schedule of Mortgage Loans attached hereto
as Exhibit F, such schedule setting forth the information listed on Schedule I
attached hereto.
MORTGAGE NOTE: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
MORTGAGED PROPERTY: The real property securing repayment of the debt
evidenced by a Mortgage Note, consisting of a single parcel of property
considered to be real estate under the law of the state in which it is located
improved by a residential dwelling.
MORTGAGOR: The obligor on a Mortgage Note.
OFFICERS' CERTIFICATE: A certificate signed by the Chairman of the
Board or the Vice Chairman of the Board or the President, a Senior Vice
President or a Vice President and by the Treasurer or the Secretary or one of
the Assistant Treasurers or Assistant Secretaries of Seller, or by other duly
authorized officers or agents of Seller and delivered to Purchaser as required
by this Agreement.
OPINION OF COUNSEL: A written opinion of counsel.
OTS: Office of Thrift Supervision, or any successor thereto.
PERSON: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
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 and is not accompanied by an amount of interest representing scheduled
interest due on any date or dates in any month or months subsequent to the month
of prepayment.
PURCHASE PRICE: The price paid on the Closing Date by Purchaser to
Seller in exchange for the Mortgage Loans purchased on the Closing Date as
calculated as provided in Section 4.01.
PURCHASE PRICE PERCENTAGE: As defined in Section 4.01.
PURCHASER: The Initial Purchaser and any subsequent permitted holder or
holders of the Mortgage Loans.
QUALIFIED INSURER: Any insurer acceptable to Seller and qualified to do
business in the state in which any related Mortgaged Property is 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 ▇▇▇▇▇▇
▇▇▇ or FHLMC.
QUALIFIED SUBSTITUTE MORTGAGE LOAN: A mortgage loan substituted by
Seller for a Deleted Mortgage Loan which must, on the date of such substitution,
(a) have an outstanding principal balance, after deduction of all scheduled
payments due in the month of substitution (or in the case of a substitution of
more than one mortgage loan for a Deleted Mortgage Loan, an aggregate principal
balance), not in excess of the Stated Principal Balance of the Deleted Mortgage
Loan (the amount of any shortfall plus interest thereon equal to the related
Mortgage Interest Rate will be distributed by Seller to Purchaser in the month
of substitution), (b) have a Mortgage Interest Rate equal to the Mortgage
Interest Rate of the Deleted Mortgage Loan, (c) have a remaining term to
maturity not greater than (and not more than one year less than) that of the
Deleted Mortgage Loan, and (d) comply as of the date of substitution with each
representation and warranty set forth in Section 6.01.
RATING AGENCY: Standard & Poor's, Fitch, Inc., ▇▇▇▇▇'▇ Investor
Services 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.
RECORD DATE: The close of business of the last Business Day of the
month preceding the month of the related Remittance Date.
REFINANCED MORTGAGE LOAN: A Mortgage Loan the proceeds of which were
not used to purchase the related Mortgaged Property 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.
REMITTANCE DATE: The eighteenth (18th) day of any month, beginning in
September, 2003, or if such eighteenth (18th) day is not a Business Day, the
first Business Day immediately following such eighteenth (18th) day or if the
Mortgage Loans have been sold to third party investors, the Remittance Date, the
first Business Day immediately preceding such eighteenth (18th) day.
REO ACCOUNT: The account or accounts maintained pursuant to Section
10.17.
REO DISPOSITION: The final sale by Seller of a Mortgaged Property
acquired by Seller in foreclosure or by deed in lieu of foreclosure.
REO DISPOSITION PROCEEDS: All amounts received with respect to an REO
Disposition pursuant to Section 10.17.
REO PROPERTY: A Mortgaged Property acquired by Seller through
foreclosure or deed in lieu of foreclosure, as described in Section 10.17.
REPURCHASE PRICE: With respect to any Mortgage Loan, a price equal to
(a) the product of the Stated Principal Balance of the Mortgage Loan times (i)
during the period of the first twelve (12) months following the Closing Date,
the greater of (x) the Purchase Price Percentage and (y) 100%, or (ii) for any
date thereafter, the lesser of (x) the Purchase Price Percentage and (y) 100%,
plus (b) interest on such Stated Principal Balance at a rate equal to the
Mortgage Loan Remittance Rate from the date to which interest has last been paid
and distributed to Purchaser to the first day of the month following the month
of repurchase.
SELLER: CitiMortgage, Inc., its successors and assigns.
SERVICING ADVANCES: All customary, reasonable and necessary
out-of-pocket costs and expenses incurred in the performance by Seller of its
servicing obligations, including, but not limited to, the cost of (a) the
inspection, preservation, restoration and protection of the Mortgaged Property,
(b) any enforcement or judicial proceedings, including foreclosures, (c) the
management and liquidation of the Mortgaged Property if the Mortgaged Property
is acquired in satisfaction of the Mortgage and (d) compliance with the
obligations under Section 10.13.
SERVICING FEE: With respect to each Mortgage Loan, the amount of the
annual fee Purchaser shall pay to Seller, which shall, for each 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 Purchaser to pay the Servicing Fee is limited to, and payable
solely from, the interest portion (including recoveries with respect to interest
from Liquidation Proceeds and other proceeds, to the extent permitted by Section
10.10) of related Monthly Payments collected by Seller, or as otherwise provided
under Section 10.10.
SERVICING FEE RATE: With respect to each Mortgage Loan, the servicing
fee rate of .25% per annum.
SERVICING FILE: With respect to each Mortgage Loan, the file retained
by the Seller 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 H, the originals of which are delivered to the
Purchaser or its designee pursuant to Section 5.03.
SERVICING OFFICER: Any officer of the Seller involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name appears on a list of servicing officers furnished by the Seller to the
Purchaser upon request, as such list may from time to time be amended.
STATED PRINCIPAL BALANCE: As to each Mortgage Loan, (a) the principal
balance of the Mortgage Loan at the Cut-off Date after giving effect to payments
of principal due on or before such date, whether or not received, minus (b) all
amounts previously distributed to Purchaser with respect to the Mortgage Loan
representing payments or recoveries of principal, or advances in lieu thereof.
SUBSERVICER: Any mortgage loan servicing institution other than Seller
which is responsible for the servicing and administration of any Mortgage Loan
or any successor appointed pursuant to any Subservicing Agreement; provided that
the Subservicer is an entity that engages in the business of servicing loans,
and in either case shall be 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 Subservicer to perform its obligations hereunder
and under the Subservicing Agreement, and in either case shall be a FHLMC 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 seller/servicers imposed by ▇▇▇▇▇▇ Mae or FHLMC, or
which would require notification to ▇▇▇▇▇▇ ▇▇▇ or FHLMC. In addition, each
Subservicer 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 Subservicing Agreement.
SUBSERVICING ACCOUNT: As defined in Section 10.06.
SUBSERVICING AGREEMENT: Each agreement providing for the servicing of
any of the Mortgage Loans by a Subservicer.
SUBSERVICING FEE: As to each Mortgage Loan, the monthly fee payable to
the Subservicer, paid by Seller from its Servicing Fee.
SECTION 1.02 GENERAL INTERPRETIVE PRINCIPLES.
For purposes of this Agreement, except as otherwise expressly provided
or unless the context otherwise requires:
(a) the terms defined in this Agreement have the meanings assigned
to them in this Agreement and include the plural as well as
the singular, and the use of any gender herein shall be deemed
to include the other gender;
(b) accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally
accepted accounting principles;
(c) references herein to "Articles", "Sections", "Subsections",
"Paragraphs", and other subdivisions without reference to a
document are to designated Articles, Sections, Subsections,
Paragraphs and other subdivisions of this Agreement;
(d) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the
same Section in which the reference appears, and this rule
shall also apply to Paragraphs and other subdivisions;
(e) the words "herein", "hereof", "hereunder" and other words of
similar import refer to this Agreement as a whole and not to
any particular provision; and
(f) the term "include" or "including" shall mean without
limitation by reason of enumeration.
ARTICLE II
AGREEMENT TO PURCHASE
SECTION 2.01 AGREEMENT TO PURCHASE.
Seller agrees to sell, and Purchaser agrees to purchase, Mortgage Loans
having an Stated Principal Balance of $54,938,421.65as of Cut-off Date, or in
such other amount as agreed by Purchaser and Seller as evidenced by the actual
aggregate principal balance of the Mortgage Loans accepted by Purchaser on the
Closing Date.
ARTICLE III
MORTGAGE LOAN SCHEDULE
SECTION 3.01 MORTGAGE LOAN SCHEDULE.
Seller shall deliver the Mortgage Loan Schedule to Purchaser at least
five (5) Business Days prior to the Closing Date.
ARTICLE IV
PURCHASE PRICE
SECTION 4.01 PURCHASE PRICE.
The Purchase Price for the Mortgage Loans shall be 100.623925% (the
"Purchase Price Percentage") of the aggregate Stated Principal Balance of the
Mortgage Loans, as of the Cut-off Date. Purchaser will pay to Seller accrued
interest on the Stated Principal Balance of each Mortgage Loan as of the Cut-off
Date at its Mortgage Loan Remittance Rate from the Cut-off Date up to and
including the day preceding the Closing Date, prorated on the basis of a 360 day
year consisting of twelve (12) months of thirty (30) days each.
Purchaser shall own and be entitled to receive with respect to each
Mortgage Loan purchased, (a) all scheduled principal due after the Cut-off Date,
(b) all other recoveries of principal collected on or after the Cut-off Date
(provided, however, that all scheduled payments of principal due on or before
the Cut-off Date and collected by Seller after the Cut-off Date shall belong to
Seller), and (c) all payments of interest on the Mortgage Loans net of the
Servicing Fee (minus that portion of any such interest payment that is allocable
to the period prior to the Cut-off Date). The Stated Principal Balance of each
Mortgage Loan as of the Cut-off Date is determined after application to the
reduction of principal of payments of principal due on or before the Cut-off
Date whether or not collected, together with any unscheduled principal
prepayments collected prior to the related Cut-off Date. Therefore, for the
purposes of this Agreement, payments of scheduled principal and interest prepaid
for a Due Date beyond the Cut-off Date shall not be applied to the principal
balance as of the Cut-off Date. Such prepaid amounts (minus the applicable
Servicing Fee) shall be the property of Purchaser. Seller shall deposit any such
prepaid amounts into the Custodial Account, which account is established for the
benefit of Purchaser, for remittance by Seller to Purchaser on the first
Remittance Date such payment is to be applied. All payments of principal and
interest, less the applicable Servicing Fee, due on a Due Date following the
Cut-off Date shall belong to Purchaser.
ARTICLE V
CONVEYANCE OF MORTGAGE LOANS; POSSESSION OF MORTGAGE FILES;
BOOKS AND RECORDS; DELIVERY OF MORTGAGE
LOAN DOCUMENTS; TRANSFER OF MORTGAGE LOANS
SECTION 5.01 CONVEYANCE OF MORTGAGE LOANS; POSSESSION OF MORTGAGE
FILES.
Seller, simultaneously with the execution and delivery of this
Agreement, does hereby sell, transfer, assign, set over and convey to Purchaser,
without recourse, but subject to the terms of this Agreement, all the right,
title and interest of Seller in and to the Mortgage Loans. The contents of each
Mortgage File not delivered to Purchaser are and shall be held in trust by
Seller for the benefit of Purchaser as the owner thereof and Seller's possession
of the portion of each Mortgage File so retained is for the sole purpose of
servicing the related Mortgage Loan, and such retention and possession by Seller
is in a custodial capacity only. Seller shall 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. Upon the
purchase of the Mortgage Loans, the ownership of each Mortgage Note, Mortgage
and each related Mortgage File is vested in Purchaser and the ownership of all
records and documents with respect to each related Mortgage Loan prepared by or
which come into the possession of Seller shall immediately vest in Purchaser and
shall be retained and maintained, in trust, by Seller in such custodial capacity
only. The portion of each Mortgage File so retained shall be appropriately
marked to clearly reflect the sale of the related Mortgage Loan to Purchaser.
Seller shall release from its custody the contents of any Mortgage File only in
accordance with written instructions from Purchaser, unless such release is
required as incidental to Seller's servicing of the Mortgage Loans or is in
connection with a repurchase of any Mortgage Loan pursuant to Section 6.03.
SECTION 5.02 BOOKS AND RECORDS.
All rights arising out of the Mortgage Loans including, but not limited
to, all funds received on or in connection with a Mortgage Loan shall be held by
Seller in trust for the benefit of Purchaser as the owner of the Mortgage Loans.
The sale of each Mortgage Loan shall be reflected on Seller's balance
sheet and other financial statements as a sale of assets by Seller. Seller shall
be responsible for maintaining, and shall maintain, a complete set of books and
records for each Mortgage Loan which shall be clearly marked to reflect the
ownership of each Mortgage Loan by Purchaser in Seller's computer system.
Seller shall maintain in its possession, available for inspection by
the Purchaser upon reasonable notice, 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 FHLMC, 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
FHLMC,. To the extent that original documents are not required for purposes of
realization of Liquidation Proceeds or insurance proceeds, documents maintained
by the Seller may be in the form of microfilm or microfiche or other imaged
format.
Seller shall maintain with respect to each Mortgage Loan and shall make
available for inspection upon reasonable notice 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, Seller shall provide 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 Seller and without cost to Seller or such
supervisory agents or examiners, to any documentation regarding the Mortgage
Loans that may be required by any applicable regulator.
SECTION 5.03 DELIVERY OF MORTGAGE LOAN DOCUMENTS.
Seller shall deliver to Purchaser or custodian, as directed by
Purchaser, the Mortgage Loan Documents as required by Exhibit H hereto for each
Mortgage Loan no later than five (5) Business Days prior to the Closing Date.
Seller shall forward to Purchaser or its designee, original documents
evidencing an assumption, modification, consolidation or extension of any
Mortgage Loan entered into in accordance with this Agreement within two (2)
weeks of their execution; provided, however, that Seller shall provide Purchaser
or its designee, with a certified true copy of any such document submitted for
recordation within two (2) weeks 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 270 days of its submission for recordation. In the
event Seller cannot deliver the original of such documents submitted for
recording due to a delay by the recording office in the applicable jurisdiction,
Seller shall instead deliver a recording receipt of such recording office or, if
such recording receipt is not available, an Officer's Certificate from Seller
confirming that such documents have been accepted for recording. Any such
document shall be delivered to Purchaser or its designee promptly upon receipt
thereof from the related recording office.
From time to time Purchaser shall deliver or cause to be delivered to
Seller, as soon as practicable following receipt of a written request from
Seller, by first class mail and at no expense to Seller, any Mortgage Loan
Document needed by Seller in connection with the servicing of a Mortgage Loan.
Seller's request for the release of a Mortgage Loan Document shall specify in
reasonable detail the reason for Seller's request. During the time that any such
Mortgage Loan Document is in the possession of Seller, such possession shall be
deemed to be in trust for the benefit of Purchaser and Seller shall promptly
return to Purchaser or its designee any Mortgage Loan Document so released when
Seller's need for such Mortgage Loan Document no longer exists. Purchaser shall
indemnify and hold Seller harmless against any and all claims, losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments, and any other costs, fees and expenses that Seller may sustain
in connection with any third party claim in any way related to Purchaser's or
its designee's failure to release, in a timely manner, the Mortgage Loan
Documents requested by Seller. Purchaser shall pay all costs, fees and expenses
in connection with the possession of the Mortgage Loan Documents.
Purchaser shall provide Seller with written notice at least fifteen
(15) days prior to any transfer of the Mortgage Loan Documents.
SECTION 5.04 TRANSFER OF MORTGAGE LOANS.
The Initial Purchaser shall have the right, without the consent of
Seller, to assign its interest under this Agreement with respect to all or some
of the Mortgage Loans, and designate any person to exercise any rights of
Purchaser hereunder, and the assignee or designee shall accede to the rights and
obligations hereunder of Purchaser with respect to such Mortgage Loans;
provided, however, that Seller shall not be required to recognize any assignment
to the extent that it would result in Mortgage Loans being serviced for more
than three (3) Purchasers hereunder. All references to Purchaser shall be deemed
to include its assignee or designee.
Seller shall keep at its servicing office books and records in which,
subject to such reasonable regulations as it may prescribe, Seller shall note
transfers of the Mortgage Loans. No transfer of the Mortgage Loans may be made
unless such transfer is in compliance with the terms hereof. For the purposes of
this Agreement, Seller shall be under no obligation to deal with any person with
respect to this Agreement or the Mortgage Loans unless the books and records
show such person as Purchaser of the Mortgage Loans. Purchaser may, subject to
the terms of this Agreement, sell and transfer, in whole or in part, the
Mortgage Loans, provided that no such sale and transfer shall be binding upon
Seller unless such transferee shall agree in writing in the form of (i) an
Assignment, Assumption and Recognition Agreement attached hereto as Exhibit G,
or (ii) a FNMA Tri-Party Agreement or (iii) a FHLMC Form 960; (collectively, the
"Reconstitution Agreements"], to be bound by the terms of this Agreement and an
executed copy of such Reconstitution Agreement shall have been delivered to
Seller. Upon receipt thereof, Seller shall ▇▇▇▇ its books and records to reflect
the ownership of the Mortgage Loans by such assignee, and the previous Purchaser
shall be released from its obligations hereunder to the extent such obligations
relate to Mortgage Loans sold by Purchaser. This Agreement shall be binding upon
and inure to the benefit of Purchaser and Seller and their respective permitted
successors, assignees and designees.
SECTION 5.05 QUALITY CONTROL PROCEDURES.
Seller must have 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 must be
capable of evaluating and monitoring the overall quality of its loan production
and servicing activities. The program is 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.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES;
REMEDIES FOR BREACH
SECTION 6.01 REPRESENTATIONS AND WARRANTIES REGARDING INDIVIDUAL
MORTGAGE LOANS.
Seller hereby represents and warrants to Purchaser that, as to each
Mortgage Loan, as of the Closing Date (or such other date as may be specified
herein):
(a) The information set forth on the Mortgage Loan Schedule and
the magnetic tape or diskette delivered to Purchaser by Seller
is complete, true and correct as of the Cut-off Date;
(b) The Mortgage Note and the Mortgage have not been assigned or
pledged, and Seller has good and marketable title thereto, and
Seller is the sole owner and holder of the Mortgage Loan free
and clear of any and all liens, claims, encumbrances,
participation interests, equities, pledges, charges or
security interests of any nature and has full right and
authority, subject to no interest or participation of, or
agreement with, any other party, to sell and assign the same
pursuant to this Agreement;
(c) The Mortgage is a valid and subsisting first lien on the
property therein described, and the Mortgaged Property is free
and clear of any and all adverse claims, encumbrances and
liens having priority over the first lien of the Mortgage
except for (i) liens for real estate taxes and special
assessments not yet due and payable, (ii) covenants,
conditions and restrictions, rights of way, easements and
other matters of public record as of the date of recording
being acceptable to mortgage lending institutions generally
and specifically referred to in the lender's title insurance
policy delivered to the originator of the Mortgage Loan and
which do not adversely affect the Appraised Value of the
Mortgaged Property, and (iii) other matters to which like
properties are commonly subject which do not materially
interfere with the benefits of the security intended to be
provided by the Mortgage or the use, enjoyment, value or
marketability of the related Mortgaged Property. Any security
agreement, chattel mortgage or equivalent document related to
the Mortgage and delivered to Purchaser establishes in Seller
a valid and subsisting first lien on the property described
therein, and Seller has full right to sell and assign the same
to Purchaser;
(d) The terms of the Mortgage Note and the Mortgage have not been
impaired, waived, altered or modified in any respect, except
by a written instrument which has been recorded, if required
by law, or, if necessary, to protect the interest of
Purchaser. The substance of any such alteration or
modification is reflected on the Mortgage Loan Schedule and
has been approved by the private mortgage guaranty insurer, if
any;
(e) No instrument of release, alteration, modification or waiver
has been executed in connection with the Mortgage Loan, and no
Mortgagor has been released, in whole or in part, except in
connection with an assumption agreement which has been
approved by the private mortgage guaranty insurer, if any, and
except such Mortgage Loan which contains in the related
Mortgage File evidence of a release or waiver or an assumption
agreement discharging the original borrower from all of the
debt obligations in connection with the related Mortgage Loan
and providing for the assumption of all such debt obligations
by the party assuming the obligations under the Mortgage Loan
and, in each case, terms of which are reflected in the
Mortgage Loan Schedule;
(f) There are no defaults in complying with the terms of the
Mortgage, and, all taxes, governmental assessments, insurance
premiums, water, sewer and municipal charges, leasehold
payments or ground rents which previously became due and owing
have been paid, or an escrow of funds has been established in
an amount sufficient to pay for every such item which remains
unpaid and which has been assessed but is not yet due and
payable. Seller has not advanced funds, or induced, solicited
or knowingly received any advance of funds by a party other
than the Mortgagor, directly or indirectly, for the payment of
any amount required by the Mortgage Note or Mortgage, except
for interest accruing from the date of the Mortgage Note or
date of disbursement of the Mortgage proceeds, whichever is
greater, to the day which precedes by one month the Due Date
of the first installment of principal and interest;
(g) There is no proceeding pending or threatened for the total or
partial condemnation of the Mortgaged Property, nor is such a
proceeding currently occurring, and such property is undamaged
by waste, fire, earthquake or earth movement, windstorm,
flood, tornado or other casualty, so as to affect materially
and adversely the value of the Mortgaged Property as security
for the Mortgage Loan or the use for which the premises were
intended. 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 Seller 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;
(h) There are no mechanics' or similar liens or claims which have
been filed for work, labor or material (and no rights are
outstanding that under law could give rise to such lien)
affecting the Mortgaged Property which are, or may be, liens
prior or equal to, or coordinate with, the lien of the related
Mortgage unless such lien is insured under the related title
insurance policy;
(i) All improvements which were included for the purpose of
determining the Appraised Value of the Mortgaged Property lie
wholly within the boundaries and building restriction lines of
the Mortgaged Property and, to Seller's knowledge, no
improvements on adjoining properties encroach upon the
Mortgaged Property (other than minor encroachments (i) which
do not affect the value of the Mortgage Loan or the
Purchaser's interest therein and (ii) to which properties
similar to the Mortgaged Property within the same jurisdiction
are commonly subject and which do not interfere with the
benefits of the security intended to be provided by the
related Mortgage or the use, enjoyment, value or marketability
of the related Mortgaged Property);
(j) No improvement located on or being part of the Mortgaged
Property is in violation of any applicable zoning law or
regulation 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
and the Mortgaged Property is lawfully occupied under
applicable law;
(k) All parties which have had any interest in the Mortgage Loan,
whether as mortgagee, assignee, pledgee or otherwise, are (or,
during the period in which they held and disposed of such
interest, were) (i) in compliance with any and all applicable
licensing requirements of the laws of the state wherein the
Mortgaged Property is located, and (ii) either (1) organized
under the laws of such state, or (2) qualified to do business
in such state, or (3) federal savings and loan associations,
federal savings banks or national banks having authorized
offices in such state, or (4) not doing business in such
state;
(l) All Mortgage Loans will be current as of the Closing Date. No
payment required under any Mortgage Loan has been more than
thirty (30) days delinquent prior to the Cut-off Date. All
payments due prior to the Cut-off Date for such Mortgage Loan
have been made as of the Closing Date; the Mortgage Loan has
not been dishonored; there are no material defaults under the
terms of the Mortgage Loan. As of the 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 Seller's servicing
collection system.
(m) The Mortgage File contains each of the documents and
instruments specified to be included therein duly executed and
in due and proper form, and each such document or instrument
is in form acceptable to ▇▇▇▇▇▇ Mae and FHLMC, and each
Mortgage Note, Mortgage, and appraisal are on forms acceptable
to ▇▇▇▇▇▇ ▇▇▇ and FHLMC;
(n) The Mortgage Note and the related Mortgage are genuine, and
each is the legal, valid and binding obligation of the maker
thereof, enforceable in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization or other similar laws relating to
or affecting the enforcement of creditors' rights and by
general principles of equity. All parties to the Mortgage Note
and the Mortgage had legal capacity to execute the Mortgage
Note and the Mortgage, and each Mortgage Note and Mortgage
have been duly and properly executed by such parties;
(o) Any and all requirements of any federal, state or local law
including, without limitation, usury, truth-in-lending, real
estate settlement procedures, consumer credit protection,
equal credit opportunity or disclosure laws applicable to the
Mortgage Loan have been complied with. None of the Mortgage
Loans are (a) loans subject to 12 CFR Part 226.31, 12 CFR Part
226.32 or 12 CFR Part 226.34 of Regulation Z, the regulation
implementing TILA, which implements the Home Ownership and
Equity Protection Act of 1994, as amended or (b) classified
and/or defined as a "high cost", "covered", or "predatory"
loan under any other state, federal or local law or regulation
or ordinance, including, but not limited to, the States of
Georgia and North Carolina. The Seller maintains, and shall
maintain, evidence of such compliance as required by
applicable law or regulation and shall make such evidence
available for inspection at the Seller's office during normal
business hours upon reasonable advance notice;
(p) The proceeds of the Mortgage Loan have been fully disbursed,
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 Mortgage Loans and the
recording of the Mortgage were paid;
(q) Any future advances made prior to the Cut-off Date have been
consolidated with the outstanding principal amount secured by
the Mortgage, and the secured principal amount, as
consolidated, bears a single interest rate and single
repayment term reflected on the Mortgage Loan Schedule. The
lien of the Mortgage securing the consolidated principal
amount is expressly insured as having first lien priority by a
title insurance policy, an endorsement to the policy insuring
the Mortgagee's consolidated interest or by other title
evidence. The consolidated principal amount does not exceed
the original principal amount of the Mortgage Loan;
(r) All improvements upon the Mortgaged Property are insured by a
generally acceptable insurer acceptable to ▇▇▇▇▇▇ Mae or FHLMC
against loss by fire, hazards of extended coverage and such
other hazards as are customary in the area where the Mortgaged
Property is located, pursuant to insurance policies conforming
to the requirements of Section 10.15 hereof. All individual
insurance policies (collectively, the "hazard insurance
policy") are the valid and binding obligation of the insurer
and contain a standard mortgagee clause insuring Seller, its
successors and assigns, as mortgagee. All premiums thereon
have been paid. The Mortgage obligates the Mortgagor
thereunder to maintain all such insurance at the Mortgagor's
cost and expense, and upon the Mortgagor's failure to do so,
authorizes the holder of the Mortgage to obtain and maintain
such insurance at the Mortgagor's cost and expense and to seek
reimbursement therefor from the Mortgagor. Neither the Seller
(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;
(s) 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 of
acceleration; and Seller has not waived any default, breach,
violation or event of acceleration;
(t) The Mortgage Loan is not subject to any right of rescission,
set-off, counterclaim or defense, including, without
limitation, the defense of usury, nor will the operation of
any of the terms of the Mortgage Note or the Mortgage, or the
exercise of any right thereunder, render either the Mortgage
Note or the Mortgage unenforceable, in whole or in part, or
subject to any right of rescission, set-off, counterclaim or
defense, including 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 Closing Date the Mortgagor
was not a debtor in any state or federal bankruptcy or
insolvency proceeding;
(u) All provisions of each 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 Seller or the
Mortgagor, or for any other reason under such coverage; The
mortgage interest rate for the Mortgage Loan as set forth on
the Mortgage Loan Schedule is net of any such insurance
premium. None of the Mortgage Loans are subject to
"lender-paid" mortgage insurance;
(v) The Mortgage Note is not secured by any collateral, pledged
account or other security except the lien of the corresponding
Mortgage and the security interest of any applicable security
agreement or chattel mortgage referred to in Section 6.01(c).
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;
(w) The Mortgage contains customary and enforceable provisions
which render the rights and remedies of the holder thereof
adequate for the realization against the Mortgaged Property of
the benefits of the security provided thereby, including, (i)
in the case of a Mortgage designated as a deed of trust, by
trustee's sale, and (ii) otherwise by judicial foreclosure,
subject only to rights of redemption, seizure and other laws
that would not materially interfere with the ultimate
realization of the benefits of the security;
(x) No fraud, error, omission, misrepresentation, negligence or
similar occurrence with respect to a Mortgage Loan has taken
place on the part of Seller or the Mortgagor or, any other
party involved in the origination of the Mortgage Loan;
(y) The Mortgaged Property consists of a single parcel of real
property with a one family residence erected thereon, or a
two-to-four family dwelling, or an individual condominium
unit, planned unit development unit or townhouse; 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 Seller's
underwriting guidelines. As of the date of origination, no
portion of any Mortgaged Property was used for commercial
purposes, and since the origination date, no portion of any
Mortgaged Property has been, or currently is, used for
commercial purposes;
(z) There exist no deficiencies with respect to escrow deposits
and payments, if such are required, for which customary
arrangements for repayment thereof have not been made, and, to
Seller's knowledge, no escrow deposits or payments of other
charges or payments due Seller have been capitalized under the
Mortgage or the related Mortgage Note;
(aa) The collection and servicing practices used by Seller with
respect to the Mortgage Note and Mortgage have been in all
respects legal and customary in the mortgage servicing
business;
(bb) The Mortgage Loan is covered by an ALTA or CLTA mortgage title
insurance policy, or such other generally acceptable form of
policy or insurance acceptable to ▇▇▇▇▇▇ ▇▇▇ or FHLMC, issued
by and the valid and binding obligation of a title insurer
acceptable to ▇▇▇▇▇▇ Mae or FHLMC,and qualified to do business
in the jurisdiction where the Mortgaged Property is located,
insuring Seller, its successors and assigns, as to the first
priority lien of the Mortgage in the original principal amount
of the Mortgage Loan and against any loss by reason of the
invalidity or unenforceability of the lien resulting from the
provisions of the Mortgage. Such mortgage title insurance
policy insures Seller, its successors and assigns as mortgagee
and the assignment to Purchaser of Seller's interest in such
mortgage title insurance policy does not require the consent
of or notification to the insurer, such mortgage title
insurance policy is in full force and effect and will be in
full force and effect and inure to the benefit of Purchaser
upon the consummation of the transactions contemplated by this
Agreement. No claims have been made under such mortgage title
insurance policy and, to Seller's knowledge, no prior holder
of the related Mortgage, including Seller, has done, by act or
omission, anything which would impair the coverage of such
mortgage title insurance policy;
(cc) Principal payments on the Mortgage Loan commenced no more than
sixty (60) days after the proceeds of the Mortgage Loan were
disbursed. The Mortgage Loan bears interest at the Mortgage
Interest Rate. With respect to each Mortgage Loan, the
Mortgage Note is payable on the first day of each month in
Monthly Payments which will fully amortize the Stated
Principal Balance of the Mortgage Loan over its remaining term
at the Mortgage Interest Rate. 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. The Mortgage Note does not permit negative
amortization. None of the Mortgage Loans are "interest-only"
Mortgage Loans. None of the Mortgage Loans are considered
agricultural loans;
(dd) The Mortgage Loans were originated or purchased by the Seller
and were underwritten in accordance with ▇▇▇▇▇▇ ▇▇▇ guidelines
(inclusive of any negotiated items or waivers incorporated
into Seller's ▇▇▇▇▇▇ Mae Master Agreement);
(ee) The Mortgage has not been satisfied, 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 Seller has not waived the performance by the
Mortgagor of any action, if the Mortgagor's failure to perform
such action would cause the Mortgage Loan to be in default,
nor has the Seller waived any default resulting from any
action or inaction by the Mortgagor;
(ff) The Seller 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, the Seller 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 and
supervising the servicing of the Mortgage Loan. The Seller
intends to relinquish all rights to possess, control and
monitor the Mortgage Loan, except for the purposes of
servicing the Mortgage Loan as set forth in this Agreement.
After the Closing Date, the Seller will not have any right to
modify or alter the terms of the sale of the Mortgage Loan and
the Seller 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 Seller and the Purchaser;
(gg) 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 Seller has not
received notification that any such proceedings are scheduled
to commence at a future date;
(hh) The Mortgage File contains an appraisal of the related
Mortgaged Property signed prior to the final approval of the
mortgage loan application by an appraiser approved by the
Seller, who had no interest, direct or indirect, in the
Mortgaged Property or in any loan made on the security
thereof, and whose compensation is not affected by the
approval or disapproval of the Mortgage Loan, and the
appraisal and appraiser both satisfy the requirements of
▇▇▇▇▇▇ ▇▇▇ or FHLMC 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 FHLMC;
(ii) 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;
(jj) 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;
(kk) The Mortgage Loan does not contain balloon or "graduated
payment" features; No Mortgage Loan is subject to a buydown
agreement or contains any buydown provision;
(ll) The Mortgagor is not in bankruptcy and, the Mortgagor is not
insolvent and the Seller 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;
(mm) The Assignment of Mortgage is in recordable form and is
acceptable for recording under the laws of the jurisdiction in
which the Mortgaged Property is located;
(nn) As of the Closing Date, the Mortgaged 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;
(oo) The Mortgagor has not notified the Seller, and the Seller has
no knowledge of any relief requested or allowed to the
Mortgagor under the Soldiers' and Sailors' Civil Relief Act of
1940;
(pp) No Mortgage Loan is a construction or rehabilitation Mortgage
Loan or was made to facilitate the trade-in or exchange of a
Mortgaged Property;
(qq) The Mortgagor for each Mortgage Loan is a natural person;
(rr) None of the Mortgage Loans are Co-op Loans;
(ss) With respect to each Mortgage Loan that has a prepayment
penalty feature, each such prepayment penalty is enforceable
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 five 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) the amount allowable by
FNMA;
(tt) 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 Mortgaged Property and (b) substantially all of the
proceeds of such Mortgage Loan were used to acquire or to
improve or protect the Mortgaged 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;
(uu) The Mortgage Loan was originated by a mortgagee approved by
the Secretary of Housing and Urban Development pursuant to
sections 203 and 211 of the National Housing Act, a savings
and loan association, a savings bank, a commercial bank,
credit union, insurance company or similar institution which
is supervised and examined by a federal or state authority;
(vv) None of the Mortgage Loans are simple interest Mortgage Loans
and none of the Mortgaged Properties are timeshares;
(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 Closing
Date, delivered to the Purchaser or its designee, or its
assignee;
(xx) Each Mortgage Loan shall acceptable for delivery to ▇▇▇▇▇▇ ▇▇▇
as described in the ▇▇▇▇▇▇ Mae Guide.
SECTION 6.02 REPRESENTATIONS AND WARRANTIES REGARDING SELLER.
Seller hereby represents and warrants to Purchaser as of the Closing
Date:
(a) Seller is duly organized, validly existing and in good
standing under the laws of Delaware and is and will remain in
compliance with the laws of each state in which any Mortgaged
Property is located to the extent necessary to ensure the
enforceability of each Mortgage Loan and the servicing of the
Mortgage Loan in accordance with the terms of this Agreement,
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
Seller by any such state.
(b) Seller has power and authority and legal right to hold,
transfer and convey each Mortgage Loan, to sell each Mortgage
Loan and to execute and deliver this Agreement and to perform
in accordance herewith; the execution, delivery and
performance of this Agreement (including all instruments of
transfer to be delivered pursuant to this Agreement) by Seller
and the consummation of the transactions contemplated hereby
have been duly and validly authorized; this Agreement
evidences the valid, binding and enforceable obligation of
Seller, subject to applicable law; and all requisite corporate
action has been taken by Seller to make this Agreement valid
and binding upon Seller in accordance with its terms;
(c) No approval of the transactions contemplated by this Agreement
from any federal or state regulatory authority having
jurisdiction over Seller is required or, if required, such
approval has been or will, prior to the Closing Date, be
obtained;
(d) The consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of Seller and
will not result in the breach of any term or provision of the
charter or by-laws of Seller or result in the breach of any
term or provision of, or conflict with or constitute a default
under or result in the acceleration of any obligation under,
any agreement, indenture or loan or credit agreement or other
instrument to which Seller or its property is subject, or
result in the violation of any law, rule, regulation, order,
judgment or decree to which Seller or its property is subject;
(e) The transfer, assignment and conveyance of the Mortgage Notes
and the Mortgage Loans by Seller pursuant to this Agreement
are not subject to the bulk transfer or any similar statutory
provisions in effect in any applicable jurisdiction;
(f) There is no action, suit, proceeding or investigation pending
or, to the best knowledge of Seller, threatened against Seller
which, either individually or in the aggregate, would result
in any material adverse change in the business, operations,
financial condition, properties or assets of Seller, or in any
material impairment of the right or ability of Seller to carry
on its business substantially as now conducted or which would
draw into question the validity of this Agreement or the
Mortgage Loans or of any action taken or to be taken in
connection with the obligations of Seller contemplated herein,
or which would materially impair the ability of Seller to
perform under the terms of this Agreement;
(g) Seller does not believe, nor does it have any reason or cause
to believe, that it cannot perform each and every covenant
contained in this Agreement;
(h) The origination and servicing practices used by the Seller and
any prior originator or 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 origination and servicing business. Each Mortgage
Loan has been serviced in all material respects with Customary
Servicing Procedures. With respect to escrow deposits and
payments that the Seller, on behalf of an investor, is
entitled to collect, all such payments are in the possession
of, or under the control of, the Seller, and there exist no
deficiencies in connection therewith for which customary
arrangements for repayment thereof have not been made. All
escrow payments have been collected in full compliance with
state and federal law and the provisions of the related
Mortgage Note and Mortgage. 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;
(i) The Seller used no selection procedures that identified the
Mortgage Loans as being less desirable or valuable than other
comparable mortgage loans in the Seller's portfolio at the
Cut-off Date;
(j) The Seller 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;
(k) Seller is an approved seller/servicer of residential mortgage
loans for ▇▇▇▇▇▇ ▇▇▇, FHLMC and HUD, with such facilities,
procedures and personnel necessary for the sound servicing of
such mortgage loans. The Seller is duly qualified, licensed,
registered and otherwise authorized under all applicable
federal, state and local laws, and regulations, if applicable,
meets the minimum capital requirements set forth by the OTS,
and is in good standing to sell mortgage loans to and service
mortgage loans for ▇▇▇▇▇▇ Mae and FHLMC and no event has
occurred which would make Seller unable to comply with
eligibility requirements or which would require notification
to either ▇▇▇▇▇▇ ▇▇▇ or FHLMC;
(l) The sale of the Mortgage Loans is not undertaken with the
intent to hinder, delay or defraud any of the Seller's
creditors;
(m) No statement, tape, diskette, form, report or other document
prepared by, or on behalf of, Seller pursuant to this
Agreement 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;
(n) The Seller acknowledges and agrees that the Servicing Fee
represents reasonable compensation for performing such
services and that the entire Servicing Fee shall be treated by
the Seller, for accounting and tax purposes, as compensation
for the servicing and administration of the Mortgage Loans
pursuant to this Agreement. In the opinion of Seller, the
consideration received by Seller upon the sale of the Mortgage
Loans to Purchaser under this Agreement constitutes fair
consideration for the Mortgage Loans under current market
conditions; and
(o) The Seller has not dealt with any broker, investment banker,
agent or other person that may be entitled to any commission
or compensation in connection with the sale of the Mortgage
Loans.
SECTION 6.03 REMEDIES FOR BREACH OF REPRESENTATIONS AND WARRANTIES.
It is understood and agreed that the representations and warranties set
forth in Sections 6.01 and 6.02 shall survive delivery of the Mortgage Loans to
Purchaser, or its designee, and shall inure to the benefit of Purchaser,
notwithstanding any restrictive or qualified endorsement on any Mortgage Note or
Assignment of Mortgage or the examination, or lack of examination, of any
Mortgage File.
Upon discovery by either Seller or 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 Purchaser (or which
materially and adversely affects the interest of Purchaser in the related
Mortgage Loan in the case of a representation and warranty relating to a
particular Mortgage Loan), the party discovering such breach shall give prompt
written notice to the other. Purchaser agrees to give written notice of any such
breach, outlining with specificity the section of this Agreement which Purchaser
claims has been violated. Within sixty (60) days of the earlier of either
discovery by it or notice to it of any such breach, Seller shall use its best
efforts to promptly cure such breach in all material respects and, if such
breach cannot be cured during such sixty (60) day period, Seller shall, at
Purchaser's option and not later than ninety (90) days after its discovery or
receipt of notice of such breach, repurchase such Mortgage Loan at the
Repurchase Price.
In the event that any such breach shall involve any representation or
warranty set forth in Section 6.02, and such breach cannot be cured within sixty
(60) days of the earlier of either discovery by or notice to Seller of such
breach, all the Mortgage Loans shall, at Purchaser's option, be repurchased by
Seller at the Repurchase Price. Any repurchase of a Mortgage Loan or Loans
pursuant to the foregoing provisions of this Section 6.03 shall be accomplished
by deposit in the Custodial Account of the amount of the Repurchase Price (after
deducting therefrom any amounts received in respect of such repurchased Mortgage
Loan or Loans and being held in the Custodial Account for future distribution).
However, Seller may, at Purchaser's option and assuming that Seller has
a Qualified Substitute Mortgage Loan, rather than repurchase any Mortgage Loan
as provided above, remove such Mortgage Loan and substitute in its place a
Qualified Substitute Mortgage Loan or Loans, provided, however, that any such
substitution shall be effected not later than ninety (90) days after the Closing
Date. If Seller has no Qualified Substitute Mortgage Loan, it shall repurchase
the deficient Mortgage Loan.
As to any Deleted Mortgage Loan for which Seller substitutes a
Qualified Substitute Mortgage Loan or Loans, Seller shall effect such
substitution by delivering to Purchaser for such Qualified Substitute Mortgage
Loan or Loans the Mortgage Note, the Mortgage, the Assignment of Mortgage and
such other documents and agreements as are required by Section 5.03, with the
Mortgage Note endorsed as required by Section 5.03. Seller shall deposit in the
Custodial Account the Monthly Payment less the Servicing Fee due on such
Qualified Substitute Mortgage Loan or Loans in the month following the date of
such substitution. Accrued interest on the Qualified 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. Monthly
Payments due with respect to Qualified Substitute Mortgage Loans in the month of
substitution will be retained by Seller. For the month of substitution,
distributions to Purchaser will include the Monthly Payment due on such Deleted
Mortgage Loan in the month of substitution, and Seller shall thereafter be
entitled to retain all amounts subsequently received by Seller in respect of
such Deleted Mortgage Loan. Seller shall give written notice to Purchaser that
such substitution has taken place and shall amend the Mortgage Loan Schedule to
reflect the removal of such Deleted Mortgage Loan from the terms of this
Agreement and the substitution of the Qualified Substitute Mortgage Loan. Upon
such substitution, such Qualified Substitute Mortgage Loan or Loans shall be
subject to the terms of this Agreement in all respects, and Seller shall be
deemed to have made with respect to such Qualified Substitute Mortgage Loan or
Loans, as of the date of substitution, the covenants, representations and
warranties set forth in Sections 6.01 and 6.02.
For any month in which Seller substitutes one or more Qualified
Substitute Mortgage Loans for one or more Deleted Mortgage Loans, Seller will
determine the amount (if any) by which the aggregate principal balance of all
such Qualified Substitute Mortgage Loans as of the date of substitution is less
than the aggregate Stated Principal Balance of all such Deleted Mortgage Loans
(after application of scheduled principal payments due in the month of
substitution). The amount of such shortfall (plus interest thereon equal to the
related Mortgage Interest Rate) shall be distributed by Seller in the month of
substitution pursuant to Section 11.01. Accordingly, on the date of such
substitution, Seller will deposit from its own funds into the Custodial Account
an amount equal to the amount of such shortfall.
In addition to such cure, repurchase and substitution obligation,
Seller shall indemnify Purchaser and hold it harmless against any losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees and
related costs, judgments, and other costs and expenses resulting from any claim,
demand, defense or assertion based on or grounded upon, or resulting from, a
breach or alleged breach of Seller's representations and warranties contained in
this Article VI. It is understood and agreed that the obligations of Seller set
forth in this Section 6.03 to cure or repurchase a defective Mortgage Loan and
to indemnify Purchaser as provided in this Section 6.03 constitute the sole
remedies of Purchaser respecting a breach of the foregoing representations and
warranties. The provisions of this Section 6.03 shall survive termination of
this Agreement.
Within five (5) Business Days of the repurchase of a Mortgage Loan or
substitution of a Qualified Substitute Mortgage Loan for a Deleted Mortgage Loan
by Seller, Purchaser agrees to return, such repurchased or Deleted Mortgaged
Loan to Seller, together with the related Mortgage File and all the documents
included therein.
ARTICLE VII
CLOSING
SECTION 7.01 CLOSING.
The closing for the purchase and sale of the Mortgage Loans shall take
place on the Closing Date. The closing shall, at Purchaser's option, be either
by telephone, confirmed by letter or wire as the parties shall agree or
conducted in person, at such place as the parties shall agree.
The closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of Seller under this
Agreement shall be true and correct as of the Closing Date and
no event shall have occurred which, with notice or the passage
of time, or both, would constitute a default under this
Agreement;
(b) Purchaser and Seller shall have received, or Seller's
attorneys shall have received in escrow, all Closing Documents
as specified in Section 8.01 of this Agreement, in such forms
as are agreed upon and acceptable to Purchaser and Seller,
duly executed by all signatories as required pursuant to the
respective terms thereof;
(c) Seller shall have delivered and released to Purchaser or its
designee all documents required to be so delivered hereunder;
and
(d) All other terms and conditions of this Agreement shall have
been complied with.
Subject to the foregoing conditions, Purchaser shall pay to Seller on
the Closing Date the Purchase Price, plus accrued interest pursuant to Section
4.01 of this Agreement, by wire transfer of immediately available funds to the
account designated by Seller in Exhibit I attached hereto.
ARTICLE VIII
CLOSING DOCUMENTS
SECTION 8.01. CLOSING DOCUMENTS.
The Closing Documents shall consist of the following:
(a) This Agreement, in two (2) counterparts; and
(b) The Mortgage Loan Schedule, one copy to be attached hereto.
ARTICLE IX
COSTS
SECTION 9.01 COSTS.
Each party shall bear its own costs and expenses. Purchaser will pay
any commissions due its salesmen, the legal fees and expenses of its attorneys
and all expenses relating to any review of the Mortgage Loans performed by
Purchaser. All other costs and expenses incurred in connection with the transfer
and delivery of the Mortgage Loans, including recording fees and Seller's
attorneys' fees, shall be paid by Seller.
ARTICLE X
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
SECTION 10.01 SELLER TO ACT AS SERVICER.
Seller shall service and administer the Mortgage Loans in accordance
with this Agreement and Customary Servicing Procedures and shall have full power
and authority, acting alone or through Subservicers as provided in Section
10.02, to do or cause to be done any and all things in connection with such
servicing and administration which Seller may deem necessary or desirable and
consistent with the terms of this Agreement and exercise the same care that it
customarily employs for its own account. Seller may perform its servicing
responsibilities through agents or independent contractors, but shall not
thereby be released from any of its responsibilities hereunder, and Seller shall
diligently pursue all of its rights against such agents or independent
contractors.
Consistent with the terms of this Agreement, Seller may waive, modify
or vary any term of any Mortgage Loan or consent to the postponement of strict
compliance with any such term or in any manner grant indulgence to any Mortgagor
if in the Seller's reasonable and prudent determination such waiver,
modification, postponement or indulgence is not materially adverse to the
Purchaser, provided, however, that Seller shall not permit any modification with
respect to any Mortgage Loan that would change the Mortgage Interest Rate or the
Monthly Payment amount, defer or forgive the payment of any principal or
interest, change the outstanding principal amount (except for actual payments of
principal), make any future advances or extend the final maturity date on such
Mortgage Loan. Without limiting the generality of the foregoing, Seller in its
own name or in the name of a Subservicer is hereby authorized and empowered by
Purchaser when Seller believes it appropriate and reasonable in its best
judgment, to execute and deliver, on behalf of itself and Purchaser, all
instruments of satisfaction or cancellation, or of partial or full release,
discharge and all other comparable instruments, with respect to the Mortgage
Loans and the Mortgaged Properties and to institute foreclosure proceedings or
obtain a deed-in-lieu of foreclosure so as to convert the ownership of such
properties, and to hold or cause to be held title to such properties, on behalf
of Purchaser pursuant to the provisions of Section 10.17. Seller shall make all
required Servicing Advances and shall service and administer the Mortgage Loans
in accordance with applicable state and federal law and shall provide to the
Mortgagors any reports required to be provided to them thereby. Purchaser shall
furnish to Seller and any Subservicer any powers of attorney and other documents
reasonably necessary or appropriate to enable Seller and any Subservicer to
carry out their servicing and administrative duties under this Agreement.
Notwithstanding anything in this Agreement to the contrary, if any
Mortgage Loan becomes subject to a Pass-Through Transfer, the Seller (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 Seller, 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 Seller 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 Seller shall not
take any such actions as to which it has been advised that an Adverse REMIC
Event could occur.
The Seller shall not permit the creation of any "interests" (within the
meaning of Section 860G of the Code) in any REMIC. The Company 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.
SECTION 10.02 SUBSERVICING AGREEMENTS BETWEEN SELLER AND SUBSERVICERS.
Seller may enter into Subservicing Agreements with Subservicers for the
servicing and administration of the Mortgage Loans. Each Subservicing Agreement
must impose on the Subservicer requirements conforming to the provisions set
forth in Section 10.06. Subject to Section 16.01, Seller and the Subservicers
may make amendments to the Subservicing Agreements or enter into different forms
of Subservicing Agreements; provided, however, that any such amendments or
different forms shall be consistent with and not violate the provisions of this
Agreement, and that no such amendment or different form shall be made or entered
into which could be reasonably expected to be materially adverse to the
interests of Purchaser, without the consent of Purchaser. Any variation from the
provisions set forth in Section 10.06 relating to insurance or priority
requirements of Subservicing Accounts, or credits and charges to the
Subservicing Accounts or the timing and amount of remittances by the
Subservicers to Seller, are conclusively deemed to be inconsistent with this
Agreement and therefore prohibited.
As part of its servicing activities hereunder, Seller, for the benefit
of Purchaser, shall enforce the obligations of each Subservicer under the
related Subservicing Agreement, including, without limitation, any obligation to
make advances in respect of delinquent payments as required by a Subservicing
Agreement. Such enforcement, including, without limitation, the legal
prosecution of claims, termination of Subservicing Agreements and the pursuit of
other appropriate remedies, shall be in such form and carried out to such an
extent and at such time as Seller, in its good faith business judgment, would
require were it the owner of the related Mortgage Loans. Seller shall pay the
costs of such enforcement at its own expense, but shall be reimbursed therefor
only (i) from a general recovery resulting from such enforcement only to the
extent, if any, that such recovery exceeds all amounts due hereunder in respect
of the related Mortgage Loans or (ii) from a specific recovery of costs,
expenses or attorneys' fees against the party against whom such enforcement is
directed.
SECTION 10.03 SUCCESSOR SUBSERVICERS.
Seller shall be entitled to terminate any Subservicing Agreement and
the rights and obligations of any Subservicer pursuant to any Subservicing
Agreement in accordance with the terms and conditions of such Subservicing
Agreement. In the event of termination of any Subservicer, all servicing
obligations of such Subservicer shall be assumed simultaneously by Seller
without any act or deed on the part of such Subservicer or Seller, and Seller
either shall service directly the related Mortgage Loans or shall enter into a
Subservicing Agreement with a successor Subservicer which qualifies under
Section 10.02. If Seller enters into a Subservicing Agreement with a successor
Subservicer, Seller shall use reasonable efforts to have the successor
Subservicer assume liability for the representations and warranties made by the
terminated Subservicer in respect of the related Mortgage Loans, and in the
event of any such assumption by the successor Subservicer, Seller may, in the
exercise of its business judgment, release the terminated Subservicer from
liability for such representations and warranties.
SECTION 10.04 LIABILITY OF SELLER.
Notwithstanding any Subservicing Agreement, any of the provisions of
this Agreement relating to agreements or arrangements between Seller and a
Subservicer or reference to actions taken through a Subservicer or otherwise,
Seller shall remain obligated and liable to Purchaser for the servicing and
administering of the Mortgage Loans in accordance with the provisions of Section
10.01 without diminution of such obligation or liability by virtue of such
Subservicing Agreements or arrangements or by virtue of indemnification from the
Subservicer for any acts and omissions and to the same extent and under the same
terms and conditions as if Seller alone were servicing and administering the
Mortgage Loans and any other transactions or services relating to the Mortgage
Loans involving the Subservicer shall be deemed to be between the Subservicer
and Seller alone and Purchaser shall have no obligations, duties or liabilities
with respect to the Subservicer including no obligation, duty or liability of
Purchaser to pay Subservicer's fees and expenses except pursuant to an
assumption of Seller's obligations pursuant to Section 16.01. For purposes of
this Agreement, Seller shall be deemed to have received payments on Mortgage
Loans when the Subservicer has received such payments. Seller shall be entitled
to enter into any agreement with a Subservicer for indemnification of Seller by
such Subservicer and nothing contained in this Agreement shall be deemed to
limit or modify such indemnification. Seller shall pay all fees and expenses of
the Subservicer from its own funds, the Servicing Fee or other amounts permitted
to be retained by or reimbursed to Seller hereunder.
The Seller will indemnify and hold Purchaser harmless from any loss,
liability or expense arising out of its use of a Subservicer to perform any of
its servicing duties, responsibilities and obligations hereunder.
In the event that the Seller's responsibilities and duties under this
Agreement are terminated and if requested to do so by the Purchaser, the Seller
shall at its own cost and expense terminate the rights and responsibilities of
the Subservicer effective as of the date of termination of the Seller. The
Seller shall pay all fees, expenses or penalties necessary in order to terminate
the rights and responsibilities of the Subservicer from the Seller's own funds
without reimbursement from the Purchaser.
SECTION 10.05 NO CONTRACTUAL RELATIONSHIP BETWEEN SUBSERVICERS AND
PURCHASER.
Any Subservicing Agreement that may be entered into and any
transactions or services relating to the Mortgage Loans involving a Subservicer
in its capacity as such and not as Seller shall be deemed to be between the
Subservicer and Seller alone, and Purchaser shall not be deemed a party thereto
and shall have no claims, rights, obligations, duties or liabilities with
respect to the Subservicer except as set forth in Section 16.01.
SECTION 10.06 SUBSERVICING ACCOUNTS.
In those cases where a Subservicer is servicing a Mortgage Loan
pursuant to a Subservicing Agreement, the Subservicer will be required to
establish and maintain one or more accounts (collectively, the "Subservicing
Account"). The Subservicing Account shall be an Eligible Account, and shall be
segregated on the books of the Subservicer and relate only to the Mortgage Loans
subject to this Agreement and other mortgage loans owned or serviced by Seller.
All funds deposited in the Subservicing Account with respect to the Mortgage
Loans shall be held for the benefit of Purchaser. The Subservicer shall deposit
in the Subservicing Account on a daily basis all amounts of the type described
in clauses (a) through (f) of Section 10.09, received by the Subservicer with
respect to the Mortgage Loans. On the date set forth in the related Subservicing
Agreement (the "Subservicer Remittance Date"), the Subservicer will be required
to remit all such amounts to Seller, except, if applicable, any Monthly Payment
received which constitutes a late recovery with respect to which a Subservicer
Advance (as defined below) was previously made; and, if the Subservicing
Agreement so provides, the Subservicer will also be required to remit, with
respect to each Mortgage Loan for which the Monthly Payment due on the
immediately preceding Due Date was delinquent as of the Subservicer Remittance
Date, an amount equal to such Monthly Payment net of the related Subservicing
Fee (a "Subservicer Advance"). The Subservicer may deduct from each remittance,
as provided above, an amount equal to Subservicing Fees to which it is then
entitled to the extent not previously paid to or retained by it. Seller is not
obligated to require in a Subservicing Agreement that any Subservicer make
Subservicing Advances as described above; provided, however, that Seller shall
be responsible for making Servicing Advances with respect to such Mortgage
Loans.
SECTION 10.07 LIQUIDATION OF MORTGAGE LOANS.
In the event that any payment due under any Mortgage Loan is not paid
when the same becomes due and payable, or in the event the Mortgagor fails to
perform any other covenant or obligation under the Mortgage Loan and such
failure continues beyond any applicable grace period, Seller shall take such
action as it shall deem to be in the best interest of Purchaser. In the event
that any payment due under any Mortgage Loan remains delinquent for a period of
ninety (90) days or more, Seller shall commence foreclosure proceedings in
accordance with its customary and usual foreclosure procedures. In such
connection, Seller shall from its own funds make all necessary and proper
Servicing Advances through final disposition but only to the extent that Seller
shall determine, in its good faith judgment, that the amount of a proposed
Servicing Advance is recoverable. Seller shall be reimbursed for all Servicing
Advances in accordance with this Agreement.
Notwithstanding anything to the contrary contained herein, the
Purchaser may, at the Purchaser's sole option, terminate the Seller as servicer
of any Mortgage Loan which becomes ninety (90) days or greater delinquent in
payment of a scheduled Monthly Payment, without payment of any termination fee
with respect thereto, provided that the Seller shall on the date said
termination takes effect or, upon notice to Seller for any trailing bills paid
by Seller, be reimbursed for any unreimbursed monthly advances of the Seller's
funds made pursuant to Section 11.03 and any unreimbursed Servicing Advances and
Servicing Fees in each case relating to the Mortgage Loan underlying such
delinquent Mortgage Loan. In the event of any such termination, the provisions
of Section 16.01 hereof shall apply to said termination and the transfer of
servicing responsibilities with respect to such delinquent Mortgage Loan to the
Purchaser or its designee.
In the event that a Mortgage Loan becomes part of a REMIC, and becomes
REO Property, such property shall be disposed of by the Seller, 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 Seller 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. Seller shall 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 Seller shall either itself or through an
agent selected by Seller, 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 perform the tax withholding and reporting
as required by law.
SECTION 10.08 COLLECTION OF MORTGAGE LOAN PAYMENTS.
Continuously from the date hereof until the principal and interest on
all Mortgage Loans are paid in full, Seller will proceed diligently, in
accordance with this Agreement, to collect all payments due under each of the
Mortgage Loans when the same shall become due and payable. Further, Seller will
take special care in ascertaining and estimating annual ground rents, taxes,
assessments, water rates, fire and hazard insurance premiums, mortgage insurance
premiums, and all other charges that, as provided in any Mortgage, will become
due and payable to the end that the installments payable by the Mortgagors will
be sufficient to pay such charges as and when they become due and payable.
SECTION 10.09 ESTABLISHMENT OF CUSTODIAL ACCOUNT; DEPOSITS IN CUSTODIAL
ACCOUNT.
Seller shall segregate and hold all funds collected and received
pursuant to each Mortgage Loan separate and apart from any of its own funds and
general assets and shall establish and maintain one or more Custodial Accounts
(collectively, the "Custodial Account"). The Custodial Account shall be an
Eligible Account. Funds shall be deposited in the Custodial Account within 24
hours of receipt. The creation of any Custodial Account shall be evidenced by
(a) a certification in the form of Exhibit B hereto, in the case of an account
established with Citibank, or (b) a letter agreement in the form of Exhibit C
hereto, in the case of an account held by a depository other than Citibank. In
either case, a copy of such certification or letter agreement shall be furnished
to Purchaser within five (5) Business Days after the Closing Date and a copy to
any subsequent purchaser upon request.
Seller shall deposit in the Custodial Account on a daily basis, or as
and when received from the Subservicer, and retain therein the following
payments and collections received or made by it subsequent to the Cut-off Date
(other than in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date):
(a) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(b) all payments on account of interest on the Mortgage Loans
adjusted to the Mortgage Loan Remittance Rate;
(c) all Liquidation Proceeds;
(d) all proceeds received by Seller under any title, hazard,
private mortgage guaranty or other insurance policy other than
proceeds to be held in the Escrow Account and applied to the
restoration or repair of the Mortgaged Property or released to
the Mortgagor in accordance with Customary Servicing
Procedures;
(e) all awards or settlements in respect of condemnation
proceedings or eminent domain affecting any Mortgaged Property
which are not released to the Mortgagor in accordance with
Customary Servicing Procedures;
(f) any amount required to be deposited in the Custodial Account
pursuant to Sections 11.01, 11.03 and 12.02;
(g) any amounts payable in connection with the repurchase of any
Mortgage Loan pursuant to Section 6.03, and all amounts
required to be deposited by Seller in connection with
shortfalls in principal amount of Qualified Substitute
Mortgage Loans pursuant to Section 6.03;
(h) all Condemnation Proceeds affecting any Mortgaged Property
which are not released to the Mortgagor in accordance with
Customary Servicing Procedures, the loan documents or
applicable law; and
(i) with respect to each full or partial Principal Prepayment any
amounts to the extent that collections of interest are less
than one (1) full month's interest at the applicable Mortgage
Loan Remittance Rate ("Prepayment Interest Shortfalls"), such
Prepayment Interest Shortfalls will be deposited by Seller to
the extent of its aggregate Servicing Fee received with
respect to the related Due Period.
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 need not be deposited by Seller in the Custodial Account. Any
interest or earnings on funds deposited in the Custodial Account by the
depository institution shall accrue to the benefit of Seller and Seller shall be
entitled to retain and withdraw such interest from the Custodial Account.
SECTION 10.10 WITHDRAWALS FROM THE CUSTODIAL ACCOUNT.
Seller shall, from time to time, withdraw funds from the Custodial
Account for the following purposes:
(a) to make payments to Purchaser in the amounts and in the manner
provided for in Section 11.01;
(b) to temporarily reimburse itself for advances of Seller funds
made pursuant to Section 11.03, Seller's right to permanently
reimburse itself pursuant to this subclause (b) being limited
to amounts received on the related Mortgage Loan which
represent payments of principal and/or interest respecting
which any such advance was made;
(c) to reimburse itself FIRST for all unreimbursed Servicing
Advances, SECOND for unreimbursed advances of Seller funds
made pursuant to Section 11.03, and THIRD for any unpaid
Servicing Fees, Seller's right to reimburse itself pursuant to
this subclause (c) with respect to any Mortgage Loan being
limited to related Liquidation Proceeds, Condemnation
Proceeds, amounts representing proceeds of insurance policies
covering the related Mortgaged Property and such other amounts
as may be collected by Seller from the Mortgagor or otherwise
relating to the Mortgage Loan, it being understood that, in
the case of any such reimbursement, Seller's right thereto
shall be prior to the rights of Purchaser unless Seller is
required to repurchase a Mortgage Loan pursuant to Section
6.03, in which case Seller's right to such reimbursement shall
be subsequent to the payment to Purchaser of the repurchase
price pursuant to Section 6.03 and all other amounts required
to be paid to Purchaser with respect to such Mortgage Loan;
(d) to reimburse itself for all unreimbursed Servicing Advances,
advances of Seller funds made pursuant to Section 11.03 and
unpaid Servicing Fees to the extent that such amounts are
nonrecoverable by Seller pursuant to subclause (c) above,
provided that the Mortgage Loan for which such advances were
made is not required to be repurchased by Seller pursuant to
Section 6.03, and to reimburse itself for such amounts to the
extent that such amounts are not recovered from the
disposition of REO Property pursuant to Section 10.17 hereof;
(e) to reimburse itself for subsequent trailing bills related to a
previously disposed of REO Property in which distribution of
the net cash proceeds has occurred;
(f) to reimburse itself for expenses incurred by and reimbursable
to it pursuant to Section 13.01;
(g) to pay to itself any interest earned on funds deposited in the
Custodial Account, such withdrawal to be made monthly not
later than the Remittance Date;
(h) to withdraw any amounts inadvertently deposited in the
Custodial Account;
(i) to clear and terminate the Custodial Account upon the
termination of this Agreement; and
(j) to withdraw Service Fees to the extent deposited therein.
On each Remittance Date, Seller shall withdraw all funds from the
Custodial Account except for those amounts which, pursuant to Section 11.01(c)
and (d), Seller is not obligated to remit on such Remittance Date. Seller may
use such withdrawn funds only for the purposes described in this Section 10.10.
SECTION 10.11 ESTABLISHMENT OF ESCROW ACCOUNT; DEPOSITS IN ESCROW
ACCOUNT.
Seller shall segregate and hold or cause any Subservicer 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
(collectively, the "Escrow Account"). The Escrow Account shall be an Eligible
Account. In any case, the Escrow Account shall be insured by the FDIC in a
manner which shall provide maximum available insurance thereunder and which may
be drawn on by Seller. The creation of any Escrow Account shall be evidenced by
a letter agreement in the form shown in Exhibit J. The original of such letter
agreement shall be furnished to the Purchaser within five (5) Business Days
after the Closing Date, and upon request to any subsequent purchaser.
Seller or the Subservicer shall deposit in the Escrow Account on a
daily basis, and retain therein: (a) all Escrow Payments collected on account of
the Mortgage Loans, for the purpose of effecting timely payment of any such
items as required under the terms of this Agreement, and (b) all amounts
representing proceeds of any hazard insurance policy which are to be applied to
the restoration or repair of any Mortgaged Property. Seller shall make
withdrawals therefrom only in accordance with Section 10.12 hereof. As part of
its servicing duties, Seller or the Subservicer shall pay to the Mortgagors
interest on funds in the Escrow Account, to the extent required by law.
SECTION 10.12 WITHDRAWALS FROM ESCROW ACCOUNT.
Withdrawals from the Escrow Account shall be made by Seller or the
Subservicer only (a) to effect timely payments of ground rents, taxes,
assessments, water rates, mortgage insurance premiums, fire and hazard insurance
premiums or other items constituting Escrow Payments for the related Mortgage,
(b) to reimburse Seller for any Servicing Advance made by Seller pursuant to
Section 10.13 hereof 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, (c) to refund to any Mortgagor any
funds found to be in excess of the amounts required under the terms of the
related Mortgage Loan, (d) for transfer to the Custodial Account upon default of
a Mortgagor or in accordance with the terms of the related Mortgage Loan and if
permitted by applicable law, (e) for application to restore or repair of the
Mortgaged Property, (f) to pay to the Mortgagor, to the extent required by law,
any interest paid on the funds deposited in the Escrow Account, (g) to pay to
itself any interest earned on funds deposited in the Escrow Account (and not
required to be paid to the Mortgagor), such withdrawal to be made monthly not
later than the Remittance Date or (h) to clear and terminate the Escrow Account
upon the termination of this Agreement.
SECTION 10.13 PAYMENT OF TAXES, INSURANCE AND OTHER CHARGES.
With respect to each Mortgage Loan, Seller or the Subservicer shall
maintain accurate records reflecting the status of ground rents, taxes,
assessments, water rates and other charges which are or may become a lien upon
the Mortgaged Property and the status of private mortgage guaranty 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 Seller in amounts sufficient for such
purposes, as allowed under the terms of the Mortgage or applicable law. To the
extent that a Mortgage does not provide for Escrow Payments, Seller shall
determine that any such payments are made by the Mortgagor at the time they
first become due. Seller assumes full responsibility for the timely payment of
all such bills and shall effect timely payments of all such bills irrespective
of each Mortgagor's faithful performance in the payment of same or the making of
the Escrow Payments and shall make advances from its own funds to effect such
payments.
The Seller will maintain in full force and effect 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 with the approval of Purchaser, or as required by applicable law
or regulation. The Seller will not cancel or refuse to renew any primary
mortgage insurance policy in effect on the Closing Date that is required to be
kept in force under this Agreement unless a replacement primary mortgage
insurance policy for such canceled or nonrenewed policy is obtained from and
maintained with a Qualified Insurer. The Seller shall not take any action which
would result in non-coverage under any applicable primary mortgage insurance
policy of any loss which, but for the actions of the Seller would have been
covered thereunder. In connection with any assumption or substitution agreement
entered into or to be entered into pursuant to Section 12.01, the Seller shall
promptly notify the insurer under the related primary mortgage insurance policy,
if any, of such assumption or substitution of liability in accordance with the
terms of such policy and shall take all actions which may be required by such
insurer as a condition to the continuation of coverage under the primary
mortgage insurance policy. If such primary mortgage insurance policy is
terminated as a result of such assumption or substitution of liability, the
Seller shall obtain a replacement primary mortgage insurance policy as provided
above.
In connection with its activities as servicer, the Seller agrees to
prepare and present, on behalf of itself 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 and, in this
regard, to take such action as shall be necessary to permit recovery under any
primary mortgage insurance policy respecting a defaulted Mortgage Loan. Pursuant
to Section 10.09, any amounts collected by the Seller under any primary mortgage
insurance policy shall be deposited in the Custodial Account, subject to
withdrawal pursuant to Section 10.10.
SECTION 10.14 TRANSFER OF ACCOUNTS.
Seller may transfer the Custodial Account or the Escrow Account to a
different depository institution; provided such new account at such depositary
institution is an Eligible Account. Such transfer to a non-Citigroup affiliate
shall be made only upon obtaining the prior written consent of the Purchaser,
which consent will not be unreasonably withheld.
SECTION 10.15 MAINTENANCE OF HAZARD INSURANCE.
Seller shall cause to be maintained for each Mortgage Loan fire and
hazard insurance with extended coverage customary in the area where the
Mortgaged Property is located, in an amount which is at least equal to the
lesser of (a) the full insurable value of the Mortgaged Property or (b) the
greater of (i) the outstanding principal balance owing on the Mortgage Loan and
(ii) an amount such that the proceeds of such insurance shall be sufficient to
avoid the application to the Mortgagor or loss payee of any coinsurance clause
under the policy. If the Mortgaged Property is in an area identified in the
Federal Register by the Federal Emergency Management Agency as having special
flood hazards (and such flood insurance has been made available) Seller will
cause to be maintained a flood insurance policy meeting the requirements of the
current guidelines of the Federal Insurance Administration with a generally
acceptable insurance carrier, in an amount representing coverage not less than
the least of (a) the outstanding principal balance of the Mortgage Loan, (b) the
full insurable value of the Mortgaged Property, or (c) the maximum amount of
insurance available under the Flood Disaster Protection Act of 1973, each as
amended. Seller shall also maintain on property acquired upon foreclosure, or by
deed in lieu of foreclosure, of any Mortgage Loan, fire and hazard insurance
with extended coverage in an amount which is at least equal to the maximum
insurable value of the improvements which are a part of such property, liability
insurance and, to the extent required and available under the Flood Disaster
Protection Act of 1973, each as amended, flood insurance in an amount required
above. Any amounts collected by Seller under any such policies (other than
amounts to be deposited in the Escrow Account and applied to the restoration or
repair of the Mortgaged Property or property acquired in liquidation of the
Mortgage Loan, or to be released to the Mortgagor in accordance with Customary
Servicing Procedures) shall be deposited in the Custodial Account, subject to
withdrawal pursuant to Section 10.10. It is understood and agreed that no
earthquake or other additional insurance need be required by Seller of any
Mortgagor or maintained on property acquired in respect of a Mortgage Loan,
other than pursuant to such applicable laws and regulations as shall at any time
be in force and as shall require such additional insurance. All policies
required hereunder shall be endorsed with standard mortgagee clauses with loss
payable to Seller and its successors and/or assigns, and shall provide for at
least thirty (30) days prior written notice of any cancellation, reduction in
amount or material change in coverage to Seller. Seller shall not interfere with
the Mortgagor's freedom of choice in selecting either his insurance carrier or
agent.
SECTION 10.16 FIDELITY BOND; ERRORS AND OMISSIONS INSURANCE.
Seller shall maintain, at its own expense, a blanket fidelity bond and
an errors and omissions insurance policy, with broad coverage on all officers,
employees or other persons acting in any capacity requiring such persons to
handle funds, money, documents or papers relating to the Mortgage Loans ("Seller
Employees"). Any such fidelity bond and errors and omissions insurance shall
protect and insure Seller against losses, including forgery, theft,
embezzlement, fraud, errors and omissions, failure to maintain any insurance
policies required pursuant to this Agreement, and negligent acts of such Seller
Employees. Such fidelity bond shall also protect and insure Seller against
losses in connection with the release or satisfaction of a Mortgage Loan without
having obtained payment in full of the indebtedness secured thereby. No
provision of this Section 10.16 requiring such fidelity bond and errors and
omissions insurance shall diminish or relieve Seller 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 ▇▇▇▇▇▇ ▇▇▇ in the ▇▇▇▇▇▇ Mae Guides. Upon request by the Purchaser,
the Seller shall 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 shall obtain a statement from the surety and the insurer
that such Fidelity Bond or insurance policy shall in no event be terminated or
materially modified without thirty (30) days' prior written notice to the
Purchaser. The Seller shall notify the Purchaser within five (5) business days
of receipt of notice that such Fidelity Bond or insurance policy will be, or has
been, materially modified or terminated. Upon request by Purchaser, Seller shall
provide Purchaser with an insurance certificate certifying coverage under this
Section 10.16, and will provide an update to such certificate upon request, or
upon renewal or material modification of coverage.
SECTION 10.17 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 Purchaser, or in the event Purchaser is not
authorized or permitted to hold title to real property in the state where the
REO Property is located, or would be adversely affected under the "doing
business" or tax laws of such state by so holding title, the deed or certificate
of sale shall be taken in the name of such Person or Persons as shall be
consistent with an Opinion of Counsel obtained by Seller, at expense of
Purchaser, from an attorney duly licensed to practice law in the state where the
REO Property is located. The Person or Persons holding such title other than
Purchaser shall acknowledge in writing that such title is being held as nominee
for Purchaser.
Seller shall manage, conserve, protect and operate each REO Property
for Purchaser solely for the purpose of its prompt disposition and sale. Seller
shall either itself or through an agent selected by Seller, manage, conserve,
protect and operate the REO Property in the same manner that it manages,
conserves, protects and operates other foreclosed property for its own account,
and in the same manner that similar property in the same locality as the REO
Property is managed. Seller shall attempt to sell the same (and may temporarily
rent the same) on such terms and conditions as Seller deems to be in the best
interest of Purchaser.
With respect to all REO Property, Seller shall hold all funds collected
and received in connection with the operation of the REO Property separate and
apart from its own funds or general assets and shall establish and maintain with
respect to all REO Property an REO Account or Accounts, in the form of a
non-interest bearing demand account, titled "[Seller] in trust for
Purchaser-Fixed Rate Mortgage Loans as tenants in common" unless an Opinion of
Counsel is obtained by Seller to the effect that the classification as a grantor
trust for federal income tax purposes of the arrangement under which the
Mortgage Loans and the REO Property are held will not be adversely affected by
holding such funds in another manner. Such REO Account shall be established with
Seller or, with the prior consent of Purchaser, with a commercial bank, a mutual
savings bank or a savings and loan association. The creation of the REO Account
shall be evidenced by (a) a certification in the form shown in Exhibit D hereto,
in the case of an account established with Citibank, or (b) a letter agreement
in the form shown in Exhibit E hereto, in the case of an account held by a
depository other than Citibank. In either case, an original of such
certification or letter agreement shall be furnished to Purchaser upon request.
Seller shall cause to be deposited on a daily basis in the REO Account
all revenues received with respect to the conservation and disposition of the
related REO Property and shall withdraw therefrom funds necessary for the proper
operation, management and maintenance of the REO Property, including the cost of
maintaining any hazard insurance pursuant to Section 10.15 hereof and the fees
of any managing agent acting on behalf of Seller. Seller shall not be entitled
to retain interest paid or other earnings, if any, on funds deposited in such
REO Account. Seller shall make distributions as required on each Remittance Date
to Purchaser of the net cash flow from the REO Property (which shall equal the
revenues from such REO Property net of the expenses described above and of any
reserves reasonably required from time to time to be maintained to satisfy
anticipated liabilities for such expenses).
Seller shall use its best efforts to dispose of the REO Property as
soon as possible and shall sell such REO Property as soon as practicable but in
any event within three (3) years after title has been taken to such REO
Property. If a purchase money mortgage is taken in accordance with such sale,
such purchase money mortgage shall not be held pursuant to this Agreement.
The disposition of REO Property shall be carried out by Seller and
shall be made at such price, and upon such terms and conditions, as Seller deems
to be in the best interests of Purchaser. Upon the request of Purchaser, and at
Purchaser's expense, Seller shall cause an appraisal of the REO Property to be
performed for Purchaser. The proceeds of sale of the REO Property shall be
promptly deposited in the REO Account and, as soon as practical thereafter, the
expenses of such sale shall be paid, Seller shall reimburse itself for any and
all related unreimbursed Servicing Advances, unpaid Servicing Fees, any and all
unreimbursed advances made and any appraisal performed and the net cash proceeds
of such sale remaining in the REO Account shall be distributed to Purchaser.
Upon request, with respect to any REO Property, Seller shall furnish to
Purchaser a statement covering Seller's efforts in connection with the sale of
that REO Property and any rental of the REO Property incidental to the sale
thereof for the previous month (together with an operating statement). That
statement shall be accompanied by such other information as Purchaser shall
reasonably request.
ARTICLE XI
PAYMENTS TO PURCHASER
SECTION 11.01 DISTRIBUTIONS.
On each Remittance Date, Seller shall remit by wire transfer of
immediately available funds to the account designated in writing by Purchaser of
record on the preceding Record Date (a) all amounts deposited in the Custodial
Account as of the close of business on the preceding Determination Date (net of
all amounts withdrawable therefrom pursuant to Section 10.10), plus (b) all
amounts, if any, which Seller is obligated to distribute pursuant to Section
11.03, minus (c) any amounts attributable to Monthly Payments collected but due
on a Due Date or Dates subsequent to the related Due Period, minus (d) any
amounts attributable to Principal Prepayments received after the last day of the
calendar month preceding the month of the Remittance Date, which amounts shall
be remitted on the following Remittance Date, together with any additional
interest required to be deposited in the Custodial Account in connection with
such Principal Prepayments in accordance with Section 10.09(h), minus (e) any
amounts attributable to reimbursement for unreimbursed Servicing Advances,
advance of Seller funds, and unpaid Servicing Fees pursuant to Section 10.10(d),
and minus (f) any amounts attributable to reimbursement for subsequent trailing
bills related to a previously disposed of REO Property in which distribution of
net cash proceeds has occurred pursuant to Section 10.10(e).
With respect to any remittance received by Purchaser after the Business
Day on which such payment was due, Seller shall pay to Purchaser interest on any
such late payment at arate equal to the overnight federal funds effective rate,
but in no event greater than the maximum amount permitted by applicable law.
Such interest shall be paid by Seller to Purchaser on the date such late payment
is made and shall cover the period commencing with the Business Day on which
such payment was due and ending with the Business Day on which such payment is
made, both inclusive. The payment by Seller of any such interest shall not be
deemed an extension of time for payment or a waiver of any Event of Default by
Seller.
To the extent that the amount of a remittance or distribution to
Purchaser made hereunder is in greater than the amount thereof properly to be
remitted pursuant to the terms of this Agreement, Seller will give prompt
written notice thereof to Purchaser after Seller's discovery thereof, including
the amount of such remittance or distribution that was paid in error. If, by the
Remittance Date immediately following such notice, Purchaser has not reimbursed
the Custodial Account or Seller, as applicable, for the amount of such erroneous
remittance or distribution (without any liability on the part of Purchaser for
interest thereon), Seller shall be entitled to withhold such amount from the
remittance to be made on such Remittance Date.
SECTION 11.02 STATEMENTS TO PURCHASER.
Not later than seven (7) Business Days after each month end, Seller
shall furnish to the Purchaser an individual loan accounting report, as of the
last Business Day of each month, in the Seller's assigned loan number order to
document Mortgage Loan payment activity on an individual Mortgage Loan basis.
The corresponding individual loan accounting report shall be on a disk or tape
or other computer-readable format in such format as may be mutually agreed upon
by both Purchaser and Seller, and shall contain the information set forth in
Exhibit L hereto.
In addition, within a reasonable period of time after the end of each
calendar year, Seller will furnish a report to each Person that was a Purchaser
at any time during such calendar year. Such report shall state the aggregate of
amounts (a) remitted on each Remittance Date which is allocable to principal and
allocable to interest and (b) of servicing compensation received by Seller as
servicer on each Remittance Date for such calendar year or, in the event such
Person was a Purchaser of record during only a portion of such calendar year,
for the applicable portion of such year. Such obligation of Seller shall be
deemed to have been satisfied to the extent that substantially comparable
information shall be provided by Seller pursuant to any requirements of the
Internal Revenue Code of 1986 as from time to time in force.
Seller shall prepare and file any and all tax returns, information
statements or other filings required to be delivered to any governmental taxing
authority or to Purchaser pursuant to any applicable law with respect to the
Mortgage Loans and the transactions contemplated hereby. In addition, Seller
shall provide Purchaser with such information concerning the Mortgage Loans as
is necessary for such Purchaser to prepare its federal income tax return as
Purchaser may reasonably request from time to time.
SECTION 11.03 ADVANCES BY SELLER.
On the Business Day immediately preceding each Remittance Date, Seller
shall deposit in the Custodial Account an amount equal to all Monthly Payments
(with interest adjusted to the Mortgage Loan Remittance Rate) which were due on
the Mortgage Loans during the applicable Due Period and which were delinquent at
the close of business on the immediately preceding Determination Date. This
deposit may be offset by any funds held for a future distribution not due on the
current Remittance Date. Seller's obligation to make such advances as to any
Mortgage Loan will continue through the last Monthly Payment due prior to the
payment in full of the Mortgage Loan, or through the last Remittance Date prior
to the Remittance Date for the distribution of all other payments or recoveries
(including proceeds under any title, hazard or other insurance policy, or
condemnation awards) with respect to the Mortgage Loan, provided, however, that
such obligation shall cease if (a) there has been a final disposition of the
Mortgage Loan or (b) if Seller, in its good faith judgment, determines that such
advances would not be recoverable pursuant to Section 10.10(d). The
determination by Seller that an advance, if made, would be nonrecoverable, shall
be evidenced by an Officer's Certificate of Seller, delivered to Purchaser,
which details the reasons for such determination and contains an appraisal of
the value of the Mortgaged Property.
SECTION 11.04 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 Seller
shall submit to the Purchaser a liquidation report with respect to such
Mortgaged Property in a form mutually acceptable to Seller and Purchaser. The
Seller shall also provide reports on the status of REO Property containing such
information as Purchaser may reasonably require.
ARTICLE XII
GENERAL SERVICING PROCEDURE
SECTION 12.01 ASSUMPTION AGREEMENTS.
Seller will use its best efforts to enforce any "due-on-sale" provision
contained in any Mortgage or Mortgage Note to the extent permitted by law,
provided that Seller shall permit such assumption if so required in accordance
with the terms of the Mortgage or the Mortgage Note. When the Mortgaged Property
has been conveyed by the Mortgagor, Seller will, to the extent it has knowledge
of such conveyance, exercise its rights to accelerate the maturity of such
Mortgage Loan under the "due-on-sale" clause applicable thereto, provided,
however, Seller will not exercise such rights if prohibited by law from doing so
or if the exercise of such rights would impair or threaten to impair any
recovery under the related private mortgage guaranty policy, if any. If Seller
reasonably believes it is unable under applicable law to enforce such
"due-on-sale" clause, Seller may enter into an assumption and modification
agreement with the person to whom such property has been conveyed, pursuant to
which such person becomes liable under the Mortgage Note and, to the extent
permitted by applicable law, the Mortgagor remains liable thereon. In connection
with any such assumption, the outstanding principal amount, the Monthly Payment
and the Mortgage Interest Rate of the related Mortgage Note shall not be
changed, and the term of the Mortgage Loan will not be increased or decreased.
If an assumption is allowed pursuant to this Section 12.01, Seller with the
prior consent of the private mortgage guaranty insurer, if any, is authorized to
enter into a substitution of liability agreement with Purchaser of the Mortgaged
Property pursuant to which the original Mortgagor is released from liability and
Purchaser of the Mortgaged Property is substituted as Mortgagor and becomes
liable under the Mortgage Note. Any fee collected by Seller for entering into
any such assumption agreement will be retained by Seller as additional servicing
compensation.
In connection with any such assumption or substitution of liability,
the Seller shall follow the underwriting practices and procedures of the Seller.
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 Seller 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 Seller shall 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 Seller for entering into an assumption or
substitution of liability agreement shall belong to the Seller.
Notwithstanding the foregoing paragraphs of this Section or any other
provision of this Agreement, the Seller shall not be deemed to be in default,
breach or any other violation of its obligations hereunder by reason of any
assumption of a Mortgage Loan by operation of law or any assumption which the
Seller may be restricted by law from preventing, for any reason whatsoever. For
purposes of this Section 12.01, 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 12.02 SATISFACTION OF MORTGAGES AND RELEASE OF MORTGAGE FILES.
Upon the payment in full of any Mortgage Loan, or the receipt by
Seller of a notification that payment in full will be escrowed in a manner
customary for such purposes, Seller or the Subservicer will obtain, in
accordance with Section 5.03 hereof, the portion of the Mortgage File that is in
the possession of the Purchaser, prepare and process any required satisfaction
or release of the Mortgage and notify Purchaser as provided in Section 11.02.
In the event Seller grants a satisfaction or release of a Mortgage
without having obtained payment in full of the indebtedness secured by the
Mortgage or should Seller otherwise prejudice any right Purchaser may have under
the mortgage instruments, Seller, upon written demand of Purchaser, shall remit
within two (2) Business Days to Purchaser the Stated Principal Balance of the
related Mortgage Loan by deposit thereof in the Custodial Account. Seller shall
maintain the Fidelity Bond and errors and omissions insurance as provided for in
Section 10.16 insuring Seller against any loss it may sustain with respect to
any Mortgage Loan not satisfied in accordance with the procedures set forth
herein.
SECTION 12.03 SERVICING COMPENSATION.
As compensation for its services hereunder, Seller shall be entitled to
retain from interest payments on the Mortgage Loans the Servicing Fee.
Additional servicing compensation in the form of assumption fees and late
payment charges shall be retained by Seller or any related Subservicer to the
extent not required to be deposited in the Custodial Account. Seller shall be
required to pay all expenses incurred by it in connection with its servicing
activities hereunder and shall not be entitled to reimbursement therefor except
as specifically provided for herein.
SECTION 12.04 ANNUAL STATEMENT AS TO COMPLIANCE.
The Seller will deliver to the Purchaser not later than 90 days
following the end of each fiscal year of the Seller beginning in March 2004, an
Officers' Certificate stating, as to each signatory thereof, that (i) a review
of the activities of the Seller during the preceding calendar year and of
performance under this Agreement has been made under such officers' supervision,
and (ii) to the best of such officers' knowledge, based on such review, the
Seller has fulfilled all of its obligations under this Agreement throughout such
year, or, if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officers and the nature and status of
cure provisions thereof. Copies of such statement shall be provided by the
Seller to the Purchaser upon request.
SECTION 12.05 ANNUAL INDEPENDENT PUBLIC ACCOUNTANTS' SERVICING REPORT.
Within ninety (90) days of Seller's fiscal year end beginning in March
2004, the Seller at its expense shall cause a firm of independent public
accountants which is a member of the American Institute of Certified Public
Accountants to furnish a statement to the Purchaser to the effect that such firm
has examined certain documents and records relating to the Seller's servicing of
mortgage loans of the same type as the Mortgage Loans pursuant to 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 Seller's servicing has been conducted in
compliance with the agreements examined pursuant to this Section 12.05, 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. Copies of such
statement shall be provided by the Seller to the Purchaser. In addition, on an
annual basis, Seller shall provided Purchaser with copies of its audited
financial statements.
SECTION 12.06 PURCHASER'S RIGHT TO EXAMINE SELLER RECORDS.
Purchaser shall have the right, at all reasonable times upon reasonable
notice and as often as reasonably required, to examine and audit any and all of
the books, records or other information of Seller whether held by Seller or by
another on behalf of Seller, which are relevant to the performance or observance
by Seller of the terms, covenants or conditions of this Agreement.
SECTION 12.07 SELLER SHALL PROVIDE ACCESS/INFORMATION AS REASONABLY
REQUIRED.
Seller shall provide to Purchaser access to any documentation regarding
the Mortgage Loans which may be required by applicable regulations (the
"Regulations"). Such access shall be afforded without charge, but only upon
reasonable request, during normal business hours and at the offices of Seller.
In addition, Seller shall furnish upon request by Purchaser, during the
term of this Agreement, such periodic, special or other reports or information,
whether or not provided for herein, as shall be necessary, reasonable and
appropriate with respect to the purposes of this Agreement and the Regulations.
All such reports or information shall be provided by and in accordance with all
reasonable instructions and directions Purchaser may require. Seller agrees to
execute and deliver all such instruments and take all such action as Purchaser,
from time to time, may reasonably request in order to effectuate the purposes
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 Seller
for the most recently completed two (2) fiscal years for which such statements
are available.
ARTICLE XIII
SELLER
SECTION 13.01 INDEMNIFICATION; THIRD PARTY CLAIMS.
In addition to the indemnification provided in Section 6.03, Seller
shall indemnify and hold harmless Purchaser against any and all claims, losses,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments, and any other costs, fees and expenses that Purchaser may
sustain in any way related to the failure of Seller to perform its duties,
obligations, covenants and agreements and service the Mortgage Loans in strict
compliance with the terms of this Agreement. Seller shall immediately notify
Purchaser if a claim is made by a third party with respect to this Agreement or
the Mortgage Loans, and Seller shall assume (with the consent of Purchaser) the
defense of any such claim and pay all expenses in connection therewith,
including counsel fees, and promptly pay, discharge and satisfy any judgment or
decree which may be entered against Seller or Purchaser in respect of such
claim. Seller shall provide Purchaser with a written report of all expenses and
advances incurred by Seller pursuant to this Section 13.01 and Purchaser shall
promptly reimburse Seller for all amounts advanced by it pursuant to the
preceding sentence except when the claim in any way relates to Seller's failure
to service and administer the Mortgage Loans in strict compliance with the terms
of this Agreement or a breach of representation or warranty set forth in this
Agreement. Notwithstanding anything to the contrary in this Agreement, in the
event that Purchaser or its designee becomes record owner of any Mortgaged
Property, Seller shall not be deemed to have failed to perform its obligations
hereunder where it fails to act in response to any notice delivered to the
record holder of the Mortgaged Property if (i) statutory notice was not
delivered to Seller, (ii) Seller had no actual knowledge of the situation
surrounding such notice and (iii) Seller's inaction was due entirely to Seller's
lack of receipt of such notice. The provisions of this Section 13.01 shall
survive termination of this Agreement.
SECTION 13.02 MERGER OR CONSOLIDATION OF SELLER.
Seller will keep in full effect its existence, rights and franchises as
a corporation, and will obtain and preserve its qualification to do business as
a foreign corporation in each jurisdiction in which such qualification is or
shall be necessary to protect the validity and enforceability of this Agreement
or any of the Mortgage Loans and to perform its duties under this Agreement.
Any Person into which Seller may be merged or consolidated, or any
corporation resulting from any merger, conversion or consolidation to which
Seller shall be a party, or any Person succeeding to substantially all of the
business of Seller (whether or not related to loan servicing), shall be the
successor of Seller hereunder, without the execution or filing of any paper or
any further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided, however, that the successor or surviving
Person shall be an institution (i) the deposits of which are insured by the
FDIC, SAIF and/or BIF, and which is a HUD-approved mortgagee whose primary
business is in origination and servicing of first lien mortgage loans, and (ii)
who is a ▇▇▇▇▇▇ Mae or FHLMC approved seller/servicer in good standing.
SECTION 13.03 LIMITATION ON LIABILITY OF SELLER AND OTHERS.
Seller and any director, officer, employee or agent of Seller may rely
on any document of any kind which it in good faith reasonably believes to be
genuine and to have been adopted or signed by the proper authorities respecting
any matters arising hereunder; provided, however, that this provision shall not
protect the Seller or any such person against any breach of warranties or
representations made herein, or failure to perform its obligations in 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.
Subject to the terms of Section 13.01, Seller shall have no obligation to appear
with respect to, prosecute or defend any legal action which is not incidental to
Seller's duty to service the Mortgage Loans in accordance with this Agreement;
provided, however, that the Seller may, with the consent of the Purchaser,
undertake any such action which it may deem necessary or desirable in respect to
this Agreement and the rights and duties of the parties hereto. In such event,
the 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 Seller shall be entitled to be reimbursed
therefor from the Purchaser upon written demand.
SECTION 13.04 SELLER NOT TO RESIGN.
Seller shall not assign this Agreement nor resign from the obligations
and duties hereby imposed on it except by mutual consent of Seller and Purchaser
or upon the determination that Seller's duties hereunder are no longer
permissible under applicable law and such incapacity cannot be cured by Seller.
Notwithstanding the foregoing, Seller shall have the right to assign its rights
under this Agreement to Citigroup, Inc. or any subsidiary of Citigroup, Inc.
SECTION 13.05 NO TRANSFER OF SERVICING.
With respect to the retention of the Seller to service the Mortgage
Loans hereunder, the Seller acknowledges that the Purchaser has acted in
reliance upon the Seller's independent status, the adequacy of its servicing
facilities, plan, personnel, records and procedures, its integrity, reputation
and financial standing and the continuance thereof. Without in any way limiting
the generality of this Section, the Seller shall not either assign this
Agreement or the servicing hereunder or delegate its rights or duties hereunder
or any portion thereof, or sell or otherwise dispose of all or substantially all
of its property or assets, without the prior written approval of the Purchaser,
which consent shall be granted or withheld in the Purchaser's sole discretion.
Notwithstanding the foregoing, Purchaser acknowledges and agrees that Seller may
assign any compensation arising from servicing under this Agreement to an
affiliate of Seller.
Without in any way limiting the generality of this Section 13.05, in
the event that the Seller either shall assign this Agreement or the servicing
responsibilities hereunder 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 Seller (other than with respect to
accrued but unpaid Servicing Fees and Servicing Advances remaining unpaid) or
any third party.
In the event there is a termination of servicing pursuant to this
Agreement, Seller shall cause its affiliate to whom Seller transferred the
servicing compensation hereunder to transfer all the right, title and interest
in the servicing compensation to EMC Mortgage Corporation ("EMC") or its
designee, and Seller shall indemnify EMC for any and all losses for its failure
to assign such right, title and interest to the servicing compensation as
required herein.
ARTICLE XIV
DEFAULT
SECTION 14.01 EVENTS OF DEFAULT.
In case one or more of the following Events of Default by Seller shall
occur and be continuing, that is to say:
(a) any failure by Seller to remit to Purchaser any payment
required to be made under the terms of this Agreement which
continues unremedied for a period of one (1) Business Day
after the date upon which written notice of such failure,
requiring the same to be remedied, shall have been given to
Seller by Purchaser; or
(b) failure by Seller to duly observe or perform, in any material
respect, any other covenants, obligations or agreements of
Seller as set forth in this Agreement which failure continues
unremedied for a period of sixty (60) days after the date on
which written notice of such failure, requiring the same to be
remedied, shall have been given to Seller by Purchaser; or
(c) a decree or order of a court or agency or supervisory
authority having jurisdiction for the appointment of a
conservator or receiver or liquidator in any insolvency,
bankruptcy, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against
Seller and such decree or order shall have remained in force,
undischarged or unstayed for a period of sixty (60) days; or
(d) Seller shall consent to the appointment of a conservator or
receiver or liquidator in any insolvency, bankruptcy,
readjustment of debt, marshalling of assets and liabilities or
similar proceedings of or relating to Seller or relating to
all or substantially all of Seller's property; or
(e) Seller shall admit in writing its inability to pay its debts
as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an
assignment for the benefit of its creditors, or voluntarily
suspend payment of its obligations; or
(f) Seller attempts to assign this Agreement except in compliance
with the terms of this Agreement; or
(h) the Seller 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
Seller's ability to perform its obligations hereunder; or
(i) the Seller fails to meet the eligibility criteria set forth in
the last sentence of Section 13.02; or
(j) the Seller ceases to be approved by either ▇▇▇▇▇▇ ▇▇▇ or FHLMC
as a mortgage loan seller or servicer for more than thirty
days; or
(k) the Seller attempts, without the consent of the Purchaser, to
sell or otherwise dispose of all or substantially all of its
property or assets or to assign this Agreement or the
servicing responsibilities hereunder or to delegate its duties
hereunder or any portion thereof.
Then, and in each and every such case, so long as an Event of Default
shall not have been remedied, Purchaser, by notice in writing to Seller (except
in the case of an Event of Default under clauses (c), (d) or (e) above, in which
case, automatically and without notice), may, in addition to whatever rights
Purchaser may have at law or equity to damages, including injunctive relief and
specific performance, terminate all the rights and obligations of Seller under
this Agreement and in and to the Mortgage Loans and the proceeds thereof. On and
after the receipt by Seller of such written notice (or, in the case of an Event
of Default under clauses (c), (d) or (e) above, in which case, automatically and
without notice) all authority and power of Seller under this Agreement, whether
with respect to the Mortgage Loans or otherwise, shall pass to and be vested in
the successor appointed pursuant to Section 16.01. Upon written request from
Purchaser, Seller shall prepare, execute and deliver to a successor any and all
documents and other instruments, place in such successor's possession all
Mortgage Files and do or cause to be done all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, including, but
not limited to, the transfer and endorsement or assignment of the Mortgage Loans
and related documents to the successor at Seller's sole expense. Seller agrees
to cooperate with Purchaser and such successor in effecting the termination of
Seller's responsibilities and rights hereunder, including, without limitation,
the transfer to such successor for administration by it of all amounts which
shall at the time be credited by Seller to the Custodial Account or Escrow
Account or thereafter received with respect to the Mortgage Loans or any REO
Property.
SECTION 14.02 WAIVER OF DEFAULTS.
Purchaser may waive only by written notice any default by Seller in the
performance of its obligations hereunder and its consequences. Upon any such
waiver of a past default, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any subsequent or
other default or impair any right consequent thereto except to the extent
expressly so waived in writing.
ARTICLE XV
TERMINATION
SECTION 15.01 TERMINATION.
This Agreement shall terminate upon either: (a) the later of the
distribution to Purchaser of final payment or liquidation with respect to the
last Mortgage Loan (or advances of same by Seller), or the disposition of all
property acquired upon foreclosure or deed in lieu of foreclosure with respect
to the last Mortgage Loan and the remittance of all funds due hereunder; (b)
mutual consent of Seller and Purchaser in writing; or (c) the repurchase by
Seller of all Mortgage Loans (and all REO Property which has not been sold at a
price equal to 100% of the outstanding principal balance of each Mortgage Loan
on the day of repurchase) plus accrued interest thereon at a rate equal to the
Mortgage Loan Remittance Rate to the date of repurchase plus the appraised value
of any such REO Property, such appraisal to be conducted by an appraiser
mutually agreed upon by Seller and Purchaser.
ARTICLE XVI
MISCELLANEOUS PROVISIONS
SECTION 16.01 SUCCESSOR TO SELLER.
Prior to termination of Seller's responsibilities and duties under this
Agreement pursuant to Sections 13.04, 14.01 or 15.01(b), Purchaser shall (a)
succeed to and assume all of Seller's responsibilities, rights, duties and
obligations under this Agreement or (b) appoint a successor which shall succeed
to all rights and assume all of the responsibilities, duties and liabilities of
Seller under this Agreement prior to the termination of Seller's
responsibilities, duties and liabilities under this Agreement. In connection
with such appointment and assumption, Purchaser may make such arrangements for
the compensation of such successor out of payments on Mortgage Loans as it and
such successor shall agree; provided, however, that no such compensation shall
be in excess of that permitted Seller under this Agreement without the consent
of Purchaser. In the event that Seller's duties, responsibilities and
liabilities under this Agreement shall be terminated pursuant to the
aforementioned Sections, Seller shall discharge such duties and responsibilities
during the period from the date it acquires knowledge of such termination until
the effective date thereof with the same degree of diligence and prudence which
it is obligated to exercise under this Agreement, and shall take no action
whatsoever that might impair or prejudice the rights or financial condition of
its successor. The resignation or removal of Seller pursuant to the
aforementioned Sections shall not become effective until a successor shall be
appointed pursuant to this Section and shall in no event relieve Seller of the
representations and warranties made pursuant to Sections 6.01 and 6.02 and the
remedies available to Purchaser under Section 6.03, it being understood and
agreed that the provisions of such Sections 6.01, 6.02 and 6.03 shall be
applicable to Seller notwithstanding any such resignation or termination of
Seller, or the termination of this Agreement.
Any successor appointed as provided herein shall execute, acknowledge
and deliver to Seller and to Purchaser an instrument accepting such appointment,
whereupon such successor shall become fully vested with all the rights, powers,
duties, responsibilities, obligations and liabilities of Seller, with like
effect as if originally named as a party to this Agreement. Any termination or
resignation of Seller or this Agreement pursuant to Section 13.04, 14.01 or
15.01 shall not affect any claims that Purchaser may have against Seller arising
prior to any such termination or resignation.
Seller shall promptly deliver to the successor the funds in the
Custodial Account and Escrow Account and all Mortgage Files and related
documents and statements held by it hereunder and Seller shall account for all
funds and shall execute and deliver such instruments and do such other things as
may reasonably be required to more fully and definitively vest in the successor
all such rights, powers, duties, responsibilities, obligations and liabilities
of Seller.
Upon a successor's acceptance of appointment as such, Seller shall
notify by mail Purchaser of such appointment.
SECTION 16.02 AMENDMENT.
This Agreement may be amended from time to time by Seller and Purchaser
by written agreement signed by Seller and Purchaser; provided that if any of the
rights, duties or obligations of Seller as such would be affected by such
amendatory agreement, such agreement must also be consented to by Seller.
SECTION 16.03 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 or all 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 Seller
at Purchaser's expense upon direction of Purchaser, but only when such direction
is accompanied by an Opinion of Counsel to the effect that such recordation
materially and beneficially affects the interests of Purchaser or is necessary
for the administration or servicing of the Mortgage Loans.
SECTION 16.04 DURATION OF AGREEMENT.
This Agreement shall continue in existence and effect until terminated
as herein provided.
SECTION 16.05 GOVERNING LAW.
This Agreement shall be construed in accordance with the laws of the
State of New York, except to the extent preempted by Federal law, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
SECTION 16.06 NOTICES.
All demands, notices and communications hereunder shall be in writing
and shall be deemed to have been duly given if personally delivered at or mailed
by registered mail, postage prepaid, to (a) in the case of Seller, CitiMortgage,
Inc. ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ 74, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Capital Markets, with a copy to CitiMortgage, Inc., ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Investor Reporting Department,
or such other address as may hereafter be furnished to Purchaser in writing by
Seller and (b) in the case of Purchaser, EMC Mortgage Corporation, Mac ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇; with a copy to Bear ▇▇▇▇▇▇▇ Mortgage Capital Corporation, ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇, or such
other address as may hereafter be furnished to Seller in writing by Purchaser.
SECTION 16.07 SEVERABILITY OF PROVISIONS.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be held invalid for any reason whatsoever, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement. 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 inability.
SECTION 16.08 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
Seller shall be rendered as an independent contractor and not as agent for
Purchaser.
SECTION 16.09 EXECUTION; SUCCESSORS AND ASSIGNS.
This Agreement may be executed in one or more counterparts and by the
different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together, shall
constitute one and the same agreement. Subject to Section 13.04, this Agreement
shall inure to the benefit of and be binding upon Seller, Seller and Purchaser
and their respective successors and assigns.
SECTION 16.10 FURTHER ASSURANCES.
Seller understands that Purchaser may resell the Mortgage Loans as
whole loans or as part of a securitization in which a third party may act as
master servicer. In the event that as part of such sale or securitization,
additional information regarding the Mortgage Loans or modification of the
reporting requirements may be requested, Seller agrees to review such requests
by Purchaser's transferee or master servicer only if, in Seller's judgment,
fulfilling such requests would require no material modifications to Seller's
servicing processes or systems and any and all costs to provide such reports and
information shall be borne by Purchaser.
SECTION 16.11 COOPERATION OF SELLER WITH A RECONSTITUTION.
The Seller and the Purchaser agree that with respect to some or all of
the Mortgage Loans, on or after the Closing Date, on one or more dates (each a
"Reconstitution Date") at the Purchaser's sole option, upon fifteen (15) days
notice (provided Purchaser shall use its best efforts to provide thirty (30)
days notice) to Seller (which notice shall include a copy of the proposed
Reconstitution Agreement), 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 (subject to the limitation on the number of
Purchasers in Section 5.04 hereof):
(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 Seller agrees to execute in connection with any agreements among
the Purchaser, the Seller, and any servicer in connection with a Whole Loan
Transfer, a Reconstitution Agreement. It is understood that any such
Reconstitution Agreement will not contain any greater or different obligations
on the part of Seller than are contained in this Agreement.
With respect to each Whole Loan Transfer and each Pass-Through Transfer
entered into by the Purchaser, the Seller agrees (1) to cooperate fully with the
Purchaser and any prospective purchaser with respect to all reasonable requests
and due diligence procedures; (2) to execute, deliver and perform all
Reconstitution Agreements required by the Purchaser; (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 Seller shall provide to such Purchaser any and
all information (including servicing portfolio information) and appropriate
verification of information (including servicing portfolio information) which
may be reasonably available to the Seller, whether through letters of its
auditors or otherwise, as the Purchaser or any such other participant shall
request upon reasonable demand; . In connection with each Pass-Through Transfer,
the Seller agrees to provide reasonable and customary indemnification to the
Purchaser and its affilates for disclosure information provided by Purchaser
contained in any offering document relating to the Seller or its affilates, the
Mortgage Loans and the underwriting standards of the Mortgage Loans. The
Purchaser shall be responsible for the costs relating to the delivery of such
information.
The Seller further agrees that in the event any Mortgage Loan is
transferred to ▇▇▇▇▇▇ Mae, the Seller shall service such Mortgage Loans in
accordance with the ▇▇▇▇▇▇ ▇▇▇ Guide, and that there shall be no cap on
compensating interest payments with respect to such Mortgage Loans. The Seller
agrees that with respect to such Mortgage Loans, Seller shall also provide a
monthly data file tape with such information as required by ▇▇▇▇▇▇ Mae, as
applicable.
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 with respect thereto this Agreement shall remain in full force
and effect.
SECTION 16.12 REPORTING WITH RESPECT TO A RECONSTITUTION.
The Seller agrees that with respect to any Mortgage Loan sold or
transferred pursuant to a Reconstitution as described in Section 16.11 of this
Agreement (a "Reconstituted Mortgage Loan"), the Seller, at its expense, shall
provide the Purchaser with the information set forth in Exhibit K attached
hereto for each Reconstituted Mortgage Loan in such electronic format as may be
mutually agreed upon by both Purchaser and Seller.
SECTION 16.13 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, provided such information is identified as confidential
non-public information.
Notwithstanding other provisions of this Section 16.14 or any other
express or implied agreement, arrangement, or understanding to the contrary, the
Seller and Purchaser (the "Parties") agree that the Parties (and their
employees, representatives and other agents) may disclose to any and all
persons, without limitation of any kind from the commencement of discussions,
the purported or claimed U.S. federal income tax treatment of the purchase of
the Mortgage Loans and related transactions covered by this letter agreement
("tax treatment") and any fact that may be relevant to understanding the tax
treatment ("tax structure") and all materials of any kind (including opinions or
other tax analyses) that are provided to the Parties relating to such tax
treatment and tax structure, except where confidentiality is reasonably
necessary to comply with securities laws.
SECTION 16.14 NO SOLICITATION.
Seller hereby agrees that it will not, and its affiliates will not,
during the remaining term of any of the individual Mortgage Loans, take any
action or cause any action to be taken by any of its agents or affiliates, or
independent contractors working on its behalf, to target solicit the prepayment
of said Mortgage Loans by the mortgagors, without the prior written consent and
approval of the Purchaser; provided that, the foregoing shall not preclude the
Seller from engaging in solicitations in monthly statements or other regular
communications to borrowers in Seller's servicing portfolio which are not
directed toward the borrowers of the Mortgage Loans. Promotions undertaken by
the Seller or any affiliate of the Seller which are directed solely to the
general public at large, including, without limitation, mass mailing based on
commercially acquired mailing lists, newspapers, radio and television
advertisements shall not constitute solicitation.
IN WITNESS WHEREOF, Seller and 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.
CITIMORTGAGE, INC.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
EMC MORTGAGE CORPORATION
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
EXHIBIT A
CONTENTS OF MORTGAGE FILES
With respect to each Mortgage Loan, the Mortgage File shall include
each of the following items, all of which shall be available for inspection by
Purchaser:
1. Mortgage Loan Documents.
2. Copy of survey of the Mortgaged Property (if the title insurance policy
contains a survey exception).
3. Copy of each instrument necessary to complete identification of any
exception set forth in the exception schedule in the title policy,
e.g., map or plat, restrictions, easements, sewer agreements, home
association declarations, etc.
4. Mortgage Loan closing statement (Form HUD-1) and any other
truth-in-lending or real estate settlement procedure forms required by
law.
5. Residential loan application.
6. Verification of acceptable evidence of source and amount of
downpayment, if applicable.
7. Verification of employment and income except for Mortgage Loans
originated under a limited documentation program, all in accordance
with Seller's underwriting guidelines.
8. Credit report on the Mortgagor.
9. Residential appraisal report.
10. Photograph of the property.
11. Tax receipts, insurance premium receipts, ledger sheets, payment
records, insurance claim files and correspondence, correspondence,
current and historical computerized data files, underwriting standards
used for origination and all other papers and records developed or
originated by Seller or others, required to document the Mortgage Loan
or to service the Mortgage Loan.
12. Original of the related primary mortgage guaranty insurance policy, if
any, or a copy thereof.
13. Uniform underwriter and transmittal summary (▇▇▇▇▇▇ ▇▇▇ Form 1008) or
reasonable equivalent.
14. Business credit report, if applicable.
15. The original of any guarantee executed in connection with the Mortgage
Note.
16. Sales contract, if applicable.
17. If available, termite report, structural engineer's report, water
portability and septic certification.
18. Any original security agreement, chattel mortgage or equivalent
executed in connection with the Mortgage.
19. Name affidavit, if applicable.
EXHIBIT B
CUSTODIAL ACCOUNT CERTIFICATION
________ __, 2003
Citibank ____________ hereby certifies that it has established the
account described below as a Custodial Account pursuant to Section 11.09 of
Mortgage Loan Purchase and Servicing Agreement, dated as of ___________ 1, 2003,
Fixed Rate Mortgage Loans.
Title of Account: "CitiMortgage, Inc. in trust for Purchaser
and various Mortgagors - Fixed Rate
Mortgages Loans"
Account Number: __________________________
Address of office or
branch of Citibank
___________________________
at which Account is
maintained: __________________________
__________________________
Citibank ____________
By_________________________
EXHIBIT C
CUSTODIAL ACCOUNT LETTER AGREEMENT
__________ __, 2003
To: _____________________________________
_____________________________________
_____________________________________
(the "Depository")
As "Seller" under Mortgage Loan Purchase and Servicing Agreement, dated
as of ___________ 1, 2003, Fixed Rate Mortgage Loans (the "Agreement"), we
hereby authorize and request you to establish an account, as a Custodial Account
pursuant to Section 10.09 of the Agreement, to be designated as "[Seller], in
trust for Purchaser and various Mortgagors - Fixed Rate Mortgage Loans". All
deposits in the account shall be subject to withdrawal therefrom by order signed
by Seller. This letter is submitted to you in duplicate. Please execute and
return one original to us.
CitiMortgage, Inc.
By__________________________
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.
____________________________
(Name of Depository)
By__________________________
EXHIBIT D
REO ACCOUNT CERTIFICATION
(date)
Citibank ______________ hereby certifies that it has established the
non-interest bearing account described below as an REO Account pursuant to
Section 10.17 of Mortgage Loan Purchase and Servicing Agreement, dated as of
___________ 1, 2003, Fixed Rate Mortgage Loans.
Title of Account: "CitiMortgage, Inc. in trust for Purchaser -
Fixed Rate Mortgage Loans, as tenants in
common"
Account Number: __________________________
Address of office or
branch of Citibank
___________________________
at which Account is
maintained: __________________________
__________________________
Citibank ________________
By_______________________
EXHIBIT E
REO ACCOUNT LETTER AGREEMENT
(date)
To: _____________________________________
_____________________________________
_____________________________________
(the "Depository")
As "Seller" under Mortgage Loan Purchase and Servicing Agreement, dated
as of ___________ 1, 2003, Fixed Rate Mortgage Loans (the "Agreement"), we
hereby authorize and request you to establish a non-interest bearing account, as
an REO Account pursuant to Section 10.17 of the Agreement, to be designated as
"[Seller], in trust for Purchaser - Fixed Rate Mortgage Loans, as tenants in
common." All deposits in the account shall be subject to withdrawal therefrom by
order signed by Seller. This letter is submitted to you in duplicate. Please
execute and return one original to us.
CitiMortgage, Inc.
By__________________________
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.
___________________________
(name of Depository)
By_________________________
EXHIBIT F
MORTGAGE LOAN SCHEDULE
(1) the Seller'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 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 Cut-off
Date;
(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 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 Cut-off Date, after deduction of payments of
principal due on or before the 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 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.
With respect to the Mortgage Loans in the aggregate, the Mortgage Loan
Schedule shall set forth the following information, as of the 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;
and
(4) the weighted average maturity of the Mortgage Loans.
EXHIBIT G
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
This is an Assignment, Assumption and Recognition Agreement (the
"Agreement") made this ______ day of __________, 2003, among (the "Assignor"),
________________ (the "Assignee") and CitiMortgage, Inc. ("Citicorp").
In consideration of the mutual promises contained herein the parties
hereto agree that the mortgage loans (the "Mortgage Loans") listed on Attachment
1 annexed hereto (the "Mortgage Loan Schedule") now serviced by Citicorp for
Assignor and its successors and assigns pursuant to the Mortgage Loan Purchase
and Servicing Agreement dated as of _____________, 2003, between Assignor and
Citicorp (the "Purchase and Servicing Agreement") shall be subject to the terms
of this Agreement. Capitalized terms used herein but not defined shall have the
meanings ascribed to them in the Purchase and Servicing Agreement.
ASSIGNMENT AND ASSUMPTION
1. Assignor hereby grants, transfers and assigns to Assignee all of the
right, title and interest of Assignor in the Mortgage Loans and, to the extent
of the Mortgage Loans, all of its right, title and interest in, to and under the
Purchase and Servicing Agreement.
WARRANTIES
2. Assignor warrants and represents to, and covenants with, the
Assignee as of the date hereof that:
(a) Attached hereto as Attachment 2 is a true and accurate copy of the
Purchase and Servicing 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) Assignor is the lawful owner of the Mortgage Loans with full right
to transfer the Mortgage Loans and any and all of its interests, rights and
obligations under the Purchase and Servicing Agreement to the extent of the
Mortgage Loans free and clear from any and all claims and encumbrances
whatsoever and upon the transfer of the Mortgage Loans to Assignee as
contemplated herein, Assignee shall have good title to each and every Mortgage
Loan, as well as any and all of Assignee's interests, rights and obligations
under the Purchase and Servicing Agreement to the extent of the Mortgage Loans,
free and clear of all liens, claims and encumbrances;
(c) There are no offsets, counterclaims or other defenses available to
Citicorp with respect to the Mortgage Loans or the Purchase and Servicing
Agreement;
(d) Assignor has no knowledge of, and has not received notice of, any
waivers under, or any modification of, the Mortgage Loans;
(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 Mortgage Loans;
(f) Assignor has full corporate power and authority to execute, deliver
and perform its obligations under this Agreement, and to consummate the
transactions set forth herein. The consummation of the transactions contemplated
by this 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 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 Agreement has been duly
executed and delivered by Assignor and, upon the due authorization, execution
and delivery by Assignee, 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; and
(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 Agreement, or the consummation by it of the transactions
contemplated hereby.
3. Assignee warrants and represents to, and covenants with, Assignor
and Citicorp that as of the date hereof:
(a) The Assignee is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its incorporation, and
has all requisite corporate power and authority to acquire, own and purchase the
Mortgage Loans;
(b) Assignee has full corporate power and authority to execute, deliver
and perform its obligations under this Agreement, and to consummate the
transactions set forth herein. The consummation of the transactions contemplated
by this 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 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 Agreement has been duly
executed and delivered by Assignee and, upon the due authorization, execution
and delivery by Assignor, 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 Agreement, or the consummation by it of the transactions
contemplated hereby; and
(d) Assignee agrees to be bound, as "Purchaser" (as such term is
defined under the Purchase and Servicing Agreement), by all of the terms,
covenants and conditions of the Purchase and Servicing Agreement and the
Mortgage Loans, and from and after the date hereof, the Assignee assumes for the
benefit of each of Assignor and Citicorp all of Assignor's obligations as
Purchaser thereunder.
RECOGNITION OF ASSIGNEE
4. From and after the date hereof, Citicorp shall recognize Assignee as
owner of the Mortgage Loans and will service the Mortgage Loans in accordance
with the Purchase and Servicing Agreement, as if Assignee and Citicorp had
entered into a separate purchase and servicing agreement for the servicing of
the Mortgage Loans in the form of the Purchase and Servicing Agreement, the
terms of which are incorporated herein by reference. It is the intention of
Assignor, Citicorp and Assignee that this Agreement will constitute a separate
and distinct servicing agreement, and the entire agreement, between Citicorp and
Assignee to the extent of the Mortgage Loans and shall be binding upon and for
the benefit of the respective successors and assigns of the parties hereto.
5. The Mortgage Loans shall be serviced by Citicorp for Assignee in
accordance with all applicable state, federal and local laws as well as in
conformity with the provisions of the applicable Mortgages and Mortgage Notes,
and pursuant to the terms and conditions of this Agreement.
MISCELLANEOUS
6. All demands, notices and communications related to the Mortgage
Loans, the Purchase and Servicing Agreement and this 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 Seller,
CitiMortgage, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ 74,
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Capital Markets
with a copy to
CitiMortgage, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Investor Reporting Department
(b) In the case of Assignee
Attention:
-------------------------
(c) In the case of Assignor,
Attention:
-------------------------
7. This Agreement shall be construed in accordance with the laws of the
State of New York, except to the extent preempted by Federal law, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
8. No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced.
9. This Agreement shall inure to the benefit of the successors and
assigns of the parties hereto. Any entity into which the Assignor, Assignee or
Citicorp may be merged or consolidated shall, without the requirement for any
further writing, be deemed the Assignor, Assignee or Citicorp, respectively,
hereunder.
10. This Agreement shall survive the conveyance of the Mortgage Loans,
the assignment of the Purchase and Servicing Agreement to the extent of the
Mortgage Loans by the Assignor to the Assignee and the termination of the
Purchase and Servicing Agreement.
11. This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument.
MODIFICATION OF PURCHASE AGREEMENT
12. The Company and Assignor hereby amend the Purchase Agreement as
follows:
(a) Annual Statement as to Compliance.
The Company will use its best efforts to deliver to the Master Servicer
on or before March 15 of each year, beginning with March 15, 2004, an Officers'
Certificate stating that (i) a review of the activities of the Company during
the preceding calendar year and of performance under this Agreement has been
made under such officers' supervision, (ii) the Company has fully complied with
the provisions of this Agreement and (iii) to the best of such officers'
knowledge, based on such review, the Company has fulfilled all of its
obligations under this Agreement throughout such year, or, if there has been a
default in the fulfillment of any such obligation, specifying each such default
known to such officer and the nature and status thereof.
(b) Annual Certification.
The Company will use its best efforts to deliver to the Master
Servicer, on or before March 15 of each year beginning March 15, 2004 a
certification in the form attached hereto as Exhibit A with respect to the
servicing reports delivered by the Company pursuant to this Agreement, the
Company's compliance with the servicing obligations set forth in this Agreement
and any other information within the control of the Company. Such certification
shall be signed by the senior officer in charge of servicing of the Company. In
addition, the Company shall provide such other information with respect to the
Mortgage Loans and the servicing and administration thereof within the control
of the Company which shall be required to enable the Master Servicer, Trustee or
Depositor, as applicable, to comply with the reporting requirements of the
Securities and Exchange Act of 1934, as amended.
(c) Event of Default.
Failure by the Servicer to duly perform, within the required time
period, its obligations under Subsections (a) and (b) of this Section 12 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 Servicer by any party to this Servicing Agreement or by
any master servicer responsible for master servicing the Mortgage Loans pursuant
to a securitization of such Mortgage Loans.
(d) Third Party Beneficiary.
The Master Servicer shall be considered a third party beneficiary to
this Agreement entitled to all the rights and benefits accruing to the
MasterServicer herein as if it were a direct party to this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above written.
,
ASSIGNOR
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
,
ASSIGNEE
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
,
CITIMORTGAGE, INC.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
ATTACHMENT 1
MORTGAGE LOAN SCHEDULE
ATTACHMENT 2
MORTGAGE LOAN PURCHASE AND SERVICING AGREEMENT
EXHIBIT A
FORM OF COMPANY CERTIFICATION
A. FOR SO LONG AS THE MORTGAGE LOANS ARE BEING SERVICED BY SELLER 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"), AN OFFICER OF SELLER (HEREIN,
ALSO, "SERVICER"), ON OR BEFORE MARCH 31, 2004 AND, USING ITS BEST EFFORTS,
MARCH 15TH OF EACH YEAR THEREAFTER (OR IF NOT A BUSINESS DAY, THE IMMEDIATELY
PRECEDING BUSINESS DAY), SHALL EXECUTE AND DELIVER AN OFFICER'S CERTIFICATION IN
COMPLIANCE WITH THE ▇▇▇▇▇▇▇▇-▇▇▇▇▇ ACT TO THE RELATED MASTER SERVICER 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 Master
Servicer 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 Annual Statement
of Compliance, the Annual Independent Public Accountant's
Servicing Report, and all final servicing reports prepared by
Servicer and delivered to Master Servicer 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 Master Servicer by the Servicer under the
Servicing Agreement has been provided to Master Servicer;
(iv) I am responsible for reviewing the activities performed by the
Servicer under the Servicing Agreement and, to the best of my
knowledge and based upon the review required by the Servicing
Agreement, and except as disclosed in the Annual Statement of
Compliance and the Annual Independent Public Accountant's
Servicing Report submitted to the Master Servicer, the
Servicer has, as of the last day of the period covered by the
Annual Statement of Compliance fulfilled its obligations under
the Servicing Agreement; and
(v) I have disclosed to the Master Servicer 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 MASTER SERVICER
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 HEREUNDER.
Capitalized terms used but not defined herein have the meanings
ascribed to them in the AAR Agreement.
Date:______________
_____________________
[Signature] [Title]
EXHIBIT H
MORTGAGE LOAN DOCUMENTS
1. The original Mortgage Note endorsed, "Pay to the order of , without
recourse" and signed in the name of Seller by an authorized officer. In
the event that the Mortgage Loan was acquired by Seller in a merger,
the endorsement must be by "[Seller], successor by merger to [name of
predecessor]"; and in the event that the Mortgage Loan was acquired or
originated by Seller while doing business under another name, the
endorsement must be by "[Seller], formerly known as [previous name]".
2. The original Mortgage, or a copy of the Mortgage with evidence of
recording thereon certified by the appropriate recording office to be a
true copy of the recorded Mortgage, or, if the original Mortgage has
not yet been returned from the recording office, a copy of the original
Mortgage together with a certificate of either the closing attorney, an
officer of the title insurer which issued the related title insurance
policy or an officer of Seller, certifying that the copy is a true copy
of the original of the Mortgage which has been delivered by such
officer or attorney for recording in the appropriate recording office
of the jurisdiction in which the Mortgaged Property is located.
3. The original Assignment of Mortgage from Seller, prepared in blank,
which assignment shall be in form and substance acceptable for
recording. In the event that the Mortgage Loan was acquired by Seller
in a merger, the assignment must be by "[Seller], successor by merger
to [name of predecessor]"; and in the event that the Mortgage Loan was
acquired or originated by Seller while doing business under another
name, the assignment must be by "[Seller], formerly known as [previous
name]".
4. The original policy of title insurance, or, if the policy has not yet
been issued, a written commitment or interim binder issued by the title
insurance company, dated and certified as of the date the Mortgage Loan
was funded, with a statement by the title insurance company or closing
attorney on such binder or commitment that the priority of the lien of
the related Mortgage during the period between the date of the funding
of the related Mortgage Loan and the date of the related title policy
(which title policy shall be dated the date of recording of the related
Mortgage) is insured.
5. Originals, or certified true copies from the appropriate recording
office, of any intervening assignments of the Mortgage with evidence of
recording thereon, or, if the original intervening assignment has not
yet been returned from the recording office, a certified copy of such
assignment.
6. Originals or copies of all assumption and modification agreements, if
any.
7. Original power of attorney, if applicable.
8. The original or certified copy, of the Primary Mortgage Insurance
Policy, if required.
EXHIBIT I
SELLER'S WIRING INSTRUCTIONS
EXHIBIT J
ESCROW ACCOUNT LETTER AGREEMENT
________ __, ▇▇▇▇
▇▇▇▇▇▇▇▇ ____________ hereby certifies that it has established the
account described below as an Escrow Account pursuant to Section 11.09 of
Mortgage Loan Purchase and Servicing Agreement, dated as of ___________ 1, 2003,
Fixed Rate Mortgage Loans.
Title of Account: "CitiMortgage, Inc. in trust for Purchaser
and various Mortgagors - Fixed Rate
Mortgages Loans"
Account Number: __________________________
Address of office or
branch of Citibank
___________________________
at which Account is
maintained: __________________________
__________________________
Citibank ____________
By_________________________
EXHIBIT K
RECONSTITUTED MORTGAGE LOAN REPORTING
(a) Servicer Mortgage Loan Number
(b) FNMA Mortgage Loan Number (if applicable)
(c) Lender/Seller Mortgage Loan Number (if available)
(d) Scheduled Balance (scheduled end of month balance reporting to Master
Servicer/Trustee)
(e) Actual Balance (actual end of month balance received from Mortgagor)
(f) Gross Rate (current gross rate)
(g) Net Rate (current passthrough)
(h) Last Payment Date (LPI_DATE in Fannie's Laser Reporting)
(p) Fannie's Laser Reporting
(iii) Remit Prin (submitted principal amount)
(iv) Remit Int (submitted interest amount)
EXHIBIT L
EXHIBIT H-2
SERVICING AGREEMENT
EMC
THIS IS A SERVICING AGREEMENT, dated as of December 1, 2005, and is
executed between Structured Asset Mortgage Investments II Inc. (the "Owner") and
EMC Mortgage Corporation (the "Servicer").
W I T N E S S E T H :
WHEREAS, the Owner is the owner of the Mortgage Loans;
WHEREAS, the Owner and the Servicer wish to prescribe the permanent
management, servicing and control of the Mortgage Loans;
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth, and for other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the Owner and the Servicer 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: The procedures, including prudent
collection and loan administration procedures, and the standard of care (i)
employed by prudent mortgage servicers which service mortgage loans of the same
type as the Mortgage Loans in the jurisdictions in which the related Mortgage
Properties are located and (ii) in accordance with the ▇▇▇▇▇▇ ▇▇▇ Guide, subject
to any variances negotiated with ▇▇▇▇▇▇ Mae and subject to the express
provisions of this Agreement. Such standard of care shall not be lower than that
the Servicer customarily employs and exercises in servicing and administering
similar mortgage loans for its own account and shall be in full compliance with
all federal, state, and local laws, ordinances, rules and regulations.
ADJUSTMENT DATE: As to each ARM Loan, the date on which the Mortgage
Interest Rate is adjusted in accordance with the terms of the related Mortgage
Note.
AGREEMENT: This Servicing Agreement including all exhibits hereto,
amendments hereof and supplements hereto.
ARM LOANS: First lien, conventional, 1-4 family residential Mortgage
Loans with interest rates which adjust from time to time in accordance with the
related Index and are subject to Periodic Rate Caps and Lifetime Rate Caps and
which may permit conversion to fixed interest rates.
BUSINESS DAY: Any day other than (i) a Saturday or Sunday, or (ii) a
legal holiday in the States of Maryland, Minnesota, New York or the jurisdiction
in which the Servicer conducts its servicing activities, or (iii) a day on which
banks in the States of Maryland, Minnesota, New York or the jurisdiction in
which the Servicer conducts its servicing activities are authorized or obligated
by law or executive order to be closed.
CODE: The Internal Revenue Code of 1986, as it may be amended from time
to time, or any successor statute thereto, and applicable U.S. Department of the
Treasury regulations issued pursuant thereto.
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.
CUSTODIAL ACCOUNT: One or more demand account or accounts created and
maintained pursuant to Section 4.04 which shall be entitled "PRIME 2005-5
Custodial Account in trust for [Owner], Owner of Whole Loan Mortgages and
various Mortgagors" established at a Qualified Depository, each of which
accounts shall be held by such Qualified Depository in a fiduciary capacity,
separate and apart from its funds and general assets, and which account or
accounts shall in no event contain funds in excess of the FDIC insurance limits.
CUSTODIAN: ▇▇▇▇▇ Fargo Bank, N.A., or such other custodian as Owner
shall designate.
CUT-OFF DATE: The open of business on December 1, 2005.
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
Remittance Date.
DUE DATE: Each day on which payments of principal and interest are
required to be paid in accordance with the terms of the related Mortgage Note,
exclusive of any days of grace.
DUE PERIOD: With respect to each Remittance Date, the period commencing
on the second day of the month preceding the month of such Remittance Date and
ending on the first day of the month of the Remittance Date.
ESCROW ACCOUNT: The separate trust account or accounts created and
maintained pursuant to Section 4.06 which shall be entitled "PRIME 2005-5 Escrow
Account, in trust for [Owner], Owner of Whole Loan Mortgages and various
Mortgagors" and shall be established at a Qualified Depository, each of which
accounts shall in no event contain funds in excess of the FDIC insurance limits.
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.
▇▇▇▇▇▇ ▇▇▇: ▇▇▇▇▇▇ ▇▇▇, or any successor thereto.
▇▇▇▇▇▇ MAE GUIDE: The ▇▇▇▇▇▇ ▇▇▇ Selling Guide and the ▇▇▇▇▇▇ Mae
Servicing Guide and all amendments or additions 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, as amended from time to time.
▇▇▇▇▇▇▇ MAC: ▇▇▇▇▇▇▇ Mac, or any successor thereto.
▇▇▇▇▇▇▇ MAC GUIDE: The ▇▇▇▇▇▇▇ Mac Selling Guide and the ▇▇▇▇▇▇▇ Mac
Servicing Guide and all amendments or additions thereto.
FULL PRINCIPAL PREPAYMENT: A Principal Prepayment made by a Mortgagor
of the entire principal balance of a Mortgage Loan.
GAAP: Generally accepted accounting procedures, consistently applied.
HUD: The United States Department of Housing and Urban Development or
any successor.
INDEX: With respect to each ARM Loan, on the related Adjustment Date,
the index used to determine the Mortgage Interest Rate on each such ARM Loan.
INSURANCE PROCEEDS: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged Property.
LIFETIME RATE CAP: With respect to each ARM Loan, the maximum Mortgage
Interest Rate over the term of such Mortgage Loan, as specified in the related
Mortgage Note.
LIQUIDATION PROCEEDS: Amounts, other than Insurance Proceeds and
Condemnation Proceeds, received in connection with the liquidation of a
defaulted Mortgage Loan, whether through the sale or assignment of such Mortgage
Loan, trustee's sale, foreclosure sale or otherwise, other than amounts received
following the acquisition of an REO Property pursuant to Section 4.13.
MARGIN: With respect to each ARM 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.
MASTER SERVICER: ▇▇▇▇▇ Fargo Bank, N.A., its successors in interest and
assigns, or any successor thereto designated by the Owner.
MONTHLY ADVANCE: The aggregate of the advances made by the Servicer on
any Remittance Date pursuant to Section 5.03.
MONTHLY PAYMENT: With respect to each Mortgage Loan, the scheduled
monthly payment of principal and interest thereon which is payable by the
related 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 INTEREST RATE: The annual rate at which interest accrues on
any Mortgage Loan in accordance with the provisions of the related Mortgage
Note, and in the case of an ARM Loan, as adjusted from time to time on each
Adjustment Date for such Mortgage Loan to equal the Index for such Mortgage Loan
plus the Margin for such Mortgage Loan, and subject to the limitations on such
interest rate imposed by the Periodic Rate Cap and the Lifetime Rate Cap.
MORTGAGE LOAN: An individual Mortgage Loan described herein and as
further identified on the Mortgage Loan Schedule, which Mortgage Loan includes
without limitation the Mortgage Loan Documents, the Monthly Payments, Principal
Prepayments, Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds,
REO Disposition Proceeds, and all other rights, benefits, proceeds and
obligations arising from or in connection with such Mortgage Loan.
MORTGAGE LOAN DOCUMENTS: The original mortgage loan legal documents
held by the Custodian.
MORTGAGE LOAN REMITTANCE RATE: With respect to each Mortgage Loan, the
annual rate of interest remitted to the Owner, which shall be equal to the
related Mortgage Interest Rate minus the Servicing Fee Rate.
MORTGAGE LOAN SCHEDULE: The schedule of Mortgage Loans attached hereto
as EXHIBIT A, such schedule being acceptable to the Owner and the Servicer.
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.
MORTGAGOR: The obligor on a Mortgage Note.
NET LIQUIDATION PROCEEDS: As to any Mortgage Loan, Liquidation Proceeds
net of unreimbursed Servicing Advances, Servicing Fees and Monthly Advances and
expenses incurred by the Servicer in connection with the liquidation of the
Mortgage Loan and the related Mortgaged Property.
NONRECOVERABLE ADVANCE: Any advance previously made by the Servicer
pursuant to Section 5.03 or any Servicing Advance proposed to be made by the
Servicer in respect of a Mortgage Loan or REO Property which, in the good faith
judgment of the Servicer, may not be ultimately recoverable by the Servicer from
Liquidation Proceeds or Insurance Proceeds on such Mortgage Loan or REO Property
as provided herein. The determination by the Servicer that it has made a
Nonrecoverable Advance, or that a proposed advance may constitute a
Nonrecoverable Advance, shall be evidenced by an Officer's Certificate of the
Servicer delivered to the Owner and detailing the reasons for such
determination.
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 Servicer, and delivered to the Owner
as required by this Agreement.
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 Owner.
OWNER: Structured Asset Mortgage Investments II Inc., its successors in
interest and assigns (including the Trustee in connection with a Pass-Through
Transfer).
PARTIAL PRINCIPAL PREPAYMENT: A Principal Prepayment by a Mortgagor of
a partial principal balance of a Mortgage Loan.
PASS-THROUGH TRANSFER: The sale or transfer of some or all of the
Mortgage Loans to a trust as part of a publicly issued or privately placed,
rated or unrated mortgage-backed securities transaction.
PERIODIC RATE CAP: With respect to each ARM Loan, the maximum increase
or decrease in the Mortgage Interest Rate on any Adjustment Date.
PERMITTED INVESTMENTS: Any one or more of the following obligations or
securities:
(i) direct obligations of, and obligations the timely payment of which
are 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;
(ii) (a) demand or time deposits, federal funds or bankers' acceptances
issued by any depository institution or trust company incorporated
under the laws of the United States of America or any state thereof
(including any Trustee or the Master Servicer) 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 Federal Deposit Insurance
Corporation;
(iii) repurchase obligations with respect to (a) any security described
in clause (i) above or (b) any other security issued or guaranteed by
an 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, in either case entered into with a depository
institution or trust company (acting as principal) described in clause
(ii)(a) above;
(iv) securities bearing interest or sold at a discount issued by any
corporation (including any Trustee or the Master Servicer) 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 investment 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 securities issued by such corporation and held as
Permitted Investments to exceed 10% of the aggregate outstanding
principal balances and amounts of all the Permitted Investments;
(v) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations payable on demand or on a
specified date not more than one year after the date of issuance
thereof) which are rated in one of the two highest rating categories by
each Rating Agency at the time of such investment;
(vi) any other demand, money market or time deposit, obligation,
security or investment as may be acceptable to each Rating Agency; and
(vii) any money market funds the collateral of which consists of
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 (which may include repurchase obligations
secured by collateral described in clause (i)) and other securities
(including money market or common trust funds for which any Trustee or
the Master Servicer or any affiliate thereof acts as a manager or an
advisor) and which money market funds are rated in one of the two
highest rating categories by each Rating Agency;
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 obligations underlying such instrument or
if such security provides for payment of both principal and interest with a
yield to maturity in excess of 120% of the yield to maturity at 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 EXCESS: With respect to any Remittance Date, for
each Mortgage Loan that was the subject of a Principal Prepayment in full or in
part during the portion of the related Prepayment Period occurring between the
first day of the calendar month in which such Remittance Date occurs and the
Determination Date of the calendar month in which such Remittance Date occurs,
an amount equal to interest (to the extent received) at the applicable Mortgage
Loan Remittance Rate on the amount of such Principal Prepayment for the number
of days commencing on the first day of the calendar month in which such
Remittance Date occurs and ending on the last date through which interest is
collected from the related Mortgagor.
PREPAYMENT INTEREST SHORTFALL: With respect to any Remittance Date, for
each such Mortgage Loan that was the subject of a Principal Prepayment during
the portion of the related Prepayment Period occurring between the first day of
the related Prepayment Period and the last day of the calendar month preceding
the month in which such Remittance Date occurs, an amount equal to interest (to
be paid by the Servicer out of its own funds without reimbursement therefor) at
the applicable Mortgage Loan Remittance Rate on the amount of such Principal
Prepayment for the number of days commencing on the date on which the prepayment
is applied and ending on the last day of the calendar month preceding such
Remittance Date.
PREPAYMENT PERIOD: As to any Remittance Date, the period commencing on
the 16th day of the month prior to the month in which the related Remittance
Date occurs and ending on the 15th day of the month in which such Remittance
Date occurs.
PRIMARY MORTGAGE INSURANCE POLICY: Each primary policy of mortgage
insurance, or any replacement policy therefor obtained by the Servicer pursuant
to Section 4.08.
PRIME RATE: The prime rate of U.S. money center banks as published from
time to time in THE WALL STREET JOURNAL.
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.
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, which appraiser and the appraisal
made by such appraiser both satisfy the requirements of Title XI of FIRREA and
the regulations promulgated thereunder, all as in effect on the date the
Mortgage Loan was originated.
QUALIFIED DEPOSITORY: (a) The Custodian, (b) a depository, the accounts
of which are insured by the FDIC and the short term debt ratings and the long
term deposit ratings of which are rated in one of the two highest rating
categories by either of ▇▇▇▇▇'▇ Investors Service, Inc. or Fitch, Inc., or (c) a
depository, the short-term debt obligations, or other short-term deposits of
which are rated at least `A-2' and the long-term unsecured debt obligations of
which are rated at least `AA-' by Standard & Poor's Ratings Service, a division
of The McGraw Hill Companies Inc.
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 ▇▇▇▇▇▇
▇▇▇ and ▇▇▇▇▇▇▇ Mac.
RATING AGENCY: Standard & Poor's Ratings Service, a division of The
McGraw Hill Companies Inc., and ▇▇▇▇▇'▇ Investors Service, Inc.
REMIC: A "real estate mortgage investment conduit" within the meaning
of Section 860D of the Code.
REMIC PROVISIONS: The provisions of the Federal income tax law relating
to a REMIC, which appear at Section 860A through 860G of the Code, and related
provisions, and regulations, rulings or pronouncements promulgated thereunder,
as the foregoing may be in effect from time to time.
REMITTANCE DATE: The Remittance Date shall be the 23rd day of any
month, 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 Owner as described in Section 4.13.
SERVICER: EMC Mortgage Corporation, or any of its successors in
interest or any successor under this Agreement appointed as herein provided.
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 relating to each Mortgage Loan, 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), (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 and (e) compliance with the obligations under Section 4.08.
SERVICING FEE: With respect to each Mortgage Loan, the amount of the
annual servicing fee the Owner shall pay to the Servicer, which shall, for a
period of one full month, be equal to one-twelfth of the product of (a) the
applicable Servicing Fee Rate and (b) the outstanding principal balance of the
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 Owner to pay the Servicing
Fee is limited to, and the Servicing Fee is payable from the interest portion of
such Monthly Payment collected by the Servicer or as otherwise provided under
Section 4.05.
SERVICING FEE RATE: The Servicing Fee Rate shall be a rate per annum
equal to 0.375%.
SERVICING FILE: The documents, records and other items pertaining to a
particular Mortgage Loan and any additional documents relating to such Mortgage
Loan as are in, or as may from time to time come into, the Servicer's
possession.
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
Owner 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 after giving
effect to payments of principal due and received or for which a Monthly Advance
has been made, minus (ii) all amounts previously distributed to the Owner with
respect to the Mortgage Loan representing Principal Prepayments.
TRUSTEE: The Person appointed as trustee in connection with any
Pass-Through Transfer.
WHOLE LOAN TRANSFER: The sale or transfer of some or all of the
ownership interest in the Mortgage Loans by the Owner to one or more third
parties in whole loan or participation format, which third party may be ▇▇▇▇▇▇
Mae or ▇▇▇▇▇▇▇ Mac.
ARTICLE II
SERVICING OF MORTGAGE LOANS; POSSESSION OF SERVICING FILES; BOOKS AND
RECORDS; DELIVERY OF MORTGAGE LOAN DOCUMENTS
Section 2.01. SERVICING OF MORTGAGE LOANS.
The Servicer does hereby agree to service the Mortgage Loans in
accordance with the terms of this Agreement. The rights of the Owner to receive
payments with respect to the Mortgage Loans shall be as set forth in this
Agreement.
Section 2.02. MAINTENANCE OF SERVICING FILES.
The Servicer shall maintain a Servicing File consisting of all
documents necessary to service the Mortgage Loans. The possession of each
Servicing File by the Servicer is for the sole purpose of servicing the Mortgage
Loan, and such retention and possession by the Servicer is in a custodial
capacity only. The Servicer acknowledges that the ownership of each Mortgage
Loan, including the Note, the Mortgage, all other Mortgage Loan Documents and
all rights, benefits, proceeds and obligations arising therefrom or in
connection therewith, has been vested in the Owner. 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 Servicer
shall be received and held by the Servicer in trust for the exclusive benefit of
the Owner as the owner of the related Mortgage Loans. Any portion of the related
Servicing Files retained by the Servicer shall be appropriately identified in
the Servicer's computer system to clearly reflect the ownership of the related
Mortgage Loans by the Owner. The Servicer shall release its custody of the
contents of the related Servicing Files only in accordance with written
instructions of the Owner, except when such release is required as incidental to
the Servicer's servicing of the Mortgage Loans, such written instructions shall
not be required.
Section 2.03. BOOKS AND RECORDS.
The Servicer shall be responsible for maintaining, and shall maintain,
a complete set of books and records for the Mortgage Loans which shall be
appropriately identified in the Servicer's computer system to clearly reflect
the ownership of the Mortgage Loan by the Owner. In particular, the Servicer
shall maintain in its possession, available for inspection by the Owner, or its
designee and shall deliver to the Owner upon demand, evidence of compliance with
all federal, state and local laws, rules and regulations, and requirements of
▇▇▇▇▇▇ Mae 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 and eligibility
of any condominium project for approval by ▇▇▇▇▇▇ Mae 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 Servicer may be in the form of microfilm
or microfiche or such other reliable means of recreating original documents,
including but not limited to, optical imagery techniques so long as the Servicer
complies with the requirements of the ▇▇▇▇▇▇ ▇▇▇ Guide.
The Servicer shall maintain with respect to each Mortgage Loan and
shall make available for inspection by any Owner or its designee the related
Servicing File (or copies thereof) during the time the Owner retains ownership
of a Mortgage Loan and thereafter in accordance with applicable laws and
regulations.
Section 2.04. TRANSFER 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
Servicer 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 Servicer in accordance with this Section
2.04. The Owner may, subject to the terms of this Agreement, sell and transfer
one or more of the Mortgage Loans in accordance with Sections 10.02 and 11.12,
PROVIDED, however, that the transferee will not be deemed to be an Owner
hereunder binding upon the Servicer unless such transferee shall agree in
writing to be bound by the terms of this Agreement and an assignment and
assumption of this Agreement reasonably acceptable to the Servicer. The Owner
shall advise the Servicer in writing of the transfer. Upon receipt of notice of
the permitted transfer, the Servicer shall ▇▇▇▇ its books and records to reflect
the ownership of the Mortgage Loans of such assignee, and shall release the
previous Owner from its obligations hereunder with respect to the Mortgage Loans
sold or transferred.
Section 2.05. DELIVERY OF MORTGAGE LOAN DOCUMENTS.
The Servicer shall forward to the Custodian on behalf of the Owner
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 4 week(s) of their execution; provided, however, that the Servicer
shall provide the Custodian on behalf of the Owner with a certified true copy of
any such document submitted for recordation within 4 week(s) after 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 180 days
of its execution. If delivery is not completed within 180 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 Servicer shall
continue to use its best efforts to effect delivery as soon as possible
thereafter.
From time to time the Servicer may have a need for Mortgage Loan
Documents to be released by the Custodian. If the Servicer shall require any of
the Mortgage Loan Documents, the Servicer shall notify the Custodian in writing
of such request in the form of the request for release attached hereto as
EXHIBIT D. The Custodian shall deliver to the Servicer within five (5) Business
Days, any requested Mortgage Loan Document previously delivered to the
Custodian, provided that such documentation is promptly returned to the
Custodian when the Servicer no longer requires possession of the document, and
provided that during the time that any such documentation is held by the
Servicer, such possession is in trust for the benefit of the Owner.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SERVICER
The Servicer represents, warrants and covenants to the Owner that as of
the date hereof or as of such date specifically provided herein:
(i) (a) The Servicer is a validly existing corporation in good
standing under the laws of the State of its organization and is
qualified to transact business in, is in good standing under the laws
of, and possesses all licenses necessary for the conduct of its
business in, each state in which any Mortgaged Property is located or
is otherwise exempt or not required under applicable law to effect such
qualification or license and no demand for such qualification or
license has been made upon the Servicer by any such state, and in any
event the Servicer is in compliance with the laws of each 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;
(ii) (b) The Servicer has full power and authority to execute,
deliver and perform, and to enter into and consummate all transactions
contemplated by this Agreement and to conduct its business as presently
conducted, has duly authorized the execution, delivery and performance
of this Agreement, has duly executed and delivered this Agreement, and
this Agreement constitutes a legal, valid and binding obligation of the
Servicer, enforceable against it in accordance with its terms subject
to bankruptcy laws and other similar laws of general application
affecting rights of creditors and subject to the application of the
rules of equity, including those respecting the availability of
specific performance;
(iii) (c) None of the execution and delivery of this
Agreement, the consummation of the transactions contemplated thereby
and hereby, or the fulfillment of or compliance with the terms and
conditions of this Agreement will conflict with any of the terms,
conditions or provisions of the Servicer's articles of incorporation or
by-laws or materially conflict with or result in a breach of any of the
terms, conditions or provisions of any legal restriction or any
agreement or instrument to which the Servicer 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 Servicer
or its property is subject;
(iv) (d) There is no litigation pending or, to the Seller's
knowledge, threatened with respect to the Servicer which is reasonably
likely to have a material adverse effect on the execution, delivery or
enforceability of this Agreement, or which is reasonably likely to have
a material adverse effect on the financial condition of the Servicer;
(v) (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 Servicer of or compliance by the
Servicer with this Agreement or the consummation of the transactions
contemplated by this Agreement except for consents, approvals,
authorizations and orders which have been obtained; and
(vi) (f) The Servicer is an approved seller/servicer of
residential mortgage loans for ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac. The Servicer
is in good standing to service mortgage loans for ▇▇▇▇▇▇ Mae and
▇▇▇▇▇▇▇ Mac and no event has occurred which would make the Servicer
unable to comply with eligibility requirements or which would require
notification to either ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac.
ARTICLE IV
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 4.01. SERVICER TO ACT AS SERVICER.
The Servicer, as independent contract servicer, shall service and
administer the Mortgage Loans in accordance with this Agreement and with
Accepted Servicing Practices (giving due consideration to the Owner's reliance
on the Servicer), 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 with Accepted Servicing Practices and shall
exercise the same care that it customarily employs for its own account. Except
as set forth in this Agreement, the Servicer shall service the Mortgage Loans in
accordance with Accepted Servicing Practices in compliance with the servicing
provisions of the ▇▇▇▇▇▇ ▇▇▇ Guide, 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
fidelity bond and errors and omissions insurance, inspections, the restoration
of Mortgaged Property, the maintenance of Primary Mortgage Insurance Policies,
insurance claims, and title insurance, management 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 Loan Documents, 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 any of the servicing provisions of the ▇▇▇▇▇▇ Mae Guide, the
provisions of this Agreement shall control and be binding upon the Owner and the
Servicer. The Owner may, at its option, deliver powers-of-attorney to the
Servicer sufficient to allow the Servicer as servicer to execute all
documentation requiring execution on behalf of Owner with respect to the
servicing of the Mortgage Loans, including satisfactions, partial releases,
modifications and foreclosure documentation or, in the alternative, shall as
promptly as reasonably possible, execute and return such documentation to the
Servicer.
Consistent with the terms of this Agreement, the Servicer may waive,
modify or vary any term of any Mortgage Loan or consent to the postponement of
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 Owner, provided,
however, that unless the Servicer has obtained the prior written consent of the
Owner, the Servicer shall not permit any modification with respect to any
Mortgage Loan that would change the Mortgage Interest Rate, forgive the payment
of principal or interest, reduce or increase the outstanding principal balance
(except for actual payments of principal), change the final maturity date on
such Mortgage Loan or waive a prepayment penalty or charge. In the event of any
such modification which has been agreed to in writing by the Owner and which
permits the deferral of interest or principal payments on any Mortgage Loan, the
Servicer shall, on the Business Day immediately preceding the related 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 and Section 5.03, the difference between (a) such month's
principal and one month's interest at the related 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.
The Servicer shall perform all of its servicing responsibilities
hereunder or may cause a subservicer to perform any such servicing
responsibilities on its behalf, but the use by the Servicer of a subservicer
shall not release the Servicer from any of its obligations hereunder and the
Servicer shall remain responsible hereunder for all acts and omissions of each
subservicer as fully as if such acts and omissions were those of the Servicer.
Any such subservicer must be a ▇▇▇▇▇▇ ▇▇▇ approved seller/servicer or a ▇▇▇▇▇▇▇
Mac seller/servicer in good standing and no event shall have 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 seller/servicers by ▇▇▇▇▇▇▇ Mac, or which would require notification to
▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac. The Servicer shall pay all fees and expenses of each
subservicer from its own funds, and a subservicer's fee shall not exceed the
Servicing Fee.
At the cost and expense of the Servicer, without any right of
reimbursement from the Custodial Account, the Servicer shall be entitled to
terminate the rights and responsibilities of a subservicer and arrange for any
servicing responsibilities to be performed by a successor subservicer meeting
the requirements in the preceding paragraph, provided, however, that nothing
contained herein shall be deemed to prevent or prohibit the Servicer, at the
Servicer's option, from electing to service the related Mortgage Loans itself.
In the event that the Servicer's responsibilities and duties under this
Agreement are terminated pursuant to Section 8.04, 9.01 or 10.01, and if
requested to do so by the Owner, the Servicer shall at its own cost and expense
terminate the rights and responsibilities of each subservicer effective as of
the date of termination of the Servicer. The Servicer shall pay all fees,
expenses or penalties necessary in order to terminate the rights and
responsibilities of each subservicer from the Servicer's own funds without
reimbursement from the Owner.
Notwithstanding any of the provisions of this Agreement relating to
agreements or arrangements between the Servicer and a subservicer or any
reference herein to actions taken through a subservicer or otherwise, the
Servicer shall not be relieved of its obligations to the Owner and shall be
obligated to the same extent and under the same terms and conditions as if it
alone were servicing and administering the Mortgage Loans. The Servicer shall be
entitled to enter into an agreement with a subservicer for indemnification of
the Servicer by the subservicer and nothing contained in this Agreement shall be
deemed to limit or modify such indemnification.
Any subservicing agreement and any other transactions or services
relating to the Mortgage Loans involving a subservicer shall be deemed to be
between such subservicer and Servicer alone, and the Owner shall have no
obligations, duties or liabilities with respect to such Subservicer including no
obligation, duty or liability of Owner to pay such subservicer's fees and
expenses. For purposes of distributions and advances by the Servicer pursuant to
this Agreement, the Servicer shall be deemed to have received a payment on a
Mortgage Loan when a subservicer 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 Servicer will proceed with diligence
to collect all payments due under each Mortgage Loan when the same shall become
due and payable and shall, to the extent such procedures shall be consistent
with this Agreement and the terms and provisions of related Primary Mortgage
Insurance Policy, follow such collection procedures as it follows with respect
to mortgage loans comparable to the Mortgage Loans and held for its own account.
Further, the Servicer will take reasonable care in ascertaining and estimating
annual ground rents, taxes, assessments, water rates, fire and hazard insurance
premiums, mortgage insurance premiums, and all other charges that, as provided
in the Mortgage, will become due and payable to the end that the installments
payable by the Mortgagors will be sufficient to pay such charges as and when
they become due and payable.
With respect to Mortgage Loans affected by Hurricane ▇▇▇▇▇▇▇, if the Mortgaged
Property is located in public and individual assistance counties as designated
by FEMA (as set forth on its website ▇▇▇.▇▇▇▇.▇▇▇), the Servicer shall cease
charging of late fees and credit reporting activity for all Mortgagors in such
counties until January 3, 2006, and if reasonably prudent, may extend such
period as long as necessary. In addition, the Master Servicer shall suspend all
foreclosure and bankruptcy activity relating to such Mortgage Loans until
January 3, 2006, and if reasonably prudent, may extend such period as long as
necessary.
Section 4.03. REALIZATION UPON DEFAULTED MORTGAGE LOANS.
The Servicer shall use its reasonable efforts, consistent with the
procedures that the Servicer would use in servicing loans for its own account
and the requirements of the ▇▇▇▇▇▇ ▇▇▇ Guide, 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. The Servicer shall use its reasonable efforts to realize upon
defaulted Mortgage Loans in such manner as will maximize the receipt of
principal and interest by the Owner, taking into account, among other things,
the timing of foreclosure proceedings. The foregoing is subject to the
provisions that, in any case in which Mortgaged Property shall have suffered
damage, the 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 Owner 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. The Servicer shall be responsible for all costs
and expenses incurred by it in any such proceedings or functions as Servicing
Advances; provided, however, that it shall be entitled to reimbursement therefor
as provided 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 the Servicer has reasonable cause to believe that a
Mortgaged Property is contaminated by hazardous or toxic substances or wastes,
or if the Owner otherwise requests an environmental inspection or review of such
Mortgaged Property, such an inspection or review is to be conducted by a
qualified inspector. Upon completion of the inspection, the Servicer shall
promptly provide the Owner with a written report of the environmental
inspection. After reviewing the environmental inspection report, the Owner shall
determine how the Servicer shall proceed with respect to the Mortgaged Property.
Section 4.04. ESTABLISHMENT OF CUSTODIAL ACCOUNTS; DEPOSITS IN
CUSTODIAL ACCOUNTS.
The Servicer shall segregate and hold all funds collected and received
pursuant to each Mortgage Loan separate and apart from any of its own funds and
general assets and shall establish and maintain one or more Custodial Accounts.
Each Custodial Account shall be established with a Qualified Depository. To the
extent such funds are not deposited in a Custodial Account, such funds may be
invested in Permitted Investments for the benefit of the Owner (with any income
earned thereon for the benefit of the Servicer). 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 Owner upon request. The Servicer
acknowledges and agrees that the Servicer shall bear any losses incurred with
respect to Permitted Investments. The amount of any such losses shall be
immediately deposited by the Servicer in the Custodial Account, out of the
Servicer's own funds, with no right to reimbursement therefor.
The Servicer shall deposit in a mortgage clearing account on a daily
basis, and in the Custodial Account or Accounts no later than the 48 hours after
receipt of funds and retain therein the following payments and collections:
(1) (i) all payments on account of principal, including
Principal Prepayments and penalties, on the Mortgage Loans received
after the Cut-off Date;
(2) (ii) all payments on account of interest on the Mortgage
Loans adjusted to the related Mortgage Loan Remittance Rate received
after the Cut-off Date;
(3) (iii) all Net Liquidation Proceeds received after the
Cut-off Date;
(4) (iv) any net amounts received by the Servicer after the
Cut-off Date in connection with any REO Property pursuant to Section
4.13;
(5) (v) all Insurance Proceeds received after the Cut-off Date
including amounts required to be deposited pursuant to Sections 4.08
and 4.10, other than proceeds to be held in the Escrow Account and
applied to the restoration or repair of the Mortgaged Property or
released to the Mortgagor in accordance with the Servicer's normal
servicing procedures, the loan documents or applicable law;
(6) (vi) all Condemnation Proceeds affecting any Mortgaged
Property received after the Cut-off Date other than proceeds to be held
in the Escrow Account and applied to the restoration or repair of the
Mortgaged Property or released to the Mortgagor in accordance with the
Servicer's normal servicing procedures, the loan documents or
applicable law;
(7) (vii) any Monthly Advances as provided in Section 5.03;
(8) (viii) any amounts received after the Cut-off Date and
required to be deposited in the Custodial Account pursuant to Section
6.02; and
(9) (ix) with respect to each full or partial Principal
Prepayment received after the Cut-off Date, any Prepayment Interest
Shortfalls, to the extent of the Servicer's aggregate Servicing Fee
received with respect to the related Due Period.
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, and all Prepayment
Interest Excess need not be deposited by the Servicer in the Custodial Account.
Section 4.05. PERMITTED WITHDRAWALS FROM THE CUSTODIAL ACCOUNT.
The Servicer may, from time to time, make withdrawals from the
Custodial Account for the following purposes:
(i) to make payments to the Owner 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;
(iii) to reimburse itself for unreimbursed Servicing Advances and
Monthly Advances, the Servicer's right to reimburse itself pursuant to this
subclause (iii) with respect to any Mortgage Loan being limited to Liquidation
Proceeds, Condemnation Proceeds and Insurance Proceeds received after the
Cut-off Date related to such Mortgage Loan;
(iv) to pay to itself as servicing compensation (a) any interest earned
on funds in the Custodial Account (all such interest to be withdrawn monthly not
later than each Remittance Date) and (b) the Servicing Fee from that portion of
any payment recovery attributable to interest on a particular Mortgage Loan;
(v) to reimburse itself for any Nonrecoverable Advances;
(vi) to transfer funds to another Qualified Depository in accordance
with Section 4.09 hereof;
(vii) to reimburse itself as provided in Section 8.03 hereof;
(viii) to remove funds inadvertently placed in the Custodial Account in
error by the Servicer; and
(ix) 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 Servicer shall segregate and hold all funds collected and received
pursuant to each Mortgage Loan which constitute Escrow Payments separate and
apart from any of its own funds and general assets and shall establish and
maintain one or more Escrow Accounts. Each Escrow Account shall be established
with a Qualified Depository. To the extent such funds are not deposited in an
Escrow Account, such funds may be invested in Permitted Investments. Funds
deposited in an 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 Owner upon request. The Servicer
acknowledges and agrees that the Servicer shall bear any losses incurred with
respect to Permitted Investments. The amount of any such losses shall be
immediately deposited by the Servicer in the Escrow Account, as appropriate, out
of the Servicer's own funds, with no right to reimbursement therefor.
The Servicer shall deposit in a mortgage clearing account on a daily
basis, and in the Escrow Account or Accounts no later than 48 hours after
receipt of funds and retain therein:
(i) all Escrow Payments collected on account of the Mortgage Loans, for
the purpose of effecting timely payment of any items as are 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.
The Servicer shall make withdrawals from an Escrow Account only to
effect such payments as are required under this Agreement, and for such other
purposes as shall be as set forth in and in accordance with Section 4.07. Except
as provided in Section 4.07, the Servicer shall be entitled to retain any
interest paid on funds deposited in an Escrow Account by the Qualified
Depository.
Section 4.07. PERMITTED WITHDRAWALS FROM ESCROW ACCOUNT.
Withdrawals from the Escrow Account may be made by the Servicer only:
(i) to effect timely payments of ground rents, taxes, assessments,
water rates, fire and hazard insurance premiums, Primary Mortgage Insurance
Policy premiums, if applicable, 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 connection with an
acquisition of REO Property;
(v) for application to restoration or repair of the Mortgaged Property;
(vi) to pay to the Servicer, or to the Mortgagor to the extent required
by law, any interest paid on the funds deposited in the Escrow Account;
(vii) to pay to the Mortgagors or other parties Insurance Proceeds
deposited in accordance with Section 4.06;
(viii) to remove funds inadvertently placed in an Escrow Account in
error by the Servicer; and
(ix) to clear and terminate the Escrow Account on the termination of
this Agreement.
As part of its servicing duties, the Servicer shall pay to the
Mortgagors interest on funds in an Escrow Account, to the extent required by
law, and to the extent that interest earned on funds in the Escrow Account is
insufficient, shall pay such interest from its own funds, without any
reimbursement therefor.
Section 4.08. PAYMENT OF TAXES, INSURANCE AND OTHER CHARGES,
MAINTENANCE OF PRIMARY MORTGAGE INSURANCE POLICIES, COLLECTIONS THEREUNDER.
With respect to each Mortgage Loan, the Servicer shall maintain
accurate records reflecting the status of ground rents, taxes, assessments,
water rates and other charges which are or may become a lien upon the Mortgaged
Property and the status of Primary Mortgage Insurance Policy premiums and fire
and hazard insurance coverage and shall obtain, from time to time, all bills for
the payment of such charges, including renewal premiums and shall effect payment
thereof prior to the applicable penalty or termination date 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 Servicer shall determine
that any such payments are made by the Mortgagor when due. The Servicer assumes
full responsibility for the timely payment of all such bills and shall effect
timely payments of all such bills irrespective of the Mortgagor's faithful
performance in the payment of same or the making of the Escrow Payments and
shall make advances from its own funds to effect such payments.
The Servicer will maintain in full force and effect 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
maintained until the ratio of the current outstanding principal balance of the
related Mortgage Loan to the appraised value of the related Mortgaged Property,
based on the most recent appraisal of the Mortgaged Property performed by a
Qualified Appraiser, such appraisal to be included in the Servicing File, is
reduced to an amount for which ▇▇▇▇▇▇ Mae no longer requires such insurance to
be maintained. The Servicer will not cancel or refuse to renew any Primary
Mortgage Insurance Policy that is required to be kept in force under this
Agreement unless a replacement Primary Mortgage Insurance Policy for such
canceled or nonrenewed policy is obtained from and maintained with a Qualified
Insurer. The Servicer shall not take any action which would result in
noncoverage under any applicable 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 Servicer shall promptly notify the
insurer under the related Primary Mortgage Insurance Policy, if any, of such
assumption or substitution of liability in accordance with the terms of such
policy and shall take all actions which may be required by such insurer as a
condition to the continuation of coverage under the Primary Mortgage Insurance
Policy. If such Primary Mortgage Insurance Policy is terminated as a result of
such assumption or substitution of liability, the Servicer shall obtain a
replacement Primary Mortgage Insurance Policy as provided above.
In connection with its activities as servicer, the Servicer agrees to
prepare and present, on behalf of itself and the Owner, 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 and, in this regard, to
take such action as shall be necessary to permit recovery under any 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 shall be deposited in the Custodial Account, subject to
withdrawal pursuant to Section 4.05.
Section 4.09. TRANSFER OF ACCOUNTS.
The Servicer may transfer the Custodial Account or the Escrow Account
to a different Qualified Depository from time to time. The Servicer shall notify
the Owner of any such transfer within 15 Business Days of transfer. If any one
of the investment ratings of a Qualified Depository holding funds or Eligible
Investments in the Custodial Account or Escrow Account is downgraded by the
issuing rating agency, the Servicer shall, within three (3) Business Days of
receipt of notice of the downgrading, transfer all such accounts, funds and
Permitted Investments to a different Qualified Depository in accordance with
this Agreement.
Section 4.10. MAINTENANCE OF HAZARD INSURANCE.
The Servicer shall cause to be maintained for each Mortgage Loan fire
and hazard insurance with extended coverage as is customary in the area where
the Mortgaged Property is located in an amount which is equal to the lesser of
(i) the maximum insurable value of the improvements securing such Mortgage Loan
or (ii) the greater of (a) the outstanding principal balance of the Mortgage
Loan, and (b) the percentage such that the proceeds thereof shall be sufficient
to prevent the Mortgagor and/or the Mortgagee from becoming a co-insurer. If the
Mortgaged Property is in an area identified in the Federal Register by the
Federal Emergency Management Agency as being a special flood hazard area that
has federally-mandated flood insurance requirements, the Servicer will cause to
be maintained a flood insurance policy meeting the requirements of the current
guidelines of the Federal Insurance Administration with a generally acceptable
insurance carrier, in an amount representing coverage not less than the least of
(i) the 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. The Servicer shall also maintain on the REO
Property, fire and hazard insurance with extended coverage in an amount which is
at least equal to the maximum insurable value of the improvements which are a
part of such property, liability insurance and, to the extent required and
available under the Flood Disaster Protection Act of 1973, as amended, flood
insurance in an amount as provided above. Any amounts collected by the 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 the Servicer's normal
servicing procedures, 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 or the Mortgagor or
maintained on property acquired in respect of the Mortgage Loans, other than
pursuant to the ▇▇▇▇▇▇ ▇▇▇ Guide 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 Servicer 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
Servicer. The Servicer shall not interfere with the Mortgagor's freedom of
choice in selecting either his insurance carrier or agent, provided, however,
that the Servicer shall not accept any such insurance policies from insurance
companies unless such companies currently reflect a General Policy Rating in
Best's Key Rating Guide currently acceptable to ▇▇▇▇▇▇ Mae and are licensed to
do business in the state wherein the property subject to the policy is located.
Section 4.11 MAINTENANCE OF MORTGAGE IMPAIRMENT INSURANCE POLICY.
In the event that the Servicer shall obtain and maintain a mortgage
impairment or blanket policy issued by an issuer that has a Best rating of A:VI
insuring against hazard losses on all of Mortgaged Properties securing 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, the Servicer 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 Servicer shall, 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 one or more losses 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 Servicer
agrees to prepare and present, on behalf of the Owner, claims under any such
blanket policy in a timely fashion in accordance with the terms of such policy.
Upon request of the Owner, the Servicer shall cause to be delivered to the Owner
a certified true copy of such policy and a statement from the insurer thereunder
that such policy shall in no event be terminated or materially modified without
thirty (30) days prior written notice to the Owner.
Section 4.12. FIDELITY BOND, ERRORS AND OMISSIONS INSURANCE.
The Servicer shall maintain, at its own expense, a blanket fidelity
bond and an errors and omissions insurance policy, with broad coverage with
responsible companies that would meet the requirements of ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇
Mac on all officers, employees or other persons acting in any capacity with
regard to the Mortgage Loans and who handle funds, money, documents and papers
relating to the Mortgage Loans. The Fidelity Bond and errors and omissions
insurance shall be in the form of the Mortgage Banker's Blanket Bond and shall
protect and insure the Servicer against losses, including forgery, theft,
embezzlement, fraud, errors and omissions and negligent acts of such persons.
Such Fidelity Bond and 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 and errors and omissions insurance shall diminish or relieve the
Servicer from its duties and obligations as set forth in this Agreement. The
minimum coverage under any such Fidelity Bond and insurance policy shall be at
least equal to the corresponding amounts required by ▇▇▇▇▇▇ Mae in the ▇▇▇▇▇▇
▇▇▇ Guide or by ▇▇▇▇▇▇▇ Mac in the ▇▇▇▇▇▇▇ Mac Guide. The Servicer shall, upon
request of Owner, deliver to the Owner a certificate from the surety and the
insurer as to the existence of the Fidelity Bond and errors and omissions
insurance policy and shall 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 days prior written notice to the Owner. The
Servicer shall notify the Owner within five Business Days of receipt of notice
that such Fidelity Bond or insurance policy will be, or has been, materially
modified or terminated. The Owner and its 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.
Section 4.13. TITLE, MANAGEMENT AND DISPOSITION OF REO PROPERTY.
In the event that title to any Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure, the deed or certificate of sale
shall be taken in the name of the Owner or its designee. Any such Person or
Persons holding such title other than the Owner shall acknowledge in writing
that such title is being held as nominee for the benefit of the Owner.
The Servicer shall assume the responsibility for marketing
each REO Property in accordance with Accepted Servicing Practices.
Thereafter, the Servicer shall continue to provide certain
administrative services to the Owner relating to such REO Property as
set forth in this Section 4.13. The REO Property must be sold within
three years following the end of the calendar year of the date of
acquisition, unless a REMIC election has been made with respect to the
arrangement under which the Mortgage Loans and REO Property are held
and (i) the Owner shall have been supplied with an Opinion of Counsel
(at the Servicer's expense) to the effect that the holding by the
related trust of such Mortgaged Property subsequent to such three-year
period (and specifying the period beyond such three-year period for
which the Mortgaged Property may be held) will not result in the
imposition of taxes on "prohibited transactions" of the related trust
as defined in Section 860F of the Code, or cause the related REMIC to
fail to qualify as a REMIC, in which case the related trust may
continue to hold such Mortgaged Property (subject to any conditions
contained in such Opinion of Counsel), or (ii) the Owner (at the
Servicer's expense) or the Servicer shall have applied for, prior to
the expiration of such three-year period, an extension of such
three-year period in the manner contemplated by Section 856(e)(3) of
the Code, in which case the three-year period shall be extended by the
applicable period. If a period longer than three years is permitted
under the foregoing sentence and is necessary to sell any REO Property,
the Servicer shall report monthly to the Owner as to progress being
made in selling such REO Property.
Notwithstanding any other provision of this Agreement, if a REMIC
election has been made, no Mortgaged Property held by a REMIC shall be rented
(or allowed to continue to be rented) or otherwise used for the production of
income by or on behalf of the related trust or sold or managed in such a manner
or pursuant to any terms that would (i) cause such Mortgaged Property to fail to
qualify at any time as "foreclosure property" within a meaning of Section
860G(a)(8) of the Code, (ii) subject the related trust to the imposition of any
federal or state income taxes on "net income from foreclosure property" with
respect to such Mortgaged Property within the meaning of Section 860G(c) of the
Code, or (iii) cause the sale of such Mortgaged Property to result in the
receipt by the related trust or any income from non-permitted assets as
described in Section 860F(a) (2)(B) of the Code, unless the Servicer has agreed
to indemnify and hold harmless the related trust with respect to the imposition
of any such taxes.
The Servicer shall deposit or cause to be deposited, on a daily basis
in each Custodial Account all revenues received with respect to the related REO
Property and shall withdraw therefrom funds necessary for the proper operation,
management and maintenance of the REO Property, including the cost of
maintaining any hazard insurance pursuant to Section 4.10 hereof. The Servicer
shall maintain separate records with respect to each REO Property identifying
all deposits and withdrawals from the Custodial Account for each REO Property.
The Servicer shall furnish to the Owner on each Remittance Date, an
operating statement for each REO Property covering the operation of each REO
Property for the previous month. Such operating statement shall be accompanied
by such other information as the Owner shall reasonably request.
The Servicer shall, either itself or through an agent selected by the
Servicer, and in accordance with the ▇▇▇▇▇▇ Mae Guide, 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. Each REO Disposition 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
interest of the Owner. The REO Disposition Proceeds from the sale of the REO
Property shall be promptly deposited in the Custodial Account. As soon as
practical thereafter, the expenses of such sale shall be paid and the Servicer
shall reimburse itself for any related Servicing Advances, or Monthly Advances
made pursuant to Section 5.03.
The Servicer 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 may be required by
the circumstances. The Servicer shall make or cause the inspector to make a
written report of each such inspection. Such reports shall be retained in the
Servicing File and copies thereof shall be forwarded by the Servicer to the
Owner.
Notwithstanding anything to the contrary set forth in this Section
4.13, the parties hereto hereby agree that the Owner, at its option, shall be
entitled to manage, conserve, protect and operate each REO Property for its own
benefit (such option, an "REO Option"). In connection with the exercise of an
REO Option, the prior two paragraphs and the related provisions of Section 4.03
and Section 4.04(iii) (such provisions, the "REO Marketing Provisions") shall be
revised as follows. Following the acquisition of any Mortgaged Property, the
Servicer shall submit a detailed invoice to the Owner for all related Servicing
Advances and, upon exercising the REO Option, the Owner shall promptly reimburse
the Servicer for such amounts. In the event the REO Option is exercised with
respect to an REO Property, Section 4.04 (iii) shall not be applicable thereto.
References made in Section 4.03 with respect to the reimbursement of Servicing
Advances shall, for purposes of such REO Property, be deemed to be covered by
this paragraph. The Owner acknowledges that, in the event it exercises an REO
Option, with respect to the related REO Property, there shall be no breach by
the Servicer based upon or arising out of the Servicer's failure to comply with
the REO Marketing Provisions.
Section 4.14. NOTIFICATION OF ADJUSTMENTS.
With respect to each Mortgage Loan, the Servicer shall adjust the Mortgage
Interest Rate on the related Interest Rate Adjustment Date in compliance with
requirements of applicable law and the related Mortgage and Mortgage Note. The
Servicer shall execute and deliver any and all necessary notices required under
applicable law and the terms of the related Mortgage Note and Mortgage regarding
the Mortgage Interest Rate adjustments. The Servicer shall promptly, upon
written request therefor, deliver to the Owner such notifications and any
additional applicable data regarding such adjustments and the methods used to
calculate and implement such adjustments. Upon the discovery by the Servicer of
the receipt of notice from the Owner that the Servicer has failed to adjust a
Mortgage Interest Rate in accordance with the terms of the related Mortgage Note
and Mortgage, the Servicer shall immediately deposit in the Custodial Account
from its own funds the amount of any interest loss or deferral caused to the
Owner thereby.
ARTICLE V
PAYMENTS TO THE OWNER
Section 5.01. REMITTANCES.
On each Remittance Date, the Servicer shall remit to the Owner (i) all
amounts credited to the Custodial Account as of the close of business on the
last day of the calendar month preceding the Determination Date, net of charges
against or withdrawals from the Custodial Account pursuant to Section 4.05,
except (a) Principal Prepayments received on or before the 15th day of the month
in which a Remittance Date occurs shall be remitted to the Owner on the
Remittance Date of such month, and (b) Principal Prepayments received after the
15th day of the month in which a Remittance Date occurs shall be remitted to the
Owner on the next following Remittance Date, plus, to the extent not already
deposited in the Custodial Account, the sum of (ii) all Monthly Advances, if
any, which the Servicer is obligated to distribute pursuant to Section 5.03 and
(iii) all Prepayment Interest Shortfalls the Servicer is required to make up
pursuant to Section 4.04, minus (iv) any amounts attributable to Monthly
Payments collected after the Cut-off Date but due on a Due Date or Dates
subsequent to the last day of the related Due Period, which amounts shall be
remitted on the related Remittance Date next succeeding the Due Period for such
amounts.
With respect to any remittance received by the Owner after the Business
Day on which such payment was due, the Servicer shall pay to the Owner 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 percentage points, but in no event greater
than the maximum amount permitted by applicable law. Such interest shall be
remitted to the Owner by the Servicer on the date such late payment is made and
shall cover the period commencing with the day following such Business Day and
ending with the Business Day on which such payment is made, both inclusive. The
payment by the Servicer of any such interest shall not be deemed an extension of
time for payment or a waiver of any Event of Default by the Servicer.
Section 5.02. STATEMENTS TO THE OWNER.
The Servicer shall furnish to the Owner an individual Mortgage Loan
accounting report (a "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, such Report
shall be received by the Owner no later than the tenth calendar day of the month
of the related Remittance Date (or, with respect to information as to Principal
Prepayments and prepayment penalties no later than one (1) Business Day after
the end of each Prepayment Period), a report in an Excel (or compatible)
electronic format (that can be downloaded into a Sybase database), in such
format as may be mutually agreed upon by both the Owner and the Servicer, and in
hard copy, which Report shall contain the following:
(i) with respect to each Monthly Payment, the amount of such remittance
allocable to interest; principal, Principal Prepayments and prepayment
penalties;
(ii) the amount of servicing compensation received by the Servicer
during the prior due period;
(iii) the aggregate Stated Principal Balance of the Mortgage Loans;
(iv) 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
(v) such other data as may reasonably be required by the Owner.
The Servicer shall also provide with each such Report a trial balance,
sorted in the Owner's assigned loan number order, and such other loan level
information as described on EXHIBITS E and F, in electronic tape form.
The Servicer shall prepare and file any and all information statements
or other filings required to be delivered to any governmental taxing authority
or to Owner pursuant to any applicable law with respect to the Mortgage Loans
and the transactions contemplated hereby. In addition, the Servicer shall
provide the Owner with such information concerning the Mortgage Loans as is
necessary for the Owner to prepare its federal income tax return as the Owner
may reasonably request from time to time.
In addition, not more than 60 days after the end of each calendar year,
the Servicer shall furnish to each Person who was an Owner at any time during
such calendar year an annual statement in accordance with the requirements of
applicable federal income tax law as to the aggregate of remittances of
principal and interest for the applicable portion of such year.
Section 5.03. MONTHLY ADVANCES BY THE SERVICER.
Not later than the close of business on the Business Day preceding each
Remittance Date, the Servicer shall 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 Monthly Payments, adjusted to the related
Mortgage Loan Remittance Rate, which are delinquent at the close of business on
the related Determination Date; provided, however, that the amount of any such
deposit may be reduced by the Amount Held for Future Distribution (as defined
below) then on deposit in the Custodial Account. Any portion of the Amount Held
for Future Distribution used to pay Monthly Advances shall be replaced by the
Servicer by deposit into the Custodial Account on any future Remittance Date to
the extent that the funds that are available in the Custodial Account for
remittance to the Owner on such Remittance Date are less than the amount of
payments required to be made to the Owner on such Remittance Date.
The "Amount Held for Future Distribution" as to any Remittance Date
shall be the total of the amounts held in the Custodial Account at the close of
business on the preceding Determination Date which were received after the
Cut-off Date on account of (i) Liquidation Proceeds, Insurance Proceeds, and
Principal Prepayments received or made in the month of such Remittance Date, and
(ii) payments which represent early receipt of scheduled payments of principal
and interest due on a date or dates subsequent to the related Due Date.
The Servicer's obligation to make such Monthly Advances as to any
Mortgage Loan will continue through the final disposition or liquidation of the
Mortgaged Property, unless the Servicer deems such advance to be nonrecoverable
from Liquidation Proceeds, REO Disposition Proceeds or Insurance Proceeds with
respect to the applicable Mortgage Loan. In such latter event, the Servicer
shall deliver to the Owner an Officer's Certificate of the Servicer to the
effect that an officer of the Servicer has reviewed the related Servicing File
and has obtained a recent appraisal and has made the reasonable determination
that any additional advances are nonrecoverable from Liquidation or Insurance
Proceeds with respect to the applicable Mortgage Loan.
Section 5.04. LIQUIDATION REPORTS.
Upon the foreclosure sale of any Mortgaged Property or the acquisition
thereof by the Owner pursuant to a deed-in-lieu of foreclosure, the Servicer
shall submit to the Owner a liquidation report with respect to such Mortgaged
Property in such form as the Servicer and the Owner shall agree. The Servicer
shall also provide reports on the status of REO Property containing such
information as Owner may reasonably require.
ARTICLE VI
GENERAL SERVICING PROCEDURES
Section 6.01. ASSUMPTION AGREEMENTS.
The Servicer will, to the extent it has knowledge of any conveyance or
prospective conveyance by any Mortgagor of a 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
Servicer shall not exercise any such rights if prohibited by law or the terms of
the Mortgage Note from doing so or if the exercise of such rights would impair
or threaten to impair any recovery under the related Primary Mortgage Insurance
Policy, if any. If the Servicer reasonably believes it is unable under
applicable law to enforce such "due-on-sale" clause, the Servicer, will enter
into an assumption agreement with the person to whom the Mortgaged Property has
been conveyed or is proposed to be conveyed, pursuant to which such person
becomes liable under the Mortgage Note and, to the extent permitted by
applicable state law, the Mortgagor remains liable thereon. Where an assumption
is allowed pursuant to this Section 6.01, the Servicer, with the prior consent
of the primary mortgage insurer, if any, is authorized to enter into a
substitution of liability agreement with the person to whom the Mortgaged
Property has been conveyed or is proposed to be conveyed pursuant to which the
original mortgagor is released from liability and such Person is substituted as
mortgagor and becomes liable under the related Mortgage Note. Any such
substitution of liability agreement shall be in lieu of an assumption agreement.
In connection with any such assumption or substitution of liability,
the Servicer shall follow the underwriting practices and procedures of the
▇▇▇▇▇▇ ▇▇▇ Guide. With respect to an assumption or substitution of liability,
the Mortgage Interest Rate borne by the related Mortgage Note and the amount of
the Monthly Payment may not be changed. The Servicer shall notify the Owner that
any such substitution of liability or assumption agreement has been completed by
forwarding to the Owner the original of any such substitution of liability or
assumption agreement, which document shall be added to the related Mortgage Loan
Documents and shall, for all purposes, be considered a part of such related
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
Servicer.
Notwithstanding the foregoing paragraphs of this section or any other
provision of this Agreement, the Servicer 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
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 LOAN
DOCUMENTS.
Upon the payment in full of any Mortgage Loan, the Servicer will
immediately notify the Custodian with a certification and request for release by
a Servicing Officer, which certification shall include a statement to the effect
that all amounts received in connection with such payment which are required to
be deposited in the Custodial Account pursuant to Section 4.04 have been so
deposited, and a request for delivery to the Servicer of the portion of the
Mortgage Loan Documents held by the Custodian. Upon receipt of such
certification and request, the Owner shall promptly release or cause the
Custodian to promptly release the related Mortgage Loan Documents to the
Servicer and the Servicer shall prepare and deliver for execution by the Owner
or at the Owner's option execute under the authority of a power of attorney
delivered to the Servicer by the Owner any satisfaction or release. No expense
incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the Custodial Account.
In the event the 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 Owner may have under the mortgage
instruments, the Servicer, upon written demand, shall remit within one Business
Day to the Owner the then outstanding principal balance of the related Mortgage
Loan by deposit thereof in the Custodial Account. The Servicer shall maintain
the Fidelity Bond 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 Loans, including for the purpose of collection under any Primary
Mortgage Insurance Policy, upon request of the Servicer and delivery to the
Custodian of a servicing receipt signed by a Servicing Officer, the Custodian
shall release the portion of the Mortgage Loan Documents held by the Custodian
to the Servicer. Such servicing receipt shall obligate the Servicer to promptly
return the related Mortgage Loan Documents to the Custodian, 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 such documents have 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 promptly delivered to the Owner or the Custodian a certificate
of a Servicing Officer certifying as to the name and address of the Person to
which such documents were delivered and the purpose or purposes of such
delivery. Upon receipt of a certificate of a Servicing Officer stating that such
Mortgage Loan was liquidated, the servicing receipt shall be released by the
Owner or the Custodian, as applicable, to the Servicer.
Section 6.03. SERVICING COMPENSATION.
As compensation for its services hereunder, the Servicer shall be
entitled to withdraw from the Custodial Account or to retain from interest
payments on the Mortgage Loans the amounts provided for as the Servicer's
Servicing Fee. Additional servicing compensation in the form of assumption fees,
as provided in Section 6.01, late payment charges and other ancillary fees shall
be retained by the Servicer to the extent not required to be deposited in the
Custodial Account. The Servicer shall be required to pay all expenses incurred
by it in connection with its servicing activities hereunder and shall not be
entitled to reimbursement therefor except as specifically provided for.
Section 6.04. ANNUAL STATEMENT AS TO COMPLIANCE; FINANCIAL STATEMENTS.
The Servicer will deliver to the Master Servicer on or before February
28 of each year, beginning with February 28, 2006, an Officer's Certificate in a
form acceptable for filing with the Securities and Exchange Commission as an
exhibit to a Form 10-K stating that (i) 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, (ii) the Servicer has
fully complied with the provisions of this Agreement and (iii) to the best of
such officers' knowledge, based on such review, the Servicer has fulfilled all
of its obligations under this Agreement throughout such year, or, if there has
been a default in the fulfillment of any such obligation, specifying each such
default known to such officer and the nature and status thereof.
Upon request by the Owner or the Master Servicer, the Servicer will
deliver to such requesting party a copy of the audited (if such financial
statements are available, otherwise unaudited) financial statements of the
Servicer for the most recent fiscal year of the Servicer.
Section 6.05. ANNUAL INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS'
SERVICING REPORT.
On or before February 28 of each year beginning February 28, 2006, the
Servicer at its expense shall cause a firm of independent public accountants
which is a member of the American Institute of Certified Public Accountants to
furnish a statement to the Master Servicer in a form acceptable for filing with
the Securities and Exchange Commission as an exhibit to a Form 10-K to the
effect that such firm has examined certain documents and records relating to the
servicing of mortgage loans by the Company generally that include a sampling of
the Mortgage Loans, the provisions of Article II and Article IV have been
complied with and, on the basis of such an examination conducted substantially
in accordance with the Uniform Single Attestation Program for Mortgage Bankers,
such servicing has been conducted in compliance with this Agreement, 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.
Section 6.06. OWNER'S RIGHT TO EXAMINE SERVICER RECORDS.
The Owner shall have the right to examine and audit, at its expense,
upon reasonable notice to the Servicer, during business hours or at such other
times as might be reasonable under applicable circumstances, any and all of the
books, records, documentation or other information of the Servicer, or held by
another for the Servicer or on its behalf or otherwise, which relate to the
performance or observance by the Servicer of the terms, covenants or conditions
of this Agreement.
The Servicer shall provide to the Owner and any supervisory agents or
examiners representing a state or federal governmental agency having
jurisdiction over the Owner 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 applicable federal or state government regulations.
Section 6.07. COMPLIANCE WITH REMIC PROVISIONS.
If a REMIC election has been made with respect to the arrangement under
which the Mortgage Loans and REO Property are held, the Servicer shall not take
any action, cause the REMIC to take any action or fail to take (or fail to cause
to be taken) any action that, under the REMIC Provisions, if taken or not taken,
as the case may be could (i) endanger the status of the REMIC as a REMIC or (ii)
result in the imposition of a tax upon the REMIC (including but not limited to
the tax on "prohibited transactions" as defined in Section 860F(a)(2) of the
Code and the tax on "contribution" to a REMIC set forth in Section 860G(d) of
the Code unless the Servicer has received an Opinion of Counsel (at the expense
of the party seeking to take such actions) to the effect that the contemplated
action will not endanger such REMIC status or result in the imposition of any
such tax.
Section 6.08. NON-SOLICITATION.
The Servicer shall not knowingly conduct any solicitation exclusively
targeted to the Mortgagors for the purpose of inducing or encouraging the early
prepayment or refinancing of the related Mortgage Loans. It is understood and
agreed that promotions undertaken by the Servicer or any agent or affiliate of
the Servicer which are directed to the general public at large, including,
without limitation, mass mailings based on commercially acquired mailing lists,
newspaper, radio and television advertisements shall not constitute solicitation
under this section. Nothing contained herein shall prohibit the Servicer from
(i) distributing to Mortgagors any general advertising including information
brochures, coupon books, or other similar documentation which indicates services
the Seller offers, including refinances or (ii) providing financing of home
equity loans to Mortgagors at the Mortgagor's request.
Section 6.09. ANNUAL CERTIFICATION.
(a) For so long as (1) the Mortgage Loans are being master
serviced by the Master Servicer and (2) the Master Servicer is required
by Section 302 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 to provide an annual
certification, by February 28th of each year (or if not a Business Day,
the immediately preceding Business Day), or at any other time upon
thirty (30) days written request, an officer of the Servicer shall
execute and deliver an Officer's Certificate to the Master Servicer for
the benefit of such Master Servicer and its officers, directors and
affiliates, certifying as to the following matters:
(i) Based on my knowledge, the information in the
Annual Statement of Compliance, the Annual Independent Public
Accountant's Servicing Report and all servicing reports,
officer's certificates and other information relating to the
servicing of the Mortgage Loans submitted to the Master
Servicer 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 light of the
circumstances under which such statements were made, not
misleading as of the date of this certification;
(ii) Based on my knowledge, the servicing information
required to be provided to the Master Servicer by the Servicer
under this Agreement has been provided to the Master Servicer;
(iii) I am responsible for reviewing the activities
performed by the Servicer under this Agreement and based upon
my knowledge and the review required by this Agreement, and
except as disclosed in the Annual Statement of Compliance or
the Annual Independent Public Accountant's Servicing Report
submitted to the Master Servicer, the Servicer has, as of the
date of this certification fulfilled its obligations under
this Agreement; and
(iv) I have disclosed to the Master Servicer 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 this Agreement.
(b) The Servicer shall indemnify and hold harmless the Master
Servicer 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 6.09 or the negligence, bad faith or willful misconduct of the
Servicer in connection therewith. If the indemnification provided for
herein is unavailable or insufficient to hold harmless the Master
Servicer, then the Servicer agrees that it shall contribute to the
amount paid or payable by the Master Servicer as a result of the
losses, claims, damages or liabilities of the Master Servicer in such
proportion as is appropriate to reflect the relative fault of the
Master Servicer on the one hand and the Servicer on the other in
connection with a breach of the Servicer's obligations under this
Section 6.09 or the Servicer's negligence, bad faith or willful
misconduct in connection therewith.
ARTICLE VII
REPORTS TO BE PREPARED BY SERVICER
Section 7.01. SERVICER SHALL PROVIDE INFORMATION AS REASONABLY
REQUIRED.
The Servicer shall furnish to the Owner upon request, during the term
of this Agreement, such periodic, special or other reports or information,
whether or not provided for herein, as shall be necessary, reasonable or
appropriate with respect to the purposes of this Agreement. The Servicer may
negotiate with the Owner for a reasonable fee for providing such report or
information, unless (i) the Servicer is required to supply such report or
information pursuant to any other section of this Agreement, or (ii) the report
or information has been requested in connection with Internal Revenue Service or
other regulatory agency requirements. All such reports or information shall be
provided by and in accordance with all reasonable instructions and directions
given by the Owner. The Servicer agrees to execute and deliver all such
instruments and take all such action as the Owner, from time to time, may
reasonably request in order to effectuate the purpose and to carry out the terms
of this Agreement.
ARTICLE VIII
THE SERVICER
Section 8.01. INDEMNIFICATION; THIRD PARTY CLAIMS.
The Servicer agrees to indemnify the Owner, its successors and assigns,
any agent of the Owner, and the Master Servicer, and hold each of such Persons
harmless from and against any and all claims, losses, damages, penalties, fines,
forfeitures, legal fees and related costs, judgments, and any other costs, fees
and expenses that such Person may sustain in any way related to the failure of
the Servicer to perform in any way its duties and service the Mortgage Loans in
strict compliance with the terms of this Agreement and for breach of any
representation or warranty of the Servicer contained herein. The Servicer shall
immediately notify the Owner or other indemnified Person if a claim is made by a
third party with respect to this Agreement or the Mortgage Loans, assume (with
the consent of the Owner and such other Indemnified Person and with counsel
reasonably satisfactory to the Owner and such Person) the defense of any such
claim and pay all expenses in connection therewith, including counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be entered
against it or such other indemnified Person in respect of such claim but failure
to so notify the Owner and such other indemnified Person shall not limit its
obligations hereunder. The Servicer agrees that it will not enter into any
settlement of any such claim without the consent of the Owner and such other
indemnified Person unless such settlement includes an unconditional release of
the Owner and such other indemnified Person from all liability that is the
subject matter of such claim. The provisions of this Section 8.01 shall survive
termination of this Agreement.
Section 8.02. MERGER OR CONSOLIDATION OF THE SERVICER.
The Servicer will keep in full effect its existence, rights and
franchises as a corporation under the laws of the state of its incorporation
except as permitted herein, and will obtain and preserve its qualification to do
business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement or any of the Mortgage Loans and to perform its
duties under this Agreement.
Any Person into which the 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 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, or which is a HUD-approved
mortgagee whose primary business is in origination and servicing of first lien
mortgage loans, and (iii) which is a ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac approved
seller/servicer in good standing.
Section 8.03. LIMITATION ON LIABILITY OF THE SERVICER AND OTHERS.
Neither the Servicer nor any of the officers, employees or agents of
the Servicer shall be under any liability to the Owner 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 Servicer or any such person against any
breach of warranties or representations made herein, or failure to perform in
any way its obligations in compliance with any standard of care set forth in
this Agreement, or any liability which would otherwise be imposed by reason of
gross negligence or any breach of the terms and conditions of this Agreement.
The Servicer and any officer, employee or agent of the Servicer may rely in good
faith on any document of any kind prima facie properly executed and submitted by
the Owner respecting any matters arising hereunder. The Servicer shall not be
under any obligation to appear in, prosecute or defend any legal action which is
not incidental to its duties to service the Mortgage Loans in accordance with
this Agreement and which in its opinion may involve it in any expenses or
liability; provided, however, that the Servicer may, with the consent of the
Owner, which consent shall not be unreasonably withheld, undertake any such
action which it may deem necessary or desirable with 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 Owner will be liable, and
the Servicer shall be entitled to be reimbursed therefor from the Custodial
Account pursuant to Section 4.05.
Section 8.04. SERVICER NOT TO RESIGN.
The Servicer shall not resign from the obligations and duties hereby
imposed on it except by mutual consent of the Servicer and the Owner or upon the
determination that its duties hereunder are no longer permissible under
applicable law and such incapacity cannot be cured by the Servicer. Any such
determination permitting the resignation of the Servicer shall be evidenced by
an Opinion of Counsel to such effect delivered to the Owner which Opinion of
Counsel shall be in form and substance acceptable to the Owner. No such
resignation shall become effective until a successor shall have assumed the
Servicer's responsibilities and obligations hereunder in the manner provided in
Section 11.01.
Section 8.05. NO TRANSFER OF SERVICING.
With respect to the retention of the Servicer to service the Mortgage
Loans hereunder, the Servicer acknowledges that the Owner has acted in reliance
upon the Servicer's independent status, the adequacy of its servicing
facilities, plan, personnel, records and procedures, its integrity, reputation
and financial standing and the continuance thereof. Without in any way limiting
the generality of this section, the Servicer shall not either assign this
Agreement or the servicing hereunder or delegate its rights or duties hereunder
or any portion thereof, or sell or otherwise dispose of all or substantially all
of its property or assets, without the prior written approval of the Owner,
which approval shall not be unreasonably withheld; provided that the Servicer
may assign the Agreement and the servicing hereunder without the consent of
Owner to an affiliate of the Servicer to which all servicing of the Servicer is
assigned so long as (i) such affiliate is a ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac approved
servicer and (ii) if it is intended that such affiliate be spun off to the
shareholders of the Servicer, such affiliate have a GAAP net worth of at least
$25,000,000 and (iii) such affiliate shall deliver to the Owner a certification
pursuant to which such affiliate shall agree to be bound by the terms and
conditions of this Agreement and shall certify that such affiliate is a ▇▇▇▇▇▇
Mae and ▇▇▇▇▇▇▇ Mac approved servicer in good standing.
ARTICLE IX
DEFAULT
Section 9.01. EVENTS OF DEFAULT.
In case one or more of the following Events of Default by the Servicer
shall occur and be continuing, that is to say:
(i) any failure by the Servicer to remit to the Owner any payment
required to be made under the terms of this Agreement which continues unremedied
for one (1) Business Day after written notice thereof (it being understood that
this subparagraph shall not affect Servicer's obligation pursuant to Section
5.01 to pay default interest on any remittance received by the Owner after the
Business Day on which such payment was due); or
(ii) any failure on the part of the Servicer duly to observe or perform
in any material respect any other of the covenants or agreements on the part of
the Servicer set forth in this Agreement, the breach of which has a material
adverse effect and which continue unremedied for a period of thirty days (except
that such number of days shall be fifteen in the case of a failure to pay any
premium for any insurance policy required to be maintained under this Agreement
and such failure shall be deemed to have a material adverse effect) after the
date on which written notice of such failure, requiring the same to be remedied,
shall have been given to the Servicer by the Owner; or
(iii) a decree or order of a court or agency or supervisory authority
having jurisdiction for the appointment of a conservator or receiver or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshaling of
assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Servicer and
such decree or order shall have remained in force undischarged or unstayed for a
period of sixty days; or
(iv) the Servicer shall consent to the appointment of a conservator or
receiver or liquidator in any insolvency, bankruptcy, readjustment of debt,
marshaling of assets and liabilities or similar proceedings of or relating to
the Servicer or of or relating to all or substantially all of its property; or
(v) the Servicer shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its obligations; or
(vi) the Servicer ceases to be approved by either ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇
Mac (to the extent such entities are then operating in a capacity similar to
that in which they operate on the date hereof) as a mortgage loan servicer for
more than thirty days to the extent such entities perform similar functions; or
(vii) the Servicer attempts to assign its right to servicing
compensation hereunder or the Servicer attempts, without the consent of the
Owner, to sell or otherwise dispose of all or substantially all of its property
or assets or to assign this Agreement or the servicing responsibilities
hereunder or to delegate its duties hereunder or any portion thereof except as
otherwise permitted herein; or
(viii) the Servicer ceases to be 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
perform its obligations hereunder; or
(ix) failure by the Servicer to duly perform, within the required time
period, its obligations under Section 6.04, 6.05 or 6.09 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 Servicer by the Owner or by any Master Servicer responsible for master
servicing the Mortgage Loans pursuant to a Pass-Through Transfer involving such
Mortgage Loans;
then, and in each and every such case, so long as an Event of Default
shall not have been remedied, the Owner, by notice in writing to the Servicer
may, in addition to whatever rights the Owner may have under Section 8.01 and at
law or equity to damages, including injunctive relief and specific performance,
terminate all the rights and obligations of the Servicer under this Agreement
and in and to the Mortgage Loans and the proceeds thereof without compensating
the Servicer for the same. On or after the receipt by the Servicer of such
written notice, all authority and power of the Servicer under this Agreement,
whether with respect to the Mortgage Loans or otherwise, shall pass to and be
vested in the successor appointed pursuant to Section 11.01. Upon written
request from the Owner, the Servicer shall prepare, execute and deliver, any and
all documents and other instruments, place in such successor's possession all
Servicing Files, and do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise, at the Servicer's sole expense. The Servicer
agrees to cooperate with the Owner and such successor in effecting the
termination of the Servicer's responsibilities and rights hereunder, including,
without limitation, the transfer to such successor for administration by it of
all cash amounts which shall at the time be credited by the Servicer to the
Custodial Account or Escrow Account or thereafter received with respect to the
Mortgage Loans or any REO Property.
Section 9.02. WAIVER OF DEFAULTS.
The Owner may waive only by written notice any default by the Servicer
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.
ARTICLE X
TERMINATION
Section 10.01. TERMINATION.
The respective obligations and responsibilities of the Servicer shall
terminate upon: (i) the later of the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan or the disposition of
all REO Property and the remittance of all funds due hereunder; or (ii) by
mutual consent of the Servicer and the Owner in writing; or (iii) termination by
the Owner pursuant to Section 9.01. Simultaneously with any such termination and
the transfer of servicing hereunder, the Servicer shall be entitled to be
reimbursed for any outstanding Servicing Advances and Monthly Advances.
Section 10.02. REMOVAL OF MORTGAGE LOANS FROM INCLUSION UNDER THIS
AGREEMENT UPON A WHOLE LOAN TRANSFER OR A PASS-THROUGH TRANSFER.
The Servicer acknowledges and the Owner agrees that with respect to
some or all of the Mortgage Loans, the Owner may effect either Whole Loan
Transfers or Pass-Through Transfers.
The Servicer shall cooperate with the Owner in connection with any
Whole Loan Transfer or Pass-Through Transfer contemplated by the Owner pursuant
to this Section. In connection therewith, and without limitation, the Owner
shall deliver any reconstitution agreement or other document related to the
Whole Loan Transfer or Pass-Through Transfer to the Servicer prior to such
transfer and the Servicer shall execute any such reconstitution agreement which
contains provisions substantially similar to those herein or otherwise
reasonably acceptable to the Owner and the Servicer and which restates the
representations and warranties contained in Article III as of the date of
transfer (except to the extent any such representation or warranty is not
accurate on such date); provided, however, that Servicer agrees that any such
reconstitution agreement in connection with a Whole Loan Transfer to ▇▇▇▇▇▇ Mae
will be reasonably acceptable to the Servicer if it obligates the Servicer to
service the Mortgage Loans identified therein and to remit and report, all in
accordance with the ▇▇▇▇▇▇ ▇▇▇ Guide.
In connection with this Section 10.02, the Servicer agrees to deliver
to the Owner for inclusion in any prospectus or other offering material such
publicly available information regarding the Servicer, its financial condition
and its mortgage loan delinquency, foreclosure and loss experience and any
additional information requested by the Owner, and to deliver to the Owner any
similar non public, unaudited financial information, in which case the Owner
shall bear the cost of having such information audited by certified public
accountants if the Owner desires such an audit, or as is otherwise reasonably
requested by the Owner and which the Servicer is capable of providing without
unreasonable effort or expense, and to indemnify the Owner and its affiliates
for material misstatements or omissions contained in such information; to
deliver to the Owner and to any Person designated by the Owner, at the Owner's
expense, such statements and audit letters of reputable, certified public
accountants pertaining to information provided by the Servicer pursuant to the
preceding clause as shall be reasonably requested by the Owner; and to deliver
to the Owner, and to any Person designated by the Owner, such legal documents
and in-house Opinions of Counsel as are customarily delivered by originators or
servicers, as the case may be, and reasonably determined by the Owner to be
necessary in connection with Pass-Through Transfers, as the case may be, such
in-house Opinions of Counsel for a Pass-Through Transfer to be in the form
reasonably acceptable to the Owner, it being understood that the cost of any
opinions of outside special counsel that may be required for a Pass-Through
Transfer shall be the responsibility of the Owner.
All Mortgage Loans not sold or transferred pursuant to a Whole Loan
Transfer or Pass-Through Transfer shall be subject to this Agreement and shall
continue to be serviced in accordance with the terms of this Agreement and with
respect thereto this Agreement shall remain in full force and effect.
Section 10.03. MASTER SERVICER.
The Servicer, including any successor servicer hereunder, shall be
subject to the supervision of the Master Servicer, which Master Servicer shall
be obligated to ensure that the Servicer services the Mortgage Loans in
accordance with the provisions of this Agreement. The Master Servicer, acting on
behalf of the Owner, shall have the same rights as the Owner to enforce the
obligations of the Servicer under this Agreement. The Master Servicer shall be
entitled to terminate the rights and obligations of the Servicer under this
Agreement upon the failure of the Servicer to perform any of its obligations
under this Agreement if such failure constitutes an Event of Default as provided
in Article IX of this Agreement. Notwithstanding anything to the contrary, in no
event shall the Master Servicer assume any of the obligations of the Owner under
this Agreement.
Section 10.04. TRANSFER OF SERVICING FOR DEFAULTED LOANS.
The Owner shall have the option, exercisable in its sole discretion and
upon reasonable written notice to the Servicer, to transfer to a third-party
servicer any Mortgage Loan that is more than sixty (60) days delinquent with
respect to Monthly Payments. Upon such transfer, the Owner will reimburse the
Servicer for all unreimbursed Monthly Advances and Servicing Advances with
respect to such Mortgage Loan and the reasonable costs and expenses incurred by
the Servicer in connection with the transfer of servicing with respect to such
Mortgage Loan.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01. SUCCESSOR TO THE SERVICER.
Prior to termination of the Servicer's responsibilities and duties
under this Agreement pursuant to Sections 8.04, 9.01 or 10.01(ii), the Owner
shall (i) succeed to and assume all of the Servicer'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
Servicer under this Agreement prior to the termination of the Servicer's
responsibilities, duties and liabilities under this Agreement. In connection
with such appointment and assumption, the Owner may make such arrangements for
the compensation of such successor out of payments on Mortgage Loans as the
Owner and such successor shall agree. In the event that the Servicer's duties,
responsibilities and liabilities under this Agreement should be terminated
pursuant to the aforementioned sections, the Servicer shall discharge such
duties and responsibilities during the period from the date it acquires
knowledge of such termination until the effective date thereof with the same
degree of diligence and prudence which it is obligated to exercise under this
Agreement, and shall take no action whatsoever that might impair or prejudice
the rights or financial condition of its successor. The resignation or removal
of the Servicer pursuant to the aforementioned sections shall not become
effective until a successor shall be appointed pursuant to this section and
shall in no event relieve the Servicer of the representations and warranties
made pursuant to Article III and the remedies available to the Owner under
Section 8.01, it being understood and agreed that the provisions of such Article
III and Section 8.01 shall be applicable to the Servicer notwithstanding any
such resignation or termination of the Servicer, or the termination of this
Agreement.
Any successor appointed as provided herein shall execute, acknowledge
and deliver to the Servicer and to the Owner an instrument accepting such
appointment, whereupon such successor shall become fully vested with all the
rights, powers, duties, responsibilities, obligations and liabilities of the
Servicer, with like effect as if originally named as a party to this Agreement.
Any termination or resignation of the Servicer or this Agreement pursuant to
Section 8.04, 9.01 or 10.01 shall not affect any claims that the Owner may have
against the Servicer arising prior to any such termination or resignation.
The Servicer shall promptly deliver to the successor the funds in the
Custodial Account and the Escrow Account and the Servicing Files and related
documents and statements held by it hereunder and the Servicer shall account for
all funds. The Servicer 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 Servicer. The successor shall make such
arrangements as it may deem appropriate to reimburse the Servicer for
unrecovered Monthly Advances and Servicing Advances which the successor retains
hereunder and which would otherwise have been recovered by the Servicer pursuant
to this Agreement but for the appointment of the successor servicer.
Upon a successor's acceptance of appointment as such, the Servicer
shall notify the Owner of such appointment.
All reasonable costs and expenses incurred in connection with replacing
the Servicer upon its resignation or the termination of the Servicer in
accordance with the terms of this Agreement, including, without limitation, (i)
all legal costs and expenses and all due diligence costs and expenses associated
with an evaluation of the potential termination of the Servicer as a result of
an Event of Default and (ii) all costs and expenses associated with the complete
transfer of servicing, including all servicing files and all servicing data and
the completion, correction or manipulation of such servicing data as may be
required by the successor servicer to correct any errors or insufficiencies in
the servicing data or otherwise to enable the successor service to service the
Mortgage Loans in accordance with this Agreement, shall be payable on demand by
the resigning or terminated Servicer without any right of reimbursement
therefor.
Section 11.02. AMENDMENT.
This Agreement may be amended from time to time by the Servicer and the
Owner by written agreement signed by the Servicer and the Owner.
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 all the
properties subject to the Mortgages are situated, and in any other appropriate
public recording office or elsewhere, such recordation to be effected by the
Owner at the Owner's expense on direction of the Owner accompanied by an opinion
of counsel to the effect that such recordation materially and beneficially
affects the interest of the Owner or is necessary for the administration or
servicing the Mortgage Loans.
Section 11.04. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES
OF CONFLICTS OF LAWS. 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 transmitted by telecopier and confirmed by a
similar mailed writing, as follows:
(i) if to the Servicer:
Mac ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, President
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) if to the Owner:
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
(iii) if to the Master Servicer:
▇▇▇▇▇ Fargo Bank, N.A.
▇.▇. ▇▇▇ ▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Client Manager PRIME 2005-5
And for overnight delivery to:
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Client Manager PRIME 2005-5
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
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
address (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 which
is prohibited or which is held to be void or unenforceable shall be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof. Any part, provision, representation or warranty of
this Agreement which is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall be ineffective, as to such jurisdiction,
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof. If the invalidity of any
part, provision, representation or warranty of this Agreement shall deprive any
party of the economic benefit intended to be conferred by this Agreement, the
parties shall negotiate, in good faith, to develop a structure the economic
effect of which is nearly as possible the same as the economic effect of this
Agreement without regard to such invalidity.
Section 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; and
(vi) the term "include" or "including" shall mean without limitation by
reason of enumeration.
Section 11.09. REPRODUCTION OF DOCUMENTS.
This Agreement and all documents relating hereto, 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. Except as required to be disclosed
by law, 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 this Agreement.
Section 11.11. ASSIGNMENT BY THE OWNER.
The Owner shall have the right, without the consent of the Servicer
hereof, 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 Owner hereunder, by executing an assignment and
assumption agreement reasonably acceptable to the Servicer and the assignee or
designee shall accede to the rights and obligations hereunder of the Owner with
respect to such Mortgage Loans. In no event shall Owner sell a partial interest
in any Mortgage Loan. All references to the Owner in this Agreement shall be
deemed to include its assignees or designees. It is understood and agreed
between the Owners and the Servicer that no more than five (5) Persons shall
have the right of owner under this Agreement at any one time.
Section 11.12. NO PARTNERSHIP.
Nothing herein contained shall be deemed or construed to create a
co-partnership or joint venture between the parties hereto and the services of
the Servicer shall be rendered as an independent contractor and not as agent for
Owner.
Section 11.13. EXECUTION, SUCCESSORS AND ASSIGNS.
This Agreement may be executed in one or more counterparts and by the
different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together, shall
constitute one and the same agreement. Subject to Section 8.05, this Agreement
shall inure to the benefit of and be binding upon the Servicer and the Owner and
their respective successors and assigns.
Section 11.14. ENTIRE AGREEMENT.
Each of the Servicer and the Owner acknowledge that no representations,
agreements or promises were made to it by the other party or any of its
employees other than those representations, agreements or promises specifically
contained herein. This Agreement sets forth the entire understanding between the
parties hereto and shall be binding upon all successors of both parties.
IN WITNESS WHEREOF, the Servicer and the Owner have caused their names
to be signed hereto by their respective officers thereunto duly authorized as of
the date and year first above written.
EMC MORTGAGE CORPORATION
Servicer
By:
--------------------------------------------
Name:
Title:
STRUCTURED ASSET MORTGAGE INVESTMENTS II INC.
Owner
By:
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
Title: Vice President
EXHIBIT A
MORTGAGE LOAN SCHEDULE
EXHIBIT B
CUSTODIAL ACCOUNT LETTER AGREEMENT
(date)
To:______________________
______________________
______________________
(the "Depository")
As "Servicer" under the Servicing Agreement, dated as of December 1,
2005, (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 "[Servicer] Custodial Account, in trust for [Owner], Owner of
Whole Loan Mortgages, and various Mortgagors." All deposits in the account shall
be subject to withdrawal therefrom by order signed by the Servicer. You may
refuse any deposit which would result in violation of the requirement that the
account be fully insured as described below. This letter is submitted to you in
duplicate. Please execute and return one original to us.
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 will be invested in Permitted Investments as defined in the Agreement.
[ ]
(name of Depository)
By:____________________
Name:__________________
Title:_________________
EXHIBIT C
ESCROW ACCOUNT LETTER AGREEMENT
(date)
To:___________________________
___________________________
___________________________
(the "Depository")
As "Servicer" under the Servicing Agreement, dated as of December 1,
2005 (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 "[Servicer] Escrow Account, in trust for [Owner], Owner of Whole
Loan Mortgages, and various Mortgagors." All deposits in the account shall be
subject to withdrawal therefrom by order signed by the Servicer. You may refuse
any deposit which would result in violation of the requirement that the account
be fully insured as described below. This letter is submitted to you in
duplicate. Please execute and return one original to us.
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 will be invested in Permitted Investments as defined in the Agreement.
[ ]
(name of Depository)
By:____________________
Name:__________________
Title:_________________
EXHIBIT D
REQUEST FOR RELEASE OF DOCUMENTS
To: ▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇., ▇▇ ▇▇▇▇▇
Attn: ________________
Re: Custodial Agreement dated as of November 30, 1999, between EMC
Mortgage Corporation and ▇▇▇▇▇ Fargo Bank, N.A., as Custodian
In connection with the administration of the Mortgage Loans held by you
as Custodian for the Owner pursuant to the above-captioned Custody Agreement, we
request the release, and hereby acknowledge receipt, of the Custodian's Mortgage
File for the Mortgage Loan described below, for the reason indicated.
MORTGAGE LOAN NUMBER:
MORTGAGOR NAME, ADDRESS & ZIP CODE:
REASON FOR REQUESTING DOCUMENTS (check one):
_______ 1. Mortgage Paid in Full
_______ 2. Foreclosure
_______ 3. Substitution
_______ 4. Other Liquidation (Repurchases, etc.)
_______ 5. Nonliquidation [Reason:____________________________]
Address to which Custodian should
Deliver the Custodian's Mortgage File: ____________________________________
____________________________________
____________________________________
By:_________________________________
(authorized signer)
Issuer:_____________________________
Address:____________________________
____________________________
Date:_______________________________
CUSTODIAN
▇▇▇▇▇ Fargo Bank, N.A.
Please acknowledge the execution of the above request by your signature and date
below:
------------------------------------ -----------------
Signature Date
Documents returned to Custodian:
------------------------------------ -----------------
Custodian Date
EXHIBIT E
LOAN LEVELFORMAT FOR TAPE INPUT,
SERVICER PERIOD REPORTING
The format for the tape should be:
1. Record length of 240
2. Blocking factor of 07 records per block
3. ASCII
4. Unlabeled tape
5. 6250 or 1600 BPI (please indicate)
COBOL
FIELD NAME POSITION LENGTH "PICTURE"
---------- -------- ------ ---------
Master Servicer No 001-002 2 "01"
Unit Code 003-004 2 " "
Loan Number 005-014 10 X(10)
Borrower Name 015-034 20 X(20)
Old Payment Amount 035-045 11 S9(9)V9(02)
Old Loan Rate 046-051 6 9(2)V9(04)
Servicer Fee Rate 052-057 6 9(2)V9(04)
Servicer Ending Balance 058-068 11 S9(9)V9(02)
Servicer Next Due Date 069-076 8 CCYYMMDD
Curtail Amt 1 - Before 077-087 11 S9(9)V9(02)
Curtail Date 1 088-095 8 CCYYMMDD
Curtail Amt 1 - After 096-106 11 S9(9)V9(02)
Curtail Amt 2 - Before 107-117 11 S9(9)V9(02)
Curtail Date 2 118-125 8 CCYYMMDD
Curtail Amt 2 - After 126-136 11 S9(9)V9(02)
Curtail Amt 3 - Before 137-147 11 S9(9)V9(02)
Curtail Date 3 148-155 8 CCYYMMDD
Curtail Amt 3 - After 156-166 11 S9(9)V9(02)
New Payment Amount 167-177 11 S9(9)V9(02)
New Loan Rate 178-183 6 9(2)V9(04)
Index Rate 184-189 6 9(2)V9(04)
Remaining Term 190-192 3 9(3)
Liquidation Amount 193-203 11 S9(9)V9(02)
Action Code 204-205 2 X(02)
Scheduled Principal 206-216 11 S9(9)V9(02)
Scheduled Interest 217-227 11 S9(9)V9(02)
Scheduled Ending Balance 228-238 11 S9(9)V9(02)
FILLER 239-240 2 X(02)
Trailer Record:
Number of Records 001-006 6 9(06)
FILLER 007-240 234 X(234)
Field Names and Descriptions:
FIELD NAME DESCRIPTION
---------- -----------
Master Servicer No. Hard code as "01" used internally
Unit Code Hard code as " " used internally
Loan Number Investor's loan number
Borrower Name Last name of borrower
Old Payment Amount P&I amount used for the applied payment
Old Loan Rate Gross interest rate used for the applied payment
Servicer Fee Rate Servicer's fee rate
Servicer Ending Balance Ending actual balance after a payment has been applied
Servicer Next Due Date Borrower's next due date for a payment
Curtailment Amount 1 - Before Amount of curtailment applied before the payment
Curtailment Date 1 Date of curtailment should coincide with the payment date
applicable to the curtailment
Curtailment Amount 1 - After Amount of curtailment applied after the payment
Curtailment Amount 2 - Before Amount of curtailment applied before the payment
Curtailment Date 2 Date of curtailment should coincide with the payment date
applicable to the curtailment
Curtailment Amount 2 - After Amount of curtailment applied after the payment
Curtailment Amount 3 - Before Amount of curtailment applied before the payment
Curtailment Date 3 Date of curtailment should coincide with the payment date
applicable to the curtailment
Curtailment Amount 3 - After Amount of curtailment applied after the payment
New Payment Amount For ARM, Equal, or
Buydown loans, when a payment change
occurs, this is the scheduled
payment
New Loan Rate For ARM loans, when the
gross interest rate change occurs,
this is the scheduled rate
Index Rate For ARM loans, the index rate used in calculating the new
gross interest rate
Remaining Term For ARM loans, the number of months left on the loan used
to determine the new P&I amount
Liquidation Amount The payoff amount of the loan
Action Code For delinquent loans:
12 -- Relief Provisions
15 -- Bankruptcy/Litigation 20 --
Referred for Deed-in-lieu, short
sale 30 -- Referred to attorney to
begin foreclosure 60 -- Loan Paid in
full 70 -- Real Estate Owned
Scheduled Principal Amount of principal from borrower payment due to
bondholder
Scheduled Interest Amount of interest from borrower payment due to bondholder
Scheduled Ending Balance Ending scheduled balance of loan
FILLER Should be filled with spaces
EXHIBIT F
REPORTING DATA FOR DEFAULTED LOANS
Data must be submitted to ▇▇▇▇▇ Fargo Bank in an EXCEL spreadsheet format with
fixed field names and data type. The EXCEL spreadsheet should be used as a
template consistently every month when submitting data.
TABLE: DELINQUENCY
NAME TYPE SIZE
---- ---- ----
SERVICER LOAN # NUMBER (DOUBLE) 8
INVESTOR LOAN # NUMBER (DOUBLE) 8
BORROWER NAME TEXT 20
ADDRESS TEXT 30
STATE TEXT 2
Due Date Date/Time 8
ACTION CODE TEXT 2
FC Received Date/Time 8
File Referred to Atty Date/Time 8
NOD Date/Time 8
Complaint Filed Date/Time 8
Sale Published Date/Time 8
Target Sale Date Date/Time 8
Actual Sale Date Date/Time 8
Loss Mit Approval Date Date/Time 8
Loss Mit Type Text 5
Loss Mit Estimated Completion Date Date/Time 8
Loss Mit Actual Completion Date Date/Time 8
Loss Mit Broken Plan Date Date/Time 8
BK Chapter Text 6
BK Filed Date Date/Time 8
Post Petition Due Date/Time 8
Motion for Relief Date/Time 8
Lift of Stay Date/Time 8
RFD Text 10
Occupant Code Text 10
Eviction Start Date Date/Time 8
Eviction Completed Date Date/Time 8
List Price Currency 8
List Date Date/Time 8
Accepted Offer Price Currency 8
Accepted Offer Date Date/Time 8
Estimated REO Closing Date Date/Time 8
Actual REO Sale Date Date/Time 8
O ITEMS IN BOLD ARE MANDATORY FIELDS. WE MUST RECEIVE INFORMATION IN
THOSE FIELDS EVERY MONTH IN ORDER FOR YOUR FILE TO BE ACCEPTED.
The Action Code Field should show the applicable numeric code to indicate that a
special action is being taken. The Action Codes are the following:
12-RELIEF PROVISIONS
15-BANKRUPTCY/LITIGATION
20-REFERRED FOR DEED-IN-LIEU
30-REFERRED FORE FORECLOSURE
▇▇-▇▇▇▇▇▇
▇▇-▇▇▇▇▇▇▇▇▇▇
▇▇-▇▇▇-▇▇▇▇ FOR SALE
71-THIRD PARTY SALE/CONDEMNATION
72-REO-PENDING CONVEYANCE-POOL INSURANCE CLAIM FILED
▇▇▇▇▇ Fargo Bank will accept alternative Action Codes to those above, provided
that the Codes are consistent with industry standards. If Action Codes other
than those above are used, the Servicer must supply ▇▇▇▇▇ Fargo Bank with a
description of each of the Action Codes prior to sending the file.
DESCRIPTION OF ACTION CODES:
ACTION CODE 12 - To report a Mortgage Loan for which the Borrower has been
granted relief for curing a delinquency. The Action Date is the date the relief
is expected to end. For military indulgence, it will be three months after the
Borrower's discharge from military service.
ACTION CODE 15 - To report the Borrower's filing for bankruptcy or instituting
some other type of litigation that will prevent or delay liquidation of the
Mortgage Loan. The Action Date will be either the date that any repayment plan
(or forbearance) instituted by the bankruptcy court will expire or an additional
date by which the litigation should be resolved.
ACTION CODE 20 - To report that the Borrower has agreed to a deed-in-lieu or an
assignment of the property. The Action Date is the date the Servicer decided to
pursue a deed-in-lieu or the assignment.
ACTION CODE 30 - To report that the decision has been made to foreclose the
Mortgage Loan. The Action Date is the date the Servicer referred the case to the
foreclosure attorney.
ACTION CODE 60 - To report that a Mortgage Loan has been paid in full either at,
or prior to, maturity. The Action Date is the date the pay-off funds were
remitted to the Master Servicer.
ACTION CODE 65 - To report that the Servicer is repurchasing the Mortgage Loan.
The Action Date is the date the repurchase proceeds were remitted to the Master
Servicer.
ACTION CODE 70 - To report that a Mortgage Loan has been foreclosed or a
deed-in-lieu of foreclosure has been accepted, and the Servicer, on behalf of
the owner of the Mortgage Loan, has acquired the property and may dispose of it.
The Action Date is the date of the foreclosure sale or, for deeds-in-lieu, the
date the deed is recorded on behalf of the owner of the Mortgage Loan.
ACTION CODE 71 - To report that a Mortgage Loan has been foreclosed and a third
party acquired the property, or a total condemnation of the property has
occurred. The Action Date is the date of the foreclosure sale or the date the
condemnation award was received.
ACTION CODE 72 - To report that a Mortgage Loan has been foreclosed, or a
deed-in-lieu has been accepted, and the property may be conveyed to the mortgage
insurer and the pool insurance claim has been filed. The Action Date is the date
of the foreclosure sale, or, for deeds-in-lieu, the date of the deed for
conventional mortgages.
The Loss Mit Type field should show the approved Loss Mitigation arrangement.
The following are acceptable:
ASUM- APPROVED ASSUMPTION
BAP- BORROWER ASSISTANCE PROGRAM
CO- CHARGE OFF
DIL- DEED-IN-LIEU
FFA- FORMAL FORBEARANCE AGREEMENT
MOD- LOAN MODIFICATION
PRE- PRE-SALE
SS- SHORT SALE
MISC- ANYTHING ELSE APPROVED BY THE PMI OR POOL INSURER
▇▇▇▇▇ Fargo Bank will accept alternative Loss Mitigation Types to those above,
provided that they are consistent with industry standards. If Loss Mitigation
Types other than those above are used, the Servicer must supply ▇▇▇▇▇ Fargo Bank
with a description of each of the Loss Mitigation Types prior to sending the
file.
The Occupant Code field should show the current status of the property. The
acceptable codes are:
MORTGAGOR
TENANT
UNKNOWN
VACANT
EXHIBIT H-3
SERVICING AGREEMENT
FIFTH THIRD
This is a Purchase, Warranties and Servicing Agreement, dated as of
September 1, 2002 and is executed between EMC MORTGAGE CORPORATION, as
Purchaser, with offices located at Mac ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (the "Purchaser"), and Fifth Third Mortgage
Company, with offices located at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇ (the "Company").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Purchaser has heretofore agreed to purchase from the
Company and the Company has heretofore agreed 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;
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 Company 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.
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 New York or in the State of Ohio, or (iii) a day
on which banks in the State of New York or in the State of Ohio 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: Fifth Third Mortgage Company, their 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 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.
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 Company (by an
appraiser who met the requirements of the Company and ▇▇▇▇▇▇ ▇▇▇) 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 Company 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 Adjustable Rate
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 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 sub-servicer) or (iii) with an entity which is an institution
whose deposits are insured by the FDIC, 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, or (d) a principal
subsidiary of a bank holding company, 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 sub-servicer) and of any creditors or
depositors of the institution in which such account is maintained or (v) in a
separate non-trust account without FDIC 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.
ELIGIBLE INSTITUTION: Fifth Third Mortgage Company, or 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 Adjustable Rate 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.
▇▇▇▇▇▇ 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.
FHLMC: The Federal Home Loan Mortgage Corporation, or any successor
thereto.
FHLMC GUIDE: The FHLMC Single Family Seller/Servicer Guide and all
amendments or additions thereto.
FIDELITY BOND: A fidelity bond to be maintained by the Company pursuant
to Section 4.12.
FIRREA: The Financial Institutions Reform, Recovery, and Enforcement
Act of 1989.
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.
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.
MONTHLY ADVANCE: The aggregate of the advances made by the Company on
any Remittance Date pursuant to Section 5.03.
MONTHLY PAYMENT: The scheduled monthly 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.
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;
(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.);
(25) credit score and/or mortgage score, if applicable;
(26) 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;
(27) a code indicating whether or not the Mortgage Loan has a
prepayment penalty and if so, the amount and term thereof; and
(28) the Current Appraised Value of the Mortgage Loan and Current LTV,
if applicable.
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.
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.
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.
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;
(ii) (a) demand or time deposits, federal funds or bankers'
acceptances issued by any depository institution 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;
(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;
(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 investment 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 securities
issued by such corporation and held as Permitted Investments
to exceed 10% of the aggregate outstanding principal balances
of all of the Mortgage Loans and Permitted Investments;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable
on demand or on a specified date not more than one year after
the date of issuance thereof) which are rated in one of the
two highest rating categories by each Rating Agency at the
time of such investment;
(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
(vii) any money market funds the collateral of which consists
of 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 (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.
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 obligations underlying such instrument or
if such security provides for payment of both principal and interest with a
yield to maturity 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.
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 Company 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: EMC Mortgage Corporation, its successors in interest and
assigns.
QUALIFIED APPRAISER: An appraiser, duly appointed by the Company, 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 FHLMC.
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.
REMITTANCE DATE: The 18th day of any month, beginning with the First
Remittance Date, or if such 18th day is not a Business Day, the first Business
Day immediately preceding such 18th day.
REO DISPOSITION: The final sale by the Company of any REO Property.
REO DISPOSITION PROCEEDS: Amounts received by the Company in connection
with a related REO Disposition.
REO PROPERTY: A Mortgaged Property acquired by the Company on behalf of
the Purchaser as described in Section 4.13.
REPURCHASE PRICE: With respect to any Mortgage Loan, a price equal to
(i) the product of the greater of 100% or the percentage of par as stated in the
Confirmation multiplied by the Stated Principal Balance of such Mortgage Loan on
the repurchase date, plus (ii) 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, (iii) third party expenses incurred in connection with the
transfer of the Mortgage Loan being repurchased; 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.
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 Company of its servicing
obligations, including, but not limited to, the cost of (a) the preservation,
restoration and protection of the Mortgaged Property, (b) any enforcement,
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 Company 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 Company 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.
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 Company, 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 Company 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 Company involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name appears on a list of servicing officers furnished by the Company to the
Purchaser upon request, as such list may from time to time be amended.
STATED PRINCIPAL BALANCE: As to each Mortgage Loan 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.
SUBSERVICER: Any subservicer which is subservicing the Mortgage Loans
pursuant to a Subservicing Agreement. Any subservicer shall meet the
qualifications set forth in Section 4.01.
SUBSERVICING AGREEMENT: An agreement between the Company and a
Subservicer, if any, for the servicing of the Mortgage Loans.
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 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. In the event of any conflict, inconsistency or
discrepancy between any of the provisions of this Agreement and any of the
servicing provisions of the related Term Sheet, the provisions of the related
Term Sheet shall control and be binding upon the Purchaser and the Company.
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, with
servicing retained by the Company. 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 the
Company or any successor servicer 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 deposit any such prepaid amounts
into the Custodial Account, which account is established for the benefit of the
Purchaser for subsequent remittance by the Company to the Purchaser.
Section 2.03 SERVICING OF MORTGAGE LOANS.
Simultaneously with the execution and delivery of each Term Sheet, the
Company does hereby agree to directly 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 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 Company is at the will of
the Purchaser, for the sole purpose of servicing the related Mortgage Loan, and
such retention and possession by the Company is in a custodial capacity only.
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 shall be appropriately identified in the Company's
computer system to clearly reflect the ownership of the Mortgage Loans by the
Purchaser. The Company shall 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 Company'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.
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 maintaining, and shall maintain, a complete
set of books and records for the Mortgage Loans that shall be appropriately
identified in the Company's computer system to clearly reflect the ownership of
the Mortgage Loan by the Purchaser. In particular, the Company shall maintain in
its possession, available for inspection by the Purchaser, or its designee and
shall deliver to the Purchaser upon demand, evidence of compliance with all
federal, state and local laws, rules and regulations, and requirements of ▇▇▇▇▇▇
▇▇▇ or FHLMC, 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 FHLMC, 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 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 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 keep at its servicing office books and records in
which, subject to such reasonable regulations as it may prescribe, the Company
shall note transfers of Mortgage Loans. No transfer of a Mortgage Loan 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, provided, however, that 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 hereto executed by the
transferee shall have been delivered to the Company. The Purchaser also shall
advise the Company of the transfer. Upon receipt of notice of the transfer, the
Company shall ▇▇▇▇ its books and records to reflect the ownership of the
Mortgage Loans of such assignee, and the previous Purchaser shall be released
from its obligations hereunder with respect to the Mortgage Loans sold or
transferred, except with respect to any liabilities, claims and/or obligations
that arose as a result of the Purchaser's ownership of the Mortgage Loans during
its period of ownership.
Section 2.07 DELIVERY OF MORTGAGE LOAN DOCUMENTS.
The Company shall deliver and release 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), (9) and (16) in Exhibit A hereto shall be delivered by the
Company 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 may have in its possession,
shall be retained by the Company in trust for the Purchaser. If the Company
cannot deliver 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 180 days from the related Closing Date, deliver 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 180 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
deliver 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
180 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 effect delivery as soon as
possible thereafter, provided that if such documents are not delivered by the
360th day from the date of the related Closing Date, upon the Purchaser's
request, the Company shall repurchase the related Mortgage Loans at the
Repurchase Price in accordance with Section 3.03 hereof.
The Company shall pay 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 prepare,
in recordable form, all assignments of mortgage necessary to assign the Mortgage
Loans to Purchaser, or its designee. Company shall be responsible for recording
the assignments of mortgage.
Company shall provide an original or duplicate 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 forward to the Purchaser, or its designee, original
documents evidencing an assumption, modification, consolidation or extension of
any Mortgage Loan entered into in accordance with Section 4.01 or 6.01 within
one week of their execution; provided, however, that the Company shall provide
the Purchaser, or its designee, with 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, 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 no longer requires possession of the document, and provided that during
the time that any such documentation is held by the Company, 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 pursuant to this paragraph.
Section 2.08 QUALITY CONTROL PROCEDURES.
The Company must have 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
must be capable of evaluating and monitoring the overall quality of its loan
production and servicing activities. The program is 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 [RESERVED.]
Section 2.10 MODIFICATION OF OBLIGATIONS. Purchaser may, without any
notice to Company, extend, compromise, renew, release, change, modify, adjust or
alter, by operation of law or otherwise, any of the obligations of the
Mortgagors or other persons obligated under a Mortgage Loan without releasing or
otherwise affecting the obligations of Company under this Agreement, or with
respect to such Mortgage Loan, except to the extent Purchaser's extension,
compromise, release, change, modification, adjustment, or alteration affects
Company's ability to collect the Mortgage Loan or realize on the security of the
Mortgage, but then only to the extent such action has such effect.
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 Ohio 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;
(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,
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 origination or 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;
(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 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 and servicing practices used by the Company and any
prior originator or 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 origination and 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 Company, on behalf of an
investor, is entitled to collect, all such payments are in the possession of, or
under the control of, the Company, and there exist no deficiencies in connection
therewith for which customary arrangements for repayment thereof have not been
made. All escrow payments have been collected in full compliance with state and
federal law 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) Company is an approved seller/servicer of residential mortgage
loans for ▇▇▇▇▇▇ Mae, FHLMC and HUD, with such facilities, procedures and
personnel necessary for the sound servicing of such mortgage loans. The Company
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 sell mortgage loans to and service mortgage loans for ▇▇▇▇▇▇ ▇▇▇ and FHLMC
and no event has occurred which would make Company unable to comply with
eligibility requirements or which would require notification to either ▇▇▇▇▇▇
Mae or FHLMC;
(k) The Company does not believe, nor does it have any cause or reason
to believe, that it cannot perform each and every covenant 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;
(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 performing such services and that the
entire Servicing Fee shall be treated by the Company, for accounting and tax
purposes, as compensation for the servicing and administration of the Mortgage
Loans pursuant to this Agreement. 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 of its
parent, 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) The Company has not dealt with any broker, investment banker, agent
or other person that may be entitled to any commission or compensation in
connection with the sale of the Mortgage Loans;
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:
(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 Company 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 Company's servicing collection system. No payment under any Mortgage Loan is
delinquent as of the related Closing Date nor has any scheduled payment been
more than 1X30 days 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 Company 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;
(g) All buildings or other customarily insured improvements upon the
Mortgaged Property are insured by an insurer acceptable under the ▇▇▇▇▇▇ ▇▇▇ or
FHLMC Guides, against loss by fire, hazards of extended coverage and such other
hazards as are provided for in the ▇▇▇▇▇▇ Mae or FHLMC 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 ▇▇▇▇▇▇ ▇▇▇ or FHLMC 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 FHLMC 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, 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 classified as a (a) a "high cost" loan
under the Home Ownership and Equity Protection Act of 1994 or (b) a "high cost",
"threshold", or "predatory" loan under any other applicable state, federal or
local law; the Company maintains, and shall maintain, evidence of such
compliance as required by applicable law or regulation and shall make such
evidence available for inspection at the Company's office during normal business
hours upon reasonable advance notice;
(i) The Mortgage has not been satisfied, 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;
(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 ▇▇▇▇▇▇ ▇▇▇ and
FHLMC. 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;
(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, the Company 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 and supervising the
servicing of 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 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. The Company intends to relinquish all rights to possess,
control and monitor the Mortgage Loan, except for the purposes of servicing 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 FHLMC (including adjustable rate endorsements), issued by a title
insurer acceptable to ▇▇▇▇▇▇ Mae or FHLMC 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. 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;
(o) There are no mechanics' or similar liens or claims which have been
filed for work, labor or material (and no rights are outstanding that under law
could give rise to such liens) affecting the related Mortgaged Property which
are or may be liens prior to or equal 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 by or for the Company pursuant
to, and conforms with, the Company's underwriting matrix attached as 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 Company 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;
(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, approved by the Company, 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 FHLMC 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 FHLMC;
(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
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) The Mortgage Loan does not contain balloon or "graduated payment"
features; 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
Mortgage Note requires a monthly payment which is sufficient (a) during the
period prior to the first adjustment 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 Adjustment 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 provisions 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;
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(hh) In the event the Mortgage Loan had an LTV at origination greater than
80.00%, the excess of the principal balance of the Mortgage Loan over 75.0% of
the Appraised Value of the Mortgaged Property with respect to a Refinanced
Mortgage Loan, or the lesser of the Appraised Value or the purchase price of the
Mortgaged Property with respect to a purchase money Mortgage Loan was insured as
to payment defaults by a Primary Mortgage Insurance Policy issued by a Qualified
Insurer. 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.
Unless otherwise indicated on the related Mortgage Loan
Schedule, none of the Mortgage Loans are subject to "lender-paid" mortgage
insurance. 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. Coverage
with respect to each Lender Primary Mortgage Insurance Policy is that set forth
in the related Confirmation. All provisions of such Lender Primary Mortgage
Insurance Policy have been and are being complied with, such policy is in full
force and effect. 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. 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 Lender 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;
(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. 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. 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;
(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;
(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
Soldiers' and Sailors' Civil Relief Act of 1940;
(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
Company 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 five 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) The Mortgage Loan was originated by a mortgagee approved by the
Secretary of Housing and Urban Development pursuant to sections 203 and 211 of
the National Housing Act, a savings and loan association, a savings bank, a
commercial bank, credit union, insurance company or similar institution which is
supervised and examined by a federal or state authority;
(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, Company 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; and
(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.
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,
and such breach is not cured within sixty (60) days of the earlier of either
discovery by or notice to the Company of such breach, 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.
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 (i) the earlier of 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, and (iii) demand upon the Company by the Purchaser for
compliance with this Agreement.
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 convenants to the Company that,
as of the related Closing Date or as of such date specifically provided herein:
(a) The Purchaser is a corporation, dully organized validly existing
and in good standing under the laws of the State of Delaware and is qualified to
transact business in, is in good standing under the laws of, and possesses all
licenses necessary for the conduct of its business in, each state in which any
Mortgaged Property is located or is otherwise except or not required under
applicable law to effect such qualification or license;
(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, 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;
(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 and necessary 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 Seller 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 COMPANY TO ACT AS SERVICER.
The Company, as independent contract servicer, shall service and
administer the Mortgage Loans in accordance with 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 Company 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 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 and the Company.
Consistent with the terms of this Agreement and the related Term Sheet,
the Company 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 Company's reasonable and prudent determination such waiver,
modification, postponement or indulgence is not materially adverse to the
Purchaser, provided, however, that unless the Company has obtained the prior
written consent of the Purchaser, the Company 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 Company shall, on the Business Day immediately preceding
the Remittance Date in any month in which any such principal or interest payment
has been deferred, deposit in the Custodial Account from its own funds, in
accordance with Section 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 Company 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 Company 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 Company 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.
Notwithstanding anything in this Agreement to the contrary, if any
Mortgage Loan becomes subject to a Pass-Through Transfer, the Company (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 Company, 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 Company 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 Company shall not
take any such actions as to which it has been advised that an Adverse REMIC
Event could occur.
The Company shall not permit the creation of any "interests" (within
the meaning of Section 860G of the Code) in any REMIC. The Company 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
employ Accepted Servicing Practices, giving due consideration to the Purchaser's
reliance on the Company. 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 as servicer.
The Mortgage Loans may be subserviced by a Subservicer on behalf of the
Company provided that the Subservicer is an entity that engages in the business
of servicing loans, and in either case shall be 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 Subservicer to perform its obligations
hereunder and under the Subservicing Agreement, and in either case shall be a
FHLMC or ▇▇▇▇▇▇ ▇▇▇ 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 ▇▇▇▇▇▇ Mae or for seller/servicers imposed by ▇▇▇▇▇▇ ▇▇▇ or FHLMC, or
which would require notification to ▇▇▇▇▇▇ Mae or FHLMC. In addition, each
Subservicer 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 Subservicing Agreement. The Company may perform any of its servicing
responsibilities hereunder or may cause the Subservicer to perform any such
servicing responsibilities on its behalf, but the use by the Company of the
Subservicer shall not release the Company from any of its obligations hereunder
and the Company shall remain responsible hereunder for all acts and omissions of
the Subservicer as fully as if such acts and omissions were those of the
Company. The Company shall pay all fees and expenses of the Subservicer from its
own funds, and the Subservicer's fee shall not exceed the Servicing Fee. Company
shall notify Purchaser promptly in writing upon the appointment of any
Subservicer.
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 the Subservicer and arrange for any
servicing responsibilities to be performed by a successor subservicer meeting
the requirements in the preceding paragraph, provided, however, that nothing
contained herein shall be deemed to prevent or prohibit the Company, at the
Company's option, from electing to service the related Mortgage Loans itself. In
the event that the Company's responsibilities and duties under this Agreement
are terminated pursuant to Section 4.13, 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 Subservicer 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
Subservicer 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 the Subservicer or any
reference herein to actions taken through the Subservicer 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
alone were servicing and administering the Mortgage Loans. The Company shall be
entitled to enter into an agreement with the Subservicer for indemnification of
the Company by the Subservicer 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 Subservicer to perform any of its servicing duties, responsibilities
and obligations hereunder.
Any Subservicing Agreement and any other transactions or services
relating to the Mortgage Loans involving the Subservicer shall be deemed to be
between the Subservicer and Company alone, and the Purchaser shall have no
obligations, duties or liabilities with respect to the Subservicer including no
obligation, duty or liability of Purchaser to pay the Subservicer'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 Subservicer 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 will proceed diligently to
collect all payments due under each Mortgage Loan when the same shall become due
and payable and shall, to the extent such procedures shall be consistent with
this Agreement, 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 will 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 Company waive its right to any prepayment penalty
or premium without the prior written consent of Purchaser and Company 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 use its best efforts, consistent with the procedures
that the Company 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 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 Company 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
Company through Insurance Proceeds or Liquidation Proceeds from the related
Mortgaged Property, as contemplated in Section 4.05. Company shall obtain prior
approval of Purchaser as to repair or restoration expenses in excess of ten
thousand dollars ($10,000). The Company shall 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 it 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 the Company has
reasonable cause to believe that a Mortgaged Property is contaminated by
hazardous or toxic substances or wastes, or if the Purchaser otherwise requests
an environmental inspection or review of such Mortgaged Property, such an
inspection or review is to be conducted by a qualified inspector at the
Purchaser's expense. Upon completion of the inspection, the Company shall
promptly provide the Purchaser with a written report of the environmental
inspection. After reviewing the environmental inspection report, the Purchaser
shall determine how the Company shall proceed with respect to the Mortgaged
Property.
Notwithstanding anything to the contrary contained herein, the
Purchaser may, at the Purchaser's sole option, terminate the Company as servicer
of any Mortgage Loan which becomes ninety (90) days or greater delinquent in
payment of a scheduled Monthly Payment, without payment of any termination fee
with respect thereto, provided that the Company shall on the date said
termination takes effect be reimbursed for any unreimbursed advances of the
Company's funds made pursuant to Section 5.03 and any unreimbursed Servicing
Advances and Servicing Fees in each case relating to the Mortgage Loan
underlying such delinquent Mortgage Loan notwithstanding anything to the
contrary set forth in Section 4.05. In the event of any such termination, the
provisions of Section 11.01 hereof shall apply to said termination and the
transfer of servicing responsibilities with respect to such delinquent Mortgage
Loan to the Purchaser or its designee.
In the event that a Mortgage Loan becomes part of a REMIC, and becomes
REO Property, such property shall be disposed of by the Company, 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 Company 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. Company shall 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 either itself or through an
agent selected by Company, 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 perform the tax withholding and reporting
related to Sections 1445 and 6050J of the Code.
Section 4.04 ESTABLISHMENT OF CUSTODIAL ACCOUNTS; DEPOSITS IN CUSTODIAL
ACCOUNTS.
The Company shall segregate and hold all funds collected and received
pursuant to each Mortgage Loan separate and apart from any of its own funds and
general assets and shall establish and maintain one or more Custodial Accounts.
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 up to the FDIC 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 Company 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 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 Company in connection
with any REO Property pursuant to Section 4.13 and in connection therewith, the
Company shall 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;
(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 Company pursuant to
Section 4.10 in connection with the deductible clause in any blanket hazard
insurance policy, such deposit shall be made from the Company'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 Company 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
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 Company 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 Company'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 Company'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 Company'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
Company'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;
(iv) to pay to itself as part of its servicing compensation (a) any
interest earned on funds in the Custodial Account (all such interest to be
withdrawn monthly not later than each Remittance Date), and (b) the Servicing
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 Company; and
(vi) 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 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 must be invested in Permitted Investments. Funds deposited in the
Escrow Account may be drawn on by the Company 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 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.
The Company shall 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 retain any interest paid on funds deposited in the
Escrow Account by the depository institution other than interest on escrowed
funds required by law to be paid to the Mortgagor and, to the extent required by
law, the Company shall pay interest on escrowed funds to the Mortgagor
notwithstanding that the Escrow Account is non-interest bearing or that interest
paid thereon is insufficient for such purposes. 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 Company 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 Company for any Servicing Advance made by Company
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 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; and
(viii) to pay to the Mortgagors or other parties Insurance Proceeds
deposited in accordance with Section 4.06.
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 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 Company 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 determine that any such
payments are made by the Mortgagor at the time they first become due. The
Company assumes full responsibility for the timely payment of all such bills and
shall effect timely payments of all such bills irrespective of the Mortgagor's
faithful performance in the payment of same or the making of the Escrow Payments
and shall make advances from its own funds to effect such payments.
The Company will 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 with the approval of
Purchaser, or as required by applicable law or regulation. The Company will not
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 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 Company would
have been covered thereunder. In connection with any assumption or substitution
agreement entered into or to be entered into pursuant to Section 6.01, the
Company shall promptly notify the insurer under the related 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 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 agrees to
prepare and present, on behalf of itself 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 Company
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.
Section 4.09 TRANSFER OF ACCOUNTS.
The Company 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 to be maintained for each Mortgage Loan fire
and hazard insurance with extended coverage as is acceptable to ▇▇▇▇▇▇ Mae or
FHLMC 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 ▇▇▇▇▇▇ ▇▇▇ or FHLMC, 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 Company 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 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 immediately force place the required
flood insurance on the Mortgagor's behalf. The Company shall 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 Company 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 Company 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.
Section 4.11 MAINTENANCE OF MORTGAGE IMPAIRMENT INSURANCE POLICY.
In the event that the Company shall obtain and maintain a blanket
policy issued by an insurer acceptable to ▇▇▇▇▇▇ Mae or FHLMC 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, 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 agrees to prepare and present, on behalf of the Purchaser, claims under
any such blanket policy in a timely fashion in accordance with the terms of such
policy. Upon request of the Purchaser, the Company shall cause to be delivered
to the Purchaser a certified true copy of such policy and shall use its best
efforts to obtain a statement from the insurer thereunder that such policy shall
in no event be terminated or materially modified without thirty (30) days' prior
written notice to the Purchaser.
Section 4.12 FIDELITY BOND, ERRORS AND OMISSIONS INSURANCE.
The Company shall maintain, at its own expense, a blanket fidelity bond
and an errors and omissions insurance policy, with broad coverage with
responsible companies on all officers, employees or other persons acting in any
capacity with regard to the Mortgage Loan 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 Company
against losses, including forgery, theft, embezzlement and fraud of such
persons. The errors and omissions insurance shall protect and insure the Company
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
Company 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 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 ▇▇▇▇▇▇ ▇▇▇ in the ▇▇▇▇▇▇ Mae Guides. Upon
request by the Purchaser, the Company shall 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 shall 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, Company shall 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.
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
Company 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 notify the Purchaser in accordance with the ▇▇▇▇▇▇
▇▇▇ 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 Company 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
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, either itself or through an agent selected by the
Company, and in accordance with the ▇▇▇▇▇▇ Mae 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 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 make or cause to be made a written report of
each such inspection. Such reports shall be retained in the Mortgage File and
copies thereof shall be forwarded by the Company to the Purchaser.
The Company shall use its best efforts to dispose of the REO Property
as soon as possible and shall sell such REO Property in any event within one
year after title has been taken to such REO Property, unless the Company
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 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 ▇▇▇▇▇▇ ▇▇▇ Guides. The disposition of REO Property shall be
carried out by the Company at such price, and upon such terms and conditions, as
the Company deems to be in the best interests of the Purchaser (subject to the
above conditions) only with the prior written consent of the Purchaser. Company
shall provide monthly reports to Purchaser in reference to the status of the
marketing of the REO Properties.
Notwithstanding anything to the contrary contained herein, the
Purchaser may, at the Purchaser's sole option, terminate the Company as servicer
of any such REO Property without payment of any termination fee with respect
thereto, provided that the Company shall on the date said termination takes
effect be reimbursed for any unreimbursed advances of the Company's funds made
pursuant to Section 5.03 and any unreimbursed Servicing Advances and Servicing
Fees in each case relating to the Mortgage Loan underlying such REO Property
notwithstanding anything to the contrary set forth in Section 4.05. In the event
of any such termination, the provisions of Section 11.01 hereof shall apply to
said termination and the transfer of servicing responsibilities with respect to
such REO Property to the Purchaser or its designee. Within five Business Days of
any such termination, the Company shall, if necessary convey such property to
the Purchaser and shall further provide the Purchaser with the following
information regarding the subject REO Property: the related drive by appraisal
or brokers price opinion, and copies of any related Mortgage Impairment
Insurance Policy claims. In addition, within five Business Days, the Company
shall provide the Purchaser with the following information regarding the subject
REO Property: the related trustee's deed upon sale and copies of any related
hazard insurance claims, or repair bids.
Section 4.14 NOTIFICATION OF MATURITY DATE.
With respect to each Mortgage Loan, the Company 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 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 Company 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 Company'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.
With respect to any remittance received by the Purchaser after the
Remittance Date, the Company shall pay to the Purchaser interest on any such
late payment at an annual rate equal to the Prime Rate, adjusted as of the date
of each change, plus three (3) 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 Company of any such interest shall not be
deemed an extension of time for payment or a waiver of any Event of Default by
the Company. On each Remittance Date, the Company shall 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 furnish to Purchaser an individual loan accounting
report, as of the last Business Day of each month, in the Company'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 Company
during the prior distribution period;
(iv) the aggregate Stated Principal Balance of the Mortgage Loans;
(v) the aggregate of any expenses reimbursed to the Company 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 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 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.
In addition, not more than sixty (60) days after the end of each
calendar year, the Company shall furnish to each Person who was a Purchaser at
any time during such calendar year an annual statement in accordance with the
requirements of applicable federal income tax law as to the aggregate of
remittances for the applicable portion of such year.
Section 5.03 MONTHLY ADVANCES BY THE COMPANY.
Not later than the close of business on the Business Day preceding each
Remittance Date, the Company shall deposit in the Custodial Account an amount
equal to all payments not previously advanced by the Company, 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 Company's obligation to make such Monthly Advances as to any
Mortgage Loan will continue through the last Monthly Payment due prior to the
payment in full of the Mortgage Loan, or through the 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 Company deems such advance to be
nonrecoverable. In such event, the Company shall deliver to the Purchaser an
Officer's Certificate of the Company to the effect that an officer of the
Company has reviewed the related Mortgage File and has made the reasonable
determination that any additional advances are nonrecoverable.
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 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 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 will, to the extent it has knowledge of any conveyance or
prospective conveyance by any Mortgagor of the Mortgaged Property (whether by
absolute conveyance or by contract of sale, and whether or not the Mortgagor
remains or is to remain liable under the Mortgage Note and/or the Mortgage),
exercise its rights to accelerate the maturity of such Mortgage Loan under any
"due-on-sale" clause to the extent permitted by law; provided, however, that the
Company shall not exercise any such rights if prohibited by law or the terms of
the Mortgage Note from doing so or if the exercise of such rights would impair
or threaten to impair any recovery under the related Primary Mortgage Insurance
Policy or Lender Primary Mortgage Insurance Policy, if any. If the Company
reasonably believes it is unable under applicable law to enforce such
"due-on-sale" clause, the Company, with the approval of the Purchaser, will
enter into an assumption agreement with the person to whom the Mortgaged
Property has been conveyed or is proposed to be conveyed, pursuant to which such
person becomes liable under the Mortgage Note and, to the extent permitted by
applicable state law, the Mortgagor remains liable thereon. Where an assumption
is allowed pursuant to this Section 6.01, the Company, 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.
In connection with any such assumption or substitution of liability,
the Company shall follow the underwriting practices and procedures of the
Company. 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 Company diligently shall, to the extent
permitted by the Mortgage or the Mortgage Note and by applicable law, accelerate
the maturity of the Mortgage Loan. The Company shall 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 Company 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 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
Company of a notification that payment in full will be escrowed in a manner
customary for such purposes, the Company will immediately notify the Purchaser
by a certification, which certification shall include a statement to the effect
that all amounts received or to be received in connection with such payment
which are required to be deposited in the Custodial Account pursuant to Section
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 Company, the
related Mortgage Loan Documents and, upon its receipt of such documents, the
Company shall 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 Company 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.
In the event the Company 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, 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 maintain the Fidelity Bond and errors and omissions insurance insuring the
Company against any loss it may sustain with respect to any Mortgage Loan not
satisfied in accordance with the procedures set forth herein.
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 Company 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 Company. Such servicing receipt shall
obligate the Company to return the related Mortgage documents to the Purchaser
when the need therefor by the Company 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 Company has delivered to the Purchaser a
certificate of a Servicing Officer certifying as to the name and address of the
Person to which such Mortgage File or such document was delivered and the
purpose or purposes of such delivery. Upon receipt of a certificate of a
Servicing Officer stating that such Mortgage Loan was liquidated, the servicing
receipt shall be released by the Purchaser to the Company.
Section 6.03 SERVICING COMPENSATION.
As compensation for its services hereunder, the Company shall be
entitled to withdraw from the Custodial Account (to the extent of interest
payments collected on the Mortgage Loans) or to retain from interest payments
collected on the Mortgage Loans, the amounts provided for as the Company's
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 retained by 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 required to pay all expenses incurred by it in connection with
its servicing activities hereunder and shall not be entitled to reimbursement
therefor except as specifically provided for.
Section 6.04 ANNUAL STATEMENT AS TO COMPLIANCE.
The Company will deliver to the Purchaser not later than 90 days
following the end of each fiscal year of the Company beginning in March 2003, an
Officers' Certificate stating, as to each signatory thereof, that (i) a review
of the activities of the Company during the preceding calendar year and of
performance under this Agreement has been made under such officers' supervision,
and (ii) to the best of such officers' knowledge, based on such review, the
Company has fulfilled all of its obligations under this Agreement throughout
such year, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to such officers and the nature
and status of cure provisions thereof. Copies of such statement shall be
provided by the Company to the Purchaser upon request.
Section 6.05 ANNUAL INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS' SERVICING
REPORT.
Within ninety (90) days of Company's fiscal year end beginning in March
2003 the Company at its expense shall cause a firm of independent public
accountants which is a member of the American Institute of Certified Public
Accountants to furnish a statement to the Purchaser to the effect that such firm
has examined certain documents and records relating to the Company's servicing
of mortgage loans of the same type as the Mortgage Loans pursuant to 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 Company'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. Copies of such
statement shall be provided by the Company to the Purchaser. In addition, on an
annual basis, Company shall provided Purchaser with copies of its audited
financial statements.
Section 6.06 PURCHASER'S RIGHT TO EXAMINE COMPANY RECORDS.
The Purchaser shall have the right to examine and audit upon reasonable
notice to the Company, during business hours or at such other times as might be
reasonable under applicable circumstances, any and all of the books, records,
documentation or other information of the Company, or held by another for the
Company or on its behalf or otherwise, which relates to the performance or
observance by the Company of the terms, covenants or conditions of this
Agreement.
The Company shall provide to the Purchaser and any supervisory agents
or examiners representing a state or federal governmental agency having
jurisdiction over the Purchaser, including but not limited to OTS, FDIC and
other similar entities, access to any documentation regarding the Mortgage Loans
in the possession of the Company 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 Company, and in
accordance with the federal government, FDIC, OTS, or any other similar
regulations.
ARTICLE VII
REPORTS TO BE PREPARED BY SERVICER
Section 7.01 COMPANY SHALL PROVIDE INFORMATION AS REASONABLY REQUIRED.
The Company shall 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 Company 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 Company under
this Agreement. The Company agrees to execute and deliver all such instruments
and take all such action as the Purchaser, from time to time, may reasonably
request in order to effectuate the 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 Company
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 furnish promptly to
the Purchaser or a prospective purchaser copies of the statements specified
above.
The Company shall 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 Company's servicing facilities for the purpose of satisfying such
prospective purchaser that the Company has the ability to service the Mortgage
Loans as provided in this Agreement.
ARTICLE VIII
THE 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
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 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 follow any 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
Company 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. The provisions of this Section 8.01 shall survive termination of
this Agreement.
Section 8.02 MERGER OR CONSOLIDATION OF THE COMPANY.
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.
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, SAIF and/or BIF, and which is a
HUD-approved mortgagee whose primary business is in origination and servicing of
first lien mortgage loans, and (iii) who is a ▇▇▇▇▇▇ ▇▇▇ or FHLMC 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 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.
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 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 NO TRANSFER OF SERVICING.
With respect to the retention of the Company to service the Mortgage
Loans hereunder, the Company acknowledges that the Purchaser has acted in
reliance upon the Company's independent status, the adequacy of its servicing
facilities, plan, personnel, records and procedures, its integrity, reputation
and financial standing and the continuance thereof. Without in any way limiting
the generality of this Section, the Company shall not either assign this
Agreement or the servicing hereunder or delegate its rights or duties hereunder
or any portion thereof, or sell or otherwise dispose of all or substantially all
of its property or assets, without the prior written approval of the Purchaser,
which consent shall be granted or withheld in the Purchaser's sole discretion.
Without in any way limiting the generality of this Section 8.05, in the
event that the Company either shall assign this Agreement or the servicing
responsibilities hereunder 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, which consent shall not be unreasonable
withheld, 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.
ARTICLE IX
DEFAULT
Section 9.01 EVENTS OF DEFAULT.
In case one or more of the following Events of Default by the Company
shall occur and be continuing, that is to say:
(i) any failure by the Company to remit to the Purchaser any payment
required to be made under the terms of this Agreement which continues unremedied
for a period of two (2) Business Days; or
(ii) 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
(iii) a decree or order of a court or agency or supervisory authority
having jurisdiction for the appointment of a conservator or receiver or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshalling of
assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Company and such
decree or order shall have remained in force undischarged or unstayed for a
period of sixty days; or
(iv) 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
(v) 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; or
(vi) Company ceases to be approved by either ▇▇▇▇▇▇ ▇▇▇ or FHLMC as a
mortgage loan seller or servicer for more than thirty days; or
(vii) 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 the servicing responsibilities
hereunder or to delegate its duties hereunder or any portion thereof; or
(viii) the Company 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 Company's ability to
perform its obligations hereunder; or
(ix) the Company fails to meet the eligibility criteria set forth in
the last sentence of Section 8.02.
Then, and in each and every such case, so long as an Event of Default
shall not have been remedied, the Purchaser, by notice in writing to the Company
(except in the case of an Event of Default under clauses (iii), (iv) or (v)
above, in which case, automatically and without notice) Company may, in addition
to whatever rights the Purchaser may have under Sections 3.03 and 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. On or after the receipt by the Company of
such written notice (or, in the case of an Event of Default under clauses (iii),
(iv) or (v) above, in which case, automatically and without notice), all
authority and power of the Company under this Agreement, whether with respect to
the Mortgage Loans or otherwise, shall pass to and be vested in the successor
appointed pursuant to Section 11.01. 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 Mortgage Files, and do or
accomplish all other acts or things necessary or appropriate to effect the
purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Mortgage Loans and related documents, or
otherwise, at the Company's sole expense. The Company agrees to cooperate with
the Purchaser and such successor in effecting the termination of the Company's
responsibilities and rights hereunder, including, without limitation, the
transfer to such successor for administration by it of all cash amounts which
shall at the time be credited by the Company to the Custodial Account or Escrow
Account or thereafter received with respect to the Mortgage Loans or any REO
Property.
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.
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)
termination with cause under the terms of this Agreement.
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 4.13, 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 4.13, 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 deliver to the successor the funds in the
Custodial Account and the Escrow Account and the Mortgage Files and related
documents and statements held by it hereunder and the Company 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.
Upon a successor's acceptance of appointment as such, the Company shall
notify by mail the Purchaser of such appointment.
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 Company'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:
Fifth Third Mortgage Company
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
Fifth Third Mortgage Company
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
Fifth Third Mortgage Company
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
(ii) if to the Purchaser:
EMC Mortgage Corporation
Mac ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Bear ▇▇▇▇▇▇▇ Mortgage Capital Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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.
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.
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, provided such information is identified as confidential
non-public information.
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 Company'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,
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. 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. In no event shall there be more than four (4)
Persons with the status of "Purchaser" per pool of Mortgage Loans under
this Agreement.
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.
From and after the Closing Date, the Company agrees that it will not
take any action or permit or cause any action to be taken by any of its agents
or affiliates, to personally, by telephone or mail, solicit the borrower or
obligor under any Mortgage Loan to refinance the Mortgage Loan, in whole or in
part, without the prior written consent of the Purchaser. Notwithstanding the
foregoing, it is understood and agreed that (i) promotions undertaken by the
Company or any affiliate of the Company which are directed to the general public
at large, or segments thereof, provided that no segment shall consist primarily
of the Mortgage Loans, including, without limitation, mass mailing based on
commercially acquired mailing lists, newspaper, radio and television
advertisements and (ii) responses to unsolicited requests or inquiries made by a
Mortgagor or an agent of a Mortgagor, shall not constitute solicitation under
this Section 11.16. This Section 11.16 shall not be deemed to preclude the
Company or any of its affiliates from soliciting any Mortgagor for any other
financial products or services. The Company shall use its best efforts to
prevent the sale of the name of any Mortgagor to any Person who is not affiliate
of the Company. This Section 11.16 shall also not be deemed to preclude the
Company or any of its affiliates from soliciting any Mortgagor based upon
relationships or data other than with respect to the related Mortgage Loan and
any of the related Mortgage Loan Documents.
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 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.
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"), which in no event shall there be more
than four (4) Reconstitutions per pool of Mortgage Loans, 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 among
the Purchaser, the Company, and any servicer 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 (including updating or "bringing down" any representations or
warranties with respect to the Mortgage Loans if such Reconstitution Date is in
the same calendar month as the related Closing Date). In connection with each
Pass-Through Transfer, the Company agrees to provide reasonable and customary
indemnification to the Purchaser and its affilates for disclosure contained in
any offering document relating to the Company or its affilates, the Mortgage
Loans and the underwriting standards of the Mortgage Loans. The Purchaser shall
be responsible for the costs relating to the delivery of such information.
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.
EMC MORTGAGE CORPORATION
Purchaser
By:________________________
Name:
Title:
FIFTH THIRD MORTGAGE COMPANY
Company
By: _______________________
Name:
Title:
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, or an opinion of title, if applicable.
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.
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).
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.
EXHIBIT B
CUSTODIAL ACCOUNT LETTER AGREEMENT
______________, 2001
To: [_______________________]
(the "Depository")
As "Company" under the Purchase, Warranties and Servicing Agreement,
dated as of [_____________________] 1, 2001 Adjustable Rate Mortgage Loans (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 will be invested in Permitted Investments as defined in the Agreement.
[___________________________]
By:____________________________
Name:__________________________
Title:_________________________
EXHIBIT C
ESCROW ACCOUNT LETTER AGREEMENT
_____________, 2001
To: [_______________________]
(the "Depository")
As "Company" under the Purchase Warranties and Servicing Agreement,
dated as of [____________________]1, 2001 Adjustable Rate Mortgage Loans (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 will be invested in Permitted Investments as defined in the Agreement.
[___________________________]
By:______________________________
Name:____________________________
Title:___________________________
EXHIBIT D
FORM OF ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
This is a Purchase, Assignment, Assumption and Recognition Agreement
(this "PAAR Agreement") made as of __________, 200__, among EMC Mortgage
Corporation (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;
(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.
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:
(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;
(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;
(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
(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 Section 3.01 and Section 3.02 of the Purchase
Agreement to be untrue in any material respect; provided, however, that if the
date hereof is not in the same calendar month as the Closing Date, the Company
makes no statements with regard to the representations and warranties made by
the Company in Section 3.02 of the Purchase Agreement.
(1) 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.
(a) 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,
EMC Mortgage Corporation
Mac ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
-------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ___________
Telecopier No.: (212) 272-____
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.
(b) [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: ________________________
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:
"Company ceases to be approved by either ▇▇▇▇▇▇ ▇▇▇ or FHLMC as a
mortgage loan seller or servicer for more than thirty days, or the Company fails
to meet the servicer eligibility requirements of the Supplemental PMI Insurer;
or"]
IN WITNESS WHEREOF, the parties hereto have executed this PAAR
Agreement as of the day and year first above written.
EMC MORTGAGE CORPORATION
Assignor
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
---------------------------------
Assignee
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
---------------------------------
Company
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
ATTACHMENT 1
ASSIGNED LOAN SCHEDULE
ATTACHMENT 2
PURCHASE, WARRANTIES AND SERVICING AGREEMENT
(ii)
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 have been returned and received by
the Purchaser.
Dated:________________
By:________________________________
Signature
________________________________
Title
(b) EXHIBIT H
COMPANY'S UNDERWRITING MATRIX
EXHIBIT I
TERM SHEET
This TERM SHEET (the "Term Sheet") dated _____________, between Fifth
Third Mortgage Company, an Ohio corporation, located at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ (the "Company") and EMC Mortgage Corporation, a
Delaware corporation, located at Mac ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (the "Purchaser") is made pursuant to the terms
and conditions of that certain Purchase, Warranties and Servicing Agreement (the
"Agreement") dated as of September 1, 2002, 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: [None].
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: [None]. [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.
FIFTH THIRD MORTGAGE COMPANY
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
EMC MORTGAGE CORPORATION
By:
-----------------------------------------
Name:
----------------------------
Title:
------------------------------------
SCHEDULE I
MORTGAGE LOAN SCHEDULE
EXHIBIT H-4
SERVICING AGREEMENT
GMAC
THIS IS A SERVICING AGREEMENT, dated as of November 1, 2004, and is
executed between Structured Asset Mortgage Investments II Inc. (the "Owner") and
GMAC Mortgage Corporation (the "Servicer").
W I T N E S S E T H :
WHEREAS, the Owner is the owner of the Mortgage Loans;
WHEREAS, the Owner and the Servicer wish to prescribe the permanent
management, servicing and control of the Mortgage Loans;
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth, and for other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the Owner and the Servicer 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) that are in
accordance with the ▇▇▇▇▇▇ Mae Guide.
ADJUSTMENT DATE: As to each ARM Loan, the date on which the Mortgage
Interest Rate is adjusted in accordance with the terms of the related Mortgage
Note.
AGREEMENT: This Servicing Agreement including all exhibits hereto,
amendments hereof and supplements hereto.
ARM LOANS: First lien, conventional, 1-4 family residential Mortgage
Loans with interest rates which adjust from time to time in accordance with the
related Index and are subject to Periodic Rate Caps and Lifetime Rate Caps and
which do not permit conversion to fixed interest rates.
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 States of New York, Iowa or the Commonwealth of
Pennsylvania, or (iii) a day on which banks in the States of New York, Iowa or
Pennsylvania are authorized or obligated by law or executive order to be closed.
CODE: The Internal Revenue Code of 1986, as it may be amended from time
to time, or any successor statute thereto, and applicable U.S. Department of the
Treasury regulations issued pursuant thereto.
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.
CUSTODIAL ACCOUNT: The separate demand account or accounts created and
maintained pursuant to Section 4.04 which shall be entitled "GMAC Mortgage
Corporation Custodial Account in trust for [Owner], Owner of Whole Loan
Mortgages and various Mortgagors" and shall be established at a Qualified
Depository, each of which accounts shall in no event contain funds in excess of
the FDIC insurance limits.
CUSTODIAN: ▇▇▇▇▇ Fargo Bank, N.A., or such other custodian as Owner
shall designate.
CUT-OFF DATE: As identified on the related Confirmation.
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
Remittance Date.
DUE DATE: Each day on which payments of principal and interest are
required to be paid in accordance with the terms of the related Mortgage Note,
exclusive of any days of grace.
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.
EFFECTIVE DATE: As identified on the related Confirmation.
ESCROW ACCOUNT: The separate trust account or accounts created and
maintained pursuant to Section 4.06 which shall be entitled "GMAC Mortgage
Corporation Escrow Account, in trust for [Owner], Owner of Whole Loan Mortgages
and various Mortgagors" and shall be established at a Qualified Depository, each
of which accounts shall in no event contain funds in excess of the FDIC
insurance limits.
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.
▇▇▇▇▇▇ ▇▇▇: ▇▇▇▇▇▇ ▇▇▇, or any successor thereto.
▇▇▇▇▇▇ MAE GUIDE: The ▇▇▇▇▇▇ ▇▇▇ Selling Guide and the ▇▇▇▇▇▇ Mae
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, as amended from time to time.
▇▇▇▇▇▇▇ MAC: ▇▇▇▇▇▇▇ Mac, or any successor thereto.
▇▇▇▇▇▇▇ MAC GUIDE: The ▇▇▇▇▇▇▇ Mac Selling Guide and the ▇▇▇▇▇▇▇ Mac
Servicing Guide and all amendments or additions thereto.
FULL PRINCIPAL PREPAYMENT: A Principal Prepayment made by a Mortgagor
of the entire principal balance of a Mortgage Loan.
GAAP: Generally accepted accounting procedures, consistently applied.
HUD: The United States Department of Housing and Urban Development or
any successor.
INDEX: With respect to each ARM Loan, on the related Adjustment Date,
the index used to determine the Mortgage Interest Rate on each such ARM Loan.
INSURANCE PROCEEDS: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged Property.
LIFETIME RATE CAP: With respect to each ARM Loan, the maximum Mortgage
Interest Rate over the term of such Mortgage Loan, as specified in the related
Mortgage Note.
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, other than amounts
received following the acquisition of an REO Property pursuant to Section 4.13.
MARGIN: With respect to each ARM 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.
MONTHLY ADVANCE: The aggregate of the advances made by the Servicer on
any Remittance Date pursuant to Section 5.03.
MONTHLY PAYMENT: With respect to each Mortgage Loan, the scheduled
monthly payment of principal and interest thereon which is payable by the
related 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 INTEREST RATE: The annual rate at which interest accrues on
any Mortgage Loan in accordance with the provisions of the related Mortgage
Note, and in the case of an ARM Loan, as adjusted from time to time on each
Adjustment Date for such Mortgage Loan to equal the Index for such Mortgage Loan
plus the Margin for such Mortgage Loan, and subject to the limitations on such
interest rate imposed by the Periodic Rate Cap and the Lifetime Rate Cap.
MORTGAGE LOAN: An individual Mortgage Loan described herein, and as
further identified on the Mortgage Loan Schedule, which Mortgage Loan includes
without limitation the Mortgage Loan Documents, the Monthly Payments, Principal
Prepayments, Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds,
REO Disposition Proceeds, and all other rights, benefits, proceeds and
obligations arising from or in connection with such Mortgage Loan.
MORTGAGE LOAN DOCUMENTS: The original mortgage loan legal documents
held by the Custodian.
MORTGAGE LOAN REMITTANCE RATE: With respect to each Mortgage Loan, the
annual rate of interest remitted to the Owner, which shall be equal to the
related Mortgage Interest Rate minus the Servicing Fee Rate.
MORTGAGE LOAN SCHEDULE: The schedule of Mortgage Loans attached hereto
as EXHIBIT A, such schedule being acceptable to the Owner and the Servicer.
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.
MORTGAGOR: The obligor on a Mortgage Note. The Mortgagor is a natural
person who is a party to the Mortgage Note and Mortgage in an individual
capacity.
NONRECOVERABLE ADVANCE: Any advance previously made by the Servicer
pursuant to Section 5.03 or any expenses incurred pursuant to Section 4.08
which, in the good faith judgment of the Servicer, may not be ultimately
recoverable by the Servicer from Liquidation Proceeds. The determination by the
Servicer that is has made a Nonrecoverable Advance, shall be evidenced by an
Officer's Certificate of the Servicer delivered to the Owner and detailing the
reasons for such determination.
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 Servicer, and delivered to the Owner
as required by this Agreement.
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 Owner.
OTS: Office of Thrift Supervision, its successors and assigns.
OWNER: EMC Mortgage Corporation, its successors in interest and
assigns.
PARTIAL PRINCIPAL PREPAYMENT: A Principal Prepayment by a Mortgagor of
a partial principal balance of a Mortgage Loan.
PASS-THROUGH TRANSFER: The sale or transfer of same or all of the
Mortgage Loans to a trust as part of a publicly issued or privately placed,
rated or unrated Mortgage pass-through transaction.
PERIODIC RATE CAP: With respect to each ARM Loan, the maximum increase
or decrease in the Mortgage Interest Rate on any Adjustment Date.
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; provided that obligations
of ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ Mae shall be Permitted Investments only if, at
the time of investment, they are rated in one of the two highest rating
categories by Standard & Poor's Rating Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies Inc., ▇▇▇▇▇'▇ Investors Service, Inc. and Fitch
Ratings;
(ii) (a) demand or time deposits, federal funds or bankers' acceptances
issued by any depository institution 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 Standard &
Poor's Rating Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies Inc.,
▇▇▇▇▇'▇ Investors Service, Inc. and Fitch Ratings and (b) any other
demand or time deposit or certificate of deposit that is fully insured
by the Federal Deposit Insurance Corporation;
(iii) repurchase obligations with respect to (a) any security described
in clause (i) above or (b) any other security issued or guaranteed by
an 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, in either case entered into with a depository
institution or trust company (acting as principal) described in clause
(ii)(a) above;
(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 Standard & Poor's Rating Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies Inc., ▇▇▇▇▇'▇ Investors Service, Inc. and Fitch
Ratings at the time of such investment 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 securities issued by such corporation and held as
Permitted Investments to exceed 10% of the aggregate outstanding
principal balances and amounts of all the Permitted Investments;
(v) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations payable on demand or on a
specified date not more than one year after the date of issuance
thereof) which are rated in one of the two highest rating categories by
Standard & Poor's Rating Services, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies Inc., ▇▇▇▇▇'▇ Investors Service, Inc. and Fitch Ratings at
the time of such investment;
(vi) any other demand, money market or time deposit, obligation,
security or investment as may be acceptable to each of Standard &
Poor's Rating Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.,
▇▇▇▇▇'▇ Investors Service, Inc. and Fitch Ratings; and
(vii) any money market funds the collateral of which consists of
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 (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 Standard & Poor's Rating Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies Inc., ▇▇▇▇▇'▇ Investors Service, Inc. and Fitch
Ratings;
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 obligations underlying such instrument or
if such security provides for payment of both principal and interest with a
yield to maturity in excess of 120% of the yield to maturity at 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: The sum of the differences between
interest actually received in a Due Period as a result of a full or partial
prepayment or other unscheduled receipt of principal (including as a result of a
liquidation) on each Mortgage Loan as to which such a payment is received and
the interest portion of the Monthly Payment of such Mortgage Loan scheduled to
be due at the applicable Mortgage Loan Remittance Rate; provided, however,
Prepayment Interest Shortfalls shall not include Full Principal Prepayments
received on or before the 15th day of the month in which a Remittance Date
occurs which are remitted by the Servicer to the Owner on such Remittance Date.
PRIMARY MORTGAGE INSURANCE POLICY: Each primary policy of mortgage
insurance, or any replacement policy therefor obtained by the Servicer pursuant
to Section 4.08.
PRIME RATE: The prime rate of U.S. money center banks as published from
time to time in THE WALL STREET JOURNAL.
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.
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, which appraiser and the appraisal
made by such appraiser both satisfy the requirements of Title XI of FIRREA and
the regulations promulgated thereunder, all as in effect on the date the
Mortgage Loan was originated.
QUALIFIED DEPOSITORY: (a) The Custodian or (b) a depository, the
accounts of which are insured by the FDIC through the BIF or the SAIF and the
short term debt ratings and the long term deposit ratings of which are rated in
one of the two highest rating categories by Standard & Poor's Ratings Services,
a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies Inc., ▇▇▇▇▇'▇ Investors Service, Inc.
and Fitch Ratings.
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 ▇▇▇▇▇▇
▇▇▇ and ▇▇▇▇▇▇▇ Mac.
REMIC: A "real estate mortgage investment conduit" within the meaning
of Section 860D of the Code.
REMIC PROVISIONS: The provisions of the Federal income tax law relating
to a REMIC, which appear at Section 860A through 860G of Subchapter M of Chapter
1, Subtitle A of the Code, and related provisions, and regulations, rulings or
pronouncements promulgated thereunder, as the foregoing may be in effect from
time to time.
REMITTANCE DATE: The 18th day of any month, or if such 18th day is not
a Business Day, the first Business Day immediately preceding such 18th 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 Owner as described in Section 4.13.
SAIF: The Savings Association Insurance Fund, or any successor thereto.
SERVICER: GMAC Mortgage Corporation, or any of its successors in
interest or any successor under this Agreement appointed as herein provided.
SERVICING ADVANCES: All customary, reasonable and necessary "out of
pocket" costs and expenses (including reasonable attorneys' fees and
disbursements) incurred prior to, on and subsequent to the Effective Date in the
performance by the Servicer of its servicing obligations relating to each
Mortgage Loan, 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), (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 and
(e) compliance with the obligations under Section 4.08.
SERVICING FEE: With respect to each Mortgage Loan, the amount of the
annual fee the Owner shall pay to the Servicer, which shall, for a period of one
full month, be equal to one-twelfth of the product of (a) the applicable
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 Owner to pay the Servicing Fee
is limited to, and the Servicing Fee is payable solely from, the interest
portion (not including recoveries of interest from Liquidation Proceeds or
otherwise) of such Monthly Payment collected by the Servicer, or as otherwise
provided under Section 4.05.
SERVICING FEE RATE: The Servicing Fee Rate shall be a rate per annum
equal to 0.25%.
SERVICING FILE: The documents, records and other items pertaining to a
particular Mortgage Loan, and any additional documents relating to such Mortgage
Loan as are in, or as may from time to time come into, the Servicer's
possession.
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
Owner 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 after giving
effect to payments of principal due, whether or not received, minus (ii) all
amounts previously distributed to the Owner with respect to the Mortgage Loan
representing payments or recoveries of principal or advances in lieu thereof.
WHOLE LOAN TRANSFER: The sale or transfer of some or all of the
ownership interest in the Mortgage Loans by the Owner to one or more third
parties in whole loan or participation format, which third party may be ▇▇▇▇▇▇
▇▇▇ or ▇▇▇▇▇▇▇ Mac.
ARTICLE II
SERVICING OF MORTGAGE LOANS;
POSSESSION OF SERVICING FILES;
BOOKS AND RECORDS;
DELIVERY OF MORTGAGE LOAN DOCUMENTS
Section 2.01 SERVICING OF MORTGAGE LOANS.
From and after the Effective Date, the Servicer does hereby agree to
service the Mortgage Loans, but subject to the terms of this Agreement. The
rights of the Owner to receive payments with respect to the Mortgage Loans shall
be as set forth in this Agreement.
Section 2.02 MAINTENANCE OF SERVICING FILES.
The Servicer shall maintain a Servicing File consisting of all
documents necessary to service the Mortgage Loans. The possession of each
Servicing File by the Servicer is for the sole purpose of servicing the Mortgage
Loan, and such retention and possession by the Servicer is in a custodial
capacity only. The Servicer acknowledges that the ownership of each Mortgage
Loan, including the Note, the Mortgage, all other Mortgage Loan Documents and
all rights, benefits, proceeds and obligations arising therefrom or in
connection therewith, has been vested in the Owner. 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 Servicer
shall be received and held by the Servicer in trust for the exclusive benefit of
the Owner as the owner of the related Mortgage Loans. Any portion of the related
Servicing Files retained by the Servicer shall be appropriately identified in
the Servicer's computer system to clearly reflect the ownership of the related
Mortgage Loans by the Owner. The Servicer shall release its custody of the
contents of the related Servicing Files only in accordance with written
instructions of the Owner, except when such release is required as incidental to
the Servicer's servicing of the Mortgage Loans, such written instructions shall
not be required.
Section 2.03 BOOKS AND RECORDS.
The Servicer shall be responsible for maintaining, and shall maintain,
a complete set of books and records for the Mortgage Loans which shall be
appropriately identified in the Servicer's computer system to clearly reflect
the ownership of the Mortgage Loan by the Owner. In particular, the Servicer
shall maintain in its possession, available for inspection by the Owner, or its
designee and shall deliver to the Owner upon demand, evidence of compliance with
all federal, state and local laws, rules and regulations, and requirements of
▇▇▇▇▇▇ Mae 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 and eligibility
of any condominium project for approval by ▇▇▇▇▇▇ Mae 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 Servicer may be in the form of microfilm
or microfiche or such other reliable means of recreating original documents,
including but not limited to, optical imagery techniques so long as the Servicer
complies with the requirements of the ▇▇▇▇▇▇ ▇▇▇ Guide.
The Servicer shall maintain with respect to each Mortgage Loan and
shall make available for inspection by any Owner or its designee the related
Servicing File (or copies thereof) upon reasonable request during the time the
Owner retains ownership of a Mortgage Loan and thereafter in accordance with
applicable laws and regulations.
Section 2.04. TRANSFER OF MORTGAGE LOANS.
The Servicer shall keep at its servicing office books and records in
which, subject to such reasonable regulations as it may prescribe from time to
time, the Servicer shall 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 Servicer 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 Servicer in accordance with this Section 2.04. The Owner may,
subject to the terms of this Agreement, sell and transfer one or more of the
Mortgage Loans in accordance with Sections 10.02 and 11.12, PROVIDED, however,
that the transferee will not be deemed to be an Owner hereunder binding upon the
Servicer unless such transferee shall agree in writing to be bound by the terms
of this Agreement and an assignment and assumption of this Agreement reasonably
acceptable to the Servicer. The Owner also shall advise the Servicer in writing
of the transfer. Upon receipt of notice of the permitted transfer, the Servicer
shall ▇▇▇▇ its books and records to reflect the ownership of the Mortgage Loans
of such assignee, and shall release the previous Owner from its obligations
hereunder with respect to the Mortgage Loans sold or transferred.
Section 2.05 DELIVERY OF MORTGAGE LOAN DOCUMENTS.
The Servicer shall forward to the Custodian on behalf of the Owner
original documents evidencing an assumption, modification, consolidation or
extension of any Mortgage Loan entered into in accordance with Section 4.01 or
6.01 promptly after their execution; provided, however, that the Servicer shall
provide the Custodian on behalf of the Owner with a certified true copy of any
such document submitted for recordation promptly after 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 180 days of its execution. If delivery is
not completed within 180 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 Servicer shall continue to use its best
efforts to effect delivery as soon as possible thereafter.
From time to time the Servicer may have a need for Mortgage Loan
Documents to be released by the Custodian. If the Servicer shall require any of
the Mortgage Loan Documents, the Servicer shall notify the Custodian in writing
of such request in the form of the request for release attached hereto as
EXHIBIT D. The Custodian shall deliver to the Servicer promptly, and in no event
later than within five (5) Business Days, any requested Mortgage Loan Document
previously delivered to the Custodian, provided that such documentation is
promptly returned to the Custodian when the Servicer no longer requires
possession of the document, and provided that during the time that any such
documentation is held by the Servicer, such possession is in trust for the
benefit of the Owner.
Section 2.06 QUALITY CONTROL PROCEDURES.
The Servicer must have 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
must be capable of evaluating and monitoring the overall quality of its
servicing activities. The purpose of the program is to ensure that the Mortgage
Loans are 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.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE SERVICER
The Servicer represents, warrants and covenants to the Owner that as of
the Effective Date or as of such date specifically provided herein:
(a) The Servicer is a validly existing corporation in good standing
under the laws of the State of its organization and is qualified to transact
business in, is in good standing under the laws of, and possesses all licenses
necessary for the conduct of its business in, each state in which any Mortgaged
Property is located or is otherwise exempt or not required under applicable law
to effect such qualification or license and no demand for such qualification or
license has been made upon the Servicer by any such state, and in any event the
Servicer is in compliance with the laws of each 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;
(b) The Servicer has full power and authority to execute, deliver and
perform, and to enter into and consummate all transactions contemplated by this
Agreement and to conduct its business as presently conducted, has duly
authorized the execution, delivery and performance of this Agreement, has duly
executed and delivered this Agreement, and this Agreement constitutes a legal,
valid and binding obligation of the Servicer, enforceable against it in
accordance with its terms subject to bankruptcy laws and other similar laws of
general application affecting rights of creditors and subject to the application
of the rules of equity, including those respecting the availability of specific
performance;
(c) None of the execution and delivery of this Agreement, the
consummation of the transactions contemplated thereby and hereby, or the
fulfillment of or compliance with the terms and conditions of this Agreement
will conflict with any of the terms, conditions or provisions of the Servicer's
articles of incorporation 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 Servicer 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 Servicer or its
property is subject;
(d) There is no litigation pending or, to the Seller's knowledge,
threatened with respect to the Servicer which is reasonably likely to have a
material adverse effect on the execution, delivery or enforceability of this
Agreement, or which is reasonably likely to have a material adverse effect on
the financial condition of the Servicer;
(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 Servicer of or compliance by the Servicer with this Agreement
or the consummation of the transactions contemplated by this Agreement except
for consents, approvals, authorizations and orders which have been obtained;
(f) The collection and servicing practices used by the Servicer, with
respect to each Mortgage Note and Mortgage have been in all material respects
legal. With respect to escrow deposits and payments that the Servicer collects,
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. No escrow
deposits or other charges or payments due under the Mortgage Note have been
capitalized under any Mortgage or the related Mortgage Note;
(g) The Servicer is in good standing to service mortgage loans for
▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac and no event has occurred which would make the
Servicer unable to comply with eligibility requirements or which would require
notification to either ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac;
(h) No written statement, report or other document furnished or to be
furnished pursuant to the Agreement contains or will contain any statement that
is or will be inaccurate or misleading in any material respect or omits to state
a material fact required to be stated therein or necessary to make the
information and statements therein not misleading;
(i) No fraud or misrepresentation of a material fact with respect to
the servicing of a Mortgage Loan has taken place on the part of the Servicer;
(j) At the time Servicer commenced servicing the Mortgage Loans, either
(i) each Mortgagor was properly notified with respect to Servicer's servicing of
the related Mortgage Loan in accordance with the ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ National
Affordable Housing Act of 1990, as the same may be amended from time to time,
and the regulations provided in accordance with the Real Estate Settlement
Procedures Act or (ii) such notification was not required;
(k) At the time Servicer commenced servicing the Mortgage Loans, all
applicable taxing authorities and insurance companies (including primary
mortgage insurance policy insurers, if applicable) and/or agents were notified
of the transfer of the servicing of the Mortgage Loans to Servicer, or its
designee, and Servicer currently receives all related notices, tax bills and
insurance statements. Additionally, any and all costs, fees and expenses
associated with the Servicer's commencement of the servicing of the Mortgage
Loans, including the costs of any insurer notifications, the transfer or
implementation of tax service contracts, flood certification contracts, and any
and all other servicing transfer-related costs and expenses have been paid for
by the Servicer and will, in no event, be the responsibility of the Owner; and
(l) The collection and servicing practices with respect to each
Mortgage Note and Mortgage have been in all material respects legal. With
respect to escrow deposits and payments that the Servicer collects, 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. No escrow deposits or
other charges or payments due under the Mortgage Note have been capitalized
under any Mortgage or the related Mortgage Note.
ARTICLE IV
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 4.01 SERVICER TO ACT AS SERVICER.
The Servicer, as independent contract servicer, shall service and
administer the Mortgage Loans in accordance with this Agreement and with
Accepted Servicing Practices (giving due consideration to the Owner's reliance
on the Servicer), 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 with Accepted Servicing Practices and shall
exercise the same care that it customarily employs for its own account. Except
as set forth in this Agreement, the Servicer shall service the Mortgage Loans in
accordance with Accepted Servicing Practices in compliance with the servicing
provisions of the ▇▇▇▇▇▇ ▇▇▇ Guide, 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
fidelity bond and errors and omissions insurance, inspections, the restoration
of Mortgaged Property, the maintenance of Primary Mortgage Insurance Policies,
insurance claims, and title insurance, management 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 Loan Documents, 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 any of the servicing provisions of the ▇▇▇▇▇▇ Mae Guide, the
provisions of this Agreement shall control and be binding upon the Owner and the
Servicer. The Owner shall, upon reasonable request, deliver powers-of-attorney
to the Servicer sufficient to allow the Servicer as servicer to execute all
documentation requiring execution on behalf of Owner with respect to the
servicing of the Mortgage Loans, including satisfactions, partial releases,
modifications and foreclosure documentation or, in the alternative, shall as
promptly as reasonably possible, execute and return such documentation to the
Servicer.
Consistent with the terms of this Agreement, the Servicer may waive,
modify or vary any term of any Mortgage Loan or consent to the postponement of
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 Owner, provided,
however, that unless the Servicer has obtained the prior written consent of the
Owner, the Servicer shall not permit any modification with respect to any
Mortgage Loan that would change the Mortgage Interest Rate, forgive the 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 Owner and which permits the deferral of interest or
principal payments on any Mortgage Loan, the Servicer shall, on the Business Day
immediately preceding the related 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 and Section 5.03,
the difference between (a) such month's principal and one month's interest at
the related 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.
The Servicer shall perform all of its servicing responsibilities
hereunder or may, with the Owner's prior written approval, cause a subservicer
to perform any such servicing responsibilities on its behalf, but the use by the
Servicer of a subservicer shall not release the Servicer from any of its
obligations hereunder and the Servicer shall remain responsible hereunder for
all acts and omissions of each subservicer as fully as if such acts and
omissions were those of the Servicer. Any such subservicer that the Owner shall
be requested to consent to must be a ▇▇▇▇▇▇ ▇▇▇ approved seller/servicer or a
▇▇▇▇▇▇▇ Mac seller/servicer in good standing and no event shall have 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 seller/servicers by ▇▇▇▇▇▇▇ Mac, or which would require
notification to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac. The Servicer shall pay all fees and
expenses of each subservicer from its own funds, and a subservicer's fee shall
not exceed the Servicing Fee.
At the cost and expense of the Servicer, without any right of
reimbursement from the Custodial Account, the Servicer shall be entitled to
terminate the rights and responsibilities of a subservicer and arrange, with the
Owner's prior written approval, for any servicing responsibilities to be
performed by a successor subservicer meeting the requirements in the preceding
paragraph, provided, however, that nothing contained herein shall be deemed to
prevent or prohibit the Servicer, at the Servicer's option, from electing to
service the related Mortgage Loans itself. In the event that the Servicer's
responsibilities and duties under this Agreement are terminated pursuant to
Section 8.04, 9.01 or 10.01, and if requested to do so by the Owner, the
Servicer shall at its own cost and expense terminate the rights and
responsibilities of each subservicer effective as of the date of termination of
the Servicer. The Servicer shall pay all fees, expenses or penalties necessary
in order to terminate the rights and responsibilities of each subservicer from
the Servicer's own funds without reimbursement from the Owner.
Notwithstanding any of the provisions of this Agreement relating to
agreements or arrangements between the Servicer and a subservicer or any
reference herein to actions taken through a subservicer or otherwise, the
Servicer shall not be relieved of its obligations to the Owner and shall be
obligated to the same extent and under the same terms and conditions as if it
alone were servicing and administering the Mortgage Loans. The Servicer shall be
entitled to enter into an agreement with a subservicer for indemnification of
the Servicer by the subservicer and nothing contained in this Agreement shall be
deemed to limit or modify such indemnification.
Any subservicing agreement and any other transactions or services
relating to the Mortgage Loans involving a subservicer shall be deemed to be
between such subservicer and Servicer alone, and the Owner shall have no
obligations, duties or liabilities with respect to such Subservicer including no
obligation, duty or liability of Owner to pay such subservicer's fees and
expenses. For purposes of distributions and advances by the Servicer pursuant to
this Agreement, the Servicer shall be deemed to have received a payment on a
Mortgage Loan when a subservicer has received such payment.
Section 4.02 COLLECTION OF MORTGAGE LOAN PAYMENTS.
Continuously from the Effective Date until the date each Mortgage Loan
ceases to be subject to this Agreement, the Servicer will proceed with
reasonable diligence to collect all payments due under each Mortgage Loan when
the same shall become due and payable and shall, to the extent such procedures
shall be consistent with this Agreement and the terms and provisions of related
Primary Mortgage Insurance Policy, follow such collection procedures as it
follows with respect to mortgage loans comparable to the Mortgage Loans and held
for its own account. Further, the Servicer will take reasonable care in
ascertaining and estimating annual ground rents, taxes, assessments, water
rates, fire and hazard insurance premiums, mortgage insurance premiums, and all
other charges that, as provided in the Mortgage, will become due and payable to
the end that the installments payable by the Mortgagors will be sufficient to
pay such charges as and when they become due and payable.
Section 4.03 REALIZATION UPON DEFAULTED MORTGAGE LOANS.
The Servicer shall use its reasonable efforts, consistent with the
procedures that the Servicer would use in servicing loans for its own account
and the requirements of the ▇▇▇▇▇▇ Mae Guide, 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. The Servicer shall use its reasonable efforts to realize upon
defaulted Mortgage Loans in such manner as will maximize the receipt of
principal and interest by the Owner, taking into account, among other things,
the timing of foreclosure proceedings. The foregoing is subject to the
provisions that, in any case in which Mortgaged Property shall have suffered
damage, the 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 Owner 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. The Servicer shall notify the Owner in writing of
the commencement of foreclosure proceedings. The Servicer shall be responsible
for all costs and expenses incurred by it in any such proceedings or functions
as Servicing Advances; provided, however, that it shall be entitled to
reimbursement therefor from the related Mortgaged 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 the Servicer has reasonable cause to believe that a Mortgaged Property
is contaminated by hazardous or toxic substances or wastes, or if the Owner
otherwise requests an environmental inspection or review of such Mortgaged
Property, such an inspection or review is to be conducted by a qualified
inspector. Upon completion of the inspection, the Servicer shall promptly
provide the Owner with a written report of the environmental inspection. After
reviewing the environmental inspection report, the Owner shall determine how the
Servicer shall proceed with respect to the Mortgaged Property.
Section 4.04 ESTABLISHMENT OF CUSTODIAL ACCOUNTS; DEPOSITS IN CUSTODIAL
ACCOUNTS.
The Servicer shall segregate and hold all funds collected and received
pursuant to each Mortgage Loan separate and apart from any of its own funds and
general assets and shall establish and maintain one or more Custodial Accounts.
Each Custodial Account shall be established with a Qualified Depository. To the
extent such funds are not deposited in a Custodial Account, such funds may be
invested in Permitted Investments for the benefit of the Owner (with any income
earned thereon for the benefit of the Servicer). 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 Owner upon request. The Servicer
acknowledges and agrees that the Servicer shall bear any losses incurred with
respect to Permitted Investments. The amount of any such losses shall be
immediately deposited by the Servicer in the Custodial Account, as appropriate,
out of the Servicer's own funds, with no right to reimbursement therefor.
The Servicer shall deposit in a mortgage clearing account on a daily
basis, and in the Custodial Account or Accounts no later than the second
Business Day after receipt of funds and retain therein the following payments
and collections:
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans received after the Cut-off Date;
(ii) all payments on account of interest on the Mortgage Loans adjusted
to the related Mortgage Loan Remittance Rate received after the Cut-off Date;
(iii) all Liquidation Proceeds and REO Disposition Proceeds received
after the Cut-off Date;
(iv) any net amounts received by the Servicer after the Cut-off Date in
connection with any REO Property pursuant to Section 4.13;
(v) all Insurance Proceeds received after the Cut-off Date including
amounts required to be deposited pursuant to Sections 4.08 and 4.10, other than
proceeds to be held in the Escrow Account and applied to the restoration or
repair of the Mortgaged Property or released to the Mortgagor in accordance with
the Servicer's normal servicing procedures, the loan documents or applicable
law;
(vi) all Condemnation Proceeds affecting any Mortgaged Property
received after the Cut-off Date other than proceeds to be held in the Escrow
Account and applied to the restoration or repair of the Mortgaged Property or
released to the Mortgagor in accordance with the Servicer's normal servicing
procedures, the loan documents or applicable law;
(vii) any Monthly Advances as provided in Section 5.03;
(viii) any amounts received after the Cut-off Date and required to be
deposited in the Custodial Account pursuant to 6.02; and
(ix) with respect to each full or partial Principal Prepayment received
after the Cut-off date, any Prepayment Interest Shortfalls, to the extent of the
Servicer's aggregate Servicing Fee received with respect to the related Due
Period.
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 Qualified Depository shall accrue to the benefit
of the Servicer and the Servicer shall be entitled to retain and withdraw such
interest from the Custodial Account pursuant to Section 4.05(iv).
Section 4.05 PERMITTED WITHDRAWALS FROM THE CUSTODIAL ACCOUNT.
The Servicer may, from time to time, make withdrawals from the
Custodial Account for the following purposes:
(i) to make payments to the Owner 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;
(iii) to reimburse itself for unreimbursed Servicing Advances and
unreimbursed Monthly Advances, the Servicer's right to reimburse itself pursuant
to this subclause (iii) with respect to any Mortgage Loan being limited to
Liquidation Proceeds, Condemnation Proceeds and Insurance Proceeds received
after the Cut-off Date related to such Mortgage Loan;
(iv) to pay to itself as servicing compensation (a) any interest earned
on funds in the Custodial Account (all such interest to be withdrawn monthly not
later than each Remittance Date) and (b) any payable Servicing Fee;
(v) to reimburse itself for any Nonrecoverable Advances:
(vi) to transfer funds to another Qualified Depository in accordance
with Section 4.09 hereof;
(vii) to remove funds inadvertently placed in the Custodial Account in
error 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 Servicer shall segregate and hold all funds collected and received
pursuant to each Mortgage Loan which constitute Escrow Payments separate and
apart from any of its own funds and general assets and shall establish and
maintain one or more Escrow Accounts. Each Escrow Account shall be established
with a Qualified Depository. To the extent such funds are not deposited in an
Escrow Account, such funds may be invested in Permitted Investments. Funds
deposited in an 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 Owner upon request. The Servicer
acknowledges and agrees that the Servicer shall bear any losses incurred with
respect to Permitted Investments. The amount of any such losses shall be
immediately deposited by the Servicer in the Escrow Account, as appropriate, out
of the Servicer's own funds, with no right to reimbursement therefor.
The Servicer shall deposit in a mortgage clearing account on a daily
basis, and in the Escrow Account or Accounts no later than the second Business
Day after receipt of funds and retain therein:
(i) all Escrow Payments collected on account of the Mortgage Loans, for
the purpose of effecting timely payment of any items as are 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.
The Servicer shall make withdrawals from an Escrow Account only to
effect such payments as are required under this Agreement, and for such other
purposes as shall be as set forth in and in accordance with Section 4.07. The
Servicer shall be entitled to retain any interest paid on funds deposited in an
Escrow Account by the Qualified Depository other than interest on escrowed funds
required by law to be paid to the Mortgagor and, to the extent required by law,
the Servicer shall pay interest on escrowed funds to the Mortgagor
notwithstanding that the Escrow Account is non-interest bearing or that interest
paid thereon is insufficient for such purposes.
Section 4.07 PERMITTED WITHDRAWALS FROM ESCROW ACCOUNT.
Withdrawals from the Escrow Account may be made by the Servicer only:
(i) to effect timely payments of ground rents, taxes, assessments,
water rates, fire and hazard insurance premiums, Primary Mortgage Insurance
Policy premiums, if applicable, 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 connection with an
acquisition of REO Property;
(v) for application to restoration or repair of the Mortgaged Property;
(vi) to pay to the Servicer, or to the Mortgagor to the extent required
by law, any interest paid on the funds deposited in the Escrow Account;
(vii) to pay to the Mortgagors or other parties Insurance Proceeds
deposited in accordance with Section 4.06;
(viii) to remove funds inadvertently placed in an Escrow Account in
error by the Servicer; and
(ix) to clear and terminate the Escrow Account on the termination of
this Agreement.
As part of its servicing duties, the Servicer shall pay to the
Mortgagors interest on funds in an Escrow Account, to the extent required by
law, and to the extent that interest earned on funds in the Escrow Account is
insufficient, shall pay such interest from its own funds, without any
reimbursement therefor.
Section 4.08 PAYMENT OF TAXES, INSURANCE AND OTHER CHARGES; MAINTENANCE
OF PRIMARY MORTGAGE INSURANCE POLICIES; COLLECTIONS THEREUNDER.
With respect to each Mortgage Loan, the Servicer shall maintain
accurate records reflecting the status of ground rents, taxes, assessments,
water rates and other charges which are or may become a lien upon the Mortgaged
Property and the status of Primary Mortgage Insurance Policy premiums and fire
and hazard insurance coverage and shall obtain, from time to time, all bills for
the payment of such charges, including renewal premiums and shall effect payment
thereof prior to the applicable penalty or termination date 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 Servicer shall determine
that any such payments are made by the Mortgagor at the time they first become
due. The Servicer assumes full responsibility for the timely payment of all such
bills and shall effect timely payments of all such bills irrespective of the
Mortgagor's faithful performance in the payment of same or the making of the
Escrow Payments and shall make advances from its own funds to effect such
payments.
The Servicer will maintain in full force and effect 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
maintained until the ratio of the current outstanding principal balance of the
related Mortgage Loan to the appraised value of the related Mortgaged Property,
based on the most recent appraisal of the Mortgaged Property performed by a
Qualified Appraiser, such appraisal to be included in the Servicing File, is
reduced to 80.00% or less. The Servicer will not cancel or refuse to renew any
Primary Mortgage Insurance Policy that is required to be kept in force under
this Agreement unless a replacement Primary Mortgage Insurance Policy for such
canceled or nonrenewed policy is obtained from and maintained with a Qualified
Insurer. The Servicer shall not take any action which would result in
noncoverage under any applicable 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 Servicer shall promptly notify the
insurer under the related Primary Mortgage Insurance Policy, if any, of such
assumption or substitution of liability in accordance with the terms of such
policy and shall take all actions which may be required by such insurer as a
condition to the continuation of coverage under the Primary Mortgage Insurance
Policy. If such Primary Mortgage Insurance Policy is terminated as a result of
such assumption or substitution of liability, the Servicer shall obtain a
replacement Primary Mortgage Insurance Policy as provided above.
In connection with its activities as servicer, the Servicer agrees to
prepare and present, on behalf of itself and the Owner, 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 and, in this regard, to
take such action as shall be necessary to permit recovery under any 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 shall be deposited in the Custodial Account, subject to
withdrawal pursuant to Section 4.05.
Section 4.09 TRANSFER OF ACCOUNTS.
The Servicer may transfer the Custodial Account or the Escrow Account
to a different Qualified Depository from time to time. The Servicer shall notify
the Owner of any such transfer within 15 Business Days of transfer.
Section 4.10 MAINTENANCE OF HAZARD INSURANCE.
The Servicer shall cause to be maintained for each Mortgage Loan fire
and hazard insurance with extended coverage as is customary in the area where
the Mortgaged Property is located in an amount which is equal to the lesser of
(i) the maximum insurable value of the improvements securing such Mortgage Loan
or (ii) the greater of (a) the outstanding principal balance of the Mortgage
Loan, and (b) the percentage such that the proceeds thereof shall be sufficient
to prevent the Mortgagor and/or the Mortgagee from becoming a co-insurer. If the
Mortgaged Property is in an area identified in the Federal Register by the
Federal Emergency Management Agency as being a special flood hazard area that
has federally-mandated flood insurance requirements, the Servicer will cause to
be maintained a flood insurance policy meeting the requirements of the current
guidelines of the Federal Insurance Administration with a generally acceptable
insurance carrier, in an amount representing coverage not less than the least of
(i) the 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. The Servicer shall also maintain on the REO
Property, fire and hazard insurance with extended coverage in an amount which is
at least equal to the maximum insurable value of the improvements which are a
part of such property, liability insurance and, to the extent required and
available under the Flood Disaster Protection Act of 1973, as amended, flood
insurance in an amount as provided above. Any amounts collected by the 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 the Servicer's normal
servicing procedures, 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 or the Mortgagor or
maintained on property acquired in respect of the Mortgage Loans, other than
pursuant to the ▇▇▇▇▇▇ ▇▇▇ Guide 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 Servicer 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
Servicer. The Servicer shall not interfere with the Mortgagor's freedom of
choice in selecting either his insurance carrier or agent, provided, however,
that the Servicer shall not accept any such insurance policies from insurance
companies unless such companies currently reflect a General Policy Rating in
Best's Key Rating Guide currently acceptable to ▇▇▇▇▇▇ Mae and are licensed to
do business in the state wherein the property subject to the policy is located.
Section 4.11 ADJUSTMENTS TO MORTGAGE INTEREST RATE AND MONTHLY PAYMENT.
On each applicable Adjustment Date, the Mortgage Interest Rate shall be
adjusted, in compliance with the requirements of the related Mortgage and
Mortgage Note, to equal the sum of the Index plus the Margin (rounded in
accordance with the related Mortgage Note) subject to the applicable Periodic
Rate Cap and Lifetime Rate Cap, as set forth in the Mortgage Note. The Servicer
shall execute and deliver the notices required by each Mortgage and Mortgage
Note and applicable laws and regulations regarding interest rate adjustments.
Section 4.12 FIDELITY BOND, ERRORS AND OMISSIONS INSURANCE.
The Servicer shall maintain, at its own expense, a blanket fidelity
bond and an errors and omissions insurance policy, with broad coverage with
responsible companies on all officers, employees or other persons acting in any
capacity with regard to the Mortgage Loans and who handle funds, money,
documents and papers relating to the Mortgage Loans. The Fidelity Bond and
errors and omissions insurance shall be in the form of the Mortgage Banker's
Blanket Bond and shall protect and insure the Servicer against losses, including
forgery, theft, embezzlement, fraud, errors and omissions and negligent acts of
such persons. Such Fidelity Bond and 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 and errors and omissions insurance shall diminish or
relieve the Servicer from its duties and obligations as set forth in this
Agreement. The minimum coverage under any such Fidelity Bond and insurance
policy shall be at least equal to the corresponding amounts required by ▇▇▇▇▇▇
▇▇▇ in the ▇▇▇▇▇▇ Mae Guide or by ▇▇▇▇▇▇▇ Mac in the ▇▇▇▇▇▇▇ Mac Guide. The
Servicer shall, upon request of Owner, deliver to the Owner a certificate from
the surety and the insurer as to the existence of the Fidelity Bond and errors
and omissions insurance policy and shall 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 days prior written notice to
the Owner. The Servicer shall notify the Owner within five Business Days of
receipt of notice that such Fidelity Bond or insurance policy will be, or has
been, materially modified or terminated. The Owner and its 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.
Section 4.13 TITLE, MANAGEMENT AND DISPOSITION OF REO PROPERTY.
In the event that title to any Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure, the deed or certificate of sale
shall be taken in the name of the Owner or its designee. Any such Person or
Persons holding such title other than the Owner shall acknowledge in writing
that such title is being held as nominee for the benefit of the Owner.
The Servicer shall notify the Owner in accordance with prudent
servicing practices of each acquisition of REO Property upon such acquisition,
and thereafter assume the responsibility for marketing such REO Property in
accordance with Accepted Servicing Practices. Thereafter, the Servicer shall
continue to provide certain administrative services to the Owner relating to
such REO Property as set forth in this Section 4.13. The REO Property must be
sold within three years following the end of the calendar year of the date of
acquisition, unless a REMIC election has been made with respect to the
arrangement under which the Mortgage Loans and REO Property are held and (i) the
Owner shall have been supplied with an Opinion of Counsel to the effect that the
holding by the related trust of such Mortgaged Property subsequent to such
three-year period (and specifying the period beyond such three-year period for
which the Mortgaged Property may be held) will not result in the imposition of
taxes on "prohibited transactions" of the related trust as defined in Section
860F of the Code, or cause the related REMIC to fail to qualify as a REMIC, in
which case the related trust may continue to hold such Mortgaged Property
(subject to any conditions contained in such Opinion of Counsel), or (ii) the
Owner (at the Servicer's expense) or the Servicer shall have applied for, prior
to the expiration of such three-year period, an extension of such three-year
period in the manner contemplated by Section 856(e)(3) of the Code, in which
case the three-year period shall be extended by the applicable period. If a
period longer than three years is permitted under the foregoing sentence and is
necessary to sell any REO Property, (i) the Servicer shall report monthly to the
Owner as to progress being made in selling such REO Property and (ii) if, with
the written consent of the Owner, a purchase money mortgage is taken in
connection with such sale, such purchase money mortgage shall name the Servicer
as mortgagee, and such purchase money mortgage shall not be held pursuant to
this Agreement, but instead a separate participation agreement between the
Servicer and Owner shall be entered into with respect to such purchase money
mortgage.
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.
Notwithstanding any other provision of this Agreement, if a REMIC
election has been made, no Mortgaged Property held by a REMIC shall be rented
(or allowed to continue to be rented) or otherwise used for the production of
income by or on behalf of the related trust or sold in such a manner or pursuant
to any terms that would (i) cause such Mortgaged Property to fail to qualify at
any time as "foreclosure property" within a meaning of Section 860G(a)(8) of the
Code, (ii) subject the related trust to the imposition of any federal or state
income taxes on "net income from foreclosure property" with respect to such
Mortgaged Property within the meaning of Section 860G(c) of the Code, or (iii)
cause the sale of such Mortgaged Property to result in the receipt by the
related trust or any income from non-permitted assets as described in Section
860F(a) (2)(B) of the Code, unless the Servicer has agreed to indemnify and hold
harmless the related trust with respect to the imposition of any such taxes.
The Servicer shall, either itself or through an agent selected by the
Servicer, and in accordance with the ▇▇▇▇▇▇ ▇▇▇ Guide, 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. Each REO Disposition 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
interest of the Owner. The REO Disposition Proceeds from the sale of the REO
Property shall be promptly deposited in the Custodial Account. As soon as
practical thereafter, the expenses of such sale shall be paid and the Servicer
shall reimburse itself for any related Servicing Advances, or Monthly Advances
made pursuant to Section 5.03.
The Servicer 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 may be required by
the circumstances. The Servicer shall make or cause the inspector to make a
written report of each such inspection. Such reports shall be retained in the
Servicing File and copies thereof shall be forwarded by the Servicer to the
Owner.
Notwithstanding anything to the contrary set forth in this Section
4.13, the parties hereto hereby agree that the Owner, at its option, shall be
entitled to manage, conserve, protect and operate each REO Property for its own
benefit (such option, an "REO Option"). In connection with the exercise of an
REO Option, the prior two paragraphs and the related provisions of Section 4.03
and Section 4.04(iii) (such provisions, the "REO Marketing Provisions") shall be
revised as follows. Following the acquisition of any Mortgaged Property, the
Servicer shall submit a detailed invoice to the Owner for all related Servicing
Advances and, upon exercising the REO Option, the Owner shall promptly reimburse
the Servicer for such amounts. In the event the REO Option is exercised with
respect to an REO Property, Section 4.04 (iii) shall not be applicable thereto.
References made in Section 4.03 with respect to the reimbursement of Servicing
Advances shall, for purposes of such REO Property, be deemed to be covered by
this paragraph. The Owner acknowledges that, in the event it exercises an REO
Option, with respect to the related REO Property, there shall be no breach by
the Servicer based upon or arising out of the Servicer's failure to comply with
the REO Marketing Provisions.
ARTICLE V
PAYMENTS TO THE OWNER
Section 5.01 REMITTANCES.
On each Remittance Date, the Servicer shall remit to the Owner (i) all
amounts credited to the Custodial Account as of the close of business on the
related preceding Determination Date, except [(a) Partial Principal Prepayments
received on or after the first day of the month in which the Remittance Date
occurs shall be remitted to the Owner on the next following Remittance Date, (b)
Full Principal Prepayments received on or before the 15th day of the month in
which a Remittance Date occurs shall be remitted to the Owner on the Remittance
Date of such month, and (c) Full Principal Prepayments received after the 15th
day of the month shall be remitted to the Owner on the next following Remittance
Date, each net of charges against or withdrawals from the Custodial Account
pursuant to Section 4.05,] plus, to the extent not already deposited in the
Custodial Account, the sum of (ii) all Monthly Advances, if any, which the
Servicer is obligated to distribute pursuant to Section 5.03 and (iii) all
Prepayment Interest Shortfalls the Servicer is required to make up pursuant to
Section 4.04, minus (iv) any amounts attributable to Monthly Payments collected
after the Cut-off Date but due on a Due Date or Dates subsequent to the last day
of the related Due Period, which amounts shall be remitted on the related
Remittance Date next succeeding the Due Period for such amounts.
With respect to any remittance received by the Owner after the Business
Day on which such payment was due, the Servicer shall pay to the Owner 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 percentage points, but in no event greater
than the maximum amount permitted by applicable law. Such interest shall be
deposited in the Custodial Account by the Servicer on the date such late payment
is made and shall cover the period commencing with the day following such
Business Day and ending with the Business Day on which such payment is made,
both inclusive. Such interest shall be remitted along with the distribution
payable on the next succeeding related Remittance Date. The payment by the
Servicer of any such interest shall not be deemed an extension of time for
payment or a waiver of any Event of Default by the Servicer.
Section 5.02 STATEMENTS TO THE OWNER.
The Servicer shall furnish to the Owner an individual Mortgage Loan
accounting report (a "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, such
Report shall be received by the Owner (i) no later than the fifth Business Day
of the following month of the related Remittance Date on a disk or tape or other
computer-readable format, in such format as may be mutually agreed upon by both
the Owner and the Servicer, and (ii) no later than the tenth Business Day of the
following month of the related Remittance Date in hard copy, which Report shall
contain the following:
(i) with respect to each Monthly Payment, the amount of such
remittance allocable to interest
(ii) the amount of servicing compensation received by the Servicer
during the prior distribution period;
(iii) the aggregate Stated Principal Balance of the Mortgage Loans;
(iv) 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
(v) such other reports as may reasonably be required by the Owner.
The Servicer shall also provide a trial balance, sorted in the Owner's
assigned loan number order, and such other loan level scheduled-scheduled
remittance information as described on EXHIBIT E, in electronic tape form, with
each such Report.
The Servicer shall prepare and file any and all information statements
or other filings required to be delivered to any governmental taxing authority
or to Owner pursuant to any applicable law with respect to the Mortgage Loans
and the transactions contemplated hereby. In addition, the Servicer shall
provide the Owner with such information concerning the Mortgage Loans as is
necessary for the Owner to prepare its federal income tax return as the Owner
may reasonably request from time to time.
In addition, not more than 60 days after the end of each calendar year,
the Servicer shall furnish to each Person who was an Owner at any time during
such calendar year an annual statement in accordance with the requirements of
applicable federal income tax law as to the aggregate of remittances of
principal and interest for the applicable portion of such year.
Section 5.03 MONTHLY ADVANCES BY THE SERVICER.
Not later than the close of business on the Business Day preceding each
Remittance Date, the Servicer shall 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 Monthly Payments, adjusted to the related
Mortgage Loan Remittance Rate, which are delinquent at the close of business on
the related Determination Date; provided, however, that the amount of any such
deposit may be reduced by (i) the Amount Held for Future Distribution (as
defined below) then on deposit in the Custodial Account, plus (ii) with respect
to the initial Remittance Date, the Non-held Early Pay Amount (as defined
below). Any portion of the Amount Held for Future Distribution used to pay
Monthly Advances shall be replaced by the Servicer by deposit into the Custodial
Account on any future Remittance Date to the extent that the funds that are
available in the Custodial Account for remittance to the Owner on such
Remittance Date are less than the amount of payments required to be made to the
Owner on such Remittance Date.
The "Amount Held for Future Distribution" as to any Remittance Date
shall be the total of the amounts held in the Custodial Account at the close of
business on the preceding Determination Date which were received after the
Cut-off Date on account of (i) Liquidation Proceeds, Insurance Proceeds, and
Partial Principal Prepayments received or made in the month of such Remittance
Date, (ii) Full Principal Payments received after the 15th day of the month in
the month of such Remittance Date, and (iii) payments which represent early
receipt of scheduled payments of principal and interest due on a date or dates
subsequent to the related Due Date. The "Non-held Early Pay Amount" shall be the
total of the amounts on account of payments which represent early receipt of
scheduled payments of principal and interest received on or prior to the Cut-off
Date.
The Servicer's obligation to make such Monthly Advances as to any
Mortgage Loan will continue through the final disposition or liquidation of the
Mortgaged Property, unless the Servicer deems such advance to be nonrecoverable
from Liquidation Proceeds, REO Disposition Proceeds or Insurance Proceeds with
respect to the applicable Mortgage Loan. In such latter event, the Servicer
shall deliver to the Owner an Officer's Certificate of the Servicer to the
effect that an officer of the Servicer has reviewed the related Servicing File
and has obtained a recent appraisal and has made the reasonable determination
that any additional advances are nonrecoverable from Liquidation or Insurance
Proceeds with respect to the applicable Mortgage Loan.
Section 5.04 LIQUIDATION REPORTS.
Upon the foreclosure sale of any Mortgaged Property or the acquisition
thereof by the Owner pursuant to a deed-in-lieu of foreclosure, the Servicer
shall submit to the Owner a liquidation report with respect to such Mortgaged
Property in such form as the Servicer and the Owner shall agree. The Servicer
shall also provide reports on the status of REO Property containing such
information as Owner may reasonably require.
ARTICLE VI
GENERAL SERVICING PROCEDURES
Section 6.01 ASSUMPTION AGREEMENTS.
The Servicer will, to the extent it has knowledge of any conveyance or
prospective conveyance by any Mortgagor of a 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
Servicer shall not exercise any such rights if prohibited by law or the terms of
the Mortgage Note from doing so or if the exercise of such rights would impair
or threaten to impair any recovery under the related Primary Mortgage Insurance
Policy, if any. If the Servicer reasonably believes it is unable under
applicable law to enforce such "due-on-sale" clause, the Servicer, with the
approval of the Owner (such approval not to be unreasonably withheld), will
enter into an assumption agreement with the person to whom the Mortgaged
Property has been conveyed or is proposed to be conveyed, pursuant to which such
person becomes liable under the Mortgage Note and, to the extent permitted by
applicable state law, the Mortgagor remains liable thereon. Where an assumption
is allowed pursuant to this Section 6.01, the Servicer, with the prior consent
of the primary mortgage insurer, if any, is authorized to enter into a
substitution of liability agreement with the person to whom the Mortgaged
Property has been conveyed or is proposed to be conveyed pursuant to which the
original mortgagor is released from liability and such Person is substituted as
mortgagor and becomes liable under the related Mortgage Note. Any such
substitution of liability agreement shall be in lieu of an assumption agreement.
In connection with any such assumption or substitution of liability,
the Servicer shall follow the underwriting practices and procedures of the
▇▇▇▇▇▇ ▇▇▇ Guide. With respect to an assumption or substitution of liability,
the Mortgage Interest Rate borne by the related Mortgage Note and the amount of
the Monthly Payment may not be changed. The Servicer shall notify the Owner that
any such substitution of liability or assumption agreement has been completed by
forwarding to the Owner the original of any such substitution of liability or
assumption agreement, which document shall be added to the related Mortgage Loan
Documents and shall, for all purposes, be considered a part of such related
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
Servicer.
Notwithstanding the foregoing paragraphs of this section or any other
provision of this Agreement, the Servicer 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
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 LOAN
DOCUMENTS.
Upon the payment in full of any Mortgage Loan, the Servicer will
immediately notify the Custodian with a certification and request for release by
a Servicing Officer, which certification shall include a statement to the effect
that all amounts received in connection with such payment which are required to
be deposited in the Custodial Account pursuant to Section 4.04 have been so
deposited, and a request for delivery to the Servicer of the portion of the
Mortgage Loan Documents held by the Custodian, and unless the related Mortgage
Loans are the subject of a Pass-Through Transfer, such request is to be
acknowledged by the Owner. Upon receipt of such certification and request, the
Owner shall promptly release or cause the Custodian to promptly release the
related Mortgage Loan Documents to the Servicer and the Servicer shall prepare
and deliver for execution by the Owner or at the Owner's option execute under
the authority of a power of attorney delivered to the Servicer by the Owner any
satisfaction or release. No expense incurred in connection with any instrument
of satisfaction or deed of reconveyance shall be chargeable to the Custodial
Account.
In the event the 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 Owner may have under the mortgage
instruments, the Servicer, upon written demand, shall remit within two Business
Days to the Owner the then outstanding principal balance of the related Mortgage
Loan by deposit thereof in the Custodial Account. The Servicer shall maintain
the Fidelity Bond 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 Loans, including for the purpose of collection under any Primary
Mortgage Insurance Policy, upon request of the Servicer and delivery to the
Custodian of a servicing receipt signed by a Servicing Officer (and unless the
related Mortgage Loans are the subject of a Pass-Through Transfer, acknowledged
by the Owner), the Custodian shall release the portion of the Mortgage Loan
Documents held by the Custodian to the Servicer. Such servicing receipt shall
obligate the Servicer to promptly return the related Mortgage Loan Documents to
the Custodian, 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 such documents
have 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 promptly delivered to the
Owner or the Custodian a certificate of a Servicing Officer certifying as to the
name and address of the Person to which such documents were delivered and the
purpose or purposes of such delivery. Upon receipt of a certificate of a
Servicing Officer stating that such Mortgage Loan was liquidated, the servicing
receipt shall be released by the Owner or the Custodian, as applicable, to the
Servicer.
Section 6.03 SERVICING COMPENSATION.
As compensation for its services hereunder, the Servicer shall be
entitled to withdraw from the Custodial Account or to retain from interest
payments on the Mortgage Loans the amounts provided for as the Servicer's
Servicing Fee. Additional servicing compensation in the form of assumption fees,
as provided in Section 6.01, late payment charges and other ancillary fees shall
be retained by the Servicer to the extent not required to be deposited in the
Custodial Account. The Servicer shall be required to pay all expenses incurred
by it in connection with its servicing activities hereunder and shall not be
entitled to reimbursement therefor except as specifically provided for.
Section 6.04 ANNUAL STATEMENT AS TO COMPLIANCE.
The Servicer will deliver to the Owner or to a master servicer
designated by the Owner in connection with a Pass-Through Transfer on or before
March 15 of each year, beginning with March 15, 2005, an Officer's Certificate
in a form acceptable for filing with the Securities and Exchange Commission as
an exhibit to a Form 10-K stating that (i) 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, (ii) the Servicer has
fully complied with the provisions of this Agreement and (iii) to the best of
such officers' knowledge, based on such review, the Servicer has fulfilled all
of its obligations under this Agreement throughout such year, or, if there has
been a default in the fulfillment of any such obligation, specifying each such
default known to such officer and the nature and status thereof.
Section 6.05 ANNUAL INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS' SERVICING
REPORT.
On or before March 15 of each year beginning March 15, 2005, the
Servicer at its expense shall cause a firm of independent public accountants
which is a member of the American Institute of Certified Public Accountants to
furnish a statement to the Owner or to a master servicer designated by the Owner
in connection with a Pass-Through Transfer in a form acceptable for filing with
the Securities and Exchange Commission as an exhibit to a Form 10-K to the
effect that such firm has examined certain documents and records relating to the
servicing of mortgage loans by the Servicer generally that include a sampling of
the Mortgage Loans, the provisions of Article II and Article IV have been
complied with and, on the basis of such an examination conducted substantially
in accordance with the Uniform Single Attestation Program for Mortgage Bankers,
such servicing has been conducted in compliance with this Agreement, 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.
Section 6.06 OWNER'S RIGHT TO EXAMINE SERVICER RECORDS.
The Owner shall have the right to examine and audit, at its expense,
upon reasonable notice to the Servicer, during business hours or at such other
times as might be reasonable under applicable circumstances, any and all of the
books, records, documentation or other information of the Servicer, or held by
another for the Servicer or on its behalf or otherwise, which relate to the
performance or observance by the Servicer of the terms, covenants or conditions
of this Agreement.
The Servicer shall provide to the Owner and any supervisory agents or
examiners representing a state or federal governmental agency having
jurisdiction over the Owner, 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 applicable federal government agency, FDIC, OTS, or any
other similar regulations.
Section 6.07 COMPLIANCE WITH REMIC PROVISIONS.
If a REMIC election has been made with respect to the arrangement under
which the Mortgage Loans and REO Property are held, the Servicer shall not take
any action, cause the REMIC to take any action or fail to take (or fail to cause
to be taken) any action that, under the REMIC Provisions, if taken or not taken,
as the case may be could (i) endanger the status of the REMIC as a REMIC or (ii)
result in the imposition of a tax upon the REMIC (including but not limited to
the tax on "prohibited transactions" as defined in Section 860F(a)(2) of the
Code and the tax on "contribution" to a REMIC set forth in Section 860G(d) of
the Code unless the Servicer has received an Opinion of Counsel (at the expense
of the party seeking to take such actions) to the effect that the contemplated
action will not endanger such REMIC status or result in the imposition of any
such tax.
Section 6.08 NON-SOLICITATION.
The Servicer shall not knowingly conduct any solicitation exclusively
targeted to the Mortgagors for the purpose of inducing or encouraging the early
prepayment or refinancing of the related Mortgage Loans. It is understood and
agreed that promotions undertaken by the Servicer or any agent or affiliate of
the Servicer which are directed to the general public at large, including,
without limitation, mass mailings based on commercially acquired mailing lists,
newspaper, radio and television advertisements shall not constitute solicitation
under this section. Nothing contained herein shall prohibit the Servicer from
(i) distributing to Mortgagors any general advertising including information
brochures, coupon books, or other similar documentation which indicates services
the Seller offers, including refinances or (ii) providing financing of home
equity loans to Mortgagors at the Mortgagor's request.
Section 6.09 ANNUAL CERTIFICATION.
(a) In the event that the Mortgage Loans (or any portion thereof) are
subject to a Pass-Through Transfer and for so long as such Mortgage Loans are
being master serviced by a master servicer designated by the Owner, by March 15
of each year (or if not a business day, the immediately preceeding Business
Day), or with respect to any calendar year during which the annual report of the
entity which is the depositor (or other party responsible for filing Form 10-K
with the Commission (as defined below)) of the Mortgage Loans pursuant to a
securitization transaction (the "Depositor") on Form 10-K is required to be
filed in accordance with the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and the rules and regulations of the Securities Exchange
Commission (the "Commission"), fifteen (15) calendar days before the date on
which the Depositor's annual report on Form 10-K is required to be filed in
accordance with the Exchange Act and the rules and regulations of the Commission
(or if not a business day, the immediately preceeding Business Day), an Officer
of the Servicer shall execute and deliver an Officer's Certificate to the master
servicer for the benefit of such master servicer and its officers, directors and
affiliates, certifying as to the follow matters:
(i) Based on my knowledge, the information in the Annual Statement of
Compliance, the Annual Independent Public Accountant's Servicing Report and all
servicing reports, officer's certificates and other information relating to the
servicing of the Mortgage Loans submitted to the master servicer 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 light of the
circumstances under which such statements were made, not misleading as of the
date of this certification;
(ii) The servicing information required to be provided to the master
servicer by the Servicer under this Agreement has been provided to the master
servicer;
(iii) I am responsible for reviewing the activities performed by the
Servicer under this Agreement and based upon the review required by this
Agreement, and except as disclosed in the Annual Statement of Compliance or the
Annual Independent Public Accountant's Servicing Report submitted to the master
servicer, the Servicer has, as of the date of this certification fulfilled its
obligations under this Agreement; and
(iv) I have disclosed to the master servicer 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 this Agreement.
(b) The Servicer shall indemnify and hold harmless the master servicer
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 6.09 or the negligence, bad faith or willful
misconduct of the Servicer in connection therewith. If the indemnification
provided for herein is unavailable or insufficient to hold harmless the master
servicer, then the Servicer agrees that it shall contribute to the amount paid
or payable by the master servicer as a result of the losses, claims, damages or
liabilities of the master servicer in such proportion as is appropriate to
reflect the relative fault of the master servicer on the one hand and the
Servicer on the other in connection with a breach of the Servicer's obligations
under this Section 6.09 or the Servicer's negligence, bad faith or willful
misconduct in connection therewith.
ARTICLE VII
REPORTS TO BE PREPARED BY SERVICER
Section 7.01 SERVICER SHALL PROVIDE INFORMATION AS REASONABLY REQUIRED.
The Servicer shall furnish to the Owner upon request, during the term
of this Agreement, such periodic, special or other reports or information,
whether or not provided for herein, as shall be necessary, reasonable or
appropriate with respect to the purposes of this Agreement. The Servicer may
negotiate with the Owner for a reasonable fee for providing such report or
information, unless (i) the Servicer is required to supply such report or
information pursuant to any other section of this Agreement, or (ii) the report
or information has been requested in connection with Internal Revenue Service,
OTS, FDIC or other regulatory agency requirements. All such reports or
information shall be provided by and in accordance with all reasonable
instructions and directions given by the Owner. The Servicer agrees to execute
and deliver all such instruments and take all such action as the Owner, from
time to time, may reasonably request in order to effectuate the purpose and to
carry out the terms of this Agreement.
ARTICLE VIII
THE SERVICER
Section 8.01 INDEMNIFICATION; THIRD PARTY CLAIMS.
The Servicer agrees to indemnify the Owner and hold it harmless from
and 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 Owner may sustain in any way related to the failure of the Servicer to
perform in any way its duties and service the Mortgage Loans in strict
compliance with the terms of this Agreement and for breach of any representation
or warranty of the Servicer contained herein. The Servicer shall immediately
notify the Owner if a claim is made by a third party with respect to this
Agreement or the Mortgage Loans, assume (with the consent of the Owner and with
counsel reasonably satisfactory to the Owner) the defense of any such claim and
pay all expenses in connection therewith, including counsel fees, and promptly
pay, discharge and satisfy any judgment or decree which may be entered against
it or the Owner in respect of such claim but failure to so notify the Owner
shall not limit its obligations hereunder. The Servicer agrees that it will not
enter into any settlement of any such claim without the consent of the Owner
unless such settlement includes an unconditional release of the Owner from all
liability that is the subject matter of such claim. The provisions of this
Section 8.01 shall survive termination of this Agreement. In no event will
either Purchaser or Seller be liable to the other party to this Agreement for
incidental or consequential damages, including, without limitation, loss of
profit or loss of business or business opportunity, regardless of the form of
action whether in contract, tort or otherwise.
Section 8.02 MERGER OR CONSOLIDATION OF THE SERVICER.
The Servicer will keep in full effect its existence, rights and
franchises as a corporation under the laws of the state of its incorporation
except as permitted herein, and will obtain and preserve its qualification to do
business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement or any of the Mortgage Loans and to perform its
duties under this Agreement.
Any Person into which the 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 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, SAIF and/or BIF, or which is a
HUD-approved mortgagee whose primary business is in origination and servicing of
first lien mortgage loans, and (iii) which is a ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac
approved seller/servicer in good standing.
Section 8.03 LIMITATION ON LIABILITY OF THE SERVICER AND OTHERS.
Neither the Servicer nor any of the officers, employees or agents of
the Servicer shall be under any liability to the Owner 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 Servicer or any such person against any
breach of warranties or representations made herein, or failure to perform in
any way its obligations in compliance with any standard of care set forth in
this Agreement, or any liability which would otherwise be imposed by reason of
negligence or any breach of the terms and conditions of this Agreement. The
Servicer and any officer, employee or agent of the Servicer may rely in good
faith on any document of any kind prima facie properly executed and submitted by
the Owner respecting any matters arising hereunder. The Servicer shall not be
under any obligation to appear in, prosecute or defend any legal action which is
not incidental to its duties to service the Mortgage Loans in accordance with
this Agreement and which in its opinion may involve it in any expenses or
liability; provided, however, that the Servicer may, with the consent of the
Owner, which consent shall not be unreasonably withheld, undertake any such
action which it may deem necessary or desirable with 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 Owner will be liable, and
the Servicer shall be entitled to be reimbursed therefor from the Owner upon
written demand.
Section 8.04 SERVICER NOT TO RESIGN.
The Servicer shall not resign from the obligations and duties hereby
imposed on it except by mutual consent of the Servicer and the Owner or upon the
determination that its duties hereunder are no longer permissible under
applicable law and such incapacity cannot be cured by the Servicer. Any such
determination permitting the resignation of the Servicer shall be evidenced by
an Opinion of Counsel to such effect delivered to the Owner which Opinion of
Counsel shall be in form and substance acceptable to the Owner. No such
resignation shall become effective until a successor shall have assumed the
Servicer's responsibilities and obligations hereunder in the manner provided in
Section 11.01.
Section 8.05 NO TRANSFER OF SERVICING.
With respect to the retention of the Servicer to service the Mortgage
Loans hereunder, the Servicer acknowledges that the Owner has acted in reliance
upon the Servicer's independent status, the adequacy of its servicing
facilities, plan, personnel, records and procedures, its integrity, reputation
and financial standing and the continuance thereof. Without in any way limiting
the generality of this section, the Servicer shall not either assign this
Agreement or the servicing hereunder or delegate its rights or duties hereunder
or any portion thereof, or sell or otherwise dispose of all or substantially all
of its property or assets, without the prior written approval of the Owner,
which approval shall not be unreasonably withheld; provided that the Servicer
may assign the Agreement and the servicing hereunder without the consent of
Owner to an affiliate of the Servicer to which all servicing of the Servicer is
assigned so long as (i) such affiliate is a ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac approved
servicer and (ii) if it is intended that such affiliate be spun off to the
shareholders of the Servicer, such affiliate have a GAAP net worth of at least
$10,000,000 and (iii) such affiliate shall deliver to the Owner a certification
pursuant to which such affiliate shall agree to be bound by the terms and
conditions of this Agreement and shall certify that such affiliate is a ▇▇▇▇▇▇
Mae and ▇▇▇▇▇▇▇ Mac approved servicer in good standing.
ARTICLE IX
DEFAULT
Section 9.01 EVENTS OF DEFAULT.
In case one or more of the following Events of Default by the Servicer
shall occur and be continuing, that is to say:
(i) any failure by the Servicer to remit to the Owner any payment
required to be made under the terms of this Agreement which continues unremedied
for a period of three (3) Business Days after written notice thereof (it being
understood that this subparagraph shall not affect Servicer's obligation
pursuant to Section 5.01 to pay default interest on any remittance received by
the Owner after the Business Day on which such payment was due); or
(ii) any failure on the part of the Servicer duly to observe or perform
in any material respect any other of the covenants or agreements on the part of
the Servicer set forth in this Agreement, the breach of which has a material
adverse effect and which continue unremedied for a period of sixty days (except
that such number of days shall be fifteen in the case of a failure to pay any
premium for any insurance policy required to be maintained under this Agreement
and such failure shall be deemed to have a material adverse effect) after the
date on which written notice of such failure, requiring the same to be remedied,
shall have been given to the Servicer by the Owner; or
(iii) a decree or order of a court or agency or supervisory authority
having jurisdiction for the appointment of a conservator or receiver or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshaling of
assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Servicer and
such decree or order shall have remained in force undischarged or unstayed for a
period of sixty days; or
(iv) the Servicer shall consent to the appointment of a conservator or
receiver or liquidator in any insolvency, bankruptcy, readjustment of debt,
marshaling of assets and liabilities or similar proceedings of or relating to
the Servicer or of or relating to all or substantially all of its property; or
(v) the Servicer shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its obligations; or
(vi) the Servicer ceases to be approved by either ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇
Mac (to the extent such entities are then operating in a capacity similar to
that in which they operate on the Closing Date) as a mortgage loan servicer for
more than thirty days to the extent such entities perform similar functions; or
(vii) the Servicer attempts to assign its right to servicing
compensation hereunder or the Servicer attempts, without the consent of the
Owner, to sell or otherwise dispose of all or substantially all of its property
or assets or to assign this Agreement or the servicing responsibilities
hereunder or to delegate its duties hereunder or any portion thereof except as
otherwise permitted herein; or
(viii) failure by the Servicer to duly perform, within the required
time period, its obligations under Section 6.04, 6.05 or 6.09 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 Servicer by any party to this Agreement or by any master
servicer responsible for master servicing the Mortgage Loans pursuant to a
securitization of such Mortgage Loans
then, and in each and every such case, so long as an Event of Default
shall not have been remedied, the Owner, by notice in writing to the Servicer
may, in addition to whatever rights the Owner may have under Section 8.01 and at
law or equity to damages, including injunctive relief and specific performance,
terminate all the rights and obligations of the Servicer under this Agreement
and in and to the Mortgage Loans and the proceeds thereof without compensating
the Servicer for the same. On or after the receipt by the Servicer of such
written notice, all authority and power of the Servicer under this Agreement,
whether with respect to the Mortgage Loans or otherwise, shall pass to and be
vested in the successor appointed pursuant to Section 11.01. Upon written
request from the Owner, the Servicer shall prepare, execute and deliver, any and
all documents and other instruments, place in such successor's possession all
Servicing Files, and do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise, at the Servicer's sole expense. The Servicer
agrees to cooperate with the Owner and such successor in effecting the
termination of the Servicer's responsibilities and rights hereunder, including,
without limitation, the transfer to such successor for administration by it of
all cash amounts which shall at the time be credited by the Servicer to the
Custodial Account or Escrow Account or thereafter received with respect to the
Mortgage Loans or any REO Property.
Section 9.02 WAIVER OF DEFAULTS.
The Owner may waive only by written notice any default by the Servicer
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.
ARTICLE X
TERMINATION
Section 10.01 TERMINATION.
The respective obligations and responsibilities of the Servicer shall
terminate upon: (i) the later of the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan or the disposition of
all REO Property and the remittance of all funds due hereunder; or (ii) by
mutual consent of the Servicer and the Owner in writing; or (iii) termination by
the Owner pursuant to Section 9.01. Simultaneously with any such termination and
the transfer of servicing hereunder, the Servicer shall be entitled to be
reimbursed for any outstanding Servicing Advances and Monthly Advances.
Section 10.02 REMOVAL OF MORTGAGE LOANS FROM INCLUSION UNDER THIS
AGREEMENT UPON A WHOLE LOAN TRANSFER OR A PASS-THROUGH TRANSFER.
The Servicer acknowledges and the Owner agrees that with respect to
some or all of the Mortgage Loans, the Owner may effect either (1) one or more
Whole Loan Transfers, or (2) one or more Pass-Through Transfers.
The Servicer shall cooperate with the Owner in connection with any
Whole Loan Transfer or Pass-Through Transfer contemplated by the Owner pursuant
to this Section. In connection therewith, and without limitation, the Owner
shall deliver any reconstitution agreement or other document related to the
Whole Loan Transfer or Pass-Through Transfer to the Servicer at least 15 days
prior to such transfer (or 30 days if such transfer is to take place in March,
June, September or December) and the Servicer shall execute any such
reconstitution agreement which contains provisions substantially similar to
those herein or otherwise reasonably acceptable to the Owner and the Servicer
and which restates the representations and warranties contained in Article III
as of the date of transfer (except to the extent any such representation or
warranty is not accurate on such date); provided, however, that the Servicer is
hereby notified and hereby acknowledges that some or all of the Mortgage Loans
subject to this Agreement shall be subject to a Pass-Through Transfer on
November 30, 2004.
With respect to each Whole Loan Transfer or Pass-Through Transfer, as
the case may be, effected by the Owner, Owner (i) shall reimburse Servicer for
all reasonable out-of-pocket third party costs and expenses related thereto and
(ii) shall pay Servicer a reasonable amount representing time and effort
expended by Servicer related thereto (which amount shall be reasonably agreed
upon by Servicer and Owner prior to the expenditure of such time and effort);
PROVIDED, HOWEVER, that for each Whole Loan Transfer and/or Pass-Through
Transfer, the sum of such amounts described in subsections (i) and (ii) above
shall in no event exceed $5,000. For purposes of this paragraph, all Whole Loan
Transfers and/or Pass-Through Transfers made to the same entity within the same
accounting cycle shall be considered one Whole Loan Transfer or Pass-Through
Transfer.
All Mortgage Loans not sold or transferred pursuant to a Whole Loan
Transfer or Pass-Through Transfer shall be subject to this Agreement and shall
continue to be serviced in accordance with the terms of this Agreement and with
respect thereto this Agreement shall remain in full force and effect.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 SUCCESSOR TO THE SERVICER.
Prior to termination of the Servicer's responsibilities and duties
under this Agreement pursuant to Sections 8.04, 9.01 or 10.01(ii), the Owner
shall (i) succeed to and assume all of the Servicer'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
Servicer under this Agreement prior to the termination of the Servicer's
responsibilities, duties and liabilities under this Agreement. In connection
with such appointment and assumption, the Owner may make such arrangements for
the compensation of such successor out of payments on Mortgage Loans as the
Owner and such successor shall agree. In the event that the Servicer's duties,
responsibilities and liabilities under this Agreement should be terminated
pursuant to the aforementioned sections, the Servicer shall discharge such
duties and responsibilities during the period from the date it acquires
knowledge of such termination until the effective date thereof with the same
degree of diligence and prudence which it is obligated to exercise under this
Agreement, and shall take no action whatsoever that might impair or prejudice
the rights or financial condition of its successor. The resignation or removal
of the Servicer pursuant to the aforementioned sections shall not become
effective until a successor shall be appointed pursuant to this section and
shall in no event relieve the Servicer of the representations and warranties
made pursuant to Article III and the remedies available to the Owner under
Section 8.01, it being understood and agreed that the provisions of such Article
III and Section 8.01 shall be applicable to the Servicer notwithstanding any
such resignation or termination of the Servicer, or the termination of this
Agreement.
Any successor appointed as provided herein shall execute, acknowledge
and deliver to the Servicer and to the Owner an instrument accepting such
appointment, whereupon such successor shall become fully vested with all the
rights, powers, duties, responsibilities, obligations and liabilities of the
Servicer, with like effect as if originally named as a party to this Agreement.
Any termination or resignation of the Servicer or this Agreement pursuant to
Section 8.04, 9.01 or 10.01 shall not affect any claims that the Owner may have
against the Servicer arising prior to any such termination or resignation.
The Servicer shall promptly deliver to the successor the funds in the
Custodial Account and the Escrow Account and the Servicing Files and related
documents and statements held by it hereunder and the Servicer shall account for
all funds. The Servicer 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 Servicer. The successor shall make such
arrangements as it may deem appropriate to reimburse the Servicer for
unrecovered Servicing Advances which the successor retains hereunder and which
would otherwise have been recovered by the Servicer pursuant to this Agreement
but for the appointment of the successor servicer.
Upon a successor's acceptance of appointment as such, the Servicer
shall notify the Owner of such appointment.
Section 11.02 AMENDMENT.
This Agreement may be amended from time to time by the Servicer and the
Owner by written agreement signed by the Servicer and the Owner.
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 all the
properties subject to the Mortgages are situated, and in any other appropriate
public recording office or elsewhere, such recordation to be effected by the
Owner at the Owner's expense on direction of the Owner accompanied by an opinion
of counsel to the effect that such recordation materially and beneficially
affects the interest of the Owner or is necessary for the administration or
servicing the Mortgage Loans.
Section 11.04 GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES
OF CONFLICTS OF LAWS. 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 transmitted by telecopier and confirmed by a
similar mailed writing, as follows:
(i) if to the Servicer:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) if to the Owner:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
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
address (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 which
is prohibited or which is held to be void or unenforceable shall be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof. Any part, provision, representation or warranty of
this Agreement which is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall be ineffective, as to such jurisdiction,
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof. If the invalidity of any
part, provision, representation or warranty of this Agreement shall deprive any
party of the economic benefit intended to be conferred by this Agreement, the
parties shall negotiate, in good faith, to develop a structure the economic
effect of which is nearly as possible the same as the economic effect of this
Agreement without regard to such invalidity.
Section 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; and
(vi) the term "include" or "including" shall mean without limitation by
reason of enumeration.
Section 11.09 REPRODUCTION OF DOCUMENTS.
This Agreement and all documents relating hereto, 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. Except as required to be disclosed
by law, 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 this Agreement.
Section 11.11 RECORDATION OF ASSIGNMENTS OF MORTGAGE.
To the extent permitted by applicable law, each of the Assignments of
Mortgage is subject to recordation in all appropriate public offices for real
property records in all the counties or other comparable jurisdictions in which
any or all of the Mortgaged Properties are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Servicer at the Owner's expense.
Section 11.12 ASSIGNMENT BY THE OWNER.
The Owner shall have the right, without the consent of the Servicer
hereof, 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 Owner hereunder, by executing an assignment and
assumption agreement reasonably acceptable to the Servicer and the assignee or
designee shall accede to the rights and obligations hereunder of the Owner with
respect to such Mortgage Loans. In no event shall Owner sell a partial interest
in any Mortgage Loan. All references to the Owner in this Agreement shall be
deemed to include its assignees or designees. It is understood and agreed
between the Owners and the Servicer that no more than five (5) Persons shall
have the right of owner under this Agreement at any one time.
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 Servicer shall be rendered as an independent contractor and not as agent for
Owner.
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 Section 8.04, this Agreement
shall inure to the benefit of and be binding upon the Servicer and the Owner and
their respective successors and assigns.
Section 11.15 ENTIRE AGREEMENT.
Each of the Servicer and the Owner acknowledge that no representations,
agreements or promises were made to it by the other party or any of its
employees other than those representations, agreements or promises specifically
contained herein. This Agreement sets forth the entire understanding between the
parties hereto and shall be binding upon all successors of both parties. Section
11.16 THIRD PARTY BENEFICIARY.
For purposes of this Agreement, any master servicer designated by the
Owner shall be considered a third party beneficiary to this Agreement entitled
to all the rights and benefits accruing to any master servicer herein as if it
were a direct party to this Agreement.
IN WITNESS WHEREOF, the Servicer and the Owner have caused their names
to be signed hereto by their respective officers thereunto duly authorized as of
the date and year first above written.
GMAC MORTGAGE CORPORATION
Servicer
By:
-----------------------------------------
Name:
Title:
STRUCTURED ASSET MORTGAGE INVESTMENTS II INC.
Owner
By:
-----------------------------------------
Name:
Title:
EXHIBIT A
MORTGAGE LOAN SCHEDULE
EXHIBIT B
CUSTODIAL ACCOUNT LETTER AGREEMENT
(date)
To:______________________
_________________________
_________________________
(the "Depository")
As "Servicer" under the 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
"[Servicer] Custodial Account, in trust for [Owner], Owner of Whole Loan
Mortgages, and various Mortgagors." All deposits in the account shall be subject
to withdrawal therefrom by order signed by the Servicer. You may refuse any
deposit which would result in violation of the requirement that the account be
fully insured as described below. This letter is submitted to you in duplicate.
Please execute and return one original to us.
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 will be invested in Permitted Investments as defined in the Agreement.
[ ]
(name of Depository)
By:____________________
Name:__________________
Title:_________________
EXHIBIT C
ESCROW ACCOUNT LETTER AGREEMENT
(date)
To:___________________________
______________________________
______________________________
(the "Depository")
As "Servicer" under the 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
"[Servicer] Escrow Account, in trust for [Owner], Owner of Whole Loan Mortgages,
and various Mortgagors." All deposits in the account shall be subject to
withdrawal therefrom by order signed by the Servicer. You may refuse any deposit
which would result in violation of the requirement that the account be fully
insured as described below. This letter is submitted to you in duplicate. Please
execute and return one original to us.
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 will be invested in Permitted Investments as defined in the Agreement.
[ ]
(name of Depository)
By:____________________
Name:__________________
Title:_________________
EXHIBIT D
REQUEST FOR RELEASE
EXHIBIT E
LOAN LEVEL SCHEDULED-SCHEDULED
REMITTANCE TAPE LAYOUT
EXHIBIT H-5
SERVICING AGREEMENT
GREENPOINT
This is a Purchase, Warranties and Servicing Agreement, dated as of
September 1, 2003 and is executed between EMC MORTGAGE CORPORATION, as
Purchaser, with offices located at Mac ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (the "Purchaser"), and GREENPOINT MORTGAGE
FUNDING, INC., with offices located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ (the "Company").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Purchaser has heretofore agreed to purchase from the
Company and the Company has heretofore agreed 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;
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 Company 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.
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 New York, or (iii) a day on which banks in the
State of New York 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: GreenPoint Mortgage Funding, Inc., 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 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.
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 Company (by an
appraiser who met the requirements of the Company 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 Company 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 "GreenPoint Mortgage
Funding, Inc., in trust for the [Purchaser], Owner of Adjustable Rate 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 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 sub-servicer) or (iii) with an entity which is an institution
whose deposits are insured by the FDIC, 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, or (d) a principal
subsidiary of a bank holding company, 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 sub-servicer) and of any creditors or
depositors of the institution in which such account is maintained or (v) in a
separate non-trust account without FDIC 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.
ELIGIBLE INSTITUTION: GreenPoint Mortgage Funding, Inc., or 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 "GreenPoint Mortgage
Funding, Inc., in trust for the [Purchaser], Owner of Adjustable Rate 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.
▇▇▇▇▇▇ 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.
FHLMC: The Federal Home Loan Mortgage Corporation, or any successor
thereto.
FHLMC GUIDE: The FHLMC Single Family Seller/Servicer Guide and all
amendments or additions thereto.
FIDELITY BOND: A fidelity bond to be maintained by the Company pursuant
to Section 4.12.
FIRREA: The Financial Institutions Reform, Recovery, and Enforcement
Act of 1989.
FIRST REMITTANCE DATE: With respect to any Mortgage Loan, the
Remittance Date occurring in the month following the month in which the related
Closing Date occurs.
GAAP: Generally accepted accounting principles, consistently applied.
HUD: The United States Department of Housing and Urban Development or
any successor thereto.
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.
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.
LOAN PROGRAM CODE: With respect to each Mortgage Loan, a code
designating the loan program pursuant to which a Mortgage Loan was underwritten
in accordance with the Company's underwriting guidelines.
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.
MONTHLY ADVANCE: The aggregate of the advances made by the Company on
any Remittance Date pursuant to Section 5.03.
MONTHLY PAYMENT: The scheduled monthly 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 described in 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.
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.
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;
(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;
(27) the Loan Program Code; and
(28) the Current Appraised Value of the Mortgage Loan and Current LTV,
if applicable.
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.
NONRECOVERABLE ADVANCE: Any portion of a Monthly Advance or Servicing
Advance previously made or proposed to be made by the Company pursuant to this
Agreement, that, in the good faith judgment of the Company, 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, Insurance Proceeds,
Condemnation Proceeds or otherwise with respect to the related Mortgage Loan.
OCC: Office of the Comptroller of the Currency, or any successor
thereto.
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.
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.
OTS: Office of Thrift Supervision, or any successor thereto.
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;
(ii) (a) demand or time deposits, federal funds or bankers'
acceptances issued by any depository institution 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;
(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;
(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 investment 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 securities
issued by such corporation and held as Permitted Investments
to exceed 10% of the aggregate outstanding principal balances
of all of the Mortgage Loans and Permitted Investments;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable
on demand or on a specified date not more than one year after
the date of issuance thereof) which are rated in one of the
two highest rating categories by each Rating Agency at the
time of such investment;
(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
(vii) any money market funds the collateral of which consists
of 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 (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.
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 obligations underlying such instrument or
if such security provides for payment of both principal and interest with a
yield to maturity 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.
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 Company 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: EMC Mortgage Corporation, its successors in interest and
assigns.
QUALIFIED APPRAISER: An appraiser, duly appointed by the Company, who
had no interest, direct or indirect in the related 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 related Mortgaged Property is 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 FHLMC.
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.
REMITTANCE DATE: The 18th day of any month, beginning with the First
Remittance Date, or if such 18th day is not a Business Day, the first Business
Day immediately preceding such 18th day.
REO DISPOSITION: The final sale by the Company of any REO Property.
REO DISPOSITION PROCEEDS: Amounts received by the Company in connection
with a related REO Disposition.
REO PROPERTY: A Mortgaged Property acquired by the Company on behalf of
the Purchaser as described in Section 4.13.
REPURCHASE PRICE: With respect to any Mortgage Loan, a price equal to
(i) the product of the greater of 100% or the percentage of par as stated in the
Confirmation multiplied by the Stated Principal Balance of such Mortgage Loan on
the repurchase date, plus (ii) 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, (iii) third party expenses incurred in connection with the
transfer of the Mortgage Loan being repurchased; 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.
SALES PRICE: With respect to any Mortgage Loan the proceeds of which
were used by the Mortgagor to acquire the related Mortgaged Property, the amount
paid by the related Mortgagor for such Mortgaged Property.
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 Company of its servicing
obligations, including, but not limited to, the cost of (a) the preservation,
restoration and protection of the Mortgaged Property, (b) any enforcement,
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 Company 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 Company 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.
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 Company, 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 Company 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 Company involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name appears on a list of servicing officers furnished by the Company to the
Purchaser upon request, as such list may from time to time be amended.
STATED PRINCIPAL BALANCE: As to each Mortgage Loan 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.
SUBSERVICER: Any subservicer which is subservicing the Mortgage Loans
pursuant to a Subservicing Agreement. Any subservicer shall meet the
qualifications set forth in Section 4.01.
SUBSERVICING AGREEMENT: An agreement between the Company and a
Subservicer, if any, for the servicing of the Mortgage Loans.
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 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.
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, with
servicing retained by the Company. 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 the
Company or any successor servicer 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 deposit any such prepaid amounts
into the Custodial Account, which account is established for the benefit of the
Purchaser for subsequent remittance by the Company to the Purchaser.
Section 2.03 SERVICING OF MORTGAGE LOANS.
Simultaneously with the execution and delivery of each Term Sheet, the
Company does hereby agree to directly 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, on a
servicing retained basis, 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 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 Company is at the will of the Purchaser, for the sole purpose of
servicing the related Mortgage Loan, and such retention and possession by the
Company is in a custodial capacity only. 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 shall be
appropriately identified in the Company's computer system to clearly reflect the
ownership of the Mortgage Loans by the Purchaser. The Company shall 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 Company'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.
Section 2.05 BOOKS AND RECORDS.
The sale of each Mortgage Loan shall be reflected on the Company's
balance sheet and other financial statements as a sale of assets by the Company.
The Company shall be responsible for maintaining, and shall maintain, a complete
set of books and records for the Mortgage Loans that shall be appropriately
identified in the Company's computer system to clearly reflect the ownership of
the Mortgage Loan by the Purchaser. In particular, the Company shall maintain in
its possession, available for inspection by the Purchaser, or its designee and
shall deliver to the Purchaser upon demand, evidence of compliance with all
federal, state and local laws, rules and regulations, and requirements of ▇▇▇▇▇▇
▇▇▇ or FHLMC, 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 FHLMC, 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 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 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 cost 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 keep at its servicing office books and records in
which, subject to such reasonable regulations as it may prescribe, the Company
shall note transfers of Mortgage Loans. No transfer of a Mortgage Loan 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, provided, however, that 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 hereto executed by the
transferee shall have been delivered to the Company. The Purchaser also shall
advise the Company of the transfer. Upon receipt of notice of the transfer, the
Company shall ▇▇▇▇ its books and records to reflect the ownership of the
Mortgage Loans of such assignee, and the previous Purchaser shall be released
from its obligations hereunder with respect to the Mortgage Loans sold or
transferred.
Section 2.07 DELIVERY OF MORTGAGE LOAN DOCUMENTS.
The Company shall deliver and release 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), (9) and (16) in Exhibit A hereto shall be delivered by the
Company 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 may have in its possession,
shall be retained by the Company in trust for the Purchaser. If the Company
cannot deliver 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 120 days from the related Closing Date, deliver 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 120 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
deliver 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
180 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 effect delivery as soon as
possible thereafter, provided that if such documents are not delivered by the
270th 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.
The Company shall pay 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 prepare,
in recordable form, all assignments of mortgage necessary to assign the Mortgage
Loans to Purchaser, or its designee. Company shall be responsible for recording
the assignments of mortgage.
Company shall provide an original or duplicate 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 forward to the Purchaser, or its designee, original
documents evidencing an assumption, modification, consolidation or extension of
any Mortgage Loan entered into in accordance with Section 4.01 or 6.01 within
one week of their execution; provided, however, that the Company shall provide
the Purchaser, or its designee, with 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, 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 no longer requires possession of the document, and provided that during
the time that any such documentation is held by the Company, 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 pursuant to this paragraph.
Section 2.08 QUALITY CONTROL PROCEDURES.
The Company must have 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
must be capable of evaluating and monitoring the overall quality of its loan
production and servicing activities. The program is 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 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 Company.
In the event either 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, 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.
Section 2.10 MODIFICATION OF OBLIGATIONS.
Purchaser may, without any notice to Company, extend, compromise,
renew, release, change, modify, adjust or alter, by operation of law or
otherwise, any of the obligations of the Mortgagors or other persons obligated
under a Mortgage Loan without releasing or otherwise affecting the obligations
of Company under this Agreement, or with respect to such Mortgage Loan, except
to the extent Purchaser's extension, compromise, release, change, modification,
adjustment, or alteration affects Company's ability to collect the Mortgage Loan
or realize on the security of the Mortgage, but then only to the extent such
action has such effect.
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 New York 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;
(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,
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 origination or 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;
(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 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 and servicing practices used by the Company and any
prior originator or 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 origination and 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 Company, on behalf of an
investor, is entitled to collect, all such payments are in the possession of, or
under the control of, the Company, and there exist no deficiencies in connection
therewith for which customary arrangements for repayment thereof have not been
made. All escrow payments have been collected in full compliance with state and
federal law 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) Company is an approved seller/servicer of residential mortgage
loans for ▇▇▇▇▇▇ Mae, FHLMC and HUD, with such facilities, procedures and
personnel necessary for the sound servicing of such mortgage loans. The Company
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 sell mortgage loans to and service mortgage loans for ▇▇▇▇▇▇ ▇▇▇ and FHLMC
and no event has occurred which would make Company unable to comply with
eligibility requirements or which would require notification to either ▇▇▇▇▇▇
Mae or FHLMC;
(k) The Company does not believe, nor does it have any cause or reason
to believe, that it cannot perform each and every covenant 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;
(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 performing such services and that the
entire Servicing Fee shall be treated by the Company, for accounting and tax
purposes, as compensation for the servicing and administration of the Mortgage
Loans pursuant to this Agreement. 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 of its
parent, 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) The Company has not dealt with any broker, investment banker, agent
or other person that may be entitled to any commission or compensation in
connection with the sale of the Mortgage Loans;
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:
(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 Company 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 Company'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 Company 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 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;
(g) All buildings or other customarily insured improvements upon the
Mortgaged Property are insured by a Qualified Insurer, against loss by fire,
hazards of extended coverage and such other hazards as are provided for in the
▇▇▇▇▇▇ ▇▇▇ or FHLMC 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 FHLMC
requirements, as well as all additional requirements set forth in Section 4.10
of this Agreement. Such policy was issued by a Qualified Insurer. 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, 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) loans subject to 12 CFR Part
226.31, 12 CFR Part 226.32 or 12 CFR Part 226.34 of Regulation Z, the regulation
implementing TILA, which implements the Home Ownership and Equity Protection Act
of 1994, as amended or (b) classified and/or defined as a "high cost",
"covered", or "predatory" loan under any other state, federal or local law or
regulation or ordinance, including, but not limited to, the States of Georgia
and North Carolina and the City of New York. The Company maintains, and shall
maintain, evidence of such compliance as required by applicable law or
regulation and shall make such evidence available for inspection at the
Company's office during normal business hours upon reasonable advance notice;
(i) The Mortgage has not been satisfied, 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;
(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 ▇▇▇▇▇▇ ▇▇▇ and
FHLMC. 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;
(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, the Company 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 and supervising the
servicing of 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 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. The Company intends to relinquish all rights to possess,
control and monitor the Mortgage Loan, except for the purposes of servicing 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 FHLMC (including adjustable rate endorsements), issued by a title
insurer acceptable to ▇▇▇▇▇▇ Mae or FHLMC 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. 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;
(o) There are no mechanics' or similar liens or claims which have been
filed for work, labor or material (and no rights are outstanding that under law
could give rise to such liens) affecting the related Mortgaged Property which
are or may be liens prior to or equal 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 by or for the Company pursuant
to, and conforms with, the Company's underwriting guidelines attached as 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 Company 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;
(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, approved by the Company, 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 FHLMC 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 FHLMC;
(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
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) The Mortgage Loan does not contain balloon or "graduated payment"
features; 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
Mortgage Note requires a monthly payment which is sufficient (a) during the
period prior to the first adjustment 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 Adjustment 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 provisions 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;
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(hh) In the event the Mortgage Loan had an LTV at origination greater
than 80.00%, the excess of the principal balance of the Mortgage Loan over 75.0%
of the Appraised Value of the Mortgaged Property with respect to a Refinanced
Mortgage Loan, or the lesser of the Appraised Value or the purchase price of the
Mortgaged Property with respect to a purchase money Mortgage Loan was insured as
to payment defaults by a Primary Mortgage Insurance Policy issued by a Qualified
Insurer. 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. None of the Mortgage Loans are
subject to "lender-paid" mortgage insurance;
(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. 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 was 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. 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;
(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;
(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
Soldiers' and Sailors' Civil Relief Act of 1940;
(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
Company 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 five 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) The Mortgage Loan was originated by a mortgagee approved by the
Secretary of Housing and Urban Development pursuant to sections 203 and 211 of
the National Housing Act, a savings and loan association, a savings bank, a
commercial bank, credit union, insurance company or similar institution which is
supervised and examined by a federal or state authority;
(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, Company 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; and
(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.
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,
and such breach is not cured within sixty (60) days of the earlier of either
discovery by or notice to the Company of such breach, 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.
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.
For any month in which the Company is permitted to substitute one or
more substitute Mortgage Loans, the Company will determine the amount (if any)
by which the aggregate Stated Principal Balance (after application of the
principal portion of all scheduled payments due in the month of substitution) of
all the substitute Mortgage Loans in the month of substitution is less then the
aggregate Stated Principal Balance (after application of the principal portion
of the scheduled payment due in the month of substitution) of the such replaced
Mortgage Loan. An amount equal to the aggregate of such deficiencies described
in the preceding sentence for any Remittance Date shall be deposited into the
Custodial Account by the Company on the related Determination Date in the month
following the calendar month during which the substitution occurred.
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 (i) the earlier of 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, and (iii) demand upon the Company by the Purchaser for
compliance with this Agreement.
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 convenants to the Company that,
as of the related Closing Date or as of such date specifically provided herein:
(a) The Purchaser is a corporation, dully organized validly existing
and in good standing under the laws of the State of Delaware and is qualified to
transact business in, is in good standing under the laws of, and possesses all
licenses necessary for the conduct of its business in, each state in which any
Mortgaged Property is located or is otherwise except or not required under
applicable law to effect such qualification or license;
(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, 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;
(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 and necessary 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 Seller 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 COMPANY TO ACT AS SERVICER.
The Company, as independent contract servicer, shall service and
administer the Mortgage Loans in accordance with 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 Company 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 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, 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 and the Company.
Consistent with the terms of this Agreement and the related Term Sheet,
the Company 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 Company's reasonable and prudent determination such waiver,
modification, postponement or indulgence is not materially adverse to the
Purchaser, provided, however, that unless the Company has obtained the prior
written consent of the Purchaser, the Company 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 Company shall, on the Business Day immediately preceding
the Remittance Date in any month in which any such principal or interest payment
has been deferred, deposit in the Custodial Account from its own funds, in
accordance with Section 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 Company 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 Company 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 Company 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, if required.
Notwithstanding anything in this Agreement to the contrary, if any
Mortgage Loan becomes subject to a Pass-Through Transfer, the Company (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 Company, 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 Company 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 Company shall not
take any such actions as to which it has been advised that an Adverse REMIC
Event could occur.
The Company shall not permit the creation of any "interests" (within
the meaning of Section 860G of the Code) in any REMIC. The Company 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
employ Accepted Servicing Practices, giving due consideration to the Purchaser's
reliance on the Company. 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 as servicer.
The Mortgage Loans may be subserviced by a Subservicer on behalf of the
Company provided that the Subservicer is an entity that engages in the business
of servicing loans, and in either case shall be 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 Subservicer to perform its obligations
hereunder and under the Subservicing Agreement, and in either case shall be a
FHLMC or ▇▇▇▇▇▇ ▇▇▇ 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 ▇▇▇▇▇▇ Mae or for seller/servicers imposed by ▇▇▇▇▇▇ ▇▇▇ or FHLMC, or
which would require notification to ▇▇▇▇▇▇ Mae or FHLMC. In addition, each
Subservicer 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 Subservicing Agreement. The Company may perform any of its servicing
responsibilities hereunder or may cause the Subservicer to perform any such
servicing responsibilities on its behalf, but the use by the Company of the
Subservicer shall not release the Company from any of its obligations hereunder
and the Company shall remain responsible hereunder for all acts and omissions of
the Subservicer as fully as if such acts and omissions were those of the
Company. The Company shall pay all fees and expenses of the Subservicer from its
own funds, and the Subservicer's fee shall not exceed the Servicing Fee. Company
shall notify Purchaser promptly in writing upon the appointment of any
Subservicer.
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 the Subservicer and arrange for any
servicing responsibilities to be performed by a successor subservicer meeting
the requirements in the preceding paragraph, provided, however, that nothing
contained herein shall be deemed to prevent or prohibit the Company, at the
Company's option, from electing to service the related Mortgage Loans itself. In
the event that the Company's responsibilities and duties under this Agreement
are terminated pursuant to Section 4.13, 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 Subservicer 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
Subservicer 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 the Subservicer or any
reference herein to actions taken through the Subservicer 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
alone were servicing and administering the Mortgage Loans. The Company shall be
entitled to enter into an agreement with the Subservicer for indemnification of
the Company by the Subservicer 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 Subservicer to perform any of its servicing duties, responsibilities
and obligations hereunder.
Any Subservicing Agreement and any other transactions or services
relating to the Mortgage Loans involving the Subservicer shall be deemed to be
between the Subservicer and Company alone, and the Purchaser shall have no
obligations, duties or liabilities with respect to the Subservicer including no
obligation, duty or liability of Purchaser to pay the Subservicer'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 Subservicer 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 will proceed diligently to
collect all payments due under each Mortgage Loan when the same shall become due
and payable and shall, to the extent such procedures shall be consistent with
this Agreement, Accepted Servicing Practices, and the terms and provisions of
any related Primary Mortgage Insurance Policy, follow such collection procedures
as it follows with respect to mortgage loans comparable to the Mortgage Loans
and held for its own account. Further, the Company will 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 Company waive its right to any prepayment penalty
or premium without the prior written consent of Purchaser and Company will use
diligent efforts to collect same when due except as otherwise provided in the
prepayment penalty provisions provided in the Mortgage Loan Documents.
Section 4.03 REALIZATION UPON DEFAULTED MORTGAGE
The Company shall use its best efforts, consistent with the procedures
that the Company would use in servicing loans for its own account, consistent
with Accepted Servicing Practices, any 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 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 Company
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 Company through Insurance Proceeds or
Liquidation Proceeds from the related Mortgaged Property, as contemplated in
Section 4.05. Company shall obtain prior approval of Purchaser as to repair or
restoration expenses in excess of ten thousand dollars ($10,000). The Company
shall 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 it 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 the Company has reasonable cause to believe that a
Mortgaged Property is contaminated by hazardous or toxic substances or wastes,
or if the Purchaser otherwise requests an environmental inspection or review of
such Mortgaged Property, such an inspection or review is to be conducted by a
qualified inspector at the Purchaser's expense. Upon completion of the
inspection, the Company shall promptly provide the Purchaser with a written
report of the environmental inspection. After reviewing the environmental
inspection report, the Purchaser shall determine how the Company shall proceed
with respect to the Mortgaged Property.
Notwithstanding anything to the contrary contained herein, the
Purchaser may, at the Purchaser's sole option, terminate the Company as servicer
of any Mortgage Loan which becomes ninety (90) days or greater delinquent in
payment of a scheduled Monthly Payment, without payment of any termination fee
with respect thereto, provided that the Company shall on the date said
termination takes effect be reimbursed for any unreimbursed Monthly Advances of
the Company's funds made pursuant to Section 5.03 and any unreimbursed Servicing
Advances and Servicing Fees in each case relating to the Mortgage Loan
underlying such delinquent Mortgage Loan notwithstanding anything to the
contrary set forth in Section 4.05. In the event of any such termination, the
provisions of Section 11.01 hereof shall apply to said termination and the
transfer of servicing responsibilities with respect to such delinquent Mortgage
Loan to the Purchaser or its designee.
In the event that a Mortgage Loan becomes part of a REMIC, and becomes
REO Property, such property shall be disposed of by the Company, 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 Company 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. Company shall 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 either itself or through an
agent selected by Company, 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 perform the tax withholding and reporting
related to Sections 1445 and 6050J of the Code.
Section 4.04 ESTABLISHMENT OF CUSTODIAL ACCOUNTS; DEPOSITS IN CUSTODIAL
ACCOUNTS.
The Company shall segregate and hold all funds collected and received
pursuant to each Mortgage Loan separate and apart from any of its own funds and
general assets and shall establish and maintain one or more Custodial Accounts.
The Custodial Account shall be an Eligible Account. Funds shall be deposited in
the Custodial Account within 24 hours of receipt, and shall at all times be
insured by the FDIC up to the FDIC 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 Company 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 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 Company in connection
with any REO Property pursuant to Section 4.13 and in connection therewith, the
Company shall 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;
(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 Company pursuant to
Section 4.10 in connection with the deductible clause in any blanket hazard
insurance policy, such deposit shall be made from the Company'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 Company 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 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 Company 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 Company'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 Company'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 Company'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
Company'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;
(iv) to pay to itself as part of its servicing compensation (a) any
interest earned on funds in the Custodial Account (all such interest to be
withdrawn monthly not later than each Remittance Date), and (b) the Servicing
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 Company;
(vi) to clear and terminate the Custodial Account upon the termination
of this Agreement; and
(vii) to reimburse itself for Nonrecoverable Advances to the extent not
reimbursed pursuant to clause (ii) or clause (iii).
Section 4.06 ESTABLISHMENT OF ESCROW ACCOUNTS; DEPOSITS IN ESCROW
ACCOUNTS.
The Company shall segregate and hold all funds collected and received
pursuant to each Mortgage Loan which constitute Escrow Payments separate and
apart from any of its own funds and general assets and shall establish and
maintain one or more Escrow Accounts. 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 must be invested in Permitted Investments. Funds deposited in the
Escrow Account may be drawn on by the Company 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 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.
The Company shall 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 retain any interest paid on funds deposited in the
Escrow Account by the depository institution other than interest on escrowed
funds required by law to be paid to the Mortgagor and, to the extent required by
law, the Company shall pay interest on escrowed funds to the Mortgagor
notwithstanding that the Escrow Account is non-interest bearing or that interest
paid thereon is insufficient for such purposes. 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 Company 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 Company for any Servicing Advance made by Company
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 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; and
(viii) to pay to the Mortgagors or other parties Insurance Proceeds
deposited in accordance with Section 4.06.
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 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 Company 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 determine that any such
payments are made by the Mortgagor at the time they first become due. The
Company assumes full responsibility for the timely payment of all such bills and
shall effect timely payments of all such bills irrespective of the Mortgagor's
faithful performance in the payment of same or the making of the Escrow Payments
and shall make advances from its own funds to effect such payments.
The Company will maintain in full force and effect 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 with the approval of Purchaser, or as required by applicable law
or regulation. The Company will not cancel or refuse to renew any Primary
Mortgage Insurance Policy in effect on the Closing Date that is required to be
kept in force under this Agreement unless a replacement Primary Mortgage
Insurance Policy for such canceled or nonrenewed policy is obtained from and
maintained with a Qualified Insurer. The Company shall not take any action which
would result in non-coverage under any applicable Primary Mortgage Insurance
Policy of any loss which, but for the actions of the Company would have been
covered thereunder. In connection with any assumption or substitution agreement
entered into or to be entered into pursuant to Section 6.01, the Company shall
promptly notify the insurer under the related Primary Mortgage Insurance Policy,
if any, of such assumption or substitution of liability in accordance with the
terms of such policy and shall take all actions which may be required by such
insurer as a condition to the continuation of coverage under the Primary
Mortgage Insurance Policy. If such Primary Mortgage Insurance Policy is
terminated as a result of such assumption or substitution of liability, the
Company shall obtain a replacement Primary Mortgage Insurance Policy as provided
above.
In connection with its activities as servicer, the Company agrees to
prepare and present, on behalf of itself and the Purchaser, claims to the
insurer under any Private Mortgage Insurance Policy in a timely fashion in
accordance with the terms of such 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 respecting a defaulted Mortgage Loan. Pursuant
to Section 4.04, any amounts collected by the Company under any Primary Mortgage
Insurance Policy shall be deposited in the Custodial Account, subject to
withdrawal pursuant to Section 4.05.
Section 4.09 TRANSFER OF ACCOUNTS.
The Company 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 to be maintained for each Mortgage Loan fire
and hazard insurance with extended coverage as is acceptable to ▇▇▇▇▇▇ Mae or
FHLMC 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 ▇▇▇▇▇▇ ▇▇▇ or FHLMC, 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 Company 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 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 immediately force place the required
flood insurance on the Mortgagor's behalf. The Company shall 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 Company 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 Company 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.
Section 4.11 MAINTENANCE OF MORTGAGE IMPAIRMENT INSURANCE POLICY.
In the event that the Company shall obtain and maintain a blanket
policy issued by a Qualified Insurer 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, 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 agrees to prepare
and present, on behalf of the Purchaser, claims under any such blanket policy in
a timely fashion in accordance with the terms of such policy. Upon request of
the Purchaser, the Company shall cause to be delivered to the Purchaser a
certified true copy of such policy and shall use its best efforts to obtain a
statement from the insurer thereunder that such policy shall in no event be
terminated or materially modified without thirty (30) days' prior written notice
to the Purchaser.
Section 4.12 FIDELITY BOND, ERRORS AND OMISSIONS INSURANCE.
The Company shall maintain, at its own expense, a blanket fidelity bond
and an errors and omissions insurance policy, with broad coverage with
responsible companies on all officers, employees or other persons acting in any
capacity with regard to the Mortgage Loan 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 Company
against losses, including forgery, theft, embezzlement and fraud of such
persons. The errors and omissions insurance shall protect and insure the Company
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
Company 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 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 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 shall 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, Company shall 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.
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
Company 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 notify the Purchaser in accordance with the ▇▇▇▇▇▇
▇▇▇ 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 Company 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
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, either itself or through an agent selected by the
Company, and in accordance with the ▇▇▇▇▇▇ Mae 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 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 make or cause to be made a written report of
each such inspection. Such reports shall be retained in the Mortgage File and
copies thereof shall be forwarded by the Company to the Purchaser.
The Company shall use its best efforts to dispose of the REO Property
as soon as possible and shall sell such REO Property in any event within one
year after title has been taken to such REO Property, unless the Company
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 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 ▇▇▇▇▇▇ ▇▇▇ Guides. The disposition of REO Property shall be
carried out by the Company at such price, and upon such terms and conditions, as
the Company deems to be in the best interests of the Purchaser (subject to the
above conditions) only with the prior written consent of the Purchaser. Company
shall provide monthly reports to Purchaser in reference to the status of the
marketing of the REO Properties.
Notwithstanding anything to the contrary contained herein, the
Purchaser may, at the Purchaser's sole option, terminate the Company as servicer
of any such REO Property without payment of any termination fee with respect
thereto, provided that the Company shall on the date said termination takes
effect be reimbursed for any unreimbursed advances of the Company's funds made
pursuant to Section 5.03 and any unreimbursed Servicing Advances and Servicing
Fees in each case relating to the Mortgage Loan underlying such REO Property
notwithstanding anything to the contrary set forth in Section 4.05. In the event
of any such termination, the provisions of Section 11.01 hereof shall apply to
said termination and the transfer of servicing responsibilities with respect to
such REO Property to the Purchaser or its designee. Within five Business Days of
any such termination, the Company shall, if necessary convey such property to
the Purchaser and shall further provide the Purchaser with the following
information regarding the subject REO Property: the related drive by appraisal
or brokers price opinion, and copies of any related Mortgage Impairment
Insurance Policy claims. In addition, within five Business Days, the Company
shall provide the Purchaser with the following information and documents
regarding the subject REO Property: the related trustee's deed upon sale and
copies of any related hazard insurance claims, or repair bids.
Section 4.14 NOTIFICATION OF MATURITY DATE.
With respect to each Mortgage Loan, the Company 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 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 Company 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 Company'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.
With respect to any remittance received by the Purchaser after the
Remittance Date, the Company shall pay to the Purchaser interest on any such
late payment at an annual rate equal to the Prime Rate, adjusted as of the date
of each change, plus three (3) 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 Company of any such interest shall not be
deemed an extension of time for payment or a waiver of any Event of Default by
the Company. On each Remittance Date, the Company shall 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 furnish to Purchaser an individual loan accounting
report, as of the last Business Day of each month, in the Company'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 Company
during the prior distribution period;
(iv) the aggregate Stated Principal Balance of the Mortgage Loans;
(v) the aggregate of any expenses reimbursed to the Company 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 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 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.
In addition, not more than sixty (60) days after the end of each
calendar year, the Company shall furnish to each Person who was a Purchaser at
any time during such calendar year an annual statement in accordance with the
requirements of applicable federal income tax law as to the aggregate of
remittances for the applicable portion of such year.
Section 5.03 MONTHLY ADVANCES BY THE COMPANY.
Not later than the close of business on the Business Day preceding each
Remittance Date, the Company shall deposit in the Custodial Account an amount
equal to all payments not previously advanced by the Company, 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 Company's obligation to make such Monthly Advances as to any
Mortgage Loan will continue through the last Monthly Payment due prior to the
payment in full of the Mortgage Loan, or through the 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 Company deems such advance to be a
Nonrecoverable Advance. In such event, the Company shall deliver to the
Purchaser an Officer's Certificate of the Company to the effect that an officer
of the Company has reviewed the related Mortgage File and has made the
reasonable determination that any additional advances are nonrecoverable.
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 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 also provide reports on the status of REO Property containing such
information as Purchaser may reasonably require.
Section 5.05 PREPAYMENT INTEREST SHORTFALLS.
Not later than the close of business on the Business Day preceding each
Remittance Date in the month following the related Prepayment Period, the
Company shall deposit in the Custodial Account an amount equal to any Prepayment
Interest Shortfalls with respect to such Prepayment Period, which in the
aggregate shall not exceed the Company's aggregate Servicing Fee received with
respect to the related Due Period.
ARTICLE VI
GENERAL SERVICING PROCEDURES
Section 6.01 ASSUMPTION AGREEMENTS.
The Company will, to the extent it has knowledge of any conveyance or
prospective conveyance by any Mortgagor of the Mortgaged Property (whether by
absolute conveyance or by contract of sale, and whether or not the Mortgagor
remains or is to remain liable under the Mortgage Note and/or the Mortgage),
exercise its rights to accelerate the maturity of such Mortgage Loan under any
"due-on-sale" clause to the extent permitted by law; provided, however, that the
Company shall not exercise any such rights if prohibited by law or the terms of
the Mortgage Note from doing so or if the exercise of such rights would impair
or threaten to impair any recovery under the related Primary Mortgage Insurance
Policy, if any. If the Company reasonably believes it is unable under applicable
law to enforce such "due-on-sale" clause, the Company, with the approval of the
Purchaser, will enter into an assumption agreement with the person to whom the
Mortgaged Property has been conveyed or is proposed to be conveyed, pursuant to
which such person becomes liable under the Mortgage Note and, to the extent
permitted by applicable state law, the Mortgagor remains liable thereon. Where
an assumption is allowed pursuant to this Section 6.01, the Company, 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.
In connection with any such assumption or substitution of liability,
the Company shall follow the underwriting practices and procedures of the
Company. 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 Company diligently shall, to the extent
permitted by the Mortgage or the Mortgage Note and by applicable law, accelerate
the maturity of the Mortgage Loan. The Company shall 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 Company 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 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
Company of a notification that payment in full will be escrowed in a manner
customary for such purposes, the Company will immediately notify the Purchaser
by a certification, which certification shall include a statement to the effect
that all amounts received or to be received in connection with such payment
which are required to be deposited in the Custodial Account pursuant to Section
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 Company, the
related Mortgage Loan Documents and, upon its receipt of such documents, the
Company shall 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 Company 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.
In the event the Company 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, 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 maintain the Fidelity Bond and errors and omissions insurance insuring the
Company against any loss it may sustain with respect to any Mortgage Loan not
satisfied in accordance with the procedures set forth herein.
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, the Purchaser shall, upon request of the Company 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 Company.
Such servicing receipt shall obligate the Company to return the related Mortgage
documents to the Purchaser when the need therefor by the Company 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 Company
has delivered to the Purchaser a certificate of a Servicing Officer certifying
as to the name and address of the Person to which such Mortgage File or such
document was delivered and the purpose or purposes of such delivery. Upon
receipt of a certificate of a Servicing Officer stating that such Mortgage Loan
was liquidated, the servicing receipt shall be released by the Purchaser to the
Company.
Section 6.03 SERVICING COMPENSATION.
As compensation for its services hereunder, the Company shall be
entitled to withdraw from the Custodial Account (to the extent of interest
payments collected on the Mortgage Loans) or to retain from interest payments
collected on the Mortgage Loans, the amounts provided for as the Company's
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 retained by 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 required to pay all expenses incurred by it in connection with
its servicing activities hereunder and shall not be entitled to reimbursement
therefor except as specifically provided for.
Section 6.04 ANNUAL STATEMENT AS TO COMPLIANCE.
The Company will deliver to the Purchaser not later than 90 days
following the end of each fiscal year of the Company beginning in March 2004, an
Officers' Certificate stating, as to each signatory thereof, that (i) a review
of the activities of the Company during the preceding calendar year and of
performance under this Agreement has been made under such officers' supervision,
and (ii) to the best of such officers' knowledge, based on such review, the
Company has fulfilled all of its obligations under this Agreement throughout
such year, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to such officers and the nature
and status of cure provisions thereof. Copies of such statement shall be
provided by the Company to the Purchaser upon request.
Section 6.05 ANNUAL INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS' SERVICING
REPORT.
Within ninety (90) days of Company's fiscal year end beginning in March
2004, the Company at its expense shall cause a firm of independent public
accountants which is a member of the American Institute of Certified Public
Accountants to furnish a statement to the Purchaser to the effect that such firm
has examined certain documents and records relating to the Company's servicing
of mortgage loans of the same type as the Mortgage Loans pursuant to 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 Company'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. Copies of such
statement shall be provided by the Company to the Purchaser. In addition, on an
annual basis, Company shall provided Purchaser with copies of its audited
financial statements.
Section 6.06 PURCHASER'S RIGHT TO EXAMINE COMPANY RECORDS.
The Purchaser shall have the right to examine and audit upon reasonable
notice to the Company, during business hours or at such other times as might be
reasonable under applicable circumstances, any and all of the books, records,
documentation or other information of the Company, or held by another for the
Company or on its behalf or otherwise, which relates to the performance or
observance by the Company of the terms, covenants or conditions of this
Agreement.
The Company shall provide to the Purchaser and any supervisory agents
or examiners representing a state or federal governmental agency having
jurisdiction over the Purchaser, including but not limited to OTS, FDIC and
other similar entities, access to any documentation regarding the Mortgage Loans
in the possession of the Company 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 Company, and in
accordance with the FDIC, OTS, or any other similar federal or state
regulations, as applicable.
ARTICLE VII
REPORTS TO BE PREPARED BY SERVICER
Section 7.01 COMPANY SHALL PROVIDE INFORMATION AS REASONABLY REQUIRED.
The Company shall 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 Company 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 Company under
this Agreement. The Company agrees to execute and deliver all such instruments
and take all such action as the Purchaser, from time to time, may reasonably
request in order to effectuate the 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 Company
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 furnish promptly to
the Purchaser or a prospective purchaser copies of the statements specified
above.
The Company shall 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 Company's servicing facilities for the purpose of satisfying such
prospective purchaser that the Company has the ability to service the Mortgage
Loans as provided in this Agreement.
ARTICLE VIII
THE 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
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 from any claim, demand, defense or
assertion based on or grounded upon, or resulting from any assertion based on,
grounded upon or resulting from a breach or alleged breach of any of the
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 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 follow any 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
Company 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 negligence, bad faith or willful misconduct of
Company. The provisions of this Section 8.01 shall survive termination of this
Agreement.
Section 8.02 MERGER OR CONSOLIDATION OF THE COMPANY.
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.
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, SAIF and/or BIF, and which is a
HUD-approved mortgagee whose primary business is in origination and servicing of
first lien mortgage loans, and (iii) who is a ▇▇▇▇▇▇ Mae or FHLMC 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 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.
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 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 NO TRANSFER OF SERVICING.
With respect to the retention of the Company to service the Mortgage
Loans hereunder, the Company acknowledges that the Purchaser has acted in
reliance upon the Company's independent status, the adequacy of its servicing
facilities, plan, personnel, records and procedures, its integrity, reputation
and financial standing and the continuance thereof. Without in any way limiting
the generality of this Section, the Company shall not either assign this
Agreement or the servicing hereunder or delegate its rights or duties hereunder
or any portion thereof, or sell or otherwise dispose of all or substantially all
of its property or assets, without the prior written approval of the Purchaser,
which consent shall be granted or withheld in the Purchaser's sole discretion.
Without in any way limiting the generality of this Section 8.05, in the
event that the Company either shall assign this Agreement or the servicing
responsibilities hereunder 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.
ARTICLE IX
DEFAULT
Section 9.01 EVENTS OF DEFAULT.
In case one or more of the following Events of Default by the Company
shall occur and be continuing, that is to say:
(i) any failure by the Company to remit to the Purchaser any payment
required to be made under the terms of this Agreement which continues unremedied
for a period of one (1) Business Day; or
(ii) 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
(iii) a decree or order of a court or agency or supervisory authority
having jurisdiction for the appointment of a conservator or receiver or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshalling of
assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Company and such
decree or order shall have remained in force undischarged or unstayed for a
period of sixty days; or
(iv) 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
(v) 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; or
(vi) Company ceases to be approved by either ▇▇▇▇▇▇ ▇▇▇ or FHLMC as a
mortgage loan seller or servicer for more than thirty days; or
(vii) 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 the servicing responsibilities
hereunder or to delegate its duties hereunder or any portion thereof; or
(viii) the Company 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 Company's ability to
perform its obligations hereunder; or
(ix) the Company fails to meet the eligibility criteria set forth in
the last sentence of Section 8.02.
Then, and in each and every such case, so long as an Event of Default
shall not have been remedied, the Purchaser, by notice in writing to the Company
(except in the case of an Event of Default under clauses (iii), (iv) or (v)
above, in which case, automatically and without notice) Company may, in addition
to whatever rights the Purchaser may have under Sections 3.03 and 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. On or after the receipt by the Company of
such written notice (or, in the case of an Event of Default under clauses (iii),
(iv) or (v) above, in which case, automatically and without notice), all
authority and power of the Company under this Agreement, whether with respect to
the Mortgage Loans or otherwise, shall pass to and be vested in the successor
appointed pursuant to Section 11.01. 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 Mortgage Files, and do or
accomplish all other acts or things necessary or appropriate to effect the
purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Mortgage Loans and related documents, or
otherwise, at the Company's sole expense. The Company agrees to cooperate with
the Purchaser and such successor in effecting the termination of the Company's
responsibilities and rights hereunder, including, without limitation, the
transfer to such successor for administration by it of all cash amounts which
shall at the time be credited by the Company to the Custodial Account or Escrow
Account or thereafter received with respect to the Mortgage Loans or any REO
Property.
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.
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)
termination with cause under the terms of this Agreement.
Section 10.02 TERMINATION WITHOUT CAUSE.
The Purchaser may, at its sole option, terminate any rights the Company
may have hereunder, without cause, upon no less than 90 days written notice. Any
such notice of termination shall be in writing and delivered to the Company as
provided in Section 11.05 of this Agreement.
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 4.13, 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 4.13, 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 deliver to the successor the funds in the
Custodial Account and the Escrow Account and the Mortgage Files and related
documents and statements held by it hereunder and the Company 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.
Upon a successor's acceptance of appointment as such, the Company shall
notify by mail the Purchaser of such appointment.
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 Company'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:
GreenPoint Mortgage Funding, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: [______]
Telecopier No: [________]
(ii) if to the Purchaser:
EMC Mortgage Corporation
Mac ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Bear ▇▇▇▇▇▇▇ Mortgage Capital Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
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.
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.
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, provided such information is identified as confidential
non-public information.
Notwithstanding other provisions of this Section 16.14 or any other
express or implied agreement, arrangement, or understanding to the contrary, the
Company and Purchaser (the "Parties") agree that the Parties (and their
employees, representatives and other agents) may disclose to any and all
persons, without limitation of any kind from the commencement of discussions,
the purported or claimed U.S. federal income tax treatment of the purchase of
the Mortgage Loans and related transactions covered by this letter agreement
("tax treatment") and any fact that may be relevant to understanding the tax
treatment ("tax structure") and all materials of any kind (including opinions or
other tax analyses) that are provided to the Parties relating to such tax
treatment and tax structure, except where confidentiality is reasonably
necessary to comply with securities laws.
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 Company'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,
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. 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.
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.
From and after the Closing Date, the Company agrees that it will not
take any action or permit or cause any action to be taken by any of its agents
or affiliates, to personally, by telephone or mail, solicit the borrower or
obligor under any Mortgage Loan to refinance the Mortgage Loan, in whole or in
part, without the prior written consent of the Purchaser. Notwithstanding the
foregoing, it is understood and agreed that (i) promotions undertaken by the
Company or any affiliate of the Company which are directed to the general public
at large, or segments thereof, provided that no segment shall consist primarily
of the Mortgage Loans, including, without limitation, mass mailing based on
commercially acquired mailing lists, newspaper, radio and television
advertisements and (ii) responses to unsolicited requests or inquiries made by a
Mortgagor or an agent of a Mortgagor, shall not constitute solicitation under
this Section 11.16. This Section 11.16 shall not be deemed to preclude the
Company or any of its affiliates from soliciting any Mortgagor for any other
financial products or services. The Company shall use its best efforts to
prevent the sale of the name of any Mortgagor to any Person who is not affiliate
of the Company.
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 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.
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 among
the Purchaser, the Company, and any servicer 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"); and (4) to provide customary indemnification to the Purchaser and/or its
affiliates for any losses, claims, damages, and liabilities arising out of or
based upon information the Company provided or caused to be provided in
connection with a Pass-Through Transfer. 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 affilates for disclosure contained in any offering
document relating to the Company or its affilates, the Mortgage Loans and the
underwriting standards of the Mortgage Loans. The Purchaser shall be responsible
for the costs relating to the delivery of such information.
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.
Section 11.19. REPORTING WITH RESPECT TO A RECONSTITUTION.
The Company agrees that with respect to any Mortgage Loan sold or
transferred pursuant to a Reconstitution as described in Section 11.18 of this
Agreement (a "Reconstituted Mortgage Loan"), the Company, at its expense, shall
provide the Purchaser with the information set forth in Exhibit J attached
hereto for each Reconstituted Mortgage Loan in such electronic format as may be
mutually agreed upon by both Purchaser and Company.
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.
EMC MORTGAGE CORPORATION
Purchaser
By:________________________
Name:
Title:
GREENPOINT MORTGAGE FUNDING, INC.
Company
By: _______________________
Name:
Title:
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.
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).
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.
EXHIBIT B
CUSTODIAL ACCOUNT LETTER AGREEMENT
______________, 2003
To: [_______________________]
(the "Depository")
As "Company" under the Purchase, Warranties and Servicing Agreement,
dated as of [_____________________] 1, 200[_] (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 will be invested in Permitted Investments as defined in the Agreement.
[__________________________]
By:____________________________
Name:__________________________
Title:_________________________
EXHIBIT C
ESCROW ACCOUNT LETTER AGREEMENT
_____________, 2003
To: [_______________________]
(the "Depository")
As "Company" under the Purchase Warranties and Servicing Agreement,
dated as of [____________________]1, 200[_] (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 will be invested in Permitted Investments as defined in the Agreement.
[__________________________]
By:______________________________
Name:____________________________
Title:___________________________
EXHIBIT D
FORM OF ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
This is a Purchase, Assignment, Assumption and Recognition Agreement
(this "PAAR Agreement") made as of __________, 200__, among EMC Mortgage
Corporation (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 Company, in
blank, and an assignment of mortgage in recordable form from the 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;
(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.
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:
(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;
(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;
(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
(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.
(f) Neither this AAR Agreement nor any certification, statement, report
or other agreement, document or instrument furnished or to be furnished by the
Company pursuant to this AAR Agreement contains or will contain any materially
untrue statement of fact or omits or will omit to state a fact necessary to make
the statements contained therein not misleading.
(1) 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.
(a) 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,
EMC Mortgage Corporation
Mac ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
-------------------
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ___________
Telecopier No.: (212) 272-____
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.
(b) [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: ________________________
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:
"Company ceases to be approved by either ▇▇▇▇▇▇ ▇▇▇ or FHLMC as a
mortgage loan seller or servicer for more than thirty days, or the Company fails
to meet the servicer eligibility requirements of the Supplemental PMI Insurer;
or"]
(e) Section ____ Annual Statement as to Compliance.
The Company will deliver to the Master Servicer on or before March 15
of each year, beginning with March 15, 200__, an Officers' Certificate stating
that (i) a review of the activities of the Company during the preceding calendar
year and of performance under this Agreement has been made under such officers'
supervision, (ii) the Company has fully complied with the provisions of this
Agreement and (iii) to the best of such officers' knowledge, based on such
review, the Company has fulfilled all of its obligations under this Agreement
throughout such year, or, if there has been a default in the fulfillment of any
such obligation, specifying each such default known to such officer and the
nature and status thereof.
(f) Section ____ Annual Certification.
(a) The Company will deliver to the Master Servicer, on or before March
15 of each year beginning March 15, 200__ a certification in the form attached
hereto as Exhibit __ with respect to the servicing reports delivered by the
Company pursuant to this Agreement, the Company's compliance with the servicing
obligations set forth in this Agreement and any other information within the
control of the Company. Such certification shall be signed by the senior officer
in charge of servicing of the Company. In addition, the Company shall provide
such other information with respect to the Mortgage Loans and the servicing and
administration thereof within the control of the Company which shall be required
to enable the Master Servicer, Trustee or Depositor, as applicable, to comply
with the reporting requirements of the Securities and Exchange Act of 1934, as
amended.
IN WITNESS WHEREOF, the parties hereto have executed this PAAR
Agreement as of the day and year first above written.
EMC MORTGAGE CORPORATION
Assignor
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
---------------------------------
Assignee
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
---------------------------------
Company
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
EXHIBIT ___
FORM OF COMPANY CERTIFICATION
I, [identify certifying individual], certify to the [Trustee] [Seller]
[Securities Administrator] [Mortgage Loan Seller] [Purchaser] and [Master
Servicer] that:
1. I have reviewed the servicing reports prepared by [COMPANY] (the
"Company") pursuant to the [Servicing Agreement] (the "Servicing Agreement"),
dated as of __________ between __________ and the Company (as modified by the
AAR Agreement (as defined below) and delivered to [MASTER SERVICER] (the "Master
Servicer") pursuant to the Assignment, Assumption and Recognition Agreement (the
"AAR Agreement"), dated as of __________ among [ASSIGNOR] as Assignor, Company
and [ASSIGNEE], as Assignee.
2. Based on my knowledge, the information in these reports, 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 light of the
circumstances under which such statements were made, not misleading as of the
last day of the period covered by such servicing reports.
3. Based on my knowledge, the servicing information required to be
provided to the Master Servicer under the Servicing Agreement and the AAR
Agreement is included in these reports.
4. I am responsible for reviewing the activities performed the Company
under the Servicing Agreement and the AAR Agreement and based upon the review
required under the Servicing Agreement and the AAR Agreement, and except as
disclosed in the Annual Statement of Compliance, the Company has fulfilled its
obligations under the Servicing Agreement and the AAR Agreement.
5. I have disclosed to the Master Servicer's certified public
accountants all significant deficiencies relating to the Company's compliance
with the minimum servicing standards in accordance with a review conduced in
compliance with the Uniform Single Attestation Program for Mortgage Bankers or
similar standard as set forth in the Servicing Agreement and the AAR Agreement.
Capitalized terms used but not defined herein have the meanings
ascribed to them in the AAR Agreement.
Date:______________
__________________________
[Signature] [Title]
ATTACHMENT 1
ASSIGNED LOAN SCHEDULE
ATTACHMENT 2
PURCHASE, WARRANTIES AND SERVICING AGREEMENT
(ii)
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 have been returned and received by
the Purchaser.
Dated:________________
By:________________________________
Signature
________________________________
Title
(c) EXHIBIT H
COMPANY'S UNDERWRITING GUIDELINES
EXHIBIT I
TERM SHEET
This TERM SHEET (the "Term Sheet") dated [______], between Greenpoint
Mortgage Funding, Inc., a New York corporation, located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Company") and EMC Mortgage Corporation, a
Delaware corporation, located at Mac ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (the "Purchaser") is made pursuant to the terms
and conditions of that certain Purchase, Warranties and Servicing Agreement (the
"Agreement") dated as of September 1, 2003, 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: [None].
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: [None]. [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.
GREENPOINT MORTGAGE FUNDING, INC.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
EMC MORTGAGE CORPORATION
By:
-----------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
SCHEDULE I
MORTGAGE LOAN SCHEDULE
EXHIBIT J
RECONSTITUTED MORTGAGE LOAN REPORTING
(a) Servicer Mortgage Loan Number
(b) FNMA Mortgage Loan Number (if applicable)
(c) Lender/Seller Mortgage Loan Number (if available)
(d) Scheduled Balance (scheduled end of month balance reporting to Master
Servicer/Trustee)
(e) Actual Balance (actual end of month balance received from Mortgagor)
(f) Gross Rate (current gross rate)
(g) Net Rate (current passthrough)
(h) Last Payment Date (LPI_DATE in Fannie's Laser Reporting)
(i) Delinquency Month (if available)
(j) Default Flag, i.e. FC, REO, etc. (if available)
(k) Pay-In-Full Date (Mortgage Loan paid off by Mortgagor)
(l) Foreclosure start date
(m) Foreclosure end date
(n) REO Property date
(o) With respect to Liquidated Mortgage Loans:
(i) amount of loss or gain (as applicable)
(ii) the date of the loss or gain.
(iii) the liquidation reason (paid in full or repurchased out of
deal)
(p) Fannie's Laser Reporting
(i) Action Code (for default or paid off Mortgage Loans; i.e. 60,
65, etc.)
(ii) Action Date
(iii) Remit Prin (submitted principal amount)
(iv) Remit Int (submitted interest amount)
(v) Pool/Invest indicator (indicating Schedule/Schedule or
Actual/Actual pool)
EXHIBIT H-6
SERVICING AGREEMENT
CHASE MANHATTAN
This is a Servicing Agreement, dated as of February 1, 2004 and is
executed between EMC Mortgage Corporation, as Owner (the "Owner") and Chase
Manhattan Mortgage Corporation("Servicer").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Owner is the owner of the Mortgage Loans; and
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 hereto as Exhibit E; and
WHEREAS, the Owner and the Servicer wish to prescribe the
representations and warranties of the Servicer with respect to itself and the
management, servicing and control of the Mortgage Loans;
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth, and for other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the Owner and the Servicer 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 FNMA servicing practices and
procedures, for MBS pool mortgages, as defined in the FNMA Guides including
future updates.
ADJUSTMENT DATE: As to each Mortgage Loan, the date on which the
Mortgage Interest Rate is adjusted in accordance with the terms of the related
Mortgage Note.
AGREEMENT: This Servicing Agreement including all exhibits hereto,
amendments hereof and supplements hereto.
APPRAISED VALUE: With respect to any Mortgaged Property, the lesser of
(i) the value thereof as determined by an appraisal made for the originator of
the Mortgage Loan at the time of origination of the Mortgage Loan and (ii) the
purchase price paid for the related Mortgaged Property by the Mortgagor with the
proceeds of the Mortgage Loan.
ASSIGNMENT: An assignment of the Mortgage, notice of transfer or
equivalent instrument, in recordable form, sufficient under the laws of the
jurisdiction wherein the related Mortgaged Property is located to reflect of
record the sale or transfer of the 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 States of New York, Maryland or Minnesota, or (iii) a day
in which banks in the States of New York, Maryland or Minnesota are authorized
or obligated by law or executive order to be closed.
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.
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.
CUSTODIAL ACCOUNT: Each separate demand account or accounts created and
maintained pursuant to Section 4.04 which shall be entitled "Chase Manhattan
Mortgage Corporation, in trust for the [Owner], Owner of Whole Loan Mortgages
and various Mortgagors" and shall be established in an Eligible Account, in the
name of the Person that is the "Owner" with respect to the related Mortgage
Loans.
CUT-OFF DATE: The open of business on February 1, 2004.
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.
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: (a) within
FDIC insured accounts (or other accounts with comparable insurance coverage
acceptable to the Rating Agencies) created, maintained and monitored by the
Servicer so that all funds deposited therein are fully insured, (b) an account
or accounts maintained with a federal or state chartered depository institution
or trust company, the long-term unsecured debt obligations and short-term
unsecured debt obligations of which (or, in the case of a depository institution
or trust company that is the principal subsidiary of a holding company, the debt
obligations of such holding company, so long as ▇▇▇▇▇'▇ is not a Rating Agency)
are rated by each Rating Agency in one of its two highest long-term and its
highest short-term rating categories respectively, at the time any amounts are
held on deposit therein, or (c) in a separate non-trust account without FDIC or
other insurance in an Eligible Institution. In the event that a Custodial
Account is established pursuant to clause (b) or (c) of the preceding sentence,
the Servicer shall provide the Owner with written notice on the Business Day
following the date on which the applicable institution fails to meet the
applicable ratings requirements.
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 the Rating Agencies.
ESCROW ACCOUNT: Each separate trust account or accounts created and
maintained pursuant to Section 4.06 which shall be entitled "Chase Manhattan
Mortgage Corporation, in trust for the [Owner], Owner of Whole Loan Mortgages
and various Mortgagors" and shall be established in an Eligible Account, in the
name of the Person that is the "Owner" 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.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, or any successor
thereto.
FHLMC GUIDE: The FHLMC Single Family Seller/Servicer Guide and all
amendments or additions 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.
FIRST REMITTANCE DATE: February 18, 2004, or if such day is not a
Business Day, the first Business Day immediately preceding such date.
FNMA: The Federal National Mortgage Association, or any successor
thereto.
FNMA GUIDES: The FNMA Sellers' Guide and the FNMA Servicers' 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: On each Adjustment Date, the applicable index shall be a rate
per annum equal to the weekly average yield on U.S. Treasury securities adjusted
to a constant maturity of one year as made available by the Federal Reserve
Board, or, if not so published, as reported by any Federal Reserve Bank or by
any U.S. Government department or agency, for the week for which such figures
were most recently published or reported as of the date 45 days prior to the
Adjustment Date.
INSURANCE PROCEEDS: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged Property.
LIFETIME RATE CAP: As to each 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.
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 the
lesser of the Appraised Value of the Mortgaged Property at origination or the
purchase price of the Mortgaged Property with respect to all other Mortgage
Loans.
MARGIN: With respect to each 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: ▇▇▇▇▇ Fargo Bank, National Association, or its
successor in interest.
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 of principal and
interest on a Mortgage Loan which is payable by a Mortgagor under the related
Mortgage Note.
MORTGAGE: With respect to a Mortgage Loan that is not a Co-op Loan, the
mortgage, deed of trust or other instrument securing a Mortgage Note which
creates a first lien on an unsubordinated estate in fee simple in real property
securing the Mortgage Note; 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, the mortgage, deed of trust or other instrument
securing the Mortgage Note may secure and create a first lien upon a leasehold
estate of the Mortgagor. With respect to a Co-op Loan, the security agreement
creating a security interest in the stock allocated to a dwelling unit in the
residential cooperative housing corporation that was pledged to secure such
Co-op Loan and the related Co-op Lease.
MORTGAGE FILE: The mortgage documents pertaining to a particular
Mortgage Loan 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, in accordance with
the provisions of the related Mortgage Note.
MORTGAGE LOAN: An individual Mortgage Loan which is the subject of this
Agreement, each Mortgage Loan subject to this Agreement being identified on the
Mortgage Loan Schedule, which Mortgage Loan includes without limitation the
Mortgage File, the Monthly Payments, Principal Prepayments, Liquidation
Proceeds, Condemnation Proceeds, Insurance Proceeds, REO Disposition Proceeds,
and all other rights, benefits, proceeds and obligations arising from or in
connection with such Mortgage Loan.
MORTGAGE LOAN DOCUMENTS: The original mortgage loan legal documents.
MORTGAGE LOAN REMITTANCE RATE: With respect to each Mortgage Loan, the
annual rate of interest remitted to the Owner, which shall be equal to the
Mortgage Interest Rate minus the Servicing Fee Rate.
MORTGAGE LOAN SCHEDULE: The schedule of Mortgage Loans annexed hereto
as EXHIBIT E, such schedule being acceptable to the Owner and the Servicer.
MORTGAGED PROPERTY: With respect to a Mortgage Loan that is not a Co-op
Loan, 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 Mortgagor, the term of which
is equal to or longer than the term of the Mortgage. With respect to a Co-op
Loan, the stock allocated to a dwelling unit in the residential cooperative
housing corporation that was pledged to secure such Co-op Loan and the related
Co-op Lease.
MORTGAGOR: The obligor on a Mortgage Note.
NONRECOVERABLE ADVANCE: Any advance previously made by the Company
pursuant to Section 5.03 or any Servicing Advance which, in the good faith
judgment of the Servicer, may not be ultimately recoverable by the Servicer from
Liquidation Proceeds or otherwise. The determination by the Servicer that it has
made a Nonrecoverable Advance shall be evidenced by an Officer's Certificate of
the Servicer delivered to the Owner and the Master Servicer and detailing the
reasons for such determination.
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 and by the Treasurer or the Secretary or one of the Assistant
Treasurers or Assistant Secretaries of the Servicer, and delivered to the Owner
as required by this Agreement.
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 Owner. The cost of the preparation and delivery of any such
opinion requested by the Owner shall be an expense of the Owner.
OTS: Office of Thrift Supervision, its successors and assigns.
PERIODIC RATE CAP: As to each Mortgage Loan, the maximum increase or
decrease in the Mortgage Interest Rate on any Adjustment Date.
PERSON: Any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability corporation, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
PREPAYMENT INTEREST SHORTFALL AMOUNT: With respect to any Mortgage Loan
that is subject to a voluntary (not including discounted payoffs) Principal
Prepayment in full or in part during the related Principal Prepayment Period,
which Principal Prepayment was applied to such Mortgage Loan prior to such
Mortgage Loan's Due Date in such related Principal Prepayment Period, the amount
of interest (net of the related Servicing Fee for Principal Prepayments in full
only) that would have accrued on the amount of such Principal Prepayment during
the period commencing on the date as of which such Principal Prepayment was
applied to such Mortgage Loan and ending on the day immediately preceding such
Due Date.
PRIMARY MORTGAGE INSURANCE POLICY: Each primary policy of mortgage
insurance, 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.
PRINCIPAL PREPAYMENT PERIOD: With respect to any Remittance Date, the
calendar month immediately preceding the month in which the related Remittance
Date occurs.
OWNER: EMC Mortgage Corporation, 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, 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 FNMA and
FHLMC.
RATING AGENCIES: Fitch, Inc., Standard & Poor's Ratings Services,
▇▇▇▇▇'▇ Investor Service or, in the event that some or all 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.
REMIC: A "real estate mortgage investment conduit," as such term is
defined in the Internal Revenue Code of 1986, as amended.
REMIC PROVISIONS: The provisions of the federal income tax law relating
to REMICs, which appear at Sections 860A through 860G of the Code, and related
provisions and regulations promulgated thereunder, as the foregoing may be in
effect from time to time
REMITTANCE DATE: The 18th day of any month, beginning with the First
Remittance Date, or if such 18th day is not a Business Day, the first Business
Day immediately preceding such 18th 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 Owner as described in Section 4.13.
SAIF: The Savings Association Insurance Fund, or any successor thereto.
SERVICER'S OFFICER'S CERTIFICATE: A certificate signed by the Chairman
of the Board, President, any Vice President or Treasurer of Servicer stating the
date by which Servicer expects to receive any missing documents sent for
recording from the applicable recording office.
SERVICER: Chase Manhattan Mortgage Corporation its successors in
interest and assigns, as permitted by 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 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 Servicer 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, as 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.
SERVICING FEE: With respect to each Mortgage Loan, the amount of the
annual fee the Owner shall pay to the Servicer, 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 Owner to pay the Servicing Fee is limited to,
and the Servicing Fee is payable solely from, the interest portion (including
recoveries with respect to interest from Liquidation Proceeds, to the extent
permitted by Section 4.05) of such Monthly Payment collected by the Servicer, or
as otherwise provided under Section 4.05.
SERVICING FEE RATE: The Servicing Fee Rate shall be a rate per annum
equal to 37.5 basis points (0.375%).
SERVICING FILE: The documents, records and other items pertaining to a
particular Mortgage Loan and any additional documents relating to such Mortgage
Loan as are in, or as may from time to time come into, the Servicer's
possession.
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
Owner 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
Owner with respect to the Mortgage Loan representing payments or recoveries of
principal or advances in lieu thereof.
SUBSERVICER: Any subservicer which is subservicing the Mortgage Loans
pursuant to a Subservicing Agreement. Any subservicer shall meet the
qualifications set forth in Section 4.01.
SUBSERVICING AGREEMENT: An agreement between the Servicer and a
Subservicer for the servicing of the Mortgage Loans.
ARTICLE II
SERVICING OF MORTGAGE LOANS;
MAINTENANCE OF SERVICING FILES;
BOOKS AND RECORDS; TRANSFER OF MORTGAGE LOANS;
DELIVERY OF MORTGAGE LOAN DOCUMENTS; QUALITY CONTROL PROCEDURES
Section 2.01 SERVICING OF MORTGAGE LOANS.
Simultaneously with the execution and delivery of this Agreement, the
Servicer does hereby agree to service the Mortgage Loans listed on the Mortgage
Loan Schedule subject to the terms of this Agreement. The rights of the Owner to
receive payments with respect to the related Mortgage Loans shall be as set
forth in this Agreement.
Section 2.02 MAINTENANCE OF SERVICING FILES.
The Servicer shall maintain a Servicing File consisting of all
documents necessary to service the Mortgage Loans. The possession of each
Servicing File by the Servicer is at the will of the Owner, for the sole purpose
of servicing the related Mortgage Loan, and such retention and possession by the
Servicer is in a custodial capacity only. The Servicer acknowledges that 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
Owner. 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 Servicer shall be received and held by the
Servicer in trust for the benefit of the Owner as the owner of the Mortgage
Loans. Any portion of the Mortgage Files retained by the Servicer shall be
appropriately identified in the Servicer's computer system to clearly reflect
the ownership of the Mortgage Loans by the Owner. The Servicer shall release its
custody of the contents of the Mortgage Files only in accordance with written
instructions of the Owner, 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, such written instructions shall not be required.
Section 2.03 BOOKS AND RECORDS.
The Servicer shall be responsible for maintaining, and shall maintain,
a complete set of books and records for the Mortgage Loans which shall be
appropriately identified in the Servicer's computer system to clearly reflect
the ownership of the Mortgage Loan by the Owner. In particular, the Servicer
shall maintain in its possession, available for inspection by the Owner, or its
designee and shall deliver to the Owner upon demand, evidence of compliance with
all federal, state and local laws, rules and regulations, and requirements of
FNMA or FHLMC, 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 and eligibility of any condominium
project for approval by Servicer, 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 Servicer may be in the form of microfilm or microfiche or such
other reliable means of recreating original documents, including but not limited
to, optical imagery techniques so long as the Servicer complies with the
requirements of the FNMA Guides.
The Servicer shall maintain with respect to each Mortgage Loan and
shall make available for inspection by any Owner or its designee the related
Servicing File during the time the Owner retains ownership of a Mortgage Loan
and thereafter in accordance with applicable laws and regulations.
In addition to the foregoing, Servicer shall provide to any supervisory
agents or examiners that regulate Owner, including but not limited to, the OTS,
the FDIC and other similar entities, access, during normal business hours, upon
reasonable advance notice to Servicer and without charge to Servicer or such
supervisory agents or examiners, to any documentation regarding the Mortgage
Loans that may be required by any applicable regulator. It is anticipated that
Owner will reimburse Servicer for its out-of-pocket expenses incurred in
complying with this requirement.
Section 2.04. TRANSFER OF MORTGAGE LOANS.
The Servicer shall keep at its servicing office books and records in
which, subject to such reasonable regulations as it may prescribe, the Servicer
shall 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 Servicer 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 Servicer
in accordance with this Section 2.06 and the books and records of the Servicer
show such person as the owner of the Mortgage Loan. The Owner may, subject to
the terms of this Agreement, sell and transfer one or more of the Mortgage
Loans, provided, however, that the transferee will not be deemed to be a Owner
hereunder binding upon the Servicer 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 C hereto executed by the transferee shall
have been delivered to the Servicer. The Owner also shall advise the Servicer of
the transfer. Upon receipt of notice of the transfer, the Servicer shall ▇▇▇▇
its books and records to reflect the ownership of the Mortgage Loans of such
assignee, and the previous Owner shall be released from its obligations
hereunder with respect to the Mortgage Loans sold or transferred.
Section 2.05 DELIVERY OF MORTGAGE LOAN DOCUMENTS.
The Servicer shall forward to the Owner, 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 in
accordance with the FNMA Guides; provided, however, that the Servicer shall
provide the Owner, or its designee, with 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 Servicer may have a need for Mortgage Loan
Documents to be released from Owner, or its designee. Owner shall, or shall
cause its designee, upon the written request of the Servicer, within ten (10)
Business Days, deliver to the Servicer, any requested documentation previously
delivered to Owner as part of the Mortgage File, provided that such
documentation is promptly returned to Owner, or its designee, when the Servicer
no longer requires possession of the document, and provided that during the time
that any such documentation is held by the Servicer, such possession is in trust
for the benefit of Owner. Servicer shall indemnify Owner, 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 Servicer pursuant to this paragraph.
Section 2.06 QUALITY CONTROL PROCEDURES.
The Servicer must have 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
must be capable of evaluating and monitoring the overall quality of its loan
production and servicing activities. The program is 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.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
THE SERVICER;
Section 3.01 REPRESENTATIONS AND WARRANTIES OF THE SERVICER.
The Servicer represents, warrants and covenants to the Owner that, as
of the date hereof or as of such date specifically provided herein:
(a) The Servicer is a corporation duly organized, validly existing and
in good standing under the laws of the State of New Jersey 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 Servicer by any such
state, and in any event such Servicer 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;
(b) The Servicer has the full power and authority and legal right to
execute, deliver and perform, and to enter into and consummate all transactions
contemplated by this Agreement and to conduct its business as presently
conducted, has duly authorized the execution, delivery and performance of this
Agreement and any agreements contemplated hereby, has duly executed and
delivered this Agreement, and any agreements contemplated hereby, and this
Agreement and any agreements contemplated hereby, constitutes a legal, valid and
binding obligation of the Servicer, enforceable against it in accordance with
its terms, and all requisite corporate action has been taken by the Servicer to
make this Agreement and all agreements contemplated hereby valid and binding
upon the Servicer in accordance with their terms;
(c) None of the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, or the fulfillment of or
compliance with the terms and conditions of this Agreement will conflict with
any of the terms, conditions or provisions of the Servicer'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 Servicer 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 Servicer, or its properties are subject, or impair the ability of
the Owner to realize on the Mortgage Loans.
(d) There is no litigation, suit, proceeding or investigation pending
or, to the best of Servicer's knowledge, threatened, or any order or decree
outstanding, with respect to the Servicer which, either in any one instance or
in the aggregate, is reasonably likely to have a material adverse effect on the
execution, delivery, performance or enforceability of this Agreement, or which
is reasonably likely to have a material adverse effect on the financial
condition of the Servicer.
(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 Servicer of or compliance by the Servicer with this
Agreement, or the consummation of the transactions contemplated by this
Agreement, except for consents, approvals, authorizations and orders which have
been obtained;
(f) The consummation of the transactions contemplated by this Agreement
is in the ordinary course of business of the Servicer;
(g) The servicing practices used by the Servicer, and any prior
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. With respect to escrow deposits and payments that the Servicer, on
behalf of the 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) Servicer is an approved seller/servicer of residential mortgage
loans for FNMA, FHLMC and 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 sell
mortgage loans to and service mortgage loans for FNMA and FHLMC and no event has
occurred which would make Servicer unable to comply with eligibility
requirements or which would require notification to either FNMA or FHLMC;
(i) The Servicer does not believe, nor does it have any cause or reason
to believe, that it cannot perform each and every covenant contained in this
Agreement. The Servicer is solvent;
(j) The Servicer acknowledges and agrees that the Servicing Fee
represents reasonable compensation for performing such services and that the
entire Servicing Fee shall be treated by the Servicer, for accounting and tax
purposes, as compensation for the servicing and administration of the Mortgage
Loans pursuant to this Agreement.
ARTICLE IV
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 4.01 SERVICER TO ACT AS SERVICER.
The Servicer, as independent contract servicer, shall service and
administer the Mortgage Loans in accordance with this Agreement 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 with Accepted Servicing
Practices and exercise the same care that it customarily employs for its own
account. Except as set forth in this Agreement, the Servicer shall service the
Mortgage Loans in strict compliance with the servicing provisions of the FNMA
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, insurance claims, the title,
management 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 any of the servicing provisions of the FNMA
Guides, the provisions of this Agreement shall control and be binding upon the
Owner and the Servicer.
Consistent with the terms of this Agreement, the Servicer may waive,
modify or vary any term of any Mortgage Loan or consent to the postponement of
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 Owner, provided,
however that unless the Servicer has obtained the prior written consent of the
Owner, which consent shall be provided within two (2) Business Days of the
Servicer's request, the Servicer shall not permit any modification with respect
to any Mortgage Loan that would change the Mortgage Interest Rate, forgive the
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 Owner 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 Owner and, if required, by the Primary Mortgage
Insurance Policy issuer.
In servicing and administering the Mortgage Loans, the Servicer shall
employ Accepted Servicing Practices, giving due consideration to the Owner's
reliance on the Servicer. Unless a different time period is stated in this
Agreement, Owner shall be deemed to have given consent in connection with a
particular matter if Owner does not affirmatively grant or deny consent within 5
Business Days from the date Owner receives a second written request for consent
for such matter from Servicer as Servicer.
The Mortgage Loans may be subserviced by the Subservicer on behalf of
the Servicer provided that the Subservicer is an entity that engages in the
business of servicing loans, and in either case shall be 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 Subservicer to perform its
obligations hereunder and under the Subservicing Agreement, and in either case
shall be a FHLMC or FNMA 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 FNMA or for seller/servicers imposed by FHLMC, or which would
require notification to FNMA or FHLMC. In addition, each Subservicer 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 Subservicing
Agreement. The Servicer may perform any of its servicing responsibilities
hereunder or may cause the Subservicer to perform any such servicing
responsibilities on its behalf, but the use by the Servicer of the Subservicer
shall not release the Servicer from any of its obligations hereunder and the
Servicer shall remain responsible hereunder for all acts and omissions of the
Subservicer as fully as if such acts and omissions were those of the Servicer.
The Servicer shall pay all fees and expenses of the Subservicer from its own
funds, and the Subservicer's fee shall not exceed the Servicing Fee. Servicer
shall notify Owner promptly in writing upon the appointment of any Subservicer.
At the cost and expense of the Servicer, without any right of
reimbursement from the Custodial Account, the Servicer shall be entitled to
terminate the rights and responsibilities of the Subservicer and arrange for any
servicing responsibilities to be performed by a successor subservicer meeting
the requirements in the preceding paragraph, provided, however, that nothing
contained herein shall be deemed to prevent or prohibit the Servicer, at the
Servicer's option, from electing to service the related Mortgage Loans itself.
In the event that the Servicer's responsibilities and duties under this
Agreement are terminated pursuant to Section 4.13, 8.04, 9.01, 10.01 or 10.02
and if requested to do so by the Owner, the Servicer shall at its own cost and
expense terminate the rights and responsibilities of the Subservicer effective
as of the date of termination of the Servicer. The Servicer shall pay all fees,
expenses or penalties necessary in order to terminate the rights and
responsibilities of the Subservicer from the Servicer's own funds without
reimbursement from the Owner.
Notwithstanding any of the provisions of this Agreement relating to
agreements or arrangements between the Servicer and the Subservicer or any
reference herein to actions taken through the Subservicer or otherwise, the
Servicer shall not be relieved of its obligations to the Owner and shall be
obligated to the same extent and under the same terms and conditions as if it
alone were servicing and administering the Mortgage Loans. The Servicer shall be
entitled to enter into an agreement with the Subservicer for indemnification of
the Servicer by the Subservicer and nothing contained in this Agreement shall be
deemed to limit or modify such indemnification. The Servicer will indemnify and
hold Owner harmless from any loss, liability or expense arising out of its use
of a Subservicer to perform any of its servicing duties, responsibilities and
obligations hereunder.
Any Subservicing Agreement and any other transactions or services
relating to the Mortgage Loans involving the Subservicer shall be deemed to be
between the Subservicer and Servicer alone, and the Owner shall have no
obligations, duties or liabilities with respect to the Subservicer including no
obligation, duty or liability of Owner to pay the Subservicer's fees and
expenses. For purposes of distributions and advances by the Servicer pursuant to
this Agreement, the Servicer shall be deemed to have received a payment on a
Mortgage Loan when the Subservicer has received such payment.
Notwithstanding anything in this Agreement to the contrary, the Servicer (a)
shall not permit any modification with respect to any Mortgage Loan that would
change the Mortgage Interest Rate and (b) shall not (unless the Mortgagor is in
default with respect to the 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 any 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 which is
not contemplated under the terms of this Agreement, the Servicer will obtain an
Opinion of Counsel acceptable to the Owner 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 action 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.
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 Servicer will proceed diligently to
collect all payments due under each Mortgage Loan when the same shall become due
and payable and shall, to the extent such procedures shall be consistent with
this Agreement, Accepted Servicing Practices, and the terms and provisions of
any related Primary Mortgage Insurance Policy, follow such collection procedures
as it follows with respect to mortgage loans comparable to the Mortgage Loans
and held for its own account. Further, the Servicer will 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.
Section 4.03 REALIZATION UPON DEFAULTED MORTGAGE
The Servicer shall 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
the best interest of Owner, 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 one hundred twenty (120) days
of default for Mortgaged Properties for which no satisfactory arrangements can
be made for collection of delinquent payments. The Servicer shall use
commercially reasonable best efforts to realize upon defaulted Mortgage Loans in
such manner as will maximize the receipt of principal and interest by the Owner,
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 Owner 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. Servicer
shall obtain prior approval of Owner as to restoration expenses in excess of ten
thousand dollars ($10,000). The Servicer shall notify the Owner in writing of
the commencement of foreclosure proceedings and prior to the acceptance or
rejection of any offer of reinstatement. The Servicer shall be responsible for
all costs and expenses incurred by it 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, with respect to any Mortgage Loan as to which the
Owner has received actual notice of, or has actual knowledge of, the presence of
any toxic or hazardous substance on the related Mortgaged Property, the Owner
may instruct Servicer not to take title or possession of the Mortgaged Property
or any other action reasonable under the circumstances. In the event that
Servicer receives notice that the Mortgaged Property is contaminated by any
toxic or hazardous substance, Servicer shall so notify Owner.
In the event that a Mortgage Loan becomes part of a REMIC, and becomes
REO Property, such property shall be disposed of by Servicer, with the consent
of Owner as required pursuant to this Agreement, within three years after
becoming 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 three years after its becoming REO Property, will not result in
the imposition of taxes on "prohibted 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. Servicer shall manage, conserve, protect and
operate each such REO Property for the certificate holders 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 Servicer shall 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, Servicer shall perform the tax withholding and
reporting related to Sections 1445 and 6050J of the Code.
Section 4.04 ESTABLISHMENT OF CUSTODIAL ACCOUNTS; DEPOSITS IN CUSTODIAL
ACCOUNTS.
The Servicer shall segregate and hold all funds collected and received
pursuant to each Mortgage Loan separate and apart from any of its own funds and
general assets and shall establish and maintain one or more Custodial Accounts.
The Custodial Account shall be an Eligible Account. 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 A hereto. The original of such letter
agreement shall be furnished to the Owner, and upon the request of any
subsequent Owner.
The Servicer shall deposit in the Custodial Account within two (2)
Business Days of receipt, and retain therein the following payments and
collections received or made by it subsequent to the Cut-off Date, or received
by it prior to the Cut-off Date but allocable to a period subsequent thereto,
other than in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date:
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(ii) all payments on account of interest on the Mortgage Loans adjusted
to the Mortgage Loan Remittance Rate;
(iii) all Liquidation Proceeds;
(iv) any amounts required to be deposited by the Servicer in connection
with any REO Property pursuant to Section 4.13;
(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 the Servicer's normal
servicing procedures, the loan documents or applicable law;
(vii) any Monthly Advances;
(viii) Intentionally Omitted;
(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;
(x) any amounts required to be deposited in the Custodial Account
pursuant to Section 4.01, 4.13 or 6.02; and
(xi) any Prepayment Interest Shortfall Amount.
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 Servicer and the Servicer shall be entitled to retain and
withdraw such interest from the Custodial Account pursuant to Section 4.05 (iv).
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 Owner 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
Owner;
(iii) to reimburse itself for unreimbursed Servicing Advances and any
unpaid Servicing Fees, 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 FNMA Guides or as otherwise
set forth in this Agreement, it being understood that for those Mortgage Loans
in foreclosure, Servicer shall recover for Servicing Advances and Servicing Fees
through the completion of foreclosure and disposition of the REO Property; such
recovery shall be made upon liquidation of the REO Property;
(iv) to pay to itself as part of its servicing compensation (a) any
interest earned on funds in the Custodial Account (all such interest to be
withdrawn monthly not later than each Remittance Date), and (b) the Servicing
Fee from that portion of any payment or recovery as to interest with respect to
a particular Mortgage Loan;
(v) to transfer funds to another Eligible Account in accordance with
Section 4.09 hereof;
(vi) to remove funds inadvertently placed in the Custodial Account by
the Servicer;
(vii) to clear and terminate the Custodial Account upon the termination
of this Agreement; and
(viii) to reimburse itself for any Nonrecoverable Advances.
Section 4.06 ESTABLISHMENT OF ESCROW ACCOUNTS; DEPOSITS IN ESCROW
ACCOUNTS.
The Servicer shall segregate and hold all funds collected and received
pursuant to each Mortgage Loan which constitute Escrow Payments separate and
apart from any of its own funds and general assets and shall establish and
maintain one or more Escrow Accounts. The Escrow Account shall be an Eligible
Account. 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 B. The original of
such letter agreement shall be furnished to the Owner, and upon request to any
subsequent Owner.
The Servicer shall 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.
The Servicer shall 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
Servicer shall be entitled to retain any interest paid on funds deposited in the
Escrow Account by the depository institution other than interest on escrowed
funds required by law to be paid to the Mortgagor and, to the extent required by
law, the Servicer shall pay interest on escrowed funds to the Mortgagor
notwithstanding that the Escrow Account is non-interest bearing or that interest
paid thereon is insufficient for such purposes.
Section 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 Servicer, 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 Servicer shall 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; and
(viii) to pay to the Mortgagors or other parties Insurance Proceeds
deposited in accordance with Section 4.06.
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 Servicer shall maintain
accurate records reflecting the status of ground rents, taxes, assessments,
water rates and other charges which are or may become a lien upon the Mortgaged
Property and the status of primary mortgage insurance premiums and fire and
hazard insurance coverage and shall obtain, from time to time, all bills for the
payment of such charges, including renewal premiums and shall effect payment
thereof prior to the applicable penalty or termination date and at a time
appropriate for securing maximum discounts allowable, employing for such purpose
deposits of the Mortgagor in the Escrow Account which shall have been estimated
and accumulated by the 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 Servicer shall determine
that any such payments are made by the Mortgagor at the time they first become
due. The Servicer assumes full responsibility for the timely payment of all such
bills and shall effect timely payments of all such bills irrespective of the
Mortgagor's faithful performance in the payment of same or the making of the
Escrow Payments and shall make advances from its own funds to effect such
payments.
The Servicer will maintain in full force and effect 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
maintained until the loan-to-value ratio of the related Mortgage Loan is reduced
to 80% or less in the case of a Mortgage Loan having a Loan-to-Value Ratio at
origination in excess of 80%; provided, however, that for purposes hereof, the
Loan-to-Value Ratio shall be determined in accordance with applicable law if
such determination is different from the definition of Loan-to-Value Ratio
provided in this Agreement. The Servicer will not cancel or refuse to renew any
Primary Mortgage Insurance Policy that is required to be kept in force under
this Agreement unless a replacement Primary Mortgage Insurance Policy for such
canceled or nonrenewed policy is obtained from and maintained with a Qualified
Insurer. The Servicer shall not take any action which would result in
non-coverage under any applicable Primary Mortgage Insurance Policy of any loss
which, but for the actions of the 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 Servicer shall promptly notify the
insurer under the related Primary Mortgage Insurance Policy, if any, of such
assumption or substitution of liability in accordance with the terms of such
policy and shall take all actions which may be required by such insurer as a
condition to the continuation of coverage under the Primary Mortgage Insurance
Policy. If such Primary Mortgage Insurance Policy is terminated as a result of
such assumption or substitution of liability, the Servicer shall obtain a
replacement Primary Mortgage Insurance Policy as provided above.
In connection with its activities as servicer, the Servicer agrees to
prepare and present, on behalf of itself and the Owner, 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 and, in this regard, to
take such action as shall be necessary to permit recovery under any 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 shall be deposited in the Custodial Account, subject to
withdrawal pursuant to Section 4.05.
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 Owner, which consent will
not be unreasonably withheld.
Section 4.10 MAINTENANCE OF HAZARD INSURANCE.
The Servicer shall cause to be maintained for each Mortgage Loan fire
and hazard insurance with extended coverage as is acceptable to FNMA or FHLMC
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 FNMA or FHLMC, 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 FNMA 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 Servicer shall notify the related Mortgagor that the
Mortgagor must obtain such flood insurance coverage, and if said Mortgagor fails
to obtain the required flood insurance coverage within forty-five (45) days
after such notification, the Servicer shall immediately force place the required
flood insurance on the Mortgagor's behalf. The Servicer shall 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 FNMA
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 Servicer 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 Servicer. The Servicer shall not interfere
with the Mortgagor's freedom of choice in selecting either his insurance carrier
or agent, provided, however, that the Servicer shall not accept any such
insurance policies from insurance companies unless such companies are Qualified
Insurers.
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 FNMA or FHLMC 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 Servicer shall, 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 Servicer
agrees to prepare and present, on behalf of the Owner, claims under any such
blanket policy in a timely fashion in accordance with the terms of such policy.
Upon request of the Owner, the Servicer shall cause to be delivered to the Owner
a certified true copy of such policy and shall use commercially reasonable
efforts to obtain a statement from the insurer thereunder that such policy shall
in no event be terminated or materially modified without thirty days' prior
written notice to the Owner.
Section 4.12 FIDELITY BOND, ERRORS AND OMISSIONS INSURANCE.
The Servicer shall maintain, at its own expense, a blanket fidelity
bond and an errors and omissions insurance policy, with broad coverage 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
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 amounts deemed acceptable to FNMA or FHLMC. The Servicer shall
deliver to the Owner a certificate from the surety and the insurer as to the
existence of the Fidelity Bond and errors and omissions insurance policy and
shall 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 days' prior written notice to the Owner. The Servicer shall
notify the Owner within five business days of receipt of notice that such
Fidelity Bond or insurance policy will be, or has been, materially modified or
terminated. The Owner (or any party having the status of Owner 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 Owner, Servicer
shall provide Owner 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.
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 Owner or its designee, or in the event the
Owner 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
Owner shall acknowledge in writing that such title is being held as nominee for
the benefit of the Owner.
The Servicer shall notify the Owner in accordance with the FNMA Guides
of each acquisition of REO Property upon such acquisition, 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 Servicer shall continue to provide certain
administrative services to the Owner relating to such REO Property as set forth
in this Section 4.13. The fee for such administrative services shall be $1,500
to be paid upon liquidation of the REO Property. No Servicing Fee shall be
assessed on any REO Property from and after the date on which it becomes an REO
Property.
The Servicer shall, either itself or through an agent selected by the
Servicer, and in accordance with the FNMA 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 Servicer 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 Servicer shall make or cause the Servicer to be made a
written report of each such inspection. Such reports shall be retained in the
Mortgage File and copies thereof shall be forwarded by the Servicer to the
Owner.
The Servicer shall use commercially reasonable efforts to dispose of
the REO Property as soon as possible and shall sell such REO Property in any
event within two (2) years after title has been taken to such REO Property,
unless the Servicer determines, and gives an appropriate notice to the Owner to
such effect, that a longer period is necessary for the orderly liquidation of
such REO Property. If a longer period than two (2) years is permitted under the
foregoing sentence and is necessary to sell any REO Property, the Servicer shall
report monthly to the Owner as to the progress being made in selling such REO
Property. 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 Owner. Servicer shall provide monthly reports to
Owner in the form of Exhibit [ ] on the REO Properties.
Notwithstanding anything to the contrary contained herein, the Owner
may, at the Owner's sole option, terminate the Servicer as servicer of any such
REO Property without payment of any termination fee with respect thereto,
provided that the Servicer shall on the date said termination takes effect be
reimbursed for any unreimbursed advances of the Servicer's funds made pursuant
to Section 5.03 and any unreimbursed Servicing Advances and Servicing Fees in
each case relating to the Mortgage Loan underlying such REO Property
notwithstanding anything to the contrary set forth in Section 4.05. In the event
of any such termination, the provisions of Section 11.01 hereof shall apply to
said termination and the transfer of servicing responsibilities with respect to
such REO Property to the Owner or its designee.
Section 4.14 NOTIFICATION OF MATURITY DATE.
With respect to each Mortgage Loan, the Servicer 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 OWNER
Section 5.01 DISTRIBUTIONS.
On each Remittance Date, the Servicer shall distribute by wire transfer
of immediately available funds to the Owner (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) any Prepayment
Interest Shortfall Amount, provided that the Servicer's obligation as to payment
of such amount 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, and any Principal Prepayments
received during the month of such Remittance Date, which amounts shall be
remitted on the next succeeding Remittance Date. It is understood that, by
operation of Section 4.04, the remittance on the first Remittance Date is to
include principal collected after the Cut-off Date through the preceding
Determination Date plus interest, adjusted to the Mortgage Loan Remittance Rate
collected through such Determination Date exclusive of any portion thereof
allocable to the period prior to the Cut-off Date, with the adjustments
specified in clauses (ii), (iii) and (iv) above.
With respect to any remittance received by the Owner after the
Remittance Date, the Servicer shall pay to the Owner interest on any such late
payment at an annual rate equal to the Prime Rate, adjusted as of the date of
each change, plus three percentage points, but in no event greater than the
maximum amount permitted by applicable law. Such interest shall be deposited in
the Custodial Account by the Servicer on the date such late payment is made and
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,
both inclusive. Such interest shall be remitted along with the distribution
payable on the next succeeding Remittance Date. The payment by the Servicer of
any such interest shall not be deemed an extension of time for payment or a
waiver of any Event of Default by the Servicer.
Section 5.02 STATEMENTS TO THE OWNER.
The Servicer shall furnish to Owner 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 Owner 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 Owner and Servicer,
and no later than the seventh Business Day of the following month in hard copy,
which report, in hard copy, shall be substantially in the form of Exhibit D, 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;
(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 Servicer shall also provide a trial balance, sorted in Owner's
assigned loan number order, in the form of Exhibit D hereto, with each such
Report. The Master Servicer shall deliver to the Servicer a loan level
turn-around discrepancy report two (2) Business Days prior to each Remittance
Date.
The Servicer shall prepare and file any and all information statements
or other filings required to be delivered to any governmental taxing authority
or to Owner pursuant to any applicable law with respect to the Mortgage Loans
and the transactions contemplated hereby. In addition, the Servicer shall
provide Owner with such information concerning the Mortgage Loans as is
necessary for Owner to prepare its federal income tax return as Owner may
reasonably request from time to time.
In addition, not more than 60 days after the end of each calendar year,
the Servicer shall furnish to each Person who was a Owner at any time during
such calendar year an annual statement in accordance with the requirements of
applicable federal income tax law as to the aggregate of remittances for the
applicable portion of such year.
Section 5.03 MONTHLY ADVANCES BY THE SERVICER.
Not later than the close of business on the Business Day preceding each
Remittance Date, the Servicer shall 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 is liquidated (including Insurance
Proceeds, REO Disposition Proceeds or Condemnation Proceeds) with respect to the
Mortgage Loan unless the Servicer deems such advance to be nonrecoverable. In
such event, the Servicer shall deliver to the Owner an Officer's Certificate of
the Servicer 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.
Section 5.04 LIQUIDATION REPORTS.
Upon the foreclosure sale of any Mortgaged Property or the acquisition
thereof by the Owner pursuant to a deed-in-lieu of foreclosure, the Servicer
shall submit to the Owner a liquidation report with respect to such Mortgaged
Property. The Servicer shall also provide reports on the status of REO Property
containing such information as Owner may reasonably require.
ARTICLE VI
GENERAL SERVICING PROCEDURES
Section 6.01 ASSUMPTION AGREEMENTS.
The Servicer will, to the extent it has knowledge of any conveyance or
prospective conveyance by any Mortgagor of the Mortgaged Property (whether by
absolute conveyance or by contract of sale, and whether or not the Mortgagor
remains or is to remain liable under the Mortgage Note and/or the Mortgage),
exercise its rights to accelerate the maturity of such Mortgage Loan under any
"due-on-sale" clause to the extent permitted by law; provided, however, that the
Servicer shall not exercise any such rights if prohibited by law or the terms of
the Mortgage Note from doing so or if the exercise of such rights would impair
or threaten to impair any recovery under the related Primary Mortgage Insurance
Policy, if any. If the Servicer reasonably believes it is unable under
applicable law to enforce such "due-on-sale" clause, the Servicer, with the
approval of the Owner (such approval not to be unreasonably withheld), will
enter into an assumption agreement with the person to whom the Mortgaged
Property has been conveyed or is proposed to be conveyed, pursuant to which such
person becomes liable under the Mortgage Note and, to the extent permitted by
applicable state law, the Mortgagor remains liable thereon. Where an assumption
is allowed pursuant to this Section 6.01, the Servicer, with the prior consent
of the Owner 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.
Owner shall be deemed to have consented to any assumption for which Owner was
given notification and requested to consent, but for which neither a consent nor
an objection was given by Owner within five Business Days of such notification.
In connection with any such assumption or substitution of liability,
the Servicer shall follow the underwriting practices and procedures of the FNMA
Guides. 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 Servicer 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 Servicer shall notify the Owner that any
such substitution of liability or assumption agreement has been completed by
forwarding to the Owner 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 Servicer.
Notwithstanding the foregoing paragraphs of this Section or any other
provision of this Agreement, the Servicer 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
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 Servicer will immediately notify the Owner 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 Owner. The Owner 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 Servicer shall promptly
prepare and deliver to the Owner the requisite satisfaction or release. No later
than three Business Days following its receipt of such satisfaction or release,
the Owner 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.
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 Owner may have under the mortgage
instruments, the Servicer, upon written demand, shall remit within two Business
Days to the Owner the then outstanding principal balance of the related Mortgage
Loan by deposit thereof in the Custodial Account. The Servicer shall 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, the Owner shall, upon request of the Servicer and
delivery to the Owner of a servicing receipt signed by a Servicing Officer,
release the portion of the Mortgage File held by the Owner to the Servicer. Such
servicing receipt shall obligate the Servicer to return the related Mortgage
documents to the Owner 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 Owner a certificate of a Servicing Officer certifying as to the
name and address of the Person to which such Mortgage File or such document was
delivered and the purpose or purposes of such delivery. Upon receipt of a
certificate of a Servicing Officer stating that such Mortgage Loan was
liquidated, the servicing receipt shall be released by the Owner to the
Servicer.
Section 6.03 SERVICING COMPENSATION.
As compensation for its services hereunder, the Servicer shall be
entitled to withdraw from the Custodial Account (to the extent of interest
payments collected on the Mortgage Loans) or to retain from interest payments
collected on the Mortgage Loans, the amounts provided for as the Servicer's
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 retained by the
Servicer 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
Servicer shall be required to pay all expenses incurred by it in connection with
its servicing activities hereunder and shall not be entitled to reimbursement
therefor except as specifically provided for.
Section 6.04 ANNUAL STATEMENT AS TO COMPLIANCE.
The Servicer will deliver to the Master Servicer on or before March 15,
2005, and by March 15 of each year thereafter, an Officer's Certificate stating
that (i) a review of the activities of the Company during the preceding calendar
year and of performance under this Agreement has been made under such officers'
supervision, (ii) Servicer has fully complied with the provisions of this
Agreement and (iii) to the best of such officers' knowledge, based on such
review, Servicer has fulfilled all of its obligations under this Agreement
throughout such year, or, if there has been a default in the fulfillment of any
such obligation, specifying each such default known to such officer and the
nature and status of cure provisions thereof. Copies of such statement shall be
provided by the Servicer to the Owner upon request.
Section 6.05 ANNUAL INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS' SERVICING
REPORT.
On or before March 15, 2005, and by March 15 of each year thereafter,
the Servicer at its expense shall cause a firm of independent public accountants
which is a member of the American Institute of Certified Public Accountants to
furnish a statement to the Owner 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 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 Attestation 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. Copies of such
statement shall be provided by the Servicer to the Owner. In addition, on an
annual basis, Servicer shall provided Owner with copies of its audited financial
statements upon execution by Owner of an agreement to keep confidential the
contents of such financial statements.
Section 6.06 OWNER'S RIGHT TO EXAMINE SERVICER RECORDS.
The Owner shall have the right to examine and audit upon reasonable
notice to the Servicer, during business hours or at such other times as might be
reasonable under applicable circumstances, any and all of the books, records,
documentation or other information of the 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.
The Servicer shall provide to the Owner and any supervisory agents or
examiners representing a state or federal governmental agency having
jurisdiction over the Owner, 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.
SECTION 6.07 ANNUAL CERTIFICATION.
(a) For so long as the Mortgage Loans are being master serviced by the
Master Servicer in a securitization transaction, by March 15th of each year (or
if not a Business Day, the immediately preceding Business Day) an officer of the
Servicer shall execute and deliver an Officer's Certificate to the Master
Servicer for the benefit of such Master Servicer and its officers, directors and
affiliates, in the form attached hereto as EXHIBIT G.
(b) The Servicer shall indemnify and hold harmless the Master Servicer
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 breach by the Servicer
or any of its officers, directors, agents or affiliates of its obligations under
this Section 6.07 or the negligence, bad faith or willful misconduct of the
Servicer in connection therewith. If the indemnification provided for herein is
unavailable or insufficient to hold harmless the Master Servicer, then the
Servicer agrees that it shall contribute to the amount paid or payable by the
Master Servicer as a result of the losses, claims, damages or liabilities of the
Master Servicer in such proportion as is appropriate to reflect the relative
fault of the Master Servicer's obligations under this Section 6.07 or the
Servicer's negligence, bad faith or willful misconduct in connection therewith
ARTICLE VII
REPORTS TO BE PREPARED BY SERVICER
Section 7.01 SERVICER SHALL PROVIDE INFORMATION AS REASONABLY REQUIRED.
The Servicer shall furnish to the Owner 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 Owner, 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
Owner all such reports or information to be as provided by and in accordance
with such applicable instructions and directions as the Owner may reasonably
request in relation to this Agreement or the performance of the Servicer under
this Agreement. The Servicer agrees to execute and deliver all such instruments
and take all such action as the Owner, 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 Owner may make
available to a prospective Owner 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 Servicer shall furnish promptly
to the Owner or a prospective Owner copies of the statements specified above;
provided, however, that prior to furnishing such statements or information to
any prospective Owner, the Servicer may require such prospective Owner to
execute a confidentiality agreement in a form satisfactory to the Servicer.
The Servicer shall make reasonably available to the Owner or any
prospective Owner a knowledgeable financial or accounting officer for the
purpose of answering questions and to permit any prospective Owner to inspect
the Servicer's servicing facilities for the purpose of satisfying such
prospective Owner that the Servicer has the ability to service the Mortgage
Loans as provided in this Agreement.
ARTICLE VIII
THE SERVICER
Section 8.01 INDEMNIFICATION; THIRD PARTY CLAIMS.
The Servicer agrees to indemnify the Owner 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
Owner may sustain in any way related to the failure of 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
Servicer agrees to indemnify the Owner 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 Owner may
sustain in any way related to the breach of a representation or warranty set
forth in Section 3.01 of this Agreement. The Servicer shall immediately notify
the Owner if a claim is made by a third party against Servicer with respect to
this Agreement or the Mortgage Loans, assume (with the consent of the Owner) 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 Owner in respect of such claim. The Servicer shall
follow any written instructions received from the Owner in connection with such
claim. The Owner shall promptly reimburse the Servicer 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 Section 3.01, or the gross negligence, bad faith or
willful misconduct of Servicer. The provisions of this Section 8.01 shall
survive termination of this Agreement.
Section 8.02 MERGER OR CONSOLIDATION OF THE SERVICER.
The Servicer will keep in full effect its existence, rights and
franchises as a corporation under the laws of the state of its incorporation
except as permitted herein, and will obtain and preserve its qualification to do
business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans and to perform
its duties under this Agreement.
Any Person into which the 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 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, SAIF and/or BIF, or which is a
HUD-approved mortgagee whose primary business is in origination and servicing of
first lien mortgage loans, and (iii) who is a FNMA or FHLMC approved
seller/servicer in good standing.
Section 8.03 LIMITATION ON LIABILITY OF THE SERVICER AND OTHERS.
Neither the Servicer nor any of the officers, employees or agents of
the Servicer shall be under any liability to the Owner 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 Servicer 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 Servicer and any officer, employee or agent of
the Servicer may rely in good faith on any document of any kind prima facie
properly executed and submitted by the Owner respecting any matters arising
hereunder. The Servicer shall not be under any obligation to appear in,
prosecute or defend any legal action which is not incidental to its duties to
service the Mortgage Loans in accordance with this Agreement and which in its
reasonable opinion may involve it in any expenses or liability; provided,
however, that the Servicer may, with the consent of the Owner, 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 Owner will be
liable, and the Servicer shall be entitled to be reimbursed therefor from the
Owner upon written demand.
Section 8.04 SERVICER NOT TO ASSIGN OR RESIGN.
The Servicer shall not assign this Agreement or resign from the
obligations and duties hereby imposed on it except by mutual consent of the
Servicer and the Owner or upon the determination that its duties hereunder are
no longer permissible under applicable law and such incapacity cannot be cured
by the Servicer. Any such determination permitting the resignation of the
Servicer shall be evidenced by an Opinion of Counsel to such effect delivered to
the Owner which Opinion of Counsel shall be in form and substance acceptable to
the Owner. No such resignation shall become effective until a successor shall
have assumed the Servicer's responsibilities and obligations hereunder in the
manner provided in Section 11.01.
Section 8.05 NO TRANSFER OF SERVICING.
With respect to the retention of the Servicer to service the Mortgage
Loans hereunder, the Servicer acknowledges that the Owner has acted in reliance
upon the Servicer's independent status, the adequacy of its servicing
facilities, plan, personnel, records and procedures, its integrity, reputation
and financial standing and the continuance thereof. Without in any way limiting
the generality of this Section, the Servicer shall not either assign this
Agreement or the servicing hereunder or delegate its rights or duties hereunder
or any portion thereof, or sell or otherwise dispose of all or substantially all
of its property or assets, without the prior written approval of the Owner,
which consent shall be granted or withheld in the Owner's sole discretion.
Without in any way limiting the generality of this Section 8.05, in the
event that the Servicer either shall assign this Agreement or the servicing
responsibilities hereunder 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 Owner, then the Owner shall have the right to
terminate this Agreement as set forth in Section 10.02, without any payment of
any penalty or damages and without any liability whatsoever to the Servicer
(other than with respect to accrued but unpaid Servicing Fees and Servicing
Advances remaining unpaid) or any third party.
ARTICLE IX
DEFAULT
Section 9.01 EVENTS OF DEFAULT.
In case one or more of the following Events of Default by the Servicer
shall occur and be continuing, that is to say:
(i) any failure by the Servicer to remit to the Owner any payment
required to be made under the terms of this Agreement which continues unremedied
for a period of two Business Days after the earlier of the date upon which
written notice of such failure, requiring the same to be remedied, shall have
been given to the Servicer by the Owner or the date upon which such non-payment
is discovered by Servicer; or
(ii) failure on the part of the Servicer duly to observe or perform in
any material respect any other of the covenants or agreements on the part of the
Servicer set forth in this Agreement which continues unremedied for a period of
thirty days (except that such number of days shall be fifteen in the case of a
failure to pay any premium for any insurance policy required to be maintained
under this Agreement) after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Servicer by the
Owner; or
(iii) a decree or order of a court or agency or supervisory authority
having jurisdiction for the appointment of a conservator or receiver or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshalling of
assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Servicer and
such decree or order shall have remained in force undischarged or unstayed for a
period of sixty days; or
(iv) the Servicer shall consent to the appointment of a conservator or
receiver or liquidator in any insolvency, bankruptcy, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or relating to
the Servicer or of or relating to all or substantially all of its property; or
(v) the Servicer shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its obligations; or
(vi) Servicer ceases to be approved by both FNMA and FHLMC as a
mortgage loan Servicer and servicer for more than thirty days; or
(vii) the Servicer attempts to assign its right to servicing
compensation hereunder or the Servicer attempts, without the consent of the
Owner, to sell or otherwise dispose of all or substantially all of its property
or assets or to assign this Agreement or the servicing responsibilities
hereunder or to delegate its duties hereunder or any portion thereof; or
(viii) the 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 perform its obligations hereunder;or
(ix) the Servicer fails to meet the eligibility criteria set forth in
the last sentence of Section 8.02; or
(x) failure by the Servicer to duly perform within the required time
period, its obligations under Sections 6.04, 6.05 and 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 Servicer by any party to this Agreement or by any Master
Servicer responsible for master servicing the Mortgage Loans pursuant to a
securitization of such Mortgage Loans.
Then, and in each and every such case, so long as an Event of Default
shall not have been remedied, the Owner, by notice in writing to the Servicer
may, in addition to whatever rights the Owner may have under Sections 3.03 and
8.01 and at law or equity or to damages, including injunctive relief and
specific performance, terminate all the rights and obligations of the Servicer
under this Agreement and in and to the Mortgage Loans and the proceeds thereof
without compensating the Servicer for the same. On or after the receipt by the
Servicer of such written notice, all authority and power of the Servicer under
this Agreement, whether with respect to the Mortgage Loans or otherwise, shall
pass to and be vested in the successor appointed pursuant to Section 11.01. Upon
written request from the Owner, the Servicer shall prepare, execute and deliver,
any and all documents and other instruments, place in such successor's
possession all Mortgage Files, and do or accomplish all other acts or things
necessary or appropriate to effect the purposes of such notice of termination,
whether to complete the transfer and endorsement or assignment of the Mortgage
Loans and related documents, or otherwise, at the Servicer's sole expense. The
Servicer agrees to cooperate with the Owner and such successor in effecting the
termination of the Servicer's responsibilities and rights hereunder, including,
without limitation, the transfer to such successor for administration by it of
all cash amounts which shall at the time be credited by the Servicer to the
Custodial Account or Escrow Account or thereafter received with respect to the
Mortgage Loans or any REO Property.
Section 9.02 WAIVER OF DEFAULTS.
The Owner may waive only by written notice any default by the Servicer
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.
ARTICLE X
TERMINATION
Section 10.01 TERMINATION.
The respective obligations and responsibilities of the Servicer shall
terminate upon: (i) the later of the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan or the disposition of
all REO Property and the remittance of all funds due hereunder; or (ii) by
mutual consent of the Servicer and the Owner in writing; or (iii) termination
with or without cause under the terms of this Agreement.
Section 10.02 TERMINATION WITHOUT CAUSE.
The Owner may, at its sole option, terminate any rights the Servicer
may have hereunder, without cause, upon written notice. Any such notice of
termination shall be in writing and delivered to the Servicer as provided in
Section 11.05 of this Agreement. In the event of such termination, the Owner
agrees to pay, as liquidated damages, a sum equal to a percentage of the
aggregate unpaid principal balance of the Mortgage Loans, as follows: three
percent (3.0%) for any Mortgage Loans having Mortgaged Property in the states of
New York, New Jersey or Connecticut two percent (2.0%) for all remaining
Mortgage Loans.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 SUCCESSOR TO THE SERVICER.
Prior to termination of Servicer's responsibilities and duties under
this Agreement pursuant to Sections 4.13, 8.04, 9.01, 10.01 (ii) or (iii) or
10.02, the Owner shall (i) succeed to and assume all of the Servicer'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 Servicer under this Agreement prior to the
termination of Servicer's responsibilities, duties and liabilities under this
Agreement. In connection with such appointment and assumption, the Owner may
make such arrangements for the compensation of such successor out of payments on
Mortgage Loans as the Owner and such successor shall agree. In the event that
the Servicer's duties, responsibilities and liabilities under this Agreement
should be terminated pursuant to the aforementioned Sections, the Servicer shall
discharge such duties and responsibilities during the period from the date it
acquires knowledge of such termination until the effective date thereof with the
same degree of diligence and prudence which it is obligated to exercise under
this Agreement, and shall take no action whatsoever that might impair or
prejudice the rights or financial condition of its successor. The resignation or
removal of Servicer 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 Servicer of the representations and warranties
made pursuant to Sections 3.01, 3.02 and 3.03 and the remedies available to the
Owner 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
Servicer notwithstanding any such resignation or termination of the Servicer, or
the termination of this Agreement.
Any successor appointed as provided herein shall execute, acknowledge
and deliver to the Servicer and to the Owner an instrument accepting such
appointment, whereupon such successor shall become fully vested with all the
rights, powers, duties, responsibilities, obligations and liabilities of the
Servicer, with like effect as if originally named as a party to this Agreement.
Any termination or resignation of the Servicer or this Agreement pursuant to
Section 4.13, 8.04, 9.01, 10.01, or 10.02 shall not affect any claims that the
Owner may have against the Servicer arising prior to any such termination or
resignation.
The Servicer shall promptly deliver to the successor the funds in the
Custodial Account and the Escrow Account and the Mortgage Files and related
documents and statements held by it hereunder and the Servicer shall account for
all funds. The Servicer 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 Servicer. The successor shall make
arrangements as it may deem appropriate to reimburse the Servicer for
unrecovered Servicing Advances which the successor retains hereunder and which
would otherwise have been recovered by the Servicer pursuant to this Agreement
but for the appointment of the successor servicer.
Upon a successor's acceptance of appointment as such, the Servicer
shall notify by mail the Owner of such appointment.
Section 11.02 AMENDMENT.
This Agreement may be amended from time to time by the Servicer and the
Owner by written agreement signed by the Servicer and the Owner.
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 Servicer
at the Servicer's expense on direction of the Owner accompanied by an opinion of
counsel to the effect that such recordation materially and beneficially affects
the interest of the Owner or is necessary for the administration or servicing of
the Mortgage Loans.
Section 11.04 GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York without giving effect to principles of
conflicts of laws and 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 Servicer:
Chase Manhattan Mortgage Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
Chase Manhattan Mortgage Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
(ii) if to the Owner:
EMC Mortgage Corporation
Mac ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇, President
with copy to:
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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 which
is prohibited or which is held to be void or unenforceable shall be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof. Any part, provision, representation or warranty of
this Agreement which is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall be ineffective, as to such jurisdiction,
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof. If the invalidity of any
part, provision, representation or warranty of this Agreement shall deprive any
party of the economic benefit intended to be conferred by this Agreement, the
parties shall negotiate, in good faith, to develop a structure the economic
effect of which is nearly as possible the same as the economic effect of this
Agreement without regard to such invalidity.
Section 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.
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 Owner, provided such information is identified as confidential non-public
information.
Section 11.11 ASSIGNMENT BY OWNER.
The Owner shall have the right, without the consent of the Servicer, 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 Owner hereunder, by executing an Assignment and Assumption Agreement
substantially in the form of Exhibit C hereto and the assignee or designee shall
accede to the rights and obligations hereunder of the Owner with respect to such
Mortgage Loans. In no event shall Owner sell a partial interest in any Mortgage
Loan without the written consent of Servicer, which consent shall not be
unreasonably denied. All references to the Owner in this Agreement shall be
deemed to include its assignee or designee.
Section 11.12 NO PARTNERSHIP.
Nothing herein contained shall be deemed or construed to create a
co-partnership or joint venture between the parties hereto and the services of
the Servicer shall be rendered as an independent contractor and not as agent for
Owner.
Section 11.13 EXECUTION: SUCCESSORS AND ASSIGNS.
This Agreement may be executed in one or more counterparts and by the
different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together, shall
constitute one and the same agreement. Subject to Section 8.04, this Agreement
shall inure to the benefit of and be binding upon the Servicer and the Owner and
their respective successors and assigns.
Section 11.14 ENTIRE AGREEMENT.
The Servicer acknowledges that no representations, agreements or
promises were made to the Servicer by the Owner or any of its employees other
than those representations, agreements or promises specifically contained
herein. This Agreement sets forth the entire understanding between the parties
hereto and shall be binding upon all successors of both parties.
Section 11.15. NO SOLICITATION.
The Servicer agrees that it will not take any action or permit or cause
any action to be taken by any of its agents or affiliates, or by any independent
contractors on the Servicer's behalf, to personally, by telephone or mail,
solicit the borrower or obligor under any Mortgage Loan to refinance the
Mortgage Loan, in whole or in part, without the prior written consent of the
Owner. Notwithstanding the foregoing, it is understood and agreed that
promotions undertaken by the Servicer or any affiliate of the Servicer which are
directed to the general public at large, or segments thereof, provided that no
segment shall consist primarily of the Mortgage Loans, including, without
limitation, mass mailing based on commercially acquired mailing lists,
newspaper, radio and television advertisements shall not constitute solicitation
under this Section 11.15. This Section 11.15 shall not be deemed to preclude the
Servicer or any of its affiliates from soliciting any Mortgagor for any other
financial products or services.
Section 11.18. COOPERATION OF SERVICER WITH A RECONSTITUTION.
The Servicer and the Owner agree that with respect to some or all of
the Mortgage Loans, on one or more dates (each a "Reconstitution Date") at the
Owner's sole option, the Owner 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 Owners 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 Servicer agrees to execute in connection with any agreements among
the Owner, the Servicer, and any servicer in connection with a Whole Loan
Transfer, a Servicer'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 Servicer than
are contained in this Agreement.
With respect to each Whole Loan Transfer and each Pass-Through Transfer
entered into by the Owner, the Servicer agrees (1) to cooperate fully with the
Owner and any prospective Owner with respect to all reasonable requests and due
diligence procedures; (2) to execute, deliver and perform all Reconstitution
Agreements required by the Owner; (3) to restate the representations and
warranties set forth in this Agreement. In that connection, the Servicer 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 Servicer,
whether through letters of its auditors and counsel or otherwise, as the Owner
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
Servicer as are reasonably agreed upon by the Servicer and the Owner or any such
other participant. The Owner shall be responsible for the costs relating to the
delivery of such information.
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 with respect thereto this Agreement shall remain in full force
and effect.
Section 11.19. THIRD PARTY BENEFICIARY.
For purposes of this Agreement, any Master Servicer shall be considered
a third party beneficiary to this Agreement entitled to all the rights and
benefits accruing to any Master Servicer herein as if it were a direct party to
this Agreement
IN WITNESS WHEREOF, the Servicer and the Owner have caused their names
to be signed hereto by their respective officers thereunto duly authorized as of
the day and year first above written.
EMC MORTGAGE CORPORATION
Owner
By:________________________
Name:
Title:
CHASE MANHATTAN MORTGAGE
CORPORATION
Servicer
By: _______________________
Name:
Title:
EXHIBIT A
CUSTODIAL ACCOUNT LETTER AGREEMENT
______________, 2004
To: _________________
__________________________
__________________________
(the "Depository")
As "Servicer" under the Servicing Agreement, dated as of February 1,
2004 (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 "Chase Manhattan Mortgage Corporation, in trust for the [Owner],
Owner of Whole Loan Mortgages and various Mortgagors". All deposits in the
account shall be subject to withdrawal therefrom by order signed by the
Servicer. This letter is submitted to you in duplicate. Please execute and
return one original to us.
CHASE MANHATTAN MORTGAGE CORPORATION
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.
[ ]
(name of depository)
By:____________________________
Name:__________________________
Title:_________________________
EXHIBIT B
ESCROW ACCOUNT LETTER AGREEMENT
_____________, 2004
To: _________________
__________________________
__________________________
(the "Depository")
As "Servicer" under the Servicing Agreement, dated as of February 1,
2004 (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 "Chase Manhattan Mortgage Corporation, in trust for the [Owner],
Owner of Whole Loan Mortgages, and various Mortgagors." All deposits in the
account shall be subject to withdrawal therefrom by order signed by the
Servicer. This letter is submitted to you in duplicate. Please execute and
return one original to us.
CHASE MANHATTAN MORTGAGE
CORPORATION
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.
[ ]
(name of depository)
By:____________________________
Name:__________________________
Title:_________________________
EXHIBIT C
FORM OF ASSIGNMENT AND ASSUMPTION
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT, dated
___________________,between__________________,a
_____________________corporation("Assignor"),and_____________________, a
__________________ corporation ("Assignee"):
For and in consideration of the sum of TEN DOLLARS ($10.00) and other
valuable consideration the receipt and sufficiency of which hereby are
acknowledged, and of the mutual covenants herein contained, the parties hereto
hereby agree as follows:
1. The Assignor hereby grants, transfers and assigns to Assignee all of
the right, title and interest of Assignor, as Owner, in, to and under (a) those
certain Mortgage Loans listed on Exhibit A attached hereto (the "Mortgage
Loans") and (b) that certain Servicing Agreement, (the "Servicing Agreement"),
dated as of February 1, 2004 by and among EMC Mortgage Corporation ("Owner") and
Chase Manhattan Mortgage Corporation ("Servicer") with respect to the Mortgage
Loans.
The Assignor specifically reserves and does not assign to the Assignee
hereunder any and all right, title and interest in, to and under and all
obligations of the Assignor with respect to any mortgage loans subject to the
Servicing Agreement which are not the Mortgage Loans set forth on Exhibit A
attached hereto and are not the subject of this Assignment and Assumption
Agreement.
2. The Assignor warrants and represents to, and covenants with, the
Assignee that:
a. The Assignor is the lawful owner of the Mortgage Loans with
the full right to transfer the Mortgage Loans free from any and all claims and
encumbrances whatsoever;
b. The Assignor has not received notice or, and has no
knowledge of, any offsets, counterclaims or other defenses available to the
Servicer with respect to the Servicing Agreement or the Mortgage Loans;
c. The Assignor has not waived or agreed to any waiver under,
or agreed to any amendment or other modification of, the Servicing Agreement or
the Mortgage Loans, including without limitation the transfer of the servicing
obligations under the Servicing Agreement. The Assignor has no knowledge of, and
has not received notice of, any waivers under or amendments or other
modifications of, or assignments of rights or obligations under or defaults
under, the Servicing Agreement, or the Mortgage Loans; and
d. Neither the Assignor nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the Mortgage Loans,
any interest in the Mortgage Loans or any other similar security to, or
solicited any offer to buy or accept a transfer, pledge or other disposition of
the Mortgage Loans, any interest in the Mortgage Loans or any other similar
security from, or otherwise approached or negotiated with respect to the
Mortgage Loans, any interest in the Mortgage Loans or any other similar security
with, any person in any manner, or made by general solicitation by means of
general advertising or in any other manner, or taken any other action which
would constitute a distribution of the Mortgage Loans under the Securities Act
of 1933 (the "1933 Act") or which would render the disposition of the Mortgage
Loans a violation of Section 5 of the 1933 Act or require registration pursuant
thereto.
3. The Assignee warrants and represents to, and covenants with, the
Assignor and the Servicer that:
a. The Assignee is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation, and has all requisite corporate power and authority to acquire,
own and purchase the Mortgage Loans;
b. The Assignee has full corporate power and authority to
execute, deliver and perform under this Assignment and Assumption Agreement, and
to consummate the transactions set forth herein. The execution, delivery and
performance of the Assignee of this Assignment and Assumption 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
and Assumption Agreement has been duly executed and delivered by the Assignee
and constitutes the valid and legally binding obligation of the Assignee
enforceable against the Assignee in accordance with its respective terms;
c. To the best of Assignee's knowledge, 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 and Assumption Agreement, or the consummation by it of the
transactions contemplated hereby;
d. The Assignee agrees to be bound, as Owner, by all of the
terms, covenants and conditions of the Servicing Agreement and the Mortgage
Loans, and from and after the date hereof, the Assignee assumes for the benefit
of the Servicer and the Assignor all of the Assignor 's obligations as Owner
thereunder, with respect to the Mortgage Loans;
e. The Assignee understands that the Mortgage Loans have not
been registered under the 1933 Act or the securities laws of any state;
f. The purchase price being paid by the Assignee for the
Mortgage Loans is in excess of $250,000 and will be paid by cash remittance of
the full purchase price within sixty (60) days of the sale;
g. The Assignee is acquiring the Mortgage Loans for investment
for its own account only and not for any other person;
h. The Assignee considers itself a substantial, sophisticated
institutional investor having such knowledge in financial and business matters
that it is capable of evaluating the merits and the risks of investment in the
Mortgage Loans;
i. The Assignee has been furnished with all information
regarding the Mortgage Loans that it has requested from the Assignor or the
Servicer;
j. Neither the Assignee nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the Mortgage Loans,
an interest in the Mortgage Loans or any other similar security to, or solicited
any offer to buy or accept a transfer, pledge or other disposition of the
Mortgage Loans, any interest in the Mortgage Loans or any other similar security
from, or otherwise approached or negotiated with respect to the Mortgage Loans,
any interest in the Mortgage Loans or any other similar security with, any
person in any manner, or made any general solicitation by means of general
advertising or in any other manner, or taken any other action which would
constitute a distribution of the Mortgage Loans under the 1933 Act or which
would render the disposition of the Mortgage Loans a violation of Section 5 of
the 1933 Act or require registration pursuant thereto, nor will it act, nor has
it authorized or will it authorize any person to act, in such manner with
respect to the Mortgage Loans; and
k. Either: (1) the Assignee is not an employee benefit plan
("Plan") within the meaning of section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA") or a plan (also "Plan") within the
meaning of section 4975(e)(1) of the Internal Revenue Code of 1986 ("Code"), and
the Assignee is not directly or indirectly purchasing the Mortgage Loans on
behalf of, investment manager of, as named fiduciary of, as Trustee of, or with
assets of, a Plan; or (2) the Assignee's purchase of the Mortgage Loans will not
result in a prohibited transaction under section 406 of ERISA or section 4975 of
the Code.
Distributions shall be made by wire transfer of immediately available
funds to _____________________________ for the account of
_________________________________________ account number
___________________________________________________. Applicable statements
should be mailed to ___________________________________________________________
The Assignor's address for purposes for all notices and correspondence related
to the Mortgage Loans and this Agreement is:
_________________________________________
_________________________________________
Attention: ______________________________
IN WITNESS WHEREOF, the parties have caused this Assignment and
Assumption to be executed by their duly authorized officers as of the date first
above written.
_____________________________ ______________________________
Assignor Assignee
By:______________________ By:___________________________
Its:_____________________ Its:__________________________
Taxpayer Identification Taxpayer Identification
Number:__________________ Number:_______________________
Acknowledged:
Chase Manhattan Mortgage Corporation
By:___________________________
Its:__________________________
EXHIBIT D
FORM OF TRIAL BALANCE
EXHIBIT E
MORTGAGE LOAN SCHEDULE
EXHIBIT F
REQUEST FOR RELEASE OF DOCUMENTS AND RECEIPT
RE: Mortgage Loan #___________________________________
BORROWER:__________________________________________________
PROPERTY: _________________________________________________
Pursuant to a Servicing Agreement (the "Agreement") between the Servicer and the
Owner, the undersigned hereby certifies that he or she is an officer of the
Servicer 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 Servicer has been notified that payment in full has been or will be
escrowed. The Servicer 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 placed in foreclosure and the original
documents are required to proceed with the foreclosure action. The Servicer
hereby certifies that the documents will be returned to the Owner 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 Servicer all original mortgage documents in
your possession relating to this loan.
Dated:_________________
By:________________________________
Signature
________________________________
Title
Send documents to:_____________________________________________
__________________________________________________
__________________________________________________
Acknowledgement:
Owner hereby acknowledges that all original documents previously
released on the above captioned mortgage loan have been returned and received by
the Owner.
Dated:________________
By:________________________________
Signature
________________________________
Title
EXHIBIT G
Servicer Form of Back-up Certification
[Name and address of
master servicer]
Re: [name of securitization]
Chase Manhattan Mortgage Corporation, as Servicer hereby certifies to
the Master Servicer that:
1. To our knowledge, the information in the Annual Statement of
Compliance, the Annual Independent Public Accountant's Servicing Report and all
servicing reports, officer's certificates and other information relating to the
servicing of the Mortgage Loans submitted to the Master Servicer 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 light of the
circumstances under which such statements were made, not misleading as of the
last day of the period covered by such reports;
2. To our knowledge, the servicing information required to be provided
to the Master Servicer by the Servicer under the Servicing Agreement has been
provided to the Master Servicer;
3. Based upon the review required by the Servicing Agreement, and
except as disclosed in the Annual Statement of Compliance or the Annual
Independent Public Accountant's Servicing Report, the Servicer has, as of the
last day of the period covered by such reports fulfilled its obligation under
the Servicing Agreement; and
4. The Servicer has disclosed to the Master Servicer 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.
Capitalized terms used but not defined herein have the meanings
ascribed to them in the Servicing Agreement, dated as of February 1, 2004 (the
"Servicing Agreement"), between Chase Manhattan Mortgage Company and EMC
Mortgage Corporation.
Chase Manhattan Mortgage Corporation, as Servicer
By:_________________________________
Name:
Title:
Date:
EXHIBIT H-7
SERVICING AGREEMENT
NATIONAL CITY
This is a Purchase, Warranties and Servicing Agreement, dated as of
October 1, 2001 and is executed between EMC MORTGAGE CORPORATION, as Purchaser
(the "Purchaser"), and NATIONAL CITY MORTGAGE COMPANY (the "Company").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Purchaser has heretofore agreed to purchase from the
Company and the Company has heretofore agreed to sell to the Purchaser, from
time to time, certain Mortgage Loans on a servicing retained basis, pursuant to
the terms of this Agreement and the related Term Sheet.
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;
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 Company 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.
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 New York or Ohio, or (iii) a day on which banks in
the State of New York or Ohio 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, which are expected to be the dates set forth in the related
Confirmation.
CODE: The Internal Revenue Code of 1986, or any successor statute
thereto.
COMPANY: National City Mortgage Company, their 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 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.
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 Company (by an
appraiser who met the requirements of the Company 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 Company 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 "National City
Mortgage Company, 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 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 sub-servicer) or (iii) with an entity which is an institution
whose deposits are insured by the FDIC, the unsecured and uncollateralized
long-term debt obligations of which shall be rated "A2" or higher by Moody's and
"A" or higher by either Standard & Poor's or 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, or (d)
a principal subsidiary of a bank holding company, 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 sub-servicer) and of any
creditors or depositors of the institution in which such account is maintained
or (v) in a separate non-trust account without FDIC 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.
ELIGIBLE INSTITUTION: National City Bank Ohio, or 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 " National City
Mortgage Company, 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.
▇▇▇▇▇▇ 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.
FHLMC: The Federal Home Loan Mortgage Corporation, or any successor
thereto.
FHLMC GUIDE: The FHLMC Single Family Seller/Servicer Guide and all
amendments or additions thereto.
FIDELITY BOND: A fidelity bond to be maintained by the Company pursuant
to Section 4.12.
FIRREA: The Financial Institutions Reform, Recovery, and Enforcement
Act of 1989.
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 PRIMARY MORTGAGE INSURANCE POLICY: Any Primary Mortgage
Insurance Policy for which premiums are paid by the Company.
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.
LIFETIME RATE CAP: As to each 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.
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.
MONTHLY ADVANCE: The aggregate of the advances made by the Company on
any Remittance Date pursuant to Section 5.03.
MONTHLY PAYMENT: The scheduled monthly 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.
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, if any.
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;
(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 the subject
of a Lender Primary Mortgage Insurance Policy and the name of the related
insurance carrier;
(22) a code indicating whether or not the Mortgage Loan is currently
convertible and the conversion spread;
(23) the last Due Date on which a Monthly Payment was actually applied
to the unpaid principal balance of the Mortgage Loan.
(24) product type (i.e. fixed, 3/1, 5/1, etc.);
(25) credit score and/or mortgage score, if applicable;
(26) the Lender Paid Mortgage Insurance Rate;
(27) a code indicating whether or not the Mortgage Loan has a
prepayment penalty and if so, the amount and term thereof; and
(28) the Current Appraised Value of the Mortgage Loan and Current LTV,
if applicable.
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.
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.
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.
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;
(ii) (a) demand or time deposits, federal funds or bankers'
acceptances issued by any depository institution 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;
(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;
(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 investment 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 securities
issued by such corporation and held as Permitted Investments
to exceed 10% of the aggregate outstanding principal balances
of all of the Mortgage Loans and Permitted Investments;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable
on demand or on a specified date not more than one year after
the date of issuance thereof) which are rated in one of the
two highest rating categories by each Rating Agency at the
time of such investment;
(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
(vii) any money market funds the collateral of which consists
of 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 (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.
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 obligations underlying such instrument or
if such security provides for payment of both principal and interest with a
yield to maturity 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.
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 Company 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: EMC Mortgage Corporation, its successors in interest and
assigns.
QUALIFIED APPRAISER: An appraiser, duly appointed by the Company, 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 ▇▇▇▇▇▇
Mae, 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 FHLMC.
RATING AGENCY: ▇▇▇▇▇'▇ Investors Service, 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.
REMITTANCE DATE: The 18th day of any month, beginning with the First
Remittance Date, or if such 18th day is not a Business Day, the first Business
Day immediately preceding such 18th day.
REO DISPOSITION: The final sale by the Company of any REO Property.
REO DISPOSITION PROCEEDS: Amounts received by the Company in connection
with a related REO Disposition.
REO PROPERTY: A Mortgaged Property acquired by the Company on behalf of
the Purchaser as described in Section 4.13.
REPURCHASE PRICE: With respect to any Mortgage Loan, a price equal to
(i) the product of the greater of 100% or the percentage of par as stated in the
Confirmation multiplied by the Stated Principal Balance of such Mortgage Loan on
the repurchase date, plus (ii) 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, (iii) third party expenses incurred in connection with the
transfer of the Mortgage Loan being repurchased; 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.
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 Company of its servicing
obligations, including, but not limited to, the cost of (a) the preservation,
restoration and protection of the Mortgaged Property, (b) any enforcement,
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 Company 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 Company 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.
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 Company, 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 related Term Sheet.
SERVICING FILE: With respect to each Mortgage Loan, the file retained
by the Company 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 Company involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name appears on a list of servicing officers furnished by the Company to the
Purchaser upon request, as such list may from time to time be amended.
STATED PRINCIPAL BALANCE: As to each Mortgage Loan 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.
SUBSERVICER: Any subservicer which is subservicing the Mortgage Loans
pursuant to a Subservicing Agreement. Any subservicer shall meet the
qualifications set forth in Section 4.01.
SUBSERVICING AGREEMENT: An agreement between the Company and a
Subservicer, if any, for the servicing of the Mortgage Loans.
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 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.
ARTICLE II
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, with
servicing retained by the Company. 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 the
Company or any successor servicer 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 deposit any such prepaid amounts
into the Custodial Account, which account is established for the benefit of the
Purchaser for subsequent remittance by the Company to the Purchaser.
Section 2.03 SERVICING OF MORTGAGE LOANS.
Simultaneously with the execution and delivery of each Term Sheet, the
Company does hereby agree to directly 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 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 Company is at the will of
the Purchaser, for the sole purpose of servicing the related Mortgage Loan, and
such retention and possession by the Company is in a custodial capacity only.
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 shall be appropriately identified in the Company's
computer system to clearly reflect the ownership of the Mortgage Loans by the
Purchaser. The Company shall 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 Company'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.
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 maintaining, and shall maintain, a complete
set of books and records for the Mortgage Loans that shall be appropriately
identified in the Company's computer system to clearly reflect the ownership of
the Mortgage Loan by the Purchaser. In particular, the Company shall maintain in
its possession, available for inspection by the Purchaser, or its designee and
shall deliver to the Purchaser upon demand, evidence of compliance with all
federal, state and local laws, rules and regulations, and requirements of ▇▇▇▇▇▇
▇▇▇ or FHLMC, 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 FHLMC, 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 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 to any supervisory
agents or examiners that regulate Purchaser, including but not limited to, 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 keep at its servicing office books and records in
which, subject to such reasonable regulations as it may prescribe, the Company
shall note transfers of Mortgage Loans. No transfer of a Mortgage Loan 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, provided, however, that 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 hereto executed by the
transferee shall have been delivered to the Company. The Purchaser also shall
advise the Company of the transfer. Upon receipt of notice of the transfer, the
Company shall ▇▇▇▇ its books and records to reflect the ownership of the
Mortgage Loans of such assignee, and the previous Purchaser shall be released
from its obligations hereunder with respect to the Mortgage Loans sold or
transferred.
Section 2.07 DELIVERY OF MORTGAGE LOAN DOCUMENTS.
The Company shall deliver and release 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), (9) and (16) in Exhibit A hereto shall be delivered by the
Company 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 may have in its possession,
shall be retained by the Company in trust for the Purchaser. If the Company
cannot deliver 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 120 days from the related Closing Date, deliver 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 120 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
deliver 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
180 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 effect delivery as soon as
possible thereafter, provided that if such documents are not delivered by the
270th 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.
The Company shall pay 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 prepare,
in recordable form, all assignments of mortgage necessary to assign the Mortgage
Loans to Purchaser, or its designee. Company shall be responsible for recording
the assignments of mortgage.
Company shall provide an original or duplicate 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 forward to the Purchaser, or its designee, original
documents evidencing an assumption, modification, consolidation or extension of
any Mortgage Loan entered into in accordance with Section 4.01 or 6.01 within
one week of their execution; provided, however, that the Company shall provide
the Purchaser, or its designee, with 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, 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 no longer requires possession of the document, and provided that during
the time that any such documentation is held by the Company, 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 pursuant to this paragraph.
Section 2.08 QUALITY CONTROL PROCEDURES.
The Company must have 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
must be capable of evaluating and monitoring the overall quality of its loan
production and servicing activities. The program is 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 Principal Prepayment is made by a Mortgagor on or
prior to sixty (60) days 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 Company.
In the event any of the first two (2) 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, 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 Ohio 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;
(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,
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 origination or 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;
(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 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 and servicing practices used by the Company and any
prior originator or 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 origination and 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 Company, on behalf of an
investor, is entitled to collect, all such payments are in the possession of, or
under the control of, the Company, and there exist no deficiencies in connection
therewith for which customary arrangements for repayment thereof have not been
made. All escrow payments have been collected in full compliance with state and
federal law 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) Company is an approved seller/servicer of residential mortgage
loans for ▇▇▇▇▇▇ Mae, FHLMC and HUD, with such facilities, procedures and
personnel necessary for the sound servicing of such mortgage loans. The Company
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 sell mortgage loans to and service mortgage loans for ▇▇▇▇▇▇ ▇▇▇ and FHLMC
and no event has occurred which would make Company unable to comply with
eligibility requirements or which would require notification to either ▇▇▇▇▇▇
Mae or FHLMC;
(k) The Company does not believe, nor does it have any cause or reason
to believe, that it cannot perform each and every covenant 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;
(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 performing such services and that the
entire Servicing Fee shall be treated by the Company, for accounting and tax
purposes, as compensation for the servicing and administration of the Mortgage
Loans pursuant to this Agreement. 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 of its
parent, 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) The Company has not dealt with any broker, investment banker, agent
or other person that may be entitled to any commission or compensation in
connection with the sale of the Mortgage Loans;
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:
(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 Company 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 Company'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 Company 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;
(g) All buildings or other customarily insured improvements upon the
Mortgaged Property are insured by an insurer acceptable under the ▇▇▇▇▇▇ ▇▇▇ or
FHLMC Guides, against loss by fire, hazards of extended coverage and such other
hazards as are provided for in the ▇▇▇▇▇▇ Mae or FHLMC 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 ▇▇▇▇▇▇ ▇▇▇ or FHLMC 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 FHLMC 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, 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; the Company maintains, and shall maintain, evidence of such compliance
as required by applicable law or regulation and shall make such evidence
available for inspection at the Company's office during normal business hours
upon reasonable advance notice;
(i) The Mortgage has not been satisfied, 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;
(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 ▇▇▇▇▇▇ ▇▇▇ and
FHLMC. 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;
(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, the Company 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 and supervising the
servicing of 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 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. The Company intends to relinquish all rights to possess,
control and monitor the Mortgage Loan, except for the purposes of servicing 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 FHLMC (including adjustable rate endorsements), issued by a title
insurer acceptable to ▇▇▇▇▇▇ Mae or FHLMC 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. 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;
(o) There are no mechanics' or similar liens or claims which have been
filed for work, labor or material (and no rights are outstanding that under law
could give rise to such liens) affecting the related Mortgaged Property which
are or may be liens prior to or equal 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 by or for the Company pursuant
to, and conforms with, the Company's underwriting guidelines attached as 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 Company 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;
(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, approved by the Company, 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 FHLMC 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 FHLMC;
(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
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) The Mortgage Loan does not contain balloon or "graduated payment"
features; 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 the respect to each adjustable rate Mortgage Loan, each
Mortgage Note requires a monthly payment which is sufficient (a) during the
period prior to the first adjustment 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 Adjustment 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
the 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 provisions 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;
(bb) (INTENTIONALLY LEFT BLANK)
(cc) (INTENTIONALLY LEFT BLANK)
(dd) (INTENTIONALLY LEFT BLANK)
(ee) (INTENTIONALLY LEFT BLANK)
(ff) (INTENTIONALLY LEFT BLANK)
(gg) (INTENTIONALLY LEFT BLANK)
(hh) Unless set forth in the related Term Sheet, in the event the
Mortgage Loan had an LTV at origination greater than 80.00%, either (i) the
excess of the principal balance of the Mortgage Loan over 75.0% of the Appraised
Value of the Mortgaged Property with respect to a Refinanced Mortgage Loan, or
the lesser of the Appraised Value or the purchase price of the Mortgaged
Property with respect to a purchase money Mortgage Loan was insured as to
payment defaults by a Primary Mortgage Insurance Policy issued by a Qualified
Insurer or (ii) the Mortgage Loan was insured as to payment defaults by a Lender
Primary Mortgage Insurance Policy issued by a Qualified Insurer. No Mortgage
Loan has an LTV over 95%. All provisions of such Primary Mortgage Insurance
Policy or Lender Primary Mortgage Insurance Policy, as applicable, 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. 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. 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 or Lender 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; With respect to any Primary Mortgage
Insurance Policy, the mortgage interest rate for the Mortgage Loan as set forth
on the related Mortgage Loan Schedule is net of any such insurance premium;
(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) Unless otherwise specified in the related Term Sheet, none of the
Mortgage Loans are secured by an interest in a leasehold estate. 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. 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;
(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;
(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
Soldiers' and Sailors' Civil Relief Act of 1940;
(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
Company 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 five 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) The Mortgage Loan was originated by a mortgagee approved by the
Secretary of Housing and Urban Development pursuant to sections 203 and 211 of
the National Housing Act, a savings and loan association, a savings bank, a
commercial bank, credit union, insurance company or similar institution which is
supervised and examined by a federal or state authority;
(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, Company 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; and
(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.
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,
and such breach is not cured within sixty (60) days of the earlier of either
discovery by or notice to the Company of such breach, 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.
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 (i) the earlier of 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, and (iii) demand upon the Company by the Purchaser for
compliance with this Agreement.
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 convenants to the Company that,
as of the related Closing Date or as of such date specifically provided herein:
(a) The Purchaser is a corporation, dully organized validly existing
and in good standing under the laws of the State of Delaware and is qualified to
transact business in, is in good standing under the laws of, and possesses all
licenses necessary for the conduct of its business in, each state in which any
Mortgaged Property is located or is otherwise except or not required under
applicable law to effect such qualification or license;
(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, 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;
(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 and necessary 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 Seller 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 COMPANY TO ACT AS SERVICER.
The Company, as independent contract servicer, shall service and
administer the Mortgage Loans in accordance with 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 Company 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 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 and the Company.
Consistent with the terms of this Agreement and the related Term Sheet,
the Company 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 Company's reasonable and prudent determination such waiver,
modification, postponement or indulgence is not materially adverse to the
Purchaser, provided, however, that unless the Company has obtained the prior
written consent of the Purchaser, the Company 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 Company shall, on the Business Day immediately preceding
the Remittance Date in any month in which any such principal or interest payment
has been deferred, deposit in the Custodial Account from its own funds, in
accordance with Section 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 Company 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 Company 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 Company 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.
Notwithstanding anything in this Agreement to the contrary, if any
Mortgage Loan becomes subject to a Pass-Through Transfer, the Company (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 Company, 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 "contriburions" 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 Company 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 Company shall not
take any such actions as to which it has been advised that an Adverse REMIC
Event could occur.
The Company shall not permit the creation of any "interests" (within
the meaning of Section 860G of the Code) in any REMIC. The Company 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
employ Accepted Servicing Practices, giving due consideration to the Purchaser's
reliance on the Company. 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 as servicer.
The Mortgage Loans may be subserviced by a Subservicer on behalf of the
Company provided that the Subservicer is an entity that engages in the business
of servicing loans, and in either case shall be 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 Subservicer to perform its obligations
hereunder and under the Subservicing Agreement, and in either case shall be a
FHLMC or ▇▇▇▇▇▇ ▇▇▇ 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 ▇▇▇▇▇▇ Mae or for seller/servicers imposed by ▇▇▇▇▇▇ ▇▇▇ or FHLMC, or
which would require notification to ▇▇▇▇▇▇ Mae or FHLMC. In addition, each
Subservicer 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 Subservicing Agreement. The Company may perform any of its servicing
responsibilities hereunder or may cause the Subservicer to perform any such
servicing responsibilities on its behalf, but the use by the Company of the
Subservicer shall not release the Company from any of its obligations hereunder
and the Company shall remain responsible hereunder for all acts and omissions of
the Subservicer as fully as if such acts and omissions were those of the
Company. The Company shall pay all fees and expenses of the Subservicer from its
own funds, and the Subservicer's fee shall not exceed the Servicing Fee. Company
shall notify Purchaser promptly in writing upon the appointment of any
Subservicer.
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 the Subservicer and arrange for any
servicing responsibilities to be performed by a successor subservicer meeting
the requirements in the preceding paragraph, provided, however, that nothing
contained herein shall be deemed to prevent or prohibit the Company, at the
Company's option, from electing to service the related Mortgage Loans itself. In
the event that the Company's responsibilities and duties under this Agreement
are terminated pursuant to Section 4.13, 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 Subservicer 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
Subservicer 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 the Subservicer or any
reference herein to actions taken through the Subservicer 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
alone were servicing and administering the Mortgage Loans. The Company shall be
entitled to enter into an agreement with the Subservicer for indemnification of
the Company by the Subservicer 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 Subservicer to perform any of its servicing duties, responsibilities
and obligations hereunder.
Any Subservicing Agreement and any other transactions or services
relating to the Mortgage Loans involving the Subservicer shall be deemed to be
between the Subservicer and Company alone, and the Purchaser shall have no
obligations, duties or liabilities with respect to the Subservicer including no
obligation, duty or liability of Purchaser to pay the Subservicer'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 Subservicer 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 will proceed diligently to
collect all payments due under each Mortgage Loan when the same shall become due
and payable and shall, to the extent such procedures shall be consistent with
this Agreement, 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 will 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 Company waive its right to any prepayment penalty
or premium without the prior written consent of Purchaser and Company 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 use its best efforts, consistent with the procedures
that the Company 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 or a notice of default sent 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 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 Company
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 Company through Insurance Proceeds or
Liquidation Proceeds from the related Mortgaged Property, as contemplated in
Section 4.05. Company shall obtain prior approval of Purchaser as to repair or
restoration expenses in excess of ten thousand dollars ($10,000). The Company
shall notify the Purchaser in writing of the commencement of foreclosure
proceedings. The Company shall be responsible for all costs and expenses
incurred by it 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 the Company has reasonable cause to believe that a
Mortgaged Property is contaminated by hazardous or toxic substances or wastes,
or if the Purchaser otherwise requests an environmental inspection or review of
such Mortgaged Property, such an inspection or review is to be conducted by a
qualified inspector at the Purchaser's expense. Upon completion of the
inspection, the Company shall promptly provide the Purchaser with a written
report of the environmental inspection. After reviewing the environmental
inspection report, the Purchaser shall determine how the Company shall proceed
with respect to the Mortgaged Property.
Notwithstanding anything to the contrary contained herein, the
Purchaser may, at the Purchaser's sole option, terminate the Company as servicer
of any Mortgage Loan which becomes ninety (90) days or greater delinquent in
payment of a scheduled Monthly Payment, without payment of any termination fee
with respect thereto, provided that the Company shall on the date said
termination takes effect be reimbursed for any unreimbursed advances of the
Company's funds made pursuant to Section 5.03 and any unreimbursed Servicing
Advances and Servicing Fees in each case relating to the Mortgage Loan
underlying such delinquent Mortgage Loan notwithstanding anything to the
contrary set forth in Section 4.05. In the event of any such termination, the
provisions of Section 11.01 hereof shall apply to said termination and the
transfer of servicing responsibilities with respect to such delinquent Mortgage
Loan to the Purchaser or its designee.
In the event that a Mortgage Loan becomes part of a REMIC, and becomes
REO Property, such property shall be disposed of by the Company, 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 Company 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. Company shall 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 either itself or through an
agent selected by Company, 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.
Section 4.04 ESTABLISHMENT OF CUSTODIAL ACCOUNTS; DEPOSITS IN CUSTODIAL
ACCOUNTS.
The Company shall segregate and hold all funds collected and received
pursuant to each Mortgage Loan separate and apart from any of its own funds and
general assets and shall establish and maintain one or more Custodial Accounts.
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 up to the FDIC 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 Company 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 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 Company in connection
with any REO Property pursuant to Section 4.13 and in connection therewith, the
Company shall 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;
(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 Company pursuant to
Section 4.10 in connection with the deductible clause in any blanket hazard
insurance policy, such deposit shall be made from the Company'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 Company 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 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 Company 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 Company'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 Company'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 Company'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
Company'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;
(iv) to pay to itself as part of its servicing compensation (a) any
interest earned on funds in the Custodial Account (all such interest to be
withdrawn monthly not later than each Remittance Date), and (b) the Servicing
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 Company; and
(vi) 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 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 must be invested in Permitted Investments. Funds deposited in the
Escrow Account may be drawn on by the Company 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 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.
The Company shall 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 retain any interest paid on funds deposited in the
Escrow Account by the depository institution other than interest on escrowed
funds required by law to be paid to the Mortgagor and, to the extent required by
law, the Company shall pay interest on escrowed funds to the Mortgagor
notwithstanding that the Escrow Account is non-interest bearing or that interest
paid thereon is insufficient for such purposes. 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 Company 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 Company for any Servicing Advance made by Company
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 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; and
(viii) to pay to the Mortgagors or other parties Insurance Proceeds
deposited in accordance with Section 4.06.
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 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 Company 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 determine that any such
payments are made by the Mortgagor at the time they first become due. The
Company assumes full responsibility for the timely payment of all such bills and
shall effect timely payments of all such bills irrespective of the Mortgagor's
faithful performance in the payment of same or the making of the Escrow Payments
and shall make advances from its own funds to effect such payments.
The Company will maintain in full force and effect Primary Mortgage
Insurance Policies and 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 with the approval of
Purchaser, or as required by applicable law or regulation. The Company will not
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 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 Company would
have been covered thereunder. In connection with any assumption or substitution
agreement entered into or to be entered into pursuant to Section 6.01, the
Company shall promptly notify the insurer under the related 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 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 agrees to
prepare and present, on behalf of itself and the Purchaser, claims to the
insurer under any Primary Mortgage Insurance Policy or Lender Primary 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 Company 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.
Section 4.09 TRANSFER OF ACCOUNTS.
The Company 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 to be maintained for each Mortgage Loan fire
and hazard insurance with extended coverage as is acceptable to ▇▇▇▇▇▇ Mae or
FHLMC 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 ▇▇▇▇▇▇ ▇▇▇ or FHLMC, 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 Company 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 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 immediately force place the required
flood insurance on the Mortgagor's behalf. The Company shall 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 Company 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 Company 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.
Section 4.11 MAINTENANCE OF MORTGAGE IMPAIRMENT INSURANCE POLICY.
In the event that the Company shall obtain and maintain a blanket
policy issued by an insurer acceptable to ▇▇▇▇▇▇ Mae or FHLMC 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, 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 agrees to prepare and present, on behalf of the Purchaser, claims under
any such blanket policy in a timely fashion in accordance with the terms of such
policy. Upon request of the Purchaser, the Company shall cause to be delivered
to the Purchaser a certified true copy of such policy and shall use its best
efforts to obtain a statement from the insurer thereunder that such policy shall
in no event be terminated or materially modified without thirty (30) days' prior
written notice to the Purchaser.
Section 4.12 FIDELITY BOND, ERRORS AND OMISSIONS INSURANCE.
The Company shall maintain, at its own expense, a blanket fidelity bond
and an errors and omissions insurance policy, with broad coverage with
responsible companies on all officers, employees or other persons acting in any
capacity with regard to the Mortgage Loan 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 Company
against losses, including forgery, theft, embezzlement and fraud of such
persons. The errors and omissions insurance shall protect and insure the Company
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
Company 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 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 ▇▇▇▇▇▇ ▇▇▇ in the ▇▇▇▇▇▇ Mae Guides. Upon
request by the Purchaser, the Company shall 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 shall 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, Company shall 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.
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
Company 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 notify the Purchaser in accordance with the ▇▇▇▇▇▇
▇▇▇ 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 Company 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
continue to provide certain administrative services to the Purchaser relating to
such REO Property as set forth in this Section 4.13. The fee for such
administrative services shall be $2,000 to be paid upon liquidation of the REO
Property. 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, either itself or through an agent selected by the
Company, and in accordance with the ▇▇▇▇▇▇ Mae 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 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 make or cause to be made a written report of
each such inspection. Such reports shall be retained in the Mortgage File and
copies thereof shall be forwarded by the Company to the Purchaser.
The Company shall use its best efforts to dispose of the REO Property
as soon as possible and shall sell such REO Property in any event within one
year after title has been taken to such REO Property, unless the Company
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 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 ▇▇▇▇▇▇ ▇▇▇ Guides. The disposition of REO Property shall be
carried out by the Company at such price, and upon such terms and conditions, as
the Company deems to be in the best interests of the Purchaser (subject to the
above conditions) only with the prior written consent of the Purchaser. Company
shall provide monthly reports to Purchaser in reference to the status of the
marketing of the REO Properties.
Notwithstanding anything to the contrary contained herein, the
Purchaser may, at the Purchaser's sole option, terminate the Company as servicer
of any such REO Property without payment of any termination fee with respect
thereto, provided that the Company shall on the date said termination takes
effect be reimbursed for any unreimbursed advances of the Company's funds made
pursuant to Section 5.03 and any unreimbursed Servicing Advances and Servicing
Fees in each case relating to the Mortgage Loan underlying such REO Property
notwithstanding anything to the contrary set forth in Section 4.05. In the event
of any such termination, the provisions of Section 11.01 hereof shall apply to
said termination and the transfer of servicing responsibilities with respect to
such REO Property to the Purchaser or its designee. Within five Business Days of
any such termination, the Company shall, if necessary convey such property to
the Purchaser and shall further provide the Purchaser with the following
information regarding the subject REO Property: the related drive by appraisal
or brokers price opinion, and copies of any related Mortgage Impairment
Insurance Policy claims. In addition, within five Business Days, the Company
shall provide the Purchaser with the following information regarding the subject
REO Property: the related trustee's deed upon sale and copies of any related
hazard insurance claims, or repair bids.
Section 4.14 NOTIFICATION OF MATURITY DATE.
With respect to each Mortgage Loan, the Company 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 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 Company 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 Company's obligation as to payment of such interest shall be
limited to the Servicing Fee earned during the month of the distribution, plus
(iv) unless otherwise stated in the related Confirmation or related Term Sheet,
any amount received by the Company that represents a prepayment penalty with
respect to a Mortgage Loan, minus (v) 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.
With respect to any remittance received by the Purchaser after the
Remittance Date, the Company shall pay to the Purchaser interest on any such
late payment at an annual rate equal to the Prime Rate, adjusted as of the date
of each change, plus three (3) 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 Company of any such interest shall not be
deemed an extension of time for payment or a waiver of any Event of Default by
the Company. On each Remittance Date, the Company shall 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 furnish to Purchaser an individual loan accounting
report, as of the last Business Day of each month, in the Company'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 Company
during the prior distribution period;
(iv) the aggregate Stated Principal Balance of the Mortgage Loans;
(v) the aggregate of any expenses reimbursed to the Company 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 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 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.
Section 5.03 MONTHLY ADVANCES BY THE COMPANY.
Not later than the close of business on the Business Day preceding each
Remittance Date, the Company shall deposit in the Custodial Account an amount
equal to all payments not previously advanced by the Company, 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 Company's obligation to make such Monthly Advances as to any
Mortgage Loan will continue through the last Monthly Payment due prior to the
payment in full of the Mortgage Loan, or through the 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 Company deems such advance to be
nonrecoverable. In such event, the Company shall deliver to the Purchaser an
Officer's Certificate of the Company to the effect that an officer of the
Company has reviewed the related Mortgage File and has made the reasonable
determination that any additional advances are nonrecoverable.
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 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 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 will, to the extent it has knowledge of any conveyance or
prospective conveyance by any Mortgagor of the Mortgaged Property (whether by
absolute conveyance or by contract of sale, and whether or not the Mortgagor
remains or is to remain liable under the Mortgage Note and/or the Mortgage),
exercise its rights to accelerate the maturity of such Mortgage Loan under any
"due-on-sale" clause to the extent permitted by law; provided, however, that the
Company shall not exercise any such rights if prohibited by law or the terms of
the Mortgage Note from doing so or if the exercise of such rights would impair
or threaten to impair any recovery under the related Primary Mortgage Insurance
Policy or Lender Primary Mortgage Insurance Policy, if any. If the Company
reasonably believes it is unable under applicable law to enforce such
"due-on-sale" clause, the Company, with the approval of the Purchaser, will
enter into an assumption agreement with the person to whom the Mortgaged
Property has been conveyed or is proposed to be conveyed, pursuant to which such
person becomes liable under the Mortgage Note and, to the extent permitted by
applicable state law, the Mortgagor remains liable thereon. Where an assumption
is allowed pursuant to this Section 6.01, the Company, 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.
In connection with any such assumption or substitution of liability,
the Company shall follow the underwriting practices and procedures of the
Company. 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 Company diligently shall, to the extent
permitted by the Mortgage or the Mortgage Note and by applicable law, accelerate
the maturity of the Mortgage Loan. The Company shall 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 Company 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 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
Company of a notification that payment in full will be escrowed in a manner
customary for such purposes, the Company will immediately notify the Purchaser
by a certification, which certification shall include a statement to the effect
that all amounts received or to be received in connection with such payment
which are required to be deposited in the Custodial Account pursuant to Section
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 Company, the
related Mortgage Loan Documents and, upon its receipt of such documents, the
Company shall 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 Company 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.
In the event the Company 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, 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 maintain the Fidelity Bond and errors and omissions insurance insuring the
Company against any loss it may sustain with respect to any Mortgage Loan not
satisfied in accordance with the procedures set forth herein.
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 Company 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 Company. Such servicing receipt shall
obligate the Company to return the related Mortgage documents to the Purchaser
when the need therefor by the Company 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 Company has delivered to the Purchaser a
certificate of a Servicing Officer certifying as to the name and address of the
Person to which such Mortgage File or such document was delivered and the
purpose or purposes of such delivery. Upon receipt of a certificate of a
Servicing Officer stating that such Mortgage Loan was liquidated, the servicing
receipt shall be released by the Purchaser to the Company.
Section 6.03 SERVICING COMPENSATION.
As compensation for its services hereunder, the Company shall be
entitled to withdraw from the Custodial Account (to the extent of interest
payments collected on the Mortgage Loans) or to retain from interest payments
collected on the Mortgage Loans, the amounts provided for as the Company's
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 retained by 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 required to pay all expenses incurred by it in connection with
its servicing activities hereunder and shall not be entitled to reimbursement
therefor except as specifically provided for.
Section 6.04 ANNUAL STATEMENT AS TO COMPLIANCE.
The Company will deliver to the Purchaser not later than 90 days
following the end of each fiscal year of the Company beginning in March 2002, an
Officers' Certificate stating, as to each signatory thereof, that (i) a review
of the activities of the Company during the preceding calendar year and of
performance under this Agreement has been made under such officers' supervision,
and (ii) to the best of such officers' knowledge, based on such review, the
Company has fulfilled all of its obligations under this Agreement throughout
such year, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to such officers and the nature
and status of cure provisions thereof. Copies of such statement shall be
provided by the Company to the Purchaser upon request.
Section 6.05 ANNUAL INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS' SERVICING
REPORT.
Within ninety (90) days of Company's fiscal year end beginning in March
2002 the Company at its expense shall cause a firm of independent public
accountants which is a member of the American Institute of Certified Public
Accountants to furnish a statement to the Purchaser to the effect that such firm
has examined certain documents and records relating to the Company's servicing
of mortgage loans of the same type as the Mortgage Loans pursuant to 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 Company'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. Copies of such
statement shall be provided by the Company to the Purchaser. In addition, on an
annual basis, Company shall provided Purchaser with copies of its audited
financial statements.
Section 6.06 PURCHASER'S RIGHT TO EXAMINE COMPANY RECORDS.
The Purchaser shall have the right to examine and audit upon reasonable
notice to the Company, during business hours or at such other times as might be
reasonable under applicable circumstances, any and all of the books, records,
documentation or other information of the Company, or held by another for the
Company or on its behalf or otherwise, which relates to the performance or
observance by the Company of the terms, covenants or conditions of this
Agreement.
The Company shall provide to the Purchaser and any supervisory agents
or examiners representing a state or federal governmental agency having
jurisdiction over the Purchaser, including but not limited to FDIC and other
similar entities, access to any documentation regarding the Mortgage Loans in
the possession of the Company 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 Company, and in
accordance with the federal government, FDIC, or any other similar regulations.
ARTICLE VII
REPORTS TO BE PREPARED BY SERVICER
Section 7.01 COMPANY SHALL PROVIDE INFORMATION AS REASONABLY REQUIRED.
The Company shall furnish to the Purchaser during the term of this
Agreement such periodic, special or other reports, information or documentation,
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 Company 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 Company under this Agreement. Such
periodic, special or other reports, information or documentation furnished to
the Purchaser at the Purchaser's request pursuant to the preceding sentence
shall be at the expense of the Purchaser. The Company agrees to execute and
deliver all such instruments and take all such action as the Purchaser, from
time to time, may reasonably request in order to effectuate the 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 Company
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 furnish promptly to
the Purchaser or a prospective purchaser copies of the statements specified
above.
The Company shall 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 Company's servicing facilities for the purpose of satisfying such
prospective purchaser that the Company has the ability to service the Mortgage
Loans as provided in this Agreement.
ARTICLE VIII
THE 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
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 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 follow any 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
Company 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. The provisions of this Section 8.01 shall survive termination of
this Agreement.
Section 8.02 MERGER OR CONSOLIDATION OF THE COMPANY.
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.
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 and/or BIF, and which is a
HUD-approved mortgagee whose primary business is in origination and servicing of
first lien mortgage loans, and (iii) who is a ▇▇▇▇▇▇ ▇▇▇ or FHLMC approved
seller/servicer in good standing; provided, further, however, that the Company
shall give sixty (60) days written notice to the Purchaser of any merger,
conversion or consolidation to which the Company shall be a party, or of any
Person succeeding to the business of the Company, and the Purchaser, at it sole
option, shall make the determination as to whether such successor of the Company
shall continue to service the Mortgage Loans hereunder.
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 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.
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 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 NO TRANSFER OF SERVICING.
With respect to the retention of the Company to service the Mortgage
Loans hereunder, the Company acknowledges that the Purchaser has acted in
reliance upon the Company's independent status, the adequacy of its servicing
facilities, plan, personnel, records and procedures, its integrity, reputation
and financial standing and the continuance thereof. Without in any way limiting
the generality of this Section, the Company shall not either assign this
Agreement or the servicing hereunder or delegate its rights or duties hereunder
or any portion thereof, or sell or otherwise dispose of all or substantially all
of its property or assets, without the prior written approval of the Purchaser,
which consent shall be granted or withheld in the Purchaser's sole discretion.
Without in any way limiting the generality of this Section 8.05, in the
event that the Company either shall assign this Agreement or the servicing
responsibilities hereunder 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.
ARTICLE IX
DEFAULT
Section 9.01 EVENTS OF DEFAULT.
In case one or more of the following Events of Default by the Company
shall occur and be continuing, that is to say:
(i) any failure by the Company to remit to the Purchaser any payment
required to be made under the terms of this Agreement which continues unremedied
for a period of one (1) Business Day; or
(ii) 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
(iii) a decree or order of a court or agency or supervisory authority
having jurisdiction for the appointment of a conservator or receiver or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshalling of
assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Company and such
decree or order shall have remained in force undischarged or unstayed for a
period of sixty days; or
(iv) 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
(v) 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; or
(vi) Company ceases to be approved by either ▇▇▇▇▇▇ ▇▇▇ or FHLMC as a
mortgage loan seller or servicer for more than thirty days; or
(vii) 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 the servicing responsibilities
hereunder or to delegate its duties hereunder or any portion thereof; or
(viii) the Company 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 Company's ability to
perform its obligations hereunder; or
(ix) the Company fails to meet the eligibility criteria set forth in
the last sentence of Section 8.02.
Then, and in each and every such case, so long as an Event of Default
shall not have been remedied, the Purchaser, by notice in writing to the Company
(except in the case of an Event of Default under clauses (iii), (iv) or (v)
above, in which case, automatically and without notice) Company may, in addition
to whatever rights the Purchaser may have under Sections 3.03 and 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. On or after the receipt by the Company of
such written notice (or, in the case of an Event of Default under clauses (iii),
(iv) or (v) above, in which case, automatically and without notice), all
authority and power of the Company under this Agreement, whether with respect to
the Mortgage Loans or otherwise, shall pass to and be vested in the successor
appointed pursuant to Section 11.01. 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 Mortgage Files, and do or
accomplish all other acts or things necessary or appropriate to effect the
purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Mortgage Loans and related documents, or
otherwise, at the Company's sole expense. The Company agrees to cooperate with
the Purchaser and such successor in effecting the termination of the Company's
responsibilities and rights hereunder, including, without limitation, the
transfer to such successor for administration by it of all cash amounts which
shall at the time be credited by the Company to the Custodial Account or Escrow
Account or thereafter received with respect to the Mortgage Loans or any REO
Property.
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.
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)
termination with cause under the terms of this Agreement.
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 4.13, 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 4.13, 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 deliver to the successor the funds in the
Custodial Account and the Escrow Account and the Mortgage Files and related
documents and statements held by it hereunder and the Company 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.
Upon a successor's acceptance of appointment as such, the Company shall
notify by mail the Purchaser of such appointment.
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 Company'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:
National City Mortgage Company
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Servicing contact:
National City Mortgage Company
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇. ▇▇▇▇▇▇▇ Case
(ii) if to the Purchaser:
EMC Mortgage Corporation
Mac ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Bear ▇▇▇▇▇▇▇ Mortgage Capital Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
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.
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.
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, provided such information is identified as confidential
non-public information.
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 Company'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 BY PURCHASER.
The Purchaser shall have the right, without the consent of the Company,
to assign, in whole or in part, its interest under this Agreement with respect
to some or all of the Mortgage Loans, and designate any person to exercise any
rights of the Purchaser hereunder, by executing an Assignment 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. All references to the Purchaser in
this Agreement shall be deemed to include its assignee or designee.
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 Section 8.04, this Agreement
shall inure to the benefit of and be binding upon the Company and the Purchaser
and their respective successors and assigns.
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.
From and after the Closing Date, the Company agrees that it will not
take any action or permit or cause any action to be taken by any of its agents
or affiliates, to personally, by telephone or mail, solicit the borrower or
obligor under any Mortgage Loan to refinance the Mortgage Loan, in whole or in
part, without the prior written consent of the Purchaser. Notwithstanding the
foregoing, it is understood and agreed that (i) promotions undertaken by the
Company or any affiliate of the Company which are directed to the general public
at large, or segments thereof, provided that no segment shall consist primarily
of the Mortgage Loans, including, without limitation, mass mailing based on
commercially acquired mailing lists, newspaper, radio and television
advertisements, and customer portfolio and (ii) responses to unsolicited
requests or inquiries made by a Mortgagor or an agent of a Mortgagor, shall not
constitute solicitation under this Section 11.16. This Section 11.16 shall not
be deemed to preclude the Company or any of its affiliates from soliciting any
Mortgagor for any other financial products or services. From and after the
Closing Date, the Purchaser agrees that it will not take any action or permit or
cause any action to be taken by any of its agents or affiliates, or by any
independent contractors on the Purchaser's behalf, to personally by telephone or
mail, solicit the borrower or obligor under any Mortgage Loan to refinance the
Mortgage Loan, in whole or in part, without the prior written consent of the
Company,. In addition, the Purchaser or any of its affiliates shall not solicit
any Mortgagor for any other financial products or services. Notwithstanding the
foregoing, it is understood and agreed that (i) promotions undertaken by the
Purchasr or any affiliate of the Purchaser which are directed to the general
public at large, or segments thereof, provided that no segment shall consist
primarily of the Mortgage Loans, including, without limitation, mass mailing
based on commercially acquired mailing lists, newspaper, radio and television
advertisements and (ii) responses to unsolicited requests or inquiries made by a
Mortgagor or an agent of a Mortgagor, shall not constitute solicitation under
this Section 11.16 The Company shall use its best efforts to prevent the sale of
the name of any Mortgagor to any Person who is not affiliate of the Company.
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 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.
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 among
the Purchaser, the Company, and any servicer 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, the Mortgage Loans and the underwriting standards of
the Mortgage Loans. The Purchaser shall be responsible for the costs relating to
the delivery of such information. With respect to each Pass-Through Transfer,
the Purchaser shall provide thirty (30) days notice of such transfer, unless
otherwise agreed by the parties in the related Confirmation. With respect to
each Whole Loan Transfer, limits on frequency of Reconstitution may be provided
in the related Confirmation or related Term Sheet for the related Mortgage
Loans.
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.
EMC MORTGAGE CORPORATION
Purchaser
By:________________________
Name:
Title:
NATIONAL CITY MORTGAGE COMPANY
Company
By: _______________________
Name:
Title:
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 or Lender 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.
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).
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.
EXHIBIT B
CUSTODIAL ACCOUNT LETTER AGREEMENT
______________, 2001
To: [_______________________]
(the "Depository")
As "Company" under the Purchase, Warranties and Servicing Agreement,
dated as of October 1, 2001 (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 " National City Mortgage Company, in trust
for the [Purchaser], Owner of 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.
NATIONAL CITY MORTGAGE COMPANY
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 will be invested in Permitted Investments as defined in the Agreement.
[___________________________]
By:____________________________
Name:__________________________
Title:_________________________
EXHIBIT C
ESCROW ACCOUNT LETTER AGREEMENT
_____________, 2001
To: [_______________________]
(the "Depository")
As "Company" under the Purchase Warranties and Servicing Agreement,
dated as of October 1, 2001 (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 "National City Mortgage Company, in trust for
the [Purchaser], Owner of 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.
NATIONAL CITY MORTGAGE COMPANY
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 will be invested in Permitted Investments as defined in the Agreement.
[______________________]
By:______________________________
Name:____________________________
Title:___________________________
EXHIBIT D
FORM OF ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
This is a Purchase, Assignment, Assumption and Recognition Agreement
(this "PAAR Agreement") made as of __________, 200__, among EMC Mortgage
Corporation (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;
(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.
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:
(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;
(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;
(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
(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.
(1) 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.
(a) 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,
EMC Mortgage Corporation
Mac ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
_______________________
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ___________
Telecopier No.: (212) 272-____
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.
(b) [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: ________________________
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
or Lender 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:
"Company ceases to be approved by either ▇▇▇▇▇▇ ▇▇▇ or FHLMC as a
mortgage loan seller or servicer for more than thirty days, or the Company fails
to meet the servicer eligibility requirements of the Supplemental PMI Insurer;
or"]
IN WITNESS WHEREOF, the parties hereto have executed this PAAR
Agreement as of the day and year first above written.
EMC MORTGAGE CORPORATION
Assignor
By:
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Name:
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Title:
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Assignee
By:
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Name:
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Title:
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Company
By:
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Name:
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Title:
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ATTACHMENT 1
ASSIGNED LOAN SCHEDULE
ATTACHMENT 2
PURCHASE, WARRANTIES AND SERVICING AGREEMENT
(ii)
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 have been returned and received by
the Purchaser.
Dated:________________
By:________________________________
Signature
________________________________
Title
(b) EXHIBIT H
COMPANY'S UNDERWRITING GUIDELINES
EXHIBIT I
TERM SHEET
This TERM SHEET (the "Term Sheet") dated _____________, between
National City Mortgage Company, a ________ corporation, located at ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ (the "Company") and EMC Mortgage Corporation, a
Delaware corporation, located at ______________ (the "Purchaser") is made
pursuant to the terms and conditions of that certain Purchase, Warranties and
Servicing Agreement (the "Agreement") dated as of October 1, 2001, 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: [None].
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: [None]. [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.
NATIONAL CITY MORTGAGE COMPANY
By:
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Name:
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Title:
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EMC MORTGAGE CORPORATION
By:
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Name:
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Title:
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SCHEDULE I
MORTGAGE LOAN SCHEDULE
EXHIBIT H-8
SERVICING AGREEMENT
NAVY FEDERAL
This is a Purchase, Warranties and Servicing Agreement, dated as of
June 1, 2002 and is executed between EMC MORTGAGE CORPORATION, as Purchaser, a
Delaware corporation, with offices located at Mac ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇ (the "Purchaser"), and U.S.
CENTRAL CREDIT UNION, a Kansas corporation, with offices located at ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ (the "Company").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Purchaser has heretofore agreed to purchase from the
Company and the Company has heretofore agreed 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 ▇▇▇▇▇▇ Mae servicing practices and
procedures, for MBS pool mortgages, as defined in the ▇▇▇▇▇▇ ▇▇▇ 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 ▇▇▇▇▇▇ Mae.
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: Any Mortgage Loan for which the related Monthly
Payments, other than the Monthly Payment due on the maturity date thereof, are
computed on the basis of a period to full amortization ending on a date that is
later than such maturity date.
BIF: The Bank Insurance Fund, or any successor thereto.
BUSINESS DAY: Any day other than: (A) a Saturday or Sunday, or (B) a
legal holiday in the State of New York or Kansas or (C) a day on which banks in
the State of New York or Kansas 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.
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 ▇▇▇▇▇▇ ▇▇▇) 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: (A) within
FDIC or NCUSIF insured accounts created, maintained and monitored by the Company
so that all funds deposited therein are fully insured, or (B) 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) or (C) 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
(i) a federal savings association duly organized, validly existing and in good
standing under the federal banking laws, (ii) an institution duly organized,
validly existing and in good standing under the applicable banking laws of any
state, (iii) a national banking association under the federal banking laws, (iv)
a principal subsidiary of a bank holding company, or (v) a credit union duly
organized, validly existing and in good standing pursuant to state or federal
law, or (D) 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 (E) in a separate non-trust account without FDIC,
NCUSIF or other insurance in an Eligible Institution. In the event that a
Custodial Account is established pursuant to clause (C), (D) or (E) 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.
ELIGIBLE INSTITUTION: An institution having (A) the highest short-term
debt rating, and one of the two highest long-term debt ratings of each Rating
Agency; or (B) 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.
▇▇▇▇▇▇ 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.
FHLMC: The Federal Home Loan Mortgage Corporation, or any successor
thereto.
FHLMC GUIDE: The FHLMC Single Family Seller/Servicer Guide and all
amendments or additions 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.
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.
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 (A)
the Appraised Value of the Mortgaged Property as of the Origination Date with
respect to a Refinanced Mortgage Loan, and (B) 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 Servicers, 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 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.
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:
A. the Company's Mortgage Loan identifying number;
B. the Mortgagor's first and last name;
C. the street address of the Mortgaged Property including the city,
state and zip code;
D. a code indicating whether the Mortgaged Property is owner-occupied,
a second home or an investor property;
E. the type of residential property constituting the Mortgaged
Property;
F. the original months to maturity of the Mortgage Loan;
G. 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;
H. the Sales Price, if applicable, Appraised Value and Loan-to-Value
Ratio, at origination;
I. 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;
J. the Origination Date of the Mortgage Loan;
K. the stated maturity date;
L. the amount of the Monthly Payment at origination;
M. the amount of the Monthly Payment as of the related Cut-off Date;
N. the original principal amount of the Mortgage Loan;
O. 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;
P. a code indicating the purpose of the Mortgage Loan (i.e., purchase,
rate and term refinance, equity take-out refinance);
Q. a code indicating the documentation style (i.e. full, alternative,
etc.);
R. 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;
S. the date on which the first payment is or was due;
T. 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;
U. a code indicating whether or not the Mortgage Loan is currently
convertible and the conversion spread;
V. the last Due Date on which a Monthly Payment was actually applied to
the unpaid principal balance of the Mortgage Loan;
W. product type (i.e. fixed, adjustable, 3/1, 5/1, etc.);
X. credit score and/or mortgage score, if applicable;
Y. 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;
Z. a code indicating whether or not the Mortgage Loan has a prepayment
penalty and if so, the amount and term thereof;
AA. the Current Appraised Value of the Mortgage Loan and Current LTV,
if applicable; and
BB. a code indicating whether the 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:
A. the number of Mortgage Loans;
B. the current aggregate outstanding principal balance of the Mortgage
Loans;
C. the weighted average Mortgage Interest Rate of the Mortgage Loans;
D. the weighted average maturity of the Mortgage Loans; and
E. 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.
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:
A. 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;
B. (i) demand or time deposits, federal funds or bankers' acceptances
issued by any depository institution 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 (ii) any other demand or time
deposit or certificate of deposit that is fully insured by the FDIC or the
NCUSIF;
C. repurchase obligations with a term not to exceed thirty (30) days
and with respect to any security described in clause (A) above and entered into
with a depository institution or trust company (acting as principal) described
in clause B.(i) above;
D. 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 investment 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 securities issued by
such corporation and held as Permitted Investments to exceed 10% of the
aggregate outstanding principal balances of all of the Mortgage Loans and
Permitted Investments;
E. commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations payable on demand or on a specified
date not more than one year after the date of issuance thereof) which are rated
in one of the two highest rating categories by each Rating Agency at the time of
such investment;
F. 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
G. any money market funds the collateral of which consists of
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 (which may
include repurchase obligations secured by collateral described in clause A.) and
other securities and which money market funds are rated in one of the two
highest rating categories by each Rating Agency.
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 obligations underlying such instrument or
if such security provides for payment of both principal and interest with a
yield to maturity 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.
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: EMC Mortgage Corporation 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 FHLMC.
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.
REMITTANCE DATE: The 18th day of any month, beginning with the First
Remittance Date, or if such 18th day is not a Business Day, the first Business
Day immediately preceding such 18th 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 greater of 100% or 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; 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.
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 and shall contain all of the servicing terms
and conditions of 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.
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 (A) all scheduled principal due after
the related Cut-off Date, (B) 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 (C) 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.
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 shall be appropriately identified in
the Company's computer system to clearly reflect the ownership of the Mortgage
Loans by the Purchaser. The Company shall 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.
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 FHLMC, 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 FHLMC, 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, provided, however, that 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, an original counterpart of the instrument of transfer in an
Assignment and Assumption of this Agreement substantially in the form of Exhibit
D hereto executed by the transferee shall have been delivered to the Company,
and the Company shall have granted its written consent. The Purchaser also shall
advise the Company of the transfer. Upon receipt of notice of the transfer, the
Company shall, and shall cause the Servicer to, ▇▇▇▇ their 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.
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 may have in its possession,
shall be retained by the Company 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 120 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 120 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 180 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 270th 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.
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.
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 material 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 four (4) months of the related
Cut-off 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.
Section 2.10 MODIFICATION OF OBLIGATIONS.
Purchaser may, without any notice to Company, extend, compromise,
renew, release, change, modify, adjust or alter, by operation of law or
otherwise, any of the obligations of the Mortgagors or other persons obligated
under a Mortgage Loan without releasing or otherwise affecting the obligations
of Company under this Agreement, or with respect to such Mortgage Loan, except
to the extent Purchaser's extension, compromise, renewal, release, change,
modification, adjustment, or alteration affects Company's ability to collect the
Mortgage Loan or realize on the security of the Mortgage, but then only to the
extent such action has such effect.
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;
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;
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
▇▇▇▇▇▇ Mae, FHLMC 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 ▇▇▇▇▇▇ ▇▇▇ or FHLMC 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 FHLMC;
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;
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. The Company has not dealt with any broker, investment banker, agent
or other person that may be entitled to any commission or compensation in
connection with the sale of the Mortgage Loans;
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:
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;
G. All buildings or other customarily insured improvements upon the
Mortgaged Property are insured by an insurer acceptable under the ▇▇▇▇▇▇ ▇▇▇ or
FHLMC Guide, against loss by fire, hazards of extended coverage and such other
hazards as are provided for in the ▇▇▇▇▇▇ Mae or FHLMC 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 ▇▇▇▇▇▇ ▇▇▇ or FHLMC 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 FHLMC 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, 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 classified as a (i) "high cost" loan
under the Home Ownership and Equity Protection Act of 1994 or (ii) "high cost",
"threshold", or "predatory" loan under any other applicable state, federal or
local law; 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;
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 (i) the lien of
non-delinquent current real property taxes and assessments not yet due and
payable, (ii) 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 (iii) 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 ▇▇▇▇▇▇ ▇▇▇ or
FHLMC. 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;
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)(i), (ii) and (iii) 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)(i), (ii) and (iii) 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 FHLMC (including adjustable rate endorsements), issued by a title
insurer acceptable to ▇▇▇▇▇▇ Mae or FHLMC and qualified to do business in the
jurisdiction where the Mortgaged Property is located, insuring (subject to the
exceptions contained in (J)(i), (ii) and (iii) 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. 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;
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 attached as 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, (i) in the case of a Mortgage designated as a deed
of trust, by trustee's sale, and (ii) otherwise by judicial foreclosure. There
is no homestead or other exemption available to 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;
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 FHLMC 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 FHLMC;
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) (i) in compliance with any and
all applicable licensing requirements of the laws of the state wherein the
Mortgaged Property is located, and (ii) (a) organized under the laws of such
state, or (b) qualified to do business in such state, or (c) 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 (d) 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;
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
Mortgage Note requires a monthly payment which is sufficient (i) during the
period prior to the first adjustment 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 (ii) during the period
following each Adjustment 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 provisions 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;
BB. (INTENTIONALLY LEFT BLANK)
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;
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 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;
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;
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
Soldiers' and Sailors' Civil Relief Act of 1940;
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 five 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 (i) the maximum amount permitted under applicable law and
(ii) 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. The Mortgage Loan was originated by a mortgagee approved by the
Secretary of Housing and Urban Development pursuant to sections 203 and 211 of
the National Housing Act, a savings and loan association, a savings bank, a
commercial bank, credit union, insurance company or similar institution which is
supervised and examined by a federal or state authority;
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; and
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.
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.
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 (A) discovery of such
breach by the Company or notice thereof by the Purchaser to the Company, (B)
failure by the Company to cure such breach or repurchase such Mortgage Loan as
specified above, or (C.) demand upon the Company by the Purchaser for compliance
with this Agreement.
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 (A)
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
(B) 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;
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;
G. The Purchaser will treat the purchase of the Mortgage Loans from the
Company as a purchase for reporting, tax and accounting purposes; and
H. 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.
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.
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 FHLMC or
▇▇▇▇▇▇ ▇▇▇ 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 ▇▇▇▇▇▇ Mae or for servicers imposed by ▇▇▇▇▇▇ ▇▇▇ or FHLMC, or which
would require notification to ▇▇▇▇▇▇ Mae or FHLMC. 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.
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.
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 (A)
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 (B) 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.
Notwithstanding anything to the contrary contained herein, the
Purchaser may, at the Purchaser's sole option, terminate the Company as servicer
of any Mortgage Loan which becomes ninety (90) days or greater delinquent in
payment of a scheduled Monthly Payment, without payment of any termination fee
with respect thereto, provided that a minimum of 15% of the related pool of
Mortgage Loans sold to Purchaser on the related Closing Date are ninety (90)
days or greater delinquent in payment of a scheduled Monthly Payment; and
provided further that the Company shall on the date said termination takes
effect be reimbursed for any unreimbursed advances of the Company's funds made
pursuant to Section 5.03 and any unreimbursed Servicing Advances and Servicing
Fees in each case relating to the Mortgage Loan underlying such delinquent
Mortgage Loan notwithstanding anything to the contrary set forth in Section
4.05. In the event of any such termination, the provisions of Section 11.01
hereof shall apply to said termination and the transfer of servicing
responsibilities with respect to such delinquent Mortgage Loan to the Purchaser
or its designee.
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 certificate holders
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.
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:
A. all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans;
B. all payments on account of interest on the Mortgage Loans adjusted
to the Mortgage Loan Remittance Rate;
C. all Liquidation Proceeds;
D. 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;
E. 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;
F. 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;
G. any Monthly Advances;
H. 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;
I. 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
J. 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 D. 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:
A. to make payments to the Purchaser in the amounts and in the manner
provided for in Section 5.01;
B. to reimburse itself for Monthly Advances, the Servicer's right to
reimburse itself pursuant to this subclause B. 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;
C. 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 C. 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;
D. to pay to the Company (i) any interest earned on funds in the
Custodial Account (all such interest to be withdrawn monthly not later than each
Remittance Date), and (ii) the Servicing Fee from that portion of any payment or
recovery as to interest with respect to a particular Mortgage Loan;
E. 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,
F. to transfer funds to another Eligible Account in accordance with
Section 4.09 hereof;
G. to remove funds inadvertently placed in the Custodial Account by the
Servicer; and
H. 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:
A. all Escrow Payments collected on account of the Mortgage Loans, for
the purpose of effecting timely payment of any such items as required under the
terms of this Agreement;
B. all Insurance Proceeds which are to be applied to the restoration or
repair of any Mortgaged Property; and
C. all Servicing Advances for Mortgagors whose Escrow Payments are
insufficient to cover escrow disbursements.
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:
A. 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;
B. 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;
C. to refund to the Mortgagor any funds as may be determined to be
overages;
D. for transfer to the Custodial Account in accordance with the terms
of this Agreement;
E. for application to restoration or repair of the Mortgaged Property;
F. to pay to the Company, or to the Mortgagor to the extent required by
law, any interest paid on the funds deposited in the Escrow Account;
G. 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
H. to pay to the Mortgagors or other parties Insurance Proceeds
deposited in accordance with Section 4.06.
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
(A) with the approval of Purchaser, (B) after the Current LTV is eighty percent
(80%) or less, or (C) 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.
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 FHLMC and customary in the area where the Mortgaged Property is
located in an amount which is equal to the lesser of (A) the maximum insurable
value of the improvements securing such Mortgage Loan or (B) the greater of (i)
the outstanding principal balance of the Mortgage Loan, and (ii) 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 FHLMC, in an amount representing coverage not less than the
least of (A) the outstanding principal balance of the Mortgage Loan, (B) the
maximum insurable value of the improvements securing such Mortgage Loan or (C)
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 ▇▇▇▇▇▇ ▇▇▇ 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 ▇▇▇▇▇▇
Mae 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.
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 ▇▇▇▇▇▇ ▇▇▇ or FHLMC 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.
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.
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 (A)
all amounts credited to the Custodial Account as of the close of business on the
preceding Determination Date, net of charges against or withdrawals from the
Custodial Account pursuant to Section 4.05, plus (B) all Monthly Advances, if
any, which the Servicer is obligated to distribute pursuant to Section 5.03,
plus, (C) 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 (C) 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
(B), (C) and (D) above.
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:
A. 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);
B. with respect to each Monthly Payment, the amount of such remittance
allocable to interest;
C. the amount of servicing compensation received by the Servicer during
the prior distribution period;
D. the aggregate Stated Principal Balance of the Mortgage Loans;
E. the aggregate of any expenses reimbursed to the Servicer during the
prior distribution period pursuant to Section 4.05;
F. the number and aggregate outstanding principal balances of Mortgage
Loans (i) delinquent (a) 30 to 59 days, (b) 60 to 89 days, (c) 90 days or more;
(ii) as to which foreclosure has commenced; and (iii) 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.
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.
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 Service will enter into
an assumption agreement with the person to whom the Mortgaged Property has been
conveyed or is proposed to be conveyed, pursuant to which such person becomes
liable under the Mortgage Note and, to the extent permitted by applicable state
law, the Mortgagor remains liable thereon. 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.
In connection with any such assumption or substitution of liability,
the Company shall cause the Servicer to follow the underwriting standards
attached hereto as 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 that all amounts received or to be received in connection
with such payment which are required to be deposited in the Custodial Account
pursuant to Section 4.04 have been or will be so deposited, and shall request
delivery to it of the portion of the Mortgage File held by the Purchaser. The
Purchaser shall no later than five Business Days after receipt of such
information , 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.
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: (A) withdraw from
the Custodial Account (to the extent of interest payments collected on the
Mortgage Loans) and remit to the Company; or (B) 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 (C). 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.
Section 6.04 ANNUAL STATEMENT AS TO COMPLIANCE.
The Company shall cause the Servicer to deliver to the Purchaser not
later than 90 days following the end of each fiscal year of the Servicer
beginning in January of 2002, 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.
Within ninety (90) days of Servicer's fiscal year end beginning in
January of 2002, 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 (A) such exceptions as such firm shall believe to be immaterial, and (B)
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 COMPANY 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.
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.
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.
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 (A) having a GAAP net worth of not less than $25,000,000, (B)
the deposits of which are insured by the FDIC, NCUSIF, SAIF and/or BIF, (C)
which is a HUD-approved mortgagee whose primary business is in origination and
servicing of first lien mortgage loans, and (D) who is a ▇▇▇▇▇▇ ▇▇▇ or FHLMC
approved seller/servicer in good standing, provided however that in lieu of the
Company complying with clauses (C) and (D) 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 (A) having a GAAP net worth of not less than $25,000,000, (B)
the deposits of which are insured by the FDIC, NCUSIF, SAIF and/or BIF, and
which is a HUD-approved mortgagee whose primary business is in origination and
servicing of first lien mortgage loans, and (C) who is a ▇▇▇▇▇▇ Mae or FHLMC
approved seller/servicer in good standing. Notwithstanding this Section 8.02 or
any other provision of this Agreement, Purchaser acknowledges that Midwest Loan
Services, Inc., shall be permitted to serve as Servicer hereunder without
triggering any default under or breach of this Agreement for so long as Midwest
Loan Services, Inc., maintains a net worth of at least $1,000,000.
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.
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 (A) satisfying the requirements set
forth herein or (B) 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.
ARTICLE IX
DEFAULT
Section 9.01 EVENTS OF DEFAULT.
In case one or more of the following Events of Default by the Company
shall occur and be continuing, that is to say:
A. 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
B. 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
C. a decree or order of a court or agency or supervisory authority
having jurisdiction for the appointment of a conservator or receiver or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshalling of
assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Company and such
decree or order shall have remained in force undischarged or unstayed for a
period of sixty days; or
D. 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
E. 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; or
F. Servicer ceases to be approved by either ▇▇▇▇▇▇ ▇▇▇ or FHLMC as a
mortgage loan servicer for more than thirty days; or
G. 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
H. the Servicer ceases to be (i) licensed to service first lien
residential mortgage loans in any jurisdiction in which a Mortgaged Property is
located and such licensing is required, and (ii) 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 Company's ability to
cause its obligations hereunder to be performed; or
I. the Servicer fails to meet the eligibility criteria set forth in the
last sentence of Section 8.02.
Then, and in each and every such case, so long as an Event of Default
shall not have been remedied, the Purchaser, by notice in writing to the Company
(except in the case of an Event of Default under clauses (C), (D) or (E) above,
in which case, automatically and without notice) may, in addition to whatever
rights the Purchaser may have under Sections 3.03 and 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. On or after the receipt by the Company of such written notice (or, in
the case of an Event of Default under clauses (C), (D) or (E) above, in which
case, automatically and without notice), all authority and power of the Company
under this Agreement, whether with respect to the Mortgage Loans or otherwise,
shall pass to and be vested in the successor appointed pursuant to Section
11.01. 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 Mortgage Files, and do or accomplish all other acts
or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Mortgage Loans and related documents, or otherwise, at the Company's sole
expense. The Company agrees to cooperate with the Purchaser and such successor
in effecting the termination of the Company's responsibilities and rights
hereunder, including, without limitation, the transfer to such successor for
administration by it of all cash amounts which shall at the time be credited by
the Company to the Custodial Account or Escrow Account or thereafter received
with respect to the Mortgage Loans or any REO Property.
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.
ARTICLE X
TERMINATION
Section 10.01 TERMINATION.
The respective obligations and responsibilities of the Company shall
terminate upon: (A) 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 (B)
by mutual consent of the Company and the Purchaser in writing; or (C)
termination with cause under the terms of this Agreement.
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 (B) or (C), the Purchaser
shall (A) succeed to and assume all of the Company's responsibilities, rights,
duties and obligations under this Agreement, or (B) 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.
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:
(A) if to the Company:
U.S. Central Credit Union
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
With a copy to:
U.S. Central Credit Union
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Law Department
(B) if to the Purchaser:
(1) EMC MORTGAGE CORPORATION
Mac ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
Bear ▇▇▇▇▇▇▇ Mortgage Capital Corp.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
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.
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:
A. the terms defined in this Agreement have the meanings assigned to
them in this Agreement and include the plural as well as the singular, and the
use of any gender herein shall be deemed to include the other gender;
B. accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles;
C. references herein to "Articles", "Sections", Subsections",
"Paragraphs", and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other subdivisions of
this Agreement;
D. a reference to a Subsection without further reference to a Section
is a reference to such Subsection as contained in the same Section in which the
reference appears, and this rule shall also apply to Paragraphs and other
subdivisions;
E. the words "herein", "hereof ", "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
provision;
F. the term "include" or "including" shall mean without limitation by
reason of enumeration; and
G. headings of the Articles and Sections in this Agreement are for
reference purposes only and shall not be deemed to have any substantive effect.
Section 11.09 REPRODUCTION OF DOCUMENTS.
This Agreement and all documents relating thereto, including, without
limitation, (A) consents, waivers and modifications which may hereafter be
executed, (B) documents received by any party at the closing, and (C) financial
statements, certificates and other information previously or hereafter
furnished, may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The parties agree
that any such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding, whether or not the original
is in existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
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, provided such information is identified as confidential
non-public information.
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. 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.
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 the related Closing Date,
the Company 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 Company's behalf, to solicit in any manner whatsoever
any Mortgagor to prepay or refinance a Mortgage Loan. The Company shall (i) not
sell the name of any Mortgagor, and (ii) use its best efforts to prevent the
sale of the name of any Mortgagor by the Company'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.
B. PURCHASER'S NONSOLICITATION. From and after the 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
whatsoever any Mortgagor to prepay or refinance a Mortgage Loan. The Purchaser
shall (i) not sell the name of any Mortgagor, and (ii) 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 for the direct or indirect
purpose of allowing such person or entity to solicit the refinancing of any
Mortgage Loan.
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.
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 (i) to cooperate fully with
the Purchaser and any prospective purchaser with respect to all reasonable
requests and due diligence procedures; (ii) to execute, deliver and perform all
Reconstitution Agreements required by the Purchaser; (iii) 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:
(a) 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 (b) 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, the Mortgage Loans and the underwriting standards of
the Mortgage Loans. The Purchaser shall be responsible for the costs relating to
the delivery of such information.
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.
EMC MORTGAGE CORPORATION
Purchaser
By:______________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Executive Vice President
U.S. CENTRAL CREDIT UNION
Company
By: _____________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
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 or a certified copy of the 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.
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).
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.
EXHIBIT B
CUSTODIAL ACCOUNT LETTER AGREEMENT
[Date]
To: [_______________________]
(the "Depository")
As "Company" under the Purchase, Warranties and Servicing Agreement,
dated as of June 1, 2002 (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 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:__________________________________
EXHIBIT C
ESCROW ACCOUNT LETTER AGREEMENT
[Date]
To: [_______________________]
(the "Depository")
As "Company" under the Purchase Warranties and Servicing Agreement,
dated as of June 1, 2002 (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 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:__________________________________
EXHIBIT D
FORM OF ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
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 June 1, 2002, 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, (a) 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 (b) 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;
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.
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:
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;
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;
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
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.
(1) 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.
(a) 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:
In the case of Company,
-----------------------------------------
-----------------------------------------
-----------------------------------------
With a copy to --------------------------.
In the case of Assignor,
-----------------------------------------
-----------------------------------------
-----------------------------------------
In the case of Assignee,
-----------------------------------------
-----------------------------------------
-----------------------------------------
with a copy to:
-----------------------------------------
-----------------------------------------
-----------------------------------------
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.
(b) [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: ________________________
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 FHLMC 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"]
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:
--------------------------------------
ATTACHMENT 1
ASSIGNED LOAN SCHEDULE
ATTACHMENT 2
PURCHASE, WARRANTIES AND SERVICING AGREEMENT
(ii)
EXHIBIT E
FORM OF TRIAL BALANCE
The trial balance file shall contain the following fields:
(▇▇▇▇▇▇) FORMAT, SERVICER PERIOD REPORTING
The format should be:
1. Record length of 240
2. ASCII
3. All dates should have DD of "01".
# M/O FIELD NAME POSITION LENGTH COBOL "PICTURE" JUSTIFY
1 O Master Servicer No. 001-002 2
2 O Unit Code 003-004 2
3 M Loan Number 005-014 10 X(10)
4 O Borrower Name 015-034 20 X(20)
5 O Old Payment Amount 035-045 11 S(9)V9(02)
6 O Old Loan Rate 046-051 6 9(2)V9(04)
7 O Servicer Fee Rate 052-057 6 9(2)V9(04)
8 M Servicer Ending Balance 058-068 11 S9(9)V9(02)
9 M Servicer Next Due Date 069-076 8 CCYYMMDD
10 O Curtail Amt 1 - Before 077-087 11 S9(9)V9(02)
11 O Curtail Date 1 088-095 8 CCYYMMDD
12 O Curtail Amt 1 - After 096-106 11 S9(9)V9(02)
13 O Curtail Amt 2 - Before 107-117 11 S9(9)V9(02)
14 O Curtail Date 118-125 8 CCYYMMDD
15 O Curtail Amt 2 - After 126-136 11 9(9)V9(02)
16 O Curtail Amt 3 - Before 137-147 11 9(9)V9(02)
17 O Curtail Date 148-155 8 CCYYMMDD
18 O Curtail Amt 3 - After 156-166 11 9(9)V9(02)
19 O New Payment Amount 167-177 11 9(9)V9(02)
20 O New Loan Rate 178-183 6 (2)V9(04)
21 O Index Rate 184-189 6 (2)V9(04)
22 O Remaining Term 190-192 3 (3)
23 O Liquidation Amount 193-203 11 9(9)V9(02)
24 O Action Code 204-205 2 (02)
25 O Scheduled Principal 206-216 11 9(9)V9(02)
26 O Scheduled Interest 217-227 11 9(9)V9(02)
27 O Scheduled Ending Balance 228-238 11 9(9)V9(02)
28 O FILLER 239-240 2 (02)
TRAILER RECORD
1 O Number of Records 001-006 6 9(06)
2 O FILLER 007-240 234 X(234)
Field Names and Descriptions:
FIELD NAME DESCRIPTION
Master Servicer No. Hard code as "01" used internally
Unit Code Hard code as " " used internally
Loan Number Investor's loan number
Borrower Name Last name of borrower
Old Payment Amount P&I amount used for the applied payment
Old Loan Rate Gross interest rate used for the applied payment
Servicer Fee Rate Servicer's fee rate
Servicer Ending Balance Ending actual balance after a payment has
been applied
Servicer Next Due Date Borrower's next due date for a payment
Curtailment Amount 1 - Before Amount of curtailment applied before the payment
Curtailment Date 1 Date of curtailment should coincide with the
payment date applicable to the curtailment
Curtailment Amount 1 - After Amount of curtailment applied after the payment
Curtailment Amount 2 - Before Amount of curtailment applied before the payment
Curtailment Date 2 Date of curtailment should coincide with the
payment date applicable to the curtailment
Curtailment Amount 2 - After Amount of curtailment applied after the payment
Curtailment Amount 3 - Before Amount of curtailment applied before the payment
Curtailment Date 3 Date of curtailment should coincide with the
payment date applicable to the curtailment
Curtailment Amount 3 - After Amount of curtailment applied after the payment
New Payment Amount For ARM, Equal, or Buydown
loans, when a payment change occurs, this is
the scheduled payment
New Loan Rate For ARM loans, when the gross
interest rate change occurs, this is the
scheduled rate
Index Rate For ARM loans, the index rate used in
calculating the new gross interest rate
Remaining Term For ARM loans, the number of months left on
the loan used to determine the new P&I
amount
Liquidation Amount The payoff amount of the loan
Action Code For delinquent loans:
12 -- Relief Provisions
15 -- Bankruptcy/Litigation
20 -- Referred for Deed-in-lieu, short sale
30 -- Referred to attorney
to begin foreclosure 60 --
Loan Paid in full 70 --
Real Estate Owned
Scheduled Principal Amount of principal from borrower payment
due to bondholder
Scheduled Interest Amount of interest from borrower payment due
to bondholder
Scheduled Ending Balance Ending scheduled balance of loan
FILLER Should be filled with spaces
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
(b) EXHIBIT H
UNDERWRITING GUIDELINES
ELIGIBILITY
Eligible Products:
Fixed Rate 30 Year Mortgage
Fixed Rate 15 Year Mortgage
One Year Treasury ARM
Three/One Treasury ARM
Five/One Treasury ARM
Seven/One Treasury ARM
Ten/One Treasury ARM
Balloon Mortgages
Eligible Borrower:
U.S. Citizen
Permanent Resident Alien
Occupancy:
Primary Residence - Owner Occupied
Second/Vacation Home - Owner Occupied
Property Type:
Single Family
PUD
Condominium
2 - 4 Family
Credit Grade
Standards: A+, A (as defined byU.S. Central's credit grades)
Income
Documentation
Full Doc
Stated Income
(i) CREDIT GRADES
CREDIT QUALITY CREDIT SCORE PAYMENT HISTORY, BANKRUPTCY, FORECLOSURE, MAJOR RATIOS
ADVERSE CREDIT
---------------------------- -------------------------- ------------------------------------------------- ------------
(2) A + 720 + PAYMENT HISTORY: No 0x30 in past 12 months. No ARM 33/38%
other delinquencies
BANKRUPTCIES: None FIXED
FORECLOSURES: None 36/40%
MAJOR ADVERSE CREDIT: None reported in the past
24 months.
---------------------------- -------------------------- ------------------------------------------------- ------------
A 680-719 PAYMENT HISTORY: No 0x30 in past 12 months. No ARM 33/38%
other delinquencies
BANKRUPTCIES: None in past 7 years FIXED
FORECLOSURES: None in past 7 years 36/40%
MAJOR ADVERSE CREDIT: None reported in the past
24 months.
---------------------------- -------------------------- ------------------------------------------------- ------------
FULL INCOME DOCUMENTATION
--------------------------------- ---------------- ------------------------- ------------------------ ----------------
Property Type Maximum Loan Purchase or Rate/Term Cash-out Refi Maximum Cash
Amount Refi Out
--------------------------------- ---------------- ------------ ------------ ----------- ------------ ----------------
Max LTV Max CLTV Max LTV Max CLTV
----------------------------------------------------------------------------------------------------------------------
PRIMARY RESIDENCE, OWNER OCCUPIED
--------------------------------- ----------------- ------------ ----------- ------------ ------------ ---------------
o Single family unit $300,000 95% 95% 75% 75% $200,000
(detached, semi-detached,
attached)
o PUD (attached or
detached)
o Condo 1 to 4 stories
--------------------------------- ----------------- ------------ ----------- ------------ ------------ ---------------
$400,000 90% 95% 75% 75% $200,000
--------------------------------- ----------------- ------------ ----------- ------------ ------------ ---------------
$650,000 80% 95% 70% 75% $200,000
--------------------------------- ----------------- ------------ ----------- ------------ ------------ ---------------
$1,000,000 70% 95% 65% 75% $200,000
----------------------------------------------------------------------------------------------------------------------
PRIMARY RESIDENCE, OWNER OCCUPIED
----------------------------------------------------------------------------------------------------------------------
o 2 to 4 units $300,000 85% 85%
(detached, semi-detached,
attached)
o Condo 1 to 4 stories
--------------------------------- ----------------- ------------ -----------
$400,000 80% 85%
--------------------------------- ----------------- ------------ -----------
$650,000 75% 85%
--------------------------------- ----------------- ------------ -----------
$1,000,000 65% 85%
----------------------------------------------------------------------------------------------------------------------
SECOND/VACATION, OWNER OCCUPIED
----------------------------------------------------------------------------------------------------------------------
o Single family unit $300,000 85% 85%
(detached, semi-detached,
attached)
o PUD (attached or
detached)
o Condo 1 to 8 stories
--------------------------------- ----------------- ------------ -----------
$400,000 80% 85%
--------------------------------- ----------------- ------------ -----------
$650,000 75% 85%
--------------------------------- ----------------- ------------ -----------
$1,000,000 65% 85%
--------------------------------- ----------------- ------------ -----------
STATED INCOME DOCUMENTATION
--------------------------------- ---------------- ------------------------- ------------------------ ----------------
Property Type Maximum Loan Purchase or Rate/Term Cash-out Refi Maximum Cash
Amount Refi Out
--------------------------------- ---------------- ------------------------- ------------------------ ----------------
Max LTV Max CLTV Max LTV Max CLTV
----------------------------------------------------------------------------------------------------------------------
PRIMARY RESIDENCE, OWNER OCCUPIED
----------------------------------------------------------------------------------------------------------------------
o Single family unit $300,000 75% 75% Not Not N/A
(detached, semi-detached, eligible eligible
attached)
o PUD (attached or
detached)
o Condo 1 to 4 stories
--------------------------------- ----------------- ------------ ----------- ------------ ------------ ---------------
$400,000 75% 75% Not Not N/A
eligible eligible
--------------------------------- ----------------- ------------ ----------- ------------ ------------ ---------------
$650,000 70% 75% Not Not N/A
eligible eligible
--------------------------------- ----------------- ------------ ----------- ------------ ------------ ---------------
$1,000,000 65% 75% Not Not N/A
eligible eligible
----------------------------------------------------------------------------------------------------------------------
PRIMARY RESIDENCE, OWNER OCCUPIED
----------------------------------------------------------------------------------------------------------------------
o 2 to 4 units $300,000 70% 70%
(detached, semi-detached,
attached)
o Condo 1 to 4 stories
--------------------------------- ----------------- ------------ -----------
$400,000 65% 70%
--------------------------------- ----------------- ------------ -----------
$650,000 65% 70%
--------------------------------- ----------------- ------------ -----------
$1,000,000 60% 70%
----------------------------------------------------------------------------------------------------------------------
SECOND/VACATION, OWNER OCCUPIED
----------------------------------------------------------------------------------------------------------------------
o Single family unit $300,000 70% 70%
(detached, semi-detached,
attached)
o PUD (attached or
detached)
o Condo 1 to 8 stories
--------------------------------- ----------------- ------------ -----------
$400,000 65% 70%
--------------------------------- ----------------- ------------ -----------
$650,000 65% 70%
--------------------------------- ----------------- ------------ -----------
$1,000,000 60% 70%
--------------------------------- ----------------- ------------ -----------
For stated income documentation, the reserve requirement should be equal to at
least 6 months PITI (principal, interest, taxes and insurance) liquid reserves
remaining after closing, exclusive of closing costs and cash-out received unless
the member has at least a $50,000 equity investment in the subject property.
▇▇▇▇▇▇ ▇▇▇ DESKTOP UNDERWRITER
Loans underwritten by ▇▇▇▇▇▇ Mae Desktop Underwriter are acceptable for this
program as long as they fall withinU.S. Central's LTV guidelines, have full
appraisals and meet the below additional requirements. For each loan that has
been underwritten by ▇▇▇▇▇▇ ▇▇▇ Desktop Underwriter, U.S. Central requires that
a printed copy of the ▇▇▇▇▇▇ Mae Desktop Underwriter Feedback certificate be
submitted to U.S. Central in the loan file and that certificate must contain the
following information:
o Borrower Name,
o Lender Case Number,
o Recommendation of "Approved-Eligible" or "Approved-Ineligible",
o Verification Messages/ Approval Conditions,
o Observations,
o Total LTV Calculated by ▇▇▇▇▇▇ ▇▇▇ Desktop Underwriter,
o The full credit report provided by ▇▇▇▇▇▇ Mae Desktop Underwriter.
Each approval condition must be satisfied with the exception of loan
balance exceeding ▇▇▇▇▇▇ ▇▇▇ loan limits.
The following Credit Standards will apply to all loans approved through
Desktop Underwrite:
o Full documentation loans must have a credit score of 620 or above.
o Stated Income documentation must have a credit score of 680 or above.
o Housing history - no 30 day lates in the past 12 months and no 60 day
lates in the past 24 months
o Bankruptcy/Foreclosure - On Full documentation loans, a minimum of 4
years must have elapsed from discharge for credit scores of 680 or
greater, loans with a credit score of 679 or less a minimum of 7 years
must have elapsed. Stated Income loans require a minimum of 7 years
since discharge.
Maximum Debt-to-income "DTI" ratios for fixed rate loans are 36/40% and 33/38%
for ARM loans. ARM loans are qualified at the rate that could be in effect at
the start of the second year. Flexibility in ratio guidelines may be allowed
with adequate compensating factors and a minimum FICO credit score based on the
product:
------------------ -------------------- ------------------------------------
Grade Standard DTI Ratio Ratio with compensating factors
------------------ -------------------- ------------------------------------
A+, A 38% (ARM) 42% (ARM)
40% (FRM) 45% (FRM)
------------------ -------------------- ------------------------------------
A minimum of two of the following compensating factors are required for DTI
parameters to exceed stated program guidelines:
o Borrower's own equity reduces LTV by 10% below program maximum;
o Housing payment and total debt are less than or equal to the Borrower's
current payment levels;
o Six months reserves where two or fewer months reserves are required by
the program;
o LTV is 65% or less; or
o Ability to dedicate more income to housing expense as evidenced by
residual income (a standard of $2,000); only applies to full
documentation program.
In addition to at least two compensating factors as stated above, a minimum FICO
credit score for full documentation is required as follows:
o 680 credit score
No exception to LTV or CLTV parameters is allowed in conjunction with a DTI
exception. All loans must have a full appraisal.
EXHIBIT I
TERM SHEET
This TERM SHEET (the "Term Sheet") dated _____________, between EMC
MORTGAGE CORPORATION, as Purchaser, a Delaware corporation, with offices located
at Mac ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇,
▇▇▇▇▇-▇▇▇▇ (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 June 1, 2002, 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.
EMC MORTGAGE CORPORATION
By:
-----------------------------------------
Name:
---------------------------------------
Title:
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U.S. CENTRAL CREDIT UNION
By:
-----------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
SCHEDULE I
MORTGAGE LOAN SCHEDULE
EXHIBIT H-9
SERVICING AGREEMENT
PHH MORTGAGE
MORTGAGE LOAN FLOW PURCHASE, SALE & SERVICING AGREEMENT
This Mortgage Loan Flow Purchase, Sale & Servicing Agreement, dated as
of April 26, 2001, is entered into between EMC Mortgage Corporation, as
the Purchaser ("Purchaser"), Cendant Mortgage Corporation ("Cendant
Mortgage") and ▇▇▇▇▇▇'▇ Gate Residential Mortgage Trust (formerly known
as Cendant Residential Mortgage Trust) (the "Trust," together with
Cendant Mortgage, the "Sellers" and individually, each a "Seller"), as
the Sellers.
PRELIMINARY STATEMENT
1. Cendant Mortgage is engaged in the business, INTER ALIA, of making
loans to individuals, the repayment of which is secured by a first lien mortgage
on such individuals' residences (each, a "MORTGAGE LOAN"). The Trust is engaged
in the business of purchasing such Mortgage Loans from Cendant Mortgage and
selling same to investors.
2. Purchaser is engaged in the business, INTER ALIA, of purchasing
Mortgage Loans for its own account.
3. Cendant Mortgage has established certain terms, conditions and loan
programs, as described in Cendant Mortgage's Program and Underwriting Guidelines
(the "CENDANT GUIDE") and Purchaser is willing to purchase Mortgage Loans that
comply with the terms of such terms, conditions and loan programs. The
applicable provisions of the Cendant Guide are attached hereto as Schedule C.
4. Purchaser and Sellers desire to establish a flow program whereby
Cendant Mortgage will make Mortgage Loans which meet the applicable provisions
of the Cendant Guide, and Purchaser will, on a regular basis, purchase such
Mortgage Loans from Cendant Mortgage or the Trust, as applicable, provided the
parties agree on the price, date and other conditions or considerations as set
forth in this Agreement.
5. Purchaser and Sellers wish to prescribe the terms and manner of
purchase by the Purchaser and sale by the Sellers of the Mortgage Loans, and the
management and servicing of the Mortgage Loans by Cendant Mortgage, as the
Servicer (the "Servicer"), in this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth, the Purchaser and the Sellers agree as follows:
ARTICLE I: DEFINITIONS
Section 1.01 DEFINED TERMS.
Whenever used in this Agreement, the following words and phrases shall
have the following meaning specified in this Article:
"ACCEPTABLE SERVICING PROCEDURES: THE PROCEDURES, INCLUDING PRUDENT
COLLECTION AND LOAN ADMINISTRATION PROCEDURES, AND THE STANDARD OF CARE (I)
EMPLOYED BY PRUDENT MORTGAGE SERVICERS WHICH SERVICE MORTGAGE LOANS OF THE SAME
TYPE AS THE MORTGAGE LOANS IN HE JURISDICTIONS IN WHICH THE RELATED MORTGAGE
PROPERTIES ARE LOCATED AND (II) IN ACCORDANCE WITH FNMA GUIDE, SUBJECT TO ANY
VARIANCES NEGOTIATED WITH FNMA AND SUBJECT TO THE EXPRESS PROVISIONS OF THIS
AGREEMENT. SUCH STANDARD OF CARE SHALL NOT BE LOWER THAN THAT THE SERVICER
CUSTOMARILY EMPLOYS AND EXERCISES IN SERVICING AND ADMINISTERING SIMILAR
MORTGAGE LOANS FOR ITS OWN ACCOUNT AND SHALL BE IN FULL COMPLIANCE WITH ALL
FEDERAL, STATE, AND LOCAL LAWS, ORDINANCES, RULES AND REGULATIONS.
"Affiliate": When used with reference to a specified Person, any Person
that (i) directly or indirectly controls or is controlled by or is under common
control with the specified Person, (ii) is an officer of, partner in or trustee
of, or serves in a similar capacity with respect to, the specified person or of
which the specified Person is an officer, partner or trustee, or with respect to
which the specified Person serves in a similar capacity, or (iii) directly or
indirectly is the beneficial owner of 10% or more of any class of equity
securities of the specified Person or of which the specified person is directly
or indirectly the owner of 10% or more of any class of equity securities.
"Agreement": This Mortgage Loan Flow Purchase, Sale & Servicing
Agreement between the Purchaser and the Sellers.
"ALTA": The American Land Title Association or any successor thereto..
"Appraised Value": With respect to any Mortgaged Property, the lesser
of: (i) the value thereof as determined by an appraisal made for the originator
of the Mortgage Loan at the time of origination of the Mortgage Loan by an
appraiser who met the minimum requirements of FNMA and FHLMC; or (ii) the
purchase price paid for the related Mortgaged Property by the Mortgagor with the
proceeds of the Mortgage Loan; PROVIDED that, in the case of a Refinanced
Mortgage Loan, such value of the Mortgaged Property shall be based solely upon
the value determined by an appraisal made for the originator of such Refinanced
Mortgage Loan at the time of origination of such Refinanced Mortgage Loan by an
appraiser who met the minimum requirements of FNMA and FHLMC.
"ARM Loan": An "adjustable rate" Mortgage Loan, the Note Rate of which
is subject to periodic adjustment in accordance with the terms of the Mortgage
Note.
"Assignment": An individual assignment of a 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.
"Bankruptcy Code": The Bankruptcy Reform Act of 1978 (11 U.S.C. ▇▇.▇▇.
101-1330), as amended, modified, or supplemented from time to time, and any
successor statute, and all rules and regulations issued or promulgated in
connection therewith.
"Business Day": Any day other than (i) a Saturday or Sunday, or (ii) a
day on which the Federal Reserve is closed.
"Buydown Mortgage Loan": Any Mortgage Loan in respect of which,
pursuant to a buydown agreement, (i) the Mortgagor pays less than the full
monthly payments specified in the Mortgage Note for a specified period, and (ii)
the diference between the payments required under such buydown agreement and the
Mortgage Note is provided from buydown funds.
"Cendant Guide": As defined in paragraph 3 of the Preliminary Statement
to this Agreement.
"Closing Documents": With respect to the initial Funding Date, the
following documents:
(A) two counterparts to this Agreement
(B) the final Mortgage Loan Schedule for the related Transaction
(C) the related Term Sheet
"Code": The Internal Revenue Code of 1986, as amended.
"Collection Account": The separate trust account or accounts created
and maintained pursuant to Section 5.04 which shall be an Eligible Account and
which shall be entitled "Cendant Mortgage Corporation, as servicer and custodian
for the Purchaser of Mortgage Loans under the Mortgage Loan Flow Purchase, Sale
& Servicing Agreement, dated as of April 26, 2001 ."
"Condemnation Proceeds": All awards or settlements in respect of a
taking of an entire Mortgaged Property or a part thereof by exercise of the
power of eminent domain or condemnation.
"Credit Documents": Those documents, comprising part of the Mortgage
File, required of the Mortgagor, as described in Section 2 (Specific Loan
Program Guidelines) of the Guide.
"Cut Off Date": The first day of the month in which the related Funding
Date occurs.
"Defective Mortgage Loan": As defined in SECTION 3.04(3).
"Determination Date": The 15th day of each calendar month, commencing
on the 15th day of the month following the Funding Date, or, if such 15th day is
not a Business Day, the Business Day immediately preceding such 15th day.
"Due Date": With respect to any Mortgage Loan, the day of the month on
which each Monthly Payment is due thereon, exclusive of any days of grace.
"Eligible Account": One or more accounts (i) that are maintained with a
depository institution the long-term unsecured debt obligations of which have
been rated by each Rating Agency in one of its two highest rating categories at
the time of any deposit therein, (ii) that are trust accounts with any
depository institution held by the depository institution in its capacity as a
corporate trustee, or (iii) the deposits in which are insured by the FDIC (to
the limits established by the FDIC) and the uninsured deposits in which are
otherwise secured such that the Purchaser has a claim with respect to the funds
in such accounts or a perfected first security interest against any collateral
securing such funds that is superior to claims of any other depositors or
creditors of the depository institution with which such accounts are maintained.
In addition, solely with respect to Mortgage Loans which are not part of a
securitization, "Eligible Account" shall include any accounts that meet the
standards established from time to time by FNMA for eligible custodial
depositories.
"Environmental Assessment": A "Phase I" environmental assessment of a
Mortgaged Property prepared by an Independent Person who regularly conducts
environmental assessments and who has any necessary license(s) required by
applicable law and has five years experience in conducting environmental
assessments.
"Environmental Conditions Precedent to Foreclosure": As defined in
SECTION 5.15(v).
"Environmental Laws": All federal, state, and local statutes, laws,
regulations, ordinances, rules, judgments, orders, decrees or other governmental
restrictions relating to the environment or to emissions, discharges or releases
of pollutants, contaminants or industrial, toxic or hazardous substances or
wastes into the environment, including ambient air, surface water, ground water,
or land, or otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of pollutants,
contaminants or industrial, toxic or hazardous substances or wastes or the
cleanup or other remediation thereof.
"Escrow Account": The separate trust account or accounts created and
maintained pursuant to Section 5.06 which shall be an eligible account which
shall be entitled "Cendant Mortgage Corporation, as servicer and custodian for
the Purchaser under the Mortgage Loan Flow Purchase, Sale & and Servicing
Agreement, dated as of April 26, 2001 (as amended), and various mortgagors."
"Escrow Payments": The amounts constituting ground rents, taxes,
assessments, water rates, mortgage insurance premiums, fire and hazard insurance
premiums and other payments required to be escrowed by the Mortgagor with the
mortgagee pursuant to any Mortgage Loan.
"Event of Default": Any one of the conditions or circumstances
enumerated in SECTION 10.01.
"FDIC": The Federal Deposit Insurance Corporation or any successor
organization.
"FHLMC": The Federal Home Loan Mortgage Corporation (also known as
▇▇▇▇▇▇▇ Mac) or any successor organization.
"FHLMC Servicing Guide": The FHLMC/▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇' and Servicers'
Guide in effect on and after the Funding Date.
"Fidelity Bond": A fidelity bond to be maintained by the Servicer
pursuant to SECTION 5.12.
"FNMA": The Federal National Mortgage Association (also known as ▇▇▇▇▇▇
▇▇▇) or any successor organization.
"FNMA Guide": The FNMA/▇▇▇▇▇▇ Mae Selling Guide and the Servicing
Guide, collectively, in effect on and after the Funding Date.
"Funding Date": Each date that Purchaser purchases Mortgage Loans from
the Sellers hereunder.
"Gross Margin": With respect to each ARM Loan, the fixed percentage
added to the Index on each Rate Adjustment Date, as specified in each related
Mortgage Note and listed in the Mortgage Loan Schedule.
"Independent": With respect to any specified Person, such Person who:
(i) does not have any direct financial interest or any material indirect
financial interest in the applicable Mortgagor, the Sellers, the Purchaser, or
their Affiliates; and (b) is not connected with the applicable Mortgagor, the
Sellers, the Purchaser, or their respective Affiliates as an officer, employee,
promoter, underwriter, trustee, member, partner, shareholder, director, or
Person performing similar functions.
"Index": With respect to each ARM Loan, on each Rate Adjustment Date,
the applicable rate index set forth on the Mortgage Loan Schedule, which shall
be an index described on such Mortgage Loan Schedule.
"Insolvency Proceeding": With respect to any Person: (i) any case, action,
or proceeding with respect to such Person before any court or other
governmental authority relating to bankruptcy, reorganization, insolvency,
liquidation, receivership, dissolution, winding-up, or relief of debtors;
or (ii) any general assignment for the benefit of creditors, composition,
marshaling of assets for creditors, or other, similar arrangement in
respect of the creditors generally of such Person or any substantial
portion of such Person's creditors; in any case undertaken under federal,
state or foreign law, including the Bankruptcy Code.
"Insurance Proceeds": Proceeds of any Primary Insurance Policy, title
policy, hazard policy or other insurance policy covering a Mortgage Loan, if
any, to the extent such proceeds are not to be applied to the restoration of the
related Mortgaged Property or released to the Mortgagor in accordance Acceptable
Servicing Procedures.
"Lender Paid Mortgage Insurance Rate": The Lender Paid Mortgage
Insurance Rate for any lender-paid Primary Insurance Policy shall be a rate per
annum equal to the percentage shown on the Mortgage Loan Schedule.
"Legal Documents": Those documents, comprising part of the Mortgage
File, set forth in Schedule B-1 of this Agreement.
"Liquidation Proceeds": Amounts, other than Insurance Proceeds and
Condemnation Proceeds, received by the Servicer in connection with the
liquidation of a defaulted Mortgage Loan through trustee's sale, foreclosure
sale or otherwise, other than amounts received following the acquisition of an
REO Property in accordance with the provisions hereof.
"Loan-to-Value Ratio" or "LTV": With respect to any Mortgage Loan, the
original principal balance of such Mortgage Loan divided by the lesser of the
Appraised Value of the related Mortgaged Property or the purchase price. The
Loan-to-Value Ratio of any Additional Collateral Mortgage Loan (as defined in
Exhibit 10 hereto) shall be calculated by reducing the principal balance of such
Additional Collateral Mortgage Loan by the amount of Additional Collateral (as
defined in Exhibit 10 hereto) with respect to such Mortgage Loan.
"MAI Appraiser": With respect to any real property, a member of the
American Institute of Real Estate Appraisers with a minimum of 5 years of
experience appraising real property of a type similar to the real property being
appraised and located in the same geographical area as the real property being
appraised.
"Monthly Advance": The aggregate amount of the advances made by the
Servicer on any Remittance Date pursuant to and as more fully described in
SECTION 6.03.
"Monthly Payment": The scheduled monthly payment of principal and
interest on a Mortgage Loan which is payable by a Mortgagor under the related
Mortgage Note.
"Monthly Period": The period commencing on the day after each Record
Date during the term hereof and ending on the next succeeding Record Date during
the term hereof (or, if earlier, the date on which this Agreement terminates).
"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.
"Mortgaged Property": With respect to a Mortgage Loan, the underlying
real property securing repayment of a Mortgage Note, consisting of a fee simple
estate.
"Mortgage File": With respect to a particular Mortgage Loan, those
origination and servicing documents, escrow documents, and other documents as
are specified on Schedule B to this Agreement.
"Mortgage Loan": Each individual mortgage loan (including all documents
included in the Mortgage File evidencing the same, all Monthly Payments,
Principal Prepayments , Insurance Proceeds, Condemnation Proceeds, Liquidation
Proceeds, and other proceeds relating thereto, and any and all rights, benefits,
proceeds and obligations arising therefrom or in connection therewith) which is
the subject of this Agreement. The Mortgage Loans subject to this Agreement
shall be identified on Mortgage Loan Schedules prepared in connection with each
Funding Date.
"Mortgage Loan Remittance Rate": The gross interest rate of the
Mortgage Loans less the Servicing Fee Rate and Lender Paid Mortgage Insurance
Rate, if applicable.
" MORTGAGE LOAN SCHEDULE: With respect to the Mortgage Loans included in a Loan
Pool to be sold pursuant to this Agreement on any Funding Date, the Schedule or
Schedules of Mortgage Loans agreed to by the parties that describes such
Mortgage Loans, which Schedule shall set forth at least the following
information with respect to each Mortgage Loan to the extent applicable: (1) the
Mortgage Loan identifying number, (2) the city, state and zip code of the
Mortgaged Property, (3) the Mortgage Interest Rate as of the applicable Cut-off
Date, (4) the Net Rate as of the applicable Cut-off Date, (5) the amount of the
Monthly Payment as of the applicable Cut-off Date, (6) with respect to each ARM
Loan, the Gross Margin, (7) the scheduled or stated Maturity Date, (8) the
Cut-off Date Principal Balance of the Mortgage Loan, (9) the Loan-to-Value Ratio
at origination, (10) with respect to each ARM Loan, the first Interest Rate
Adjustment Date immediately following the Closing Date for such Mortgage Loan,
(11) with respect to each ARM Loan, the Maximum Mortgage Interest Rate, (12) the
Mortgagor's first and last name, (13) a code indicating the Mortgage property
occupancy, (14) the type of residential dwelling constituting the Mortgaged
Property, (15) the original months to maturity, (16) the original date of the
Mortgage Loan and the remaining months to maturity from the Cut-off Date based
on the original amortization schedule, (17) the date on which the first Monthly
Payment was due on the Mortgage Loan, (18) the amount of the Monthly Payment at
origination, (19) the last Due Date on which a Monthly Payment was actually
applied to the Unpaid Principal Balance, (20) the original principal amount of
the Mortgage Loan, (21) a code indicating the purpose of the loan (i.e.,
purchase financing, rate/term refinancing, cash-out refinancing), (22) the
Mortgage Interest Rate at origination, (23) with respect to each ARM Loan, the
periodic rate cap, (24) with respect to each ARM Loan, the Index, (25) a code
indicating whether the Mortgage Loan is an ARM Loan or a fixed rate Mortgage
Loan, (26) a Primary Mortgage Insurance insurer code, percent and policy number
(if applicable), (27) the Appraised Value of the Mortgaged Property, (28) the
sale price of the Mortgaged Property, if applicable, (29) a code indicating if
the Mortgage Loan is subject to a prepayment penalty, (30) the Servicing Fee
Rate, (31) a code indicating whether or not the Mortgage Loan is the subject of
a lender-paid Primary Insurance Policy and, if so the name of the insurer, the
coverage percentage, the policy number and the Lender Paid Mortgage Insurance
Rate (32) if the Due Date is other than the first day of the month, the Due
Date, (33) the first Interest Rate Adjustment Date after origination, (34) the
Initial Rate Cap, (35) the Minimum Mortgage Interest Rate, (36) a code
indicating the document type (e.g., full, alt, etc.), (37) a credit score or
mortgage score, (38) a code indicating whether or not the Mortgage Loan is
subjuect of a buydown and, if so, the period and terms o the buydowns (e.g.
3-2-1, 2-1, ect), (39) a code indicating whether the Mortgage Loan is an
additional collateral Mortgage Loan and the product code (e.g., Mortgage 100,
Parent Power, ect.), and (40) if applicable, the pledge amount, (41) if
applicable, the effective loan-to-value ratio. In addition, with respect to
Mortgage Loans in the aggregate, the Schedule shall set forth at least the
following information for Mortgage Loans: Cut-Off Date Principal Balance,
weighted average of the Net Rates and weighted average time to maturity.
"Mortgage Loan Schedule" is the collective reference to each of the Mortgage
Loan Schedules delivered by the Sellers to the Purchaser pursuant to this
Agreement.
Mortgage Loan Schedule": The list of Mortgage Loans identified on each
Funding Date that sets forth the information with respect to each Mortgage Loan
that is specified on Schedule A hereto. A Mortgage Loan Schedule will be
prepared for each Funding Date."Mortgage Note": The note or other evidence of
the indebtedness of a Mortgagor secured by a Mortgage.
"Mortgagor": The obligor on a Mortgage Note.
"Note Rate": With respect to any Mortgage Loan at any time any
determination thereof is to be made, the annual rate at which interest accrues
thereon.
"Officers' Certificate": A certificate signed by (i) the President or a
Vice President and (ii) the Treasurer or the Secretary or one of the Assistant
Treasurers or Assistant Secretaries of the Servicer, and delivered by the
Servicer to the Purchaser as required by this Agreement.
"Payoff": With respect to any Mortgage Loan, any payment or recovery
received in advance of the last scheduled Due Date of such Mortgage Loan, which
payment or recovery consists of principal in an amount equal to the outstanding
principal balance of such Mortgage Loan, all accrued and unpaid prepayment
penalties, premiums, and/or interest with respect thereto, and all other unpaid
sums due with respect to such Mortgage Loan.
"Permitted Investments": Any one or more of the obligations and
securities listed below which investment provides for a date of maturity not
later than the Determination Date in each month:
(2) (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; AND
(3) (II) FEDERAL FUNDS, DEMAND AND TIME DEPOSITS IN,
CERTIFICATES OF DEPOSITS OF, OR BANKERS' ACCEPTANCES ISSUED BY, ANY
DEPOSITORY INSTITUTION OR TRUST COMPANY INCORPORATED OR ORGANIZED 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, SO LONG AS AT THE TIME OF SUCH INVESTMENT OR CONTRACTUAL
COMMITMENT PROVIDING FOR SUCH INVESTMENT THE COMMERCIAL PAPER OR OTHER
SHORT-TERM DEBT OBLIGATIONS OF SUCH DEPOSITORY INSTITUTION OR TRUST
COMPANY (OR, IN THE CASE OF A DEPOSITORY INSTITUTION OR TRUST COMPANY
WHICH IS THE PRINCIPAL SUBSIDIARY OF A HOLDING COMPANY, THE COMMERCIAL
PAPER OR OTHER SHORT-TERM DEBT OBLIGATIONS OF SUCH HOLDING COMPANY) ARE
RATED "P-1" BY ▇▇▇▇▇'▇ INVESTORS SERVICE, INC. AND THE LONG-TERM DEBT
OBLIGATIONS OF SUCH HOLDING COMPANY) ARE RATED "P-1" BY ▇▇▇▇▇'▇
INVESTORS SERVICE, INC. AND THE LONG-TERM DEBT OBLIGATIONS OF SUCH
DEPOSITORY INSTITUTION OR TRUST COMPANY (OR, IN THE CASE OF A
DEPOSITORY INSTITUTION OR TRUST COMPANY WHICH IS THE PRINCIPAL
SUBSIDIARY OF A HOLDING COMPANY, THE LONG-TERM DEBT OBLIGATIONS OF SUCH
HOLDING COMPANY) ARE RATED AT LEAST "AA" BY ▇▇▇▇▇'▇ INVESTORS SERVICE,
INC.;
PROVIDED, HOWEVER, that no such instrument shall be an Eligible Investment if
such instrument evidences either (i) a right to receive only interest payments
with respect to the obligations underlying such instrument, or (ii) both
principal and interest payments derived from obligations underlying such
instrument and the principal and interest payments with respect to such
instrument provide a yield to maturity of greater than 120% of the yield to
maturity at par of such underlying obligations.
"Person": Any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
incorporated organization or government or any agency or political subdivision
thereof.
"Prepaid Monthly Payment": Any Monthly Payment received prior to its
scheduled Due Date and which is intended to be applied to a Mortgage Loan on its
scheduled Due Date.
"Primary Insurance Policy": Each primary policy of mortgage insurance
in effect with respect to a Mortgage Loan and as so indicated on the Mortgage
Loan Schedule, or any replacement policy therefor obtained by the Servicer
pursuant to Section 5.08.
"Principal Prepayment": Any payment or other recovery of principal on a
Mortgage Loan (including a Payoff), other than a Monthly Payment or a Prepaid
Monthly Payment which is received in advance of its scheduled Due Date,
including any prepayment penalty or premium thereon, which is not accompanied by
an amount of interest representing scheduled interest due on any date or dates
in any month or months subsequent to the month of prepayment and which is
intended to reduce the principal balance of the Mortgage Loan.
"Purchaser": EMC Mortgage Corporation or its successor in interest or
any successor under this Agreement appointed as herein provided.
"Purchaser's Account": The account of the Purchaser at a bank or other
entity most recently designated in a written notice by the Purchaser to the
Sellers as the "Purchaser's Account."
"Purchase Price": as to each Mortgage Loan to be sold hereunder, the
price set forth in the Purchase Price and Terms Letter and related Term Sheet.
"Purchase Price and Terms Letter": With respect to each purchase of
Mortgage Loans, that certain letter agreement setting forth the general terms
and conditions of such transaction and identifying the Mortgage Loans to be
purchased thereunder by and between the Seller and the Purchaser.
"Qualified Mortgage Insurer": American Guaranty Corporation,
Commonwealth Mortgage Assurance Company, General Electric Mortgage Insurance
Companies, Mortgage Guaranty Insurance Corporation, PMI Mortgage Insurance
Company, Republic Mortgage Insurance Company or United Guaranty Residential
Insurance Corporation.
"Rate Adjustment Date": With respect to each ARM Loan, the date on
which the Note Rate adjusts.
"Rating Agency": Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, ▇▇▇▇▇'▇ Investors Service, Inc., Fitch Investors Service,
Inc. or Duff & ▇▇▇▇▇▇ Credit Rating Co.
"Record Date": The close of business of the last Business Day of the
month preceding the month of the related Remittance Date.
"Refinanced Mortgage Loan": A Mortgage Loan that 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" within the meaning
of Section 860D of the Internal Revenue Code or any similar tax vehicle
providing for the pooling of assets (such as a Financial Asset Security
Investment Trust).
"Remittance Date": The 18th day of each calendar month, commencing on
the 18th day of the month following the Funding Date, or, if such 18th day is
not a Business Day, then the next Business Day immediately preceding such 18th
day.
"Remittance Rate": With respect to each Mortgage Loan, the related Note
Rate minus the Servicing Fee Rate.
"REO Disposition": The final sale by the Servicer of any REO Property.
"REO DISPOSITION PROCEEDS": Amounts received by the Company 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 5.13.
"Repurchase Price": As to (a) any Defective Mortgage Loan required to
be repurchased hereunder with respect to which a breach occurred or (b) any
Mortgage Loan required to be repurchased pursuant to SECTION 3.04 and/or SECTION
7.02, an amount equal to the Unpaid Principal Balance of such Mortgage Loan at
the time of repurchase; PLUS (2) interest on such Mortgage Loan at the
applicable Note Rate from the last date through which interest has been paid and
distributed to the Purchaser hereunder to the end of the month of repurchase;
MINUS (3) any amounts received in respect of such Defective Mortgage Loan which
are being held in the Collection Account for future remittance.
"Scheduled Principal Balance": With respect to any Mortgage Loan, (i)
the outstanding principal balance as of the Funding Date after application of
principal payments due on or before such date whether or not received, minus
(ii) all amounts previously remitted to the Purchaser with respect to such
Mortgage Loan representing (a) payments or other recoveries of principal, or (b)
advances of principal made pursuant to Section 6.03.
"Sellers": Cendant Mortgage Corporation, a New Jersey corporation and
▇▇▇▇▇▇'▇ Gate Residential Mortgage Trust (formerly known as Cendant Residential
Mortgage Trust), a Delaware business trust, or their successors in interest or
any successor under this Agreement appointed as herein provided.
"Servicer": Cendant Mortgage Corporation, a New Jersey corporation.
"Servicer's Mortgage File": The documents pertaining to a particular
Mortgage Loan which are specified on EXHIBIT S-1 attached hereto and any
additional documents required to be included or added to the "Servicer's
Mortgage File" pursuant to this Agreement.
"Servicing Advances": All "out of pocket" costs and expenses that are
customary, reasonable and necessary which are incurred by the Servicer in the
performance of its servicing obligations hereunder, including (without
duplication) (i) reasonable attorneys' fees and (ii) the cost of (a) the
preservation, restoration and protection of the Mortgaged Property, (b) any
enforcement or judicial proceedings, including foreclosures, (c) the servicing,
management and liquidation of any Specially Serviced Mortgaged Loans and/or any
REO Property, and (d) compliance with the Servicer's obligations under SECTION
5.08.
"Servicing Event": Any of the following events with respect to any
Mortgage Loan: (i) any Monthly Payment being more than 60 days delinquent; (ii)
any filing of an Insolvency Proceeding by or on behalf of the related Mortgagor,
any consent by or on behalf of the related Mortgagor to the filing of an
Insolvency Proceeding against such Mortgagor, or any admission by or on behalf
of such Mortgagor of its inability to pay such Person's debts generally as the
same become due; (iii) any filing of an Insolvency Proceeding against the
related Mortgagor that remains undismissed or unstayed for a period of 60 days
after the filing thereof; (iv) any issuance of any attachment or execution
against, or any appointment of a conservator, receiver or liquidator with
respect to, all or substantially all of the assets of the related Mortgagor or
with respect to any Mortgaged Property; (v) any receipt by the Servicer of
notice of the foreclosure or proposed foreclosure of any other lien on the
related Mortgaged Property; (vi) any proposal of a material modification (as
reasonably determined by the Seller) to such Mortgage Loan due to a default or
imminent default under such Mortgage Loan; or (vii) in the reasonable judgment
of the Servicer, the occurrence, or likely occurrence within 60 days, of a
payment default with respect to such Mortgage Loan that is likely to remain
uncured by the related Mortgagor within 60 days thereafter.
"Servicing Fee": The annual fee, payable monthly to the Servicer out of
the interest portion of the Monthly Payment actually received on each Mortgage
Loan. The Servicing Fee with respect to each Mortgage Loan for any calendar
month (or a portion thereof) shall be 1/12 of the product of (i) the Scheduled
Principal Balance of the Mortgage Loan and (ii) the Servicing Fee Rate
applicable to such Mortgage Loan.
"Servicing Fee Rate": (i) with respect to any ARM Loan, 0.375% per
annum; PROVIDED that, prior to the first Rate Adjustment Date with respect to
any such Mortgage Loan, such rate may be, at the Servicer's option, not less
than 0.25% per annum; and (ii) with respect to any Mortgage Loan other than an
ARM Loan, 0.25% per annum. Such rate will be indicated on the Mortgage Loan
Schedule.
"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 written list of servicing officers furnished by the Servicer
to the Purchaser upon request therefor by the Purchaser, as such list may from
time to time be amended.
"Specially Serviced Mortgage Loan": A Mortgage Loan as to which a
Servicing Event has occurred and is continuing.
"Unpaid Principal Balance": With respect to any Mortgage Loan, at any
time, the actual outstanding principal balance then payable by the Mortgagor
under the terms of the related Mortgage Note.
ARTICLE II: SALE AND CONVEYANCE OF MORTGAGE LOANS; POSSESSION OF
MORTGAGE FILES; BOOKS AND RECORDS; DELIVERY OF MORTGAGE LOAN DOCUMENTS
SECTION 2.01 SALE AND CONVEYANCE OF MORTGAGE LOANS.
Seller agrees to sell and Purchaser agrees to purchase, from time to
time, those certain Mortgage Loans identified in a Mortgage Loan Schedule, on
the price and terms set forth herein. Purchaser, on any Funding Date, shall be
obligated to purchase only such Mortgage Loans set forth in the applicable
Mortgage Loan Schedule attached to the applicable Term Sheet, subject to the
terms and conditions of this Agreement and the applicable Term Sheet.
Purchaser will purchase Mortgage Loan(s) from Seller, from time to time
on such Funding Dates as may be agreed upon by Purchaser and Seller.The closing
shall, at Purchaser's option 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. On the Funding Date and subject to the terms and conditions
of this Agreement, each Seller will sell, transfer, assign, set over and convey
to the Purchaser, without recourse except as set forth in this Agreement, and
the Purchaser will purchase, all of the right, title and interest of the
applicable Seller in and to the Mortgage Loans being conveyed by it hereunder,
as identified on the Mortgage Loan Schedule.
Examination of the Mortgage Files may be made by Purchaser or its
designee as follows. No later than five business days prior to the Funding Date,
Seller will deliver to Purchaser or its designee Legal Documents required
pursuant to Schedule B. Upon Purchaser's request, Seller shall make the Credit
Documents available to Purchaser for review, at Seller's place of business and
during reasonable business hours. If Purchaser makes such examination prior to
the Funding Date and identifies any Mortgage Loans that do not conform to the
Cendant Guide or are otherwise unacceptable to Purchaser, such Mortgage Loans
will be deleted from the Mortgage Loan Schedule at Purchaser's discretion.
Purchaser may, at its option and without notice to Seller, purchase all or part
of the Mortgage Loans without conducting any partial or complete examination.
The fact that Purchaser has conducted or has failed to conduct any partial or
complete examination of the Mortgage Loan files shall not affect Purchaser's
rights to demand repurchase, substitution or other relief as provided herein.
On the Funding Date and in accordance with the terms herein, Purchaser
will pay to Seller, by wire transfer of immediately available funds, the
Purchase Price, together with interest at the Mortgage Loan Remittance Rate from
the Cut-Off Date to the Funding Date, according to the instructions to be
provided, respectively, by Cendant Mortgage and the Trust.
Purchaser shall be entitled to all scheduled principal due after the
Cut-Off Date, all other recoveries of principal collected after the Funding Date
and all payments of interest on the Mortgage Loans (minus that portion of any
such payment which is allocable to the period prior to the Funding Date). The
principal balance of each Mortgage Loan as of the Funding Date is determined
after application of payments of principal due on or before the Funding Date
whether or not collected. Therefore, payments of scheduled principal and
interest prepaid for a due date beyond the Funding Date shall not be applied to
the principal balance as of the Funding Date. Such prepaid amounts shall be the
property of Purchaser. Seller shall hold any such prepaid amounts for the
benefit of Purchaser for subsequent remittance by Seller to Purchaser. All
scheduled payments of principal due on or before the Funding Date and collected
by Seller after the Funding Date shall belong to Seller.
Section 2.02 POSSESSION OF MORTGAGE FILES.
Upon the sale of any Mortgage Loan, the ownership of such Mortgage
Loan, including the Mortgage Note, the Mortgage, the contents of the related
Mortgage File and all rights, benefits, payments, proceeds and obligations
arising therefrom or in connection therewith, shall then be vested in the
Purchaser, and the ownership of all records and documents with respect to such
Mortgage Loan prepared by or which come into the possession of the Seller shall
immediately vest in the Purchaser and, to the extent retained by the Seller,
shall be retained and maintained, in trust, by the Seller at the will of the
Purchaser in a custodial capacity only. The contents of such Mortgage File not
delivered to the Purchaser or Purchaser's designee are and shall be held in
trust by the Seller for the benefit of the Purchaser as the owner thereof and
the Sellers' possession of the contents of each Mortgage File so retained is at
the will of the Purchaser for the sole purpose of servicing the related Mortgage
Loan, and such retention and possession by the Seller is in a custodial capacity
only. Mortgage Files shall be maintained separately from the other books and
records of the Seller. Each Seller shall release from its custody the contents
of any Mortgage File only in accordance with written instructions from the
Purchaser, except where such release is required as incidental to the Servicer's
servicing of the Mortgage Loans or is in connection with a repurchase of any
such Mortgage Loan pursuant to SECTION 3.04.
Any documents released to a Seller or the Servicer in connection with
the foreclosure or servicing of any Mortgage Loan shall be held by such Person
in trust for the benefit of the Purchaser in accordance with this SECTION 2.02.
Such Person shall return to the Purchaser such documents when such Person's need
therefor in connection with such foreclosure or servicing no longer exists
(unless sooner requested by the Purchaser); PROVIDED that, if such Mortgage Loan
is liquidated, then, upon the delivery by a Seller or the Servicer to the
Purchaser of a request for the release of such documents and a certificate
certifying as to such liquidation, the Purchaser shall promptly release and, to
the extent necessary, deliver to such Person such documents.
At the option of Puchaser, the Mortgage Files shall be held by document
custodian in accordance with the terms of a custodial agreement.
Section 2.03 BOOKS AND RECORDS.
The sale of each of the Mortgage Loans shall be reflected on the
applicable Seller's balance sheet and other financial statements as a sale of
assets by the applicable Seller. Each Seller shall be responsible for
maintaining, and shall maintain, a complete set of books and records for the
Mortgage Loans it conveyed to the Purchaser which shall be clearly marked to
reflect the sale of each Mortgage Loan to the Purchaser and the ownership of
each Mortgage Loan by the Purchaser.
Section 2.04 DEFECTIVE DOCUMENTS; DELIVERY OF MORTGAGE LOAN DOCUMENTS .
Subsequent to the Funding Date, if the Purchaser or either Seller finds
any document or documents constituting a part of a Mortgage File to be defective
or missing in any material respect (in this Section 2.04, a "Defect"), the party
discovering such Defect shall promptly so notify the other parties. If the
Defect pertains to the Mortgage Note or the Mortgage, then the applicable Seller
shall have a period of 45 days within which to correct or cure any such defect
after the earlier of such Seller's discovery of same or such Seller being
notified of same. If such Defect can ultimately be cured but is not reasonably
expected to be cured within such 45 day period, such Seller shall have such
additional time as is reasonably determined by the Purchaser to cure or correct
such Defect provided that such Seller has commenced curing or correcting such
Defect and is diligently pursuing same. If the Defect pertains to any other
document constituting a part of a Mortgage File, then such Seller shall have a
period of 90 days within which to correct or cure any such Defect after the
earlier of such Seller's discovery of same or such Seller being notified of
same. If such Defect can ultimately be cured but is not reasonably expected to
be cured within the 90 day period, then such Seller shall have such additional
time as is reasonably determined by the Purchaser to cure or correct such Defect
provided such Seller has commenced curing or correcting such Defect and is
diligently pursuing same. Cendant Mortgage hereby covenants and agrees that, if
any material Defect cannot be corrected or cured, the related Mortgage Loan
shall automatically constitute, upon the expiration of the applicable cure
period described above and without any further action by any other party, a
Defective Mortgage Loan, whereupon Cendant Mortgage shall repurchase such
Mortgage Loan by paying to the Purchaser the Repurchase Price therefor in
accordance with SECTION 3.04(3).
The applicable Seller will, with respect to each Mortgage Loan to be
purchased by the Purchaser, deliver and release to the Purchaser the Legal
Documents as set forth in Section 2.01. If the applicable Seller cannot deliver
an original Mortgage with evidence of recording thereon, original assumption,
modification and substitution agreements with evidence of recording thereon or
an original intervening assignment with evidence of recording thereon within the
applicable time periods, then such Seller shall promptly deliver to the
Purchaser such original Mortgages and original intervening assignments with
evidence of recording indicated thereon upon receipt thereof from the public
recording official, except in cases where the original Mortgage or original
intervening assignments are retained permanently by the recording office, in
which case, such Seller shall deliver a copy of such Mortgage or intervening
assignment, as the case may be, certified by such public recording office to be
a true and complete copy of the recorded original thereof.
If the original Mortgage was not delivered pursuant to the preceding
paragraph, then the applicable Seller shall use its best efforts to promptly
secure the delivery of such originals and shall cause such originals to be
delivered to the Purchaser promptly upon receipt thereof. Notwithstanding the
foregoing, if the original Mortgage, original assumption, modification, and
substitution agreements, the original of any intervening assignment or the
original policy of title insurance is not so delivered to the Purchaser within
180 days following the Funding Date, then, upon written notice by the Purchaser
to Cendant Mortgage, the Purchaser may, in its sole discretion, then elect (by
providing written notice to Cendant Mortgage) to treat such Mortgage Loan as a
Defective Mortgage Loan, whereupon Cendant Mortgage shall repurchase such
Mortgage Loan by paying to the Purchaser the Repurchase Price therefor in
accordance with SECTION 3.04(3). The fact that the Purchaser has conducted or
failed to conduct any partial or complete examination of the Mortgage Files
shall not affect its right to demand repurchase or any other remedies provided
in this Agreement.
At the Purchaser's request, the Assignments shall be promptly recorded
in the name of the Purchaser or in the name of a Person designated by the
Purchaser in all appropriate public offices for real property records. If any
such Assignment is lost or returned unrecorded because of a defect therein, then
the applicable Seller shall promptly prepare a substitute Assignment to cure
such defect and thereafter cause each such Assignment to be duly recorded. All
recording fees related to such a one-time recordation of the Assignments to or
by a Seller shall be paid by the applicable Seller.
Section 2.05 TRANSFER OF MORTGAGE LOANS.
Subject to the provisions of this SECTION 2.05, the Purchaser shall
have the right, without the consent of the Sellers, at any time and from time to
time, to assign any of the Mortgage Loans and all or any part of its interest
under this Agreement and designate any person to exercise any rights of the
Purchaser hereunder, and the assignees or designees shall accede to the rights
and obligations hereunder of the Purchaser with respect to such Mortgage Loans.
The Sellers recognize that the Mortgage Loans may be divided into "packages" for
resale ("Mortgage Loan Packages").
All of the provisions of this Agreement shall inure to the benefit of
the Purchaser and any such assignees or designees. All references to the
Purchaser shall be deemed to include its assignees or designees. Utilizing
resources reasonably available to the Seller without incurring any cost except
the Seller's overhead and employees' salaries, the applicable Seller shall
cooperate in any such assignment of the Mortgage Loans and this Agreement;
PROVIDED that the Purchaser shall bear all costs associated with any such
assignment of the Mortgage Loans and this Agreement other than such Seller's
overhead or employees' salaries.
The Servicer and the Purchaser acknowledge that the Servicer shall
continue to remit payments to the Purchaser on the Remittance Date after the
transfer of the Mortgage Loans, unless the Servicer was notified in writing of
the new record owner of the Mortgage Loans prior to the immediately preceding
Record Date, in which case, the Servicer shall remit to the new record owner (or
trustee or master servicer, as the case may be) of the Mortgage Loans.
Any prospective assignees of the Purchaser who have entered into a
commitment to purchase any of the Mortgage Loans may review and underwrite the
Servicer's servicing and origination operations, upon reasonable prior notice to
the Servicer, and the Servicer shall cooperate with such review and underwriting
to the extent such prospective assignees request information or documents that
are reasonably available and can be produced without unreasonable expense or
effort. The Servicer shall make the Mortgage Files related to the Mortgage Loans
held by the Servicer available at the Servicer's principal operations center for
review by any such prospective assignees during normal business hours upon
reasonable prior notice to the Servicer (in no event less than 5 Business Days
prior notice). The Servicer may, in its sole discretion, require that such
prospective assignees sign a confidentiality agreement with respect to such
information disclosed to the prospective assignee which is not available to the
public at large and a release agreement with respect to its activities on the
Servicer's premises.
The Servicer shall keep at its servicing office books and records in
which, subject to such reasonable regulations as it may prescribe, the Servicer
shall note transfers of Mortgage Loans. The Purchaser may, subject to the terms
of this Agreement, sell and transfer, in whole or in part, any or all of the
Mortgage Loans; provided that no such sale and transfer shall be binding upon
the Servicer unless such transferee shall agree in writing to an Assignment,
Assumption and Recognition Agreement, in substantially the form of EXHIBIT 2.05
attached hereto, and an executed copy of such Assignment, Assumption and
Recognition Agreement shall have been delivered to the Servicer. The Servicer
shall evidence its acknowledgment of any transfers of the Mortgage Loans to any
assignees of the Purchaser by executing such Assignment, Assumption and
Recognition Agreement. The Servicer shall ▇▇▇▇ its books and records to reflect
the ownership of the Mortgage Loans by any such assignees, and the previous
Purchaser shall be released from its obligations hereunder accruing after the
date of transfer to the extent such obligations relate to Mortgage Loans sold by
the Purchaser. This Agreement shall be binding upon and inure to the benefit of
the Purchaser and the Servicer and their permitted successors, assignees and
designees.
ARTICLE III: REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SELLER;
REPURCHASE; REVIEW OF MORTGAGE LOANS
Section 3.01 REPRESENTATIONS AND WARRANTIES OF EACH SELLER.
Each Seller, as to itself, represents, warrants and covenants to the
Purchaser that as of each Funding Date or as of such date specifically provided
herein: (1) DUE ORGANIZATION. The Seller is an entity duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization, and has all licenses necessary to carry on its business now being
conducted and is licensed, qualified and in good standing under the laws of each
state where a Mortgaged Property is located or is otherwise exempt under
applicable law from such qualification or is otherwise not required under
applicable law to effect such qualification; no demand for such qualification
has been made upon the Seller by any state having jurisdiction and in any event
the Seller is or will be in compliance with the laws of any such state to the
extent necessary to enforce each Mortgage Loan and with respect to Cendant
Mortgage, service each Mortgage Loan in accordance with the terms of this
Agreement.
(2) DUE AUTHORITY. Cendant Mortgage had the full power and authority
and legal right to originate the Mortgage Loans that it originated, if any, and
to acquire the Mortgage Loans that it acquired. The Seller has the full power
and authority to hold 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. The Seller has duly authorized the execution,
delivery and performance of this Agreement, has duly executed and delivered this
Agreement, and this Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a legal, valid and binding obligation of
the Seller, enforceable against it in accordance with its terms, subject to
applicable bankruptcy, reorganization, receivership, conservatorship,
insolvency, moratorium and other laws relating to or affecting creditors' rights
generally or the rights of creditors of banks and to the general principles of
equity (whether such enforceability is considered in a proceeding in equity or
at law).
(3) NO CONFLICT. The execution and delivery of this Agreement, the
acquisition or origination, as applicable, of the Mortgage Loans by the Seller,
the sale 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, will not conflict with or result in a breach of
any of the terms, conditions or provisions of the Seller's organizational
documents and bylaws or any legal restriction or any agreement or instrument to
which the Seller is now a party or by which it is bound, or constitute a default
or result in an acceleration under any of the foregoing, or result in the
violation of any law, rule, regulation, order, judgment or decree to which the
Seller or its property is subject, or impair the ability of the Purchaser to
realize on the Mortgage Loans;
(4) ABILITY TO PERFORM. The Seller does not believe, nor does it have
any reason or cause to believe, that it cannot perform each and every covenant
contained in this Agreement;
(5) NO MATERIAL DEFAULT. Neither the Seller nor any of its Affiliates
is in material default under any agreement, contract, instrument or indenture of
any nature whatsoever to which the Seller or any of its Affiliates is a party or
by which it (or any of its assets) is bound, which default would have a material
adverse effect on the ability of the Seller to perform under this Agreement,
nor, to the best of the Seller's knowledge, has any event occurred which, with
notice, lapse of time or both, would constitute a default under any such
agreement, contract, instrument or indenture and have a material adverse effect
on the ability of the Seller to perform its obligations under this Agreement;
(6) FINANCIAL STATEMENTS. Cendant Mortgage has delivered to the
Purchaser financial statements as to its fiscal year ended DECEMBER 31, 2000
Except as has previously been disclosed to the Purchaser in writing: (a) such
financial statements fairly present the results of operations and changes in
financial position for such period and the financial position at the end of such
period of Cendant Mortgage and its subsidiaries; and (b) such financial
statements are true, correct and complete as of their respective dates and have
been prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as set forth in the
notes thereto. The Trust has delivered to the Purchaser financial statements
dated as of DECEMBER 31, 2000 and a copy of its Offering Circular dated May 21,
1998 (the "Trust Financials") and such Trust Financials fairly present the
results of operations and changes in financial position for such period and the
financial position at the end of such period of the Trust. Except as has
previously been disclosed to the Purchaser in writing, there has been no change
in such Trust Financials since their date and the Trust is not aware of any
errors or omissions therein;
(7) NO CHANGE IN BUSINESS. There has been no change in the business,
operations, financial condition, properties or assets of the applicable Seller
since (i) in the case of Cendant Mortgage, the date of its financial statements
and (ii) in the case of the Trust, the date of delivery of the Trust Financials,
that would have a material adverse effect on the ability of the applicable
Seller to perform its obligations under this Agreement;
(8) NO LITIGATION PENDING. There is no action, suit, proceeding or
investigation pending or, to the best of the Seller's knowledge, threatened,
against the Seller, which, either in any one instance or in the aggregate, if
determined adversely to the Seller would adversely affect the sale of the
Mortgage Loans to the Purchaser or the execution, delivery or enforceability of
this Agreement or result in any material liability of the Seller, or draw into
question the validity of this Agreement or the Mortgage Loans, or have a
material adverse effect on the financial condition of the Seller;
(9) NO CONSENT REQUIRED. No consent, approval, authorization or order
of any court or governmental agency or body is required for the execution,
delivery and performance by the Seller of or compliance by the Seller with this
Agreement, the delivery of the Mortgage Files to the Purchaser, the sale of the
Mortgage Loans to the Purchaser or the consummation of the transactions
contemplated by this Agreement or, if required, such approval has been obtained
prior to the Funding Date;
(10) ORDINARY COURSE OF BUSINESS. The consummation of the transactions
contemplated by this Agreement is in the ordinary course of business of the
Seller, and the transfer, assignment and conveyance of the Mortgage Notes and
the Mortgages by the Seller pursuant to this Agreement are not subject to the
bulk transfer or any similar statutory provisions in effect in any applicable
jurisdiction;
(11) NO BROKER. The Seller has not dealt with any broker or agent or
anyone else who might be entitled to a fee or commission in connection with this
transaction; and
(12) NO UNTRUE INFORMATION. Neither this Agreement nor any statement,
report or other agreement, document or instrument furnished or to be furnished
pursuant to this Agreement contains or in connection with the transactions
contemplated herein or will contain any materially untrue statement of fact or
omits or will omit to state a fact necessary to make the statements contained
therein not misleading.
(13) NO FRAUD. Each Mortgage Loan being sold by the Seller to the
Purchaser hereunder was originated and/or acquired by the Seller and sold to the
Purchaser in each instance without any conduct (whether directed toward the
Purchaser or otherwise) constituting fraud or misrepresentation on the part of
the Seller;
(14) NO ADVERSE SELECTION. The Seller has used no adverse selection
procedures in selecting the Mortgage Loans from among the outstanding
conventional home mortgage loans in the Seller's portfolio at the Closing Date
as to which the representations and warranties set forth in SECTION 3.03 could
be made;
Section 3.02REPRESENTATIONS AND WARRANTIES OF THE SERVICER.
The Servicer represents, warrants and covenants to the Purchaser
that as of the Funding Date or as of such date specifically provided herein:
(1) ABILITY TO SERVICE. The Servicer is an approved seller/servicer for
FNMA and FHLMC in good standing and is a mortgagee approved by the Secretary of
Housing and Urban Development pursuant to Section 203 of the National Housing
Act, with facilities, procedures and experienced personnel necessary for the
servicing of mortgage loans of the same type as the Mortgage Loans. No event has
occurred that would make the Servicer unable to comply with FNMA or FHLMC
eligibility requirements or that would require notification to either FNMA or
FHLMC;
(2) COLLECTION PRACTICES. The origination, servicing and collection
practices used by the Servicer and any prior originator and servicer with
respect to each Mortgage Loan (including, without limitation, the establishment,
maintenance, and servicing of the Escrow Accounts, if any) have been in all
respects legal, proper and prudent in the mortgage servicing business and in
accordance with the terms of the Mortgage Loan documents an Acceptable Servicing
Procedures. With respect to Escrow Accounts and escrow payments that the
Servicer is entitled to collect, there are no deficiencies for which customary
arrangements for repayment have not been made. All escrow payments have been
collected in all material respects in compliance with applicable law, Acceptable
Servicing Procedures and the provisions of the Mortgage Loan documents. If such
Mortgage Loan is the subject to 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. Any Escrow Account interest required to be paid pursuant to applicable
law has been properly paid and credited.
(3) DUE ORGANIZATION. The Servicer is an entity duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization, and has all licenses necessary to carry on its business now being
conducted and is licensed, qualified and in good standing under the laws of each
state where a Mortgaged Property is located or is otherwise exempt under
applicable law from such qualification or is otherwise not required under
applicable law to effect such qualification; no demand for such qualification
has been made upon the Servicer by any state having jurisdiction and in any
event the Servicer is or will be in compliance with the laws of any such state
to the extent necessary to enforce each Mortgage Loan and service each Mortgage
Loan in accordance with the terms of this Agreement.
(4) DUE AUTHORITY. Servicier has the full power and authority to
execute, deliver and perform, and to enter into and consummate, all transactions
contemplated by this Agreement. The Servicer has duly authorized the execution,
delivery and performance of this Agreement, has duly executed and delivered this
Agreement, and this Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a legal, valid and binding obligation of
the Servicer, enforceable against it in accordance with its terms, subject to
applicable bankruptcy, reorganization, receivership, conservatorship,
insolvency, moratorium and other laws relating to or affecting creditors' rights
generally or the rights of creditors of banks and to the general principles of
equity (whether such enforceability is considered in a proceeding in equity or
at law).
(5) NO CONFLICT. The execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, or the fulfillment of or
compliance with the terms and conditions of this Agreement, will not conflict
with or result in a breach of any of the terms, conditions or provisions of the
Servicer's organizational documents and bylaws or any legal restriction or any
agreement or instrument to which the Servicer is now a party or by which it is
bound, or constitute a default or result in an acceleration under any of the
foregoing, or result in the violation of any law, rule, regulation, order,
judgment or decree to which the Servicer or its property is subject, or impair
the ability of the Purchaser to realize on the Mortgage Loans;
(6) ABILITY TO PERFORM. The Servicer does not believe, nor does it have
any reason or cause to believe, that it cannot perform each and every covenant
contained in this Agreement;
(7) NO MATERIAL DEFAULT. Neither the Servicer nor any of its Affiliates
is in material default under any agreement, contract, instrument or indenture of
any nature whatsoever to which the Servicer or any of its Affiliates is a party
or by which it (or any of its assets) is bound, which default would have a
material adverse effect on the ability of the Servicer to perform under this
Agreement, nor, has any event occurred which, with notice, lapse of time or
both, would constitute a default under any such agreement, contract, instrument
or indenture and have a material adverse effect on the ability of the Servicer
to perform its obligations under this Agreement;
(8) FINANCIAL STATEMENTS. Servicer has delivered to the Purchaser
financial statements as to its fiscal year ended DECEMBER 31, 2000. Except as
has previously been disclosed to the Purchaser in writing: (a) such financial
statements fairly present the results of operations and changes in financial
position for such period and the financial position at the end of such period of
Servicer and its subsidiaries; and (b) such financial statements are true,
correct and complete as of their respective dates and have been prepared in
accordance with generally accepted accounting principles consistently applied
throughout the periods involved, except as set forth in the notes thereto.
(9) NO CHANGE IN BUSINESS. There has been no change in the business,
operations, financial condition, properties or assets of the Servicer since the
date of its financial statements that would have a material adverse effect on
the ability of the Servicer to perform its obligations under this Agreement;
(10) NO LITIGATION PENDING. There is no action, suit, proceeding or
investigation pending or, to the best of the Servicer's knowledge, threatened,
against the Servicer, which, either in any one instance or in the aggregate, if
determined adversely to the Servicer would adversely affect the sale of the
Mortgage Loans to the Purchaser or the execution, delivery or enforceability of
this Agreement or result in any material liability of the Servicer, or draw into
question the validity of this Agreement, or have a material adverse effect on
the financial condition of the Servicer;
(11) NO CONSENT REQUIRED. No consent, approval, authorization or order
of any court or governmental agency or body is required for the execution,
delivery and performance by the Servicer of or compliance by the Servicer with
this Agreement or the consummation of the transactions contemplated by this
Agreement or, if required, such approval has been obtained prior to the Funding
Date;
(12) ORDINARY COURSE OF BUSINESS. The consummation of the transactions
contemplated by this Agreement is in the ordinary course of business of the
Servicer;
(13) NO BROKER. The Servicer has not dealt with any broker or agent or
anyone else who might be entitled to a fee or commission in connection with this
transaction; and
(14) NO UNTRUE INFORMATION. Neither this Agreement nor any statement,
report or other agreement, document or instrument furnished or to be furnished
pursuant to this Agreement contains or will contain any materially untrue
statement of fact or omits or will omit to state a FACT NECESSARY TO MAKE THE
STATEMENTS CONTAINED THEREIN NOT MISLEADING.
Section 3.03 REPRESENTATIONS AND WARRANTIES AS TO INDIVIDUAL MORTGAGE
LOANS .
With respect to each Mortgage Loan, the applicable Seller hereby makes
the following representations and warranties to the Purchaser on which the
Purchaser specifically relies in purchasing such Mortgage Loan. Such
representations and warranties speak as of the Funding Date unless otherwise
indicated, but shall survive any subsequent transfer, assignment or conveyance
of such Mortgage Loans:
(1) MORTGAGE LOAN AS DESCRIBED. Each Mortgage Loan complies with the
terms and conditions set forth herein, and all of the information set forth with
respect thereto on the Mortgage Loan Schedule is true and correct in all
material respects;
(2) COMPLETE MORTGAGE FILES. The instruments and documents specified in
SECTION 2.02 with respect to such Mortgage Loan have been delivered to the
Purchaser or Purchaser's designee in compliance with the requirements of ARTICLE
II. The Seller is in possession of a Mortgage File respecting such Mortgage
Loan, except for such documents as have been previously delivered to the
Purchaser;
(3) OWNER OF RECORD. The Mortgage relating to such Mortgage Loan has
been duly recorded in the appropriate recording office, and the applicable
Seller or Servicer is the owner of record of such Mortgage Loan and the
indebtedness evidenced by the related Mortgage Note;
(4) PAYMENTS CURRENT. All payments required to be made up to and
including the Funding Date for such Mortgage Loan under the terms of the
Mortgage Note have been made, such that such Mortgage Loan is not delinquent 30
days or more on the Funding Date, and has not been so delinquent in the twelve
months prior to the Funding Date;
(5) NO OUTSTANDING CHARGES. There are no delinquent taxes, insurance
premiums, assessments, including assessments payable in future installments, or
other outstanding charges affecting the Mortgaged Property related to such
Mortgage Loan;
(6) ORIGINAL TERMS UNMODIFIED. The terms of the Mortgage Note and the
Mortgage related to such Mortgage Loan have not been impaired, waived, altered
or modified in any material respect, except as specifically set forth in the
related Mortgage Loan Schedule;
(7) NO DEFENSES. The Mortgage Note and the Mortgage related to such
Mortgage Loan are not subject to any right of rescission, set-off or defense,
including the defense of usury, nor will the operation of any of the terms of
such Mortgage Note and such Mortgage, or the exercise of any right thereunder,
render such Mortgage unenforceable, in whole or in part, or subject to any right
of rescission, set-off or defense, including the defense of usury and no such
right of rescission, set-off or defense has been asserted with respect thereto;
(8) HAZARD INSURANCE. (a) All buildings upon the Mortgaged Property
related to such Mortgage Loan are insured by an insurer acceptable to FNMA or
FHLMC against loss by fire, hazards of extended coverage and such other hazards
as are customary in the area where such Mortgaged Property is located, pursuant
to insurance policies conforming to the requirements of either SECTION 5.10 or
SECTION 5.11. All such insurance policies (collectively, the "hazard insurance
policy") contain a standard mortgagee clause naming the originator of such
Mortgage Loan, its successors and assigns, as mortgagee. Such policies are the
valid and binding obligations of the insurer, and all premiums thereon due to
date have been paid. The related Mortgage obligates the Mortgagor thereunder to
maintain all such insurance at such Mortgagor's cost and expense, and on such
Mortgagor's failure to do so, authorizes the holder of such Mortgage to maintain
such insurance at such Mortgagor's cost and expense and to seek reimbursement
therefor from such Mortgagor; or (b) in the case of a condominium or PUD project
that is not covered by an individual policy, the condominium or PUD project is
covered by a "master" or "blanket" policy and there exists and is in the
Servicer's Mortgage File a certificate of insurance showing that the individual
unit that secures the first mortgage or share loan is covered under such policy.
The insurance policy contains a standard mortgagee clause naming the originator
of such Mortgage Loan (and its successors and assigns), as insured mortgagee.
Such policies are the valid and binding obligations of the insurer, and all
premiums thereon have been paid. The insurance policy provides for advance
notice to the Seller or Servicer if the policy is canceled or not renewed, or if
any other change that adversely affects the Seller's interests is made; the
certificate includes the types and amounts of coverage provided, describes any
endorsements that are part of the "master" policy and would be acceptable
pursuant to the FNMA Guide;
(9) COMPLIANCE WITH APPLICABLE LAWS. All requirements of any federal,
state or local law (including usury, truth in lending, real estate settlement
procedures, consumer credit protection, equal credit opportunity or disclosure
laws) applicable to the origination and servicing of such Mortgage Loan have
been complied with in all material respects;
(10) NO SATISFACTION OF MORTGAGE. The Mortgage related to such Mortgage
Loan has not been satisfied, canceled or subordinated, in whole or in part, or
rescinded, and the related Mortgaged Property has not been released from the
lien of such Mortgage, in whole or in part, nor has any instrument been executed
that would effect any such release, cancellation, subordination or rescission;
(11) VALID FIRST LIEN. The Mortgage related to such Mortgage Loan is a
valid, subsisting and enforceable perfected first lien on the related Mortgaged
Property, including all improvements on the related Mortgaged Property, which
Mortgaged Property is free and clear of any encumbrances and liens having
priority over the first lien of the Mortgage subject only to (a) the lien of
current real estate taxes and special assessments not yet due and payable, (b)
covenants, conditions and restrictions, rights of way, easements and other
matters of the public record as of the date of recording of such Mortgage which
are acceptable to mortgage lending institutions generally, are referred to in
the lender's title insurance policy and do not adversely affect the market value
or intended use of the related Mortgaged Property, and (c) 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 such Mortgage or the use, enjoyment, or market value of the related
Mortgaged Property;
(12) VALIDITY OF DOCUMENTS. The Mortgage Note and the Mortgage related
to such Mortgage Loan are genuine and each is the legal, valid and binding
obligation of the maker thereof, enforceable in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights generally and general equitable principles (regardless whether such
enforcement is considered in a proceeding in equity or at law);
(13) VALID EXECUTION OF DOCUMENTS. All parties to the Mortgage Note and
the Mortgage related to such Mortgage Loan had legal capacity to enter into such
Mortgage Loan and to execute and deliver the related Mortgage Note and the
related Mortgage and the related Mortgage Note and the related Mortgage have
been duly and properly executed by such parties;
(14) FULL DISBURSEMENT OF PROCEEDS. Such Mortgage Loan has closed and
the proceeds of such Mortgage Loan have been fully disbursed prior to the
Funding Date; PROVIDED that, with respect to any Mortgage Loan originated within
the previous 120 days, alterations and repairs with respect to the related
Mortgaged Property or any part thereof may have required an escrow of funds in
an amount sufficient to pay for all outstanding work within 120 days of the
origination of such Mortgage Loan, and, if so, such funds are held in escrow by
the Seller, a title company or other escrow agent;
(15) OWNERSHIP. The Mortgage Note and the Mortgage related to such
Mortgage Loan or any interest or participation therein have not been assigned,
pledged or otherwise transferred by the applicable Seller, and the Seller has
good and marketable title thereto, and the Seller is the sole owner thereof and
has full right and authority to transfer and sell such Mortgage Loan, and is
transferring such Mortgage Loan to the Purchaser free and clear of any
encumbrance, equity, lien, pledge, charge, claim or security interest;
(16) DOING BUSINESS. All parties that have had any interest in such
Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise, are (or,
during the period in which they held and disposed of such interest, were) in
compliance with any and all applicable licensing requirements of the laws of the
state wherein the related Mortgaged Property is located. All parties which have
had any interest in the Mortgage Loan, whether as mortgagee, assignee, pledgee
or otherwise, are (or, during the period in which they held and disposed of such
interest, were) (1) in compliance with any and all applicable licensing
requirements of the laws of the state wherein the Mortgaged Property is located,
and (2) organized under the laws of such state, or (3) qualified to do business
in such state, or (4) federal savings and loan associations or national banks
having principal offices in such state, or (5) not doing business in such state;
(17) TITLE INSURANCE. (a) Such Mortgage Loan is covered by an ALTA
lender's title insurance policy or short form title policy acceptable to FNMA
and FHLMC (or, in jurisdictions where ALTA policies are not generally approved
for use, a lender's title insurance policy acceptable to FNMA and FHLMC), issued
by a title insurer acceptable to FNMA and FHLMC and qualified to do business in
the jurisdiction where the related Mortgaged Property is located, insuring
(subject to the exceptions contained in clauses (11(a) and (b) above) the Seller
or Servicier, its successors and assigns as to the first priority lien of the
related Mortgage in the original principal amount of such Mortgage Loan and in
the case of ARM Loans, against any loss by reason of the invalidity or
unenforceability of the lien resulting from the provisions of such Mortgage
providing for adjustment to the applicable Note Rate and Monthly Payment.
Additionally, such lender's title insurance policy affirmatively insures against
encroachments by or upon the related Mortgaged Property or any interest therein
or any other adverse circumstance that either is disclosed or would have been
disclosed by an accurate survey. The Seller or Servicer is the sole insured of
such lender's title insurance policy, and such lender's title insurance policy
is in full force and effect and will be in full force and effect upon the
consummation of the transactions contemplated by this Agreement and will inure
to the benefit of the Purchaser without any further act. No claims have been
made under such lender's title insurance policy, no prior holder of the related
Mortgage (including the Seller) has done, by act or omission, anything that
would impair the coverage of such lender's insurance policy, and, there is no
act, omission, condition, or information that would impair the coverage of such
lender's insurance policy; (b) The mortgage title insurance policy covering each
unit mortgage in a condominium or PUD project related to such Mortgage Loan
meets all requirements of FNMA and FHLMC;
(18) NO DEFAULTS. (a) There is no default, breach, violation or event
of acceleration existing under the Mortgage, the Mortgage Note, or any other
agreements, documents, or instruments related to such Mortgage Loan; (b) there
is no event that, with the lapse of time, the giving of notice, or both, would
constitute such a default, breach, violation or event of acceleration; (c) the
Mortgagor(s) with respect to such Mortgage Loan is (1) not in default under any
other Mortgage Loan or (2) the subject of an Insolvency Proceeding; (d) no event
of acceleration has previously occurred, and no notice of default has been sent,
with respect to such Mortgage Loan; and (e) in no event has the Seller waived
any of its rights or remedies in respect of any default, breach, violation or
event of acceleration under the Mortgage, the Mortgage Note, or any other
agreements, documents, or instruments related to such Mortgage Loan;
(19) NO MECHANICS' LIENS. There are no mechanics' or similar liens,
except such liens as are expressly insured against by a title insurance policy,
or claims that have been filed for work, labor or material (and no rights are
outstanding that under law could give rise to such lien) affecting the related
Mortgaged Property that are or may be liens prior to, or equal or coordinate
with, the lien of the related Mortgage;
(20) LOCATION OF IMPROVEMENTS; NO ENCROACHMENTS. , all improvements
that were considered in determining the Appraised Value of the related Mortgaged
Property lay wholly within the boundaries and building restriction lines of such
Mortgaged Property, and no improvements on adjoining properties encroach upon
such Mortgaged Property except as permitted under the terms of the FNMA Guide
and the FHLMC Selling Guide; no improvement located on or part of any Mortgaged
Property is in violation of any applicable zoning law or regulation, and all
inspections, licenses and certificates required to be made or issued with
respect to all occupied portions of such Mortgaged Property, and with respect to
the use and occupancy of the same, including certificates of occupancy, have
been made or obtained from the appropriate authorities;
(21) ORIGINATION; PAYMENT TERMS. Principal payments on such Mortgage
Loan commenced or will commence no more than 60 days after funds were disbursed
in connection with such Mortgage Loan. If the interest rate on the related
Mortgage Note is adjustable, the adjustment is based on the Index set forth on
the related Mortgage Loan Schedule. The related Mortgage Note is payable on the
first day of each month in arrears, in accordance with the payment terms
described on the related Mortgage Loan Schedule;
(22) DUE ON SALE. Except as noted otherwise on the Mortgage Loan
Schedule, the related Mortgage contains the usual and customary "due-on-sale"
clause or other similar provision for the acceleration of the payment of the
Unpaid Principal Balance of such Mortgage Loan if the related Mortgaged Property
or any interest therein is sold or transferred without the prior consent of the
mortgagee thereunder;
(23) PREPAYMENT PENALTY. Except as noted otherwise on the Mortgage Loan
Schedule, such Mortgage Loan is not subject to any Prepayment Penalty. If a
Mortgage Loan has a prepayment penalty such prepayment penalty is enforceable
and is permitted pursuant to federal, state, and local law;
(24) MORTGAGED PROPERTY UNDAMAGED; NO CONDEMNATION. As of the Funding
Date, the related Mortgaged Property is free of material damage and waste and
there is no proceeding pending for the total or partial condemnation thereof;
(25) CUSTOMARY PROVISIONS. The related Mortgage contains customary and
enforceable provisions that render the rights and remedies of the holder thereof
adequate for the realization against the related Mortgaged Property of the
benefits of the security provided thereby, including, (a) in the case of a
Mortgage designated as a deed of trust, by trustee's sale, and (b) in the case
of a Mortgage, otherwise by judicial foreclosure;
(26) CONFORMANCE WITH UNDERWRITING STANDARDS. Each Mortgage Loan was
underwritten in accordance with underwriting standards of Cendant Mortgage as
set forth in the Cendant Guide;
(27) APPRAISAL. The Mortgage File contains an appraisal of the related
Mortgaged Property on forms and with riders approved by FNMA and FHLMC, signed
prior to the approval of such Mortgage Loan application by an appraiser, duly
appointed by the originator of such Mortgage Loan, whose compensation is not
affected by the approval or disapproval of such Mortgage Loan and who met the
minimum qualifications of FNMA and FHLMC for appraisers and who had no interest,
direct or indirect, in the Mortgaged Property or in any loan made on the
security thereof. Such appraisal was made in accordance with the relevant
provisions o the Financial Institutions Reform, Recovery and Enforcement Act of
1969, as in effect on the date of such Mortgage Loan was originated.;
(28) DEEDS OF TRUST. If the related Mortgage constitutes a deed of
trust, then a trustee, duly qualified under applicable law to serve as such, has
been properly designated and currently so serves and is named in such Mortgage,
and no fees or expenses are or will become payable by the Purchaser to the
trustee under such deed of trust, except in connection with a trustee's sale
after default by the related Mortgagor;
(29) LTV; PRIMARY MORTGAGE INSURANCE POLICY. Except with respect to
Additional Collateral Mortgage Loans (as defined in Exhibit 10 hereto) if such
Mortgage Loan had a Loan-to-Value Ratio of more than 80% at origination, and is
not originated under an additional collateral mortgage loan program, such
Mortgage Loan is and will be subject to a Primary Insurance Policy issued by a
Qualified Mortgage Insurer, which insures the Seller or Servicer, its successors
and assigns and insureds in the amount set forth on the Mortgage Loan Schedule.
All provisions of such Primary 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. Any related Mortgage subject to any such Primary Insurance
Policy ( which is not a "Lender-Paid" Primary Insurance Policy) obligates the
Mortgagor thereunder to maintain such insurance for the time period required by
law and to pay all premiums and charges in connection therewith. As of the date
of origination, the Loan-to-Value Ratio of such Mortgage Loan is as specified in
the applicable Mortgage Loan Schedule. ;
(30) OCCUPANCY. As of the date of origination of such Mortgage Loan,
the related Mortgaged Property is lawfully occupied under applicable law;
(31) SUPERVISION AND EXAMINATION BY A FEDERAL OR STATE AUTHORITY. Each
Mortgage Loan either was (a) closed in the name of the Cendant Mortgage, or (b)
closed in the name of another entity that is either a savings and loan
association, a savings bank, a commercial bank, credit union, insurance company
or an institution which is supervised and examined by a federal or state
authority, or a mortgagee approved by the Secretary of Housing and Urban
Development pursuant to Sections 203 and 211 of the National Housing Act (a "HUD
Approved Mortgagee"), and was so at the time such Mortgage Loan was originated
(Cendant Mortgage or such other entity, the "Originator") or (c) closed in the
name of a loan broker under the circumstances described in the following
sentence. If such Mortgage Loan was originated through a loan broker, such
Mortgage Loan met the Originator's underwriting criteria at the time of
origination and was originated in accordance with the Originator's policies and
procedures and the Originator acquired such Mortgage Loan from the loan broker
contemporaneously with the origination thereof. The Mortgage Loans that the
Trust is selling to Purchaser were originated by or on behalf of Cendant
Mortgage and subsequently assigned to the Trust.
(32) ADJUSTMENTS. All of the terms of the related Mortgage Note
pertaining to interest rate adjustments, payment adjustments and adjustments of
the outstanding principal balance, if any, are enforceable and such adjustments
will not affect the priority of the lien of the related Mortgage; all such
adjustments on such Mortgage Loan have been made properly and in accordance with
the provisions of such Mortgage Loan;
(33) INSOLVENCY PROCEEDINGS; SOLDIERS' AND SAILORS' RELIEF ACT. The
related Mortgagor (1) is not the subject of any Insolvency Proceeding; and (2)
has not notified the Seller of any relief requested by or allowed to such
Mortgagor under the Soldiers' and Sailors' Civil Relief Act of 1940;
(34) FNMA/FHLMC DOCUMENTS. Such Mortgage Loan was closed on standard
FNMA or FHLMC documents or on such documents otherwise acceptable to them.
(35) ACCEPTABLE INVESTMENT. To the best of Seller's knowledge, there is
no circumstance or condition with respect to the related Mortgage File,
Mortgage, Mortgaged Property, Mortgagor or Mortgagor's credit standing,
including but not limited to `limited income documentation programs' whereby the
lending decision is based upon factors other than the Mortgagor's income, that
can reasonably be expected to cause private institutional investors to regard
such Mortgage Loan as an unacceptable investment, cause such Mortgage Loan to
become delinquent, or adversely affect the value or marketability of such
Mortgage Loan;
(36) NO FRAUD. No error, omission, misrepresentation, negligence or
fraud in respect of such Mortgage Loan has taken place on the part of any Person
in connection with the origination and servicing of such Mortgage Loan;
(37) INSURANCE POLICIES. To the best of the Seller's knowledge, no
action, error, omission, misrepresentation, negligence, fraud or similar
occurrence in respect of such Mortgage Loan has taken place on the part of any
Person (including the related Mortgagor, any appraiser, any builder or developer
or any party involved in the origination of such Mortgage Loan or in the
application for any insurance relating to such Mortgage Loan) that might result
in a failure or impairment of full and timely coverage under any insurance
policy required to be obtained for such Mortgage Loan;
(38) DISCLOSURE MATERIALS. The related Mortgagor has received all
disclosure materials required by applicable law with respect to the making of
conventional mortgage loans and has executed a written acknowledgment to such
effect, which acknowledgment is contained in the Servicer's Mortgage File:
(39) NO TRADE-IN OR EXCHANGE. Such Mortgage Loan was not made in
connection with (a) the construction or rehabilitation of a Mortgaged Property
or (b) facilitating the sale or exchange of an REO Property;
(40) NO ENVIRONMENTAL HAZARDS. As of the date of origination of such
Mortgage Loan, the Seller had no actual knowledge of the presence of any
Hazardous Substances, or other environmental hazards, on, in, or that could
affect the related Mortgaged Property;
(41) Sellers agree that is shall not solicit any mortgage (in writing
or otherwise) to refinance any of the Mortgage Loans; provided that mass
advertising or mailings (such as placing advertisements on television on radio,
in magazines, on the Internet, or in newspapers or including messages in billing
statements) that are not exclusively directed towards the Mortgagors shall not
constitute "direct solicitation" and shall not violate this covenant.
(42) The Assignment of Mortgage is in recordable form and is acceptable
for recording under the laws of the jurisdiction in which the Mortgaged Property
is located:
( 43) With respect to each Cooperative Loan, the related Mortgage is a
valid, enforceable and subsisting first security interest on the related
cooperative shares securing the related cooperative note, subject only to (a)
liens of the cooperative for unpaid assessments representing the Mortgagor's pro
rata share of the cooperative's payments for its blanket mortgage, current and
future real property taxes, insurance premiums, maintenance fees and other
assessments to which like collateral is commonly subject and (b) other matters
to which like collateral is commonly subject which do not materially interfere
with the benefits of the security intended to be provided by the Security
Agreement. There are no liens against or security interest in the cooperative
shares relating to each Cooperative Loan (except for unpaid maintenance,
assessments and other amounts owed to the related cooperative which individually
or in the aggregate will not have a material adverse effect on such Cooperative
Loans), which have priority over the Seller's security interest in such
cooperative shares;
(44) With respect to each Cooperative Loan, a search for filings of
financing statements has been made by a Seller competent to make the same, which
Seller is acceptable to ▇▇▇▇▇▇ ▇▇▇ or FHLMC, and qualified to do business in the
jurisdiction where the cooperative unit is located, and such search has not
found anything which would materially and adversely affect the Cooperative Loan;
(45) With respect to each Cooperative Loan, the related cooperative
corporation that owns title to the related cooperative apartment building is a
"cooperative housing corporation" within the meaning of Section 216 of the
Internal Revenue Code, and is in material compliance with applicable federal,
state and local laws which, if not complied with, could have a material adverse
effect on the Mortgaged Property;
(46) With respect to each Cooperative Loan, (a) the terms of the
related proprietary lease or occupancy agreement is longer than the terms of the
Cooperative Loan, (b) there is no provision in such proprietary lease or
occupancy agreement which requires the Mortgagor to offer for sale the
cooperative shares owned by such Mortgagor first to the Cooperative, and (c)
there is no prohibition against pledging the shares of the cooperative
corporation or assigning the cooperative
(47) The Mortgaged Property is located in the state identified in the
Mortgage Loan Schedule and consists of a single, contiguous parcel of real
property with a detached single family residence erected thereon, or a two-to
four-family dwelling, or an individual condominium unit in a condominium
project, or an individual unit in a planned unit development or a townhouse,
provided, however, that any condominium project or planned unit development
shall conform with the applicable Cendant Guide requirements regarding such
dwellings, and no residence or dwelling is a mobile home or a manufactured
dwelling. As of the respective appraisal date for each Mortgaged Property, no
portion of the Mortgaged Property was being used for commercial purposes. If the
Mortgaged Property is a condominium unit or a planned unit development (other
than a de minimus planned unit development) such condominium or planned unit
development project meets Cendant Guide eligibility requirements or is located
in a condominium or planned unit development project which has received Cendant
project approval and the representations and warranties required by Cendant with
respect to such condominium or planned unit development have been made and
remain true and correct in all respects;
(48) The Mortgage Loans have an original term to maturity of not more
than 30 years, with interest payable in arrears on the first day of each month.
As to each Mortgage Loan on each applicable Adjustment Date, the Mortgage
Interest Rate will be adjusted to equal the sum of the Index plus the applicable
Gross Margin, rounded up or down to the nearest multiple of 0.125% indicated by
the Mortgage Note; provided that the Mortgage Interest Rate will not increase or
decrease by more than the applicable Periodic Cap on any Adjustment Date, and
will in no event exceed the maximum Mortgage Interest Rate or be lower than the
minimum Mortgage Interest Rate listed on the Mortgage Loan Schedule for such
Mortgage Loan. Each Mortgage Note requires a monthly payment which is
sufficient, during the period prior to the first adjustment to the Mortgage
Interest Rate, to fully amortize the outstanding principal balance as of the
first day of such period over the then remaining term of such Mortgage Note and
to pay interest at the related Mortgage Interest Rate. As to each Mortgage Loan,
if the related Mortgage Interest Rate changes on an adjustment date, the then
outstanding principal balance will be reamortized over the remaining life of
such Mortgage Loan. No Mortgage Loan contains terms or provisions which would
result in negative amortization. None of the Mortgage Loans contain a balloon
feature, are graduated payment mortgages or shared appreciation mortgages;
(49) With respect to each Mortgage Loan that is a Buydown Mortgage
Loan:
(i) On or before the date of origination of such Mortgage
Loan, the Company and the Mortgagor, or the Company, the Mortgagor and
the seller of the Mortgaged Property or a third party entered into a
Buydown Agreement. The Buydown Agreement provides that the seller of
the Mortgaged Property (or third party) shall deliver to the Company
temporary Buydown Funds in an amount equal to the aggregate
undiscounted amount of payments that, when added to the amount the
Mortgagor on such Mortgage Loan is obligated to pay on each Due Date in
accordance with the terms of the Buydown Agreement, is equal to the
full scheduled Monthly Payment due on such Mortgage Loan. The temporary
Buydown Funds enable the Mortgagor to qualify for the Buydown Mortgage
Loan. The effective interest rate of a Buydown Mortgage Loan if less
than the interest rate set forth in the related Mortgage Note will
increase within the Buydown Period as provided in the related Buydown
Agreement so that the effective interest rate will be equal to the
interest rate as set forth in the related Mortgage Note. The Buydown
Mortgage Loan satisfies the requirements of ▇▇▇▇▇▇ ▇▇▇ guidelines;
(ii) The Mortgage and Mortgage Note reflect the permanent
payment terms rather than the payment terms of the Buydown Agreement.
The Buydown Agreement provides for the payment by the Mortgagor of the
full amount of the Monthly Payment on any Due Date that the Buydown
Funds are available. The Buydown Funds were not used to reduce the
original principal balance of the Mortgage Loan or to increase the
Appraised Value of the Mortgage Property when calculating the
Loan-to-Value Ratios for purposes of the Agreement and, if the Buydown
Funds were provided by the Company and if required under ▇▇▇▇▇▇ Mae and
▇▇▇▇▇▇▇ Mac guidelines, the terms of the Buydown Agreement were
disclosed to the appraiser of the Mortgaged Property;
Section 3.04 REPURCHASE.
(1) It is understood and agreed that the representations and warranties
set forth in SECTIONS 3.01, 3.02 and 3.03 shall survive the sale of the Mortgage
Loans to the Purchaser and shall inure to the benefit of the Purchaser,
notwithstanding any restrictive or qualified endorsement on any Mortgage Note or
Assignment or the examination of any Mortgage File.
(2) Upon discovery by either of the Sellers or the Purchaser of a
breach of any of the representations and warranties contained in SECTIONS 3.01,
3.02 or 3.03 that materially and adversely affects the value of a Mortgage Loan
or the interest of Purchaser therein, the party discovering such breach shall
give prompt written notice to the other.
(3) Unless permitted a greater period of time to cure as set forth in
SECTION 2.04, the applicable Seller shall have a period of 60 days from the
earlier of either discovery by or receipt of written notice from the Purchaser
to the Seller of any breach of any of the representations and warranties
contained in SECTIONS 3.01, 3.02 or 3.03 that materially and adversely affects
the value of a Mortgage Loan or the interest of Purchaser therein(a "Defective
Mortgage Loan"; PROVIDED that "Defective Mortgage Loan" shall also include any
Mortgage Loan treated or designated as such in accordance with SECTION 2.04)
within which to correct or cure such breach. If such breach can ultimately be
cured but is not reasonably expected to be cured within the 60-day period, then
the applicable Seller shall have such additional time, if any, as is reasonably
determined by the Purchaser to cure such breach provided that the Seller has
commenced curing or correcting such breach and is diligently pursuing same. Each
Seller hereby covenants and agrees with respect to each Mortgage Loan conveyed
by it that, if any breach relating thereto cannot be corrected or cured within
the applicable cure period or such additional time, if any, as is reasonably
determined by the Purchaser, then such Seller shall, at the direction of the
Purchaser, repurchase the Defective Mortgage Loan at the applicable Repurchase
Price.
(4) Any repurchase of a Defective Mortgage Loan required hereunder
shall be accomplished by payment of the applicable Repurchase Price within 3
Business Days of expiration of the applicable time period referred to above in
paragraph 3.04(3) by wire transfer of immediately available funds directly to
the Purchaser's Account. It is understood and agreed that the obligations of a
Seller (a) set forth in this SECTION 3.04(4) to cure any breach of such Seller's
representations and warranties contained in SECTION 3.03 or to repurchase the
Defective Mortgage Loan(s) and (b) set forth in SECTION 9.01 to indemnify the
Purchaser in connection with any breach of a Seller's representations and
warranties contained in SECTION 3.03 shall constitute the sole remedies of the
Purchaser respecting a breach of such representations and warranties.
(5) The parties further agree that, in recognition of the Trust's
rights against Cendant Mortgage with respect to the Mortgage Loans acquired by
it from Cendant Mortgage and conveyed to the Purchaser hereunder, the Purchaser
shall have the right to cause Cendant Mortgage to repurchase directly any
Defective Mortgage Loan (other than as a result of a breach by the Trust of
SECTION 3.03 (3) or 3.03(15) hereof, in which case the Purchaser shall have the
right to cause the Trust to repurchase directly the Defective Mortgage Loan)
acquired hereunder by the Purchaser from the Trust.
Section 3.05 CERTAIN COVENANTS OF EACH SELLER AND THE SERVICER. Without
incurring undue effort or any cost except the Seller's overhead or employees'
salaries, each Seller shall take reasonable steps to assist the Purchaser, if
the Purchaser so requests, in securitizing the Mortgage Loans and selling
undivided interests in such Mortgage Loans in a public offering or private
placement or selling participating interests in such Mortgage Loans, which steps
may include, (a) providing any information relating to the Mortgage Loans
reasonably necessary to assist in the preparation of any disclosure documents,
(b) providing information relating to delinquencies and defaults with respect to
the Servicer's servicing portfolio (or such portion thereof as is similar to the
Mortgage Loans), (c) entering into any other servicing, custodial or other
similar agreements, that are consistent with the provisions of this Agreement,
and which contain such provisions as are customary in securitizations rated
"AAA" (including a securitization involving a REMIC) (a "Securitization"), and
(d) providing as of the date of such securitization representations and
warranties as to the Seller and the Mortgage Loans, which are consistent with
the representations and warranties contained in this Agreement, but modified, if
necessary, to reflect changes since the Funding Date and also providing such
reasonable and customary indemnification to the Purchaser or its affiliates. In
connection with such a Securitization, the Purchaser may be required to engage a
master servicer or trustee to determine the allocation of payments to and make
remittances to the certificateholders, at the Purchaser's sole cost and expense.
In the event that a master servicer or trustee to determine the allocation of
payments to and make remittances to the certificateholders is requested by the
Purchaser, the Servicer agrees to service the Mortgage Loans in accordance with
the reasonable and customary requirements of such Securitization, which may
include the Servicer's acting as a subservicer in a master servicing
arrangement. With respect to the then owners of the Mortgage Loans, the Servicer
shall thereafter deal solely with such master servicer or trustee, as the case
may be with respect to such Mortgage Loans which are subject to the
Securitization and shall not be required to deal with any other party with
respect to such Mortgage Loans.The cost of such securitization shall be borne by
the Purchaser, other than the Seller's overhead or employees' salaries.
ARTICLE IV: REPRESENTATIONS AND WARRANTIES OF THE PURCHASER AND
CONDITIONS PREDCEDENT TO FUNDING
Section 4.01 REPRESENTATIONS AND WARRANTIES.
The Purchaser represents, warrants and covenants to the Seller that as
of each Funding Date or as of such date specifically provided herein:
(1) DUE ORGANIZATION. The Purchaser is an entity duly organized,
validly existing and in good standing under the laws of its jurisdiction of
organization, and has all licenses necessary to carry on its business now being
conducted and is licensed, qualified and in good standing under the laws of each
state where a Mortgaged Property is located or is otherwise exempt under
applicable law from such qualification or is otherwise not required under
applicable law to effect such qualification; no demand for such qualification
has been made upon the Purchaser by any state having jurisdiction and in any
event the Purchaser is or will be in compliance with the laws of any such state
to the extent necessary to enforce each Mortgage Loan.
(2) DUE AUTHORITY. The Purchaser had the full power and authority and
legal right to acquire the Mortgage Loans that it acquired. The Purchaser has
the full power and authority to hold 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. The Purchaser has duly authorized
the execution, delivery and performance of this Agreement, has duly executed and
delivered this Agreement, and this Agreement, assuming due authorization,
execution and delivery by the Seller, constitutes a legal, valid and binding
obligation of the Purchaser, enforceable against it in accordance with its
terms, subject to applicable bankruptcy, reorganization, receivership,
conservatorship, insolvency, moratorium and other laws relating to or affecting
creditors' rights generally or the rights of creditors of banks and to the
general principles of equity (whether such enforceability is considered in a
proceeding in equity or at law);
(3) NO CONFLICT. None of the execution and delivery of this Agreement,
the acquisition , of the Mortgage Loans by the Purchaser, 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,
will conflict with or result in a breach of any of the terms, conditions or
provisions of the Purchaser's organizational documents and bylaws or 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 violation of any law, rule,
regulation, order, judgment or decree to which the Purchaser or its property is
subject, or impair the ability of the Purchaser to realize on the Mortgage
Loans, or impair the value of the Mortgage Loans;
(4) ABILITY TO PERFORM. The Purchaser does not believe, nor does it
have any reason or cause to believe, that it cannot perform each and every
covenant contained in this Agreement;
(5) NO MATERIAL DEFAULT. The Purchaser is not in material default under
any agreement, contract, instrument or indenture of any nature whatsoever to
which the Purchaser is a party or by which it (or any of its assets) is bound,
which default would have a material adverse effect on the ability of the
Purchaser to perform under this Agreement, nor, to the of the Purchaser's
knowledge, has any event occurred which, with notice, lapse of time or both)
would constitute a default under any such agreement, contract, instrument or
indenture and have a material adverse effect on the ability of the Purchaser to
perform its obligations under this Agreement;
(6) NO CHANGE IN BUSINESS. There has been no change in the business,
operations, financial condition, properties or assets of the Purchaser since the
date of the Purchaser's financial statements that would have a material adverse
effect on the ability of the Purchaser to perform its obligations under this
Agreement;
(7) LITIGATION PENDING. There is no action, suit, proceeding or
investigation pending or, to the best of the Purchaser's knowledge, threatened,
against the Purchaser, which, either in any one instance or in the aggregate, if
determined adversely to the Purchaser would adversely affect the purchase of the
Mortgage Loans or the execution, delivery or enforceability of this Agreement or
result in any material liability of the Purchaser, or draw into question the
validity of this Agreement, or the Mortgage Loans or have a material adverse
effect on the financial condition of the Purchaser;
(8) BROKER. The Purchaser has not dealt with any broker or agent or
anyone else who might be entitled to a fee or commission in connection with this
transaction.
(9) NO CONSENT REQUIRED. No consent, approval, authorization or order
of any court or governmental agency or body is required for the execution,
delivery and performance by the Purchaser of or compliance by the Purchaser with
this Agreement, the purchase of the Mortgage Loans from the Seller or the
consummation of the transactions contemplated by this Agreement or, if required,
such approval has been obtained prior to the Funding Date;
(10) ORDINARY COURSE OF BUSINESS. The consummation of the transactions
contemplated by this Agreement is in the ordinary course of business of the
Purchaser; and
(11) NON-PETITION AGREEMENT. The Purchaser covenants and agrees that it
shall not, prior to the date which is one year and one day (or if longer, the
applicable preference period then in effect) after the payment in full of all
rated obligations of ▇▇▇▇▇▇'▇ Gate Residential Mortgage Trust, acquiesce,
petition or otherwise, directly or indirectly, invoke or cause ▇▇▇▇▇▇'▇ Gate
Residential Mortgage Trust to invoke the process of any governmental authority
for the purpose of commencing or sustaining a case against ▇▇▇▇▇▇'▇ Gate
Residential Mortgage Trust under any federal or state bankruptcy, insolvency or
similar law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator, or other similar official of ▇▇▇▇▇▇'▇ Gate Residential Mortgage
Trust. This covenant and agreement shall be binding upon the Purchaser and any
assignee or transferee of the Purchaser.
(12) The Purchaser agrees that it shall not solicit any Mortgagors (in
writing or otherwise) to refinance any of the Mortgage Loans; PROVIDED that mass
advertising or mailings (such as placing advertisements on television, on radio,
in magazines or in newspapers or including messages in billing statements) that
are not exclusively directed towards the Mortgagors shall not constitute
solicitation and shall not violate this covenant.
Section 4.02. Conditions Precedent to Closing.
Each purchase of Mortgage Loans hereunder shall be subject to each of the
following conditions:
(a) All of the representations and warranties of Seller under the
Cendant Guide, and of Seller and Purchaser under this Agreement shall be true
and correct as of the Funding Date, and no event shall have occurred which, with
notice or the passage of time, would constitute an Event of Default under this
Agreement or under the Cendant Guide;
(b) Purchaser shall have received, or Purchaser's attorneys shall have
received in escrow, all Closing Documentsas specified herein, in such forms as
are agreed upon and acceptable to Purchaser, duly executed by all signatories
other than Purchaser as required pursuant to the respective terms thereof; and
(c) All other terms and conditions of this Agreement shall have been
complied with.
Subject to the foregoing conditions, Purchaser shall pay to Seller on
each Funding Date the applicable Purchase Price as provided herein.
ARTICLE V: ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 5.01 CENDANT MORTGAGE TO ACT AS SERVICER; SERVICING STANDARDS;
ADDITIONAL DOCUMENTS; CONSENT OF THE PURCHASER.
(1) The Servicer, as independent contract servicer, shall service and
administer the Mortgage Loans and REO Property from and after each Funding Date
in accordance with the terms and provisions of the Mortgage Loans, applicable
law, Acceptable Servicing Procedures and the terms and provisions of this
Agreement for and on behalf of, and in the best interests of, the Purchaser
(without taking into account any relationship the Servicer may have with any
Mortgagor or other Person, the participation, if any, of the Servicer in any
financing provided in connection with the sale of any Mortgaged Property, or the
Servicer's obligation to advance any expenses or incur any costs in the
performance of its duties hereunder) in accordance with a standard that is not
less than the higher of (a) the same care, skill, prudence and diligence with
which it services similar assets held for its own or its Affiliates' account and
(b) the same care, skill, prudence and diligence with which it services similar
assets for third party institutional investors, in each case giving due
consideration to customary and usual standards of practice of prudent
institutional mortgage loan servicers utilized with respect to mortgage loans
comparable to the Mortgage Loans. Subject to the foregoing standards, in
connection with such servicing and administration, the Servicer shall seek to
maximize the timely recovery of principal and interest on the Mortgage Notes;
PROVIDED that nothing contained herein shall be -------- construed as an express
or implied guarantee by the Servicer of the collectibility of payments on the
Mortgage Loans or shall be construed as impairing or adversely affecting any
rights or benefits specifically provided by this Agreement to the Seller,
including with respect to Servicing Fees.
Any Additional Collateral Mortgage Loans (as defined in Exhibit 10
hereto), will be serviced in accordance with the terms of the Additional
Collateral Assignment and Servicing Agreement (attached hereto as Exhibit 10)
and the terms of this Agreement.
(2) To the extent consistent with SECTION 5.01(1) and further subject
to any express limitations set forth in this Agreement, the Servicer (acting
alone or, solely in the circumstances permitted hereunder, acting through a
subservicer) shall have full power and authority to do or cause to be done any
and all things that it may deem necessary or desirable in connection with such
servicing and administration, including the power and authority (a) to execute
and deliver, on behalf of the Purchaser, customary consents or waivers and other
instruments and documents (including estoppel certificates), (b) to consent to
transfers of any Mortgaged Property and assumptions of the Mortgage Notes and
related Mortgages, (c) to submit claims to collect any Insurance Proceeds and
Liquidation Proceeds, (d) to consent to the application of any Insurance
Proceeds or Condemnation Proceeds to the restoration of the applicable Mortgaged
Property or otherwise, (e) to bring an action in a court of law, including an
unlawful detainer action, to enforce rights of the Purchaser with respect to any
Mortgaged Property, (f) to execute and deliver, on behalf of the Purchaser,
documents relating to the management, operation, maintenance, repair, leasing,
marketing and sale of any Mortgaged Property or any REO Property, and (g) to
effectuate foreclosure or other conversion of the ownership of the Mortgaged
Property securing any Mortgage Loan; PROVIDED that the Servicer shall not take
any action not provided for in this Agreement that is materially inconsistent
with or materially prejudices the interest of the Purchaser in any Mortgage Loan
or under this Agreement. If reasonably requested by the Servicer, the Purchaser
shall furnish the Servicer with any powers of attorney and other documents
reasonably necessary or appropriate to enable the Servicer to service and
administer the Mortgage Loans and the REO Properties, including documents
relating to the foreclosure, receivership, management, operation, maintenance,
repair, leasing, marketing and sale (in foreclosure or otherwise) of any
Mortgaged Property or any REO Property. Nothing contained in this Agreement
shall limit the ability of the Servicer to lend money to (whether on a secured
or unsecured basis), and otherwise generally engage in any kind of business or
dealings with, any Mortgagor as though the Servicer were not a party to this
Agreement or to the transactions contemplated hereby. Unless such business or
dealings adversely affect the value of a Mortgage Loan or the interest of
Purchaser in a Mortgage Loan.
(3) Notwithstanding anything to the contrary contained herein:
(a) the Servicer acknowledges that the Purchaser or its designee will
(subject to the provisions of Section 5.13) retain title to, and ownership of,
the Mortgage Loans and the REO Properties and that the Servicer does not hereby
acquire any title to, security interest in, or other rights of any kind in or to
any Mortgage Loan or REO Property or any portion thereof, unless otherwise
requested by the Purchaser in accordance with Section 5.13; 5.13 says we can
take title
(b) the Servicer shall not file any lien or any other encumbrance on,
exercise any right of setoff against, or attach or assert any claim in or on any
Mortgage Loan or REO Property, unless authorized pursuant to a judicial or
administrative proceeding or a court order;
(c) the Servicer shall, in servicing the Mortgage Loans, follow and
comply with the servicing guidelines established by FNMA, PROVIDED that the
Servicer shall specifically notify the Purchaser in writing and obtain the
Purchaser's written consent (such approval will not be unreasonably withheld)
prior to the Servicer taking any of the following actions: (1) modifying,
amending or waiving any of the financial terms of, or making any other material
modifications to, a Mortgage Loan, ; (2) selling any Specially Serviced Mortgage
Loan or REO Property; (3) making, with respect to any Specially Serviced
Mortgage Loan or REO Property, Servicing Advances (irrespective of whether
non-recoverable); PROVIDED that the Servicer shall not be required to so advise
the Purchaser to the extent that each related Servicing Advance as to the
related Mortgaged Property or REO Property is not in excess of $10,000; (4)
forgiving principal or interest on, or permitting to be satisfied at a discount,
any Mortgage Loan; (5) accepting substitute or additional collateral, or
releasing any collateral, for a Mortgage Loan. If the Purchaser has not approved
or rejected in writing any proposed action(s) recommended by the Servicer to be
taken hereunder within 20 Business Days of the date such recommendation is made,
then the Purchaser shall be deemed to have rejected such recommended action(s)
and theServicer shall not take any such action(s);
(d) the Servicer shall notify the Purchaser of any modification, waiver
or amendment of any term of any Mortgage Loan and the date thereof and shall
deliver to the Purchaser, for deposit in the related Mortgage File, an original
counterpart of the agreement relating to such modification, waiver or amendment
promptly following the execution thereof;
(e) the Servicer shall remain primarily liable for the full performance
of its obligations hereunder notwithstanding any appointment by the Servicer of
a subservicer or subservicers hereunder; and
(f) the Purchaser may at any time and from time to time, in its sole
discretion, upon 10 Business Days written notice to the Servicer, terminate the
Servicer's servicing obligations hereunder with respect to (1) any REO Property
or (2) any Mortgage Loan that, in accordance with the Purchaser's internal
credit classification criteria, has been classified as "doubtful" or a "loss."
Upon the effectiveness of any such termination of the Servicer's servicing
obligations with respect to any such REO Property or Mortgage Loan, the Servicer
shall deliver all agreements, documents, and instruments related thereto to the
Purchaser, in accordance with applicable law.
Section 5.02 COLLECTION OF MORTGAGE LOAN PAYMENTS.
Continuously from the date hereof until the principal and interest on
all Mortgage Loans are paid in full, the Servicer will proceed diligently to
collect all payments due under each Mortgage Loan when the same shall become due
and payable and shall, to the extent such procedures shall be consistent with
this Agreement and the terms and provisions of any related Primary Insurance
Policy, follow such collection procedures as it follows with respect to mortgage
loans comparable to the Mortgage Loans, which procedures shall in any event
comply with the servicing standards set forth in SECTION 5.01. Furthermore, the
Servicer shall ascertain and estimate annual ground rents, taxes, assessments,
fire and hazard insurance premiums, mortgage insurance premiums, and all other
charges that, as provided in the Mortgages, will become due and payable to the
end that the installments payable by the Mortgagors will be sufficient to pay
such charges as and when they become due and payable.
Section 5.03 COLLECTION OF MORTGAGE LOAN PAYMENTS.
The Servicer shall, within five (5) calendar days following each Record
Date, deliver to the Purchaser monthly reports (substantially in the form of
EXHIBIT 5.03(A) and EXHIBIT 5.03(B) attached hereto) with respect to all
Specially Serviced Mortgage Loans. In addition, the Servicer shall, within one
(1) Business Day following the occurrence of any foreclosure sale with respect
to any Mortgaged Property, deliver to the Purchaser a notice of foreclosure sale
substantially in the form of EXHIBIT 5.03(C) attached hereto.
Section 5.04 ESTABLISHMENT OF COLLECTION ACCOUNT; DEPOSITS IN
COLLECTION ACCOUNT.
The Servicer shall segregate and hold all funds collected and received
pursuant to each Mortgage Loan separate and apart from any of its own funds and
general assets and shall establish and maintain one or more Collection Accounts,
in the form of time deposit or demand accounts constituting Eligible Accounts,
with any funds in excess of the current FDIC established insurance limits
invested in Permitted Investments. The creation of any Collection Account shall
be evidenced by a certification in the form of EXHIBIT 5.04-1 attached hereto,
in the case of an account established with the Servicer, or a letter agreement
in the form of EXHIBIT 5.04-2 attached hereto, in the case of an account held by
a depository other than the Servicer. In either case, a copy of such
certification or letter agreement shall be furnished to the Purchaser.
The Servicer shall deposit in the Collection Account on a daily basis,
within two Business Days after receipt (or as otherwise required pursuant to
this Agreement in the case of clauses (7), (8) and (9) of this SECTION 5.04) and
retain therein the following payments and collections received or made by it
subsequent to each Funding Date, or received by it prior to the Funding 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 Funding Date:
1) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans;
2) all payments on account of interest on the Mortgage Loans;
3) all Liquidation Proceeds;
4) all REO Disposition Proceeds
5) all Insurance Proceeds, including amounts required to be deposited
pursuant to SECTIONS 5.10 and 5.11, other than proceeds to be held in the Escrow
Account and applied to the restoration or repair of the Mortgaged Properties or
released to the applicable Mortgagors in accordance with the Servicer's normal
servicing procedures and Acceptable Servicing Procedures, the related Mortgages
or applicable law;
6) all Condemnation Proceeds affecting any Mortgaged Property which are
not released to a Mortgagor in accordance with the Servicer's normal servicing
procedures, the related Mortgage or applicable law;
7) any Monthly Advances in accordance with SECTION 6.03;
8) any amounts required to be deposited by the Servicer pursuant to
SECTION 5.11 in connection with the deductible clause in any blanket hazard
insurance policy, such deposit to be made from the Servicer's own funds without
reimbursement therefor;
9) any amounts required to be deposited by the Servicer pursuant to
SECTION 5.16(ii) in connection with any losses on Permitted Investments;
and
10) any amounts required to be deposited in the Collection Account
pursuant to SECTIONS 7.01 or 7.02 or otherwise pursuant to the terms hereof.
11) interest on the amount of any Payoff at the related Remittance Rate
to the end of the month in which prepayment of the related Mortgage Loan occurs.
The foregoing requirements for deposit in the Collection 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 7.01, need not be deposited
by the Servicer in the Collection Account and shall be retained by the Servicer
as additional compensation.
Section 5.05 PERMITTED WITHDRAWALS FROM THE COLLECTION ACCOUNT.
The Servicer may, from time to time in accordance with the provisions
hereof, withdraw amounts from the Collection Account for the following purposes
(without duplication):
1) to reimburse itself for unreimbursed Monthly Advances and Servicing
Advances (other than with respect to REO Properties) that are approved by the
Purchaser as being non-recoverable in accordance with SECTION 6.04; 2) to make
payments to the Purchaser in the amounts, at the times and in the manner
provided for in Section 6.01; 3) to reimburse itself for Monthly Advances, the
Servicer's right to reimburse itself pursuant to this SUBSECTION 3 being limited
to amounts received on the related Mortgage Loan which represent late payments
of principal and/or interest with respect to which any such Monthly Advance was
made; 4) to reimburse itself for unreimbursed Servicing Advances (other than
with respect to REO Properties) and for unreimbursed Monthly Advances, the
Servicer's right to reimburse itself pursuant to this SUBSECTION 4 with respect
to any Mortgage Loan being limited to related Liquidation Proceeds, Condemnation
Proceeds, Insurance Proceeds and such other amounts as may be collected by the
Servicer from the Mortgagor or otherwise relating to the Mortgage Loan, 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 a Seller or
the Servicer is required to repurchase a Mortgage Loan pursuant to SECTIONS
2.04, 3.04 and/or 7.02, the Servicer's right to such reimbursement shall be
subsequent and subordinate to the payment to the Purchaser of the applicable
Repurchase Price and all other amounts required to be paid to the Purchaser with
respect to such Mortgage Loan; 5) to pay to itself, solely out of the interest
portion of the Monthly Payment actually received with respect to a Mortgage Loan
during the period ending on the most recent Determination Date, the Servicing
Fee with respect to such Mortgage Loan; 6) to pay to itself as additional
servicing compensation (a) any interest earned on funds in the Collection
Account (all such interest to be withdrawn monthly not later than each
Remittance Date) and (b) any prepayment penalties or premiums relating to any
Principal Prepayments; PROVIDED that no such amounts shall be payable as
servicing compensation to the extent they relate to a Mortgage Loan with respect
to which a default, breach, violation, or event of acceleration exists or would
exist but for the lapse of time, the giving of notice, or both; 7) to pay to
itself with respect to each Mortgage Loan that has been repurchased pursuant to
SECTIONS 2.04, 3.04 and/or 7.02 all amounts received thereon and not distributed
as of the date on which the related Repurchase Price is determined (except to
the extent that such amounts constitute part of the Repurchase Price to be
remitted to the Purchaser); 8) to remove any amounts deposited into the
Collection Account in error; and 9) to clear and terminate the Collection
Account upon the termination of this Agreement, with any funds contained therein
to be distributed in accordance with the terms of this Agreement. 10) to make
payments to the primary mortgage insurer for Mortgage Loans with lender-paid
Primary Insurance Policy.
The Servicer shall keep and maintain a separate, detailed accounting,
on a Mortgage Loan-by-Mortgage Loan basis, for the purpose of justifying any
withdrawal from the Collection Account pursuant to this SECTION.
Section 5.06 ESTABLISHMENT OF ESCROW ACCOUNTS; DEPOSITS IN ESCROW.
The Servicer shall segregate and hold all funds collected and received
pursuant to each Mortgage Loan which constitute Escrow Payments separate and
apart from any of its own funds and general assets and shall establish and
maintain one or more Escrow Accounts, in the form of time deposit or demand
accounts. The creation of any Escrow Account shall be evidenced by a
certification in the form shown on EXHIBIT 5.06-1 attached hereto, in the case
of an account established with the Servicer, or a letter agreement in the form
shown on EXHIBIT 5.06-2 attached hereto, in the case of an account held by a
depository other than the Servicer, such depository having been consented to by
the Purchaser. In either case, a copy of such certification or letter agreement
shall be furnished to the Purchaser.
The Servicer shall deposit in each Escrow Account on a daily basis, and
retain therein, (i) all Escrow Payments collected on account of the related
Mortgage Loans for the purpose of effecting timely payment of any such items as
required under the terms of this Agreement, and (ii) all Insurance Proceeds
which are to be applied to the restoration or repair of any Mortgaged Property.
The Servicer shall make withdrawals therefrom only to effect such payments as
are required under SECTIONS 5.07 and/or 5.08. The Servicer shall be entitled to
retain any interest paid on funds deposited in the Escrow Account by the
depository institution other than interest on escrowed funds required by law to
be paid to the Mortgagor and, to the extent required by law, the Servicer shall
pay interest on escrowed funds to the Mortgagor notwithstanding that the Escrow
Account is non-interest bearing or that interest paid thereon is insufficient
for such purposes, without any right of reimbursement therefor. The Servicer
shall be responsible for ensuring that the administrator of the Escrow Account
complies with all applicable laws, and shall indemnify and hold the Purchaser
harmless with respect to the administration of such Accounts.
Section 5.07 PERMITTED WITHDRAWALS FROM ESCROW ACCOUNTS.
Withdrawals from any Escrow Account may be made by the Servicer only
(i) to effect timely payments of ground rents, taxes, assessments, water rates,
hazard insurance premiums, Primary Insurance Policy premiums, if applicable, and
comparable items constituting Escrow Payments for the related Mortgage, (ii) to
reimburse the Servicer for any Servicing Advance made by the Servicer with
respect to a related Mortgage Loan but only from amounts received on the related
Mortgage Loan that 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) if permitted by applicable law, for transfer to the Collection
Account in accordance with the terms of this Agreement, (v) for application to
restoration or repair of the Mortgaged Property in accordance with the terms of
the related Mortgage Loan, (vi) to pay to the Servicer, or to the Mortgagor to
the extent required by law, any interest paid on the funds deposited in the
Escrow Account, (vii) to reimburse a Mortgagor in connection with the making of
the Payoff of the related Mortgage Loan or the termination of all or part of the
escrow requirement in connection with the Mortgage Loan, (viii) to remove any
amounts deposited into the Escrow Account in error; or (ix) to clear and
terminate the Escrow Account on the termination of this Agreement.
Section 5.08 PAYMENT OF TAXES, INSURANCE AND OTHER CHARGES; MAINTENANCE
OF PRIMARY INSURANCE POLICIES; COLLECTIONS THEREUNDER.
With respect to each Mortgage Loan, the Servicer shall maintain
accurate records reflecting the status of ground rents, taxes, assessments,
water rates and other charges which are or may become a lien upon the Mortgaged
Property and the status of Primary Insurance Policy premiums and fire and hazard
insurance coverage and shall obtain, from time to time, all bills for the
payment of such charges, including renewal premiums, and shall effect payment
thereof prior to the applicable penalty or termination date 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 and applicable law. If a Mortgage does
not provide for Escrow Payments, then the Servicer shall require that any such
payments be made by the Mortgagor at the time they first become due. The
Servicer assumes full responsibility for the timely payment of all such bills
and shall effect timely payments of all such bills irrespective of the
Mortgagor's faithful performance in the payment of same or the making of the
Escrow Payments and shall make advances from its own funds to effect such
payments but shall be entitled to reimbursement thereof in accordance with the
terms of this Agreement.
The Servicer shall maintain in full force and effect a Primary
Insurance Policy, conforming in all respects to the description set forth in
SECTION 3.03(29), issued by an insurer described in that SECTION, with respect
to each Mortgage Loan for which such coverage is required. Such coverage will be
maintained in accordance with Acceptable Servicing Procedures and until such
time, if any, as such insurance is required to be released in accordance with
the provisions of applicable law including, but not limited to, the Homeowners
Protection Act of 1998. The Servicer shall assure that all premiums due under
any Primary Insurance Policy are paid in a timely manner, but, shall be entitled
to reimbursement pursuant to the terms of this Agreement for premiums paid by
the Servicer on behalf of any Mortgagor who is obligated to pay such premiums
but fails to do so. The Servicer shall not cancel or refuse to renew any Primary
Insurance Policy in effect on the Funding Date that is required to be kept in
force under this Agreement unless a replacement Primary Insurance Policy for
such canceled or nonrenewed policy is obtained from and maintained with a
Qualified Mortgage Insurer . The Servicer shall not take any action which would
result in noncoverage under any applicable Primary 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 7.01, the Servicer shall promptly notify the
insurer under the related Primary 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 Insurance Policy. If such Primary
Insurance Policy is terminated as a result of such assumption or substitution of
liability, then the Servicer shall obtain, and, except as otherwise provided
above, maintain, a replacement Primary Insurance Policy as provided above.
In connection with its activities as servicer, the Servicer agrees to
prepare and present, on behalf of itself and the Purchaser, claims to the
insurer under any Primary Insurance Policy in a timely fashion in accordance
with the terms of such policies and, in this regard, to take such action as
shall be necessary to permit recovery under any Primary Insurance Policy
respecting a defaulted Mortgage Loan. Pursuant to Section 5.04, any amounts
collected by the Servicer under any Primary Insurance Policy shall be deposited
in the Collection Account, subject to withdrawal in accordance with SECTION
5.05.
Section 5.09 TRANSFER OF ACCOUNTS.
The Servicer may transfer the Collection Account or any Escrow Account
to a different depository institution from time to time; PROVIDED that (i) no
such transfer shall be made unless all certifications or letter agreements
required under SECTION 5.04 have been executed and delivered by the parties
thereto; and (ii) concurrently upon any such transfer, the Servicer shall give
written notice thereof to the Purchaser. Notwithstanding anything to the
contrary contained herein, the Collection Account and each Escrow Account shall
at all times constitute Eligible Accounts.
To the extent that at any time the funds in either the Collection
Account or the Escrow Account should exceed the FDIC maximum insurance limit,
(the "Excess Amount"), the Servicer shall put such Excess Amounts into Permitted
Investments, which funds shall be brought back into the Collection Account or
Escrow Account, as the case may be, for distribution to the Purchaser on the
related Remittance Date.
Section 5.10 MAINTENANCE OF HAZARD INSURANCE.
The Servicer shall cause to be maintained for each Mortgage Loan fire
and hazard insurance with extended coverage as is customary in the area where
the Mortgaged Property is located in an amount that is at least equal to the
lesser of (a) the maximum insurable value of the improvements securing such
Mortgage Loan and (b) the greater of (1) the Unpaid Principal Balance of such
Mortgage Loan or (2) an amount such that the proceeds thereof shall be
sufficient to prevent the Mortgagor and/or the loss payee from becoming a
co-insurer.
If any Mortgaged Property is in an area identified by the Federal
Emergency Management Agency as having special flood hazards and such flood
insurance has been made available, then the Servicer will cause to be maintained
a flood insurance policy meeting the requirements of the current guidelines of
the National Flood Insurance Program with a generally acceptable insurance
carrier, in an amount representing coverage not less than the lesser of (a) the
outstanding principal balance of the related Mortgage Loan or (b) the maximum
amount of insurance which is available under the Flood Disaster Protection Act
of 1973, as amended.
The Servicer shall also maintain on each REO Property fire, hazard and
liability insurance, and to the extent required and available under the Flood
Disaster Protection Act of 1973, as amended, flood insurance with extended
coverage in an amount which is at least equal to the lesser of (a) the maximum
insurable value of the improvements which are a part of such property and (b)
the outstanding principal balance of the related Mortgage Loan at the time it
became an REO Property plus accrued interest at the Note Rate and related
Servicing Advances.
All such policies shall be endorsed with standard mortgagee clauses
with loss payable to the Servicer, or upon request to the Purchaser, and shall
provide for at least 30 days prior written notice of any cancellation, reduction
in the amount of, or material change in, coverage to the Servicer. The Servicer
shall not interfere with the Mortgagor's freedom of choice in selecting either
his insurance carrier or agent, PROVIDED that the Servicer shall not accept any
such insurance policies from insurance companies unless such companies (a)
currently reflect (1) a general policyholder's rating of B+ or better and a
financial size category of III or better in Best's Key Rating Guide, or (2) a
general policyholder's rating of "A" or "A-" or better in Best's Key Rating
Guide, and (b) are licensed to do business in the state wherein the related
Mortgaged Property is located. Notwithstanding the foregoing, the Servicer may
accept a policy underwritten by Lloyd's of London or, if it is the only coverage
available, coverage under a state's Fair Access to Insurance Requirement (FAIR)
Plan. If a hazard policy becomes in danger of being terminated, or the insurer
ceases to have the ratings noted above, the Servicer shall notify the Purchaser
and the related Mortgagor, and shall use its best efforts, as permitted by
applicable law, to obtain from another qualified insurer a replacement hazard
insurance policy substantially and materially similar in all respects to the
original policy. In no event, however, shall a Mortgage Loan be without a hazard
insurance policy at any time, subject only to Section 5.11.
Pursuant to SECTION 5.04, 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 the Acceptable Servicing
Procedures, shall be deposited in the Collection Account within one Business Day
after receipt, subject to withdrawal in accordance with SECTION 5.05. Any cost
incurred by the Servicer in maintaining any such insurance shall not, for the
purpose of calculating remittances to the Purchaser, be added to the unpaid
principal balance of the related Mortgage Loan, notwithstanding that the terms
of such Mortgage Loan so permit.
It is understood and agreed that no earthquake or 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 such
applicable laws and regulations as shall at any time be in force and as shall
require such additional insurance.
Section 5.11 MAINTENANCE OF MORTGAGE IMPAIRMENT INSURANCE POLICY .
If the Servicer obtains and maintains a blanket policy issued by an
issuer that has a Best's Key rating of A+:V 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 5.10 and otherwise
complies with all other requirements of SECTION 5.10, it shall conclusively be
deemed to have satisfied its obligations as set forth in SECTION 5.10, it being
understood and agreed that such policy may contain a deductible clause, in which
case the Servicer shall, if there shall not have been maintained on the related
Mortgaged Property or REO Property a policy complying with SECTION 5.10 and
there shall have been one or more losses which would have been covered by such
policy, deposit in the Collection Account the amount not otherwise payable under
the blanket policy because of such deductible clause; PROVIDED that the Servicer
shall not be entitled to obtain reimbursement therefor. In connection with its
activities as servicer of the Mortgage Loans, the Servicer agrees to prepare and
present, on behalf of the Purchaser, claims under any such blanket policy in a
timely fashion in accordance with the terms of such policy. Upon request of the
Purchaser, the Servicer shall cause to be delivered to the Purchaser a certified
true copy of such policy and a statement from the insurer thereunder that such
policy shall in no event be terminated or materially modified without 30 days'
prior written notice to the Purchaser.
Section 5.12 FIDELITY BOND; ERRORS AND OMISSIONS INSURANCE.
The Servicer shall maintain, at its own expense, a blanket fidelity
bond and an errors and omissions insurance policy, with broad coverage with
responsible companies that would meet the requirements of FNMA and FHLMC 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 Loans. The Fidelity Bond and errors and omissions insurance shall be in
the form of the "Mortgage Banker's Blanket Bond" and shall protect and insure
the Servicer against losses, including losses arising by virtue of any Mortgage
Loan not being satisfied in accordance with the procedures set forth in SECTION
7.02 and/or losses resulting from or arising in connection with forgery, theft,
embezzlement, fraud, errors and omissions and negligent acts of or by such
Persons. Such Fidelity Bond 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 5.12 requiring the Fidelity Bond
and errors and omissions insurance shall diminish or relieve 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 FNMA in the FNMA Guide and by FHLMC in the
FHLMC Servicing Guide. The Servicer shall cause to be delivered to the Purchaser
on or before the Funding Date: (i) a certified true copy of the Fidelity Bond
and insurance policy; (ii) a written statement from the surety and the insurer
that such Fidelity Bond or insurance policy shall in no event be terminated or
materially modified without 30 days prior written notice to the Purchaser; and
(iii) written evidence reasonably satisfactory to the Purchaser that such
Fidelity Bond or insurance policy provides that the Purchaser is a beneficiary
or loss payee thereunder.
Section 5.13 MANAGEMENT OF REO PROPERTIES.
If title to any Mortgaged Property is acquired in foreclosure or by deed in lieu
of foreclosure (each, an "REO Property"), the deed or certificate of sale shall
be taken in the name of the Purchaser or the Person (which may be the Servicer
for the benefit of the Purchaser) designated by the Purchaser, or in the event
the Purchaser or such Person 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. The Servicer (acting alone or through a
subservicer), on behalf of the Purchaser, shall, subject to SECTION
5.01(iii)(c), dispose of any REO Property pursuant to SECTION 5.14. Unless an
appraisal prepared by an MAI Appraiser who is Independent in accordance with the
provisions of 12 C.F.R. 225.65 shall have been obtained in connection with the
acquisition of such REO Property, promptly following any acquisition by the
Purchaser (through the Servicer) of an REO Property, the Servicer shall obtain a
narrative appraisal thereof (at the expense of the Purchaser) in order to
determine the fair market value of such REO Property. The Servicer shall
promptly notify the Purchaser of the results of such appraisal. The Servicer
shall also 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 as
required by Acceptable Servicing Practices thereafter, and Servicer shall be
entitled to be reimbursed for expenses in connection therewith in accordance
with this Agreement. The Servicer shall make or cause to be made a written
report of each such inspection. Such reports shall be retained in the Servicer's
Mortgage File and copies thereof shall be forwarded by the Servicer to the
Purchaser. The Servicer shall also furnish to the Purchaser the applicable
reports required under SECTION 8.01.
Notwithstanding anything to the contrary contained herein, if a REMIC
election has been or is to be made with respect to the arrangement under which
the Mortgage Loans and the REO Properties are held, then the Servicer shall
manage, conserve, protect and operate each REO Property in a manner that does
not cause such REO Property to fail to qualify as "foreclosure property" within
the meaning of Section 86OG(a)(8) of the Code or result in the receipt by such
REMIC of any "income from non-permitted assets" within the meaning of Section
86OF(a)(2)(B) or any "net income from foreclosure property" within the meaning
of Section 86OG(c)(2) of the Code (or comparable provisions of any successor or
similar legislation).
The Servicer shall deposit and hold all revenues and funds collected
and received in connection with the operation of each REO Property in the
Collection Account, and the Servicer shall account separately for revenues and
funds received or expended with respect to each REO Property.
The Servicer shall have full power and authority, subject only to the
specific requirements and prohibitions of this Agreement (and, in particular,
SECTION 5.01(iii)(c)), to do any and all things in connection with any REO
Property as are consistent with the servicing standards set forth in SECTION
5.01. In connection therewith, the Servicer shall deposit or cause to be
deposited on a daily basis in the Collection Account all revenues and
collections received or collected by it with respect to each REO Property,
including all proceeds of any REO Disposition. Subject to SECTION 5.15(iv), the
Servicer shall withdraw (without duplication) from the Collection Account, but
solely from the revenues and collections received or collected by it with
respect to a specific REO Property, such funds necessary for the proper
operation, management and maintenance of such REO Property, including the
following:
(1) all insurance premiums due and payable in respect of such REO
Property;
(2) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
(3) all customary and reasonable costs and expenses necessary to
maintain, repair, appraise, evaluate, manage or operate such REO Property
(including the customary and reasonable costs incurred by any "managing agent"
retained by the Servicer in connection with the maintenance, management or
operation of such REO Property);
(4) all reasonable costs and expenses of restoration improvements,
deferred maintenance and tenant improvements; and
(5) all other reasonable costs and expenses, including reasonable
attorneys' fees, that the Servicer may suffer or incur in connection with its
performance of its obligations under this SECTION (other than costs and expenses
that the Servicer is expressly obligated to bear pursuant to this Agreement).
To the extent that amounts on deposit in the Collection Account are insufficient
for the purposes set forth in clauses (1) through (5) above, the Servicer shall,
subject to SECTION 6.04, advance the amount of funds required to cover the
shortfall with respect thereto. The Servicer shall promptly notify the Purchaser
in writing of any failure by the Servicer to make a Servicing Advance of the
type specified in clauses (1) or () above (irrespective of whether such
Servicing Advance is claimed to be non-recoverable by the Servicer pursuant to
SECTION 6.04).
Following the consummation of an REO Disposition, the Servicer shall remit to
the Purchaser, in accordance with SECTION 6.01, any proceeds from such REO
Disposition in the Collection Account following the payment of all expenses and
Servicing Advances relating to the subject REO Property.
Section 5.14 SALE OF SPECIALLY SERVICED MORTGAGE LOANS AND REO
PROPERTIES.
Subject to SECTION 5.01 (and, specifically, SECTION 5.01(3)(c)) and
SECTION 5.15, the Servicer shall offer to sell any REO Property no later than
the time determined by the Servicer to be sufficient to result in the sale of
such REO Property on or prior to the purchase date specified in SECTION 5.15(3).
In accordance with the servicing standards set forth in SECTION 5.01, the
Servicer shall solicit bids and offers from Persons for the purchase of any
Specially Serviced Mortgage Loan or REO Property and, upon receipt thereof,
promptly (but in any event within 3 Business Days) present such bids and offers
to the Purchaser. The Servicer shall not accept any bid or offer for any
Specially Serviced Mortgage Loan or REO Property except in compliance with
SECTION 5.01(3(c). The Purchaser may reject any bid or offer if the Purchaser
determines the rejection of such bid or offer would be in the best interests of
the Purchaser. If the Purchaser rejects any bid or offer, the Servicer shall, if
appropriate, seek an extension of the 2 year period referred to in SECTION 5.15.
Subject to SECTION 5.01 (and, specifically, SECTION 5.01(3)(c)) and
SECTION 5.15, the Servicer shall act on behalf of the Purchaser in negotiating
and taking any other action necessary or appropriate in connection with the sale
of any Specially Serviced Mortgage Loan or REO Property, including the
collection of all amounts payable in connection therewith. The terms of sale of
any Specially Serviced Mortgage Loan or REO Property shall be in the sole
discretion of the Purchaser. Any sale of a Specially Serviced Mortgage Loan or
any REO Disposition shall be without recourse to, or representation or warranty
by, the Purchaser or the Servicer, and, if consummated in accordance with the
terms of this Agreement, then the Servicer shall have no liability to the
Purchaser with respect to the purchase price therefor accepted by the Purchaser.
The proceeds of any sale after deduction of the expenses of such sale incurred
in connection therewith shall be promptly deposited in (a) if such sale is an
REO Disposition, in the Collection Account in accordance with SECTION 5.13 and
(b) in any other circumstance, the Collection Account in accordance with SECTION
5.04.
Section 5.15 REALIZATION UPON SPECIALLY SERVICED MORTGAGE LOANS AND REO
PROPERTIES.
(1) Subject to SECTION 5.01(iii)(c), the Servicer shall foreclose upon
or otherwise comparably convert the ownership of properties securing such of the
Specially Serviced Mortgage Loans as come into and continue in default and as to
which (a) in the reasonable judgment of the Servicer, no satisfactory
arrangements can, in accordance with Acceptable Servicing Procedures, be made
for collection of delinquent payments pursuant to SECTION 5.01 and (b) such
foreclosure or other conversion is otherwise in accordance with SECTION 5.01.
The Servicer shall not be required to expend its own funds in connection with
any foreclosure or towards the restoration, repair, protection or maintenance of
any property unless it shall determine that such expenses will be recoverable to
it as Servicing Advances either through Liquidation Proceeds or through
Insurance Proceeds (in accordance with SECTION 5.05) or from any other source
relating to the Specially Serviced Mortgage Loan(including REO Disposition
Proceeds). The Servicer shall be required to advance funds for all other costs
and expenses incurred by it in any such foreclosure proceedings; PROVIDED that
it shall be entitled to reimbursement thereof from the proceeds of liquidation
of the related Mortgaged Property, as contemplated by SECTION 5.05.
(2) Upon any Mortgaged Property becoming an REO Property, the Servicer
shall promptly notify the Purchaser thereof, specifying the date on which such
Mortgaged Property became an REO Property. Pursuant to its efforts to sell such
REO Property, the Servicer shall, either itself or through an agent selected by
it, protect and conserve such REO Property in accordance with the servicing
standards set forth in SECTION 5.01 and may, subject to SECTION 5.01(3)(c) and
incident to its conservation and protection of the interests of the Purchaser,
rent the same, or any part thereof, for the period to the sale of such REO
Property.
(3) Notwithstanding anything to the contrary contained herein, the
Purchaser shall not, and the Servicer shall not on the Purchaser's behalf,
acquire any real property (or personal property incident to such real property)
except in connection with a default or a default that is imminent on a Mortgage
Loan. If the Purchaser acquires any real property (or personal property incident
to such real property) in connection with such a default, then such property
shall be disposed of by the Servicer in accordance with this SECTION and SECTION
5.14 as soon as possible but in no event later than 2 years after its
acquisition by the Servicer on behalf of the Purchaser, unless the Servicer
obtains, at the expense of the Purchaser, in a timely fashion an extension from
the Internal Revenue Service for an additional specified period.
(4) Any recommendation of the Servicer to foreclose on a defaulted
Mortgage Loan shall be subject to a determination by the Servicer that the
proceeds of such foreclosure would exceed the costs and expenses of bringing
such a proceeding. The income earned from the management of any REO Property,
net of reimbursement to the Servicer for Servicing Advances and fees for
work-out compensation in accordance with the FHLMC Servicing Guide, incurred
with respect to such REO Property under SECTION 5.13, shall be applied to the
payment of the costs and expenses set forth in SECTION 5.13(iv), with any
remaining amounts to be promptly deposited in the Collection Account in
accordance with SECTION 5.13.
(5) If, in the exercise of its servicing obligations with respect to
any Mortgaged Property hereunder, the Servicer deems it is necessary or
advisable to obtain an Environmental Assessment, then the Servicer shall so
obtain an Environmental Assessment, it being understood that all reasonable
costs and expenses incurred by the Servicer in connection with any such
Environmental Assessment (including the cost thereof) shall be deemed to be
Servicing Advances recoverable by the Servicer pursuant to SECTION 5.13(4). Such
Environmental Assessment shall (a) assess whether (1) such Mortgaged Property is
in material violation of applicable Environmental Laws or (2) after consultation
with an environmental expert, taking the actions necessary to comply with
applicable Environmental Laws is reasonably likely to produce a greater recovery
on a net present value basis than not taking such actions, and (b) identify
whether (1) any circumstances are present at such Mortgaged Property relating to
the use, management or disposal of any hazardous materials for which
investigation, testing, monitoring, containment, clean-up or remediation could
be required under any federal, state or local law or regulation, or (2) if such
circumstances exist, after consultation with an environmental expert, taking
such actions is reasonably likely to produce a greater recovery on a present
value basis than not taking such actions. (The conditions described in the
immediately preceding clauses (a) and (b) shall be referred to herein as
"ENVIRONMENTAL CONDITIONS PRECEDENT TO FORECLOSURE.") If any such Environmental
Assessment so warrants, the Servicer is hereby authorized to and shall perform
such additional environmental testing as it deems necessary and prudent to
establish the satisfaction of the foregoing Environmental Conditions Precedent
to Foreclosure or to proceed in accordance with SUBSECTION (6) or (7), as the
case may be, below (such additional testing thereafter being included in the
term "ENVIRONMENTAL ASSESSMENT").
(6) If an Environmental Assessment deemed necessary or advisable by the
Servicer in accordance with SUBSECTION 5 of this SECTION 5.15 establishes that
any of the Environmental Conditions Precedent to Foreclosure is not satisfied
with respect to any Mortgaged Property, but the Servicer in good faith
reasonably believes that it is in the best economic interest of the Purchaser to
proceed against such Mortgaged Property and, if title thereto is acquired, to
take such remedial, corrective or other action with respect to the unsatisfied
condition or conditions as may be prescribed by applicable law to satisfy such
condition or conditions, then the Servicer shall so notify the Purchaser. If,
pursuant to SECTION 5.01(iii)(c), the Purchaser has notified the Servicer in
writing to proceed against such Mortgaged Property, then the Servicer shall so
proceed. The cost of any remedial, corrective or other action contemplated by
the preceding sentence in respect of any of the Environmental Conditions
Precedent to Foreclosure that is not satisfied shall not be an expense of the
Servicer and the Servicer shall not be required to expend or risk its own funds
or otherwise incur any financial liability in connection with any such action.
(7) If an Environmental Assessment deemed necessary or advisable by the
Servicer in accordance with SUBSECTION 5 of this SECTION 5.15 establishes that
any of the Environmental Conditions Precedent to Foreclosure is not satisfied
with respect to any Mortgaged Property and, in accordance with SECTION
5.01(3)(c), the Purchaser elects or is deemed to have elected not to proceed
against such Mortgaged Property, then the Servicer shall, subject to SECTION
5.01(3)(c), take such action as Purchaser and Servicer shall agree upon. .
(8) Prior to the Servicer taking any action with respect to the use,
management or disposal of any hazardous materials on any Mortgaged Property, the
Servicer shall request the approval of the Purchaser in accordance with SECTION
5.01(3(c) and, if such action is approved by the Purchaser, (a) keep the
Purchaser apprised of the progress of such action; and (b) take such action in
compliance with all applicable Environmental Laws.
Section 5.16 INVESTMENT OF FUNDS IN THE COLLECTION ACCOUNT.
The Servicer may direct any depository institution which holds a
Collection Account to invest the funds in the Collection Account in one or more
Permitted Investments bearing interest. All such Permitted Investments shall be
held to maturity, unless payable on demand. In the event amounts on deposit in
the Collection Account are at any time invested in a Permitted Investment
payable on demand, the Servicer shall:
(a) consistent with any notice required to be given thereunder, demand
that payment thereon be made on the last day such Permitted Investment
may otherwise mature hereunder in an amount equal to the lesser of (1)
all amounts then payable thereunder and (2) the amount required to be
withdrawn on such date; and
(b) demand payment of all amounts due thereunder promptly upon
determination by the Servicer or notice from the Purchaser that such
Permitted Investment would not constitute a Permitted Investment in
respect of funds thereafter on deposit in the Collection Account.
All income and gain realized from investment of funds deposited in the
Collection Account shall be for the benefit of the Servicer and shall be subject
to its withdrawal in accordance with SECTION 5.05. The Servicer shall deposit in
the Collection Account the amount of any loss incurred in respect of any
Permitted Investment immediately upon realization of such loss.
ARTICLE V: REPORTS; REMITTANCES; ADVANCES
Section 6.01 REMITTANCES.
(1) On each Remittance Date, the Servicer shall remit to the Purchaser
(a) all amounts credited to the Collection Account as of the close of business
on the preceding Determination Date (including (1) the amount of any Payoff,
together with interest thereon at the related Remittance Rate to the end of the
month in which prepayment of the related Mortgage Loan occurs and (2) all
proceeds of any REO Disposition net of amounts payable to the Servicer pursuant
to SECTION 5.13), net of charges against or withdrawals from the Collection
Account in accordance with Section 5.05, which charges against or withdrawals
from the Collection Account the Servicer shall make solely on such Remittance
Date, plus (b) all Monthly Advances, if any, which the Servicer is obligated to
remit pursuant to SECTION 6.03; PROVIDED that the Servicer shall not be required
to remit, until the next following Remittance Date, Prepaid Monthly Payments and
minus principal prepayments received after the last calendar day of the month
preceding the Remittance Date. any amounts attributable to Monthly Payments
collected but due on a Due Date or Dates subsequent to the preceding
Determination Date.
(2) All remittances made to the Purchaser on each Remittance Date will
be made to the Purchaser or Purchaser's designee by wire transfer of immediately
available funds accordingly to the instructions that will be provided by
Purchaser to the Servicer.
(3) With respect to any remittance received by the Purchaser after the
Business Day on which such payment was due, the Servicer shall pay to the
Purchaser interest on any such late payment at an annual rate equal to the rate
of interest as is publicly announced from time to time by Citibank, N.A., New
York, New York, as its prime lending rate, adjusted as of the date of each
change, plus two percentage points, but in no event greater than the maximum
amount permitted by applicable law. Such interest shall be paid by the Servicer
to the Purchaser on the date such late payment is made and shall cover the
period commencing with the Business Day on which such payment was due and ending
with the Business Day on which such payment is made, both inclusive. Such
interest shall be remitted along with such late payment. Neither the payment by
the Servicer nor the acceptance by the Purchaser of any such interest shall be
deemed an extension of time for payment or a waiver by the Purchaser of any
Event of Default.
Section 6.02 REPORTING.
On or before the 5th calendar day (or, if such day is not a Business
Day, on the immediately succeeding Business Day) of each month during the term
hereof, the Servicer shall deliver to the Purchaser monthly accounting reports
in the form of EXHIBITS 6.02(A) through 6.02(G) attached hereto with respect to
the most recently ended Monthly Period and the 6.02 (b) will be given in
electronic form.. . The Purchaser may assess penalty fees in accordance with The
FNMA Guidefor late or incorrect reporting.
The Servicer shall provide the Purchaser with such information
concerning the Mortgage Loans as is necessary for the Purchaser to prepare its
federal income tax return as the Purchaser may reasonably request from time to
time.
Section 6.03 MONTHLY ADVANCES BY THE SERVICER.
(1) Not later than the close of business on the Business Day
immediately preceding each Remittance Date, the Servicer shall deposit in the
Collection Account an amount equal to all Monthly Payments not previously
advanced by the Servicer (with interest adjusted to the Remittance Rate) that
were due on a Mortgage Loan and delinquent at the close of business on the
related Determination Date. The Servicer may reduce the total amount to be
deposited in the Collection Account as required by the foregoing sentence by the
amount of funds in the Collection Account which represent Prepaid Monthly
Payments.
(2) The Servicer's obligations to make 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 Remittance Date for the remittance of all Liquidation Proceeds and other
payments or recoveries (including Insurance Proceeds or Condemnation Proceeds)
with respect to the Mortgage Loan; PROVIDED that such obligation shall cease if
the Servicer furnishes to the Purchaser an Officers' Certificate evidencing the
determination by the Servicer in accordance with SECTION 6.04 that advances with
respect to such Mortgage Loan are non-recoverable.
Section 6.04 NON-RECOVERABLE ADVANCES.
The determination by the Servicer that any Monthly Advance or Servicing
Advance, if made, would constitute a non-recoverable advance shall be evidenced
by an Officers' Certificate delivered to the Purchaser detailing the reasons for
such determination, with copies of a relevant appraisal by an MAI Appraiser who
is Independent and, if such reports are to be used to determine that any Monthly
Advance or Servicing Advance would be a non-recoverable advance, all engineers'
reports, environmental reports or other information relevant thereto that
support such determination. Such Officers' Certificate shall set forth the
Servicer's considerations in reaching its conclusion that such advance is
non-recoverable, and such conclusion shall be based upon, in addition to the
above-described appraisal and reports, income and expense statements, rent
rolls, occupancy, property inspections, servicer inquiries and other information
of similar nature that support the Servicer's conclusion that such advance is
non-recoverable. The Purchaser shall have a period of 45 days following the
later of (i) the receipt by the Purchaser of such Officers' Certificate and all
documentation supplied by the Servicer relating thereto and (ii) the receipt by
the Purchaser of such other related documentation or information as shall have
been reasonably requested by the Purchaser within 30 days following the delivery
of such Officers' Certificate, to approve, by the exercise by the Purchaser of
its reasonable credit judgment, the subject Monthly Advance or Servicing Advance
as a non-recoverable advance. Only if the Purchaser has so approved any Monthly
Advance or Servicing Advance as non-recoverable shall the Servicer be entitled
to reimbursement for such non-recoverable advance (solely to the extent made) as
provided in SECTION 5.05 or SECTION 5.13, as applicable. The Servicer shall also
deliver to the Purchaser from time to time upon request copies of any appraisals
and other reports or information of the type described in this SECTION 6.04 that
it possesses relative to any Mortgaged Property.
Section 6.05 ITEMIZATION OF SERVICING ADVANCES.
The Servicer shall provide the Purchaser with an itemization of all
Servicing Advances incurred or made by the Servicer hereunder not less than
quarterly and at such other times as the Purchaser may from time to time
reasonably request.
ARTICLE VI: GENERAL SERVICING PROCEDURE
Section 7.01 ENFORCEMENT OF DUE-ON-SALE CLAUSES, ASSUMPTION AGREEMENTS.
(1) The Servicer will, to the extent it has knowledge of any conveyance
or prospective conveyance by any Mortgagor of the Mortgaged Property (whether by
absolute conveyance or by contract of sale, and whether or not the Mortgagor
remains or is to remain liable under the Mortgage Note and/or the Mortgage),
exercise its rights to accelerate the maturity of such Mortgage Loan under any
"due-on-sale" clause applicable thereto; PROVIDED that the Servicer shall not
exercise any such rights if prohibited by law from doing so or if the exercise
of such rights would impair or threaten to impair any recovery under the related
Primary Insurance Policy, if any. (2) If the Servicer is prohibited from
enforcing such "due-on-sale" clause, then the Servicer will enter into an
assumption agreement with the Person to whom the Mortgaged Property has been
conveyed or is proposed to be conveyed, pursuant to which such Person becomes
liable under the Mortgage Note and, to the extent permitted by applicable state
law, the Mortgagor remains liable thereon. (For purposes of this SECTION 7.01,
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.) If any Mortgage Loan is to be assumed, then the
Servicer shall inquire into the creditworthiness of the proposed transferee and
shall use the same Cendant Mortgage underwriting criteria for approving the
credit of the proposed transferee that are used with respect to underwriting
mortgage loans of the same type as the Mortgage Loans. Where an assumption is
allowed, the Servicer, with the prior written consent of the primary mortgage
insurer, if any, and subject to the conditions of SECTION 7.01(iii), shall, and
is hereby authorized to, enter into a substitution of liability agreement with
the Person to whom the Mortgaged Property is proposed to be conveyed pursuant to
which the original mortgagor is released from liability and such Person is
substituted as mortgagor and becomes liable under the related Mortgage Note. Any
such substitution of liability agreement shall be in lieu of an assumption
agreement. In no event shall the Note Rate, the amount of the Monthly Payment or
the final maturity date be changed. The Servicer shall 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
Purchaser's Mortgage File and shall, for all purposes, be considered a part of
such Purchaser's Mortgage File to the same extent as all other documents and
instruments constituting a part thereof. Any fee collected by the Servicer for
entering into an assumption or substitution of liability agreement shall be
retained by the Servicer as additional compensation for servicing the Mortgage
Loans. (3) If the credit of the proposed transferee does not meet such
underwriting criteria, then the Servicer shall, to the extent permitted by the
Mortgage or the Mortgage Note and by applicable law, accelerate the maturity of
the Mortgage Loan.
Section 7.02 SATISFACTION OF MORTGAGES AND RELEASE OF MORTGAGE FILES.
Upon the payment in full of any Mortgage Loan, the Servicer will
immediately notify the Purchaser by a certification of a Servicing Officer,
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 Collection Account pursuant to SECTION 5.04 have been or
will be so deposited and shall request delivery to it of the Purchaser's
Mortgage File held by the Purchaser or its designee. Upon receipt of such
certification and request, the Purchaser shall promptly release the related
mortgage documents to the Servicer and the Servicer shall promptly prepare and
process any satisfaction or release. No expense incurred in connection with any
instrument of satisfaction or deed of reconveyance shall be chargeable to the
Collection Account.
If the Servicer satisfies or releases a Mortgage without having
obtained payment in full of the indebtedness secured by the Mortgage, or should
it otherwise take such action which results in a reduction of the coverage under
the Primary Insurance Policy, if any, then the Servicer shall promptly give
written notice thereof to the Purchaser, and, within 10 Business Days following
written demand therefor from the Purchaser to the Servicer, the Servicer shall
repurchase the related Mortgage Loan by paying to the Purchaser the Repurchase
Price therefor by wire transfer of immediately available funds directly to the
Purchaser's Account.
From time to time and as appropriate for the servicing or foreclosure
of the Mortgage Loan, including for this purpose collection under any Primary
Insurance Policy, the Purchaser or Purchaser's designee shall, upon request of
the Servicer and delivery to the Purchaser of a servicing receipt signed by a
Servicing Officer, release the Mortgage File held by the Purchaser to the
Servicer. Such servicing receipt shall obligate the Servicer to return the
related Mortgage Loan 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
Collection 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 nonjudicially, and
the Servicer has delivered to the Purchaser a certificate of a Servicing Officer
certifying as to the name and address of the Person to which such Mortgage File
or such document was delivered and the purpose or purposes of such delivery.
Upon receipt of a certificate of a Servicing Officer stating that such Mortgage
Loan was liquidated and the Liquidation Proceeds were deposited in the
Collection Account, the servicing receipt shall be released by the Purchaser to
the Servicer.
Section 7.03 SERVICING COMPENSATION.
As compensation for its services hereunder, the Servicer shall be
entitled to retain from interest payments actually collected on the Mortgage
Loans the amounts provided for as the Servicing Fee. The Servicing Fee in
respect of a Mortgage Loan for a particular month shall become payable only upon
the receipt by the Servicer from the Mortgagor of the full Monthly Payment in
respect of such Mortgage Loan. Additional servicing compensation in the form of
assumption fees, as provided in SECTION 7.01, late payment charges and other
servicer compensation for modifications, short sales, and other services not to
exceed those fees described in the FHLMC Servicing Guide shall be retained by
the Servicer to the extent not required to be deposited in the Collection
Account. The Servicer shall be required to pay all expenses incurred by it in
connection with its servicing activities hereunder and shall not be entitled to
reimbursement therefor except as specifically provided for herein.
Section 7.04 ANNUAL STATEMENT AS TO COMPLIANCE.
The Servicer will deliver to the Purchaser on or before March 31 of
each year, beginning with March 31, 2002, an Officers' Certificate stating that
(i) 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, (ii) the Servicer has fully complied with the provisions of this
Agreement and (iii) to the best of such officers' knowledge, based on such
review, the Servicer has fulfilled all of its obligations under this Agreement
throughout such year, or, if there has been a default in the fulfillment of any
such obligation, specifying each such default known to such officers and the
nature and status thereof.
Section 7.05 ANNUAL INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS' SERVICING
REPORT.
On or before March 31 of each year beginning March 31, 2002, the
Servicer at its expense shall cause a firm of independent public accountants
which is a member of the American Institute of Certified Public Accountants to
furnish a statement to the Purchaser to the effect that such firm has examined
certain documents and records relating to the servicing of the mortgage loans
generally that include a sampling of the Mortgage Loans, the provisions of
ARTICLE VI have been complied with and, on the basis of such an examination
conducted substantially in accordance with the Uniform Single Attestation
Program for Mortgage Bankers, such servicing has been conducted in compliance
with this Agreement, 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.
Section 7.06 PURCHASER'S RIGHT TO EXAMINE SERVICER RECORDS.
The Purchaser shall have the right to examine and audit, during
business hours or at such other times as are reasonable under applicable
circumstances, upon five days advance notice any and all of (i) the credit and
other loan files relating to the Mortgage Loans or the Mortgagors, (ii) any and
all books, records, documentation or other information of the Servicer (whether
held by the Servicer or by another) relating to the servicing of the Mortgage
Loans and (iii) any and all books, records, documentation or other information
of the Servicer (whether held by the Servicer or by another) that are relevant
to the performance or observance by the Servicer of the terms, covenants or
conditions of this Agreement. The Servicer shall be obligated to make the
foregoing information available to the Purchaser at the site where such
information is stored; PROVIDED that the Purchaser shall be required to pay all
reasonable costs and expenses incurred by the Servicer in making such
information available.
ARTICLE VIII REPORTS TO BE PREPARED BY THE SERVICER
Section 8.01 THE SERVICER'S REPORTING REQUIREMENTS.
ELECTRONIC FORMAT. If requested by the Purchaser or its designee, the
Servicer shall supply any and all information regarding the Mortgage Loans and
the REO Properties, including all reports required to be delivered pursuant to
SECTION 5.03, SECTION 6.02 and this SECTION 8.01, to the Purchaser in electronic
format reasonably acceptable to Purchaser.
REO PROPERTY REPORTS. On or before the 3rd Business Day preceding each
Determination Date, the Servicer shall deliver to the Purchaser a report, in
form acceptable to Purchaser, describing in reasonable detail the Servicer's
efforts in connection with the sale of each REO Property and setting forth all
operating income (including rental income) and operating expenses pertaining to
each REO Property for the previous month, together with rent rolls, operating
statements, and such other information as is referenced on such report
pertaining to the REO Property.
ADDITIONAL REPORTS; FURTHER ASSURANCES. On or before the 3rd Business
Day preceding each Determination Date, the Servicer shall deliver to the
Purchaser (i) a report, acceptable to the Purchaser, describing in reasonable
detail all Mortgage Loans that are 90 days or more delinquent and the Servicer's
activities in connection with such delinquencies and (ii) a report
(substantially in the form of EXHIBIT 8.01 attached hereto) with respect to
delinquent Mortgage Loans. Utilizing resources reasonably available to the
Servicer without incurring any cost except the Servicer's overhead and
employees' salaries, the Servicer shall 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 reasonably
requested by the Purchaser with respect to Mortgage Loans or REO Properties
(provided the Purchaser shall have given the Servicer reasonable notice and
opportunity to prepare such reports, information or documentation), including
any reports, information or documentation reasonably required to comply with any
regulations of any governmental agency or body having jurisdiction over 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. If any of such reports are not customarily prepared by the
Servicer or require that the Servicer program data processing systems to create
the reports, then the Purchaser shall pay to the Servicer a fee mutually agreed
to by the Purchaser and the Servicer taking into account the Servicer's actual
time and cost in preparing such reports. The Servicer agrees to execute and
deliver all such instruments and take all such action as the Purchaser, from
time to time, may reasonably request in order to effectuate the purposes and to
carry out the terms of this Agreement.
Section 8.02 FINANCIAL STATEMENTS.
The Servicer understands that, in connection with marketing the
Mortgage Loans, the Purchaser may make available to any prospective purchaser of
the Mortgage Loans the Servicer's audited financial statements for its fiscal
year 1999 and its audited financial statements for fiscal year 2000, together
with any additional statements provided pursuant to the next sentence. During
the term hereof, the Servicer will deliver to the Purchaser audited financial
statements for each of its fiscal years following the Funding Date and all other
financial statements prepared following the Funding Date to the extent any such
statements are available upon request to the public at large.
The Servicer also agrees to make available upon reasonable notice and
during normal business hours to any prospective purchasers of the Mortgage Loans
a knowledgeable financial or accounting officer for the purpose of answering
questions respecting recent developments affecting the Servicer or the financial
statements of the Servicer which may affect, in any material respect, the
Servicer's ability to comply with its obligations under this Agreement, and to
permit any prospective purchasers upon reasonable notice and during normal
business hours to inspect the Servicer's servicing facilities for the purpose of
satisfying such prospective purchasers that the Servicer has the ability to
service the Mortgage Loans in accordance with this Agreement.
ARTICLEIX: THE SELLERS
Section 9.01 INDEMNIFICATION; THIRD PARTY CLAIMS.
Each Seller shall indemnify and hold harmless the Purchaser, its
directors, officers, agents, employees, and assignees (each, an "Indemnified
Party") from and against any costs, damages, expenses (including reasonable
attorneys' fees and costs, irrespective of whether or not incurred in connection
with the defense of any actual or threatened action, proceeding, or claim),
fines, forfeitures, injuries, liabilities or losses ("Losses") suffered or
sustained in any way by any such Person, no matter how or when arising
(including Losses incurred or sustained in connection with any judgment, award,
or settlement), in connection with or relating to (i) a breach by such Seller of
any of its representations and warranties contained in ARTICLE III or (ii) a
breach by such Seller of any of its covenants and other obligations contained
herein including any failure to service the Mortgage Loans in compliance with
the terms hereof. The applicable Seller shall immediately (i) notify the
Purchaser if a claim is made by a third party with respect to this Agreement,
any Mortgage Loan and/or any REO Property (ii) assume the defense of any such
claim and pay all expenses in connection therewith, including attorneys' fees,
and (iii) promptly pay, discharge and satisfy any judgment, award, or decree
that may be entered against it or the Indemnified Party in respect of such
claim. Nothing contained herein shall prohibit the Indemnified Party, at its
expense, from retaining its own counsel to assist in any such proceedings or to
observe such proceedings; PROVIDED that neither Seller shall be obligated to pay
or comply with any settlement to which it has not consented. All amounts
required to be paid or reimbursed by a Seller hereunder shall be paid or
reimbursed as and when incurred by the Indemnified Party upon demand therefor by
such Indemnified Party.
Section 9.02 MERGER OR CONSOLIDATION OF THE SELLER.
Each Seller will keep in full effect its existence, rights and
franchises as a corporation or a Delaware business trust, as applicable, under
the laws of the state of its organization and will obtain and preserve its
qualification to do business as a foreign entity in each jurisdiction in which
such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement or any of the Mortgage Loans and to perform its
duties under this Agreement.
Any Person into which a Seller may be merged or consolidated, or any
corporation resulting from any merger, conversion or consolidation (including by
means of the sale of all or substantially all of such Seller's assets to such
Person) to which the Seller shall be a party, or any Person succeeding to the
business of the Seller, shall be the successor of the Seller hereunder, without
the execution or filing of any paper or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding; PROVIDED
that, unless otherwise consented to by the Purchaser, the successor or surviving
Person, in the case of a merger or consolidation, etc. of the Servicer, shall be
an institution qualified to service mortgage loans on behalf of FNMA and FHLMC
in accordance with the requirements of Section 3.02(1), shall not cause a rating
on any security backed by a Mortgage Loan to be downgraded and shall satisfy the
requirements of Section 12.01 with respect to the qualifications of a successor
to such Seller.
Section 9.03 LIMITATION ON LIABILITY OF THE SELLERS AND OTHERS.
Neither the Sellers nor any of the officers, employees or agents of the
Sellers 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 pursuant to the express written instructions of the Purchaser, or
for errors in judgment made in good faith; PROVIDED that this provision shall
not protect the Sellers or any such Person against any breach of warranties or
representations made herein, or failure to perform its obligations in compliance
with any standard of care set forth in this Agreement, or any liability which
would otherwise be imposed by reasons of willful misfeasance, bad faith,
negligence or any breach in the performance of the obligations and duties
hereunder. The Sellers and any officer, employee or agent of the Sellers may
rely in good faith on any document of any kind reasonably believed by the
Sellers or such Person to be genuine and PRIMA FACIE properly executed and
submitted by any Person respecting any matters arising hereunder.
The Sellers shall not be under any obligation to appear in, prosecute
or defend any legal action that is not incidental to their duties hereunder and
which in their opinion may involve them in any expense or liability; PROVIDED
that the Sellers may with the written consent of Purchaser undertake any such
action that it may deem necessary or desirable in respect of this Agreement and
the rights and duties of the parties hereto. In such event, the legal expenses
and costs of such action and any liability resulting therefrom shall be
expenses, costs and liabilities for which the Sellers shall notify the Purchaser
and the Purchaser shall either (1) authorize the removal of the expenses by the
Seller from the Collection Account or (2) Remit the requested expenses to the
Seller .
Section 9.04 SERVICER NOT TO RESIGN.
With respect to the retention by Cendant Mortgage of the servicing of
the Mortgage Loans and the REO Properties hereunder, Cendant Mortgage
acknowledges that the Purchaser has acted in reliance upon Cendant Mortgage's
Independent status, the adequacy of its servicing facilities, plan, personnel,
records and procedures, its integrity, reputation and financial standing and the
continuance thereof. Consequently, Cendant Mortgage shall not assign the
servicing rights retained by it hereunder to any third party nor resign from the
obligations and duties hereby imposed on it except (i) with the approval of the
Purchaser, such approval not to be unreasonably withheld, or (ii) 30 Business
Days following any determination that its duties hereunder are no longer
permissible under applicable law and such incapacity cannot be cured by Cendant
Mortgage. Any determination permitting the transfer of the servicing rights or
the resignation of Cendant Mortgage under SUBSECTION (ii) hereof 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.
ARTICLEX: DEFAULT
Section 10.01 EVENTS OF DEFAULT.
In case one or more of the following events shall occur and be
continuing:
(1) any failure by the Servicer to remit to the Purchaser any payment
required to be made under the terms of this Agreement which continues unremedied
for a period of 3 Business Days unless such failure to remit is due to a cause
beyond the Servicer's control, including an act of God, act of civil, military
or governmental authority, fire, epidemic, flood, blizzard, earthquake, riot,
war, or sabotage, PROVIDED that the Servicer gives the Purchaser notice of such
cause promptly and uses commercially reasonable efforts to correct such failure
to remit and does so remit within 2 Business Days following the end of the
duration of the cause of such failure to remit; or
(2) any failure on the part of a Seller/Servicer duly to observe or
perform in any material respect any of the covenants or agreements on the part
of such Seller/Servicer set forth in this Agreement which continues unremedied
for a period of 45 days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the applicable
Seller/Servicer by the Purchaser; PROVIDED that such 45-day period shall not
begin with respect to any failure to cure or repurchase in accordance with
SECTIONS 2.04 and/or 3.04 until the expiration of the cure periods provided for
in SECTIONs 2.04 and/or 3.04, as applicable;
(3) any filing of an Insolvency Proceeding by or on behalf of a
Seller/Servicer, any consent by or on behalf of a Seller/Servicer to the filing
of an Insolvency Proceeding against a Seller/Servicer, or any admission by or on
behalf of a Seller/Servicer of its inability to pay its debts generally as the
same become due;
(4) any filing of an Insolvency Proceeding against a Seller/Servicer
that remains undismissed or unstayed for a period of 60 days after the filing
thereof;
(5) any issuance of any attachment or execution against, or any
appointment of a conservator, receiver or liquidator with respect to, all or
substantially all of the assets of a Seller/Servicer;
(6) any failure or inability of Cendant Mortgage to be eligible to
service Mortgage Loans for FNMA or FHLMC;
(7) any sale, transfer, assignment, or other disposition by a
Seller/Servicer of all or substantially all of its property or assets to a
Person who does not meet the qualifications enumerated or incorporated by
reference into SECTION 9.02, any assignment by a Seller/Servicer of this
Agreement or any of a Seller's/Servicer's rights or obligations hereunder except
in accordance with SECTION 9.04, or any action taken or omitted to be taken by a
Seller/Servicer in contemplation or in furtherance of any of the foregoing,
without the consent of the Purchaser;
then, and in each and every such case, so long as an Event of Default shall not
have been remedied, the Purchaser, by notice in writing to the Sellers may, in
addition to whatever rights the Purchaser may have at law or in equity to
damages, including injunctive relief and specific performance, terminate all the
rights and obligations of the Sellers and The Servicer under this Agreement and
in and to the Mortgage Loans(including the Servicing rights thereon) and the
proceeds thereof subject to SECTION 12.01, without the Purchaser's incurring any
penalty or fee of any kind whatsoever in connection therewith; PROVIDED that,
upon the occurrence of an Event of Default under SUBSECTION (3), (4) or (5) of
this SECTION 10.01, this Agreement and all authority and power of the Sellers
hereunder (whether with respect to the Mortgage Loans, the REO Properties or
otherwise) shall automatically cease. On or after the receipt by the Sellers of
such written notice, all authority and power of the Sellers under this Agreement
(whether with respect to the Mortgage Loans or otherwise) shall cease.
ARTICLEXI: TERMINATION
Section 11.01 TERM AND TERMINATION.
(1) The servicing obligations of the Servicer under this Agreement may
be terminated as provided in Section 10.01 hereof.
(2) In any case other than as provided under SUBSECTION (1) hereof, the
respective obligations and responsibilities of the Sellers and Servicer
hereunder shall terminate upon: (a) the later of the final payment or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan or
the disposition of all REO Property and the remittance of all funds due
hereunder; or (b) the mutual written consent of the Sellers and the Purchaser.
(3) Upon any termination of this Agreement or the servicing obligations
of the Servicer hereunder, then the Servicer shall prepare, execute and deliver
all agreements, documents and instruments, including all Mortgage Files, and do
or accomplish all other acts or things necessary or appropriate to effect such
termination, all at the Servicer's sole expense. In any such event, the Servicer
agrees to cooperate with the Purchaser in effecting the termination of the
Servicer's servicing responsibilities hereunder, including the transfer to the
Purchaser or its designee for administration by it of all cash amounts which
shall at the time be contained in, or credited by the Servicer to, the
Collection Account and/or the Escrow Account or thereafter received with respect
to any Mortgage Loan or REO Property.
SECTION 11.02 TERMINATION WITHOUT CAUSE In the event that any Mortgage
Loans become delinquent in their payment obligations, and the Purchaser has no
disposition option other than to sell such non-performing Mortgage Loans to a
third party purchaser on a servicing released basis, then Seller agrees to act
in the following manner: (i) either allow the servicing function on such
non-performing Mortgage Loans to be released to the Purchaser's third party
purchaser; or (ii) purchase the non-performing Mortgage Loans from the Purchaser
under the same price and terms which the Purchaser's third party purchaser would
have purchased such non-performing Mortgage Loans.
Section 11.03 SURVIVAL.
Notwithstanding anything to the contrary contained herein, the
representations and warranties of the parties contained herein and in any
certificate or other instrument delivered pursuant hereto, as well as the other
covenants hereof (including those set forth in SECTION 9.01) , shall survive the
termination of this Agreement and shall inure to the benefit of the parties,
their successors and assigns. Sellers further agree that the representations,
warranties and covenants made by Sellers herein and in any certificate or other
instrument delivered pursuant hereto shall be deemed to be relied upon by
Purchaser notwithstanding any investigation heretofore made by Purchaser or on
Purchaser's behalf.
ARTICLE VIIII: GENERAL PROVISIONS
Section 12.01 SUCCESSOR TO THE SERVICER.
Upon the termination of the Servicer's servicing responsibilities and
duties under this Agreement pursuant to Section 9.04, 10.01, or 11.01, the
Purchaser shall (i) succeed to and assume all of the Servicer's
responsibilities, rights, duties and obligations under this Agreement or (ii)
appoint a successor servicer which shall succeed to all rights and assume all of
the responsibilities, duties and liabilities of the Servicer under this
Agreement prior to the termination of the Servicer's responsibilities, duties
and liabilities under this Agreement. If the Servicer's duties, responsibilities
and liabilities under this Agreement should be terminated pursuant to the
aforementioned sections, then the Servicer shall continue to discharge such
duties and responsibilities during the period from the date it acquires
knowledge of such termination until the effective date thereof (if applicable)
all on the terms and conditions contained herein and shall take no action
whatsoever that might impair or prejudice the rights or financial condition of
its successor. The termination of the Servicer's servicing responsibilities
pursuant to any of the aforementioned Sections shall not, among other things,
relieve the Servicer of its obligations pursuant to Section 2.04 and/or 7.02,
the representations and warranties or other obligations set forth in Sections
2.04, 3.01, 3.02 and 3.03 and the remedies available to the Purchaser under the
various provisions of this Agreement. In addition, such termination shall not
affect any claims that the Purchaser may have against the Servicer arising prior
to any such termination.
Section 12.02 GOVERNING LAW.
This Agreement is to be governed by, and construed in accordance with
the internal laws of the State of New York without giving effect to principals
of conflicts of laws. The obligations, rights, and remedies of the parties
hereunder shall be determined in accordance with such laws.
Section 12.03 NOTICES.
Any notices or other communications permitted or required hereunder
shall be in writing and shall be deemed conclusively to have been given if
personally delivered, sent by courier with delivery against signature therefor,
mailed by registered mail, postage prepaid, and return receipt requested or
transmitted by telex, telegraph or telecopier and confirmed by a similar writing
mailed or sent by courier as provided above, to (i) in the case of the
Purchaser, EMC Mortgage Corporation; MacArthur Ridge II, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇ ▇▇▇▇▇ with copy to Bear ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention Legal Department, or such other
address as may hereafter be furnished to the Seller in writing by the Purchaser,
(ii) in the case of the Cendant Mortgage, Cendant Mortgage Corporation, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇, ▇▇. ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President,
Secondary Marketing, and (iii) in the case of the Trust, c/o Cendant Mortgage
Corporation, as Administrator, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇. ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President, Secondary Marketing ,or such other address as
may hereafter be furnished to the Purchaser in writing by the applicable Seller.
Section 12.04 SEVERABILITY OF PROVISIONS.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, the invalidity
of any such covenant, agreement, provision or term of this Agreement shall in no
way affect the validity or enforceability of the other provisions of this
Agreement.
Section 12.05 SCHEDULES AND EXHIBITS.
The schedules and exhibits that are attached to this Agreement are
hereby incorporated herein and made a part hereof by this reference. Section
12.06 GENERAL INTERPRETIVE PRINCIPLES.
For purposes of this Agreement, except as otherwise expressly provided
or unless the context otherwise requires: (1) 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;
(2) any reference in this Agreement to this Agreement or any other
agreement, document, or instrument shall be a reference to this Agreement or any
other such agreement, document, or instrument as the same has been amended,
modified, or supplemented in accordance with the terms hereof and thereof (as
applicable);
(3) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles;
(4) 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, unless the context shall otherwise require;
(5) 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;
(6) a reference to a "day" shall be a reference to a calendar day;
(7) the words "herein," "hereof," "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
provision; and
(8) the terms "include" and "including" shall mean without limitation
by reason of enumeration.
Section 12.07 WAIVERS AND AMENDMENTS, NONCONTRACTUAL REMEDIES;
PRESERVATION OF REMEDIES.
This Agreement may be amended, superseded, canceled, renewed or extended and the
terms hereof may be waived, only by a written instrument signed by authorized
representatives of the parties or, in the case of a waiver, by an authorized
representative of the party waiving compliance. No such written instrument shall
be effective unless it expressly recites that it is intended to amend,
supersede, cancel, renew or extend this Agreement or to waive compliance with
one or more of the terms hereof, as the case may be. No delay on the part of any
party in exercising any right, power or privilege hereunder shall operate as a
waiver thereof, nor shall any waiver on the part of any party of any such right,
power or privilege, or any single or partial exercise of any such right, power
or privilege, preclude any further exercise thereof or the exercise of any other
such right, power or privilege. The rights and remedies herein provided are
cumulative and are not exclusive of any rights or remedies that any party may
otherwise have at law or in equity.
Section 12.08 CAPTIONS.
All section titles or captions contained in this Agreement or in any
schedule or exhibit annexed hereto or referred to herein, and the table of
contents to this Agreement, are for convenience only, shall not be deemed a part
of this Agreement and shall not affect the meaning or interpretation of this
Agreement.
Section 12.09 COUNTERPARTS; EFFECTIVENESS; ASSIGNS.
This Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an original,
but all such counterparts shall together constitute one and the same instrument.
This Agreement shall become effective as of the date first set forth herein upon
the due execution and delivery of this Agreement by each of the parties hereto.
None of the Sellers shall assign its rights and obligations under this Agreement
without the prior written consent of the Purchaser, which consent shall not be
unreasonably withheld.
Section 12.10 ENTIRE AGREEMENT; AMENDMENT.
This Agreement (including the schedules and exhibits annexed hereto or
referred to herein), together with the Cendant Guide, contains the entire
agreement between the parties hereto with respect to the transactions
contemplated hereby and supersedes all prior agreements, written or oral, with
respect thereto. No amendment, modification or alteration of the terms or
provisions of this Agreement shall be binding unless the same shall be in
writing and duly executed by the authorized representatives of the parties
hereto.
Section 12.11 FURTHER ASSURANCES.
Each party hereto shall take such additional action as may be
reasonably necessary to effectuate this Agreement and the transactions
contemplated hereby. The Sellers will promptly and duly execute and deliver to
the Purchaser such documents and assurances and take such further action as the
Purchaser may from time to time reasonably request in order to carry out more
effectively the intent and purpose of this Agreement and to establish and
protect the rights and remedies created or intended to be created in favor of
the Purchaser.
IN WITNESS WHEREOF, the Sellers and the Purchaser have caused their
names to be signed hereto by their respective officers as of the date first
written above.
EMC MORTGAGE CORPORATION
By:
---------------------------------------------------
Name:
Title:
CENDANT MORTGAGE CORPORATION
By:
---------------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇'▇ GATE RESIDENTIAL MORTGAGE TRUST (FORMERLY KNOWN AS
CENDANT RESIDENTIAL MORTGAGE TRUST)
BY: CENDANT MORTGAGE CORPORATION, AS ADMINISTRATOR
By:
----------------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
4
Schedule B-1
On or prior to the Funding Date, the Seller shall deliver to the
Purchaser, or its designee, each of the following documents for each Mortgage
Loan:(i) The original Mortgage Note endorsed, "Pay to the order of
________________, without recourse" and signed in the name of the Seller by an
authorized officer. In the event that the Mortgage Loan was acquired by the
Seller in a merger, the endorsement must be by "[SELLER], successor by merger to
[name of predecessor]"; and in the event that the Mortgage Loan was acquired or
originated by the Seller while doing business under another name, the
endorsement must be by "[SELLER], formerly known as [previous name]";(ii)
Original recorded Mortgage, with evidence of recording information thereon
except for any Mortgage which has been forwarded to the appropriate recorder's
office for recordation and which has not been returned by such recording
officer, in which case the Seller shall deliver and release to Purchaser a
certified true copy of any such Mortgage so certified by the Seller with
evidence of such Mortgage's delivery to the appropriate recorder's office. In
addition, the Seller shall deliver and release to the Purchaser the original
recorded Mortgage within 90 days after the Funding Date;(iii) Original
Assignment of Mortgage, in blank, which assignment shall be in form and
substance acceptable for recording but not recorded. In the event that the
Mortgage Loan was acquired by the Seller in a merger, the assignment must be by
"[SELLER], successor by merger to [name of predecessor]"; and in the event that
the Mortgage Loan was acquired or originated by the Seller while doing business
under another name, the assignment must be by "[SELLER], formerly known as
[previous name]";(iv) Original policy of title insurance, except for those
Mortgage Loans originated within 60 days before the Funding Date, for which
Mortgage Loans the Seller shall have delivered and released to the Purchaser the
related binders. In addition, the Seller shall deliver to the Purchaser the
original policy of title insurance within 90 days after the Funding Date. The
policy must be properly endorsed, any necessary notices of transfer must be
forwarded and any other action required to be taken must be taken in order to
fully protect, under the terms of the policy and applicable law, Purchaser's
interest as first mortgagee;(v) Original of all assumption, extensions and
modification agreements;(vi) If required under Section 7, the original policy of
primary mortgage guaranty insurance, or where such insurance is provided by a
master policy, a certified true copy of the master policy and the original
certificate of insurance;(vii) Original recorded intermediate assignments of the
Mortgage, including warehousing assignments, if any. (viii) Copies of documents
evidencing the Borrower's pledge of additional collateral securing the Mortgage
Loan, if applicable.
(ix) With respect to a Cooperative Loan: (i) a copy of the cooperative
lease and the assignment of such cooperative lease to the originator of the
Mortgage Loan, with all intervening assignments showing a complete chain of
title and an assignment thereof by Seller; (ii) the stock certificate together
with an undated stock power relating to such stock certificate executed in
blank; (iii) the recognition agreement in substantially same form as standard
"AZTECH" form; (iv) copies of the financial statement filed by the originator as
secured party and, if applicable, a filed UCC-3 Assignment of the subject
security interest showing a complete chain of title, together with an executed
UCC-3 Assignment of such security interest by the Seller in a form sufficient
for filing (v) loan security agreement.
EXHIBIT H-10
SERVICING AGREEMENT
SUNTRUST
This is a Purchase, Warranties and Servicing Agreement, dated as of
January 1, 2002 and is executed between EMC MORTGAGE CORPORATION, as Purchaser,
with offices located at Mac ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (the "Purchaser"), and SunTrust Mortgage, Inc., with offices
located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Company").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Purchaser has heretofore agreed to purchase from the
Company and the Company has heretofore agreed 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;
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 Company 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.
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 New York or Virginia, or (iii) a day on which
banks in the State of New York or Virginia 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: SunTrust Mortgage, Inc., their 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 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.
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 Company (by an
appraiser who met the requirements of the Company and ▇▇▇▇▇▇ ▇▇▇) 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 Company 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 Adjustable Rate
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 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 sub-servicer) or (iii) with an entity which is an institution
whose deposits are insured by the FDIC, 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, or (d) a principal
subsidiary of a bank holding company, 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 sub-servicer) and of any creditors or
depositors of the institution in which such account is maintained or (v) in a
separate non-trust account without FDIC 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.
ELIGIBLE INSTITUTION: SunTrust Mortgage, Inc., or 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 Adjustable Rate 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.
▇▇▇▇▇▇ 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.
FHLMC: The Federal Home Loan Mortgage Corporation, or any successor
thereto.
FHLMC GUIDE: The FHLMC Single Family Seller/Servicer Guide and all
amendments or additions thereto.
FIDELITY BOND: A fidelity bond to be maintained by the Company pursuant
to Section 4.12.
FIRREA: The Financial Institutions Reform, Recovery, and Enforcement
Act of 1989.
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.
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.
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.
MONTHLY ADVANCE: The aggregate of the advances made by the Company on
any Remittance Date pursuant to Section 5.03.
MONTHLY PAYMENT: The scheduled monthly 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.
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.
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;
(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;
(27) a code indicating whether or not the Mortgage Loan is subject to a
buydown agreement or contains any buydown provisions;
(28) a code indicating whether or not the Mortgage Loan is secured by
an interest in a leasehold estate; and
(29) the Current Appraised Value of the Mortgage Loan and Current LTV,
if applicable.
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.
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.
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.
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;
(ii) (a) demand or time deposits, federal funds or bankers'
acceptances issued by any depository institution 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;
(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;
(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 investment 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 securities
issued by such corporation and held as Permitted Investments
to exceed 10% of the aggregate outstanding principal balances
of all of the Mortgage Loans and Permitted Investments;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable
on demand or on a specified date not more than one year after
the date of issuance thereof) which are rated in one of the
two highest rating categories by each Rating Agency at the
time of such investment;
(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
(vii) any money market funds the collateral of which consists
of 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 (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.
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 obligations underlying such instrument or
if such security provides for payment of both principal and interest with a
yield to maturity 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.
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 Company 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: EMC Mortgage Corporation, its successors in interest and
assigns.
QUALIFIED APPRAISER: An appraiser, duly appointed by the Company, 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 FHLMC.
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.
REMITTANCE DATE: The 18th day of any month, beginning with the First
Remittance Date, or if such 18th day is not a Business Day, the first Business
Day immediately preceding such 18th day.
REO DISPOSITION: The final sale by the Company of any REO Property.
REO DISPOSITION PROCEEDS: Amounts received by the Company in connection
with a related REO Disposition.
REO PROPERTY: A Mortgaged Property acquired by the Company on behalf of
the Purchaser as described in Section 4.13.
REPURCHASE PRICE: With respect to any Mortgage Loan, a price equal to
(i) the product of the greater of 100% or the percentage of par as stated in the
Confirmation multiplied by the Stated Principal Balance of such Mortgage Loan on
the repurchase date, plus (ii) 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, (iii) third party expenses incurred in connection with the
transfer of the Mortgage Loan being repurchased; 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.
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 Company of its servicing
obligations, including, but not limited to, the cost of (a) the preservation,
restoration and protection of the Mortgaged Property, (b) any enforcement,
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 Company 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 Company 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.
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 Company, 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 Company 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 Company involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name appears on a list of servicing officers furnished by the Company to the
Purchaser upon request, as such list may from time to time be amended.
STATED PRINCIPAL BALANCE: As to each Mortgage Loan 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.
SUBSERVICER: Any subservicer which is subservicing the Mortgage Loans
pursuant to a Subservicing Agreement. Any subservicer shall meet the
qualifications set forth in Section 4.01.
SUBSERVICING AGREEMENT: An agreement between the Company and a
Subservicer, if any, for the servicing of the Mortgage Loans.
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 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.
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, with
servicing retained by the Company. 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 the
Company or any successor servicer 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 deposit any such prepaid amounts
into the Custodial Account, which account is established for the benefit of the
Purchaser for subsequent remittance by the Company to the Purchaser.
Section 2.03 SERVICING OF MORTGAGE LOANS.
Simultaneously with the execution and delivery of each Term Sheet, the
Company does hereby agree to directly 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 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 Company is at the will of
the Purchaser, for the sole purpose of servicing the related Mortgage Loan, and
such retention and possession by the Company is in a custodial capacity only.
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 shall be appropriately identified in the Company's
computer system to clearly reflect the ownership of the Mortgage Loans by the
Purchaser. The Company shall 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 Company'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.
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 maintaining, and shall maintain, a complete
set of books and records for the Mortgage Loans that shall be appropriately
identified in the Company's computer system to clearly reflect the ownership of
the Mortgage Loan by the Purchaser. In particular, the Company shall maintain in
its possession, available for inspection by the Purchaser, or its designee and
shall deliver to the Purchaser upon demand, evidence of compliance with all
federal, state and local laws, rules and regulations, and requirements of ▇▇▇▇▇▇
▇▇▇ or FHLMC, 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 FHLMC, 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 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 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 keep at its servicing office books and records in
which, subject to such reasonable regulations as it may prescribe, the Company
shall note transfers of Mortgage Loans. No transfer of a Mortgage Loan 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, provided, however, that 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 hereto executed by the
transferee shall have been delivered to the Company. The Purchaser also shall
advise the Company of the transfer. Upon receipt of notice of the transfer, the
Company shall ▇▇▇▇ its books and records to reflect the ownership of the
Mortgage Loans of such assignee, and the previous Purchaser shall be released
from its obligations hereunder with respect to the Mortgage Loans sold or
transferred. In no event will the Company be obligated to report and service any
Mortgage Loans for the new Purchaser for that month's reporting cycle if the
notice of the transfer is received less than five (5) business days prior to
such month's end.
Section 2.07 DELIVERY OF MORTGAGE LOAN DOCUMENTS.
The Company shall deliver and release 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), (9) and (16) in Exhibit A hereto shall be delivered by the
Company 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 may have in its possession,
shall be retained by the Company in trust for the Purchaser. If the Company
cannot deliver 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 120 days from the related Closing Date, deliver 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 120 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
deliver 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
180 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 effect delivery as soon as
possible thereafter, provided that if such documents are not delivered by the
270th 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.
The Company shall pay 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 prepare,
in recordable form, all assignments of mortgage necessary to assign the Mortgage
Loans to Purchaser, or its designee. Company shall be responsible for recording
the assignments of mortgage.
Company shall provide an original or duplicate 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 forward to the Purchaser, or its designee, original
documents evidencing an assumption, modification, consolidation or extension of
any Mortgage Loan entered into in accordance with Section 4.01 or 6.01 within
one week of their execution; provided, however, that the Company shall provide
the Purchaser, or its designee, with 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, 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 no longer requires possession of the document, and provided that during
the time that any such documentation is held by the Company, 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 pursuant to this paragraph.
Section 2.08 QUALITY CONTROL PROCEDURES.
The Company must have 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
must be capable of evaluating and monitoring the overall quality of its loan
production and servicing activities. The program is 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 IN FULL; NEAR TERM PAYMENT
DEFAULTS
In the event any Principal Prepayment in full 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
in full. Such remittance shall be made by the Company to Purchaser no later than
the third Business Day following receipt of such Principal Prepayment in full by
the Company.
In the event either 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, 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.
Section 2.10 MODIFICATION OF OBLIGATIONS. Purchaser may, without any
notice to Company, extend, compromise, renew, release, change, modify, adjust or
alter, by operation of law or otherwise, any of the obligations of the
Mortgagors or other persons obligated under a Mortgage Loan without releasing or
otherwise affecting the obligations of Company under this Agreement, or with
respect to such Mortgage Loan, except to the extent Purchaser's extension,
compromise, release, change, modification, adjustment, or alteration affects
Company's ability to collect the Mortgage Loan or realize on the security of the
Mortgage, but then only to the extent such action has such effect.
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 Virginia 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;
(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,
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 origination or 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;
(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 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 and servicing practices used by the Company and any
prior originator or 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 origination and 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 Company, on behalf of an
investor, is entitled to collect, all such payments are in the possession of, or
under the control of, the Company, and there exist no deficiencies in connection
therewith for which customary arrangements for repayment thereof have not been
made. All escrow payments have been collected in full compliance with state and
federal law 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) Company is an approved seller/servicer of residential mortgage
loans for ▇▇▇▇▇▇ ▇▇▇, FHLMC and HUD, with such facilities, procedures and
personnel necessary for the sound servicing of such mortgage loans. The Company
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 sell mortgage loans to and service mortgage loans for ▇▇▇▇▇▇ Mae and FHLMC
and no event has occurred which would make Company unable to comply with
eligibility requirements or which would require notification to either ▇▇▇▇▇▇
▇▇▇ or FHLMC;
(k) The Company does not believe, nor does it have any cause or reason
to believe, that it cannot perform each and every covenant 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;
(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 performing such services and that the
entire Servicing Fee shall be treated by the Company, for accounting and tax
purposes, as compensation for the servicing and administration of the Mortgage
Loans pursuant to this Agreement. 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 of its
parent, 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) The Company has not dealt with any broker, investment banker, agent
or other person that may be entitled to any commission or compensation in
connection with the sale of the Mortgage Loans; and
(p) The Company has, and shall maintain at all times, at its own
expense, a blanket fidelity bond and an errors and omissions insurance policy as
described more fully in Section 4.12 of this Agreement.
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:
(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 Company 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 Company'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 Company 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 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;
(g) All buildings or other customarily insured improvements upon the
Mortgaged Property are insured by an insurer acceptable under the ▇▇▇▇▇▇ Mae or
FHLMC Guides, against loss by fire, hazards of extended coverage and such other
hazards as are provided for in the ▇▇▇▇▇▇ ▇▇▇ or FHLMC 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 FHLMC 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 ▇▇▇▇▇▇ ▇▇▇ or FHLMC 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, 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 classified as a (a) a "high cost" loan
under the Home Ownership and Equity Protection Act of 1994 or (b) a "high cost",
"threshold", or "predatory" loan under any other applicable state, federal or
local law; the Company maintains, and shall maintain, evidence of such
compliance as required by applicable law or regulation and shall make such
evidence available for inspection at the Company's office during normal business
hours upon reasonable advance notice;
(i) The Mortgage has not been satisfied, 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;
(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 and
FHLMC. 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;
(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, the Company 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 and supervising the
servicing of 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 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. The Company intends to relinquish all rights to possess,
control and monitor the Mortgage Loan, except for the purposes of servicing 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 FHLMC (including adjustable rate endorsements), issued by a title
insurer acceptable to ▇▇▇▇▇▇ Mae or FHLMC 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. 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;
(o) There are no mechanics' or similar liens or claims which have been
filed for work, labor or material (and no rights are outstanding that under law
could give rise to such liens) affecting the related Mortgaged Property which
are or may be liens prior to or equal 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 by or for the Company pursuant
to, and conforms with, the Company's underwriting guidelines attached as 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 Company 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;
(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, approved by the Company, 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 FHLMC 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 FHLMC;
(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
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) The Mortgage Loan does not contain balloon or "graduated payment"
features; unless otherwise indicated on the related Mortgage Loan Schedule, 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
Mortgage Note requires a monthly payment which is sufficient (a) during the
period prior to the first adjustment 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 Adjustment 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 provisions 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;
(bb) (INTENTIONALLY LEFT BLANK)
(cc) (INTENTIONALLY LEFT BLANK)
(dd) (INTENTIONALLY LEFT BLANK)
(ee) (INTENTIONALLY LEFT BLANK)
(ff) (INTENTIONALLY LEFT BLANK)
(gg) (INTENTIONALLY LEFT BLANK)
(hh) In the event the Mortgage Loan had an LTV at origination greater
than 80.00%, the excess of the principal balance of the Mortgage Loan over 75.0%
of the Appraised Value of the Mortgaged Property with respect to a Refinanced
Mortgage Loan, or the lesser of the Appraised Value or the purchase price of the
Mortgaged Property with respect to a purchase money Mortgage Loan was insured as
to payment defaults by a Primary Mortgage Insurance Policy issued by a Qualified
Insurer. 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. None of the Mortgage Loans are
subject to "lender-paid" mortgage insurance;
(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) Unless otherwise indicated on the related Mortgage Loan Schedule,
none of the Mortgage Loans are secured by an interest in a leasehold estate. 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. 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;
(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;
(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
Soldiers' and Sailors' Civil Relief Act of 1940;
(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
Company 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 five 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) The Mortgage Loan was originated by a mortgagee approved by the
Secretary of Housing and Urban Development pursuant to sections 203 and 211 of
the National Housing Act, a savings and loan association, a savings bank, a
commercial bank, credit union, insurance company or similar institution which is
supervised and examined by a federal or state authority;
(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, Company 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;
(xx) With respect each Mortgage Loan secured in whole or in part by the
interest of the Mortgagor as a lessee under a ground lease of a Mortgaged
Property (a "Ground Lease"):
(i) Such Ground Lease is valid, in good standing, and in full
force and effect;
(ii) The lessee is not in default under any provision of the
lease;
(iii) The term of the Ground Lease exceeds the maturity date
of the related Mortgage Loan by at least ten years;
(iv) The mortgagee under the Mortgage Loan is given at least
30 days' notice of any default and an opportunity to cure any defaults
under the Ground Lease or to take over the Mortgagor's rights under the
Ground Lease;
(v) The Ground Lease does not contain any default provisions
that could give rise to forfeiture or termination of the Ground Lease
except for the non-payment of the Ground Lease rents; and
(vi) The Ground Lease provides that the leasehold can be
transferred, mortgaged and sublet an unlimited number of times either
without restriction or on payment of a reasonable fee and delivery of
reasonable documentation to the lessor.
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,
and such breach is not cured within sixty (60) days of the earlier of either
discovery by or notice to the Company of such breach, 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.
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 (i) the earlier of 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, and (iii) demand upon the Company by the Purchaser for
compliance with this Agreement.
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 convenants to the Company that,
as of the related Closing Date or as of such date specifically provided herein:
(a) The Purchaser is a corporation, dully organized validly existing
and in good standing under the laws of the State of Delaware and is qualified to
transact business in, is in good standing under the laws of, and possesses all
licenses necessary for the conduct of its business in, each state in which any
Mortgaged Property is located or is otherwise except or not required under
applicable law to effect such qualification or license;
(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, 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;
(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 and necessary 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 Seller 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 COMPANY TO ACT AS SERVICER.
The Company, as independent contract servicer, shall service and
administer the Mortgage Loans in accordance with 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 Company 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 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, 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 and the Company.
Consistent with the terms of this Agreement and the related Term Sheet,
the Company 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 Company's reasonable and prudent determination such waiver,
modification, postponement or indulgence is not materially adverse to the
Purchaser, provided, however, that unless the Company has obtained the prior
written consent of the Purchaser, the Company 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 Company shall, on the Business Day immediately preceding
the Remittance Date in any month in which any such principal or interest payment
has been deferred, deposit in the Custodial Account from its own funds, in
accordance with Section 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 Company 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 Company 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 Company 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, if required.
Notwithstanding anything in this Agreement to the contrary, if any
Mortgage Loan becomes subject to a Pass-Through Transfer, the Company shall not
permit any modification with respect to any Mortgage Loan without permission of
the master servicer.
Notwithstanding anything in this Agreement to the contrary, if any
Mortgage Loan becomes subject to a Pass-Through Transfer, any REO Property shall
be disposed of by the Company before the close of the third taxable year
following the taxable year in which the related Mortgage Loan became an REO
Property, unless the Company is otherwise directed by the master servicer.
The Company shall comply with any written instructions received from
the master servicer or any assignor pertaining to the servicing of the Mortgage
Loans and the acquisition, holding or disposition of any REO Property to ensure
the continued qualification of each REMIC as a REMIC in accordance with the
REMIC Provisions.
In servicing and administering the Mortgage Loans, the Company shall
employ Accepted Servicing Practices, giving due consideration to the Purchaser's
reliance on the Company. 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 as servicer.
The Mortgage Loans may be subserviced by a Subservicer on behalf of the
Company provided that the Subservicer is an entity that engages in the business
of servicing loans, and in either case shall be 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 Subservicer to perform its obligations
hereunder and under the Subservicing Agreement, and in either case shall be a
FHLMC or ▇▇▇▇▇▇ ▇▇▇ 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 ▇▇▇▇▇▇ Mae or for seller/servicers imposed by ▇▇▇▇▇▇ ▇▇▇ or FHLMC, or
which would require notification to ▇▇▇▇▇▇ Mae or FHLMC. In addition, each
Subservicer 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 Subservicing Agreement. The Company may perform any of its servicing
responsibilities hereunder or may cause the Subservicer to perform any such
servicing responsibilities on its behalf, but the use by the Company of the
Subservicer shall not release the Company from any of its obligations hereunder
and the Company shall remain responsible hereunder for all acts and omissions of
the Subservicer as fully as if such acts and omissions were those of the
Company. The Company shall pay all fees and expenses of the Subservicer from its
own funds, and the Subservicer's fee shall not exceed the Servicing Fee. Company
shall notify Purchaser promptly in writing upon the appointment of any
Subservicer.
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 the Subservicer and arrange for any
servicing responsibilities to be performed by a successor subservicer meeting
the requirements in the preceding paragraph, provided, however, that nothing
contained herein shall be deemed to prevent or prohibit the Company, at the
Company's option, from electing to service the related Mortgage Loans itself. In
the event that the Company's responsibilities and duties under this Agreement
are terminated pursuant to Section 4.13, 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 Subservicer 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
Subservicer 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 the Subservicer or any
reference herein to actions taken through the Subservicer 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
alone were servicing and administering the Mortgage Loans. The Company shall be
entitled to enter into an agreement with the Subservicer for indemnification of
the Company by the Subservicer 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 Subservicer to perform any of its servicing duties, responsibilities
and obligations hereunder.
Any Subservicing Agreement and any other transactions or services
relating to the Mortgage Loans involving the Subservicer shall be deemed to be
between the Subservicer and Company alone, and the Purchaser shall have no
obligations, duties or liabilities with respect to the Subservicer including no
obligation, duty or liability of Purchaser to pay the Subservicer'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 Subservicer 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 will proceed diligently to
collect all payments due under each Mortgage Loan when the same shall become due
and payable and shall, to the extent such procedures shall be consistent with
this Agreement, Accepted Servicing Practices, and the terms and provisions of
any related Primary Mortgage Insurance Policy, follow such collection procedures
as it follows with respect to mortgage loans comparable to the Mortgage Loans
and held for its own account. Further, the Company will 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 Company waive its right to any prepayment penalty
or premium without the prior written consent of Purchaser and Company 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 use its best efforts, consistent with the procedures
that the Company would use in servicing loans for its own account, consistent
with Accepted Servicing Practices, any 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 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 Company
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 Company through Insurance Proceeds or
Liquidation Proceeds from the related Mortgaged Property, as contemplated in
Section 4.05. Company shall obtain prior approval of Purchaser as to repair or
restoration expenses in excess of ten thousand dollars ($10,000). The Company
shall 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 it 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 the Company has reasonable cause to believe that a
Mortgaged Property is contaminated by hazardous or toxic substances or wastes,
or if the Purchaser otherwise requests an environmental inspection or review of
such Mortgaged Property, such an inspection or review is to be conducted by a
qualified inspector at the Purchaser's expense. Upon completion of the
inspection, the Company shall promptly provide the Purchaser with a written
report of the environmental inspection. After reviewing the environmental
inspection report, the Purchaser shall determine how the Company shall proceed
with respect to the Mortgaged Property.
Notwithstanding anything to the contrary contained herein, the
Purchaser may, at the Purchaser's sole option, terminate the Company as servicer
of any Mortgage Loan which becomes one-hundred twenty (120) days or greater
delinquent in payment of a scheduled Monthly Payment, without payment of any
termination fee with respect thereto, provided that the Company shall on the
date said termination takes effect be reimbursed for any unreimbursed advances
of the Company's funds made pursuant to Section 5.03 and any unreimbursed
Servicing Advances and Servicing Fees in each case relating to the Mortgage Loan
underlying such delinquent Mortgage Loan notwithstanding anything to the
contrary set forth in Section 4.05. In the event of any such termination, the
provisions of Section 11.01 hereof shall apply to said termination and the
transfer of servicing responsibilities with respect to such delinquent Mortgage
Loan to the Purchaser or its designee.
In the event that a Mortgage Loan becomes part of a REMIC, and becomes
REO Property, such property shall be disposed of by the Company, 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 Company 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. Company shall 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 either itself or through an
agent selected by Company, 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 perform the tax withholding and reporting
related to Sections 1445 and 6050J of the Code.
Section 4.04 ESTABLISHMENT OF CUSTODIAL ACCOUNTS; DEPOSITS IN CUSTODIAL
ACCOUNTS.
The Company shall segregate and hold all funds collected and received
pursuant to each Mortgage Loan separate and apart from any of its own funds and
general assets and shall establish and maintain one or more Custodial Accounts.
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 up to the FDIC 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 Company 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 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 Company in connection
with any REO Property pursuant to Section 4.13 and in connection therewith, the
Company shall 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;
(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 Company pursuant to
Section 4.10 in connection with the deductible clause in any blanket hazard
insurance policy, such deposit shall be made from the Company'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 Company 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
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 Company 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 Company'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 Company'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 Company'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
Company'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;
(iv) to pay to itself as part of its servicing compensation (a) any
interest earned on funds in the Custodial Account (all such interest to be
withdrawn monthly not later than each Remittance Date), and (b) the Servicing
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 Company; and
(vi) 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 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 must be invested in Permitted Investments. Funds deposited in the
Escrow Account may be drawn on by the Company 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 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.
The Company shall 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 retain any interest paid on funds deposited in the
Escrow Account by the depository institution other than interest on escrowed
funds required by law to be paid to the Mortgagor and, to the extent required by
law, the Company shall pay interest on escrowed funds to the Mortgagor
notwithstanding that the Escrow Account is non-interest bearing or that interest
paid thereon is insufficient for such purposes. 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 Company 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 Company for any Servicing Advance made by Company
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 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; and
(viii) to pay to the Mortgagors or other parties Insurance Proceeds
deposited in accordance with Section 4.06.
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 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 Company 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 determine that any such
payments are made by the Mortgagor at the time they first become due. The
Company assumes full responsibility for the timely payment of all such bills and
shall effect timely payments of all such bills irrespective of the Mortgagor's
faithful performance in the payment of same or the making of the Escrow Payments
and shall make advances from its own funds to effect such payments.
The Company will maintain in full force and effect 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 with the approval of Purchaser, or as required by applicable law
or regulation. The Company will not cancel or refuse to renew any Primary
Mortgage Insurance Policy in effect on the Closing Date that is required to be
kept in force under this Agreement unless a replacement Primary Mortgage
Insurance Policy for such canceled or nonrenewed policy is obtained from and
maintained with a Qualified Insurer. The Company shall not take any action which
would result in non-coverage under any applicable Primary Mortgage Insurance
Policy of any loss which, but for the actions of the Company would have been
covered thereunder. In connection with any assumption or substitution agreement
entered into or to be entered into pursuant to Section 6.01, the Company shall
promptly notify the insurer under the related Primary Mortgage Insurance Policy,
if any, of such assumption or substitution of liability in accordance with the
terms of such policy and shall take all actions which may be required by such
insurer as a condition to the continuation of coverage under the Primary
Mortgage Insurance Policy. If such Primary Mortgage Insurance Policy is
terminated as a result of such assumption or substitution of liability, the
Company shall obtain a replacement Primary Mortgage Insurance Policy as provided
above.
In connection with its activities as servicer, the Company agrees to
prepare and present, on behalf of itself and the Purchaser, claims to the
insurer under any Private Mortgage Insurance Policy in a timely fashion in
accordance with the terms of such 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 respecting a defaulted Mortgage Loan. Pursuant
to Section 4.04, any amounts collected by the Company under any Primary Mortgage
Insurance Policy shall be deposited in the Custodial Account, subject to
withdrawal pursuant to Section 4.05.
Section 4.09 TRANSFER OF ACCOUNTS.
The Company 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 to be maintained for each Mortgage Loan fire
and hazard insurance with extended coverage as is acceptable to ▇▇▇▇▇▇ Mae or
FHLMC 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 ▇▇▇▇▇▇ ▇▇▇ or FHLMC, 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 Company 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 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 immediately force place the required
flood insurance on the Mortgagor's behalf. The Company shall 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 Company 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 Company 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.
Section 4.11 MAINTENANCE OF MORTGAGE IMPAIRMENT INSURANCE POLICY.
In the event that the Company shall obtain and maintain a blanket
policy issued by an insurer acceptable to ▇▇▇▇▇▇ Mae or FHLMC 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, 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 agrees to prepare and present, on behalf of the Purchaser, claims under
any such blanket policy in a timely fashion in accordance with the terms of such
policy. Upon request of the Purchaser, the Company shall cause to be delivered
to the Purchaser a certified true copy of such policy and shall use its best
efforts to obtain a statement from the insurer thereunder that such policy shall
in no event be terminated or materially modified without thirty (30) days' prior
written notice to the Purchaser.
Section 4.12 FIDELITY BOND, ERRORS AND OMISSIONS INSURANCE.
The Company shall maintain, at its own expense, a blanket fidelity bond
and an errors and omissions insurance policy, with broad coverage with
responsible companies on all officers, employees or other persons acting in any
capacity with regard to the Mortgage Loan 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 Company
against losses, including forgery, theft, embezzlement and fraud of such
persons. The errors and omissions insurance shall protect and insure the Company
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
Company 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 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 ▇▇▇▇▇▇ ▇▇▇ in the ▇▇▇▇▇▇ Mae Guides. Upon
request by the Purchaser, the Company shall 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. 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, Company shall 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.
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
Company 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 notify the Purchaser in accordance with the ▇▇▇▇▇▇
▇▇▇ 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 Company 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
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, either itself or through an agent selected by the
Company, 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 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 make or cause to be made a written report of
each such inspection. Such reports shall be retained in the Mortgage File and
copies thereof shall be forwarded by the Company to the Purchaser.
The Company shall use its best efforts to dispose of the REO Property
as soon as possible and shall sell such REO Property in any event within one
year after title has been taken to such REO Property, unless the Company
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 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 Company at such price, and upon such terms and conditions, as
the Company deems to be in the best interests of the Purchaser (subject to the
above conditions) only with the prior written consent of the Purchaser. Company
shall provide monthly reports to Purchaser in reference to the status of the
marketing of the REO Properties.
Notwithstanding anything to the contrary contained herein, the
Purchaser may, at the Purchaser's sole option, terminate the Company as servicer
of any such REO Property without payment of any termination fee with respect
thereto, provided that the Company shall on the date said termination takes
effect be reimbursed for any unreimbursed advances of the Company's funds made
pursuant to Section 5.03 and any unreimbursed Servicing Advances and Servicing
Fees in each case relating to the Mortgage Loan underlying such REO Property
notwithstanding anything to the contrary set forth in Section 4.05. In the event
of any such termination, the provisions of Section 11.01 hereof shall apply to
said termination and the transfer of servicing responsibilities with respect to
such REO Property to the Purchaser or its designee. Within five Business Days of
any such termination, the Company shall, if necessary convey such property to
the Purchaser and shall further provide the Purchaser with the following
information regarding the subject REO Property: the related drive by appraisal
or brokers price opinion, and copies of any related Mortgage Impairment
Insurance Policy claims. In addition, within five Business Days, the Company
shall provide the Purchaser with the following information regarding the subject
REO Property: the related trustee's deed upon sale and copies of any related
hazard insurance claims, or repair bids.
Section 4.14 NOTIFICATION OF MATURITY DATE.
With respect to each Mortgage Loan, the Company 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 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 Company 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 Company'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.
With respect to any remittance received by the Purchaser after the
Remittance Date, the Company shall pay to the Purchaser interest on any such
late payment at an annual rate equal to the Prime Rate, adjusted as of the date
of each change, plus three (3) 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 Company of any such interest shall not be
deemed an extension of time for payment or a waiver of any Event of Default by
the Company. On each Remittance Date, the Company shall 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 furnish to Purchaser an individual loan accounting
report, as of the last Business Day of each month, in the Company'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 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 Company
during the prior distribution period;
(iv) the aggregate Stated Principal Balance of the Mortgage Loans;
(v) the aggregate of any expenses reimbursed to the Company 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;
(vii) with respect to each Mortgage Loan whose Mortgagor is receiving
relief under the Soldier's and Sailor's Civil Relief Act of 1940: (a) an
indication that the Mortgage Loan is subject to such relief, (b) the new
Mortgage Interest Rate as a result of such relief, and (c) the old Mortgage
Interest Rate prior to such relief; and
(viii) with respect to each Mortgage Loan whose Mortgagor is no longer
receiving relief under the Soldier's and Sailor's Civil Relief Act of 1940: (a)
an indication that the Mortgage Loan is no longer subject to such relief, (b)
the new Mortgage Interest Rate since such relief has been waived, and (c) the
old Mortgage Interest Rate while such relief was granted.
The Company shall 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 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.
Section 5.03 MONTHLY ADVANCES BY THE COMPANY.
Not later than the close of business on the Business Day preceding each
Remittance Date, the Company shall deposit in the Custodial Account an amount
equal to all payments not previously advanced by the Company, 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 Company's obligation to make such Monthly Advances as to any
Mortgage Loan will continue through the last Monthly Payment due prior to the
payment in full of the Mortgage Loan, or through the 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 Company deems such advance to be
nonrecoverable. In such event, the Company shall deliver to the Purchaser an
Officer's Certificate of the Company to the effect that an officer of the
Company has reviewed the related Mortgage File and has made the reasonable
determination that any additional advances are nonrecoverable.
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 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 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 will, to the extent it has knowledge of any conveyance or
prospective conveyance by any Mortgagor of the Mortgaged Property (whether by
absolute conveyance or by contract of sale, and whether or not the Mortgagor
remains or is to remain liable under the Mortgage Note and/or the Mortgage),
exercise its rights to accelerate the maturity of such Mortgage Loan under any
"due-on-sale" clause to the extent permitted by law; provided, however, that the
Company shall not exercise any such rights if prohibited by law or the terms of
the Mortgage Note from doing so or if the exercise of such rights would impair
or threaten to impair any recovery under the related Primary Mortgage Insurance
Policy, if any. If the Company reasonably believes it is unable under applicable
law to enforce such "due-on-sale" clause, the Company, with the approval of the
Purchaser, will enter into an assumption agreement with the person to whom the
Mortgaged Property has been conveyed or is proposed to be conveyed, pursuant to
which such person becomes liable under the Mortgage Note and, to the extent
permitted by applicable state law, the Mortgagor remains liable thereon. Where
an assumption is allowed pursuant to this Section 6.01, the Company, 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.
In connection with any such assumption or substitution of liability,
the Company shall follow the underwriting practices and procedures of the
Company. 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 Company diligently shall, to the extent
permitted by the Mortgage or the Mortgage Note and by applicable law, accelerate
the maturity of the Mortgage Loan. The Company shall 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 Company 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 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
Company of a notification that payment in full will be escrowed in a manner
customary for such purposes, the Company will immediately notify the Purchaser
by a certification, which certification shall include a statement to the effect
that all amounts received or to be received in connection with such payment
which are required to be deposited in the Custodial Account pursuant to Section
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 Company, the
related Mortgage Loan Documents and, upon its receipt of such documents, the
Company shall 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 Company 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.
In the event the Company 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, 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 maintain the Fidelity Bond and errors and omissions insurance insuring the
Company against any loss it may sustain with respect to any Mortgage Loan not
satisfied in accordance with the procedures set forth herein.
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, the Purchaser shall, upon request of the Company 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 Company.
Such servicing receipt shall obligate the Company to return the related Mortgage
documents to the Purchaser when the need therefor by the Company 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 Company
has delivered to the Purchaser a certificate of a Servicing Officer certifying
as to the name and address of the Person to which such Mortgage File or such
document was delivered and the purpose or purposes of such delivery. Upon
receipt of a certificate of a Servicing Officer stating that such Mortgage Loan
was liquidated, the servicing receipt shall be released by the Purchaser to the
Company.
Section 6.03 SERVICING COMPENSATION.
As compensation for its services hereunder, the Company shall be
entitled to withdraw from the Custodial Account (to the extent of interest
payments collected on the Mortgage Loans) or to retain from interest payments
collected on the Mortgage Loans, the amounts provided for as the Company's
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 retained by 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 required to pay all expenses incurred by it in connection with
its servicing activities hereunder and shall not be entitled to reimbursement
therefor except as specifically provided for.
Section 6.04 ANNUAL STATEMENT AS TO COMPLIANCE.
The Company will deliver to the Purchaser not later than 90 days
following the end of each fiscal year of the Company beginning in March, 2002,
an Officers' Certificate stating, as to each signatory thereof, that (i) a
review of the activities of the Company during the preceding calendar year and
of performance under this Agreement has been made under such officers'
supervision, and (ii) to the best of such officers' knowledge, based on such
review, the Company has fulfilled all of its obligations under this Agreement
throughout such year, or, if there has been a default in the fulfillment of any
such obligation, specifying each such default known to such officers and the
nature and status of cure provisions thereof. Copies of such statement shall be
provided by the Company to the Purchaser upon request.
Section 6.05 ANNUAL INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS' SERVICING
REPORT.
Within ninety (90) days of Company's fiscal year end beginning in
March, 2002 the Company at its expense shall cause a firm of independent public
accountants which is a member of the American Institute of Certified Public
Accountants to furnish a statement to the Purchaser to the effect that such firm
has examined certain documents and records relating to the Company's servicing
of mortgage loans of the same type as the Mortgage Loans pursuant to 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 Company'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. Copies of such
statement shall be provided by the Company to the Purchaser. In addition, on an
annual basis, Company shall provided Purchaser with copies of its audited
financial statements.
Section 6.06 PURCHASER'S RIGHT TO EXAMINE COMPANY RECORDS.
The Purchaser shall have the right to examine and audit upon reasonable
notice to the Company, during business hours or at such other times as might be
reasonable under applicable circumstances, any and all of the books, records,
documentation or other information of the Company, or held by another for the
Company or on its behalf or otherwise, which relates to the performance or
observance by the Company of the terms, covenants or conditions of this
Agreement.
The Company shall provide to the Purchaser and any supervisory agents
or examiners representing a state or federal governmental agency having
jurisdiction over the Purchaser, including but not limited to OTS, FDIC and
other similar entities, access to any documentation regarding the Mortgage Loans
in the possession of the Company 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 Company, and in
accordance with the federal government, FDIC, OTS, or any other similar
regulations.
ARTICLE VII
REPORTS TO BE PREPARED BY SERVICER
Section 7.01 COMPANY SHALL PROVIDE INFORMATION AS REASONABLY REQUIRED.
The Company shall 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 Company 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 Company under
this Agreement. The Company agrees to execute and deliver all such instruments
and take all such action as the Purchaser, from time to time, may reasonably
request in order to effectuate the 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 Company
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 furnish promptly to
the Purchaser or a prospective purchaser copies of the statements specified
above.
The Company shall 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 Company's servicing facilities for the purpose of satisfying such
prospective purchaser that the Company has the ability to service the Mortgage
Loans as provided in this Agreement.
ARTICLE VIII
THE 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
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 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 follow any 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
Company 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. The provisions of this Section 8.01 shall survive termination of
this Agreement.
Section 8.02 MERGER OR CONSOLIDATION OF THE COMPANY.
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.
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, SAIF and/or BIF, and which is a
HUD-approved mortgagee whose primary business is in origination and servicing of
first lien mortgage loans, and (iii) who is a ▇▇▇▇▇▇ ▇▇▇ or FHLMC 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 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.
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 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 NO TRANSFER OF SERVICING.
With respect to the retention of the Company to service the Mortgage
Loans hereunder, the Company acknowledges that the Purchaser has acted in
reliance upon the Company's independent status, the adequacy of its servicing
facilities, plan, personnel, records and procedures, its integrity, reputation
and financial standing and the continuance thereof. Without in any way limiting
the generality of this Section, the Company shall not either assign this
Agreement or the servicing hereunder or delegate its rights or duties hereunder
or any portion thereof, without the prior written approval of the Purchaser,
which consent 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 the servicing
responsibilities hereunder 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.
ARTICLE IX
DEFAULT
Section 9.01 EVENTS OF DEFAULT.
In case one or more of the following Events of Default by the Company
shall occur and be continuing, that is to say:
(i) any failure by the Company to remit to the Purchaser any payment
required to be made under the terms of this Agreement which continues unremedied
for a period of one (1) Business Day after the date upon which written notice of
such failure, requiring the same to be remedied, shall have been given to the
Company by the Purchaser; or
(ii) 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
(iii) a decree or order of a court or agency or supervisory authority
having jurisdiction for the appointment of a conservator or receiver or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshalling of
assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Company and such
decree or order shall have remained in force undischarged or unstayed for a
period of sixty days; or
(iv) 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
(v) 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; or
(vi) Company ceases to be approved by either ▇▇▇▇▇▇ ▇▇▇ or FHLMC as a
mortgage loan seller or servicer for more than thirty days; or
(vii) 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 the servicing responsibilities
hereunder or to delegate its duties hereunder or any portion thereof; or
(viii) the Company 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 Company's ability to
perform its obligations hereunder; or
(ix) the Company fails to meet the eligibility criteria set forth in
the last sentence of Section 8.02.
Then, and in each and every such case, so long as an Event of Default
shall not have been remedied, the Purchaser, by notice in writing to the Company
(except in the case of an Event of Default under clauses (iii), (iv) or (v)
above, in which case, automatically and without notice) Company may, in addition
to whatever rights the Purchaser may have under Sections 3.03 and 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. On or after the receipt by the Company of
such written notice (or, in the case of an Event of Default under clauses (iii),
(iv) or (v) above, in which case, automatically and without notice), all
authority and power of the Company under this Agreement, whether with respect to
the Mortgage Loans or otherwise, shall pass to and be vested in the successor
appointed pursuant to Section 11.01. 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 Mortgage Files, and do or
accomplish all other acts or things necessary or appropriate to effect the
purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Mortgage Loans and related documents, or
otherwise, at the Company's sole expense. The Company agrees to cooperate with
the Purchaser and such successor in effecting the termination of the Company's
responsibilities and rights hereunder, including, without limitation, the
transfer to such successor for administration by it of all cash amounts which
shall at the time be credited by the Company to the Custodial Account or Escrow
Account or thereafter received with respect to the Mortgage Loans or any REO
Property.
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.
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)
termination with cause under the terms of this Agreement.
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 4.13, 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 4.13, 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 deliver to the successor the funds in the
Custodial Account and the Escrow Account and the Mortgage Files and related
documents and statements held by it hereunder and the Company 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.
Upon a successor's acceptance of appointment as such, the Company shall
notify by mail the Purchaser of such appointment.
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 [RESERVED]
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:
SunTrust Mortgage, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) if to the Purchaser:
EMC Mortgage Corporation
Mac ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Bear ▇▇▇▇▇▇▇ Mortgage Capital Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
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.
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.
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, provided such information is identified as confidential
non-public information.
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 Company'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, 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. 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.
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.
From and after the Closing Date, the Company agrees that it will not
take any action or permit or cause any action to be taken by any of its agents
or affiliates, to personally, by telephone or mail, solicit the borrower or
obligor under any Mortgage Loan to refinance the Mortgage Loan, in whole or in
part, without the prior written consent of the Purchaser. Notwithstanding the
foregoing, it is understood and agreed that (i) promotions undertaken by the
Company or any affiliate of the Company which are directed to the general public
at large, or segments thereof, provided that no segment shall consist primarily
of the Mortgage Loans, including, without limitation, mass mailing based on
commercially acquired mailing lists, newspaper, radio and television
advertisements and (ii) responses to unsolicited requests or inquiries made by a
Mortgagor or an agent of a Mortgagor, shall not constitute solicitation under
this Section 11.16. This Section 11.16 shall not be deemed to preclude the
Company or any of its affiliates from soliciting any Mortgagor for any other
financial products or services. The Company shall use its best efforts to
prevent the sale of the name of any Mortgagor to any Person who is not affiliate
of the Company.
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 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.
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 among
the Purchaser, the Company, and any servicer 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
affilates for disclosure contained in any offering document relating to the
Company or its affilates, the Mortgage Loans and the underwriting standards of
the Mortgage Loans. The Purchaser shall be responsible for the costs relating to
the delivery of such information.
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 no event will the Company be obligated to report and service any
Mortgage Loans for the new purchaser for that month's reporting cycle if the
notice of the transfer is received less than five (5) business days prior to
such month's end.
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.
EMC MORTGAGE CORPORATION
Purchaser
By:________________________
Name:
Title:
SUNTRUST MORTGAGE, INC.
Company
By: _______________________
Name:
Title:
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.
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).
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.
EXHIBIT B
CUSTODIAL ACCOUNT LETTER AGREEMENT
______________, 2001
To: [_______________________]
(the "Depository")
As "Company" under the Purchase, Warranties and Servicing Agreement,
dated as of [_____________________] 1, 2001 Adjustable Rate Mortgage Loans (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 will be invested in Permitted Investments as defined in the Agreement.
[__________________________]
By:____________________________
Name:__________________________
Title:_________________________
EXHIBIT C
ESCROW ACCOUNT LETTER AGREEMENT
_____________, 2001
To: [_______________________]
(the "Depository")
As "Company" under the Purchase Warranties and Servicing Agreement,
dated as of [____________________]1, 2001 Adjustable Rate Mortgage Loans (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 will be invested in Permitted Investments as defined in the Agreement.
[__________________________]
By:____________________________
Name:__________________________
Title:_________________________
EXHIBIT D
FORM OF ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
This is a Purchase, Assignment, Assumption and Recognition Agreement
(this "PAAR Agreement") made as of __________, 200__, among EMC Mortgage
Corporation (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;
(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.
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:
(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;
(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;
(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
(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.
(1) 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.
(a) 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,
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With a copy to ______________________________________.
(b) In the case of Assignor,
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(c) In the case of Assignee,
EMC Mortgage Corporation
Mac ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
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▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ___________
Telecopier No.: (212) 272-____
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.
(b) [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: ________________________
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:
"Company ceases to be approved by either ▇▇▇▇▇▇ ▇▇▇ or FHLMC as a
mortgage loan seller or servicer for more than thirty days, or the Company fails
to meet the servicer eligibility requirements of the Supplemental PMI Insurer;
or"]
IN WITNESS WHEREOF, the parties hereto have executed this PAAR
Agreement as of the day and year first above written.
EMC MORTGAGE CORPORATION
Assignor
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
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Assignee
By:
-----------------------------------------
Name:
---------------------------------------
Title:
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Company
By:
-----------------------------------------
Name:
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Title:
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ATTACHMENT 1
ASSIGNED LOAN SCHEDULE
ATTACHMENT 2
PURCHASE, WARRANTIES AND SERVICING AGREEMENT
(ii)
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 have been returned and received by
the Purchaser.
Dated:________________
By:________________________________
Signature
________________________________
Title
(b) EXHIBIT H
COMPANY'S UNDERWRITING GUIDELINES
EXHIBIT I
TERM SHEET
This TERM SHEET (the "Term Sheet") dated _____________, between
SunTrust Mortgage, Inc., a Virginia corporation, located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Company") and EMC Mortgage Corporation, a
Delaware corporation, located at Mac ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (the "Purchaser") is made pursuant to the terms
and conditions of that certain Purchase, Warranties and Servicing Agreement (the
"Agreement") dated as of January 1, 2002, 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: [None].
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: [None]. [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.
SUNTRUST MORTGAGE, INC.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
EMC MORTGAGE CORPORATION
By:
-----------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
SCHEDULE I
MORTGAGE LOAN SCHEDULE
EXHIBIT H-11
SERVICING AGREEMENT
WAMU
This SERVICING AGREEMENT (this "AGREEMENT") dated as of April 1, 2005,
is between Washington Mutual Bank, a savings bank organized under the laws of
the United States, in its capacity as servicer (the "SERVICER"), and EMC
Mortgage Corporation, a Delaware corporation, and its successors and assigns, in
its capacity as owner (the "OWNER").
PRELIMINARY STATEMENT
WHEREAS, the Owner owns certain residential, first lien mortgage loans;
WHEREAS, the Servicer holds the servicing rights related to the Mortgage Loans
and has agreed to service such Mortgage Loans for the Owner;
WHEREAS, the Servicer and the Owner desire to prescribe the terms and conditions
regarding the management, servicing, and control of the Mortgage Loans; and
WHEREAS, the Servicer and the Owner intend that, with respect to each Mortgage
Loan serviced hereunder, the terms and conditions of this Agreement replace and
supercede, as of the related Closing Date (as defined herein), all of the terms
and conditions of any other servicing agreement to which the Servicer is bound
that purports to govern the servicing of such Mortgage Loan;
NOW, THEREFORE, in consideration of the mutual agreements and covenants herein
contained and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Servicer and the Owner agree as follows:
DEFINITIONS
Capitalized terms used in this Agreement shall have the following meanings,
unless the context otherwise requires:
ACCEPTABLE SERVICING PROCEDURES: The procedures, including prudent collection
and loan administration procedures, and the standard of care employed by prudent
mortgage servicers that service mortgage loans of the same type as the Mortgage
Loans in the jurisdictions in which the related Mortgaged Properties are
located. Such standard of care shall not be lower than that the Servicer
customarily employs and exercises in servicing and administering similar
mortgage loans for its own account and shall be in full compliance with all
applicable federal, state and local laws, ordinances, rules and regulations.
ACCOUNT: The account or accounts created and maintained pursuant to Section 2.4
of this Agreement.
AGREEMENT: This Servicing Agreement, including all exhibits and schedules
hereto, and all amendments hereof and supplements hereto.
APPLICABLE REQUIREMENTS: With respect to each Mortgage Loan, (i) the terms of
the related Mortgage and Mortgage Note, (ii) the federal, state and local laws,
statutes, rules, regulations, ordinances, standards, requirements,
administrative rulings, orders and processes pertaining to such Mortgage Loan,
including but not limited to those pertaining to the processing, origination and
servicing of the Mortgage Loan, (iii) the requirements of the Owner as set forth
in this Agreement and (iv) Acceptable Servicing Procedures.
ARM LOAN: A Mortgage Loan as to which the related Mortgage Note provides that
the Mortgage Interest Rate may be adjusted periodically.
BIF: The Bank Insurance Fund.
BUSINESS DAY: Any day other than (i) a Saturday or Sunday, or (ii) a day on
which banking or savings and loan institutions are authorized or obligated by
law or executive order to be closed in the State of New York, the State of
Washington or any state in which the Servicer operates.
CERTIFICATION CURE DEADLINE: The date occurring ten (10) days after the date on
which written notice of the Servicer's failure to duly perform its obligations
under Sections 4.4 and 4.5 shall have been given to the Servicer by the Owner,
or if the related Mortgage Loans are subject to securitization and the
registrant (or its agent) has obtained an extension to the Securities and
Exchange Commission filing deadline for the related 10-K, the date occurring
five (5) days prior to the extended filing deadline.
CLOSING DATE: With respect to each Mortgage Loan in a Pool of Mortgage Loans,
the date on which such Mortgage Loan becomes subject to this Agreement, as
specified in the related Confirmation Agreement.
CODE: The Internal Revenue Code of 1986, as amended from time to time, or any
successor statute thereto.
COLLATERAL DOCUMENTS: With respect to any Mortgage Loan, the mortgage loan
documents pertaining to such Mortgage Loan delivered to and held by the
Custodian from time to time in connection with the purchase and sale of such
Mortgage Loan.
COLLATERAL FILE: With respect to any Mortgage Loan, a file pertaining to such
Mortgage Loan that contains each of the related Collateral Documents.
COMPENSATING INTEREST CAP: An amount equal to 1/12 of the sum of:
(i) the aggregate Unpaid Principal Balance of all (A) fixed rate
Mortgage Loans and (B) Hybrid ARM Loans that bear interest at the initial fixed
rate (other than 3/1 Hybrid ARM Loans), multiplied by 0.25%, and
(ii) the aggregate Unpaid Principal Balance of all (A) ARM Loans, (B)
Hybrid ARM Loans that bear interest at an adjustable rate and (C) 3/1 Hybrid ARM
Loans, multiplied by 0.375%.
CONDEMNATION PROCEEDS: All awards or settlements in respect of a taking of all
or part of a Mortgaged Property by exercise of the power of eminent domain or
condemnation.
CONFIRMATION AGREEMENT: An agreement substantially in the form of EXHIBIT F
attached hereto, executed by the Owner and the Servicer, which agreement shall
confirm the addition of a Pool of Mortgage Loans subject to the terms and
conditions of this Agreement.
CREDIT FILE: With respect to any Mortgage Loan, a file pertaining to such
Mortgage Loan which may contain the mortgage loan documents described on EXHIBIT
E attached hereto, which file shall be retained by the Servicer and may be
maintained on microfilm or any other comparable medium.
CUSTODIAN: With respect to any Mortgage Loan, ▇▇▇▇▇ Fargo Bank, N.A., any
successor custodian, or any other custodian designated by the Owner from time to
time.
CUT-OFF DATE: With respect to any Mortgage Loan, the first day of the month in
which the related Closing Date occurs, except as otherwise specified in the
related Confirmation Agreement.
CUT-OFF DATE PRINCIPAL BALANCE: As to each Mortgage Loan, the outstanding
principal balance of such Mortgage Loan as of the close of business on the
related Cut-off Date, after deduction and application of all payments of
principal due on or before such Cut-off Date, whether or not received.
DEFAULTED SERVICER: As defined in Section 6.1.
DETERMINATION DATE: The thirteenth (13th) day of each month (or if such day is
not a Business Day, the next Business Day), commencing in the month following
the end of the calendar month in which the related Closing Date occurs. A
Determination Date is related to a Monthly Remittance Date if such Determination
Date and such Monthly Remittance Date occur in the same calendar month.
DISCLOSURE DOCUMENT: As defined in Section 8.1(d).
DUE DATE: With respect to any Mortgage Loan, the day of the month on which
Monthly Payments on such Mortgage Loan are due, exclusive of any days of grace,
which day shall be the first day of the month unless otherwise specified on the
related Mortgage Loan Schedule.
DUE PERIOD: With respect to any Mortgage Loan, the period beginning on the first
day of any month and ending on the last day of such month.
ELIGIBLE ACCOUNT: An account or accounts maintained with a Qualified Depository.
ESCROW ACCOUNT: The separate account or accounts created and maintained pursuant
to Section 2.6.
ESCROW PAYMENTS: The amounts constituting ground rents, taxes, assessments,
water rates, sewer rents, municipal charges, Primary Mortgage Insurance Policy
premiums, if any, fire and hazard insurance premiums, condominium charges and
other payments required to be escrowed by the Mortgagor with the mortgagee
pursuant to any Mortgage Loan.
EVENT OF DEFAULT: Any one of the conditions or circumstances enumerated in
Section 6.1.
▇▇▇▇▇▇ ▇▇▇: ▇▇▇▇▇▇ ▇▇▇ (formerly known as the Federal National Mortgage
Association) and any successor thereto.
FDIC: The Federal Deposit Insurance Corporation or any successor thereto.
FIDELITY BOND: A fidelity bond to be obtained by the Servicer pursuant to
Section 2.11.
FINAL RECOVERY DETERMINATION: With respect to any defaulted Mortgage Loan or any
REO Property, a determination made by the Servicer that all related Condemnation
Proceeds, Insurance Proceeds, Liquidation Proceeds and other payments or
recoveries that the Servicer, in its reasonable good faith judgment, expects to
be finally recoverable have been so recovered. The Servicer shall maintain
records, prepared by a servicing officer of the Servicer, of each Final Recovery
Determination.
▇▇▇▇▇▇▇ MAC: ▇▇▇▇▇▇▇ Mac (formerly known as The Federal Home Loan Mortgage
Corporation) and any successor fthereto.
GAAP: Generally Accepted Accounting Principles, as promulgated by the Financial
Accounting Standards Board from time to time.
GROSS MARGIN: With respect to any ARM Loan, the fixed percentage amount set
forth in the related Mortgage Note and described in the related Mortgage Loan
Schedule, which amount is added to the Index in accordance with the terms of the
related Mortgage Note to determine on each Interest Rate Adjustment Date the
Mortgage Interest Rate for such Mortgage Loan.
INDEMNIFIED PARTY: As defined in Section 8.1(d).
INDEMNITEE: As defined in Section 4.4(c).
INDEX: With respect to any ARM Loan, the index set forth in each adjustable rate
Mortgage Note, which index is added to the Gross Margin to determine the
Mortgage Interest Rate on each Interest Rate Adjustment Date.
INSURANCE PROCEEDS: Proceeds of any Primary Mortgage Insurance Policy, title
policy, hazard insurance policy or any other insurance policy covering a
Mortgage Loan or the related Mortgaged Property, including any amounts required
to be deposited in the Account pursuant to Section 2.10, 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 Applicable
Requirements.
INTEREST RATE ADJUSTMENT DATE: With respect to any ARM Loan, the date specified
in the related Mortgage Note as the date on which the Mortgage Interest Rate for
the related Mortgage Loan is subject to adjustment.
LATE COLLECTIONS: With respect to any Mortgage Loan, all amounts received during
any Due Period, whether as late payments of Monthly Payments, or as Insurance
Proceeds, Liquidation Proceeds, Condemnation Proceeds or otherwise, which
amounts represent late payments or collections of Monthly Payments due but
delinquent for a previous Due Period and not previously recovered.
LIQUIDATION PROCEEDS: Cash received in connection with (i) the liquidation of a
defaulted Mortgage Loan (whether through the sale or assignment of the Mortgage
Loan, trustee's sale, foreclosure sale or otherwise) or (ii) the sale of the
Mortgaged Property, if the Mortgaged Property is acquired in satisfaction of the
Mortgage.
LOSSES: As defined in Section 5.1(a).
MANAGEMENT ASSERTION: As defined in Section 4.5.
MASTER SERVICER: As defined in Section 8.2(a).
MASTER SERVICING AGREEMENT: As defined in Section 8.2(a).
MATURITY DATE: With respect to each Mortgage Loan, the maturity date of the
related Mortgage Note, as specified therein.
MERS: Mortgage Electronic Registration Systems, Inc., a Delaware corporation,
and any successor thereto.
MERS LOAN: Any Mortgage Loan registered on the MERS(R) System and for which MERS
is listed as the record mortgagee or beneficiary on the related Mortgage or
assignment thereof.
MERS(R) SYSTEM: The system of electronically recording transfers of mortgage
loans maintained by MERS.
MONTHLY ADVANCE: The aggregate of the advances made by the Servicer on any
Monthly Remittance Date pursuant to Section 2.16(a).
MONTHLY PAYMENT: The scheduled monthly payment of principal and interest on a
Mortgage Loan which is payable by a Mortgagor from time to time under the
related Mortgage Note.
MONTHLY REMITTANCE DATE: The eighteenth (18th) day of each month (or if such day
is not a Business Day, the next Business Day) commencing in the month following
the end of the calendar month in which the related Closing Date occurs. A
Determination Date is related to a Monthly Remittance Date if such Determination
Date and such Monthly Remittance Date occur in the same calendar month.
MOODY'S: ▇▇▇▇▇'▇ Investors Service, Inc. or any successor thereto.
MORTGAGE: The mortgage, deed of trust, or other instrument creating a first lien
on or first priority ownership interest in real property, including any riders,
addenda, assumption agreements, or modifications relating thereto.
MORTGAGE INTEREST RATE: With respect to each Mortgage Loan, the annual rate at
which interest accrues on such Mortgage Loan.
MORTGAGE LOAN: An individual mortgage loan subject to this Agreement, each as
identified on the related Mortgage Loan Schedule.
MORTGAGE LOAN SCHEDULE: With respect to the Mortgage Loans, the schedule or
schedules of Mortgage Loans attached hereto as SCHEDULE I, or to any
Confirmation Agreement.
MORTGAGE NOTE: The note or other evidence of the indebtedness of a Mortgagor
secured by a Mortgage, including any riders or addenda thereto.
MORTGAGED PROPERTY: The property securing a Mortgage Note pursuant to the
related Mortgage.
MORTGAGOR: The obligor(s) on a Mortgage Note.
NET RATE: With respect to each Mortgage Loan, the annual rate at which interest
thereon shall be remitted to the Owner (in each case computed on the basis of a
360-day year consisting of twelve 30-day months), which annual rate shall be
equal to the Mortgage Interest Rate less the Servicing Fee Rate.
NONRECOVERABLE ADVANCE: Any portion of any Servicing Advance or Monthly Advance
previously made or proposed to be made in respect of a Mortgage Loan by the
Servicer hereunder that the Servicer determines in its good faith judgment will
not be ultimately recoverable from Late Collections. The determination by the
Servicer that it has made a Nonrecoverable Advance shall be evidenced by an
Officer's Certificate of the Servicer delivered to the Owner and detailing the
reasons for such determination.
OFFICER'S CERTIFICATE: A certificate signed by a Vice President or other
authorized officer and delivered to the Owner as required by this Agreement.
OPINION OF COUNSEL: A written opinion of counsel, who may be an employee of the
Servicer, reasonably acceptable to the Owner.
OTS: The Office of Thrift Supervision, or any successor thereto.
OWNER: EMC Mortgage Corporation, a Delaware corporation, and any successor owner
of any of the Mortgage Loans.
PASS-THROUGH TRANSFER: The sale or transfer of some or all of the Mortgage Loans
by the Owner to a trust to be formed as part of a publicly issued or privately
placed mortgage backed securities transaction.
PERMITTED INVESTMENTS: Any one or more of the following obligations or
securities:
(i) direct obligations of, or obligations fully guaranteed as to
principal and interest by, the United States or any agency or instrumentality
thereof, provided such obligations are backed by the full faith and credit of
the United States;
(ii) repurchase obligations with respect to any security described in
clause (i) above, provided that the unsecured long-term obligations of the party
agreeing to repurchase such obligations are at the time rated by S&P or Moody's
in one of its two highest rating categories;
(iii) federal funds, certificates of deposit, time deposits, and
bankers' acceptances of any bank or trust company incorporated under the laws of
the United States or any state, provided that the long-term debt obligations of
such bank or trust company (or, in the case of the principal bank in a bank
holding company system, the long-term debt obligations of the bank holding
company) at the date of acquisition thereof have been rated by S&P or Moody's in
one of its two highest rating categories; and
(iv) commercial paper of any corporation incorporated under the laws of
the United States or any state thereof that on the date of acquisition has been
rated by S&P or Moody's in its highest short-term rating category.
PERSON: Any individual, corporation, partnership, limited liability company,
joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
POOL OF MORTGAGE LOANS: A pool of Mortgage Loans made subject to this Agreement
pursuant to a Confirmation Agreement.
PORTFOLIO LOANS: As defined in Section 8.3.
PREPAYMENT CHARGE: With respect to any Mortgage Loan, the prepayment premium or
charge, if any, required under the terms of the related Mortgage Note to be paid
in connection with a Principal Prepayment in Full or a Principal Prepayment in
Part, to the extent permitted by applicable law.
PRIMARY MORTGAGE INSURANCE POLICY: With respect to each Mortgage Loan, the
policy of primary mortgage insurance (including all endorsements thereto) issued
with respect to such Mortgage Loan, if any, or any replacement policy.
PRIME: As of any date of determination, the annual interest rate, adjusted
daily, published from time to time in The Wall Street Journal (Western Edition)
as the "PRIME RATE" in the "MONEY RATES" section. In the event that more than
one such rate is specified, "Prime" shall mean the greatest of such rates.
PRINCIPAL PREPAYMENT: Any payment or other recovery of principal in full ( a
"PRINCIPAL PREPAYMENT IN FULL") or in part (a "PRINCIPAL PREPAYMENT IN PART") of
the then-outstanding principal on a Mortgage Loan (other than Condemnation
Proceeds, Insurance Proceeds, and Liquidation Proceeds) that is received in
advance of its scheduled Due Date and 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. The term "Principal Prepayment" shall not
refer to any related Prepayment Charge.
QUALIFIED DEPOSITORY: Any of the following: (i) a depository, the short-term
unsecured debt obligations of which are rated by Moody's or S&P (or a comparable
rating agency) in one of its two highest rating categories, (ii) the corporate
trust department of a national bank, (iii) a depository that fully insures the
Account and the Escrow Account with insurance provided by the FDIC, or (iv) the
Servicer.
REMIC: A "real estate mortgage investment conduit" within the meaning of Section
860D of the Code.
REMIC PROVISIONS: Provisions of the federal income tax law relating to REMICs,
which appear at Section 860G of Subchapter M of Chapter 1 of the Code and
related provisions, and regulations promulgated thereunder, as in effect from
time to time.
REO MANAGEMENT FEE: With respect to each REO Property, an amount equal to
$1,500.
REO PROPERTY: A Mortgaged Property acquired in foreclosure or by deed in lieu of
foreclosure, as described in Section 2.12.
SAIF: The Savings Association Insurance Fund.
S&P: Standard & Poor's Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc., or its successor in interest.
SERVICER: Washington Mutual Bank, a savings bank organized under the laws of the
United States, or its permitted successor in interest, or any successor to the
Servicer under this Agreement appointed as herein provided.
SERVICER'S INFORMATION: As defined in Section 8.1(d).
SERVICING ADVANCES: All customary, reasonable, and necessary "out of pocket"
costs and expenses, including reasonable attorneys' fees and disbursements,
incurred by the Servicer in the performance of its servicing obligations
hereunder, including, without limitation, costs related to (i) the preservation,
restoration, and protection of the Mortgaged Property, (ii) any enforcement or
judicial proceedings, including foreclosures, (iii) the management and
liquidation of the Mortgaged Property if the Mortgaged Property is acquired in
satisfaction of the Mortgage and (iv) Servicer's compliance with the obligations
set forth in Sections 2.2, 2.3, 2.8, 2.10, 2.12 and 2.15 of this Agreement.
SERVICING FEE: With respect to each Mortgage Loan, the amount of the annual fee
payable to the Servicer pursuant to Section 4.3 as compensation for servicing
and administering such Mortgage Loan. Such fee shall, for a period of one full
month, be equal to one-twelfth of the product of (i) the related Servicing Fee
Rate, multiplied by (ii) the outstanding Unpaid Principal Balance of such
Mortgage Loan. Such fee shall be payable monthly and shall be computed on the
basis of the same principal amount and period respecting which any related
interest payment on such Mortgage Loan is computed.
SERVICING FEE RATE: With respect to each Mortgage Loan, the annual rate at which
the Servicing Fee shall be calculated, which annual rate is set forth in the
related Confirmation Agreement. In the event that the Index and Gross Margin of
an ARM Loan are adjusted pursuant to the terms of the related Mortgage Note, the
Servicing Fee Rate for such ARM Loan shall be the annual rate of the Servicing
Fee in effect immediately prior to such adjustment.
TRANSFERRED LOANS: As defined in Section 8.3.
UNPAID PRINCIPAL BALANCE: With respect to each Mortgage Loan, as of any date of
determination, (i) the Cut-off Date Principal Balance, minus (ii) the principal
portion of all payments made by or on behalf of the Mortgagor after the related
Cut-off Date and received by the Owner, plus (iii) in the case of a Mortgage
Loan subject to negative amortization, any capitalized interest.
USAP: As defined in Section 4.5.
WHOLE LOAN TRANSFER: Any sale or transfer of some or all of the Mortgage Loans
by the Owner to a third party, which sale or transfer is not a Pass-Through
Transfer.
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
SECTION 1.1. IDENTIFICATION OF MORTGAGE LOANS; SERVICER TO ACT AS
SERVICER
(a) As of the related Closing Date, the Servicer, as independent
contract servicer, shall service and administer the Mortgage Loans in accordance
with this Agreement and Acceptable Servicing Procedures. Except as otherwise
expressly provided in this Agreement, the Servicer shall have full power and
authority, acting alone, to do any and all things in connection with such
servicing and administration that the Servicer may deem necessary or desirable
and consistent with the terms of this Agreement, including, without limitation,
all action permitted or required to be taken under any related Primary Mortgage
Insurance Policy. In servicing and administering the Mortgage Loans, the
Servicer shall employ Acceptable Servicing Procedures, except that the Servicer
shall employ the procedures set forth in this Agreement whenever the Acceptable
Servicing Procedures conflict with the requirements under this Agreement
(provided that in no event shall the Servicer act in conflict with any
applicable federal, state and local laws, ordinances, rules or regulations). The
Servicer shall at all times act in the best interests of the Owner in performing
hereunder.
(b) The documents comprising the Collateral File and the Credit File
with respect to each Mortgage Loan serviced hereunder and that are delivered to
the Servicer, together with all other documents with respect to each such
Mortgage Loan that are prepared by or that come into the possession of the
Servicer, shall immediately vest in the Owner and shall be held and maintained
in trust by the Servicer at the will of the Owner and in a custodial capacity
only for the sole purpose of servicing or supervising the servicing of the
related Mortgage Loans. The documents comprising each Collateral File and each
Credit File and all related documents that come into the possession of the
Servicer and are so held by the Servicer shall be appropriately marked to
clearly reflect the ownership interest of the Owner in such Collateral File and
Credit File and related documents. The Servicer shall release its custody of any
such documents only in accordance with written instructions from the Owner,
unless such release is required as incidental to the Servicer's servicing of the
Mortgage Loans.
(c) Subject to Section 2.17 of this Agreement, the Servicer may waive,
modify or vary any term of any Mortgage Loan or consent to the postponement of
strict compliance with any such term or in any manner grant indulgence to any
Mortgagor if, in the Servicer's reasonable and prudent determination, such
waiver, modification, variation, postponement or indulgence is in the best
interests of the Owner; provided, however, that the Servicer shall not permit
any modification with respect to any Mortgage Loan that would change the
Mortgage Interest Rate, defer or forgive the payment of any principal or
interest payments, reduce the outstanding principal amount (except for actual
payments of principal) or extend the related Maturity Date (unless the Mortgagor
is in default with respect to the Mortgage Loan or such default is, in the
judgment of the Servicer, imminent and the Servicer has obtained the prior
written consent of the Owner). Without limiting the generality of the foregoing,
the Servicer is hereby authorized and empowered to execute and deliver on behalf
of itself and the Owner all instruments of satisfaction, cancellation, full
release, or partial release or discharge, and all other comparable instruments
with respect to the Mortgage Loans and the Mortgaged Properties. If reasonably
required by the Servicer, the Owner shall furnish the Servicer with any powers
of attorney and other documents necessary or appropriate to enable the Servicer
to carry out its servicing and administrative duties under this Agreement.
(d) As to each ARM Loan, the Servicer shall make periodic Mortgage
Interest Rate and Monthly Payment adjustments, as applicable, and execute and
deliver all appropriate notices regarding the same, in strict compliance with
Applicable Requirements. The Servicer shall establish procedures to monitor the
Index in order to ensure that it uses the appropriate value for the Index in
determining an interest rate change. If the Servicer fails to make a timely and
correct Mortgage Interest Rate adjustment or Monthly Payment adjustment, the
Servicer shall use its own funds to satisfy any shortage in the Mortgagor's
Monthly Payment for so long as such shortage continues. In the event the Index,
as specified in the related Mortgage Note, becomes unavailable for any reason,
the Servicer shall select an alternative index based on comparable information,
in accordance with the terms of the Mortgage Note, and such alternative index
shall thereafter be the Index for such Mortgage Loan. In such event, the
Servicer shall also determine a new Gross Margin. The new Gross Margin shall be
the difference between (x) the average of the original Index for the most recent
three-year period that ends on the last date the original Index was available
plus the Gross Margin on the last date the original Index was available and (y)
the average of the new Index for the most recent three-year period that ends on
that date (or if not available for such three-year period, for such time as it
is available), rounded as provided in the Mortgage Note.
(e) In connection with the servicing and administration of the Mortgage
Loans and consistent with Acceptable Servicing Procedures and this Agreement,
the Servicer shall have full power and authority to execute and deliver or cause
to be executed and delivered on behalf of the Owner such instruments of
assignment or other comparable instruments as the Servicer shall deem
appropriate in order to register any Mortgage Loan on the MERS(R) System or
cause the removal of any Mortgage Loan from registration on the MERS(R) System.
SECTION 1.2. LIQUIDATION OF MORTGAGE LOANS
(a) In the event that any payment due under any Mortgage Loan is not
paid when the same becomes due and payable, or in the event the Mortgagor fails
to perform any other covenant or obligation under the Mortgage Loan and such
failure continues beyond any applicable grace period, the Servicer shall proceed
diligently to collect all payments due and shall take such action, including
commencing foreclosure, as it shall reasonably deem to be in the best interests
of the Owner and in accordance with Acceptable Servicing Procedures. The
Servicer shall use commercially reasonable efforts, consistent with Acceptable
Servicing Procedures, any Primary Mortgage Insurance Policies and the best
interest of Owner, 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 2.1. 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. 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. Servicer shall obtain prior
approval of Owner as to restoration expenses in excess of ten thousand dollars
($10,000). The Servicer shall notify the Owner in writing of the commencement of
foreclosure proceedings and prior to the acceptance or rejection of any offer of
reinstatement. The Servicer shall be responsible for all costs and expenses
incurred by it in any such proceedings or functions; provided, however, that it
shall be entitled to reimbursement thereof from the related property, as
contemplated in Section 2.5.
(b) Notwithstanding the foregoing provisions of this Section 2.2, with
respect to any Mortgage Loan as to which the Servicer has received actual notice
of, or has actual knowledge of, the presence of any toxic or hazardous substance
on the related Mortgaged Property, the Servicer shall neither (i) obtain title
to such Mortgaged Property as a result of or in lieu of foreclosure or
otherwise, (ii) acquire possession of, nor (iii) take any other action with
respect to, such Mortgaged Property if, as a result of any such action, the
Owner would be considered to hold title to, to be a mortgagee-in-possession of,
or to be an owner or operator of such Mortgaged Property within the meaning of
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended from time to time, or any comparable law, unless the Servicer
has either (x) obtained the written consent of the Owner, or (y) previously
determined, based on its reasonable judgment and a prudent report prepared by a
Person who regularly conducts environmental audits using customary industry
standards, that:
(i) such Mortgaged Property is in compliance with applicable
environmental laws or, if not, that it would be in the best economic interest of
the Owner to take such actions as are necessary to bring the Mortgaged Property
into compliance therewith; and
(ii) there are no circumstances present at such Mortgaged Property
relating to the use, management or disposal of any hazardous substances,
hazardous materials, hazardous wastes, or petroleum-based materials for which
investigation, testing, monitoring, containment, clean-up or remediation could
be required under any federal, state or local law or regulation, or that if any
such materials are present for which such action could be required, that it
would be in the best economic interest of the Owner to take such actions with
respect to the affected Mortgaged Property.
The cost of the environmental audit report contemplated by this Section 2.2(b)
shall be advanced by the Servicer as a Servicing Advance, subject to the
Servicer's right to be reimbursed therefor from the Account and the Servicer's
right to make a judgment about whether any such advance would be a
Nonrecoverable Advance.
(c) If the Servicer has (i) determined that it is in the best economic
interest of the Owner to take such actions as are necessary to bring any such
Mortgaged Property into compliance with applicable environmental laws, or to
take such action with respect to the containment, clean-up or remediation of
hazardous substances, hazardous materials, hazardous wastes, or petroleum-based
materials affecting any such Mortgaged Property, or (ii) obtained the written
consent of the Owner, in each case as described above, then the Servicer shall
take such action as it deems to be in the best economic interest of the Owner
(or as otherwise directed by the Owner). The cost of any such compliance,
containment, clean-up or remediation shall be advanced by the Servicer as a
Servicing Advance, subject to the Servicer's right to be reimbursed therefor
from the Account and the Servicer's right to make a judgment about whether any
such advance would be a Nonrecoverable Advance.
SECTION 1.3. COLLECTION OF MORTGAGE LOAN PAYMENTS
Continuously from the related Closing Date until the principal and interest on
all of the Mortgage Loans are paid in full, the Servicer shall proceed
diligently to collect all payments due under each of the Mortgage Loans when the
same shall become due and payable. With respect to those Mortgage Loans, if any,
as to which the Servicer collects Escrow Payments, the Servicer shall ascertain
or estimate annual ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, fire and hazard insurance premiums, condominium charges,
Primary Mortgage Insurance Policy premiums and all other charges that, as
provided in any Mortgage, shall become due and payable, to the end that the
Escrow Payments payable by the Mortgagors shall be sufficient to pay such
charges as and when they become due and payable. The Servicer shall not be
required to institute or join in litigation with respect to collection of any
payment (whether under a Mortgage, Mortgage Note, Primary Mortgage Insurance
Policy or otherwise or against any public or governmental authority with respect
to a taking or condemnation) if in the Servicer's reasonable judgment the
Servicer believes that the costs and expenses relating thereto would be
Nonrecoverable Advances. The Servicer shall be entitled to be reimbursed from
the Account for any costs, expenses or other liabilities incurred by the
Servicer in connection with any such litigation. The Servicer's right to such
reimbursement shall be prior to the Owner's right to such proceeds.
SECTION 1.4. ESTABLISHMENT OF ACCOUNT; DEPOSITS IN ACCOUNT
(a) The Servicer shall establish and maintain one or more Accounts
(collectively, the "ACCOUNT") entitled "Washington Mutual Bank, in trust for EMC
Mortgage Corporation, as Owner, and any successor Owner." The Account shall be
an Eligible Account, established with an institution that is a Qualified
Depository and maintained as a segregated account separate and apart from any of
the Servicer's own funds and general assets. If the Account is established with
an institution other than the Servicer, the Account shall be evidenced by a
letter agreement substantially in the form of EXHIBIT B attached hereto.
(b) The Servicer shall, upon receipt (and in all events by not later
than the end of the second Business Day following receipt thereof), deposit in
the Account and retain therein, the following payments and collections either
received or made by the Servicer subsequent to the related Cut-off Date (other
than payments due on or before such Cut-off Date), or otherwise allocable to a
period subsequent to such Cut-off Date:
(i) the principal portion of all Monthly Payments on the
Mortgage Loans;
(ii) the interest portion of all Monthly Payments on the
Mortgage Loans less the Servicing Fee;
(iii) all Principal Prepayments in Part and Principal
Prepayments in Full;
(iv) all Liquidation Proceeds;
(v) all Insurance Proceeds, other than Insurance Proceeds to
be held in the Escrow Account and applied to the restoration and repair
of the Mortgaged Property or released to the Mortgagor in accordance
with Applicable Requirements;
(vi) all Condemnation Proceeds that are not released to the
Mortgagor in accordance with the Owner's written consent or Applicable
Requirements;
(vii) any amount required to be deposited in the Account
pursuant to Sections 2.4(d), 2.10, 2.12(c), 2.12(e) or 4.2(b);
(viii) [Reserved]; and
(ix) with respect to each Principal Prepayment in Full, an
amount (to be paid by the Servicer out of its own funds without
reimbursement therefor) that, when added to all amounts allocable to
interest received in connection with such Principal Prepayment in Full,
equals one month's interest on the amount of principal so prepaid at
the Net Rate, provided, however, that the aggregate of deposits made by
the Servicer pursuant to this clause (ix) in respect of any Monthly
Remittance Date shall not exceed the Compensating Interest Cap.
(c) The Servicer shall, no later than twenty-four (24) hours prior to
each Monthly Remittance Date, deposit in the Account all Monthly Advances.
(d) The Servicer may cause the funds on deposit from time to time in
the Account to be invested in Permitted Investments, which Permitted Investments
shall mature not later than the Business Day immediately preceding the next
Monthly Remittance Date following the date such funds are invested. All
Permitted Investments shall be made in the name of the Servicer or its nominee.
All income and gain realized from any Permitted Investment shall be for the
benefit of the Servicer and shall be subject to its withdrawal or order from
time to time. The Servicer shall indemnify the Owner for any loss incurred in
respect of any Permitted Investment by such Servicer, and the amount of such
loss shall be deposited in the Account by the Servicer out if its own funds,
without reimbursement therefor, no later than twenty-four (24) hours prior to
the next Monthly Remittance Date following the date of such loss.
SECTION 1.5. PERMITTED WITHDRAWALS FROM THE ACCOUNT
The Servicer may, from time to time, withdraw funds from the Account for the
following purposes:
(i) to make payments and distributions to the Owner in the amounts and
in the manner provided for in Section 3.1, and to pay itself any unpaid
Servicing Fees, unpaid REO Management Fees and other servicing compensation in
accordance with Section 4.3;
(ii) to reimburse itself for any unreimbursed Servicing Advances or
Monthly Advances made with respect to any Mortgage Loan; provided that the
Servicer's right to reimburse itself pursuant to this clause (ii) is limited to
any amounts collected or received by the Servicer with respect to such Mortgage
Loan;
(iii) to pay to itself any interest earned on funds deposited in the
Account;
(iv) to make any payment or reimburse itself for any amount pursuant to
Sections 2.12(c), 2.12(e), 5.1(a) or 5.3;
(v) to reimburse itself for any Monthly Advance or Servicing Advance
previously made that it has determined to be a Nonrecoverable Advance;
(vi) if there shall be amounts deposited in error or there shall be
amounts deposited in the Account not required to be deposited therein, including
the Servicing Fee and other servicing compensation, to withdraw such amount from
the Account any provision herein to the contrary notwithstanding;
(vii) to transfer funds to another Qualified Depository in accordance
with Section 2.9; and
(viii) to clear and terminate the Account upon the termination of this
Agreement in accordance with Article 7.
Section 1.6. Establishment of Escrow Account; Deposits in Escrow
Account; Escrow Analysis
(a) The Servicer shall segregate and hold separate and apart from any
of its own funds and general assets all Escrow Payments collected and received
pursuant to the Mortgage Loans and shall establish and maintain one or more
Escrow Accounts (collectively, the "ESCROW ACCOUNT"), in the form of time
deposit or demand accounts, which may be interest bearing, entitled "Washington
Mutual Bank, in trust for EMC Mortgage Corporation, as Owner, and any successor
Owner, and certain Mortgagors." The Escrow Account shall be an Eligible Account
established with a Qualified Depository. If the Escrow Account is established
with an institution other than the Servicer, the Escrow Account shall be
evidenced by a letter agreement substantially in the form of EXHIBIT C attached
hereto.
(b) The Servicer shall, upon receipt (and in all events by not later
than the end of the second Business Day following receipt thereof, or sooner if
required by applicable law), deposit in the Escrow Account and retain therein:
(i) all Escrow Payments collected on account of the Mortgage Loans for the
purpose of effecting timely payment of escrow items as required under the terms
of this Agreement and (ii) all amounts representing proceeds of any hazard
insurance policy that are to be applied to the restoration or repair of the
related Mortgaged Property. The Servicer shall make withdrawals from the Escrow
Account only in accordance with Section 2.7. The Servicer shall be entitled to
retain any interest earned on funds deposited in the Escrow Account other than
interest on escrowed funds required by law to be paid to the Mortgagor and, to
the extent required by law, the Servicer shall pay interest on escrowed funds to
the Mortgagor without right of reimbursement therefor notwithstanding that the
Escrow Account maintained by the Servicer may not bear interest or that the
interest earned on such escrowed funds is insufficient for such purpose.
Section 1.7. Permitted Withdrawals from the Escrow Account
Withdrawals from the Escrow Account maintained by the Servicer may be made by
the Servicer only (i) to effect timely payments of ground rents, taxes,
assessments, sewer rents, municipal charges, water rates, insurance premiums,
condominium charges, fire and hazard insurance premiums or other items
constituting Escrow Payments for the related Mortgage, (ii) to reimburse the
Servicer for any Servicing Advance made by the Servicer pursuant to Sections 2.8
and 2.10 with respect to a related Mortgage Loan, (iii) to refund to any
Mortgagor any funds found to be in excess of the amounts required under the
terms of the related Mortgage Loan, (iv) for transfer to the Account in
accordance with the terms of this Agreement, (v) for restoration or repair of a
Mortgaged Property, provided the provisions of Section 2.13 have been complied
with, (vi) to pay to the Mortgagor, to the extent required by Applicable
Requirements, interest on the funds deposited in the Escrow Account, (vii) to
pay to itself any interest earned on funds deposited in the Escrow Account (and
not required to be paid to the Mortgagor), (viii) to remove funds inadvertently
placed in the Escrow Account by the Servicer, or (ix) to clear and terminate the
Escrow Account upon the termination of this Agreement, in accordance with
Article 7.
SECTION 1.8. PAYMENT OF TAXES, INSURANCE AND OTHER CHARGES
With respect to each Mortgage Loan, the Servicer shall maintain accurate records
reflecting the status of property taxes, assessments and other charges that are
or may become a lien upon the related Mortgaged Property, the status of Primary
Mortgage Insurance Policy premiums, if any, and the status of fire and hazard
insurance coverage and flood insurance, all as required hereunder. If a Mortgage
Loan requires Escrow Payments, the Servicer 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 in a
manner consistent with Acceptable Servicing Procedures, employing for such
purpose deposits of the Mortgagor in the Escrow Account that shall have been
estimated and accumulated by the Servicer in amounts sufficient for such
purposes, as allowed under the terms of the Mortgage. If a Mortgage Loan does
not require Escrow Payments, or if there are insufficient funds in the related
Escrow Account, the Servicer shall cause all such bills to be paid on a timely
basis and shall from its own funds (if necessary) make a Servicing Advance for
timely payment of all such bills. The Servicer shall monitor the payment status
of such charges (including renewal premiums) by the related Mortgagor. The
Servicer shall effect payment of such charges in a manner consistent with
Acceptable Servicing Procedures and, in all events, prior to the foreclosure of
any lien against the Mortgaged Property resulting from non-payment of such
property taxes, assessments and other charges and prior to the termination of
any such insurance coverage.
SECTION 1.9. TRANSFER OF ACCOUNTS
The Servicer may, from time to time, transfer the Account or the Escrow Account
to a different Qualified Depository. The Servicer shall notify the Owner of any
such transfer within ten (10) Business Days of transfer.
SECTION 1.10. MAINTENANCE OF HAZARD INSURANCE
(a) The Servicer shall cause to be maintained for each Mortgage Loan
serviced by it fire and hazard insurance with extended coverage customary in the
area where the related Mortgaged Property is located, in an amount that is at
least equal to the lesser of (i) 100% of the replacement value of the
improvements securing the Mortgage Loan, or (ii) the Unpaid Principal Balance of
the Mortgage Loan (so long as it equals 80% of the insurable value of the
improvements); provided that in any case such amount shall be sufficient to
prevent either the Mortgagor or the mortgagee from becoming a co-insurer. If the
Mortgaged Property is in an area identified on a flood hazard boundary map or
flood insurance rate map issued by the Federal Emergency Management Agency as
having special flood hazards (and such flood insurance was then available), the
Servicer shall cause to be maintained a flood insurance policy meeting the
requirements of the current guidelines of the Federal Insurance Administration
with a generally acceptable insurance carrier, if such insurance is available.
Such flood insurance shall be in an amount representing coverage not less than
the least of (i) the Unpaid Principal Balance of the Mortgage Loan, (ii) the
full insurable value of the improvements securing such Mortgage Loan and (iii)
the maximum amount of insurance available under the National Flood Insurance Act
of 1968 and the Flood Disaster Protection Act of 1973, each as amended. The
Servicer shall also maintain on each REO Property (x) fire and hazard insurance
with extended coverage in an amount that is at least equal to the maximum
insurable value of the improvements that are a part of such property, (y)
liability insurance and (z) to the extent required and available under the
National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of
1973, each as amended, flood insurance in an amount as provided above. Any
amounts collected by the Servicer under any such policies shall be paid over or
applied by the Servicer in accordance with Applicable Requirements whether (i)
for the restoration or repair of the Mortgaged Property, subject to the related
Mortgage, (ii) for release to the Mortgagor, or (iii) for application in
reduction of the Mortgage Loan, in which event such amounts shall be deposited
in the Account, as provided in Section 2.4. It is understood and agreed that no
earthquake or other additional insurance need be maintained by the Servicer on
any Mortgage Loan or property acquired in respect of a Mortgage Loan, other than
as required under applicable laws and regulations as shall at any time be in
force. All policies required hereunder shall be endorsed with standard mortgagee
clauses with loss payable to the Servicer and shall provide for at least thirty
(30) days prior written notice to the Servicer of any cancellation, reduction in
amount, or material change in coverage. The Servicer shall not interfere with
the Mortgagor's freedom of choice in selecting either the Mortgagor's insurance
carrier or agent upon any policy renewal; provided, however, that upon any such
policy renewal, the Servicer shall accept such insurance policies only from
insurance companies that (A) have a rating of B:III or better in Best's Key
Rating Guide or a financial performance index rating of 6 or better in Best's
Insurance Reports and (B) are licensed to do business in the jurisdiction in
which the related Mortgaged Property is located.
(b) If the Servicer, as servicer for the benefit of the Owner, shall
obtain and maintain a blanket policy that would meet the requirements of ▇▇▇▇▇▇
▇▇▇ if ▇▇▇▇▇▇ ▇▇▇ were the purchaser of the Mortgage Loans, insuring against
loss to the Owner as mortgagee from damage to any or all of the Mortgaged
Properties, then, to the extent such blanket policy (i) provides coverage,
without coinsurance, in an amount equal to the aggregate outstanding Unpaid
Principal Balance of the Mortgage Loans, (ii) otherwise complies with the
requirements of Section 2.10(a) and (iii) contains a deductible not greater than
$10,000, the Servicer shall be deemed conclusively to have satisfied its
obligations under Section 2.10(a); provided, however, that if there shall have
been one or more of such losses the Servicer shall deposit in the Account, as
provided in Section 2.4, out of the Servicer's own funds and without
reimbursement therefor, the difference, if any, between the amount that would
have been payable under a policy complying with Section 2.10(a) and the amount
paid under the blanket policy permitted under this Section 2.10(b). At the
request of the Owner, the Servicer shall cause to be delivered to the Owner a
certified true copy of such policy and a statement from the insurer thereunder
that such policy shall not be terminated or materially modified without thirty
(30) days' prior written notice to the Owner.
SECTION 1.11. FIDELITY BOND; ERRORS AND OMISSIONS INSURANCE
The Servicer shall maintain, at its own expense, with companies that meet the
requirements of ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac, a blanket fidelity bond and an errors
and omissions insurance policy, with broad coverage on all officers, employees,
agents and other persons acting in any capacity that would require such persons
to handle funds, money, documents or papers relating to the Mortgage Loans
(collectively, the "SERVICER EMPLOYEES"). Any such fidelity bond and errors and
omissions insurance shall be in the form of the Mortgage Banker's Blanket Bond
and shall protect and insure the Servicer against losses relating to forgery,
theft, embezzlement, fraud, errors and omissions, failure to maintain any
insurance policies required under this Agreement and negligent acts of Servicer
Employees. Such fidelity bond shall also protect and insure the Servicer against
losses relating to the release or satisfaction of a Mortgage without having
obtained payment in full of the indebtedness secured thereby. No provision of
this Section 2.11 requiring such fidelity bond and errors and omissions
insurance shall diminish or relieve the Servicer from its duties and obligations
as set forth in this Agreement. The terms of any such fidelity bond and errors
and omissions insurance policy shall be at least equal to the corresponding
amounts required by ▇▇▇▇▇▇ Mae in the ▇▇▇▇▇▇ ▇▇▇ Single Family Servicing Guide,
or by ▇▇▇▇▇▇▇ Mac in the ▇▇▇▇▇▇▇ Mac Seller's and Servicer's Guides, each as
amended or restated from time to time. At the request of the Owner, the Servicer
shall cause to be delivered to the Owner a certified true copy of such fidelity
bond and errors and omissions insurance policy and a statement from the surety
and the insurer that such fidelity bond and errors and omissions insurance
policy shall not be terminated or materially modified without thirty (30) days'
prior written notice to the Owner.
SECTION 1.12. TITLE, MANAGEMENT AND DISPOSITION OF REAL ESTATE OWNED
(a) If title to any Mortgaged Property is acquired in foreclosure or by
deed in lieu of foreclosure ("REO PROPERTY"), the deed or certificate of sale
shall be taken in the name of the Owner, or in the name of such Person or
Persons designated by the Owner; provided, however, that (i) the Owner shall not
designate the Servicer as holder without the Servicer's prior written consent
and (ii) such designated Person or Persons shall acknowledge in writing that
such title is to be held as nominee for the Owner. The Servicer shall provide
written notice to the Owner after any REO Property is acquired in foreclosure or
by deed in lieu of foreclosure. Upon vacancy of such REO Property, the Servicer
shall obtain and furnish to the Owner a copy of the full appraisal or full
broker's price opinion of the Mortgaged Property.
(b) The Servicer, shall manage, conserve, protect, and operate each REO
Property solely for the purpose of its prompt disposition and sale. The Servicer
shall either itself, or through an agent selected by the Servicer, manage,
conserve, protect and operate the REO Property in accordance with Acceptable
Servicing Procedures. The Servicer shall attempt to sell the same (and may
temporarily rent the same) on such terms and conditions as the Servicer deems to
be in the best interests of the Owner. No REO Property shall be marketed for
less than the full appraisal value or full broker's price opinion referenced in
Section 2.12.(a), without the prior written consent of Owner. If a REMIC
election has been made with respect to the arrangement under which the related
Mortgage Loan is held and the Servicer has been provided with reasonable advance
notice of such REMIC election, the Servicer shall use commercially reasonable
efforts to dispose of the REO Property as soon as practicable and shall sell
such REO Property, in any event, within three (3) years after title has been
taken to such REO Property (unless the Servicer determines, and gives the Owner
appropriate notice that a longer period is necessary for the orderly liquidation
of such REO Property). The Servicer shall cause each REO Property to be
inspected promptly upon the acquisition of title and shall cause each REO
Property to be inspected at least monthly thereafter or more frequently as
required by the circumstances. The Servicer shall make a written report of each
such inspection. Such reports shall be retained in the Mortgage File and copies
shall be forwarded by the Servicer to the Owner at Owner's request.
(c) The Servicer shall collect all revenues arising from the operation
of REO Property. The Servicer shall deposit, or cause to be deposited, all such
revenues in the Account in accordance with Section 2.4. The Servicer may use all
such revenues and, if any thereof have been deposited in the Account, withdraw
such revenues therefrom as is necessary for the proper operation, management and
maintenance of any REO Property, including, but not limited to, the cost of
maintaining any hazard insurance pursuant to Section 2.10 and the fees of any
managing agent acting on behalf of the Servicer.
(d) The Servicer shall also maintain on each REO Property fire and
hazard insurance with extended coverage, liability insurance, and flood
insurance in accordance with the provisions of Section 2.10.
(e) The proceeds of sale of an REO Property shall be deposited in the
Account in accordance with Section 2.4. The Servicer shall apply the sale
proceeds of any REO Property (i) first to pay the expenses of such sale, (ii)
second to reimburse itself for any related unpaid Servicing Fees, unpaid REO
Management Fees and unreimbursed Servicing Advances and Monthly Advances and
(iii) the balance to be distributed to the Owner. If the sale proceeds have been
deposited in the Account, the Servicer may withdraw from the Account the amounts
necessary to make such payments and reimbursements.
(f) Upon request, with respect to any REO Property, the Servicer shall
furnish to the Owner a statement covering the Servicer's efforts in connection
with the sale of that REO Property and any rental of the REO Property incidental
to the sale thereof for the previous month (together with an operating statement
for such REO Property). Such statement shall be accompanied by such other
information as the Owner shall reasonably request. The Servicer shall maintain
separate accounting for each REO Property.
(g) The Owner hereby constitutes and appoints the Servicer as its true
and lawful attorney-in-fact, with full power and authority to sign, execute,
acknowledge, deliver, file for record and record any instrument on its behalf
and to perform such other act or acts as may be customarily and reasonably
necessary and appropriate to effectuate the transactions contemplated by this
Section 2.12, in each case as fully as the Owner might or could do. The Owner
ratifies and confirms each action that the Servicer, as such attorney-in-fact,
shall lawfully take or cause to be taken by authority hereof. Third parties
without actual notice may rely upon the exercise of the power granted under this
power of attorney, and may be satisfied that this power of attorney shall
continue in full force and effect and has not been revoked unless this Agreement
is terminated as provided herein. If requested by the Servicer, the Owner shall
furnish the Servicer with any instrument or document necessary or appropriate to
evidence or confirm the power of attorney granted in this Section 2.12(g),
including one (1) or more separate instruments or documents in recordable form
for recordation in any jurisdiction in which any Mortgaged Property is located.
(h) Notwithstanding anything to the contrary contained in this
Agreement, the Owner may, at the Owner's sole option, terminate the Servicer as
servicer of any REO Property without payment of any termination fee, provided
that the Servicer shall on the date said termination takes effect be reimbursed
for any unreimbursed advances of the Servicer's funds made pursuant to Section
2.16 and any unreimbursed Servicing Advances and Servicing Fees in each case
relating to the Mortgage Loan underlying such REO Property. In the event of any
such termination, the provisions of Section 9.1 shall apply to said termination
and the transfer of servicing responsibilities with respect to such REO Property
to the Owner or its designees.
SECTION 1.13. APPLICATION OF PROCEEDS OF INSURANCE TO REPAIR OR
RESTORATION
The Servicer shall collect the proceeds from all policies of insurance required
to be maintained pursuant to Section 2.10 with respect to all losses that may
occur. The Servicer may remit such proceeds to the Mortgagor for the restoration
or repair of the related property and shall otherwise take such actions in
connection with such restoration and repair in a manner consistent with
Acceptable Servicing Procedures.
Section 1.14. Inspections
The Servicer shall conduct inspections of the Mortgaged Properties at such times
and in a manner consistent with Acceptable Servicing Procedures and shall
maintain a written report of all such inspections and shall provide a copy to
the Owner upon Owner's request.
Section 1.15. Maintenance of Primary Mortgage Insurance Policies;
Collections Thereunder
(a) The Servicer shall maintain in full force and effect any Primary
Mortgage Insurance Policy covering a Mortgage Loan serviced by the Servicer. The
Servicer shall cause the premium for any such Primary Mortgage Insurance Policy
to be paid on a timely basis and shall from its own funds, if necessary, make a
Servicing Advance to pay the premium on a timely basis. The Servicer shall not
cancel or refuse to renew any such Primary Mortgage Insurance Policy in effect
on the related Closing Date, unless cancellation or non-renewal is required by
applicable law or regulation. The Servicer shall not take any action or fail to
take any action that would result in non-coverage under any applicable Primary
Mortgage Insurance Policy of any loss that, 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
4.1, the Servicer shall promptly notify the insurer under the related Primary
Mortgage Insurance Policy, if any, of such assumption or substitution of
liability in accordance with the terms of such policy and shall take all actions
that may be required by such insurer as a condition to the continuation of
coverage under such Primary Mortgage Insurance Policy. If such Primary Mortgage
Insurance Policy is terminated as a result of such assumption or substitution of
liability, the Servicer shall obtain a replacement Primary Mortgage Insurance
Policy as provided above.
(b) As part of its activities as servicer of the Mortgage Loans, the
Servicer agrees to prepare and present, on behalf of itself and the Owner,
claims under any Primary Mortgage Insurance Policy in a timely fashion in
accordance with the terms thereof and, in this regard, to take such reasonable
action as shall be necessary to permit recovery under any Primary Mortgage
Insurance Policy respecting a defaulted Mortgage Loan.
Section 1.16. Monthly Advances by the Servicer
(a) Not later than the close of business on the Business Day preceding
each Monthly Remittance Date, the Servicer shall deposit in the Account an
amount equal to all payments not previously advanced by the Servicer of
principal and interest at the Net Rate that were (i) due on any Mortgage Loan
during the Due Period that commences in the same month in which such Monthly
Remittance Date occurs, (ii) not received as of the close of business on the
related Determination Date (whether or not deferred) and (iii) not due on or
prior to the related Cut-off Date (the aggregate of all such amounts, the
"MONTHLY ADVANCE"). In lieu of making all or a portion of any Monthly Advance,
the Servicer may cause to be made an appropriate entry in its records relating
to the Account that funds in such account, including but not limited to any
amounts received in respect of scheduled principal and interest on any Mortgage
Loan due after the related Due Period for the related Monthly Remittance Date,
have been used by the Servicer in discharge of its obligation to make any such
Monthly Advance. Any funds so applied shall be replaced by the Servicer by
deposit, in the manner set forth above, in the Account no later than the close
of business on the Business Day immediately preceding the next Monthly
Remittance Date to the extent that funds in the Account on such date are less
than the amounts required to be distributed on such Monthly Remittance Date. The
Servicer shall be entitled to be reimbursed from the Account for all Monthly
Advances of its own funds made pursuant to this Section as provided in Section
2.5.
(b) The obligation of the Servicer to make such Monthly Advances is
mandatory, and, with respect to any Mortgage Loan or REO Property, shall
continue through the earlier of (i) the date on which a Final Recovery
Determination in connection with such Mortgage Loan is made and (ii) the due
date of the last Monthly Payment due prior to the payment in full of such
Mortgage Loan.
(c) Notwithstanding anything herein to the contrary, no Monthly Advance
shall be required to be made hereunder by the Servicer if such Monthly Advance
would, if made, constitute a Nonrecoverable Advance.
Section 1.17. Compliance With REMIC Provisions
If the Servicer has received written notice from the Owner that a REMIC election
has been made with respect to the arrangement under which any Mortgage Loans and
REO Property are held, the Servicer shall not take any action, cause the REMIC
to take any action or fail to take (or fail to cause to be taken) any action
that, under the REMIC Provisions, if taken or not taken, as the case may be,
could (i) endanger the status of the REMIC as a REMIC, or (ii) result in the
imposition of a tax upon the REMIC (including but not limited to the tax on
"prohibited transactions" as defined in Section 860F(a)(2) of the Code and the
tax on "contributions" to a REMIC set forth in Section 860G(d) of the Code)
unless the Servicer has received an Opinion of Counsel (at the expense of the
party seeking to take such action) to the effect that the contemplated action
will not endanger such REMIC status or result in the imposition of any such tax.
Section 1.18. Owner to Cooperate; Release of Collateral Files
If, at any time prior to termination of this Agreement, the Servicer shall
require the use of any Collateral File (or any portion thereof) to perform its
servicing activities as set forth in this Agreement, the Owner, within five (5)
Business Days of the written request of the Servicer in the form of EXHIBIT A
hereto (or within such shorter period as may be necessary for the Servicer to
perform its obligations hereunder in compliance with all Acceptable Servicing
Procedures), shall release or shall cause the Custodian to release such
Collateral File, or portion thereof, to the Servicer. Within five (5) Business
Days of the Servicer's request therefor (or, within such shorter period as may
be necessary for the Servicer to perform obligations hereunder in compliance
with all Acceptable Servicing Procedures), the Owner shall execute and deliver
to the Servicer, in the form supplied to the Owner by the Servicer, any court
pleadings, requests for trustee's sale or other documents reasonably necessary
to perform the servicing activities with respect to any Mortgage Loan, including
the foreclosure or sale in respect of any Mortgaged Property, the commencement
and prosecution of any legal action to enforce the related Mortgage Note and
Mortgage and the defense of any legal action or counterclaim filed against the
Owner or the Servicer. The Servicer may execute and deliver any or all of such
pleadings or documents on behalf of the Owner pursuant to the power of attorney
granted pursuant to Section 2.12(g).
PAYMENTS TO THE OWNER
SECTION 1.19. DISTRIBUTIONS
(a) On each Monthly Remittance Date, the Servicer shall distribute to
the Owner all amounts credited to the Account as of the close of business on the
preceding Determination Date, net of charges against or withdrawals from the
Account pursuant to Section 2.5, plus all Monthly Advances deposited in the
Account prior to such Monthly Remittance Date pursuant to Section 2.4, minus (i)
any amounts attributable to Principal Prepayments received after the last day of
the Due Period immediately preceding the related Monthly Remittance Date and
(ii) any amounts attributable to Monthly Payments collected but due on a Due
Date(s) subsequent to the preceding Determination Date.
(b) All distributions made to the Owner on each Monthly Remittance Date
shall be made to the Owner of record, based on the Mortgage Loans owned and held
by the Owner. All distributions shall be made by wire transfer of immediately
available funds to the account of the Owner at a bank or other entity having
appropriate facilities therefor, if the Owner shall have so notified the
Servicer, or by check mailed to the address of the Owner. Distributions on each
Monthly Remittance Date may be made by more than one (1) wire transfer or check,
as the case may be.
(c) With respect to any remittance received by the Owner on or after
the second Business Day following the Business Day on which such payment was
due, the Owner shall send written notice thereof to the Servicer. The Servicer
shall pay to the Owner interest on any such late payment at an annual rate equal
to Prime plus two percentage points, but in no event greater than the maximum
amount permitted by applicable law. Such interest shall be paid by the Servicer
to the Owner on the date such late payment is made and shall cover the period
commencing with the day following such second Business Day and ending with the
Business Day on which such payment is made, both inclusive. The payment by the
Servicer of any such interest, or the failure of the Owner to notify the
Servicer of such interest, shall not be deemed an extension of time for payment
or a waiver of any Event of Default by the Servicer.
SECTION 1.20. REPORTS
(a) On or before the 10th day of each month starting in the month of
the first related Monthly Remittance Date, or if such day is not a Business Day,
the next Business Day, the Servicer shall provide to the Owner or its designee
an electronically transmitted data file, with respect to the Due Period
immediately preceding such Monthly Remittance Date, the data set forth below on
an individual loan basis:
(i) mortgage loan number;
(ii) interest rate;
(iii) pending rate;
(iv) scheduled principal and interest payment;
(v) scheduled principal;
(vi) gross interest;
(vii) curtailment collected;
(viii) curtailment adjustment;
(ix) PIF principal;
(x) PIF interest difference;
(xi) ARM Index;
(xii) pending Index;
(xiii) ending scheduled balance;
(xiv) investor loan number;
(xv) Servicing Fee Rate;
(xvi) due date;
(xvii) yield rate;
(xviii) beginning balance;
(xix) ending balance;
(xx) beginning scheduled balance;
(xxi) principal collected;
(xxii) scheduled net interest;
(xxiii) scheduled buydown;
(xxiv) Servicing Fee collected; and
(xxv) remittance amount.
The Servicer may submit the foregoing information in more than one (1) report.
Requests for additional data regarding the Mortgage Loans or alternative means
for delivering such reports shall be accommodated at the discretion of the
Servicer and at the Owner's expense.
(b) Upon reasonable advance notice in writing, the Servicer shall
provide to any Owner that is a savings and loan association, a bank, an
insurance company or other regulated or supervised entity reports and access to
information and documentation regarding the Mortgage Loans and the transactions
contemplated hereby sufficient to permit the Owner to comply with the applicable
regulations of relevant regulatory or supervisory authorities with respect to
its investment in the Mortgage Loans and Owner's internal and third-party audit
requirements.
(c) The Servicer shall prepare and file any and all information
statements or other filings required to be delivered to any governmental taxing
authority or to Owner pursuant to any applicable law with respect to the
Mortgage Loans and the transactions contemplated hereby. In addition, the
Servicer shall provide Owner with such information concerning the Mortgage Loans
as is necessary for Owner to prepare its federal income tax return as Owner may
reasonably request from time to time. In addition, not more than 120 days after
the end of each calendar year, the Servicer shall furnish to each Person who was
an Owner at any time during such calendar year an annual statement in accordance
with the requirement of applicable federal income tax law as to the aggregate of
remittances for the applicable portion of such year.
SECTION 1.21. DELINQUENCY AND FORECLOSURE STATEMENTS
(i) The Servicer shall provide a monthly statement of
delinquents and a delinquency report on all Mortgage Loans more than
thirty (30) days delinquent. The Servicer shall also provide a monthly
statement regarding foreclosure status and status of REO Property
containing such information as mutually agreed upon by the Owner and
the Seller.
GENERAL SERVICING PROCEDURE; COVENANTS;
REPRESENTATIONS AND WARRANTIES
SECTION 1.22. ASSUMPTION AGREEMENTS
(a) The Servicer shall use its best efforts to enforce any
"due-on-sale" provision contained in any Mortgage or Mortgage Note and to deny
assumption by the person to whom the Mortgaged Property has been or is about to
be sold, whether by absolute conveyance or by contract of sale and whether or
not the Mortgagor remains liable on the Mortgage and the Mortgage Note, provided
that in accordance with the terms of the Mortgage Note, the Servicer may permit
an assumption (i) if the Servicer reasonably believes it is unable under
Applicable Requirements to enforce such "due-on-sale" clause, or (ii) if the
enforcement of such rights would impair or threaten to impair any recovery under
the related Primary Mortgage Insurance Policy, if any. In connection with any
such assumption, the related Mortgage Interest Rate, the Unpaid Principal
Balance and the term of the Mortgage Loan may not be changed. If an assumption
is allowed pursuant to this Section 4.1(a), the Servicer is authorized, at the
Servicer's discretion, to prepare a substitution of liability agreement to be
entered into by the Owner and the purchaser of the Mortgaged Property pursuant
to which the original Mortgagor is released from liability and the purchaser of
the Mortgaged Property is substituted as Mortgagor and becomes liable under the
Mortgage Note. Any such substitution of liability agreement shall be in lieu of
an assumption agreement. If an assumption fee is collected by the Servicer for
entering into an assumption agreement the entire amount of such fee may be
retained by the Servicer as additional servicing compensation.
(b) The Servicer shall follow Acceptable Servicing Procedures with
respect to any such assumption or substitution of liability (taking into account
the Servicer's then current underwriting guidelines applicable to mortgage loans
of the same type as the related Mortgage Loan). The Servicer shall notify the
Owner that any such substitution of liability or assumption agreement has been
completed by forwarding to the Owner a copy of any such substitution of
liability or assumption agreement, which document shall be added to the related
Collateral File and shall for all purposes be considered a part of such
Collateral File to the same extent as all other documents and instruments
constituting a part thereof.
SECTION 1.23. SATISFACTION OF MORTGAGES AND RELEASE OF COLLATERAL FILES
(a) Upon the payment in full of any Mortgage Loan or the receipt by the
Servicer of a notification that payment in full will be escrowed in a manner
customary for such purposes, the Servicer shall prepare the appropriate
documents and instruments required to satisfy or release the lien of the
Mortgage in accordance with applicable state law requirements. The Servicer,
promptly and within the applicable legal deadlines appropriate to process the
satisfaction or release, shall notify the Owner of such event.
(b) The Servicer shall not grant a satisfaction or release of a
Mortgage without having obtained payment in full of the indebtedness secured by
the Mortgage. In the event the Servicer grants a satisfaction or release of a
Mortgage without having obtained payment in full of the indebtedness secured by
the Mortgage, the Servicer, upon becoming aware of the foregoing, shall remit to
the Owner the Unpaid Principal Balance of the related Mortgage Loan plus accrued
and unpaid interest by deposit thereof in the Account pursuant to Section 2.4.
The Owner shall assign the related Mortgage and endorse the related Mortgage
Note to the Servicer and shall do all things necessary to transfer ownership of
the Mortgage Loan to the Servicer. The Servicer shall maintain the Fidelity Bond
as provided for in Section 2.11 protecting and insuring the Servicer against,
losses sustained with respect to any Mortgage Loan satisfied or released other
than in accordance with the procedures set forth herein.
(c) The Owner shall, within five (5) Business Days following receipt of
any request from the Servicer (or within such shorter period as is necessary for
the Servicer to perform its obligations hereunder in compliance with all
Acceptable Servicing Procedures) deliver or cause to be delivered to the
Servicer the Collateral File (or any portion thereof) required by the Servicer
to process any satisfaction or release of any Mortgage pursuant to this Section
4.2. In addition, if any Mortgage Loan has been paid in full and the Owner has
recorded the related Assignment of Mortgage designating the Owner as the holder
of record of the Mortgage, the Servicer shall prepare and deliver to the Owner,
together with a request for execution, the documents and instruments necessary
to satisfy or release the lien of the Mortgage. The Owner shall, within five (5)
Business Days following its receipt of any such request, send to the Servicer
the fully-executed documents that were prepared and requested by the Servicer.
In the event that applicable state law requires that a satisfaction or release
be recorded within a shorter time period than the foregoing procedure permits,
the Servicer shall advise the Owner accordingly and shall use commercially
reasonable efforts to ensure that the lien of the Mortgage is released or
satisfied in accordance with applicable state law requirements, and the Owner
shall assist therewith by, to the extent reasonably practicable, returning to
the Servicer the required portion of the Collateral File and, if applicable, the
executed satisfaction and release documents and instruments within the time
periods reasonably specified by the Servicer.
(d) If a Mortgage Loan that has been paid in full is a MERS Loan, the
Servicer may cause the removal of such Mortgage Loan from registration on the
MERS(R) System and execute and deliver, on behalf of the Owner, any and all
related instruments of satisfaction or release. No expense incurred in
connection with the delivery of any instrument of satisfaction or deed or
reconveyance shall be chargeable to the Account or the Owner.
SECTION 1.24. SERVICING COMPENSATION
The Servicer shall be entitled to pay itself a Servicing Fee for each Mortgage
Loan serviced hereunder. The obligation of the Owner to pay such Servicing Fee
is limited to, and payable solely from, the interest portion of the Monthly
Payments and Late Collections collected by the Servicer with respect to the
related Mortgage Loan. Additional servicing compensation in the form of
non-sufficient funds check fees, assumption fees, conversion fees, other related
administrative fees, late payment charges, Prepayment Charges and other similar
types of ancillary fees and charges that are actually received by the Servicer
may be retained by the Servicer to the extent not required to be deposited into
the Account pursuant to the terms of this Agreement. In addition to the
Servicing Fee payable hereunder, the Servicer shall be entitled to pay itself an
REO Management Fee for each REO Property managed by the Servicer or its agent.
The Servicer shall be required to pay all expenses incurred by it in connection
with its servicing activities hereunder and shall not be entitled to
reimbursement therefor except as specifically provided for in this Agreement.
Any Late Collections shall be applied by the Servicer in the following order of
priority: (i) first to pay the expenses incurred in connection with collection
of such Late Collections, (ii) second to reimburse itself for any related unpaid
Servicing Fees, unpaid REO Management Fees and unreimbursed Servicing Advances
and Monthly Advances and (iii) the balance to be distributed to the Owner.
SECTION 1.25. STATEMENTS AS TO COMPLIANCE
(a) Not later than March 15 of each year (or if such day is not a
Business Day, the next succeeding Business Day), the Servicer will deliver to
the Owner and, with respect to any Mortgage Loans subject to a Pass-Through
Transfer, each other Person entitled to receive servicing reports provided
pursuant to Section 3.2(a) an Officer's Certificate for the prior calendar year,
beginning with the calendar year ending December 31, 2005, stating (i) a review
of the activities of the Servicer during the preceding year and of performance
under this Agreement has been made under such officer's supervision, and (ii) to
the best of such officer's knowledge, based on such review, the Servicer has
fulfilled all of its obligations under this Agreement throughout such year or,
if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officer and the nature and status
thereof.
(b) Not later than March 15 of each year (or if such day is not a
Business Day, the next succeeding Business Day), with respect to any Mortgage
Loans subject to a Pass-Through Transfer, the Servicer will deliver to the Owner
and each other Person entitled to receive servicing reports provided pursuant to
Section 3.2(a) an Officer's Certificate for the prior calendar year, beginning
with the calendar year ending December 31, 2005, in substantially the form of
EXHIBIT D to this Agreement.
(c) The Servicer agrees to indemnify and hold harmless each of the
Owner, each other Person entitled to receive servicing reports provided pursuant
to Section 3.2(a), each Person, if any, who "controls" the Owner or such other
Person within the meaning of the Securities Act of 1933, as amended, and their
respective officers and directors against any and all losses, penalties, fines,
forfeitures, legal fees and related costs, judgments and any other costs, fees
and expenses that such Person may sustain arising out of third party claims
based on (i) the failure of the Servicer to deliver or cause to be delivered
when required any Officer's Certificate required pursuant to Section 4.4(a) or
Section 4.4(b), or the accountants' statement required pursuant to Section 4.5,
or (ii) any material misstatement or omission in any certification pursuant to
Section 302(a) of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and Rules 13a-14 and 15d-14
promulgated by the Securities and Exchange Commission thereunder made in
reliance on any material misstatement or omission contained in any Officer's
Certificate provided pursuant to Section 4.4(a) or Section 4.4(b). If the
indemnification provided for herein is unavailable or insufficient to hold
harmless any person indemnified pursuant to this Section 4.4(c) ("INDEMNITEE"),
then the Servicer agrees that it shall contribute to the amount paid or payable
by the Indemnitee as a result of the losses, claims, damages or liabilities of
the Indemnitee arising out of clause (i) or (ii) of the preceding sentence in
such proportion as is appropriate to reflect the relative fault of the
Indemnitee on the one hand and the Servicer on the other.
(d) For purposes of paragraph (c), "third party claims" shall include
claims brought against an Indemnitee by any agent or affiliate of such
Indemnitee where such claims arise out of, or are based on, (A) the failure of
the Servicer to deliver or cause to be delivered when required any Officer's
Certificate required pursuant to paragraphs (a) and (b) of this Section 4.4 or
(B) any material misstatement or omission in any certification pursuant to
Section 302(a) of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and Rules 13a-14 and 15d-14
promulgated by the Securities and Exchange Commission thereunder made in
reliance on any material misstatement or omission contained in any Officer's
Certificate provided pursuant to paragraphs (a) or (b) of this Section 4.4.
SECTION 1.26. ANNUAL INDEPENDENT PUBLIC ACCOUNTANTS' SERVICING REPORT
Not later than March 15 of each year (or if such day is not a Business Day, the
next succeeding Business Day), the Servicer will, at its expense, cause a firm
of independent public accountants that is a member of the American Institute of
Certified Public Accountants to furnish to the Owner and, with respect to any
Mortgage Loans subject to a Pass-Through Transfer, each other Person entitled to
receive servicing reports provided pursuant to Section 3.2(a), a statement to
the effect that, based on an examination conducted by such firm in compliance
with the Uniform Single Attestation Program for Mortgage Bankers ("USAP"), the
assertion of management (the "MANAGEMENT ASSERTION") of the Servicer regarding
compliance with the minimum servicing standards identified in the USAP is fairly
stated in all material respects, 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 or such Management Assertion.
SECTION 1.27. OWNER'S RIGHT TO EXAMINE SERVICER RECORDS, ETC.
(a) The Owner shall have the right, at its expense, to (i) examine and
audit the Servicer's books of account, records, reports and other papers
relating to (x) the performance by the Servicer of its obligations and duties
under this Agreement, or (y) the Mortgage Loans, (ii) make copies and extracts
therefrom and (iii) discuss the affairs, finances, and accounts of the Servicer
relating to such performance with the Servicer's officers and employees, all at
such times and places, and with such frequency, as may be reasonably requested.
(b) The Servicer shall provide to the Owner and any supervisory agents
or examiners representing a state or federal governmental agency having
jurisdiction over the Owner, including without limitation the OTS, the FDIC and
other similar entities, access to any documentation regarding the Mortgage Loans
in the possession of the Servicer that is required by any applicable
regulations. Such access shall be afforded without charge, upon reasonable
request, during normal business hours, at the offices of the Servicer and in
accordance with any applicable regulations.
SECTION 1.28. COOPERATION
The Servicer and the Owner shall cooperate fully with one another and
their respective counsel and other representatives and advisors in connection
with the steps required to be taken as part of their respective obligations
under this Agreement.
SECTION 1.29. CONSENTS AND APPROVALS
The Servicer shall timely obtain, at its sole cost and expense, the
consents and approvals required by law or pursuant to contract to consummate the
transactions contemplated hereby. All such consents shall be obtained without
any cost or expense to the Owner and shall be obtained without any adverse
modification in the terms of any of the agreements relating to the Mortgage
Loans or the imposition of any burdensome provisions or conditions on the Owner.
THE SERVICER
SECTION 1.30. INDEMNIFICATION; THIRD PARTY CLAIMS
(a) (i) The Servicer agrees to indemnify and hold harmless the Owner
against any and all losses, penalties, fines, forfeitures, legal fees and
related costs, judgments and any other costs, fees and expenses ("Losses")
resulting from the failure of the Servicer to service the Mortgage Loans in
compliance with the terms of this Agreement; provided, however, the Servicer
shall not be liable hereunder with respect to (A) any action or inaction
resulting from the written direction or consent of the Owner, (B) any action or
inaction resulting from the Owner's failure to cause any Collateral File (or
portion thereof) to be released to the Servicer pursuant to Sections 2.18 or
4.2(c), or (C) any action or inaction resulting from the Owner's failure to
comply with Section 5.1(b) or Section 5.6, or (D) any indirect, special or
consequential damages, losses, costs or expenses incurred by Owner; provided,
further, that with respect to Losses related to claims other than third party
claims, the Servicer shall only be liable to the Owner for the fees and expenses
of the Owner's legal counsel to the extent that such fees and expenses are
required to be reimbursed pursuant to Section 9.14 hereof. (ii) The Servicer
shall notify the Owner if a claim is made by a third party with respect to this
Agreement or the Mortgage Loans that the Servicer determines in its good faith
judgment will materially affect the Owner's interest in such Mortgage Loans. The
Servicer shall assume (with the written consent of the Owner) the defense of any
such claim and, subject to clause (iii) of this Section 5.1, pay all reasonable
expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy any judgment or decree that may be entered against the
Servicer or the Owner in respect of such claim. The Servicer shall follow any
written instructions received from the Owner in connection with any such claim.
The Servicer shall have the right to reimburse itself from the Account for all
expenses, advances and liabilities incurred by the Servicer in respect of any
such claim (whether or not the Servicer has assumed the defense thereof), except
when the claim (x) is related to the Servicer's obligations to indemnify the
Owner pursuant hereto, (y) results from the failure of the Servicer to service
the Mortgage Loans in compliance with the terms of this Agreement, or (z)
results from the Servicer's willful misconduct, bad faith or negligence in
performing its duties under this Agreement. (iii) If the Owner receives service
of a summons or other first legal process, the Servicer shall not be liable for
any costs or expenses pursuant to the indemnity in this Section 5.1 unless the
Owner provides written notice to the Servicer that describes the nature of the
claim within a reasonable time after service of such summons or other first
legal process upon the Owner; provided, however, that the Owner's failure to
notify the Servicer pursuant to this paragraph shall not relieve the Servicer
from any liability that the Servicer may have to the Owner otherwise than on
account of this indemnity. The Servicer shall not be required to indemnify any
person for any settlement of any claim effected without the Servicer's consent,
which consent shall not be unreasonably withheld.
(b) With respect to any Mortgage Loan, if the Owner records or causes
to be recorded the related Assignment of Mortgage designating the Owner as the
holder of record of the Mortgage in the appropriate public recording office of
the jurisdiction in which the related Mortgaged Property is located, and the
Owner, in its capacity as the holder of record, receives written notice of any
action with respect to the related Mortgage or Mortgaged Property, the Owner
shall promptly send a copy of such notice to the Servicer in accordance with
Section 9.8. The Servicer shall have no liability to the Owner for claims,
losses, penalties, fines, forfeitures, legal fees and related costs, judgments,
or any other costs or expenses, that result from the Owner's failure to comply
with the provisions set forth in this paragraph.
SECTION 1.31. SERVICER COVENANTS; MERGER OR CONSOLIDATION OF THE
SERVICER
(a) The Servicer covenants that, subject to Section 5.2(b), it shall
keep in full force and effect its existence, rights and franchises as a
corporation and its status as a ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac approved servicer in
good standing 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.
(b) Any Person into which the Servicer may be merged or consolidated,
or any Person resulting from any merger, conversion or consolidation to which
the Servicer shall be a party, or any Person succeeding to all, or substantially
all, of the business or assets of the Servicer (whether or not related to loan
servicing), shall be the successor of the Servicer 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 Servicer shall not be a party to any such merger,
consolidation or conversion, or sell or otherwise dispose of all, or
substantially all, of its business or assets, unless the successor or surviving
Person shall be an institution that is a ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac approved
servicer in good standing and a member of MERS in good standing. In addition,
the successor or surviving Person shall be an institution (i) having a GAAP net
worth of not less than $25,000,000 and (ii) the deposits of which are insured by
the FDIC, SAIF and/or BIF, or which is a HUD-approved mortgagee whose primary
business is in origination and servicing of first lien mortgage loans.
SECTION 1.32. LIMITATION ON LIABILITY OF THE SERVICER AND OTHERS
The Servicer and the directors, officers, employees or agents of the
Servicer shall not be under any liability to the Owner (i) for any action taken,
or for refraining from the taking of any action, in good faith pursuant to this
Agreement, (ii) for errors in judgment made in good faith, (iii) for any action
or inaction in accordance with the written direction or consent of the Owner,
(iv) for any action or inaction resulting from the Owner's failure to cause any
Collateral File (or portion thereof) to be released to the Servicer pursuant to
Sections 2.18 or 4.2(c), or (v) for any action or inaction resulting from the
Owner's failure to comply with Section 5.1(b) or Section 5.6; provided, however,
this provision shall not protect the Servicer against any breach of warranties
or representations made herein, any failure to perform its obligations in
accordance with any standard of care set forth in this Agreement (unless in
accordance with the written direction or consent of the Owner) or any liability
that would otherwise be imposed by reason of willful misconduct, bad faith or
negligence in the performance of duties. The Servicer and any officer, employee
or agent of the Servicer may rely in good faith on any document of any kind that
appears, on its face, to be properly executed and submitted by any Person
respecting any matters arising hereunder. Subject to Section 5.1(a), the
Servicer shall not be under any obligation to appear in, prosecute or defend any
legal action that is not incidental to its duties under this Agreement and that
may result in any expense or liability to the Servicer; provided, however, that
the Servicer may, with the written consent of the Owner, undertake any such
action that it may deem necessary or desirable with respect to this Agreement
and the rights, duties, and the interests of the parties hereto. In such event,
the legal expenses and costs of such action and any liability resulting
therefrom shall be expenses, costs, and liabilities for which the Owner shall be
liable and the Servicer shall be entitled to be reimbursed therefor from the
Account, unless any such costs or liabilities shall result from the negligence,
bad faith or willful misfeasance of the Servicer in performing such action.
SECTION 1.33. SERVICER NOT TO RESIGN
The Servicer shall not resign from the obligations and duties hereby imposed on
it except upon the determination that such Servicer's duties hereunder are no
longer permissible under Applicable Requirements and such incapacity cannot be
cured by such Servicer. Any such determination permitting the resignation of the
Servicer shall be evidenced by an Opinion of Counsel to such effect delivered to
the Owner. No such resignation shall become effective until a successor that
satisfies the requirements set forth in Section 9.1 has assumed the Servicer's
responsibilities and obligations hereunder in accordance with such Section.
SECTION 1.34. TRANSFER OF SERVICING
The Servicer acknowledges that the Owner has entered into this Agreement in
reliance upon the adequacy of the Servicer's servicing facilities, plan,
personnel, records and procedures, its integrity, reputation and financial
standing and the continuance thereof. Without in any way limiting the generality
of this Section 5.5, the Servicer shall not either assign this Agreement or any
of the servicing rights or obligations hereunder except (i) in connection with a
merger or consolidation permitted under Section 5.2(b), or (ii) with the prior
written consent of the Owner, which consent shall not be unreasonably withheld
or delayed.
SECTION 1.35. TRANSFER OF MORTGAGE LOANS
(a) The Owner shall have the right, without the consent of the
Servicer, to assign its interest under this Agreement with respect to any
Mortgage Loans; provided, however, that (i) the Owner shall give the Servicer
written notice ten (10) days prior to any such assignment of its interest under
this Agreement and (ii) in connection with any Pass-Through Transfer or Whole
Loan Transfer, the Owner shall comply with the provisions of Section 8.1(a)
hereof. The Owner shall also have the right to designate any Person to exercise
the rights of Owner hereunder to the extent provided in Section 8.2 of this
Agreement.
(b) The Servicer shall keep books and records in which, subject to such
reasonable regulations as it may prescribe, the Servicer shall note transfers of
Mortgage Loans. For the purposes of this Agreement, the Servicer shall be under
no obligation to deal with any Person with respect to this Agreement or any
Mortgage Loan unless the books and records show such person as the owner of such
Mortgage Loan. Upon receipt of a written notice from the Owner of any assignment
of any Mortgage Loan, the Servicer shall ▇▇▇▇ its books and records to reflect
the ownership of such Mortgage Loan by such assignee. By executing an assignment
and assumption agreement reasonably acceptable to the Servicer, the assignee
shall accede to the rights and obligations hereunder of the Owner with respect
to such Mortgage Loans and the previous Owner shall be released from its
obligations hereunder to the extent such obligations relate to Mortgage Loans
sold by the Owner and arise after the date of such sale.
Section 1.36. Representations and Warranties of the Servicer
The Servicer hereby represents and warrants to the Owner as of the related
Closing Date as follows:
(a) The Servicer is a federally chartered savings bank, duly organized,
validly existing and in good standing under the laws of the United States and
has all licenses necessary to carry on its business as now being conducted and
is licensed, qualified and in good standing in the states where the Mortgaged
Properties are located, if the laws of such states require licensing or
qualification in order to conduct business of the type conducted by the Servicer
and to the extent necessary to ensure the servicing of each Mortgage Loan in
accordance with this Agreement. The Servicer has the corporate power and
authority to enter into, execute and deliver this Agreement and all documents
and instruments executed and delivered pursuant hereto and to perform its
obligations in accordance therewith. The execution, delivery and performance of
this Agreement by the Servicer and the consummation of the transactions
contemplated hereby have been duly and validly authorized. This Agreement
evidences the valid, binding and enforceable obligations of the Servicer,
subject as to enforcement, (i) to bankruptcy, insolvency, receivership,
conservatorship, reorganization, arrangement, moratorium and other laws of
general applicability relating to or affecting creditors' rights and (ii) to
general principles of equity, whether such enforcement is considered in a
proceeding in equity or at law. All requisite corporate action has been taken by
the Servicer to make this Agreement valid and binding upon the Servicer in
accordance with its terms.
(b) No consent, approval, authorization, or order of any court or
governmental agency or body relating to the transactions contemplated by this
Agreement is required as to the Servicer or, if required, such consent,
approval, authorization, or order has been obtained.
(c) The consummation of the transactions contemplated by this
Agreement, including without limitation the fulfillment of, or compliance with,
the terms and conditions of this Agreement, are in the ordinary course of
business of the Servicer and shall not (i) result in the breach of any term or
provision of the charter or by-laws of the Servicer, (ii) result in the breach
of any term or provision of, or conflict with or constitute a default under, or
result in the acceleration of any obligation under, any material agreement,
indenture, loan or credit agreement, or other instrument to which the Servicer
or its property is subject, or (iii) result in the violation of any law, rule,
regulation, order, judgment, or decree to which the Servicer or its property is
subject.
(d) There is no action, suit, proceeding or investigation pending or,
to the best of the Servicer's knowledge, threatened against the Servicer that,
either in any one instance or in the aggregate, is likely (in the Servicer's
judgment), to result in any material impairment of the right or ability of the
Servicer to carry on its business substantially as now conducted, or that would
adversely affect the validity of this Agreement, or of any action taken or to be
taken in connection with the obligations of the Servicer contemplated herein, or
that would be likely to materially impair the ability of the Servicer to perform
its obligations hereunder.
(e) The Servicer is an approved servicer of mortgage loans for ▇▇▇▇▇▇
Mae in good standing. No event has occurred, including but not limited to a
change in insurance coverage, that would make the Servicer unable to comply with
▇▇▇▇▇▇ ▇▇▇ eligibility requirements.
(f) The Servicer is a member of MERS in good standing. The Servicer
shall comply in all material respects with the rules and procedures of MERS in
connection with the servicing of each MERS Loan for as long as each such
Mortgage Loan is registered on the MERS(R) System.
DEFAULT
SECTION 1.37. EVENTS OF DEFAULT
In case one or more of the following Events of Default by the Servicer shall
occur and be continuing:
(i) any failure by the Servicer to remit to the Owner when due any
payment required to be made under the terms of this Agreement, which failure
continues unremedied for a period of three (3) Business Days after the date on
which written notice of such failure, requiring the same to be remedied, shall
have been received by the Servicer, from the Owner; or
(ii) any failure by the Servicer to duly observe or perform, in any
material respect, any other covenant, obligation or agreement of the Servicer as
set forth in this Agreement, which failure continues unremedied for a period of
forty-five (45) (or, in the case of any failure to pay the premium for any
insurance policy that is required to be maintained hereunder, 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 Servicer by the Owner; or
(iii) a decree or order of a court or agency or supervisory authority
having jurisdiction for the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshaling of assets and
liabilities, or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Servicer and such decree or order
shall have remained in force, undischarged or unstayed for a period of sixty
(60) days; or
(iv) the Servicer shall consent to the appointment of a conservator,
receiver or liquidator in any insolvency, readjustment of debt, marshaling of
assets and liabilities or similar proceedings of or relating to the Servicer or
relating to all, or substantially all, of the Servicer's property; or
(v) the Servicer shall admit in writing its inability to pay its debts
as they become due, file a petition to take advantage of any applicable
insolvency or reorganization statute, make an assignment for the benefit of its
creditors, or voluntarily suspend payment of its obligations; or
(vi) the Servicer shall fail to be an approved servicer of mortgage
loans for ▇▇▇▇▇▇ Mae in good standing; or
(vii) the Servicer shall fail to be in compliance with the "doing
business" or licensing laws of any jurisdiction where a Mortgaged Property is
located; or
(viii) the Servicer shall attempt to assign this Agreement or the
servicing responsibilities hereunder in contravention of this Agreement; or
(ix) failure by the Servicer to duly perform within the required time
period, its obligations under Sections 4.4 and 4.5, which failure continues
unremedied after the Certification Cure Deadline;
then, and in each and every such case, so long as such Event of Default
shall not have been remedied, the Owner, by notice in writing to the Servicer
(in each such instance, the "DEFAULTED SERVICER"), may, in addition to whatever
rights the Owner may have at law or equity, including injunctive relief and
specific performance, commence termination of all of the rights and obligations
of the Defaulted Servicer under this Agreement pursuant to Section 7.2, and may
exercise any and all other remedies available at law or at equity. Upon receipt
by the Defaulted Servicer of such written notice from the Owner stating the
intent to terminate the Defaulted Servicer as servicer under this Agreement as a
result of such Event of Default, all authority and power of the Defaulted
Servicer under this Agreement, whether with respect to the Mortgage Loans or
otherwise, shall pass to and be vested in the successor appointed pursuant to
Section 9.1. Upon written request from the Owner, the Defaulted Servicer shall,
at its sole expense, prepare, execute, and place in such successor's possession
or control all Collateral Files and Credit Files, and do or cause to be done all
other acts or things necessary or appropriate to effect the purposes of such
notice of termination, all of which shall be undertaken immediately and shall be
completed as soon as possible and in all events by not later than forty-five
(45) Business Days following the Owner's request therefor. The Defaulted
Servicer agrees to cooperate with the Owner and such successor in effecting the
termination of the Defaulted Servicer's responsibilities and rights hereunder,
including, without limitation, the transfer to such successor of all cash
amounts that have been credited by the Defaulted Servicer to the Account or the
Escrow Account at the time of transfer, and all other amounts that may
thereafter be received with respect to the Mortgage Loans and to which the
Defaulted Servicer is not entitled pursuant to the terms of this Agreement.
SECTION 1.38. WAIVER OF DEFAULTS
The Owner may waive any default by the Defaulted Servicer in the performance of
its obligations hereunder and its consequences. Any such waiver must be in
writing to be effective. Upon any waiver of a past default, such default shall
cease to exist, and any Event of Default arising therefrom shall, unless
otherwise specified in such waiver, be deemed to have been remedied for every
purpose of this Agreement unless the Defaulted Servicer fails to comply with the
terms of such waiver. No such waiver shall extend to any subsequent or other
default or impair any right consequent thereto except to the extent expressly so
waived.
SECTION 1.39. SURVIVAL OF CERTAIN OBLIGATIONS AND LIABILITIES OF THE
DEFAULTED SERVICER
The representations, warranties, covenants, indemnities and agreements of the
parties provided in this Agreement and the parties' obligations hereunder shall
survive the execution and delivery and the termination or expiration of this
Agreement. Notwithstanding any termination of the rights and obligations of the
Servicer pursuant to this Article 6, the Defaulted Servicer shall remain liable
for any actions of the Defaulted Servicer taken prior to the effective time of
such termination.
TERMINATION
SECTION 1.40. TERMINATION OF AGREEMENT
This Agreement shall terminate upon either (i) the later of the distribution to
the Owner of final payment or liquidation with respect to the last Mortgage Loan
subject to this Agreement and each REO Property or the disposition of all
property acquired upon foreclosure or deed in lieu of foreclosure with respect
to the last Mortgage Loan subject to this Agreement and the remittance of all
funds due hereunder, or (ii) the mutual written consent of the parties.
SECTION 1.41. TERMINATION OF THE SERVICER UPON UNREMEDIED EVENT OF
DEFAULT
The Owner may, at its sole option, following an unremedied Event of Default and
in accordance with Section 6.1, terminate any rights the Servicer may have
hereunder. The Owner, with full cooperation of the Servicer, shall arrange for
the transfer of servicing, at the Owner's option, to the Owner or a third party
successor servicer pursuant to Section 9.1, and the Servicer shall continue
servicing the Mortgage Loans under this Agreement, for the Servicing Fee
provided herein, until the Owner gives the Servicer notice of such transfer.
PASS-THROUGH AND WHOLE LOAN TRANSFER
Section 1.42. Pass-Through Transfers or Whole-Loan Transfers
(a) The Owner and the Servicer agree that in connection with any Whole
Loan Transfer or Pass-Through Transfer, the Owner may, in its sole discretion,
assign its rights under this Agreement with respect to the Mortgage Loans
subject to such Whole Loan Transfer or Pass-Through Transfer provided that: (i)
the Owner provides the Servicer with fifteen (15) calendar days' prior written
notice of its intent to effect such Whole Loan Transfer or Pass-Through
Transfer; (ii) no more than three (3) investors would own Mortgage Loans subject
to such Whole Loan Transfer or Pass-Through Transfer; (iii) the Owner provides
the Servicer with initial drafts of all documents for which the Servicer is
requested to become a party in connection with such Whole Loan Transfer or
Pass-Through Transfer at least ten (10) days prior to the related settlement
date (the "SUBSEQUENT TRANSFER SETTLEMENT DATE"); (iv) the Owner provides the
Servicer with a final list of the Mortgage Loans subject to such Whole Loan
Transfer or Pass-Through Transfer at least two (2) Business Days prior to the
related Subsequent Transfer Settlement Date; and (v) no Mortgage Loan shall be
subject to more than one (1) Whole Loan Transfer or Pass-Through Transfer in any
given Due Period.
(b) The Owner shall reimburse the Servicer for all reasonable
out-of-pocket expenses, including attorneys' fees, incurred by the Servicer in
connection with any Whole Loan Transfer or Pass-Through Transfer.
(c) In connection with each Whole Loan Transfer or Pass-Through
Transfer permitted under Section 8.1(a), the Servicer shall: (i) provide the
Owner with information and appropriate verification of information in its
possession or control as may reasonably be necessary in order to effect such
Whole Loan Transfer or Pass-Through Transfer (and, to the extent any such
information is in the possession or control of any third party, use commercially
reasonable efforts to cause such third party to provide such information); (ii)
cooperate with all reasonable requests and due diligence procedures not
otherwise addressed herein; (iii) execute an Assignment, Assumption and
Recognition Agreement, provided that each of the Servicer and the Owner is given
an opportunity to review and reasonably negotiate in good faith the content of
such document; and (iv) provide such other information, data or documentation as
may reasonably be necessary in order for any transferee under any permitted
Pass-Through Transfer to comply with Asset-Backed Securities (Regulation AB), 17
C.F.R. ▇▇.▇▇. 229.1100-229.1123 (2005).
(d) With respect to any Whole Loan Transfer or Pass-Through Transfer
permitted under Section 8.1(a) in which a prospectus, prospectus supplement or
other disclosure document (a "DISCLOSURE DOCUMENT") is prepared in connection
therewith, and in which 10% or more of the mortgage loans in the related
transaction (measured as of the closing of such transaction) consist of Mortgage
Loans if such Whole Loan Transfer or Pass Through Transfer occurs prior to April
1, 2006, and in which 20% or more of the mortgage loans in the related
transaction (measured as of the closing of such transaction) consist of Mortgage
Loans if such Whole Loan Transfer or Pass-Through Transfer occurs on or after
April 1, 2006, the Servicer shall:
(i) provide for inclusion as part of such Disclosure Document (A) the
regulatory status of the Servicer and its affiliates and (B) delinquency and
foreclosure information of the type typically provided by the Servicer in
connection with mortgage loans originated by the Servicer and securitized by
third parties (the information referred to in this sentence, in the form
provided to the Owner, being "SERVICER'S INFORMATION");
(ii) provide the Owner with an accountants comfort letter addressing
the delinquency and foreclosure statistics of the Servicer; and
(iii) (A) indemnify and hold harmless the transferee under any
permitted Pass-Through Transfer, the Owner and each Person, if any, who
"controls" such transferee, if any, or the Owner within the meaning of the
Securities Act of 1933, as amended (an "INDEMNIFIED PARTY"), against any losses,
claims, damages or liabilities to which such Indemnified Party may become
subject, under the Securities Act of 1933, as amended, or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof) (x)
arise out of or are based upon any untrue statement of any material fact
contained in Servicer's Information provided by such Servicer and included in a
Disclosure Document, or (y) arise out of or are based upon the omission to state
in such Servicer's Information a material fact required to be stated in the
Servicer's Information or necessary to make the statements in the Servicer's
Information not misleading, and (B) reimburse each Indemnified Party for any
legal or other expenses reasonably incurred by such Indemnified Party in
connection with investigating or defending any such loss, claim, damage,
liability or action.
(e) With respect to any Pass-Through Transfer permitted under Section
8.1(a) in which all or substantially all of the mortgage loans in the related
transaction consist of Mortgage Loans, the Servicer shall:
(i) execute and deliver a pooling and servicing agreement containing
terms and conditions that are consistent with the terms and conditions set forth
herein and that are customary for public, rated transactions for the issuance of
pass-through certificates backed by mortgage loans similar to the Mortgage Loans
included in such Pass-Through Transfer, provided, that (A) any servicing
reporting requirements must be consistent with the standard practices of the
Servicer and (B) each of the parties to such pooling and servicing agreement
negotiates in good faith any terms or conditions in such pooling and servicing
agreement not specifically referenced or provided for under this Agreement; and
(ii) provide Owner with opinions of counsel as to the Servicer's
corporate authority and the enforceability of the pooling and servicing
agreement against the Servicer, audit letters addressing the delinquency and
foreclosure statistics of the Servicer and certificates from public officials,
each as the Servicer and the Owner shall mutually agree to be necessary to
effect such Pass-Through Transfer.
(f) With respect to any Whole Loan Transfer or Pass-Through Transfer in
which a Disclosure Document is prepared in connection therewith, the Owner
shall:
(i) provide the Servicer with all drafts of the Servicer's Information
when produced and revise the Servicer's Information in accordance with the
Servicer's comments to correct any information therein at the Owner's cost; and
(ii) (A) indemnify and hold harmless the Servicer against any losses,
claims, damages or liabilities to which the Servicer may become subject, under
the Securities Act of 1933, as amended, or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) (x) arise out of
or are based upon any untrue statement of any material fact contained in such
Disclosure Document (other than an untrue statement of material fact contained
in the Servicer's Information), or (y) arise out of or are based upon the
omission to state in such Disclosure Document a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (unless the material
fact omitted would constitute Servicer's Information) and (B) reimburse the
Servicer for any legal or other expenses reasonably incurred by the Servicer in
connection with investigating or defending any such loss, claim, damage,
liability or action.
Section 1.43. Designation of a Master Servicer
(a) Notwithstanding anything to the contrary contained in this
Agreement, the Owner shall have the right, in its sole discretion, upon thirty
(30) days' prior written notice to the Servicer, to appoint and designate a
master servicer (the "MASTER SERVICER"), as master servicer of Mortgage Loans
subject to a permitted Whole Loan Transfer or Pass-Through Transfer. Upon
receipt of written notice of such appointment, the Servicer shall promptly enter
into a servicing agreement or an Assignment, Assumption and Recognition
Agreement (a "MASTER SERVICING AGREEMENT") to service the Mortgage Loans for the
Master Servicer in accordance with the Master Servicer's requirements; provided,
however, that the Servicer shall be under no obligation to enter into any Master
Servicing Agreement unless the obligations and duties of the Servicer as a
subservicer thereunder (i) are not materially different from than those set
forth herein, (ii) do not cause undue burden on the Servicer, (iii) do not
expand in any material respect any of the obligations, duties or liabilities of
the Servicer hereunder and (iv) will not result in any increased cost to the
Servicer. If the Servicer and the Master Servicer enter into a Master Servicing
Agreement, the Servicer shall service the Mortgage Loans, and remit and report
to the Master Servicer, in accordance with the terms of the Master Servicing
Agreement and, to the extent inconsistent therewith, the servicing provisions
set forth in this Agreement shall be superseded by the Master Servicing
Agreement. If the Servicer and the Master Servicer do not enter into a Master
Servicing Agreement, the Servicer shall service the Mortgage Loans, and remit
and report to the Master Servicer, in accordance with the terms of this
Agreement.
(b) Upon appointment of a Master Servicer in accordance with Section
8.2(a), the Servicer shall correspond and communicate solely with the Master
Servicer regarding the servicing of the Mortgage Loans. The Master Servicer
shall have the right as designee of the Owner, unless otherwise agreed among the
Owner, the Master Servicer and the Servicer, to enforce the covenants and
conditions set forth in this Agreement, and the Servicer shall follow and shall
be entitled to rely on the instructions of the Master Servicer under this
Agreement as if such instructions were the instructions of the Owner. The Master
Servicer shall have the right to give any waivers or consents required or
allowed under this Agreement on behalf of the Owner, and the Servicer shall be
entitled to rely on such waivers and consents as if such waivers or consents
were the waivers or consents of the Owner. The Master Servicer is empowered to
enter into and execute and deliver any amendments or modifications to this
Agreement as the Owner's designee hereunder, and such amendments or
modifications shall be binding upon the Owner as if the Owner had executed and
delivered the same.
(c) Upon receipt of notice of termination of the Master Servicer, the
Servicer shall no longer deal with the Master Servicer and shall instead deal
directly with the Owner. From and after receipt of such notice of termination of
the Master Servicer, the Servicer shall service the applicable Mortgage Loans in
accordance with the provisions of this Agreement and shall give no effect to any
Master Servicing Agreement entered into with the Master Servicer.
MISCELLANEOUS PROVISIONS
SECTION 1.44. SUCCESSOR TO THE SERVICER
(a) Prior to termination of the Servicer's responsibilities and duties
under this Agreement pursuant to Sections 5.4, 6.1, 7.1, or 7.2, the Owner shall
either (i) succeed to and assume all of the Servicer's responsibilities, rights,
duties, and obligations under this Agreement from and after the date of such
succession, or (ii) appoint a successor to the Servicer that shall succeed to
all rights and assume all of the responsibilities, duties and liabilities of the
Servicer under this Agreement prior to the termination of the Servicer's
responsibilities, duties, and liabilities under this Agreement. If the
Servicer's duties, responsibilities, and liabilities under this Agreement shall
be terminated pursuant to any of the foregoing Sections, the Servicer shall
discharge such duties and responsibilities with the same degree of diligence and
prudence that it is obligated to exercise under this Agreement, from the date it
acquires knowledge of such termination until the effective date thereof.
(b) The Servicer shall promptly deliver to its successor (i) the funds
in the Account and the Escrow Account to which the Owner is entitled pursuant to
the terms of this Agreement and all other amounts that may thereafter be
received with respect to the Mortgage Loans and to which the Servicer is not
entitled pursuant to the terms of this Agreement and (ii) all Collateral Files
and Credit Files and related documents and statements held by it hereunder. The
Servicer shall account for all funds and shall execute and deliver such
instruments and do such other things as may reasonably be required to more fully
and definitively vest in the successor all such rights, powers, duties,
responsibilities, obligations and liabilities of the Servicer.
(c) Upon a successor's acceptance of appointment as such, the Owner
shall notify the Servicer of such appointment.
(d) Notwithstanding any termination pursuant to this Agreement, the
Servicer shall continue to be entitled to receive all amounts accrued or owing
to it under this Agreement on or prior to the effective date of such
termination, whether in respect of (i) unreimbursed Servicing Advances or
Monthly Advances, (ii) unpaid Servicing Fees or REO Management Fees, or (iii)
other servicing compensation, and shall continue to be entitled to the benefits
of Section 5.3 notwithstanding any such termination, with respect to events
occurring prior to such termination.
SECTION 1.45. AMENDMENT
This Agreement may be amended from time to time solely by written agreement
signed by each of the parties.
Section 1.46. Recordation of Agreement; Perfection of Security
Interest; Further Assurances
(a) To the extent necessary under applicable law to protect the
interests of the Owner, this Agreement, or a memorandum thereof, 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 the Owner at the Owner's
expense.
(b) The Servicer agrees to execute or cause to be executed such
documents and take or cause to be taken such actions as may be necessary to
effect the intent of this Agreement, including, without limitation, the
execution and delivery of instruments of further assurance and the execution and
delivery of such other documents, and the taking of such other actions, as may
be reasonably requested by the Owner.
Section 1.47. Duration of Agreement
This Agreement shall continue in existence and effect until terminated
as herein provided.
SECTION 1.48. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of
the State of New York (including Section 5-1401 of the New York General
Obligations Law) and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws without giving effect
to conflict of laws principles other than Section 5-1401 of the New York General
Obligations Law.
SECTION 1.49. 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; and
(vi) the term "include" or "including" shall mean without limitation by
reason of enumeration.
SECTION 1.50. REPRODUCTION OF DOCUMENTS
This Agreement and all documents relating hereto, including, without
limitation, (i) consents, waivers, and modifications that may hereafter be
executed, (ii) documents received by any party on any Closing Date, and (iii)
financial statements, certificates, and other information previously or
hereafter furnished, may be reproduced by any photographic, photostatic,
microfilm, microcard, miniature photographic, or other similar process. 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. Any enlargement, facsimile or further reproduction
of such reproduction shall likewise be admissible in evidence.
SECTION 1.51. NOTICES
All demands, notices, consents, waivers and other communications
hereunder shall be in writing and shall be deemed to have been duly given upon
receipt (x) in the case of any notice of an Event of Default, if mailed by
registered mail, postage prepaid and (y) in the case of any other demand,
notice, consent, waiver or other communication, if personally delivered, mailed
by registered mail, postage prepaid, delivered by air courier or sent by
facsimile to:
(i) in the case of the Servicer, at the address set forth below or such
other address as may hereafter be furnished to the Owner in writing by the
Servicer:
Washington Mutual Bank
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (Mail Stop N080108)
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Vice President, Investor Reporting
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) in the case of the Owner, at the address set forth below, or such
other address as may hereafter be furnished to the Servicer by the Owner:
EMC Mortgage Corporation
MacArthur Ridge II
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and in the case of any subsequent Owner, as set forth in written notice supplied
to the Servicer by such subsequent Owner.
Notwithstanding the foregoing any demand, notice, consent, waiver or
communication (other than those referred to in clause (x) above) may be given by
any other means if the parties hereto agree to such alternative means in
writing.
SECTION 1.52. SEVERABILITY OF PROVISIONS
If any one or more of the covenants, agreements, provisions or terms of this
Agreement shall be held invalid for any reason, then such covenants, agreements,
provisions or terms shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Agreement and shall in no way affect the
validity or enforceability of the other covenants, agreements, provisions or
terms of this Agreement or the rights of the Owner hereunder. 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 new structure,
the economic effect of which is nearly as possible the same as the economic
effect of this Agreement without regard to such invalidity.
SECTION 1.53. EXHIBITS AND SCHEDULES
The exhibits and schedules to this Agreement are hereby incorporated and made an
integral part of this Agreement.
SECTION 1.54. COUNTERPARTS; 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 Sections 5.4, 5.5, 5.6, 6.1, 7.1, 7.2 and
8.1, this Agreement shall inure to the benefit of and be binding upon the
Servicer, the Owner and their respective successors and assigns.
SECTION 1.55. EFFECT OF HEADINGS
The headings in this Agreement are for purposes of reference only and shall not
limit or otherwise affect the meaning hereof.
SECTION 1.56. OTHER AGREEMENTS SUPERSEDED; ENTIRE AGREEMENT
This Agreement supersedes all prior agreements and understandings relating to
the subject matter hereof. This Agreement also replaces and supercedes, with
respect to each Mortgage Loan, as of the related Closing Date, all of the terms
and conditions of any other servicing agreement to which the Servicer is bound
that purports to govern the servicing of any such Mortgage Loan. This Agreement
constitutes the entire agreement of the parties with respect to the subject
matter hereof.
Section 1.57. Attorneys' Fees
If either party retains an attorney to enforce any of the provisions of this
Agreement, the prevailing party shall be entitled to reasonable attorneys' fees
from the other party, including, without limitation, fees incurred in
arbitration and in trial and appellate courts, fees incurred without suit, and
all arbitration, court and accounting costs.
Section 1.58. Non-Solicitation
Following the related Closing Date, the Servicer shall not take any action to
solicit the refinancing of any Mortgage Loan, or provide information to any
other entity to solicit the refinancing of any Mortgage Loan; provided that, the
foregoing shall not preclude the Servicer, or any of its affiliates, from (a)
engaging in general solicitations to its customer base, including by mass
mailing or as part of monthly or periodic statements mailed to its borrowers or
to holders of deposit or other accounts, (b) engaging in solicitations to the
general public, including without limitation by mass mailing, newspaper, radio,
television or other media which are not specifically directed toward the
Mortgagors, (c) engaging in solicitations of optional insurance or other bank
products (not including mortgage loans) (d) refinancing the Mortgage Loan of any
Mortgagor who, without solicitation, contacts the Servicer to request the
refinancing of the related Mortgage Loan, or (e) engaging in any action to
solicit the refinancing of any Mortgage Loan to the extent such action would be
permitted under the ▇▇▇▇▇▇ Mae Selling Guide or the ▇▇▇▇▇▇ ▇▇▇ Servicing Guide.
Section 1.59. Confidential Information
Each party understands that certain information that has been furnished and
shall be furnished in connection with the transactions contemplated under this
Agreement is required by applicable law (including, without limitation, the
▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act and the regulations promulgated thereunder) to be kept
confidential. Each party shall maintain the confidentiality of such information
and shall not, without the written consent of the party furnishing such
information, disclose it to third parties or use it except in connection with
the transactions contemplated by this Agreement or as permitted by applicable
law.
[signatures follow]
TO WITNESS THIS, the Servicer and the Owner have caused their names to be signed
to this Servicing Agreement by their respective officers duly authorized as of
the day and year first written above.
SERVICER:
WASHINGTON MUTUAL BANK
a federally chartered savings bank
By:
------------------------------------
Name:
---------------------------------
Title:
---------------------------------
OWNER:
EMC MORTGAGE CORPORATION
a Delaware corporation
By:
------------------------------------
Name:
---------------------------------
Title:
---------------------------------
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
This instrument was acknowledged before me on ______________________, 2005, by
_____________________ as _________________________ of Washington Mutual Bank.
[Print Name]_________________________ NOTARY PUBLIC
in and for the State of Washington, residing at
_____________________________________________ My
commission expires
___________________________________
STATE OF ________ )
) ss.
COUNTY OF ______ )
This instrument was acknowledged before me on ______________________,
2005, by _____________________ as _________________________ of EMC Mortgage
Corporation.
[Print Name]_________________________ NOTARY PUBLIC
in and for the State of _________, residing at
_____________________________________________ My
commission expires
___________________________________
EXHIBIT A
FORM OF REQUEST FOR RELEASE OF DOCUMENTS AND RECEIPT
To: [Name/Address of Owner]
Attention:
--------------------------------------
Telephone:
------------------------
Facsimile:
------------------------
Re: Servicing Agreement dated as of __________, 200_ (the
"Servicing Agreement") between EMC Mortgage Corporation (the
"Owner") and Washington Mutual Bank (the "Servicer")
In connection with the administration of the Mortgage Loans that we service on
your behalf pursuant to the Servicing Agreement, we request the release, and
acknowledge receipt of the Collateral File/[specify documents]) for the Mortgage
Loan described below, for the reason indicated.
MORTGAGOR'S NAME, ADDRESS AND ZIP CODE:
MORTGAGE LOAN NUMBER:
REASON FOR REQUESTING DOCUMENTS: (check one)
_____ 1. Mortgage Loan paid in full. (The Servicer hereby
certifies that all amounts received in connection
therewith have been credited to the Account as
provided in the Servicing Agreement.)
_____ 2. Mortgage Loan in foreclosure.
_____ 3. Repurchase. (The Servicer hereby certifies that the
repurchase price has been credited to the Account.)
_____ 4. Mortgage Loan liquidated by . (The Servicer hereby
certifies that all proceeds of the foreclosure,
insurance, condemnation or other liquidation have
been finally received and credited to the Account
pursuant to the Servicing Agreement.)
_____ 5. Other (Explain):
------------------------------------
If box 1, 2 or 3 above is checked, and if all or part of the Collateral
File was previously released to us, please release to us our previous request
and receipt on file with you, as well as any additional documents in your
possession relating to the specified Mortgage Loan.
If box 4 or 5 above is checked, upon our return of all of the above
documents to you, please acknowledge your reception by signing in the space
indicated below and returning this form.
WASHINGTON MUTUAL BANK
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
Acknowledgment of Documents returned to the Owner:
[_____________________________]
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Date:
---------------------------------------
EXHIBIT B
ACCOUNT LETTER AGREEMENT
---------------, ------
To:
---------------------------------
---------------------------------
---------------------------------
(the "Depository")
As the "Servicer" under the Servicing Agreement dated as of
_________________, 200_, between the Servicer and the Owner named therein (the
"Agreement"), we hereby authorize and request you to establish an account, as an
Account pursuant to Section 2.4 of the Agreement, to be designated as
"Washington Mutual Bank, in trust for ______________________, as Owner, and any
successor Owner." All deposits in the account shall be subject to withdrawal
therefrom by order signed by the Servicer. You may refuse any deposit that would
result in violation of the requirement that the account be fully insured as
described below. This letter is submitted to you in duplicate. Please execute
and return one original to us.
----------------------------------
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
The undersigned, as the "Depository," hereby certifies that the
above-described account has been established under Account Number
_________________, at the office of the Depository indicated above, and agrees
to honor withdrawals on such account as provided above. The full amount
deposited at any time in the account will be insured by the Federal Deposit
Insurance Corporation.
----------------------------------
(Name of Depository)
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
EXHIBIT C
ESCROW ACCOUNT LETTER AGREEMENT
--------------------, ---
To:
---------------------------------
---------------------------------
---------------------------------
(the "Depository")
As the "Servicer" under the Servicing Agreement dated as of
_________________, 200_, between the Servicer and the Owner named therein (the
"Agreement"), we hereby authorize and request you to establish an account, as an
Escrow Account pursuant to Section 2.6 of the Agreement, to be designated as
"Washington Mutual Bank, in trust for ___________________________, as Owner, and
any successor Owner, and certain Mortgagors." All deposits in the account
pursuant to the Agreement shall be subject to withdrawal therefrom by order
signed by the Servicer. You may refuse any deposit that would result in
violation of the requirement that the account by fully insured as described
below. This letter is submitted to you in duplicate. Please execute and return
one original to us.
----------------------------------
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
The undersigned, as the "Depository," hereby certifies that the
above-described account has been established under Account Number
_________________, at the office of the Depository indicated above, and agrees
to honor withdrawals on such account as provided above. The full amount
deposited at any time in the account will be insured by the Federal Deposit
Insurance Corporation.
----------------------------------
(Name of Depository)
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
EXHIBIT D
FORM OF OFFICER'S CERTIFICATE
I, [NAME OF CERTIFYING INDIVIDUAL], A DULY ELECTED AND ACTING OFFICER
OF WASHINGTON MUTUAL BANK (THE "SERVICER"), CERTIFY PURSUANT TO SECTION 4.4(B)
OF THE SERVICING AGREEMENT DATED AS OF ___________, 200_ (AS FROM TIME TO TIME
AMENDED OR REPLACED BY A RECONSTITUTED SERVICING OR OTHER SUCCESSOR SERVICING
AGREEMENT, THE "SERVICING AGREEMENT") BETWEEN THE SERVICER AND EMC MORTGAGE
CORPORATION (THE "OWNER") TO THE OWNER AND EACH OTHER PERSON ENTITLED TO RECEIVE
SERVICING REPORTS PROVIDED PURSUANT TO SECTION 3.2(A) OF THE SERVICING AGREEMENT
(THE "SERVICING REPORTS"), EACH PERSON, IF ANY, WHO "CONTROLS" THE OWNER OR SUCH
OTHER PERSON WITHIN THE MEANING OF THE SECURITIES ACT OF 1933, AS AMENDED, AND
THEIR RESPECTIVE OFFICERS AND DIRECTORS, WITH RESPECT TO THE CALENDAR YEAR
IMMEDIATELY PRECEDING THE DATE OF THIS CERTIFICATE (THE "RELEVANT YEAR"), AS
FOLLOWS:
1. FOR PURPOSES OF THIS CERTIFICATE, "RELEVANT INFORMATION" MEANS THE
INFORMATION IN THE CERTIFICATE PROVIDED PURSUANT TO SECTION 4.4(A) OF THE
SERVICING AGREEMENT (THE "ANNUAL COMPLIANCE CERTIFICATE") FOR THE RELEVANT YEAR
AND THE INFORMATION IN ALL SERVICING REPORTS PROVIDED BY THE SERVICER DURING THE
RELEVANT YEAR. BASED ON MY KNOWLEDGE, THE RELEVANT INFORMATION, TAKEN AS A
WHOLE, DOES NOT CONTAIN ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT TO STATE
A MATERIAL FACT REQUIRED TO BE STATED THEREIN WHICH IS NECESSARY TO MAKE THE
STATEMENTS MADE THEREIN, IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH SUCH
STATEMENTS WERE MADE, NOT MISLEADING AS OF THE LAST DAY OF THE RELEVANT YEAR.
2. THE RELEVANT INFORMATION HAS BEEN PROVIDED TO THOSE PERSONS ENTITLED
TO RECEIVE IT.
3. I am responsible for reviewing the activities performed by the
Servicer under the Servicing Agreement during the Relevant Year. Based upon the
review required by the Servicing Agreement and except as disclosed in the Annual
Compliance Certificate or the accountants' statement provided pursuant to
Section 4.5, to the best of my knowledge, the Servicer has fulfilled its
obligations under the Servicing Agreement throughout the Relevant Year.
DATED AS OF ________ __. 200_.
----------------------------------
Name:
-----------------------------
Title:
----------------------------
EXHIBIT E
CONTENTS OF CREDIT FILE
With respect to each Mortgage Loan, unless otherwise agreed by the Servicer and
the Owner, the Credit File may include each of the following items, which such
items may be originals, copies or documents stored on microfilm or any other
comparable medium:
1. Survey of the Mortgaged Property, if available.
2. Each instrument necessary to complete identification of any
exception set forth in the exception schedule in the title
policy (i.e., map or plat, restrictions, easements, sewer
agreements, home association declarations, etc.).
3. Evidence of a hazard insurance policy and, if required by law,
a flood insurance policy, with extended coverage of the hazard
insurance policy.
4. Mortgage Loan closing statement (Form HUD-1) and any other
truth-in-lending or real estate settlement procedure forms
required by law.
5. Residential loan application.
6. Verification of employment and income (if required pursuant to
the seller's underwriting criteria).
7. Verification of acceptable evidence of source and amount of
down payment (to the extent required under the seller's
underwriting guidelines).
8. Credit report on the Mortgagor.
9. Residential appraisal report.
10. Photograph of the property.
11. Executed disclosure statement.
12. Tax receipts, insurance premium receipts, ledger sheets,
payment records, insurance claim files and correspondence,
correspondence, current and historical computerized data
files, underwriting standards used for origination, and all
other papers and records developed or originated by the
applicable seller or others required to document the Mortgage
Loan or to service the Mortgage Loan.
13. A copy of the policy of title insurance, including any
endorsements thereto.
14. The executed Power of Attorney, if any.
15. A copy of the original Primary Mortgage Insurance Policy, if
any.
EXHIBIT F
FORM OF CONFIRMATION AGREEMENT
This Confirmation Agreement (the "CONFIRMATION AGREEMENT") dated as of
__________, 200_ is by and between Washington Mutual Bank, a savings bank
organized under the laws of the United States, in its capacity as servicer (the
"SERVICER"), and EMC Mortgage Corporation, a Delaware corporation, and its
successors and assigns, in its capacity as owner (the "OWNER").
Reference is made to that certain Servicing Agreement (the "SERVICING
AGREEMENT"), dated as of _________, 200_, among the Servicer and the Owner, the
provisions of which are incorporated herein, as such terms may be modified or
supplemented. All capitalized terms shall have the meanings ascribed to them in
the Servicing Agreement, unless otherwise defined here.
1. As of the Closing Date (defined below), Washington Mutual Bank shall service
the Mortgage Loans described on the Mortgage Loan Schedule attached hereto as
SCHEDULE 1 (each a "MORTGAGE LOAN," and collectively, the "MORTGAGE LOANS") for
the benefit of the Owner and all subsequent transferees of the Mortgage Loans in
accordance with the terms and conditions of the Servicing Agreement. The parties
to this Confirmation Agreement hereby acknowledge and agree that, with respect
to each Mortgage Loan, the terms and conditions of the Servicing Agreement shall
replace and supercede, as of the Closing Date (defined below), all of the terms
and conditions of any other servicing agreement to which the Servicer is bound
that purports to govern the servicing of any such Mortgage Loan.
2. For purposes of the Mortgage Loans to be serviced pursuant to this
Confirmation Agreement, the following terms shall have the following meanings:
CLOSING DATE: [ ]
----------------------------------
CUSTODIAN: [ ]
----------------------------------
CUT-OFF DATE: [ ]
----------------------------------
SERVICING FEE RATE: [ ]
----------------------------------
3. This Confirmation 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. This Confirmation Agreement shall inure
to the benefit of and be binding upon the Servicer, the Owner and their
respective successors and assigns.
4. This Confirmation Agreement shall be governed by and construed in accordance
with the laws of the State of New York (including Section 5-1401 of the New York
General Obligations Law) and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws without giving effect
to conflict of laws principles other than Section 5-1401 of the New York General
Obligations Law.
TO WITNESS THIS, the parties have caused their names to be signed by their
respective duly authorized officers as of the date first written above.
WASHINGTON MUTUAL BANK
a federally chartered savings bank
By: ___________________________________
Name:__________________________________
Title: ________________________________
EMC MORTGAGE CORPORATION
a Delaware corporation
By: ___________________________________
Name:__________________________________
Title: ________________________________
SCHEDULE 1
MORTGAGE LOANS
[TO BE ATTACHED]
EXHIBIT H-12
SERVICING AGREEMENT
▇▇▇▇▇ FARGO
This is an Amended and Restated Master Seller's Warranties and
Servicing Agreement for residential first mortgage loans, dated and effective as
of November 1, 2005, and is executed between EMC Mortgage Corporation, as
purchaser (the "Purchaser"), and ▇▇▇▇▇ Fargo Bank, N.A., as seller and servicer
(the "Company").
W I T N E S S E T H
WHEREAS, the Purchaser has agreed to purchase from the Company and the
Company has agreed to sell to the Purchaser from time to time (each a
"Transaction") certain residential Mortgage Loans which shall be delivered as
whole loans (each a "Loan Package") on various dates (each a "Closing Date") as
provided for in certain Assignment and Conveyance Agreements by and between the
Purchaser and the Company as executed from time to time; and
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 related Mortgage Loan
Schedule; and
WHEREAS, the Purchaser and the Company wish to prescribe the manner of
purchase of the Mortgage Loans and the conveyance, servicing and control of the
Mortgage Loans.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth, and for other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the Purchaser and the Company agree as
follows:
ARTICLE I
DEFINITIONS
Whenever used herein, the following words and phrases, unless the
content otherwise requires, shall have the following meanings:
ACCEPTED SERVICING PRACTICES: With respect to any Mortgage Loan, those
mortgage servicing practices of prudent mortgage lending institutions which
service mortgage loans of the same type as such Mortgage Loan in the
jurisdiction where the related Mortgaged Property is located.
ADJUSTMENT DATE: As to each adjustable rate Mortgage Loan, the date on
which the Mortgage Interest Rate is adjusted in accordance with the terms of the
related Mortgage Note and Mortgage.
AGENCY/AGENCIES: ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ Mac or GNMA, or any of them as
applicable.
AGENCY TRANSFER: Any sale or transfer of some or all of the Mortgage
Loans by the Purchaser to an Agency which sale or transfer is not a
Securitization Transaction or Whole Loan Transfer.
AGREEMENT: This Amended and Restated Master Seller's Warranties and
Servicing Agreement and all amendments hereof and supplements hereto.
ALTA: The American Land Title Association or any successor thereto.
APPRAISED VALUE: With respect to any Mortgage Loan, the lesser of (i)
the value set forth on the appraisal made in connection with the origination of
the related Mortgage Loan as the value of the related Mortgaged Property, or
(ii) the purchase price paid for the Mortgaged Property, provided, however, in
the case of a refinanced Mortgage Loan, such value shall be based solely on the
appraisal made in connection with the origination of such Mortgage Loan.
ASSIGNMENT AND CONVEYANCE AGREEMENT: With respect to each Transaction,
the agreement between the Purchaser and the Company conveying to the Purchaser
all the right, title and interest of the Company in and to the related Mortgage
Loans listed on the related Mortgage Loan Schedule, a form of which is attached
hereto as Exhibit A.
ASSIGNMENT OF MORTGAGE: An assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form, sufficient under the laws
of the jurisdiction wherein the related Mortgaged Property is located to reflect
the sale of the Mortgage to the Purchaser or if the related Mortgage has been
recorded in the name of MERS or its designee, such actions as are necessary to
cause the Purchaser to be shown as the owner of the related Mortgage on the
records of MERS for purposes of the system of recording transfers of beneficial
ownership of mortgages maintained by MERS, including assignment of the MIN
Number which will appear either on the Mortgage or the Assignment of Mortgage to
MERS.
ASSIGNMENT OF MORTGAGE NOTE AND PLEDGE AGREEMENT: With respect to a
Cooperative Loan, an assignment of the Mortgage Note and Pledge Agreement.
ASSIGNMENT OF PROPRIETARY LEASE: With respect to a Cooperative Loan, an
assignment of the Proprietary Lease sufficient under the laws of the
jurisdiction wherein the related Cooperative Apartment is located to effect the
assignment of such Proprietary Lease.
BUSINESS DAY: Any day other than (i) a Saturday or Sunday, or (ii) a
day on which banking and savings and loan institutions in the states where the
parties are located or are authorized or obligated by law or executive order to
be closed.
BUYDOWN AGREEMENT: An agreement between the Company and a Mortgagor, or
an agreement among the Company, a Mortgagor and a seller of a Mortgaged Property
or a third party with respect to a Mortgage Loan which provides for the
application of Buydown Funds.
BUYDOWN FUNDS: In respect of any Buydown Mortgage Loan, any amount
contributed by the seller of a Mortgaged Property subject to a Buydown Mortgage
Loan, the buyer of such property, the Company or any other source, plus interest
earned thereon, in order to enable the Mortgagor to reduce the payments required
to be made from the Mortgagor's funds in the early years of a Mortgage Loan.
BUYDOWN MORTGAGE LOAN: Any Mortgage Loan in respect of which, pursuant
to a Buydown Agreement, (i) the Mortgagor pays less than the full Monthly
Payments specified in the Mortgage Note for a specified period, and (ii) the
difference between the payments required under such Buydown Agreement and the
Mortgage Note is provided from Buydown Funds.
BUYDOWN PERIOD: The period of time when a Buydown Agreement is in
effect with respect to a related Buydown Mortgage Loan.
CLOSING DATE: The date or dates, set forth in the related Commitment
Letter, on which from time to time the Purchaser shall purchase and the Company
shall sell the Mortgage Loans listed on the related Mortgage Loan Schedule for
each Transaction.
CODE: The Internal Revenue Code of 1986, as it may be amended from time
to time or any successor statute thereto, and applicable U.S. Department of the
Treasury regulations issued pursuant thereto.
COMMISSION: The United States Securities and Exchange Commission.
COMMITMENT LETTER: The commitment letter executed in relation to each
Transaction that sets forth, among other things, the Purchase Price for the
related Mortgage Loans.
COMPANY: ▇▇▇▇▇ Fargo Bank, N.A., or its successor in interest or
assigns, or any successor to the Company under this Agreement appointed as
herein provided.
Company INFORMATION: As defined in Section 9.01(f)(i)(A).
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.
COOPERATIVE: The entity that holds title (fee or an acceptable
leasehold estate) to all of the real property that the Project comprises,
including the land, separate dwelling units and all common areas.
COOPERATIVE APARTMENT: The specific dwelling unit relating to a
Cooperative Loan.
COOPERATIVE LIEN SEARCH: A search for (a) federal tax liens, mechanics'
liens, LIS PENDENS, judgments of record or otherwise against (i) the
Cooperative, (ii) the seller of the Cooperative Apartment and (iii) the Company
if the Cooperative Loan is a refinanced Mortgage Loan, (b) filings of financing
statements and (c) the deed of the Project into the Cooperative.
COOPERATIVE LOAN: A Mortgage Loan that is secured by Cooperative Shares
and a Proprietary Lease granting exclusive rights to occupy the related
Cooperative Apartment.
COOPERATIVE SHARES: The shares of stock issued by a Cooperative, owned
by the Mortgagor, and allocated to a Cooperative Apartment.
COVERED LOAN: A Mortgage Loan categorized as "Covered" pursuant to the
Standard & Poor's Glossary for File Format for LEVELS(R) Version 5.6, Appendix
E, as revised from time to time and in effect on each related Closing Date.
CUSTODIAL ACCOUNT: The separate account or accounts created and
maintained pursuant to Section 4.04.
CUSTODIAL AGREEMENT: The agreement governing the retention of the
originals of each Mortgage Note, Mortgage, Assignment of Mortgage and other
Mortgage Loan Documents, a form of which is annexed hereto as Exhibit B.
CUSTODIAL MORTGAGE FILE: The items referred to as items (1), (2), (4),
(5) and (10) in Exhibit C annexed hereto to be delivered by the Company to the
Custodian on the related Closing Date with respect to a particular Mortgage
Loan, and any additional documents required to be added to the Custodial
Mortgage File and delivered to the custodian pursuant to this Agreement.
CUSTODIAN: The custodian under the Custodial Agreement, or its
successor in interest or assigns, or any successor to the Custodian under the
Custodial Agreement as provided therein.
CUT-OFF DATE: With respect to each Transaction, the first day of the
month in which the related Closing Date occurs.
DELETED MORTGAGE LOAN: A Mortgage Loan which is repurchased by the
Company in accordance with the terms of this Agreement and which is, in the case
of a substitution pursuant to Section 3.03, replaced or to be replaced with a
Qualified Substitute Mortgage Loan.
DEPOSITOR: The depositor, as such term is defined in Regulation AB,
with respect to any Securitization Transaction.
DETERMINATION DATE: The Business Day immediately preceding the related
Remittance Date.
DUE DATE: The first day of the month on which the Monthly Payment is
due on a Mortgage Loan, exclusive of any days of grace.
DUE PERIOD: With respect to each Remittance Date, the period commencing
on the second day of the month preceding the month of the Remittance Date and
ending in the first day of the month of the Remittance Date.
ELECTRONIC DATA FILE: The final electronic file of the Mortgage Loans,
in relation to each Transaction, provided by Company to the Purchaser on or
before the related Closing Date.
ERRORS AND OMISSIONS INSURANCE POLICY: An errors and omissions
insurance policy to be maintained by the Company pursuant to Section 4.12.
ESCROW ACCOUNT: The separate account or accounts created and maintained
pursuant to Section 4.06.
ESCROW PAYMENTS: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, mortgage insurance premiums, fire and hazard insurance
premiums, condominium charges, and any other payments required to be escrowed by
the Mortgagor with the mortgagee pursuant to the Mortgage or any other related
document.
EVENT OF DEFAULT: Any one of the conditions or circumstances enumerated
in Section 10.01.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
▇▇▇▇▇▇ ▇▇▇: The Federal National Mortgage Association or any successor
thereto.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FIDELITY BOND: A fidelity bond to be maintained by the Company pursuant
to Section 4.12.
▇▇▇▇▇▇▇ MAC: The Federal Home Loan Mortgage Corporation or any
successor thereto.
GROSS MARGIN: With respect to each adjustable rate Mortgage Loan, the
fixed percentage amount set forth in the related Mortgage Note which is added to
the Index in order to determine the related Interest Rate, as set forth in the
Mortgage Loan Schedule.
HIGH COST LOAN: A Mortgage Loan classified as (a) a "high cost" loan
under the Home Ownership and Equity Protection Act of 1994, (b) a "high cost
home," "threshold," "covered," "high risk home," "predatory" or similar loan
under any other applicable state, federal or local law or (c) a Mortgage Loan
categorized as "High Cost" pursuant to the Standard & Poor's Glossary for File
Format for LEVELS(R) Version 5.6, Appendix E, as revised from time to time and
in effect on each related Closing Date.
HOME LOAN: A Mortgage Loan categorized as "Home Loan" pursuant to the
Standard & Poor's Glossary for File Format for LEVELS(R) Version 5.6, Appendix
E, as revised from time to time and in effect on each related Closing Date.
INCREMENTAL INTEREST: As to any Incremental Rate Mortgage Loan, the
amount of interest accrued on such Mortgage Loan attributable to the Incremental
Rate; provided, however, that with respect to any payment of interest received
in respect of such a Mortgage Loan (whether paid by the Mortgagor or received as
Liquidation Proceeds or otherwise) which is less than the full amount of
interest then due with respect to such Mortgage Loan, only that portion of such
payment of interest that bears the same relationship to the total amount of such
payment of interest as the Incremental Rate, if any, in respect of such Mortgage
Loan bears to the Mortgage Interest Rate shall be allocated to the Incremental
Interest with respect thereto.
INCREMENTAL RATE: For an Incremental Rate Mortgage Loan, the per annum
increase to the initial Mortgage Interest Rate set forth in the addendum to the
related Mortgage Note, which increase takes effect upon the occurrence of
certain specified conditions prior to the first Adjustment Date and remains in
effect until the first Adjustment Date.
INCREMENTAL RATE MORTGAGE LOAN: A Mortgage Loan for which the related
Mortgage Note includes an addendum that allows for an increase to the initial
Mortgage Interest Rate upon the occurrence of certain specified conditions.
INDEX: With respect to any adjustable rate Mortgage Loan, the index
identified on the Mortgage Loan Schedule and set forth in the related Mortgage
Note for the purpose of calculating the interest thereon.
INSURANCE PROCEEDS: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged Property.
INTEREST ONLY MORTGAGE LOAN: A Mortgage Loan for which an interest-only
payment feature is allowed during the interest-only period set forth in the
related Mortgage Note.
LENDER PAID MORTGAGE INSURANCE POLICY OR LPMI POLICY: A PMI Policy for
which the Company pays all premiums from its own funds, without reimbursement
therefor.
LIQUIDATION PROCEEDS: Cash received in connection with the liquidation
of a defaulted Mortgage Loan, whether through the sale or assignment of such
Mortgage Loan, trustee's sale, foreclosure sale or otherwise, or the sale of the
related Mortgaged Property if the Mortgaged Property is acquired in satisfaction
of the Mortgage Loan.
LOAN-TO-VALUE RATIO OR LTV: With respect to any Mortgage Loan, the
ratio of the original loan amount of the Mortgage Loan at its origination
(unless otherwise indicated) to the Appraised Value of the Mortgaged Property.
MERS: Mortgage Electronic Registration Systems, Inc., a Delaware
corporation, or any successor in interest thereto.
MERS MORTGAGE LOAN: Any Mortgage Loan registered with MERS on the MERS
System
MERS SYSTEM: The system of recording transfers of mortgages
electronically maintained by MERS.
MIN: Mortgage Identification Number used to identify mortgage loans
registered under MERS.
MONTHLY ADVANCE: The portion of each Monthly Payment that is delinquent
with respect to each Mortgage Loan at the close of business on the Determination
Date, required to be advanced by the Company pursuant to Section 5.03 on the
Business Day immediately preceding the Remittance Date of the related month.
MONTHLY PAYMENT: The scheduled monthly payment of principal and
interest on a Mortgage Loan or in the case of an Interest Only Mortgage Loan,
payments of (i) interest, or (ii) principal and interest, if applicable, on a
Mortgage Loan.
MORTGAGE: The mortgage, deed of trust or other instrument securing a
Mortgage Note, which creates a first lien on an unsubordinated estate in fee
simple in real property securing the Mortgage Note or the Pledge Agreement
securing the Mortgage Note for a Cooperative Loan.
MORTGAGE IMPAIRMENT INSURANCE POLICY: A mortgage impairment or blanket
hazard insurance policy as described in Section 4.11.
MORTGAGE INTEREST RATE: The annual rate of interest borne on a Mortgage
Note in accordance with the provisions of the Mortgage Note.
MORTGAGE LOAN: An individual mortgage loan which is the subject of this
Agreement, each Mortgage Loan originally sold and subject to this Agreement
being identified on the Mortgage Loan Schedule, which Mortgage Loan includes
without limitation the Retained Mortgage File, the Custodial Mortgage File, the
Monthly Payments, Principal Prepayments, Liquidation Proceeds, Condemnation
Proceeds, Insurance Proceeds, REO Disposition Proceeds and all other rights,
benefits, proceeds and obligations arising from or in connection with such
Mortgage Loan.
MORTGAGE LOAN DOCUMENTS: With respect to a Mortgage Loan, the original
related Mortgage Note with applicable addenda and riders, the original related
Security Instrument and the originals of any required addenda and riders, the
original related Assignment and any original intervening related Assignments,
the original related title insurance policy and evidence of the related PMI
Policy, if any.
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.
MORTGAGE LOAN SCHEDULE: With respect to each Transaction, a schedule of
Mortgage Loans, which shall be attached to the related Assignment and Conveyance
Agreement, setting forth the following information with respect to each Mortgage
Loan: (1) the Company's Mortgage Loan number; (2) the city state and zip code of
the Mortgaged Property; (3) a code indicating whether the Mortgaged Property is
a single family residence, two-family residence, three-family residence,
four-family residence, a Cooperative Loan, planned unit development or
condominium; (4) the current Mortgage Interest Rate; (5) the current net
Mortgage Interest Rate; (6) the current Monthly Payment; (7) the Gross Margin;
(8) the original term to maturity; (9) the scheduled maturity date; (10) the
principal balance of the Mortgage Loan as of the related Cut-off Date after
deduction of payments of principal due on or before the related Cut-off Date
whether or not collected; (11) the Loan-to-Value; (12) the next Adjustment Date;
(13) the lifetime Mortgage Interest Rate cap; (14) whether the Mortgage Loan is
convertible or not; (15) a code indicating the mortgage guaranty insurance
company; (16) a code indicating whether the Mortgage Loan contains pledged
assets; (17) a code indicating whether the Mortgage Loan has balloon payments;
(18) a code indicating whether the Mortgage Loan is an Interest Only Mortgage
Loan; (16) a field indicating whether the Mortgage Loan is a Home Loan; and (17)
the Servicing Fee.
MORTGAGE NOTE: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
MORTGAGED PROPERTY: The real property securing repayment of the debt
evidenced by a Mortgage Note, or with respect to a Cooperative Loan, the
Cooperative Apartment.
MORTGAGOR: The obligor on a Mortgage Note.
OFFICER'S CERTIFICATE: A certificate signed by the Chairman of the
Board or the Vice Chairman of the Board or the President or a Vice President or
an Assistant Vice President and certified by the Treasurer or the Secretary or
one of the Assistant Treasurers or Assistant Secretaries of the Company, and
delivered to the Purchaser as required by this Agreement.
OPINION OF COUNSEL: A written opinion of counsel, who may be an
employee of the Company, reasonably acceptable to the Purchaser.
PERIODIC INTEREST RATE CAP: As to each adjustable rate Mortgage Loan,
the maximum increase or decrease in the Mortgage Interest Rate on any Adjustment
Date pursuant to the terms of the Mortgage Note.
PERSON: Any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization, government or any agency or political subdivision thereof.
PLEDGE AGREEMENT: With respect to a Cooperative Loan, the specific
agreement creating a first lien on and pledge of the Cooperative Shares and the
appurtenant Proprietary Lease.
PLEDGE INSTRUMENTS: With respect to a Cooperative Loan, the Stock
Power, the Assignment of the Proprietary Lease and the Assignment of the
Mortgage Note and Pledge Agreement.
PMI POLICY: A policy of primary mortgage guaranty insurance evidenced
by an electronic form and certificate number issued by a Qualified Insurer, as
required by this Agreement with respect to certain Mortgage Loans.
PRIME RATE: The prime rate announced to be in effect from time to time,
as published as the average rate in THE WALL STREET JOURNAL.
PRINCIPAL PREPAYMENT: Any payment or other recovery of principal on a
Mortgage Loan which is received in advance of its scheduled Due Date, including
any prepayment penalty or premium thereon and which is not accompanied by an
amount of interest representing scheduled interest due on any date or dates in
any month or months subsequent to the month of prepayment.
PRINCIPAL PREPAYMENT PERIOD: The month preceding the month in which the
related Remittance Date occurs.
PROJECT: With respect to a Cooperative Loan, all real property owned by
the related Cooperative including the land, separate dwelling units and all
common areas.
PROPRIETARY LEASE: With respect to a Cooperative Loan, a lease on a
Cooperative Apartment evidencing the possessory interest of the Mortgagor in
such Cooperative Apartment.
PURCHASER: EMC Mortgage Corporation, or its successor in interest or
any successor to the Purchaser under this Agreement as herein provided.
PURCHASE PRICE: The purchase price for each Loan Package shall be as
stated in the related Commitment Letter.
QUALIFIED CORRESPONDENT: Any Person from which the Company purchased
Mortgage Loans, provided that the following conditions are satisfied: (i) such
Mortgage Loans were originated pursuant to an agreement between the Company and
such Person that contemplated that such person would underwrite mortgage loans
from time to time, for sale to the Company, in accordance with underwriting
guidelines designated by the Company ("Designated Guidelines") or guidelines
that do not vary materially from such Designated Guidelines; (ii) such Mortgage
Loans were in fact underwritten as described in clause (i) above and were
acquired by the Company within 180 days after origination; (iii) either (x) the
Designated Guidelines were, at the time such Mortgage Loans were originated,
used by the Company in origination of mortgage loans of the same type as the
Mortgage Loans for the Company's own account or (y) the Designated Guidelines
were, at the time such Mortgage Loans were underwritten, designated by the
Company on a consistent basis for use by lenders in originating mortgage loans
to be purchased by the Company; and (iv) the Company employed, at the time such
Mortgage Loans were acquired by the Company, pre-purchased or post-purchased
quality assurance procedures (which may involve, among other things, review of a
sample or mortgage loans purchased during a particular time period or through
particular channels) designed to ensure that Persons from which it purchased
mortgage loans properly applied the underwriting criteria designated by the
Company.
QUALIFIED DEPOSITORY: A deposit account or accounts maintained with a
federal or state chartered depository institution the deposits in which are
insured by the FDIC to the applicable limits and the short-term unsecured debt
obligations of which (or, in the case of a depository institution that is a
subsidiary of a holding company, the short-term unsecured debt obligations of
such holding company) are rated A-1 by Standard & Poor's Ratings Group or
Prime-1 by ▇▇▇▇▇'▇ Investors Service, Inc. (or a comparable rating if another
rating agency is specified by the Purchaser by written notice to the Company) at
the time any deposits are held on deposit therein.
QUALIFIED INSURER: A mortgage guaranty insurance company duly
authorized and licensed where required by law to transact mortgage guaranty
insurance business and approved as an insurer by ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac.
QUALIFIED SUBSTITUTE MORTGAGE LOAN: A mortgage loan eligible to be
substituted by the Company for a Deleted Mortgage Loan which must, on the date
of such substitution, (i) have an outstanding principal balance, after deduction
of all scheduled payments due in the month of substitution (or in the case of a
substitution of more than one mortgage loan for a Deleted Mortgage Loan, an
aggregate principal balance), not in excess of the Stated Principal Balance of
the Deleted Mortgage Loan; (ii) have a Mortgage Loan Remittance Rate not less
than and not more than two percent (2%) greater than the Mortgage Loan
Remittance Rate of the Deleted Mortgage Loan; (iii) have a remaining term to
maturity not greater than and not more than one year less than that of the
Deleted Mortgage Loan; (iv) be of the same type as the Deleted Mortgage Loan and
(v) comply with each representation and warranty set forth in Sections 3.01 and
3.02.
RATING AGENCY/AGENCIES: Any nationally recognized statistical Rating
Agency, or its successors, including Standard & Poor's, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, ▇▇▇▇▇'▇ Investors Service, Inc. and Fitch Ratings.
RECOGNITION AGREEMENT: An agreement whereby a Cooperative and a lender
with respect to a Cooperative Loan (i) acknowledge that such lender may make, or
intends to make, such Cooperative Loan, and (ii) make certain agreements with
respect to such Cooperative Loan.
RECONSTITUTION: Any Securitization Transaction or Whole Loan Transfer.
RECONSTITUTION AGREEMENT: The agreement or agreements entered into by
the Company and the Purchaser and/or certain third parties on the Reconstitution
Date or Dates with respect to any or all of the Mortgage Loans serviced
hereunder, in connection with a Whole Loan Transfer or Securitization
Transaction.
RECONSTITUTION DATE: The date on which any or all of the Mortgage Loans
serviced under this Agreement may be removed from this Agreement and
reconstituted as part of a Securitization Transaction, Agency Transfer or Whole
Loan Transfer pursuant to Section 9.01 hereof. The Reconstitution Date shall be
such date as the Purchaser shall designate.
REGULATION AB: Subpart 229.1100 - Asset Backed Securities (Regulation
AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from time to
time, and subject to such clarification and interpretation as have been provided
by the Commission in the adopting release (Asset-Backed Securities, Securities
Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005) or by the
staff of the Commission, or as may be provided by the Commission or its staff
from time to time.
REMIC: A "real estate mortgage investment conduit" within the meaning
of Section 860D of the Code.
REMIC PROVISIONS: Provisions of the federal income tax law relating to
a REMIC, which appear at Section 860A through 860G of Subchapter M of Chapter 1,
Subtitle A of the Code, and related provisions, regulations, rulings or
pronouncements promulgated thereunder, as the foregoing may be in effect from
time to time.
REMITTANCE DATE: The 18th day (or if such 18th day is not a Business
Day, the first Business Day immediately following) of any month.
REO DISPOSITION: The final sale by the Company of any REO Property.
REO DISPOSITION PROCEEDS: All amounts received with respect to an REO
Disposition pursuant to Section 4.16.
REO PROPERTY: A Mortgaged Property acquired by the Company on behalf of
the Purchaser through foreclosure or by deed in lieu of foreclosure, as
described in Section 4.16.
REPURCHASE PRICE: Unless agreed otherwise by the Purchaser and the
Company, a price equal to (i) the Stated Principal Balance of the Mortgage Loan
plus (ii) interest on such Stated Principal Balance at the Mortgage Loan
Remittance Rate from the date on which interest has last been paid and
distributed to the Purchaser through the last day of the month in which such
repurchase takes place, less amounts received or advanced in respect of such
repurchased Mortgage Loan which are being held in the Custodial Account for
distribution in the month of repurchase.
RETAINED MORTGAGE FILE: The items referred to as items (3), (6), (7),
(8) and (9) in Exhibit C annexed hereto with respect to a particular Mortgage
Loan that are not required to be delivered to the Custodian pursuant to this
Agreement, and any additional documents required to be added to the Retained
Mortgage File pursuant to this Agreement.
SECURITIES ACT: The Securities Act of 1933, as amended.
SECURITIZATION TRANSACTION: Any transaction involving either (a) a sale
or other transfer of some or all of the Mortgage Loans directly or indirectly to
an issuing entity in connection with an issuance of publicly offered or
privately placed, rated or unrated mortgage-backed securities or (b) an issuance
of publicly offered or privately placed, rated or unrated securities, the
payments on which are determined primarily by reference to one or more
portfolios of residential mortgage loans consisting, in whole or in part, of
some or all of the Mortgage Loans.
SERVICER: As defined in Section 9.01(e)(iii).
SERVICING ADVANCES: All customary, reasonable and necessary "out of
pocket" costs and expenses other than Monthly Advances (including reasonable
attorney's fees and disbursements) incurred in the performance by the Company of
its servicing obligations, including, but not limited to, the cost of (a) the
preservation, restoration and protection of the Mortgaged Property, (b) any
enforcement or judicial proceedings, including foreclosures, (c) the management
and liquidation of any REO Property and (d) compliance with the obligations
under Section 4.08 and 4.10 (excluding the Company's obligations to pay the
premiums on LPMI Policies).
SERVICING CRITERIA: The "servicing criteria" set forth in Item 1122(d)
of Regulation AB, as such may be amended from time to time.
SERVICING FEE: With respect to each Mortgage Loan, the amount of the
annual fee the Purchaser shall pay to the Company, which shall, for a period of
one full month, be equal to one-twelfth of the product of (a) the Servicing Fee
Rate and (b) the outstanding principal balance of such Mortgage Loan. Such fee
shall be payable monthly, computed on the basis of the same principal amount and
period respecting which any related interest payment on a Mortgage Loan is
received. The obligation of the Purchaser to pay the Servicing Fee is limited
to, and the Servicing Fee is payable solely from, the interest portion
(including recoveries with respect to interest from Liquidation Proceeds, to the
extent permitted by Section 4.05) of such Monthly Payment collected by the
Company, or as otherwise provided under Section 4.05.
SERVICING FEE RATE: The per annum percentage for each Mortgage Loan, as
stated in the Commitment Letter.
SERVICING FILE: With respect to each Mortgage Loan, the file retained
by the Company consisting of originals of all documents in the Retained Mortgage
File which are not delivered to the Custodian and copies of the Mortgage Loan
Documents listed in the Custodial Agreement the originals of which are delivered
to the Custodian pursuant to Section 2.03.
SERVICING OFFICER: Any officer of the Company involved in or
responsible for the administration and servicing of the Mortgage Loans whose
name appears on a list of servicing officers furnished by the Company to the
Purchaser upon request, as such list may from time to time be amended.
STATED PRINCIPAL BALANCE: As to each Mortgage Loan, (i) the principal
balance of the Mortgage Loan at the related Cut-off Date after giving effect to
payments of principal due on or before such date, whether or not received, minus
(ii) all amounts previously distributed to the Purchaser with respect to the
related Mortgage Loan representing payments or recoveries of principal or
advances in lieu thereof.
STATIC POOL INFORMATION: Static pool information as described in Item
1105(a)(1)-(3) and 1105(c) of Regulation AB.
STOCK CERTIFICATE: With respect to a Cooperative Loan, a certificate
evidencing ownership of the Cooperative Shares issued by the Cooperative.
STOCK POWER: With respect to a Cooperative Loan, an assignment of the
Stock Certificate or an assignment of the Cooperative Shares issued by the
Cooperative.
SUBCONTRACTOR: Any vendor, subcontractor or other Person that is not
responsible for the overall servicing (as "servicing" is commonly understood by
participants in the mortgage-backed securities market) of Mortgage Loans but
performs one or more discrete functions identified in Item 1122(d) of Regulation
AB with respect to Mortgage Loans under the direction or authority of the
Company or a Subservicer.
SUBSERVICER: Any Person that services Mortgage Loans on behalf of the
Company or any Subservicer and is responsible for the performance (whether
directly or through Subservicers or Subcontractors) of a substantial portion of
the material servicing functions required to be performed by the Company under
this Agreement or any Reconstitution Agreement that are identified in Item
1122(d) of Regulation AB.
SUBSIDY ACCOUNT: An account maintained by the Company specifically to
hold all Subsidy Funds to be applied to individual Subsidy Loans.
SUBSIDY FUNDS: With respect to any Subsidy Loans, funds contributed by
the employer of a Mortgagor in order to reduce the payments required from the
Mortgagor for a specified period in specified amounts.
SUBSIDY LOAN: Any Mortgage Loan subject to a temporary interest subsidy
agreement pursuant to which the monthly interest payments made by the related
Mortgagor will be less than the scheduled monthly interest payments on such
Mortgage Loan, with the resulting difference in interest payments being provided
by the employer of the Mortgagor. Each Subsidy Loan will be identified as such
in the related Electronic Data File.
THIRD-PARTY ORIGINATOR: Each Person, other than a Qualified
Correspondent, that originated Mortgage Loans acquired by the Company.
TIME$AVER(R) MORTGAGE LOAN: A Mortgage Loan which has been refinanced
pursuant to a Company program that allows a rate/term refinance of an existing
Company serviced loan with minimal documentation.
WHOLE LOAN TRANSFER: Any sale or transfer of some or all of the
Mortgage Loans by the Purchaser to a third party, which sale or transfer is not
a Securitization Transaction or Agency Transfer.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; POSSESSION OF MORTGAGE FILES; BOOKS AND RECORDS;
CUSTODIAL AGREEMENT; DELIVERY OF DOCUMENTS
Section 2.01 CONVEYANCE OF MORTGAGE LOANS; POSSESSION OF CUSTODIAL
MORTGAGE FILES; MAINTENANCE OF RETAINED MORTGAGE FILES AND SERVICING FILES.
Pursuant to an Assignment and Conveyance Agreement, on the related
Closing Date, the Company, simultaneously with the payment of the Purchase Price
by the Purchaser, shall thereby sell, transfer, assign, set over and convey to
the Purchaser, without recourse, but subject to the terms of this Agreement and
the related Assignment and Conveyance Agreement, all the right, title and
interest of the Company in and to the Mortgage Loans listed on the respective
Mortgage Loan Schedule annexed to such Assignment and Conveyance Agreement,
together with the Retained Mortgage Files and Custodial Mortgage Files and all
rights and obligations arising under the documents contained therein. Pursuant
to Section 2.03, the Company shall deliver the Custodial Mortgage File for each
Mortgage Loan comprising the related Loan Package to the Custodian.
The contents of each Retained Mortgage File not delivered to the
Custodian are and shall be held in trust by the Company for the benefit of the
Purchaser as the owner thereof. The Company shall maintain a Servicing File
consisting of a copy of the contents of each Custodial Mortgage File and the
originals of the documents in each Retained Mortgage File not delivered to the
Custodian. The possession of each Retained Mortgage File and Servicing File by
the Company is at the will of the Purchaser for the sole purpose of servicing
the related Mortgage Loan, and such retention and possession by the Company is
in a custodial capacity only. Upon the sale of the Mortgage Loans the ownership
of each Mortgage Note, the related Mortgage and the related Custodial Mortgage
File and Servicing File shall vest immediately in the Purchaser, and the
ownership of all records and documents with respect to the related Mortgage Loan
prepared by or which come into the possession of the Company shall vest
immediately in the Purchaser and shall be retained and maintained by the
Company, in trust, at the will of the Purchaser and only in such custodial
capacity. The Company shall release its custody of the contents of any Servicing
File only in accordance with written instructions from the Purchaser, unless
such release is required as incidental to the Company's servicing of the
Mortgage Loans or is in connection with a repurchase of any Mortgage Loan
pursuant to Section 3.03 or 6.02. All such costs associated with the release,
transfer and re-delivery to the Company shall be the responsibility of the
Purchaser other than any related recording costs (especially in instances of
breach).
In addition, in connection with the assignment of any MERS Mortgage
Loan, the Company agrees that it will cause, the MERS(R) System to indicate that
such Mortgage Loans have been assigned by the Company to the Purchaser in
accordance with this Agreement by including (or deleting, in the case of
Mortgage Loans which are repurchased in accordance with this Agreement) in such
computer files the information required by the MERS(R) System to identify the
Purchaser as beneficial owner of such Mortgage Loans.
Section 2.02 BOOKS AND RECORDS; TRANSFERS OF MORTGAGE LOANS.
From and after the sale of the Mortgage Loans to the Purchaser in the
related Loan Package on each Closing Date, all rights arising out of such
Mortgage Loans including but not limited to all funds received on or in
connection with such Mortgage Loans, shall be received and held by the Company
in trust for the benefit of the Purchaser as owner of such Mortgage Loans, and
the Company shall retain record title to the related Mortgages for the sole
purpose of facilitating the servicing and the supervision of the servicing of
such Mortgage Loans.
The sale of each Mortgage Loan shall be reflected on the Company's
balance sheet and other financial statements as a sale of assets by the Company.
The Company shall be responsible for maintaining, and shall maintain, a complete
set of books and records for each Mortgage Loan which shall be marked clearly to
reflect the ownership of each Mortgage Loan by the Purchaser. In particular, the
Company shall maintain in its possession, available for inspection by the
Purchaser, or its designee, and shall deliver to the Purchaser upon demand,
evidence of compliance with all federal, state and local laws, rules and
regulations, and requirements of ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac, including but not
limited to documentation as to the method used in determining the applicability
of the provisions of the Flood Disaster Protection Act of 1973, as amended, to
the Mortgaged Property, documentation evidencing insurance coverage and
eligibility of any condominium project for approval by ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac
and records of periodic inspections as required by Section 4.13. To the extent
that original documents are not required for purposes of realization of
Liquidation Proceeds or Insurance Proceeds, documents maintained by the Company
may be in the form of microfilm or microfiche or such other reliable means of
recreating original documents, including but not limited to, optical imagery
techniques so long as the Company complies with the requirements of the ▇▇▇▇▇▇
Mae Selling and Servicing Guide, as amended from time to time.
The Company shall 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 such Mortgage
Loan and thereafter in accordance with applicable laws and regulations.
The Company shall keep at its servicing office books and records in
which, subject to such reasonable regulations as it may prescribe, the Company
shall note transfers of Mortgage Loans. No transfer of a Mortgage Loan 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 the Mortgage Loans unless the
books and records show such Person as the owner of the Mortgage Loan. The
Purchaser may, subject to the terms of this Agreement, sell and transfer one or
more of the Mortgage Loans. The Purchaser also shall advise the Company of the
transfer. Upon receipt of notice of the transfer, the Company shall ▇▇▇▇ its
books and records to reflect the ownership of the Mortgage Loans of such
assignee, and shall release the previous Purchaser from its obligations
hereunder with respect to the Mortgage Loans sold or transferred. Such
notification of a transfer shall include a final loan schedule which shall be
received by the Company no fewer than five (5) Business Days before the last
Business Day of the month. If such notification is not received as specified
above, the Company's duties to remit and report as required by Section 5 shall
begin with the next Due Period.
Section 2.03 CUSTODIAL AGREEMENT; DELIVERY OF DOCUMENTS.
On each Closing Date with respect to each Mortgage Loan comprising the
related Loan Package, the Company shall deliver and release to the Custodian the
related Custodial Mortgage File as set forth in Exhibit C attached hereto.
The Custodian shall certify its receipt of any Mortgage Loan Documents
actually received on or prior to such Closing Date and as required to be
delivered pursuant to the Custodial Agreement, as evidenced by the Initial
Certification of the Custodian in the form annexed to the Custodial Agreement.
The Purchaser will be responsible for the fees and expenses of the Custodian.
Upon the Purchaser's request, the Company shall deliver to Purchaser or
its designee within ten (10) days after such request such contents of the
Retained Mortgage file so requested. In the event that the company fails to
deliver to the Purchaser or its designee the requested contents of the Retained
Mortgage File within such ten-day period, and if the Company does not cure such
failure within five (5) days following receipt of written notification of such
failure, the Company shall repurchase each related Mortgage Loan at the price
and in the manner specified in Section 3.03.
The Company shall forward to the Custodian original documents
evidencing an assumption, modification, consolidation or extension of any
Mortgage Loan entered into in accordance with Section 4.01 or 6.01 within one
week of their execution, provided, however, that the Company shall provide the
Custodian with a certified true copy of any such document submitted for
recordation within ten (10) days of its execution, and shall provide the
original of any document submitted for recordation or a copy of such document
certified by the appropriate public recording office to be a true and complete
copy of the original within sixty days of its submission for recordation.
In the event the public recording office is delayed in returning any
original document which the Company is required to deliver at any time to the
Custodian in accordance with the terms of the Custodial Agreement or which the
Company is required to maintain in the related Retained Mortgage File, the
Company shall deliver to the Custodian or to the Retained Mortgage File, as
applicable, within 240 days of its submission for recordation, a copy of such
document and an Officer's Certificate, which shall (i) identify the recorded
document; (ii) state that the recorded document has not been delivered to the
Custodian due solely to a delay by the public recording office, (iii) state the
amount of time generally required by the applicable recording office to record
and return a document submitted for recordation, and (iv) specify the date the
applicable recorded document will be delivered to the Custodian. The Company
will be required to deliver such document to the Custodian or to the Retained
Mortgage File, as applicable, by the date specified in (iv) above. An extension
of the date specified in (iv) above may be requested from the Purchaser, which
consent shall not be unreasonably withheld.
In the event that new, replacement, substitute or additional Stock
Certificates are issued with respect to existing Cooperative Shares, the Company
immediately shall deliver to the Custodian the new Stock Certificates, together
with the related Stock Powers in blank. Such new Stock Certificates shall be
subject to the related Pledge Instruments and shall be subject to all of the
terms, covenants and conditions of this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES REMEDIES AND BREACH
Section 3.01 COMPANY REPRESENTATIONS AND WARRANTIES.
The Company hereby represents and warrants to the Purchaser that, as of
the related Closing Date:
(a) DUE ORGANIZATION AND AUTHORITY.
The Company is a national banking association duly organized,
validly existing and in good standing under the laws of the
United States and has all licenses necessary to carry on its
business as now being conducted and is licensed, qualified and
in good standing in each state where a Mortgaged Property is
located if the laws of such state require licensing or
qualification in order to conduct business of the type
conducted by the Company, and in any event the Company is in
compliance with the laws of any such state to the extent
necessary to ensure the enforceability of the related Mortgage
Loan and the servicing of such Mortgage Loan in accordance
with the terms of this Agreement; the Company has the full
power and authority to execute and deliver this Agreement and
to perform in accordance herewith; the execution, delivery and
performance of this Agreement (including all instruments of
transfer to be delivered pursuant to this Agreement) by the
Company and the consummation of the transactions contemplated
hereby have been duly and validly authorized; this Agreement
evidences the valid, binding and enforceable obligation of the
Company; and all requisite action has been taken by the
Company to make this Agreement valid and binding upon the
Company in accordance with its terms;
(b) ORDINARY COURSE OF BUSINESS.
The consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the
Company, who is in the business of selling and servicing
loans, and the transfer, assignment and conveyance of the
Mortgage Notes and the Mortgages by the Company pursuant to
this Agreement are not subject to the bulk transfer or any
similar statutory provisions in effect in any applicable
jurisdiction;
(c) NO CONFLICTS.
Neither the execution and delivery of this Agreement, the
acquisition of the Mortgage Loans by the Company, the sale of
the Mortgage Loans to the Purchaser or the transactions
contemplated hereby, nor the fulfillment of or compliance with
the terms and conditions of this Agreement will conflict with
or result in a breach of any of the terms, articles of
incorporation or by-laws or any legal restriction or any
agreement or instrument to which the Company is now a party or
by which it is bound, or constitute a default or result in the
violation of any law, rule, regulation, order, judgment or
decree to which the Company or its property is subject, or
impair the ability of the Purchaser to realize on the Mortgage
Loans, or impair the value of the Mortgage Loans;
(d) ABILITY TO SERVICE.
The Company is an approved seller/servicer of conventional
residential mortgage loans for ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac, with
the facilities, procedures, and experienced personnel
necessary for the sound servicing of mortgage loans of the
same type as the Mortgage Loans. The Company is in good
standing to sell mortgage loans to and service mortgage loans
for ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac, and no event has occurred,
including but not limited to a change in insurance coverage,
which would make the Company unable to comply with ▇▇▇▇▇▇ Mae
or ▇▇▇▇▇▇▇ Mac eligibility requirements or which would require
notification to either ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac;
(e) REASONABLE SERVICING FEE.
The Company acknowledges and agrees that the Servicing Fee
represents reasonable compensation for performing such
services and that the entire Servicing Fee shall be treated by
the Company, for accounting and tax purposes, as compensation
for the servicing and administration of the Mortgage Loans
pursuant to this Agreement;
(f) ABILITY TO PERFORM.
The Company does not believe, nor does it have any reason or
cause to believe, that it cannot perform each and every
covenant contained in this Agreement. The Company is solvent
and the sale of the Mortgage Loans will not cause the Company
to become insolvent. The sale of the Mortgage Loans is not
undertaken to hinder, delay or defraud any of the Company's
creditors;
(g) NO LITIGATION PENDING.
There is no action, suit, proceeding or investigation pending
or threatened against the Company which, either in any one
instance or in the aggregate, may result in any material
adverse change in the business, operations, financial
condition, properties or assets of the Company, or in any
material impairment of the right or ability of the Company to
carry on its business substantially as now conducted, or in
any material liability on the part of the Company, or which
would draw into question the validity of this Agreement or the
Mortgage Loans or of any action taken or to be contemplated
herein, or which would be likely to impair materially the
ability of the Company to perform under the terms of this
Agreement;
(h) NO CONSENT REQUIRED.
No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution,
delivery and performance by the Company of or compliance by
the Company with this Agreement or the sale of the Mortgage
Loans as evidenced by the consummation of the transactions
contemplated by this Agreement, or if required, such approval
has been obtained prior to the related Closing Date;
(i) SELECTION PROCESS.
The Mortgage Loans were selected from among either the
outstanding fixed rate or adjustable rate one- to four-family
mortgage loans in the Company's mortgage banking portfolio at
the related Closing Date as to which the representations and
warranties set forth in Section 3.02 could be made and such
selection was not made in a manner so as to affect adversely
the interests of the Purchaser;
(j) NO UNTRUE INFORMATION.
Neither this Agreement nor any statement, report or other
document furnished or to be furnished pursuant to this
Agreement or in connection with the transactions contemplated
hereby contains any untrue statement of fact or omits to state
a fact necessary to make the statements contained therein not
misleading;
(k) SALE TREATMENT.
The Company has determined that the disposition of the
Mortgage Loans pursuant to this Agreement will be afforded
sale treatment for accounting and tax purposes;
(l) NO MATERIAL CHANGE.
There has been no material adverse change in the business,
operations, financial condition or assets of the Company since
the date of the Company's most recent financial statements;
(m) NO BROKERS' FEES.
The Company has not dealt with any broker, investment banker,
agent or other Person that may be entitled to any commission
or compensation in the connection with the sale of the
Mortgage Loans; and
(n) MERS.
The Company is a member of MERS in good standing.
Section 3.02 REPRESENTATIONS AND WARRANTIES REGARDING INDIVIDUAL
MORTGAGE LOANS.
As to each Mortgage Loan, the Company hereby represents and warrants to
the Purchaser that as of the related Closing Date:
(a) MORTGAGE LOANS AS DESCRIBED.
The information set forth in the respective Mortgage Loan
Schedule and the information contained on the respective
Electronic Data File delivered to the Purchaser is true and
correct;
(b) PAYMENTS CURRENT.
All payments required to be made up to the related Cut-off
Date for the Mortgage Loan under the terms of the Mortgage
Note have been made and credited. No payment under any
Mortgage Loan has been thirty (30) days delinquent more than
one time within twelve (12) months prior to the related
Closing Date;
(c) NO OUTSTANDING CHARGES.
There are no defaults in complying with the terms of the
Mortgages, and all taxes, governmental assessments, insurance
premiums, leasehold payments, water, sewer and municipal
charges, which previously became due and owing have been paid,
or an escrow of funds has been established in an amount
sufficient to pay for every such item which remains unpaid and
which has been assessed but is not yet due and payable. The
Seller has not advanced funds, or induced, solicited directly
or indirectly, the payment of any amount required under the
Mortgage Loan, except for interest accruing from the date of
the Mortgage Note or date of disbursement of the Mortgage Loan
proceeds, whichever is later, to the day which precedes by one
month the Due Date of the first installment of principal and
interest;
(d) ORIGINAL TERMS UNMODIFIED.
The terms of the Mortgage Note and Mortgage have not been
impaired, waived, altered or modified in any respect, except
by a written instrument which has been recorded, if necessary
to protect the interests of the Purchaser and which has been
delivered to the Custodian. The substance of any such waiver,
alteration or modification has been approved by the issuer of
any related PMI Policy and the title insurer, to the extent
required by the policy, and its terms are reflected on the
related Mortgage Loan Schedule. No Mortgagor has been
released, in whole or in part, except in connection with an
assumption agreement approved by the issuer of any related PMI
Policy and the title insurer, to the extent required by the
policy, and which assumption agreement was delivered to the
Custodian pursuant to the terms of the Custodial Agreement;
(e) NO DEFENSES.
The Mortgage Loan is not subject to any right of rescission,
set-off, counterclaim or defense, including without limitation
the defense of usury, nor will the operation of any of the
terms of the Mortgage Note or the Mortgage, or the exercise of
any right thereunder, render either the Mortgage Note or the
Mortgage unenforceable, in whole or in part, or subject to any
right of rescission, set-off, counterclaim or defense,
including without limitation the defense of usury, and no such
right of rescission, set-off, counterclaim or defense has been
asserted with respect thereto;
(f) NO SATISFACTION OF MORTGAGE.
The Mortgage has not been satisfied, canceled, subordinated or
rescinded, in whole or in part, and the Mortgaged Property has
not been released from the lien of the Mortgage, in whole or
in part, nor has any instrument been executed that would
effect any such release, cancellation, subordination or
rescission;
(g) VALIDITY OF MORTGAGE DOCUMENTS.
The Mortgage Note and the Mortgage and related documents are
genuine, and each is the legal, valid and binding obligation
of the maker thereof enforceable in accordance with its terms.
All parties to the Mortgage Note and the Mortgage had legal
capacity to enter into the Mortgage Loan and to execute and
deliver the Mortgage Note and the Mortgage, and the Mortgage
Note and the Mortgage have been duly and properly executed by
such parties;
With respect to each Cooperative Loan, the Mortgage Note, the
Mortgage, the Pledge Agreement, and related documents are
genuine, and each is the legal, valid and binding obligation
of the maker thereof enforceable in accordance with its terms.
All parties to the Mortgage Note, the Mortgage, the Pledge
Agreement, the Proprietary Lease, the Stock Power, Recognition
Agreement and the Assignment of Proprietary Lease had legal
capacity to enter into the Mortgage Loan and to execute and
deliver such documents, and such documents have been duly and
properly executed by such parties;
(h) NO FRAUD.
No error, omission, misrepresentation, negligence, fraud or
similar occurrence with respect to a Mortgage Loan has taken
place on the part of the Company, or the Mortgagor, or to the
best of the Company's knowledge, any appraiser, any builder,
or any developer, or any other party involved in the
origination of the Mortgage Loan or in the application of any
insurance in relation to such Mortgage Loan;
(i) COMPLIANCE WITH APPLICABLE LAWS.
Any and all requirements of any federal, state or local law
including, without limitation, usury, truth-in-lending, real
estate settlement procedures, consumer credit and privacy
protection, equal credit opportunity, disclosure or predatory
and abusive lending laws applicable to the Mortgage Loan have
been complied with, and the Company shall maintain in its
possession, available for the Purchaser's inspection, and
shall deliver to the Purchaser upon demand, evidence of
compliance with all such requirements. 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;
(j) LOCATION AND TYPE OF MORTGAGED PROPERTY.
The Mortgaged Property is located in the state identified in
the related Mortgage Loan Schedule and consists of a single,
contiguous parcel of real property with a detached single
family residence erected thereon, or a two- to four-family
dwelling, or an individual condominium unit in a condominium
project, or a Cooperative Apartment, or an individual unit in
a planned unit development or a townhouse, provided, however,
that any condominium project or planned unit development shall
conform with the applicable ▇▇▇▇▇▇ Mae requirements, or the
underwriting guidelines of the company, regarding such
dwellings, and no residence or dwelling is a mobile home. As
of the respective date of the appraisal for each Mortgaged
Property, any Mortgaged Property being used for commercial
purposes conforms to the underwriting guidelines of the
Company and, to the best of the Company's knowledge, since the
date of such appraisal, no portion of the Mortgage Property
has been used for commercial purposes outside of the
underwriting guidelines of the Company;
(k) VALID FIRST LIEN.
The Mortgage is a valid, subsisting and enforceable first lien
on the Mortgaged Property, including all buildings on the
Mortgaged Property and all installations and mechanical,
electrical, plumbing, heating and air conditioning systems
located in or annexed to such buildings, and all additions,
alterations and replacements made at any time with respect to
the foregoing. The lien of the Mortgage is subject only to:
(1) the lien of current real property taxes and
assessments not yet due and payable;
(2) covenants, conditions and restrictions, rights of
way, easements and other matters of the public record
as of the date of recording acceptable to mortgage
lending institutions generally and specifically
referred to in the lender's title insurance policy
delivered to the originator of the Mortgage Loan and
(i) referred to or otherwise considered in the
appraisal made for the originator of the Mortgage
Loan and (ii) which do not adversely affect the
Appraised Value of the Mortgaged Property set forth
in such appraisal; and
(3) other matters to which like properties are commonly
subject which do not materially interfere with the
benefits of the security intended to be provided by
the mortgage or the use, enjoyment, value or
marketability of the related Mortgaged Property.
Any security agreement, chattel mortgage or equivalent
document related to and delivered in connection with the
Mortgage Loan establishes and creates a valid, subsisting and
enforceable first lien and first priority security interest on
the property described therein and the Company has full right
to sell and assign the same to the Purchaser;
With respect to each Cooperative Loan, each Pledge Agreement
creates a valid, enforceable and subsisting first security
interest in the Cooperative Shares and Proprietary Lease,
subject only to (i) the lien of the related Cooperative for
unpaid assessments representing the Mortgagor's pro rata share
of the Cooperative's payments for its blanket mortgage,
current and future real property taxes, insurance premiums,
maintenance fees and other assessments to which like
collateral is commonly subject and (ii) other matters to which
like collateral is commonly subject which do not materially
interfere with the benefits of the security intended to be
provided by the Pledge Agreement; provided, however, that the
appurtenant Proprietary Lease may be subordinated or otherwise
subject to the lien of any mortgage on the Project;
(l) FULL DISBURSEMENT OF PROCEEDS.
The proceeds of the Mortgage Loan have been fully disbursed,
except for escrows established or created due to seasonal
weather conditions, and there is no requirement for future
advances thereunder. All costs, fees and expenses incurred in
making or closing the Mortgage Loan and the recording of the
Mortgage were paid, and the Mortgagor is not entitled to any
refund of any amounts paid or due under the Mortgage Note or
Mortgage;
(m) CONSOLIDATION OF FUTURE ADVANCES.
Any future advances made prior to the related Cut-off Date,
have been consolidated with the outstanding principal amount
secured by the Mortgage, and the secured principal amount, as
consolidated, bears a single interest rate and single
repayment term reflected on the related Mortgage Loan
Schedule. The lien of the Mortgage securing the consolidated
principal amount is expressly insured as having first lien
priority by a title insurance policy, an endorsement to the
policy insuring the mortgagee's consolidated interest or by
other title evidence acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac;
the consolidated principal amount does not exceed the original
principal amount of the Mortgage Loan; the Seller shall not
make future advances after the related Cut-Off Date;
(n) OWNERSHIP.
The Company is the sole owner of record and holder of the
Mortgage Loan and the related Mortgage Note and the Mortgage
are not assigned or pledged, and the Company has good and
marketable title thereto and has full right and authority to
transfer and sell the Mortgage Loan to the Purchaser. The
Company is transferring the Mortgage Loan free and clear of
any and all encumbrances, liens, pledges, equities,
participation interests, claims, charges or security interests
of any nature encumbering such Mortgage Loan;
(o) ORIGINATION/DOING BUSINESS.
The Mortgage Loan was originated by a savings and loan
association, a savings bank, a commercial bank, a credit
union, an insurance company, or similar institution which is
supervised and examined by a federal or state authority or by
a mortgagee approved by the Secretary of Housing and Urban
Development pursuant to Sections 203 and 211 of the National
Housing Act. All parties which have had any interest in the
Mortgage Loan, whether as mortgagee, assignee, pledgee or
otherwise, are (or, during the period in which they held and
disposed of such interest, were) (1) in compliance with any
and all applicable licensing requirements of the laws of the
state wherein the Mortgaged Property is located, and (2)
organized under the laws of such state, or (3) qualified to do
business in such state, or (4) federal savings and loan
associations or national banks having principal offices in
such state, or (5) not doing business in such state;
(p) LTV, PMI POLICY.
Each Mortgage Loan has an LTV as set forth in the related
Mortgage Loan Schedule and related Electronic Data File.
Except as indicated on the Electronic Data File, those
Mortgage Loans with an LTV greater than 80% at the time of
origination, a portion of the unpaid principal balance of the
Mortgage Loan is and will be insured as to payment defaults by
a PMI Policy. If the Mortgage Loan is insured by a PMI Policy
for which the Mortgage pays all premiums, the coverage will
remain in place until (i) the LTV is decreased to 78% or (ii)
the PMI Policy is otherwise terminated pursuant to the
Homeowners Protection Act of 1998, 12 USC 4901, et seq. All
provisions of such PMI Policy and LPMI Policy have been and
are being complied with, such PMI Policy and LPMI Policy is in
full force and effect, and all premiums due thereunder have
been paid. The Qualified Insurer has a claims paying ability
acceptable to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac. Any Mortgage Loan
subject to a PMI Policy obligates the Mortgagor or in the case
of an LPMI Policy, obligates the Company, thereunder to
maintain the PMI Policy or LPMI Policy and to pay all premiums
and charges in connection therewith. The Mortgage Interest
Rate for the Mortgage Loan as set forth on the related
Mortgage Loan Schedule is net of any such insurance premium.
No prior holder of the Mortgage, including the Company, has
done, by act or omission, anything which would impair the
coverage of such PMI Policy or LPMI Policy;
(q) TITLE INSURANCE.
The Mortgage Loan is covered by an ALTA lender's title
insurance policy or other generally acceptable form of policy
of insurance acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac, issued
by a title insurer acceptable to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac and
qualified to do business in the jurisdiction where the
Mortgaged Property is located, insuring the Company, its
successors and assigns, as to the first priority lien of the
Mortgage in the original principal amount of the Mortgage
Loan, subject only to the exceptions contained in clauses (1),
(2) and (3) of Paragraph (k) of this Section 3.02, and against
any loss by reason of the invalidity or unenforceability of
the lien resulting from the provisions of the Mortgage
providing for adjustment to the Mortgage Interest Rate and
Monthly Payment. The Company is the sole insured of such
lender's title insurance policy, and such lender's title
insurance policy is in full force and effect and will be in
force and effect upon the consummation of the transactions
contemplated by this Agreement. No claims have been made under
such lender's title insurance policy, and no prior holder of
the Mortgage, including the Company, has done, by act or
omission, anything which would impair the coverage of such
lender's title insurance policy;
(r) NO DEFAULTS.
There is no default, breach, violation or event of
acceleration existing under the Mortgage or the Mortgage Note
and no event which, with the passage of time or with notice
and the expiration of any grace or cure period, would
constitute a default, breach, violation or event of
acceleration, and neither the Company nor its predecessors
have waived any default, breach, violation or event of
acceleration;
(s) NO MECHANICS' LIENS.
There are no mechanics' or similar liens or claims which have
been filed for work, labor or material (and no rights are
outstanding that under the law could give rise to such liens)
affecting the related Mortgaged Property which are or may be
liens prior to, or equal or coordinate with, the lien of the
related Mortgage which are not insured against by the title
insurance policy referenced in Paragraph (q) above;
(t) LOCATION OF IMPROVEMENTS; NO ENCROACHMENTS.
Except as insured against by the title insurance policy
referenced in Paragraph (q) above, all improvements which were
considered in determining the Appraised Value of the Mortgaged
Property lay wholly within the boundaries and building
restriction lines of the Mortgaged Property and no
improvements on adjoining properties encroach upon the
Mortgaged Property. No improvement located on or being part of
the Mortgaged Property is in violation of any applicable
zoning law or regulation;
(u) PAYMENT TERMS.
Except with respect to the Interest Only Mortgage Loans,
principal payments commenced no more than 60 days after the
funds were disbursed to the Mortgagor in connection with the
Mortgage Loan. The Mortgage Loans have an original term to
maturity of not more than 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 Gross Margin, rounded up or down
to the nearest multiple of 0.125% indicated by the Mortgage
Note; provided that the Mortgage Interest Rate will not
increase or decrease by more than 2.00% on any Adjustment
Date, and will in no event exceed the maximum Mortgage
Interest Rate or be lower than the minimum Mortgage Interest
Rate listed on the Mortgage Loan Schedule for such Mortgage
Loan. Each adjustable rate Mortgage Note requires a monthly
payment which is sufficient, during the period prior to the
first adjustment to the Mortgage Interest Rate, to fully
amortize the outstanding principal balance as of the first day
of such period over the then remaining term of such Mortgage
Note and to pay interest at the related Mortgage Interest
Rate; provided however, with respect to any Interest Only
Mortgage Loans, the Mortgage Note allows a Monthly Payment of
interest only during the period prior to the first Adjustment
Date and upon the first adjustment to the Mortgage Interest
Rate, the Mortgage Note requires a Monthly Payment of
principal and interest, sufficient to fully amortize the
outstanding principal balance over the then remaining term of
such Mortgage Loan. As to each adjustable rate Mortgage Loan,
if the related Mortgage Interest Rate changes on an adjustment
date, the then outstanding principal balance will be
reamortized over the remaining life of such Mortgage Loan. No
Mortgage Loan contains terms or provisions which would result
in negative amortization;
(v) CUSTOMARY PROVISIONS.
The Mortgage contains customary and enforceable provisions
such as to render the rights and remedies of the holder
thereof adequate for the realization against the Mortgaged
Property of the benefits of the security provided thereby,
including, (i) in the case of a Mortgage designated as a deed
of trust, by trustee's sale, and (ii) otherwise by judicial
foreclosure. There is no homestead or other exemption
available to a Mortgagor which would interfere with the right
to sell the Mortgaged Property at a trustee's sale or the
right to foreclose the Mortgage;
(w) OCCUPANCY OF THE MORTGAGED PROPERTY.
As of the date of origination, the Mortgaged Property was
lawfully occupied under applicable law;
(x) NO ADDITIONAL COLLATERAL.
The Mortgage Note is not and has not been secured by any
collateral, pledged account, except as indicated on the
Electronic Data File, or other security except the lien of the
corresponding Mortgage and the security interest of any
applicable security agreement or chattel mortgage referred to
in (k) above;
(y) DEEDS OF TRUST.
In the event the Mortgage constitutes a deed of trust, a
trustee, duly qualified under applicable law to serve as such,
has been properly designated and currently so serves and is
named in the Mortgage, and no fees or expenses are or will
become payable by the Mortgagee to the trustee under the deed
of trust, except in connection with a trustee's sale after
default by the Mortgagor;
(z) ACCEPTABLE INVESTMENT.
The Company has no knowledge of any circumstances or
conditions with respect to the Mortgage Loan, the Mortgaged
Property, the Mortgagor or the Mortgagor's credit standing
that can reasonably be expected to cause private institutional
investors to regard the Mortgage Loan as an unacceptable
investment, cause the Mortgage Loan to become delinquent, or
adversely affect the value or marketability of the Mortgage
Loan;
(aa) TRANSFER OF MORTGAGE LOANS.
If the Mortgage Loan is not a MERS Mortgage Loan, the
Assignment upon the insertion of the name of the assignee and
recording information is in recordable form and is acceptable
for recording under the laws of the jurisdiction in which the
Mortgaged Property is located;
(bb) MORTGAGED PROPERTY UNDAMAGED.
The Mortgaged Property is undamaged by waste, fire, earthquake
or earth movement, windstorm, flood, tornado or other casualty
so as to affect adversely the value of the Mortgaged Property
as security for the Mortgage Loan or the use for which the
premises were intended;
(cc) COLLECTION PRACTICES; ESCROW DEPOSITS.
The origination and collection practices used with respect to
the Mortgage Loan have been in accordance with Accepted
Servicing Practices, and have been in all material respects
legal and proper. With respect to escrow deposits and Escrow
Payments, all such payments are in the possession of the
Company and there exist no deficiencies in connection
therewith for which customary arrangements for repayment
thereof have not been made. All Escrow Payments have been
collected in full compliance with state and federal law. No
escrow deposits or Escrow Payments or other charges or
payments due the Company have been capitalized under the
Mortgage Note;
(dd) NO CONDEMNATION.
There is no proceeding pending or to the best of the Company's
knowledge threatened for the total or partial condemnation of
the related Mortgaged Property;
(ee) THE APPRAISAL.
The Servicing File contains an appraisal of the related
Mortgaged Property. As to each Time$aver(R) Mortgage Loan, the
appraisal may be from the original of the existing
Company-serviced loan, which was refinanced via such
Time$aver(R) Mortgage Loan. The appraisal was conducted by an
appraiser who had no interest, direct or indirect, in the
Mortgaged Property or in any loan made on the security
thereof; and whose compensation is not affected by the
approval or disapproval of the Mortgage Loan, and the
appraisal and the appraiser both satisfy the applicable
requirements of Title XI of the Financial Institution Reform,
Recovery, and Enforcement Act of 1989 and the regulations
promulgated thereunder, all as in effect on the date the
Mortgage Loan was originated;
(ff) INSURANCE.
The Mortgaged Property securing each Mortgage Loan is insured
by an insurer acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac against
loss by fire and such hazards as are covered under a standard
extended coverage endorsement and such other hazards as are
customary in the area where the Mortgaged Property is located
pursuant to insurance policies conforming to the requirements
of Section 4.10, in an amount which is at least equal to the
lesser of (a) 100% of the insurable value, on a replacement
cost basis, of the improvements on the related Mortgaged
Property, and (b) the greater of (i) the outstanding principal
balance of the Mortgage Loan and (ii) an amount such that the
proceeds of such insurance shall be sufficient to prevent the
application to the Mortgagor or the loss payee of any
coinsurance clause under the policy. If the Mortgaged Property
is a condominium unit, it is included under the coverage
afforded by a blanket policy for the project. If the
improvements on the Mortgaged Property are in an area
identified in the Federal Register by the Federal Emergency
Management Agency as having special flood hazards, a flood
insurance policy meeting the requirements of the current
guidelines of the Federal Insurance Administration is in
effect with a generally acceptable insurance carrier, in an
amount representing coverage not less than the least of (A)
the outstanding principal balance of the Mortgage Loan, (B)
the full insurable value and (C) the maximum amount of
insurance which was available under the Flood Disaster
Protection Act of 1973, as amended. All individual insurance
policies contain a standard mortgagee clause naming the
Company and its successors and assigns as mortgagee, and all
premiums thereon have been paid. The Mortgage obligates the
Mortgagor thereunder to maintain a hazard insurance policy at
the Mortgagor's cost and expense, and on the Mortgagor's
failure to do so, authorizes the holder of the Mortgage to
obtain and maintain such insurance at such Mortgagor's cost
and expense, and to seek reimbursement therefor from the
Mortgagor. The hazard insurance policy is the valid and
binding obligation of the insurer, is in full force and
effect, and will be in full force and effect and inure to the
benefit of the Purchaser upon the consummation of the
transactions contemplated by this Agreement. The Company has
not acted or failed to act so as to impair the coverage of any
such insurance policy or the validity, binding effect and
enforceability thereof;
(gg) SERVICEMEMBERS' CIVIL RELIEF ACT.
The Mortgagor has not notified the Company, and the Company
has no knowledge of any relief requested or allowed to the
Mortgagor under the Servicemembers' Civil Relief Act, as
amended;
(hh) NO GRADUATED PAYMENTS OR CONTINGENT INTERESTS.
The Mortgage Loan is not a graduated payment mortgage loan and
the Mortgage Loan does not have a shared appreciation or other
contingent interest feature;
(ii) NO CONSTRUCTION LOANS.
No Mortgage Loan was made in connection with (i) the
construction or rehabilitation of a Mortgage Property or (ii)
facilitating the trade-in or exchange of a Mortgaged Property
other than a construction-to-permanent loan which has
converted to a permanent Mortgage Loan;
(jj) UNDERWRITING.
Each Mortgage Loan was underwritten in accordance with the
underwriting guidelines of the Company, which were in effect
at the time the Mortgage Loan was originated; and the Mortgage
Note and Mortgage are on forms acceptable to ▇▇▇▇▇▇▇ Mac or
▇▇▇▇▇▇ Mae;
(kk) BUYDOWN MORTGAGE LOANS.
With respect to each Mortgage Loan that is a Buydown Mortgage
Loan:
(i) On or before the date of origination of such Mortgage
Loan, the Company and the Mortgagor, or the Company,
the Mortgagor and the seller of the Mortgaged
Property or a third party entered into a Buydown
Agreement. The Buydown Agreement provides that the
seller of the Mortgaged Property (or third party)
shall deliver to the Company temporary Buydown Funds
in an amount equal to the aggregate undiscounted
amount of payments that, when added to the amount the
Mortgagor on such Mortgage Loan is obligated to pay
on each Due Date in accordance with the terms of the
Buydown Agreement, is equal to the full scheduled
Monthly Payment due on such Mortgage Loan. The
temporary Buydown Funds enable the Mortgagor to
qualify for the Buydown Mortgage Loan. The effective
interest rate of a Buydown Mortgage Loan if less than
the interest rate set forth in the related Mortgage
Note will increase within the Buydown Period as
provided in the related Buydown Agreement so that the
effective interest rate will be equal to the interest
rate as set forth in the related Mortgage Note. The
Buydown Mortgage Loan satisfies the requirements of
▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac guidelines;
(ii) The Mortgage and Mortgage Note reflect the permanent
payment terms rather than the payment terms of the
Buydown Agreement. The Buydown Agreement provides for
the payment by the Mortgagor of the full amount of
the Monthly Payment on any Due Date that the Buydown
Funds are available. The Buydown Funds were not used
to reduce the original principal balance of the
Mortgage Loan or to increase the Appraised Value of
the Mortgage Property when calculating the
Loan-to-Value Ratios for purposes of the Agreement
and, if the Buydown Funds were provided by the
Company and if required under ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇
Mac guidelines, the terms of the Buydown Agreement
were disclosed to the appraiser of the Mortgaged
Property;
(iii) The Buydown Funds may not be refunded to the
Mortgagor unless the Mortgagor makes a principal
payment for the outstanding balance of the Mortgage
Loan;
(iv) As of the date of origination of the Mortgage Loan,
the provisions of the related Buydown Agreement
complied with the requirements of ▇▇▇▇▇▇ Mae or
▇▇▇▇▇▇▇ Mac regarding buydown agreements.
(ll) DELIVERY OF CUSTODIAL MORTGAGE FILES.
Any documents required to be delivered by the Company under
this Agreement have been delivered to the Custodian. The
Company is in possession of a complete, true and accurate
Retained Mortgage File and Custodial Mortgage File in
compliance with Exhibit C hereto;
(mm) NO VIOLATION OF ENVIRONMENTAL LAWS.
There is no pending action or proceeding directly involving
any Mortgaged Property of which the Company is aware in which
compliance with any environmental law, rule or regulation is
an issue; and to the best of the Company's knowledge, nothing
further remains to be done to satisfy in full all requirements
of each such law, rule or regulation constituting a
prerequisite to use and enjoyment of said property;
(nn) NO BANKRUPTCY.
No Mortgagor was a debtor in any state or federal bankruptcy
or insolvency proceeding at the time the Mortgage Loan was
originated and to the best of the Company's knowledge, as of
the related Closing Date, the Company has not received notice
that any Mortgagor is a debtor under any state or federal
bankruptcy or insolvency proceeding;
(oo) HOEPA.
No Mortgage Loan is a High Cost Loan or Covered Loan;
(pp) COOPERATIVE LOANS.
With respect to each Cooperative Loan:
(i) The Cooperative Shares are held by a person as a
tenant-stockholder in a Cooperative. Each original
UCC financing statement, continuation statement or
other governmental filing or recordation necessary to
create or preserve the perfection and priority of the
first lien and security interest in the Cooperative
Loan and Proprietary Lease has been timely and
properly made. Any security agreement, chattel
mortgage or equivalent document related to the
Cooperative Loan and delivered to Purchaser or its
designee establishes in Purchaser a valid and
subsisting perfected first lien on and security
interest in the Mortgaged Property described therein,
and Purchaser has full right to sell and assign the
same. The Proprietary Lease term expires no less than
five years after the Mortgage Loan term or such other
term acceptable to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac;
(ii) A Cooperative Lien Search has been made by a company
competent to make the same which company is
acceptable to ▇▇▇▇▇▇ Mae and qualified to do business
in the jurisdiction where the Cooperative is located;
(iii) (a) The term of the related Proprietary Lease is not
less than the terms of the Cooperative Loan; (b)
there is no provision in any Proprietary Lease which
requires the Mortgagor to offer for sale the
Cooperative Shares owned by such Mortgagor first to
the Cooperative; (c) there is no prohibition in any
Proprietary Lease against pledging the Cooperative
Shares or assigning the Proprietary Lease; (d) the
Cooperative has been created and exists in full
compliance with the requirements for residential
cooperatives in the jurisdiction in which the Project
is located and qualifies as a cooperative housing
corporation under Section 210 of the Code; (e) the
Recognition Agreement is on a form published by
Aztech Document Services, Inc. or includes similar
provisions; and (f) the Cooperative has good and
marketable title to the Project, and owns the Project
either in fee simple or under a leasehold that
complies with the requirements of the ▇▇▇▇▇▇ ▇▇▇
Guidelines; such title is free and clear of any
adverse liens or encumbrances, except the lien of any
blanket mortgage;
(iv) The Company has the right under the terms of the
Mortgage Note, Pledge Agreement and Recognition
Agreement to pay any maintenance charges or
assessments owed by the Mortgagor;
(v) Each Stock Power (i) has all signatures guaranteed or
(ii) if all signatures are not guaranteed, then such
Cooperative Shares will be transferred by the stock
transfer agent of the Cooperative if the Company
undertakes to convert the ownership of the collateral
securing the related Cooperative Loan;
(qq) GEORGIA FAIR LENDING ACT.
There is no Mortgage Loan that was originated on or after
October 1, 2002 and before March 7, 2003, which is secured by
property located in the State of Georgia;
(rr) METHODOLOGY.
The methodology used in underwriting the extension of credit
for each Mortgage Loan employs objective mathematical
principles which relate the borrower's income, assets and
liabilities to the proposed payment and such underwriting
methodology does not rely on the extent of the borrower's
equity in the collateral as the principal determining factor
in approving such credit extension. Such underwriting
methodology confirmed that at the time of origination
(application/approval) the borrower had a reasonable ability
to make timely payments on the Mortgage Loan;
(ss) IMPOSITION OF A PREMIUM.
With respect to any Mortgage Loan that contains a provision
permitting imposition of a premium upon a prepayment prior to
maturity: (i) the prepayment premium is disclosed to the
borrower in the loan documents pursuant to applicable state
and federal law, and (ii) notwithstanding any state or federal
law to the contrary, the Company shall recommend that such
prepayment premium is not imposed in any instance when the
mortgage debt is accelerated as the result of the borrower's
default in making the loan payments;
(tt) SINGLE PREMIUM CREDIT LIFE.
No Mortgagor was required to purchase any single premium
credit insurance policy (e.g. life, disability, accident,
unemployment or health insurance products) or debt
cancellation agreement as a condition of obtaining the
extension of credit. No Mortgagor obtained a prepaid single
premium credit insurance policy (e.g. life, disability,
accident, unemployment or health insurance product) as part of
the origination of the Mortgage Loan. No proceeds from any
Mortgage Loan were used to purchase single premium credit
insurance policies or debt cancellation agreements as part of
the origination of, or as a condition to closing, such
Mortgage Loan;
(uu) NO ARBITRATION PROVISION.
With respect to each Mortgage Loan, neither the related
Mortgage nor the related Mortgage Note requires the Mortgagor
to submit to arbitration to resolve any dispute arising out of
or relating in any way to the Mortgage Loan transaction;
(i) (ww) CREDIT REPORTING.
With respect to each Mortgage Loan, the Company has fully
furnished, in accordance with the Fair Credit Reporting Act
and its implementing regulations, accurate and complete
information (i.e. favorable and unfavorable) on its borrower
credit files to Equifax, Experian and Trans Union Credit
Information Company (three of the credit repositories), on a
monthly basis; and
(xx) ILLINOIS INTEREST ACT.
Any Mortgage Loan with a Mortgaged Property in the State of
Illinois complies with the Illinois Interest Act.
Section 3.03 REPURCHASE.
It is understood and agreed that the representations and warranties set
forth in Sections 3.01 and 3.02 shall survive the sale of the Mortgage Loans to
the Purchaser and the delivery of the Mortgage Loan Documents to the Custodian
and shall inure to the benefit of the Purchaser, notwithstanding any restrictive
or qualified endorsement on any Mortgage Note or Assignment of Mortgage or the
examination or failure to examine any Custodial Mortgage Files or Retained
Mortgage File. Upon discovery by either the Company or the Purchaser of a breach
of any of the foregoing representations and warranties which materially and
adversely affects the value of the Mortgage Loans or the interest of the
Purchaser (or which materially and adversely affects the interests of Purchaser
in the related Mortgage Loan in the case of a representation and warranty
relating to a particular Mortgage Loan), the party discovering such breach shall
give prompt written notice to the other.
Within ninety (90) days of the earlier of either discovery by or notice
to the Company of any breach of a representation or warranty which materially
and adversely affects the value of the Mortgage Loans, the Company shall use its
best efforts promptly to cure such breach in all material respects and, if such
breach cannot be cured, the Company shall, at the Purchaser's option, repurchase
such Mortgage Loan at the Repurchase Price. In the event that a breach shall
involve any representation or warranty set forth in Section 3.01, and such
breach cannot be cured within 90 days of the earlier of either discovery by or
notice to the Company of such breach, all of the Mortgage Loans shall, at the
Purchaser's option, be repurchased by the Company at the Repurchase Price.
However, if the breach shall involve a representation or warranty set forth in
Section 3.02 and the Company discovers or receives notice of any such breach
within 120 days of the related Closing Date, the Company shall, if the breach
cannot be cured, at the Purchaser's option and provided that the Company has a
Qualified Substitute Mortgage Loan, rather than repurchase the Mortgage Loan as
provided above, remove such Mortgage Loan (a "Deleted Mortgage Loan") and
substitute in its place a Qualified Substitute Mortgage Loan or Loans, provided
that any such substitution shall be effected not later than 120 days after the
related Closing Date. If the Company has no Qualified Substitute Mortgage Loan,
it shall repurchase the deficient Mortgage Loan within ninety (90) days of the
written notice of the breach or the failure to cure, whichever is later. Any
repurchase of a Mortgage Loan or Loans pursuant to the foregoing provisions of
this Section 3.03 shall be accomplished by deposit in the Custodial Account of
the amount of the Repurchase Price for distribution to Purchaser on the next
scheduled Remittance Date, after deducting therefrom any amount received in
respect of such repurchased Mortgage Loan or Loans and being held in the
Custodial Account for future distribution.
At the time of repurchase or substitution, the Purchaser and the
Company shall arrange for the reassignment of the Deleted Mortgage Loan to the
Company and the delivery to the Company of any documents held by the Custodian
relating to the Deleted Mortgage Loan. If the Company repurchases a Mortgage
Loan that is a MERS Mortgage Loan, the Company shall cause MERS to designate on
the MERS(R) System to remove the Purchaser as the beneficial holder with respect
to such Mortgage Loan. In the event of a repurchase or substitution, the Company
shall, simultaneously with such reassignment, give written notice to the
Purchaser that such repurchase or substitution has taken place, amend the
related Mortgage Loan Schedule to reflect the withdrawal of the Deleted Mortgage
Loan from this Agreement, and, in the case of substitution, identify a Qualified
Substitute Mortgage Loan and amend the related Mortgage Loan Schedule to reflect
the addition of such Qualified Substitute Mortgage Loan to this Agreement. In
connection with any such substitution, the Company shall be deemed to have made
as to such Qualified Substitute Mortgage Loan the representations and warranties
set forth in this Agreement except that all such representations and warranties
set forth in this Agreement shall be deemed made as of the date of such
substitution. The Company shall effect such substitution by delivering to the
Custodian for such Qualified Substitute Mortgage Loan the documents required by
Section 2.03, with the Mortgage Note endorsed as required by Section 2.03. No
substitution will be made in any calendar month after the Determination Date for
such month. The Company shall deposit in the Custodial Account the Monthly
Payment less the Servicing Fee due on such Qualified Substitute Mortgage Loan or
Loans in the month following the date of such substitution. Monthly Payments due
with respect to Qualified Substitute Mortgage Loans in the month of substitution
shall be retained by the Company. With respect to any Deleted Mortgage loan,
distributions to Purchaser shall include the Monthly Payment due on any Deleted
Mortgage Loan in the month of substitution, and the Company shall thereafter be
entitled to retain all amounts subsequently received by the Company in respect
of such Deleted Mortgage Loan.
For any month in which the Company substitutes a Qualified Substitute
Mortgage Loan for a Deleted Mortgage Loan, the Company shall determine the
amount (if any) by which the aggregate principal balance of all Qualified
Substitute Mortgage Loans as of the date of substitution is less than the
aggregate Stated Principal Balance of all Deleted Mortgage Loans (after
application of scheduled principal payments due in the month of substitution).
The amount of such shortfall shall be distributed by the Company in the month of
substitution pursuant to Section 5.01. Accordingly, on the date of such
substitution, the Company shall deposit from its own funds into the Custodial
Account an amount equal to the amount of such shortfall.
In addition to such repurchase or substitution obligation, the Company
shall indemnify the Purchaser and hold it harmless against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments, and other costs and expenses resulting from any claim, demand,
defense or assertion based on or grounded upon, or resulting from, a breach of
the Company representations and warranties contained in this Agreement. It is
understood and agreed that the obligations of the Company set forth in this
Section 3.03 to cure, substitute for or repurchase a defective Mortgage Loan and
to indemnify the Purchaser as provided in this Section 3.03 constitute the sole
remedies of the Purchaser respecting a breach of the foregoing representations
and warranties.
Any cause of action against the Company relating to or arising out of
the breach of any representations and warranties made in Sections 3.01 and 3.02
shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the
Purchaser or notice thereof by the Company to the Purchaser, (ii) failures by
the Company to cure such breach or repurchase such Mortgage Loan as specified
above, and (iii) demand upon the Company by the Purchaser for compliance with
this Agreement.
In the event a Mortgage Loan pays off in full on or before the related
Closing Date, the Company must repay the Purchaser the difference between the
Unpaid Principal Balance of such Mortgage Loan as of the date of pay off and the
Unpaid Principal Balance multiplied by the purchase price percentage adjusted,
if necessary in accordance with the Commitment Letter.
ARTICLE IV
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 4.01 COMPANY TO ACT AS SERVICER.
The Company, as an independent contractor, shall service and administer
the Mortgage Loans and shall have full power and authority, acting alone or
through the utilization of a Subcontractor, to do any and all things in
connection with such servicing and administration which the Company may deem
necessary or desirable, consistent with the terms of this Agreement and with
Accepted Servicing Practices. The Company shall be responsible for any and all
acts of a Subcontractor, and the Company's utilization of a Subcontractor shall
in no way relieve the liability of the Company under this Agreement.
Consistent with the terms of this Agreement, the Company may waive,
modify or vary any term of any Mortgage Loan or consent to the postponement of
strict compliance with any such term or in any manner grant indulgence to any
Mortgagor if in the Company's reasonable and prudent determination such waiver,
modification, postponement or indulgence is not materially adverse to the
Purchaser, provided, however, that the Company shall not make any future
advances with respect to a Mortgage Loan and (unless the Mortgagor is in default
with respect to the Mortgage Loan or such default is, in the judgment of the
Company, imminent and the Company has obtained the prior written consent of the
Purchaser) the Company shall not permit any modification with respect to any
Mortgage Loan that would change the Mortgage Interest Rate, defer or forgive the
payment of principal (except for actual payments of principal) or change the
final maturity date on such Mortgage Loan. In the event of any such modification
which permits the deferral of interest or principal payments on any Mortgage
Loan, the Company shall, on the Business Day immediately preceding the
Remittance Date in any month in which any such principal or interest payment has
been deferred, deposit in the Custodial Account from its own funds, in
accordance with Section 5.03, the difference between (a) such month's principal
and one month's interest at the Mortgage Loan Remittance Rate on the unpaid
principal balance of such Mortgage Loan and (b) the amount paid by the
Mortgagor. The Company shall be entitled to reimbursement for such advances to
the same extent as for all other advances made pursuant to Section 5.03. Without
limiting the generality of the foregoing, the Company shall continue, and is
hereby authorized and empowered, to execute and deliver on behalf of itself and
the Purchaser, all instruments of satisfaction or cancellation, or of partial or
full release, discharge and all other comparable instruments, with respect to
the Mortgage Loans and with respect to the Mortgaged Properties. If reasonably
required by the Company, the Purchaser shall furnish the Company with any powers
of attorney and other documents necessary or appropriate to enable the Company
to carry out its servicing and administrative duties under this Agreement.
In servicing and administering the Mortgage Loans, the Company shall
employ procedures (including collection procedures) and exercise the same care
that it customarily employs and exercises in servicing and administering
mortgage loans for its own account, giving due consideration to Accepted
Servicing Practices where such practices do not conflict with the requirements
of this Agreement, and the Purchaser's reliance on the Company.
The Company is authorized and empowered by the Purchaser, in its own
name, when the Company believes it appropriate in its reasonable judgment to
register any Mortgage Loan on the MERS(R) System, or cause the removal from the
registration of any Mortgage Loan on the MERS(R) System, with written consent of
the Purchaser, to execute and deliver, on behalf of the Purchaser, any and all
instruments of assignment and other comparable instruments with respect to such
assignment or re-recording of a Mortgage in the name of MERS, solely as nominee
for the Purchaser and its successors and assigns.
The Company shall cause to be maintained for each Cooperative Loan a
copy of the financing statements and shall file and such financing statements
and continuation statements as necessary, in accordance with the Uniform
Commercial Code applicable in the jurisdiction in which the related Cooperative
Apartment is located, to perfect and protect the security interest and lien of
the Purchaser.
The Company shall apply any Principal Prepayment on an Interest Only
Mortgage Loan to the then-outstanding principal balance, at which time the
interest-only payment feature shall be extinguished. The related Monthly Payment
shall thereafter consist of both principal and interest components, and the
amount of such Monthly Payment shall not change prior to the next Adjustment
Date.
Section 4.02 LIQUIDATION OF MORTGAGE LOANS.
In the event that any payment due under any Mortgage Loan and not
postponed pursuant to Section 4.01 is not paid when the same becomes due and
payable, or in the event the Mortgagor fails to perform any other covenant or
obligation under the Mortgage Loan and such failure continues beyond any
applicable grace period, the Company shall take such action as (1) the Company
would take under similar circumstances with respect to a similar mortgage loan
held for its own account for investment, (2) shall be consistent with Accepted
Servicing Practices, (3) the Company shall determine prudently to be in the best
interest of Purchaser, and (4) is consistent with any related PMI Policy. In the
event that any payment due under any Mortgage Loan is not postponed pursuant to
Section 4.01 and remains delinquent for a period of 90 days or any other default
continues for a period of 90 days beyond the expiration of any grace or cure
period, the Company shall commence foreclosure proceedings, the Company shall
notify the Purchaser in writing of the Company's intention to do so, and the
Company shall not commence foreclosure proceedings if the Purchaser objects to
such action within three (3) Business Days of receiving such notice. In the
event the Purchaser objects to such foreclosure action, the Company shall not be
required to make Monthly Advances with respect to such Mortgage Loan, pursuant
to Section 5.03, and the Company's obligation to make such Monthly Advances
shall terminate on the 90th day referred to above. In such connection, the
Company shall from its own funds make all necessary and proper Servicing
Advances, provided, however, that the Company shall not be required to expend
its own funds in connection with any foreclosure or towards the restoration or
preservation of any Mortgaged Property, unless it shall determine (a) that such
preservation, restoration and/or foreclosure will increase the proceeds of
liquidation of the Mortgage Loan to Purchaser after reimbursement to itself for
such expenses and (b) that such expenses will be recoverable by it either
through Liquidation Proceeds (respecting which it shall have priority for
purposes of withdrawals from the Custodial Account pursuant to Section 4.05) or
through Insurance Proceeds (respecting which it shall have similar priority).
Notwithstanding anything to the contrary contained herein, in
connection with a foreclosure or acceptance of a deed in lieu of foreclosure, in
the event the Company has reasonable cause to believe that a Mortgaged Property
is contaminated by hazardous or toxic substances or wastes, or if the Purchaser
otherwise requests an environmental inspection or review of such Mortgaged
Property, such an inspection or review is to be conducted by a qualified
inspector. The cost for such inspection or review shall be borne by the
Purchaser. Upon completion of the inspection or review, the Company shall
promptly provide the Purchaser with a written report of the environmental
inspection.
After reviewing the environmental inspection report, the Purchaser
shall determine how the Company shall proceed with respect to the Mortgaged
Property. In the event (a) the environmental inspection report indicates that
the Mortgaged Property is contaminated by hazardous or toxic substances or
wastes and (b) the Purchaser directs the Company to proceed with foreclosure or
acceptance of a deed in lieu of foreclosure, the Company shall be reimbursed for
all reasonable costs associated with such foreclosure or acceptance of a deed in
lieu of foreclosure and any related environmental clean up costs, as applicable,
from the related Liquidation Proceeds, or if the Liquidation Proceeds are
insufficient to fully reimburse the Company, the Company shall be entitled to be
reimbursed from amounts in the Custodial Account pursuant to Section 4.05
hereof. In the event the Purchaser directs the Company not to proceed with
foreclosure or acceptance of a deed in lieu of foreclosure, the Company shall be
reimbursed for all Servicing Advances made with respect to the related Mortgaged
Property from the Custodial Account pursuant to Section 4.05 hereof.
Section 4.03 COLLECTION OF MORTGAGE LOAN PAYMENTS.
Continuously from the related Cut-off Date until the principal and
interest on all Mortgage Loans are paid in full, the Company shall proceed
diligently to collect all payments due under each of the Mortgage Loans when the
same shall become due and payable and shall take special care in ascertaining
and estimating Escrow Payments and all other charges that will become due and
payable with respect to the Mortgage Loan and the Mortgaged Property, to the end
that the installments payable by the Mortgagors will be sufficient to pay such
charges as and when they become due and payable.
Section 4.04 ESTABLISHMENT OF AND DEPOSITS TO CUSTODIAL ACCOUNT.
The Company shall segregate and hold all funds collected and received
pursuant to a Mortgage Loan separate and apart from any of its own funds and
general assets and shall establish and maintain one or more Custodial Accounts,
in the form of time deposit or demand accounts, titled "▇▇▇▇▇ Fargo Bank, N.A.
in trust for the Purchaser and/or subsequent purchasers of Mortgage Loans - P &
I." The Custodial Account shall be established with a Qualified Depository. Upon
request of the Purchaser and within ten (10) days thereof, the Company shall
provide the Purchaser with written confirmation of the existence of such
Custodial Account. Any funds deposited into the Custodial Account shall at all
times be insured to the fullest extent allowed by applicable law. Funds
deposited in the Custodial Account may be drawn on by the Company in accordance
with Section 4.05.
The Company shall deposit in the Custodial Account within one (1)
Business Day of Company's receipt, and retain therein, the following collections
received by the Company and payments made by the Company after the related
Cut-off Date, other than payments of principal and interest due on or before the
related Cut-off Date, or received by the Company prior to the related Cut-off
Date but allocable to a period subsequent thereto:
(i) all payments on account of principal on the Mortgage Loans,
including all Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans
adjusted to the Mortgage Loan Remittance Rate;
(iii) all Liquidation Proceeds;
(iv) all Insurance Proceeds including amounts required to be
deposited pursuant to Section 4.10 (other than proceeds to be
held in the Escrow Account and applied to the restoration or
repair of the Mortgaged Property or released to the Mortgagor
in accordance with Section 4.14), Section 4.11 and Section
4.15;
(v) all Condemnation Proceeds which are not applied to the
restoration or repair of the Mortgaged Property or released to
the Mortgagor in accordance with Section 4.14;
(vi) any amount required to be deposited in the Custodial Account
pursuant to Section 4.01, 5.03, 6.01 or 6.02;
(vii) any amounts payable in connection with the repurchase of any
Mortgage Loan pursuant to Section 3.03 and all amounts
required to be deposited by the Company in connection with a
shortfall in principal amount of any Qualified Substitute
Mortgage Loan pursuant to Section 3.03;
(viii) with respect to each Principal Prepayment an amount (to be
paid by the Company out of its funds) which, when added to all
amounts allocable to interest received in connection with the
Principal Prepayment, equals one month's interest on the
amount of principal so prepaid at the Mortgage Loan Remittance
Rate;
(ix) any amounts required to be deposited by the Company pursuant
to Section 4.11 in connection with the deductible clause in
any blanket hazard insurance policy;
(x) any amounts received with respect to or related to any REO
Property and all REO Disposition Proceeds pursuant to Section
4.16; and
(xi) an amount from the Subsidy Account that when added to the
Mortgagor's payment will equal the full monthly amount due
under the related Mortgage Note.
The foregoing requirements for deposit into the Custodial Account shall
be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of late payment charges and
assumption fees, to the extent permitted by Section 6.01, need not be deposited
by the Company into the Custodial Account. Any interest paid on funds deposited
in the Custodial Account by the depository institution shall accrue to the
benefit of the Company and the Company shall be entitled to retain and withdraw
such interest from the Custodial Account pursuant to Section 4.05.
Section 4.05 PERMITTED WITHDRAWALS FROM CUSTODIAL ACCOUNT.
The Company shall, from time to time, withdraw funds from the Custodial
Account for the following purposes:
(i) to make payments to the Purchaser in the amounts and in the
manner provided for in Section 5.01;
(ii) to reimburse itself for Monthly Advances of the Company's
funds made pursuant to Section 5.03, the Company's right to
reimburse itself pursuant to this subclause (ii) being limited
to amounts received on the related Mortgage Loan which
represent late payments of principal and/or interest
respecting which any such advance was made, it being
understood that, in the case of any such reimbursement, the
Company's right thereto shall be prior to the rights of
Purchaser, except that, where the Company is required to
repurchase a Mortgage Loan pursuant to Section 3.03 or 6.02,
the Company's right to such reimbursement shall be subsequent
to the payment to the Purchaser of the Repurchase Price
pursuant to such sections and all other amounts required to be
paid to the Purchaser with respect to such Mortgage Loan;
(iii) to reimburse itself for unreimbursed Servicing Advances, and
for any unpaid Servicing Fees, the Company's right to
reimburse itself pursuant to this subclause (iii) with respect
to any Mortgage Loan being limited to related Liquidation
Proceeds, Condemnation Proceeds, Insurance Proceeds and such
other amounts as may be collected by the Company from the
Mortgagor or otherwise relating to the Mortgage Loan, it being
understood that, in the case of any such reimbursement, the
Company's right thereto shall be prior to the rights of
Purchaser, except that where the Company is required to
repurchase a Mortgage Loan pursuant to Section 3.03 or 6.02,
in which case the Company's right to such reimbursement shall
be subsequent to the payment to the Purchaser of the
Repurchase Price pursuant to such sections and all other
amounts required to be paid to the Purchaser with respect to
such Mortgage Loan. Upon Purchaser's request, the Company
shall provide documentation supporting the Company's Servicing
Advances;
(iv) to pay itself interest on funds deposited in the Custodial
Account;
(v) to reimburse itself for expenses incurred and reimbursable to
it pursuant to Section 8.01;
(vi) to pay any amount required to be paid pursuant to Section 4.16
related to any REO Property, it being understood that, in the
case of any such expenditure or withdrawal related to a
particular REO Property, the amount of such expenditure or
withdrawal from the Custodial Account shall be limited to
amounts on deposit in the Custodial Account with respect to
the related REO Property;
(vii) to reimburse itself for any Servicing Advances or REO expenses
after liquidation of the Mortgaged Property not otherwise
reimbursed above;
(viii) to remove funds inadvertently placed in the Custodial Account
by the Company; and
(ix) to clear and terminate the Custodial Account upon the
termination of this Agreement.
In the event that the Custodial Account is interest bearing, on each
Remittance Date, the Company shall withdraw all funds from the Custodial Account
except for those amounts which, pursuant to Section 5.01, the Company is not
obligated to remit on such Remittance Date. The Company may use such withdrawn
funds only for the purposes described in this Section 4.05.
Section 4.06 ESTABLISHMENT OF AND DEPOSITS TO ESCROW ACCOUNT.
The Company shall segregate and hold all funds collected and received
pursuant to a Mortgage Loan constituting Escrow Payments separate and apart from
any of its own funds and general assets and shall establish and maintain one or
more Escrow Accounts, in the form of time deposit or demand accounts, titled,
"▇▇▇▇▇ Fargo Bank, N.A., in trust for the Purchaser and/or subsequent purchasers
of Residential Mortgage Loans, and various Mortgagors - T & I." The Escrow
Accounts shall be established with a Qualified Depository, in a manner which
shall provide maximum available insurance thereunder. Upon request of the
Purchaser and within ten (10) days thereof, the Company shall provide the
Purchaser with written confirmation of the existence of such Escrow Account.
Funds deposited in the Escrow Account may be drawn on by the Company in
accordance with Section 4.07.
The Company shall deposit in the Escrow Account or Accounts within one
(1) Business Days of Company's receipt, and retain therein:
(i) all Escrow Payments collected on account of the Mortgage
Loans, for the purpose of effecting timely payment of any such
items as required under the terms of this Agreement;
(ii) all amounts representing Insurance Proceeds or Condemnation
Proceeds which are to be applied to the restoration or repair
of any Mortgaged Property; and
(iii) all payments on account of Buydown Funds.
The Company shall make withdrawals from the Escrow Account only to
effect such payments as are required under this Agreement, as set forth in
Section 4.07. The Company shall be entitled to retain any interest paid on funds
deposited in the Escrow Account by the depository institution, other than
interest on escrowed funds required by law to be paid to the Mortgagor. To the
extent required by law, the Company shall pay interest on escrowed funds to the
Mortgagor notwithstanding that the Escrow Account may be non-interest bearing or
that interest paid thereon is insufficient for such purposes.
Section 4.07 PERMITTED WITHDRAWALS FROM ESCROW ACCOUNT.
Withdrawals from the Escrow Account or Accounts may be made by the
Company only:
(i) to effect timely payments of ground rents, taxes, assessments,
water rates, mortgage insurance premiums, condominium charges,
fire and hazard insurance premiums or other items constituting
Escrow Payments for the related Mortgage;
(ii) to reimburse the Company for any Servicing Advances made by
the Company pursuant to Section 4.08 with respect to a related
Mortgage Loan, but only from amounts received on the related
Mortgage Loan which represent late collections of Escrow
Payments thereunder;
(iii) to refund to any Mortgagor any funds found to be in excess of
the amounts required under the terms of the related Mortgage
Loan;
(iv) for transfer to the Custodial Account and application to
reduce the principal balance of the Mortgage Loan in
accordance with the terms of the related Mortgage and Mortgage
Note;
(v) for application to restoration or repair of the Mortgaged
Property in accordance with the procedures outlined in Section
4.14;
(vi) to pay to the Company, or any Mortgagor to the extent required
by law, any interest paid on the funds deposited in the Escrow
Account;
(vii) to remove funds inadvertently placed in the Escrow Account by
the Company;
(viii) to remit to Purchaser payments on account of Buydown Funds as
applicable; and
(ix) to clear and terminate the Escrow Account on the termination
of this Agreement.
Section 4.08 PAYMENT OF TAXES, INSURANCE AND OTHER CHARGES.
With respect to each Mortgage Loan, the Company shall maintain accurate
records reflecting the status of ground rents, taxes, assessments, water rates,
sewer rents, and other charges which are or may become a lien upon the Mortgaged
Property and the status of PMI Policy premiums and fire and hazard insurance
coverage and shall obtain, from time to time, all bills for the payment of such
charges (including renewal premiums) and shall effect payment thereof prior to
the applicable penalty or termination date, employing for such purpose deposits
of the Mortgagor in the Escrow Account which shall have been estimated and
accumulated by the Company in amounts sufficient for such purposes, as allowed
under the terms of the Mortgage. The Company assumes full responsibility for the
timely payment of all such bills and shall effect timely payment of all such
charges irrespective of each Mortgagor's faithful performance in the payment of
same or the making of the Escrow Payments, and the Company shall make advances
from its own funds to effect such payments.
Section 4.09 PROTECTION OF ACCOUNTS.
The Company may transfer the Custodial Account, the Subsidy Account or
the Escrow Account to a different Qualified Depository from time to time with
prior written notice to Purchaser.
Section 4.10 MAINTENANCE OF HAZARD INSURANCE.
The Company shall cause to be maintained for each Mortgage Loan hazard
insurance such that all buildings upon the Mortgaged Property are insured by an
insurer acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac against loss by fire, hazards of
extended coverage and such other hazards as are customary in the area where the
Mortgaged Property is located, in an amount which is at least equal to the
lesser of (i) 100% of the insurable value, on a replacement cost basis, of the
improvements on the related Mortgaged Property, and (ii) the greater of (a) the
outstanding principal balance of the Mortgage Loan and (b) an amount such that
the proceeds of such insurance shall be sufficient to prevent the application to
the Mortgagor or the loss payee of any coinsurance clause under the policy. In
the event a hazard insurance policy shall be in danger of being terminated, or
in the event the insurer shall cease to be acceptable to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇
Mac, the Company shall notify the Purchaser and the related Mortgagor, and shall
use its best efforts, as permitted by applicable law, to obtain from another
qualified insurer a replacement hazard insurance policy substantially and
materially similar in all respects to the original policy. In no event, however,
shall a Mortgage Loan be without a hazard insurance policy at any time, subject
only to Section 4.11 hereof.
If upon origination of the Mortgage Loan, the related Mortgaged
Property was located in an area identified by the Flood Emergency Management
Agency as having special flood hazards (and such flood insurance has been made
available) a flood insurance policy meeting the requirements of the current
guidelines of the Federal Insurance Administration is in effect with a generally
acceptable insurance carrier acceptable to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac in an
amount representing coverage equal to the lesser of (i) the minimum amount
required, under the terms of coverage, to compensate for any damage or loss on a
replacement cost basis (or the unpaid balance of the mortgage if replacement
cost coverage is not available for the type of building insured) and (ii) the
maximum amount of insurance which is available under the Flood Disaster
Protection Act of 1973, as amended. If at any time during the term of the
Mortgage Loan, the Company determines in accordance with applicable law 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 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
immediately force place the required flood insurance on the Mortgagor's behalf,
as permitted by applicable law.
If a Mortgage is secured by a unit in a condominium project, the
Company shall verify that the coverage required of the owner's association,
including hazard, flood, liability, and fidelity coverage, is being maintained
in accordance with then current ▇▇▇▇▇▇ Mae requirements, and secure from the
owner's association its agreement to notify the Company promptly of any change
in the insurance coverage or of any condemnation or casualty loss that may have
a material effect on the value of the Mortgaged Property as security.
In the event that any Purchaser or the Company shall determine that the
Mortgaged Property should be insured against loss or damage by hazards and risks
not covered by the insurance required to be maintained by the Mortgagor pursuant
to the terms of the Mortgage, the Company shall communicate and consult with the
Mortgagor with respect to the need for such insurance and bring to the
Mortgagor's attention the required amount of coverage for the Mortgaged Property
and if the Mortgagor does not obtain such coverage, the Company shall
immediately force place the required coverage on the Mortgagor'.
All policies required hereunder shall name the Company as loss payee
and shall be endorsed with standard or union mortgagee clauses, without
contribution, which shall provide for at least 30 days prior written notice of
any cancellation, reduction in amount or material change in coverage.
The Company shall not interfere with the Mortgagor's freedom of choice
in selecting either his insurance carrier or agent, provided, however, that the
Company shall not accept any such insurance policies from insurance companies
unless such companies are acceptable to ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac and are
licensed to do business in the jurisdiction in which the Mortgaged Property is
located. The Company shall determine that such policies provide sufficient risk
coverage and amounts, that they insure the property owner, and that they
properly describe the property address.
Pursuant to Section 4.04, any amounts collected by the Company under
any such policies (other than amounts to be deposited in the Escrow Account and
applied to the restoration or repair of the related Mortgaged Property, or
property acquired in liquidation of the Mortgage Loan, or to be released to the
Mortgagor, in accordance with the Company's normal servicing procedures as
specified in Section 4.14) shall be deposited in the Custodial Account subject
to withdrawal pursuant to Section 4.05.
Section 4.11 MAINTENANCE OF MORTGAGE IMPAIRMENT INSURANCE.
In the event that the Company shall obtain and maintain a blanket
policy insuring against losses arising from fire and hazards covered under
extended coverage on all of the Mortgage Loans, then, to the extent such policy
provides coverage in an amount equal to the amount required pursuant to Section
4.10 and otherwise complies with all other requirements of Section 4.10, it
shall conclusively be deemed to have satisfied its obligations as set forth in
Section 4.10. The Company shall prepare and make any claims on the blanket
policy as deemed necessary by the Company in accordance with Accepted Servicing
Practices. Any amounts collected by the Company under any such policy relating
to a Mortgage Loan shall be deposited in the Custodial Account subject to
withdrawal pursuant to Section 4.05. Such policy may contain a deductible
clause, in which case, in the event that there shall not have been maintained on
the related Mortgaged Property a policy complying with Section 4.10, and there
shall have been a loss which would have been covered by such policy, the Company
shall deposit in the Custodial Account at the time of such loss the amount not
otherwise payable under the blanket policy because of such deductible clause,
such amount to be deposited from the Company's funds, without reimbursement
therefor. Upon request of the Purchaser, the Company shall cause to be delivered
to such Purchaser a certificate of insurance and a statement from the insurer
thereunder that such policy shall in no event be terminated or materially
modified without 30 days' prior written notice to such Purchaser.
Section 4.12 MAINTENANCE OF FIDELITY BOND AND ERRORS AND OMISSIONS
INSURANCE.
The Company shall maintain with responsible companies, at its own
expense, a blanket Fidelity Bond and an Errors and Omissions Insurance Policy,
with broad coverage on all officers, employees or other Persons acting in any
capacity requiring such Persons to handle funds, money, documents or papers
relating to the Mortgage Loans ("Company Employees"). Any such Fidelity Bond and
Errors and Omissions Insurance Policy shall be in the form of the Mortgage
Banker's Blanket Bond and shall protect and insure the Company against losses,
including forgery, theft, embezzlement, fraud, errors and omissions and
negligent acts of such Company Employees. Such Fidelity Bond and Errors and
Omissions Insurance Policy also shall protect and insure the Company against
losses in connection with the release or satisfaction of a Mortgage Loan without
having obtained payment in full of the indebtedness secured thereby. No
provision of this Section 4.12 requiring such Fidelity Bond and Errors and
Omissions Insurance Policy shall diminish or relieve the Company from its duties
and obligations as set forth in this Agreement. The minimum coverage under any
such bond and insurance policy shall be with a company acceptable to ▇▇▇▇▇▇ Mae
or ▇▇▇▇▇▇▇ Mac and in amounts at least equal to the amounts acceptable to ▇▇▇▇▇▇
Mae or ▇▇▇▇▇▇▇ Mac. Upon the request of any Purchaser, the Company shall cause
to be delivered to such Purchaser a certified true copy of such fidelity bond
and insurance policy and a statement from the surety and the insurer that such
fidelity bond and insurance policy shall in no event be terminated or materially
modified without 30 days' prior written notice to the Purchaser.
Section 4.13 INSPECTIONS.
If any Mortgage Loan is more than 60 days delinquent, the Company
immediately shall inspect the Mortgaged Property and shall conduct subsequent
inspections in accordance with Accepted Servicing Practices or as may be
required by the primary mortgage guaranty insurer. The Company shall keep a
record of each such inspection and shall provide the Purchaser with copies of
such upon request.
Section 4.14 RESTORATION OF MORTGAGED PROPERTY.
The Company need not obtain the approval of the Purchaser prior to
releasing any Insurance Proceeds or Condemnation Proceeds to the Mortgagor to be
applied to the restoration or repair of the Mortgaged Property if such release
is in accordance with Accepted Servicing Practices. For claims greater than
$15,000, at a minimum the Company shall comply with the following conditions in
connection with any such release of Insurance Proceeds or Condemnation Proceeds:
(i) the Company shall receive satisfactory independent verification
of completion of repairs and issuance of any required approvals
with respect thereto;
(ii) the Company shall take all steps necessary to preserve the
priority of the lien of the Mortgage, including, but not
limited to requiring waivers with respect to mechanics' and
materialmen's liens;
(iii) the Company shall verify that the Mortgage Loan is not in
default; and
(iv) pending repairs or restoration, the Company shall place the
Insurance Proceeds or Condemnation Proceeds in the Escrow
Account.
If the Purchaser is named as an additional loss payee, the Company is
hereby empowered to endorse any loss draft issued in respect of such a claim in
the name of the Purchaser.
Section 4.15 MAINTENANCE OF PMI POLICY; CLAIMS.
Each Mortgage Loan has an LTV as indicated on the Mortgage Loan
Schedule and Electronic Data File. Except as indicated on the Electronic Data
File, with respect to each Mortgage Loan with an LTV in excess of 80% at the
time of origination, the Company shall, without any cost to the Purchaser
maintain or cause the Mortgagor to maintain in full force and effect a PMI
Policy or LPMI Policy insuring a portion of the unpaid principal balance of the
Mortgage Loan as to payment defaults. If the Mortgage Loan is insured by a PMI
Policy for which the Mortgagor pays all premiums, the coverage will remain in
place until (i) the LTV decreases to 78% or (ii) the PMI Policy is otherwise
terminated pursuant to the Homeowners Protection Act of 1998, 12 USC 4901, et
seq. In the event that such PMI Policy shall be terminated other than as
required by law, the Company shall obtain from another Qualified Insurer a
comparable replacement policy, with a total coverage equal to the remaining
coverage of such terminated PMI Policy. If the insurer shall cease to be a
Qualified Insurer, the Company shall determine whether recoveries under the PMI
Policy and LPMI Policy are jeopardized for reasons related to the financial
condition of such insurer, it being understood that the Company shall in no
event have any responsibility or liability for any failure to recover under the
PMI Policy or LPMI Policy for such reason. If the Company determines that
recoveries are so jeopardized, it shall notify the Purchaser and the Mortgagor,
if required, and obtain from another Qualified Insurer a replacement insurance
policy. The Company shall not take any action which would result in noncoverage
under any applicable PMI Policy or LPMI Policy of any loss which, but for the
actions of the Company would have been covered thereunder. In connection with
any assumption or substitution agreement entered into or to be entered into
pursuant to Section 6.01, the Company shall promptly notify the insurer under
the related PMI Policy or LPMI Policy, if any, of such assumption or
substitution of liability in accordance with the terms of such PMI Policy or
LPMI Policy and shall take all actions which may be required by such insurer as
a condition to the continuation of coverage under such PMI Policy or LPMI
Policy. If such PMI Policy is terminated as a result of such assumption or
substitution of liability, the Company shall obtain a replacement PMI Policy or
LPMI Policy as provided above.
In connection with its activities as servicer, the Company agrees to
prepare and present, on behalf of itself and the Purchaser, claims to the
insurer under any PMI Policy in a timely fashion in accordance with the terms of
such PMI Policy and, in this regard, to take such action as shall be necessary
to permit recovery under any PMI Policy respecting a defaulted Mortgage Loan.
Pursuant to Section 4.04, any amounts collected by the Company under any PMI
Policy shall be deposited in the Custodial Account, subject to withdrawal
pursuant to Section 4.05.
Section 4.16 TITLE, MANAGEMENT AND DISPOSITION OF REO PROPERTY.
In the event that title to any Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure, the deed or certificate of sale
shall be taken in the name of the Purchaser, or in the event the Purchaser is
not authorized or permitted to hold title to real property in the state where
the REO Property is located, or would be adversely affected under the "doing
business" or tax laws of such state by so holding title, the deed or certificate
of sale shall be taken in the name of such Person or Persons as shall be
consistent with an Opinion of Counsel obtained by the Company from any attorney
duly licensed to practice law in the state where the REO Property is located.
The Person or Persons holding such title other than the Purchaser shall
acknowledge in writing that such title is being held as nominee for the
Purchaser.
The Purchaser shall have the option to manage and operate the REO
Property provided the Purchaser gives written notice of its intention to do so
within thirty (30) days after such REO Property is acquired in foreclosure or by
deed in lieu of foreclosure. The election by the Purchaser to manage the REO
Property shall not constitute a termination of any rights of the Company
pursuant to Section 11.02. Upon the Company's receipt of such written notice, it
shall be relived of any obligation to manage, conserve, protect, operate,
dispose or sell the Mortgaged Property for the Purchaser, or its designee. All
such duties will become the obligation of the Purchaser, or its designee. In
such connection, upon the Mortgaged Property being acquired on behalf of the
Purchaser, or its designee, the Company shall fully cooperate with Purchaser to
transfer management of the REO Property to Purchaser, or its designee, and shall
immediately submit a statement of expenses to the Purchaser for reimbursement
within 30 days for all Monthly Advances and Servicing Advances. If Company does
not receive reimbursement of such expenses from the Purchaser within the 30-days
of the statement of expenses, Company shall be permitted to withdraw such amount
from the Custodial Account pursuant to Section 4.05.
In the event the Purchaser does not elect to manage an REO Property,
the Company shall manage, conserve and protect the related REO Property for the
Purchaser. The Company, either itself or through an agent selected by the
Company, shall manage the REO Property in the same manner that it manages,
conserves, protects and operates other foreclosed property for its own account,
and in the same manner that similar property in the same locality as the REO
Property is managed. The Company shall attempt to sell the same (and may
temporarily rent the same for a period not greater than one year, except as
otherwise provided below) on such terms and conditions as the Company deems to
be in the best interest of the Purchaser.
The Company shall use its best efforts to dispose of the REO Property
as soon as possible and shall sell such REO Property in any event within one
year after title has been taken to such REO Property, unless (i) a REMIC
election has not been made with respect to the arrangement under which the
Mortgage Loans and the REO Property are held, and (ii) the Company determines,
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
period longer than one year is permitted under the foregoing sentence and is
necessary to sell any REO Property, (i) the Company shall report monthly to the
Purchaser as to the progress being made in selling such REO Property and (ii)
if, with the written consent of the Purchaser, a purchase money mortgage is
taken in connection with such sale, such purchase money mortgage shall name the
Company as mortgagee, and such purchase money mortgage shall not be held
pursuant to this Agreement, but instead a separate participation agreement among
the Company and Purchaser shall be entered into with respect to such purchase
money mortgage.
The Company shall also maintain on each REO Property fire and hazard
insurance with extended coverage in amount which is at least equal to the
maximum insurable value of the improvements which are a part of such property,
liability insurance and, to the extent required and available under the Flood
Disaster Protection Act of 1973, as amended, flood insurance in the amount
required above.
The disposition of REO Property shall be carried out by the Company at
such price, and upon such terms and conditions, as the Company deems to be in
the best interests of the Purchaser. The proceeds of sale of the REO Property
shall be promptly deposited in the Custodial Account. As soon as practical
thereafter the expenses of such sale shall be paid and the Company shall
reimburse itself for any related unreimbursed Servicing Advances, unpaid
Servicing Fees and unreimbursed advances made pursuant to Section 5.03. On the
Remittance Date immediately following the Principal Prepayment Period in which
such sale proceeds are received the net cash proceeds of such sale remaining in
the Custodial Account shall be distributed to the Purchaser.
The Company shall withdraw the Custodial Account funds necessary for
the proper operation management and maintenance of the REO Property, including
the cost of maintaining any hazard insurance pursuant to Section 4.10 and the
fees of any managing agent of the Company, or the Company itself. The Company
shall make monthly distributions on each Remittance Date to the Purchaser of the
net cash flow from the REO Property (which shall equal the revenues from such
REO Property net of the expenses described in the Section 4.16 and of any
reserves reasonably required from time to time to be maintained to satisfy
anticipated liabilities for such expenses).
Section 4.17 REAL ESTATE OWNED REPORTS.
Together with the statement furnished pursuant to Section 5.02, the
Company shall furnish to the Purchaser on or before the Remittance Date each
month a statement with respect to any REO Property covering the operation of
such REO Property for the previous month and the Company's efforts in connection
with the sale of such REO Property and any rental of such REO Property
incidental to the sale thereof for the previous month. That statement shall be
accompanied by such other information as the Purchaser shall reasonably request.
Section 4.18 LIQUIDATION REPORTS.
Upon the foreclosure sale of any Mortgaged Property or the acquisition
thereof by the Purchaser pursuant to a deed in lieu of foreclosure, the Company
shall submit to the Purchaser a liquidation report with respect to such
Mortgaged Property.
Section 4.19 REPORTS OF FORECLOSURES AND ABANDONMENTS OF MORTGAGED
PROPERTY.
Following the foreclosure sale or abandonment of any Mortgaged
Property, the Company shall report such foreclosure or abandonment as required
pursuant to Section 6050J of the Code. The Company shall file information
reports with respect to the receipt of mortgage interest received in a trade or
business and information returns relating to cancellation of indebtedness income
with respect to any Mortgaged Property as required by the Code. Such reports
shall be in form and substance sufficient to meet the reporting requirements
imposed by the Code.
Section 4.20 APPLICATION OF BUYDOWN FUNDS.
With respect to each Buydown Mortgage Loan, the Company shall have
deposited into the Escrow Account, no later than the last day of the month,
Buydown Funds in an amount equal to the aggregate undiscounted amount of
payments that, when added to the amount the Mortgagor on such Mortgage Loan is
obligated to pay on all Due Dates in accordance with the terms of the Buydown
Agreement, is equal to the full scheduled Monthly Payments which are required to
be paid by the Mortgagor under the terms of the related Mortgage Note (without
regard to the related Buydown Agreement as if the Mortgage Loan were not subject
to the terms of the Buydown Agreement). With respect to each Buydown Mortgage
Loan, the Company will distribute to the Purchaser on each Remittance Date an
amount of Buydown Funds equal to the amount that, when added to the amount
required to be paid on such date by the related Mortgagor, pursuant to and in
accordance with the related Buydown Agreement, equals the full Monthly Payment
that would otherwise be required to be paid on such Mortgage Loan by the related
Mortgagor under the terms of the related Mortgage Note (as if the Mortgage Loan
were not a Buydown Mortgage Loan and without regard to the related Buydown
Agreement).
If the Mortgagor on a Buydown Mortgage Loan defaults on such Mortgage
Loan during the Buydown Period and the Mortgaged Property securing such Buydown
Mortgage Loan is sold in the liquidation thereof (either by the Company or the
insurer under any related Primary Insurance Policy) the Company shall, on the
Remittance Date following the date upon which Liquidation Proceeds or REO
Disposition proceeds are received with respect to any such Buydown Mortgage
Loan, distribute to the Purchaser all remaining Buydown Funds for such Mortgage
Loan then remaining in the Escrow Account. Pursuant to the terms of each Buydown
Agreement, any amounts distributed to the Purchaser in accordance with the
preceding sentence will be applied to reduce the outstanding principal balance
of the related Buydown Mortgage Loan. If a Mortgagor on a Buydown Mortgage Loan
prepays such Mortgage Loan in its entirety during the related Buydown Period,
the Company shall be required to withdraw from the Escrow Account any Buydown
Funds remaining in the Escrow Account with respect to such Buydown Mortgage Loan
in accordance with the related Buydown Agreement. If a principal prepayment by a
Mortgagor on a Buydown Mortgage Loan during the related Buydown Period, together
with any Buydown Funds then remaining in the Escrow Account related to such
Buydown Mortgage Loan, would result in a principal prepayment of the entire
unpaid principal balance of the Buydown Mortgage Loan, the Company shall
distribute to the Purchaser on the Remittance Date occurring in the month
immediately succeeding the month in which such Principal Prepayment is received,
all Buydown Funds related to such Mortgage Loan so remaining in the Escrow
Account, together with any amounts required to be deposited into the Custodial
Account.
Section 4.21 NOTIFICATION OF ADJUSTMENTS.
With respect to each adjustable rate Mortgage Loan, the Company shall
adjust the Mortgage Interest Rate on the related Interest Rate Adjustment Date
in compliance with the requirements of applicable law and the related Mortgage
and Mortgage Note. The Company shall execute and deliver any and all necessary
notices required under applicable law and the terms of the related Mortgage Note
and Mortgage regarding the Mortgage Interest Rate adjustments. Upon the
discovery by the Company or the receipt of notice from the Purchaser that the
Company has failed to adjust a Mortgage Interest Rate in accordance with the
terms of the related Mortgage Note, the Company shall immediately deposit in the
Custodial Account from its own funds the amount of any interest loss or deferral
caused the Purchaser thereby.
Section 4.22 CONFIDENTIALITY/PROTECTION OF CUSTOMER INFORMATION.
The Company shall keep confidential and shall not divulge to any party, without
the Purchaser's prior written consent, the price paid by the Purchaser for the
Mortgage Loans, except to the extent that it is reasonable and necessary for the
Company to do so in working with legal counsel, auditors, taxing authorities or
other governmental agencies. Each party agrees that it shall comply with all
applicable laws and regulations regarding the privacy or security of Customer
Information and shall maintain appropriate administrative, technical and
physical safeguards to protect the security, confidentiality and integrity of
Customer Information, including maintaining security measures designed to meet
the Interagency Guidelines Establishing Standards for Safeguarding Customer
Information, 66 Fed. Reg. 8616 (the "Interagency Guidelines"), if applicable.
For purposes of this Section 4.22, the term "Customer Information" shall have
the meaning assigned to it in the Interagency Guidelines.
Section 4.23 FAIR CREDIT REPORTING ACT
The Company, in its capacity as servicer for each Mortgage Loan, agrees
to fully furnish, in accordance with the Fair Credit Reporting Act and its
implementing regulations, accurate and complete information (e.g., favorable and
unfavorable) on its borrower credit files to Equifax, Experian and Trans Union
Credit Information Company (three of the credit repositories), on a monthly
basis.
SECTION 4.24 ESTABLISHMENT OF AND DEPOSITS TO SUBSIDY ACCOUNT.
The Company shall segregate and hold all Subsidy Funds collected and
received pursuant to the Subsidy Loans separate and apart from any of its own
funds and general assets and shall establish and maintain one or more Subsidy
Accounts, in the form of time deposit or demand accounts, titled "▇▇▇▇▇ Fargo
Bank, N.A., in trust for the Purchaser, its successors or assigns, and/or
subsequent purchasers of residential Mortgage Loans, and various Mortgagors."
The Subsidy Account shall be an eligible deposit account established with an
eligible institution.
The Company shall, from time to time, withdraw funds from the Subsidy
Account for the following purposes:
(I) TO DEPOSIT IN THE CUSTODIAL ACCOUNT IN THE AMOUNTS
AND IN THE MANNER PROVIDED FOR IN SECTION 4.04(XI);
(II) TO TRANSFER FUNDS TO ANOTHER ELIGIBLE INSTITUTION IN
ACCORDANCE WITH SECTION 4.09 HEREOF;
(III) TO WITHDRAW FUNDS DEPOSITED IN ERROR; AND
(IV) TO CLEAR AND TERMINATE THE SUBSIDY ACCOUNT UPON THE
TERMINATION OF THIS AGREEMENT.
Notwithstanding anything to the contrary elsewhere in this Agreement,
the Company may employ the Escrow Account as the Subsidy Account to the extent
that the Company can separately identify any Subsidy Funds deposited therein.
Section 4.25 USE OF SUBSERVICERS AND SUBCONTRACTORS.
The Company shall not hire or otherwise utilize the services of any
Subservicer to fulfill any of the obligations of the Company under this
Agreement or any Reconstitution Agreement unless the Company complies with the
provisions of paragraph (a) of this Section 4.25. The Company shall not hire or
otherwise utilize the services of any Subcontractor, and shall not permit any
Subservicer to hire or otherwise utilize the services of any Subcontractor, to
fulfill any of the obligations of the Company under this Agreement or any
Reconstitution Agreement unless the Company complies with the provisions of
paragraph (b) of this Section 4.25.
(a) It shall not be necessary for the Company to seek the consent of
the Purchaser or any Depositor to the utilization of any Subservicer.
The Company shall cause any Subservicer used by the Company (or by any
Subservicer) for the benefit of the Purchaser and any Depositor to
comply with the provisions of this Section 4.25 and with Sections 6.04,
6.06, 9.01(e)(iii), 9.01(e)(v) and 9.01(f) of this Agreement to the
same extent as if such Subservicer were the Company, and to provide the
information required with respect to such Subservicer under Section
9.01(e)(iv) of this Agreement. The Company shall be responsible for
obtaining from each Subservicer and delivering to the Purchaser and any
Depositor any servicer compliance statement required to be delivered by
such Subservicer under Section 6.04 and any assessment of compliance
and attestation required to be delivered by such Subservicer under
Section 6.06 and any certification required to be delivered to the
Person that will be responsible for signing the Sarbanes Certification
under Section 6.06 as and when required to be delivered.
(b) It shall not be necessary for the Company to seek the consent of
the Purchaser or any Depositor to the utilization of any Subcontractor.
The Company shall promptly upon request provide to the Purchaser and
any Depositor (or any designee of the Depositor, such as a master
servicer or administrator) a written description (in form and substance
satisfactory to the Purchaser and such Depositor) of the role and
function of each Subcontractor utilized by the 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.
As a condition to the utilization of any Subcontractor determined to be
"participating in the servicing function" within the meaning of Item 1122 of
Regulation AB, the Company shall cause any such Subcontractor used by the
Company (or by any Subservicer) for the benefit of the Purchaser and any
Depositor to comply with the provisions of Sections 6.06 and 9.01(f) 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 required to be delivered by such Subcontractor under Section 6.06,
in each case as and when required to be delivered.
ARTICLE V
PAYMENTS TO PURCHASER
Section 5.01 REMITTANCES.
On each Remittance Date the Company shall remit by wire transfer of
immediately available funds to the Purchaser (a) all amounts deposited in the
Custodial Account as of the close of business on the Determination Date (net of
charges against or withdrawals from the Custodial Account pursuant to Section
4.05), plus (b) all amounts, if any, which the Company is obligated to
distribute pursuant to Section 5.03, minus (c) any amounts attributable to
Principal Prepayments received after the applicable Principal Prepayment Period
which amounts shall be remitted on the following Remittance Date, together with
any additional interest required to be deposited in the Custodial Account in
connection with such Principal Prepayment in accordance with Section 4.04(viii);
minus (d) any amounts attributable to Monthly Payments collected but due on a
Due Date or Dates subsequent to the first day of the month of the Remittance
Date, and minus (e) any amounts attributable to Buydown Funds being held in the
Custodial Account, which amounts shall be remitted on the Remittance Date next
succeeding the Due Period for such amounts.
With respect to any remittance received by the Purchaser after the
Business Day on which such payment was due, the Company shall pay to the
Purchaser interest on any such late payment at an annual rate equal to the Prime
Rate, adjusted as of the date of each change, plus three percentage points, but
in no event greater than the maximum amount permitted by applicable law. Such
interest shall 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. Such interest shall be remitted by
wire transfer of immediately available funds within one Business Day following
agreement by the Purchaser and the Company of the penalty amount. The payment by
the Company of any such interest shall not be deemed an extension of time for
payment or a waiver of any Event of Default by the Company.
Section 5.02 STATEMENTS TO PURCHASER.
Not later than the Remittance Date, the Company shall furnish to the
Purchaser a monthly remittance advice in the standard form of electronic
Alltel(R) file, as to the period ending on the last day of the preceding month.
If requested by the Purchaser prior to the related Closing Date, the first
monthly remittance advice due to the Purchaser following such Closing Date shall
be furnished by the 12th calendar day, or if such day is not a Business Day,
then the preceding Business Day.
Section 5.03 MONTHLY ADVANCES BY COMPANY.
On the Business Day immediately preceding each Remittance Date, the
Company shall deposit in the Custodial Account from its own funds or from
amounts held for future distribution an amount equal to all Monthly Payments
(with interest adjusted to the Mortgage Loan Remittance Rate) which were due on
the Mortgage Loans during the applicable Due Period and which were delinquent at
the close of business on the immediately preceding Determination Date or which
were deferred pursuant to Section 4.01. Any amounts held for future distribution
and so used shall be replaced by the Company by deposit in the Custodial Account
on or before any future Remittance Date if funds in the Custodial Account on
such Remittance Date shall be less than payments to the Purchaser required to be
made on such Remittance Date. The Company's obligation to make such Monthly
Advances as to any Mortgage Loan will continue through the last Monthly Payment
due prior to the payment in full of the Mortgage Loan, or through the last
Remittance Date prior to the Remittance Date for the distribution of all
Liquidation Proceeds and other payments or recoveries (including REO Disposition
Proceeds, Insurance Proceeds and Condemnation Proceeds) with respect to the
Mortgage Loan; provided, however, that such obligation shall cease if the
Company determines, in its sole reasonable opinion, that advances with respect
to such Mortgage Loan are non-recoverable by the Company from Liquidation
Proceeds, Insurance Proceeds, REO Disposition Proceeds, Condemnation Proceeds,
or otherwise with respect to a particular Mortgage Loan. In the event that the
Company determines that any such advances are non-recoverable, the Company shall
provide the Purchaser with a certificate signed by two officers of the Company
evidencing such determination.
ARTICLE VI
GENERAL SERVICING PROCEDURES
Section 6.01 TRANSFERS OF MORTGAGED PROPERTY.
The Company shall use its best efforts to enforce any "due-on-sale"
provision contained in any Mortgage or Mortgage Note and to deny assumption by
the Person to whom the Mortgaged Property has been or is about to be sold
whether by absolute conveyance or by contract of sale, and whether or not the
Mortgagor remains liable on the Mortgage and the Mortgage Note. When the
Mortgaged Property has been conveyed by the Mortgagor, the Company shall, to the
extent it has knowledge of such conveyance, immediately notify the Purchaser and
exercise its rights to accelerate the maturity of such Mortgage Loan under the
"due-on-sale" clause applicable thereto, provided, however, that the Company
shall not exercise such rights if prohibited by law from doing so or if the
exercise of such rights would impair or threaten to impair any recovery under
the related PMI Policy, if any.
If the Company reasonably believes it is unable under applicable law to
enforce such "due-on-sale" clause, the Company shall enter into (i) an
assumption and modification agreement with the Person to whom such property has
been conveyed, pursuant to which such Person becomes liable under the Mortgage
Note and the original Mortgagor remains liable thereon or (ii) in the event the
Company is unable under applicable law to require that the original Mortgagor
remain liable under the Mortgage Note and the Company has the prior consent of
the primary mortgage guaranty insurer, a substitution of liability agreement
with the purchaser of the Mortgaged Property pursuant to which the original
Mortgagor is released from liability and the purchaser of the Mortgaged Property
is substituted as Mortgagor and becomes liable under the Mortgage Note. If an
assumption fee is collected by the Company for entering into an assumption
agreement the fee will be retained by the Company as additional servicing
compensation. In connection with any such assumption, neither the Mortgage
Interest Rate borne by the related Mortgage Note, the term of the Mortgage Loan,
the outstanding principal amount of the Mortgage Loan nor any other materials
terms shall be changed without Purchaser's consent.
To the extent that any Mortgage Loan is assumable, the Company shall
inquire diligently into the credit worthiness of the proposed transferee, and
shall use the underwriting criteria for approving the credit of the proposed
transferee which are used with respect to underwriting mortgage loans of the
same type as the Mortgage Loans. If the credit of the proposed transferee does
not meet such underwriting criteria, the Company diligently shall, to the extent
permitted by the Mortgage or the Mortgage Note and by applicable law, accelerate
the maturity of the Mortgage Loan.
Section 6.02 SATISFACTION OF MORTGAGES AND RELEASE OF MORTGAGE LOAN
DOCUMENTS.
Upon the payment in full of any Mortgage Loan, or the receipt by the
Company of a notification that payment in full will be escrowed in a manner
customary for such purposes, the Company shall notify the Purchaser in the
Monthly Remittance Advice as provided in Section 5.02, and may request the
release of any Mortgage Loan Documents.
If the Company satisfies or releases a Mortgage without first having
obtained payment in full of the indebtedness secured by the Mortgage or should
the Company otherwise prejudice any rights the Purchaser may have under the
mortgage instruments, upon written demand of the Purchaser, the Company shall
repurchase the related Mortgage Loan at the Repurchase Price by deposit thereof
in the Custodial Account within 2 Business Days of receipt of such demand by the
Purchaser. The Company shall maintain the Fidelity Bond and Errors and Omissions
Insurance Policy as provided for in Section 4.12 insuring the Company against
any loss it may sustain with respect to any Mortgage Loan not satisfied in
accordance with the procedures set forth herein.
Section 6.03 SERVICING COMPENSATION.
As compensation for its services hereunder, the Company shall be
entitled to withdraw from the Custodial Account or to retain from interest
payments on the Mortgage Loans the amount of its Servicing Fee. The Servicing
Fee shall be payable monthly and shall be computed on the basis of the
outstanding principal balance and for the 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 payable solely from, the interest
portion of such Monthly Payments.
Additional servicing compensation in the form of assumption fees, to
the extent provided in Section 6.01, and late payment charges shall be retained
by the Company to the extent not required to be deposited in the Custodial
Account. The Company shall be required to pay all expenses incurred by it in
connection with its servicing activities hereunder and shall not be entitled to
reimbursement thereof except as specifically provided for herein.
Section 6.04 ANNUAL STATEMENTS AS TO COMPLIANCE.
(i) The Company shall deliver to the Purchaser, on or before February
28, 2006, an Officer's Certificate, stating that (x) a review of the activities
of the Company during the preceding calendar year and of performance under this
Agreement or similar agreements has been made under such officer's supervision,
and (y) to the best of such officer's knowledge, based on such review, the
Company has fulfilled all its obligations under this Agreement throughout such
year, or, if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officer and the nature and status
thereof and the action being taken by the Company to cure such default.
(ii) On or before March 1 of each calendar year, commencing in 2007,
the Company shall deliver to the Purchaser and any Depositor a statement of
compliance addressed to the Purchaser and such Depositor and signed by an
authorized officer of the Company, to the effect that (a) a review of the
Company's activities during the immediately preceding calendar year (or
applicable portion thereof) and of its performance under this Agreement and any
applicable Reconstitution Agreement during such period has been made under such
officer's supervision, and (b) to the best of such officers' knowledge, based on
such review, the Company has fulfilled all of its obligations under this
Agreement and any applicable Reconstitution Agreement in all material respects
throughout such calendar year (or applicable portion thereof) or, if there has
been a failure to fulfill any such obligation in any material respect,
specifically identifying each such failure known to such officer and the nature
and the status thereof.
Section 6.05 ANNUAL INDEPENDENT PUBLIC ACCOUNTANTS' SERVICING REPORT.
Except with respect to Securitization Transactions occurring on or
after January 1, 2006, on or before February 28, 2006, the Company, at its
expense, shall cause a firm of independent public accountants which is a member
of the American Institute of Certified Public Accountants to furnish a statement
to each Purchaser to the effect that such firm has examined certain documents
and records relating to the servicing of the mortgage loans similar in nature
and that such firm is of the opinion that the provisions of this or similar
agreements have been complied with, and that, on the basis of such examination
conducted substantially in compliance with the Single Attestation Program for
Mortgage Bankers, nothing has come to their attention which would indicate that
such servicing has not been conducted in compliance therewith, 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. By providing Purchaser a
copy of a Uniform Single Attestation Program Report from their independent
public accountant's on an annual basis, Company shall be considered to have
fulfilled its obligations under this Section 6.05.
Section 6.06 REPORT ON ASSESSMENT OF COMPLIANCE AND ATTESTATION.
With respect to any Mortgage Loans that are the subject of a
Securitization Transaction occurring on or before March 1 of each calendar year,
commencing in 2007, the Company shall:
(i) deliver to the Purchaser and any Depositor a report (in form
and substance reasonably satisfactory to the Purchaser and
such Depositor) regarding the Company's assessment of
compliance with the Servicing Criteria during the immediately
preceding calendar year, as required under Rules 13a-18 and
15d-18 of the Exchange Act and Item 1122 of Regulation AB.
Such report shall be addressed to the Purchaser and such
Depositor and signed by an authorized officer of the Company
and shall address each of the Servicing Criteria specified on
a certification substantially in the form of Exhibit D hereto;
(ii) deliver to the Purchaser and any Depositor a report of a
registered public accounting firm reasonably acceptable to the
Purchaser and such Depositor that attests to, and reports on,
the assessment of compliance made by the Company and delivered
pursuant to the preceding paragraph. Such attestation shall be
in accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation
S-X under the Securities Act and the Exchange Act;
(iii) cause each Subservicer and each Subcontractor, determined by
the Company pursuant to Section 425(b) to be "participating in
the servicing function" within the meaning of Item 1122 of
Regulation AB, to deliver to the Purchaser and such Depositor
an assessment of compliance and accountants' attestation as
and when provided in paragraphs (a) and (b) of this Section
6.06; and
(iv) deliver to the Purchaser, any Depositor and any other Person
that will be responsible for signing the certification (a
"Sarbanes Certification") required by Rules 13a-14(d) and
15d-14(d) under the Exchange Act (pursuant to Section 302 of
the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002) on behalf of an asset-backed
issuer with respect to a Securitization Transaction a
certification in the form attached hereto as Exhibit E.
The Company acknowledges that the parties identified in clause (iv)
above may rely on the certification provided by the Company pursuant to such
clause in signing a Sarbanes Certification and filing such with the Commission.
Section 6.07 REMEDIES.
(i) Any failure by the Company, any Subservicer, any Subcontractor or
any Third-Party Originator to deliver any information, report, certification,
accountants' letter or other material when and as required under Article 9,
Section 6.04, Section 6.05 or Section 6.06, or any breach by the Company of a
representation or warranty set forth in Section 9.01(e)(iv)(A), or in a writing
furnished pursuant to Section 9.01(e)(iv)(B) and made as of a date prior to the
closing date of the related Securitization Transaction, to the extent that such
breach is not cured by such closing date, or any breach by the Company of a
representation or warranty in a writing furnished pursuant to Section
9.01(e)(iv)(B) to the extent made as of a date subsequent to such closing date,
shall, except as provided in sub-clause (ii) of this Section, immediately and
automatically, without notice or grace period, constitute an Event of Default
with respect to the Company under this Agreement and any applicable
Reconstitution Agreement, and shall entitle the Purchaser or Depositor, as
applicable, in its sole discretion to terminate the rights and obligations of
the Company as servicer under this Agreement and/or any applicable
Reconstitution Agreement without payment (notwithstanding anything in this
Agreement or any applicable Reconstitution Agreement to the contrary) of any
compensation to the Company; provided that to the extent than any provision of
this Agreement and/or any applicable Reconstitution Agreement expressly provides
for the survival of certain rights or obligations following termination of the
Company as servicer, such provision shall be given effect.
(ii) Any failure by the Company, any Subservicer or any Subcontractor
to deliver any information, report, certification or accountants' letter when
and as required under Section 6.04, Section 6.05 or Section 6.06, including any
failure by the Company to identify any Subcontract "participating in the
servicing function" within the meaning of Item 1122 of Regulation AB, which
continues unremedied for ten (10) calendar days after the date on which such
information, report, certification or accountants' letter was required to be
delivered shall constitute an Event of Default with respect to the Company under
this Agreement and any applicable Reconstitution Agreement, and shall entitle
the Purchaser or Depositor, as applicable, in its sole discretion to terminate
the rights and obligations of the Company under this Agreement and/or any
applicable Reconstitution Agreement without payment (notwithstanding anything in
this Agreement to the contrary) of any compensation to the Company; provided
that to the extent that any provision of this Agreement and/or any applicable
Reconstitution Agreement expressly provides for the survival of certain rights
or obligations following termination of the Company as servicer, such provision
shall be given effect.
(iii) The Company shall promptly reimburse the Purchaser (or any
designee of the Purchaser, such as a master servicer) and any Depositor, as
applicable, for all reasonable expenses incurred by the Purchaser (or such
designee) or such Depositor, as such are incurred, in connection with the
termination of the Company as servicer and the transfer of servicing of the
Mortgage Loans to a successor servicer. The provisions of this paragraph shall
not limit whatever rights the Purchaser or any Depositor may have under other
provisions of this Agreement and/or any applicable Reconstitution Agreement or
otherwise, whether in equity or at law, such as an action for damages, specific
performance or injunctive relief.
SECTION 6.08 RIGHT TO EXAMINE COMPANY RECORDS.
The Purchaser, or its designee, shall have the right to examine and
audit any and all of the books, records, or other information of the Company,
whether held by the Company or by another on its behalf, with respect to or
concerning this Agreement or the Mortgage Loans, during business hours or at
such other times as may be reasonable under applicable circumstances, upon
reasonable advance notice. The Purchaser shall pay its own expenses associated
with such examination.
Section 6.09 COMPLIANCE WITH REMIC PROVISIONS.
If a REMIC election has been made with respect to the arrangement under
which the Mortgage Loans and REO Property are held, the Company shall not take
any action, cause the REMIC to take any action or fail to take (or fail to cause
to be taken) any action that, under the REMIC Provisions, if taken or not taken,
as the case may be, could (i) endanger the status of the REMIC as a REMIC or
(ii) result in the imposition of a tax upon the REMIC (including but not limited
to the tax on "prohibited transactions" as defined Section 860(a)(2) of the Code
and the tax on "contributions" to a REMIC set forth in Section 860(d) of the
Code) unless the Company has received an Opinion of Counsel (at the expense of
the party seeking to take such action) to the effect that the contemplated
action will not endanger such REMIC status or result in the imposition of any
such tax.
ARTICLE VII
COMPANY TO COOPERATE
Section 7.01 PROVISION OF INFORMATION.
During the term of this Agreement, the Company shall furnish to the
Purchaser such periodic, special, or other reports or information, and copies or
originals of any documents contained in the Servicing File for each Mortgage
Loan provided for herein. All other special reports or information not provided
for herein as shall be necessary, reasonable, or appropriate with respect to the
Purchaser or any regulatory agency will be provided at the Purchaser's expense.
All such reports, documents or information shall be provided by and in
accordance with all reasonable instructions and directions which the Purchaser
may give.
The Company shall execute and deliver all such instruments and take all
such action as the Purchaser may reasonably request from time to time, in order
to effectuate the purposes and to carry out the terms of this Agreement.
Section 7.02 FINANCIAL STATEMENTS; SERVICING FACILITY.
In connection with marketing the Mortgage Loans, the Purchaser may make
available to a prospective Purchaser a Consolidated Statement of Operations of
the Company for the most recently completed two (2) fiscal years for which such
a statement is available, as well as a Consolidated Statement of Condition at
the end of the last two fiscal years covered by such Consolidated Statement of
Operations. The Company also shall make available any comparable interim
statements to the extent any such statements have been prepared by or on behalf
of the Company (and are available upon request to members or stockholders of the
Company or to the public at large).
The Company also shall make available to Purchaser or prospective
Purchaser a knowledgeable financial or accounting officer for the purpose of
answering questions respecting recent developments affecting the Company or the
financial statements of the Company, and to permit any prospective purchaser to
inspect the Company's servicing facilities for the purpose of satisfying such
prospective purchaser that the Company has the ability to service the Mortgage
Loans as provided in this Agreement.
ARTICLE VIII
THE COMPANY
Section 8.01 INDEMNIFICATION; THIRD PARTY CLAIMS.
The Company shall indemnify the Purchaser and hold it harmless against
any and all claims, losses, damages, penalties, fines, forfeitures, reasonable
and necessary legal fees and related costs, judgments, and any other costs, fees
and expenses that the Purchaser may sustain in any way related to the failure of
the Company to perform its duties and service the Mortgage Loans in strict
compliance with the terms of this Agreement. The Company immediately shall
notify the Purchaser if a claim is made by a third party with respect to this
Agreement or the Mortgage Loans, assume (with the prior written consent of the
Purchaser) the defense of any such claim and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy any
judgment or decree which may be entered against it or the Purchaser in respect
of such claim. The Company shall follow any written instructions received from
the Purchaser in connection with such claim. The Purchaser promptly shall
reimburse the Company for all amounts advanced by it pursuant to the preceding
sentence except when the claim is in any way related to the Company's
indemnification pursuant to Section 3.03, or the failure of the Company to
service and administer the Mortgage Loans in strict compliance with the terms of
this Agreement.
Section 8.02 MERGER OR CONSOLIDATION OF THE COMPANY.
The Company shall keep in full effect its existence, rights and
franchises and shall obtain and preserve its qualification to do business in
each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Agreement or any of the Mortgage
Loans and to perform its duties under this Agreement.
Any Person into which the Company may be merged or consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Company shall be a party, or any Person succeeding to the business of the
Company, shall be the successor of the Company hereunder, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding, provided, however, that
the successor or surviving Person shall be an institution which is a ▇▇▇▇▇▇
▇▇▇/▇▇▇▇▇▇▇ Mac-approved company in good standing and has a net worth of no less
than $25 million. Furthermore, in the event the Company transfers or otherwise
disposes of all or substantially all of its assets to an affiliate of the
Company, such affiliate shall satisfy the condition above, and shall also be
fully liable to the Purchaser for all of the Company's obligations and
liabilities hereunder.
Section 8.03 LIMITATION ON LIABILITY OF COMPANY AND OTHERS.
Neither the Company nor any of the directors, officers, employees or
agents of the Company shall be under any liability to the Purchaser for any
action taken or for refraining from the taking of any action in good faith
pursuant to this Agreement, or for errors in judgment, provided, however, that
this provision shall not protect the Company or any such Person against any
breach of warranties or representations made herein, or failure to perform its
obligations in strict compliance with any standard of care set forth in this
Agreement or any other liability which would otherwise be imposed under this
Agreement. The Company and any director, officer, employee or agent of the
Company may rely in good faith on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising hereunder.
The Company shall not be under any obligation to appear in, prosecute or defend
any legal action which is not incidental to its duties to service the Mortgage
Loans in accordance with this Agreement and which in its opinion may involve it
in any expense or liability, provided, however, that the Company may, with the
consent of the Purchaser, undertake any such action which it may deem necessary
or desirable in respect to this Agreement and the rights and duties of the
parties hereto. In such event, the Company shall be entitled to reimbursement
from the Purchaser of the reasonable legal expenses and costs of such action.
Section 8.04 LIMITATION ON RESIGNATION AND ASSIGNMENT BY COMPANY.
The Purchaser has entered into this Agreement with the Company and
subsequent Purchaser will purchase the Mortgage Loans in reliance upon the
independent status of the Company, and the representations as to the adequacy of
its servicing facilities, plant, personnel, records and procedures, its
integrity, reputation and financial standing, and the continuance thereof.
Therefore, the Company shall neither assign this Agreement or the servicing
rights hereunder or delegate its rights or duties hereunder (other than pursuant
to Section 4.01) or any portion hereof or sell or otherwise dispose of all of
its property or assets without the prior written consent of the Purchaser, which
consent shall not be unreasonably withheld.
The Company shall not resign from the obligations and duties hereby
imposed on it except by mutual consent of the Company and the Purchaser or upon
the determination that its duties hereunder are no longer permissible under
applicable law and such incapacity cannot be cured by the Company. Any such
determination permitting the resignation of the Company shall be evidenced by an
Opinion of Counsel to such effect delivered to the Purchaser which Opinion of
Counsel shall be in form and substance acceptable to the Purchaser. No such
resignation shall become effective until a successor shall have assumed the
Company's responsibilities and obligations hereunder in the manner provided in
Section 12.01.
Without in any way limiting the generality of this Section 8.04, in the
event that the Company either shall assign this Agreement or the servicing
responsibilities hereunder or delegate its duties hereunder (other than pursuant
to Section 4.01) or any portion thereof or sell or otherwise dispose of all or
substantially all of its property or assets, without the prior written consent
of the Purchaser, then the Purchaser shall have the right to terminate this
Agreement upon notice given as set forth in Section 10.01, without any payment
of any penalty or damages and without any liability whatsoever to the Company or
any third party.
ARTICLE IX
SECURITIZATION TRANSACTIONS; WHOLE LOAN TRANSFERS AND AGENCY TRANSFERS
Section 9.01 Securitization Transactions; Whole Loan Transfers and
Agency Transfers
The Purchaser and the Company agree that with respect to some or all of
the Mortgage Loans, the Purchaser, at its sole option, may effect Whole Loan
Transfers, Agency Transfer or Securitization Transactions, retaining the Company
as the servicer thereof or subservicer if a master servicer is employed, or as
applicable the "seller/servicer." On the Reconstitution Date, the Mortgage Loans
transferred may cease to be covered by this Agreement; provided, however, that,
in the event that any Mortgage Loan transferred pursuant to this Section 9.01 is
rejected by the transferee, the Company shall continue to service such rejected
Mortgage Loan on behalf of the Purchaser in accordance with the terms and
provisions of this Agreement.
The Company shall cooperate with the Purchaser in connection with each
Whole Loan Transfer, Agency Transfer or Securitization Transaction in accordance
with this Section 9.01. In connection therewith:
(a) the Company shall make all representations and warranties with
respect to the Mortgage Loans as of the related Closing Date
and with respect to the Company itself as of the closing date
of each Whole Loan Transfer, Agency Transfer or Securitization
Transaction;
(b) the Company shall negotiate in good faith and execute any
seller/servicer agreements required to effectuate the
foregoing provided such agreements create no greater
obligation or cost on the part of the Company than otherwise
set forth in this Agreement;
(c) the Company shall provide as applicable:
(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 shall
request;
(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 believed
necessary by the trustee, any Rating Agency or the
Purchaser, as the case may be, in connection with
such Whole Loan Transfers, Agency Transfers or
Securitization Transactions. The Purchaser shall pay
all third party costs associated with the preparation
of such information. The Company shall execute any
seller/servicer agreements required within a
reasonable period of time after receipt of such
seller/servicer agreements which time shall be
sufficient for the Seller and Seller's counsel to
review such seller/servicer agreements. Under this
Agreement, the Company shall retain a Servicing Fee
for each Mortgage Loan, at no less than the
applicable Servicing Fee Rate; and
(iii) at any time as required by any Rating Agency, such
additional documents from the related Retained
Mortgage File to the Custodian as may be required by
such Rating Agency;
(d) the Company shall with respect to any Mortgage Loans that are
subject to a Securitization Transaction occurring on or before
December 31, 2005,in which the filing of a ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Certification directly with the Commission is required, by
February 28, 2006, or in connection with any additional
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification required to be filed upon thirty
(30) days written request, an officer of the Company shall
execute and deliver an Officer's Certification substantially
in the form attached hereto as Exhibit F, to the entity filing
the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification directly with the Commission
(such as the Purchaser, any master servicer, any trustee or
any depositor) for the benefit of such entity and such
entity's affiliates and the officers, directors and agents of
such entity and such entity's affiliates, and shall indemnify
such entity or persons arising out of any breach of Company's
obligations or representations relating thereto as provided in
such Officer's Certification.
(e) the Company shall, in connection with any Securitization
Transaction occurring on or after January 1, 2006, the Company
shall (1) within five (5) Business Days following request by
the Purchaser or any Depositor, provide to the Purchaser and
such Depositor (or, as applicable, cause each Third-Party
Originator and each Subservicer to provide), in writing and in
form and substance reasonably satisfactory to the Purchaser
and such Depositor, the information and materials specified in
paragraphs (i), (ii), (iii) and (vii) of this subsection (e),
and (2) as promptly as practicable following notice to or
discovery by the Company, provide to the Purchaser and any
Depositor (in writing and in form and substance reasonably
satisfactory to the Purchaser and such Depositor) the
information specified in paragraph (iv) of this subsection
(e).
(i) if so requested by the Purchaser or any Depositor,
the Company shall provide such information regarding
(1) the Company, as originator of the Mortgage Loans
(including as an acquirer of Mortgage Loans from a
Qualified Correspondent), or (2) each Third-Party
Originator, and (3) as applicable, each Subservicer,
as is requested for the purpose of compliance with
Items 1103(a)(1), 1105, 1110, 1117 and 1119 of
Regulation AB. Such information shall include, at a
minimum:
(A) the originator's form of organization;
(B) a description of the originator's
origination program and how long the
originator has been engaged in originating
residential mortgage loans, which
description shall include a discussion of
the originator's experience in originating
mortgage loans of a similar type as the
Mortgage Loans; information regarding the
size and composition of the originator's
origination portfolio; and information that
may be material, in the good faith judgment
of the Purchaser, to an analysis of the
performance of the Mortgage Loans, including
the originators' credit-granting or
underwriting criteria for mortgage loans of
similar type(s) as the Mortgage Loans and
such other information as the Purchaser or
any Depositor may reasonably request for the
purpose of compliance with Item 1110(b)(2)
of Regulation AB;
(C) a description of any material legal or
governmental proceedings pending (or known
to be contemplated) against the Company,
each Third-Party Originator and each
Subservicer; and
(D) a description of any affiliation or
relationship between the Company, each
Third-Party Originator, each Subservicer and
any of the following parties to a
Securitization Transaction, as such parties
are identified to the Company by the
Purchaser or any Depositor in writing in
advance of a Securitization Transaction:
(1) the sponsor;
(2) the depositor;
(3) the issuing entity;
(4) any servicer;
(5) any trustee;
(6) any originator;
(7) any significant obligor;
(8) any enhancement or support provider; and
(9) any other material transaction party.
(ii) If so requested by the Purchaser or any Depositor,
the Company shall provide (or, as applicable, cause
each Third-Party Originator to provide) Static Pool
Information with respect to the mortgage loans (of a
similar type as the Mortgage Loans, as reasonably
identified by the Purchaser as provided below)
originated by (1) the Company, if the Company is an
originator of Mortgage Loans (including as an
acquirer of Mortgage Loans from a Qualified
Correspondent), and/or (2) each Third-Party
Originator. Such Static Pool Information shall be
prepared by the Company (or Third-Party Originator)
on the basis of its reasonable, good faith
interpretation of the requirements of Item
1105(a)(1)-(3) of Regulation AB. To the extent that
there is reasonably available to the Company (or
Third-Party Originator) Static Pool Information with
respect to more than one mortgage loan type, the
Purchaser or any Depositor shall be entitled to
specify whether some or all of such information shall
be provided pursuant to this paragraph. The content
of such Static Pool Information may be in the form
customarily provided by the Company, and need not be
customized for the Purchaser or any Depositor. Such
Static Pool Information for each vintage origination
year or prior securitized pool, as applicable, shall
be presented in increments no less frequently than
quarterly over the life of the mortgage loans
included in the vintage origination year or prior
securitized pool. The most recent periodic increment
must be as of a date no later than 135 days prior to
the date of the prospectus or other offering document
in which the Static Pool Information is to be
included or incorporated by reference. The Static
Pool Information shall be provided in an electronic
format that provides a permanent record of the
information provided, such as a portable document
format (pdf) file, or other such electronic format
reasonably required by the Purchaser or the
Depositor, as applicable.
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.
(iii) If so requested by the Purchaser or any Depositor,
the Company shall provide such information regarding
the Company, as servicer of the Mortgage Loans, and
each Subservicer (each of the Company and each
Subservicer, for purposes of this paragraph, a
"Servicer"), as is requested for the purpose of
compliance with Items 1108 of Regulation AB. Such
information shall include, at a minimum:
(A) the Servicer's form of organization;
(B) a description of how long the Servicer has
been servicing residential mortgage loans; a
general discussion of the Servicer's
experience in servicing assets of any type
as well as a more detailed discussion of the
Servicer's experience in, and procedures
for, the servicing function it will perform
under this Agreement and any Reconstitution
Agreements; information regarding the size,
composition and growth of the Servicer's
portfolio of residential mortgage loans of a
type similar to the Mortgage Loans and
information on factors related to the
Servicer that may be material, in the good
faith judgment of the Purchaser or any
Depositor, to any analysis of the servicing
of the Mortgage Loans or the related
asset-backed securities, as applicable,
including, without limitation:
(1) whether any prior securitizations of
mortgage loans of a type similar to
the Mortgage Loans involving the
Servicer have defaulted or
experienced an early amortization or
other performance triggering event
because of servicing during the
three-year period immediately
preceding the related Securitization
Transaction;
(2) the extent of outsourcing the
Servicer utilizes;
(3) whether there has been previous
disclosure of material noncompliance
with the applicable servicing
criteria with respect to other
securitizations of residential
mortgage loans involving the
Servicer as a servicer during the
three-year period immediately
preceding the related Securitization
Transaction;
(4) whether the Servicer has been
terminated as servicer in a
residential mortgage loan
securitization, either due to a
servicing default or to application
of a servicing performance test or
trigger; and
(5) such other information as the
Purchaser or any Depositor may
reasonably request for the purpose
of compliance with Item 1108(b)(2)
of Regulation AB;
(C) a description of any material changes during
the three-year period immediately preceding
the related Securitization Transaction to
the Servicer's policies or procedures with
respect to the servicing function it will
perform under this Agreement and any
Reconstitution Agreements for mortgage loans
of a type similar to the Mortgage Loans;
(D) information regarding the Servicer's
financial condition, to the extent that
there is a material risk that an adverse
financial event or circumstance involving
the Servicer could have a material adverse
effect on the performance by the Company of
its servicing obligations under this
Agreement or any Reconstitution Agreement;
(E) information regarding advances made by the
Servicer on the Mortgage Loans and the
Servicer's overall servicing portfolio of
residential mortgage loans for the
three-year period immediately preceding the
related Securitization Transaction, which
may be limited to a statement by an
authorized officer of the Servicer to the
effect that the Servicer has made all
advances required to be made on residential
mortgage loans serviced by it during such
period, or, if such statement would not be
accurate, information regarding the
percentage and type of advances not made as
required, and the reasons for such failure
to advance;
(F) a description of the Servicer's processes
and procedures designed to address any
special or unique factors involved in
servicing loans of a similar type as the
Mortgage Loans;
(G) a description of the Servicer's processes
for handling delinquencies, losses,
bankruptcies and recoveries, such as through
liquidation of mortgaged properties, sale of
defaulted mortgage loans or workouts; and
(H) information as to how the Servicer defines
or determines delinquencies and charge-offs,
including the effect of any grace period,
re-aging, restructuring, partial payments
considered current or other practices with
respect to delinquency and loss experience.
(iv) If so requested by the Purchaser or any Depositor for
the purpose of satisfying its reporting obligation
under the Exchange Act with respect to any class of
asset-backed securities, the Company shall (or shall
cause each Subservicer and Third-Party Originator to)
(1) notify the Purchaser and any Depositor in writing
of (A) any material litigation or governmental
proceedings pending against the Company, any
Subservicer or any Third-Party Originator and (B) any
affiliations or relationships that develop following
the closing date of a Securitization Transaction
between the Company, any Subservicer or any
Third-Party Originator and any of the parties
specified in Section 9.01(e)(i)(D) (and any other
parties identified in writing by the requesting
party) with respect to such Securitization
Transaction, and (2) provide to the Purchaser and any
Depositor a description of such proceedings,
affiliations or relationships.
(v) As a condition to the succession to the Company or
any Subservicer as servicer or Subservicer under this
Agreement or any Reconstitution Agreement by any
Person (i) into which the Company or such Subservicer
may be merged or consolidated, or (ii) which may be
appointed as a successor to the Company or any
Subservicer, the Company shall provide to the
Purchaser and any Depositor, at least 15 calendar
days prior to the effective date of such succession
or appointment, (x) written notice to the Purchaser
and any Depositor of such succession or appointment
and (y) in writing and in form and substance
reasonably satisfactory to the Purchaser and such
Depositor, all information reasonably requested by
the Purchaser or any Depositor in order to comply
with is reporting obligation under Item 6.02 of Form
8-K with respect to any class of asset-backed
securities.
(vi) (A) The Company shall represent to the
Purchaser, as of the date on which
information is first provided to the
Purchaser under this Section 9.01(e) that,
except as disclosed in writing to the
Purchaser prior to such date: (1) the
Company is not aware and has not received
notice that any default, early amortization
or other performance triggering event has
occurred as to any other securitization due
to any act or failure to act of the Company;
(2) the Company has not been terminated as
servicer in a residential mortgage loan
securitization, either due to a servicing
default or to application of a servicing
performance test or trigger; (3) no material
noncompliance with the applicable servicing
criteria with respect to other
securitizations of residential mortgage
loans involving the Company as servicer has
been disclosed or reported by the Company;
(4) no material changes to the Company's
policies or procedures with respect to the
servicing function it will perform under
this Agreement and any Reconstitution
Agreement for mortgage loans of a type
similar to the Mortgage Loans have occurred
during the three-year period immediately
preceding the related Securitization
Transaction; (5) there are no aspects of the
Company's financial condition that could
have a material adverse effect on the
performance by the Company of its servicing
obligations under this Agreement or any
Reconstitution Agreement; (6) there are no
material legal or governmental proceedings
pending (or known to be contemplated)
against the Company, any Subservicer or any
Third-Party Originator; and (7) there are no
affiliations, relationships or transactions
relating to the Company, any Subservicer or
any Third-Party Originator with respect to
any Securitization Transaction and any party
thereto identified by the related Depositor
of a type described in Item 1119 of
Regulation AB.
(B) If so requested by the Purchaser on any date
following the date on which information is
first provided to the Purchaser under this
Section 9.01(e), the Company shall, within
five (5) Business Days following such
request, confirm in writing the accuracy of
the representations and warranties set forth
in sub clause (A) above or, if any such
representation and warranty is not accurate
as of the date of such request, provide
reasonably adequate disclosure of the
pertinent facts, in writing, to the
requesting party.
(vii) In addition to such information as the Company, as
servicer, is obligated to provide pursuant to other
provisions of this Agreement, if so requested by the
Purchaser or any Depositor, the Company shall provide
such information reasonably available to the Company
regarding the performance of the Mortgage Loans as is
reasonably required to facilitate preparation of
distribution reports in accordance with Item 1121 of
Regulation AB.
(f) 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 responsible for the preparation, execution
or filing of any report required to be filed with the
Commission with respect to such Securitization Transaction, or
for execution of a certification pursuant to Rule 13a-14(d) or
Rule 15d-14(d) under the Exchange Act with respect to such
Securitization Transaction; each broker dealer acting as
underwriter, placement agent or initial purchaser, each Person
who controls any of such parties or the Depositor (within the
meaning of Section 15 of the Securities Act and Section 20 of
the Exchange Act); and the respective present and former
directors, officers, employees and agents of each of the
foregoing and of the Depositor, and shall hold each of them
harmless from and against any losses, damages, penalties,
fines, forfeitures, legal fees and expenses and related costs,
judgments, and any other costs, fees and expenses that any of
them may sustain arising out of or based upon:
(i) (A) any untrue statement of a material fact
contained or alleged to be contained in any
information, report, certification,
accountants' letter or other material
provided under Sections 9.01(c) and (e) by
or on behalf of the Company, or provided
under Sections 9.01(c) and (e) by or on
behalf of any Subservicer, Subcontractor or
Third-Party Originator (collectively, the
"Company Information"), or (B) the omission
or alleged omission to state in the Company
Information a material fact required to be
stated in the Company Information or
necessary in order to make the statements
therein, in the light of the circumstances
under which they were made, not misleading;
PROVIDED, BY WAY OF CLARIFICATION, that
clause (B) of this paragraph shall be
construed solely by reference to the Company
Information and not to any other information
communicated in connection with a sale or
purchase of securities, without regard to
whether the Company Information or any
portion thereof is presented together with
or separately from such other information;
(ii) 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 9.01(c) and (e), including any
failure by the Company to identify any
Subcontractor "participating in the
servicing function" within the meaning of
Item 1122 of Regulation AB; or
(iii) any breach by the Company of a
representation or warranty set forth in
Section 9.01(e)(iv)(A) or in a writing
furnished pursuant to Section 9.01(e)(iv)(B)
and made as of a date prior to the closing
date of the related Securitization
Transaction, to the extent that such breach
is not cured by such closing date, or any
breach by the Company of a representation or
warranty in a writing furnished pursuant to
Section 9.01(e)(iv)(B) to the extent made as
of a date subsequent to such closing date.
In the case of any failure of performance described in
sub-clause (ii) of this Section 9.01(f), 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.
(g) the Purchaser and each Person who controls the Purchaser shall
indemnify the Company, each affiliate of the Company, each
Person who controls any of such parties or the Company (within
the meaning of Section 15 of the Securities Act and Section 20
of the Exchange Act) and the respective present and former
directors, officers, employees and agents of each of the
foregoing and of the Company, and shall hold each of them
harmless from and against any losses, damages, penalties,
fines, forfeitures, legal fees and expenses and related costs,
judgments, and any other costs, fees and expenses that any of
them may sustain arising out of or based upon:
(i) (A) any untrue statement of a material fact contained
or alleged to be contained in any offering materials
related to a Securitization Transaction, including
without limitation the registration statement,
prospectus, prospectus supplement, any private
placement memorandum, any offering circular, any
computational materials, and any amendments or
supplements to the foregoing (collectively, the
"Securitization Materials") or (B) the omission or
alleged omission to state in the Securitization
Materials a material fact required to be stated in
the Securitization Materials or necessary in order to
make the statements therein, in the light of the
circumstances under which they were made, not
misleading, but only to the extent that such untrue
statement or alleged untrue statement or omission or
alleged omission is other than a statement or
omission arising out of, resulting from, or based
upon the Company Information.
The Purchaser and the Company acknowledge and agree that the purpose of
Section 9.01(e) is to facilitate compliance by the Purchaser and any Depositor
with the provisions of Regulation AB and related rules and regulations of the
Commission. Neither the Purchaser nor any Depositor shall exercise its right to
request delivery of information or other performance under these provisions
other than in good faith, or for purposes other than compliance with the
Securities Act, the Exchange Act and the rules and regulations of the Commission
thereunder. The Company acknowledges that interpretations of the requirements of
Regulation AB may change over time, whether due to interpretive guidance
provided by the Commission or its staff, consensus among participants in the
asset-backed securities markets, advice of counsel, or otherwise, and agrees to
comply with requests made by the Purchaser or any Depositor in good faith for
delivery of information under these provisions on the basis of evolving
interpretations of Regulation AB. In connection with any Securitization
Transaction, the Company shall cooperate fully with the Purchaser to deliver to
the Purchaser (including any of its assignees or designees) and any Depositor,
any and all statements, reports, certifications, records and any other
information necessary in the good faith determination of the Purchaser or any
Depositor to permit the Purchaser or such Depositor to comply with the
provisions of Regulation AB, together with such disclosures relating to the
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.
In the event the Purchaser has elected to have the Company hold record
title to the Mortgages, prior to the Reconstitution Date the Company shall
prepare an Assignment of Mortgage in blank or to the trustee from the Company
acceptable to the trustee for each Mortgage Loan that is part of the Whole Loan
Transfers, Agency Transfer or Securitization Transactions. The Company shall pay
all preparation and recording costs associated with the initial Assignment of
Mortgage. The Company shall execute each Assignment of Mortgage, track such
Assignments of Mortgage to ensure they have been recorded and deliver them as
required by the trustee upon the Company's receipt thereof. Additionally, the
Company shall prepare and execute, at the direction of the Purchaser, any note
endorsements in connection with any and all seller/servicer agreements. If
required at any time by a Rating Agency, Purchaser or successor purchaser in
connection with any Whole Loan Transfer, Agency Sale or Securitization
Transaction, the Company shall deliver such additional documents from its
Retained Mortgage File within thirty (30) Business Days to the Custodian,
successor purchaser or other designee of the Purchaser as said Rating Agency,
Purchaser or successor purchaser may require.
All Mortgage Loans (i) not sold or transferred pursuant to Whole Loan
Transfers, Agency Transfer or Securitization Transactions or (ii) that are
subject to a Securitization for which the related trust is terminated for any
reason, shall remain subject to this Agreement and shall continue to be serviced
in accordance with the terms of this Agreement and with respect thereto this
Agreement shall remain in full force and effect.
ARTICLE X
DEFAULT
Section 10.01 EVENTS OF DEFAULT.
Each of the following shall constitute an Event of Default on the part
of the Company:
(i) any failure by the Company to remit to the Purchaser any
payment required to be made under the terms of this Agreement
which continues unremedied for a period of two Business Days
after the date upon which written notice of such failure,
requiring the same to be remedied, shall have been given to
the Company by the Purchaser; or
(ii) failure by the Company duly to observe or perform in any
material respect any other of the covenants or agreements on
the part of the Company set forth in this Agreement or in the
Custodial Agreement which continues unremedied for a period of
90 days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been
given to the Company by the Purchaser or by the Custodian; or
(iii) failure by the Company to maintain its license to do business
in any jurisdiction where the Mortgaged Property is located if
such license is required; or
(iv) a decree or order of a court or agency or supervisory
authority having jurisdiction for the appointment of a
conservator or receiver or liquidator in any insolvency,
readjustment of debt, including bankruptcy, marshaling of
assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been
entered against the Company and such degree or order shall
have remained in force undischarged or unstayed for a period
of 60 days; or
(v) the Company shall consent to the appointment of a conservator
or receiver or liquidator in any insolvency, readjustment of
debt, marshaling of assets and liabilities or similar
proceedings of or relating to the Company or of or relating to
all or substantially all of its property; or
(vi) the Company shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take
advantage of any applicable insolvency, bankruptcy or
reorganization statute, make an assignment for the benefit of
its creditors, voluntarily suspend payment of its obligations
or cease its normal business operations; or
(vii) the Company ceases to meet the qualifications of a ▇▇▇▇▇▇
Mae/▇▇▇▇▇▇▇ Mac servicer; or
(viii) the Company attempts to assign its right to servicing
compensation hereunder or to assign this Agreement or the
servicing responsibilities hereunder or to delegate its duties
hereunder or any portion thereof in violation of Section 8.04.
In each and every such case, so long as an Event of Default shall not
have been remedied, in addition to whatever rights the Purchaser may have at law
or equity to damages, including injunctive relief and specific performance, the
Purchaser, by notice in writing to the Company, may terminate all the rights and
obligations of the Company under this Agreement and in and to the Mortgage Loans
and the proceeds thereof.
Upon receipt by the Company of such written notice, all authority and
power of the Company under this Agreement, whether with respect to the Mortgage
Loans or otherwise, shall pass to and be vested in the successor appointed
pursuant to Section 12.01. Upon written request from any Purchaser, the Company
shall prepare, execute and deliver to the successor entity designated by the
Purchaser any and all documents and other instruments, place in such successor's
possession all Servicing Files, and do or cause to be done all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, including but not limited to the transfer and endorsement or
assignment of the Mortgage Loans and related documents, at the Company's sole
expense. The Company shall cooperate with the Purchaser and such successor in
effecting the termination of the Company's responsibilities and rights
hereunder, including without limitation, the transfer to such successor for
administration by it of all cash amounts which shall at the time be credited by
the Company to the Custodial Account, Subsidy Account or Escrow Account or
thereafter received with respect to the Mortgage Loans.
Section 10.02 WAIVER OF DEFAULTS.
By a written notice, the Purchaser may waive any default by the Company
in the performance of its obligations hereunder and its consequences. Upon any
waiver of a past default, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any subsequent or
other default or impair any right consequent thereon except to the extent
expressly so waived.
ARTICLE XI
TERMINATION
Section 11.01 TERMINATION.
This Agreement shall terminate upon either: (i) the later of the final
payment or other liquidation (or any advance with respect thereto) of the last
Mortgage Loan or the disposition of any REO Property with respect to the last
Mortgage Loan and the remittance of all funds due hereunder; or (ii) mutual
consent of the Company and the Purchaser in writing.
Section 11.02 TERMINATION WITHOUT CAUSE.
The Purchaser may terminate, at its sole option, any rights the Company
may have hereunder, without cause as provided in this Section 11.02. Any such
notice of termination shall be in writing and delivered to the Company by
registered mail as provided in Section 12.05.
The Company shall be entitled to receive, as such liquidated damages,
upon the transfer of the servicing rights, an amount equal to: (i) 2.75% of the
aggregate outstanding principal amount of the Mortgage Loans as of the
termination date paid by the Purchaser to the Company with respect to all of the
Mortgage Loans for which a servicing fee rate of .25% is paid per annum, (ii)
3.25% of the aggregate outstanding principal amount of the Mortgage Loans as of
the termination date paid by the Purchaser to the Company with respect to all of
the Mortgage Loans for which a servicing fee rate of .375% is paid per annum,
and (iii) 3.75% of the aggregate outstanding principal amount of the Mortgage
Loans as of the termination date paid by the Purchaser to the Company with
respect to all of the Mortgage Loans for which a servicing fee rate of .44% or
greater is paid per annum.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 SUCCESSOR TO COMPANY.
Prior to termination of the Company's responsibilities and duties under
this Agreement pursuant to Sections 8.04, 10.01, 11.01 (ii) or 11.02 the
Purchaser shall, (i) succeed to and assume all of the Company's
responsibilities, rights, duties and obligations under this Agreement, or (ii)
appoint a successor having the characteristics set forth in Section 8.02 and
which shall succeed to all rights and assume all of the responsibilities, duties
and liabilities of the Company under this Agreement prior to the termination of
Company's responsibilities, duties and liabilities under this Agreement. In
connection with such appointment and assumption, the Purchaser may make such
arrangements for the compensation of such successor out of payments on Mortgage
Loans as it and such successor shall agree. In the event that the Company's
duties, responsibilities and liabilities under this Agreement should be
terminated pursuant to the aforementioned sections, the Company shall discharge
such duties and responsibilities during the period from the date it acquires
knowledge of such termination until the effective date thereof with the same
degree of diligence and prudence which it is obligated to exercise under this
Agreement, and shall take no action whatsoever that might impair or prejudice
the rights or financial condition of its successor. The resignation or removal
of the Company pursuant to the aforementioned sections shall not become
effective until a successor shall be appointed pursuant to this Section 12.01
and shall in no event relieve the Company of the representations and warranties
made pursuant to Sections 3.01 and 3.02 and the remedies available to the
Purchaser under Section 3.03, it being understood and agreed that the provisions
of such Sections 3.01, 3.02, 3.03 and 8.01 shall be applicable to the Company
notwithstanding any such sale, assignment, resignation or termination of the
Company, or the termination of this Agreement.
Any successor appointed as provided herein shall execute, acknowledge
and deliver to the Company and to the Purchaser an instrument accepting such
appointment, wherein the successor shall make the representations and warranties
set forth in Section 3.01, except for subsection (h) with respect to the sale of
the Mortgage Loans and subsections (i) and (k) thereof, whereupon such successor
shall become fully vested with all the rights, powers, duties, responsibilities,
obligations and liabilities of the Company, with like effect as if originally
named as a party to this Agreement. Any termination or resignation of the
Company or termination of this Agreement pursuant to Section 8.04, 10.01, 11.01
or 11.02 shall not affect any claims that any Purchaser may have against the
Company arising out of the Company's actions or failure to act prior to any such
termination or resignation.
The Company shall deliver promptly to the successor servicer the funds
in the Custodial Account, Subsidy Account and Escrow Account and all Servicing
Files and related documents and statements held by it hereunder and the Company
shall account for all funds and shall execute and deliver such instruments and
do such other things as may reasonably be required to more fully and
definitively vest in the successor all such rights, powers, duties,
responsibilities, obligations and liabilities of the Company.
Upon a successor's acceptance of appointment as such, the Company shall
notify by mail the Purchaser of such appointment in accordance with the
procedures set forth in Section 12.05.
Section 12.02 AMENDMENT.
This Agreement may be amended from time to time by written agreement
signed by the Company and the Purchaser.
Section 12.03 GOVERNING LAW.
This Agreement shall be construed in accordance with the laws of the
State of New York and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws.
Each of the Company and the Purchaser hereby knowingly, voluntarily and
intentionally waives any and all rights it may have to a trial by jury in
respect or any litigation based on, or arising out of, under, or in connection
with, this Agreement, or any other documents and instruments executed in
connection herewith, or any course of conduct, course of dealing, statements
(whether oral or written), or actions of the Company or the Purchaser. This
provision is a material inducement for the Purchaser to enter into this
Agreement.
Section 12.04 DURATION OF AGREEMENT.
This Agreement shall continue in existence and effect until terminated
as herein provided. This Agreement shall continue notwithstanding transfers of
the Mortgage Loans by the Purchaser.
Section 12.05 NOTICES.
All demands, notices and communications hereunder shall be in writing
and shall be deemed to have been duly given if personally delivered at or mailed
by registered mail, postage prepaid, addressed as follows:
(i) if to the Company with respect to servicing and investor reporting
issues:
▇▇▇▇▇ Fargo Bank, N.A.
1 Home Campus
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, MAC X2401-042
If to the Company with respect to all other issues:
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Structured Finance Manager, MAC X3906-012
In each instance with a copy to:
▇▇▇▇▇ Fargo Bank, N.A.
1 Home Campus
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: General Counsel, MAC X2401-06T
or such other address as may hereafter be furnished to the
Purchaser in writing by the Company;
(ii) if to Purchaser:
EMC Mortgage Corporation
Mac ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
With a copy to:
Bear ▇▇▇▇▇▇▇ Mortgage Capital Corp.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Section 12.06 SEVERABILITY OF PROVISIONS.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be held invalid for any reason whatsoever, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement.
Section 12.07 RELATIONSHIP OF PARTIES.
Nothing herein contained shall be deemed or construed to create a
partnership or joint venture between the parties hereto and the services of the
Company shall be rendered as an independent contractor and not as agent for the
Purchaser.
Section 12.08 EXECUTION; SUCCESSORS AND ASSIGNS.
This Agreement may be executed in one or more counterparts and by the
different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together, shall
constitute one and the same agreement. Subject to Section 8.04, this Agreement
shall inure to the benefit of and be binding upon the Company and the Purchaser
and their respective successors and assigns.
Section 12.09 RECORDATION OF ASSIGNMENTS OF MORTGAGE.
To the extent permitted by applicable law, each of the Assignments of
Mortgage is subject to recordation in all appropriate public offices for real
property records in all the counties or other comparable jurisdictions in which
any or all of the Mortgaged Properties are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected at the Company's expense in the event recordation is either necessary
under applicable law or requested by the Purchaser at its sole option.
Section 12.10 ASSIGNMENT BY PURCHASER.
The Purchaser shall have the right, without the consent of the Company
but subject to the limit set forth in Section 2.02 hereof, to assign, in whole
or in part, its interest under this Agreement with respect to some or all of the
Mortgage Loans, and designate any person to exercise any rights of the Purchaser
hereunder, by executing an Assignment, Assumption and Recognition Agreement
substantially in the form attached as Exhibit G and the assignee or designee
shall accede to the rights and obligations hereunder of the Purchaser with
respect to such Mortgage Loans. All references to the Purchaser in this
Agreement shall be deemed to include its assignee or designee.
Section 12.11 SOLICITATION OF MORTGAGOR.
Neither party shall, after the related Closing Date, take any action to
solicit the refinancing of any Mortgage Loan. It is understood and agreed that
neither (i) promotions undertaken by either party or any affiliate of either
party which are directed to the general public at large, including, without
limitation, mass mailings based upon commercially acquired mailing lists,
newspaper, radio, television advertisements nor (ii) serving the refinancing
needs of a Mortgagor who, without solicitation, contacts either party in
connection with the refinance of such Mortgage or Mortgage Loan, shall
constitute solicitation under this Section.
[Intentionally Blank - Next Page Signature Page]
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.
EMC MORTGAGE CORPORATION ▇▇▇▇▇ FARGO BANK, N.A.
PURCHASER COMPANY
By: By:
------------------------------ ----------------------------------
Name: Name:
---------------------------- --------------------------------
Title: Title:
--------------------------- -------------------------------
STATE OF )
) ss:
COUNTY OF ___________ )
On the _____ day of _______________, 20___ before me, a Notary Public
in and for said State, personally appeared , known to me to be of ▇▇▇▇▇ Fargo
Bank, N.A., the national banking association that executed the within instrument
and also known to me to be the person who executed it on behalf of said bank,
and acknowledged to me that such bank executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand affixed my office seal
the day and year in this certificate first above written.
--------------------------------------------
Notary Public
My Commission expires
----------------------
STATE OF )
) ss:
COUNTY OF )
On the _____ day of _______________, 20___ before me, a Notary Public
in and for said State, personally appeared
_____________________________________, known to me to be the
______________________________ of EMC Mortgage Corporation, the corporation that
executed the within instrument and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand affixed my office seal
the day and year in this certificate first above written.
--------------------------------------------
Notary Public
My Commission expires
----------------------
EXHIBIT A
FORM OF ASSIGNMENT AND CONVEYANCE AGREEMENT
On this _____ day of __________, 20___, ▇▇▇▇▇ Fargo Bank, N.A. (the
"SELLER") as the Seller under that certain Amended and Restated Master Mortgage
Loan Purchase Agreement, ("Purchase Agreement") and as the Company under that
certain Amended and Restated Master Seller's Warranties and Servicing Agreement
(the "Servicing Agreement") each dated as of _______________, 20___,
(collectively, the "AGREEMENTS") does hereby sell, transfer, assign, set over
and convey to EMC Mortgage Corporation as the Purchaser (the "PURCHASER") under
the Purchase Agreement, and Purchaser hereby accepts from Seller, without
recourse, but subject to the terms of the Agreements, all right, title and
interest of, in and to the Mortgage Loans listed on the Mortgage Loan Schedule
attached hereto as EXHIBIT A, together with the Custodial Mortgage Files and
Retained Mortgage Files and all rights and obligations arising under the
documents contained therein. Pursuant to Section 2.03 of the Servicing
Agreement, the Seller has delivered to the Custodian the documents for each
Mortgage Loan to be purchased. The Servicing Files retained by the Seller
pursuant to Section 2.01 of the Servicing Agreement shall be appropriately
marked to clearly reflect the sale of the related Mortgage Loans to the
Purchaser.
Capitalized terms used herein and not otherwise defined shall have the
meanings set forth in the Agreements.
EMC MORTGAGE CORPORATION ▇▇▇▇▇ FARGO BANK, N.A.
PURCHASER COMPANY
By: By:
------------------------------ -----------------------------
Name: Name:
---------------------------- -----------------------------
Title: Title:
--------------------------- ----------------------------
EXHIBIT B
CUSTODIAL AGREEMENT
EXHIBIT C
CONTENTS OF EACH RETAINED MORTGAGE FILE,
SERVICING FILE AND CUSTODIAL MORTGAGE FILE
With respect to each Mortgage Loan, the Retained Mortgage File and
Custodial Mortgage File shall include each of the following items, which shall
be available for inspection by the Purchaser and any prospective Purchaser, and
which shall be retained by the Company in the Retained Mortgage File or
Servicing File or delivered to the Custodian pursuant to Sections 2.01 and 2.03
of the Seller's Warranties and the Servicing Agreement to which this Exhibit is
attached (the "Agreement"):
1. The original Mortgage Note bearing all intervening
endorsements, endorsed "Pay to the order of without recourse"
and signed in the name of the Company by an authorized officer
(in the event that the Mortgage Loan was acquired by the
Company in a merger, the signature must be in the following
form: "[Company], successor by merger to [name of
predecessor]"; and in the event that the Mortgage Loan was
acquired or originated by the Company while doing business
under another name, the signature must be in the following
form: "[Company], formerly know as [previous name]").
2. The original of any guarantee executed in connection with the
Mortgage Note (if any).
3. The original Mortgage, with evidence of recording thereon or a
certified true and correct copy of the Mortgage sent for
recordation. If in connection with any Mortgage Loan, the
Company cannot deliver or cause to be delivered the original
Mortgage with evidence of recording thereon on or prior to the
related Closing Date because of a delay caused by the public
recording office where such Mortgage has been delivered for
recordation or because such Mortgage has been lost or because
such public recording office retains the original recorded
Mortgage, the Company shall deliver or cause to be delivered
to the Custodian, a photocopy of such Mortgage, together with
(i) in the case of a delay caused by the public recording
office, an Officer's Certificate of the Company stating that
such Mortgage has been dispatched to the appropriate public
recording office for recordation and that the original
recorded Mortgage or a copy of such Mortgage certified by such
public recording office to be a true and complete copy of the
original recorded Mortgage will be promptly delivered to the
Custodian upon receipt thereof by the Company; or (ii) in the
case of a Mortgage where a public recording office retains the
original recorded Mortgage or in the case where a Mortgage is
lost after recordation in a public recording office, a copy of
such Mortgage certified by such public recording office or by
the title insurance company that issued the title policy to be
a true and complete copy of the original recorded Mortgage.
Further, with respect to MERS Mortgage Loans, (a) the
Mortgage names MERS as the Mortgagee and (b) the requirements
set forth in the Electronic Tracking Agreement have been
satisfied, with a conformed recorded copy to follow as soon as
the same is received by the Company.
4. the originals or certified true copies of any document sent
for recordation of all assumption, modification, consolidation
or extension agreements, with evidence of recording thereon.
5. The original Assignment of Mortgage for each Mortgage Loan, in
form and substance acceptable for recording (except for the
insertion of the name of the assignee and recording
information). The Assignment of Mortgage must be duly recorded
only if recordation is either necessary under applicable law
or commonly required by private institutional mortgage
investors in the area where the Mortgaged Property is located
or on direction of the Purchaser as provided in the Custodial
Agreement. If the Assignment of Mortgage is to be recorded,
the Mortgage shall be assigned to the Purchaser. If the
Assignment of Mortgage is not to be recorded, the Assignment
of Mortgage shall be delivered in blank. If the Mortgage Loan
was acquired by the Company in a merger, the Assignment of
Mortgage must be made by "[Company], successor by merger to
[name of predecessor]." If the Mortgage Loan was acquired or
originated by the Company while doing business under another
name, the Assignment of Mortgage must be by "[Company],
formerly know as [previous name]."
6. Originals or certified true copies of documents sent for
recordation of all intervening assignments of the Mortgage
with evidence of recording thereon, or if any such intervening
assignment has not been returned from the applicable recording
office or has been lost or if such public recording office
retains the original recorded assignments of mortgage, the
Company shall deliver or cause to be delivered to the
Custodian, a photocopy of such intervening assignment,
together with (i) in the case of a delay caused by the public
recording office, an Officer's Certificate of the Company
stating that such intervening assignment of mortgage has been
dispatched to the appropriate public recording office for
recordation and that such original recorded intervening
assignment of mortgage or a copy of such intervening
assignment of mortgage certified by the appropriate public
recording office or by the title insurance company that issued
the title policy to be a true and complete copy of the
original recorded intervening assignment of mortgage will be
promptly delivered to the Custodian upon receipt thereof by
the Company; or (ii) in the case of an intervening assignment
where a public recording office retains the original recorded
intervening assignment or in the case where an intervening
assignment is lost after recordation in a public recording
office, a copy of such intervening assignment certified by
such public recording office to be a true and complete copy of
the original recorded intervening assignment.
7. The electronic form of PMI Policy as identified by certificate
number.
8. The original mortgagee policy of title insurance or other
evidence of title such as a copy of the title commitment or
copy of the preliminary title commitment.
9. Any security agreement, chattel mortgage or equivalent
executed in connection with the Mortgage.
10. Original power of attorney, if applicable.
(a) 11. For each Cooperative Loan, the original or a seller
certified true copy of the following:
The original Pledge Agreement entered into by the
Mortgagor with respect to such Cooperative Loan;
UCC-3 assignment in blank (or equivalent instrument),
sufficient under the laws of the jurisdiction where
the related Cooperative Apartment is located to
reflect of record the sale and assignment of the
Cooperative Loan to the Purchaser;
Original assignment of Pledge Agreement in blank
showing a complete chain of assignment from the
originator of the related Cooperative Loan to the
Company;
Original Form UCC-1 and any continuation statements
with evidence of filing thereon with respect to such
Cooperative Loan;
Cooperative Shares with a Stock Certificate in blank
attached;
Original Proprietary Lease;
Original Assignment of Proprietary Lease, in blank,
and all intervening assignments thereof;
Original recognition agreement of the interests of
the mortgagee with respect to the Cooperative Loan by
the Cooperative, the stock of which was pledged by
the related Mortgagor to the originator of such
Cooperative Loan; and
Originals of any assumption, consolidation or
modification agreements relating to any of the items
specified above.
With respect to each Mortgage Loan, the Servicing File shall include each of the
following items to the extent in the possession of the Company or in the
possession of the Company's agent(s):
12. The original hazard insurance policy and, if required by law,
flood insurance policy, in accordance with Section 4.10 of the
Agreement.
13. Residential loan application.
14. Mortgage Loan closing statement.
15. Verification of employment and income, unless originated under
the Company's Limited Documentation program, ▇▇▇▇▇▇ ▇▇▇
Timesaver Plus.
16. Verification of acceptable evidence of source and amount of
down payment.
17. Credit report on the Mortgagor.
18. Residential appraisal report.
19. Photograph of the Mortgaged Property.
20. Survey of the Mortgage property, if required by the title
company or applicable law.
21. Copy of each instrument necessary to complete identification
of any exception set forth in the exception schedule in the
title policy, i.e. map or plat, restrictions, easements, sewer
agreements, home association declarations, etc.
22. All required disclosure statements.
23. If available, termite report, structural engineer's report,
water potability and septic certification.
24. Sales contract, if applicable.
25. Evidence of payment of taxes and insurance premiums, insurance
claim files, correspondence, current and historical
computerized data files, and all other processing,
underwriting and closing papers and records which are
customarily contained in a mortgage loan file and which are
required to document the Mortgage Loan or to service the
Mortgage Loan.
26. Amortization schedule, if available.
27. Payment history for any Mortgage Loan that has been closed for
more than 90 days.
In the event an Officer's Certificate of the Company is delivered to
the Custodian because of a delay caused by the public recording office in
returning any recorded document, the Company shall deliver to the Custodian,
within 240 days of the related Closing Date, an Officer's Certificate which
shall (i) identify the recorded document, (ii) state that the recorded document
has not been delivered to the Custodian due solely to a delay caused by the
public recording office, (iii) state the amount of time generally required by
the applicable recording office to record and return a document submitted for
recordation, and (iv) specify the date the applicable recorded document will be
delivered to the Custodian. The Company shall be required to deliver to the
Custodian the applicable recorded document by the date specified in (iv) above.
An extension of the date specified in (iv) above may be requested from the
Purchaser, which consent shall not be unreasonably withheld.
EXHIBIT D
SERVICING CRITERIA TO BE ADDRESSED
IN ASSESSMENT OF COMPLIANCE
APPLICABLE INAPPLICABLE
REG AB REFERENCE SERVICING CRITERIA SERVICING SERVICING
CRITERIA CRITERIA
------------------- ----------------------------------------------------------------------------- ---------- ------------
GENERAL SERVICING CONSIDERATIONS
------------------- ----------------------------------------------------------------------------- ---------- ------------
1122(d)(1)(i) Policies and procedures are instituted to monitor any
performance or other triggers and events of default in
accordance with the transaction agreements.
------------------- ----------------------------------------------------------------------------- ---------- ------------
1122(d)(1)(ii) If any material servicing activities are outsourced to third
parties, policies and procedures are instituted to monitor
the third party's performance and compliance with such
servicing activities.
------------------- ----------------------------------------------------------------------------- ---------- ------------
Any requirements in the transaction agreements to maintain a
back-up 1122(d)(1)(iii) servicer for the mortgage loans are maintained.
------------------- ----------------------------------------------------------------------------- ---------- ------------
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect
on the party participating in the servicing function
throughout the reporting period in the amount of coverage
required by and otherwise in accordance with the terms of
the transaction agreements.
------------------- ----------------------------------------------------------------------------- ---------- ------------
CASH COLLECTION AND ADMINISTRATION
------------------- ----------------------------------------------------------------------------- ---------- ------------
1122(d)(2)(i) Payments on mortgage loans are deposited into the
appropriate custodial bank accounts and related bank
clearing accounts no more than two business days following
receipt, or such other number of days specified in the
transaction agreements.
------------------- ----------------------------------------------------------------------------- ---------- ------------
Disbursements made via wire transfer on behalf of an obligor
or to an 1122(d)(2)(ii) investor are made only by authorized personnel.
------------------- ----------------------------------------------------------------------------- ---------- ------------
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
1122(d)(2)(iii) as specified in the transaction agreements.
------------------- ----------------------------------------------------------------------------- ---------- ------------
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
1122(d)(2)(iv) transaction agreements.
------------------- ----------------------------------------------------------------------------- ---------- ------------
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
1122(d)(2)(v) meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange Act.
------------------- ----------------------------------------------------------------------------- ---------- ------------
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized access.
------------------- ----------------------------------------------------------------------------- ---------- ------------
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all
asset-backed securities related bank accounts, including
custodial accounts and related bank clearing accounts. These
reconciliations are (A) mathematically accurate; (B)
prepared within 30 calendar days after the bank statement
cutoff date, or such other number of days specified in the
transaction agreements; (C) reviewed and approved by someone
other than the person who prepared the reconciliation; and
(D) contain explanations for reconciling items. These
reconciling items are resolved within 90 calendar days of
their original identification, or such other number of days
specified in the transaction agreements.
------------------- ----------------------------------------------------------------------------- ---------- ------------
INVESTOR REMITTANCES AND REPORTING
------------------- ----------------------------------------------------------------------------- ---------- ------------
1122(d)(3)(i) Reports to investors, including those to be filed with the
Commission, are maintained in accordance with the
transaction agreements and applicable Commission
requirements. Specifically, such reports (A) are prepared in
accordance with timeframes and other terms set forth in the
transaction agreements; (B) provide information calculated
in accordance with the terms specified in the transaction
agreements; (C) are filed with the Commission as required by
its rules and regulations; and (D) agree with investors' or
the trustee's records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
------------------- ----------------------------------------------------------------------------- ---------- ------------
------------------- ----------------------------------------------------------------------------- ---------- ------------
APPLICABLE INAPPLICABLE
REG AB REFERENCE SERVICING CRITERIA SERVICING SERVICING
CRITERIA CRITERIA
------------------- ----------------------------------------------------------------------------- ---------- ------------
POOL ASSET ADMINISTRATION (CONT'D)
------------------- ----------------------------------------------------------------------------- ---------- ------------
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.
------------------- ----------------------------------------------------------------------------- ---------- ------------
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
1122(d)(3)(iii) the transaction agreements.
------------------- ----------------------------------------------------------------------------- ---------- ------------
Amounts remitted to investors per the investor reports agree with cancelled
1122(d)(3)(iv) checks, or other form of payment, or custodial bank statements.
------------------- ----------------------------------------------------------------------------- ---------- ------------
POOL ASSET ADMINISTRATION
------------------- ----------------------------------------------------------------------------- ---------- ------------
1122(d)(4)(i) Collateral or security on mortgage loans is maintained as
required by the transaction agreements or related mortgage
loan documents.
------------------- ----------------------------------------------------------------------------- ---------- ------------
Mortgage loan and related documents are safeguarded as required by the
1122(d)(4)(ii) transaction agreements
------------------- ----------------------------------------------------------------------------- ---------- ------------
Any additions, removals or substitutions to the asset pool
are made, reviewed and approved in accordance with any
conditions or requirements in
1122(d)(4)(iii) the transaction agreements.
------------------- ----------------------------------------------------------------------------- ---------- ------------
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
1122(d)(4)(iv) related mortgage loan documents.
------------------- ----------------------------------------------------------------------------- ---------- ------------
The Servicer's records regarding the mortgage loans agree with the
1122(d)(4)(v) Servicer's records with respect to an obligor's unpaid principal balance.
------------------- ----------------------------------------------------------------------------- ---------- ------------
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
1122(d)(4)(vi) related pool asset documents.
------------------- ----------------------------------------------------------------------------- ---------- ------------
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
1122(d)(4)(vii) timeframes or other requirements established by the transaction agreements.
------------------- ----------------------------------------------------------------------------- ---------- ------------
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
1122(d)(4)(viii) temporary (e.g., illness or unemployment).
------------------- ----------------------------------------------------------------------------- ---------- ------------
Adjustments to interest rates or rates of return for mortgage loans with
1122(d)(4)(ix) variable rates are computed based on the related mortgage loan documents.
------------------- ----------------------------------------------------------------------------- ---------- ------------
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
1122(d)(4)(x) other number of days specified in the transaction agreements.
------------------- ----------------------------------------------------------------------------- ---------- ------------
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
1122(d)(4)(xi) agreements.
------------------- ----------------------------------------------------------------------------- ---------- ------------
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
1122(d)(4)(xii) omission.
------------------- ----------------------------------------------------------------------------- ---------- ------------
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
1122(d)(4)(xiii) the transaction agreements.
------------------- ----------------------------------------------------------------------------- ---------- ------------
Delinquencies, charge-offs and uncollectible accounts are recognized and
1122(d)(4)(xiv) recorded in accordance with the transaction agreements.
------------------- ----------------------------------------------------------------------------- ---------- ------------
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
1122(d)(4)(xv) the transaction agreements.
------------------- ----------------------------------------------------------------------------- ---------- ------------
EXHIBIT E
FORM OF SARBANES CERTIFICATION
Re: The [ ] agreement dated as of [ ], 200[ ] (the "Agreement"),
among [IDENTIFY PARTIES]
I, ________________________________, the _______________________ of [Name of
Servicer], certify to [the Owner], [the Depositor], and the [Master Servicer]
[Securities Administrator] [Trustee], and their officers, with the knowledge and
intent that they will rely upon this certification, that:
(1) I have reviewed the servicer compliance statement of the Servicer
provided in accordance with Item 1123 of Regulation AB (the "Compliance
Statement"), the report on assessment of the Servicer's compliance with
the servicing criteria set forth in Item 1122(d) of Regulation AB (the
"Servicing Criteria"), provided in accordance with Rules 13a-18 and
15d-18 under Securities Exchange Act of 1934, as amended (the "Exchange
Act") and Item 1122 of Regulation AB (the "Servicing Assessment"), the
registered public accounting firm's attestation report provided in
accordance with Rules 13a-18 and 15d-18 under the Exchange Act and
Section 1122(b) of Regulation AB (the "Attestation Report"), and all
servicing reports, officer's certificates and other information
relating to the servicing of the Mortgage Loans by the Servicer during
200[ ] that were delivered by the Servicer to the [Depositor] [Master
Servicer] [Securities Administrator] [Trustee] pursuant to the
Agreement (collectively, the "Servicer Servicing Information");
(2) Based on my knowledge, the Servicer Servicing Information, taken as
a whole, does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements made, in
the light of the circumstances under which such statements were made,
not misleading with respect to the period of time covered by the
Servicer Servicing Information;
(3) Based on my knowledge, all of the Servicer Servicing Information
required to be provided by the Servicer under the Agreement has been
provided to the [Depositor] [Master Servicer] [Securities
Administrator] [Trustee];
(4) I am responsible for reviewing the activities performed by the
Servicer under the Agreement, and based on my knowledge and the
compliance review conducted in preparing the Compliance Statement and
except as disclosed in the Compliance Statement, the Servicing
Assessment or the Attestation Report, the Servicer has fulfilled its
obligations under the Agreement; and
(5) The Compliance Statement, the Servicing Assessment and the Attestation
Report required to be provided by the Servicer pursuant to the
Agreement have been provided to the [Depositor] [Master Servicer]. Any
material instances of noncompliance described in such reports have been
disclosed to the [Depositor] [Master Servicer]. Any material instance
of noncompliance with the Servicing Criteria has been disclosed in such
reports.
Date:
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
EXHIBIT F
FORM OF ▇▇▇▇▇▇▇▇-▇▇▇▇▇ BACK-UP CERTIFICATION
I, ______________________, Vice President of ▇▇▇▇▇ Fargo Bank, N.A. (the
"Servicer"), certify to __________________, and its officers, directors, agents
and affiliates (the "Sarbanes Certifying Party"), and with the knowledge and
intent that they will rely upon this certification, that:
(i) Based on my knowledge, the information relating to the
Mortgage Loans and the servicing thereof submitted by the
Servicer to the Sarbanes Certifying Party which is used in
connection with preparation of the reports on Form 8-K and the
annual report on Form 10-K filed with the Securities and
Exchange Commission with respect to the Securitization, 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 light of the circumstances under
which such statements were made, not misleading as of the date
of this certification;
(ii) The servicing information required to be provided to the
Sarbanes Certifying Party by the Servicer under the relevant
servicing agreement has been provided to the Sarbanes
Certifying Party;
(iii) I am responsible for reviewing the activities performed by the
Servicer under the relevant servicing agreement and based upon
the review required by the relevant servicing agreement, and
except as disclosed in the Annual Statement of Compliance, the
Annual Independent Public Accountant's Servicing Report and
all servicing reports, officer's certificates and other
information relating to the servicing of the Mortgage Loans
submitted to the Sarbanes Certifying Party, the Servicer has,
as of the date of this certification fulfilled its obligations
under the relevant servicing agreement; and
(iv) I have disclosed to the Sarbanes Certifying Party 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 relevant servicing agreement.
(v) The Servicer shall indemnify and hold harmless the Sarbanes
Certifying Party 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
Certification or the negligence, bad faith or willful
misconduct of the Servicer in connection therewith. If the
indemnification provided for herein is unavailable or
insufficient to hold harmless the Sarbanes Certifying Party,
then the Servicer agrees that it shall contribute to the
amount paid or payable by the Sarbanes Certifying Party as a
result of the losses, claims, damages or liabilities of the
Sarbanes Certifying Party in such proportion as is appropriate
to reflect the relative fault of the Sarbanes Certifying Party
on the one hand and the Servicer on the other in connection
with a breach of the Servicer's obligations under this
Certification or the Servicer's negligence, bad faith or
willful misconduct in connection therewith.
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the seal of the
Servicer.
Dated: By:
Name:
Title:
EXHIBIT G
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
____________, 20__
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT, dated
___________________, 20____ between _________________, a _________________
corporation having an office at _________________ ("Assignor") and
_________________, having an office at _________________ ("Assignee"):
For and in consideration of the sum of one dollar ($1.00) and other
valuable consideration the receipt and sufficiency of which are hereby
acknowledge, and of the mutual covenants herein contained, the parties hereto
hereby agree as follows:
1. The Assignor hereby grants, transfers and assigns to Assignee all of
the right, title and interest of Assignor, as Purchaser, in, to and under that
certain Seller's Warranties and Servicing Agreement, (the "Seller's Warranties
and Servicing Agreement"), dated as of _________________, by and between
_________________ (the "Purchaser"), and _________________ (the "Company"), and
the Mortgage Loans delivered thereunder by the Company to the Assignor, and that
certain Custodial Agreement, (the "Custodial Agreement"), dated as of
_________________, by and among the Company, the Purchaser and _________________
(the "Custodian").
2. The Assignor warrants and represents to, and covenants with, the
Assignee that:
a. The Assignor is the lawful owner of the Mortgage Loans with
the full right to transfer the Mortgage Loans free from any and all claims and
encumbrances whatsoever;
b. The Assignor has not received notice of, and has no
knowledge of, any offsets, counterclaims or other defenses available to the
Company with respect to the Seller's Warranties and Servicing Agreement or the
Mortgage Loans;
c. The Assignor has not waived or agreed to any waiver under,
or agreed to any amendment or other modification of, the Seller's Warranties and
Servicing Agreement, the Custodial Agreement or the Mortgage Loans, including
without limitation the transfer of the servicing obligations under the Seller's
Warranties and Servicing Agreement. The Assignor has no knowledge of, and has
not received notice of, any waivers under or amendments or other modifications
of, or assignments of rights or obligations under, the Seller's Warranties and
Servicing Agreement or the Mortgage Loans; and
d. Neither the Assignor nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the Mortgage Loans,
any interest in the Mortgage Loans or any other similar security to, or
solicited any offer to buy or accept a transfer, pledge or other disposition of
the Mortgage Loans, any interest in the Mortgage Loans or any other similar
security from, or otherwise approached or negotiated with respect to the
Mortgage Loans, any interest in the Mortgage Loans or any other similar security
with, any person in any manner, or made any general solicitation by means of
general advertising or in any other manner, or taken any other action which
would constitute a distribution of the Mortgage Loans under the Securities Act
or which would render the disposition of the Mortgage Loans a violation of
Section 5 of the 33 Act or require registration pursuant thereto.
3. That Assignee warrants and represent to, and covenants with, the
Assignor and the Company pursuant to Section 12.10 of the Seller's Warranties
and Servicing Agreement that:
a. The Assignee agrees to be bound, as Purchaser, by all of
the terms, covenants and conditions of the Seller's Warranties and Servicing
Agreement, the Mortgage Loans and the Custodial Agreement, 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;
b. The Assignee understands that the Mortgage Loans have not
been registered under the 33 Act or the securities laws of any state;
c. The purchase price being paid by the Assignee for the
Mortgage Loans are in excess of $250,000.00 and will be paid by cash remittance
of the full purchase price within 60 days of the sale;
d. The Assignee is acquiring the Mortgage Loans for investment
for its own account only and not for any other person. In this connection,
neither the Assignee nor any person authorized to act therefor has offered to
Mortgage Loans by means of any general advertising or general solicitation
within the meaning of Rule 502(c) of US Securities and Exchange Commission
Regulation D, promulgated under the Securities Act;
e. The Assignee considers itself a substantial sophisticated
institutional investor having such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of
investment in the Mortgage Loans;
f. The Assignee has been furnished with all information
regarding the Mortgage Loans that it has requested from the Assignor or the
Company;
g. Neither the Assignee nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the Mortgage Loans,
any interest in the Mortgage Loans or any other similar security to, or
solicited any offer to buy or accept a transfer, pledge or other disposition of
the Mortgage Loans, any interest in the Mortgage Loans or any other similar
security from, or otherwise approached or negotiated with respect to the
Mortgage Loans, any interest in the Mortgage Loans or any other similar security
with, any person in any manner which would constitute a distribution of the
Mortgage Loans under the 33 Act or which would render the disposition of the
Mortgage Loans a violation of Section 5 of the 33 Act or require registration
pursuant thereto, nor will it act, nor has it authorized or will it authorize
any person to act, in such manner with respect to the Mortgage Loans; and
h. Either (1) the Assignee is not an employee benefit plan
("Plan") within the meaning of section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA") or a plan (also "Plan") within the
meaning of section 4975(e)(1) of the Internal Revenue Code of 1986 ("Code"), and
the Assignee is not directly or indirectly purchasing the Mortgage Loans on
behalf of, investment manager of, as named fiduciary of, as Trustee of, or with
assets of, a Plan; or (2) the Assignee's purchase of the Mortgage Loans will not
result in a prohibited transaction under section 406 of ERISA or section 4975 of
the Code.
i. The Assignee's address for purposes of all notices and
correspondence related to the Mortgage Loans and the Seller's Warranties and
Servicing Agreements is:
-----------------------------------
-----------------------------------
Attention: ________________________
The Assignee's wire transfer instructions for purposes of all
remittances and payments related to the Mortgage Loans and the Seller's
Warranties and Servicing Agreement is:
-----------------------------------
-----------------------------------
Attention: ________________________
4. From and after the date hereof, the Company shall note the transfer
of the Mortgage Loans to the Assignee in its books and records, the Company
shall recognize the Assignee as the owner of the Mortgage Loans and the Company
shall service the Mortgage Loans for the benefit of the Assignee pursuant to the
Seller's Warranties and Servicing Agreement, the terms of which are incorporated
herein by reference. It is the intention of the Assignor, the Company and the
Assignee that the Seller's Warranties and Servicing Agreement shall be binding
upon and inure to the benefit of the Company and the Assignee and their
respective successors and assigns.
[Signatures Follow]
IN WITNESS WHEREOF, the parties have caused this Assignment and
Assumption to be executed by their duly authorized officers as of the date first
above written.
---------------------------------- -------------------------------------
Assignor Assignee
By: By:
------------------------------ ---------------------------------
Name: Name:
---------------------------- -------------------------------
Its: Its:
----------------------------- --------------------------------
Tax Payer Identification No.: Tax Payer Identification No.:
---------------------------------- -------------------------------------
10
EXHIBIT H
ELECTRONIC DATA FILE
(1) the street address of the Mortgaged Property including the
city, state, county and zip code;
(2) a code indicating whether the Mortgaged Property is a single
family residence, a 2-4 family dwelling, a PUD, a cooperative,
a townhouse, manufactured housing or a unit in a condominium
project;
(3) the Mortgage Interest Rate as of the Cut-off Date;
(4) the current Monthly Payment;
(5) loan term, number of months;
(6) the stated maturity date;
(7) the Stated Principal Balance of the Mortgage Loan as of the
close of business on the Cut-off Date, after deduction of
payments of principal due on or before the Cut-off Date;
(8) the Loan-to-Value Ratio;
(9) a code indicating whether the Mortgage Loan is an Interest
Only Mortgage Loan;
(10) a code indicating whether the Mortgage Loan is a temporary
buydown (Y or N);
(11) the Servicing Fee Rate;
(12) a code indicating whether the Mortgage Loan is covered by
lender-paid mortgage insurance (Y or N);
(13) a code indicating whether the Mortgage Loan is a Time$aver(R)
Mortgage Loan (Y or N);
(14) the Mortgagor's first and last name;
(15) a code indicating whether the Mortgaged Property is
owner-occupied;
(16) the remaining months to maturity from the Cut-off Date, based
on the original amortization schedule;
(17) the date on which the first Monthly Payment was due on the
Mortgage Loan;
(18) the last Due Date on which a Monthly Payment was actually
applied to the actual principal balance;
(19) the original principal amount of the Mortgage Loan;
(20) a code indicating the purpose of the loan (i.e., purchase,
financing, rate/term refinancing, cash-out refinancing);
(21) the Mortgage Interest Rate at origination;
(22) the date on which the first Monthly Payment was due on the
Mortgage Loan;
(23) a code indicating the documentation style (i.e., full
(providing two years employment verification - 2 years W-2's
and current pay stub or 2 years 1040's for self employed
borrowers), alternative or reduced);
(24) a code indicating if the Mortgage Loan is subject to a PMI
Policy;
(25) the Appraised Value of the Mortgage Property;
(26) the sale price of the Mortgaged Property, if applicable;
(27) the Mortgagor's Underwriting FICO Score;
(28) term of prepayment penalty in years;
(29) a code indicating the product type;
(30) a code indicating the credit grade of the Mortgage Loan;
(31) the unpaid balance of the Mortgage Loan as of the close of
business on the Cut-off Date, after deduction of all payments
of principal;
(32) the Note date of the Mortgage Loan;
(33) the mortgage insurance certificate number and percentage of
coverage, if applicable;
(34) the Mortgagor's date of birth;
(35) the MIN Number for each Mortgage Loan, if applicable;
(36) employer name;
(37) subsidy program code;
(38) servicer name;
(39) the combined Loan-to-Value Ratio;
(40) the total Loan-to-Value Ratio;
(41) whether the Mortgage Loan is convertible (Y or N);
(42) a code indicating whether the Mortgage Loan is a relocation
loan (Y or N);
(43) a code indicating whether the Mortgage Loan is a leasehold
loan (Y or N);
(44) a code indicating whether the Mortgage Loan is an Alt A loan
(Y or N);
(45) a code indicating whether the Mortgage Loan is a no ratio loan
(Y or N);
(46) a code indicating whether the Mortgage Loan is a Pledged Asset
Mortgage Loan (Y or N);
(47) effective LTV percentage for Pledged Asset Mortgage Loans;
(48) citizenship type code;
(49) a code indicating whether the Mortgage Loan is a conforming or
non-conforming loan, based on the original loan balance;
(50) the name of the client for which the Mortgage Loan was
originated;
(51) the program code;
(52) the loan sub doc code;
(53) the remaining interest-only term for Interest Only Mortgage
Loans;
The Company shall provide the
following FOR THE HOME MORTGAGE
DISCLOSURE ACT (HMDA):
(54) the Mortgagor's and co-Mortgagor's (if applicable) ethnicity;
(55) the Mortgagor's and co-Mortgagor's (if applicable) race;
(56) lien status;
(57) for cash-out refinance loans, the cash purpose;
(58) the Mortgagor's and co-Mortgagor's (if applicable) gender;
(59) the Mortgagor's and co-Mortgagor's (if applicable) social
security numbers;
(60) the number of units for the property;
(61) the year in which the property was built;
(62) the qualifying monthly income of the Mortgagor;
(63) the number of bedrooms contained in the property;
(64) a code indicating first time buyer (Y or N);
(65) the total rental income, if any;
The Seller shall provide the
following FOR THE ADJUSTABLE RATE MORTGAGE
LOANS (IF APPLICABLE):
(66) the maximum Mortgage Interest Rate under the terms of the
Mortgage Note;
(67) the Periodic Interest Rate Cap;
(68) the Index;
(69) the next Adjustment Date;
(70) the Gross Margin; and
(71) the lifetime interest rate cap.
MASTER MORTGAGE LOAN PURCHASE AGREEMENT
This is an Amended and Restated Master Mortgage Loan Purchase Agreement
(the "Agreement"), dated as of November 1, 2004 by and between EMC Mortgage
Corporation, having an office at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇ (the "Purchaser") and ▇▇▇▇▇ Fargo Bank, N.A., having an ▇▇▇▇▇▇ ▇▇ ▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (the "Seller").
W I T N E S S E T H
WHEREAS, the Seller agrees to sell, and the Purchaser agrees to
purchase, from time to time certain conventional residential mortgage loans (the
"Mortgage Loans") on a servicing retained basis as described herein:
WHEREAS, the Mortgage Loans shall be delivered as pools of whole loans
(each a "Loan Package") on various dates as provided herein (each a "Closing
Date"); and
WHEREAS, the parties intend hereby to set forth the terms and
conditions upon which the proposed Transactions will be effected.
NOW THEREFORE, in consideration of the promises and the mutual
agreements set forth herein, the parties hereto agree as follows:
SECTION 1. All capitalized terms not otherwise defined herein have the
respective meanings set forth in the Amended and Restated Master Seller's
Warranties and Servicing Agreement, dated as of the date herewith (the"Master
Seller's Warranties and Servicing Agreement").
SECTION 2. AGREEMENT TO PURCHASE. The Seller agrees to sell, and the
Purchaser agrees to purchase from time to time, Mortgage Loans having an
aggregate principal balance on the applicable related Cut-off Date in an amount
as set forth in the related Commitment Letters or in such other amount as agreed
by the Purchaser and the Seller as evidenced by the actual aggregate principal
balance of the Mortgage Loans in the related Loan Package accepted by the
Purchaser on the related Closing Date. The Mortgage Loans will be delivered
pursuant to the Master Seller's Warranties and Servicing Agreement.
SECTION 3. MORTGAGE SCHEDULES. The Seller will provide the Purchaser
with certain information constituting a listing of the Mortgage Loans to be
purchased under this Agreement for each Transaction (the "Mortgage Loan
Schedule"). Each Mortgage Loan Schedule shall conform to the definition of
"Mortgage Loan Schedule" under the Master Seller's Warranties and Servicing
Agreement.
SECTION 4. PURCHASE PRICE. The purchase price for each Loan Package
(the "Purchase Price") shall be the percentage of par as stated in the related
Commitment Letter, multiplied by the aggregate principal balance, as of the
related Cut-off Date, of the Mortgage Loans listed in the related Loan Package,
after application of scheduled payments of principal for such related Loan
Package due on or before the related Cut-off Date whether or not collected. The
purchase price for a Loan Package may be adjusted as stated in the related
Commitment Letter.
In addition to the Purchase Price, the Purchaser shall pay to the
Seller, at closing, accrued interest on the initial principal amount of the
Mortgage Loans at the weighted average Mortgage Loan Remittance Rate for each
Loan Package from the related Cut-off Date through the day prior to the related
Closing Date, inclusive.
With respect to each Loan Package, the Purchaser shall be entitled to
(1) all scheduled principal due after the related Cut-off Date, (2) all other
recoveries of principal collected after the related Cut-off Date (provided,
however, that all scheduled payments of principal due on or before the related
Cut-off Date and collected by the Seller after the related Cut-off Date shall
belong to the Seller), and (3) all payments of interest on the Mortgage Loans at
the Mortgage Loan Remittance Rate (minus that portion of any such payment which
is allocable to the period prior to the related Cut-off Date). The 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. Therefore, 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 (minus interest at the Servicing Fee Rate) shall be the property of the
Purchaser. The Seller shall deposit any such prepaid amounts into the Custodial
Account, which account is established for the benefit of the Purchaser for
subsequent remittance by the Seller to the Purchaser.
SECTION 5. EXAMINATION OF MORTGAGE FILES. Prior to each Closing Date,
the Seller shall (a) deliver to the Purchaser in escrow, for examination, the
Mortgage File for each Mortgage Loan, including a copy of the Assignment of
Mortgage, pertaining to each Mortgage Loan, or (b) make the Mortgage Files
available to the Purchaser for examination at the Seller's offices or such other
location as shall otherwise be agreed upon by the Purchaser and the Seller. Such
examination may be made by the Purchaser or by any prospective purchaser of the
Mortgage Loans from the Purchaser, at any time before or after such related
Closing Date, upon prior reasonable notice to the Seller. The fact that the
Purchaser or any prospective purchaser of the Mortgage Loans has conducted or
has failed to conduct any partial or complete examination of the Mortgage Files
shall not affect the Purchaser's (or any of its successor's) rights to demand
repurchase, substitution or other relief as provided under the Master Seller's
Warranties and Servicing Agreement.
Prior to Seller's receipt of the Purchase Price, the Purchaser shall
cause the Custodian to act as bailee for the sole and exclusive benefit of the
Seller pursuant to the Custodial Agreement and act only in accordance with
Seller's instructions. Upon the Seller's receipt of the Purchase Price, the
Seller shall provide notification to the Custodian to release ownership of the
Mortgage Loan Documents contained in the Custodial Mortgage File. Such
notification shall be in a form of a written notice by facsimile or other
electronic media, with a copy sent to the Purchaser. Subsequent to such release,
such Mortgage Loan Documents shall be retained by the Custodian for the benefit
of the Purchaser. All Mortgage Loan Documents related to Mortgage Loans not
purchased by the Purchaser on the Closing Date, shall be maintained by the
Custodian for the benefit of the Seller and shall be returned to the Seller
within two (2) Business Days after the Closing Date.
SECTION 6. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF SELLER. The
Seller agrees and acknowledges that it shall, as a condition to the consummation
of the transactions contemplated hereby, make the representations and warranties
specified in Section 3.01 and 3.02 of the Master Seller's Warranties and
Servicing Agreement, as of each related Closing Date. The meaning of the term
"Agreement" as used in Sections 3.01 and 3.02 of the Master Seller's Warranties
and Servicing Agreement shall include this Agreement. The Seller, without
conceding that the Mortgage Loans are securities, hereby makes the following
additional representations, warranties and agreements which shall be deemed to
have been made as of the related Closing Date:
a) neither the Seller nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of any Mortgage Loans,
any interest in any Mortgage Loans or any other similar security to, or
solicited any offer to buy or accept a transfer, pledge or other
disposition of any Mortgage Loans, any interest in any Mortgage Loans
or any other similar security from, or otherwise approached or
negotiated with respect to any Mortgage Loans, any interest in any
Mortgage Loans or any other similar security with, any person in any
manner, or made any general solicitation by means of general
advertising or in any other manner, or taken any other action which
would constitute a distribution of the Mortgage Loans under the
Securities Act or which would render the disposition of any Mortgage
Loans a violation of Section 5 of the Securities Act or require
registration pursuant thereto, nor will it act, nor has it authorized
or will it authorize any person to act, in such manner with respect to
the Mortgage Loans; and
b) the Seller has not dealt with any broker or agent or anyone else who
might be entitled to a fee or commission in connection with this
transaction other than the Purchaser.
SECTION 7. REPRESENTATION, WARRANTIES AND AGREEMENT OF PURCHASER. The
Purchaser, without conceding that the Mortgage Loans are securities, hereby
makes the following representations, warranties and agreements, which shall have
been deemed to have been made as of the related Closing Date.
a) the Purchaser understands that the Mortgage Loans have not been
registered under the Securities Act or the securities laws of any
state;
b) the Purchaser is acquiring the Mortgage Loans for its own account
only and not for any other person;
c) the Purchaser considers itself a substantial, sophisticated
institutional investor having such knowledge and experience in
financial and business matters that it is capable of evaluating the
merits and risks of investment in the Mortgage Loans;
d) the Purchaser has been furnished with all information regarding the
Mortgage Loans which it has requested from the Seller or the Company;
and
e) neither the Purchaser nor anyone acting on its behalf offered,
transferred, pledged, sold or otherwise disposed of any Mortgage Loan,
any interest in any Mortgage Loan or any other similar security to, or
solicited any offer to buy or accept a transfer, pledge or other
disposition of any Mortgage Loan, any interest in any Mortgage Loan or
any other similar security from, or otherwise approached or negotiated
with respect to any Mortgage Loan, any interest in any Mortgage Loan or
any other similar security with, any person in any manner, or made any
general solicitation by means of general advertising or in any other
manner, or taken any other action which would constitute a distribution
of the Mortgage Loans under the Securities Act or which would render
the disposition of any Mortgage Loan a violation of Section 5 of the
Securities Act or require registration pursuant thereto, nor will it
act, nor has it authorized or will it authorize any person to act, in
such manner with respect to the Mortgage Loans.
SECTION 8. CLOSING. The closing for the purchase and sale of each Loan
Package shall take place on the related Closing Date. At the Purchaser's option,
the Closing shall be either: by telephone, confirmed by letter or wire as the
parties shall agree; or conducted in person, at such place as the parties shall
agree.
The closing shall be subject to each of the following conditions:
a) all of the representations and warranties of the Seller under this
Agreement and under the Master Seller's Warranties and Servicing
Agreement shall be true and correct as of such related Closing Date and
no event shall have occurred which, with notice or the passage of time,
would constitute a default under this Agreement or an Event of Default
under the Master Seller's Warranties and Servicing Agreement;
b) the Purchaser shall have received, or the Purchaser's attorneys
shall have received in escrow, all Closing Documents as specified in
Section 9 of this Agreement, in such forms as are agreed upon and
acceptable to the Purchaser, duly executed by all signatories other
than the Purchaser as required pursuant to the respective terms
thereof;
c) the Seller shall have delivered and released to the Custodian under
the Master Seller's Warranties and Servicing Agreement all documents
required pursuant to the related Custodial Agreement, and
d) all other terms and conditions of this Agreement shall have been
complied with.
Subject to the foregoing conditions, the Purchaser shall pay to the
Seller on such related Closing Date the applicable Purchase Price, plus accrued
interest pursuant to Section 4 of this Agreement, by wire transfer of
immediately available funds to the account designated by the Seller.
SECTION 9. CLOSING DOCUMENTS. With respect to the Mortgage Loans, the
Closing Documents shall consist of the following documents:
On the initial Closing Date:
1. the Master Seller's Warranties and Servicing Agreement, in
three counterparts;
2. this Agreement in two counterparts;
3. the Custodial Agreement, dated as November 30, 1999, by and
between EMC Mortgage Corporation as Owner, and ▇▇▇▇▇ Fargo
Bank, N.A. (formerly ▇▇▇▇▇ Fargo Bank Minnesota, N.A.)
attached as an exhibit to the Master Seller's Warranties and
Servicing Agreement;
4. the Mortgage Loan Schedule for the related Loan Package, one
copy to be attached to each counterpart of the Master Seller's
Warranties and Servicing Agreement, to each counterpart of
this Agreement, and to each counterpart of the Custodial
Agreement, as the Mortgage Loan Schedule thereto;
5. a Receipt and Certification, as required under the Custodial
Agreement;
6. an Opinion of Counsel of the Seller, in the form of Exhibit 1
hereto; and
7. an Assignment and Conveyance Agreement for the related
Mortgage Loans.
On each subsequent Closing Date, the following documents:
1. the Mortgage Loan Schedule for the related Loan Package;
2. an Assignment and Conveyance Agreement for the related
Mortgage Loans; and
3. a Receipt and Certification, as required under the Custodial
Agreement.
SECTION 10. COSTS. The Purchaser shall pay any commissions due its
salesmen, the legal fees and expenses of its attorneys and the costs and
expenses associated with the Custodian. The Seller shall be responsible for
reasonable costs and expenses associated with any preparation of the initial
assignments of mortgage. All other costs and expenses incurred in connection
with the transfer and delivery of the Mortgage Loans, including fees for title
policy endorsements and continuations and the Seller's attorney fees, shall be
paid by the Seller.
SECTION 11. SERVICING The Mortgage Loans shall be serviced by the
Seller in accordance with the terms of the Master Seller's Warranties and
Servicing Agreement. The Seller shall be entitled to servicing fees calculated
as provided therein, at the Servicing Fee Rate.
SECTION 12. FINANCIAL STATEMENTS. The Seller understands that in
connection with the Purchaser's marketing of the Mortgage Loans, the Purchaser
shall make available to prospective purchasers a Consolidated Statement of
Operations of the Seller for the most recently completed two fiscal years
respecting which such a statement is available, as well as a Consolidated
Statement of Condition at the end of the last two (2) fiscal years covered by
such Consolidated Statement of Operations. The Purchaser shall also make
available any comparable interim statements to the extent any such statements
have been prepared by the seller in a format intended or otherwise suitable for
the public at large. The Seller, if it has not already done so, agrees to
furnish promptly to the Purchaser copies of the statements specified above. The
Seller shall also make available information on its servicing performance with
respect to loans in its own portfolio and loans serviced for others (if any),
including foreclosure and delinquency ratios.
The Seller also agrees to allow access to a knowledgeable (as shall be
determined by the Seller) financial or accounting officer for the purpose of
answering questions asked by any prospective purchaser regarding recent
developments affecting the Seller or the financial statements of the Seller.
SECTION 13. MANDATORY DELIVERY. The sale and delivery on each Closing
Date of the related Mortgage Loans described on the respective Mortgage Loan
Schedules is mandatory, it being specifically understood and agreed that each
Mortgage Loan must be unique and identifiable on such related Closing Date and
that an award of money damages would be insufficient to compensate the Purchaser
for the losses and damages incurred by the Purchaser (including damages to
prospective purchasers of the Mortgage Loans) in the event of the Seller's
failure to deliver the Mortgage Loans on or before such related Closing Date.
All rights and remedies of the Purchaser under this Agreement are distinct from,
and cumulative with, any other rights or remedies under this Agreement or
afforded by law or equity and all such rights and remedies may be exercised
concurrently, independently or successively.
SECTION 14. NOTICES. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed, by
registered or certified mail, return receipt requested, or, if by other means,
when received by the other party at the address shown on the first page hereof,
or such other address as may hereafter be furnished to the other party by like
notice. Any such demand, notice of communication hereunder shall be deemed to
have been received on the date delivered to or received at the premises of the
addressee (as evidenced, in the case of registered or certified mail, by the
date noted on the return receipt).
SECTION 15. SEVERABILITY CLAUSE. Any part, provision, representation or
warranty of this Agreement which is prohibited or which is held to be void or
unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. Any part,
provision, representation or warranty of this Agreement which is prohibited or
unenforceable or is held to be void or unenforceable in any jurisdiction shall
be ineffective, as to such jurisdiction, to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction as to any Mortgage Loan
shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties hereto
waive any provision of law which prohibits or renders void or unenforceable any
provision hereof. If the invalidity of any part, provision, representation or
warranty of this Agreement shall deprive any party of the economic benefit
intended to be conferred by this Agreement, the parties shall negotiate, in
good-faith, to develop a structure the economic effect of which is as close as
possible to the economic effect of this Agreement without regard to such
invalidity.
SECTION 16. COUNTERPARTS. This Agreement may be executed simultaneously
in any number of counterparts. Each counterpart shall be deemed to be an
original, and all such counterparts shall constitute one and the same
instrument.
SECTION 17. PLACE OF DELIVERY AND GOVERNING LAW. This Agreement shall
be deemed in effect when a fully executed counterpart thereof is received by the
Purchaser in the State of New York and shall be deemed to have been made in
State of New York. The Agreement shall be construed in accordance with the laws
of the State of New York and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with the laws of the State of New
York, except to the extent preempted by Federal Law.
Each of the Seller and the Purchaser hereby knowingly, voluntarily and
intentionally waives any and all rights it may have to a trial by jury in
respect of any litigation based on, or arising out of, under, or in connection
with, this Agreement, or any other documents and instruments executed in
connection herewith, or any course of conduct, course of dealing, statements
(whether oral or written), or actions of the Seller or the Purchaser. This
provision is a material inducement for the Purchaser to enter into this
Agreement.
SECTION 18. FURTHER AGREEMENTS. The Purchaser and the Seller each agree
to execute and deliver to the other such additional documents, instruments or
agreements as may be necessary or appropriate to effectuate the purposes of this
Agreement.
Without limiting the generality of the foregoing, the Seller shall
reasonably cooperate with the Purchaser in connection with the initial resales
of the Mortgage Loans by the Purchaser. In that connection, the Seller shall
provide to the Purchaser: (i) any and all information and appropriate
verification of information, whether through letters of its auditors and counsel
or otherwise, as the Purchaser shall reasonably request, and (ii) such
additional representations, warranties, covenants, opinions of counsel, letters
from auditors and certificates of public officials or officers of the Seller as
are reasonably believed necessary by the Purchaser in connection with such
resales. The requirement of the Seller pursuant to (ii) above shall terminate on
the related Closing Date, except as provided pursuant to Article IX of the
Master Seller's Warranties and Servicing Agreement. Prior to incurring any
out-of-pocket expenses pursuant to this paragraph, the Seller shall notify the
Purchaser in writing of the estimated amount of such expense. The Purchaser
shall reimburse the Seller for any such expense following its receipt of
appropriate details thereof.
SECTION 19. INTENTION OF THE PARTIES. It is the intention of the
parties that the Purchaser is purchasing, and the Seller is selling, an
undivided 100% ownership interest in the Mortgage Loans and not a debt
instrument of the Seller or another security. Accordingly, the parties hereto
each intend to treat the transaction for Federal income tax purposes as a sale
by the Seller, and a purchase by the Purchaser, of the Mortgage Loans. The
Purchaser shall have the right to review the Mortgage Loans and the related
Mortgage Loan Files to determine the characteristics of the Mortgage Loans which
shall affect the Federal income tax consequences of owning the Mortgage Loans
and the Seller shall cooperate with all reasonable requests made by the
Purchaser in the course of such review.
SECTION 20. SUCCESSORS AND ASSIGNS; ASSIGNMENT OF PURCHASE AGREEMENT.
This Agreement shall bind and inure to the benefit of and be enforceable by the
Seller and the Purchaser and the respective successors and assigns of the Seller
and the Purchaser. This Agreement shall not be assigned, pledged or hypothecated
by the Seller to a third party without the consent of the Purchaser.
SECTION 21. WAIVERS; OTHER AGREEMENTS. No term or provision of this
Agreement may be waived or modified unless such waiver or modification is in
writing and signed by the party against whom such waiver or modification is
sought to be enforced.
SECTION 22. EXHIBITS. The exhibits to this Agreement are hereby
incorporated and made a part hereof and are an integral part of this Agreement.
SECTION 23. GENERAL INTERPRETIVE PRINCIPLES. For purposes of this
Agreement, except as otherwise expressly provided or unless the context
otherwise requires:
a) the terms defined in this Agreement have the meanings assigned to
them in this Agreement and include the plural as well as the singular,
and the use of any gender herein shall be deemed to include the other
gender;
b) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles;
c) references herein to "Articles", "Sections", "Subsections",
"Paragraphs", and other subdivisions without reference to a document
are to designated Articles, Sections, Subsections, Paragraphs and other
subdivisions of this Agreement;
d) a reference to a Subsection without further reference to a Section
is a reference to such Subsection as contained in the same Section in
which the reference appears, and this rule shall also apply to
Paragraphs and other subdivisions;
e) the words "herein", "hereof", "hereunder" and other words of similar
import refer to this Agreement as a whole and not to any particular
provision; and
f) the term "include" or "including" shall mean without limitation by
reason of enumeration.
SECTION 24. REPRODUCTION OF DOCUMENTS. This Agreement and all documents
relating thereto, including, without limitation, (a) consents, waivers and
modifications which may hereafter be executed, (b) documents received by any
party at the closing, and (c) financial statements, certificates and other
information previously or hereafter furnished, may be reproduced by any
photographic, photostatic, microfilm, micro-card, miniature photographic or
other similar process. The parties agree that any such reproduction shall be
admissible in evidence as the original itself in any judicial or administrative
proceeding, whether or not the original is in existence and whether or not such
reproduction was made by a party in the regular course of business, and that any
enlargement, facsimile or further reproduction of such reproduction shall
likewise be admissible in evidence.
[Signatures Follow]
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective officers thereunto duly authorized
as of the date first above written.
EMC MORTGAGE CORPORATION
(Purchaser)
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
▇▇▇▇▇ FARGO BANK, N.A.
(Seller)
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
EXHIBIT 1
FORM OF OPINION OF COUNSEL
Address
Re: Mortgage Loan Sale by ▇▇▇▇▇ Fargo Bank, N.A. (the "Company") to EMC Mortgage
Corporation (the "Purchaser") of first lien mortgage loans (the "Mortgage
Loans") pursuant to that certain Amended and Restated Master Seller's Warranties
and Servicing Agreement and Amended and Restated Master Mortgage Loan Purchase
Agreement by and between the Company and the Purchaser, dated as of November 1,
2005.
Dear Sir/Madam:
I am @ of ▇▇▇▇▇ Fargo Bank, N.A. and have acted as counsel to ▇▇▇▇▇ Fargo Bank,
N.A. (the "Company"), with respect to certain matters in connection with the
sale by the Company of Mortgage Loans pursuant to that certain Amended and
Restated Master Seller's Warranties and Servicing Agreement and Amended and
Restated Master Mortgage Loan Purchase Agreement by and between the Company and
EMC Mortgage Corporation (the "Purchaser"), dated as of November 1, 2005, (the
"Agreements"), which sale is in the form of whole Mortgage Loans. Capitalized
terms not otherwise defined herein have the meanings set forth in the Amended
and Restated Master Seller's Warranties and Servicing Agreement.
I have examined the following documents:
1. the Amended and Restated Master Seller's Warranties and Servicing
Agreement;
2. the Amended and Restated Master Mortgage Loan Purchase Agreement;
3. the Custodial Agreement;
4. the form of endorsement of the Mortgage Notes; and
5. such other documents, records and papers as I have deemed necessary and
relevant as a basis for this opinion.
To the extent I have deemed necessary and proper, I have relied upon the
representations and warranties of the Company contained in the Agreements. I
have assumed the authenticity of all documents submitted to me as originals, the
genuineness of all signatures, the legal capacity of natural persons and the
conformity to the originals of all documents.
Based upon the foregoing, it is my opinion that;
1. The Company is a national banking association duly organized, validly
existing and in good standing under the laws of the United States.
2. The Company has the power to engage in the transactions contemplated by
the Agreements, the Custodial Agreement and all requisite power,
authority and legal right to execute and deliver the Agreements, the
Custodial Agreement and the Mortgage Loans, and to perform and observe
the terms and conditions of such instruments.
3. Each person who, as an officer or attorney-in-fact of the Company,
signed (a) the Agreements, each dated as of November 1, 2005, by and
between the Company and the Purchaser, and (b) any other document
delivered prior hereto or on the date hereof in connection with the
sale and servicing of the Mortgage Loans in accordance with the
Agreements was, at the respective times of such signing and delivery,
and is, as of the date hereof, duly elected or appointed, qualified and
acting as such officer or attorney-in-fact, and the signatures of such
persons appearing on such documents are their genuine signatures.
4. Each of the Agreements, the Custodial Agreement, and the Mortgage
Loans, has been duly authorized, executed and delivered by the Company
and is a legal, valid and binding agreement enforceable in accordance
with its terms, subject to the effect of insolvency, liquidation,
convervatorship and other similar laws administered by the Federal
Deposit Insurance Corporation affecting the enforcement of contract
obligations of insured banks and subject to the application of the
rules of equity, including those respecting the availability of
specific performance, none of which will materially interfere with the
realization of the benefits provided thereunder or with the Purchaser's
ownership of the Mortgage Loans.
5. The Company has been duly authorized to allow any of its officers to
execute any and all documents by original signature in order to
complete the transactions contemplated by the Agreements and the
Custodial Agreement, and by original or facsimile signature in order to
execute the endorsements to the Mortgage Notes and the assignments of
the Mortgages, and the original or facsimile signature of the officer
at the Company executing the endorsements to the Mortgage Notes and the
assignments of the Mortgages represents the legal and valid signature
of said officer of the Company.
6. Either (i) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Company of or compliance by the Company with the
Agreements, the Custodial Agreement or the sale and delivery of the
Mortgage Loans or the consummation of the transactions contemplated by
the Agreements, and the Custodial Agreement; or (ii) any required
consent, approval, authorization or order has been obtained by the
Company.
7. Neither the consummation of the transactions contemplated by, nor the
fulfillment of the terms of the Agreements and the Custodial Agreement,
will conflict with or results in or will result in a breach of or
constitutes or will constitute a default under the charter or by-laws
of the Company, the terms of any indenture or other agreement or
instrument to which the Company is a party or by which it is bound or
to which it is subject, or violates any statute or order, rule,
regulations, writ, injunction or decree of any court, governmental
authority or regulatory body to which the Company is subject or by
which it is bound.
8. There is no action, suit, proceeding or investigation pending or, to
the best of my knowledge, threatened against the Company which, in my
opinion, either in any one instance or in the aggregate, may result in
any material adverse change in the business, operations, financial
condition, properties or assets of the Company or in any material
impairment of the right or ability of the Company to carry on its
business substantially as now conducted or in any material liability on
the part of the Company or which would draw into question the validity
of the Agreements, and the Custodial Agreement, or of any action taken
or to be taken in connection with the transactions contemplated
thereby, or which would be likely to impair materially the ability of
the Company to perform under the terms of the Agreements and the
Custodial Agreement.
9. For purposes of the foregoing, I have not regarded any legal or
governmental actions, investigations or proceedings to be "threatened"
unless the potential litigant or governmental authority has manifested
to the legal department of the Company or an employee of the Company
responsible for the receipt of process a present intention to initiate
such proceedings; nor have I regarded any legal or governmental
actions, investigations or proceedings as including those that are
conducted by state or federal authorities in connection with their
routine regulatory activities. The sale of each Mortgage Note and
Mortgage as and in the manner contemplated by the Agreements is
sufficient fully to transfer all right, title and interest of the
Company thereto as noteholder and mortgagee, apart from the rights to
service the Mortgage Loans pursuant to the Agreements.
10. The form of endorsement that is to be used with respect to the Mortgage
Loans is legally valid and sufficient to duly endorse the Mortgage
Notes to the Purchaser. Upon the completion of the endorsement of the
Mortgage Notes and the completion of the assignments of the Mortgages,
and the recording thereof, the endorsement of the Mortgage Notes, the
delivery to the Custodian of the completed assignments of the
Mortgages, and the delivery of the original endorsed Mortgage Notes to
the Custodian would be sufficient to permit the entity to which such
Mortgage Note is initially endorsed at the Purchaser's direction, and
to whom such assignment of Mortgages is initially assigned at the
Purchaser's direction, to avail itself of all protection available
under applicable law against the claims of any present or future
creditors of the Company, and would be sufficient to prevent any other
sale, transfer, assignment, pledge or hypothecation of the Mortgages
and the Mortgage Notes by the Company from being enforceable.
This opinion is given to you for your sole benefit, and no other person or
entity is entitled to rely hereon except that the purchaser or purchasers to
which you initially and directly resell the Mortgage Loans may rely on this
opinion as if it were addressed to them as of its date.
Sincerely,
EXHIBIT I
ASSIGNMENT AGREEMENTS
CITIMORTGAGE, INC.
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
This is an Assignment, Assumption and Recognition Agreement (the
"Agreement") made this 29th day of December, 2005, among EMC Mortgage
Corporation (the "Assignor"), U.S. Bank National Association, not individually
but solely as trustee for the holders of Prime Mortgage Trust, Mortgage
Pass-Through Certificates, Series 2005-5 (the "Assignee") and CitiMortgage,
Inc., formerly known as Citicorp Mortgage, Inc. ("Citicorp").
Whereas, Citicorp sold the mortgage loans identified on Attachment 1
hereto (the "Mortgage Loans"), on a servicing retained basis, to the Assignor
pursuant to a mortgage loan sale and servicing agreement, between Citicorp and
the Assignor (the "Former Servicing Agreement"); and
Whereas the Mortgage Loans and the Former Servicing Agreement were
subsequently transferred to the underlying trusts formed (the "Underlying
Trusts") in connection with three securitizations; and
Whereas, pursuant to the Pooling and Servicing Agreement for the
related Underlying Trust, the Assignor had the right to purchase the Mortgage
Loans (the "Call Right") from the Underlying Trust following the occurrence of
certain triggering events (the "Trigger Events") set forth in the underlying
Pooling and Servicing Agreement; and
Whereas, following the occurrence of the Trigger Events, the Assignor
exercised the related Call Right and purchased the Mortgage Loans from the
Underlying Trusts; and
Whereas, the Assignor and Citicorp desire that, from and after the date
hereof, all of the Mortgage Loans be serviced in accordance with the terms and
conditions of that certain Mortgage Loan Purchase and Servicing Agreement, dated
as of August 1, 2003, as modified herein (as modified, the "Purchase and
Servicing Agreement") between the Assignor and Citicorp, and that, with respect
to the Mortgage Loans, the terms and conditions of the Purchase and Servicing
Agreement supercede and replace in their entirety the servicing-related terms
and conditions of the Former Servicing Agreement;
In consideration of the mutual promises contained herein the parties
hereto agree that the Mortgage Loans listed on Attachment 1 annexed hereto (the
"Mortgage Loan Schedule") now serviced by Citicorp for Assignor and its
successors and assigns pursuant to that certain Purchase and Servicing Agreement
shall be subject to the terms of this Agreement. Capitalized terms used herein
but not defined shall have the meanings ascribed to them in the Purchase and
Servicing Agreement.
RECOGNITION OF EMC
Citicorp recognizes the Assignor as owner of the Mortgage Loans and
acknowledges that it is currently servicing the Mortgage Loans for the benefit
of the Assignor pursuant to the terms of the Former Servicing Agreement. From
and after the date hereof, Citicorp agrees that it will service the Mortgage
Loans pursuant to the terms of the Purchase and Servicing Agreement (as modified
herein) which terms are incorporated herein by reference. Assignor and Citicorp
acknowledge and agree that, from and after the date hereof, the terms and
conditions of the Former Servicing Agreement shall no longer apply to the
Mortgage Loans.
ASSIGNMENT AND ASSUMPTION
1. Assignor hereby grants, transfers and assigns to Assignee all of the
right, title and interest of Assignor in the Mortgage Loans and, to the extent
of the Mortgage Loans, all of its right, title and interest in, to and under the
Purchase and Servicing Agreement. Notwithstanding anything to the contrary
contained herein, Assignor specifically reserves and does not assign to Assignee
and Assignor is retaining the right to enforce its right to terminate Citicorp
as servicer of any Mortgage Loan which becomes ninety (90) days or greater
delinquent in payment of a scheduled Monthly Payment as provided in the second
paragraph of Section 10.07 of the Purchase and Servicing Agreement. Except as is
otherwise expressly provided herein, the Assignor makes no representations,
warranties or covenants to the Assignee and the Assignee acknowledges that the
Assignor has no obligations to the Assignee under the terms of the Purchase and
Servicing Agreement or otherwise relating to the transaction contemplated herein
(including, but not limited to, any obligation to indemnify the Assignee).
WARRANTIES
2. Assignor warrants and represents to, and covenants with, the
Assignee as of the date hereof that:
(a) Attached hereto as Attachment 2 is a true and accurate copy of the
Purchase and Servicing 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) Assignor is the lawful owner of the Mortgage Loans with full right
to transfer the Mortgage Loans and any and all of its interests, rights and
obligations under the Purchase and Servicing Agreement to the extent of the
Mortgage Loans free and clear from any and all claims and encumbrances
whatsoever and upon the transfer of the Mortgage Loans to Assignee as
contemplated herein, Assignee shall have good title to each and every Mortgage
Loan, as well as any and all of Assignee's interests, rights and obligations
under the Purchase and Servicing Agreement to the extent of the Mortgage Loans,
free and clear of all liens, claims and encumbrances;
(c) There are no offsets, counterclaims or other defenses available to
Citicorp with respect to the Mortgage Loans or the Purchase and Servicing
Agreement;
(d) Assignor has no knowledge of, and has not received notice of, any
waivers under, or any modification of, the Mortgage Loans;
(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 Mortgage Loans;
(f) Assignor has full corporate power and authority to execute, deliver
and perform its obligations under this Agreement, and to consummate the
transactions set forth herein. The consummation of the transactions contemplated
by this 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 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 Agreement has been duly
executed and delivered by Assignor and, upon the due authorization, execution
and delivery by Assignee, 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 Agreement, or the consummation by it of the transactions
contemplated hereby;
(h) Neither Assignor nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of the Mortgage Loans or any
interest in the Mortgage Loans, or solicited any offer to buy or accept a
transfer, pledge or other disposition of the Mortgage Loans, or any interest in
the Mortgage Loans or otherwise approached or negotiated with respect to the
Mortgage Loans, or any interest in the Mortgage 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 Mortgage Loans under the Securities Act of 1933, as amended
(the "1933 Act") or which would render the disposition of the Mortgage Loans a
violation of Section 5 of the 1933 Act or require registration pursuant thereto;
(i) The Assignor has received from the Company, and has delivered to
the Assignee, all documents required to be delivered to the Assignor by the
Company prior to the date hereof with respect to the Mortgage Loans and has not
received, and has not requested from the Company, any additional documents; and
(j) 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 Assignor, would
adversely affect Assignor's execution or delivery of, or the enforceability of,
this Agreement, or the Assignor's ability to perform its obligations under this
Agreement.
3. Assignee warrants and represents to, and covenants with, Assignor
and Citicorp that as of the date hereof:
(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 corporate power and authority to hold the Mortgage Loans as trustee on
behalf of the holders of the Prime Mortgage Trust, Mortgage Pass-Through
Certificates, 2005-5;
(b) Assignee has full corporate power and authority to execute, deliver
and perform its obligations under this Agreement, and to consummate the
transactions set forth herein. The consummation of the transactions contemplated
by this 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 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 Agreement has been duly
executed and delivered by Assignee and, upon the due authorization, execution
and delivery by Assignor, 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 Agreement, or the consummation by it of the transactions
contemplated hereby;
There is no action, suit, proceeding, investigation or litigation
pending or, to Assignee's knowledge, threatened, which either in any instance or
in the aggregate, if determined adversely to Assignee, would adversely affect
Assignee's execution or delivery of, or the enforceability of, this Agreement,
or the Assignee's ability to perform its obligations under this Agreement; and
(e) Assignee assumes for the benefit of each of the Assignor and
Citicorp all of the rights of the Purchaser under the Purchase and Servicing
Agreement with respect to the Mortgage Loans.
4. Citicorp warrants and represents to, and covenants with, Assignor
and Assignee that as of the date hereof:
(a) Citicorp is duly organized, validly existing and in good standing
under the laws of New York and is and will remain in compliance with the laws of
each state in which any Mortgaged Property is located to the extent necessary to
ensure the enforceability of each Mortgage Loan and the servicing of the
Mortgage Loan in accordance with the terms of this Agreement, 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 Citicorp by any
such state.
(b) No approval of the transactions contemplated by this Agreement from
any federal or state regulatory authority having jurisdiction over Citicorp is
required or, if required, such approval has been or will, prior to the Closing
Date, be obtained;
(c) The consummation of the transactions contemplated by this Agreement
are in the ordinary course of business of Citicorp and will not result in the
breach of any term or provision of the charter or by-laws of Citicorp or result
in the breach of any term or provision of, or conflict with or constitute a
default under or result in the acceleration of any obligation under, any
agreement, indenture or loan or credit agreement or other instrument to which
Citicorp or its property is subject, or result in the violation of any law,
rule, regulation, order, judgment or decree to which Citicorp or its property is
subject;
(d) Citicorp shall establish a Custodial Account and an Escrow Account
under the Purchase and Servicing Agreement in favor of the Assignee with respect
to the Mortgage Loans separate from the Custodial Account and Escrow Account
established in favor of Assignor; and
(f) Neither this Agreement nor any certification, statement, report or
other agreement, document or instrument furnished or to be furnished by Citicorp
pursuant to this Agreement contains or will contain any materially untrue
statement of fact or omits or will omit to state a fact necessary to make the
statements contained therein not misleading.
5. Assignor hereby agrees to indemnify and hold the Assignee (and its
successors and assigns) harmless against any and all claims, losses, penalties,
fines, forfeitures, legal fees and related costs, judgments, and any other
costs, fees and expenses that Assignee (and its successors and assigns) may
sustain in any way related to any breach of the representations or warranties of
Assignor set forth in this Agreement or the breach of any covenant or condition
contained herein.
RECOGNITION OF ASSIGNEE
6. From and after the date hereof, Citicorp shall recognize Assignee as
owner of the Mortgage Loans and will service the Mortgage Loans in accordance
with the Purchase and Servicing Agreement, as if Assignee and Citicorp had
entered into a separate purchase and servicing agreement for the servicing of
the Mortgage Loans in the form of the Purchase and Servicing Agreement, the
terms of which are incorporated herein by reference. It is the intention of
Assignor, Citicorp and Assignee that this Agreement will constitute a separate
and distinct servicing agreement, and the entire agreement, between Citicorp and
Assignee to the extent of the Mortgage Loans and shall be binding upon and for
the benefit of the respective successors and assigns of the parties hereto.
Neither Citicorp nor Assignor shall amend or agree to amend, modify, waive or
otherwise alter any of the terms or provisions of the Purchase and Servicing
Agreement which amendment, modification, waiver or other alteration would in any
way affect the Mortgage Loans without the prior written consent of Assignee.
7. The Mortgage Loans shall be serviced by Citicorp for Assignee in
accordance with all applicable state, federal and local laws as well as in
conformity with the provisions of the applicable Mortgages and Mortgage Notes,
and pursuant to the terms and conditions of this Agreement. Notwithstanding the
foregoing, Citicorp shall have no liability or obligations to either Assignor or
Assignee with respect to the representations and warranties contained in the
Purchase and Servicing Agreement made with respect to origination of the
Mortgage Loans, nor shall Citicorp be obligated to repurchase any Mortgage Loan
in accordance with the Purchase and Servicing Agreement due to a breach of any
such representation or warranty.
8. 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 Prime Mortgage Trust, Mortgage Pass-Through Certificates, Series 2005-5 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 Prime Mortgage Trust,
Mortgage Pass-Through Certificates, Series 2005-5.
MISCELLANEOUS
9. All demands, notices and communications related to the Mortgage
Loans, the Purchase and Servicing Agreement and this 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 Citicorp,
CitiMortgage, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇'▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Capital Markets MS 55
with a copy to Investor Reporting Department MS 313
(b) In the case of Assignee
U.S. Bank National Association, as Trustee ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: Corporate
Trust Services, PRIME 2005-5 Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
(c) In the case of Assignor,
EMC Mortgage Corporation
Mac ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Bear ▇▇▇▇▇▇▇ Mortgage Capital Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
10. Citicorp hereby acknowledges that ▇▇▇▇▇ Fargo Bank, N.A. (the
"Master Servicer") has been appointed as the master servicer of the Mortgage
Loans pursuant to the Pooling and Servicing Agreement, dated as of December 1,
2005, among Structured Asset Mortgage Investments II Inc., the Assignor, ▇▇▇▇▇
Fargo Bank, N.A. and the Assignee (the "Pooling and Servicing Agreement") and
therefor has the right to enforce all obligations of Citicorp, as they relate to
the Mortgage Loans, under the Purchase and Servicing Agreement. Such right will
include, without limitation, the right to terminate Citicorp under the Purchase
and Servicing Agreement upon the occurrence of an event of default thereunder,
the right to receive all remittances required to be made by Citicorp under the
Purchase and Servicing Agreement, the right to receive all monthly reports and
other data required to be delivered by Citicorp under the Purchase and Servicing
Agreement, the right to examine the books and records of Citicorp,
indemnification rights, and the right to exercise certain rights of consent and
approval relating to actions taken by Citicorp. Citicorp shall make all
distributions under the Purchase and Servicing Agreement, as they relate to the
Mortgage Loans, to the Master Servicer by wire transfer of immediately available
funds to:
PRIME 2005-5 Master Servicer Collection Account
▇▇▇▇▇ Fargo Bank, N.A.
ABA# ▇▇▇▇▇▇▇▇▇
Account Name: SAS Clearing
Account # ▇▇▇▇▇▇▇▇▇▇
For Further Credit to: PRIME 2005-5, Account # ▇▇▇▇▇▇▇▇
and Citicorp shall deliver all reports required to be delivered under the
Purchase and Servicing Agreement, as they relate to the Mortgage Loans, to the
Assignee at the address set forth in Section 9(b) herein and to the Master
Servicer at:
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Client Manager PRIME 2005-5
11. This Agreement shall be construed in accordance with the laws of
the State of New York, except to the extent preempted by Federal law, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
12. 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 Agreement.
13. No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced.
14. This Agreement shall inure to the benefit of the successors and
assigns of the parties hereto. Any entity into which the Assignor, Assignee or
Citicorp may be merged or consolidated shall, without the requirement for any
further writing, be deemed the Assignor, Assignee or Citicorp, respectively,
hereunder.
15. This Agreement shall survive the conveyance of the Mortgage Loans,
the assignment of the Purchase and Servicing Agreement to the extent of the
Mortgage Loans by the Assignor to the Assignee and the termination of the
Purchase and Servicing Agreement.
16. This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument.
17. In the event that any provision of this Agreement conflicts with
any provision of the Purchase and Servicing Agreement with respect to the
Mortgage Loans, the terms of this Agreement shall control.
MODIFICATION OF PURCHASE AND SERVICING AGREEMENT
18. Citicorp and Assignor hereby amend the Purchase and Servicing
Agreement as follows:
(a) Annual Statement as to Compliance.
Citicorp will deliver to the Master Servicer on or before March 15 of
each year, beginning with March 15, 2006, an Officers' Certificate in a form
acceptable for filing with the Securities and Exchange Commission as an exhibit
to a Form 10-K stating that (i) a review of the activities of Citicorp during
the preceding calendar year and of performance under this Agreement has been
made under such officers' supervision, (ii) Citicorp has fully complied with the
provisions of this Agreement and (iii) to the best of such officers' knowledge,
based on such review, Citicorp has fulfilled all of its obligations under this
Agreement throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to such
officer and the nature and status thereof.
(b) Annual Certification.
Citicorp will deliver to the Master Servicer, on or before March 15 of
each year beginning March 15, 2006 a certification in the form attached hereto
as Exhibit A with respect to the servicing reports delivered by Citicorp
pursuant to this Agreement, Citicorp's compliance with the servicing obligations
set forth in this Agreement and any other information within the control of
Citicorp. Such certification shall be signed by the senior officer in charge of
servicing of Citicorp. In addition, Citicorp shall provide such other
information with respect to the Mortgage Loans and the servicing and
administration thereof within the control of Citicorp which shall be required to
enable the Master Servicer, Trustee or Depositor, as applicable, to comply with
the reporting requirements of the Securities and Exchange Act of 1934, as
amended.
Citicorp shall indemnify and hold harmless the Master Servicer 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 Citicorp or any of its officers, directors, agents or
affiliates of its obligations hereunder. If the indemnification provided for
herein is for any reason held unenforceable in whole or in part, then Citicorp
agrees that it shall contribute to the amount paid or payable by the Master
Servicer as a result of the losses, claims, damages or liabilities of the Master
Servicer in such proportion as is appropriate to reflect the relative fault of
the Master Servicer on the one hand and Citicorp on the other in connection with
a breach of the Citicorp's obligations hereunder or Citicorp's negligence, bad
faith or willful misconduct in connection therewith; provided Citicorp shall not
be required to contribute more than an amount which is permissible under
applicable law.
(c) Annual Independent Certified Public Accountants' Servicing Report.
On or before March 15th of each year, Citicorp at its expense shall
cause a firm of independent public accountants which is a member of the American
Institute of Certified Public Accountants to furnish a statement to the Master
Servicer in a form acceptable for filing with the Securities and Exchange
Commission as an exhibit to a Form 10-K to the effect that such firm has
examined certain documents and records relating to Citicorp's servicing of
mortgage loans of the same type as the Mortgage Loans pursuant to 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 Citicorp's servicing has been conducted in
compliance with the agreements examined, 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. Copies of such statement shall be provided by
Citicorp to the Master Servicer.
(d) The following shall constitute an Event of Default under the
Purchase and Servicing Agreement:
failure by Citicorp to duly perform, within the required time period,
its obligations under Subsections (a), (b) and (c) of this Section 12 which
failure continues unremedied for a period of ten (10) days after the date on
which written notice of such failure, requiring the same to be remedied, shall
have been given to Citicorp by any party to this Agreement or by any master
servicer responsible for master servicing the Mortgage Loans pursuant to a
securitization of such Mortgage Loans.
(e) Third Party Beneficiary.
The Master Servicer shall be considered a third party beneficiary to
this Agreement entitled to all the rights and benefits accruing to the Master
Servicer herein as if it were a direct party to this Agreement.
(f) Business Day.
The definition of "Business Day" shall be revised to include a day on
which banking or savings and loan institutions in the States of Maryland and
Minnesota are authorized or obligated by law or executive order to be closed.
(g) The following definitions are added to the Purchase and Servicing
Agreement:
MASTER SERVICER: ▇▇▇▇▇ Fargo Bank, N.A., or its successors in interest
who meet the qualifications of the Pooling and Servicing Agreement and this
Agreement.
DEPOSITOR: Structured Asset Mortgage Investments II Inc.
TRUSTEE: U.S. Bank National Association, or its successor in interest,
or any successor trustee appointed as provided in the Pooling and Servicing
Agreement.
(h) The following sentence shall be added to the end of the first
paragraph of Section 11.02 of the Agreement: In addition, not later than seven
(7) Business Days after each month end, Seller shall furnish to the Master
Servicer a report in the form of Exhibit B to the Assignment, Assumption and
Recognition Agreement, dated as of December 29, 2005, among Seller, EMC Mortgage
Corporation and U.S. Bank National Association with respect to defaulted
Mortgage Loans and a report in the form of Exhibit C to the Assignment,
Assumption and Recognition Agreement, dated as of December 29, 2005, among
Seller, EMC Mortgage Corporation and U.S. Bank National Association with respect
to realized loss calculations.
IN WITNESS WHEREOF, the parties hereto have executed this AAR Agreement
as of the day and year first above written.
EMC MORTGAGE CORPORATION
Assignor
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
U.S. BANK NATIONAL
ASSOCIATION, not in its
individual capacity but
solely as Trustee for the
holders of Prime Mortgage
Trust, Mortgage
Pass-Through Certificates,
Series
2005-5
Assignee
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
CITIMORTGAGE, INC.
Citicorp
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
Acknowledged and Agreed:
▇▇▇▇▇ FARGO BANK, N.A.
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
ATTACHMENT 1
MORTGAGE LOAN SCHEDULE
(AVAILABLE UPON REQUEST)
ATTACHMENT 2
MORTGAGE LOAN PURCHASE AND SERVICING AGREEMENT
EXHIBIT A
FORM OF COMPANY CERTIFICATION
CITIMORTGAGE, INC.
CERTIFICATION
We, CitiMortgage Inc., certify to ▇▇▇▇▇ Fargo, and its officers,
directors agents and affiliates, and with the knowledge and intent that they
will rely upon this certification for the attached deals (see Attachment I):
1. Based on my knowledge, the information in the Annual Statement
of Compliance, the Annual Independent Public Accountant's
Servicing Report and all servicing reports, officer's
certificates and other information relating to the servicing
of the loans submitted to the Master Servicer 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 light of the circumstances under which
such statements were made, not misleading as of the date of
this certification;
2. The Servicing information required to be provided to the
Master Servicer by the Seller under the Servicing Agreements
has been provided to the Master Servicer;
3. I am responsible for reviewing the activities performed by the
Seller under the Servicing Agreements and based upon the
review required by the Servicing Agreements, and except as
disclosed in the Annual Statement of Compliance or the Annual
Independent Accountant's Servicing Report, the Seller has, as
of the date of this certification fulfilled its obligation
under the Servicing Agreements; and
4. I have disclosed to the Master Servicer all significant
deficiencies relating to the Seller's compliance with the
minimum servicing standards in accordance with a review
conducted in compliance with the Uniform Single Attestation
Program for Mortgage Bankers of similar standard as set forth
in the Servicing Agreements.
By:
------------------------------
Name
Title
Date
EXHIBIT B
EXHIBIT : 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.
------------------------------------- ------------------------------------------ ----------- --------------
▇▇▇▇_▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 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
MM/DD/YYYY payment is due to the
servicer at the end of processing
cycle, as reported by Servicer.
------------------------------------- ------------------------------------------ ----------- --------------
LOAN_TYPE Loan Type (i.e. FHA, VA, Conv)
------------------------------------- ------------------------------------------ ----------- --------------
BANKRUPTCY_FILED_DATE The date a particular bankruptcy claim MM/DD/YYYY
was filed.
------------------------------------- ------------------------------------------ ----------- --------------
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 MM/DD/YYYY
has been approved by the courts
------------------------------------- ------------------------------------------ ----------- --------------
BANKRUPTCY_DCHRG_DISM_DATE The Date The Loan Is Removed From MM/DD/YYYY
Bankruptcy. Either by Dismissal,
Discharged and/or a Motion For Relief
Was Granted.
------------------------------------- ------------------------------------------ ----------- --------------
LOSS_MIT_APPR_DATE The Date The Loss Mitigation Was MM/DD/YYYY
Approved By The Servicer
------------------------------------- ------------------------------------------ ----------- --------------
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 MM/DD/YYYY
Scheduled To End/Close
------------------------------------- ------------------------------------------ ----------- --------------
LOSS_MIT_ACT_COMP_DATE The Date The Loss Mitigation Is Actually MM/DD/YYYY
Completed
------------------------------------- ------------------------------------------ ----------- --------------
FRCLSR_APPROVED_DATE The date DA Admin sends a letter
to the MM/DD/YYYY servicer with
instructions to begin foreclosure
proceedings.
------------------------------------- ------------------------------------------ ----------- --------------
ATTORNEY_REFERRAL_DATE Date File Was Referred To Attorney to MM/DD/YYYY
Pursue Foreclosure
------------------------------------- ------------------------------------------ ----------- --------------
FIRST_LEGAL_DATE Notice of 1st legal filed by an Attorney MM/DD/YYYY
in a Foreclosure Action
------------------------------------- ------------------------------------------ ----------- --------------
FRCLSR_SALE_EXPECTED_DATE The date by which a foreclosure sale is MM/DD/YYYY
expected to occur.
------------------------------------- ------------------------------------------ ----------- --------------
FRCLSR_SALE_DATE The actual date of the foreclosure sale. MM/DD/YYYY
------------------------------------- ------------------------------------------ ----------- --------------
FRCLSR_SALE_AMT The amount a property sold for at the 2 No commas(,)
foreclosure sale. or dollar
signs ($)
------------------------------------- ------------------------------------------ ----------- --------------
EVICTION_START_DATE The date the servicer initiates eviction MM/DD/YYYY
of the borrower.
------------------------------------- ------------------------------------------ ----------- --------------
EVICTION_COMPLETED_DATE The date the court revokes legal
MM/DD/YYYY possession of the
property from the borrower.
------------------------------------- ------------------------------------------ ----------- --------------
LIST_PRICE The price at which an REO property is 2 No commas(,)
marketed. or dollar
signs ($)
------------------------------------- ------------------------------------------ ----------- --------------
LIST_DATE The date an REO property is listed at a MM/DD/YYYY
particular price.
------------------------------------- ------------------------------------------ ----------- --------------
OFFER_AMT The dollar value of an offer for an REO 2 No commas(,)
property. or dollar
signs ($)
------------------------------------- ------------------------------------------ ----------- --------------
OFFER_DATE_TIME The date an offer is received by DA MM/DD/YYYY
Admin or by the Servicer.
------------------------------------- ------------------------------------------ ----------- --------------
REO_CLOSING_DATE The date the REO sale of the property is MM/DD/YYYY
scheduled to close.
------------------------------------- ------------------------------------------ ----------- --------------
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 MM/DD/YYYY
performed.
------------------------------------- ------------------------------------------ ----------- --------------
APPRAISAL_DATE The date the appraisal was done. MM/DD/YYYY
------------------------------------- ------------------------------------------ ----------- --------------
CURR_PROP_VAL The current "as is" value of the 2
property based on brokers price opinion
or appraisal.
------------------------------------- ------------------------------------------ ----------- --------------
REPAIRED_PROP_VAL The amount the property would be worth 2
if repairs are completed pursuant to a
broker's price opinion or appraisal.
------------------------------------- ------------------------------------------ ----------- --------------
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 MM/DD/YYYY
With Mortgage Insurance Company.
------------------------------------- ------------------------------------------ ----------- --------------
MI_CLAIM_AMT Amount of Mortgage Insurance Claim Filed No commas(,)
or dollar signs
($)
------------------------------------- ------------------------------------------ ----------- --------------
MI_CLAIM_PAID_DATE Date Mortgage Insurance Company MM/DD/YYYY
Disbursed Claim Payment
------------------------------------- ------------------------------------------ ----------- --------------
MI_CLAIM_AMT_PAID Amount Mortgage Insurance Company Paid 2 No commas(,)
On Claim or dollar
signs ($)
------------------------------------- ------------------------------------------ ----------- --------------
POOL_CLAIM_FILED_DATE Date Claim Was Filed With Pool Insurance MM/DD/YYYY
Company
------------------------------------- ------------------------------------------ ----------- --------------
POOL_CLAIM_AMT Amount of Claim Filed With Pool 2 No commas(,)
Insurance Company or dollar
signs ($)
------------------------------------- ------------------------------------------ ----------- --------------
POOL_CLAIM_PAID_DATE Date Claim Was Settled and The Check Was MM/DD/YYYY
Issued By The Pool Insurer
------------------------------------- ------------------------------------------ ----------- --------------
POOL_CLAIM_AMT_PAID Amount Paid On Claim By Pool Insurance 2 No commas(,)
Company 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 ($)
------------------------------------- ------------------------------------------ ----------- --------------
FHA_PART_B_CLAIM_FILED_DATE Date FHA Part B Claim Was Filed With MM/DD/YYYY
HUD
------------------------------------- ------------------------------------------ ----------- --------------
FHA_PART_B_CLAIM_AMT Amount of FHA Part B Claim Filed 2 No commas(,)
or dollar
signs ($)
------------------------------------- ------------------------------------------ ----------- --------------
FHA_PART_B_CLAIM_PAID_DATE Date HUD Disbursed Part B Claim MM/DD/YYYY
Payment
------------------------------------- ------------------------------------------ ----------- --------------
FHA_PART_B_CLAIM_PAID_AMT Amount HUD Paid on Part B Claim 2 No commas(,)
or dollar
signs ($)
------------------------------------- ------------------------------------------ ----------- --------------
VA_CLAIM_FILED_DATE Date VA Claim Was Filed With the MM/DD/YYYY
Veterans Admin
------------------------------------- ------------------------------------------ ----------- --------------
VA_CLAIM_PAID_DATE Date Veterans Admin. Disbursed VA Claim MM/DD/YYYY
Payment
------------------------------------- ------------------------------------------ ----------- --------------
VA_CLAIM_PAID_AMT Amount Veterans Admin. Paid on VA Claim 2 No commas(,)
or dollar
signs ($)
------------------------------------- ------------------------------------------ ----------- --------------
EXHIBIT 2: STANDARD FILE CODES - DELINQUENCY REPORTING
The LOSS MIT TYPE field should show the approved Loss Mitigation Code as
follows:
o ASUM- Approved Assumption
o BAP- Borrower Assistance Program
o CO- Charge Off
o DIL- Deed-in-Lieu
o FFA- Formal Forbearance Agreement
o MOD- Loan Modification
o PRE- Pre-Sale
o SS- Short Sale
o 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:
o Mortgagor
o Tenant
o Unknown
o Vacant
The PROPERTY CONDITION field should show the last reported condition of the
property as follows:
o Damaged
o Excellent
o Fair
o Gone
o Good
o Poor
o Special Hazard
o Unknown
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
------------------------ -------------------------------------------------------
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
------------------------ -------------------------------------------------------
EXHIBIT C
EXHIBIT : 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.
(i) 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.
(iii) 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 ( ).
EXHIBIT 3A: 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)
ESCROW DISBURSEMENT DETAIL
------------------ --------------- ---------------- --------------- ---------------- ---------------- ----------------
TYPE DATE PAID PERIOD OF TOTAL PAID BASE AMOUNT PENALTIES INTEREST
(TAX /INS.) COVERAGE
------------------ --------------- ---------------- --------------- ---------------- ---------------- ----------------
------------------ --------------- ---------------- --------------- ---------------- ---------------- ----------------
------------------ --------------- ---------------- --------------- ---------------- ---------------- ----------------
------------------ --------------- ---------------- --------------- ---------------- ---------------- ----------------
------------------ --------------- ---------------- --------------- ---------------- ---------------- ----------------
------------------ --------------- ---------------- --------------- ---------------- ---------------- ----------------
------------------ --------------- ---------------- --------------- ---------------- ---------------- ----------------
------------------ --------------- ---------------- --------------- ---------------- ---------------- ----------------
------------------ --------------- ---------------- --------------- ---------------- ---------------- ----------------
EMC MORTGAGE CORPORATION
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
This Assignment, Assumption and Recognition Agreement (the "AAR Agreement")
is made and entered into as of December 29, 2005 (the "Closing Date"), among
Structured Asset Mortgage Investments II Inc. (the "Assignor"), U.S. Bank
National Association, not individually but solely as trustee for the holders of
Prime Mortgage Trust, Mortgage Pass-Through Certificates, Series 2005-5 (the
"Assignee") and EMC Mortgage Corporation (the "Company").
Whereas, the Assignor and the Company entered into that certain Servicing
Agreement, dated as of December 1, 2005 (the "Servicing Agreement"), pursuant to
which the Company agreed to service certain mortgage loans (the "Mortgage
Loans") on behalf of the Assignor.
In consideration of the mutual promises and agreements contained herein, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree that the Mortgage Loans listed
on ATTACHMENT 1 annexed hereto (the "Assigned Loans") shall be subject to the
terms of this AAR Agreement. Any capitalized term used and not otherwise defined
herein shall have the meaning assigned to such term in the Servicing Agreement.
ASSIGNMENT AND ASSUMPTION
1. Except as expressly provided for herein, the Assignor hereby grants,
transfers and assigns to the Assignee all of its right, title and interest as
in, to and under the Assigned Loans, and as they relate to the Assigned Loans,
the Servicing Agreement. Notwithstanding anything to the contrary contained
herein, the Assignor is not assigning to the Assignee any of its right, title
and interest in, to and under the Servicing Agreement with respect to any other
mortgage loan other than the Assigned Loans. Except as is otherwise expressly
provided herein, the Assignor makes no representations, warranties or covenants
to the Assignee and the Assignee acknowledges that the Assignor has no
obligations to the Assignee under the terms of the Servicing Agreement or
otherwise relating to the transaction contemplated herein (including, but not
limited to, any obligation to indemnify the Assignee).
Assignor acknowledges and agrees that upon execution of this AAR
Agreement, with respect to the Assigned Loans, the Assignee shall become the
"Owner" under the Servicing Agreement, and all representations, warranties and
covenants by the "Servicer" to the "Owner" under the Servicing Agreement
including, but not limited to, the rights to receive indemnification, shall
accrue to Assignee by virtue of this AAR Agreement.
REPRESENTATIONS, WARRANTIES AND COVENANTS
2. Assignor warrants and represents to, and covenants with, Assignee
and Company as of the date hereof that:
a. Attached hereto as ATTACHMENT 2 is a true and correct copy of
the Servicing Agreement, which Servicing 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. Assignor was 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 Servicing
Agreement 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 Servicing 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 the Company with respect to the Servicing
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 AAR Agreement,
and to consummate the transactions set forth herein. The
consummation of the transactions contemplated by this AAR
Agreement is in the ordinary course of 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 AAR 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 AAR Agreement has been duly executed and
delivered by Assignor and, upon the due authorization,
execution and delivery by Assignee and the parties hereto,
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 AAR Agreement, or the consummation by it of
the transactions contemplated hereby. 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; and
h. There is no action, suit, proceeding, investigation or
litigation pending or, to Assignor's knowledge, threatened,
which either in any instance or in the aggregate, if
determined adversely to Assignor, would adversely affect
Assignor's execution or delivery of, or the enforceability of,
this AAR Agreement, or the Assignor's ability to perform its
obligations under this AAR Agreement.
3. The Assignee warrants and represents to, and covenants with, the
Assignor and the Company as of the date hereof that:
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 hold
the Assigned Loans as trustee on behalf of the holders of
Prime Mortgage Trust, Mortgage Pass-Through Certificates,
Series 2005-5;
b. Assignee has full corporate power and authority to execute,
deliver and perform its obligations under this AAR Agreement,
and to consummate the transactions set forth herein. The
consummation of the transactions contemplated by this AAR
Agreement is in the ordinary course of 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 AAR 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 AAR Agreement has been duly executed and
delivered by Assignee and, upon the due authorization,
execution and delivery by Assignor and the parties hereto,
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 AAR Agreement, or the consummation by it of
the transactions contemplated hereby;
d. There is no action, suit, proceeding, investigation or
litigation pending or, to Assignee's knowledge, threatened,
which either in any instance or in the aggregate, if
determined adversely to Assignee, would adversely affect
Assignee's execution or delivery of, or the enforceability of,
this AAR Agreement, or the Assignee's ability to perform its
obligations under this AAR Agreement; and
e. Assignee assumes for the benefit of each of Assignor and
Company all of Assignor's rights as "Owner" under the
Servicing Agreement but solely with respect to the Assigned
Loans.
4. Company warrants and represents to, and covenants with, Assignee and
Assignor, as of the date hereof, that:
a. Attached hereto as ATTACHMENT 2 is a true and accurate copy of
the Servicing 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 Servicing Agreement;
c. Company has full corporate power and authority to execute,
deliver and perform its obligations under this AAR Agreement,
and to consummate the transactions set forth herein. The
consummation of the transactions contemplated by this AAR
Agreement is in the ordinary course of 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 AAR 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 AAR 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;
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 Company in
connection with the execution, delivery or performance by
Company of this AAR Agreement, or the consummation by it of
the transactions contemplated hereby;
e. Company shall establish a Custodial Account and an Escrow
Account under the Servicing Agreement in favor of Assignee
with respect to the Assigned Loans separate from the Custodial
Account and Escrow Account previously established under the
Servicing Agreement in favor of Assignor;
f. Pursuant to Section 10.02 of the Servicing Agreement, the
Company hereby restates the representations and warranties set
forth in Article III of the Servicing Agreement with respect
to the Company and/or the Assigned Loans; and
g. Neither this AAR Agreement nor any certification, statement,
report or other agreement, document or instrument furnished or
to be furnished by the Company pursuant to this AAR Agreement
contains or will contain any materially untrue statement of
fact or omits or will omit to state a fact necessary to make
the statements contained therein not misleading.
5. Assignor hereby agrees to indemnify and hold the Assignee (and its
successors and assigns) harmless against any and all claims, losses, penalties,
fines, forfeitures, legal fees and related costs, judgments, and any other
costs, fees and expenses that Assignee (and its successors and assigns) may
sustain in any way related to any breach of the representations or warranties of
Assignor set forth in this AAR Agreement or the breach of any covenant or
condition contained herein.
RECOGNITION OF ASSIGNEE
6. From and after the date hereof, Company shall recognize Assignee as
owner of the Assigned Loans, and acknowledges that the Assigned Loans will be
part of a REMIC, and will service the Assigned Loans in accordance with the
Servicing Agreement but in no event in a manner that would (i) cause any REMIC
to fail to qualify as a REMIC or (ii) 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). It is the intention of
Assignor, Company and Assignee that this AAR 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 Servicing Agreement which
amendment, modification, waiver or other alteration would in any way affect the
Assigned Loans without the prior written consent of Assignee.
7. Notwithstanding any term hereof to the contrary, the execution and
delivery of this AAR Agreement by the Assignee is solely in its capacity as
trustee for Prime Mortgage Trust, Mortgage Pass-Through Certificates, Series
2005-5 and not indiviually, and any recourse against the Assignee in respect of
any obligations it may have under or pursuant to the terms of this AAR Agreement
shall be limited solely to the assets it may hold as trustee of Prime Mortgage
Trust, Mortgage Pass-Through Certificates, Series 2005-5.
MISCELLANEOUS
8. All demands, notices and communications related to the Assigned
Loans, the Servicing Agreement and this AAR 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, EMC Mortgage Corporation Mac ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇ Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
b. In the case of Assignor, Structured Asset Mortgage Investments
II Inc. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
c. In the case of Assignee, U.S. Bank National Association, as
Trustee ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ Attention: Corporate Trust Services, PRIME 2005-5
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
9. The Company hereby acknowledges that ▇▇▇▇▇ Fargo Bank, N.A. (the
"Master Servicer") has been appointed as the master servicer of the Assigned
Loans pursuant to the Pooling and Servicing Agreement, dated as of December 1,
2005, among the Assignor, the Assignee, the Company, the Master Servicer and
▇▇▇▇▇ Fargo Bank, N.A. as securities administrator, and therefor has the right
to enforce all obligations of the Company, as they relate to the Assigned Loans,
under the Servicing Agreement. Such right will include, without limitation, the
right to terminate the Company under the Servicing Agreement upon the occurrence
of an event of default thereunder, the right to receive all remittances required
to be made by the Company under the Servicing Agreement, the right to receive
all monthly reports and other data required to be delivered by the Company under
the Servicing Agreement, the right to examine the books and records of the
Company, indemnification rights, and the right to exercise certain rights of
consent and approval relating to actions taken by the Company. The Company shall
make all distributions under the Servicing Agreement, as they relate to the
Assigned Loans, to the Master Servicer by wire transfer of immediately available
funds to:
PRIME Trust 2005-5
▇▇▇▇▇ Fargo Bank, N.A.
ABA# ▇▇▇▇▇▇▇▇▇
SAS Clearing
Account # ▇▇▇▇▇▇▇▇▇▇
For Further Credit to: PRIME 2005-5, Account # ▇▇▇▇▇▇▇▇
and the Company shall deliver all reports required to be delivered under the
Servicing Agreement, as they relate to the Assigned Loans, to the Assignee at
the address set forth in Section 8 herein and to the Master Servicer at:
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Client Manager PRIME 2005-5
Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇
10. THIS AAR 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.
11. No term or provision of this AAR Agreement may be waived or
modified unless such waiver or modification is in writing and signed by the
party against whom such waiver or modification is sought to be enforced.
12. This AAR 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.
13. This AAR Agreement shall survive the conveyance of the Assigned
Loans, the assignments of the Servicing Agreement to the extent of the Assigned
Loans by Assignor to Assignee and the termination of the Servicing Agreement.
14. This AAR Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original and all such
counterparts shall constitute one and the same instrument.
15. In the event that any provision of this AAR Agreement conflicts
with any provision of the Servicing Agreement with respect to the Assigned
Loans, the terms of this AAR Agreement shall control.
IN WITNESS WHEREOF, the parties hereto have executed this AAR Agreement
on the date first above written.
STRUCTURED ASSET MORTGAGE U.S. BANK NATIONAL ASSOCIATION, NOT
INVESTMENTS II INC., INDIVIDUALLY BUT SOLELY AS TRUSTEE
THE ASSIGNOR FOR THE HOLDERS OF PRIME MORTGAGE
TRUST, MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2005-5, THE
ASSIGNEE
By: By:
------------------------------ --------------------------------
Name: Name:
---------------------------- ------------------------------
Title: Title:
--------------------------- -----------------------------
EMC MORTGAGE CORPORATION,
THE COMPANY
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
ACKNOWLEDGED AND AGREED:
▇▇▇▇▇ FARGO BANK, N.A.
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
ATTACHMENT I
Assigned Loans
ATTACHMENT II
Servicing Agreement
FIFTH THIRD MORTGAGE COMPANY
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (the
"Assignment") is dated as of December 29, 2005, by and among EMC Mortgage
Corporation (the "Assignor"), U.S. Bank National Association, as trustee for the
holders of Prime Mortgage Trust, Mortgage Pass-Through Certificates, Series
2005-5 (the "Assignee") and Fifth Third Mortgage Company (the "Company").
Whereas, the Company sold the mortgage loans identified on EXHIBIT A
attached hereto (the "Mortgage Loans") on a servicing retained basis to the
Assignor pursuant to that certain Purchase, Warranties and Servicing Agreement,
dated as of September 1, 2002 (the "Purchase, Warranties and Servicing
Agreement") between the Company and the Assignor; and
Whereas, the Mortgage Loans were subsequently transferred to various
trusts (the "Underlying Trusts") in connection with various securitizations; and
Whereas, pursuant to the Pooling and Servicing Agreements for the
Underlying Trusts (the "Underlying Pooling Agreements"), the Assignor had the
right to purchase the Mortgage Loans (the "Call Right") from the Underlying
Trusts following the occurrence of certain trigger events (the "Trigger Events")
set forth in the Underlying Pooling Agreements; and
Whereas, following the occurrence of the Trigger Events, the Assignor
exercised the related Call Right and purchased the Mortgage Loans from the
Underlying Trusts; and
Whereas, Assignor and Company desire that, from and after the date
hereof, all of the Mortgage Loans be serviced in accordance with the terms and
conditions of the Purchase, Warranties and Servicing Agreement;
NOW, THEREFORE, in consideration of the mutual promises and agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, the parties hereto agree that the
Mortgage Loans shall be subject to the terms of this Assignment. Defined terms
used in this Assignment and not otherwise defined herein shall have the meaning
set forth in the Purchase, Warranties and Servicing Agreement.
RECOGNITION OF THE ASSIGNOR
1. Company recognizes Assignor as owner of the Mortgage Loans and
acknowledges that it is currently servicing the Mortgage Loans for the benefit
of Assignor. From and after the date hereof, Company agrees that it will service
the Mortgage Loans pursuant to the terms of the Purchase, Warranties and
Servicing Agreement (as modified herein) which terms are incorporated herein by
reference.
ASSIGNMENT AND ASSUMPTION
2. The Assignor specifically reserves and does not assign to the
Assignee hereunder any and all right, title and interest in, to and under and
all obligations of the Assignor with respect to any mortgage loans subject to
the Purchase, Warranties and Servicing Agreement which are not the Mortgage
Loans set forth on EXHIBIT A attached hereto and are not the subject of this
Assignment.
3. The Assignor warrants and represents to the Assignee and to the
Company as of the date hereof:
(a) Attached hereto as EXHIBIT B is a true and accurate copy of
the Purchase, Warranties and Servicing 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) The Assignor was the lawful owner of the Mortgage Loans with
full right to transfer the Mortgage Loans and any and all of
its interests, rights and obligations under the Purchase,
Warranties and Servicing Agreement as they relate to the
Mortgage Loans, free and clear from any and all claims and
encumbrances; and upon the transfer of the Mortgage Loans to
the Assignee as contemplated herein, the Assignee shall have
good title to each and every Mortgage Loan, as well as any and
all of the Assignor's interests, rights and obligations under
the Purchase, Warranties and Servicing Agreement as they
relate to the Mortgage Loans, free and clear of any and all
liens, claims and encumbrances;
(c) There are no offsets, counterclaims or other defenses
available to the Assignor with respect to the Mortgage Loans
or the Purchase, Warranties and Servicing Agreement;
(d) The Assignor has no knowledge of, and has not received notice
of, any waivers under, or any modification of, any Mortgage
Loan;
(e) The 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 Mortgage Loans;
(f) The Assignor has full corporate power and authority to
execute, deliver and perform its obligations under this
Assignment, and to consummate the transactions set forth
herein. The consummation of the transactions contemplated by
this Assignment 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 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 the Assignor of this Assignment and the
consummation by it of the transactions contemplated hereby,
have been duly authorized by all necessary corporate action on
part of the Assignor. This Assignment has been duly executed
and delivered by the Assignor and, upon the due authorization,
execution and delivery by the Assignee, and the Company, will
constitute the valid and legally binding obligation of the
Assignor enforceable against the Assignor in accordance with
its terms except as enforceability may be limited by
bankruptcy, reorganization, insolvency, moratorium or other
similar laws now or hereafter in effect relating to creditors'
rights generally, and by general principles of equity
regardless of whether enforceability is considered in a
proceeding in equity or at law;
(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 the Assignor in
connection with the execution, delivery or performance by the
Assignor of this Assignment, or the consummation by it of the
transactions contemplated hereby. Neither the Assignor nor
anyone acting on its behalf has offered, transferred, pledged,
sold or otherwise disposed of the Mortgage Loans or any
interest in the Mortgage Loans, or solicited any offer to buy
or accept a transfer, pledge or other disposition of the
Mortgage Loans, or any interest in the Mortgage Loans or
otherwise approached or negotiated with respect to the
Mortgage Loans, or any interest in the Mortgage 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
Mortgage Loans under the Securities Act of 1933, as amended
(the "1933 Act") or which would render the disposition of the
Mortgage Loans a violation of Section 5 of the 1933 Act or
require registration pursuant thereto; and
(h) The Assignor has received from the Company, and has delivered
to the Assignee, all documents required to be delivered to the
Company prior to the date hereof with respect to the Mortgage
Loans and has not received, and has not requested from the
Company, any additional documents.
4. The Assignee represents, warrants and covenants with the Assignor
and the Company that:
(a) The Assignee is a national banking association, duly
organized, validly existing and in good standing under the
laws of the United States, and has all requisite power and
authority to acquire, own and purchase the Mortgage Loans;
(b) The Assignee has full power and authority to execute, deliver
and perform under this Assignment, and to consummate the
transactions set forth herein. The consummation of the
transactions contemplated by this Assignment 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 bylaws,
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 and the
consummation by it of the transactions contemplated hereby,
have been duly authorized by all necessary corporate action of
the Assignee. This Assignment 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 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;
(c) 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, or the consummation by it of the
transactions contemplated hereby;
(d) There is no action, suit, proceeding, investigation or
litigation pending or, to the Assignee's knowledge,
threatened, which either in any instance or in the aggregate,
if determined adversely to the Assignee, would adversely
affect the Assignee's execution or delivery of, or the
enforceability of, this Assignment, or the Assignee's ability
to perform its obligations under this Assignment; and
(e) The Assignee assumes for the benefit of the Trust, all of the
rights of the Purchaser under the Purchase, Warranties and
Servicing Agreement with respect to the Mortgage Loans listed
on EXHIBIT A, other than the right to enforce the obligations
of the Company under the Purchase, Warranties and Servicing
Agreement.
5. The Company warrants and represents to, and covenants with, Assignor
and Assignee as of the date hereof:
(a) Attached hereto as EXHIBIT B is a true and accurate copy of
the Purchase, Warranties and Servicing 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) The 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 Mortgage Loans and to perform its obligations
under the Purchase, Warranties and Servicing Agreement;
(c) The Company has full corporate power and authority to execute,
deliver and perform its obligations under this Assignment, and
to consummate the transactions set forth herein. The
consummation of the transactions contemplated by this
Assignment 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 its charter or by-laws
or any legal restriction, or any material agreement or
instrument to which it 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 and the consummation by it of the
transactions contemplated hereby, have been duly authorized by
all necessary corporate action on the part of the Company.
This Assignment has been duly executed and delivered by the
Company, and, upon the due authorization, execution and
delivery by Assignor and Assignee, will constitute the valid
and legally binding obligation of the Company, enforceable
against it 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;
(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 the
Company of this Assignment, or the consummation by it of the
transactions contemplated hereby; and
(e) The Company shall establish a Custodial Account and an Escrow
Account under the Purchase, Warranties and Servicing Agreement
in favor of Assignee with respect to the Mortgage Loans
separate from the Custodial Account and Escrow Account
previously established under the Purchase, Warranties and
Servicing Agreement in favor of Assignor.
6. The Company hereby acknowledges that ▇▇▇▇▇ Fargo Bank, N.A. (the
"Master Servicer") has been appointed as the master servicer of the Mortgage
Loans pursuant to the Pooling and Servicing Agreement, dated as of December 1,
2005, among Structured Asset Mortgage Investments II Inc., the Assignee, the
Master Servicer, ▇▇▇▇▇ Fargo Bank, N.A. as securities administrator and the
Assignor. The Company shall deliver all reports required to be delivered under
the Purchase, Warranties and Servicing Agreement to:
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Client Manager PRIME 2005-5
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
RECOGNITION OF ASSIGNEE
7. From and after the date hereof the Company shall recognize the
Assignee as owner of the Mortgage Loans, and acknowledges that the Mortgage
Loans will be part of a REMIC. The Company will service the Mortgage Loans in
accordance with the Purchase, Warranties and Servicing Agreement, but in no
event in a manner that would (i) cause the REMIC to fail to qualify as a REMIC
or (ii) result in the imposition of a tax upon the REMIC (including but not
limited to the tax on prohibited transactions as defined in Section 860F(a)(2)
of the Code and the tax on contributions to a REMIC set forth in Section 860G(d)
of the Code). It is the intention of the Assignor, the Company and the Assignee
that this 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, waiver, or otherwise alter any
of the terms or provisions of the Purchase, Warranties and Servicing Agreement,
which amendment, modification, waiver or other alteration would in any way
affect the Mortgage Loans without the prior written consent of the Assignee.
In addition, the Company hereby acknowledges that from and after the
date hereof, the Mortgage Loans will be subject to the terms and conditions of
the Pooling Agreement pursuant to which the Master Servicer is required to
monitor the performance by the Company of its servicing obligations under the
Purchase, Warranties and Servicing Agreement and has the right to enforce the
obligations of the Company under the Purchase Sale and Servicing Agreement with
respect to the servicing of the Mortgage Loans. Such right will include, without
limitation, the right to terminate the Company under the Purchase Agreement upon
the occurrence of an event of default thereunder, the right to receive all
remittances required to be made by the Company under the Purchase Agreement, the
right to receive all monthly reports and other data required to be delivered by
the Company under the Purchase Agreement, the right to examine the books and
records of the Company, 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 to make all remittances
required under the Purchase, Warranties and Servicing Agreement with respect to
the Mortgage Loans to the Master Servicer for the benefit of the Assignee in
accordance with the following wire transfer instructions:
▇▇▇▇▇ Fargo Bank, N.A.,
ABA #▇▇▇▇▇▇▇▇▇
Account Name: SAS Clearing
Account #▇▇▇▇▇▇▇▇▇▇
For Further Credit to: PRIME 2005-5, Account # ▇▇▇▇▇▇▇▇
It is the intention of the Assignor, the Company and the Assignee that
this Agreement will be a separate and distinct servicing agreement between the
Assignee and the Company, to the extent of the Mortgage Loans, and 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
Purchase, Warranties and Servicing Agreement which amendment, modification,
waiver or other alteration would in any way affect the Mortgage Loans without
the prior written consent of the Assignee.
8. MODIFICATION OF THE PURCHASE, WARRANTIES AND SERVICING AGREEMENT :
The Company and the Assignor hereby amend the Purchase, Warranties and
Servicing Agreement as follows:
The following definitions are added to Section 1.01:
ASSIGNEE: U.S. Bank National Association, as trustee for the
holders of Prime Mortgage Trust, Mortgage Pass-Through Certificates,
Series 2005-5.
REMIC PROVISIONS: The provisions of the federal income tax law
relating to REMICs, which appear at Sections 860A through 860G of the
Code, and related provisions and regulations promulgated thereunder, as
the foregoing may be in effect from time to time.
MASTER SERVICER: ▇▇▇▇▇ Fargo Bank, N.A.
TRUSTEE:U.S. Bank National Association.
The definition of "Business Day" is deleted in its entirety and
replaced with the following definition:
BUSINESS DAY: Any day other than: (i) a Saturday or Sunday, or
(ii) a legal holiday in the States of Maryland, Minnesota, New York or
Ohio, or (iii) a day on which banks in the States of Maryland,
Minnesota, New York or Ohio are authorized or obligated by law or
executive order to be closed.
The definition of Eligible Account is deleted in its entirety and replaced with
the following:
ELIGIBLE ACCOUNT: Any of (i) an account or accounts maintained
with a federal or state chartered depository institution or trust
company, the long-term unsecured debt obligations and short-term
unsecured debt obligations of which (or, in the case of a depository
institution or trust company that is the principal subsidiary of a
holding company, the debt obligations of such holding company, so long
as ▇▇▇▇▇'▇ is not a Rating Agency) are rated by each Rating Agency in
one of its two highest long-term and its highest short-term rating
categories respectively, at the time any amounts are held on deposit
therein, or (ii) an account or accounts in a depository institution or
trust company in which such accounts are insured by the FDIC (to the
limits established by the FDIC) and the uninsured deposits in which
accounts are otherwise secured such that, as evidenced by an Opinion of
Counsel delivered to the Trustee and to each Rating Agency, the
Certificateholders have a claim with respect to the funds in such
account or a perfected first priority security interest against any
collateral (which shall be limited to Permitted Investments) securing
such funds that is superior to claims of any other depositors or
creditors of the depository institution or trust company in which such
account is maintained, or (iii) a trust account or accounts maintained
with the corporate trust department of a federal or state chartered
depository institution or trust company having capital and surplus of
not less than $50,000,000, acting in its fiduciary capacity or (iv) any
other account acceptable to the Rating Agencies. Eligible Accounts may
bear interest, and may include, if otherwise qualified under this
definition, accounts maintained with the Trustee.
The following sentence shall be added to the end of the first paragraph of
Section 5.02 of the Purchase, Warranties and Servicing Agreement:
In addition, not later than seven (7) Business Days after each month end,
Seller shall furnish to the Master Servicer a report in the form of Exhibit C to
the Assignment, Assumption and Recognition Agreement, dated as of December 29,
2005, among Seller, EMC Mortgage Corporation and U.S. Bank National Association
with respect to defaulted Mortgage Loans and a report in the form of Exhibit D
to the Assignment, Assumption and Recognition Agreement, dated as of December
29, 2005, among Seller, EMC Mortgage Corporation and U.S. Bank National
Association with respect to realized loss calculations.
Section 6.04 of the Purchase, Warranties and Servicing Agreement shall
be deleted in its entirety and replaced with the following:
Section 6.04 ANNUAL STATEMENT AS TO COMPLIANCE.
The Company will deliver to the Master Servicer on or before February
28 of each year, beginning with February 28, 2006, an Officer's Certificate
(each, an "Annual Statement of Compliance") in a form acceptable for filing with
the Securities and Exchange Commission as an exhibit to a Form 10-K stating that
(i) a review of the activities of the Company during the preceding calendar year
and of performance under this Agreement has been made under such officer's
supervision, (ii) the Company has fully complied with the provisions of this
Agreement and (iii) to the best of such officer's knowledge, based on such
review, the Company has fulfilled all of its obligations under this Agreement
throughout such year, or, if there has been a default in the fulfillment of any
such obligation, specifying each such default known to such officer and the
nature and status thereof.
Section 6.05 of the Purchase, Warranties and Servicing Agreement shall
be deleted in its entirety and replaced with the following:
Section 6.05 ANNUAL INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS' SERVICING
REPORT.
On or before February 28 of each year beginning February 28, 2006, the
Company at its expense shall cause a firm of independent public accountants
which is a member of the American Institute of Certified Public Accountants to
furnish a statement (each, an "Annual Independent Public Accountant's Servicing
Report") to the Master Servicer in a form acceptable for filing with the
Securities and Exchange Commission as an exhibit to a Form 10-K to the effect
that such firm has examined certain documents and records relating to the
servicing of mortgage loans by the Company generally that include a sampling of
the Mortgage Loans, the provisions of Article IV and Sections 6.01 and 6.02 have
been complied with and, on the basis of such an examination conducted
substantially in accordance with the Uniform Single Attestation Program for
Mortgage Bankers, such servicing has been conducted in compliance with this
Agreement, 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 following Section 6.07 shall be added to the end of Article 6:
Section 6.07 ANNUAL CERTIFICATION.
(a) For so long as the Mortgage Loans are being master serviced by the
Master Servicer, by February 28th of each year (or if not a Business Day, the
immediately preceding Business Day), or at any other time upon thirty (30) days
written request, an officer of the Company shall execute and deliver an
Officer's Certificate to the Master Servicer for the benefit of such Master
Servicer and its officers, directors and affiliates, certifying as to the
following matters:
(i) Based on my knowledge, the information in the Annual Statement of
Compliance, the Annual Independent Public Accountant's Servicing Report and all
servicing reports, officer's certificates and other information relating to the
servicing of the Mortgage Loans submitted to the Master Servicer 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 light of the
circumstances under which such statements were made, not misleading as of the
date of this certification;
(ii) The servicing information required to be provided to the Master
Servicer by the Company under this Agreement has been provided to the Master
Servicer;
(iii) I am responsible for reviewing the activities performed by the
Company under the Agreement and based upon the review required by this
Agreement, and except as disclosed in the Annual Statement of Compliance or the
Annual Independent Public Accountant's Servicing Report submitted to the Master
Servicer, the Company has, as of the date of this certification fulfilled all
its obligations under this Agreement; and
(iv) I have disclosed to the Master Servicer all significant
deficiencies relating to the Company'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 Agreement.
(b) The Company shall indemnify and hold harmless the Master Servicer
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 Company or any of its officers, directors, agents or affiliates of its
obligations under this Subsection 6.07 or the negligence, bad faith or willful
misconduct of the Company in connection therewith. If the indemnification
provided for herein is unavailable or insufficient to hold harmless the Master
Servicer, then the Company agrees that it shall contribute to the amount paid or
payable by the Master Servicer as a result of the losses, claims, damages or
liabilities of the Master Servicer in such proportion as is appropriate to
reflect the relative fault of the Master Servicer on the one hand and the
Company on the other in connection with a breach of the Company's obligations
under this Subsection 6.07 or the Company's negligence, bad faith or willful
misconduct in connection therewith.
Section 9.01 of the Purchase, Warranties and Servicing Agreement is
hereby amended by adding the word "or" at the end of clause (ix) thereof and
inserting the following as clause (x):
(x) failure by the Company to duly 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 any party to this Agreement or by any master servicer
responsible for master servicing the Mortgage Loans pursuant to a securitization
of such Mortgage Loans.
The following shall be added as Section 11.19 of the Purchase,
Warranties and Servicing Agreement:
Section 11.19 THIRD PARTY BENEFICIARY.
For purposes of this Agreement, any Master Servicer shall be considered
a third party beneficiary to this Agreement entitled to all the rights and
benefits accruing to any Master Servicer herein as if it were a direct party to
this Agreement.
9. Notice Addresses.
If to the Assignee:
U.S. Bank National Association, as Trustee
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Services, PRIME 2005-5
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Assignor:
EMC Mortgage Corporation
MacArthur Ridge II
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Bear ▇▇▇▇▇▇▇ Mortgage Capital Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Company:
Fifth Third Mortgage Company
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention:▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Securities Administrator:
▇▇▇▇▇ Fargo Bank, N.A.
▇.▇. ▇▇▇ ▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
or, if by overnight delivery to:
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Client Manager PRIME 2005-5
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
10. This Assignment 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.
11. From and after the date hereof, the Company, as servicer shall
recognize the Assignee as the owner of the Mortgage Loans, the Company will
service the Mortgage Loans in accordance with the Purchase, Warranties and
Servicing for the benefit of the Assignee, and shall look solely to the Assignee
for performance of the obligations of Purchaser under the Purchase, Warranties
and Servicing Agreement with respect to the Mortgage Loans. From and after the
date hereof, the Assignee shall recognize the Company as the seller and servicer
of the Mortgage Loans, and shall look solely to the Company for performance of
the obligations of the Seller under the Purchase, Warranties and Servicing
Agreement with respect to the Mortgage Loans.
12. This Assignment shall inure to the benefit of the successors and
assigns of the parties hereto. Any entity into which the Company, the Assignor
or the Assignee may be merged or consolidated shall, without the requirement for
any further writing, be deemed the Company, the Assignor or the Assignee,
respectively, hereunder.
13. No term or provision of this Assignment may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced.
14. This Assignment shall survive the conveyance of the Mortgage Loans
and the assignment of the Purchase, Warranties and Servicing Agreement to the
extent of the Mortgage Loans by the Assignor to the Assignee and the termination
of the Purchase, Warranties and Servicing Agreement .
15. This Assignment may be executed simultaneously in any number of
counterparts, each of which counterparts shall be deemed to be an original, and
such counterparts shall constitute and be one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Assignment, Assumption
and Recognition Agreement to be executed by their duly authorized officers as of
the date first above written.
EMC MORTAGE CORPORATION U.S. BANK NATIONAL ASSOCIATION, THE
THE ASSIGNOR TRUSTEE FOR THE HOLDERS OF PRIME
MORTGAGE TRUST, MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES
2005-5 THE ASSIGNEE
By: By:
----------------------------------- --------------------------------
Name: Name:
--------------------------------- ------------------------------
Title: Title:
-------------------------------- -----------------------------
FIFTH THIRD MORTGAGE COMPANY
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
ACKNOWLEDGED AND AGREED
▇▇▇▇▇ FARGO BANK, N.A.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
EXHIBIT A:
Mortgage Loan Schedule
EXHIBIT B:
Purchase, Warranties and Servicing Agreement , dated as of September 1, 2002;
EXHIBIT C:
EXHIBIT : 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
MM/DD/YYYY is due to the servicer at the
end of processing cycle, as reported by
Servicer.
-------------------------------------------------------------------------------------------------------------------
LOAN_TYPE Loan Type (i.e. FHA, VA, Conv)
-------------------------------------------------------------------------------------------------------------------
BANKRUPTCY_FILED_DATE The date a particular bankruptcy claim was MM/DD/YYYY
filed.
-------------------------------------------------------------------------------------------------------------------
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 MM/DD/YYYY
has been approved by the courts
-------------------------------------------------------------------------------------------------------------------
BANKRUPTCY_DCHRG_DISM_DATE The Date The Loan Is Removed From MM/DD/YYYY
Bankruptcy. Either by Dismissal, Discharged
and/or a Motion For Relief Was Granted.
-------------------------------------------------------------------------------------------------------------------
LOSS_MIT_APPR_DATE The Date The Loss Mitigation Was Approved MM/DD/YYYY
By The Servicer
-------------------------------------------------------------------------------------------------------------------
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 MM/DD/YYYY
Scheduled To End/Close
-------------------------------------------------------------------------------------------------------------------
LOSS_MIT_ACT_COMP_DATE The Date The Loss Mitigation Is Actually MM/DD/YYYY
Completed
-------------------------------------------------------------------------------------------------------------------
FRCLSR_APPROVED_DATE The date DA Admin sends a letter to the
MM/DD/YYYY servicer with instructions to
begin foreclosure proceedings.
-------------------------------------------------------------------------------------------------------------------
ATTORNEY_REFERRAL_DATE Date File Was Referred To Attorney to MM/DD/YYYY
Pursue Foreclosure
-------------------------------------------------------------------------------------------------------------------
FIRST_LEGAL_DATE Notice of 1st legal filed by an Attorney MM/DD/YYYY
in a Foreclosure Action
-------------------------------------------------------------------------------------------------------------------
FRCLSR_SALE_EXPECTED_DATE The date by which a foreclosure sale is MM/DD/YYYY
expected to occur.
-------------------------------------------------------------------------------------------------------------------
FRCLSR_SALE_DATE The actual date of the foreclosure sale. MM/DD/YYYY
-------------------------------------------------------------------------------------------------------------------
FRCLSR_SALE_AMT The amount a property sold for at the 2 No commas(,) or
foreclosure sale. dollar signs ($)
-------------------------------------------------------------------------------------------------------------------
EVICTION_START_DATE The date the servicer initiates eviction of MM/DD/YYYY
the borrower.
-------------------------------------------------------------------------------------------------------------------
EVICTION_COMPLETED_DATE The date the court revokes legal possession
MM/DD/YYYY of the property from the
borrower.
-------------------------------------------------------------------------------------------------------------------
LIST_PRICE The price at which an REO property is 2 No commas(,) or
marketed. dollar signs ($)
-------------------------------------------------------------------------------------------------------------------
LIST_DATE The date an REO property is listed at a MM/DD/YYYY
particular price.
-------------------------------------------------------------------------------------------------------------------
OFFER_AMT The dollar value of an offer for an REO 2 No commas(,) or
property. dollar signs ($)
-------------------------------------------------------------------------------------------------------------------
OFFER_DATE_TIME The date an offer is received by DA Admin MM/DD/YYYY
or by the Servicer.
-------------------------------------------------------------------------------------------------------------------
REO_CLOSING_DATE The date the REO sale of the property is MM/DD/YYYY
scheduled to close.
-------------------------------------------------------------------------------------------------------------------
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 MM/DD/YYYY
performed.
-------------------------------------------------------------------------------------------------------------------
APPRAISAL_DATE The date the appraisal was done. MM/DD/YYYY
-------------------------------------------------------------------------------------------------------------------
CURR_PROP_VAL The current "as is" value of the property 2
based on brokers price opinion or appraisal.
-------------------------------------------------------------------------------------------------------------------
REPAIRED_PROP_VAL The amount the property would be worth if 2
repairs are completed pursuant to a
broker's price opinion or appraisal.
-------------------------------------------------------------------------------------------------------------------
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 MM/DD/YYYY
With Mortgage Insurance Company.
-------------------------------------------------------------------------------------------------------------------
MI_CLAIM_AMT Amount of Mortgage Insurance Claim Filed No commas(,)
or dollar signs
($)
-------------------------------------------------------------------------------------------------------------------
MI_CLAIM_PAID_DATE Date Mortgage Insurance Company Disbursed MM/DD/YYYY
Claim Payment
-------------------------------------------------------------------------------------------------------------------
MI_CLAIM_AMT_PAID Amount Mortgage Insurance Company Paid On 2 No commas(,) or
Claim dollar signs ($)
-------------------------------------------------------------------------------------------------------------------
POOL_CLAIM_FILED_DATE Date Claim Was Filed With Pool Insurance MM/DD/YYYY
Company
-------------------------------------------------------------------------------------------------------------------
POOL_CLAIM_AMT Amount of Claim Filed With Pool Insurance 2 No commas(,) or
Company dollar signs ($)
-------------------------------------------------------------------------------------------------------------------
POOL_CLAIM_PAID_DATE Date Claim Was Settled and The Check Was MM/DD/YYYY
Issued By The Pool Insurer
-------------------------------------------------------------------------------------------------------------------
POOL_CLAIM_AMT_PAID Amount Paid On Claim By Pool Insurance 2 No commas(,) or
Company dollar signs ($)
-------------------------------------------------------------------------------------------------------------------
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 ($)
-------------------------------------------------------------------------------------------------------------------
FHA_PART_B_CLAIM_PAID_DATE Date HUD Disbursed Part B Claim Payment MM/DD/YYYY
-------------------------------------------------------------------------------------------------------------------
FHA_PART_B_CLAIM_PAID_AMT Amount HUD Paid on Part B Claim 2 No commas(,) or
dollar signs ($)
-------------------------------------------------------------------------------------------------------------------
VA_CLAIM_FILED_DATE Date VA Claim Was Filed With the Veterans MM/DD/YYYY
Admin
-------------------------------------------------------------------------------------------------------------------
VA_CLAIM_PAID_DATE Date Veterans Admin. Disbursed VA Claim MM/DD/YYYY
Payment
-------------------------------------------------------------------------------------------------------------------
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
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
--------------------------------------------------------------------------------
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
-------------------------------------------------------------------------------
EXHIBIT D:
EXHIBIT : 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.
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.
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 ( ).
EXHIBIT 3A: 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)
----------------------------------------------------------------------------------------------------------------------
TYPE DATE PAID PERIOD OF TOTAL PAID BASE AMOUNT PENALTIES INTEREST
(TAX /INS.) COVERAGE
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
GMAC MORTGAGE CORPORATION
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
This Assignment, Assumption and Recognition Agreement (the "AAR
Agreement") is made and entered into as of December 29, 2005 (the "Closing
Date"), among EMC Mortgage Corporation (the "Assignor"), U.S. Bank National
Association, not individually but solely as trustee for the holders of Prime
Mortgage Trust, Mortgage Pass-Through Certificates, Series 2005-5 (the
"Assignee") and GMAC Mortgage Corporation (the "Company").
Whereas, the Company sold the mortgage loans identified on ATTACHMENT 1
hereto (the "SAMI Mortgage Loans"), on a servicing retained basis, to the
Assignor pursuant to various mortgage loan sale and servicing agreements
(together, the "Former Servicing Agreements"); and
Whereas, the SAMI Mortgage Loans and the Former Servicing Agreements
were subsequently transferred to the Structured Asset Mortgage Investments Inc.,
Mortgage Pass-Through Certificates, Series 1999-1 and the Structured Asset
Mortgage Investments Inc., Mortgage Pass-Through Certificates, Series 2001-3
(the "Underlying SAMI Trusts") in connection with two securitizations;
Whereas, pursuant to Article IX of that certain Pooling and Servicing
Agreement, dated as of February 1, 1999 among Structured Asset Mortgage
Investments Inc. as seller, the Company and ▇▇▇▇▇ Fargo Bank, N.A. (as successor
to Norwest Bank Minnesota, National Association) as trustee, and pursuant to
Article X of that certain Pooling and Servicing Agreement, dated as of January
1, 2001 among Structured Asset Mortgage Investments Inc. as seller, the Company
and ▇▇▇▇▇ Fargo Bank, N.A. as trustee (the "Underlying SAMI Pooling
Agreements"), the Assignor had the right to purchase the SAMI Mortgage Loans
(the "SAMI Call Right") from the respective Underlying SAMI Trusts following the
occurrence of certain trigger events (the "SAMI Trigger Events") set forth in
the respective Underlying SAMI Pooling Agreements; and
Whereas, following the occurrence of the respective SAMI Trigger
Events, the Assignor exercised the respective SAMI Call Right and purchased the
respective SAMI Mortgage Loans from the respective Underlying SAMI Trusts.
Whereas, Impac Funding Corporation ("Impac") acquired the mortgage
loans identified on ATTACHMENT 2 hereto (the "Impac Mortgage Loans") from
various third party originators;
Whereas, the Impac Mortgage Loans were subsequently transferred to
various trusts (the "Underlying Impac Trusts") in connection with various
securitizations; and
Whereas, Impac owned the servicing rights with respect to the Impac
Mortgage Loans and acted as the master servicer for the Underlying Impac Trusts;
and
Whereas, the Company and Impac entered into a subservicing agreement
pursuant to which the Company acted as subservicer for Impac for the benefit of
the Underlying Impac Trusts; and
Whereas, pursuant to the Pooling and Servicing Agreements for the
Underlying Impac Trusts (the "Underlying Impac Pooling Agreements"), the
Assignor had the right to purchase the Impac Mortgage Loans (the "Impac Call
Right") from the Underlying Impac Trusts following the occurrence of certain
trigger events (the "Impac Trigger Events") set forth in the Underlying Impac
Pooling Agreements; and
Whereas, following the occurrence of the Impac Trigger Events, the
Assignor exercised the related Impac Call Right and purchased the Impac Mortgage
Loans from the Underlying Impac Trusts; and
Whereas, Impac sold the servicing rights with respect to the Impac
Mortgage Loans to the Company and the Company is currently servicing the Impac
Mortgage Loans for the benefit of the Assignor; and
Whereas, Assignor and Company desire that, from and after the date
hereof, all of the SAMI Mortgage Loans and the Impac Mortgage Loans
(collectively, the "Assigned Loans") be serviced in accordance with the terms
and conditions of that certain Servicing Agreement, dated as of November 1,
2004, as modified herein (as modified, the "Servicing Agreement") between
Structured Asset Mortgage Investments II Inc. (the "Depositor") and Company.
In consideration of the mutual promises and agreements contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree that the
Assigned Loans shall be subject to the terms of this AAR Agreement. Any
capitalized term used and not otherwise defined herein shall have the meaning
assigned to such term in the Servicing Agreement.
RECOGNITION OF THE ASSIGNOR
1. Company recognizes Assignor as owner of the Assigned Loans and
acknowledges that it is currently servicing the Assigned Loans
for the benefit of Assignor. From and after the date hereof,
Company agrees that it will service the Assigned Loans
pursuant to the terms of the Servicing Agreement (as modified
herein) which terms are incorporated herein by reference.
ASSIGNMENT AND ASSUMPTION
2. Except as expressly provided for herein, the Assignor hereby
grants, transfers and assigns to the Assignee all of its
right, title and interest in, to and under (a) the Assigned
Loans and (b) as it relates to the Assigned Loans, the
Servicing Agreement. Notwithstanding anything to the contrary
contained herein, the Assignor is not assigning to the
Assignee any of its right, title and interest in, to and under
the Servicing Agreement with respect to any other mortgage
loan other than the Assigned Loans. Except as is otherwise
expressly provided herein, the Assignor makes no
representations, warranties or covenants to the Assignee and
the Assignee acknowledges that the Assignor has no obligations
to the Assignee under the terms of the Servicing Agreement or
otherwise relating to the transaction contemplated herein
(including, but not limited to, any obligation to indemnify
the Assignee).
Assignor acknowledges and agrees that upon execution of this AAR
Agreement, the Assignee shall become the "Owner" under the Servicing Agreement,
and all representations, warranties and covenants by the "Company" to the
"Owner" under the Servicing Agreement including, but not limited to, the rights
to receive indemnification, shall accrue to Assignee by virtue of this AAR
Agreement.
REPRESENTATIONS, WARRANTIES AND COVENANTS
3. Assignor warrants and represents to, and covenants with,
Assignee and Company as of the date hereof that:
a. Attached hereto as ATTACHMENT 3 is a true and correct
copy of the Servicing Agreement, which Servicing
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. 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 Servicing 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 Servicing
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 the Company with respect to the Assigned
Loans or the Servicing 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 AAR Agreement, and to consummate the
transactions set forth herein. The consummation of
the transactions contemplated by this AAR Agreement
is in the ordinary course of 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 AAR 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 AAR
Agreement has been duly executed and delivered by
Assignor and, upon the due authorization, execution
and delivery by Assignee and the parties hereto, 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; and
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 AAR
Agreement, or the consummation by it of the
transactions contemplated hereby. 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.
4. The Assignee warrants and represents to, and covenants with,
the Assignor and the Company as of the date hereof that:
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 hold the Assigned Loans as trustee on
behalf of the holders of Prime Mortgage Trust,
Mortgage Pass-Through Certificates, Series 2005-5;
b. Assignee has full corporate power and authority to
execute, deliver and perform under this AAR
Agreement, and to consummate the transactions set
forth herein. The consummation of the transactions
contemplated by this AAR Agreement is in the ordinary
course of 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 AAR 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 AAR
Agreement has been duly executed and delivered by
Assignee and, upon the due authorization, execution
and delivery by Assignor and the parties hereto, 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 AAR
Agreement, or the consummation by it of the
transactions contemplated hereby; and
d. The Assignee assumes all of the rights of the Owner
under the Servicing Agreement with respect to the
Assigned Loans other than the right to enforce the
obligations of the Servicer under the Servicing
Agreement.
e. Company warrants and represents to, and covenants
with, Assignee and Assignor, as of the date hereof,
that:
f. Attached hereto as ATTACHMENT 3 is a true and correct
copy of the Servicing 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;
g. 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 Servicing
Agreement;
h. Company has full corporate power and authority to
execute, deliver and perform its obligations under
this AAR Agreement, and to consummate the
transactions set forth herein. The consummation of
the transactions contemplated by this AAR Agreement
is in the ordinary course of 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 AAR 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 AAR 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;
i. No consent, approval, order or authorization of, or
declaration, filing or registration with, any
governmental entity is required to be obtained or
made by Company in connection with the execution,
delivery or performance by Company of this AAR
Agreement, or the consummation by it of the
transactions contemplated hereby;
j. Company shall establish a Custodial Account and an
Escrow Account under the Servicing Agreement in favor
of Assignee with respect to the Assigned Loans
separate from the Custodial Account and Escrow
Account previously established in favor of Assignor;
and
k. Neither this AAR Agreement nor any certification,
statement, report or other agreement, document or
instrument furnished or to be furnished by the
Company pursuant to this AAR Agreement contains or
will contain any materially untrue statement of fact
or omits or will omit to state a fact necessary to
make the statements contained therein not misleading.
6. Assignor hereby agrees to indemnify and hold the Assignee (and
its successors and assigns) harmless against any and all
claims, losses, penalties, fines, forfeitures, legal fees and
related costs, judgments, and any other costs, fees and
expenses that Assignee (and its successors and assigns) may
sustain in any way related to any breach of the
representations or warranties of Assignor set forth in this
AAR Agreement or the breach of any covenant or condition
contained herein.
7. Notwithstanding any term hereof to the contrary, the execution
and delivery of this AAR Agreement by the Assignee is solely
in its capacity as trustee for Prime Mortgage Trust, Mortgage
Pass-Through Certificates, Series 2005-5 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
AAR Agreement shall be limited solely to the assets it may
hold as trustee of Prime Mortgage Trust, Mortgage Pass-Through
Certificates, Series 2005-5.
RECOGNITION OF ASSIGNEE
8. From and after the date hereof, Company shall recognize
Assignee as owner of the Assigned Loans, and acknowledges that
the Assigned Loans will be part of a REMIC, and will service
the Assigned Loans in accordance with the Servicing Agreement
but in no event in a manner that would (i) cause any REMIC to
fail to qualify as a REMIC or (ii) 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). It is the intention of Assignor,
Company and Assignee that this AAR 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, waive, or otherwise
alter any of the terms or provisions of the Servicing
Agreement which amendment, modification, waiver or other
alteration would in any way affect the Assigned Loans without
the prior written consent of Assignee.
MODIFICATION OF THE SERVICING AGREEMENT
9. The Company, Assignor and Assignee hereby amend the Servicing
Agreement, with respect to the Assigned Loans only, as
follows:
(a) The definition of "Principal Prepayment" in Article I of the
Servicing Agreement is deleted in its entirety and replaced 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, 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."
(b) The first sentence of the last paragraph of Section 4.04 of the
Servicing Agreement is deleted in its entirety and replaced with the following:
"The foregoing requirements for deposit in the Custodial
Account shall be exclusive, it being understood and agreed that,
without limiting the generality of the foregoing, payments in the
nature of late payment charges, prepayment penalties and assumption
fees, to the extent permitted by Section 6.01, need not be deposited by
the Servicer in the Custodial Account."
MISCELLANEOUS
10. All demands, notices and communications related to the
Assigned Loans, the Servicing Agreement and this AAR 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,
GMAC Mortgage Corporation ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇ Telecopier No.: (215)
682-3396
b. In the case of Assignor,
EMC Mortgage Corporation Mac
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
c. In the case of Assignee,
U.S. Bank National Association, as Trustee ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Services, PRIME 2005-5
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
11. The Company hereby acknowledges that ▇▇▇▇▇ Fargo Bank, N.A.
(the "Master Servicer") has been appointed as the master
servicer of the Assigned Loans pursuant to the Pooling and
Servicing Agreement, dated as of December 1, 2005, among the
Assignor, the Assignee, Structured Asset Mortgage Investments
II Inc., ▇▇▇▇▇ Fargo Bank, N.A. as securities administrator
and the Master Servicer, and therefor has the right to enforce
all obligations of the Company, as they relate to the Assigned
Loans, under the Servicing Agreement. Such right will include,
without limitation, the right to terminate the Company under
the Servicing Agreement upon the occurrence of an event of
default thereunder, the right to receive all remittances
required to be made by the Company under the Servicing
Agreement, the right to receive all monthly reports and other
data required to be delivered by the Company under the
Servicing Agreement, the right to examine the books and
records of the Company, indemnification rights, and the right
to exercise certain rights of consent and approval relating to
actions taken by the Company. The Company shall make all
distributions under the Servicing Agreement, as they relate to
the Assigned Loans, to the Master Servicer by wire transfer of
immediately available funds to:
Bear ▇▇▇▇▇▇▇ PRIME 2005-5 Master Servicer Collection Account
▇▇▇▇▇ Fargo Bank, N.A
ABA# ▇▇▇▇▇▇▇▇▇
Account Name: SAS Clearing
Account # ▇▇▇▇▇▇▇▇▇▇
For Further Credit to: PRIME 2005-5, Account # ▇▇▇▇▇▇▇▇
and the Company shall deliver all reports required to be
delivered under the Servicing Agreement, as they relate to the
Assigned Loans, to the Assignee at the address set forth in
Section 10 herein and to the Master Servicer at:
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Client Manager PRIME 2005-5
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
12. THIS AAR 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.
13. No term or provision of this AAR Agreement may be waived or
modified unless such waiver or modification is in writing and
signed by the party against whom such waiver or modification
is sought to be enforced.
14. This AAR 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.
15. This AAR Agreement shall survive the conveyance of the
Assigned Loans, the assignment of the Servicing Agreement to
the extent of the Assigned Loans by Assignor to Assignee and
the termination of the Servicing Agreement.
16. This AAR Agreement may be executed simultaneously in any
number of counterparts. Each counterpart shall be deemed to be
an original and all such counterparts shall constitute one and
the same instrument.
17. In the event that any provision of this AAR Agreement
conflicts with any provision of the Servicing Agreement with
respect to the Assigned Loans, the terms of this AAR Agreement
shall control.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above written.
EMC MORTGAGE CORPORATION, U.S. BANK NATIONAL ASSOCIATION, NOT
THE ASSIGNOR INDIVIDUALLY BUT SOLELY AS TRUSTEE
FOR THE HOLDERS OF PRIME MORTGAGE
TRUST, MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2005-5, THE
ASSIGNEE
By: By:
----------------------------------- --------------------------------
Name: Name:
--------------------------------- ------------------------------
Title: Title:
-------------------------------- -----------------------------
GMAC MORTGAGE CORPORATION,
THE COMPANY
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
ACKNOWLEDGED AND AGREED
▇▇▇▇▇ FARGO BANK, N.A.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
ATTACHMENT 1
SAMI MORTGAGE LOANS
ATTACHMENT 2
IMPAC MORTGAGE LOANS
ATTACHMENT 3
SERVICING AGREEMENT
GREENPOINT MORTGAGE FUNDING, INC.
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
This is an Assignment, Assumption and Recognition Agreement (this "AAR
Agreement") made as of December 29, 2005, among EMC Mortgage Corporation (the
"Assignor"), U.S. Bank National Association, not individually but solely as
trustee for the holders of the Prime Mortgage Trust, Mortgage Pass-Through
Certificates, Series 2005-5 (the "Assignee") and GreenPoint Mortgage Funding,
Inc. (the "Company").
WHEREAS, The Trust Company of New Jersey originated the
mortgage loans identified on Exhibit A hereto (the "Assigned Loans"); and
WHEREAS, the Assigned Loans were subsequently transferred to a
trust (the "Underlying Trusts") in connection with a securitization; and
WHEREAS, pursuant to the Pooling and Servicing Agreement for
the Underlying Trust (the "Underlying Pooling Agreement"), the Assignor had the
right to purchase the Assigned Loans (the "Call Right") from the Underlying
Trust following the occurrence of certain trigger events (the "Trigger Events")
set forth in the Underlying Pooling Agreement; and
WHEREAS, following the occurrence of the Trigger Events, the
Assignor exercised the Call Right and purchased the Assigned Loans from the
Underlying Trust; and
WHEREAS, the servicing of the Assigned Loans was transferred
from North Fork Bancorporation, Inc., as successor to The Trust Company of New
Jersey, to the Company; and
WHEREAS, Assignor and Company desire that, from and after the
date hereof, all of the Assigned Loans be serviced in accordance with the terms
and conditions of that certain Purchase, Warranties and Servicing Agreement,
dated as of September 1, 2003 (the "Purchase Agreement"), between the Assignor
and the Company.
NOW, THEREFORE, in consideration of the mutual promises and
agreements contained herein, and for good and valuable consideration, the
receipt and sufficiency of which hereby are acknowledged, and of the mutual
covenants herein contained, the parties hereto hereby agree that the Assigned
Loans shall be subject to the terms of this AAR Agreement. Defined terms used in
this Assignment and not otherwise defined herein shall have the meaning set
forth in the Purchase Agreement.
RECOGNITION OF THE ASSIGNOR
Company recognizes Assignor as owner of the Assigned Loans and
acknowledges that it is currently servicing the Assigned Loans for the benefit
of Assignor. From and after the date hereof, Company agrees it will service the
Assigned Loans pursuant to the terms of the Purchase Agreement (as modified
herein) which terms are incorporated herein by reference.
Assignment and Assumption
Except as expressly provided for herein, the Assignor hereby grants,
transfers and assigns to the Assignee all of its right, title and interest as
in, to and under (a) the Assigned Loans and (b) the Purchase Agreement with
respect to the Assigned Loans; provided, however, that the Assignor is not
assigning to the Assignee any of its right, title or interest, in, to and under
the Purchase Agreement with respect to any mortgage loan other than the Assigned
Loans listed on Exhibit A. Except as is otherwise expressly provided herein, the
Assignor makes no representations, warranties or covenants to the Assignee and
the Assignee acknowledges that the Assignor has no obligations to the Assignee
under the terms of the Purchase Agreement or otherwise relating to the
transaction contemplated herein (including, but not limited to, any obligation
to indemnify the Assignee).
REPRESENTATIONS, WARRANTIES AND COVENANTS
(a) Assignor warrants and represents to Assignee and Company as of the
date hereof:
(i) 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;
(ii) 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;
(iii) There are no offsets, counterclaims or other defenses available
to Company with respect to the Assigned Loans or the Purchase Agreement;
(iv) Assignor has no knowledge of, and has not received notice of, any
waivers under, or any modification of, any Assigned Loan;
(v) 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;
(vi) Assignor has full corporate power and authority to execute,
deliver and perform its obligations under this AAR Agreement, and to consummate
the transactions set forth herein. The consummation of the transactions
contemplated by this AAR Agreement is in the ordinary course of 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 AAR
Agreement and the consummation by it of the transactions contemplated hereby,
have been duly authorized by all necessary corporate action on the part of
Assignor. This AAR 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;
(vii) 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 AAR Agreement, or the consummation by it of the transactions
contemplated hereby;
(viii) 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;
(ix) The Assignor has received from Company, and has delivered to the
Assignee, all documents required to be delivered to Assignor by the Company
prior to the date hereof pursuant to the Purchase Agreement with respect to the
Assigned Loans and has not received, and has not requested from the Company, any
additional documents; and
(x) There is no action, suit, proceeding, investigation or litigation
pending or, to Assignor's knowledge, threatened, which either in any instance or
in the aggregate, if determined adversely to Assignor, would adversely affect
Assignor's execution or delivery of, or the enforceability of, this AAR
Agreement, or the Assignor's ability to perform its obligations under this AAR
Agreement.
(b) Assignee warrants and represents to, and covenants with, Assignor
and Company as of the date hereof:
(i) 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 hold the Assigned Loans as trustee on behalf of the
holders of the Prime Mortgage Trust 2005-5, Mortgage Pass-Through Certificates,
Series 2005-5;
(ii) Assignee has full corporate power and authority to execute,
deliver and perform its obligations under this AAR Agreement, and to consummate
the transactions set forth herein. The consummation of the transactions
contemplated by this AAR Agreement is in the ordinary course of 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 AAR
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 AAR 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;
(iii) 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 AAR Agreement, or the consummation by it of the transactions
contemplated hereby;
(iv) There is no action, suit, proceeding, investigation or litigation
pending or, to Assignee's knowledge, threatened, which either in any instance or
in the aggregate, if determined adversely to Assignee, would adversely affect
Assignee's execution or delivery of, or the enforceability of, this AAR
Agreement, or the Assignee's ability to perform its obligations under this AAR
Agreement; and
(v) Assignee assumes for the benefit of each of the Assignor and the
Company all of the rights of the Purchaser under the Purchase Agreement with
respect to the Assigned Loans.
(c) Company warrants and represents to, and covenant with, Assignor and
Assignee as of the date hereof:
(i) 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;
(ii) 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;
(iii) Company has full corporate power and authority to execute,
deliver and perform its obligations under this AAR Agreement, and to consummate
the transactions set forth herein. The consummation of the transactions
contemplated by this AAR Agreement is in the ordinary course of 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 AAR
Agreement and the consummation by it of the transactions contemplated hereby,
have been duly authorized by all necessary corporate action on the part of
Company. This AAR 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;
(iv) No consent, approval, order or authorization of, or declaration,
filing or registration with, any governmental entity is required to be obtained
or made by Company in connection with the execution, delivery or performance by
Company of this AAR Agreement, or the consummation by it of the transactions
contemplated hereby;
(v) The Company shall establish a Custodial Account and an Escrow
Account under the Purchase Agreement in favor of the Assignee with respect to
the Assigned Loans separate from the Custodial Account and Escrow Account
previously established under the Purchase Agreement in favor of Assignor; and
(vi) Neither this AAR Agreement nor any certification, statement,
report or other agreement, document or instrument furnished or to be furnished
by the Company pursuant to this AAR Agreement contains or will contain any
materially untrue statement of fact or omits or will omit to state a material
fact necessary to make the statements contained therein not misleading.
(d) Assignor hereby agrees to indemnify and hold the Assignee (and its
successors and assigns) harmless against any and all claims, losses, penalties,
fines, forfeitures, legal fees and related costs, judgments, and any other
costs, fees and expenses that Assignee (and its successors and assigns) may
sustain in any way related to any breach of the representations or warranties of
Assignor set forth in this AAR Agreement or the breach of any covenant or
condition contained herein.
Recognition of Assignee
(a) From and after the date hereof, Company shall recognize Assignee as
owner of the Assigned Loans, and acknowledges that the Assigned Loans will be
part of a REMIC, and will service the Assigned Loans in accordance with the
Purchase Agreement (as modified by this AAR Agreement) but in no event in a
manner that would (i) cause any REMIC to fail to qualify as a REMIC or (ii)
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). It is the intention of Assignor, Company and Assignee that this AAR
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, waive, 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.
(b) Notwithstanding any term hereof to the contrary, the execution and
delivery of the AAR Agreement by the Assignee is solely in its capacity as
trustee for Prime Mortgage Trust 2005-5 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 AAR Agreement shall be limited solely to the assets it may
hold as trustee of Prime Mortgage Trust 2005-5.
Modification of Purchase Agreement
(a) The Company and Assignor hereby amend the Purchase Agreement as
follows:
(i) The following definitions are added to Article I of the Purchase
Agreement:
ASSIGNEE: U.S. Bank National Association, as trustee for the holders of
the Prime Mortgage Trust 2005-5, Mortgage Pass-Through Certificates,
Series 2005-5.
MASTER SERVICER: ▇▇▇▇▇ Fargo Bank, N.A., or its successors in interest
who meet the qualifications of the Pooling and Servicing Agreement and
this Agreement.
POOLING AND SERVICING AGREEMENT: That certain pooling and servicing
agreement, dated as of December 1, 2005, among Structured Asset
Mortgage Investments II Inc., the Trustee, the Master Servicer, the
Securities Administrator and the Purchaser.
SECURITIES ADMINISTRATOR: ▇▇▇▇▇ Fargo Bank, N.A..
TRUSTEE: U.S. Bank National Association, or its successor in interest,
or any successor trustee appointed as provided in the Pooling and
Servicing Agreement.
(ii) The definition of Business Day is deleted in its entirety and
replaced with the following:
BUSINESS DAY: Any day other than: (i) a Saturday or Sunday, or (ii) a
legal holiday in the States of California, New York, Maryland or
Minnesota, or (iii) a day on which banks in the States of California,
New York, Maryland or Minnesota are authorized or obligated by law or
executive order to be closed.
(iii) The following is added to the first sentence of the fourth
paragraph of Section 4.13 of the Purchase Agreement:
"; provided, however, that any REO property shall be disposed of by the
Company 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."
(iv) Section 6.04 of the Purchase Agreement is deleted in its entirety
and replaced with the following:
Section 6.04 ANNUAL STATEMENT AS TO COMPLIANCE.
The Company will deliver to the Master Servicer and the
Purchaser on or before February 28 of each year, beginning February 28,
2006, an Officers' Certificate in a form acceptable for filing with the
Securities and Exchange Commission as an exhibit to a Form 10-K
stating, as to each signatory thereof, that (i) a review of the
activities of the Company during the preceding calendar year and of
performance under this Agreement has been made under such officers'
supervision, (ii) the Company has fully complied with the provisions of
this Agreement, and (ii) to the best of such officers' knowledge, based
on such review, the Company has fulfilled all of its obligations under
this Agreement throughout such year, or, if there has been a default in
the fulfillment of any such obligation, specifying each such default
known to such officers and the nature and status of cure provisions
thereof. Copies of such statement shall be provided by the Company to
the Master Servicer and Purchaser upon request.
(v) Section 6.05 of the Purchase Agreement is deleted in its entirety
and replaced with the following:
Section 6.05 ANNUAL INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS'
SERVICING REPORT.
The Company at its expense shall cause a firm of independent
public accountants which is a member of the American Institute of
Certified Public Accountants to furnish to the Master Servicer and the
Purchaser on or before February 28 of each year beginning February 28,
2006, a statement in a form acceptable for filing with the Securities
and Exchange Commission as an exhibit to a Form 10-K to the effect that
such firm has examined certain documents and records relating to the
Company's servicing of mortgage loans of the same type as the Mortgage
Loans pursuant to 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 accordance
with the Uniform Single Attestation Program for Mortgage Bankers, such
firm is of the opinion that the Company'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. Copies of such statement shall be provided by the
Company to the Master Servicer and the Purchaser. In addition, on an
annual basis, Company shall provide the Master Servicer and the
Purchaser with copies of its audited financial statements.
(vi) The following is added as Section 6.07 of the Purchase Agreement:
Section 6.07 ANNUAL CERTIFICATION.
(a) For so long as the Mortgage Loans are being master
serviced by a master servicer in a securitization transaction (the
"Master Servicer"), by February 28th of each year (or if not a Business
Day, the immediately preceding Business Day), or at any other time upon
thirty (30) days written request, an officer of the Company shall
execute and deliver an Officer's Certificate to the Master Servicer for
the benefit of such Master Servicer and its officers, directors and
affiliates, certifying as to the following matters:
(i) Based on my knowledge, the information in the
Annual Statement of Compliance, the Annual Independent Public
Accountant's Servicing Report and all servicing reports,
officer's certificates and other information relating to the
servicing of the Mortgage Loans submitted to the Master
Servicer 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 light of the
circumstances under which such statements were made, not
misleading as of the date of this certification;
(ii) The servicing information required to be
provided to the Master Servicer by the Company under this
Agreement has been provided to the Master Servicer;
(iii) I am responsible for reviewing the activities
performed by the Company under this Agreement and based upon
the review required by this Agreement, and except as disclosed
in the Annual Statement of Compliance, the Annual Independent
Public Accountant's Servicing Report and all servicing
reports, officer's certificates and other information relating
to the servicing of the Mortgage Loans submitted to the Master
Servicer, the Company has, as of the date of this
certification fulfilled its obligations under this Agreement;
and
(iv) I have disclosed to the Master Servicer all
significant deficiencies relating to the Company'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 Agreement.
(b) The Company shall indemnify and hold harmless the Master
Servicer 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 Company or any of its
officers, directors, agents or affiliates of its obligations under
Sections 6.04, 6.05 and 6.07 or the negligence, bad faith or willful
misconduct of the Company in connection therewith. If the
indemnification provided for herein is unavailable or insufficient to
hold harmless the Master Servicer, then the Company agrees that it
shall contribute to the amount paid or payable by the Master Servicer
as a result of the losses, claims, damages or liabilities of the Master
Servicer in such proportion as is appropriate to reflect the relative
fault of the Master Servcier on the one hand and the Company on the
other in connection with a breach of the Company's obligations under
Sections 6.04, 6.05 and 6.07 or the Company's negligence, bad faith or
willful misconduct in connection therewith.
(vii) Section 9.01 is hereby modified by deleting the period and adding
a semicolon and the word "or" at the end of clause (ix) thereof and inserting
the following as clause (x):
(x) failure by the Company to duly 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 any party to this
Agreement or by any Master Servicer responsible for master servicing
the Mortgage Loans pursuant to a securitization of such Mortgage Loans.
(viii) Section 11.04 of the Purchase Agreement is deleted in its
entirety and replaced with the following:
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
without giving effect to principles of conflicts of laws and except to
the extent preempted by Federal law and the obligations, rights and
remedies of the parties hereunder shall be determined in accordance
with such laws.
(ix) The following shall be added as Section 11.20 of the Purchase
Agreement:
Section 11.20 THIRD PARTY BENEFICIARY.
For purposes of this Agreement, any Master Servicer shall be
considered a third party beneficiary to this Agreement entitled to all
the rights and benefits accruing to any Master Servicer herein as if it
were a direct party to this Agreement.
Miscellaneous
(a) All demands, notices and communications related to the Assigned
Loans, the Purchase Agreement and this AAR 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: GreenPoint Mortgage Funding, Inc. ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇
▇▇▇▇▇
With a copy to:
(b) In the case of Assignor:
EMC Mortgage Corporation
Mac ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Bear ▇▇▇▇▇▇▇ Mortgage Capital Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
(c) In the case of Assignee:
U.S. Bank National Association, as
Trustee ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Services
PRIME 2005-5
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
(b) The Company hereby acknowledges that ▇▇▇▇▇ Fargo Bank, N.A. (the
"Master Servicer") has been appointed as the master servicer of the Assigned
Loans pursuant to the Pooling and Servicing Agreement, dated as of December 1,
2005, among the Assignor, the Assignee, Structured Asset Mortgage Investments II
Inc., ▇▇▇▇▇ Fargo Bank, N.A. as securities administrator and the Master
Servicer, and therefor has the right to enforce all obligations of the Company,
as they relate to the Assigned Loans, under the Purchase Agreement. Such right
will include, without limitation, the right to terminate the Company under the
Purchase Agreement upon the occurrence of an event of default thereunder, the
right to receive all remittances required to be made by the Company under the
Purchase Agreement, the right to receive all monthly reports and other data
required to be delivered by the Company under the Purchase Agreement, the right
to examine the books and records of the Company, indemnification rights, and the
right to exercise certain rights of consent and approval relating to actions
taken by the Company. The Company shall make all distributions under the
Purchase Agreement, as they relate to the Assigned Loans, to the Master Servicer
by wire transfer of immediately available funds to:
Bear ▇▇▇▇▇▇▇ PRIME 2005-5 Master Servicer Collection Account
▇▇▇▇▇ Fargo Bank, N.A.
ABA# ▇▇▇▇▇▇▇▇▇
Account Name: SAS Clearing
Account # ▇▇▇▇▇▇▇▇▇▇
For Further Credit to: PRIME 20005-5, Account # ▇▇▇▇▇▇▇▇
and the Company shall deliver all reports required to be delivered under the
Purchase Agreement, as they relate to the Assigned Loans, to the Assignee at the
address set forth in Section 8 herein and to the Master Servicer at:
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Client Manager PRIME 2005-5
(c) 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 AAR Agreement.
(d) This AAR 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.
(e) No term or provision of this AAR Agreement may be waived or
modified unless such waiver or modification is in writing and signed by the
party against whom such waiver or modification is sought to be enforced.
(f) This AAR 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.
(g) This AAR Agreement shall survive the conveyance of the Assigned
Loans, the assignment of the Agreements to the extent of the Assigned Loans by
Assignor to Assignee and the termination of the Agreements.
(h) This AAR Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original and all such
counterparts shall constitute one and the same instrument.
(i) In the event that any provision of this AAR Agreement conflicts
with any provision of the Agreements with respect to the Assigned Loans, the
terms of this AAR Agreement shall control.
IN WITNESS WHEREOF, the parties hereto have executed this AAR Agreement
as of the day and year first above written.
EMC MORTGAGE CORPORATION
Assignor
By:
-----------------------------------------
Name:
------------------------------------------
Title:
--------------------------------------
U.S. BANK NATIONAL
ASSOCIATION, not
individually but solely as
Trustee for the Prime
Mortgage Trust, Mortgage
Pass-Through Certificates,
Series 2005-5 Assignee
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
GREENPOINT MORTGAGE FUNDING, INC.
Company
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Acknowledged and Agreed:
▇▇▇▇▇ FARGO BANK, N.A.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
ATTACHMENT 1
ASSIGNED LOAN SCHEDULE
---------- -----------------------------------
Loan GREENPOINT LOAN ID NUMBER
---------- -----------------------------------
1 5000028646
---------- -----------------------------------
2 000033729
---------- -----------------------------------
3 5000033091
---------- -----------------------------------
4 5000033315
---------- -----------------------------------
(ADDITIONAL INFORMATION AVAILABLE UPON REQUEST)
ATTACHMENT 2
PURCHASE AGREEMENT
---------------------------------------
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
This Assignment, Assumption and Recognition Agreement (the "AAR Agreement")
is made and entered into as of December 29, 2005 (the "Closing Date"), among EMC
Mortgage Corporation (the "Assignor"), U.S. Bank National Association, not
individual but solely as trustee for the holders of Prime Mortgage Trust,
Mortgage Pass-Through Certificates, Series 2005-5 (the "Assignee") and JPMorgan
Chase Bank, National Association, as successor to Bank One, N.A. (the
"Company").
Whereas, the Company sold the mortgage loans identified on Attachment 1
hereto (the "Mortgage Loans"), on a servicing retained basis, to the Assignor
pursuant to a mortgage loan sale and servicing agreement (the "Former Servicing
Agreement"); and
Whereas, the Mortgage Loans and the Former Servicing Agreement were
subsequently transferred to the trust formed in connection with the issuance of
the Structured Asset Mortgage Investments Inc., Mortgage Pass-Through
Certificates, Series 2002-4 (the "Underlying Trust"); and
Whereas, pursuant to the Pooling and Servicing Agreement for the
Underlying Trust (the "Underlying Pooling and Servicing Agreement"), the
Assignor had the right to purchase the Mortgage Loans (the "Call Right") from
the Underlying Trust following the occurrence of certain trigger events (the
"Trigger Events") set forth in the Underlying Pooling and Servicing Agreement;
and
Whereas, following the occurrence of the Trigger Events, the Assignor
exercised the Call Right and purchased the Mortgage Loans from the Underlying
Trust; and
Whereas, the Assignor and the Company desire that, from and after the date
hereof, all of the Mortgage Loans be serviced in accordance with the terms and
conditions of that certain Servicing Agreement, dated as of February 1, 2004,
(the "Servicing Agreement") between the Assignor and the Company, and that with
respect to the Mortgage Loans, the terms and conditions of the Servicing
Agreement supercede and replace in their entirety the servicing-related terms
and conditions of the Former Servicing Agreement;
In consideration of the mutual promises and agreements contained herein, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree that the Mortgage Loans (the
"Assigned Loans") shall be subject to the terms of this AAR Agreement. Any
capitalized term used and not otherwise defined herein shall have the meaning
assigned to such term in the Servicing Agreement.
RECOGNITION OF THE ASSIGNOR
1. Company recognizes Assignor as owner of the Assigned Loans and
acknowledges that it is currently servicing the Assigned Loans for the benefit
of Assignor. From and after the date hereof, Company agrees that it will service
the Assigned Loans pursuant to the terms of the Servicing Agreement which terms
are incorporated herein by reference.
ASSIGNMENT AND ASSUMPTION
2. Except as expressly provided for herein, the Assignor hereby grants,
transfers and assigns to the Assignee all of its right, title and interest as
in, to and under (a) the Assigned Loans and (b) as they relate to the Assigned
Loans, the Servicing Agreement. Except as is otherwise expressly provided
herein, the Assignor makes no representations, warranties or covenants to the
Assignee and the Assignee acknowledges that the Assignor has no obligations to
the Assignee under the terms of the Servicing Agreement or otherwise relating to
the transaction contemplated herein (including, but not limited to, any
obligation to indemnify the Assignee).
Assignor acknowledges and agrees that upon execution of this Agreement,
the Assignee shall become the "Owner" under the Servicing Agreement, and all
representations, warranties and covenants by the "Servicer" to the "Owner" under
the Servicing Agreement including, but not limited to, the rights to receive
indemnification, shall accrue to Assignee by virtue of this Agreement.
REPRESENTATIONS, WARRANTIES AND COVENANTS
3. Assignor warrants and represents to, and covenants with, Assignee
and Company as of the date hereof that:
a. Attached hereto as ATTACHMENT 2 is a true and correct copy
of the Servicing Agreement, which Servicing 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. 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 Servicing
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 Servicing 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 the Company with respect to the Assigned Loans or
the Servicing 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 AAR Agreement,
and to consummate the transactions set forth herein. The
consummation of the transactions contemplated by this AAR
Agreement is in the ordinary course of 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 AAR 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 AAR Agreement has been duly executed and
delivered by Assignor and, upon the due authorization,
execution and delivery by Assignee and the parties hereto,
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 AAR Agreement, or the consummation by it of
the transactions contemplated hereby. 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;
h. The Assignor has received from the Company, and has
delivered to the Assignee, all documents required to be
delivered to the Assignor by the Company prior to the date
hereof with respect to the Assigned Loans and has not
received, and has not requested from the Company, any
additional documents; and
i. 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 Assignor, would adversely affect
Assignor's execution or delivery of, or the enforceability of,
this AAR Agreement, or the Assignor's ability to perform its
obligations under this AAR Agreement.
4. The Assignee warrants and represents to, and covenants with, the
Assignor and the Company as of the date hereof that:
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 hold
the Assigned Loans on behalf of the holders of Prime Mortgage
Trust, Mortgage Pass-Through Certificates, 2005-5;
b. Assignee has full corporate power and authority to execute,
deliver and perform under this AAR Agreement, and to
consummate the transactions set forth herein. The consummation
of the transactions contemplated by this AAR Agreement is in
the ordinary course of 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 AAR 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 AAR
Agreement has been duly executed and delivered by Assignee
and, upon the due authorization, execution and delivery by
Assignor and the parties hereto, 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; and
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 AAR Agreement, or the consummation by it of
the transactions contemplated hereby; and
d. Assignee assumes for the benefit of each of Assignor and
Company all of the Assignor's rights as "Owner" under the
Servicing Agreement but solely with respect to such Assigned
Loans.
5. Company warrants and represents to, and covenants with, Assignee and
Assignor, as of the date hereof, that:
a. Attached hereto as ATTACHMENT 2 is a true and correct copy
of the Servicing 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
organization, and has all requisite power and authority to
service the Assigned Loans and otherwise to perform its
obligations under the Servicing Agreement;
c. Company has full power and authority to execute, deliver
and perform its obligations under this AAR Agreement, and to
consummate the transactions set forth herein. The consummation
of the transactions contemplated by this AAR Agreement is in
the ordinary course of 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 AAR 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 AAR
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;
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 Company in
connection with the execution, delivery or performance by
Company of this AAR Agreement, or the consummation by it of
the transactions contemplated hereby; e. Company shall
establish a Custodial Account (entitled JPMorgan Chase Bank,
National Association, as Servicer, in trust for U.S. Bank
National Association, as trustee for Prime Mortgage Trust,
Mortgage Pass-Through Certificates, 2005-5) and an Escrow
Account (entitled JPMorgan Chase Bank, National Association,
as Servicer, in trust for Prime Mortgage Trust, Mortgage
Pass-Through Certificates, 2005-5) under the Servicing
Agreement in favor of Assignee with respect to the Assigned
Loans separate from the Custodial Account and Escrow Account
previously established by the Company in favor of Assignor;
and
f. Neither this AAR Agreement nor any certification,
statement, report or other agreement, document or instrument
furnished or to be furnished by the Company pursuant to this
AAR Agreement contains or will contain any materially untrue
statement of fact or omits or will omit to state a fact
necessary to make the statements contained therein not
misleading.
6. Assignor hereby agrees to indemnify and hold the Assignee (and its
successors and assigns) harmless against any and all claims, losses, penalties,
fines, forfeitures, legal fees and related costs, judgments, and any other
costs, fees and expenses that Assignee (and its successors and assigns) may
sustain in any way related to any breach of the representations or warranties of
Assignor set forth in this AAR Agreement or the breach of any covenant or
condition contained herein.
RECOGNITION OF ASSIGNEE
7. From and after the date hereof, Company shall recognize Assignee as
owner of the Assigned Loans, and acknowledges that the Assigned Loans will be
part of a REMIC or multiple REMICs, and will service the Assigned Loans in
accordance with the Servicing Agreement but in no event in a manner that would
(i) cause any REMIC to fail to qualify as a REMIC or (ii) 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). It is the
intention of Assignor, Company and Assignee that this AAR 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, waive, or otherwise alter any of the terms or provisions of the
Servicing Agreement which amendment, modification, waiver or other alteration
would in any way affect the Assigned Loans without the prior written consent of
Assignee.
8. Notwithstanding any term hereof to the contrary, the execution and
delivery of this AAR Agreement by the Assignee is solely in its capacity as
trustee for Prime Mortgage Trust, Mortgage Pass-Through Certificates, Series
2005-5 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 AAR Agreement
shall be limited solely to the assets it may hold as trustee of Prime Mortgage
Trust, Mortgage Pass-Through Certificates, Series 2005-5.
MODIFICATION OF SERVICING AGREEMENT
9. The Servicing Agreement, as it relates to the Assigned Loans, shall
be amended by the Company and the Assignor as follows:
(a) Section 6.04 of the Servicing Agreement is amended by
adding the phrase "in a form acceptable for filing with the
Securities and Exchange Commission as an exhibit to a Form
10-K" following the phrase "an Officer's Certificate" and by
deleting the year "2005" and replacing it with the year
"2006".
(b) Section 6.05 of the Servicing Agreement is amended by
adding the phrase "in a form acceptable for filing with the
Securities and Exchange Commission as an exhibit to a Form
10-K" following the phrase "furnish a statement to the Owner"
and by deleting the year "2005" and replacing it with the year
"2006".
MISCELLANEOUS
10. All demands, notices and communications related to the Assigned
Loans, the Servicing Agreement and this AAR 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,
JPMorgan Chase Bank, National Association
c/o Chase Home Finance, LLC
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
JPMorgan Chase Bank, National Association
c/o Chase Home Finance, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
b. In the case of Assignor,
EMC Mortgage Corporation
Mac ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
c. In the case of Assignee,
U.S. Bank National Association, as Trustee
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Services, PRIME 2005-5 Telecopier
No.: (▇▇▇) ▇▇▇-▇▇▇▇
11. The Company hereby acknowledges that ▇▇▇▇▇ Fargo Bank, N.A. (the
"Master Servicer") has been appointed as the master servicer of the Assigned
Loans pursuant to the Pooling and Servicing Agreement, dated as of December 1,
2005, among the Assignor, the Assignee, Structured Asset Mortgage Investments II
Inc., ▇▇▇▇▇ Fargo Bank, N.A. as securities administrator and the Master
Servicer, and therefore has the right to enforce all obligations of the Company,
as they relate to the Assigned Loans, under the Servicing Agreement. Such right
will include, without limitation, the right to terminate the Company under the
Servicing Agreement upon the occurrence of an event of default thereunder, the
right to receive all remittances required to be made by the Company under the
Servicing Agreement, the right to receive all monthly reports and other data
required to be delivered by the Company under the Servicing Agreement, the right
to examine the books and records of the Company, indemnification rights, and the
right to exercise certain rights of consent and approval relating to actions
taken by the Company. The Company shall make all distributions under the
Servicing Agreement, as they relate to the Assigned Loans, to the Master
Servicer by wire transfer of immediately available funds to:
Bear ▇▇▇▇▇▇▇ PRIME 2005-5 Master Servicer Collection Account
▇▇▇▇▇ Fargo Bank, N.A.
ABA# ▇▇▇▇▇▇▇▇▇
Account Name: SAS Clearing
Account # ▇▇▇▇▇▇▇▇▇▇
For Further Credit to: PRIME 2005-5, Account # ▇▇▇▇▇▇▇▇
and the Company shall deliver all reports required to be delivered under the
Servicing Agreement, as they relate to the Assigned Loans, to the Assignee at
the address set forth in Section 10 herein and to the Master Servicer at:
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Attention: Client Manager PRIME 2005-5
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
12. THIS AAR 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.
13. No term or provision of this AAR Agreement may be waived or
modified unless such waiver or modification is in writing and signed by the
party against whom such waiver or modification is sought to be enforced.
14. This AAR 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.
15. This AAR Agreement shall survive the conveyance of the Assigned
Loans, the assignment of the Servicing Agreement to the extent of the Assigned
Loans by Assignor to Assignee and the termination of the Servicing Agreement.
16. This AAR Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original and all such
counterparts shall constitute one and the same instrument.
17. In the event that any provision of this AAR Agreement conflicts
with any provision of the Servicing Agreement with respect to the Assigned
Loans, the terms of this AAR Agreement shall control.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date first above written.
EMC MORTAGE CORPORATION, U.S. BANK NATIONAL ASSOCIATION, NOT
THE ASSIGNOR IN ITS INDIVIDUALCAPACITY BUT SOLELY
AS TRUSTEE FOR THE HOLDERS OF PRIME
MORTGAGE TRUST, MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES
2005-5, THE ASSIGNEE
By: By:
-------------------------------- --------------------------
Name: Name:
----------------------------- -------------------------
Title: Title:
--------------------------- ------------------------
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
THE COMPANY
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
ACKNOWLEDGED AND AGREED
▇▇▇▇▇ FARGO BANK, N.A.
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
ATTACHMENT 1
MORTGAGE LOANS
ATTACHMENT 2
SERVICING AGREEMENT
---------------------------------------
NATIONAL CITY MORTGAGE CO.
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
This is an Assignment, Assumption and Recognition Agreement (this "AAR
Agreement") made as of December 29, 2005, among EMC Mortgage Corporation (the
"Assignor"), U.S. Bank National Association, not individually but solely as
trustee for the holders of Prime Mortgage Trust, Mortgage Pass-Through
Certificates, Series 2005-5 (the "Assignee") and National City Mortgage Co. (the
"Company").
Whereas, the Company sold the mortgage loans identified on Attachment 1
hereto (the "Mortgage Loans"), on a servicing retained basis, to the Assignor;
and
Whereas, the Mortgage Loans were subsequently transferred to various
trusts (the "Underlying Trusts") in connection with various securitizations; and
Whereas, pursuant to the Pooling and Servicing Agreements for the
Underlying Trusts (the "Underlying Pooling Agreements"), the Assignor had the
right to purchase the Mortgage Loans (the "Call Right") from the Underlying
Trusts following the occurrence of certain trigger events (the "Trigger Events")
set forth in the Underlying Pooling Agreements; and
Whereas, following the occurrence of the Trigger Events, the Assignor
exercised the related Call Right and purchased the Mortgage Loans from the
Underlying Trusts; and
Whereas, Assignor and Company desire that, from and after the date
hereof, the Assigned Loans be serviced in accordance with the terms and
conditions of that certain Purchase, Warranties and Servicing Agreement dated as
of October 1, 2001, between the Assignor and the Company (the "Purchase
Agreement").
In consideration of the mutual promises and agreements contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree that the
Assigned Loans shall be subject to the terms of this AAR Agreement. Capitalized
terms used herein but not defined shall have the meanings ascribed to them in
the Purchase Agreement.
RECOGNITION OF THE ASSIGNOR
1. Company recognizes Assignor as owner of the Assigned Loans and
acknowledges that it is currently servicing the Assigned Loans for the
benefit of Assignor. From and after the date hereof, Company agrees
that it will service the Assigned Loans pursuant to the terms of the
Purchase Agreement (as modified herein) which terms are incorporated
herein by reference.
ASSIGNMENT AND ASSUMPTION
2. 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. Assignor specifically reserves and does not assign to
Assignee any right title and interest in, to or under any mortgage loans subject
to the Purchase Agreement other than those set forth on Attachment l.
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;
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 of any and all liens,
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 Assignor'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. Assignor has not received notice of, and has no
knowledge of, any offsets, counterclaims or other
defenses available to Company with respect to the
Assigned Loans or the Purchase Agreement;
d. Assignor has not waived or agreed to any waiver
under, or agreed to any amendment or other
modifications of, the Purchase Agreement. Assignor
has no knowledge of, and has not received notice of,
any waivers under or any amendments or other
modifications of, or assignment of rights or
obligations under the Purchase Agreement;
e. Assignor is a corporation 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 acquire, own and sell the
Assigned Loans;
f. Assignor has full power and authority to execute,
deliver and perform its obligations under this AAR
Agreement, and to consummate the transactions set
forth herein. The consummation of the transactions
contemplated by this AAR Agreement is in the ordinary
course of 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 AAR Agreement and the
consummation by it of the transactions contemplated
hereby, have been duly authorized by all necessary
action on the part of Assignor. This AAR 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 material 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 AAR
Agreement, or the consummation by it of the
transactions contemplated hereby. 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;
h. There is no action, suit, proceeding, investigation
or litigation pending or, to Assignor's knowledge,
threatened, which either in any instance or in the
aggregate, if determined adversely to Assignor, would
adversely affect Assignee's execution or delivery of,
or the enforceability of, this AAR Agreement, or the
Assignor's ability to perform its obligations under
this AAR Agreement; and
i. Assignor has received from Company, and has delivered
to Assignee, all documents required to be delivered
to Assignor by Company prior to the date hereof with
respect to the Assigned Loans.
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 and hold the Assigned Loans as
trustee on behalf of the holders of Prime Mortgage
Trust, Mortgage Pass-Through Certificates, Series
2005-5;
b. Assignee has full power and authority to execute,
deliver and perform its obligations under this AAR
Agreement, and to consummate the transactions set
forth herein. The consummation of the transactions
contemplated by this AAR Agreement is in the ordinary
course of 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 AAR Agreement and the
consummation by it of the transactions contemplated
hereby, have been duly authorized by all necessary
action on the part of Assignee. This AAR 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 material 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 AAR
Agreement, or the consummation by it of the
transactions contemplated hereby; and
d. There is no action, suit, proceeding, investigation
or litigation pending or, to Assignee's knowledge,
threatened, which either in any instance or in the
aggregate, if determined adversely to Assignee, would
adversely affect Assignee's execution or delivery of,
or the enforceability of, this AAR Agreement, or the
Assignee's ability to perform its obligations under
this AAR Agreement.
5. Company warrants and represents to, and covenants with, Assignor and
Assignee 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;
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;
c. Company has full corporate power and authority to
execute, deliver and perform its obligations under
this AAR Agreement, and to consummate the
transactions set forth herein. The consummation of
the transactions contemplated by this AAR Agreement
is in the ordinary course of 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 AAR Agreement and the consummation
by it of the transactions contemplated hereby, have
been duly authorized by all necessary corporate
action on the part of Company. This AAR 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;
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 Company in connection with the execution,
delivery or performance by Company of this AAR
Agreement, or the consummation by it of the
transactions contemplated hereby; and
e. Company shall establish 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 in favor of Assignor.
6. Notwithstanding any term hereof to the contrary, the execution and
delivery of this AAR Agreement by the Assignee is solely in its capacity as
trustee for Prime Mortgage Trust, Mortgage Pass-Through Certificates, Series
2005-5 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 AAR Agreement
shall be limited solely to the assets it may hold as trustee of Prime Mortgage
Trust, Mortgage Pass-Through Certificates, Series 2005-5.
RECOGNITION OF ASSIGNEE
7. From and after the date hereof, Company shall recognize Assignee as
owner of the Assigned Loans and will service the Assigned Loans for Assignee as
if Assignee and Company had entered into a separate servicing agreement for the
servicing of the Assigned Loans in the form of the Purchase Agreement (as
modified herein), 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 December 1, 2005, by and among,
EMC Mortgage Corporation, Structured Asset Mortgage Investments II Inc., ▇▇▇▇▇
Fargo Bank, N.A. as master servicer (the "Master Servicer") and securities
administrator and U.S. Bank National Association. Pursuant to the Pooling and
Servicing Agreement, the Master Servicer has the right to monitor and enforce,
on behalf of the Assignee, the performance by Company of its servicing
obligations under this AAR Agreement. Such right will include, without
limitation, the right to terminate the Company under the Purchase Agreement upon
the occurrence of an event of default thereunder, the right to receive all
remittances required to be made by the Company under the Purchase Agreement, the
right to receive all monthly reports and other data required to be delivered by
the Company under the Purchase Agreement, the right to examine the books and
records of the Company, indemnification rights, and the right to exercise
certain rights of consent and approval relating to actions taken by the Company.
In connection therewith, Company hereby agrees that all remittances required to
be made with respect to the Assigned Loans pursuant to the Purchase Agreement
will be made in accordance with the following wire transfer instructions:
Bank: ▇▇▇▇▇ Fargo Bank, N.A.
ABA Routing Number: ▇▇▇▇▇▇▇▇▇
Account Name: SAS Clearing
Account # ▇▇▇▇▇▇▇▇▇▇
FFC to: PRIME 2005-5, Account # ▇▇▇▇▇▇▇▇
and the Company shall deliver all reports and other notices required to be
delivered under the Purchase Agreement to the Assignee and to the Master
Servicer at:
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Client Manager PRIME 2005-5
It is the intention of Assignor, Company and Assignee that
this AAR 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, waive, 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.
MODIFICATION OF THE PURCHASE AGREEMENT
8. The Purchase Agreement, as it relates to the Assigned Loans, shall
be 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:
MASTER SERVICER: ▇▇▇▇▇ Fargo Bank, N.A., or its successors in interest
who meet the qualifications of the Pooling and Servicing Agreement and this
Agreement.
NONRECOVERABLE ADVANCE: Any advance previously made by the Company
pursuant to Section 5.03 or any Servicing Advance which, in the good faith
judgment of the Company, may not be ultimately recoverable by the Company from
Liquidation Proceeds or otherwise. The determination by the Company that it has
made a Nonrecoverable Advance, shall be evidenced by an Officer's Certificate of
the Company delivered to the Purchaser and the Master Servicer and detailing the
reasons for such determination.
POOLING AND SERVICING AGREEMENT: That certain pooling and servicing
agreement, dated as of December 1, 2005, among Structured Asset Mortgage
Investments II Inc., EMC Mortgage Corporation, U.S. Bank National Association,
as trustee, ▇▇▇▇▇ Fargo Bank, N.A. as securities administrator and the Master
Servicer.
(b) The definition of "Business Day" is deleted in its
entirety and replaced with the following definition:
BUSINESS DAY: Any day other than: (i) a Saturday or Sunday, or (ii) a
legal holiday in the States of Maryland, Minnesota, New York or Ohio, or (iii) a
day on which banks in the States of Maryland, Minnesota, New York or Ohio are
authorized or obligated by law or executive order to be closed.
(c) Subsection 3.02(nn) of the Purchase Agreement shall be
deleted in its entirety and replaced with the following:
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;
(d) Section 6.02 of the Purchase Agreement is hereby amended
by including the words "(or if the Company does not, the Master Servicer may)"
after the word "will" and before the word "immediately" in the third line
thereof.
(e) Section 6.04 of the Purchase Agreement shall be deleted in
its entirety and replaced with the following:
Section 6.04 ANNUAL STATEMENT AS TO COMPLIANCE.
The Company will deliver to the Master Servicer on or before March 15
of each year, beginning with March 15, 2006, an Officer's Certificate (each, an
"Annual Statement of Compliance") in a form acceptable for filing with the
Securities and Exchange Commission as an exhibit to a Form 10-K stating that (i)
a review of the activities of the Company during the preceding calendar year and
of performance under this Agreement has been made under such officer's
supervision, (ii) the Company has fully complied with the provisions of this
Agreement and (iii) to the best of such officer's knowledge, based on such
review, the Company has fulfilled all of its obligations under this Agreement
throughout such year, or, if there has been a default in the fulfillment of any
such obligation, specifying each such default known to such officer and the
nature and status thereof.
(f) Section 6.05 of the Purchase Agreement shall be
deleted in its entirety and replaced with the following:
Section 6.05 ANNUAL INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS'
SERVICING REPORT.
On or before March 15 of each year beginning March 15, 2006, the
Company at its expense shall cause a firm of independent public accountants
which is a member of the American Institute of Certified Public Accountants to
furnish a statement (each, an "Annual Independent Public Accountant's Servicing
Report") to the Master Servicer in a form acceptable for filing with the
Securities and Exchange Commission as an exhibit to a Form 10-K to the effect
that such firm has examined certain documents and records relating to the
servicing of mortgage loans by the Company generally that include a sampling of
the Mortgage Loans, the provisions of Article IV and Sections 6.01 and 6.02 have
been complied with and, on the basis of such an examination conducted
substantially in accordance with the Uniform Single Attestation Program for
Mortgage Bankers, such servicing has been conducted in compliance with this
Agreement, 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.
(g) The following Section 6.07 shall be added to the end of
Article 6:
Section 6.07 ANNUAL CERTIFICATION.
(a) For so long as the Mortgage Loans are being master serviced by the
Master Servicer, by March 15th of each year (or if not a Business Day, the
immediately preceding Business Day), or at any other time upon thirty (30) days
written request, an officer of the Company shall execute and deliver an
Officer's Certificate to the Master Servicer for the benefit of such Master
Servicer and its officers, directors and affiliates, certifying as to the
following matters:
(i) Based on my knowledge, the information in the Annual
Statement of Compliance, the Annual Independent Public Accountant's Servicing
Report and all servicing reports, officer's certificates and other information
relating to the servicing of the Mortgage Loans submitted to the Master Servicer
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 light of
the circumstances under which such statements were made, not misleading as of
the date of this certification;
(ii) The servicing information required to be provided to the
Master Servicer by the Company under this Agreement has been provided to the
Master Servicer;
(iii) I am responsible for reviewing the activities performed
by the Company under the Agreement and based upon the review required by this
Agreement, and except as disclosed in the Annual Statement of Compliance or the
Annual Independent Public Accountant's Servicing Report submitted to the Master
Servicer, the Company has, as of the date of this certification fulfilled all
its obligations under this Agreement; and
(iv) I have disclosed to the Master Servicer all significant
deficiencies relating to the Company'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 Agreement.
(b) The Company shall indemnify and hold harmless the Master Servicer
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 Company or any of its officers, directors, agents or affiliates of its
obligations under this Subsection 6.07 or the negligence, bad faith or willful
misconduct of the Company in connection therewith. If the indemnification
provided for herein is unavailable or insufficient to hold harmless the Master
Servicer, then the Company agrees that it shall contribute to the amount paid or
payable by the Master Servicer as a result of the losses, claims, damages or
liabilities of the Master Servicer in such proportion as is appropriate to
reflect the relative fault of the Master Servicer on the one hand and the
Company on the other in connection with a breach of the Company's obligations
under this Subsection 6.07 or the Company's negligence, bad faith or willful
misconduct in connection therewith.
(h) Section 9.01 of the Purchase Agreement is hereby amended
by adding the word "or" at the end of clause (ix) thereof and inserting the
following as clause (x):
(x) failure by the Company to duly perform, within the
required time period, its obligations under Subsection 6.04, 6.05 or 6.07 which
failure continues unremedied for a period of ten (10) 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 any party to this Agreement or by any Master
Servicer.
(i) The following is added as Subsection 4.05(vii) of the
Purchase Agreement:
(vii) to reimburse itself for any Nonrecoverable Advances;
(j) Section 11.04 of the Purchase Agreement is deleted in its
entirety and replaced with the following:
Section 11.04 GOVERNING LAW.
This Agreement and the related Term Sheets shall be governed
by and construed in accordance with the laws of the State of New York without
giving effect to principles of conflicts of laws and 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.
MISCELLANEOUS
9. All demands, notices and communications related to the Assigned
Loans, the Purchase Agreement and this AAR Agreement shall be in writing and
shall be deemed to have been duly given if personally delivered or mailed by
registered mail, postage prepaid, as follows:
a. In the case of Company,
National City Mortgage Co.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
b. In the case of Assignor,
EMC Mortgage Corporation
Mac ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Bear ▇▇▇▇▇▇▇ Mortgage Capital Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
c. In the case of Assignee,
U.S. Bank National Association, as Trustee ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Services, PRIME 2005-5
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
d. In the case of the Master Servicer,
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Client Manager PRIME 2005-5
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
10. This AAR 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.
11. No term or provision of this AAR Agreement may be waived or
modified unless such waiver or modification is in writing and signed by the
party against whom such waiver or modification is sought to be enforced.
12. This AAR 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. Any Master Servicer shall be considered a third party beneficiary of
this AAR Agreement, entitled to all the rights and benefits accruing to any
Master Servicer herein as if it were a direct party to this AAR Agreement.
13. This AAR Agreement shall survive the conveyance of the Assigned
Loans as contemplated in this AAR Agreement.
14. This AAR Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original and all such
counterparts shall constitute one and the same instrument.
15. In the event that any provision of this AAR Agreement conflicts
with any provision of the Purchase Agreement with respect to the Assigned Loans,
the terms of this AAR Agreement shall control.
IN WITNESS WHEREOF, the parties hereto have executed this AAR Agreement
as of the day and year first above written.
EMC MORTGAGE CORPORATION
Assignor
By:
-----------------------------------------
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity but solely as Trustee for the holders of Prime
Mortgage Trust, Mortgage Pass-Through Certificates, Series 2005-5, as Assignee
By:
-----------------------------------------
Name:
Title:
NATIONAL CITY MORTGAGE CO.
Company
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
ACKNOWLEDGED AND AGREED:
▇▇▇▇▇ FARGO BANK, N.A.
Master Servicer
By:
-----------------------------------------
Name:
Title:
ATTACHMENT l
ASSIGNED LOAN SCHEDULE
ATTACHMENT 2
PURCHASE AGREEMENT
NAVY FEDERAL CREDIT UNION
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
This Assignment, Assumption and Recognition Agreement (this "Assignment
Agreement"), dated as of December 29, 2005, between EMC Mortgage Corporation, a
Delaware corporation (the "Assignor"), U.S. Bank National Association, not
individually but solely as trustee for the holders of Prime Mortgage Trust,
Mortgage Pass-Through Certificates, Series 2005-5 (the "Assignee") and Navy
Federal Credit Union (the "Company").
Whereas, the Company sold the mortgage loans identified on Attachment 1
hereto (the "Assigned Loans"), on a servicing retained basis, to E*Trade Bank,
pursuant to the Mortgage Loan Flow Purchase and Sale Agreement, dated as of
February 28, 2000, between the Company and E*Trade Bank; and
Whereas, the Assignor purchased the Assigned Loans from E*Trade Bank
pursuant to the Assignment, Assumption and Recognition Agreement, dated as of
September 25, 2001, among the Assignor, E*Trade Bank and the Company; and
Whereas, the Assigned Loans were subsequently transferred to the trust
formed in connection with the Structured Asset Mortgage Investments, Inc.,
Mortgage Pass-Through Certificates, Series 2002-4 (the "Underlying Trust"); and
Whereas, pursuant to the Pooling and Servicing Agreement for the
Underlying Trust (the "Underlying Pooling Agreement"), the Assignor had the
right to purchase the Assigned Loans (the "Call Right") from the Underlying
Trust following the occurrence of certain trigger events (the "Trigger Events")
set forth in the Underlying Pooling Agreement; and
Whereas, following the occurrence of the Trigger Events, the Assignor
exercised the Call Right and purchased the Assigned Loans from the Underlying
Trust; and
Whereas, Assignor and Company desire that, from and after the date
hereof, all of the Assigned Loans be serviced in accordance with the servicing
terms and conditions of that certain Purchase, Warranties and Servicing
Agreement, dated June 1, 2002 between the Assignor and U.S. Central Credit Union
(the "Servicing Agreement").
In consideration of the mutual promises and agreements contained herein,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree that the Assigned Loans
shall be subject to the terms of this Assignment Agreement. Any capitalized term
used and not otherwise defined herein shall have the meaning assigned to such
term in the Servicing Agreement.
RECOGNITION OF THE ASSIGNOR
Company recognizes Assignor as owner of the Assigned Loans and
acknowledges that it is currently servicing the Assigned Loans for the benefit
of Assignor. From and after the date hereof, Company agrees that it will service
the Assigned Loans pursuant to the terms of the Servicing Agreement (as modified
herein), as if it were the named "Company" and "Servicer" thereunder, which
terms are incorporated herein by reference.
ASSIGNMENT AND ASSUMPTION
Assignor hereby grants, transfers and assigns to Assignee all of the
right, title and interest of Assignor in the Assigned Loans and, as it relates
to the Assigned Loans, all of its right, title and interest in, to and under the
Servicing Agreement. Assignor specifically reserves and does not assign to
Assignee any right title and interest in, to or under any mortgage loans subject
to the Servicing Agreement other than those set forth on Attachment l.
REPRESENTATIONS, WARRANTIES AND COVENANTS
Assignor hereby warrants and represents to, and covenants with, the
Assignee and the Company that:
(a) Attached hereto as Attachment 2 is a true and accurate copy
of the Servicing 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) 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 Servicing Agreement 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 Servicing 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 the Company with respect to the Assigned Loans or the
Servicing 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 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
(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.
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 Prime Mortgage Trust, Mortgage
Pass-Through Certificates, Series 2005-5;
(b) The Assignee 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 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 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;
(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;
(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;
(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;
(f) Assignee assumes for the benefit of each of Assignor and
Company all of Assignor's rights and obligations as "Purchaser" under
the Servicing Agreement but solely with respect to such Assigned Loans;
provided however, that Assignee is assuming such obligations solely in
its capacity as trustee for Prime Mortgage Trust, Mortgage Pass-Through
Certificates, Series 2005-5 and not individually, and any recourse
against the Assignee in respect of such obligations shall be limited
solely to the assets it may hold as trustee of Prime Mortgage Trust,
Mortgage Pass-Through Certificates, Series 2005-5; and
(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
Servicing Agreement. The Assignee is solvent and the purchase of the
Assigned Loans will not cause the Assignee to become insolvent.
The Company hereby warrants and represents to, and covenants with, the
Assignor and the Assignee that:
(a) Attached hereto as Attachment 2 is a true and accurate copy
of the Servicing 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 formation, and has
all requisite power and authority to service the Assigned Loans and
otherwise to perform its obligations under the Servicing Agreement;
(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;
(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; and
(e) Company shall cause the establishment of a Custodial Account
and an Escrow Account under the Servicing Agreement in favor of Assignee
with respect to the Assigned Loans separate from the Custodial Account
and the Escrow Account previously established in favor of Assignor.
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 Prime Mortgage Trust, Mortgage Pass-Through Certificates, Series 2005-5 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 Prime Mortgage Trust,
Mortgage Pass-Through Certificates, Series 2005-5.
RECOGNITION OF ASSIGNEE
From and after the date hereof, Company shall recognize the Assignee as
owner of the Assigned Loans and will service the Assigned Loans 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 Servicing 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 December 1, 2005, by and among EMC Mortgage
Corporation, Structured Asset Mortgage Investments II Inc., ▇▇▇▇▇ Fargo Bank,
N.A., as master servicer (the "Master Servicer") and securities administrator,
and U.S. Bank National Association. Pursuant to the Pooling and Servicing
Agreement, the Master Servicer is required to monitor and enforce, on behalf of
the Assignee, the performance by the Company of its obligations to service the
Assigned Loans under this Assignment Agreement. Such right will include, without
limitation, the right to terminate the rights and obligations of the Company
under the Servicing Agreement upon the occurrence of an event of default
thereunder, the right to receive all remittances the Company is required to make
under the Servicing Agreement, the right to receive all monthly reports and
other data the Company is required to deliver under the Servicing Agreement, the
right to examine the books and records of the Company, 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 Servicing Agreement shall be made in accordance with the
following wire transfer instructions:
PRIME 2005-5 Master Servicer Collection Account
Bank: ▇▇▇▇▇ Fargo Bank, N.A.
ABA Routing Number: ▇▇▇▇▇▇▇▇▇
Account Name: SAS Clearing Account #▇▇▇▇▇▇▇▇▇▇
FFC to: PRIME 2005-5, Account # ▇▇▇▇▇▇▇▇
and the Company shall deliver all reports and other notices required to be
delivered under the Servicing Agreement to the Assignee and to the Master
Servicer at:
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Client Manager PRIME 2005-5
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 Servicing Agreement which amendment,
modification, waiver or other alteration would in any way affect the Assigned
Loans without the prior written consent of the Assignee.
MODIFICATION OF THE SERVICING AGREEMENT
The Servicing 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 Servicing Agreement shall be amended by adding
the following definitions thereto:
MASTER SERVICER: ▇▇▇▇▇ Fargo Bank, N.A., or its successors in
interest who meet the qualifications of the Pooling and Servicing
Agreement and this Agreement.
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 December 1, 2005, among Structured
Asset Mortgage Investments II Inc., EMC Mortgage Corporation, U.S. Bank
National Association, as trustee, and ▇▇▇▇▇ Fargo Bank, N.A. as the
Master Servicer and Securities Administrator.
b. The definition of Business Day in Section 1.01 of the Servicing
Agreement shall be deleted and replaced with the following definition:
BUSINESS DAY: Any day other than: (A) a Saturday or Sunday, or
(B) a legal holiday in the States of New York, Kansas, Maryland or
Minnesota or (C) a day on which banks in the States of New York, Kansas,
Maryland or Minnesota are authorized or obligated by law or executive
order to be closed.
c. The definition of Company in Section 1.01 of the Servicing Agreement
shall be deleted and replaced with the following definition:
COMPANY: Navy Federal Credit Union, and its successors in
interest and assigns, as permitted by this Agreement.
d. The definition of Servicer in Section 1.01 of the Servicing Agreement
shall be deleted and replaced with the following definition:
SERVICER: Navy Federal Credit Union, and its successors in
interest and assigns.
e. Section 4.05 of the Servicing Agreement is hereby amended by adding
the word "and" at the end of clause H thereof and inserting the following as
clause I:
I. to reimburse itself for any Nonrecoverable Advances.
f. Section 4.13 of the Servicing 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 Purchaser.
g. The following shall be added as Section 4.15 of the Servicing
Agreement:
Section 4.15 FAIR CREDIT REPORTING ACT.
The Servicer for each Mortgage Loan will fully furnish, as
required by and in accordance with the Fair Credit Reporting Act and
its implementing regulations, accurate and complete information (i.e.,
favorable and unfavorable) on its borrower credit files to Equifax,
Experian, and Trans Union Credit Information Company (three of the
credit repositories), on a monthly basis.
h. Section 6.04 of the Servicing Agreement shall be deleted in its
entirety and replaced with the following:
Section 6.04 ANNUAL STATEMENT AS TO COMPLIANCE.
The Company will deliver to the Master Servicer on or before
March 15 of each year, beginning with March 15, 2006, a certificate
signed by an officer of the Company (an "Annual Statement of
Compliance") in a form acceptable for filing with the Securities and
Exchange Commission as an exhibit to a Form 10-K stating that (i) a
review of the activities of the Company during the preceding calendar
year and of performance under this Agreement has been made under such
officer's supervision, and (ii) to the best of such officer's knowledge,
based on such review, the Company has fulfilled all of its obligations
under this Agreement throughout such year, or, if there has been a
default in the fulfillment of any such obligation, specifying each such
default known to such officer and the nature and status thereof.
i. Section 6.05 of the Servicing Agreement shall be deleted in its
entirety and replaced with the following:
Section 6.05 ANNUAL INDEPENDENT CERTIFIED PUBLIC
ACCOUNTANTS' SERVICING REPORT.
On or before March 15 of each year beginning March 15, 2006,
the Company shall, 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 (an "Annual Independent
Public Accountant's Servicing Report") to the Master Servicer in a form
acceptable for filing with the Securities and Exchange Commission as an
exhibit to a Form 10-K to the effect that such firm has examined
certain documents and records relating to the servicing of mortgage
loans by the Company generally that include a sampling of the Mortgage
Loans, the provisions of Article IV and Sections 6.01 and 6.02 have
been complied with and, on the basis of such an examination conducted
substantially in accordance with the Uniform Single Attestation Program
for Mortgage Bankers, such servicing has been conducted in compliance
with this Agreement, 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.
j. The following Section 6.07 shall be added to the end
of Article VI:
Section 6.07 Annual Certification.
(a) For so long as the Mortgage Loans are being master serviced
by the Master Servicer, by March 15th of each year (or if not a Business
Day, the immediately preceding Business Day), or at any other time upon
thirty (30) days written request, the Company shall cause an officer of
the Company to execute and deliver a certificate to the Master Servicer
for the benefit of such Master Servicer and its officers, directors and
affiliates, certifying as to the following matters:
(i) Based on my knowledge, the information in the most recently
issued Company Annual Statement of Compliance, Annual Statement(s) of
Compliance, and all servicing reports, officer's certificates and other
information relating to the servicing of the Mortgage Loans submitted to
the Master Servicer by the Company 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 light of the circumstances
under which such statements were made, not misleading as of the date of
this certification;
(ii) The servicing information required to be provided to the
Master Servicer by the Company under this Agreement complies with the
requirements of the Agreement and has been provided to the Master
Servicer;
(iii) I am responsible for reviewing the activities performed by
the Company under the Agreement and based upon the review required by
this Agreement, and except as disclosed in the most recently issued
Company Annual Statement of Compliance, Annual Statement(s) of
Compliance or the most recently issued Annual Independent Public
Accountant's Servicing Report(s) submitted to the Master Servicer, the
Company has, as of the date of this certification, fulfilled all its
obligations under this Agreement; and
(iv) I have disclosed to the Master Servicer all significant
deficiencies relating to the Company'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 Agreement.
(b) The Company shall indemnify and hold harmless the Master
Servicer 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 Company or any of its
respective officers, directors, agents or affiliates of the obligations
of the Company under this Section 6.07 or the gross negligence, bad
faith or willful misconduct of the Company in connection with any such
breach. If the indemnification provided for herein is unavailable or
insufficient to hold harmless the Master Servicer, then the Company
agrees that it shall contribute to the amount paid or payable by the
Master Servicer as a result of the losses, claims, damages or
liabilities of the Master Servicer in such proportion as is appropriate
to reflect the relative fault of the Master Servicer on the one hand and
the Company on the other in connection with a breach of the Company's
obligations under this Section 6.07 or the Company's gross negligence,
bad faith or willful misconduct in connection with such breach.
k. Section 9.01 of the Servicing Agreement is hereby amended by adding
the word "or" at the end of clause I thereof and inserting the following as
clause J:
J. failure by the Company to duly 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 any party to this
Agreement or by any Master Servicer.
Notice Addresses.
The Assignee's address for purposes of all notices and correspondence
related to the Assigned Loans and this Assignment Agreement is:
U.S. Bank National Association,
as Trustee
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Services, PRIME 2005-5
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
The Assignor's address for purposes for all notices and correspondence
related to the Assigned Loans and this Assignment Agreement is:
EMC Mortgage Corporation
Mac ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Bear ▇▇▇▇▇▇▇ Mortgage Capital Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Company's address for purposes of all notices and correspondence related
to the Assigned Loans and this Assignment Agreement is:
if delivered personally,
Navy Federal Credit Union
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (___) ___-____
or if by mail to,
Navy Federal Credit Union
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
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.
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.
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.
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 or the Assignee may be merged or consolidated shall, without the
requirement for any further writing, be deemed the Company, the Assignor or the
Assignee, respectively, hereunder. Any Master Servicer shall be considered a
third party beneficiary of this Assignment Agreement, entitled to all the rights
and benefits accruing to any Master Servicer herein as if it were a direct party
to this Assignment Agreement.
This Assignment Agreement shall survive the conveyance of the Assigned
Loans, the assignment of the Servicing Agreement to the extent of the Assigned
Loans by the Assignor to the Assignee hereunder and the termination of the
Servicing Agreement.
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.
In the event that any provision of this Assignment Agreement conflicts
with any provision of the Servicing Agreement with respect to the Assigned
Loans, the terms of this Assignment Agreement shall control.
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.
EMC MORTGAGE CORPORATION
Assignor
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity but solely as Trustee for the holders of Prime
Mortgage Trust, Mortgage Pass-Through Certificates, Series 2005-5, as Assignee
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
NAVY FEDERAL CREDIT UNION
Company
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
ACKNOWLEDGED AND AGREED:
▇▇▇▇▇ FARGO BANK, N.A.
Master Servicer
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
ATTACHMENT 1
ASSIGNED LOAN SCHEDULE
(PROVIDED UPON REQUEST)
ATTACHMENT 2
SERVICING AGREEMENT
----------------------------------------
PHH MORTGAGE CORPORATION
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT This Assignment,
Assumption and Recognition Agreement (the "AAR Agreement") is made and entered
into as of December 29, 2005 (the "Closing Date"), among EMC Mortgage
Corporation (the "Assignor"), U.S. Bank National Association, not individually
but solely as trustee for the holders of Prime Mortgage Trust, Mortgage
Pass-Through Certificates, Series 2005-5 (the "Assignee") and PHH Mortgage
Corporation (formerly known as Cendant Mortgage Corporation) (the "Company").
WHEREAS, the Company originated the mortgage loans identified on Exhibit
A hereto (the "Mortgage Loans"); and
WHEREAS, the Mortgage Loans were subsequently transferred to various
trusts (the "Underlying Trusts") in connection with various securitizations; and
WHEREAS, pursuant to the Pooling and Servicing Agreements for the
Underlying Trusts (the "Underlying Pooling Agreements"), the Assignor had the
right to purchase the Mortgage Loans (the "Call Right") from the Underlying
Trusts following the occurrence of certain trigger events (the "Trigger Events")
set forth in the Underlying Pooling Agreements; and
WHEREAS, following the occurrence of the Trigger Events, the Assignor
exercised the related Call Right and purchased the Mortgage Loans from the
Underlying Trusts; and
WHEREAS, Assignor and Company desire that, from and after the date
hereof, all of the Mortgage Loans be serviced in accordance with the terms and
conditions of that certain Mortgage Loan Flow Purchase, Sale and Servicing
Agreement, dated as of April 26, 2001 (the "Purchase, Sale and Servicing
Agreement"), among the Assignor, the Company and ▇▇▇▇▇▇'▇ Gate Residential
Mortgage Trust.
NOW, THEREFORE, in consideration of the mutual promises and agreements
contained herein, and for good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, and of the mutual covenants herein
contained, the parties hereto hereby agree that the Mortgage Loans listed on
Exhibit A annexed hereto (the "Assigned Loans") shall be subject to the terms of
this AAR Agreement. Defined terms used in this Assignment and not otherwise
defined herein shall have the meaning set forth in the Purchase, Sale and
Servicing Agreement.
RECOGNITION OF THE ASSIGNOR
1. The Company recognizes Assignor as owner of the Mortgage Loans and
acknowledges that it is currently servicing the Mortgage Loans for the benefit
of Assignor. From and after the date hereof, the Company agrees it will service
the Mortgage Loans pursuant to the terms of the Purchase, Sale and Servicing
Agreement (as modified herein) which terms are incorporated herein by reference.
ASSIGNMENT AND ASSUMPTION
2. The Assignor specifically reserves and does not assign to the
Assignee hereunder any and all right, title and interest in, to and under and
all obligations of the Assignor with respect to any mortgage loans subject to
the Purchase, Sale and Servicing Agreement which are not the Mortgage Loans set
forth on EXHIBIT A attached hereto and are not the subject of this Assignment
REPRESENTATIONS; WARRANTIES AND COVENANTS
3. The Assignor warrants and represents to the Assignee and to the
Company as of the date hereof:
(a) Attached hereto as EXHIBIT B is a true and accurate copy of the
Purchase, Sale and Servicing 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) The Assignor was the lawful owner of the Mortgage Loans with
full right to transfer the Mortgage Loans and any and all of its
interests, rights and obligations under the Purchase, Sale and
Servicing Agreement as they relate to the Mortgage Loans, free
and clear from any and all claims and encumbrances; and upon the
transfer of the Mortgage Loans to the Assignee as contemplated
herein, the Assignee shall have good title to each and every
Mortgage Loan, as well as any and all of the Assignor's
interests, rights and obligations under the Purchase, Sale and
Servicing Agreement as they relate to the Mortgage Loans, free
and clear of any and all liens, claims and encumbrances;
(c) There are no offsets, counterclaims or other defenses available
to the Assignor with respect to the Mortgage Loans or the
Purchase, Sale and Servicing Agreement;
(d) The Assignor has no knowledge of, and has not received notice
of, any waivers under, or any modification of, any Mortgage
Loan;
(e) The 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 Mortgage Loans;
(f) The Assignor has full corporate power and authority to execute,
deliver and perform its obligations under this Assignment, and
to consummate the transactions set forth herein. The
consummation of the transactions contemplated by this Assignment
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 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 the Assignor of this
Assignment and the consummation by it of the transactions
contemplated hereby, have been duly authorized by all necessary
corporate action on part of the Assignor. This Assignment has
been duly executed and delivered by the Assignor and, upon the
due authorization, execution and delivery by the Assignee and
the Company, will constitute the valid and legally binding
obligation of the Assignor enforceable against the Assignor in
accordance with its terms except as enforceability may be
limited by bankruptcy, reorganization, insolvency, moratorium or
other similar laws now or hereafter in effect relating to
creditors' rights generally, and by general principles of equity
regardless of whether enforceability is considered in a
proceeding in equity or at law;
(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 the Assignor in connection with the
execution, delivery or performance by the Assignor of this
Assignment, or the consummation by it of the transactions
contemplated hereby. Neither the Assignor nor anyone acting on
its behalf has offered, transferred, pledged, sold or otherwise
disposed of the Mortgage Loans or any interest in the Mortgage
Loans, or solicited any offer to buy or accept a transfer,
pledge or other disposition of the Mortgage Loans, or any
interest in the Mortgage Loans or otherwise approached or
negotiated with respect to the Mortgage Loans, or any interest
in the Mortgage 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 Mortgage Loans under the Securities Act of
1933, as amended (the "1933 Act") or which would render the
disposition of the Mortgage Loans a violation of Section 5 of
the 1933 Act or require registration pursuant thereto; and
(h) The Assignor has received from the Company, and has delivered to
the Assignee, all documents required to be delivered to the
Assignor by the Company prior to the date hereof with respect to
the Mortgage Loans and has not received, and has not requested
from the Company, any additional documents.
4. The Assignee represents, warrants 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 hold the Mortgage
Loans on behalf of the holders of Prime Mortgage Trust, Mortgage
Pass-Through Certificates, Series 2005-5;
(b) The Assignee has full power and authority to execute, deliver
and perform under this Assignment, and to consummate the
transactions set forth herein. The consummation of the
transactions contemplated by this Assignment 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 bylaws, 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 and the consummation by it of the transactions
contemplated hereby, have been duly authorized by all necessary
corporate action of the Assignee. This Assignment 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 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;
(c) 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, or the consummation by it of the
transactions contemplated hereby; and
(d) The Assignee assumes all of the rights of the Purchaser under
the Purchase, Sale and Servicing Agreement with respect to the
Assigned Loans other than the right to enforce the obligations
of the Company under the Purchase, Sale and Servicing Agreement.
5. The Company warrants and represents to, and covenants with, Assignor
and Assignee as of the date hereof:
(a) Attached hereto as EXHIBIT B is a true and accurate copy of the
Purchase, Sale and Servicing 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) The Company is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its
incorporation, and the Company has all requisite power and
authority to service the Mortgage Loans and the Company has all
requisite power and authority to perform its obligations under
the Purchase, Sale and Servicing Agreement;
(c) The Company has full corporate power and authority to execute,
deliver and perform its obligations under this Assignment, and
to consummate the transactions set forth herein. The
consummation of the transactions contemplated by this Assignment
is in the ordinary course of each of the Company's business and
will not conflict with, or result in a breach of, any of the
terms, conditions or provisions of its charter or by-laws or any
legal restriction, or any material agreement or instrument to
which it 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 respective property is
subject. The execution, delivery and performance by the Company
of this Assignment and the consummation by it of the
transactions contemplated hereby, have been duly authorized by
all necessary corporate action on part of the Company. This
Assignment has been duly executed and delivered by the Company,
and, upon the due authorization, execution and delivery by
Assignor and Assignee, will constitute the valid and legally
binding obligation of the Company, enforceable against the
Company in accordance with its terms except as enforceability
may be limited by bankruptcy, reorganization, insolvency,
moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally, and by general
principles of equity regardless of whether enforceability is
considered in a proceeding in equity or at law;
(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 the Company of this
Assignment, or the consummation by it of the transactions
contemplated hereby;
(e) The Company shall establish a Collection Account and an Escrow
Account under the Purchase, Sale and Servicing Agreement in
favor of Assignee with respect to the Mortgage Loans separate
from the Collection Account and Escrow Account previously
established in favor of Assignor; and
(f) Neither this AAR Agreement nor any certification, statement,
report or other agreement, document or instrument furnished or
to be furnished by the Seller pursuant to this AAR Agreement
contains or will contain any materially untrue statement of fact
or omits or will omit to state a fact necessary to make the
statements contained therein not misleading.
6. Assignor hereby agrees to indemnify and hold the Assignee (and its
successors and assigns) harmless against any and all claims, losses, penalties,
fines, forfeitures, legal fees and related costs, judgments, and any other
costs, fees and expenses that Assignee (and its successors and assigns) may
sustain in any way related to any breach of the representations or warranties of
Assignor set forth in this AAR Agreement or the breach of any covenant or
condition contained herein.
7. The Company hereby acknowledges that ▇▇▇▇▇ Fargo Bank, N.A. (the
"Master Servicer") has been appointed as the master servicer of the Mortgage
Loans pursuant to the Pooling and Servicing Agreement, dated as of December 1,
2005, among Structured Asset Mortgage Investments II Inc., the Assignee, the
Master Servicer, ▇▇▇▇▇ Fargo Bank, N.A. as securities administrator and the
Assignor (the "Pooling Agreement"). The Company shall deliver all reports
required to be delivered under the Purchase, Sale and Servicing Agreement to:
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Client Manager PRIME 2005-5
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
RECOGNITION OF ASSIGNEE
8. From and after the date hereof the Company shall recognize the
Assignee as owner of the Mortgage Loans, and acknowledge that the Mortgage Loans
will be part of a REMIC. The Company will service the Mortgage Loans in
accordance with the Purchase, Sale and Servicing Agreement, but in no event in a
manner that would (i) cause the REMIC to fail to qualify as a REMIC or (ii)
result in the imposition of a tax upon the REMIC (including but not limited to
the tax on prohibited transactions as defined in Section 860F(a)(2) of the Code
and the tax on contributions to a REMIC set forth in Section 860G(d) of the
Code). It is the intention of the Assignor, the Company and the Assignee that
this AAR 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 Purchase, Sale and Servicing Agreement, which
amendment, modification, waiver or other alteration would in any way affect the
Mortgage Loans without the prior written consent of the Assignee.
In addition, the Company hereby acknowledges that from and after the
date hereof, the Mortgage Loans will be subject to the terms and conditions of
the Pooling Agreement pursuant to which the Master Servicer is required to
monitor the performance by the Company of its servicing obligations under the
Purchase, Sale and Servicing Agreement and has the right to enforce the
obligations of the Company under the Purchase, Sale and Servicing Agreement with
respect to the servicing of the Mortgage Loans. Such right will include, without
limitation, the right to terminate the Company under the Purchase, Sale and
Servicing Agreement as provided therein, the right to receive all remittances
required to be made by the Company under the Purchase, Sale and Servicing
Agreement, the right to receive all monthly reports and other data required to
be delivered by the Company under the Purchase, Sale and Servicing Agreement,
the right to examine the books and records of the Company, 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 to make all remittances required under the Purchase, Sale and
Servicing Agreement with respect to the Mortgage Loans to the Master Servicer
for the benefit of the Assignee in accordance with the following wire transfer
instructions:
Bear ▇▇▇▇▇▇▇ PRIME 2005-5 Master Servicer Collection Account
▇▇▇▇▇ Fargo Bank, N.A.
ABA # ▇▇▇▇▇▇▇▇▇
Account Name: SAS Clearing
Account # ▇▇▇▇▇▇▇▇▇▇
For Further Credit to: PRIME 2005-5, Account # ▇▇▇▇▇▇▇▇
It is the intention of the Assignor, the Company and the Assignee that
this AAR Agreement will be a separate and distinct servicing agreement between
the Assignee and the Company, to the extent of the Mortgage Loans, and 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
Purchase, Sale and Servicing Agreement which amendment, modification, waiver or
other alteration would in any way affect the Mortgage Loans without the prior
written consent of the Assignee. 9. Notwithstanding any term hereof to the
contrary, the execution and delivery of this AAR Agreement by the Assignee is
solely in its capacity as trustee for Prime Mortgage Trust, Mortgage
Pass-Through Certificates, Series 2005-5 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 AAR Agreement shall be limited solely to the assets it may
hold as trustee of Prime Mortgage Trust, Mortgage Pass-Through Certificates,
Series 2005-5.
MODIFICATION OF THE PURCHASE, SALE AND SERVICING AGREEMENT
11. The Assignor and the Company hereby amend the Purchase, Sale and
Servicing Agreement as follows:
The following definitions shall be added to Section 1.01 of the
Purchase, Sale and Servicing Agreement:
ASSIGNEE: U.S. Bank National Association, as trustee for the holders of
Prime Mortgage Trust, Mortgage Pass-Through Certificates, Series 2005-5.
MASTER SERVICER: ▇▇▇▇▇ Fargo Bank, N.A. or any successor thereto.
REMIC PROVISIONS: The provisions of the federal income tax law relating
to REMICs, which appear at Sections 860A through 860G of the Code, and
related provisions and regulations promulgated thereunder, as the
foregoing may be in effect from time to time.
▇▇▇▇ ▇▇: Structured Asset Mortgage Investments II Inc.
SECURITIES ADMINISTRATOR: ▇▇▇▇▇ Fargo Bank, N.A., or any successor
thereto.
TRUSTEE: U.S. Bank National Association.
The definition of Business Day is deleted in its entirety and replaced
with the following:
BUSINESS DAY: Any day other than: (i) a Saturday or Sunday, or (ii) a
legal holiday in the States of New York, Maryland or Minnesota, or (iii) a day
on which the Federal Reserve or banks in the States of New York, Maryland or
Minnesota are authorized or obligated by law or executive order to be closed.
The definition of Eligible Account is deleted in its entirety and
replaced with the following:
ELIGIBLE ACCOUNT: Any of (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company, the
long-term unsecured debt obligations and short-term unsecured debt obligations
of which (or, in the case of a depository institution or trust company that is
the principal subsidiary of a holding company, the debt obligations of such
holding company, so long as ▇▇▇▇▇'▇ is not a Rating Agency) are rated by each
Rating Agency in one of its two highest long-term and in its highest short-term
rating categories respectively, at the time any amounts are held on deposit
therein, or (ii) an account or accounts in a depository institution or trust
company in which such accounts are insured by the FDIC (to the limits
established by the FDIC) and the uninsured deposits in which accounts are
otherwise secured such that, as evidenced by an Opinion of Counsel delivered to
the Trustee and to each Rating Agency, the Certificateholders have a claim with
respect to the funds in such account or a perfected first priority security
interest against any collateral (which shall be limited to Permitted
Investments) securing such funds that is superior to claims of any other
depositors or creditors of the depository institution or trust company in which
such account is maintained, or (iii) a trust account or accounts maintained with
the corporate trust department of a federal or state chartered depository
institution or trust company having capital and surplus of not less than
$50,000,000, acting in its fiduciary capacity or (iv) any other account
acceptable to the Rating Agencies. Eligible Accounts may bear interest, and may
include, if otherwise qualified under this definition, accounts maintained with
the Trustee.
Section 3.02(33) shall be deleted in its entirety and replaced with the
following:
"(33) INSOLVENCY PROCEEDINGS; SERVICEMEMBERS CIVIL RELIEF ACT. The related
Mortgagor (1) is not the subject of any Insolvency Proceeding; and (2) has not
notified the Seller of any relief requested by or allowed to such Mortgagor
under the Servicemembers Civil Relief Act;"
The following paragraphs are added after the second paragraph of Section 5.13
of the Purchase, Sale and Servicing Agreement:
"Notwithstanding anything in this Agreement to the contrary, the
Servicer (a) shall not permit any modification with respect to any Mortgage Loan
that would change the Mortgage Interest Rate and (b) shall not (unless the
Mortgagor is in default with respect to the 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 any 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
the Trust Fund 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 which is not
contemplated under the terms of this Agreement, the Servicer will obtain an
Opinion of Counsel acceptable to the Trustee with respect to whether such action
could result in the imposition of a tax upon the REMIC (including but not
limited to the tax on prohibited transactions as defined in Section 860F(a)(2)
of the Code and the tax on contributions to a REMIC set forth in Section 860G(d)
of the Code) (either such event, an "Adverse REMIC Event"), and the Servicer
shall not take any such action or cause the Trust Fund to take any such action
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 the REMIC. The Servicer shall not enter
into any arrangement by which the REMIC will receive a fee or other compensation
for services nor permit the 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.
Any REO Property shall be disposed of by the Servicer before the close of the
third taxable year following the taxable year in which the Mortgage Loan became
an REO Property, unless the Servicer is otherwise directed by the Assignee."
Section 7.04 of the Purchase, Sale and Servicing Agreement shall be
deleted in its entirety and replaced with the following:
"Section 7.04 ANNUAL STATEMENT AS TO COMPLIANCE.
The Servicer will deliver to the Trustee, the Master Servicer, the
Securities Administrator, and ▇▇▇▇ ▇▇ not later than February 28 of each fiscal
year of the Servicer beginning in February 2006, an Officers' Certificate in a
form acceptable for filing with the Securities and Exchange Commission as an
exhibit to a Form 10-K stating, as to each signatory thereof, that (i) 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 (ii) to the best of such officers' knowledge, based on such review, the
Servicer has fulfilled all of its obligations under this Agreement throughout
such year, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to such officers and the nature
and status of cure provisions thereof." Section 7.05 shall be deleted, and
replaced with the following:
"Section 7.05 ANNUAL INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT'S SERVICING
REPORT; ANNUAL Certification.
(a) On or before February 28 of each year beginning February 28, 2006, the
Servicer at its expense shall cause a firm of independent public accountants
which is a member of the American Institute of Certified Public Accountants to
furnish a statement to the Purchaser in a form acceptable for filing with the
Securities and Exchange Commission as an exhibit to a Form 10-K to the effect
that such firm has examined certain documents and records relating to the
servicing of mortgage loans generally by the Servicer that include a sampling of
the Mortgage Loans, and, on the basis of such an examination conducted
substantially in accordance with the Uniform Single Attestation Program for
Mortgage Bankers, such servicing has been conducted in compliance with the
minimum servicing standards set forth in that program, 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. Copies of such statement
shall be provided by the Servicer to the Trustee and the Master Servicer upon
request.
(b) For so long as the Mortgage Loans are being master serviced by the Master
Servicer in a securitization transaction, by February 28th of each year (or if
not a Business Day, the immediately preceding Business Day), or at any other
time upon thirty (30) days written request, an officer of the Servicer shall
execute and deliver an Officer's Certificate to the Master Servicer for the
benefit of such Master Servicer and its affiliates, and in each case, its
officers, directors and affiliates, certifying as to the following matters:
(i) Based on my knowledge, the information in the Annual
Statement of Compliance, and the Annual Independent Public
Accountant's Servicing Report and all servicing reports,
officer's certificates and other information relating to the
servicing of the Mortgage Loans submitted to the Master Servicer
by the Servicer, does not contain any untrue statement of a
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 the Annual Statement of Compliance;
(ii) Based on my knowledge, the servicing information required
to be provided to the Master Servicer by the Servicer under the
Agreement has been provided to the Master Servicer;
(iii) I am responsible for reviewing the activities performed by
the Servicer under this Agreement and based upon the review
required by this Agreement, and except as disclosed in the
Annual Statement of Compliance, the Annual Independent Public
Accountant's Servicing Report, or otherwise disclosed in a
writing submitted to the Master Servicer, the Servicer has, as
of last day of the period covered by the Annual Statement of
Compliance, fulfilled its obligations under this Agreement; and
(iv) I have disclosed to the Master Servicer all significant
deficiencies relating to the Servicer's compliance with the
minimum servicing standards as determined in accordance with a
review conducted in compliance with the Uniform Single
Attestation Program for Mortgage Bankers as set forth in this
Agreement.
Notwithstanding the foregoing, in the event that as to any year a report on Form
10-K is not required to be filed with the Securities and Exchange Commission
with respect to the related securitization transaction for the prior calendar
year, then (i) the Master Servicer shall notify the Servicer of that fact, and
(ii) the Servicer shall not be required to provide the Officer's Certificate
described in this subsection (b).
(c) The Servicer shall indemnify and hold harmless the Master Servicer and its
affiliates, and in each case, its officers, directors and agents 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 Section 7.04 and Section 7.05 or the gross
negligence, bad faith or willful misconduct of the Servicer in connection
therewith. If the indemnification provided for herein is unavailable or
insufficient to hold harmless the Master Servicer, then the Servicer agrees that
it shall contribute to the amount paid or payable by the Master Servicer as a
result of the losses, claims, damages or liabilities of the Master Servicer in
such proportion as is appropriate to reflect the relative fault of the Master
Servicer on the one hand and the Servicer on the other in connection with a
breach of the Servicer's obligations under Section 7.04 and Section 7.05 or the
Servicer's gross negligence, bad faith or willful misconduct in connection
therewith."
The following Subsection shall be added to Section 10.01:
"(8) failure by the Servicer to duly perform, within the required time period,
its obligations under Section 7.04 and Section 7.05 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 Servicer by any party to this Servicing Agreement or by any master
servicer responsible for master servicing the Mortgage Loans pursuant to a
securitization of such Mortgage Loans;"
The following shall be added as Section 12.06(9) of the Purchase, Sale
and Servicing Agreement:
"For purposes of this Agreement, any Master Servicer shall be considered
a third party beneficiary to this Agreement entitled to all the rights and
benefits accruing to any Master Servicer herein as if it were a direct party to
this Agreement."
The following shall be added as the second paragraph of Section 9.01 of
the Agreement.
"The Master Servicer shall indemnify and hold harmless the Servicer and
its affiliates, and in each case, its officers, directors and agents 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 Master Servicer or any of its officers, directors,
agents or affiliates of its obligations in connection with the preparation,
filing and certification of any Form 10-K under Section 3.18 of the Pooling and
Servicing Agreement or the negligence, bad faith or willful misconduct of the
Master Servicer in connection therewith. In addition, the Master Servicer shall
indemnify and hold harmless the Servicer and its affiliates, and in each case,
its officers, directors and agents 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
any Servicer (as defined in the Pooling and Servicing Agreement), other than the
Servicer (as defined in this Agreement), of its obligations in connection with
any back-up certification (or any other back-up documents) to any certification
of any Form 10-K required to be provided by the Master Servicer, but solely to
the extent the Master Servicer receives amounts from such Servicer in connection
with any indemnification provided by such Servicer (in each case as defined in
the Pooling and Servicing Agreement) to the Master Servicer."
12. Notice Addresses. If to the Assignee:
U.S. Bank National Association,
as Trustee
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Services, PRIME 2005-5
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Assignor:
EMC Mortgage Corporation
MacArthur Ridge II
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Bear ▇▇▇▇▇▇▇ Mortgage Capital Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
If to the Company:
PHH Mortgage Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Mail Stop: SVMP
▇▇. ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇
If to the Securities Administrator:
▇▇▇▇▇ Fargo Bank, N.A.
▇.▇. ▇▇▇ ▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Client Manager PRIME 2005-5
or, if by overnight delivery to:
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: PRIME 2005-5
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
13. This Assignment 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.
14. From and after the date hereof, the Company, as servicer shall
recognize the Assignee as the owner of the Mortgage Loans, and the Company will
service the Mortgage Loans in accordance with the Purchase, Sale and Servicing
Agreement for the benefit of the Assignee, and shall look solely to the Assignee
for performance of the obligations of Purchaser under the Purchase, Sale and
Servicing Agreement with respect to the Mortgage Loans. From and after the date
hereof, the Assignee shall recognize the Company as the servicer of the Mortgage
Loans, and shall look solely to the Company for performance of the obligations
of the Servicer under the Purchase, Sale and Servicing Agreement with respect to
the Mortgage Loans.
15. This Assignment shall inure to the benefit of the successors and
assigns of the parties hereto. Any entity into which the Company, the Assignor
or the Assignee may be merged or consolidated shall, without the requirement for
any further writing, be deemed the Company, the Assignor or the Assignee,
respectively, hereunder.
16. No term or provision of this Assignment 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.
17. This Assignment shall survive the conveyance of the Mortgage Loans
and the assignment of the Purchase, Sale and Servicing Agreement to the extent
of the Mortgage Loans by the Assignor to the Assignee and the termination of the
Purchase, Sale and Servicing Agreement.
18. This Assignment may be executed simultaneously in any number of
counterparts, each of which counterparts shall be deemed to be an original, and
such counterparts shall constitute and be one and the same instrument.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties have caused this Assignment, Assumption
and Recognition Agreement to be executed by their duly authorized officers as of
the date first above written.
EMC MORTAGE CORPORATION U.S. BANK NATIONAL ASSOCIATION, NOT
THE ASSIGNOR INDIVIDUALLY BUT SOLELY AS TRUSTEE,
THE ASSIGNEE
By: By:
-------------------------- --------------------------
Name: Name:
-------------------------- --------------------------
Title: Title:
-------------------------- --------------------------
PHH MORTGAGE CORPORATION
By:
--------------------------
Name:
--------------------------
Title:
--------------------------
ACKNOWLEDGED AND AGREED
▇▇▇▇▇ FARGO BANK,
NATIONAL ASSOCIATION
By:
--------------------------
Name:
--------------------------
Title:
--------------------------
EXHIBIT A:
Mortgage Loan Schedule
EXHIBIT B:
1. Mortgage Loan Flow Purchase, Sale and Servicing Agreement, dated as of April
26, 20
---------------------------------------
SUNTRUST MORTGAGE, INC.
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
This is an Assignment, Assumption and Recognition Agreement (this "AAR
Agreement") made as of December 29, 2005, among EMC Mortgage Corporation (the
"Assignor"), U.S. Bank National Association, not individually but solely as
trustee for the holders of Prime Mortgage Trust, Mortgage Pass-Through
Certificates, Series 2005-5 (the "Assignee"), and SunTrust Mortgage, Inc. (the
"Company").
Whereas, the Company and the Assignor, as Purchaser entered into that
certain Purchase, Warranties and Servicing Agreement, dated as of January 1,
2002, as amended, modified or supplemented from time to time (the "Agreement")
pursuant to which the Assignor purchased and the Company sold the mortgage loans
identified on Attachment 1 hereto (the "Assigned Loans"), on a servicing
retained basis; and
Whereas, the Assigned Loans were subsequently transferred to a trust
(the "Underlying Trust") in connection with a securitization; and
Whereas, pursuant to the Pooling and Servicing Agreement for the
Underlying Trust (the "Underlying Pooling Agreement"), the Assignor had the
right to purchase the Assigned Loans (the "Call Right") from the Underlying
Trust following the occurrence of certain trigger events (the "Trigger Events")
set forth in the Underlying Pooling Agreement; and
Whereas, following the occurrence of the Trigger Events, the Assignor
exercised the Call Right and purchased the Assigned Loans from the Underlying
Trust; and
Whereas, Assignor and Company desire that, from and after the date
hereof, all of the Assigned Loans be serviced in accordance with the terms and
conditions of the Agreement.
In consideration of the mutual promises and agreements contained herein,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree that the Assigned Loans
shall be subject to the terms of this AAR Agreement. Capitalized terms used
herein but not defined shall have the meanings ascribed to them in the
Agreement.
RECOGNITION OF THE ASSIGNOR
10. Company recognizes Assignor as owner of the Assigned Loans and
acknowledges that it is currently servicing the Assigned Loans for the benefit
of Assignor. From and after the date hereof, Company agrees that it will service
the Assigned Loans pursuant to the terms of the Agreement (as modified herein)
which terms are incorporated herein by reference.
ASSIGNMENT AND ASSUMPTION
11. 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
Agreement. Assignor specifically reserves and does not assign to Assignee any
right, title and interest in, to or under any mortgage loans subject to the
Agreement other than those set forth on Attachment 1.
REPRESENTATIONS, WARRANTIES AND COVENANTS
12. 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
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) Assignor was 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 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
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 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 AAR Agreement, and to consummate
the transactions set forth herein. The consummation of the transactions
contemplated by this AAR Agreement is in the ordinary course of
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 AAR 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 AAR 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 AAR Agreement, or the consummation by
it of the transactions contemplated hereby. 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; and
(h) Assignor has received from Company, and has delivered to Assignee,
all documents required to be delivered to Assignor by Company prior to
the date hereof with respect to the Assigned Loans and has not received,
and has not requested from Company, any additional documents.
13. 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 hold the assigned loans on behalf of
the holders of Prime Mortgage Trust, Mortgage Pass-Through Certificates,
Series 2005-5;
(b) Assignee has full corporate power and authority to execute, deliver
and perform its obligations under this AAR Agreement, and to consummate
the transactions set forth herein. The consummation of the transactions
contemplated by this AAR Agreement is in the ordinary course of
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 AAR 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 AAR 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 AAR Agreement, or the consummation by
it of the transactions contemplated hereby; and
(d) The Assignee assumes for the benefit of each of Assignor and Company
all of Assignor's rights as "Purchaser" thereunder but solely with
respect to such Assigned Loans.
14. Company warrants and represents to, and covenant with, Assignor and
Assignee as of the date hereof:
(a) Attached hereto as Attachment 2 is a true and accurate copy of the
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 Agreement;
(c) Company has full corporate power and authority to execute, deliver
and perform its obligations under this AAR Agreement, and to consummate
the transactions set forth herein. The consummation of the transactions
contemplated by this AAR Agreement is in the ordinary course of
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 AAR 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 AAR 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;
(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 Company in connection with the execution, delivery
or performance by Company of this AAR Agreement, or the consummation by
it of the transactions contemplated hereby; and
(e) Company shall establish a Custodial Account and an Escrow Account
under the Agreement in favor of Assignee with respect to the Assigned
Loans separate from the Custodial Account and Escrow Account previously
established under Agreement in favor of Assignor.
15. Assignor hereby agrees to indemnify and hold the Assignee (and its
successors and assigns) harmless against any and all claims, losses,
penalties, fines, forfeitures, legal fees and related costs, judgments,
and any other costs, fees and expenses that Assignee (and its successors
and assigns) may sustain in any way related to any breach of the
representations or warranties of Assignor set forth in this AAR
Agreement or the breach of any covenant or condition contained herein.
RECOGNITION OF ASSIGNEE
16. From and after the date hereof, Company shall recognize Assignee as
owner of the Assigned Loans, and acknowledges that the Assigned Loans will be
part of a REMIC, and will service the Assigned Loans in accordance with the
Agreement but in no event in a manner that would (i) cause any REMIC to fail to
qualify as a REMIC or (ii) 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). It is the intention of Assignor, Company and
Assignee that this AAR 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 Agreement which amendment, modification,
waiver or other alteration would in any way affect the Assigned Loans without
the prior written consent of Assignee.
17. Notwithstanding any term hereof to the contrary, the execution and
delivery of this AAR Agreement by the Assignee is solely in its capacity as
trustee for Prime Mortgage Trust 2005-5 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 AAR Agreement shall be limited solely to the assets it may
hold as trustee of Prime Mortgage Trust 2005-5.
MODIFICATION OF THE AGREEMENT
18. The Company, Assignor and Assignee hereby amend the Agreement, with
respect to the Assigned Loans only, as follows:
The following definitions are added to Section 1.01 of the Agreement:
ASSIGNEE: U.S. Bank National Association, as trustee for the holders of
Prime Mortgage Trust, Mortgage Pass-Through Certificates, Series 2005-5.
MASTER SERVICER: ▇▇▇▇▇ Fargo Bank, N.A., or its successors in interest
who meet the qualifications of the Pooling and Servicing Agreement and
this Agreement.
NONRECOVERABLE ADVANCE: Any advance previously made by the Company
pursuant to Section 5.03 which, in the good faith judgment of the
Company, may not be ultimately recoverable by the Company from
Liquidation Proceeds or otherwise. The determination by the Company that
it has made a Nonrecoverable Advance, shall be evidenced by an Officer's
Certificate of the Company delivered to the Purchaser and the Master
Servicer and detailing the reasons for such determination.
POOLING AND SERVICING AGREEMENT: That certain pooling and servicing
agreement, dated as of December 1, 2005, among Structured Asset Mortgage
Investments II Inc., the Trustee, the Master Servicer, the Securities
Administrator and the Purchaser.
SECURITIES ADMINISTRATOR: ▇▇▇▇▇ Fargo Bank, N.A., or any successor
thereto.
TRUSTEE: U.S. Bank National Association, or its successor in interest,
or any successor trustee appointed as provided in the Pooling and
Servicing Agreement.
The definition of Business Day is deleted in its entirety and replaced with
the following:
BUSINESS DAY: Any day other than: (i) a Saturday or Sunday, or (ii) a
legal holiday in the States of New York, California, Maryland or
Minnesota, or (iii) a day on which banks in the States of New York,
California, Maryland or Minnesota are authorized or obligated by law or
executive order to be closed.
The following are added as the last three paragraphs of Section 4.01 of the
Agreement:
Notwithstanding anything in this Agreement to the contrary, the Servicer
(a) shall not permit any modification with respect to any Mortgage Loan
that would change the Mortgage Interest Rate and (b) shall not (unless
the Mortgagor is in default with respect to the 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 any
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 which is
not contemplated under the terms of this Agreement, the Servicer will
obtain an Opinion of Counsel acceptable to the Trustee 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 action or cause the Trust Fund to take any such action
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.
The period at the end of Subsection 4.05(vii) is deleted and replaced by
"; and" and the following is added as Subsection 4.05(ix) of the Agreement:
"(ix) to reimburse itself for any Nonrecoverable Advances;"
The second sentence of the first paragraph of Section 5.02 is deleted in
its entirety and replaced with the following:
With respect to each month, the corresponding individual loan
accounting report shall be received by the Purchaser no later than the
tenth calendar day prior to each related Remittance Date 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 shall contain
the following:
The following sentence shall be added to the end of the first paragraph
of Section 5.02 of the Agreement:
In addition, not later than seven (7) Business Days after each month
end, Seller shall furnish to the Master Servicer a report in the form
of Attachment 3 to the Assignment, Assumption and Recognition
Agreement, dated as of December 29, 2005, among Seller, EMC Mortgage
Corporation and U.S. Bank National Association with respect to
defaulted Mortgage Loans and a report in the form of Attachment 4 to
the Assignment, Assumption and Recognition Agreement, dated as of
December 29, 2005, among Seller, EMC Mortgage Corporation and U.S. Bank
National Association with respect to realized loss calculations.
Section 6.04 of the Agreement is deleted in its entirety and replaced
with the following:
Section 6.04 ANNUAL STATEMENT AS TO COMPLIANCE.
The Company will deliver to the Master Servicer and the
Purchaser on or before February 28 of each year, beginning with
February 28, 2006, an Officer's Certificate (each, an "Annual Statement
of Compliance") in a form acceptable for filing with the Securities and
Exchanged Commission as an exhibit to a Form 10-K stating that (i) a
review of the activities of the Company during the preceding calendar
year and of performance under this Agreement has been made under such
officers' supervision, (ii) the Company has fully complied with the
provisions of this Agreement and (iii) to the best of such officers'
knowledge, based on such review, the Company has fulfilled all of its
obligations under this Agreement throughout such year, or, if there has
been a default in the fulfillment of any such obligation, specifying
each such default known to such officer and the nature and status
thereof.
Section 6.05 of the Agreement is deleted in its entirety and replaced
with the following:
Section 6.05 ANNUAL INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS'
SERVICING REPORT.
On or before February 28 of each year, beginning with February
28, 2006, the Company at its expense shall cause a firm of independent
public accountants, which is a member of the American Institute of
Certified Public Accountants, to furnish to the Purchaser (each, an
"Annual Independent Public Accountant's Servicing Report"), the Master
Servicer and the Depositor a statement in a form acceptable for filing
with the Securities and Exchange Commission as an exhibit to a Form
10-K, to the effect that such firm has examined certain documents and
records relating to the Company's servicing of mortgage loans of the
same type as the Mortgage Loans, pursuant to this Agreement or
servicing agreements substantially similar to this Agreement, and that,
on the basis of such examination, conducted substantially in accordance
with the Uniform Single Audit Program for Mortgage Bankers, such firm
is of the opinion that the Company's servicing has been conducted in
compliance with this Agreement or such servicing agreements examined
pursuant to this Section 6.05 except for (a) such exceptions as such
firm shall believe to be immaterial, and (b) such other exceptions as
shall be set forth in such statement. The Company shall provide
Purchaser with copies of such statements.
The following is added as Section 6.07 of the Agreement:
Section 6.07 ANNUAL CERTIFICATION.
(a) For so long as the Mortgage Loans are being master serviced
by the Master Servicer in a securitization transaction, by February 28th
of each year (or if not a Business Day, the immediately preceding
Business day), or at any other time upon thirty (30) days written
request, an officer of the Company shall execute and deliver an
Officer's Certificate to the Master Servicer and the Depositor for the
benefit of such Master Servicer and Depositor and its officers,
directors and affiliates, certifying as to the following matters:
(i) Based on my knowledge, the information in the Annual
Statement of Compliance, the Annual Independent Public
Accountant's Servicing Report and all servicing reports,
officer's certificates and other information relating to the
servicing of the Mortgage Loans submitted to the Master Servicer
and Depositor 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 light of the
circumstances under which such statements were made, not
misleading as of the date of this certification;
(ii) The servicing information required to be provided
to the Master Servicer by the Company under this Agreement has
been provided to the Master Servicer;
(iii) I am responsible for reviewing the activities
performed by the Company under the Agreement and based upon the
review required by this Agreement, and except as disclosed in
the Annual Statement of Compliance or the Annual Independent
Public Accountant's Servicing Report submitted to the Master
Servicer, the Company has, as of the date of this certification
fulfilled its obligations under this Agreement; and
(iv) I have disclosed to the Master Servicer all
significant deficiencies relating to the Company'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 Agreement.
(b) The Company shall indemnify and hold harmless the Master
Servicer and the Depositor 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
Company or any of its officers, directors, agents or affiliates of its
obligations under this Section 6.07 or the negligence, bad faith or
willful misconduct of the Company in connection therewith. If the
indemnification provided for herein is unavailable or insufficient to
hold harmless the Master Servicer and the Depositor, then the Company
agrees that it shall contribute to the amount paid or payable by the
Master Servicer or the Depositor, as applicable, as a result of the
losses, claims, damages or liabilities of the Master Servicer or the
Depositor, as applicable, in such proportion as is appropriate to
reflect the relative fault of the Master Servicer or the Depositor, as
applicable, on the one hand and the Company on the other in connection
with a breach of the the Company's obligations under this Section 6.07
or the Company's negligence, bad faith or willful misconduct in
connection therewith.
The period at the end of Subsection 9.01(ix) is deleted and replaced
with ";or" and the following is added as Subsection 9.01(x) of the Agreement:
(x) failure by the Company to duly 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 any party to this
Agreement or by any master servicer responsible for master servicing the
Mortgage Loans pursuant to a securitization of such Mortgage Loans.
The following is added as Section 11.19 of the Agreement:
For purposes of this Agreement, any Master Servicer shall be
considered a third party beneficiary to this Agreement entitled to all
the rights and benefits accruing to any Master Servicer herein as if it
were a direct party to this Agreement.
MISCELLANEOUS
19. All demands, notices and communications related to the Assigned
Loans, the Agreement and this AAR 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,
SunTrust Mortgage, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
(b) In the case of Assignor,
EMC Mortgage Corporation
Mac ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Bear ▇▇▇▇▇▇▇ Mortgage Capital Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
(c) In the case of the Securities Administrator,
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Client Manager PRIME
2005-5
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
(d) In the case of Assignee,
U.S. Bank National Association,
as Trustee
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Services, PRIME
2005-5
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
20. Each party will pay any commissions it has incurred and the Assignor
shall pay the fees of its attorneys and the reasonable fees of the attorneys of
the Assignee and the Company in connection with the negotiations for,
documenting of and closing of the transactions contemplated by this AAR
Agreement.
21. This AAR 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.
22. No term or provision of this AAR Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced.
23. This AAR 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.
24. This AAR Agreement shall survive the conveyance of the Assigned
Loans, the assignment of the Agreement to the extent of the Assigned Loans by
Assignor to Assignee and the termination of the Agreement.
25. This AAR Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original and all such
counterparts shall constitute one and the same instrument.
26. In the event that any provision of this AAR Agreement conflicts with
any provision of the Agreement with respect to the Assigned Loans, the terms of
this AAR Agreement shall control.
27. The Company hereby acknowledges that ▇▇▇▇▇ Fargo Bank, N.A. has been
appointed as the master servicer of the Mortgage Loans pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2005, among Structured Asset
Mortgage Investments II Inc., the Assignor, ▇▇▇▇▇ Fargo Bank, N.A. and the
Assignee and therefore has the right to enforce all obligations of the Company
under the Agreement. Such right will include, without limitation, the right to
terminate the Company under the Agreement upon the occurrence of an event of
default thereunder, the right to receive all remittances required to be made by
the Company under the Agreement, the right to receive all monthly reports and
other data required to be delivered by the Company under the Agreement, the
right to examine the books and records of the Company, indemnification rights,
and the right to exercise certain rights of consent and approval relating to
actions taken by the Company. The Company shall make all distributions under the
Agreement to the Master Servicer by wire transfer of immediately available funds
to:
Bear ▇▇▇▇▇▇▇ PRIME 2005-5 Master Servicer Collection Account
▇▇▇▇▇ Fargo Bank, N.A.
ABA# ▇▇▇▇▇▇▇▇▇
SAS Clearing
Account # ▇▇▇▇▇▇▇▇▇▇
For Further Credit to: PRIME 2005-5, Account # ▇▇▇▇▇▇▇▇
and the Company shall deliver all reports required to be delivered under the
Agreement to the Assignee at the address set forth in Section 10 herein and to
the Master Servicer at:
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Client Manager PRIME 2005-5
IN WITNESS WHEREOF, the parties hereto have executed this AAR Agreement
as of the day and year first above written.
EMC MORTGAGE CORPORATION
Assignor
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
U.S. BANK NATIONAL ASSOCIATION, not individually but solely as Trustee,
Assignee
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
SUNTRUST MORTGAGE, INC.
Company
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
ACKNOWLEDGED:
▇▇▇▇▇ FARGO BANK, N.A.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
ATTACHMENT I
ASSIGNED LOAN SCHEDULE
[AVAILABLE UPON REQUEST]
ATTACHMENT 2
PURCHASE WARRANTIES AND SERVICING AGREEMENT, dated as of January 1, 2002,
between SunTrust Mortgage, Inc., and EMC Mortgage Corporation
ADDENDUM NO. 1 TO THE PURCHASE WARRANTIES AND SERVICING AGREEMENT, dated as of
March 13, 2002, between SunTrust Mortgage, Inc., and EMC Mortgage Corporation;
ADDENDUM NO. 2 TO THE PURCHASE WARRANTIES AND SERVICING AGREEMENT, dated as of
August 23, 2002, between SunTrust Mortgage, Inc., and EMC Mortgage Corporation;
AMENDMENT No. 3 TO THE PURCHASE WARRANTIES AND SERVICING AGREEMENT, dated as of
January 13, 2003, between SunTrust Mortgage, Inc., and EMC Mortgage Corporation;
AMENDMENT No. 4 TO THE PURCHASE WARRANTIES AND SERVICING AGREEMENT, dated as of
October 16, 2003, between SunTrust Mortgage, Inc., and EMC Mortgage Corporation;
AMENDMENT No. 5 TO THE PURCHASE WARRANTIES AND SERVICING AGREEMENT, dated as of
January 24, 2005, between SunTrust Mortgage, Inc., and EMC Mortgage Corporation.
[AVAILABLE UPON REQUEST]
ATTACHMENT 3
EXHIBIT : 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
MM/DD/YYYY is due to the servicer at the
end of processing cycle, as reported by
Servicer.
------------------------------------------------------------------------------------------------------------------------------------
LOAN_TYPE Loan Type (i.e. FHA, VA, Conv)
------------------------------------------------------------------------------------------------------------------------------------
BANKRUPTCY_FILED_DATE The date a particular bankruptcy claim was MM/DD/YYYY
filed.
------------------------------------------------------------------------------------------------------------------------------------
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 MM/DD/YYYY
has been approved by the courts
------------------------------------------------------------------------------------------------------------------------------------
BANKRUPTCY_DCHRG_DISM_DATE The Date The Loan Is Removed From MM/DD/YYYY
Bankruptcy. Either by Dismissal, Discharged
and/or a Motion For Relief Was Granted.
------------------------------------------------------------------------------------------------------------------------------------
LOSS_MIT_APPR_DATE The Date The Loss Mitigation Was Approved MM/DD/YYYY
By The Servicer
------------------------------------------------------------------------------------------------------------------------------------
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 MM/DD/YYYY
Scheduled To End/Close
------------------------------------------------------------------------------------------------------------------------------------
LOSS_MIT_ACT_COMP_DATE The Date The Loss Mitigation Is Actually MM/DD/YYYY
Completed
------------------------------------------------------------------------------------------------------------------------------------
FRCLSR_APPROVED_DATE The date DA Admin sends a letter to the
MM/DD/YYYY servicer with instructions to
begin foreclosure proceedings.
------------------------------------------------------------------------------------------------------------------------------------
ATTORNEY_REFERRAL_DATE Date File Was Referred To Attorney to MM/DD/YYYY
Pursue Foreclosure
------------------------------------------------------------------------------------------------------------------------------------
FIRST_LEGAL_DATE Notice of 1st legal filed by an Attorney MM/DD/YYYY
in a Foreclosure Action
------------------------------------------------------------------------------------------------------------------------------------
FRCLSR_SALE_EXPECTED_DATE The date by which a foreclosure sale is MM/DD/YYYY
expected to occur.
------------------------------------------------------------------------------------------------------------------------------------
FRCLSR_SALE_DATE The actual date of the foreclosure sale. MM/DD/YYYY
------------------------------------------------------------------------------------------------------------------------------------
FRCLSR_SALE_AMT The amount a property sold for at the 2 No commas(,) or dollar signs ($)
foreclosure sale.
------------------------------------------------------------------------------------------------------------------------------------
EVICTION_START_DATE The date the servicer initiates eviction of MM/DD/YYYY
the borrower.
------------------------------------------------------------------------------------------------------------------------------------
EVICTION_COMPLETED_DATE The date the court revokes legal possession
MM/DD/YYYY of the property from the
borrower.
------------------------------------------------------------------------------------------------------------------------------------
LIST_PRICE The price at which an REO property is 2 No commas(,) or dollar signs ($)
marketed.
------------------------------------------------------------------------------------------------------------------------------------
LIST_DATE The date an REO property is listed at a MM/DD/YYYY
particular price.
------------------------------------------------------------------------------------------------------------------------------------
OFFER_AMT The dollar value of an offer for an REO 2 No commas(,) or dollar signs ($)
property.
------------------------------------------------------------------------------------------------------------------------------------
OFFER_DATE_TIME The date an offer is received by DA Admin MM/DD/YYYY
or by the Servicer.
------------------------------------------------------------------------------------------------------------------------------------
REO_CLOSING_DATE The date the REO sale of the property is MM/DD/YYYY
scheduled to close.
------------------------------------------------------------------------------------------------------------------------------------
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 MM/DD/YYYY
performed.
------------------------------------------------------------------------------------------------------------------------------------
APPRAISAL_DATE The date the appraisal was done. MM/DD/YYYY
------------------------------------------------------------------------------------------------------------------------------------
CURR_PROP_VAL The current "as is" value of the property 2
based on brokers price opinion or
appraisal.
------------------------------------------------------------------------------------------------------------------------------------
REPAIRED_PROP_VAL The amount the property would be worth if 2
repairs are completed pursuant to a
broker's price opinion or appraisal.
------------------------------------------------------------------------------------------------------------------------------------
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 MM/DD/YYYY
With Mortgage Insurance Company.
------------------------------------------------------------------------------------------------------------------------------------
MI_CLAIM_AMT Amount of Mortgage Insurance Claim Filed No commas(,) or dollar signs ($)
------------------------------------------------------------------------------------------------------------------------------------
MI_CLAIM_PAID_DATE Date Mortgage Insurance Company Disbursed MM/DD/YYYY
Claim Payment
------------------------------------------------------------------------------------------------------------------------------------
MI_CLAIM_AMT_PAID Amount Mortgage Insurance Company Paid On 2 No commas(,) or dollar signs ($)
Claim
------------------------------------------------------------------------------------------------------------------------------------
POOL_CLAIM_FILED_DATE Date Claim Was Filed With Pool Insurance MM/DD/YYYY
Company
------------------------------------------------------------------------------------------------------------------------------------
POOL_CLAIM_AMT Amount of Claim Filed With Pool Insurance 2 No commas(,) or dollar signs ($)
Company
------------------------------------------------------------------------------------------------------------------------------------
POOL_CLAIM_PAID_DATE Date Claim Was Settled and The Check Was MM/DD/YYYY
Issued By The Pool Insurer
------------------------------------------------------------------------------------------------------------------------------------
POOL_CLAIM_AMT_PAID Amount Paid On Claim By Pool Insurance 2 No commas(,) or dollar signs ($)
Company
------------------------------------------------------------------------------------------------------------------------------------
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 ($)
------------------------------------------------------------------------------------------------------------------------------------
FHA_PART_B_CLAIM_PAID_DATE Date HUD Disbursed Part B Claim Payment MM/DD/YYYY
------------------------------------------------------------------------------------------------------------------------------------
FHA_PART_B_CLAIM_PAID_AMT Amount HUD Paid on Part B Claim 2 No commas(,) or dollar signs ($)
------------------------------------------------------------------------------------------------------------------------------------
VA_CLAIM_FILED_DATE Date VA Claim Was Filed With the Veterans MM/DD/YYYY
Admin
------------------------------------------------------------------------------------------------------------------------------------
VA_CLAIM_PAID_DATE Date Veterans Admin. Disbursed VA Claim MM/DD/YYYY
Payment
------------------------------------------------------------------------------------------------------------------------------------
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
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
----------------------------------------------------------------------
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
----------------------------------------------------------
ATTACHMENT 4
EXHIBIT: 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.
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.
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 ( ).
EXHIBIT 3A: 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
(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)
ESCROW DISBURSEMENT DETAIL
----------------------------------------------------------------------------------------------------------------------
TYPE DATE PAID PERIOD OF TOTAL PAID BASE AMOUNT PENALTIES INTEREST
COVERAGE
(TAX /INS.)
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
--------------------------------------
WASHINGTON MUTUAL BANK
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (the "Assignment and
Assumption Agreement"), dated as of December 29, 2005, is by and among EMC
Mortgage Corporation, a Delaware corporation (the "Assignor"), U.S. Bank
National Association, not individually but solely as trustee for the holders of
Prime Mortgage Trust, Mortgage Pass-Through Certificates, Series 2005-5 (the
"Assignee") and Washington Mutual Bank (the "Company").
Whereas, the Company originated the mortgage loans identified on Exhibit
A hereto (the "Mortgage Loans"); and
Whereas, the Mortgage Loans were subsequently transferred to a trust
(the "Underlying Trust") in connection with a securitization; and
Whereas, pursuant to the Pooling and Servicing Agreement for the
Underlying Trust (the "Underlying Pooling Agreement"), the Assignor had the
right to purchase the Mortgage Loans (the "Call Right") from the Underlying
Trust following the occurrence of certain trigger events (the "Trigger Events")
set forth in the Underlying Pooling Agreement; and
Whereas, following the occurrence of the Trigger Events, the Assignor
exercised the Call Right and purchased the Mortgage Loans from the Underlying
Trust; and
Whereas, Assignor and Company desire that, from and after the date
hereof, all of the Mortgage Loans be serviced in accordance with the terms and
conditions of that certain Servicing Agreement, dated as of April 1, 2005,
between Assignor and Company (the "Servicing Agreement").
In consideration of the mutual promises and agreements contained herein,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree that the Mortgage Loans
shall be subject to the terms of this Assignment and Assumption Agreement.
Capitalized terms used herein but not otherwise defined shall have the meanings
assigned to them in the Servicing Agreement.
RECOGNITION OF THE ASSIGNOR
1. Company recognizes Assignor as owner of the Mortgage Loans and
acknowledges that it is currently servicing the Mortgage Loans for the
benefit of Assignor. From and after the date hereof, Company agrees
that it will service the Mortgage Loans pursuant to the terms of the
Servicing Agreement (as modified herein) which terms are incorporated
herein by reference.
ASSIGNMENT AND ASSUMPTION
2. Except as expressly provided for herein, the Assignor hereby grants,
transfers and assigns to the Assignee all of its right, title and interest in,
to and under (a) the Mortgage Loans and (b) the Servicing Agreement with respect
to the Mortgage Loans; provided, however, that the Assignor is not assigning to
the Assignee any of its right, title and interest, to and under the Servicing
Agreement with respect to any mortgage loan other than the Mortgage Loans listed
on EXHIBIT A. Except as is otherwise expressly provided herein, the Assignor
makes no representations, warranties or covenants to the Assignee and the
Assignee acknowledges that the Assignor has no obligations to the Assignee under
the terms of the Servicing Agreement or otherwise relating to the transaction
contemplated herein (including, but not limited to, any obligation to indemnify
the Assignee).
Assignor acknowledges and agrees that upon execution of this Agreement,
the Assignee shall become the "Owner" under the Servicing Agreement with respect
to the Mortgage Loans, and all representations, warranties and covenants by the
"Servicer" to the "Owner" under the Servicing Agreement with respect to the
Mortgage Loans including, but not limited to, the rights to receive
indemnification, shall accrue to Assignee by virtue of this Agreement on and
after the date of this Assignment and Assumption Agreement.
REPRESENTATIONS WARRANTIES AND COVENANTS
3. The Assignor warrants and represents to, and covenants with, the
Assignee and the Company that as of the date hereof:
(a) Attached hereto as EXHIBIT B is a true and accurate copy of the
Servicing 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) The Assignor was the lawful owner of the Mortgage Loans with
full right to transfer the Mortgage Loans and any and all of its
interests, rights and obligations under the Servicing Agreement
as they relate to the Mortgage Loans, free and clear from any
and all claims and encumbrances; and upon the transfer of the
Mortgage Loans to the Assignee as contemplated herein, Assignee
shall have good title to each and every Mortgage Loan, as well
as any and all of the Assignee's interests, rights and
obligations under the Servicing Agreement as they relate to the
Mortgage Loans, free and clear of any and all liens, claims and
encumbrances;
(c) There are no offsets, counterclaims or other defenses available
to the Company with respect to the Mortgage Loans or the
Servicing Agreement;
(d) The Assignor has no knowledge of, and has not received notice
of, any waivers under, or any modification of, any Mortgage
Loan;
(e) The 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 Mortgage Loans;
(f) The Assignor has full corporate power and authority to execute,
deliver and perform its obligations under this Assignment and
Assumption Agreement, and to consummate the transactions set
forth herein. The consummation of the transactions contemplated
by this Assignment and Assumption 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 Assignor or its property is subject. The
execution, delivery and performance by the Assignor of this
Assignment and Assumption Agreement and the consummation by it
of the transactions contemplated hereby, have been duly
authorized by all necessary corporate action on part of the
Assignor. This Assignment and Assumption Agreement has been duly
executed and delivered by the Assignor and, upon the due
authorization, execution and delivery by the Assignee and the
Company, will constitute the valid and legally binding
obligation of the Assignor enforceable against the Assignor in
accordance with its terms except as enforceability may be
limited by bankruptcy, reorganization, insolvency, moratorium or
other similar laws now or hereafter in effect relating to
creditors' rights generally, and by general principles of equity
regardless of whether enforceability is considered in a
proceeding in equity or at law;
(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 the Assignor in connection with the
execution, delivery or performance by the Assignor of this
Assignment and Assumption Agreement, or the consummation by it
of the transactions contemplated hereby. Neither the Assignor
nor anyone acting on its behalf has offered, transferred,
pledged, sold or otherwise disposed of the Mortgage Loans or any
interest in the Mortgage Loans, or solicited any offer to buy or
accept a transfer, pledge or other disposition of the Mortgage
Loans, or any interest in the Mortgage Loans or otherwise
approached or negotiated with respect to the Mortgage Loans, or
any interest in the Mortgage 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 Mortgage Loans
under the Securities Act of 1933, as amended (the "1933 Act") or
which would render the disposition of the Mortgage Loans a
violation of Section 5 of the 1933 Act or require registration
pursuant thereto; and
(h) The Assignor has received from the Company, and has delivered to
the Assignee, all documents required to be delivered to Assignor
by the Company prior to the date hereof with respect to the
Mortgage Loans and has not received, and has not requested from
the Company, any additional documents.
4. The Assignee warrants and represents to, and covenants with, Assignor
and Company as of the date hereof:
(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 hold the Mortgage
Loans on behalf of the holders of Prime Mortgage Trust, Mortgage
Pass-Through Certificates, Series 2005-5;
(b) The Assignee has full corporate power and authority to execute,
deliver and perform under this Assignment and Assumption
Agreement, and to consummate the transactions set forth herein.
The consummation of the transactions contemplated by this
Assignment and Assumption 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 and Assumption
Agreement and the consummation by it of the transactions
contemplated hereby, have been duly authorized by all necessary
corporate action on part of the Assignee. This Assignment and
Assumption 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 Assignee enforceable against the
Assignee in accordance with its terms except as enforceability
may be limited by bankruptcy, reorganization, insolvency,
moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally, and by general
principles of equity regardless of whether enforceability is
considered in a proceeding in equity or at law;
(c) No consent, approval, order or authorization of, or declaration,
filing or registration with, any governmental entity is required
to be obtained or made by the Assignee in connection with the
execution, delivery or performance by the Assignee of this
Assignment and Assumption Agreement, or the consummation by it
of the transactions contemplated hereby; and
(d) The Assignee assumes for the benefit of each of Assignor and
Company all of Assignor's rights and obligations as "Owner"
under the Servicing Agreement but solely with respect to such
Mortgage Loans; provided however, that Assignee is assuming such
obligations solely in its capacity as trustee for Prime Mortgage
Trust, Mortgage Pass-Through Certificates, Series 2005-5 (the
"Trust") and not individually. Under no circumstances shall the
Trustee be personally liable for the payment of any indebtedness
or expenses assumed by it hereunder on behalf of the Trust or be
personally liable for the performance, nonperformance, breach or
failure of any such obligation undertaken by it on behalf of the
Trust under this Assignment and Assumption Agreement and any
recourse against the Assignee in respect to such obligations
shall be limited solely to the assets it may hold as trustee of
Prime Mortgage Trust, Mortgage Pass-Through Certificates, Series
2005-5.
5. The Company warrants and represents to, and covenants with, the
Assignor and the Assignee as of the date hereof:
(a) Attached hereto as EXHIBIT B is a true and accurate copy of the
Servicing 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) The 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 Mortgage Loans and otherwise to perform its
obligations under the Servicing Agreement;
(c) The Company has full corporate power and authority to execute,
deliver and perform its obligations under this Assignment and
Assumption Agreement, and to consummate the transactions set
forth herein. The consummation of the transactions contemplated
by this Assignment and Assumption 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 and Assumption Agreement and the consummation by it
of the transactions contemplated hereby, have been duly
authorized by all necessary corporate action on part of the
Company. This Assignment and Assumption Agreement has been duly
executed and delivered by the 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 the Company in accordance with its
terms except as enforceability may be limited by bankruptcy,
reorganization, insolvency, moratorium or other similar laws now
or hereafter in effect relating to creditors' rights generally,
and by general principles of equity regardless of whether
enforceability is considered in a proceeding in equity or at
law;
(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 the Company in connection with the
execution, delivery or performance by the Company of this
Assignment and Assumption Agreement, or the consummation by it
of the transactions contemplated hereby; and
(e) Each of the representations and warranties made by the Company
in Section 5.7 of the Servicing Agreement are true and correct
as of the date hereof.
6. Assignor hereby agrees to indemnify and hold the Assignee (and its
successors and assigns) harmless against any and all claims, losses, penalties,
fines, forfeitures, legal fees and related costs, judgments, and any other
costs, fees and expenses that Assignee (and its successors and assigns) may
sustain in any way related to any breach of the representations or warranties of
Assignor set forth in this Assignment and Assumption Agreement or the breach of
any covenant or condition contained herein.
7. Notwithstanding any term hereof to the contrary, the execution and
delivery of this Assignment and Assumption Agreement by the Assignee is solely
in its capacity as trustee for Prime Mortgage Trust, Mortgage Pass-Through
Certificates, Series 2005-5 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 Assignment and Assumption Agreement shall be limited solely to the
assets it may hold as trustee of Prime Mortgage Trust, Mortgage Pass-Through
Certificates, Series 2005-5.
8. The Company shall establish an Account (entitled "Washington Mutual
Bank, as Servicer, in trust for U.S. Bank National Association, as trustee for
Prime Mortgage Trust, Mortgage Pass-Through Certificates, 2005-5") and an Escrow
Account (entitled "Washington Mutual Bank, as Servicer, in trust for Prime
Mortgage Trust, Mortgage Pass-Through Certificates, 2005-5") with respect to the
Mortgage Loans, which accounts shall be separate from the Account and Escrow
Account previously established in favor of the Assignor.
9. The Company hereby acknowledges that ▇▇▇▇▇ Fargo Bank, N.A. and any
successor thereto (the "Master Servicer"), has been appointed as master servicer
of the Mortgage Loans pursuant to the Pooling and Servicing Agreement dated as
of December 1, 2005, among Structured Asset Mortgage Investments II Inc. ("▇▇▇▇
▇▇"), the Assignee, the Master Servicer and the Assignor, that this Assignment
and Assumption Agreement constitutes a Master Servicing Agreement under Section
8.2(a) of the Servicing Agreement with respect to the Mortgage Loans and that
the Master Servicer has the right to enforce all obligations of the Company
under the Servicing Agreement.
RECOGNITION OF ASSIGNEE
10. From and after the date hereof, the Company shall recognize the
Assignee as owner of the Mortgage Loans, and acknowledges that the Mortgage
Loans are intended to be part of a REMIC, and will service the Mortgage Loans in
accordance with the Servicing Agreement. It is the intention of the Assignor,
the Company and the Assignee that this Assignment and Assumption 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
Servicing Agreement which amendment, modification, waiver or other alteration
would in any way affect the Mortgage Loans without the prior written consent of
the Assignee.
MODIFICATION OF SERVICING AGREEMENT
11. The Company and Assignor hereby amend the Servicing Agreement,
solely to the extent it relates to the Mortgage Loans, as follows:
(a) The definition of Business Day is deleted in its entirety and
replace with the following definition:
BUSINESS DAY: Any day other than (i) a Saturday or Sunday or (ii) a day
on which banking or savings and loan institutions in the States of Washington,
California, New York, Maryland and Minnesota are authorized or obligated by law
or executive order to be closed.
(b) Section 4.4(c) of the Servicing Agreement shall be deleted in its
entirety and replaced with the following:
The Servicer agrees to indemnify and hold harmless each of the
Owner, the Master Servicer, each Person, if any, who "controls" the
Owner or the Master Servicer within the meaning of the Securities Act of
1933, as amended, and their respective officers, directors and employees
(collectively, the "Indemnitees") against any and all losses, penalties,
fines, forfeitures, legal fees and related costs, judgments and any
other costs, fees and expenses that such Indemnitee may sustain in
direct connection with or arising out of third party claims based on (i)
the failure of the Servicer to deliver or cause to be delivered when
required any Officer's Certificate required pursuant to Section 4.4(a)
or Section 4.4(b), or the accountants' statement and copy of the
Management Assertion required pursuant to Section 4.5, or (ii) any
material misstatement or omission in any certification given pursuant to
Section 302(a) of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and Rules 13a-14 and
15d-14 promulgated by the Securities and Exchange Commission thereunder
made in reliance on any material misstatement or omission contained in
any Officer's Certificate provided pursuant to Section 4.4(a) or Section
4.4(b), or (iii) any material misstatement or omission contained in the
Management Assertion delivered in accordance with Section 4.5. If the
indemnification provided for herein is unavailable or insufficient to
hold harmless any Indemnitee, then the Servicer agrees that it shall
contribute to the amount paid or payable by the Indemnitee as a result
of the losses, claims, damages or liabilities of the Indemnitee arising
out of clauses (i), (ii) or (iii) of the preceding sentence in such
proportion as is appropriate to reflect the relative fault of the
Indemnitee on the one hand and the Servicer on the other.
(c) Section 4.4(d) of the Servicing Agreement shall be deleted in its
entirety and replaced with the following:
For purposes of paragraph (c), "third party claims" shall
include claims brought against an Indemnitee by any agent or affiliate
of such Indemnitee where such claims arise out of, or are based on, (A)
the failure of the Servicer to deliver or cause to be delivered when
required any Officer's Certificate required pursuant to paragraphs (a)
or (b) of this Section 4.4 or (B) any material misstatement or omission
in any certification pursuant to Section 302(a) of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act of 2002 and Rules 13a-14 and 15d-14 promulgated by the Securities
and Exchange Commission thereunder made in reliance on any material
misstatement or omission contained in any Officer's Certificate provided
pursuant to paragraphs (a) or (b) of this Section 4.4, or (C) any
material misstatement or omission contained in the Management Assertion
delivered in accordance with Section 4.5.
(d) Section 4.5 of the Servicing Agreement shall be deleted in its
entirety and replaced with the following:
Not later than March 15 of each year (or if such day is not a
Business Day, the next succeeding Business Day), the Servicer will (i)
at its expense, cause a firm of independent public accountants that is a
member of the American Institute of Certified Public Accountants to
furnish to the Master Servicer, in a form acceptable for filing with the
Securities and Exchange Commission as an exhibit to a Form 10-K, a
statement to the effect that, based on an examination conducted by such
firm in compliance with the Uniform Single Attestation Program for
Mortgage Bankers ("USAP"), the assertion of management (the "Management
Assertion") of the Servicer regarding compliance with the minimum
servicing standards identified in the USAP is fairly stated in all
material respects, except for (A) such exceptions as such firm shall
believe to be immaterial, and (B) such other exceptions as shall be set
forth in such statement or such Management Assertion, and (ii) furnish
to the Master Servicer a separate copy of the related Management
Assertion, which shall be in the same form as provided to the firm of
independent public accountants referred to in clause (i) of this Section
4.5.
MISCELLANEOUS
12. The Company, as servicer of the Mortgage Loans, in the performance
of its duties under the Servicing Agreement with respect to such Mortgage Loans,
shall treat ▇▇▇▇▇ Fargo Bank, N.A., and any successor thereto as "Master
Servicer" in accordance with Section 8.2 thereof, and shall remit all required
remittances and furnish all reports and other information required to be
furnished by it under the Servicing Agreement to the Master Servicer. The Master
Servicer shall be entitled to terminate the rights and obligations of the
Company with respect to the Mortgage Loans under and in accordance with the
provisions of the Servicing Agreement. All notices and reports required to be
delivered to the Master Servicer shall be delivered to the Master Servicer at
the following address (until the Company is notified otherwise in writing by the
Master Servicer):
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Client Manager PRIME 2005-5
The Company shall also deliver a copy of each such notice and report to the
Assignee at the address set forth in Section 13 herein.
All remittances required to be made to the Master Servicer shall be made
on a scheduled/scheduled basis to the following wire transfer account:
Bear ▇▇▇▇▇▇▇ PRIME 2005-5 Master Servicer Collection Account
▇▇▇▇▇ Fargo Bank, N.A.
ABA# ▇▇▇▇▇▇▇▇▇
SAS Clearing
Account # ▇▇▇▇▇▇▇▇▇▇
For Further Credit to: PRIME 2005-5, A/C# 17218700
The parties hereto acknowledge that ▇▇▇▇▇ Fargo Bank, N.A. (the
"Custodian") will act as custodian of the Collateral Files for the holders of
Prime Mortgage Trust, Mortgage Pass-Through Certificates, Series 2005-5 pursuant
to the Custodial Agreement, dated as of December 29, 2005, among the Assignee,
▇▇▇▇ ▇▇, the Custodian and the Master Servicer. The Custodian will store the
Collateral Files at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇.
13. Notices:
The Assignor's address for purposes of all notices and correspondence
related to the Mortgage Loans and this Assignment and Assumption Agreement is:
EMC Mortgage Corporation
Mac ▇▇▇▇▇▇ ▇▇▇▇▇ Illinois
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, President
With a copy to:
Bear ▇▇▇▇▇▇▇ Mortgage Capital Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
The Assignee's address for purposes of all notices and correspondence
related to the Mortgage Loans and this Assignment and Assumption Agreement is:
U.S. Bank National Association, as Trustee ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: Corporate
Trust Services, PRIME 2005-5 Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
The Company's address for purposes of all notices and correspondence
related to the Mortgage Loans and this Assignment and Assumption Agreement is:
Washington Mutual Bank
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (Mail Stop N080108)
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Vice President of Investor Reporting
with a copy to:
Washington Mutual Bank
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
14. Each party will pay any commissions it has incurred and the Assignor
shall pay the fees of its attorneys and the reasonable fees of the attorneys of
the Assignee and the Company in connection with the negotiations for,
documenting of and closing of the transactions contemplated by this Assignment
and Assumption Agreement.
15. This Assignment and Assumption 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.
16. No term or provision of this Assignment and Assumption 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.
17. This Assignment and Assumption 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.
18. This Assignment and Assumption Agreement shall survive the
conveyance of the Mortgage Loans and the assignment of Servicing Agreement to
the extent of the Mortgage Loans by Assignor to Assignee and the termination of
the Servicing Agreement.
19. This Assignment and Assumption 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.
20. In the event that any provision of this Assignment and Assumption
Agreement conflicts with any provision of the Servicing Agreement with respect
to the Mortgage Loans, the terms of this Assignment and Assumption Agreement
shall control.
IN WITNESS WHEREOF, the parties have caused this Assignment and
Assumption Agreement to be executed by their duly authorized officers as of the
date first above written.
U.S. BANK NATIONAL
ASSOCIATION, not in its
individual capacity but
solely as Trustee for the
holders of Prime Mortgage
Trust, Mortgage
Pass-Through Certificates,
Series 2005-5
By:
------------------------
Name:
Title:
EMC MORTGAGE CORPORATION
By:
------------------------
Name:
Title:
WASHINGTON MUTUAL BANK
By:
------------------------
Name:
Title:
ACKNOWLEDGED AND AGREED:
▇▇▇▇▇ FARGO BANK, N.A.
By:
------------------------
Name:
Title:
Exhibit A
Mortgage Loans
EXHIBIT B
Servicing Agreement, dated as of April 1, 2005 by and between Washington Mutual
Bank and EMC Mortgage Corporation.
▇▇▇▇▇ FARGO BANK, N.A.
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (the "Assignment and
Assumption Agreement"), dated as of December 29, 2005, by EMC Mortgage
Corporation, a Delaware corporation (the "Assignor"), U.S. Bank National
Association, not individually but solely as trustee for the holders of Prime
Mortgage Trust, Mortgage Pass-Through Certificates, Series 2005-5 (the
"Assignee") and ▇▇▇▇▇ Fargo Bank, N.A. (the "Company").
Whereas, various companies originated the mortgage loans identified on
EXHIBIT A hereto (the "Mortgage Loans"); and
Whereas, the Mortgage Loans were subsequently transferred to a trust
(the "Underlying Trust") in connection with a securitization; and
Whereas, pursuant to the Pooling and Servicing Agreement for the
Underlying Trust (the "Underlying Pooling Agreement"), the Assignor had the
right to purchase the Mortgage Loans (the "Call Right") from the Underlying
Trust following the occurrence of certain trigger events (the "Trigger Events")
set forth in the Underlying Pooling Agreement; and
Whereas, following the occurrence of the Trigger Events, the Assignor
exercised the Call Right and purchased the Mortgage Loans from the Underlying
Trust; and
Whereas, the Assignor and the Company desire that, from and after the
date hereof, all of the Mortgage Loans be serviced in accordance with the terms
and conditions of that certain Amended and Restated Master Seller's Warranties
and Servicing Agreement dated as of November 1, 2005 (the "Warranties and
Servicing Agreement"), between the Assignor and the Company.
In consideration of the mutual promises and agreements contained herein, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree that the Mortgage Loans shall
be subject to the terms of this Assignment and Assumption Agreement. Capitalized
terms used herein but not otherwise defined shall have the meanings assigned to
them in the Warranties and Servicing Agreement.
RECOGNITION OF THE ASSIGNOR
1. Company recognizes Assignor as owner of the Mortgage Loans and
acknowledges that it is currently servicing the Mortgage Loans for the
benefit of Assignor. From and after the date hereof, Company agrees
that it will service the Mortgage Loans pursuant to the terms of the
Warranties and Servicing Agreement (as modified herein) which terms are
incorporated herein by reference.
ASSIGNMENT AND ASSUMPTION
2. Except as expressly provided for herein, the Assignor hereby grants,
transfers and assigns to the Assignee all of its right, title and interest
in, to and under (a) the Mortgage Loans and (b) the Warranties and Servicing
Agreement with respect to the Mortgage Loans; provided, however, that the
Assignor is not assigning to the Assignee any of its right, title and
interest, to and under the Warranties and Servicing Agreement with respect to
any mortgage loan other than the Mortgage Loans listed on EXHIBIT A. Except
as is otherwise expressly provided herein, the Assignor makes no
representations, warranties or covenants to the Assignee and the Assignee
acknowledges that the Assignor has no obligations to the Assignee under the
terms of the Warranties and Servicing Agreement or otherwise relating to the
transaction contemplated herein (including, but not limited to, any
obligation to indemnify the Assignee).
REPRESENTATIONS WARRANTIES AND COVENANTS
3. The Assignor warrants and represents to, and covenants with, the
Assignee that as of the date hereof:
(a) Attached hereto as EXHIBIT B is a true and accurate copy of the
Warranties and Servicing Agreement, which agreement is in full force
and effect as of the date hereof and the provisions of which have not
been waived, further amended or modified in any respect, nor has any
notice of termination been given thereunder;
(b) The Assignor is the lawful owner of the Mortgage Loans with full
right to transfer the Mortgage Loans and any and all of its interests,
rights and obligations under the Warranties and Servicing Agreement as
they relate to the Mortgage Loans, free and clear from any and all
claims and encumbrances; and upon the transfer of the Mortgage Loans to
the Assignee as contemplated herein, Assignee shall have good title to
each and every Mortgage Loan, as well as any and all of the Assignee's
interests, rights and obligations under the Warranties and Servicing
Agreement as they relate to the Mortgage Loans, free and clear of any
and all liens, claims and encumbrances;
(c) There are no offsets, counterclaims or other defenses available to
the Company with respect to the Mortgage Loans or the Warranties and
Servicing Agreement;
(d) The Assignor has no knowledge of, and has not received notice of,
any waivers under, or any modification of, any Mortgage Loan;
(e) The 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
Mortgage Loans;
(f) The Assignor has full corporate power and authority to execute,
deliver and perform its obligations under this Assignment and
Assumption Agreement, and to consummate the transactions set forth
herein. The consummation of the transactions contemplated by this
Assignment and Assumption 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 Assignor or its property is subject. The
execution, delivery and performance by the Assignor of this Assignment
and Assumption Agreement and the consummation by it of the transactions
contemplated hereby, have been duly authorized by all necessary
corporate action on part of the Assignor. This Assignment and
Assumption Agreement has been duly executed and delivered by the
Assignor and, upon the due authorization, execution and delivery by the
Assignee and the Company, will constitute the valid and legally binding
obligation of the Assignor enforceable against the Assignor in
accordance with its terms except as enforceability may be limited by
bankruptcy, reorganization, insolvency, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights
generally, and by general principles of equity regardless of whether
enforceability is considered in a proceeding in equity or at law;
(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 the Assignor in connection with the execution,
delivery or performance by the Assignor of this Assignment and
Assumption Agreement, or the consummation by it of the transactions
contemplated hereby. Neither the Assignor nor anyone acting on its
behalf has offered, transferred, pledged, sold or otherwise disposed of
the Mortgage Loans or any interest in the Mortgage Loans, or solicited
any offer to buy or accept a transfer, pledge or other disposition of
the Mortgage Loans, or any interest in the Mortgage Loans or otherwise
approached or negotiated with respect to the Mortgage Loans, or any
interest in the Mortgage 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 Mortgage Loans under the Securities Act of 1933, as
amended (the "1933 Act") or which would render the disposition of the
Mortgage Loans a violation of Section 5 of the 1933 Act or require
registration pursuant thereto; and
(h) The Assignor has received from the Company, and has delivered to
the Assignee, all documents required to be delivered to the Assignor by
the Company prior to the date hereof pursuant to the Warranties and
Servicing Agreement with respect to the Mortgage Loans and has not
received, and has not requested from the Company, any additional
documents.
4. The Assignee warrants and represents to, and covenants with,
Assignor and Company as of the date hereof:
(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 hold the Mortgage Loans on behalf
of the holders of Prime Mortgage Trust, Mortgage Pass-Through
Certificates, Series 2005-5;
(b) The Assignee has full corporate power and authority to execute,
deliver and perform under this Assignment and Assumption Agreement, and
to consummate the transactions set forth herein. The consummation of
the transactions contemplated by this Assignment and Assumption
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 and Assumption
Agreement and the consummation by it of the transactions contemplated
hereby, have been duly authorized by all necessary corporate action on
part of the Assignee. This Assignment and Assumption 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 Assignee
enforceable against the Assignee in accordance with its terms except as
enforceability may be limited by bankruptcy, reorganization,
insolvency, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally, and by general principles of
equity regardless of whether enforceability is considered in a
proceeding in equity or at law;
(c) No consent, approval, order or authorization of, or declaration,
filing or registration with, any governmental entity is required to be
obtained or made by the Assignee in connection with the execution,
delivery or performance by the Assignee of this Assignment and
Assumption Agreement, or the consummation by it of the transactions
contemplated hereby; and
(d) The Assignee assumes all of the rights of the Purchaser under the
Warranties and Servicing Agreement with respect to the Mortgage Loans
other than the right to enforce the obligations of the Company under
the Warranties and Servicing Agreement.
5. The Company warrants and represents to, and covenants with, the
Assignor and the Assignee as of the date hereof:
(a) Attached hereto as EXHIBIT B is a true and accurate copy of the
Warranties and Servicing 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) The Company is a national banking association duly organized,
validly existing and in good standing under the laws of the United
States, and has all requisite power and authority to service the
Mortgage Loans and otherwise to perform its obligations under the
Warranties and Servicing Agreement;
(c) The Company has full power and authority to execute, deliver and
perform its obligations under this Assignment and Assumption Agreement,
and to consummate the transactions set forth herein. The consummation
of the transactions contemplated by this Assignment and Assumption
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 and Assumption
Agreement and the consummation by it of the transactions contemplated
hereby, have been duly authorized by all necessary action on part of
the Company. This Assignment and Assumption Agreement has been duly
executed and delivered by the 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
the Company in accordance with its terms except as enforceability may
be limited by the effect of insolvency, liquidation, conservatorship
and other similar laws administered by the Federal Deposit Insurance
Corporation affecting the enforcement of contract obligations of
insured banks and subject to the application of the rules of equity;
(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 the Company in connection with the execution,
delivery or performance by the Company of this Assignment and
Assumption Agreement, or the consummation by it of the transactions
contemplated hereby; and
(e) The Company shall establish a Custodial Account and an Escrow
Account under the Warranties and Servicing Agreement in favor of the
Assignee with respect to the Mortgage Loans separate from the Custodial
Account and Escrow Account previously established in favor of Assignor.
6. Assignor hereby agrees to indemnify and hold the Assignee (and its
successors and assigns) harmless against any and all claims, losses, penalties,
fines, forfeitures, legal fees and related costs, judgments, and any other
costs, fees and expenses that Assignee (and its successors and assigns) may
sustain in any way related to any breach of the representations or warranties of
Assignor set forth in this Assignment and Assumption Agreement or the breach of
any covenant or condition contained herein.
7. The Company hereby acknowledges that ▇▇▇▇▇ Fargo Bank, N.A. and any
successor thereto (the "Master Servicer"), has been appointed as master servicer
of the Mortgage Loans pursuant to the Pooling and Servicing Agreement dated as
of December 1, 2005 (the "Pooling and Servicing Agreement"), among Structured
Asset Mortgage Investments II Inc., the Assignee, the Master Servicer, ▇▇▇▇▇
Fargo Bank, N.A. as securities administrator and the Assignor, and therefore has
the right to enforce all obligations of the Company under the Warranties and
Servicing Agreement. Such right will include, without limitation, the right to
receive all remittances required to be made by the Company under the Warranties
and Servicing Agreement, the right to receive all monthly reports and other data
required to be delivered by the Company under the Warranties and Servicing
Agreement, the right to examine the books and records of the Company,
indemnification rights, and the right to exercise certain rights of consent and
approval relating to actions taken by the Company. The Company hereby
acknowledges that the Master Servicer shall be obligated to notify the Assignee
in accordance with the Pooling and Servicing Agreement upon the discovery of an
event of default by the Company of its obligations under the Warranties and
Servicing Agreement and the Assignee shall have the right to terminate the
Company as servicer under the Warranties and Servicing Agreement upon the
occurrence of such an event of default.
8. Notwithstanding any term hereof to the contrary, the execution and
delivery of this Assignment and Assumption Agreement by the Assignee is solely
in its capacity as trustee for Prime Mortgage Trust, Mortgage Pass-Through
Certificates, Series 2005-5 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 Assignment and Assumption Agreement shall be limited solely to the
assets it may hold as trustee of Prime Mortgage Trust, Mortgage Pass-Through
Certificates, Series 2005-5.
RECOGNITION OF ASSIGNEE
9. From and after the date hereof, Company shall recognize Assignee as
owner of the Mortgage Loans and will service the Mortgage Loans for Assignee as
if Assignee and Company had entered into a separate servicing agreement for the
servicing of the Mortgage Loans in the form of the Warranties and Servicing
Agreement (as modified herein), the terms of which are incorporated herein by
reference. Notwithstanding anything to the contrary contained herein or in the
Warranties and Servicing Agreement, Company acknowledges that the Mortgage Loans
will be part of a REMIC and hereby agrees that in no event will it service the
Mortgage Loans in a manner that would (i) cause any REMIC to fail to qualify as
a REMIC or (ii) 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). It is the intention of Assignor, Company and
Assignee that this Assignment and Assumption 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, waive, or
otherwise alter any of the terms or provisions of the Warranties and Servicing
Agreement which amendment, modification, waiver or other alteration would in any
way affect the Mortgage Loans without the prior written consent of Assignee.
MODIFICATION OF THE WARRANTIES AND SERVICING AGREEMENT
10. The Company and Assignor hereby amend the Warranties and Servicing
Agreement as follows:
(a) The following definitions shall be added to Article I of the
Warranties and Servicing Agreement:
ASSIGNEE: U.S. Bank National Association, as trustee for the holders
of Prime Mortgage Trust, Mortgage Pass-Through Certificates, Series
2005-5.
MASTER SERVICER: ▇▇▇▇▇ Fargo Bank, N.A. or any successor thereto.
NONRECOVERABLE ADVANCE: Any advance previously made by the Company
pursuant to Section 5.03 or any Servicing Advance which, in the good
faith judgment of the Company, may not be ultimately recoverable by the
Company from Liquidation Proceeds or otherwise. The determination by
the Company that it has made a Nonrecoverable Advance, shall be
evidenced by an Officer's Certificate of the Company delivered to the
Purchaser and the Master Servicer and detailing the reasons for such
determination.
SECURITIES ADMINISTRATOR: ▇▇▇▇▇ Fargo Bank, N.A.
TRUSTEE: U.S. Bank National Association.
(b) The second paragraph of Section 6.04 of the Warranties and
Servicing Agreement is deleted in its entirety.
(c) The following are added as the second, third and fourth paragraphs
of Section 6.09 of the Warranties and Servicing Agreement:
"Notwithstanding anything in this Agreement to the contrary, the
Company (a) shall not permit any modification with respect to any Mortgage Loan
that would change the Mortgage Interest Rate and (b) shall not (unless the
Mortgagor is in default with respect to the Mortgage Loan or such default is, in
the judgment of the Company, reasonably foreseeable) make or permit any
modification, waiver or amendment of any term of any Mortgage Loan that would
both effect an exchange or reissuance of such Mortgage Loan under Section 1001
of the Code (or Treasury regulations promulgated thereunder).
Prior to taking any action with respect to the Mortgage Loans which is
not contemplated under the terms of this Agreement, the Company will obtain an
Opinion of Counsel reasonably acceptable to the Securities Administrator with a
copy to the Trustee with respect to whether such action could result in the
imposition of a tax upon the REMIC (including but not limited to the tax on
prohibited transactions as defined in Section 860F(a)(2) of the Code and the tax
on contributions to a REMIC set forth in Section 860G(d) of the Code) (either
such event, an "Adverse REMIC Event"), and the Company shall not take any such
action or cause the Trust Fund to take any such action as to which it has been
advised that an Adverse REMIC Event could occur.
The Company shall not permit the creation of any "interests" (within
the meaning of Section 860G of the Code) in the REMIC. The Company shall not
enter into any arrangement by which the REMIC will receive a fee or other
compensation for services nor permit the 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."
(d) The definition of "Reconstitution Date" shall be deleted in its
entirety and replaced with the following:
"The date on which any or all of the Mortgage Loans serviced under this
Agreement may be removed from this Agreement and reconstituted as part of a
Pass-Through Transfer, Agency Sale or Whole Loan Transfer pursuant to Section
9.01 hereof. The Reconstitution Date shall be such date which the Purchaser
shall designate. On such date, the Mortgage Loans transferred may cease to be
covered by this Agreement and the Company's servicing responsibilities may cease
under this Agreement with respect to the related transferred Mortgage Loans,
unless otherwise agreed to between the parties."
(e) The following is added as Section 10.01(ix) of the Warranties and
Servicing Agreement:
(ix) failure by the Company to duly perform, within the
required time period, its obligations under Sections 4.25, 6.04, 6.05, 6.06 or
9.01(d) 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 any party to this Agreement or
by any master servicer responsible for master servicing the Mortgage Loans
pursuant to a securitization of such Mortgage Loans.
(f) Section 5.02 of the Warranties and Servicing Agreement shall be
modified by deleting the introductory phrase "Not later than the Remittance
Date" and replacing it with the phrase "On or before the tenth (10th) business
day of each month".
(g) Sections 6.04, 6.05 and 6.06 of the Warranties and Servicing
Agreement shall be modified by replacing the word "Purchaser" in each instance
with the phrase "Master Servicer".
(h) The first sentence of Section 12.03 of the Warranties and Servicing
Agreement is deleted in its entirety and replaced with the following:
Section 12.03 GOVERNING LAW.
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without giving effect
to principles of conflicts of laws and except to the extent preempted
by Federal law and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws.
(i) The following shall be added as Section 12.12 of the Warranties and
Servicing Agreement:
Section 12.12 THIRD PARTY BENEFICIARY.
For purposes of this Agreement, any Master Servicer shall be
considered a third party beneficiary to this Agreement entitled to all
the rights and benefits accruing to any Master Servicer herein as if it
were a direct party to this Agreement.
(j) The following is added as Subsection 4.05(x) of the Warranties and
Servicing Agreement:
"(x) to reimburse itself for any Nonrecoverable Advances;"
(k) The definition of "Qualified Depository" in the Warranties and
Servicing Agreement shall be modified by deleting the word "A-1" and replacing
it with the word "A-1+".
11. Distributions shall be made by wire transfer of immediately
available funds to:
Bear ▇▇▇▇▇▇▇ PRIME 2005-5 Master Servicer Collection Account
▇▇▇▇▇ Fargo Bank, N.A.
ABA# ▇▇▇▇▇▇▇▇▇
Account Name: SAS Clearing
Account # ▇▇▇▇▇▇▇▇▇▇
For Further Credit to: PRIME 2005-5, A/C# 17218700
and the Company shall deliver all reports required to be delivered under the
Warranties and Servicing Agreement to the Assignee at the address set forth in
Section 12 herein and to the Master Servicer at:
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Client Manager PRIME 2005-5
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
12. Notices:
The Assignor's address for purposes of all notices and correspondence related
to the Mortgage Loans and this Assignment and Assumption Agreement is:
EMC Mortgage Corporation
Mac ▇▇▇▇▇▇ ▇▇▇▇▇ Illinois
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, President
With a copy to:
Bear ▇▇▇▇▇▇▇ Mortgage Capital Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
The Assignee's address for purposes of all notices
and correspondence related to the Mortgage Loans and
this Assignment and Assumption Agreement is:
U.S. Bank National Association, as trustee ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Services
PRIME 2005-5
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
The Company's address for purposes of all notices
and correspondence related to the Mortgage Loans and
this Assignment and Assumption Agreement is:
▇▇▇▇▇ Fargo Bank, N.A.
1 Home Campus
MAC ▇▇▇▇▇-▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
With a copy to:
▇▇▇▇▇ Fargo Bank, N.A.
1 Home Campus
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: General Counsel - MAC X2401-06T
MISCELLANEOUS:
13. Each party will pay any commissions it has incurred and the
Assignor shall pay the fees of its attorneys and the reasonable fees of the
attorneys of the Assignee and the Company in connection with the negotiations
for, documenting of and closing of the transactions contemplated by this
Assignment and Assumption Agreement.
14. This Assignment and Assumption Agreement shall be construed in
accordance with the laws of the State of New York, including Sections 5-1401 and
5-1402 of the New General Obligations Law, but otherwise 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.
15. No term or provision of this Assignment and Assumption 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.
16. This Assignment and Assumption 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.
17. This Assignment and Assumption Agreement shall survive the
conveyance of the Mortgage Loans and the assignment of Warranties and Servicing
Agreement to the extent of the Mortgage Loans by Assignor to Assignee and the
termination of the Warranties and Servicing Agreement.
18. This Assignment and Assumption 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.
19. In the event that any provision of this Assignment and Assumption
Agreement conflicts with any provision of the Warranties and Servicing Agreement
with respect to the Mortgage Loans, the terms of this Assignment and Assumption
Agreement shall control.
20. Any new loan number assigned to a Mortgage Loan by the Assignee
shall be provided to the Company at the following address: ▇▇▇▇▇ Fargo Bank,
N.A., 1 Home Campus, MAC ▇▇▇▇▇-▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ Attention: ▇▇▇▇
▇. ▇▇▇▇▇, with a copy to ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇.▇., ▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇-▇▇▇▇ Attention: General Counsel-MAC X2401-042. In addition, if Assignee
has changed its document custodian from the previous custodian, such new
custodian's name, address and contact information shall be provided to the
Company at the aforementioned address.
IN WITNESS WHEREOF, the parties have caused this Assignment and Assumption
Agreement to be executed by their duly authorized officers as of the date first
above written.
U.S. BANK NATIONAL ASSOCIATION, not
individually but solely as trustee for the
holders of Prime Mortgage Trust, Mortgage
Pass-Through Certificates, 2005-5
By:
-----------------------------------------
Name:
Title:
EMC MORTGAGE CORPORATION
By:
-----------------------------------------
Name:
Title
▇▇▇▇▇ FARGO BANK, N.A.,
as Company
By:
-----------------------------------------
Name:
Title:
Acknowledged and Agreed
▇▇▇▇▇ FARGO BANK,
N.A.,
as Master Servicer
By:__________________________
Name:________________________
Title:_______________________
EXHIBIT A
Mortgage Loans
[PROVIDED UPON REQUEST]
EXHIBIT B
Amended and Restated Master Seller's Warranties and Servicing Agreement, dated
as of November 1, 2005 by and between ▇▇▇▇▇ Fargo and EMC.
EXHIBIT J
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT
MORTGAGE LOAN PURCHASE AGREEMENT, dated as of December 29,
2005, as amended and supplemented by any and all amendments hereto
(collectively, the "AGREEMENT"), by and between EMC MORTGAGE CORPORATION, a
Delaware corporation (the "MORTGAGE LOAN SELLER") and STRUCTURED ASSET MORTGAGE
INVESTMENTS II INC., a Delaware corporation (the "PURCHASER").
Upon the terms and subject to the conditions of this
Agreement, the Mortgage Loan Seller agrees to sell, and the Purchaser agrees to
purchase, certain conventional, first lien mortgage loans secured primarily by
one- to four-family residential properties, an interest in shares issued by a
cooperative apartment corporation and the related proprietary lease and
individual condominium units (collectively, the "MORTGAGE Loans") as described
herein. The Purchaser intends to deposit the Mortgage Loans into a trust fund
(the "TRUST Fund") and create Prime Mortgage Trust, Mortgage Pass-Through
Certificates, Series 2005-5 (the "CERTIFICATES"), under a pooling and servicing
agreement, to be dated as of December 1, 2005 (the "POOLING AND SERVICING
Agreement"), among the Purchaser, as depositor, ▇▇▇▇▇ Fargo Bank, National
Association, as master servicer and securities administrator, U.S. Bank National
Association, as trustee (the "TRUSTEE") and EMC Mortgage Corporation, as seller
and company.
The Purchaser has filed with the Securities and Exchange
Commission (the "COMMISSION") a registration statement on Form S-3 (Number
333-120916) relating to its Mortgage Pass-Through Certificates and the offering
of certain series thereof (including certain classes of the Mortgage
Pass-Through Certificates) from time to time in accordance with Rule 415 under
the Securities Act of 1933, as amended, and the rules and regulations of the
Commission promulgated thereunder (the "SECURITIES ACT"). Such registration
statement, when it became effective under the Securities Act, and the prospectus
relating to the public offering of certain classes of the Mortgage Pass-Through
Certificates by the Purchaser (the "PUBLIC OFFERING"), as each may be amended or
supplemented from time to time pursuant to the Securities Act or otherwise, are
referred to herein as the "REGISTRATION STATEMENT" and the "PROSPECTUS,"
respectively. The "PROSPECTUS SUPPLEMENT" shall mean that supplement, dated
December [ ], 2005 to the Prospectus, dated December 20, 2004, relating to
certain classes of the Mortgage Pass-Through Certificates. With respect to the
Public Offering of certain classes of the Certificates, the Purchaser and Bear,
▇▇▇▇▇▇▇ & Co. Inc. ("BEAR ▇▇▇▇▇▇▇") have entered into a terms agreement dated as
of December [ ], 2005 to an underwriting agreement dated January 25, 2005,
between the Purchaser and Bear ▇▇▇▇▇▇▇ (together, the "UNDERWRITING AGREEMENT").
Now, therefore, in consideration of the premises and the
mutual agreements set forth herein, the parties hereto agree as follows:
I. DEFINITIONS. CERTAIN TERMS ARE DEFINED HEREIN. CAPITALIZED TERMS USED HEREIN
BUT NOT DEFINED HEREIN SHALL HAVE THE MEANINGS SPECIFIED IN THE POOLING AND
SERVICING AGREEMENT. THE FOLLOWING OTHER TERMS ARE DEFINED AS FOLLOWS:
ACQUISITION PRICE: Cash in an amount equal to $______
(plus $______ in accrued interest)(1).
BEAR ▇▇▇▇▇▇▇: Bear, ▇▇▇▇▇▇▇ & Co. Inc.
CLOSING DATE: December 29, 2005.
CUT-OFF DATE: December 1, 2005.
CUT-OFF DATE BALANCE: Shall mean $[__________].
DELETED MORTGAGE LOAN: A Mortgage Loan replaced or to be
replaced by a Substitute Mortgage Loan.
DUE DATE: With respect to each Mortgage Loan, the date in each
month on which its scheduled payment is due if such due date is the first day of
a month and otherwise is deemed to be the first day of the following month or
such other date specified in the related Servicing Agreement.
FITCH: Fitch, Inc. or its successor in interest.
MASTER SERVICER: ▇▇▇▇▇ Fargo Bank, National Association.
MERS: Mortgage Electronic Registration Systems, Inc., a
corporation organized and existing under the laws of the State of Delaware, or
any successor thereto.
MERS(R) SYSTEM: The system of recording transfers of Mortgages
electronically maintained by MERS.
MOODY'S: ▇▇▇▇▇'▇ Investors Service Inc., or its successor in
interest.
MORTGAGE: The mortgage or deed of trust creating a first
lien on an interest in real property securing a Mortgage Note.
MORTGAGE FILE: The items referred to in EXHIBIT 1 pertaining
to a particular Mortgage Loan and any additional documents required to be added
to such documents pursuant to this Agreement.
MORTGAGE INTEREST RATE: The annual rate of interest borne by a
Mortgage Note as stated therein.
MORTGAGOR: The obligor(s) on a Mortgage Note.
NET RATE: For each Mortgage Loan, the Mortgage Interest Rate
for such Mortgage Loan less the Servicing Fee Rate and the Lender-Paid PMI Rate
(if applicable).
OPINION OF COUNSEL: A written opinion of counsel, who may be
counsel for the Mortgage Loan Seller or the Purchaser, reasonably acceptable to
the Trustee.
PERSON: Any legal person, including any individual,
corporation, partnership, joint venture, association, joint stock company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
PURCHASE PRICE: With respect to any Mortgage Loan (or any
property acquired with respect thereto) required to be repurchased by the
Mortgage Loan Seller pursuant to this Agreement or Article II of the Pooling and
Servicing Agreement, an amount equal to the sum of (i)(a) 100% of the
Outstanding Principal Balance of such Mortgage Loan as of the date of repurchase
(or if the related Mortgaged Property was acquired with respect thereto, 100% of
the Outstanding Principal Balance at the date of the acquisition), plus (b)
accrued but unpaid interest on the Outstanding Principal Balance at the related
Mortgage Interest Rate, through and including the last day of the month of
repurchase, plus (c) any unreimbursed Monthly Advances and servicing advances
payable to the Servicer of the Mortgage Loan and (ii) any costs and damages (if
any) incurred by the Trust in connection with any violation of such Mortgage
Loan of any anti-predatory lending laws.
RATING AGENCIES: ▇▇▇▇▇'▇, Fitch and S&P, each a "RATING
AGENCY."
SECURITIES ACT: The Securities Act of 1933, as amended.
SECURITY INSTRUMENT: A written instrument creating a valid
first lien on a Mortgaged Property securing a Mortgage Note, which may be any
applicable form of mortgage, deed of trust, deed to secure debt or security
deed, including any riders or addenda thereto.
SERVICING AGREEMENTS: Shall have the meaning assigned to such
term in the Pooling and Servicing Agreement.
STANDARD & POOR'S OR S&P: Standard & Poor's, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. or its successors in interest.
SUBSTITUTE MORTGAGE LOAN: A mortgage loan substituted for a
Deleted Mortgage Loan which must meet on the date of such substitution the
requirements stated herein and in the Pooling and Servicing Agreement; upon such
substitution, such mortgage loan shall be a "Mortgage Loan" hereunder.
VALUE: The value of the Mortgaged Property at the time of
origination of the related Mortgage Loan, such value being the lesser of (i) the
value of such property set forth in an appraisal accepted by the applicable
originator of the Mortgage Loan or (ii) the sales price of such property at the
time of origination.
PURCHASE AND SALE OF THE MORTGAGE LOANS AND RELATED RIGHTs. (a) Upon
satisfaction of the conditions set forth in Section 10 hereof, the Mortgage Loan
Seller agrees to sell, and the Purchaser agrees to purchase Mortgage Loans
having an aggregate outstanding principal balance as of the Cut-off Date equal
to the Cut-off Date Balance.
(b) The closing for the purchase and sale of the Mortgage Loans and the
closing for the issuance of the Mortgage Pass-Through Certificates will take
place on the Closing Date at the office of the Purchaser's counsel in New York,
New York or such other place as the parties shall agree.
(c) Upon the satisfaction of the conditions set forth in Section 10
hereof, on the Closing Date, the Purchaser shall pay to the Mortgage Loan Seller
the Acquisition Price for the Mortgage Loans in immediately available funds by
wire transfer to such account or accounts as shall be designated by the Mortgage
Loan Seller.
(d) In addition to the foregoing, on the Closing Date the Mortgage Loan
Seller assigns to the Purchaser all of its right, title and interest in the
Servicing Agreements (other than its right to enforce the representations and
warranties set forth therein).
MORTGAGE LOAN SCHEDULES. The Mortgage Loan Seller agrees to provide to
the Purchaser as of the date hereof a preliminary listing of the Mortgage Loans
(the "PRELIMINARY MORTGAGE LOAN SCHEDULE") setting forth the information listed
on EXHIBIT 2 to this Agreement with respect to each of the Mortgage Loans being
sold by the Mortgage Loan Seller. If there are changes to the Preliminary
Mortgage Loan Schedule, the Mortgage Loan Seller shall provide to the Purchaser
as of the Closing Date a final schedule (the "FINAL MORTGAGE LOAN SCHEDULE")
setting forth the information listed on EXHIBIT 2 to this Agreement with respect
to each of the Mortgage Loans being sold by the Mortgage Loan Seller to the
Purchaser. The Final Mortgage Loan Schedule shall be delivered to the Purchaser
on the Closing Date, shall be attached to an amendment to this Agreement to be
executed on the Closing Date by the parties hereto and shall be in form and
substance mutually agreed to by the Mortgage Loan Seller and the Purchaser (the
"AMENDMENT"). If there are no changes to the Preliminary Mortgage Loan Schedule,
the Preliminary Mortgage Loan Schedule shall be the Final Mortgage Loan Schedule
for all purposes hereof.
MORTGAGE LOAN TRANSFER.
(a) The Purchaser will be entitled to all scheduled payments of
principal and interest on the Mortgage Loans due after the Cut-off Date
(regardless of when actually collected) and all payments thereon, other than
scheduled principal and interest due on or before the Cut-off Date but received
after the Cut-off Date. The Mortgage Loan Seller will be entitled to all
scheduled payments of principal and interest on the Mortgage Loans due on or
before the Cut-off Date (including payments collected after the Cut-off Date)
and all payments thereon, other than scheduled principal and interest due after
the Cut-off Date but received on or before the Cut-off Date. Such principal
amounts and any interest thereon belonging to the Mortgage Loan Seller as
described above will not be included in the aggregate outstanding principal
balance of the Mortgage Loans as of the Cut-off Date as set forth on the Final
Mortgage Loan Schedule.
(b) Pursuant to various conveyancing documents to be executed on the
Closing Date and pursuant to the Pooling and Servicing Agreement, the Purchaser
will assign on the Closing Date all of its right, title and interest in and to
the Mortgage Loans to the Trustee for the benefit of the Certificateholders and
Radian Asset Assurance Inc. In connection with the transfer and assignment of
the Mortgage Loans, the Mortgage Loan Seller has delivered or will deliver or
cause to be delivered to the Trustee by the Closing Date or such later date as
is agreed to by the Purchaser and the Mortgage Loan Seller (each of the Closing
Date and such later date is referred to as a "MORTGAGE FILE DELIVERY DATE"), the
items of each Mortgage File, PROVIDED, HOWEVER, that in lieu of the foregoing,
the Mortgage Loan Seller may deliver the following documents, under the
circumstances set forth below: (w) in lieu of the original Security Instrument,
assignments to the Trustee or intervening assignments thereof which have been
delivered, are being delivered or will, upon receipt of recording information
relating to the Security Instrument required to be included thereon, be
delivered to recording offices for recording and have not been returned to the
Mortgage Loan Seller in time to permit their delivery as specified above, the
Mortgage Loan Seller may deliver a true copy thereof with a certification by the
Mortgage Loan Seller, on the face of such copy, substantially as follows:
"Certified to be a true and correct copy of the original, which has been
transmitted for recording"; (x) in lieu of the Security Instrument, assignments
to the Trustee or intervening assignments thereof, if the applicable
jurisdiction retains the originals of such documents (as evidenced by a
certification from the Mortgage Loan Seller to such effect) the Mortgage Loan
Seller may deliver photocopies of such documents containing an original
certification by the judicial or other governmental authority of the
jurisdiction where such documents were recorded; (y) in lieu of the Mortgage
Notes relating to the Mortgage Loans, each identified in the list delivered by
the Purchaser to the Trustee on the Closing Date and attached hereto as Exhibit
5, the Mortgage Loan Seller may deliver lost note affidavits and indemnities of
the Mortgage Loan Seller; and (z) the Mortgage Loan Seller shall not be required
to deliver intervening assignments or Mortgage Note endorsements between the
related Underlying Seller and the Mortgage Loan Seller, between the Mortgage
Loan Seller and the Depositor, and between the Depositor and the Trustee; and
provided further, however, that in the case of Mortgage Loans which have been
prepaid in full after the Cut-off Date and prior to the Closing Date, the
Mortgage Loan Seller, in lieu of delivering the above documents, may deliver to
the Trustee a certification by the Mortgage Loan Seller or the Master Servicer
to such effect and shall deposit all amounts paid in respect of such Mortgage
Loans in the Master Servicer Collection Account on the Closing Date. The
Mortgage Loan Seller shall deliver such original documents (including any
original documents as to which certified copies had previously been delivered)
or such certified copies to the Trustee promptly after they are received. The
Mortgage Loan Seller shall cause the Mortgage and intervening assignments, if
any, and the assignment of the Security Instrument to be recorded not later than
180 days after the Closing Date, unless such assignment is not required to be
recorded under the terms set forth in Section 6(a) hereof.
(c) In connection with the assignment of any Mortgage Loan registered
on the MERS(R) System, the Mortgage Loan Seller further agrees that it will
cause, at the Mortgage Loan Seller's own expense, within 30 days after the
Closing Date, the MERS(R) System to indicate that such Mortgage Loans have been
assigned by the Mortgage Loan Seller to the Purchaser and by the Purchaser to
the Trustee in accordance with this Agreement for the benefit of the
Certificateholders by including (or deleting, in the case of Mortgage Loans
which are repurchased in accordance with this Agreement) in such computer files
(a) the code in the field which identifies the specific Trustee and (b) the code
in the field "Pool Field" which identifies the series of the Mortgage
Pass-Through Certificates issued in connection with such Mortgage Loans. The
Mortgage Loan Seller further agrees that it will not, and will not permit any
Servicer or the Master Servicer to, and the Master Servicer agrees that it will
not, alter the codes referenced in this paragraph with respect to any Mortgage
Loan during the term of the Pooling and Servicing Agreement unless and until
such Mortgage Loan is repurchased in accordance with the terms of the Pooling
and Servicing Agreement.
(d) The Mortgage Loan Seller and the Purchaser acknowledge hereunder
that all of the Mortgage Loans and the related servicing will ultimately be
assigned to U.S. Bank National Association, as Trustee for the Holders of the
Mortgage, on the date hereof.
EXAMINATION OF MORTGAGE FILES.
(a) On or before the Mortgage File Delivery Date, the Mortgage Loan
Seller will have made the Mortgage Files available to the Purchaser or its agent
for examination which may be at the offices of the Trustee or the Mortgage Loan
Seller and/or the Mortgage Loan Seller's custodian. The fact that the Purchaser
or its agent has conducted or has failed to conduct any partial or complete
examination of the Mortgage Files shall not affect the Purchaser's rights to
demand cure, repurchase, substitution or other relief as provided in this
Agreement. In furtherance of the foregoing, the Mortgage Loan Seller shall make
the Mortgage Files available to the Purchaser or its agent from time to time so
as to permit the Purchaser to confirm the Mortgage Loan Seller's compliance with
the delivery and recordation requirements of this Agreement and the Pooling and
Servicing Agreement. In addition, upon request of the Purchaser, the Mortgage
Loan Seller agrees to provide to the Purchaser, Bear ▇▇▇▇▇▇▇ and to any
investors or prospective investors in the Mortgage Pass-Through Certificates
information regarding the Mortgage Loans and their servicing, to make the
Mortgage Files available to the Purchaser, Bear ▇▇▇▇▇▇▇ and to such investors or
prospective investors (which may be at the offices of the Mortgage Loan Seller
and/or the Mortgage Loan Seller's custodian) and to make available personnel
knowledgeable about the Mortgage Loans for discussions with the Purchaser, Bear
▇▇▇▇▇▇▇ and such investors or prospective investors, upon reasonable request
during regular business hours, sufficient to permit the Purchaser, Bear ▇▇▇▇▇▇▇
and such investors or potential investors to conduct such due diligence as any
such party reasonably believes is appropriate.
(b) Pursuant to the Pooling and Servicing Agreement, on the Closing
Date the Custodian, on behalf of the Trustee, for the benefit of the
Pass-Through Certificates and Radian Asset Assurance Inc., will acknowledge
receipt of each Mortgage Loan by delivery to the Mortgage Loan Seller, the
Purchaser and the Trustee of an initial certification in the form attached as
Exhibit One to the Custodial Agreement.
(c) Pursuant to the Pooling and Servicing Agreement, within 90 days of
the Closing Date (or, with respect to any Substitute Mortgage Loan, within five
Business Days after the receipt by the Trustee or Custodian thereof), the
Trustee will review or shall cause the Custodian to review items of the Mortgage
Files as set forth on EXHIBIT 1 and will deliver to the Mortgage Loan Seller,
the Purchaser and the Trustee an interim certification substantially in the form
of Exhibit Two to the Custodial Agreement. If the Trustee or Custodian, as its
agent, finds any document listed on EXHIBIT 1 not to have been executed or
received, or to be unrelated, determined on the basis of the Mortgagor name,
original principal balance and loan number, to the Mortgage Loans identified in
the Final Mortgage Loan Schedule or to appear defective on its face (a "MATERIAL
DEFECT"), the Trustee or the Custodian, as its agent, shall promptly notify the
Mortgage Loan Seller of such Material Defect. The Mortgage Loan Seller shall
correct or cure any such Material Defect within 90 days from the date of notice
from the Trustee or the Custodian, as its agent, of the Material Defect and if
the Mortgage Loan Seller fails to correct or cure such Material Defect within
such period and such defect materially and adversely affects the interests of
the Certificateholders in the related Mortgage Loan, the Mortgage Loan Seller
will, in accordance with the terms of the Pooling and Servicing Agreement,
within 90 days of the date of notice, provide the Trustee with a Substitute
Mortgage Loan (if within two years of the Closing Date) or purchase the related
Mortgage Loan at the applicable Purchase Price; PROVIDED THAT, if such defect
would cause the Mortgage Loan to be other than a "qualified mortgage" as defined
in Section 860G(a)(3) of the Code, any such cure, repurchase or substitution
must occur within 90 days from the date such breach was discovered; PROVIDED,
HOWEVER, that if such defect relates solely to the inability of the Mortgage
Loan Seller to deliver the original Security Instrument or intervening
assignments thereof, or a certified copy because the originals of such
documents, or a certified copy, have not been returned by the applicable
jurisdiction, the Mortgage Loan Seller shall not be required to purchase such
Mortgage Loan if the Mortgage Loan Seller delivers such original documents or
certified copy promptly upon receipt, but in no event later than 360 days after
the Closing Date. The foregoing repurchase obligation shall not apply in the
event that the Mortgage Loan Seller cannot deliver such original or copy of any
document submitted for recording to the appropriate recording office in the
applicable jurisdiction because such document has not been returned by such
office; provided that the Mortgage Loan Seller shall instead deliver a recording
receipt of such recording office or, if such receipt is not available, a
certificate confirming that such documents have been accepted for recording, and
delivery to the Trustee or the Custodian, as its agent, shall be effected by the
Mortgage Loan Seller within thirty days of its receipt of the original recorded
document.
(d) Pursuant to the Pooling and Servicing Agreement, within 180 days of
the Closing Date (or, with respect to any Substitute Mortgage Loan, within five
Business Days after the receipt by the Trustee or Custodian thereof) the Trustee
will review or cause the Custodian to review items of the Mortgage Files as set
forth on EXHIBIT 1 and will deliver to the Mortgage Loan Seller, the Purchaser
and the Trustee a final certification substantially in the form of Exhibit Three
to the Custodial Agreement. If the Trustee or Custodian, as its agent, finds a
Material Defect, the Trustee or the Custodian, as its agent, shall promptly
notify the Mortgage Loan Seller of such Material Defect. The Mortgage Loan
Seller shall correct or cure any such Material Defect within 90 days from the
date of notice from the Trustee or the Custodian, as its agent, of the Material
Defect and if the Mortgage Loan Seller fails to correct or cure such Material
Defect within such period and such defect materially and adversely affects the
interests of the Certificateholders in the related Mortgage Loan, the Mortgage
Loan Seller will, in accordance with the terms of the Pooling and Servicing
Agreement, within 90 days of the date of notice, provide the Trustee with a
Substitute Mortgage Loan (if within two years of the Closing Date) or purchase
the related Mortgage Loan at the applicable Purchase Price; PROVIDED THAT, if
such defect would cause the Mortgage Loan to be other than a "qualified
mortgage" as defined in Section 860G(a)(3) of the Code, any such cure,
repurchase or substitution must occur within 90 days from the date such breach
was discovered; PROVIDED, HOWEVER, that if such defect relates solely to the
inability of the Mortgage Loan Seller to deliver the original Security
Instrument or intervening assignments thereof, or a certified copy because the
originals of such documents, or a certified copy, have not been returned by the
applicable jurisdiction, the Mortgage Loan Seller shall not be required to
purchase such Mortgage Loan if the Mortgage Loan Seller delivers such original
documents or certified copy promptly upon receipt, but in no event later than
360 days after the Closing Date. The foregoing repurchase obligation shall not
apply in the event that the Mortgage Loan Seller cannot deliver such original or
copy of any document submitted for recording to the appropriate recording office
in the applicable jurisdiction because such document has not been returned by
such office; provided that the Mortgage Loan Seller shall instead deliver a
recording receipt of such recording office or, if such receipt is not available,
a certificate confirming that such documents have been accepted for recording,
and delivery to the Trustee or the Custodian, as its agent, shall be effected by
the Mortgage Loan Seller within thirty days of its receipt of the original
recorded document.
(e) At the time of any substitution, the Mortgage Loan Seller shall
deliver or cause to be delivered the Substitute Mortgage Loan, the related
Mortgage File and any other documents and payments required to be delivered in
connection with a substitution pursuant to the Pooling and Servicing Agreement.
At the time of any purchase or substitution, the Trustee in accordance with the
terms of the Pooling and Servicing Agreement shall (i) assign to the Mortgage
Loan Seller and cause the Custodian to release the documents (including, but not
limited to, the Mortgage, Mortgage Note and other contents of the Mortgage File)
in the possession of the Custodian relating to the Deleted Mortgage Loan and
(ii) execute and deliver such instruments of transfer or assignment, in each
case without recourse, as shall be necessary to vest in the Mortgage Loan Seller
title to such Deleted Mortgage Loan.
RECORDATION OF ASSIGNMENTS OF MORTGAGE.
(a) The Mortgage Loan Seller shall cause each assignment of the
Security Instrument from the Mortgage Loan Seller to the Trustee to be recorded
not later than 180 days after the Closing Date, unless (a) such recordation is
not required by the Rating Agencies or an Opinion of Counsel has been provided
to the Trustee (with a copy to the Custodian) which states that the recordation
of such assignments is not necessary to protect the interests of the
Certificateholders in the related Mortgage Loans or (b) MERS is identified on
the Mortgage or a properly recorded assignment of the Mortgage, as the Mortgagee
of record solely as nominee for the Mortgage Loan Seller and its successors and
assigns; PROVIDED, HOWEVER, notwithstanding the foregoing, each assignment shall
be submitted for recording by the Mortgage Loan Seller in the manner described
above, at no expense to the Trust or Trustee, upon the earliest to occur of (i)
reasonable direction by the Holders of Mortgage Pass-Through Certificates
evidencing Fractional Undivided Interests aggregating not less than 25% of the
portion of the Trust related to such Classes, (ii) the occurrence of an Event of
Default, (iii) the occurrence of a bankruptcy, insolvency or foreclosure
relating to the Mortgage Loan Seller and (iv) the occurrence of a servicing
transfer as described in Section 8.02 of the Pooling and Servicing Agreement.
While each such Mortgage or assignment is being recorded, if necessary, the
Mortgage Loan Seller shall leave or cause to be left with the Trustee a
certified copy of such Mortgage or assignment. All customary recording fees and
reasonable expenses relating to the recordation of the assignments of mortgage
to the Trustee or the Opinion of Counsel, as the case may be, shall be borne by
the Mortgage Loan Seller.
(b) It is the express intent of the parties hereto that the conveyance
of the Mortgage Loans by the Mortgage Loan Seller to the Purchaser, as
contemplated by this Agreement be, and be treated as, a sale. It is, further,
not the intention of the parties that such conveyance be deemed a pledge of the
Mortgage Loans by the Mortgage Loan Seller to the Purchaser to secure a debt or
other obligation of the Mortgage Loan Seller. However, in the event that,
notwithstanding the intent of the parties, the Mortgage Loans are held by a
court to continue to be property of the Mortgage Loan Seller, then (a) this
Agreement shall also be deemed to be a security agreement within the meaning of
Articles 8 and 9 of the applicable Uniform Commercial Code; (b) the transfer of
the Mortgage Loans provided for herein shall be deemed to be a grant by the
Mortgage Loan Seller to the Purchaser of a security interest in all of the
Mortgage Loan Seller's right, title and interest in and to the Mortgage Loans
and all amounts payable to the holders of the Mortgage Loans in accordance with
the terms thereof and all proceeds of the conversion, voluntary or involuntary,
of the foregoing into cash, instruments, securities or other property, to the
extent the Purchaser would otherwise be entitled to own such Mortgage Loans and
proceeds pursuant to Section 4 hereof, including all amounts, other than
investment earnings, from time to time held or invested in any accounts created
pursuant to the Pooling and Servicing Agreement, whether in the form of cash,
instruments, securities or other property; (c) the possession by the Purchaser
or the Trustee of Mortgage Notes and such other items of property as constitute
instruments, money, negotiable documents or chattel paper shall be deemed to be
"possession by the secured party" for purposes of perfecting the security
interest pursuant to Section 9-313 (or comparable provision) of the applicable
Uniform Commercial Code; and (d) notifications to persons holding such property,
and acknowledgments, receipts or confirmations from persons holding such
property, shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as applicable)
of the Purchaser for the purpose of perfecting such security interest under
applicable law. Any assignment of the interest of the Purchaser pursuant to any
provision hereof or pursuant to the Pooling and Servicing Agreement shall also
be deemed to be an assignment of any security interest created hereby. The
Mortgage Loan Seller and the Purchaser shall, to the extent consistent with this
Agreement, take such actions as may be reasonably necessary to ensure that, if
this Agreement were deemed to create a security interest in the Mortgage Loans,
such security interest would be deemed to be a perfected security interest of
first priority under applicable law and will be maintained as such throughout
the term of the Pooling and Servicing Agreement.
REPRESENTATIONS AND WARRANTIES OF MORTGAGE LOAN SELLER CONCERNING THE
MORTGAGE LOANS. The Mortgage Loan Seller hereby represents and warrants to the
Purchaser as of the Closing Date or such other date as may be specified below
with respect to each Mortgage Loan being sold by it:
(i) the information set forth in the Mortgage Loan Schedule attached
hereto is true and correct in all material respects and the information provided
to the Rating Agencies, including the Mortgage Loan level detail, is true and
correct according to the Rating Agency requirements;
(ii) immediately prior to the transfer to the Purchaser, the Mortgage
Loan Seller was the sole owner of beneficial title and holder of each Mortgage
and Mortgage Note relating to the Mortgage Loans and is conveying the same free
and clear of any and all liens, claims, encumbrances, participation interests,
equities, pledges, charges or security interests of any nature and the Mortgage
Loan Seller has full right and authority to sell or assign the same pursuant to
this Agreement;
(iii) Each Mortgage Loan at the time it was made complied in all
material respects with all applicable laws and regulations, including, without
limitation, usury, equal credit opportunity, disclosure and recording laws and
all anti-predatory lending laws; and each Mortgage Loan has been serviced in all
material respects in accordance with all applicable laws and regulations,
including, without limitation, usury, equal credit opportunity, disclosure and
recording laws and all anti-predatory lending laws and the terms of the related
Mortgage Note, the Mortgage and other loan documents;
(iv) there is no monetary default existing under any Mortgage or the
related Mortgage Note and there is no material event which, with the passage of
time or with notice and the expiration of any grace or cure period, would
constitute a default, breach or event of acceleration; and neither the Mortgage
Loan Seller, any of its affiliates nor any servicer of any related Mortgage Loan
has taken any action to waive any default, breach or event of acceleration; no
foreclosure action is threatened or has been commenced with respect to the
Mortgage Loan;
(v) the terms of the Mortgage Note and the Mortgage have not been
impaired, waived, altered or modified in any respect, except by written
instruments, (i) if required by law in the jurisdiction where the Mortgaged
Property is located, or (ii) to protect the interests of the Trustee on behalf
of the Certificateholders;
(vi) no selection procedure reasonably believed by the Mortgage Loan
Seller to be adverse to the interests of the Certificateholders was utilized in
selecting the Mortgage Loans;
(vii) each Mortgage is a valid and enforceable first lien on the
property securing the related Mortgage Note and each Mortgaged Property is owned
by the Mortgagor in fee simple (except with respect to common areas in the case
of condominiums, PUDs and DE MINIMIS PUDs) or by leasehold for a term longer
than the term of the related Mortgage, subject only to (i) the lien of current
real property taxes and assessments, (ii) covenants, conditions and
restrictions, rights of way, easements and other matters of public record as of
the date of recording of such Mortgage, such exceptions being acceptable to
mortgage lending institutions generally or specifically reflected in the
appraisal obtained in connection with the origination of the related Mortgage
Loan or referred to in the lender's title insurance policy delivered to the
originator of the related Mortgage Loan and (iii) other matters to which like
properties are commonly subject which do not materially interfere with the
benefits of the security intended to be provided by such Mortgage;
(viii) there is no mechanics' lien or claim for work, labor or material
affecting the premises subject to any Mortgage which is or may be a lien prior
to, or equal with, the lien of such Mortgage except those which are insured
against by the title insurance policy referred to in (xiii) below;
(ix) as of the Cut-off Date, there was no delinquent tax or assessment
lien against the property subject to any Mortgage, except where such lien was
being contested in good faith and a stay had been granted against levying on the
property;
(x) there is no valid offset, defense or counterclaim to any Mortgage
Note or Mortgage, including the obligation of the Mortgagor to pay the unpaid
principal and interest on such Mortgage Note;
(xi) the Mortgaged Property is undamaged by waste, fire, earthquake or
earth movement, windstorm, flood, tornado or other casualty so as to affect
adversely the value of the Mortgaged Property as security for the Mortgage Loans
or the use for which the premises were intended; and there is no proceeding
pending or threatened for the total or partial condemnation of the related
Mortgaged Property;
(xii) the Mortgaged Property and all improvements thereon comply with
all requirements of any applicable zoning and subdivision laws and ordinances;
(xiii) a lender's title insurance policy (on an ALTA or CLTA form) or
binder, or other assurance of title customary in the relevant jurisdiction
therefor in a form acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac, was issued on the
date that each Mortgage Loan was created by a title insurance company which was
qualified to do business in the jurisdiction where the related Mortgaged
Property is located, insuring the Mortgage Loan Seller and its successors and
assigns that the Mortgage is a first priority lien on the related Mortgaged
Property in the original principal amount of the Mortgage Loan. The Mortgage
Loan Seller is the sole insured under such lender's title insurance policy, and
such policy, binder or assurance is valid and remains in full force and effect,
and each such policy, binder or assurance shall contain all applicable
endorsements including a negative amortization endorsement, if applicable;
(xiv) as of the Closing Date, the improvements on each Mortgaged
Property securing a Mortgage Loan is insured (by an insurer which is acceptable
to the Mortgage Loan Seller) against loss by fire and such hazards as are
covered under a standard extended coverage endorsement in the locale in which
the Mortgaged Property is located, in an amount which is not less than the
lesser of the maximum insurable value of the improvements securing such Mortgage
Loan or the outstanding principal balance of the Mortgage Loan, but in no event
in an amount less than an amount that is required to prevent the Mortgagor from
being deemed to be a co-insurer thereunder; if the improvement on the Mortgaged
Property is a condominium unit, it is included under the coverage afforded by a
blanket policy for the condominium project; if upon origination of the related
Mortgage Loan, the improvements on the Mortgaged Property were in an area
identified as a federally designated flood area, a flood insurance policy is in
effect in an amount representing coverage not less than the least of (i) the
outstanding principal balance of the Mortgage Loan, (ii) the restorable cost of
improvements located on such Mortgaged Property or (iii) the maximum coverage
available under federal law; and each Mortgage obligates the Mortgagor
thereunder to maintain the insurance referred to above at the Mortgagor's cost
and expense;
(xv) each Mortgage Loan constitutes a "qualified mortgage" under
Section 860G(a)(3)(A) of the Code and Treasury Regulation Section
1.860G-2(a)(1);
(xvi) each Mortgage Loan was originated or funded by (a) a savings and
loan association, savings bank, commercial bank, credit union, insurance company
or similar institution which is supervised and examined by a federal or state
authority (or originated by (i) a subsidiary of any of the foregoing
institutions which subsidiary is actually supervised and examined by applicable
regulatory authorities or (ii) a mortgage loan correspondent of any of the
foregoing and that was originated pursuant to the criteria established by any of
the foregoing) or (b) a mortgagee approved by the Secretary of Housing and Urban
Development pursuant to sections 203 and 211 of the National Housing Act, as
amended;
(xvii) none of the Mortgage Loans are (a) loans subject to 12 CFR Part
226.31, 12 CFR Part 226.32 or 12 CFR Part 226.34 of Regulation Z, the regulation
implementing TILA, which implements the Home Ownership and Equity Protection Act
of 1994, as amended or (b) classified and/or defined as a "high cost home loan"
under any federal, state or local law, including, but not limited to, the States
of Georgia or North Carolina;
(xviii) no loan is a High-Cost Home Loan under the New Jersey Home
Ownership Security Act of 2002;
(xix) no loan in the transaction originated in New Mexico is a
High-Cost Home Loan under the New Mexico Home Loan Protection Act;
(xx) the information set forth in Schedule A of the Prospectus
Supplement with respect to the Mortgage Loans is true and correct in all
material respects;
(xxi) no Mortgage Loan is a High Cost Loan or Covered Loan, as
applicable (as such terms are defined in Standard & Poor's LEVELS(R) Glossary,
Version 5.6 Revised, Appendix E, attached hereto as Exhibit 6) and no Mortgage
Loan originated on or after October 1, 2002 through March 6, 2003 is governed by
the "Georgia Fair Lending Act";
(xxii) each Mortgage Loan was originated in accordance with the
underwriting guidelines of the related originator;
(xxiii) each original Mortgage has been recorded or is in the process
of being recorded in accordance with the requirements of Section 2.01 of the
Pooling and Servicing Agreement in the appropriate jurisdictions wherein such
recordation is required to perfect the lien thereof for the benefit of the Trust
Fund;
(xxiv) the related Mortgage File contains each of the documents and
instruments listed in Section 2.01 of the Pooling and Servicing Agreement,
subject to any exceptions, substitutions and qualifications as are set forth in
such Section;
(xxv) the Mortgage Loans are currently being serviced in accordance
with accepted servicing practices; and
(xxvi) at the time of origination, each Mortgaged Property was the
subject of an appraisal which conformed to the underwriting requirements of the
originator of the Mortgage Loan, and the appraisal is in a form which was
acceptable to ▇▇▇▇▇▇ Mae or FHLMC at the time of origination.
It is understood and agreed that the representations and
warranties set forth in this Section 7 will inure to the benefit of the
Purchaser, its successors and assigns, notwithstanding any restrictive or
qualified endorsement on any Mortgage Note or assignment of Mortgage or the
examination of any Mortgage File. Upon any substitution for a Mortgage Loan, the
representations and warranties set forth above shall be deemed to be made by the
Mortgage Loan Seller as to any Substitute Mortgage Loan as of the date of
substitution.
Upon discovery or receipt of notice by the Mortgage Loan
Seller, the Purchaser or the Trustee of a breach of any representation or
warranty of the Mortgage Loan Seller set forth in this Section 7 which
materially and adversely affects the value of the interests of the Purchaser,
the Certificateholders or the Trustee in any of the Mortgage Loans delivered to
the Purchaser pursuant to this Agreement, the party discovering or receiving
notice of such breach shall give prompt written notice to the others. In the
case of any such breach of a representation or warranty set forth in this
Section 7, within 90 days from the date of discovery by the Mortgage Loan
Seller, or the date the Mortgage Loan Seller is notified by the party
discovering or receiving notice of such breach (whichever occurs earlier), the
Mortgage Loan Seller will (i) cure such breach in all material respects, (ii)
purchase the affected Mortgage Loan at the applicable Purchase Price or (iii) if
within two years of the Closing Date, substitute a qualifying Substitute
Mortgage Loan in exchange for such Mortgage Loan. The obligations of the
Mortgage Loan Seller to cure, purchase or substitute a qualifying Substitute
Mortgage Loan shall constitute the Purchaser's, the Trustee's and the
Certificateholder's sole and exclusive remedy under this Agreement or otherwise
respecting a breach of representations or warranties hereunder with respect to
the Mortgage Loans, except for the obligation of the Mortgage Loan Seller to
indemnify the Purchaser for such breach as set forth in and limited by Section
13 hereof.
Any cause of action against the Mortgage Loan Seller or
relating to or arising out of a breach by the Mortgage Loan Seller of any
representations and warranties made in this Section 7 shall accrue as to any
Mortgage Loan upon (i) discovery of such breach by the Mortgage Loan Seller or
notice thereof by the party discovering such breach and (ii) failure by the
Mortgage Loan Seller to cure such breach, purchase such Mortgage Loan or
substitute a qualifying Substitute Mortgage Loan pursuant to the terms hereof.
REPRESENTATIONS AND WARRANTIES CONCERNING THE MORTGAGE LOAN SELLER.
As of the date hereof and as of the Closing Date, the Mortgage Loan Seller
represents and warrants to the Purchaser as to itself in the capacity indicated
as follows:
(a) the Mortgage Loan Seller (i) is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and (ii) is qualified and in good standing to do business in each jurisdiction
where such qualification is necessary, except where the failure so to qualify
would not reasonably be expected to have a material adverse effect on the
Mortgage Loan Seller's business as presently conducted or on the Mortgage Loan
Sellers ability to enter into this Agreement and to consummate the transactions
contemplated hereby;
(b) the Mortgage Loan Seller has full power to own its property, to
carry on its business as presently conducted and to enter into and perform its
obligations under this Agreement;
(c) the execution and delivery by the Mortgage Loan Seller of this
Agreement have been duly authorized by all necessary action on the part of the
Mortgage Loan Seller; and neither the execution and delivery of this Agreement,
nor the consummation of the transactions herein contemplated, nor compliance
with the provisions hereof, will conflict with or result in a breach of, or
constitute a default under, any of the provisions of any law, governmental rule,
regulation, judgment, decree or order binding on the Mortgage Loan Seller or its
properties or the charter or by-laws of the Mortgage Loan Seller, except those
conflicts, breaches or defaults which would not reasonably be expected to have a
material adverse effect on the Mortgage Loan Seller's ability to enter into this
Agreement and to consummate the transactions contemplated hereby;
(d) the execution, delivery and performance by the Mortgage Loan Seller
of this Agreement and the consummation of the transactions contemplated hereby
do not require the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action in respect of, any state,
federal or other governmental authority or agency, except those consents,
approvals, notices, registrations or other actions as have already been
obtained, given or made and, in connection with the recordation of the
Mortgages, powers of attorney or assignments of Mortgages not yet completed;
(e) this Agreement has been duly executed and delivered by the Mortgage
Loan Seller and, assuming due authorization, execution and delivery by the
Purchaser, constitutes a valid and binding obligation of the Mortgage Loan
Seller enforceable against it in accordance with its terms (subject to
applicable bankruptcy and insolvency laws and other similar laws affecting the
enforcement of the rights of creditors generally);
(f) there are no actions, suits or proceedings pending or, to the
knowledge of the Mortgage Loan Seller, threatened against the Mortgage Loan
Seller, before or by any court, administrative agency, arbitrator or
governmental body (i) with respect to any of the transactions contemplated by
this Agreement or (ii) with respect to any other matter which in the judgment of
the Mortgage Loan Seller will be determined adversely to the Mortgage Loan
Seller and will if determined adversely to the Mortgage Loan Seller materially
and adversely affect the Mortgage Loan Seller's ability to perform its
obligations under this Agreement; and the Mortgage Loan Seller is not in default
with respect to any order of any court, administrative agency, arbitrator or
governmental body so as to materially and adversely affect the transactions
contemplated by this Agreement; and
(g) the Mortgage Loan Seller's Information (as defined in Section 13(a)
hereof) does not include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements made, in light
of the circumstances under which they were made, not misleading.
REPRESENTATIONS AND WARRANTIES CONCERNING THE PURCHASER. As of the date
hereof and as of the Closing Date, the Purchaser represents and warrants to the
Mortgage Loan Seller as follows:
(a) the Purchaser (i) is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and (ii) is
qualified and in good standing as a foreign corporation to do business in each
jurisdiction where such qualification is necessary, except where the failure so
to qualify would not reasonably be expected to have a material adverse effect on
the Purchaser's business as presently conducted or on the Purchaser's ability to
enter into this Agreement and to consummate the transactions contemplated
hereby;
(b) the Purchaser has full corporate power to own its property, to
carry on its business as presently conducted and to enter into and perform its
obligations under this Agreement;
(c) the execution and delivery by the Purchaser of this Agreement have
been duly authorized by all necessary corporate action on the part of the
Purchaser; and neither the execution and delivery of this Agreement, nor the
consummation of the transactions herein contemplated, nor compliance with the
provisions hereof, will conflict with or result in a breach of, or constitute a
default under, any of the provisions of any law, governmental rule, regulation,
judgment, decree or order binding on the Purchaser or its properties or the
articles of incorporation or by-laws of the Purchaser, except those conflicts,
breaches or defaults which would not reasonably be expected to have a material
adverse effect on the Purchaser's ability to enter into this Agreement and to
consummate the transactions contemplated hereby;
(d) the execution, delivery and performance by the Purchaser of this
Agreement and the consummation of the transactions contemplated hereby do not
require the consent or approval of, the giving of notice to, the registration
with, or the taking of any other action in respect of, any state, federal or
other governmental authority or agency, except those consents, approvals,
notices, registrations or other actions as have already been obtained, given or
made;
(e) this Agreement has been duly executed and delivered by the
Purchaser and, assuming due authorization, execution and delivery by the
Mortgage Loan Seller, constitutes a valid and binding obligation of the
Purchaser enforceable against it in accordance with its terms (subject to
applicable bankruptcy and insolvency laws and other similar laws affecting the
enforcement of the rights of creditors generally);
(f) there are no actions, suits or proceedings pending or, to the
knowledge of the Purchaser, threatened against the Purchaser, before or by any
court, administrative agency, arbitrator or governmental body (i) with respect
to any of the transactions contemplated by this Agreement or (ii) with respect
to any other matter which in the judgment of the Purchaser will be determined
adversely to the Purchaser and will if determined adversely to the Purchaser
materially and adversely affect the Purchaser's ability to perform its
obligations under this Agreement; and the Purchaser is not in default with
respect to any order of any court, administrative agency, arbitrator or
governmental body so as to materially and adversely affect the transactions
contemplated by this Agreement; and
(g) the Purchaser's Information (as defined in Section 13(b) hereof)
does not include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements made, in light of the
circumstances under which they were made, not misleading.
CONDITIONS TO CLOSING.
(a) The obligations of the Purchaser under this Agreement will be
subject to the satisfaction, on or prior to the Closing Date, of the following
conditions:
(i) Each of the obligations of the Mortgage Loan Seller
required to be performed at or prior to the Closing Date pursuant to
the terms of this Agreement shall have been duly performed and complied
with in all material respects; all of the representations and
warranties of the Mortgage Loan Seller under this Agreement shall be
true and correct as of the date or dates specified in all material
respects; and no event shall have occurred which, with notice or the
passage of time, would constitute a default under this Agreement, or
the Pooling and Servicing Agreement; and the Purchaser shall have
received certificates to that effect signed by authorized officers of
the Mortgage Loan Seller.
(ii) The Purchaser shall have received all of the following
closing documents, 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 respective terms
thereof:
(1) If required pursuant to Section 3 hereof, the Amendment
dated as of the Closing Date and any documents referred to therein;
(2) If required pursuant to Section 3 hereof, the Final
Mortgage Loan Schedule containing the information set forth on Exhibit
2 hereto, one copy to be attached to each counterpart of the Amendment;
(3) The Pooling and Servicing Agreement, in form and substance
reasonably satisfactory to the Trustee and the Purchaser, and all
documents required thereby duly executed by all signatories;
(4) A certificate of an officer of the Mortgage Loan Seller
dated as of the Closing Date, in a form reasonably acceptable to the
Purchaser, and attached thereto the resolutions of the Mortgage Loan
Seller authorizing the transactions contemplated by this Agreement,
together with copies of the charter and by-laws of the Mortgage Loan
Seller;
(5) One or more opinions of counsel from the Mortgage Loan
Seller's counsel otherwise in form and substance reasonably
satisfactory to the Purchaser, the Trustee and each Rating Agency;
(6) A letter from each of the Rating Agencies giving each
Class of Certificates set forth on Schedule A the rating set forth on
Schedule A; and
(7) Such other documents, certificates (including additional
representations and warranties) and opinions as may be reasonably
necessary to secure the intended ratings from each Rating Agency for
the Certificates.
(iii) The Certificates to be sold to Bear ▇▇▇▇▇▇▇ pursuant to
the Underwriting Agreement and the Purchase Agreement shall have been
issued and sold to Bear ▇▇▇▇▇▇▇.
(iv) The Mortgage Loan Seller shall have furnished to the
Purchaser such other certificates of its officers or others and such
other documents and opinions of counsel to evidence fulfillment of the
conditions set forth in this Agreement and the transactions
contemplated hereby as the Purchaser and its counsel may reasonably
request.
(b) The obligations of the Mortgage Loan Seller under this
Agreement shall be subject to the satisfaction, on or prior to the Closing Date,
of the following conditions:
(i) The obligations of the Purchaser required to be performed
by it on or prior to the Closing Date pursuant to the terms of this
Agreement shall have been duly performed and complied with in all
material respects, and all of the representations and warranties of the
Purchaser under this Agreement shall be true and correct in all
material respects as of the date hereof and as of the Closing Date, and
no event shall have occurred which would constitute a breach by it of
the terms of this Agreement, and the Mortgage Loan Seller shall have
received a certificate to that effect signed by an authorized officer
of the Purchaser.
(ii) The Mortgage Loan Seller shall have received copies of
all of the following closing documents, in such forms as are agreed
upon and reasonably acceptable to the Mortgage Loan Seller, duly
executed by all signatories other than the Mortgage Loan Seller as
required pursuant to the respective terms thereof:
(1) If required pursuant to Section 3 hereof, the
Amendment dated as of the Closing Date and any documents
referred to therein;
(2) The Pooling and Servicing Agreement, in form and
substance reasonably satisfactory to the Mortgage Loan Seller,
and all documents required thereby duly executed by all
signatories;
(3) A certificate of an officer of the Purchaser
dated as of the Closing Date, in a form reasonably acceptable
to the Mortgage Loan Seller, and attached thereto the
resolutions of the Purchaser authorizing the transactions
contemplated by this Agreement and the Pooling and Servicing
Agreement, together with copies of the Purchaser's articles of
incorporation, and evidence as to the good standing of the
Purchaser dated as of a recent date;
(4) One or more opinions of counsel from the
Purchaser's counsel in form and substance reasonably
satisfactory to the Mortgage Loan Seller;
(5) Such other documents, certificates (including
additional representations and warranties) and opinions as may
be reasonably necessary to secure the intended rating from
each Rating Agency for the Certificates;
FEES AND EXPENSES. Subject to Section 16 hereof, the Mortgage Loan
Seller shall pay on the Closing Date or such later date as may be agreed to by
the Purchaser (i) the fees and expenses of the Mortgage Loan Seller's attorneys
and the reasonable fees and expenses of the Purchaser's attorneys, (ii) the fees
and expenses of Deloitte & Touche LLP, (iii) the fee for the use of Purchaser's
Registration Statement based on the aggregate original principal amount of the
Certificates and the filing fee of the Commission as in effect on the date on
which the Registration Statement was declared effective, (iv) the fees and
expenses including counsel's fees and expenses in connection with any "blue sky"
and legal investment matters, (v) the fees and expenses of the Trustee which
shall include without limitation the fees and expenses of the Trustee (and the
fees and disbursements of its counsel) with respect to (A) legal and document
review of this Agreement, the Pooling and Servicing Agreement, the Certificates
and related agreements, (B) attendance at the Closing and (C) review of the
Mortgage Loans to be performed by the Custodian, (vi) the expenses for printing
or otherwise reproducing the Certificates, the Prospectus and the Prospectus
Supplement, (vii) the fees and expenses of each Rating Agency (both initial and
ongoing), (viii) the fees and expenses relating to the preparation and
recordation of mortgage assignments (including intervening assignments, if any
and if available, to evidence a complete chain of title from the originator to
the Trustee) from the Mortgage Loan Seller to the Trustee or the expenses
relating to the Opinion of Counsel referred to in Section 6(a) hereof, as the
case may be, and (ix) Mortgage File due diligence expenses and other
out-of-pocket expenses incurred by the Purchaser in connection with the purchase
of the Mortgage Loans and by Bear ▇▇▇▇▇▇▇ in connection with the sale of the
Certificates. The Mortgage Loan Seller additionally agrees to pay directly to
any third party on a timely basis the fees provided for above which are charged
by such third party and which are billed periodically.
ACCOUNTANTS' LETTERS.
(a) Deloitte & Touche LLP will review the characteristics of a sample
of the Mortgage Loans described in the Final Mortgage Loan Schedule and will
compare those characteristics to the description of the Mortgage Loans contained
in the Prospectus Supplement under the captions "Summary of Prospectus
Supplement--The Mortgage Loans", "The Mortgage Pool" and "Certain
Characteristics of the Mortgage Loans" in Schedule A thereto. The Mortgage Loan
Seller will cooperate with the Purchaser in making available all information and
taking all steps reasonably necessary to permit such accountants to complete the
review and to deliver the letters required of them under the Underwriting
Agreement. Deloitte & Touche LLP will also confirm certain calculations as set
forth under the caption "Yield On The Certificates" in the Prospectus
Supplement.
(b) To the extent statistical information with respect to the Master
Servicer or any Servicer's servicing portfolio is included in the Prospectus
Supplement under the caption "The Master Servicer and the Servicers," a letter
from the certified public accountant for such Master Servicer, Servicer or
Servicers, as applicable, will be delivered to the Purchaser dated the date of
the Prospectus Supplement, in the form previously agreed to by the Mortgage Loan
Seller and the Purchaser, with respect to such statistical information.
INDEMNIFICATION.
(a) The Mortgage Loan Seller shall indemnify and hold harmless the
Purchaser and its directors, officers and controlling persons (as defined in
Section 15 of the Securities Act) from and against any loss, claim, damage or
liability or action in respect thereof, to which they or any of them may become
subject, under the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon (i) any untrue
statement of a material fact contained in the MORTGAGE LOAN SELLER'S INFORMATION
as identified in EXHIBIT 3, the omission to state in the Prospectus Supplement
or Prospectus (or any amendment thereof or supplement thereto approved by the
Mortgage Loan Seller and in which additional Mortgage Loan Seller's Information
is identified), in reliance upon and in conformity with Mortgage Loan Seller's
Information a material fact required to be stated therein or necessary to make
the statements therein in light of the circumstances in which they were made,
not misleading, (ii) any representation or warranty assigned or made by the
Mortgage Loan Seller in Section 7 or Section 8 hereof being, or alleged to be,
untrue or incorrect, or (iii) any failure by the Mortgage Loan Seller to perform
its obligations under this Agreement; and the Mortgage Loan Seller shall
reimburse the Purchaser and each other indemnified party for any legal and other
expenses reasonably incurred by them in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action.
The foregoing indemnity agreement is in addition to any
liability which the Mortgage Loan Seller otherwise may have to the Purchaser or
any other such indemnified party.
(b) The Purchaser shall indemnify and hold harmless the Mortgage Loan
Seller and its respective directors, officers and controlling persons (as
defined in Section 15 of the Securities Act) from and against any loss, claim,
damage or liability or action in respect thereof, to which they or any of them
may become subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon (i) any
untrue statement of a material fact contained in the PURCHASER'S INFORMATION as
identified in EXHIBIT 4, the omission to state in the Prospectus Supplement or
Prospectus (or any amendment thereof or supplement thereto approved by the
Purchaser and in which additional Purchaser's Information is identified), in
reliance upon and in conformity with the Purchaser's Information, a material
fact required to be stated therein or necessary to make the statements therein
in light of the circumstances in which they were made, not misleading, (ii) any
representation or warranty made by the Purchaser in Section 9 hereof being, or
alleged to be, untrue or incorrect, or (iii) any failure by the Purchaser to
perform its obligations under this Agreement; and the Purchaser shall reimburse
the Mortgage Loan Seller, and each other indemnified party for any legal and
other expenses reasonably incurred by them in connection with investigating or
defending or preparing to defend any such loss, claim, damage, liability or
action. The foregoing indemnity agreement is in addition to any liability which
the Purchaser otherwise may have to the Mortgage Loan Seller, or any other such
indemnified party,
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify each party against whom indemnification is
to be sought in writing of the commencement thereof (but the failure so to
notify an indemnifying party shall not relieve it from any liability which it
may have under this Section 13 except to the extent that it has been prejudiced
in any material respect by such failure or from any liability which it may have
otherwise). In case any such action is brought against any indemnified party,
and it notifies an indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent it
may elect by written notice delivered to the indemnified party promptly (but, in
any event, within 30 days) after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such indemnified party or parties unless (i) the employment of
such counsel shall have been authorized in writing by one of the indemnifying
parties in connection with the defense of such action, (ii) the indemnifying
parties shall not have employed counsel to have charge of the defense of such
action within a reasonable time after notice of commencement of the action, or
(iii) such indemnified party or parties shall have reasonably concluded that
there is a conflict of interest between itself or themselves and the
indemnifying party in the conduct of the defense of any claim or that the
interests of the indemnified party or parties are not substantially co-extensive
with those of the indemnifying party (in which case the indemnifying parties
shall not have the right to direct the defense of such action on behalf of the
indemnified party or parties), in any of which events such fees and expenses
shall be borne by the indemnifying parties; PROVIDED, HOWEVER, that the
indemnifying party shall be liable only for the fees and expenses of one counsel
in addition to one local counsel in the jurisdiction involved. Anything in this
subsection to the contrary notwithstanding, an indemnifying party shall not be
liable for any settlement or any claim or action effected without its written
consent; PROVIDED, HOWEVER, that such consent was not unreasonably withheld.
(d) If the indemnification provided for in paragraphs (a) and (b) of
this Section 13 shall for any reason be unavailable to an indemnified party in
respect of any loss, claim, damage or liability, or any action in respect
thereof, referred to in Section 13, then the indemnifying party shall in lieu of
indemnifying the indemnified party contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, in such proportion as shall be appropriate to reflect
the relative benefits received by the Mortgage Loan Seller on the one hand and
the Purchaser on the other from the purchase and sale of the Mortgage Loans, the
offering of the Mortgage Pass-Through Certificates and the other transactions
contemplated hereunder. No person found liable for a fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who is not also found liable
for such fraudulent misrepresentation.
(e) The parties hereto agree that reliance by an indemnified party on
any publicly available information or any information or directions furnished by
an indemnifying party shall not constitute negligence, bad faith or willful
misconduct by such indemnified party.
NOTICES. All demands, notices and communications hereunder shall be in
writing but may be delivered by facsimile transmission subsequently confirmed in
writing. Notices to the Mortgage Loan Seller shall be directed to EMC Mortgage
Corporation, Mac ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇ (Telecopy: (972-444-2880)), and notices to the Purchaser shall be
directed to Structured Asset Mortgage Investments II Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (Telecopy: (212-272-7206)), Attention: ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇; or to any other address as may hereafter be furnished by one party
to the other party by like notice. Any such demand, notice or communication
hereunder shall be deemed to have been received on the date 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) provided that it is received on a
business day during normal business hours and, if received after normal business
hours, then it shall be deemed to be received on the next business day.
TRANSFER OF MORTGAGE LOANS. The Purchaser retains the right to assign
the Mortgage Loans and any or all of its interest under this Agreement to the
Trustee without the consent of the Mortgage Loan Seller, and, upon such
assignment, the Trustee shall succeed to the applicable rights and obligations
of the Purchaser hereunder; PROVIDED, HOWEVER, the Purchaser shall remain
entitled to the benefits set forth in Sections 11, 13 and 17 hereto and as
provided in Section 2(a). Notwithstanding the foregoing, the sole and exclusive
right and remedy of the Trustee with respect to a breach of representation or
warranty of the Mortgage Loan Seller shall be the purchase or substitution
obligations of the Mortgage Loan Seller contained in Sections 5 and 7 hereof.
TERMINATION. This Agreement may be terminated (a) by the mutual consent
of the parties hereto prior to the Closing Date, (b) by the Purchaser, if the
conditions to the Purchaser's obligation to close set forth under Section 10(a)
hereof are not fulfilled as and when required to be fulfilled or (c) by the
Mortgage Loan Seller, if the conditions to the Mortgage Loan Seller's obligation
to close set forth under Section 10(b) hereof are not fulfilled as and when
required to be fulfilled. In the event of termination pursuant to clause (b),
the Mortgage Loan Seller shall pay, and in the event of termination pursuant to
clause (c), the Purchaser shall pay, all reasonable out-of-pocket expenses
incurred by the other in connection with the transactions contemplated by this
Agreement. In the event of a termination pursuant to clause (a), each party
shall be responsible for its own expenses.
REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties and agreements contained in this Agreement, or
contained in certificates of officers of the Mortgage Loan Seller submitted
pursuant hereto, shall remain operative and in full force and effect and shall
survive delivery of the Mortgage Loans to the Purchaser (and by the Purchaser to
the Trustee). Subsequent to the delivery of the Mortgage Loans to the Purchaser,
the Mortgage Loan Seller's representations and warranties contained herein with
respect to the Mortgage Loans shall be deemed to relate to the Mortgage Loans
actually delivered to the Purchaser and included in the Final Mortgage Loan
Schedule and any Substitute Mortgage Loan and not to those Mortgage Loans
deleted from the Preliminary Mortgage Loan Schedule pursuant to Section 3 hereof
prior to the Closing.
SEVERABILITY. If any provision of this Agreement shall be prohibited or
invalid under applicable law, the Agreement shall be ineffective only to such
extent, without invalidating the remainder of this Agreement.
COUNTERPARTS. This Agreement may be executed in counterparts, each of
which will be an original, but which together shall constitute one and the same
agreement.
AMENDMENT. This Agreement cannot be amended or modified in any manner
without the prior written consent of each party.
GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT
OF LAWS PRINCIPLES THEREOF OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW.
FURTHER ASSURANCES. Each of the parties agrees to execute and deliver
such instruments and take such actions as another party may, from time to time,
reasonably request in order to effectuate the purpose and to carry out the terms
of this Agreement including any amendments hereto which may be required by
either Rating Agency.
SUCCESSORS AND ASSIGNS.
This Agreement shall bind and inure to the benefit of and be
enforceable by the Mortgage Loan Seller and the Purchaser and their permitted
successors and assigns and, to the extent specified in Section 13 hereof, Bear
▇▇▇▇▇▇▇, and their directors, officers and controlling persons (within the
meaning of federal securities laws). The Mortgage Loan Seller acknowledges and
agrees that the Purchaser may assign its rights under this Agreement (including,
without limitation, with respect to the Mortgage Loan Seller's representations
and warranties respecting the Mortgage Loans) to the Trustee. Any person into
which the Mortgage Loan Seller may be merged or consolidated (or any person
resulting from any merger or consolidation involving the Mortgage Loan Seller),
any person resulting from a change in form of the Mortgage Loan Seller or any
person succeeding to the business of the Mortgage Loan Seller, shall be
considered the "successor" of the Mortgage Loan Seller hereunder and shall be
considered a party hereto without the execution or filing of any paper or any
further act or consent on the part of any party hereto. Except as provided in
the two preceding sentences, this Agreement cannot be assigned, pledged or
hypothecated by either party hereto without the written consent of the other
parties to this Agreement and any such assignment or purported assignment shall
be deemed null and void.
THE MORTGAGE LOAN SELLER. The Mortgage Loan Seller will keep in full
force and effect its existence, all rights and franchises as a corporation under
the laws of the State of its incorporation and will obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is necessary to perform its obligations under this
Agreement.
ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding between the parties with respect to the subject matter hereof, and
supersedes all prior and contemporaneous agreements, understandings, inducements
and conditions, express or implied, oral or written, of any nature whatsoever
with respect to the subject matter hereof.
NO PARTNERSHIp. Nothing herein contained shall be deemed or construed
to create a partnership or joint venture between the parties hereto.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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.
EMC MORTGAGE CORPORATION
By:
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
STRUCTURED ASSET MORTGAGE INVESTMENTS II INC.
By:
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
EXHIBIT 1
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 or its designee, and which shall be delivered to the Purchaser or its
designee pursuant to the terms of the Agreement.
(a) with respect to each Mortgage Loan (other than a Cooperative Loan):
(i) The original Mortgage Note, endorsed without recourse to
the order of the Trustee and showing an unbroken chain of endorsements
from the originator thereof to the Person endorsing it to the Trustee,
or a lost note affidavit together with a copy of the related Mortgage
Note;
(ii) The original Mortgage and, if the related Mortgage Loan
is a MOM Loan, noting the presence of the MIN and language indicating
that such Mortgage Loan is a MOM Loan, which shall have been recorded
(or if the original is not available, a copy), with evidence of such
recording indicated thereon (or if the original is not available, a
copy), with evidence of such recording indicated thereon (or if the
original Security Instrument, assignments to the Trustee or intervening
assignments thereof which have been delivered, are being delivered or
will, upon receipt of recording information relating to the Security
Instrument required to be included thereon, be delivered to recording
offices for recording and have not been returned to the Seller in time
to permit their recording as specified in Section 2.01(b) of the
Pooling and Servicing Agreement, shall be in recordable form);
(iii) unless the Mortgage Loan is a MOM Loan, a certified copy
of the assignment (which may be in the form of a blanket assignment if
permitted in the jurisdiction in which the Mortgaged Property is
located) to "U.S. Bank National Association, as Trustee", with evidence
of recording with respect to each Mortgage Loan in the name of the
Trustee thereon (or if (A) the original Security Instrument,
assignments to the Trustee or intervening assignments thereof which
have been delivered, are being delivered or will, upon receipt of
recording information relating to the Security Instrument required to
be included thereon, be delivered to recording offices for recording
and have not been returned to the Seller in time to permit their
delivery as specified in Section 2.01(b) of the Pooling and Servicing
Agreement, the Seller may deliver a true copy thereof with a
certification by the Seller, on the face of such copy, substantially as
follows: "Certified to be a true and correct copy of the original,
which has been transmitted for recording" or (B) the related Mortgaged
Property is located in a state other than Maryland and an Opinion of
Counsel has been provided as set forth in Section 2.01(b) of the
Pooling and Servicing Agreement, shall be in recordable form);
(iv) all intervening assignments of the Security Instrument,
if applicable and only to the extent available to the Mortgage Loan
Seller with evidence of recording thereon;
(v) the original or a copy of the policy or certificate of
primary mortgage guaranty insurance, to the extent available, if any;
(vi) the original policy of title insurance or mortgagee's
certificate of title insurance or commitment or binder for title
insurance; and
(vii) originals of all modification agreements, if applicable
and available.
(b) with respect to each Cooperative Loan so assigned:
(i) The original Mortgage Note, endorsed without recourse to
the order of the Trustee and showing an unbroken chain of endorsements
from the originator thereof to the Person endorsing it to the Trustee,
or lost note affidavit, together with a copy of the related Mortgage
Note;
(ii) A counterpart of the Cooperative Lease and the Assignment
of Proprietary Lease to the originator of the Cooperative Loan with
intervening assignments showing an unbroken chain of title from such
originator to the Trustee;
(iii) The related Cooperative Stock Certificate, representing
the related Cooperative Stock pledged with respect to such Cooperative
Loan, together with an undated stock power (or other similar
instrument) executed in blank;
(iv) The original recognition agreement by the Cooperative of
the interests of the mortgagee with respect to the related Cooperative
Loan and any transfer documents related to the recognition agreement;
(v) The Security Agreement;
(vi) Copies of the original UCC-1 financing statement, and any
continuation statements, filed by the originator of such Cooperative
Loan as secured party, each with evidence of recording thereof,
evidencing the interest of the originator under the Security Agreement
and the Assignment of Proprietary Lease;
(vii) Copies of the filed UCC-3 assignments of the security
interest referenced in clause (vi) above showing an unbroken chain of
title from the originator to the Trustee, each with evidence of
recording thereof, evidencing the interest of the originator under the
Security Agreement and the Assignment of Proprietary Lease;
(viii) An executed assignment of the interest of the
originator in the Security Agreement and Assignment of Proprietary
Lease, showing an unbroken chain of title from the originator to the
Trustee; and
(ix) The original of each modification, assumption agreement
or preferred loan agreement, if any, relating to such Cooperative Loan.
EXHIBIT 2
MORTGAGE LOAN SCHEDULE INFORMATION
The Preliminary and Final Mortgage Loan Schedules shall set forth the
following information with respect to each Mortgage Loan:
(a) the loan number;
(b) the city, state and zip code of the Mortgaged Property;
(c) the property type;
(d) the Mortgage Interest Rate;
(e) the Servicing Rate;
(f) the Net Rate;
(g) the original term;
(h) the maturity date;
(i) the stated remaining term to maturity;
(j) the original principal balance;
(k) the first payment date;
(l) the principal and interest payment in effect as of the Cut-off Date;
(m) the unpaid principal balance as of the Cut-off Date;
(n) the Loan-to-Value Ratio at origination;
(o) paid-through date;
(p) the insurer of any Primary Mortgage Insurance Policy;
(q) the Gross Margin, if applicable;
(r) the Maximum Lifetime Mortgage Rate, if applicable;
(s) the Minimum Lifetime Mortgage Rate, if applicable;
(t) the Periodic Rate Cap, if applicable;
(u) the number of days delinquent, if any;
(v) which Mortgage Loans adjust after an initial fixed-rate period of three,
five, seven or ten years;
(w) the Loan Group; and
(x) the Servicer.
Such schedule also shall set forth for all of the Mortgage Loans, the total
number of Mortgage Loans, the total of each of the amounts described under (k)
and (n) above, the weighted average by principal balance as of the Cut-off Date
of each of the rates described under (e), (f) and (g) above, and the weighted
average remaining term to maturity by unpaid principal balance as of the Cut-off
Date.
EXHIBIT 3
MORTGAGE LOAN SELLER'S INFORMATION
All information in the Prospectus Supplement described under the
following Sections: "SUMMARY OF PROSPECTUS SUPPLEMENT--The Mortgage Loans," "THE
MORTGAGE POOL" and "SCHEDULE A--CERTAIN CHARACTERISTICS OF THE MORTGAGE LOANS."
EXHIBIT 4
PURCHASER'S INFORMATION
All information in the Prospectus Supplement and the Prospectus, except
the Mortgage Loan Seller's Information.
EXHIBIT 5
SCHEDULE OF LOST NOTES
Available Upon Request
EXHIBIT 6
APPENDIX E - Standard & Poor's Predatory Lending Categories
REVISED AUGUST 1, 2005
Standard & Poor's has categorized loans governed by anti-predatory lending laws
in the Jurisdictions listed below into three categories based upon a combination
of factors that include (a) the risk exposure associated with the assignee
liability and (b) the tests and thresholds set forth in those laws. Note that
certain loans classified by the relevant statute as Covered are included in
Standard & Poor's High Cost Loan Category because they included thresholds and
tests that are typical of what is generally considered High Cost by the
industry.
STANDARD & POOR'S HIGH COST LOAN CATEGORIZATION
-------------------------------------- ----------------------------------------------- -------------------------------
STATE/JURISDICTION NAME OF ANTI-PREDATORY LENDING LAW/EFFECTIVE CATEGORY UNDER APPLICABLE
DATE ANTI-PREDATORY LENDING LAW
-------------------------------------- ----------------------------------------------- -------------------------------
Arkansas Arkansas Home Loan Protection Act, Ark. Code High Cost Home Loan
▇▇▇. ▇▇.▇▇. ▇▇-▇▇-▇▇▇ ET SEQ.
Effective July 16, 2003
-------------------------------------- ----------------------------------------------- -------------------------------
Cleveland Heights, OH Ordinance No. 72-2003 (PSH), Mun. Code ▇▇.▇▇. Covered Loan
757.01 ET SEQ.
Effective June 2, 2003
-------------------------------------- ----------------------------------------------- -------------------------------
Colorado Consumer Equity Protection, Colo. Stat. ▇▇▇. Covered Loan
▇▇.▇▇. 5-3.5-101 ET SEQ.
Effective for covered loans offered or
entered into on or after January 1, 2003.
Other provisions of the Act took effect on
June 7, 2002
-------------------------------------- ----------------------------------------------- -------------------------------
Connecticut Connecticut Abusive Home Loan Lending High Cost Home Loan
Practices Act, Conn. Gen. Stat. ▇▇.▇▇. 36a-746
ET SEQ.
Effective October 1, 2001
-------------------------------------- ----------------------------------------------- -------------------------------
District of Columbia Home Loan Protection Act, D.C. Code ▇▇.▇▇. Covered Loan
26-1151.01 ET SEQ.
Effective for loans closed on or after
January 28, 2003
-------------------------------------- ----------------------------------------------- -------------------------------
Florida Fair Lending Act, Fla. Stat. ▇▇▇. ▇▇.▇▇. High Cost Home Loan
494.0078 ET SEQ.
Effective October 2, 2002
-------------------------------------- ----------------------------------------------- -------------------------------
Georgia (Oct. 1, 2002 - Mar. ▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇. Code ▇▇▇. ▇▇.▇▇. High Cost Home Loan
2003) 7-6A-1 ET SEQ.
-------------------------------------- ----------------------------------------------- -------------------------------
STANDARD & POOR'S HIGH COST LOAN CATEGORIZATION
-------------------------------------- ----------------------------------------------- -------------------------------
STATE/JURISDICTION NAME OF ANTI-PREDATORY LENDING LAW/EFFECTIVE CATEGORY UNDER APPLICABLE
DATE ANTI-PREDATORY LENDING LAW
-------------------------------------- ----------------------------------------------- -------------------------------
Effective October 1, 2002 - March 6, 2003
-------------------------------------- ----------------------------------------------- -------------------------------
Georgia as amended (Mar. 7, 2003 - Georgia Fair Lending Act, Ga. Code ▇▇▇. ▇▇.▇▇. High Cost Home Loan
current) 7-6A-1 ET SEQ.
Effective for loans closed on or after March
7, 2003
-------------------------------------- ----------------------------------------------- -------------------------------
HOEPA Section 32 Home Ownership and Equity Protection Act of High Cost Loan
1994, 15 U.S.C. ss. 1639, 12 C.F.R. ▇▇.▇▇.
226.32 and 226.34
Effective October 1, 1995, amendments October
1, 2002
-------------------------------------- ----------------------------------------------- -------------------------------
Illinois High Risk Home Loan Act, Ill. Comp. Stat. High Risk Home Loan
tit. 815, ▇▇.▇▇. 137/5 ET SEQ.
Effective January 1, 2004 (prior to this
date, regulations under Residential
Mortgage License Act effective from May
14, 2001)
-------------------------------------- ----------------------------------------------- -------------------------------
Kansas Consumer Credit Code, Kan. Stat. ▇▇▇. ▇▇.▇▇. High Loan to Value Consumer
16a-1-101 ET SEQ. Loan (id. ss. 16a-3-207) and;
Sections 16a-1-301 and 16a-3-207 became High APR Consumer Loan (id.
effective April 14, 1999; Section 16a-3-308a ss.16a-3-308a)
became effective July 1, 1999
-------------------------------------- ----------------------------------------------- -------------------------------
Kentucky 2003 KY H.B. 287 - High Cost Home Loan Act, High Cost Home Loan
Ky. Rev. Stat. ▇▇.▇▇. 360.100 ET SEQ.
Effective June 24, 2003
-------------------------------------- ----------------------------------------------- -------------------------------
Maine Truth in Lending, Me. Rev. Stat. tit. 9-A, High Rate High Fee Mortgage
ss.ss.8-101 ET SEQ.
Effective September 29, 1995 and as amended
from time to time
-------------------------------------- ----------------------------------------------- -------------------------------
Massachusetts Part 40 and Part 32, 209 C.M.R. ▇▇.▇▇. 32.00 ET High Cost Home Loan
SEQ. and 209 C.M.R. ▇▇.▇▇. 40.01 ET SEQ.
-------------------------------------- ----------------------------------------------- -------------------------------
STANDARD & POOR'S HIGH COST LOAN CATEGORIZATION
-------------------------------------- ----------------------------------------------- -------------------------------
STATE/JURISDICTION NAME OF ANTI-PREDATORY LENDING LAW/EFFECTIVE CATEGORY UNDER APPLICABLE
DATE ANTI-PREDATORY LENDING LAW
-------------------------------------- ----------------------------------------------- -------------------------------
Effective March 22, 2001 and amended from
time to time
-------------------------------------- ----------------------------------------------- -------------------------------
Nevada Assembly ▇▇▇▇ No. 284, Nev. Rev. Stat. ▇▇.▇▇. Home Loan
598D.010 ET SEQ.
Effective October 1, 2003
-------------------------------------- ----------------------------------------------- -------------------------------
New Jersey New Jersey Home Ownership Security Act of High Cost Home Loan
2002, N.J. Rev. Stat. ▇▇.▇▇. 46:10B-22 ET SEQ.
Effective for loans closed on or after
November 27, 2003
-------------------------------------- ----------------------------------------------- -------------------------------
New Mexico Home Loan Protection Act, N.M. Rev. Stat. ▇▇.▇▇. High Cost Home Loan
58-21A-1 ET SEQ.
Effective as of January 1, 2004; Revised as
of February 26, 2004
-------------------------------------- ----------------------------------------------- -------------------------------
New York N.Y. Banking Law Article 6-l High Cost Home Loan
Effective for applications made on or after
April 1, 2003
-------------------------------------- ----------------------------------------------- -------------------------------
North Carolina Restrictions and Limitations on High Cost High Cost Home Loan
Home Loans, N.C. Gen. Stat. ▇▇.▇▇. 24-1.1E ET
seq.
Effective July 1, 2000; amended October
1, 2003 (adding open-end lines of credit)
-------------------------------------- ----------------------------------------------- -------------------------------
Ohio H.B. 386 (codified in various sections of the Covered Loan
Ohio Code), Ohio Rev. Code ▇▇▇. ▇▇.▇▇. 1349.25
ET SEQ.
Effective May 24, 2002
-------------------------------------- ----------------------------------------------- -------------------------------
Oklahoma Consumer Credit Code (codified in various Subsection 10 Mortgage
sections of Title 14A)
Effective July 1, 2000; amended effective
January 1, 2004
-------------------------------------- ----------------------------------------------- -------------------------------
South Carolina South Carolina High Cost and Consumer Home High Cost Home Loan
Loans Act, S.C. Code
-------------------------------------- ----------------------------------------------- -------------------------------
STANDARD & POOR'S HIGH COST LOAN CATEGORIZATION
-------------------------------------- ----------------------------------------------- -------------------------------
STATE/JURISDICTION NAME OF ANTI-PREDATORY LENDING LAW/EFFECTIVE CATEGORY UNDER APPLICABLE
DATE ANTI-PREDATORY LENDING LAW
-------------------------------------- ----------------------------------------------- -------------------------------
▇▇▇. ▇▇.▇▇. 37-23-10 ET SEQ.
Effective for loans taken on or after January
1, 2004
-------------------------------------- ----------------------------------------------- -------------------------------
West Virginia West Virginia Residential Mortgage Lender, West Virginia Mortgage Loan
Broker and Servicer Act, W. Va. Code ▇▇▇. Act Loan
ss.ss.31-17-1 ET SEQ.
Effective June 5, 2002
-------------------------------------- ----------------------------------------------- -------------------------------
STANDARD & POOR'S COVERED LOAN CATEGORIZATION
-------------------------------------- ----------------------------------------------- -------------------------------
STATE/JURISDICTION NAME OF ANTI-PREDATORY LENDING LAW/EFFECTIVE CATEGORY UNDER APPLICABLE
DATE ANTI-PREDATORY LENDING LAW
-------------------------------------- ----------------------------------------------- -------------------------------
Georgia (Oct. 1, 2002 - Mar. ▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇. Code ▇▇▇. ▇▇.▇▇. Covered Loan
2003) 7-6A-1 ET SEQ.
Effective October 1, 2002 - March 6, 2003
-------------------------------------- ----------------------------------------------- -------------------------------
New Jersey New Jersey Home Ownership Security Act of Covered Home Loan
2002, N.J. Rev. Stat. ▇▇.▇▇. 46:10B-22 ET SEQ.
Effective November 27, 2003 - July 5, 2004
-------------------------------------- ----------------------------------------------- -------------------------------
STANDARD & POOR'S HOME LOAN CATEGORIZATION
-------------------------------------- ---------------------------------------------- --------------------------------
STATE/JURISDICTION NAME OF ANTI-PREDATORY LENDING LAW/EFFECTIVE CATEGORY UNDER APPLICABLE
DATE ANTI-PREDATORY LENDING LAW
-------------------------------------- ---------------------------------------------- --------------------------------
Georgia (Oct. 1, 2002 - Mar. ▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇. Code ▇▇▇. ▇▇.▇▇. Home Loan
2003) 7-6A-1 ET SEQ.
Effective October 1, 2002 - March 6, 2003
-------------------------------------- ---------------------------------------------- --------------------------------
New Jersey New Jersey Home Ownership Security Home Loan
-------------------------------------- ---------------------------------------------- --------------------------------
STANDARD & POOR'S HOME LOAN CATEGORIZATION
-------------------------------------- ---------------------------------------------- --------------------------------
STATE/JURISDICTION NAME OF ANTI-PREDATORY LENDING LAW/EFFECTIVE CATEGORY UNDER APPLICABLE
DATE ANTI-PREDATORY LENDING LAW
-------------------------------------- ---------------------------------------------- --------------------------------
Act of 2002, N.J. Rev. Stat. ▇▇.▇▇. 46:10B-22
ET SEQ.
Effective for loans closed on or after
November 27, 2003
-------------------------------------- ---------------------------------------------- --------------------------------
New Mexico Home Loan Protection Act, N.M. Rev. Stat. Home Loan
ss.ss.58-21A-1 ET SEQ.
Effective as of January 1, 2004; Revised as
of February 26, 2004
-------------------------------------- ---------------------------------------------- --------------------------------
North Carolina Restrictions and Limitations on High Cost Consumer Home Loan
Home Loans, N.C. Gen. Stat. ▇▇.▇▇. 24-1.1E
ET seq.
Effective July 1, 2000; amended October
1, 2003 (adding open-end lines of credit)
-------------------------------------- ---------------------------------------------- --------------------------------
South Carolina South Carolina High Cost and Consumer Home Consumer Home Loan
Loans Act, S.C. Code ▇▇▇. ▇▇.▇▇. 37-23-10
ET seq.
Effective for loans taken on or after
January 1, 2004
-------------------------------------- ---------------------------------------------- --------------------------------
SCHEDULE A
REQUIRED RATINGS FOR EACH CLASS OF CERTIFICATES
PUBLIC CERTIFICATES
Class Fitch ▇▇▇▇▇'▇ S&P
-------------------- ----------- ----------------------- -------------------
Class I-A-1......... -- Aaa AAA
Class I-A-2......... -- Aaa AAA
Class I-A-3......... -- Aaa AAA
Class I-PO.......... -- Aaa AAA
Class I-X........... -- Aaa AAA
Class I-R-1......... -- -- AAA
Class I-R-2......... -- -- AAA
Class I-R-3......... -- -- AAA
Class I-B-1......... -- Aa2 AA
Class I-B-2......... -- A2 A
Class I-B-3......... -- Baa2 BBB
Class I-XB.......... -- Aa2 AA
Class II-A-1........ AAA -- AAA
Class II-A-2........ AAA -- AAA
Class II-A-3........ AAA -- AAA
Class II-A-4........ AAA -- AAA
Class II-PO......... AAA -- AAA
Class II-X.......... AAA -- AAA
Class II-R-1........ AAA AAA AAA
Class II-B-1........ AA -- AA
Class II-B-2........ A -- A
Class II-B-3........ BBB -- BBB
None of the above ratings have been lowered since the respective dates of such
letters.
PRIVATE CERTIFICATES
Class S&P
------------------------------------- --------------------
Class I-B-4.......................... BB
Class I-B-5.......................... B
Class I-B-6.......................... --
Class II-B-4......................... BB
Class II-B-5......................... B
Class II-B-6......................... --
None of the above ratings have been lowered since the respective dates of such
letters.
SCHEDULE B
MORTGAGE LOAN SCHEDULE
***********************************************************************
Bear ▇▇▇▇▇▇▇ is not responsible for any recommendation, solicitation,
offer or agreement or any information about any transaction, customer
account or account activity contained in this communication.
***********************************************************************
EMC_LOAN_NO LOAN_SEQ TR_REC DOC_CUSTODIAN
----------- -------- ------ -------------
6506893 12740027 5968 ▇▇▇▇▇ FARGO
6507131 12740048 5968 ▇▇▇▇▇ FARGO
6507602 12740100 5967 ▇▇▇▇▇ FARGO
6506497 12740114 5968 ▇▇▇▇▇ FARGO
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6500938 12743312 5968 ▇▇▇▇▇ FARGO
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6504575 12743843 5968 ▇▇▇▇▇ FARGO
6504377 12743847 5968 ▇▇▇▇▇ FARGO
6520290 12802473 5968 ▇▇▇▇▇ FARGO
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6521470 12802591 5968 ▇▇▇▇▇ FARGO
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6528277 12805455 4876 ▇▇▇▇▇ FARGO
6528301 12805458 4876 ▇▇▇▇▇ FARGO
6528541 12805482 4876 ▇▇▇▇▇ FARGO
6528715 12805499 4876 ▇▇▇▇▇ FARGO
6524920 12805590 5967 ▇▇▇▇▇ FARGO
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6529523 12817169 5968 ▇▇▇▇▇ FARGO
6529556 12817172 5968 ▇▇▇▇▇ FARGO
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6529879 12817204 5968 ▇▇▇▇▇ FARGO
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6530232 12817240 5968 ▇▇▇▇▇ FARGO
6530240 12817241 5968 ▇▇▇▇▇ FARGO
6530307 12817247 5968 ▇▇▇▇▇ FARGO
6530539 12817270 5968 ▇▇▇▇▇ FARGO
6530679 12817284 5968 ▇▇▇▇▇ FARGO
6530794 12817296 5968 ▇▇▇▇▇ FARGO
6530992 12817316 5968 ▇▇▇▇▇ FARGO
6531008 12817317 5968 ▇▇▇▇▇ FARGO
6531123 12817329 5968 ▇▇▇▇▇ FARGO
6531248 12817341 5968 ▇▇▇▇▇ FARGO
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6531362 12817353 5968 ▇▇▇▇▇ FARGO
6531412 12817358 5968 ▇▇▇▇▇ FARGO
2424323 12824554 4876 ▇▇▇▇▇ FARGO
2424208 12824570 4876 ▇▇▇▇▇ FARGO
6589006 12903541 4876 ▇▇▇▇▇ FARGO
6590657 12903706 4876 ▇▇▇▇▇ FARGO
6591135 12906525 4876 ▇▇▇▇▇ FARGO
6591499 12906561 4876 ▇▇▇▇▇ FARGO
6592299 12906641 4876 ▇▇▇▇▇ FARGO
6592604 12906809 4876 ▇▇▇▇▇ FARGO
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6594212 12906970 4876 ▇▇▇▇▇ FARGO
6594428 12906991 4876 ▇▇▇▇▇ FARGO
6594816 12907030 4876 ▇▇▇▇▇ FARGO
6594832 12907032 4876 ▇▇▇▇▇ FARGO
6594998 12907048 4876 ▇▇▇▇▇ FARGO
6595375 12907086 4876 ▇▇▇▇▇ FARGO
6595433 12907092 4876 ▇▇▇▇▇ FARGO
6595458 12907094 4876 ▇▇▇▇▇ FARGO
6595516 12907100 4876 ▇▇▇▇▇ FARGO
6596050 12916164 4876 ▇▇▇▇▇ FARGO
6596605 12916219 4876 ▇▇▇▇▇ FARGO
6596969 12916255 4876 ▇▇▇▇▇ FARGO
6597017 12916260 4876 ▇▇▇▇▇ FARGO
6597314 12916290 4876 ▇▇▇▇▇ FARGO
6597546 12916313 4876 ▇▇▇▇▇ FARGO
6597694 12916328 4876 ▇▇▇▇▇ FARGO
6597926 12916351 4876 ▇▇▇▇▇ FARGO
6598049 12916363 4876 ▇▇▇▇▇ FARGO
6598668 12916425 4876 ▇▇▇▇▇ FARGO
6599245 12921918 4876 ▇▇▇▇▇ FARGO
6599583 12921952 4876 ▇▇▇▇▇ FARGO
6600530 12922048 4876 ▇▇▇▇▇ FARGO
6600621 12922057 4876 ▇▇▇▇▇ FARGO
6600738 12922068 4876 ▇▇▇▇▇ FARGO
6600993 12922094 4876 ▇▇▇▇▇ FARGO
6601462 12922141 4876 ▇▇▇▇▇ FARGO
6601660 12922161 4876 ▇▇▇▇▇ FARGO
6601702 12922165 4876 ▇▇▇▇▇ FARGO
6602163 12922214 4876 ▇▇▇▇▇ FARGO
6602296 12922227 4876 ▇▇▇▇▇ FARGO
6602445 12922242 4876 ▇▇▇▇▇ FARGO
6602452 12922243 4876 ▇▇▇▇▇ FARGO
6602460 12922244 4876 ▇▇▇▇▇ FARGO
6602478 12922245 4876 ▇▇▇▇▇ FARGO
6602510 12922249 4876 ▇▇▇▇▇ FARGO
6602528 12922250 4876 ▇▇▇▇▇ FARGO
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6602759 12922273 4876 ▇▇▇▇▇ FARGO
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6603518 12922349 4876 ▇▇▇▇▇ FARGO
6603625 12922360 4876 ▇▇▇▇▇ FARGO
6603757 12922373 4876 ▇▇▇▇▇ FARGO
6630875 13005391 5471 ▇▇▇▇▇ FARGO
6631790 13005483 5471 ▇▇▇▇▇ FARGO
6631964 13005500 5471 ▇▇▇▇▇ FARGO
6633002 13014595 616 ▇▇▇▇▇ FARGO
6633036 13014598 616 ▇▇▇▇▇ FARGO
6633259 13014620 616 ▇▇▇▇▇ FARGO
6633309 13014625 616 ▇▇▇▇▇ FARGO
6633366 13014631 616 ▇▇▇▇▇ FARGO
6633408 13014635 616 ▇▇▇▇▇ FARGO
6633424 13014637 616 ▇▇▇▇▇ FARGO
6634018 13014696 616 ▇▇▇▇▇ FARGO
6634091 13014704 616 ▇▇▇▇▇ FARGO
6634232 13014718 616 ▇▇▇▇▇ FARGO
6634265 13014721 616 ▇▇▇▇▇ FARGO
6634364 13014731 616 ▇▇▇▇▇ FARGO
6634455 13014740 616 ▇▇▇▇▇ FARGO
6634513 13014746 616 ▇▇▇▇▇ FARGO
6634638 13014758 616 ▇▇▇▇▇ FARGO
6635270 13016017 597 ▇▇▇▇▇ FARGO
6636799 13016169 596 ▇▇▇▇▇ FARGO
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6637102 13016200 597 ▇▇▇▇▇ FARGO
6638118 13016301 596 ▇▇▇▇▇ FARGO
6638415 13016331 596 ▇▇▇▇▇ FARGO
6643423 13025977 651 ▇▇▇▇▇ FARGO
6643688 13026003 651 ▇▇▇▇▇ FARGO
6644520 13026087 651 ▇▇▇▇▇ FARGO
6652002 13026835 5471 ▇▇▇▇▇ FARGO
6652069 13028064 619 ▇▇▇▇▇ FARGO
6657688 13084225 676 ▇▇▇▇▇ FARGO
6657951 13084285 5471 ▇▇▇▇▇ FARGO
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6653141 13095475 662 ▇▇▇▇▇ FARGO
6653281 13095489 662 ▇▇▇▇▇ FARGO
6654073 13095568 662 ▇▇▇▇▇ FARGO
6655302 13095691 663 ▇▇▇▇▇ FARGO
6669923 13116186 691 ▇▇▇▇▇ FARGO
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6672422 13116440 5471 ▇▇▇▇▇ FARGO
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6658637 13123344 5471 ▇▇▇▇▇ FARGO
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6659908 13173953 695 ▇▇▇▇▇ FARGO
6660112 13173974 695 ▇▇▇▇▇ FARGO
6660179 13173980 695 ▇▇▇▇▇ FARGO
6660575 13174020 695 ▇▇▇▇▇ FARGO
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6661060 13174514 713 ▇▇▇▇▇ FARGO
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6681191 13174544 713 ▇▇▇▇▇ FARGO
6681639 13180525 751 ▇▇▇▇▇ FARGO
6682231 13180585 751 ▇▇▇▇▇ FARGO
6686018 13197643 759 ▇▇▇▇▇ FARGO
6686307 13197672 759 ▇▇▇▇▇ FARGO
6687446 13197786 757 ▇▇▇▇▇ FARGO
6687651 13197807 759 ▇▇▇▇▇ FARGO
6687693 13197811 5471 ▇▇▇▇▇ FARGO
6683205 13198000 762 ▇▇▇▇▇ FARGO
6683445 13198024 762 ▇▇▇▇▇ FARGO
6684443 13198124 762 ▇▇▇▇▇ FARGO
6690655 13204271 793 ▇▇▇▇▇ FARGO
6691083 13204314 794 ▇▇▇▇▇ FARGO
6692057 13204411 794 ▇▇▇▇▇ FARGO
6693246 13204530 791 ▇▇▇▇▇ FARGO
0 13207223 6558 ▇▇▇▇▇ FARGO
6710636 13208727 814 ▇▇▇▇▇ FARGO
6712160 13208880 816 ▇▇▇▇▇ FARGO
6714398 13222730 839 ▇▇▇▇▇ FARGO
0 13223351 6558 ▇▇▇▇▇ FARGO
6719884 13224465 821 ▇▇▇▇▇ FARGO
0 13279371 6915 ▇▇▇▇▇ FARGO
0 13283396 6915 ▇▇▇▇▇ FARGO
0 13283419 6915 ▇▇▇▇▇ FARGO
6663215 13283426 6915 ▇▇▇▇▇ FARGO
0 13283852 6915 ▇▇▇▇▇ FARGO
0 13283857 6915 ▇▇▇▇▇ FARGO
6663579 13284264 6915 ▇▇▇▇▇ FARGO
6664247 13286988 6915 ▇▇▇▇▇ FARGO
6664882 13286989 6915 ▇▇▇▇▇ FARGO
0 13288422 6915 ▇▇▇▇▇ FARGO
0 13288488 6915 ▇▇▇▇▇ FARGO
0 13290412 6915 ▇▇▇▇▇ FARGO
0 13290415 6915 ▇▇▇▇▇ FARGO
0 13294140 6915 ▇▇▇▇▇ FARGO
6766240 13294216 6915 ▇▇▇▇▇ FARGO
6766745 13294271 6915 ▇▇▇▇▇ FARGO
0 13294632 6915 ▇▇▇▇▇ FARGO
6770895 13294654 6915 ▇▇▇▇▇ FARGO
6771075 13294672 6915 ▇▇▇▇▇ FARGO
6771174 13294682 6915 ▇▇▇▇▇ FARGO
0 13295011 6915 ▇▇▇▇▇ FARGO
0 13295044 6915 ▇▇▇▇▇ FARGO
0 13295046 6915 ▇▇▇▇▇ FARGO
6771505 13295551 6915 ▇▇▇▇▇ FARGO
6771844 13295585 6915 ▇▇▇▇▇ FARGO
0 13295814 6915 ▇▇▇▇▇ FARGO
0 13295817 6915 ▇▇▇▇▇ FARGO
6767073 13295973 6915 ▇▇▇▇▇ FARGO
6767396 13296008 6915 ▇▇▇▇▇ FARGO
6768030 13296072 6915 ▇▇▇▇▇ FARGO
6768360 13296105 6915 ▇▇▇▇▇ FARGO
6768758 13296146 6915 ▇▇▇▇▇ FARGO
6768857 13296156 6915 ▇▇▇▇▇ FARGO
6769459 13296217 6915 ▇▇▇▇▇ FARGO
6770036 13296280 6915 ▇▇▇▇▇ FARGO
6770044 13296281 6915 ▇▇▇▇▇ FARGO
0 13296465 6915 ▇▇▇▇▇ FARGO
0 13296468 6915 ▇▇▇▇▇ FARGO
0 13296475 6915 ▇▇▇▇▇ FARGO
0 13296481 6915 ▇▇▇▇▇ FARGO
0 13297913 6915 ▇▇▇▇▇ FARGO
0 13297949 6915 ▇▇▇▇▇ FARGO
6772776 13298213 6915 ▇▇▇▇▇ FARGO
0 13298282 6915 ▇▇▇▇▇ FARGO
0 13303043 6915 ▇▇▇▇▇ FARGO
0 13303048 6915 ▇▇▇▇▇ FARGO
6773659 13303057 6915 ▇▇▇▇▇ FARGO
6773691 13303061 6915 ▇▇▇▇▇ FARGO
6773998 13303855 6915 ▇▇▇▇▇ FARGO
6774053 13303861 6915 ▇▇▇▇▇ FARGO
6774079 13303864 6915 ▇▇▇▇▇ FARGO
6774236 13303882 6915 ▇▇▇▇▇ FARGO
6774426 13303901 6915 ▇▇▇▇▇ FARGO
6775258 13303985 6915 ▇▇▇▇▇ FARGO
6775506 13304010 6915 ▇▇▇▇▇ FARGO
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14002836 15757434 6744 ▇▇▇▇▇ FARGO
14002844 15757435 6744 ▇▇▇▇▇ FARGO
14002851 15757438 6744 ▇▇▇▇▇ FARGO
14002869 15757439 6744 ▇▇▇▇▇ FARGO
14002877 15757440 6744 ▇▇▇▇▇ FARGO
14002885 15757441 6744 ▇▇▇▇▇ FARGO
14002893 15757442 6744 ▇▇▇▇▇ FARGO
14002901 15757443 6744 ▇▇▇▇▇ FARGO
14002919 15757444 6744 ▇▇▇▇▇ FARGO
14002935 15757446 6744 ▇▇▇▇▇ FARGO
14002943 15757447 6744 ▇▇▇▇▇ FARGO
14002950 15757448 6744 ▇▇▇▇▇ FARGO
14002976 15757451 6744 ▇▇▇▇▇ FARGO
14002992 15757453 6744 ▇▇▇▇▇ FARGO
14003008 15757454 6744 ▇▇▇▇▇ FARGO
14003024 15757456 6744 ▇▇▇▇▇ FARGO
14003032 15757457 6744 ▇▇▇▇▇ FARGO
14003057 15757459 6744 ▇▇▇▇▇ FARGO
14003065 15757460 6744 ▇▇▇▇▇ FARGO
14003073 15757461 6744 ▇▇▇▇▇ FARGO
14003081 15757462 6744 ▇▇▇▇▇ FARGO
14003099 15757463 6744 ▇▇▇▇▇ FARGO
14003107 15757464 6744 ▇▇▇▇▇ FARGO
14003115 15757465 6744 ▇▇▇▇▇ FARGO
14003123 15757466 6744 ▇▇▇▇▇ FARGO
14003131 15757467 6744 ▇▇▇▇▇ FARGO
14003149 15757468 6744 ▇▇▇▇▇ FARGO
14003156 15757469 6744 ▇▇▇▇▇ FARGO
14003164 15757470 6744 ▇▇▇▇▇ FARGO
14003172 15757471 6744 ▇▇▇▇▇ FARGO
14003180 15757472 6744 ▇▇▇▇▇ FARGO
14003198 15757473 6744 ▇▇▇▇▇ FARGO
14003206 15757474 6744 ▇▇▇▇▇ FARGO
14003222 15757476 6744 ▇▇▇▇▇ FARGO
14003230 15757477 6744 ▇▇▇▇▇ FARGO
14003248 15757478 6744 ▇▇▇▇▇ FARGO
14003263 15757480 6744 ▇▇▇▇▇ FARGO
14003271 15757481 6744 ▇▇▇▇▇ FARGO
14003305 15757484 6744 ▇▇▇▇▇ FARGO
14003321 15757486 6744 ▇▇▇▇▇ FARGO
14003339 15757487 6744 ▇▇▇▇▇ FARGO
14003347 15757488 6744 ▇▇▇▇▇ FARGO
14003370 15757491 6744 ▇▇▇▇▇ FARGO
14003388 15757492 6744 ▇▇▇▇▇ FARGO
14003396 15757493 6744 ▇▇▇▇▇ FARGO
14003404 15757494 6744 ▇▇▇▇▇ FARGO
14003420 15757497 6744 ▇▇▇▇▇ FARGO
14003446 15757499 6744 ▇▇▇▇▇ FARGO
14003453 15757500 6744 ▇▇▇▇▇ FARGO
14003461 15757501 6744 ▇▇▇▇▇ FARGO
14003479 15757502 6744 ▇▇▇▇▇ FARGO
14003495 15757504 6744 ▇▇▇▇▇ FARGO
14003511 15757506 6744 ▇▇▇▇▇ FARGO
14003529 15757507 6744 ▇▇▇▇▇ FARGO
14003537 15757508 6744 ▇▇▇▇▇ FARGO
14003545 15757509 6744 ▇▇▇▇▇ FARGO
14003552 15757510 6744 ▇▇▇▇▇ FARGO
14003560 15757511 6744 ▇▇▇▇▇ FARGO
14003578 15757512 6744 ▇▇▇▇▇ FARGO
14003586 15757513 6744 ▇▇▇▇▇ FARGO
14003602 15757516 6744 ▇▇▇▇▇ FARGO
14003628 15757518 6744 ▇▇▇▇▇ FARGO
14003651 15757521 6744 ▇▇▇▇▇ FARGO
14003685 15757524 6744 ▇▇▇▇▇ FARGO
14003693 15757525 6744 ▇▇▇▇▇ FARGO
14003701 15757526 6744 ▇▇▇▇▇ FARGO
14003727 15757528 6744 ▇▇▇▇▇ FARGO
14003750 15757531 6744 ▇▇▇▇▇ FARGO
14003768 15757532 6744 ▇▇▇▇▇ FARGO
14003792 15757535 6744 ▇▇▇▇▇ FARGO
14003800 15757536 6744 ▇▇▇▇▇ FARGO
14003826 15757538 6744 ▇▇▇▇▇ FARGO
14003834 15757540 6744 ▇▇▇▇▇ FARGO
14003859 15757542 6744 ▇▇▇▇▇ FARGO
14003883 15757545 6744 ▇▇▇▇▇ FARGO
14003891 15757546 6744 ▇▇▇▇▇ FARGO
14003909 15757547 6744 ▇▇▇▇▇ FARGO
14003941 15757551 6744 ▇▇▇▇▇ FARGO
14003966 15757553 6744 ▇▇▇▇▇ FARGO
14003974 15757554 6744 ▇▇▇▇▇ FARGO
14003982 15757555 6744 ▇▇▇▇▇ FARGO
14004022 15757559 6744 ▇▇▇▇▇ FARGO
14004055 15757562 6744 ▇▇▇▇▇ FARGO
14004063 15757563 6744 ▇▇▇▇▇ FARGO
14004071 15757564 6744 ▇▇▇▇▇ FARGO
14004089 15757565 6744 ▇▇▇▇▇ FARGO
14004097 15757566 6744 ▇▇▇▇▇ FARGO
14004105 15757567 6744 ▇▇▇▇▇ FARGO
14004113 15757568 6744 ▇▇▇▇▇ FARGO
14004121 15757569 6744 ▇▇▇▇▇ FARGO
14004139 15757570 6744 ▇▇▇▇▇ FARGO
14004147 15757571 6744 ▇▇▇▇▇ FARGO
14004154 15757572 6744 ▇▇▇▇▇ FARGO
14004170 15757574 6744 ▇▇▇▇▇ FARGO
14004188 15757575 6744 ▇▇▇▇▇ FARGO
14004196 15757576 6744 ▇▇▇▇▇ FARGO
14004204 15757577 6744 ▇▇▇▇▇ FARGO
14004212 15757578 6744 WELLS FARGO
14004238 15757580 6744 WELLS FARGO
14004246 15757581 6744 WELLS FARGO
14004253 15757582 6744 WELLS FARGO
14004279 15757584 6744 WELLS FARGO
14004287 15757585 6744 WELLS FARGO
14004295 15757586 6744 WELLS FARGO
14004329 15757589 6744 WELLS FARGO
14004337 15757590 6744 WELLS FARGO
14004345 15757591 6744 WELLS FARGO
14004378 15757594 6744 WELLS FARGO
14004386 15757596 6744 WELLS FARGO
14004402 15757598 6744 WELLS FARGO
14004436 15757601 6744 WELLS FARGO
14004477 15757606 6744 WELLS FARGO
14004501 15757609 6744 WELLS FARGO
14004527 15757611 6744 WELLS FARGO
14004535 15757612 6744 WELLS FARGO
14004568 15757615 6744 WELLS FARGO
14004576 15757616 6744 WELLS FARGO
14004584 15757617 6744 WELLS FARGO
14004600 15757619 6744 WELLS FARGO
14004618 15757620 6744 WELLS FARGO
14004659 15757625 6744 WELLS FARGO
14004667 15757626 6744 WELLS FARGO
14004675 15757627 6744 WELLS FARGO
14004683 15757628 6744 WELLS FARGO
14004691 15757629 6744 WELLS FARGO
14004709 15757630 6744 WELLS FARGO
14004717 15757631 6744 WELLS FARGO
14004741 15757634 6744 WELLS FARGO
14004758 15757635 6744 WELLS FARGO
14004766 15757636 6744 WELLS FARGO
14004774 15757637 6744 WELLS FARGO
14004782 15757638 6744 WELLS FARGO
14004816 15757641 6744 WELLS FARGO
14004824 15757642 6744 WELLS FARGO
14004840 15757644 6744 WELLS FARGO
14004873 15757647 6744 WELLS FARGO
14004881 15757648 6744 WELLS FARGO
14004899 15757649 6744 WELLS FARGO
14004915 15757651 6744 WELLS FARGO
14004931 15757653 6744 WELLS FARGO
14004949 15757654 6744 WELLS FARGO
14004964 15757656 6744 WELLS FARGO
14004972 15757657 6744 WELLS FARGO
14004980 15757658 6744 WELLS FARGO
14004998 15757660 6744 WELLS FARGO
14005011 15757662 6744 WELLS FARGO
14005037 15757665 6744 WELLS FARGO
14005045 15757666 6744 WELLS FARGO
14005052 15757667 6744 WELLS FARGO
14005060 15757668 6744 WELLS FARGO
14005078 15757669 6744 WELLS FARGO
14005102 15757672 6744 WELLS FARGO
14005110 15757673 6744 WELLS FARGO
14005144 15757677 6744 WELLS FARGO
14005151 15757678 6744 WELLS FARGO
14005177 15757681 6744 WELLS FARGO
14005185 15757682 6744 WELLS FARGO
14005193 15757683 6744 WELLS FARGO
14005201 15757684 6744 WELLS FARGO
14005219 15757687 6744 WELLS FARGO
14005235 15757689 6744 WELLS FARGO
14005243 15757690 6744 WELLS FARGO
14005250 15757691 6744 WELLS FARGO
14005268 15757692 6744 WELLS FARGO
14005276 15757693 6744 WELLS FARGO
14005292 15757695 6744 WELLS FARGO
14005300 15757696 6744 WELLS FARGO
14005318 15757697 6744 WELLS FARGO
14005342 15757700 6744 WELLS FARGO
14005367 15757702 6744 WELLS FARGO
14005375 15757703 6744 WELLS FARGO
14005383 15757704 6744 WELLS FARGO
14005409 15757706 6744 WELLS FARGO
14005417 15757707 6744 WELLS FARGO
14005433 15757709 6744 WELLS FARGO
14005441 15757710 6744 WELLS FARGO
14005466 15757712 6744 WELLS FARGO
14005482 15757714 6744 WELLS FARGO
14005490 15757715 6744 WELLS FARGO
14005516 15757717 6744 WELLS FARGO
14005532 15757719 6744 WELLS FARGO
14005540 15757720 6744 WELLS FARGO
14005557 15757721 6744 WELLS FARGO
14005565 15757722 6744 WELLS FARGO
14005573 15757723 6744 WELLS FARGO
14005581 15757725 6744 WELLS FARGO
14005599 15757726 6744 WELLS FARGO
14005607 15757727 6744 WELLS FARGO
14005631 15757730 6744 WELLS FARGO
14005649 15757731 6744 WELLS FARGO
14005656 15757732 6744 WELLS FARGO
14005664 15757733 6744 WELLS FARGO
14005672 15757734 6744 WELLS FARGO
14005706 15757738 6744 WELLS FARGO
14005714 15757739 6744 WELLS FARGO
14005722 15757740 6744 WELLS FARGO
14005748 15757742 6744 WELLS FARGO
14005755 15757743 6744 WELLS FARGO
14005763 15757744 6744 WELLS FARGO
14005771 15757745 6744 WELLS FARGO
14005789 15757746 6744 WELLS FARGO
14005797 15757747 6744 WELLS FARGO
14005805 15757748 6744 WELLS FARGO
14005839 15757751 6744 WELLS FARGO
14005847 15757752 6744 WELLS FARGO
14005854 15757753 6744 WELLS FARGO
14005862 15757754 6744 WELLS FARGO
14005870 15757755 6744 WELLS FARGO
14005888 15757756 6744 WELLS FARGO
14005896 15757757 6744 WELLS FARGO
14005904 15757758 6744 WELLS FARGO
14005912 15757759 6744 WELLS FARGO
14005920 15757760 6744 WELLS FARGO
14005938 15757761 6744 WELLS FARGO
14005946 15757762 6744 WELLS FARGO
14005979 15757765 6744 WELLS FARGO
14005987 15757766 6744 WELLS FARGO
14005995 15757767 6744 WELLS FARGO
14006027 15757770 6744 WELLS FARGO
14006035 15757771 6744 WELLS FARGO
14006043 15757773 6744 WELLS FARGO
14006050 15757774 6744 WELLS FARGO
14006068 15757776 6744 WELLS FARGO
14006092 15757779 6744 WELLS FARGO
14006118 15757782 6744 WELLS FARGO
14006126 15757783 6744 WELLS FARGO
14006142 15757785 6744 WELLS FARGO
14006167 15757787 6744 WELLS FARGO
14006175 15757788 6744 WELLS FARGO
14006191 15757790 6744 WELLS FARGO
14006209 15757791 6744 WELLS FARGO
0 15802084 7002
0 15802090 7002
0 15802091 7002
0 15802094 7002
0 15802096 7002
0 15802097 7002
0 15802098 7002
0 15802100 7002
0 15802102 7002
0 15802103 7002
0 15802104 7002
0 15802108 7002
0 15802109 7002
0 15802110 7002
0 15802117 7002
0 15802119 7002
0 15802120 7002
0 15802121 7002
0 15802123 7002
0 15802125 7002
0 15802127 7002
0 15802131 7002
0 15802134 7002
0 15802136 7002
0 15806085 7002
0 15806086 7002
0 15806092 7002
0 15806095 7002
0 15806096 7002
0 15806097 7002
0 15806099 7002
0 15806100 7002
0 15806102 7002
0 15806103 7002
0 15806104 7002
0 15806105 7002
0 15806108 7002
0 15833035 7002
0 15833036 7002
0 15833037 7002
0 15833038 7002
0 15833039 7002
0 15833040 7002
0 15833041 7002
0 15833044 7002
0 15833046 7002
0 15833047 7002
0 15833048 7002
0 15833050 7002
0 15833051 7002
0 15833057 7002
0 15833058 7002
0 15833059 7002
GROUP PORTFOLIO ADP_NO DEAL_ID
----- --------- ------ -------
GROUP I AQUL 5V31101 BSABS 2001-AC1
GROUP I AQUL 5V31101 BSABS 2001-AC1
GROUP I DQUL 5V30900 BSABS 2001-AC1
GROUP I AQUL 5V31101 BSABS 2001-AC1
GROUP I AQUL 5V31101 BSABS 2001-AC1
GROUP I AQUL 5V31101 BSABS 2001-AC1
GROUP I DQUL 5V30900 BSABS 2001-AC1
GROUP I AQUL 5V31101 BSABS 2001-AC1
GROUP I AQUL 5V31101 BSABS 2001-AC1
GROUP I AQUL 5V31101 BSABS 2001-AC1
GROUP I AQUL 5V31101 BSABS 2001-AC1
GROUP I AQUL 5V31101 BSABS 2001-AC1
GROUP I AQUL 5V31101 BSABS 2001-AC1
GROUP I AQUL 5V31101 BSABS 2001-AC1
GROUP I AQUL 5V31101 BSABS 2001-AC1
GROUP I AQUL 5V31101 BSABS 2001-AC1
GROUP I AQUL 5V31101 BSABS 2001-AC1
GROUP I AQUL 5V31101 BSABS 2001-AC1
GROUP I AQUL 5V31101 BSABS 2001-AC1
GROUP I AQUL 5V31101 BSABS 2001-AC1
GROUP I DQUL 5V30900 BSABS 2001-AC1
GROUP I AQUL 5V31101 BSABS 2001-AC1
GROUP I AQUL 5V31101 BSABS 2001-AC1
GROUP I AQUL 5V31101 BSABS 2001-AC1
GROUP I AQUL 5V31101 BSABS 2001-AC1
GROUP I DQUL 5V30900 BSABS 2001-AC1
GROUP I AQUL 5V31101 BSABS 2001-AC1
GROUP I AQUL 5V31101 BSABS 2001-AC1
GROUP I AQUL 5V31101 BSABS 2001-AC1
GROUP I AQUL 5V31101 BSABS 2001-AC1
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I DQUL 5V30900 BSABS 2001-AC1
GROUP I DQUL 5V30900 BSABS 2001-AC1
GROUP I AQUL 5V31101 BSABS 2001-AC1
GROUP I AQUL 5V31101 BSABS 2001-AC1
GROUP I AQUL 5V31101 BSABS 2001-AC1
GROUP I AQUL 5V31101 BSABS 2001-AC1
GROUP I AQUL 5V31101 BSABS 2001-AC1
GROUP I AQUL 5V31101 BSABS 2001-AC1
GROUP I AQUL 5V31101 BSABS 2001-AC1
GROUP I AQUL 5V31101 BSABS 2001-AC1
GROUP I AQUL 5V31101 BSABS 2001-AC1
GROUP I AQUL 5V31101 BSABS 2001-AC1
GROUP I AQUL 5V31101 BSABS 2001-AC1
GROUP I AQUL 5V31101 BSABS 2001-AC1
GROUP I AQUL 5V31101 BSABS 2001-AC1
GROUP I AQUL 5V31101 BSABS 2001-AC1
GROUP I AQUL 5V31101 BSABS 2001-AC1
GROUP I AQUL 5V31101 BSABS 2001-AC1
GROUP I AQUL 5V31101 BSABS 2001-AC1
GROUP I AQUL 5V31101 BSABS 2001-AC1
GROUP I AQUL 5V31101 BSABS 2001-AC1
GROUP I AQUL 5V31101 BSABS 2001-AC1
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5J65534 BSABS 2001-AC2
GROUP I AQUL 5V10517 BSABS 2002-AC2
GROUP I AQUL 5V10517 BSABS 2002-AC2
GROUP I AQUL 5V10517 BSABS 2002-AC2
GROUP I AQUL 5V74496 BSABS 2002-AC3
GROUP I AQUL 5V74496 BSABS 2002-AC3
GROUP I AQUL 5V74496 BSABS 2002-AC3
GROUP I AQUL 5V74496 BSABS 2002-AC3
GROUP I AQUL 5V74496 BSABS 2002-AC3
GROUP I AQUL 5V74496 BSABS 2002-AC3
GROUP I AQUL 5V74496 BSABS 2002-AC3
GROUP I AQUL 5V74496 BSABS 2002-AC3
GROUP I AQUL 5V74496 BSABS 2002-AC3
GROUP I AQUL 5V74496 BSABS 2002-AC3
GROUP I AQUL 5V74496 BSABS 2002-AC3
GROUP I AQUL 5V74496 BSABS 2002-AC3
GROUP I AQUL 5V74496 BSABS 2002-AC3
GROUP I AQUL 5V74496 BSABS 2002-AC3
GROUP I AQUL 5V74496 BSABS 2002-AC3
GROUP I AQUL 5V74496 BSABS 2002-AC3
GROUP I AQUL 5V74496 BSABS 2002-AC3
GROUP I AQUL 5V74496 BSABS 2002-AC3
GROUP I AQUL 5V74496 BSABS 2002-AC3
GROUP I AQUL 5V74496 BSABS 2002-AC3
GROUP I AQUL 5V74496 BSABS 2002-AC3
GROUP I AQUL 5V74496 BSABS 2002-AC3
GROUP I AQUL 5V74496 BSABS 2002-AC3
GROUP I DQUL 5V74495 BSABS 2002-AC3
GROUP I AQUL 5V10517 BSABS 2002-AC2
GROUP I AQUL 5V74496 BSABS 2002-AC3
GROUP I AQUL 5V74496 BSABS 2002-AC3
GROUP I AQUL 5V10517 BSABS 2002-AC2
GROUP I AQUL 5V74496 BSABS 2002-AC3
GROUP I AQUL 5V74496 BSABS 2002-AC3
GROUP I AQUL 5V74496 BSABS 2002-AC3
GROUP I AQUL 5V74496 BSABS 2002-AC3
GROUP I AQUL 5V74496 BSABS 2002-AC3
GROUP I AQUL 5V74496 BSABS 2002-AC3
GROUP I AQUL 5V74496 BSABS 2002-AC3
GROUP I AQUL 5V10517 BSABS 2002-AC2
GROUP I AQUL 5V74496 BSABS 2002-AC3
GROUP I AQUL 5V74496 BSABS 2002-AC3
GROUP I AQUL 5V10517 BSABS 2002-AC2
GROUP I AQUL 5V74496 BSABS 2002-AC3
GROUP I AQUL 5V74496 BSABS 2002-AC3
GROUP I AQUL 5V74496 BSABS 2002-AC3
GROUP I AQUL 5V74496 BSABS 2002-AC3
GROUP I AQUL 5V74496 BSABS 2002-AC3
GROUP I AQUL 5V74496 BSABS 2002-AC3
GROUP I AQUL 5V74496 BSABS 2002-AC3
GROUP I AQUL 5V74496 BSABS 2002-AC3
GROUP I AQUL 5V74496 BSABS 2002-AC3
GROUP I AQUL 5V74496 BSABS 2002-AC3
GROUP I AQUL 5V74496 BSABS 2002-AC3
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GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
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GROUP II JUMB 5V90929 CM0503
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GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
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GROUP II JUMB 5V90929 CM0503
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GROUP II JUMB 5V90929 CM0503
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GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
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GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
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GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
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GROUP II JUMB 5V90929 CM0503
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GROUP II JUMB 5V90929 CM0503
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GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V90929 CM0503
GROUP II JUMB 5V96455 CM0504
GROUP II JUMB 5V96455 CM0504
GROUP II JUMB 5V96455 CM0504
GROUP II JUMB 5V96455 CM0504
GROUP II JUMB 5V96455 CM0504
GROUP II JUMB 5V96455 CM0504
GROUP II JUMB 5V96455 CM0504
GROUP II JUMB 5V96455 CM0504
GROUP II JUMB 5V96455 CM0504
GROUP II JUMB 5V96455 CM0504
GROUP II JUMB 5V96455 CM0504
GROUP II JUMB 5V96455 CM0504
GROUP II JUMB 5V96455 CM0504
GROUP II JUMB 5V96455 CM0504
GROUP II JUMB 5V96455 CM0504
GROUP II JUMB 5V96455 CM0504
GROUP II JUMB 5V96455 CM0504
GROUP II JUMB 5V96455 CM0504
GROUP II JUMB 5V96455 CM0504
GROUP II JUMB 5V96455 CM0504
GROUP II JUMB 5V96455 CM0504
GROUP II JUMB 5V96455 CM0504
GROUP II JUMB 5V96455 CM0504
GROUP II JUMB 5V96455 CM0504
GROUP II JUMB 5V96455 CM0504
GROUP II JUMB 5V96455 CM0504
GROUP II JUMB 5V96455 CM0504
GROUP II JUMB 5V96455 CM0504
GROUP II JUMB 5V96455 CM0504
GROUP II JUMB 5V96455 CM0504
GROUP II JUMB 5V96455 CM0504
GROUP II JUMB 5V96455 CM0504
GROUP II JUMB 5V96455 CM0504
GROUP II JUMB 5V96455 CM0504
GROUP II JUMB 5V96455 CM0504
GROUP II JUMB 5V96455 CM0504
GROUP II JUMB 5V96455 CM0504
GROUP II JUMB 5V96455 CM0504
GROUP II JUMB 5V96455 CM0504
GROUP II JUMB 5V96455 CM0504
GROUP II JUMB 5V96455 CM0504
GROUP II JUMB 5V96455 CM0504
GROUP II JUMB 5V96455 CM0504
GROUP II JUMB 5V96455 CM0504
GROUP II JUMB 5V96455 CM0504
GROUP II JUMB 5V96455 CM0504
GROUP II JUMB 5V96455 CM0504
GROUP II JUMB 5V96455 CM0504
GROUP II JUMB 5V96455 CM0504
GROUP II JUMB 5V96455 CM0504
GROUP II JUMB 5V96455 CM0504
GROUP II JUMB 5V96455 CM0504
GROUP II JUMB 5V96455 CM0504
SERVICER_NAME SOURCE AM_TYPE
------------- ------ -------
CITI MORTGAGE FIRST GUARANTY FIXED
CITI MORTGAGE FIRST GUARANTY FIXED
WELLS FARGO FIRST GUARANTY FIXED
CITI MORTGAGE FIRST GUARANTY FIXED
CITI MORTGAGE FIRST NEVADA FIXED
CITI MORTGAGE FIRST NEVADA FIXED
CITI MORTGAGE FIRST NEVADA FIXED
CITI MORTGAGE FIRST NEVADA FIXED
CITI MORTGAGE FIRST NEVADA FIXED
CITI MORTGAGE FIRST NEVADA FIXED
WELLS FARGO FIRST NEVADA FIXED
CITI MORTGAGE FIRST NEVADA FIXED
CITI MORTGAGE FIRST NEVADA FIXED
WELLS FARGO FIRST NEVADA FIXED
CITI MORTGAGE FIRST NEVADA FIXED
CITI MORTGAGE FIRST NEVADA FIXED
CITI MORTGAGE FIRST NEVADA FIXED
CITI MORTGAGE GREENPOINT FIXED
CITI MORTGAGE GREENPOINT FIXED
CITI MORTGAGE GREENPOINT FIXED
CITI MORTGAGE GREENPOINT FIXED
CITI MORTGAGE GREENPOINT FIXED
CITI MORTGAGE GREENPOINT FIXED
WELLS FARGO FIRST NEVADA FIXED
EMC MORTGAGE FIRST NEVADA FIXED
CITI MORTGAGE FIRST NEVADA FIXED
CITI MORTGAGE FIRST NEVADA FIXED
CITI MORTGAGE FIRST NEVADA FIXED
CITI MORTGAGE FIRST NEVADA FIXED
CITI MORTGAGE FIRST NEVADA FIXED
CITI MORTGAGE FIRST NEVADA FIXED
CITI MORTGAGE FIRST NEVADA FIXED
CITI MORTGAGE FIRST NEVADA FIXED
CITI MORTGAGE FIRST NEVADA FIXED
WELLS FARGO GREENPOINT FIXED
CITI MORTGAGE GREENPOINT FIXED
CITI MORTGAGE GREENPOINT FIXED
CITI MORTGAGE GREENPOINT FIXED
EMC MORTGAGE GREENPOINT FIXED
CITI MORTGAGE GREENPOINT FIXED
CITI MORTGAGE GREENPOINT FIXED
CITI MORTGAGE GREENPOINT FIXED
EMC MORTGAGE GREENPOINT FIXED
CITI MORTGAGE GREENPOINT FIXED
CITI MORTGAGE GREENPOINT FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
CITI MORTGAGE PMCC MORTGAGE FIXED
CITI MORTGAGE PMCC MORTGAGE FIXED
CITI MORTGAGE GREENPOINT FIXED
CITI MORTGAGE GREENPOINT FIXED
WELLS FARGO FIRST GUARANTY FIXED
WELLS FARGO FIRST GUARANTY FIXED
WELLS FARGO FIRST GUARANTY FIXED
CITI MORTGAGE FIRST NEVADA FIXED
CITI MORTGAGE FIRST NEVADA FIXED
CITI MORTGAGE FIRST NEVADA FIXED
CITI MORTGAGE FIRST NEVADA FIXED
CITI MORTGAGE FIRST NEVADA FIXED
CITI MORTGAGE FIRST NEVADA FIXED
CITI MORTGAGE FIRST NEVADA FIXED
CITI MORTGAGE FIRST NEVADA FIXED
CITI MORTGAGE FIRST NEVADA FIXED
CITI MORTGAGE FIRST NEVADA FIXED
CITI MORTGAGE FIRST NEVADA FIXED
EMC MORTGAGE FIRST NEVADA FIXED
EMC MORTGAGE FIRST NEVADA FIXED
CITI MORTGAGE FIRST NEVADA FIXED
CITI MORTGAGE GREENPOINT FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
CITI MORTGAGE GREENPOINT FIXED
CITI MORTGAGE GREENPOINT FIXED
CITI MORTGAGE GREENPOINT FIXED
CITI MORTGAGE GREENPOINT FIXED
EMC MORTGAGE GREENPOINT FIXED
EMC MORTGAGE GREENPOINT FIXED
CITI MORTGAGE GREENPOINT FIXED
CITI MORTGAGE GREENPOINT FIXED
WELLS FARGO GREENPOINT FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
EMC MORTGAGE GREENPOINT FIXED
EMC MORTGAGE GREENPOINT FIXED
EMC MORTGAGE GREENPOINT FIXED
WELLS FARGO IRWIN HOME EQUITY FIXED
WELLS FARGO IRWIN HOME EQUITY FIXED
WELLS FARGO IRWIN HOME EQUITY FIXED
WELLS FARGO IRWIN HOME EQUITY FIXED
WELLS FARGO IRWIN HOME EQUITY FIXED
WELLS FARGO IRWIN HOME EQUITY FIXED
WELLS FARGO IRWIN HOME EQUITY FIXED
WELLS FARGO IRWIN HOME EQUITY FIXED
WELLS FARGO IRWIN HOME EQUITY FIXED
WELLS FARGO IRWIN HOME EQUITY FIXED
WELLS FARGO IRWIN HOME EQUITY FIXED
WELLS FARGO IRWIN HOME EQUITY FIXED
WELLS FARGO IRWIN HOME EQUITY FIXED
WELLS FARGO IRWIN HOME EQUITY FIXED
WELLS FARGO IRWIN HOME EQUITY FIXED
WELLS FARGO IVY MORTGAGE FIXED
WELLS FARGO IVY MORTGAGE FIXED
WELLS FARGO IVY MORTGAGE FIXED
WELLS FARGO IVY MORTGAGE FIXED
WELLS FARGO IVY MORTGAGE FIXED
WELLS FARGO IVY MORTGAGE FIXED
WELLS FARGO FIRST GUARANTY FIXED
WELLS FARGO FIRST GUARANTY FIXED
WELLS FARGO FIRST GUARANTY FIXED
EMC MORTGAGE GREENPOINT FIXED
CENDANT CENDANT FIXED
WELLS FARGO FIRST GUARANTY FIXED
EMC MORTGAGE FIRST GUARANTY FIXED
WELLS FARGO FIRST GUARANTY FIXED
WELLS FARGO IVY MORTGAGE FIXED
WELLS FARGO IVY MORTGAGE FIXED
WELLS FARGO IVY MORTGAGE FIXED
WELLS FARGO IVY MORTGAGE FIXED
WELLS FARGO GREENPOINT FIXED
WELLS FARGO GREENPOINT FIXED
EMC MORTGAGE GREENPOINT FIXED
WELLS FARGO GREENPOINT FIXED
WELLS FARGO GREENPOINT FIXED
EMC MORTGAGE ALLIANCE BANCORP FIXED
WELLS FARGO GREENPOINT FIXED
WELLS FARGO GREENPOINT FIXED
WELLS FARGO FIRST NEVADA FIXED
WELLS FARGO COMMUNITY BANK FIXED
WELLS FARGO COMMUNITY BANK FIXED
WELLS FARGO COMMUNITY BANK FIXED
WELLS FARGO COMMUNITY BANK FIXED
WELLS FARGO COMMUNITY BANK FIXED
WELLS FARGO COMMUNITY BANK FIXED
WELLS FARGO COMMUNITY BANK FIXED
WELLS FARGO COMMUNITY BANK FIXED
WELLS FARGO ALLIANCE BANCORP FIXED
WELLS FARGO ALLIANCE BANCORP FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
WELLS FARGO GREENPOINT FIXED
WELLS FARGO GREENPOINT FIXED
WELLS FARGO GREENPOINT FIXED
WELLS FARGO GREENPOINT FIXED
WELLS FARGO GREENPOINT FIXED
WELLS FARGO GREENPOINT FIXED
WELLS FARGO GREENPOINT FIXED
WELLS FARGO WATERFIELD FIXED
WELLS FARGO GREENPOINT FIXED
WELLS FARGO GREENPOINT FIXED
NATIONAL CITY NATIONAL CITY FIXED
WELLS FARGO WATERFIELD FIXED
WELLS FARGO IVY MORTGAGE FIXED
WELLS FARGO WATERFIELD FIXED
WELLS FARGO WATERFIELD FIXED
WELLS FARGO WATERFIELD FIXED
WELLS FARGO US MORTGAGE FIXED
WELLS FARGO WATERFIELD FIXED
WELLS FARGO WATERFIELD FIXED
WELLS FARGO ENTRUST MORTGAGE FIXED
WELLS FARGO US MORTGAGE FIXED
WELLS FARGO FIRST AMERICAN MORT FIXED
WELLS FARGO WATERFIELD FIXED
WELLS FARGO WATERFIELD FIXED
WELLS FARGO WATERFIELD FIXED
WELLS FARGO WATERFIELD FIXED
WELLS FARGO WATERFIELD FIXED
WELLS FARGO SIERRA PACIFIC MORTGAGE FIXED
WELLS FARGO SIERRA PACIFIC MORTGAGE FIXED
WELLS FARGO WATERFIELD FIXED
WELLS FARGO FIRST HORIZON FIXED
WELLS FARGO FIRST HORIZON FIXED
WELLS FARGO FIRST HORIZON FIXED
WELLS FARGO WATERFIELD FIXED
WELLS FARGO WATERFIELD FIXED
WELLS FARGO WATERFIELD FIXED
WELLS FARGO MARKET STREET FIXED
WELLS FARGO MARKET STREET FIXED
WELLS FARGO WATERFIELD FIXED
WELLS FARGO WATERFIELD FIXED
WELLS FARGO IVY MORTGAGE FIXED
WELLS FARGO IVY MORTGAGE FIXED
WELLS FARGO IVY MORTGAGE FIXED
WELLS FARGO IVY MORTGAGE FIXED
WELLS FARGO IVY MORTGAGE FIXED
WELLS FARGO IVY MORTGAGE FIXED
WELLS FARGO IVY MORTGAGE FIXED
WELLS FARGO IVY MORTGAGE FIXED
WELLS FARGO IVY MORTGAGE FIXED
WELLS FARGO WATERFIELD FIXED
WELLS FARGO WATERFIELD FIXED
WELLS FARGO WATERFIELD FIXED
WELLS FARGO WATERFIELD FIXED
WELLS FARGO WATERFIELD FIXED
WELLS FARGO WATERFIELD FIXED
WELLS FARGO PMCC MORTGAGE FIXED
WELLS FARGO WATERFIELD FIXED
WELLS FARGO WATERFIELD FIXED
WELLS FARGO WATERFIELD FIXED
WELLS FARGO ALTERNA MORTGAGE FIXED
WELLS FARGO ALTERNA MORTGAGE FIXED
WELLS FARGO FIRST GUARANTY FIXED
WELLS FARGO FIRST GUARANTY FIXED
WELLS FARGO FIRST GUARANTY FIXED
WELLS FARGO FIRST GUARANTY FIXED
WELLS FARGO FIRST GUARANTY FIXED
WELLS FARGO FIRST GUARANTY FIXED
WELLS FARGO FIRST GUARANTY FIXED
WELLS FARGO FIRST GUARANTY FIXED
WELLS FARGO FIRST GUARANTY FIXED
WELLS FARGO FIRST GUARANTY FIXED
WELLS FARGO FIRST GUARANTY FIXED
WELLS FARGO WATERFIELD FIXED
WELLS FARGO WATERFIELD FIXED
WELLS FARGO WATERFIELD FIXED
WELLS FARGO WATERFIELD FIXED
WELLS FARGO WATERFIELD FIXED
WELLS FARGO WATERFIELD FIXED
WELLS FARGO GREENPOINT FIXED
WELLS FARGO GREENPOINT FIXED
WELLS FARGO GREENPOINT FIXED
WELLS FARGO GREENPOINT FIXED
WELLS FARGO GREENPOINT FIXED
WELLS FARGO GREENPOINT FIXED
WELLS FARGO GREENPOINT FIXED
WELLS FARGO GREENPOINT FIXED
WELLS FARGO GREENPOINT FIXED
WELLS FARGO WATERFIELD FIXED
WELLS FARGO WATERFIELD FIXED
WELLS FARGO US MORTGAGE FIXED
WELLS FARGO SIERRA PACIFIC MORTGAGE FIXED
WELLS FARGO SIERRA PACIFIC MORTGAGE FIXED
WELLS FARGO SIERRA PACIFIC MORTGAGE FIXED
WELLS FARGO WATERFIELD FIXED
WELLS FARGO COMMUNITY HOME FIXED
WELLS FARGO SUNTRUST MORTGAGE FIXED
WELLS FARGO WATERFIELD FIXED
WELLS FARGO WATERFIELD FIXED
WELLS FARGO WATERFIELD FIXED
WELLS FARGO WATERFIELD FIXED
WELLS FARGO WATERFIELD FIXED
WELLS FARGO ALLIANCE MORTGAGE FIXED
WELLS FARGO GREENPOINT FIXED
WELLS FARGO GREENPOINT FIXED
WELLS FARGO GREENPOINT FIXED
WELLS FARGO GREENPOINT FIXED
WELLS FARGO GREENPOINT FIXED
WELLS FARGO GREENPOINT FIXED
WELLS FARGO GREENPOINT FIXED
WELLS FARGO GREENPOINT FIXED
WELLS FARGO GREENPOINT FIXED
WELLS FARGO GREENPOINT FIXED
WELLS FARGO GREENPOINT FIXED
WELLS FARGO GREENPOINT FIXED
WELLS FARGO MONUMENT MORTGAGE FIXED
WELLS FARGO WATERFIELD FIXED
WELLS FARGO WATERFIELD FIXED
WELLS FARGO WATERFIELD FIXED
WELLS FARGO WATERFIELD FIXED
WELLS FARGO SUNTRUST MORTGAGE FIXED
WELLS FARGO STERLING CAPITAL FIXED
WELLS FARGO STERLING CAPITAL FIXED
WELLS FARGO STERLING CAPITAL FIXED
WELLS FARGO STERLING CAPITAL FIXED
WELLS FARGO STERLING CAPITAL FIXED
WELLS FARGO STERLING CAPITAL FIXED
WELLS FARGO STERLING CAPITAL FIXED
WELLS FARGO STERLING CAPITAL FIXED
WELLS FARGO STERLING CAPITAL FIXED
WELLS FARGO STERLING CAPITAL FIXED
WELLS FARGO STERLING CAPITAL FIXED
WELLS FARGO STERLING CAPITAL FIXED
WELLS FARGO STERLING CAPITAL FIXED
WELLS FARGO WATERFIELD FIXED
WELLS FARGO WATERFIELD FIXED
WELLS FARGO WATERFIELD FIXED
WELLS FARGO FIRST GUARANTY FIXED
WELLS FARGO FIRST GUARANTY FIXED
WELLS FARGO FIRST GUARANTY FIXED
WELLS FARGO FIRST GUARANTY FIXED
WELLS FARGO FIRST GUARANTY FIXED
WELLS FARGO FIRST GUARANTY FIXED
WELLS FARGO FIRST GUARANTY FIXED
WELLS FARGO FIRST GUARANTY FIXED
WELLS FARGO FIRST GUARANTY FIXED
WELLS FARGO FIRST GUARANTY FIXED
WELLS FARGO FIRST GUARANTY FIXED
WELLS FARGO FIRST GUARANTY FIXED
WELLS FARGO FIRST NEVADA FIXED
WELLS FARGO FIRST NEVADA FIXED
WELLS FARGO FIRST NEVADA FIXED
WELLS FARGO FIRST NEVADA FIXED
WELLS FARGO FIRST NEVADA FIXED
WELLS FARGO FIRST NEVADA FIXED
WELLS FARGO FIRST NEVADA FIXED
WELLS FARGO FIRST NEVADA FIXED
WELLS FARGO FIRST NEVADA FIXED
WELLS FARGO FIRST NEVADA FIXED
WELLS FARGO FIRST NEVADA FIXED
WELLS FARGO FIRST NEVADA FIXED
WELLS FARGO FIRST NEVADA FIXED
WELLS FARGO FIRST NEVADA FIXED
WELLS FARGO FIRST NEVADA FIXED
WELLS FARGO FIRST NEVADA FIXED
WELLS FARGO FIRST NEVADA FIXED
WELLS FARGO FIRST NEVADA FIXED
WELLS FARGO FIRST NEVADA FIXED
WELLS FARGO FIRST NEVADA FIXED
WELLS FARGO FIRST NEVADA FIXED
WELLS FARGO FIRST NEVADA FIXED
WELLS FARGO FIRST NEVADA FIXED
WELLS FARGO FIRST NEVADA FIXED
WELLS FARGO FIRST NEVADA FIXED
WELLS FARGO FIRST NEVADA FIXED
WELLS FARGO FIRST NEVADA FIXED
WELLS FARGO FIRST NEVADA FIXED
WELLS FARGO FIRST NEVADA FIXED
WELLS FARGO FIRST NEVADA FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
NATIONAL CITY NATIONAL CITY FIXED
CITI MORTGAGE CITIMORTGAGE FIXED
GMAC GMAC FIXED
CENDANT CENDANT FIXED
WAMU WAMU FIXED
CENDANT CENDANT FIXED
CENDANT CENDANT FIXED
NATIONAL CITY NATIONAL CITY FIXED
CENDANT CENDANT FIXED
CENDANT CENDANT FIXED
CENDANT CENDANT FIXED
CENDANT CENDANT FIXED
CENDANT CENDANT FIXED
CENDANT CENDANT FIXED
WAMU WAMU FIXED
WAMU WAMU FIXED
CENDANT CENDANT FIXED
CENDANT CENDANT FIXED
CENDANT CENDANT FIXED
WAMU WAMU FIXED
WAMU WAMU FIXED
CENDANT CENDANT FIXED
CENDANT CENDANT FIXED
WAMU WAMU FIXED
WAMU WAMU FIXED
WAMU WAMU FIXED
CENDANT CENDANT FIXED
WAMU WAMU FIXED
WAMU WAMU FIXED
WAMU WAMU FIXED
CENDANT CENDANT FIXED
WAMU WAMU FIXED
WAMU WAMU FIXED
WAMU WAMU FIXED
WAMU WAMU FIXED
NATIONAL CITY NATIONAL CITY FIXED
WAMU WAMU FIXED
BANK ONE BANKONE FIXED
FIFTH THIRD FIFTH THIRD FIXED
NAVY FEDERAL NAVYFED FIXED
GREENPOINT TRUST CO BANK OF NJ FIXED
FIFTH THIRD FIFTH THIRD FIXED
FIFTH THIRD FIFTH THIRD FIXED
GREENPOINT TRUST CO BANK OF NJ FIXED
GREENPOINT TRUST CO BANK OF NJ FIXED
FIFTH THIRD FIFTH THIRD FIXED
NAVY FEDERAL NAVYFED FIXED
GREENPOINT TRUST CO BANK OF NJ FIXED
FIFTH THIRD FIFTH THIRD FIXED
SUNTRUST SUNTRUST MORTGAGE FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC GMAC FIXED
GMAC GMAC FIXED
GMAC GMAC FIXED
CENDANT CENDANT FIXED
CENDANT CENDANT FIXED
CENDANT CENDANT FIXED
CENDANT CENDANT FIXED
CENDANT CENDANT FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
GMAC IMPAC FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
EMC MORTGAGE COMMERCE BANK FIXED
NOTE_DATE1 FIRST_PAY_DATE STATED_MAT
---------- -------------- ----------
20010419 20010601 20310501
20010417 20010601 20310501
20010518 20010701 20270801
20010313 20010501 20310401
20010430 20010601 20310501
20010427 20010601 20310501
20010424 20010601 20310501
20010426 20010601 20310501
20010430 20010601 20310501
20010501 20010701 20310601
20010428 20010601 20310501
20010507 20010701 20310601
20010427 20010601 20310501
20010525 20040701 20340601
20010521 20010701 20310601
20010517 20010701 20310601
20010531 20010701 20310601
20010522 20010701 20310601
20010517 20010701 20310601
20010425 20010601 20310501
20010515 20010701 20310601
20010521 20010701 20310601
20010516 20010701 20310601
20010627 20050401 20310701
20010628 20010801 20310701
20010625 20010801 20310701
20010622 20010801 20310701
20010625 20010801 20310701
20010402 20010701 20310601
20010628 20010801 20310701
20010726 20010901 20310801
20010730 20010901 20310801
20010726 20010901 20310801
20010709 20010901 20310801
20010727 20010901 20310801
20010716 20010901 20310801
20010726 20010901 20310801
20010720 20010901 20310801
20010725 20010901 20310801
20010518 20010701 20310601
20010416 20010601 20310501
20010730 20010901 20310801
20010725 20010901 20310801
20010524 20010701 20310601
20010608 20010801 20310701
20010701 20010701 20310601
20010701 20010701 20310601
20010701 20010701 20310601
20010701 20010701 20310601
20010701 20010701 20310601
20010601 20010601 20310501
20010701 20010701 20310601
20010701 20010701 20310601
20010701 20010701 20310601
20010701 20010701 20310601
20010701 20010701 20310601
20010701 20010701 20310601
20010701 20010701 20310601
20010701 20010701 20310601
20010701 20010701 20310601
20010801 20010801 20310701
20010701 20010701 20310601
20010701 20010701 20310601
20010701 20010701 20310601
20010701 20010701 20310601
20011101 20011101 20161001
20011001 20011001 20310901
20010806 20011001 20310901
20010731 20010901 20310801
20010821 20011001 20310901
20010802 20010901 20310801
20010828 20011001 20310901
20010905 20011001 20310901
20010827 20011001 20310901
20010705 20010901 20310801
20010828 20011001 20310901
20010831 20011001 20310901
20010830 20011001 20310901
20010727 20010901 20310801
20010831 20011001 20310901
20010725 20010901 20310801
20010725 20010901 20310801
20010830 20011001 20310901
20010824 20011001 20310901
20010827 20011001 20310901
20010823 20011001 20310901
20010731 20010901 20310801
20010601 20010601 20310501
20010801 20010801 20310701
20010801 20010801 20310701
20010801 20010801 20310701
20010901 20010901 20310801
20010601 20010601 20310501
20010801 20010801 20310701
20010801 20010801 20310701
20010101 20010101 20301201
20010831 20011001 20310901
20010803 20010901 20310801
20010803 20010901 20310801
20010831 20011001 20160901
20010905 20011101 20311001
20010713 20010901 20310801
20010730 20010901 20310801
20010905 20011101 20311001
20010829 20011001 20160901
20011001 20011001 20310901
20011001 20011001 20310901
20011001 20011001 20310901
20011001 20011001 20310901
20011001 20011001 20310901
20011001 20011001 20310901
20011001 20011001 20310901
20011001 20011001 20310901
20011001 20011001 20310901
20011001 20011001 20310901
20011001 20011001 20310901
20011001 20011001 20310901
20011001 20011001 20310901
20011001 20011001 20310901
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20050818 20051001 20350901
20050819 20051001 20350901
20050825 20051001 20350901
20050825 20051001 20350901
20050826 20051001 20350901
20050831 20051001 20350901
20050831 20051001 20350901
20050906 20051101 20351001
20050728 20050901 20350801
20050729 20050901 20350801
20050823 20051001 20350901
STATED_ORIGINAL_TERM PAYMENT ORIGINAL_BALANCE
-------------------- ------- ----------------
360 444.24 54,000.00
360 750.69 86,450.00
314 889.11 93,217.18
360 902.13 121,500.00
360 1,381.20 183,850.00
360 1,753.38 215,500.00
360 2,435.80 340,000.00
360 1,101.97 138,500.00
360 1,560.14 191,750.00
360 1,710.64 215,000.00
360 1,154.07 137,250.00
360 316.19 41,600.00
360 623.26 82,000.00
360 2,240.41 266,444.90
360 484.33 57,600.00
360 876.23 108,900.00
360 716.41 100,000.00
360 1,463.88 176,000.00
360 225.38 30,000.00
360 1,325.37 185,000.00
360 2,448.29 297,600.00
360 749.31 97,450.00
360 440.16 55,950.00
316 951.92 119,944.70
360 1,159.86 135,000.00
360 5,428.23 690,000.00
360 460.84 59,250.00
360 1,267.25 147,500.00
360 789.33 98,100.00
360 1,444.38 183,600.00
360 1,754.63 230,850.00
360 647.93 77,900.00
360 560.93 73,800.00
360 944.04 120,000.00
360 874.49 104,000.00
360 1,031.37 124,000.00
360 751.09 94,400.00
360 2,609.72 328,000.00
360 799.68 104,000.00
360 1,244.47 160,000.00
360 684.34 89,000.00
360 488.18 60,000.00
360 4,403.17 559,700.00
360 2,447.11 337,500.00
360 4,431.94 604,000.00
360 919.61 120,990.00
360 868.53 114,270.00
360 1,176.12 158,400.00
360 1,078.54 148,750.00
360 316.49 43,650.00
360 821.82 112,000.00
360 381.91 48,000.00
360 380.61 49,500.00
360 823.68 105,900.00
360 928.09 128,000.00
360 177.01 22,500.00
360 358.91 49,500.00
360 482.17 66,500.00
360 1,794.55 247,500.00
360 1,908.83 248,250.00
360 428.52 58,400.00
360 884.58 122,000.00
360 1,566.59 213,500.00
360 456.94 63,020.00
360 423.75 57,750.00
180 2,475.45 265,000.00
360 2,946.68 406,400.00
360 245.01 30,450.00
360 366.09 44,500.00
360 571.78 68,000.00
360 1,693.73 210,500.00
360 978.33 116,350.00
360 949.22 123,450.00
360 579.33 72,000.00
360 788.83 105,000.00
360 466.67 60,000.00
360 1,493.41 179,550.00
360 468.92 57,000.00
360 864.51 111,150.00
360 1,050.65 132,050.00
360 787.29 98,950.00
360 772.97 97,150.00
360 955.49 118,750.00
360 363.47 43,700.00
360 456.29 58,000.00
360 1,426.85 217,200.00
360 870.29 103,500.00
360 2,896.15 364,000.00
360 519.52 63,150.00
360 771.91 91,800.00
360 875.83 105,300.00
360 581.40 68,400.00
360 1,191.65 144,850.00
360 571.98 70,300.00
360 753.68 96,900.00
360 510.34 59,400.00
360 527.09 67,000.00
360 1,080.61 134,300.00
360 510.61 64,175.00
180 1,161.09 154,550.00
360 7,250.70 1,000,000.00
360 2,262.22 312,000.00
360 1,130.91 145,400.00
360 225.79 28,700.00
180 1,691.61 220,000.00
360 849.55 121,500.00
360 842.55 120,500.00
360 490.18 63,750.00
360 349.46 47,625.00
360 335.70 45,750.00
360 341.21 46,500.00
360 563.46 75,000.00
360 425.55 59,400.00
360 360.47 49,125.00
360 490.18 63,750.00
360 490.19 63,750.00
360 1,173.48 163,800.00
360 802.75 104,400.00
360 277.05 36,450.00
360 276.81 36,000.00
360 490.18 63,750.00
360 1,011.09 146,392.00
360 2,338.88 334,500.00
360 2,283.57 318,750.00
360 2,262.11 319,600.00
360 923.24 111,000.00
360 852.90 106,000.00
360 2,097.82 255,000.00
360 723.76 92,000.00
360 929.62 113,000.00
360 1,233.25 155,000.00
360 1,110.38 138,000.00
360 905.20 112,500.00
360 700.01 90,000.00
360 976.36 120,000.00
360 1,117.11 142,000.00
360 1,723.75 205,000.00
360 824.04 98,000.00
360 819.51 103,000.00
360 1,757.45 216,000.00
360 574.46 62,800.00
360 378.38 45,000.00
360 582.23 63,650.00
360 567.79 64,700.00
360 355.29 42,253.00
360 1,038.45 123,500.00
180 962.92 122,400.00
360 1,607.48 187,100.00
360 663.01 78,850.00
360 2,622.51 353,200.00
360 522.74 65,700.00
180 2,138.96 260,000.00
360 2,091.73 322,500.00
180 933.35 111,000.00
360 616.53 67,400.00
360 582.23 63,650.00
360 1,737.86 202,275.00
180 593.29 64,000.00
180 338.86 36,000.00
360 522.89 69,600.00
360 2,844.47 349,600.00
180 527.82 54,000.00
360 982.34 144,000.00
360 2,819.77 354,400.00
360 481.35 65,600.00
360 894.46 115,000.00
360 2,438.37 313,500.00
180 1,325.47 159,359.00
180 491.08 62,000.00
180 547.14 68,000.00
180 604.69 76,000.00
180 427.90 55,650.00
180 923.92 106,400.00
180 738.10 85,000.00
180 841.16 95,850.00
360 2,954.28 444,500.00
360 4,984.73 750,000.00
360 442.38 55,600.00
360 405.40 54,600.00
360 550.36 68,400.00
360 399.87 46,050.00
360 2,606.98 324,000.00
360 5,453.88 780,000.00
360 2,610.45 413,000.00
360 4,108.45 650,000.00
360 2,363.35 338,000.00
360 4,656.68 650,000.00
360 3,367.98 459,000.00
360 3,931.80 555,500.00
360 3,266.44 450,500.00
360 5,450.17 685,000.00
360 4,527.42 647,500.00
360 3,125.27 416,000.00
360 5,943.35 839,700.00
360 3,581.43 525,000.00
360 442.43 66,500.00
360 1,970.79 300,000.00
360 322.95 42,000.00
360 1,816.44 223,250.00
180 840.72 90,000.00
360 646.57 90,250.00
360 410.96 59,500.00
360 1,685.03 207,100.00
360 468.47 67,000.00
360 729.18 109,600.00
360 1,432.73 215,350.00
360 1,546.58 213,300.00
360 429.78 63,000.00
360 590.53 85,500.00
360 2,163.82 325,238.00
360 783.23 113,400.00
360 671.25 96,000.00
360 1,433.28 202,500.00
180 3,621.33 396,700.00
360 682.44 97,600.00
360 783.82 112,100.00
180 681.36 73,500.00
180 681.36 73,500.00
360 904.56 127,800.00
360 963.31 137,770.00
120 582.26 49,323.00
120 582.51 49,344.00
360 503.89 58,650.00
180 367.07 37,000.00
360 445.50 60,000.00
360 718.44 88,300.00
360 659.66 93,200.00
360 591.98 68,000.00
360 336.11 38,300.00
360 576.82 69,350.00
360 402.36 42,250.00
360 2,936.71 420,000.00
360 2,495.48 400,000.00
360 573.27 83,000.00
360 300.51 40,000.00
360 2,661.21 400,000.00
360 716.99 102,541.00
360 903.85 113,600.00
360 663.08 97,200.00
180 458.76 52,250.00
360 790.12 113,000.00
360 2,693.63 390,000.00
360 634.34 86,450.00
180 1,546.48 180,000.00
360 377.62 48,000.00
360 503.48 61,200.00
360 792.99 100,800.00
360 781.54 95,000.00
360 669.79 78,800.00
360 390.54 48,000.00
360 953.45 124,000.00
180 383.08 42,750.00
360 326.00 49,000.00
360 578.71 66,000.00
360 1,111.73 167,100.00
360 978.35 139,920.00
360 2,714.93 370,000.00
360 881.37 123,025.00
360 718.31 104,000.00
360 1,538.28 220,000.00
360 820.44 106,700.00
180 367.97 40,000.00
360 5,814.42 873,952.00
360 3,008.94 420,000.00
360 1,152.45 153,400.00
360 5,239.72 722,650.00
360 2,936.71 420,000.00
360 518.38 69,000.00
360 2,229.56 315,000.00
360 2,759.11 420,000.00
240 488.92 59,000.00
360 2,417.36 350,000.00
360 2,237.49 320,000.00
360 797.58 110,000.00
360 455.01 65,075.00
180 299.42 32,800.00
360 1,031.93 128,250.00
360 524.48 74,100.00
360 939.22 128,000.00
360 635.37 95,500.00
360 455.85 66,000.00
360 299.46 41,800.00
360 549.16 80,500.00
360 297.27 42,000.00
360 915.58 127,800.00
360 980.37 127,500.00
360 5,184.54 760,000.00
360 3,201.56 500,000.00
360 3,462.05 507,500.00
360 2,622.46 399,200.00
360 3,496.10 488,000.00
360 3,991.82 600,000.00
360 1,019.45 140,600.00
180 2,896.44 332,500.00
360 1,950.34 300,700.00
360 1,042.92 151,000.00
360 1,473.34 203,200.00
360 731.84 110,000.00
360 1,859.91 266,000.00
360 773.73 108,000.00
360 250.16 37,600.00
360 3,193.46 480,000.00
360 315.66 40,125.00
360 828.78 107,786.00
360 352.21 48,000.00
360 352.21 48,000.00
360 673.00 90,640.00
360 614.14 80,800.00
360 678.23 87,200.00
360 229.16 30,150.00
360 630.43 81,990.00
360 715.21 95,200.00
360 621.28 80,800.00
360 1,225.90 173,200.00
360 1,108.33 139,300.00
360 745.93 108,000.00
360 578.98 81,800.00
360 3,383.60 496,000.00
180 528.40 57,000.00
360 1,364.05 190,400.00
360 473.38 51,750.00
360 531.84 63,250.00
360 433.01 50,400.00
360 903.47 117,500.00
360 463.86 57,650.00
360 388.53 53,000.00
360 452.67 61,750.00
360 736.98 84,050.00
360 1,099.09 133,600.00
360 1,029.11 127,900.00
360 1,180.99 157,200.00
360 641.16 81,500.00
180 967.68 125,850.00
360 328.71 42,750.00
360 1,596.02 205,200.00
360 761.32 105,000.00
360 901.83 118,650.00
360 2,075.74 312,000.00
360 796.21 103,550.00
360 1,240.43 169,050.00
360 920.44 117,000.00
360 603.10 75,800.00
360 653.62 82,150.00
360 499.21 68,850.00
360 3,341.24 450,000.00
180 1,637.13 166,250.00
360 761.59 100,200.00
360 1,206.15 172,500.00
360 259.94 34,200.00
360 1,278.32 166,250.00
360 1,846.98 243,000.00
360 489.21 60,800.00
360 1,470.74 193,500.00
360 664.30 87,400.00
360 913.76 129,100.00
180 1,915.73 255,000.00
180 1,400.76 190,900.00
360 406.40 52,250.00
360 2,766.17 372,550.00
360 231.14 31,500.00
360 355.65 49,050.00
180 238.80 24,800.00
360 746.29 95,950.00
360 1,550.79 197,125.00
360 569.77 74,100.00
360 321.05 39,900.00
360 394.46 51,300.00
360 487.29 61,940.00
360 3,668.83 500,000.00
360 620.98 81,700.00
360 1,706.99 222,000.00
360 997.52 128,250.00
360 148.76 19,800.00
360 606.63 81,700.00
360 1,047.22 130,150.00
360 494.29 63,550.00
360 1,058.06 142,500.00
360 1,477.37 196,650.00
360 713.04 91,675.00
360 1,711.31 225,150.00
360 269.07 35,400.00
360 1,058.06 142,500.00
360 602.33 84,075.00
360 1,753.13 228,000.00
360 795.45 103,450.00
360 796.27 112,500.00
360 3,625.35 500,000.00
360 923.49 121,500.00
360 657.43 85,500.00
360 1,167.98 151,900.00
360 693.95 90,250.00
360 543.92 72,400.00
360 1,127.95 148,400.00
360 395.17 54,500.00
360 1,130.52 145,350.00
360 497.47 65,450.00
360 1,768.20 259,200.00
360 1,769.51 256,200.00
360 1,797.61 280,740.00
360 379.70 53,000.00
360 816.72 114,000.20
360 853.25 119,100.00
180 2,060.18 231,000.00
360 1,970.79 300,000.00
360 2,210.26 324,000.00
360 1,888.75 266,850.00
360 2,541.69 368,000.00
180 2,177.77 250,000.00
360 630.45 88,000.00
360 2,428.55 356,000.00
360 2,182.53 316,000.00
180 2,504.04 285,200.00
360 2,162.24 325,000.00
360 1,730.59 260,120.00
240 742.51 91,300.00
360 974.53 131,250.00
360 1,905.66 266,000.00
360 524.92 76,000.00
360 217.53 30,000.00
360 683.10 92,000.00
360 1,319.80 186,375.00
360 566.83 79,120.00
360 452.93 61,000.00
360 870.09 120,000.00
360 1,964.67 288,000.00
360 1,620.86 237,600.00
360 598.19 82,500.00
360 440.26 60,000.00
360 517.31 70,500.00
360 244.72 33,750.00
180 3,135.99 360,000.00
360 2,210.17 320,000.00
360 2,670.42 406,500.00
360 2,399.99 335,000.00
360 2,107.95 325,000.00
360 2,419.29 346,000.00
360 2,900.58 390,650.00
360 2,177.06 340,000.00
240 2,444.72 318,400.00
360 2,328.56 350,000.00
360 2,673.00 360,000.00
360 2,186.75 337,150.00
360 2,299.25 350,000.00
360 2,266.41 345,000.00
360 518.23 79,900.00
360 944.90 101,223.00
360 603.03 64,600.00
360 1,097.31 130,500.00
360 418.11 48,150.00
360 1,020.68 118,800.00
360 805.50 99,000.00
180 622.45 59,400.00
360 804.17 93,600.00
360 426.55 47,600.00
360 625.24 76,000.00
360 509.99 60,000.00
360 792.01 90,250.00
360 463.94 54,000.00
360 1,333.41 155,200.00
360 851.47 103,500.00
360 877.63 102,150.00
360 1,086.24 135,000.00
360 538.15 64,000.00
360 616.02 57,200.00
360 480.77 53,100.00
360 421.62 52,400.00
360 902.11 105,000.00
360 719.26 90,400.00
360 887.67 107,900.00
360 868.35 100,000.00
360 588.60 70,000.00
360 596.32 72,485.00
360 1,042.82 137,200.00
180 664.63 66,500.00
360 765.15 82,800.00
360 260.76 28,800.00
360 1,310.01 157,500.00
360 842.47 96,000.00
360 448.48 52,200.00
180 578.32 66,600.00
360 612.42 66,950.00
360 582.71 66,400.00
360 1,738.62 196,050.00
360 597.97 69,600.00
360 707.62 83,250.00
360 535.10 59,100.00
360 1,076.29 128,000.00
360 1,194.82 146,850.00
360 715.86 93,100.00
360 847.58 100,800.00
360 557.28 67,000.00
360 643.70 80,000.00
360 285.60 33,600.00
360 2,735.72 340,000.00
360 405.89 48,800.00
360 681.09 81,000.00
360 427.78 55,000.00
360 384.46 50,000.00
360 347.34 40,000.00
360 1,407.09 146,300.00
360 300.33 32,500.00
360 614.54 74,700.00
360 550.70 70,000.00
360 1,385.22 149,900.00
360 1,100.57 117,900.00
180 537.58 55,000.00
360 859.67 99,000.00
360 888.49 108,000.00
360 486.17 55,400.00
180 1,208.21 120,000.00
360 986.13 128,250.00
360 782.30 87,300.00
360 551.60 65,600.00
360 568.89 71,500.00
360 326.05 39,200.00
360 590.53 60,800.00
360 334.24 39,750.00
360 257.75 30,000.00
360 1,151.27 134,000.00
360 1,773.19 269,920.00
360 1,544.58 235,120.00
360 1,983.59 280,250.00
360 1,944.51 296,000.00
360 1,726.41 262,800.00
360 665.35 72,000.00
360 758.23 85,500.00
360 5,095.58 606,000.00
360 753.44 71,900.00
360 1,115.91 118,350.00
360 1,353.39 170,100.00
360 622.23 80,000.00
360 465.43 53,600.00
360 1,055.04 121,500.00
360 896.35 99,000.00
360 397.05 48,800.00
360 1,063.20 123,750.00
360 1,390.09 156,750.00
360 492.54 54,400.00
360 363.42 42,300.00
360 806.17 85,500.00
360 1,181.05 153,600.00
360 941.25 118,300.00
360 1,077.95 129,600.00
360 1,207.13 155,200.00
360 489.33 62,200.00
360 2,328.90 280,000.00
360 362.02 45,500.00
360 515.49 60,000.00
360 1,912.48 225,000.00
360 569.33 68,450.00
360 1,031.37 124,000.00
360 931.98 106,200.00
360 649.70 69,600.00
360 809.56 92,250.00
360 1,280.89 154,000.00
360 1,250.76 147,150.00
360 1,205.01 127,800.00
180 1,951.47 235,000.00
180 2,756.59 331,955.00
360 1,225.51 210,000.00
360 1,797.81 303,920.00
360 2,673.49 440,000.00
360 452.28 63,900.00
360 2,129.54 360,000.00
360 583.58 100,000.00
360 833.91 116,400.00
360 2,768.40 468,000.00
360 2,497.70 428,000.00
360 2,014.80 350,000.00
360 2,567.73 440,000.00
360 615.72 100,000.00
360 616.20 93,800.00
180 1,054.83 125,000.00
180 14,947.39 1,800,000.00
360 3,540.38 575,000.00
360 246.29 40,000.00
360 1,419.38 233,600.00
360 479.65 80,000.00
360 4,069.78 688,000.00
360 3,405.45 568,000.00
360 2,117.92 353,250.00
360 2,697.98 450,000.00
360 741.09 110,000.00
180 837.12 100,000.00
360 817.01 140,000.00
360 2,254.31 376,000.00
180 1,518.95 180,000.00
360 554.40 95,000.00
360 2,217.58 380,000.00
360 401.78 64,400.00
360 442.45 70,000.00
360 2,585.23 443,000.00
360 3,357.49 560,000.00
360 1,575.65 270,000.00
360 3,253.46 550,000.00
360 1,313.04 225,000.00
360 5,252.16 900,000.00
360 1,686.36 260,000.00
360 2,271.51 384,000.00
360 2,248.16 370,000.00
360 916.50 145,000.00
360 1,169.33 185,000.00
360 2,947.37 512,000.00
360 2,847.87 475,000.00
360 537.26 85,000.00
360 2,454.89 415,000.00
360 2,898.54 490,000.00
360 2,855.77 470,000.00
180 805.50 97,000.00
360 592.88 88,000.00
180 1,288.80 155,200.00
360 3,486.99 581,600.00
360 2,668.00 445,000.00
360 4,346.75 725,000.00
180 1,347.77 161,000.00
180 1,464.96 175,000.00
360 5,915.38 1,000,000.00
180 1,327.37 150,000.00
360 3,159.58 520,000.00
360 2,218.27 375,000.00
360 896.44 140,000.00
360 3,273.85 561,000.00
360 1,449.27 245,000.00
360 5,635.78 940,000.00
180 1,255.68 150,000.00
360 1,558.84 260,000.00
360 3,497.28 568,000.00
360 2,480.19 425,000.00
360 1,156.42 157,600.00
360 608.06 80,000.00
360 5,323.84 900,000.00
360 2,366.16 400,000.00
360 2,078.03 342,000.00
360 349.64 46,000.00
360 754.65 116,350.00
360 1,890.78 324,000.00
360 2,551.48 419,920.00
360 2,957.69 500,000.00
360 5,915.38 1,000,000.00
360 2,661.92 450,000.00
360 2,392.65 410,000.00
360 679.45 99,600.00
360 3,479.80 580,400.00
360 1,495.88 249,500.00
360 3,253.46 550,000.00
360 2,608.05 435,000.00
360 2,366.16 400,000.00
360 887.31 150,000.00
360 820.28 135,000.00
360 852.72 125,000.00
360 1,150.54 191,900.00
180 4,982.47 600,000.00
360 434.57 67,000.00
360 430.51 63,900.00
360 4,668.59 800,000.00
360 2,423.99 404,300.00
360 2,142.70 348,000.00
180 1,543.37 180,000.00
360 1,847.16 300,000.00
360 1,798.66 300,000.00
360 2,147.55 368,000.00
360 1,293.01 210,000.00
360 1,960.81 336,000.00
360 1,330.55 228,000.00
360 6,076.11 1,000,000.00
360 2,383.22 397,500.00
240 2,836.96 400,000.00
180 1,097.02 130,000.00
360 8,093.94 1,350,000.00
180 2,320.61 275,000.00
360 4,085.01 700,000.00
360 1,288.53 220,800.00
360 2,334.30 400,000.00
180 920.83 110,000.00
360 623.67 97,400.00
360 2,694.76 443,500.00
360 3,151.30 540,000.00
360 3,478.10 596,000.00
360 359.14 59,900.00
240 1,111.95 160,000.00
360 5,915.38 1,000,000.00
180 1,524.44 175,000.00
360 2,042.51 350,000.00
180 622.81 75,000.00
360 1,419.70 240,000.00
180 830.41 100,000.00
180 1,238.88 140,000.00
360 2,351.96 397,600.00
180 1,555.66 180,000.00
240 691.94 91,000.00
360 708.08 115,000.00
360 1,274.03 180,000.00
360 1,169.87 190,000.00
360 1,761.04 240,000.00
360 1,524.08 232,000.00
360 758.65 130,000.00
180 1,255.68 150,000.00
360 3,015.74 503,000.00
180 1,799.08 211,500.00
360 541.31 82,400.00
360 853.30 135,000.00
360 2,451.01 420,000.00
180 763.70 90,500.00
360 1,875.99 275,000.00
360 3,159.58 520,000.00
360 1,350.65 205,600.00
180 4,152.06 500,000.00
360 3,472.26 595,000.00
360 2,531.79 428,000.00
360 2,515.20 431,000.00
360 1,454.37 208,000.00
360 1,011.31 160,000.00
360 875.61 135,000.00
360 1,959.42 310,000.00
360 1,136.51 194,750.00
360 931.41 155,350.00
360 603.41 98,000.00
360 955.05 140,000.00
360 1,111.50 187,900.00
360 1,883.19 322,700.00
180 680.50 80,000.00
360 1,232.34 190,000.00
360 5,812.39 996,000.00
180 6,663.99 809,000.00
360 1,519.03 250,000.00
360 303.90 44,000.00
360 262.78 40,000.00
360 888.58 137,000.00
360 758.86 117,000.00
360 3,758.21 644,000.00
360 549.01 88,000.00
360 839.38 140,000.00
360 985.40 150,000.00
360 2,691.69 415,000.00
360 5,255.44 800,000.00
360 2,396.86 410,720.00
180 3,819.89 460,000.00
360 1,222.12 206,600.00
180 2,059.02 244,000.00
360 1,726.71 288,000.00
360 869.57 147,000.00
360 729.47 125,000.00
360 1,083.67 176,000.00
360 1,230.99 208,100.00
180 1,381.25 165,000.00
360 8,873.07 1,500,000.00
360 3,453.94 600,000.00
360 1,798.66 300,000.00
360 198.04 33,478.00
360 1,111.21 187,850.00
360 2,709.97 452,000.00
360 3,201.56 500,000.00
360 2,957.69 500,000.00
360 242.54 41,000.00
360 475.34 77,200.00
180 1,742.22 200,000.00
360 1,093.70 180,000.00
360 2,446.54 425,000.00
360 2,130.05 365,000.00
360 617.34 101,600.00
180 1,162.58 140,000.00
180 1,337.79 150,000.00
360 4,174.83 652,000.00
360 1,721.54 295,000.00
360 873.42 140,000.00
360 638.07 88,000.00
360 608.55 101,500.00
360 2,334.30 400,000.00
180 1,481.70 177,000.00
360 748.65 120,000.00
360 3,223.68 560,000.00
360 1,264.08 190,000.00
180 871.11 100,000.00
360 6,906.83 1,152,000.00
360 1,372.52 220,000.00
360 3,821.24 654,800.00
360 985.15 160,000.00
360 3,038.06 500,000.00
180 662.05 76,000.00
360 12,477.40 2,000,000.00
360 1,621.50 250,000.00
360 1,230.40 208,000.00
360 2,188.36 365,000.00
180 381.99 46,000.00
180 1,215.16 144,000.00
360 3,602.79 570,000.00
360 970.13 164,000.00
360 1,148.48 196,800.00
180 1,245.62 150,000.00
360 2,334.30 400,000.00
360 221.66 36,000.00
360 2,528.15 380,000.00
360 1,277.73 216,000.00
360 1,954.97 335,000.00
180 912.87 100,000.00
180 729.94 86,500.00
360 554.15 90,000.00
360 2,357.53 388,000.00
360 2,430.45 400,000.00
360 3,312.62 560,000.00
360 7,002.88 1,200,000.00
360 1,922.84 275,000.00
360 2,763.16 480,000.00
360 4,893.08 850,000.00
360 654.20 103,500.00
360 8,753.60 1,500,000.00
360 2,519.08 420,160.00
360 4,316.77 720,000.00
360 5,028.08 850,000.00
240 3,301.09 475,000.00
360 657.36 104,000.00
360 2,188.40 375,000.00
360 521.61 87,000.00
360 916.89 155,000.00
360 875.36 150,000.00
360 554.40 95,000.00
360 2,591.07 444,000.00
360 946.47 160,000.00
360 2,428.18 405,000.00
360 1,580.17 250,000.00
360 1,341.32 215,000.00
360 3,968.30 680,000.00
360 11,830.76 2,000,000.00
360 1,075.41 167,950.00
360 1,738.70 290,000.00
360 5,835.73 1,000,000.00
360 473.23 80,000.00
360 2,792.71 465,800.00
240 10,963.93 1,500,000.00
360 2,398.21 400,000.00
360 501.37 78,300.00
360 1,651.52 283,000.00
180 1,132.44 130,000.00
360 2,699.98 411,000.00
360 1,989.99 341,000.00
360 948.11 150,000.00
360 1,394.49 215,000.00
180 1,411.70 170,000.00
360 809.01 114,300.00
360 2,691.69 415,000.00
360 10,117.42 1,687,500.00
360 8,873.07 1,500,000.00
360 2,957.69 500,000.00
360 2,514.04 425,000.00
360 3,897.08 650,000.00
360 3,519.65 595,000.00
360 2,744.74 464,000.00
360 1,413.48 238,950.00
360 2,187.40 360,000.00
360 2,579.11 436,000.00
360 3,667.54 620,000.00
360 2,303.45 389,400.00
360 5,146.38 870,000.00
360 2,398.21 400,000.00
360 2,451.34 414,400.00
360 2,307.00 390,000.00
360 3,062.36 504,000.00
360 2,907.82 485,000.00
360 2,997.76 500,000.00
360 875.48 148,000.00
360 2,440.10 412,500.00
360 3,142.25 531,200.00
360 1,468.90 245,000.00
360 11,874.11 1,928,500.00
360 2,721.08 460,000.00
360 2,342.49 396,000.00
360 4,353.72 736,000.00
360 2,153.20 364,000.00
360 2,839.39 480,000.00
360 2,957.69 500,000.00
360 2,366.16 400,000.00
360 2,360.24 399,000.00
360 3,908.89 660,800.00
360 2,247.85 380,000.00
360 2,470.27 417,600.00
360 3,549.23 600,000.00
360 2,366.16 400,000.00
360 5,831.06 999,200.00
360 3,647.33 625,000.00
360 2,362.31 404,800.00
360 2,742.80 470,000.00
360 2,162.14 370,500.00
360 3,209.66 550,000.00
360 2,098.53 359,600.00
360 2,529.42 427,600.00
360 975.74 167,200.00
360 3,034.58 520,000.00
360 2,917.87 500,000.00
360 3,034.58 520,000.00
360 4,096.69 702,000.00
360 2,483.69 425,600.00
360 2,754.47 472,000.00
360 2,340.13 401,000.00
CURRENT_BALANCE CURRENT_GROSS_COUPON SERV_FEE
--------------- -------------------- --------
52,089.86 9.2500 0.2500
80,021.73 9.8750 0.2500
92,366.04 10.7500 0.2500
112,696.28 8.1250 0.2500
174,552.60 8.2500 0.2500
206,187.15 9.1250 0.2500
319,678.83 7.7500 0.2500
133,253.67 8.8750 0.2500
184,814.09 9.1250 0.2500
207,035.18 8.8750 0.2500
132,587.88 9.5000 0.2500
39,900.51 8.3750 0.2500
78,522.43 8.3750 0.2500
262,209.78 9.5000 0.2500
55,417.81 9.5000 0.2500
98,393.22 9.0000 0.2500
95,437.46 7.7500 0.2500
170,057.72 9.3750 0.2500
28,738.13 8.2500 0.2500
176,408.90 7.7500 0.2500
286,831.69 9.2500 0.2500
93,582.86 8.5000 0.2500
53,829.05 8.7500 0.2500
118,876.71 8.5000 0.2500
130,590.13 9.7500 0.2500
664,428.31 8.7500 0.2500
56,978.54 8.6250 0.2500
142,711.24 9.7500 0.2500
94,529.06 9.0000 0.2500
176,795.76 8.7500 0.2500
221,824.57 8.3750 0.2500
75,367.58 9.3750 0.2500
70,925.89 8.3750 0.2500
113,945.50 8.7500 0.2500
100,724.51 9.5000 0.2500
120,001.84 9.3750 0.2500
90,972.36 8.8750 0.2500
316,100.92 8.8750 0.2500
100,044.10 8.5000 0.2500
153,757.89 8.6250 0.2500
85,371.06 8.5000 0.2500
57,946.12 9.1250 0.2500
537,939.24 8.7500 0.2500
322,506.13 7.8750 0.2500
576,440.79 8.0000 0.2500
116,007.87 8.3750 0.2500
109,621.77 8.3750 0.2500
151,621.55 8.1250 0.2500
142,056.91 7.8750 0.2500
41,710.36 7.8750 0.2500
99,927.05 8.0000 0.2500
46,201.14 8.8750 0.2500
47,288.87 8.5000 0.2500
90,539.62 8.6250 0.2500
121,221.81 7.8750 0.2500
20,881.88 8.7500 0.2500
44,066.67 7.8750 0.2500
63,037.64 7.8750 0.2500
236,428.05 7.8750 0.2500
238,399.04 8.5000 0.2500
55,918.04 8.0000 0.2500
116,378.06 7.8750 0.2500
203,773.65 8.0000 0.2500
60,049.43 7.8750 0.2500
55,104.14 8.0000 0.2500
218,495.43 7.6250 0.2500
385,843.71 7.8750 0.2500
29,421.16 9.0000 0.2500
43,030.54 9.2500 0.2500
65,908.47 9.5000 0.2500
203,050.47 9.0000 0.2500
112,758.44 9.5000 0.2500
118,875.47 8.5000 0.2500
68,070.40 9.0000 0.2500
99,848.08 8.2500 0.2500
55,456.58 8.6250 0.2500
173,884.57 9.3750 0.2500
52,468.83 9.2500 0.2500
106,523.98 8.6250 0.2500
127,484.00 8.8750 0.2500
95,108.50 8.8750 0.2500
93,565.45 8.8750 0.2500
114,676.35 9.0000 0.2500
42,130.72 9.3750 0.2500
55,938.73 8.7500 0.2500
199,715.49 6.8750 0.2500
99,535.61 9.5000 0.2500
350,155.18 8.8750 0.2500
61,016.80 9.2500 0.2500
88,440.22 9.5000 0.2500
101,752.59 9.3750 0.2500
66,295.57 9.6250 0.2500
139,729.87 9.2500 0.2500
67,831.48 9.1250 0.2500
89,297.05 8.6250 0.2500
57,150.74 9.7500 0.2500
64,519.04 8.7500 0.2500
129,655.50 9.0000 0.2500
61,899.06 8.8750 0.2500
148,267.70 8.2500 0.2500
959,355.24 7.8750 0.2500
298,556.39 7.8750 0.2500
138,705.83 8.6250 0.2500
27,425.45 8.7500 0.2500
211,589.43 8.5000 0.2500
116,034.83 7.5000 0.2500
114,749.21 7.5000 0.2500
61,382.64 8.5000 0.2500
45,691.26 8.0000 0.2500
43,892.51 8.0000 0.2500
44,611.68 8.0000 0.2500
56,254.90 8.2500 0.2500
55,820.68 7.7500 0.2500
47,130.16 8.0000 0.2500
61,387.72 8.5000 0.2500
61,039.84 8.5000 0.2500
156,764.60 7.7500 0.2500
100,247.27 8.5000 0.2500
35,067.68 8.3750 0.2500
33,689.72 8.5000 0.2500
61,381.02 8.5000 0.2500
139,732.80 7.3750 0.2500
320,316.49 7.5000 0.2500
305,830.96 7.7500 0.2500
306,343.78 7.6250 0.2500
107,337.21 9.3750 0.2500
102,216.64 9.0000 0.2500
241,498.33 9.2500 0.2500
88,064.66 8.7500 0.2500
108,563.67 9.2500 0.2500
149,513.95 8.8750 0.2500
133,562.21 9.0000 0.2500
108,608.61 9.0000 0.2500
86,712.53 8.6250 0.2500
115,571.53 9.1250 0.2500
137,092.69 8.7500 0.2500
198,694.63 9.5000 0.2500
94,802.66 9.5000 0.2500
99,169.85 8.8750 0.2500
209,205.59 9.1250 0.2500
61,273.88 10.5000 0.2500
43,648.93 9.5000 0.2500
61,005.67 10.5000 0.2500
62,909.82 10.0000 0.2500
40,915.01 9.5000 0.2500
119,760.24 9.5000 0.2500
118,129.16 8.7500 0.2500
181,871.72 9.7500 0.2500
76,589.55 9.5000 0.2500
339,677.31 8.1250 0.2500
60,590.06 8.8750 0.2500
252,399.89 9.2500 0.2500
299,330.63 6.7500 0.2500
107,584.11 9.5000 0.2500
65,811.00 10.5000 0.2500
62,032.97 10.5000 0.2500
196,053.89 9.7500 0.2500
52,424.03 7.5000 0.2500
28,702.39 7.7500 0.2500
67,207.86 8.2500 0.2500
338,603.40 9.1250 0.2500
45,127.74 8.3750 0.2500
137,599.85 7.2500 0.2500
343,129.55 8.8750 0.2500
63,239.56 8.0000 0.2500
111,314.67 8.6250 0.2500
295,740.67 8.6250 0.2500
154,575.42 9.3750 0.2500
60,013.48 8.8250 0.2500
65,903.48 9.0000 0.2500
73,615.76 8.8750 0.2500
53,322.24 8.5000 0.2500
103,497.28 9.8750 0.2500
82,387.43 9.8750 0.2500
93,038.45 10.0000 0.2500
425,382.14 6.9900 0.2500
597,052.85 6.9900 0.2500
53,855.70 8.8750 0.2500
52,592.39 8.1250 0.2500
65,928.62 9.0000 0.2500
44,793.91 9.8750 0.2500
313,566.70 9.0000 0.2500
750,025.51 7.5000 0.2500
386,977.17 6.5000 0.2500
616,359.57 6.5000 0.2500
292,614.62 7.5000 0.2500
625,675.74 7.7500 0.2500
442,899.62 8.0000 0.2500
512,523.56 7.6250 0.2500
435,155.14 7.8750 0.2500
661,290.51 8.8750 0.2500
622,617.34 7.5000 0.2500
401,527.11 8.2500 0.2500
809,368.47 7.6250 0.2500
462,758.46 7.2500 0.2500
63,982.51 7.0000 0.2500
288,389.08 6.8750 0.2500
40,794.17 8.5000 0.2500
217,559.16 9.1250 0.2500
77,453.56 7.6250 0.2500
86,122.49 7.7500 0.2500
57,017.16 7.3750 0.2500
201,708.31 9.1250 0.2500
64,684.68 7.5000 0.2500
105,328.05 7.0000 0.2500
207,423.28 7.0000 0.2500
206,543.01 7.8750 0.2500
60,768.87 7.2500 0.2500
82,559.93 7.3750 0.2500
312,919.82 7.0000 0.2500
109,360.14 7.3750 0.2500
92,668.38 7.5000 0.2500
195,660.28 7.6250 0.2500
339,919.36 7.2500 0.2500
93,986.73 7.5000 0.2500
108,174.14 7.5000 0.2500
49,758.65 7.5000 0.2500
48,397.83 7.5000 0.2500
123,363.36 7.6250 0.2500
132,699.68 7.5000 0.2500
36,709.10 7.3750 0.2500
36,648.73 7.3750 0.2500
57,184.91 9.7500 0.2500
31,925.54 8.6250 0.2500
54,266.19 8.1250 0.2500
85,760.87 9.1250 0.2500
89,780.08 7.6250 0.2500
66,422.67 9.9050 0.2500
37,452.13 10.0000 0.2500
67,544.05 9.3750 0.2500
41,437.55 11.0000 0.2500
405,884.41 7.5000 0.2500
383,290.71 6.3750 0.2500
80,082.33 7.3750 0.2500
38,661.40 8.2500 0.2500
385,190.86 7.0000 0.2500
99,046.58 7.5000 0.2500
110,595.23 8.8750 0.2500
93,780.54 7.2500 0.2500
44,650.75 6.6250 0.2500
109,031.96 7.5000 0.2500
376,589.89 7.3750 0.2500
83,658.51 8.0000 0.2500
173,990.69 9.7500 0.2500
46,665.41 8.7500 0.2500
59,676.88 9.2500 0.2500
98,117.95 8.7500 0.2500
92,061.85 9.2500 0.2500
76,963.90 9.6250 0.2500
46,706.59 9.1250 0.2500
119,189.57 8.5000 0.2500
41,533.41 10.2500 0.2500
46,948.60 7.0000 0.2500
64,577.15 9.9900 0.2500
160,948.91 7.0000 0.2500
135,349.62 7.5000 0.2500
358,487.67 8.0000 0.2500
118,109.16 7.7500 0.2500
100,355.33 7.3750 0.2500
211,920.49 7.5000 0.2500
103,487.67 8.5000 0.2500
34,324.70 7.3750 0.2500
832,266.90 7.0000 0.2500
406,135.81 7.7500 0.2500
148,655.47 8.2500 0.2500
698,689.62 7.8750 0.2500
405,533.94 7.5000 0.2500
66,924.01 8.2500 0.2500
304,359.81 7.6250 0.2500
404,628.60 6.8750 0.2500
54,495.23 7.8750 0.2500
337,965.22 7.3750 0.2500
309,133.50 7.5000 0.2500
105,196.14 7.8750 0.2500
62,863.35 7.5000 0.2500
28,361.01 7.2500 0.2500
124,996.19 9.0000 0.2500
70,410.53 7.6250 0.2500
123,978.24 8.0000 0.2500
92,042.14 7.0000 0.2500
63,775.18 7.3750 0.2500
39,648.14 7.7500 0.2500
77,567.82 7.2500 0.2500
40,582.04 7.6250 0.2500
123,581.17 7.7500 0.2500
123,840.06 8.5000 0.2500
731,061.46 7.2500 0.2500
480,314.66 6.6250 0.2500
488,924.39 7.2500 0.2500
383,737.74 6.8750 0.2500
471,881.58 7.7500 0.2500
577,288.44 7.0000 0.2500
136,064.72 7.8750 0.2500
282,361.85 6.5000 0.2500
164,870.29 6.7500 0.2500
144,842.78 7.3750 0.2500
196,827.30 7.8750 0.2500
104,310.88 7.0000 0.2500
257,216.18 7.5000 0.2500
103,913.02 7.7500 0.2500
35,809.24 7.0000 0.2500
462,331.62 7.0000 0.2500
39,057.47 8.7500 0.2500
104,740.07 8.5000 0.2500
46,328.31 8.0000 0.2500
46,529.07 8.0000 0.2500
87,894.71 8.1250 0.2500
78,188.14 8.3750 0.2500
84,686.45 8.6250 0.2500
28,946.01 8.3750 0.2500
79,570.17 8.5000 0.2500
91,910.34 8.2500 0.2500
78,374.01 8.5000 0.2500
167,511.29 7.6250 0.2500
135,470.16 8.8750 0.2500
104,363.87 7.3750 0.2500
79,098.07 7.6250 0.2500
478,459.45 7.2500 0.2500
49,151.51 7.5000 0.2500
178,522.94 7.7500 0.2500
50,642.93 10.5000 0.2500
61,792.69 9.5000 0.2500
49,265.62 9.7500 0.2500
114,202.24 8.5000 0.2500
56,114.10 9.0000 0.2500
51,286.69 7.9900 0.2500
59,825.67 7.9900 0.2500
82,288.88 9.9900 0.2500
130,369.62 9.2500 0.2500
124,655.26 9.0000 0.2500
150,166.87 8.2500 0.2500
79,331.34 8.7500 0.2500
122,338.68 8.5000 0.2500
40,223.11 8.5000 0.2500
199,608.86 8.6250 0.2500
100,278.01 7.8750 0.2500
115,260.52 8.3750 0.2500
300,193.22 7.0000 0.2500
100,577.72 8.5000 0.2500
163,869.99 8.0000 0.2500
113,796.65 8.7500 0.2500
73,728.87 8.8750 0.2500
59,355.49 8.8750 0.2500
66,165.83 7.8750 0.2500
436,290.41 8.1250 0.2500
140,762.72 8.5000 0.2500
68,280.07 8.3750 0.2500
166,539.48 7.5000 0.2500
33,190.46 8.3750 0.2500
161,611.54 8.5000 0.2500
236,058.41 8.3750 0.2500
59,068.30 9.0000 0.2500
187,972.60 8.3750 0.2500
84,902.01 8.3750 0.2500
124,757.44 7.6250 0.2500
247,542.83 8.2500 0.2500
184,917.43 8.0000 0.2500
50,785.00 8.6250 0.2500
351,237.93 8.1250 0.2500
30,507.04 8.0000 0.2500
47,422.22 7.8750 0.2500
20,750.89 8.1250 0.2500
93,183.94 8.6250 0.2500
191,378.30 8.7500 0.2500
71,912.85 8.5000 0.2500
38,738.48 9.0000 0.2500
49,799.85 8.5000 0.2500
58,490.15 8.7500 0.2500
482,406.44 8.0000 0.2500
79,231.54 8.3750 0.2500
215,090.51 8.5000 0.2500
124,379.65 8.6250 0.2500
19,180.44 8.2500 0.2500
78,865.32 8.1250 0.2500
126,569.60 9.0000 0.2500
61,630.53 8.6250 0.2500
137,980.68 8.1250 0.2500
190,558.45 8.2500 0.2500
89,032.28 8.6250 0.2500
218,718.20 8.3750 0.2500
34,388.53 8.3750 0.2500
137,948.39 8.1250 0.2500
81,268.44 7.7500 0.2500
221,455.02 8.5000 0.2500
100,026.10 8.5000 0.2500
108,697.09 7.6250 0.2500
344,357.12 7.8750 0.2500
113,984.30 8.3750 0.2500
82,990.10 8.5000 0.2500
147,539.93 8.5000 0.2500
87,623.28 8.5000 0.2500
69,580.55 8.2500 0.2500
144,088.97 8.3750 0.2500
46,184.21 7.8750 0.2500
141,389.35 8.6250 0.2500
59,279.69 8.3750 0.2500
230,240.86 7.2500 0.5000
235,949.95 7.3750 0.2500
252,773.08 6.6250 0.2000
41,339.25 7.7500 0.2500
93,978.99 7.7500 0.2000
105,388.84 7.7500 0.2000
85,954.21 6.8750 0.2500
271,135.60 6.8750 0.2000
269,219.40 7.2500 0.2000
236,159.04 7.6250 0.2000
335,067.78 7.3750 0.2000
126,684.51 6.5000 0.2000
79,114.13 7.7500 0.2000
315,463.45 7.2500 0.2500
288,042.45 7.3750 0.2500
151,080.34 6.6250 0.2000
293,928.71 7.0000 0.2000
232,785.03 7.0000 0.2000
71,950.07 7.6250 0.2500
107,436.80 8.1250 0.2500
225,991.90 7.7500 0.2000
57,774.82 7.3750 0.2000
27,513.93 7.8750 0.2500
84,659.16 8.1250 0.2500
168,462.67 7.6300 0.2500
72,420.36 7.7500 0.2000
56,169.47 8.1250 0.2500
102,342.53 7.8750 0.2500
261,623.05 7.2500 0.2500
200,072.10 7.2500 0.2000
74,948.51 7.8750 0.2500
55,041.32 8.0000 0.2500
62,971.55 8.0000 0.2500
30,830.57 7.8750 0.2500
217,097.20 6.5000 0.2500
291,385.66 7.3750 0.2500
388,120.39 6.8750 0.2500
315,314.91 7.7500 0.7500
290,970.90 6.7500 0.2500
308,998.65 7.5000 0.2500
97,191.12 8.1250 0.7500
314,856.06 6.6250 0.2500
278,947.19 6.8750 0.2500
334,332.33 7.0000 0.2500
342,759.49 8.1250 0.7500
309,272.74 6.7500 0.2500
334,938.13 6.8750 0.2500
328,363.22 6.8750 0.5000
75,953.58 6.7500 0.2500
96,197.14 10.7500 0.2500
62,292.36 10.7500 0.2500
125,283.31 9.5000 0.2500
46,421.39 9.8750 0.2500
110,413.24 9.7500 0.2500
93,354.40 9.1250 0.2500
57,065.72 12.2500 0.2500
89,834.73 9.7500 0.2500
41,887.91 10.2500 0.2500
72,658.96 9.2500 0.2500
57,347.48 9.6250 0.2500
73,040.54 10.0000 0.2500
50,936.36 9.7500 0.2500
149,169.66 9.7500 0.2500
99,222.54 9.2500 0.2500
83,296.68 9.7500 0.2500
129,239.73 9.0000 0.2500
43,003.50 9.5000 0.2500
55,469.15 12.6250 0.2500
51,211.44 10.3750 0.2500
49,440.37 9.0000 0.2500
99,864.30 9.7500 0.2500
15,591.04 8.8750 0.2500
101,722.85 9.2500 0.2500
96,268.64 9.8750 0.2500
40,768.91 9.5000 0.2500
69,489.98 9.2500 0.2500
129,665.64 8.3750 0.2500
52,700.74 8.7500 0.2500
77,990.87 10.6250 0.2500
27,583.22 10.3750 0.2500
151,057.62 9.3750 0.2500
92,460.87 10.0000 0.2500
50,165.56 9.7500 0.2500
64,171.30 9.8750 0.2500
64,531.14 10.5000 0.2500
56,376.65 10.0000 0.2500
188,947.40 10.1250 0.2500
66,513.20 9.7500 0.2500
79,793.35 9.6250 0.2500
44,462.48 10.3750 0.2500
122,428.72 9.5000 0.2500
139,628.97 9.1250 0.2500
88,815.18 8.5000 0.2500
96,828.31 9.5000 0.2500
61,967.41 9.3750 0.2500
76,003.51 9.0000 0.2500
32,313.32 9.6250 0.2500
324,974.37 9.0000 0.2500
45,653.51 9.3750 0.2500
77,848.24 9.5000 0.2500
51,872.56 8.6250 0.2500
47,648.46 8.5000 0.2500
38,352.49 9.8750 0.2500
141,675.28 11.1250 0.2500
31,459.40 10.6250 0.2500
71,574.13 9.2500 0.2500
66,593.14 8.7500 0.2500
145,048.14 10.6250 0.2500
113,354.43 10.7500 0.2500
43,093.94 8.3750 0.2500
91,479.45 9.8750 0.2500
103,570.98 9.2500 0.2500
53,309.27 10.0000 0.2500
94,264.24 8.8750 0.2500
121,332.22 8.5000 0.2500
84,108.42 10.2500 0.2500
63,030.07 9.5000 0.2500
68,354.10 8.8750 0.2500
37,691.78 9.3750 0.2500
58,016.99 11.2500 0.2500
38,286.94 9.5000 0.5000
28,864.87 9.7500 0.5000
129,291.25 9.7500 0.5000
236,518.02 6.8750 0.2000
204,922.79 6.8750 0.2000
254,593.98 7.6250 0.2000
243,284.19 6.8750 0.2000
235,021.67 6.8750 0.2000
69,601.42 10.6250 0.2500
82,639.09 10.1250 0.2500
582,564.68 9.5000 0.2500
69,980.86 12.2500 0.2500
114,838.76 10.8750 0.2500
163,005.74 8.8750 0.2500
67,166.17 8.6250 0.2500
51,680.90 9.8750 0.2500
116,612.69 9.8750 0.2500
95,817.16 10.3750 0.2500
42,133.04 9.1250 0.2500
119,308.11 9.7500 0.2500
151,341.25 10.1250 0.2500
51,576.26 10.3750 0.2500
40,692.64 9.7500 0.2500
82,915.89 10.8750 0.2500
145,043.47 8.5000 0.2500
107,691.77 8.8750 0.2500
124,193.85 9.3750 0.2500
148,356.54 8.6250 0.2500
59,518.30 8.7500 0.2500
269,453.21 9.3750 0.2500
43,521.05 8.8750 0.2500
57,749.45 9.7500 0.2500
216,153.94 9.6250 0.2500
65,741.74 9.3750 0.2500
119,142.90 9.3750 0.2500
79,035.69 10.0000 0.2500
67,472.97 10.7500 0.2500
89,042.18 10.0000 0.2500
147,679.20 9.3750 0.2500
141,744.86 9.6250 0.2500
123,820.77 10.8750 0.2500
220,124.09 5.7500 0.2500
300,117.96 5.7500 0.2500
202,341.83 5.7500 0.2500
292,999.22 5.8750 0.2500
429,591.40 6.1250 0.2500
61,860.48 7.6250 0.2500
347,404.69 5.8750 0.2500
97,116.23 5.7500 0.2500
111,905.14 7.7500 0.2500
445,955.34 5.8750 0.2500
414,643.69 5.7500 0.2500
347,404.71 5.6250 0.2500
429,365.51 5.7500 0.2500
97,900.07 6.2500 0.2500
90,367.17 6.8750 0.2500
100,406.55 6.0000 0.2500
1,694,356.44 5.7500 0.2500
551,334.29 6.2500 0.2500
37,281.75 6.2500 0.2500
225,171.06 6.1250 0.2500
77,335.86 6.0000 0.2500
670,967.36 5.8750 0.2500
554,253.68 6.0000 0.2500
339,926.83 6.0000 0.2500
439,109.42 6.0000 0.2500
89,176.02 7.1250 0.2500
70,221.97 5.8750 0.2500
135,962.80 5.7500 0.2500
366,900.39 6.0000 0.2500
147,072.34 6.0000 0.2500
92,372.23 5.7500 0.2500
368,593.12 5.7500 0.2500
60,416.70 6.3750 0.2500
68,310.65 6.5000 0.2500
430,225.80 5.7500 0.2500
525,184.69 6.0000 0.2500
261,245.32 5.7500 0.2500
531,277.58 5.8750 0.2500
217,710.13 5.7500 0.2500
876,160.69 5.7500 0.2500
248,424.03 6.7500 0.2500
379,216.88 5.8750 0.2500
356,006.92 6.1250 0.2500
136,713.01 6.5000 0.2500
178,546.11 6.5000 0.2500
501,149.56 5.6250 0.2500
461,367.00 6.0000 0.2500
80,800.56 6.5000 0.2500
401,850.25 5.8750 0.2500
474,473.90 5.8750 0.2500
455,231.37 6.1250 0.2500
91,713.42 5.7500 0.2500
84,010.96 7.1250 0.2500
138,248.96 5.7500 0.2500
566,875.17 6.0000 0.2500
434,724.86 6.0000 0.2500
701,005.85 6.0000 0.2500
151,600.06 5.8750 0.2500
161,176.76 5.8750 0.2500
974,102.48 5.8750 0.2500
126,476.21 6.7500 0.2500
505,818.40 6.1250 0.2500
365,716.15 5.8750 0.2500
133,177.02 6.6250 0.2500
554,796.28 5.7500 0.2500
232,352.00 5.8750 0.2500
898,810.19 6.0000 0.2500
122,525.70 5.8750 0.2500
258,677.60 6.0000 0.2500
559,614.31 6.2500 0.2500
411,226.66 5.7500 0.2500
149,670.27 8.0000 0.2500
75,927.60 8.3750 0.2500
882,777.78 5.8750 0.2500
387,324.70 5.8750 0.2500
334,281.50 6.1250 0.2500
43,898.93 8.3750 0.2500
110,847.17 6.7500 0.2500
314,797.60 5.7500 0.2500
409,044.91 6.1250 0.2500
496,903.68 5.8750 0.2500
975,243.23 5.8750 0.2500
434,026.81 5.8750 0.2500
399,617.01 5.7500 0.2500
94,548.70 7.2500 0.2500
566,353.44 6.0000 0.2500
243,698.19 6.0000 0.2500
534,496.15 5.8750 0.2500
414,316.28 6.0000 0.2500
392,340.24 5.8750 0.2500
144,663.94 5.8750 0.2500
133,358.46 6.1250 0.2500
117,692.33 7.2500 0.2500
184,738.45 6.0000 0.2500
591,509.34 5.7500 0.2500
63,659.75 6.7500 0.2500
60,201.22 7.1250 0.2500
780,669.59 5.7500 0.2500
394,944.34 6.0000 0.2500
345,992.82 6.2500 0.2500
153,859.43 6.2500 0.2500
287,726.45 6.2500 0.2500
288,607.52 6.0000 0.2500
354,382.65 5.7500 0.2500
204,694.34 6.2500 0.2500
309,442.72 5.7500 0.2500
214,304.44 5.7500 0.2500
979,589.06 6.1250 0.2500
329,939.69 6.0000 0.2500
341,388.21 5.8750 0.2500
107,444.23 6.0000 0.2500
1,303,488.07 6.0000 0.2500
225,039.39 6.0000 0.2500
688,444.90 5.7500 0.2500
213,381.39 5.7500 0.2500
390,334.69 5.7500 0.2500
82,466.40 5.8750 0.2500
92,240.38 6.6250 0.2500
420,778.63 6.1250 0.2500
526,951.95 5.7500 0.2500
581,202.31 5.7500 0.2500
58,180.53 6.0000 0.2500
147,114.88 5.6250 0.2500
985,263.11 5.8750 0.2500
141,627.85 6.5000 0.2500
346,265.92 5.7500 0.2500
58,769.83 5.7500 0.2500
235,261.70 5.8750 0.2500
75,092.69 5.7500 0.2500
112,822.92 6.7500 0.2500
391,740.53 5.8750 0.2500
86,238.14 6.3750 0.2500
81,109.25 6.7500 0.2500
110,559.95 6.2500 0.2500
172,360.64 7.6250 0.2500
173,571.59 6.2500 0.2500
230,030.39 8.0000 0.2500
223,020.80 6.8750 0.2500
126,251.24 5.7500 0.2500
110,499.55 5.8750 0.2500
486,836.12 6.0000 0.2500
155,167.62 6.1250 0.2500
79,167.89 6.8750 0.2500
127,520.12 6.5000 0.2500
406,868.68 5.7500 0.2500
74,449.62 6.0000 0.2500
260,348.06 7.2500 0.2500
512,141.86 6.1250 0.2500
141,383.51 6.8750 0.2500
429,088.56 5.7500 0.2500
577,775.89 5.7500 0.2500
424,900.16 5.8750 0.2500
405,973.72 5.7500 0.2500
198,601.32 7.5000 0.2500
154,788.93 6.5000 0.2500
126,242.10 6.7500 0.2500
301,629.89 6.5000 0.2500
191,148.44 5.7500 0.2500
149,872.81 6.0000 0.2500
92,813.27 6.2500 0.2500
133,499.24 7.2500 0.2500
178,444.22 5.8750 0.2500
309,845.60 5.7500 0.2500
65,458.93 6.1250 0.2500
181,014.21 6.7500 0.2500
975,366.46 5.7500 0.2500
706,766.09 5.6250 0.2500
240,072.02 6.1250 0.2500
41,751.40 7.3750 0.2500
38,060.27 6.8750 0.2500
131,725.39 6.7500 0.2500
111,466.68 6.7500 0.2500
615,111.83 5.7500 0.2500
83,362.28 6.3750 0.2500
135,176.25 6.0000 0.2500
144,352.71 6.8750 0.2500
400,348.49 6.7500 0.2500
760,879.65 6.8750 0.2500
405,436.27 5.7500 0.2500
364,022.36 5.7500 0.2500
198,078.55 5.8750 0.2500
200,474.30 6.0000 0.2500
279,734.05 6.0000 0.2500
138,556.61 5.8750 0.2500
121,247.65 5.7500 0.2500
170,003.91 6.2500 0.2500
199,516.81 5.8750 0.2500
134,515.10 5.8750 0.2500
1,493,837.65 5.8750 0.2500
585,965.83 5.6250 0.2500
295,358.20 6.0000 0.2500
31,966.38 5.8750 0.2500
180,101.78 5.8750 0.2500
442,062.85 6.0000 0.2500
481,945.58 6.6250 0.2500
487,621.61 5.8750 0.2500
39,984.75 5.8750 0.2500
75,414.95 6.2500 0.2500
165,931.04 6.5000 0.2500
174,819.85 6.1250 0.2500
413,483.67 5.6250 0.2500
354,409.26 5.7500 0.2500
99,634.89 6.1250 0.2500
125,302.31 5.7500 0.2500
121,755.40 6.8750 0.2500
641,145.02 6.6250 0.2500
293,129.73 5.7500 0.2500
133,097.87 6.3750 0.2500
83,293.17 7.8750 0.2500
98,930.11 6.0000 0.2500
388,465.52 5.7500 0.2500
141,058.47 5.8750 0.2500
113,508.77 6.3750 0.2500
547,477.89 5.6250 0.2500
179,287.41 7.0000 0.2500
80,014.94 6.5000 0.2500
1,130,455.89 6.0000 0.2500
207,931.89 6.3750 0.2500
638,218.63 5.7500 0.2500
150,904.79 6.2500 0.2500
482,006.27 6.1250 0.2500
64,539.68 6.5000 0.2500
1,951,201.83 6.3750 0.2500
244,239.32 6.7500 0.2500
201,015.97 5.8750 0.2500
355,759.05 6.0000 0.2500
40,803.72 5.7500 0.2500
113,940.12 6.0000 0.2500
556,831.18 6.5000 0.2500
160,125.89 5.8750 0.2500
188,747.41 5.7500 0.2500
109,439.28 5.7500 0.2500
390,796.42 5.7500 0.2500
34,856.36 6.2500 0.2500
327,208.00 7.0000 0.2500
208,667.45 5.8750 0.2500
331,426.00 5.7500 0.2500
83,387.06 7.2500 0.2500
70,785.16 6.0000 0.2500
88,299.08 6.2500 0.2500
368,360.23 6.1250 0.2500
386,398.72 6.1250 0.2500
541,513.76 5.8750 0.2500
1,191,102.75 5.7500 0.2500
263,890.24 7.5000 0.2500
465,845.96 5.6250 0.2500
837,848.84 5.6250 0.2500
100,777.24 6.5000 0.2500
1,454,973.07 5.7500 0.2500
409,991.43 6.0000 0.2500
702,562.53 6.0000 0.2500
830,881.71 5.8750 0.2500
441,672.17 5.6250 0.2500
94,561.01 6.5000 0.2500
355,874.04 5.7500 0.2500
84,194.90 6.0000 0.2500
150,269.70 5.8750 0.2500
146,548.71 5.7500 0.2500
91,282.69 5.7500 0.2500
428,536.53 5.7500 0.2500
146,164.42 5.8750 0.2500
391,152.52 6.0000 0.2500
237,286.82 6.5000 0.2500
207,362.47 6.3750 0.2500
656,758.78 5.7500 0.2500
1,930,717.73 5.8750 0.2500
159,627.67 6.6250 0.2500
279,616.64 6.0000 0.2500
975,837.20 5.7500 0.2500
78,019.49 5.8750 0.2500
454,525.74 6.0000 0.2500
1,426,741.97 6.2500 0.2500
389,416.04 6.0000 0.2500
75,302.65 6.6250 0.2500
272,359.90 5.7500 0.2500
107,179.03 6.5000 0.2500
397,660.04 6.8750 0.2500
333,123.80 5.7500 0.2500
149,314.57 6.5000 0.2500
129,054.41 6.7500 0.2500
135,439.82 5.7500 0.2500
102,809.82 7.6250 0.2500
390,038.74 6.7500 0.2500
1,682,435.00 6.0000 0.2500
1,495,389.54 5.8750 0.2500
498,977.96 5.8750 0.2500
423,693.70 5.8750 0.2500
648,702.60 6.0000 0.2500
592,555.61 5.8750 0.2500
463,051.54 5.8750 0.2500
237,968.34 5.8750 0.2500
358,829.46 6.1250 0.2500
434,208.79 5.8750 0.2500
618,094.33 5.8750 0.2500
387,800.25 5.8750 0.2500
868,221.64 5.8750 0.2500
398,388.06 6.0000 0.2500
413,126.26 5.8750 0.2500
389,202.80 5.8750 0.2500
502,522.91 6.1250 0.2500
484,031.95 6.0000 0.2500
498,499.24 6.0000 0.2500
146,615.04 5.8750 0.2500
411,656.80 5.8750 0.2500
530,114.19 5.8750 0.2500
244,264.63 6.0000 0.2500
1,919,255.00 6.2500 0.2500
457,631.94 5.8750 0.2500
394,373.14 5.8750 0.2500
734,495.55 5.8750 0.2500
362,504.60 5.8750 0.2500
478,524.63 5.8750 0.2500
495,839.43 5.8750 0.2500
398,770.52 5.8750 0.2500
397,360.80 5.8750 0.2500
658,768.92 5.8750 0.2500
378,768.31 5.8750 0.2500
416,316.43 5.8750 0.2500
596,911.26 5.8750 0.2500
398,356.67 5.8750 0.2500
994,996.99 5.7500 0.2500
623,032.98 5.7500 0.2500
403,525.99 5.7500 0.2500
468,128.73 5.7500 0.2500
369,333.95 5.7500 0.2500
542,667.39 5.7500 0.2500
358,468.25 5.7500 0.2500
426,285.70 5.8750 0.2500
166,673.77 5.7500 0.2500
518,363.45 5.7500 0.2500
498,426.37 5.7500 0.2500
518,363.45 5.7500 0.2500
700,530.30 5.7500 0.2500
423,809.74 5.7500 0.2500
470,014.58 5.7500 0.2500
399,737.96 5.7500 0.2500
TR_FEE MSERV LPMI TOTAL_STRIP
------ ----- ---- -----------
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
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- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
- 0.0325 - 0.2825
CURRENT_NET_COUPON STATED_REM_TERM CALC_REM BALLOON
------------------ --------------- -------- -------
8.9675 305 305 No
9.5925 305 256 No
10.4675 308 300 No
7.8425 304 278 No
7.9675 305 297 No
8.8425 305 297 No
7.4675 305 293 No
8.5925 305 305 No
8.8425 305 305 No
8.5925 306 306 No
9.2175 305 305 No
8.0925 306 306 No
8.0925 305 304 No
9.2175 342 332 No
9.2175 306 300 No
8.7175 306 248 No
7.4675 306 306 No
9.0925 306 306 No
7.9675 306 306 No
7.4675 305 305 No
8.9675 306 304 No
8.2175 306 306 No
8.4675 306 306 No
8.2175 307 306 No
9.4675 307 305 No
8.4675 307 307 No
8.3425 307 307 No
9.4675 307 305 No
8.7175 306 306 No
8.4675 307 307 No
8.0925 308 308 No
9.0925 308 308 No
8.0925 308 308 No
8.4675 308 292 No
9.2175 308 308 No
9.0925 308 308 No
8.5925 308 307 No
8.5925 308 307 No
8.2175 308 308 No
8.3425 306 306 No
8.2175 305 305 No
8.8425 308 308 No
8.4675 308 305 No
7.5925 306 306 No
7.7175 307 304 No
8.0925 306 306 No
8.0925 306 306 No
7.8425 306 306 No
7.5925 306 306 No
7.5925 306 306 No
7.7175 305 251 No
8.5925 306 306 No
8.2175 306 301 No
8.3425 306 218 No
7.5925 306 298 No
8.4675 306 271 No
7.5925 306 251 No
7.5925 306 299 No
7.5925 306 306 No
8.2175 306 306 No
7.7175 307 307 No
7.5925 306 305 No
7.7175 306 304 No
7.5925 306 304 No
7.7175 306 304 No
7.3425 130 130 No
7.5925 309 300 No
8.7175 309 309 No
8.9675 308 308 No
9.2175 309 309 No
8.7175 308 307 No
9.2175 309 309 No
8.2175 309 310 No
8.7175 309 286 No
7.9675 308 299 No
8.3425 309 269 No
9.0925 309 309 No
8.9675 309 259 No
8.3425 308 303 No
8.5925 309 309 No
8.5925 308 304 No
8.5925 308 307 No
8.7175 309 309 No
9.0925 309 304 No
8.4675 309 309 No
6.5925 309 284 No
8.1775 308 300 No
8.5925 305 305 No
7.8075 307 307 No
8.5175 307 302 No
8.3925 307 307 No
8.1825 308 308 No
7.8075 305 305 No
7.6825 307 307 No
7.1825 307 267 No
8.7675 300 298 No
8.4675 309 308 No
8.7175 308 308 No
8.5925 308 308 No
7.9675 129 180 Yes
7.5925 310 310 No
7.5925 308 308 No
8.3425 308 298 No
8.4675 310 299 No
8.2175 129 180 Yes
7.2175 309 309 No
7.2175 309 306 No
8.2175 309 309 No
7.7175 309 309 No
7.7175 309 309 No
7.7175 309 309 No
7.9675 309 170 No
7.4675 309 292 No
7.7175 309 309 No
8.2175 309 310 No
8.2175 309 303 No
7.4675 309 309 No
8.2175 309 306 No
8.0925 309 309 No
8.2175 309 281 No
8.2175 309 309 No
7.0925 309 309 No
7.2175 311 311 No
7.4675 311 311 No
7.3425 311 311 No
9.0925 307 307 No
8.7175 309 307 No
8.9675 308 285 No
8.4675 307 301 No
8.9675 309 301 No
8.5925 308 308 No
8.7175 312 312 No
8.7175 308 308 No
8.3425 309 309 No
8.8425 308 305 No
8.4675 310 311 No
9.2175 309 309 No
9.2175 306 307 No
8.5925 306 306 No
8.8425 311 311 No
10.2175 311 311 No
9.2175 310 311 No
10.2175 310 286 No
9.7175 311 310 No
9.2175 311 308 No
9.2175 311 310 No
8.4675 132 180 Yes
9.4675 311 311 No
9.2175 312 312 No
7.1825 311 311 No
8.5925 311 265 No
8.9675 133 180 Yes
6.4675 313 292 No
9.2175 133 180 Yes
10.2175 312 313 No
10.2175 309 310 No
9.4675 307 307 No
7.2175 131 129 No
7.4675 133 124 No
7.9675 314 314 No
7.8625 311 311 No
7.6025 132 131 No
6.6175 311 311 No
8.5925 313 313 No
7.7175 314 314 No
8.3425 314 314 No
8.3425 314 287 No
9.0925 132 180 Yes
8.5425 133 180 Yes
8.7175 133 180 Yes
8.5925 133 180 Yes
8.2175 134 180 Yes
9.5925 131 180 Yes
9.5925 126 180 Yes
9.7175 127 180 Yes
6.7075 315 315 No
6.7075 314 206 No
7.8925 313 313 No
7.8425 313 313 No
7.7875 313 307 No
6.7275 311 312 No
7.7445 311 311 No
7.2175 315 315 No
6.2175 312 301 No
6.2175 310 310 No
7.2175 315 239 No
7.4675 315 315 No
7.7175 315 315 No
7.3425 314 279 No
7.5925 317 317 No
8.5925 315 309 No
7.2175 315 315 No
7.9675 314 314 No
7.3425 317 317 No
6.9675 314 252 No
6.7175 319 319 No
6.5925 319 319 No
8.2175 319 319 No
8.8425 319 319 No
7.3425 139 139 No
7.4675 319 306 No
7.0925 319 313 No
8.8425 319 319 No
7.2175 319 320 No
6.7175 320 318 No
6.7175 320 320 No
7.5925 320 320 No
6.9675 320 320 No
7.0925 320 320 No
6.7175 319 319 No
7.0925 319 319 No
7.2175 320 319 No
7.3425 319 319 No
6.9675 139 139 No
7.2175 319 317 No
7.2175 320 319 No
7.2175 140 98 No
7.2175 140 95 No
7.3425 318 318 No
7.2175 318 317 No
7.0925 80 80 No
7.0925 80 80 No
9.4675 318 316 No
8.3425 137 137 No
7.8425 318 259 No
8.8425 318 315 No
7.3425 318 316 No
9.6225 317 317 No
9.7175 318 318 No
9.0925 318 317 No
10.7175 317 316 No
7.2175 320 320 No
6.0925 320 320 No
7.0925 320 320 No
7.9675 320 316 No
6.7175 320 320 No
7.2175 320 320 No
8.5925 320 320 No
6.9675 320 320 No
6.3425 140 140 No
7.2175 321 319 No
7.0925 320 320 No
7.7175 320 319 No
9.4675 139 180 Yes
8.4675 319 319 No
8.9675 319 319 No
8.4675 320 321 No
8.9675 319 311 No
9.3425 319 319 No
8.8425 319 318 No
8.2175 319 308 No
9.9675 139 180 Yes
6.7175 319 316 No
9.7075 319 319 No
6.7175 320 320 No
7.2175 321 321 No
7.7175 320 320 No
7.4675 321 312 No
7.0925 321 320 No
7.2175 320 317 No
8.2175 319 318 No
7.0925 139 139 No
6.7175 318 310 No
7.4675 319 319 No
7.9675 318 318 No
7.5925 318 318 No
7.2175 320 320 No
7.9675 319 319 No
7.3425 319 319 No
6.5925 321 321 No
7.5925 201 201 No
7.0925 320 320 No
7.2175 320 320 No
7.5925 320 307 No
7.2175 320 320 No
6.9675 141 141 No
8.7175 320 320 No
7.3425 320 303 No
7.7175 321 320 No
6.7175 321 321 No
7.0925 321 321 No
7.4675 321 301 No
6.9675 321 319 No
7.3425 320 320 No
7.4675 319 319 No
8.2175 319 319 No
6.9675 320 318 No
6.3425 320 320 No
6.9675 319 319 No
6.5925 319 319 No
7.4675 319 319 No
6.7175 319 319 No
7.5925 319 319 No
6.2175 139 139 No
6.4675 319 116 No
7.0925 318 314 No
7.5925 320 320 No
6.7175 321 307 No
7.2175 321 321 No
7.4675 321 314 No
6.7175 321 310 No
6.7175 320 320 No
8.4675 320 321 No
8.2175 320 320 No
7.7175 320 316 No
7.7175 320 320 No
7.8425 320 320 No
8.0925 321 316 No
8.3425 318 319 No
8.0925 320 307 No
8.2175 318 318 No
7.9675 320 314 No
8.2175 318 318 No
7.3425 320 320 No
8.5925 318 319 No
7.0925 321 321 No
7.3425 322 320 No
6.9675 322 320 No
7.2175 140 140 No
7.4675 320 290 No
10.2175 320 316 No
9.2175 320 320 No
9.4675 320 320 No
8.2175 320 320 No
8.7175 320 319 No
7.7075 320 319 No
7.7075 320 320 No
9.7075 320 320 No
8.9675 320 321 No
8.7175 320 320 No
7.9675 320 303 No
8.4675 320 320 No
8.2175 140 180 Yes
8.2175 320 286 No
8.3425 320 320 No
7.5925 320 306 No
8.0925 320 320 No
6.7175 319 319 No
8.2175 319 319 No
7.7175 319 320 No
8.4675 319 319 No
8.5925 319 319 No
8.5925 319 152 No
7.5925 319 312 No
7.8425 320 320 No
8.2175 140 134 No
8.0925 320 142 No
7.2175 320 319 No
8.0925 320 319 No
8.2175 320 320 No
8.0925 320 320 No
8.7175 320 316 No
8.0925 320 320 No
8.0925 320 320 No
7.3425 320 320 No
7.9675 140 180 Yes
7.7175 140 180 Yes
8.3425 319 319 No
7.8425 320 292 No
7.7175 319 319 No
6.8825 318 318 No
7.8425 138 132 No
7.4725 318 318 No
7.8195 318 317 No
7.5075 318 318 No
8.0075 318 315 No
7.4305 319 319 No
7.6655 318 287 No
7.7175 318 315 No
7.3315 318 318 No
7.6365 318 317 No
7.5675 319 317 No
7.9675 318 318 No
7.1325 318 315 No
8.0075 318 318 No
7.6335 318 317 No
7.3315 318 318 No
7.3005 318 318 No
7.6325 318 318 No
7.5385 320 320 No
8.0925 320 320 No
7.0245 319 318 No
6.7185 319 319 No
7.4295 319 319 No
7.4705 319 314 No
6.6735 319 319 No
7.5925 320 150 No
7.2215 319 285 No
7.5015 319 319 No
7.7365 319 319 No
7.4605 319 319 No
7.9675 320 309 No
7.3895 320 320 No
7.5925 320 223 No
7.5815 320 320 No
7.2995 319 257 No
6.7175 266 257 No
7.0925 280 280 No
6.3925 272 272 No
7.4675 270 189 No
7.5175 273 212 No
7.5175 272 249 No
6.5925 90 48 No
6.6425 272 272 No
7.0175 271 222 No
7.3925 272 250 No
7.1425 272 272 No
6.2675 92 71 No
7.5175 272 259 No
6.9675 272 256 No
7.0925 272 272 No
6.3925 89 74 No
6.7675 272 271 No
6.7675 264 264 No
7.3425 151 151 No
7.8425 270 204 No
7.5175 272 226 No
7.1425 272 185 No
7.5925 271 271 No
7.8425 271 271 No
7.3475 272 264 No
7.5175 272 271 No
7.8425 272 272 No
7.5925 271 226 No
6.9675 271 271 No
7.0175 272 228 No
7.5925 272 265 No
7.7175 270 270 No
7.7175 271 252 No
7.5925 271 269 No
6.2175 87 87 No
7.0925 272 272 No
6.5925 313 313 No
6.9675 317 294 No
6.4675 276 268 No
7.2175 283 257 No
7.3425 301 39 No
6.3425 317 291 No
6.5925 187 186 No
6.7175 317 313 No
7.3425 314 301 No
6.4675 283 283 No
6.5925 318 315 No
6.3425 311 311 No
6.4675 312 311 No
10.4675 298 273 No
9.7775 298 292 No
8.6075 297 298 No
9.5925 299 299 No
8.8575 298 261 No
8.8425 299 282 No
11.3575 117 180 Yes
9.4675 297 295 No
9.9675 297 215 No
8.9675 297 295 No
9.3425 298 291 No
9.7175 297 177 No
9.4675 299 276 No
9.4675 298 297 No
8.3575 298 298 No
9.4675 298 183 No
8.7175 299 299 No
9.2175 127 127 No
12.3425 296 282 No
10.0925 298 295 No
8.7175 297 284 No
9.4675 298 284 No
8.5925 298 24 No
8.9675 298 280 No
9.5925 297 297 No
9.2175 299 101 No
8.9675 298 298 No
8.0925 297 291 No
8.4675 119 119 No
9.7325 297 265 No
10.0925 298 286 No
8.4825 297 297 No
9.7175 298 297 No
9.4675 296 296 No
9.5925 119 180 Yes
10.2175 298 293 No
9.0275 297 198 No
9.1525 297 297 No
9.4675 297 290 No
9.3425 297 294 No
10.0925 298 148 No
9.2175 296 293 No
8.8425 297 290 No
8.2175 299 299 No
9.2175 298 298 No
9.0925 298 261 No
8.7175 297 291 No
9.3425 299 298 No
8.7175 297 297 No
9.0925 297 272 No
9.2175 299 299 No
8.3425 298 287 No
8.2175 298 298 No
9.5925 298 292 No
10.0525 298 294 No
9.9425 298 298 No
8.9675 297 297 No
8.4675 297 294 No
10.3425 298 298 No
9.8575 298 288 No
8.0925 118 118 No
9.5925 298 255 No
8.3575 298 298 No
9.7175 296 296 No
8.3025 117 117 No
8.2175 297 291 No
9.3575 297 295 No
9.2175 298 298 No
8.5925 298 298 No
9.0925 300 300 No
10.2775 296 273 No
8.9675 301 301 No
9.2175 299 298 No
9.2175 301 301 No
6.6425 265 253 No
6.6425 265 250 No
7.3925 267 267 No
6.6425 265 221 No
6.6425 265 265 No
10.3425 298 296 No
9.8425 300 301 No
9.2175 300 299 No
11.0575 300 292 No
9.9825 299 299 No
8.5925 301 301 No
8.3425 299 209 No
9.5925 299 300 No
9.5925 300 294 No
10.0925 300 300 No
8.8425 299 218 No
9.4675 300 300 No
9.2325 300 299 No
10.0925 301 274 No
9.4675 300 298 No
10.0825 299 299 No
8.2175 301 289 No
8.5925 299 255 No
9.0925 299 297 No
8.3425 300 300 No
8.4675 300 300 No
9.0925 301 301 No
8.5925 300 299 No
9.4675 298 298 No
9.3425 300 297 No
9.0925 300 299 No
9.0925 300 300 No
9.7175 301 148 No
10.0675 300 299 No
8.9375 301 300 No
9.0925 299 297 No
9.3425 300 300 No
9.8125 301 297 No
5.4675 163 163 No
5.4675 164 155 No
5.4675 329 328 No
5.5925 329 328 No
5.8425 337 337 No
7.3425 321 321 No
5.5925 335 329 No
5.4675 334 334 No
7.4675 313 313 No
5.5925 335 319 No
5.4675 332 332 No
5.3425 355 354 No
5.4675 338 338 No
5.9675 339 339 No
6.5925 321 321 No
5.7175 133 130 No
5.4675 164 164 No
5.9675 329 321 No
5.9675 306 299 No
5.8425 329 326 No
5.7175 329 329 No
5.5925 337 337 No
5.7175 337 337 No
5.7175 336 326 No
5.7175 337 337 No
6.8425 303 212 No
5.5925 133 109 No
5.4675 334 334 No
5.7175 337 337 No
5.7175 133 133 No
5.4675 335 335 No
5.4675 333 333 No
6.0925 306 303 No
6.2175 335 335 No
5.4675 334 334 No
5.7175 329 306 No
5.4675 331 331 No
5.5925 329 329 No
5.4675 331 331 No
5.4675 336 336 No
6.4675 315 315 No
5.5925 341 349 No
5.8425 336 325 No
6.2175 312 306 No
6.2175 333 325 No
5.3425 341 341 No
5.7175 333 333 No
6.2175 312 312 No
5.5925 331 331 No
5.5925 331 331 No
5.8425 330 330 No
5.4675 165 165 No
6.8425 311 311 No
5.4675 154 151 No
5.7175 336 336 No
5.7175 338 338 No
5.7175 336 330 No
5.5925 168 164 No
5.5925 161 159 No
5.5925 336 336 No
6.4675 137 137 No
5.8425 334 334 No
5.5925 337 337 No
6.3425 312 312 No
5.4675 351 350 No
5.5925 332 315 No
5.7175 330 321 No
5.5925 133 133 No
5.7175 355 355 No
5.9675 345 345 No
5.4675 331 331 No
7.7175 299 299 No
8.0925 295 295 No
5.5925 342 342 No
5.5925 331 331 No
5.8425 338 338 No
8.0925 301 301 No
6.4675 312 312 No
5.4675 337 335 No
5.8425 344 335 No
5.5925 354 354 No
5.5925 337 337 No
5.5925 337 328 No
5.4675 337 337 No
6.9675 305 305 No
5.7175 337 337 No
5.7175 338 338 No
5.5925 336 335 No
5.7175 338 318 No
5.5925 342 342 No
5.5925 330 328 No
5.8425 348 348 No
6.9675 303 298 No
5.7175 326 326 No
5.4675 176 176 No
6.4675 311 310 No
6.8425 303 300 No
5.4675 338 338 No
5.7175 344 338 No
5.9675 354 354 No
5.9675 141 141 No
5.9675 321 321 No
5.7175 325 325 No
5.4675 337 328 No
5.9675 335 335 No
5.4675 335 296 No
5.4675 329 310 No
5.8425 340 340 No
5.7175 333 237 No
5.5925 226 183 No
5.7175 135 135 No
5.7175 328 328 No
5.7175 133 133 No
5.4675 350 345 No
5.4675 330 330 No
5.4675 338 338 No
5.5925 133 119 No
6.3425 309 308 No
5.8425 338 314 No
5.4675 338 338 No
5.4675 338 338 No
5.7175 333 333 No
5.3425 207 207 No
5.5925 346 346 No
6.2175 133 130 No
5.4675 350 350 No
5.4675 126 126 No
5.5925 342 342 No
5.4675 126 119 No
6.4675 128 128 No
5.5925 346 346 No
6.0925 125 66 No
6.4675 192 192 No
5.9675 323 323 No
7.3425 310 310 No
5.9675 334 286 No
7.7175 308 308 No
6.5925 319 319 No
5.4675 334 334 No
5.5925 134 116 No
5.7175 330 330 No
5.8425 133 114 No
6.5925 320 319 No
6.2175 320 307 No
5.4675 332 332 No
5.7175 134 134 No
6.9675 307 303 No
5.8425 345 345 No
6.5925 302 161 No
5.4675 143 143 No
5.4675 338 334 No
5.5925 353 353 No
5.4675 338 311 No
7.2175 316 309 No
6.2175 327 327 No
6.4675 308 297 No
6.2175 333 333 No
5.4675 343 343 No
5.7175 329 328 No
5.9675 323 311 No
6.9675 309 309 No
5.5925 331 316 No
5.4675 332 325 No
5.8425 133 133 No
6.4675 312 312 No
5.4675 341 341 No
5.3425 147 147 No
5.8425 323 323 No
7.0925 306 304 No
6.5925 310 310 No
6.4675 320 320 No
6.4675 312 312 No
5.4675 338 321 No
6.0925 325 311 No
5.7175 328 328 No
6.5925 320 320 No
6.4675 323 323 No
6.5925 318 310 No
5.4675 348 348 No
5.4675 147 128 No
5.5925 323 323 No
5.7175 134 134 No
5.7175 333 333 No
5.5925 313 311 No
5.4675 333 333 No
5.9675 327 327 No
5.5925 323 323 No
5.5925 133 133 No
5.5925 356 356 No
5.3425 341 340 No
5.7175 345 345 No
5.5925 320 320 No
5.5925 323 323 No
5.7175 339 339 No
6.3425 323 323 No
5.5925 337 337 No
5.5925 337 337 No
5.9675 337 337 No
6.2175 138 135 No
5.8425 334 333 No
5.3425 336 336 No
5.4675 334 334 No
5.8425 341 341 No
5.4675 152 152 No
6.5925 129 129 No
6.3425 342 342 No
5.4675 354 354 No
6.0925 313 313 No
7.5925 297 297 No
5.7175 336 336 No
5.4675 334 334 No
5.5925 133 129 No
6.0925 309 309 No
5.3425 340 340 No
6.7175 302 302 No
6.2175 134 128 No
5.7175 342 342 No
6.0925 313 309 No
5.4675 337 337 No
5.9675 314 308 No
5.8425 326 326 No
6.2175 139 139 No
6.0925 336 336 No
6.4675 335 335 No
5.5925 334 330 No
5.7175 336 336 No
5.4675 153 151 No
5.7175 133 127 No
6.2175 336 336 No
5.5925 338 338 No
5.4675 324 324 No
5.4675 125 115 No
5.4675 339 339 No
5.9675 340 330 No
6.7175 308 242 No
5.5925 331 330 No
5.4675 350 350 No
6.9675 136 134 No
5.7175 133 133 No
5.9675 341 341 No
5.8425 328 314 No
5.8425 328 328 No
5.5925 336 330 No
5.4675 353 353 No
7.2175 313 313 No
5.3425 334 334 No
5.3425 347 347 No
6.2175 335 333 No
5.4675 333 333 No
5.7175 337 337 No
5.7175 337 337 No
5.5925 339 339 No
5.3425 211 211 No
6.2175 313 280 No
5.4675 339 316 No
5.7175 330 330 No
5.5925 332 332 No
5.4675 339 339 No
5.4675 334 326 No
5.4675 330 329 No
5.5925 339 289 No
5.7175 330 329 No
6.2175 313 311 No
6.0925 325 325 No
5.4675 340 330 No
5.5925 334 329 No
6.3425 311 311 No
5.7175 327 327 No
5.4675 338 338 No
5.5925 337 337 No
5.7175 337 337 No
5.9675 218 218 No
5.7175 335 335 No
6.3425 321 321 No
5.4675 330 327 No
6.2175 136 134 No
6.5925 325 325 No
5.4675 339 339 No
6.2175 355 355 No
6.4675 325 132 No
5.4675 145 129 No
7.3425 303 261 No
6.4675 305 301 No
5.7175 357 357 No
5.5925 357 357 No
5.5925 358 358 No
5.5925 357 357 No
5.7175 358 358 No
5.5925 356 356 No
5.5925 358 358 No
5.5925 356 356 No
5.8425 358 357 No
5.5925 356 356 No
5.5925 357 357 No
5.5925 356 356 No
5.5925 358 358 No
5.7175 356 356 No
5.5925 357 357 No
5.5925 358 358 No
5.8425 357 357 No
5.7175 358 358 No
5.7175 357 357 No
5.5925 351 351 No
5.5925 358 358 No
5.5925 358 358 No
5.7175 357 357 No
5.9675 355 355 No
5.5925 355 355 No
5.5925 356 356 No
5.5925 358 358 No
5.5925 356 356 No
5.5925 357 357 No
5.5925 356 352 No
5.5925 357 357 No
5.5925 356 356 No
5.5925 357 357 No
5.5925 357 357 No
5.5925 357 357 No
5.5925 355 355 No
5.5925 356 356 No
5.4675 356 356 No
5.4675 357 357 No
5.4675 357 357 No
5.4675 357 357 No
5.4675 357 357 No
5.4675 357 348 No
5.4675 357 357 No
5.5925 357 357 No
5.4675 357 357 No
5.4675 357 357 No
5.4675 357 357 No
5.4675 357 357 No
5.4675 358 358 No
5.4675 356 356 No
5.4675 356 356 No
5.4675 357 357 No
FICO_SCORE PROPTYPE UNITS DOCTYPE
---------- -------- ----- -------
618 Single Family 1 No Income/No Asset
734 2-4 Family 4 Full/Alternative
577 PUD 1 No Income/No Asset
670 Single Family 1 Full/Alternative
509 Single Family 1 No Income/No Asset
698 Single Family 1 No Income/No Asset
722 Single Family 1 Full/Alternative
623 PUD 1 No Income/No Asset
672 Single Family 1 Full/Alternative
557 Single Family 1 No Income/No Asset
551 Single Family 1 No Income/No Asset
612 Single Family 1 Full/Alternative
678 2-4 Family 2 No Ratio
626 Single Family 1 No Income/No Asset
603 Single Family 1 Full/Alternative
809 Single Family 1 No Income/No Asset
725 Single Family 1 Stated Income
638 2-4 Family 4 Stated Income
661 Single Family 1 Stated Income
600 Single Family 1 Stated Income
660 Single Family 1 No Income/No Asset
766 Single Family 1 Full/Alternative
714 Single Family 1 Full/Alternative
497 Single Family 1 No Income/No Asset
561 2-4 Family 2 No Income/No Asset
690 Single Family 1 Stated Income
646 Single Family 1 Stated Income
530 Single Family 1 Full/Alternative
542 Single Family 1 No Income/No Asset
526 Single Family 1 Stated Income
620 PUD 1 Full/Alternative
750 Single Family 1 No Income/No Asset
693 Single Family 1 No Income/No Asset
622 Condominium 1 Stated Income
640 2-4 Family 3 Limited Doc
708 2-4 Family 3 Limited Doc
693 Condominium 1 Full/Alternative
767 2-4 Family 3 No Income/No Asset
550 2-4 Family 3 Limited Doc
705 2-4 Family 4 No Income/No Asset
590 2-4 Family 3 No Income/No Asset
600 Single Family 1 No Income/No Asset
566 Single Family 1 No Income/No Asset
671 Single Family 1 Stated Income
650 Single Family 1 Stated Income
694 PUD 1 Stated Income
719 PUD 1 Stated Income
699 2-4 Family 4 Full/Alternative
731 Single Family 1 No Income/No Asset
759 Condominium 1 Full/Alternative
665 2-4 Family 2 Stated Income
660 Single Family 1 Stated Income
670 Single Family 1 Stated Income
670 2-4 Family 2 Full/Alternative
620 2-4 Family 3 Full/Alternative
679 Condominium 1 Full/Alternative
685 Single Family 1 Stated Income
754 Single Family 1 No Income/No Asset
682 Single Family 1 Stated Income
690 Single Family 1 Stated Income
726 Single Family 1 Full/Alternative
745 2-4 Family 2 Stated Income
679 Single Family 1 Stated Income
728 Single Family 1 Full/Alternative
665 Single Family 1 No Ratio
667 Single Family 0 Full/Alternative
710 PUD 0 Stated Income
749 Single Family 1 Full/Alternative
648 2-4 Family 3 Full/Alternative
704 PUD 1 No Income/No Asset
593 Single Family 1 Stated/Stated
625 Single Family 1 Stated/Stated
768 Single Family 1 Stated Income
677 Single Family 1 No Income/No Asset
665 Single Family 1 Stated Income
636 Single Family 1 Full/Alternative
477 Single Family 1 No Income/No Asset
491 Single Family 1 No Income/No Asset
610 Single Family 1 No Income/No Asset
735 Single Family 1 No Income/No Asset
674 PUD 1 Stated Income
674 PUD 1 Stated Income
637 Single Family 1 No Income/No Asset
602 Single Family 1 No Income/No Asset
489 Single Family 1 No Income/No Asset
739 PUD 1 Full/Alternative
647 2-4 Family 4 No Income/No Asset
648 2-4 Family 2 No Income/No Asset
684 Condominium 1 No Income/No Asset
633 Single Family 1 No Income/No Asset
617 Single Family 1 No Income/No Asset
651 Single Family 1 No Income/No Asset
678 Single Family 1 No Income/No Asset
666 Single Family 1 No Income/No Asset
697 Single Family 1 No Income/No Asset
690 Condominium 1 No Income/No Asset
679 Single Family 1 Limited Doc
542 Single Family 1 Limited Doc
718 Single Family 1 Limited Doc
610 Single Family 1 Limited Doc
559 Single Family 1 Limited Doc
536 Single Family 1 Full/Alternative
692 Single Family 1 Full/Alternative
587 Single Family 1 Full/Alternative
543 2-4 Family 2 Limited Doc
722 2-4 Family 4 Full/Alternative
771 Single Family 1 Stated/Stated
710 Single Family 1 Stated/Stated
704 Single Family 1 Stated/Stated
704 Single Family 1 Stated/Stated
704 2-4 Family 2 Stated/Stated
794 Single Family 1 Full/Alternative
764 Single Family 1 Full/Alternative
704 Single Family 1 Stated/Stated
710 Single Family 1 Stated/Stated
710 Single Family 1 Stated/Stated
725 2-4 Family 3 Full/Alternative
683 2-4 Family 4 Full/Alternative
577 2-4 Family 4 Full/Alternative
728 Single Family 1 No Income/No Asset
710 Single Family 1 Stated/Stated
717 Condominium 1 Stated/Stated
503 Single Family 1 Stated Income
705 Single Family 1 Stated Income
767 Single Family 1 Stated Income
521 Single Family 0 Full/Alternative
605 Single Family 0 Full/Alternative
661 Single Family 0 Full/Alternative
589 Single Family 0 Full/Alternative
599 Single Family 0 Full/Alternative
628 Single Family 0 Full/Alternative
660 Single Family 0 Full/Alternative
645 Single Family 0 Full/Alternative
498 Single Family 0 Full/Alternative
555 Single Family 0 Full/Alternative
601 Single Family 0 Full/Alternative
769 PUD 0 Full/Alternative
708 Single Family 0 Full/Alternative
606 Single Family 0 Full/Alternative
664 Single Family 0 Full/Alternative
500 Single Family 1 No Income/No Asset
540 Single Family 1 Stated/Stated
684 2-4 Family 2 Stated/Stated
515 Condominium 1 No Income/No Asset
651 Single Family 1 Stated/Stated
616 Single Family 1 Stated Income
772 Single Family 1 No Ratio
575 Single Family 1 Stated Income
671 Single Family 1 No Ratio
649 Single Family 1 No Income/No Asset
0 Condominium 1 Full/Alternative
613 2-4 Family 3 No Ratio
713 Single Family 1 Stated Income
516 Single Family 1 No Ratio
503 Single Family 1 No Income/No Asset
420 Single Family 1 No Income/No Asset
622 Single Family 1 No Income/No Asset
616 Single Family 1 No Income/No Asset
621 Manufactured Home 1 No Income/No Asset
466 Manufactured Home 1 Full/Alternative
582 Single Family 1 No Income/No Asset
642 Manufactured Home 1 No Income/No Asset
780 Manufactured Home 1 No Income/No Asset
709 Single Family 1 Stated Income
786 Manufactured Home 1 No Income/No Asset
579 Manufactured Home 1 Stated Income
775 Single Family 1 Stated Income
729 Single Family 1 Stated/Stated
703 Single Family 1 Stated/Stated
685 2-4 Family 2 No Ratio
603 Single Family 1 No Ratio
595 Single Family 1 Stated/Stated
611 Condominium 1 Full/Alternative
644 Single Family 1 Full/Alternative
667 Single Family 1 Stated/Stated
695 Single Family 1 Stated/Stated
746 Single Family 1 Stated/Stated
612 Manufactured Home 1 No Income/No Asset
642 Manufactured Home 1 No Income/No Asset
597 Manufactured Home 1 No Income/No Asset
511 Single Family 1 No Income/No Asset
663 PUD 1 No Income/No Asset
784 Single Family 1 No Income/No Asset
748 Single Family 1 No Income/No Asset
703 Single Family 1 Full/Alternative
755 Condominium 1 No Ratio
687 Single Family 1 Stated Income
758 Single Family 1 Stated Income
726 Single Family 1 Stated Income
542 Single Family 1 Full/Alternative
658 PUD 1 No Income/No Asset
686 PUD 1 No Income/No Asset
596 Single Family 1 No Ratio
681 Single Family 1 Stated Income
737 Single Family 1 Full/Alternative
634 Single Family 1 Full/Alternative
694 Single Family 1 Stated Income
619 Single Family 1 Stated Income
777 Single Family 1 No Ratio
676 Single Family 1 Stated Income
466 Single Family 1 Full/Alternative
631 Single Family 1 Stated Income
730 Single Family 1 No Ratio
770 Condominium 1 No Documentation
684 Single Family 1 Full/Alternative
0 PUD 1 Stated Income
564 Single Family 1 Stated Income
623 Single Family 1 Full/Alternative
577 Single Family 1 Full/Alternative
631 Single Family 1 Stated Income
789 Single Family 1 No Income/No Asset
712 Single Family 1 Full/Alternative
756 2-4 Family 4 Full/Alternative
623 Single Family 1 Full/Alternative
680 Single Family 1 Full/Alternative
710 Single Family 1 Full/Alternative
750 2-4 Family 2 Stated Income
750 2-4 Family 2 Stated Income
0 PUD 1 Stated Income
0 PUD 1 Full/Alternative
719 Single Family 1 Stated Income
719 Single Family 1 Stated Income
687 Single Family 1 Stated/Stated
592 Single Family 1 No Income/No Asset
541 Single Family 1 Stated Income
478 Single Family 1 Stated/Stated
789 2-4 Family 4 Full/Alternative
644 Single Family 1 Stated Income
579 Single Family 1 No Income/No Asset
453 Single Family 1 Stated/Stated
574 2-4 Family 2 Stated/Stated
777 Single Family 1 Full/Alternative
728 Single Family 1 Full/Alternative
542 Single Family 1 Full/Alternative
746 Condominium 1 No Documentation
548 Single Family 1 Full/Alternative
697 Single Family 1 Full/Alternative
665 Single Family 1 Stated/Stated
664 Single Family 1 Stated Income
679 Single Family 1 Full/Alternative
684 Single Family 1 Full/Alternative
732 Single Family 1 Stated Income
689 Single Family 1 Stated/Stated
664 2-4 Family 3 No Ratio
671 Single Family 1 No Ratio
684 Single Family 1 Full/Alternative
762 2-4 Family 3 No Ratio
628 Single Family 1 Stated/Stated
684 Single Family 1 No Ratio
690 Single Family 1 No Income/No Asset
660 Single Family 1 No Ratio
775 Single Family 1 No Ratio
728 Single Family 1 Full/Alternative
707 2-4 Family 2 Stated Income
0 PUD 1 Full/Alternative
0 PUD 1 Full/Alternative
670 PUD 1 Stated Income
748 PUD 1 No Documentation
636 Single Family 1 Full/Alternative
570 Single Family 1 Stated Income
578 Manufactured Home 1 Stated Income
750 Single Family 1 No Ratio
685 PUD 1 Full/Alternative
631 Single Family 1 Stated Income
788 Single Family 1 No Income/No Asset
772 Single Family 1 Stated Income
735 Single Family 1 Stated Income
662 Single Family 1 No Ratio
748 Single Family 1 No Income/No Asset
743 PUD 1 Full/Alternative
604 Single Family 1 Full/Alternative
654 Single Family 1 No Ratio
652 Single Family 1 No Ratio
758 Single Family 1 No Income/No Asset
588 Single Family 1 No Income/No Asset
691 Single Family 1 Full/Alternative
758 Single Family 1 No Ratio
775 Single Family 1 No Documentation
629 2-4 Family 3 Full/Alternative
789 Condominium 1 Full/Alternative
662 Single Family 1 Stated Income
783 Single Family 1 No Documentation
635 Single Family 1 Full/Alternative
781 2-4 Family 2 Full/Alternative
657 Condominium 1 No Income/No Asset
600 Single Family 1 Stated Income
720 2-4 Family 2 Stated Income
678 Single Family 1 Stated Income
679 Single Family 1 Stated Income
760 Condominium 1 Stated Income
676 Single Family 1 Stated Income
755 2-4 Family 2 Full/Alternative
703 Single Family 1 No Income/No Asset
675 Single Family 1 Stated Income
721 Single Family 1 Stated Income
676 2-4 Family 3 Stated Income
655 2-4 Family 4 Full/Alternative
729 Single Family 1 Full/Alternative
679 Single Family 1 No Ratio
574 2-4 Family 4 No Ratio
718 Single Family 1 Stated Income
751 Single Family 1 No Ratio
691 Single Family 1 Full/Alternative
693 PUD 1 Full/Alternative
591 PUD 1 Full/Alternative
591 PUD 1 Full/Alternative
611 Single Family 1 Stated/Stated
725 Single Family 1 Stated/Stated
576 Single Family 1 No Income/No Asset
675 Single Family 1 Full/Alternative
691 Manufactured Home 1 No Income/No Asset
683 Single Family 1 Stated/Stated
662 Manufactured Home 1 No Income/No Asset
547 Single Family 1 Stated/Stated
745 Single Family 1 No Income/No Asset
691 Single Family 1 Stated Income
614 Single Family 1 Stated Income
617 Single Family 1 No Documentation
683 Single Family 1 No Ratio
701 Single Family 1 No Income/No Asset
629 Single Family 1 Stated Income
710 Single Family 1 Stated Income
623 Single Family 1 No Ratio
711 2-4 Family 2 No Ratio
684 Single Family 1 Stated Income
764 Single Family 1 No Income/No Asset
588 Single Family 1 No Income/No Asset
673 Single Family 1 Stated Income
655 Single Family 1 Full/Alternative
787 Single Family 1 Full/Alternative
589 PUD 1 Stated Income
789 Single Family 1 No Income/No Asset
756 2-4 Family 2 No Income/No Asset
632 Condominium 1 No Income/No Asset
673 PUD 1 No Income/No Asset
633 PUD 1 No Income/No Asset
514 Single Family 1 No Income/No Asset
616 Single Family 1 Stated Income
708 Single Family 1 No Income/No Asset
637 Single Family 1 No Income/No Asset
480 Single Family 1 No Income/No Asset
619 Single Family 1 No Income/No Asset
648 Condominium 1 No Income/No Asset
704 Single Family 1 No Income/No Asset
728 Single Family 1 Stated Income
651 Single Family 1 No Income/No Asset
602 PUD 1 No Income/No Asset
662 Single Family 1 Stated Income
651 Single Family 1 No Income/No Asset
585 Single Family 1 No Income/No Asset
552 Single Family 1 No Income/No Asset
501 Single Family 1 No Income/No Asset
548 Single Family 1 No Ratio
749 Single Family 1 No Income/No Asset
740 Single Family 1 No Income/No Asset
699 Single Family 1 No Income/No Asset
678 Condominium 1 No Income/No Asset
685 Single Family 1 No Income/No Asset
669 PUD 1 Stated Income
719 Single Family 1 No Income/No Asset
527 Single Family 1 No Income/No Asset
741 Single Family 1 No Income/No Asset
754 Single Family 1 No Income/No Asset
626 Single Family 1 No Income/No Asset
753 Single Family 1 No Income/No Asset
778 Single Family 1 No Income/No Asset
671 Single Family 1 No Income/No Asset
622 Condominium 1 No Income/No Asset
650 Single Family 1 No Income/No Asset
769 PUD 1 No Income/No Asset
709 Single Family 1 No Income/No Asset
599 Single Family 1 No Income/No Asset
630 Single Family 1 No Income/No Asset
780 Single Family 1 No Income/No Asset
598 2-4 Family 2 No Income/No Asset
699 Single Family 1 No Income/No Asset
621 Single Family 1 No Income/No Asset
629 PUD 1 No Income/No Asset
699 Single Family 1 No Income/No Asset
774 Single Family 1 No Income/No Asset
648 Single Family 1 No Income/No Asset
649 Single Family 1 No Income/No Asset
694 Single Family 1 No Income/No Asset
540 Single Family 1 No Income/No Asset
739 Single Family 1 No Income/No Asset
699 Single Family 1 No Income/No Asset
655 Single Family 1 No Income/No Asset
667 Single Family 1 No Income/No Asset
510 Single Family 1 No Income/No Asset
757 Single Family 1 No Income/No Asset
706 Single Family 1 No Income/No Asset
540 Single Family 1 No Income/No Asset
723 Single Family 1 No Income/No Asset
700 Condominium 1 No Income/No Asset
665 2-4 Family 2 No Income/No Asset
722 Single Family 1 No Income/No Asset
559 PUD 1 Full/Alternative
635 Single Family 0 Stated Income
660 2-4 Family 2 Full/Alternative
640 Condominium 1 Limited Doc
650 Condominium 1 Limited Doc
601 Single Family 1 Limited Doc
670 PUD 1 Full/Alternative
620 Single Family 1 Full/Alternative
680 Single Family 1 Full/Alternative
698 PUD 1 Full/Alternative
680 Single Family 1 Full/Alternative
671 Single Family 1 Full/Alternative
648 Single Family 1 Limited Doc
631 Single Family 1 Full/Alternative
680 Single Family 1 Full/Alternative
695 PUD 1 Full/Alternative
687 Single Family 1 Full/Alternative
625 PUD 1 Full/Alternative
673 Single Family 1 Limited Doc
605 Single Family 1 Limited Doc
691 Single Family 1 Full/Alternative
705 Single Family 1 Limited Doc
678 Condominium 1 Limited Doc
679 Single Family 1 Limited Doc
670 Single Family 1 Limited Doc
652 Single Family 1 Limited Doc
650 Single Family 1 Limited Doc
638 Single Family 1 Limited Doc
641 Single Family 1 Full/Alternative
635 Single Family 1 Full/Alternative
605 Condominium 1 Limited Doc
652 Single Family 1 Limited Doc
639 Single Family 1 Limited Doc
625 Condominium 1 Limited Doc
625 Single Family 1 Full/Alternative
661 Single Family 1 Full/Alternative
765 Single Family 1 Full/Alternative
625 Single Family 1 No Income/No Asset
764 Single Family 1 Stated Income
598 Single Family 1 Full/Alternative
668 PUD 1 Full/Alternative
752 Single Family 1 Limited Doc
758 Single Family 1 Full/Alternative
595 Single Family 1 Full/Alternative
628 Single Family 1 Stated Income
700 Single Family 1 Stated Income
698 Single Family 1 Full/Alternative
675 Single Family 1 Limited Doc
629 Single Family 1 Full/Alternative
610 Single Family 0 No Income/No Asset
711 Single Family 0 No Income/No Asset
796 Single Family 0 No Income/No Asset
514 Single Family 0 No Income/No Asset
714 Single Family 0 No Income/No Asset
0 Single Family 0 Full/Alternative
540 Single Family 0 Stated Income
658 Single Family 0 Stated Income
685 PUD 0 No Income/No Asset
755 Single Family 0 Stated Income
608 Single Family 0 No Income/No Asset
702 Single Family 0 No Income/No Asset
611 Condominium 0 No Income/No Asset
651 2-4 Family 0 Stated Income
527 Single Family 0 Stated Income
644 Single Family 0 No Income/No Asset
738 Condominium 0 No Income/No Asset
600 Manufactured Home 0 Full/Alternative
691 Single Family 0 Stated Income
518 Single Family 0 No Income/No Asset
571 Single Family 0 Stated Income
516 Single Family 0 No Income/No Asset
694 Condominium 0 No Income/No Asset
693 Single Family 0 No Income/No Asset
534 Single Family 0 No Income/No Asset
699 Single Family 0 No Income/No Asset
577 Single Family 0 No Income/No Asset
779 Single Family 0 Stated Income
571 Single Family 0 No Documentation
670 Single Family 0 No Income/No Asset
697 Single Family 0 Stated Income
677 Condominium 0 No Income/No Asset
723 Single Family 0 Stated Income
490 Single Family 0 No Income/No Asset
613 Single Family 0 No Income/No Asset
550 Single Family 0 No Income/No Asset
730 Single Family 0 Stated Income
668 Single Family 0 No Income/No Asset
514 Single Family 0 Full/Alternative
574 Single Family 0 No Income/No Asset
743 Single Family 0 Stated Income
575 Single Family 0 No Income/No Asset
761 Single Family 0 Stated Income
708 Single Family 0 No Income/No Asset
587 Single Family 0 No Income/No Asset
656 Single Family 0 Stated Income
587 Single Family 0 No Income/No Asset
504 Condominium 0 Stated Income
702 Single Family 0 Stated/Stated
659 Single Family 0 Full/Alternative
526 Single Family 0 No Income/No Asset
546 Single Family 0 Stated Income
670 Single Family 0 Stated Income
665 Single Family 0 Stated Income
569 Single Family 0 No Documentation
603 Single Family 0 No Income/No Asset
656 Single Family 0 No Income/No Asset
459 PUD 0 Stated Income
598 Single Family 0 No Income/No Asset
555 Single Family 0 No Income/No Asset
575 Single Family 0 Stated Income
576 Single Family 0 Stated Income
787 Condominium 0 Stated Income
741 Single Family 0 Stated Income
575 Single Family 0 Stated Income
728 Single Family 0 Stated Income
649 Single Family 0 No Income/No Asset
605 Single Family 0 No Income/No Asset
698 Single Family 0 No Income/No Asset
561 Single Family 0 No Income/No Asset
760 Single Family 0 No Income/No Asset
0 Single Family 1 Stated Income
0 Condominium 1 Stated Income
0 Single Family 1 Stated Income
750 PUD 1 Full/Alternative
770 PUD 1 Full/Alternative
0 Single Family 1 Full/Alternative
629 PUD 1 Full/Alternative
663 Single Family 1 Full/Alternative
528 Single Family 0 Stated Income
747 Single Family 0 No Income/No Asset
667 Single Family 0 Stated Income
705 2-4 Family 0 Full/Alternative
523 Single Family 0 No Income/No Asset
723 Single Family 0 No Income/No Asset
767 Single Family 0 Stated Income
631 Single Family 0 Stated Income
510 Single Family 0 No Income/No Asset
638 Single Family 0 No Income/No Asset
0 PUD 0 Full/Alternative
521 Single Family 0 Stated Income
521 Single Family 0 Stated Income
516 Single Family 0 No Income/No Asset
667 Condominium 0 Full/Alternative
689 Single Family 0 No Income/No Asset
612 PUD 0 Stated Income
677 Single Family 0 Stated Income
682 Single Family 0 No Income/No Asset
515 Single Family 0 Stated Income
638 Single Family 0 Stated Income
544 Single Family 0 No Income/No Asset
695 Single Family 0 Stated Income
569 Single Family 0 Stated Income
530 Single Family 0 Stated Income
696 Single Family 0 Full/Alternative
730 Single Family 0 No Income/No Asset
466 Single Family 0 No Income/No Asset
468 Condominium 0 No Income/No Asset
771 Single Family 0 Stated Income
561 Single Family 0 Full/Alternative
496 Single Family 0 No Income/No Asset
535 Single Family 0 No Income/No Asset
735 Single Family 1 Full/Alternative
739 Single Family 1 Limited Doc
735 Single Family 1 Full/Alternative
701 Single Family 1 Limited Doc
680 Single Family 1 Full/Alternative
778 Condominium 1 Full/Alternative
765 Condominium 1 Full/Alternative
772 Single Family 1 Full/Alternative
666 Single Family 1 Full/Alternative
784 Single Family 1 Full/Alternative
716 Single Family 1 Full/Alternative
777 Single Family 1 Full/Alternative
769 Single Family 1 Full/Alternative
609 CO-OP 1 Full/Alternative
782 Single Family 1 Full/Alternative
789 Single Family 1 Full/Alternative
657 Condominium 1 Full/Alternative
701 2-4 Family 2 Full/Alternative
610 Single Family 1 Full/Alternative
770 Single Family 1 Stated Income
775 Single Family 1 Full/Alternative
702 Single Family 1 Full/Alternative
764 Single Family 1 Full/Alternative
791 Condominium 1 Full/Alternative
762 Single Family 1 Stated Income
737 Single Family 1 Full/Alternative
797 Single Family 1 Full/Alternative
745 Single Family 1 Full/Alternative
784 Single Family 1 Full/Alternative
670 Single Family 1 Full/Alternative
763 Single Family 1 Full/Alternative
766 Condominium 1 Full/Alternative
767 PUD 1 Full/Alternative
783 Single Family 1 Full/Alternative
681 Single Family 1 Full/Alternative
786 Single Family 1 Stated Income
764 Single Family 1 Full/Alternative
744 Single Family 1 Full/Alternative
734 Single Family 1 Full/Alternative
681 Single Family 1 Full/Alternative
716 Single Family 1 Full/Alternative
770 PUD 1 Full/Alternative
789 Single Family 1 Full/Alternative
777 Condominium 1 Full/Alternative
673 Single Family 1 Stated Income
746 PUD 1 Full/Alternative
764 Single Family 1 Full/Alternative
680 Single Family 1 Full/Alternative
765 Single Family 1 Stated/Stated
644 2-4 Family 4 Full/Alternative
651 Single Family 1 Full/Alternative
749 Single Family 1 Full/Alternative
677 Single Family 1 Full/Alternative
666 Single Family 1 Full/Alternative
717 Single Family 1 Full/Alternative
778 Single Family 1 Full/Alternative
771 Single Family 1 Stated Income
643 Single Family 1 Full/Alternative
690 Hi-Rise Condo 1 Stated Income
753 Single Family 1 Full/Alternative
789 PUD 1 Full/Alternative
707 Single Family 1 Full/Alternative
731 Single Family 1 Stated Income
784 Single Family 1 Full/Alternative
615 Single Family 1 Full/Alternative
795 Condominium 1 Full/Alternative
726 Single Family 1 Full/Alternative
660 Single Family 1 Full/Alternative
713 Single Family 1 Full/Alternative
713 Single Family 1 Full/Alternative
753 Single Family 1 Stated Income
793 Single Family 1 Full/Alternative
693 Single Family 1 Full/Alternative
761 Single Family 1 Full/Alternative
631 Single Family 1 Full/Alternative
771 Single Family 1 Full/Alternative
761 Condominium 1 Full/Alternative
697 Single Family 1 Full/Alternative
629 Condominium 1 Full/Alternative
802 Single Family 1 Full/Alternative
799 Single Family 1 Full/Alternative
767 Single Family 1 Full/Alternative
730 Single Family 1 Full/Alternative
757 Single Family 1 Stated Income
666 Single Family 1 Full/Alternative
599 Single Family 1 Full/Alternative
703 Single Family 1 Full/Alternative
765 Single Family 1 Full/Alternative
700 Single Family 1 Full/Alternative
659 Single Family 1 Full/Alternative
742 Townhouse 1 Stated Income
647 Single Family 1 Full/Alternative
798 Single Family 1 Full/Alternative
808 Single Family 1 Full/Alternative
609 Single Family 1 Full/Alternative
791 2-4 Family 2 Limited Doc
732 Condominium 1 Full/Alternative
739 Single Family 1 Full/Alternative
689 Single Family 1 Full/Alternative
623 Condominium 1 Full/Alternative
775 Single Family 1 Full/Alternative
666 Single Family 1 Full/Alternative
753 Hi-Rise Condo 1 Full/Alternative
717 Single Family 1 Full/Alternative
729 Single Family 1 Full/Alternative
659 Single Family 1 Full/Alternative
753 Single Family 1 Stated Income
783 Single Family 1 Full/Alternative
801 Single Family 1 Stated Income
682 Single Family 1 Full/Alternative
691 Single Family 1 Full/Alternative
780 Single Family 1 Full/Alternative
793 Condominium 1 Full/Alternative
621 Single Family 1 Full/Alternative
777 Single Family 1 Stated Income
684 Single Family 1 Full/Alternative
719 Single Family 1 Full/Alternative
687 Condominium 1 Full/Alternative
723 Single Family 1 Full/Alternative
667 Single Family 1 Full/Alternative
795 Single Family 1 Full/Alternative
695 Single Family 1 Full/Alternative
645 Single Family 1 Full/Alternative
661 Single Family 1 Limited Doc
649 Condominium 1 Full/Alternative
657 Condominium 1 Full/Alternative
768 Condominium 1 Full/Alternative
742 Single Family 1 Full/Alternative
786 Condominium 1 Full/Alternative
732 Single Family 1 Stated Income
657 Single Family 1 Full/Alternative
783 Single Family 1 Full/Alternative
643 Single Family 1 Full/Alternative
794 Single Family 1 Full/Alternative
690 Single Family 1 Stated Income
752 Condominium 1 Stated Income
736 Single Family 1 No Documentation
724 PUD 1 Full/Alternative
799 Single Family 1 Full/Alternative
781 Single Family 1 Full/Alternative
746 2-4 Family 2 Full/Alternative
730 Single Family 1 Full/Alternative
740 Single Family 1 Full/Alternative
798 Single Family 1 Full/Alternative
783 Single Family 1 Full/Alternative
771 PUD 1 Full/Alternative
676 Single Family 1 Full/Alternative
656 2-4 Family 2 Full/Alternative
802 Single Family 1 Full/Alternative
765 Single Family 1 Full/Alternative
657 PUD 1 Full/Alternative
618 Single Family 1 Full/Alternative
685 Single Family 1 Full/Alternative
698 Single Family 1 Stated Income
783 Single Family 1 Full/Alternative
718 Single Family 1 Full/Alternative
741 2-4 Family 2 Stated Income
739 Single Family 1 Full/Alternative
655 Single Family 1 Full/Alternative
728 Single Family 1 Full/Alternative
796 Condominium 1 Stated Income
788 Single Family 1 Stated Income
784 Single Family 1 Full/Alternative
793 Single Family 1 Full/Alternative
780 Single Family 1 Full/Alternative
804 Single Family 1 Full/Alternative
747 Single Family 1 Full/Alternative
737 Single Family 1 Full/Alternative
690 Single Family 1 Full/Alternative
730 PUD 1 Full/Alternative
645 Single Family 1 Full/Alternative
719 Single Family 1 Full/Alternative
760 Single Family 1 Full/Alternative
653 Single Family 1 Full/Alternative
742 Single Family 1 Full/Alternative
780 Hi-Rise Condo 1 Full/Alternative
726 Single Family 1 Stated Income
711 Single Family 1 Full/Alternative
619 PUD 1 Full/Alternative
784 Single Family 1 Full/Alternative
727 Single Family 1 Full/Alternative
736 Condominium 1 Full/Alternative
611 Single Family 1 Full/Alternative
738 Single Family 1 Full/Alternative
737 Single Family 1 Full/Alternative
759 Single Family 1 Full/Alternative
727 Single Family 1 Full/Alternative
791 Single Family 1 Full/Alternative
767 Single Family 1 Full/Alternative
669 Single Family 1 Full/Alternative
644 Single Family 1 Full/Alternative
652 Single Family 1 Full/Alternative
727 Single Family 1 Full/Alternative
664 Single Family 1 Full/Alternative
698 Single Family 1 Full/Alternative
691 Single Family 1 Full/Alternative
805 Condominium 1 Full/Alternative
733 Single Family 1 Full/Alternative
805 Single Family 1 Full/Alternative
699 Single Family 1 Full/Alternative
712 Single Family 1 Full/Alternative
720 Single Family 1 Stated Income
706 Single Family 1 Full/Alternative
713 Single Family 1 Stated Income
702 Single Family 1 Full/Alternative
712 Condominium 1 Stated Income
617 Single Family 1 Full/Alternative
744 Single Family 1 Stated Income
610 Single Family 1 Full/Alternative
632 Condominium 1 Full/Alternative
781 Condominium 1 Stated Income
804 Single Family 1 Full/Alternative
790 PUD 1 Stated Income
665 2-4 Family 2 Full/Alternative
689 Condominium 1 Full/Alternative
675 Single Family 1 Full/Alternative
752 Single Family 1 Full/Alternative
778 2-4 Family 2 Full/Alternative
692 Single Family 1 Full/Alternative
783 Single Family 1 Stated Income
666 Single Family 1 Full/Alternative
712 Single Family 1 Full/Alternative
637 Single Family 1 Full/Alternative
702 Single Family 1 Full/Alternative
716 Single Family 1 Full/Alternative
783 Single Family 1 Full/Alternative
793 Condominium 1 Full/Alternative
805 Single Family 1 Full/Alternative
708 Single Family 1 Full/Alternative
703 Hi-Rise Condo 1 Full/Alternative
803 Single Family 1 Full/Alternative
779 PUD 1 Full/Alternative
695 Hi-Rise Condo 1 Full/Alternative
783 Single Family 1 Full/Alternative
746 Single Family 1 Full/Alternative
719 Single Family 1 Full/Alternative
669 Condominium 1 Full/Alternative
603 Single Family 1 Full/Alternative
774 Single Family 1 Full/Alternative
642 Single Family 1 Full/Alternative
635 Single Family 1 Full/Alternative
737 Single Family 1 Full/Alternative
779 Single Family 1 Full/Alternative
798 Single Family 1 Full/Alternative
673 Single Family 1 Full/Alternative
639 Single Family 1 Full/Alternative
690 Single Family 1 Full/Alternative
682 Single Family 1 Full/Alternative
714 Single Family 1 Full/Alternative
738 Single Family 1 Full/Alternative
782 Single Family 1 Full/Alternative
773 Single Family 1 Full/Alternative
715 Single Family 1 Full/Alternative
801 Single Family 1 Full/Alternative
766 PUD 1 Full/Alternative
772 Single Family 1 Full/Alternative
690 Single Family 1 Full/Alternative
808 Condominium 1 Full/Alternative
792 Single Family 1 Full/Alternative
756 Single Family 1 Limited Doc
708 Single Family 1 Full/Alternative
676 Single Family 1 Full/Alternative
767 PUD 1 Full/Alternative
630 PUD 1 Full/Alternative
666 Single Family 1 Full/Alternative
765 Condominium 1 Full/Alternative
785 Single Family 1 Full/Alternative
639 Single Family 1 Full/Alternative
663 Single Family 1 Full/Alternative
741 2-4 Family 2 Full/Alternative
718 Single Family 1 Full/Alternative
807 Single Family 1 Full/Alternative
772 Single Family 1 Stated Income
712 Condominium 1 Full/Alternative
707 Single Family 1 Full/Alternative
786 Single Family 1 Full/Alternative
690 Single Family 1 Full/Alternative
723 Single Family 1 Full/Alternative
770 Single Family 1 Stated Income
715 Single Family 1 Limited Doc
667 Single Family 1 Full/Alternative
712 Single Family 1 Stated Income
740 Single Family 1 Full/Alternative
755 Single Family 1 Full/Alternative
793 Condominium 1 Full/Alternative
740 2-4 Family 2 Full/Alternative
802 Single Family 1 Full/Alternative
760 Single Family 1 Full/Alternative
777 Single Family 1 Full/Alternative
758 Single Family 1 Full/Alternative
747 Single Family 1 Full/Alternative
672 Single Family 1 Stated Income
772 Single Family 1 Stated Income
759 Single Family 1 Full/Alternative
729 Single Family 1 Full/Alternative
746 2-4 Family 2 Stated Income
663 Single Family 1 Full/Alternative
790 Single Family 1 Full/Alternative
754 Single Family 1 Full/Alternative
786 Single Family 1 Stated Income
622 Single Family 1 Full/Alternative
769 Single Family 1 Stated Income
734 Condominium 1 Full/Alternative
732 PUD 1 Full/Alternative
729 PUD 1 Stated Income
746 Condominium 1 Full/Alternative
742 Single Family 1 Full/Alternative
681 2-4 Family 2 Full/Alternative
655 Single Family 1 Full/Alternative
716 Single Family 1 Full/Alternative
635 Single Family 1 Full/Alternative
646 Single Family 1 Full/Alternative
725 Single Family 1 Full/Alternative
721 Condominium 1 Stated Income
697 Single Family 1 Full/Alternative
653 Single Family 1 Full/Alternative
693 Single Family 1 Full/Alternative
681 Single Family 1 Stated Income
721 Single Family 1 Full/Alternative
712 Condominium 1 Full/Alternative
631 Single Family 1 Full/Alternative
662 Single Family 1 Stated Income
795 PUD 1 Full/Alternative
661 Single Family 1 Full/Alternative
613 Single Family 1 Full/Alternative
794 Single Family 1 Full/Alternative
725 Condominium 1 Full/Alternative
648 Single Family 1 Full/Alternative
768 Single Family 1 Full/Alternative
764 Single Family 1 Full/Alternative
652 Single Family 1 Stated/Stated
765 Single Family 1 Full/Alternative
752 Single Family 1 Full/Alternative
766 PUD 1 Full/Alternative
723 Single Family 1 Stated Income
647 Single Family 1 Full/Alternative
BACK_RATIO LOAN_PURP OCCTYPE PREPAY
---------- --------- ------- ------
- Purchase Investor No
31.35 Purchase Investor No
44.97 Purchase Owner Occupied No
38.78 Purchase Investor No
- Purchase Owner Occupied No
- Purchase Owner Occupied No
28.17 Cash Out Refinance Owner Occupied No
- Purchase Owner Occupied No
36.13 Purchase Owner Occupied No
- Purchase Owner Occupied No
35.20 Purchase Owner Occupied No
32.44 Cash Out Refinance Investor No
- Purchase Investor No
- Cash Out Refinance Owner Occupied No
43.30 Purchase Owner Occupied No
- Purchase Second Home No
15.29 Purchase Owner Occupied No
5.54 Purchase Investor No
38.45 Cash Out Refinance Investor No
45.54 Rate/Term Refinance Owner Occupied No
- Purchase Owner Occupied No
21.73 Purchase Owner Occupied No
40.80 Purchase Owner Occupied No
- Purchase Owner Occupied Yes
- Purchase Owner Occupied No
46.28 Cash Out Refinance Owner Occupied No
47.59 Cash Out Refinance Investor No
31.33 Cash Out Refinance Owner Occupied No
- Cash Out Refinance Owner Occupied No
34.36 Rate/Term Refinance Owner Occupied No
21.24 Purchase Owner Occupied No
- Purchase Owner Occupied No
- Purchase Owner Occupied No
29.06 Purchase Owner Occupied No
32.06 Purchase Investor No
10.85 Purchase Investor No
38.71 Purchase Investor No
- Purchase Owner Occupied No
41.63 Purchase Investor No
- Cash Out Refinance Owner Occupied No
- Cash Out Refinance Owner Occupied No
- Purchase Owner Occupied No
- Rate/Term Refinance Owner Occupied No
14.75 Rate/Term Refinance Owner Occupied No
38.09 Rate/Term Refinance Owner Occupied No
15.00 Purchase Investor No
15.00 Purchase Investor No
43.00 Purchase Investor No
- Purchase Owner Occupied No
30.00 Purchase Owner Occupied No
39.00 Purchase Investor No
36.00 Cash Out Refinance Investor No
35.00 Purchase Owner Occupied No
36.00 Purchase Investor No
30.00 Rate/Term Refinance Investor No
33.00 Purchase Investor No
26.00 Purchase Owner Occupied No
- Purchase Owner Occupied No
35.00 Rate/Term Refinance Owner Occupied No
29.00 Cash Out Refinance Investor No
41.10 Cash Out Refinance Owner Occupied No
27.59 Cash Out Refinance Investor No
32.00 Cash Out Refinance Owner Occupied No
35.00 Cash Out Refinance Investor No
- Cash Out Refinance Investor No
- Cash Out Refinance Owner Occupied No
- Purchase Owner Occupied No
36.43 Purchase Investor No
38.65 Purchase Investor No
- Purchase Investor No
- Purchase Owner Occupied No
- Purchase Owner Occupied No
32.19 Purchase Investor No
- Rate/Term Refinance Owner Occupied No
44.66 Cash Out Refinance Investor No
40.40 Cash Out Refinance Investor No
- Purchase Owner Occupied No
- Purchase Owner Occupied No
- Purchase Owner Occupied No
- Purchase Owner Occupied No
23.78 Purchase Investor No
24.05 Purchase Investor No
- Purchase Owner Occupied No
- Purchase Owner Occupied No
- Rate/Term Refinance Owner Occupied No
26.56 Rate/Term Refinance Owner Occupied No
- Purchase Owner Occupied No
- Rate/Term Refinance Owner Occupied No
- Purchase Owner Occupied No
- Cash Out Refinance Owner Occupied No
- Purchase Owner Occupied No
- Purchase Owner Occupied No
- Purchase Owner Occupied No
- Rate/Term Refinance Owner Occupied No
- Purchase Owner Occupied No
- Cash Out Refinance Owner Occupied No
39.74 Purchase Owner Occupied No
34.15 Rate/Term Refinance Owner Occupied No
49.14 Cash Out Refinance Owner Occupied No
35.56 Cash Out Refinance Investor No
32.25 Purchase Owner Occupied No
36.35 Purchase Owner Occupied No
45.26 Purchase Owner Occupied No
30.07 Purchase Investor No
36.22 Purchase Owner Occupied No
5.60 Purchase Investor No
6.94 Rate/Term Refinance Owner Occupied No
1.44 Cash Out Refinance Investor No
6.60 Cash Out Refinance Investor No
6.60 Cash Out Refinance Investor No
6.60 Cash Out Refinance Investor No
16.10 Rate/Term Refinance Investor No
7.56 Purchase Investor No
6.60 Cash Out Refinance Investor No
1.44 Cash Out Refinance Investor No
1.44 Cash Out Refinance Investor No
31.28 Cash Out Refinance Investor No
15.28 Purchase Investor No
9.49 Purchase Investor No
- Purchase Investor No
1.44 Cash Out Refinance Investor No
10.59 Purchase Owner Occupied No
46.14 Cash Out Refinance Owner Occupied No
22.22 Purchase Investor No
41.57 Cash Out Refinance Owner Occupied No
46.00 Cash Out Refinance Owner Occupied No
49.00 Cash Out Refinance Owner Occupied No
34.00 Cash Out Refinance Owner Occupied No
42.00 Cash Out Refinance Owner Occupied No
39.00 Cash Out Refinance Owner Occupied No
48.00 Cash Out Refinance Owner Occupied No
50.00 Rate/Term Refinance Owner Occupied Yes
48.00 Cash Out Refinance Owner Occupied No
37.00 Cash Out Refinance Owner Occupied No
24.00 Cash Out Refinance Owner Occupied No
50.00 Rate/Term Refinance Owner Occupied No
48.00 Cash Out Refinance Owner Occupied No
26.00 Cash Out Refinance Owner Occupied No
49.00 Cash Out Refinance Owner Occupied No
54.00 Cash Out Refinance Owner Occupied No
- Purchase Investor No
45.99 Purchase Investor No
42.09 Purchase Investor No
- Purchase Owner Occupied No
25.02 Cash Out Refinance Investor No
41.00 Purchase Owner Occupied No
- Cash Out Refinance Investor Yes
33.00 Purchase Owner Occupied No
- Cash Out Refinance Investor Yes
- Cash Out Refinance Owner Occupied No
23.32 Purchase Second Home No
- Purchase Owner Occupied No
- Cash Out Refinance Second Home No
- Purchase Investor No
- Purchase Investor No
- Purchase Owner Occupied No
- Purchase Owner Occupied No
- Cash Out Refinance Owner Occupied No
- Purchase Owner Occupied No
30.39 Cash Out Refinance Owner Occupied No
- Purchase Owner Occupied No
- Purchase Owner Occupied No
- Purchase Owner Occupied No
38.40 Purchase Investor No
- Purchase Second Home No
44.04 Rate/Term Refinance Owner Occupied No
25.27 Purchase Owner Occupied No
39.80 Purchase Investor Yes
24.30 Purchase Owner Occupied No
- Purchase Investor Yes
- Purchase Owner Occupied No
36.20 Purchase Owner Occupied No
59.80 Cash Out Refinance Owner Occupied No
32.90 Purchase Owner Occupied No
36.50 Purchase Owner Occupied No
- Purchase Owner Occupied Yes
- Cash Out Refinance Owner Occupied Yes
1.00 Purchase Owner Occupied No
- Rate/Term Refinance Owner Occupied No
- Purchase Owner Occupied No
- Purchase Owner Occupied No
- Cash Out Refinance Owner Occupied No
40.80 Purchase Owner Occupied No
33.17 Purchase Owner Occupied No
48.48 Cash Out Refinance Owner Occupied No
- Rate/Term Refinance Owner Occupied No
28.61 Cash Out Refinance Owner Occupied No
47.32 Purchase Owner Occupied No
21.90 Rate/Term Refinance Owner Occupied No
43.86 Cash Out Refinance Owner Occupied No
- Rate/Term Refinance Owner Occupied No
- Cash Out Refinance Owner Occupied No
41.14 Cash Out Refinance Owner Occupied No
53.70 Cash Out Refinance Owner Occupied No
26.86 Rate/Term Refinance Owner Occupied No
45.23 Purchase Owner Occupied No
36.82 Purchase Owner Occupied No
49.53 Cash Out Refinance Investor No
- Purchase Owner Occupied No
17.25 Cash Out Refinance Owner Occupied No
40.57 Cash Out Refinance Owner Occupied No
32.00 Purchase Owner Occupied Yes
- Cash Out Refinance Investor No
- Purchase Owner Occupied No
28.34 Cash Out Refinance Owner Occupied No
38.82 Purchase Second Home No
55.46 Rate/Term Refinance Owner Occupied No
47.38 Cash Out Refinance Owner Occupied No
30.75 Cash Out Refinance Owner Occupied No
45.90 Purchase Owner Occupied No
- Cash Out Refinance Owner Occupied No
44.62 Cash Out Refinance Owner Occupied No
52.94 Purchase Investor No
46.50 Purchase Owner Occupied No
9.01 Rate/Term Refinance Investor No
33.76 Cash Out Refinance Owner Occupied No
8.36 Rate/Term Refinance Investor No
7.76 Rate/Term Refinance Investor No
35.60 Purchase Second Home No
22.50 Purchase Second Home No
35.50 Cash Out Refinance Investor No
27.65 Cash Out Refinance Investor No
35.38 Purchase Investor Yes
- Rate/Term Refinance Owner Occupied No
40.55 Cash Out Refinance Owner Occupied No
50.23 Purchase Owner Occupied No
57.66 Rate/Term Refinance Investor No
31.38 Purchase Owner Occupied No
- Purchase Investor No
9.77 Purchase Owner Occupied No
31.09 Purchase Investor No
54.59 Rate/Term Refinance Investor No
50.20 Purchase Owner Occupied No
43.07 Cash Out Refinance Owner Occupied No
- Purchase Owner Occupied No
44.81 Cash Out Refinance Owner Occupied No
43.95 Cash Out Refinance Owner Occupied No
47.16 Cash Out Refinance Owner Occupied No
7.03 Purchase Investor No
49.00 Cash Out Refinance Owner Occupied No
43.40 Cash Out Refinance Owner Occupied No
39.10 Cash Out Refinance Owner Occupied No
41.50 Purchase Owner Occupied No
- Purchase Investor No
- Cash Out Refinance Investor No
41.39 Purchase Investor Yes
- Purchase Investor No
38.86 Cash Out Refinance Owner Occupied No
- Purchase Investor Yes
- Purchase Investor No
- Purchase Owner Occupied Yes
- Purchase Investor No
43.36 Cash Out Refinance Owner Occupied No
45.19 Purchase Investor No
16.63 Purchase Second Home No
22.24 Purchase Second Home No
38.49 Rate/Term Refinance Owner Occupied No
- Purchase Owner Occupied No
24.11 Cash Out Refinance Second Home No
21.95 Cash Out Refinance Owner Occupied No
35.59 Rate/Term Refinance Owner Occupied No
- Purchase Owner Occupied No
39.52 Purchase Owner Occupied No
35.25 Rate/Term Refinance Owner Occupied No
- Cash Out Refinance Investor No
47.34 Purchase Owner Occupied No
36.80 Purchase Owner Occupied No
- Purchase Owner Occupied No
- Cash Out Refinance Owner Occupied No
38.55 Purchase Owner Occupied No
16.25 Rate/Term Refinance Investor No
- Purchase Owner Occupied No
- Purchase Owner Occupied No
- Purchase Investor No
- Purchase Owner Occupied No
40.60 Purchase Investor No
- Purchase Investor No
- Purchase Owner Occupied No
47.48 Rate/Term Refinance Investor No
7.84 Rate/Term Refinance Investor No
49.86 Rate/Term Refinance Owner Occupied No
- Purchase Owner Occupied No
42.00 Cash Out Refinance Owner Occupied No
47.00 Purchase Investor No
- Cash Out Refinance Owner Occupied Yes
48.85 Purchase Owner Occupied No
32.33 Purchase Investor Yes
33.45 Purchase Owner Occupied Yes
30.17 Rate/Term Refinance Owner Occupied Yes
35.00 Cash Out Refinance Owner Occupied Yes
33.65 Cash Out Refinance Owner Occupied Yes
32.90 Purchase Investor Yes
- Purchase Owner Occupied Yes
19.99 Purchase Investor No
8.31 Rate/Term Refinance Owner Occupied Yes
34.55 Rate/Term Refinance Owner Occupied Yes
52.60 Purchase Investor No
33.00 Cash Out Refinance Owner Occupied No
- Cash Out Refinance Owner Occupied No
- Cash Out Refinance Owner Occupied No
9.30 Purchase Investor No
- Rate/Term Refinance Owner Occupied No
30.00 Purchase Investor No
47.40 Purchase Investor No
35.80 Purchase Investor No
35.80 Purchase Investor No
25.60 Purchase Owner Occupied No
30.90 Purchase Owner Occupied No
- Purchase Owner Occupied No
7.10 Purchase Investor No
- Purchase Owner Occupied No
35.00 Cash Out Refinance Investor No
- Purchase Investor No
37.10 Purchase Owner Occupied No
- Purchase Owner Occupied No
35.95 Cash Out Refinance Investor No
38.61 Cash Out Refinance Investor No
- Purchase Second Home No
- Rate/Term Refinance Owner Occupied No
- Purchase Owner Occupied No
46.70 Cash Out Refinance Investor Yes
38.90 Cash Out Refinance Investor No
- Cash Out Refinance Investor No
- Purchase Owner Occupied No
33.30 Purchase Investor Yes
- Purchase Owner Occupied Yes
- Purchase Owner Occupied Yes
42.20 Purchase Investor No
33.10 Purchase Investor No
36.48 Purchase Investor No
45.78 Purchase Owner Occupied No
- Cash Out Refinance Owner Occupied No
- Purchase Owner Occupied No
- Purchase Owner Occupied Yes
- Purchase Owner Occupied Yes
- Rate/Term Refinance Second Home Yes
- Purchase Owner Occupied No
37.23 Cash Out Refinance Owner Occupied Yes
- Purchase Owner Occupied No
- Purchase Owner Occupied No
- Cash Out Refinance Owner Occupied No
- Purchase Owner Occupied No
- Purchase Owner Occupied No
- Purchase Owner Occupied Yes
33.07 Cash Out Refinance Owner Occupied No
- Purchase Owner Occupied No
- Purchase Owner Occupied Yes
23.40 Purchase Owner Occupied No
- Cash Out Refinance Owner Occupied Yes
- Purchase Owner Occupied Yes
- Purchase Owner Occupied No
- Purchase Owner Occupied No
- Cash Out Refinance Second Home No
- Purchase Owner Occupied No
- Purchase Owner Occupied Yes
- Rate/Term Refinance Owner Occupied No
- Purchase Owner Occupied No
- Purchase Owner Occupied No
35.55 Purchase Owner Occupied Yes
- Purchase Owner Occupied Yes
- Cash Out Refinance Owner Occupied No
- Cash Out Refinance Investor No
- Purchase Owner Occupied No
- Purchase Owner Occupied No
- Purchase Owner Occupied No
- Purchase Owner Occupied No
- Purchase Owner Occupied No
- Purchase Owner Occupied No
- Rate/Term Refinance Owner Occupied No
- Purchase Owner Occupied No
- Cash Out Refinance Owner Occupied No
- Purchase Owner Occupied No
- Cash Out Refinance Investor No
- Purchase Owner Occupied No
- Purchase Owner Occupied No
- Purchase Owner Occupied No
- Purchase Owner Occupied No
- Purchase Owner Occupied No
- Purchase Owner Occupied No
- Purchase Owner Occupied No
- Cash Out Refinance Investor No
- Purchase Owner Occupied No
- Purchase Owner Occupied No
- Rate/Term Refinance Owner Occupied No
- Purchase Owner Occupied No
- Cash Out Refinance Owner Occupied No
- Purchase Owner Occupied No
- Cash Out Refinance Owner Occupied No
- Purchase Owner Occupied No
- Purchase Owner Occupied No
- Purchase Owner Occupied No
- Cash Out Refinance Owner Occupied No
- Purchase Owner Occupied No
- Purchase Investor No
- Purchase Owner Occupied No
- Purchase Owner Occupied No
- Purchase Owner Occupied No
- Rate/Term Refinance Owner Occupied No
- Cash Out Refinance Owner Occupied No
- Cash Out Refinance Owner Occupied No
- Purchase Owner Occupied No
- Purchase Owner Occupied No
- Rate/Term Refinance Owner Occupied No
- Purchase Owner Occupied No
- Purchase Owner Occupied No
- Purchase Owner Occupied No
- Purchase Owner Occupied No
- Purchase Owner Occupied No
- Purchase Owner Occupied No
- Purchase Owner Occupied No
- Purchase Owner Occupied No
- Rate/Term Refinance Owner Occupied No
- Purchase Owner Occupied No
- Purchase Owner Occupied No
- Rate/Term Refinance Owner Occupied No
- Cash Out Refinance Owner Occupied No
- Purchase Owner Occupied No
- Purchase Owner Occupied No
- Cash Out Refinance Owner Occupied No
- Rate/Term Refinance Owner Occupied No
- Rate/Term Refinance Owner Occupied No
- Purchase Owner Occupied No
- Cash Out Refinance Owner Occupied No
- Rate/Term Refinance Owner Occupied No
- Purchase Owner Occupied No
- Purchase Owner Occupied No
- Purchase Owner Occupied No
- Purchase Owner Occupied No
- Rate/Term Refinance Owner Occupied No
- Purchase Owner Occupied No
- Cash Out Refinance Owner Occupied No
- Cash Out Refinance Second Home No
35.73 Rate/Term Refinance Owner Occupied No
- Purchase Owner Occupied No
- Purchase Owner Occupied No
49.90 Purchase Owner Occupied No
- Cash Out Refinance Owner Occupied No
- Purchase Owner Occupied No
31.10 Purchase Owner Occupied No
32.90 Cash Out Refinance Owner Occupied No
- Purchase Owner Occupied No
- Purchase Owner Occupied No
47.90 Rate/Term Refinance Owner Occupied No
- Rate/Term Refinance Owner Occupied No
29.71 Purchase Owner Occupied No
1.00 Purchase Owner Occupied No
1.00 Purchase Owner Occupied No
1.00 Purchase Owner Occupied No
1.00 Rate/Term Refinance Owner Occupied No
1.00 Purchase Owner Occupied No
1.00 Purchase Owner Occupied No
1.00 Purchase Owner Occupied No
1.00 Purchase Owner Occupied No
1.00 Purchase Owner Occupied No
21.52 Purchase Owner Occupied No
1.10 Cash Out Refinance Owner Occupied No
1.00 Purchase Owner Occupied No
1.00 Purchase Owner Occupied No
32.22 Purchase Investor No
1.00 Purchase Owner Occupied No
1.00 Purchase Owner Occupied No
1.00 Purchase Owner Occupied No
22.00 Purchase Owner Occupied No
32.64 Purchase Owner Occupied No
1.00 Purchase Owner Occupied No
1.00 Purchase Owner Occupied No
1.00 Purchase Owner Occupied No
1.00 Purchase Owner Occupied No
1.00 Purchase Owner Occupied No
1.00 Purchase Owner Occupied No
1.00 Cash Out Refinance Owner Occupied No
1.00 Purchase Owner Occupied No
1.00 Purchase Owner Occupied No
35.15 Cash Out Refinance Owner Occupied No
1.00 Rate/Term Refinance Owner Occupied No
1.00 Cash Out Refinance Owner Occupied No
1.00 Purchase Owner Occupied No
1.00 Purchase Owner Occupied No
1.00 Purchase Owner Occupied No
1.00 Purchase Owner Occupied No
1.00 Purchase Owner Occupied No
1.00 Purchase Owner Occupied No
1.00 Purchase Owner Occupied No
28.77 Purchase Owner Occupied No
1.00 Purchase Owner Occupied No
1.00 Cash Out Refinance Investor No
1.00 Rate/Term Refinance Owner Occupied No
1.00 Purchase Owner Occupied No
1.00 Purchase Owner Occupied No
1.00 Purchase Owner Occupied No
26.00 Rate/Term Refinance Investor No
1.00 Rate/Term Refinance Owner Occupied No
1.00 Purchase Owner Occupied No
1.00 Purchase Owner Occupied No
24.33 Cash Out Refinance Investor No
1.00 Purchase Owner Occupied No
1.00 Purchase Owner Occupied No
43.91 Purchase Owner Occupied No
32.69 Purchase Investor No
1.00 Cash Out Refinance Owner Occupied No
1.00 Rate/Term Refinance Owner Occupied No
1.00 Purchase Owner Occupied No
32.76 Purchase Owner Occupied No
1.00 Purchase Owner Occupied No
1.00 Purchase Owner Occupied No
34.68 Cash Out Refinance Owner Occupied No
1.00 Purchase Owner Occupied No
1.00 Purchase Owner Occupied No
39.71 Cash Out Refinance Investor No
1.00 Rate/Term Refinance Owner Occupied No
1.00 Purchase Owner Occupied No
1.00 Purchase Owner Occupied No
1.00 Cash Out Refinance Owner Occupied No
1.00 Purchase Owner Occupied No
1.00 Rate/Term Refinance Owner Occupied No
1.00 Purchase Owner Occupied No
- Purchase Owner Occupied No
- Purchase Owner Occupied No
- Rate/Term Refinance Owner Occupied No
27.70 Purchase Owner Occupied No
17.90 Purchase Owner Occupied No
29.00 Purchase Owner Occupied No
29.30 Purchase Owner Occupied No
30.90 Purchase Owner Occupied No
1.00 Purchase Owner Occupied No
1.00 Purchase Owner Occupied No
25.00 Purchase Owner Occupied Yes
- Purchase Investor Yes
1.00 Purchase Owner Occupied No
1.00 Purchase Owner Occupied No
1.00 Purchase Owner Occupied No
51.07 Cash Out Refinance Investor No
1.00 Purchase Owner Occupied No
1.00 Purchase Owner Occupied No
1.00 Purchase Second Home No
39.91 Purchase Owner Occupied No
1.00 Purchase Owner Occupied No
1.00 Purchase Owner Occupied No
19.88 Purchase Investor No
1.00 Rate/Term Refinance Owner Occupied No
1.00 Purchase Owner Occupied No
1.00 Purchase Investor No
1.00 Cash Out Refinance Owner Occupied No
1.00 Cash Out Refinance Owner Occupied No
1.00 Cash Out Refinance Owner Occupied No
1.00 Cash Out Refinance Owner Occupied No
20.50 Cash Out Refinance Investor No
1.00 Purchase Second Home No
1.00 Cash Out Refinance Owner Occupied No
36.09 Rate/Term Refinance Owner Occupied No
1.00 Cash Out Refinance Owner Occupied No
1.00 Purchase Owner Occupied Yes
1.00 Purchase Owner Occupied No
1.00 Purchase Owner Occupied No
41.30 Cash Out Refinance Owner Occupied No
1.00 Purchase Owner Occupied No
1.00 Purchase Owner Occupied Yes
67.60 Cash Out Refinance Owner Occupied No
59.70 Purchase Owner Occupied No
31.19 Cash Out Refinance Owner Occupied No
36.27 Purchase Owner Occupied No
14.70 Purchase Owner Occupied No
23.23 Purchase Investor No
41.46 Purchase Owner Occupied No
46.23 Purchase Owner Occupied No
32.37 Purchase Owner Occupied No
46.55 Purchase Owner Occupied No
24.32 Cash Out Refinance Owner Occupied No
41.27 Purchase Owner Occupied No
47.31 Purchase Owner Occupied No
30.60 Cash Out Refinance Owner Occupied No
33.83 Rate/Term Refinance Investor No
18.98 Rate/Term Refinance Owner Occupied No
35.61 Cash Out Refinance Owner Occupied No
22.49 Purchase Owner Occupied No
39.23 Purchase Owner Occupied No
27.74 Purchase Owner Occupied No
16.99 Cash Out Refinance Owner Occupied No
18.99 Purchase Owner Occupied No
44.70 Purchase Owner Occupied No
38.30 Purchase Second Home No
26.75 Purchase Owner Occupied No
29.58 Cash Out Refinance Owner Occupied No
15.02 Purchase Owner Occupied No
35.09 Cash Out Refinance Owner Occupied No
25.15 Cash Out Refinance Owner Occupied No
30.76 Cash Out Refinance Owner Occupied No
24.83 Purchase Owner Occupied No
47.49 Purchase Second Home No
39.28 Purchase Owner Occupied No
21.13 Rate/Term Refinance Investor No
40.90 Rate/Term Refinance Owner Occupied No
45.07 Purchase Owner Occupied No
40.66 Cash Out Refinance Owner Occupied No
41.25 Cash Out Refinance Owner Occupied No
45.11 Rate/Term Refinance Second Home No
49.25 Cash Out Refinance Owner Occupied No
31.03 Rate/Term Refinance Owner Occupied No
34.04 Cash Out Refinance Owner Occupied No
35.53 Purchase Owner Occupied No
27.39 Purchase Owner Occupied No
39.98 Purchase Owner Occupied No
27.52 Purchase Second Home No
29.00 Purchase Owner Occupied No
44.51 Purchase Owner Occupied No
48.45 Cash Out Refinance Owner Occupied No
47.19 Cash Out Refinance Owner Occupied No
22.56 Rate/Term Refinance Owner Occupied No
31.29 Cash Out Refinance Investor No
30.23 Rate/Term Refinance Owner Occupied No
46.61 Rate/Term Refinance Owner Occupied No
27.47 Purchase Second Home No
40.73 Cash Out Refinance Owner Occupied No
21.56 Purchase Owner Occupied No
49.09 Cash Out Refinance Owner Occupied No
30.37 Cash Out Refinance Investor No
16.14 Cash Out Refinance Owner Occupied No
50.85 Cash Out Refinance Second Home No
32.42 Purchase Owner Occupied No
33.88 Purchase Owner Occupied No
28.38 Purchase Owner Occupied No
47.91 Rate/Term Refinance Owner Occupied No
35.03 Purchase Second Home No
26.43 Purchase Owner Occupied No
31.12 Rate/Term Refinance Owner Occupied No
47.60 Cash Out Refinance Owner Occupied No
44.90 Cash Out Refinance Owner Occupied No
32.50 Rate/Term Refinance Owner Occupied No
19.26 Purchase Owner Occupied No
48.03 Cash Out Refinance Owner Occupied No
4.61 Purchase Second Home No
48.25 Cash Out Refinance Owner Occupied No
43.05 Rate/Term Refinance Owner Occupied No
38.93 Purchase Investor No
42.20 Purchase Owner Occupied No
46.26 Purchase Owner Occupied No
22.61 Purchase Owner Occupied No
44.15 Purchase Owner Occupied No
48.13 Purchase Second Home No
25.52 Purchase Owner Occupied No
40.06 Purchase Owner Occupied No
42.50 Purchase Owner Occupied No
46.63 Rate/Term Refinance Second Home No
43.90 Purchase Owner Occupied No
32.01 Rate/Term Refinance Owner Occupied No
35.92 Purchase Owner Occupied No
32.47 Cash Out Refinance Owner Occupied No
52.77 Purchase Owner Occupied No
41.54 Cash Out Refinance Owner Occupied No
34.77 Purchase Owner Occupied No
43.22 Purchase Owner Occupied No
24.77 Cash Out Refinance Owner Occupied No
44.73 Purchase Owner Occupied No
39.21 Purchase Owner Occupied No
32.85 Purchase Owner Occupied No
29.08 Purchase Owner Occupied No
40.40 Cash Out Refinance Second Home No
13.51 Cash Out Refinance Owner Occupied No
42.68 Cash Out Refinance Owner Occupied No
43.51 Purchase Owner Occupied No
29.00 Rate/Term Refinance Owner Occupied No
22.12 Rate/Term Refinance Owner Occupied No
43.78 Rate/Term Refinance Owner Occupied No
35.16 Rate/Term Refinance Owner Occupied No
44.88 Purchase Owner Occupied No
31.50 Cash Out Refinance Owner Occupied No
35.41 Cash Out Refinance Owner Occupied No
33.08 Cash Out Refinance Owner Occupied No
8.27 Cash Out Refinance Second Home No
34.38 Rate/Term Refinance Owner Occupied No
25.66 Cash Out Refinance Owner Occupied No
38.96 Purchase Owner Occupied No
39.96 Rate/Term Refinance Owner Occupied No
28.87 Cash Out Refinance Owner Occupied No
29.15 Purchase Owner Occupied No
18.42 Purchase Owner Occupied No
43.75 Cash Out Refinance Owner Occupied No
35.53 Purchase Second Home No
20.04 Purchase Owner Occupied No
28.29 Cash Out Refinance Owner Occupied No
37.45 Purchase Owner Occupied No
36.24 Rate/Term Refinance Second Home No
35.61 Purchase Owner Occupied No
24.29 Rate/Term Refinance Second Home No
18.31 Purchase Owner Occupied No
12.78 Rate/Term Refinance Second Home No
23.28 Rate/Term Refinance Owner Occupied No
36.49 Purchase Owner Occupied No
19.17 Purchase Owner Occupied No
48.73 Rate/Term Refinance Owner Occupied No
39.89 Purchase Owner Occupied No
29.09 Rate/Term Refinance Owner Occupied No
32.70 Purchase Owner Occupied No
- Cash Out Refinance Owner Occupied No
35.62 Purchase Owner Occupied No
30.29 Cash Out Refinance Owner Occupied No
10.21 Rate/Term Refinance Second Home No
26.44 Rate/Term Refinance Investor No
19.86 Purchase Investor No
22.64 Purchase Owner Occupied No
12.21 Purchase Owner Occupied No
38.65 Cash Out Refinance Owner Occupied No
38.91 Rate/Term Refinance Owner Occupied No
39.67 Purchase Owner Occupied No
45.94 Purchase Owner Occupied No
26.16 Purchase Owner Occupied No
31.07 Cash Out Refinance Second Home No
24.96 Purchase Owner Occupied No
11.43 Purchase Owner Occupied No
39.75 Cash Out Refinance Owner Occupied No
39.95 Purchase Owner Occupied No
33.39 Cash Out Refinance Owner Occupied No
38.63 Purchase Owner Occupied No
36.20 Cash Out Refinance Owner Occupied No
29.93 Purchase Owner Occupied No
38.84 Purchase Owner Occupied No
31.53 Purchase Owner Occupied No
39.47 Purchase Investor No
41.36 Purchase Owner Occupied No
48.46 Purchase Owner Occupied No
47.25 Cash Out Refinance Owner Occupied No
33.28 Cash Out Refinance Owner Occupied No
25.68 Purchase Owner Occupied No
15.01 Rate/Term Refinance Owner Occupied No
36.58 Rate/Term Refinance Owner Occupied No
39.44 Purchase Owner Occupied No
35.77 Purchase Investor No
33.69 Rate/Term Refinance Owner Occupied No
29.82 Purchase Owner Occupied No
20.43 Purchase Owner Occupied No
46.13 Rate/Term Refinance Investor No
29.78 Cash Out Refinance Owner Occupied No
32.64 Cash Out Refinance Owner Occupied No
44.20 Cash Out Refinance Owner Occupied No
25.50 Purchase Second Home No
32.45 Purchase Owner Occupied No
26.23 Rate/Term Refinance Owner Occupied No
20.72 Rate/Term Refinance Investor No
41.46 Rate/Term Refinance Second Home No
16.77 Cash Out Refinance Owner Occupied No
27.34 Rate/Term Refinance Owner Occupied No
19.93 Cash Out Refinance Owner Occupied No
35.85 Purchase Owner Occupied No
11.77 Rate/Term Refinance Investor No
31.88 Cash Out Refinance Owner Occupied No
12.57 Purchase Second Home No
14.47 Purchase Second Home No
39.54 Purchase Owner Occupied No
39.00 Purchase Owner Occupied No
19.41 Rate/Term Refinance Investor No
39.73 Cash Out Refinance Owner Occupied No
33.45 Purchase Owner Occupied No
24.16 Purchase Owner Occupied No
30.62 Purchase Owner Occupied No
24.43 Cash Out Refinance Investor No
32.87 Cash Out Refinance Owner Occupied No
40.73 Purchase Owner Occupied No
37.39 Rate/Term Refinance Owner Occupied No
31.49 Rate/Term Refinance Owner Occupied No
41.80 Purchase Investor No
37.88 Rate/Term Refinance Owner Occupied No
41.03 Cash Out Refinance Owner Occupied No
23.77 Purchase Investor No
43.04 Rate/Term Refinance Owner Occupied No
34.45 Cash Out Refinance Owner Occupied No
38.03 Purchase Owner Occupied No
27.12 Purchase Owner Occupied No
37.33 Cash Out Refinance Owner Occupied No
36.79 Rate/Term Refinance Owner Occupied No
37.33 Purchase Owner Occupied No
52.45 Rate/Term Refinance Owner Occupied No
36.36 Purchase Owner Occupied No
25.86 Rate/Term Refinance Owner Occupied No
38.24 Purchase Owner Occupied No
40.24 Cash Out Refinance Owner Occupied No
37.16 Purchase Owner Occupied No
27.03 Purchase Owner Occupied No
22.98 Rate/Term Refinance Owner Occupied No
13.22 Cash Out Refinance Investor No
23.80 Cash Out Refinance Second Home No
38.83 Cash Out Refinance Owner Occupied No
34.24 Cash Out Refinance Owner Occupied No
6.81 Cash Out Refinance Owner Occupied No
31.54 Purchase Investor No
18.94 Rate/Term Refinance Owner Occupied No
18.29 Purchase Second Home No
28.92 Purchase Owner Occupied No
26.52 Purchase Second Home No
19.61 Purchase Owner Occupied No
46.85 Purchase Owner Occupied No
20.00 Purchase Investor No
44.95 Purchase Owner Occupied No
35.59 Rate/Term Refinance Owner Occupied No
40.08 Purchase Owner Occupied No
35.93 Purchase Investor No
36.81 Rate/Term Refinance Owner Occupied No
21.24 Cash Out Refinance Investor No
33.91 Cash Out Refinance Owner Occupied No
22.87 Cash Out Refinance Owner Occupied No
41.07 Purchase Owner Occupied No
27.42 Purchase Second Home No
19.26 Rate/Term Refinance Owner Occupied No
48.73 Cash Out Refinance Owner Occupied No
38.45 Cash Out Refinance Owner Occupied No
22.22 Purchase Second Home No
41.48 Cash Out Refinance Owner Occupied No
20.72 Purchase Owner Occupied No
24.28 Purchase Owner Occupied No
39.86 Purchase Second Home No
16.37 Cash Out Refinance Owner Occupied No
24.16 Cash Out Refinance Owner Occupied No
25.40 Rate/Term Refinance Owner Occupied No
13.12 Rate/Term Refinance Owner Occupied No
19.70 Purchase Owner Occupied No
16.97 Rate/Term Refinance Owner Occupied No
12.60 Cash Out Refinance Owner Occupied No
42.49 Rate/Term Refinance Owner Occupied No
53.55 Cash Out Refinance Owner Occupied No
37.25 Purchase Owner Occupied No
24.06 Rate/Term Refinance Owner Occupied No
35.40 Purchase Owner Occupied No
30.03 Rate/Term Refinance Owner Occupied No
35.62 Cash Out Refinance Owner Occupied No
24.69 Purchase Owner Occupied No
28.20 Cash Out Refinance Owner Occupied No
28.34 Rate/Term Refinance Owner Occupied No
26.80 Purchase Investor No
33.46 Purchase Owner Occupied No
22.08 Purchase Second Home No
32.06 Purchase Owner Occupied No
39.57 Purchase Owner Occupied No
31.08 Cash Out Refinance Owner Occupied No
14.07 Cash Out Refinance Owner Occupied No
43.20 Cash Out Refinance Owner Occupied No
23.30 Purchase Owner Occupied No
32.13 Cash Out Refinance Owner Occupied No
15.10 Purchase Owner Occupied No
23.01 Cash Out Refinance Owner Occupied No
30.95 Purchase Investor No
42.89 Cash Out Refinance Second Home No
11.17 Purchase Owner Occupied No
42.45 Purchase Investor No
29.38 Rate/Term Refinance Second Home No
27.89 Cash Out Refinance Owner Occupied No
25.25 Purchase Owner Occupied No
29.44 Cash Out Refinance Owner Occupied No
40.11 Purchase Second Home No
33.61 Purchase Owner Occupied No
40.29 Cash Out Refinance Owner Occupied No
38.41 Purchase Owner Occupied No
37.38 Purchase Owner Occupied No
25.84 Cash Out Refinance Owner Occupied No
29.21 Rate/Term Refinance Owner Occupied No
39.90 Rate/Term Refinance Owner Occupied No
8.02 Purchase Second Home No
36.98 Rate/Term Refinance Owner Occupied No
32.35 Purchase Owner Occupied No
37.55 Cash Out Refinance Owner Occupied No
36.56 Purchase Owner Occupied No
41.38 Cash Out Refinance Owner Occupied No
50.28 Purchase Owner Occupied No
3.55 Purchase Owner Occupied No
20.25 Purchase Second Home No
37.80 Cash Out Refinance Second Home No
47.94 Purchase Owner Occupied No
44.08 Cash Out Refinance Owner Occupied No
9.01 Purchase Owner Occupied No
37.34 Cash Out Refinance Owner Occupied No
41.38 Cash Out Refinance Owner Occupied No
41.94 Cash Out Refinance Second Home No
41.93 Purchase Second Home No
44.46 Purchase Owner Occupied No
49.38 Purchase Owner Occupied No
34.16 Cash Out Refinance Owner Occupied No
32.78 Purchase Owner Occupied No
26.48 Purchase Owner Occupied No
43.84 Cash Out Refinance Owner Occupied No
30.77 Purchase Owner Occupied No
37.46 Purchase Owner Occupied No
25.46 Purchase Owner Occupied No
45.80 Cash Out Refinance Owner Occupied No
43.33 Cash Out Refinance Owner Occupied No
23.79 Purchase Owner Occupied No
40.32 Rate/Term Refinance Second Home No
29.71 Purchase Owner Occupied No
31.56 Purchase Owner Occupied No
29.69 Purchase Owner Occupied No
34.06 Purchase Owner Occupied No
32.49 Purchase Owner Occupied No
27.13 Purchase Owner Occupied No
48.09 Purchase Owner Occupied No
31.14 Purchase Owner Occupied No
35.32 Rate/Term Refinance Owner Occupied No
PP_DESC APPRAISAL SALES_PRICE LOAN_TO_VALUE
------- --------- ----------- -------------
NO PP 60,000.00 60,000.00 90.00
NO PP 123,500.00 123,500.00 70.00
NO PP 105,500.00 105,000.00 88.78
NO PP 143,000.00 135,000.00 90.00
NO PP 204,500.00 204,305.00 89.99
NO PP 250,000.00 239,900.00 89.83
NO PP 425,000.00 - 80.00
NO PP 155,000.00 153,900.00 89.99
NO PP 236,000.00 213,094.00 89.98
NO PP 357,000.00 352,500.00 60.99
NO PP 154,000.00 152,500.00 90.00
NO PP 52,000.00 - 80.00
NO PP 105,000.00 102,500.00 80.00
NO PP 285,000.00 - 93.49
NO PP 64,000.00 64,000.00 90.00
NO PP 170,000.00 158,900.00 68.53
NO PP 127,500.00 125,000.00 80.00
NO PP 230,000.00 220,000.00 80.00
NO PP 76,000.00 - 39.47
NO PP 500,000.00 - 37.00
NO PP 380,000.00 372,000.00 80.00
NO PP 130,000.00 129,950.00 74.99
NO PP 70,000.00 69,950.00 79.99
5Y PP 121,000.00 120,500.00 99.54
NO PP 150,000.00 151,500.00 90.00
NO PP 1,300,000.00 - 53.08
NO PP 79,000.00 - 75.00
NO PP 175,000.00 - 84.29
NO PP 109,000.00 - 90.00
NO PP 236,500.00 - 77.63
NO PP 274,000.00 256,500.00 90.00
NO PP 82,000.00 82,000.00 95.00
NO PP 82,000.00 82,000.00 90.00
NO PP 140,000.00 140,000.00 85.71
NO PP 130,000.00 130,000.00 80.00
NO PP 160,000.00 155,000.00 80.00
NO PP 119,500.00 118,000.00 80.00
NO PP 365,000.00 365,000.00 89.86
NO PP 132,000.00 130,000.00 80.00
NO PP 450,000.00 - 35.56
NO PP 270,000.00 - 32.96
NO PP 100,000.00 98,100.00 61.16
NO PP 900,000.00 - 62.19
NO PP 450,000.00 - 75.00
NO PP 756,000.00 - 79.89
NO PP 151,240.00 151,240.00 80.00
NO PP 142,840.00 142,846.00 80.00
NO PP 176,000.00 176,000.00 90.00
NO PP 175,000.00 175,000.00 85.00
NO PP 48,500.00 48,500.00 90.00
NO PP 140,000.00 140,000.00 80.00
NO PP 64,000.00 - 75.00
NO PP 55,000.00 55,000.00 90.00
NO PP 117,700.00 117,700.00 89.97
NO PP 160,000.00 - 80.00
NO PP 30,000.00 30,000.00 75.00
NO PP 55,000.00 55,000.00 90.00
NO PP 70,000.00 70,000.00 95.00
NO PP 275,000.00 - 90.00
NO PP 331,000.00 - 75.00
NO PP 73,000.00 - 80.00
NO PP 255,000.00 - 47.84
NO PP 300,000.00 - 71.17
NO PP 80,990.00 - 77.81
NO PP 77,000.00 - 75.00
NO PP 380,000.00 - 69.74
NO PP 520,000.00 508,000.00 80.00
NO PP 45,000.00 43,500.00 70.00
NO PP 51,000.00 49,500.00 89.90
NO PP 104,000.00 85,000.00 80.00
NO PP 225,000.00 221,620.00 94.98
NO PP 125,000.00 122,500.00 94.98
NO PP 146,500.00 145,250.00 84.99
NO PP 77,000.00 - 93.51
NO PP 146,500.00 - 71.67
NO PP 90,000.00 - 66.67
NO PP 189,000.00 189,000.00 95.00
NO PP 60,000.00 60,000.00 95.00
NO PP 117,000.00 117,000.00 95.00
NO PP 139,000.00 139,000.00 95.00
NO PP 123,716.00 123,716.00 79.98
NO PP 123,200.00 121,463.00 79.98
NO PP 125,000.00 125,000.00 95.00
NO PP 46,000.00 49,000.00 95.00
NO PP 70,000.00 - 82.86
NO PP 315,000.00 - 68.95
NO PP 115,000.00 115,000.00 90.00
NO PP 520,000.00 - 70.00
NO PP 67,500.00 66,500.00 94.96
NO PP 102,000.00 - 90.00
NO PP 122,000.00 117,000.00 90.00
NO PP 82,500.00 72,000.00 95.00
NO PP 155,000.00 152,500.00 94.98
NO PP 74,000.00 - 95.00
NO PP 102,500.00 102,000.00 95.00
NO PP 66,000.00 - 90.00
NO PP 83,000.00 79,000.00 84.81
NO PP 158,000.00 - 85.00
NO PP 75,500.00 - 85.00
NO PP 215,000.00 - 71.88
NO PP 1,260,000.00 1,260,000.00 79.37
NO PP 395,000.00 390,000.00 80.00
NO PP 151,000.00 149,900.00 97.00
NO PP 41,000.00 40,800.00 70.34
NO PP 285,000.00 275,000.00 80.00
NO PP 135,000.00 135,000.00 90.00
NO PP 245,000.00 - 49.18
NO PP 85,000.00 - 75.00
NO PP 63,500.00 - 75.00
NO PP 61,000.00 - 75.00
NO PP 62,000.00 - 75.00
NO PP 100,000.00 - 75.00
NO PP 71,000.00 66,000.00 90.00
NO PP 65,500.00 - 75.00
NO PP 85,000.00 - 75.00
NO PP 85,000.00 - 75.00
NO PP 205,000.00 - 79.90
NO PP 116,000.00 116,000.00 90.00
NO PP 44,200.00 40,500.00 90.00
NO PP 46,000.00 45,000.00 80.00
NO PP 85,000.00 - 75.00
NO PP 185,000.00 182,990.00 80.00
NO PP 484,000.00 - 69.11
NO PP 425,000.00 425,000.00 75.00
NO PP 399,500.00 - 80.00
NO PP 111,000.00 - 100.00
NO PP 106,000.00 - 100.00
NO PP 255,000.00 - 100.00
NO PP 92,000.00 - 100.00
NO PP 113,000.00 - 100.00
NO PP 155,000.00 - 100.00
5Y PP 138,000.00 - 100.00
NO PP 112,500.00 - 100.00
NO PP 90,000.00 - 100.00
NO PP 120,000.00 - 100.00
NO PP 142,000.00 - 100.00
NO PP 205,000.00 - 100.00
NO PP 98,000.00 - 100.00
NO PP 103,000.00 - 100.00
NO PP 216,000.00 - 100.00
NO PP 70,000.00 69,900.00 89.84
NO PP 64,000.00 50,000.00 90.00
NO PP 67,000.00 67,000.00 95.00
NO PP 73,000.00 72,000.00 89.86
NO PP 47,000.00 - 89.90
NO PP 130,000.00 130,000.00 95.00
5Y PP 153,000.00 - 80.00
NO PP 194,500.00 192,900.00 96.99
5Y PP 83,000.00 - 95.00
NO PP 392,500.00 - 89.99
NO PP 73,000.00 73,000.00 90.00
NO PP 327,000.00 325,000.00 80.00
NO PP 743,000.00 - 43.41
NO PP 123,000.00 116,850.00 94.99
NO PP 76,500.00 75,000.00 89.87
NO PP 68,000.00 67,000.00 95.00
NO PP 225,000.00 235,000.00 89.90
NO PP 92,000.00 - 69.57
NO PP 62,000.00 56,000.00 64.29
NO PP 87,000.00 - 80.00
NO PP 368,000.00 368,000.00 95.00
NO PP 83,000.00 60,000.00 90.00
NO PP 187,000.00 180,000.00 80.00
NO PP 445,000.00 443,000.00 80.00
NO PP 100,000.00 82,000.00 80.00
NO PP 140,000.00 - 82.14
NO PP 330,000.00 330,000.00 95.00
5Y PP 205,000.00 199,199.00 80.00
NO PP 78,000.00 77,500.00 80.00
5Y PP 85,000.00 85,000.00 80.00
NO PP 95,000.00 95,000.00 80.00
NO PP 81,000.00 79,500.00 70.00
NO PP 133,000.00 - 80.00
NO PP 235,000.00 224,825.00 37.81
NO PP 106,500.00 106,500.00 90.00
5Y PP 650,000.00 635,000.00 70.00
5Y PP 1,100,000.00 - 68.18
NO PP 62,500.00 62,500.00 88.96
NO PP 78,000.00 - 70.00
NO PP 80,000.00 76,000.00 90.00
NO PP 49,000.00 48,500.00 94.95
NO PP 360,000.00 - 90.00
NO PP 985,000.00 985,000.00 79.19
NO PP 525,000.00 516,542.00 79.95
NO PP 1,200,000.00 - 54.17
NO PP 470,000.00 - 71.91
NO PP 1,050,000.00 - 61.90
NO PP 550,000.00 510,000.00 90.00
NO PP 950,000.00 - 58.47
NO PP 530,000.00 - 85.00
NO PP 880,000.00 - 77.84
NO PP 925,000.00 - 70.00
NO PP 520,000.00 - 80.00
NO PP 1,399,500.00 - 60.00
NO PP 940,000.00 - 55.85
NO PP 71,000.00 71,000.00 93.66
NO PP 392,500.00 392,500.00 76.43
NO PP 60,000.00 - 70.00
NO PP 235,000.00 235,000.00 95.00
NO PP 122,219.00 - 73.64
NO PP 95,000.00 - 95.00
5Y PP 80,000.00 79,500.00 74.84
NO PP 500,000.00 - 41.42
NO PP 167,900.00 167,900.00 39.90
NO PP 137,000.00 - 80.00
NO PP 287,177.00 287,177.00 74.99
NO PP 270,000.00 - 79.00
NO PP 70,200.00 - 89.74
NO PP 90,000.00 - 95.00
NO PP 406,548.00 406,548.00 80.00
NO PP 126,000.00 - 90.00
NO PP 120,000.00 - 80.00
NO PP 225,000.00 225,000.00 90.00
NO PP 500,000.00 499,591.00 79.40
NO PP 115,000.00 - 84.87
NO PP 118,000.00 - 95.00
NO PP 103,000.00 - 71.36
NO PP 103,000.00 - 71.36
NO PP 174,000.00 170,400.00 75.00
NO PP 173,000.00 172,213.00 80.00
NO PP 70,000.00 - 70.46
NO PP 70,000.00 - 70.49
5Y PP 69,000.00 69,000.00 85.00
NO PP 255,000.00 - 14.51
NO PP 75,000.00 - 80.00
NO PP 93,000.00 93,000.00 94.95
NO PP 116,500.00 - 80.00
NO PP 71,000.00 68,000.00 100.00
NO PP 64,000.00 63,900.00 59.94
NO PP 75,000.00 73,000.00 95.00
NO PP 50,500.00 47,000.00 89.89
NO PP 600,000.00 - 70.00
NO PP 587,000.00 587,000.00 68.14
NO PP 90,000.00 - 92.22
NO PP 43,000.00 42,900.00 93.24
NO PP 505,000.00 - 79.21
NO PP 108,000.00 - 94.95
NO PP 142,000.00 - 80.00
NO PP 108,000.00 108,000.00 90.00
NO PP 55,000.00 - 95.00
NO PP 119,000.00 - 94.96
NO PP 575,000.00 - 67.83
NO PP 91,000.00 91,000.00 95.00
NO PP 225,000.00 225,000.00 80.00
NO PP 60,000.00 - 80.00
5Y PP 72,000.00 72,000.00 85.00
NO PP 126,000.00 126,000.00 80.00
NO PP 100,000.00 - 95.00
5Y PP 90,000.00 82,950.00 95.00
NO PP 60,000.00 60,000.00 80.00
5Y PP 165,000.00 155,000.00 80.00
NO PP 45,000.00 45,000.00 95.00
NO PP 61,280.00 - 79.96
NO PP 70,000.00 69,500.00 94.96
NO PP 208,887.00 208,887.00 80.00
NO PP 174,900.00 174,900.00 80.00
NO PP 465,000.00 - 79.57
NO PP 129,500.00 129,500.00 95.00
NO PP 159,000.00 - 65.41
NO PP 275,000.00 - 80.00
NO PP 130,000.00 - 82.08
NO PP 43,000.00 40,000.00 100.00
NO PP 1,170,000.00 1,165,270.00 75.00
NO PP 560,000.00 - 75.00
NO PP 236,000.00 - 65.00
NO PP 904,000.00 903,350.00 80.00
NO PP 525,000.00 525,000.00 80.00
NO PP 74,500.00 69,031.00 99.96
NO PP 900,000.00 - 35.00
NO PP 550,000.00 550,000.00 76.36
NO PP 125,000.00 - 47.20
NO PP 455,000.00 455,000.00 76.92
NO PP 400,000.00 400,000.00 80.00
NO PP 268,000.00 264,500.00 41.59
NO PP 69,000.00 68,500.00 95.00
NO PP 41,000.00 41,000.00 80.00
NO PP 135,000.00 135,000.00 95.00
NO PP 79,500.00 78,000.00 95.00
NO PP 145,000.00 - 88.28
NO PP 250,000.00 - 38.20
NO PP 76,000.00 - 86.84
NO PP 44,000.00 44,000.00 95.00
NO PP 87,000.00 - 92.53
NO PP 54,000.00 52,500.00 80.00
5Y PP 142,000.00 - 90.00
NO PP 150,000.00 150,000.00 85.00
5Y PP 950,000.00 950,000.00 80.00
5Y PP 625,000.00 625,000.00 80.00
5Y PP 725,000.00 - 70.00
5Y PP 499,000.00 - 80.00
5Y PP 610,000.00 - 80.00
5Y PP 1,060,000.00 1,060,000.00 56.60
5Y PP 148,000.00 148,000.00 95.00
NO PP 485,000.00 475,000.00 70.00
5Y PP 680,000.00 - 44.22
5Y PP 202,000.00 - 74.75
NO PP 254,000.00 254,000.00 80.00
NO PP 175,900.00 - 62.54
NO PP 292,000.00 - 91.10
NO PP 135,000.00 - 80.00
NO PP 47,000.00 47,000.00 80.00
NO PP 720,000.00 - 66.67
NO PP 58,000.00 53,500.00 75.00
NO PP 138,000.00 134,733.00 80.00
NO PP 62,000.00 60,000.00 80.00
NO PP 62,000.00 60,000.00 80.00
NO PP 113,500.00 113,300.00 80.00
NO PP 101,000.00 101,000.00 80.00
NO PP 109,000.00 109,000.00 80.00
NO PP 44,000.00 33,500.00 90.00
NO PP 102,500.00 102,488.00 80.00
NO PP 119,000.00 - 80.00
NO PP 101,000.00 101,000.00 80.00
NO PP 240,000.00 216,500.00 80.00
NO PP 180,000.00 174,557.00 79.80
NO PP 120,000.00 - 90.00
NO PP 117,000.00 - 69.91
NO PP 620,000.00 620,000.00 80.00
NO PP 72,000.00 - 79.17
NO PP 225,000.00 211,600.00 89.98
5Y PP 54,500.00 - 94.95
NO PP 70,300.00 - 89.97
NO PP 72,000.00 - 70.00
NO PP 153,000.00 146,900.00 79.99
5Y PP 62,000.00 60,700.00 94.98
5Y PP 78,000.00 68,175.00 77.74
5Y PP 69,000.00 65,000.00 95.00
NO PP 95,000.00 88,500.00 94.97
NO PP 167,000.00 167,000.00 80.00
NO PP 160,000.00 159,900.00 79.99
NO PP 168,000.00 165,500.00 94.98
NO PP 125,000.00 - 65.20
NO PP 135,000.00 132,500.00 94.98
5Y PP 45,000.00 46,000.00 95.00
5Y PP 224,000.00 216,000.00 95.00
5Y PP 186,000.00 - 56.45
NO PP 125,000.00 124,900.00 95.00
5Y PP 385,000.00 - 81.04
NO PP 109,000.00 109,000.00 95.00
NO PP 179,000.00 178,000.00 94.97
NO PP 135,500.00 - 86.35
NO PP 80,000.00 79,800.00 94.99
NO PP 90,000.00 86,500.00 94.97
5Y PP 75,000.00 72,500.00 94.97
NO PP 600,000.00 - 75.00
NO PP 176,000.00 175,000.00 95.00
5Y PP 107,000.00 105,490.00 94.99
NO PP 230,000.00 230,000.00 75.00
5Y PP 38,000.00 - 90.00
5Y PP 175,000.00 175,000.00 95.00
NO PP 295,000.00 270,000.00 90.00
NO PP 64,000.00 64,000.00 95.00
NO PP 215,000.00 - 90.00
NO PP 104,000.00 92,000.00 95.00
5Y PP 136,500.00 135,900.00 95.00
NO PP 325,000.00 - 78.46
NO PP 230,000.00 224,600.00 85.00
NO PP 55,000.00 55,000.00 95.00
5Y PP 395,000.00 392,198.00 94.99
5Y PP 42,000.00 35,000.00 90.00
NO PP 54,500.00 - 90.00
NO PP 77,000.00 - 32.21
NO PP 101,000.00 101,000.00 95.00
NO PP 208,000.00 207,500.00 95.00
NO PP 78,000.00 91,000.00 95.00
NO PP 42,000.00 42,000.00 95.00
NO PP 55,500.00 54,000.00 95.00
NO PP 65,200.00 65,200.00 95.00
NO PP 900,000.00 - 55.56
NO PP 88,000.00 86,000.00 95.00
NO PP 255,000.00 - 87.06
NO PP 137,000.00 135,000.00 95.00
NO PP 33,000.00 - 60.00
NO PP 86,000.00 86,000.00 95.00
NO PP 138,000.00 137,000.00 95.00
NO PP 68,000.00 66,900.00 94.99
NO PP 150,000.00 150,000.00 95.00
NO PP 209,000.00 207,000.00 95.00
NO PP 96,700.00 96,500.00 95.00
NO PP 238,000.00 237,000.00 95.00
NO PP 68,000.00 - 52.06
NO PP 150,000.00 156,900.00 95.00
NO PP 100,000.00 88,500.00 95.00
NO PP 240,000.00 - 95.00
NO PP 109,000.00 108,900.00 95.00
NO PP 125,000.00 - 90.00
NO PP 650,000.00 645,000.00 77.52
NO PP 135,000.00 - 90.00
NO PP 90,000.00 90,000.00 95.00
NO PP 160,000.00 159,900.00 95.00
NO PP 105,000.00 95,000.00 95.00
NO PP 90,500.00 - 80.00
NO PP 158,500.00 156,250.00 94.98
NO PP 75,000.00 68,150.00 79.97
NO PP 155,000.00 153,000.00 95.00
NO PP 74,000.00 68,900.00 94.99
NO PP 326,000.00 326,000.00 79.51
NO PP 285,015.02 - 89.89
NO PP 750,000.00 - 37.43
NO PP 96,000.00 - 55.21
NO PP 187,000.00 187,000.00 60.96
NO PP 148,900.00 148,900.00 79.99
NO PP 371,000.00 - 62.26
NO PP 455,000.00 455,000.00 65.93
NO PP 405,000.00 405,000.00 80.00
NO PP 282,000.00 280,897.00 95.00
NO PP 475,000.00 460,000.00 80.00
NO PP 400,000.00 395,000.00 63.29
NO PP 110,000.00 110,000.00 80.00
NO PP 445,000.00 445,000.00 80.00
NO PP 395,000.00 395,000.00 80.00
NO PP 350,000.00 - 81.49
NO PP 415,000.00 409,341.00 79.40
NO PP 325,150.00 325,150.00 80.00
NO PP 145,000.00 - 62.97
NO PP 187,500.00 - 70.00
NO PP 284,000.00 280,000.00 95.00
NO PP 95,000.00 95,000.00 80.00
NO PP 90,000.00 - 33.33
NO PP 140,000.00 - 65.71
NO PP 250,000.00 - 74.55
NO PP 99,000.00 98,900.00 80.00
NO PP 200,000.00 - 30.50
NO PP 208,000.00 - 57.69
NO PP 360,000.00 360,000.00 80.00
NO PP 297,000.00 297,000.00 80.00
NO PP 110,000.00 110,000.00 75.00
NO PP 80,000.00 80,000.00 75.00
NO PP 98,000.00 - 71.94
NO PP 50,000.00 45,000.00 75.00
NO PP 450,000.00 - 80.00
NO PP 470,000.00 - 68.09
NO PP 534,000.00 - 76.12
NO PP 450,000.00 450,000.00 74.44
NO PP 550,000.00 525,000.00 61.90
NO PP 438,000.00 432,500.00 80.00
NO PP 560,000.00 - 69.76
NO PP 430,000.00 425,000.00 80.00
NO PP 400,000.00 398,000.00 80.00
NO PP 565,000.00 - 61.95
NO PP 600,000.00 600,000.00 60.00
NO PP 425,000.00 425,000.00 79.33
NO PP 475,000.00 - 73.68
NO PP 562,500.00 - 61.33
NO PP 81,500.00 79,900.00 100.00
NO PP 113,000.00 112,470.47 90.00
NO PP 89,000.00 68,000.00 95.00
NO PP 145,000.00 145,000.00 90.00
NO PP 53,500.00 - 90.00
NO PP 133,000.00 132,000.00 90.00
NO PP 159,900.00 159,900.00 61.91
NO PP 66,000.00 66,000.00 90.00
NO PP 104,000.00 104,000.00 90.00
NO PP 60,000.00 59,500.00 80.00
NO PP 95,000.00 95,000.00 80.00
NO PP 162,000.00 - 37.04
NO PP 95,000.00 95,590.00 95.00
NO PP 60,000.00 60,000.00 90.00
NO PP 194,000.00 194,000.00 80.00
NO PP 118,000.00 115,000.00 90.00
NO PP 113,500.00 113,500.00 90.00
NO PP 188,000.00 185,000.00 72.97
NO PP 69,000.00 67,400.00 94.96
NO PP 71,500.00 71,500.00 80.00
NO PP 59,000.00 59,000.00 90.00
NO PP 68,000.00 65,500.00 80.00
NO PP 120,000.00 120,000.00 87.50
NO PP 115,000.00 113,000.00 80.00
NO PP 124,000.00 119,900.00 89.99
NO PP 136,000.00 134,500.00 74.35
NO PP 120,000.00 - 58.33
NO PP 77,000.00 76,300.00 95.00
NO PP 175,000.00 171,500.00 80.00
NO PP 84,000.00 - 79.17
NO PP 92,000.00 - 90.00
NO PP 36,000.00 - 80.00
NO PP 175,000.00 175,000.00 90.00
NO PP 120,000.00 120,000.00 80.00
NO PP 60,000.00 58,000.00 90.00
NO PP 74,000.00 74,000.00 90.00
NO PP 78,000.00 74,400.00 89.99
NO PP 70,000.00 69,900.00 94.99
NO PP 222,000.00 206,400.00 94.99
NO PP 87,000.00 87,000.00 80.00
NO PP 92,500.00 92,500.00 90.00
NO PP 74,000.00 - 79.86
NO PP 160,000.00 - 80.00
NO PP 185,000.00 184,850.00 79.44
NO PP 111,000.00 98,000.00 95.00
NO PP 116,000.00 112,000.00 90.00
NO PP 97,000.00 - 69.07
NO PP 100,000.00 - 80.00
NO PP 42,000.00 42,000.00 80.00
NO PP 425,000.00 425,000.00 80.00
NO PP 61,000.00 - 80.00
NO PP 94,500.00 90,000.00 90.00
NO PP 96,000.00 104,000.00 57.29
NO PP 99,000.00 80,000.00 62.50
NO PP 50,000.00 50,000.00 80.00
NO PP 154,000.00 - 95.00
NO PP 39,000.00 - 83.33
NO PP 85,000.00 83,000.00 90.00
NO PP 160,000.00 155,000.00 45.16
NO PP 350,000.00 347,900.00 43.09
NO PP 131,000.00 131,000.00 90.00
NO PP 87,900.00 - 62.57
NO PP 116,000.00 110,000.00 90.00
NO PP 123,000.00 120,000.00 90.00
NO PP 69,267.00 - 79.98
NO PP 138,000.00 - 86.96
NO PP 135,000.00 135,000.00 95.00
NO PP 100,000.00 97,000.00 90.00
NO PP 82,000.00 - 80.00
NO PP 113,000.00 111,500.00 64.13
NO PP 49,000.00 - 80.00
NO PP 64,000.00 64,000.00 95.00
NO PP 53,000.00 53,000.00 75.00
NO PP 40,000.00 40,000.00 75.00
NO PP 168,000.00 - 79.76
NO PP 338,000.00 337,400.00 80.00
NO PP 295,000.00 293,900.00 80.00
NO PP 295,000.00 295,000.00 95.00
NO PP 410,000.00 370,000.00 80.00
NO PP 292,000.00 292,797.80 90.00
NO PP 80,000.00 80,000.00 90.00
NO PP 95,000.00 95,000.00 90.00
5Y PP 809,000.00 757,500.00 80.00
5Y PP 80,000.00 79,900.00 89.99
NO PP 143,000.00 131,500.00 90.00
NO PP 189,000.00 189,000.00 90.00
NO PP 107,500.00 105,800.00 75.61
NO PP 67,000.00 - 80.00
NO PP 150,000.00 135,000.00 90.00
NO PP 110,000.00 110,000.00 90.00
NO PP 61,000.00 61,000.00 80.00
NO PP 137,500.00 137,500.00 90.00
NO PP 179,000.00 165,000.00 95.00
NO PP 68,000.00 68,000.00 80.00
NO PP 47,000.00 47,000.00 90.00
NO PP 105,000.00 - 81.43
NO PP 198,000.00 198,000.00 77.58
NO PP 192,000.00 169,000.00 70.00
NO PP 162,000.00 - 80.00
NO PP 194,000.00 - 80.00
NO PP 145,000.00 - 42.90
NO PP 350,000.00 - 80.00
NO PP 65,000.00 - 70.00
NO PP 118,000.00 116,000.00 51.72
NO PP 300,000.00 - 75.00
NO PP 90,000.00 - 76.06
NO PP 155,000.00 - 80.00
5Y PP 120,000.00 118,000.00 90.00
NO PP 77,500.00 77,380.00 89.95
NO PP 102,500.00 102,500.00 90.00
NO PP 195,000.00 - 78.97
NO PP 169,000.00 163,500.00 90.00
5Y PP 145,000.00 142,000.00 90.00
NO PP 580,000.00 - 40.52
NO PP 400,000.00 382,340.00 86.82
NO PP 290,000.00 - 72.41
NO PP 380,000.00 379,900.00 80.00
NO PP 550,000.00 550,000.00 80.00
NO PP 71,000.00 71,000.00 90.00
NO PP 400,000.00 400,000.00 90.00
NO PP 135,000.00 130,000.00 76.92
NO PP 120,000.00 120,000.00 97.00
NO PP 585,000.00 585,000.00 80.00
NO PP 550,000.00 - 77.82
NO PP 900,000.00 995,000.00 38.89
NO PP 942,000.00 942,000.00 46.71
NO PP 225,000.00 - 44.44
NO PP 230,000.00 - 40.78
NO PP 250,000.00 - 50.00
NO PP 2,700,000.00 - 66.67
NO PP 810,000.00 810,000.00 70.99
NO PP 79,000.00 70,000.00 57.14
NO PP 292,000.00 292,000.00 80.00
NO PP 475,000.00 - 16.84
NO PP 860,000.00 860,000.00 80.00
NO PP 710,000.00 710,000.00 80.00
NO PP 393,000.00 392,500.00 90.00
NO PP 695,000.00 707,000.00 64.75
NO PP 158,000.00 - 69.62
NO PP 185,000.00 185,013.88 54.05
NO PP 184,000.00 - 76.09
NO PP 470,000.00 - 80.00
NO PP 225,000.00 - 80.00
NO PP 122,000.00 100,000.00 95.00
NO PP 475,000.00 475,000.00 80.00
NO PP 80,500.00 80,500.00 80.00
NO PP 110,000.00 - 63.64
NO PP 1,100,000.00 - 40.27
NO PP 700,000.00 700,000.00 80.00
NO PP 400,000.00 - 67.50
NO PP 790,000.00 - 69.62
NO PP 435,000.00 - 51.72
NO PP 2,700,000.00 - 33.33
NO PP 328,000.00 - 79.27
NO PP 480,000.00 - 80.00
NO PP 390,000.00 390,007.38 94.87
NO PP 185,000.00 185,000.00 78.38
NO PP 320,000.00 295,008.77 62.71
NO PP 646,000.00 640,000.00 80.00
NO PP 650,000.00 649,972.63 73.08
NO PP 90,000.00 90,000.00 94.44
NO PP 575,000.00 - 72.17
NO PP 700,000.00 - 70.00
NO PP 650,000.00 - 72.31
NO PP 180,000.00 - 53.89
NO PP 125,000.00 - 70.40
NO PP 166,000.00 - 93.49
NO PP 728,000.00 727,000.00 80.00
NO PP 647,000.00 - 68.78
NO PP 1,605,000.00 1,605,000.00 45.17
NO PP 270,000.00 - 59.63
NO PP 250,000.00 - 70.00
NO PP 2,800,000.00 - 35.71
NO PP 193,000.00 - 77.72
NO PP 675,000.00 650,000.00 80.00
NO PP 805,000.00 770,000.00 48.70
NO PP 187,000.00 185,000.00 75.68
NO PP 800,000.00 - 70.12
NO PP 320,000.00 307,000.00 79.80
NO PP 1,200,000.00 1,175,000.00 80.00
NO PP 260,000.00 - 57.69
NO PP 480,000.00 - 54.17
NO PP 710,000.00 - 80.00
NO PP 570,000.00 - 74.56
NO PP 200,000.00 197,000.00 80.00
NO PP 120,000.00 - 66.67
NO PP 1,900,000.00 1,900,000.00 47.37
NO PP 525,000.00 - 76.19
NO PP 580,000.00 - 58.97
NO PP 80,000.00 76,000.00 60.53
NO PP 123,000.00 122,499.47 94.98
NO PP 360,000.00 360,000.00 90.00
NO PP 534,000.00 524,900.00 80.00
NO PP 640,000.00 630,000.00 79.37
NO PP 1,500,000.00 1,499,925.00 66.67
NO PP 740,000.00 740,000.00 60.81
NO PP 545,000.00 545,000.00 75.23
NO PP 126,000.00 124,500.00 80.00
NO PP 880,000.00 - 65.95
NO PP 263,000.00 263,000.00 94.87
NO PP 750,000.00 - 73.33
NO PP 800,000.00 785,000.00 55.41
NO PP 500,000.00 - 80.00
NO PP 250,000.00 251,808.00 60.00
NO PP 195,000.00 - 69.23
NO PP 425,000.00 425,000.00 29.41
NO PP 240,000.00 239,900.00 79.99
NO PP 760,000.00 - 78.95
NO PP 75,000.00 71,996.56 93.06
NO PP 89,000.00 79,900.00 79.97
NO PP 1,270,000.00 1,199,940.00 66.67
NO PP 510,000.00 505,438.18 79.99
NO PP 560,000.00 - 62.14
NO PP 400,000.00 - 45.00
NO PP 420,000.00 - 71.43
NO PP 500,000.00 489,000.00 61.35
NO PP 460,000.00 - 80.00
NO PP 270,000.00 - 77.78
NO PP 535,000.00 - 62.80
NO PP 465,000.00 - 49.03
NO PP 1,370,000.00 1,366,830.00 73.16
NO PP 530,000.00 - 75.00
NO PP 675,000.00 - 59.26
NO PP 235,000.00 - 55.32
NO PP 2,244,000.00 - 60.16
NO PP 550,000.00 - 50.00
NO PP 890,000.00 - 78.65
NO PP 276,000.00 276,000.00 80.00
NO PP 500,000.00 - 80.00
NO PP 175,000.00 - 62.86
NO PP 121,823.00 121,823.00 79.95
NO PP 595,000.00 593,500.00 74.73
NO PP 735,000.00 - 73.47
NO PP 745,000.00 745,000.00 80.00
NO PP 120,000.00 89,900.00 66.63
NO PP 245,000.00 - 65.31
NO PP 1,300,000.00 1,275,022.31 78.43
NO PP 260,000.00 - 67.31
NO PP 495,000.00 450,000.00 77.78
NO PP 300,000.00 - 25.00
NO PP 300,000.00 300,000.00 80.00
NO PP 320,000.00 - 31.25
NO PP 385,000.00 - 36.36
NO PP 497,000.00 497,000.00 80.00
NO PP 226,000.00 226,000.00 79.65
NO PP 115,000.00 - 79.13
NO PP 175,000.00 175,011.41 65.71
NO PP 350,000.00 - 51.43
NO PP 243,000.00 240,985.00 78.84
NO PP 300,000.00 - 80.00
NO PP 290,000.00 290,000.00 80.00
NO PP 330,000.00 - 39.39
NO PP 210,000.00 - 71.43
NO PP 1,010,000.00 - 49.80
NO PP 235,000.00 235,000.00 90.00
NO PP 103,000.00 103,000.00 80.00
NO PP 170,000.00 168,750.00 80.00
NO PP 700,000.00 - 60.00
NO PP 153,000.00 - 59.15
NO PP 359,000.00 359,000.00 76.60
NO PP 650,000.00 650,000.00 80.00
NO PP 257,000.00 257,000.00 80.00
NO PP 1,950,000.00 - 25.64
NO PP 670,000.00 661,258.06 89.98
NO PP 545,000.00 535,000.00 80.00
NO PP 540,000.00 - 79.81
NO PP 260,000.00 260,000.00 80.00
NO PP 311,000.00 - 51.45
NO PP 178,000.00 169,003.51 79.88
NO PP 400,000.00 - 77.50
NO PP 207,000.00 205,000.00 95.00
NO PP 195,000.00 194,211.78 79.99
NO PP 123,000.00 122,500.00 80.00
NO PP 255,000.00 200,000.00 70.00
NO PP 242,000.00 234,900.00 79.99
NO PP 480,000.00 479,994.05 67.23
NO PP 175,000.00 - 45.71
NO PP 415,000.00 - 45.78
NO PP 1,300,000.00 1,245,000.00 80.00
NO PP 1,400,000.00 - 57.79
NO PP 315,000.00 - 79.37
NO PP 70,000.00 55,000.00 80.00
NO PP 56,000.00 54,997.94 72.73
NO PP 260,000.00 - 52.69
NO PP 133,000.00 130,000.00 90.00
NO PP 820,000.00 805,000.00 80.00
NO PP 163,000.00 - 53.99
NO PP 220,000.00 - 63.64
NO PP 205,000.00 - 73.17
NO PP 550,000.00 - 75.45
NO PP 1,065,000.00 1,065,500.00 75.12
NO PP 515,000.00 513,400.00 80.00
NO PP 755,000.00 - 60.93
NO PP 300,000.00 - 68.87
NO PP 320,000.00 - 76.25
NO PP 360,000.00 - 80.00
NO PP 185,000.00 - 79.46
NO PP 280,000.00 - 44.64
NO PP 376,000.00 375,988.04 46.81
NO PP 320,000.00 - 65.03
NO PP 325,000.00 - 50.77
NO PP 1,900,000.00 1,875,000.00 80.00
NO PP 765,000.00 750,000.00 80.00
NO PP 485,000.00 485,000.00 61.86
NO PP 150,000.00 80,495.31 41.59
NO PP 295,000.00 - 63.68
NO PP 565,000.00 - 80.00
NO PP 790,000.00 790,014.22 63.29
NO PP 880,000.00 875,000.00 57.14
NO PP 82,000.00 82,000.00 50.00
NO PP 125,000.00 - 61.76
NO PP 603,000.00 - 33.17
NO PP 225,000.00 225,000.00 80.00
NO PP 575,000.00 - 73.91
NO PP 520,000.00 - 70.19
NO PP 127,000.00 127,000.00 80.00
NO PP 260,000.00 - 53.85
NO PP 605,000.00 - 24.79
NO PP 825,000.00 815,000.00 80.00
NO PP 950,000.00 - 31.05
NO PP 215,000.00 - 65.12
NO PP 110,000.00 110,000.00 80.00
NO PP 128,000.00 126,900.00 79.98
NO PP 520,000.00 - 76.92
NO PP 400,000.00 - 44.25
NO PP 155,000.00 154,818.00 77.51
NO PP 700,000.00 - 80.00
NO PP 288,000.00 239,989.90 79.17
NO PP 165,000.00 - 60.61
NO PP 1,450,000.00 1,440,000.00 80.00
NO PP 275,000.00 - 80.00
NO PP 820,000.00 818,500.00 80.00
NO PP 450,000.00 449,943.76 35.56
NO PP 760,000.00 - 65.79
NO PP 165,000.00 - 46.06
NO PP 3,750,000.00 - 53.33
NO PP 380,000.00 - 65.79
NO PP 260,000.00 - 80.00
NO PP 500,000.00 - 73.00
NO PP 58,000.00 58,000.25 79.31
NO PP 255,000.00 - 56.47
NO PP 775,000.00 712,500.00 80.00
NO PP 205,000.00 205,000.00 80.00
NO PP 246,000.00 246,000.00 80.00
NO PP 428,000.00 427,960.06 35.05
NO PP 890,000.00 849,076.63 47.11
NO PP 53,000.00 40,000.00 90.00
NO PP 525,000.00 475,000.00 80.00
NO PP 280,000.00 - 77.14
NO PP 510,000.00 507,498.86 66.01
NO PP 126,000.00 125,000.00 80.00
NO PP 115,500.00 - 74.89
NO PP 120,000.00 - 75.00
NO PP 485,000.00 - 80.00
NO PP 630,000.00 - 63.49
NO PP 720,000.00 715,197.96 78.30
NO PP 1,500,000.00 1,500,000.00 80.00
NO PP 467,000.00 - 58.89
NO PP 800,000.00 - 60.00
NO PP 1,600,000.00 - 53.13
NO PP 115,000.00 115,000.00 90.00
NO PP 3,500,000.00 - 42.86
NO PP 530,000.00 525,200.00 80.00
NO PP 900,000.00 900,000.00 80.00
NO PP 1,750,000.00 1,494,899.75 56.86
NO PP 600,000.00 - 79.17
NO PP 130,000.00 - 80.00
NO PP 500,000.00 - 75.00
NO PP 120,000.00 - 72.50
NO PP 170,000.00 170,000.00 91.18
NO PP 475,000.00 - 31.58
NO PP 130,000.00 - 73.08
NO PP 2,200,000.00 - 20.18
NO PP 210,000.00 - 76.19
NO PP 475,000.00 450,000.00 90.00
NO PP 380,000.00 - 65.79
NO PP 318,000.00 279,130.00 77.03
NO PP 875,000.00 - 77.71
NO PP 3,000,000.00 - 66.67
NO PP 209,938.00 209,937.50 80.00
NO PP 425,000.00 - 68.24
NO PP 1,550,000.00 - 64.52
NO PP 90,000.00 89,000.00 89.89
NO PP 630,000.00 602,174.00 77.35
NO PP 2,000,000.00 2,000,000.00 75.00
NO PP 667,000.00 667,000.17 59.97
NO PP 83,000.00 82,499.21 94.91
NO PP 315,000.00 - 89.84
NO PP 222,000.00 - 58.56
NO PP 825,000.00 - 49.82
NO PP 359,000.00 358,985.16 94.99
NO PP 325,000.00 - 46.15
NO PP 290,000.00 289,913.70 74.16
NO PP 295,000.00 - 57.63
NO PP 129,000.00 127,000.00 90.00
NO PP 800,000.00 - 51.88
NO PP 2,250,000.00 2,250,000.00 75.00
NO PP 2,100,000.00 2,150,000.00 71.43
NO PP 1,000,000.00 - 50.00
NO PP 620,000.00 - 68.55
NO PP 865,000.00 865,000.00 75.14
NO PP 825,000.00 - 72.12
NO PP 580,000.00 590,425.00 80.00
NO PP 302,000.00 300,150.00 79.61
NO PP 450,000.00 - 80.00
NO PP 545,000.00 580,000.00 80.00
NO PP 775,000.00 775,000.00 80.00
NO PP 487,000.00 - 79.96
NO PP 1,200,000.00 - 72.50
NO PP 690,000.00 - 57.97
NO PP 518,000.00 518,000.00 80.00
NO PP 580,000.00 - 67.24
NO PP 650,000.00 630,000.00 80.00
NO PP 715,000.00 - 67.83
NO PP 713,000.00 713,000.00 70.13
NO PP 200,000.00 - 74.00
NO PP 658,000.00 612,500.00 67.35
NO PP 668,000.00 664,000.00 80.00
NO PP 310,000.00 310,000.00 79.03
NO PP 3,150,000.00 - 61.22
NO PP 580,000.00 579,000.00 79.45
NO PP 510,000.00 - 77.65
NO PP 925,000.00 920,000.00 80.00
NO PP 455,000.00 - 80.00
NO PP 600,000.00 - 80.00
NO PP 915,000.00 - 54.64
NO PP 445,000.00 445,000.00 89.89
NO PP 605,000.00 599,000.00 66.61
NO PP 826,000.00 826,000.00 80.00
NO PP 550,000.00 - 69.09
NO PP 522,000.00 522,000.00 80.00
NO PP 1,100,000.00 1,100,000.00 54.55
NO PP 475,000.00 - 84.21
NO PP 1,300,000.00 1,249,000.00 80.00
NO PP 825,000.00 825,000.00 75.76
NO PP 520,000.00 506,100.00 79.98
NO PP 750,000.00 - 62.67
NO PP 560,000.00 - 66.16
NO PP 765,000.00 759,000.00 72.46
NO PP 525,000.00 - 68.50
NO PP 490,000.00 483,593.00 88.42
NO PP 209,000.00 209,000.00 80.00
NO PP 650,000.00 650,000.00 80.00
NO PP 810,000.00 810,000.00 61.73
NO PP 650,000.00 650,000.00 80.00
NO PP 882,500.00 877,500.00 80.00
NO PP 535,000.00 532,000.00 80.00
NO PP 590,000.00 590,000.00 80.00
NO PP 510,000.00 - 78.63
COMBO_LTV MI MI_PCT MI_CERT1
--------- ---- ------ --------
90.00 Radian Guaranty 30 96198388
100.00 No MI 0
88.78 Radian Guaranty 25 91078322
90.00 Radian Guaranty 30 24529575
89.99 Radian Guaranty 30 70028051
89.83 Radian Guaranty 30 96204164
80.00 No MI 0
89.99 Radian Guaranty 30 96199401
89.98 Radian Guaranty 30 70028074
60.99 No MI 0
90.00 Radian Guaranty 30 96204018
80.00 No MI 0
80.00 No MI 0
93.49 Radian Guaranty 25 96206772
90.00 Radian Guaranty 30 96206609
68.53 No MI 0
80.00 No MI 0
94.09 No MI 0
39.47 No MI 0
57.00 No MI 0
80.00 No MI 0
100.00 No MI 0
100.00 No MI 0
99.54 Radian Guaranty 35 96221684
90.00 Radian Guaranty 30 96206140
75.00 No MI 0
75.00 No MI 0
84.29 Radian Guaranty 25 96217309
90.00 Radian Guaranty 30 96200414
77.63 No MI 0
90.00 Radian Guaranty 30 96217433
95.00 Radian Guaranty 35 96227838
90.00 Radian Guaranty 30 91159802
85.71 Radian Guaranty 30 96203361
90.00 No MI 0
92.90 No MI 0
96.21 No MI 0
89.86 GE Capital MI 25 9677154702
80.00 No MI 0
35.56 No MI 0
32.96 No MI 0
61.16 No MI 0
62.19 No MI 0
75.00 No MI 0
79.89 No MI 0
80.00 No MI 0
80.00 No MI 0
90.00 Radian Guaranty 25 91091919
85.00 PMI 12 93324862
90.00 PMI 25 93261836
80.00 No MI 0
75.00 No MI 0
90.00 PMI 25 93055659
89.97 Republic MIC 25 112844102
80.00 No MI 0
75.00 No MI 0
90.00 Radian Guaranty 25
95.00 PMI 25 93243137
90.00 PMI 25
75.00 No MI 0
80.00 No MI 0
47.84 No MI 0
71.17 No MI 0
77.81 No MI 0
75.00 No MI 0
69.74 No MI 0
80.00 No MI 0
94.83 No MI 0
89.90 Mortgage Guaranty In 25 14911083
80.00 No MI 0
94.98 Radian Guaranty 30 9129354
94.98 Radian Guaranty 30 9129339
84.99 Radian Guaranty 25 96231637
93.51 Radian Guaranty 30 96234760
71.67 No MI 0
66.67 No MI 0
95.00 Radian Guaranty 35 96232103
95.00 Radian Guaranty 35 91162894
95.00 Radian Guaranty 35 91161278
95.00 Radian Guaranty 35 96234647
79.98 No MI 0
79.98 No MI 0
95.00 Radian Guaranty 35 96238286
95.00 Radian Guaranty 35 91108031
82.86 Radian Guaranty 25 96224045
68.95 No MI 0
90.00 Radian Guaranty 25 91174539
70.00 No MI 0
94.96 PMI 30
90.00 PMI 25
90.00 PMI 25
95.00 PMI 30
94.98 PMI 30
95.00 PMI 30
95.00 PMI 30
90.00 PMI 25
84.81 GE Capital MI 12 9677520296
85.00 Radian Guaranty 12 91171784
85.00 Radian Guaranty 12 91175134
71.88 No MI 0
79.37 No MI 0
95.00 No MI 0
97.00 Radian Guaranty 35 9530201
95.31 No MI 0
93.27 No MI 0
90.00 United Guaranty 25
49.18 No MI 0
75.00 No MI 0
75.00 No MI 0
75.00 No MI 0
75.00 No MI 0
75.00 No MI 0
90.00 Republic MIC 25
75.00 No MI 0
75.00 No MI 0
75.00 No MI 0
79.90 No MI 0
90.00 Mortgage Guaranty In 25
90.00 Republic MIC 25
80.00 No MI 0
75.00 No MI 0
80.00 No MI 0
69.11 No MI 0
75.00 No MI 0
80.00 No MI 0
100.00 No MI 0
100.00 No MI 0
100.00 No MI 0
100.00 No MI 0
100.00 No MI 0
100.00 No MI 0
100.00 No MI 0
100.00 No MI 0
100.00 No MI 0
100.00 No MI 0
100.00 No MI 0
100.00 No MI 0
100.00 No MI 0
100.00 No MI 0
100.00 No MI 0
89.84 No MI 0
90.00 Mortgage Guaranty In 30 15332074
95.00 No MI 0
89.86 No MI 0
89.90 No MI 0
95.00 No MI 0
80.00 No MI 0
96.99 No MI 0
95.00 No MI 0
89.99 Radian Guaranty 25 91228932
90.00 No MI 0
100.00 No MI 0
43.41 No MI 0
94.99 No MI 0
89.87 No MI 0
95.00 No MI 0
89.90 No MI 0
69.57 No MI 0
64.29 No MI 0
95.00 No MI 0
95.00 Radian Guaranty 30 91244832
90.00 Radian Guaranty 25 91244755
80.00 PMI 6 96373813
80.00 No MI 0
80.00 No MI 0
82.14 Radian Guaranty 12 91255214
95.00 Radian Guaranty 35 96273585
80.00 No MI 0
80.00 No MI 0
80.00 No MI 0
80.00 No MI 0
70.00 No MI 0
80.00 No MI 0
37.81 No MI 0
90.00 No MI 0
70.00 No MI 0
68.18 No MI 0
88.96 PMI 25 49132263
70.00 No MI 0
90.00 PMI 25 49132433
94.95 PMI 30 44988143
90.00 PMI 25 44987996
79.19 No MI 0
79.95 No MI 0
54.17 No MI 0
71.91 No MI 0
61.90 No MI 0
90.00 Radian Guaranty 25 91270251
65.63 No MI 0
85.00 Mortgage Guaranty In 12 16411567
77.84 No MI 0
70.00 No MI 0
80.00 No MI 0
60.00 No MI 0
55.85 No MI 0
93.66 Mortgage Guaranty In 30 16819300
76.43 No MI 0
70.00 No MI 0
95.00 No MI 0
73.64 No MI 0
95.00 Mortgage Guaranty In 30 16962411
100.00 No MI 0
41.42 No MI 0
39.90 No MI 0
80.00 No MI 0
74.99 No MI 0
79.00 No MI 0
89.74 Mortgage Guaranty In 25 17086879
95.00 Mortgage Guaranty In 30 16872608
80.00 No MI 0
90.00 Radian Guaranty 35 94462945
80.00 No MI 0
90.00 Republic MIC 25 21775323
89.25 No MI 0
84.87 PMI 12 48605915
95.00 Mortgage Guaranty In 30 16994658
71.36 No MI 0
71.36 No MI 0
75.00 No MI 0
80.00 No MI 0
70.46 No MI 0
70.49 No MI 0
85.00 No MI 0
14.51 No MI 0
80.00 No MI 0
94.95 Triad Guaranty 30 227163
80.00 No MI 0
100.00 No MI 0
59.94 No MI 0
95.00 Triad Guaranty 30 224646
89.89 No MI 0
70.00 No MI 0
90.00 No MI 0
92.22 No MI 0
93.24 No MI 0
79.21 No MI 0
94.95 Mortgage Guaranty In 30 17122147
80.00 No MI 0
90.00 Mortgage Guaranty In 25 17101568
95.00 Mortgage Guaranty In 25 17083510
94.96 Mortgage Guaranty In 30 17144501
67.83 Mortgage Guaranty In 25 17255037
95.00 Republic MIC 30 217953137
100.00 No MI 0
80.00 No MI 0
100.00 No MI 0
95.00 No MI 0
95.00 Republic MIC 30 216202009
95.00 No MI 0
80.00 No MI 0
100.00 No MI 0
95.00 No MI 0
99.95 No MI 0
94.96 Republic MIC 30 215702040
80.00 No MI 0
80.00 No MI 0
79.57 No MI 0
95.00 No MI 0
65.41 No MI 0
80.00 No MI 0
82.08 Radian Guaranty 12 94851447
100.00 Radian Guaranty 35 94463298
75.00 No MI 0
75.00 No MI 0
65.00 No MI 0
89.99 No MI 0
80.00 No MI 0
99.96 Radian Guaranty 35 94857628
51.67 No MI 0
76.36 No MI 0
47.20 No MI 0
76.92 No MI 0
80.00 No MI 0
41.59 No MI 0
95.00 PMI 30 48619541
80.00 No MI 0
95.00 GE Capital MI 30 9679288188
95.00 United Guaranty 30 5847844
88.28 Mortgage Guaranty In 25 17148365
38.20 No MI 0
86.84 Mortgage Guaranty In 25 17240187
95.00 No MI 0
92.53 Mortgage Guaranty In 30 17143271
95.00 No MI 0
90.00 Mortgage Guaranty In 25 16877565
85.00 Mortgage Guaranty In 12 16637538
80.00 No MI 0
80.00 No MI 0
70.00 No MI 0
80.00 No MI 0
90.00 No MI 0
56.60 No MI 0
95.00 Radian Guaranty 30 94847245
70.00 No MI 0
44.22 No MI 0
74.75 No MI 0
95.00 No MI 0
62.54 No MI 0
91.10 Mortgage Guaranty In 30 17334633
80.00 No MI 0
80.00 No MI 0
66.67 No MI 0
93.69 No MI 0
100.00 No MI 0
100.00 No MI 0
100.00 No MI 0
99.95 No MI 0
95.00 No MI 0
100.00 No MI 0
90.00 Triad Guaranty 30 24292
100.00 No MI 0
80.00 No MI 0
80.00 No MI 0
95.00 No MI 0
99.75 No MI 0
90.00 Mortgage Guaranty In 25 17294944
69.91 No MI 0
80.00 No MI 0
79.17 No MI 0
89.98 Republic MIC 25 221002016
94.95 Republic MIC 30 219602064
89.97 Republic MIC 25 220402001
70.00 No MI 0
100.00 No MI 0
94.98 Republic MIC 30 219302002
100.00 No MI 0
95.00 Republic MIC 30 219802005
94.97 Republic MIC 30 220502036
100.00 No MI 0
99.97 No MI 0
94.98 Mortgage Guaranty In 35 16951163
65.20 No MI 0
94.98 Radian Guaranty 35 96309461
95.00 Radian Guaranty 35 94855544
95.00 Radian Guaranty 35 96309921
56.45 No MI 0
95.00 Mortgage Guaranty In 35 16931260
81.04 Mortgage Guaranty In 12 16895823
95.00 Radian Guaranty 35 94857462
94.97 Radian Guaranty 35 96312761
86.35 Radian Guaranty 30 96309961
94.99 Radian Guaranty 35 96310642
94.97 GE Capital MI 35 96312782
94.97 Radian Guaranty 35 96312965
75.00 No MI 0
95.00 Radian Guaranty 35 94862042
94.99 Radian Guaranty 35 96311954
100.00 No MI 0
90.00 Radian Guaranty 30 96309710
95.00 Radian Guaranty 30 96307736
90.00 Mortgage Guaranty In 30 16803254
95.00 Radian Guaranty 35 96309590
90.00 Radian Guaranty 30 96313469
95.00 Radian Guaranty 35 96311645
95.00 Republic MIC 35 217939011
78.46 No MI 0
85.00 Radian Guaranty 25 96312144
95.00 Radian Guaranty 35 96312107
94.99 Mortgage Guaranty In 35 16979698
90.00 Radian Guaranty 30 96307517
90.00 Mortgage Guaranty In 25 16795834
32.21 No MI 0
95.00 PMI 30 49249161
95.00 PMI 30 49249411
95.00 Mortgage Guaranty In 30 16795880
95.00 Mortgage Guaranty In 30 16795881
95.00 PMI 30 49250321
95.00 PMI 30 49249829
55.56 No MI 0
95.00 PMI 30 49249373
87.06 PMI 25 49248920
95.00 PMI 30 49249233
60.00 No MI 0
95.00 Mortgage Guaranty In 30 16795844
95.00 Mortgage Guaranty In 30 16795866
94.99 PMI 30 49249471
95.00 PMI 30 49249969
95.00 PMI 30 49249616
95.00 Mortgage Guaranty In 30 16795841
95.00 PMI 30 49262213
52.06 No MI 0
95.00 PMI 30 49261934
95.00 PMI 30 49261764
95.00 PMI 30 49261241
95.00 PMI 30 49261489
90.00 PMI 25 49261306
77.52 No MI 0
90.00 PMI 25 49262159
95.00 PMI 30 49261551
95.00 PMI 30 49261047
95.00 PMI 30 49261993
80.00 No MI 0
94.98 PMI 30 49261331
79.97 No MI 0
95.00 PMI 30 49260458
94.99 PMI 30 49262388
79.51 No MI 0
89.89 Radian Guaranty 25
37.43 No MI 0
55.21 No MI 0
60.96 No MI 0
79.99 No MI 0
62.26 No MI 0
65.93 No MI 0
80.00 No MI 0
95.00 United Guaranty 30
80.00 No MI 0
63.29 No MI 0
80.00 No MI 0
80.00 No MI 0
80.00 No MI 0
81.49 United Guaranty 6
79.40 No MI 0
80.00 No MI 0
62.97 No MI 0
70.00 No MI 0
95.00 United Guaranty 30
80.00 No MI 0
33.33 No MI 0
65.71 No MI 0
74.55 No MI 0
80.00 No MI 0
30.50 No MI 0
57.69 No MI 0
80.00 No MI 0
80.00 No MI 0
75.00 No MI 0
75.00 No MI 0
71.94 No MI 0
75.00 No MI 0
80.00 No MI 0
68.09 No MI 0
76.12 No MI 0
74.44 No MI 0
61.90 No MI 0
80.00 No MI 0
69.76 No MI 0
80.00 No MI 0
80.00 No MI 0
61.95 No MI 0
60.00 No MI 0
79.33 No MI 0
73.68 No MI 0
61.33 No MI 0
100.00 United Guaranty 35 5296348
90.00 Radian Guaranty 30
95.00 Radian Guaranty 30
90.00 Radian Guaranty 30
90.00 Radian Guaranty 30
90.00 Radian Guaranty 30
61.91 No MI 0
90.00 Radian Guaranty 30
90.00 Radian Guaranty 30
80.00 No MI 0
80.00 No MI 0
37.04 No MI 0
95.00 Radian Guaranty 30
90.00 Radian Guaranty 30
80.00 No MI 0
90.00 Radian Guaranty 30
90.00 Radian Guaranty 30
72.97 No MI 0
94.96 Radian Guaranty 30
80.00 No MI 0
90.00 Radian Guaranty 30
80.00 No MI 0
87.50 Radian Guaranty 30
80.00 No MI 0
89.99 Radian Guaranty 30
74.35 No MI 0
58.33 No MI 0
95.00 Radian Guaranty 30
80.00 No MI 0
79.17 No MI 0
90.00 Radian Guaranty 30
80.00 No MI 0
90.00 Radian Guaranty 30
80.00 No MI 0
90.00 Radian Guaranty 30
90.00 Radian Guaranty 30
89.99 Radian Guaranty 30
94.99 Radian Guaranty 30
94.99 Radian Guaranty 30
100.00 No MI 0
90.00 Radian Guaranty 30
79.86 No MI 0
80.00 No MI 0
79.44 No MI 0
95.00 Radian Guaranty 30
90.00 Radian Guaranty 30
69.07 No MI 0
80.00 No MI 0
80.00 No MI 0
80.00 No MI 0
80.00 No MI 0
90.00 Republic MIC 30
57.29 No MI 0
62.50 No MI 0
80.00 No MI 0
95.00 Radian Guaranty 30
83.33 Radian Guaranty 22
90.00 Radian Guaranty 30
67.74 No MI 0
43.09 No MI 0
90.00 Radian Guaranty 30
62.57 No MI 0
90.00 Radian Guaranty 30
90.00 Radian Guaranty 30
79.98 No MI 0
86.96 Radian Guaranty 22
95.00 Radian Guaranty 30
90.00 Radian Guaranty 30
80.00 No MI 0
64.13 No MI 0
80.00 No MI 0
95.00 Radian Guaranty 30
75.00 No MI 0
75.00 No MI 0
79.76 No MI 0
80.00 No MI 0
80.00 No MI 0
95.00 United Guaranty 30
80.00 No MI 0
90.00 United Guaranty 25
90.00 Radian Guaranty 30
90.00 Radian Guaranty 30
80.00 No MI 0
89.99 Radian Guaranty 25
90.00 Radian Guaranty 30
90.00 Radian Guaranty 30
75.61 No MI 0
80.00 No MI 0
90.00 Radian Guaranty 30
90.00 Radian Guaranty 30
80.00 No MI 0
90.00 Radian Guaranty 30
95.00 Radian Guaranty 30
80.00 No MI 0
90.00 Radian Guaranty 30
81.43 Radian Guaranty 22
77.58 No MI 0
70.00 No MI 0
80.00 No MI 0
80.00 No MI 0
42.90 No MI 0
80.00 No MI 0
70.00 No MI 0
51.72 No MI 0
75.00 No MI 0
76.06 No MI 0
80.00 No MI 0
90.00 Radian Guaranty 30
89.95 Radian Guaranty 22
90.00 Radian Guaranty 30
78.97 No MI 0
90.00 Radian Guaranty 30
90.00 Radian Guaranty 30
40.52 No MI 0
86.82 Republic MIC 12 419753379
72.41 No MI 0
80.00 No MI 0
80.00 No MI 0
90.00 United Guaranty 25 5964563
90.00 Mortgage Guaranty In 25 20518885
76.92 No MI 0
97.00 United Guaranty 35 5375957
80.00 No MI 0
77.82 No MI 0
38.89 No MI 0
46.71 No MI 0
44.44 No MI 0
40.78 No MI 0
59.60 No MI 0
66.67 No MI 0
70.99 No MI 0
57.14 No MI 0
80.00 No MI 0
16.84 No MI 0
80.00 No MI 0
90.00 No MI 0
90.00 Mortgage Guaranty In 25 20576918
64.75 No MI 0
69.62 No MI 0
54.05 No MI 0
76.09 No MI 0
80.00 No MI 0
80.00 No MI 0
95.00 Mortgage Guaranty In 25 20443819
95.00 No MI 0
80.00 No MI 0
63.64 No MI 0
40.27 No MI 0
80.00 No MI 0
67.50 No MI 0
69.62 No MI 0
51.72 No MI 0
33.33 No MI 0
96.34 No MI 0
80.00 No MI 0
94.87 Republic MIC 30 330855001
78.38 No MI 0
62.71 No MI 0
80.00 No MI 0
73.08 No MI 0
94.44 Republic MIC 30 133253248
72.17 No MI 0
70.00 No MI 0
72.31 No MI 0
53.89 No MI 0
70.40 No MI 0
93.49 Republic MIC 18 3261553037
80.00 No MI 0
68.78 No MI 0
45.17 No MI 0
81.11 No MI 0
70.00 No MI 0
35.71 No MI 0
77.72 No MI 0
80.00 No MI 0
48.70 No MI 0
75.68 No MI 0
70.12 No MI 0
85.50 No MI 0
80.00 No MI 0
57.69 No MI 0
67.89 No MI 0
80.00 No MI 0
74.56 No MI 0
80.00 No MI 0
66.67 No MI 0
47.37 No MI 0
85.71 No MI 0
58.97 No MI 0
60.53 No MI 0
94.98 United Guaranty 25 5281912
90.00 Republic MIC 25 336053057
80.00 No MI 0
79.37 No MI 0
66.67 No MI 0
60.81 No MI 0
75.23 No MI 0
80.00 No MI 0
65.95 No MI 0
94.87 Republic MIC 25 334653144
73.33 No MI 0
55.41 No MI 0
80.00 No MI 0
60.00 No MI 0
69.23 No MI 0
29.41 No MI 0
94.96 No MI 0
78.95 No MI 0
93.06 GE Capital MI 25 9677796062
79.97 No MI 0
66.67 No MI 0
79.99 No MI 0
62.14 No MI 0
45.00 No MI 0
90.00 No MI 0
61.35 No MI 0
80.00 No MI 0
77.78 No MI 0
62.80 No MI 0
53.33 No MI 0
77.92 No MI 0
75.00 No MI 0
59.26 No MI 0
55.32 No MI 0
60.16 No MI 0
58.55 No MI 0
78.65 No MI 0
80.00 No MI 0
90.00 No MI 0
62.86 No MI 0
86.11 No MI 0
74.73 No MI 0
73.47 No MI 0
80.00 No MI 0
66.63 No MI 0
65.31 No MI 0
78.43 No MI 0
67.31 No MI 0
77.78 No MI 0
25.00 No MI 0
80.00 No MI 0
31.25 No MI 0
36.36 No MI 0
94.98 No MI 0
79.65 No MI 0
79.13 No MI 0
65.71 No MI 0
51.43 No MI 0
78.84 No MI 0
80.00 No MI 0
100.00 No MI 0
39.39 No MI 0
71.43 No MI 0
49.80 No MI 0
90.00 GE Capital MI 12 ▇▇▇▇▇▇▇▇▇▇
100.00 No MI 0
80.00 No MI 0
60.00 No MI 0
59.15 No MI 0
79.39 No MI 0
80.00 No MI 0
80.00 No MI 0
25.64 No MI 0
89.98 United Guaranty 25 7601099
80.00 No MI 0
89.07 No MI 0
80.00 No MI 0
51.45 No MI 0
79.88 No MI 0
90.00 No MI 0
95.00 Mortgage Guaranty In 25 21338510
79.99 No MI 0
100.00 No MI 0
70.00 No MI 0
79.99 No MI 0
67.23 No MI 0
45.71 No MI 0
45.78 No MI 0
80.00 No MI 0
57.79 No MI 0
79.37 No MI 0
80.00 No MI 0
72.73 No MI 0
52.69 No MI 0
90.00 GE Capital MI 25 9677737309
80.00 No MI 0
53.99 No MI 0
63.64 No MI 0
73.17 No MI 0
75.45 No MI 0
75.12 No MI 0
84.54 No MI 0
60.93 No MI 0
68.87 No MI 0
76.25 No MI 0
80.00 No MI 0
100.00 No MI 0
44.64 No MI 0
46.81 No MI 0
65.03 No MI 0
50.77 No MI 0
80.00 No MI 0
90.00 No MI 0
61.86 No MI 0
41.59 No MI 0
63.68 No MI 0
80.00 No MI 0
63.29 No MI 0
57.14 No MI 0
50.00 No MI 0
61.76 No MI 0
33.17 No MI 0
95.00 No MI 0
73.91 No MI 0
70.19 No MI 0
80.00 No MI 0
53.85 No MI 0
24.79 No MI 0
80.00 No MI 0
31.05 No MI 0
65.12 No MI 0
80.00 No MI 0
99.92 No MI 0
76.92 No MI 0
48.50 No MI 0
77.51 No MI 0
80.00 No MI 0
79.17 No MI 0
60.61 No MI 0
96.94 No MI 0
80.00 No MI 0
89.90 No MI 0
35.56 No MI 0
78.95 No MI 0
46.06 No MI 0
53.33 No MI 0
65.79 No MI 0
80.00 No MI 0
73.00 No MI 0
79.31 No MI 0
56.47 No MI 0
80.00 No MI 0
80.00 No MI 0
80.00 No MI 0
35.05 No MI 0
47.11 No MI 0
90.00 Republic MIC 25 404753166
80.00 No MI 0
77.14 No MI 0
66.01 No MI 0
80.00 No MI 0
74.89 No MI 0
75.00 No MI 0
80.00 No MI 0
63.49 No MI 0
88.16 No MI 0
80.00 No MI 0
58.89 No MI 0
60.00 No MI 0
53.13 No MI 0
90.00 Republic MIC 25 328853002
42.86 No MI 0
80.00 No MI 0
80.00 No MI 0
56.86 No MI 0
79.17 No MI 0
87.69 No MI 0
75.00 No MI 0
72.50 No MI 0
91.18 Radian Guaranty 25 6804954
31.58 No MI 0
73.08 No MI 0
20.18 No MI 0
76.19 No MI 0
90.00 Mortgage Guaranty In 30 19274154
65.79 No MI 0
77.03 No MI 0
77.71 No MI 0
66.67 No MI 0
99.96 No MI 0
68.24 No MI 0
64.52 No MI 0
89.89 GE Capital MI 25 3873303477
77.35 No MI 0
75.00 No MI 0
59.97 No MI 0
94.91 Republic MIC 25 220753291
89.84 Mortgage Guaranty In 12 19003237
58.56 No MI 0
49.82 No MI 0
94.99 Republic MIC 30 402953300
46.15 No MI 0
74.16 No MI 0
57.63 No MI 0
90.00 GE Capital MI 25 9675903350
51.88 No MI 0
80.00 No MI 0
71.43 No MI 0
50.00 No MI 0
68.55 No MI 0
75.14 No MI 0
72.12 No MI 0
80.00 No MI 0
99.50 No MI 0
80.00 No MI 0
80.00 No MI 0
80.00 No MI 0
79.96 No MI 0
72.50 No MI 0
57.97 No MI 0
80.00 No MI 0
67.24 No MI 0
80.00 No MI 0
67.83 No MI 0
70.13 No MI 0
74.00 No MI 0
67.35 No MI 0
80.00 No MI 0
79.03 No MI 0
61.22 No MI 0
95.00 No MI 0
77.65 No MI 0
90.00 No MI 0
80.00 No MI 0
83.33 No MI 0
54.64 No MI 0
89.89 Republic MIC 12 522855001
66.61 No MI 0
89.97 No MI 0
69.09 No MI 0
80.00 No MI 0
54.55 No MI 0
84.21 GE Capital MI 12 22765648
80.00 No MI 0
75.76 No MI 0
79.98 No MI 0
62.67 No MI 0
66.16 No MI 0
72.46 No MI 0
68.50 No MI 0
88.42 United Guaranty 25 8795583
100.00 No MI 0
80.00 No MI 0
61.73 No MI 0
80.00 No MI 0
90.00 No MI 0
80.00 No MI 0
80.00 No MI 0
78.63 No MI 0
LIEN CONFORMING_FLAG PAID_TO DELINQUENCY
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First Lien Y 20051001 CURRENT
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First Lien Y 20051001 CURRENT
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First Lien Y 20051001 CURRENT
First Lien Y 20051101 CURRENT
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First Lien Y 20051001 CURRENT
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First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
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First Lien Y 20060101 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051001 CURRENT
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First Lien Y 20051101 CURRENT
First Lien Y 20051001 CURRENT
First Lien Y 20051201 CURRENT
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First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
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First Lien N 20051201 CURRENT
First Lien N 20051201 CURRENT
First Lien Y 20051201 CURRENT
First Lien N 20051201 CURRENT
First Lien N 20051001 CURRENT
First Lien Y 20051201 CURRENT
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First Lien N 20051101 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
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First Lien N 20051101 CURRENT
First Lien Y 20051201 CURRENT
First Lien N 20051201 CURRENT
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First Lien Y 20051201 CURRENT
First Lien Y 20060101 CURRENT
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First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051001 CURRENT
First Lien Y 20051101 CURRENT
First Lien N 20051201 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien N 20051201 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051001 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051001 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
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First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051201 CURRENT
First Lien N 20051201 CURRENT
First Lien Y 20051001 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051201 CURRENT
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First Lien Y 20051201 CURRENT
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First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien N 20051201 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
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First Lien Y 20051101 CURRENT
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First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
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First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
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First Lien Y 20051101 CURRENT
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First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
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First Lien Y 20051101 CURRENT
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First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
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First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
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First Lien Y 20060101 CURRENT
First Lien Y 20051101 CURRENT
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First Lien Y 20051101 CURRENT
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First Lien Y 20051101 CURRENT
First Lien Y 20051001 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20060101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
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First Lien Y 20051001 CURRENT
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First Lien Y 20051201 CURRENT
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First Lien Y 20051001 CURRENT
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First Lien Y 20051001 CURRENT
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First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051001 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051001 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051001 CURRENT
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First Lien Y 20051101 CURRENT
First Lien Y 20051001 CURRENT
First Lien Y 20051101 CURRENT
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First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051001 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien N 20051201 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051201 CURRENT
First Lien N 20051101 CURRENT
First Lien N 20051101 CURRENT
First Lien Y 20051201 CURRENT
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First Lien Y 20051101 CURRENT
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First Lien Y 20051201 CURRENT
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First Lien Y 20051201 CURRENT
First Lien Y 20051101 CURRENT
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First Lien Y 20051201 CURRENT
First Lien Y 20051201 CURRENT
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First Lien Y 20051101 CURRENT
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First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien N 20051201 CURRENT
First Lien N 20051101 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051201 CURRENT
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First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien N 20051201 CURRENT
First Lien Y 20051201 CURRENT
First Lien N 20051201 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien N 20051101 CURRENT
First Lien Y 20051201 CURRENT
First Lien N 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien N 20051201 CURRENT
First Lien N 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
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First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
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First Lien N 20051101 CURRENT
First Lien N 20051201 CURRENT
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First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
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First Lien N 20051101 CURRENT
First Lien N 20051201 CURRENT
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First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051201 CURRENT
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First Lien N 20051101 CURRENT
First Lien Y 20051201 CURRENT
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First Lien N 20051101 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
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First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
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First Lien N 20051201 CURRENT
First Lien Y 20051101 CURRENT
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First Lien N 20051101 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051201 CURRENT
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First Lien N 20051101 CURRENT
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First Lien N 20051101 CURRENT
First Lien Y 20051201 CURRENT
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First Lien N 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
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First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
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First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
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First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
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First Lien N 20051101 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051101 CURRENT
First Lien N 20051201 CURRENT
First Lien Y 20051101 CURRENT
First Lien N 20051201 CURRENT
First Lien N 20051101 CURRENT
First Lien N 20051101 CURRENT
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First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
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First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
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First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
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First Lien Y 20051101 CURRENT
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First Lien N 20051101 CURRENT
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First Lien Y 20051201 CURRENT
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First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
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First Lien N 20051201 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051201 CURRENT
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First Lien N 20051101 CURRENT
First Lien Y 20051201 CURRENT
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First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
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First Lien N 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051101 CURRENT
First Lien N 20051201 CURRENT
First Lien N 20051201 CURRENT
First Lien N 20051101 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien N 20051201 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051201 CURRENT
First Lien N 20051101 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051201 CURRENT
First Lien N 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien N 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien N 20051201 CURRENT
First Lien Y 20051201 CURRENT
First Lien N 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien N 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
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First Lien N 20051101 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien N 20051101 CURRENT
First Lien N 20051201 CURRENT
First Lien Y 20051101 CURRENT
First Lien N 20051101 CURRENT
First Lien N 20051101 CURRENT
First Lien Y 20051201 CURRENT
First Lien N 20051101 CURRENT
First Lien N 20051201 CURRENT
First Lien N 20051101 CURRENT
First Lien N 20051101 CURRENT
First Lien N 20051101 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien N 20051201 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051101 CURRENT
First Lien N 20051101 CURRENT
First Lien N 20051101 CURRENT
First Lien Y 20051201 CURRENT
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First Lien N 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien N 20051101 CURRENT
First Lien N 20051201 CURRENT
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First Lien Y 20051201 CURRENT
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First Lien Y 20051101 CURRENT
First Lien Y 20051101 CURRENT
First Lien Y 20051201 CURRENT
First Lien Y 20051201 CURRENT
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First Lien Y 20051101 CURRENT
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First Lien N 20051101 CURRENT
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First Lien N 20051101 CURRENT
First Lien N 20051101 CURRENT
First Lien N 20051201 CURRENT
First Lien N 20051101 CURRENT
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First Lien N 20051101 CURRENT
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First Lien N 20051201 CURRENT
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First Lien N 20051101 CURRENT
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First Lien N 20051101 CURRENT
First Lien Y 20051201 CURRENT
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First Lien Y 20051101 CURRENT
ZIP_CODE IO_PERIOD SERV_TRANS_DATE1
-------- --------- ----------------
17602 0 20010827
87123 0 20010827
18332 0 20010827
20112 0 20010827
28104 0 20010801
85381 0 20010801
92833 0 20010801
85032 0 20010801
77584 0 20010801
7866 0 20010801
85382 0 20010801
85222 0 20010801
18951 0 20010901
89139 0 20010901
85349 0 20010901
89029 0 20010901
7728 0 20010901
20001 0 20010801
83352 0 20010801
98110 0 20010801
22508 0 20010801
98168 0 20010801
97838 0 20010801
85249 0 20010901
7503 0 20010901
85262 0 20010901
87102 0 20010901
97217 0 20010901
87059 0 20010901
20794 0 20010901
86426 0 20011001
22942 0 20011001
84044 0 20011001
7442 0 20011001
6513 0 20011001
93534 0 20011001
8809 0 20011001
11216 0 20011001
95501 0 20011001
11205 0 20011001
11215 0 20011001
8723 0 20011001
77401 0 20011001
30115 0 20010901
30066 0 20010901
85338 0 19000101
85338 0 19000101
1301 0 19000101
44333 0 19000101
21804 0 19000101
85234 0 19000101
64130 0 19000101
13813 0 19000101
32561 0 19000101
44113 0 19000101
23608 0 19000101
16504 0 19000101
48234 0 19000101
95843 0 19000101
91754 0 19000101
61932 0 19000101
94804 0 19000101
33134 0 19000101
45403 0 19000101
23669 0 19000101
7083 0 20011101
33487 0 20011001
39111 0 20011101
14620 0 20011101
22192 0 20011101
38125 0 20011101
48239 0 20011101
27282 0 20011101
63114 0 20011101
85281 0 20011101
87110 0 20011101
80232 0 20011101
78594 0 20011101
78727 0 20011101
78736 0 20011101
78664 0 20011101
78664 0 20011101
85234 0 20011101
78140 0 20011101
23509 0 20011101
89511 0 20011101
46312 0 20011101
11209 0 19000101
85210 0 19000101
46013 0 19000101
85303 0 19000101
53204 0 19000101
23947 0 19000101
46360 0 19000101
33541 0 19000101
1103 0 19000101
4863 0 20011201
30101 0 20011201
30106 0 20011201
30311 0 20011201
92629 0 20011201
95122 0 20011201
3235 0 20011201
14606 0 20011201
60646 0 20011201
32073 0 19000101
30345 0 19000101
46143 0 19000101
14613 0 19000101
14615 0 19000101
14611 0 19000101
64151 0 19000101
85552 0 19000101
14613 0 19000101
46143 0 19000101
46143 0 19000101
98225 0 19000101
44883 0 19000101
41011 0 19000101
45385 0 19000101
46143 0 19000101
98074 0 19000101
19312 0 20020101
94303 0 20020101
59718 0 20020101
21222 0 20020201
61008 0 20020201
23860 0 20020201
85602 0 20020201
30157 0 20020201
23832 0 20020201
44685 0 20020201
98801 0 20020201
49006 0 20020201
48221 0 20020201
48035 0 20020201
89130 0 20020201
17109 0 20020201
30035 0 20020201
48312 0 20020201
19023 0 20020201
32534 0 20020201
19130 0 20020201
8203 0 20020201
21225 0 20020201
44146 0 20020201
55303 0 20020201
38018 0 20020201
44112 0 20020201
91325 0 20020201
33063 0 19000101
60653 0 20020301
8008 0 20020301
21060 0 20020301
19401 0 20020301
8078 0 20020301
11216 0 20020301
32507 0 20020301
84741 0 20020401
28365 0 20020401
32561 0 20020401
30183 0 20020401
80524 0 20020401
92691 0 20020301
77474 0 20020401
78636 0 20020401
48446 0 20020501
22554 0 20020401
30535 0 20020401
48210 0 20020401
48235 0 20020401
60419 0 20020401
20720 0 20020401
87124 0 20020401
22191 0 20020401
90401 0 20020401
96821 0 20020401
86334 0 19000101
92392 0 19000101
92371 0 19000101
21223 0 19000101
20832 0 19000101
11545 0 20020501
20170 0 20020501
92107 0 20020501
90025 0 20020501
93923 0 20020501
6241 0 20020501
20817 0 20020501
85749 0
78539 0 20020601
89074 0 20020601
16670 0 19000101
84121 0
40502 0 20020601
72015 0
8753 0
66079 0
10457 0 20020801
28716 0
44123 0
48507 0 20020801
11721 0 20020801
20165 0 20020801
33024 0
34747 0
97701 0
27534 0
72114 0
94509 0 20020901
98683 0 20020901
64030 0
3104 0 20021001
20904 0 20021001
75904 0 20021001
67207 0
32725 0
32725 0
33837 0 20020901
33897 0 20020901
76017 0
76017 0
32208 0 20020815
8820 0 20020815
15218 0 20020815
33953 0 20020815
18504 0 20020815
54303 0 20020815
19124 0 20020815
45601 0 20020815
19134 0 20020815
92130 0
11743 0
49008 0
78521 0
63348 0
48917 0
33055 0 20020901
56069 0
15059 0
67212 0
7722 0 20020815
29223 0 20020815
60620 0 20020825
49456 0 20020825
74127 0 20020825
49001 0 20020825
48507 0 20020825
44714 0 20020825
21230 0 20020825
31820 0 20020825
60827 0 20020825
28390 0 20020825
33801 0 20020825
32837 0
34711 0
20677 0
22508 0
98851 0
75035 0
85387 0 20021001
72206 0 20021001
22101 0 20021001
11365 0 20021001
78163 0 20021001
98036 0 20021001
6432 0 20021001
75040 0 20021001
11968 0 20021001
46032 0
19947 0
11414 0 20020829
96150 0 20020915
95682 0 20020915
97304 0 20020915
32206 0
7106 0 20020901
24055 0 20020904
6114 0
92646 0
46816 0
73018 0
48413 0
32117 0 20020907
33950 0 20021001
11717 0 20021001
90254 0 20021001
91321 0 20021001
98053 0 20021001
94010 0 20021001
33431 0 20021001
94112 0 20021001
33025 0 20021001
11746 0 20021001
92833 0 20021001
90018 0 20021001
90220 0 20021001
60115 0
98684 0
19126 0
46616 0
95131 0 20020913
78228 0 20021001
33618 0 20021001
77373 0 20021001
77373 0 20021001
78753 0 20021001
78744 0 20021001
77015 0 20021001
76554 0 20021001
85615 0 20021001
77095 0 20021001
78957 0 20021001
78652 0 20021001
76123 0 20021001
21031 0
30311 0
78578 0
15068 0 20020925
17527 0 20020925
23223 0 20020925
74873 0 20020925
21223 0 20020925
53140 0 20020925
44703 0 20020925
38637 0 20020925
18103 0 20020925
77449 0 20020925
30076 0 20020925
55075 0 20020925
85042 0 20021001
60623 0 20021001
55413 0 20021001
77036 0 20021001
77379 0 20021001
78577 0 20021001
85037 0 20021001
30331 0 20021001
27526 0 20021001
85648 0 20021001
62401 0 20021001
77085 0 20021001
85251 0 20021001
47712 0 20021001
55449 0 20021001
20737 0 20021001
77072 0 20021001
37064 0 20021001
43607 0 20021001
43416 0 20021001
11704 0 20021001
32408 0 20021001
72732 0 20021001
85648 0 20021001
85037 0 20021001
60102 0 20021001
60612 0 20021001
86401 0 20021001
30022 0 20021001
32141 0 20021001
17099 0 19000101
27546 0 19000101
85051 0 19000101
60014 0 19000101
20743 0 19000101
61115 0 19000101
59044 0 19000101
19473 0 19000101
75148 0 19000101
27615 0 19000101
95948 0 19000101
97913 0 19000101
61102 0 19000101
7017 0 19000101
19050 0 19000101
21875 0 19000101
37938 0 19000101
85297 0 19000101
88317 0 19000101
2341 0 19000101
48224 0 19000101
60804 0 19000101
98823 0 19000101
18370 0 19000101
85037 0 19000101
87124 0 19000101
8833 0 19000101
49709 0 19000101
19151 0 19000101
23454 0 19000101
32741 0 19000101
85901 0 19000101
97756 0 19000101
78628 0 19000101
6516 0 19000101
19604 0 19000101
92648 0
41001 0
94114 0
33487 0
33478 0
44685 0
30080 0
0
93066 0
60002 0
77880 0
98070 0
91506 0
92024 0
94598 0
22079 0
0
20191 0
0
0
19312 0
78232 0
92688 0
0
10605 0
60608 0
0
32812 0
10591 0
0
0
33021 0
33024 0
33305 0
20850 0
0
72212 0
75104 0
28594 0
11968 0
85242 0
43082 0
7662 0
0
97532 0
94015 0
8736 0
45242 0
47714 0
85730 0
32548 0
91331 0
88001 0
79936 0
30038 0
64075 0
79015 0
33411 0
30102 0
89147 0
77031 0
32822 0
30310 0
33309 0
29577 0
2129 0
89512 0
38111 0
60637 0
77520 0
18058 0
6902 0
77083 0
8081 0
45415 0
76112 0
32712 0
74053 0
20745 0
26301 0
94544 0
34241 0
76028 0
78201 0
34113 0
79932 0
96818 0
30134 0
77055 0
19023 0
79015 0
80863 0
77450 0
77345 0
87105 0
77449 0
33026 0
33325 0
33311 0
33322 0
33321 0
8330 0
21226 0
15317 0
19140 0
33177 0
77388 0
30080 0
89031 0
39577 0
77092 0
6902 0
21211 0
33458 0
75035 0
48453 0
33936 0
30078 0
19139 0
46241 0
93313 0
93309 0
0
30059 0
8691 0
94060 0
78015 0
19473 0
29303 0
31211 0
96821 0
30291 0
30518 0
91730 0
21040 0
15216 0
75010 0
30331 0
34758 0
77070 0
30217 0
72365 0
33016 0
34432 0
78759 0
22312 0
98933 0
33013 0
87015 0
87501 0
8332 0
8260 0
8724 0
46051 0
87002 0
22204 0
8724 0
78240 0
31401 0
61068 0
97305 0
19072 0 20050915
7747 0 20050915
7755 0 20051015
7642 0 20051015
8540 0 20051015
8884 0 20051015
6830 0 20051015
12167 0 20051015
19335 0 20051015
7722 0 20051015
8080 0 20051015
7720 0 20051015
7928 0 20051015
10552 0 20051015
7033 0 20051015
8003 0 20051015
33432 0 20051015
11030 0 20051015
8036 0 20051015
7006 0 20051015
7456 0 20051015
7722 0 20051015
7069 0 20051015
8203 0 20051015
8736 0 20051015
8759 0 20051015
8007 0 20051015
8077 0 20051015
8502 0 20051015
8002 0 20051015
19428 0 20051015
8226 0 20051015
8060 0 20051015
19405 0 20051015
8062 0 20051015
8840 0 20051015
7764 0 20051015
7920 0 20051015
8742 0 20051015
8202 0 20051015
19333 0 20051015
8822 0 20051015
7649 0 20051015
8534 0 20051015
8536 0 20051015
18350 0 20051015
8057 0 20051015
8109 0 20051015
7016 0 20051015
7302 0 20051015
7738 0 20051015
12771 0 20051015
8753 0 20051015
8028 0 20051015
8226 0 20051015
8753 0 20051015
7481 0 20051015
8204 0 20051015
11102 0 20051015
8858 0 20051015
8757 0 20051015
8852 0 20051015
7417 0 20051015
8270 0 20051015
8085 0 20051015
8752 0 20051015
7760 0 20051015
7067 0 20051015
8057 0 20051015
10562 0 20051015
7974 0 20051015
7675 0 20051015
8215 0 20051015
33957 0 20051015
7728 0 20051015
7645 0 20051015
7701 0 20051015
19050 0 20051015
7701 0 20051015
19446 0 20051015
8730 0 20051015
8402 0 20051015
7481 0 20051015
8852 0 20051015
8753 0 20051015
8080 0 20051015
7033 0 20051015
7670 0 20051015
7748 0 20051015
7656 0 20051015
7076 0 20051015
8753 0 20051015
8234 0 20051015
8003 0 20051015
19118 0 20051015
7675 0 20051015
8754 0 20051015
7042 0 20051015
19426 0 20051015
8226 0 20051015
8822 0 20051015
8755 0 20051015
10011 0 20051015
8054 0 20051015
8109 0 20051015
8062 0 20051015
7642 0 20051015
7722 0 20051015
7604 0 20051015
11358 0 20051015
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