MASTER MORTGAGE LOAN PURCHASE AND SERVICING AGREEMENT
among
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE INVESTORS, INC.
Purchaser,
GREENPOINT MORTGAGE FUNDING INC.
Seller
Dated as of October 1, 2006
CONVENTIONAL FIXED AND ADJUSTABLE RATE MORTGAGE LOANS
FLOW DELIVERY PROGRAM
Table Of Contents
SECTION 1. Definitions............................................ 1
SECTION 2. Agreement to Purchase.................................. 17
SECTION 3. Mortgage Loan Schedules................................ 17
SECTION 4. Purchase Price......................................... 17
SECTION 5. Examination of Mortgage Files.......................... 18
SECTION 6. Conveyance from Seller to Initial Purchaser............ 18
Subsection 6.01 Conveyance of Mortgage Loans; Possession of Servicing
Files.................................................. 18
Subsection 6.02 Books and Records...................................... 19
Subsection 6.03 Delivery of Mortgage Loan Documents.................... 20
SECTION 7. Representations, Warranties and Covenants of the
Seller: Remedies for Breach............................ 20
Subsection 7.01 Representations and Warranties Respecting the Seller... 20
Subsection 7.02 Representations and Warranties Regarding Individual
Mortgage Loans......................................... 23
Subsection 7.03 Remedies for Breach of Representations and Warranties.. 36
Subsection 7.04 Repurchase of Certain Mortgage Loans................... 39
Subsection 7.05 [Reserved]............................................. 39
Subsection 7.06 Review of Mortgage Loans............................... 39
SECTION 8. Closing................................................ 39
SECTION 9. Closing Documents...................................... 40
SECTION 10. Costs.................................................. 41
SECTION 11. Seller's Servicing Obligations......................... 41
SECTION 12. Removal of Mortgage Loans from Inclusion under This
Agreement Upon a Whole Loan Transfer or a
Securitization Transaction on One or More
Reconstitution Dates................................... 41
Subsection 12.02 Intent of the Parties; Reasonableness.................. 44
Subsection 12.03 Additional Representations and Warranties of the
Seller................................................. 44
Subsection 12.04 Information to Be Provided by the Seller............... 45
Subsection 12.05 Indemnification; Remedies.............................. 50
Subsection 12.06 Third Party Beneficiary................................ 54
SECTION 13. [Reserved]............................................. 54
SECTION 14. The Seller............................................. 54
Subsection 14.01 Additional Indemnification by the Seller............... 54
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Subsection 14.02 Merger or Consolidation of the Seller.................. 55
Subsection 14.03 Limitation on Liability of the Seller and Others....... 55
Subsection 14.04 Seller Not to Resign................................... 55
Subsection 14.05 No Transfer of Servicing............................... 56
SECTION 15. Default................................................ 56
Subsection 15.01 Events of Default...................................... 56
Subsection 15.02 Waiver of Defaults..................................... 58
SECTION 16. Termination............................................ 58
SECTION 17. Successor to the Seller................................ 58
SECTION 18. Financial Statements................................... 59
SECTION 19. Mandatory Delivery: Grant of Security Interest......... 60
SECTION 20. Notices................................................ 60
SECTION 21. Severability Clause.................................... 61
SECTION 22. Counterparts........................................... 61
SECTION 23. Governing Law.......................................... 61
SECTION 24. Intention of the Parties............................... 61
SECTION 25. Successors and Assigns................................. 62
SECTION 26. Waivers................................................ 62
SECTION 27. Exhibits............................................... 62
SECTION 28. Nonsolicitation........................................ 62
SECTION 29. General Interpretive Principles........................ 63
SECTION 30. Reproduction of Documents.............................. 63
SECTION 31. Further Agreements..................................... 63
SECTION 32. Survival............................................... 64
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EXHIBITS
EXHIBIT 1 SELLER'S OFFICER'S CERTIFICATE
EXHIBIT 2 FORM OF OPINION OF COUNSEL TO THE SELLER
EXHIBIT 3 SECURITY RELEASE CERTIFICATION
EXHIBIT 4 FORM OF WARRANTY ▇▇▇▇ OF SALE
EXHIBIT 5 CONTENTS OF EACH MORTGAGE FILE
EXHIBIT 6 FORM OF CUSTODIAL ACCOUNT CERTIFICATION
EXHIBIT 7 FORM OF ESCROW ACCOUNT CERTIFICATION
EXHIBIT 8 SERVICING ADDENDUM
EXHIBIT 9 FORM OF PURCHASE PRICE AND TERMS LETTER
EXHIBIT 10 ANNUAL CERTIFICATION
SCHEDULE I FINAL MORTGAGE LOAN SCHEDULE
EXHIBIT 11 MONTHLY REMITTANCE ADVICE
EXHIBIT 12 REPORTING DATA FOR DEFAULTED LOANS
EXHIBIT 13 REALIZED LOSS CALCULATION INFORMATION
EXHIBIT 14 SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
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MASTER MORTGAGE LOAN PURCHASE AND SERVICING AGREEMENT
This is a MASTER MORTGAGE LOAN PURCHASE AND SERVICING AGREEMENT (the
"Agreement"), dated as of October 1, 2006, by and among ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage
Investors, Inc., having an office at 4 World Financial Center, 10th Floor, New
York, New York 10281 (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 GreenPoint
Mortgage Funding Inc., having an office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Seller").
WITNESSETH:
WHEREAS, the Seller desires to sell, from time to time, to the
Purchaser, and the Purchaser desires to purchase, from time to time, from the
Seller, certain conventional fixed and adjustable rate residential first lien
mortgage loans, (the "Mortgage Loans") as described herein on a
servicing-retained basis, and which shall be delivered in groups of whole loans
on various dates as provided herein (each, a "Closing Date");
WHEREAS, each Mortgage Loan is secured by a mortgage, deed of trust or
other security instrument creating a first lien on a residential dwelling
located in the jurisdiction indicated on the Final Mortgage Loan Schedule for
the related Mortgage Loan Package, which is to be annexed hereto on each Closing
Date as Schedule I;
WHEREAS, the Purchaser and the Seller wish to prescribe the manner of
the conveyance, servicing and control of the Mortgage Loans; and
WHEREAS, following its purchase of the Mortgage Loans from the Seller,
the Purchaser desires to sell some or all of the Mortgage Loans to one or more
purchasers as a whole loan transfer in a whole loan or participation format or a
public or private mortgage-backed securities transaction;
NOW, THEREFORE, in consideration of the premises and mutual agreements
set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Purchaser and the Seller agree
as follows:
SECTION 1. Definitions.
For purposes of this Agreement the following capitalized terms shall
have the respective meanings set forth below:
Adjustable Rate Mortgage Loan: A Mortgage Loan which provides for the
adjustment of the Mortgage Interest Rate payable in respect thereto.
Adjustment Date: With respect to each Adjustable Rate Mortgage Loan,
the date set forth in the related Mortgage Note on which the Mortgage Interest
Rate on such Adjustable Rate Mortgage Loan is adjusted in accordance with the
terms of the related Mortgage Note.
Agreement: This Master Mortgage Loan Purchase and Servicing Agreement
including all exhibits, schedules, amendments and supplements hereto.
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 ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac, and
(ii) the purchase price paid for the related Mortgaged Property by the Mortgagor
with the proceeds of the Mortgage Loan, provided, however, in the case of a
Refinanced Mortgage Loan, such value of the Mortgaged Property is based solely
upon the value determined by an appraisal made for the originator of such
Refinanced Mortgage Loan at the time of origination of such Refinanced Mortgage
Loan by an appraiser who met the minimum requirements of ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇
Mac.
Approved Flood Policy Insurer: Any of the following insurers:
Transamerica.
Approved Tax Service Contract Provider: Any of the following
providers: Lereta.
Assignment of Mortgage: 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 give record notice of the sale of the Mortgage to the Purchaser.
Balloon Loan: A Mortgage Loan identified on the Final Mortgage Loan
Schedule as a balloon mortgage loan.
BIF: The Bank Insurance Fund, or any successor thereto.
Business Day: Any day other than a Saturday or Sunday, or a day on
which banking and savings and loan institutions in the State of New York, State
of Maryland, State of Minnesota or State of California are authorized or
obligated by law or executive order to be closed.
Buydown Mortgage Loan: A Mortgage Loan in which buydown funds are used
to pay a portion of the interest payable on the Mortgage Loan for a specified
period of time.
Cash-Out Refinancing: A Refinanced Mortgage Loan the proceeds of which
were in excess of the principal balance of any existing first mortgage on the
related Mortgaged Property and related closing costs, and were used to pay any
such existing first mortgage, related closing costs and subordinate mortgages on
the related Mortgaged Property.
Closing Date: The date or dates on which the Purchaser from time to
time shall purchase and the Seller from time to time shall sell to the
Purchaser, the Mortgage Loans listed on the related Final Mortgage Loan Schedule
with respect to the related Mortgage Loan Package.
Closing Documents: With respect to any Closing Date, the documents
required pursuant to Section 9.
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Code: The Internal Revenue Code of 1986, or any successor statute
thereto, and applicable U.S. Department of Treasury regulations issued pursuant
thereto.
Commission: The United States Securities and Exchange Commission.
Condemnation Proceeds: All awards, compensation and settlements in
respect of a taking of all or part of a Mortgaged Property by exercise of the
power of condemnation or the right of eminent domain.
Convertible Mortgage Loan: A Mortgage Loan that by its terms and
subject to certain conditions contained in the related Mortgage or Mortgage Note
allows the Mortgagor to convert the adjustable Mortgage Interest Rate on such
Mortgage Loan to a fixed Mortgage Interest Rate.
Custodial Account: The separate account or accounts, each of which
shall be an Eligible Account, created and maintained pursuant to this Agreement,
which shall be entitled "GreenPoint Mortgage Funding Inc., as servicer, in trust
for the Purchaser and various Mortgagors, Fixed and Adjustable Rate Mortgage
Loans", established at a financial institution acceptable to the Purchaser.
Custodial Agreement: The agreement between the Initial Purchaser and
the Custodian, governing the retention of the originals of the Mortgage Loan
Documents.
Custodian: The custodian designated by the Initial Purchaser under the
Custodial Agreement, or its successor in interest or assigns, or any successor
to the Custodian under the Custodial Agreement.
Cut-off Date: The first day of the month in which the related Closing
Date occurs.
Deleted Mortgage Loan: A Mortgage Loan replaced or to be replaced by a
Qualified Substitute Mortgage Loan.
Depositor: The depositor, as such term is defined in Regulation AB,
with respect to any Securitization Transaction.
Determination Date: With respect to each Remittance Date, the
fifteenth (15th) day of the calendar month in which such Remittance Date occurs
or, if such fifteenth (15th) day is not a Business Day, the Business Day
immediately preceding such fifteenth (15th) day.
Disqualified Organization: An organization defined as such in Section
860E(e) of the Code.
Due Date: With respect to each Remittance Date, the first day of the
calendar month in which such Remittance Date occurs, which is the day on which
the Monthly Payment is due on a Mortgage Loan, exclusive of any days of grace.
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Due Period: With respect to each Remittance Date, the period
commencing on the second day of the month preceding the month of the Remittance
Date and ending on the first day of the month of the Remittance Date.
Eligible Account: Either (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company the
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 short-term unsecured debt obligations of such holding company) are
rated A-1 by S&P or Prime-1 by Moody's (or a comparable rating if another rating
agency is specified by the Initial Purchaser by written notice to the Seller) at
the time any amounts are held on deposit therein, (ii) an account or accounts
the deposits in which are fully insured by the FDIC or (iii) a trust account or
accounts maintained with a federal or state chartered depository institution or
trust company acting in its fiduciary capacity. Eligible Accounts may bear
interest.
Escrow Account: The separate trust account or accounts created and
maintained pursuant to this Agreement which shall be entitled "GreenPoint
Mortgage Funding Inc., as servicer, in trust for the Purchaser and various
Mortgagors, Fixed and Adjustable Rate Mortgage Loans," established at a
financial institution acceptable to the Purchaser.
Escrow Payments: The amounts constituting ground rents, taxes,
assessments, water charges, sewer rents, municipal charges, Primary Insurance
Policy premiums, fire and hazard insurance premiums, condominium charges and
other payments required to be escrowed by the Mortgagor with the Mortgagee
pursuant to the terms of any Mortgage Note or Mortgage.
Event of Default: Any one of the events enumerated in Section 15.01.
Exchange Act: The Securities Exchange Act of 1934, as amended.
▇▇▇▇▇▇ Mae: ▇▇▇▇▇▇ ▇▇▇ or any successor thereto.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
Final Mortgage Loan Schedule: With respect to each Mortgage Loan
Package, the schedule of Mortgage Loans to be annexed hereto as Schedule I (or a
supplement thereto) on each Closing Date for the Mortgage Loan Package delivered
on such Closing Date in both hard copy and floppy disk, such schedule setting
forth the following information with respect to each Mortgage Loan in the
Mortgage Loan Package:
(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 state
and zip code;
(4) a code indicating whether the Mortgaged Property is
owner-occupied;
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(5) the type of Residential Dwelling constituting the Mortgaged
Property: single family residence, a 2-4 family residence, a
condominium unit or a unit in a planned unit development;
(6) the original months to maturity;
(7) the original date of the Mortgage Loan and the remaining months
to maturity from the Cut-off Date, based on the original
amortization schedule;
(8) the Loan-to-Value Ratio at origination;
(9) the Mortgage Interest Rate in effect immediately following the
Cut-off Date;
(10) the date on which the first Monthly Payment was due on 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 last Due Date on which a Monthly Payment was actually applied
to the unpaid Stated Principal Balance;
(15) the original principal amount of the Mortgage Loan;
(16) the Stated Principal Balance of the Mortgage Loan as of the close
of business on the Cut-off Date;
(17) with respect to each Adjustable Rate Mortgage Loan, the first
Mortgage Interest Rate Adjustment Date;
(18) with respect to each Adjustable Rate Mortgage Loan, the Gross
Margin;
(19) with respect to each Adjustable Rate Mortgage Loan, the Periodic
Rate Cap;
(20) a code indicating the purpose of the loan (i.e., purchase
financing, Rate/Term Refinancing, Cash-Out Refinancing);
(21) with respect to each Adjustable Rate Mortgage Loan, the Maximum
Mortgage Interest Rate under the terms of the Mortgage Note;
(22) with respect to each Adjustable Rate Mortgage Loan, the Minimum
Mortgage Interest Rate under the terms of the Mortgage Note;
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(23) the Mortgage Interest Rate at origination;
(24) with respect to each Adjustable Rate Mortgage Loan, the first
Adjustment Date immediately following the Cut-off Date;
(25) with respect to each Adjustable Rate Mortgage Loan, the Index;
(26) the date on which the first Monthly Payment was due on the
Mortgage Loan and, if such date is not consistent with the Due
Date currently in effect, such Due Date;
(27) a code indicating whether the Mortgage Loan is an Adjustable Rate
Mortgage Loan, a Balloon Loan or a Fixed Rate Mortgage Loan;
(28) a code indicating the documentation style (i.e., full,
alternative or reduced);
(29) a code indicating if the Mortgage Loan is subject to a Primary
Insurance Policy, and if it is, the PMI Policy certificate number
and PMI policy coverage percentage;
(30) a code indicating whether the Mortgage Loan is a Buydown Mortgage
Loan;
(31) a code indicating whether the Mortgage Loan is subject to the
Homeownership and Equity Protection Act of 1994;
(32) a code indicating whether the Mortgage Loan is subject to a
prepayment penalty and the term of such penalty;
(33) the Appraised Value of the Mortgaged Property;
(34) the sale price of the Mortgaged Property, if applicable;
(35) the date on which the Mortgage Loan was originated;
(36) the Mortgage Loan Remittance Rate as of the Cut-off Date, whether
or not collected;
(37) a code indicating if the Mortgage Loan is a High Cost Loan as
such terms are defined in the then current Standard & Poor's
LEVELS(R) Glossary
With respect to the Mortgage Loan Package in the aggregate, the Final
Mortgage Loan Schedule shall set forth the following information, as of the
related Cut-off Date:
(38) the number of Mortgage Loans;
(39) the current principal balance of the Mortgage Loans;
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(40) the weighted average Mortgage Interest Rate of the Mortgage
Loans; and
(41) the weighted average maturity of the Mortgage Loans.
Schedule I hereto shall be supplemented as of each Closing Date to
reflect the addition of the Final Mortgage Loan Schedule with respect to the
related Mortgage Loan Package.
Final Recovery Determination: With respect to any defaulted Mortgage
Loan or any REO Property (other than a Mortgage Loan or REO Property purchased
by the Seller pursuant to this Agreement), a determination made by the Seller
that all Insurance Proceeds, Liquidation Proceeds and other payments or
recoveries which the Seller, in its reasonable good faith judgment, expects to
be finally recoverable in respect thereof have been so recovered. The Seller
shall maintain records, prepared by a servicing officer of the Seller, of each
Final Recovery Determination.
Fixed Rate Mortgage Loan: A Mortgage Loan with respect to which the
Mortgage Interest Rate set forth in the Mortgage Note is fixed for the term of
such Mortgage Loan.
▇▇▇▇▇▇▇ Mac: The Federal Home Loan Mortgage Corporation or any
successor thereto.
Gross Margin: With respect to any Adjustable Rate Mortgage Loan, the
fixed percentage amount set forth in the related Mortgage Note and the related
Final Mortgage Loan Schedule that is added to the Index on each Adjustment Date
in accordance with the terms of the related Mortgage Note to determine the new
Mortgage Interest Rate for such Mortgage Loan.
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 Final Mortgage Loan Schedule and set forth in the related
Mortgage Note for the purpose of calculating the interest rate thereon.
Initial Closing Date: The Closing Date on which the Initial Purchaser
purchases and the Seller sells the first Mortgage Loan Package hereunder.
Initial Purchaser: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc., or any
successor.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged Property.
Liquidation Proceeds: Amounts, other than Insurance Proceeds and
Condemnation Proceeds, received 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 REO Property.
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Loan-to-Value Ratio or LTV: With respect to any Mortgage Loan as of
any date of determination, the ratio on such date of the outstanding principal
amount of the Mortgage Loan, to the Appraised Value of the Mortgaged Property.
Master Servicer: ▇▇▇▇▇ Fargo Bank, N.A.
Maximum Mortgage Interest Rate: With respect to each Adjustable Rate
Mortgage Loan, a rate that is set forth on the related Final Mortgage Loan
Schedule and in the related Mortgage Note and is the maximum interest rate to
which the Mortgage Interest Rate on such Mortgage Loan may be increased.
MERS: MERSCORP, Inc., its successors and assigns.
MERS Designated Mortgage Loan: Mortgage Loans for which (a) the Seller
has designated or will designate MERS as, and has taken or will take such action
as is necessary to cause MERS to be, the mortgagee of record, as nominee for the
Seller, in accordance with MERS Procedure Manual and (b) the Seller has
designated or will designate the Custodian as the Investor on the MERS(R)
System.
MERS Procedure Manual: The MERS Procedures Manual, as it may be
amended, supplemented or otherwise modified from time to time.
MERS Report: The report from the MERS System listing MERS Designated
Mortgage Loans and other information.
MERS(R) System: MERS mortgage electronic registry system, as more
particularly described in the MERS Procedures Manual.
Minimum Mortgage Interest Rate: With respect to each Adjustable Rate
Mortgage Loan, a rate that is set forth on the related Final Mortgage Loan
Schedule and in the related Mortgage Note and is the minimum interest rate to
which the Mortgage Interest Rate on such Mortgage Loan may be decreased.
Monthly Advance: The aggregate of the advances made by the Seller on
any Remittance Date pursuant to Section 11.21.
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.
Moody's: ▇▇▇▇▇'▇ Investors Service, Inc. or its successor in interest.
Mortgage: The mortgage, deed of trust or other instrument creating a
first lien on Mortgaged Property securing the Mortgage Note.
Mortgagee: The mortgagee or beneficiary named in the Mortgage and the
successors and assigns of such mortgagee or beneficiary.
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Mortgage File: The items pertaining to a particular Mortgage Loan
referred to in Exhibit 5 annexed hereto, and any additional documents required
to be added to the Mortgage File pursuant to this Agreement or the related
Purchase Price and Terms Letter.
Mortgage Interest Rate: With respect to each Fixed Rate Mortgage Loan,
the fixed annual rate of interest provided for in the related Mortgage Note and,
with respect to each Adjustable Rate Mortgage Loan, the annual rate that
interest accrues on such Adjustable Rate Mortgage Loan from time to time in
accordance with the provisions of the related Mortgage Note.
Mortgage Loan: Each first lien, residential mortgage loan, sold,
assigned and transferred to the Purchaser pursuant to this Agreement and the
related Purchase Price and Terms Letter and identified on the Final Mortgage
Loan Schedule annexed to this Agreement on such Closing Date, 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 following documents:
(1) The original Mortgage Note endorsed, "Pay to the order of
______________, without recourse" and signed in the name of the Seller by
an authorized officer of the Seller. If the Mortgage Loan was acquired by
the Seller in a merger or other type of acquisition, the endorsement must
be by "[Seller], successor [by merger to or in interest to, as applicable]
[name of predecessor]"; and if the Mortgage Loan was acquired or originated
by the Seller while doing business under another name, the endorsement must
be by "[Seller], successor in interest to [previous name]." The Mortgage
Note shall include all intervening endorsements showing a complete chain of
title from the originator to the Seller;
(2) The original recorded Mortgage, with evidence of recording
thereon, or, if the original Mortgage has not yet been returned from the
recording office, a copy of the original Mortgage certified by the previous
owner to be a true copy of the original of the Mortgage that has been
delivered for recording in the appropriate recording office of the
jurisdiction in which the Mortgaged Property is located;
(3) Except with respect to each MERS Designated Mortgage Loan, the
original Assignment of Mortgage for each Mortgage Loan, in form and
substance acceptable for recording. The Assignment of Mortgage shall be
delivered in blank. If the Mortgage Loan was acquired by the Seller in a
merger, the Assignment of Mortgage must be made by "[Seller], successor by
merger to [name of predecessor]". If the Mortgage Loan was acquired or
originated by the Seller while doing business under another name, the
Assignment of Mortgage must be by "[Seller], formerly known as [previous
name]";
(4) The originals of all intervening assignments of mortgage (if any)
evidencing a complete chain of assignment from the Seller (or MERS with
respect to each MERS Designated Mortgage Loan) to the last endorsee with
evidence of recording
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thereon, or if any such intervening assignment has not been returned from
the applicable recording office or has been lost or if such public
recording office retains the original recorded assignments of mortgage, the
Seller shall deliver or cause to be delivered to the Custodian, a photocopy
of such intervening assignment, together with (i) in the case of a delay
caused by the public recording office, an Officer's Certificate of the
Seller (or certified by the title company, escrow agent, or closing
attorney) stating that such intervening assignment of mortgage has been
dispatched to the appropriate public recording office for recordation and
that such original recorded intervening assignment of mortgage or a copy of
such intervening assignment of mortgage certified by the appropriate public
recording office to be a true and complete copy of the original recorded
intervening assignment of mortgage will be promptly delivered to the
Custodian upon receipt thereof by the Seller; or (ii) in the case of an
intervening assignment where a public recording office retains the original
recorded intervening assignment or in the case where an intervening
assignment is lost after recordation in a public recording office, a copy
of such intervening assignment certified by such public recording office to
be a true and complete copy of the original recorded intervening
assignment;
(5) The original policy of title insurance (or a preliminary title
report if the original title insurance policy has not been received from
the title insurance company);
(6) With respect to a Mortgage Loan that, according to the Final
Mortgage Loan Schedule is covered by a primary mortgage insurance policy,
the original or a copy of the policy of primary mortgage insurance;
(7) The original of any guarantee executed in connection with the
Mortgage Note;
(8) The original of any security agreement, chattel mortgage or
equivalent executed in connection with the Mortgage;
(9) Originals of all assumption, modification, consolidation or
extension agreements, if any; and
(10) Such other documents as the Purchaser may require.
Mortgage Loan Package: The Mortgage Loans listed on a Final Mortgage
Loan Schedule, delivered to the Custodian and the Purchaser at least five (5)
Business Days prior to the related Closing Date and attached to this Agreement
as Schedule I on the related Closing Date.
Mortgage Note: The original executed note or other evidence of the
Mortgage Loan indebtedness of a Mortgagor.
Mortgaged Property: The Mortgagor's real property securing repayment
of a related Mortgage Note, consisting of a fee simple interest in a single
parcel of real property improved by a Residential Dwelling.
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Mortgagor: The obligor on a Mortgage Note, the owner of the Mortgaged
Property and the grantor or mortgagor named in the related Mortgage and such
grantor's or mortgagor's successor's in title to the Mortgaged Property.
Net Mortgage Rate: With respect to any Mortgage Loan (or the related
REO Property), as of any date of determination, a per annum rate of interest
equal to the then applicable Mortgage Interest Rate for such Mortgage Loan minus
the Servicing Fee Rate.
Nonrecoverable Monthly Advance: Any Monthly Advance previously made or
proposed to be made in respect of a Mortgage Loan or REO Property that, in the
good faith business judgment of the Seller, will not, or, in the case of a
proposed Monthly Advance, would not be, ultimately recoverable from related late
payments, Insurance Proceeds or Liquidation Proceeds on such Mortgage Loan or
REO Property as provided herein.
Officer's Certificate: A certificate signed by the Chairman of the
Board or the Vice Chairman of the Board or a President or a Vice President and
by the Treasurer or the Secretary or one of the Assistant Treasurers or
Assistant Secretaries of the Person on behalf of whom such certificate is being
delivered, and delivered to the Purchaser as required by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be salaried
counsel for the Person on behalf of whom the opinion is being given, reasonably
acceptable to each Person to whom such opinion is addressed.
Periodic Rate Cap: With respect to each Adjustable Rate Mortgage Loan
and any Adjustment Date therefor, a number of percentage points per annum that
is set forth in the related Final Mortgage Loan Schedule and in the related
Mortgage Note, which is the maximum amount by which the Mortgage Interest Rate
for such Adjustable Rate Mortgage Loan may increase (without regard to the
Maximum Mortgage Interest Rate) or decrease (without regard to the Minimum
Mortgage Interest Rate) on such Adjustment Date from the Mortgage Interest Rate
in effect immediately prior to such Adjustment Date.
Person: An individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Pooling and Servicing Agreement: The pooling and servicing agreement
dated as of March 1, 2006, by and among ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc.,
the Master Servicer, the Securities Administrator and Wachovia Bank, National
Association, as trustee.
Preliminary Mortgage Loan Schedule:
(1) the Seller's Mortgage Loan identifying number;
(2) the Mortgagor's first and last name;
(3) the Mortgage Interest Rate at origination;
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(4) the Mortgage Interest Rate in effect immediately following the
Cut-off Date;
(5) the original months to maturity;
(6) the original date of the Mortgage Loan and the remaining months to
maturity from the Cut-off Date, based on the original amortization
schedule;
(7) the stated maturity date;
(8) the amount of the Monthly Payment at origination;
(9) the amount of the Monthly Payment as of the Cut-off Date;
(10) the Stated Principal Balance of the Mortgage Loan as of the close
of business on the Cut-off Date;
(11) a code indicating whether the Mortgaged Property is
owner-occupied; and
(12) a code indicating the documentation style. Preliminary Servicing
Period: With respect to any Mortgage Loans, the period commencing on the
related Closing Date and ending on the date the Seller enters into
Reconstitution Agreements which amend or restate the servicing provisions
of this Agreement.
Primary Insurance Policy: A policy of primary mortgage guaranty
insurance issued by a Qualified Insurer.
Principal Prepayment: Any payment or other recovery of principal on a
Mortgage Loan which is received in advance of its scheduled Due Date, including
any prepayment penalty or premium thereon, which is not accompanied by an amount
of interest representing scheduled interest due on any date or dates in any
month or months subsequent to the month of prepayment.
Purchase Price: The price paid on the related Closing Date by the
Purchaser to the Seller pursuant to the related Purchase Price and Terms Letter
in exchange for the Mortgage Loans purchased on such Closing Date as calculated
as provided in Section 4.
Purchase Price and Terms Letter: With respect to any Mortgage Loan
Package purchased and sold on any Closing Date, the letter agreement between the
Purchaser and the Seller, in the form annexed hereto as Exhibit 9 (including any
exhibits, schedules and attachments thereto), setting forth the terms and
conditions of such transaction and describing the Mortgage Loans to be purchased
by the Purchaser on such Closing Date. A Purchase Price and Terms Letter may
relate to more than one Mortgage Loan Package to be purchased on one or more
Closing Dates hereunder.
Qualified Correspondent: Any Person from which the Seller purchased
Mortgage Loans, provided that the following conditions are satisfied: (i) such
Mortgage Loans were originated pursuant to an agreement between the Seller and
such Person that contemplated that
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such Person would underwrite mortgage loans from time to time, for sale to the
Seller, in accordance with underwriting guidelines designated by the Seller
("Designated Guidelines") or guidelines that do not vary materially from such
Designated Guidelines; (ii) such Mortgage Loans were in fact underwritten as
described in clause (i) above and were acquired by the Seller within 180 days
after origination; (iii) either (x) the Designated Guidelines were, at the time
such Mortgage Loans were originated, used by the Seller in origination of
mortgage loans of the same type as the Mortgage Loans for the Seller's own
account or (y) the Designated Guidelines were, at the time such Mortgage Loans
were underwritten, designated by the Seller on a consistent basis for use by
lenders in originating mortgage loans to be purchased by the Seller; and (iv)
the Seller employed, at the time such Mortgage Loans were acquired by the
Seller, pre-purchase or post-purchase quality assurance procedures (which may
involve, among other things, review of a sample of mortgage loans purchased
during a particular time period or through particular channels) designed to
ensure that Persons from which it purchased mortgage loans properly applied the
underwriting criteria designated by the Seller.
Qualified Depository: A depository the accounts of which are insured
by the FDIC through the BIF or the SAIF and the debt obligations of which are
rated AA or better by Standard & Poor's Corporation.
Qualified Insurer: An insurer acceptable to ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ Mac
which is rated A-/VIII or better in the current Best's Key Rating Guide
("Best's").
Qualified Substitute Mortgage Loan: A mortgage loan substituted for a
Deleted Mortgage Loan pursuant to the terms of this Agreement which must, on the
date of such substitution, (i) have an outstanding principal balance, after
application of all scheduled payments of principal and interest due during or
prior to the month of substitution, not in excess of the Stated Principal
Balance of the Deleted Mortgage Loan as of the Due Date in the calendar month
during which the substitution occurs, (ii) have a Mortgage Interest Rate not
less than (and not more than one percentage point in excess of) the Mortgage
Interest Rate of the Deleted Mortgage Loan, (iii) have a Net Mortgage Rate equal
to the Net Mortgage Rate of the Deleted Mortgage Loan, (iv) have a remaining
terms to maturity not greater than (and not more than one year less than) that
of the Deleted Mortgage Loan, (v) have the same Due Date as the Due Date on the
Deleted Mortgage Loan, (vi) have a Loan-to-Value Ratio as of the date of
substitution equal to or lower than the Loan-to-Value Ratio of the Deleted
Mortgage Loan as of such date, (vii) be covered under a Primary Insurance Policy
if such Qualified Substitute Mortgage Loan has a Loan-to-Value Ratio in excess
of 80%, (viii) conform to each representation and warranty set forth in Section
7.02 of this Agreement and (ix) be the same type of mortgage loan (i.e. fixed or
adjustable rate with the same Gross Margin and Index as the Deleted Mortgage
Loan). In the event that one or more mortgage loans are substituted for one or
more Deleted Mortgage Loans, the amounts described in clause (i) hereof shall be
determined on the basis of aggregate principal balances, the Mortgage Interest
Rates described in clause (ii) hereof shall be determined on the basis of
weighted average Mortgage Interest Rates, the Net Mortgage Rates described in
clause (iii) hereof shall be satisfied as to each such mortgage loan, the terms
described in clause (iv) shall be determined on the basis of weighted average
remaining terms to maturity, the Loan-to-Value Ratios described in clause (vi)
hereof shall be satisfied as to each such mortgage loan and, except to the
extent otherwise provided in this sentence, the representations and
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warranties described in clause (viii) hereof must be satisfied as to each
Qualified Substitute Mortgage Loan or in the aggregate, as the case may be.
Rate/Term Refinancing: A Refinanced Mortgage Loan, the proceeds of
which are not in excess of the existing first mortgage loan on the related
Mortgaged Property and related closing costs, and were used exclusively to
satisfy the then existing first mortgage loan of the Mortgagor on the related
Mortgaged Property and to pay related closing costs.
Reconstitution Agreements: The agreement or agreements entered into by
the Seller and the Purchaser and/or certain third parties on the Reconstitution
Date or Dates with respect to any or all of the Mortgage Loans serviced
hereunder, in connection with a Whole Loan Transfer or a Securitization
Transaction as provided in Section 12.
Reconstitution: Any Securitization Transaction or Whole Loan Transfer.
Reconstitution Date: The date or dates on which any or all of the
Mortgage Loans serviced under this Agreement shall be removed from this
Agreement and reconstituted as part of a Whole Loan Transfer or Securitization
Transaction pursuant to Section 12 hereof.
Record Date: With respect to each Remittance Date, the last Business
Day of the month immediately preceding the month in which such Remittance Date
occurs.
Refinanced Mortgage Loan: A Mortgage Loan the proceeds of which were
not used to purchase the related Mortgaged Property.
Regulation AB: Subpart 229.1100 - Asset Backed Securities (Regulation
AB), 17 C.F.R. Sections 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
REMICs, which appear in Sections 860A through 860G of the Code, and related
provisions, and proposed, temporary and final regulations and published rulings,
notices and announcements promulgated thereunder, as the foregoing may be in
effect from time to time.
Remittance Date: The eighteenth (18th) day of each month, commencing
on the eighteenth day of the month next following the month in which the related
Cut-off Date occurs, or if such eighteenth (18th) day is not a Business Day, the
first Business Day immediately preceding such eighteenth (18th) day.
REO Account: The separate trust account or accounts created and
maintained pursuant to this Agreement which shall be entitled "GreenPoint
Mortgage Funding Inc., in trust
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for the Purchaser, as of [date of acquisition of title], Fixed and Adjustable
Rate Mortgage Loans".
REO Disposition: The final sale by the Seller of any REO Property.
REO Property: A Mortgaged Property acquired as a result of the
liquidation of a Mortgage Loan.
Repurchase Price: With respect to any Mortgage Loan, a price equal to
(i) the Stated Principal Balance of such Mortgage Loan, plus (ii) interest on
such Stated Principal Balance at the Mortgage Interest Rate from and including
the last Due Date through which interest has been paid by or on behalf of the
Mortgagor to the first day of the month following the date of repurchase, less
amounts received in respect of such repurchased Mortgage Loan which are being
held in the Custodial Account for distribution in connection with such Mortgage
Loan, plus (iii) any costs and damages incurred by the trust with respect to any
securitization of the Mortgage Loan in connection with any violation by such
Mortgage Loan of any predatory- or abusive-lending law.
Residential Dwelling: Any one of the following: (i) a detached
one-family dwelling, (ii) a detached two- to four-family dwelling, (iii) a
one-family dwelling unit in a ▇▇▇▇▇▇ ▇▇▇ eligible condominium project, or (iv) a
detached one-family dwelling in a planned unit development, none of which is a
co-operative, mobile or manufactured home.
SAIF: The Savings Association Insurance Fund, or any successor
thereto.
Securities Act: The Securities Act of 1933, as amended.
Securities Administrator: ▇▇▇▇▇ Fargo Bank, N.A.
Securitization Transaction: Any transaction involving either (1) a
sale or other transfer of some or all of the Mortgage Loans directly or
indirectly to an issuing entity in connection with an issuance of publicly
offered or privately placed, rated or unrated mortgage-backed securities or (2)
an issuance of publicly offered or privately placed, rated or unrated
securities, the payments on which are determined primarily by reference to one
or more portfolios of residential mortgage loans consisting, in whole or in
part, of some or all of the Mortgage Loans.
Seller Information: As defined in Subsection 12.05(a).
Servicer: As defined in Subsection 12.04(c).
Servicing Addendum: The terms and conditions attached hereto as
Exhibit 8 which will govern the servicing of the Mortgage Loans by Seller during
the Preliminary Servicing Period.
Servicing Advances: All customary, reasonable and necessary
"out-of-pocket" costs and expenses incurred by the Seller in the performance of
its servicing obligations, including, but not limited to, the cost of (i)
preservation, restoration and repair of a Mortgaged
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Property, (ii) any enforcement or judicial proceedings with respect to a
Mortgage Loan, including foreclosure actions and (iii) the management and
liquidation of REO Property.
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 servicing fee the Purchaser shall pay to the Seller, which shall, for
each month, be equal to one-twelfth of the product of (a) the Servicing Fee Rate
and (b) the unpaid principal balance of the Mortgage Loan. Such fee shall be
payable monthly, computed on the basis of the same principal amount and period
respectively 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 (including recoveries with respect to
interest from Liquidation Proceeds and other proceeds, to the extent permitted
by Section 11.05) of related Monthly Payment collected by the Seller, or as
otherwise proved under Section 11.05. If the Preliminary Servicing Period
includes any partial month, the Servicing Fee for such month shall be pro rated
at a per diem rate based upon a 30-day month.
Servicing Fee Rate: With respect to each Mortgage Loan, 0.375% 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 or the Custodian and copies of the
Mortgage Loan Documents.
S&P: Standard & Poor's Ratings Services, a Division of the ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc. or its successor in interest.
Stated Principal Balance: As to each Mortgage Loan as of any date of
determination, (i) the principal balance of the Mortgage Loan as of the Cut-off
Date after giving effect to payments of principal due on or before such date,
whether or not collected from the Mortgagor on or before such date, minus (ii)
all amounts previously distributed to the Purchaser with respect to the related
Mortgage Loan representing payments or recoveries of principal.
Static Pool Information: Static pool information as described in Item
1105(a)(1)-(3) and 1105(c) of Regulation AB.
Subcontractor: Any vendor, subcontractor or other Person that is not
responsible for the overall servicing (as "servicing" is commonly understood by
participants in the mortgage-backed securities market) of Mortgage Loans but
performs one or more discrete functions identified in Item 1122(d) of Regulation
AB with respect to Mortgage Loans under the direction or authority of the Seller
or a Subservicer.
Subservicer: Any Person that services Mortgage Loans on behalf of the
Seller 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 Seller under
this Agreement or any Reconstitution Agreement that are identified in Item
1122(d) of Regulation AB.
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Termination Fee: the higher of the product of 1.5% and the aggregate
Stated Principal Balance or the current market value of the related servicing
rights.
Third-Party Originator: Each Person, other than a Qualified
Correspondent, that originated Mortgage Loans acquired by the Seller.
Warranty ▇▇▇▇ of Sale: A Warranty ▇▇▇▇ of Sale with respect to the
Mortgage Loans purchased on a Closing Date in the form annexed hereto as Exhibit
4.
Whole Loan Transfer: Any sale or transfer of some or all of the
Mortgage Loans, other than a Securitization Transaction.
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
related Cut-off Date in an amount as set forth in the related Purchase Price and
Terms Letter, or in such other amount as agreed by the Purchaser and the Seller
as evidenced by the actual aggregate principal balance of the Mortgage Loans
accepted by the Purchaser on the related Closing Date. The obligation of the
Purchaser to purchase any Mortgage Loan from the Seller on any particular
Closing Date shall be subject to the satisfaction of the conditions precedent to
the Purchaser's obligation to purchase set forth in Section 8.
SECTION 3. Mortgage Loan Schedules.
Prior to the date on which the Seller and the Purchaser execute a
Purchase Price and Terms Letter, the Seller shall provide the Purchaser with the
Preliminary Mortgage Loan Schedule. The Seller shall deliver the Final Mortgage
Loan Schedule for a Mortgage Loan Package to be purchased on a particular
Closing Date to the Purchaser at least five (5) Business Days prior to the
related Closing Date.
SECTION 4. Purchase Price.
The Purchase Price for each Mortgage Loan listed on the related Final
Mortgage Loan Schedule shall be the percentage of par as stated in the related
Purchase Price and Terms Letter (subject to adjustment as provided therein),
multiplied by its Stated Principal Balance as of the related Cut-off Date. If so
provided in the related Purchase Price and Terms Letter, portions of the
Mortgage Loans shall be priced separately.
In addition to the Purchase Price as described above, the Initial
Purchaser shall pay to the Seller, at closing, accrued interest on the Stated
Principal Balance of each Mortgage Loan as of the related Cut-off Date at the
Net Mortgage Rate from the related Cut-off Date through the day prior to the
related Closing Date, both inclusive.
The Purchaser shall own and be entitled to receive with respect to
each Mortgage Loan purchased, (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
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Seller after the related Cut-off Date shall belong to the Seller), and (3) all
payments of interest on the Mortgage Loans net of the Servicing Fee (minus that
portion of any such interest payment that is allocable to the period prior to
the related Cut-off Date). The Stated Principal Balance of each Mortgage Loan as
of the related Cut-off Date is determined after application to the reduction of
principal of payments of principal due on or before the related Cut-off Date
whether or not collected. Therefore, for the purposes of this Agreement,
payments of scheduled principal and interest prepaid for a Due Date beyond the
related Cut-off Date shall not be applied to the principal balance as of the
related Cut-off Date. Such prepaid amounts (minus the applicable Servicing Fee)
shall be the property of the Purchaser. The Seller shall deposit any such
prepaid amounts into the Custodial Account, which account is established for the
benefit of the Purchaser, for remittance by the Seller to the Purchaser on the
first related Remittance Date. All payments of principal and interest, less the
applicable Servicing Fee, due on a Due Date following the related Cut-off Date
shall belong to the Purchaser.
SECTION 5. Examination of Mortgage Files.
In addition to the rights granted to the Initial Purchaser under the
related Purchase Price and Terms Letter to underwrite the Mortgage Loans and
review the Mortgage Files prior to the Closing Date, prior to the related
Closing Date, the Seller shall (a) deliver to the Custodian in escrow, for
examination with respect to each Mortgage Loan to be purchased on such Closing
Date, the related Mortgage File, including the Assignment of Mortgage,
pertaining to each Mortgage Loan, or (b) make the related Mortgage File
available to the Initial Purchaser for examination at the Seller's offices or
such other location as shall otherwise be agreed upon by the Initial Purchaser
and the Seller. Such examination may be made by the Initial Purchaser or its
designee at any reasonable time before or after the related Closing Date. If the
Initial Purchaser makes such examination prior to the related Closing Date and
identifies any Mortgage Loans that do not conform to the terms of the related
Purchase Price and Terms Letter or the Initial Purchaser's underwriting
standards, such Mortgage Loans may, at the Initial Purchaser's option, be
rejected for purchase by the Initial Purchaser. If not purchased by the Initial
Purchaser, such Mortgage Loans shall be deleted from the related Final Mortgage
Loan Schedule and may be replaced by a Qualified Substitute Mortgage Loan
pursuant to Section 7. The Initial Purchaser may, at its option and without
notice to the Seller, purchase all or part of any Mortgage Loan Package without
conducting any partial or complete examination. The fact that the Initial
Purchaser has conducted or has determined not to conduct any partial or complete
examination of the Mortgage Files shall not affect the Initial Purchaser's (or
any of its successors') rights to demand repurchase or other relief or remedy
provided for in this Agreement.
SECTION 6. Conveyance from Seller to Initial Purchaser.
Subsection 6.01 Conveyance of Mortgage Loans; Possession of Servicing
Files. The Seller, simultaneously with the payment of the Purchase Price, shall
execute and deliver to the Initial Purchaser a Warranty ▇▇▇▇ of Sale with
respect to the related Mortgage Loan Package in the form attached hereto as
Exhibit 4. The Servicing File retained by the Seller with respect to each
Mortgage Loan pursuant to this Agreement shall be appropriately identified in
the Seller's computer system to reflect clearly the sale of such related
Mortgage Loan to the Purchaser. The Seller shall release from its custody the
contents of any Servicing File retained
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by it only in accordance with this Agreement, except when such release is
required in connection with a repurchase of any such Mortgage Loan pursuant to
Subsection 7.03 or 7.04.
The contents of each Mortgage File not delivered to the Custodian are
and shall be held in trust by the Seller for the benefit of the Purchaser as the
owner thereof. The 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 Custodian. The possession of each Servicing
File by the Seller 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. Upon the sale of the Mortgage Loans the
ownership of each Mortgage Note, the related Mortgage and the related 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 Seller shall vest
immediately in the Purchaser and shall be retained and maintained by the Seller,
in trust, at the will of the Purchaser and only in such custodial capacity. Each
Servicing File shall be segregated from the other books and records of the
Seller and shall be marked appropriately to reflect clearly the sale of the
related Mortgage Loan to the Purchaser. The Seller 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
Seller's servicing of the Mortgage Loans or is in connection with a repurchase
of any Mortgage Loan.
Subsection 6.02 Books and Records. Record title to each Mortgage and
the related Mortgage Note as of the related Closing Date shall be in the name of
the Seller, the Purchaser, the Custodian or one or more designees of the
Purchaser, as the Purchaser shall designate. Notwithstanding the foregoing,
beneficial ownership of each Mortgage and the related Mortgage Note shall be
vested solely in the Purchaser or the appropriate designee of the Purchaser, as
the case may be. All rights arising out of the Mortgage Loans including, but not
limited to, all funds received by the Seller after the related Cut-off Date on
or in connection with a Mortgage Loan as provided in Section 4 shall be vested
in the Purchaser or one or more designees of the Purchaser; provided, however,
that all such funds received on or in connection with a Mortgage Loan as
provided in Section 4 shall be received and held by the Seller in trust for the
benefit of the Purchaser or the assignee of the Purchaser, as the case may be,
as the owner of the Mortgage Loans pursuant to the terms of this Agreement.
It is the express intention of the parties that the transactions
contemplated by this Agreement be, and be construed as, a sale of the Mortgage
Loans by the Seller and not a pledge of the Mortgage Loans by the Seller to the
Purchaser to secure a debt or other obligation of the Seller. Consequently, the
sale of each Mortgage Loan shall be reflected as a sale on the Seller's business
records, tax returns and financial statements.
The Seller shall keep at its servicing office books and records in
which, subject to such reasonable regulations as it may prescribe, the Seller
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 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 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,
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however, that (i) the transferee will not be deemed to be a Purchaser hereunder
binding upon the Seller unless such transferee shall agree in writing to be
bound by the terms of this Agreement and an original counterpart of the
instrument of hereto executed by the transferee shall have been delivered to the
Seller. The Purchaser also shall advise the Seller of the transfer. Upon receipt
of notice of the transfer, the Seller 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.
Subsection 6.03 Delivery of Mortgage Loan Documents. The Seller shall
from time to time in connection with each Closing Date, at least five (5)
Business Days prior to such Closing Date, deliver and release to the Custodian
the Mortgage Loan Documents with respect to each Mortgage Loan to be purchased
and sold on the related Closing Date and set forth on the related Final Mortgage
Loan Schedule delivered with such Mortgage Loan Documents.
The Custodian shall certify its receipt of all such Mortgage Loan
Documents for the related Closing Date, pursuant to an initial custody receipt
and initial certification of the Custodian.
The Seller shall forward to the Custodian original documents
evidencing an assumption, modification, consolidation or extension of any
Mortgage Loan entered into in accordance with this Agreement within two weeks of
their execution, provided, however, that the Seller shall provide the Custodian
with a certified true copy of any such document submitted for recordation within
two 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 ninety days of its submission for recordation.
SECTION 7. Representations, Warranties and Covenants of the Seller:
Remedies for Breach.
Subsection 7.01 Representations and Warranties Respecting the Seller.
The Seller represents, warrants and covenants to the Purchaser as of the date
hereof, as of the date of each respective Purchase Price and Terms Letter, and
as of each respective Closing Date or as of such date specifically provided
herein or in the applicable Warranty ▇▇▇▇ of Sale:
(a) Due Organization and Authority. The Seller is duly organized,
validly existing and in good standing under the laws of the state 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. 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 except as the
enforceability thereof may be limited by bankruptcy, insolvency or
reorganization;
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(b) Ordinary Course of Business. The execution and delivery of this
Agreement by the Seller and the performance of and compliance with the terms of
this Agreement will not violate the Seller's charter or articles of
incorporation or by-laws or any legal restriction or constitute a default under
or result in a breach or acceleration of, any material contract, agreement or
other instrument to which the Seller is a party or which may be applicable to
the Seller or its assets. The Seller is not in violation of, and the execution
and delivery of this Agreement by the Seller and its performance and compliance
with the terms of this Agreement will not constitute a violation with respect
to, any order or decree of any court or any order or regulation of any federal,
state, municipal or governmental agency having jurisdiction over the Seller or
its assets, which violation might have consequences that would materially and
adversely affect the condition (financial or otherwise) or the operation of the
Seller or its assets or might have consequences that would materially and
adversely affect the performance of its obligations and duties hereunder;
(c) Ability to Service. The Seller is an approved seller/servicer of
conventional residential Mortgage Loans for ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ 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 Seller
is in good standing to sell and service mortgage loans for ▇▇▇▇▇▇ Mae and
▇▇▇▇▇▇▇ Mac and is a HUD approved mortgagee pursuant to Section 203 of the
National Housing Act. No event has occurred, including but not limited to a
change in insurance coverage, which would make the Seller unable to comply with
▇▇▇▇▇▇ Mae, ▇▇▇▇▇▇▇ Mac or HUD eligibility requirements or which would require
notification to ▇▇▇▇▇▇ Mae, ▇▇▇▇▇▇▇ Mac or HUD. The Seller is a member of MERS
in good standing, and will comply in all material respects with the rules and
procedures of MERS in connection with the servicing of the MERS Mortgage Loans
for as long as such Mortgage Loans are registered with MERS;
(d) 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. The Seller is solvent and the sale of the Mortgage
Loans is not undertaken to hinder, delay or defraud any of the Seller's
creditors;
(e) Documents Delivered to Custodian. The Mortgage Loan Documents have
been delivered to the Custodian. With respect to each Mortgage Loan, the Seller
is in possession of a complete Mortgage File in compliance with Exhibit 5,
except for such documents as have been delivered to the Custodian;
(f) Record Title. Immediately prior to the payment of the Purchase
Price for each Mortgage Loan, the Seller was the owner of record of the related
Mortgage and the indebtedness evidenced by the related Mortgage Note and upon
the payment of the Purchase Price by the Purchaser, in the event that the Seller
retains record title, the Seller shall retain such record title to each
Mortgage, each related Mortgage Note and the related Mortgage Files with respect
thereto in trust for the Purchaser as the owner thereof and only for the purpose
of servicing and supervising the servicing of each Mortgage Loan;
(g) No Litigation Pending. There are no actions or proceedings
against, or investigations of, the Seller before any court, administrative or
other tribunal (A) that might prohibit its entering into this Agreement, (B)
seeking to prevent the sale of the Mortgage
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Loans or the consummation of the transactions contemplated by this Agreement or
(C) that might prohibit or materially and adversely affect the performance by
the Seller of its obligations under, or the validity or enforceability 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 Seller of, or compliance by the Seller with,
this Agreement or the consummation of the transactions contemplated by this
Agreement, except for such consents, approvals, authorizations or orders, if
any, that have been obtained prior to the Closing Date;
(i) Ordinary Course of Business. The consummation of the transactions
contemplated by this Agreement are in the ordinary course of business of the
Seller, and the transfer, assignment and conveyance of the Mortgage Notes and
the Mortgages by the Seller pursuant to this Agreement are not subject to the
bulk transfer or any similar statutory provisions in effect in any jurisdiction;
(j) Accurate Delinquency and Foreclosure Information. The information
delivered by the Seller to the Purchaser with respect to the Seller's loan loss,
foreclosure and delinquency experience for the twelve (12) months immediately
preceding the Initial Closing Date on mortgage loans underwritten to the same
standards as the Mortgage Loans and covering mortgaged properties similar to the
Mortgaged Properties, is true and correct in all material respects;
(k) No Untrue Information. Neither this Agreement nor any written
statement, report or other document prepared and furnished or to be prepared and
furnished by the Seller pursuant to this Agreement or in connection with the
transactions contemplated hereby contains any untrue statement of material fact
or omits to state a material fact necessary to make the statements contained
herein or therein not misleading;
(l) Selection Process. The Mortgage Loans were selected from among the
outstanding adjustable rate one- to four-family mortgage loans in the Seller's
portfolio at the Closing Date as to which the representations and warranties set
forth in Section 7.02 could be made and such selection was not made in a manner
so as to affect adversely the interests of the Purchaser;
(m) (Pool Characteristics. The Pool Characteristics of the Mortgage
Loans purchased on each Closing Date shall conform to the characteristics
described in the Warranty ▇▇▇▇ of Sale, attached as Exhibit 4 hereto.
(n) Sale Treatment. The Seller has determined that the disposition of
the Mortgage Loans pursuant to this Agreement will be afforded sale treatment
for accounting and tax purposes;
(o) Financial Statements. The Seller has delivered to the Purchaser
financial statements as to its last three complete fiscal years and any later
quarter ended more than 60 days prior to the execution of this Agreement. All
such financial statements fairly present the pertinent results of operations and
changes in financial position at the end of each such period of the Seller and
its subsidiaries and have been prepared in accordance with
-22-
generally accepted accounting principles consistently applied throughout the
periods involved, except as set forth in the notes thereto. In addition, the
Seller has delivered information as to its loan gain and loss experience for the
immediately preceding three-year period, in each case with respect to mortgage
loans owned by it and such mortgage loans serviced for others during such
period, and all such information so delivered is true and correct in all
material respects. There has been no change in the business, operations,
financial condition, properties or assets of the Seller since the date of the
Seller's financial statements that would have a material adverse effect on its
ability to perform its obligations under this Agreement. The Seller has
completed any forms requested by the Purchaser in a timely manner and in
accordance with the provided instructions;
(p) No Brokers' Fees. 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;
(q) Fair Consideration. The consideration received by the Seller upon
the sale of the Mortgage Loans under this Agreement constitutes fair
consideration and reasonably equivalent value for the Mortgage Loans; and
(r) Reasonable Servicing Fee. The Seller acknowledges and agrees that
the Servicing Fee, as calculated at the Servicing Fee Rate, 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.
Subsection 7.02 Representations and Warranties Regarding Individual
Mortgage Loans. The Seller hereby represents and warrants to the Purchaser that,
as to each Mortgage Loan, as of the related Closing Date for such Mortgage Loan:
(a) Mortgage Loans as Described. The information set forth in the
related Final Mortgage Loan Schedule and the tape delivered to the Purchaser is
complete, true and correct;
(b) Mortgage Loans in Compliance with Purchase Price and Terms Letter.
The Mortgage Loan is in compliance with all requirements set forth in the
related Purchase Price and Terms Letter, and the characteristics of the related
Mortgage Loan Package as set forth in the related Purchase Price and Terms
Letter are true and correct;
(c) Payments Current. All payments required to be made up to the
related Closing Date for the Mortgage Loan under the terms of the Mortgage Note
have been made and credited. No payment required under the Mortgage Loan is
delinquent nor has any payment under such Mortgage Loan been 30 or more days
delinquent at any time since origination;
(d) No Outstanding Charges. There are no defaults by the Seller or any
prior originator in complying with the terms of the Mortgage, and all taxes,
ground rents, governmental assessments, insurance premiums, leasehold payments,
water, sewer and municipal charges which previously became due and owing have
been paid, or escrow funds
-23-
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. Neither the Seller or, to the best of the Seller's knowledge, any prior
originator or servicer has advanced funds, or induced, solicited or knowingly
received any advance from any party other than the Mortgagor, directly or
indirectly, for the payment of any amount due under the Mortgage Loan;
(e) Original Terms Unmodified. The terms of the Mortgage Note and the
Mortgage have not been impaired, waived, altered or modified in any respect,
except by written instruments, recorded in the applicable public recording
office if necessary to maintain the lien priority of the Mortgage, and which
have been delivered to the Custodian; the substance of any such waiver,
alteration or modification has been approved by the insurer under the Primary
Insurance Policy, if any, and the title insurer, to the extent required by the
related policy, and is reflected on the related Final Mortgage Loan Schedule. No
instrument of waiver, alteration or modification has been executed, and no
Mortgagor has been released, in whole or in part, except in connection with an
assumption agreement approved by the insurer under the Primary Insurance Policy,
if any, the title insurer, to the extent required by the policy, and which
assumption agreement has been delivered to the Custodian and the terms of which
are reflected in the related Final Mortgage Loan Schedule;
(f) No Defenses. The Mortgage Note and the Mortgage are not subject to
any right of rescission, set-off, counterclaim or defense, including the defense
of usury, nor will the operation of any of the terms of the Mortgage Note and
the Mortgage, or the exercise of any right thereunder, render 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, to the best of the Seller's knowledge, no such right of rescission,
set-off, counterclaim or defense has been asserted with respect thereto; and the
Mortgagor was not a debtor in any state or federal bankruptcy or insolvency
proceeding at the time the Mortgage Loan was originated;
(g) Hazard Insurance. All buildings or other improvements upon the
Mortgaged Property are insured by a Qualified Insurer acceptable to ▇▇▇▇▇▇ ▇▇▇
and ▇▇▇▇▇▇▇ Mac and to lending institutions 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 the Servicing Addendum. All such insurance policies are in full
force and effect and contain a standard mortgagee clause naming the Seller, its
successors and assigns as mortgagee and all premiums thereon have been paid. If
the Mortgaged Property is in an area identified on a Flood Hazard Map or Flood
Insurance Rate Map issued by the Federal Emergency Management Agency as having
special flood hazards (and such flood insurance has been made available) a flood
insurance policy meeting the requirements of the current guidelines of the
Federal Insurance Administration is in effect which policy conforms to the
requirements of ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ Mac. 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 Mortgagor's cost and expense and to seek
reimbursement therefor from the Mortgagor. Where required by state law or
regulation, the Mortgagor has been given an opportunity to choose the carrier of
the required hazard insurance, provided the policy is not a "master" or
"blanket" hazard insurance policy covering the common facilities of a planned
unit
-24-
development. The hazard insurance policy is the valid and binding
obligation of the insurer, is in full force and effect, and will be in full
force and effect and inure to the benefit of the Purchaser upon the consummation
of the transactions contemplated by this Agreement. The Seller has not engaged
in, and has no knowledge of the Mortgagor's or any Subservicer's having engaged
in, any act or omission which would impair the coverage of any such policy, the
benefits of the endorsement provided for herein, or the validity and binding
effect of either, including without limitation, no unlawful fee, commission,
kickback or other unlawful compensation or value of any kind has been or will be
received, retained or realized by any attorney, firm or other person or entity,
and no such unlawful items have been received, retained or realized by the
Seller;
(h) Compliance with Applicable Law. 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, fair housing, disclosure laws or all predatory and abusive
lending laws applicable to the origination and servicing of the Mortgage Loan
have been complied with and the consummation of the transactions contemplated
hereby will not involve the violation of any such laws; 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;
(i) No Satisfaction of Mortgage. The Mortgage has not been satisfied,
cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged
Property has not been released from the lien of the Mortgage, in whole or in
part, nor has any instrument been executed that would effect any such
satisfaction, cancellation, subordination, rescission or release. 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;
(j) Valid First Lien. The Mortgage is a valid, existing and
enforceable first lien on the Mortgaged Property, including all improvements on
the Mortgaged Property, free and clear of all adverse claims, liens and
encumbrances having priority over the lien of the Mortgage, subject only to (a)
the lien of current real property taxes and assessments not yet due and payable,
(b) covenants, conditions and restrictions, rights of way, easements and other
matters of the public record as of the date of recording being acceptable to
mortgage lending institutions generally and specifically referred to in the
lender's title insurance policy delivered to the originator of the Mortgage Loan
and which do not adversely affect the Appraised Value of the Mortgaged Property,
and (c) other matters to which like properties are commonly subject which do not
materially interfere with the benefits of the security intended to be provided
by the Mortgage or the use, enjoyment, value or marketability of the related
Mortgaged Property. Any security agreement, chattel mortgage or equivalent
document related to and delivered in connection with the Mortgage Loan
establishes and creates a valid, existing and enforceable first lien and first
priority security interest on the property described therein and the Seller has
full right to sell and assign the same to the Purchaser. The Mortgaged Property
was not, as of the date of origination of the Mortgage Loan, subject to a
mortgage, deed of trust, deed to secure debt or other security instrument
creating a lien subordinate to the lien of the Mortgage;
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(k) Validity of Mortgage Documents. 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 accordance with its terms. The
documents, instruments and agreements submitted for loan underwriting were not
falsified and contain no untrue statement of material fact nor omit to state a
material fact required to be stated therein or necessary to make the information
and statements therein not misleading. To the best of the Seller's knowledge, no
fraud was committed in connection with the origination of the Mortgage Loan. The
Seller has reviewed all of the documents constituting the Servicing File and has
made such inquiries as it deems necessary to make and confirm the accuracy of
the representations set forth herein;
(l) Regarding the Mortgagor. To the best of the Seller's knowledge,
all parties to the Mortgage Note and the Mortgage had legal capacity to enter
into the Mortgage Loan and to execute and deliver the Mortgage Note and the
Mortgage, and the Mortgage Note and the Mortgage have been duly and properly
executed by such parties. The Mortgagor is one or more natural persons and/or
trustee for an Illinois land trust or a trustee under a "living trust" and such
"living trust" is in compliance with ▇▇▇▇▇▇ Mae guidelines for such trusts;
(m) Full Disbursement of Proceeds. The proceeds of the Mortgage Loan
have been fully disbursed to or for the account of the Mortgagor and there is no
obligation for the Mortgagee to advance additional funds thereunder and any and
all requirements as to completion of any on-site or off-site improvement and as
to disbursements of any escrow funds therefor have been complied with. All
costs, fees and expenses incurred in making or closing the Mortgage Loan and the
recording of the Mortgage have been paid, and the Mortgagor is not entitled to
any refund of any amounts paid or due to the Mortgagee pursuant to the Mortgage
Note or Mortgage;
(n) Doing Business. All parties which have had any interest in the
Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise, are (or,
during the period in which they held and disposed of such interest, were) (1) in
compliance with any and all applicable "doing business" and licensing
requirements of the laws of the state wherein the Mortgaged Property is located,
and (2) (a) organized under the laws of such state, (b) qualified to do business
in such state, (c) federal savings and loan associations or national banks
having principal offices in such state, or (d) not doing business in such state;
(o) Title Insurance. The Mortgage Loan is covered by an ALTA lender's
title insurance policy (which, in the case of an Adjustable Rate Mortgage Loan
has an adjustable rate mortgage endorsement in the form of ALTA 6.0 or 6.1)
acceptable to ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac, issued by a title insurer acceptable
to ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ Mac and qualified to do business in the jurisdiction
where the Mortgaged Property is located, insuring (subject to the exceptions
contained in (j) above) the Seller, its successors and assigns as to the first
priority lien of the Mortgage in the original principal amount of the Mortgage
Loan and, with respect to any Adjustable Rate Mortgage Loan, 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 the state law or regulation, the
Mortgagor has been given the opportunity to choose the carrier of the required
mortgage title insurance. Additionally, such lender's title insurance policy
affirmatively insures ingress and egress to and from the Mortgaged Property, and
against encroachments by or upon
-26-
the Mortgaged Property or any interest therein. The Seller is the sole insured
of such lender's title insurance policy, and such lender's title insurance
policy is in full force and effect and will be in full force and effect upon the
consummation of the transactions contemplated by this Agreement. To the best of
the Seller's knowledge, no claims have been made under such lender's title
insurance policy, and no prior holder of the related Mortgage, including the
Seller, has done, by act or omission, anything which would impair the coverage
of such lender's title insurance policy;
(p) 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 Seller nor its predecessors have waived any
default, breach, violation or event of acceleration;
(q) No Mechanics' Liens. There are no mechanics' or similar liens or
claims which have been filed for work, labor or material (and no rights are
outstanding that under law could give rise to such lien) affecting the related
Mortgaged Property which are or may be liens prior to, or equal or coordinate
with, the lien of the related Mortgage;
(r) Location of Improvements; No Encroachments. All improvements which
were considered in determining the Appraised Value of the related 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 Mortgage
Property is in violation of any applicable zoning law or regulation;
(s) Origination. The Mortgage Loan was originated by the Seller,
Qualified Correspondent, or by a savings and loan association, a savings bank, a
commercial bank or similar banking institution which is supervised and examined
by a federal or state authority, or by a mortgagee approved as such by the
Secretary of HUD pursuant to Sections 203 and 211 of the National Housing Act.
The Seller and all other 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) in compliance
with any and all applicable "doing business" and licensing requirements of the
laws of the state wherein the Mortgaged Property is located;
(t) Payment Terms. Principal payments on the Mortgage Loan commenced
no more than sixty days after the proceeds of the Mortgage Loan were disbursed.
The Mortgage Loan bears interest at the Mortgage Interest Rate. With respect to
each Mortgage Loan, the Mortgage Note is payable on the first day of each month
in Monthly Payments, which (i) in the case of a Fixed Rate Mortgage Loan, are
sufficient to fully amortize the original principal balance over the original
term thereof and to pay interest at the related Mortgage Interest Rate, (ii) in
the case of an Adjustable Rate Mortgage Loan, are changed on each Adjustment
Date, and in any case, are sufficient to fully amortize the original principal
balance over the original term thereof and to pay interest at the related
Mortgage Interest Rate or (iii) in the case of a Balloon Loan, are based on a
fifteen (15) or thirty (30) year amortization schedule, as set forth in the
related Mortgage Note, and a final monthly payment substantially greater than
-27-
the preceding monthly payment which is sufficient to amortize the remaining
principal balance of the Balloon Loan and to pay interest at the related
Mortgage Interest Rate. No Balloon Loan has an original stated maturity of less
than seven (7) years. The Index for each Adjustable Rate Mortgage Loan is as
defined in the related Purchase Price and Terms Letter. The Mortgage Note does
not permit negative amortization. No Mortgage Loan is a Convertible Mortgage
Loan and no Mortgage Loan is a simple interest Mortgage Loan;
(u) Collection Practices; Escrow Deposits; Interest Rate Adjustments.
The origination and collection practices used by the Seller with respect to each
Mortgage Note and Mortgage have been in all respects legal, proper, prudent and
customary in the mortgage origination and servicing industry. The Mortgage Loan
has been serviced by the Seller and, to the best of the Seller's knowledge, any
predecessor servicer in accordance with the terms of the Mortgage Note. With
respect to escrow deposits and Escrow Payments, if any, 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. No escrow deposits or Escrow Payments or
other charges or payments due the Seller have been capitalized under any
Mortgage or the related Mortgage Note and no such escrow deposits or Escrow
Payments are being held by the Seller for any work on a Mortgaged Property which
has not been completed. All Mortgage Interest Rate adjustments have been made in
strict compliance with state and federal law and the terms of the related
Mortgage Note. Any interest required to be paid pursuant to state and local law
has been properly paid and credited;
(v) Mortgaged Property Undamaged; No Condemnation Proceedings There is
no proceeding pending or, to the Seller's knowledge, threatened for the total or
partial condemnation of the Mortgaged Property and such property is in good
repair and 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;
(w) Customary Provisions. The Mortgage and related Mortgage Note
contain customary and enforceable provisions such as to render the rights and
remedies of the holder thereof adequate for the realization against the
Mortgaged Property of the benefits of the security provided thereby, including,
(a) in the case of a Mortgage designated as a deed of trust, by trustee's sale,
and (b) otherwise by judicial foreclosure. The Mortgaged Property has not been
subject to any bankruptcy proceeding or foreclosure proceeding and the Mortgagor
has not filed for protection under applicable bankruptcy laws. Upon default by a
Mortgagor on a Mortgage Loan and foreclosure on, or trustee's sale of, the
Mortgaged Property pursuant to the proper procedures, the holder of the Mortgage
Loan will be able to deliver good and merchantable title to the Mortgaged
Property. There is no homestead or other exemption available to 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;
(x) Conformance with Underwriting Guidelines. The Mortgage Loan was
underwritten in accordance with the underwriting guidelines of the Seller in
effect at the time the Mortgage Loan was originated, which underwriting
guidelines have been reviewed and
-28-
approved by the Seller prior to the related Closing Date. The Mortgage Note and
Mortgage are on forms acceptable to ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac;
(y) No Additional Collateral. The Mortgage Note is not and has not
been secured by any collateral except the lien of the corresponding Mortgage on
the Mortgaged Property and the security interest of any applicable security
agreement or chattel mortgage referred to in (j) above;
(z) Appraisal. The Mortgage File contains an appraisal of the related
Mortgaged Property which satisfied the standards of ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ Mac
and was made and signed, prior to the approval of the Mortgage Loan application,
by a qualified appraiser, duly appointed by the Seller, who had no interest,
direct or indirect in the Mortgaged Property or in any loan made on the security
thereof, whose compensation is not affected by the approval or disapproval of
the Mortgage Loan and who met the minimum qualifications of ▇▇▇▇▇▇ Mae and
▇▇▇▇▇▇▇ Mac. Each appraisal of the Mortgage Loan was made in accordance with the
requirements of 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;
(aa) 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 Purchaser to the trustee
under the deed of trust, except in connection with a trustee's sale after
default by the Mortgagor;
(bb) Buydown Loans; No Graduated Payments. The Mortgage Loan does not
contain "graduated payment" features; to the extent any Mortgage Loan contains
any buydown provisions, such buydown funds have been maintained and administered
in accordance with, and such Mortgage Loan otherwise complies with, ▇▇▇▇▇▇
▇▇▇/▇▇▇▇▇▇▇ Mac requirements relating to the buydown loans;
(cc) Mortgagor Acknowledgment. The Mortgagor has executed a statement
to the effect that the Mortgagor has received all disclosure materials required
by applicable law with respect to the making of fixed rate mortgage loans in the
case of Fixed Rate Mortgage Loans, and adjustable rate mortgage loans in the
case of Adjustable Rate Mortgage Loans and rescission materials with respect to
Refinanced Mortgage Loans, and such statement is and will remain in the Mortgage
File;
(dd) No Construction Loans. No Mortgage Loan was made in connection
with (a) the construction or rehabilitation of a Mortgaged Property or (b)
facilitating the trade-in or exchange of a Mortgaged Property;
(ee) Acceptable Investment. The Seller has no knowledge of any
circumstances or condition with respect to the Mortgage, the Mortgaged Property,
the Mortgagor or the Mortgagor's credit standing that can reasonably be expected
to cause the Mortgage Loan to be an unacceptable investment, cause the Mortgage
Loan to become delinquent, or adversely affect the value of the Mortgage Loan;
-29-
(ff) LTV, PMI Policy. At origination, no Mortgage Loan had a LTV
greater than 95% and no Mortgage Loan had a CLTV greater than 100% (or such
other percentages as stated in the related Trade Confirmation). The original LTV
of the Mortgage Loan either was not more than 80% (or such other percentage as
stated in the related Trade Confirmation), or (i) the excess over 75% is and
will be insured as to payment defaults by a PMI Policy until the LTV of such
Mortgage Loan is reduced to (A) 80% (or such other percentage as stated in the
related Trade Confirmation) or (B) that amount for which ▇▇▇▇▇▇ Mae no longer
requires such insurance to be maintained, or (ii) is subject to an LPMI Policy,
which will stay in effect for the life of the Mortgage Loan. All provisions of
such PMI Policy have been and are being complied with, such policy is in full
force and effect, and all premiums due thereunder have been paid. No action,
inaction, or event has occurred and no state of facts exists that has, or will
result in the exclusion from, denial of, or defense to coverage. Any Mortgage
Loan subject to a PMI Policy obligates the Mortgagor thereunder to maintain the
PMI Policy and to pay all premiums and charges in connection therewith;
provided, that, with respect to LPMI Loans, the related Servicer is obligated
thereunder to maintain the 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 Final Mortgage Loan Schedule is net of any such insurance
premium;
(gg) Occupancy of Mortgaged Property. The Mortgaged Property is
lawfully occupied under applicable law; all inspections, licenses and
certificates required to be made or issued with respect to all occupied portions
of the Mortgaged Property and, with respect to the use and occupancy of the
same, including but not limited to certificates of occupancy, have been made or
obtained from the appropriate authorities;
(hh) No Misrepresentation or Fraud. No error, omission,
misrepresentation, negligence, fraud or similar occurrence with respect to a
Mortgage Loan has taken place on the part of the Seller or, to the best of the
Seller's knowledge, any person, including without limitation the Mortgagor, any
appraiser, any builder or developer, or any other party involved in the
origination of the Mortgage Loan or in the application of any insurance in
relation to such Mortgage Loan;
(ii) Transfer of Mortgage Loans. 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 (except with respect to
each MERS Designated Mortgage Loan ). Each original Mortgage was recorded and,
except for those Mortgage Loans subject to the MERS identification system, all
subsequent assignments of the original Mortgage (other than the assignment to
the Purchaser) have been recorded in the appropriate jurisdictions wherein such
recordation is necessary to perfect the lien thereof as against creditors of the
Seller, or is in the process of being recorded. On or prior to the Closing Date,
Seller has provided the Custodian and the Purchaser with a MERS Report listing
the Custodian as the Investor with respect to each MERS Designated Mortgage
Loan. With respect to each MERS Designated Mortgage Loan, the Seller has
designated the Custodian as the Investor and no Person is listed as Interim
Funder on the MERS(R) System;
(jj) Mortgage File. With respect to each Mortgage Loan, the Seller is
in possession of a complete Mortgage File except for the documents which have
been delivered
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to the Purchaser or the Custodian or which have been submitted for recording and
not yet returned;
(kk) Ownership. Immediately prior to the payment of the Purchase
Price, the Seller was the sole owner and holder of the Mortgage Loans and the
indebtedness evidenced by the Mortgage Note. The Mortgage Loans, including the
Mortgage Note and the Mortgage, were not assigned or pledged by the Seller and
the Seller had good and marketable title thereto, and the Seller had full right
to transfer and sell the Mortgage Loans to the Purchaser free and clear of any
encumbrance, participation interest, lien, equity, pledge, claim or security
interest and had full right and authority subject to no interest or
participation in, or agreement with any other party to sell or otherwise
transfer the Mortgage Loans. 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
Seller intends to relinquish all rights to monitor, possess and control the
Mortgage Loan except in connection with the servicing of the Mortgage Loan by
the Seller 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, except as provided in this Agreement or as otherwise agreed to by
the Seller and the Purchaser;
(ll) Consolidated Future Advances. Any principal advances made to the
Mortgagor prior to the Cut-off Date have been consolidated with the outstanding
principal amount secured by the Mortgage, and the secured principal amount, as
consolidated, bears a single interest rate and single repayment term. The lien
of the Mortgage securing the consolidated principal amount is expressly insured
as having first lien priority by a title insurance policy, an endorsement to the
policy insuring the mortgagee's consolidated interest or by other title evidence
acceptable to ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac. The consolidated principal amount does
not exceed the original principal amount of the Mortgage Loan;
(mm) No Balloon Payment. No Mortgage Loan other than a Balloon Loan
has a balloon payment feature;
(nn) Condominiums/ Planned Unit Developments. If the Residential
Dwelling on the Mortgaged Property is a condominium unit or a unit in a planned
unit development (other than a de minimis planned unit development) such
condominium or planned unit development project meets the eligibility
requirements of ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ Mac including ▇▇▇▇▇▇ Mae eligibility
requirements for sale to ▇▇▇▇▇▇ ▇▇▇ or is located in a condominium or planned
unit development project which has received ▇▇▇▇▇▇ Mae project approval and the
representations and warranties required by ▇▇▇▇▇▇ ▇▇▇ with respect to such
condominium or planned unit development have been made and remain true and
correct in all respects;
(oo) Downpayment. The source of the down payment with respect to each
Mortgage Loan has been fully verified by the Seller, if required by applicable
program guidelines;
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(pp) Calculation of Interest. Interest on each Mortgage Loan is
calculated on the basis of a 360-day year consisting of twelve 30-day months;
(qq) Environmental Matters. The Mortgaged Property is in material
compliance with all applicable local, state and federal environmental laws,
rules or regulations pertaining to environmental hazards including, without
limitation, asbestos, and neither the Seller nor, to the Seller's knowledge, the
related Mortgagor, has received any notice of any violation or potential
violation of such law nor is there any pending action or proceeding directly
involving any Mortgaged Property of which the Seller is aware in which
compliance with any environmental law, rule or regulation is an issue;
(rr) Ground Leases. With respect to any ground lease to which a
Mortgaged Property may be subject: (A) the Mortgagor is the owner of a valid and
subsisting leasehold interest under such ground lease; (B) such ground lease is
in full force and effect, unmodified and not supplemented by any writing or
otherwise; (C) all rent, additional rent and other charges reserved therein have
been fully paid to the extent payable as of the Closing Date; (D) the Mortgagor
enjoys the quiet and peaceful possession of the leasehold estate; (E) the
Mortgagor is not in default under any of the terms of such ground lease, and
there are no circumstances which, with the passage of time or the giving of
notice, or both, would result in a default under such ground lease; (F) the
lessor under such ground lease is not in default under any of the terms or
provisions of such ground lease on the part of the lessor to be observed or
performed; (G) the lessor under such ground lease has satisfied any repair or
construction obligations due as of the Closing Date pursuant to the terms of
such ground lease; (H) the execution, delivery and performance of the Mortgage
do not require the consent (other than those consents which have been obtained
and are in full force and effect) under, and will not contravene any provision
of or cause a default under, such ground lease; and (I) the term of such lease
does not terminate earlier than the maturity date of the Mortgage Note;
(ss) Predatory Lending Regulations; High Cost Loans. None of the
Mortgage Loans are classified as (a) "high cost" loans under the Home Ownership
and Equity Protection Act of 1994 ("HOEPA") or (b) "high cost," "threshold,"
"covered," or "predatory" loans under any other applicable state, federal or
local law (or a similarly classified loan using different terminology under a
law imposing heightened regulatory scrutiny or additional legal liability for
residential mortgage loans having high interest rates, points and/or fees). No
predatory, abusive or deceptive lending practices, including, without
limitation, the extension of credit without regard to the ability of the
Mortgagor to repay and the extension of credit which has no apparent benefit to
the Mortgagor, were employed in the origination of the Mortgage Loan. Each
Mortgage Loan is in compliance with the anti-predatory lending eligibility for
purchase requirements of ▇▇▇▇▇▇ Mae's Selling Guide. No Mortgage Loan is a High
Cost Loan or Covered Loan, as applicable (as such terms are defined in the then
current Standard & Poor's LEVELS(R) Glossary);
(tt) Location and Type of Mortgaged Property. The Mortgaged Property
is a fee simple property located in the state identified in the Final Mortgage
Loan Schedule and consists of a 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 low-rise condominium project, or an individual
unit in a planned unit development, provided, however,
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that any condominium project or planned unit development shall conform with the
applicable ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac requirements regarding such dwellings, and
no residence or dwelling is a mobile home or a manufactured dwelling. No portion
of the Mortgaged Property is used for commercial purposes;
(uu) Anti-Money Laundering Laws. As of the required compliance dates,
Seller has (i) complied with all applicable anti-money laundering laws and
regulations, including without limitation the USA Patriot Act of 2001 and the
Bank Secrecy Act (collectively, the "Anti-Money Laundering Laws"); (ii)
established an anti-money laundering compliance program as required by the
Anti-Money Laundering Laws; (iii) conducted the requisite due diligence in
connection with the origination of each Mortgage Loan for purposes of the
Anti-Money Laundering Laws, including with respect to the legitimacy of the
applicable Mortgagor and the origin of the assets used by the said Mortgagor to
purchase the property in question; and (iv) maintained, and will maintain,
sufficient information to identify the applicable Mortgagor for purposes of the
Anti-Money Laundering Laws. No Mortgage Loan is subject to nullification
pursuant to Executive Order 13224 (the "Executive Order") or the regulations
promulgated by the Office of Foreign Assets Control of the United States
Department of the Treasury (the "OFAC Regulations") or in violation of the
Executive Order or the OFAC Regulations, and no Mortgagor is subject to the
provisions of such Executive Order or the OFAC Regulations nor listed as a
"blocked person" for purposes of the OFAC Regulations;
(vv) Due on Sale. The Mortgage contains an enforceable provision for
the acceleration of the payment of the unpaid principal balance of the Mortgage
Loan in the event that the Mortgaged Property is sold or transferred without the
prior written consent of the Mortgage thereunder;
(ww) Servicemember's Relief Act. The Mortgagor has not notified the
Seller, and the Seller has no knowledge of any relief requested or allowed to
the Mortgagor under the Servicemembers' Civil Relief Act or any similar state or
local law;
(xx) [Reserved];
(yy) [Reserved];
(zz) No Denial of Insurance. No action, inaction, or event has
occurred and no state of exists or has existed that has resulted or will result
in the exclusion from, denial of, or defense to coverage under any applicable
pool insurance policy, special hazard insurance policy, PMI Policy or bankruptcy
bond, irrespective of the cause of such failure of coverage. In connection with
the placement of any such insurance, no commission, fee, or other compensation
has been or will be received by the Seller or any designee of the Seller or any
corporation in which the Seller or any officer, director, or employee had a
financial interest at the time of placement of such insurance. The Seller has
caused or will cause to be performed any and all acts required to preserve the
rights and remedies of the Purchaser in any insurance policies applicable to the
Mortgage Loans including, without limitation, any necessary notifications of
insurers, assignments of policies or interests therein, and establishments of
coinsured, joint loss payee and mortgagee rights in favor of the Purchaser;
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(aaa) Tax Service Contract The Seller has obtained a life of loan,
transferable real estate Tax Service Contract with an Approved Tax Service
Contract Provider on each Mortgage Loan and such contract is assignable without
penalty, premium or cost to the Purchaser;
(bbb) Flood Certification Contract. The Seller has obtained a life of
loan, transferable flood certification contract for each Mortgage Loan and such
contract is assignable without penalty, premium or cost to the Purchaser;
(ccc) [Reserved];
(ddd) Simple Interest Mortgage Loans. None of the Mortgage Loans are
simple interest Mortgage Loans;
(eee) Prepayment Penalty. With respect to any Mortgage Loan that
contains a provision permitting imposition of a Prepayment Charge: (a) the
Mortgage Loan provides some benefit to the Mortgagor (e.g., a rate or fee
reduction) in exchange for accepting such Prepayment Charge; (b) the Mortgage
Loan's originator offered the Mortgagor, or required any third party broker to
offer the Mortgagor the option of obtaining a Mortgage Loan that did not require
payment of such a Prepayment Charge; (c) the Prepayment Charge was adequately
disclosed to the Mortgagor pursuant to applicable state and federal law, (d)
except where allowed by applicable law, the duration of the prepayment period
shall not exceed three (3) years, and in no case shall the duration of the
prepayment period exceed five (5) years from the date of the Mortgage Note and
(e) such Prepayment Charge shall not be imposed in any instance where the
Mortgage Loan is accelerated or paid off in connection with the workout of a
delinquent mortgage or due to the Mortgagor's default, notwithstanding that the
terms of the Mortgage Loan or state or federal law might permit the imposition
of such Prepayment Charge;
(fff) Credit Reporting. The Seller and any predecessor servicer has
fully furnished, in accordance with the Fair Credit Reporting Act and its
implementing regulations, accurate and complete information (e.g., favorable and
unfavorable) on its borrower credit files to Equifax, Experian and Trans Union
Credit Information Company (three of the credit repositories) on a monthly
basis;
(ggg) Servicing Practices. Each Mortgage Loan has been serviced in all
material respects in compliance with 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;
(hhh) Single-Premium Credit Life Insurance. No Mortgagor was required
to purchase any credit life, disability, accident or health insurance product as
a condition of obtaining the extension of credit. No Mortgagor obtained a
prepaid single premium credit life, disability, accident or health insurance
policy in connection with the origination of the Mortgage Loan, and no proceeds
from any Mortgage Loan were used to finance single-premium credit insurance
policies as part of the origination of, or as a condition to closing, such
Mortgage Loan;
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(iii) Compliance with Texas Law Requirements. Each Mortgage Loan
originated in the state of Texas pursuant to Article XVI, Section 50(a)(6) of
the Texas Constitution (a "Texas Refinance Loan") has been originated in
compliance with the provisions of Article XVI, Section 50(a)(6) of the Texas
Constitution, Texas Civil Statutes and the Texas Finance Code. With respect to
each Texas Refinance Loan that is a Cash Out Refinancing, the related Mortgage
Loan Documents state that the Mortgagor may prepay such Texas Refinance Loan in
whole or in part without incurring a Prepayment Charge. The Company does not
collect any such Prepayment Charges in connection with any such Texas Refinance
Loan;
(jjj) Qualified Mortgage. 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);
(kkk) Higher Cost Loans. No Mortgagor was encouraged or required to
select a Mortgage Loan product offered by the Mortgage Loan's originator which
is a higher cost product designed for less creditworthy borrowers, taking into
account such facts as, without limitation, the mortgage loan's requirements and
the Mortgagor's credit history, income, assets and liabilities. Any borrower who
sought financing through a Mortgage Loan originator's higher-priced subprime
lending channel was directed towards or offered the Mortgage Loan originator's
standard mortgage line if the borrower was able to qualify for one of the
standard products. If, at the time of the related loan application, the
Mortgagor may have qualified for a lower cost credit product then offered by any
mortgage lending affiliate of the Seller, the Seller referred the Mortgagor's
application to such affiliate for underwriting consideration;
(lll) Underwriting Methodology. The methodology used in underwriting
the extension of credit for each Mortgage Loan did not rely solely on the extent
of the Mortgagor's equity in the collateral as the principal determining factor
in approving such extension of credit. The methodology employed objective
criteria such as the Mortgagor's income, assets and liabilities, to the proposed
mortgage payment and, based on such methodology, the Mortgage Loan's originator
made a reasonable determination that at the time of origination the Mortgagor
had the ability to make timely payments on the Mortgage Loan;
(mmm) Finance Charges. All points, fees and charges, including finance
charges (whether or not financed, assessed, collected or to be collected), in
connection with the origination and servicing of any Mortgage Loan were
disclosed in writing to the related Mortgagor in accordance with applicable
state and federal law and regulation and no related Mortgagor was charged
"points and fees" (whether or not financed) in an amount that exceeds the
greater of (1) 5% of the principal amount of such loan or (2) $1,000. For the
purposes of this representation, "points and fees" (a) include origination,
underwriting, broker and finder's fees and charges that the lender imposed as a
condition of making the Mortgage Loan, whether they are paid to the lender or a
third party; and (b) exclude bona fide discount points, fees paid for actual
services rendered in connection with the origination of the Mortgage Loan (such
as attorneys' fees, notaries fees and fees paid for property appraisals, credit
reports, surveys, title examinations and extracts, flood and tax certifications,
and home inspections) and the cost of mortgage insurance or credit-risk price
adjustments; the costs of title, hazard, and flood insurance policies; state and
local transfer taxes or fees; escrow deposits for the future payment
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of taxes and insurance premiums; and other miscellaneous fees and charges which
miscellaneous fees and charges, in total, do not exceed 0.25 percent of the loan
amount);
(nnn) No Arbitration. With respect to each Mortgage Loan, neither the
related Mortgage nor the related Mortgage Note requires the Mortgagor to submit
to arbitration to resolve any dispute arising out of or relating in any way to
the Mortgage Loan transaction;
(ooo) Full-File Credit Reporting Data. The Company will transmit
full-file credit reporting data for each Mortgage Loan pursuant to ▇▇▇▇▇▇ Mae
Guide Announcement 95-19 and for each Mortgage Loan, Company agrees it shall
report one of the following statuses each month as follows: new origination,
current, delinquent (30-, 60-, 90-days, etc.), foreclosed, or charged-off;
(ppp) Illinois Interest Act. No Mortgage Loan secured by a Mortgage
Property located in the State of Illinois is in violation of the provisions of
the Illinois Interest Act, including Section 4.1a which provides that no such
Mortgage Loan with a Mortgage Interest Rate in excess of 8.0% per annum has
lender-imposed fees (or other charges) in excess of 3.0% of the original
principal balance of the Mortgage Loan; and
(qqq) Georgia. No Mortgage Loan originated or modified on or after
October 1, 2002 and prior to March 7, 2003 is secured by a Mortgaged Property
located in the State of Georgia. There is no mortgage loan in the trust that was
originated on or after March 7, 2003, which is a "high cost home loan" as
defined under the Georgia Fair Lending Act.
Subsection 7.03 Remedies for Breach of Representations and Warranties.
It is understood and agreed that the representations and warranties
set forth in Subsections 7.01 and 7.02 shall survive the sale of the Mortgage
Loans to the Purchaser and shall inure to the benefit of the Purchaser,
notwithstanding any restrictive or qualified endorsement on any Mortgage Note or
Assignment of Mortgage or the examination or lack of examination of any Mortgage
File. Upon discovery by either the Seller 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 the 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 60 days of the earlier of either discovery by or notice to the
Seller of any breach of a representation or warranty which materially and
adversely affects the value of a Mortgage Loan or the Mortgage Loans, the Seller
shall use its best efforts promptly to cure such breach in all material respects
and, if such breach cannot be cured, the Seller shall, at the Purchaser's
option, repurchase such Mortgage Loan at the Repurchase Price. Notwithstanding
anything to the contrary contained herein, it is understood by the parties
hereto that a breach of the representations and warranties made in Subsections
7.02(ss), (eee), (fff), (hhh), (kkk), (lll), (mmm), (nnn), (ooo) or (qqq) will
be deemed to materially and adversely affect the value of the related Mortgage
Loan or the interest of the Purchaser therein. In the event that a breach shall
involve any representation or warranty set forth in Subsection 7.01 and such
breach cannot be
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cured within 60 days of the earlier of either discovery by or notice to the
Seller of such breach, all of the Mortgage Loans shall, at the Purchaser's
option, be repurchased by the Seller at the Repurchase Price. The Seller shall,
at the request of the Purchaser and assuming that Seller has a Qualified
Substitute Mortgage Loan, rather than repurchase the Mortgage Loan as provided
above, remove such Mortgage Loan and substitute in its place a Qualified
Substitute Mortgage Loan or Loans; provided that such substitution shall be
effected not later than 120 days after the related Closing Date. If the Seller
has no Qualified Substitute Mortgage Loan, it shall repurchase the deficient
Mortgage Loan. Any repurchase of a Mortgage Loan(s) pursuant to the foregoing
provisions of this Subsection 7.03 shall occur on a date designated by the
Purchaser and shall be accomplished by deposit in the Custodial Account of the
amount of the Repurchase Price for distribution to the Purchaser on the next
scheduled Remittance Date.
With respect to those representations and warranties set forth in
Section 7.02 which are made to the best of the Seller's knowledge, if it is
discovered by the Seller or the Purchaser that the substance of such
representation and warranty is inaccurate, notwithstanding the Seller's lack of
knowledge with respect to the substance of such representation and warranty,
such inaccuracy shall be deemed a breach of the applicable representation and
warranty.
At the time of repurchase of any deficient Mortgage Loan, the
Purchaser and the Seller shall arrange for the reassignment of the repurchased
Mortgage Loan to the Seller and the delivery to the Seller of any documents held
by the Custodian relating to the repurchased Mortgage Loan. In the event the
Repurchase Price is deposited in the Custodial Account, the Seller shall,
simultaneously with such deposit, give written notice to the Purchaser that such
deposit has taken place. Upon such repurchase the related Final Mortgage Loan
Schedule shall be amended to reflect the withdrawal of the repurchased Mortgage
Loan from this Agreement.
As to any Deleted Mortgage Loan for which the Seller substitutes a
Qualified Substitute Mortgage Loan or Loans, the Seller shall effect such
substitution by delivering to the Purchaser for such Qualified Substitute
Mortgage Loan or Loans the Mortgage Loan Documents with the Mortgage Note
endorsed as required herein. The 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.
Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the
month of substitution will be retained by the Seller. For the month of
substitution, distributions to the Purchaser will include the Monthly Payment
due on such Deleted Mortgage Loan in the month of substitution, and the Seller
shall thereafter be entitled to retain all amounts subsequently received by the
Seller in respect of such Deleted Mortgage Loan. The Seller shall give written
notice to the Purchaser that such substitution has taken place and shall amend
the Final 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 the 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 Subsections 7.01 and
7.02.
For any month in which the Seller substitutes one or more Qualified
Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Seller
will determine the amount
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(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).
An amount equal to the product of the amount of such shortfall multiplied by the
Repurchase Price shall be distributed by the Seller in the month of substitution
pursuant to the Servicing Addendum. Accordingly, on the date of such
substitution, the Seller will deposit from its own funds into the Custodial
Account an amount equal to such amount.
In addition to such cure, repurchase and substitution obligation, the
Seller 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 Seller's representations and warranties contained in this Section
7. It is understood and agreed that the obligations of the Seller set forth in
this Subsection 7.03 to cure or repurchase a defective Mortgage Loan and to
indemnify the Purchaser as provided in this Subsection 7.03 constitute the sole
remedies of the Purchaser respecting a breach of the foregoing representations
and warranties.
Any cause of action against the Seller relating to or arising out of
the breach of any representations and warranties made in Subsections 7.01 or
7.02 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by
the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by
the Seller to cure such breach or repurchase such Mortgage Loan as specified
above, and (iii) demand upon the Seller by the Purchaser for compliance with the
relevant provisions of this Agreement.
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Subsection 7.04 Repurchase of Certain Mortgage Loans. In the event
that (i) the first Due Date for a Mortgage Loan is subsequent to the Cut-off
Date and the initial Monthly Payment is not made within 30 days of such Due
Date, (ii) a Monthly Payment due prior to the related Cut-off Date is not made
within 30 days of the related Due Date or (iii) the principal balance due on a
Mortgage Loan is paid in full within three months following the related Closing
Date, then, in each such case, the Seller shall repurchase the affected Mortgage
Loans at the Repurchase Price, which shall be paid as provided for in Subsection
7.03. Notwithstanding the foregoing, the Seller's obligation to repurchase such
Mortgage Loan shall be conditioned upon the Purchaser providing written notice
to the Seller within 180 days of Purchaser's receipt of notice of such default
or prepayment
Subsection 7.05 [Reserved]
Subsection 7.06 Review of Mortgage Loans. From the Closing Date until
60 days after the Closing Date, the Purchaser shall have the right to review
each Mortgage File, to conduct property inspections, obtain appraisal
recertifications and otherwise to underwrite the Mortgage Loans and to reject
any Mortgage Loan which in the Purchaser's sole opinion is an unacceptable
investment. In the event that the Purchaser so rejects any Mortgage Loan, the
Seller shall, no later than the 60th day following the Closing Date, repurchase
the rejected Mortgage Loan in the manner prescribed in Section 7.04 at the
Repurchase Price. Any rejected Mortgage Loan shall be removed from the terms of
this Agreement.
SECTION 8. Closing.
The closing for each Mortgage 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 for the Mortgage Loans to be purchased on each Closing
Date shall be subject to each of the following conditions:
(a) all of the representations and warranties of the Seller
under this Agreement shall be true and correct as of the
related Closing Date and no event shall have occurred which,
with notice or the passage of time, would constitute a
default under this Agreement, the related Purchase Price and
Terms Letter or the related Warranty ▇▇▇▇ of Sale;
(b) the Initial Purchaser shall have received, or the Initial
Purchaser's attorneys shall have received in escrow, all
Closing Documents as specified in Section 9, in such forms
as are agreed upon and acceptable to the Purchaser, duly
executed by all signatories other than the Purchaser as
required pursuant to the terms hereof;
(c) the Seller shall have delivered and released the Mortgage
Loan Documents to the Custodian; and
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(d) all other terms and conditions of this Agreement shall have
been complied with.
Subject to the foregoing conditions, the Initial Purchaser shall pay
to the Seller on the related Closing Date the Purchase Price, plus accrued
interest pursuant to Section 4, by wire transfer of immediately available funds
to the account designated by the Seller.
SECTION 9. Closing Documents.
(a) On or before the Initial Closing Date, the Seller shall submit to
the Initial Purchaser fully executed originals of the following documents:
1. this Agreement, in four counterparts;
2. a Custodial Account Certification in the form attached as
Exhibit 6 hereto;
3. as Escrow Account Certification in the form attached as
Exhibit 7 hereto;
4. an Officer's Certificate, in the form of Exhibit 1 hereto,
including all attachments thereto;
5. an Opinion of Counsel to the Seller, in the form of Exhibit
2 hereto; and
6. the Seller's underwriting guidelines.
(b) The Closing Documents for the Mortgage Loans to be purchased on
each Closing Date shall consist of fully executed originals of the following
documents:
1. the related Purchase Price and Terms Letter;
2. the related Final Mortgage Loan Schedule;
3. an Officer's Certificate, in the form of Exhibit 1 hereto,
including all attachments thereto;
4. if requested by the Initial Purchaser, an Opinion of Counsel
to the Seller, in the form of Exhibit 2 hereto;
5. a Security Release Certification, in the form of Exhibit 3
hereto executed by any Person, as requested by the Initial
Purchaser, if any of the Mortgage Loans has at any time been
subject to any security interest, pledge or hypothecation
for the benefit of such Person;
6. a certificate or other evidence of merger or change of name,
signed or stamped by the applicable regulatory authority, if
any of the
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Mortgage Loans were acquired by the Seller by merger or
acquired or originated by the Seller while conducting
business under a name other than its present name, if
applicable;
7. a Warranty ▇▇▇▇ of Sale in the form of Exhibit 4 hereto; and
8. a MERS Report reflecting the Custodian as Investor and no
Person as Interim Funder for each MERS Designated Mortgage
Loan.
SECTION 10. Costs.
The Purchaser shall pay any commissions due its salesmen, and the
legal fees and expenses of its attorneys. All other costs and expenses incurred
in connection with the transfer and delivery of the Mortgage Loans, including
without limitation recording fees, fees for title policy endorsements and
continuations, fees for recording Assignments of Mortgage and the Seller's
attorney's fees, shall be paid by the Seller.
SECTION 11. Seller's Servicing Obligations.
The Seller, as independent contract servicer, shall service and
administer the Mortgage Loans during the Preliminary Servicing Period in
accordance with the terms and provisions set forth in the Servicing Addendum
attached as Exhibit 8, which Servicing Addendum is incorporated herein by
reference.
SECTION 12. Removal of Mortgage Loans from Inclusion under This
Agreement Upon a Whole Loan Transfer or a Securitization Transaction on One or
More Reconstitution Dates.
The Seller and the Initial Purchaser agree that with respect to some
or all of the Mortgage Loans, the Initial Purchaser may effect either:
(1) one or more Whole Loan Transfers; and/or
(2) one or more Securitization Transactions.
With respect to each Whole Loan Transfer or Securitization
Transaction, as the case may be, entered into by the Initial Purchaser, the
Seller agrees:
(3) to cooperate fully with the Purchaser and any prospective
purchaser with respect to all reasonable requests and due diligence
procedures and with respect to the preparation (including, but not limited
to, the endorsement, delivery, assignment, and execution) of the Mortgage
Loan Documents and other related documents, and with respect to servicing
requirements reasonably requested by the rating agencies and credit
enhancers;
(4) to execute all Reconstitution Agreements provided that each of the
Seller and the Purchaser is given an opportunity to review and reasonably
negotiate in good faith the content of such documents not specifically
referenced or provided for herein;
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(5) with respect to any Whole Loan Transfer or Securitization
Transaction, the Seller shall make the representations and warranties
regarding the Seller and the Mortgage Loans set forth in Sections 7.01 and
7.02 herein as of the date of the Whole Loan Transfer or Securitization
Transaction, modified to the extent necessary to accurately reflect the
pool statistics of the Mortgage Loans as of the date of such Whole Loan
Transfer or Securitization Transaction and any events or circumstances
existing subsequent to the related Closing Date(s);
(6) to deliver to the Purchaser for inclusion in any prospectus or
other offering material such publicly available information regarding the
Seller, its financial condition and its mortgage loan delinquency,
foreclosure and loss experience and any additional information requested by
the Purchaser, and to deliver to the Purchaser any similar non public,
unaudited financial information, in which case the Purchaser shall bear the
cost of having such information audited by certified public accountants if
the Purchaser desires such an audit, or as is otherwise reasonably
requested by the Purchaser and which the Seller is capable of providing
without unreasonable effort or expense;
(7) to deliver to the Purchaser and to any Person designated by the
Purchaser, at the Purchaser's expense, such statements and audit letters of
reputable, certified public accountants pertaining to information provided
by the Seller pursuant to clause 4 above as shall be reasonably requested
by the Purchaser;
(8) to deliver to the Purchaser, and to any Person designated by the
Purchaser, 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 Purchaser to be necessary in connection with
Whole Loan Transfers or Securitization Transactions, as the case may be,
such in-house Opinions of Counsel for a Securitization Transaction to be in
the form reasonably acceptable to the Purchaser, it being understood that
the cost of any opinions of outside special counsel that may be required
for a Whole Loan Transfer or Securitization Transaction, as the case may
be, shall be the responsibility of the Purchaser;
(9) to negotiate and execute one or more subservicing agreements
between the Seller and any master servicer which is generally considered to
be a prudent master servicer in the secondary mortgage market, designated
by the Purchaser in its sole discretion after consultation with the Seller
and/or one or more custodial and servicing agreements among the Purchaser,
the Seller and a third party custodian/trustee which is generally
considered to be a prudent custodian/trustee in the secondary mortgage
market designated by the Purchaser in its sole discretion after
consultation with the Seller, in either case for the purpose of pooling the
Mortgage Loans with other Mortgage Loans for resale or securitization;
(10) in connection with any securitization of any Mortgage Loans, to
execute a pooling and servicing agreement, which pooling and servicing
agreement may, at the Purchaser's direction, contain contractual provisions
including, but not limited to, a 24-day certificate payment delay (54-day
total payment delay), servicer advances of delinquent scheduled payments of
principal and interest through liquidation (unless
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deemed non-recoverable) and prepayment interest shortfalls (to the extent
of the monthly servicing fee payable thereto), certain REMIC requirements,
servicing and mortgage loan representations and warranties which in form
and substance conform to the representations and warranties in this
Agreement and to secondary market standards for securities backed by
mortgage loans similar to the Mortgage Loans and such provisions with
regard to servicing responsibilities, investor reporting, segregation and
deposit of principal and interest payments, custody of the Mortgage Loans,
and other covenants as are required by the Purchaser and one or more
nationally recognized rating agencies for "AAA" rated mortgage pass-through
transactions which are "mortgage related securities" for the purposes of
the Secondary Mortgage Market Enhancement Act of 1984, unless otherwise
mutually agreed. If the Purchaser deems it advisable at any time to pool
the Mortgage Loans with other mortgage loans for the purpose of resale or
securitization, the Seller agrees to execute one or more subservicing
agreements between itself (as servicer) and a master servicer designated by
the Purchaser at its sole discretion, and/or one or more servicing
agreements among the Seller (as servicer), the Purchaser and a trustee
designated by the Purchaser at its sole discretion, such agreements in each
case incorporating terms and provisions substantially identical to those
described in the immediately preceding paragraph;
(11) to transfer the servicing rights to the Purchaser or its designee
as described in Section 16 upon the direction of the Purchaser;
(12) In the event the Purchaser has elected to have the Seller hold
record title to the Mortgages, prior to a Reconstitution Date the Seller or
its designee shall prepare an Assignment of Mortgage in blank from the
Seller, acceptable to ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ Mac, the trustee or such third
party, as the case may be, for each Mortgage Loan that is part of a
Whole-Loan Transfer or Securitization Transaction and shall pay all
preparation and recording costs associated therewith. The Seller shall
execute each Assignment of Mortgage, track such Assignments of Mortgage to
ensure they have been recorded and deliver them as required by ▇▇▇▇▇▇ Mae,
▇▇▇▇▇▇▇ Mac, the trustee or such third party, as the case may be, upon the
Seller's receipt thereof. Additionally, the Seller shall prepare and
execute, at the direction of the Purchaser, any note endorsements in
connection with any and all Reconstitution Agreements; and
(13) To indemnify the Purchaser and each affiliate designated by the
Purchaser and each Person who controls the Purchaser or such affiliate and
hold each of them harmless from and against any losses, damages, penalties,
fines, forfeitures, reasonable and necessary legal fees and related costs,
judgments, and any other costs, fees and expenses that each of them may
sustain in any way related to any information provided by or on behalf of
the Seller regarding the Seller, the Seller's servicing practices or
performance, the Mortgage Loans or the Seller's underwriting guidelines set
forth in any offering document prepared in connection with any
Securitization Transaction. For purposes of the previous sentence,
"Purchaser" shall mean the Person then acting as the Purchaser under this
Agreement and any and all Persons who previously were "Purchasers" under
this Agreement.
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All Mortgage Loans not sold or transferred pursuant to a Whole Loan
Transfer or Securitization Transaction shall be subject to this Agreement and
shall continue to be serviced for the remainder of the Preliminary Servicing
Period in accordance with the terms of this Agreement and with respect thereto
this Agreement shall remain in full force and effect.
Subsection 12.02 Intent of the Parties; Reasonableness. The Purchaser
and the Seller acknowledge and agree that the purpose of Subsections 12.02
through 12.06 of this Agreement or Sections 11.24, 11.32 or 11.33 of the
Servicing Addendum to this Agreement is to facilitate compliance by the
Purchaser and any Depositor with the provisions of Regulation AB and related
rules and regulations of the Commission. Although Regulation AB is applicable by
its terms only to offerings of asset-backed securities that are registered under
the Securities Act, the Seller acknowledges that investors in privately offered
securities may require that the Purchaser, any Master Servicer or any Depositor
provide comparable disclosure in unregistered offerings. References in this
Agreement to compliance with Regulation AB include provision of comparable
disclosure in private offerings.
Neither the Purchaser nor any Depositor shall exercise its right to request
delivery of information or other performance under these provisions other than
in good faith, or for purposes other than compliance with the Securities Act,
the Exchange Act and, in each case, the rules and regulations of the Commission
thereunder (or the provision in a private offering of disclosure comparable to
that required under the Securities Act) and the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The Seller
acknowledges that interpretations of the requirements of Regulation AB may
change over time, whether due to interpretive guidance provided by the
Commission or its staff, consensus among participants in the asset-backed
securities markets, advice of counsel, or otherwise, and agrees to comply with
reasonable requests made by the Purchaser, any Master Servicer or any Depositor
in good faith for delivery of information under these provisions on the basis of
established and evolving interpretations of Regulation AB. In connection with
any Securitization Transaction, the Seller shall cooperate fully with the
Purchaser and any Master Servicer to deliver to the Purchaser (including any of
its assignees or designees), any Master Servicer and any Depositor, any and all
statements, reports, certifications, records and any other information necessary
in the good faith determination of the Purchaser, the Master Servicer or any
Depositor reasonably available to the Seller to permit the Purchaser, such
Master Servicer or such Depositor to comply with the provisions of Regulation
AB, together with such disclosures relating to the Seller, any Subservicer, any
Third-Party Originator and the Mortgage Loans, or the servicing of the Mortgage
Loans, reasonably believed by the Purchaser or any Depositor to be necessary in
order to effect such compliance.
Subsection 12.03 Additional Representations and Warranties of the
Seller.
(a) The Seller hereby represents to the Purchaser, to any Master
Servicer and to any Depositor, as of the date on which information is first
provided to the Purchaser, any Master Servicer or any Depositor under Subsection
12.04 that, except as disclosed in writing to the Purchaser, such Master
Servicer or such Depositor prior to such date: (i) the Seller is not aware and
has not received notice that any default, early amortization or other
performance triggering event has occurred as to any other securitization due to
any act or failure to act of the Seller; (ii) the Seller has not been terminated
as servicer in a residential mortgage loan securitization, either due to a
servicing default or to application of a servicing performance
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test or trigger; (iii) no material noncompliance with the applicable servicing
criteria with respect to other securitizations of residential mortgage loans
involving the Seller as servicer has been disclosed or reported by the Seller;
(iv) no material changes to the Seller's policies or procedures with respect to
the servicing function it will perform under this Agreement and any
Reconstitution Agreement for mortgage loans of a type similar to the Mortgage
Loans have occurred during the three-year period immediately preceding the
related Securitization Transaction; (v) there are no aspects of the Seller's
financial condition that could have a material adverse effect on the performance
by the Seller of its servicing obligations under this Agreement or any
Reconstitution Agreement; (vi) there are no material legal or governmental
proceedings pending (or known to be contemplated) against the Seller, any
Subservicer or any Third-Party Originator; and (vii) there are no affiliations,
relationships or transactions relating to the Seller, any Subservicer or any
Third-Party Originator with respect to any Securitization Transaction and any
party thereto identified by the related Depositor of a type described in Item
1119 of Regulation AB.
(b) If so requested by the Purchaser, any Master Servicer or any
Depositor on any date following the date on which information is first provided
to the Purchaser, any Master Servicer or any Depositor under Subsection 12.04,
the Seller shall, within five Business Days following such request, confirm in
writing the accuracy of the representations and warranties set forth in
paragraph (a) of this Section or, if any such representation and warranty is not
accurate as of the date of such request, provide reasonably adequate disclosure
of the pertinent facts, in writing, to the requesting party.
Subsection 12.04 Information to Be Provided by the Seller. In
connection with any Securitization Transaction the Seller shall (i) within five
Business Days following request by the Purchaser or any Depositor, provide to
the Purchaser and such Depositor (or, as applicable, cause each Third-Party
Originator and each Subservicer to provide), in writing and in form and
substance reasonably satisfactory to the Purchaser and such Depositor, the
information and materials specified in paragraphs (a), (b), (c), (f) and (g) of
this Section, and (ii) as promptly as practicable following notice to or
discovery by the Seller, provide to the Purchaser and any Depositor (in writing
and in form and substance reasonably satisfactory to the Purchaser and such
Depositor) the information specified in paragraph (d) of this Section.
(a) If so requested by the Purchaser or any Depositor, the Seller
shall provide such information regarding (i) the Seller, as originator of the
Mortgage Loans (including as an acquirer of Mortgage Loans from a Qualified
Correspondent), or (ii) each Third-Party Originator, and (iii) as applicable,
each Subservicer, as is requested for the purpose of compliance with Items
1103(a)(1), 1105, 1110, 1117 and 1119 of Regulation AB. Such information shall
include, at a minimum:
(i) the originator's form of organization;
(ii) 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
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material, in the good faith judgment of the Purchaser or any Depositor, to
an analysis of the performance of the Mortgage Loans, including the
originators' credit-granting or underwriting criteria for mortgage loans of
similar type(s) as the Mortgage Loans and such other information as the
Purchaser or any Depositor may reasonably request for the purpose of
compliance with Item 1110(b)(2) of Regulation AB;
(iii) a description of any material legal or governmental
proceedings that, in the good faith judgment of the Purchaser or any
Depositor, would be material to holders of securities in a Securitization
Transaction, pending (or known to be contemplated) against the Seller, each
Third-Party Originator and each Subservicer; and
(iv) a description of any affiliation or relationship between the
Seller, each Third-Party Originator, each Subservicer and any of the
following parties to a Securitization Transaction, as such parties are
identified to the Seller by the Purchaser or any Depositor in writing in
advance of such Securitization Transaction:
1. the sponsor;
2. the depositor;
3. the issuing entity;
4. any servicer;
5. any trustee;
6. any originator;
7. any significant obligor;
8. any enhancement or support provider; and
9. any other material transaction party.
(b) If so requested by the Purchaser or any Depositor, the Seller
shall provide (or, as applicable, cause each Third-Party Originator to provide)
Static Pool Information with respect to the mortgage loans (of a similar type as
the Mortgage Loans, as reasonably identified by the Purchaser as provided below)
serviced by the Servicer or any Third Party Originator and originated by (i) the
Seller, if the Seller is an originator of Mortgage Loans (including as an
acquirer of Mortgage Loans from a Qualified Correspondent), and/or (ii) each
Third-Party Originator. Such Static Pool Information shall be prepared by the
Seller (or Third-Party Originator) on the basis of its reasonable, good faith
interpretation of the requirements of Item 1105(a)(1)-(3) of Regulation AB for
the period of time the Servicer (or Third Party Originator) serviced such
mortgage loans; provided, however, that the Servicer shall not be required to
provide Static Pool Information with respect to mortgage loans originated prior
to January1, 2006 pursuant to Item 1105(f) of Regulation AB so long as the
Servicer represents in writing to the Purchaser or any Depositor, as applicable,
that such Static Pool Information is unknown and not available to the Servicer
without unreasonable effort or expense. To the extent that there is reasonably
available to the Seller (or Third-Party Originator) Static Pool Information with
respect to more than one mortgage loan type, the Purchaser or any Depositor
shall be entitled to specify whether some or all of such information shall be
provided pursuant to this paragraph. The content of such Static Pool Information
may be in the form customarily provided
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by the Seller, and need not be customized for the Purchaser or any Depositor.
Such Static Pool Information for each vintage origination year or prior
securitized pool, as applicable, shall be presented in increments no less
frequently than quarterly over the life of the mortgage loans included in the
vintage origination year or prior securitized pool. The most recent periodic
increment must be as of a date no later than 135 days prior to the date of the
prospectus or other offering document in which the Static Pool Information is to
be included or incorporated by reference. The Static Pool Information shall be
provided in an electronic format that provides a permanent record of the
information provided, such as a portable document format (pdf) file, or other
such electronic format reasonably required by the Purchaser or the Depositor, as
applicable.
Promptly following notice or discovery of a material error in Static
Pool Information provided pursuant to the immediately preceding paragraph
(including an omission to include therein information required to be provided
pursuant to such paragraph), the Seller shall provide corrected Static Pool
Information to the Purchaser or any Depositor, as applicable, in the same format
in which Static Pool Information was previously provided to such party by the
Company
If so requested by the Purchaser or any Depositor, the Seller shall
provide (or, as applicable, cause each Third-Party Originator to provide), at
the expense of the requesting party (to the extent of any additional incremental
expense associated with delivery pursuant to this Agreement), such 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 Seller's or Third-Party Originator's originations or purchases,
to calendar months commencing January 1, 2006, as the Purchaser or such
Depositor shall reasonably request. Such 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.
(c) If so requested by the Purchaser or any Depositor, the Seller
shall provide such information regarding the Seller, as servicer of the Mortgage
Loans, and each Subservicer (each of the Seller and each Subservicer, for
purposes of this paragraph, a "Servicer"), as is reasonably requested for the
purpose of compliance with Items 1108, 1117 and 1119 of Regulation AB. Such
information shall include, at a minimum:
(i) the Servicer's form of organization;
(ii) 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
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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;
(iii) 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;
(iv) information regarding the Servicer's financial condition, to
the extent that there is a material risk that an adverse financial event or
circumstance involving the Servicer could have a material adverse effect on
the performance by the Seller of its servicing obligations under this
Agreement or any Reconstitution Agreement;
(v) 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;
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(vi) 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;
(vii) 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;
(viii) 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; and
(ix) a description of any material legal or governmental
proceedings pending (or known to be contemplated) against the Servicer; and
(x) a description of any affiliation or relationship between the
Servicer and any of the following parties to a Securitization Transaction,
as such parties are identified to the Servicer by the Purchaser or any
Depositor in writing in advance of such Securitization Transaction:
1. the sponsor;
2. the depositor;
3. the issuing entity;
4. any servicer;
5. any trustee;
6. any originator;
7. any significant obligor;
8. any enhancement or support provider; and
9. any other material transaction party.
(d) For the purpose of satisfying the reporting obligation under the
Exchange Act with respect to any class of asset-backed securities, the Seller
shall (or shall cause each Subservicer and Third-Party Originator to) (i)
provide prompt notice to the Purchaser, any Master Servicer and any Depositor in
writing of (A) any material litigation or governmental proceedings that would be
material to holders of securities in Securitization Transaction involving the
Seller, any Subservicer or any Third-Party Originator, (B) any affiliations or
relationships that develop following the closing date of a Securitization
Transaction between the Seller, any Subservicer or any Third-Party Originator
and any of the parties specified in clause (D) of paragraph (a) of this Section
(and any other parties identified in writing by the requesting party) with
respect to such Securitization Transaction, (C) any Event of Default under the
terms of this Agreement or any Reconstitution Agreement, (D) any merger,
consolidation or sale of substantially all of the assets of the Seller, and (E)
the Seller's entry into an agreement with a Subservicer to perform or assist in
the performance of any of the Seller's obligations under this
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Agreement or any Reconstitution Agreement and (ii) provide to the Purchaser and
any Depositor a description of such proceedings, affiliations or relationships.
(e) As a condition to the succession to the Seller or any Subservicer
as servicer or subservicer under this Agreement or any Reconstitution Agreement
by any Person (i) into which the Seller or such Subservicer may be merged or
consolidated, or (ii) which may be appointed as a successor to the Seller or any
Subservicer, the Seller shall provide to the Purchaser, any Master Servicer, and
any Depositor, at least 15 calendar days prior to the effective date of such
succession or appointment, (x) written notice to the Purchaser and any Depositor
of such succession or appointment and (y) in writing and in form and substance
reasonably satisfactory to the Purchaser and such Depositor, all information
reasonably requested by the Purchaser or any Depositor in order to comply with
its reporting obligation under Item 6.02 of Form 8-K with respect to any class
of asset-backed securities.
(f) In addition to such information as the Seller, as servicer, is
obligated to provide pursuant to other provisions of this Agreement, not later
than ten days prior to the deadline for the filing of any distribution report on
Form 10-D in respect of any Securitization Transaction that includes any of the
Mortgage Loans serviced by the Seller or any Subservicer, the Seller or such
Subservicer, as applicable, shall, to the extent the Seller or such Subservicer
has knowledge, provide to the party responsible for filing such report
(including, if applicable, the Master Servicer) notice of the occurrence of any
of the following events along with all information, data, and materials related
thereto as may be required to be included in the related distribution report on
Form 10-D (as specified in the provisions of Regulation AB referenced below):
(i) any material modifications, extensions or waivers of pool
asset terms, fees, penalties or payments during the distribution period or
that have cumulatively become material over time (Item 1121(a)(11) of
Regulation AB);
(ii) material breaches of pool asset representations or
warranties or transaction covenants (Item 1121(a)(12) of Regulation AB);
and
(iii) information regarding new asset-backed securities issuances
backed by the same pool assets, any pool asset changes (such as, additions,
substitutions or repurchases), and any material changes in origination,
underwriting or other criteria for acquisition or selection of pool assets
(Item 1121(a)(14) of Regulation AB).
(g) The Seller shall provide to the Purchaser, any Master Servicer and
any Depositor, evidence of the authorization of the person signing any
certification or statement, copies or other evidence of Fidelity Bond Insurance
and Errors and Omission Insurance policy, financial information and reports, and
such other information related to the Seller or any Subservicer or the Seller or
such Subservicer's performance hereunder.
Subsection 12.05 Indemnification; Remedies.
(a) The Seller shall indemnify the Purchaser, each affiliate of the
Purchaser, and each of the following parties participating in a Securitization
Transaction: each sponsor and issuing entity; each Person (including, but not
limited to, any Master Servicer if
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applicable) responsible for the preparation, execution or filing of any report
required to be filed with the Commission with respect to such Securitization
Transaction, or for execution of a certification pursuant to Rule 13a-14(d) or
Rule 15d-14(d) under the Exchange Act with respect to such Securitization
Transaction; each broker dealer acting as underwriter, placement agent or
initial purchaser, each Person who controls any of such parties or the Depositor
(within the meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act); and the respective present and former directors, officers,
employees, agents and affiliates of each of the foregoing and of the Depositor
(each, an "Indemnified Party"), and shall hold each of them harmless from and
against any claims, losses, damages, penalties, fines, forfeitures, legal fees
and expenses and related costs, judgments, and any other costs, fees and
expenses that any of them may sustain arising out of or based upon:
(i) (A)any untrue statement of a material fact contained or
alleged to be contained in any information, report, certification, data,
accountants' letter or other material under any of Subsections 12.02
through 12.06 of this Agreement or Sections 11.24, 11.32 or 11.33 of the
Servicing Addendum to this Agreement by or on behalf of the Seller, or
provided under any of Subsections 12.02 through 12.06 of this Agreement or
Sections 11.24, 11.32 or 11.33 of the Servicing Addendum to this Agreement
by or on behalf of any Subservicer, Subcontractor or Third-Party Originator
(collectively, the "Seller Information"), or (B) the omission or alleged
omission to state in the Seller Information a material fact required to be
stated in the Seller Information or necessary in order to make the
statements therein, in 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 Seller
Information and not to any other information communicated in connection
with a sale or purchase of securities, without regard to whether the Seller
Information or any portion thereof is presented together with or separately
from such other information;
(ii) any breach by the Seller of its obligations under
Subsections 12.02 through 12.06 of this Agreement or Sections 11.24, 11.32
or 11.33 of the Servicing Addendum to this Agreement, including
particularly any failure by the Seller, any Subservicer, any Subcontractor
or any Third-Party Originator to deliver any information, report,
certification, accountants' letter or other material when and as required
under Subsections 12.02 through 12.06 of this Agreement or Sections 11.24,
11.32 or 11.33 of the Servicing Addendum to this Agreement, including any
failure by the Seller to identify pursuant to Section 11.33(b) of the
Servicing Addendum of this Agreement any Subcontractor "participating in
the servicing function" within the meaning of Item 1122 of Regulation AB;
(iii) any breach by the Seller of a representation or warranty
set forth in Subsection 12.03(a) or in a writing furnished pursuant to
Subsection 12.03(b) and made as of a date prior to the closing date of the
related Securitization Transaction, to the extent that such breach is not
cured by such closing date, or any breach by the Seller of a representation
or warranty in a writing furnished pursuant to Subsection 12.03(b) to the
extent made as of a date subsequent to such closing date; or
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(iv) the negligence, bad faith or willful misconduct of the
Seller in connection with its performance under Subsections 12.02 through
12.06 of this Agreement or Sections 11.24, 11.32 or 11.33 of the Servicing
Addendum to this Agreement.
If the indemnification provided for herein is unavailable or
insufficient to hold harmless an Indemnified Party, then the Seller agrees that
it shall contribute to the amount paid or payable by such Indemnified Party as a
result of any claims, losses, damages or liabilities incurred by such
Indemnified Party in such proportion as is appropriate to reflect the relative
fault of such Indemnified Party on the one hand and the Seller on the other.
In the case of any failure of performance described in clause (a)(ii)
of this Section, the Seller shall promptly reimburse the Purchaser, any
Depositor, as applicable, and each Person responsible for the preparation,
execution or filing of any report required to be filed with the Commission with
respect to such Securitization Transaction, or for execution of a certification
pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect
to such Securitization Transaction, for all costs reasonably incurred by each
such party in order to obtain the information, report, certification,
accountants' letter or other material not delivered as required by the Seller,
any Subservicer, any Subcontractor or any Third-Party Originator.
This indemnification shall survive the termination of this Agreement
or the termination of any party to this Agreement.
(v) Any failure by the Seller, any Subservicer, any Subcontractor
or any Third-Party Originator to deliver any information, report,
certification, accountants' letter or other material when and as required
under any of Subsections 12.02 through 12.06 of this Agreement or Sections
11.24, 11.32 or 11.33 of the Servicing Addendum to this Agreement, or any
breach by the Seller of a representation or warranty set forth in
Subsection 12.03(a) or in a writing furnished pursuant to Subsection
12.03(b) and made as of a date prior to the closing date of the related
Securitization Transaction, to the extent that such breach is not cured by
such closing date, or any breach by the Seller of a representation or
warranty in a writing furnished pursuant to Subsection 12.03(b) to the
extent made as of a date subsequent to such closing date, shall, except as
provided in clause (ii) of this paragraph, immediately and automatically,
without notice or grace period, constitute an Event of Default with respect
to the Seller under this Agreement and any applicable Reconstitution
Agreement, and shall entitle the Purchaser or any Depositor, as applicable,
in its sole discretion to terminate the rights and obligations of the
Seller as servicer under this Agreement and/or any applicable
Reconstitution Agreement without payment (notwithstanding anything in this
Agreement or any applicable Reconstitution Agreement to the contrary) of
any compensation to the Seller (and if the Seller is servicing any of the
Mortgage Loans in a Securitization Transaction, appoint a successor
servicer reasonably acceptable to any Master Servicer for such
Securitization Transaction); provided that to the extent that any provision
of this Agreement and/or any applicable Reconstitution Agreement expressly
provides for the survival of certain rights or obligations following
termination of the Seller as servicer, such provision shall be given
effect.
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(vi) Any failure by the Seller, any Subservicer or any
Subcontractor to deliver any information, report, certification or
accountants' letter when and as required under Section 11.24 or 11.32 of
the Servicing Addendum to this Agreement, including any failure by the
Seller to identify pursuant to Section 11.33(b) of the Servicing Addendum
to this Agreement any Subcontractor "participating in the servicing
function" within the meaning of Item 1122 of Regulation AB, which continues
unremedied for ten calendar days after the date on which such information,
report, certification or accountants' letter was required to be delivered
shall constitute an Event of Default with respect to the Seller under this
Agreement and any applicable Reconstitution Agreement, and shall entitle
the Purchaser, any Master Servicer or any Depositor, as applicable, in its
sole discretion to terminate the rights and obligations of the Seller as
servicer under this Agreement and/or any applicable Reconstitution
Agreement without payment (notwithstanding anything in this Agreement to
the contrary) of any compensation to the Seller; provided that to the
extent that any provision of this Agreement and/or any applicable
Reconstitution Agreement expressly provides for the survival of certain
rights or obligations following termination of the Seller as servicer, such
provision shall be given effect.
(vii) The Seller shall promptly reimburse the Purchaser (or any
designee of the Purchaser, such as a master servicer) and any Depositor, as
applicable, for all reasonable expenses incurred by the Purchaser (or such
designee) or such Depositor, as such are incurred, in connection with the
termination of the Seller as servicer and the transfer of servicing of the
Mortgage Loans to a successor servicer. The provisions of this paragraph
shall not limit whatever rights the Purchaser or any Depositor may have
under other provisions of this Agreement and/or any applicable
Reconstitution Agreement or otherwise, whether in equity or at law, such as
an action for damages, specific performance or injunctive relief.
(b) The Purchaser and each Person who controls the Purchaser shall
indemnify the Seller, each affiliate of the Seller, each Person who controls any
of such parties or the Seller (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 Seller, 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) 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
(ii) the omission or alleged omission to state in the
Securitization Materials a material fact required to be stated in the
Securitization Materials or necessary in order to make the statements
therein, in the light of the circumstances under which
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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 Seller Information.
Subsection 12.06 Third Party Beneficiary. For purposes of Subsections
12.02 through 12.06 of this Agreement or Sections 11.24, 11.32 or 11.33 of the
Servicing Addendum to this Agreement and any related provisions thereto, each
Master Servicer shall be considered a third-party beneficiary of this Agreement,
entitled to all the rights and benefits hereof as if it were a direct party to
this Agreement.
SECTION 13. [Reserved]
SECTION 14. The Seller.
Subsection 14.01 Additional Indemnification by the Seller.
(a) In addition to the indemnification provided in Subsection 7.03,
the Seller shall indemnify the Purchaser and hold the Purchaser harmless against
any and all claims, losses, damages, penalties, fines, forfeitures, reasonable
and necessary legal fees and related costs, judgments, and any other costs, fees
and expenses that the Purchaser may sustain in any way related to the failure of
the Seller to perform its obligations under this Agreement, including but not
limited to its obligation to service and administer the Mortgage Loans in strict
compliance with the terms of this Agreement or any reconstitution Agreement
entered into purchase to Section 12, unless such failure is due to the
Purchaser's willful misconduct or gross negligence.
(b) The Seller 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 Seller or any of its officers, directors, agents or affiliates of its
obligations under Exhibit 10 hereto or the negligence, bad faith or willful
misconduct of the Seller in connection therewith. If the indemnification
provided for herein is unavailable or insufficient to hold harmless the Master
Servicer, then the Seller 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 Seller
on the other in connection with a breach of the Servicer's obligations under
Exhibit 10 hereto or the Seller's negligence, bad faith or willful misconduct in
connection therewith.
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Subsection 14.02 Merger or Consolidation of the Seller. The Seller
shall keep in full force and effect its existence, rights and franchises as a
corporation under the laws of the state of its incorporation except as permitted
herein, and shall 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 enable the Seller to perform its duties under this
Agreement.
Any Person into which the Seller may be merged or consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Seller shall be a party, or any Person succeeding to the business of the Seller,
shall be the successor of the Seller hereunder, without the execution or filing
of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding; provided, however, that the
successor or surviving Person shall be an institution having a net worth of not
less than $25,000,000 whose deposits are insured by the FDIC or a Seller or
entity whose business is the origination and servicing of mortgage loans, shall
be a ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac approved seller/servicer and shall satisfy any
requirements of Section 17 with respect to the qualifications of a successor to
the Seller.
Subsection 14.03 Limitation on Liability of the Seller and Others.
Neither the Seller nor any of the officers, employees or agents of the Seller
shall be under any liability to the Purchaser for any action taken or for
refraining from the taking of any action in good faith in connection with the
servicing of the Mortgage Loans pursuant to this Agreement, or for errors in
judgment; provided, however, that this provision shall not protect the Seller or
any such person against any breach of warranties or representations made herein,
or failure to perform its obligations in strict compliance with any standard of
care set forth in this Agreement, or any liability which would otherwise be
imposed by reason of any breach of the terms and conditions of this Agreement.
The Seller and any officer, employee or agent of the Seller may rely in good
faith on any document of any kind prima facie properly executed and submitted by
any Person respecting any matters arising hereunder. The Seller shall not be
under any obligation to appear in, prosecute or defend any legal action which is
not incidental to its obligation to sell or duty to service the Mortgage Loans
in accordance with this Agreement and which in its opinion may result in its
incurring any expenses or liability; provided, however, that the Seller may,
with the consent of the Purchaser, undertake any such action which it may deem
necessary or desirable in respect to this Agreement and the rights and duties of
the parties hereto. In such event, the legal expenses and costs of such action
and any liability resulting therefrom shall be expenses, costs and liabilities
for which the Purchaser shall be liable, the Seller shall be entitled to
reimbursement therefor from the Purchaser upon written demand except when such
expenses, costs and liabilities are subject to the Seller's indemnification
under Subsections 7.03 or 13.01.
Subsection 14.04 Seller Not to Resign. The Seller shall not assign
this Agreement or resign from the obligations and duties hereby imposed on it
except by mutual consent of the Seller and the Purchaser or upon the
determination that its servicing duties hereunder are no longer permissible
under applicable law and such incapacity cannot be cured by the Seller in which
event the Seller may resign as servicer. Any such determination permitting the
resignation of the Seller as servicer shall be evidenced by an Opinion of
Counsel to such effect delivered to the Purchaser which Opinion of Counsel shall
be in form and substance
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acceptable to the Purchaser and which shall be provided at the cost of the
Seller. No such resignation shall become effective until a successor shall have
assumed the Seller's responsibilities and obligations hereunder in the manner
provided in Section 16.17.
Without in any way limiting the generality of this Section 14.04, 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 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, without
any payment of any penalty or damages and without any liability whatsoever to
the Seller or any third party.
Subsection 14.05 No Transfer of Servicing. 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 duties 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.
SECTION 15. Default.
Subsection 15.01 Events of Default. In case one or more of the
following Events of Default by the Seller shall occur and be continuing, that is
to say:
(i) any failure by the Seller to remit to the Purchaser any
payment required to be made under the terms of this Agreement which
continues unremedied for a period of one Business Day after the date upon
which written notice of such failure, requiring the same to be remedied,
shall have been given to the Seller by the Purchaser; or
(ii) failure on the part of the Seller duly to observe or perform
in any material respect any other of the covenants or agreements on the
part of the Seller set forth in this Agreement which continues unremedied
for a period of thirty days (except that such number of days shall be
fifteen in the case of a failure to pay any premium for any insurance
policy required to be maintained under this Agreement) after the date on
which written notice of such failure, requiring the same to be remedied,
shall have been given to the Seller by the Purchaser; or
(iii) a decree or order of a court or agency or supervisory
authority having jurisdiction for the appointment of a conservator or
receiver or liquidator in any insolvency, bankruptcy, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Seller and such decree or order shall have remained in force
undischarged or unstayed for a period of sixty days; or
(iv) the Seller shall consent to the appointment of a conservator
or receiver or liquidator in any insolvency, bankruptcy, readjustment of
debt, marshalling of
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assets and liabilities or similar proceedings of or relating to the Seller
or of or relating to all or substantially all of its property; or
(v) the Seller shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage of
any applicable insolvency, bankruptcy or reorganization statute, make an
assignment for the benefit of its creditors, or voluntarily suspend payment
of its obligations or cease its normal business operations for more than
three Business Days; or
(vi) failure by the Seller to be in compliance with the "doing
business" or licensing laws of any jurisdiction where a Mortgaged Property
is located, but only to the extent such non-qualification materially and
adversely affects the Seller's ability to perform its obligations
hereunder; or
(vii) the Seller ceases to meet the qualifications of either a
▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac seller/servicer; or
(viii) the Seller attempts to assign its right to servicing
compensation hereunder or 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; or
(ix) the Seller fails to maintain a minimum net worth of
$25,000,000; or
(x) the Seller ceases to be (a) licensed to service first lien
residential mortgage loans in each 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,
and where such qualification is required, but only to the extent such
non-qualification materially and adversely affects the Seller's ability to
perform its obligations hereunder; or
(xi) there shall have been commenced against the Seller any
litigation, action, suit, arbitration, investigation or other legal or
arbitrable proceedings that claims that the Seller has violated any
consumer credit laws or other laws as a result of alleged predatory lending
practices relating to the Seller's origination or servicing operations, and
which claims an aggregate amount in excess of (or may result in liability
in the aggregate in excess of) $1,000,000.00;
then, and in each and every such case, so long as an Event of Default shall not
have been remedied, the Purchaser, by notice in writing to the Seller may, in
addition to whatever rights the Purchaser may have at law or equity to damages,
including injunctive relief and specific performance, terminate all the rights
and obligations of the Seller as servicer under this Agreement. On or after the
receipt by the Seller of such written notice, all authority and power of the
Seller to service the Mortgage Loans under this Agreement shall on the date set
forth in such notice pass to and be vested in the successor appointed pursuant
to Section 17.
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Subsection 15.02 Waiver of Defaults. The Purchaser may waive any
default by the Seller in the performance of its obligations hereunder and its
consequences. Upon any such waiver of a past default, such default shall cease
to exist, and any Event of Default arising therefrom shall be deemed to have
been remedied for every purpose of this Agreement. No such waiver shall extend
to any subsequent or other default or impair any right consequent thereon except
to the extent expressly so waived.
SECTION 16. Termination.
The obligations and responsibilities of the Seller, as servicer, shall
terminate upon the distribution to the Purchaser of the final payment or
liquidation with respect to the last Mortgage Loan (or advances of same by the
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 unless terminated with respect to all or a portion of
the Mortgage Loans on an earlier date at the option of the Purchaser pursuant to
this Section 16 or pursuant to Section 14. Upon written request from the
Purchaser in connection with any such termination, the Seller shall prepare,
execute and deliver, any and all documents and other instruments, place in the
Purchaser's possession all Mortgage Files, and do or accomplish all other acts
or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Mortgage Loans and related documents, or otherwise, at the Seller's sole
expense. The Seller agrees to cooperate with the Purchaser and such successor in
effecting the termination of the Seller's responsibilities and rights hereunder
as servicer, including, without limitation, the transfer to such successor for
administration by it of all cash amounts which shall at the time be credited by
the Seller to the Custodial Account, REO Account or Escrow Account or thereafter
received with respect to the Mortgage Loans.
The Purchaser may terminate, at its sole option, any rights the Seller
may have hereunder, without cause. In the event that the Purchaser terminates
the Seller's rights on or before the date which is one year after the related
Closing Date, the Purchaser shall pay to the Seller the related Termination Fee.
Any such notice of termination shall be in writing and delivered to the Seller
by registered mail as provided in Section 20.
Notwithstanding and in addition to the foregoing, in the event that
(i) a Mortgage Loan becomes delinquent for a period of 90 days or more (a
"Delinquent Mortgage Loan") or (ii) a Mortgage Loan becomes an REO Property, the
Purchaser may at its election terminate this Agreement with respect to such
Delinquent Mortgage Loan or REO Property without payment of a Termination Fee
therefor, upon 15 days' written notice to the Seller.
SECTION 17. Successor to the Seller.
Prior to termination of Seller's responsibilities and duties under
this Agreement pursuant to Section 12, 14, 15 or 16 the Purchaser shall (i)
succeed to and assume all of the Seller's responsibilities, rights, duties and
obligations under this Agreement, or (ii) appoint a successor which shall
succeed to all rights and assume all of the responsibilities, duties and
liabilities of the Seller as servicer under this Agreement. In connection with
such appointment and assumption, the Purchaser may make such arrangements for
the compensation of such
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successor out of payments on Mortgage Loans as it and such successor shall
agree. In the event that the Seller's duties, responsibilities and liabilities
as servicer under this Agreement should be terminated pursuant to the
aforementioned Sections, the Seller shall discharge such duties and
responsibilities during the period from the date it acquires knowledge of such
termination until the effective date thereof with the same degree of diligence
and prudence which it is obligated to exercise under this Agreement, and shall
take no action whatsoever that might impair or prejudice the rights or financial
condition of the Purchaser or such successor. The termination of the Seller as
servicer pursuant to the aforementioned Sections shall not become effective
until a successor shall be appointed pursuant to this Section 17 and shall in no
event relieve the Seller of the representations and warranties made pursuant to
Subsections 7.01 and 7.02 and the remedies available to the Purchaser under
Subsection 7.03 or 7.04, it being understood and agreed that the provisions of
such Subsections 7.01, 7.02, 7.03 and 7.04 shall be applicable to the Seller
notwithstanding any such resignation or termination of the Seller, or the
termination of this Agreement.
Any successor appointed as provided herein shall execute, acknowledge
and deliver to the Seller and to the Purchaser an instrument accepting such
appointment, whereupon such successor shall become fully vested with all the
rights, powers, duties, responsibilities, obligations and liabilities of the
Seller, with like effect as if originally named as a party to this Agreement
provided, however, that such successor shall not assume, and Seller shall
indemnify such successor for, any and all liabilities arising out of the
Seller's acts as servicer. Any termination of the Seller as servicer pursuant to
Section 12, 14, 15 or 16 shall not affect any claims that the Purchaser may have
against the Seller arising prior to any such termination or resignation or
remedies with respect to such claims.
The Seller shall timely deliver to the successor the funds in the
Custodial Account, REO Account and the Escrow Account and the Mortgage Files and
related documents and statements held by it hereunder and the Seller shall
account for all funds. The Seller shall execute and deliver such instruments and
do such other things all as may reasonably be required to more fully and
definitely vest and confirm in the successor all such rights, powers, duties,
responsibilities, obligations and liabilities of the Seller as servicer. The
successor shall make arrangements as it may deem appropriate to reimburse the
Seller for amounts the Seller actually expended as servicer pursuant to this
Agreement which the successor is entitled to retain hereunder and which would
otherwise have been recovered by the Seller pursuant to this Agreement but for
the appointment of the successor servicer.
SECTION 18. 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 financial statements of the Seller and the Seller's
parent Seller, if applicable, for the most recently completed three fiscal years
respecting which such statements are available. The Seller also shall make
available any comparable interim statements to the extent any such statements
have been prepared by the Seller (and are available upon request to members or
stockholders of the Seller or the public at large). The Seller, if it has not
already done so, agrees to furnish promptly to the Purchaser copies of the
statements specified above. The Seller also shall make available
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information on its servicing performance with respect to mortgage loans serviced
for others, including delinquency ratios.
The Seller also agrees to allow access to knowledgeable financial,
accounting, origination and servicing officers of the Seller for the purpose of
answering questions asked by any prospective purchaser regarding recent
developments affecting the Seller, its loan origination or servicing practices
or the financial statements of the Seller and to permit any prospective
Purchaser to inspect the Seller's servicing facilities for the purpose of
satisfying such prospective Purchaser that the Seller has the ability to service
the Mortgage Loans as provided in this Agreement.
SECTION 19. Mandatory Delivery: Grant of Security Interest.
The sale and delivery of each Mortgage Loan on or before the related
Closing Date is mandatory from and after the date of the execution of the
related Purchase Price and Terms Letter, it being specifically understood and
agreed that each Mortgage Loan is unique and identifiable on the date hereof and
that an award of money damages would be insufficient to compensate the Initial
Purchaser for the losses and damages incurred by the Initial Purchaser
(including damages to prospective purchasers of the Mortgage Loans) in the event
of the Seller's failure to deliver (i) each of the related Mortgage Loans, (ii)
one or more Qualified Substitute Mortgage Loans delivered pursuant to Section 7,
or (iii) one or more Mortgage Loans otherwise acceptable to the Initial
Purchaser on or before the related Closing Date. The Seller hereby grants to the
Initial Purchaser a lien on and a continuing security interest in each Mortgage
Loan and each document and instrument evidencing each such Mortgage Loan to
secure the performance by the Seller of its obligation hereunder, and the Seller
agrees that it holds such Mortgage Loans in custody for the Initial Purchaser
subject to the Initial Purchaser's (i) right to reject any Mortgage Loan under
the terms of this Agreement and the related Purchase Price and Terms Letter, and
(ii) obligation to pay the related Purchase Price for the Mortgage Loans. All
rights and remedies of the Purchaser under this Agreement are distinct from, and
cumulative with, any other rights or remedies under this Agreement or afforded
by law or equity and all such rights and remedies may be exercised concurrently,
independently or successively.
SECTION 20. 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 as follows:
(i) if to the Purchaser:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc.
4 World Financial ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: MLMI 2006-A1
(ii) if to the Seller:
GreenPoint Mortgage Funding 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 21. Severability Clause.
Any part, provision, representation or warranty of this Agreement
which is prohibited or which is held to be void or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation or warranty of this Agreement which is prohibited or
unenforceable or is held to be void or unenforceable in any jurisdiction shall
be ineffective, as to such jurisdiction, to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction as to any Mortgage Loan
shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties hereto
waive any provision of law which prohibits or renders void or unenforceable any
provision hereof. If the invalidity of any part, provision, representation or
warranty of this Agreement shall deprive any party of the economic benefit
intended to be conferred by this Agreement, the parties shall negotiate, in
good-faith, to develop a structure the economic effect of which is nearly as
possible the same as the economic effect of this Agreement without regard to
such invalidity.
SECTION 22. 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 23. Governing Law.
The Agreement shall be construed in accordance with the laws of the
State of New York without regard to any conflicts of law provisions 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.
SECTION 24. Intention of the Parties.
It is the intention of the parties that the Initial Purchaser is
purchasing, and the Seller is selling, the Mortgage Loans and not a debt
instrument of the Seller or another security. Accordingly, the parties hereto
each intend to treat the transaction for Federal income tax purposes as a sale
by the Seller, and a purchase by the Purchaser, of the Mortgage Loans. The
Initial Purchaser shall have the right to review the Mortgage Loans and the
related Mortgage File 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
Initial Purchaser in the course of such review.
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SECTION 25. Successors and Assigns.
This Agreement shall bind and inure to the benefit of and be
enforceable by the Seller and the Purchaser and the respective successors and
assigns of the Seller and the Purchaser. The Purchaser may assign this Agreement
to any Person to whom any Mortgage Loan is transferred whether pursuant to a
sale or financing and to any Person to whom the servicing or master servicing of
any Mortgage Loan is sold or transferred. Upon any such assignment, the Person
to whom such assignment is made shall succeed to all rights and obligations of
the Purchaser under this Agreement to the extent of the related Mortgage Loan or
Mortgage Loans and this Agreement, to the extent of the related Mortgage Loan or
Loans, shall be deemed to be a separate and distinct Agreement between the
Seller, and such Purchaser, and a separate and distinct Agreement between the
Seller and each other Purchaser to the extent of the other related Mortgage Loan
or Loans. In the event that this Agreement is assigned to any Person to whom the
servicing or master servicing of any Mortgage Loan is sold or transferred, the
rights and benefits under this agreement which inure to the Purchaser shall
inure to the benefit of both the Person to whom such Mortgage Loan is
transferred and the Person to whom the servicing or master servicing of the
Mortgage Loan has been transferred; provided that, the right to require a
Mortgage Loan to be repurchased by the Seller pursuant to Subsection 7.03 or
7.04 shall be retained solely by 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 26. Waivers.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced.
SECTION 27. Exhibits.
The exhibits to this Agreement are hereby incorporated and made a part
hereof and are an integral part of this Agreement.
SECTION 28. Nonsolicitation.
The Seller covenants and agrees that it shall not take any action or
permit or cause any action to be taken by any of its agents or affiliates, or by
any independent contractors on the Seller's behalf, to personally, by telephone
or mail, solicit the refinancing of any Mortgage Loan following the date hereof
or provide information to any other entity to solicit the refinancing of any
Mortgage Loan. It is understood and agreed that all rights and benefits relating
to the solicitation of any Mortgagors and the attendant rights, title and
interest in and to the list of such Mortgagors and data relating to their
Mortgages (including insurance renewal dates) shall be transferred to the
Purchaser pursuant hereto on Closing Date and the Company shall take no action
to undermine these rights and benefits. Notwithstanding the foregoing, it is
understood and agreed that the foregoing shall not preclude the Seller from
engaging in solicitations to the general public by newspaper, radio, television
or other media which are not directed toward the Mortgagors or from refinancing
the Mortgage Loan of any Mortgagor who, without solicitation, contacts the
Seller to request the refinancing of the related Mortgage Loan.
-62-
SECTION 29. General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly provided
or unless the context otherwise requires:
(a) the terms defined in this Agreement have the meanings assigned to
them in this Agreement and include the plural as well as the singular, and the
use of any gender herein shall be deemed to include the other gender;
(b) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles;
(c) references herein to "Articles," "Sections," "Subsections,"
"Paragraphs," and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other subdivisions of
this Agreement;
(d) reference to a Subsection without further reference to a Section
is a reference to such Subsection as contained in the same Section in which the
reference appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(e) the words "herein," "hereof," "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
provision; and
(f) the term "include" or "including" shall mean without limitation by
reason of enumeration.
SECTION 30. 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 31. Further Agreements.
The Seller and the Purchaser each agree to execute and deliver to the
other such reasonable and appropriate additional documents, instruments or
agreements as may be necessary or appropriate to effectuate the purposes of this
Agreement.
-63-
SECTION 32. Survival.
The Seller agrees that the representations, warranties and agreements
made by the Seller herein and in any certificate or other instrument delivered
pursuant hereto shall be deemed to be relied upon by the Purchaser,
notwithstanding any investigation heretofore or hereafter made by the Purchaser
or on the Purchaser's behalf, and that the representations, warranties and
agreements made by the Seller herein or in any such certificate or other
instrument shall survive the delivery and payment for the Mortgage Loans for
each Transaction.
-64-
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.
GREENPOINT MORTGAGE FUNDING INC.
(Seller)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE INVESTORS, INC.
(Initial Purchaser)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EXHIBIT 1
SELLER'S OFFICER'S CERTIFICATE
I, ________________________, hereby certify that I am the duly elected
______________ of GreenPoint Mortgage Funding Inc., a ______________ (the
"Seller"), and further certify, on behalf of the Seller as follows:
(1) Attached hereto as Attachment I are a true and correct copy of the
Certificate of Incorporation and by-laws of the Seller as are in full force
and effect on the date hereof.
(2) No proceedings looking toward liquidation, dissolution or
bankruptcy of the Seller are pending or contemplated and no merger is
pending.
(3) Each person who, as an officer or attorney-in-fact of the Seller,
signed (a) the Master Mortgage Loan Purchase and Servicing Agreement (the
"Purchase Agreement"), dated as of October 1, 2006, by and between the
Seller and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc. (the "Purchaser"); (b)
the Purchase Price and Terms Letter, dated [___], between the Seller and
the Purchaser (the "Purchase Price and Terms Letter"); and (c) 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
Purchase Agreement and the Purchase Price and Terms Letter 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) Attached hereto as Attachment II is a true and correct copy of the
resolutions duly adopted by the board of directors of the Seller on
[________________], 2006 (the "Resolutions") with respect to the
authorization and approval of the sale and servicing of the Mortgage Loans;
said Resolutions have not been amended, modified, annulled or revoked and
are in full force and effect on the date hereof.
(5) Attached hereto as Attachment III is a Certificate of Good
Standing of the Seller dated October [__], 2006. No event has occurred
since October [__], 2006 which has affected the good standing of the Seller
under the laws of the State of ___________.
(6) All of the representations and warranties of the Seller contained
in Subsections 7.01 and 7.02 of the Purchase Agreement were true and
correct in all material respects as of the date of the Purchase Agreement
and are true and correct in all material respects as of the date hereof.
(7) The Seller has performed all of its duties and has satisfied all
the material conditions on its part to be performed or satisfied prior to
the related Closing Date pursuant to the Purchase Agreement and the related
Purchase Price and Terms Letter.
(8) All capitalized terms used herein and not otherwise defined shall
have the meaning assigned to them in the Purchase Agreement.
Ex. 1-1
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the
seal of the Seller.
Dated:
------------------------------
----------------------------------------
[Seal]
GREENPOINT MORTGAGE FUNDING INC.
(Seller)
By:
------------------------------------
Name:
----------------------------------
Title: Vice President
I, _______________________, Secretary of the Seller, hereby certify
that _________________________ is the duly elected, qualified and acting Vice
President of the Seller and that the signature appearing above is genuine.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated:
------------------------------
----------------------------------------
[Seal]
GREENPOINT MORTGAGE FUNDING INC.
(Seller)
By:
------------------------------------
Name:
----------------------------------
Title: [Assistant] Secretary
Ex. 1-2
EXHIBIT 2
FORM OF OPINION OF COUNSEL TO THE SELLER
___________ ___, 200_
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc.
4 World Financial ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Master Mortgage Loan Purchase and Servicing Agreement (the "Purchase
Agreement"), dated [_________], by and between ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors,
Inc. ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and GreenPoint Mortgage Funding, Inc. (the "Company") and
the Purchase Price and Terms Letter, dated [_______], between ▇▇▇▇▇▇▇ ▇▇▇▇▇ and
the Company (the "Price and Terms Letter", together with the Purchase Agreement,
the "Agreements")
Ladies and Gentlemen:
I have acted as counsel to the Company in connection with certain
matters described in the Agreements.
In connection with rendering this opinion letter, I, or attorneys
working under my direction have examined, among other things, originals,
certified copies or copies otherwise identified as being true copies of the
following:
A. Signed copies of the Agreements;
B. The Company's Certificate of Incorporation
C. The Company's By-Laws; and
D. Resolutions adopted by the Board of Directors of the Company.
For the purpose of rendering this opinion, I have made such
documentary, factual and legal examinations as I deemed necessary under the
circumstances. As to factual matters, I have relied upon statements,
certificates and other assurances of public officials and of officers and other
representatives of the Company, and upon such other certificates as I deemed
appropriate, which factual matters have not been independently established or
verified by me. I have also assumed, among other things, the genuineness of all
signatures, the legal capacity of all natural persons, the authenticity of all
documents submitted to me as originals, and the conformity to original documents
of all documents submitted to me as copies and the authenticity of the originals
of such copied documents.
On the basis of and subject to the foregoing examination, and in
reliance thereon, and subject to the assumptions, qualifications, exceptions and
limitations expressed herein, I am of the opinion that:
1. The Company has been duly incorporated and is validly existing and
in good standing under the laws of the State of New York with corporate power
and authority to own its properties and conduct its business as presently
conducted by it. The Company has the
Ex. 2-1
corporate power and authority to execute, deliver, and perform its obligations
under the Agreements.
2. The Agreements have been duly and validly authorized, executed and
delivered by the Company.
3. The Agreements constitute valid, legal and binding obligations of
the Company, enforceable against the Company in accordance with their respective
terms.
4. No consent, approval, authorization or order of any United States
federal or California government authority on the part of the Company is
required for the execution, delivery and performance by the Company of the
Agreements, except for those consents, approvals, authorizations or orders which
previously have been obtained.
5. The execution, delivery and performance of the Agreements will not,
as of the date hereof, result in a violation of the Certificate of Incorporation
or By-Laws of the Company, or, to the best of my knowledge, result in a
violation of, or constitute a default under, (i) the terms of any indenture or
other agreement or instrument known to me to which the Company is a party or by
which it is bound, (ii) any California or United States federal statute or
regulation applicable to the Company, or (iii) any order of any State of
California or United States federal court, regulatory body, administrative
agency or governmental body having jurisdiction over the Company, except in any
such case where the violation or default would not have a material adverse
effect on the Company or its ability to perform its obligations under the
Agreements.
6. There is no action, suit, proceeding or investigation pending or,
to the best of my knowledge, threatened against the Company which, in my
judgment, would draw into question the validity of the Agreements or which would
be likely to impair materially the ability of the Company to perform under the
terms of the Agreements.
The opinions above are subject to the following additional
assumptions, exceptions, qualifications and limitations:
A. I have assumed that all parties to the Agreements other than the
Company have all requisite power and authority to execute, deliver and perform
their respective obligations under the Agreements, and that the Agreements have
been duly authorized by all necessary corporate action on the part of such
parties, have been executed and delivered by such parties and constitute the
legal, valid and binding obligations of such parties.
B. My opinion expressed in paragraph 3 above is subject to the
qualifications that (i) the enforceability of the Agreements may be limited by
the effect of laws relating to (1) bankruptcy, reorganization, insolvency,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally, including, without limitation, the effect of
statutory or other laws regarding fraudulent conveyances or preferential
transfers, and (2) general principles of equity upon the specific enforceability
of any of the remedies, covenants or other provisions of the Agreements and upon
the availability of injunctive relief or other equitable remedies and the
application of principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law) as such principles relate to,
limit or affect the
Ex. 2-2
enforcement of creditors' rights generally and the discretion of the court
before which any proceeding for such enforcement may be brought; and (ii) I
express no opinion herein with respect to the validity, legality, binding effect
or enforceability of provisions for indemnification in the Agreements to the
extent such provisions may be held to be unenforceable as contrary to public
policy.
C. My opinion expressed in paragraph 5 above relating to violations of
United States federal and California statutes, regulations or orders applicable
to the Company is limited to such statutes, regulations or orders that in my
experience are typically applicable to a transaction of the nature contemplated
by the Agreements.
D. I have assumed, without independent check or certification, that
there are no agreements or understandings among the Company and any other party,
which would expand, modify or otherwise affect the terms of the Agreements or
the respective rights or obligations of the parties thereunder.
I am admitted to practice in the State of California, and I render no
opinion herein as to matters involving or governed by the laws of any
jurisdiction other than the State of California and the federal laws of the
United States of America. I also express no opinion as to whether the laws of
any particular jurisdiction apply, and no opinion to the extent that the laws of
any jurisdiction other than those identified above are applicable to the
Agreements.
This opinion letter has been prepared and should be understood in
accordance with the Legal Opinion Principles, 53 Bus. Law. 831 (1998), and
Guidelines for the Preparation of Closing Opinions, 57 Bus. Law. 345 (2001), of
the Committee on Legal Opinions, ABA Section of Business Law.
Very truly yours,
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
General Counsel
GreenPoint Mortgage Funding, Inc.
Ex. 2-3
EXHIBIT 3
SECURITY RELEASE CERTIFICATION
I. Release of Security Interest
___________________________, hereby relinquishes any and all right,
title and interest it may have in and to the Mortgage Loans described in Exhibit
A attached hereto upon purchase thereof by ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors,
Inc. from the Seller named below pursuant to that certain Master Mortgage Loan
Purchase and Servicing Agreement, dated as of October 1, 2006, as of the date
and time of receipt by ______________________________ of $__________ for such
Mortgage Loans (the "Date and Time of Sale"), and certifies that all notes,
mortgages, assignments and other documents in its possession relating to such
Mortgage Loans have been delivered and released to the Seller named below or its
designees as of the Date and Time of Sale.
Name and Address of Financial Institution
(Name)
------------------------------
(Address)
---------------------------
By:
---------------------------------
Ex. 3-1
II. Certification of Release
The Seller named below hereby certifies to ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage
Investors, Inc. that, as of the Date and Time of Sale of the above mentioned
Mortgage Loans to ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc., the security interests
in the Mortgage Loans released by the above named corporation comprise all
security interests relating to or affecting any and all such Mortgage Loans. The
Seller warrants that, as of such time, there are and will be no other security
interests affecting any or all of such Mortgage Loans.
GreenPoint Mortgage Funding Inc.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Ex. 3-2
EXHIBIT 4
WARRANTY ▇▇▇▇ OF SALE
On this _______ day of ________, 20___, GreenPoint Mortgage Funding
Inc. ("Seller") as the Seller under that certain Master Mortgage Loan Purchase
and Servicing Agreement, dated as of October 1, 2006 (the "Agreement") does
hereby sell, transfer, assign, set over and convey to ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage
Investors, Inc. as Purchaser under the Agreement, without recourse, but subject
to the terms of the Agreement, all rights, title and interest of the Seller in
and to the Mortgage Loans listed on the Final Mortgage Loan Schedule attached
hereto, together with the related Mortgage Files and all rights and obligations
arising under the documents contained therein. Pursuant to Section 6.03 of the
Agreement, the Seller has delivered to the Custodian the documents for each
Mortgage Loan to be purchased as set forth in the Agreement. The contents of
each related Servicing File required to be retained by the Seller to service the
Mortgage Loans pursuant to the Agreement and thus not delivered to the Purchaser
are and shall be held in trust by the Seller for the benefit of the Purchaser as
the owner thereof. The Seller's possession of any portion of each such Servicing
File is at the will of the Purchaser for the sole purpose of facilitating
servicing of the related Mortgage Loan pursuant to the Agreement, and such
retention and possession by the Seller shall be in a custodial capacity only.
The ownership of each Mortgage Note, Mortgage, and the contents of the Mortgage
File and Servicing File is vested in the Purchaser and the ownership of all
records and documents with respect to the related Mortgage Loan prepared by or
which come into the possession of the Seller shall immediately vest in the
Purchaser and shall be retained and maintained, in trust, by the Seller at the
will of the Purchaser in such custodial capacity only.
The Seller confirms to the Purchaser that the representation and
warranties set forth in Subsections 7.01 and 7.02 of the Agreement are true and
correct as of the date hereof, and that all statements made in the Seller's
Officer's Certificates and all Attachments thereto remain complete, true and
correct in all respects as of the date hereof, and makes the following
additional representations and warranties to the Purchaser, which additional
representations and warranties are hereby incorporated into Subsection 7.02 of
the Agreement:
(9) When measured by aggregate Stated Principal Balance as of the
Cut-off Date, no more than ____________ percent (__%) of the Mortgage Loans
are Rate/Term Refinancings and no more than _____________ percent (__%) of
the Mortgage Loans are Cash-Out Refinancings.
(10) When measured by aggregate Stated Principal Balance as of the
Cut-off Date, (i) no less than ______________ percent (__%) of the Mortgage
Loans are secured by detached one-family dwellings or detached one-family
dwellings in planned unit developments, (ii) no more than ____________
percent (__%) of the Mortgage Loans are secured by attached one-family
dwellings in a planned unit development, (iii) no more than ______ percent
(__%) of the Mortgage Loans are secured by individual condominium units,
and (iv) no more than _____ percent (__%) of the Mortgage Loans are secured
by detached two-to-four family dwellings;
Ex. 4-1
(11) When measured by aggregate Stated Principal Balance as of the
Cut-off Date, no more than ______ percent (__%) of the Mortgage Loans had
Loan-to-Value Ratio at origination in excess of 80%, and the weighted
average Loan-to-Value Ratio for all Mortgage Loans at origination did not
exceed __%;
(12) With respect to all of the Mortgage Loans, at the time that the
Mortgage Loan was made, the Mortgagor represented that the Mortgagor would
occupy the Mortgaged Property as the Mortgagor's primary residence;
(13) No Mortgage Loan had a principal balance at origination in excess
of $______ and the average principal balance of the Mortgage Loans on the
Cut-off Date was not in excess of $______. When measured by the aggregate
Stated Principal Balance as of the Cut-off Date, no more than __% of the
Mortgage Loans had a principal balance at origination in excess of
$_________;
(14) Each Mortgage Loan has a Mortgage Interest Rate of at least
______%. The Mortgage Loans have a weighted average Mortgage Interest Rate
of ______% as of the Cut-off Date;
(15) All of the Mortgage Loans had an original term to maturity of 30
years;
(16) With respect to the aggregate Closing Date Principal Balance of
the Mortgage Loans: (a) __% of the Mortgaged Properties will be located in
[_______]; (b) __% of the Mortgaged Properties will be located in [______]
and (c) not more than __% of the Mortgaged Properties will be located in
any other single state. When measured by aggregate Closing Date Principal
Balance as of the Cut-off Date, no more than five percent (5%) of the
Mortgage Loans are secured by Mortgaged Properties located in the same
United States postal zip code;
(17) With respect to the aggregate unpaid principal balance of the
Mortgage Loans, the weighted average FICO Score shall be at least _______.
No Mortgage Loan shall have a FICO Score less than ___; and
(18) The Mortgage Loans have a weighted average remaining term of ___
months.
Ex. 4-2
Capitalized terms used herein and not otherwise defined shall have the
meanings set forth in the Agreement.
GREENPOINT MORTGAGE FUNDING INC.
(Seller)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Ex. 4-3
EXHIBIT 5
CONTENTS OF EACH 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 Seller or delivered to the
Custodian:
1. Mortgage Loan Documents.
2. Residential loan application.
3. Mortgage Loan closing statement.
4. Verification of employment and income.
5. Verification of acceptable evidence of source and amount of
downpayment.
6. Credit report on Mortgagor.
7. Residential appraisal report.
8. Photograph of the Mortgaged Property.
9. Survey of the Mortgaged Property.
10. 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.
11. All required disclosure statements and statement of Mortgagor
confirming receipt thereof.
12. If available, termite report, structural engineer's report, water
potability and septic certification.
13. Sales Contract, if applicable.
14. Hazard insurance policy.
15. Tax receipts, insurance premium receipts, ledger sheets, payment
history from date of origination, 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.
16. Amortization schedule, if available.
17. Payment history for Mortgage Loans that have been closed for more
than 90 days.
18. With respect to each Mortgage Loan which is subject to the
provisions of the Homeownership and Equity Protection Act of
1994, a copy of a notice
Ex. 5-1
to each entity which was a purchaser or assignee of the Mortgage
Loan, satisfying the provisions of the Act and regulations issued
thereunder, to the effect that the Mortgage Loan is subject to
special truth in lending rules.
Ex. 5-2
EXHIBIT 6
CUSTODIAL ACCOUNT CERTIFICATION
______________ __, 20___
To: ____________________________
____________________________
____________________________
(the "Depository")
As Seller under the Master Mortgage Loan Purchase and Servicing
Agreement, dated as of October 1, 2006, we hereby authorize and request you to
establish an account, as a Custodial Account, to be designated as "GreenPoint
Mortgage Funding Inc. in trust for the Purchaser and various Mortgagors, Fixed
and Adjustable Rate Mortgage Loans." All deposits in the account shall be
subject to withdrawal therefrom by order signed by the Seller. You may refuse
any deposit which would result in violation of the requirement that the account
be fully insured as described below. This letter is submitted to you in
duplicate. Please execute and return one original to us.
GREENPOINT MORTGAGE FUNDING INC.
(Seller)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Date:
----------------------------------
Ex. 6-1
The undersigned, as Depository, hereby certifies that the above-described
account has been established under Account Number ___________ at the office of
the Depository indicated above, and agrees to honor withdrawals on such account
as provided above. The full amount deposited at any time in the account will be
insured to the full extent required by law by the Federal Deposit Insurance
Corporation through the Bank Insurance Fund ("BIF") or the Savings Association
Insurance Fund ("SAIF").
Depository
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Date:
----------------------------------
Ex. 6-2
EXHIBIT 7
ESCROW ACCOUNT CERTIFICATION
______________ __, 20___
To: ____________________________
____________________________
____________________________
(the "Depository")
As Seller under the Master Mortgage Loan Purchase and Servicing
Agreement, dated as of October 1, 2006, we hereby authorize and request you to
establish an account, as an Escrow Account, to be designated as "GreenPoint
Mortgage Funding Inc. in trust for the Purchaser and various Mortgagors, Fixed
and Adjustable Rate Mortgage Loans." All deposits in the account shall be
subject to withdrawal therefrom by order signed by the Seller. You may refuse
any deposit which would result in violation of the requirement that the account
be fully insured as described below. This letter is submitted to you in
duplicate. Please execute and return one original to us.
GREENPOINT MORTGAGE FUNDING INC.
(Seller)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Date:
----------------------------------
Ex. 7-1
The undersigned, as Depository, hereby certifies that the
above-described account has been established under Account Number ___________ at
the office of the Depository indicated above, and agrees to honor withdrawals on
such account as provided above. The full amount deposited at any time in the
account will be insured by the Federal Deposit Insurance Corporation through the
Bank Insurance Fund ("BIF") or the Savings Association Insurance Fund ("SAIF").
Depository
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Date:
----------------------------------
Ex. 7-2
EXHIBIT 8
SERVICING ADDENDUM
Section 11.01 Seller to Act as Servicer. The Seller, as independent
contract servicer, shall service and administer the Mortgage Loans in accordance
with this Agreement and shall have full power and authority, acting alone, to do
or cause to be done any and all things in connection with such servicing and
administration which the Seller may deem necessary or desirable and consistent
with the terms of this Agreement.
Consistent with the terms of this Agreement, the Seller may waive,
modify or vary any term of any Mortgage Loan or consent to the postponement of
strict compliance with any such term or in any manner grant indulgence to any
Mortgagor if in the Seller's reasonable and prudent determination such waiver,
modification, postponement or indulgence is not materially adverse to the
Purchaser; provided, however, that the Seller shall not, without the prior
written consent of the Purchaser, permit any modification with respect to any
Mortgage Loan that would change the Mortgage Interest Rate, defer or forgive the
payment thereof or of any principal or interest payments, reduce the outstanding
principal amount (except for actual payments of principal), make additional
advances of additional principal or extend the final maturity date on such
Mortgage Loan. Without limiting the generality of the foregoing, the Seller
shall continue, and is hereby authorized and empowered, to execute and deliver
on behalf of itself, and the Purchaser, all instruments of satisfaction or
cancellation, or of partial or full release, discharge and all other comparable
instruments, with respect to the Mortgage Loans and with respect to the
Mortgaged Property. If reasonably required by the Seller, the Purchaser shall
furnish the Seller with any powers of attorney and other documents necessary or
appropriate to enable the Seller to carry out its servicing and administrative
duties under this Agreement.
In servicing and administering the Mortgage Loans, the Seller shall
employ procedures including collection procedures and exercise the same care
that it customarily employs and exercises in servicing and administering
mortgage loans for its own account giving due consideration to accepted mortgage
servicing practices of prudent lending institutions and the Purchaser's reliance
on the Seller. With respect to each Mortgagor, the Seller will monitor
applicable sanction lists pursuant to, and in accordance with, the Anti-Money
Laundering Laws, including to determine whether any Mortgagor becomes listed as
a "blocked person" for purposes of the OFAC Regulations on a monthly basis. In
the event a Mortgagor is listed as a "blocked person", the Seller shall
immediately notify the Purchaser.
Section 11.02 Collection of Mortgage Loan Payments. Continuously from
the date hereof until the principal and interest on all Mortgage Loans are paid
in full, the Seller shall 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 and held for its own account. Further, the Seller shall take
special care in ascertaining and estimating annual ground rents, taxes,
assessments, water rates, fire and hazard insurance premiums, mortgage insurance
premiums, and all other charges that, as provided in the
Ex. 8-1
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 11.02. Realization Upon Defaulted Mortgage Loans. The Seller
shall use its best efforts, consistent with the procedures that the Seller would
use in servicing loans for its own account, to foreclose upon or otherwise
comparably convert the ownership of such Mortgaged Properties as come into and
continue in default and as to which no satisfactory arrangements can be made for
collection of delinquent payments pursuant to Section 11.01. The Seller shall
use its best efforts to realize upon defaulted Mortgage Loans in such a manner
as will maximize the receipt of principal and interest by the Purchaser, taking
into account, among other things, the timing of foreclosure proceedings. The
foregoing is subject to the provisions that, in any case in which Mortgaged
Property shall have suffered damage, the Seller shall not be required to expend
its own funds toward the restoration of such property in excess of $2,000 unless
it shall determine in its discretion (i) that such restoration will increase the
proceeds of liquidation of the related Mortgage Loan to Purchaser after
reimbursement to itself for such expenses, and (ii) that such expenses will be
recoverable by the Seller through Insurance Proceeds or Liquidation Proceeds
from the related Mortgaged Property, as contemplated in Section 11.05. 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 Seller shall take such action as it
shall deem to be in the best interest of the Purchaser. In the event that any
payment due under any Mortgage Loan remains delinquent for a period of ninety
(90) days or more, the Seller shall provide written notice to the Master
Servicer in the event the Seller intends to proceed with foreclosure. In
connection with any foreclosure proceedings, the Seller shall be responsible for
all costs and expenses incurred by it in any such foreclosure proceedings;
provided, however, that it shall be entitled to reimbursement thereof from the
related Mortgaged Property, as contemplated in Section 11.05.
Notwithstanding the foregoing provisions of this Section 11.03, with
respect to any Mortgage Loan as to which the Seller has received actual notice
of, or has actual knowledge of, the presence of any toxic or hazardous substance
on the related Mortgaged Property the Seller shall not either (i) obtain title
to such Mortgaged Property as a result of or in lieu of foreclosure or
otherwise, or (ii) otherwise acquire possession of, or take any other action,
with respect to, such Mortgaged Property if, as a result of any such action, the
Purchaser 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 Seller has
also 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:
(19) such Mortgaged Property is in compliance with applicable
environmental laws or, if not, that it would be in the best economic
interest of the Purchaser to take such actions as are necessary to bring
the Mortgaged Property into compliance therewith; and
(20) there are no circumstances present at such Mortgaged Property
relating to the use, management or disposal of any hazardous substances,
hazardous materials,
Ex. 8-2
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 Purchaser to take such
actions with respect to the affected Mortgaged Property.
The cost of the environmental audit report contemplated by this
Section 11.03 shall be advanced by the Seller, subject to the Seller's right to
be reimbursed therefor from the Custodial Account as provided in Section
11.05(vi).
If the Seller determines, as described above, that it is in the best
economic interest of the Purchaser 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, then the Seller
shall take such action as it deems to be in the best economic interest of the
Purchaser. The cost of any such compliance, containment, cleanup or remediation
shall be advanced by the Seller, subject to the Seller's right to be reimbursed
therefor from the Custodial Account as provided in Section 11.05(vi).
Proceeds received in connection with any Final Recovery Determination,
as well as any recovery resulting from a partial collection of Insurance
Proceeds or Liquidation Proceeds in respect of any Mortgage Loan, will be
applied in the following order of priority: first, to reimburse the Seller for
any related unreimbursed Servicing Advances, pursuant to Section 11.05(iii);
second, to accrued and unpaid interest on the Mortgage Loan, to the date of the
Final Recovery Determination, or to the Due Date prior to the Remittance Date on
which such amounts are to be distributed if not in connection with a Final
Recovery Determination; and third, as a recovery of principal of the Mortgage
Loan. If the amount of the recovery so allocated to interest is less than the
full amount of accrued and unpaid interest due on such Mortgage Loan, the amount
of such recovery will be allocated by the Seller as follows: first, to unpaid
Servicing Fees; and second, to the balance of the interest then due and owing.
Section 11.04 Establishment of Custodial Accounts; Deposits in
Custodial Accounts. The Seller shall segregate and hold all funds collected and
received pursuant to each Mortgage Loan separate and apart from any of its own
funds and general assets and shall establish and maintain one or more Custodial
Accounts, in the form of time deposit or demand accounts. The creation of any
Custodial Account shall be evidenced by a Custodial Account Certification in the
form of Exhibit 6.
The Seller shall deposit in the Custodial Account within 24 hours of
receipt, and retain therein the following payments and collections received 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 on the Mortgage Loans;
Ex. 8-3
(ii) all payments on account of interest on the Mortgage Loans;
(iii) all Liquidation Proceeds;
(iv) all Insurance Proceeds including amounts required to be
deposited pursuant to Sections 11.10 and 11.11, other than proceeds to be
held in the Escrow Account and applied to the restoration or repair of the
Mortgaged Property or released to the Mortgagor in accordance with the
Seller's normal servicing procedures, the loan documents or applicable law;
(v) all Condemnation Proceeds affecting any Mortgaged Property
which are not released to the Mortgagor in accordance with the Seller's
normal servicing procedures, the loan documents or applicable law;
(vi) all Monthly Advances;
(vii) all proceeds of any Mortgage Loan repurchased in accordance
with Subsections 7.03 and 7.04 and all amounts required to be deposited by
the Seller in connection with shortfalls in principal amount of Qualified
Substitute Mortgage Loans pursuant to Subsection 7.03;
(viii) any amounts required to be deposited by the Seller
pursuant to Section 11.11 in connection with the deductible clause in any
blanket hazard insurance policy. Such deposit shall be made from the
Seller's own funds, without reimbursement therefor;
(ix) any amounts required to be deposited by the Seller in
connection with any REO Property pursuant to Section 11.13;
(x) any amounts required to be deposited in the Custodial Account
pursuant to Sections 11.19 or 11.20; and
(xi) with respect to each Principal Prepayment in full, an amount
(to be paid by the Seller out of its own funds without reimbursement
therefor) which, when added to all amounts allocable to interest received
in connection with such Principal Prepayment, equals one month's interest
on the amount of principal so prepaid at the Mortgage Interest Rate,
provided, however, that in no event shall the aggregate of deposits made by
the Seller pursuant to this clause (xi) exceed the aggregate amount of the
Seller's servicing compensation in the calendar month in which such
deposits are required.
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 11.01, need not be deposited
by the Seller in the Custodial Account. Such Custodial Account shall be an
Eligible Account. Any interest or earnings on funds deposited in the Custodial
Account by the depository institution shall accrue to the benefit of the Seller
and the Seller shall be entitled to retain and withdraw such interest from the
Custodial Account pursuant
Ex. 8-4
to Section 11.05(iii). The Seller shall give notice to the Purchaser of the
location of the Custodial Account when established and prior to any change
thereof.
If the balance on deposit in the Custodial Account exceeds $75,000 as
of the commencement of business on any Business Day and the Custodial Account
constitutes an Eligible Account solely pursuant to clause (ii) of the definition
of Eligible Account, the Seller shall, on or before twelve o'clock noon Eastern
time on such Business Day, withdraw from the Custodial Account any and all
amounts payable to the Purchaser and remit such amounts to the Purchaser by wire
transfer of immediately available funds.
Section 11.05 Permitted Withdrawals From the Custodial Account. The
Seller may, from time to time, withdraw from the Custodial Account for the
following purposes:
(xii) to make distributions to the Purchaser in the amounts and
in the manner provided for in Section 11.14;
(xiii) to reimburse itself for Monthly Advances, the Seller's
right to reimburse itself pursuant to this subclause (ii) being limited to
amounts received on the related Mortgage Loan which represent late
collections (net of the related Servicing Fees) respecting which any such
advance was made it being understood that, in the case of such
reimbursement, the Seller's right thereto shall be prior to the rights of
Purchaser, except that, where the Seller is required to repurchase a
Mortgage Loan, pursuant to Subsection 7.03, the Seller's right to such
reimbursement shall be subsequent to the payment to the Purchaser of the
Repurchase Price pursuant to Subsection 7.03, and all other amounts
required to be paid to the Purchaser with respect to such Mortgage Loans;
(xiv) to reimburse itself for unreimbursed Servicing Advances,
the Seller'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 Seller from the Mortgagor or otherwise relating
to the Mortgage Loan, it being understood that, in the case of such
reimbursement, the Seller's right thereto shall be prior to the rights of
the Purchaser, except that, where the Seller is required to repurchase a
Mortgage Loan, pursuant to Subsection 7.03, the Seller's right to such
reimbursement shall be subsequent to the payment to the Purchaser of the
Repurchase Price pursuant to Subsection 7.03 and all other amounts required
to be paid to the Purchaser with respect to such Mortgage Loans;
(xv) to pay to itself pursuant to Section 11.22 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 or recovery as
to interest on a particular Mortgage Loan;
(xvi) to pay to itself with respect to each Mortgage Loan that
has been repurchased pursuant to Subsection 7.03 all amounts received
thereon and not distributed as of the date on which the related Repurchase
Price is determined;
Ex. 8-5
(xvii) to reimburse the Seller for any Monthly Advance previously
made which the Seller has determined to be a Nonrecoverable Monthly
Advance;
(xviii) to pay, or to reimburse the Seller for advances in
respect of, expenses incurred in connection with any Mortgage Loan pursuant
to Section 11.03(b), but only to the extent of amounts received in respect
of the Mortgage Loans to which such expense is attributable;
(xix) to clear and terminate the Custodial Account on the
termination of this Agreement.
The Seller shall keep and maintain separate accounting, on a Mortgage
Loan by Mortgage Loan basis, for the purpose of justifying any withdrawal from
the Custodial Account pursuant to such subclauses (ii) - (vii) above. The Seller
shall provide written notification in the form of an Officers' Certificate to
the Purchaser, on or prior to the next succeeding Remittance Date, upon making
any withdrawals from the Custodial Account pursuant to subclause (vi) above.
Section 11.06 Establishment of Escrow Accounts; Deposits in Escrow
Accounts. The Seller shall segregate and hold all funds collected and received
pursuant to each Mortgage Loan which constitute Escrow Payments separate and
apart from any of its own funds and general assets and shall establish and
maintain one or more Escrow Accounts, in the form of time deposit or demand
accounts. The creation of any Escrow Account shall be evidenced by Escrow
Account Certification in the form of Exhibit 7.
The Seller shall deposit in the Escrow Account or Accounts within 24
hours of receipt, and retain therein, (i) all Escrow Payments collected on
account of the Mortgage Loans, for the purpose of effecting timely payment of
any such items as required under the terms of this Agreement, and (ii) all
Insurance Proceeds which are to be applied to the restoration or repair of any
Mortgaged Property. The Seller shall make withdrawals therefrom only to effect
such payments as are required under this Agreement, and for such other purposes
as shall be as set forth or in accordance with Section 11.08. The Seller shall
be entitled to retain any interest paid on funds deposited in the Escrow Account
by the depository institution other than interest on escrowed funds required by
law to be paid to the Mortgagor and, to the extent required by law, the Seller
shall pay interest on escrowed funds to the Mortgagor notwithstanding that the
Escrow Account is non-interest bearing or that interest paid thereon is
insufficient for such purposes.
Section 11.07 Permitted Withdrawals From Escrow Account. Withdrawals
from the Escrow Account may be made by the Seller (i) to effect timely payments
of ground rents, taxes, assessments, water rates, hazard insurance premiums,
Primary Insurance Policy premiums, if applicable, and comparable items, (ii) to
reimburse the Seller for any Servicing Advance made by the Seller with respect
to a related Mortgage Loan but only from amounts received on the related
Mortgage Loan which represent late payments or collections of Escrow Payments
thereunder, (iii) to refund to the Mortgagor any funds as may be determined to
be overages, (iv) for transfer to the Custodial Account in accordance with the
terms of this Agreement, (v) for application to restoration or repair of the
Mortgaged Property, (vi) to pay to the Seller, or to the Mortgagor to the extent
required by law, any interest paid on the funds deposited in the Escrow
Ex. 8-6
Account, or (vii) to clear and terminate the Escrow Account on the termination
of this Agreement.
Section 11.08 Payment of Taxes, Insurance and Other Charges;
Maintenance of Primary Insurance Policies; Collections Thereunder. With respect
to each Mortgage Loan, the Seller shall maintain accurate records reflecting the
status of ground rents, taxes, assessments, water rates and other charges which
are or may become a lien upon the Mortgaged Property and the status of Primary
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
insurance renewal premiums and shall effect payment thereof prior to the
applicable penalty or termination date and at a time appropriate for securing
maximum discounts allowable, employing for such purpose deposits of the
Mortgagor in the Escrow Account which shall have been estimated and accumulated
by the Seller in amounts sufficient for such purposes, as allowed under the
terms of the Mortgage and applicable law. To the extent that the Mortgage does
not provide for Escrow Payments, the Seller shall determine that any such
payments are made by the Mortgagor at the time they first become due. The Seller
assumes full responsibility for the timely payment of all such bills and shall
effect timely payments of all such bills irrespective of the Mortgagor's
faithful performance in the payment of same or the making of the Escrow Payments
and shall make advances from its own funds to effect such payments.
The Seller shall maintain in full force and effect, a Primary
Insurance Policy, issued by a Qualified Insurer, with respect to each Mortgage
Loan for which such coverage is required. Such coverage shall be maintained
until the Loan-to-Value Ratio of the related Mortgage Loan is reduced to that
amount for which ▇▇▇▇▇▇ ▇▇▇ no longer requires such insurance to be maintained.
The Seller will not cancel or refuse to renew any Primary Insurance Policy in
effect on the Closing Date that is required to be kept in force under this
Agreement unless a replacement Primary Insurance Policy for such cancelled or
non-renewed 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 Insurance Policy of any loss which, but for the actions of
the Seller, would have been covered thereunder. In connection with any
assumption or substitution agreement entered into or to be entered into pursuant
to Section 11.19, the Seller 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, the
Seller shall obtain a replacement Primary 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 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 11.04, any amounts
collected by the Seller under any Primary Insurance Policy shall be deposited in
the Custodial Account, subject to withdrawal pursuant to Section 11.05.
Ex. 8-7
Section 11.09 Transfer of Accounts. The Seller may transfer the
Custodial Account or the Escrow Account to a different depository institution
from time to time. Such transfer shall be made only upon obtaining the consent
of the Purchaser, which consent shall not be unreasonably withheld. In any case,
the Custodial Account and Escrow Account shall be Eligible Accounts.
Section 11.10 Maintenance of Hazard Insurance. The Seller shall cause
to be maintained for each Mortgage Loan fire and hazard insurance with extended
coverage as is customary in the area where the Mortgaged Property is located in
an amount which is at least equal to the lesser of (i) the amount necessary to
fully compensate for any damage or loss to the improvements which are a part of
such property on a replacement cost basis or (ii) the outstanding principal
balance of the Mortgage Loan, in each case in an amount not less than such
amount as is necessary to prevent the Mortgagor and/or the Mortgagee from
becoming a co-insurer. If the Mortgaged Property is in an area identified on a
Flood Hazard Boundary Map or Flood Insurance Rate Map issued by the Flood
Emergency Management Agency as having special flood hazards and such flood
insurance has been made available, the Seller will cause to be maintained a
flood insurance policy meeting the requirements of the current guidelines of the
Federal Insurance Administration with a generally acceptable insurance carrier,
in an amount representing coverage not less than the lesser of (i) the
outstanding principal balance of the Mortgage Loan or (ii) the maximum amount of
insurance which is available under the National Flood Insurance Act of 1968 or
the Flood Disaster Protection Act of 1973, as amended. The Seller also shall
maintain on any REO Property, fire and hazard insurance with extended coverage
in an amount which is at least equal to the lesser of (i) the maximum insurable
value of the improvements which are a part of such property and (ii) the
outstanding principal balance of the related Mortgage Loan at the time it became
an REO Property plus accrued interest at the Mortgage Interest Rate and related
Servicing Advances, liability insurance and, to the extent required and
available under the National Flood Insurance Act of 1968 or the Flood Disaster
Protection Act of 1973, as amended, flood insurance in an amount as provided
above. Pursuant to Section 11.04, any amounts collected by the Seller under any
such policies other than amounts to be deposited in the Escrow Account and
applied to the restoration or repair of the Mortgaged Property or REO Property,
or released to the Mortgagor in accordance with the Seller's normal servicing
procedures, shall be deposited in the Custodial Account, subject to withdrawal
pursuant to Section 11.05. Any cost incurred by the Seller in maintaining any
such insurance shall not, for the purpose of calculating distributions 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 Seller 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. All such policies shall be endorsed with standard
mortgagee clauses with loss payable to the Seller, or upon request to the
Purchaser, and shall provide for at least thirty days prior written notice of
any cancellation, reduction in the amount of, or material change in, coverage to
the Seller. The Seller shall not interfere with the Mortgagor's freedom of
choice in selecting either his insurance carrier or agent, provided, however,
that the Seller shall not accept any such insurance policies from insurance
companies unless such companies currently reflect a General Policy Rating of
A:VI or better in Best's Key Rating Guide and are licensed to do business in the
state wherein the property subject to the policy is located.
Ex. 8-8
Section 11.11 Maintenance of Mortgage Impairment Insurance Policy. In
the event that the Seller 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 11.10 and otherwise complies with all
other requirements of Section 11.10, the Seller shall conclusively be deemed to
have satisfied its obligations as set forth in Section 11.10, it being
understood and agreed that such policy may contain a deductible clause, in which
case the Seller shall, in the event that there shall not have been maintained on
the related Mortgaged Property or REO Property a policy complying with Section
11.10, and there shall have been 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 Seller
agrees to prepare and present, on behalf of the Purchaser, claims under any such
blanket policy in a timely fashion in accordance with the terms of such policy.
Upon request of the Purchaser, the Seller shall cause to be delivered to the
Purchaser a certified true copy of such policy and 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 Purchaser.
Section 11.12 Fidelity Bond, Errors and Omissions Insurance. The
Seller shall maintain, at its own expense, a blanket fidelity bond and an errors
and omissions insurance policy, with broad coverage with responsible companies
that would meet the requirements of ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ ▇▇▇ on all officers,
employees or other persons acting in any capacity with regard to the Mortgage
Loans 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 Seller
against losses, including forgery, theft, embezzlement, fraud, errors and
omissions and negligent acts of such persons. Such fidelity bond shall also
protect and insure the Seller against losses in connection with the failure to
maintain any insurance policies required pursuant to this Agreement and the
release or satisfaction of a Mortgage Loan without having obtained payment in
full of the indebtedness secured thereby. No provision of this Section 11.12
requiring the fidelity bond and errors and omissions insurance shall diminish or
relieve the Seller from its duties and obligations as set forth in this
Agreement. The minimum coverage under any such bond and insurance policy shall
be at least equal to the corresponding amounts required by ▇▇▇▇▇▇ Mae in the
▇▇▇▇▇▇ ▇▇▇ Servicing Guide or by ▇▇▇▇▇▇▇ Mac in the ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇' and
Servicers' Guide. Upon request of the Purchaser, the Seller shall cause to be
delivered to the Purchaser a certified true copy of the fidelity bond and
insurance policy and 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 Purchaser.
Section 11.13 Title, Management and Disposition of REO Property. In
the event that title to the Mortgaged Property is acquired in foreclosure or by
deed in lieu of foreclosure, the deed or certificate of sale shall be taken in
the name of the person designated by the Purchaser, or in the event 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
Ex. 8-9
obtained by the Seller 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 Seller shall either itself or through an agent selected by the
Seller, manage, conserve, protect and operate each REO Property (and may
temporarily rent the same) 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. If a REMIC election is or is to be made with respect to the arrangement
under which the Mortgage Loans and any REO Property are held, the Seller shall
manage, conserve, protect and operate each REO Property in a manner which does
not cause such REO Property to fail to qualify as "foreclosure property" within
the meaning of Section 860G(a)(8) of the Code or result in the receipt by such
REMIC of any "income from non-permitted assets" within the meaning of Section
860F(a)(2)(B) of the Code or any "net income from foreclosure property" within
the meaning of Section 860G(c)(2) of the Code. The Seller shall cause each REO
Property to be inspected promptly upon the acquisition of title thereto and
shall cause each REO Property to be inspected at least annually thereafter. The
Seller 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 Seller to the Purchaser. The Seller shall use its best efforts
to dispose of the REO Property as soon as possible and shall sell such REO
Property in any event within one year after title has been taken to such REO
Property, unless the Seller determines, and gives appropriate notice to the
Purchaser, that a longer period is necessary for the orderly liquidation of such
REO Property. If a period longer than one year is necessary to sell any REO
property, (i) the Seller 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 Seller as mortgagee, and
a separate servicing agreement between the Seller and the Purchaser shall be
entered into with respect to such purchase money mortgage. Notwithstanding the
foregoing, if a REMIC election is made with respect to the arrangement under
which the Mortgage Loans and the REO Property are held, such REO Property shall
be disposed of within two years or such other period as may be permitted under
Section 860G(a)(8) of the Code.
With respect to each REO Property, the Seller shall segregate and hold
all funds collected and received in connection with the operation of the REO
Property separate and apart from its own funds or general assets and shall
establish and maintain a separate REO Account for each REO Property in the form
of a non-interest bearing demand account, unless an Opinion of Counsel is
obtained by the Seller to the effect that the classification as a grantor trust
or REMIC for federal income tax purposes of the arrangement under which the
Mortgage Loans and the REO Property is held will not be adversely affected by
holding such funds in another manner. Each REO Account shall be established with
the Seller or, with the prior consent of the Purchaser, with a commercial bank,
a mutual savings bank or a savings association. The creation of any REO Account
shall be evidenced by a letter agreement substantially in the form of the
Custodial Account Certification attached as Exhibit 6 hereto. An original of
such letter agreement shall be furnished to any Purchaser upon request.
Ex. 8-10
The Seller shall deposit or cause to be deposited, on a daily basis in
each REO 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 11.10 hereof and the fees
of any managing agent acting on behalf of the Seller. The Seller shall not be
entitled to retain interest paid or other earnings, if any, on funds deposited
in such REO Account. On or before each Determination Date, the Seller shall
withdraw from each REO Account and deposit into the Custodial Account the net
income from the REO Property on deposit in the REO Account.
The Seller shall furnish to the Purchaser on each Remittance Date, an
operating statement for each REO Property covering the operation of each REO
Property for the previous month. Such operating statement shall be accompanied
by such other information as the Purchaser shall reasonably request.
Each REO Disposition shall be carried out by the Seller at such price
and upon such terms and conditions as the Seller deems to be in the best
interest of the Purchaser only with the prior written consent of the Purchaser.
If as of the date title to any REO Property was acquired by the Seller there
were outstanding unreimbursed Servicing Advances with respect to the REO
Property, the Seller, upon an REO Disposition of such REO Property, shall be
entitled to reimbursement for any related unreimbursed Servicing Advances from
proceeds received in connection with such REO Disposition. The proceeds from the
REO Disposition, net of any payment to the Seller as provided above, shall be
deposited in the REO Account and shall be transferred to the Custodial Account
on the Determination Date in the month following receipt thereof for
distribution on the succeeding Remittance Date in accordance with Section 11.14.
Section 11.14 Distributions. On each Remittance Date, the Seller shall
distribute to the Purchaser all amounts credited to the Custodial Account as of
the close of business on the preceding Determination Date, net of charges
against or withdrawals from the Custodial Account pursuant to Section 11.05;
plus (ii) all Monthly Advances, if any, which the Seller is obligated to
distribute pursuant to Section 11.21, minus (iii) any amounts attributable to
Principal Prepayments received after the last day of the calendar month
immediately preceding the related Remittance Date and (iv) any amounts
attributable to Monthly Prepayments collected but due on a Due Date or Dates
subsequent to the preceding Determination Date.
All distributions made to the Purchaser on each Remittance Date will
be made to the Purchaser of record on the preceding Record Date, and shall be
based on the Mortgage Loans owned and held by the Purchaser, and shall be made
by wire transfer of immediately available funds to the account of the Purchaser
at a bank or other entity having appropriate facilities therefor, if the
Purchaser shall have so notified the Seller or by check mailed to the address of
the Purchaser.
With respect to any remittance received by the Purchaser on or after
the Business Day following the Business Day on which such payment was due, the
Seller shall pay to the Purchaser interest on any such late payment at an annual
rate equal to the rate of interest as is publicly announced from time to time by
The Chase Manhattan Bank, New York, New York, at its principal office as its
prime lending rate, adjusted as of the date of each change, plus three
Ex. 8-11
percentage points, but in no event greater than the maximum amount permitted by
applicable law. Such interest shall be paid by the Seller to the Purchaser on
the date such late payment is made and shall cover the period commencing with
the date on which such payment was due and ending with the date on which such
payment is made, both inclusive. Such interest shall be remitted along with such
late payment. The payment by the Seller of any such interest shall not be deemed
an extension of time for payment or a waiver of any Event of Default by the
Seller.
Section 11.15 Remittance Reports. No later than the fifth Business Day
of each month, the Seller shall furnish to the Purchaser and the Master Servicer
a file via computer tape, email or modem containing, and a hard copy of, the
monthly data and the Seller shall also furnish to the Purchaser and the Master
Servicer a report in the format set forth in Exhibits 11, 12 and 13 hereto with
respect to monthly remittance advice, defaulted Mortgage Loans and Realized Loss
Calculations. On the Business Day following each Determination Date, the Seller
shall deliver to the Purchaser or its designee by telecopy (or by such other
means as the Seller and the Purchaser may agree from time to time) a computer
tape containing, and a hard copy of, the determination data with respect to the
related Remittance Date, together with such other information with respect to
the Mortgage Loans as the Purchaser may reasonably require to allocate
distributions made pursuant to this Agreement and provide appropriate statements
with respect to such distributions. On the same date, the Seller shall forward
to the Purchaser by overnight mail a computer readable magnetic tape containing
the information reasonably requested by the Purchaser with respect to the
related Remittance Date.
Section 11.16 Statements to the Purchaser. With respect to the
Mortgage Loans, the Seller shall provide the Purchaser on the Remittance Date, a
report that shall set forth for the prior month for each Mortgage Loan: (i) the
status of the Custodial Account as of the close of business on such Remittance
Date and showing, for the period covered by such statement, the aggregate amount
of deposits into and withdrawals from the Custodial Account of each category of
deposit specified in Section 11.04 and each category of withdrawal specified in
Section 11.05; (ii) the Mortgage Interest Rate; (iii) the amount of any
shortfall in the Servicing Fee due to delinquencies; (iv) the amount of any
delinquency in the scheduled payment of principal and interest delineated at 30
days, 60 days and greater than 90 days past due; and (v) such other information
as may be reasonably requested by the Purchaser.
In addition, not more than sixty days after the end of each calendar
year, the Seller shall furnish to each Person who was the Purchaser at any time
during such calendar year, (i) as to the aggregate of remittances for the
applicable portion of such year, an annual statement in accordance with the
requirements of applicable federal income tax law, and (ii) listing of the
principal balances of the Mortgage Loans outstanding at the end of such calendar
year.
The Seller shall prepare and file any and all tax returns, information
statements or other filings required to be delivered to any governmental taxing
authority or to any Purchaser pursuant to any applicable law with respect to the
Mortgage Loans and the transactions contemplated hereby. In addition, the Seller
shall provide the Purchaser with such information concerning the Mortgage Loans
as is necessary for the Purchaser to prepare its federal income tax return as
any Purchaser may reasonably request from time to time.
Ex. 8-12
Section 11.17 Real Estate Owned Reports. Together with the statement
furnished pursuant to Section 11.02, with respect to any REO Property, the
Seller shall furnish to the Purchaser a statement covering the Seller's efforts
in connection with the sale of such REO Property and any rental of such REO
Property incidental to the sale thereof for the previous month, together with
the operating statement. Such statement shall be accompanied by such other
information as the Purchaser shall reasonably request.
Section 11.18 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 Seller shall submit to the Purchaser and the
Master Servicer a liquidation report in the format set forth in Exhibit 12
hereto, with respect to such Mortgaged Property and all supporting documentation
reasonably required by the Master Servicer..
Section 11.19 Assumption Agreements. The Seller shall, 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, however, that the Seller 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. If the Seller reasonably believes it is unable under applicable
law to enforce such "due-on-sale" clause, the Seller shall enter into an
assumption agreement with the person to whom the Mortgaged Property has been
conveyed or is proposed to be conveyed, pursuant to which such person becomes
liable under the Mortgage Note and, to the extent permitted by applicable state
law, the Mortgagor remains liable thereon. Where an assumption is allowed
pursuant to this Section 11.19, the Seller, with the prior written consent of
the insurer under the Primary Insurance Policy, if any, is authorized to enter
into a substitution of liability agreement with the person to whom the Mortgaged
Property has been conveyed or is proposed to be conveyed pursuant to which the
original Mortgagor is released from liability and such Person is substituted as
Mortgagor and becomes liable under the related Mortgage Note. Any such
substitution of liability agreement shall be in lieu of an assumption agreement.
In connection with any such assumption or substitution of liability,
the Seller shall follow the underwriting practices and procedures of prudent
mortgage lenders in the state in which the related Mortgaged Property is
located. With respect to an assumption or substitution of liability, the
Mortgage Interest Rate, the amount of the Monthly Payment, and the final
maturity date of such Mortgage Note may not be changed. The Seller shall notify
the Purchaser that any such substitution of liability or assumption agreement
has been completed by forwarding to the Purchaser the original of any such
substitution of liability or assumption agreement, which document shall be added
to the related Mortgage File and shall, for all purposes, be considered a part
of such Mortgage File to the same extent as all other documents and instruments
constituting a part thereof. Any fee collected by the Seller for entering into
an assumption or substitution of liability agreement in excess of 1% of the
outstanding principal balance of the Mortgage Loan shall be deposited in the
Custodial Account pursuant to Section 11.04.
Ex. 8-13
Notwithstanding the foregoing paragraphs of this Section or any other
provision of this Agreement, the Seller shall not be deemed to be in default,
breach or any other violation of its obligations hereunder by reason of any
assumption of a Mortgage Loan by operation of law or any assumption which the
Seller may be restricted by law from preventing, for any reason whatsoever. For
purposes of this Section 11.19, the term "assumption" is deemed to also include
a sale of the Mortgaged Property subject to the Mortgage that is not accompanied
by an assumption or substitution of liability agreement.
Section 11.20 Satisfaction of Mortgages and Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the Seller of a
notification that payment in full will be escrowed in a manner customary for
such purposes, the Seller will immediately notify the Purchaser by a
certification of a servicing officer of the Seller (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 Custodial Account pursuant to Section 11.04 have been or
will be so deposited, and shall request execution of any document necessary to
satisfy the Mortgage Loan and delivery to it the portion of the Mortgage File
held by the Purchaser or the Purchaser's designee. Upon receipt of such
certification and request, the Purchaser shall promptly release the related
mortgage documents to the Seller and the Seller shall 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 Custodial
Account or the Purchaser.
In the event the Seller satisfies or releases a Mortgage without
having obtained payment in full of the indebtedness secured by the Mortgage or
should it otherwise prejudice any right the Purchaser may have under the
mortgage instruments, the Seller, upon written demand, shall remit to the
Purchaser the then outstanding principal balance of the related Mortgage Loan by
deposit thereof in the Custodial Account. The Seller shall maintain the fidelity
bond insuring the Seller against any loss it may sustain with respect to any
Mortgage Loan not satisfied in accordance with the procedures set forth herein.
From time to time and as appropriate for the servicing or foreclosure
of the Mortgage Loan, including for this purpose collection under any Primary
Insurance Policy, the Purchaser shall, upon request of the Seller and delivery
to the Purchaser of a servicing receipt signed by a Servicing Officer, release
the requested portion of the Mortgage File held by the Purchaser to the Seller.
Such servicing receipt shall obligate the Seller to return the related Mortgage
documents to the Purchaser when the need therefor by the Seller no longer
exists, unless the Mortgage Loan has been liquidated and the Liquidation
Proceeds relating to the Mortgage Loan have been deposited in the Custodial
Account or the Mortgage File or such document has been delivered to an attorney,
or to a public trustee or other public official as required by law, for purposes
of initiating or pursuing legal action or other proceedings for the foreclosure
of the Mortgaged Property either judicially or non-judicially, and the Seller
has delivered to the Purchaser a certificate of a Servicing Officer certifying
as to the name and address of the Person to which such Mortgage File or such
document was delivered and the purpose or purposes of such delivery. Upon
receipt of a certificate of a Servicing Officer stating that such Mortgage Loan
was liquidated, the servicing receipt shall be released by the Purchaser to the
Seller.
Ex. 8-14
Section 11.21 Monthly Advances by the Seller. Not later than the close
of business on the Business Day preceding each Remittance Date, the Seller shall
deposit in the Custodial Account an amount equal to all payments not previously
advanced by the Seller, whether or not deferred pursuant to Section 11.01, of
principal (due after the Cut-off Date) and interest not allocable to the period
prior to the Cut-off Date, at the Mortgage Interest Rate net of the Servicing
Fee, which were due on a Mortgage Loan and delinquent at the close of business
on the related Determination Date.
(b) The obligation of the Seller to make such Monthly Advances is
mandatory, notwithstanding any other provision of this Agreement, and, with
respect to any Mortgage Loan or REO Property, 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 that, notwithstanding
anything herein to the contrary, no Monthly Advance shall be required to be made
hereunder by the Seller if such Monthly Advance would, if made, constitute a
Nonrecoverable Monthly Advance. The determination by the Seller that it has made
a Nonrecoverable Monthly Advance or that any proposed Monthly Advance, if made,
would constitute a Nonrecoverable Monthly Advance, shall be evidenced by an
Officers' Certificate delivered to the Purchaser and Master Servicer.
Section 11.22 Servicing Compensation. As compensation for its services
hereunder, the Seller shall, subject to Section 11.04(xi), be entitled to
withdraw from the Custodial Account or to retain from interest payments on the
Mortgage Loans the amounts provided for as the Servicing Fee. Additional
servicing compensation in the form of assumption fees, as provided in Section
11.19, and late payment charges or otherwise shall be retained by the Seller to
the extent not required to be deposited in the Custodial Account. The Seller
shall be required to pay all expenses incurred by it in connection with its
servicing activities hereunder and shall not be entitled to reimbursement
therefor except as specifically provided for.
Section 11.23 Notification of Adjustments. On each Adjustment Date,
the Seller shall make interest rate adjustments for each Adjustable Rate
Mortgage Loan in compliance with the requirements of the related Mortgage and
Mortgage Note. The Seller shall execute and deliver the notices required by each
Mortgage and Mortgage Note regarding interest rate adjustments. The Seller also
shall provide timely notification to the Owner of all applicable data and
information regarding such interest rate adjustments and the Seller's methods of
implementing such interest rate adjustments. Upon the discovery by the Seller or
the Owner that the Seller has failed to adjust a Mortgage Interest Rate or a
Monthly Payment pursuant to the terms of the related Mortgage Note and Mortgage,
the Seller shall immediately deposit in the Custodial Account from its own funds
the amount of any interest loss caused thereby without reimbursement therefor.
Section 11.24 Servicer Compliance Statement. On or before March 1 of
each calendar year, commencing in 2007, the Seller shall deliver to the
Purchaser, any Master Servicer and any Depositor a statement of compliance
addressed to the Purchaser, such Master Servicer and such Depositor and signed
by an authorized officer of the Seller, to the effect that (i) a review of the
Seller's activities during the immediately preceding calendar year (or
Ex. 8-15
applicable portion thereof) and of its performance under this Agreement and any
applicable Reconstitution Agreement during such period has been made under such
officer's supervision, and (ii) to the best of such officers' knowledge, based
on such review, the Seller has fulfilled all of its obligations under this
Agreement and any applicable Reconstitution Agreement in all material respects
throughout such calendar year (or applicable portion thereof) or, if there has
been a failure to fulfill any such obligation in any material respect,
specifically identifying each such failure known to such officer and the nature
and the status thereof.
Section 11.25 [Reserved].
Section 11.26 Access to Certain Documentation. The Seller shall
provide to the Office of Thrift Supervision, the FDIC and any other federal or
state banking or insurance regulatory authority that may exercise authority over
the Purchaser access to the documentation regarding the Mortgage Loans serviced
by the Seller required by applicable laws and regulations. Such access shall be
afforded without charge, but only upon reasonable request and during normal
business hours at the offices of the Seller. In addition, access to the
documentation will be provided to the Purchaser and any Person identified to the
Seller by the Purchaser without charge, upon reasonable request during normal
business hours at the offices of the Seller.
Section 11.27 Reports and Returns to be Filed by the Seller. The
Seller shall file information reports with respect to the receipt of mortgage
interest received in a trade or business, reports of foreclosures and
abandonments of any Mortgaged Property and information returns relating to
cancellation of indebtedness income with respect to any Mortgaged Property as
required by Sections 6050H, 6050J and 6050P of the Code. Such reports shall be
in form and substance sufficient to meet the reporting requirements imposed by
such Sections 6050H, 6050J and 6050P of the Code.
Section 11.28 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 Seller 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
Seller 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 11.29 Inspections. The Seller shall inspect the Mortgaged
Property as often as deemed necessary by the Seller to assure itself that the
value of the Mortgaged Property is being preserved. In addition, if any Mortgage
Loan is more than 60 days delinquent, the Seller 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 Seller shall keep a written report of each such
inspection.
Ex. 8-16
Section 11.30 Credit Reporting. The Seller shall fully furnish, in
accordance with the Fair Credit Reporting Act and its implementing regulations,
accurate and complete information on the Mortgagor credit files to Equifax,
Experian and Trans Union Credit Information Company on a monthly basis.
Section 11.31 Compliance with Safeguarding Customer Information
Requirements. The Seller has implemented and will maintain security measures
designed to meet the objectives of the Interagency Guidelines Establishing
Standards for Safeguarding Customer Information published in final form on
February 1, 2001, 66 Fed. Reg. 8616, and the rules promulgated thereunder, as
amended from time to time (the "Guidelines"). The Seller shall promptly provide
Purchaser with information regarding such security measures upon the reasonable
request of Purchaser which information shall include, but not be limited to, any
SAS 70 report covering the Seller's operations, and any other audit reports,
summaries of test results or equivalent measures taken by the Seller with
respect to its security measures.
Section 11.32. Report on Assessment of Compliance and Attestation.
(c) On or before March 1 of each calendar year, commencing in 2007,
the Seller shall:
(i) deliver to the Purchaser, any Master Servicer and any
Depositor a report (in form and substance reasonably satisfactory to the
Purchaser, such Master Servicer and such Depositor) regarding the Seller's
assessment of compliance with the Servicing Criteria during the immediately
preceding calendar year, as required under Rules 13a-18 and 15d-18 of the
Exchange Act and Item 1122 of Regulation AB. Such report shall be addressed
to the Purchaser, such Master Servicer and such Depositor and signed by an
authorized officer of the Seller, and shall address each of the "Applicable
Servicing Criteria" specified on Exhibit 14 hereto;
(ii) deliver to the Purchaser, any Master Servicer and any
Depositor a report of a registered public accounting firm reasonably
acceptable to the Purchaser, such Master Servicer and such Depositor that
attests to, and reports on, the assessment of compliance made by the Seller
and delivered pursuant to the preceding paragraph. Such attestation shall
be in accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under
the Securities Act and the Exchange Act;
(iii) cause each Subservicer, and each Subcontractor determined
by the Seller pursuant to Section 11.33(b) to be "participating in the
servicing function" within the meaning of Item 1122 of Regulation AB to
deliver to the Purchaser, any Master Servicer and any Depositor an
assessment of compliance and accountants' attestation as and when provided
in paragraphs (a) and (b) of this Section; and, to the extent required of
such Subservicer or such Subcontractor under Item 1123 of Regulation AB, an
annual compliance certification as and when required under Section 11.24;
and
(iv) if requested by the Purchaser, any Master Sevicer or any
Depositor not later than February 1 of the calendar year in which such
certification is to be
Ex. 8-17
delivered, deliver, and cause each Subservicer and Subcontractor described
in clause (iii) above to deliver, to the Purchaser, any Depositor, any
Master Servicer and any other Person that will be responsible for signing
the certification (a "Sarbanes Certification") required by Rules 13a-14(d)
and 15d-14(d) under the Exchange Act (pursuant to Section 302 of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002) on behalf of an asset-backed issuer with
respect to a Securitization Transaction a certification, signed by the
appropriate officer of the Seller, in the form attached as Exhibit 10
hereto.
The Seller acknowledges that the parties identified in clause (a)(iv)
above may rely on the certification provided by the Seller pursuant to such
clause in signing a Sarbanes Certification and filing such with the Commission.
(d) Each assessment of compliance provided by a Subservicer pursuant
to Section 11.32(a)(i) shall address each of the Servicing Criteria specified on
a certification, substantially in the form of Exhibit 14 hereto, delivered to
the Purchaser concurrently with the execution of this Agreement or, in the case
of a Subservicer subsequently appointed as such, on or prior to the date of such
appointment. An assessment of compliance provided by a Subcontractor pursuant to
Section 11.32(a)(iii) need not address any elements of the Servicing Criteria
other than those specified by the Seller pursuant to Section 11.33.
Section 11.33. Use of Subservicers and Subcontractors. The Seller
shall not hire or otherwise utilize the services of any Subservicer to fulfill
any of the obligations of the Seller as servicer under this Agreement or any
Reconstitution Agreement unless the Seller complies with the provisions of
paragraph (a) of this Section. The Seller shall not hire or otherwise utilize
the services of any Subcontractor, and shall not permit any Subservicer to hire
or otherwise utilize the services of any Subcontractor, to fulfill any of the
obligations of the Seller as servicer under this Agreement or any Reconstitution
Agreement unless the Seller complies with the provisions of paragraph (b) of
this Section.
(e) It shall not be necessary for the Seller to seek the consent of
the Purchaser, any Master Servicer or any Depositor to the utilization of any
Subservicer. The Seller shall cause any Subservicer used by the Seller (or by
any Subservicer) for the benefit of the Purchaser and any Depositor to comply
with the provisions of this Section, Section 11.24 and 11.32 and Subsections
12.03, 12.04(c), (e), (f) and (g), and 12.05 of the Agreement to the same extent
as if such Subservicer were the Seller, and to provide the information required
with respect to such Subservicer under Subsection 12.04(d) of this Agreement.
The Seller shall be responsible for obtaining from each Subservicer and
delivering to the Purchaser and any Depositor any servicer compliance statement
required to be delivered by such Subservicer under Section 11.24, any assessment
of compliance and attestation required to be delivered by such Subservicer under
Section 11.32 and any certification required to be delivered to the Person that
will be responsible for signing the Sarbanes Certification under Section 11.32
as and when required to be delivered.
(f) It shall not be necessary for the Seller to seek the consent of
the Purchaser, any Master Servicer or any Depositor to the utilization of any
Subcontractor. The Seller shall promptly upon request provide to the Purchaser,
any Master Servicer and any Depositor (or any designee of the Depositor, such as
an administrator) a written description (in
Ex. 8-18
form and substance satisfactory to the Purchaser, such Depositor and such Master
Servicer) of the role and function of each Subcontractor utilized by the Seller
or any Subservicer, specifying (i) the identity of each such Subcontractor, (ii)
which (if any) of such Subcontractors are "participating in the servicing
function" within the meaning of Item 1122 of Regulation AB, and (iii) which
elements of the Servicing Criteria will be addressed in assessments of
compliance provided by each Subcontractor identified pursuant to clause (ii) of
this paragraph.
As a condition to the utilization of any Subcontractor determined to
be "participating in the servicing function" within the meaning of Item 1122 of
Regulation AB, the Seller shall cause any such Subcontractor used by the Seller
(or by any Subservicer) for the benefit of the Purchaser and any Depositor to
comply with the provisions of Section 11.32 and Subsection 12.05 of the
Agreement to the same extent as if such Subcontractor were the Seller. The
Seller shall be responsible for obtaining from each Subcontractor and delivering
to the Purchaser and any Depositor any assessment of compliance and attestation
and the other certifications required to be delivered by such Subservicer and
such Subcontractor under Section 11.32, in each case as and when required to be
delivered.
Ex. 8-19
EXHIBIT 9
FORM OF PURCHASE PRICE AND TERMS LETTER
Ex. 9-1
EXHIBIT 10
ANNUAL CERTIFICATION
ATTACHMENT 6
FORM OF ANNUAL CERTIFICATION
Re: The [_____] agreement dated as of [__________ l, 200[_] (the
"Agreement"), among [IDENTIFY PARTIES]
I, ____________________________, the _______________________ of [NAME OF
COMPANY] (the "Company"), certify to [the Purchaser], [the Depositor], and the
[Master Servicer] [Securities Administrator] [Trustee], and their officers, with
the knowledge and intent that they will rely upon this certification, that:
I have reviewed the servicer compliance statement of the Company provided in
accordance with Item 1123 of Regulation AB (the "Compliance Statement"), the
report on assessment of the Company's compliance with the servicing criteria set
forth in Item 1122(d) of Regulation AB (the "Servicing Criteria"), provided in
accordance with Rules 13a-18 and 15d-18 under Securities Exchange Act of 1934,
as amended (the "Exchange Act") and Item 1122 of Regulation AB (the "Servicing
Assessment"), the registered public accounting firm's attestation report
provided in accordance with Rules 13a-18 and 15d-18 under the Exchange Act and
Section 1122(b) of Regulation AB (the "Attestation Report"), and all servicing
reports, officer's certificates and other information relating to the servicing
of the Mortgage Loans by the Company during 200[ ] that were delivered by the
Company to the [Depositor] [Master Servicer] [Securities Administrator]
[Trustee] pursuant to the Agreement (collectively, the "Company Servicing
Information");
Based on my knowledge, the Company Servicing Information, taken as a whole, does
not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements made, in the light of the circumstances
under which such statements were made, not misleading with respect to the period
of time covered by the Company Servicing Information;
Based on my knowledge, all of the Company Servicing Information required to be
provided by the Company under the Agreement has been provided to the [Depositor]
[Master Servicer] [Securities Administrator] [Trustee];
I am responsible for reviewing the activities performed by the Company as
servicer under the Agreement, and based on my knowledge and the compliance
review conducted in preparing the Compliance Statement and except as disclosed
in the Compliance Statement, the Servicing Assessment or the Attestation Report,
the Company has fulfilled its obligations under the Agreement in all material
respects; and
The Compliance Statement required to be delivered by the Company pursuant to
this Agreement, and the Servicing Assessment and Attestation Report required to
be provided by the Company and by any Subservicer and Subcontractor pursuant to
the Agreement, have been provided to the
Ex. 10-1
[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:
---------------------------------
SCHEDULE ONE
FINAL MORTGAGE LOAN SCHEDULE
Sch. One-1
EXHIBIT 11
MONTHLY REMITTANCE ADVICE
MAX
COLUMN NAME DESCRIPTION DECIMAL FORMAT COMMENT SIZE
----------- ----------- ------- -------------- ----
SER_INVESTOR_NBR A value assigned by the Servicer to define a Text up to 10 digits 20
group of loans.
LOAN_NBR A unique identifier assigned to each loan by the Text up to 10 digits 10
investor.
SERVICER_LOAN_NBR A unique number assigned to a loan by the Text up to 10 digits 10
Servicer. This may be different than the
LOAN_NBR.
BORROWER_NAME The borrower name as received in the file. It is Maximum length of 30 (Last, First) 30
not separated by first and last name.
SCHED_PAY_AMT Scheduled monthly principal and scheduled 2 No commas(,) or dollar signs ($) 11
interest payment that a borrower is expected to
pay, P&I constant.
NOTE_INT_RATE The loan interest rate as reported by the 4 Max length of 6 6
Servicer.
NET_INT_RATE The loan gross interest rate less the service fee 4 Max length of 6 6
rate as reported by the Servicer.
SERV_FEE_RATE The servicer's fee rate for a loan as reported by 4 Max length of 6 6
the Servicer.
SERV_FEE_AMT The servicer's fee amount for a loan as reported 2 No commas(,) or dollar signs ($) 11
by the Servicer.
NEW_PAY_AMT The new loan payment amount as reported by the
Servicer. 2 No commas(,) or dollar signs ($) 11
NEW_LOAN_RATE The new loan rate as reported by the Servicer. 4 Max length of 6 6
ARM_INDEX_RATE The index the Servicer is using to calculate a 4 Max length of 6 6
forecasted rate.
ACTL_BEG_PRIN_BAL The borrower's actual principal balance at the 2 No commas(,) or dollar signs ($) 11
beginning of the processing cycle.
ACTL_END_PRIN_BAL The borrower's actual principal balance at the 2 No commas(,) or dollar signs ($) 11
end of the processing cycle.
BORR_NEXT_PAY_DUE_DATE The date at the end of processing cycle that the MM/DD/YYYY 10
borrower's next payment is due to the Servicer,
as reported by Servicer.
SERV_CURT_AMT_1 The first curtailment amount to be applied. 2 No commas(,) or dollar signs ($) 11
SERV_CURT_DATE_1 The curtailment date associated with the first MM/DD/YYYY 10
curtailment amount.
CURT_ADJ_ AMT_1 The curtailment interest on the first curtailment 2 No commas(,) or dollar signs ($) 11
amount, if applicable.
SERV_CURT_AMT_2 The second curtailment amount to be applied. 2 No commas(,) or dollar signs ($) 11
SERV_CURT_DATE_2 The curtailment date associated with the second MM/DD/YYYY 10
curtailment amount.
URT_ADJ_ AMT_2 The curtailment interest on the second 2 No commas(,) or dollar signs ($) 11
curtailment amount, if applicable.
SERV_CURT_AMT_3 The third curtailment amount to be applied. 2 No commas(,) or dollar signs ($) 11
SERV_CURT_DATE_3 The curtailment date associated with the third MM/DD/YYYY 10
curtailment amount.
The curtailment interest on the third curtailment
CURT_ADJ_AMT_3 amount, if applicable. 2 No commas(,) or dollar signs ($) 11
PIF_AMT The loan "paid in full" amount as reported by the 2 No commas(,) or dollar signs ($) 11
Servicer.
Sch. One - 1
PIF_DATE The paid in full date as reported by the MM/DD/YYYY 10
Servicer.
ACTION_CODE The standard FNMA numeric code used to indicate Action Code Key: 15=Bankruptcy, 2
the default/delinquent status of a particular 30=Foreclosure, , 60=PIF,
loan. 63=Substitution, 65=Repurchase,70=REO
INT_ADJ_AMT The amount of the interest adjustment as reported 2 No commas(,) or dollar signs ($) 11
by the Servicer.
SOLDIER_SAILOR_ADJ_AMT The Soldier and Sailor Adjustment amount, if 2 No commas(,) or dollar signs ($) 11
applicable.
NON_ADV_LOAN_AMT The Non Recoverable Loan Amount, if applicable. 2 No commas(,) or dollar signs ($) 11
LOAN_LOSS_AMT The amount the Servicer is passing as a loss, if 2 No commas(,) or dollar signs ($) 11
applicable.
SCHED_BEG_PRIN_BAL The scheduled outstanding principal amount due at 2 No commas(,) or dollar signs ($) 11
the beginning of the cycle date to be passed
through to investors.
SCHED_END_PRIN_BAL The scheduled principal balance due to investors 2 No commas(,) or dollar signs ($) 11
at the end of a processing cycle.
SCHED_PRIN_AMT The scheduled principal amount as reported by the 2 No commas(,) or dollar signs ($) 11
Servicer for the current cycle -- only applicable
for Scheduled/Scheduled Loans.
SCHED_NET_INT The scheduled gross interest amount less the 2 No commas(,) or dollar signs ($) 11
service fee amount for the current cycle as
reported by the Servicer -- only applicable for
Scheduled/Scheduled Loans.
ACTL_PRIN_AMT The actual principal amount collected by the 2 No commas(,) or dollar signs ($) 11
Servicer for the current reporting cycle -- only
applicable for Actual/Actual Loans.
ACTL_NET_INT The actual gross interest amount less the service 2 No commas(,) or dollar signs ($) 11
fee amount for the current reporting cycle as
reported by the Servicer -- only applicable for
Actual/Actual Loans.
PREPAY_PENALTY_ AMT The penalty amount received when a borrower 2 No commas(,) or dollar signs ($) 11
prepays on his loan as reported by the Servicer.
PREPAY_PENALTY_ WAIVED The prepayment penalty amount for the loan waived 2 No commas(,) or dollar signs ($) 11
by the servicer.
MOD_DATE The Effective Payment Date of the Modification MM/DD/YYYY 10
for the loan.
MOD_TYPE The Modification Type. Varchar - value can be alpha or numeric 30
DELINQ_P&I_ADVANCE_AMT The current outstanding principal and interest 2 No commas(,) or dollar signs ($) 11
advances made by Servicer.
EXHIBIT 12
REPORTING DATA FOR DEFAULTED LOANS
FORMAT
COLUMN/HEADER NAME DESCRIPTION DECIMAL COMMENT
--------------------------- ----------------------------------------------------------------------------- ------- ------------
SERVICER_LOAN_NBR A unique number assigned to a loan by the Servicer. This may be different
than the LOAN_NBR
LOAN_NBR A unique identifier assigned to each loan by the originator.
CLIENT_NBR Servicer Client Number
SERV_INVESTOR_NBR Contains a unique number as assigned by an external servicer to identify a
group of loans in their system.
BORROWER_FIRST_NAME First Name of the Borrower.
BORROWER_LAST_NAME Last name of the borrower.
PROP_ADDRESS Street Name and Number of Property
PROP_STATE The state where the property located.
PROP_ZIP Zip code where the property is located.
BORR_NEXT_PAY_DUE_DATE The date that the borrower's next payment is due to the servicer at the end MM/DD/YYYY
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 filed. MM/DD/YYYY
BANKRUPTCY_CHAPTER_CODE The chapter under which the bankruptcy was filed.
BANKRUPTCY_CASE_NBR The case number assigned by the court to the bankruptcy filing.
POST_PETITION_DUE_DATE The payment due date once the bankruptcy has been approved by the courts MM/DD/YYYY
BANKRUPTCY_DCHRG_DISM_DATE The Date The Loan Is Removed From Bankruptcy. Either by Dismissal, Discharged MM/DD/YYYY
and/or a Motion For Relief Was Granted.
LOSS_MIT_APPR_DATE The Date The Loss Mitigation Was Approved By The Servicer MM/DD/YYYY
LOSS_MIT_TYPE The Type Of Loss Mitigation Approved For A Loan Such As;
LOSS_MIT_EST_COMP_DATE The Date The Loss Mitigation /Plan Is Scheduled To End/Close MM/DD/YYYY
LOSS_MIT_ACT_COMP_DATE The Date The Loss Mitigation Is Actually Completed MM/DD/YYYY
FRCLSR_APPROVED_DATE The date DA Admin sends a letter to the servicer with instructions to begin MM/DD/YYYY
foreclosure proceedings.
ATTORNEY_REFERRAL_DATE Date File Was Referred To Attorney to Pursue Foreclosure MM/DD/YYYY
FIRST_LEGAL_DATE Notice of 1st legal filed by an Attorney in a Foreclosure Action MM/DD/YYYY
FRCLSR_SALE_EXPECTED_DATE The date by which a foreclosure sale is expected to occur. MM/DD/YYYY
FRCLSR_SALE_DATE The actual date of the foreclosure sale. MM/DD/YYYY
FRCLSR_SALE_AMT The amount a property sold for at the foreclosure sale. 2 No commas(,)
or dollar
signs ($)
EVICTION_START_DATE The date the servicer initiates eviction of the borrower. MM/DD/YYYY
EVICTION_COMPLETED_DATE The date the court revokes legal possession of the property from the borrower. MM/DD/YYYY
LIST_PRICE The price at which an REO property is marketed. 2 No commas(,)
or dollar
signs ($)
LIST_DATE The date an REO property is listed at a particular price. MM/DD/YYYY
OFFER_AMT The dollar value of an offer for an REO property. 2 No commas(,)
or dollar
signs ($)
OFFER_DATE_TIME The date an offer is received by DA Admin or by the Servicer. MM/DD/YYYY
REO_CLOSING_DATE The date the REO sale of the property is scheduled to close. MM/DD/YYYY
REO_ACTUAL_CLOSING_DATE Actual Date Of REO Sale MM/DD/YYYY
OCCUPANT_CODE Classification of how the property is occupied.
PROP_CONDITION_CODE A code that indicates the condition of the property.
PROP_INSPECTION_DATE The date a property inspection is performed. MM/DD/YYYY
APPRAISAL_DATE The date the appraisal was done. MM/DD/YYYY
CURR_PROP_VAL The current "as is" value of the property based on brokers price opinion or 2
appraisal.
REPAIRED_PROP_VAL The amount the property would be worth if repairs are completed pursuant to a 2
broker's price opinion or appraisal.
IF APPLICABLE:
DELINQ_STATUS_CODE FNMA Code Describing Status of Loan
DELINQ_REASON_CODE The circumstances which caused a borrower to stop paying on a loan. Code
indicates the reason why the loan is in default for this cycle.
MI_CLAIM_FILED_DATE Date Mortgage Insurance Claim Was Filed With Mortgage Insurance Company. MM/DD/YYYY
MI_CLAIM_AMT Amount of Mortgage Insurance Claim Filed No commas(,)
or dollar
signs ($)
MI_CLAIM_PAID_DATE Date Mortgage Insurance Company Disbursed Claim Payment MM/DD/YYYY
MI_CLAIM_AMT_PAID Amount Mortgage Insurance Company Paid On Claim 2 No commas(,)
or dollar
signs ($)
POOL_CLAIM_FILED_DATE Date Claim Was Filed With Pool Insurance Company MM/DD/YYYY
POOL_CLAIM_AMT Amount of Claim Filed With Pool Insurance Company 2 No commas(,)
or dollar
signs ($)
POOL_CLAIM_PAID_DATE Date Claim Was Settled and The Check Was Issued By The Pool Insurer MM/DD/YYYY
POOL_CLAIM_AMT_PAID Amount Paid On Claim By Pool Insurance Company 2 No commas(,)
or dollar
signs ($)
FHA_PART_A_CLAIM_FILED_DATE Date FHA Part A Claim Was Filed With HUD MM/DD/YYYY
FHA_PART_A_CLAIM_AMT Amount of FHA Part A Claim Filed 2 No commas(,)
or dollar
signs ($)
FHA_PART_A_CLAIM_PAID_DATE Date HUD Disbursed Part A Claim Payment MM/DD/YYYY
FHA_PART_A_CLAIM_PAID_AMT Amount HUD Paid on Part A Claim 2 No commas(,)
or dollar
signs ($)
FHA_PART_B_CLAIM_FILED_DATE Date FHA Part B Claim Was Filed With HUD MM/DD/YYYY
FHA_PART_B_CLAIM_AMT Amount of FHA Part B Claim Filed 2 No commas(,)
or dollar
signs ($)
FHA_PART_B_CLAIM_PAID_DATE Date HUD Disbursed Part B Claim Payment MM/DD/YYYY
FHA_PART_B_CLAIM_PAID_AMT Amount HUD Paid on Part B Claim 2 No commas(,)
or dollar
signs ($)
VA_CLAIM_FILED_DATE Date VA Claim Was Filed With the Veterans Admin MM/DD/YYYY
VA_CLAIM_PAID_DATE Date Veterans Admin. Disbursed VA Claim Payment MM/DD/YYYY
VA_CLAIM_PAID_AMT Amount Veterans Admin. Paid on VA Claim 2 No commas(,)
or dollar
signs ($)
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
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
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 13
REALIZED LOSS CALCULATION INFORMATION
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 ( ).
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 PERIOD BASE
(TAX /INS.) DATE PAID OF COVERAGE TOTAL PAID AMOUNT PENALTIES INTEREST
----------- --------- ----------- ---------- ------ --------- --------
EXHIBIT 14
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by [the Company] [Name of
Subservicer] shall address, at a minimum, the criteria identified as below as
"Applicable Servicing Criteria":
APPLICABLE
SERVICING
SERVICING CRITERIA CRITERIA
---------------------------------------------------------------------------------------------
REFERENCE CRITERIA
--------- --------
GENERAL SERVICING CONSIDERATIONS
Policies and procedures are instituted to monitor any
performance or other triggers and events of default in
1122(d)(1)(i) accordance with the transaction agreements. X
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
1122(d)(1)(ii) servicing activities. X
Any requirements in the transaction agreements to maintain a
1122(d)(1)(iii) back-up servicer for the mortgage loans are maintained.
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
1122(d)(1)(iv) transaction agreements. X
CASH COLLECTION AND ADMINISTRATION
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
1122(d)(2)(i) number of days specified in the transaction agreements. X
Disbursements made via wire transfer on behalf of an obligor
1122(d)(2)(ii) or to an investor are made only by authorized personnel. X
Advances of funds or guarantees regarding collections, cash
flows or distributions, and any interest or other fees
charged for such advances, are made, reviewed and approved as
1122(d)(2)(iii) specified in the transaction agreements. X
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. X
Each custodial account is maintained at a federally insured
depository institution as set forth in the transaction
agreements. For purposes of this criterion, "federally
insured depository institution" with respect to a foreign
financial institution means a foreign financial institution
that meets the requirements of Rule 13k-1(b)(1) of the
1122(d)(2)(v) Securities Exchange Act. X
Unissued checks are safeguarded so as to prevent unauthorized
1122(d)(2)(vi) access. X
Reconciliations are prepared on a monthly basis for all
asset-backed securities related bank accounts, including
1122(d)(2)(vii) custodial accounts and related bank clearing X
Sch One-1
APPLICABLE
SERVICING
SERVICING CRITERIA CRITERIA
---------------------------------------------------------------------------------------------
REFERENCE CRITERIA
--------- --------
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
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
1122(d)(3)(i) of mortgage loans serviced by the Servicer. X
Amounts due to investors are allocated and remitted in
accordance with timeframes, distribution priority and other
1122(d)(3)(ii) terms set forth in the transaction agreements. X
Disbursements made to an investor are posted within two
business days to the Servicer's investor records, or such
1122(d)(3)(iii) other number of days specified in the transaction agreements. X
Amounts remitted to investors per the investor reports agree
with cancelled checks, or other form of payment, or custodial
1122(d)(3)(iv) bank statements. X
POOL ASSET ADMINISTRATION
Collateral or security on mortgage loans is maintained as
required by the transaction agreements or related mortgage
1122(d)(4)(i) loan documents. X
Mortgage loan and related documents are safeguarded as
1122(d)(4)(ii) required by the transaction agreements. X
Any additions, removals or substitutions to the asset pool
are made, reviewed and approved in accordance with any
1122(d)(4)(iii) conditions or requirements in the transaction agreements. X
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
1122(d)(4)(iv) accordance with the related mortgage loan documents. X
The Servicer's records regarding the mortgage loans agree
with the Servicer's records with respect to an obligor's
1122(d)(4)(v) unpaid principal balance. X
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
1122(d)(4)(vi) accordance with the transaction agreements and
APPLICABLE
SERVICING
SERVICING CRITERIA CRITERIA
---------------------------------------------------------------------------------------------
REFERENCE CRITERIA
--------- --------
related pool asset documents. X
Loss mitigation or recovery actions (e.g., forbearance plans,
modifications and deeds in lieu of foreclosure, foreclosures
and repossessions, as applicable) are initiated, conducted
and concluded in accordance with the timeframes or other
1122(d)(4)(vii) requirements established by the transaction agreements. X
Records documenting collection efforts are maintained during
the period a mortgage loan is delinquent in accordance with
the transaction agreements. Such records are maintained on at
least a monthly basis, or such other period specified in the
transaction agreements, and describe the entity's activities
in monitoring delinquent mortgage loans including, for
example, phone calls, letters and payment rescheduling plans
in cases where delinquency is deemed temporary (e.g., illness
1122(d)(4)(viii) or unemployment). X
Adjustments to interest rates or rates of return for mortgage
loans with variable rates are computed based on the related
1122(d)(4)(ix) mortgage loan documents. X
Regarding any funds held in trust for an obligor (such as
escrow accounts): (A) such funds are analyzed, in accordance
with the obligor's mortgage loan documents, on at least an
annual basis, or such other period specified in the
transaction agreements; (B) interest on such funds is paid,
or credited, to obligors in accordance with applicable
mortgage loan documents and state laws; and (C) such funds
are returned to the obligor within 30 calendar days of full
repayment of the related mortgage loans, or such other number
1122(d)(4)(x) of days specified in the transaction agreements. X
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
1122(d)(4)(xi) transaction agreements. X
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
1122(d)(4)(xii) was due to the obligor's error or omission. X
Disbursements made on behalf of an obligor are posted within
two business days to the obligor's records maintained by the
servicer, or such other number of days specified in the
1122(d)(4)(xiii) transaction agreements. X
Delinquencies, charge-offs and uncollectible accounts are
recognized and recorded in accordance with the transaction
1122(d)(4)(xiv) agreements. X
Any external enhancement or other support, identified in Item [X]
1114(a)(1) through (3) or Item 1115 of Regulation AB, is if
1122(d)(4)(xv) maintained as set forth in the transaction agreements. obligated
under
transaction
documents