EXECUTION COPY MORTGAGE LOAN FLOW PURCHASE, SALE, AND SERVICING AGREEMENT Dated and effective as of January 1, 2006 RWT HOLDINGS, INC. (Purchaser) GREENPOINT MORTGAGE FUNDING, INC. (Seller) and REDWOOD TRUST, INC. (Guarantor) Adjustable Rate...
Exhibit
10.10
EXECUTION
COPY
Dated
and
effective as of January 1, 2006
RWT
HOLDINGS, INC.
(Purchaser)
GREENPOINT
MORTGAGE FUNDING, INC.
(Seller)
and
REDWOOD
TRUST, INC.
(Guarantor)
Adjustable
Rate Conventional Mortgage Loans
-1-
Exhibit
10.10
This
is a
Mortgage Loan Flow Purchase, Sale and Servicing Agreement, dated and effec-tive
as of January 1, 2006, and is executed between RWT Holdings, Inc., a Delaware
corporation, as purchaser (hereinafter, the “Purchaser”), GreenPoint Mortgage
Funding, Inc., a New York corporation, as seller and servicer (the “Seller”),
and Redwood Trust, Inc., a Maryland corporation (the “Guarantor”).
The
Purchaser and the Seller desire to establish a flow program whereby the Seller
will make Mortgage Loans which meet the applicable provisions of this Agreement,
and the Purchaser will, on a regular basis, purchase such Mortgage Loans from
the Seller, as applicable, provided the parties agree on the price, date and
other conditions or considerations as set forth in this Agreement.
All
of
the Mortgage Loans will be secured by first mort-gages or deeds of trust on
residential dwellings situated within the state(s) indicated on the Mortgage
Loan Schedule.
The
Purchaser and Seller wish to prescribe the manner of purchase by the Purchaser
and the management, servicing and control of the Mortgage Loans.
In
consideration of the premises and the mutual agree-ments hereinafter set forth,
the Purchaser and the Seller agree as follows:
ARTICLE
I
DEFINITIONS
Whenever
used herein, the following words and phrases, unless the context otherwise
requires, shall have the following meanings:
“Agreement”:
This Mortgage Loan Flow Purchase, Sale and Servicing Agreement, including all
exhibits hereto, and all amend-ments hereof and supplements hereto.
“ALTA”:
The American Land Title Association.
“Annual
Mortgage Interest Rate Cap”: The maximum amount, as provided in the Mortgage
Note, that a Mortgage Interest Rate can change on any Interest Rate Change
Date.
“Appraised
Value”: The amount set forth in an appraisal in connection with the origination
of each Mortgage Loan as the value of the Mortgaged Property.
“Assessment
of Compliance” The statement as defined in Section 6.05 hereto.
“Assignment
of Mortgage”: An assignment of the ▇▇▇▇-▇▇▇▇, notice of transfer or equivalent
instrument in recordable form (but not recorded) that, when properly completed
and recorded, is sufficient under the laws of the jurisdiction wherein the
related Mortgaged Property is located to reflect of record the sale of the
Mortgage Loan to the Purchaser.
-2-
Exhibit
10.10
“Assumed
Principal Balance”: As to each Mortgage Loan as of any date of determination,
(i) the principal balance of the Mortgage Loan outstanding as of the Cut-off
Date after application of payments due on or before the Cut-off Date, whether
or
not received, minus
((ii)
all
amounts previously distributed to the Purchaser with respect to the Mortgage
Loan pursuant to Section 5.01 and representing (a) payments or other recoveries
of principal or (b) advances of scheduled principal payments made pursuant
to
Section 5.03.
“Attestation
Report”: The report as defined in Section 6.05 hereto.
“Back-Up
SOX Certificate”: The certification as defined in Section 12.02
hereto.
“Business
Day”: Any day other than (i) a Saturday or Sunday, or (ii) a day on which
banking or savings and loan institutions in the State of New York are authorized
or obligated by law or executive order to be closed.
“Compliance
Statement” The statement as defined in Section 6.04 hereto.
“Condemnation
Proceeds”: All awards or settlements in respect of a taking of an entire
Mortgaged Property by exercise of the power of eminent domain or
condemnation.
“Custodial
Account”: The separate account or accounts created and maintained pursuant to
Section 4.04.
“Custodial
Agreement”: The agreement for the retention of each Mortgage Note, Mortgage,
Assignment of Mortgage and other documents, which agreement is in the form
annexed hereto as Exhibit D.
“Custodian”:
The custodian under the Custodial Agree-ment, or its successor.
“Current
Index”: The index, as provided in each Mortgage Note, used to adjust the
Mortgage Interest Rate on each Interest Change Date.
“Curtailment”:
Any Principal Prepayment made by a Mortgagor that is not a Full Principal
Prepayment.
“Customary
Servicing Procedures”: Procedures (includ-ing collection procedures) using the
same care that the Seller customarily employs and exercises in servicing and
administering mortgage loans for its own account and those of third-party
investors giving due consideration to accepted ▇▇▇▇-▇▇▇▇ servicing
practices.
“Cut-off
Date”: The first day of the month in which the respective Funding Date
occurs.
“Deleted
Mortgage Loan”: A Mortgage Loan replaced or to be replaced with a Qualified
Substitute Mortgage Loan in accordance with this Agreement.
“Depositor”:
With respect to any Pass-Through Transfer, the “depositor, if any, specified by
the Purchaser and identified in related transaction documents.
-3-
Exhibit
10.10
“Determination
Date”: The 16th day (or if such 16th day is not a Business Day, the Business Day
immediately preceding such 16th day) of the month of the related Remittance
Date.
“Due
Date”: The day of the month on which each Monthly Payment is due on a Mortgage
Loan, exclusive of any days of grace.
“Due
Period”: With respect to each Remittance Date, the period beginning on the
second day of the month preceding the month of the Remittance Date, and ending
on the first day of the month of the Remittance Date.
“Eligible
Depository Institution”: An account or accounts maintained with a depository
institution which is acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac for establishment
of custodial accounts.
“Eligible
Investments”: Any one or more of the following obligations or
securities:
(i) obligations
of or guaranteed as to principal and interest by the (a) United States, the
Federal Home Loan Mortgage Corporation (“▇▇▇▇▇▇▇ Mac”), the Federal National
Mortgage Association (“▇▇▇▇▇▇ ▇▇▇”) or any agency or instrumentality of the
United States when such obligations are backed by the full faith and credit
of
the United States; provided, that such obligations of ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇
▇▇▇
shall be limited to senior debt obligations and mortgage participation
certificates except that investments in mortgage-backed or mortgage
participation securities with yields evidencing extreme sensitivity to the
rate
of principal payments on the underlying mortgages shall not constitute Eligible
Investments hereunder;
(ii) repurchase
agreements (which must be fully collateralized) on
obligations specified in clause (i) maturing not more than one month from the
date of acquisition thereof;
(iii) federal
funds, certificates of deposit, demand deposits, time deposits and bankers'
acceptances (which shall each have an original maturity of not more than 90
days
and, in the case of bankers' acceptances, shall in no event have an original
maturity of more than 365 days or a remaining maturity of more than 30 days)
denominated in United States dollars of any U.S. depository institution or
trust
company incorporated under the laws of the United States or any state thereof
or
of any domestic branch of a foreign depository institution or trust
company;
(iv) commercial
paper (having original maturities of not more than 365 days) of any corporation
incorporated under the laws of the United States or any state thereof which
are
rated at least A-1 or P-1 by S & P Corporation (“S & P”) and ▇▇▇▇▇’▇
Investor Services, Inc. (“Moody’s”), respectively;
(v) obligations
of major foreign commercial banks, limited to Eurodollar deposits, time
deposits, certificate of deposits, bankers acceptances, Yankee Bankers
acceptances and Yankee certificate of deposits;
-4-
Exhibit
10.10
(vi) obligations
of major foreign corporations limited to commercial paper, auction rate
preferred stock, medium term notes, master notes and loan
participations;
(vii) money
market funds comprised of securities described in the aforementioned clauses
(i-iv) and having a stated policy of maintaining a set net asset value per
share
(a “Money Market Fund”). All Money Market Funds will conform to Rule 2a-7 of the
Investment Seller Act of 1940;
provided,
however, that no instrument shall be an Eligible Investment if it represents,
either (1) the right to receive only interest payments with respect to the
underlying debt instrument or (2) the right to receive both principal and
interest payments derived from obligations underlying such instrument and the
principal and interest with respect to such instrument provide a yield to
maturity greater than 120% of the yield to maturity at par of such underlying
obligations.
“Escrow
Account”: The separate account or accounts created and maintained pursuant to
Section 4.06.
“Escrow
Payments”: The amounts constituting taxes, assessments, mortgage insurance
pre-miums, fire and hazard insurance premiums and other payments required to
be
escrowed by the Mortgagor with the mortgagee pursuant to any Mortgage Loan.
“Event
of
Default”: Any one of the conditions or circum-stances enumerated in Section
9.01.
“Exchange
Act: The Securities Exchange Act of 1934, as amended.
“▇▇▇▇▇▇
Mae”: The Federal National Mortgage Association or any successor
organization.
“Fidelity
Bond”: A fidelity bond required to be maintained by the Seller pursuant to
Section 4.13.
“FDIC”:
The Federal Deposit Insurance Corporation or any successor organization.
“▇▇▇▇▇▇▇
Mac”: The Federal Home Loan Mortgage Corporation or any successor organization.
“Full
Principal Prepayment”: A Principal Prepayment made by a Mortgagor of the entire
principal balance of a Mortgage Loan.
“Funding
Date”: Each date that the Purchaser purchases Mortgage Loans from the Seller
hereunder.
“Guarantor”:
Redwood Trust, Inc., a Maryland corporation.
“HUD”:
The
Department of Housing and Urban Development or any successor
organization.
-5-
Exhibit
10.10
“Insurance
Proceeds”: Proceeds of any Primary Insurance Policy, title policy, hazard policy
or other insurance policy covering a Mortgage Loan, if any, to the extent such
proceeds are not to be applied to the restoration of the related Mortgaged
Property or released to the Mortgagor in accordance with Customary Servicing
Procedures or in accordance with the terms of the related Mortgage Loan or
applicable law.
“Interest
Rate Change Date”: The date on which the Mortgage Interest Rate is subject to
change as provided in the related Mortgage Note.
“Lifetime
Mortgage Interest Rate Cap”: The maximum amount, as provided in the Mortgage
Note, that a Mortgage Interest Rate can change over the life of the Mortgage
Loan.
“Liquidation
Proceeds”: Cash, other than Insurance Proceeds, Condemnation Proceeds or REO
Disposi-tion Proceeds, received in connection with the liquidation of a
defaulted Mortgage Loan, whether through the sale or assignment of the Mortgage
Loan, trustee's sale, fore-closure sale or other-wise.
“Loan-to-Value
Ratio” or “LTV”: With respect to any Mortgage Loan, the original principal
balance of such Mortgage Loan divided by the Appraised Value of the related
Mortgaged Property.
“Margin”:
The amount that is added to the Current Index value to determine the Mortgage
Interest Rate on each Interest Rate Change Date.
“Master
Servicer”: With respect to a Pass-Through Transfer, the “master servicer”, if
any, identified by the Purchaser and identified in related transaction
documents.
“MERS”:
Mortgage Electronic Registration Systems, Inc., a corporation organized and
existing under the laws of the State of Delaware, or any successor
thereto.
“MERS®
System”: The system of recording transfers of Mortgages electronically
maintained by MERS.
“Monthly
Payment”: The scheduled monthly payment of principal and interest on a Mortgage
Loan which is payable by a Mortgagor under the related Mortgage Note.
“Mortgage”:
The mortgage, deed of trust or other instru-ment creating a first lien on or
first priority ownership inter-est in an estate in fee simple, or a leasehold
estate, in real property securing a Mortgage Note, including any rider
incorporated by reference therein.
“Mortgage
File”: The documents, records and other items referred to in Exhibit A annexed
hereto pertaining to a particular Mortgage Loan.
“Mortgage
Interest Rate”: The annual rate at which interest accrues at the time of
determination on any Mortgage Loan in accordance with the provisions of the
related Mortgage Note.
-6-
Exhibit
10.10
“Mortgage
Loan”: An individual mortgage loan that is the subject of this Agreement, each
mortgage loan originally sold and subject to this Agreement being identified
on
the Mortgage Loan Schedule.
“Mortgage
Loan Remittance Rate”: As to each Mortgage Loan, the annual rate of interest
required to be remitted hereun-der to the Purchaser, which shall be equal to
the
related Mortgage Interest Rate minus the related Servicing Fee
Rate.
“Mortgage
Loan Schedule”: The schedule of Mortgage attached hereto as Exhibit E, such
schedule setting forth the following information as to each Mortgage Loan,
as
applicable: (a) the Mortgage Loan identifying number, (b) state and zip code
of
the Mortgaged Property, (c) the Mortgage Interest Rate, (d) the original
principal balance of the Mortgage Loan, (e) principal balance of the Mortgage
Loan as of the Cut-off Date after deduction of payments of principal due on
or
before the Cut-off Date, whether or not collected, (f) the first payment date,
(g) a code indicating whether the Mortgaged Property is occupied by the owner
(and, if so, whether it is occupied as a primary, secondary or vacation
residence), and (h) the purpose of the Mortgage Loan.
“Mortgage
Note”: The note or other evidence of the indebtedness of a Mortgagor secured by
the related Mortgage.
“Mortgaged
Property”: The real property and improvements subject to a Mortgage,
constituting security for repayment of the debt evidenced by the related
Mortgage Note.
“Mortgagor”:
The obligor on a Mortgage Note.
“Nonrecoverable
Advance”: Any advance previously made by the Seller pursuant to Section 5.03 or
Section 5.04 or any expenses incurred pursuant to Section 4.08 which, in the
good faith judgement of the Seller, may not be ultimately recoverable by the
Seller from Liquidation Proceeds. The determination by the Seller that is has
made a Nonrecoverable Advance, shall be evidenced by an Officer’s Certificate of
the Seller delivered to the Purchaser and detailing the reasons for such
determination.
“Officers'
Certificate”: A certificate signed by the President, a Senior Vice President or
a Vice President and by the Treasurer or the Secre-tary or one of the Assistant
Secretaries of the Seller, or by other duly authorized officers or agents of
the
Seller, and delivered to the Purchaser as required by this
Agreement.
“Opinion
of Counsel”: A written opinion of counsel, who may be salaried counsel employed
by the Seller.
“P&I
Advance”: As to any Mortgage Loan, any advance made by the Seller pursuant to
Section 5.03.
“Pass-Through
Transfer”: The sale or transfer of some or all of the Mortgage Loans by the
Purchaser to a trust to be formed as part of a publicly issued or privately
placed mortgage-backed securities transaction.
-7-
Exhibit
10.10
“Person”:
Any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincor-porated organization or government or any
agency or political subdivision thereof.
“Prepayment
Interest Shortfall”: As to any Remittance Date and any Mortgage Loan, (a) if
such Mortgage Loan was the subject of a Full Principal Prepayment during the
related Principal Prepayment Period, the excess of one month’s interest
(adjusted to the Mortgage Loan Remittance Rate) on the Assumed Principal Balance
of such Mortgage Loan outstanding immediately prior to such prepayment, over
the
amount of interest (adjusted to the Mortgage Loan Remittance Rate) actually
paid
by the Mortgagor in respect of such Principal Prepayment Period, and (b) if
such
Mortgage Loan was the subject of a Curtailment during the related Principal
Prepayment Period, an amount equal to one month’s interest at the Mortgage Loan
Remittance Rate on the amount of such Curtailment.
“Primary
Insurance Policy”: With respect to each Mortgage Loan, the primary policy of
mortgage insurance in effect, or any replacement policy therefor obtained by
the
Seller pursuant to Section 4.08.
“Principal
Prepayment”: Any payment or other recovery of principal on a Mortgage Loan which
is received in advance of its scheduled Due Date, including any prepayment
penalty or premium thereon, and is not accompanied by an amount of interest
repre-sent-ing scheduled interest due on any date or dates in any month or
months subsequent to the month of prepayment.
“Principal
Prepayment Period”: As to any Remittance Date, the calendar month preceding the
calendar month in which such Remittance Date occurs.
“Purchase
Price”: As to each Mortgage Loan to be sold hereunder, the price set forth in
the Mortgage Loan Schedule and the related Purchase Price and Terms
Letter.
“Purchase
Price and Terms Letter”: With respect to any pool of Mortgage Loans purchased
and sold on any Funding Date, the letter agreement between the Purchaser and
the
Seller (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 Funding Date. A Purchase Price
and Terms Letter may relate to more than one pool of Mortgage Loans to be
purchased on one or more Funding Dates hereunder.
“Purchase
Price Percentage”: As to each Mortgage Loan to be sold hereunder, the percentage
of the principal balance thereof being paid as part of the Purchase Price,
as
set forth in the Mortgage Loan Schedule and the related Purchase Price and
Terms
Letter.
“Purchaser”:
RWT Holdings, Inc., a Delaware corporation.
“Qualified
Substitute Mortgage Loan”: A mortgage loan substituted by the Seller for a
Deleted Mortgage Loan which must, on the date of such substitution, (i) have
a
principal balance at the time of substitution not in excess of the principal
balance of the Deleted Mortgage Loan (the amount of any difference being deemed
to be a principal payment to be credited to or deposited by the Seller in the
Custodial Account), (ii) have a Mortgage Interest Rate not less than and not
more than 1% greater than that of the Deleted Mortgage Loan, (iii) have a
remaining maturity not later than and not more than one year less than the
remaining maturity of the Deleted Mortgage Loan, (iv)
have
a Lifetime Mortgage Interest Rate Cap not less than that of the Deleted Mortgage
Loan and not more than two (2) percentage points above that of the Deleted
Mortgage Loan, (v) have a Margin not less than that of the Deleted Mortgage
Loan, (vi) have a Loan-to-Value Ratio at the time of substitution equal to
or
less than the Loan-to-Value Ratio of the Deleted Mortgage Loan at the time
of
substitution, (vii) Mortgage Loan, (viii) have the same Current Index as the
Deleted Mortgage Loan, (ix) comply as of the date of substitution with each
representation and warranty set forth in Section 3.02, (x) be in the same credit
grade category as the Deleted Mortgage Loan, (xi) have the same prepayment
penalty term, if any, and
(xii)
be, in the reasonable determination of the Seller, of the same type, quality
and
character as the Deleted Mortgage Loan as if the breach had not
occurred.
-8-
Exhibit
10.10
“Reconstitution
Agreement”: The agreement or agreements entered into by the Seller and the
Purchaser and certain third parties on the Reconstitution Date or Dates with
respect to any or all of the Mortgage Loans serviced hereunder, in connection
with a Whole Loan Transfer or a Pass-Through Transfer as provided in Section
12.01.
“Reconstitution
Date”: The date or dates on which any or all of the Mortgage Loans serviced
under this Agreement shall be removed from this Agreement and reconstituted
as
part of a Whole Loan Transfer or Pass-Through Transfer pursuant to Section
12.01
hereof. On such date, the Mortgage Loans transferred shall cease to be covered
by this Agreement and the Seller shall cease to service such Mortgage Loans
under this Agreement.
“Record
Date”: The close of business of the last Busi-ness Day of the month preceding
the month of the related Remit-tance Date.
“Refinanced
Mortgage Loan”: A Mortgage Loan that was made to a Mortgagor who owned the
Mortgaged Property prior to the origination of such Mortgage Loan.
“Regulation
AB”: Subpart 229.1100—Asset-Backed Securities (Regulation AB), 17 C.F.R.
Sections 229.1100-1123, as such may be amended from time to time, and subject
to
such clarification and interpretation as have been provided by the SEC in the
adopting release (Asset-Backed Securities, Securities Act Release No. 22-8518,
70 Fed. Reg. 1,506, 1,531 (Jan.7, 2005) or by the staff of the SEC. or as may
be
provided by the SCE or its staff from time to time.
“Remittance
Date”: The 18th day of any month, or if such 18th day is not a Busi-ness Day,
the first Business Day immediately prior thereto.
“REO
Disposition”: The final sale by the Seller of a Mortgaged Property acquired by
the Seller in foreclosure or by deed in lieu of foreclosure.
“REO
Disposition Proceeds”: All amounts received with respect to an REO Disposition
pursuant to Section 4.14.
“REO
Property”: A Mortgaged Property acquired by the Seller through foreclosure or
deed in lieu of foreclosure, as described in Section 4.14.
-9-
Exhibit
10.10
“Repurchase
Price”: With respect to any Mortgage Loan to be repurchased by the Seller
pursuant to Section 3.03, an amount equal to the Assumed Principal Balance
of
such Mortgage Loan as of the date of such repurchase, plus interest on such
Assumed Principal Balance at the Mortgage Loan Remittance Rate from the date
to
which interest has last been paid to the day prior to the day of the
repurchase.
“SEC”:
The United States Securities and Exchange Commission.
“Seller”:
GreenPoint Mortgage Funding, Inc., a New York corporation, or its successor
in
interest or any successor to the Seller under this Agreement appointed as herein
provided.
“Servicing
Advances”: All customary, reasonable and necessary “out of pocket” costs and
expenses incurred in the performance by the Seller of its servicing obligations,
includ-ing, but not limited to, the cost of (a) the preservation, restoration
and protection of the Mortgaged Property, (b) any enforcement or judicial
proceedings, including foreclosures, (c) the management and liquidation of
REO
Property pursuant to Section 4.14 and (d) compliance with the Seller's
obligations described in Section 4.08.
“Servicing
Fee”: The amount of the annual fee the Purchaser shall pay to the Seller, equal
to 0. 250% of the outstanding principal amount of each Mortgage Loan with
respect to the period of time prior to the initial Interest Rate Change Date
and, thereafter, 0.375% of the outstanding principal amount for that Mortgage
Loan. Such fee shall be payable monthly and shall be computed on the basis
of
the same principal amount and for the period respecting which any related
interest payment on a Mortgage Loan is computed.
“Servicing
Officer”: Any officer of the Seller involved in, or responsible for, the
administration and servicing of the Mortgage Loans whose name appears on a
list
of servicing officers furnished by the Seller to the Purchaser upon request,
as
such list may from time to time be amended.
“Trust”:
With respect to a Pass-Through Transfer, the “trust”, if any, specified by the
Purchaser and identified in the related transaction documents.
“Whole
Loan Transfer”: Any sale or transfer of all of the Mortgage Loans by the
Purchaser to a third party.
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS; POSSESSION OF MORTGAGE FILES;
BOOKS
AND RECORDS; CUSTODIAL AGREEMENT;
DELIVERY
OF MORTGAGE LOAN DOCUMENTS
Section
2.01 Conveyance
of Mortgage Loans; Possession of Mortgage Files.
The
Seller agrees to sell and the Purchaser agrees to purchase, from time to time,
those certain Mortgage Loans identified in a Mortgage Loan Schedule, at the
price and on the terms set forth herein and in the related Purchase Price and
Terms Letter. The Purchaser, on any Funding Date, shall be obligated to purchase
only such Mortgage Loans set forth in the applicable Mortgage Loan Schedule,
subject to the terms and conditions of this Agreement and the related Purchase
Price and Terms Letter.
-10-
Exhibit
10.10
The
Purchaser will purchase Mortgage Loan(s) from the Seller, on such Funding Dates
as may be agreed upon by the Purchaser and the Seller. Each closing shall,
at
the Purchaser’s option be either: by telephone, confirmed by letter or wire as
the parties shall agree; or conducted in person at such place, as the parties
shall agree. On the Funding Date and subject to the terms and conditions of
this
Agreement, the Seller will sell, transfer, assign, set over and convey to the
Purchaser, without recourse except as set forth in this Agreement, and the
Purchaser will purchase, all of the right, title and interest of the Seller
in
and to the Mortgage Loans being conveyed by it hereunder, as identified on
the
Mortgage Loan Schedule.
On
the
Funding Date and in accordance with the terms herein, the Purchaser will pay
to
the Seller, by wire transfer of immediately available funds, the Purchase Price,
according to the instructions to be provided by the Seller. The Seller,
simultaneously with the payment of the Purchase Price, shall execute and deliver
to the Purchaser a Warranty ▇▇▇▇ of Sale with respect to the Mortgage Loans
in
the form annexed hereto as Exhibit H.
The
Purchaser shall be entitled to all scheduled principal due after the Cut-off
Date, all other recoveries of principal collected after the Cut-off Date and
all
payments of interest on the Mortgage Loans (minus that portion of any such
payment which is allocable to the period prior to the Cut-off Date). The
principal balance of each Mortgage Loan as of the Cut-off Date is determined
after application of payments of principal due on or before the Cut-off Date
whether or not collected. Therefore, payments of scheduled principal and
interest prepaid for a due date beyond the Cut-off Date shall not be applied
to
the principal balance as of the Cut-off Date. Such prepaid amounts shall be
the
property of the Purchaser. The Seller shall hold any such prepaid amounts for
the benefit of the Purchaser for subsequent remittance by the Seller to the
Purchaser. All scheduled payments of principal due on or before the Cut-off
Date
and collected by the Seller after the Cut-off Date shall belong to the
Seller.
Pursuant
to Section 2.03 hereof, the Seller shall have delivered a portion of each
Mortgage File to the Custodian prior to the Funding Date. 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 and the
Seller's possession of the portion of each Mortgage File so retained is at
the
will of the Purchaser for the sole purpose of servicing the related Mortgage
Loan, and such retention and possession by the Seller is in a custodial capacity
only. On the Funding Date, the ownership of each Mortgage Note, Mortgage and
each related Mortgage File is vested in the Purchaser and the ownership of
all
records and documents with respect to each related Mortgage Loan prepared by
or
which come into the possession of the Seller shall immediately vest in the
Purchaser and shall be retained and main-tained, in trust, by the Seller at
the
will of the Purchaser in such custodial capacity only. The Mortgage File may
be
retained in microfilm, microfiche, optical storage or magnetic media in lieu
of
hard copy. The Seller shall maintain records (i) confirming the sale of the
related Mortgage Loan to the Purchaser and (ii) confirming the Purchaser's
ownership interest in the Mortgage File. The Seller shall release from its
custody the contents of any Mortgage 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 or the removal of any Mortgage Loan or related
REO Property from the terms of this Agreement pursuant to Section 3.03, in
which
cases such written instructions shall not be required.
-11-
Exhibit
10.10
Section
2.02 Books
and Records.
Notwithstanding
the sale of the Mortgage Loans to the Purchaser, record title to each Mortgage
and the related Mortgage Note shall continue in the name of the Seller and
be
retained by the Seller in trust for the Purchaser for the sole purpose of
facilitating the servicing and the supervision of the servic-ing of the Mortgage
Loans. All rights arising out of the ▇▇▇▇-▇▇▇▇ Loans including, but not limited
to, all funds received on or in connection with a Mortgage Loan shall be held
by
the Seller in trust for the benefit of the Purchaser as the owner of the
Mortgage Loans, subject to subsequent deduction of amounts to which the Seller
is entitled pursuant to the terms of this Agreement.
The
sale
of each Mortgage Loan shall be reflected on the Seller's balance sheet and
other
financial statements as a sale of assets by the Seller. The Seller shall be
responsible for maintaining, and shall maintain, a complete set of books and
records for each Mortgage Loan which shall be clearly marked to reflect the
ownership of each Mortgage Loan by the Purchaser.
Section
2.03 Custodial
Agreement; Delivery of Mortgage Loan Documents.
Pursuant
to the Custodial Agreement, on or prior to each Funding Date, the Seller shall
deliver to the Custodian each of the following documents for each Mortgage
Loan:
(a) The
original Mortgage Note endorsed, “Pay to the order of ______________________,
without recourse” and signed in the name of the Seller by an authorized officer.
Such signature may be an original signature or a facsimile signature of such
officer. If the Mortgage Loan was acquired by the Seller in a merger, the
endorsement must be by “GreenPoint Mortgage Funding, Inc., successor by merger
to [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 “GreenPoint Mortgage Funding, Inc., formerly known as [previous name]”. The
Mortgage Note shall include all intervening endorsements showing a complete
chain of title from the originator to the Seller.
(b) The
original Mortgage, or a copy of the Mortgage with evidence of recording thereon
certified by the appropriate recording office to be a true copy of the recorded
Mortgage, or, if the original Mortgage has not yet been returned from the
recording office, a copy of the original Mortgage together with a certificate
of
a duly authorized representative of the Seller (which certificate may consist
of
stamped text appearing on such copy of the Mortgage), the closing attorney
or an
officer of the title insurer which issued the related title insurance policy,
certifying that the copy is a true copy of the original of the Mortgage which
has been transmitted for recording in the appropriate recording office of the
jurisdiction in which the Mortgaged Property is located.
-12-
Exhibit
10.10
(c) Unless
the Mortgage Loan is registered on the MERS System, the original Assignment
of
Mortgage, assigned to ______________________, but otherwise in form and
substance acceptable for recording and sent for recording; provided, however,
that certain recording information will not be available if, as of the Funding
Date, the Seller has not received the related Mortgage from the appropriate
recording office. If the Mortgage Loan was acquired by the Seller in a merger,
the assignment must be by “GreenPoint Mortgage Funding, Inc., successor by
merger to [name of predecessor]”; and if the Mortgage Loan was acquired or
originated by the Seller while doing business under another name, the assignment
must be by “GreenPoint Mortgage Funding, Inc., formerly known as [previous
name]”.
(d) Originals
or certified true copies from the appropriate recording offices of all
assumption and modification agree-ments, if any or if the original has not
yet
been returned from the recording office, a copy of such original certified
by
the Seller.
(e) Originals,
or certified true copies from the appropriate recording offices, of any
intervening assignments of the ▇▇▇▇-▇▇▇▇ with evidence of recording thereon,
or,
if the original intervening assignment has not yet been returned from the
recording office, a certified copy of such assignment.
The
Custodian has certified its receipt of each such document as evidenced by its
Initial Certification in the form annexed to the Custodial
Agreement.
Section
2.04 Conditions
Precedent to Closing.
Each
purchase of Mortgage Loans hereunder shall be subject to each of the following
conditions:
(a) All
of
the representations and warranties of the Seller and of the Purchaser under
this
Agreement shall be true and correct as of the Funding Date, and no event shall
have occurred which, with notice or the passage of time, would constitute an
Event of Default under this Agreement;
(b) The
Purchaser shall have received, or the Purchaser’s attorneys shall have received
in escrow, all documents as specified herein, in such forms as are agreed upon
and acceptable to the Purchaser, duly executed by all signatories other than
the
Purchaser as required pursuant to the respective terms thereof;
(c) All
other
terms and conditions of this Agreement shall have been complied
with.
Subject
to the foregoing conditions, the Purchaser shall pay to the Seller on each
Funding Date the applicable Purchase Price as provided herein.
Section
2.05 First
Payment Default; Early Full Principal Prepayment.
-13-
Exhibit
10.10
In
the
event any Mortgage Loan purchased hereunder goes into default because the first
Monthly Payment due thereon becomes delinquent and remains delinquent for a
period of 30 days, the Seller will repurchase such Mortgage Loan at the Purchase
Price or substitute in its place a Qualified Substitute Mortgage Loan or Loans
pursuant to the provisions of Section 3.03.
In
the
event any Mortgage Loan purchased hereunder becomes the subject of a Full
Principal Prepayment within 90 days after the related Funding Date, the Seller
will remit to the Purchaser no later than the last Business Day of the month
following the month in which such Full Principal Prepayment occurred, an amount
equal to (a) the difference between the Purchase Price Percentage for such
Mortgage Loan and 100%, times (b) the principal balance of such Mortgage Loan
on
the date of the Full Principal Prepayment.
In
the
event that a mortgage loan, acquired by the Purchaser for a Purchase Price
greater than 101.00%, pays off within the first 12 months from the Funding
Date,
the Seller shall reimburse the Purchaser the full premium paid for the
loan.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF THE SELLER;
REPURCHASE
AND SUBSTITUTION;
REVIEW
OF MORTGAGE LOANS
Section
3.01 Representations
and Warranties of the Seller.
The
Seller represents, warrants and covenants to the Purchaser, as of the Funding
Date or as of such other date specified below, that:
(i) The
Seller is a validly existing corporation in good standing under the laws of
the
State of New York and is qualified to transact business in, is in good standing
under the laws of, and possesses all licenses necessary for the conduct of
its
business in, each state in which any Mortgaged Property is located or is
otherwise exempt or not required under applicable law to effect such
qualification or license and no demand for such qualification or license has
been made upon the Seller by any such state, and in any event the Seller is
in
compliance with the laws of each such State to the extent necessary to ensure
the enforceability of each Mortgage Loan;
(ii) The
Seller has full power and authority to hold each Mortgage Loan, to sell each
Mortgage Loan pursuant to this Agreement and to execute, deliver and perform,
and to enter into and consummate all transactions contemplated by this Agreement
and to conduct its business as presently conducted, has duly authorized the
execution, delivery and performance of this Agreement, has duly executed and
delivered this Agreement and each Assignment of Mortgage to the Purchaser
constitutes a legal, valid and binding obligation of the Seller, enforceable
against it in accordance with its terms subject to bankruptcy laws and other
similar laws of general application affecting rights of creditors and subject
to
the application of the rules of equity, including those respecting the
availability of specific performance;
(iii) None
of
the execution and delivery of this Agreement, the origination of the Mortgage
Loans by the Seller, the sale of the Mortgage Loans to the Purchaser, the
consummation of the transactions contemplated hereby, or the fulfillment of
or
compliance with the terms and conditions of this Agreement will conflict with
any of the terms, conditions or provisions of the Seller's articles of
incorporation or by-laws or materially conflict with or result in a material
breach of any of the terms, conditions or provisions of any legal restriction
or
any agreement or instrument to which the Seller is now a party or by which
it is
bound, or constitute a default or result in an acceleration under any of the
foregoing, or result in the material violation of any law, rule, regulation,
order, judgment or decree to which the Seller or its property is
subject;
-14-
Exhibit
10.10
(iv) There
is
no litigation pending or to the best of Seller’s knowledge threatened with
respect to the Seller which is reasonably likely to have a material adverse
effect on the sale of the related Mortgage Loans, the execution, delivery or
enforceability of this Agreement, or which is reasonably likely to have a
material adverse effect on the financial condition of the Seller;
(v) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Seller
of or
compliance by the Seller with this Agreement, the sale of the Mortgage Loans
or
the consummation of the transactions contemplated by this Agreement except
for
consents, approvals, authorizations and orders which have been
obtained;
(vi) The
consummation of the transactions contemplated by this Agreement is in the
ordinary course of business of the Seller, and the transfer, assignment and
conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to
this Agreement are not subject to bulk transfer or any similar statutory
provisions in effect in any applicable jurisdiction;
(vii) Neither
this Agreement nor any statement, report or other agreement, document or
instrument furnished or to be furnished by the Seller pursuant to this Agreement
contains or will contain any materially untrue statement of facts or omits
or
will omit to state a fact necessary to make the statements contained therein
not
misleading; and
Section
3.02 Representations
and Warranties as to Individual Mortgage Loans.
The
Seller hereby represents and warrants to the Purchaser, as to each Mortgage
Loan
as of the Funding Date or such other date as may be specified below,
that:
(i) The
information set forth in the Mortgage Loan Schedule is true, complete and
correct in all material respects as of the Cut-Off Date;
(ii) The
Mortgage creates a first lien on or a first priority ownership interest in
real
property securing the related Mortgage Note, free and clear of all adverse
claims, liens and encumbrances having priority over the first lien of the
Mortgage subject only to (1) the lien of non-delinquent current real property
taxes and assessments not yet due and payable, (2) covenants, conditions and
restrictions, rights of way, easements and other matters of public record as
of
the date of recording which are acceptable to mortgage lending institutions
generally and, with respect to any Mortgage Loan for which an appraisal was
made
prior to the Cut-Off Date, either (A) which are referred to or otherwise
considered in the appraisal made for the originator of the Mortgage Loan, or
(B)
which do not adversely affect the appraised value of the Mortgaged Property
as
set forth in such appraisal, 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. If the Mortgaged Property
includes a leasehold estate, the lease is valid, in full force and affect,
and
conforms to the ▇▇▇▇▇▇ Mae requirements for leasehold estates. Any security
agreement, chattel mortgage or equivalent document related to and delivered
in
connection with the Mortgage Loan establishes and creates a valid, subsisting
and enforceable first lien and first priority security interest on the property
described therein;
-15-
Exhibit
10.10
(iii) The
Mortgage Loan has not been delinquent thirty (30) days or more at any time
during the twelve (12) month period prior to the Cut-off Date for such Mortgage
Loan. There are no defaults under the terms of the Mortgage Loan; and the Seller
has not advanced funds, or induced, solicited or knowingly received any advance
of funds from a party other than the owner of the Mortgaged Property subject
to
the Mortgage, directly or indirectly, for the payment of any amount required
by
the Mortgage Loan;
(iv) There
are
no delinquent taxes which are due and payable, ground rents, assessments or
other outstanding charges affecting the related Mortgaged Property;
(v) The
terms
of the Mortgage Note of the related Mortgagor and the Mortgage have not been
impaired, waived, altered or modified in any respect, except by written
instruments which have been recorded to the extent any such recordation is
required by applicable law or is necessary to protect the interests of the
Purchaser, and which have been approved by the title insurer and the primary
mortgage insurer, as applicable, and copies of which written instruments are
included in the Mortgage File. No other instrument of waiver, alteration or
modification has been executed, and no Mortgagor has been released, in whole
or
in part, from the terms thereof except in connection with an assumption
agreement, which assumption agreement is part of the Mortgage File and the
terms
of which are reflected on the Mortgage Loan Schedule;
(vi) 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 Mortgage
unenforceable, in whole or in part, or subject to any right of rescission,
set-off, counterclaim or defense, including the defense of usury, and no such
right of rescission, set-off, counterclaim or defense has been asserted with
respect thereto;
(vii) All
buildings upon the Mortgaged Property are insured by a generally acceptable
insurer pursuant to standard hazard policies conforming to the requirements
of
▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac. All such standard hazard policies are in effect
and
on the date of origination contained a standard mortgagee clause naming the
Seller and its successors in interest as loss payee and such clause is still
in
effect and all premiums due thereon have been paid. If the Mortgaged Property
is
located in an area identified by the Federal Emergency Management Agency as
having special flood hazards under the Flood Disaster Protection Act of 1973,
as
amended, such Mortgaged Property is covered by flood insurance by a generally
acceptable insurer in an amount not less than 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 the Mortgagor's cost and expense and to seek reimbursement therefor
from the Mortgagor;
-16-
Exhibit
10.10
(viii) Any
and
all requirements of any federal, state or local law including, without
limitation, usury, truth-in-lending, real estate settlement procedures, consumer
credit protection, equal credit opportunity or disclosure laws applicable to
the
Mortgage Loan have been complied with in all material respects;
(ix) The
Mortgage has not been satisfied, canceled or subordinated, in whole or in part,
or rescinded, and the Mortgaged Property has not been released from the lien
of
the Mortgage, in whole or in part nor has any instrument been executed that
would effect any such satisfaction, release, cancellation, subordination or
rescission;
(x) The
Mortgage Note and the related Mortgage are original and genuine and each is
the
legal, valid and binding obligation of the maker thereof, enforceable in all
respects in accordance with its terms subject to bankruptcy, insolvency and
other laws of general application affecting the rights of creditors, and the
Seller has taken all action necessary to transfer such rights of enforceability
to the Purchaser. All parties to the Mortgage Note and the Mortgage had the
legal capacity to enter into the Mortgage Loan and to execute and deliver the
Mortgage Note and the Mortgage. The Mortgage Note and the Mortgage have been
duly and properly executed by such parties. The proceeds of the Mortgage Note
have been fully disbursed and there is no requirement for future advances
thereunder, and any and all requirements as to completion of any on-site or
off-site improvements and as to disbursements of any escrow funds therefor
have
been complied with;
(xi) Immediately
prior to the transfer and assignment to the Purchaser, the Mortgage Note and
the
Mortgage were not subject to an assignment or pledge, and the Seller had good
and marketable title to and was the sole owner thereof and had full right to
transfer and sell the Mortgage Loan to the Purchaser free and clear of any
encumbrance, equity, lien, pledge, charge, claim or security
interest;
(xii) The
Mortgage Loan is covered by an ALTA lender's title insurance policy or other
generally acceptable form of policy of insurance, with all necessary
endorsements, issued by a title insurer qualified to do business in the
jurisdiction where the Mortgaged Property is located, insuring (subject to
the
exceptions contained in clause (b) (1), (2) and (3) 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. Such title insurance policy
affirmatively insures ingress and egress and against encroachments by or upon
the Mortgaged Property or any interest therein. The Seller is the sole insured
of such lender's title insurance policy, such title insurance policy has been
duly and validly endorsed to the Purchaser or the assignment to the Purchaser
of
the Seller's interest therein does not require the consent of or notification
to
the insurer and such lender's title insurance policy is in full force and effect
and will be in full force and effect upon the consummation of the transactions
contemplated by this Agreement. No claims have been made under such lender's
title insurance policy, and no prior holder of the related Mortgage has done,
by
act or omission, anything which would impair the coverage of such lender's
title
insurance policy;
(xiii) There
is
no default, breach, violation or event of acceleration existing under the
Mortgage or the related Mortgage Note and, to the Seller’s knowledge, no event
which, with the passage of time or with notice and the expiration of any grace
or cure period, would constitute a default, breach, violation or event
permitting acceleration; and neither the Seller nor any prior mortgagee has
waived any default, breach, violation or event permitting
acceleration;
-17-
Exhibit
10.10
(xiv) To
the
best of the Seller’s knowledge, there are no mechanics, or similar liens or
claims which have been filed for work, labor or material affecting the related
Mortgaged Property which are or may be liens prior to or equal to the lien
of
the related Mortgage;
(xv) All
improvements subject to the Mortgage lie wholly within the boundaries and
building restriction lines of the Mortgaged Property (and wholly within the
project with respect to a condominium unit) and no improvements on adjoining
properties encroach upon the Mortgaged Property except those which are insured
against by the title insurance policy referred to in clause (xii) above and
all
improvements on the property comply with all applicable zoning and subdivision
laws and ordinances;
(xvi) The
Mortgage Loan was originated by the Seller or by an eligible correspondent
of
the Seller. The Mortgage Loan complies in all material respects with all the
terms, conditions and requirements of the Seller's underwriting standards
attached here as Exhibit G. The Mortgage Notes and Mortgages are on forms
acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac;
(xvii) The
Mortgage Loan contains the usual and enforceable provisions of the originator
at
the time of origination for the acceleration of the payment of the unpaid
principal amount if the related Mortgaged Property is sold without the prior
consent of the mortgagee thereunder. The Mortgage Loan has an original term
to
maturity of not more than 40 years, with interest payable in arrears on the
first day of each month. Except as otherwise set forth on the Mortgage Loan
Schedule, the Mortgage Loan does not contain terms or provisions which would
result in negative amortization nor contain “graduated payment”
features;
(xviii) The
Mortgaged Property at origination of the Mortgage Loan was and, to the Seller’s
knowledge, currently is free of damage and waste and at origination of the
Mortgage Loan there was, and, to the Seller’s knowledge, there currently is, no
proceeding pending for the total or partial condemnation thereof;
(xix) The
related Mortgage contains enforceable provisions such as to render the rights
and remedies of the holder thereof adequate for the realization against the
Mortgaged Property of the benefits of the security provided thereby, including,
(1) in the case of a Mortgage designated as a deed of trust, by trustee's sale,
and (2) otherwise by judicial foreclosure;
(xx) If
the
Mortgage constitutes a deed of trust, a trustee, duly qualified if required
under applicable law to act as such, has been properly designated and currently
so serves and is named in the Mortgage, and no fees or expenses are or will
become payable by the Purchaser to the trustee under the deed of trust, except
in connection with a trustees sale or attempted sale after default by the
Mortgagor;
(xxi) If
required by the applicable processing style, the Mortgage File contains an
appraisal of the related Mortgaged Property made and signed prior to the final
approval of the mortgage loan application by a qualified appraiser satisfying
the requirements of Title XI of The Financial Institutions Reform, and
Enforcement Act of 1989, as amended, and the regulations promulgated thereunder,
that is acceptable to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac and approved by the Seller.
The
appraisal, if applicable, is in a form generally acceptable to ▇▇▇▇▇▇ Mae or
▇▇▇▇▇▇▇ Mac;
-18-
Exhibit
10.10
(xxii) All
parties which have had any interest in the Mortgage, whether as mortgagee,
assignee, pledgee or otherwise, are (or, during the period in which they held
and disposed of such interest, were) (A) in substantial compliance with any
and
all applicable licensing requirements of the laws of the state wherein the
Mortgaged Property is located, and (B) (1) organized under the laws of such
state, or (2) qualified to do business in such state, or (3) federal savings
and
loan associations, national banks, a Federal Home Loan Bank or the Federal
Reserve Bank, or (4) not doing business in such state;
(xxiii) To
the
best of the Seller’s knowledge, there does not exist any circumstances or
conditions with respect to the Mortgage, the Mortgaged Property, the Mortgagor
or the Mortgagor's credit standing that could reasonably be expected to cause
private institutional investors to regard the Mortgage Loan as an unacceptable
investment, to cause the Mortgage Loan to become delinquent, or to materially
adversely affect the value or marketability of the Mortgage Loan;
(xxiv) Each
of
the Mortgaged Properties consists of a single parcel of real property with
a
detached single-family residence erected thereon, or a two- to four-family
dwelling, or a townhouse, or an individual condominium unit in a condominium
project or an individual unit in a planned unit development. Any condominium
unit or planned unit development either conforms with applicable ▇▇▇▇▇▇ Mae
or
▇▇▇▇▇▇▇ Mac requirements regarding such dwellings or is covered by a waiver
confirming that such condominium unit or planned unit development is acceptable
to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac or is otherwise “warrantable” with respect thereto.
No such residence is a mobile home or manufactured dwelling.
(xxv) The
ratio
of the original outstanding principal amount of the Mortgage Loan to the lesser
of the appraised value (or stated value if an appraisal was not a requirement
of
the applicable processing style) of the Mortgaged Property at origination or
the
purchase price of the Mortgaged Property securing each Mortgage Loan (the
“Loan-to-Value Ratio”) is not in excess of 95.00%. The original Loan-to-Value
Ratio of each Mortgage Loan either was not more than 95.00% or the excess over
80.00% is insured as to payment defaults by a Primary Mortgage Insurance Policy
issued by a primary mortgage insurer acceptable to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇
Mac;
(xxvi) The
Seller is either, and each Mortgage Loan was originated by, a savings and loan
association, savings bank, commercial bank, credit union, insurance company
or
similar institution which is supervised and examined by a federal or State
authority, or by a mortgagee approved by the Secretary of Housing and Urban
Development pursuant to Section 203 and 211 of the National Housing
Act;
(xxvii) The
origination, collection and servicing practices with respect to each Mortgage
Note and Mortgage have been legal in all material respects. With respect to
escrow deposits and payments that the Seller collects, 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 other charges or
payments due under the Mortgage Note have been capitalized under any Mortgage
or
the related Mortgage Note; and
-19-
Exhibit
10.10
(xxviii) No
fraud
or misrepresentation of a material fact with respect to the origination of
a
Mortgage Loan has taken place on the part of the Seller.
(xxix) No
Mortgage Loan contains a provision whereby the related Mortgagor can convert
the
related Mortgage Loan to a fixed rate instrument.
Section
3.03 Repurchase
and Substitution.
The
representations and warranties set forth in Sections 3.01 and 3.02 shall survive
the sale of the Mortgage Loans and shall inure to the benefit of the Purchaser,
notwithstand-ing any restrictive or qualified endorsement on any Mortgage Note
or Assignment of Mortgage or the examination of any Mortgage File. Upon
discovery by either the Seller or an Purchaser of a breach of any of the
representations and warranties set forth in Sections 3.01 and 3.02
(notwithstanding the Seller’s lack of knowledge of such representation and
warranty), which breach materially and adversely affects the value of the
Mortgage Loans or the interest of the Purchaser (or which materially and
adversely affects the interest of the Purchaser in the related Mortgage Loan
in
the case of a repre-sentation and warranty relating to a particular Mortgage
Loan), the party discovering such breach shall give prompt written notice to
the
other. Within 90 days of the earlier of either discovery by or notice to the
Seller of any such breach, the Seller shall use its best efforts to promptly
cure such breach in all material respects and, if such breach cannot be cured
during such 90 day period, the Seller shall, at the Purchaser's option,
repurchase such Mortgage Loan at the Repurchase Price. If any such breach shall
involve any represent-ation or warranty set forth in Section 3.01, and such
breach cannot be cured within 90 days of the earlier of either discovery by
or
notice to the Seller of such breach, all the Mortgage Loans shall, at the
Purchaser's option, be repurchased by the Seller at the Repurchase Price;
provided, however, that in the event of a breach of representation and warranty
set forth in Section 3.01 that relates to less than all of the Mortgage Loans,
the Seller shall repurchase only the Mortgage Loans to which such breach
relates. However, the Seller may, at its option, replace a Mortgage Loan as
to
which a breach of representation of warranty has occurred as described in the
foregoing sentences of this Section 3.03 and substi-tute in its place with
a
Qualified Substitute Mortgage Loan or Loans, provided, however, that any such
substitution shall be effected not later than 120 days after the Funding Date.
Any repurchase of a Mortgage Loan or Loans pursuant to the foregoing provisions
of this Section 3.03 shall be accomplished by deposit in the Custodial Account
of the amount of the Repurchase Price (after deducting therefrom any amounts
received in respect of such repurchased Mortgage Loan or Loans and being held
in
the Custodi-al Account for future distribution).
The
Seller shall effect any substitution of a Qualified Substitute Mortgage Loan
by
delivering to the Custodian the documents as are required to be delivered by
Section 2.03, with the Mortgage Note endorsed as required by Section 2.03.
No
substitution will be made in any calendar month after the Determination Date
occurring in such month. 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
Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan
from
the terms of this Agreement and the substitu-tion 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 substitu-tion, the
covenants, representations and warranties set forth in Sections 3.01 and 3.02,
except to the extent a representation contained in Section 3.02 relates to
an
expressly specified percentage of the Mortgage Loans.
-20-
Exhibit
10.10
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 (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 Assumed Principal Balance of all such Deleted Mortgage Loans (after
application of scheduled principal payments due in the month of substitution).
The amount of such shortfall shall be distributed by the Seller in the month
of
substitution pursuant to Section 5.01. Accordingly, on the date of such
substitution, the Seller will deposit from its own funds into the Custodial
Account an amount equal to the amount of such shortfall.
Indemnification.
In
addition to its repurchase and substitution obligations, Seller shall indemnify
Purchaser and hold it harmless against any losses, damages, penalties, fines,
forfeitutes, 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 Seller’s
representations and warranties contained in Sections 3.01 and 3.02 that
materially and adversely affects the value of one or more of the Mortgage Loans.
The obligations of Seller set forth in this Section 3.03 to cure, substitute
for
or repurchase a defective Mortgage Loan and to indemnify Purchaser as provided
in this Section 3.03 constitute the sole remedies of Purchaser with respect
to a
breach of the foregoing representations and warranties.
ARTICLE
IV
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
Section
4.01 Seller
to Act as Servicer.
The
Seller, as independent contract servicer, shall service and administer the
Mortgage Loans for the benefit of the Purchaser in accordance with the terms
of
this Agreement and in conformity with Customary Servicing Procedures. In
performing its obligations hereunder, the Seller shall exercise no less than
the
same care that it customarily employs and exercises in servicing and
administering mortgage loans for its own account, but shall perform such
obligations without regard to the Seller's obligation to make Servicing Advances
or P&I Advances, or to the Seller's right to receive compensation for its
services hereunder.
Subject
to the above-described servicing standards, the specific requirements and
prohibitions of this Agreement and the respective Mortgage Loans, and the
provisions of any Primary Insurance Policy and applicable law, the Seller shall
have full power and authority, acting alone, to do any and all things in
connection with such servicing and administration which the Seller may deem
necessary or desirable. Without limiting the generality of the foregoing, the
Seller shall, and is hereby authorized and empowered to (i) execute and deliver
on behalf of itself and the Purchaser, any and all instruments of satisfaction
or cancellation, or of partial or full release, discharge and all other
comparable instruments, with respect to the Mortgage Loan and with respect
to
the Mortgaged Property and (ii) 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 the related Mortgagor if in the Seller's
reasonable and prudent determination such waiver, modification, postponement
or
indulgence is not materially adverse to the interests of the Purchaser and
is
not prohibited by a Primary Insurance Policy; provided, however, that the Seller
may not, unless it has obtained the consent of the Purchaser, (a) permit any
modification with respect to any Mortgage Loan that would vary the Mortgage
Interest Rate, defer or forgive the payment of interest or of any principal,
reduce the outstanding principal amount (other than as a result of its actual
receipt of payment of principal on) or extend the final maturity date of such
Mortgage Loan, (b) with respect to any Mortgage Loan for which any payment
due
remains delinquent for a period of 90 days or more, make any other
modifications, or (c) accept substitute or additional collateral, or release
any
collateral, for a Mortgage Loan. If, with the consent of the Purchaser, the
Seller permits the deferral of interest or principal payments on any Mortgage
Loan, the Seller shall include in each remittance for any month in which any
such principal or interest payment has been deferred an amount equal to the
amount that the Seller would have been required to advance pursuant to Section
5.03 if such deferred amounts had been delinquent, and shall be entitled to
reimbursement for such advances only to the same extent as for P&I Advances
made pursuant to Section 5.03. 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.
-21-
Exhibit
10.10
Section
4.02 Liquidation
of Mortgage Loans; Servicing Advances and Foreclo-sure.
If
any
payment due under any Mortgage Loan and not postponed pursuant to Section 4.01
is not paid when the same becomes due and payable, or if 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 interests of the Purchaser. If any
payment due under any Mortgage Loan and not postponed pursuant to Section 4.01
remains delinquent for a period of 90 days or more, the Seller shall (a) act
in
the best interests of the Purchaser, and such action may include the
commencement of foreclosure proceedings or the sale of such Mortgage Loan,
(b)
if the Seller commences foreclosure proceedings, notify the Purchaser thereof
on
the monthly remittance report delivered pursuant to Section 5.02 on the first
Remittance Date following such commencement and (c) respond to reasonable
inquiries of the Purchaser with respect to the Mortgage Loan or related REO
Property. Notwithstanding
the foregoing, the Seller may not sell a delinquent Mortgage Loan unless it
has
obtained the consent of the Purchaser. The Purchaser may instruct the Seller
to
commence foreclosure proceedings on any Mortgage Loan for which any payment
remains delinquent for a period of 120 days or more. If
the
Seller has commenced foreclosure proceedings, it shall promptly notify the
Purchaser and thereafter periodically advise the Purchaser of the status of
the
foreclosure proceedings and follow the Purchaser's instructions in connection
therewith.
-22-
Exhibit
10.10
Whether
in connection with the foreclosure of a Mortgage Loan or otherwise, the Seller
shall from its own funds make all necessary and proper Servicing Advances;
provided, however, that the Seller is not required to make a Servicing Advance
unless the Seller determines in the exercise of its good faith reasonable
judgment that such Servicing Advance would ultimately be recoverable from REO
Dispositions, Insurance Proceeds or Condemnation Proceeds (with respect to
each
of which the Seller shall have the priority described in Section 4.05 for
purposes of withdrawals from the Custodial Account). In the event that any
Servicing Advance or any commitment to pay Servicing Advances in connection
with
any Mortgage Loan exceeds $5,000 in the aggregate, the Seller shall secure
the
written approval of the Purchaser.
Section
4.03 Collection
of Mortgage Loan Payments.
Continuously
from the date hereof until the principal and interest on all Mortgage Loans
are
paid in full, the Seller will proceed diligently, in accordance with this
Agreement, to collect all payments due under each of the Mortgage Loans when
the
same shall become due and payable, and will take special care in ascertaining
and estimating annual taxes, assessments, fire and hazard insurance premiums,
mortgage insurance premiums, and all other charges that, as provided in any
Mortgage, will become due and payable in order that the installments payable
by
the Mort-gagors will be sufficient to pay such charges as and when they become
due and payable.
Section
4.04 Establishment
of Custodial Account; Deposits in Custodial Account.
The
Seller shall segregate and hold all funds collec-▇▇▇ and received pur-suant
to
each Mortgage Loan and REO Property separate and apart from any of its own
funds
and general assets and shall establish and maintain one or more Custodial
Accounts (collec-tively, the “Custodial Account”), in the form of non-interest
bearing time deposit or demand accounts. The Custodial Account shall be
established with an Eligible Depository Institution. The creation of any
Custodial Account shall be evidenced by a letter agree-ment substantially in
the
form of Exhibit B hereto. A copy of such certifi-ca-tion or letter agreement
shall be furnished to any Purchaser upon request.
The
Seller shall deposit in a mortgage clearing account on a daily basis and in
the
Custodial Account no later than the second Business Day thereafter and retain
therein:
(i) all
scheduled payments due after the Cutoff Date on account of principal, includ-ing
Principal Prepayments collected after the Cutoff Date, on the Mortgage Loans;
(ii) all
payments on account of interest on the Mortgage Loans (minus the portion of
any
such payment which is allocable to the period prior to the Cutoff Date) adjusted
to the Mortgage Loan Remittance Rate;
(iii) all
Liquidation Proceeds;
(iv) all
Insurance Proceeds, including amounts required to be deposited pursuant to
Section 4.10 and Section 4.11, other than proceeds to be held in the Escrow
Account and applied to the restoration or repair of the Mortgaged Property
or
released to the Mortgagor in accordance with Custom-ary Servicing Procedures,
the Mortgage Loan documents or applicable law;
-23-
Exhibit
10.10
(v) all
Condemnation Proceeds with respect to any Mort-gaged Property which are not
released to the Mortgagor in accor-dance with Customary Servicing Procedures,
the Mortgage Loan documents or applicable law;
(vi) any
amounts payable in connection with the repurchase of any Mortgage Loan pursuant
to Section 3.03 and all amounts required to be deposited by the Seller in
connection with shortfalls in principal amount of Qualified Substitute Mortgage
Loans pursuant to Section 3.03 or;
(vii) any
amount required to be deposited in the Custodial Account pursuant to Section
5.04; and
(viii) any
amount required to be deposited in the Custodial Account pursuant to Sections
4.01, 4.14, 5.01, 5.03 and 6.02.
The
foregoing requirements for deposit in the Custodial Account shall be exclusive.
Without limiting the generality of the foregoing, payments in the nature of
late
payment charges, fees for special services provided to a Mortgagor and
assumption fees need not be deposited by the Seller in the Custodial
Account.
The
Seller may invest the funds in the Custodial Account in Eligible Investments
designated in the name of the Seller for the benefit of the Purchaser, which
shall mature not later than the Business Day next preceding the Remittance
Date
next following the date of such investment (except that (i) any investment
in
the institution with which the Custodial Account is maintained may mature on
such Remittance Date and (ii) any other investment may mature on such Remittance
Date if the Seller shall advance funds on such Remittance Date, pending receipt
thereof to the extent necessary to make distributions to the Purchaser) and
shall not be sold or disposed of prior to maturity. Notwithstanding anything
to
the contrary herein and above, all income and gain realized from any such
investment shall be for the benefit of the Seller and shall be subject to its
withdrawal or order from time to time. The amount of any losses incurred in
respect of any such investments shall be deposited in the Custodial Account
by
the Seller out of its own funds immediately as realized.
Section
4.05 Withdrawals
From the Custodial Account.
The
Seller shall, from time to time, withdraw funds from the Custodial Account
for
the following purposes:
(i) to
make
payments to the Purchaser in the amounts and in the manner provided for in
Section 5.01;
(ii) to
reimburse itself for P&I Advances, the Seller's right to reimburse itself
pursuant to this subclause (ii) being limited to amounts received on the related
Mortgage Loan that represent payments of principal and/or interest respecting
which any such P&I Advance was made;
-24-
Exhibit
10.10
(iii) to
reimburse itself first
for
unreimbursed Servic-ing Advances, second
for
▇▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advances, and third
for any
unpaid Servicing Fees, the Seller's right to reimburse itself pursuant to this
subclause (iii) with respect to any Mortgage Loan being limited to related
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds, REO Disposition
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 any such ▇▇▇▇-bursement, the Seller's right thereto shall be
prior to the rights of the Purchaser unless the Seller is required to repurchase
a Mortgage Loan pursuant to Section 3.03, in which case the Seller's right
to
such reimbursement shall be subse-quent to the payment to the Purchaser of
the
Repurchase Price pursuant to Section 3.03 and all other amounts required to
be
paid to the Purchaser with respect to such Mortgage Loan;
(iv) to
reimburse itself for unreimbursed Servicing Advances and advances of Seller
funds made pursuant to Section 5.03 to the extent that such amounts are
nonrecoverable by the Seller pursuant to subclause (iii) above, provided that
the Mortgage Loan for which such advances were made is not required to be
repurchased by the Seller pursuant to Section 3.03, in which case the Seller's
right to such reimbursement shall be subsequent to the payment to the Purchaser
of the Repurchase Price pursuant to Section 3.03 and all other amounts required
to be paid to the Purchaser with respect to such Mortgage Loan, and to reimburse
itself for such amounts to the extent that such amounts are nonrecover-able
from
the disposition of REO Property pursuant to Section 4.14 hereof;
(v) to
reimburse itself for expenses incurred by and reimbursable to it pursuant to
Section 8.01;
(vi) to
pay
itself with respect to each Mortgage Loan repurchased pursuant to Section 3.03
all amounts collected in respect of such Mortgage Loan and remaining on deposit
in the Custodial Account as of the date on which the related Repurchase Price
is
deposited into the Custodial Account (other than the amount of such Repurchase
Price);
(vii) to
pay
itself with respect to each Mortgage Loan servicing compensation pursuant to
Section 6.03;
(viii) to
reimburse itself for any Nonrecoverable Advance or Advances; and
(ix) to
clear
and terminate the Custodial Account upon the termination of this
Agreement.
On
each
Remittance Date, the Seller shall withdraw all funds from the Custodial Account
except for those amounts which, pursuant to Section 5.01(a)(iv) and (v), the
Seller is not obligated to remit on such Remittance Date. The Seller may use
such with-drawn funds only for the purposes described in this Section
4.05.
Section
4.06 Establishment
of Escrow Account; Deposits in Escrow Account.
-25-
Exhibit
10.10
The
Seller shall segregate and hold all funds collec-▇▇▇ and received pur-suant
to
each Mortgage Loan which constitute Escrow Payments separate and apart from
any
of its own funds and general assets and shall establish and maintain one or
more
Escrow Accounts (collectively, the “Escrow Account”), in the form of
non-interest bearing time deposit or demand accounts. The Escrow Account shall
be established with an Eligible Depository Institution. The creation of any
Escrow Account shall be evidenced by a letter agreement substantially in the
form of Exhibit C hereto. Upon request, the Seller shall provide the Purchaser
with a copy of a letter agreement evidencing the establishment of each Escrow
Account. Notwithstanding the foregoing, the Seller may deposit in the Escrow
Account amounts constituting escrow payments relating to mortgage loans not
subject to this Agreement, provided, however, that all Escrow Payments in the
Escrow Account are insured in a manner which shall provide the maximum available
insurance by the FDIC thereon.
The
Seller shall deposit in a mortgage clearing account on a daily basis and no
later than the second Business Day thereafter in the Escrow Account and retain
therein: (i) all Escrow Payments held or collec-▇▇▇ on account of the Mortgage
Loans, for the purpose of effect-ing timely payment of any such items as
required under the terms of this Agreement, (ii) all Insurance Proceeds that
are
to be applied to the restoration or repair of any Mortgaged Property and (iii)
all revenues received with respect to the management, conservation, protection
and operation of the REO Properties pursuant to Section 4.14. 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 set forth in or in
accordance with Section 4.07. The Seller shall pay to the Mortgagor interest
on
escrowed funds to the extent required by law notwithstanding that the Escrow
Account is non-interest bearing.
Section
4.07 Withdrawals
From Escrow Account.
Withdrawals
from the Escrow Account may be made by the Seller only (a) to effect timely
payments of taxes, assessments, Primary Insurance Policy pre-miums, fire and
hazard insurance premiums or other items consti-tuting Escrow Payments for
the
related Mortgage, (b) to reimburse the Seller for any Servicing Advance made
by
Seller pursuant to Section 4.08 hereof with respect to a related Mortgage Loan,
but only from amounts received on the related Mortgage Loan which represent
late
payments or collec-tions of Escrow Payments there-under, (c) to refund to any
Mort-gagor any funds found to be in excess of the amounts required under the
terms of the related Mortgage Loan, (d) upon default of a Mortgagor or in
accordance with the terms of the related Mortgage Loan and if permitted by
applicable law, for transfer to the Custodial Account of such amounts as are
to
be applied to the indebtedness of a Mortgage Loan in accordance with the terms
thereof, (e) for application to restoration or repair of the Mortgaged Property,
(f) to deposit into the Custodial Account the funds required to be deposited
therein pursuant to Section 4.14, (g) to pay to itself amounts to which it
is
entitled pursuant to Section 4.14, (h) to withdraw any Escrow Payments related
to a Mortgage Loan repurchased by the Seller pursuant to Section 3.03, or (i)
to
clear and terminate the Escrow Account upon the termina-tion of this
Agreement.
Section
4.08 Payment
of Taxes, Insurance and Other Charges.
With
respect to each Mortgage Loan, the Seller shall maintain accurate records
reflecting the status of taxes, assessments, and other charges for which an
escrow is maintained and the status of Primary Insurance Policy premiums and
fire and hazard insurance coverage and shall obtain, from time to time, all
bills for the payment of such charges (including renewal premiums) and shall
effect payment thereof employing for such purpose deposits of the Mortgagor
in
the Escrow Account which shall have been estimated and accumulated by the Seller
in amounts sufficient for such purposes, as allowed under the terms of the
Mortgage or applicable law. To the extent that a Mortgage does not provide
for
Escrow Payments, or the Seller has waived the escrow of Escrow Payments or
the
Seller is prohibited by applicable state law from requiring the escrow of Escrow
Payments, the Seller shall determine that any such payments are made by the
Mortgagor. The Seller assumes full responsibility for the timely payment of
all
such bills and shall effect timely payments of all such bills irrespective
of
each Mortgagor's faithful performance in the payment of same or the making
of
the Escrow Payments and shall make advances from its own funds to effect such
payments.
-26-
Exhibit
10.10
Section
4.09 Transfer
of Accounts.
The
Seller may from time to time transfer the Custodial Account and the Escrow
Account to any other Eligible Depository Institution. The Seller shall notify
the Purchaser within 14 days of any such transfer under this Section
4.09.
Section
4.10 Maintenance
of Hazard Insurance.
The
Seller shall cause to be maintained for each Mortgage Loan, fire and hazard
insurance with extended coverage customary in the area where the Mortgaged
Property is located, in an amount which is, subject to applicable law, at least
equal to the lesser of (i) the maximum insurable value of the improvements
securing the related Mortgage Loan and (ii) the greater of (a) the outstanding
principal balance of the Mortgage Loan and (b) the minimum amount necessary
to
prevent the Mortgagor and/or the mortgagee from becoming a co-insurer. If the
Mortgaged Property is in an area identified in the Federal Register by the
Federal Emergency Management Agency as 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 guide-lines
of
the Federal Insurance Administration with a gener-ally acceptable insurance
carrier, in an amount representing coverage not less than the least of (i)
the
out-standing principal balance of the Mortgage Loan, (ii) the full insurable
value of the Mortgaged Property, or (iii) the maximum amount of insurance
available under the National Flood Insurance Act of 1968 and the Flood Disaster
Protection Act of 1973, each as amended. The Seller shall also maintain on
any
REO Property, fire and hazard insurance with extended coverage in an amount
which is at least equal to the maximum insurable value of the improvements
which
are a part of such property, liability insur-ance and, to the extent required
and available under the National Flood Insurance Act of 1968 and the Flood
Disaster Protection Act of 1973, each as amended, flood insurance in an amount
required above. Any amounts collected by the Seller under any such policies
(other than amounts to be depos-ited in the Escrow Account and applied to the
restoration or repair of the related Mortgaged Property, REO Property, or
released to the Mortgagor in accordance with Customary Servicing Procedures
or
in accordance with the terms of the Mortgage Loan or applicable law) shall
be
depos-ited in the Custodial Account, subject to with-drawal pursuant to Section
4.05. It is understood and agreed that no earthquake or other additional
insurance need be required by the Seller of any Mortgagor or maintained on
property acquired in respect of a Mortgage Loan, other than pursuant to such
appli-cable laws and regulations as shall at any time be in force and as shall
require such additional insurance. All policies required hereunder shall be
endorsed with standard mortgagee clauses with loss payable to the Seller, its
successors and its assigns, or, upon request of the Purchaser, to the Purchaser,
and shall provide for at least 30 days prior written notice to the Seller of
any
cancellation thereof. The Seller shall not accept or obtain any such insur-ance
policy from an insur-ance company that does not at that time maintain a General
Policy Rating of B-III or better in Best's Key Rating Guide, or that is not
licensed to do business in the State wherein the related Mortgaged Property
is
located.
-27-
Exhibit
10.10
Section
4.11 Maintenance
of Blanket Insurance Policy.
If
the
Seller shall obtain and maintain a blanket insurance policy that is issued
by an
insurer generally acceptable to ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac and that insures
against hazard losses on all of the Mortgage Loans, then, to the extent such
policy provides coverage in an amount equal to the coverage required pursuant
to
Section 4.10 and otherwise complies with all other requirements of Section
4.10,
the Seller shall be deemed to have satisfied its obligations as set forth in
Section 4.10. Such policy may contain a clause providing for a reasonable
deductible, in which case the Seller shall, if there shall not have been
maintained on the related Mortgaged Property a policy complying with Section
4.10, and if there shall have been a loss that 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.
Section
4.12 Maintenance
of Mortgage Impairment Insurance Policy.
The
Seller may satisfy its obligations under Section 4.10 and 4.11 pertaining to
physical storage of insurance policies and general policy rating requirements
by
maintaining a mortgage impairment or other form of blanket policy that will
protect the Seller and/or investor in the event of uninsured loss, insolvency
of
an insurance carrier or any other loss normally to be covered by a mortgage
impairment policy. It is agreed that any expense incurred by the Seller in
maintaining any such insurance shall be borne by the Seller. This shall be
deemed to include any loss or any expense as a result of a deductible clause
in
such a policy.
Section
4.13 Fidelity
Bond; Errors and Omissions Insurance.
The
Seller at its own expense shall maintain with responsible companies throughout
the term of this Agreement a blanket fidelity bond and an errors and omissions
insurance policy, with broad coverage on all officers, employees and other
individuals acting on behalf of the Seller in connection with its activities
under this Agreement. The amount of coverage shall be at least equal to the
coverage that would be required of the Seller by ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac,
if
the Seller were servicing the Mortgage Loans for ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac,
and
such policy shall be issued by a company that is acceptable to ▇▇▇▇▇▇ Mae or
▇▇▇▇▇▇▇ Mac. 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 caused by such individuals, including losses from forgery,
theft, embezzlement, fraud, errors and omissions and negligent acts of such
individuals. 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 satis-faction of a
Mortgage Loan without having obtained payment in full of the indebtedness
secured thereby. No provision of this Section 4.13 requiring such fidelity
bond
and errors and omis-sions insurance shall diminish or relieve the Seller from
its duties and obligations as set forth in this Agreement.
-28-
Exhibit
10.10
Section
4.14 Title,
Management and Disposition of REO Property.
If
title
to a Mortgaged Property is acquired in foreclosure or by deed in lieu of
foreclosure, the deed or certificate of sale shall be taken in the name of
the
Seller or its nominee, in either case as nominee, for the benefit of the
Purchaser on the date of acquisition of title (the “REO Purchaser”). In the
event the Seller is not authorized or permitted to hold title to real property
in the state in which the REO Property is located, or would be adversely
affected under the “doing business” or tax laws of such state by so holding
title, the deed or certificate of sale shall be taken in the name of such Person
or Persons as shall be consistent with an opinion of counsel obtained by the
Seller, at expense of the REO Purchaser, from an attorney duly licensed to
practice law in the state where the REO Property is located. The Person or
Persons holding such title other than the REO Purchaser shall acknowledge in
writing that such title is being held as nominee for the REO Purchaser.
The
Seller, either itself or through an agent selected by the Seller, shall manage,
conserve, protect and operate each REO Property for the REO Purchaser solely
for
the purpose of its prompt disposition and sale, and in same manner that it
would
be required to manage, conserve, protect and operate foreclosed property for
its
own account (subject to the condition described in the second paragraph of
Section 4.02). The Seller shall attempt to sell the same (and may temporarily
rent the same) on such terms and conditions as the Seller deems to be in the
best interest of the REO Purchaser.
The
Seller shall cause to be deposited in the Escrow Account, on a daily basis
upon
receipt thereof, all revenues received with respect to the conservation and
disposition of the related REO Property and shall withdraw therefrom funds
necessary for the proper opera-tion, management and maintenance of the related
REO Property, including the cost of maintaining any hazard insurance pursuant
to
Section 4.10 hereof and the fees of any managing agent acting on behalf of
the
Seller. Any disbursement in excess of $5,000 shall be made only with the written
approval of the REO Purchaser. For purposes of the preceding sentence, any
approval given by the Purchaser shall constitute approval by the REO Purchaser.
On or before each Determination Date, the Seller shall withdraw from the Escrow
Account and deposit into the Custodial Account the net income from the REO
Property on deposit in the Escrow Account less any reserves required to be
maintained in the Escrow Account from time to time to satisfy reasonably
anticipated expenses. 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 and the Seller's efforts
in connection with the sale of that REO Property. Such statement shall be
accompanied by such other information as the Purchaser shall reasonably request.
Subject
to Section 4.02, 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
interests of the REO Purchaser. If upon the acquisition of title to the
Mortgaged Property by foreclosure sale or deed in lieu of foreclosure or
otherwise, there remain outstanding ▇▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advances pursuant to
Section 5.03 with respect to the Mortgage Loan or if, upon liquidation as
provided in this Section 4.14, there remain outstanding any unreimbursed
Servicing Advances with respect to the Mortgaged Property or the Mortgage Loan,
the Seller shall be entitled to reimbursement from the proceeds received in
connection with the disposition of the Mortgaged Property, and from the
Custodial Account if such proceeds are insufficient, for any related
unreimbursed Servicing Advances or related ▇▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advances
pursuant to Section 5.03. On the Remittance Date immediately following the
Principal Prepayment Period in which REO Disposition Proceeds are received,
the
net cash proceeds of such REO Disposition shall be distributed to the REO
Purchaser. In the event that the Seller is billed for expenses related to an
REO
Property subsequent to the date on which the net cash proceeds of such REO
Disposition are distributed to the REO Purchaser, the Seller shall pay such
expenses and shall thereupon be entitled to reimburse itself therefor by
withdrawing the amount of such expenses from the Custodial Account.
-29-
Exhibit
10.10
Section
4.15 Adjustments
to Mortgage Interest Rate and Monthly Payment.
On
each
applicable Interest Rate Change Date, the Mortgage Interest Rate shall be
adjusted, in compliance with the requirements of the related Mortgage and
Mortgage Note, to equal the sum of the Current Index plus the Margin (rounded
in
accordance with the related Mortgage Note) subject to the applicable Annual
Mortgage Interest Rate Cap and Lifetime Mortgage Interest Rate Cap, if any,
as
set forth in the Mortgage Note. The Seller shall execute and deliver the notices
required by each Mortgage and Mortgage Note, Customary Servicing Procedures,
applicable laws and regulations regarding interest rate
adjustments.
ARTICLE
V
PAYMENTS
TO THE PURCHASER
Section
5.01 Distributions.
(a) On
each
Remittance Date, the Seller shall remit to the Purchaser of record on the
preced-ing Record Date (i) all amounts credited to the Custodial Account as
of
the close of business on the preced-ing Determination Date (net of charges
against or withdraw-als from the Custodial Account pursuant to Section
4.05(ii)-(iv), plus (ii) the aggregate amount of P&I Advances, if any, and
payments pursuant to Section 5.03, if any, that the Seller is obligated to
make
on such Remittance Date, plus (iii) the aggregate amount of any Prepayment
Interest Shortfall existing as of such Remittance Date, and minus (iv) any
amounts that represent early receipts of Monthly Payments due on a Due Date
or
Due Dates subse-quent to the Due Date occurring in the Due Period for such
Remittance Date or Principal Prepayments received during the month of such
Remittance Date (except to the extent that, pursuant to Section 5.03, any funds
described in this clause (iv) are to be remitted to the Purchaser in lieu of
P&I Advances by the Seller out of its own funds).
(b) Each
remittance pursuant to this Section 5.01 shall be made by wire transfer of
immediately available funds to, or by other means of transmission or transfer
that causes funds to be immediately available in, the account which shall have
been designated by the Purchaser.
The
Seller shall ten days prior to the Remittance Date on which the final
distribution of funds to Purchaser is to be made hereunder, notify each
Purchaser of the pendency of such distribution and such distribution shall
be
made to each Purchaser.
Section
5.02 Statements
to the Purchaser.
-30-
Exhibit
10.10
Not
later
than the tenth (10th)
day of
each month, the Seller shall deliver to the Purchaser a monthly remittance
statement in the form of, and providing the information described in, Exhibit
F
hereto.
In
addition, not more than 60 days after the end of each calendar year, upon
receipt of written request by the Purchaser, the Seller will furnish at any
time
during such calendar year, a 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
(other than those required to be filed by the Purchaser) or to the Purchaser
pursuant to any applicable law with respect to the Mortgage Loans and the
transactions contemplated hereby.
Section
5.03 P&I
Advances by the Seller.
Not
later
than the close of business on the Business Day preceding each Remittance Date,
the Seller shall from its own funds deposit in the Custodial Account an amount
equal to all Monthly Payments that were due on the related Due Date and that
were ▇▇▇▇▇-▇▇▇▇▇ at the close of business on the related Determination Date,
with the interest adjusted to the respective Mortgage Loan Remittance Rates;
provided, however, that to the extent there are funds on deposit in the
Custodial Account that are not otherwise required to be distributed to the
Purchaser on such Remittance Date, the Seller may remit such funds in lieu
of
making advances of its own funds; and further provided that any such funds
held
for future distribution and so used shall be appropriately reflected in the
Seller's records and replaced by the Seller by deposit into the Custodial
Account on or before each Remittance Date to the extent that funds on deposit
in
the Custodial Account for the related Remittance Date (determined without regard
to P&I Advances required to be made on such Remittance Date) shall be less
than the aggregate amount required to be distributed to the Purchaser pursuant
to Section 5.01 on such related Remittance Date. For purposes of this Section
5.03, any Monthly Payment or portion thereof deferred pursuant to Section 4.01
shall be considered delinquent until paid. The Seller's obligation to make
P&I Advances as to any Mortgage Loan shall continue through the earlier to
occur of (a) the repurchase of the Mortgage Loan by the Seller pursuant to
Section 3.03, and (b) the Remittance Date following the ultimate liquidation
of
the Mortgage Loan and related REO Property.
Notwithstanding
the provisions of this Section 5.03, the Seller shall not be required to make
any advance of principal and interest if, in the good faith judgment of the
Seller, such advance of principal and interest will not ultimately be
recoverable from the related Mortgagor, from Liquidation Proceeds or
otherwise.
Section
5.04 Prepayment
Interest Shortfalls.
Not
later
than the close of business on the Business Day preceding each Remittance Date,
the Seller shall from its own funds deposit in the Custodial Account an amount
equal to the aggregate Prepayment Interest Shortfall, if any, existing in
respect of the related Principal Prepayment Period.
-31-
Exhibit
10.10
ARTICLE
VI
GENERAL
SERVICING PROCEDURE
Section
6.01 Assumption
Agreements.
The
Seller shall use its best efforts to enforce any “due-on-sale” provision
contained in each Mortgage or Mortgage Note to the extent permitted by law
and
provided that such enforcement would not impair any recovery under any related
Primary Insurance Policy. The Seller shall be entitled to retain as additional
servicing compensation any assumption fee collected by the Seller for entering
into an assumption agreement.
Section
6.02 Release
of Mortgage Files; Wrongful Satisfaction of Mortgages.
Upon
the
payment in full of any Mortgage Loan, the Seller will obtain the portion of
the
Mortgage File that is in the possession of the Custodian, prepare and process
any required satisfaction or release of the Mortgage and notify the Purchaser
as
provided in Section 5.02.
If
the
Seller satisfies or releases the lien of a ▇▇▇▇-▇▇▇▇ without having obtained
payment in full of the indebtedness secured by the Mortgage, the Seller, upon
written demand, shall remit to the Purchaser the then Assumed Principal Balance
of the related Mortgage Loan by deposit thereof in the Custodial Account. The
Seller shall maintain the Fidelity Bond as provided for in Section 4.13 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.
Section
6.03 Servicing
Compensation.
As
compensation for its services hereunder, the Seller shall be entitled to
withdraw from the Custodial Account or to retain from interest payments on
the
Mortgage Loans the amounts provided for as the Seller’s Servicing Fee.
Additional servicing compensation in the form of assumption fees, as provided
in
Section 6.01, and late payment charges or otherwise shall be retained by the
Seller. The Seller shall be entitled to request reimbursement for additional
services, including:
(a) express
and other delivery charges and any other reasonable out-of-pocket expenses
incurred by the Seller with respect to a Mortgage Loan to the extent not
ordinary to the servicing function (but not including salaries, rent and other
general operating expenses of Servicer normally classified as
overhead);
(b) preparation
and delivery of any special reports, magnetic tapes, disks, or transmission
outside the normal monthly accounting reports; and
(c) to
the
extent not ordinary to the servicing function, any action taken by the Seller
which the Seller reasonably determines to be necessary or appropriate in order
to protect the rights of Purchaser, (including property preservation), with
respect to any Mortgage Loan, not to exceed $5,000.00 without the prior approval
by Purchaser (with the exception of advances for real estate taxes and insurance
premiums).
Section
6.04 Annual
Compliance Statement.
-32-
Exhibit
10.10
The
Seller shall deliver to the Purchaser and any Master Servicer, on or before
March 1 of each year, beginning March 1, 2007, an Officers' Certificate
(“Compliance Statement”) to the effect that (i) a review of the activi-ties of
the Seller during the preceding calendar year and of the Seller's performance
under this Agreement has been made under such offi-cer's supervision, and (ii)
to the best of such officer's knowledge, based on such review, the Seller has
fulfilled all of its obligations under this Agreement in all material respects
throughout such year, or, if there has been a failure to fulfill any such
obliga-tion in any material respect, specifying each such failure and the nature
and status thereof.
Section
6.05 Annual
Assessment of Compliance and Attestation Report..
The
Seller shall deliver to the Purchaser and any Master Servicer, no later than
March 1 of each year, beginning March 1, 2007, an assessment of compliance
with
servicing criteria on a certification substantially in the form of Exhibit
I
hereto
(“Assessment of Compliance”) and related attestation report (“Attestation
Report”) as of and for the period ending on December 31 of the preceding
calendar year, which Assessment of Compliance and Attestation Report will relate
to each of the servicing criteria identified as the Seller’s responsibility on
Schedule 1122 thereto and shall comply with the provisions of Regulation AB.
Each such Assessment of Compliance shall include (a) a statement of the party’s
responsibility for assessing compliance with the servicing criteria applicable
to such party, (b) a statement that such party used the criteria identified
in
Item 1122(d) of Regulation AB to assess compliance with the applicable servicing
criteria, (c) disclosure of any material instance of noncompliance identified
by
such party, and (d) a statement that a registered public accounting firm has
issued an Attestation Report on such party’s Assessment of Compliance with the
applicable servicing criteria.
Section
6.06 Purchaser's
Right to Examine Seller Records.
The
Purchaser shall have the right, upon reasonable notice to the Seller, to examine
and audit any and all of the books, records or other information of the Seller
whether held by the Seller or by another on behalf of the Seller, which may
be
relevant to the performance or observance by the Seller of the terms, covenants
or conditions of this Agreement, and to discuss such books, records or other
information with an officer or employee of the Seller who is knowledgeable
about
the matters contained therein.
ARTICLE
VII
REPORTS
TO BE PREPARED BY SELLER
Section
7.01 Seller
Shall Provide Access and Information as Reasonably Required.
The
Seller shall furnish to the Purchaser upon written request, during the term
of
this Agreement, such periodic, special or other reports or information, whether
or not provided for herein, as shall be necessary, reasonable or appropriate
with respect to the purposes of this Agreement. The Seller may negotiate with
the Purchaser for a reasonable fee for providing such report or information,
unless (i) the Seller is required to supply such report or information pursuant
to any other section of this Agreement, or (ii) the report or information has
been requested in connection with Internal Revenue Service requirements. The
Seller agrees to execute and deliver all such instruments as the Purchaser,
from
time to time, may reasonably request in order to effectuate the purposes and
to
carry out the terms of this Agreement.
-33-
Exhibit
10.10
Section
7.02 Financial
Statements.
The
Seller understands that, in connection with marketing the Mortgage Loans, the
Purchaser may make available to a prospective Purchaser a consolidated statement
of operations of Seller for the most recently completed five fiscal years for
which such a statement is available as well as a consolidated statement of
condition at the end of the last two fiscal years covered by such consolidated
statement of operations. The Seller, if it has not already done so, agrees
to
promptly furnish to Purchaser copies of the statements specified
above.
The
Seller also agrees to make available upon reasonable notice and during normal
business hours to any prospective Purchaser a knowledgeable financial or
accounting officer for the purposes of answering questions respecting recent
developments affecting the Seller or the financial statements of the Seller
and
to permit upon reasonable notice and during normal business hours 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 in accordance with this Agreement.
ARTICLE
VIII
THE
SELLER
Section
8.01 Indemnification;
Third Party Claims.
The
Seller agrees to indemnify the Purchaser and hold them harmless against any
and
all claims, losses, penal-ties, fines, forfeitures, reasonable legal fees and
related costs, judg-ments, and any other costs, fees and expenses that the
Purchaser incurs directly resulting from the failure of the Seller to perform
its duties and service the Mortgage Loans in material compliance with the terms
of this Agreement. The Seller shall immediately notify the Purchaser if a claim
is made by a third party with respect to this Agreement or any Mortgage Loans.
The Seller shall follow any written instructions received from the Purchaser
in
connection with such claim.
Section
8.02 Merger
or Consolidation of the Seller.
The
Seller shall keep in full effect its existence, rights and franchises as a
corporation, and shall preserve its qualification to do business as a foreign
corpora-tion in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this Agreement, or
the
ability of 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 hereunder,
shall be the successor of the Seller hereunder without the execution or filing
of any paper or any further act on the part of either of the parties hereto,
anything herein to the contrary notwithstanding; provided, however, that the
successor or sur-viving Person shall be an institution (i) that is qualified
to
service mortgage loans on behalf of ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac and (ii) that
has
a net worth of not less than $15,000,000.
-34-
Exhibit
10.10
Section
8.03 Seller
Not to Resign.
The
Seller shall not assign this Agreement (except to any affiliate or subsidiary
of
the Seller) or resign from the obligations and duties hereby imposed on it
except by mutual consent of the Seller and the Purchaser or upon the
determination that its duties hereunder are no longer permissible under
applicable law and such incapacity cannot be cured by the Seller. Any such
determination permitting the resignation of the Seller shall be evidenced by
an
Opinion of Counsel to such effect delivered to the Purchaser. 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 11.01.
ARTICLE
IX
DEFAULT
Section
9.01 Events
of Default.
Event
of
Default, whenever used herein, means any one or more of the following events:
(i) any
failure by the Seller to remit to the Purchaser any payment required to be
made
under the terms of this Agreement that continues unremedied for a period of
three (3) days after the date upon which written notice of such failure,
requiring the same to be remedied, shall have been received by the Seller from
the Purchaser; or
(ii) any
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 or in the Custodial Agreement that continues unremedied
for a period of 30 days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been received by the Seller from
the Purchaser; or
(iii) a
decree
or order of a court or agency or super-visory authority having jurisdiction
for
the appointment of a trustee in bankruptcy, conservator, receiver or liquidator
in any bankruptcy, reorganization, insolvency, read-justment 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 60 days; or
(iv) the
Seller ceases to be qualified to transact business in any jurisdiction where
it
is currently so qualified, but only to the extent such non-qualification
materially and adversely affects the Seller’s ability to perform its obligations
hereunder; or
(v) the
Seller shall consent to the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to the Seller or of or
relating to all or substantially all of its property; or
-35-
Exhibit
10.10
(vi) 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.
If
an
Event of Default shall occur, then so long as such Event of Default shall not
have been remedied, the Purchaser may, by notice in writing to the Seller,
in
addition to whatever rights the Purchaser may have at law or equity to damag-es,
including injunctive relief and specific performance, termi-nate all the rights
and obligations of the Seller under this Agreement and in and to the Mortgage
Loans and the proceeds thereof. On or after the receipt by the Seller of such
written notice, all authority and power of the Seller under this Agree-ment,
whether with respect to the Mortgage Loans or otherwise, shall pass to and
be
vested in the successor appointed pursuant to Section 11.01. Upon written
request from the Purchaser, the Seller shall prepare, execute and deliver,
any
and all documents and other instruments, place in such successor's possession
all Mortgage Files, and do or accom-plish 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 shall
cooperate with the Purchaser and such successor in effecting the termination
of
the Seller's responsi-bilities and rights hereunder, including, without
limitation, the transfer to such successor for adminis-tration by it of all
cash
amounts (less any amounts due the Seller pursuant to the terms of this
Agreement) which shall at the time be credited by the Seller to the Custodial
Account or Escrow Account or thereafter received with respect to the Mortgage
Loans.
Section
9.02 Waiver
of Defaults.
The
Purchaser may in writing waive any past default by the Seller in the performance
of its obligations hereunder and the consequences thereof and any default in
remitting to Purchaser any required distribution in accordance with this
Agreement, including the Seller's obligation to make P&I Advances. Subject
to the preceding sentence, upon any waiver of a past default, such default
shall
be deemed not to exist and any Event of Default arising therefrom shall be
deemed to have been remedied for every purpose of this Agreement, except as
otherwise stated in such waiver; provided, however, that no such waiver shall
extend to any subsequent or other default or impair any right consequent
thereto, except as otherwise stated in such waiver.
-36-
Exhibit
10.10
ARTICLE
X
TERMINATION
Section
10.01 Termination.
(a) This
Agreement shall terminate upon either: (i) the later of the distribution to
the
Purchaser of 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 or (ii) mutual
consent of the Seller and the Purchaser in writing.
(b) The
Seller, at its option but only upon thirty (30) days' prior written notice
to
the Purchaser, may terminate this Agreement at any time when the aggregate
Assumed Principal Balance of the Mortgage Loans which remain subject to this
Agreement (the “Remaining Mortgage Loans”) has been reduced by application of
Monthly Payments or otherwise to an amount no greater than ten (10) percent
of
the aggregate Assumed Principal Balance of the Remaining Mortgage Loans as
of
the Cut-off Date; provided, however, that if any of such Mortgage Loans are
included in a REMIC, the Servicer agrees not to exercise its right to repurchase
such Mortgage Loans so included and unless and until such right can be exercised
in conjunction with a "qualified liquidation" (as defined in Section 860F(a)(4)
of the Code) of such REMIC, as advised by the Purchaser. Such termination shall
be effected by the deposit by the Seller of an amount equal to the sum of (i)
100% of the aggregate Assumed Principal Balance of the Remaining Mortgage Loans
as of the first calendar day of the month in which such repurchase occurs (the
“Repurchase Cut-off Date”) after application of principal due on such date
whether or not received, and the appraised value of REO Properties, which
appraisals shall be performed by an appraiser acceptable to ▇▇▇▇▇▇ ▇▇▇ and
▇▇▇▇▇▇▇ Mac, and (ii) interest on the aggregate Assumed Principal Balance at
the
Mortgage Loan Remittance Rate from the Repurchase Cut-off Date to, but not
including, the date of repurchase. Upon any such purchase of Mortgage Loans
and
REO Properties under this Section 10.01(b), the Purchaser shall, to the extent
necessary, transfer or cause to be transferred to the Seller title to the
repurchased Mortgage Loans and REO Properties by instruments of transfer or
assignment, without recourse. The Seller may not purchase fewer than all of
such
Mortgage Loans and REO Properties. The Seller shall deposit the repurchase
price
for the remaining Mortgage Loans as described in (i) and (ii) above in the
Custodial Account no later than one (1) Business Day prior to the first
Remittance Date to occur after the expiration of thirty days following the
notice described in the first sentence of this Section 10.01(b). Upon
presentation and surrender of the outstanding Mortgage Loans, the Seller shall
cause to be distributed to the Purchaser on such Remittance Date the repurchase
price together with the amounts (including P&I Advances) that would be
otherwise distributable to the Purchaser in respect of Mortgage Loans and REO
Properties on such Remittance Date. Upon receipt of such final payment, the
Purchaser shall deliver, or cause the Custodian to deliver to the Seller, the
Mortgage Files in connection therewith and shall otherwise use its best efforts
to effect or cause to be effected the orderly transfer of assets to the
Seller.
-37-
Exhibit
10.10
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
Section
11.01 Successor
to the Seller.
Prior
to
termination of the Seller's responsibilities and duties under this Agreement
pursuant to Section 8.03, 9.01 or 10.01(a)(ii), 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 responsi-bilities, duties and
liabil-ities of the Seller under this Agreement prior to the termina-tion of
Seller's responsibilities, duties and liabilities under this Agreement. In
connection with such appointment and assump-tion, the Purchaser may make such
arrange-ments for the compensation of such successor out of payments on
▇▇▇▇-▇▇▇▇ Loans as it and such successor shall agree. The Seller shall discharge
its 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 dili-gence and prudence that it is obligated to exercise under this
Agreement. The resignation or removal of the Seller pursuant to the
aforemen-tioned Sections shall not become effective until a successor shall
be
appointed pursuant to this Section and shall not relieve the Seller named herein
of its obligations under Section 3.03.
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 liabil-ities of the Seller, with
like
effect as if originally named as a party to this Agreement. No termination
of
the Seller or this Agreement shall affect any claims that the Purchaser may
have
against the Seller arising prior to any such termina-tion or
resignation.
The
Seller shall timely deliver to its successor the funds in the Custodial Account
and the Escrow Account (less any amounts to which the Seller is entitled
pursuant to the terms of this Agreement) and all 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, respon-sibilities,
obligations and liabilities of the Seller.
Upon
a
successor's acceptance of appointment as such, the Seller shall notify by mail
the Purchaser of such appointment.
In
connection with the termination or resignation of the Seller hereunder, either
(i) the successor shall represent and warrant that it is a member of MERS in
good standing and shall agree to comply in all material respects with the rules
and procedures of MERS in connection with the servicing of the Mortgage Loans
that are registered with MERS, in which case the Seller shall cooperate with
the
successor in causing MERS to revise its records to reflect the transfer of
servicing to the successor as necessary under MERS’ rules and regulations, or
(ii) the Seller shall cooperate with the successor in causing MERS to execute
and deliver an assignment of Mortgage in recordable form to transfer the
Mortgage from MERS to the Purchaser and to execute and deliver such other
notices, documents and other instruments as may be necessary or desirable to
effect a transfer of such Mortgage Loan or servicing of such Mortgage Loan
on
the MERS® System to the successor. The Seller shall file or cause to be filed
any such assignment in the appropriate recording office. The Purchaser shall
bear any and all fees of MERS, costs of preparing any assignments of Mortgage,
and fees and costs of filing any assignments of Mortgage that may be required
under this subsection (b). The successor shall cause such assignment to be
delivered to the Purchaser or the Custodian promptly upon receipt of the
original with evidence of recording thereon or a copy certified by the public
recording office in which such assignment was recorded.
-38-
Exhibit
10.10
Section
11.02 Repurchases
and Related Assurances.
In
the
event the Seller repurchases a Mortgage Loan pursuant to Section 3.03, the
Purchaser shall upon any request of the Seller subsequent to the Remittance
Date
on which the Repurchase Price has been remitted to the Purchaser take actions
reasonably necessary to effect the reconveyance of the Mortgage
Loan.
Section
11.03 Amendment.
This
Agreement may be amended only by written agreement signed by the Seller and
Purchaser hereunder.
Section
11.04 Reserved.
Section
11.05 Duration
of Agreement.
This
Agreement shall continue in existence and effect until terminated as herein
provided.
Section
11.06 Governing
Law.
This
Agreement shall be construed in accordance with the laws of the State of New
York, except to the extent preempted by federal law but without regard to
principles of conflicts of laws, and the obligations, rights and reme-dies
of
the parties hereunder shall be determined in accordance with such laws.
Section
11.07 Notices.
Any
communications provided for or permitted hereunder shall be in writing and,
unless otherwise expressly provided herein, shall be deemed to have been duly
given if (a) personally delivered, (b) mailed by registered mail, postage
prepaid, return receipt requested, and received by the addressee, (c) sent
by
express courier delivery service and received by the addressee, or (d)
transmitted by telex, telecopy or telegraph and confirmed by a writing delivered
by means of (a), (b) or (c), to: (i) in the case of the Seller, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇, telecopy number: (▇▇▇)
▇▇▇-▇▇▇▇, or such other address as may hereafter be fur-nished to the Purchaser
and the Guarantor in writing by the Seller, (ii) in the case of the Purchaser,
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇, or such other address as may
hereafter be furnished to the Seller in writing by the Purchaser, and (iii)
in
the case of the Guarantor, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇, or
such
other address as may hereafter be furnished to the Seller in writing by the
Guarantor.
-39-
Exhibit
10.10
Section
11.08 Severability
of Provisions.
If
any
one or more of the covenants, agreements, provi-sions or terms of this Agreement
shall be held invalid for any reason whatso-ever, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no
way
affect the validity or enforceability of the other provisions of this
Agreement.
Section
11.09 No
Partnership.
Nothing
herein contained shall be deemed or construed to create a co-partnership or
joint venture between the parties hereto and the services of the Seller shall
be
rendered as an independent contractor and not as agent for the Purchaser.
Section
11.10 Counterparts.
This
Agreement may be executed in any number of coun-ter-parts and by different
parties hereto on separate counter-parts, each of which shall be deemed to
be an
original. Such counterparts shall constitute one and the same
agreement.
Section
11.11 Successors
and Assigns.
Notwithstanding
anything to the contrary in this agreement, it is understood and agreed that
the
Purchaser may transfer its interest in this Agreement and the Mortgage Loans
in
whole or in part, in accordance with Article XII of this Agreement. This
Agreement shall inure to the benefit of and be binding upon the Seller and
the
Purchaser and their respective successors and assigns permitted hereunder.
Section
11.12 General
Interpretive Principles.
For
purposes of this Agreement, except as otherwise expressly pro-vided 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, Clauses and other subdivisions of this
Agreement;
-40-
Exhibit
10.10
(d) a
reference to a Subsection without further reference to a Section is a reference
to such Subsection as contained in the same Section in which the reference
appears, and this rule shall also apply to Paragraphs, Clauses, 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
11.13 Intention
of the Seller
The
Seller intends that the conveyance of the Seller’s right, title and interest in
and to the Mortgage Loans to the Purchaser shall constitute a sale and not
a
pledge of security for a loan. If such conveyance is deemed to be a pledge
of
security for a loan, however, the Seller intends that the rights and obligations
of the parties to such loan shall be established pursuant to the terms of this
Agreement. The Seller also intends and agrees that, in such event, (i) the
Seller shall be deemed to have granted to the Purchaser and its assigns a first
priority security interest in the Seller’s entire right, title and interest in
and to the Mortgage Loans, all principal and interest received or receivable
with respect to the Mortgage Loans, all amounts held from time to time in the
accounts mentioned pursuant to this Agreement and all reinvestment earnings
on
such amounts, together with all of the Seller’s right, title and interest in and
to the proceeds of any title, hazard or other insurance policies related to
such
Mortgage Loans and (ii) this Agreement shall constitute a security agreement
under applicable law. 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 such rights and remedies
may be exercised concurrently, independently and successively.
Section
11.14 Guaranty
of Purchaser’s Obligations
The
Guarantor hereby agrees to cause RWT Holdings, Inc. to perform all of its duties
and obligations as the Purchaser hereunder, guaranties the timely performance
of
such duties and obligations by RWT Holdings, Inc. and agrees to be jointly
and
severally liable to the Seller for all such duties and obligations of RWT
Holdings, Inc.
Section
11.15 Master
Servicer as Third Party Beneficiary
For
purposes of Sections 6.04, 6.05 and 12.02 related to the requirements for
deliver of Assessments of Compliance, Attestation Reports, Compliance
Statements, Back-Up SOX Certificates and additional monthly reporting
requirements, the Master Servicer shall be considered a third-party beneficiary
of this Agreement, entitled to all rights and benefits hereof as if it were
a
party to the Agreement.
ARTICLE
XII
WHOLE
LOAN TRANSFER; PASS-THROUGH TRANSFER
-41-
Exhibit
10.10
Section
12.01 Removal
of Mortgage Loans from Inclusion under this Agreement upon a
Whole Loan Transfer or a Pass-Through Transfer on One or more Reconstitution
Dates
The
Seller acknowledges and the Purchaser agrees that with respect to some or all
of
the Mortgage Loans, the Purchaser may effect either:
(1) one
or
more Whole Loan Transfers; and
(2) one
or
more Pass Through Transfers.
The
Seller shall cooperate with the Purchaser in connection with any Whole Loan
Transfer or Pass-Through Transfer contemplated by the Purchaser pursuant to
this
Section. In connection therewith, the Purchaser shall deliver any Reconstitution
Agreement or other document related to the Whole Loan Transfer or Pass Through
Transfer to the Seller at least 15 days prior to such transfer and the Seller
shall execute any Reconstitution Agreement which contains servicing provisions
substantially similar to those herein or otherwise reasonably acceptable to
the
Purchaser and the Seller and which restates the representations and warranties
contained in Section 3.01 as of the Reconstitution Date (except to the extent
any such representation or warranty is not accurate on such date) and Section
3.02 herein as of the Funding Date. In
addition, in connection with any Pass-Through Transfer, the Seller agrees:
(a)
to provide any information relating to the Mortgage Loans reasonably necessary
to assist in the preparation of any disclosure documents, (b) to provide
information relating to delinquencies and defaults with respect to the Seller’s
servicing portfolio (or such portion thereof as is similar to the Mortgage
Loans), (c) to enter into any other servicing, custodial or other similar
agreements, that are consistent with the provisions of this Agreement, and
which
contain such provisions as are customary in securitizations rated “AAA”
(including a securitization involving a REMIC or CMO) (a “Securitization”) and
(d) to provide such opinions of counsel as are customary in such transactions,
provided, however, that any opinion of outside counsel shall be provided at
the
Purchaser’s expense. In connection with such a Securitization, the Purchaser may
be required to engage a master servicer or trustee to determine the allocation
of payments to and make remittances to the certificateholders, at the
Purchaser’s sole cost and expense. In the event that a master servicer or
trustee is requested by the Purchaser to determine the allocation of payments
and to make remittances to the certificateholders, the Seller agrees to service
the Mortgage Loans in accordance with the reasonable and customary requirements
of such Securitization, which may include the Seller’s acting as a subservicer
in a master servicing arrangement. The
Purchaser hereby agrees to reimburse the Seller for reasonable “out-of-pocket”
expenses incurred by the Seller that relate to such Whole Loan Transfer or
Pass-Through Transfer, but not including reimbursement for the amount which
reasonably reflects time and effort expended by the Seller in connection
therewith. It is understood and agreed by Purchaser and Seller that the right
to
effectuate such Whole Loan Transfer or Pass-Through Transfer as contemplated
by
this Section 12.01 is limited to the Purchaser.
Any
prospective assignees of the Purchaser who have entered into a commitment to
purchase any of the Mortgage Loans in a Whole Loan Transfer may review and
underwrite the Seller’s servicing and origination operations, upon reasonable
prior notice to the Seller, and the Seller shall cooperate with such review
and
underwriting to the extent such prospective assignees request information or
documents that are reasonable available and can be produced without unreasonable
expense or effort. The Seller shall make the Mortgage Files related to the
Mortgage Loans held by the Seller available at the Seller’s principal operations
center for review by any such prospective assignees during normal business
hours
upon reasonable prior notice to the Seller (in no event less than five Business
Days’ prior notice). The Seller may, in its sole discretion, require that such
prospective assignees sign a confidentiality agreement with respect to such
information disclosed to the prospective assignee which is not available to
the
public at large and a release agreement with respect to its activities on the
Seller’s premises.
-42-
Exhibit
10.10
All
Mortgage Loans not sold or transferred pursuant to a Whole Loan Transfer or
Pass-Through Transfer shall be subject to this Agreement and shall continue
to
be serviced in accordance with the terms of this Agreement and with respect
thereto this Agreement shall remain in full force and effect.
Section12.02
Additional Requirements in Connection With Pass-Through Transfers.
(a)
The
Seller shall provide to the Master Servicer, no later than March 1 of each
year
in which the Trust is required to file a Form 10-K with the SEC in connection
with a Pass-Through Transfer, an Officer’s Certificate (a ”Back-Up Sox
Certification”) in the form of Exhibit
J
attached
hereto.
(b)
If so
requested by the Purchaser or any Depositor in connection with any Pass Through
Transfer, the Seller shall provide to the Purchaser such information regarding
the Seller, as servicer and originator of the Mortgage Loans, as is reasonably
requested for the purpose of compliance with Regulation AB.
(c)
If
Seller uses subcontractors, contractors or vendors that are determined to be
“participating in the servicing function” under this Agreement within the
meaning of Item 1122 of Regulation AB,, Seller shall so advise the Purchaser
and
agrees to provide to the Purchaser and to the Master Servicer such disclosures,
assessments of compliance, attestations, certifications and other documents
required by Regulation AB related to such subcontractors, contractors and
vendors.
(d)
Additional Monthly Reporting Requirements.
| i. |
The
Seller shall provide to the Master Servicer prompt notice of the
occurrence of any of the following: any event of default under the
terms
of this Agreement; any merger, consolidation or sale of substantially
all
of the assets of the Seller; the Seller’s engagement of any subservicer,
contractor or vendor to perform or assist in the performance of any
of the
Seller’s obligations under this Agreement; any material litigation
involving the Seller; and any affiliation or other significant
relationship between the Seller and other transaction
parties.
|
| ii. |
No
later than ten days prior to the deadline for the filing of any
Distribution Report that includes any of the Mortgage Loans serviced
by
the Seller, the Seller shall provide to 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 (as specified in the provisions of Regulation
AB referenced below):
|
-43-
Exhibit
10.10
| a. |
any
material changes to the definition or determination of delinquencies,
charge-offs and uncollectible accounts (Item 1121(a) (9) of Regulation
AB);
|
| b. |
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);
|
| c. |
material
breaches of pool asset representations or warranties or transaction
covenants (Item 1121(a) (12) of Regulation
AB);
|
| d. |
information
regarding new asset-backed security 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).
|
(e)
Additional Information. The Seller shall provide to the Master Servicer such
additional information as the Master Servicer may reasonably request, including
evidence of the authorization of the person signing any certification or
statement, financial information and reports, and such other information related
to the Seller or its performance hereunder.
(f)
Intention of the Parties and Interpretation. The Seller acknowledges and agrees
that the purpose of Subsections 11.20, 11.21 and this 12.02 is to facilitate
compliance by the Master Servicer and the Depositor with the provisions of
Regulation AB, as such may be amended from time to time and subject to
clarification and interpretive advice as may be issued by the staff of the
SEC
from time to time. Therefore, the Seller agrees that (a ) the obligations of
the
Seller hereunder shall be interpreted in such a manner as to accomplish that
purpose, (b) the Seller’s obligations hereunder will be supplemented and
modified as necessary to be consistent with any such amendments, interpretive
advice or guidance, convention or consensus among active participants in the
asset-backed securities markets, advice of counsel, or otherwise in respect
of
the requirements of Regulation AB, (c) the Seller shall comply with requests
made by the Master Servicer or the Depositor for delivery of additional or
different information as the Master Servicer or the Depositor may determine
in
good faith is necessary to comply with the provisions of Regulation AB, and
(d)
no amendment of this Agreement shall be required to effect such changes in
the
Seller’s obligations as are necessary to accommodate evolving interpretations of
the provisions of Regulation AB.
(g)
Indemnification. The Seller shall indemnify and hold harmless the Purchaser
and
the Master Servicer and each of its directors, officers, employees, agents
and
affiliates from and against any and all claims, losses, damages, penalties,
fines, forfeitures, reasonable legal fees and related costs, judgments and
other
costs and expenses arising out of or based upon (i) any breach by the Seller
of
any of its obligations hereunder, including particularly its obligations to
provide any Compliance Statement, Assessment of Compliance, Attestation Report
or any information, data or materials required to be included in any Exchange
Act report; (ii) any misstatement or omission in any information data or
materials provide by the Seller hereunder; or (iii) the negligence, bad faith
or
willful misconduct of the Seller in connection with its performance hereunder.
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
any claims, losses, damages or liabilities incurred by Master Servicer in such
proportion as is appropriate to reflect the relative fault of Master Servicer
on
one hand and the Seller on the other. The indemnification in this subsection
shall survive the termination of this Agreement or the termination of any party
to this Agreement.
-44-
Exhibit
10.10
(h)
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
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
information provided by Seller.
12.03
Confidentiality
and Customer Information Security.
All of
the information and/or documentation, including any customer information of
either party (the “Information”), disclosed by either party to the other party
under the terms of this Agreement, except such Information as may be generally
available to the public or to the finance or insurance industry, is and will
be
kept confidential unless its disclosure is required by law or is required to
be
submitted to the state or federal regulatory supervisors of either party. Such
Information will be used by the party receiving the Information solely for
the
purposes for which the Information is provided. Further, in accordance with
the
requirements of the Interagency Guidelines Establishing Standards for
Safeguarding Customer Information promulgated under section 39 of the Federal
Deposit Insurance Act and sections 501 and 505(b) of the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
Act,
each party agrees, as applicable, to implement appropriate Information security
measures, including disaster recovery measures, to meet the objectives of the
Guidelines, and that the party providing the Information has the right to review
audits, summaries of test results, or other equivalent evaluations of the party
receiving the Information, or to conduct the same, in order to insure that
the
party receiving the Information is meeting the objectives of the Guidelines.
All
of the provisions of this Paragraph shall survive the termination of this
Agreement.
-45-
Exhibit
10.10
IN
WITNESS WHEREOF, the Seller and the Purchaser have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of
the
day and year first above written.
GREENPOINT
MORTGAGE FUNDING INC., Seller
By:
Name:
Title:
RWT
HOLDINGS, INC.,
Purchaser
By:
Name:
Title:
REDWOOD
TRUST, INC.,
Guarantor
By:
Name:
Title:
-46-
EXHIBIT
A
CONTENTS
OF MORTGAGE FILES
With
respect to each Mortgage Loan, the Mortgage File shall include each of the
following items (except the items delivered to the Custodian pursuant to Section
2.03), all of which shall be available for inspection by the Purchaser and
which
may be retained in microfilm, microfiche, optical storage or magnetic media
in
lieu of hard copy:
1. A
copy of
the Mortgage Note endorsed, “Pay to the order of _________________-__, without
recourse” and signed in the name of the Seller by an authorized officer. Such
signature may be an original signature or a facsimile signature of such officer.
If the Mortgage Loan was acquired by the Seller in a merger, the endorsement
must be by “GreenPoint Mortgage Funding, Inc., successor by merger to [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 “GreenPoint
Mortgage Funding, Inc., formerly known as [previous name]”. The Mortgage Note
shall include all intervening endorse-ments showing a complete chain of title
from the originator to the Seller.
2. The
original Mortgage, or a copy of the Mortgage with evidence of recording thereon
certified by the appropriate recording office to be a true copy of the recorded
Mortgage, or, if the original Mortgage has not yet been returned from the
recording office, a copy of the original Mortgage together with a certificate
of
a duly authorized representative of the Seller (which certificate may consist
of
stamped text appearing on such copy of the Mortgage), the closing attorney
or an
officer of the title insurer which issued the related title insurance policy,
certifying that the copy is a true copy of the original of the Mortgage which
has been transmitted for recording in the appropriate recording office of the
jurisdiction in which the Mortgaged Property is located.
3. Unless
the Mortgage Loan is registered on the MERS System, the Assignment of Mortgage,
executed in blank, but otherwise in form and substance acceptable for recording;
provided, however, that certain recording information will not be available
if,
as of the Funding Date, the Seller has not received the related Mortgage from
the appropriate recording office. If the Mortgage Loan was acquired by the
Seller in a merger, the assignment must be by “GreenPoint Mortgage Funding,
Inc., successor by merger to [name of predecessor]”; and if the Mortgage Loan
was acquired or originated by the Seller while doing business under another
name, the assignment must be by “GreenPoint Mortgage Funding, Inc., formerly
known as [previous name]”.
4. The
original policy of title insurance or, if such insurance is in force but the
original policy of title insurance has not been delivered to the Seller by
the
issuing title insurer, the report of title insurance or other evidence of title
insurance generally acceptable to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac or, if the Mortgage
Loan is the subject of a ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac approved master title
insurance policy, a certified copy of the certificate of title insurance issued
thereunder.
5. Originals
or certified true copies from the appropriate recording offices of all
assumption and modification agree-ments, if any or if the original has not
yet
been returned from the recording office, a copy of such original certified
by
the Seller.
6. Originals,
or certified true copies from the appropriate recording offices, of any
intervening assignments of the ▇▇▇▇-▇▇▇▇ with evidence of recording thereon,
or,
if the original intervening assignment has not yet been returned from the
recording office, a certified copy of such assignment.
7. The
original Primary Insurance Policy, if any, or, if the Primary Insurance Policy
has been issued but the original thereof has not been delivered to the Seller
by
the issuer thereof, a copy of the Primary Insurance Policy certified by a duly
authorized officer of the Seller to be a true, complete and correct copy of
the
original, which certification may be in the form of a blanket certification
relating to more than one Mortgage Loan.
8. Original
hazard insurance policy or a binder evidencing such coverage and, if required
by
law, flood insurance policy, with extended coverage of the hazard insurance
policy, unless the Mortgage Loan is the subject of a blanket mortgage impairment
insurance policy meeting the requirements of Section 4.11 of the
Agreement.
9. Mortgage
Loan closing statement (Form HUD-1 or HUD-1A).
10. Residential
loan application.
11. Credit
report on the Mortgagor.
12. Residential
appraisal report, if applicable.
13. Photograph
of the property, if applicable.
-2-
EXHIBIT
B
CUSTODIAL
ACCOUNT LETTER AGREEMENT
To:
_____________________________________
_____________________________________
_____________________________________
(the
“Depository”)
As
“Seller” under the Mortgage Loan Flow Purchase, Sale and Servicing Agreement,
dated as of _____________, ______________ Mortgage Loans, Group No. ______
(the
“Agree-ment”), we hereby authorize and request you to establish an account, as a
Custodi-al Account pursuant to Section 4.04 of the Agreement, to be designated
as “GreenPoint Mortgage Funding, Inc., in trust for the Purchaser as indicated
on GreenPoint Mortgage Funding, Inc.’s records and various Mortgagors.” All
deposits in the account shall be subject to withdrawal therefrom by order signed
by the Seller. This letter is submitted to you in duplicate. Please execute
and
return one original to us.
GreenPoint
Mortgage Funding, Inc.
By
The
undersigned, as “Depository”, hereby certifies that the above described account
has been established under Account Number ___________________, at the office
of
the Depository indi-cated above, and agrees to honor withdrawals on such account
as provided above. The amount deposited at any time in the account will be
insured by the Federal Deposit Insurance Corpora-tion to the extent available
under applicable law.
(name
of
Depository)
By
EXHIBIT
C
ESCROW
ACCOUNT LETTER AGREEMENT
To:
_____________________________________
_____________________________________
_____________________________________
(the
“Depository”)
As
“Seller” under the Mortgage Loan Flow Purchase, Sale and Servicing Agreement,
dated as of _____________, __________ Mortgage Loans, Group No. ______ (the
“Agree-ment”), we hereby authorize and request you to certify that an account
exists titled “GreenPoint Mortgage Funding, Inc., in trust for the Purchaser as
indicated on GreenPoint Mortgage Funding, Inc.’s records and various
mortgagors.” All deposits in the account shall be subject to withdrawal
therefrom by order signed by the Seller. This letter is submitted to you in
duplicate. Please execute and return one original to us.
GreenPoint
Mortgage Funding, Inc.
By
The
undersigned, as “Depository”, hereby certifies that the above described account
has been established under Account Number ___________________, at the office
of
the Depository indi-cated above, and agrees to honor withdrawals on such account
as provided above. The amount deposited at any time in the account will be
insured by the Federal Deposit Insurance Corpora-tion to the extent available
under applicable law.
(name
of
Depository)
By
EXHIBIT
D
CUSTODIAL
AGREEMENT
EXHIBIT
E
MORTGAGE
LOAN SCHEDULE
EXHIBIT
F
FORM
OF
MONTHLY REMITTANCE STATEMENT
EXHIBIT
G
UNDERWRITING
STANDARDS
EXHIBIT
H
FORM
OF
WARRANTY ▇▇▇▇ OF SALE
On
this
_______ day of ________, 200__, [Greenpoint Mortgage Funding, Inc.] ("Seller")
as the Seller under that certain Mortgage Loan Flow Purchase, Sale &
Servicing Agreement, dated as of January 1, 2006 (the "Agreement") does hereby
sell, transfer, assign, set over and convey to RWT Holdings, 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 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 2.01 of the Agreement, the
Seller has delivered to the Purchaser or its custodian a portion of each
Mortgage File for each Mortgage Loan to be purchased as set forth in the
Agreement. The contents of each related Mortgage File required to be retained
by
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 Seller for the
benefit of the Purchaser as the owner thereof. Seller's possession of any
portion of each such Mortgage 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 Seller shall be in a custodial
capacity only. The ownership of each Mortgage Note, Mortgage, and the contents
of the Mortgage 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 Seller shall immediately vest in the Purchaser
and
shall be retained and maintained, in trust, by Seller at the will of the
Purchaser in such custodial capacity only.
The
Seller confirms to the Purchaser that the representations and warranties set
forth in Sections 3.01, and 3.02 of the Agreement are true and correct as of
the
date hereof
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:
EXHIBIT
I
FORM
OF
ASSESSMENT OF COMPLIANCE
To
RWT
Holdings and [Master Servicer]
Re: Residential
Mortgage Loans (including first and second lien, closed-end and revolving
balance HELOC mortgage loans
As
of and
for the year ended December 31, [ ], the undersigned officer(s) of Greenpoint
Mortgage Funding, Inc.
hereby
certify as follows:
| 1. |
Greenpoint
Mortgage Funding, Inc.
is
responsible for assessing compliance with the servicing criteria
applicable to it (as identified in Appendix A hereto) for this asset
class;
|
| 2. |
Greenpoint
Mortgage Funding, Inc.
used the criteria listed in paragraph (d) of Section 229.1122 of
Regulation AB to assess compliance with the applicable servicing
criteria;
|
| 3. |
[Except
as described below,] Greenpoint
Mortgage Funding, Inc.
has complied, in all material respects, with the applicable servicing
criteria for this asset class; and
|
[DESCRIBE
ANY MATERIAL INSTANCE OF NONCOMPLIANCE]
| 4. |
a
registered public accounting firm has issued an attestation report
on
Greenpoint
Mortgage Funding, Inc.’s
compliance with the applicable servicing criteria.
|
Signature
Name:
Title:
Signature
Name:
Title:
[Date]
Schedule
1122 to Exhibit I
SERVICING
CRITERIA
NOTE:
The
criteria shown with a checked box þ
are
applicable
to
Greenpoint Mortgage Funding, Inc.’s duties under any transaction agreement for
any loans covered by this Servicer’s Report. Criteria shown with a blank box
¨
are
inapplicable
to this
servicer.
| (A) |
General
Servicing
Considerations
|
þ Policies
and procedures are instituted to monitor any performance or other triggers
and
events of default in accordance with transaction agreements.
þ If
any
material servicing activities are outsourced to third parties, policies and
procedures are instituted to monitor the third party’s performance and
compliance with such servicing activities.
þ Any
requirements in the transaction agreements to maintain a back-up servicer for
the pool assets are maintained.
þ A
fidelity bond and errors and omissions policy is in effect on the party
participating in the servicing function throughout the reporting period in
the
amount of coverage required by and otherwise in accordance with the terms of
the
transaction agreements.
| (B) |
Cash
Collection and
Administration
|
þ Payments
on pool assets are deposited into the appropriate custodial bank accounts and
related bank clearing accounts no more than two business days of receipt, or
such other number of days specified in the transaction agreements.
þ Disbursements
made via wire transfer on behalf of an obligor or to an investor are made only
by authorized personnel.
þ Advances
of funds or guarantees regarding collections, cash flows or distributions,
and
any interest or other fees charged for such advances, are made reviewed and
approved as specified in the transaction agreements.
þ The
related accounts for the transaction, such as cash reserve accounts or accounts
established as a form of overcollateralization, are separately maintained
(e.g.,
with
respect to commingling of cash) as set forth in the transaction
agreements.
þ 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
Section 240.13k-1(b)(1) of Regulation AB.
-1-
þ Unissued
checks are safeguarded so as to prevent unauthorized access.
þ Reconciliations
are prepared on a monthly basis for all asset-backed securities related bank
accounts, including custodial accounts and related bank clearing accounts.
These
reconciliations:
| (A) |
Are
mathematically accurate;
|
| (B) |
Are
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction
agreements;
|
| (C) |
Are
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.
|
(C)
Investor remittances and reporting
¨ Reports
to investors, including those to be filed with the Securities Exchange
Commission (the “Commission”), are maintained in accordance with the transaction
agreements and applicable Commission requirements. Specifically, such
reports:
(A)
Are
prepared in accordance with timeframes and other terms set forth in the
transaction agreements;
(B)
Provide information calculated in accordance with the terms specified in the
transaction agreements;
(C)
Are
filed with the Commission as required by its rules and regulations; and
(D)
Agree
with investors’ or the trustee’s records as to the total unpaid principal
balance and number of pool assets serviced by the servicer.
-2-
¨ Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
¨ Disbursements
made to an investor are posted within two business days to the servicer’s
investor records, or such other number of days specified in the transaction
agreements.
¨ Amounts
remitted to investors per the investor reports agree with cancelled checks,
or
other form of payment or custodial bank statements.
(D)
Pool Asset Administration
þ Collateral
or security on pool assets is maintained as required by the transaction
agreements or related pool asset documents.
þ Pool
assets and related documents are safeguarded as required by the transaction
agreements.
þ Any
additions, removals or substitutions to the asset pool are made, reviewed and
approved in accordance with any conditions or requirements in the transaction
agreements.
þ Payments
on pool assets, including any payoffs, made in accordance with the related
pool
asset documents are posted to the applicable servicer’s obligor records
maintained no more than two business days after receipt, or such other number
of
days specified in the transaction agreements, and allocated to principal,
interest or other items (e.g.,
escrow) in accordance with the related asset documents.
þ Greenpoint
Mortgage Funding, Inc.’s records regarding the pool assets agree with the
servicer’s records with respect to an obligor’s unpaid principal
balance.
þ Changes
with respect to the terms or status of an obligor’s pool asset (e.g.,
loan
modifications or re-agings) are made, reviewed and approved by authorized
personnel in accordance with the transaction agreements and related pool asset
documents.
-3-
þ Loss
mitigation or recovery actions (e.g.
forbearance plans, modifications and deeds in lieu of foreclosure, foreclosures
and repossessions, as applicable) are initiated, conducted and concluded in
accordance with the timeframes or other requirements established by the
transaction agreements.
þ Records
documenting collection efforts are maintained during the period a pool asset
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 Greenpoint Mortgage Funding, Inc.’s
activities in monitoring delinquent pool assets including, for example, phone
calls, letters and payment rescheduling plans in cases where delinquency is
deemed temporary (e.g.,
illness or unemployment).
þ Adjustments
to interest rates or rates of return for pool assets with variable rates are
computed based on the related pool asset documents.
þ Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A)
Such
funds are analyzed, in accordance with the obligor’s pool asset 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 pool asset documents and state laws; and
(C)
Such
funds are returned to the obligor within 30 calendar days of full repayment
of
the related pool asset, or such other number of days specified in the
transaction agreements.
þ 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 Greenpoint Mortgage Funding, Inc. at least 30 calendar days prior to these
dates, or such other number of days specified in the transaction
agreements.
þ Any
late
payment penalties in connection with any payment to be made on behalf of an
obligor are paid from Greenpoint Mortgage Funding, Inc.’s funds and not charged
to the obligor, unless the late payment was due to obligor’s error or
omission.
-4-
þ Disbursements
made on behalf of an obligor are posted within two business days to the
obligor’s records maintained by Greenpoint Mortgage Funding, Inc., or such other
number of days specified in the transaction agreements.
þ Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded in accordance
with the transaction agreements.
þ Any
external enhancement or other support, identified in Item 1114(a)(1) through
(3)
or Item 1115 of Regulation AB, is maintained as set forth in the transaction
agreements.
-5-
EXHIBIT
J
FORM
OF BACK-UP SOX CERTIFICATION
Re:
Mortgage Loan Flow Purchase, Sale and Servicing Agreement dated and effective
as
of January 1, 2006 among RWT Holdings, Inc. (the “Purchaser”), Greenpoint
Mortgage Funding, Inc. (“Seller”), and Redwood Trust, Inc. (“Guarantor”)(the
“Agreement”)
I,
[identify the certifying individual], certify to the Purchaser and to the Master
Servicer and their officers, directors and affiliates, and with the knowledge
and intent that they will rely upon this certification, that:
| 1. |
Based
on my knowledge, the servicing information required to be provided
to the
Master Servicer and the Trustee by the Servicer under the Pooling
and
Servicing Agreement has been so
provided;
|
| 2. |
I
am responsible for reviewing the activities performed by the Servicer
under the Pooling and Servicing Agreement and based upon my knowledge
and
the annual compliance review required under the Pooling and Servicing
Agreement, and except as disclosed in the Annual Compliance Statement,
Annual Assessment of Compliance and the Annual Attestation Report
delivered to the Master Servicer in accordance with the terms of
the
Pooling and Servicing Agreement, the Servicer has, as of the date
of this
certification, fulfilled its obligations under the Pooling and Servicing
Agreement:
|
| 3. |
Based
on my knowledge, the information in the Annual Compliance Statement,
the
Annual Assessment of Compliance, the Annual Attestation and all servicing
reports, officer’s certificates and other information relating to the
servicing of the Mortgage Loans submitted to the Master Servicer
, to the
extent included in or relied upon in connection with any information
included in any Form 8-Ks, Form 10-Ds, Form 10-Ks or similar forms
required by the Securities and Exchange Commission (the “SEC”) from time
to time, or incorporated by reference in any prospectus filed with
the
SEC, for the period covered by the Annual Assessment of Compliance,
taken
as a whole, does not contain any untrue statement of a material fact
or
omit to state a material fact necessary to make the statements made,
in
light of the circumstances under which such statements were made,
not
misleading as of the date of this
certification;
|
| 4. |
I
am responsible for reviewing the activities performed by the Seller
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 Assessment of Compliance
or the
Attestation Report, Seller has fulfilled its obligations under the
Agreement in all material respects.
|
| 5. |
The
Compliance Statement, the Assessment of Compliance and Attestation
Report
required to be provided by the Seller pursuant to the Agreement,
have been
provided to the [Purchaser][Master Servicer]. Any material instances
of
noncompliance described in such reports have been disclosed to the
[Purchaser][Master Servicer].Any material instance of noncompliance
has
been disclosed in such reports
|
Date:__________________________
_____________________________
[Signature]
[Title]
-2-
GREENPOINT
- SEQUOIA TO TRUSTEE
ASSIGNMENT,
ASSUMPTION AND RECOGNITION AGREEMENT
For
Mortgage
Loan Flow Purchase, Sale and Servicing Agreement
THIS
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT, dated as of August 30, 2007
(the “Assignment”), is entered into among Sequoia Residential Funding, Inc. (the
“Assignor”), GreenPoint Mortgage Funding, Inc., as the seller (“Seller”) and the
servicer (the “Servicer”), and HSBC Bank USA, National Association ("HSBC Bank")
as Trustee under a Pooling and Servicing Agreement dated as of August 1, 2007
(the “Pooling and Servicing Agreement”), among the Assignor, as Depositor, HSBC
Bank (in such Trustee capacity, the “Assignee”) and ▇▇▇▇▇ Fargo Bank, N. A., as
Master Servicer and Securities Administrator.
RECITALS
WHEREAS,
RWT Holdings, Inc. (“RWT”), the Seller and the Servicer and Redwood Trust, Inc.,
as Guarantor, have entered into a certain Mortgage Loan Flow Purchase, Sale
& Servicing Agreement, dated as of January 1, 2006 (the “Flow Purchase and
Servicing Agreement”), and pursuant to the Purchase Price and Terms Letter(s)
and Warranty ▇▇▇▇(s) of Sale issued under the Flow Purchase and Servicing
Agreement and listed in Appendix
A
hereto
(the “Purchase Price and Terms Letter(s)” and “▇▇▇▇(s) of Sale,” respectively,
and, together with the Flow Purchase and Servicing Agreement, the “Agreements”)
RWT has acquired from the Seller certain Mortgage Loans (the “Mortgage Loans”)
and the Servicer has agreed to service such Mortgage Loans; and
WHEREAS,
RWT has previously sold, assigned and transferred all of its right, title and
interest in certain of the Mortgage Loans (the “Specified Mortgage Loans”) which
are listed on the mortgage loan schedule attached as Exhibit
I
hereto
(the “Specified Mortgage Loan Schedule”) and certain rights under the Agreements
with respect to the Specified Mortgage Loans to Assignor; and
WHEREAS,
the parties hereto have agreed that the Specified Mortgage Loans shall be
subject to the terms of this Assignment.
NOW,
THEREFORE, in consideration of the mutual promises contained herein and other
good and valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties agree as follows:
1. Assignment
and Assumption.
(a) Effective
on and as of the date hereof, the Assignor hereby pledges, assigns and transfers
to the Assignee all of its right, title and interest in the Specified Mortgage
Loans and all of its rights (but none of the Purchaser’s obligations) provided
under the Agreements to the extent relating to the Specified Mortgage Loans,
the
Assignee hereby accepts such assignment from the Assignor, and the Seller and
the Servicer hereby acknowledge such assignment and assumption.
-3-
(b) Effective
on and as of the date hereof, the Assignor represents and warrants to the
Assignee that the Assignor has not taken any action that would serve to impair
or encumber the Assignee’s interest in the Specified Mortgage Loans since the
date of the Assignor’s acquisition of the Specified Mortgage Loans.
2. Recognition
of the Assignee.
From
and
after the date hereof, subject to Section 3 below, the Seller and the Servicer
shall recognize the Assignee as the holder of the rights and benefits of the
Purchaser with respect to the Specified Mortgage Loans and the Servicer will
service the Specified Mortgage Loans for the Assignee as if the Assignee and
the
Servicer had entered into a separate servicing agreement for the servicing
of
the Specified Mortgage Loans in the form of the Agreements (as amended hereby)
with the Assignee as the Purchaser thereunder, the terms of which Agreements
are
incorporated herein by reference and amended hereby. It is the intention of
the
parties hereto that this Assignment will be a separate and distinct agreement,
and the entire agreement, between the parties hereto to the extent of the
Specified Mortgage Loans and shall be binding upon and for the benefit of the
respective successors and assigns of the parties hereto.
3. Assignor’s
Continuing Rights and Responsibilities.
Notwithstanding
Sections 1 and 2 above, the parties hereto agree that the Assignor rather than
the Assignee shall have the ongoing rights to take action and the
responsibilities of the Purchaser under the following sections of the
Agreements:
Flow
Purchase and Servicing Agreement:
|
Section
|
Matter
|
|
2.05
|
(a)
First Payment Default; Early Full Principal Prepayment.
|
|
3.03,
1st¶
|
(b) Repurchase
and Substitution.
|
|
4.01,
2nd¶
|
(c) Seller
to Act as Servicer.
|
|
4.02
|
(d) Liquidation
of Mortgage Loans; Servicing
Advances
and Foreclosure.
|
|
4.14,
3rd¶
|
(e) Title,
Management and Disposition of REO Property.
|
|
6.06
|
(f) Purchaser’s
Right to Examine Seller Records.
|
|
7.01
|
(g) Seller
Shall Provide Access and Information as
Reasonably
Required.
|
|
7.02,
2nd¶
|
(h) Financial
Statements.
|
|
8.01
|
(i) Indemnification;
Third Party Claims.
|
|
8.03
|
(j) Seller
Not to Resign.
|
-4-
In
addition, the Servicer agrees to furnish to the Assignor and the Master Servicer
copies of reports, notices, statements and other communications required to
be
delivered by the Servicer pursuant to any of the sections of the Agreements
referred to above and under the following sections, at the times therein
specified:
Flow
Purchase and Servicing Agreement:
|
Section
|
|
|
4.09
|
(a) Transfer
of Accounts.
|
|
5.02
|
(b) Statements
to the Purchaser.
|
|
6.04
|
(c) Annual
Compliance Statement.
|
|
6.05
|
(d) Annual
Assessment of Compliance and Attestation Report.
|
|
12.02(a)
|
(e)
Additional Requirements in Connection With Pass-Through
Transfers.
|
4. Amendment
to the Agreements.
The
Agreements are hereby amended as set forth in Appendix
B
hereto
with respect to the Specified Mortgage Loans.
5. Representations
and Warranties.
(a) Each
of
the parties hereto represents and warrants that it is duly and legally
authorized to enter into this Assignment.
(b) Each
of
the parties hereto represents and warrants that this Assignment has been duly
authorized, executed and delivered by it and (assuming due authorization,
execution and delivery thereof by each of the other parties hereto) constitutes
its legal, valid and binding obligation, enforceable against it in accordance
with its terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement
of
creditors’ rights generally and by general equitable principles (regardless of
whether such enforcement is considered in a proceeding in equity or at
law).
-5-
6. Continuing
Effect.
Except
as
contemplated hereby, the Agreements shall remain in full force and effect in
accordance with its terms. This Assignment constitutes a Reconstitution
Agreement as contemplated in Article XII of the Flow Purchase and Servicing
Agreement and the Reconstitution Date shall be the date hereof with respect
to
the Specified Mortgage Loans listed on Exhibit
I
on the
date hereof.
7. Governing
Law.
This
Assignment and the rights and obligations hereunder shall be governed by and
construed in accordance with the internal laws of the State of New
York.
8. Notices.
Any
notices or other communications permitted or required under the Agreements
to be
made to the Assignor and Assignee shall be made in accordance with the terms
of
the Agreements and shall be sent to the Assignor and Assignee as follows:
Sequoia
Residential Funding, Inc.
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
HSBC
Bank
USA, National Association
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
Corporate Trust & Loan Agency
or
to
such other address as may hereafter be furnished by the Assignor or Assignee
to
the other parties in accordance with the provisions of the
Agreements.
9. Counterparts.
This
Assignment may be executed in counterparts, each of which when so executed
shall
be deemed to be an original and all of which when taken together shall
constitute one and the same instrument.
10. Definitions.
Any
capitalized term used but not defined in this Assignment has the same meaning
as
in the Agreements.
-6-
11. Master
Servicer.
The
Seller and the Servicer hereby acknowledges that the Assignee has appointed
▇▇▇▇▇ Fargo Bank, N. A. (the “Master Servicer”) to act as master servicer and
securities administrator under the Pooling and Servicing Agreement and hereby
agrees to treat all inquiries, instructions, authorizations and other
communications from the Master Servicer as if the same had been received from
the Assignee. The Master Servicer, acting on behalf of the Assignee, shall
have
the rights of the Assignee as the Purchaser under the Agreements to enforce
the
obligations of the Servicer thereunder. Any notices or other communications
permitted or required under the Agreements to be made to the Assignee shall
be
made in accordance with the terms of the Agreements and shall be sent to the
Master Servicer at the following address:
▇▇▇▇▇
Fargo Bank, N. A.
▇.▇.
▇▇▇ ▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(or,
for overnight deliveries, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇)
Attention:
Sequoia Mortgage Trust 2007-4
or
to
such other address as may hereafter be furnished by the Master Servicer to
Servicer. Any such notices or other communications permitted or required under
the Agreements may be delivered in electronic format unless manual signature
is
required in which case a hard copy of such report or communication shall be
required.
The
Seller and the Servicer further acknowledges that the Assignor has engaged
the
Master Servicer to provide certain default administration and that the Master
Servicer, acting as agent of the Assignor, may exercise any of the rights of
the
Purchaser retained by the Assignor in Section 3 above.
The
Servicer shall make all distributions under the Agreements, as they relate
to
the Specified Mortgage Loans, to the Master Servicer by wire transfer of
immediately funds to:
▇▇▇▇▇
Fargo Bank, NA
San
Francisco, CA
ABA#
▇▇▇-▇▇▇-▇▇▇
Acct#
▇▇▇▇▇▇▇▇▇▇
Acct
Name: SAS Clearing
FFC:
53173800
12. Successors
and Assigns.
Upon
a
transfer of the Specified Mortgage Loans by the Assignee (other than in respect
of repurchases pursuant to Section 2.01, Section 2.05 or Section 7.03 of the
Flow Purchase and Servicing Agreement) to a buyer (“buyer”), such transfer shall
constitute a Reconstitution subject to the terms of Article XII of the Flow
Purchase and Servicing Agreement. Upon the closing of such transfer, the rights
and obligations of Purchaser retained by the Assignor pursuant to this
Assignment shall automatically terminate and the buyer shall be deemed to
possess all of the rights and obligations of Purchaser under the Flow Purchase
and Servicing Agreement, provided,
however,
that the
Assignor shall remain liable for any obligations as Purchaser arising from
or
attributable to the period from the date hereof to the closing date of such
transfer.
[remainder
of page intentionally left blank]
-7-
IN
WITNESS WHEREOF, the parties hereto have executed this Assignment the day and
year first above written.
ASSIGNOR:
SEQUOIA
RESIDENTIAL FUNDING, INC.
By:
Name:
Title:
ASSIGNEE:
HSBC
BANK
USA, NATIONAL
ASSOCIATION
By:
Name:
Title:
SELLER:
GREENPOINT
MORTGAGE FUNDING, INC.
By:
Name:
Title:
SERVICER:
GREENPOINT
MORTGAGE FUNDING, INC.
By:
Name:
Title:
-8-
EXHIBIT
I
APPENDIX
A
|
Purchase
Price and Terms Letter(s)
|
Warranty
▇▇▇▇(s) of Sale
|
|
|
|
||
|
3/29/06
|
||
|
4/13/06
|
||
|
12/01/06
|
||
|
4/11/07
|
||
|
4/25/07
|
||
|
7/03/07
|
||
|
8/03/07
|
||
APPENDIX
B
1. The
definition of “Business Day” is hereby revised to read as follows:
“Business
Day”: Any day other than (i) a Saturday or Sunday, or (ii) a day on which
banking or savings and loan institutions in the States of New York, Maryland
or
Minnesota are authorized or obligated by law or executive order to be
closed.
2. Notwithstanding
anything to the contrary in the Agreements, any Custodial Accounts established
by the Servicer pursuant to Section 4.04 of the Flow Purchase and Servicing
Agreement shall qualify as Eligible Accounts as defined in the Pooling and
Servicing Agreement.
3. Notwithstanding
anything to the contrary in the Agreements, the definition of Eligible
Investments is hereby deleted in its entirety and replaced by the definition
of
Permitted Investments from the Pooling and Servicing Agreement.
4. Section
3.02 is hereby revised to add the following representations and warranties
to
the end of such section:
“(xxx)
No
Mortgage Loan was originated on or after October 1, 2002 and prior to March
7,
2003, which is secured by property located in the State of Georgia. No Mortgage
Loan originated on or after March 7, 2003is a “high cost home loan” as defined
under the Georgia Fair Lending Act, which became effective October 1, 2002;
(xxxi) Each
Mortgage Loan at the time it was made complied in all material respects with
applicable local, state, and federal laws, including, but not limited to, all
applicable predatory and abusive lending laws;
(xxxii) At
the
time it was originated, none of the mortgage loans were High Cost as defined
by
the applicable local, state and federal predatory and abusive lending laws
and
at the time of origination no mortgage loan was a “high cost” or “covered”
mortgage loan, as applicable (as such terms are defined in the then current
Standard and Poor’s LEVELS Glossary);
(xxxiii)
No Mortgage Loan which is secured by property located in the State of New Jersey
and which was originated after the effective date of the New Jersey Home
Ownership Act of November 27, 2003 (the “New Jersey Act”) is a “High-Cost Home
Loan” as defined in the New Jersey Act;
(xxxiv)
No
Mortgage Loan which is secured by property located in the State of New Mexico
and which was originated after the effective date of New Mexico Home Loan
Protection Act, effective January 1, 2004 (the “New Mexico Act”), is a
“High-Cost Home Loan” as defined in the New Mexico Act;
(xxxv) No
Mortgage Loan which is secured by property located in the State of Kentucky
and
which was originated after the effective date of the Kentucky House ▇▇▇▇ 287,
effective June 24, 2003 (the “Kentucky Act”), is a “High-Cost Home Loan” as
defined in the Kentucky Act;
(xxxvi) No
Mortgage Loan which is secured by property located in the Commonwealth of
Massachusetts and which was originated after the effective date of the
Massachusetts Predatory Home Loan Practices Act (Mass. ▇▇▇. Laws ch. 183C),
effective November 7, 2004 (the “Massachusetts Act”), is a "High Cost Home
Mortgage Loan" as defined in the Massachusetts Act;
(xxxvii) No
Mortgage Loan that is secured by property located in the State of Illinois
and
that was originated after the effective date of the Illinois High Risk Home
Loan
Act effective January 1, 2004 (815 Ill. Comp. Stat. 137/1 et seq.) (the
“Illinois Act”), is a "High-Risk Home Loan" as defined in the Illinois Act; and
none of the Mortgage Loans that are secured by property located in the State
of
Illinois and that were originated after the effective date of the Illinois
Interest Act are in violation of the provisions of the Illinois Interest Act
(815 Ill. Comp. Stat. 205/1 et. seq.);
(xxxviii) No
Mortgage Loan that is secured by property located in the State of Indiana and
that was originated after the effective date of Indiana’s Home Loan Practices
Act (I.C. 24-9), effective January 1, 2005 (the “Indiana Act”), is a "High Cost
Home Loan" as defined in the Indiana Act;
(xxxix)
(xl) None
of
the proceeds of any Mortgage Loan were used to finance the purchase of single
premium credit insurance policies; and
(xli) No
Mortgage Loan contains prepayment penalties that extend beyond five years after
the date of origination.”
5. Section
4.13 is amended to add the following at the end of such section:
“The
Seller shall provide to the Purchaser, any Master Servicer and any Depositor,
copies or other evidence of the Fidelity Bond and errors and omissions insurance
policy upon request.”
6. New
definitions are added in their proper alphabetical order:
“Code”:
The Internal Revenue Code of 1986, as the same may be amended from time to
time
(or any successor statute thereto.
“REMIC”:
A “real estate mortgage investment conduit” within the meaning of Section 860D
of the Code.
“REMIC
Provisions”: Provisions of the federal income tax law relating to a REMIC, which
appear at Section 860A through 860G of Subchapter M of Chapter 1, Subtitle
A of
the Code, and related provisions and regulations promulgated thereunder, as
the
foregoing may be in effect from time to time.
“Servicing
Criteria”: The “servicing criteria” set forth in Item 1122(d) of Regulation AB,
as such may be amended from time to time.
“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.
7. Section
3.03 is revised to add a new paragraph at the end of such section:
“In
the
event that any Mortgage Loan is held by a REMIC, notwithstanding any contrary
provision of this Agreement, with respect to any Mortgage Loan that is not
in
default or as to which no default is imminent Purchaser may, in connection
with
any repurchase or substitution of a Deleted Mortgage Loan, pursuant to this
Section 3.03, require that the Seller deliver, at the Seller’s expense, an
Opinion of Counsel to the effect that such repurchase or substitution will
not
(i) result in the imposition of taxes on ‘prohibited transactions’ of such REMIC
(as defined in Section 869 of the Code) or otherwise subject the REMIC to tax,
or (ii) cause the REMIC to fail to qualify as a REMIC at any time.”
8. Section
4.14 is revised to add new paragraphs at the end of such section:
“The
REO
Property must be sold within three years following the end of the calendar
year
of the date of acquisition if a REMIC election has been made with respect to
the
arrangement under which the Mortgage Loans and REO Property are held, unless
(i)
the Purchasers shall have been supplied with an Opinion of Counsel (at the
Company’s expense) to the effect that the holding by the related trust of such
Mortgage Property subsequent to such three-year period (and specifying the
period beyond such three-year period for which the Mortgaged Property may be
held) will not result in the imposition of taxes on “prohibited transactions” of
the related trust as defined in Section 860F of the Code, or cause the related
REMIC to fail to qualify as a REMIC, in which case the related trust may
continue to hold such Mortgage Property (subject to any conditions contained
in
such Opinion of Counsel), or (ii) the Purchaser (at the Seller’s expense) or the
Seller shall have applied for, prior to the expiration of such three-year
period, an extension of such three-year period in the manner contemplated by
Section 856(e)(3) of the Code, in which case the three-year period shall be
extended by the applicable period. If a period longer than three years is
permitted under the foregoing sentence and is necessary to sell any REO
Property, the Seller shall report monthly to the Purchaser as to progress being
made in selling such REO Property.
Notwithstanding
any other provision of this Agreement, if a REMIC election has been made, no
Mortgaged Property held by a REMIC shall be rented (or allowed to continue
to be
rented) or otherwise used for the production of income by or on behalf of the
related trust or sold in such a manner or pursuant to any terms that would
(i)
cause such Mortgage Property to fail to qualify at any time as “foreclosure
property” within a meaning of Section 860G(a)(8) of the Code, (ii) subject the
related trust to the imposition of any federal or state income taxes on “net
income from foreclosure property” with respect to such Mortgaged Property within
the meaning of Section 860G(c) of the Code, or (iii) cause the sale of such
Mortgage Property to result in the receipt by the related trust or any income
from non-permitted assets as described in Section 860F(a) (2)(B) of the Code,
unless the Company has agreed to indemnify and hold harmless the related trust
with respect to the imposition of any such taxes.”
9.
Section
4.15 of the Flow Purchase and Servicing Agreement is revised to read in full
as
follows:
“Section
4.15 Adjustments
to Mortgage Interest Rate and Monthly Payment.
As
to
each Adjustable Rate Loan, Seller shall make periodic Mortgage Interest Rate
and
Monthly Payment adjustments, as applicable, in compliance with terms of
requirements of the related Mortgage and Mortgage Note, On each applicable
Interest Rate Change Date, the Mortgage Interest Rate shall be adjusted, in
compliance with such requirements, to equal the sum of the Current Index plus
the Margin (rounded in accordance with the related Mortgage Note) subject to
the
applicable Annual Mortgage Interest Rate Cap and Lifetime Mortgage Interest
Rate
Cap, if any, as set forth in the Mortgage Note. The Seller shall execute and
deliver the notices required by each Mortgage and Mortgage Note, Customary
Servicing Procedures, applicable laws and regulations regarding interest rate
adjustments. If Seller fails to mad a timely and correct Mortgage Interest
Rate
adjustment or Monthly Payment adjustment, Seller shall deposit in the Custodial
Account out of its own funds any amounts necessary to satisfy any shortage
in
the Mortgagor’s Monthly Payment for so long as such shortage
continues.”
10. The
Flow
Purchase and Servicing Agreement is revised to add a new Section 4.16 as
follows:
“4.16
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 “contribution” 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 actions) to the effect that the contemplated
action will not endanger such REMIC status or result in the imposition of any
such tax.”
11. Section
5.01 is revised to include the following after the first sentence of the second
paragraph:
“With
respect to any remittance received by Purchaser after the Business Day on which
such payment was due, Seller shall pay to Purchaser interest on any such late
payment at the daily federal rate. Such interest shall be paid by Seller to
Purchaser on the date such late payment is made and shall cover the period
commencing with the Business Day on which such payment was due and up to and
including the Business Day on which such payment is made. The payment by Seller
of any such interest shall not be deemed an extension of time for payment or
a
waiver of any Event of Default by Seller.”
12. Section
6.05 is hereby deleted in its entirety and replaced with the
following:
“Section
6.05 Annual
Assessment of Compliance and Attestation Report
(a) On
or
before March 1 of each calendar year, commencing in 2008, the Servicer
shall:
(i) deliver
to the Owner ,any Depositor and any Master Servicer a report (in form and
substance reasonably satisfactory to the Owner, such Depositor and such Master
Servicer) regarding the Servicer’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 Owner, such Depositor, and such Master Servicer
and signed by an authorized officer of the Servicer, and shall address each
of
the applicable Servicing Criteria specified on of Exhibit A to Exhibit I hereto
(wherein “Investor” shall mean the Master Servicer on behalf of the
trust);
(ii) deliver
to the Owner, any Depositor and any Master Servicer a report of a registered
public accounting firm reasonably acceptable to the Owner, such Depositor and
such Master Servicer that attests to, and reports on, the assessment of
compliance made by the Servicer 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 Servicer pursuant
to
Section 6.06(b) to be “participating in the servicing function” within the
meaning of Item 1122 of Regulation AB, to deliver to the Owner, any Depositor
and any Master Servicer an assessment of compliance and accountants’ attestation
as and when provided in paragraphs (a) and (b) of this Section; and
(iv) deliver,
and cause each Subservicer and Subcontractor described in Clause (iii) to
deliver, to the Owner, 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 a certification in the
form
attached hereto as Exhibit I.
The
Servicer acknowledges that the parties identified in clause (a)(iv) above may
rely on the certification provided by the Servicer pursuant to such clause
in
signing a Sarbanes Certification and filing such with the
Commission.
(b) Each
assessment of compliance provided by a Subservicer pursuant to Section
6.05(a)(iii) shall address each of the applicable Servicing Criteria specified
on Exhibit __ hereto or, in the case of a Subservicer subsequently appointed
as
such, on or prior to the date of such appointment. An assessment of compliance
provided by a Subcontractor pursuant to Section 6.05(a)(iii) need not address
any elements of the Servicing Criteria other than those specified by the
Servicer pursuant to Section 6.07.”
13. A
new
Section 6.07 is hereby added to the Agreement as follows:
“Section
6.07. Use
of
Subservicers and Subcontractors.
The
Servicer shall not hire or otherwise utilize the services of any Subservicer
to
fulfill any of the obligations of the Servicer as servicer under the Agreement
or any Reconstitution Agreement unless the Servicer complies with the provisions
of paragraph (a) of this Section. The Servicer 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 Servicer as servicer under the Agreement or any
Reconstitution Agreement unless the Servicer complies with the provisions of
paragraph (b) of this Section.
(a) It
shall
not be necessary for the Servicer to seek the consent of the Owner, any
Depositor or any Master Servicer to the utilization of any Subservicer. The
Servicer shall cause any Subservicer used by the Servicer (or by any
Subservicer) for the benefit of the Owner and any Depositor to comply with
the
provisions of this Section and with Sections 6.04, 6.05 and 12.02 of this
Agreement to the same extent as if such Subservicer were the Servicer, and
to
provide the information required with respect to such Subservicer under Section
12.02(d) of this Agreement. The Servicer shall be responsible for obtaining
from
each Subservicer and delivering to the Owner and any Depositor any servicer
compliance statement required to be delivered by such Subservicer under Section
6.04, any assessment of compliance and attestation and other certification
required to be delivered by such Subservicer under Section 6.05 and any
certification required to be delivered to the Person that will be responsible
for signing the Sarbanes Certification under Section 12.02 as and when required
to be delivered.
(b) It
shall
not be necessary for the Servicer to seek the consent of the Owner, any
Depositor or any Master Servicer to the utilization of any Subcontractor. The
Servicer shall promptly upon request provide to the Owner, any Depositor (or
any
designee of the Depositor, such as a Master Servicer or administrator) a written
description (in form and substance satisfactory to the Owner and such Depositor)
of the role and function of each Subcontractor utilized by the Servicer 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 Servicer shall cause any such Subcontractor used by the
Servicer (or by any Subservicer) for the benefit of the Owner and any Depositor
to comply with the provisions of Sections 6.04 and 6.05 of this Agreement to
the
same extent as if such Subcontractor were the Servicer. The Servicer shall
be
responsible for obtaining from each Subcontractor and delivering to the Owner
and any Depositor any assessment of compliance and attestation and the other
certifications required to be delivered by such Subcontractor under Section
6.05, in each case as and when required to be delivered.
14. Section
8.01 is revised to include the words “Master Servicer” after the word
“Purchaser” in the first, third, fifth and seventh lines.
15. Section
8.02 is revised to delete the word “and” in the last line and to add the
following at the end of the sentence: “and (iii) be reasonably acceptable to any
Master Servicer in a Pass-Through Transfer involving some or all of the Mortgage
Loans.”
16. Section
9.01 is revised to include a new subsection (vii) as follows:
“any
failure by the Seller to duly perform, within the required time period, its
obligations under Sections 6.04, 6.05, 6.07 and 12.02 of this Agreement, which
failure continues unremedied for a period of ten (10) days.”
17. In
Section 12.02, “subservicers, ” is added before the word
“subcontractors.”
18. The
first
full sentence of Section 12.02(f) is revised to correct section references
as
follows:
“(f)
Intention of the Parties and Interpretation. The Seller acknowledges and agrees
that the purpose of Subsections 6.04, 6.05, 6.07 and this 12.02 is to facilitate
compliance by the Master Servicer and the Depositor with the provisions of
Regulation AB, as such may be amended from time to time and subject to
clarification and interpretive advice as may be issued by the staff of the
SEC
from time to time.”
19. Notwithstanding
any provision in the Agreement to the contrary, the Seller agrees that it will
report to the Master Servicer on a monthly basis on the date specified therein
using the formats attached hereto as Exhibit 1.
20. Exhibit
I
to the Agreements, the Form of Assessment of Compliance, is hereby deleted
in
its entirety and replaced by Exhibit II attached to this
Assignment.
21. Exhibit
J
to the Agreements, the Form of Back-Up SOX Certification, is hereby deleted
in
its entirety and replaced by Exhibit III attached to this
Assignment.
EXHIBIT
1
|
Standard
Loan Level File Layout - Master Servicing
|
|
|
|
|
|
|
|
|
||
|
|
|
|
||
|
Column
Name
|
Description
|
Decimal
|
Format
Comment
|
Max
Size
|
|
Each
file requires the following fields:
|
|
|
|
|
|
SER_INVESTOR_NBR
|
A
value assigned by the Servicer to define a group of loans.
|
|
Text
up to 20 digits
|
20
|
|
LOAN_NBR
|
A
unique identifier assigned to each loan by the investor.
|
|
Text
up to 10 digits
|
10
|
|
SERVICER_LOAN_NBR
|
A
unique number assigned to a loan by the Servicer. This may be different
than the LOAN_NBR.
|
|
Text
up to 10 digits
|
10
|
|
SCHED_PAY_AMT
|
Scheduled
monthly principal and scheduled interest payment that a borrower
is
expected to pay, P&I constant.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
NOTE_INT_RATE
|
The
loan interest rate as reported by the Servicer.
|
4
|
Max
length of 6
|
6
|
|
NET_INT_RATE
|
The
loan gross interest rate less the service fee rate as reported by
the
Servicer.
|
4
|
Max
length of 6
|
6
|
|
SERV_FEE_RATE
|
The
servicer's fee rate for a loan as reported by the Servicer.
|
4
|
Max
length of 6
|
6
|
|
SERV_FEE_AMT
|
The
servicer's fee amount for a loan as reported by the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
NEW_PAY_AMT
|
The
new loan payment amount as reported by the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
NEW_LOAN_RATE
|
The
new loan rate as reported by the Servicer.
|
4
|
Max
length of 6
|
6
|
|
ARM_INDEX_RATE
|
The
index the Servicer is using to calculate a forecasted
rate.
|
4
|
Max
length of 6
|
6
|
|
ACTL_BEG_PRIN_BAL
|
The
borrower's actual principal balance at the beginning of the processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
ACTL_END_PRIN_BAL
|
The
borrower's actual principal balance at the end of the processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
BORR_NEXT_PAY_DUE_DATE
|
The
date at the end of processing cycle that the borrower's next payment
is
due to the Servicer, as reported by Servicer.
|
|
MM/DD/YYYY
|
10
|
|
SERV_CURT_AMT_1
|
The
first curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_DATE_1
|
The
curtailment date associated with the first curtailment amount.
|
|
MM/DD/YYYY
|
10
|
|
CURT_ADJ_
AMT_1
|
The
curtailment interest on the first curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_AMT_2
|
The
second curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_DATE_2
|
The
curtailment date associated with the second curtailment
amount.
|
|
MM/DD/YYYY
|
10
|
|
CURT_ADJ_
AMT_2
|
The
curtailment interest on the second curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
Exhibit
1: Continued
|
Standard
Loan Level File Layout
|
|
|
|
|
Column
Name
|
Description
|
Decimal
|
Format
Comment
|
Max
Size
|
|
SERV_CURT_AMT_3
|
The
third curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_DATE_3
|
The
curtailment date associated with the third curtailment
amount.
|
|
MM/DD/YYYY
|
10
|
|
CURT_ADJ_AMT_3
|
The
curtailment interest on the third curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PIF_AMT
|
The
loan "paid in full" amount as reported by the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PIF_DATE
|
The
paid in full date as reported by the Servicer.
|
|
MM/DD/YYYY
|
10
|
|
ACTION_CODE
|
The
standard FNMA numeric code used to indicate the default/delinquent
status
of a particular loan.
|
|
Action
Code Key: 15=Bankruptcy, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇, , ▇▇▇▇▇▇, 63=Substitution,
65=Repurchase,70=REO
|
2
|
|
INT_ADJ_AMT
|
The
amount of the interest adjustment as reported by the
Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SOLDIER_SAILOR_ADJ_AMT
|
The
Soldier and Sailor Adjustment amount, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
NON_ADV_LOAN_AMT
|
The
Non Recoverable Loan Amount, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
LOAN_LOSS_AMT
|
The
amount the Servicer is passing as a loss, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
Plus
the following applicable fields:
|
|
|
|
|
|
SCHED_BEG_PRIN_BAL
|
The
scheduled outstanding principal amount due at the beginning of the
cycle
date to be passed through to investors.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_END_PRIN_BAL
|
The
scheduled principal balance due to investors at the end of a processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_PRIN_AMT
|
The
scheduled principal amount as reported by the Servicer for the current
cycle -- only applicable for Scheduled/Scheduled Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_NET_INT
|
The
scheduled gross interest amount less the service fee amount for the
current cycle as reported by the Servicer -- only applicable for
Scheduled/Scheduled Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
ACTL_PRIN_AMT
|
The
actual principal amount collected by the Servicer for the current
reporting cycle -- only applicable for Actual/Actual
Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
ACTL_NET_INT
|
The
actual gross interest amount less the service fee amount for the
current
reporting cycle as reported by the Servicer -- only applicable for
Actual/Actual Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PREPAY_PENALTY_
AMT
|
The
penalty amount received when a borrower prepays on his loan as reported
by
the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PREPAY_PENALTY_
WAIVED
|
The
prepayment penalty amount for the loan waived by the
servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
Exhibit
1: Continued
|
Standard
Loan Level File Layout
|
|
|
|
|
Column
Name
|
Description
|
Decimal
|
Format
Comment
|
Max
Size
|
|
MOD_DATE
|
The
Effective Payment Date of the Modification for the loan.
|
|
MM/DD/YYYY
|
10
|
|
MOD_TYPE
|
The
Modification Type.
|
|
Varchar
- value can be alpha or numeric
|
30
|
|
DELINQ_P&I_ADVANCE_AMT
|
The
current outstanding principal and interest advances made by
Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
BREACH_FLAG
|
Flag
to indicate if the repurchase of a loan is due to a breach of
Representations and Warranties
|
Y=Breach
N=NO
Breach
Let
blank if N/A
|
1
|
Exhibit
12B : Standard
File Layout - Delinquency Reporting
*The
column/header names in bold
are
the minimum fields ▇▇▇▇▇ Fargo must receive from every
Servicer
|
Column/Header
Name
|
Description
|
Decimal
|
Format
Comment
|
||
|
SERVICER_LOAN_NBR
|
A
unique number assigned to a loan by the Servicer. This may be different
than the LOAN_NBR
|
|
|||
|
LOAN_NBR
|
A
unique identifier assigned to each loan by the originator.
|
|
|||
|
CLIENT_NBR
|
Servicer
Client Number
|
||||
|
SERV_INVESTOR_NBR
|
Contains
a unique number as assigned by an external servicer to identify a
group of
loans in their system.
|
|
|||
|
BORROWER_FIRST_NAME
|
First
Name of the Borrower.
|
||||
|
BORROWER_LAST_NAME
|
Last
name of the borrower.
|
||||
|
PROP_ADDRESS
|
Street
Name and Number of Property
|
|
|||
|
PROP_STATE
|
The
state where the property located.
|
|
|||
|
PROP_ZIP
|
Zip
code where the property is located.
|
|
|||
|
BORR_NEXT_PAY_DUE_DATE
|
The
date that the borrower's next payment is due to the servicer at the
end of
processing cycle, as reported by Servicer.
|
MM/DD/YYYY
|
|||
|
LOAN_TYPE
|
Loan
Type (i.e. FHA, VA, Conv)
|
|
|||
|
BANKRUPTCY_FILED_DATE
|
The
date a particular bankruptcy claim was filed.
|
MM/DD/YYYY
|
|||
|
BANKRUPTCY_CHAPTER_CODE
|
The
chapter under which the bankruptcy was filed.
|
|
|||
|
BANKRUPTCY_CASE_NBR
|
The
case number assigned by the court to the bankruptcy
filing.
|
|
|||
|
POST_PETITION_DUE_DATE
|
The
payment due date once the bankruptcy has been approved by the
courts
|
MM/DD/YYYY
|
|||
|
BANKRUPTCY_DCHRG_DISM_DATE
|
The
Date The Loan Is Removed From Bankruptcy. Either by Dismissal, Discharged
and/or a Motion For Relief Was Granted.
|
MM/DD/YYYY
|
|||
|
LOSS_MIT_APPR_DATE
|
The
Date The Loss Mitigation Was Approved By The Servicer
|
MM/DD/YYYY
|
|||
|
LOSS_MIT_TYPE
|
The
Type Of Loss Mitigation Approved For A Loan Such As;
|
||||
|
LOSS_MIT_EST_COMP_DATE
|
The
Date The Loss Mitigation /Plan Is Scheduled To End/Close
|
MM/DD/YYYY
|
|||
|
LOSS_MIT_ACT_COMP_DATE
|
The
Date The Loss Mitigation Is Actually Completed
|
MM/DD/YYYY
|
|||
|
FRCLSR_APPROVED_DATE
|
The
date DA Admin sends a letter to the servicer with instructions to
begin
foreclosure proceedings.
|
MM/DD/YYYY
|
|||
|
ATTORNEY_REFERRAL_DATE
|
Date
File Was Referred To Attorney to Pursue Foreclosure
|
MM/DD/YYYY
|
|||
|
FIRST_LEGAL_DATE
|
Notice
of 1st legal filed by an Attorney in a Foreclosure Action
|
MM/DD/YYYY
|
|||
|
FRCLSR_SALE_EXPECTED_DATE
|
The
date by which a foreclosure sale is expected to occur.
|
MM/DD/YYYY
|
|||
|
FRCLSR_SALE_DATE
|
The
actual date of the foreclosure sale.
|
MM/DD/YYYY
|
|||
|
FRCLSR_SALE_AMT
|
The
amount a property sold for at the foreclosure sale.
|
2
|
No
commas(,) or dollar signs ($)
|
||
|
EVICTION_START_DATE
|
The
date the servicer initiates eviction of the borrower.
|
MM/DD/YYYY
|
|||
|
EVICTION_COMPLETED_DATE
|
The
date the court revokes legal possession of the property from the
borrower.
|
MM/DD/YYYY
|
|||
|
LIST_PRICE
|
The
price at which an REO property is marketed.
|
2
|
No
commas(,) or dollar signs ($)
|
||
|
LIST_DATE
|
The
date an REO property is listed at a particular price.
|
MM/DD/YYYY
|
|||
|
OFFER_AMT
|
The
dollar value of an offer for an REO property.
|
2
|
No
commas(,) or dollar signs ($)
|
||
|
OFFER_DATE_TIME
|
The
date an offer is received by DA Admin or by the Servicer.
|
MM/DD/YYYY
|
|||
|
REO_CLOSING_DATE
|
The
date the REO sale of the property is scheduled to close.
|
MM/DD/YYYY
|
|||
|
REO_ACTUAL_CLOSING_DATE
|
Actual
Date Of REO Sale
|
MM/DD/YYYY
|
|||
|
OCCUPANT_CODE
|
Classification
of how the property is occupied.
|
|
|||
|
PROP_CONDITION_CODE
|
A
code that indicates the condition of the property.
|
|
|||
|
PROP_INSPECTION_DATE
|
The
date a property inspection is performed.
|
MM/DD/YYYY
|
|||
|
APPRAISAL_DATE
|
The
date the appraisal was done.
|
MM/DD/YYYY
|
|||
|
CURR_PROP_VAL
|
The
current "as is" value of the property based on brokers price opinion
or
appraisal.
|
2
|
|
||
|
REPAIRED_PROP_VAL
|
The
amount the property would be worth if repairs are completed pursuant
to a
broker's price opinion or appraisal.
|
2
|
|
||
|
If
applicable:
|
|
|
|||
|
DELINQ_STATUS_CODE
|
FNMA
Code Describing Status of Loan
|
||||
|
DELINQ_REASON_CODE
|
The
circumstances which caused a borrower to stop paying on a loan. Code
indicates the reason why the loan is in default for this
cycle.
|
||||
|
MI_CLAIM_FILED_DATE
|
Date
Mortgage Insurance Claim Was Filed With Mortgage Insurance
Company.
|
MM/DD/YYYY
|
|||
|
MI_CLAIM_AMT
|
Amount
of Mortgage Insurance Claim Filed
|
No
commas(,) or dollar signs ($)
|
|||
|
MI_CLAIM_PAID_DATE
|
Date
Mortgage Insurance Company Disbursed Claim Payment
|
MM/DD/YYYY
|
|||
|
MI_CLAIM_AMT_PAID
|
Amount
Mortgage Insurance Company Paid On Claim
|
2
|
No
commas(,) or dollar signs ($)
|
||
|
POOL_CLAIM_FILED_DATE
|
Date
Claim Was Filed With Pool Insurance Company
|
MM/DD/YYYY
|
|||
|
POOL_CLAIM_AMT
|
Amount
of Claim Filed With Pool Insurance Company
|
2
|
No
commas(,) or dollar signs ($)
|
||
|
POOL_CLAIM_PAID_DATE
|
Date
Claim Was Settled and The Check Was Issued By The Pool
Insurer
|
MM/DD/YYYY
|
|||
|
POOL_CLAIM_AMT_PAID
|
Amount
Paid On Claim By Pool Insurance Company
|
2
|
No
commas(,) or dollar signs ($)
|
||
|
FHA_PART_A_CLAIM_FILED_DATE
|
Date
FHA Part A Claim Was Filed With HUD
|
MM/DD/YYYY
|
|||
|
FHA_PART_A_CLAIM_AMT
|
Amount
of FHA Part A Claim Filed
|
2
|
No
commas(,) or dollar signs ($)
|
||
|
FHA_PART_A_CLAIM_PAID_DATE
|
Date
HUD Disbursed Part A Claim Payment
|
MM/DD/YYYY
|
|||
|
FHA_PART_A_CLAIM_PAID_AMT
|
Amount
HUD Paid on Part A Claim
|
2
|
No
commas(,) or dollar signs ($)
|
||
|
FHA_PART_B_CLAIM_FILED_DATE
|
Date
FHA Part B Claim Was Filed With HUD
|
MM/DD/YYYY
|
|||
|
FHA_PART_B_CLAIM_AMT
|
Amount
of FHA Part B Claim Filed
|
2
|
No
commas(,) or dollar signs ($)
|
||
|
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 ($)
|
||
|
VA_CLAIM_FILED_DATE
|
Date
VA Claim Was Filed With the Veterans Admin
|
MM/DD/YYYY
|
|||
|
VA_CLAIM_PAID_DATE
|
Date
Veterans Admin. Disbursed VA Claim Payment
|
MM/DD/YYYY
|
|||
|
VA_CLAIM_PAID_AMT
|
Amount
Veterans Admin. Paid on VA Claim
|
2
|
No
commas(,) or dollar signs ($)
|
||
|
MOTION_FOR_RELIEF_DATE
|
The
date the Motion for Relief was filed
|
10
|
MM/DD/YYYY
|
||
|
FRCLSR_BID_AMT
|
The
foreclosure sale bid amount
|
11
|
No
commas(,) or dollar signs ($)
|
||
|
FRCLSR_SALE_TYPE
|
The
foreclosure sales results: REO, Third Party, Conveyance to
HUD/VA
|
|
|
||
|
REO_PROCEEDS
|
The
net proceeds from the sale of the REO property.
|
|
No
commas(,) or dollar signs ($)
|
||
|
BPO_DATE
|
The
date the BPO was done.
|
|
|
||
|
CURRENT_FICO
|
The
current FICO score
|
|
|
||
|
HAZARD_CLAIM_FILED_DATE
|
The
date the Hazard Claim was filed with the Hazard Insurance
Company.
|
10
|
MM/DD/YYYY
|
||
|
HAZARD_CLAIM_AMT
|
The
amount of the Hazard Insurance Claim filed.
|
11
|
No
commas(,) or dollar signs ($)
|
||
|
HAZARD_CLAIM_PAID_DATE
|
The
date the Hazard Insurance Company disbursed the claim
payment.
|
10
|
MM/DD/YYYY
|
||
|
HAZARD_CLAIM_PAID_AMT
|
The
amount the Hazard Insurance Company paid on the claim.
|
11
|
No
commas(,) or dollar signs ($)
|
||
|
ACTION_CODE
|
Indicates
loan status
|
Number
|
||
|
NOD_DATE
|
|
|
MM/DD/YYYY
|
|
|
NOI_DATE
|
|
|
MM/DD/YYYY
|
|
|
ACTUAL_PAYMENT_PLAN_START_DATE
|
|
|
MM/DD/YYYY
|
|
|
ACTUAL_PAYMENT_
PLAN_END_DATE
|
|
|
|
|
|
ACTUAL_REO_START_DATE
|
|
|
MM/DD/YYYY
|
|
|
REO_SALES_PRICE
|
|
|
Number
|
|
|
REALIZED_LOSS/GAIN
|
As
defined in the Servicing Agreement
|
|
Number
|
|
Exhibit
2: Standard
File Codes - Delinquency Reporting
The
Loss
Mit Type
field
should show the approved Loss Mitigation Code as follows:
| · |
ASUM-Approved
Assumption
|
| · |
BAP-Borrower
Assistance Program
|
| · |
CO-
Charge Off
|
| · |
DIL-
Deed-in-Lieu
|
| · |
FFA-
Formal Forbearance Agreement
|
| · |
MOD-
Loan Modification
|
| · |
PRE-
Pre-Sale
|
| · |
SS-
Short Sale
|
| · |
MISC-Anything
else approved by the PMI or Pool
Insurer
|
NOTE:
▇▇▇▇▇ Fargo Bank will accept alternative Loss Mitigation Types to those above,
provided that they are consistent with industry standards. If Loss Mitigation
Types other than those above are used, the Servicer must supply ▇▇▇▇▇ Fargo
Bank
with a description of each of the Loss Mitigation Types prior to sending the
file.
The
Occupant
Code
field should show the current status of the property code as
follows:
| · |
Mortgagor
|
| · |
Tenant
|
| · |
Unknown
|
| · |
Vacant
|
The
Property
Condition
field should show the last reported condition of the property as follows:
| · |
Damaged
|
| · |
Excellent
|
| · |
Fair
|
| · |
Gone
|
| · |
Good
|
| · |
Poor
|
| · |
Special
Hazard
|
| · |
Unknown
|
Exhibit
2: Standard
File Codes - Delinquency Reporting, Continued
The
FNMA
Delinquent Reason Code
field should show the Reason for Delinquency as follows:
|
Delinquency
Code
|
Delinquency
Description
|
|
001
|
FNMA-Death
of principal mortgagor
|
|
002
|
FNMA-Illness
of principal mortgagor
|
|
003
|
FNMA-Illness
of mortgagor’s family member
|
|
004
|
FNMA-Death
of mortgagor’s family member
|
|
005
|
FNMA-Marital
difficulties
|
|
006
|
FNMA-Curtailment
of income
|
|
007
|
FNMA-Excessive
Obligation
|
|
008
|
FNMA-Abandonment
of property
|
|
009
|
FNMA-Distant
employee transfer
|
|
011
|
FNMA-Property
problem
|
|
012
|
FNMA-Inability
to sell property
|
|
013
|
FNMA-Inability
to rent property
|
|
014
|
FNMA-Military
Service
|
|
015
|
FNMA-Other
|
|
016
|
FNMA-Unemployment
|
|
017
|
FNMA-Business
failure
|
|
019
|
FNMA-Casualty
loss
|
|
022
|
FNMA-Energy
environment costs
|
|
023
|
FNMA-Servicing
problems
|
|
026
|
FNMA-Payment
adjustment
|
|
027
|
FNMA-Payment
dispute
|
|
029
|
FNMA-Transfer
of ownership pending
|
|
030
|
FNMA-Fraud
|
|
031
|
FNMA-Unable
to contact borrower
|
|
INC
|
FNMA-Incarceration
|
Exhibit
2: Standard
File Codes - Delinquency Reporting, Continued
The
FNMA
Delinquent Status Code
field should show the Status of Default as follows:
|
Status
Code
|
Status
Description
|
|
09
|
Forbearance
|
|
17
|
Pre-foreclosure
Sale Closing Plan Accepted
|
|
24
|
Government
Seizure
|
|
26
|
Refinance
|
|
27
|
Assumption
|
|
28
|
Modification
|
|
29
|
Charge-Off
|
|
30
|
Third
Party Sale
|
|
31
|
Probate
|
|
32
|
Military
Indulgence
|
|
43
|
Foreclosure
Started
|
|
44
|
Deed-in-Lieu
Started
|
|
49
|
Assignment
Completed
|
|
61
|
Second
Lien Considerations
|
|
62
|
Veteran’s
Affairs-No Bid
|
|
63
|
Veteran’s
Affairs-Refund
|
|
64
|
Veteran’s
Affairs-Buydown
|
|
65
|
Chapter
7 Bankruptcy
|
|
66
|
Chapter
11 Bankruptcy
|
|
67
|
Chapter
13 Bankruptcy
|
Exhibit
12C: Calculation
of Realized Loss/Gain Form 332- Instruction Sheet
NOTE:
Do not net or combine items. Show all expenses individually and all credits
as
separate line items. Claim packages are due on the remittance report date.
Late
submissions may result in claims not being passed until the following month.
The
Servicer is responsible to remit all funds pending loss approval and /or
resolution of any disputed items.
The
numbers on the 332 form correspond with the numbers listed
below.
Liquidation
and Acquisition Expenses:
1. The
Actual Unpaid Principal Balance of the Mortgage Loan. For documentation, an
Amortization Schedule from date of default through liquidation breaking out
the
net interest and servicing fees advanced is required.
2. The
Total
Interest Due less the aggregate amount of servicing fee that would have been
earned if all delinquent payments had been made as agreed. For documentation,
an
Amortization Schedule from date of default through liquidation breaking out
the
net interest and servicing fees advanced is required.
3.
Accrued
Servicing Fees based upon the Scheduled Principal Balance of the Mortgage Loan
as calculated on a monthly basis. For documentation, an Amortization Schedule
from date of default through liquidation breaking out the net interest and
servicing fees advanced is required.
4-12. Complete
as applicable. Required documentation:
*
For
taxes and insurance advances - see page 2 of 332 form - breakdown required
showing period
of
coverage, base tax, interest, penalty. Advances prior to default require
evidence of servicer efforts to recover advances.
*
For
escrow advances - complete payment history
(to
calculate advances from last positive escrow balance forward)
*
Other
expenses - copies of corporate advance history showing all payments
*
REO
repairs > $1500 require explanation
*
REO
repairs >$3000 require evidence of at least 2 bids.
*
Short
Sale or Charge Off require P&L supporting the decision and
WFB’s approved Officer Certificate
*
Unusual
or extraordinary items may require further documentation.
13. The
total
of lines 1 through 12.
Credits:
14-21. Complete
as applicable. Required documentation:
*
Copy of
the HUD 1 from the REO sale. If a 3rd
Party
Sale, bid instructions and Escrow
Agent / Attorney
Letter
of
Proceeds
Breakdown.
*
Copy of
EOB for any MI or gov't guarantee
*
All
other credits need to be clearly defined on the 332
form
|
22.
|
The
total of lines 14 through 21.
|
Please
Note: For
HUD/VA loans, use line (18a) for Part A/Initial proceeds and line (18b) for
Part
B/Supplemental proceeds.
Total
Realized Loss (or Amount of Any Gain)
23. The
total
derived from subtracting line 22 from 13. If the amount represents a realized
gain, show the amount in parenthesis ( ).
Exhibit
3A: Calculation
of Realized Loss/Gain Form 332
Prepared
by: __________________ Date:
_______________
Phone:
______________________ Email Address:_____________________
|
Servicer
Loan No.
|
Servicer
Name
|
Servicer
Address
|
▇▇▇▇▇
FARGO BANK, N.A. Loan No._____________________________
Borrower's
Name: _________________________________________________________
Property
Address: _________________________________________________________
Liquidation
Type: REO Sale
3rd
Party Sale Short
Sale Charge
Off
Was
this loan granted a Bankruptcy deficiency or cramdown Yes No
If
“Yes”,
provide deficiency or cramdown amount
_______________________________
|
Liquidation
and Acquisition Expenses:
|
|||
|
(1)
|
Actual
Unpaid Principal Balance of Mortgage Loan
|
$
______________
|
(1)
|
|
(2)
|
Interest
accrued at Net Rate
|
________________
|
(2)
|
|
(3)
|
Accrued
Servicing Fees
|
________________
|
(3)
|
|
(4)
|
Attorney's
Fees
|
________________
|
(4)
|
|
(5)
|
Taxes
(see page 2)
|
________________
|
(5)
|
|
(6)
|
Property
Maintenance
|
________________
|
(6)
|
|
(7)
|
MI/Hazard
Insurance Premiums (see page 2)
|
________________
|
(7)
|
|
(8)
|
Utility
Expenses
|
________________
|
(8)
|
|
(9)
|
Appraisal/BPO
|
________________
|
(9)
|
|
(10)
|
Property
Inspections
|
________________
|
(10)
|
|
(11)
|
FC
Costs/Other Legal Expenses
|
________________
|
(11)
|
|
(12)
|
Other
(itemize)
|
________________
|
(12)
|
|
Cash
for Keys__________________________
|
________________
|
(12)
|
|
|
HOA/Condo
Fees_______________________
|
________________
|
(12)
|
|
|
______________________________________
|
________________
|
(12)
|
|
|
Total
Expenses
|
$
_______________
|
(13)
|
|
|
Credits:
|
|||
|
(14)
|
Escrow
Balance
|
$
_______________
|
(14)
|
|
(15)
|
HIP
Refund
|
________________
|
(15)
|
|
(16)
|
Rental
Receipts
|
________________
|
(16)
|
|
(17)
|
Hazard
Loss Proceeds
|
________________
|
(17)
|
|
(18)
|
Primary
Mortgage Insurance / Gov’t Insurance
|
________________
|
(18a)
HUD Part A
|
|
________________
|
(18b)
HUD Part B
|
||
|
(19)
|
Pool
Insurance Proceeds
|
________________
|
(19)
|
|
(20)
|
Proceeds
from Sale of Acquired Property
|
________________
|
(20)
|
|
(21)
|
Other
(itemize)
|
________________
|
(21)
|
|
_________________________________________
|
________________
|
(21)
|
|
|
Total
Credits
|
$________________
|
(22)
|
|
|
Total
Realized Loss (or Amount of Gain)
|
$________________
|
(23)
|
|
Escrow
Disbursement Detail
|
Type
(Tax
/Ins.)
|
Date
Paid
|
Period
of Coverage
|
Total
Paid
|
Base
Amount
|
Penalties
|
Interest
|
EXHIBIT
II
EXHIBIT
I
FORM
OF
ASSESSMENT OF COMPLIANCE
Re:
The
[
]
agreement dated as of [ ],
200[ ]
(the “Agreement”), among
[IDENTIFY
PARTIES]
I,
________________________________, the _____________________ of GreenPoint
Mortgage Funding, Inc., certify to [the Purchaser], [the Depositor], and the
[Master Servicer] [Securities Administrator] [Trustee], and their officers,
with
the knowledge and intent that they will rely upon this certification, that:
(1)
I
have
reviewed the servicer compliance statement of the 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 and identified as the responsibility of the
Company on Exhibit A hereto (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”);
(2)
Based
on
my knowledge, the Company Servicing Information, taken as a whole, does not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances under
which such statements were made, not misleading with respect to the period
of
time covered by the Company Servicing Information;
(3)
Based
on
my knowledge, all of the Company Servicing Information required to be provided
by the Company under the Agreement has been provided to the [Depositor] [Master
Servicer] [Securities Administrator] [Trustee];
(4)
I
am
responsible for reviewing the activities performed by the Company as servicer
under the Agreement, and based on my knowledge and the compliance review
conducted in preparing the Compliance Statement and except as disclosed in
the
Compliance Statement, the Servicing Assessment or the Attestation Report, the
Company has fulfilled its obligations under the Agreement in all material
respects; and
(5)
The
Compliance Statement required to be delivered by the Company pursuant to the
Agreement, and the Servicing Assessment and Attestation Report required to
be
provided by the Company and by any Subservicer or Subcontractor pursuant to
the
Agreement, have been provided to the [Depositor] [Master Servicer]. Any material
instances of noncompliance described in such reports have been disclosed to
the
[Depositor] [Master Servicer]. Any material instance of noncompliance with
the
Servicing Criteria has been disclosed in such reports.
Date:__________________________________
By: ___________________________________
Name:
Title:
EXHIBIT
A
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by [the Company] [Name of Subservicer]
shall address, at a minimum, the criteria identified as below as “Applicable
Servicing Criteria”;
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
|
General
Servicing Considerations
|
||
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction agreements.
|
x
|
|
|
1122(d)(1)(i)
|
||
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
x
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
x
|
|
Cash
Collection and Administration
|
||
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
x
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
x
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction agreements.
|
x
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
x
|
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
x
|
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized access.
|
x
|
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction
agreements;
(C) reviewed and approved by someone other than the person who prepared
the reconciliation; and (D) contain explanations for reconciling
items.
These reconciling items are resolved within 90 calendar days of their
original identification, or such other number of
days
specified in the transaction agreements.
|
x
|
|
|
Investor
Remittances and Reporting
|
|||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the Servicer.
|
x
|
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
x
|
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
x
|
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank statements.
|
x
|
|
|
Pool
Asset Administration
|
|||
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the transaction
agreements or related mortgage loan documents.
|
x
|
|
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements
|
x
|
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
x
|
|
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow) in
accordance
with the related mortgage loan documents.
|
x
|
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal balance.
|
x
|
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor’s mortgage loans (e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
x
|
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
x
|
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or unemployment).
|
x
|
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan documents.
|
x
|
|
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period specified
in
the transaction agreements; (B) interest on such funds is paid, or
credited, to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the Mortgage Loans,
or such
other number of days specified in the transaction agreements.
|
x
|
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
x
|
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
x
|
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
x
|
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
x
|
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
||
[GREENPOINT
MORTGAGE FUNDING]
[NAME
OF
SUBSERVICER]
Date:
____________________________________
By:
_____________________________________
Name:
Title:
EXHIBIT
III
EXHIBIT
J
FORM
OF BACK-UP SOX CERTIFICATION
Re: The
[ ]
agreement dated as of [ ],
200[ ]
(the “Agreement”), among [IDENTIFY PARTIES]
I,
________________________________, the _______________________ of [NAME OF
SELLER] (the “Company”), hereby certify to [DEPOSITOR] and [MASTER SERVICER],
with the knowledge and intent that they will rely upon this certification,
that:
(1) I
have
reviewed the servicer compliance statement of Seller provided in accordance
with
Item 1123 of Regulation AB (the “Compliance Statement”), the report on
assessment of Seller’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(a) 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 and officer certificates related to the
servicing of the Mortgage Loans during 200__, that were delivered pursuant
to
the Agreement (collectively, the “Company Servicing Information”);
(2) Based
on
my knowledge, the Company Servicing Information, taken as a whole, does not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made therein, in the light of the circumstances
under which such statements were made, not misleading with respect to the period
of time covered by Company Servicing Information;
(3) Based
on
my knowledge, all of the Company Servicing Information required to be provided
by the Company under the Agreement has been provided to the [DEPOSITOR], [MASTER
SERVICER][SECURITIES ADMINISTRATOR][TRUSTEE];
(4) I
am
responsible for reviewing the activities performed by Seller 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, Seller has
fulfilled its obligations under the Agreement in all material respects;
and
(5) The
Compliance Statement required to be delivered by Seller pursuant to the
Agreement, and the Servicing Assessment and Attestation Report required to
be
provided by Seller and by any Subservicer and Subcontractor pursuant to the
Agreement, have been provided to [DEPOSITOR][MASTER SERVICER]. Any material
instances of noncompliance with the Agreement and any Reconstitution Agreement
and any material instances of noncompliance with the Servicing Criteria have
been disclosed in such reports.
GREENPOINT
MORTGAGE FUNDING, INC.
By:____________________________________
Name:
________________________________
Title:
________________________________ Date: _________________________