AMENDED and RESTATED PURCHASE, WARRANTIES and SERVICING AGREEMENT Between UBS REAL ESTATE SECURITIES INC. as Purchaser And SUNTRUST MORTGAGE, INC. as Seller Dated as of December 1, 2004
Exhibit
99.2
AMENDED
and RESTATED PURCHASE, WARRANTIES and SERVICING AGREEMENT
Between
UBS
REAL
ESTATE SECURITIES INC.
as
Purchaser
And
SUNTRUST
MORTGAGE, INC. as Seller
Dated
as
of December 1, 2004
TABLE
OF
CONTENTS
|
ARTICLE
I
|
1
|
|
|
Section
1.01
|
Defined
Terms.
|
1
|
|
ARTICLE
II
|
14
|
|
|
Section
2.01
|
Agreement
to Purchase.
|
14
|
|
Section
2.02
|
Purchase
Price.
|
14
|
|
Section
2.03
|
Servicing
of Mortgage Loans.
|
15
|
|
Section
2.04
|
Record
Title and Possession of Mortgage Files; Maintenance of Servicing
Files.
|
16
|
|
Section
2.05
|
Books
and Records.
|
16
|
|
Section
2.06
|
Transfer
of Mortgage Loans.
|
17
|
|
Section
2.07
|
Examination
of Mortgage Files; Delivery of Mortgage Loan Documents.
|
17
|
|
Section
2.08
|
Quality
Control Procedures.
|
20
|
|
ARTICLE
III
|
21
|
|
|
Section
3.01
|
Representations
and Warranties of the Seller.
|
21
|
|
Section
3.02
|
Representations
and Warranties as to Individual Mortgage Loans.
|
23
|
|
Section
3.03
|
Repurchase;
Substitution; Set-off.
|
37
|
|
Section
3.04
|
Repurchase
of Convertible Mortgage Loans.
|
39
|
|
Section
3.05
|
Repurchase
of Mortgage Loans With Early Payment Defaults.
|
39
|
|
Section
3.06
|
Purchase
Price Protection.
|
39
|
i
|
ARTICLE
IV
|
39
|
|
|
Section
4.01
|
Seller
to Act as Servicer.
|
39
|
|
Section
4.02
|
Collection
of Mortgage Loan Payments.
|
42
|
|
Section
4.03
|
Realization
Upon Defaulted Mortgage Loans.
|
42
|
|
Section
4.04
|
Establishment
of Custodial Accounts; Deposits in Custodial Accounts.
|
44
|
|
Section
4.05
|
Permitted
Withdrawals From the Custodial Account.
|
45
|
|
Section
4.06
|
Establishment
of Escrow Accounts; Deposits in Escrow Accounts.
|
46
|
|
Section
4.07
|
Permitted
Withdrawals From Escrow Account.
|
47
|
|
Section
4.08
|
Payment
of Taxes, Insurance and Other Charges; Maintenance of Primary
Mortgage
Insurance Policies; Collections Thereunder.
|
48
|
|
Section
4.09
|
Transfer
of Accounts.
|
49
|
|
Section
4.10
|
Maintenance
of Hazard Insurance.
|
49
|
|
Section
4.11
|
Maintenance
of Mortgage Impairment Insurance Policy.
|
50
|
|
Section
4.12
|
Fidelity
Bond, Errors and Omissions Insurance.
|
51
|
|
Section
4.13
|
Title,
Management and Disposition of REO Property.
|
51
|
|
Section
4.14
|
Notification
of Maturity Date.
|
53
|
|
Section
4.15
|
Notification
of Adjustments.
|
54
|
|
Section
4.16
|
Compliance
with REMIC Provisions.
|
54
|
|
ARTICLE
V
|
54
|
|
ii
|
Section
5.01
|
Distributions.
|
54
|
|
Section
5.02
|
Statements
to the Purchaser.
|
55
|
|
Section
5.03
|
Monthly
Advances by the Seller.
|
56
|
|
Section
5.04
|
Liquidation
Reports.
|
57
|
|
ARTICLE
VI
|
57
|
|
|
Section
6.01
|
Assumption
Agreements.
|
57
|
|
Section
6.02
|
Satisfaction
of Mortgages and Release of Mortgage Files.
|
58
|
|
Section
6.03
|
Servicing
Compensation.
|
59
|
|
Section
6.04
|
Annual
Statement as to Compliance; Annual Independent Certified Public
Accountants’ Servicing Report.
|
59
|
|
Section
6.05
|
RESERVED.
|
61
|
|
Section
6.06
|
Purchaser’s
Right to Examine Seller Records.
|
61
|
|
ARTICLE
VII
|
61
|
|
|
Section
7.01
|
Seller
Shall Provide Information as Reasonably Required.
|
62
|
|
ARTICLE
VIII
|
63
|
|
|
Section
8.01
|
Section
8.01 Indemnification.
|
63
|
|
Section
8.02
|
Merger
or Consolidation of the Seller.
|
63
|
|
Section
8.03
|
Limitation
on Liability of the Seller and Others.
|
64
|
|
Section
8.04
|
Seller
Not to Assign or Resign.
|
64
|
|
Section
8.05
|
No
Transfer of Servicing.
|
64
|
iii
|
ARTICLE
IX
|
65
|
|
|
Section
9.01
|
Events
of Default.
|
65
|
|
Section
9.02
|
Waiver
of Defaults.
|
67
|
|
ARTICLE
X
|
67
|
|
|
Section
10.01
|
Termination.
|
67
|
|
Section
10.02
|
Termination
Without Cause.
|
67
|
|
ARTICLE
XI
|
68
|
|
|
Section
11.01
|
Successor
to the Seller.
|
68
|
|
Section
11.02
|
Amendment.
|
69
|
|
Section
11.03
|
Recordation
of Agreement.
|
69
|
|
Section
11.04
|
Governing
Law.
|
69
|
|
Section
11.05
|
Notices.
|
69
|
|
Section
11.06
|
Severability
of Provisions.
|
70
|
|
Section
11.07
|
Exhibits.
|
70
|
|
Section
11.08
|
General
Interpretive Principles.
|
70
|
|
Section
11.09
|
Reproduction
of Documents.
|
71
|
|
Section
11.10
|
Recordation
of Assignments of Mortgage.
|
71
|
|
Section
11.11
|
Assignment
by Purchaser.
|
72
|
|
Section
11.12
|
No
Partnership.
|
72
|
|
Section
11.13
|
Execution;
Successors and Assigns.
|
72
|
iv
|
Section
11.14
|
Entire
Agreement.
|
72
|
|
Section
11.15
|
No
Solicitation.
|
73
|
|
Section
11.16
|
Closing.
|
73
|
|
Section
11.17
|
Cooperation
of Seller with a Reconstitution.
|
75
|
|
Section
11.18
|
Financial
Statements.
|
77
|
|
Section
11.19
|
Mandatory
Delivery: Grant of Security Interest.
|
77
|
|
Section
11.20
|
Intention
of the Parties.
|
78
|
|
Section
11.21
|
Waivers.
|
78
|
|
Section
11.22
|
Further
Agreements.
|
78
|
|
Section
11.23
|
Reproduction
of Documents.
|
78
|
|
Section
11.24
|
Electronic
Execution.
|
79
|
|
EXHIBIT
A: MORTGAGE LOAN SCHEDULE
|
A1
|
|
EXHIBIT
B: CONTENTS OF MORTGAGE FILE
|
B1
|
|
EXHIBIT
C: CUSTODIAL ACCOUNT/ESCROW ACCOUNT LETTER AGREEMENTS
|
C1
|
|
EXHIBIT
D: UNDERWRITING GUIDELINES AS OF INITIAL CLOSING
DATE
|
D1
|
|
EXHIBIT
E: SELLER'S OFFICER'S CERTIFICATE
|
E1
|
|
EXHIBIT
F: FORM OF OPINION OF COUNSEL TO THE SELLER
|
F1
|
|
EXHIBIT
G: SECURITY RELEASE CERTIFICATION
|
G1
|
v
|
EXHIBIT
H1: ASSIGNMENT AND CONVEYANCE
|
H1-1
|
|
EXHIBIT
H2: ASSIGNMENT AND CONVEYANCE
|
H2-1
|
|
EXHIBIT
I: FORM CERTIFICATION TO BE PROVIDED BY THE
SERVICER
|
I-1
|
vi
This
Amended and Restated Purchase, Warranties and Servicing Agreement, dated as
of
December 1, 2004 is executed between UBS Real Estate Securities Inc., a Delaware
corporation with offices at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx XX 00000
as
Purchaser (the “Purchaser”), and SunTrust Mortgage, Inc. a Virginia corporation
with offices at 000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000, as seller and
servicer (the “Seller”).
WHEREAS,
the Purchaser desires to purchase from the Seller and the Seller desires to
sell
to the Purchaser, from time to time, certain Mortgage Loans that shall be
specified on (i) the related Mortgage Loan Schedule attached to the related
Assignment & Conveyance in the form attached hereto as Exhibit H1, pursuant
to the terms of a related letter agreement by and between the Seller and the
Purchaser each, a “Purchase Price and Terms Letter”), with respect to Mortgage
Loans which are not UBS Website Mortgage Loans, or (ii) the UBS Website with
respect to UBS Website Mortgage Loans;
WHEREAS,
each of the Mortgage Loans is secured by a mortgage, deed of trust or other
security instrument creating a first lien on a residential dwelling located
in
the jurisdiction indicated on (i) the related Mortgage Loan Schedule, which
is
to be annexed to the related Assignment and Conveyance in the form attached
hereto as Exhibit H1 with respect to Mortgage Loans which are not UBS Website
Mortgage Loans or (ii) the UBS Website with respect to UBS Website Mortgage
Loans; and
WHEREAS,
the Purchaser and the Seller wish to prescribe the representations and
warranties of the Seller with respect to itself and the Mortgage Loans and
the
management, servicing and control of the Mortgage Loans;
NOW,
THEREFORE, in consideration of the premises and mutual agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Purchaser and the Seller
agree
as follows:
ARTICLE
I
DEFINITIONS
|
Section
1.01
|
Defined
Terms.
|
Whenever
used in this Agreement, the following words and phrases, unless the context
otherwise requires, shall have the following meaning specified in this
Article:
Accepted
Servicing Practices: With respect to any Mortgage Loan, those mortgage servicing
practices (including collection procedures) of prudent mortgage banking and
mortgage lending institutions which service mortgage loans of the same type
as
such Mortgage Loan in the jurisdiction where the related Mortgaged Property
is
located, and which are in accordance with applicable law and FNMA and/or FHLMC
servicing practices and procedures.
1
Agreement:
This Amended and Restated Purchase, Warranties and Servicing Agreement including
all exhibits hereto, amendments hereof and supplements hereto.
Appraised
Value: The value set forth in an appraisal made in connection with the
origination of the related Mortgage Loan as the value of the Mortgaged
Property.
Assignment:
An individual assignment of the Mortgage, notice of transfer or equivalent
instrument, in recordable form, sufficient under the laws of the jurisdiction
wherein the related Mortgaged Property is located to reflect of record the
sale
or transfer of the Mortgage Loan.
Assignment
and Conveyance: An assignment and conveyance of the Mortgage Loans
purchased on a Closing Date in the form annexed hereto as Exhibit H1 with
respect to Mortgage Loans which are not UBS Website Mortgage Loans or Exhibit
H2
with respect to UBS Website Mortgage Loans.
Business
Day: Any day other than: (i) a Saturday or Sunday, or (ii) a legal holiday
in
the Commonwealth of Virginia or in the state of New York, or (iii) a day on
which banks in the Commonwealth of Virginia or in the state of New York are
authorized or obligated by law or executive order to be closed.
Closing
Date: The date or dates, set forth in the related Purchase Price and Terms
Letter, on which, from time to time, the Purchaser shall purchase and the Seller
shall sell the Mortgage Loans listed on the related Mortgage Loan Schedule
or,
with respect to UBS Website Mortgage Loans, set forth on the UBS
Website.
Code:
The
Internal Revenue Code of 1986, as amended.
Condemnation
Proceeds: All awards or settlements in respect of a Mortgaged Property, whether
permanent or temporary, partial or entire, by exercise of the power of eminent
domain or condemnation, to the extent not required to be released to a Mortgagor
in accordance with the terms of the related Mortgage Loan
Documents.
Convertible
Mortgage Loan : Any individual adjustable rate Mortgage Loan purchased pursuant
to this Agreement which contains a provision whereby the Mortgagor is permitted
to convert the Mortgage Loan to a fixed rate Mortgage Loan in accordance with
the terms of the related Mortgage Note.
Credit
Score: The credit score for each Mortgage Loan shall be the minimum of two
credit bureau scores obtained at origination or such other time by the Seller.
If two credit bureau scores are obtained, the Credit Score will be the lower
score. If three credit bureau scores are obtained, the Credit Score will be
the
middle of the three. When there is more than one applicant, the lowest of the
applicants Credit Scores will be used. There is only one (1) score for any
loan
regardless of the number of borrowers and/or applicants. The minimum Credit
Score for all Mortgage Loans will be in accordance with
the Underwriting Guidelines (as defined
below).
2
Custodial
Account: Each separate demand account or accounts created and maintained
pursuant to Section 4.04 and shall be established at an Eligible Institution,
in
the name of the Person that is the “Purchaser” with respect to the related
Mortgage Loans.
Cut-off
Date: With respect to Loans which are not UBS Website Mortgage Loans, the first
day of the month in which the related Closing Date occurs, or such other date
as
shall be specified in the related Purchase Price and Terms
Letter. With respect to UBS Website Mortgage Loans, the date on which
the related balances are reconciled for purchase, or such other date as may
be
mutually agreed upon by Purchaser and Seller.
Determination
Date: The 15th day (or if such 15th day is not a Business Day, the Business
Day
immediately preceding such 15th day) of the month of the related Remittance
Date.
Due
Date:
The day of the month on which the Monthly Payment is due on a Mortgage Loan,
exclusive of any days of grace.
Due
Period: With respect to any Remittance Date, the period commencing on the second
day of the month preceding the month of such Remittance Date and ending on
the
first day of the month of the Remittance Date.
Electronically: As
it applies to any record, communication, data, signature, including but not
limited to any manifestation of assent, such as “clicking” on an on screen icon,
word or graphic, shall mean any digital, analog, optical or magnetic means,
method, or process now known or hereafter developed, used to evidence such
item
or event.
Eligible
Account: An account established and maintained that has FDIC insurance (or
other
accounts with comparable insurance coverage acceptable to the Rating Agencies)
created, maintained and monitored by the Seller so that all funds deposited
therein are fully insured.
Eligible
Institution: An institution having (i) the highest short term debt rating,
and
one of the two highest long term debt ratings of the Rating Agencies, (ii)
with
respect to any Custodial Account, an unsecured long term debt rating of at
least
one of the two highest unsecured long term debt ratings of the Rating Agencies
or (iii) with respect to any Custodial Account in which buydown funds are
deposited, the highest long term debt rating by the Rating Agency.
Equity
Take Out Refinanced Mortgage Loan: A Refinanced Mortgage Loan the proceeds
of
which were in excess of the outstanding principal balance of the existing
mortgage loan.
3
Escrow
Account: Each separate trust account or accounts created and maintained pursuant
to Section 4.06 which shall be established at an Eligible Institution, in the
name of the Person that is the “Purchaser” with respect to the related Mortgage
Loans.
Escrow
Payments: With respect to any Mortgage Loan, the amounts constituting ground
rents, taxes, assessments, water rates, sewer rents, municipal charges, mortgage
insurance premiums, fire and hazard insurance premiums, condominium charges,
and
any other payments required to be escrowed by the Mortgagor with the mortgagee
pursuant to the Mortgage or any other document.
Event
of
Default: Any one of the conditions or circumstances enumerated in Section
9.01.
FDIC:
The
Federal Deposit Insurance Corporation, or any successor thereto.
FHLMC:
Xxxxxxx Mac, formerly know as the Federal Home Loan Mortgage Corporation, or
any
successor thereto.
FHLMC
Guides: The Xxxxxxx Xxx Xxxxxxx’ Guide and the Xxxxxxx Mac Servicers’ Guide and
all amendments or additions thereto.
Fidelity
Bond: A fidelity bond to be maintained by the Seller pursuant to Section
4.12.
FIRREA:
The Financial Institutions Reform, Recovery, and Enforcement Act of
1989.
FNMA:
Xxxxxx Mae, formerly known as the Federal National Mortgage Association, or
any
successor thereto.
FNMA
Guides: The Xxxxxx Xxx Xxxxxxx’ Guide and the Xxxxxx Mae Servicers’ Guide and
all amendments or additions thereto.
GAAP:
Generally accepted accounting principles, consistently applied.
Gross
Margin: With respect to each adjustable rate Mortgage Loan, the fixed percentage
amount set forth in the related Mortgage Note or on the UBS Website, as
applicable, to be added to the applicable Index to determine the Mortgage
Interest Rate.
HUD:
The
United States Department of Housing and Urban Development or any
successor.
Index:
A
rate per annum set forth on the applicable Mortgage Loan Schedule or the UBS
Website, as applicable.
4
Initial
Mortgage Interest Rate Cap: With respect to each adjustable rate
Mortgage Loan, the provision in a Mortgage Note that limits permissible
increases and decreases in the Mortgage Interest Rate on the first Interest
Rate
Adjustment Date to the amount set forth in the Mortgage Loan Schedule or the
UBS
Website, as applicable.
Insurance
Proceeds: With respect to each Mortgage Loan, proceeds of insurance policies
insuring the Mortgage Loan or the related Mortgaged Property.
Interest
Rate Adjustment Date: With respect to each adjustable rate Mortgage Loan, the
date, specified in the related Mortgage Note and the related Mortgage Loan
Schedule or the UBS Website, as applicable, on which the Mortgage Interest
Rate
is adjusted.
Lender-Paid
Mortgage Insurance Insurance Rate or LPMI Rate: With respect to any
mortgage loan, the Lender-Paid Mortgage Insurance Rate for any “lender-paid”
Primary Mortgage Insurance Policy shall be a per annum rate equal to the
percentage indicated on the Mortgage Loan Schedule or the UBS Website, as
applicable.
Liquidation
Proceeds: Cash received in connection with the liquidation of a defaulted
Mortgage Loan, whether through the sale or assignment of such Mortgage Loan,
trustee’s sale, foreclosure sale or otherwise.
Loan-to-Value
Ratio or LTV: With respect to any Mortgage Loan, the ratio of the original
outstanding principal amount of the Mortgage Loan, to (i) the Appraised Value
of
the Mortgaged Property at origination with respect to a Refinanced Mortgage
Loan, and (ii) the lesser of the Appraised Value of the Mortgaged Property
at
origination or the purchase price of the Mortgaged Property with respect to
all
other Mortgage Loans. The Loan-to-Value Ratio as of any date other than the
date
of origination shall be the then outstanding principal balance of the Mortgage
Loan divided by (i) the Appraised Value of the Mortgaged Property at origination
with respect to a Refinanced Mortgage Loan, and (ii) the lesser of the Appraised
Value of the Mortgaged Property at origination or the purchase price of the
Mortgaged Property, with respect to all other Mortgage Loans.
Maximum
Mortgage Interest Rate: The maximum annual rate at which interest accrues on
any
adjustable rate Mortgage Loan in accordance with the provisions of the related
Mortgage Note.
Minimum
Mortgage Interest Rate: The minimum annual rate at which interest accrues on
any
adjustable rate Mortgage Loan in accordance with the provisions of the related
Mortgage Note.
Monthly
Advance: The aggregate of the advances made by the Seller on any Remittance
Date
pursuant to Section 5.03.
5
Monthly
Payment : The scheduled monthly payment of principal and interest on a Mortgage
Loan which is payable by a Mortgagor under the related Mortgage
Note.
Mortgage: The
mortgage, deed of trust or other instrument securing a Mortgage Note which
creates a first or lien on an unsubordinated estate in fee simple in real
property securing the Mortgage Note; except that with respect to real property
located in jurisdictions in which the use of leasehold estates for residential
properties is a widely accepted practice, the mortgage, deed of trust or other
instrument securing the Mortgage Note may secure and create a first lien upon
a
leasehold estate of the Mortgagor.
Mortgage
File: The mortgage documents pertaining to a particular Mortgage Loan which
are
specified in Exhibit B hereto and any additional documents required to be added
to the Mortgage File pursuant to this Agreement.
Mortgage
Impairment Insurance Policy: A mortgage impairment or blanket hazard insurance
policy as required by Section 4.11.
Mortgage
Interest Rate: The annual rate at which interest accrues on any Mortgage Loan
in
accordance with the provisions of the related Mortgage Note, which shall be
adjusted from time to time with respect to adjustable rate Mortgage
Loans.
Mortgage
Interest Rate Cap: With respect to an adjustable rate Mortgage Loan, the limit
on each Mortgage Interest Rate adjustment as set forth in the related Mortgage
Note.
Mortgage
Loan: An individual Mortgage Loan, including a UBS Website Mortgage Loan, which
is the subject of this Agreement, each Mortgage Loan originally sold and subject
to this Agreement being identified on the applicable Mortgage Loan Schedule
or
the UBS Website, as applicable, which Mortgage Loan includes without limitation
the Mortgage File, the Monthly Payments, Principal Prepayments, Liquidation
Proceeds, Condemnation Proceeds, Insurance Proceeds, REO Disposition Proceeds,
and all other rights, benefits, proceeds and obligations arising from or in
connection with such Mortgage Loan, excluding replaced or repurchased mortgage
loans.
Mortgage
Loan Documents: The documents listed in Exhibit B.
Mortgage
Loan Remittance Rate: With respect to each Mortgage Loan, the annual rate of
interest remitted to the Purchaser, which shall be equal to the Mortgage
Interest Rate minus the Servicing Fee Rate and minus the LPMI Rate, if
any.
Mortgage
Loan Schedule: The schedule of Mortgage Loans annexed to the related Assignment
and Conveyance for the related pool of Mortgage Loans which are not UBS Website
Mortgage Loans, such schedule setting forth the following information, and/or
such other information as the parties may mutually agree upon in writing, with
respect to each Mortgage Loan in the related Mortgage Loan pool:
6
|
(1)
|
the
Seller’s Mortgage Loan identifying
number;
|
|
(2)
|
the
Mortgagor’s name;
|
|
(3)
|
the
street address of the Mortgaged Property including the city, state
and zip
code;
|
|
(4)
|
a
code indicating whether the Mortgaged Property is owner occupied
(i.e.,
primary residence, second residence, investor
property);
|
|
(5)
|
the
type of residential property constituting the Mortgaged
Property;
|
|
(6)
|
the
original months to maturity or the remaining months to maturity from
the
applicable Cut-off Date, in any case based on the original amortization
schedule and, if different, the maturity expressed in the same manner
but
based on the actual amortization
schedule;
|
|
(7)
|
the
Appraised Value, the purchase price of the Mortgage Property, if
applicable, and the Loan-to-Value Ratio at origination and at the
applicable Cut-off Date;
|
|
(8)
|
the
Mortgage Interest Rate at
origination;
|
|
(9)
|
the
Mortgage Interest Rate as of the applicable Cut-off
Date;
|
|
(10)
|
Mortgage
Loan Remittance Rate;
|
|
(11)
|
the
stated maturity date;
|
|
(12)
|
the
amount of the Monthly Payment as of the applicable Cut-off
Date;
|
|
(13)
|
the
original principal amount of the Mortgage
Loan;
|
|
(14)
|
the
principal balance of the Mortgage Loan as of the close of business
on the
applicable Cut-off Date, after deduction of payments of principal
due on
or before such Cut-off Date, whether or not
collected;
|
|
(15)
|
a
code indicating the purpose of the Mortgage Loan (i.e., purchase,
rate and
term refinance, equity take out
refinance);
|
7
|
(16)
|
a
code indicating the documentation style (i.e., full, alternative
or
reduced);
|
|
(17)
|
the
number of times during the twelve (12) month period preceding the
applicable Closing Date that any Monthly Payment has been received
thirty
(30) or more days after its Due
Date;
|
|
(18)
|
the
actual interest paid-to date (or actual next due date) as of the
applicable Cut-Off Date;
|
|
(19)
|
the
date on which the first payment is
due;
|
|
(20)
|
with
respect to adjustable rate Mortgage Loans, the initial Interest Rate
Adjustment Date;
|
|
(21)
|
with
respect to adjustable rate Mortgage Loans, the next Interest Rate
Adjustment Date;
|
|
(22)
|
with
respect to adjustable rate Mortgage Loans, the Gross
Margin;
|
|
(23)
|
with
respect to adjustable rate Mortgage Loans, the Maximum Mortgage Interest
Rate under the terms of the Mortgage
Note;
|
|
(24)
|
with
respect to adjustable rate Mortgage Loans, the Minimum Mortgage Interest
Rate under the terms of the Mortgage
Note;
|
|
(25)
|
with
respect to adjustable rate Mortgage Loans, a code indicating the
type of
Index;
|
|
(26)
|
with
respect to each adjustable rate Mortgage Loan, the type of adjustable
rate
Mortgage Loan (i.e., 3/1, 5/1, 7/1,
etc.)
|
|
(27)
|
a
code indicating whether the Mortgage Loan is a Convertible Mortgage
Loan;
|
|
(28)
|
a
code indicating whether or not the Mortgage Loan is the subject of
Primary
Mortgage Insurance;
|
|
(29)
|
a
code indicating the issuer of any related Primary Mortgage Insurance
Policy;
|
8
|
(30)
|
the
Credit Score of the Mortgagor;
|
|
(31)
|
the
Primary Mortgage Insurance certificate number, if
applicable;
|
|
(32)
|
the
Primary Mortgage Insurance coverage percentage, if
applicable;
|
|
(33)
|
the
LPMI Rate, if applicable;
|
|
(34)
|
a
code indicating if the Mortgage Loan is subject to a ground
lease;
|
|
(35)
|
a
code indicating whether or not the Mortgage Loan is the subject of
a
Prepayment Penalty as well as the terms of the prepayment
penalty;
|
|
(36)
|
The
Mortgage Interest Rate Cap with respect to adjustable rate Mortgage
Loans;
and
|
|
(37)
|
with
respect to adjustable rate Mortgage Loans, the Initial Mortgage Interest
Rate Cap;
|
|
(38)
|
The
Servicing Fee Rate with respect to such Mortgage
Loan.
|
With
respect to the aggregate Mortgage Loans in the pool, the related Mortgage Loan
Schedule shall set forth the following information, as of the applicable Cut-off
Date:
|
(1)
|
the
number of Mortgage Loans;
|
|
(2)
|
the
current aggregate outstanding principal balance of the Mortgage
Loans;
|
|
(3)
|
the
weighted average Mortgage Interest Rate of the Mortgage Loans;
and
|
|
(4)
|
the
weighted average maturity of the Mortgage
Loans.
|
Mortgage
Note: The note or other evidence of the indebtedness of a Mortgagor secured
by a
Mortgage.
Mortgaged
Property: The underlying real property securing repayment of a Mortgage Note,
consisting of a single parcel of real estate considered to be real estate under
the laws of the State in which such real property is located, which may include
condominium units and planned unit developments, improved by a residential
dwelling; except that with respect to real property located in jurisdictions
in
which the use of leasehold estates for residential properties is a widely
accepted practice, a leasehold estate of the Mortgagor, the term of which is
equal to or longer than the term of the Mortgage.
9
Mortgagor:
The obligor on a Mortgage Note.
OCC:
Office of the Comptroller of the Currency, its successors and
assigns.
Officers’
Certificate: A certificate signed by the Chairman of the Board, the Vice
Chairman of the Board, the President, a Senior Vice President or a Vice
President and by the Treasurer or the Secretary or one of the Assistant
Treasurers or Assistant Secretaries of the Seller, and delivered to the
Purchaser as required by this Agreement.
Opinion
of Counsel: A written opinion of counsel, who may be an employee of the party
on
behalf of whom the opinion is being given, reasonably acceptable to the
Purchaser.
OTS: Office
of Thrift Supervision, its successors and assigns.
Person:
Any individual, corporation, partnership, joint venture, association, joint
stock company, trust, unincorporated organization or government or any agency
or
political subdivision thereof.
Prepayment
Penalty: With respect to each Mortgage Loan, the penalty if the Mortgagor
prepays such Mortgage Loan as provided in the related Mortgage Note or
Mortgage.
Primary
Mortgage Insurance Policy: Each primary policy of mortgage insurance (including
any “lender-paid” mortgage insurance policy) represented to be in effect
pursuant to Section 3.02(ee), or any replacement policy therefor obtained by
the
Seller pursuant to Section 4.08.
Prime
Rate: The prime rate announced to be in effect from time to time as
published as the average rate in the Wall Street Journal (Northeast
Edition).
Principal
Prepayment: Any payment or other recovery of principal on a Mortgage Loan full
or partial which is received in advance of its scheduled Due Date, including
any
prepayment penalty or premium thereon and which is not accompanied by an amount
of interest representing scheduled interest due on any date or dates in any
month or months subsequent to the month of prepayment.
Purchase
Price: The price paid on the applicable Closing Date by the Purchaser to the
Seller in exchange for the Mortgage Loans purchased on such Closing Date as
calculated in Section 2.02 of this Agreement.
10
Purchase
Price and Terms Letter: As defined in the Recitals of this
Agreement.
Purchase
Price Premium: the excess of the Purchase Price over par, as applicable,
expressed as a percentage.
Purchaser: UBS
Real Estate Securities Inc., its successors in interest and
assigns.
Qualified
Appraiser: An appraiser who had no interest, direct or indirect in the Mortgaged
Property or in any loan made on the security thereof, and whose compensation
is
not affected by the approval or disapproval of the Mortgage Loan, and such
appraiser and the appraisal made by such appraiser both satisfy the requirements
set forth in the FNMA or FHLMC Guides and in Title XI of FIRREA and the
regulations promulgated thereunder, all as in effect on the date the Mortgage
Loan was originated.
Qualified
Insurer: An insurance company duly qualified as such under the laws of the
states in which the Mortgaged Properties are located, duly authorized and
licensed in such states to transact the applicable insurance business and to
write the insurance provided, approved as an insurer by FNMA and FHLMC and
whose
claims paying ability is rated in the two highest rating categories by Standard
& Poor’s, a division of the XxXxxx-Xxxx Companies, Inc., Xxxxx’x Investors
Service, Inc. and FitchInc. with respect to primary mortgage insurance and
in
the two highest rating categories for general policyholder rating and financial
performance index rating by A.M. Best Company with respect to hazard and flood
insurance.
Rating
Agencies: Standard & Poor’s, a division of McGraw Hill Companies, Inc.,
Moody’s Insurance Service, Inc. and Fitch, Inc. or, in the event that ownership
of the Mortgage Loans is evidenced by mortgage backed securities, the nationally
recognized rating agencies issuing ratings with respect to such securities,
if
any.
Reconstitution:
As defined in Section 11.17.
Reconstitution
Agreement: As defined in Section 11.17.
Refinanced
Mortgage Loan: A Mortgage Loan (including an Equity Take Out Refinanced Mortgage
Loan) which was made to a Mortgagor who owned the Mortgaged Property prior
to
the origination of such Mortgage Loan and the proceeds of which were used in
whole or part to satisfy an existing mortgage.
REMIC:
A
“real estate mortgage investment conduit,” as such term is defined in the
Code.
Remittance
Date: The 18th day of any month, beginning with the month following the month
of
the related Closing Date, or if such 18th day is not a Business Day, the first
Business Day immediately preceding such 18th day.
11
REO
Disposition : The final sale by the Seller of any REO Property.
REO
Disposition Proceeds: Amounts received by the Seller in connection with a
related REO Disposition.
REO
Property: A Mortgaged Property acquired by the Seller on behalf of the Purchaser
as described in Section 4.13.
Repurchase
Price: With respect to any Mortgage Loan, a price equal to (i) the unpaid
principal balance (“UPB”) of the Mortgage Loan on the date of repurchase, plus
(ii) interest on such outstanding principal balance at the Mortgage Interest
Rate from the last date through which interest has been paid and distributed
to
the Purchaser through the last day of the month of repurchase, plus (iii) the
Purchase Price Premium, if any, multiplied by the UPB on the date of repurchase,
plus (iv) third party expenses incurred in connection with the transfer of
the
Mortgage Loan being repurchased and any unreimbursed Servicing Advances with
respect to such Mortgage Loan, plus (v) any costs and damages incurred in
connection with any violation of such Mortgage Loan of any predatory or abusive
lending law; less (vi) amounts received or advanced in respect of such
repurchased Mortgage Loan which are being held in the Custodial Account for
distribution in the month of repurchase.
SAIF:
The
Savings Association Insurance Fund, or any successor thereto.
Seller:
SunTrust Mortgage, Inc. or any successor thereto pursuant to the terms
hereof.
Servicing
Advances: All customary, reasonable and necessary “out of pocket” costs and
expenses (including reasonable attorneys’ fees and disbursements) incurred in
the performance by the Seller of its servicing obligations, including, but
not
limited to, the cost of (a) the preservation, restoration and protection of
the
Mortgaged Property, (b) any enforcement, administrative or judicial proceedings,
or any legal work or advice specifically related to servicing the Mortgage
Loans, including but not limited to, foreclosures, bankruptcies, condemnations,
drug seizures, elections, foreclosures by subordinate or superior lienholders,
and other legal actions incidental to the servicing of the Mortgage Loans
(provided that such expenses are reasonable and that the Seller specifies the
Mortgage Loan(s) to which such expenses relate, and provided further that any
such enforcement, administrative or judicial proceeding does not arise out
of a
breach of any representation, warranty or covenant of the Seller hereunder),
(c)
the management and liquidation of the Mortgaged Property if the Mortgaged
Property is acquired in full or partial satisfaction of the Mortgage, (d) taxes,
assessments, water rates, sewer rates and other charges which are or may become
a lien upon the Mortgaged Property, and any Primary Mortgage Insurance Policy
premiums and fire and hazard insurance coverage, and (e) compliance with the
obligations under Section 4.08.
12
Servicing
Fee: With respect to each Mortgage Loan, the amount of the annual fee the
Purchaser shall pay to the Seller, which shall, for a period of one full month,
be equal to one twelfth of the product of (a) the Servicing Fee Rate and (b)
the
outstanding principal balance of such Mortgage Loan. Such fee shall be payable
monthly, computed on the basis of the same principal amount and period
respecting which any related interest payment on a Mortgage Loan is computed.
The obligation of the Purchaser to pay the Servicing Fee is limited to, and
the
Servicing Fee is payable solely from, the interest portion (including recoveries
with respect to interest from Liquidation Proceeds, to the extent permitted
by
Section 4.05) of such Monthly Payment collected by the Seller, or as otherwise
provided under Section 4.05.
Servicing
Fee Rate: The Servicing Fee Rate shall be a rate per annum set forth (i) in
the
related Purchase Price and Terms Letter and reflected on the Mortgage Loan
Schedule or (ii) on the UBS Website, as applicable.
Servicing
File: With respect to each Mortgage Loan, the file retained by the Seller
consisting of originals of all documents in the Mortgage File which are not
delivered to the Purchaser and copies of the Mortgage Loan Documents listed
in
Exhibit B, the originals of which are delivered to the Purchaser or its designee
pursuant to Section 2.04.
Servicing
Officer: Any officer of the Seller involved in, or responsible for, the
administration and servicing of the Mortgage Loans whose name appears on a
list
of servicing officers furnished by the Seller to the Purchaser upon request,
as
such list may from time to time be amended.
Stated
Principal Balance: As to each Mortgage Loan as of any date of determination,
(i)
the principal balance of such Mortgage Loan at the applicable Cut-off Date
after
giving effect to payments of principal due on or before such date, whether
or
not received, minus (ii) all amounts previously distributed to the Purchaser
with respect to the Mortgage Loan representing payments or recoveries of
principal or advances in lieu thereof.
Subservicer:
Any subservicer which is subservicing the Mortgage Loans pursuant to a
subservicing Agreement. Any subservicer shall meet the qualifications set forth
in Section 4.01.
Subservicing
Agreement: An agreement between the Seller and a Subservicer for the servicing
of the Mortgage Loans.
UBS
Website: The dedicated internet website, its sub-sites and other
information and requirements contained therein, maintained by or on behalf
of
the Purchaser for the purpose of purchasing UBS Website Mortgage
Loans.
UBS
Website Mortgage Loan: An individual Mortgage Loan subject to the
terms of this Agreement and transferred to the Purchaser pursuant to the terms
hereof and the UBS Website Program.
13
UBS
Website Program: The program instituted by the Purchaser for the
purpose of purchasing UBS Website Mortgage Loans pursuant to the UBS Website,
which are evidenced by the UBS Website, the related user agreement with the
related seller, this Agreement, and any other document executed in connection
therewith
Underwriting
Guidelines: The underwriting guidelines of the Seller as approved
by Purchaser, in effect at the time of origination of the related
Mortgage Loans, a copy of which is attached as Exhibit D hereto. Any amendments
to the Underwriting Guidelines shall be attached to the applicable Purchase
Price and Terms Letter or the UBS Website, as applicable.
ARTICLE
II
SERVICING
OF MORTGAGE LOANS; RECORD TITLE AND
POSSESSION
OF MORTGAGE FILES; BOOKS AND RECORDS;
DELIVERY
OF MORTGAGE LOAN DOCUMENTS
|
Section
2.01
|
Agreement
to Purchase.
|
The
Seller agrees to sell and the Purchaser agrees to purchase from time to time
the
Mortgage Loans having an aggregate principal balance on the applicable Cut-off
Date in an amount as set forth in the related Purchase Price and Terms Letter
or
the UBS Website, as applicable, or in such other amount as agreed by the
Purchaser and the Seller as evidenced by the actual aggregate principal balance
of the Mortgage Loans accepted by the Purchaser on the applicable Closing Date.
With respect to Mortgage Loans which are not UBS Website Mortgage Loans, the
Seller shall deliver the related Mortgage Loan Schedule for the Mortgage Loans
to be purchased on the applicable Closing Date to the Purchaser at least four
(4) Business Days prior to such Closing Date.
With
respect to UBS Website Mortgage Loans, in accordance with the requirements
of
the UBS Website Program, Seller will, prior to the respective Closing Date,
deliver the UBS Website Mortgage Loans to Purchaser or Purchaser’s designee by
delivering for each UBS Website Mortgage Loan: (1) all documents listed on
Exhibit B hereto, and (2) any other documents set forth on the UBS
Website.
|
Section
2.02
|
Purchase
Price.
|
The
Purchase Price for each Mortgage Loan shall be the percentage of par as stated
in the related Purchase Price and Terms Letter (subject to adjustment as
provided therein) or the UBS Website, multiplied by the aggregate Stated
Principal Balance, as of the applicable Cut-off Date, of the Mortgage Loans
listed on the related Mortgage Loan Schedule or the UBS Website, after
application of scheduled payments of principal due on or before the applicable
Cut-off Date, whether or not collected. If so provided in the related Purchase
Price and Terms Letter or the UBS Website, portions of the Mortgage Loans shall
be priced separately.
14
In
addition to the Purchase Price as described above, the Purchaser shall pay
to
the Seller, at closing, accrued interest on the current Stated Principal Balance
of the respective pool of Mortgage Loans, as of the applicable Cut-off Date
at
the weighted average Mortgage Loan Remittance Rate from such Cut-off Date
through the day prior to the related Closing Date, inclusive. The Purchase
Price
plus accrued interest as set forth in the preceding paragraph shall be paid
on
the applicable Closing Date by wire transfer of immediately available
funds.
The
Purchaser shall be entitled to (1) all scheduled principal due after the
applicable Cut-off Date, (2) all other recoveries of principal collected on
or
after such Cut-off Date (provided, however, that all scheduled payments of
principal due on or before such Cut-off Date and collected by the Seller or
any
successor servicer after such Cut-off Date shall belong to the Seller), and
(3)
all payments of interest on the Mortgage Loans net of applicable Servicing
Fees
and LPMI Rates, if applicable (minus that portion of any such payment which
is
allocable to the period prior to the applicable Cut-off Date). The outstanding
principal balance of each Mortgage Loan as of the applicable Cut-off Date is
determined after application of payments of principal due on or before such
Cut-off Date whether or not collected, together with any unscheduled principal
prepayments collected prior to such Cut-off Date; provided, however, that
payments of scheduled principal and interest prepaid for a Due Date beyond
the
applicable Cut-off Date shall not be applied to the principal balance as of
such
Cut-off Date. Such prepaid amounts shall be the property of the Purchaser.
The
Seller shall deposit any such prepaid amounts into the Custodial Account, which
account is established for the benefit of the Purchaser for subsequent
remittance by the Seller to the Purchaser.
|
Section
2.03
|
Servicing
of Mortgage Loans.
|
Simultaneously
with the execution and delivery of this Agreement, the Seller does hereby agree
to service the Mortgage Loans listed on each Mortgage Loan Schedule or the
UBS
Website, as applicable, that is subject to the terms of this Agreement. The
rights of the Purchaser to receive payments with respect to the related Mortgage
Loans shall be as set forth in this Agreement.
15
|
Section
2.04
|
Record
Title and Possession of Mortgage Files; Maintenance of Servicing
Files.
|
As
of the
applicable Closing Date, the Seller shall execute and deliver to the Purchaser
an Assignment and Conveyance in the form of Exhibit H1 hereto with respect
to
Mortgage Loans which are not UBS Website Mortgage Loans, or Electronically
execute (as set forth in Section 11.24) an Assignment and Conveyance in the
form
of Exhibit H2 hereto with respect to UBS Website Mortgage Loans, pursuant to
which the Seller shall sell, transfer, set over and convey the Mortgage Loans
to
the Purchaser, without recourse, and the Seller hereby acknowledges that the
Purchaser shall have subject to the terms of this Agreement, all the right,
title and interest of the Seller in and to the Mortgage Loans. The delivery
of
the Mortgage Files shall be on the applicable Closing Date at the expense of
the
Seller. The Seller shall maintain a Servicing File consisting of a copy of
the
contents of each Mortgage File and the originals of the documents in each
Mortgage File not delivered to the Purchaser. The Servicing File shall contain
all documents necessary to service the Mortgage Loans. The possession of each
Servicing File by the Seller is at the will of the Purchaser, for the sole
purpose of servicing the related Mortgage Loan, and such retention and
possession by the Seller is in a custodial capacity only. From the applicable
Closing Date, the ownership of each related Mortgage Loan, including the
Mortgage Note, the Mortgage, the contents of the related Mortgage File and
all
rights, benefits, proceeds and obligations arising therefrom or in connection
therewith, shall be vested in the Purchaser. All rights arising out of the
Mortgage Loans including, but not limited to, all funds received on or in
connection with the Mortgage Loans and all records or documents with respect
to
the Mortgage Loans prepared by or which come into the possession of the Seller
shall be received and held by the Seller in trust for the benefit of the
Purchaser as the owner of the Mortgage Loans. Any portion of the Mortgage Files
retained by the Seller shall be appropriately identified in the Seller’s
computer system to clearly reflect the ownership of the Mortgage Loans by the
Purchaser. The Seller shall release its custody of the contents of the Mortgage
Files only in accordance with written instructions of the Purchaser, except
when
such release is required as incidental to the Seller’s servicing of the Mortgage
Loans or is in connection with a repurchase of any Mortgage Loan or Loans with
respect thereto pursuant to this Agreement, such written instructions shall
not
be required.
|
Section
2.05
|
Books
and Records.
|
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 the Mortgage Loans which shall be appropriately
identified in the Seller’s computer system to clearly reflect the ownership of
each Mortgage Loan by the Purchaser. In particular, the Seller shall maintain
in
its possession, available for inspection by the Purchaser, or its designee
and
shall deliver to the Purchaser upon demand, evidence of compliance with all
federal, state and local laws, rules and regulations, and requirements of FNMA
or FHLMC, as applicable, including but not limited to documentation as to the
method used in determining the applicability of the provisions of the Flood
Disaster Protection Act of 1973, as amended, to the Mortgaged Property,
documentation evidencing insurance coverage and eligibility of any condominium
project for approval by FNMA or FHLMC (if required under the
Underwriting Guidelines) and periodic inspection reports as required by Section
4.13. To the extent that original documents are not required for purposes of
realization of Liquidation Proceeds or Insurance Proceeds, documents maintained
by the Seller may be in the form of microfilm or microfiche or such other
reliable means of recreating original documents. The Seller shall maintain
with
respect to each Mortgage Loan and shall make available for inspection by any
Purchaser or its designee the related Servicing File during the time the
Purchaser retains ownership of a Mortgage Loan and thereafter in accordance
with
applicable laws and regulations.
16
In
addition to the foregoing, Seller shall provide to any supervisory agents or
examiners that regulate Purchaser, including but not limited to, the OTS, the
FDIC and other similar entities, access, during normal business hours, upon
reasonable advance notice to Seller and without charge to Seller or such
supervisory agents or examiners, any documentation regarding the Mortgage Loans
that may be required by any applicable regulations or regulator.
|
Section
2.06
|
Transfer
of Mortgage Loans.
|
The
Seller shall keep at its servicing office books and records in which, subject
to
such reasonable regulations as it may prescribe, the Seller shall note transfers
of Mortgage Loans. No transfer of a Mortgage Loan may be made unless such
transfer is in compliance with the terms hereof. For the purposes of this
Agreement, the Seller shall be under no obligation to deal with any person
with
respect to this Agreement or any Mortgage Loan unless a notice of the transfer
of such Mortgage Loan has been delivered to the Seller in accordance with this
Section 2.06.The Purchaser may, subject to the terms of this Agreement, sell
and
transfer one or more of the Mortgage Loans, provided, however, that the
transferee will not be deemed to be a Purchaser hereunder binding upon the
Seller unless a copy of an Assignment, Assumption and Recognition Agreement
of
this Agreement, mutually agreeable to the parties, executed by the transferee
shall have been delivered to the Seller. The Purchaser also shall advise the
Seller of the transfer. Upon receipt of notice of the transfer, the Seller
shall
xxxx its books and records to reflect the ownership of the Mortgage Loans of
such assignee, and the previous Purchaser shall be released from its obligations
hereunder with respect to the Mortgage Loans sold or transferred.
|
Section
2.07
|
Examination
of Mortgage Files; Delivery of Mortgage Loan
Documents.
|
With
respect to Mortgage Loans which are not UBS Website Mortgage Loans, prior to
or
following each Closing Date (as mutually agreed upon by the parties and
specified in the applicable Purchase Price and Terms Letter), the Seller shall,
at the Purchaser’s option, (a) deliver to the Purchaser or its designee in
escrow, for examination with respect to each Mortgage Loan to be purchased
(or
such percentage sample of Mortgage Loans as mutually agreed upon by the parties
and specified in the applicable Purchase Price and Terms Letter), the related
Mortgage File, including a copy of the Assignment, pertaining to each Mortgage
Loan, or (b) make the related Mortgage File available to the Purchaser, or
its
designee, for examination at the Seller’s offices or such other location as
shall otherwise be agreed upon by the Purchaser and the Seller. Such examination
may be made by the Purchaser or its designee upon reasonable notice to the
Seller and during normal business hours at a time acceptable to the Purchaser
for purposes of ensuring that the Mortgage Loans have been underwritten in
accordance with the Underwriting Guidelines and to ensure conformity with the
terms of the related Purchase Price and Terms Letter. If the Purchaser makes
such examination prior to the related Closing Date and determines, in
its sole discretion, that any Mortgage Loan does not so conform to the
Underwriting Guidelines, this agreement or the terms of the related Purchase
Price and Terms Letter, such Mortgage Loans shall be deleted from the related
Mortgage Loan Schedule, and may, at the Purchaser’s option, be replaced by a
substitute Mortgage Loan which meets the requirements set forth in Section
3.03.
If the Purchaser makes such examination after the related Closing Date
and determines, in its sole discretion, that any Mortgage Loan does not so
conform to the Underwriting Guidelines or the terms of the related Purchase
Price and Terms Letter, Seller shall repurchase such Mortgage Loan(s), at the
Repurchase Price, upon Purchaser’s written notice. The Purchaser may, at its
option and without notice to the Seller, purchase some or all of the Mortgage
Loans without conducting any partial or complete examination. The fact that
the
Purchaser or its designee has conducted or has failed to conduct any partial
or
complete examination of the Mortgage Files shall not affect the Purchaser’s (or
any of its successor’s) rights to demand repurchase, substitution or other
relief as provided herein.
17
With
respect to UBS Website Mortgage Loans, the Purchaser or the Purchaser’s designee
may perform due diligence reviews on the related credit file and legal file
relating to such UBS Website Mortgage Loan. If the Purchaser makes
such examination prior to the Closing Date and identifies any UBS Website
Mortgage Loans that do not conform in any material respect to the terms of
the
Underwriting Guidelines, such UBS Website Mortgage Loans may, at the Purchaser’s
option, be rejected for purchase by the Purchaser. The Purchaser may, at its
option, purchase a UBS Website Mortgage Loan without conducting any partial
or
complete examination. The fact that the Purchaser has conducted or has
determined not to conduct any partial or complete examination of the Mortgage
Files shall not affect the Purchaser’s (or any of its successors’) rights to
demand repurchase or other relief or remedy provided for in this
Agreement. The results of any such due diligence review will be
posted on the UBS Website. Based upon the results of such due
diligence review, a final rate-lock quote will be generated, which quote may
be
accepted or rejected by the Seller in accordance with the provisions and
procedures set forth in the UBS Website. If the Seller accepts (or is
deemed to accept) such rate-lock quote, the Seller shall sell, and the Purchaser
shall purchase, such UBS Website Mortgage Loan on the related Closing Date
for a
purchase price based on the percentage of par set forth in the final rate-lock
quote.
18
On
each
Closing Date, the Seller shall release to the Purchaser or its designee the
related Mortgage Loan Documents. With respect to Mortgage Loans which are not
UBS Website Mortgage Loans, no later than four (4) Business Days prior to each
Closing Date, and notwithstanding the preceding paragraph, the related Mortgage
Loan Documents enumerated as items (1), (2), (3), (4), (5), (6), (7), (8),
and
(15) in Exhibit B hereto shall be delivered by the Seller to the Purchaser’s
designee pursuant to a bailee letter agreement. The remaining documents
constituting the Mortgage Loan Documents shall be part of the Servicing File
and
shall be held by the Seller separately as custodian and for the sole benefit
and
on behalf of the Purchaser, and shall be delivered, at the Purchaser’s request,
to the Purchaser or its designee within (5) Business Days from such request.
If
the Seller cannot deliver the original recorded Mortgage Loan Documents or
the
original policy of title insurance, including riders and endorsements thereto,
on the applicable Closing Date, the Seller shall, promptly upon receipt thereof
and in any case not later than 90 days from such Closing Date, deliver such
original documents, including original recorded documents, to the Purchaser
or
its designee (unless the Seller is delayed in making such delivery by reason
of
the fact that such documents shall not have been returned by the appropriate
recording office). If delivery is not completed within 90 days solely due to
delays in making such delivery by reason of the fact that such documents shall
not have been returned by the appropriate recording office, the Seller shall
deliver such documents to the Purchaser, or its designee, within such time
period as specified in an Officer’s Certificate stating the date by
which Seller expects to receive any missing documents sent for recording from
the applicable recording office. In the event that documents have not been
received by the date specified in the Officer’s Certificate, a
subsequent Officer’s Certificate shall be delivered by such date
specified in the prior Officer’s Certificate, stating a revised date
for receipt of documentation. The procedure shall be repeated until the
documents have been received and delivered. The Seller shall continue to use
its
best efforts to effect delivery within 180 days of the applicable Closing Date;
provided however, that if delivery is not completed within 180 days of such
Closing Date, at the Purchaser’s option, the Seller will repurchase
such Mortgage Loan in accordance with Section 3.03, or the Purchaser,
in its sole discretion, will extend in writing the time period for Seller to
effect delivery; and further provided that at the expiration of such extension,
if the documents have not been received, Seller, at Purchaser’s option will
repurchase such Mortgage Loan in accordance with Section 3.03.
The
Seller shall pay all initial recording fees for the Assignments and any other
fees in connection with the transfer of all original documents to the Purchaser
or its designee. The Seller shall prepare, in recordable form, all Assignments
necessary to assign the Mortgage Loans to Purchaser, or its designee. The Seller
shall be responsible for recording the Assignments in accordance with and at
the
direction of the Purchaser.
To
the
extent not delivered on the applicable Closing Date, the Seller shall provide
a
copy of the title insurance policy to the Purchaser or its designee within
ninety (90) days of the applicable Closing Date.
Any
review by the Purchaser, or its designee, of the Mortgage Files shall in no
way
alter or reduce the Seller’s obligations hereunder.
19
The
Seller shall forward to the Purchaser, or its designee, original documents
evidencing an assumption, modification, consolidation or extension of any
Mortgage Loan entered into in accordance with Section 4.01 or Section 6.01
within one week of their execution; provided, however, that the Seller shall
provide the Purchaser, or its designee, with a certified true copy of any such
document submitted for recordation within one week of its execution, and shall
provide the original of any document submitted for recordation or a copy of
such
document certified by the appropriate public recording office to be a true
and
complete copy of the original within sixty (60) days of its submission for
recordation.
From
time
to time the Seller may have a need for Mortgage Loan Documents to be released
from Purchaser, or its designee. The Purchaser shall, upon the written request
of the Seller, within ten (10) Business Days, deliver (or cause to be delivered)
to the Seller, any requested documentation previously delivered to Purchaser,
or
its designee, as part of the Mortgage File, provided that such documentation
is
promptly returned to Purchaser, or its designee, as the case may be, when the
Seller no longer requires possession of the document, and provided that during
the time that any such documentation is held by the Seller, such possession
is
in trust for the benefit of Purchaser. The Seller shall indemnify the Purchaser
from and against any and all losses, claims, damages, penalties, fines,
forfeitures, costs and expenses (including court costs and reasonable attorney’s
fees) resulting from or related to the loss, damage, or misplacement of any
documentation delivered to the Seller pursuant to this paragraph.
With
respect to UBS Website Mortgage Loans, the Seller may, from time to time, offer
for sale a UBS Website Mortgage Loan pursuant to the UBS Website
Program. In connection with such offer, the Seller shall upload onto
the UBS Website all parameters required on the UBS Website in order for the
issuance of a preliminary rate-lock quote. The UBS Website shall
generate a rate-lock quote based on the parameters uploaded by the
Seller. If the Seller accepts such quote, it shall indicate its
acceptance on the UBS Website. The Seller acknowledges that any
rate-lock quote issued pursuant to the UBS Website is conditioned upon the
satisfactory loan due diligence described herein and as further set forth in
UBS
Website Program documents. In accordance with the requirements of the
UBS Website Program, Seller will, prior to the respective Closing Date, deliver
UBS Website Mortgage Loans to Purchaser or Purchaser’s designee by delivering
for each UBS Website Mortgage Loan: (1) all documents listed on Exhibit B
hereto, and (2) any other documents set forth on the UBS Website.
|
Section
2.08
|
Quality
Control Procedures.
|
The
Seller must have an internal quality control program that verifies, on a regular
basis, the existence and accuracy of the legal documents, credit documents,
property appraisals, and underwriting decisions. The program must be capable
of
evaluating and monitoring the overall quality of its loan production and
servicing activities. The program is to ensure that the Mortgage Loans are
originated and serviced in accordance with prudent mortgage banking practices
and accounting principles; guard against dishonest, fraudulent, or negligent
acts; and guard against errors and omissions by officers, employees, or other
authorized persons.
20
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF THE SELLER;
REPURCHASE;
REVIEW OF MORTGAGE LOANS
|
Section
3.01
|
Representations
and Warranties of the Seller.
|
The
Seller represents, warrants and covenants to the Purchaser that as of each
Closing Date or as of such date specifically provided herein:
(a) The
Seller is duly organized, validly existing and in good standing under the laws
of the state of its formation and has all licenses necessary to carry out its
business as now being conducted, and is licensed and qualified to transact
business in and is in good standing under the laws of each state in which any
Mortgaged Property is located or is otherwise exempt under applicable law from
such licensing or qualification or is otherwise not required under applicable
law to effect such licensing or qualification and no demand for such licensing
or qualification has been made upon such Seller by any such state, and in any
event such Seller is in compliance with the laws of any such state to the extent
necessary to ensure the enforceability of each Mortgage Loan and the servicing
of the Mortgage Loans in accordance with the terms of this
Agreement;
(b) The
Seller has the full power and authority and legal right to hold, transfer and
convey each Mortgage Loan, to sell each Mortgage Loan and to execute, deliver
and perform, and to enter into and consummate all transactions contemplated
by
this Agreement and to conduct its business as presently conducted, has duly
authorized the execution, delivery and performance of this Agreement and any
agreements contemplated hereby, has duly executed and delivered this Agreement,
and any agreements contemplated hereby, and this Agreement and each Assignment
to the Purchaser and any agreement contemplated hereby, constitutes a legal,
valid and binding obligation of the Seller, enforceable against it in accordance
with its terms, and all requisite corporate action has been taken by the Seller
to make this Agreement and all agreements contemplated hereby valid and binding
upon the Seller in accordance with their terms;
(c) 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 charter or by laws or
materially conflict with or result in a material breach of any of the terms,
conditions or provisions of any legal restriction or any agreement or instrument
to which the 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;
21
(d) There
is
no litigation, suit, proceeding or investigation pending or, to the Seller’s
knowledge, threatened, or any order or decree outstanding, with respect to
the
Seller which is reasonably likely to have a material adverse effect on the
sale
of the Mortgage Loans, the execution, delivery, performance or enforceability
of
this Agreement, or which is reasonably likely to have a material adverse effect
on the financial condition of the Seller;
(e) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Seller
of or
compliance by the Seller with this Agreement, except for consents, approvals,
authorizations and orders which have been obtained;
(f) The
consummation of the transactions contemplated by this Agreement is in the
ordinary course of business of the 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;
(g) The
Seller will treat the sale of the Mortgage Loans to the Purchaser as a sale
for
reporting and accounting purposes and, to the extent appropriate, for federal
income tax purposes;
(h) Seller
is
an approved seller/servicer of residential fixed and adjustable rate mortgage
loans for FNMAandFHLMC and is a HUD approved mortgage pursuant to Section 203
of
the National Housing Act, with such facilities, procedures and personnel
necessary for the sound servicing of mortgage loans of the same type as the
Mortgage Loans. The Seller is duly qualified, licensed, registered and otherwise
authorized under all applicable federal, state and local laws, and regulations,
if applicable, meets the minimum capital requirements set forth by the OCC,
and
is in good standing to sell mortgage loans to and service mortgage loans for
FNMAand FHLMC and no event has occurred which would make Seller unable to comply
with eligibility requirements or which would require notification to either
FNMA
or FHLMC;
(i) The
Seller does not believe, nor does it have any cause or reason to believe, that
it cannot perform each and every covenant contained in this Agreement. The
Seller is solvent and the sale of the Mortgage Loans will not cause the Seller
to become insolvent. The sale of the Mortgage Loans is not undertaken with
the
intent to hinder, delay or defraud any of the Seller’s creditors;
(j) No
statement, tape, diskette, form, report or other document prepared by, or on
behalf of, Seller pursuant to this Agreement or in connection with the
transactions contemplated hereby, contains or will contain any statement that
is
or will be inaccurate or misleading in any material respect;
22
(k) The
Seller acknowledges and agrees that the Servicing Fee represents reasonable
compensation for performing such services and that the entire Servicing Fee
shall be treated by the Seller, for accounting and tax purposes, as compensation
for the servicing and administration of the Mortgage Loans pursuant to this
Agreement and the consideration received by the Seller upon the sale of the
Mortgage Loans hereunder constitutes fair consideration and reasonably
equivalent value for the Mortgage Loans;
(l) The
Seller has delivered to the Purchaser financial statements as to its last two
complete fiscal years. All such financial statements fairly present the
pertinent results of operations and changes in financial position for each
of
such periods and the financial position at the end of each such period of the
Seller and its subsidiaries and have been prepared in accordance with GAAP
consistently applied throughout the periods involved, except as set forth in
the
notes thereto. There has been no change in the business, operations, financial
condition, properties or assets of the Seller since the date of the Seller’s
financial statements that would have a material adverse effect on its ability
to
perform its obligations under this Agreement;
(m) Except
as
disclosed in this Agreement, the Seller has not dealt with any broker,
investment banker, agent or other person that may be entitled to any commission
or compensation in connection with the sale of the Mortgage Loans pursuant
to
this Agreement. Seller will pay any commission or compensation to any broker,
investment banker, agent or other person who may be entitled thereto in
connection with the sale of the Mortgage Loans pursuant to this Agreement.
Nothing in this Section 3.01(m) shall prohibit or limit Seller’s use of a
mortgage loan broker in connection with the origination of any Mortgage Loan,
and Seller has paid any commission or compensation to any mortgage loan broker
and/or correspondent lenders who may be entitled thereto in connection with
the
origination of any Mortgage Loan.
|
Section
3.02
|
Representations
and Warranties as to Individual Mortgage
Loans.
|
References
in this Section to percentages of Mortgage Loans refer in each case to the
percentage of the aggregate principal balance of the applicable pool of Mortgage
Loans as of the related Cut-off Date, based on the outstanding Stated Principal
Balances of the Mortgage Loans as of such Cut-off Date, and giving effect to
scheduled Monthly Payments due on or prior to such Cut-off Date, whether or
not
received. References to percentages of Mortgaged Properties refer, in each
case,
to the percentages of expected aggregate Stated Principal Balances of the
related Mortgage Loans (determined as described in the preceding sentence).
The
Seller hereby represents and warrants to the Purchaser, as to each Mortgage
Loan, as of the related Closing Date as follows:
23
(a) The
information set forth in the related Mortgage Loan Schedule and the related
magnetic tape(s) or diskette(s) or uploaded onto the UBS Website is complete,
true and correct;
(b) The
Mortgage creates a valid first lien, as specified in the applicable Purchase
Price and Terms Letter and Mortgage Loan Schedule or the UBS Website, or a
first
priority ownership interest, in an estate in fee simple in real property
securing the related Mortgage Note;
(c) All
payments due prior to the applicable Cut-off Date for such Mortgage Loan have
been made as of the related Closing Date, the Mortgage Loan has not been
dishonored; there are no material defaults under the terms of the Mortgage
Loan;
the 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; the Mortgage Loan is not delinquent and there
has
been no more than one delinquency during the preceding twelve (12) month period
and such delinquency did not exceed more than one scheduled Monthly Payment
overdue; for purposes of this paragraph, a Mortgage Loan will be deemed
delinquent if any payment due thereunder was not paid by the Mortgage in the
month such payment was due.
(d) There
are
no defaults in complying with the terms of the Mortgage, and all taxes,
governmental assessments, insurance premiums, water, sewer and municipal
charges, leasehold payments or ground rents which previously became due and
owing have been paid, or escrow funds have been established in an amount
sufficient to pay for every such escrowed item which remains unpaid and which
has been assessed but is not yet due and payable;
(e) The
terms
of the Mortgage Note and the Mortgage have not been impaired, waived, altered
or
modified in any respect, except by written instruments which have been recorded
to the extent any such recordation is required by law, or, necessary to protect
the interest of the Purchaser. No instrument of waiver, alteration or
modification has been executed, and no Mortgagor has been released, in whole
or
in part, from the terms thereof except in connection with an assumption
agreement and which assumption agreement is part of the Mortgage File and the
terms of which are reflected in the related Mortgage Loan Schedule or the UBS
Website, as applicable; the substance of any such waiver, alteration or
modification has been approved by the issuer of any related Primary Mortgage
Insurance Policy and title insurance policy, to the extent required by the
related policies;
(f) The
Mortgage Note and the Mortgage are not subject to any right of rescission,
set
off, counterclaim or defense, including, without limitation, the defense of
usury, nor will the operation of any of the terms of the Mortgage Note or the
Mortgage, or the exercise of any right thereunder, render the Mortgage Note
or
Mortgage unenforceable, in whole or in part, or subject to any right of
rescission, set off, counterclaim or defense, including the defense of usury,
and no such right of rescission, set off, counterclaim or defense has been
asserted with respect thereto, and the Mortgagor was not a debtor in any state
or federal bankruptcy or insolvency proceeding as of the Closing
Date;
24
(g) All
buildings or other customarily insured improvements upon the Mortgaged Property,
are insured by an insurer acceptable under the FNMA or FHLMC Guides, against
loss by fire, hazards of extended coverage and such other hazards as are
provided for in the FNMA or FHLMC Guides and by FNMA or FHLMC, as well as all
additional requirements set forth in Section 4.10 of this Agreement. All such
standard hazard policies are in full force and effect and on the date of
origination contained a standard mortgagee clause naming the Seller and its
successors in interest and assigns as loss payee and such clause is still in
effect and all premiums due thereon have been paid. If required by the Flood
Disaster Protection Act of 1973, as amended, the Mortgage Loan is covered by
a
flood insurance policy meeting the requirements of the current guidelines of
the
Federal Insurance Administration which policy conforms to FNMA and FHLMC
requirements, as well as all additional requirements set forth in Section 4.10
of this Agreement. Such policy was issued by an insurer acceptable under FNMA
or
FHLMC guidelines. The Mortgage obligates the Mortgagor thereunder to maintain
all such insurance at the Mortgagor’s cost and expense, and on the Mortgagor’s
failure to do so, authorizes the holder of the Mortgage to maintain such
insurance at the Mortgagor’s cost and expense and to seek reimbursement therefor
from the Mortgagor;
(h) Any
and
all requirements of any federal, state or local law including, without
limitation, usury, truth in lending, real estate settlement procedures, consumer
credit protection, equal credit opportunity, predatory and abusive lending
laws,
or disclosure laws applicable to the Mortgage Loan have been complied with,
the
consummation of the transactions contemplated hereby will not involve the
violation of any such laws or regulations, and the Seller shall maintain in
its
possession, available for the Purchaser’s inspection, and shall deliver to the
Purchaser upon demand, evidence of compliance with all such
requirements;
(i) The
Mortgage has not been satisfied, canceled or subordinated, in whole or in part,
or rescinded, and the Mortgaged Property has not been released from the lien
of
the Mortgage, in whole or in part nor has any instrument been executed that
would effect any such release, cancellation, subordination or rescission. The
Seller has not waived the performance by the Mortgagor of any action, if the
Mortgagor’s failure to perform such action would cause the Mortgage Loan to be
in default, nor has the Seller waived any default resulting from any action
or
inaction by the Mortgagor;
25
(j) The
Mortgage is a valid, subsisting, enforceable and perfected first lien on the
Mortgaged Property, including all buildings on the Mortgaged Property and all
installations and mechanical, electrical, plumbing, heating and air conditioning
systems affixed to such buildings, and all additions, alterations and
replacements made at any time with respect to the foregoing securing the
Mortgage Note’s original principal balance. The Mortgage and the Mortgage Note
do not contain any evidence of any security interest or other interest or right
thereto, other than the interest of Seller. Such lien is free and clear of
all
adverse claims, liens and encumbrances having priority over the lien
of the Mortgage subject only to (1) the lien of non-delinquent current real
property taxes and assessments not yet due and payable, (2) covenants,
conditions and restrictions, rights of way, easements and other matters of
the
public record as of the date of recording which are acceptable to mortgage
lending institutions generally and either (A) which are referred to 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 (3) other matters to which like properties
are
commonly subject which do not materially interfere with the benefits of the
security intended to be provided by the Mortgage or the use, enjoyment, value
or
marketability of the related Mortgaged Property. Any security agreement, chattel
mortgage or equivalent document related to and delivered in connection with
the
Mortgage Loan establishes and creates a valid, subsisting, enforceable and
perfected first lien and first priority security interest, on the property
described therein, and the Seller has the full right to sell and assign the
same
to the Purchaser;
(k) The
Mortgage Note and the related Mortgage are original and genuine and each is
the
legal, valid and binding obligation of the maker thereof, enforceable in all
respects in accordance with its terms subject to 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. No fraud, error, omission,
misrepresentation, negligence or similar occurrence with respect to a Mortgage
Loan has taken place on the part of any Person, including, without limitation,
the Seller, the Mortgagor, or any other party involved in the origination of
the
Mortgage Loan. The proceeds of the Mortgage Loan have been fully disbursed
and
there is no requirement for future advances thereunder, and any and all
requirements as to completion of any on site or off site improvements and as
to
disbursements of any escrow funds therefor have been complied with,. All costs,
fees and expenses incurred in making or closing the Mortgage Loan and the
recording of the Mortgage were paid or are in the process of being paid, and
the
Mortgagor is not entitled to any refund of any amounts paid or due under the
Mortgage Note or Mortgage;
26
(l) The
Seller is the sole owner of record and holder of the Mortgage Loan and the
indebtedness evidenced by the Mortgage Note, and upon recordation the Seller
will be the owner of record of the Mortgage and the indebtedness evidenced
by
the Mortgage Note, and upon the sale of the Mortgage Loan to the Purchaser,
the
Seller will retain the Mortgage File or any part thereof with respect thereto
not delivered to the Purchaser or the Purchaser’s designee in trust only for the
purpose of servicing and supervising the servicing of the Mortgage Loan.
Immediately prior to the transfer and assignment to the Purchaser, the Mortgage
Loan, including the Mortgage Note and the Mortgage, were not subject to an
assignment 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 and has the full right and authority subject
to no interest or participation of, or agreement with, any other party, to
sell
and assign the Mortgage Loan pursuant to this Agreement and following the sale
of the Mortgage Loan, the Purchaser will own such Mortgage Loan free and clear
of any encumbrance, equity, participation interest, lien, pledge, charge, claim
or security interest. The Seller intends to relinquish all rights to possess,
control and monitor the Mortgage Loan, except for the purposes of servicing
the
Mortgage Loan as set forth in this Agreement. After the applicable Closing
Date,
the Seller will have no right to modify or alter the terms of the sale of the
Mortgage Loan and the Seller will have no obligation or right to repurchase
the
Mortgage Loan or substitute another Mortgage Loan, except as provided in this
Agreement, or as otherwise agreed to by the Seller and the
Purchaser;
(m) The
Mortgage Loan is covered by an ALTA lender’s title insurance policy or other
generally acceptable form of policy or insurance acceptable to FNMA or FHLMC,
issued by a title insurer acceptable to FNMA or FHLMC and qualified to do
business in the jurisdiction where the Mortgaged Property is located, insuring
(subject to the exceptions contained in (j) (1), (2) and (3) above) the Seller,
its successors and assigns, as to the first priority lien of the Mortgage in
the
original principal amount of the Mortgage Loan and in the case of adjustable
rate Mortgage Loans, against any loss by reason of the invalidity or
unenforceability of the lien resulting from the provisions of the Mortgage
providing for adjustment to the Mortgage Interest Rate and Monthly Payment.
Such
lender’s title insurance policy affirmatively insures ingress and egress and
against encroachment by or upon the Mortgaged Property or any interest therein
and contains any customary, environmental indemnity. Where required by state
law
or regulation, the Mortgagor has been given the opportunity to choose the
carrier of the required mortgage title insurance. The Seller, its successors
and
assigns, are the sole insureds 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, including the Seller, has done, by act
or
omission, anything which would impair the coverage of such lender’s title
insurance policy.
(n) There
is
no default, breach, violation or event of acceleration existing under the
Mortgage or the related Mortgage Note, and no event which, with the passage
of
time or with notice and the expiration of any grace or cure period, would
constitute a default, breach, violation or event permitting acceleration; and
neither the Seller nor any prior mortgagee has waived any default, breach,
violation or event permitting acceleration;
27
(o) There
are
no mechanics’, or similar liens or claims which have been filed for work, labor
or material (and no rights are outstanding that under law could give rise to
such liens) affecting the related Mortgaged Property which are or may be liens
prior to or equal to the lien of the related Mortgage;
(p) All
improvements subject to the Mortgage which were considered in determining the
Appraised Value of the Mortgaged Property lie wholly within the boundaries
and
building restriction lines of the Mortgaged Property (and wholly within the
project with respect to a condominium unit) and no improvements on adjoining
properties encroach upon the Mortgaged Property except those which are insured
against by the title insurance policy referred to in clause (m) above and all
improvements on the property comply with all applicable zoning and subdivision
laws and ordinances; the Mortgaged Property is lawfully occupied under
applicable law;
(q) The
Mortgage Loan was originated by or for the Seller. The Mortgage Loan complies
with all the terms, conditions and requirements of the Underwriting
Guidelines in effect at the time of origination of such Mortgage
Loan. The Mortgage Loans are all considered “A” quality mortgage loans pursuant
to mortgage industry standards. The Mortgage Notes and Mortgages are
on forms acceptable to FNMA or FHLMC. The Seller is currently selling loans
to
FNMA and/or FHLMC which are the same document forms as the Mortgage Notes and
Mortgages (inclusive of any riders); the Mortgage Interest Rate is as set forth
in the related Mortgage Loan Schedule (including in the case of adjustable
rate
Mortgage Loans, the interest rate and payment limitations set forth in the
related Mortgage Loan Schedule or the UBS Website, as applicable, and Monthly
Payments under the Mortgage Note are due and payable on the first day of each
month. The Mortgage contains the usual and enforceable provisions of the
originator at the time of origination for the acceleration of the payment of
the
unpaid principal amount of the Mortgage Loan if the related Mortgaged Property
is sold without the prior consent of the mortgagee thereunder. The Seller used
no selection procedures that identified the Mortgage Loans as being less
desirable or valuable than other comparable mortgage loans in the Seller’s
portfolio at the related Cut-off Date;
(r) The
Mortgaged Property is not subject to any material damage by waste, fire,
earthquake, windstorm, flood or other casualty and is in good repair. At
origination of the Mortgage Loan there was, and there currently is, no
proceeding pending for the total or partial condemnation of the Mortgaged
Property. There have not been any condemnation proceedings with respect to
the
Mortgaged Property and, to the best of Seller’s knowledge, there are no such
proceedings scheduled to commence at a future date;
28
(s) The
related Mortgage contains customary and enforceable provisions such as to render
the rights and remedies of the holder thereof adequate for the realization
against the Mortgaged Property of the benefits of the security provided thereby,
including, (1) in the case of a Mortgage designated as a deed of trust, by
trustee’s sale, and (2) otherwise by judicial foreclosure. Upon default by a
Mortgagor on a Mortgage Loan and foreclosure on, or trustee’s sale of, the
Mortgaged Property pursuant to the proper procedures, the holder of the Mortgage
Loan will be able to deliver good and merchantable title to the Mortgaged
Property. There is no homestead or other exemption available to the Mortgagor
which would interfere with the right to sell the Mortgaged Property at a
trustee’s sale or the right to foreclose the Mortgage;
(t) If
the
Mortgage constitutes a deed of trust, a trustee, authorized and duly qualified
if required under applicable law to act as such, has been properly designated
and currently so serves and is named in the Mortgage, and no fees or expenses
are or will become payable by the Purchaser to the trustee under the deed of
trust, except in connection with a trustee’s sale or attempted sale after
default by the Mortgagor;
(u) The
Mortgage File contains an appraisal of the related Mortgaged Property, signed
prior to the final approval of the mortgage loan application by a Qualified
Appraiser, approved by the Seller, who had no interest, direct or indirect,
in
the Mortgaged Property, or in any loan made on the security thereof, and whose
compensation is not affected by the approval or disapproval of the Mortgage
Loan, and the appraisal and appraiser both satisfy the requirements of FNMA
or
FHLMC and Title XI of FIRREA and the regulations promulgated thereunder, all
as
in effect on the date the Mortgage Loan was originated. The appraisal is in
a
form acceptable to FNMA or FHLMC and was made by a Qualified
Appraiser;
(v) All
parties which have had any interest in the Mortgage, whether as mortgagee,
assignee, pledgee or otherwise, are (or, during the period in which they held
and disposed of such interest, were) (A) in compliance with any and all
applicable licensing requirements of the laws of the state wherein the Mortgaged
Property is located, and (B) (1) organized under the laws of such state, or
(2)
qualified to do business in such state, or (3) federal savings and loan
associations or national banks or a Federal Home Loan Bank or savings bank
having principal offices in such state, or (4) not doing business in such
state;
(w) The
related Mortgage Note is not and has not been secured by any collateral except
the lien of the corresponding Mortgage and the security interest of any
applicable security agreement or chattel mortgage referred to above and such
collateral does not serve as security for any other obligation;
(x) The
Mortgagor has received all disclosure materials required by applicable law
with
respect to the making of the Mortgage Loan and has
executed a statement acknowledging such receipt. The Seller shall
maintain such statement in the Mortgage File;
29
(y) The
Mortgage Loan does not contain “graduated payment”, “contingent interest”,
“shared appreciation” or “buydown” features;
(z) The
Mortgagor is not in bankruptcy and, to the best of the Seller’s knowledge, the
Mortgagor is not insolvent; there exist no circumstances or conditions with
respect to the Mortgage, the Mortgaged Property, the Mortgagor, the Mortgagor’s
credit standing or otherwise that could reasonably be expected to cause
investors to regard the Mortgage Loan as an unacceptable investment, cause
the
Mortgage Loan to become delinquent, or materially adversely affect the value
or
marketability of the Mortgage Loan;
(aa) The
Mortgage Loans are either fixed or adjustable rate mortgage loans. The Mortgage
Loans have an original term to maturity of not more than thirty (30) years,
with
interest payable in arrears on the first day of each month. Each Mortgage Note
is payable in equal monthly installments of principal and interest, which
installments of interest, with respect to adjustable rate Mortgage Loans, are
subject to change due to the adjustments to the Mortgage Interest Rate on each
Interest Rate Adjustment Date, with interest calculated and payable in arrears,
sufficient to amortize the Mortgage Loan fully by the stated maturity date,
over
an original term of not more than thirty years from commencement of
amortization. The Mortgage Interest Rate is adjusted, with respect to adjustable
rate Mortgage Loans, on each Interest Rate Adjustment Date to equal the Index
plus the Gross Margin (rounded up or down to the nearest .125%), subject to
the
Mortgage Interest Rate Cap, the Initial Mortgage Interest Rate Cap, the Maximum
Mortgage Interest Rate and the Minimum Mortgage Interest Rate. The weighted
average Mortgage Interest Rate is as set forth on the description of pool
characteristics for the Mortgage Loans in the Purchase Price and Terms Letter
and as set forth in the related Mortgage Loan Schedule, or on the UBS Website,
as applicable. No Mortgage Loan contains terms or provisions which would result
in negative amortization;
(bb) Each
Mortgage Note, each Mortgage, each Assignment of Mortgage and any other
documents required pursuant to this Agreement to be delivered to the Purchaser
or its designee, or its assignee for each Mortgage Loan, have been, on or before
the applicable Closing Date, delivered to the Purchaser or its designee, or
its
assignee;
(cc) The
origination, collection and servicing practices used by the Seller (and any
prior originator or servicer), with respect to each Mortgage Note and Mortgage
have been legal and in accordance with applicable laws and regulations and
Accepted Servicing Practices. With respect to escrow deposits and payments
that
the Seller is entitled to collect, all such payments are in the possession
of,
or under the control of, the Seller, and there exist no deficiencies in
connection therewith for which customary arrangements for repayment thereof
have
not been made. All escrow payments have been collected in full compliance with
state and federal law and the provisions of the related Mortgage Note and
Mortgage. As to any Mortgage Loan that is the subject of an escrow, escrow
of
funds is not prohibited by applicable law and has been established in an amount
sufficient to pay for every escrowed item that remains unpaid and has been
assessed but is not yet due and payable. No escrow deposits or other charges
or
payments due under the Mortgage Note have been capitalized under any Mortgage
or
the related Mortgage Note. All Mortgage Interest Rate adjustments have been
made
in strict compliance with state and federal law and the terms of the related
Mortgage Note. Any interest required to be paid pursuant to state, federal
and
local law has been properly paid and credited;
30
(dd) None
of
the Mortgage Loans had a Loan-To-Value Ratio greater than 95%;
(ee) If
a
Mortgage Loan has an LTV greater than 80%, the excess of the principal balance
of the Mortgage Loan over 75% of the Appraised Value is and will be insured
as
to payment defaults by a Primary Mortgage Insurance Policy issued by a Qualified
Insurer. All provisions of such Primary Mortgage Insurance Policy have been
and
are being complied with, such policy is in full force and effect, and all
premiums due thereunder have been paid. No action, inaction, or event has
occurred and no state of facts exists that has, or will result in the exclusion
from, denial of, or defense to coverage under any Primary Mortgage Insurance
Policy (including, without limitation, any exclusions, denials or defenses
which
would limit or reduce the availability of the timely payment of the full amount
of the loss otherwise due thereunder to the insured) whether arising out of
actions, representations, errors, omissions, negligence, or fraud of the Seller,
or for any other reason under such coverage. Any Mortgage Loan subject to a
Primary Mortgage Insurance Policy (other than for a Mortgage Loan subject to
a
“lender-paid” Mortgage Insurance Policy) obligates the Mortgagor thereunder to
maintain the Primary Mortgage Insurance Policy and to pay all premiums and
charges in connection therewith. Other than for a Mortgage Loan subject to
a
“Lender-paid” Mortgage Insurance Policy), the Mortgage Interest Rate for the
Mortgage Loan as set forth on the related Mortgage Loan Schedule or the UBS
Website, as applicable, is net of any such Primary Mortgage Insurance premium.
The Mortgage Loan Remittance Rate as set forth on the related Mortgage Loan
Schedule or the UBS Website, as applicable, is net of any applicable LPMI
Rate;
(ff) The
Assignment is in recordable form and is acceptable for recording under the
laws
of the jurisdiction in which the Mortgaged Property is located;
(gg) Except
with respect to Mortgage Loans secured by an interest in a leasehold estate,
the
Mortgaged Property is located in the state identified in the related Mortgage
Loan Schedule or the UBS Website, as applicable, and consists of a single parcel
of real property with a detached single family residence erected thereon, or
a
townhouse, or a two to four family dwelling, or an individual condominium unit
in a condominium project, or an individual unit in a planned unit development
or
a de minimis planned unit development; provided, however, that any condominium
unit or planned unit development shall conform with requirements acceptable
to
FNMA or FHLMC, or the Underwriting Guidelines, regarding such dwellings, or
is
located in a condominium or planned unit development project which has received
project approval from FNMA or FHLMC. No residence or dwelling is a single parcel
of real property with a cooperative housing corporation, a mobile home or a
manufactured dwelling thereon. As of the date of origination, no portion of
the
Mortgaged Property was used for commercial purposes, and since the date of
origination, to the best of the Seller’s knowledge, no portion of the Mortgaged
Property is used for commercial purposes;
31
(hh) As
of the
date of origination of the Mortgage Loan, the Mortgaged Property was not
unlawfully occupied under applicable law, and all inspections, licenses and
certificates required to be made or issued with respect to all occupied portions
of the Mortgaged Property and, with respect to the use and occupancy of the
same, including but not limited to certificates of occupancy and fire
underwriting certificates, have been made or obtained from the appropriate
authorities;
(ii) There
is
no pending action or proceeding directly involving the Mortgaged Property in
which compliance with any environmental law, rule or regulation is an issue;
to
the best of Seller’s knowledge, there is no violation of any environmental law,
rule or regulation with respect to the Mortgaged Property; and nothing further
remains to be done to satisfy in full all requirements of each such law, rule
or
regulation constituting a prerequisite to use and enjoyment of said
property;
(jj) The
Mortgagor has not notified the Seller, and the Seller has no knowledge of any
relief requested or allowed to the Mortgagor under the Servicemembers’ Civil
Relief Act;
(kk) Except
as
otherwise permitted in the Underwriting Guidelines with respect to “One-Time
Close” products, no Mortgage Loan was made in connection with the construction
or rehabilitation of a Mortgaged Property or facilitating the trade-in or
exchange of a Mortgaged Property;
(ll) The
Mortgage Loan was originated by a mortgagee approved by the Secretary of Housing
and Urban Development pursuant to Sections 203 and 211 of the Act, a savings
and
loan association, a savings bank, a commercial bank, credit union, insurance
company or similar institution which is supervised and examined by a federal
or
state authority. The documents, instruments and agreements submitted for loan
underwriting were not falsified and contain no untrue statement of material
fact
or omit to state a material fact required to be stated therein or necessary
to
make the information and statements therein not misleading. Principal payments
on the Mortgage Loan commenced no more than sixty (60) days after funds were
disbursed in connection with the Mortgage Loan;
32
(mm) Except
as
otherwise disclosed on the Mortgage Loan Schedule or the UBS Website, as
applicable, none of the Mortgaged Properties is subject to a ground
lease. Any ground lease to which a Mortgaged Property may be subject
satisfies the requirements of the FNMA or FHLMC Guides;
(nn) The
Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G(a)(3)
of the Code (without regard to Treasury Regulations § 1.860G 2(f) or any similar
rule that provides that a defective obligation is a qualified mortgage for
a
temporary period);
(oo) With
respect to adjustable rate Mortgage Loans, the Mortgage Loan is not a
Convertible Mortgage Loan unless otherwise indicated on and in conformity with
the related Mortgage Loan Schedule or the UBS Website, as
applicable;
(pp) The
Mortgage Loan is in compliance with all requirements set forth in the related
Purchase Price and Terms Letter or the UBS Website, as applicable, and the
characteristics of the related Mortgage Loan Package as set forth in the related
Purchase Price and Terms Letter or the UBS Website, as applicable, are true
and
correct, provided, however, that in the event of any conflict between
the terms of any Purchase Price and Terms Letter or of the UBS Website and
this
Agreement, the terms of this Agreement shall control;
(qq) Any
principal advances made to the Mortgagor prior to the Cut-off Date have been
consolidated with the outstanding principal amount secured by the Mortgage,
and
the secured principal amount, as consolidated, bears a single interest rate
and
single repayment term. The lien of the Mortgage securing the consolidated
principal amount is expressly insured as having first lien priority by a title
insurance policy, an endorsement to the policy insuring the mortgagee’s
consolidated interest or by other title evidence acceptable to FNMA and FHLMC.
The consolidated principal amount does not exceed the original principal amount
of the Mortgage Loan;
(rr) No
Mortgage Loan has a balloon payment feature;
(ss) Interest
on each Mortgage Loan is calculated on the basis of a 360-day year consisting
of
twelve 30-day months;
(tt) No
Mortgage Loan is subject to the provisions of the Homeownership and Equity
Protection Act of 1994;
(uu) No
predatory or deceptive lending practices, including but not limited to, the
extension of credit to the Mortgagor without regard for the Mortgagor’s ability
to repay the Mortgage Loan and the extension of credit to the mortgagor which
has no apparent benefit to the Mortgagor, were employed by the originator of
the
Mortgage Loan in connection with the origination of the Mortgage
Loan;
33
(vv) No
proceeds from any Mortgage Loan were used to finance single-premium credit
insurance policies;
(ww) Except
as
set forth on the related Mortgage Loan Schedule or the UBS Website, as
applicable, none of the Mortgage Loans are subject to a prepayment
penalty. For any Mortgage Loan originated prior to October 1, 2002
that is subject to a prepayment penalty, such prepayment penalty does not extend
beyond five years after the date of origination. For any Mortgage
Loan originated on or following October 1, 2002 that is subject to a prepayment
penalty, such prepayment penalty does not extend beyond three years after the
date of origination. Any such prepayment penalty is enforceable and
was originated in compliance with all applicable federal, state, and local
laws.
With respect to any Mortgage Loan that contains a provision permitting
imposition of a premium upon a prepayment prior to maturity: (i) prior to the
loan’s origination, the Mortgagor agreed to such premium in exchange for a
monetary benefit, including but not limited to a rate or fee reduction, (ii)
prior to the loan’s origination, the Mortgagor was offered the option of
obtaining a Mortgage Loan that did not require payment of such a premium, (iii)
the prepayment premium is disclosed to the Mortgagor in the loan documents
pursuant to applicable state and federal law, and (iv) notwithstanding any
state
or federal law to the contrary, the Seller shall not impose such
prepayment premium in any instance when the mortgage debt is accelerated as
the
result of the Mortgagor’s default in making the loan payments;
(xx) No
Mortgage Loan is (a) subject to, covered by or in violation of the Home
Ownership and Equity Protection Act of 1994 (“HOEPA”), (b) classified as “high
cost,” “covered,” “high risk home”, “threshold,” or “predatory” loans under
HOEPA or any other applicable state, federal or local law, including any
predatory or abusive lending laws (or a similarly classified loan using
different terminology under a law imposing heightened scrutiny or additional
legal liability for residential mortgage loans having high interest rates,
points and/or fees), (c) a High Cost Loan or Covered Loan, as applicable (as
such terms are defined in the Standard and Poor’s LEVELS® Glossary Revised,
Appendix E) or (d) in violation of any state law or ordinance comparable to
HOEPA;
(yy) The
Seller has complied with all applicable anti-money laundering laws and
regulations, including without limitation the USA Patriot Act of 2001
(collectively, the “Anti-Money Laundering Laws”); the Seller has
established an anti-money laundering compliance program as required by the
Anti-Money Laundering Laws, has conducted the requisite due diligence in
connection with the origination of each Mortgage Loan for purposes of the
Anti-Money Laundering Laws, including with respect to the legitimacy of the
applicable Mortgagor and the origin of the assets used by the said Mortgagor
to
purchase the property in question, and maintains, and will maintain, sufficient
information to identify the applicable Mortgagor for purposes of the Anti-Money
Laundering Laws;
34
(zz) Each
Mortgage Loan is in compliance with the anti-predatory lending eligibility
for
purchase requirements of the Xxxxxx Xxx Guides;
(aaa) No
Mortgage Loan is a “High Cost Home Loan” as defined in the Georgia Fair Lending
Act, as amended (the “Georgia Act”) or the New York Banking Law
6-1. No Mortgage Loan secured by owner occupied real property or an
owner occupied manufactured home located in the State of Georgia was originated
(or modified) on or after October 1, 2002 through and including March 6,
2003;
(bbb) No
Mortgagor was encouraged or required to select a Mortgage Loan product offered
by the Mortgage Loan’s originator which is a higher cost product designed for
less creditworthy borrowers, unless at the time of the Mortgage Loan’s
origination, such Mortgagor did not qualify taking into account credit history
and debt to income ratios for a lower cost credit product then offered by the
Mortgage Loan’s originator or any affiliate of the Mortgage Loan’s
originator. If, at the time of loan application, the Mortgagor may
have qualified for a lower cost credit product then offered by any mortgage
lending affiliate of the Mortgage Loan’s originator, the Mortgage Loan’s
originator referred the Mortgagor’s application to such affiliate for
underwriting consideration;
(ccc) The
methodology used in underwriting the extension of credit for each Mortgage
Loan
employs objective mathematical principles which relate the Mortgagor’s income,
assets and liabilities to the proposed payment and such underwriting methodology
does not rely on the extent of the Mortgagor’s equity in the collateral as the
principal determining factor in approving such credit extension. Such
underwriting methodology confirmed that at the time of origination
(application/approval) the Mortgagor had a reasonable ability to make timely
payments on the Mortgage Loan;
(ddd) All
fees
and charges (including finance charges) and whether or not financed, assessed,
collected or to be collected in connection with the origination and servicing
of
each Mortgage Loan have been disclosed in writing to the Mortgagor in accordance
with applicable state and federal law and regulation;
(eee) No
Mortgagor was required to purchase any credit life, disability, accident or
health insurance product as a condition of obtaining the extension of
credit. No Mortgagor obtained a prepaid single premium credit life,
disability, accident or health insurance policy in connection with the
origination of the Mortgage Loan;
35
(fff) With
respect to each Mortgage Loan, the Seller has furnished complete information
on
the related borrower credit files to appropriate credit bureau(s) including
without limitation Equifax, Experian and Trans Union Credit Information Company,
in accordance with the Fair Credit Reporting Act and its implementing
regulations, on a monthly basis and the Seller for each Mortgage Loan will
furnish, in accordance with the Fair Credit Reporting Act and its implementing
regulations, accurate and complete information on its borrower credit files
to
appropriate credit bureau(s) including without limitation Equifax, Experian
and
Trans Union Credit Information Company, on a monthly basis;
(ggg) [reserved];
(hhh) All
points and fees related to each Mortgage Loan were disclosed in writing to
the
related Mortgagor in accordance with applicable state and federal law and
regulation;
(iii) The
Seller will transmit full-file credit reporting data for each Mortgage Loan
pursuant to Xxxxxx Mae Guide Announcement 95-19 and for each Mortgage Loan,
Seller agrees it shall report one of the following statuses each month as
follows: new origination, current, delinquent (30-, 60-, 90-days, etc.),
foreclosed, or charged-off;
(jjj) [reserved];
(kkk) [reserved];
(lll) [reserved];
(mmm) No
Mortgage Loan is a “High-Cost Home Loan” as defined in the New Jersey Home
Ownership Security Act of 2002 (the “NJ Act”); and each Mortgage Loan subject to
the NJ Act is considered under the NJ Act as, either, a (1) purchase money
Home
Loan, (2) purchase money Covered Loan (with respect to Mortgage Loans which
were
originated between November 26, 2003 and July 7, 2004, or (3) a rate/term
refinance Home Loan
(nnn) No
Borrower agreed to submit to arbitration to resolve any dispute arising out
of
or relating in any way to the Mortgage Loan transaction;
(ooo) The
Borrower has not made or caused to be made any payment in the nature of an
‘average’ or ‘yield spread premium’ to a mortgage broker or a like Person which
has not been fully disclosed to the Borrower; and
36
(ppp) No
Mortgage Loan secured by a Mortgaged Property located in the Commonwealth of
Massachusetts was made to pay off or refinance an existing loan or other debt
of
the related borrower (as the term “borrower” is defined in the regulations
promulgated by the Massachusetts Secretary of State in connection with
Massachusetts House Xxxx 4880 (2004)) unless (a) the related Interest Rate
(that
would be effective once the introductory rate expires, with respect to
adjustable rate Mortgage Loans) did or would not exceed by more than 2.25%
the
yield on United States Treasury securities having comparable periods of maturity
to the maturity of the related Mortgage Loan as of the fifteenth day of the
month immediately preceding the month in which the application for the extension
of credit was received by the related lender or (b) the Mortgage Loan is an
“open-ended home loan” (as such term is used in the Massachusetts House Xxxx
4880 (2004)) and the related Note provides that the related Interest Rate may
not exceed at any time the Prime rate index as published in the Wall Street
Journal plus a margin of one percent.
|
Section
3.03
|
Repurchase;
Substitution; Set-off.
|
It
is
understood and agreed that the representations, warranties and covenants set
forth in Sections 2.07, 3.01 and 3.02 shall survive the sale of the Mortgage
Loans and delivery of the Mortgage Loan Documents to the Purchaser, or its
designee, and shall inure to the benefit of the Purchaser, notwithstanding
any
restrictive or qualified endorsement on any Mortgage Note or Assignment or
the
examination, or lack of examination, of any Mortgage File. Upon discovery by
either the Seller or the Purchaser of a breach of any of the foregoing
representations and warranties which materially and adversely affects the value
of the Mortgage Loans or the interest of the Purchaser in any Mortgage Loan,
the
party discovering such breach shall give prompt written notice to the other.
The
Seller shall have a period of sixty (60) days from the earlier of its discovery
or its receipt of notice of any such breach within which to correct or cure
such
breach. The Seller hereby covenants and agrees that if any such breach is not
corrected or cured within such sixty (60) day period, the Seller shall, at
the
Purchaser’s option and not later than ninety (90) days of its discovery or its
receipt of notice of such breach, repurchase such Mortgage Loan at the
Repurchase Price or, with the Purchaser’s prior consent, substitute a Mortgage
Loan as provided below. In the event that any such breach shall involve any
representation or warranty set forth in Section 3.01, and such breach is not
cured within sixty (60) days of the earlier of either discovery by or notice
to
the Seller of such breach, all Mortgage Loans shall, at the option of the
Purchaser, be repurchased by the Seller at the Repurchase Price. Any such
repurchase 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 and being held in the Custodial
Account for future distribution. It is understood by the parties
hereto that a breach of the representations and warranties made in Subsections
3.02(xx), (ww), (xx), (aaa), (eee), (fff) and (nnn) will be deemed to materially
and adversely affect the value of the related Mortgage Loan or the interest
of
the Purchaser therein.
37
Any
substitute Mortgage Loan shall (a) have a principal balance at the time of
substitution not in excess of the principal balance of the removed Mortgage
Loan
(the amount of any difference, plus one month’s interest thereon at the Mortgage
Interest Rate borne by the removed Mortgage Loan, being paid by the Seller
and
deemed to be a Principal Prepayment to be deposited by the Seller in the
Custodial Account), (b) have a Mortgage Interest Rate not less than, and not
more than one percentage point greater than, the Mortgage Interest Rate of
the
removed Mortgage Loan, (c) have a remaining term to stated maturity not later
than, and not more than one year less than, the remaining term to stated
maturity of the removed Mortgage Loan, (d) be, in the reasonable determination
of the Purchaser, of the same type, quality and character (including location
of
the Mortgaged Property) as the removed Mortgage Loan as if the breach had not
occurred, (e) have a Loan-to-Value Ratio, at origination no greater than that
of
the removed Mortgage Loan and (f) be, in the reasonable determination of the
Purchaser, in material compliance with the representations and warranties
contained in this Agreement as of the date of substitution.
The
Seller shall amend the applicable Mortgage Loan Schedule or notify the Purchaser
to amend the UBS website, as applicable, to reflect the withdrawal of the
removed Mortgage Loan from this Agreement and the substitution of such
substitute Mortgage Loan therefor. Upon such amendment, the Purchaser shall
review the Mortgage File delivered to it relating to the substitute Mortgage
Loan. In the event of such a substitution, accrued interest on the substitute
Mortgage Loan for the month in which the substitution occurs and any Principal
Prepayments made thereon during such month shall be the property of the
Purchaser and accrued interest for such month on the Mortgage Loan for which
the
substitution is made and any Principal Prepayments made thereon during such
month shall be the property of the Seller. The principal payment on a substitute
Mortgage Loan due on the Due Date in the month of substitution shall be the
property of the Seller; and the principal payment on the Mortgage Loan for
which
the substitution is made due on such date shall be the property of the
Purchaser.
Without
in any way limiting the foregoing, Purchaser may, at its option and in its
sole
discretion, offset any or all amounts owed by the Seller to Purchaser under
this
Agreement and any Purchase Price and Terms Letter, or the UBS Website, as
applicable, against any or all amounts due from Purchaser to the
Seller.
It
is
understood and agreed that the obligations of the Seller set forth in this
Section 3.03 to cure, repurchase, reimburse or substitute for a defective
Mortgage Loan, and to indemnify Purchaser pursuant to Section 8.01, and
Purchaser’s right of set-off, constitute the sole remedies of the Purchaser
respecting a breach of the foregoing representations and warranties. If the
Seller fails to repurchase, reimburse or substitute for a defective Mortgage
Loan in accordance with this Section 3.03, or fails to cure a defective Mortgage
Loan to Purchaser’s reasonable satisfaction in accordance with this Section
3.03, or to indemnify Purchaser pursuant to Section 8.01, that failure shall
be
an Event of Default and the Purchaser shall be entitled to pursue all remedies
available as a result thereof. No provision of this paragraph shall affect
the
rights of the Purchaser to terminate this Agreement for cause, as set forth
in
Sections 10.01 and 11.01.
38
|
Section
3.04
|
Repurchase
of Convertible Mortgage Loans.
|
In
the
event the Mortgagor under any Convertible Mortgage Loan elects to convert said
Mortgage Note to a fixed interest rate Mortgage Note, as provided in said
Mortgage Note, then at Purchaser’s option the Seller shall, prior to the
effective date of said conversion, repurchase such Convertible Mortgage Loan
from the Purchaser in accordance with Section 3.03 hereof.
|
Section
3.05
|
Repurchase
of Mortgage Loans With Early Payment
Defaults.
|
If
a
Mortgage Loan is thirty (30) days or more delinquent with respect to the
Mortgage Loan’s Monthly Payment before the expiration of the three (3) month
period immediately following the applicable Closing Date, the Seller, at the
Purchaser’s option, shall upon notice from the Purchaser repurchase such
Mortgage Loan from the Purchaser at the Repurchase Price.
|
Section
3.06
|
Purchase
Price Protection.
|
With
respect to any Mortgage Loan that prepays in full during the three (3) month
period from and after the related Closing Date, the Seller shall reimburse
the
Purchaser the amount (if any) of the Purchase Price Premium paid by the
Purchaser to the Seller, multiplied by the UPB of such Mortgage Loan on the
applicable Closing Date, within thirty (30) days of such payoff.
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 in accordance with this Agreement and with Accepted Servicing
Practices, and shall have full power and authority, acting alone, to do or
cause
to be done any and all things in connection with such servicing and
administration which the Seller may deem necessary or desirable and consistent
with the terms of this Agreement and with Accepted Servicing Practices and
exercise the same care that it customarily employs for its own account. Except
as set forth in this Agreement, the Seller shall service the Mortgage Loans
in
strict compliance with the servicing provisions of the FNMA or FHLMC Guides
(special servicing option), which include, but are not limited to, provisions
regarding the liquidation of Mortgage Loans; the collection of Mortgage Loan
payments, the payment of taxes, insurance and other charges, the maintenance
of
hazard insurance with a Qualified Insurer, the maintenance of mortgage
impairment insurance, the maintenance of fidelity bond and errors and omissions
insurance, inspections, the restoration of Mortgaged Property, the maintenance
of Primary Mortgage Insurance Policies, insurance claims, the title, management
and liquidation of REO Property, permitted withdrawals with respect to REO
Property, liquidation reports, and reports of foreclosures and abandonments
of
Mortgaged Property, the transfer of Mortgaged Property, the release
of Mortgage Files, annual statements, and examination of records and
facilities. In the event of any conflict, inconsistency or discrepancy between
any of the servicing provisions of this Agreement and any of the servicing
provisions of the FNMA or FHLMC Guides, the provisions of this Agreement shall
control and be binding upon the Purchaser and the Seller.
39
Consistent
with the terms of this Agreement, the Seller may waive, modify or vary any
term
of any Mortgage Loan or consent to the postponement of any such term or in
any
manner grant indulgence to any Mortgagor if in the Seller’s reasonable and
prudent determination such waiver, modification, postponement or indulgence
is
not materially adverse to the Purchaser, provided, however, that unless the
Seller has obtained the prior written consent of the Purchaser, the Seller
shall
not permit any modification with respect to any Mortgage Loan that would change
the Mortgage Interest Rate, defer or forgive the payment of principal or
interest, reduce or increase the outstanding principal balance (except for
actual payments of principal); change the final maturity date on such Mortgage
Loan or, for adjustable rate Mortgage Loans, change any of the applicable
adjustable rate terms (e.g., Index, Initial Mortgage Interest Rate Cap, Gross
Margin, etc.). In the event of any such modification which has been agreed
to in
writing by the Purchaser and which permits the deferral of interest or principal
payments on any Mortgage Loan, the Seller shall, on the Business Day immediately
preceding the Remittance Date in any month in which any such principal or
interest payment has been deferred, deposit in the Custodial Account from its
own funds, in accordance with Section 4.04, the difference between (a) such
month’s principal and one month’s interest at the Mortgage Loan Remittance Rate
on the unpaid principal balance of such Mortgage Loan and (b) the amount paid
by
the Mortgagor. The Seller shall be entitled to reimbursement for such advances
to the same extent as for all other advances pursuant to Section 4.05. Without
limiting the generality of the foregoing, the Seller shall continue, and is
hereby authorized and empowered, to prepare, execute and deliver, all
instruments of satisfaction or cancellation, or of partial or full release,
discharge and all other comparable instruments, with respect to the Mortgage
Loans and with respect to the Mortgaged Properties. Notwithstanding anything
herein to the contrary, the Seller may not enter into a forbearance agreement
or
similar arrangement with respect to any Mortgage Loan which runs more than
180
days after the first delinquent Due Date. Any such agreement shall be approved
by any applicable issuer of a Primary Mortgage Insurance Policy, if
required.
In
servicing and administering the Mortgage Loans, the Seller shall employ Accepted
Servicing Practices, giving due consideration to the Purchaser’s reliance on the
Seller. The seller shall accurately and fully report its Mortgagor credit files
to all three credit repositories in a timely manner.
40
The
Mortgage Loans may be subserviced by a Subservicer on behalf of the Seller
provided that the Subservicer is an entity that engages in the business of
originating, acquiring or servicing mortgage loans, and in either case shall
be
authorized to transact business, and licensed to service mortgage loans, in
the
state or states where the related Mortgaged Properties it is to service are
situated, if and to the extent required by applicable law to enable the
Subservicer to perform its obligations hereunder and under the Subservicing
Agreement, and in either case shall be a FHLMC or FNMA approved mortgage
servicer in good standing, and no event has occurred, including but not limited
to a change in insurance coverage, which would make it unable to comply with
the
eligibility requirements for lenders imposed by FNMA or for seller/servicers
imposed by FHLMC, or which would require notification to FNMA or FHLMC. In
addition, each Subservicer will obtain and preserve its qualifications to do
business as a foreign corporation and its licenses to service mortgage loans,
in
each jurisdiction in which such qualifications and/or licenses are or shall
be
necessary to protect the validity and enforceability of this Agreement, or
any
of the Mortgage Loans and to perform or cause to be performed its duties under
the related Subservicing Agreement. The Seller may perform any of its servicing
responsibilities hereunder or may cause the Subservicer to perform any such
servicing responsibilities on its behalf, but the use by the Seller of the
Subservicer shall not release the Seller from any of its obligations hereunder
and the Seller shall remain responsible hereunder for all acts and omissions
of
the Subservicer as fully as if such acts and omissions were those of the Seller.
The Seller shall pay all fees and expenses of the Subservicer from its own
funds, and the Subservicer’s fee shall not exceed the Servicing Fee. The Seller
shall notify Purchaser promptly in writing upon the appointment of any
Subservicer.
At
the
cost and expense of the Seller, without any right of reimbursement from the
Custodial Account, the Seller shall be entitled to terminate the rights and
responsibilities of the Subservicer and arrange for any servicing
responsibilities to be performed by a successor subservicer meeting the
requirements in the preceding paragraph, provided, however, that nothing
contained herein shall be deemed to prevent or prohibit the Seller, at the
Seller’s option, from electing to service the related Mortgage Loans itself. In
the event that the Seller’s responsibilities and duties under this Agreement are
terminated pursuant to Section 4.13, 8.04, 9.01, 10.01 or 10.02 and if requested
to do so by the Purchaser, the Seller shall at its own cost and expense
terminate the rights and responsibilities of the Subservicer effective as of
the
date of termination of the Seller. The Seller shall pay all fees, expenses
or
penalties necessary in order to terminate the rights and responsibilities of
the
Subservicer from the Seller’s own funds without reimbursement from the
Purchaser.
Notwithstanding
any of the provisions of this Agreement relating to agreements or arrangements
between the Seller and the Subservicer or any reference herein to actions taken
through the Subservicer or otherwise, the Seller shall not be relieved of its
obligations to the Purchaser and shall be obligated to the same extent and
under
the same terms and conditions as if it alone were servicing and administering
the Mortgage Loans. The Seller shall be entitled to enter into an agreement
with
the Subservicer for indemnification of the Seller by the Subservicer and nothing
contained in this Agreement shall be deemed to limit or modify such
indemnification. The Seller will indemnify and hold Purchaser and its affiliates
harmless from any loss, liability or expense arising out of the Seller’s use of
a Subservicer to perform any of the Seller’s servicing duties, responsibilities
and obligations hereunder.
41
Any
Subservicing Agreement and any other transactions or services relating to the
Mortgage Loans involving the Subservicer shall be deemed to be between the
Subservicer and Seller alone, and the Purchaser shall have no obligations,
duties or liabilities with respect to the Subservicer including no obligation,
duty or liability of Purchaser to pay the Subservicer’s fees and expenses. For
purposes of distributions and advances by the Seller pursuant to this Agreement,
the Seller shall be deemed to have received a payment on a Mortgage Loan when
the Subservicer has received such payment.
|
Section
4.02
|
Collection
of Mortgage Loan Payments.
|
Continuously
from the date hereof until the date each Mortgage Loan ceases to be subject
to
this Agreement, the Seller will proceed diligently to collect all payments
due
under each Mortgage Loan when the same shall become due and payable and shall,
to the extent such procedures shall be consistent with this Agreement, Accepted
Servicing Practices, and the terms and provisions of any related Primary
Mortgage Insurance Policy, follow such collection procedures as it follows
with
respect to mortgage loans comparable to the Mortgage Loans and held for its
own
account. Further, the Seller will take special care in ascertaining and
estimating annual escrow payments, and all other charges that, as provided
in
the Mortgage, will become due and payable, so that the installments payable
by
the Mortgagors will be sufficient to pay such charges as and when they become
due and payable.
|
Section
4.03
|
Realization
Upon Defaulted Mortgage Loans.
|
The
Seller shall use its best efforts, consistent with the procedures that the
Seller would use in servicing loans for its own account, consistent with
Accepted Servicing Practices, any Primary Mortgage Insurance Policy and the
best
interest of Purchaser, to foreclose upon or otherwise comparably convert the
ownership of properties securing such of the Mortgage Loans as come into and
continue in default and as to which no satisfactory arrangements can be made
for
collection of delinquent payments pursuant to Section 4.01. Foreclosure or
comparable proceedings shall be initiated within one hundred twenty (120) days
of default for Mortgaged Properties for which no satisfactory arrangements
can
be made for collection of delinquent payments. The Seller shall use its best
efforts to realize upon defaulted Mortgage Loans in such manner as will maximize
the receipt of principal and interest by the Purchaser, taking into account,
among other things, the timing of foreclosure proceedings. The foregoing is
subject to the provisions that, in any case in which a Mortgaged Property shall
have suffered damage, the Seller shall not be required to expend its own funds
toward the restoration of such property unless it shall determine in its
discretion (i) that such restoration will increase the proceeds of liquidation
of the related Mortgage Loan to the Purchaser after reimbursement to itself
for
such expenses, and (ii) that such expenses will be recoverable by the Seller
through Insurance Proceeds or Liquidation Proceeds from the related Mortgaged
Property, as contemplated in Section 4.05. The Seller shall obtain the prior
approval of the Purchaser as to restoration expenses in excess of ten thousand
dollars ($10,000). The Seller shall notify the Purchaser in writing of the
commencement of foreclosure proceedings and prior to the acceptance or rejection
of any offer of reinstatement. The Seller shall be responsible for all costs
and
expenses incurred by it in any such proceedings or functions; provided, however,
that it shall be entitled to reimbursement thereof from the related property,
as
contemplated in Section 4.05. Notwithstanding anything to the contrary contained
herein, in connection with a foreclosure or acceptance of a deed in lieu of
foreclosure, in the event the Seller has reasonable cause to believe that a
Mortgaged Property is contaminated by hazardous or toxic substances or wastes,
or if the Purchaser otherwise requests an environmental inspection or review
of
such Mortgaged Property, such an inspection or review is to be conducted by
a
qualified inspector at the Purchaser’s expense. Upon completion of the
inspection, the Seller shall promptly provide the Purchaser with a written
report of the environmental inspection. After reviewing the environmental
inspection report, the Purchaser shall determine how the Seller shall proceed
with respect to the Mortgaged Property.
42
In
the
event that a Mortgage Loan becomes part of a REMIC, and becomes REO Property,
such property shall be disposed of by the Seller, with the consent of Purchaser
as required pursuant to this Agreement, within three (3) years after becoming
an
REO Property, unless the Seller provides to the trustee under such REMIC an
opinion of counsel to the effect that the holding of such REO Property
subsequent to three (3) years after its becoming REO Property, will not result
in the imposition of taxes on “prohibited transactions” as defined in Section
860F of the Code, or cause the transaction to fail to qualify as a REMIC at
any
time that certificates are outstanding. Seller shall manage, conserve, protect
and operate each such REO Property for the certificateholders solely for the
purpose of its prompt disposition and sale in a manner which does not cause
such
property to fail to qualify as “foreclosure property” within the meaning of
Section 860F(a)(2)(E) of the Code, or any “net income from foreclosure property”
which is subject to taxation under the REMIC provisions of the Code. Pursuant
to
its efforts to sell such property, the Seller shall either itself or through
an
agent selected by the Seller, protect and conserve such property in the same
manner and to such an extent as is customary in the locality where such property
is located. Additionally, the Seller shall perform the tax withholding and
reporting related to Sections 1445 and 6050J of the Code, if required by the
REMIC.
43
|
Section
4.04
|
Establishment
of Custodial Accounts; Deposits in Custodial
Accounts.
|
The
Seller shall segregate and hold all funds collected and received pursuant to
each Mortgage Loan separate and apart from any of its own funds and general
assets and shall establish and maintain one or more Custodial Accounts. The
Custodial Account shall be an Eligible Account. Funds deposited in the Custodial
Account may be drawn on by the Seller in accordance with Section 4.05. The
creation of any Custodial Account shall be evidenced by a letter agreement
in
the form shown in Exhibit C hereto. The original of such letter agreement shall
be furnished to the Purchaser on the initial Closing Date, and upon the request
of any subsequent Purchaser.
The
Seller shall deposit in the Custodial Account on a daily basis, and retain
therein the following payments and collections received or made by it subsequent
to each Cut-off Date, or received by it prior to such Cut-off Date but allocable
to a period subsequent thereto, other than in respect of principal and interest
on the Mortgage Loans due on or before such Cut-off Date:
(i) all
payments on account of principal, including Principal Prepayments, on the
Mortgage Loans;
(ii) all
payments on account of interest on the Mortgage Loans adjusted to the Mortgage
Loan Remittance Rate;
(iii) all
Liquidation Proceeds;
(iv) any
amounts required to be deposited by the Seller in connection with any REO
Property pursuant to Section 4.13 (including REO Disposition
Proceeds);
(v) all
Insurance Proceeds including amounts required to be deposited pursuant to
Sections 4.08, 4.10 and 4.11, other than proceeds to be held in the Escrow
Account and applied to the restoration or repair of the Mortgaged Property
or
released to the Mortgagor in accordance with Accepted Servicing Practices,
the
loan documents or applicable law;
(vi) all
Condemnation Proceeds affecting any Mortgaged Property which are not released
to
the Mortgagor in accordance with Accepted Servicing Practices the loan documents
or applicable law;
(vii) any
Monthly Advances;
(viii) all
proceeds of any Mortgage Loan repurchased or otherwise collected in accordance
with Article III and Section 2.07;
(ix) any
amounts required to be deposited by the Seller pursuant to Section 4.10 in
connection with the deductible clause in any blanket hazard insurance policy,
such deposit shall be made from the Seller’s own funds, without reimbursement
therefor;
44
(x) any
amounts required to be deposited in the Custodial Account pursuant to Section
4.01, 4.13 or 6.02:
(xi) with
respect to each Principal Prepayment, an amount (to be paid by the Seller out
of
its own funds without reimbursement therefor) which, when added to all amount
allocable to interest received in connection with such Principle Prepayment,
equals one month’s interest on the amount of the principal so prepaid at the
Mortgage Loan Remittance Rate provided, however, that in no event shall the
aggregate of deposits made by the Seller pursuant to this clause (xi) exceed
the
aggregate amount of the Servicing Fee in the calendar month in which such
deposits are required.
The
foregoing requirements for deposit in the Custodial Account shall be exclusive,
it being understood and agreed that, without limiting the generality of the
foregoing, payments in the nature of late payment charges and assumption fees,
to the extent permitted by Section 6.01, need not be deposited by the Seller
in
the Custodial Account. Any interest paid on funds deposited in the Custodial
Account by the depository institution shall accrue to the benefit of the Seller
and the Seller shall be entitled to retain and withdraw such interest from
the
Custodial Account pursuant to Section 4.05 (iv).
|
Section
4.05
|
Permitted
Withdrawals From the Custodial
Account.
|
The
Seller may, from time to time, withdraw from the Custodial Account for the
following purposes:
(i) to
make
payments to the Purchaser in the amounts and in the manner provided for in
Section 5.01;
(ii) to
reimburse itself for Monthly Advances, the Seller’s right to reimburse itself
pursuant to this subclause (ii) being limited to amounts received on the related
Mortgage Loan which represent late collections (net of the related Servicing
Fees) of principal and/or interest respecting which any such advance was made,
it being understood that, in the case of such reimbursement, the Seller’s right
thereto shall be prior to the rights of the Purchaser, except that, where the
Seller is required to repurchase a Mortgage Loan, pursuant to Section 3.03
or
Section 2.07, the Seller’s right to such reimbursement shall be subsequent to
the payment to the Purchaser of the Repurchase Price pursuant to such Section
and all other amounts required to be paid to the Purchaser with respect to
such
Mortgage Loan;
(iii) to
reimburse itself for unreimbursed Servicing Advances and any unpaid Servicing
Fees, the Seller’s right to reimburse itself pursuant to this subclause (iii)
with respect to any Mortgage Loan being limited to related proceeds from
Liquidation Proceeds, Condemnation Proceeds and Insurance Proceeds in accordance
with the relevant provisions of the FNMA or FHLMC Guides or as otherwise set
forth in this Agreement or the Underwriting Guidelines;
45
(iv) to
pay to
itself as servicing compensation (a) any interest earned on funds in the
Custodial Account (all such interest to be withdrawn monthly not later than
each
Remittance Date), and (b) if previously deposited, the Servicing Fee from that
portion of any payment or recovery as to interest with respect to a particular
Mortgage Loan;
(v) to
pay to
itself with respect to each Mortgage Loan that has been repurchased pursuant
to
Section 3.03 all amounts received thereon and not distributed as of the date
on
which the related Repurchase Price is determined;
(vi) to
transfer funds to another Eligible Account in accordance with Section 4.09
hereof;
(vii) to
remove
funds inadvertently placed in the Custodial Account by the Seller;
and
(viii) to
clear
and terminate the Custodial Account upon the termination of this
Agreement.
The
Seller shall keep and maintain separate accounting, on a Mortgage Loan by
Mortgage Loan basis, for the purpose of justifying any withdrawal from the
Custodial Account pursuant to such subclauses (ii) - (v) above.
|
Section
4.06
|
Establishment
of Escrow Accounts; Deposits in Escrow
Accounts.
|
The
Seller shall segregate and hold all funds collected and received pursuant to
each Mortgage Loan which constitute Escrow Payments separate and apart from
any
of its own funds and general assets and shall establish and maintain one or
more
Escrow Accounts. The Escrow Account shall be an Eligible Account. Funds
deposited in the Escrow Account may be drawn on by the Seller in accordance
with
Section 4.07. The creation of any Escrow Account shall be evidenced by a letter
agreement in the form shown in Exhibit C hereto. The original of such letter
agreement shall be furnished to the Purchaser on the initial Closing Date,
and
upon request to any subsequent purchaser.
The
Seller shall deposit in the Escrow Account or Accounts on a daily basis, and
retain therein:
46
(i) all
Escrow Payments collected on account of the Mortgage Loans, for the purpose
of
effecting timely payment of any such items as required under the terms of this
Agreement;(ii) all Insurance Proceeds which are to be applied to the
restoration or repair of any Mortgaged Property; and
(ii) all
Servicing Advances for Mortgagors whose Escrow Payments are insufficient to
cover escrow disbursements.
The
Seller shall make withdrawals from the Escrow Account only to effect such
payments as are required under this Agreement, and for such other purposes
as
shall be as set forth or in accordance with Section 4.07. The Seller shall
be
entitled to retain any interest paid on funds deposited in the Escrow Account
by
the depository institution other than interest on escrowed funds required by
law
to be paid to the Mortgagor and, to the extent required by law, the Seller
shall
pay interest on escrowed funds to the Mortgagor notwithstanding that the Escrow
Account is non-interest bearing or that interest paid thereon is insufficient
for such purposes.
|
Section
4.07
|
Permitted
Withdrawals From Escrow
Account.
|
Withdrawals
from the Escrow Account may be made by the Seller only:
|
(i)
|
to
effect timely payments of ground rents, taxes, assessments, water
rates,
Primary Mortgage Insurance Policy premiums, if applicable, fire and
hazard
insurance premiums or condominium assessments and comparable
items;
|
|
(ii)
|
to
reimburse Seller for any Servicing Advance made by Seller with respect
to
a related Mortgage Loan but only from amounts received on the related
Mortgage Loan which represent late payments or collections of Escrow
Payments thereunder;
|
|
(iii)
|
to
refund to the Mortgagor any funds as may be determined to be
overages;
|
|
(iv)
|
for
transfer to the Custodial Account in accordance with the terms of
this
Agreement;
|
|
(v)
|
for
application to restoration or repair of the Mortgaged
Property;
|
|
(vi)
|
to
pay to the Seller, or to the Mortgagor to the extent required by
law, any
interest paid on the funds deposited in the Escrow
Account;
|
47
|
(vii)
|
to
clear and terminate the Escrow Account upon the termination of this
Agreement. As part of its servicing duties, the Seller shall pay
to the
Mortgagors interest on funds in the Escrow Account, to the extent
required
by law, and to the extent that interest earned on funds in the Escrow
Account is insufficient, shall pay such interest from its own funds,
without any reimbursement therefor;
and
|
|
(viii)
|
to
pay to the Mortgagors or other parties Insurance Proceeds deposited
in
accordance with Section 4.06.
|
|
Section
4.08
|
Payment
of Taxes, Insurance and Other Charges; Maintenance of Primary Mortgage
Insurance Policies; Collections
Thereunder.
|
With
respect to each Mortgage Loan, the Seller shall maintain accurate records
reflecting the status of ground rents, taxes, assessments, water rates and
other
charges which are or may become a lien upon the Mortgaged Property and the
status of Primary Mortgage Insurance Policy premiums and fire and hazard
insurance coverage and shall obtain, from time to time, all bills for the
payment of such charges, including renewal premiums and shall effect payment
thereof prior to the applicable penalty or termination date and at a time
appropriate, for securing maximum discounts allowable, employing for such
purpose deposits of the Mortgagor in the Escrow Account which shall have been
estimated and accumulated by the Seller in amounts sufficient for such purposes,
as allowed under the terms of the Mortgage or applicable law. To the extent
that
the Mortgage does not provide for Escrow Payments, the Seller shall determine
that any such payments are made by the Mortgagor at the time they first become
due. The Seller assumes full responsibility for the timely payment of all such
bills and shall effect timely payments of all such bills irrespective of the
Mortgagor’s faithful performance in the payment of same or the making of the
Escrow Payments and shall make advances from its own funds to effect such
payments.
The
Seller will maintain in full force and effect Primary Mortgage Insurance
Policies issued by a Qualified Insurer with respect to each Mortgage Loan for
which such coverage is herein required. Such coverage will be maintained until
the loan-to-value ratio of the related Mortgage Loan is reduced to 80% or less
in the case of a Mortgage Loan having a Loan-to-Value Ratio at origination
in
excess of 80% or as required by state or federal law. The Seller will
not cancel or refuse to renew any Primary Mortgage Insurance Policy in effect
on
the applicable Closing Date that is required to be kept in force under this
Agreement unless a replacement Primary Mortgage Insurance Policy for such
canceled or nonrenewed policy is obtained from and maintained with a Qualified
Insurer. The Seller shall not take any action which would result in noncoverage
under any applicable Primary Mortgage Insurance Policy of any loss which, but
for the actions of the Seller would have been covered thereunder. In connection
with any assumption or substitution agreement entered into or to be entered
into
pursuant to Section 6.01, the Seller shall promptly notify the insurer under
the
related Primary Mortgage Insurance Policy, if any, of such assumption or
substitution of liability in accordance with the terms of such policy and shall
take all actions which may be required by such insurer as a condition to the
continuation of coverage under the Primary Mortgage Insurance Policy. If such
Primary Mortgage Insurance Policy is terminated as a result of such assumption
or substitution of liability, the Seller shall obtain a replacement Primary
Mortgage Insurance Policy as provided above.
48
In
connection with its activities as servicer, the Seller agrees to prepare and
present, on behalf of itself and the Purchaser, claims to the insurer under
any
Primary Mortgage Insurance Policy in a timely fashion in accordance with the
terms of such Primary Mortgage Insurance Policy and, in this regard, to take
such action as shall be necessary to permit recovery under any Primary Mortgage
Insurance Policy respecting a defaulted Mortgage Loan. Pursuant to Section
4.04,
any amounts collected by the Seller under any Primary Mortgage Insurance Policy
shall be deposited in the Custodial Account, subject to withdrawal pursuant
to
Section 4.05.
|
Section
4.09
|
Transfer
of Accounts.
|
The
Seller may transfer the Custodial Account or the Escrow Account to a different
Eligible Institution from time to time. Such transfer shall be made only upon
obtaining the prior written consent of the Purchaser, which consent will not
be
unreasonably withheld.
|
Section
4.10
|
Maintenance
of Hazard Insurance.
|
The
Seller shall cause to be maintained for each Mortgage Loan fire and hazard
insurance with extended coverage as is acceptable to FNMA and FHLMC and
customary in the area where the Mortgaged Property is located in an amount
which
is equal to the lesser of (i) the maximum insurable value of the improvements
securing such Mortgage Loan or (ii) the greater of (a) the outstanding principal
balance of the Mortgage Loan, and (b) an amount such that the proceeds thereof
shall be sufficient to prevent the Mortgagor and/or the Mortgagee from becoming
a co-insurer. If required by the Flood Disaster Protection Act of 1973, as
amended, each Mortgage Loan shall be covered by a flood insurance policy meeting
the requirements of the current guidelines of the Federal Insurance
Administration in effect with an insurance carrier acceptable to FNMA and/or
FHLMC, in an amount representing coverage not less than the least of (i) the
outstanding principal balance of the Mortgage Loan, (ii) the maximum insurable
value of the improvements securing such Mortgage Loan or (iii) the maximum
amount of insurance which is available under the Flood Disaster Protection
Act
of 1973, as amended. If at any time during the term of the Mortgage Loan, the
Seller determines in accordance with applicable law and pursuant to the FNMA
or
FHLMC Guides that a Mortgaged Property is located in a special flood hazard
area
and is not covered by flood insurance or is covered in an amount less than
the
amount required by the Flood Disaster Protection Act of 1973, as amended, the
Seller shall notify the related Mortgagor that the Mortgagor must obtain such
flood insurance coverage, and if said Mortgagor fails to obtain the required
flood insurance coverage within forty-five (45) days after such notification,
the Seller shall immediately force place the required flood insurance on the
Mortgagor’s behalf. The Seller shall also maintain on each REO Property, fire
and hazard insurance with extended coverage in an amount which is at least
equal
to the maximum insurable value of the improvements which are a part
of such property, and, to the extent required and available under the Flood
Disaster Protection Act of 1973, as amended, flood insurance in an amount as
provided above. Any amounts collected by the Seller under any such policies
other than amounts to be deposited in the Escrow Account and applied to the
restoration or repair of the Mortgaged Property or REO Property, or released
to
the Mortgagor in accordance with Accepted Servicing Practices, shall be
deposited in the Custodial Account, subject to withdrawal pursuant to Section
4.05. It is understood and agreed that no other additional insurance need be
required by the Seller or the Mortgagor or maintained on property
acquired in respect of the Mortgage Loan, other than pursuant to the
FNMA or FHLMC Guides or such applicable state or federal laws and regulations
as
shall at any time be in force and as shall require such additional insurance.
All such policies shall be endorsed with standard mortgagee clauses with loss
payable to the Seller and its successors and/or assigns and shall provide for
at
least thirty (30) days prior written notice of any cancellation, reduction
in
the amount or material change in coverage to the Seller. The Seller shall not
interfere with the Mortgagor’s freedom of choice in selecting either his
insurance carrier or agent, provided, however, that the Seller shall not accept
any such insurance policies from insurance companies unless such companies
are
Qualified Insurers and currently reflect a General Policy Rating of B:VI or
better in Best’s Key Rating Guide and are licensed to do business in the state
wherein the property subject to the policy is located.
49
|
Section
4.11
|
Maintenance
of Mortgage Impairment Insurance
Policy.
|
In
the
event that the Seller shall obtain and maintain a blanket policy issued by
an
issuer that has a Best rating of A+:XV insuring against hazard losses on all
of
the Mortgage Loans, then, to the extent such policy provides coverage in an
amount equal to the amount required pursuant to Section 4.10 and otherwise
complies with all other requirements of Section 4.10, it shall conclusively
be
deemed to have satisfied its obligations as set forth in Section 4.10, it being
understood and agreed that such policy may contain a deductible clause, in
which
case the Seller shall, in the event that there shall not have been maintained
on
the related Mortgaged Property or REO Property a policy complying with Section
4.10, and there shall have been a loss which would have been covered by such
policy, deposit in the Custodial Account from its own funds (without any right
of reimbursement therefor) the amount not otherwise payable under the blanket
policy because of such deductible clause. In connection with its activities
as
servicer of the Mortgage Loans, the Seller agrees to prepare and present, on
behalf of the Purchaser, claims under any such blanket policy in a timely
fashion in accordance with the terms of such policy. Upon request of the
Purchaser, the Seller shall cause to be delivered to the Purchaser a certified
true copy of such policy and shall use its best efforts to obtain a statement
from the insurer thereunder that such policy shall in no event be terminated
or
materially modified without thirty (30) days’ prior written notice to the
Purchaser.
50
|
Section
4.12
|
Fidelity
Bond, Errors and Omissions
Insurance.
|
The
Seller shall maintain, at its own expense, a blanket fidelity bond and an errors
and omissions insurance policy, with broad coverage with responsible companies
on all officers, employees or other persons acting in any capacity with regard
to the Mortgage Loans to handle funds, money, documents and papers relating
to
the Mortgage Loans. The Fidelity Bond shall be in the form of the Mortgage
Banker’s Blanket Bond and shall protect and insure the Seller against losses,
including forgery, theft, embezzlement and fraud of such persons. The errors
and
omissions insurance shall protect and insure the Seller against losses arising
out of errors and omissions and negligent acts of such persons. Such errors
and
omissions insurance shall also protect and insure the Seller against losses
in
connection with the failure to maintain any insurance policies required pursuant
to this Agreement and the release or satisfaction of a Mortgage Loan without
having obtained payment in full of the indebtedness secured thereby. No
provision of this Section 4.12 requiring the Fidelity Bond or errors and
omissions insurance shall diminish or relieve the Seller from its duties and
obligations as set forth in this Agreement. The minimum coverage under any
such
bond and insurance policy shall be at least equal to the corresponding amounts
required by FNMA in the FNMA Guides or by FHLMC in the FHLMC Guides. The Seller
shall deliver to the Purchaser a certificate from the surety and the insurer
as
to the existence of the Fidelity Bond and errors and omissions insurance policy
and shall obtain a statement from the surety and the insurer that such Fidelity
Bond or insurance policy shall in no event be terminated or materially modified
without thirty (30) days’ prior written notice to the Purchaser. The Seller
shall notify the Purchaser within five (5) business days of receipt of notice
that such Fidelity Bond or insurance policy will be, or has been, materially
modified or terminated. The Purchaser (or any party having the status of
Purchaser hereunder) and any subsidiary thereof and their successors or assigns
as their interests may appear must be named as loss payees on the Fidelity
Bond
and as additional insured on the errors and omissions policy. Within thirty
(30)
days of the initial Closing Date, Seller shall provide Purchaser with an
insurance certificate certifying coverage under this Section 4.12, and will
provide an update to such certificate upon request, or upon renewal or material
modification of coverage.
|
Section
4.13
|
Title,
Management and Disposition of REO
Property.
|
In
the
event that title to the Mortgaged Property is acquired in foreclosure or by
deed
in lieu of foreclosure, the deed or certificate of sale shall be taken in the
name of the Purchaser or its designee, or in the event the Purchaser or its
designee is not authorized or permitted to hold title to real property in the
state where the REO Property is located, or would be adversely affected under
the “doing business” or tax laws of such state by so holding title, the deed or
certificate of sale shall be taken in the name of such Person or Persons as
shall be consistent with an opinion of counsel obtained by the Seller from
an
attorney duly licensed to practice law in the state where the REO Property
is
located (the “Owners”). Any Person or Persons holding such title other than the
Purchaser shall acknowledge in writing that such title is being held as nominee
for the benefit of the Purchaser.
51
The
Seller shall notify the Purchaser in accordance with the FNMA or FHLMC Guides
of
each acquisition of REO Property upon such acquisition, together with a copy
of
the appraisal of the Mortgaged Property obtained in connection with such
acquisition, and thereafter assume the responsibility for marketing such REO
Property in accordance with Accepted Servicing Practices. Thereafter, the Seller
shall continue to provide certain administrative services to the Purchaser
relating to such REO Property as set forth in this Section 4.13. The fee for
such administrative services shall be $1,500 to be paid upon liquidation of
the
REO Property. No Servicing Fee shall be assessed on any REO Property
from and after the date of which it becomes an REO Property. The Seller shall
manage, conserve, protect and operate each REO Property for the Purchaser solely
for the purpose of its prompt disposition and sale. The Seller shall, either
itself or through an agent selected by the Seller, and in accordance with the
FNMA or FHLMC Guides manage, conserve, protect and operate each REO Property
in
the same manner that it manages, conserves, protects and operates other
foreclosed property for its own account, and in the same manner that similar
property in the same locality as the REO Property is managed. The Seller shall
cause each REO Property to be inspected promptly upon the acquisition of title
thereto and shall cause each REO Property to be inspected at least monthly
thereafter or more frequently as required by the circumstances. The Seller
shall
make or cause the Seller to be made a written report of each such inspection.
Such reports shall be retained in the Mortgage File and copies thereof shall
be
forwarded by the Seller to the Purchaser.
The
Seller shall use its best efforts to dispose of the REO Property as soon as
possible and shall sell such REO Property in any event within six (6) months
after title has been taken to such REO Property, unless the Seller determines,
and gives an appropriate notice to the Purchaser to such effect, that a longer
period is necessary for the orderly liquidation of such REO Property. If a
longer period than six (6) months is permitted under the foregoing sentence
and
is necessary to sell any REO Property, the Seller shall report monthly to the
Purchaser as to the progress being made in selling such REO Property. No REO
Property shall be marketed for less than the Appraised Value, without the prior
consent of Purchaser. No REO Property shall be sold for less than ninety five
percent (95%) of its Appraised Value, without the prior consent of Purchaser.
If
as of the date any REO Property is sold or otherwise disposed of there were
outstanding unreimbursed Servicing Advances with respect to the REO Property,
the Seller shall be entitled to reimbursement from the proceeds of such sale
for
any related unreimbursed Servicing Advances. All requests for reimbursement
of
Servicing Advances shall be in accordance with the FNMA or FHLMC Guides. The
disposition of REO Property 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 Purchaser. The Seller shall provide monthly reports to
Purchaser in reference to the status of the marketing of the REO
Properties.
52
Notwithstanding
anything to the contrary contained herein, the Purchaser may, at the Purchaser’s
sole option, terminate the Seller as servicer of any such REO Property without
payment of any termination fee with respect thereto, provided that the Seller
shall on the date said termination takes effect be reimbursed by withdrawal
from
the Custodial Account for any unreimbursed advances of the Seller’s funds made
pursuant to Section 5.03 and any unreimbursed Servicing Advances in each case
relating to the Mortgage Loan underlying such REO Property notwithstanding
anything to the contrary set forth in Section 4.05. In the event of any such
termination, the provisions of Section 11.01 hereof shall apply to said
termination and the transfer of servicing responsibilities with respect to
such
REO Property to the Purchaser or its designee.
If
a
REMIC election is or is to be made with respect to the arrangement under which
the Mortgage Loans and any REO Property are held, the Seller shall manage,
conserve, protect and operate each REO Property in a manner which does not
cause
such REO Property to fail to qualify as “foreclosure property” within the
meaning of Section 860G(a)(8) of the Code or result in the receipt by such
REMIC
of any “income from non-permitted assets” within the meaning of Section
860F(a)(2)(B) of the Code or any “net income from foreclosure property” within
the meaning of Section 860G(c)(2) of the Code. The Seller shall cause
each REO Property to be inspected promptly upon the acquisition of title thereto
and shall cause each REO Property to be inspected at least annually
thereafter. The Seller shall make or cause to be made a written
report of each such inspection. Such reports shall be retained in the
Mortgage File and copies thereof shall be forwarded by the Seller to the
Purchaser. The Seller shall use its best efforts to dispose of the
REO Property as soon as possible and shall sell such REO Property in any event
within one (1) year after title has been taken to such REO Property, unless
the
Seller determines, and gives appropriate notice to the Purchaser, that a longer
period is necessary for the orderly liquidation of such REO
Property. If a period longer than one year is necessary to sell any
REO property, (i) the Seller shall report monthly to the Purchaser as to the
progress being made in selling such REO Property and (ii) if, with the written
consent of the Purchaser, a purchase money mortgage is taken in connection
with
such sale, such purchase money mortgage shall name the Seller as mortgagee,
and
a separate servicing agreement between the Seller and the Purchaser shall be
entered into with respect to such purchase money
mortgage. Notwithstanding the foregoing, if a REMIC election is made
with respect to the arrangement under which the Mortgage Loans and the REO
Property are held, such REO Property shall be disposed of prior to the
expiration of the third taxable year in which such REO Property was acquired
or
such other period as may be permitted under Section 860G(a)(8) of the
Code.
|
Section
4.14
|
Notification
of Maturity Date.
|
With
respect to each Mortgage Loan, the Seller shall execute and deliver to the
Mortgagor any and all necessary notices required under applicable law and the
terms of the related Mortgage Note and Mortgage regarding the maturity date
if
required under applicable law.
53
|
Section
4.15
|
Notification
of Adjustments.
|
With
respect to each adjustable rate Mortgage Loan, the Seller shall adjust the
Mortgage Interest Rate on the related interest rate adjustment date and shall
adjust the Monthly Payment on the related mortgage payment adjustment date,
if
applicable, in compliance with Accepted Servicing Practices and the related
Mortgage and Mortgage Note. The Seller shall execute and deliver any and all
necessary notices required under applicable law and the terms of the related
Mortgage Note and Mortgage regarding the Mortgage Interest Rate and Monthly
Payment adjustments. The Seller shall promptly, upon written request therefor,
deliver to the Purchaser such notifications and any additional applicable data
regarding such adjustments and the methods used to calculate and implement
such
adjustments. Upon the discovery by the Seller or the receipt of notice from
the
Purchaser that the Seller has failed to adjust a Mortgage Interest Rate or
Monthly Payment in accordance with the terms of the related Mortgage Note,
the
Seller shall deposit in the Custodial Account from its own funds (without any
right of reimbursement therefor) the amount of any interest loss or deferral
caused the Purchaser thereby as such interest loss or deferral
occurs.
|
Section
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 “contributions” to a REMIC set forth in Section 860G(d) of
the Code) unless the Seller has received an Opinion of Counsel (at the expense
of the party seeking to take such action) to the effect that the contemplated
action will not endanger such REMIC status or result in the imposition of any
such tax.
ARTICLE
V
PAYMENTS
TO THE PURCHASER
|
Section
5.01
|
Distributions.
|
On
each
Remittance Date, the Seller shall distribute by wire transfer to the Purchaser
(i) all amounts credited to the Custodial Account as of the close of business
on
the preceding Determination Date, net of charges against or withdrawals from
the
Custodial Account pursuant to Section 4.05, plus (ii) all Monthly Advances,
if
any, which the Seller is obligated to distribute pursuant to Section 5.03,
minus
any amounts attributable to Principal Prepayment received during the month
of
such Remittance Date, which amounts shall be remitted on the next succeeding
Remittance Date together with any additional interest required to be deposited
in the Collection Account in connection with such Principal Prepayment in
accordance with Section 4.04 (xi). It is understood that, by operation of
Section 4.04, the remittance on the first Remittance Date is to include
principal collected after the applicable Cut-off Date, through the preceding
Determination Date plus interest, adjusted to the Mortgage Loan Remittance
Rate
collected through such Determination Date exclusive of any portion thereof
allocable to the period prior to such Cut-off Date, with the adjustments
specified in clauses (ii), (iii) and (iv) above.
54
With
respect to any remittance received by the Purchaser after the Business Day
on
which such payment was due, the Seller shall pay to the Purchaser interest
on
any such late payment at an annual rate equal to the Prime Rate, adjusted as
of
the date of each change, plus three (3) percentage points, but in no event
greater than the maximum amount permitted by applicable law. Such interest
shall
be deposited in the Custodial Account by the Seller on the date such late
payment is made and shall cover the period commencing with the day following
such Business Day and ending with the Business Day on which such payment is
made, both inclusive. Such interest shall be remitted along with the
distribution payable on the next succeeding Remittance Date. The payment by
the
Seller of any such interest shall not be deemed an extension of time for payment
or a waiver of any Event of Default by the Seller.
|
Section
5.02
|
Statements
to the Purchaser.
|
The
Seller shall furnish to the Purchaser an individual loan accounting report,
in
hard copy and computer readable format, as of the last Business Day of each
month, in the Seller’s assigned loan number order to document Mortgage Loan
payment activity on an individual Mortgage Loan basis. With respect to each
month, the corresponding individual loan accounting report shall be received
by
the Purchaser no later than the seventh Business Day of the month of the
corresponding Remittance Date on a disk or tape or other computer-readable
format in such format as may be mutually agreed upon by both the Purchaser
and
Seller, and no later than the seventh Business Day of the month of the
corresponding Remittance Date in hard copy, which report, in hard copy, shall
be
substantially in the form of FNMA form 2010, monthly remittance report, as
updated or amended by FNMA, which shall contain the following:
|
(i)
|
With
respect to each Monthly Payment, the amount of such remittance allocable
to principal (including a separate breakdown of any Principal Prepayment,
including the date of such prepayment, and any prepayment penalties
or
premiums, along with a detailed report of interest on Principal Prepayment
amounts remitted in accordance with Section
4.04);
|
55
|
(ii)
|
with
respect to each Monthly Payment, the amount of such remittance allocable
to interest;
|
|
(iii)
|
the
amount of servicing compensation received by the Seller during the
prior
distribution period;
|
|
(iv)
|
the
aggregate Stated Principal Balance of the Mortgage
Loans;
|
|
(v)
|
the
aggregate of any expenses reimbursed to the Servicer during the prior
distribution period pursuant to Section 4.05;
and
|
|
(vi)
|
the
number and aggregate outstanding principal balances of Mortgage Loans
(a)
delinquent (1) 30 to 59 days, (2) 60 to 89 days, (3) 90 days or more;
(b)
as to which foreclosure has commenced; and (c) as to which REO Property
has been acquired.
|
The
Seller shall also provide a trial balance on computer readable tape or other
electronic means of transmission acceptable to the Purchaser, with each such
Report.
The
Seller shall prepare and file any and all information statements or other
filings required to be delivered to any governmental taxing authority or to
the
Purchaser pursuant to any applicable law with respect to the Mortgage Loans
and
the transactions contemplated hereby. In addition, the Seller shall provide
the
Purchaser with such information concerning the Mortgage Loans as is necessary
for the Purchaser to prepare its federal income tax return as the Purchaser
may
reasonably request from time to time.
In
addition, not more than sixty (60) days after the end of each calendar year,
the
Seller shall furnish to each Person who was a Purchaser at any time during
such
calendar year an annual statement in accordance with the requirements of
applicable federal income tax law as to the aggregate of remittances for the
applicable portion of such year.
|
Section
5.03
|
Monthly
Advances by the Seller.
|
Not
later
than the close of business on the Business Day preceding each Remittance Date,
the Seller shall deposit in the Custodial Account from its own funds an amount
equal to all payments not previously advanced by the Seller, whether or not
deferred pursuant to Section 4.01, of principal (due after the related Cut-off
Date) and interest not allocable to the period prior to the related Cut-off
Date, adjusted to the Mortgage Loan Remittance Rate, which were due on a
Mortgage Loan and delinquent at the close of business on the related
Determination Date. The Seller’s obligation to make such Monthly Advances as to
any Mortgage Loan will continue through the date of final disposition and
liquidation of the related Mortgage Loan or any Mortgaged Property acquired
through foreclosure or a conveyance in lieu of foreclosure, unless the Seller
reasonably determines such advance to be nonrecoverable. In such event, the
Seller shall deliver to the Purchaser an Officer’s Certificate of the Seller to
the effect that an officer of the Seller has reviewed the related Mortgage
File
and has made the reasonable determination that any additional advances are
nonrecoverable.
56
|
Section
5.04
|
Liquidation
Reports.
|
Upon
the
foreclosure sale of any Mortgaged Property or the acquisition thereof by the
Purchaser pursuant to a deed-in-lieu of foreclosure, the Seller shall submit
to
the Purchaser a liquidation report with respect to such Mortgaged Property.
The
Seller shall also provide reports on the status of REO Property containing
such
information as Purchaser may reasonably require.
ARTICLE
VI
GENERAL
SERVICING PROCEDURES
|
Section
6.01
|
Assumption
Agreements.
|
The
Seller will, to the extent it has knowledge of any conveyance or prospective
conveyance by any Mortgagor of the Mortgaged Property (whether by absolute
conveyance or by contract of sale, and whether or not the Mortgagor remains
or
is to remain liable under the Mortgage Note and/or the Mortgage), exercise
its
rights to accelerate the maturity of such Mortgage Loan under any “due-on-sale”
clause to the extent permitted by law; provided, however, that the Seller shall
not exercise any such rights if prohibited by law or the terms of the Mortgage
Note from doing so or if the exercise of such rights would impair or threaten
to
impair any recovery under the related Primary Mortgage Insurance Policy, if
any.
If the Seller reasonably believes it is unable under applicable law to enforce
such “due-on-sale” clause, the Seller, with the approval of the Purchaser (such
approval not to be unreasonably withheld), will enter into an assumption
agreement with the person to whom the Mortgaged Property has been conveyed
or is
proposed to be conveyed, pursuant to which such person becomes liable under
the
Mortgage Note and, to the extent permitted by applicable state law, the
Mortgagor remains liable thereon. Where an assumption is allowed pursuant to
this Section 6.01, the Seller, with the prior consent of the Purchaser and
the
primary mortgage insurer, if any, is authorized to enter into a substitution
of
liability agreement with the person to whom the Mortgaged Property has been
conveyed or is proposed to be conveyed pursuant to which the original mortgagor
is released from liability and such Person is substituted as mortgagor and
becomes liable under the related Mortgage Note. Any such substitution of
liability agreement shall be in lieu of an assumption agreement. The Purchaser
shall be deemed to have consented to any assumption for which the Purchaser
was
given notification and requested to consent, but for which neither a consent
nor
an objection was given by the Purchaser within two (2) Business Days of such
notification.
57
In
connection with any such assumption or substitution of liability, the Seller
shall follow the underwriting practices and procedures of the FNMA or FHLMC
Guides for “A” quality Mortgage Loans. With respect to an assumption or
substitution of liability, the Mortgage Interest Rate borne by the related
Mortgage Note and the amount of the Monthly Payment may not be changed (and,
for
adjustable rate Mortgage Loans, none of the applicable adjustable rate terms
may
not be changed). If the credit of the proposed transferee does not meet such
underwriting criteria, the Seller diligently shall, to the extent permitted
by
the Mortgage or the Mortgage Note and by applicable law, accelerate the maturity
of the Mortgage Loan. The Seller shall notify the Purchaser that any such
substitution of liability or assumption agreement has been completed by
forwarding to the Purchaser the original of any such substitution of liability
or assumption agreement, which document shall be added to the related Mortgage
File and shall, for all purposes, be considered a part of such Mortgage File
to
the same extent as all other documents and instruments constituting a part
thereof. All fees collected by the Seller for entering into an assumption or
substitution of liability agreement shall belong to the Seller.
Notwithstanding
the foregoing paragraphs of this Section or any other provision of this
Agreement, the Seller shall not be deemed to be in default, breach or any other
violation of its obligations hereunder by reason of any assumption of a Mortgage
Loan by operation of law or any assumption which the Seller may be restricted
by
law from preventing, for any reason whatsoever. For purposes of this Section
6.01, the term “assumption” is deemed to also include a sale of the Mortgaged
Property subject to the Mortgage that is not accompanied by an assumption or
substitution of liability agreement.
|
Section
6.02
|
Satisfaction
of Mortgages and Release of Mortgage
Files.
|
Upon
the
payment in full of any Mortgage Loan, or the receipt by the Seller of a
notification that payment in full will be escrowed in a manner customary for
such purposes, the Seller will provide written notification to the Purchaser
(or
Purchaser’s designee) within three (3) days. Such notification
shall state all amounts received or to be received in connection with such
payment which are required to be deposited in the Custodial Account pursuant
to
Section 4.04 have been or will be so deposited, of a Servicing Officer and
shall
request delivery to it of the portion of the Mortgage File held by the Purchaser
(or Purchaser’s designee). The Purchaser (or Purchaser’s designee) shall no
later than five (5) Business Days after receipt of such notification and
request, release or cause to be released to the Seller, the related Mortgage
Loan Documents and, upon its receipt of such documents, the Seller shall
promptly prepare and execute (pursuant to a power of attorney or limited officer
appointment to be provided by Purchaser upon request) by Seller the requisite
satisfaction or release. No expense incurred in connection with any instrument
of satisfaction or deed of reconveyance shall be chargeable to the Custodial
Account.
58
In
the
event the Seller satisfies or releases a Mortgage without having obtained
payment in full of the indebtedness secured by the Mortgage or should it
otherwise prejudice any right the Purchaser may have under the mortgage
instruments, the Seller, upon written demand, shall remit within two (2)
Business Days to the Purchaser the then outstanding principal balance of the
related Mortgage Loan by deposit thereof in the Custodial Account. The Seller
shall maintain the Fidelity Bond and errors and omissions insurance insuring
the
Seller against any loss it may sustain with respect to any Mortgage Loan not
satisfied in accordance with the procedures set forth herein.
From
time
to time and as appropriate for the servicing or foreclosure of the Mortgage
Loan, including for the purpose of collection under any Primary Mortgage
Insurance Policy, the Purchaser shall, upon request of the Seller and delivery
to the Purchaser (or its designee) of a servicing receipt signed by a Servicing
Officer, release the portion of the Mortgage File held by the Purchaser (or
its
designee) to the Seller. Such servicing receipt shall obligate the Seller to
return the related Mortgage Loan Documents to the Purchaser (or its designee)
when the need therefor by the Seller no longer exists, unless the Mortgage
Loan
has been liquidated and the Liquidation Proceeds relating to the Mortgage Loan
have been deposited in the Custodial Account or the Mortgage File or such
document has been delivered to an attorney, or to a public trustee or other
public official as required by law, for purposes of initiating or pursuing
legal
action or other proceedings for the foreclosure of the Mortgaged
Property either judicially or non-judicially, and the Seller has delivered
to
the Purchaser (or its designee) a certificate of a Servicing Officer certifying
as to the name and address of the Person to which such Mortgage File or such
document was delivered and the purpose or purposes of such delivery. Upon
receipt of a certificate of a Servicing Officer stating that such Mortgage
Loan
was liquidated, the servicing receipt shall be released by the Purchaser (or
its
designee) to the Seller.
|
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, subject
to payment of compensating interest on Principal Prepayments. 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
to
the extent not required to be deposited in the Custodial Account. The Seller
shall be required to pay all expenses incurred by it in connection with its
servicing activities hereunder and shall not be entitled to reimbursement
therefor except as specifically provided for herein.
|
Section
6.04
|
Annual
Statement as to Compliance; Annual Independent Certified Public
Accountants’ Servicing Report.
|
The
Seller will deliver to the Purchaser annually, after the close of Seller’s
fiscal year:
59
(1) and
within one hundred twenty (120) days of such fiscal year end, a statement to
the
Purchaser from a firm of independent public accountants which is a member of
the
American Institute of Certified Public Accountants, to the effect that such
firm
has examined certain documents and records relating to the Seller’s servicing of
mortgage loans of the same type as the Mortgage Loans pursuant to servicing
agreements substantially similar to this Agreement, which agreements may include
this Agreement, and that, on the basis of such an examination, conducted
substantially in accordance with the uniform single audit program for mortgage
bankers, such firm is of the opinion that the Seller’s servicing has been
conducted in compliance with the agreements examined pursuant to this Section
6.05, except for (i) such exceptions as such firm shall believe to be
immaterial, and (ii) such other exceptions as shall be set forth in
such statement. Copies of such statement shall be provided by the Seller to
the
Purchaser; and
(2) copies
of
Seller’s audited financial statements upon execution by Purchaser of an
agreement to keep confidential the contents of such financial
statements;
(3) The
Seller will deliver to the Purchaser, to any master servicer which is master
servicing any of the Mortgage Loans pursuant to a pass-through transfer or
other
securitization transaction (each, a “Master Servicer”) and to any entity which
is the depositor of the Mortgage Loans pursuant to a Pass-Through Transfer
or
other securitization transaction (each, a “Depositor”) not later than March 15
of each calendar year, an Officer’s Certificate stating, as to each signatory
thereof, that (i) a review of the activities of the Seller during the preceding
year and of performance under this Agreement has been made under such officers’
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
throughout such year, or, if there has been a default in the fulfillment of
any
such obligation, specifying each such default known to such officer and the
nature and status thereof. Copies of such statement may be provided
by the Purchaser to any Person identified as a prospective purchaser of the
Mortgage Loans; and
(4) With
respect to any Mortgage Loans that are subject to a pass-through transfer or
other securitization transaction, by March 15 of each year (or if not a Business
Day, the immediately preceding Business Day), or at any other time upon thirty
(30) days written request, an officer of the Seller shall execute and deliver
an
Officer’s Certificate to the Purchaser, any Master Servicer and any Depositor
for the benefit of each such entity and such entity’s affiliates and the
officers, directors and agents of any such entity and such entity’s affiliates,
an Officer’s Certificate in the form attached hereto as Exhibit I;
and
60
(5) The
Seller shall indemnify and hold harmless the Master Servicer, the Depositor,
the
Purchaser (and if this Agreement has been assigned in whole or in part by the
Purchaser, any and all Persons previously acting as “Purchaser” hereunder), and
their respective officers, directors, agents and affiliates, and such
affiliates’ officers, directors and agents (any such person, an “Indemnified
Party”) from and against any losses, damages, penalties, fines, forfeitures,
reasonable legal fees and related costs, judgments and other costs and expenses
arising out of or based upon a breach by the Seller or any of its officers,
directors, agents or affiliates of its obligations under this Section 6.04,
or
the negligence, bad faith or willful misconduct of the Seller in connection
therewith. If the indemnification provided for herein is unavailable
or insufficient to hold harmless any Indemnified Party, then the Seller agrees
that it shall contribute to the amount paid or payable by the Indemnified Party
as a result of the losses, claims, damages or liabilities of the Indemnified
Party in such proportion as is appropriate to reflect the relative fault of
the
Indemnified Party on the one hand and the Seller in the other in connection
with
a breach of the Seller’s obligations under this Section 6.04, or the Seller’s
negligence, bad faith or willful misconduct in connection therewith;
and
(6) It
is
acknowledged and agreed that each Master Servicer and Depositor shall be an
express third party beneficiary of the provisions of this Section 6.04 and
shall
be entitled to independently enforce the provisions of this Section 6.04 with
respect to any obligations owed to such entity as if it were a direct party
to
this Agreement.
|
Section
6.05
|
RESERVED.
|
|
Section
6.06
|
Purchaser’s
Right to Examine Seller
Records.
|
The
Purchaser shall have the right to examine and audit upon reasonable notice
to
the Seller, during business hours or at such other times as might be reasonable
under applicable circumstances, any and all of the books, records, documentation
or other information of the Seller, or held by another for the Seller or on
its
behalf or otherwise, which relates to the performance or observance by the
Seller of the terms, covenants or conditions of this Agreement.
The
Seller shall provide to the Purchaser and any supervisory agents or examiners
representing a state or federal governmental agency having jurisdiction over
the
Purchaser, including but not limited to OTS, FDIC and other similar entities,
access to any documentation regarding the Mortgage Loans in the possession
of
the Seller which may be required by any applicable regulations. Such access
shall be afforded without charge, upon reasonable request, during normal
business hours and at the offices of the Seller, and in accordance with the
federal government, FDIC, OTS, or any other similar regulations.
61
ARTICLE
VII
REPORTS
TO BE PREPARED BY SELLER
|
Section
7.01
|
Seller
Shall Provide Information as Reasonably
Required.
|
The
Seller shall furnish to the Purchaser during the term of this Agreement, such
periodic, special or other reports, information or documentation, whether or
not
provided for herein, as shall be necessary, reasonable or appropriate in respect
to the Purchaser, or otherwise in respect to the Mortgage Loans and the
performance of the Seller under this Agreement, including any reports,
information or documentation reasonably required to comply with any regulations
regarding any supervisory agents or examiners of the Purchaser all such reports
or information to be as provided by and in accordance with such applicable
instructions and directions as the Purchaser may reasonably request in relation
to this Agreement or the performance of the Seller under this Agreement. The
Seller agrees to execute and deliver all such instruments and take all such
action as the Purchaser, from time to time, may reasonably request in order
to
effectuate the purpose and to carry out the terms of this
Agreement.
In
connection with marketing the Mortgage Loans, the Purchaser may make available
to a prospective purchaser audited financial statements of the Seller for the
most recently completed two (2) fiscal years for which such statements are
available, as well as a Consolidated Statement of Condition at the end of the
last two (2) fiscal years covered by any Consolidated Statement of Operations.
If it has not already done so, the Seller shall furnish promptly to the
Purchaser or a prospective purchaser copies of the statements specified above;
provided, however, that prior to furnishing such statements or information
to
any prospective purchaser, the Seller may require such prospective purchaser
to
execute a confidentiality agreement in a form satisfactory to the
Seller.
The
Seller shall make reasonably available to the Purchaser or any prospective
Purchaser a knowledgeable financial or accounting officer for the purpose of
answering questions and to permit any prospective purchaser to inspect the
Seller’s servicing facilities for the purpose of satisfying such prospective
purchaser that the Seller has the ability to service the Mortgage Loans as
provided in this Agreement.
62
ARTICLE
VIII
THE
SELLER
|
Section
8.01
|
Section
8.01 Indemnification.
|
The
Seller agrees to indemnify the Purchaser and its affiliates and hold them
harmless against any and all claims, losses, damages, penalties, fines,
forfeitures, legal fees and related costs, judgments, and any other costs,
fees
and expenses that the Purchaser or any of its affiliates may sustain in any
way
related to the failure of the Seller to observe and perform its duties,
obligations, covenants, and agreements to service the Mortgage Loans in strict
compliance with the terms of this Agreement. The Seller agrees to indemnify
the
Purchaser and its affiliates and hold them harmless against any and all claims,
losses, damages, penalties, fines, forfeitures, legal fees and related costs,
judgments, and any other costs, fees and expenses that the Purchaser or any
of
its affiliates may sustain in any way related to the breach of a representation,
warranty or covenant set forth in this Agreement. The Seller shall immediately
notify the Purchaser if a claim is made by a third party with respect to this
Agreement or the Mortgage Loans, assume (with the consent of the Purchaser)
the
defense of any such claim and pay all expenses in connection therewith,
including counsel fees, and promptly pay, discharge and satisfy any judgment
or
decree which may be entered against it or the Purchaser in respect of such
claim. The Seller shall follow any written instructions received from the
Purchaser in connection with such claim. The provisions of this Section 8.01
shall survive termination of this Agreement.
|
Section
8.02
|
Merger
or Consolidation of the Seller.
|
The
Seller will keep in full effect its existence, rights and franchises as a
corporation under the laws of the state of its incorporation except as permitted
herein, and will obtain and preserve its qualification to do business as a
foreign corporation in each jurisdiction in which such qualification is or
shall
be necessary to protect the validity and enforceability of this Agreement,
or
any of the Mortgage Loans and to perform its duties under this
Agreement.
Any
Person into which the 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 whether
or
not related to loan servicing, shall be the successor of the Seller hereunder,
without the execution or filing of any paper or any further act on the part
of
any of the parties hereto, anything herein to the contrary notwithstanding;
provided, however, that the successor or surviving Person shall be an
institution (i) having a GAAP net worth of not less than $25,000,000, (ii)
the
deposits of which are insured by the FDIC, SAIF and/or BIF, or which is a
HUD-approved mortgagee whose primary business is in origination and servicing
of
first lien mortgage loans, and (iii) who is a FNMA or FHLMC approved
seller/servicer in good standing.
63
|
Section
8.03
|
Limitation
on Liability of the Seller and
Others.
|
Neither
the Seller nor any of the officers, employees or agents of the Seller shall
be
under any liability to the Purchaser for any action taken or for refraining
from
the taking of any action in good faith pursuant to this Agreement, or for errors
in judgment made in good faith; provided, however, that this provision shall
not
protect the Seller or any such person against any breach of warranties or
representations made herein, or failure to perform its obligations in strict
compliance with any standard of care set forth in this Agreement, or any
liability which would otherwise be imposed by reason of negligence, bad faith
or
willful misconduct, or any breach of the terms and conditions of this Agreement.
The Seller and any officer, employee or agent of the Seller may rely in good
faith on any document of any kind prima facie properly executed and submitted
by
the Purchaser respecting any matters arising hereunder. The Seller shall not
be
under any obligation to appear in, prosecute or defend any legal action which
is
not incidental to its duties to service the Mortgage Loans in accordance with
this Agreement and which in its reasonable opinion may involve it in any
expenses or liability; provided, however, that the Seller may, with the consent
of the Purchaser, undertake any such action which it may deem necessary or
desirable in respect to this Agreement and the rights and duties of the parties
hereto. In such event, the reasonable legal expenses and costs of such action
and any liability resulting therefrom shall be expenses, costs and liabilities
for which the Purchaser will be liable, and the Seller shall be entitled to
be
reimbursed therefor from the Purchaser upon written demand.
|
Section
8.04
|
Seller
Not to Assign or Resign.
|
The
Seller shall not assign this Agreement or resign from the obligations and duties
hereby imposed on it except by mutual consent of the Seller and the Purchaser
or
upon the determination that its 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 which Opinion
of
Counsel shall be in form and substance acceptable to the Purchaser. No such
resignation shall become effective until a successor shall have assumed the
Seller’s responsibilities and obligations hereunder in the manner provided in
Section 11.01.
|
Section
8.05
|
No
Transfer of Servicing.
|
With
respect to the retention of the Seller to service the Mortgage Loans hereunder,
the Seller acknowledges that the Purchaser has acted in reliance upon the
Seller’s independent status, the adequacy of its servicing facilities, plan,
personnel, records and procedures, its integrity, reputation and financial
standing and the continuance thereof. Without in anyway limiting the generality
of this Section, the Seller shall not either assign this Agreement or the
servicing hereunder or delegate its rights or duties hereunder or any portion
thereof, or sell or otherwise dispose of all or substantially all of its
property or assets, without the prior written approval of the Purchaser, which
consent shall be granted or withheld in the Purchaser’s sole
discretion.
64
Without
in any way limiting the generality of this Section 8.05, in the event that
the
Seller either shall assign this Agreement or the servicing responsibilities
hereunder or delegate its duties hereunder or any portion thereof without (i)
satisfying the requirements set forth herein or (ii) the prior written consent
of the Purchaser, then the Purchaser shall have the right to terminate this
Agreement as set forth in Section 10.02, without any payment of any penalty
or
damages and without any liability whatsoever to the Seller (other than with
respect to accrued but unpaid Servicing Fees and Servicing Advances remaining
unpaid) or any third party.
ARTICLE
IX
DEFAULT
|
Section
9.01
|
Events
of Default.
|
In
case
one or more of the following Events of Default by the Seller shall occur and
be
continuing, that is to say:
|
(i)
|
any
failure by the Seller to remit to the Purchaser any payment required
to be
made under the terms of this Agreement which continues unremedied
for a
period of three (3) Business Days after the date upon which written
notice
of such failure, requiring the same to be remedied, shall have been
given
to the Seller by the Purchaser; or
|
|
(ii)
|
failure
on the part of the Seller duly to observe or perform in any material
respect any other of the covenants or agreements on the part of the
Seller
set forth in this Agreement which continues unremedied for a period
of
thirty (30) days (except that such number of days shall be fifteen
(15) in
the case of a failure to pay any premium for any insurance policy
required
to be maintained under this Agreement) after the date on which written
notice of such failure, requiring the same to be remedied, shall
have been
given to the Seller by the Purchaser;
or
|
|
(iii)
|
a
decree or order of a court or agency or supervisory authority having
jurisdiction for the appointment of a conservator or receiver or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshaling
of assets and liabilities or similar proceedings, or for the winding-up
or
liquidation of its affairs, shall have been entered against the Seller
and
such decree or order shall have remained in force undischarged or
unstayed
for a period of sixty (60) days; or
|
65
|
(iv)
|
the
Seller shall consent to the appointment of a conservator or receiver
or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshaling
of assets and liabilities or similar proceedings of or relating to
the
Seller or of or relating to all or substantially all of its property;
or
|
|
(v)
|
the
Seller shall admit in writing its inability to pay its debts generally
as
they become due, file a petition to take advantage of any applicable
insolvency or reorganization statute, make an assignment for the
benefit
of its creditors, or voluntarily suspend payment of its obligations;
or
|
|
(vi)
|
the
Seller ceases to be approved by either FNMA or FHLMC as a mortgage
loan
seller and servicer for more than thirty (30) days;
or
|
|
(vii)
|
the
Seller attempts to assign its right to servicing compensation hereunder
or
the Seller attempts, without the consent of the Purchaser, to sell
or
otherwise dispose of all or substantially all of its property or
assets or
to assign this Agreement or the servicing responsibilities hereunder
or to
delegate its duties hereunder or any portion thereof;
or
|
|
(viii)
|
the
Seller ceases to be (a) licensed to service first lien residential
mortgage loans in each jurisdiction in which a Mortgaged Property
is
located and such licensing is required, and (b) qualified to transact
business in any jurisdiction where it is currently so qualified,
but only
to the extent such non-qualification materially and adversely affects the
Seller’s ability to perform its obligations hereunder;
or
|
|
(ix)
|
the
Seller fails to meet the eligibility criteria set forth in the last
sentence of Section 8.02, then, and in each and every such case,
so long
as an Event of Default shall not have been remedied, the Purchaser,
by
notice in writing to the Seller may, in addition to whatever rights
the
Purchaser may have under Sections 3.03 and 8.01 and at law or equity
or to
damages, including injunctive relief and specific performance, terminate
all the rights and obligations of the Seller under this Agreement
and in
and to the Mortgage Loans and the proceeds thereof without compensating
the Seller for the same. On or after the receipt by the Seller of
such
written notice, all authority and power of the Seller under this
Agreement, whether with respect to the Mortgage Loans or otherwise,
shall
pass to and be vested in the successor appointed pursuant to Section
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 accomplish all
other acts or things necessary or appropriate to effect the purposes
of
such notice of termination, whether to complete the transfer and
endorsement or assignment of the Mortgage Loans and related documents,
or
otherwise, at the Seller’s sole expense. The Seller agrees to cooperate
with the Purchaser and such successor in effecting the termination
of the
Seller’s responsibilities and rights hereunder, including, without
limitation, the transfer to such successor for administration by
it of all
cash amounts which shall at the time be credited by the Seller to
the
Custodial Account or Escrow Account or thereafter received with respect
to
the Mortgage Loans or any REO Property;
or
|
66
|
(x)
|
the
Seller fails to duly perform, within the required time period, its
obligations under Section 6.04 of this Agreement, which failure continues
unremedied for a period of thirty (30) days after the date on which
written notice of such failure, requiring the same to be remedied,
shall
have been given to the Seller by any party to this Agreement or by
any
master servicer responsible for master servicing the Mortgage Loans
pursuant to a securitization of such Mortgage
Loans.
|
|
Section
9.02
|
Waiver
of Defaults.
|
The
Purchaser may waive only by written notice any default by the Seller in the
performance of its obligations hereunder and its consequences. Upon any such
waiver of a past default, such default shall cease to exist, and any Event
of
Default arising therefrom shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any subsequent or
other default or impair any right consequent thereon except to the extent
expressly so waived in writing.
ARTICLE
X
TERMINATION
|
Section
10.01
|
Termination.
|
The
respective obligations and responsibilities of the Seller shall terminate upon:
(i) the later of the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or the disposition of all REO
Property and the remittance of all funds due hereunder; or (ii) by mutual
consent of the Seller and the Purchaser in writing; or (iii) termination with
or
without cause under the terms of this Agreement.
|
Section
10.02
|
Termination
Without Cause.
|
The
Purchaser may, at its sole option, terminate the rights
of the Seller as Servicer hereunder, without cause, upon
written notice. Any such notice of termination shall be in writing and delivered
to the Seller as provided in Section 11.05 of this Agreement. In the event
of
such termination, the Purchaser agrees to pay, as liquidated damages, a sum
equal to the market value of the servicing rights as determined by a qualified,
licensed independent mortgage broker mutually selected by the
parties.
67
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
|
Section
11.01
|
Successor
to the Seller.
|
Prior
to
termination of Seller’s responsibilities and duties under this Agreement
pursuant to Sections 4.13, 8.04, 9.01, 10.01 or 10.02, the Purchaser shall
(i)
succeed to and assume all of the Seller’s responsibilities, rights, duties and
obligations under this Agreement, or (ii) appoint a successor which shall
succeed to all rights and assume all of the responsibilities, duties and
liabilities of the Seller under this Agreement prior to the termination of
Seller’s responsibilities, duties and liabilities under this Agreement. In
connection with such appointment and assumption, the Purchaser may make such
arrangements for the compensation of such successor out of payments on Mortgage
Loans as the Purchaser and such successor shall agree. In the event that the
Seller’s duties, responsibilities and liabilities under this Agreement should be
terminated pursuant to the aforementioned Sections, the Seller shall discharge
such duties and responsibilities during the period from the date it acquires
knowledge of such termination until the effective date thereof with the same
degree of diligence and prudence which it is obligated to exercise under this
Agreement, and shall take no action whatsoever that might impair or prejudice
the rights or financial condition of its successor. The resignation or removal
of Seller pursuant to the aforementioned Sections shall not become effective
until a successor shall be appointed pursuant to this Section and shall in
no
event relieve the Seller of the representations and warranties made pursuant
to
Sections 3.01, 3.02 and 3.03 and the remedies available to the Purchaser and
under Section 8.01, it being understood and agreed that the provisions of
Article III and Section 8.01 shall be applicable to the Seller notwithstanding
any such resignation or termination of the Seller, or the termination of this
Agreement.
Any
successor appointed as provided herein shall execute, acknowledge and deliver
to
the Seller and to the Purchaser an instrument accepting such appointment,
whereupon such successor shall become fully vested with all the rights, powers,
duties, responsibilities, obligations and liabilities of the Seller, with like
effect as if originally named as a party to this Agreement. Any termination
or
resignation of the Seller or this Agreement pursuant to Section 4.13, 8.04,
9.01, 10.01, or 10.02 shall not affect any claims that the Purchaser may have
against the Seller arising prior to any such termination or
resignation.
The
Seller shall promptly deliver to the successor the funds in the Custodial
Account and the Escrow Account and the Mortgage Files and related documents
and
statements held by it hereunder and the Seller shall account for all funds.
The
Seller shall execute and deliver such instruments and do such other things
all
as may reasonably be required to more fully and definitely vest and confirm
in
the successor all such rights, powers, duties, responsibilities, obligations
and
liabilities of the Seller. The successor shall make arrangements as it may
deem
appropriate to reimburse the Seller for unrecovered Servicing Advances which
the
successor retains hereunder and which would otherwise have been recovered by
the
Seller pursuant to this Agreement but for the appointment of the successor
servicer.
68
Upon
a
successor’s acceptance of appointment as such, the Seller shall notify by mail
the Purchaser of such appointment.
|
Section
11.02
|
Amendment.
|
This
Agreement may be amended from time to time by the Seller and the Purchaser
by
written agreement signed by the Seller and the Purchaser.
|
Section
11.03
|
Recordation
of Agreement.
|
To
the
extent permitted by applicable law, this Agreement is subject to recordation
in
all appropriate public offices for real property records in all the counties
or
other comparable jurisdictions in which any or all the properties subject to
the
Mortgages are situated, and in any other appropriate public recording office
or
elsewhere, such recordation to be effected by the Seller at the Seller’s expense
on direction of the Purchaser accompanied by an Opinion of Counsel to the effect
that such recordation materially and beneficially affects the interest of the
Purchaser or is necessary for the administration or servicing of the Mortgage
Loans.
|
Section
11.04
|
Governing
Law.
|
This
Agreement shall be governed by and construed in accordance with internal laws
of
the Commonwealth of Virginia without regard to conflict of laws principles.
The
parties hereby agree to submit to the jurisdiction of the Courts of the
Commonwealth of Virginia and/or the United States Federal Court for the District
encompassing Virginia. The parties further agree not to raise any
objection to venue of a court located in the Commonwealth of
Virginia.
|
Section
11.05
|
Notices.
|
Any
demands, notices or other communications; permitted or required hereunder shall
be in writing and shall be deemed conclusively to have been given if personally
delivered at or mailed by registered mail, postage prepaid, and return receipt
requested or certified mail, return receipt requested, or transmitted by telex,
telegraph or telecopier and confirmed by a similar mailed writing, as
follows:
|
(i)
|
if
to the Seller:
|
|
(ii)
|
if
to the Purchaser:
|
69
|
|
UBS
Real Estate Securities Inc.
|
|
|
0000
Xxxxxx xx xxx Xxxxxxxx
|
|
|
Xxx
Xxxx, XX 00000
|
|
|
Attention: Legal
Department
|
or
such
other address as may hereafter be furnished to the other party by like notice.
Any such demand, notice or communication hereunder shall be deemed to have
been
received on the date delivered to or received at the premises of the addressee
(as evidenced, in the case of registered or certified mail, by the date noted
on
the return receipt).
|
Section
11.06
|
Severability
of Provisions.
|
Any
part,
provision, representation or warranty of this Agreement which is prohibited
or
which is held to be void or unenforceable shall be ineffective to the extent
of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation or warranty of this
Agreement which is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall be ineffective, as to such jurisdiction,
to the extent of such prohibition or unenforceability without invalidating
the
remaining provisions hereof, and any such prohibition or unenforceability in
any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof. If the invalidity of
any
part, provision, representation or warranty of this Agreement shall deprive
any
party of the economic benefit intended to be conferred by this Agreement, the
parties shall negotiate, in good faith, to develop a structure the economic
effect of which is nearly as possible the same as the economic effect of this
Agreement without regard to such invalidity.
|
Section
11.07
|
Exhibits.
|
The
exhibits to this Agreement are hereby incorporated and made a part hereof and
are an integral part of this Agreement.
|
Section
11.08
|
General
Interpretive Principles.
|
For
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires:
|
(i)
|
the
terms defined in this Agreement have the meanings assigned to them
in this
Agreement and include the plural as well as the singular, and the
use of
any gender herein shall be deemed to include the other
gender;
|
70
|
(ii)
|
accounting
terms not otherwise defined herein have the meanings assigned to
them in
accordance with GAAP;
|
|
(iii)
|
references
herein to “Articles,” “Sections,” “Subsections,” “Paragraphs,” and other
subdivisions without reference to a document are to designated Articles,
Sections, Subsections, Paragraphs and other subdivisions of this
Agreement;
|
|
(iv)
|
a
reference to a Subsection without further reference to a Section
is a
reference to such Subsection as contained in the same Section in
which the
reference appears, and this rule shall also apply to Paragraphs and
other
subdivisions;
|
|
(v)
|
the
words “herein,” “hereof,” “hereunder,” and other words of similar import
refer to this Agreement as a whole and not to any particular
provision;
|
|
(vi)
|
the
term “include” or “including” shall mean without limitation by reason of
enumeration; and
|
|
(vii)
|
headings
of the Articles and Sections in this Agreement are for reference
purposes
only and shall not be deemed to have any substantive
effect.
|
|
Section
11.09
|
Reproduction
of Documents.
|
This
Agreement and all documents relating thereto, including, without limitation,
(i)
consents, waivers and modifications which may hereafter be executed, (ii)
documents received by any party at the closing, and (iii) financial statements,
certificates and other information previously or hereafter furnished, may be
reproduced by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties agree that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in
evidence.
|
Section
11.10
|
Recordation
of Assignments of Mortgage.
|
To
the
extent permitted by applicable law, each of the Assignments of Mortgage is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any
or
all of the Mortgaged Properties are situated, and in any other appropriate
public recording office or elsewhere, such recordation to be effected by the
Seller at the Seller’s expense in the event recordation is either necessary
under applicable law or requested by the Purchaser, at its sole
option.
71
|
Section
11.11
|
Assignment
by Purchaser.
|
The
Purchaser shall have the right, without the consent of the Seller hereof, to
assign, in whole or in part, its interest under this Agreement with respect
to
some or all of the Mortgage Loans, and designate any person to exercise any
rights of the Purchaser hereunder. Upon any such assignment, the Person to
whom
such assignment is made shall succeed to all rights and obligations of the
Purchaser under this Agreement to the extent of the related Mortgage Loan or
Mortgage Loans and this Agreement, to the extent of the related Mortgage Loan
or
Loans, shall be deemed to be a separate and distinct Agreement between the
Seller and such Purchaser, and a separate and distinct Agreement between the
Seller and each other Purchaser to the extent of the other related Mortgage
Loan
or Loans. In the event that this Agreement is assigned to any Person
to whom the servicing or master servicing of any Mortgage Loan is sold or
transferred, the rights and benefits under this agreement which inure to the
Purchaser shall inure to the benefit of both the Person to whom such Mortgage
Loan is transferred and the Person to whom the servicing or master servicing
of
the Mortgage Loan has been transferred; provided that, the right to require
a
Mortgage Loan to be repurchased by the Seller pursuant to Article III shall
be
retained solely by the Purchaser.
|
Section
11.12
|
No
Partnership.
|
Nothing
herein contained shall be deemed or construed to create a 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
Purchaser.
|
Section
11.13
|
Execution;
Successors and Assigns.
|
This
Agreement may be executed in one or more counterparts and by the different
parties hereto on separate counterparts, each of which, when so executed, shall
be deemed to be an original; such counterparts, together, shall constitute
one
and the same agreement. Subject to Section 8.04, this Agreement shall inure
to
the benefit of and be binding upon the Seller and the Purchaser and their
respective successors and assigns. This Agreement shall not be assigned, pledged
or hypothecated by the Seller to a third party (or an affiliate of the Seller)
without the consent of the Purchaser.
|
Section
11.14
|
Entire
Agreement.
|
The
Seller acknowledges that no representations, agreements or promises were made
to
the Seller by the Purchaser or any of its employees other than those
representations, agreements or promises specifically contained herein. This
Agreement sets forth the entire understanding between the parties hereto and
shall be binding upon all successors of both parties. In the event of any
inconsistency between the Purchase Price and Terms Letter or the UBS Website,
as
applicable, for the related pool of Mortgage Loans and this Agreement, this
Agreement shall control.
72
|
Section
11.15
|
No
Solicitation.
|
From
and
after each Closing Date, the Seller agrees that it will not take any
action or permit or cause any action to be taken by the Seller, any of its
agents or affiliates, or by any independent contractors on the Seller’s behalf,
to personally, by telephone, mail, or electronically by e-mail or through the
internet or otherwise solicit the borrower or obligor under any Mortgage Loan
to
refinance the Mortgage Loan, in whole or in part, without the prior written
consent of the Purchaser. It is understood and agreed that all rights and
benefits relating to the solicitation of any Mortgagors to refinance any
Mortgage Loans and the attendant rights, title and interest in and to the list
of such Mortgagors and data relating to their Mortgages (including insurance
renewal dates) shall be transferred to the Purchaser pursuant hereto on the
applicable Closing Date and the Seller shall take no action to undermine these
rights and benefits. Notwithstanding the foregoing, it is understood and agreed
that promotions undertaken by or on behalf of the Seller or any affiliate of
the
Seller which are directed to the general public at large, or segments thereof,
provided that no segment shall consist primarily of the Mortgage Loans,
including, without limitation, mass mailing, newspaper, radio and television
advertisements shall not constitute solicitation under this Section 11.15.
The
Seller shall use its best efforts to prevent the sale of the name of any
Mortgagor to any Person who is not an affiliate of the Seller.
|
Section
11.16
|
Closing.
|
The
closing for the purchase and sale of the Mortgage Loans shall take place on
the
applicable Closing Date. The closing shall be either: by telephone, confirmed
by
letter or wire as the parties shall agree, or conducted in person, at such
place
as the parties shall agree.
The
closing for the Mortgage Loans to be purchased on each Closing Date shall be
subject to each of the following conditions:
|
(a)
|
with
respect to Mortgage Loans which are not UBS Website Mortgage Loans,
as
applicable, at least two (2) Business Days prior to the applicable
Closing
Date, the Seller shall deliver to the Purchaser a magnetic diskette,
or
transmit by modem, a listing on a loan-level basis of the information
contained in the related Mortgage Loan
Schedule;
|
|
(b)
|
all
of the representations and warranties of the Seller under this Agreement
shall be true and correct as of the applicable Closing Date and no
event
shall have occurred which, with notice or the passage of time, would
constitute a material default under this
Agreement;
|
73
|
(c)
|
the
Purchaser shall have received, or the Purchaser’s attorneys shall have
received in escrow, all closing documents, in such forms as are agreed
upon and acceptable to the Purchaser (including, but not limited
to,
completed original copies of all exhibits hereto, including but not
limited to those set forth in clause (e) below), duly executed by
all
signatories other than the Purchaser as required pursuant to the
terms
hereof,
|
|
(d)
|
the
Seller shall have delivered and released to the Purchaser (or its
designee) on or prior to the applicable Closing Date all documents
required pursuant to the terms of this
Agreement;
|
|
(e)
|
the
Seller shall have complied with all other terms and conditions of
this
Agreement and, with respect to Mortgage Loans which are not UBS Website
Mortgage Loans, the related Purchase Price and Terms
Letter;
|
|
(f)
|
with
respect to Mortgage Loans which are not UBS Website Mortgage Loans,
an
Assignment and Conveyance in the form of Exhibit H1 hereto;
and
|
|
(g)
|
with
respect to each UBS Website Mortgage Loan, an Electronically executed
Assignment and Conveyance in the form of Exhibit H2
hereto
|
Subject
to the foregoing conditions, the Purchaser shall pay to the Seller on the
applicable Closing Date the Purchase Price for the related pool of
Mortgage Loans, plus accrued interest pursuant to Section 2.02 of this
Agreement, by wire transfer of immediately available funds to the account
designated by the Seller.
|
(h)
|
On
or before the initial Closing Date, the Seller shall submit to the
Purchaser fully executed originals of the following
documents:
|
|
1.
|
|
this
Agreement, in four counterparts;
|
|
2.
|
|
a
Custodial Account Letter Agreement in the form attached as Exhibit
C hereto;
|
|
3.
|
an
Escrow Account Letter Agreement in the form attached as Exhibit C
hereto;
|
|
4.
|
|
an
Officer’s Certificate, in the form of Exhibit E hereto, including
all attachments thereto; and
|
|
5.
|
|
an
Opinion of Counsel to the Seller, in the form of Exhibit F
hereto.
|
74
|
(i)
|
On
or before each Closing Date, the Seller shall submit to the Purchaser
fully executed originals of the following
documents:
|
|
1.
|
|
with
respect to Mortgage Loans which are not UBS Website Mortgage Loans,
the
related Purchase Price and Terms
Letter;
|
|
2.
|
|
with
respect to Mortgage Loans which are not UBS Website Mortgage Loans,
the
related Mortgage Loan Schedule;
|
|
3.
|
|
an
Officer’s Certificate, in the form of Exhibit E hereto, including
all attachments thereto;
|
|
4.
|
|
if
requested by the Purchaser, an Opinion of Counsel to the Seller,
in the
form of Exhibit F hereto;
|
|
5.
|
|
if
any of the Mortgage Loans has at any time been subject to any security
interest, pledge or hypothecation for the benefit of any Person,
a
Security Release Certification, in the form of Exhibit G hereto,
executed by such Person;
|
|
6.
|
|
a
certificate or other evidence of merger or change of name, signed
or
stamped by the applicable regulatory authority, if any of the Mortgage
Loans were acquired by the Seller by merger or acquired or originated
by
the Seller while conducting business under a name other than its
present
name, if applicable; and
|
|
7.
|
|
an
Assignment and Conveyance in the form of Exhibit H1 or Exhibit
H2 hereto.
|
|
Section
11.17
|
Cooperation
of Seller with a
Reconstitution.
|
The
Seller and the Purchaser agree that with respect to some or all of the Mortgage
Loans, on or after the Closing Date, on one or more dates (each a
“Reconstitution Date”) at the Purchaser’s sole option, the Purchaser may effect
a sale (each, a “Reconstitution”) of some or all of the Mortgage Loans then
subject to this Agreement, without recourse, to:
|
(a)
|
one
or more third party purchasers in one or more in whole loan transfers
(each, a “Whole Loan Transfer”); or
|
|
(b)
|
one
or more trusts or other entities to be formed as part of one or more
pass-through transfers (each, a “Pass-Through
Transfer”).
|
75
With
respect to each Whole Loan Transfer and each Pass-Through Transfer entered
into
by the Purchaser, the Seller agrees (1) to cooperate fully with the Purchaser,
any prospective purchaser, any master servicer or trustee and/or any issuer
or
other participant in such Reconstitution (“Reconstitution Parties”) with respect
to all reasonable requests and due diligence procedures; (2) to execute, deliver
and perform all seller’s warranties and servicing agreements, participation and
servicing agreements, pooling and servicing agreements or similar agreements
(collectively, “Reconstitution Agreements”) requested by the Purchaser, which
shall contain, among other provisions, such provisions and requirements as
will,
in the case of a Pass-Through Transfer, enable some or all of the securities
issued in connection with such Pass-Through Transfer to be rated in the highest
rating category by one or more Rating Agencies; and (3) to restate in the
Reconstitution Agreement or in another appropriate agreement or letter requested
by the Purchaser the representations and warranties set forth in this Agreement
as of the settlement or closing date in connection with such Reconstitution
(each, a “Reconstitution Date”); provided that with respect to those
representations and warranties that relate to delinquency or condition of the
Mortgaged Property, the Seller shall only be required to restate such
representations and warranties as of the Closing Date and shall represent and
warrant as to the actual status thereof as of the Reconstitution Date. The
Seller shall provide to the Purchaser and/or any other participants in such
Reconstitution: (i) any and all information and appropriate verification of
information which may be reasonably available to the Seller, whether through
letters of its auditors, opinions of counsel or otherwise, as the Purchaser
or
any such other participant shall request; and (ii) such additional
representations, warranties, covenants, opinions of counsel, letters from
auditors, and certificates of public officials or officers of the Seller as
are
reasonably agreed upon by the Seller and the Purchaser or any such other
participant. The Seller shall indemnify the Purchaser and Reconstitution Parties
for the accuracy and completeness of all such information provided by or on
behalf of the Seller. The Purchaser shall be responsible for the costs relating
to the delivery of such information.
In
the
event the Seller has agreed to and does hold record title to the Mortgages
prior
to the Reconstitution Date, the Seller shall prepare an assignment of mortgage
in blank to the prospective purchaser, issuer or trustee, as applicable, from
the Seller, acceptable to the prospective purchaser, issuer or trustee, as
applicable, for each Mortgage Loan that is part of the Reconstitution and shall
pay all preparation and initial recording costs associated therewith. In
connection with the Reconstitution, and at the expense of Purchaser, the Seller
shall execute each assignment of mortgage, track such assignments of mortgage
to
ensure they have been recorded and deliver them as required by the prospective
purchaser or trustee, as applicable, upon the Seller’s receipt thereof.
Additionally, at the expense of Purchaser, the Seller shall prepare and execute,
at the direction of the Purchaser, any note endorsement in connection with
any
and all seller/servicer agreements.
All
Mortgage Loans not sold or transferred pursuant to a Reconstitution shall remain
subject to this Agreement and, if this Agreement shall remain in effect with
respect to the related Mortgage Loans, 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.
76
|
Section
11.18
|
Financial
Statements.
|
The
Seller understands that in connection with the Purchaser’s marketing of the
Mortgage Loans, the Purchaser shall make available to prospective purchasers
the
Seller’s financial statements for the most recently completed three (3) fiscal
years respecting which such statements are available. The Seller also shall
make
available any comparable interim statements to the extent any such statements
have been prepared by the Seller (and are available upon request to members
or
stockholders of the Seller or the public at large). The Seller, if it has not
already done so, agrees to furnish promptly to the Purchaser copies of the
statements specified above. The Seller also shall make available information
on
its servicing performance with respect to loans serviced for others, including
delinquency ratios.
The
Seller also agrees to allow access to knowledgeable financial, accounting,
origination and servicing officers of the Seller for the purpose of answering
questions asked by any prospective purchaser regarding recent developments
affecting the Seller, its loan origination or servicing practices or the
financial statements of the Seller.
|
Section
11.19
|
Mandatory
Delivery: Grant of Security
Interest.
|
The
sale
and delivery of each Mortgage Loan on or before the related Closing Date is
mandatory from and after the date of the execution of the related Purchase
Price
and Terms Letter or the preliminary notice of execution as set forth on the
UBS
Website, it being specifically understood and agreed that each Mortgage Loan
is
unique and identifiable on the date of such Purchase Price and Terms Letter
or
preliminary notice and that an award of money damages would be insufficient
to
compensate the Purchaser for the losses and damages incurred by the Purchaser
(including damages to prospective purchasers of the Mortgage Loans) in the
event
of the Seller’s failure to deliver each of the related Mortgage Loans or one or
more Mortgage Loans otherwise acceptable to the Purchaser on or before the
related Closing Date. The Seller hereby grants to the Purchaser a lien on and
a
continuing security interest in each Mortgage Loan and each document and
instrument evidencing each such Mortgage Loan to secure the performance by
the
Seller of its obligations hereunder, and the Seller agrees that it holds such
Mortgage Loans in custody for the Purchaser subject to the Purchaser’s (i) right
to reject any Mortgage Loan under the terms of this Agreement and the related
Purchase Price and Terms Letter or the UBS Website Program and (ii) obligation
to pay the related Purchase Price for the Mortgage Loans. All rights and
remedies of the Purchaser under this Agreement are distinct from, and cumulative
with, any other rights or remedies under this Agreement or afforded by law
or
equity and all such rights and remedies may be exercised concurrently,
independently or successively.
77
|
Section
11.20
|
Intention
of the Parties.
|
It
is the
intention of the parties that the Purchaser is purchasing, and the Seller is
selling, the Mortgage Loans and not a debt instrument of the Seller or another
security. Accordingly, the parties hereto each intend to treat the transaction
for Federal income tax purposes as a sale by the Seller, and a purchase by
the
Purchaser, of the Mortgage Loans. The Purchaser shall have the right to review
the Mortgage Loans and the related Mortgage Files to determine the
characteristics of the Mortgage Loans which shall affect the Federal income
tax
consequences of owning the Mortgage Loans and the Seller shall cooperate with
all reasonable requests made by the Purchaser in the course of such
review.
|
Section
11.21
|
Waivers.
|
No
term
or provision of this Agreement may be waived or modified unless such waiver
or
modification is in writing and signed by the party against whom such waiver
or
modification is sought to be enforced.
|
Section
11.22
|
Further
Agreements.
|
The
Seller and the Purchaser each agree to execute and deliver to the other such
reasonable and appropriate additional documents, instruments or agreements
as
may be necessary or appropriate to effectuate the purposes of this
Agreement.
|
Section
11.23
|
Reproduction
of Documents.
|
This
Agreement and all documents relating thereto, including, without limitation,
(a)
consents, waivers and modifications which may hereafter be executed, (b)
documents received by any party at the closing, and (c) financial statements,
certificates and other information previously or hereafter furnished, may be
reproduced by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties agree that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in
evidence.
78
|
Section
11.24
|
Electronic
Execution.
|
With
respect to the UBS Website Mortgage Loans, the Seller and the Purchaser hereto
agree that each document required to be executed under this Agreement including,
without limitation, the Assignment and Conveyance, the form of which is attached
hereto as Exhibit H2, and required to be delivered on the Closing Dates shall
be
executed by the Seller Electronically. The Seller and the Purchaser
hereby agree that any such electronic executions shall be conclusive evidence
of
such party’s intent to execute such document, shall be binding on such party and
that the other party hereto (in addition to each other third party thereto,
if
any) is relying on the enforceability of such execution.
[SIGNATURES
COMMENCE ON THE FOLLOWING PAGE]
79
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.
UBS
REAL
ESTATE SECURITIES INC., Purchaser
By:_______________________________
Name:_____________________________
Title:______________________________
By:________________________________
Name:______________________________
Title:_______________________________
SUNTRUST
MORTGAGE, INC., Seller
By:________________________________
Name:______________________________
Title:_______________________________
80
EXHIBIT
A: [RESERVED]
A-1
EXHIBIT
B: CONTENTS OF MORTGAGE FILE
With
respect to each Mortgage Loan, the Mortgage File shall include each of the
following items, which shall be available for inspection by the Purchaser,
and
which shall be retained by the Seller in the Servicing File or delivered to
the
Purchaser or its designee pursuant to Sections 2.04 and 2.05 of the Amended
and
Restated Purchase, Warranties and Servicing Agreement.
1. The
original Mortgage Note endorsed “Pay to the order of _____, without recourse,”
and signed in the name of the Seller via original signature by an authorized
officer, with all intervening endorsements showing a complete chain of title
from the originator to the Seller, and all riders thereto. If the Mortgage
Loan
was acquired by the Seller in a merger, the endorsement must be by “[Seller],
successor by merger to the [name of predecessor]”. If the Mortgage Loan was
acquired or originated by the Seller while doing business under another name,
the endorsement must be by “[Seller] formerly known as [previous
name]”.
2. The
original Mortgage (including all riders thereto) with evidence of recording
thereon, or a copy thereof certified by the public recording office in which
such mortgage has been recorded or, if the original Mortgage has not been
returned from the applicable public recording office, a true certified copy,
certified by the Seller, of the original Mortgage together with a certificate
of
the Seller certifying that the original Mortgage has been delivered for
recording in the appropriate public recording office of the jurisdiction in
which the Mortgaged Property is located.
3. The
original or certified true copy or if in electronic form on the related Mortgage
Loan Schedule or the UBS Website, the certificate number of the related policy,
certified by the Seller, of the Primary Mortgage Insurance Policy, if
required.
4. The
original Assignment prepared in blank, or in accordance with Purchaser’s
instructions, which assignment shall, but for any blanks requested by Purchaser,
be in form and substance acceptable for recording. If the Mortgage Loan was
acquired or originated by the Seller while doing business under another name,
the Assignment must be by “[Seller] formerly known as [previous
name]”.
5. The
original policy of title insurance, including riders and endorsements thereto,
or if the policy has not yet been issued, a written commitment or interim binder
or preliminary report of title issued by the title insurance or escrow
company.
B-1
6. Originals
of all recorded intervening Assignments, or copies thereof, certified by the
public recording office in which such Assignments have been recorded showing
a
complete chain of title from the originator to the Seller, with evidence of
recording thereon, or a copy thereof certified by the public recording office
in
which such Assignment has been recorded or, if the original Assignment has
not
been returned from the applicable public recording office, a true certified
copy, certified by the Seller of the original Assignment together with a
certificate of the Seller certifying that the original Assignment has been
delivered for recording in the appropriate public recording office of the
jurisdiction in which the Mortgaged Property is located.
7. Originals,
or copies thereof certified by the public recording office in which such
documents have been recorded, of each assumption, extension, modification,
written assurance or substitution agreements, if applicable, or if the original
of such document has not been returned from the applicable public recording
office, a true certified copy, certified by the Seller, of such original
document together with certificate of Seller certifying the original of such
document has been delivered for recording in the appropriate recording office
of
the jurisdiction in which the Mortgage Property is located.
8. If
the
Mortgage Note or Mortgage or any other material document or instrument relating
to the Mortgage Loan has been signed by a person on behalf of the Mortgagor,
the
original power of attorney or other instrument that authorized and empowered
such person to sign bearing evidence that such instrument has been recorded,
if
so required in the appropriate jurisdiction where the Mortgaged Property is
located (or, in lieu thereof, a duplicate or conformed copy of such instrument,
together with a certificate of receipt from the recording office, certifying
that such copy represents a true and complete copy of the original and that
such
original has been or is currently submitted to be recorded in the appropriate
governmental recording office of the jurisdiction where the Mortgaged Property
is located), or if the original power of attorney or other such instrument
has
been delivered for recording in the appropriate public recording office of
the
jurisdiction in which the Mortgaged Property is located.
9. Mortgage
Loan closing statement (Form HUD-1) and any other truth-in-lending or real
estate settlement procedure forms required by law.
10. Residential
loan application.
11. Uniform
underwriter and transmittal summary (FNMA Form 1008) or reasonable
equivalent.
12. Credit
report on the mortgagor.
B-2
13. Business
credit report, if applicable.
14. Residential
appraisal report and attachments thereto.
15. The
original of any guarantee executed in connection with the Mortgage
Note.
16. Verification
of employment and income except for Mortgage Loans originated under a Limited
Documentation Program, all in accordance with Seller’s underwriting
guidelines.
17. Verification
of acceptable evidence of source and amount of down payment, in accordance
with
Seller’s underwriting guidelines.
18. Photograph
of the Mortgaged Property (may be part of appraisal).
19. Survey
of
the Mortgaged Property, if any.
20. Sales
contract, if applicable.
21. If
available, termite report, structural engineer’s report, water potability and
septic certification.
22. Any
original security agreement, chattel mortgage or equivalent executed in
connection with the Mortgage.
23. With
respect to each adjustable rate Mortgage Loan, a statement to the effect that
the Mortgagor has received all disclosure materials required by applicable
law
with respect to the making of adjustable rate Mortgage Loans.
B-3
EXHIBIT
C: CUSTODIAL ACCOUNT/ESCROW ACCOUNT LETTER AGREEMENTS
To:
(the
“Depository”)
As
“Seller” under the Amended and Restated Purchase, Warranties and
Servicing Agreement, dated as of _____, 200_, Whole Loan Series
________ (the “Agreement”), we hereby authorize and request you to
establish an account, as a Custodial Account pursuant to Section 4.04 of the
Agreement, to be designated as “____, in trust for the Purchaser, Owner of Whole
Loan Series _____.” 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.
By:
Name:
Title:
The
undersigned, as “Depository,” hereby certifies that the above described account
has been established under Account Number _______, at the office of the
depository indicated above, and agrees to honor withdrawals on such account
as
provided above.
(Name
of
Depository)
By:
Name:
Title:
C-1
To: _______________ I
(the
“Depository”)
As
“Seller” under the Amended and Restated Purchase, Warranties and
Servicing Agreement, dated as of ______, 200__, Whole Loan Series
____ (the “Agreement”), we hereby authorize and request you to establish an
account, as an Escrow Account pursuant to Section 4.06 of the Agreement, to
be
designated as “_____, in trust for the Purchaser, Owner of Whole Loan Series
____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.
By:
Name:
Title:
The
undersigned, as “Depository,” hereby certifies that the above described account
has been established under Account Number ______, at the office of the
depository indicated above, and agrees to honor withdrawals on such account
as
provided above.
(Name
of
Depository)
By:
Name:
Title:
C-2
EXHIBIT
D: UNDERWRITING GUIDELINES AS OF INITIAL CLOSING DATE
D-1
EXHIBIT
E: SELLER’S OFFICER’S CERTIFICATE
I,
___________________________ hereby certify that I am the duly elected
____________________ of [SELLER], a ___________________ (the “Seller”), and
further certify, on behalf of the Seller as follows:
1. Attached
hereto as Attachment I are a true and correct copy of the [Certificate of
Incorporation and by-laws] [Certificate of limited partnership and limited
partnership agreement] of the Seller as are in full force and effect on the
date
hereof.
2. No
proceedings looking toward merger, liquidation, dissolution or bankruptcy of
the
Seller are pending or contemplated.
3. Each
person who, as an officer or attorney-in-fact of the Seller, signed or
Electronically executed (a) the Amended and Restated Purchase, Warranties and
Servicing Agreement (the “Sale Agreement”), dated as of ______1, 200_, by and
between the Seller and ___________________ (the “Purchaser”); (b) the Purchase
Price and Terms Letter, dated ____________ 200_, between the Seller and the
Purchaser (the “Purchase Price and Terms Letter”) or an Assignment
and Conveyance on the UBS Website; and (c) any other document delivered prior
hereto or on the date hereof in connection with the sale and servicing of the
Mortgage Loans in accordance with the Sale Agreement and the Purchase Price
and
Terms Letter or the UBS Website Program was, at the respective times of such
signing and delivery, and is as of the date hereof, duly elected or appointed,
qualified and acting as such officer or attorney-in-fact, and the signatures
of
such persons appearing on such documents are their genuine
signatures.
4. Attached
hereto as Attachment II is a true and correct copy of the resolutions duly
adopted by the board of directors of the Seller on ____________, 200_ (the
“Resolutions”) with respect to the authorization and approval of the sale and
servicing of the Mortgage Loans; said Resolutions have not been amended,
modified, annulled or revoked and are in full force and effect on the date
hereof.
5. Attached
hereto as Attachment III is a Certificate of Good Standing of the Seller dated
________, 2002. No event has occurred since ____________, 2002 which has
affected the good standing of the Seller under the laws of the State of
____________.
6. All
of the representations and warranties of the Seller contained in Section 3.1
and
3.2 of the Sale Agreement were true and correct in all material respects as
of
the date of the Sale Agreement and are true and correct in all material respects
as of the date hereof.
E-1
7. The
Seller has performed all of its duties and has satisfied all the material
conditions on its part to be performed or satisfied prior to the Funding Date
pursuant to the Sale Agreement and the related Purchase Price and Terms Letter
or the UBS Website, as applicable.
All
capitalized terms used herein and not otherwise defined shall have the meaning
assigned to them in the Sale Agreement.
E-2
IN
WITNESS WHEREOF, I have hereunto signed my name and affixed the seal of the
Seller.
Dated: __________________________
[Seal]
[SELLER]
(Seller)
By: ____________________________________
Name: ____________________________________
Title: Vice
President
I,
__________________, Secretary of the Seller, hereby certify that
__________________ is the duly elected, qualified and acting Vice President
of
the Seller and that the signature appearing above is his genuine
signature.
IN
WITNESS WHEREOF, I have hereunto signed my name.
Dated: __________________________
[Seal]
[SELLER]
(Seller)
By: ___________________________________
Name: ___________________________________
Title: [Assistant]
Secretary
E-3
EXHIBIT
F: [FORM OF OPINION OF
COUNSEL TO THE SELLER]
___________________________________________
(Date)
[PURCHASER]
[ADDRESS]
|
|
Re:
|
Amended
and Restated Purchase, Warranties and Servicing Agreement, dated
as of
______ 1, 2002
|
Gentlemen:
I
have
acted as counsel to [SELLER],
a
(the “Seller”), in connection with the sale of certain loans by the Seller to
_____________________ (“the “Purchaser”) pursuant to (I) a Amended and Restated
Purchase, Warranties and Servicing Agreement, dated as of ______, 2002, between
the Seller and the Purchaser (the “Sale Agreement”) [and the Purchase Price and
Terms Letter, dated , 2002, between the Seller and the Purchaser (the “Purchase
Price and Terms Letter”)] [the UBS Website Program]. Capitalized
terms not otherwise defined herein have the meanings set forth in the Sale
Agreement.
In
connection with rendering this opinion letter, I, or attorneys working under
my
direction have examined, among other things, originals, certified copies or
copies otherwise identified to my satisfaction as being true copies of the
following:
|
A.
|
The
Sale Agreement;
|
|
B.
|
|
[The
Purchase Price and Terms Letter] [the UBS Website
Program];
|
|
C.
|
The
Seller’s [Certificate of Incorporation and by-laws] [certificate of
limited partnership and limited partnership agreement], as amended
to
date; and
|
|
D.
|
Resolutions
adopted by the Board of Directors of the Seller with specific reference
to
actions relating to the transactions covered by this opinion (the
“Board
Resolutions”).
|
F-1
For
the
purpose of rendering this opinion, I have made such documentary, factual and
legal examinations as I deemed necessary under the circumstances. As to factual
matters, I have relied upon statements, certificates and other assurances of
public officials and of officers and other representatives of the Seller, and
upon such other certificates as I deemed appropriate, which factual matters
have
not been independently established or verified by me. I have also assumed,
among
other things, the genuineness of all signatures, the legal capacity of all
natural persons, the authenticity of all documents submitted to me as originals,
and the conformity to original documents of all documents submitted to me as
copies and the authenticity of the originals of such copied
documents.
On
the
basis of and subject to the foregoing examination, and in reliance thereon,
and
subject to the assumptions, qualifications, exceptions and limitations expressed
herein, I am of the opinion that:
1. The
Seller has been duly [incorporated] [formed] and is validly existing and in
good
standing under the laws of the State of __________ with corporate power and
authority to own its properties and conduct its business as presently conducted
by it. The Seller has the corporate power and authority to service the Mortgage
Loans, and to execute, deliver, and perform its obligations under the Sale
Agreement [and the Purchase Price and Terms Letter] [and the UBS Website
Program] (sometimes collectively, the “Agreements”).
2. The
Sale Agreement [and the Purchase Price and Terms Letter] [and the UBS Website
Program] have been duly and validly authorized, executed and delivered by the
Seller.
3. The
Sale Agreement [and the Purchase Price and Terms Letter] [and the UBS Website
Program]constitute valid, legal and binding obligations of the Seller,
enforceable against the Seller in accordance with their respective
terms.
4. No
consent, approval, authorization or order of any state or federal court or
government agency or body is required for the execution, delivery and
performance by the Seller of the Sale Agreement [and the Purchase Price and
Terms Letter] [and the UBS Website Program], or the consummation of the
transactions contemplated by the Sale Agreement [and the Purchase Price and
Terms Letter] [and the UBS Website Program], except for those consents,
approvals, authorizations or orders which previously have been
obtained.
F-2
5. Neither
the servicing of the Mortgage Loans by the Seller as provided in the Sale
Agreement [and the Purchase Price and Terms Letter,] [and the UBS Website
Program,] nor the fulfillment of the terns of or the consummation of any other
transactions contemplated in the Sale Agreement [and the Purchase Price and
Terms Letter] [and the UBS Website Program] will result in a breach of any
term
or provision of the [certificate of incorporation or by-laws] [certificate
of
limited partnership or limited partnership agreement] of the Seller, or, to
the
best of my knowledge, will conflict with, result in a breach or violation of,
or
constitute a default under, (I) the terms of any indenture or other agreement
or
instrument known to me to which the Seller is a party or by which it is bound,
(ii) any State of or federal statute or regulation applicable to the
Seller, or (iii) any order of any State of or federal court,
regulatory body, administrative agency or governmental body having jurisdiction
over the Seller, except in any such case where the default, breach or violation
would not have a material adverse effect on the Seller or its ability to perform
its obligations under the Sale Agreement.
6. There
is no action, suit, proceeding or investigation pending or, to the best of
my
knowledge, threatened against the Seller which, in my judgment, either in any
one instance or in the aggregate, would draw into question the validity of
the
Sale Agreement or which would be likely to impair materially the ability of
the
Seller to perform under the terms of the Sale Agreement.
7. The
sale of each Note and Mortgage or Pledge Agreement, as applicable, as and in
the
manner contemplated by the Sale Agreement is sufficient fully to transfer to
the
Purchaser all right, title and interest of the Seller thereto as noteholder
and
mortgagee.
The
opinions above are subject to the following additional assumptions, exceptions,
qualifications and limitations:
A. I
have
assumed that all parties to the Agreements other than the Seller have all
requisite power and authority to execute, deliver and perform their respective
obligations under each of the Agreements, and that the Agreements have been
duly
authorized by all necessary corporate action on the part of such parties, have
been executed and delivered by such parties and constitute the legal, valid
and
binding obligations of such parties.
B. My
opinion expressed in paragraphs 3 and 7 above is subject to the qualifications
that (I) the enforceability of the Agreements may be limited by the effect
of
laws relating to (1) bankruptcy, reorganization, insolvency, moratorium or
other
similar laws now or hereafter in effect relating to creditors’ rights generally,
including, without limitation, the effect of statutory or ether laws regarding
fraudulent conveyances or preferential transfers, and (2) general principles
of
equity upon the specific enforceability of any of the remedies, covenants or
other provisions of the Agreements and upon the availability of injunctive
relief or other equitable remedies and the application of principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) as such principles relate to, limit or affect the enforcement
of creditors’ rights generally and the discretion of the court before which any
proceeding for such enforcement may be brought; and (ii) I express no opinion
herein with respect to the validity, legality, binding effect or enforceability
of provisions for indemnification in the Agreements to the extent such
provisions may be held to be unenforceable as contrary to public
policy.
F-3
C. I
have
assumed, without independent check or certification, that there are no
agreements or understandings among the Seller, the Purchaser and any other
party
which would expand, modify or otherwise affect the terms of the documents
described herein or the respective rights or obligations of the parties
thereunder.
I
am
admitted to practice in the State of ________________ and
I render no opinion herein as to matters involving the laws of any jurisdiction
other than the State of and the Federal laws of the United States of
America.
Very
truly yours,
F-4
EXHIBIT
G: SECURITY RELEASE
CERTIFICATION
|
1.
|
Release
of
Security Interest
|
__________________________,
hereby relinquishes any and all right, title and interest it may have in and
to
the Mortgage Loans described in Exhibit A attached hereto upon purchase thereof
by [PURCHASER] from the Seller named below pursuant to that certain Amended
and
Restated Purchase, Warranties and Servicing Agreement, dated as of ________
1,
2002, as of the date and time of receipt by of $ for such Mortgage
Loans (the “Date and Time of Sale”), and certifies that all notes, mortgages,
assignments and other documents in its possession relating to such Mortgage
Loans have been delivered and released to the Seller named below or its
designees as of the Date and Time of Sale.
Name
and
Address of Financial Institution
______________________________
(Name)
______________________________
(Address)
By: ______________________________
G-1
II. Certification
of Release
The
Seller named below hereby certifies to [PURCHASER] that, as of the Date and
Time
of Sale of the above mentioned Mortgage Loans to [PURCHASER], the security
interests in the Mortgage Loans released by the above named corporation comprise
all security interests relating to or affecting any and all such Mortgage Loans.
The Seller warrants that, as of such time, there are and will be no other
security interests affecting any or all of such Mortgage Loans.
_____________________________________Seller
By:______________________________________
Name:____________________________________
Title:_____________________________________
G-2
EXHIBIT
H1: ASSIGNMENT AND CONVEYANCE
On
this
___ day of _________, 200_, [Seller] (“Company”) as the Seller under that
certain Seller’s Amended and Restated Purchase, Warranties and Servicing
Agreement, dated as of ____________, __, 2002 (the “Agreement”) does hereby
sell, transfer, assign, set over and convey to UBS Warburg Real Estate
Investments Inc. as Purchaser under the Agreement, without recourse, but subject
to the terms of the Agreement, all rights, title and interest of the Company
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 the Agreement, the Company
has delivered to the Purchaser or its designee the documents for each Mortgage
Loan to be purchased as set forth in the Agreement. The contents of each related
Servicing File required to be retained by the Company to service the Mortgage
Loans pursuant to the Agreement and thus not delivered to the Purchaser are
and
shall be held in trust by the Company for the benefit of the Purchaser as the
owner thereof. The Company’s possession of any portion of each such Servicing
File is at the will of the Purchaser for the sole purpose of facilitating
servicing of the related Mortgage Loan pursuant to the Agreement, and such
retention and possession by the Company shall be in a custodial capacity only.
The ownership of each Mortgage Note, Mortgage, and the contents of the Mortgage
File and Servicing File is vested in the Purchaser and the ownership of all
records and documents with respect to the related Mortgage Loan prepared by
or
which come into the possession of the Company shall immediately vest in the
Purchaser and shall be retained and maintained, in trust, by the Company at
the
will of the Purchaser in such custodial capacity only.
The
Company confirms to the Purchaser that the representation and warranties set
forth in Sections 3.01 and 3.02 of the Agreement are true and correct as of
the
date hereof, and that all statements made in the Company’s Officer’s
Certificates and all attachments thereto remain complete, true and correct
in
all respects as of the date hereof, and with respect to this Mortgage Loan
Package, the Company makes the following additional representations and
warranties to the Purchaser, which additional representations and warranties
are
hereby incorporated into Section 3.02 of the Agreement:
LOAN
TYPE: [ADJUSTABLE][FIXED]
RATE
Cut-off
Date:
______________
Number
of Mortgage
Loans:
_____
Original
Principal
Balance:
$____________
H1-1
Stated
Principal
Balance:
$____________
Weighted
Average Mortgage Interest
Rate:
____%
Weighted
Average Servicing Fee
Rate:
____%
Weighted
Average Mortgage
Loan
Remittance
Rate:
____%
Weighted
Average
LTV:
____%
Weighted
Average Remaining
Months
to
Maturity:
___ months
[For
Adjustable Rate Mortgage
Loans:
Type: ______
Index: ______
Weighted
Average Gross
Margin:
____%
Weighted
Average Months to
Next
Adjustment
Date:
___ months]
Capitalized
terms used herein and not otherwise defined shall have the meanings set forth
in
the Agreement.
[Seller]
(Company)
By: ________________________________
Name:______________________________
Title:_______________________________
H1-2
EXHIBIT
H2: ASSIGNMENT AND CONVEYANCE
On
this
[DATE], [SELLER] (“Seller”) as the Seller under that certain Seller’s Amended
and Restated Purchase, Warranties and Servicing Agreement, dated as of [Month]
1, 2004 (the “Agreement”), does hereby sell, transfer, assign, set over and
convey to UBS Real Estate Securities 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 2.07 of the Agreement, the Seller has
delivered to the custodian the documents for each Mortgage Loan to be purchased
as set forth in the Agreement. The contents of each related Servicing
File required to be retained by the Seller to service the Mortgage Loans
pursuant to the Agreement and thus not delivered to the Purchaser are and shall
be held in trust by the Seller for the benefit of the Purchaser as the owner
thereof. The Seller’s possession of any portion of each such
Servicing File is at the will of the Purchaser for the sole purpose of
facilitating servicing of the related Mortgage Loan pursuant to the Agreement,
and such retention and possession by the Seller shall be in a custodial capacity
only. The ownership of each Note, Mortgage, and the contents of the
Mortgage File and Servicing File is vested in the Purchaser and the ownership
of
all records and documents with respect to the related Mortgage Loan prepared
by
or which come into the possession of the Seller shall immediately vest in the
Purchaser and shall be retained and maintained, in trust, by the Seller at
the
will of the Purchaser in such custodial capacity only.
The
Seller confirms to the Purchaser that the representation and warranties set
forth in Sections 3.01 and 3.02 of the Agreement are true and correct as of
the
date hereof, and that all statements made in the Seller’s Officer’s Certificates
and all attachments thereto remain complete, true and correct in all respects
as
of the date hereof. Capitalized terms used herein and not otherwise
defined shall have the meanings set forth in the Agreement.
H2-1
EXHIBIT
I: FORM CERTIFICATION TO BE PROVIDED BY THE SERVICER
I,
[identify the certifying individual], certify to ________________________,
and
its officers, directors, agents and affiliates, and with the knowledge and
intent that they will rely upon this certification, that:
1. Based
on my knowledge, the information in the Annual Statement of Compliance, the
Annual Independent Public Accountant’s Servicing Report and all servicing
reports, officer’s certificates and other information relating to the servicing
of the Mortgage Loans submitted to the Master Servicer taken as a whole, does
not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements made, in light of the circumstances under
which such statements were made, not misleading as of the date of this
certification;
2. The
servicing information required to be provided to the Master Servicer by the
Seller under the Servicing Agreement has been provided to the Master
Servicer;
3. I
am responsible for reviewing the activities performed by the Seller under the
Servicing Agreement and based upon the review required by the Servicing
Agreement, and except as disclosed in the Annual Statement of Compliance or
the
Annual Independent Public Accountant’s Servicing Report, the Seller has, as of
the date of this certification fulfilled its obligation under the Servicing
Agreement; and
4. I
have disclosed to the Master Servicer all significant deficiencies relating
to
the Seller’s compliance with the minimum servicing standards in accordance with
a review conducted in compliance with the Uniform Single Attestation Program
for
Mortgage Bankers of similar standard as set forth in the Servicing
Agreement.
Capitalized
terms used but not defined herein have the meanings ascribed to them in the
Amended and Restated Purchase, Warranties and Servicing Agreement, dated as
of
December 1, 2004 (the “Servicing Agreement”), between Suntrust Mortgage Inc. and
UBS Real Estate Securities Inc.
SUNTRUST
MORTGAGE INC.
By:____________________________
Name:
Title:
Date:
I-1
AMENDMENT
NUMBER ONE
to
the
AMENDED
AND RESTATED PURCHASE, WARRANTIES AND SERVICING AGREEMENT
dated
as
of December 1, 2004
between
UBS
REAL
ESTATE SECURITIES INC.
and
SUNTRUST
MORTGAGE, INC.
This
AMENDMENT NUMBER ONE is made this
1st day of
July, 2005, by and between SunTrust Mortgage, Inc. (the “Seller”) and UBS
Real Estate Securities Inc. (the “Purchaser”), to the Amended and
Restated Purchase, Warranties and Servicing Agreement, dated as of December
1,
2004, by and between the Seller and the Purchaser (the
“Agreement”).
RECITALS
WHEREAS,
the Seller and the Purchaser
have agreed to amend the Agreement as set forth herein.
NOW
THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
and
for the mutual covenants herein contained, the parties hereto hereby agree
as
follows:
SECTION
1. Amendments.
(a) The
third paragraph of the Agreement is hereby amended by adding the words “and
second” between the words “first” and “lien”.
(b) Section
1.01 of the Agreement is hereby amended by adding the following definitions
in
alphabetical order:
Combined
Loan-to-Value Ratio: With respect to any Mortgage Loan, the fraction,
expressed as a percentage, the numerator of which is the sum of (a) the original
principal balance of the Mortgage Loan, plus (b) the unpaid principal balance
of
any related subordinate mortgage loan or loans secured by the Mortgaged
Property, and the denominator of which is the Appraised Value of the related
Mortgaged Property.
First
Lien: With respect to each Mortgaged Property, the lien of the mortgage,
deed of
trust or other instrument securing a Mortgage Note which creates a first
lien on
the Mortgaged Property.
Amendment
Number One (UBS-SunTrust)
Second
Lien: With respect to each Mortgaged Property, the lien of the mortgage,
deed of
trust or other instrument securing a Mortgage Note which creates a second
lien
on the Mortgaged Property.
Second
Lien Mortgage Loan: A Mortgage Loan secured by the lien on the Mortgaged
Property, subject to one prior lien on such Mortgaged Property securing
financing obtained by the related Mortgagor.
Standard
& Poor’s: Standard & Poor’s Rating Services, a division of
The XxXxxx-Xxxx Companies Inc., and its successors in interest.
(c) Section
1.01 of the Agreement is hereby amended by adding the following sentence
to the
end of the definition of the term “Custodial Account”:
Such
accounts shall be held as a special deposit by the depository institution
maintaining the related accounts in a fiduciary capacity, separate and apart
from its funds or general assets and shall not be held in any capacity that
would create a debtor-creditor relationship between the depository institution
maintaining the accounts and the Seller or the Purchaser.
(d) Section
1.01 of the Agreement is hereby amended by adding the words “second” between the
words “or” and “lien” to the definition of the term “Mortgage”.
(e) Section
1.01 of the Agreement is hereby amended by adding the words “LTV and Combined”
between the words “the” and “Loan-To-Value” to subsection (7) of the definition
of the term “Mortgage Loan Schedule”.
(f) Section
1.01 of the Agreement is amended by deleting the period at the end of subsection
(38) of the definition of the term “Mortgage Loan Schedule”, replacing such
period with a semicolon and adding the following subsections at the end
thereto:
(39)
a code indicating if the Mortgage Loan is an interest-only Mortgage Loan
(including any Mortgage Loans with any interest-only features) and, if so,
the
term of the interest-only period of such Mortgage Loan; and
(40)
a code indicating whether the Mortgaged Property is subject to a First Lien
or a
Second Lien.
(g) Section
2.02 of the Agreement is hereby amended by adding the following after the
first
sentence of the second paragraph thereto:
Further,
the Seller shall pay to the Purchaser the costs and fees expected to be
associated with the recording of an Assignment with respect to each Mortgage
Loan (such amount may be set forth in the related Purchase Price and
Terms Letter or UBS Website).
Amendment
Number One (UBS-SunTrust)
(h) Section
2.07 of the Agreement is hereby amended by adding the following words at
the end
of the text of third paragraph thereof and before the period at the end of
such
paragraph:
(it
being understood that any cure period set forth in Section 3.03 shall be
deemed
to have expired)
(i) Section
3.02 of the Agreement is hereby amended by deleting subsection (b) and replacing
it in its entirety with the following:
(b) The
Mortgage creates a first lien and first priority ownership interest, or,
with
respect to a Mortgage Loan identified on the related Mortgage Loan Schedule
as a
Second Lien Mortgage Loan, a second lien and second priority ownership interest,
in either case, in an estate in fee simple in real property securing the
related
Mortgage Note;
(j) Section
3.02 of the Agreement is hereby amended by deleting subsection (e) and replacing
it in its entirety with the following:
(h) The
terms of the Mortgage Note and the Mortgage have not been impaired, waived,
altered or modified in any respect, except by written instruments, recorded
in
the applicable public recording office if necessary to maintain the lien
priority of the Mortgage, and which have been delivered to the Purchaser’s
custodian; the substance of any such waiver, alteration or modification has
been
approved by the insurer under the Primary Insurance Policy, if any, and the
title insurer, to the extent required by the related policy, and is reflected
on
the related Mortgage Loan Schedule or the UBS Website, as
applicable. No instrument of waiver, alteration or modification has
been executed, and no Mortgagor has been released, in whole or in part, except
in connection with an assumption agreement approved by the insurer under
the
Primary Insurance Policy, if any, and the title insurer, to the extent required
by the policy, and which assumption agreement has been delivered to the
Custodian and the terms of which are reflected in the related Mortgage Loan
Schedule or the UBS Website, as applicable. With respect to each
Second Lien Mortgage Loan (a) the related first lien is in full force and
effect, (b) there is no default, breach, violation or event of acceleration
existing under the related first lien mortgage or the mortgage note related
to
such first lien mortgage, (c) either no consent for the Loan is required
by the
holder of the first lien or such consent has been obtained and is contained
in
the Mortgage File, (d) no event which, with the passage of time or with notice
and the expiration of any grace or cure period, would constitute a default,
breach, violation or event of acceleration under the related first lien mortgage
loan, and either (1) the related first lien mortgage contains a provision
which
allows or (2) applicable law requires, the mortgagee under the Second Lien
Mortgage Loan to receive notice of, and affords such mortgagee an opportunity
to
cure any default by payment in full or otherwise under the related first
lien
mortgage;
Amendment
Number One (UBS-SunTrust)
(k) Section
3.02 of the Agreement is hereby amended by deleting the period at the end
of
subsection (i), replacing such period with a semicolon and adding the following
at the end of thereof:
With
respect to each Second Lien Mortgage Loan (i) the related first lien is in
full
force and effect, (ii) there is no default, breach, violation or event of
acceleration existing under the related first lien mortgage or the mortgage
note
related to such first lien mortgage, (iii) either no consent for the Mortgage
Loan is required by the holder of the first lien or such consent has been
obtained and is contained in the Mortgage File, (iv) no event which, with
the
passage of time or with notice and the expiration of any grace or cure period,
would constitute a default, breach, violation or event of acceleration under
the
related first lien mortgage loan, and either (A) the related first lien mortgage
contains a provision which allows or (B) applicable law requires, the mortgagee
under the Second Lien Mortgage Loan to receive notice of, and affords such
mortgagee an opportunity to cure any default by payment in full or otherwise
under the related first lien mortgage;
(l) Section
3.02 of the Agreement is hereby amended by deleting subsection (j) and replacing
it in its entirety with the following:
(j) The
related Mortgage is a valid, subsisting, enforceable and perfected first
or
second lien on the Mortgaged Property including all buildings on the Mortgaged
Property and all installations and mechanical, electrical, plumbing, heating
and
air conditioning systems affixed to such buildings, and all additions,
alterations and replacements made at any time with respect to the foregoing
securing the Mortgage Note’s original principal balance. The Mortgage
and the Mortgage Note do not contain any evidence of any security interest
or
other interest or right thereto. Such lien is free and clear of all
adverse claims, liens and encumbrances having priority over the first lien
of
the Mortgage subject only to (1) the lien of non-delinquent current real
property taxes and assessments not yet due and payable, (2) covenants,
conditions and restrictions, rights of way, easements and other matters of
the
public record as of the date of recording which are acceptable to mortgage
lending institutions generally and either (A) which are referred to 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, (3) other matters to which like properties are
commonly subject which do not materially interfere with the benefits of the
security intended to be provided by the Mortgage or the use, enjoyment, value
or
marketability of the related Mortgaged Property, and (4) if the Mortgage
Loan is
a Second Lien Mortgage Loan, a first priority lien on the Mortgaged
Property. Any security agreement, chattel mortgage or equivalent
document related to and delivered in connection with the Mortgage Loan
establishes and creates a valid, subsisting, enforceable and perfected first
lien and first priority, or with respect to Second Lien Mortgage Loans, second
lien and second priority, security interest and on the property described
therein, and the Seller has the full right to sell and assign the same to
the
Purchaser. The Mortgaged Property was not, as of the date of
origination of the Mortgage Loan, subject to a mortgage, deed of trust, deed
to
secure debt or other security instrument creating a lien subordinate to the
lien
of the Mortgage, unless otherwise disclosed on the Mortgage Loan Schedule
or the
UBS Website, as applicable;
Amendment
Number One (UBS-SunTrust)
(m) Section
3.02 of the Agreement is hereby amended by deleting subsection (m) and replacing
it in its entirety with the following:
(m) Each
Mortgage Loan is covered by an ALTA lender’s title insurance policy issued by a
title insurer acceptable to Xxxxxx Xxx or Xxxxxxx Mac and qualified to do
business in the jurisdiction where the Mortgaged Property is located, insuring
(subject to the exceptions contained in (j)(1), (2), (3) and (4) above) the
Seller, its successors and assigns, as to (i) the first priority lien of
the
Mortgage or (ii) with respect to a Second Lien Mortgage Loan, the second
priority lien of the Mortgage, in either case, in the original principal
amount
of the Mortgage Loan and, with respect to each Adjustable Rate Mortgage Loan,
against any loss by reason of the invalidity or unenforceability of the lien
resulting from the provisions of the Mortgage providing for adjustment in
the
Mortgage Interest Rate and Monthly Payment. Additionally, such policy
affirmatively insures ingress and egress to and from the Mortgaged
Property. Where required by applicable state law or regulation, the
Mortgagor has been given the opportunity to choose the carrier of the required
mortgage title insurance. The Seller, its successors and assigns, are
the sole insureds 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 and the related Purchase
Price and Terms Letter. No claims have been made under such lender’s
title insurance policy, and no prior holder of the related Mortgage, including
the Seller, has done, by act or omission, anything which would impair the
coverage of such lender’s title insurance policy;
(n) Section
3.02 of the Agreement is hereby amended by deleting the period at the end
of
subsection (w), replacing such period with a semicolon and adding the following
at the end of thereof:
(other
than the first lien mortgage loan related to any Second Lien Mortgage
Loan);
(o) Section
3.02 of the Agreement is hereby amended by deleting subsection (aa) and
replacing it in its entirety with the following:
(aa) The
Mortgage Loans are either fixed or adjustable rate mortgage loans. The Mortgage
Loans have an original term to maturity of not more than thirty (30) years,
with
interest payable in arrears on the first day of each month. Each Mortgage
Note
is payable in equal monthly installments of principal and interest, which
installments of interest, with respect to adjustable rate Mortgage Loans,
are
subject to change due to the adjustments to the Mortgage Interest Rate on
each
Interest Rate Adjustment Date, with interest calculated and payable in arrears,
sufficient to amortize the Mortgage Loan fully by the stated maturity date
(other than during the interest-only period with respect to a Mortgage Loan
identified on the related Mortgage Loan Schedule or UBS Website as an
interest-only Mortgage Loan), over an original term of not more than thirty
years from commencement of amortization. The Mortgage Interest Rate is adjusted,
with respect to adjustable rate Mortgage Loans, on each Interest Rate Adjustment
Date to equal the Index plus the Gross Margin (rounded up or down to the
nearest
.125%), subject to the Mortgage Interest Rate Cap, the Initial Mortgage Interest
Rate Cap, the Maximum Mortgage Interest Rate and the Minimum Mortgage Interest
Rate. The weighted average Mortgage Interest Rate is as set forth on the
description of pool characteristics for the Mortgage Loans in the Purchase
Price
and Terms Letter and as set forth in the related Mortgage Loan Schedule,
or on
the UBS Website, as applicable. With respect to each Mortgage Loan
identified on the Mortgage Loan Schedule as an interest-only Mortgage Loan,
the
interest-only period does not exceed ten (10) years (or such lesser period
specified on the Mortgage Loan Schedule or UBS Website) and following the
expiration of such interest-only period, the remaining Monthly Payments shall
be
sufficient to fully amortize the original principal balance over the remaining
term of the Mortgage Loan. No Mortgage Loan contains terms or
provisions which would result in negative amortization. With respect
to each Second Lien Mortgage Loan, (i) the related first lien does not provide
for negative amortization;
Amendment
Number One (UBS-SunTrust)
(p) Section
3.02 of the Agreement is hereby amended by adding the words “or CLTV” between
the words “Ratio” and “greater” to subsection (dd) thereof.
(q) Section
3.02 of the Agreement is hereby amended by adding the words “(or with respect to
a Second Lien Mortgage Loan, second lien priority)” between the words “priority”
and “by” in the second sentence of subsection (qq).
(r) Section
3.02 of the Agreement is hereby amended by deleting the fourth sentence
of subsection (ww) and replacing it with the following:
(ww) Any
such Prepayment Penalty is permissible and enforceable in accordance with
its
terms upon the Mortgagor’s full and voluntary principal prepayment under
applicable law, except to the extent that: the enforceability thereof may
be
limited by bankruptcy, insolvency, moratorium, receivership and other similar
laws relating to creditors' rights; the collectability thereof may be limited
due to acceleration in connection with a foreclosure or other involuntary
prepayment; or subsequent changes in applicable law may limit or prohibit
enforceability thereof under applicable law.
(s) Section
3.02 of the Agreement is hereby amended by adding the words “unemployment,
property, mortgage,” between the words “disability,” and “accident” to
subsection (eee) thereof.
(t) Section
3.02 of the Agreement is hereby amended by deleting the two references to
“Massachusetts House Xxxx 4880 (2004)” in subsection (eee) thereof and replacing
such with the words “the Massachusetts General Laws Chapter 183, Section
28C”;
Amendment
Number One (UBS-SunTrust)
(u) Section
3.02 of the Agreement is further amended by deleting the period at the end
of
subsection (ppp), replacing such period with a semicolon and adding the
following subsections at the end thereof:
(qqq) With
respect to each Mortgage Loan that is secured in whole or in part by the
interest of the mortgagor as a lessee under a ground lease of the related
Mortgaged Property (a “Ground Lease”) and not by a fee interest in such
Mortgaged Property:
a. The
mortgagor is the owner of a valid and subsisting interest as tenant under
the
Ground Lease;
b. The
Ground Lease is in full force and effect, unmodified and not supplemented
by any
writing or otherwise;
c. The
mortgagor is not in default under any of the terms thereof and there are
no
circumstances which, with the passage of time or the giving of notice or
both,
would constitute an event of default thereunder;
d. The
lessor under the Ground Lease is not in default under any of the terms or
provisions thereof on the part of the lessor to be observed or
performed;
e. The
term of the Ground Lease exceeds the maturity date of the related Mortgage
Loan
by at least ten years;
f. The
Ground Lease or a memorandum thereof has been recorded and by its terms permits
the leasehold estate to be mortgaged. The Ground Lease grants any
leasehold mortgagee standard protection necessary to protect the security
of a
leasehold mortgagee;
g. The
Ground Lease does not contain any default provisions that could give rise
to
forfeiture or termination of the Ground Lease except for the non-payment
of the
Ground Lease rents;
h. The
execution, delivery and performance of the Mortgage do not require the consent
(other than those consents which have been obtained and are in full force
and
effect) under, and will not contravene any provision of or cause a default
under, the Ground Lease; and
i. The
Ground Lease provides that the leasehold can be transferred, mortgaged and
sublet an unlimited number of times either without restriction or on payment
of
a reasonable fee and delivery of reasonable documentation to the
lessor.
Amendment
Number One (UBS-SunTrust)
(rrr) The
Mortgage Loan was originated by the Seller or by a savings and loan association,
a savings bank, a commercial bank, a credit union, an insurance company,
or
similar institution which is supervised and examined by a federal or state
authority, or by a mortgagee approved by the Secretary of HUD pursuant to
Sections 203 and 211 of the National Housing Act;
(sss) With
respect to each Second Lien Mortgage Loan, the related first lien does not
provide for negative amortization; and
(ttt) With
respect to any Second Lien Mortgage Loan: (i) where required or permitted
by
statute in the jurisdiction in which the Mortgaged Property is located, the
Seller has filed for record a request for notice of any action by the senior
lienholder under the related first lien, where the failure to comply permits
the
senior lender to exercise its rights against the Mortgaged Property without
notice to the junior lien of record; or (ii) the Purchaser or successor holder
will receive timely notice of any action by the second lienholder.
(v) Section
3.03 of the Agreement is further amended by inserting “(nn),” between “3.02” and
“(xx)” in the last sentence of the first paragraph thereof.
(w) Section
8.02 of the Agreement is hereby amended by adding the words “and second” between
the words “first” and “lien” to subpart (ii) thereof.
(x) Section
9.01 of the Agreement is hereby amended by adding the words “and second” between
the words “first” and “lien” to part (viii) thereof.
(y) Section
9.01 of the Agreement is hereby amended by adding the words “and second” between
the words “first” and “lien” to part (viii) thereof.
(z) Exhibit
B of the Agreement is hereby amended by deleting the period at the end of
the
second-numbered paragraph thereof, replacing such period with a semicolon
and
adding the following sentence at the end of such paragraph:
provided,
however, the Seller shall cause such original Mortgage to be delivered to
the
Purchaser or its designee promptly upon return from the appropriate public
recording office and in no event later than 180 days following the related
Closing Date pursuant to Section 6.03 of the Agreement.
(aa) Exhibit
B of the Agreement is hereby amended by deleting the period at the end of
the
fifth-numbered paragraph thereof, replacing such period with a semicolon
and
adding the following sentence at the end of such paragraph:
and,
in
any event, an original mortgagee title insurance policy shall be delivered
to
the Purchaser or its designee promptly upon issuance thereof and not later
than
180 days following the related Closing Date pursuant to Section 2.07 of the
Agreement.
Amendment
Number One (UBS-SunTrust)
(bb) Exhibit
B of the Agreement is hereby amended by deleting the period at the end of
the
eighth-numbered paragraph thereof, replacing such period with a semicolon
and
adding the following sentence at the end of such paragraph:
provided,
however, the Seller shall cause such original Mortgage to be delivered to
the
Purchaser or its designee promptly upon return from the appropriate public
recording office and in no event later than 180 days following the related
Closing Date pursuant to Section 2.07 of the Agreement.
(cc) Exhibit
C of the Agreement is hereby amended by adding the following sentence between
the first and second sentences thereof:
Such
account shall be a special deposit, which shall be segregated and held by
you
maintaining such account in a fiduciary capacity, separate and apart from
your
own funds and general assets and that the account shall not be held in any
capacity that would create a debtor-creditor relationship between you and
[Seller] or UBS Real Estate Securities Inc.
SECTION
2. Defined
Terms. Any terms capitalized but not otherwise defined herein
shall have the respective meanings set forth in the Agreement.
SECTION
3. Governing
Law. THIS AMENDMENT NUMBER ONE SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE NEW
YORK
GENERAL OBLIGATIONS LAW) AND THE OBLIGATIONS, RIGHTS, AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS WITHOUT
REGARD TO CONFLICT OF LAWS DOCTRINE APPLIED IN SUCH STATE (OTHER THAN SECTION
5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
SECTION
4. Counterparts. This
Amendment Number One may be executed by each of the parties hereto on any
number
of separate counterparts, each of which shall be an original and all of which
taken together shall constitute one and the same instrument.
SECTION
5. Limited Effect. Except
as amended hereby, the Agreement shall continue in full force and effect
in
accordance with its terms. Reference to this Amendment Number One
need not be made in the Agreement or any other instrument or document executed
in connection therewith, or in any certificate, letter or communication issued
or made pursuant to, or with respect to, the Agreement, any reference in
any of
such items to the Agreement being sufficient to refer to the Agreement as
amended hereby.
[SIGNATURE
PAGE FOLLOWS]
Amendment
Number One (UBS-SunTrust)
IN
WITNESS WHEREOF, the Seller and the
Purchaser have caused this Amendment Number One to be executed and delivered
by
their duly authorized officers as of the day and year first above
written.
SUNTRUST
MORTGAGE, INC.
By:_______________________________
Name:
Title:
UBS
REAL ESTATE SECURITIES
INC.
By:_______________________________
Name:
Title:
By:_______________________________
Name:
Title:
Amendment
Number One (UBS-SunTrust)
AMENDMENT
NUMBER TWO
to
the
AMENDED
AND RESTATED PURCHASE, WARRANTIES AND SERVICING AGREEMENT
dated
as
of December 1, 2004
between
UBS
REAL
ESTATE SECURITIES INC.
and
SUNTRUST
MORTGAGE, INC.
This
AMENDMENT NUMBER TWO is made this
28th day of
February, 2006, by and between SunTrust Mortgage, Inc. (the “Seller”) and
UBS Real Estate Securities Inc. (the “Purchaser”), to the Amended and
Restated Purchase, Warranties and Servicing Agreement, dated as of December
1,
2004, by and between the Seller and the Purchaser (the
“Agreement”).
RECITALS
WHEREAS,
the Seller and the Purchaser
have agreed to amend the Agreement as set forth herein.
NOW
THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
and
for the mutual covenants herein contained, the parties hereto hereby agree
as
follows:
SECTION
1. Amendments.
(a) Section
1.01 of Agreement is hereby amended by adding the following definitions in
alphabetical order:
Commission: The
United States Securities and Exchange Commission.
Depositor: With
respect to any Securitization Transaction, the person identified in writing
to
the Seller by the Purchaser as the depositor for such transaction.
Exchange
Act: The Securities Exchange Act of 1934, as amended.
Master
Servicer: With respect to any Securitization Transaction, the “master
servicer,” if any, identified in the related transaction documents.
Qualified
Correspondent: Any Person from which the Seller purchased Mortgage
Loans, provided that the following conditions are satisfied: (i) such
Mortgage Loans were originated pursuant to an agreement between the Seller
and
such Person that contemplated that such Person would underwrite mortgage loans
from time to time, for sale to the Seller, in accordance with underwriting
guidelines designated by the Seller (“Designated Guidelines”) or guidelines that
do not vary materially from such Designated Guidelines; (ii) such Mortgage
Loans
were in fact underwritten as described in clause (i) above and were acquired
by
the Seller within 180 days after origination; (iii) either (x) the Designated
Guidelines were, at the time such Mortgage Loans were originated, used by the
Seller in origination of mortgage loans of the same type as the Mortgage Loans
for the Seller’s own account or (y) the Designated Guidelines were, at the time
such Mortgage Loans were underwritten, designated by the Seller on a consistent
basis for use by lenders in originating mortgage loans to be purchased by the
Seller; and (iv) the Seller employed, at the time such Mortgage Loans were
acquired by the Seller, pre-purchase or post-purchase quality assurance
procedures (which may involve, among other things, review of a sample of
mortgage loans purchased during a particular time period or through particular
channels) designed to ensure that Persons from which it purchased mortgage
loans
properly applied the underwriting criteria designated by the
Seller.
Regulation
AB: Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17
C.F.R. §§229.1100-229.1123, as such may be amended from time to time, and
subject to such clarification and interpretation as have been provided by the
Commission in the adopting release (Asset-Backed Securities, Securities Act
Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff
of the Commission, or as may be provided by the Commission or its staff from
time to time.
Securities
Act: The Securities Act of 1933, as amended.
Securitization
Transaction: Any transaction involving either (1) a sale or other
transfer of some or all of the Mortgage Loans directly or indirectly by the
Purchaser to an issuing entity in connection with an issuance of publicly
offered or privately placed, rated or unrated mortgage-backed securities or
(2)
an issuance of publicly offered or privately placed, rated or unrated
securities, the payments on which are determined primarily by reference to
one
or more portfolios of residential mortgage loans consisting, in whole or in
part, of some or all of the Mortgage Loans.
Seller
Information: As defined in Section 12.07(a).
Servicer: As
defined in Section 12.03(c).
Servicing
Criteria: The “servicing criteria” set forth in Item 1122(d) of
Regulation AB, for which the Seller is responsible in its capacity as Servicer
and as identified on Exhibit K hereto.
1
Static
Pool Information: Static pool information as described in Item
1105(a)(1)-(3) and 1105(c) of Regulation AB.
Subcontractor: Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of Mortgage Loans but performs one or more
discrete functions identified in Item 1122(d) of Regulation AB with respect
to
Mortgage Loans under the direction or authority of the Seller or a
Subservicer.
Third-Party
Originator: Each Person, other than a Qualified Correspondent, that
originated Mortgage Loans acquired by the Seller.
Whole
Loan Transfer: Any sale or transfer by the Purchaser of some or all
of the Mortgage Loans, other than a Securitization Transaction.
(b) Section
1.01 of Agreement is hereby amended by deleting the definition of
“Reconstitution” in its entirety and replacing it with the
following:
Reconstitution: Any
Securitization Transaction or Whole Loan Transfer.
(c) Section
1.01 of Agreement is hereby amended by deleting the definition of “Subservicer”
in its entirety and replacing it with the following:
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
identified in Item 1122(d) of Regulation AB that are required to be performed
by
the Seller under this Agreement or any Reconstitution Agreement.
(d) Section
6.04(C) of Agreement is hereby amended by deleting the words “Pass-Through
Transfer or other securitization transaction” in the first sentence thereof and
replacing them with the words “Securitization Transaction”.
(e) Section
11.17 of Agreement is hereby amended by deleting the first sentence thereof
and
replacing it with the following:
“The
Seller and the Purchaser agree that with respect to some or all of the Mortgage
Loans, on or after the Closing Date, on one or more dates (each a
“Reconstitution Date”) at the Purchaser’s sole option, the Purchaser may effect
a Reconstitution of some or all of the Mortgage Loans then subject to this
Agreement, without recourse.”
2
(f) Section
11.17 of Agreement is hereby amended by deleting each of every occurrence of
the
words “Pass-Through Transfer” therein and replacing them, in each case, with the
words “Securitization Transaction”.
(g) The
Agreement is hereby amended by adding the following Article XII immediately
following Article XI:
ARTICLE
XII
COMPLIANCE
WITH REGULATION AB
Section
12.01 Intent of the Parties;
Reasonableness.
The
Purchaser and the Seller acknowledge and agree that the purpose of Article
XII
of this Agreement is to facilitate compliance by the Purchaser, any Master
Servicer and any Depositor with the provisions of Regulation AB and related
rules and regulations of the Commission. Although Regulation AB is
applicable by its terms only to offerings of asset-backed securities that are
registered under the Securities Act, the Seller acknowledges that investors
in
privately offered securities may require that the Purchaser, any Master Servicer
or any Depositor provide comparable disclosure in unregistered
offerings. References in this Agreement to compliance with Regulation
AB include provision of comparable disclosure in private offerings.
Neither
the Purchaser nor any Depositor shall exercise its right to request delivery
of
information or other performance under these provisions other than in good
faith, or for purposes other than compliance with the Securities Act, the
Exchange Act and, in each case, the rules and regulations of the Commission
thereunder (or the provision in a private offering of disclosure comparable
to
that required under the Securities Act) and the Xxxxxxxx-Xxxxx
Act. The Seller acknowledges that interpretations of the requirements
of Regulation AB may change over time, whether due to interpretive guidance
provided by the Commission or its staff, consensus among participants in the
asset-backed securities markets, advice of counsel, or otherwise, and agrees
to
comply with reasonable requests made by the Purchaser, any Master Servicer
or
any Depositor in good faith for delivery of information under these provisions
on the basis of established and evolving interpretations of Regulation
AB. In connection with any Securitization Transaction, the Seller
shall cooperate fully with the Purchaser and any Master Servicer to deliver
to
the Purchaser (including any of its assignees or designees), any Master Servicer
and any Depositor, any and all statements, reports, certifications, records
and
any other information necessary in the good faith determination of the
Purchaser, any Master Servicer or any Depositor to permit the Purchaser, such
Master Servicer or such Depositor to comply with the provisions of Regulation
AB, together with such disclosures relating to the Seller, any Subservicer,
any
Third-Party Originator and the Mortgage Loans, or the servicing of the Mortgage
Loans, reasonably believed by the Purchaser or any Depositor to be necessary
in
order to effect such compliance.
3
The
Purchaser (including any of its assignees or designees) shall cooperate with
the
Seller by providing timely notice of requests for information under these
provisions and by reasonably limiting such requests to information required,
in
the Purchaser’s reasonable judgment, to comply with Regulation AB.
For
the
purposes of this Article XII, any notice or request that must be “in writing” or
“written” may be made by electronic mail.
|
|
Section
12.02
|
Additional
Representations and Warranties of the
Seller.
|
(a) The
Seller shall be deemed to represent to the Purchaser, to any Master Servicer
and
to any Depositor, as of the date on which information is first provided to
the
Purchaser, any Master Servicer or any Depositor under Section 12.03 that, except
as disclosed in writing to the Purchaser, such Master Servicer or such Depositor
prior to such date: (i) the Seller is not aware and has not received
notice that any default, early amortization or other performance triggering
event has occurred as to any other securitization due to any act or failure
to
act of the Seller; (ii) the Seller has not been terminated as servicer in a
residential mortgage loan securitization, either due to a servicing default
or
to application of a servicing performance test or trigger; (iii) no material
noncompliance with the applicable Servicing Criteria with respect to other
securitizations of residential mortgage loans involving the Seller as servicer
has been disclosed or reported by the Seller; (iv) no material changes to the
Seller’s policies or procedures with respect to the servicing function it will
perform under this Agreement and any Reconstitution Agreement for mortgage
loans
of a type similar to the Mortgage Loans have occurred during the three-year
period immediately preceding the related Securitization Transaction; (v) there
are no aspects of the Seller’s financial condition that are reasonably expected
to have a material adverse effect on the performance by the Seller of its
servicing obligations under this Agreement or any Reconstitution Agreement;
(vi)
there are no material legal or governmental proceedings pending (or known to
be
contemplated) against the Seller, any Subservicer or any Third-Party Originator;
and (vii) there are no affiliations, relationships or transactions relating
to
the Seller, any Subservicer or any Third-Party Originator with respect to any
Securitization Transaction and any party thereto identified in writing to the
Seller by the related Depositor of a type described in Item 1119 of Regulation
AB.
4
(b) If
so requested by the Purchaser , any Master Servicer or any Depositor on any
date
following the date on which information is first provided to the Purchaser,
any
Master Servicer or any Depositor under Section 12.03, the Seller shall, within
five Business Days following such request, confirm in writing the accuracy
of
the representations and warranties set forth in paragraph (a) of this Section
or, if any such representation and warranty is not accurate as of the date
of
such request, provide reasonably adequate disclosure of the pertinent facts,
in
writing, to the requesting party.
Section
12.03. Information to Be Provided by the
Seller.
In
connection with any Securitization Transaction the Seller shall (i) within
five
Business Days following request by the Purchaser or any Depositor, provide
to
the Purchaser and such Depositor (or, as applicable, cause each Third-Party
Originator and each Subservicer to provide), in writing and in form and
substance reasonably satisfactory to the Purchaser and such Depositor, the
information and materials specified in paragraphs (a), (b), (c) and (g) of
this
Section, and (ii) as promptly as practicable following notice to or discovery
by
the Seller, provide to the Purchaser and any Depositor (in writing and in form
and substance reasonably satisfactory to the Purchaser and such Depositor)
the
information specified in paragraph (d) of this Section.
(a) If
so requested by the Purchaser or any Depositor, the Seller shall provide such
information regarding (i) the Seller, as originator of the Mortgage Loans
(including as an acquirer of Mortgage Loans from a Qualified Correspondent),
or
(ii) each Third-Party Originator, and (iii) as applicable, each Subservicer,
as
is reasonably requested for the purpose of compliance with Items 1103(a)(1),
1105, 1110, 1117 and 1119 of Regulation AB. Such information may
include, if applicable:
(A) the
originator’s form of organization;
(B) a
description of the originator’s origination program and how long the originator
has been engaged in originating residential mortgage loans, which description
shall include a discussion of the originator’s experience in originating
mortgage loans of a similar type as the Mortgage Loans; information regarding
the size and composition of the originator’s origination portfolio; and
information that may be material, in the good faith judgment of the Purchaser
or
any Depositor, to an analysis of the performance of the Mortgage Loans,
including the originators’ credit-granting or underwriting criteria for mortgage
loans of similar type(s) as the Mortgage Loans and such other information as
the
Purchaser or any Depositor may reasonably request for the purpose of compliance
with Item 1110(b)(2) of Regulation AB;
5
(C) a
description of any material legal or governmental proceedings pending (or known
to be contemplated) against the Seller, each Third-Party Originator and each
Subservicer; and
(D) a
description of any affiliation or relationship between the Seller, each
Third-Party Originator, each Subservicer and any of the following parties to
a
Securitization Transaction, as such parties are identified to the Seller by
the
Purchaser or any Depositor in writing in advance of such Securitization
Transaction:
(1) the
sponsor;
(2) the
depositor;
(3) the
issuing entity;
(4) any
servicer;
(5) any
trustee;
(6) any
originator;
(7) any
significant obligor;
(8) any
enhancement or support provider; and
(9) any
other material transaction party.
(b) If
so requested by the Purchaser or any Depositor, the Seller shall provide (or,
as
applicable, cause each Third-Party Originator to provide) Static Pool
Information with respect to the mortgage loans (of a similar type as the
Mortgage Loans, as reasonably identified by the Purchaser as provided below)
originated by (i) the Seller, if the Seller is an originator of Mortgage Loans
(including as an acquirer of Mortgage Loans from a Qualified Correspondent),
and/or (ii) each Third-Party Originator. Such Static Pool Information
shall be prepared by the Seller (or Third-Party Originator) on the basis of
its
reasonable, good faith interpretation of the requirements of Item 1105(a)(1)-(3)
of Regulation AB, which good faith interpretations shall not be inconsistent
with what is customarily determined by originators of Mortgage Loans to be
required pursuant to Item 1105(a)(1)-(3) of Regulation AB. To the
extent that there is reasonably available to the Seller (or Third-Party
Originator) Static Pool Information with respect to more than one mortgage
loan
type, the Purchaser or any Depositor shall be entitled to specify whether some
or all of such information shall be provided pursuant to this
paragraph. The content of such Static Pool Information may be in the
form customarily provided by the Seller, and need not be customized for the
Purchaser or any Depositor. Such Static Pool Information for each
vintage origination year or prior securitized pool, as applicable, shall be
presented in increments no less frequently than quarterly over the life of
the
mortgage loans included in the vintage origination year or prior securitized
pool. The most recent periodic increment must be as of a date no
later than 135 days prior to the date of the prospectus or other offering
document in which the Static Pool Information is to be included or incorporated
by reference. The Static Pool Information shall be provided in an
electronic format that provides a permanent record of the information provided,
such as a portable document format (pdf) file, or other such electronic format
reasonably required by the Purchaser or the Depositor, as
applicable.
6
Promptly
following notice or discovery of a material error in Static Pool Information
provided pursuant to the immediately preceding paragraph (including an omission
to include therein information required to be provided pursuant to such
paragraph), the Seller shall provide corrected Static Pool Information to the
Purchaser or any Depositor, as applicable, in the same format in which Static
Pool Information was previously provided to such party by the
Seller.
If
so
requested by the Purchaser or any Depositor, the Seller shall provide (or,
as
applicable, cause each Third-Party Originator to provide), at the expense of
the
requesting party (to the extent of any additional incremental expense associated
with delivery pursuant to this Agreement), such statements and agreed-upon
procedures letters of certified public accountants reasonably acceptable to
the
Purchaser or Depositor, as applicable, pertaining to Static Pool Information
relating to prior securitized pools for securitizations closed on or after
January 1, 2006 or, in the case of Static Pool Information with respect to
the
Seller’s or Third-Party Originator’s originations or purchases, to calendar
months commencing January 1, 2006, as the Purchaser or such Depositor shall
reasonably request. Such statements and letters shall be addressed to
and be for the benefit of such parties as the Purchaser or such Depositor shall
designate, which may include, by way of example, any Sponsor, any Depositor
and
any broker dealer acting as underwriter, placement agent or initial purchaser
with respect to a Securitization Transaction. Any such statement or
letter may take the form of a standard, generally applicable document
accompanied by a reliance letter authorizing reliance by the addressees
designated by the Purchaser or such Depositor.
(c) If
so requested by the Purchaser or any Depositor, the Seller shall provide such
information regarding the Seller, as servicer of the Mortgage Loans, and each
Subservicer (each of the Seller and each Subservicer, for purposes of this
paragraph, a “Servicer”), as is reasonably requested for the purpose of
compliance with Items 1108, 1117 and 1119 of Regulation AB. Such
information may include, if applicable:
(A) the
Servicer’s form of organization;
7
(B) a
description of how long the Servicer has been servicing residential mortgage
loans; a general discussion of the Servicer’s experience in servicing assets of
any type as well as a more detailed discussion of the Servicer’s experience in,
and procedures for, the servicing function it will perform under this Agreement
and any Reconstitution Agreements; information regarding the size, composition
and growth of the Servicer’s portfolio of residential mortgage loans of a type
similar to the Mortgage Loans and information on factors related to the Servicer
that may be material, in the good faith judgment of the Purchaser or any
Depositor, to any analysis of the servicing of the Mortgage Loans or the related
asset-backed securities, as applicable, including, without
limitation:
(1) whether
any prior securitizations of mortgage loans of a type similar to the Mortgage
Loans involving the Servicer have defaulted or experienced an early amortization
or other performance triggering event because of servicing during the three-year
period immediately preceding the related Securitization
Transaction;
(2) the
extent of outsourcing the Servicer utilizes;
(3) whether
there has been previous disclosure of material noncompliance with the applicable
servicing criteria with respect to other securitizations of residential mortgage
loans involving the Servicer as a servicer during the three-year period
immediately preceding the related Securitization Transaction;
(4) whether
the Servicer has been terminated as servicer in a residential mortgage loan
securitization, either due to a servicing default or to application of a
servicing performance test or trigger; and
(5) such
other information as the Purchaser or any Depositor may reasonably request
for
the purpose of compliance with Item 1108(b)(2) of Regulation AB;
(C) a
description of any material changes during the three-year period immediately
preceding the related Securitization Transaction to the Servicer’s policies or
procedures with respect to the servicing function it will perform under this
Agreement and any Reconstitution Agreements for mortgage loans of a type similar
to the Mortgage Loans;
(D) information
regarding the Servicer’s financial condition, to the extent that there is a
material risk that an adverse financial event or circumstance involving the
Servicer could have a material adverse effect on the performance by the Seller
of its servicing obligations under this Agreement or any Reconstitution
Agreement;
8
(E) information
regarding advances made by the Servicer on the Mortgage Loans and the Servicer’s
overall servicing portfolio of residential mortgage loans for the three-year
period immediately preceding the related Securitization Transaction, which
may
be limited to a statement by an authorized officer of the Servicer to the effect
that the Servicer has made all advances required to be made on residential
mortgage loans serviced by it during such period, or, if such statement would
not be accurate, information regarding the percentage and type of advances
not
made as required, and the reasons for such failure to advance;
(F) a
description of the Servicer’s processes and procedures designed to address any
special or unique factors involved in servicing loans of a similar type as
the
Mortgage Loans;
(G) a
description of the Servicer’s processes for handling delinquencies, losses,
bankruptcies and recoveries, such as through liquidation of mortgaged
properties, sale of defaulted mortgage loans or workouts;
(H) information
as to how the Servicer defines or determines delinquencies and charge-offs,
including the effect of any grace period, re-aging, restructuring, partial
payments considered current or other practices with respect to delinquency
and
loss experience;
(I) a
description of any material legal or governmental proceedings pending (or known
to be contemplated) against the Servicer; and
(J) a
description of any affiliation or relationship between the Servicer and any
of
the following parties to a Securitization Transaction, as such parties are
identified to the Servicer by the Purchaser or any Depositor in writing in
advance of such Securitization Transaction:
(1) the
sponsor;
(2) the
depositor;
(3) the
issuing entity;
(4) any
servicer;
(5) any
trustee;
(6) any
originator;
9
(7) any
significant obligor;
(8) any
enhancement or support provider; and
(9) any
other material transaction party.
(d) For
the purpose of satisfying its reporting obligation under the Exchange Act with
respect to any class of asset-backed securities, the Seller shall (or shall
cause each Subservicer and Third-Party Originator to) (i) provide prompt notice
to the Purchaser, any Master Servicer and any Depositor in writing of (A) any
material litigation or governmental proceedings involving the Seller, any
Subservicer or any Third-Party Originator, (B) any affiliations or relationships
that develop following the closing date of a Securitization Transaction between
the Seller, any Subservicer or any Third-Party Originator and any of the parties
specified in clause (D) of paragraph (a) of this Section (and any other parties
identified in writing by the requesting party) with respect to such
Securitization Transaction, (C) any Event of Default under the terms of this
Agreement or any Reconstitution Agreement, (D) any merger, consolidation or
sale
of substantially all of the assets of the Seller, and (E) the Seller’s entry
into an agreement with a Subservicer or Subcontractor to perform or assist
in
the performance of any of the Seller’s obligations under this Agreement or any
Reconstitution Agreement and (ii) provide to the Purchaser and any Depositor
a
description of such proceedings, affiliations or relationships.
(e) As
a condition to the succession to the Seller or any Subservicer as servicer
or
subservicer under this Agreement or any Reconstitution Agreement by any Person
(i) into which the Seller or such Subservicer may be merged or consolidated,
or
(ii) which may be appointed as a successor to the Seller or any Subservicer,
the
Seller shall provide to the Purchaser and any Depositor, at least [15] calendar
days prior to the effective date of such succession or appointment, (x) written
notice to the Purchaser and any Depositor of such succession or appointment
and
(y) in writing and in form and substance reasonably satisfactory to the
Purchaser and such Depositor, all information reasonably requested by the
Purchaser or any Depositor in order to comply with its reporting obligation
under Item 6.02 of Form 8-K with respect to any class of asset-backed
securities.
(f) In
addition to such information as the Seller, as servicer, is obligated to provide
pursuant to other provisions of this Agreement, not later than ten days prior
to
the deadline for the filing of any distribution report on Form 10-D in respect
of any Securitization Transaction that includes any of the Mortgage Loans
serviced by the Seller or any Subservicer, the Seller or such Subservicer,
as
applicable, shall provide to the party responsible for filing such report
(including, if applicable, the Master Servicer) notice of the occurrence of
any
of the following events along with all information, data, and materials related
thereto as may be required to be included in the related distribution report
on
Form 10-D (as specified in the provisions of Regulation AB referenced
below):
10
(i) any
material modifications, extensions or waivers of pool asset terms, fees,
penalties or payments during the distribution period or that have cumulatively
become material over time (Item 1121(a)(11) of Regulation AB);
(ii) material
breaches of pool asset representations or warranties or transaction covenants
(Item 1121(a)(12) of Regulation AB); and
(iii) information
regarding new asset-backed securities issuances backed by the same pool assets,
any pool asset changes (such as, additions, substitutions or repurchases),
and
any material changes in origination, underwriting or other criteria for
acquisition or selection of pool assets (Item 1121(a)(14) of Regulation
AB).
(g) The
Seller shall provide to the Purchaser, any Master Servicer and any Depositor,
such additional information as such party 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 any Subservicer or the Seller or such Subservicer’s performance
hereunder.
Section
12.04 Servicer Compliance
Statement.
On
or
before March 5 of each calendar year, commencing in 2007, the Seller shall
deliver to the Purchaser, any Master Servicer and any Depositor a statement
of
compliance addressed to the Purchaser, such Master Servicer and such Depositor
and signed by an authorized officer of the Seller, to the effect that (i) a
review of the Seller’s activities during the immediately preceding calendar year
(or applicable portion thereof) and of its performance under this Agreement
and
any applicable Reconstitution Agreement during such period has been made under
such officer’s supervision, and (ii) to the best of such officer’s knowledge,
based on such review, the Seller has fulfilled all of its obligations under
this
Agreement and any applicable Reconstitution Agreement in all material respects
throughout such calendar year (or applicable portion thereof) or, if there
has
been a failure to fulfill any such obligation in any material respect,
specifically identifying each such failure known to such officer and the nature
and the status thereof.
11
Section
12.05 Report on Assessment of Compliance
and Attestation.
(a) On
or before March 5 of each calendar year, commencing in 2007, the Seller
shall:
(i) deliver
to the Purchaser, any Master Servicer and any Depositor a report (in form and
substance reasonably satisfactory to the Purchaser, such Master Servicer and
such Depositor) regarding the Seller’s assessment of compliance with the
Servicing Criteria during the immediately preceding calendar year, as required
under Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122 of Regulation
AB. Such report shall be addressed to the Purchaser, such Master
Servicer and such Depositor and signed by an authorized officer of the Seller,
and shall address each of the “Applicable Servicing Criteria” specified on
Exhibit K hereto;
(ii) deliver
to the Purchaser, any Master Servicer and any Depositor a report of a registered
public accounting firm reasonably acceptable to the Purchaser, such Master
Servicer and such Depositor that attests to, and reports on, the assessment
of
compliance made by the Seller and delivered pursuant to the preceding
paragraph. Such attestation shall be in accordance with Rules
1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act and the
Exchange Act;
(iii) cause
each Subservicer, and each Subcontractor determined by the Seller pursuant
to
Section 12.06(b) to be “participating in the servicing function” within the
meaning of Item 1122 of Regulation AB, to deliver to the Purchaser, any Master
Servicer and any Depositor an assessment of compliance and accountants’
attestation as and when provided in paragraphs (a) and (b) of this Section
and,
to the extent required of such Subservicer or such Subcontractor under Item
1123
of Regulation AB, an annual compliance certification as and when required under
Section 12. 04; and
(iv) if
requested by the Purchaser, any Master Servicer or any Depositor not later
than
February 1 of the calendar year in which such certification is to be delivered,
deliver, and cause each Subservicer and Subcontractor described in clause (iii)
above to deliver, to the Purchaser, any Depositor, any Master
Servicer and any other Person that will be responsible for signing the
certification (a “Sarbanes Certification”) required by Rules 13a-14(d) and
15d-14(d) under the Exchange Act (pursuant to Section 302 of the Xxxxxxxx-Xxxxx
Act of 2002) on behalf of an asset-backed issuer with respect to a
Securitization Transaction a certification, signed by the appropriate officer
of
the Seller, in the form attached hereto as Exhibit J.
None
of
the Purchaser, any Master Servicer nor any Depositor will request delivery
of a
certification under clause (a)(iv) above unless a Depositor or Master Servicer
is required under the Exchange Act to file an annual report on Form 10-K or
any
amendment thereto with respect to an issuing entity whose asset pool includes
Mortgage Loans.
12
The
Seller acknowledges that the parties identified in clause (a)(iv) above may
rely
on the certification provided by the Seller pursuant to such clause in signing
a
Sarbanes Certification and filing such with the Commission.
(b) Each
assessment of compliance provided by a Subservicer pursuant to Section
12.05(a)(i) shall address each of the Servicing Criteria specified on a
certification substantially in the form of Exhibit K hereto delivered to the
Purchaser concurrently with the execution of this Agreement or, in the case
of a
Subservicer subsequently appointed as such, on or prior to the date of such
appointment. An assessment of compliance provided by a Subcontractor
pursuant to Section 12.05(a)(iii) need not address any elements of the Servicing
Criteria other than those specified by the Seller pursuant to Section
12.06.
Section
12.06 Use of Subservicers and
Subcontractors.
The
Seller shall not hire or otherwise utilize the services of any Subservicer
to
fulfill any of the obligations of the Seller as servicer under this Agreement
or
any Reconstitution Agreement unless the Seller complies with the provisions
of
paragraph (a) of this Section. The Seller shall not hire or otherwise
utilize the services of any Subcontractor, and shall not authorize or knowingly
permit any Subservicer to hire or otherwise utilize the services of any
Subcontractor, to fulfill any of the obligations of the Seller as servicer
under
this Agreement or any Reconstitution Agreement unless the Seller complies with
the provisions of paragraph (b) of this Section.
(a) It
shall not be necessary for the Seller to seek the consent of the Purchaser,
any
Master Servicer or any Depositor to the utilization of any
Subservicer. The Seller shall cause any Subservicer used by the
Seller (or by any Subservicer) for the benefit of the Purchaser and any
Depositor to comply with the provisions of this Section and with Sections 12.02,
12.03(c), (e), (f) and (g), 12.04, 12.05 and 12.07 of this Agreement to the
same
extent as if such Subservicer were the Seller, and to provide the information
required with respect to such Subservicer under Section 12.03(d) of this
Agreement. The Seller shall be responsible for obtaining from each
Subservicer and delivering to the Purchaser and any Depositor any servicer
compliance statement required to be delivered by such Subservicer under Section
12.04, any assessment of compliance and attestation required to be delivered
by
such Subservicer under Section 12.05 and any certification required to be
delivered to the Person that will be responsible for signing the Sarbanes
Certification under Section 12.05 as and when required to be
delivered.
13
(b) It
shall not be necessary for the Seller to seek the consent of the Purchaser,
any
Master Servicer or any Depositor to the utilization of any
Subcontractor. The Seller shall promptly upon request provide to the
Purchaser, any Master Servicer and any Depositor (or any designee of the
Depositor, such as a master servicer or administrator) a written description
(in
form and substance satisfactory to the Purchaser, such Master Servicer and
such
Depositor) of the role and function of each Subcontractor utilized by the Seller
or any Subservicer, specifying (i) the identity of each such Subcontractor,
(ii)
each discrete function identified in Item 1122(d) of Regulation AB which is
being performed by each such Subcontractor, (iii) which (if any) of such
Subcontractors are “participating in the servicing function” within the meaning
of Item 1122 of Regulation AB as determined by the Seller in full compliance
with Regulation AB, and (iv) which elements of the Servicing Criteria will
be
addressed in assessments of compliance provided by each Subcontractor identified
pursuant to clause (iii) of this paragraph.
As
a
condition to the utilization of any Subcontractor determined to be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, the Seller shall cause any such Subcontractor used by the Seller
(or by any Subservicer) for the benefit of the Purchaser and any Depositor
to
comply with the provisions of Sections 12.05 and 12.07 of this Agreement to
the
same extent as if such Subcontractor were the Seller. The Seller
shall be responsible for obtaining from each Subcontractor and delivering to
the
Purchaser and any Depositor any assessment of compliance and attestation and
the
other certifications required to be delivered by such Subcontractor under
Section 12.05, in each case as and when required to be delivered.
Section
12.07 Indemnification;
Remedies.
(a) The
Seller shall indemnify the Purchaser, each affiliate of the Purchaser, and
each
of the following parties participating in a Securitization
Transaction: each sponsor and issuing entity; each Person (including,
but not limited to, any Master Servicer, if applicable) responsible for the
preparation, execution or filing of any report required to be filed with the
Commission with respect to such Securitization Transaction, or for execution
of
a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange
Act with respect to such Securitization Transaction; each broker dealer acting
as underwriter, placement agent or initial purchaser, each Person who controls
any of such parties or the Depositor (within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act); and the respective present
and former directors, officers, employees, agents and affiliates of each of
the
foregoing and of the Depositor (each, and “Indemnified Party”), and shall hold
each of them harmless from and against any claims, losses, damages, penalties,
fines, forfeitures, legal fees and expenses and related costs, judgments, and
any other costs, fees and expenses that any of them may sustain arising out
of
or based upon:
14
(i) (A)
any untrue statement of a material fact contained or alleged to be contained
in
any information, report, certification, date, accountants’ letter or other
material provided in written or electronic form under this Article XII by or
on
behalf of the Seller, or provided under this Article XII by or on behalf of
any
Subservicer, Subcontractor or Third-Party Originator (collectively, the “Seller
Information”), or (B) the omission or alleged omission to state in the Seller
Information a material fact required to be stated in the Seller Information
or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, by way
of
clarification, that clause (B) of this paragraph shall be construed solely
by
reference to the Seller Information and not to any other information
communicated in connection with a sale or purchase of securities, without regard
to whether the Seller Information or any portion thereof is presented together
with or separately from such other information;
(ii) any
breach by the Seller of its obligations under this Article XII, including
particularly any failure by the Seller, any Subservicer, any Subcontractor
or
any Third-Party Originator to deliver any information, report, certification,
accountants’ letter or other material when and as required under this Article
XII, including any failure by the Seller to identify pursuant to Section
12.06(b) any Subcontractor “participating in the servicing function” within the
meaning of Item 1122 of Regulation AB;
(iii) any
breach by the Seller of a representation or warranty set forth in Section
12.02(a) or in a writing furnished pursuant to Section 12.02(b) and made as
of a
date prior to the closing date of the related Securitization Transaction, to
the
extent that such breach is not cured by such closing date, or any breach by
the
Seller of a representation or warranty in a writing furnished pursuant to
Section 12.02(b) to the extent made as of a date subsequent to such closing
date; or
(iv) the
negligence, bad faith or willful misconduct of the Seller in connection with
its
performance under this Article XII.
15
If
the
indemnification provided for herein is unavailable or insufficient to hold
harmless an Indemnified Party, then the Company agrees that it shall contribute
to the amount paid or payable by such Indemnified Party as a result of any
claims, losses, damages or liabilities incurred by such Indemnified Party in
such proportion as is appropriate to reflect the relative fault of such
Indemnified Party on the one hand and the Company on the other.
In
the
case of any failure of performance described in clause (a)(ii) of this Section,
the Seller shall promptly reimburse the Purchaser, any Depositor, as applicable,
and each Person responsible for the preparation, execution or filing of any
report required to be filed with the Commission with respect to such
Securitization Transaction, or for execution of a certification pursuant to
Rule
13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to such
Securitization Transaction, for all costs reasonably incurred by each such
party
in order to obtain the information, report, certification, accountants’ letter
or other material not delivered as required by the Seller, any Subservicer,
any
Subcontractor or any Third-Party Originator.
This
indemnification shall survive the termination of this Agreement or the
termination of any party to this Agreement.
(b)(i) Any
failure by the Seller, any Subservicer, any Subcontractor or any Third-Party
Originator to deliver any information, report, certification, accountants’
letter or other material when and as required under this Article XII, or any
breach by the Seller of a representation or warranty set forth in Section
12.02(a) or in a writing furnished pursuant to Section 12.02(b) and made as
of a
date prior to the closing date of the related Securitization Transaction, to
the
extent that such breach is not cured by such closing date, or any breach by
the
Seller of a representation or warranty in a writing furnished pursuant to
Section 12.02(b) to the extent made as of a date subsequent to such closing
date, shall, except as provided in clause (ii) of this paragraph, immediately
and automatically, without notice or grace period, constitute an Event of
Default with respect to the Seller under this Agreement and any applicable
Reconstitution Agreement, and shall entitle the Purchaser, any Master Servicer
or any Depositor, as applicable, in its sole discretion to terminate the rights
and obligations of the Seller as servicer under this Agreement and/or any
applicable Reconstitution Agreement without payment (other than for payment
of
accrued fees and reimbursable expenses owed to the Seller thereunder at the
time
of such termination)(notwithstanding anything in this Agreement or any
applicable Reconstitution Agreement to the contrary) of any compensation to
the
Seller and if the Servicer is servicing any of the Mortgage Loans in a
Securitization Transaction, appoint a successor servicer reasonably acceptable
to any Master Servicer of such Securitization Transaction; provided that to
the
extent that any provision of this Agreement and/or any applicable Reconstitution
Agreement expressly provides for the survival of certain rights or obligations
following termination of the Seller as servicer, such provision shall be given
effect.
16
(ii) Any
failure by the Seller, any Subservicer or any Subcontractor to deliver any
information, report, certification or accountants’ letter when and as required
under Section 12.04 or 12.05, including (except as provided below) any failure
by the Seller to identify pursuant to Section 12.06(b) any Subcontractor
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, which continues unremedied for ten calendar days after the date
on which such information, report, certification or accountants’ letter was
required to be delivered shall constitute an Event of Default with respect
to
the Seller under this Agreement and any applicable Reconstitution Agreement,
and
shall entitle the Purchaser any Master Servicer or any Depositor, as applicable,
in its sole discretion to terminate the rights and obligations of the Seller
as
servicer under this Agreement and/or any applicable Reconstitution Agreement
without payment (other than for payment of accrued fees and reimbursable
expenses owed to the Seller thereunder at the time of such
termination)(notwithstanding anything in this Agreement to the contrary) of
any
compensation to the Seller; provided that to the extent that any provision
of
this Agreement and/or any applicable Reconstitution Agreement expressly provides
for the survival of certain rights or obligations following termination of
the
Seller as servicer, such provision shall be given effect.
None
of
the Purchaser, any Master Servicer nor any Depositor shall be entitled to
terminate the rights and obligations of the Seller pursuant to this subparagraph
(b)(ii) if a failure of the Seller to identify a Subcontractor “participating in
the servicing function” within the meaning of Item 1122 of Regulation AB was
attributable solely to the role or functions of such Subcontractor with respect
to mortgage loans other than the Mortgage Loans.
(iii) The
Seller shall promptly reimburse the Purchaser (or any designee of the Purchaser,
such as a master servicer) and any Depositor, as applicable, for all reasonable
expenses incurred by the Purchaser (or such designee) or such Depositor, as
such
are incurred, in connection with the termination of the Seller as servicer
and
the transfer of servicing of the Mortgage Loans to a successor
servicer. The provisions of this paragraph shall not limit whatever
rights the Purchaser or any Depositor may have under other provisions of this
Agreement and/or any applicable Reconstitution Agreement or otherwise, whether
in equity or at law, such as an action for damages, specific performance or
injunctive relief.
17
Section
12.08 Third Party Beneficiary.
For
purposes of this Article XII and any related provisions thereto, each Master
Servicer shall be considered a third-party beneficiary of this Agreement,
entitled to all the rights and benefits hereof as if it were a direct party
to
this Agreement.
(h) The
Agreement is hereby amended by adding a new Exhibit J in the form of Attachment
1 hereto.
(i) The
Agreement is hereby amended by adding a new Exhibit K in the form of Attachment
2 hereto.
SECTION
2. Defined Terms. Any terms
capitalized but not otherwise defined herein shall have the respective meanings
set forth in the Agreement.
SECTION
3. Governing Law. THIS
AMENDMENT NUMBER ONE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE
OF NEW YORK (INCLUDING SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW)
AND THE OBLIGATIONS, RIGHTS, AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO CONFLICT OF LAWS
DOCTRINE APPLIED IN SUCH STATE (OTHER THAN SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW).
SECTION
4. Counterparts. This Amendment
Number Two may be executed by each of the parties hereto on any number of
separate counterparts, each of which shall be an original and all of which
taken
together shall constitute one and the same instrument.
SECTION
5. Limited Effect. Except as
amended hereby, the Agreement shall continue in full force and effect in
accordance with its terms. Reference to this Amendment Number Two
need not be made in the Agreement or any other instrument or document executed
in connection therewith, or in any certificate, letter or communication issued
or made pursuant to, or with respect to, the Agreement, any reference in any
of
such items to the Agreement being sufficient to refer to the Agreement as
amended hereby.
[SIGNATURE
PAGE FOLLOWS]
18
IN
WITNESS WHEREOF, the Seller and the
Purchaser have caused this Amendment Number Two to be executed and delivered
by
their duly authorized officers as of the day and year first above
written.
SUNTRUST
MORTGAGE, INC.
By:_______________________________
Name:
Title:
UBS
REAL ESTATE SECURITIES
INC.
By:_______________________________
Name:
Title:
By:_______________________________
Name:
Title:
Amendment
Number Two (UBS-SunTrust)
ATTACHMENT
1
EXHIBIT
J
FORM
OF
ANNUAL CERTIFICATION
|
|
Re:
|
The
Amended and Restated Purchase, Warranties and Servicing Agreement
dated as
of December 1, 2004 (the “Agreement”), among UBS Real Estate Securities
Inc., as Purchaser and Suntrust Mortgage, Inc. (the “Company), as
Seller
|
I,
_____________________________________, the _______________________ of the
Company, certify to [the Purchaser], [the Depositor], and the [Master Servicer]
[Securities Administrator] [Trustee], and their officers, with the knowledge
and
intent that they will rely upon this certification, that:
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 (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 and identified as the
responsibility of the Company on Exhibit K to the Agreement (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
Amendment
Number Two (UBS-SunTrust)
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:
|
|
Amendment
Number Two (UBS-SunTrust)