Exhibit 99.11
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MORTGAGE SERVICING PURCHASE AND SALE AGREEMENT
XXXXXXX XXXXX MORTGAGE LENDING, INC.
(SELLER)
CITIMORTGAGE, INC.
(PURCHASER)
DATED AND EFFECTIVE AS OF MAY 31, 2006
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MORTGAGE SERVICING PURCHASE AND SALE AGREEMENT
This Mortgage Servicing Purchase and Sale Agreement (the "Agreement"),
dated as of May 31, 2006, is by and between XXXXXXX XXXXX MORTGAGE LENDING,
INC., a Delaware corporation, with offices located in New York, New York (the
"Seller"), and CITIMORTGAGE, INC., a New York corporation, with offices located
in St. Louis, Missouri (the "Purchaser").
WITNESSETH:
WHEREAS, Seller owns the Mortgage Loans (including the servicing rights)
listed in Exhibit A attached hereto;
WHEREAS, Purchaser desires to purchase and Seller desires to sell all
Seller's right, title and interest in and to the Servicing in accordance with
the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants made herein and
for other good and valuable consideration, the sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES
SECTION 1.01 DEFINITIONS.
Whenever used herein, the following words and phrases, unless the context
otherwise requires, shall have the following meanings:
Adjustable Rate Mortgage Loan: A Mortgage Loan which provides for the
adjustment of the Mortgage Interest Rate payable in respect thereto.
Adjustment Date: With respect to each Adjustable Rate Mortgage Loan, the
date set forth in the related Mortgage Note on which the Mortgage Interest Rate
on such Adjustable Rate Mortgage Loan is adjusted in accordance with the terms
of the related Mortgage Note.
Agency Transfer: The transfer or sale by Seller of some or all of the
Mortgage Loans to Xxxxxx Xxx or Xxxxxxx Mac.
Agreement: As defined in the first paragraph hereof.
Appraised Value: With respect to any Mortgaged Property, the lesser of (i)
the value thereof as determined by an appraisal made for the originator of the
Mortgage Loan at the time of origination of the Mortgage Loan by an appraiser
who met the minimum requirements of Xxxxxx Mae or Xxxxxxx Mac, and (ii) the
purchase price paid for the related Mortgaged Property
by the Mortgagor with the proceeds of the Mortgage Loan, provided, however, in
the case of a Refinanced Mortgage Loan, such value of the Mortgaged Property is
based solely upon the value determined by an appraisal made for the originator
of such Refinanced Mortgage Loan at the time of origination of such Refinanced
Mortgage Loan by an appraiser who met the minimum requirements of Xxxxxx Mae or
Xxxxxxx Mac.
Business Day: Any day other than (a) a Saturday or Sunday, or (b) a day on
which banking institutions in the States of New York, Missouri or Florida are
authorized or obligated by law or by executive order to be closed.
Citibank: Citibank (West), FSB or Citibank, N.A., their successors and
assigns.
Code: The Internal Revenue Code of 1986, or any successor statute thereto.
Commission: The United States Securities and Exchange Commission.
Custodial Account: As defined in Exhibit M.
Customary Servicing Procedures: Procedures (including collection
procedures) that Purchaser customarily employs and exercises in servicing and
administering mortgage loans for its own account and which are in accordance
with accepted mortgage servicing practices of prudent lending institutions.
Current Servicer: PHH Mortgage Corporation.
Delinquent Mortgage: Any Mortgage Loan that, as of the Transfer Date, is
either (a) ninety (90) days or more past due, (b) in bankruptcy and thirty (30)
days or more past due, (c) in foreclosure, or (d) in litigation, which
litigation may have, in Purchaser's reasonable judgment, an adverse effect on
the Mortgage Loan, the Servicing or the cost to service the Mortgage Loan. A
Mortgage Loan will be considered ninety (90) days past due when, for example,
the payment due on May 1, 2006 remains unpaid at the close of business on July
31, 2006.
Depositor: The depositor, as such term is defined in Regulation AB, with
respect to any Securitization Transaction.
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 Period: With respect to each Remittance Date, the period beginning on
the second day of the month preceding the month of the Remittance Date, and
ending on the first day of the month in which the Remittance Date occurs.
Eligible Account: Either (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company the
short-term unsecured debt obligations of which (or, in the case of a depository
institution or trust company that is the principal subsidiary
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of a holding company, the short-term unsecured debt obligations of such holding
company) are rated A-1 by Standard & Poor's Ratings Services or Prime-1 by
Xxxxx'x Investors Service (or a comparable rating if another rating agency is
specified by the Purchaser by written notice to the Seller) at the time any
amounts are held on deposit therein, (ii) an account or accounts the deposits in
which are fully insured by the FDIC or (iii) a trust account or accounts
maintained with a federal or state chartered depository institution or trust
company acting in its fiduciary capacity. Eligible Accounts may bear interest.
Escrow Account: The separate account or accounts created and maintained
pursuant to Exhibit M.
Escrow Payments: The amounts constituting ground rents, taxes,
assessments, water rates, mortgage insurance premiums, fire and hazard insurance
premiums and other payments required to be escrowed by the Mortgagor with the
mortgagee pursuant to any Mortgage Loan.
Event of Default: Any one of the conditions or circumstances enumerated in
Exhibit M.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Xxxxxx Xxx: The entity formerly known as the Federal National Mortgage
Association, or any successor thereto.
FARETS: First American Real Estate Tax Service, Inc.
FDIC: The Federal Deposit Insurance Corporation, or any successor thereto.
First American: First American Flood Data Services, Inc.
Xxxxxxx Mac: The entity formerly known as the Federal Home Loan Mortgage
Corporation.
HUD: The United Sates Department of Housing and Urban Development.
Interim Period: The period from the Sale Date to the Transfer Date.
Interim Servicing Agreement: The Interim Servicing Agreement in the form
of Exhibit I between Purchaser and Seller which provides for servicing of the
Mortgage Loans by the Current Servicer between the Sale Date and the Transfer
Date.
Investors: Means the owners of the Mortgage Loans, currently the Seller.
Letter of Intent: That certain letter agreement, dated March 7, 2006, by
and between Purchaser and Seller.
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Liquidation Proceeds: Cash (other than REO Disposition Proceeds) received
in connection with the liquidation of a defaulted Mortgage Loan, whether through
the sale or assignment of the Mortgage Loan, trustee's sale, foreclosure sale or
otherwise.
Loan-to-Value Ratio or LTV: With respect to any Mortgage Loan as of any
date of determination the ratio on such date of the outstanding principal amount
of the Mortgage Loan to the Appraised Value of the Mortgaged Property.
Master Servicer: With respect to any Securitization Transaction, the
"master servicer," if any, identified in the related transaction documents.
MERS: Mortgage Electronic Registration Systems, Inc.
MI: The default insurance provided by private mortgage insurance companies
on certain Mortgage Loans.
Monthly Payment: With respect to any Mortgage Loan, the scheduled combined
payment of principal and/or interest payable by a Mortgagor under the related
Mortgage Note on each Due Date (which may be interest only in accordance with
the Mortgage Note) which may be changed on any Adjustment Date as provided in
the related Mortgage Note.
Mortgage Interest Rate: With respect to each Mortgage Loan, the annual
rate at which interest accrues on such Mortgage Loan from time to time in
accordance with the provisions of the related Mortgage Note.
Mortgage Loan Remittance Rate: As to each Mortgage Loan, the annual rate
of interest payable to Seller, which shall be equal to the related Mortgage
Interest Rate minus the related Servicing Fee Rate.
Mortgage Loans: Each of those mortgage loans described in Exhibit A
hereto.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
Mortgaged Property: The Mortgagor's real property securing repayment of a
related Mortgage Note, consisting of a fee simple interest in a single parcel of
real property improved by a Residential Dwelling.
Mortgages: Each of those mortgages, deeds of trust, security deeds or
deeds to secure debt creating a lien on or an interest in real property securing
a Mortgage note and related to a Mortgage Loan.
Mortgagor: An obligor under a Mortgage Loan.
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Opinion of Counsel: A written opinion of counsel, who may be salaried
counsel for the Person on behalf of whom the opinion is being given, reasonably
acceptable to each Person to whom such opinion is addressed.
Optional Insurance: Any life, accidental death or accident and health
(disability) insurance purchased by Mortgagor in connection with a Mortgage
Loan.
Person: An individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Primary Insurance Policy: A policy of primary mortgage guaranty insurance
issued by a Qualified Insurer.
Prior Servicers: Each originator, owner or servicer of any of the Mortgage
Loans other than, and prior to, Seller or Current Servicer.
Purchase Price: As defined in Section 3.01(a).
Purchase Price Percentage: As set forth in the Letter of Intent.
Purchaser: CitiMortgage, Inc., its successors and assigns.
Qualified Insurer: Any insurer which meets the requirements of Xxxxxx Xxx
and Xxxxxxx Mac.
Rating Agencies: Fitch, Inc., Xxxxx'x Investors Service, Inc. and Standard
& Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc., or
their successors.
Reconstitution: Any Agency Transfer, Securitization Transaction or Whole
Loan Transfer.
Reconstitution Agreements: The agreement or agreements entered into by the
Seller and the Purchaser and/or certain third parties on the Reconstitution Date
or Dates with respect to any or all of the Mortgage Loans serviced hereunder, in
connection with a Reconstitution as provided in Article XI.
Reconstitution Date: The date or dates on which any or all of the Mortgage
Loans serviced under this Agreement shall be removed from this Agreement and
reconstituted as part of a Reconstitution pursuant to Article XI hereof.
Record Date: The close of business of the last Business Day of the month
preceding the month of the related Remittance Date.
Refinanced Mortgage Loan: A Mortgage Loan the proceeds of which were not
used to purchase the related Mortgaged Property.
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Regulation AB: Subpart 229.1100 - Asset Backed Securities (Regulation AB),
17 C.F.R. Sections 229.1100-229.1123, as such may be amended from time to time,
and subject to such clarification and interpretation as have been provided by
the Commission in the adopting release (Asset-Backed Securities, Securities Act
Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff
of the Commission, or as may be provided by the Commission or its staff from
time to time.
Related Escrow Accounts: Mortgage Loan escrow/impound accounts maintained
by Seller or the Current Servicer relating to the Servicing, including, but not
limited to, accounts for buydown funds, real estate taxes and MI, flood and
hazard insurance premiums.
REMIC: A "real estate mortgage investment conduit" within the meaning of
Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating to
REMICs, which appear in Sections 860A through 860G of the Code, and related
provisions, and proposed, temporary and final regulations and published rulings,
notices and announcements promulgated thereunder, as the foregoing may be in
effect from time to time.
Remittance Date: The eighteenth (18th) day of any month, beginning in July
18, 2006, or if such eighteenth (18th) day is not a Business Day, the first
Business Day immediately following such eighteenth (18th) day.
REO Property: A Mortgaged Property acquired as a result of the liquidation
of a Mortgage Loan.
Residential Dwelling: Any one of the following: (i) a one-family dwelling,
(ii) a two- to four-family dwelling, (iii) a one-family dwelling unit in a
Xxxxxx Xxx eligible condominium project, or (iv) a one-family dwelling in a
planned unit development, none of which is manufactured housing, a co-operative,
a commercial property, an agricultural property or a mixed use property.
Xxxxxxxx-Xxxxx Act: The Xxxxxxxx-Xxxxx Act of 2002, as amended from time
to time.
Sale Date: Close of business on May 31, 2006, or such other date as may be
mutually agreed to in writing by Seller and Purchaser.
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 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.
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Seller: Xxxxxxx Xxxxx Mortgage Lending Inc., its successors and assigns.
Servicer Information: As defined in Section 12.07(a)(i)(A).
Servicing: The collective reference to servicing of the Mortgage Loans.
Servicing Advances: All customary, reasonable and necessary out-of-pocket
costs and expenses incurred in the performance of servicing obligations,
including, but not limited to, the cost of (a) the inspection, preservation,
restoration and protection of the Mortgaged Property, (b) any enforcement or
judicial proceedings, including foreclosures, (c) the management and liquidation
of the Mortgaged Property if the Mortgaged Property is acquired in satisfaction
of the Mortgage and (d) compliance with the obligations under Exhibit M.
Servicing Criteria: The "servicing criteria" set forth in Item 1122(d) of
Regulation AB, as such may be amended from time to time.
Servicing Exhibit: Exhibit M under which the Purchaser will service the
loans for the Seller.
Servicing Fee: With respect to each Mortgage Loan, the amount of the
annual fee Seller shall pay to Purchaser, which shall, for each month, be equal
to one-twelfth of the product of (a) the Servicing Fee Rate and (b) the
outstanding principal balance of such Mortgage Loan. Such fee shall be payable
monthly, computed on the basis of the same principal amount and period
respecting which any related interest payment on a Mortgage Loan is computed.
The obligation of Purchaser to pay the Servicing Fee is limited to, and payable
solely from, the interest portion (including recoveries with respect to interest
from Liquidation Proceeds and other proceeds, to the extent permitted by Exhibit
M) of related Monthly Payments collected by Seller, or as otherwise provided
under Exhibit M.
Servicing Fee Rate: With respect to any Mortgage Loan, 00.25%, payable
monthly, in arrears.
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
Purchaser or a Subservicer.
Subservicer: Any Person that services Mortgage Loans on behalf of the
Purchaser or any Subservicer and is responsible for the performance (whether
directly or through Subservicers or Subcontractors) of a substantial portion of
the material servicing functions required to be performed by the Purchaser under
this Agreement or any Reconstitution Agreement that are identified in Item
1122(d) of Regulation AB.
Sub-Servicing Agreement: The written contract between the Purchaser and a
Subservicer relating to servicing and administration of certain Mortgage Loans
as provided in Servicing Exhibit.
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Transfer Date: Open of business on June 1, 2006, or such other date(s) as
may be mutually agreed to in writing by Seller and Purchaser.
Whole Loan Transfer: Any sale or transfer of some or all of the Mortgage
Loans, other than a Securitization Transaction or Agency Transfer.
SECTION 1.02 GENERAL INTERPRETIVE PRINCIPLES.
For purposes of this Agreement, except as otherwise expressly provided or
unless the context otherwise requires:
(a) the terms defined in this Agreement have the meanings assigned to
them in this Agreement and include the plural as well as the
singular, and the use of any gender herein shall be deemed to
include the other gender;
(b) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles;
(c) references herein to "Articles", "Sections", "Subsections",
"Paragraphs", and other subdivisions without reference to a document
are to designated Articles, Sections, Subsections, Paragraphs and
other subdivisions of this Agreement;
(d) a reference to a Subsection without further reference to a Section
is a reference to such Subsection as contained in the same Section
in which the reference appears, and this rule shall also apply to
Paragraphs and other subdivisions;
(e) the words "herein", "hereof", "hereunder" and other words of similar
import refer to this Agreement as a whole and not to any particular
provision; and
(f) the term "include" or "including" shall mean without limitation by
reason of enumeration.
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ARTICLE II
SALE AND TRANSFER OF SERVICING
SECTION 2.01 ITEMS TO BE SOLD.
Subject to, and upon the terms and conditions of this Agreement, Seller
shall, as hereinafter provided, sell, transfer, assign and deliver to Purchaser
all right, title and interest in and to the Servicing including the Related
Escrow Accounts.
SECTION 2.02 SALE DATE.
On the Sale Date:
(a) All indicia of legal ownership to the Servicing, including all legal
rights, obligations and duties with respect to the Servicing, shall
be transferred to Purchaser as provided herein;
(b) The following documents shall be exchanged between the parties:
(i) this Agreement, duly executed by each of the parties hereto;
and
(ii) the Interim Servicing Agreement, duly executed by each of the
parties hereto.
(c) Seller shall assign to Purchaser its rights to receive the servicing
fees and all incidental fees on the Mortgage Loans subject to the
Interim Servicing Agreement; and
(d) Purchaser shall pay to Seller the portion of the Purchase Price due
on the Sale Date.
SECTION 2.03 TRANSFER DATE.
On the Transfer Date:
(a) Purchaser shall assume all Servicing responsibilities, and Seller
and/or the Current Servicer shall cease all Servicing
responsibilities, related to the Mortgage Loans; and
(b) Seller shall assign to Purchaser all of Seller's right, title and
interest in and to the Mortgage Loans with respect to the Servicing
transferred.
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ARTICLE III
CONSIDERATION
SECTION 3.01 PURCHASE PRICE.
(a) In full consideration for the sale of the Servicing, and upon the
terms and conditions of this Agreement, Purchaser shall pay to
Seller a Purchase Price (the "Purchase Price") equal to the product
of (x) the actual outstanding principal balance of the Mortgage
Loans as of the Sale Date, less (i) the actual outstanding principal
balance of any Delinquent Mortgage (ii) the actual outstanding
principal balance, as of the Sale Date, of any loan which prepays in
full on or prior to June 30, 2006, (iii) the actual outstanding
principal balance of any Mortgage Loan that is removed from the sale
pursuant to Section 3.01(c) or by mutual agreement of Purchaser and
Seller prior to the Transfer Date, multiplied by (y) the Purchase
Price Percentage. The Purchase Price shall be reduced by (i) $900.00
for each Delinquent Mortgage that is actually transferred to
Purchaser on the Transfer Date and (ii) any cost or fee necessary to
establish with, or transfer to, Purchaser or its agents, any
bi-saver program feature.
(b) It is understood and agreed that if the principal balance of any
Mortgage Loan or any other information used in computing the amount
of the Purchase Price shall be found, within ninety (90) calendar
days after the Transfer Date, to have been incorrectly computed, the
Purchase Price shall be promptly and appropriately adjusted on the
basis of the calculation stated in Section 3.01(a).
(c) On or prior to the Transfer Date, Seller shall, at Seller's expense,
transfer to Purchaser full life of loan tax service contracts with
FARETS. The tax service contracts shall provide Purchaser with
complete tax procurement and payment services. Seller agrees to
provide to Purchaser, in an electronic format acceptable to
Purchaser, the information necessary to effectuate the establishment
of a tax service for all fifty (50) states.
(d) On or prior to the Transfer Date, Seller shall, at Seller's expense,
transfer to Purchaser full life of loan flood insurance
determination tracking services with First American at no cost to
Purchaser.
(e) No later than one (1) Business Day prior to the Sale Date, Seller
shall have completed and provided to Purchaser, the Estimated
Purchase Price Computation Worksheet, including the attachment
thereto, in the form of Exhibit B-1.
(f) No later than two (2) Business Days after the Transfer Date, Seller
shall complete and provide to Purchaser, the Purchase Price
Computation Worksheet, including the attachments thereto, in the
form of Exhibit B-2.
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SECTION 3.02 PAYMENT.
The Purchase Price shall be paid to Seller by wire transfer of immediately
available federal funds on the Sale Date; provided, however that if the
Servicing is not transferred to Purchaser on the Transfer Date and the
transaction is terminated, such funds shall be immediately returned to Purchaser
by wire transfer of immediately available federal funds, with interest
calculated at the overnight federal funds effective rate from the date payment
is received by Seller to the date payment is returned to Purchaser; the
estimated Purchase Price shall be determined by the parties at least one (1)
Business Day prior to the Sale Date based on information regarding the Mortgage
Loans in accordance with Exhibit B-1.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER
As an inducement to Purchaser to enter into this Agreement, Seller
represents and warrants to Purchaser as of the Sale Date and the Transfer Date
as follows:
SECTION 4.01 DUE INCORPORATION AND GOOD STANDING.
Seller is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. Seller is authorized to
transact business in each jurisdiction in which Seller transacts business,
except where the failure to be so qualified would not have a material adverse
effect on the Mortgage Loans or the Servicing.
SECTION 4.02 AUTHORITY AND CAPACITY.
Seller has all requisite power, authority and capacity, subject to
approvals required pursuant to Sections 7.02 and 7.03 hereof, to enter into this
Agreement and the Interim Servicing Agreement and to perform the obligations
required of it hereunder and thereunder. The execution and delivery of this
Agreement and the Interim Servicing Agreement, and the consummation of the
transactions contemplated hereby and thereby, have each been duly and validly
authorized by all necessary action. This Agreement and the Interim Servicing
Agreement constitute valid and legally binding agreements of Seller enforceable
in accordance with their respective terms, and no offset, counterclaim or
defense exists to the full performance by Seller of this Agreement and the
Interim Servicing Agreement, except as the same may be limited by bankruptcy,
insolvency, reorganization or other laws relating to or affecting the
enforcement of creditors' rights and by general equity principles.
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SECTION 4.03 TITLE TO THE SERVICING AND RELATED ESCROW ACCOUNTS.
Seller is the lawful owner of the Mortgage Loans and the respective
Servicing, is responsible for the maintenance of the Related Escrow Accounts
(which is performed on behalf of Seller by the Current Servicer), has the sole
right and authority, to transfer the Servicing as contemplated hereby, and is
not contractually obligated to sell or subcontract the Servicing to any other
party. The transfer, assignment and delivery of the Servicing and of the Related
Escrow Accounts shall vest in Purchaser all rights as servicer free and clear of
any and all claims, charges, defenses, offsets and encumbrances of any kind or
nature whatsoever.
SECTION 4.04 RELATED ESCROW ACCOUNTS.
All Related Escrow Accounts are being maintained in accordance with
applicable law and the terms of the related Mortgages and other Mortgage Loan
documents; and, except as to payments which are past due under Mortgage notes,
all balances required by the Mortgages or other Mortgage Loan documents and paid
to Seller for the account of the Mortgagors are on deposit in the appropriate
Related Escrow Account. Seller shall, or shall cause the Current Servicer to, in
accordance with the Interim Servicing Agreement, credit to the account of
Mortgagors all interest required by statute or the terms of the Mortgage or
other Mortgage Loan documents to be paid on any Related Escrow Account through
the Transfer Date. Evidence of such credit shall be provided to Purchaser.
SECTION 4.05 LITIGATION; COMPLIANCE WITH LAWS.
There is no litigation, proceeding or governmental investigation pending
or, to the best of Seller's knowledge, threatened, or any order, injunction or
decree outstanding which could have a material adverse effect upon any of the
Mortgage Loans, the Related Escrow Accounts or the Servicing nor does Seller
know of any basis for any such litigation, proceeding or governmental
investigation. Seller has not violated any applicable law, regulation,
ordinance, order, injunction or decree, or any other requirement of any
governmental body or court, which may materially affect any of the Mortgage
Loans or the Servicing.
SECTION 4.06 SERVICING OBLIGATIONS.
Seller, or the Current Servicer, has, in all material respects, performed
all obligations to be performed under terms of the Mortgage Loan and any MI
requirements and no event has occurred and is continuing which, but for the
passage of time or the giving of notice or both, would constitute an event of
default on the part of Seller or the Current Servicer thereunder.
SECTION 4.07 ACCURACY OF SERVICING INFORMATION.
The information provided by Seller, or its agents, to Purchaser in
accordance with Purchaser's due diligence of the Mortgage Loans, the Servicing,
this Agreement and the Interim Servicing Agreement is true and correct in all
material respects.
SECTION 4.08 EFFECTIVE AGREEMENTS.
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The execution, delivery and performance of this Agreement and the Interim
Servicing Agreement by Seller, its compliance with the terms hereof and thereof
and the consummation of the transactions contemplated hereby and thereby will
not violate, conflict with, result in a breach of, constitute a default under,
be prohibited by or require any additional approval under its certificate of
incorporation or bylaws, any instrument or agreement to which it is a party or
by which it is bound or which affects the Servicing, or any state or federal
law, rule or regulation or any judicial or administrative decree, order, ruling
or regulation applicable to it or to the Servicing.
SECTION 4.09 NO ACCRUED LIABILITIES.
There are no accrued liabilities of Seller with respect to the Mortgage
Loans or the Servicing or circumstances under which such accrued liabilities
will arise against Purchaser as successor to the Servicing, with respect to
occurrences prior to the Transfer Date.
SECTION 4.10 PRIOR SERVICERS.
(a) Each Prior Servicer was duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation or
organization.
(b) Each Prior Servicer was qualified to transact business in each
jurisdiction in which such qualification was deemed necessary.
(c) No Prior Servicer has violated any applicable law, regulation,
ordinance, order, injunction or decree, or any other requirement of
any governmental body or court, which may materially affect any of
the Mortgage Loans or the Servicing.
(d) All Prior Servicers have performed all obligations to be performed
under the Mortgage Loan and MI requirements, as applicable, and no
event has occurred and is continuing which, but for the passage of
time or the giving of notice or both, would constitute an event of
default thereunder.
SECTION 4.11 SELLER/SERVICER STANDING.
Current Servicer is an approved Xxxxxx Mae and Xxxxxxx Mac Seller/Servicer
in good standing with the requisite financial criteria and adequate resources to
complete the transactions contemplated hereby on the conditions stated herein.
SECTION 4.12 DISCLOSURE OF MORTGAGE LOAN ACCOUNT INFORMATION
Except as otherwise indicated in writing to Purchaser no later than five
(5) Business Days prior to the date of this Agreement, Seller has not, nor has
its affiliates, agents and/or subservicers, since the execution of the Letter of
Intent to purchase the Servicing, disclosed Mortgage Loan account-specific
information, including, but not limited to, names and addresses of Mortgagors,
to any third person or unaffiliated entity (other than the Current Servicer)
unless such disclosure was necessary to comply with applicable state or federal
law, rule or regulation, and/or applicable MI
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requirements. Notwithstanding the foregoing, any disclosure by Seller or its
affiliates or subsidiaries of Mortgage Loan account-specific information to
credit bureaus is governed by contracts that prohibit any person from directly
or indirectly using such information for solicitation of the Mortgagors for any
purposes, including, but not limited to, financial or insurance services or
products or prepayment of Mortgage Loans.
SECTION 4.13 SERVICING AGREEMENTS.
The Seller agrees the Mortgage Loans will be serviced by Purchaser in
accordance with Exhibit M.
SECTION 4.14 MERS MEMBERSHIP.
The Current Servicer is a member in good standing of the MERS system.
ARTICLE V
REPRESENTATIONS AND WARRANTIES AS TO MORTGAGE LOANS
As further inducement to Purchaser to enter into this Agreement, Seller
represents and warrants to Purchaser as of the Sale Date and the Transfer Date,
as applicable, with respect to each Mortgage Loan, as follows:
SECTION 5.01 MORTGAGE LOAN DOCUMENTS.
The Mortgage Loan documents are genuine, duly executed by a Mortgagor of
legal capacity, and all insertions in any Mortgage Loan document are correct.
Seller has no knowledge of any facts that would impair the validity or value of
the Mortgage note, the Mortgage, any other Mortgage Loan document or the
collateral. The Mortgage Loan documents listed on Exhibit D contain the entire
agreement between the parties to each Mortgage Loan. Each Mortgage Loan was
originated utilizing Xxxxxx Mae/Xxxxxxx Mac uniform documents or documents
acceptable to Xxxxxx Mae or Xxxxxxx Mac.
SECTION 5.02 UNPAID BALANCE.
The amount of the unpaid balance of each Mortgage Loan which is reflected
on Exhibit A is correct as of the date of Exhibit A and there are no defenses,
setoffs or counterclaims against any Mortgage Loan.
SECTION 5.03 SECURITY INTEREST.
The security interest granted by the Mortgagor in the property described
in the Mortgage is a valid lien on the property described therein.
SECTION 5.04 COMPLIANCE WITH LAWS.
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Each Mortgage Loan transaction complies in all material respects with the
applicable requirements of the federal or state laws or regulations that pertain
to the origination, closing and servicing of the Mortgage Loan.
SECTION 5.05 PAYMENT OF TAXES, INSURANCE PREMIUMS, ETC.
All real estate taxes, special government assessments, ground rents and
flood, hazard, MI insurance premiums with respect to all Mortgage Loans have
been paid prior to delinquency by Seller, the Current Servicer or Prior
Servicers or, if not escrowed, by Mortgagors.
SECTION 5.06 EFFECTIVE INSURANCE.
All flood, hazard and MI insurance policies remain in full force and
effect.
SECTION 5.07 REAL ESTATE TAX IDENTIFICATIONS.
All real estate tax identifications are legally sufficient. Tax
segregation, where required, has been completed.
SECTION 5.08 MORTGAGOR STATEMENTS.
All payoff and assumption statements with respect to each Mortgage Loan
provided by the Current Servicer to Mortgagors or their agents were complete and
accurate.
SECTION 5.09 INTEREST ON ESCROWS.
Seller or the Current Servicer has credited to the account of each
Mortgagor all interest required to be paid and all such interest accrued which
is due but not yet payable to a Mortgagor on any Related Escrow Account through
the Transfer Date. Evidence of such credit shall be provided to Purchaser.
SECTION 5.10 TITLE INSURANCE.
A title policy which is currently in effect and has not been modified, has
been issued for each Mortgage Loan insuring, in an amount no less than the
outstanding Mortgage Loan balance, that the Mortgage relating thereto is a valid
lien on the property therein described and that the related Mortgaged Property
is free and clear of all encumbrances and liens having priority over the lien of
the Mortgage, except for liens for real estate taxes and special assessments not
yet due and payable and except for easements and restrictions of record being
acceptable to mortgage lending institutions generally and specifically
identified in the title policy. In jurisdictions that give unpaid common expense
assessments limited priority over a first mortgage lien, the policy provides
assurance that those assessments have been paid through the effective date of
the policy.
SECTION 5.11 TAX COMPLIANCE.
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Seller or the Current Servicer has complied in all material respects with
all local, state and federal laws and regulations pertaining to tax reporting.
For example, but not by way of limitation, Seller has:
(a) Implemented backup withholding of interest accrual on Related Escrow
Accounts, where required;
(b) Certified Social Security or Taxpayer Identification numbers for
each Mortgage Loan; and
(c) Provided all appropriate tax forms and information to (i) the
Internal Revenue Service, (ii) the buyers and sellers in assumption
or foreclosure transactions and (iii) Mortgagors who have a buydown
account as part of their Mortgage Loan.
Further, Seller shall, on or before the Transfer Date, provide Purchaser
with evidence of Seller's compliance with the requirements of this Section 5.11;
provided that if such evidence is not so provided then Seller shall reimburse
Purchaser for its reasonable expenses in obtaining, and for any penalties
assessed against Purchaser for Seller's failure to have, the numbers described
in Section 5.11(b).
SECTION 5.12 MORTGAGE LOAN SERVICING.
Each Mortgage Loan has been serviced in accordance with the terms of its
Mortgage note, Mortgage and related Mortgage Loan documents.
SECTION 5.13 FRAUD.
No error, omission, misrepresentation, negligence, fraud or similar
occurrence with respect to a Mortgage Loan has taken place on the part of Seller
or the Mortgagor, or, to the best of Seller's knowledge, any Person, including
without limitation, any appraiser, any builder or developer, or any other party
involved in the origination of the Mortgage Loan or in the application of any
insurance regarding such Mortgage Loan that materially and adversely affects
Purchaser, the Mortgage Loan or the Servicing.
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SECTION 5.14 MERS REGISTRATION.
As of the Transfer Date, all of the Mortgage Loans have been registered on
the MERS system and all required data has been entered by Seller on the MERS
system, with the exception of recording information that is not yet available to
Seller as of the Transfer Date.
SECTION 5.15 HURRICANE AFFECTED MORTGAGE LOANS.
No Mortgaged Property has been damaged by Hurricanes Xxxxxxx, Xxxxx or
Xxxx.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF PURCHASER
As an inducement to Seller to enter into this Agreement, Purchaser
represents and warrants to Seller as of the Sale Date and the Transfer Date as
follows:
SECTION 6.01 DUE INCORPORATION AND GOOD STANDING.
Purchaser is a corporation duly organized, validly existing and in good
standing under the laws of the State of New York. Purchaser is qualified to
transact business in each jurisdiction in which such qualification is deemed
necessary to service the Mortgage Loans.
SECTION 6.02 AUTHORITY AND CAPACITY.
Purchaser has all requisite corporate power, authority and capacity,
subject to approvals required pursuant to Sections 7.02 and 7.03 hereof, to
enter into this Agreement and the Interim Servicing Agreement and to perform the
obligations required of it hereunder and thereunder. The execution and delivery
of this Agreement and the Interim Servicing Agreement and the consummation of
the transactions contemplated hereby and thereby, have each been duly and
validly authorized by all necessary corporate action. This Agreement and the
Interim Servicing Agreement constitute valid and legally binding agreements of
Purchaser enforceable in accordance with their respective terms, and no offset,
counterclaim or defense exists to the full performance by Purchaser of this
Agreement and the Interim Servicing Agreement, except as the same may be limited
by bankruptcy, insolvency, reorganization or other laws relating to or affecting
the enforcement of creditors' rights and by general equity principles.
SECTION 6.03 EFFECTIVE AGREEMENTS.
The execution, delivery and performance of this Agreement and the Interim
Servicing Agreement by Purchaser, its compliance with the terms hereof and
thereof and the consummation of the transactions contemplated hereby and thereby
will not violate, conflict with, result in a breach of, constitute a default
under, be prohibited by or require any additional approval under its certificate
of incorporation or bylaws, any instrument or agreement to which it is a party
or by which it is bound
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or which affects the Servicing, or any state or federal law, rule or regulation
or any judicial or administrative decree, order, ruling or regulation applicable
to it or to the Servicing.
SECTION 6.04 SELLER/SERVICER STANDING.
Purchaser is an approved Xxxxxx Mae and Xxxxxxx Mac Seller/Servicer and
GNMA Issuer/Servicer in good standing and a residential servicer rated or
approved by each of the Rating Agencies with the requisite financial criteria
and adequate resources to complete the transactions contemplated hereby on the
conditions stated herein.
SECTION 6.05 LITIGATION.
There is no litigation, proceeding or governmental investigation pending
or, to the best of Purchaser's knowledge, threatened, which might materially and
adversely affect its ability to consummate the transactions contemplated by this
Agreement nor does Purchaser know of any basis for any such litigation,
proceeding or governmental investigation.
SECTION 6.06 MERS MEMBERSHIP.
Purchaser is a member in good standing of the MERS system.
ARTICLE VII
COVENANTS
Purchaser and Seller covenant and agree as follows:
SECTION 7.01 ASSIGNMENTS.
(a) On or prior to the Transfer Date, Seller shall, at its own expense,
ensure that all Mortgage Loans are registered with MERS and prepare
and send, or cause to be prepared and sent, for recordation an
individual assignment of each Mortgage Loan to MERS in a form
acceptable under state or federal law.
(b) Purchaser shall provide a tape of its Mortgage Loan numbers to
Seller at least thirty (30) calendar days prior to the Transfer Date
and Seller shall reference the corresponding Purchaser Mortgage Loan
number on each assignment prepared pursuant to this Section 7.01.
(c) Within two (2) Business Days after the Transfer Date, Seller shall
provide to Purchaser a copy of each original recorded Mortgage
assignment required by Section 7.01(a) hereof provided if such
original has not been returned by the appropriate recorder's office,
Seller shall provide a copy of the executed Mortgage assignment with
a certification affixed to the assignment that such Mortgage
assignment is a true
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and correct copy and that the original Mortgage assignment has been
delivered to the appropriate land recorder's office for recordation.
(d) On and after the Transfer Date Seller shall deliver such other
appropriately executed and authenticated instruments of sale,
assignment, transfer and conveyance to Purchaser as Purchaser may
reasonably request in order to accomplish the transfer to Purchaser
of all of Seller's rights related to the Servicing and the Mortgage
Loans, including a limited power of attorney substantially in the
form of Exhibit K hereto. Such instruments provided by Seller shall
be reasonably satisfactory in form to Purchaser.
(e) On or within two (2) Business Days after the Transfer Date, Seller
shall initiate, or shall cause the Current Servicer to initiate, an
electronic transmission to MERS changing the servicer of record on
with respect to the MERS Mortgage Loans to Purchaser.
SECTION 7.02 INVESTOR APPROVAL.
In connection with any Reconstitution, Seller shall notify Purchaser in
writing at least ten (10) Business Days but not less than five (5) Business Days
prior to such related Reconstitution Date for any transfer of the Mortgage Loans
to an investor. Subsequent to any such transfer, the Mortgage Loans shall
continue to be serviced in accordance with Exhibit M. Any such transfer shall be
subject to Article XI. If a Reconstitution occurs within the same month as the
Transfer Date, Seller must provide notification of such Reconstitution no later
than seven (7) Business Days following the Transfer Date.
SECTION 7.03 GOVERNMENTAL AGENCY FILINGS.
Purchaser and Seller agree to take all reasonable and necessary actions to
obtain approval of the transfer by any and all federal and state agencies, as
may be required.
SECTION 7.04 TRANSFER NOTICES.
(a) No later than fifteen (15) calendar days prior to the Transfer Date,
Seller shall mail, or shall cause to be mailed, to each Mortgagor a
notification letter, in a form reasonably satisfactory to Purchaser,
advising the Mortgagor of (i) the transfer of Servicing to
Purchaser, (ii) Seller's tax reporting responsibilities, and (iii)
the effect of the transfer of Servicing on Optional Insurance. The
expense of the preparation, printing and mailing of such
notification letter shall be borne by Seller or Seller's agent. In
addition, the mailing and content of such letter shall comply with
all applicable state and federal laws or regulations.
(b) No later than fifteen (15) calendar days prior to the Transfer Date,
Seller shall, at Seller's expense and in a form reasonably
satisfactory to Purchaser, (i) notify all relevant MI companies by
electronic transmission, that all insurance premium xxxxxxxx for the
Mortgage Loans must thereafter be sent to Purchaser and (ii)
transmit
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to the applicable flood and hazard insurance companies and/or agents
(1) notification of the assignment of the Servicing to Purchaser,
(2) change endorsement requests with standard mortgagee clause
endorsed in favor of "CitiMortgage, Inc., its successors and/or
assigns," and (3) instructions to deliver all notices and insurance
statements, as the case may be, to Purchaser or Purchaser's agent
from and after the Transfer Date.
(c) No later than fifteen (15) calendar days prior to the date a notice
referenced in this Section 7.04 is required to be sent, Seller or
Seller's agent, as the case may be, shall provide Purchaser with a
draft of such notice for approval.
SECTION 7.05 REAL ESTATE TAXING AUTHORITIES.
(a) On the Transfer Date, for all loans, Seller shall, at Seller's
expense, transfer to Purchaser full life of loan tax service
contracts with FARETS. The tax service contracts are to provide
Purchaser with complete tax procurement and payment services. Seller
agrees to provide to Purchaser, in an electronic format acceptable
to Purchaser, the information necessary to effectuate the
establishment of tax service on the Transfer Date for all fifty (50)
states.
(b) Seller shall be responsible for any tax penalties incurred due to
incorrect or missing tax records processed or provided by Seller or
Seller's tax service agent to Purchaser.
(c) Seller shall pay or cause to be paid, prior to the Transfer Date,
all tax bills (including any applicable penalties and interest) with
tax due dates prior to or within thirty (30) calendar days following
the Transfer Date, if such tax bills have been issued by the taxing
authority.
(d) Purchaser shall not be responsible for any tax penalties (including
any loss of discount for which a Mortgagor or any third party for
the benefit of the Mortgagor has a legal claim) on Mortgage Loans
for which the related tax due date occurs (i) prior to the Transfer
Date, or (ii) prior to or within thirty (30) calendar days following
the Transfer Date, but only if the tax xxxx was issued by the taxing
authority.
(e) Seller shall provide to Purchaser within two (2) Business Days after
the Transfer Date a current list of Mortgage Loans that have taxes
or assessments that were due prior to or within thirty (30) calendar
days after the Transfer Date and not paid.
SECTION 7.06 HAZARD AND MI INSURANCE.
(a) Seller shall pay or cause to be paid, prior to the Transfer Date,
all insurance bills with policy due dates prior to or within thirty
(30) calendar days following the Transfer Date, if such insurance
bills have been issued by insurance companies.
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(b) Seller shall provide to Purchaser within two (2) Business Days after
the Transfer Date a current list of Mortgage Loans that have hazard
and MI insurance premiums and/or assessments that were due prior to
or within thirty (30) calendar days after the Transfer Date and not
paid.
SECTION 7.07 FLOOD INSURANCE DETERMINATION TRACKING.
(a) On the Transfer Date, for all loans, Seller agrees to transfer to
Purchaser life of loan flood insurance determination tracking
services with First American at no cost to Purchaser. Seller shall
provide such additional flood insurance determination information
that is readily available to Seller as may be reasonably requested
by Purchaser.
(b) Seller shall provide to Purchaser within two (2) Business Days after
the Transfer Date a current list of Mortgage Loans that have flood
insurance premiums and/or assessments that were due prior to or
within thirty (30) calendar days after the Transfer Date and not
paid.
SECTION 7.08 OPTIONAL INSURANCE.
Within three (3) Business Days after the Sale Date, Seller shall provide
to Purchaser the information listed on Exhibit G hereto with respect to the
Mortgage Loans as of the Sale Date. As authorized by, and in accordance with,
the terms of the Optional Insurance policies or any applicable law, and as
directed by Purchaser no later than thirty (30) calendar days prior to the
Transfer Date, Seller shall inform each Mortgagor with Optional Insurance, in
the notice required by Section 7.04(a) hereof, of (a) Mortgagor's ability to pay
such Optional Insurance on a direct basis, (b) cancellation of such Optional
Insurance and, if applicable, of the opportunity to obtain Optional Insurance
made available by or through Purchaser or any of its affiliates, or (c)
Mortgagor's ability to pay premiums on such Optional Insurance to Purchaser with
Purchaser forwarding such payment to Mortgagor's Optional Insurance carrier. If
the Optional Insurance is cancelled as described above, and such cancellation
occurs prior to the Transfer Date, Seller shall be responsible for (a) any
refunds due to Mortgagors as a result of such cancellation, (b) all claims
(whether formally filed with the Optional Insurance carrier or not) that arise
from events that occur prior to such cancellation and (c) forwarding to
Purchaser, or if required by the related Optional Insurance contract to the
Mortgagor, any Optional Insurance benefits or proceeds that are paid in
connection with any claims under (b).
SECTION 7.09 DELIVERY OF MORTGAGE LOAN DOCUMENTATION AND INFORMATION.
(a) Within two (2) Business Days after (i) the Sale Date, (ii) each
monthly cutoff date following the Sale Date and (iii) the Transfer
Date, Seller, at its own expense, shall provide a schedule of
Mortgage Loans, in a trial balance type report, including the
information listed on Exhibit A.
(b) Purchaser shall provide Seller, at Purchaser's expense, with
pre-printed file folders to be used by Seller in transferring
Mortgage Loan files to Purchaser. No later than
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fifteen (15) days prior to the Transfer Date Seller, at its own
expense, shall provide Purchaser or Purchaser's document custodian,
as directed by Purchaser, the Mortgage Loan documentation and
information described in Exhibits D and E in accordance with
Purchaser's shipping and packing instructions described in Exhibits
L-1.
(c) On the twenty-fifth (25th) day of each month following the Sale
Date, or, if the twenty-fifth (25th) day is not a Business Day, the
first Business Day following the twenty-fifth day of the month,
Seller shall provide to Purchaser, via electronic mail to
Purchaser's designee, an Excel spreadsheet detailing the Mortgage
Loan account number, principal balance and interest paid to date as
of the twenty-fourth (24th) day of such month for each Mortgage
Loan.
(d) By the fifteenth (15th) calendar day following the Transfer Date,
Seller will verify the scheduled balances of the Mortgage Loans
provided by Purchaser.
SECTION 7.10 DELIVERY OF SERVICING SYSTEM INFORMATION.
Seller shall provide to Purchaser, on conversion tapes meeting the
specifications of Exhibit C, all servicing information, including the
information in Exhibit E, relating to the Mortgage Loans that is necessary for
the proper servicing of the Mortgage Loans. Test conversion tapes shall be
delivered to Purchaser (a) within two (2) Business Days after the Sale Date, (b)
sixty (60) calendar days prior to the Transfer Date and (c) thirty (30) calendar
days prior to the Transfer Date. The first delivery of test conversion tapes
shall include a documented layout and a COBOL copybook. Two (2) duplicate final
conversion tapes shall be delivered to Purchaser no later than two (2) Business
Days after the Transfer Date.
SECTION 7.11 RELATED ESCROW ACCOUNT BALANCES.
Within three (3) Business Days after the Transfer Date Seller shall:
(a) Provide Purchaser by wire transfer of immediately available federal
funds the net escrow (net of Seller's unreimbursed advances and
suspense balances, all hazard and flood insurance loss draft
balances, any buydown balances and any unapplied funds associated
with the Mortgage Loans; and
(b) Provide Purchaser with an accounting statement sufficient to enable
Purchaser to reconcile the balances referred to in Section 7.11(a)
above with the accounts of the Mortgage Loans.
SECTION 7.12 PAYOFFS AND ASSUMPTIONS.
Seller shall provide to Purchaser within two (2) Business Days after the
Transfer Date (a) copies of all assumption and payoff statements generated by
Seller on the Mortgage Loans within the preceding sixty (60) calendar days and
(b) a status report for any assumption or payoff in process as of the Transfer
Date. Seller and Purchaser shall cooperate with and assist each other, as
requested, in completing any payoff or assumption that is in process as of the
Transfer Date.
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SECTION 7.13 MORTGAGE LOAN PAYMENTS RECEIVED AFTER TRANSFER DATE.
Any Mortgage Loan payment received by Seller (a) within thirty (30)
calendar days after the Transfer Date shall be forwarded to Purchaser by
overnight mail within one (1) Business Day of receipt and (b) between thirty-one
(31) and sixty (60) calendar days after the Transfer Date shall be promptly
forwarded to Purchaser by U.S. mail or by overnight courier, with an endorsement
of the Mortgage Loan payment to Purchaser. Thereafter, any Mortgage Loan
payments received by Seller shall be immediately returned to the Mortgagor with
a notice that Mortgagor must send payments to Purchaser. Any Mortgage Loan
payments with respect to Mortgage Loans the Servicing of which is repurchased by
Seller pursuant to Section 10.03 hereof received by Purchaser (a) within thirty
(30) calendar days after such repurchase shall be forwarded to Seller by
overnight mail within one (1) Business Day of receipt and (b) between thirty-one
(31) and sixty (60) calendar days after such repurchase shall be promptly
forwarded to Seller by U.S. mail, with an endorsement of the Mortgage Loan
payment to Seller. Thereafter, any Mortgage Loan payments received by Purchaser
shall be immediately returned to the Mortgagor with a notice that Mortgagor must
send payments to Seller. All other Mortgage Loan correspondence or documentation
received by Seller after the Transfer Date shall be forwarded to Purchaser no
later than three (3) Business Days after receipt by Seller. Any Mortgage Loan
payments forwarded by Seller or Purchaser pursuant to this Section 7.13 shall be
accompanied by sufficient information to permit appropriate processing of the
payment, including, without limitation, a transmittal identifying for each
payment Seller and Purchaser loan number, the check number, the payment amount,
the Mortgagor's last name, the number of checks transmitted and total dollar
amount of such checks.
SECTION 7.14 MISAPPLIED AND RETURNED PAYMENTS.
Misapplied and returned payments shall be processed as follows:
(a) Both parties shall cooperate in correcting misapplication errors;
(b) The party receiving notice of a misapplied payment shall immediately
notify the other party;
(c) Subject to Section 3.01(b) hereof, if a misapplied payment has
created an improper Purchase Price as the result of an inaccurate
outstanding principal balance, a check shall be issued to the party
shorted by the improper payment application within ten (10) Business
Days after notice thereof by the other party;
(d) Any check issued under the provisions of this Section 7.14 shall be
accompanied by a statement indicating the purpose of the check, the
Mortgagor and property address involved, and the corresponding
Seller and Purchaser account number; and
(e) If any Mortgagor's check presented to Seller prior to the Transfer
Date is returned unpaid to Seller for any reason subsequent to the
Transfer Date, Seller shall immediately forward the original unpaid
check to Purchaser and Purchaser shall reimburse Seller therefor
promptly upon Seller's demand. If, as a result of the unpaid
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check such Mortgagor's loan becomes a Delinquent Mortgage, Seller
shall reimburse to Purchaser the Purchase Price allocable to said
Mortgage Loan within ten (10) Business Days after notice thereof by
Purchaser.
SECTION 7.15 SERVICING OBLIGATIONS.
(a) From the date hereof until the Transfer Date, Seller shall (or shall
cause the Current Servicer to) in accordance with the Interim
Servicing Agreement pay, perform and discharge all liabilities and
obligations relating to the Servicing, including without limitation
all liabilities and obligations under the Mortgage Loan documents
and applicable laws, regulations and requirements; and shall pay,
perform and discharge all the rights, obligations and duties with
respect to the Related Escrow Accounts as required by the Mortgage
Loan documents and all applicable laws and regulations until the
transfer of such items on the Transfer Date.
(b) On and after the Transfer Date, Purchaser shall pay, perform and
discharge all liabilities and obligations relating to the Servicing,
including without limitation all liabilities and obligations under
the Mortgage Loan documents and applicable laws, regulations; and
shall pay, perform and discharge all rights, obligations and duties
with respect to the Related Escrow Accounts as required by Mortgage
Loan documents, Exhibit M and all applicable laws and regulations.
(c) Purchaser shall not be responsible for the acts and omissions of
Seller nor for any other obligations or liabilities of Seller
whatsoever, except those obligations or liabilities in the Mortgage
Loan documents, which obligations and liabilities are hereby assumed
by Purchaser. Seller shall not be responsible for any of the acts
and omissions of Purchaser nor for any other obligations or
liabilities of Purchaser.
SECTION 7.16 RESERVED.
SECTION 7.17 SOLICITATION RIGHTS.
(a) Seller agrees that all Mortgagors are the exclusive customers of
Purchaser. Neither Seller nor any of its affiliates shall solicit
Mortgagors (nor shall Seller or its affiliates direct any of their
agents to solicit Mortgagors) for any purposes, including, but not
limited to, financial services, insurance coverage or prepayment of
Mortgage Loans. Without the prior written consent of Purchaser,
Seller shall not sell or distribute any customer list incorporating
the names of Mortgagors and shall not itself use any such list to
solicit or promote, or to allow any other person to solicit or
promote, the sale of any services or products to any Mortgagor.
Purchaser or any of its affiliates may make sales to, or solicit the
sale to, Mortgagors of financial services and products, including,
but not limited to, insurance related products.
(b) The restrictions under Section 7.17(a) above shall not apply to:
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(i) an advertising campaign offering financial services,
including mortgage or insurance-related products and
services, directed to the general public;
(ii) a solicitation for financial services, other than
mortgage or mortgage-insurance related products and
services, to any Mortgagor with whom Seller or an
affiliate has a customer relationship, provided that
such solicitation is part of a solicitation program not
directed primarily to the Mortgagors; or
(iii) any application or request for any product or service
offered by Seller or any affiliate of Seller, provided
that such contact is initiated by the Mortgagor for the
purpose of making such application or request.
(c) Neither Seller nor any of its affiliates may circumvent the intent
of this Section 7.17 by selling or distributing a customer list
incorporating the names of the Mortgagors to any other person or
entity.
SECTION 7.18 YEAR END TAX REPORTING.
Seller shall be responsible for providing the Internal Revenue Service and
Mortgagors with all appropriate tax forms and information for transactions
affecting the Mortgage Loans during the period from January 1, 2006, through the
Transfer Date. Seller further agrees to cooperate with Purchaser in providing
additional tax information reasonably requested by Purchaser in order to comply
with Purchaser's tax reporting obligations with respect to the Mortgage Loans.
SECTION 7.19 COOPERATION.
Seller and Purchaser shall cooperate with and assist each other, as
requested, in carrying out the purposes of this Agreement and the Interim
Servicing Agreement.
SECTION 7.20 SUPPLEMENTAL INFORMATION.
From time to time prior to and after the Transfer Date, Seller shall
furnish Purchaser such incidental information, which is reasonably available to
Seller, supplemental to the information contained in the documents and schedules
delivered pursuant to this Agreement, which is necessary for the proper
servicing of the Mortgage Loans.
SECTION 7.21 ACCESS TO INFORMATION.
Seller shall, upon five (5) Business Days prior written notice, give to
Purchaser and its counsel, accountants and other representatives reasonable
access to all of Seller's files, books and records relating to the Servicing and
Related Escrow Accounts during normal business hours throughout the period prior
to the Transfer Date.
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Subsequent to the Transfer Date, Purchaser shall, upon reasonable notice
from Seller, comply with Seller's written request to produce copies of Mortgage
Loan files transferred by Seller to Purchaser. Seller shall only make such
request if required by Seller's regulators or Investors. For each Mortgage Loan
file requested, Purchaser shall charge twenty dollars ($20.00) plus the cost to
ship such Mortgage Loan file payable by Seller upon receipt of Mortgage Loan
files.
SECTION 7.22 ASSIGNMENTS.
For any Mortgage Loan which pays in full prior to the return of the
assignments described in Section 7.01, Seller shall, within two (2) Business
Days of receipt of written request from Purchaser, execute and return to
Purchaser any such assignments prepared by Purchaser and required to effectuate
a Mortgage Loan satisfaction.
ARTICLE VIII
CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER
The obligations of Purchaser under this Agreement are subject to the
satisfaction or waiver of the following conditions:
SECTION 8.01 CORRECTNESS OF REPRESENTATIONS AND WARRANTIES.
The representations and warranties made by Seller in this Agreement are,
and shall continue to be, true and correct in all material respects on the Sale
Date and the Transfer Date.
SECTION 8.02 COMPLIANCE WITH CONDITIONS.
All of the terms, covenants, conditions and obligations of this Agreement
required to be complied with and performed by Seller shall have been duly
complied with and performed in all material respects.
SECTION 8.03 NO MATERIAL ADVERSE CHANGE.
There shall not have been any change in the Servicing, the Mortgage Loans
or the Related Escrow Accounts that will likely materially and adversely affect
the consummation of the transactions contemplated hereby.
SECTION 8.04 NO ACTIONS.
There shall not have been commenced or, to the best of Seller's knowledge,
threatened any action, suit or proceeding which will likely materially and
adversely affect the Servicing, the Mortgage Loans or the Related Escrow
Accounts or the consummation of the transactions contemplated hereby.
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SECTION 8.05 CONSENTS.
The parties shall have obtained all consents and approvals of third
parties required for the consummation of the transactions as contemplated by
Section 7.02.
ARTICLE IX
CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER
The obligations of Seller under this Agreement are subject to the
satisfaction of the following conditions:
SECTION 9.01 CORRECTNESS OF REPRESENTATIONS AND WARRANTIES.
The representations and warranties made by Purchaser in this Agreement
are, and shall continue to be, true and correct in all material respects on the
Sale Date and the Transfer Date.
SECTION 9.02 COMPLIANCE WITH CONDITIONS.
All of the terms, conditions, covenants and obligations of this Agreement
required to be complied with and performed by Purchaser shall have been duly
complied with and performed in all material respects.
SECTION 9.03 NO MATERIAL ADVERSE CHANGE.
There shall not have been any change to Purchaser's financial condition
that will likely materially and adversely affect the consummation of the
transactions contemplated hereby.
SECTION 9.04 NO ACTIONS.
There shall not have been commenced or, to the best of Purchaser's
knowledge, threatened any action, suit or proceeding that will likely materially
and adversely affect the consummation of the transactions contemplated hereby.
SECTION 9.05 CONSENTS.
The parties shall have obtained all consents and approvals of third
parties required for the consummation of the transactions as contemplated by
Section 7.02.
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ARTICLE X
INDEMNIFICATION; CURE OR REPURCHASE
SECTION 10.01 INDEMNIFICATION BY SELLER.
Seller shall indemnify, defend and hold Purchaser harmless from and shall
reimburse Purchaser for any losses, damages, deficiencies, claims, causes of
action or expenses of any nature (including, but not limited to, reasonable
attorneys' fees and legal or other expenses associated with investigation,
defense and discovery) suffered or incurred by Purchaser before or after the
Transfer Date which result from:
(a) Any misrepresentation made by Seller in this Agreement or in any
schedule, written statement or certificate furnished by Seller
pursuant to this Agreement (including, without limitation, the
information included in the Exhibits hereto);
(b) Any breach of a representation or warranty by Seller, or the
non-fulfillment of any term, covenant, condition or obligation of
Seller contained in this Agreement, any Reconstitution Agreement,
the Interim Servicing Agreement, or in any schedule, written
statement or certificate furnished by Seller pursuant to this
Agreement or the Interim Servicing Agreement;
(c) Any error in originating, closing or servicing any of the Mortgage
Loans (including, without limitation, errors in determination of
interest rate and monthly payment adjustments) prior to the Transfer
Date including improper action or failure to act when required to do
so;
(d) Any material defect in any Mortgage Loan existing as of the Transfer
Date (including those defects subsequently discovered), or as a
result of any act or omission of Seller or a Prior Servicer prior
thereto;
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(e) Seller's failure to (i) permit Purchaser to examine records, (ii)
comply with the provisions hereof or Purchaser's reasonable
instructions regarding the transfer of Servicing or (iii) provide
accurate information reasonably requested by Purchaser regarding the
Mortgage Loans or the Servicing; or
(f) Litigation, proceedings, governmental investigations, orders,
injunctions or decrees the basis for which occurred on or prior to
the Transfer Date involving the Servicing or any of the Mortgage
Loans or resulting from any of the items described in Section
10.01(a)-(e) above;
provided, however, that Purchaser has taken all reasonable and appropriate
actions to mitigate any such losses, damages, deficiencies, claims, causes of
action or expenses. Seller shall promptly notify Purchaser of any litigation,
proceedings, governmental investigations, orders, injunctions or decrees
specified above. Upon receipt of such notice, Purchaser shall have the right to
participate in the selection of counsel and the defense thereof; provided,
however, that if Purchaser reasonably concludes that there may be legal defenses
available to it that are different from or in addition to those available to
Seller, Purchaser shall have the right to select separate counsel and to
otherwise separately defend itself. Any exercise of such rights by Purchaser
shall not relieve Seller of its obligations and liabilities under this Section
10.01 or any other provision of this Agreement.
SECTION 10.02 INDEMNIFICATION BY PURCHASER.
Purchaser shall indemnify, defend and hold Seller harmless from and shall
reimburse Seller for any losses, damages, deficiencies, claims, causes of action
or expenses of any nature (including, but not limited to, reasonable attorneys'
fees and legal or other expenses associated with investigation, defense and
discovery) suffered or incurred by Seller before or after the Transfer Date
which result from:
(a) Any misrepresentation made by Purchaser in this Agreement, or in any
schedule, written statement or certificate furnished by Purchaser
pursuant to this Agreement;
(b) Any breach of a representation or warranty by Purchaser, or the
non-fulfillment of any term, covenant, condition or obligation of
Purchaser contained in this Agreement, any Reconstitution Agreement,
the Interim Servicing Agreement or in any schedule, written
statement or certificate furnished by Purchaser pursuant to this
Agreement;
(c) Any error of Purchaser in servicing any of the Mortgage Loans after
the Transfer Date including improper action or failure to act when
required to do so;
(d) Purchaser's failure to permit Seller to examine records; or
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(e) Litigation, proceedings, governmental investigations, orders,
injunctions or decrees the basis for which occurred on or after the
Transfer Date involving the Servicing or any of the Mortgage Loans
or resulting from any of the items described in Section 10.02(a)-(d)
above;
provided, however, that Seller has taken all reasonable and appropriate actions
to mitigate any such losses, damages, deficiencies, claims, causes of action or
expenses. Purchaser shall promptly notify Seller of any litigation, proceedings,
governmental investigations, orders, injunctions or decrees specified above.
Upon receipt of such notice, Seller shall have the right to participate in the
selection of counsel and the defense thereof; provided, however, that if Seller
reasonably concludes that there may be legal defenses available to it that are
different from or in addition to those available to Purchaser, Seller shall have
the right to select separate counsel and to otherwise separately defend itself.
Any exercise of such rights by Seller shall not relieve Purchaser of its
obligations and liabilities under this Section 10.02 or any other provision of
this Agreement.
SECTION 10.03 REPURCHASE.
Seller shall be responsible for any repurchases required by an investor
following any Reconstitution and Purchaser shall be retained to service such
repurchased Mortgage Loan in accordance with this Agreement
ARTICLE XI
REMOVAL OF MORTGAGE LOANS FROM INCLUSION UNDER THIS
AGREEMENT UPON AN AGENCY TRANSFER, WHOLE-LOAN TRANSFER OR A
SECURITIZATION TRANSACTION ON ONE OR MORE RECONSTITUTION DATES
SECTION 11.01 AGENCY TRANSFER; WHOLE LOAN TRANSFER; SECURITIZATION
TRANSACTION.
(a) Seller and Purchaser agree that with respect to some or all of the
Mortgage Loans, upon written notice (including all information
described on Exhibit P hereto; provided that if the related
Reconstitution Date occurs in the same month as the related Transfer
Date, such notice will include the information set forth on Exhibit
P that is available to the Seller at the time such notice is
provided) to Seller at least ten (10) Business Days but in no event
less than five (5) Business Days prior to any Reconstitution Date,
Purchaser may effect either one or more Agency Transfer, Whole Loan
Transfer, and/or Securitization; provided, however, that Purchaser
shall not be required to recognize any such transfer or transaction
to the extent that it would result in Mortgage Loans being serviced
for more than four (4) investors hereunder. On the related
Reconstitution Date, the Mortgage Loans transferred shall cease to
be covered by this Agreement; provided, however, that in each such
Agency Transfer, Whole Loan Transfer and/or Securitization Purchaser
shall be retained as the servicer thereof.
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(b) Purchaser shall cooperate with Seller in connection with any Agency
Transfer, Whole Loan Transfer or Securitization Transaction
contemplated by Seller pursuant to this Section 11.01. In that
connection, Purchaser agrees to:
(i) cooperate reasonably with Seller and any prospective purchaser
with respect to all reasonable requests;
(ii) provide, at Seller's expense, to any Master Servicer or
trustee, as applicable, and/or Seller any and all publicly
available information and appropriate verification of
information which may be reasonably available to Purchaser,
whether through letters of its auditors and counsel or
otherwise, as Seller, trustee or a Master Servicer shall
reasonably request as to the related Mortgage Loans;
(iii) service the Mortgage Loans in accordance with the requirements
of this Agreement;
(iv) provide all other assistance reasonably requested by Seller
including cooperating with Seller in its preparation of any
disclosure documents. Accordingly, Seller shall be entitled to
include in any disclosure document any unaltered information
specifically requested by Seller for this purpose and provided
by Purchaser and Purchaser acknowledges and agrees that the
related investors will be permitted to rely on such
information;
(v) execute or acknowledge, at Seller's discretion, an assignment
in the form of Exhibit H by Seller to a successor purchaser of
some or all of the Mortgage Loans, which Mortgage Loans will
be assigned subject to the representations and warranties set
forth in this Agreement and covenants to service the Mortgage
Loans on behalf of the successor purchaser in accordance with
the terms and conditions of this Agreement or otherwise; and
if Purchaser is required to be a party to any of the other
Reconstitution Agreements, to execute such Reconstitution
Agreement required to effectuate the foregoing. If Seller
determines that Purchaser is required to be a party to any
Reconstitution Agreement, Purchaser shall execute such
Reconstitution Agreement within a reasonable period of time,
but in no event shall such time exceed five (5) Business Days
after mutual agreement between Purchaser and Seller as to the
terms thereof;
(vi) deliver to Seller such information, reports, letters and
certifications as are required pursuant to Article XII and to
indemnify Seller and its affiliates as set forth in Article
XII.
(c) All Mortgage Loans not sold or transferred pursuant to an Agency
Transfer, Whole Loan Transfer or Securitization Transaction and any
Mortgage Loans repurchased by the Seller shall be subject to this
Agreement and shall continue to
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be serviced in accordance with the terms of this Agreement and with
respect thereto this Agreement shall remain in full force and
effect.
ARTICLE XII
COMPLIANCE WITH REGULATION AB
SECTION 12.01. INTENT OF THE PARTIES; REASONABLENESS.
The Seller and the Purchaser acknowledge and agree that the purpose of
this Article XII of this Agreement is to facilitate compliance by the Seller 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 Purchaser acknowledges that investors in privately offered
securities may require that the Seller 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 Seller 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
Purchaser acknowledges that interpretations of the requirements of Regulation AB
may change over time, whether due to interpretive guidance provided by the
Commission or its staff, consensus among participants in the asset-backed
securities markets, advice of counsel, or otherwise, and agrees to comply with
requests made by the Seller, 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 Purchaser shall cooperate fully with the Seller
and any Master Servicer to deliver to the Seller (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 Seller, the Master Servicer or any Depositor to
permit the Seller, such Master Servicer or such Depositor to comply with the
provisions of Regulation AB, together with such disclosures relating to the
Purchaser, any Subservicer and the Mortgage Loans, or the servicing of the
Mortgage Loans, reasonably believed by the Seller or any Depositor to be
necessary in order to effect such compliance. In the event of any conflict
between this Article XII and any other term or provision in this Agreement, the
provisions of this Article XII shall control.
The Seller (including any of its assignees or designees) shall cooperate
the Purchaser by providing timely notice of requests for information under these
provisions and by reasonably limiting such requests to information required, in
the Seller's reasonable judgment, to comply with Regulation AB.
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SECTION 12.02. ADDITIONAL REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
(a) The Purchaser hereby represents to the Seller, to any Master
Servicer and to any Depositor, as of the date on which information
is first provided to the Seller, any Master Servicer or any
Depositor under Section 12.03 that, except as disclosed in writing
to the Seller, such Master Servicer or such Depositor prior to such
date: (i) the Purchaser 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 Purchaser; (ii) the Purchaser 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
Purchaser as servicer has been disclosed or reported by the
Purchaser; (iv) no material changes to the Purchaser'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
Purchaser's financial condition that could have a material adverse
effect on the performance by the Purchaser 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 Purchaser or any
Subservicer; and (vii) there are no affiliations, relationships or
transactions relating to the Purchaser or any Subservicer with
respect to any Securitization Transaction and any party thereto
identified by the related Depositor of a type described in Item 1119
of Regulation AB.
(b) If so requested by the Seller, any Master Servicer or any Depositor
on any date following the date on which information is first
provided to the Seller, any Master Servicer or any Depositor under
Section 12.03, the Purchaser shall, within five (5) 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 PURCHASER.
In connection with any Securitization Transaction the Purchaser shall (i)
within five (5) Business Days following request by the Seller or any Depositor,
provide to the Seller and such Depositor (or, as applicable, cause each
Subservicer to provide), in writing and in form and substance reasonably
satisfactory to the Seller and such Depositor, the information and materials
specified in paragraphs (c) and (g) of this Section, and (ii) as promptly as
practicable following notice to or discovery by the Purchaser, provide to the
Seller and any Depositor (in writing and
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in form and substance reasonably satisfactory to the Seller and such Depositor)
the information specified in paragraph (d) of this Section.
(a) [reserved]
(b) [reserved]
(c) If so requested by the Seller or any Depositor, the Purchaser shall
provide such information regarding the Purchaser, as servicer of the
Mortgage Loans, and each Subservicer (each of the Purchaser and each
Subservicer, for purposes of this paragraph, a "Servicer"), as is
requested for the purpose of compliance with Items 1108, 1117 and
1119 of Regulation AB. Such information shall include, at a minimum:
(A) the Servicer's form of organization;
(B) a description of how long the Servicer has been servicing
residential mortgage loans; a general discussion of the Servicer's
experience in servicing assets of any type as well as a more
detailed discussion of the Servicer's experience in, and procedures
for, the servicing function it will perform under this Agreement and
any Reconstitution Agreements; information regarding the size,
composition and growth of the Servicer's portfolio of residential
mortgage loans of a type similar to the Mortgage Loans and
information on factors related to the Servicer that may be material,
in the good faith judgment of the Seller 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
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default or to application of a servicing performance test or
trigger; and
(5) such other information as the Seller 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 Servicer of its servicing
obligations under this Agreement or any Reconstitution Agreement;
(E) information regarding advances made by the Servicer on the
Mortgage Loans and the Servicer's overall servicing portfolio of
residential mortgage loans for the three-year period immediately
preceding the related Securitization Transaction, which may be
limited to a statement by an authorized officer of the Servicer to
the effect that the Servicer has made all advances required to be
made on residential mortgage loans serviced by it during such
period, or, if such statement would not be accurate, information
regarding the percentage and type of advances not made as required,
and the reasons for such failure to advance;
(F) a description of the Servicer's processes and procedures
designed to address any special or unique factors involved in
servicing loans of a similar type as the Mortgage Loans;
(G) a description of the Servicer's processes for handling
delinquencies, losses, bankruptcies and recoveries, such as through
liquidation of mortgaged properties, sale of defaulted mortgage
loans or workouts;
(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
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(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
Seller or any Depositor in writing in advance of such Securitization
Transaction:
(1) the sponsor;
(2) the depositor;
(3) the issuing entity;
(4) any servicer;
(5) any trustee;
(6) any originator;
(7) any significant obligor;
(8) any enhancement or support provider; and (9) any other
material transaction party.
(d) For the purpose of satisfying the reporting obligation under the
Exchange Act with respect to any class of asset-backed securities,
the Purchaser shall (or shall cause each Subservicer to) (i) provide
prompt notice to any Master Servicer and any Depositor in writing of
(A) any material litigation or governmental proceedings involving
the Purchaser or any Subservicer, (B) any affiliations or
relationships that develop following the closing date of a
Securitization Transaction between the Purchaser or any Subservicer
(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 Purchaser, and (E) the
Purchaser's entry into an agreement with a Subservicer or
Subcontractor to perform or assist in the performance of any of the
Purchaser's obligations under this Agreement or any Reconstitution
Agreement and (ii) provide to the Seller and any Depositor a
description of such proceedings, affiliations or relationships.
(e) As a condition to the succession to the Purchaser or any Subservicer
as servicer or subservicer under this Agreement or any
Reconstitution Agreement by any Person (i) into which the Purchaser
or such Subservicer may be merged or consolidated, or (ii) which may
be appointed as a successor to the Purchaser or any Subservicer, the
Purchaser shall provide to the Seller and any Depositor, at least 15
calendar days prior to the effective date of such succession or
appointment, (x) written notice to the Seller and any Depositor of
such succession or appointment and (y) in writing and in form and
substance reasonably satisfactory to the Seller and such Depositor,
all information reasonably requested by the Seller or any Depositor
in order to comply with the Depositor's reporting obligation under
Item 6.02 of Form 8-K with respect to any class of asset-backed
securities.
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(f) In addition to such information as the Purchaser, 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
Purchaser or any Subservicer, the Purchaser or such Subservicer, as
applicable, shall, to the extent the Purchaser or such Subservicer
has knowledge, provide to the party responsible for filing such
report (including, if applicable, the Master Servicer) notice of the
occurrence of any of the following events along with all
information, data, and materials related thereto as may be required
to be included in the related distribution report on Form 10-D (as
specified in the provisions of Regulation AB referenced below):
(A) 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);
(B) material breaches of pool asset representations or warranties or
transaction covenants (Item 1121(a)(12) of Regulation AB); and
(C) 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 Purchaser shall provide to the Seller, 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 Purchaser or
any Subservicer or the Purchaser or such Subservicer's performance
hereunder.
SECTION 12.04. PURCHASER COMPLIANCE STATEMENT.
On or before March 1 of each calendar year, commencing in 2007, the
Purchaser shall deliver to any Master Servicer and any Depositor (upon request)
a statement of compliance addressed to the Seller, such Master Servicer and such
Depositor and signed by an authorized officer of the Purchaser, to the effect
that (i) a review of the Purchaser'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
officers' knowledge, based on such review, the Purchaser has fulfilled all of
its obligations under this Agreement and any applicable Reconstitution Agreement
in all material respects throughout such calendar year (or applicable
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portion thereof) or, if there has been a failure to fulfill any such obligation
in any material respect, specifically identifying each such failure known to
such officer and the nature and the status thereof.
SECTION 12.05. REPORT ON ASSESSMENT OF COMPLIANCE AND ATTESTATION.
(a) On or before March 1 of each calendar year, commencing in 2007, the
Purchaser shall:
(i) deliver to any Master Servicer and any Depositor (upon
request) a report (in form and substance reasonably
satisfactory to the Seller, such Master Servicer and
such Depositor) regarding the Purchaser'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 Seller, such Master Servicer and such Depositor and
signed by an authorized officer of the Purchaser, and
shall address each of the "Applicable Servicing
Criteria" specified on Exhibit O hereto;
(ii) deliver to any Master Servicer and any Depositor (upon
request) a report of a registered public accounting firm
reasonably acceptable to the Seller, such Master
Servicer and such Depositor that attests to, and reports
on, the assessment of compliance made by the Purchaser
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 Purchaser pursuant to Section 12.06(b)
to be "participating in the servicing function" within
the meaning of Item 1122 of Regulation AB, and, to the
extent required of such Subservicer or Subcontractor
under Item 1123 of Regulation AB, an annual compliance
certificate as and when provided by Section 12.04, to
deliver to the Seller, 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
(iv) if requested by any Depositor or any Master Servicer not
later than March 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 Seller, 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
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Securitization Transaction a certification, signed by
the appropriate officer of the Purchaser, in the form
attached hereto as Exhibit N.
The Purchaser acknowledges that the parties identified in clause (a)(iv)
above may rely on the certification provided by the Purchaser pursuant to such
clause in signing a Sarbanes Certification and filing such with the Commission.
Neither the Seller, any Depositor or any Master Servicer will request delivery
of a certification under clause (a)(iv) above unless a Depositor 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.
(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 O
hereto delivered to the Seller 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 Purchaser pursuant to
Section 12.06.
SECTION 12.06. USE OF SUBSERVICERS AND SUBCONTRACTORS.
The Purchaser shall not hire or otherwise utilize the services of any
Subservicer to fulfill any of the obligations of the Purchaser as servicer under
this Agreement or any Reconstitution Agreement unless the Purchaser complies
with the provisions of paragraph (a) of this Section. The Purchaser shall not
hire or otherwise utilize the services of any Subcontractor, and shall not
permit any Subservicer to hire or otherwise utilize the services of any
Subcontractor, to fulfill any of the obligations of the Purchaser as servicer
under this Agreement or any Reconstitution Agreement unless the Purchaser
complies with the provisions of paragraph (b) of this Section.
(a) It shall not be necessary for the Purchaser to seek the consent of
the Seller, any Master Servicer or any Depositor to the utilization
of any Subservicer. The Purchaser shall cause any Subservicer used
by the Purchaser (or by any Subservicer) for the benefit of the
Seller 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 Purchaser, and to provide the information
required with respect to such Subservicer under Section 12.03(d) of
this Agreement. The Purchaser shall be responsible for obtaining
from each Subservicer and delivering to the Seller 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.
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(b) It shall not be necessary for the Purchaser to seek the consent of
the Seller, any Master Servicer or any Depositor to the utilization
of any Subcontractor. The Purchaser shall promptly upon request
provide to the Seller, any Master Servicer and any Depositor (or any
designee of the Depositor, such as an administrator) a written
description (in form and substance satisfactory to the Seller, such
Depositor and such Master Servicer) of the role and function of each
Subcontractor utilized by the Purchaser or any Subservicer,
specifying (i) the identity of each such Subcontractor, (ii) which
(if any) of such Subcontractors are "participating in the servicing
function" within the meaning of Item 1122 of Regulation AB, and
(iii) which elements of the Servicing Criteria will be addressed in
assessments of compliance provided by each Subcontractor identified
pursuant to clause (ii) of this paragraph.
(c) 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 Purchaser shall cause any such
Subcontractor used by the Purchaser (or by any Subservicer) for the
benefit of the Seller 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 Purchaser. The Purchaser
shall be responsible for obtaining from each Subcontractor and
delivering to the Seller and any Depositor any assessment of
compliance and attestation and the other certifications required to
be delivered by such Subservicer and such Subcontractor under
Section 12.05, in each case as and when required to be delivered.
SECTION 12.07. INDEMNIFICATION; REMEDIES.
(a) The Purchaser shall indemnify the Seller, each affiliate of the
Seller, 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, an "Indemnified Party"), and shall hold
each of them harmless from and against any claims, losses, damages,
penalties, fines, forfeitures, legal fees and expenses and related
costs, judgments, and any other costs, fees and expenses that any of
them may sustain arising out of or based upon:
(i)(A)any untrue statement of a material fact contained or alleged
to be contained in any information, report, certification,
data,
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accountants' letter or other material provided in written or
electronic form under this Article XII by or on behalf of the
Purchaser, or provided under this Article XII by or on behalf
of any Subservicer or Subcontractor (collectively, the
"Servicer Information"), or (B) the omission or alleged
omission to state in the Servicer Information a material fact
required to be stated in the Servicer 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
Servicer Information and not to any other information
communicated in connection with a sale or purchase of
securities, without regard to whether the Servicer Information
or any portion thereof is presented together with or
separately from such other information;
(ii) any breach by the Purchaser of its obligations under this
Article XII, including particularly any failure by the
Purchaser, any Subservicer or Subcontractor to deliver any
information, report, certification, accountants' letter or
other material when and as required under this Article XII,
including any failure by the Purchaser 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 Purchaser 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 Purchaser 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
Purchaser in connection with its performance under this
Article XII.
If the indemnification provided for herein is unavailable or insufficient
to hold harmless an Indemnified Party, then the Purchaser 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 Purchaser on the other.
In the case of any failure of performance described in clause (a)(ii) of
this Section, the Purchaser shall promptly reimburse the Seller, any Depositor,
as applicable, and each Person responsible for the preparation, execution or
filing of any report required to be filed with the
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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 Purchaser, any Subservicer or any Subcontractor.
This indemnification shall survive the termination of this Agreement or
the termination of any party to this Agreement.
(b) (i) Any failure by the Purchaser, any Subservicer or any
Subcontractor to deliver any information, report,
certification, accountants' letter or other material when and
as required under this Article XII, or any breach by the
Purchaser 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 Purchaser 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 Purchaser under this
Agreement and any applicable Reconstitution Agreement, and
shall entitle the Seller, any Master Servicer or any
Depositor, as applicable, in its sole discretion to terminate
the rights and obligations of the Purchaser as servicer under
this Agreement and/or any applicable Reconstitution Agreement
without payment (notwithstanding anything in this Agreement or
any applicable Reconstitution Agreement to the contrary) of
any compensation to the Purchaser and if the Purchaser is
servicing any of the Mortgage Loans in a Securitization
Transaction, appoint a successor servicer, in accordance with
the related securitization agreement, 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 Purchaser as
servicer, such provision shall be given effect.
(ii) Any failure by the Purchaser, 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 in
the following paragraph) any failure by the Purchaser 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 (10) calendar days after the date on which such
information, report, certification or accountants' letter was
required to be delivered shall constitute an Event of Default
with respect to the Purchaser under this Agreement and any
applicable Reconstitution Agreement, and shall entitle the
Seller, any Master Servicer or any Depositor, as applicable,
in its sole discretion to terminate the rights and obligations
of the Purchaser as servicer under this Agreement and/or any
applicable Reconstitution
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Agreement without payment (notwithstanding anything in this
Agreement to the contrary) of any compensation to the
Purchaser; 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 Purchaser as
servicer, such provision shall be given effect.
None of the Seller, any Master Servicer, nor any Depositor shall be
entitled to terminate the rights and obligations of the Purchaser pursuant to
this subparagraph (b)(ii) if a failure of the Purchaser 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 Purchaser shall promptly reimburse the Seller (or any
designee of the Seller, such as a master servicer) and any
Depositor, as applicable, for all reasonable expenses incurred
by the Seller (or such designee) or such Depositor, as such
are incurred, in connection with the termination of the
Purchaser 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 Seller or any
Depositor may have under other provisions of this Agreement
and/or any applicable Reconstitution Agreement or otherwise,
whether in equity or at law, such as an action for damages,
specific performance or injunctive relief.
SECTION 12.08 THIRD PARTY BENEFICIARY.
For purposes of Articles XI and XII only each Master Servicer shall be
considered a third party beneficiary of this Agreement, entitled to all the
rights and benefits as if it were a direct party to this Agreement.
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ARTICLE XIII
MISCELLANEOUS
SECTION 13.01 COSTS AND EXPENSES.
Whether or not the transactions hereby contemplated shall be consummated,
costs and expenses incurred in connection with the transactions contemplated
hereby shall be paid as follows:
(a) Seller shall pay all fees necessary to transfer the Servicing to
Purchaser, including, but not limited to, any recording or filing
fees, MERS transfer of servicing and/or registration fees, any
costs, fees and expenses payable to any state or federal agencies,
Rating Agencies, master servicer, subservicer, trustee, Seller's
custodian and any transit vendor engaged by Seller in connection
with the shipping of the loan files and delivery of all final
documentation.
(b) Except as otherwise provided herein, Seller and Purchaser shall each
pay the expenses incurred by it or its affiliates in connection with
the transactions contemplated hereby.
SECTION 13.02 CONFIDENTIALITY.
Each party understands that certain information which it has been
furnished and will be furnished in connection with this transaction, including,
but not limited to information concerning business procedures, servicing fees or
prices, Non Public Personal Information and/or Personally Identifiable Financial
Information (as those terms are defined in Sections 573.3(n) and (o) of the
Office of Thrift Supervision Regulations on Privacy of Consumer Information
published at 12CFR Chapter V implementing Title V of the Xxxxx-Xxxxx-Xxxxxx
Act), policies or plans of the other party or any of its affiliates, is
confidential and proprietary, and each party agrees that it will maintain the
confidentiality of such information and will not disclose it to others or use it
except in connection with the proposed acquisition contemplated by this
Agreement, without the prior written consent of the party furnishing such
information. Information which is generally known in the industry concerning a
party or among such party's creditors generally or which has been disclosed to
the other party by third parties who have a right to do so shall not be deemed
confidential or proprietary information for these purposes. If Purchaser, any of
its affiliates or any officer, director, employee or agent of any of the
foregoing is at any time requested or required to disclose any information
supplied to it in connection with the transactions contemplated hereby,
Purchaser agrees to provide Seller with prompt notice of such request(s) so that
Seller may seek an appropriate protective order and/or waive Purchaser's
compliance with the terms of this Section 13.02. If Seller, any of its
affiliates or any officer, director, employee or agent of any of the foregoing
is at any time requested or required to disclose any information supplied to it
in connection with the transactions contemplated hereby, Seller agrees to
provide Purchaser with prompt notice of such request(s) so that Purchaser may
seek an appropriate protective order and/or waive Seller's compliance with the
terms of this Section 13.02. Notwithstanding the terms of this Section 13.02,
if, in the absence of a protective order or the receipt of a waiver hereunder,
Purchaser or Seller is nonetheless, in the opinion of its counsel, compelled to
disclose information concerning the other party to any tribunal
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or else stand liable for contempt or suffer other censure or penalty, Purchaser
or Seller may disclose such information to such tribunal without liability
hereunder. If the proposed acquisition is not consummated, each party agrees to
promptly return to the other, immediately upon request, all confidential
materials, and all copies thereof, which have been furnished to it in connection
with the transactions contemplated hereby.
SECTION 13.03 BROKER'S FEES.
Each party hereto represents and warrants to the other that it has made no
agreement to pay any finder's, agent's, broker's or originator's fee arising out
of or in connection with the subject matter of this Agreement. The parties
hereto shall indemnify and hold each other harmless from and against any such
obligation or liability and any expense incurred in investigating or defending
(including reasonable attorneys' fees) any claim based upon the other party's
actions in connection with such obligation.
SECTION 13.04 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
Each party hereto covenants and agrees that the representations and
warranties in this Agreement, and in any document delivered or to be delivered
pursuant hereto, shall survive the Transfer Date.
SECTION 13.05 NOTICES.
All notices, requests, demands and other communications which are required
or permitted to be given under this Agreement shall be in writing and shall be
deemed to have been given if personally delivered or sent by registered or
certified mail, return receipt requested, postage prepaid or by prepaid
overnight delivery service:
(a) If to Seller, to:
Xxxxxxx Xxxxx Mortgage Lending Inc.
4 World Financial Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Asset Management
(b) If to Purchaser, to:
CitiMortgage, Inc.
0000 Xxxxxxxxxx Xxxxx
X'Xxxxxx, Xxxxxxxx 00000
Attn: Capital Markets
With a copy to:
CitiMortgage, Inc.
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0000 Xxxxxxxxxx Xxxxx, XX #000
X'Xxxxxx, Xxxxxxxx 00000
Attn: Office of the General Counsel
or to such other address as Purchaser or Seller shall have specified in writing
to the other.
SECTION 13.06 WAIVERS.
Either Purchaser or Seller may, by written notice to the other:
(a) Extend the time for the performance of any of the obligations or
other transactions of the other; and
(b) Waive compliance with or performance of any of the terms,
conditions, covenants or obligations required to be complied with or
performed by the other hereunder.
The waiver by Purchaser or Seller of a breach of any provision of this Agreement
shall not operate or be construed as a waiver of any other subsequent breach.
SECTION 13.07 ENTIRE AGREEMENT; AMENDMENT; CONSTRUCTION.
This Agreement constitutes the entire agreement between the parties with
respect to the sale of the Servicing and supersedes all prior agreements with
respect thereto. This Agreement may be amended only in a written instrument
signed by both Seller and Purchaser.
SECTION 13.08 BINDING EFFECT.
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their successors and assigns. Nothing in this Agreement,
express or implied, is intended to confer on any person other than the parties
hereto and their successors and assigns, any rights, obligations, remedies or
liabilities.
SECTION 13.09 HEADINGS.
Headings on the Articles and Sections in this Agreement are for reference
purposes only and shall not be deemed to have any substantive effect.
SECTION 13.10 APPLICABLE LAW.
This Agreement and the Interim Servicing Agreement shall be construed in
accordance with the laws of the State of New York. The parties select as the
forum for any litigation relating to this Agreement and the Interim Servicing
Agreement, and acknowledge in connection therewith the exclusive jurisdiction
of, the U.S. District Court for the Southern District of New York and the state
courts of New York.
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SECTION 13.11 INCORPORATION OF EXHIBITS.
The Exhibits attached hereto shall be incorporated herein and shall be
understood to be a part hereof as though included in the body of this Agreement.
SECTION 13.12 COUNTERPARTS.
This Agreement may be executed in counterparts, each of which, when so
executed and delivered, shall be deemed to be an original and all of which,
taken together, shall constitute one and the same agreement.
SECTION 13.13 SEVERABILITY OF PROVISIONS.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the rights of the parties hereto.
SECTION 13.14 PUBLIC ANNOUNCEMENT.
No public release or statement concerning the subject matter of this
Agreement shall be made by either party without the express written consent and
approval of the other party.
SECTION 13.15 PURCHASER NOT TO RESIGN.
The Purchaser shall not assign this Agreement or resign from the
obligations and duties hereby imposed on it except by mutual consent of the
Seller and the Purchaser or upon the determination that its servicing duties
hereunder are no longer permissible under applicable law and such incapacity
cannot be cured by the Purchaser in which event the Purchaser may resign as
servicer. Any such determination permitting the resignation of the Purchaser as
servicer shall be evidenced by an Opinion of Counsel to such effect delivered to
the Seller which Opinion of Counsel shall be in form and substance acceptable to
the Seller and which shall be provided at the cost of the Purchaser. No such
resignation shall become effective until a successor shall have assumed the
Purchaser's responsibilities and obligations hereunder in the manner provided in
Section 13.17. Notwithstanding the foregoing, and, except as otherwise set forth
herein, Purchaser shall have the right to assign its rights under this Agreement
to any corporation or bank more than 50% of the voting stock of which is,
directly or indirectly, owned by Citigroup, Inc.; provided that such assignee
shall meet the criteria set forth in Section 13.16(b) hereof and that if such
assignment results in a successor servicer, Purchaser shall provide prompt
notice thereof to Seller prior to such succession.
SECTION 13.16 MERGER OR CONSOLIDATION OF THE PURCHASER.
(a) The Purchaser shall keep in full force and effect its existence,
rights and franchises as a corporation under the laws of the state
of its incorporation except
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as permitted herein, and shall obtain and preserve its qualification
to do business as a foreign entity in each jurisdiction in which
such qualification is or shall be necessary to protect the validity
and enforceability of this Agreement or any of the Mortgage Loans,
and to enable the Purchaser to perform its duties under this
Agreement.
(b) Any Person into which the Purchaser may be merged or consolidated,
or any corporation resulting from any merger, conversion or
consolidation to which the Purchaser shall be a party, or any Person
succeeding to the business of the Purchaser, shall be the successor
of the Purchaser 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 (i) an institution
whose deposits are insured by FDIC or a company whose business is
the origination and servicing of mortgage loans (ii) shall be a
Xxxxxx Xxx or Xxxxxxx Mac approved seller/servicer (iii) have a net
worth of at least $15,000,000 and (iv) Purchaser shall have provided
prompt notice thereof to Seller prior to such succession.
SECTION 13.17 SUCCESSOR TO PURCHASER.
(a) Prior to termination of the Purchaser's responsibilities and duties
under this Agreement pursuant to Sections (W) or (Y) of Exhibit M,
the Seller shall (i) succeed to and assume all of the Purchaser'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 Purchaser as servicer under this Agreement. In
connection with such appointment and assumption, the Seller may make
such arrangements for the reasonable compensation of such successor
out of payments on Mortgage Loans as it and such successor shall
agree. In the event that the Purchaser's duties, responsibilities
and liabilities as servicer under this Agreement should be
terminated pursuant to Sections (W) or (Y) of Exhibit M, the
Purchaser shall discharge such duties and responsibilities during
the period from the date it acquires knowledge of such termination
until the effective date thereof with the same degree of diligence
and prudence which it is obligated to exercise under this Agreement,
and shall take no action whatsoever that might impair or prejudice
the rights or financial condition of the Seller or such successor.
The termination of the Purchaser as servicer pursuant to Sections
(W) or (Y) of Exhibit M shall not become effective until a successor
shall be appointed pursuant to this Section 13.17.
(b) 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 Purchaser, with
like effect as if originally named as a party to this Agreement
provided, however, that such successor shall not assume, and the
Purchaser shall indemnify
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such successor for, any and all liabilities arising out of the
Purchaser's acts as servicer. Any termination of the Purchaser as
servicer pursuant to Sections (W) or (Y) of Exhibit M shall not
affect any claims that the Seller may have against the Purchaser
arising prior to any such termination or resignation or remedies
with respect to such claims.
(c) The Purchaser shall timely deliver to the successor the funds in the
related Custodial Account, REO Account and the related Escrow
Account and the servicing files and related documents and statements
held by it hereunder and the Purchaser shall account for all funds.
The Purchaser 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
Purchaser as servicer. The successor shall make arrangements as it
may deem appropriate to reimburse the Purchaser for amounts the
Purchaser actually expended as servicer pursuant to this Agreement
which the successor is entitled to retain hereunder and which would
otherwise have been recovered by the Purchaser pursuant to this
Agreement but for the appointment of the successor servicer.
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IN WITNESS WHEREOF, each of the undersigned parties to this Agreement has
caused this Agreement to be duly executed in its corporate name by one of its
duly authorized officers, all as of the date first above written.
XXXXXXX XXXXX MORTGAGE LENDING, INC.
Seller
By: ________________________________
Name: ______________________________
Title: _____________________________
CITIMORTGAGE, INC.
Purchaser
By: ________________________________
Name: ______________________________
Title: _____________________________
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EXHIBIT A
SCHEDULE OF MORTGAGE LOANS
Seller shall provide a trial balance type report of the Mortgage Loans
consisting of the following information in accordance with Section 7.09(a) of
the Agreement:
Seller Account Number
Borrower Name
Current Principal Balance
Current Escrow Balance
Current Buydown Balance
Current Unapplied Suspense Balance
Current Late Charge Balance
Current Total Payment
Current P&I Constant
Current T&I Constant
Current Paid-to-Date
Aggregate Current Principal Balance
Aggregate Current Escrow Balance
Aggregate Current Buydown Balance
Aggregate Current Unapplied Suspense Balance
Aggregate Current Late Charge Balance
Aggregate Current Total Payment
Aggregate P&I Constant
Aggregate T&I Constant
Total Number of Loans
A-1
EXHIBIT B-1
ESTIMATED PURCHASE PRICE COMPUTATION WORKSHEET
Unpaid Principal Balance as of [__, 2006] $__________
Excluding Delinquent Mortgages [(adjusted unpaid principal
Balance as of __, 2006]) (_______________)
Adjusted Unpaid Principal Balance $__________
Purchase Price Percentage
________% X__________
Net Estimated Purchase Price $__________
Deposit Percentage X 30%
Completed By: _________________ Phone Number: _____________
ATTACHMENT:
A list of Delinquent Mortgages as of [__, 2006].
The attachment shall include the unpaid principal balance of each Mortgage Loan,
the total Mortgage Loan count and the aggregate unpaid principal balance of the
Mortgage Loans.
FORWARDING INSTRUCTIONS
CitiMortgage, Inc.
0000 Xxxxxxxxxx Xxxxx
X'Xxxxxx, Xxxxxxxx 00000
Attn: Xxx Xxxxxxx
B-1
ATTACHMENT B-1-I
DELINQUENT MORTGAGE LOANS
AS OF __, 2006
The list of Mortgage Loans should include the unpaid principal balance of each
Delinquent Mortgage Loan as of the close of business on __, 2006, the total
number of Mortgage Loans and aggregate unpaid principal balance of all Mortgage
Loans on the list.
B-2
EXHIBIT B-2
PURCHASE PRICE COMPUTATION WORKSHEET
Unpaid Principal Balance as of Sale Date $__________
Excluding: (i) Delinquent Mortgages (not excluded
from the Purchase Price
paid on __, 2006) (__________)
(ii) Prepaid Mortgage Loans
(on or prior to ______, 2006) (__________)
(iii)$____ per Mortgage Loan 90 days or more past
due or in bankruptcy, foreclosure
or litigation (as of Transfer Date) (__________)
(iv) Mortgages Loans repurchased/removed
prior to the Transfer Date (__________)
Purchase Price Percentage
_________% X__________
Purchase Price $__________
Purchase Price due 1 Business Days after Transfer Date $__________
Completed By: _________________ Phone Number: _____________
ATTACHMENTS
I A list of Delinquent Mortgages as of the Transfer Date.
II A list of prepaid Mortgages Loans on or prior to ______, 2006.
III A list of Mortgage Loans 90 days or more past due or in bankruptcy,
foreclosure or litigation, as of the Transfer Date, and transferred to
Purchaser.
IV A list of repurchased/removed Mortgage Loans prior to the Transfer Date.
Each attachment shall include the unpaid principal balance of each Mortgage
Loan, the total Mortgage Loan count and the aggregate unpaid principal balance
of the Mortgage Loans.
FORWARDING INSTRUCTIONS
CitiMortgage, Inc.
0000 Xxxxxxxxxx Xxxxx
X'Xxxxxx, Xxxxxxxx 00000
Attn: Xxx Xxxxxxx
B-3
ATTACHMENT B-2-1
DELINQUENT MORTGAGE LOANS
AS OF TRANSFER DATE
The list of Mortgage Loans should include the unpaid principal balance of each
Mortgage Loan as of the Sale Date, the total number of Mortgage Loans and
aggregate unpaid principal balance of all Mortgage Loans on the list.
B-4
ATTACHMENT B-2-II
MORTGAGE LOANS PREPAID
PRIOR TO CLOSE OF BUSINESS _____, 2006
The list of Mortgage Loans should include the unpaid principal balance of each
Mortgage Loan as of the Sale Date, the total number of Mortgage Loans and
aggregate unpaid principal balance of all Mortgage Loans on the list.
B-5
ATTACHMENT B-2-III
MORTGAGE LOANS 90 DAYS OR MORE PAST DUE OR IN BANKRUPTCY,
FORECLOSURE OR LITIGATION AS OF THE TRANSFER DATE
The list of these Mortgage Loans should include the unpaid principal balance of
each such Mortgage Loan as of the Sale Date, the total number of such Mortgage
Loans and aggregate unpaid principal balance of all such Mortgage Loans on the
list.
B-6
ATTACHMENT B-2-IV
MORTGAGE LOANS REPURCHASED/REMOVED
PRIOR TO THE TRANSFER DATE
The list of these Mortgage Loans should include the unpaid principal balance of
each such Mortgage Loan as of the Sale Date, the total number of such Mortgage
Loans and aggregate unpaid principal balance of all such Mortgage Loans on the
list.
B-7
EXHIBIT C
TAPE SPECIFICATIONS
DATA FILE SPECIFICATIONS
Data File - Transfer Data Fields
Loan Number Interest Only Term
Principal & Interest Payment Convert Code
Escrow Payment Assumption Status
Original Loan Amount Number of Borrowers INSURANCE INFORMATION
Origination Date Escrow/ Non-Escrow
Term Closed (Months) Type of Insurance
Balloon Date Monthly Income Frequency
Maturity Date Monthly Payment Insurance Company Name
Note Rate (Current Rate) Monthly Obligation Insurance Company Address
Loan Type (Conv, Conv w/ Property Address Policy Number
MI, FHA, VA)
Late Charge Codes (e.g. % Property County Coverage Amount of Policy
PI or % PITI)
Late Charge Factor (%) Property City, State, Zip Code Disbursement Date
Grace Days Mailing Address Annual Premium
Appraised Date Mailing City, State, Zip Code TAX INFORMATION
Appraised Amount Interest Method Escrow/ Non-Escrow
Sales Price Prepayment Flag Type of Tax
1st Payment Due Date Prepay Pen Exp Date Frequency
Purpose LTV Name of Taxing Authority
Occupancy CLTV Address of Taxing Authority
Property Type ARM Type Next Tax Disbursement Due
Number of Units Adjustment Rate Cap Amount of Next Tax Payment
Approval Type (Docs Type) Maximum Interest Rate PMI INFORMATION
C-1
Program/Sub program Type Margin Escrow/ Non-Escrow
DU/LP System Minimum Interest Rate Certificate Number
DU/LP Decision Max Rate Adjustment Name of Insurance Carrier
DU/LP Case Number Next PI Change Date Monthly or Annual Product
Next Due Date Original Interest Rate Disbursement Date
Interest Pd to Date 1st Interest Rate Xxxxx Date Last Amount Paid
Current Principal Balance 1st Interest Change Maximum 80% LTV Date
Unapplied/Suspense Balance 1st Interest Change Minimum 78% LTV Date
Uncollected Late Charges MERS Identification Number Midpoint Date
Delinquency Expense MOM Flag MI Coverage Percentage
Escrow Balance Debt Ratio MI INFORMATION
NSF Fees FICO Score Escrow/ Non-Escrow
Buydown Balance Lien Type One Time MIP Payment
Original Buydown Balance Payments Per Year Date Last Paid to HUD
Buydown Interest Rate Amount Paid
Borrower Name (first & last) Amount of Monthly Payment
Co-borrower Name (first & Disbursement Date
last)
Borrower SSN Yearly Amount
Co-Borrower SSN Case/ Section Number
Borrower Gender ACH DRAFT DATA
Borrower Race Customer's Full Name
Borrower Ethnicity Bank Routing Number
Co-Borrower Gender Checking or Savings Indicator
Co-Borrower Race Checking or Savings Account #
Co-Borrower Ethnicity Additional Principal Payment
Amount
Primary Marital Status Interest Only Flag Draft Date
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EXHIBIT D
MORTGAGE LOAN DOCUMENTS
Servicing File Contents
Copies (unless otherwise indicated or unless an original is provided), of the
following servicing file documents should be delivered to Purchaser or
Purchaser's custodian (as directed by Purchaser):
1. Copies of Recorded Security Instrument - Mortgage/Deed of Trust - and
applicable riders and addendums (as available) and any assignments.
2. Copies of Notes, riders and allonges (as available).
3. Copies of MI Certificate (if applicable and as available).
4. Certified copy of the Power of Attorney (if applicable and as available).
5. Copies of Modification and Buydown Agreements (if applicable).
6. Copies of Documentation for any full or partial releases of security or
any waivers of liability.
7. Copies of Assumption documents.
8. Copies of Proof of borrower name change (death certificate, marriage
certificate, etc.), if applicable.
9. Truth in Lending and RESPA disclosures, including applicable agency (OTS,
OCC etc.) disclosures, or customer receipt of variable rate disclosures.
10. Closing statement (HUD-1) (including Addendum).
11. Escrow assignments (if required).
12. Name affidavit (if applicable).
13. Right of Rescission (if applicable).
14. Copy of entire credit package (as appropriate for loan type):
1) Application
2) VOE, VOD, VOC
3) Credit Report
4) Transmittal Summary
D-1
15. Proof of Claim for any Mortgage Loan in bankruptcy (which may be in a
separate file).
16. Any and all other origination, and closing documentation available but not
listed above.
17. Documentation for Delinquent Mortgage Loans for which loss mitigation,
foreclosure and/or bankruptcy action has been completed or is in process
as of the Transfer Date (which may be in a separate file).
18. Copies of Title insurance policy, Torrens certificate or Abstract and
Attorney's Opinion (original or copy with original signature, as
applicable) with applicable endorsements.
19. Outstanding document reports, one from Seller and one from Seller's
document custodian, including all documents to be delivered as part of the
Collateral File. For purposes of these reports defective documents should
be treated as outstanding documents.
D-2
EXHIBIT E
SCHEDULE OF SERVICING INFORMATION
Seller shall provide to Purchaser the following information with respect to each
Mortgage Loan in the format of the CPI master records, escrow payee, ACH layout,
ARM/current and ARM/historical data tapes, pool header, laser header and
investor header data tapes:
E-1
Account Number
APR Rate
Annual Interest Rate (Note Rate)
Application Date
Appraisal Date
Assumption Code
Assumption Date
Balloon Date
Billing Address
Borrower Name - Primary
Borrower Name - Secondary
Buydown Assist Amount
Buydown Balance
Buydown Balance Original
Census Tract
County Code
Escrow Balance Current
Escrow Current Monthly
(T&I Payment Amount)
Escrow Projected Monthly
(T&I Forecasted Payment Amount)
Exemption Flag (Withholding Tax)
First Payment Due Date
Flood Insurance (Required Code)
Foreign Mailing Address Code
GPM Plan Code
Grace Days
Interest Method
Investor Account Number
Investor Rate
Investor Service Fee
Land Value
Late Charge Balance
Late Charge Factor
Late Charge Minimum Amount
Late Charge Maximum Amount
Legal Description
Loan Term
Loan Type
Maturity Date
MI Rate
Number of Units
Original Loan Amount
Origination Date
Paid to Date or Next Due Date
Payoff Flag
Pool Insurance Commitment Expiration Date
Pool Insurance Commitment Number
Pool Insurance Company
Prepayment Penalty
Principal & Interest Payment Amount - Current
Principal & Interest Payment
Amount - Projected
Principal Balance Current
Product Code
Property Address
Property Appraisal Amount
Property Code
Property Type
Property Use Code
Replacement Cost
Sale Price
SMSA Code
Social Security Number Certification Indicator
Social Security Number Primary Borrower
Social Security Number Secondary Borrower
State Code
Sub Type
Suspense Balance
Telephone Number Primary Home
Telephone Number Work
Unapplied Funds Balance
Occur(1)-Restricted Escrow
Unapplied Funds Code Occur(1)-
Restricted Escrow
Unapplied Funds Balance
Occur(4)-Suspense Balance
Unapplied Funds Code Occur (4)-
Suspense Balance
Uncollected Credit Insurance
Year Built
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Escrow Data
Hazard Insurance
Hazard Insurance Company/Agent Expiration Date of Policy
Name and Payee Number Premium Amount Last Paid
Escrow Status (escrow/non escrow) Policy Number
Coverage Amount of Policy Pay Frequency
Sequence Codes
Flood Insurance
Flood Insurance Company/Agent Expiration Date of Policy
Name and Payee Number Premium Amount Last Paid
Escrow Status (escrow/non escrow) Policy Number
Coverage Amount of Policy Pay Frequency
Number of Months of Cushion
Mortgage Insurance
MI Company Name and Number Date Next Premium Due
MI Certificate Number Premium Amount Last Paid
FHA Anniversary Date FHA Premiums Paid to Date
Optional Insurance
Insurance Company Name/Payee Due Date of Next Disbursement
Number Premium Amount Last Paid
Policy Number Pay Frequency
Effective Date of Policy Expiration Date of Policy
Type of Coverage Coverage Amount of Policy
Taxes
Taxing Authority Name/Payee Number Due Date of Next Disbursement
Parcel Number or Related TIN Amount of Last Paid Tax Xxxx
Pay Frequency Type of Tax (county/city/
Escrow Status (escrow/non escrow) school) Number of Months of
Loan Level Stops and/or Flags Cushion
ACH Data
(in cartridge format)
Draft Date Billing Method
Transit/Routing Number Override Account Length
Billable Account Number Additional Amount
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MERS Data
MIN Number Original Recording Indicator
MOM Indicator Original Trustee
MERS Registration Date Assignment Recording Information
MERS Registration Status Assignee Name
Lien Type Assignor Name
Mortgage Recording Information County Name
Security Instrument Number MERS Quality Review Flag
Torrens Certificate Number Book Number
Recording Date Page Number
Original Beneficiary /Mortgagee Recording Number
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EXHIBIT F
ADDITIONAL INFORMATION/DOCUMENTATION TO BE DELIVERED
Unless originals are specified below, the following documents and information
may be provided in a mutually acceptable electronic format:
1. Flood & Hazard Insurance Policies and notice template letter with list of
flood and hazard insurance companies and/or agents attached containing the
prepared change endorsement requests with standard mortgagee clause
endorsed in favor of "CitiMortgage, Inc., it successors and/or assigns."
2. A tape cartridge(s) of full payment history, including all interest
credited to the Related Escrow Account for the prior two years, a tape
cartridge(s) of delinquency notes for the prior two years, and a tape
cartridge(s) of 2005 year-end borrower and mortgagor escrow analysis.
3. A loan level report of payoff and assumption statements and/or quotes made
within thirty (30) days prior to the Transfer Date.
4. A schedule enumerating each Mortgage Loan which requires special handling
with a statement of the reasons therefor and all relevant documentation
attached (for example, SSCRA).
5. End-of-month delinquency report listing delinquent accounts in each level
of delinquency (30, 60, 90 and 120+), bankruptcies and foreclosures for
each month-end for the two months occurring sixty (60) days prior to the
Transfer Date.
6. An example of the notices to MI companies.
7. List of all Mortgage Loans for which hazard or flood insurance has been
force placed including the hazard and flood insurance information
requested in Exhibit C regarding any such Mortgage Loans.
8. List of all Mortgage Loans with buydown agreements in effect.
9. List of all Mortgage Loans without hazard insurance or on a master binder.
10. List of all Mortgage Loans with canceled or expired hazard insurance
policies.
11. List of all Mortgage Loans with hazard insurance applications or binders.
12. With respect to Mortgage Loans with delinquent taxes, a copy of the
correspondence (i) Mortgagors requesting payment, (ii) tax collectors
and/or title companies (if applicable)
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and (iii) Mortgagors of Property Assessed with Others (WOPS) outlining
responsibility to obtain xxxx after property has been segregated.
13. List of all canceled MI policies identifying those with LTVs greater than
80%, if applicable.
14. List of all Mortgage Loans with analysis, disbursement or process/payment
stops or flags.
15. For all Mortgage Loans with money in suspense, a loan level listing
reflecting the dollar amount and corresponding mancode.
16. List of Mortgage Loans subject to backup withholding for interest on
escrows.
17. List of all accrued but unpaid late fees and other charges, as of the
Transfer Date, identified by Mortgage Loan and in the aggregate.
18. If balloon Mortgage Loans are included in the sale:
(a) List of all balloon Mortgage Loans maturing from the Transfer Date
to ninety (90) calendar days after the Transfer Date; and
(b) A copy of all customer notifications.
19. If Mortgage Loans in bankruptcy will be transferred:
(a) System screen prints reflecting loan level bankruptcy data;
(b) A copy of notification to the bankruptcy trustee advising that the
Mortgage Loan file has been transferred to Purchaser; and
(c) A loan level report reflecting corporate advance transactions along
with corresponding descriptions; totals should be provided for each
Mortgage Loan along with a grand total.
20. If delinquent Mortgage Loans will be transferred:
(a) Collection notes/comments: and
(b) A copy of each enforceable breach letter on any account that has not
been referred to foreclosure.
21. If Mortgage Loans in foreclosure will be transferred:
(a) A list of all Mortgage Loans with a foreclosure sale scheduled
within thirty (30) calendar days following the Transfer Date;
(b) System screen prints reflecting loan level foreclosure data;
(c) A copy of notification to the foreclosure attorney advising that the
Mortgage Loan file has been transferred to Purchaser; and
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(d) A loan level report reflecting corporate advance transactions along
with corresponding descriptions; totals should be provided for each
Mortgage Loan along with a grand total.
22. If Mortgage Loans in loss mitigation process will be transferred, copies
of system screen prints reflecting loan level loss mitigation information.
23. Any work-in-process documentation to encompass:
(a) Hazard and flood insurance loss drafts with files;
(b) Mortgage insurance claims;
(c) ACH requests not systematically set up;
(d) Assumptions; and
(e) Customer research/investigations, including two (2) years of payment
history for each open item.
24. Copies of all transfer notices required by Section 7.04 of the Agreement.
-----------
Unless otherwise indicated, any reference herein to "copy" shall be deemed to
include either "hard" copy, microfilm or microfiche.
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EXHIBIT G
OPTIONAL INSURANCE INFORMATION
Seller shall provide, if applicable:
1. A list of all Mortgage Loans for which life insurance, accidental death
insurance, or accident and health (disability) insurance has been purchased
identifying:
(a) prepaid premiums;
(b) pending claims (including a brief description of each claim);
(c) whether there is group or individual coverage;
(d) the name of the insurer;
(e) whether there is joint coverage;
(f) the amount of the premium for each type of insurance;
(g) the name(s) of the insured(s); and
(h) any other information relating to such insurance which Purchaser shall
reasonably request.
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EXHIBIT H
FORM OF
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
This is an Assignment, Assumption and Recognition Agreement (the
"Agreement") made this ______ day of __________, 200__, among (the "Assignor"),
________________ (the "Assignee") and CitiMortgage, Inc. ("CitiMortgage").
In consideration of the mutual promises contained herein the parties
hereto agree that the mortgage loans (the "Mortgage Loans") listed on Attachment
1 annexed hereto (the "Mortgage Loan Schedule") now serviced by CitiMortgage for
Assignor and its successors and assigns pursuant to the Mortgage Servicing
Purchase and Sale Agreement dated as of _____________, 2006, between Assignor
and CitiMortgage (the "Servicing Agreement") shall be subject to the terms of
this Agreement. Capitalized terms used herein but not defined shall have the
meanings ascribed to them in the Servicing Agreement.
ASSIGNMENT AND ASSUMPTION
1. Assignor hereby grants, transfers and assigns to Assignee all of the
right, title and interest of Assignor in the Mortgage Loans and, to the extent
of the Mortgage Loans, all of its right, title and interest in, to and under the
Servicing Agreement.
WARRANTIES
2. Assignor warrants and represents to, and covenants with, the Assignee
as of the date hereof that:
(a) Attached hereto as Attachment 2 is a true and accurate copy of the
Servicing Agreement which agreement is in full force and effect as of the date
hereof and the provisions of which have not been waived, amended or modified in
any respect, nor has any notice of termination been given thereunder;
(b) Assignor is the lawful owner of the Mortgage Loans with full right to
transfer the Mortgage Loans and any and all of its interests, rights and
obligations under the Servicing Agreement to the extent of the Mortgage Loans
free and clear from any and all claims and encumbrances whatsoever and upon the
transfer of the Mortgage Loans to Assignee as contemplated herein, Assignee
shall have good title to each and every Mortgage Loan, as well as any and all of
Assignee's interests, rights and obligations under the Servicing Agreement to
the extent of the Mortgage Loans, free and clear of all liens, claims and
encumbrances;
(c) There are no offsets, counterclaims or other defenses available to
Assignor with respect to the Mortgage Loans or the Servicing Agreement;
H-1
(d) Assignor has no knowledge of, and has not received notice of, any
waivers under, or any modification of, the Mortgage Loans;
(e) Assignor is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation, and has all requisite
power and authority to acquire, own and sell the Mortgage Loans;
(f) Assignor has full corporate power and authority to execute, deliver
and perform its obligations under this Agreement, and to consummate the
transactions set forth herein. The consummation of the transactions contemplated
by this Agreement is in the ordinary course of Assignor's business and will not
conflict with, or result in a breach of, any of the terms, conditions or
provisions of Assignor's charter or by-laws or any legal restriction, or any
material agreement or instrument to which Assignor is now a party or by which it
is bound, or result in the violation of any law, rule, regulation, order,
judgment or decree to which Assignor or its property is subject. The execution,
delivery and performance by Assignor of this Agreement and the consummation by
it of the transactions contemplated hereby, have been duly authorized by all
necessary corporate action on part of Assignor. This Agreement has been duly
executed and delivered by Assignor and, upon the due authorization, execution
and delivery by Assignee and CitiMortgage, will constitute the valid and legally
binding obligation of Assignor enforceable against Assignor in accordance with
its terms except as enforceability may be limited by bankruptcy, reorganization,
insolvency, moratorium or other similar laws now or hereafter in effect relating
to creditors' rights generally, and by general principles of equity regardless
of whether enforceability is considered in a proceeding in equity or at law; and
(g) No consent, approval, order or authorization of, or declaration,
filing or registration with, any governmental entity is required to be obtained
or made by Assignor in connection with the execution, delivery or performance by
Assignor of this Agreement, or the consummation by it of the transactions
contemplated hereby.
3. Assignee warrants and represents to, and covenants with, Assignor and
CitiMortgage that as of the date hereof:
(a) The Assignee is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation, and has
all requisite corporate power and authority to acquire, own and purchase the
Mortgage Loans;
(b) Assignee has full corporate power and authority to execute, deliver
and perform its obligations under this Agreement, and to consummate the
transactions set forth herein. The consummation of the transactions contemplated
by this Agreement is in the ordinary course of Assignee's business and will not
conflict with, or result in a breach of, any of the terms, conditions or
provisions of Assignee's charter or by-laws or any legal restriction, or any
material agreement or instrument to which Assignee is now a party or by which it
is bound, or result in the violation of any law, rule, regulation, order,
judgment or decree to which Assignee or its property is subject. The execution,
delivery and performance by Assignee of this Agreement and the consummation by
it of the transactions contemplated hereby, have been duly authorized by all
necessary corporate action on part of Assignee. This Agreement has been duly
executed and delivered by Assignee and, upon the due authorization, execution
and
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delivery by Assignor and CitiMortgage, will constitute the valid and legally
binding obligation of Assignee enforceable against Assignee in accordance with
its terms except as enforceability may be limited by bankruptcy, reorganization,
insolvency, moratorium or other similar laws now or hereafter in effect relating
to creditors' rights generally, and by general principles of equity regardless
of whether enforceability is considered in a proceeding in equity or at law;
(c) No consent, approval, order or authorization of, or declaration,
filing or registration with, any governmental entity is required to be obtained
or made by Assignee in connection with the execution, delivery or performance by
Assignee of this Agreement, or the consummation by it of the transactions
contemplated hereby; and
(d) Assignee agrees to be bound, as "Seller" (as such term is defined
under the Servicing Agreement), by all of the terms, covenants and conditions of
the Servicing Agreement and the Mortgage Loans, and from and after the date
hereof, the Assignee assumes for the benefit of each of Assignor and
CitiMortgage all of Assignor's obligations as Seller thereunder.
3. CitiMortgage warrants and represents to, and covenants with, Assignor and
Assignee that as of the date hereof:
(a) The CitiMortgage is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its incorporation;
(b) CitiMortgage has full corporate power and authority to execute,
deliver and perform its obligations under this Agreement, and to consummate the
transactions set forth herein. The consummation of the transactions contemplated
by this Agreement is in the ordinary course of CitiMortgage's business and will
not conflict with, or result in a breach of, any of the terms, conditions or
provisions of CitiMortgage's charter or by-laws or any legal restriction, or any
material agreement or instrument to which CitiMortgage is now a party or by
which it is bound, or result in the violation of any law, rule, regulation,
order, judgment or decree to which CitiMortgage or its property is subject. The
execution, delivery and performance by CitiMortgage of this Agreement and the
consummation by it of the transactions contemplated hereby, have been duly
authorized by all necessary corporate action on part of CitiMortgage. This
Agreement has been duly executed and delivered by CitiMortgage and, upon the due
authorization, execution and delivery by Assignor and Assignee, will constitute
the valid and legally binding obligation of CitiMortgage enforceable against
CitiMortgage in accordance with its terms except as enforceability may be
limited by bankruptcy, reorganization, insolvency, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights generally, and by
general principles of equity regardless of whether enforceability is considered
in a proceeding in equity or at law; and
(c) No consent, approval, order or authorization of, or declaration,
filing or registration with, any governmental entity is required to be obtained
or made by CitiMortgage in connection with the execution, delivery or
performance by CitiMortgage of this Agreement, or the consummation by it of the
transactions contemplated hereby.
H-3
RECOGNITION OF ASSIGNEE
4. From and after the date hereof, CitiMortgage shall recognize
Assignee as owner of the Mortgage Loans and will service the Mortgage Loans in
accordance with the Servicing Agreement, as if Assignee and CitiMortgage had
entered into a separate servicing agreement for the servicing of the Mortgage
Loans in the form of the Servicing Agreement, the terms of which are
incorporated herein by reference. It is the intention of Assignor, CitiMortgage
and Assignee that the Agreement will constitute a separate and distinct
servicing agreement, and the entire agreement, between CitiMortgage and Assignee
to the extent of the Mortgage Loans and shall be binding upon and for the
benefit of the respective successors and assigns of the parties hereto.
5. The Mortgage Loans shall be serviced by CitiMortgage for Assignee in
accordance with all applicable state, federal and local laws as well as in
conformity with the provisions of the applicable Mortgages and Mortgage Notes,
and pursuant to the terms and conditions of this Agreement.
MISCELLANEOUS
6. All demands, notices and communications related to the Mortgage Loans,
the Servicing Agreement and this Agreement shall be in writing and shall be
deemed to have been duly given if personally delivered at or mailed by
registered mail, postage prepaid, as follows:
(a) In the case of CitiMortgage,
CitiMortgage, Inc.
0000 Xxxxxxxxxx Xxxxx, XX 00,
X'Xxxxxx, Xxxxxxxx 00000
Attention: Capital Markets
with a copy to
Investor Reporting Department, MS 314
(b) In the case of Assignee
____________________
____________________
____________________
Attention: _________
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(c) In the case of Assignor,
____________________
____________________
____________________
Attention: _________
7. This Agreement shall be construed in accordance with the laws of the
State of New York, except to the extent preempted by Federal law, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
8. No term or provision of this Agreement may be waived or modified unless
such waiver or modification is in writing and signed by the party against whom
such waiver or modification is sought to be enforced.
9. This Agreement shall inure to the benefit of the successors and assigns
of the parties hereto. Any entity into which the Assignor, Assignee or
CitiMortgage may be merged or consolidated shall, without the requirement for
any further writing, be deemed the Assignor, Assignee or CitiMortgage,
respectively, hereunder.
10. This Agreement shall survive the conveyance of the Mortgage Loans, the
assignment of the Servicing Agreement to the extent of the Mortgage Loans by the
Assignor to the Assignee and the termination of the Servicing Agreement.
11. This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above written.
,
[ASSIGNOR]
By: ____________________________
Name: __________________________
Title: _________________________
,
[ASSIGNEE]
H-5
By: ____________________________
Name: __________________________
Title: _________________________
CITIMORTGAGE, INC.
By: ____________________________
Name: __________________________
Title: _________________________
H-6
EXHIBIT I
INTERIM SERVICING AGREEMENT
This Interim Servicing Agreement (the "Interim Servicing Agreement") is
entered into as of _________, 2006, by and between XXXXXXX XXXXX MORTGAGE
LENDING, INC., a Delaware corporation (the "Servicer"), and CITIMORTGAGE, INC.,
a New York corporation ("CMI").
WHEREAS, CMI and Servicer entered into a Mortgage Servicing Purchase and
Sale Agreement dated as of __________, 2006 (the "Sale Agreement") pursuant to
which CMI agreed to purchase from Servicer the right to service (the
"Servicing") residential mortgage loans (individually a "Mortgage Loan" or
collectively the "Mortgage Loans") owned by Servicer;
WHEREAS, title to the Servicing will be transferred to CMI on _________,
2006 (the "Sale Date"); and
WHEREAS, Servicer has agreed to service or cause to be serviced the
Mortgage Loans on behalf of CMI during the period between the Sale Date and the
Transfer Date (the "Interim Period") and the parties desire to provide the
mechanics of such servicing by Servicer;
NOW, THEREFORE, in consideration of the mutual covenants made herein and
for other good and valuable consideration, the sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 DEFINITIONS.
All terms used herein and defined in the Sale Agreement shall, unless
otherwise specified herein, be understood to have the meanings therein ascribed
to them.
ARTICLE II
MECHANICS OF INTERIM SERVICING
SECTION 2.01 SERVICING OF MORTGAGE LOANS.
Servicer shall service the Mortgage Loans on behalf of CMI during the
Interim Period as provided herein.
CMI acknowledges and agrees that the obligations of Servicer hereunder may
be performed on Servicer's behalf by the Current Servicer as a subservicer of
the Mortgage Loans;
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provided, that Servicer shall remain liable for the performance of such
obligations by the Current Servicer.
SECTION 2.02 ASSUMPTION OF DUTIES; STANDARD OF CARE.
Throughout the Interim Period, Servicer shall observe and perform all
warranties, representations, covenants and agreements with respect to the
Mortgage Loans and the Servicing required to be observed and performed by
Servicer under the Mortgage Loan. Servicer shall at all times service the
Mortgage Loans in accordance with all applicable statutes, regulations,
contractual provisions and prudent mortgage servicing practices, and shall
exercise the same standard of care that it exercises in the servicing of
mortgages for its own account. CMI grants to Servicer the right to exercise and
enjoy all of the rights, powers and privileges currently granted to Servicer.
SECTION 2.03 SERVICING FEE.
As consideration for servicing the Mortgage Loans during the Interim
Period, Servicer shall receive, beginning on _____ 1, 2006, an interim servicing
fee payable monthly in an amount equal to $7.50 per Mortgage Loan serviced as of
the Sale Date and subsequently as of the beginning of each reporting period (the
"Interim Servicing Fee"). The Interim Servicing Fee shall be pro-rated for any
partial reporting period for which Mortgage Loans are serviced by Servicer
pursuant to this Interim Servicing Agreement.
SECTION 2.04 REPORTING BY SERVICER.
During the Interim Period, Servicer shall provide to CMI all investor
reports provided by the Current Servicer to Servicer.
SECTION 2.05 PAYMENT OF FEES AND ADVANCES.
During the Interim Period, Servicer shall promptly pay any advances
required for the various Related Escrow Accounts, all MI, hazard and flood
insurance premiums and real estate taxes. If adequate funds are not held in
escrow to pay, when due, real estate taxes or insurance premiums on any property
securing a Mortgage Loan, Servicer shall advance sufficient funds to cover any
such deficiency in a manner to ensure timely payment of such taxes or insurance
premiums.
SECTION 2.06 ESCROW.
During the Interim Period, Servicer shall continue to maintain all Related
Escrow Accounts in connection with servicing the Mortgage Loans, and shall be
entitled to retain any earnings or other income received with respect thereto,
subject to the express requirements of the terms of the Mortgages and applicable
law. Servicer shall prepare and submit IRS form 1099s for any interest credited
by Servicer to the Related Escrow Accounts through the Transfer Date.
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SECTION 2.07 SERVICER TO RETAIN LATE FEES AND SIMILAR ITEMS.
Servicer shall retain all late payment fees, NSF fees, assumption fees,
prepayment penalties and all other incidental fees related to servicing the
Mortgage Loans paid by the Mortgagors during the Interim Period. As of Transfer
Date, all claims to, or interest in, accrued but uncollected late fees will
transfer to CMI.
ARTICLE III
TERMINATION
SECTION 3.01 CMI RIGHTS.
Should Servicer at any time during the term of this Interim Servicing
Agreement materially default in its obligations hereunder and such default shall
not be cured within ten (10) Business Days following written notice thereof to
Servicer, then with respect to the Servicing of the Mortgage Loans not yet
transferred, CMI may immediately terminate this Interim Servicing Agreement and
accelerate performance of the provisions of the Sale Agreement to require
transfer of the Servicing as soon as practicable, provided all necessary
approvals can be obtained.
SECTION 3.02 DAMAGES.
CMI shall have the right at any time to seek and recover from Servicer any
damages or losses suffered by CMI as a result of any failure by Servicer to
observe or perform in any material respect any covenants or agreements contained
herein or in the Sale Agreement.
SECTION 3.03 TERMINATION UPON TRANSFER.
This Interim Servicing Agreement shall terminate with respect to the
Servicing or any portion thereof transferred on the Transfer Date.
ARTICLE IV
INDEMNIFICATION
SECTION 4.01 INDEMNIFICATION BY SERVICER.
Servicer agrees to indemnify and hold CMI harmless from any liability,
claim, loss or damage to CMI directly or indirectly resulting from Servicer's
failure to observe and perform in any material respect any or all of Servicer's
covenants, agreements, warranties or representations contained in this Interim
Servicing Agreement, including, without limitation, any liability, claim, loss
or damage resulting from litigation, proceedings, governmental investigations,
orders, injunctions or decrees pending or threatened as of the Transfer Date
involving any such failure.
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SECTION 4.02 INDEMNIFICATION BY CMI.
CMI agrees to indemnify and hold Servicer harmless from any liability,
claim, loss or damage to Servicer directly or indirectly resulting from CMI's
failure to observe and perform in any material respect any or all of CMI's
covenants, agreements, warranties or representations contained in this Interim
Servicing Agreement or in the Sale Agreement, including, without limitation, any
liability, claim, loss or damage resulting from litigation, proceedings,
governmental investigations, orders, injunctions or decrees involving any such
failure.
ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS OF CMI
CMI warrants and represents to, and covenants and agrees with, Servicer as
follows:
SECTION 5.01 AUTHORITY AND CAPACITY.
The execution, delivery and performance by CMI of this Interim Servicing
Agreement has been and will remain duly and validly authorized by all necessary
corporate action. This Interim Servicing Agreement constitutes and will continue
to constitute a legal, valid and enforceable obligation of CMI, except as the
same may be limited by bankruptcy, insolvency, reorganization or other laws
relating to or affecting the enforcement of creditors' rights and by general
equity principles.
SECTION 5.02 ASSISTANCE.
CMI shall cooperate with and assist Servicer as reasonably requested by
Servicer, in carrying out Servicer's covenants, agreements, duties and
responsibilities under the Sale Agreement and this Interim Servicing Agreement
and in connection therewith shall execute and deliver all such papers, documents
and instruments as may be necessary and appropriate in furtherance thereof.
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ARTICLE VI
REPRESENTATIONS AND WARRANTIES AND COVENANTS OF SERVICER
Servicer warrants and represents to, and covenants and agrees with, CMI as
follows:
SECTION 6.01 AUTHORITY AND CAPACITY.
The execution, delivery and performance by Servicer of this Interim
Servicing Agreement has been and will remain duly and validly authorized by all
necessary corporate action. This Interim Servicing Agreement constitutes and
will continue to constitute a legal, valid and enforceable obligation of
Servicer, except as the same may be limited by bankruptcy, insolvency,
reorganization or other laws relating to or affecting the enforcement of
creditors' rights and by general equity principles.
SECTION 6.02 NOTICE OF BREACH.
Servicer shall notify CMI within two (2) Business Days of any failure on
its part to observe and perform in any material respect any warranty,
representation, covenant or agreement required to be observed and performed by
it as Servicer.
SECTION 6.03 LICENSES.
Servicer has and shall maintain all approvals or licenses required to be
held by it to perform its obligations pursuant to this Interim Servicing
Agreement and the Sale Agreement.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.01 NOTICES.
All notices, requests, demands and other communications which are required
or permitted to be given under this Interim Servicing Agreement shall be in
writing and shall be deemed to have been given if personally delivered or sent
by registered or certified mail, return receipt requested, postage prepaid or by
prepaid overnight delivery service:
(a) If to Servicer, to:
Xxxxxxx Xxxxx Mortgage Lending Inc.
4 World Financial Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Asset Management
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(b) If to Purchaser, to:
CitiMortgage, Inc.
0000 Xxxxxxxxxx Xxxxx
X'Xxxxxx, Xxxxxxxx 00000
Attn: Capital Markets
SECTION 7.02 WAIVERS.
Either Servicer or CMI may, by written notice to the other:
(a) Waive compliance with any of the terms, conditions or covenants
required to be complied with by the other hereunder; and
(b) Waive or modify performance of any of the obligations of the other
hereunder.
The waiver by either party hereto of a breach of any provision of this
Interim Servicing Agreement shall not operate or be construed as a waiver of any
other subsequent breach.
SECTION 7.03 ENTIRE AGREEMENT; AMENDMENT.
This Interim Servicing Agreement, the Sale Agreement and the Offer Letter
constitute the entire agreement between the parties with respect to servicing of
the Mortgage Loans during the Interim Period and supersedes all prior agreements
with respect thereto. In the case of direct conflict between the provisions of
the Sale Agreement and this Interim Servicing Agreement, the Sale Agreement
shall govern. This Interim Servicing Agreement may be amended and any provision
hereof waived, but, only in writing signed by the party against whom such
enforcement is sought.
SECTION 7.04 BINDING EFFECT.
This Interim Servicing Agreement shall inure to the benefit of and be
binding upon the parties hereto and their successors and assigns.
SECTION 7.05 HEADINGS.
Headings of the Articles and Sections in this Interim Servicing Agreement
are for reference purposes only and shall not be deemed to have any substantive
effect.
SECTION 7.06 APPLICABLE LAW.
This Agreement shall be construed in accordance with the laws of the State
of New York. The parties select as the forum for any litigation relating to this
Agreement, and acknowledge in connection therewith the exclusive jurisdiction
of, the U.S. District Court for the Southern District of New York and the state
courts of New York.
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SECTION 7.07 RELATIONSHIP OF PARTIES.
Nothing herein contained shall be deemed or construed to create a
partnership or joint venture between the parties. In performing its duties and
responsibilities hereunder, the Servicer shall act as an independent contractor
and not as an agent of CMI. The Servicer shall have full control of all of its
acts, doings, proceedings, relating to or requisite in connection with the
discharge of its duties and responsibilities under this Interim Servicing
Agreement.
SECTION 7.08 COUNTERPARTS.
This Interim Servicing Agreement may be executed in counterparts, each of
which, when so executed and delivered, shall be deemed to be an original and all
of which, taken together, shall constitute one and the same agreement.
SECTION 7.09 SEVERABILITY OF PROVISIONS.
If any one or more of the covenants, agreements, provisions or terms of
this Interim Servicing Agreement shall be for any reason whatsoever held
invalid, then such covenants, agreements, provisions or terms shall be deemed
severable from the remaining covenants, agreements, provisions or terms of this
Interim Servicing Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Interim Servicing Agreement or of
the rights of the parties hereto.
SECTION 7.10 ASSIGNMENT.
Seller may not assign or subcontract all or any part of this Interim
Servicing Agreement, or any interest herein, without the prior written consent
of Purchaser. This Interim Servicing Agreement and all rights, obligations and
responsibilities hereunder may be assigned by Purchaser, without consent of
Seller, to any corporation or bank more than 50% of the voting stock of which
is, directly or indirectly, owned by Citigroup, Inc.; provided that such
assignee shall meet the criteria set forth in Section 13.16(b) of the Sale
Agreement.
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IN WITNESS WHEREOF, the parties have executed this Interim Servicing
Agreement as of the date and year first above written.
XXXXXXX XXXXX MORTGAGE LENDING, INC.
By: _________________________________
Name: _______________________________
Title: ______________________________
CITIMORTGAGE, INC.
By: _________________________________
Name: _______________________________
Title: ______________________________
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EXHIBIT J
RESERVED
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EXHIBIT K
WHEN RECORDED RETURN TO:
CitiMortgage, Inc.
P. O. Box XXXX
St. Louis, MO 63179-XXXX
POWER OF ATTORNEY
___________, a corporation duly constituted, registered and in existence in
accordance with the laws of the state of _______, with its principal place of
business located at _______________, hereby constitutes and appoints
CITIMORTGAGE, INC. ("CMI"), a New York corporation, its true and lawful
Attorney-In-Fact, and in its name, place and stead and for its use and benefits
hereby authorizes the aforesaid Attorney-In-Fact by and through any officers
appointed by the Board of Directors of CMI to execute and acknowledge in writing
or by facsimile stamp all documents customarily and reasonably necessary and
appropriate for the tasks described in items (i) through (vi) below. This Power
of Attorney is being issued in connection with the sale and transfer to CMI of
the rights and responsibilities to service certain mortgage loans (the "Loans")
pursuant to that Mortgage Servicing Purchase and Sale Agreement, dated as of
_____, 2006, between CMI and _______. These Loans are comprised of Mortgages,
Deeds of Trust, Deeds to Secure Debt and other forms of Security Instruments
(collectively the "Security Instruments") and the Notes secured thereby.
(i) The Substitution of Trustee(s) in Deeds of Trust and/or Deeds to Secure Debt
in the name of the undersigned,
(ii) The Satisfaction, Assignment and/or Release of Security Instruments in the
name of the undersigned and/or the issuance of Deeds of Reconveyance upon
payment in full and/or discharge of the Notes secured thereby,
(iii) The Modification and/or Partial Release of Security Instruments in the
name of the undersigned,
(iv) The Assumption of Security Instruments in the name of the undersigned and
the Notes secured thereby,
(v) The endorsement on behalf of the undersigned of all checks, drafts and/or
other negotiable instruments made payable to the undersigned, and
(vi) The right to collect, accelerate, initiate suit on and/or foreclose all
Loans.
The undersigned gives to said Attorney-In-Fact full power and authority to do
and perform all and every act and thing and whatsoever is necessary and proper
to be done by authority hereof as fully, for all intents and purposes, as it,
the undersigned, might or could do and hereby ratifying and confirming all that
said Attorney-In-Fact shall lawfully do or cause to be done by authority hereof.
Third parties without actual notice may rely upon the power granted to said
Attorney-In-Fact under this Power of Attorney and may assume that, upon the
exercise of such power, all conditions precedent to such exercise of power have
been satisfied and this Power of Attorney has not been revoked unless an
Instrument of Revocation has been recorded. This Power of Attorney shall expire
on April 1, 2007.
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IN WITNESS WHEREOF, _____________________ has caused these presents to be
signed by its _____________________ and be impressed with its seal on this day
of , 200_ at the office in ________, United States of America.
__________________________ ____________________________________
Witness Name: ______________________________
__________________________ Title: _____________________________
Witness
__________________________ ____________________________________
Attest: Name: ______________________________
Title: _____________________________
(SEAL)
State of _________________ )
) ss.
County of ________________ )
On this _____ day of ____________________, 2006, before me, a Notary Public in
and for the State, personally appeared ________________, known to me to be a
_____________________ of ____________________ and ___________________, known to
me to be _________ of ________________, the corporation that executed the within
instrument, and also known to me to be the persons who executed said instrument
on behalf of said corporation and acknowledged to me that such corporation
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
_________________________
Notary Public
My Commission Expires:
(SEAL)
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EXHIBIT L-1
SERVICING FILE SHIPMENT
Any dialogue regarding the shipping of servicing files should be directed to
Xxxxxx Xxxxxxxx at (000) 000-0000.
ON EACH OF THE FILE SHIPPING DATES, SELLER MUST PROVIDE THE ESTIMATED NUMBER OF
BOXES, THE SHIPPING DATE, THE EXPECTED ARRIVAL DATE, AND THE CARRIER.
The servicing files should be shipped to:
CitiMortgage, Inc.
0000 Xxxxxxxxxx Xxxxx
X'Xxxxxx, XX 00000-0000
Contact: Xxxxxx Xxxxxxxx
Phone: (000) 000-0000
Email: xxxxxx.xxxxxxxx@xxxxxxxxx.xxx
BOXES/FILES:
- Files should be packed in standard double-walled bankers boxes -
approximate size 12 -1/2" x 10" x 15 -1/2". All four walls of each banker
box must be double-walled. Preferably, the boxes should have detachable
lids. All documents must be in legal size file folders in good repair,
clearly labeled with the Current Servicer's account number.
- Files should be packed in numerical order by Purchaser's account number
(Purchaser's allocated account number range shall be assigned sequentially
by Seller based on Seller's terminal digit order). Boxes should not be
overstuffed.
- Each box should be marked with the box number. Number each box
sequentially 1 of X, 2 of X, etc., with X being the total number of boxes.
- Place box number in the bottom right corner of the end (short side) of the
box. Do not label boxes on the top/lid.
- Boxes should be in good repair, they should not be torn, or have writing
on them other than the box number and information pertinent to shipping.
- Boxes should be placed on pallets in sequential order, for example, boxes
1 through 40 should be on one pallet and boxes 41 through 80 should be
placed on the second pallet, etc. Pallets should be shrink-wrapped. We do
not require each box to be taped closed when the entire pallet is
shrink-wrapped. Each pallet should contain no more than 40 boxes. If
palletizing boxes is not possible, due to carrier requirements, please
contact Xxxxx Xxxx for alternative packing instructions.
- Carrier must provide inside delivery. Pallets cannot be dropped off at the
loading dock. Carrier must provide all labor for inside delivery.
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INVENTORY LIST:
- An electronic inventory data file (preferably Excel format) should be
prepared for the shipment and e-mailed to xxxxxx.xxxxxxxx@xxxxxxxxx.xxx.
The data file should identify the account number and box number for each
loan file shipped. It is not acceptable to provide the account number
ranges within each box. The account numbers should be listed on the
inventory in the same order that they appear in the box.
One hardcopy of the complete inventory should be delivered to CitiMortgage with
the physical shipment of boxes.
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EXHIBIT M
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
(A) PURCHASER TO ACT AS SERVICER.
Purchaser shall service and administer the Mortgage Loans in accordance
with this Agreement and Customary Servicing Procedures and shall have full power
and authority, acting alone or through the utilization of a Subservicer or a
Subcontractor to do or cause to be done any and all things in connection with
such servicing and administration which Purchaser may deem necessary or
desirable and consistent with the terms of this Agreement. Purchaser may perform
its servicing responsibilities through agents or independent contractors, but
shall not thereby be released from any of its responsibilities hereunder, and
Purchaser shall diligently pursue all of its rights against such agents or
independent contractors.
Consistent with the terms of this Agreement, Purchaser may waive, modify
or vary any term of any Mortgage Loan or consent to the postponement of strict
compliance with any such term or in any manner grant indulgence to any
Mortgagor; provided, however, that Purchaser shall not permit any modification
with respect to any Mortgage Loan that would change the mortgage interest rate
or the monthly payment amount, defer or forgive the payment of any principal or
interest, change the outstanding principal amount (except for actual payments of
principal), make any future advances or extend the final maturity date on such
Mortgage Loan. Without limiting the generality of the foregoing, Purchaser in
its own name or in the name of a subservicer is hereby authorized and empowered
by Seller when Purchaser believes it appropriate and reasonable in its best
judgment, to execute and deliver, on behalf of itself and Seller, all
instruments of satisfaction or cancellation, or of partial or full release,
discharge and all other comparable instruments, with respect to the Mortgage
Loans and the Mortgaged Properties and to institute foreclosure proceedings or
obtain a deed-in-lieu of foreclosure so as to convert the ownership of such
properties, and to hold or cause to be held title to such properties, on behalf
of Seller pursuant to the provisions of this Exhibit. Purchaser shall make all
required Servicing Advances and shall service and administer the Mortgage Loans
in accordance with applicable state and federal law and shall provide to the
Mortgagors any reports required to be provided to them thereby. Seller shall
furnish to Purchaser and any subservicer any powers of attorney and other
documents reasonably necessary or appropriate to enable Purchaser and any
subservicer to carry out their servicing and administrative duties under this
Agreement.
(B) LIQUIDATION OF MORTGAGE LOANS.
In the event that any payment due under any Mortgage Loan is not paid when
the same becomes due and payable, or in the event the Mortgagor fails to perform
any other covenant or obligation under the Mortgage Loan and such failure
continues beyond any applicable grace period, Purchaser shall take such action
as it shall deem to be in the best interest of Seller. In the event that any
payment due under any Mortgage Loan remains delinquent for a period of 120 days
or more, Purchaser shall commence foreclosure proceedings in accordance with its
customary and usual foreclosure procedures. In such connection, Purchaser shall
from its own funds make all necessary and proper Servicing Advances through
final disposition but only to
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the extent that Purchaser shall determine, in its good faith judgment, that the
amount of a proposed Servicing Advance is recoverable. Purchaser shall be
reimbursed for all Servicing Advances in accordance with this Agreement.
(C) COLLECTION OF MORTGAGE LOAN PAYMENTS.
Continuously from the date hereof until the principal and interest on all
Mortgage Loans are paid in full, Purchaser will proceed diligently, in
accordance with this Agreement, to collect all payments due under each of the
Mortgage Loans when the same shall become due and payable. Further, Purchaser
will take special care in ascertaining and estimating annual ground rents,
taxes, assessments, water rates, fire and hazard insurance premiums, mortgage
insurance premiums, and all other charges that, as provided in any Mortgage,
will become due and payable to the end that the installments payable by the
Mortgagors will be sufficient to pay such charges as and when they become due
and payable.
(D) ESTABLISHMENT OF CUSTODIAL ACCOUNT; DEPOSITS IN CUSTODIAL ACCOUNT.
Purchaser shall segregate and hold all funds collected and received
pursuant to each Mortgage Loan separate and apart from any of its own funds and
general assets and shall establish and maintain one or more Custodial Accounts
(collectively, the "Custodial Account"), in the form of time deposit or demand
accounts, which may be interest bearing, titled "[name of Purchaser] in trust
for Seller - Adjustable Rate Mortgage Loans". Such Custodial Account shall be
established with Citibank or, at the option of Purchaser, with another
commercial bank, a savings bank or a savings and loan association in accordance
with Section (I) of this Exhibit.
Purchaser shall deposit in the Custodial Account on a daily basis and
retain therein the following payments and collections received or made by it
subsequent to the Transfer Date (other than in respect of principal and interest
on the Mortgage Loans due on or before the Transfer Date):
(a) all payments on account of principal, including principal
prepayments, on the Mortgage Loans;
(b) all payments on account of interest on the Mortgage Loans adjusted
to the Mortgage Loan Remittance Rate;
(c) all Liquidation Proceeds;
(d) all proceeds received by Purchaser under any title, hazard, private
mortgage guaranty or other insurance policy other than proceeds to
be held in the Escrow Account and applied to the restoration or
repair of the Mortgaged Property or released to the Mortgagor in
accordance with Customary Servicing Procedures;
(e) all awards or settlements in respect of condemnation proceedings or
eminent domain affecting any Mortgaged Property which are not
released to the Mortgagor in accordance with Customary Servicing
Procedures;
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(f) all payments on account of prepayment penalties on the Mortgage
Loans;
(g) any amount required to be deposited in the Custodial Account
pursuant to this Exhibit;
(h) with respect to each full or partial Principal Prepayment any
amounts to the extent that collections of interest at the Mortgage
Loan Remittance Rate are less than one (1) full month's interest at
the applicable Mortgage Loan Remittance Rate ("Prepayment Interest
Shortfalls"), such Prepayment Interest Shortfalls will be deposited
by Purchaser to the extent of its aggregate Servicing Fee received
with respect to the related Due Period.
The foregoing requirements for deposit in the Custodial Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of late payment charges and assumption
fees need not be deposited by Purchaser in the Custodial Account. Any interest
or earnings on funds deposited in the Custodial Account by the depository
institution shall accrue to the benefit of Purchaser and Purchaser shall be
entitled to retain and withdraw such interest from the Custodial Account.
(E) WITHDRAWALS FROM THE CUSTODIAL ACCOUNT.
Purchaser shall, from time to time, withdraw funds from the Custodial
Account for the following purposes:
(a) to make payments to Seller in the amounts and in the manner provided
for in this Exhibit;
(b) to temporarily reimburse itself for advances of Purchaser funds made
pursuant to Section O of this Exhibit, Purchaser's right to
permanently reimburse itself pursuant to this subclause (b) being
limited to amounts received on the related Mortgage Loan which
represent payments of principal and/or interest respecting which any
such advance was made;
(c) to reimburse itself first for all unreimbursed Servicing Advances,
second for unreimbursed advances of Purchaser funds made pursuant to
this Exhibit, and third for any unpaid Servicing Fees, Purchaser's
right to reimburse itself pursuant to this subclause (c) with
respect to any Mortgage Loan being limited to related Liquidation
Proceeds, condemnation proceeds, amounts representing proceeds of
insurance policies covering the related Mortgaged Property and such
other amounts as may be collected by Purchaser from the Mortgagor or
otherwise relating to the Mortgage Loan, it being understood that,
in the case of any such reimbursement, Purchaser's right thereto
shall be prior to the rights of Seller;
(d) to reimburse itself for all unreimbursed Servicing Advances,
advances of Purchaser funds made pursuant to this Exhibit and unpaid
Servicing Fees to the
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extent that such amounts are nonrecoverable by Purchaser pursuant to
subclause (c) above, and to reimburse itself for such amounts to the
extent that such amounts are not recovered from the disposition of
REO Property this Exhibit;
(e) to reimburse itself for subsequent trailing bills related to a
previously disposed of REO Property in which distribution of the net
cash proceeds has occurred;
(f) to reimburse itself for expenses incurred by and reimbursable to it
pursuant to this Exhibit;
(g) to pay to itself any interest earned on funds deposited in the
Custodial Account, such withdrawal to be made monthly not later than
the Remittance Date;
(h) to withdraw any amounts inadvertently deposited in the Custodial
Account;
(i) to clear and terminate the Custodial Account upon the termination of
this Agreement;
(j) to withdraw Service Fees to the extent deposited therein; and
(k) to reimburse itself for payments remitted or advances made for which
there has been a reduction in the amount of interest collectible for
such related Prepayment Period as a result of the Servicemembers'
Civil Relief Act or any similar state law.
On each Remittance Date, Purchaser shall withdraw all funds from the
Custodial Account except for those amounts which Purchaser is not obligated to
remit on such Remittance Date. Purchaser may use such withdrawn funds only for
the purposes described in this Exhibit.
(F) ESTABLISHMENT OF ESCROW ACCOUNT; DEPOSITS IN ESCROW ACCOUNT.
Purchaser 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 (collectively, the "Escrow Account"), in
the form of time deposit or demand accounts, which may be interest bearing. The
Escrow Account shall be established with Citibank or, at the option of
Purchaser, another commercial bank, a savings bank or a savings and loan
association in accordance with Section (I) of this Exhibit. In any case, the
Escrow Account shall be insured by the FDIC in a manner which shall provide
maximum available insurance thereunder and which may be drawn on by Purchaser.
Purchaser shall deposit in the Escrow Account on a daily basis, and retain
therein: (a) all Escrow Payments collected on account of the Mortgage Loans, for
the purpose of effecting timely payment of any such items as required under the
terms of this Exhibit, and (b) all amounts representing proceeds of any hazard
insurance policy which are to be applied to the restoration or repair of any
Mortgaged Property. Purchaser shall make withdrawals therefrom only in
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accordance with this Exhibit. As part of its servicing duties, Purchaser or the
Subservicer shall pay to the Mortgagors interest on funds in the Escrow Account,
to the extent required by law.
(G) WITHDRAWALS FROM ESCROW ACCOUNT.
Withdrawals from the Escrow Account shall be made by Purchaser only (a) to
effect timely payments of ground rents, taxes, assessments, water rates,
mortgage insurance premiums, fire and hazard insurance premiums or other items
constituting Escrow Payments for the related Mortgage, (b) to reimburse
Purchaser for any Servicing Advance made by Purchaser pursuant to this Exhibit
with respect to a related Mortgage Loan, but only from amounts received on the
related Mortgage Loan which represent late payments or collections of Escrow
Payments thereunder, (c) to refund to any Mortgagor any funds found to be in
excess of the amounts required under the terms of the related Mortgage Loan, (d)
for transfer to the Custodial Account upon default of a Mortgagor or in
accordance with the terms of the related Mortgage Loan and if permitted by
applicable law, (e) for application to restore or repair of the Mortgaged
Property, (f) to pay to the Mortgagor, to the extent required by law, any
interest paid on the funds deposited in the Escrow Account, (g) to pay to itself
any interest earned on funds deposited in the Escrow Account (and not required
to be paid to the Mortgagor), such withdrawal to be made monthly not later than
the Remittance Date or (h) to clear and terminate the Escrow Account upon the
termination of this Agreement.
(H) PAYMENT OF TAXES, INSURANCE AND OTHER CHARGES.
With respect to each Mortgage Loan, Purchaser shall maintain accurate
records reflecting the status of ground rents, taxes, assessments, water rates
and other charges which are or may become a lien upon the Mortgaged Property and
the status of private mortgage guaranty insurance premiums and fire and hazard
insurance coverage and shall obtain, from time to time, all bills for the
payment of such charges (including renewal premiums) and shall effect payment
thereof prior to the applicable penalty or termination date and at a time
appropriate for securing maximum discounts allowable, employing for such purpose
deposits of the Mortgagor in the Escrow Account which shall have been estimated
and accumulated by Purchaser in amounts sufficient for such purposes, as allowed
under the terms of the Mortgage or applicable law. To the extent that a Mortgage
does not provide for Escrow Payments, Purchaser shall determine that any such
payments are made by the Mortgagor at the time they first become due. Purchaser
assumes full responsibility for the timely payment of all such bills and shall
effect timely payments of all such bills irrespective of each Mortgagor's
faithful performance in the payment of same or the making of the Escrow Payments
and shall make advances from its own funds to effect such payments.
The Purchaser shall maintain in full force and effect, a Primary Insurance
Policy, issued by a Qualified Insurer, with respect to each Mortgage Loan for
which such coverage is required. Such coverage shall be maintained until the
Loan-to-Value Ratio of the related Mortgage Loan is reduced to that amount for
which Xxxxxx Xxx no longer requires such insurance to be maintained. The
Purchaser will not cancel or refuse to renew any Primary Insurance Policy in
effect on the related Transfer Date that is required to be kept in force under
this Agreement unless a replacement Primary Insurance Policy for such cancelled
or non- renewed policy is
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obtained from and maintained with a Qualified Insurer. The Purchaser shall not
take any action which would result in non-coverage under any applicable Primary
Insurance Policy of any loss which, but for the actions of the Purchaser, would
have been covered thereunder. In connection with any assumption or substitution
agreement entered into or to be entered into pursuant to this Exhibit, the
Purchaser shall promptly notify the insurer under the related Primary Insurance
Policy of such assumption or substitution of liability in accordance with the
terms of such policy and shall take all actions which may be required by such
insurer as a condition to the continuation of coverage under the Primary
Insurance Policy. If such Primary Insurance Policy is terminated as a result of
such assumption or substitution of liability, the Purchaser shall obtain a
replacement Primary Insurance Policy as provided above.
In connection with its activities as servicer, the Purchaser agrees to
prepare and present, on behalf of itself, and the Seller, claims to the insurer
under any Primary Insurance Policy in a timely fashion in accordance with the
terms of such policies and, in this regard, to take such action as shall be
necessary to permit recovery under any Primary Insurance Policy respecting a
defaulted Mortgage Loan. Any amounts collected by the Purchaser under any
Primary Insurance Policy shall be deposited in the related Custodial Account,
subject to withdrawal pursuant to this Exhibit.
(I) TRANSFER OF ACCOUNTS.
Purchaser may transfer the Custodial Account or the Escrow Account to a
depository institution other than Citibank from time to time; provided, that if
such depository institution is not an affiliate of Purchaser such transfer shall
be made only upon obtaining the consent of Seller, which consent shall not be
unreasonably withheld. In any case, the Custodial Account and Escrow Account
shall be Eligible Accounts.
(J) MAINTENANCE OF HAZARD INSURANCE.
Purchaser shall cause to be maintained for each Mortgage Loan fire and
hazard insurance with extended coverage customary in the area where the
Mortgaged Property is located, in an amount which is at least equal to the
lesser of (a) the full insurable value of the Mortgaged Property or (b) the
greater of (i) the outstanding principal balance owing on the Mortgage Loan and
(ii) an amount such that the proceeds of such insurance shall be sufficient to
avoid the application to the Mortgagor or loss payee of any coinsurance clause
under the policy. If the Mortgaged Property is in an area identified in the
Federal Register by the Federal Emergency Management Agency as having special
flood hazards (and such flood insurance has been made available) Purchaser will
cause to be maintained a flood insurance policy meeting the requirements of the
current guidelines of the Federal Insurance Administration with a generally
acceptable insurance carrier, in an amount representing coverage not less than
the least of (a) the outstanding principal balance of the Mortgage Loan, (b) the
full insurable value of the Mortgaged Property, or (c) the maximum amount of
insurance available under the Flood Disaster Protection Act of 1973, each as
amended. Purchaser shall also maintain on property acquired upon foreclosure, or
by deed in lieu of foreclosure, of any Mortgage Loan, fire and hazard insurance
with extended coverage in an amount which is at least equal to the maximum
insurable
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value of the improvements which are a part of such property, liability insurance
and, to the extent required and available under the Flood Disaster Protection
Act of 1973, each as amended, flood insurance in an amount required above. Any
amounts collected by Purchaser under any such policies (other than amounts to be
deposited in the Escrow Account and applied to the restoration or repair of the
Mortgaged Property or property acquired in liquidation of the Mortgage Loan, or
to be released to the Mortgagor in accordance with Customary Servicing
Procedures) shall be deposited in the Custodial Account, subject to withdrawal
pursuant to this Exhibit. It is understood and agreed that no earthquake or
other additional insurance need be required by Purchaser of any Mortgagor or
maintained on property acquired in respect of a Mortgage Loan, other than
pursuant to such applicable laws and regulations as shall at any time be in
force and as shall require such additional insurance. All policies required
hereunder shall be endorsed with standard mortgagee clauses with loss payable to
Purchaser and its successors and/or assigns, and shall provide for at least
thirty (30) days prior written notice of any cancellation, reduction in amount
or material change in coverage to Purchaser. Purchaser shall not interfere with
the Mortgagor's freedom of choice in selecting either his insurance carrier or
agent.
(K) FIDELITY BOND; ERRORS AND OMISSIONS INSURANCE.
Purchaser shall maintain, at its own expense, a blanket fidelity bond and
an errors and omissions insurance policy, with broad coverage on all officers,
employees or other persons acting in any capacity requiring such persons to
handle funds, money, documents or papers relating to the Mortgage Loans
("Purchaser Employees"). Any such fidelity bond and errors and omissions
insurance shall protect and insure Purchaser against losses, including forgery,
theft, embezzlement, fraud, errors and omissions, failure to maintain any
insurance policies required pursuant to this Exhibit, and negligent acts of such
Purchaser Employees. Such fidelity bond shall also protect and insure Purchaser
against losses in connection with the release or satisfaction of a Mortgage Loan
without having obtained payment in full of the indebtedness secured thereby. No
provision of this Exhibit requiring such fidelity bond and errors and omissions
insurance shall diminish or relieve Purchaser 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 Xxxxxx Mae in the Xxxxxx Xxx Servicing Guide or by Xxxxxxx Mac in the Xxxxxxx
Mac Seller's and Servicers' Guide or in an amount permitted to Purchaser by
express waiver of Xxxxxx Mae or Xxxxxxx Mac. Upon request Purchaser shall
deliver to Seller a certified true copy of the fidelity bond and insurance
policy and a statement from the surety and the insurer that such fidelity bond
or insurance policy shall in no event be terminated or materially modified
without thirty days' prior written notice to Seller.
(L) 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 Seller, or in the event Seller 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
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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 Purchaser, at expense of Seller, from an attorney
duly licensed to practice law in the state where the REO Property is located.
The person or persons holding such title other than Purchaser shall acknowledge
in writing that such title is being held as nominee for Seller.
Purchaser shall manage, conserve, protect and operate each REO Property
for Seller solely for the purpose of its prompt disposition and sale. Purchaser
shall either itself or through an agent selected by Purchaser, manage, conserve,
protect and operate the REO Property in the same manner that it manages,
conserves, protects and operates other foreclosed property for its own account,
and in the same manner that similar property in the same locality as the REO
Property is managed. Purchaser shall attempt to sell the same (and may
temporarily rent the same) on such terms and conditions as Purchaser deems to be
in the best interest of Seller.
With respect to all REO Property, Purchaser shall hold all funds collected
and received in connection with the operation of the REO Property separate and
apart from its own funds or general assets and shall establish and maintain with
respect to all REO Property an REO Account or Accounts, in the form of a
non-interest bearing demand account, titled "[Purchaser] in trust for
Seller-Adjustable Rate Mortgage Loans" unless an Opinion of Counsel is obtained
by Purchaser to the effect that the classification as a grantor trust for
federal income tax purposes of the arrangement under which the Mortgage Loans
and the REO Property are held will not be adversely affected by holding such
funds in another manner.
Purchaser shall cause to be deposited on a daily basis in the REO Account
all revenues received with respect to the conservation and disposition of the
related REO Property and shall withdraw therefrom funds necessary for the proper
operation, management and maintenance of the REO Property, including the cost of
maintaining any hazard insurance and the fees of any managing agent acting on
behalf of Purchaser. Purchaser shall make distributions as required on each
Remittance Date to Purchaser of the net cash flow from the REO Property (which
shall equal the revenues from such REO Property net of the expenses described
above and of any reserves reasonably required from time to time to be maintained
to satisfy anticipated liabilities for such expenses).
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, Purchaser 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. Purchaser shall cause each REO
Property to be inspected promptly upon the acquisition of title and at least
monthly thereafter. Purchaser 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 Purchaser to Seller upon request. Purchaser
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 two (2) years after title
has been taken to such REO Property, unless the Purchase determines, and gives
appropriate notice to the Seller,
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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 Purchaser shall report monthly to the Seller as to the
progress being made in selling such REO Property and (ii) if, with the written
consent of the Seller, a purchase money mortgage is taken in connection with
such sale, such purchase money mortgage shall name the Purchaser as mortgagee,
and a separate servicing agreement between the Seller and the Purchaser shall be
entered into with respect to such purchase money mortgage. Notwithstanding the
foregoing, if a REMIC election is made with respect to the arrangement under
which the Mortgage Loans and the REO Property are held, such REO Property shall
be disposed of within three years or such other period as may be permitted under
Section 860G(a)(8) of the Code.
The disposition of REO Property shall be carried out by Purchaser and
shall be made at such price, and upon such terms and conditions, as Purchaser
deems to be in the best interests of Seller. Upon the request of Seller, and at
Seller's expense, Purchaser shall cause an appraisal of the REO Property to be
performed for Seller. The proceeds of sale of the REO Property shall be promptly
deposited in the REO Account and, as soon as practical thereafter, the expenses
of such sale shall be paid, Purchaser shall reimburse itself for any and all
related unreimbursed Servicing Advances, unpaid Servicing Fees, any and all
unreimbursed advances made and any appraisal performed and the net cash proceeds
of such sale remaining in the REO Account shall be distributed to Purchaser.
Upon request, with respect to any REO Property, Purchaser shall furnish to
Seller a statement covering Purchaser's efforts in connection with the sale of
that REO Property and any rental of the REO Property incidental to the sale
thereof for the previous month (together with an operating statement). That
statement shall be accompanied by such other information as Seller shall
reasonably request.
In addition, upon the foreclosure sale of any Mortgaged Property or the
acquisition thereof pursuant to a deed in lieu of foreclosure, the Purchaser
shall submit to the Seller a liquidation report with respect to such Mortgaged
Property.
(M) DISTRIBUTIONS.
On each Remittance Date, Purchaser shall remit by wire transfer of
immediately available funds to the account designated in writing by Seller of
record on the preceding Record Date (a) all amounts deposited in the Custodial
Account as of the close of business on the preceding Determination Date (net of
all amounts withdrawable therefrom pursuant to Exhibit), plus (b) all amounts,
if any, which Purchaser is obligated to distribute pursuant to this Exhibit,
minus (c) any amounts attributable to Monthly Payments collected but due on a
Due Date or Dates subsequent to the related Due Period, minus (d) any amounts
attributable to principal prepayments received after the last day of the
calendar month preceding the month of the Remittance Date, which amounts shall
be remitted on the following Remittance Date, together with any additional
interest required to be deposited in the Custodial Account in connection with
such principal prepayments in accordance with this Exhibit, minus (e) any
amounts attributable to reimbursement for unreimbursed Servicing Advances,
advance of Purchaser funds, and unpaid Servicing Fees pursuant to this Exhibit,
and minus (f) any amounts attributable to reimbursement
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for subsequent trailing bills related to a previously disposed of REO Property
in which distribution of net cash proceeds has occurred pursuant to this
Exhibit.
With respect to any remittance received by Purchaser after the Business
Day on which such payment was due, Purchaser shall pay to Seller interest on any
such late payment at a rate equal to the overnight federal funds effective rate,
but in no event greater than the maximum amount permitted by applicable law.
Such interest shall be paid by Purchaser to Seller on the date such late payment
is made and shall cover the period commencing with the Business Day on which
such payment was due and ending with the Business Day on which such payment is
made, both inclusive. The payment by Purchaser of any such interest shall not be
deemed an extension of time for payment or a waiver of any Event of Default by
Seller.
To the extent that the amount of a remittance or distribution to Seller
made hereunder is greater than the amount thereof properly to be remitted
pursuant to the terms of this Exhibit, Purchaser will give prompt written notice
thereof to Seller after Purchaser's discovery thereof, including the amount of
such remittance or distribution that was paid in error. If, by the Remittance
Date immediately following such notice, Seller has not reimbursed the Custodial
Account or Purchaser, as applicable, for the amount of such erroneous remittance
or distribution (without any liability on the part of Seller for interest
thereon), Purchaser shall be entitled to withhold such amount from the
remittance to be made on such Remittance Date.
(N) STATEMENTS TO PURCHASER.
On or before the fifth (5th) Business Day of each month, Purchaser shall
provide Seller an electronically transmitted file containing the data set forth
in Exhibits M-1 and M-2.
Purchaser shall prepare and file any and all tax returns, information
statements or other filings required to be delivered to any governmental taxing
authority or to Seller pursuant to any applicable law with respect to the
Mortgage Loans and the transactions contemplated hereby. In addition, Purchaser
shall provide Seller with such information concerning the Mortgage Loans as is
necessary for Seller to prepare its federal income tax return as Seller may
reasonably request from time to time.
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(O) ADVANCES BY PURCHASER.
On the Business Day immediately preceding each Remittance Date, Purchaser
shall deposit in the Custodial Account an amount equal to all Monthly Payments
(with interest adjusted to the Mortgage Loan Remittance Rate) which were due on
the Mortgage Loans during the applicable Due Period and which were delinquent at
the close of business on the immediately preceding Determination Date. This
deposit may be offset by any funds held for a future distribution not due on the
current Remittance Date; provided, however, the Purchaser shall deposit in the
Custodial Account such funds as described in the preceding clause prior to the
next Remittance Date. Purchaser's obligation to make such advances as to any
Mortgage Loan will continue through the last Monthly Payment due prior to the
payment in full of the Mortgage Loan, or through the last Remittance Date prior
to the Remittance Date for the distribution of all other payments or recoveries
(including proceeds under any title, hazard or other insurance policy, or
condemnation awards) with respect to the Mortgage Loan, provided, however, that
such obligation shall cease if (a) there has been a final disposition of the
Mortgage Loan or (b) if Purchaser, in its good faith judgment, determines that
such advances would not be recoverable pursuant to this Exhibit. The
determination by Purchaser that an advance, if made, would be nonrecoverable,
shall be evidenced by an officer's certificate of Purchaser, delivered to
Seller, which details the reasons for such determination and contains an
appraisal of the value of the Mortgaged Property.
(P) ASSUMPTION AGREEMENTS.
Purchaser will use its best efforts to enforce any "due-on-sale" provision
contained in any Mortgage or Mortgage Note to the extent permitted by law,
provided that Purchaser shall permit such assumption if so required in
accordance with the terms of the Mortgage or the Mortgage Note. When the
Mortgaged Property has been conveyed by the Mortgagor, Purchaser will, to the
extent it has knowledge of such conveyance, exercise its rights to accelerate
the maturity of such Mortgage Loan under the "due-on-sale" clause applicable
thereto, provided, however, Purchaser will not exercise such rights if
prohibited by law from doing so or if the exercise of such rights would impair
or threaten to impair any recovery under the related private mortgage guaranty
policy, if any. If Purchaser reasonably believes it is unable under applicable
law to enforce such "due-on-sale" clause, Purchaser may enter into an assumption
and modification agreement with the person to whom such property has been
conveyed, pursuant to which such person becomes liable under the Mortgage Note
and, to the extent permitted by applicable law, the Mortgagor remains liable
thereon. In connection with any such assumption, the outstanding principal
amount, the Monthly Payment and the Mortgage Interest Rate of the related
Mortgage Note shall not be changed, and the term of the Mortgage Loan will not
be increased or decreased. If an assumption is allowed pursuant to this Exhibit,
Purchaser with the prior consent of the private mortgage guaranty insurer, if
any, is authorized to enter into a substitution of liability agreement with
seller of the Mortgaged Property pursuant to which the original Mortgagor is
released from liability and purchaser of the Mortgaged Property is substituted
as Mortgagor and becomes liable under the Mortgage Note. The Purchaser shall
notify the Seller that any such substitution of liability or assumption
agreement has been completed by forwarding to the Seller the original of any
such substitution of liability or assumption agreement, which document shall be
added to the
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related Mortgage File and shall, for all purposes, be considered a part of such
Mortgage File to the same extent as all other documents and instruments
constituting a part thereof. Any fee collected by Purchaser for entering into
any such assumption agreement will be retained by Purchaser as additional
servicing compensation.
(Q) SATISFACTION OF MORTGAGES AND RELEASE OF MORTGAGE FILES.
Upon the payment in full of any Mortgage Loan, or the receipt by Purchaser
of a notification that payment in full will be escrowed in a manner customary
for such purposes, Purchaser will obtain the portion of the Mortgage file that
is in the possession of the Seller or Seller's custodian, prepare and process
any required satisfaction or release of the Mortgage and notify Purchaser as
provided in this Exhibit. Seller shall indemnify Purchaser for any out-of-pocket
expenses that the Purchaser may sustain from Seller's custodian's failure to
deliver such Mortgage file in a timely manner.
In the event Purchaser grants a satisfaction or release of a Mortgage
without having obtained payment in full of the indebtedness secured by the
Mortgage or should Purchaser otherwise prejudice any right Seller may have under
the mortgage instruments, Purchaser, upon written demand of Seller, shall remit
to Seller the stated principal balance of the related Mortgage Loan by deposit
thereof in the Custodial Account. Purchaser shall maintain the Fidelity Bond and
errors and omissions insurance as provided for in this Exhibit insuring 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 of the Mortgage
Loan, including for this purpose collection under any Primary Insurance Policy,
the Seller shall, upon request of the Purchaser and delivery to the Seller of a
servicing receipt signed by a Servicing Officer, release the requested portion
of the Mortgage File held by the Seller or its designee to the Purchaser. Such
servicing receipt shall obligate the Purchaser to return the related Mortgage
documents to the Seller or its designee when the need therefor by the Purchaser
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 Purchaser has delivered to the Seller 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 Seller to
the Purchaser.
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(R) SERVICING COMPENSATION.
As compensation for its services hereunder, Purchaser shall be entitled to
retain from interest payments on the Mortgage Loans the Servicing Fee.
Additional servicing compensation such as assumption fees, fax fees, late
payment charges or similar fees shall be retained by Purchaser to the extent not
required to be deposited in the Custodial Account. Purchaser 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.
(S) ANNUAL STATEMENT AS TO COMPLIANCE.
Purchaser will deliver to Seller, on or before March 15 of each year
beginning March 2007, an officers' certificate stating that (a) a review of the
activities of Purchaser during the preceding calendar year and its performance
under this Agreement has been made under such officer's supervision, and (b) to
the best of such officer's knowledge, based on such review, Purchaser has
fulfilled all its obligations under this Agreement throughout such year, or, if
there has been a default in the fulfillment of any such obligation, specifying
each such default known to such officer and the nature and status thereof and
the action being taken by Purchaser to cure such default.
(T) ANNUAL INDEPENDENT PUBLIC ACCOUNTANTS' SERVICING REPORT.
On or before March 15 of each year beginning March 2007, Purchaser at its
expense shall cause a firm of independent public accountants which is a member
of the American Institute of Certified Public Accountants to furnish a statement
to Seller to the effect that such firm has examined certain documents and
records, relating to the servicing of mortgage loans during the immediately
preceding fiscal year of Purchaser and that such firm is of the opinion that, on
the basis of such examination conducted substantially in compliance with the
Single Audit Program for Mortgage Bankers, nothing has come to their attention
which would indicate that such servicing has not been conducted in compliance
therewith, except for (a) such exceptions as such firm shall believe to be
immaterial and (b) such other exceptions as shall be set forth in such
statement.
(U) SELLER'S RIGHT TO EXAMINE PURCHASER RECORDS.
Seller shall have the right, at all reasonable times upon reasonable
notice and as often as reasonably required, to examine and audit any and all of
the books, records or other information of Purchaser whether held by Purchaser
or by another on behalf of Purchaser, which are relevant to the performance or
observance by Seller of the terms, covenants or conditions of this Agreement.
(V) PURCHASER SHALL PROVIDE ACCESS/INFORMATION AS REASONABLY REQUIRED.
Purchaser shall provide to Seller access to any documentation regarding
the Mortgage Loans which may be required by applicable regulations (the
"Regulations"). Such access shall
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be afforded without charge, but only upon reasonable request, during normal
business hours and at the offices of Purchaser.
In addition, Purchaser shall furnish upon request by Seller, during the
term of this Agreement, such periodic, special or other reports or information,
whether or not provided for herein, as shall be necessary, reasonable and
appropriate with respect to the purposes of this Agreement and the Regulations.
All such reports or information shall be provided by and in accordance with all
reasonable instructions and directions Purchaser may require. Purchaser agrees
to execute and deliver all such instruments and take all such action as Seller,
from time to time, may reasonably request in order to effectuate the purposes
and to carry out the terms of this Agreement.
(W) EVENTS OF DEFAULT.
In case one or more of the following Events of Default by Purchaser shall
occur and be continuing, that is to say:
(a) any failure by Purchaser to remit to Seller any payment required to
be made under the terms of this Exhibit which continues unremedied
for a period of one (1) Business Day after the date upon which
written notice of such failure, requiring the same to be remedied,
shall have been given by Seller to Purchaser; or
(b) failure by Purchaser to duly observe or perform, in any material
respect, any other covenants, obligations or agreements of Purchaser
as set forth in 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 by Seller to Purchaser; or
(c) a decree or order of a court or agency or supervisory authority
having jurisdiction for the appointment of a conservator or receiver
or liquidator in any insolvency, bankruptcy, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for
the winding-up or liquidation of its affairs, shall have been
entered against Purchaser and such decree or order shall have
remained in force, undischarged or unstayed for a period of sixty
(60) days; or
(d) Purchaser shall consent to the appointment of a conservator or
receiver or liquidator in any insolvency, bankruptcy, readjustment
of debt, marshalling of assets and liabilities or similar
proceedings of or relating to Purchaser or relating to all or
substantially all of Purchaser's property; or
(e) Purchaser shall admit in writing its inability to pay its debts as
they become due, file a petition to take advantage of any applicable
insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its
obligations; or
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(f) Purchaser attempts, without consent of Seller, to sell or otherwise
dispose of all or substantially all of its property or assets other
than in the ordinary course of business or as otherwise permitted
under Section 13.16 hereof, or to assign this Agreement or the
servicing responsibilities hereunder or to delegate its duties
hereunder or any portion thereof in a manner not permitted under
this Agreement; or
(g) failure by Purchaser to be in compliance with the "doing business"
or licensing laws of any jurisdiction where a Mortgaged Property is
located which materially and adversely affects the servicing of the
Mortgage Loans or the enforceability or lien priority of the related
Mortgage Loan; or
(h) after a Reconstitution in a Pass-Through Transfer, any of the Rating
Agencies reduces or withdraws the rating of any of the certificates
issued by a securitization trust that owns the Mortgage Loans due to
a reason attributable solely to Purchaser; or
(i) failure by the Purchaser to duly perform, within the required time
period, its obligations under sections (S) and (T) of this Exhibit
or Sections 13.04 or 13.05 of the Agreement, which failure continues
unremedied for a period of ten (10) days after the date on which
written notice of such failure, requiring the same to be remedied,
shall have been given to the Purchaser by any party to this
Agreement or by any master servicer responsible for master servicing
the Mortgage Loans pursuant to a securitization of such Mortgage
Loans;
then, and in each and every such case, so long as an Event of Default shall not
have been remedied, Seller, by notice in writing to Purchaser, may, in addition
to whatever rights Seller may have at law or equity to damages, including
injunctive relief and specific performance, terminate all the rights and
obligations of Purchaser under this Agreement and in and to the Mortgage Loans
and the proceeds thereof. On and after the receipt by Purchaser of such written
notice all authority and power of Purchaser 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 11.17.
All costs in connection with the transfer of servicing shall be paid by
Purchaser upon presentation of reasonable documentation of such costs.
If any of the Mortgage Loans are registered on MERS, in connection with
the termination or resignation (as described in Section 11.15) of Purchaser
hereunder, either (i) the successor Purchaser shall represent and warrant that
it is a member of MERS in good standing and shall agree to comply in all
material respects with the rules and procedures of MERS in connection with the
servicing of the Mortgage Loans that are registered with MERS, or (ii) Purchaser
shall cooperate with the successor company either (x) in causing MERS to execute
and deliver an assignment of Mortgage in recordable form to transfer the
Mortgage from MERS to Seller and to execute and deliver such other notices,
documents and other instruments as may be necessary or desirable to effect a
transfer of such Mortgage Loan or servicing of such Mortgage Loan on the
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MERS system to the successor company or (y) in causing MERS to designate on the
MERS system the successor company as the servicer of such Mortgage Loan.
(X) WAIVER OF DEFAULTS.
Seller may waive only by written notice any default by Purchaser in the
performance of its obligations hereunder and its consequences. Upon any such
waiver of a past default, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any subsequent or
other default or impair any right consequent thereto except to the extent
expressly so waived in writing.
(Y) TERMINATION.
(a) This Agreement shall terminate upon either: (a) the later of the
distribution to Seller of final payment or liquidation with respect to the
last Mortgage Loan (or advances of same by Purchaser), or the disposition
of all property acquired upon foreclosure or deed in lieu of foreclosure
with respect to the last Mortgage Loan and the remittance of all funds due
hereunder; or (b) mutual consent of Seller and Purchaser in writing.
(b) Purchaser may terminate, at its sole option, any rights Seller may
have hereunder to service Mortgage Loans, without cause, including without
limitation upon exercise of any clean up call with respect to a
Reconstitution, provided that Seller pay to Purchaser a termination fee in
an amount equal to six (6) times the annual net servicing fee then in
effect with respect to the Servicing so terminated multiplied by the then
outstanding principal balance of the Mortgage Loans related to the
Servicing so terminated. Any such notice of termination shall be in
writing and delivered to Seller by registered mail as provided in Section
13.05.
(Z) NOTIFICATION OF ADJUSTMENTS.
On each Adjustment Date, Purchaser shall make interest rate adjustments
for each Adjustable Rate Mortgage Loan in compliance with the requirements of
the related Mortgage and Mortgage Note. Purchaser shall execute and deliver the
notices required by each Mortgage and Mortgage Note regarding interest rate
adjustments. Upon the discovery by Seller or Purchaser that Purchaser has failed
to adjust a Mortgage Interest Rate or a Monthly Payment pursuant to the terms of
the related Mortgage Note and Mortgage, Purchaser shall immediately deposit in
the Custodial Account from its own funds the amount of any interest loss caused
thereby without reimbursement therefor.
(AA) 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, Purchaser 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
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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 Purchaser 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.
(BB) SUB-SERVICING AGREEMENTS BETWEEN PURCHASER AND SUBSERVICERS.
Purchaser, as servicer, may arrange for the subservicing of any Mortgage
Loan by a Subservicer pursuant to a Sub-Servicing Agreement; provided that such
sub-servicing arrangement and the terms of the related Sub-Servicing Agreement
must provide for the servicing of such Mortgage Loans in a manner consistent
with Section 12.06 of the Agreement and the servicing arrangements contemplated
hereunder. Each Subservicer shall be (i) authorized to transact business 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 Sub-Servicing
Agreement and (ii) a Xxxxxxx Mac or Xxxxxx Mae approved mortgage servicer.
Notwithstanding the provisions of any Sub-Servicing Agreement, any of the
provisions of this Agreement relating to agreements or arrangements between
Purchaser or a Subservicer or reference to actions taken through Purchaser or
otherwise, Purchaser shall remain obligated and liable to Seller and its
successors and assigns for the servicing and administration of the Mortgage
Loans in accordance with the provisions of this Agreement without diminution of
such obligation or liability by virtue of such Sub-Servicing Agreements or
arrangements or by virtue of indemnification from the Subservicer and to the
same extent and under the same terms and conditions as if Purchaser alone were
servicing and administering the Mortgage Loans. Every Sub-Servicing Agreement
entered into by Purchaser shall contain a provision giving the successor
servicer the option to terminate such agreement in the event a successor
servicer is appointed. All actions of each Subservicer performed pursuant to the
related Sub-Servicing Agreement shall be performed as an agent of Purchaser with
the same force and effect as if performed directly by Purchaser.
For purposes of this Agreement, Purchaser shall be deemed to have received
any collections, recoveries or payments with respect to the Mortgage Loans that
are received by a Subservicer regardless of whether such payments are remitted
by the Subservicer to Purchaser.
(CC) SUCCESSOR SUBSERVICERS.
Any Sub-Servicing Agreement shall provide that Purchaser shall be entitled
to terminate any Sub-Servicing Agreement and to either itself directly service
the related Mortgage Loans or enter into a Sub-Servicing Agreement with a
successor Subservicer which qualifies under Section (BB) of this Exhibit. Any
Sub-Servicing Agreement shall include the provision that such agreement may be
immediately terminated by any successor to Purchaser without fee, in accordance
with the terms of this Agreement, in the event that Purchaser (or any successor
to Purchaser) shall, for any reason, no longer be the servicer of the related
Mortgage Loans (including termination due to an Event of Default).
M-17
(DD) NO CONTRACTUAL RELATIONSHIP BETWEEN SUBSERVICER AND SELLER.
Any Sub-Servicing Agreement and any other transactions or services
relating to the Mortgage Loans involving a Subservicer shall be deemed to be
between the Subservicer and Purchaser alone and Seller shall not be deemed a
party thereto and shall have no claims, rights, obligations, duties or
liabilities with respect to any Subservicer except as set forth in Section (EE)
of this Exhibit.
(EE) ASSUMPTION OR TERMINATION OF SUB-SERVICING AGREEMENT BY SUCCESSOR
SERVICER.
In connection with the assumption of the responsibilities, duties and
liabilities and of the authority, power and rights of Purchaser hereunder by a
successor servicer pursuant to Section 11.17 of this Agreement, it is understood
and agreed that Purchaser's rights and obligations under any Sub-Servicing
Agreement then in force between Purchaser and a Subservicer shall be assumed
simultaneously by such successor servicer without act or deed on the part of
such successor servicer; provided, however, that any successor servicer may
terminate the Subservicer.
Purchaser shall, upon the reasonable request of Seller, but at its own
expense, deliver to the assuming party documents and records relating to each
Sub-Servicing Agreement and an accounting of amounts collected and held by it
and otherwise use its best efforts to effect the orderly and efficient transfer
of the Sub-Servicing Agreements to the assuming party.
The Servicing Fee payable to any such successor servicer shall be payable
from payments received on the Mortgage Loans in the amount and in the manner set
forth in this Agreement.
X-00
XXXXXXX X-0
MONTHLY REPORT
Investor Code
CMI Loan Number
Investor Loan Number
Last Paid Installment
Scheduled Payment
Scheduled Interest Rate
Servicing Fee
Beginning Scheduled Balance
Unpaid Principal Balance
Ending Scheduled Balance
Scheduled Principal
Unscheduled Principal
Interest on Curtailment
Total Principal
Scheduled Interest
Total Remittance
Payoff Date
Payoff Amount
Soldiers and Sailors (S&S) Flag
S&S Subsidy Amount
S&S Order End Date
Prepayment Penalty Amount
Prepayment Amount Waived
Action Code
M-19
EXHIBIT M-2
MONTHLY DELIQUENCY REPORT
Purchaser shall provide the following information to Purchaser as required by
the Agreement.
Table Investor Name -- Investor Name
Servicer Loan Number
Investor Loan Number
Servicer's Investor Number
Borrower Last Name
Mortgagor -- First and Last Name
Xxxxxxx Xxxx 0
Xxxxxxx Xxxx 0
Xxxx
Xxxxx
Zip Code
Table -- Generic Active Loan Type Code -- ex: conventional, fha, etc.
Loan Type Description
Reason Code -- reason for default
Reason for Default Description
Delinquency Status Code
Delinquency Status Description
Property Inspection Date
Property Condition Code
Property Condition Description
Occupancy Code
Occupancy Description
Note Rate
Principal Balance
Principal and Interest Payment
Total Due Amount
Table Max Plus Loan Type Code-- ex: conventional, fha
Loss Mitigation Received Date
Loss Mitigation Approved
Loss Mitigation Plan
Loss Mitigation Estimated Close Date -- estimated ending date of Loss Mitigation
plan
Loss Mitigation Actual Close Date -- actual ending date of Loss Mitigation plan
Bankruptcy Filed Date
Bankruptcy Chapter
Bankruptcy Case Number
POC Filed Date -- Bankruptcy Proof of Claim
MFR Filed Date -- Bankruptcy Motion for Release
Post-Petition Due Date
Discharge / Dismissal Date -- Bankruptcy
Foreclosure Referral Date
M-20
First Legal Date -- first date of legal action - Foreclosure
Foreclosure Sale Estimated Date
Foreclosure Sale Action
Foreclosure Bid
Eviction Start Date
Eviction Complete Date
List Price
List Date
Contract Price
Contract Date
Appraisal Date
Appraisal Value
MI Claim Filed Date
MI Filed Amount
MI Claim Received Date
MI Received Amount
Actual Closing Date
Estimated Closing Date
Claim Type
Active Investor 1 Name Code -- Investor Code
Investor 1 ID -- Investor Code
Close Code -- code indicating if loan is still active in delinquency system
Months Delinquent
Interest Paid to Date
M-21
EXHIBIT N
FORM OF ANNUAL CERTIFICATION
Re: The [ ] agreement dated as of [ ], 200[ ] (the "Agreement"),
among [IDENTIFY PARTIES]
I am, ______________________, the _______________________ of [NAME OF SERVICER]
and, in such capacity, the officer in charge of the Servicer's responsibility on
Exhibit [ ] to the Agreement. I hereby certify to [the Owner], [the Depositor],
and the [Master Servicer] [Securities Administrator] [Trustee], and their
officers, with the knowledge and intent that they will rely upon this
certification, that:
(1) I have reviewed the servicer compliance statement of the Servicer provided
in accordance with Item 1123 of Regulation AB (the "Compliance Statement"), the
report on assessment of the Servicer's compliance with the servicing criteria
set forth in Item 1122(d) of Regulation AB (the "Servicing Criteria"), provided
in accordance with Rules 13a-18 and 15d-18 under Securities Exchange Act of
1934, as amended (the "Exchange Act") and Item 1122 of Regulation AB (the
"Servicing Assessment"), the registered public accounting firm's attestation
report provided in accordance with Rules 13a-18 and 15d-18 under the Exchange
Act and Section 1122(b) of Regulation AB (the "Attestation Report"), and all
other data, servicing reports, officer's certificates and information relating
to the performance of the Servicer under the terms of the Agreement during 200[
] that were delivered to the [Depositor] [Master Servicer] [Securities
Administrator] [Trustee] pursuant to the Agreement (collectively, the "Servicer
Servicing Information");
(2) Based on my knowledge, the reports and information comprising the Servicer
Servicing Information, taken as a whole, does not contain any untrue statement
of a material fact or omit to state a material fact necessary to make the
statements made, in the light of the circumstances under which such statements
were made, not misleading as of the period covered by or the date of such
reports or information or the date of this certification;
(3) Based on my knowledge, all of the Servicer Servicing Information required to
be provided by the Servicer under the Agreement has been provided to the
[Depositor] [Master Servicer] [Securities Administrator] [Trustee];
(4) I am responsible for reviewing the activities performed by the Servicer
under the Agreement, and based on my knowledge and the compliance review
conducted in preparing the Compliance Statement and except as disclosed in the
Compliance Statement, the Servicing Assessment or the Attestation Report, the
Servicer has fulfilled its obligations under the Agreement in all material
respects; and
(5) The Compliance Statement required to be delivered by the Servicer pursuant
to the Agreement, and the Servicing Assessment and Attestation Report required
to be provided by the Servicer and by any Subservicer or Subcontractor pursuant
to the Agreement, have been provided to the [Depositor] [Master Servicer]. The
Servicing
N-1
Assessment and the Attestation Report cover all items of the servicing criteria
identified on Exhibit 21 to the Agreement as applicable to the 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.
The following material instances of noncompliance identified in the Servicing
Assessment and the Attestation Report relate to the performance or obligations
of the Servicer under the Agreement: ____________ (if none, state "None.").
CITIMORTGAGE, INC.
(Servicer)
By:
Name:
Title:
Date:
N-2
EXHIBIT O
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by [the Servicer] [Name of
Subservicer] shall address, at a minimum, the criteria identified as below as
"Applicable Servicing Criteria":
Servicing Criteria Applicable
------------------------------------------------------------------------------------------------------------ Servicing
Reference Criteria Criteria
---------------- -------------------------------------------------------------------------------- ----------
General Servicing Considerations
1122(d)(1)(i) Policies and procedures are instituted to monitor any performance or other X
triggers and events of default in accordance with the transaction agreements.
1122(d)(1)(ii) If any material servicing activities are outsourced to third parties, policies X
and procedures are instituted to monitor the third party's performance and
compliance with such servicing activities.
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a back-up servicer
for the mortgage loans are maintained.
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect on the party X
participating in the servicing function throughout the reporting period in the
amount of coverage required by and otherwise in accordance with the terms of the
transaction agreements.
Cash Collection and Administration
1122(d)(2)(i) Payments on mortgage loans are deposited into the appropriate custodial bank X
accounts and related bank clearing accounts no more than two business days
following receipt, or such other number of days specified in the transaction
agreements.
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or to an investor X
are made only by authorized personnel.
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash flows or X
distributions, and any interest or other fees charged for such advances, are
made, reviewed and approved as specified in the transaction agreements.
1122(d)(2)(iv) The related accounts for the transaction, such as cash reserve accounts or X
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth in the
transaction agreements.
O-1
Servicing Criteria Applicable
------------------------------------------------------------------------------------------------------------ Servicing
Reference Criteria Criteria
---------------- -------------------------------------------------------------------------------- ----------
1122(d)(2)(v) Each custodial account is maintained at a federally insured depository X
institution as set forth in the transaction agreements. For purposes of this
criterion, "federally insured depository institution" with respect to a foreign
financial institution means a foreign financial institution that meets the
requirements of Rule 13k-1(b)(1) of the Securities Exchange Act.
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized access. X
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all asset-backed securities X
related bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate; (B) prepared
within 30 calendar days after the bank statement cutoff date, or such other
number of days specified in the transaction agreements; (C) reviewed and
approved by someone other than the person who prepared the reconciliation; and
(D) contain explanations for reconciling items. These reconciling items are
resolved within 90 calendar days of their original identification, or such other
number of days specified in the transaction agreements.
Investor Remittances and Reporting
1122(d)(3)(i) Reports to investors, including those to be filed with the Commission, are X
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with the terms
specified in the transaction agreements; (C) are filed with the Commission as
required by its rules and regulations; and (D) agree with investors' or the
trustee's records as to the total unpaid principal balance and number of
mortgage loans serviced by the Servicer.
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in accordance with X
timeframes, distribution priority and other terms set forth in the transaction
agreements.
1122(d)(3)(iii) Disbursements made to an investor are posted within two business days to the X
Servicer's investor records, or such other number of days specified in the
transaction agreements.
1122(d)(3)(iv) Amounts remitted to investors per the investor reports agree with cancelled X
checks, or other form of payment, or custodial bank statements.
O-2
Servicing Criteria Applicable
------------------------------------------------------------------------------------------------------------ Servicing
Reference Criteria Criteria
---------------- -------------------------------------------------------------------------------- ----------
Pool Asset Administration
1122(d)(4)(i) Collateral or security on mortgage loans is maintained as required by the
transaction agreements or related mortgage loan documents. X
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as required by the
transaction agreements. X
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are made, reviewed
and approved in accordance with any conditions or requirements in the X
transaction agreements.
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in accordance with the X
related mortgage loan documents are posted to the Servicer's obligor records
maintained no more than two business days after receipt, or such other number of
days specified in the transaction agreements, and allocated to principal,
interest or other items (e.g., escrow) in accordance with the related mortgage
loan documents.
1122(d)(4)(v) The Servicer's records regarding the mortgage loans agree with the Servicer's X
records with respect to an obligor's unpaid principal balance.
1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's mortgage loans X
(e.g., loan modifications or re-agings) are made, reviewed and approved by
authorized personnel in accordance with the transaction agreements and related
pool asset documents.
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance plans, modifications and X
deeds in lieu of foreclosure, foreclosures and repossessions, as applicable) are
initiated, conducted and concluded in accordance with the timeframes or other
requirements established by the transaction agreements.
1122(d)(4)(viii) Records documenting collection efforts are maintained during the period a X
mortgage loan is delinquent in accordance with the transaction agreements. Such
records are maintained on at least a monthly basis, or such other period
specified in the transaction agreements, and describe the entity's activities in
monitoring delinquent mortgage loans including, for example, phone calls,
letters and payment rescheduling plans in cases where delinquency is deemed
temporary (e.g., illness or unemployment).
1122(d)(4)(ix) Adjustments to interest rates or rates of return for mortgage loans with X
variable rates are computed based on the related mortgage loan documents.
O-3
Servicing Criteria Applicable
------------------------------------------------------------------------------------------------------------ Servicing
Reference Criteria Criteria
---------------- -------------------------------------------------------------------------------- -----------
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as escrow accounts): (A) X
such funds are analyzed, in accordance with the obligor's mortgage loan
documents, on at least an annual basis, or such other period specified in the
transaction agreements; (B) interest on such funds is paid, or credited, to
obligors in accordance with applicable mortgage loan documents and state laws;
and (C) such funds are returned to the obligor within 30 calendar days of full
repayment of the related mortgage loans, or such other number of days specified
in the transaction agreements.
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or insurance payments) are X
made on or before the related penalty or expiration dates, as indicated on the
appropriate bills or notices for such payments, provided that such support has
been received by the servicer at least 30 calendar days prior to these dates, or
such other number of days specified in the transaction agreements.
1122(d)(4)(xii) Any late payment penalties in connection with any payment to be made on behalf X
of an obligor are paid from the servicer's funds and not charged to the obligor,
unless the late payment was due to the obligor's error or omission.
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted within two business days X
to the obligor's records maintained by the servicer, or such other number of
days specified in the transaction agreements.
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are recognized and X
recorded in accordance with the transaction agreements.
1122(d)(4)(xv) Any external enhancement or other support, identified in Item 1114(a)(1) through [X]
(3) or Item 1115 of Regulation AB, is maintained as set forth in the transaction [if obligated
agreements. under the
transaction
documents]
O-4
EXHIBIT P
WHOLE LOAN/PASS-THROUGH TRANSFER INFORMATION
Seller shall provide to Purchaser the following information with respect to each
Mortgage Loan that is to be included in a Whole Loan or Pass-Through Transfer:
Investor Code
CMI Loan Number
Investor Loan Number
Last paid installment
Scheduled Payment
Scheduled Interest Rate
Servicing Fee
Beginning Scheduled Balance
Unpaid Principal Balance
Ending Scheduled Balance
Scheduled Principal
P-1
