Exhibit 99.9
EXECUTION COPY
================================================================================
MASTER PURCHASE AND SERVICING AGREEMENT
By and Between
NATIONAL CITY MORTGAGE CO.
(Seller and Servicer)
and
WACHOVIA BANK, NATIONAL ASSOCIATION
(Purchaser)
Dated as of May 1, 2006
Conventional Residential First Mortgage Loans
Wachovia Bank, National Association
and Successor Purchasers
================================================================================
MASTER PURCHASE AND SERVICING AGREEMENT
This MASTER PURCHASE AND SERVICING AGREEMENT dated as of May 1, 2006, is
between WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association, as
purchaser and master servicer (the "Purchaser"), and NATIONAL CITY MORTGAGE CO.,
an Ohio corporation, as a seller and servicer (the "Seller" or "Servicer").
PRELIMINARY STATEMENT
WHEREAS, the Seller is engaged in the business, inter alia, of making loans
to individuals, the repayment of which is secured by a first lien mortgage on
such individuals' residences (each, a "Mortgage Loan"), and the Purchaser is
engaged in the business, inter alia, of purchasing Mortgage Loans; and
WHEREAS, the Purchaser and the Seller desire to prescribe the manner of
purchase by the Purchaser of such Mortgage Loans and the management, servicing
and control of such Mortgage Loans;
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Purchaser and the Seller agree as follows:
[THE REMAINDER OF THIS PAGE WAS LEFT BLANK INTENTIONALLY.]
1
ARTICLE I
DEFINITIONS
Whenever used herein, the following words and phrases, unless the context
otherwise requires, shall have the following meanings:
Advance Monthly Payment: Any payment or other recovery of principal and
interest on a Mortgage Loan that is received in advance of its scheduled Due
Date and which is not a Principal Prepayment.
Affiliate: With respect to any specified Person, any other Person
controlling, controlled by or under common control with such specified Person.
Agency Transfer: The sale or transfer by Purchaser of some or all of the
Mortgage Loans to Xxxxxx Xxx under its Cash Purchase Program or its MBS Swap
Program (Special Servicing Option) or to Xxxxxxx Mac under its Xxxxxxx Xxx Xxxx
Program or Gold PC Program, retaining the Seller as "servicer thereunder".
Agreement: This Master Purchase and Servicing Agreement, including all
exhibits hereto, and all amendments hereof and supplements hereto.
ALTA: The American Land Title Association or any successor.
Ancillary Income: All fees derived from the Mortgage Loans, other than
Servicing Fees and prepayment fees, including but not limited to, late charges,
fees received with respect to checks or bank drafts returned by the related bank
for non-sufficient funds, assumption fees, optional insurance administrative
fees and all other incidental fees and charges.
Appraised Value: With respect to any Mortgage Loan, the value of the
related Mortgaged Property based upon the appraisal made for the originator at
the time of the origination of such Mortgage Loan or the sale price of such
Mortgaged Property if the proceeds of such Mortgage Loan were used to purchase
such Mortgaged Property, whichever is less.
Approved Tax Service Contract Provider: A tax service contract provider
acceptable to Xxxxxx Xxx or Xxxxxxx Mac.
ARM Loan: A Mortgage Loan as to which the related Mortgage Note provides
that the Mortgage Interest Rate may be adjusted periodically.
Assignment and Conveyance: The form attached hereto as Exhibit L and
delivered by Seller as described in Section 2.1 hereof.
2
Assignment of Mortgage: An assignment of a Mortgage, notice of transfer, or
equivalent instrument, in recordable form, sufficient under the laws of the
jurisdiction wherein the related Mortgaged Property is located to reflect of
record the sale of the Mortgage Loan to the assignee named therein, which
assignment, notice of transfer or equivalent instrument may be in blanket form
where and as permitted by law.
Available Distribution Amount: With respect to any Remittance Date, the sum
of (i) the balance on deposit in the Collection Account as of the close of
business on the related Determination Date, minus all portions thereof which
represent either (A) Advance Monthly Payments unless the Seller shall elect to
distribute such Advance Monthly Payments in lieu of making a Monthly Advance
pursuant to Section 5.3, (B) Principal Prepayments, Insurance Proceeds,
Liquidation Proceeds and Condemnation Proceeds (and related interest payments)
received by the Seller after the related Principal Prepayment Period, or (C)
other amounts, not included in (A) or (B) above, which are reimbursable or
payable to the Seller pursuant to Section 4.5, and (ii) Monthly Advances, if
any, made by the Seller pursuant to Section 5.3 for such Remittance Date.
BPO: A broker's price opinion with respect to a Mortgaged Property.
Business Day: Any day other than (i) a Saturday or Sunday or (ii) a day on
which banking or savings and loan institutions in the State of North Carolina
are authorized or obligated by law or executive order to be closed or (iii) a
day on which banking or savings and loan institutions in the State of Ohio are
authorized or obligated by law or executive order to be closed.
Closing Date: The date or dates set forth on the related Commitment Letter
on which the Purchaser from time to time shall purchase and the Seller from time
to time shall sell, the Mortgage Loans listed on the related Mortgage Loan
Schedule.
Code: The Internal Revenue Code of 1986, as amended from time to time, or
any successor statute thereto, and applicable U.S. Department of Treasury
regulations issued pursuant thereto.
Collection Account: The account or accounts created and maintained pursuant
to Section 4.4.
Commitment Letter: With respect to any Mortgage Loan Package purchased and
sold on any Closing Date, the letter agreement entered into between Purchaser
and Seller (including any exhibits schedules and attachments thereto) for the
related Transaction setting forth the terms and conditions of such Transaction
and describing the Mortgage Loans to be purchased by the Purchaser on such
Closing Date. A Commitment Letter may relate to more than one Mortgage Loan
Package to be purchased on one or more Closing Dates hereunder. The terms of
each Commitment Letter are incorporated herein by reference.
3
Condemnation Proceeds: All awards or settlements in respect of a taking of
all or part of a Mortgaged Property by exercise of the power of eminent domain
or condemnation.
Customary Servicing Procedures: As to any Mortgage Loan, the reasonable
mortgage servicing practices of prudent mortgage lending institutions that
service mortgage loans of the same type as the Mortgage Loans in the
jurisdictions where the Mortgaged Properties are located. Compliance with the
requirements of either the Xxxxxx Mae Guides or the Servicer Guide shall be
deemed to compliance with Customary Servicing Procedures.
Custodian: The Custodian (which may be the Purchaser) designated by
Purchaser to hold the Mortgage Files.
Cut-Off Date: The date set forth on the related Commitment Letter.
Default: Any condition or circumstance that is, or with notice or the lapse
of time or both, would become, an Event of Default.
Deleted Mortgage Loan: A Mortgage Loan replaced or to be replaced with a
Qualified Substitute Mortgage Loan.
Determination Date: With respect to any Remittance 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 in which such Remittance Date occurs.
Due Date: With respect to any Mortgage Loan, the day of the month on which
Monthly Payments on such Mortgage Loan are due, exclusive of any days of grace.
.. With respect to the Mortgage Loans for which payment from the Mortgagor is due
on a day other than the first day of the month, such Mortgage Loans will be
treated as if the Monthly Payment is due on the first day of the month of such
Due Date.
Due Period: With respect to any Remittance Date, the period beginning on
the second day of the month immediately preceding the month of such Remittance
Date and ending on the first day of the month of such Remittance Date.
Eligible Account: An account or accounts maintained with a Qualified
Depository.
ERISA: The Employee Retirement Income Security Act of 1974, as amended from
time to time, or any successor statute thereto.
Escrow Account: The separate account or accounts created and maintained
pursuant to Section 4.6.
Escrow Payments: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, mortgage insurance premiums, if any, fire and hazard
4
insurance premiums and any other payments required to be escrowed by the
Mortgagor with the mortgagee pursuant to any Mortgage Loan and this Agreement.
Event of Default: Any one of the conditions or circumstances enumerated in
Section 8.1.
Xxxxxx Xxx: Formerly known as The Federal National Mortgage Association or
any successor thereto..
Xxxxxx Mae Guides: The Xxxxxx Xxx Selling Guide and the Xxxxxx Mae
Servicing Guide and all amendments or additions thereto.
FDIC: The Federal Deposit Insurance Corporation or any successor.
FICO Score: A statistical credit score obtained by mortgage lenders in
connection with the loan application to help assess a borrower's credit
worthiness.
Fidelity Bond: A fidelity bond to be obtained by the Seller pursuant to
Section 4.13.
First Remittance Date: For any Mortgage Loans in a Mortgage Loan Package,
the date identified as such in the related Assignment and Conveyance.
Xxxxxxx Mac: Formerly known as The Federal Home Loan Mortgage Corporation
or any successor thereto.
Xxxxxxx Mac Guide: The Xxxxxxx Mac Single-Family Seller/Servicer Guide and
all amendments or additions thereto.
Index: With respect to any ARM Loan, the index set forth in the applicable
Mortgage Note that is added to the Margin to determine the Mortgage Interest
Rate on each Interest Rate Adjustment Date. In the event the Index becomes
unavailable for any reason, the Seller shall select an alternative index, in
accordance with the terms of the Mortgage Note, and such alternative index shall
thereafter be the Index for such Mortgage loan.
Insurance Proceeds: Proceeds of any Mortgage Insurance Policy, any title
policy, any hazard insurance policy, or any other insurance policy covering a
Mortgage Loan or the related Mortgaged Property, including any amounts required
to be deposited in the Collection Account pursuant to Section 4.10, to the
extent such proceeds are not to be applied to the restoration of the related
Mortgaged Property or released to the Mortgagor in accordance with Customary
Servicing Procedures.
Interest Change Frequency: As to any ARM Loan, the period of time between
each Interest Rate Adjustment Date, as set forth in the related Mortgage Note.
5
Interest Rate Adjustment Date: As to any ARM Loan, the date specified in a
Mortgage Note on which the Mortgage Interest Rate for the related Mortgage Loan
is subject to adjustment.
Interest Rate Decrease Maximum: As to any ARM Loan, the maximum amount, if
any, that the Mortgage Interest Rate can adjust downwards after any Interest
Rate Adjustment Date, determined in accordance with the related Mortgage Note.
Interest Rate Increase Maximum: As to any ARM Loan, the maximum amount, if
any, that the Mortgage Interest Rate can adjust upwards after any Interest Rate
Adjustment Date, determined in accordance with the related Mortgage Note.
Late Collections: With respect to any Mortgage Loan, all amounts (other
than Monthly Advances) received during any Due Period, whether as late payments
of Monthly Payments or as Insurance Proceeds, Liquidation Proceeds, Condemnation
Proceeds, or otherwise, which represent late payments or collections of Monthly
Payments due but delinquent for a previous Due Period and not previously
recovered.
Liquidated Mortgage Loan: As to any Remittance Date, any Mortgage Loan in
respect of which the Seller has determined in accordance with the servicing
procedures specified herein, as of the end of the related Due Period that all
Liquidation Proceeds that it expects to recover with respect to the disposition
of the related Mortgage Loan have been recovered.
Liquidation Expenses: Out of pocket expenses (exclusive of overhead) which
are incurred by the Seller in connection with the liquidation of any Mortgage
Loan and not recovered under any insurance policy, such expenses including,
without limitation, reasonable and necessary legal fees and expenses actually
incurred and any related and unreimbursed expenditures for real estate property
taxes or property restoration, preservation or insurance against casualty loss
or damage.
Liquidation Proceeds: Cash 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, or in connection with the
sale of the Mortgaged Property if the Mortgaged Property is acquired in
satisfaction of the Mortgage Loan.
Liquidation Report: The report described in Section 4.14.
Loan-to-Value Ratio: With respect to any Mortgage Loan, the original
principal balance of such Mortgage Loan divided by the Appraised Value of the
related Mortgaged Property.
Loss Mitigation Alternatives: Loss mitigation activities, including but not
limited to modifications, assumptions, deeds-in-lieu, and preforeclosure sales,
intended to reduce the Purchaser's potential costs and losses that might
otherwise result from pursuing foreclosure on a delinquent Mortgage Loan.
6
Lost Note Affidavit: A lost note affidavit in a form acceptable to the
Purchaser, that provides indemnification to the Purchaser and its successors and
assigns for any costs or losses directly related to the absence of the original
Mortgage Note.
Margin: With respect to each ARM Loan, the fixed percentage amount set
forth in the related Mortgage Note as shown in the attached Exhibit A, which
amount is added on each Interest Rate Adjustment Date to the Index in accordance
with the terms of the related Mortgage Note to determine the Mortgage Interest
Rate for such Mortgage Loan.
Maturity Date: With respect to any Mortgage Loan, the maturity date of the
related Mortgage Note and Mortgage, as specified therein.
Maximum Mortgage Interest Rate: As to any ARM Loan, the maximum rate of
interest that may be charged at any time pursuant to the related Mortgage Note.
MERS: Mortgage Electronic Registration Systems, Inc., a subsidiary of
MERSCORP, Inc.
MERS System: The electronic mortgage registration system maintained by
MERS.
Minimum Mortgage Interest Rate: As to any ARM Loan, the minimum rate of
interest, if any, that may be charged at any time pursuant to the related
Mortgage Note.
Monthly Advance: As defined in Section 5.3.
Monthly Payment: The scheduled monthly payment of principal and interest on
a Mortgage Loan which is payable by a Mortgagor from time to time under the
related Mortgage Note.
Mortgage: The mortgage, mortgage deed, deed of trust, or other instrument
creating a first lien on or first priority ownership interest in an estate in
fee simple in real property securing a Mortgage Note including any riders,
addenda, assumption agreements, or modifications relating thereto.
Mortgage File: With respect to any Mortgage Loan, a file pertaining to such
Mortgage Loan that contains the mortgage documents pertaining to such Mortgage
Loan which are specified in Exhibit B attached hereto and any additional
mortgage documents pertaining to such Mortgage Loan required to be added to such
mortgage file pursuant to this Agreement.
Mortgage Insurance Policy: With respect to any Mortgage Loan, the policy of
mortgage guaranty insurance (including all endorsements thereto) issued with
respect to such Mortgage Loan, if any, or any replacement policy.
Mortgage Insurer: The named insurer under any Mortgage Insurance Policy.
7
Mortgage Interest Rate: As to each Mortgage Loan at any time, the annual
rate at which interest accrues on such Mortgage Loan at such time pursuant to
the related Mortgage Note.
Mortgage Loan: An individual mortgage loan that is subject to the terms of
this Agreement, each such mortgage loan originally sold and subject to this
Agreement being identified on the Mortgage Loan Schedule attached hereto as
Exhibit A.
Mortgage Loan Package: A pool of Mortgage Loans sold to the Purchaser by
the Seller on a Closing Date.
Mortgage Loan Schedule: The schedule of Mortgage Loans to be annexed hereto
as Exhibit A on the Closing Date in both hard copy and floppy disk, such
schedule setting forth at least the following information with respect to each
Mortgage Loan to the extent applicable: (1) the Seller's Mortgage Loan
identifying number; (2) the Mortgagor's first and last name; (3) the street
address of the Mortgaged Property including the state and zip code; (4) a code
indicating type of occupancy (e.g. primary residence, etc.); (5) the type of
residential units constituting the Mortgaged Property; (6) the original months
to maturity or the remaining months to maturity from the Cut-off Date, in any
case based on the original amortization schedule and, if different, the maturity
expressed in the same manner but based on the actual amortization schedule; (7)
the Loan-to-Value Ratio at origination; (8) the Mortgage Interest Rate as of the
Cut-off Date; (9) the stated Maturity Date; (10) the amount of the Monthly
Payment as of the Cut-off Date; (11) the original principal amount of the
Mortgage Loan; (12) the principal balance of the Mortgage Loan as of the close
of business on the Cut-off Date, after deduction of payments of principal due on
or before the Cut-off Date whether or not collected; (13) the Interest Rate
Adjustment Date; (14) the Margin; (15) the Interest Rate Increase Maximum; (16)
the Maximum Mortgage Interest Rate; (17) a code indicating the purpose of the
loan (i.e., purchase, rate and term refinance, equity take-out refinance); (18)
a code indicating the documentation style (i.e., full, alternative or reduced);
(19) a code indicated if the Mortgage Loan is subject to a Mortgage Insurance
Policy; and (20) the Appraised Value of the Mortgaged Property;. With respect to
the Mortgage Loans in the aggregate, the Mortgage Loan Schedule shall set forth
the following information, as of the Cut-off Date: (1) the number of Mortgage
Loans; (2) the current aggregate outstanding principal balance of the Mortgage
Loans; (3) the weighted average Mortgage Interest Rate of the Mortgage Loans;
(4) the weighted average maturity of the Mortgage Loans; (5) the weighted
average months to roll; and (6) the weighted average Maximum Mortgage Interest
Rate.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage, including any riders or addenda thereto.
Mortgaged Property: The property securing a Mortgage Note pursuant to the
related Mortgage.
Mortgagor: The obligor on a Mortgage Note.
Officers' Certificate: A certificate signed by the Chairman of the Board,
the Vice Chairman of the Board, the President or a Vice President and by the
Treasurer, the Secretary or one of the Assistant Treasurers or Assistant
8
Secretaries of the Seller, as applicable, and delivered to the Purchaser as
required by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be an employee of
the Seller, reasonably acceptable to the Purchaser.
Pass-Through Rate: With respect to each Mortgage Loan, the annual rate at
which interest thereon shall be remitted to the Purchaser pursuant to this
Agreement (which is the Mortgage Interest Rate less the Servicing Fee Rate, and
which rate shall be net of the cost of any lender-paid Mortgage Insurance
Policy), in each case computed on the basis of a 360-day year consisting of
twelve 30-day months. For ARM Loans, the Pass-Through Rate may change in
accordance with changes in the Mortgage Interest Rate.
Pass-Through Transfer: The sale or other transfer (which may include one or
more related, intermediate transfers (but not whole loan transfers) in a whole
loan format to one or more Affiliates of the Purchaser) of some or all of the
Mortgage Loans to a trust or another Person as a part of a transaction that
involves (A) the sale of participation certificates evidencing an interest in
such Mortgage Loans or (B) the public issuance or private placement of
securities evidencing an interest in such Mortgage Loans, which securities also
may evidence an interest in other mortgage loans, may be issued through a REMIC
and may, as a condition to their issuance, be required to be rated "AA/Aa" or
higher by the Rating Agencies.
Permitted Instruments: Any one or more of the following obligations or
securities:
(i) direct obligations of, or obligations fully guaranteed as to
principal and interest by, the United States or any agency or
instrumentality thereof, provided such obligations are backed by the full
faith and credit of the United States;
(ii) repurchase obligations with respect to any security described in
clause (i) above, provided that the unsecured long-term obligations of the
party agreeing to repurchase such obligations are at the time rated by
Standard & Poor's Rating Services, a division of XxXxxx-Xxxx Companies, in
its highest rating category;
(iii) federal funds, certificates of deposit, time deposits and
bankers' acceptances of any bank or trust company incorporated under the
laws of the United States or any state, provided that the short-term debt
obligations of such bank or trust company (or, in the case of the principal
bank in a bank holding company system, the long-term debt obligations of
the bank holding company) at the date of acquisition thereof have been
rated by Standard & Poor's Rating Services, a division of XxXxxx-Xxxx
Companies, in its highest rating category;
(iv) commercial paper of any corporation incorporated under the laws
of the United States or any state thereof which on the date of acquisition
has been rated by Standard & Poor's Rating Services, a division of
XxXxxx-Xxxx Companies, in its highest short-term rating category; and
9
(v) any other obligation or security acceptable to Standard & Poor's
Rating Services, a division of XxXxxx-Xxxx Companies, in respect of
mortgage pass-through certificates rated in its highest rating category, as
evidenced by a letter from Standard & Poor's Corporation to such effect.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Principal Prepayment: Any payment or other recovery of principal on a
Mortgage Loan (other than Condemnation Proceeds, Insurance Proceeds and
Liquidation Proceeds) which is received in advance of its scheduled Due Date,
including any prepayment penalty or premium thereon to the extent received, and
is not accompanied by an amount of interest representing scheduled interest due
on any date or dates in any month or months subsequent to the month of
prepayment.
Principal Prepayment Period: With respect to any Remittance Date, the
calendar month preceding the month in which such Remittance Date occurs.
Purchase Date: As to any Agency Transfer, Pass-Through Transfer or Whole
Loan Transfer, the date on which the sale or transfer of Mortgage Loans is
effective.
Purchase Price: The price paid on the related Closing Date, by the
Purchaser to the Seller pursuant to the related Commitment Letter in exchange
for the Mortgage Loans purchased on such Closing Date as provided in Section
2.1.
Purchase Price Percentage: As to each Mortgage Loan, that percentage of par
paid by the Purchaser for such Mortgage Loan as set forth in the Mortgage Loan
Schedule.
Purchaser: Wachovia Bank, National Association and all successors in
interest pursuant to Section 7.6 hereof.
Qualified Depository: (i) a depository, the long-term unsecured debt
obligations of which are rated by Xxxxx'x Investors Service, Inc. or Standard &
Poor's Ratings Group (or a comparable rating agency) in one of its three highest
rating categories; (ii) the corporate trust department of a national bank; (iii)
a depository which fully insures the Collection Account and the Escrow Account
with insurance provided by the FDIC; or (iv) Wachovia Bank, National
Association.
Qualified Substitute Mortgage Loan: A mortgage loan eligible to be
substituted by the Seller for a Deleted Mortgage Loan which must, on the date of
such substitution, (i) have an outstanding principal balance, after deduction of
all scheduled payments due in the month of substitution (or in the case of a
substitution of more than one mortgage loan for a Deleted Mortgage Loan, an
aggregate principal balance), not in excess of the outstanding principal balance
10
of the Deleted Mortgage Loan (the amount of any shortfall will be deposited in
the Collection Account by the Seller in the month of substitution); (ii) have a
Mortgage Interest Rate not less than the Mortgage Interest Rate and not more
than 1% greater than the Mortgage Interest Rate of the Deleted Mortgage Loan;
(iii) have a remaining term to maturity not greater than and not more than one
year less than that of the Deleted Mortgage Loan; (iv) be of the same type as
the deleted Mortgage Loan (e.g., if the Deleted Mortgage Loan is a 3/1 ARM Loan,
the substituted loan must be a 3/1 adjustable rate mortgage loan with the same
Mortgage Interest Rate caps); (v) have a Loan-to-Value Ratio not in excess of
the Loan-to-Value Ratio of the Deleted Mortgage Loan; and (vi) comply with each
representation and warranty (respecting individual Mortgage Loans) set forth in
Section 3.1 hereof.
Rating Agency: Any nationally recognized statistical credit rating agency,
including but not limited to Xxxxx'x Investors Service, Inc, and Standard &
Poor's Ratings Group.
Reconstitution Agreements: The agreement or agreements entered into by the
Purchaser, the Seller, Xxxxxx Mae or Xxxxxxx Mac or certain third parties on the
Reconstitution Date(s) with respect to ten (10) or more of the Mortgage Loans
(unless otherwise agreed to by the Purchaser and the Seller), in connection with
a Pass-Through Transfer, Whole-Loan Transfer or an Agency Transfer as set forth
in Section 7.6, including, but not limited to, (i) a Xxxxxx Mae Mortgage Selling
and Servicing Contract, a Pool Purchase Contract, and any and all servicing
agreements and tri-party agreements reasonably required by Xxxxxx Xxx with
respect to a Xxxxxx Mae Transfer, (ii) a Purchase Contract and all purchase
documents associated therewith as set forth in the Xxxxxxx Xxx Xxxxxxx' &
Servicers' Guide, and any and all servicing agreements and tri-party agreements
reasonably required by Xxxxxxx Mac with respect to a Xxxxxxx Mac Transfer, and
(iii) a Pooling and Servicing Agreement and/or a subservicing/master servicing
agreement and related custodial/trust agreement and related documents with
respect to a Pass-Through Transfer.
Reconstitution Date: The date or dates on which any or all of the Mortgage
Loans serviced under this Agreement shall be removed from this Agreement and
reconstituted as part of an Agency Transfer, Whole Loan Transfer or a
Pass-Through Transfer pursuant to Section 7.6 hereof. On such date or dates, the
Mortgage Loans transferred shall cease to be covered by this Agreement and the
Seller's servicing responsibilities shall cease under this Agreement with
respect to the related transferred Mortgage Loans.
Record Date: With respect to any Remittance Date, the last Business Day of
the month preceding the month of such Remittance Date.
Remittance Date: The 18th day (or if such 18th day is not a Business Day,
the first Business Day immediately preceding such 18th day) of any month,
beginning for the Mortgage Loans in any Mortgage Loan Package with the First
Remittance Date identified in the related Assignment and Conveyance.
REO Property: A Mortgaged Property acquired in foreclosure or by deed in
lieu of foreclosure, as described in Section 4.14.
11
REO Servicing Fee: The fee payable to Seller or Servicer for marketing and
management of REO Property, as described in Section 4.14(c).
Repurchase Price: As defined in Section 3.3(b).
Securities Act: The Securities Act of 1933, as amended from time to time,
or any successor statute thereto.
Seller: National City Mortgage Co., or its successor in interest or any
successor to the Seller under this Agreement appointed as herein provided.
Servicer Guide: The Wachovia Bank Residential Master Servicing Servicer
Guide, formerly known as the First Union National Bank Residential Master
Servicing Servicer Guide, as amended from time to time (available on-line at
xxxx://xxx.xxxxxxxxxxx.xxx).
Servicing Advances: All customary, reasonable and necessary "out of pocket"
costs and expenses (including reasonable attorneys' fees and disbursements)
incurred by the Seller in the performance of its servicing obligations
hereunder, including, but not limited to, the cost of (i) the preservation,
restoration and protection of the Mortgaged Property, (ii) any enforcement or
judicial proceedings, including foreclosures, (iii) the management and
liquidation of the REO Property, and (iv) compliance with the obligations under
Section 4.8.
Servicing Fee: With respect to each Mortgage Loan, the amount of the
annual fee payable to the Seller as compensation for servicing and administering
such Mortgage Loan. Such fee shall, for a period of one full month, be equal to
one-twelfth of the product of (i) the Servicing Fee Rate times (ii) the
outstanding principal balance of such Mortgage Loan. Such fee shall be payable
monthly and shall be computed on the basis of the same principal amount and
period respecting which any related interest payment on such Mortgage Loan is
computed. The Servicing Fee is payable solely from the interest portion
(including recoveries with respect to interest from Late Collections, to the
extent permitted by Section 4.5) of such Monthly Payment or from Late
Collections collected by the Seller, or as otherwise provided under Sections
4.5, 4.14 and 6.3, and only at the time of and with respect to those Mortgage
Loans for which payment is in fact made of the entire amount of the Monthly
Payment.
Servicing Fee Rate: As to each Mortgage Loan, the annual rate at which the
Servicing Fee with respect to such Mortgage Loan will be calculated, as set
forth in the Mortgage Loan Schedule.
Stated Principal Balance: As to each Mortgage Loan (i) the principal
balance of the Mortgage Loan at the related Cut-off Date after giving effect to
payments of principal due on or before such date, whether or not received, minus
(ii) all amounts previously distributed to the Purchaser with respect to the
related Mortgage Loan representing payments or recoveries of principal or
advances in lieu thereof.
12
Sub-Servicer: Any Person who services a Mortgage Loan pursuant to a
Sub-Servicing Agreement.
Sub-Servicing Agreement: Any contract between the Seller and a Sub-Servicer
relating to servicing or administration of one or more Mortgage Loans as
provided in Section 4.1(d).
Transaction: A specific transaction for the sale and purchase of Mortgage
Loans under this Agreement, evidenced by a Commitment Letter and an Assignment
and Conveyance.
Underwriting Guidelines: As defined in Section 3.1(bb).
Unpaid Principal Balance: As to each Mortgage Loan that was not a Qualified
Substitute Mortgage Loan, as of any date of determination, (i) the outstanding
principal balance of such Mortgage Loan as of the Cut-Off Date, after
application of payments due on or before the Cut-Off Date, minus (ii) the
principal portion of all payments made by or on behalf of the Mortgagor (other
than Monthly Advances) that were not due on or before the Cut-Off Date. As to
each Mortgage Loan that was a Qualified Substitute Mortgage Loan, as of any date
of determination, (i) the outstanding principal balance of such Mortgage Loan as
of the date of substitution of the application of payments due on or before such
date, minus (ii) the principal portion of all payments made by or on behalf of
the Mortgagor (other than Monthly Advances) that were not due on or before such
date.
Vice President: With respect to the Seller, any vice president, whether or
not designated by a number or a word or words added before or after the title
"vice president."
Whole Loan Transfer: The sale or other transfer of some or all of the
Mortgage Loans in a whole loan and/or participation certificate format to a
third party, which sale or transfer is not a Pass-Through Transfer.
[THE REMAINDER OF THIS PAGE WAS LEFT BLANK INTENTIONALLY.]
13
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; POSSESSION OF MORTGAGE
FILES; BOOKS AND RECORDS; DELIVERY OF MORTGAGE LOAN
DOCUMENTS; RECORDATION OF ASSIGNMENTS OF MORTGAGE
Section 2.1 Conveyance of Mortgage Loans; Possession of Mortgage Files;
Purchase Price
The Seller, simultaneously with the payment of the Purchase Price shall
execute and deliver to the Purchaser an Assignment and Conveyance with respect
to the related Mortgage Loan Package in the form attached hereto as Exhibit L.
Pursuant to Section 2.3, on or prior to the related Closing Date, the Seller
shall have delivered the Mortgage Loan Documents for each Mortgage Loan in the
Mortgage Loan Package to the Purchaser or its designated Custodian.
The Seller's execution and delivery of an Assignment and Conveyance shall
be deemed to sell, transfer, assign, set over and convey to the Purchaser,
without recourse, but subject to the terms and provisions of this Agreement, all
the right, title and interest of the Seller in and to the related Mortgage
Loans.
The documents comprising each Mortgage File that are not required to be so
tendered to the Purchaser pursuant to Section 2.3 are and shall be held in trust
by the Seller for the benefit of the Purchaser as the owner thereof, and the
Seller's possession of such documents so held by the Seller is at the will of
the Purchaser for the sole purpose of servicing the related Mortgage Loan, and
such holding and possession by the Seller is in a custodial capacity only. Upon
the execution and delivery hereof, the legal and beneficial ownership of each
Mortgage Note, each Mortgage, and each of the other documents comprising the
Mortgage File with respect to each Mortgage Loan is vested in the Purchaser and
the ownership of all records and documents with respect to each Mortgage Loan
prepared by or which come into the possession of the Seller shall immediately
vest in the Purchaser and shall be held and maintained, in trust, by the Seller
at the will of the Purchaser in such custodial capacity only. The documents
comprising each Mortgage File so held by the Seller shall be readily available
to the Purchaser and shall be segregated from the other books and records of the
Seller and shall be appropriately marked to clearly reflect the sale of the
related Mortgage Loan to the Purchaser. The Seller shall release its custody of
any such documents only in accordance with written instructions from the
Purchaser unless such release is required as incidental to the Seller's
servicing of the Mortgage Loans or is in connection with a repurchase or
substitution of any Mortgage Loan pursuant to Section 3.3.
On the Closing Date, Purchaser shall pay to Seller for the Mortgage Loans
the sum of (i) the Stated Principal Balance of the Mortgage Loans multiplied by
the Purchase Price Percentage, plus (ii) an amount equal to accrued interest on
the Mortgage Loans at the Mortgage Interest Rate, from and including the Cut-Off
Date through and including the day before the Closing Date. The payment by
Purchaser shall be made by wire transfer before 4:00pm, Eastern Time, in
immediately available funds to an account designated by Seller. If any
miscalculation is reflected in the purchase price for the Mortgage Loans, the
14
party benefiting from such error shall pay an amount sufficient to correct the
error. The Purchaser shall own and be entitled to receive with respect to each
Mortgage Loan purchased, (1) all scheduled principal due after the Cut-off Date,
(2) all other recoveries of principal collected after the Cut-off Date
(provided, however, that all scheduled payments of principal due on or before
the Cut-off Date and collected by the Seller after the Cut-off Date shall belong
to the Seller), and (3) all payments of interest on the Mortgage Loans minus
that portion of any such interest payment that is allocable to the period prior
to the Cut-off Date. The Unpaid Principal Balance of each Mortgage Loan as of
the Cut-off Date is determined after application to the reduction of principal
of payments of principal due on or before the Cut-off Date whether or not
collected. Therefore, for the purposes of this Agreement, payments of scheduled
principal and interest prepaid for a Due Date beyond the Cut-off Date shall not
be applied to the principal balance as of the Cut-off Date. Such prepaid amounts
shall be the property of the Purchaser. All payments of principal and interest
due on a Due Date following the Cut-off Date shall belong to the Purchaser.
Section 2.2 Books and Records
The Seller shall be responsible for maintaining, and shall maintain, a
complete set of books and records for each Mortgage Loan that shall be clearly
marked to reflect the ownership of each Mortgage Loan by the Purchaser. Any
funds received on or in connection with a Mortgage Loan shall be held by the
Seller in trust for the benefit of the Purchaser as the beneficial owner of the
Mortgage Loans.
Record title to each Mortgage and the related Mortgage Note as of the
related Closing Date shall be in the name of the Seller; provided, however, that
if a Mortgage has been recorded in the name of MERS or its designee, the Seller
is shown as the owner of the related Mortgage Loan on the records of MERS for
purposes of the system of recording transfers of beneficial ownership of
mortgages maintained by MERS. Notwithstanding the foregoing, ownership of each
Mortgage and the related Mortgage Note shall be vested solely in the Purchaser
or the appropriate designee of the Purchaser, as the case may be. All rights
arising out of the Mortgage Loans including, but not limited to, all funds
received by the Seller after the applicable Cut-Off Date on or in connection
with a Mortgage Loan as provided in Article IV hereof shall be vested in the
Purchaser or one or more designees of the Purchaser; provided, however, that all
such funds received on or in connection with a Mortgage Loan as provided in
Article IV hereof shall be received and held by the Seller in trust for the
benefit of the Purchaser or the assignee of the Purchaser, as the case may be,
as the owner of the Mortgage Loans pursuant to the terms of this Agreement.
It is the express intention of the parties that the transactions
contemplated by this Agreement be, and be construed as, a sale of the Mortgage
Loans by the Seller and not a pledge of the Mortgage Loans by the Seller to the
Purchaser to secure a debt or other obligation of the Seller. Consequently, the
sale of each Mortgage Loan shall be reflected as a purchase on the Purchaser's
business records, tax returns and financial statements, and as a sale of assets
on the Seller's business records, tax returns and financial statements.
15
Section 2.3 Delivery of Mortgage Loan Documents Regarding Mortgage Loans;
Assignments of Mortgage
(a) At least ten Business Days prior to the Closing Date (or as otherwise
specified in the Commitment Letter) the Seller has delivered or will deliver to
the Purchaser (or its designated Custodian) pursuant to written instructions
from the Purchaser each of the following documents with respect to each Mortgage
Loan:
(i) The original Mortgage Note, endorsed "Pay to the order of
________________, without recourse," and signed in the name of the Seller
by an authorized officer, with all intervening endorsements showing a
complete chain of title from the originator of such Mortgage Loan to the
Seller, or a Lost Note Affidavit with a copy of the original Mortgage Note
attached. In the event that the Mortgage Loan was acquired by the Seller in
a merger, the endorsement must be by " , successor by merger to [name of
predecessor]"; and in the event that the Mortgage Loan was acquired or
originated by the Seller while doing business under another name, the
endorsement must be by " , formerly known as [previous name]."
(ii) The original Mortgage, with evidence of recording thereon, or a
copy thereof certified by the public recording office in which such
Mortgage has been recorded, or if the original Mortgage has been delivered
for recording to the appropriate public recording office of the
jurisdiction in which the Mortgaged Property is located but has not yet
been returned to the Seller by such recording office, a true copy of such
original Mortgage so certified by the Seller, together with a certificate
of the Seller certifying that such original Mortgage has been so delivered
to such recording office.
(iii) A certified true copy of an original Assignment of Mortgage,
from the Seller to ________________ (or to MERS, as nominee for Wachovia
Bank, National Association, if so specified in the related Commitment
Letter), so certified by the Seller, which assignment shall be in form and
substance acceptable for recording; provided, however, that if the related
Mortgage has been recorded in the name of MERS, no Assignment of Mortgage
will be required to be prepared or delivered and, instead, the Seller shall
take all actions as are necessary to cause the Purchaser to be shown as the
owner of the related Mortgage Loan on the records of MERS for purposes of
the system of recording transfers of beneficial ownership of mortgages
maintained by MERS. In the event that the Mortgage Loan was acquired by the
Seller in a merger, the Assignment of Mortgage must be by " , successor by
merger to [name of predecessor]"; and in the event that the Mortgage Loan
was acquired or originated by the Seller while doing business under another
name, the Assignment of Mortgage must be by " _____ , formerly known as
[previous name]."
(iv) The original Mortgage Insurance Policy, if any, or certificate of
primary mortgage guaranty insurance, if any; or if the Seller customarily
maintains data regarding primary mortgage insurance in electronic form, the
Seller shall deliver electronic data regarding primary mortgage insurance
16
coverage, including the name or code of the primary Mortgage Insurer, the
certificate number and the percent of coverage to Purchaser within thirty
days after the Closing Date;
(v) The original policy of title insurance and all applicable
endorsements thereto (or copies thereof certified by the title insurer),
provided that if any such original policy of title insurance has not yet
been received by the Seller, the Seller may have delivered to the Purchaser
a true, correct and complete copy of such policy, a title insurance binder,
or a commitment for the issuance of such policy, and an insured closing
agreement, if applicable.
(vi) Originals of all intervening Assignments of Mortgage, with
evidence of recording thereon (or copies thereof certified by the public
recording office in which such Assignments of Mortgage have been recorded),
showing a complete chain of title from the originator to the Seller (or to
MERS, if applicable), provided that if any such original intervening
Assignment of Mortgage has been delivered for recording to the appropriate
public recording office of the jurisdiction in which the Mortgaged Property
is located but has not yet been returned to the Seller by such recording
office, the Seller may have delivered to the Purchaser a true copy of such
original Assignment of Mortgage so certified by the Seller, together with a
certificate of the Seller certifying that such original Assignment of
Mortgage has been so delivered to such recording office.
(vii) Originals, or copies thereof certified by the public recording
office in which such documents have been recorded, if applicable, of all
assumption and modification agreements, if any.
Whenever a true copy of a document is required to be delivered to the
Purchaser pursuant to this Section 2.3(a), the following form of certification
is permitted: "Certified true copy of the original which has been transmitted
for recordation. ____________________, By ________________________."
(b) Promptly following the Closing Date, Seller shall deliver for recording
to the appropriate public recording office of the jurisdiction in which the
Mortgaged Property is located, and shall cause to be duly recorded, each
original Assignment of Mortgage referred to in Section 2.03(a)(iii). All
recording fees relating to the recordation of the Assignments of Mortgage,
together with any fees for title policy endorsements and continuations, shall be
paid by Seller from its own funds. If any such Assignment of Mortgage is
returned unrecorded to Seller because of any defect therein, Seller shall cause
such defect to be cured and such Assignment of Mortgage to be recorded in
accordance with this Section.
(c) Within 30 days following receipt thereof, the Seller shall deliver to
the Purchaser or Custodian, if so directed by Purchaser, the following documents
with respect to each Mortgage Loan:
17
(i) for each Mortgage Loan in respect of which the Seller previously
tendered to the Purchaser only a certified true, correct and complete copy
of the original Mortgage pursuant to Section 2.03(a)(ii) and the
certificate referred to therein, the original of such Mortgage, with
evidence of recording thereon,
(ii) for each Mortgage Loan in respect of which the Seller previously
tendered to the Purchaser only a copy of the policy of title insurance or a
title insurance binder or commitment pursuant to Section 2.03(a)(v), the
original policy of title insurance with respect to such Mortgage Loan,
(iii) for each Mortgage Loan in respect of which the Seller previously
tendered to the Purchaser only a certified true, correct and complete copy
of any original intervening Assignment of Mortgage pursuant to Section
2.03(a)(vi) and the certificate referred to therein, the original of such
intervening Assignment of Mortgage, with evidence of recording thereon, and
(iv) for each Mortgage Loan in respect of which the Seller previously
tendered to the Purchaser only a certified, true, correct and complete copy
of the Assignment of Mortgage referred to in Section 2.03(a)(iii), the
original of such Assignment of Mortgage, with evidence of recording
thereon.
The Seller shall forward to the Custodian original documents evidencing an
assumption, modification, consolidation or extension of any Mortgage Loan within
one week of their execution, provided, however, that the Seller shall provide
the Custodian with a certified true copy of any such document submitted for
recordation within one week of its execution, and shall provide the original of
any document submitted for recordation or a copy of such document certified by
the appropriate public recording office to be a true and complete copy of the
original within thirty (30) days of its receipt of the recorded document.
In the event that the original (or a copy thereof certified by the public
recording office in which such document has been recorded) of any of the
Mortgage Loan documents described in Section 2.3(a) (except the Assignment of
Mortgage) cannot be delivered on the related Closing Date due to a delay in the
public recording office, the Seller shall deliver or cause to be delivered to
the Purchaser a certified true and correct copy of such documents, and if the
original (or a copy thereof certified by the public recording office in which
such document has been recorded) of any such document is not delivered to the
Purchaser within 180 days after the subject Closing Date, the related Mortgage
Loan shall, upon the request of the Purchaser, be repurchased by the Seller at
the Repurchase Price as described in Section 3.3(b).
(d) Notwithstanding the foregoing, the parties agree that some or all of
the Mortgage Loans subject to this Agreement may be registered on the MERS
System, either through the recordation of a Mortgage showing MERS as nominee for
the originating lender or by the recordation of an Assignment of Mortgage
showing MERS as assignee. The Seller and the Purchaser hereby acknowledge that
18
MERS will have no beneficial interest in any such Mortgage Loan and that the
registration of such a Mortgage Loan with MERS will not in any way affect the
rights, title, interest, obligations, or responsibilities of the parties under
this Agreement, except as expressly provided in this Section 2.3. The Seller and
the Purchaser agree to cooperate in all ways necessary to effectuate the use of
the MERS System for the purpose of facilitating the transfer of such Mortgage
Loans, and notwithstanding any other provisions of this Agreement to the
contrary, agree to accept such documentation and evidence of transfer provided
by MERS under its operating documents to accomplish the transfer of ownership in
such Mortgage Loans. For any Mortgage Loan previously registered on the MERS
System and previously originated in the name of or assigned to MERS, (i) the
Seller shall not be required to deliver any Assignment of Mortgage as described
in Section 2.3(a)(iii); (ii) the Seller shall initiate with MERS electronic
transmissions of MERS identification numbers and such other information as
required by MERS, and such electronic transmissions shall identify the Purchaser
as the owner of such Mortgage Loan; and (iii) the Seller shall pay any fees
charged by MERS in connection with the electronic transfer of evidence of
ownership to the Purchaser. If the Commitment Letter specifies that the Mortgage
Loans are to be assigned to MERS but any Mortgage Loan has not previously been
assigned to MERS or registered in the MERS System, then (i) the Seller shall
prepare and record an Assignment of Mortgage as described in Section 2.3(a)(iii)
and shall promptly transmit the recording information to Purchaser and MERS as
required by MERS; (ii) the Seller shall create MERS identification numbers
relating to each such Mortgage Loan in the manner required by MERS (or shall use
MERS identification numbers provided by Purchaser); (iii) the Seller shall
initiate with MERS electronic transmissions of MERS identification numbers and
such other information as required by MERS, and such electronic transmissions
shall identify the Purchaser as the owner of such Mortgage Loan; and (iv) the
Seller shall pay any fees charged by MERS in connection with the registration of
such Mortgage Loan on the MERS System and the electronic transfer of evidence of
ownership to the Purchaser.
Section 2.4 Closing Documents
(a) On or before the initial Closing Date, the Seller shall submit to the
Purchaser fully executed originals of the following documents:
(i) this Agreement, in four counterparts;
(ii) an Officer's Certificate, in the form of Exhibit G-2 hereto,
including all attachments thereto;
(iii) an Opinion of Counsel to the Seller, in the form of Exhibit G-1
hereto;
(b) The Closing Documents for the Loans to be purchased on each Closing
Date (including the initial Closing Date) shall consist of fully executed
originals of the following documents:
(i) the related Commitment Letter;
19
(ii) if any of the Mortgage Loans has at any time been subject to any
security interest, pledge or hypothecation for the benefit of any Person, a
Security Release Certification, in the form of Exhibit K hereto, executed
by such Person;
(iii) a certificate or other evidence of merger or change of name,
signed or stamped by the applicable regulatory authority, if any of the
Mortgage Loans were acquired by the Seller by merger or acquired or
originated by the Seller while conducting business under a name other than
its present name, if applicable; and
(iv) an Assignment and Conveyance, in the form of Exhibit L hereto.
[THE REMAINDER OF THIS PAGE WAS LEFT BLANK INTENTIONALLY.]
20
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS OF
THE SELLER CONCERNING MORTGAGE LOANS;
REPURCHASE OF MORTGAGE LOANS
Section 3.1 Individual Mortgage Loans
The Seller hereby represents and warrants to and agrees with the Purchaser
that, as to each Mortgage Loan as of the related Closing Date:
(a) The information with respect to such Mortgage Loan set forth on the
Mortgage Loan Schedule is complete, true and correct. In addition, the Seller
shall deliver with respect to such Mortgage Loan complete, true and correct
electronic information for each "required" field and, as applicable, for each
"optional" field as described in the schedule attached as Exhibit A-1.
(b) The Mortgage and the Mortgage Note have not been assigned or pledged,
and, immediately prior to the transfer thereof to the Purchaser pursuant to
Section 2.1, the Seller had good and marketable title thereto, and the Seller is
the sole owner and holder of such Mortgage Loan free and clear of any and all
liens, claims, encumbrances, participation interests, equities, pledges,
charges, or security interests of any nature and has full right and authority,
subject to no interest or participation of, or agreement with, any other party,
to sell and assign such Mortgage Loan pursuant to this Agreement. Upon the
transfer thereof to the Purchaser pursuant to Section 2.1, the Seller will have
taken all actions necessary on its part to be taken so that the Purchaser will
have good indefeasible title to, and will be sole owner of, the Mortgage and the
Mortgage Note, free and clear of any and all liens, claims, encumbrances,
participation interests, equities, pledges, charges, or security interests of
any nature, subject to bankruptcy, insolvency, moratorium, reorganization and
similar laws relating or limiting the enforcement of creditor's rights
generally.
(c) The Mortgage is a valid, subsisting and enforceable first lien on the
Mortgaged Property including all buildings, fixtures, installations and
improvements to the Mortgaged Property, and the Mortgaged Property is free and
clear of all encumbrances and liens having parity with or priority over the
first lien of the Mortgage except for (i) the lien of current real property
taxes and assessments not yet due and payable, (ii) covenants, conditions and
restrictions, rights of way, easements, mineral right reservations and other
matters of public record as of the date of recording of such Mortgage, such
exceptions generally being acceptable under prudent mortgage lending standards
or specifically reflected in the appraisal made in connection with the
origination of such Mortgage Loan, and (iii) other matters to which like
properties are commonly subject that do not materially interfere with the value,
use, enjoyment or marketability of the Mortgaged Property. There are no security
agreements, chattel mortgages, or equivalent documents related to the Mortgage.
21
(d) The terms of the Mortgage and the Mortgage Note have not been impaired,
waived, altered, or modified in any respect, except by a written instrument
which has been recorded, if necessary, to protect the interest of the Purchaser
and which has been delivered to the Purchaser. The substance of any such
alteration or modification is reflected on the Mortgage Loan Schedule and has
been approved, to the extent necessary, by the Mortgage Insurer, if any, and the
insurer under the applicable mortgage title insurance policy.
(e) No instrument of release, waiver, alteration, or modification has been
executed in connection with such Mortgage Loan, and no Mortgagor has been
released, in whole or in part, except in connection with an assumption agreement
which has been approved by the Mortgage Insurer, if any, and which is part of
the Mortgage File and has been delivered to the Purchaser, and the terms of
which are reflected in the Mortgage Loan Schedule.
(f) There is no default, breach, violation, or event of acceleration
existing under the Mortgage or the Mortgage Note, and no event has occurred
which, with the passage of time or with notice and the expiration of any grace
or cure period, would constitute such a default, breach, violation, or event of
acceleration, and neither the Seller nor any seller or servicer, has waived any
such default, breach, violation, or event of acceleration. All taxes,
governmental assessments (including assessments payable in future installments),
insurance premiums, leasehold payments, or ground rents which previously became
due and owing in respect of or affecting the related Mortgaged Property have
been paid, or an escrow of funds has been established for the items identified
in the Mortgage Loan Schedule in an amount sufficient to pay for every such item
which remains unpaid and which has been assessed but is not yet due and payable.
The Seller has not advanced funds, or induced, solicited, or knowingly received
any advance of funds by a party other than the Mortgagor, directly or
indirectly, for the payment of any amount required by the Mortgage or the
Mortgage Note.
(g) The Mortgaged Property is free of material damage and in good repair,
and there is no proceeding pending or threatened for the total or partial
condemnation of the Mortgaged Property, nor has any notice of any such pending
or threatened proceeding been received, so as to adversely impair the value or
marketability of the Mortgaged Property.
(h) There are no mechanics' or similar liens or claims which have been
filed for work, labor, or material (and no rights are outstanding that under law
could give rise to such lien) which are, or may be, liens prior or equal to, or
coordinate with, the lien of the related Mortgage.
(i) All of the improvements which were included for the purpose of
determining the Appraised Value of the Mortgaged Property were completed at the
time that such Mortgage Loan was originated and lie wholly within the boundaries
and building restriction lines of such Mortgaged Property. Except for de minimis
encroachments permitted by either the Xxxxxx Xxx Guides (MBS Special Servicing
Option), no improvements on adjoining properties encroach upon the Mortgaged
Property. No improvement located on or being part of the Mortgaged Property is
in violation of any applicable zoning law or regulation. All inspections,
licenses, and certificates required to be made or issued with respect to all
occupied portions of the Mortgaged Property (including all such improvements
which were included for the purpose of determining the Appraised Value) and,
22
with respect to the use and occupancy of the same, including but not limited to
certificates of occupancy and fire underwriting certificates, have been made or
obtained from the appropriate authorities and the Mortgaged Property is lawfully
occupied under applicable law.
(j) The Seller, its Affiliates, and any prior parties that have had any
interest in the Mortgage, whether as mortgagee, assignee, pledgee, or otherwise,
are (or, during the period in which they held and disposed of such interest,
were) (i) in compliance with any and all applicable licensing requirements of
the laws of the state wherein the Mortgaged Property is located and (ii) are
either (A) organized under the laws of such state, (B) qualified to do business
in such state, (C) federal savings and loan associations or national banks
having principal offices in such state, (D) not doing business in such state, or
(E) not required to qualify to do business in such state.
(k) As of the Closing Date, such Mortgage Loan is not more than 30 days
delinquent in payment of principal and interest and such Mortgage Loan has not
been more than 30 days delinquent in payment of principal and interest since its
origination.
(l) On or prior to the Closing Date, the Seller has, in accordance with
Section 2.3(a), delivered to the Purchaser originals of each of the documents
with respect to such Mortgage Loan specified in Section 2.3(a) (or the documents
specified therein permitted to be delivered in lieu thereof) and the other
documents in the Mortgage File. There are no custodial agreements in effect
adversely affecting the right or ability of the Seller to make the deliveries of
such documents. Each of the documents with respect to such Mortgage Loan
specified in Section 2.3(a), Exhibit B hereto or in the Mortgage File is
genuine, true, correct and complete and has not been altered or modified in any
way except as noted in the Mortgage File, and each is duly executed and in due
and proper form, and is in form acceptable to Xxxxxx Xxx or Xxxxxxx Mac.
(m) The Mortgage Note and the Mortgage are genuine, and each is the legal,
valid and binding obligation of the maker thereof and each party assuming
liability therefor, enforceable in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium, or other similar laws affecting the enforcement of creditors' rights
generally and except that the equitable remedy of specific performance and other
equitable remedies are subject to the discretion of the courts. All parties to
the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage
Note and the Mortgage and convey the estate therein purported to be conveyed,
and the Mortgage Note and the Mortgage have been duly and properly executed by
such parties or pursuant to a valid power-of-attorney. The Mortgagor is a
natural person who is a party to the Mortgage Note and the Mortgage in an
individual capacity or in the capacity of trustee.
(n) The transfer of the Mortgage Note and the Mortgage as and in the manner
contemplated by the Commitment Letter, and this Agreement is sufficient fully to
transfer to the Purchaser all right, title and interest of the Seller thereto as
note holder and mortgagee, subject to bankruptcy, insolvency, moratorium,
reorganization and similar laws relating to or limiting the enforcement of
creditors' rights generally. The Mortgage has been duly assigned and the
Mortgage Note has been duly endorsed as provided in Section 2.3(a). If required,
23
the Assignment of Mortgage delivered to the Purchaser pursuant to Section
2.3(a)(iii) is in recordable form and is acceptable for recording under the laws
of the applicable jurisdiction.
(o) Any and all requirements of any applicable federal, state, or local law
including, without limitation, usury, truth-in-lending, real estate settlement
procedures, consumer credit protection, equal credit opportunity, predatory and
abusive lending, or disclosure laws applicable to national banks or their
operating subsidiaries in connection with the origination of such Mortgage Loan
have been complied with, and the Seller shall maintain, in its possession,
available for the Purchaser's inspection, and shall deliver to the Purchaser or
its designee upon demand, evidence of compliance with all such requirements. The
consummation of the transactions contemplated by this Agreement will not cause
the violation of any such laws.
(p) The proceeds of such Mortgage Loan have been fully disbursed, there is
no requirement for, and the Seller shall not make any, future advances
thereunder. Any future advances made prior to the Cut-Off Date have been
consolidated with the principal balance secured by the Mortgage, and such
principal balance, as consolidated, bears a single interest rate and single
repayment term reflected on the Mortgage Loan Schedule. Other than as provided
in Section 5.3, there is no obligation on the part of the Seller or any other
party to make payments in addition to those made by the Mortgagor. The Unpaid
Principal Balance as of the Cut-Off Date does not exceed the original principal
amount of such Mortgage Loan. Any and all requirements as to completion of any
on-site or off-site improvements and as to disbursements of any escrow funds
therefor have been complied with. All costs, fees and expenses incurred in
making, or closing or recording such Mortgage Loan have been paid.
(q) Such Mortgage Loan is covered by an ALTA mortgage title insurance
policy (and for ARM Loans, has an adjustable rate mortgage endorsement, which
endorsement is substantially in the form of ALTA Form 6.1 or 6.2) or such other
generally used and acceptable form of policy or insurance, all with such form
and content as are acceptable to Xxxxxx Xxx or Xxxxxxx Mac (with environmental
lien endorsement, condominium endorsement, PUD endorsement, and other
endorsements required by Xxxxxx Mae or Xxxxxxx Mac, to the extent applicable),
issued by and the valid and binding obligation of a title insurer acceptable to
Xxxxxx Mae or Xxxxxxx Mac and qualified to do business in the jurisdiction where
the Mortgaged Property is located, insuring the Seller, and its successors and
assigns, as to the first priority lien of the Mortgage in the original principal
amount of such Mortgage Loan, and such mortgage title insurance policy is in
full force and effect.
(r) All improvements upon the Mortgaged Property are insured against loss
by fire, hazards of extended coverage and such other hazards as are customary in
the area where the Mortgaged Property is located, pursuant to insurance policies
conforming to the requirements of Section 4.10 by an insurer acceptable to
Xxxxxx Mae or Xxxxxxx Mac. If the Mortgaged Property is located 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),
such Mortgaged Property is covered by flood insurance. Each individual insurance
policy has been validly issued and is in full force and effect. The Seller has
caused to be performed any and all acts required to preserve the rights and
interests of the Purchaser in all insurance policies required by this Agreement,
24
including, without limitation, notification of insurers, and assignment of
policies or interests therein. Each individual insurance policy contains a
standard mortgagee clause naming the Seller, and its successors and assigns, as
mortgagee and loss payee. All premiums thereon have been paid. The Mortgage
obligates the Mortgagor to maintain all such insurance at the Mortgagor's cost
and expense, and upon the Mortgagor's failure to do so, authorizes the holder of
the Mortgage to obtain and maintain such insurance at the Mortgagor's cost and
expense and to seek reimbursement therefor from the Mortgagor, and the Seller
has not acted or failed to act so as to impair the coverage of any such
insurance policy or the validity, binding effect and enforceability thereof.
(s) There is no valid offset, defense, counterclaim or right of rescission
as to any Mortgage Note or Mortgage, including the obligation of the Mortgagor
to pay the unpaid principal of or interest on such Mortgage Note. All the
applicable terms of the Mortgage Notes relating to ARM Loans pertaining to
adjustments of the Mortgage Interest Rates and the Monthly Payments and payment
adjustments in connection therewith are enforceable and will not affect the
priority of the Mortgage lien.
(t) Each Mortgage Loan was originated by the Seller; or by a savings and
loan association, savings bank, commercial bank, credit union, insurance
company, or similar institution that is supervised and examined by a Federal or
state authority; or by a mortgagee approved by the Secretary of Housing and
Urban Development pursuant to Sections 203 and 211 of the National Housing Act.
Immediately prior to the conveyance of such Mortgage Loan by the Seller to the
Purchaser, the Seller shall have title to such Mortgage Loan.
(u) Principal payments on such Mortgage Loan commenced no more than sixty
days after funds were disbursed in connection with such Mortgage Loan. The
Mortgage Note requires a Monthly Payment that is sufficient to fully amortize
the original principal balance over the remaining term thereof and to pay
interest at the Mortgage Interest Rate. Such Mortgage Loan does not contain
terms or provisions that would result in negative amortization.
(v) Such Mortgage Loan is a conventional residential mortgage loan having
an original term to maturity of not more than thirty years and thirty-one days
as set forth on the Mortgage Loan Schedule, with interest payable in arrears on
the first day of each month. As to any ARM Loan, (1) on the Closing Date and
until the next Interest Rate Adjustment Date, the Mortgage Interest Rate is and
shall be as set forth on the Mortgage Loan Schedule; and (2) on the initial
Interest Rate Adjustment Date set forth in the Mortgage Loan Schedule, and on
the Interest Rate Adjustment Dates occurring every year thereafter, the Mortgage
Interest Rate is subject to adjustment to a new Mortgage Interest Rate equal to
the then current Index plus the Gross Margin, rounded to the nearest .125%,
subject to the Maximum Mortgage Interest Rate, the Minimum Mortgage Interest
Rate, the Interest Rate Increase Maximum and the Interest Rate Decrease Maximum.
(w) The Mortgage contains customary and enforceable provisions which render
the rights and remedies of the holder thereof adequate for the realization
against the Mortgaged Property of the benefits of the security, including (i) in
the case of a Mortgage designated as a deed of trust, by trustee's sale, and
25
(ii) otherwise by judicial foreclosure. There is no homestead, dower, curtesy,
or other exemption or right available to the Mortgagor or any other person that
would interfere with the right to sell the Mortgaged Property at a trustee's
sale or the right to foreclose the Mortgage. The Mortgage contains customary and
enforceable provisions for the acceleration of the payment of the Unpaid
Principal Balance of such Mortgage Loan in the event all or any part of the
related Mortgaged Property is sold or otherwise transferred without the prior
consent of the mortgagee or assignee thereunder. The Mortgage Note is not and
has not been secured by any collateral, pledged account, or other security
except the lien of the Mortgage.
(x) If the Mortgage constitutes a deed of trust, a trustee, duly qualified
under applicable law to serve as such, has been properly designated and
currently so serves and is named in such Mortgage, and no fees or expenses are
or will become payable by the Purchaser to the trustee under the deed of trust,
except in connection with a trustee's sale after default by the Mortgagor.
(y) The Mortgaged Property consists of a single parcel of real property
separately assessed for tax purposes, upon which is erected a detached or an
attached one-to-four family residence, or an individual condominium unit, or an
individual unit in a planned unit development. Such residence, dwelling, or unit
is not (i) a unit in a cooperative apartment, (ii) a property constituting part
of a syndication, (iii) a time share unit, (iv) a property the Mortgagor's
ownership interest in which consists of a leasehold estate, provided that the
Mortgagor's ownership interest may include a ground lease if the Mortgaged
Property is in a location where ground leases are common, such ground lease does
not impair the value of the Mortgaged Property or the lien of the Mortgage, and
such ground lease is acceptable to Xxxxxx Xxx, (v) a mobile home or (vi) a
recreational vehicle.
(z) The Loan-to-Value Ratio of such Mortgage Loan is either (i) not greater
than 80% or (ii) greater than 80% but not greater than 95% and the Mortgage Loan
is insured as to payment defaults to the extent required by Xxxxxx Mae for
mortgage loans purchased by it under a Mortgage Insurance Policy. Any such
Mortgage Insurance Policy is issued by a Mortgage Insurer licensed to do
business in the state in which the Mortgaged Property is located and acceptable
to Xxxxxx Xxx or Xxxxxxx Mac as of the Closing Date. Such Mortgage Insurance
Policy insures the named insured and its successors and assigns and provides
coverage at least until the Mortgage Loan meets the requirements of Xxxxxx Mae
for the termination of such coverage. All provisions of such Mortgage Insurance
Policy have been and are being complied with; such policy is valid and in full
force and effect and all premiums due thereunder have been paid. If the Mortgage
Loan is subject to a Mortgage Insurance Policy, the Mortgagor is obligated under
the Mortgage to maintain such insurance and pay all premiums and charges in
connection therewith, and the Mortgage Interest Rate for such Mortgage Loan as
set forth on the Mortgage Loan Schedule is net of any such insurance premium.
The Seller has no knowledge of any condition or circumstance relating to such
Mortgage Loan that would indicate that the current appraised value of the
Mortgaged Property is less than the Appraised Value at the origination of such
Mortgage Loan.
26
(aa) No action has been taken or omitted by the Seller, and no event has
occurred and no state of facts exists or has existed on or prior to the Closing
Date (whether or not known to the Seller on or prior to such date) which has
resulted or will result in an exclusion from, denial of, or defense to coverage
under the Mortgage Insurance Policy with respect to such Mortgage Loan,
including, without limitation, any exclusions, denials, or defenses which would
limit or reduce the availability of the timely payment of the full amount of the
loss otherwise due thereunder to the insured, whether arising out of actions,
representations, errors, omissions, negligence, or fraud of the Seller, the
related Mortgagor, or any party involved in the application for such coverage,
including the appraisal, plans and specifications and other exhibits or
documents submitted therewith to the insurer under such insurance policy, or for
any other reason under such coverage, but not including the failure of such
insurer to pay by reason of such insurer's breach of such insurance policy or
such insurer's financial inability to pay.
(bb) Such Mortgage Loan was underwritten generally in accordance with the
underwriting guidelines of the Mortgage Loan's originator in effect at the time
such Mortgage Loan was originated and is substantially in conformity with Xxxxxx
Xxx or Xxxxxxx Mac general "A" underwriting guidelines and was underwritten to a
"full documentation" or "alternative documentation" underwriting program
acceptable to Xxxxxx Mae or Xxxxxxx Mac (collectively, the "Underwriting
Guidelines"). If such Mortgage Loan is within conforming loan size limits, it is
eligible for sale to Xxxxxx Mae or Xxxxxxx Mac.
(cc) There exist no deficiencies in excess of $200 with respect to escrow
deposits and payments, if such are required, for which customary arrangements
for repayment thereof have not been made or which the Seller expects not to be
cured, and no escrow deposits or payments of other charges or payments due the
Seller have been capitalized under the Mortgage or the Mortgage Note. With
respect to each Mortgage, Seller has within the last twelve months (unless such
Mortgage Loan was originated within such twelve-month period) analyzed the
required Escrow Payments for each Mortgage Loan and adjusted the amount of such
payments so that, assuming all required payments are timely made, any deficiency
will be eliminated on or before the first anniversary of such analysis, or any
overage will be refunded to the Mortgagor, in accordance with RESPA and any
other applicable law. The Mortgagor with respect to such Mortgage Loan is
required to make customary escrow payments unless such Mortgagor paid a fee at
the closing of the Mortgage Loan to waive the escrow requirement.
(dd) Such Mortgage Loan does not have a shared appreciation feature or
other contingent interest feature, and no ARM Loan is convertible to a fixed
Mortgage Interest Rate. The Mortgage Loan is not a graduated payment Mortgage
Loan. No Mortgage Loan was made in connection with (a) the construction or
rehabilitation of a Mortgaged Property (provided, however, that a Mortgage Loan
may be a permanent loan that has been modified from a construction loan) (b)
facilitating the trade-in or exchange of a Mortgaged Property.
(ee) No statement, report, or other document constituting a part of the
Mortgage File, and no certificate, document, or other instrument delivered to
Purchaser pursuant hereto or in connection herewith, contains any untrue
statement of fact or omits to state a fact necessary to make the statements
contained therein not misleading.
27
(ff) The origination, servicing and collection practices, if any, used by
the Seller with respect to such Mortgage Loan have been in all material respects
legal, proper, prudent and customary in the mortgage origination and servicing
business.
(gg) As to each ARM Loan, the Mortgagor has received all disclosure
materials, if any, required by applicable law with respect to the making of
adjustable-rate mortgage loans and the Mortgagor has executed one or more
statements acknowledging such receipt.
(hh) All amounts received with respect to such Mortgage Loan after the
Cut-Off Date and required to be deposited in the Collection Account have been so
deposited in the Collection Account and are, as of the Closing Date, in the
Collection Account.
(ii) The appraisal report with respect to the Mortgaged Property contained
in the Mortgage File (i) was signed prior to the approval of the application for
such Mortgage Loan by a qualified appraiser, duly appointed by the originator of
such Mortgage Loan, who had no interest, direct or indirect, in the Mortgaged
Property or in any loan made on the security thereof, and whose compensation is
not affected by the approval or disapproval of such application and (2)
otherwise meets the requirements of the Xxxxxx Mae Guides (MBS Special Servicing
Option). Any Mortgage Loan with an original principal balance of $650,000 or
higher must have at least one full appraisal on the Uniform Residential
Appraisal form (Xxxxxx Xxx Form 1004).
(jj) Each Mortgage Note relating to an ARM Loan has been timely and
appropriately adjusted, if such adjustment is required, and the respective
Mortgagor timely and appropriately advised.
(kk) Such Mortgage Loan is being serviced by Seller or under a
Sub-Servicing Agreement with a Sub-Servicer.
(ll) No Mortgage Loan contains provisions pursuant to which Monthly
Payments are (a) paid or partially paid with funds deposited in any separate
account established by the Seller, the Mortgagor, or anyone on behalf of the
Mortgagor, (b) paid by any source other than the Mortgagor or (c) contains any
other similar provisions which may constitute a "buydown" provision.
(mm) The Mortgagor has not notified Seller, and Seller has no knowledge, of
any relief requested or allowed to the Mortgagor under the Servicemembers Civil
Relief Act.
(nn) No Mortgage Loan was selected for inclusion under this Agreement from
Seller's portfolio of comparable loans on any basis that would be intentionally
adverse to the interest of Purchaser.
(oo) The payment history provided by the Seller to the Purchaser with
respect to such Mortgage Loan is true, complete and correct.
28
(pp) The Seller has no knowledge of any circumstances or condition with
respect to the Mortgage, the Mortgaged Property, the Mortgagor or the
Mortgagor's credit standing that can reasonably be expected to cause the
Mortgage Loan to be an unacceptable investment, cause the Mortgage Loan to
become delinquent, or adversely affect the value of the Mortgage Loan.
(qq) The Mortgaged Property is lawfully occupied under applicable law. All
inspections, licenses and certificates required to be made or issued with
respect to all occupied portions of the Mortgaged Property and, with respect to
the use and occupancy of the same, including but not limited to certificates of
occupancy, have been made or obtained from the appropriate authorities.
(rr) If the Mortgaged Property is a condominium unit or a planned unit
development (other than a de minimis planned unit development) such condominium
or planned unit development project meets the eligibility requirements for
Xxxxxx Xxx or Xxxxxxx Mac.
(ss) No error, omission, misrepresentation, negligence, fraud or similar
occurrence with respect to a Mortgage Loan has taken place on the part of the
Seller or the Mortgagor in connection with the origination or servicing of the
Mortgage Loan or on the part of any appraiser, builder, developer or any other
person involved in the origination of the Mortgage Loan.
(tt) Since the date of origination of the Mortgage Loan, the Mortgaged
Property has not been subject to any bankruptcy proceeding or foreclosure
proceeding and the Mortgagor has not filed for protection under applicable
bankruptcy laws. No Mortgagor was at the time of origination of the Mortgage
Loan, or to the best of Seller's knowledge is currently, a debtor in any federal
or state bankruptcy or insolvency proceeding.
(uu) The Mortgaged Property is in material compliance with all applicable
environmental laws pertaining to environmental hazards including, without
limitation, asbestos, and neither the Seller nor to the Seller's knowledge, the
related Mortgagor, has received any notice of any violation or potential
violation of such law.
(vv) No Mortgage Loan that is a cash-out refinancing is secured by
Mortgaged Property in the State of Texas.
(ww) No Mortgage Loan is a simple interest Mortgage Loan.
(xx) No Mortgagor was required to purchase any credit life, disability,
accident or health insurance product as a condition of obtaining the extension
of credit. No Mortgagor obtained a prepaid single premium credit life,
disability, accident or health insurance policy in connection with the
origination of the Mortgage Loan. None of the proceeds of the Mortgage Loan were
used to finance single-premium credit life insurance policies.
(yy) The Seller has obtained a life of loan, transferable real estate tax
service contract with an Approved Tax Service Contract Provider on each Mortgage
Loan and such contract is assignable without penalty, premium or cost to the
Purchaser. Such Tax Service Contract shall contain complete and accurate
information with respect to the Mortgage Loan and the Mortgaged Property.
29
(zz) The Seller has obtained a life of loan, transferable flood
certification contract for each Mortgage Loan and such contract is assignable
without penalty, premium or cost to the Purchaser. Such flood certification
contract shall be maintained in the Mortgage File and shall contain complete and
accurate information with respect to the Mortgage Loan and the Mortgaged
Property.
(aaa) Each original Mortgage was recorded and, except for those Mortgage
Loans subject to the MERS System, all subsequent assignments of the original
Mortgage (other than the assignment to the Purchaser) have been recorded in the
appropriate jurisdictions wherein such recordation is necessary to perfect the
lien thereof, or is in the process of being recorded.
(bbb) Each Mortgage Loan has a non-zero FICO Score, and such FICO Score
shall be at least as high as the minimum FICO Score referenced in the Commitment
Letter (including any attachment or exhibit thereto).
(ccc) The Mortgage Loan is not subject to a prepayment penalty, prepayment
charge or other restriction on the prepayment of such Mortgage Loan prior to the
maturity date thereof.
(ddd) No Mortgage Loan is (a) subject to, covered by or in violation of the
provisions of the Home Ownership and Equity Protection Act of 1994, as amended
("HOEPA"), (b) classified as "high cost", "covered", "high risk home",
"threshold", or "predatory" loans under any other applicable state, federal, or
local law, including any predatory or abusive lending laws (or similarly
classified loans using different terminology under a law imposing heightened
scrutiny or additional legal liability for residential mortgage loans having
high interest rates, points and/or fees), (c) in violation of any state or local
law or ordinance similar to HOEPA, or (d) classified as a "High Cost Loan" or
"Covered Loan" as defined in the S&P LEVELS Glossary.
(eee) The Company is in compliance with all applicable anti-money
laundering laws and regulations, including the relevant provisions of the Bank
Secrecy Act, as amended by the USA Patriot Act of 2001 and its implementing
regulations, and related government rules and regulations (collectively, the
"Patriot Act"); the Company has established an anti-money laundering compliance
program and with respect to the Patriot Act has (i) developed internal policies,
procedures and controls reasonably designed to prevent it from being used for
money laundering or the financing of terrorist activities, (ii) designated a
compliance officer, (iii) implemented an ongoing employee training program and
(iv) developed an independent audit function to test the compliance program.
(fff) No predatory or deceptive lending practices, including but not
limited to, the extension of credit to the applicable Mortgagor without regard
for said Mortgagor's ability to repay the Mortgage Loan and the extension of
credit to said Mortgagor which has no apparent benefit to said Mortgagor, were
employed by the originator of the Mortgage Loan in connection with the
origination of the Mortgage Loan. Each Mortgage Loan is in compliance with the
anti-predatory lending eligibility for purchase requirements of Xxxxxx Mae's
Guide.
30
(ggg) No Mortgage Loan secured by owner occupied real property or an owner
occupied manufactured home located in the State of Georgia was originated (or
modified) on or after October 1, 2002 through and including March 6, 2003.
(hhh) No Mortgage Loan (a) is secured by property located in the State of
New York; (b) had an unpaid principal balance at origination of $300,000 or
less, and (c) has an application date on or after April 1, 2003, the terms of
which Mortgage Loan equal or exceed either the APR or the points and fees
threshold for "high-cost home loans," as defined in Section 6-L of the New York
State Banking Law.
(iii) To the knowledge of Sller and National City Bank of Indiana ("NCBI"),
no Mortgagor was encouraged or required, by Seller or National City Bank of
Indiana ("NCBI") or any other originator to Seller and National City Bank of
Indiana ("NCBI"), to select a Mortgage Loan product offered by Seller or NCBI or
such other originator to Seller and National City Bank of Indiana ("NCBI") which
is a higher cost product designed for less creditworthy borrowers, unless at the
time of the Mortgage Loan's origination, (i) such Mortgagor did not qualify
taking into account credit history and debt to income ratios for a lower cost
credit product then offered by Seller or NCBI or such other originator to Seller
and National City Bank of Indiana ("NCBI"), or (ii) such Mortgagor selected a
higher cost product based on product parameters and such Mortgagor's
preferences.
(jjj) Each Mortgage Loan fully conforms to all underwriting guidelines and
other requirements of Xxxxxx Xxx and Xxxxxxx Mac other than with respect to the
original principal amount. The Mortgage Loan was underwritten in accordance with
the Underwriting Guidelines in effect at the time the Mortgage Loan was
originated.
(kkk) To the knowledge of Sller and National City Bank of Indiana ("NCBI"),
all fees and charges (including finance charges) and whether or not financed,
assessed, collected or to be collected in connection with the origination and
servicing of each Loan have been disclosed in writing to the Mortgagor in
accordance with applicable state and federal laws and regulations applicable to
Seller or NCBI or other originator to Seller and National City Bank of Indiana
("NCBI") in connection with the origination of Mortgage Loans. .
(lll) All points and fees related to each Mortgage Loan were disclosed in
writing to the related Mortgagor in accordance with applicable state and federal
law and regulation. Except in the case of a Mortgage Loan in an original
principal amount of less than $60,000 which would have resulted in an
unprofitable origination, no related Mortgagor was charged "points and fees"
(whether or not financed) in an amount greater than 5% of the principal amount
of such loan, such 5% limitation is calculated in accordance with Xxxxxx Mae's
anti-predatory lending requirements as set forth in the Xxxxxx Xxx Selling
Guide.
(mmm) The Company will transmit full-file credit reporting data for each
Mortgage Loan pursuant to Xxxxxx Mae Guide Announcement 95-19 and for each Loan,
Company agrees it shall report one of the following statuses each month as
31
follows: new origination, current, delinquent (30-, 60-, 90-days, etc.),
foreclosed, or charged-off.
(nnn) Each imaged document represents a true, complete, and correct copy of
the original document in all respects, including, but not limited to, all
signatures conforming with signatures contained in the original document, no
information having been added or deleted, and no imaged document having been
manipulated or altered in any manner. Each imaged document is clear and legible,
including, but not limited to, accurate reproductions of photographs. No
original documents have been or will be altered in any manner.
(ooo) The destruction of any original document or the inability of Seller
to produce a copy of such original document upon request shall not cause (i) any
delay in the enforcement of the Mortgage Loan, (ii) any inability to collect all
amounts due under the Mortgage Loan, including without limitation, in connection
with a foreclosure or other sale of the Mortgaged Property, (iii) private
institutional investors to regard the Mortgage Loan as an unacceptable
investment or adversely affect the value or marketability of the Mortgage Loan,
or (iv) any claims from holders of mortgage-backed securities collateralized by
the Mortgage Loan.
(ppp) With respect to each Mortgage Loan, the Seller has fully and
accurately furnished complete information on the related borrower credit files
to Equifax, Experian and Trans Union Credit Information Company, in accordance
with the Fair Credit Reporting Act and its implementing regulations.
Section 3.2 Representations of the Seller
The Seller hereby represents and warrants to the Purchaser that as of each
Closing Date or as of such date specifically provided herein:
(a) The Seller is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization and is an
operating subsidiary of National City Bank of Indiana. As a national bank
operating subsidiary, it is regulated by the Office of the Comptroller of the
Currency and is subject to all applicable laws and regulations. Seller is duly
authorized to carry on its business as now being conducted as an operating
subsidiary of a national bank, and in any event the Seller is in compliance with
all applicable laws to the extent necessary to ensure the enforceability of the
related Mortgage Loan in accordance with the terms of this Agreement; the Seller
has the corporate power and authority to hold each Mortgage Loan, to sell each
Mortgage Loan, to enter into, execute and deliver this Agreement, and all
documents and instruments executed and delivered pursuant hereto and to perform
its obligations in accordance therewith; the execution, delivery and performance
of this Agreement by the Seller and the consummation of the transactions
contemplated hereby, including, without limitation, the repurchase obligations
hereinafter contained, have been duly and validly authorized; this Agreement
evidences the valid, binding and enforceable obligations of the Seller; and all
requisite corporate action has been taken by the Seller to make this Agreement
valid and binding upon the Seller in accordance with its terms.
32
(b) No consent, approval, authorization, or order of any court or
governmental agency or body relating to the transactions contemplated by this
Agreement and the transfer of legal title to the Mortgage Loans to the
Purchaser, is required as to the Seller or, if required, such consent, approval,
authorization, or order has been or will, prior to the Closing Date, be obtained
except for any recordations of Assignments of the Mortgages to or for the
benefit of the Purchaser pursuant to this Agreement.
(c) The consummation of the transactions contemplated by this Agreement,
including without limitation the transfer and assignment of the Mortgage Loans
to or for the benefit of the Purchaser pursuant to this Agreement and the
fulfillment of or compliance with the terms and conditions of this Agreement,
are in the ordinary course of business of the Seller and will not result in the
breach of any term or provision of the articles of incorporation or by-laws of
the Seller or result in the breach of any term or provision of, or conflict with
or constitute a default under, or result in the acceleration of any obligation
under, any agreement, indenture, loan or credit agreement, or other instrument
to which the Seller or its property is subject, or result in the violation of
any law, rule, regulation, order, judgment, or decree to which the Seller or its
property is subject.
(d) There is no action, suit, proceeding or investigation pending or to the
Seller's knowledge, threatened against the Seller which, either in any one
instance or in the aggregate, is likely to result in any material impairment of
the right or ability of the Seller to carry on its business substantially as now
conducted, or any material liability to the Seller, or any material adverse
change in the financial condition of the Seller, or which would draw into
question the validity of this Agreement, or the Mortgage Loans, or of any action
taken or to be taken in connection with the obligations of the Seller
contemplated herein or therein, or which would be likely to impair materially
the ability of the Seller to perform its obligations hereunder or thereunder.
(e) The Seller is an approved seller/servicer of conventional mortgage
loans for Xxxxxx Xxx or Xxxxxxx Mac in good standing and is a HUD approved
mortgagee pursuant to Section 203 of the National Housing Act, with the
facilities, procedures, and experienced personnel necessary for the sound
servicing of mortgage loans of the same type as the Mortgage Loans. The Seller
is in good standing to sell mortgage loans to and service mortgage loans for
Xxxxxx Mae or Xxxxxxx Mac, and no event has occurred, including but not limited
to a change in insurance coverage, which would make the Seller unable to comply
with Xxxxxx Mae, Xxxxxxx Mac or HUD eligibility requirements or which would
require notification to either Xxxxxx Mae, Xxxxxxx Mac or HUD.
(f) The Seller acknowledges and agrees that the Servicing Fee, as
calculated at the Servicing Fee Rate, represents reasonable compensation for
performing such services and that the entire Servicing Fee shall be treated by
the Seller, for accounting and tax purposes, as compensation for the servicing
and administration of the Mortgage Loans pursuant to this Agreement.
33
(g) The Mortgage Loans were selected from among the outstanding fixed rate
one- to four-family or one- to two-family adjustable rate mortgage loans in the
Seller's portfolio at the related Closing Date as to which the representations
and warranties set forth in Section 3.1 could be made and such selection (i) was
not made in a manner so as to affect adversely the interests of the Purchaser
and (ii) did not identify the Mortgage Loans as being less desirable or valuable
than other comparable Mortgage Loans in the Seller's portfolio as of the Cut-off
Date.
(h) The disposition of the Mortgage Loans shall be treated as a sale on the
books and records of the Seller. The Seller has determined that the disposition
of the Mortgage Loans pursuant to this Agreement will be afforded sale treatment
for accounting and tax purposes. The Seller shall maintain a complete set of
books and records for each Mortgage Loan, which shall be clearly marked to
reflect the ownership of such Mortgage Loan.
(i) The Seller has delivered to the Purchaser financial statements as to
its last three complete fiscal years and any later quarter ended more than 60
days prior to the execution of this Agreement. All such financial statements
fairly present the pertinent results of operations and changes in financial
position at the end of each such period of the Seller and its subsidiaries and
have been prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as set forth in the
notes thereto. There has been no change in the business, operations, financial
condition, properties or assets of the Seller since the date of the Seller's
financial statements that would have a material adverse effect on its ability to
perform its obligations under this Agreement. The Seller has completed any forms
requested by the Purchaser in a timely manner and in accordance with the
provided instructions.
(j) The Seller has not dealt with any broker, investment banker, agent or
other person that may be entitled to any commission or compensation in
connection with the sale of the Mortgage Loans..
Section 3.3 Repurchase and Substitution
(a) It is understood and agreed that the representations and warranties set
forth in Sections 3.1 and 3.2 shall survive the sale of the Mortgage Loans to
the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding
any restrictive or qualified endorsement on any Mortgage Note or Assignment of
Mortgage or the examination of any Mortgage File. That fact that Purchaser has
conducted or has failed to conduct any partial or complete examination of any
Mortgage File either prior to the Closing Date or thereafter shall not affect
Purchaser's rights to demand repurchase, substitution or other relief as
provided herein.
(b) Upon discovery by the Seller or the Purchaser of a breach of any of the
representations and warranties set forth in Sections 3.1 and 3.2 that materially
and adversely affects the value of any Mortgage Loan or the interest of the
Purchaser in any Mortgage Loan (or, in the case of the representations and
warranties set forth in Section 3.2, the value of the Mortgage Loans or the
interest of the Purchaser in the Mortgage Loans), the party discovering such
breach shall give prompt written notice to the other. The Seller shall use its
best efforts to promptly cure in all material respects any such breach or defect
within 90 days of the earlier of either discovery by or notice to the Seller of
34
such breach or defect, and, if such breach or defect cannot be or is not cured
within such 90-day period, the Seller shall, except in the case Section 3.2, at
the option of the Purchaser, repurchase the affected Mortgage Loan, or in the
case of a breach of a representation and warranty set forth in Section 3.2,
repurchase such of the affected Mortgage Loans so that, after such repurchase,
such breach or defect is cured in all material respects. Any such repurchase
shall be at a price equal to the Stated Principal Balance on the date of such
repurchase of each Mortgage Loan to be repurchased, plus (y) interest on each
such Stated Principal Balance at the applicable Pass-Through Rate from the date
to which interest has last been paid and distributed to the Purchaser to the
date of such repurchase, plus (z) for any repurchase requested by Purchaser
within two months after the Closing Date, the product of the Stated Principal
Balance times the excess (if any) by which the Purchase Price Percentage exceeds
par (the "Repurchase Price"). Any such repurchase shall be accomplished by
deposit in the Collection Account of the amount of the Repurchase Price.
Notwithstanding the foregoing, if the Seller discovers or receives notice of any
such breach or defect, the Seller may, with the prior written consent of the
Purchaser, rather than repurchase any Mortgage Loan as provided above, remove
such Mortgage Loan (a "Deleted Mortgage Loan") and substitute in its place a
Qualified Substitute Mortgage Loan or Qualified Substitute Mortgage Loans;
provided, however, such substitution shall be completed within 120 days after
the related Closing Date. If the Seller has no Qualified Substitute Mortgage
Loan or Qualified Substitute Mortgage Loans, it shall repurchase the Mortgage
Loan or Mortgage Loans, as the case may be, in the manner provided in this
Section 3.3(b). It is understood by the parties hereto that a breach of the
representations and warranties made in Sections 3.1 (ccc), (ddd), (fff), (hhh)
or (www) will be deemed to materially and adversely affect the value of the
related Mortgage Loan or the interest of the Purchaser therein.
(c) For each of the Qualified Substitute Mortgage Loans substituted for a
Deleted Mortgage Loan, the Seller shall deliver to the Purchaser the documents
specified in Section 2.3(a), with the Mortgage Note endorsed as required by
Section 2.3(a)(i) and, where applicable, original documents having evidence of
recording thereon. The Seller shall also take such actions with respect to the
documents pertaining to each such Qualified Substitute Mortgage Loan as are
required to be taken pursuant to Sections 2.3(c) with respect to the Mortgage
Loans originally subject to this Agreement (and, for purposes of applying the
requirements of Sections 2.3(c) to any Qualified Substitute Mortgage Loan,
references in such Sections to the Closing Date shall be deemed to be references
to the applicable date of substitution of such Qualified Substitute Mortgage
Loan). The Seller shall not effect such substitution until it has received the
written consent of the Purchaser, which consent shall not be unreasonably
withheld. The Seller shall deposit in the Collection Account the Monthly Payment
due on each Qualified Substitute Mortgage Loan in the month following the date
of such substitution (with the interest portion thereof adjusted to the
applicable Pass-Through Rate), and the Monthly Payment due with respect to such
Qualified Substitute Mortgage Loan in the month of substitution shall be
retained by the Seller. For the month of substitution, distributions to the
Purchaser shall include the Monthly Payment due on such Deleted Mortgage Loan in
the month of substitution, and the Seller shall thereafter be entitled to retain
all amounts subsequently received by the Seller in respect of such Deleted
Mortgage Loan. The Seller shall amend the Mortgage Loan Schedule to reflect the
removal of such Deleted Mortgage Loan from the terms of this Agreement and the
35
substitution of the Qualified Substitute Mortgage Loan or Qualified Substitute
Mortgage Loans and shall give written notice to the Purchaser that such
substitution has taken place, which notice shall have attached thereto a copy of
such amended Mortgage Loan Schedule. Upon such substitution, each such Qualified
Substitute Mortgage Loan shall be subject to the terms of this Agreement in all
respects, and the Seller shall be deemed to have made, with respect to such
Qualified Substitute Mortgage Loan or Qualified Substitute Mortgage Loans, as of
the date of substitution, the representations and warranties set forth in
Sections 3.1 and 3.2 (and, for purposes of applying such representations and
warranties to each such Qualified Substitute Mortgage Loan, references in such
Sections to the Closing Date shall be deemed to be references to such date of
substitution of such Qualified Substitute Mortgage Loan).
(d) The Purchaser shall immediately take all steps necessary to effect the
reconveyance of any repurchased Mortgage Loan or Deleted Mortgage Loan,
including all documentation with respect thereto, to the Seller. The Seller
shall pay all costs and expenses incurred in connection with the repurchase of
any Mortgage Loan and the substitution for any Deleted Mortgage Loan.
(e) For any month in which the Seller substitutes one or more Qualified
Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Seller
shall determine the amount, if any, by which the aggregate outstanding principal
balance of all such Qualified Substitute Mortgage Loans as of the date of
substitution is less than the aggregate Stated Principal Balance of all such
Deleted Mortgage Loans (after application of scheduled principal payments due in
the month of substitution). The amount of such shortfall shall be distributed by
the Seller in the month of substitution pursuant to Section 5.1. Accordingly, on
the date of such substitution, the Seller shall deposit from its own funds into
the Collection Account an amount equal to the amount of such shortfall.
(f) In addition to such cure, repurchase and substitution obligations of
the Seller set forth in this Section 3.3, the Seller shall indemnify and hold
harmless the Purchaser against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees actually incurred and related
costs, judgments and other costs and expenses resulting from any claim, demand,
defense, or assertion grounded upon, or resulting from a breach of any of the
Seller's representations and warranties contained in this Agreement. It is
understood and agreed that the obligations of the Seller set forth in this
Section 3.3 to cure, repurchase, or substitute for a defective Mortgage Loan and
to indemnify the Purchaser pursuant to this sub-section constitute the sole
remedies available to the Purchaser respecting a breach of the representations
and warranties set forth in Sections 3.1.
(g) Any cause of action against the Seller relating to or arising out of
the breach of any representation and warranty made in Sections 3.1 and 3.2 shall
accrue as to any Mortgage Loan upon (i) discovery of such breach by the
Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the
Seller to cure such breach or repurchase or substitute a Qualified Substitute
Mortgage Loan or Qualified Substitute Mortgage Loans for such Mortgage Loan as
specified above, and (iii) demand upon the Seller by the Purchaser for all
amounts payable in respect of such Mortgage Loan.
36
(h) With respect to any Mortgage Loan, if the related Mortgagor has not
made the Monthly Payment due under the Mortgage Note within 30 days after the
first Due Date following the Closing Date, then the Seller agrees to repurchase
such Mortgage Loan from the Purchaser as provided herein. Within ten Business
Days after the Purchaser's request for repurchase of any such Mortgage Loan, the
Seller shall repurchase at the Repurchase Price any Mortgage Loan that meets
such condition.
(i) With respect to any Mortgage Loan that prepays in full within 60 days
after the Closing Date, the Seller shall repay to the Purchaser, within 10
Business Days afer request from the Purchaser, any premium over par originally
paid by the Purchaser for such Mortgage Loan.
Section 3.4 Review of Mortgage Loans
From the related Closing Date until the date 30 days after the related
Closing Date, the Purchaser shall have the right to review the Mortgage Files
and obtain BPO's on the Mortgaged Properties relating to the Mortgage Loans
purchased on the related Closing Date, with the results of such BPO reviews to
be communicated to the Seller in accordance with the Commitment Letter and
stipulations of the trade. In addition, the Purchaser shall have the right to
reject any Mortgage Loan which in the Purchaser's discretion, reasonably
exercised (i) fails to conform to Underwriting Guidelines, (ii) is underwritten
without verification of the Mortgagor's income and assets and there is no credit
report or FICO Score, (iii) the Purchaser deems the Mortgage Loan to not be an
acceptable credit risk (for reasons including but not limited to Purchaser's
determination that a FICO Score obtained by Purchaser within 30 days before or
after the related Closing Date reflects a value below the minimum threshold as
stated in the related Commitment Letter or otherwise reflects a significant
decline from the FICO Score used in underwriting the Mortgage Loan), or (iv) the
value of the Mortgaged Property pursuant to any BPO varies by more than plus or
minus 15% from the lesser of (A) the original appraised value of the Mortgaged
Property or (B) the purchase price of the Mortgaged Property as of the date of
origination. In the event that the Purchaser so rejects any Mortgage Loan, the
Seller shall repurchase the rejected Mortgage Loan at the Repurchase Price in
the manner prescribed in Section 3.3 upon receipt of notice from the Purchaser
of the rejection of such Mortgage Loan. Any rejected Mortgage Loan shall be
removed from the terms of this Agreement. The Seller shall make available all
files required by Purchaser in order to complete its review, including all
CRA/HMDA required data fields. To the extent that during the course of the
Purchaser's initial review, the Purchaser discovers that the Mortgage Loans do
not otherwise meet the Seller's Underwriting Guidelines or the terms of the
Transaction, the Purchaser shall have the right to carry out additional due
diligence reviews beyond the original 30-day period which additional due
diligence reviews shall be at the expense of the Purchaser (or such other period
prescribed in the related Commitment Letter). Purchaser's decision to increase
its due diligence review or obtain additional BPO's or other property
evaluations is at its sole discretion. The additional review may be for any
reason including but not limited to credit quality, property valuations, and
data integrity. Any review performed by the Purchaser prior to the Closing Date
does not limit the Purchaser's rights or the Seller's obligations under this
section.
[THE REMAINDER OF THIS PAGE WAS LEFT BLANK INTENTIONALLY.]
37
ARTICLE IV
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 4.1 Seller to Act as Servicer
(a) The Seller, as independent contract servicer, shall service and
administer the Mortgage Loans in accordance with this Agreement and Customary
Servicing Procedures and the Servicer Guide and shall have full power and
authority, acting alone, to do any and all things in connection with such
servicing and administration that the Seller may deem necessary or desirable and
consistent with the terms of this Agreement, including but not limited to all
action permitted or required to be taken under any related Mortgage Insurance
Policy. In servicing and administering the Mortgage Loans, the Seller shall
employ Customary Servicing Procedures, except when such procedures conflict with
the requirements under this Agreement or the Servicer Guide.
(b) Consistent with the terms of this Agreement, the Seller may waive,
modify, defer, or vary any term of any Mortgage Loan or consent to the
postponement of strict compliance with any such term or in any manner grant
indulgence to any Mortgagor if, in the Seller's reasonable determination, such
waiver, modification, deferral, variation, postponement, or indulgence is in the
best interests of the Purchaser; provided, however, that the Seller may not
permit any modification with respect to any Mortgage Loan without the
Purchaser's prior written consent. Without limiting the generality of the
foregoing, the Seller is hereby authorized and empowered to execute and deliver
on behalf of itself and the Purchaser all instruments of satisfaction,
cancellation, partial or full release, or discharge and all other comparable
instruments with respect to the Mortgage Loans and the Mortgaged Properties,
provided that the Seller may not release any Mortgage without the consent of the
Purchaser. If reasonably required by the Seller, the Purchaser shall furnish the
Seller with any powers of attorney and other documents necessary or appropriate
to enable the Seller to carry out its servicing and administrative duties under
this Agreement.
(c) As to each ARM Loan, the Seller shall make periodic Mortgage Interest
Rate and Monthly Payment Adjustments, as applicable, in strict compliance with
(i) the terms of the Mortgage and Mortgage Note (ii) all applicable law and
(iii) Customary Servicing Procedures. The Seller shall establish procedures to
monitor the Index in order to ensure that it uses the appropriate value for the
Index in determining an interest rate change. The Seller shall execute and
deliver all appropriate notices required by (i) the terms of the Mortgage and
Mortgage Note (ii) all applicable laws and (iii) Customary Servicing Procedures
regarding such Mortgage Interest Rate adjustments and Monthly Payment
adjustments. If the Seller fails to make a timely and correct Mortgage Interest
Rate and Monthly Payment adjustment, the Seller shall use its own funds to
satisfy any shortage in the Mortgagor's Monthly Payment for so long as such
shortage continues. In the event the Index, as specified in the related Mortgage
Note, becomes unavailable for any reason, the Seller shall select an alternative
38
index, in accordance with the terms of the Mortgage Note, and such alternative
index shall thereafter be the Index for such Mortgage Loan.
(d) The Seller has entered into or (to the extent approved by the
Purchaser) may enter into Sub-Servicing Agreements with Sub-Servicers for the
servicing and administration of all or part of the Mortgage Loans. Except as
expressly set forth herein, references in this Agreement to actions taken or to
be taken by the Seller in servicing the Mortgage Loans include actions taken or
to be taken by a Sub-Servicer on behalf of the Seller.
(e) The Seller, for the benefit of the Purchaser, shall enforce the
obligations of each Sub-Servicer under the related Sub-Servicing. The Company
shall pay the costs of such enforcement at its own expense.
(f) Notwithstanding any Sub-Servicing Agreement, any of the provisions of
this Agreement relating to agreements or arrangements between the Seller or a
Sub-Servicer or reference to actions taken through a Sub-Servicer or otherwise,
the Seller shall remain obligated and liable to the Purchaser for the servicing
and administering of the Mortgage Loans in accordance with 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 Sub-Servicer and to the same extent and under the same terms and conditions
as if the Seller alone were servicing and administering the Mortgage Loans.
(g) Any Sub-Servicing Agreement that may be entered into and any other
transactions or services relating to the Mortgage Loans involving a Sub-Servicer
in its capacity as such and not as an originator shall be deemed to be between
the Sub-Servicer and the Seller alone, and the Purchaser shall not be deemed a
party thereto and shall have no claims, rights, obligations, duties or
liabilities thereunder.
Section 4.2 Liquidation of Mortgage Loans
(a) In the event that any payment due under any Mortgage Loan is not paid
when the same becomes due and payable, or in the event the Mortgagor fails to
perform any other covenant or obligation under the Mortgage Loan and such
failure continues beyond any applicable grace period, the Seller shall take such
action as it shall deem to be in the best interest of the Purchaser but in any
event in accordance with this Agreement and the Servicer Guide. In such
connection, the Seller shall from its own funds make all necessary and proper
Servicing Advances. The Seller shall remit all Liquidation Proceeds to the
Purchaser in accordance with the requirements of the Servicer Guide. For each
REO Property, the Seller shall submit an invoice to the Purchaser (accompanied
by documentation evidencing the related expense in such form as the Purchaser
shall reasonably require) for reimbursement of outstanding Servicing Advances
within 30 days after the Mortgaged Property becomes an REO Property.
(b) If any Mortgage Loan becomes 90 days or more delinquent and the
Mortgagor and Seller have not agreed to a Loss Mitigation Alternative, at the
Purchaser's election but with no less than 30 days notice, the Purchaser may
39
terminate the Seller's servicing under this Agreement and assume servicing of
such Mortgage Loan upon reimbursement of any outstanding Servicing Advances and
Monthly Advances.
(c) Seller shall provide a Standard Fidelity report each month.
Section 4.3 Collection of Mortgage Loan Payments
Continuously from the date hereof until the principal and interest on all
Mortgage Loans are paid in full, the Seller will proceed diligently to collect
all payments due under each of the Mortgage Loans when the same shall become due
and payable. With respect to those Mortgage Loans as to which the Seller
collects Escrow Payments, the Seller will ascertain or estimate 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 Escrow Payments
payable by the Mortgagors will be sufficient to pay such charges as and when
they become due and payable.
Section 4.4 Establishment of Collection Account; Deposits in Collection
Account
(a) The Seller shall segregate and hold all funds collected and received
pursuant to the Mortgage Loans separate and apart from any of its own funds and
general assets and shall establish and maintain one or more accounts
(collectively, the "Collection Account"), in the form of time deposit or demand
accounts, which may be interest bearing, titled "_________________, in trust for
Wachovia Bank, National Association and successor Holders from time to time of
Conventional Residential Adjustable-Rate [or Fixed Rate] First Mortgage Loans."
The Collection Account shall be an Eligible Account. Notwithstanding the
foregoing, prior to remittance, such funds may be deposited in an Eligible
Account that commingles such funds with additional funds held by the Seller for
the benefit of the Purchaser. The existence of any such Collection Account shall
be evidenced by (A) a certification in the form of Exhibit C attached hereto, in
the case of an account established with the Seller, or (B) a letter agreement in
the form of Exhibit D attached hereto in the case of an account held by an
institution other than the Seller. In either case, a copy of such certification
or letter agreement shall be furnished to the Purchaser on or prior to the
Closing Date and thereafter to any Purchaser upon request.
(b) The Seller shall deposit in the Collection Account on a daily basis
within one Business Day of receipt, and shall retain therein, the following
payments and collections received by it or otherwise made by the Seller
subsequent to the Cut-Off Date (other than in respect of principal and interest
on the Mortgage Loans due on or before the Cut-Off Date):
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(ii) all payments on account of interest on the Mortgage Loans
adjusted, in the case of payment with respect to each Mortgage Loan, to the
Pass-Through Rate applicable to such Mortgage Loan;
40
(iii) all Insurance Proceeds, other than Insurance Proceeds included
in Liquidation Proceeds and other than Insurance Proceeds to be held in the
Escrow Account and applied to the restoration and repair of the Mortgaged
Property or released to the Mortgagor in accordance with Customary
Servicing Procedures;
(iv) all Condemnation Proceeds which are not released to the Mortgagor
in accordance with Customary Servicing Procedures;
(v) any amount required to be deposited in the Collection Account
pursuant to Sections 4.4(c), 4.11, 4.14, 5.1(b), 5.3, or 6.2(b);
(vi) any amounts payable in connection with the repurchase of any
Mortgage Loan pursuant to Section 3.3(b), and all amounts required to be
deposited by the Seller in connection with the substitution of any
Qualified Substitute Mortgage Loan or Qualified Substitute Mortgage Loans
pursuant to Section 3.3(e); and
(vii) with respect to each Principal Prepayment in full, an amount (to
be paid by the Seller out of its own funds) that, when added to all amounts
allocable to interest received in connection with the Principal Prepayment
in full, equals one month's interest on the amount of principal so prepaid
for the month of prepayment at the applicable Pass-Through Rate, which
deposit shall be made from the Seller's own funds, without reimbursement
therefor; provided, however, that in lieu of the amount described in the
foregoing clause of this Subsection 4.4(b)(vii), Seller may remit each
Principal Prepayment in full, together with per diem interest at the
Pass-Through Rate, within five Business Days of Seller's receipt of such
Principal Prepayment in full.
The foregoing requirements for deposit in the Collection Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, the Servicing Fee and payments in the nature of late payment
charges need not be deposited by the Seller in the Collection Account and may be
retained by the Seller to the extent permitted by the Servicer Guide.
(c) The Seller may invest, or, if the Collection Account is maintained at
an institution other than the Seller, the Seller may direct such other
institution to invest, whereupon such other institution shall invest, the funds
on deposit from time to time in the Collection Account in Permitted Instruments,
which investments shall mature not later than the Business Day next preceding
the Remittance Date next following the date of such investment, except that if
such Permitted Instrument is an obligation of the institution that maintains the
Collection Account, then such Permitted Instrument shall mature not later than
such next Remittance Date. All such investments shall be made in the name of the
Seller or its nominee. All income and gain realized from any such investment
shall be for the benefit of the Seller and shall be subject to its withdrawal or
order from time to time. The amount of any losses incurred in respect of any
such investment shall be deposited in the Collection Account by the Seller out
if its own funds immediately, without reimbursement therefor.
41
Section 4.5 Permitted Withdrawals from the Collection Account
(a) The Seller may, from time to time, withdraw funds from the Collection
Account for the following purposes:
(i) to make payments to the Purchaser in the amounts and in the manner
provided for in Section 5.1 and to pay itself the Servicing Fee and other
servicing compensation in accordance with Section 6.3(a) (to the extent
that such Servicing Fee and other servicing compensation has been deposited
in the Collection Account);
(ii) to reimburse itself for unreimbursed Monthly Advances made
pursuant to Section 5.3, the Seller's right to reimburse itself pursuant to
this subclause (ii) being limited to amounts received on the related
Mortgage Loan which represent Late Collections respecting which any such
Monthly Advance was made;
(iii) to reimburse itself for any unpaid Servicing Fees and
unreimbursed Servicing Advances, provided that except for reimbursement for
reasonable attorneys' fees and disbursements incurred in connection with
any enforcement or judicial proceedings commenced hereunder, the Seller's
right to reimburse itself pursuant to this subclause (iii) with respect to
any Mortgage Loan shall be limited to related Late Collections and such
other amounts as may be collected by the Seller from the Mortgagor or
otherwise relating to the Mortgage Loan; and further provided that the
Seller shall not reimburse itself pursuant to this provision from
Liquidation Proceeds from foreclosures or sales of REO Property but shall
be reimbursed instead pursuant to the provisions of Sections 4.2 and 4.12.
(iv) to reimburse itself for expenses incurred by and reimbursable to
it pursuant to Section 7.1;
(v) to pay to itself any interest earned on funds deposited in the
Collection Account;
(vi) if there shall be deposited in the Collection Account any amount
not required to be deposited therein, including the Servicing Fee and other
servicing compensation, to withdraw such amount from the Collection
Account, any provision herein to the contrary notwithstanding;
(vii) to make payments of or reimburse such amounts as specified in
Section 7.3; and
(viii) to clear and terminate the Collection Account upon the
termination of this Agreement.
42
(b) The Seller shall maintain records sufficient to justify on a Mortgage
Loan-by-Mortgage Loan basis any withdrawal from the Collection Account pursuant
to Section 4.5(a)(ii) and (iii).
Section 4.6 Establishment of Escrow Account; Deposits in Escrow Account
(a) The Seller shall segregate and hold all funds collected and received
pursuant to the Mortgage Loans 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,
titled "_______, in trust for Wachovia Bank, National Association and successor
Holders from time to time of Conventional Residential Adjustable-Rate [or Fixed
Rate] First Mortgage Loans, and various Mortgagors." The Escrow Account shall be
an Eligible Account. Notwithstanding the foregoing, prior to remittance, such
funds may be deposited in an Eligible Account that commingles such funds with
additional funds held by the Seller for the benefit of the Purchaser. The
creation of any Escrow Account shall be evidenced by (A) a certification in the
form of Exhibit E attached hereto, in the case of an account established with
the Seller, or (B) a letter agreement in the form of Exhibit F attached hereto,
in the case of an account held by an institution other than the Seller. In
either case, a copy of such certification or letter agreement shall be furnished
to the Purchaser on or prior to the Closing Date and thereafter to any Purchaser
upon request.
(b) The Seller shall deposit in the Escrow Account on a daily basis within
one Business Day of receipt, and retain therein: (i) all Escrow Payments
collected on account of the Mortgage Loans and (ii) all amounts representing
proceeds of any hazard insurance policy which are to be applied to the
restoration or repair of any Mortgaged Property. The Seller shall make
withdrawals from the Escrow Account only in accordance with Section 4.7. The
Seller shall be entitled to retain any interest earned on funds deposited in the
Escrow Account other than interest on escrowed funds required by law to be paid
to the Mortgagor and, to the extent required by law, the Seller shall pay
interest on escrowed funds to the Mortgagor notwithstanding that the Escrow
Account may not bear interest or that the interest earned on such escrowed funds
is insufficient for such purpose.
Section 4.7 Permitted Withdrawals from the Escrow Account
Withdrawals from the Escrow Account may be made by the Seller only (i) to
effect timely payments of taxes, assessments, water rates, insurance premiums,
fire and hazard insurance premiums, or other items constituting Escrow Payments
for the related Mortgage, (ii) to reimburse the Seller for any Servicing Advance
made by the Seller pursuant to Sections 4.8, 4.10, and 4.11 with respect to a
related Mortgage Loan, (iii) to refund to any Mortgagor any funds found to be in
excess of the amounts required under the terms of the related Mortgage Loan,
(iv) for transfer to the Collection Account in accordance with the terms of this
Agreement, (v) for application to restoration or repair of the Mortgaged
Property, provided the provisions of Section 4.15 have been complied with, (vi)
to pay to the Mortgagor, to the extent required by law, interest on the funds
deposited in the Escrow Account, (vii) to pay to itself any interest earned on
43
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 (viii) to clear and terminate the Escrow Account upon the termination
of this Agreement.
Section 4.8 Payment of Taxes, Insurance and Other Charges
With respect to each Mortgage Loan, the Seller shall maintain accurate
records reflecting the status of property taxes, assessments and other charges
which are or may become a lien upon the Mortgaged Property and the status of
Mortgage Insurance Policy premiums, if any, and fire and hazard insurance
coverage and flood insurance, all as required hereunder, 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 in a manner consistent with Customary Servicing Procedures and
the Servicer Guide. The Seller shall cause all such bills to be paid on a timely
basis and shall from its funds if necessary make a Servicing Advance to make
timely payment of all such bills
Section 4.9 Transfer of Accounts
The Seller may from time to time transfer the Collection Account or the
Escrow Account to a different depository institution with the consent of the
Purchaser, provided that such account shall be and remain an Eligible Account
and shall be evidenced by (i) a certification in the form of Exhibit C or E
attached hereto, in the case of an account established with the Seller, or (ii)
a letter agreement in the form of Exhibit D or F attached hereto, in the case of
an account held by an institution other than the Seller, as the case may be, a
copy of which certification or letter agreement shall be furnished to the
Purchaser.
Section 4.10 Maintenance of Hazard Insurance
The Seller shall cause to be maintained for each Mortgaged Property and for
each REO Property such insurance coverages in such amounts and for such terms as
are required by the Servicer Guide (including but not limited to fire and hazard
insurance with appropriate extended coverage and flood insurance). Seller shall
administer such insurance policies and the proceeds thereof in the manner
prescribed by the Servicer Guide.
Section 4.11 Maintenance of Mortgage Insurance Policies; Collections
Thereunder
(a) Except as set forth in Subsection (b) of this Section 4.11, the Seller
shall maintain in full force and effect a Mortgage Insurance Policy conforming
in all respects to the description set forth in Section 3.1(z), issued by an
insurer described in that Section, with respect to each Mortgage Loan for which
such coverage is required pursuant to Section 3.1(z), if available. The Seller
shall cause the premium for each Mortgage Insurance Policy to be paid on a
timely basis and shall from its own funds if necessary make a Servicing Advance
to pay the premium on a timely basis. The Seller will not cancel or refuse to
renew any such Mortgage Insurance Policy in effect on the Closing Date that is
required to be kept in force under any Mortgage Loan and pursuant to Section
44
3.1(z) unless a replacement Mortgage Insurance Policy for such canceled or
non-renewed policy is obtained from and maintained with an insurer that
satisfies the standards set forth in Section 3.1(z). The Seller shall not take
any action or fail to take any action which would result in non-coverage under
any applicable Mortgage Insurance Policy of any loss which, but for the actions
of the Seller, would have been covered thereunder. In connection with any
assumption or substitution agreement entered into or to be entered into pursuant
to Section 6.1, the Seller shall promptly notify the insurer under the related
Mortgage Insurance Policy, if any, of such assumption or substitution of
liability in accordance with the terms of such policy and shall take all actions
which may be required by such insurer as a condition to the continuation of
coverage under the Mortgage Insurance Policy. If such Mortgage Insurance Policy
is terminated as a result of such assumption or substitution of liability, the
Seller shall obtain a replacement Mortgage Insurance Policy as provided above.
As part of its activities as servicer of the Mortgage Loans, the Seller
agrees to prepare and present, on behalf of itself and the Purchaser, claims
under any Mortgage Insurance Policy in a timely fashion in accordance with the
terms thereof and, in this regard, to take such reasonable action as shall be
necessary to permit recovery under any Mortgage Insurance Policy respecting a
defaulted Mortgage Loan. Pursuant to Section 4.4, any amounts collected by the
Seller under any Mortgage Insurance Policy shall be deposited in the Collection
Account and shall be subject to the terms of the Servicer Guide.
(b) The Seller shall terminate and handle Mortgagor requests for
termination of Mortgage Insurance Policies in accordance with all applicable
law, Customary Servicing Procedures, and the Servicer Guide.
Section 4.12 [Reserved]
Section 4.13 Fidelity Bond; Errors and Omissions Insurance
The Seller shall maintain with responsible companies, at its own expense, a
blanket Fidelity Bond and an errors and omissions insurance policy, with broad
coverage on all officers, employees, or other persons acting in any capacity
requiring such persons to handle funds, money, documents, or papers relating to
the Mortgage Loans ("Seller Employees"). Any such Fidelity Bond and errors and
omissions insurance shall be in the form of the Mortgage Banker's Blanket Bond
and shall protect and insure the Seller against losses, including forgery,
theft, embezzlement, fraud, errors and omissions, failure to maintain any
insurance policies required pursuant to this Agreement, and negligent acts of
such Seller Employees. Such Fidelity Bond shall also protect and insure the
Seller against losses in connection with the release or satisfaction of a
Mortgage Loan without having obtained payment in full of the indebtedness
secured thereby. No provision of this Section 4.13 requiring such Fidelity Bond
and errors and omissions insurance shall diminish or relieve the Seller from its
duties and obligations as set forth in this Agreement. The terms of any such
Fidelity Bond and errors and omissions insurance policy shall be at least equal
to the corresponding amounts required by Xxxxxx Xxx or by Xxxxxxx Mac. Upon the
request of the Purchaser, the Seller shall cause to be delivered to the
Purchaser a certified true copy of such Fidelity Bond and errors and omissions
insurance policy and a statement from the surety and the insurer that such
45
Fidelity Bond and errors and omissions insurance policy shall in no event be
terminated or materially modified without 30 days prior written notice to the
Purchaser.
Section 4.14 Title, Management and Disposition of REO Property
(a) In the event that title to the Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure, the deed or certificate of sale
shall be taken in the name of the Seller or its nominee, in either case as
nominee, for the benefit of the Purchaser of record on the date of acquisition
of title (the "Owner"). In the event the 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 of such
state by so holding title, the deed or certificate of sale shall be taken in the
name of such Person or Persons as shall be consistent with an Opinion of Counsel
obtained by the Seller, at the expense of the 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 the Owner shall acknowledge in
writing that such title is being held as nominee for the Owner.
(b) The Seller shall manage, conserve, protect and operate each REO
Property solely for the purpose of its prompt disposition and sale. The Seller
shall either itself or through an agent selected by the Seller, manage,
conserve, protect and operate the REO Property in accordance with Customary
Servicing Procedures and the Servicer Guide, and funds received in connection
therewith shall be administered in accordance with the Servicer Guide. The
Seller shall attempt to sell the same (and may temporarily rent the same) on
such terms and conditions as are consistent with the requirements of the
Servicer Guide.
(c) The disposition of REO Property shall be carried out by the Seller in
accordance with the provisions of this Agreement. The Seller shall be entitled
to an REO Servicing Fee of $1500 for each REO Property. The REO Servicing Fee
shall be deducted from the proceeds from the sale of the REO Property. The
Seller shall cause an appraisal of the REO Property to be performed immediately
after receiving possession of the property. The Seller will provide the
Purchaser a written marketing Plan prior to listing the property, which will
indicate delegated authorities to Seller with regard to list price, repair
budget, sales price, Seller paid closing costs and commissions. Any exception to
the stated disposition authorities in the marketing plan will require Purchaser
approval prior to REO liquidation. The Seller must use reasonable efforts to
sell each REO Property within 6 months of the time the Mortgaged Property
becomes REO Property and shall maintain necessary procedures and processes to
meet such requirement.
(d) The Seller shall also maintain on each REO Property fire and hazard
insurance with extended coverage, liability insurance and flood insurance in
accordance with the provisions of Section 4.10 hereof.
(e) For each Remittance Date as to which the Seller determines that any
Liquidated Mortgage Loan exists, the Seller will provide to the Purchaser a
Liquidation Report in the form attached as Exhibit H, including supporting
documentation for all expenses and advances relating to such Liquidated Mortgage
Loan.
46
(f) In connection with related Mortgage Loan, the Seller shall from its own
funds make all necessary and proper Servicing Advances for the proper operation,
management and maintenance of the REO Property, including the cost of
maintaining any hazard insurance pursuant to the Servicer Guide. Such Servicing
Advances will be reimbursed in accordance with the Servicer Guide upon
completion of the liquidation of the REO Property, Purchaser's receipt of the
Liquidation Proceeds, and Seller's filing of a claim for reimbursement.
Section 4.15 Application of Proceeds of Insurance to Repair or Restoration
The Seller shall collect the proceeds from all policies of insurance
required to be maintained pursuant to Section 4.10 with respect to all losses
that may occur. The Seller may remit such proceeds to the Mortgagor toward the
restoration or repair of the related property in a manner, and shall otherwise
take such actions in connection with such restoration and repair as shall be
consistent with Customary Servicing Procedures and the Servicer Guide.
Section 4.16 Inspections
The Seller shall conduct inspections of Mortgaged Properties at such times
and in a manner consistent with Customary Servicing Procedures and the Servicer
Guide.
[THE REMAINDER OF THIS PAGE WAS LEFT BLANK INTENTIONALLY.]
47
ARTICLE V
PAYMENTS TO THE PURCHASER
Section 5.1 Distributions
(a) On each Remittance Date the Seller shall remit to the Purchaser the
Available Distribution Amount. Each such remittance shall be made by wire or
other electronic funds transfer of immediately available funds to the account of
the Purchaser at a bank or other entity having appropriate facilities therefor.
(b) With respect to any remittance to the Purchaser made by the Seller
after the Business Day on which such remittance was due, the Seller shall pay to
the Purchaser interest on such late remittance at an annual rate equal to the
rate of interest as is publicly announced from time to time at its principal
office by Wachovia Bank, National Association, Charlotte, North Carolina, as its
prime lending rate, adjusted as of the date of each change, plus three
percentage points, but in no event greater than the maximum amount permitted by
applicable law. Such interest shall be deposited in the Collection Account by
the Seller on the date such late remittance is made and shall cover the period
commencing with the day following such Business Day on which such remittance was
due and ending with the Business Day on which such late remittance is made, both
inclusive. Such interest shall be remitted along with the remittance payable to
the Purchaser on the next succeeding Remittance Date. The payment by the Seller
of any such interest shall not be deemed an extension of time for payment or a
waiver of any Event of Default by the Seller.
Section 5.2 Statements to the Purchaser
(a) On or before the fifth Business Day of each month, the Seller shall
deliver to Purchaser (so that Purchaser receives by such date) a statement
setting forth information with respect to the Mortgage Loans in the form of
standard Fidelity MSP reports or other mutually agreeable format, Exhibit N,
(including an ARM Change Report (24N or similar) when applicable).
(b) Upon reasonable advance notice in writing, the Seller shall provide to
any Purchaser which is a savings and loan association, a bank, an insurance
company, or other regulated or supervised entity reports and access to
information and documentation regarding the Mortgage Loans and the transactions
contemplated hereby sufficient to permit the Purchaser to comply with the
applicable regulations of relevant regulatory or supervisory authorities with
respect to its investment in the Mortgage Loans; provided, however, such
Purchaser shall pay the Seller's costs of obtaining such reports, information
and documentation.
(c) The Company shall provide each Purchaser with such information as any
Purchaser may reasonably request from time to time concerning the Mortgage Loans
as is necessary for such Purchaser to prepare its federal income tax return and
any and all other tax returns, information statements or other filings required
48
to be delivered to any governmental taxing authority or to any Purchaser
pursuant to any applicable law with respect to the Mortgage Loans and the
transactions contemplated hereby. The Company shall file information reports
with respect to the receipt of mortgage interest received in a trade or
business, reports of foreclosures and abandonments of any Mortgaged Property and
information returns relating to cancellation of indebtedness income with respect
to any Mortgaged Property as required by Sections 6050H, 6050J and 6050P of the
Code. Such reports shall be in form and substance sufficient to meet the
reporting requirements imposed by such Sections 6050H, 6050J and 6050P of the
Code The Company shall or shall file all IRS forms 1099, 1099A, 1098 or 1041 and
K-1 which are required to be filed in relation to the servicing and ownership of
the related Mortgage Loans. The Company shall provide copies of such forms to
the Purchaser upon request and shall reimburse the Purchaser for any costs or
penalties incurred by the Purchaser due to the Company's failure to comply with
this paragraph.
(d) The Seller shall provide to the Purchaser such additional information
regarding the Mortgage Loans as the Purchaser shall reasonably request from time
to time at the purchaser's expense, provide the expenses are reasonable and
within industry standard.
Section 5.3 Monthly Advances
Not later than the close of business on the Business Day immediately
preceding each Remittance Date, the Seller shall, from its own funds, deposit in
the Collection Account an amount (a "Monthly Advance"), equal to the aggregate
of all Monthly Payments (with the interest portion of each such Monthly Payment
adjusted to the applicable Pass-Through Rate) which were due on the Mortgage
Loans during the related Due Period and which were delinquent at the close of
business on the Determination Date immediately preceding such Remittance Date or
as to which an Advance Monthly Payment had been received by the Seller and
remitted to the Purchaser by the Seller in lieu of an earlier Monthly Advance.
The Seller may elect in lieu of such Monthly Advance, to distribute Advance
Monthly Payments held by the Seller in the account in complete or partial
satisfaction of the deficiency. The Seller's obligation to make a Monthly
Advance with respect to any Mortgage Loan will continue through the earlier of
(i) the last Monthly Payment due prior to the payment in full of such Mortgage
Loan, or (ii) the last Remittance Date prior to the Remittance Date for the
distribution of all Liquidation Proceeds and other payments or recoveries
(including Insurance Proceeds or Condemnation Proceeds) with respect to such
Mortgage Loan.
[THE REMAINDER OF THIS PAGE WAS LEFT BLANK INTENTIONALLY.]
49
ARTICLE VI
GENERAL SERVICING PROCEDURES
Section 6.1 Assumption Agreements
(a) The Seller will use its best efforts to enforce any "due-on-sale"
provision contained in any Mortgage or Mortgage Note and to deny assumption by
the person to whom the Mortgaged Property has been or is about to be sold
whether by absolute conveyance or by contract of sale, and whether or not the
Mortgagor remains liable on the Mortgage and the Mortgage Note (except when the
Seller determines to forgo such enforcement in pursuing Loss Mitigation
Alternatives); provided, however, that in accordance with the terms of the
Mortgage Note, the Seller may permit an assumption if the Purchaser approves the
creditworthiness of the assuming borrower. When any Mortgaged Property has been
conveyed by the Mortgagor, the Seller will, to the extent it has knowledge of
such conveyance, exercise its rights to accelerate the maturity of such Mortgage
Loan under the "due-on-sale" clause applicable thereto; provided, however, the
Seller will not exercise such rights if prohibited by law or the terms of the
Mortgage or the Mortgage Note from doing so or if the exercise of such rights
would impair or threaten to impair any recovery under the related Mortgage
Insurance Policy, if any. If the Seller reasonably believes it is unable under
applicable law to enforce such "due-on-sale" clause, the Seller will request the
written permission of the Mortgage Insurer, if required to cause the coverage
under the Mortgage Insurance Policy to remain in full force and effect, and the
Purchaser prior to entering 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. Any assumption fee
collected by the Seller shall be treated in the manner prescribed by the
Servicer Guide. In connection with any such assumption, the related Mortgage
Interest Rate, the Unpaid Principal Balance, the Monthly Payment, and the term
of the Mortgage Loan may not be changed unless approved by the Mortgage Insurer,
if any, and the Purchaser. If an assumption is allowed pursuant to this Section
6.1(a), the Seller with the prior consent of the Purchaser and the Mortgage
Insurer, if any, is authorized to enter into a substitution of liability
agreement with the purchaser of the Mortgaged Property pursuant to which the
original Mortgagor is released from liability and the purchaser of the Mortgaged
Property is substituted as Mortgagor and becomes liable under the Mortgage Note.
Any such substitution of liability agreement shall be in lieu of an assumption
agreement.
(b) The Seller shall follow the requirements of the Servicer Guide with
respect to any such assumption or substitution of liability. The Seller shall
notify the Purchaser that any such substitution of liability or assumption
agreement has been completed by forwarding to the Purchaser the original of any
such substitution of liability or assumption agreement, which document shall be
added to the related Mortgage File and shall, for all purposes, be considered a
part of such Mortgage File to the same extent as all other documents and
instruments constituting a part thereof.
50
(c) For purposes of this Section 6.1, the term "assumption" is deemed to
also include a sale of the Mortgaged Property subject to the Mortgage that is
not accompanied by an assumption or substitution of liability agreement.
Section 6.2 Satisfaction of Mortgages and Release of Mortgage Files
(a) Upon the payment in full of any Mortgage Loan, or the receipt by the
Seller of a notification that payment in full will be escrowed in a manner
customary for such purposes, the Seller will obtain the portion of the Mortgage
File that is in the possession of the Purchaser, prepare and process any
required satisfaction or release of the Mortgage, notify the Purchaser of such
satisfaction or release, and include with such notice a certification to the
effect that all amounts received or to be received in connection with such
payment which are required to be deposited in the Collection Account pursuant to
Section 4.4 have been or will be so deposited. No expenses incurred in
connection with any instrument of satisfaction or deed of reconveyance shall be
chargeable to the Collection Account.
(b) The Seller shall not grant a satisfaction or release of a Mortgage
without having obtained payment in full of the indebtedness secured by the
Mortgage. In the event the Seller grants a satisfaction or release of a Mortgage
without having obtained payment in full of the indebtedness secured by the
Mortgage or should the Seller otherwise prejudice any right the Purchaser may
have under the Mortgage, the Seller, upon becoming aware of the foregoing, shall
remit to the Purchaser the Stated Principal Balance of the related Mortgage Loan
by deposit thereof in the Collection Account, whereupon the Purchaser shall
assign the related Mortgage and endorse the related Mortgage Note to the Seller
and shall do all things necessary to transfer ownership of the Mortgage Loan to
the Seller. The Seller shall maintain the Fidelity Bond as provided for in
Section 4.13 protecting and insuring the Seller against losses sustained with
respect to any Mortgage Loan satisfied or released other than in accordance with
the procedures set forth herein.
Section 6.3 Servicing Compensation
(a) As compensation for its services hereunder, the Seller shall be
entitled to pay itself its Servicing Fee from interest payments on each Mortgage
Loan and from such other sources as are authorized herein. Additional servicing
compensation in the form of assumption fees and late payment charges shall be
paid to the Seller (to the extent permitted by the Servicer Guide) by withdrawal
from the Collection Account pursuant to Section 4.5. The Seller shall be
entitled to retain all Ancillary Income, and upon liquidation of a Mortgage Loan
through an REO sale to a third party purchaser, be paid an REO Servicing Fee.
The Seller shall be required to pay all expenses incurred by it in connection
with its servicing activities hereunder and shall not be entitled to
reimbursement therefor except as specifically provided for in this Agreement.
(b) No transfer, sale, pledge or other disposition of the Seller's right to
receive all or any portion of the Servicing Fee shall be made, and any such
attempted transfer shall be absolutely void and of no force or effect unless:
(i) such transfer is made to a successor servicer in connection with the
assumption by such successor servicer of the duties of the Seller hereunder in
51
compliance with Section 7.5 hereof, and (ii) all (and not a portion) of the
Servicing Fee is transferred to such successor.
Section 6.4 Annual Statement as to Compliance
The Seller will deliver to the Purchaser, on or before March 15 of each
year beginning March 15, 2007, an Officers' Certificate in substantially the
form of Exhibit M stating that (i) the Seller has fully complied with the
provisions of this Agreement, (ii) a review of the activities of the Seller
during the preceding calendar year and of performance under this Agreement has
been made under such supervision of the officers signing such Officers'
Certificate, and (iii) to the best of such officers' knowledge, based on such
review, the Seller 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 officers and the
nature and status thereof and the action being taken by the Seller to cure such
default.
The Seller agrees to indemnify and hold harmless each of the Purchaser,
each other Person entitled to receive servicing reports provided pursuant to
Section 5.2, each Person, if any, who "controls" the Purchaser or such other
Person within the meaning of the Securities Act of 1933, as amended, and their
respective officers and directors against any and all losses, penalties, fines
forfeitures, reasonable and necessary legal fees actually incurred and related
costs, judgments and any other costs, fees and expenses that such Person may
sustain arising out of third party claims based on (i) the failure of the Seller
to deliver or cause to be delivered when required any Officer's Certificate
required hereunder, or any accountants' statement required hereunder, or (ii)
any material misstatement or omission in any certification pursuant to Section
302(a) of the Xxxxxxxx-Xxxxx Act of 2002 and Rules 13a-14 and 15d-15 promulgated
by the Securities and Exchange Commission thereunder made in reliance on any
material misstatement or omission contained in any Officer's Certificate
provided pursuant hereto.
Section 6.5 Annual Independent Public Accountants' Servicing Report
On or before March 15 of each year beginning March 15, 2007, the Seller at
its expense shall cause a firm of independent public accountants which is a
member of the American Institute of Certified Public Accountants to furnish a
statement to each Purchaser to the effect that such firm has examined certain
documents and records relating to the mortgage servicing operations of the
Seller and that such firm is of the opinion that on the basis of such
examination conducted substantially in compliance with the Uniform Single
Attestation Program for Mortgage Bankers, nothing has come to their attention
which would indicate that such servicing has not been conducted in compliance
therewith, except for (i) such exceptions as such firm shall believe to be
immaterial and (ii) such other exceptions as shall be set forth in such
statement.
52
Section 6.6 Delivery of Financial Information and Reports
The Seller will deliver to the Purchaser:
(i) Annual Statements--within 90 days after the end of each fiscal
year of the Seller, four copies of:
(A) a consolidated balance sheet of the Seller and its
consolidated subsidiaries, if any, as at the end of such year,
and
(B) consolidated statements of operations and retained earnings,
and cash flows of the Seller and its consolidated subsidiaries,
if any, for such year,
setting forth in each case in comparative form the figures for the previous
fiscal year and accompanied by an opinion of a firm of independent
certified public accountants of recognized national standing stating that
such financial statements present fairly the financial position, results of
operations and cash flows of the company or companies being reported upon
and have been prepared in accordance with generally accepted accounting
principles consistently applied (except for changes in application in which
such accountants concur);
(ii) Audit Report--promptly upon receipt thereof, one copy of each
other report submitted to the Seller by independent accountants in
connection with any annual, interim, or special audit made by them of the
books of the Seller if the information contained therein relates to any
matter which might materially and adversely affect the ability of the
Seller to perform its obligations under this Agreement;
(iii) SEC and Other Reports--promptly upon their becoming available,
one copy of each report, notice, or proxy statement sent by the Seller to
stockholders generally, and of each periodic report and any registration
statement, prospectus, or written communication (other than transmittal
letters) in respect thereof filed by the Seller with, or received by the
Seller in connection therewith from, any securities exchange or the
Securities and Exchange Commission or any successor thereto, in each case,
if the information contained therein relates to any matter which might
materially and adversely affect the ability of the Seller to perform its
obligations under this Agreement;
(iv) Notice of Default or Event of Default--immediately upon becoming
aware of the existence of any Default or Event of Default, a notice
describing its nature and the action the Seller is taking with respect
thereto;
(v) Notice of Claimed Default--immediately upon becoming aware that
the Purchaser has given notice or taken any other action with respect to a
claimed Default or Event of Default or that the holder of any debt or
security of the Seller has given notice or taken any other action with
respect to a claimed default or event of default in respect of such debt or
security, a notice specifying the notice given or action taken by such
53
holder or holder, the nature of the claimed Default or Event of Default or
the claimed default or event of default with respect to such debt or
security, and the action the Seller is taking with respect thereto;
(vi) Report on Proceedings--promptly upon the Seller's becoming aware
of (A) any proposed or pending investigation of it by any governmental
authority or agency, or (B) any court or administrative proceeding, which,
in either case, involves the possibility of materially and adversely
affecting the ability of the Seller to perform its obligations under this
Agreement, a notice specifying its nature and the action the Seller is
taking with respect thereto;
(vii) Notice of Change in Law, etc.--promptly upon the Seller having
learned of the enactment or promulgation of any federal, state, or local
law or regulation applicable to the Seller or the Seller's business that
may materially and adversely affect the ability of the Seller to perform
its obligations under this Agreement, a notice to such effect, identifying
such law or regulation and the manner in which such law or regulation may
have such effect; and
(viii) Notice of Regulatory Action--promptly upon receipt thereof, and
if not prohibited by law or government regulation, copies of any notices
received from any federal or state regulatory agencies relating to an
order, ruling, statute, or other law or information which might materially
and adversely affect the ability of the Seller to perform its obligations
under this Agreement; and
(ix) Requested Information--with reasonable promptness, any other data
and information which may be reasonably requested from time to time,
including, without limitation, information with respect to the Mortgage
Loans; provided, however, any Purchaser requesting such data and
information shall pay the Seller's costs of obtaining such data and
information if, and to the extent that, the same are not reasonably
obtainable by the Seller.
Section 6.7 Purchaser's Right to Examine Seller Records, etc.
The Purchaser shall have the right, at the Purchaser's expense except for
immaterial items in the ordinary course of business, to examine and audit the
Seller's books of account, records, reports and other papers relating to the
performance by the Seller of its obligations and duties under this Agreement, to
make copies and extracts therefrom, and to discuss the affairs, finances and
accounts of the Seller relating to such performance with its officers and
employees, all at such reasonable times and places and as often as may be
reasonably requested.
Section 6.8 No Solicitation Rights
From and after the related Closing Date, the Seller agrees that it will not
take any action or permit or cause any action to be taken by any of its agents
or affiliates, or by any independent contractors on the Seller's behalf, to
54
personally, by telephone or mail, solicit the borrower or obligor under any
Mortgage Loan for any purpose to refinance a Mortgage Loan, in whole or in part,
without the prior written consent of the Purchaser. It is understood and agreed
that all rights and benefits relating to the solicitation of any Mortgagors and
the attendant rights, title and interest in and to the list of such Mortgagors
and data relating to their Mortgages (including insurance renewal dates) shall
be transferred to the Purchaser pursuant hereto on the related Closing Date and
the Seller shall take no action to undermine these rights and benefits.
Notwithstanding the foregoing, it is understood and agreed that promotions
undertaken by the Seller or any affiliate of the Seller which are directed to
the general public at large, including, without limitation, mass mailing,
internet and e-mail solicitations, based in all instances, on commercially
acquired mailing lists and newspaper, radio and television advertisements shall
not constitute solicitation under this Section. This Section shall not be deemed
to preclude the Seller or any of its affiliates from soliciting any Mortgagor
for any financial product or service other than a first loan to be secured by
the Mortgaged Property.
[THE REMAINDER OF THIS PAGE WAS LEFT BLANK INTENTIONALLY.]
55
ARTICLE VII
THE SELLER
Section 7.1 Indemnification; Third Party Claims
The Seller agrees to indemnify and hold harmless the Purchaser against any
and all claims, losses, penalties, fines, forfeitures, reasonable and necessary
legal fees actually incurred and related costs, judgments and any other costs,
fees and expenses that the Purchaser may sustain in any way related to the
failure of the Seller to service the Mortgage Loans in compliance with the terms
of this Agreement. The Seller shall immediately notify the Purchaser if a claim
is made by a third party with respect to this Agreement or the Mortgage Loans,
and the Seller shall assume with notification to the Purchaser the defense of
any such claim and pay all reasonable expenses in connection therewith,
including reasonable and necessary counsel fees actually incurred, and promptly
pay, discharge and satisfy any judgment or decree which may be entered against
the Seller or the Purchaser in respect of such claim. The Seller shall follow
any written instructions received from the Purchaser in connection with any such
claim, and the Purchaser shall reimburse the Seller for all amounts advanced by
it pursuant to the preceding sentence except when the claim (i) arises out of
any matter in respect of which the Seller is obligated to indemnify the
Purchaser pursuant to Section 3.3(f), (ii) results from the failure of the
Seller to service the Mortgage Loans in compliance with the terms of this
Agreement, or (iii) results from the Seller's willful misfeasance, bad faith or
negligence in performing its duties under this Agreement.
Section 7.2 Merger or Consolidation of the Seller
(a) The Seller will keep in full force and effect its existence, rights and
franchises as a corporation, and its status as a Xxxxxx Mae or Xxxxxxx
Mac-approved seller/servicer in good standing and will obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement or any of the Mortgage Loans and to perform its
duties under this Agreement.
(b) Any Person into which the Seller may be merged or consolidated, or any
corporation resulting from any merger, conversion, or consolidation to which the
Seller shall be a party, or any Person succeeding to all or substantially all of
the business or assets of the Seller (whether or not related to loan servicing),
shall be the successor of the Seller hereunder, without the execution or filing
of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding; provided, however, the Seller
shall not, without the prior written notice to the Purchaser, be a party to any
such merger, consolidation, or conversion, or sell or otherwise dispose of all
or substantially all of its business or assets unless the successor or surviving
person shall be an institution that is a Xxxxxx Mae or Xxxxxxx Mac approved
56
seller/servicer in good standing and shall satisfy the requirements of Section
10.1(a) hereof.
Section 7.3 Limitation on Liability of the Seller and Others
Neither the Seller nor any of the directors, officers, employees, or agents
of the Seller shall be under any liability to the Purchaser for any action taken
or for refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, this provision shall
not protect the Seller or any such person against any breach of warranties or
representations made herein or failure to perform its obligations hereunder in
strict compliance with any standard of care set forth in this Agreement, or any
liability which would otherwise be imposed by reason of any breach of the terms
and conditions of this Agreement, or any liability which would otherwise be
imposed by reason of willful misfeasance, bad faith, or gross negligence in the
performance of duties. Unless in violation of Customary Servicing Procedures or
the Servicer Guide, the Seller and any officer, employee or agent of the Seller
may rely in good faith on any document of any kind prima facie properly executed
and submitted by any Person respecting any matters arising hereunder. Subject to
Section 7.1, the Seller shall be under no obligation to appear in, prosecute, or
defend any legal action which is not incidental to its duties under this
Agreement and which may involve it in any expense or liability; provided,
however, the Seller may with the consent of the Purchaser, undertake any such
action which it may deem necessary or desirable with respect to this Agreement
and the rights, duties and the interests of the parties hereto. In such event,
the legal expenses and costs of such action and any liability resulting
therefrom shall be expenses, costs and liabilities for which the Purchaser will
be liable and the Seller shall be entitled to be reimbursed therefor from the
Collection Account.
Section 7.4 Seller Resignation
Seller's resignation from the obligations and duties hereby imposed on it
hereunder shall not become effective until a successor which satisfies the
requirements set forth in Section 10.1 has assumed the Seller's responsibilities
and obligations hereunder in accordance with such Section.
Section 7.5 No Transfer of Servicing
The Seller acknowledges that the Purchaser has entered into this Agreement
with the Seller in reliance upon the adequacy of the Seller's servicing
facilities, plan, personnel, records, and procedures, its integrity, reputation,
and financial standing and the continuance thereof. The Seller shall not either
assign this Agreement or the servicing hereunder or, except in conformance with
Customary Servicing Procedures and the Servicer Guide, delegate its rights or
duties hereunder or any portion thereof, without the prior written approval of
the Purchaser, which approval shall not be unreasonably withheld. Any approval
by Purchaser of the assignment of this Agreement or the servicing hereunder may
be conditioned (at a minimum) on (1) payment by Seller to Purchaser of a
transfer fee of $2,500 plus $25 per Mortgage Loan, and (2) confirmation by
Purchaser that the proposed transferee is a Xxxxxx Xxx or Xxxxxxx Mac-approved
seller/servicer in good standing with a net worth of not less than $15,000,000.
57
Section 7.6 Assignment of Agreement; Master Servicing; Transfer of
Mortgage Loans.
(a) The Seller acknowledges that the Purchaser shall have the right, upon
15 days notice to the Seller and without the consent of Seller, to assign as few
as ten (10) or all of the Mortgage Loans (unless otherwise agreed to by the
Purchaser and the Seller)and all or a portion of the Purchaser's right and
obligations hereunder, and any such assignee shall, upon such assignment and the
delivery to the Seller of an executed Assignment, Assumption and Recognition
Agreement referred to below, be entitled to exercise any rights of the Purchaser
hereunder and shall accede to the rights and obligations of the Purchaser
hereunder with respect to such assigned Mortgage Loans and provided the Seller
has received an Assignment, Assumption and Recognition Agreement referred to
below, the Seller shall recognize such assignee as the Purchaser of such
Mortgage Loans, and will service such Mortgage Loans for the assignee as if the
assignee and the Seller had entered into a separate purchase agreement and
servicing agreement in the form of this Agreement. In the event of any such
assignment, for purposes of this Section 7.6, all references to the Purchaser
shall be deemed to be to the assignee of Wachovia Bank, National Association as
to the assigned Mortgage Loans. Upon the request of the Purchaser, the Seller
shall provide copies of any one or more of the Mortgage Files at the expense of
the requesting party. The Seller shall keep at its servicing office books and
records in which, subject to such reasonable regulations as it may prescribe,
the Seller shall note assignments and transfers of Mortgage Loans. Upon receipt
of an Assignment, Assumption and Recognition Agreement, substantially in the
form of Exhibit J hereto, the Seller shall (a) amend its books and records to
reflect the ownership of the assigned Mortgage Loans of such assignee, and the
previous Purchaser shall be released from its obligations hereunder with respect
to such assigned Mortgage Loans and (b) execute each such Assignment, Assumption
and Recognition Agreement in as many counterparts as are necessary to enable
each party to the Assignment, Assumption and Recognition Agreement to receive an
original of such Assignment, Assumption and Recognition Agreement.
(b) The Seller acknowledges that Purchaser may, without the consent of the
Seller, assume the role of master servicer hereunder (in such capacity, the
"Master Servicer"), notwithstanding the identity of the Purchaser or Purchasers,
in which case the Seller shall deal only with the Master Servicer (including any
sub-Master Servicer designated by Purchaser from time to time) as further
described in this Section 7.6(b). The Seller shall correspond and communicate
solely with the Master Servicer. The Seller shall service to, remit to, and
report to, the Master Servicer, all in accordance with the terms of this
Agreement. Furthermore, the Master Servicer shall have all rights to enforce the
representations and warranties, and all other covenants and conditions set forth
in this Agreement, and any successor sub-servicing agreement entered into by the
Seller pursuant to the terms of this Agreement, and the Seller shall follow the
instructions of the Master Servicer under this Agreement as if such instructions
were the instructions of the Purchaser, whether or not the Master Servicer shall
continue to be the owner of the Mortgage Loans. All amounts due the Purchaser
under this Agreement shall be remitted to the Master Servicer in accordance with
the Master Service's instructions. The initial sub-Master Servicer designated by
58
Purchaser is Universal Master Servicing, LLC ("UMS"), and the Seller may deal
with UMS as Master Servicer until otherwise instructed by the Purchaser.
(c) Without limiting the rights of the Purchaser under Sections 7.6(a) and
7.6(b), the Seller acknowledges that with respect to as few as five (5) or all
of the Mortgage Loans (unless otherwise agreed to by the Purchaser and the
Seller),, the Purchaser shall have the right, upon 15 days notice to the Seller,
to effect one or more Agency Transfers, Whole Loan Transfers or Pass-Through
Transfers. With respect to each such Agency Transfer, Whole Loan Transfer and
Pass-Through Transfer, as applicable, entered into by the Purchaser or any
Affiliate of the Purchaser, the Seller agrees:
(i) to cooperate fully with the Purchaser, any prospective purchaser,
any Rating Agency or any party to any agreement executed in connection with
such Agency Transfer, Whole Loan Transfer or Pass-Through Transfer with
respect to all reasonable requests and due diligence procedures and to use
its best efforts to facilitate such Agency Transfer, Whole Loan Transfer or
Pass-Through Transfer;
(ii) to execute as originator, servicer or sub-servicer as the case
may be, all applicable agreements executed in connection with such Agency
Transfer, Whole Loan Transfer or Pass-Through Transfer that govern the
servicing and administration of the Mortgage Loans (and any agreements and
other documents incidental thereto, including officer's certificates) as
the Purchaser shall reasonably request, which governing documents shall
contain provisions substantially similar to those set forth herein and
which governing documents shall contain provisions customarily included in
secondary mortgage market securitized transactions with respect to like
assets that provide for the public issuance or private placement of
securities that evidence an interest in the Mortgage Loans and that are
rated "AA/Aa" or higher by the Rating Agencies, or such other provisions as
are otherwise necessary to achieve the rating sought by the Purchaser on
the securities to be offered thereunder;
(iii) at the direction of the Purchaser and in lieu of executing
agreements as described in the preceding clause (ii), to consent to the
assignment of the Purchaser's rights as the Purchaser hereunder to a
purchaser of, or trustee or master servicer with respect to, any one or
more of the Mortgage Loans, in each case with any modifications to the
servicing provisions hereof as shall be reasonably requested by the
Purchaser and mutually agreed between the parties; provided, however, the
primary servicing responsibilities shall be substantially similar to those
set forth herein;
(iv) to restate as of the closing date for the Agency Transfer, Whole
Loan Transfer or Pass-Through Transfer each of the representations and
warranties contained in Section 3.1 of this Agreement as of the related
Purchase Date; provided, however, the Seller may qualify any such
representation or warranty contained in Section 3.1 to the extent set forth
below to reflect an event or circumstance that arose after the Closing Date
and that would cause such representation or warranty to be inaccurate in
any material respect (either because of the composition of the new pool of
59
mortgage loans or otherwise) if (A) the Seller establishes to the
reasonable satisfaction of the Purchaser that such event or occurrence is
not related to a breach by the Seller of any term or condition of this
Agreement, and (B) the form of such qualification is acceptable to the
Purchaser in its reasonable discretion, in which case the Seller shall
restate its original representation and warranty with respect to the facts
and circumstances as of the Purchase Date and shall make the qualified
Agency Transfer, Whole Loan Transfer or Pass-Through Transfer
representation or warranty with respect to the facts and circumstances
after the Purchase Date;
(v) to restate as of the closing date for the Agency Transfer, Whole
Loan Transfer or Pass-Through Transfer the representations and warranties
contained in Section 3.2 of this Agreement;
(vi) to deliver to the Purchaser or its Affiliate, at the expense of
the Purchaser, for inclusion in any prospectus, private placement
memorandum or other offering material or disclosure document such written
information regarding the Seller, its financial condition, delinquency,
foreclosure and loss experience as shall be reasonably requested by the
Purchaser or its Affiliate and to indemnify and hold harmless the Purchaser
and any Affiliate of the Purchaser for any and all liabilities, losses and
expenses arising under the Securities Act of 1933, as amended, in
connection with any material misstatement contained in such written
information or any omission of a material fact the inclusion of which was
necessary to make such written information not misleading;
(vii) to deliver to the Purchaser and to any Person designated by the
Purchaser, at the expense of the Purchaser, such statements and audit
letters of reputable certified public accountants pertaining to the written
information provided by the Seller referred to in clause (vi) above as
shall be requested by the Purchaser or its Affiliate;
(viii) to deliver to the Purchaser and to any Person designated by the
Purchaser, at the expense of the Purchaser, such Opinions of Counsel as are
customarily delivered by originators and/or servicers in connection with
Agency Transfer, Whole Loan Transfers or Pass-Through Transfers; and
(ix) to provide, on an ongoing basis from information obtained through
its servicing of the Mortgage Loans, any information necessary to enable
the "tax matters person" for any REMIC in a Pass-Through Transfer,
including any master servicer or trustee acting in such capacity, to
perform its obligations in accordance with applicable law and customary
secondary mortgage market standards for securitized transactions rated
"AA/Aa" or higher by the Rating Agencies.
[THE REMAINDER OF THIS PAGE WAS LEFT BLANK INTENTIONALLY.]
60
ARTICLE VIII
DEFAULT
Section 8.1 Events of Default
In case one or more of the following Events of Default by the Seller shall
occur and be continuing, that is to say:
(i) any failure by the Seller to remit to the Purchaser any payment
required to be made under the terms of this Agreement which continues
unremedied for a period of two days after the date upon which written
notice of such failure, requiring the same to be remedied, shall have been
given to the Seller by the Purchaser; or
(ii) failure by the Seller to duly observe or perform, in any material
respect, any other covenant, obligation, or agreement of the Seller as set
forth in this Agreement which failure continues unremedied for a period of
thirty days (except that such number of days shall be fifteen in the case
of failure to pay any premium for any insurance policy required to be
maintained under this Agreement) after the date on which written notice of
such failure, requiring the same to be remedied, shall have been given to
the Seller by the Purchaser; or
(iii) a decree or order of a court or agency or supervisory authority
having jurisdiction for the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshaling of assets
and liabilities, or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Seller and
such decree or order shall have remained in force, undischarged or unstayed
for a period of sixty days; or
(iv) the Seller shall consent to the appointment of a conservator,
receiver, or liquidator in any insolvency, readjustment of debt, marshaling
of assets and liabilities, or similar proceedings of or relating to the
Seller or relating to all or substantially all of the Seller's property; or
(v) the Seller shall admit in writing its inability to pay its debts
as they become due, file a petition to take advantage of any applicable
insolvency or reorganization statute, make an assignment for the benefit of
its creditors, or voluntarily suspend payment of its obligations;
(vi) the Seller ceases to be a FNMA or FHLMC approved seller/servicer
of conventional Mortgage Loans in good standing; or
(vii) failure by the Seller to maintain its license to do business or
service residential mortgage loans in any jurisdiction in which the
Mortgaged Properties are located, provided Seller is required to maintain
any such license;
61
then, and in each and every such case, so long as such Event of Default shall
not have been remedied, the Purchaser, by notice in writing to the Seller may,
in addition to whatever rights the Purchaser may have at law or equity to
damages, including injunctive relief and specific performance, commence
termination of all of the rights and obligations of the Seller under this
Agreement and may exercise any and all other remedies available at law or at
equity. Upon receipt by the Seller of such written notice from the Purchaser
stating the intent to terminate the Seller as servicer under this Agreement as a
result of such Event of Default, all authority and power of the Seller under
this Agreement, whether with respect to the Mortgage Loans or otherwise, shall
pass to and be vested in the successor appointed pursuant to Section 10.1. Upon
written request from the Purchaser, the Seller shall, at its sole expense,
prepare, execute and deliver to a successor any and all documents and other
instruments, place in such successor's possession all Mortgage Files, and do or
cause to be done all other acts or things necessary or appropriate to effect the
purposes of such notice of termination. The Seller agrees to cooperate with the
Purchaser and such successor in effecting the termination of the Seller's
responsibilities and rights hereunder, including, without limitation, the
transfer to such successor for administration by it of all cash amounts which
shall at the time be credited by the Seller to the Collection Account or the
Escrow Account, or thereafter be received with respect to the Mortgage Loans and
to which the Seller is not entitled pursuant to the terms of this Agreement.
Section 8.2 Waiver of Defaults
The Purchaser may waive any default by the Seller in the performance of its
obligations hereunder and their consequences. Upon any waiver of a past default,
such default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been remedied for every purpose of this Agreement. No
such waiver shall extend to any subsequent or other default or impair any right
consequent thereto except to the extent expressly so waived.
[THE REMAINDER OF THIS PAGE WAS LEFT BLANK INTENTIONALLY.]
62
ARTICLE IX
TERMINATION
Section 9.1 Termination of Agreement
This Agreement shall terminate upon either: (i) the later of the
distribution to the Purchaser of final payment or liquidation with respect to
the last Mortgage Loan and each REO Property (or Monthly Advances of same by the
Seller), or the disposition of all property acquired upon foreclosure or deed in
lieu of foreclosure with respect to the last Mortgage Loan and the remittance of
all funds due hereunder; or (ii) mutual consent of the Seller and the Purchaser
in writing.
Section 9.2 Termination of the Seller
(a) The Purchaser may, at its sole option, terminate any rights the Seller
may have hereunder, with or without cause, upon 30 days' written notice. Any
such notice of termination shall be in writing and delivered to the Seller by
registered mail as provided in Section 10.8 of this Agreement. If the Purchaser
so terminates the rights of the Seller without cause, the Purchaser shall pay
the Seller a termination fee equal to the fair market value of the rights of the
servicer under this Agreement at the time of termination, as mutually agreed
upon between the Seller and the Purchaser. If the Seller and the Purchaser are
unable to so agree within thirty days after receipt by the Seller of the
termination notice, such fair market value shall be determined within thirty
days thereafter by an investment banking firm of national standing with
principal offices in New York City as shall be selected by the Purchaser in its
sole discretion, which determination shall be final and binding upon the
Purchaser and the Seller. If the termination is without cause, the Purchaser
shall reimburse the Seller for all actual third-party costs incurred by the
Seller in transferring the servicing.
In the event the Seller is terminated pursuant to this Section, the
Purchaser hereby agrees to pay the Seller any accrued and outstanding servicing
fees owed to the Seller to the date of such termination and to cause the
successor servicer to agree to reimburse the Seller for any Servicing Advances
that the Seller actually made as servicer pursuant to this Agreement which the
successor recovers from the related Mortgagor.
Notwithstanding and in addition to the foregoing, in the event that (i) a
Mortgage Loan becomes delinquent for a period of 90 days or more (a "Delinquent
Mortgage Loan") or (ii) a Mortgage Loan becomes an REO Property, the Purchaser
may at its election terminate this Agreement with respect to such Delinquent
Mortgage Loan or REO Property without payment of a termination fee therefor,
upon 30 days' advance written notice to the Seller, provided, that upon
termination of the Agreement with respect to such Delinquent Mortgage Loan or
REO Property, the Purchaser shall reimburse the Seller for all outstanding
Servicing Advances or Servicing Fees. No transfer of servicing shall take place
within the 30 day period prior to the foreclosure sale. Transfer of servicing of
any REO account requires noticication from Purchaser to Servicer of at least 30
days prior to foreclosure sale date with the transfer occurring after
confirmation of sale.
63
(b) If the Seller is terminated with cause, the Purchaser shall arrange for
the transfer of servicing to another party, and the Seller shall continue
servicing, for the Servicing Fee provided herein, the Mortgage Loans under this
Agreement until the successor servicer shall commence servicing the Mortgage
Loans but in no instance less than 30 days from written notice of termination.
If the termination is with cause, the Seller will be responsible for all costs
and expenses incurred in transferring the servicing. No transfer of servicing
shall take place within the 30 day period prior to the foreclosure sale.
Transfer of servicing of any REO account requires noticication from Purchaser to
Servicer of at least 30 days prior to foreclosure sale date with the transfer
occurring after confirmation of sale.
[THE REMAINDER OF THIS PAGE WAS LEFT BLANK INTENTIONALLY.]
64
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.1 Successor to the Seller
(a) Prior to termination of the Seller's responsibilities and duties under
this Agreement pursuant to Sections 7.4, 8.1, 9.1, or 9.2, the Purchaser shall
(i) succeed to and assume all of the Seller's responsibilities, rights, duties
and obligations under this Agreement, or (ii) appoint a successor that shall
succeed to all rights and assume all of the responsibilities, duties and
liabilities of the Seller under this Agreement from and after the date of such
succession prior to the termination of the Seller's responsibilities, duties and
liabilities under this Agreement. In the event that the Seller's duties,
responsibilities and liabilities under this Agreement shall be terminated
pursuant to the aforementioned Sections, the Seller shall discharge such duties
and responsibilities during the period from the date it acquires knowledge of
such termination until the effective date thereof with the same degree of
diligence and prudence which it is obligated to exercise under this Agreement,
and shall take no action whatsoever that might impair or prejudice the rights or
financial condition of its successor. The resignation or removal of the Seller
pursuant to the aforementioned Sections shall not become effective until a
successor, whether the Purchaser or another successor, shall have been appointed
pursuant to this Section and shall in no event relieve the Seller of the
representations and warranties made by them pursuant to Sections 3.1 and 3.2 and
the remedies available to the Purchaser under Section 3.3 and 8.1, it being
understood and agreed that the provisions of such Sections 3.1, 3.2, 3.3 and 8.1
shall be applicable to the Seller, as the case may be, notwithstanding any such
resignation or termination of the Seller, or the termination of this Agreement.
(b) The Seller shall promptly deliver to the successor the funds in the
Collection Account and the Escrow Account to which the Purchaser is entitled
pursuant to the terms of this Agreement and all Mortgage Files and related
documents and statements held by it hereunder, and the Seller shall account for
all funds and shall execute and deliver such instruments and do such other
things as may reasonably be required to more fully and definitively vest in the
successor all such rights, powers, duties, responsibilities, obligations and
liabilities of the Seller.
(c) Upon a successor's acceptance of appointment as such, the Seller shall
notify by mail the Purchaser of such appointment.
Section 10.2 Amendment
This Agreement may be amended from time to time by the Seller and the
Purchaser by written agreement signed by the Seller and the Purchaser.
65
Section 10.3 Recordation of Agreement; Perfection of Security Interest;
Further Assurances
(a) To the extent necessary under applicable law to protect the interests
of the Purchaser, this Agreement is subject to recordation in all appropriate
public offices for real property records in all the counties or other comparable
jurisdictions in which any or all of the Mortgaged Properties are situated, and
in any other appropriate public recording office or elsewhere, such recordation
to be effected by the Seller at the Seller's expense upon direction of the
Purchaser.
(b) The Seller agrees to execute or cause to be executed such documents and
take or cause to be taken such actions as may be necessary to effect the intent
of this Agreement, including without limitation the execution and delivery of
instruments of further assurance and the execution and delivery of such other
documents, and the taking of such other actions as may be reasonably requested
by the Purchaser.
Section 10.4 Survival
All representations, warranties, covenants and agreements contained in this
Agreement shall remain in full force and effect and shall survive delivery of
the Mortgage Loans to Purchaser. The Seller agrees that the representations,
warranties, covenants and agreements made or deemed made by the Seller herein
and in any certificate, document or other instrument delivered pursuant hereto
or in connection herewith have been relied upon by Purchaser, notwithstanding
any investigation heretofore or hereafter made by Purchaser or on Purchaser's
behalf, without which representations, warranties, covenants and agreements
Purchaser would not have executed and delivered this Agreement, and that such
representations, warranties, covenants and agreements shall survive the delivery
and payment for the Mortgage Loans and shall continue in full force and effect
for Purchaser's benefit and the benefit of any subsequent holders of the
Mortgage Loans until the final distribution required to be made in respect of
the Mortgage Loans is made. For purposes hereof, all statements in any such
certificate, document, or other instrument shall constitute representations and
warranties enforceable under the terms of Section 3.3.
Section 10.5 Governing Law
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
Section 10.6 General Interpretive Principles
For purposes of this Agreement, except as otherwise expressly provided or
unless the context otherwise requires:
66
(i) the terms defined in this Agreement have the meanings assigned to
them in this Agreement and include the plural as well as the singular, and
the use of any gender herein shall be deemed to include the other gender;
(ii) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles;
(iii) references herein to "Articles," "Sections," "Subsections,"
"Paragraphs," and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other
subdivisions of this Agreement;
(iv) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section
in which the reference appears, and this rule shall also apply to
Paragraphs and other subdivisions;
(v) the words "herein," "hereof," "hereunder," and other words of
similar import refer to this Agreement as a whole and not to any particular
provision; and
(vi) the term "include" or "including" shall mean without limitation
by reason of enumeration.
Section 10.7 Reproduction of Documents
This Agreement and all documents relating hereto, including without
limitation (i) consents, waivers and modifications which may hereafter be
executed, (ii) documents received by any party at the closing, and (iii)
financial statements, certificates and other information previously or hereafter
furnished, may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic, or other similar process. The parties agree
that any such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding, whether or not the original
is in existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile, or further
reproduction of such reproduction shall likewise be admissible in evidence.
Section 10.8 Notices
All demands, notices, consents, waivers and other communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered at or mailed by registered mail, postage prepaid, or mailed overnight
delivery by a nationally recognized carrier to:
(i) in the case of the Purchaser:
Wachovia Bank, National Association
One Wachovia Center, DC8-FNDS
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxxxxx, Managing Director
67
With a copy to:
--------------
Universal Master Servicing, LLC
000 Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx, Vice President
or such other address as may hereafter be furnished to the Seller in
writing by the Purchaser, and
(ii) in the case of the Seller:
National City Mortgage
0000 Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
-----------------------------
Attention: Xx. Xxxx Xxxxx
or such other address as may hereafter be furnished to the Purchaser in
writing by the Seller.
Section 10.9 Severability of Provisions
If any one or more of the covenants, agreements, provisions, or terms of
this Agreement shall be held invalid for any reason whatsoever, then such
covenants, agreements, provisions, or terms shall be deemed severable from the
remaining covenants, agreements, provisions, or terms of this Agreement and
shall in no way affect the validity or enforceability of the other covenants,
agreements, provisions, or terms of this Agreement or the rights of the
Purchaser hereunder. If the invalidity of any part, provision, representation,
or warranty of this Agreement shall deprive any party of the economic benefit
intended to be conferred by this Agreement, the parties shall negotiate in good
faith to develop a structure the economic effect of which is nearly as possible
the same as the economic effect of this Agreement without regard to such
invalidity.
Section 10.10 Exhibits
The exhibits to this Agreement are hereby incorporated and made a part
hereof and are an integral part of this Agreement.
68
Section 10.11 Counterparts; Successors and Assigns
This Agreement may be executed in one or more counterparts and by the
different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together, shall
constitute one and the same agreement. Subject to Section 7.4, this Agreement
shall inure to the benefit of and be binding upon the Seller and the Purchaser
and their respective successors and assigns.
Section 10.12 Effect of Headings
The headings in this Agreement are for purposes of reference only and shall
not limit or otherwise affect the meaning hereof.
Section 10.13 Other Agreements Superseded
This Agreement supersedes all prior agreements and understandings relating
to the subject matter hereof; provided, however, that the parties acknowledge
that the Agreement (Compliance with Regulation AB) dated as of April 17, 2006,
supplements the terms of this Agreement.
Section 10.14 Venue
Any action at law, suit in equity, or other judicial proceeding for the
enforcement of any provision of this Agreement shall be instituted only in a
federal court sitting in the State of New York.
Section 10.15 Waiver of Trial by Jury
THE SELLER AND THE PURCHASER EACH KNOWINGLY VOLUNTARILY AND INTENTIONALLY
WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT.
[THE REMAINDER OF THIS PAGE WAS LEFT BLANK INTENTIONALLY.]
69
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their names to
be signed to this Master Purchase and Servicing Agreement by their respective
officers thereunto duly authorized as of the day and year first above written.
WACHOVIA BANK, NATIONAL ASSOCIATION
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
NATIONAL CITY MORTGAGE CO.
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
00
XXXXX XX XXXXX XXXXXXXX )
) ss. ________________
COUNTY OF _____________________ )
On the ____ day of _____________, 200_, before me, a Notary Public in and
for said State, personally appeared _______________________, known to me to be
__________________ of WACHOVIA BANK, NATIONAL ASSOCIATION, the corporation that
executed the within instrument and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that said
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand affixed my official seal
the day and year in this certificate first above written.
________________________________________
Notary Public
My Commission expires __________________
71
STATE OF OHIO )
) ss. __________
COUNTY OF XXXXXXXXXX )
On the ____ day of ____________, 200_, before me, a Notary Public in and
for said State, personally appeared ___________________________, known to me to
be ____________________ of National City Mortgage Co., and also known to me to
be the person who executed it on behalf of said corporation, and acknowledged to
me that said corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand affixed my official seal
the day and year in this certificate first above written.
________________________________________
Notary Public
My Commission expires __________________
72
EXHIBIT A
MORTGAGE LOAN SCHEDULE
EXHIBIT A-1
REQUIRED DATA FIELDS
Field Name Required Optional
LOAN_NUMBER X
SERVICER_LOAN_NUMBER X
LOAN_PRINCIPAL X
LOAN_PAYMENT_AMOUNT X
LOAN_NOTE_RATE X
PUR_CURRENT_SERVICE_FEE_RATE X
LOAN_DUE_DATE X
INTEREST_METHOD_CODE X
FIRST_PAYMENT_DATE X
MATURITY_DATE X
LOAN_PARTICIPANT_PERCENT X
ORIGINAL_TERM X
AMORTIZATION TERM X
CMR_LOAN_TERM X
PROPERTY_TYPE X
OWNER_OCCUPANCY_CODE X
PURPOSE_CODE X
LOAN_TYPE X
PROPERTY_STREET_NAME X
PROPERTY_CITY X
ZIP_CODE X
STATE_CODE X
COUNTY_CODE X
APPRAISED_VALUE X
APPRAISAL_DATE X
LIEN_TYPE X
NUMBER_OF_UNITS X
MI_COVERAGE_CODE X
MI_CARRIER_CUSTNO X
MI_CERTIFICATE_NUMBER X
MI_COVERAGE_AMOUNT X
ORIGINAL_LOAN_BALANCE X
ORIGINAL_RATE X
ORIGINAL_PAYMENT_AMOUNT X
ORIGINATION_DATE X
ORIGINAL_BORROWER_FIRST_NAME X
ORIGINAL_BORROWER_NAME X
ORIGINAL_COBORROWER_FIRST_NAME X
ORIGINAL_COBORROWER_NAME X
ORIGINAL_SALES_PRICE X
X (unless
required
RATE_BASE_INDEX_VALUE by ARM)
RATE_INDEX_CODE X
RATE_MARGIN X
2
RATE_NEXT_CHANGE X
RATE_LAST_CHANGE X
RATE_CHANGE_FREQUENCY X
RATE_MAX_INCREASE X
RATE_MAX_DECREASE X
RATE_LIFE_CAP X
RATE_LIFE_MINIMUM X
CURRENT INDEX VALUE X
RATE_ROUNDING_FACTOR X
RATE_ROUNDING_CODE X
RATE_MINIMUM_INDEX_CHANGE X
RATE_INDEX_DAYS_BEFORE_CHANGE X
PMT_NEXT_CHANGE X
PMT_LAST_CHANGE X
PMT_CHANGE_FREQUENCY X
PMT_INCREASE_MAXIMUM X
NEG AMORTIZATION CODE X
PMT_DECREASE_MAXIMUM X
PMT_MAX_LOAN_AMOUNT X
PMT_NEXT_FULL_ADJUSTMENT_DATE X
PMT_FULL_ADJUSTMENT_FREQUENCY X
PAYMENT FREQUENCY X
BORROWER_FIRST_NAME X
BORROWER_NAME X
BORROWER_SSN_NUMBER X
COBORROWER_FIRST_NAME X
COBORROWER_NAME X
COBORROWER_SSN_NUMBER X
FIRST_HOMEOWNER_CODE X
MORTGAGOR_DEPENDENT_COUNT X
MORTGAGOR_ETHNIC_CODE X
MORTGAGOR_GROSS_ANNUAL_INCOME X
EFFECTIVE_PURCHASE_CUTOFF_DATE X
PURCHASED BALANCE X
PURCHASED DUE DATE X
PURCHASED NEXT PMT CHANGE DATE X
PURCHASED NEXT RATE CHANGE DATE X
PURCHASED NOTE RATE X
SERVICER INVESTOR NUMBER X
SERVICER_CATEGORY X
COMMITMENT_NUMBER X
INVESTOR_LOAN_NUMBER X
RECOURSE_CODE X
ASSUMPTION_STATUS X
CENSUS_TRACT X
CONVERT_CODE X
DOCUMENTATION_TYPE_CODE X
LOAN_PREPAYMENT_PENALTY_CODE X
LOAN_PREPAY_PEN_EXP_DATE X
PROPERTY_USE_CODE X
3
BROKER_SELLER_CUSTNO X
SALE_CURRENT_SERVICE_FEE_RATE X
LOAN_DISCOUNT_BALANCE X
CMR_TEASE_PERIOD_END_DATE X
LOAN_PREMIUM_BALANCE X
PUR_NET_YIELD_MARGIN X
LOAN_DATE_TO_START_AMORT_PREM X
SERVICER NAME X
COLLATERAL ID X
MAS-TRADE-ID X
MAS-PRODUCT-TYPE X
MAS-ORIG-LTV X
MAS-DOCUMENT-TYPE X
MAS-SERIES-ID X
MAS-BUILDER-CODE X
MAS-HOURS-RATIO X
MAS-BOOK-BUSINESS X
MAS-RC-NUMBER X
MAS-CORRES-NUMBER X
MAS-LOAN-GRADE X
SALE_SOLD_PRINCIPAL X
BALLOON_DATE X
INTEREST_ONLY_FLAG X
PMT_CALCULATION_CODE X
PMT_FIRST_CHANGE X
RATE_FIRST_CHANGE X
RATE_FIRST_MAX_DECREASE X
RATE_FIRST_MAX_INCREASE X
SALE_MONTHLY_FEE X
LOAN_PARTICIPANT_PRINCIPAL X
LOAN_REMAINING_TERM X
BANKRUPTCY_STATUS X
FORECLOSURE_STATUS X
REO_PROPERTY_NUMBER X
FICO_SCORE_1 X
FICO_SCORE_2 X
FICO_SCORE_3 X
FICO_SCORE_4 X
MI_CERTIFICATE_HOLDER_CODE X
MI_MASTER_CERTIFICATE_NUMBER X
MI_MASTER_COVERAGE_AMOUNT X
MI_MASTER_POOL_FEE X
MI_MASTER_POOL_FEE_DUE_DATE X
MI_MASTER_POOL_FEE_FREQUENCY X
MI_MASTER_POOL_POLICY_NUMBER X
MI_MAST_CARRIER_CUSTNO X
ESCROW CODE X
SPECIAL HAZARD INS CODE X
INPUT_SOURCE_CODE X
TRANSACTION_CODE X
4
LIEN_NUMBER X
LIEN_STATUS X
LIEN_LOAN_TYPE X
LIEN_SERVICER_NAME X
LIEN_DATE X
LIEN_ORIGINAL_AMOUNT X
LIEN_CONTACT_NAME X
LIEN_CONTACT_TITLE X
LIEN_CONTACT_DEPT X
LIEN_CONTACT_PHONE X
LIEN_CONTACT_EXT X
LIEN_CONTACT_ADDR_LINE_1 X
LIEN_CONTACT_ADDR_LINE_2 X
LIEN_CONTACT_CITY X
LIEN_CONTACT_STATE X
LIEN_CONTACT_PRIMARY_ZIP X
LIEN_CONTACT_SUB_ZIP X
LIEN_CONTACT_FAX X
LIEN_CONTACT_EMAIL X
VARIABLE_RATE X
PLEDGE_AMOUNT X
MERS_LOAN_NUMBER X
5
EXHIBIT B
CONTENTS OF MORTGAGE FILE
With respect to each Mortgage Loan, the Mortgage File shall include each of
the following items, all of which shall be available for inspection by the
Purchaser (or a copy thereof if the original has been delivered to the
Purchaser):
(1) The original Mortgage Note, endorsed "Pay to the order of
______________________, without recourse," and signed in the name of the Seller
by an authorized officer, with all intervening endorsements showing a complete
chain of title from the originator of such Mortgage Loan to the Seller. In the
event that the Mortgage Loan was acquired by the Seller in a merger, the
endorsement must be by "__________________, successor by merger to [name of
predecessor]"; and in the event that the Mortgage Loan was acquired or
originated by the Seller while doing business under another name, the
endorsement must be by "____________________, formerly known as [previous
name]."
(2) The original Mortgage, with evidence of recording thereon, or a copy
thereof certified by the public recording office in which such Mortgage has been
recorded, or if the original Mortgage has been delivered for recording to the
appropriate public recording office of the jurisdiction in which the Mortgaged
Property is located but has not yet been returned to the Seller by such
recording office, a true copy of such original Mortgage so certified by the
Seller, together with a certificate of the Seller certifying that such original
Mortgage has been so delivered to such recording office.
(3) An original Assignment of Mortgage, from the Seller to
_________________ (or to MERS, as nominee for Wachovia Bank, National
Association, if so specified in the related Commitment Letter), which assignment
shall be in form and substance acceptable for recording; provided, however, that
if the related Mortgage has been recorded in the name of MERS, no Assignment of
Mortgage will be required to be prepared or delivered. In the event that the
Mortgage Loan was acquired by the Seller in a merger, the Assignment of Mortgage
must be by "_____________________, successor by merger to [name of
predecessor]"; and in the event that the Mortgage Loan was acquired or
originated by the Seller while doing business under another name, the Assignment
of Mortgage must be by " , formerly known as [previous name]."
(4) The original Mortgage Insurance Policy, if any, or certificate of
primary mortgage guaranty insurance, if any; or if the Seller customarily
maintains data regarding primary mortgage insurance in electronic form, the
Seller shall deliver electronic data regarding primary mortgage insurance
coverage, including the name or code of the primary Mortgage Insurer, the
certificate number and the percent of coverage to Purchaser within thirty days
after the Closing Date;
(5) The original policy of title insurance and all applicable endorsements
thereto (or copies thereof certified by the title insurer), provided that if any
such original policy of title insurance has not yet been received by the Seller,
the Seller may have delivered to the Purchaser a true, correct and complete copy
of such policy, a title insurance binder, or a commitment for the issuance of
such policy, and an insured closing agreement, if applicable.
(6) Originals of all intervening Assignments of Mortgage, with evidence of
recording thereon, showing a complete chain of title from the originator to the
Seller (or to MERS, if applicable), provided that if any such original
intervening Assignment of Mortgage has been delivered for recording to the
appropriate public recording office of the jurisdiction in which the Mortgaged
Property is located but has not yet been returned to the Seller by such
recording office, the Seller may have delivered to the Purchaser a true copy of
such original Assignment of Mortgage so certified by the Seller, together with a
certificate of the Seller certifying that such original Mortgage has been so
delivered to such recording office.
(7) Originals, or copies thereof certified by the public recording office
in which such documents have been recorded, if applicable, of all assumption and
modification agreements, if any.
(8) Copy of survey of the Mortgaged Property.
(9) Copy of each instrument necessary to complete identification of any
exception set forth in the exception schedule in the title policy, i.e., map or
plat, restrictions, easements, sewer agreements, home association declarations,
etc.
(10) Original hazard insurance policy and, if required by law, flood
insurance policy, with extended coverage of the hazard insurance policy.
(11) Mortgage Loan closing statement (Form HUD-1) and any other
truth-in-lending or real estate settlement procedure forms required by law.
(12) Residential loan application.
(13) Verification of employment and income if required pursuant to the
applicable underwriting standards.
(14) Verification of acceptable evidence of source and amount of down
payment.
(15) Credit report on the Mortgagor.
(16) Residential appraisal report.
(17) Photograph of the property.
(18) Executed disclosure statement.
2
(19) Tax receipts, insurance premium receipts, ledger sheets, payment
records, insurance claim files and correspondence, correspondence, current and
historical computerized data files, underwriting standards used for origination,
and all other papers and records developed or originated by the Seller or others
required to document the Mortgage Loan or to service the Mortgage Loan.
3
EXHIBIT C
COLLECTION ACCOUNT CERTIFICATION
_______________, 200_
_______________________ (the "Seller") hereby certifies that it has
established an account meeting the requirements of Section 4.4 of the Master
Purchase and Servicing Agreement dated as of ____________, 200_, between the
Seller and the Purchaser named therein.
Title of account: "__________________________, in trust for Wachovia Bank,
National Association and successor Holders from time to
time of Conventional Residential Adjustable-Rate [or
Fixed Rate] First Mortgage Loans"
Account Number: ____________________________________
Address of office or
branch of the Seller
at which Collection Account is
maintained: _____________________________________________________
_____________________________________________________
_____________________________________________________
________________________________________
By: ____________________________________
Name: __________________________________
Title: _________________________________
EXHIBIT D
COLLECTION ACCOUNT LETTER AGREEMENT
_______________, 200_
To: _____________________
_____________________
_____________________
(the "Depository")
As the "Seller" under the Master Purchase and Servicing Agreement dated as
of ____________, 200_, between the Seller and the Purchaser named therein (the
"Agreement"), we hereby authorize and request you to establish an account, as an
Collection Account pursuant to Section 4.4 of the Agreement, to be designated as
" , in trust for Wachovia Bank, National Association and successor Holders from
time to time of Conventional Residential Adjustable-Rate [or Fixed Rate] First
Mortgage Loans." All deposits in the account pursuant to the Agreement shall be
subject to withdrawal therefrom by order signed by the Seller. You may refuse
any deposit, which would result in violation of the requirement that the account
be fully insured as described below. This letter is submitted to you in
duplicate. Please execute and return one original to us.
[Seller] _____________________________
By:___________________________________
Name:_________________________________
Title:________________________________
The undersigned, as the "Depository," hereby certifies that the
above-described account has been established under Account Number
_________________, at the office of the Depository indicated above, and agrees
to honor withdrawals on such account as provided above. The full amount
deposited at any time in the account will be insured by the Federal Deposit
Insurance Corporation.
______________________________________
(Name of Depository)
By:___________________________________
Name:_________________________________
Title:________________________________
EXHIBIT E
ESCROW ACCOUNT CERTIFICATION
_______________, 200_
______________________ (the "Seller") hereby certifies that it has
established an account meeting the requirements of Section 4.6 of the Master
Purchase and Servicing Agreement dated as of ____________, 200_,. between the
Seller and the Purchaser named therein.
Title of account: "______________________, in trust for Wachovia Bank,
National Association and successor Holders from time
to time of Conventional Residential Adjustable-Rate
[or Fixed Rate] First Mortgage Loans, and various
Mortgagors"
Account Number: ___________________________________
Address of office or
branch of the Seller
at which Escrow Account
is maintained: ____________________________________
____________________________________
____________________________________
_______________________________________
By:____________________________________
Name:__________________________________
Title:_________________________________
EXHIBIT F
ESCROW ACCOUNT LETTER AGREEMENT
---------------, -----
To: _________________________
_________________________
_________________________
(the "Depository")
As the "Seller" under the Master Purchase and Servicing Agreement dated as
of ____________, 200_, between the Seller and the Purchaser named therein (the
"Agreement"), we hereby authorize and request you to establish an account, as an
Escrow Account pursuant to Section 4.6 of the Agreement, to be designated " , in
trust for Wachovia Bank, National Association and successor Holders from time to
time of Conventional Residential Adjustable-Rate [or Fixed Rate] First Mortgage
Loans, and various Mortgagors." All deposits in the account pursuant to the
Agreement shall be subject to withdrawal therefrom by order signed by the
Seller. You may refuse any deposit that would result in violation of the
requirement that the account be fully insured as described below. This letter is
submitted to you in duplicate. Please execute and return one original to us.
_______________________________________
By:____________________________________
Name:__________________________________
Title:_________________________________
The undersigned, as the "Depository," hereby certifies that the
above-described account has been established under Account Number
_________________, at the office of the Depository indicated above, and agrees
to honor withdrawals on such account as provided above. The full amount
deposited at any time in the account will be insured by the Federal Deposit
Insurance Corporation.
_______________________________________
(Name of Depository)
By:____________________________________
Name:__________________________________
Title:_________________________________
EXHIBIT G-1
[FORM OF OPINION OF COUNSEL TO THE SELLER]
[July 1, 2005]
Wachovia Bank, National Association
000 Xxxxx Xxxxxxx Xxxxxx, XX0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
You have requested my opinion, as Assistant General Counsel to National City
Mortgage Co. (the "Company"), with respect to certain matters in connection with
the sale by the Company of the Mortgage Loans pursuant to that certain Master
Purchase and Servicing Agreement by and between the Company and Wachovia Bank,
National Association (the "Purchaser"), for the purchase and sale of
___________________ loans, dated as of ____________________, 2005 (the
"Agreement"). Capitalized terms not otherwise defined herein have the meanings
set forth in the Agreement.
I have examined the following documents:
1. the Agreement,
2. such other documents, records and papers as I have deemed necessary and
relevant as a basis for this opinion.
To the extent I have deemed necessary and proper, I have relied upon the
representations and warranties of the Company contained in the Agreement. I have
assumed the authenticity of all documents submitted to me as originals, the
genuineness of all signatures, the legal capacity of natural persons and the
conformity to the originals of all documents. As to factual matters, I have
relied upon statements, certificates and other assurances of public officials
and/or of officers and other representatives of the Company, and upon such other
certificates as I deemed appropriate, which factual matters have not been
independently established or verified by me.
Based upon the foregoing, it is my opinion that:
1. The Company is a corporation duly organized, validly existing and in
good standing under the laws of the state of Ohio and is an operating
subsidiary of National City Bank of Indiana. As a national bank operating
subsidiary, it is regulated by the Office of the Comptroller of the
Currency and is subject to applicable laws and regulations.
2. The Company has the power to engage in the transactions contemplated by
the Agreement and all requisite power, authority and legal right to execute
and deliver the Agreement and to perform and observe the terms and
conditions of the Agreement.
3. The Agreement has been duly authorized, executed and delivered by the
Company, and are the legal, valid and binding agreements enforceable in
accordance with its terms against the Company, subject to the additional
assumptions, exceptions, qualifications and limitations set forth below.
4. The Company has been duly authorized to allow any of its officers to
execute any and all documents by original signature in order to complete
the transactions contemplated by the Agreement.
5. Either (i) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Company of or compliance by the Company with the
Agreement and the sale of the Mortgage Loans by the Company or the
consummation of the transactions contemplated by the Agreement or (ii) any
required consent, approval, authorization or order has been obtained by the
Company.
6. Neither the consummation of the transactions contemplated by, nor the
fulfillment of the terms of, the Agreement conflict or will conflict with
or results or will result in a breach of or constitute or will constitute a
default under the charter or by-laws of the Company or the material terms
of any indenture or other material agreement or material instrument to
which the Company is a party or by which it is bound or to which it is
subject, or violates any statute or order, rule, regulations, writ,
injunction or decree of any court, governmental authority or regulatory
body to which the Company is subject or by which it is bound.
7. There is no action, suit, proceeding or investigation pending or, to the
best of my knowledge, threatened against the Company which, in my judgment,
either in any one instance or in the aggregate, would draw into question
the validity of the Agreement or the Mortgage Loans or of any action taken
or to be taken in connection with the transactions contemplated thereby, or
which would be likely to impair materially the ability of the Company to
perform under the terms of the Agreement.
8. The sale of each Mortgage Note and Mortgage as and in the manner
contemplated by the Agreement is sufficient to fully transfer to the
Purchaser all right, title and interest of the Company thereto as
noteholder and mortgagee.
The opinions above are subject to the following additional assumptions,
exceptions, qualifications and limitations:
A. I have assumed that all parties to the Agreement other than the Company
have all requisite power and authority to execute, deliver and perform
their respective obligations under each of the Agreement, and that the
Agreement has been duly authorized by all necessary corporate action on the
part of such parties, have been executed and delivered by such parties and
constitute the legal, valid and binding obligations of such parties.
B. My opinion expressed in paragraphs 3 and 8 above is subject to the
qualifications that (i) the enforceability of the Agreement may be limited
by the effect of laws relating to (1) bankruptcy, reorganization,
insolvency, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally, including, without limitation, the
effect of statutory or ether laws regarding fraudulent conveyances or
preferential transfers, and (2) general principles of equity upon the
specific enforceability of any of the remedies, covenants or other
provisions of the Agreement and upon the availability of injunctive relief
or other equitable remedies and the application of principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) as such principles relate to, limit or affect the
enforcement of creditors' rights generally and the discretion of the court
before which any proceeding for such enforcement may be brought; and (ii) I
express no opinion herein with respect to the validity, legality, binding
effect or enforceability of provisions for indemnification in the Agreement
to the extent such provisions may be held to be unenforceable as contrary
to public policy.
C. I have assumed, without independent check or certification, that there
are no agreements or understandings among the Company, the Purchaser and
any other party which would expand, modify or otherwise affect the terms of
the documents described herein or the respective rights or obligations of
the parties thereunder.
I am admitted to practice in the State of Ohio and I render no opinion herein as
to matters involving the laws of any jurisdiction other than the State of Ohio
and the Federal laws of the United States of America.
This opinion is given to you for your sole benefit, and no other person or
entity is entitled to rely hereon.
Very truly yours,
Xxxxxx X. Xxxxx
Senior Vice President and
Assistant General Counsel
EXHIBIT G-2
SELLER'S OFFICER'S CERTIFICATE
I, ___________________________ hereby certify that I am the duly elected
____________________ of [SELLER], a ___________________ (the "Seller"), and
further certify, on behalf of the Seller as follows:
1. Attached hereto as Attachment I are a true and correct copy of the
[Certificate of Incorporation and by-laws] [Certificate of limited
partnership and limited partnership agreement] of the Seller as are in full
force and effect on the date hereof.
2. No proceedings looking toward liquidation, dissolution or
bankruptcy of the Seller are pending or contemplated.
3. Each person who, as an officer or attorney-in-fact of the Seller,
signed (a) the Master Purchase and Servicing Agreement (the "Purchase
Agreement"), dated as of _______________, by and between the Seller and
___________________ (the "Purchaser"); (b) the Commitment Letter, dated
____________ 20_, between the Seller and the Purchaser (the "Commitment
Letter"); and (c) any other document delivered prior hereto or on the date
hereof in connection with the sale and servicing of the Mortgage Loans in
accordance with the Purchase Agreement and the Commitment Letter was, at
the respective times of such signing and delivery, and is as of the date
hereof, duly elected or appointed, qualified and acting as such officer or
attorney-in-fact, and the signatures of such persons appearing on such
documents are their genuine signatures.
4. The sale of the Mortgage Loans pursuant to the Purchase Agreement
and the Commitment Letter is in the ordinary course of business of Seller
and is a duly authorized corporate action of the Seller.
5. Attached hereto as Attachment III is a Certificate of Good Standing
of the Seller dated ________, 20__ . No event has occurred since
____________, 20__, which has affected the good standing of the Seller
under the laws of the State of ____________.
6. All of the representations and warranties of the Seller contained
in Section 3.1 and 3.2 of the Purchase Agreement were true and correct in
all material respects as of the date of the Purchase Agreement and are true
and correct in all material respects as of the date hereof.
7. The Seller has performed all of its duties and has satisfied all
the material conditions on its part to be performed or satisfied prior to
the Closing Date pursuant to the Purchase Agreement and the related
Commitment Letter.
All capitalized terms used herein and not otherwise defined shall have the
meaning assigned to them in the Purchase Agreement.
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the seal of
the Seller.
Dated: __________________________
[Seal]
[SELLER]
By: ____________________________
Name: __________________________
Title: Vice President
I, __________________, Secretary of the Seller, hereby certify that
__________________ is the duly elected, qualified and acting Vice President of
the Seller and that the signature appearing above is his genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated: __________________________
[Seal]
[SELLER]
By:_____________________________
Name: __________________________
Title: [Assistant] Secretary
EXHIBIT H
FORM OF LIQUIDATION REPORT
EXHIBIT I
REPORT CODES-SUBSECTION 5.2(a)
EXHIBIT J
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
This Assignment, Assumption and Recognition Agreement, dated as of
________________, 200_ (this "Agreement"), is by and among Wachovia Bank,
National Association (the "Seller"), _______________________________ (the
"Owner") and _____________________ (the "Company").
In consideration of the mutual promises contained herein, the parties
hereto agree that the mortgage loans (the "Mortgage Loans") listed on Annex One
annexed hereto, which are now serviced by the Company for the Seller pursuant to
the Master Purchase and Servicing Agreement (the "Servicing Agreement"), dated
as , 200_ , between the Company and the Seller shall be subject to the terms of
this Agreement. Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Servicing Agreement.
1. The Company and the Seller warrant and represent that attached hereto as
Annex Two is a true, accurate and complete copy of the Servicing Agreement,
which is in full force and effect with respect to the Mortgage Loans as of the
date hereof and which has not been amended or modified in any respect nor has
any notice of termination been given thereunder.
2. The Seller hereby assigns to the Owner all of Seller's right, title and
interest as Purchaser, as defined in the Servicing Agreement, in and to the
Mortgage Loans and to the Servicing Agreement to the extent of the Mortgage
Loans, and the Owner hereby assumes all of the Seller's right, title, interest
and obligations with respect to the Mortgages and the Servicing Agreement to the
extent of the Mortgage Loans from and after the date hereof, and the Seller as
Purchaser, as defined in the Servicing Agreement shall be relieved and released
of all of its obligations under the Servicing Agreement to the extent of the
Mortgage Loans from and after the date hereof.
3. From and after the date hereof, the Company shall recognize the Owner as
the Purchaser (as defined in the Servicing Agreement) of the Mortgage Loans.
4. Notices and remittance reports with respect to the Mortgage Loans shall
be delivered by the Company in accordance with the Servicing Agreement, as
applicable, to the Owner at:
_____________________________________________
_____________________________________________
_____________________________________________
Attention:___________________________________
Facsimile No.:_______________________________
Remittances shall be made by the Company with respect to the Mortgage Loans
in accordance with the Servicing Agreement to the Owner at:
_____________________________________________
_____________________________________________
_____________________________________________
5. The Owner and the Company agree that the First Remittance Date on which
payment will be made to the owner with respect to the Mortgage Loans shall be
_________________, 200_.
6. The provisions of this Agreement shall be binding upon and inure to the
benefit of the respective successors and assigns of the parties hereto. This
Agreement shall be freely assignable by Owner, its successors and/or assigns.
[THE REMAINDER OF THIS PAGE WAS LEFT BLANK INTENTIONALLY.]
IN WITNESS WHEREOF, the Seller, the Owner and the Company have caused this
Agreement to be executed as of the day and year first above written.
______________________________________
By:___________________________________
Name:_________________________________
Title:________________________________
WACHOVIA BANK,
NATIONAL ASSOCIATION
By:___________________________________
Name:_________________________________
Title:________________________________
______________________________________
By:___________________________________
Name:_________________________________
Title:________________________________
EXHIBIT K
---------
SECURITY RELEASE CERTIFICATION
1. Release of Security Interest
----------------------------
____________________, hereby relinquishes any and all right, title and
interest it may have in and to the Mortgage Loans described in Exhibit A
attached hereto upon purchase thereof by [PURCHASER] from the Seller named below
pursuant to that certain Master Purchase and Servicing Agreement, dated as
of______________, 20__, as of the date and time of receipt by of $ for such
Mortgage Loans (the "Date and Time of Sale"), and certifies that all notes,
mortgages, assignments and other documents in its possession relating to such
Mortgage Loans have been delivered and released to the Company named below or
its designees as of the Date and Time of Sale.
Name and Address of Financial Institution
_________________________________________
(Name)
__________________________________________
(Address)
By:_______________________________________
2. Certification of Release
------------------------
The Seller named below hereby certifies to [PURCHASER] that, as of the Date
and Time of Sale of the above mentioned Mortgage Loans to [PURCHASER], the
security interests in the Mortgage Loans released by the above named corporation
comprise all security interests relating to or affecting any and all such
Mortgage Loans. The Seller warrants that, as of such time, there are and will be
no other security interests affecting any or all of such Mortgage Loans.
Seller:
_____________________________________________
By:__________________________________________
Name:________________________________________
Title:_______________________________________
EXHIBIT L
ASSIGNMENT AND CONVEYANCE
On this day of , 20___, ______________________. ("Seller") as the Seller
under that certain Master Purchase and Servicing Agreement, dated as of
________________ (the "Agreement") does hereby sell, transfer, assign, set over
and convey to ___________________________________________ as Purchaser under the
Agreement, without recourse, but subject to the terms of the Agreement, all
rights, title and interest of the Seller in and to the Mortgage Loans listed on
the Mortgage Loan Schedule attached hereto, together with the related Mortgage
Files and all rights and obligations arising under the documents contained
therein. Pursuant to Section 2.3 of the Agreement, the Seller has delivered to
the Purchaser or its designated Custodian the documents for each Mortgage Loan
to be purchased as set forth in the Agreement. The contents of each related
Servicing File required to be retained by the Seller to service the Mortgage
Loans pursuant to the Agreement and thus not delivered to the Purchaser are and
shall be held in trust by the Seller for the benefit of the Purchaser as the
owner thereof. The Seller's possession of any portion of each such Servicing
File is at the will of the Purchaser for the sole purpose of facilitating
servicing of the related Mortgage Loan pursuant to the Agreement, and such
retention and possession by the Seller shall be in a custodial capacity only.
The ownership of each Mortgage Note, Mortgage, and the contents of the Mortgage
File and Servicing File is vested in the Purchaser and the ownership of all
records and documents with respect to the related Mortgage Loan prepared by or
which come into the possession of the Seller shall immediately vest in the
Purchaser and shall be retained and maintained, in trust, by the Seller at the
will of the Purchaser in such custodial capacity only.
The Seller confirms to the Purchaser (1) that the representation and
warranties set forth in Sections 3.1 and 3.2 of the Agreement are true and
correct as of the date hereof, (2) that all statements made in the Seller's
Officer's Certificates and all Attachments thereto remain complete, true and
correct in all respects as of the date hereof, (3) that Seller has performed all
of its duties and has satisfied all the material conditions on its part to be
performed or satisfied prior to the Closing Date pursuant to the Purchase
Agreement and the related Commitment Letter, and (4) with respect to this
Mortgage Loan Package, the Seller makes the following additional representations
and warranties to the Purchaser, which additional representations and warranties
are hereby incorporated into Section 3.1 of the Agreement:
LOAN TYPE: [FIXED RATE][ADJUSTABLE RATE]
Number of Mortgage Loans: _________________________
Original Principal Balance: $________________________
Stated Principal Balance: $________________________
Weighted Average Mortgage Interest Rate: _____%
Weighted Average Servicing Fee Rate: _____%
Weighted Average Mortgage Loan
Remittance Rate: _____%
Weighted Average LTV: _____%
Weighted Average Remaining Months
to Maturity: _______ months
For Adjustable Rate Mortgage Loans:
Type: _______
Index: _______
Weighted Average Gross Margin: _______%
Weighted Average Months to
Next Adjustment Date: _______ months
First Remittance Date: _________________________
Capitalized terms used herein and not otherwise defined shall have the
meanings set forth in the Agreement.
_________________________________________
(Seller)
By:______________________________________
Name:____________________________________
Title:___________________________________
EXHIBIT M
FORM OF OFFICER'S CERTIFICATE
I, [name of certifying individual], a duly elected and acting officer of
[___________________] (the "Servicer"), certify pursuant to Section 6.4 of the
Master Purchase and Servicing Agreement dated as of [________], [20)___] (as
from time to time amended or replaced by a reconstituted servicing or other
successor servicing agreement, the "Servicing Agreement") between the Servicer
and Wachovia Bank, National Association (the "Owner") to the Owner and each
other Person entitled to receive servicing reports provided pursuant to the
Servicing Agreement (the "Servicing Report"), each Person, if any, who
"controls" the Owner or such other Person within the meaning of the Securities
Act of 1933, as amended, and their respective officers and directors, with
respect to the calendar year immediately preceding the date of this Certificate
(the "Relevant Year"), as follows:
1. For purposes of this Certificate, "Relevant Information" means the
information in the certificate provided pursuant to Section 6.4 of the Servicing
Agreement (the "Annual Compliance Certificate") for the Relevant Year and the
information in all Servicing Reports provided by the Servicer during the
Relevant Year. Based on my knowledge, the Relevant Information, taken as a
whole, does not contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein which is necessary to make the
statements made therein, in light of the circumstances under which such
statements were made, not misleading as of the last day of the Relevant Year.
2. The Relevant Information has been provided to those Persons entitled to
receive it.
3. I am responsible for reviewing the activities performed by the Servicer
under the Servicing Agreement during the Relevant Year. Based upon the review
required by the Servicing Agreement and except as disclosed in the Annual
Compliance Certificate or the accountants' statement provided pursuant to
Section 6.5, to the best of my knowledge, the Servicer has fulfilled its
obligations under the Servicing Agreement throughout the Relevant Year.
DATED as of _________, 200__.
EXHIBIT N
EXHIBIT N - Nat City Monthly Data Reports