FOURTH AMENDED AND RESTATED MORTGAGE LOAN SALE AND SERVICING AGREEMENT between GREENPOINT MORTGAGE FUNDING, INC., as Seller and as Servicer and MORGAN STANLEY MORTGAGE CAPITAL INC., as Purchaser Dated as of December 1, 2005 Conventional, Fixed and...
Exhibit
99.9c
EXECUTION
COPY
FOURTH
AMENDED AND RESTATED
between
GREENPOINT
MORTGAGE FUNDING, INC.,
as
Seller
and as Servicer
and
XXXXXX
XXXXXXX MORTGAGE CAPITAL INC.,
as
Purchaser
Dated
as
of December 1, 2005
Conventional,
Fixed
and
Adjustable Rate,
Residential
Mortgage Loans
TABLE
OF
CONTENTS
Page
SECTION
1.
|
DEFINITIONS
|
1
|
SECTION
2.
|
PURCHASE
AND CONVEYANCE
|
15
|
SECTION
3.
|
MORTGAGE
LOAN SCHEDULE
|
16
|
SECTION
4.
|
PURCHASE
PRICE
|
16
|
SECTION
5.
|
EXAMINATION
OF MORTGAGE FILES
|
16
|
SECTION
6.
|
DELIVERY
OF MORTGAGE LOAN DOCUMENTS
|
17
|
Subsection
6.01
|
Possession
of Mortgage Files
|
17
|
Subsection
6.02
|
Books
and Records
|
17
|
Subsection
6.03
|
Delivery
of Mortgage Loan Documents
|
17
|
Subsection
6.04
|
MERS
Designated Loans
|
18
|
SECTION
7.
|
REPRESENTATIONS,
WARRANTIES AND COVENANTS;
REMEDIES
FOR BREACH
|
19
|
Subsection
7.01
|
Representations
and Warranties Regarding Individual Mortgage Loans
|
19
|
Subsection
7.02
|
Seller
Representations
|
30
|
Subsection
7.03
|
Remedies
for Breach of Representations and Warranties
|
33
|
Subsection
7.04
|
Repurchase
of Mortgage Loans with Early Payment Defaults
|
35
|
Subsection
7.05
|
Premium
Recapture
|
35
|
SECTION
8.
|
CLOSING:
|
35
|
SECTION
9.
|
CLOSING
DOCUMENTS
|
36
|
SECTION
10.
|
COSTS
|
37
|
SECTION
11.
|
ADMINISTRATION
AND SERVICING OF THE MORTGAGE LOANS; COMPLIANCE WITH REGULATION
AB
|
37
|
Subsection
11.01
|
Servicer
to Act as Servicer; Intent of Parties; Reasonableness
|
37
|
Subsection
11.02
|
Liquidation
of Mortgage Loans
|
38
|
Subsection
11.03
|
Collection
of Mortgage Loan Payments
|
39
|
Subsection
11.04
|
Establishment
of Custodial Account; Deposits in Custodial Account
|
39
|
Subsection
11.05
|
Withdrawals
From the Custodial Account
|
40
|
Subsection
11.06
|
Establishment
of Escrow Account; Deposits in Escrow Account
|
41
|
Subsection
11.07
|
Withdrawals
From Escrow Account
|
42
|
-i-
Subsection
11.08
|
Payment
of Taxes, Insurance and Other Charges; Collections
Thereunder
|
42
|
Subsection
11.09
|
Transfer
of Accounts
|
44
|
Subsection
11.10
|
Maintenance
of Hazard Insurance
|
44
|
Subsection
11.11
|
Fidelity
Bond; Errors and Omissions Insurance
|
44
|
Subsection
11.12
|
Title,
Management and Disposition of REO Property
|
45
|
Subsection
11.13
|
Servicing
Compensation
|
46
|
Subsection
11.14
|
Distributions
|
46
|
Subsection
11.15
|
Statements
to the Purchaser
|
46
|
Subsection
11.16
|
Advances
by the Servicer
|
47
|
Subsection
11.17
|
Assumption
Agreements
|
48
|
Subsection
11.18
|
Satisfaction
of Mortgages and Release of Mortgage Files
|
48
|
Subsection
11.19
|
Information
to Be Provided by the Servicer in Compliance with
RegulationAB
|
48
|
Subsection
11.20
|
Annual
Statement as to Compliance; Report on Assessment of Compliance and
Attestation
|
49
|
Subsection
11.21
|
Annual
Independent Public Accountants’ Servicing Report
|
55
|
Subsection
11.22
|
Servicer
Shall Provide Access and Information as Reasonably
Required
|
55
|
Subsection
11.23
|
Transfer
of Servicing
|
55
|
Subsection
11.24
|
Use
of Subservicers and Subcontractors
|
57
|
SECTION
12.
|
THE
SERVICER
|
58
|
Subsection
12.01
|
Indemnification;
Third Party Claims; Remedies
|
58
|
Subsection
12.02
|
Merger
or Consolidation of the Servicer
|
61
|
Subsection
12.03
|
Limitation
on Liability of the Servicer and Others
|
62
|
Subsection
12.04
|
Seller
and Servicer Not to Resign
|
62
|
SECTION
13.
|
DEFAULT
|
63
|
Subsection
13.01
|
Events
of Default
|
63
|
Subsection
13.02
|
Waiver
of Defaults
|
64
|
SECTION
14.
|
TERMINATION
|
64
|
Subsection
14.01
|
Termination
|
64
|
Subsection
14.02
|
Termination
of the Servicer Without Cause
|
64
|
Subsection
14.03
|
Successors
to the Servicer
|
65
|
SECTION
15.
|
COOPERATION
OF SELLER WITH A RECONSTITUTION
|
65
|
-ii-
SECTION
16.
|
NOTICES
|
67
|
SECTION
17.
|
SEVERABILITY
CLAUSE
|
69
|
SECTION
18.
|
NO
PARTNERSHIP
|
69
|
SECTION
19.
|
COUNTERPARTS
|
69
|
SECTION
20.
|
GOVERNING
LAW JURISDICTION; CONSENT TO
|
|
SERVICE
OF PROCESS
|
69
|
|
SECTION
21.
|
MANDATORY
DELIVERY; GRANT OF SECURITY INTEREST
|
70
|
SECTION
22.
|
INTENTION
OF THE PARTIES
|
70
|
SECTION
23.
|
SUCCESSORS
AND ASSIGNS
|
70
|
SECTION
24.
|
WAIVERS
|
71
|
SECTION
25.
|
EXHIBITS
|
71
|
SECTION
26.
|
GENERAL
INTERPRETIVE PRINCIPLES
|
71
|
SECTION
27.
|
REPRODUCTION
OF DOCUMENTS
|
71
|
SECTION
28.
|
AMENDMENT
|
72
|
SECTION
29.
|
CONFIDENTIALITY
|
72
|
SECTION
30.
|
ENTIRE
AGREEMENT
|
72
|
SECTION
31.
|
FURTHER
AGREEMENTS
|
72
|
SECTION
32.
|
NO
SOLICITATION
|
72
|
SECTION
33.
|
WAIVER
OF JURY TRIAL
|
73
|
EXHIBITS
EXHIBIT
1 MORTGAGE
LOAN DOCUMENTS
EXHIBIT
2 CONTENTS
OF EACH MORTGAGE FILE
EXHIBIT
3 FORM
OF INDEMNIFICATION AND CONTRIBUTION AGREEMENT
EXHIBIT
4 FORM
OF CUSTODIAL ACCOUNT CERTIFICATION
EXHIBIT
5 FORM
OF CUSTODIAL ACCOUNT LETTER AGREEMENT
EXHIBIT
6 FORM
OF ESCROW ACCOUNT CERTIFICATION
EXHIBIT
7 FORM
OF ESCROW ACCOUNT LETTER AGREEMENT
EXHIBIT
8 SELLER’S
UNDERWRITING GUIDELINES
EXHIBIT
9 FORM
OF MONTHLY REMITTANCE REPORT
EXHIBIT
10 FORM
OF SELLER’S OFFICER’S CERTIFICATE
EXHIBIT
11 FORM
OF OPINION OF COUNSEL TO SELLER
EXHIBIT
12 FORM
OF SECURITY RELEASE CERTIFICATION
EXHIBIT
13 FORM
OF SECURITY RELEASE CERTIFICATION
-iii-
EXHIBIT
14 FORM
OF ASSIGNMENT AND CONVEYANCE AGREEMENT
EXHIBIT
15 FORM
OF ASSIGNMENT AND RECOGNITION AGREEMENT
EXHIBIT
16 FORM
OF ANNUAL CERTIFICATION
EXHIBIT
17 SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF
COMPLIANCE
-iv-
FOURTH
AMENDED AND RESTATED
THIS
FOURTH AMENDED AND RESTATED MORTGAGE LOAN SALE AND SERVICING AGREEMENT (the
“Agreement”),
dated as of December 1, 2005, is hereby executed by and between XXXXXX XXXXXXX
MORTGAGE CAPITAL INC., a New York corporation and its successors and assigns
(the “Purchaser”), and
GREENPOINT MORTGAGE FUNDING, INC., a New York corporation, in its capacity
as
seller (the “Seller”) and in
its
capacity as servicer (the “Servicer”).
W
I T N E S S E T
H:
WHEREAS,
the Purchaser and the Seller are parties to that certain Mortgage Loan Sale
and
Servicing Agreement, dated as of September 1, 2003 (the “Original Purchase
Agreement”), the Seller desires to sell, from time to time, to the
Purchaser, and the Purchaser desires to purchase from the Seller, certain
conventional fixed and adjustable rate residential first-lien mortgage loans
(the “Mortgage
Loans”) on a servicing-retained basis as described herein, which shall be
delivered in pools of whole loans (each, a “Mortgage Loan
Package”) on various dates as provided herein (each, a “Closing
Date”);
WHEREAS,
at the present time, Purchaser and Seller desire to amend and restate the
Original Purchase Agreement, as amended by that certain Amendment No. 1 to
Mortgage Loan Sale and Servicing Agreement, dated as of September 22, 2004,
as
amended and restated by that certain First Amended and Restated Mortgage Loan
Sale and Servicing Agreement, dated as of March 15, 2005, as further amended
and
restated by that certain Second Amended and Restated Mortgage Loan Sale and
Servicing Agreement, dated as of May 1, 2005., and as further amended and
restated by that certain Third Amended and Restated Mortgage Loan Sale and
Servicing Agreement, dated as of September 1, 2005 to make certain modifications
as set forth herein.
NOW,
THEREFORE, in consideration of the premises and mutual agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Purchaser, the Seller and
the
Servicer agree as follows:
Section
1. Definitions. For
purposes of this Agreement, the following capitalized terms shall have the
respective meanings set forth below.
Accepted
Servicing
Procedures: Procedures (including collection procedures) that
the Servicer customarily employs and exercises in servicing and administering
mortgage loans for its own account that are similar to the Mortgage Loans and
which are in accordance with accepted mortgage servicing practices of prudent
lending institutions.
Adjustable
Rate Mortgage
Loan: A Mortgage Loan purchased pursuant to this Agreement,
the Mortgage Interest Rate of which is adjusted from time to time in accordance
with the terms of the related Mortgage Note.
Agency
Transfer: A Xxxxxx Mae Transfer or a Xxxxxxx Mac
Transfer.
Agreement: This
Fourth Amended and Restated Mortgage Loan Sale and Servicing Agreement including
all exhibits, schedules, amendments and supplements hereto.
ALTA: The
American Land Title Association.
Appraised
Value: With respect to any Mortgaged Property, the lesser of
(i) the value thereof as determined by an appraisal made for the originator
of the Mortgage Loan at the time of origination of the Mortgage Loan by a
Qualified Appraiser and (ii) the purchase price paid for the related
Mortgaged Property by the Mortgagor with the proceeds of the Mortgage Loan;
provided, however, that
in the case of a Refinanced Mortgage Loan, such value of the Mortgaged Property
is based solely upon the value determined by an appraisal made for the
originator of such Refinanced Mortgage Loan at the time of origination of such
Refinanced Mortgage Loan by a Qualified Appraiser.
Assignment
of
Mortgage: An individual assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form and in blank, sufficient
under the laws of the jurisdiction in which the related Mortgaged Property
is
located to give record notice of the sale of the Mortgage to the
Purchaser.
Business
Day: Any day other than a Saturday or Sunday, or a day on
which banking and savings and loan institutions in the state in which
(i) the Servicer is located or (ii) the Custodial Account is
maintained, are authorized or obligated by law or executive order to be
closed.
Cash-Out
Refinance: A Refinanced Mortgage Loan in which the proceeds
received were in excess of the amount of funds required to repay the principal
balance of any existing first mortgage on the related Mortgaged Property, pay
related closing costs and satisfy any outstanding subordinate mortgages on
the
related Mortgaged Property and which provided incidental cash to the related
Mortgagor of more than 1% of the original principal balance of such Mortgage
Loan.
Closing
Date: The
date or dates on which the Purchaser from time to time shall purchase, and
the
Seller from time to time shall sell, the Mortgage Loans listed on the related
Mortgage Loan Schedule with respect to the related Mortgage Loan
Package.
CLTA: The
California Land Title Association.
Closing
Documents: The documents required to be delivered on each
Closing Date pursuant to Section
9.
Code: The
Internal Revenue Code of 1986, as amended, or any successor statute
thereto.
Commission: The
United States Securities and Exchange Commission.
-2-
Condemnation
Proceeds: All awards, compensation and settlements in respect
of a taking of all or part of a Mortgaged Property by exercise of the power
of
condemnation or the right of eminent domain, to the extent not required to
be
released to a Mortgagor in accordance with the terms of the related Mortgage
Loan Documents.
Co-op: A
private, cooperative housing corporation, having only one class of stock
outstanding, which owns or leases land and all or part of a building or
buildings, including apartments, spaces used for commercial purposes and common
areas therein and whose board of directors authorizes the sale of stock and
the
issuance of a Co-op Lease.
Co-op
Lease: With respect to a Co-op Loan, the lease with respect to
a dwelling unit occupied by the Mortgagor and relating to the stock allocated
to
the related dwelling unit.
Co-op
Loan: A Mortgage Loan secured by the pledge of stock allocated
to a dwelling unit in a residential cooperative housing corporation and a
collateral assignment of the related Co-op Lease.
Covered
Loan: A Mortgage Loan categorized as Covered pursuant to
Appendix E of Standard & Poor’s Glossary.
Custodial
Account: As defined in Subsection 11.04.
Custodial
Agreement: The agreement governing the retention of the
originals of each Mortgage Note, Mortgage, Assignment of Mortgage and other
Mortgage Loan Documents. If more than one Custodial Agreement is in
effect at any given time, all of the Individual Custodial Agreements shall
collectively be referred to as the “Custodial Agreement.”
Custodian: The
custodian under the Custodial Agreement, or its successor in interest or
assigns, or any successor to the Custodian under the Custodial Agreement as
provided therein.
Cut-off
Date: The
date or dates designated as such on the related Mortgage Loan Schedule with
respect to the related Mortgage Loan Package.
Cut-off
Date Principal
Balance: The aggregate Stated Principal Balance of the
Mortgage Loans as of the applicable Cut-off Date which is determined after
the
application, to the reduction of principal, of payments of principal due on
or
before such Cut-off Date, whether or not collected, and of partial principal
prepayments received before such Cut-off Date.
Deleted
Mortgage
Loan: A Mortgage Loan replaced or to be replaced with a
Qualified Substitute Mortgage Loan in accordance with this
Agreement.
Delinquent
Mortgage
Loan: As defined in Subsection 14.01(b).
Determination
Date: With respect to each Remittance Date, the 15th
day (or, if such
15th
day is not a
Business Day, the following Business Day) of the month in which such Remittance
Date occurs.
-3-
Due
Date: With respect to each Remittance Date, the first day of
the calendar month in which such Remittance Date occurs, which is the day on
which the Monthly Payment is due on a Mortgage Loan, exclusive of any days
of
grace.
Due
Period: With respect to each Remittance Date and any Mortgage
Loan, the period beginning on the second day of the month preceding such
Remittance Date through and including the first day of the month in which such
Remittance Date occurs.
Eligible
Investments: Any one or more of the following obligations or
securities:
(a) obligations
of or guaranteed as to principal and interest by Xxxxxxx Mac, Xxxxxx Xxx or
any
agency or instrumentality of the United States when such obligations are backed
by the full faith and credit of the United States; provided, however, that
such
obligations of Xxxxxxx Mac or Xxxxxx Xxx shall be limited to senior debt
obligations and mortgage participation certificates except that investments
in
mortgage-backed or mortgage participation securities with yields evidencing
extreme sensitivity to the rate of principal payments on the underlying
mortgages shall not constitute Eligible Investments hereunder;
(b) repurchase
agreements on obligations specified in clause (a) maturing not more than
one month from the date of acquisition thereof;
(c) federal
funds, certificates of deposit, demand deposits, time deposits and bankers’
acceptances (which shall each have an original maturity of not more than ninety
(90) days and, in the case of bankers’ acceptances, shall in no event have
an original maturity of more than 365 days or a remaining maturity of more
than
thirty (30) days) denominated in United States dollars of any United States
depository institution or trust company incorporated under the laws of the
United States or any state thereof or of any domestic branch of a foreign
depository institution or trust company;
(d) commercial
paper (having original maturities of not more than 365 days) of any
corporation incorporated under the laws of the United States or any state
thereof which is rated not lower than “P-2” by Xxxxx’x Investors Service, Inc.
and rated not lower than “A-2” by Standard & Poor’s; and
(e) a
money market fund; provided, however,
that no instrument
shall be an Eligible Investment if it represents, either (1) the right to
receive only interest payments with respect to the underlying debt instrument
or
(2) the right to receive both principal and interest payments derived from
obligations underlying such instrument and the principal and interest with
respect to such instrument provide a yield to maturity greater than 120% of
the
yield to maturity at par of such underlying obligations.
Escrow
Account: As defined in Subsection 11.06.
Escrow
Payments: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, mortgage insurance premiums, fire and hazard insurance
premiums, condominium charges, and any other payments required to be escrowed
by
the Mortgagor with the Mortgagee pursuant to the Mortgage or any other
document.
-4-
Event
of
Default: Any one of the conditions or circumstances enumerated
in Subsection 13.01.
Exchange
Act: The Securities Exchange Act of 1934, as
amended.
Xxxxxx
Xxx: The Federal National Mortgage Association or any
successor thereto.
Xxxxxx
Mae
Guides: The Xxxxxx Xxx Xxxxxxx’ Guide and the Xxxxxx Mae
Servicers’ Guide and all amendments or additions thereto.
Xxxxxx
Xxx
Transfer: As defined in Section 15.
FDIC: The
Federal Deposit Insurance Corporation, or any successor thereto.
Fidelity
Bond: The fidelity bond required to be obtained by the
Servicer pursuant to Subsection
11.11.
FIRREA: The
Financial Institutions Reform, Recovery, and Enforcement Act of 1989, as amended
and in effect from time to time.
Fixed
Rate Mortgage
Loan: A fixed rate mortgage loan purchased pursuant to this
Agreement.
Xxxxxxx
Mac: The Federal Home Loan Mortgage Corporation, or any
successor thereto.
Xxxxxxx
Mac
Transfer: As defined in Section 15.
Gross
Margin: With respect to each Adjustable Rate Mortgage Loan,
the fixed percentage amount set forth in the related Mortgage Note which amount
is added to the Index in accordance with the terms of the related Mortgage
Note
to determine on each Interest Rate Adjustment Date the Mortgage Interest Rate
for such Mortgage Loan.
High
Cost
Loan: A Mortgage Loan (a) covered by the Home Ownership and
Equity Protection Act of 1994, (b) classified as a “high cost home,”
“threshold,” “covered,” “high risk home,” “predatory” or similar loan under any
other applicable state, federal or local law (or a similarly classified loan
using different terminology under a law imposing heightened regulatory scrutiny
or additional legal liability for residential mortgage loans having high
interest rates, points and/or fees) or (c) a Mortgage Loan categorized as High
Cost pursuant to Appendix E of Standard & Poor’s Glossary. For
avoidance of doubt, the parties agree that this definition shall apply to any
law regardless of whether such law is presently, or in the future becomes,
the
subject of judicial review or litigation.
Home
Loan: A Mortgage Loan categorized as a Home Loan pursuant to
Appendix E of Standard & Poor’s Glossary.
-5-
HUD: The
United States Department of Housing and Urban Development, or any successor
thereto.
Index: The
index indicated in the related Mortgage Note for each Adjustable Rate Mortgage
Loan.
Insurance
Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged
Property.
Interest
Rate Adjustment
Date: With respect to each Adjustable Rate Mortgage Loan, the
date, specified in the related Mortgage Note and the related Mortgage Loan
Schedule, on which the Mortgage Interest Rate is adjusted.
Interim
Funder: With respect to each MERS Designated Mortgage Loan,
the Person named on the MERS System as the interim funder pursuant to the MERS
Procedures Manual.
Investor: With
respect to each MERS Designated Mortgage Loan, the Person named on the MERS
System as the investor pursuant to the MERS Procedures Manual.
Lifetime
Rate
Cap: The provision of each Mortgage Note related to an
Adjustable Rate Mortgage Loan which provides for an absolute maximum Mortgage
Interest Rate thereunder. The Mortgage Interest Rate during the term
of each Adjustable Rate Mortgage Loan shall not at any time exceed the Mortgage
Interest Rate at the time of origination of such Adjustable Rate Mortgage Loan
by more than the amount per annum set forth on the related Mortgage Loan
Schedule.
Liquidation
Proceeds: Amounts received in connection with the partial or
complete liquidation of a defaulted Mortgage Loan, whether through the sale
or
assignment of such 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-to-Value
Ratio:
With respect to any Mortgage Loan as of any date of determination, the ratio,
expressed as a percentage, the numerator of which is the outstanding principal
balance of such Mortgage Loan at origination and the denominator of which is
the
Appraised Value of the related Mortgaged Property.
LPMI
Fee: With
respect to each Mortgage Loan which has an LPMI Policy, the portion of the
Mortgage Interest Rate as set forth on the related Mortgage Loan Schedule (which
shall be payable solely from the interest portion of Monthly Payments, Insurance
Proceeds, Condemnation Proceeds or Liquidation Proceeds), which, during such
period prior to the required cancellation of the LPMI Policy, shall be used
to
pay the premium due on the related LPMI Policy.
LPMI
Loan: Any
Mortgage Loan with respect to which Servicer is responsible for paying the
premium due on the related LPMI Policy with the proceeds generated by the LPMI
Fee relating to such Mortgage Loan, as set forth on the related Mortgage Loan
Schedule.
-6-
LPMI
Policy: A policy of primary mortgage guaranty insurance issued
by an insurer acceptable under the Underwriting Guidelines and qualified to
do
business in the jurisdiction where the Mortgaged Property is located, pursuant
to which the related premium is to be paid by the Servicer of the related
Mortgage Loan from payments of interest made by the Mortgagor in an amount
as is
set forth in the related Mortgage Loan Schedule.
LTV: Loan-to-Value
Ratio.
Manufactured
Home: A
single family residential unit that is constructed in a factory in sections
in
accordance with the Federal Manufactured Home Construction and Safety Standards
adopted on July 15, 1976, by the Department of Housing and Urban Development
(“HUD Code”), as amended in 2000, which preempts state and local building
codes. Each unit is identified by the presence of a HUD
Plate/Compliance Certificate label. The sections are then transported
to the site and joined together and affixed to a pre-built permanent foundation
(which satisfies the manufacturer’s requirements and all state, county, and
local building codes and regulations). The manufactured home is built
on a non-removable, permanent frame chassis that supports the complete unit
of
walls, floors, and roof. The underneath part of the home may have
running gear (wheels, axles, and brakes) that enable it to be transported to
the
permanent site. The wheels and hitch are removed prior to anchoring
the unit to the permanent foundation. The manufactured home must be
classified as real estate and taxed accordingly. The permanent
foundation may be on land owned by the mortgager or may be on leased
land.
MERS: Mortgage
Electronic Registration Systems, Inc., a Delaware corporation, and its
successors in interest.
MERS
Designated Mortgage
Loan: Mortgage Loans for which (a) the Seller has
designated or will designate MERS as, and has taken or will take such action
as
is necessary to cause MERS to be, the mortgagee of record, as nominee for the
Seller, in accordance with MERS Procedures Manual and (b) the Seller has
designated or will designate the Purchaser as the Investor on the MERS
System.
MERS
Procedures
Manual: The MERS Procedures Manual, as it may be amended,
supplemented or otherwise modified from time to time.
MERS
Report: The report from the MERS System listing MERS
Designated Mortgage Loans and other information.
MERS
System: MERS mortgage electronic registry system, as more
particularly described in the MERS Procedures Manual.
Monthly
Payment: With respect to any Mortgage Loan, the scheduled
payment of principal and interest payable by a Mortgagor under the related
Mortgage Note on each Due Date.
Mortgage:
With
respect to a Mortgage Loan that is not a Co-op Loan, the mortgage, deed of
trust
or other instrument securing a Mortgage Note, which creates a first lien on
the
Mortgaged Property. With respect to a Co-op Loan, the Security
Agreement.
-7-
Mortgage
File: With respect to any Mortgage Loan, the items listed in
Exhibit 2
hereto and any additional documents required to be added to the Mortgage File
pursuant to this Agreement.
Mortgage
Interest
Rate: With respect to each Mortgage Loan, the annual rate at
which interest accrues on such Mortgage Loan from time to time in accordance
with the provisions of the related Mortgage Note.
Mortgage
Loan: Each mortgage loan sold, assigned and transferred
pursuant to this Agreement and identified on the applicable Mortgage Loan
Schedule, which Mortgage Loan includes, without limitation, the Mortgage File,
the Monthly Payments, Principal Prepayments, Liquidation Proceeds, Condemnation
Proceeds, Insurance Proceeds, REO Disposition Proceeds, and all other rights,
benefits, proceeds and obligations arising from or in connection with such
mortgage loan.
Mortgage
Loan
Documents: With respect to any Mortgage Loan, the documents
listed in Exhibit
1 hereto.
Mortgage
Loan
Package: Each pool of Mortgage Loans, which shall be purchased
by the Purchaser from the Seller from time to time on each Closing
Date.
Mortgage
Loan Remittance
Rate: With respect to each Mortgage Loan, the annual rate of
interest payable to the Purchaser, which shall be equal to the related Mortgage
Interest Rate minus the related Servicing Fee Rate.
Mortgage
Loan
Schedule: The schedule of Mortgage Loans setting forth the following
information with respect to each Mortgage Loan in the related Mortgage Loan
Package: (1) the Seller’s Mortgage Loan identifying number; (2) the
Mortgagor’s name; (3) the street address of the Mortgaged Property including the
city, state and zip code; (4) a code indicating whether the Mortgaged Property
is owner-occupied, investment property or a second home; (5) the number and
type
of residential units constituting the Mortgaged Property (e.g. single
family residence, a two- to four-family dwelling, condominium, planned unit
development or cooperative); (6) the original months to maturity or the
remaining months to maturity from the related 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
related Cut-off Date; (9) the date on which the first Monthly Payment was due
on
the Mortgage Loan and, if such date is not consistent with the Due Date
currently in effect, the Due Date; (10) the stated maturity date; (11) the
amount of the Monthly Payment as of the related Cut-off Date; (12) the last
payment date on which a payment was actually applied to the outstanding
principal balance; (13) the original principal amount of the Mortgage Loan;
(14)
the principal balance of the Mortgage Loan as of the close of business on the
related Cut-off Date, after deduction of payments of principal due and collected
on or before the related Cut-off Date; (15) with respect to Adjustable Rate
Mortgage Loans, the Interest Rate Adjustment Date; (16) with respect to
Adjustable Rate Mortgage Loans, the Gross Margin; (17) with respect to
Adjustable Rate Mortgage Loans, the Lifetime Rate Cap; (18) with respect to
Adjustable Rate Mortgage Loans, a code indicating the type of Index; (19) the
type of Mortgage Loan (i.e., Fixed Rate, Adjustable Rate); (20) a
code
-8-
indicating
the purpose of the loan (i.e., purchase, Rate/Term Refinance or Cash-Out
Refinance); (21) a code indicating the documentation style (i.e. no documents,
full, alternative, reduced, no income/no asset, stated income, no ration,
reduced or NIV); (22) the loan credit classification (as described in the
Underwriting Guidelines); (23) whether such Mortgage Loan provides for a
Prepayment Penalty; (24) the Prepayment Penalty period of such Mortgage Loan,
if
applicable; (25) a description of the Prepayment Penalty, if applicable; (26)
the Mortgage Interest Rate as of origination; (27) the credit risk score (FICO
score); (28) the date of origination; (29) with respect to Adjustable Rate
Mortgage Loans, the Mortgage Interest Rate adjustment period; (30) with respect
to Adjustable Rate Mortgage Loans, the Mortgage Interest Rate adjustment
percentage; (31) with respect to Adjustable Rate Mortgage Loans, the Mortgage
Interest Rate floor; (32) the Mortgage Interest Rate calculation method (i.e.,
30/360, simple interest, other); (33) with respect to Adjustable Rate Mortgage
Loans, the Periodic Rate Cap as of the first Interest Rate Adjustment Date;
(34)
a code indicating whether the Mortgage Loan by its original terms or any
modifications thereof provides for amortization beyond its scheduled maturity
date; (35) the original Monthly Payment due; (36) the Appraised Value; (37)
a
code indicating whether the Mortgage Loan is covered by a PMI Policy and, if
so,
identifying the PMI Policy provider; (38) a code indicating whether the Mortgage
Loan is covered by an LPMI Policy and, if so, identifying the LPMI Policy
provider; (39) in connection with a condominium unit, a code indicating whether
the condominium project where such unit is located is low-rise or high-rise;
(40) a code indicating whether the Mortgaged Property is a leasehold estate;
(41) the MERS Identification Number, if applicable; and (42) a field indicating
whether such Mortgage Loan is a Home Loan. With respect to the
Mortgage Loans in the aggregate, the related Mortgage Loan Schedule shall set
forth the following information, as of the related 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 average principal balance of the Mortgage Loans; (6) the applicable
Cut-off Date; and (7) the applicable Closing Date.
Mortgage
Note: The original executed note or other evidence of the
Mortgage Loan indebtedness of a Mortgagor, including any riders or addenda
thereto.
Mortgaged
Property:
With respect to a Mortgage Loan that is not a Co-op Loan, the Mortgagor’s real
property securing repayment of a related Mortgage Note, consisting of an
unsubordinated estate in fee simple or, with respect to real property located
in
jurisdictions in which the use of leasehold estates for residential properties
is a widely-accepted practice, a leasehold estate, in a single parcel or
multiple parcels of real property improved by a Residential Dwelling. With
respect to a Co-op Loan, the stock allocated to a dwelling unit in the
residential cooperative housing corporation that was pledged to secure such
Co-op Loan and the related Co-op Lease.
Mortgagee: The
mortgagee or beneficiary named in the Mortgage and the successors and assigns
of
such mortgagee or beneficiary.
Mortgagor: The
obligor on a Mortgage Note, who is an owner of the Mortgaged Property and the
grantor or mortgagor named in the Mortgage and such grantor’s or mortgagor’s
successors in title to the Mortgaged Property.
-9-
NAIC: The
National Association of Insurance Commissioners or any successor
thereto.
OCC: Office
of the Comptroller of the Currency, or any successor thereto.
Officer’s
Certificate: A certificate signed by the Chairman of the
Board, the Vice Chairman of the Board, a President or a Vice President and
by
the Treasurer, the Secretary, or one of the Assistant Treasurers or the
Assistant Secretaries of the Person on behalf of whom such certificate is being
delivered.
Opinion
of
Counsel: A written opinion of counsel, who may be an employee
of the Seller or the Servicer, reasonably acceptable to the
Purchaser.
OTS: The
Office of Thrift Supervision or any successor thereto.
Owner: As
defined in Subsection 11.12.
P&I
Advance: As defined in Subsection 11.16.
Periodic
Rate
Cap: With respect to each Adjustable Rate Mortgage Loan, the
provision of each Mortgage Note which provides for an absolute maximum amount
by
which the Mortgage Interest Rate therein may increase or decrease on an Interest
Rate Adjustment Date above or below the Mortgage Interest Rate previously in
effect.
Periodic
Rate
Floor: With respect to each Adjustable Rate Mortgage Loan, the
provision of each Mortgage Note which provides for an absolute maximum amount
by
which the Mortgage Interest Rate therein may decrease on an Interest Rate
Adjustment Date below the Mortgage Interest Rate previously in
effect.
Person: An
individual, corporation, partnership, joint venture, association, joint-stock
company, limited liability company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
PMI
Policy: A policy of primary mortgage guaranty insurance issued
by an insurer acceptable under the Underwriting Guidelines and qualified to
do
business in the jurisdiction where the Mortgaged Property is
located.
Premium
Percentage: With respect to any Mortgage Loan, a percentage
equal to the excess of the Purchase Price Percentage over 100%.
Prepayment
Penalty: With respect to each Mortgage Loan, the penalty if
the Mortgagor prepays such Mortgage Loan as provided in the related Mortgage
Note or Mortgage.
Prime
Rate: The prime rate announced to be in effect from time to
time, as published as the average rate in The Wall Street
Journal
(Northeast edition).
Principal
Prepayment: Any payment or other recovery of principal on a
Mortgage Loan which is received in advance of its scheduled Due Date, including
any prepayment penalty
-10-
or
premium thereon, which is not accompanied by an amount of interest representing
scheduled interest due on any date or dates in any month or months subsequent
to
the month of prepayment.
Purchase
Price: The price paid on the related Closing Date by the
Purchaser to the Seller pursuant to this Agreement in exchange for the Mortgage
Loans purchased on such Closing Date, which shall be the percentage of par
(expressed as a decimal) set forth in the applicable Purchase Price and Terms
Letter times the applicable Cut-off Date Principal Balance.
Purchase
Price
Percentage: The percentage of par (expressed as decimal) set
forth in the related Purchase Price and Terms Letter.
Purchase
Price Terms and
Terms Letter: Those certain agreements setting forth the
general terms and conditions of the transactions consummated herein and
identifying the Mortgage Loans to be purchased from time to time hereunder
and
thereunder, between the Seller and the Purchaser.
Purchaser: Xxxxxx
Xxxxxxx Mortgage Capital Inc., a New York corporation, and its successors in
interest and assigns, or any successor to the Purchaser under this Agreement
as
herein provided.
Qualified
Appraiser:
An appraiser, duly appointed by the Seller, who had no interest, direct or
indirect in the Mortgaged Property or in any loan made on the security thereof,
and whose compensation was not affected by the approval or disapproval of the
Mortgage Loan, and such appraiser and the appraisal made by such appraiser
both
satisfied the requirements of Title XI of FIRREA and the regulations promulgated
thereunder, all as in effect on the date the Mortgage Loan was
originated.
Qualified
Correspondent: Any Person from which the Seller purchased
Mortgage Loans, provided that the following conditions are satisfied: (i) such
Mortgage Loans were originated pursuant to an agreement between the Seller
and
such Person that contemplated that such Person would underwrite mortgage loans
from time to time, for sale to the Seller, in accordance with underwriting
guidelines designated by the Seller (“Designated Guidelines”) or guidelines that
do not vary materially from such Designated Guidelines; (ii) such Mortgage
Loans
were in fact underwritten as described in clause (i) above and were acquired
by
the Seller within 180 days after origination; (iii) either (x) the Designated
Guidelines were, at the time such Mortgage Loans were originated, used by the
Seller in origination of mortgage loans of the same type as the Mortgage Loans
for the Seller’s own account or (y) the Designated Guidelines were, at the time
such Mortgage Loans were underwritten, designated by the Seller on a consistent
basis for use by lenders in originating mortgage loans to be purchased by the
Seller; and (iv) the Seller employed, at the time such Mortgage Loans were
acquired by the Seller, pre-purchased or post-purchased quality assurance
procedures (which may involve, among other things, review of a sample of
mortgage loans purchased during a particular time period or through particular
channels) designed to ensure that Persons from which it purchased mortgage
loans
properly applied the underwriting criteria designated by the
Seller.
Qualified
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,
be
-11-
approved
by the Purchaser and (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 Stated Principal Balance
of
the Deleted Mortgage Loan (the amount of any shortfall will be deposited in
the
Custodial Account by the Seller in the month of substitution); (ii) have a
Mortgage Interest Rate not less than and not more than one percent (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 (1) year
less
than that of the Deleted Mortgage Loan (iv) be of the same type as the Deleted
Mortgage Loan (i.e., fixed rate or adjustable rate with same Mortgage Interest
Rate Cap and Index); (v) comply as of the date of substitution with each
representation and warranty set forth in Subsection 7.01
of this Agreement; (vi) be current in the payment of principal and
interest; (vii) be secured by a Mortgaged Property of the same type and
occupancy status as secured the Deleted Mortgage Loan; and (viii) have
payment terms that do not vary in any material respect from those of the Deleted
Mortgage Loan.
Rate/Term
Refinance: A Refinanced Mortgage Loan, in which the proceeds
received were not in excess of the amount of funds required to repay the
principal balance of any existing first mortgage loan on the related Mortgaged
Property, pay related closing costs and satisfy any outstanding subordinate
mortgages on the related Mortgaged Property and did not provide incidental
cash
to the related Mortgagor of more than one percent (1%) of the original principal
balance of such Mortgage Loan.
Reconstitution: Any
Securitization Transaction or Whole Loan Transfer.
Reconstitution
Agreement: As defined in Section 15.
Record
Date: The close of business of the last Business Day of the
month preceding the month of the related Remittance Date.
Refinanced
Mortgage
Loan: A Mortgage Loan the proceeds of which were not used to
purchase the related Mortgaged Property.
Regulation
AB: Subpart 229.1100 – Asset Backed Securities (Regulation
AB), 17 C.F.R. §§229.1100-229.1123, as may be amended from time to time, and
subject to such clarification and interpretation as have been provided by the
Commission in the adopting release (Asset-Backed Securities, Securities Act
Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005) or by the staff
of
the Commission, or as may be provided by the Commission or its staff from time
to time.
Remittance
Date: No later than 1:00 p.m. New York time on the 18th day of
any month (or, if such 18th day is not a Business Day, the following Business
Day).
REO
Disposition: The final sale by the Servicer of an REO
Property.
REO
Disposition
Proceeds: All amounts received with respect to an REO
Disposition pursuant to Subsection
11.12.
-12-
REO
Property: A Mortgaged Property acquired by the Servicer
through foreclosure or deed in lieu of foreclosure, as described in Subsection 11.12.
Repurchase
Price: With respect to any Mortgage Loan for which a breach of
a representation or warranty from the Agreement or the Interim Servicing
Agreement is found, a price equal to the then outstanding principal balance
of
the Mortgage Loan to be repurchased, plus accrued interest thereon at the
Mortgage Interest Rate from the date to which interest had last been paid
through the date of such repurchase, plus the amount of any outstanding advances
owed to any servicer, and plus all costs and expenses incurred by the Purchaser
or any servicer arising out of or based upon such breach, including without
limitation costs and expenses incurred in the enforcement of the Seller's
repurchase obligation hereunder, and plus, in the event a Mortgage Loan is
repurchased during the first twelve months following the related Closing Date,
an amount equal to the Premium Percentage multiplied by the outstanding
principal balance of such Mortgage Loan as of the date of such
repurchase.
Residential
Dwelling: Any one of the following: (i) a
detached one-family dwelling, (ii) a detached two- to four-family dwelling,
(iii) a one-family dwelling unit in a condominium project, or (iv) a
one-family dwelling in a planned unit development, none of which is a
co-operative, mobile or Manufactured Home.
Securities
Act: The federal Securities Act of 1933, as
amended.
Securitization
Transaction: Any transaction involving either (i) a sale or
transfer of some or all of the Mortgage Loans directly or indirectly to an
issuing entity in connection with the issuance of publicly offered or privately
placed, rated or unrated mortgage -backed securities or (ii) an issuance of
publicly offered or privately placed, rated or unrated securities, the payments
on which are determined primarily by reference to one or more portfolios of
residential mortgage loans consisting, in whole or in part, of some or all
of
the Mortgage Loans.
Security
Agreement: The agreement creating a security interest in the
stock allocated to a dwelling unit in the residential cooperative housing
corporation that was pledged to secure such Co-op Loan and the related Co-op
Lease.
Seller: As
defined in the initial paragraph of this Agreement, together with its successors
in interest.
Servicer: As
defined in the initial paragraph of this Agreement, together with its successors
and assigns as permitted under the terms of this Agreement.
Servicing
Advances: All customary, reasonable and necessary
out-of-pocket costs and expenses incurred in the performance by the Servicer
of
its servicing obligations, 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 Mortgaged Property if the
Mortgaged Property is acquired in satisfaction of the Mortgage, and
(iv) payments made by the Servicer with respect to a Mortgaged Property
pursuant to Subsection 11.08.
-13-
Servicing
Criteria: The “servicing criteria” set forth in Item 1122(d)
of Regulation AB, as may be amended from time to time.
Servicing
Fee: With respect to each Mortgage Loan, the amount of the
annual fee the Purchaser shall pay to the Servicer, which shall, for each month,
be equal to one-twelfth of (i) the product of the Servicing Fee Rate and
(ii) the unpaid principal balance of such Mortgage Loan. Such
fee shall be payable monthly, computed on the basis of the same principal amount
and period respecting which any related interest payment on a Mortgage Loan
is
computed, and shall be pro rated (based upon the number of days of the related
month the Servicer so acted as Servicer relative to the number of days in that
month) for each part thereof. The obligation of the Purchaser to pay
the Servicing Fee is limited to, and payable solely from, the interest portion
(including recoveries with respect to interest from Liquidation Proceeds and
other proceeds, to the extent permitted by Subsection 11.05)
of related Monthly Payments collected by the Servicer, or as otherwise provided
under Subsection 11.05.
Servicing
Fee
Rate: With respect to each Mortgage Loan, the per annum rate
set forth in the applicable Purchase Price and Terms Letter.
Servicing
Officer: Any officer of the Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name appears on a list of servicing officers furnished to the Purchaser by
the
Servicer, as such list may be amended from time to time.
Sponsor: The
person who organizes and initiates an asset-backed securities transaction by
selling or transferring assets, either directly or indirectly, including through
an affiliate, to the issuing entity.
Standard
&
Poor’s: Standard & Poor’s Ratings Services, a division of
The XxXxxx-Xxxx Companies Inc., and any successor thereto.
Standard
&
Poor’s
Glossary: The Standard & Poor’s LEVELS® Glossary, as may
be in effect from time to time.
Stated
Principal
Balance: As to each Mortgage Loan as to any date of
determination, (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 on such Mortgage Loan.
Static
Pool
Information: Static pool information as described in Item
1105(a)(1)-(3) and 1105(c) of Regulation AB.
Subcontractor: Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of Mortgage Loans but performs one or more
discrete functions
-14-
identified
in Item 1122(d) of Regulation AB with respect to Mortgage Loans under the
direction or authority of the Servicer or a Subservicer.
Subservicer: Any
Person that services Mortgage Loans on behalf of the Servicer or any Subservicer
and is responsible for the performance (whether directly or through Subservicers
or Subcontractors) of a substantial portion of the material servicing functions
required to be performed by the Servicer under this Agreement or any
Reconstitution Agreement that are identified in Item 1122(d) of Regulation
AB.
Third-Party
Originator: Each Person, other than a Qualified Correspondent,
that originated Mortgage Loans acquired by the Seller.
Transfer
Date: In the event the Servicer is terminated as servicer of a
Mortgage Loan pursuant to Subsections 12.04,
13.01,
14.01(c)
or 14.02, the date
on
which the Purchaser, or its designee, shall receive the transfer of servicing
responsibilities and begin to perform the servicing of such Mortgage Loans,
and
the Seller, as Servicer, shall cease all servicing
responsibilities.
Underwriting
Guidelines: The underwriting guidelines of the Seller, a copy of which is
attached hereto as Exhibit 8 and a
then-current copy of which shall be attached as an exhibit to the related
Assignment and Conveyance.
Whole
Loan
Transfer: The sale or transfer by the Purchaser of some or all
of the Mortgage Loans, other than a Securitization Transaction.
Section
2. Purchase
and
Conveyance. The Seller agrees to sell from time to time, and
the Purchaser agrees to purchase from time to time, Mortgage Loans having an
aggregate principal balance on the related Cut-off Date in an amount as set
forth in the related Purchase Price and Terms Letter, or in such other amount
as
agreed by the Purchaser and the Seller as evidenced by the actual aggregate
principal balance of the Mortgage Loans accepted by the Purchaser on each
Closing Date, together with the related Mortgage Files and all rights and
obligations arising under the documents contained therein. The Seller,
simultaneously with the delivery of the Mortgage Loan Schedule with respect
to
the related Mortgage Loan Package to be purchased on each Closing Date, shall
execute and deliver an Assignment and Conveyance Agreement in the form attached
hereto as Exhibit
14 (the “Assignment
and Conveyance
Agreement”).
With
respect to each Mortgage Loan purchased, the Purchaser shall own and be entitled
to receive: (a) all scheduled principal due after the related
Cut-off Date, (b) all other payments and/or recoveries of principal
collected after the related Cut-off Date (provided, however, that all
scheduled payments of principal due on or before the related Cut-off Date and
collected by the Servicer after the related Cut-off Date shall belong to the
Seller), and (c) all payments of interest on the Mortgage Loans net of the
Servicing Fee (minus that portion of any such interest payment that is allocable
to the period prior to the related Cut-off Date).
For
the
purposes of this Agreement, payments of scheduled principal and interest prepaid
for a Due Date beyond the related Cut-off Date shall not be applied to reduce
the Stated Principal Balance as of the related Cut-off Date. Such
prepaid amounts (minus the applicable
-15-
Servicing
Fee) shall be the property of the Purchaser. The Seller shall remit
to the Servicer for deposit any such prepaid amounts into the Custodial Account,
which account is established for the benefit of the Purchaser, for remittance
by
the Servicer to the Purchaser on the appropriate Remittance Date. All
payments of principal and interest, less the applicable Servicing Fee, due
on a
Due Date following the related Cut-off Date shall belong to the
Purchaser.
Section
3. Mortgage
Loan
Schedule. The Seller from time to time shall provide the Purchaser with
certain information constituting a preliminary listing of the Mortgage Loans
to
be purchased on each Closing Date in accordance with the related Purchase Price
and Terms Letter and this Agreement (each, a “Preliminary Mortgage
Schedule”).
The
Seller shall deliver the related Mortgage Loan Schedule for the Mortgage Loans
to be purchased on a particular Closing Date to the Purchaser at least five
(5)
Business Days prior to the related Closing Date. The Mortgage Loan Schedule
shall be the related Preliminary Mortgage Schedule with those Mortgage Loans
which have not been funded prior to the related Closing Date
deleted.
Section
4. Purchase
Price. Subject to the conditions set forth herein, the
Purchaser shall pay the Purchase Price plus accrued interest on the Stated
Principal Balance of each Mortgage Loan as of the applicable Cut-off Date at
its
Mortgage Loan Remittance Rate from the related Cut-off Date through the day
prior to the related Closing Date, both inclusive, to the Seller on the related
Closing Date. Such payment shall be made by wire transfer of
immediately available funds to the account designated by the
Seller.
Section
5. Examination
of Mortgage
Files. At least ten (10) Business Days prior to the related Closing Date,
the Seller shall either (a) deliver to the Purchaser or its designee in escrow,
for examination with respect to each Mortgage Loan to be purchased, the related
Mortgage File, including a copy of the Assignment of Mortgage (for Mortgage
Loans that are not MERS Designated Mortgage Loans), pertaining to each Mortgage
Loan, or (b) make the related Mortgage File available to the Purchaser for
examination at such other location as shall otherwise be acceptable to the
Purchaser. Such examination of the Mortgage Files may be made by the
Purchaser or its designee at any reasonable time before or after the related
Closing Date. If the Purchaser makes such examination prior to the
related Closing Date and determines, in its sole discretion, that any Mortgage
Loans do not conform to any of the requirements set forth in the related
Purchase Price and Terms Letter, or as an Exhibit annexed thereto, the Purchaser
may delete such Mortgage Loans from the related Mortgage Loan Schedule, and
such
Deleted Mortgage Loan (or Loans) may be replaced by a Qualified Substitute
Mortgage Loan (or Loans) acceptable to the Purchaser. The Purchaser
may, at its option and without notice to the Seller, purchase some or all of
the
Mortgage Loans without conducting any partial or complete
examination. The fact that the Purchaser or its designee has
conducted or has failed to conduct any partial or complete examination of the
Mortgage Files shall not impair in any way the Purchaser’s (or any of its
successor’s) rights to demand repurchase, substitution or other remedy as
provided in this Agreement. In the event that the Seller fails to deliver the
Mortgage File with respect to any Mortgage Loan, the Seller shall, upon the
request of the Purchaser, repurchase such Mortgage Loan as the price and in
the
manner specified in Subsection
7.03. Upon the consent of the Purchaser, the Seller shall make
available to the Purchaser in digital format on compact disks or DVDs, selected
Mortgage Loans and the related Mortgage File which shall
-16-
include,
without limitation, imaged documents required by the Purchaser to conduct an
examination of the Mortgage File.
Section
6. Delivery
of Mortgage Loan
Documents.
Subsection
6.01 Possession
of Mortgage
Files. The contents of each Mortgage File required to be
retained by or delivered to the Servicer to service the Mortgage Loans pursuant
to this Agreement and thus not delivered to the Purchaser, or its designee,
are
and shall be held in trust by the Servicer for the benefit of the Purchaser
as
the owner thereof. The Servicer’s possession of any portion of each
such Mortgage File is at the will of the Purchaser for the sole purpose of
facilitating servicing of the Mortgage Loans pursuant to this Agreement, and
such retention and possession by the Servicer shall be in a custodial capacity
only. The ownership of each Mortgage Note, each Mortgage and the
contents of each Mortgage File is vested in the Purchaser and the ownership
of
all records and documents with respect to the related Mortgage Loan prepared
by
or which come into the possession of the Servicer shall immediately vest in
the
Purchaser and shall be retained and maintained, in trust, by the Servicer at
the
will of the Purchaser in such custodial capacity only. The Mortgage
File retained by the Servicer with respect to each Mortgage Loan pursuant to
this Agreement shall be appropriately identified in the Servicer’s computer
system to reflect clearly the sale of such related Mortgage Loan to the
Purchaser. The Servicer shall release from its custody the contents
of any Mortgage File retained by it only in accordance with this Agreement,
except when such release is required in connection with a repurchase of any
such
Mortgage Loan pursuant to Subsection 7.03
or if required under applicable law or court order.
Subsection
6.02 Books and
Records.
Record title to each Mortgage and the related Mortgage Note as of the
related Closing Date shall be in the name of the Seller; 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 Servicer after the related Cut-off Date
on
or in connection with a Mortgage Loan as provided in Section 2 shall be
vested in the Purchaser; provided, however, that all
such funds received on or in connection with a Mortgage Loan as provided in
Section 2 shall
be received and held by the Servicer in trust for the benefit of the Purchaser
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 related Mortgage Loans by
the
Seller and not a pledge of such 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.
Subsection
6.03 Delivery
of Mortgage Loan
Documents.
-17-
The
Seller shall, at least two (2) Business Days prior to the related Closing
Date (or such later date as the Purchaser may reasonably request), deliver
and
release to the Purchaser, or its designee, the Mortgage Loan Documents with
respect to each Mortgage Loan pursuant to a bailee letter
agreement. In connection with the foregoing, the Seller shall
indemnify the Purchaser and its present and former directors, officers,
employees and agents, and hold such parties harmless against any losses,
damages, penalties, fines, forfeitures, legal fees and expenses and related
costs, judgments, and other costs and expenses based on or grounded upon, or
resulting from, the fact that no Mortgage Loan is covered by an ALTA or CLTA
lender’s title insurance policy. For purposes of the previous
sentence, “Purchaser” shall mean the Person then acting as the Purchaser under
this Agreement and any and all Persons who previously were “Purchasers” under
this Agreement.
To
the
extent received by it, the Servicer shall forward to the Purchaser, or its
designee, original documents evidencing an assumption, modification,
consolidation or extension of any Mortgage Loan entered into in accordance
with
this Agreement within two (2) weeks after their execution; provided, however, that the
Servicer shall provide the Purchaser, or its designee, with a copy, certified
by
the Servicer as a true copy, of any such document submitted for recordation
within two (2) weeks after 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 two (2) weeks following receipt of the original document by
the Servicer; provided,
however, that such original recorded document or certified copy thereof
shall be delivered to the Purchaser no later than 180 days following the
related Closing Date, unless there has been a delay at the applicable recording
office.
If
the
original or copy of any document submitted for recordation to the appropriate
public recording office is not delivered to the Purchaser or its designee within
180 days following the related Closing Date, the related Mortgage Loan
shall, upon the request of the Purchaser, be repurchased by the Seller at the
price and in the manner specified in Subsection
7.03. The foregoing repurchase obligation shall not apply if
the Seller cannot cause the Servicer to deliver such original or copy of any
document submitted for recordation to the appropriate public recording office
within the specified period due to a delay caused by the recording office in
the
applicable jurisdiction; provided that (i) the
Servicer shall instead deliver a recording receipt of such recording office
or,
if such recording receipt is not available, an officer’s certificate of a
servicing officer of the Servicer, confirming that such document has been
accepted for recording, and (ii) such document is delivered within
twelve (12) months of the related Closing Date.
The
Seller shall pay all initial recording fees, if any, for the Assignments of
Mortgage and any other fees or costs in transferring all original documents
to
the Custodian or, upon written request of the Purchaser, to the Purchaser or
the
Purchaser’s designee. The Purchaser or the Purchaser’s designee shall
be responsible for recording the Assignments of Mortgage and shall be reimbursed
by the Seller for the costs associated therewith pursuant to the preceding
sentence.
Subsection
6.04 MERS Designated
Loans
-18-
With
respect to each MERS Designated Mortgage Loan, the Seller shall, on or prior
to
the related Closing Date, designate the Purchaser as the Investor and the
Custodian as custodian, and no Person shall be listed as Interim Funder on
the
MERS System. In addition, on or prior to the related Closing Date,
Seller shall provide the Custodian and the Purchaser with a MERS Report listing
the Purchaser as the Investor, the Custodian as custodian and no Person listed
as Interim Funder with respect to each MERS Designated Mortgage
Loan.
Section
7. Representations,
Warranties
and Covenants; Remedies for Breach.
Subsection
7.01 Representations
and
Warranties Regarding Individual Mortgage Loans. The Seller hereby
represents and warrants to the Purchaser that, as to each Mortgage Loan, as
of
the related Closing Date or such other date specified herein:
(a) Mortgage
Loans as
Described. The information set forth in the related Mortgage
Loan Schedule is complete, true and correct;
(b) Payments
Current. All payments required to be made up to the related
Closing Date for the Mortgage Loan under the terms of the Mortgage Note have
been made and credited. No payment required under the Mortgage Loan
is 30 days or more delinquent nor has any payment under the Mortgage Loan
been 30 days or more delinquent at any time since the origination of the
Mortgage Loan;
(c) No
Outstanding
Charges. There are no defaults in complying with the terms of
the Mortgage, and all taxes, governmental assessments, insurance premiums,
water, sewer and municipal charges, leasehold payments or ground rents which
previously became due and owing have been paid, or an escrow of funds has been
established 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 under the
Mortgage Loan, except for interest accruing from the date of the Mortgage Note
or date of disbursement of the Mortgage Loan proceeds, whichever is earlier,
to
the day which precedes by one month the related Due Date of the first
installment of principal and interest;
(d) Original
Terms
Unmodified. The terms of the Mortgage Note and Mortgage have not been
impaired, waived, altered or modified in any respect, from the date of
origination except by a written instrument which has been recorded, if necessary
to protect the interests of the Purchaser, and which has been delivered to
the
Custodian or to such other Person as the Purchaser shall designate in writing,
and the terms of which are reflected in the related Mortgage Loan
Schedule. The substance of any such waiver, alteration or
modification has been approved by the issuer of any related PMI Policy and
the
title insurer, if any, to the extent required by the policy, and its terms
are
reflected on the related Mortgage Loan Schedule, if applicable. No
Mortgagor has been released, in whole or in part, except in connection with
an
assumption agreement, approved by the issuer of any related PMI Policy and
the
title insurer, to the extent required by the policy, and which assumption
agreement is part of the Mortgage Loan File delivered to the Custodian or to
such other Person as the Purchaser shall designate in writing and the terms
of
which are reflected in the related Mortgage Loan Schedule;
-19-
(e) No
Defenses. The Mortgage Loan is not subject to any right of
rescission, set-off, counterclaim or defense, including without limitation
the
defense of usury, nor will the operation of any of the terms of the Mortgage
Note or the Mortgage, or the exercise of any right thereunder, render either
the
Mortgage Note or the Mortgage unenforceable, in whole or in part, or subject
to
any right of rescission, set-off, counterclaim or defense, including without
limitation the defense of usury, and no such right of rescission, set-off,
counterclaim or defense has been asserted with respect thereto;
(f) Hazard
Insurance. Pursuant to the terms of the Mortgage, all
buildings or other improvements upon the Mortgaged Property are insured by
a
generally acceptable insurer against loss by fire, hazards of extended coverage
and such other hazards as are provided for in the Underwriting
Guidelines. If required by the National Flood Insurance Act of 1968,
as amended, each Mortgage Loan is covered by a flood insurance policy meeting
the requirements of the current guidelines of the Federal Insurance
Administration as in effect which policy conforms with the Underwriting
Guidelines. All individual insurance policies contain a standard
mortgagee clause naming the Seller and its successors and assigns as mortgagee,
and all premiums thereon have been paid. The Mortgage obligates the
Mortgagor thereunder to maintain the hazard insurance policy at the Mortgagor’s
cost and expense, and on the Mortgagor’s failure to do so, authorizes the holder
of the Mortgage to obtain and maintain such insurance at such Mortgagor’s cost
and expense, and to seek reimbursement therefor from the
Mortgagor. Where required by state law or regulation, the Mortgagor
has been given an opportunity to choose the carrier of the required hazard
insurance, provided the policy is not a “master” or “blanket”
hazard
insurance policy covering a condominium, or any hazard insurance policy covering
the common facilities of a planned unit development. The hazard
insurance policy is the valid and binding obligation of the insurer, is in
full
force and effect, and will be in full force and effect and inure to the benefit
of the Purchaser upon the consummation of the transactions contemplated by
this
Agreement. The Seller has not engaged in, and has no knowledge of the
Mortgagor’s having engaged in, any act or omission which would impair the
coverage of any such policy, the benefits of the endorsement provided for
herein, or the validity and binding effect of either including, without
limitation, no unlawful fee, commission, kickback or other unlawful compensation
or value of any kind has been or will be received, retained or realized by
any
attorney, firm or other person or entity, and no such unlawful items have been
received, retained or realized by the Seller;
(g) Compliance
with Applicable
Laws. Any and all requirements of any federal, state or local
law including, without limitation, usury, truth-in-lending, real estate
settlement procedures, consumer credit protection, predatory and abusive
lending, equal credit opportunity and disclosure laws applicable to the Mortgage
Loan, including, without limitation, any provisions relating to a Prepayment
Penalty, have been complied with, the consummation of the transactions
contemplated hereby will not involve the violation of any such laws or
regulations, and the Seller shall maintain in its possession, available for
the
Purchaser’s inspection, and shall deliver to the Purchaser upon demand, evidence
of compliance with all such requirements;
(h) No
Satisfaction of
Mortgage. The Mortgage has not been satisfied, canceled,
subordinated or rescinded, in whole or in part, and the Mortgaged Property
has
not been released from the lien of the Mortgage, in whole or in part, nor has
any instrument been executed that would effect any such release, cancellation,
subordination or rescission. The Seller has not
-20-
waived
the performance by the Mortgagor of any action, if the Mortgagor’s failure to
perform such action would cause the Mortgage Loan to be in default, nor has
the
Seller waived any default resulting from any action or inaction by the
Mortgagor;
(i) Type
of Mortgaged
Property. With respect to a Mortgage Loan that is not a Co-op
Loan and is not secured by an interest in a leasehold estate, the Mortgaged
Property is a fee simple estate that consists of a single parcel of real
property with a detached single family residence erected thereon, or a two-
to
four-family dwelling, or an individual residential condominium unit in a
condominium project, or an individual unit in a planned unit development, (or,
with respect to each Co-op Loan, an individual unit in a residential cooperative
housing corporation); provided, however, that any
condominium unit, planned unit development or residential cooperative housing
corporation shall conform with the Underwriting Guidelines. No
portion of the Mortgaged Property (or underlying Mortgaged Property, in the
case
of a Co-op Loan) is used for commercial purposes, and since the date of
origination, no portion of the Mortgaged Property has been used for commercial
purposes; provided,
that Mortgaged Properties which contain a home office shall not be
considered as being used for commercial purposes as long as the Mortgaged
Property has not been altered for commercial purposes and is not storing any
chemicals or raw materials other than those commonly used for homeowner repair,
maintenance and/or household purposes. None of the Mortgaged
Properties are Manufactured Homes, log homes, mobile homes, geodesic domes
or
other unique property types;
(j) Valid
First
Lien. The Mortgage is a valid, subsisting, enforceable and
perfected, first lien on the Mortgaged Property, including all buildings and
improvements on the Mortgaged Property and all additions, alterations and
replacements made at any time with respect to the foregoing. The lien
of the Mortgage is subject only to:
(i) the
lien of current real property taxes and assessments not yet due and
payable;
(ii) covenants,
conditions and restrictions, rights of way, easements and other matters of
the
public record as of the date of recording acceptable to prudent mortgage lending
institutions generally and specifically referred to in the lender’s title
insurance policy delivered to the originator of the Mortgage Loan and
(a) specifically referred to or otherwise considered in the appraisal made
for the originator of the Mortgage Loan or (b) which do not adversely
affect the Appraised Value of the Mortgaged Property set forth in such
appraisal; and
(iii) other
matters to which like properties are commonly subject which do not materially
interfere with the benefits of the security intended to be provided by the
Mortgage or the use, enjoyment, value or marketability of the related Mortgaged
Property.
Any
security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates a valid,
subsisting, enforceable and perfected first lien and first priority security
interest on the property described therein and the Seller has full right to
sell
and assign the same to the Purchaser.
-21-
With
respect to any Co-op Loan, the related Mortgage is a valid, subsisting and
enforceable first priority security interest on the related cooperative shares
securing the Mortgage Note, subject only to (a) liens of the related residential
cooperative housing corporation for unpaid assessments representing the
Mortgagor’s pro rata share of the related residential cooperative housing
corporation’s payments for its blanket mortgage, current and future real
property taxes, insurance premiums, maintenance fees and other assessments
to
which like collateral is commonly subject and (b) other matters to which like
collateral is commonly subject which do not materially interfere with the
benefits of the security interest intended to be provided by the related
Security Agreement;
(k) Validity
of Mortgage
Documents. The Mortgage Note and the Mortgage and any other
agreement executed and delivered by a Mortgagor in connection with a Mortgage
Loan are genuine, and each is the legal, valid and binding obligation of the
maker thereof enforceable in accordance with its terms. All parties
to the Mortgage Note, the Mortgage and any other such related agreement had
legal capacity to enter into the Mortgage Loan and to execute and deliver the
Mortgage Note, the Mortgage and any such agreement, and the Mortgage Note,
the
Mortgage and any other such related agreement have been duly and properly
executed by other such related parties. No fraud, error, omission,
misrepresentation, negligence or similar occurrence with respect to a Mortgage
Loan has taken place on the part of the Seller in connection with the
origination of the Mortgage Loan or in the application of any insurance in
relation to such Mortgage Loan. The documents, instruments and
agreements submitted for loan underwriting were not falsified and contain no
untrue statement of material fact or omit to state a material fact required
to
be stated therein or necessary to make the information and statements therein
not misleading. No fraud, error, omission, misrepresentation,
negligence or similar occurrence with respect to a Mortgage Loan has taken
place
on the part of any Person, including without limitation, the Mortgagor, any
appraiser, any builder or developer, or any other party involved in the
origination of the Mortgage Loan or in the application for any insurance in
relation to such Mortgage Loan. The Seller has reviewed all of the
documents constituting the Servicing File and has made such inquiries as it
deems necessary to make and confirm the accuracy of the representations set
forth herein;
(l) Full
Disbursement of
Proceeds. The Mortgage Loan has been closed and the proceeds
of the Mortgage Loan have been fully disbursed and there is no requirement
for
future advances thereunder, and any and all requirements as to completion of
any
on-site or off-site improvement and as to disbursements of any escrow funds
therefor have been complied with. All costs, fees and expenses
incurred in making or closing the Mortgage Loan and the recording of the
Mortgage were paid, and the Mortgagor is not entitled to any refund of any
amounts paid or due under the Mortgage Note or Mortgage;
(m) Ownership. The
Seller is the sole owner of record and holder of the Mortgage Loan and the
indebtedness evidenced by each Mortgage Note and upon the sale of the Mortgage
Loans to the Purchaser, the Seller will retain the Mortgage Files or any part
thereof with respect thereto not delivered to the Custodian, the Purchaser
or
the Purchaser’s designee, in trust only for the purpose of servicing and
supervising the servicing of each Mortgage Loan. The Mortgage Loan is
not assigned or pledged, and the Seller has good, indefeasible and marketable
title thereto, and has full right to transfer and sell the Mortgage Loan to
the
Purchaser free and clear of any encumbrance, equity, participation interest,
lien, pledge, charge, claim or security interest,
-22-
and
has
full right and authority subject to no interest or participation of, or
agreement with, any other party, to sell and assign each Mortgage Loan pursuant
to this Agreement and following the sale of each Mortgage Loan, the Purchaser
will own such Mortgage Loan free and clear of any encumbrance, equity,
participation interest, lien, pledge, charge, claim or security
interest. The Seller intends to relinquish all rights to possess,
control and monitor the Mortgage Loan. After the related Closing
Date, the Seller will have no right to modify or alter the terms of the sale
of
the Mortgage Loan and the Seller will have no obligation or right to repurchase
the Mortgage Loan or substitute another Mortgage Loan, except as provided in
this Agreement;
(n) Doing
Business. All parties which have had any interest in the
Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise, are (or,
during the period in which they held and disposed of such interest, were)
(1) in compliance with any and all applicable licensing requirements of the
laws of the state wherein the Mortgaged Property is located, and (2) either
(i) organized under the laws of such state, or (ii) qualified to do
business in such state, or (iii) a federal savings and loan association, a
savings bank or a national bank having a principal office in such state, or
(3) not doing business in such state;
(o) LTV,
PMI
Policy. No Mortgage Loan has an LTV greater than
100%. Any Mortgage Loan that had at the time of origination an LTV in
excess of 80% is insured as to payment defaults by a PMI Policy. Any
PMI Policy in effect covers the related Mortgage Loan for the life of such
Mortgage Loan, subject to applicable law. All provisions of such PMI
Policy have been and are being complied with, such policy is in full force
and
effect, and all premiums due thereunder have been paid. No action,
inaction, or event has occurred and no state of facts exists that has, or will
result in the exclusion from, denial of, or defense to coverage. Any
Mortgage Loan subject to a PMI Policy obligates the Mortgagor thereunder to
maintain the PMI Policy and to pay all premiums and charges in connection
therewith. The Mortgage Interest Rate for the Mortgage Loans as set
forth on the related Mortgage Loan Schedule is net of any PMI Policy insurance
premium or LPMI Fee if the related LPMI Policy is lender-paid;
(p) Title
Insurance. With respect to a Mortgage Loan which is not a
Co-op Loan, the Mortgage Loan is covered by an ALTA lender’s title insurance
policy or other generally acceptable form of policy or insurance acceptable
under the Underwriting Guidelines and each such title insurance policy is issued
by a title insurer acceptable under the Underwriting Guidelines and qualified
to
do business in the jurisdiction where the Mortgaged Property is located,
insuring the Seller, its successors and assigns, as to the first priority lien
of the Mortgage in the original principal amount of the Mortgage Loan (or to
the
extent a Mortgage Note provides for negative amortization, the maximum amount
of
negative amortization in accordance with the Mortgage), subject only to the
exceptions contained in clauses (i) and (ii) of paragraph (j) of this
Subsection 7.02,
and in the case of Adjustable Rate Mortgage Loans, against any loss by reason
of
the invalidity or unenforceability of the lien resulting from the provisions
of
the Mortgage providing for adjustment to the Mortgage Interest Rate and Monthly
Payment. Where required by state law or regulation, the Mortgagor has
been given the opportunity to choose the carrier of the required mortgage title
insurance. Additionally, such lender’s title insurance policy
affirmatively insures ingress and egress, and against encroachments by or upon
the Mortgaged Property or any interest therein. The Seller, its
successor and assigns, are the sole insured of such lender’s title insurance
policy, and such lender’s title insurance policy is valid and remains in full
force and effect and will be in force and effect upon the consummation of the
transactions
-23-
contemplated
by this Agreement. No claims have been made under such lender’s title
insurance policy, and no prior holder of the related Mortgage, including the
Seller, has done, by act or omission, anything which would impair the coverage
of such lender’s title insurance policy, including without limitation, no
unlawful fee, commission, kickback or other unlawful compensation or value
of
any kind has been or will be received, retained or realized by any attorney,
firm or other person or entity, and no such unlawful items have been received,
retained or realized by the Seller;
(q) No
Defaults. Other than payments due but not yet 30 days or
more delinquent, there is no default, breach, violation or event which would
permit acceleration existing under the Mortgage or the Mortgage Note and no
event which, with the passage of time or with notice and the expiration of
any
grace or cure period, would constitute a default, breach, violation or event
which would permit acceleration, and neither the Seller nor any of its
affiliates nor any of their respective predecessors, have waived any default,
breach, violation or event which would permit acceleration;
(r) No
Mechanics’
Liens. There are no mechanics’ or similar liens or claims
which have been filed for work, labor or material (and no rights are outstanding
that under law could give rise to such liens) affecting the related Mortgaged
Property which are or may be liens prior to, or equal or coordinate with, the
lien of the related Mortgage;
(s) Location
of Improvements; No
Encroachments. All improvements which were considered in
determining the Appraised Value of the Mortgaged Property lay wholly within
the
boundaries and building restriction lines of the Mortgaged Property, and no
improvements on adjoining properties encroach upon the Mortgaged
Property. No improvement located on or being part of the Mortgaged
Property is in violation of any applicable zoning law or
regulation;
(t) Origination;
Payment
Terms. The Mortgage Loan was originated by a mortgagee
approved by the Secretary of Housing and Urban Development pursuant to
Sections 203 and 211 of the National Housing Act, a savings and loan
association, a savings bank, a commercial bank, credit union, insurance company
or other similar institution which is supervised and examined by a federal
or
state authority. Principal payments on the Mortgage Loan commenced no
more than seventy days after funds were disbursed in connection with the
Mortgage Loan. The Mortgage Interest Rate as well as, in the case of
an Adjustable Rate Mortgage Loan, the Lifetime Rate Cap and the Periodic Rate
Cap and the Periodic Rate Floor are as set forth on the related Mortgage Loan
Schedule. The Mortgage Interest Rate is adjusted, with respect to
Adjustable Rate Mortgage Loans, on each Interest Rate Adjustment Date to equal
the Index plus the Gross Margin (rounded up or down to the nearest 0.125%),
subject to the Periodic Rate Cap. The Mortgage Note is payable in
equal monthly installments of principal (except for Mortgage Loans that provide
for a fixed period of interest-only payments at the beginning of their term)
and
interest, which installments of interest, with respect to Adjustable Rate
Mortgage Loans, are subject to change due to the adjustments to the Mortgage
Interest Rate on each Interest Rate Adjustment Date, with interest calculated
and payable in arrears, sufficient to amortize the Mortgage Loan fully by the
stated maturity date, over an original term of not more than thirty years from
commencement of amortization. With respect to any Mortgage Loan that
provides for a fixed period of interest-only payments at the beginning of its
term, at the end of such interest-only period, the Monthly Payment will be
recalculated so as to require Monthly
-24-
Payments
sufficient to amortize the Mortgage Loan fully by its stated maturity
date. Unless otherwise specified on the related Mortgage Loan
Schedule, the Mortgage Loan is payable on the first day of each
month. The Mortgage Loan by its original terms or any modification
thereof, does not provide for amortization beyond its scheduled maturity
date;
(u) Customary
Provisions. The Mortgage contains customary and enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the realization against the Mortgaged Property of the benefits
of
the security provided thereby, including, (i) in the case of a Mortgage
designated as a deed of trust, by trustee’s sale, and (ii) otherwise by
judicial foreclosure. Upon default by a Mortgagor on a Mortgage Loan
and foreclosure on, or trustee’s sale of, the Mortgaged Property pursuant to the
proper procedures, the holder of the Mortgage Loan will be able to deliver
good
and merchantable title to the Mortgaged Property. There is no
homestead or other exemption available to a Mortgagor which would interfere
with
the right to sell the Mortgaged Property at a trustee’s sale or the right to
foreclose the Mortgage, subject to applicable federal and state laws and
judicial precedent with respect to bankruptcy and right of redemption or similar
law;
(v) Conformance
with Agency and
Underwriting Guidelines. The Mortgage Loan was underwritten in
accordance with the Underwriting Guidelines (a copy of which is attached to
the
related Assignment and Conveyance as Exhibit
C). The Mortgage Note and Mortgage are on forms acceptable to
Xxxxxxx Mac or Xxxxxx Mae and no representations have been made to a Mortgagor
that are inconsistent with the mortgage instruments used;
(w) Occupancy
of the Mortgaged
Property. As of the related Closing Date 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
and fire underwriting certificates, have been made or obtained from the
appropriate authorities. Unless otherwise specified on the related
Mortgage Loan Schedule, the Mortgagor represented at the time of origination
of
the Mortgage Loan that the Mortgagor would occupy the Mortgaged Property as
the
Mortgagor’s primary residence;
(x) No
Additional
Collateral. The Mortgage Note is not and has not been secured
by any collateral except the lien of the corresponding Mortgage and the security
interest of any applicable security agreement or chattel mortgage referred
to in
clause (j) above;
(y) Deeds
of
Trust. In the event the Mortgage constitutes a deed of trust,
a trustee, authorized and duly qualified under applicable law to serve as such,
has been properly designated and currently so serves and is named in the
Mortgage, and no fees or expenses are or will become payable by the Purchaser
to
the trustee under the deed of trust, except in connection with a trustee’s sale
after default by the Mortgagor;
(z) Acceptable
Investment. There are no circumstances or conditions with
respect to the Mortgage, the Mortgaged Property, the Mortgagor, the Mortgage
File or the Mortgagor’s credit standing to the Seller's knowledge, that can
reasonably be expected to cause private institutional investors who invest
in
prime mortgage loans similar to the Mortgage Loan to regard the Mortgage Loan
as
an unacceptable investment, cause the Mortgage Loan to become
-25-
delinquent,
or adversely affect the value or marketability of the Mortgage Loan, or cause
the Mortgage Loan to prepay during any period materially faster or slower than
the mortgage loans originated by the Seller generally;
(aa) Delivery
of Mortgage
Documents. The Mortgage Note, the Mortgage, the Assignment of
Mortgage and any other documents required to be delivered under this Agreement
for each Mortgage Loan have been delivered to the Custodian. The
Seller is in possession of a complete, true and accurate Mortgage File in
compliance with Exhibit 2
attached hereto, except for such documents the originals of which have been
delivered to the Custodian;
(bb) Transfer
of Mortgage
Loans. The Assignment of Mortgage (except with respect to any
Mortgage that has been recorded in the name of MERS or its designee) with
respect to each Mortgage Loan is in recordable form and is acceptable for
recording under the laws of the jurisdiction in which the Mortgaged Property
is
located;
(cc) Due-On-Sale. With
respect to each Fixed Rate Mortgage Loan, the Mortgage contains an enforceable
provision for the acceleration of the payment of the unpaid principal balance
of
the Mortgage Loan in the event that the Mortgaged Property is sold or
transferred without the prior written consent of the mortgagee thereunder,
and
to the best of the Seller’s knowledge, such provision is
enforceable;
(dd) Assumability. With
respect to each Adjustable Rate Mortgage Loan, the Mortgage Loan Documents
provide that after the related first Interest Rate Adjustment Date, a related
Mortgage Loan may only be assumed if the party assuming such Mortgage Loan
meets
certain credit requirements stated in the Mortgage Loan Documents;
(ee) No
Buydown Provisions; No
Graduated Payments or Contingent Interests. The Mortgage Loan
does not contain provisions pursuant to which Monthly Payments are paid or
partially paid with funds deposited in any separate account established by
the
Seller, the Mortgagor, or anyone on behalf of the Mortgagor, or paid by any
source other than the Mortgagor nor does it contain any other similar provisions
which may constitute a “buydown” provision. The Mortgage Loan is not
a graduated payment mortgage loan and the Mortgage Loan does not have a shared
appreciation or other contingent interest feature;
(ff) Consolidation
of Future
Advances. Any future advances made to the Mortgagor prior to
the applicable Cut-off Date have been consolidated with the outstanding
principal amount secured by the Mortgage, and the secured principal amount,
as
consolidated, bears a single interest rate and single repayment
term. The lien of the Mortgage securing the consolidated principal
amount is expressly insured as having first lien priority by a title insurance
policy, an endorsement to the policy insuring the mortgagee’s consolidated
interest or by other title evidence acceptable to Xxxxxx Xxx and Xxxxxxx
Mac. The consolidated principal amount does not exceed the original
principal amount of the Mortgage Loan;
(gg) Mortgaged
Property
Undamaged; No Condemnation Proceedings. There is no proceeding
pending or threatened for the total or partial condemnation of the Mortgaged
Property. The Mortgaged Property is undamaged by waste, fire,
earthquake or earth movement, windstorm, flood, tornado or other casualty so
as
to affect adversely the value of the Mortgaged
-26-
Property
as security for the Mortgage Loan or the use for which the premises were
intended and each Mortgaged Property is in good repair. There have
not been any condemnation proceedings with respect to the Mortgaged Property
and
the Seller has no knowledge of any such proceedings in the future;
(hh) Collection
Practices; Escrow
Deposits; Interest Rate Adjustments. The origination,
servicing and collection practices used by the Seller with respect to the
Mortgage Loan have been in all respects in compliance with Accepted Servicing
Practices, applicable laws and regulations, and have been in all respects legal
and proper. With respect to escrow deposits and Escrow Payments, all
such payments are in the possession of, or under the control of, the Seller
and
there exist no deficiencies in connection therewith for which customary
arrangements for repayment thereof have not been made. All Escrow
Payments have been collected in full compliance with state and federal law
and
the provisions of the related Mortgage Note and Mortgage. An escrow
of funds is not prohibited by applicable law and has been established in an
amount sufficient to pay for every item that remains unpaid and has been
assessed but is not yet due and payable. No escrow deposits or Escrow
Payments or other charges or payments due the Seller have been capitalized
under
the Mortgage or the Mortgage Note. All Mortgage Interest Rate
adjustments have been made in strict compliance with state and federal law
and
the terms of the related Mortgage and Mortgage Note on the related Interest
Rate
Adjustment Date. If, pursuant to the terms of the Mortgage Note,
another index was selected for determining the Mortgage Interest Rate, the
same
index was used with respect to each Mortgage Note which required a new index
to
be selected, and such selection did not conflict with the terms of the related
Mortgage Note. The Seller executed and delivered any and all notices
required under applicable law and the terms of the related Mortgage Note and
Mortgage regarding the Mortgage Interest Rate and the Monthly Payment
adjustments. Any interest required to be paid pursuant to state,
federal and local law has been properly paid and credited;
(ii) Conversion
to Fixed Interest
Rate. The Mortgage Loan does not contain a provision whereby the
Mortgagor is permitted to convert the Mortgage Interest Rate from an adjustable
rate to a fixed rate;
(jj) Other
Insurance Policies; No
Defense to Coverage. No action, inaction or event has occurred and no
state of facts exists or has existed on or prior to the Closing Date that has
resulted or will result in the exclusion from, denial of, or defense to coverage
under any applicable hazard insurance policy, PMI Policy, LPMI Policy or
bankruptcy bond (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),
irrespective of the cause of such failure of coverage. The Seller has
caused or will cause to be performed any and all acts required to preserve
the
rights and remedies of the Purchaser in any insurance policies applicable to
the
Mortgage Loans including, without limitation, any necessary notifications of
insurers, assignments of policies or interests therein, and establishments
of
coinsured, joint loss payee and mortgagee rights in favor of the
Purchaser. In connection with the placement of any such insurance, no
commission, fee, or other compensation has been or will be received by the
Seller or by any officer, director, or employee of the Seller or any designee
of
the Seller or any corporation in which the Seller or any officer, director,
or
employee had a financial interest at the time of placement of such
insurance;
-27-
(kk) No
Violation of
Environmental Laws. To the best of the Seller’s knowledge,
there is no pending action or proceeding directly involving the Mortgaged
Property in which compliance with any environmental law, rule or regulation
is
an issue; there is no violation of any environmental law, rule or regulation
with respect to the Mortgage Property; and nothing further remains to be done
to
satisfy in full all requirements of each such law, rule or regulation
constituting a prerequisite to use and enjoyment of said property;
(ll) Servicemembers
Civil Relief
Act. The Mortgagor has not notified the Seller, and the Seller
has no knowledge of any relief requested or allowed to the Mortgagor under
the
Servicemembers Civil Relief Act, or other similar state statute;
(mm) Appraisal. The
Mortgage File contains an appraisal of the related Mortgaged Property signed
prior to the origination of the Mortgage Loan application by a Qualified
Appraiser, duly appointed by the Seller, who had no interest, direct or indirect
in the Mortgaged Property or in any loan made on the security thereof, and
whose
compensation is not affected by the approval or disapproval of the Mortgage
Loan, and the appraisal and appraiser both satisfy the requirements of Xxxxxx
Xxx or Xxxxxxx Mac and Title XI of the Financial Institutions Reform, Recovery,
and Enforcement Act of 1989 and the regulations promulgated thereunder, all
as
in effect on the date the Mortgage Loan was originated;
(nn) Disclosure
Materials. The Mortgagor has executed a statement to the
effect that the Mortgagor has received all disclosure materials required by,
and
the Seller has complied with, all applicable law with respect to the making
of
the Mortgage Loans. The Seller shall maintain such statement in the
Mortgage File;
(oo) Construction
or
Rehabilitation of Mortgaged Property. No Mortgage Loan was
made in connection with the construction (other than a “construct-to-perm” loan)
or rehabilitation of a Mortgaged Property or facilitating the trade-in or
exchange of a Mortgaged Property;
(pp) Escrow
Analysis. If applicable, with respect to each Mortgage Loan,
the Seller has within the last twelve months (unless such Mortgage was
originated within such twelve month period) analyzed the required Escrow
Payments for each Mortgage 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;
(qq) Credit
Information. As to each consumer report (as defined in the
Fair Credit Reporting Act, Public Law 91-508) or other credit information
furnished by the Seller to the Purchaser, that Seller has full right and
authority and is not precluded by law or contract from furnishing such
information to the Purchaser and the Purchaser is not precluded from furnishing
the same to any subsequent or prospective purchaser of such
Mortgage. The Seller has in its capacity as servicer, for each
Mortgage Loan, fully furnished, in accordance with the Fair Credit Reporting
Act
and its implementing regulations, accurate and complete information (e.g.,
favorable and unfavorable) on its borrower credit files to Equifax, Experian
and
Trans Union Credit Information Company (three of the credit repositories),
on a
monthly basis;
-00-
(xx) Xxxxxxxxxx. If
the Mortgage Loan is secured by a leasehold estate, (1) the ground lease is
assignable or transferable; (2) the ground lease will not terminate earlier
than
five years after the maturity date of the Mortgage Loan; (3) the ground lease
does not provide for termination of the lease in the event of lessee’s default
without the mortgagee being entitled to receive written notice of, and a
reasonable opportunity to cure the default; (4) the ground lease permits the
mortgaging of the related Mortgaged Property; (5) the ground lease protects
the
mortgagee’s interests in the event of a property condemnation; (6) all ground
lease rents, other payments, or assessments that have become due have been
paid;
and (7) the use of leasehold estates for residential properties is a widely
accepted practice in the jurisdiction in which the Mortgaged Property is
located.
(ss) Prepayment
Penalty. Each Mortgage Loan that is subject to a prepayment
penalty as provided in the related Mortgage Note is identified on the related
Mortgage Loan Schedule. With respect to Mortgage Loans originated
prior to October 1, 2002, no such Prepayment Penalty may be imposed for a
term in excess of five (5) years following origination. With respect
to Mortgage Loans originated on or after October 1, 2002, no such
Prepayment Penalty may be imposed for a term in excess of three (3) years
following origination, unless otherwise stated on the Mortgage Loan
Schedule;
(tt)
Predatory Lending
Regulations. No Mortgage Loan is a High Cost Loan or Covered
Loan, as applicable. No Mortgage Loan is covered by the Home
Ownership and Equity Protection Act of 1994 and no Mortgage Loan is in violation
of any comparable state or local law. The Mortgaged Property is not
located in a jurisdiction where a breach of this representation with respect
to
the related Mortgage Loan may result in additional assignee liability to the
Purchaser, as determined by Purchaser in its reasonable discretion;
(uu) Single-premium
credit life
insurance policy. In connection with the origination of the
Mortgage Loan, no proceeds from such Mortgage Loan were used to finance or
acquire a single-premium credit life insurance policy, credit disability, credit
unemployment or credit property insurance policy;
(vv) Qualified
Mortgage. The Mortgage Loan is a qualified mortgage under
Section 860G(a)(3) of the Code;
(ww) Tax
Service Contract.
Each Mortgage Loan is covered by a paid in full, life of loan, tax service
contract issued by LandAmerica Tax Services (formerly LERETA Tax and Flood)
and
such contract is transferable. On the related Closing Date, the
Seller shall remit to the Purchaser a transfer fee of two dollars ($2.00) for
each Mortgage Loan covered by such a tax service contract. If such a
tax service contract with LandAmerica Tax Services is not in place, then a
placement fee of seventy two dollars ($72.00) will apply to each such Mortgage
Loan;
(xx) Origination. No
predatory or deceptive lending practices, including, without limitation, the
extension of credit without regard to the ability of the Mortgagor to repay
and
the extension of credit which has no apparent benefit to the Mortgagor, were
employed in the origination of the Mortgage Loan;
-29-
(yy) Recordation. Each
original Mortgage was recorded and all subsequent assignments of the original
Mortgage (other than the assignment to the Purchaser) have been recorded in
the
appropriate jurisdictions wherein such recordation is necessary to perfect
the
lien thereof as against creditors of the Seller, or is in the process of being
recorded;
(zz) Co-op
Loans. With respect to a Mortgage Loan that is a Co-op Loan,
the stock that is pledged as security for the Mortgage Loan is held by a person
as a tenant-stockholder (as defined in Section 216 of the Code) in a
cooperative housing corporation (as defined in Section 216 of the
Code);
(aaa) Mortgagor
Bankruptcy. On or prior to the date 60 days after the related
Closing Date, the Mortgagor has not filed and will not file a bankruptcy
petition or has not become the subject and will not become the subject of
involuntary bankruptcy proceedings or has not consented to or will not consent
to the filing of a bankruptcy proceeding against it or to a receiver being
appointed in respect of the related Mortgaged Property;
(bbb) No
Prior
Offer. The Mortgage Loan has not previously been offered for
sale;
(ccc) Georgia
Fair Lending
Act. There is no Mortgage Loan that was originated (or
modified) on or after October 1, 2002 and before March 7, 2003 which is secured
by property located in the State of Georgia. There is no Mortgage
Loan that was originated on or after March 7, 2003 that is a “high cost home
loan” as defined under the Georgia Fair Lending Act;
(ddd) No
Arbitration. No Mortgagor with respect to any Mortgage Loan
originated on or after August 1, 2004 agreed to submit to arbitration to resolve
any dispute arising out of or relating in any way to the mortgage loan
transaction; and
(eee) Flood
Service
Contract. Each Mortgage Loan is covered by a paid in full,
life of loan, flood service contract issued by either First American Flood
Data
Services or Fidelity, and such contract is transferable. If no such
flood service contract is in place, or if such flood service contract is issued
by an insurer other than First American Flood Data Services or Fidelity, then
on
the related Closing Date, the Seller shall remit to the Purchaser a placement
fee of ten dollars ($10.00) for each such Mortgage Loan
Subsection
7.02 Seller
Representations. The Seller hereby represents and warrants to
the Purchaser that, as of the related Closing Date:
(a) Due
Organization and
Authority. The Seller is a New York corporation, validly
existing, and in good standing under the laws of its jurisdiction of
incorporation or formation and has all licenses necessary to carry on its
business as now being conducted and is licensed, qualified and in good standing
in the states where the Mortgaged Property is located if the laws of such state
require licensing or qualification in order to conduct business of the type
conducted by the Seller. The Seller has corporate power and authority
to execute and deliver this Agreement and to perform its obligations hereunder;
the execution, delivery and performance of this Agreement (including all
instruments of transfer to be delivered pursuant to this Agreement) by the
Seller and the consummation of the transactions contemplated hereby have been
duly and validly authorized; this Agreement has been duly executed and delivered
and constitutes the valid, legal, binding and enforceable obligation of the
Seller, except as enforceability may be
-30-
limited
by (i) bankruptcy, insolvency, liquidation, receivership, moratorium,
reorganization or other similar laws affecting the enforcement of the rights
of
creditors and (ii) general principles of equity, whether enforcement is sought
in a proceeding in equity or at law. 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;
(b) No
Consent
Required. No consent, approval, authorization or order is
required for the transactions contemplated by this Agreement from any court,
governmental agency or body, or federal or state regulatory authority having
jurisdiction over the Seller is required or, if required, such consent,
approval, authorization or order has been or will, prior to the related Closing
Date, be obtained;
(c) Ordinary
Course of
Business. The consummation of the transactions contemplated by
this Agreement are in the ordinary course of business of the Seller, and the
transfer, assignment and conveyance of the Mortgage Notes and the Mortgages
by
the Seller pursuant to this Agreement are not subject to the bulk transfer
or
any similar statutory provisions in effect in any applicable
jurisdiction;
(d) No
Conflicts. Neither the execution and delivery of this
Agreement, the acquisition or origination of the Mortgage Loans by the Seller,
the sale of the Mortgage Loans to the Purchaser, the consummation of the
transactions contemplated hereby, nor the fulfillment of or compliance with
the
terms and conditions of this Agreement, will conflict with or result in a breach
of any of the terms, conditions or provisions of the Seller’s charter or by-laws
or any legal restriction or any agreement or instrument to which the Seller
is
now a party or by which it is bound, or constitute a default or result in an
acceleration under any of the foregoing, or result in the violation of any
law,
rule, regulation, order, judgment or decree to which the Seller or its property
is subject, or result in the creation or imposition of any lien, charge or
encumbrance that would have an adverse effect upon any of its properties
pursuant to the terms of any mortgage, contract, deed of trust or other
instrument, or impair the ability of the Purchaser to realize on the Mortgage
Loans, impair the value of the Mortgage Loans, or impair the ability of the
Purchaser to realize the full amount of any insurance benefits accruing pursuant
to this Agreement;
(e) No
Litigation
Pending. There is no action, suit, proceeding or investigation
pending or to the Seller's knowledge, threatened against the Seller, before
any
court, administrative agency or other tribunal asserting the invalidity of
this
Agreement, seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or which, either in any one instance or in the
aggregate, may result in any material adverse change in the business,
operations, financial condition, properties or assets of the Seller, or in
any
material impairment of the right or ability of the Seller to carry on its
business substantially as now conducted, or in any material liability on the
part 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 which
would be likely to impair materially the ability of the Seller to perform under
the terms of this Agreement;
(f) Ability
to Perform;
Solvency. The Seller does not believe, nor does it have any
reason or cause to believe, that it cannot perform each and every covenant
contained in this Agreement. The Seller is solvent and the sale of
the Mortgage Loans will not cause the Seller to
-31-
become
insolvent. The sale of the Mortgage Loans is not undertaken with the
intent to hinder, delay or defraud any of Seller’s creditors;
(g) Seller’s
Origination. The Seller’s decision to originate any mortgage
loan or to deny any mortgage loan application is an independent decision based
upon the Underwriting Guidelines, and is in no way made as a result of
Purchaser’s decision to purchase, or not to purchase, or the price Purchaser may
offer to pay for, any such mortgage loan, if originated;
(h) Anti-Money
Laundering
Laws. The Seller has complied with all applicable anti-money
laundering laws and regulations, including without limitation the USA Patriot
Act of 2001 (collectively, the “Anti-Money Laundering
Laws”); the Seller has established an anti-money laundering compliance
program as required by the Anti-Money Laundering Laws, has conducted the
requisite due diligence in connection with the origination of each Mortgage
Loan
for purposes of the Anti-Money Laundering Laws, including with respect to the
legitimacy of the applicable Mortgagor and the origin of the assets used by
the
said Mortgagor to purchase the property in question, and maintains, and will
maintain, sufficient information to identify the applicable Mortgagor for
purposes of the Anti-Money Laundering Laws
(i) Ability
to
Service. Seller has 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 duly qualified,
licensed, registered and otherwise authorized under all applicable federal,
state and local laws, and regulations, if applicable, meets the minimum capital
requirements set forth by HUD, the OTS, the OCC or the FDIC, if applicable,
and
is in good standing to enforce, originate, sell mortgage loans to, and service
mortgage loans in the jurisdiction wherein the Mortgaged Properties are
located;
(j) Reasonable
Servicing
Fee. The Seller acknowledges and agrees that the Servicing Fee
represents reasonable compensation for performing such services and that the
entire Servicing Fee shall be treated by the Seller, for accounting and tax
purposes, as compensation for the servicing and administration of the Mortgage
Loans pursuant to this Agreement;
(k) Selection
Process. The Mortgage Loans were selected from among the
outstanding one- to four-family mortgage loans in the Seller’s portfolio at the
related Closing Date as to which the criteria set forth in the related Purchase
Price and Terms Letter are satisfied and the representations and warranties
set
forth in Subsection
7.01 could be made and such selection was not made in a manner so as to
affect adversely the interests of the Purchaser;
(l) Delivery
to the
Custodian. The Mortgage Note, the Mortgage, the Assignment of
Mortgage and any other documents required to be delivered with respect to each
Mortgage Loan pursuant to the Custodial Agreement, shall be delivered to the
Custodian all in compliance with the specific requirements of the Custodial
Agreement. With respect to each Mortgage Loan, the Seller will be in
possession of a complete Mortgage File in compliance with Exhibit 2 hereto,
except for such documents as will be delivered to the Custodian;
(m) Mortgage
Loan
Characteristics. The characteristics of the related Mortgage
Loan Package are as set forth on the description of the pool characteristics
for
the applicable Mortgage
-32-
Loan
Package delivered pursuant to Section 9 on the
related Closing Date in the form attached as Exhibit B to each
related Assignment and Conveyance Agreement;
(n) No
Untrue
Information. Neither this Agreement nor any information,
statement, tape, diskette, report, form, or other document furnished or to
be
furnished pursuant to this Agreement or any Reconstitution Agreement or in
connection with the transactions contemplated hereby (including any
Securitization Transaction or Whole Loan Transfer) contains or will contain
any
untrue statement of fact or omits or will omit to state a fact necessary to
make
the statements contained herein or therein not misleading;
(o) No
Brokers. 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;
(p) Sale
Treatment. The Seller expects to be advised by its independent
certified public accountants that under generally accepted accounting principles
the transfer of the Mortgage Loans may be treated as a sale on the books and
records of the Seller and the Seller has determined that the disposition of
the
Mortgage Loans pursuant to this Agreement will be afforded sale treatment for
tax and accounting purposes;
(q) Owner
of
Record. The Seller is the owner of record of each Mortgage and
the indebtedness evidenced by each Mortgage Note, except for the Assignments
of
Mortgage which have been sent for recording, and upon recordation the Seller
will be the owner of record of each Mortgage and the indebtedness evidenced
by
each Mortgage Note, and upon the sale of the Mortgage Loans to the Purchaser,
the Seller will retain the Mortgage Files with respect thereto in trust only
for
the purpose of servicing and supervising the servicing of each Mortgage
Loan;
(r) Reasonable
Purchase
Price. The consideration received by the Seller upon the sale
of the Mortgage Loans under this Agreement constitutes fair consideration and
reasonably equivalent value for the Mortgage Loans;
Subsection
7.03 Remedies
for Breach of
Representations and Warranties. It is understood and agreed
that the representations and warranties set forth in Subsections 7.01
and 7.02 shall survive the sale of the Mortgage Loans to the Purchaser and
shall
inure to the benefit of the Purchaser, notwithstanding any restrictive or
qualified endorsement on any Mortgage Note or Assignment of Mortgage or the
examination or lack of examination of any Mortgage File. Upon
discovery by either the Seller, the Servicer or the Purchaser of a breach of
any
of the foregoing representations and warranties, the party discovering such
breach shall give prompt written notice to the other relevant
parties.
Within
sixty (60) days after the earlier of either discovery by or notice to the
Seller of any breach of a representation or warranty which materially and
adversely affects the value of the Mortgage Loans or the interest of the
Purchaser therein (or which materially and adversely affects the value of the
applicable Mortgage Loan or the interest of the Purchaser therein in the case
of
a representation and warranty relating to a particular Mortgage Loan), the
Seller shall use its best efforts promptly to cure such breach in all material
respects and, if such breach cannot be cured, the Seller shall repurchase such
Mortgage Loan or Mortgage Loans at
-33-
the
Repurchase Price. Notwithstanding the above sentence, within 60 days
after the earlier of either discovery by, or notice to, the Seller of any breach
of the representations or warranties set forth in clauses (qq), (ss), (tt),
(uu), (vv), (ccc) or (ddd) of Subsection 7.01,
the Seller shall repurchase such Mortgage Loan at the Repurchase
Price. However, the Seller may, at its option and assuming that
Seller has a Qualified Substitute Mortgage Loan, rather than repurchase the
Mortgage Loan as provided above, remove such Mortgage Loan and substitute in
its
place a Qualified Substitute Mortgage Loan or Qualified Substitute Mortgage
Loans; provided,
however, that any such substitution shall be effected not later than
ninety (90) days after the related Closing Date. If the Seller
has no Qualified Substitute Mortgage Loan, it shall repurchase the deficient
Mortgage Loan. Any repurchase of a Mortgage Loan pursuant to the
foregoing provisions of this Subsection 7.03
shall occur on a date designated by the Purchaser, and acceptable to the Seller,
and shall be accomplished by the Seller remitting to the Servicer for deposit
the amount of the Repurchase Price in the Custodial Account for distribution
to
the Purchaser on the next scheduled Remittance Date.
At
the
time of repurchase of any deficient Mortgage Loan (or removal of any Deleted
Mortgage Loan), the Purchaser and the Seller shall arrange for the assignment
of
the repurchased Mortgage Loan (or Deleted Mortgage Loan) to the Seller or its
designee and the delivery to the Seller of any documents held by the Purchaser
relating to the repurchased Mortgage Loan in the manner required by this
Agreement with respect to the purchase and sale of such Mortgage Loan on the
related Closing Date. In the event the Repurchase Price is deposited
in the Custodial Account, the Seller shall, simultaneously with its remittance
to the Servicer of such Repurchase Price for deposit, give written notice to
the
Purchaser that such deposit has taken place. Upon such repurchase,
the related Mortgage Loan Schedule shall be amended to reflect the withdrawal
of
the repurchased Mortgage Loan from this Agreement.
As
to any
Deleted Mortgage Loan for which the Seller substitutes one or more Qualified
Substitute Mortgage Loans, the Seller shall effect such substitution by
delivering to the Purchaser for each Qualified Substitute Mortgage Loan the
Mortgage Note, the Mortgage, the Assignment of Mortgage and such other documents
and agreements as are required by Subsection
6.03. The Seller shall remit to the Servicer for deposit in
the Custodial Account the Monthly Payment less the Servicing Fee due on each
Qualified Substitute Mortgage Loan in the month following the date of such
substitution. Monthly Payments due with respect to Qualified
Substitute Mortgage Loans in the month of substitution will be retained by
the
Seller. For the month of substitution, distributions to the Purchaser
will include the Monthly Payment due on such Deleted Mortgage Loan in the month
of substitution, and the Seller shall thereafter be entitled to retain all
amounts subsequently received by the Seller in respect of such Deleted Mortgage
Loan. The Seller shall give written notice to the Purchaser that such
substitution has taken place and shall amend the related Mortgage Loan Schedule
to reflect the removal of such Deleted Mortgage Loan from the terms of this
Agreement and the substitution of the Qualified Substitute Mortgage
Loan. Upon such substitution, each 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, as of the date of substitution, the covenants, representations and
warranties set forth in Subsections 7.01
and 7.02.
For
any
month in which the Seller substitutes one or more Qualified Substitute Mortgage
Loans for one or more Deleted Mortgage Loans, the Seller will determine the
amount
-34-
(if
any)
by which the aggregate principal balance of all such Qualified Substitute
Mortgage Loans as of the date of substitution is less than the aggregate Stated
Principal Balance of all such Deleted Mortgage Loans (after application of
scheduled principal payments due in the month of substitution). The
amount of such shortfall shall be remitted to the Servicer by the Seller for
distribution by the Servicer in the month of substitution pursuant to Subsection 11.04. Accordingly,
on the date of such substitution, the Seller will remit to the Servicer from
its
own funds for deposit into the Custodial Account an amount equal to the amount
of such shortfall plus one month’s interest thereon at the Mortgage Loan
Remittance Rate.
In
addition to such repurchase or substitution obligation, the Seller shall
indemnify the Purchaser and its present and former directors, officers,
employees and agents, and hold such parties harmless against any losses,
damages, penalties, fines, forfeitures, legal fees and expenses and related
costs, judgments, and other costs and expenses resulting from any claim, demand,
defense or assertion based on or grounded upon, or resulting from, a breach
of
the Seller representations and warranties contained in this Agreement or any
Reconstitution Agreement. For purposes of the previous sentence,
“Purchaser” shall mean the Person then acting as the Purchaser under this
Agreement and any and all Persons who previously were “Purchasers” under this
Agreement.
It
is
understood and agreed that the obligations of the Seller set forth in this
Subsection 7.03
to cure, repurchase or substitute for a defective Mortgage Loan, together with
the rights and remedies of the Purchaser under Subsection 12.01
constitute the sole remedies of the Purchaser respecting a breach of the
representations and warranties set forth in Subsections 7.01
and 7.02.
Subsection
7.04 Repurchase
of Mortgage Loans
with Early Payment Defaults. If the related Mortgagor is
delinquent with respect to either of the Mortgage Loan’s first two Monthly
Payments either (i) after origination of such Mortgage Loan, or (ii) after
the
related Closing Date, the Seller, at the Purchaser’s option, shall repurchase
such Mortgage Loan from the Purchaser at a price equal to the Repurchase
Price. The Seller shall repurchase such delinquent Mortgage Loan
within thirty (30) days of such request.
Subsection
7.05 Premium
Recapture. With respect to any Mortgage Loan without
prepayment penalties that prepays in full on or prior to the related Closing
Date or during the first sixty (60) days following the related Closing Date,
the
Seller shall pay the Purchaser, within thirty (30) Business Days after such
prepayment in full or repurchase, an amount equal to the excess of the Purchase
Price Percentage for such Mortgage Loan over par, multiplied by the outstanding
principal balance of such Mortgage Loan as of the related Cut-off
Date.
Section
8. Closing. The
closing for the purchase and sale of each Mortgage Loan Package shall take
place
on the related Closing Date. At the Purchaser’s option, each closing
shall be either: by telephone, confirmed by letter or wire as the parties shall
agree, or conducted in person, at such place as the parties shall
agree. Each closing shall be subject to each of the following
conditions:
-35-
(a) all
of the representations and warranties of the Seller in this Agreement shall
be
true and correct as of the related Closing Date and no event shall have occurred
which, with notice or the passage of time, would constitute an Event of Default
under this Agreement;
(b) the
Purchaser’s attorneys shall have received in escrow, all Closing Documents as
specified in Section 9, in
such forms as are agreed upon and acceptable to the Purchaser, duly executed
by
all signatories as required pursuant to the terms hereof; and
(c) all
other terms and conditions of this Agreement shall have been complied
with.
Section
9. Closing
Documents. On the related Closing Date, the Seller shall
deliver to the Purchaser’s attorneys in escrow fully executed originals
of:
(a) this
Agreement (to be executed and delivered only for the initial Closing
Date);
(b) the
related Purchase Price and Terms Letter, executed in four (4)
counterparts;
(c) with
respect to the initial Closing Date, the Custodial Agreement, dated as of the
initial Cut-off Date;
(d) with
respect to the initial Closing Date, a Custodial Account Certification in the
form attached as Exhibit 4 hereto
or a Custodial Account Letter Agreement in the form attached as Exhibit 5
hereto;
(e) with
respect to the initial Closing Date, an Escrow Account Certification in the
form
attached as Exhibit 6 hereto
or an Escrow Account Letter Agreement in the form attached as Exhibit 7
hereto;
(f) the
related Mortgage Loan Schedule, segregated by Mortgage Loan Package, one copy
to
be attached hereto, one copy to be attached to the Custodian’s counterpart of
the Custodial Agreement, and one copy to be attached to the related Assignment
and Conveyance as the Mortgage Loan Schedule thereto;
(g) with
respect to the initial Closing Date, an Officer’s Certificate, in the form of
Exhibit 10
hereto with respect to the Seller, including all attachments thereto and with
respect to subsequent Closing Dates, an Officer’s Certificate upon request of
the Purchaser; and
(h) with
respect to the initial Closing Date, an Opinion of Counsel of the Seller (who
may be an employee of the Seller), generally in the form of Exhibit 11
hereto and with respect to subsequent Closing Dates, an Opinion of Counsel
of
the Seller upon request of the Purchaser;
(i) with
respect to the initial Closing Date, an Opinion of Counsel of the Custodian
(who
may be an employee of the Custodian), in the form of an exhibit to the Custodial
Agreement;
(j) a
Security Release Certification, in the form of Exhibit 12 or Exhibit
13, as
applicable, hereto executed by any person, as requested by the Purchaser, if
any
of the Mortgage
-36-
Loans
have at any time been subject to any security interest, pledge or hypothecation
for the benefit of such person;
(k) 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;
(l) with
respect to the initial Closing Date, the Underwriting Guidelines to be attached
hereto as Exhibit
8 and with respect to each subsequent Closing Date, the Underwriting
Guidelines to be attached to the related Assignment and Conveyance;
(m) Assignment
and Conveyance Agreement in the form of Exhibit 14 hereto,
including all exhibits thereto;
(n) a
Custodian’s Certification, as required under the Custodial Agreement, in the
form of Exhibit 2 to the
Custodial Agreement; and
(o) a
MERS Report reflecting the Purchaser as Investor, the Custodian as custodian
and
no Person as Interim Funder for each MERS Designated Mortgage Loan.
The
Seller shall bear the risk of loss of the closing documents until such time
as
they are received by the Purchaser or its attorneys.
Section
10. Costs. The
Purchaser shall pay any commissions due its salesmen and the legal fees and
expenses of its attorneys and custodial fees. All other costs and
expenses incurred in connection with the transfer and delivery of the Mortgage
including recording fees, fees for title policy endorsements and continuations,
fees for recording Assignments of Mortgage, and the Seller’s attorney’s fees,
shall be paid by the Seller.
Section
11. Administration
and Servicing
of the Mortgage Loans; Compliance
with Regulation
AB
Subsection
11.01 Servicer
to Act as Servicer;
Intent of the Parties; Reasonableness. The Servicer shall
service and administer the Mortgage Loans in accordance with this Agreement
and
Accepted Servicing Procedures and the terms of the Mortgage Notes and Mortgages,
and shall have full power and authority, acting alone or through sub-servicers
or agents, to do or cause to be done any and all things in connection with
such
servicing and administration which the Servicer may deem necessary or desirable
and consistent with the terms of this Agreement. The Servicer may
perform its servicing responsibilities through agents or independent
contractors, but shall not thereby be released from any of its responsibilities
hereunder.
Consistent
with the terms of this Agreement, the Servicer may waive, modify or vary any
term of any Mortgage Loan or consent to the postponement of strict compliance
with any such term or in any manner grant indulgence to any Mortgagor; provided, however, that
(unless the Mortgagor is in default with respect to the Mortgage Loan, or such
default is, in the judgment of the Servicer, imminent, and the Servicer has
the
consent of the Purchaser) the
-37-
Servicer
shall not permit any modification with respect to any Mortgage Loan which
materially and adversely affects the Mortgage Loan, including without
limitation, any modification that would defer or forgive the payment of any
principal or interest or any penalty or premium on the prepayment of principal,
change the outstanding principal amount (except for actual payments of
principal), make any future advances, extend the final maturity date or change
the Mortgage Interest Rate, as the case may be, with respect to such Mortgage
Loan. Without limiting the generality of the foregoing, the Servicer
in its own name or acting through sub-servicers or agents is hereby authorized
and empowered by the Purchaser when the Servicer believes it appropriate and
reasonable in its best judgment, to execute and deliver, on behalf of itself
and
the Purchaser, all instruments of satisfaction or cancellation, or of partial
or
full release, discharge and all other comparable instruments, with respect
to
the Mortgage Loans and the Mortgaged Properties and to institute foreclosure
proceedings or obtain a deed-in-lieu of foreclosure so as to convert the
ownership of such properties, and to hold or cause to be held title to such
properties, on behalf of the Purchaser pursuant to the provisions of Subsection 11.12. The
Servicer shall make all required Servicing Advances and shall service and
administer the Mortgage Loans in accordance with applicable state and federal
law and shall provide to the Mortgagors any reports required to be provided
to
them thereby. The Purchaser shall furnish to the Servicer any powers
of attorney and other documents reasonably necessary or appropriate to enable
the Servicer to carry out its servicing and administrative duties under this
Agreement.
The
Purchaser and the Servicer acknowledge and agree that the purpose of Subsections 11.19,
11.20
and 11.24 of this
Agreement are to facilitate compliance by the Purchaser with the provisions
of
Regulation AB and related rules and regulations of the
Commission. The Purchaser shall not exercise its right to request
delivery of information or other performance under these provisions other than
in good faith, or for purposes other than compliance with the Securities Act,
the Exchange Act and the rules and regulations of the Commission
thereunder. The Servicer acknowledges that interpretations of the
requirements of Regulation AB may change over time, whether due to interpretive
guidance provided by the Commission or its staff, consensus among participants
in the asset-backed securities markets, advice of counsel, or otherwise, and
agrees to comply with requests made by the Purchaser in good faith for delivery
of information under these provisions on the basis of evolving interpretations
of Regulation AB. In connection with any Securitization Transaction,
the Servicer shall cooperate fully with the Purchaser to deliver to the
Purchaser (including any of its assignees or designees), any and all statements,
reports, certifications, records and any other information necessary in the
good
faith determination of the Purchaser to permit the Purchaser to comply with
the
provisions of Regulation AB, together with such disclosures relating to the
Servicer, any Subservicer, any Third-Party Originator and the Mortgage Loans,
or
the servicing of the Mortgage Loans, reasonably believed by the Purchaser to
be
necessary in order to effect such compliance.
Subsection
11.02 Liquidation
of Mortgage
Loans. If 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 Servicer shall take such
action as it shall deem to be in the best interest of the
Purchaser. If any payment due under any Mortgage Loan remains
delinquent for a period of one hundred twenty (120) days or more, the
Servicer shall commence foreclosure proceedings in accordance with the
guidelines set forth by Fannie
-38-
Mae
or
Xxxxxxx Mac. In such event, the Servicer shall from its own funds
make all necessary and proper Servicing Advances.
Subsection
11.03 Collection
of Mortgage Loan
Payments. Continuously from the date hereof until the principal and
interest on all Mortgage Loans are paid in full, the Servicer will proceed
diligently, in accordance with this Agreement, to collect all payments due
under
each of the Mortgage Loans when the same shall become due and
payable. Further, the Servicer will in accordance with Accepted
Servicing Procedures ascertain and estimate taxes, assessments, fire and hazard
insurance premiums, and all other charges that, as provided in any Mortgage,
will become due and payable to the end that the installments payable by the
Mortgagors will be sufficient to pay such charges as and when they become due
and payable.
Subsection
11.04 Establishment
of Custodial
Account; Deposits in Custodial Account. The Servicer shall
segregate and hold all funds collected and received pursuant to each Mortgage
Loan separate and apart from any of its own funds and general assets and shall
establish and maintain one or more Custodial Accounts (collectively, the “Custodial Account”),
titled “GreenPoint Mortgage Funding, Inc., in trust for Xxxxxx Xxxxxxx Mortgage
Capital Inc. as Purchaser of Mortgage Loans and various
Mortgagors.” Such Custodial Account shall be established with a
commercial bank, a savings bank or a savings and loan association (which may
be
a depository affiliate of the Servicer) which meets the guidelines set forth
by
Xxxxxx Mae or Xxxxxxx Mac as an eligible depository institution for custodial
accounts. In any case, the Custodial Account shall be insured by the
FDIC in a manner which shall provide maximum available insurance thereunder
and
which may be drawn on by the Servicer. The creation of any Custodial
Account shall be evidenced by (i) a certification in the form of Exhibit 4
hereto, in the case of an account established with a depository affiliate of
the
Servicer, or (ii) a letter agreement in the form of Exhibit 5
hereto, in the case of an account held by a depository other than an affiliate
of the Servicer. In either case, a copy of such certification or
letter agreement shall be furnished to the Purchaser upon request.
The
Servicer shall deposit in the Custodial Account on a daily basis on the Business
Day following receipt thereof, and retain therein the following payments and
collections received or made by it subsequent to the related Cut-off Date (other
than in respect of principal and interest on the Mortgage Loans due on or before
the related Cut-off Date):
(a) all
payments on account of principal, including Principal Prepayments, on the
Mortgage Loans;
(b) all
payments on account of interest on the Mortgage Loans adjusted to the Mortgage
Loan Remittance Rate;
(c) all
Liquidation Proceeds;
(d) all
proceeds received by the Servicer under any title insurance policy, hazard
insurance policy, or other insurance policy other than proceeds to be held
in
the Escrow Account and applied to the restoration or repair of the Mortgaged
Property or released to the Mortgagor in accordance with Accepted Servicing
Procedures;
-39-
(e) all
awards or settlements in respect of condemnation proceedings or eminent domain
affecting any Mortgaged Property which are not released to the Mortgagor in
accordance with Accepted Servicing Procedures;
(f) any
amount required to be deposited in the Custodial Account pursuant to
Subsections 11.14, 11.16 and 11.18;
(g) any
amount required to be deposited by the Servicer in connection with any REO
Property pursuant to Subsection 11.12;
(h) any
amounts payable in connection with the repurchase of any Mortgage Loan pursuant
to Subsection 7.03, and all amounts required to be deposited by the
Servicer in connection with shortfalls in principal amount of Qualified
Substitute Mortgage Loans pursuant to Subsection 7.03; and
(i) with
respect to each Principal Prepayment in full, an amount (to be paid by the
Servicer out of its own funds) which, 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 Mortgage Loan Remittance Rate; provided, however,
that the Servicer’s aggregate obligations under this paragraph for any month
shall be limited to the total amount of Servicing Fees actually received with
respect to the Mortgage Loans by the Servicer during such month.
The
foregoing requirements for deposit in the Custodial Account shall be exclusive,
it being understood and agreed that, without limiting the generality of the
foregoing, payments in the nature of late payment charges, assumption fees
and
other ancillary fees need not be deposited by the Servicer in the Custodial
Account.
The
Servicer may invest the funds in the Custodial Account in Eligible Investments
designated in the name of the Servicer for the benefit of the Purchaser, which
shall mature not later than the Business Day next preceding the Remittance
Date
next following the date of such investment (except that (A) any investment
in the institution with which the Custodial Account is maintained may mature
on
such Remittance Date and (B) any other investment may mature on such
Remittance Date if the Servicer shall advance funds on such Remittance Date,
pending receipt thereof to the extent necessary to make distributions to the
Owner) and shall not be sold or disposed of prior to
maturity. Notwithstanding anything to the contrary herein and above,
all income and gain realized from any such investment shall be for the benefit
of the Servicer and shall be subject to withdrawal by the
Servicer. The amount of any losses incurred in respect of any such
investments shall be deposited in the Custodial Account by the Servicer out
of
its own funds immediately as realized.
Subsection
11.05 Withdrawals
From the
Custodial Account. The Servicer shall, from time to time,
withdraw funds from the Custodial Account for the following
purposes:
(a) to
make payments to the Purchaser in the amounts and in the manner provided for
in
Subsection 11.14;
-40-
(b) to
reimburse itself for P&I Advances, the Servicer’s right to reimburse itself
pursuant to this subclause (b) with respect to any Mortgage Loan being
limited to related Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds, REO Disposition Proceeds and such other amounts as may be collected
by
the Servicer from the Mortgagor or otherwise relating to the Mortgage Loan,
it
being understood that, in the case of any such reimbursement, the Servicer’s
right thereto shall be prior to the rights of the Purchaser, except that, where
the Seller is required to repurchase a Mortgage Loan, pursuant to
Subsection 7.03, the Servicer’s right to such reimbursement shall be
subsequent to the payment to the Purchaser of the Repurchase Price pursuant
to
Subsection 7.03, and all other amounts required to be paid to the Purchaser
with respect to such Mortgage Loan;
(c) to
reimburse itself for any unpaid Servicing Fees and for unreimbursed Servicing
Advances, the Servicer’s right to reimburse itself pursuant to this
subclause (c) with respect to any Mortgage Loan being limited to related
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds, REO Disposition
Proceeds and such other amounts as may be collected by the Servicer from the
Mortgagor or otherwise relating to the Mortgage Loan, it being understood that,
in the case of any such reimbursement, the Servicer’s right thereto shall be
prior to the rights of the Purchaser unless the Seller is required to repurchase
a Mortgage Loan pursuant to Subsection 7.03, in which case the Servicer’s
right to such reimbursement shall be subsequent to the payment to the Purchaser
of the Repurchase Price pursuant to Subsection 7.03 and all other amounts
required to be paid to the Purchaser with respect to such Mortgage
Loan;
(d) to
reimburse itself for unreimbursed Servicing Advances and for xxxxxxxxxxxx
X&X Advances, in accordance with Subsection 11.16, to the extent that
such amounts are nonrecoverable by the Servicer pursuant to subclause (b)
or (c) above, provided that the Mortgage Loan for which such advances were
made
is not required to be repurchased by the Seller pursuant to
Subsection 7.03;
(e) to
reimburse itself for expenses incurred by and reimbursable to it pursuant to
Subsection 12.01;
(f) to
withdraw amounts to make P&I Advances in accordance with
Subsection 11.16;
(g) to
pay to itself any interest earned or any investment earnings on funds deposited
in the Custodial Account;
(h) to
withdraw any amounts inadvertently deposited in the Custodial Account;
and
(i) to
clear and terminate the Custodial Account upon the termination of this
Agreement.
Subsection
11.06 Establishment
of Escrow
Account; Deposits in Escrow Account. The Servicer shall segregate
and hold all funds collected and received pursuant to each Mortgage Loan which
constitute Escrow Payments separate and apart from any of its own funds and
general assets and shall establish and maintain one or more Escrow Accounts
(collectively, the “Escrow Account”), titled “GreenPoint Mortgage Funding, Inc.,
in trust for Xxxxxx Xxxxxxx Mortgage Capital Inc. as Purchaser of Mortgage
Loans
and various Mortgagors.” The Escrow Account shall be established with
a commercial bank, a savings bank or a savings and loan
-41-
association
(which may be a depository affiliate of Servicer), which meets the guidelines
set forth by Xxxxxx Mae or Xxxxxxx Mac as an eligible institution for escrow
accounts. In any case, the Escrow Account shall be insured by the
FDIC in a manner which shall provide maximum available insurance thereunder
and
which may be drawn on by the Servicer. The creation of any Escrow
Account shall be evidenced by a certification in the form of Exhibit 6
hereto, in the case of an account established with a depository affiliate of
the
Servicer, or by a letter agreement in the form of Exhibit 7
hereto, in the case of an account held by a depository. In either
case, a copy of such certification or letter agreement shall be furnished to
the
Purchaser upon request.
The
Servicer shall deposit in the Escrow Account on a daily basis, and retain
therein: (a) all Escrow Payments collected on account of the
Mortgage Loans, for the purpose of effecting timely payment of any such items
as
required under the terms of this Agreement, and (b) all amounts
representing proceeds of any hazard insurance policy which are to be applied
to
the restoration or repair of any Mortgaged Property. The Servicer
shall make withdrawals therefrom only in accordance with Subsection 11.07. As
part of its servicing duties, the Servicer shall pay to the Mortgagors interest
on funds in the Escrow Account, to the extent required by law.
Subsection
11.07 Withdrawals
From Escrow
Account. Withdrawals from the Escrow Account shall be made by
the Servicer only (a) to effect timely payments of ground rents, taxes,
assessments, fire and hazard insurance premiums or other items constituting
Escrow Payments for the related Mortgage, (b) to reimburse the Servicer for
any Servicing Advance made by Servicer pursuant to Subsection 11.08
with respect to a related Mortgage Loan, (c) to refund to any Mortgagor any
funds found to be in excess of the amounts required under the terms of the
related Mortgage Loan, (d) for transfer to the Custodial Account upon
default of a Mortgagor or in accordance with the terms of the related Mortgage
Loan and if permitted by applicable law, (e) for application to restore or
repair of the Mortgaged Property, (f) to pay to the Mortgagor, to the
extent required by law, any interest paid on the funds deposited in the Escrow
Account, (g) to pay to itself any interest earned on funds deposited in the
Escrow Account (and not required to be paid to the Mortgagor), (h) to the
extent permitted under the terms of the related Mortgage Note and applicable
law, to pay late fees with respect to any Monthly Payment which is received
after the applicable grace period, (i) to withdraw suspense payments that
are deposited into the Escrow Account, (j) to withdraw any amounts
inadvertently deposited in the Escrow Account or (k) to clear and terminate
the Escrow Account upon the termination of this Agreement.
Subsection
11.08 Payment of
Taxes, Insurance
and Other Charges; Collections Thereunder. With respect to
each Mortgage Loan, the Servicer shall maintain accurate records reflecting
the
status of ground rents, taxes, assessments and other charges which are or may
become a lien upon the Mortgaged Property and the status of fire and hazard
insurance coverage and shall obtain, from time to time, all bills for the
payment of such charges (including renewal premiums) and shall effect payment
thereof prior to the applicable penalty or termination date and at a time
appropriate for securing maximum discounts allowable, employing for such purpose
deposits of the Mortgagor in the Escrow Account which shall have been estimated
and accumulated by the Servicer in amounts sufficient for such purposes, as
allowed under the terms of the Mortgage. If a Mortgage does not
provide for Escrow Payments, the Servicer shall determine that any such payments
are made by the Mortgagor. The Servicer assumes full responsibility
for the timely payment of all such bills and shall effect timely payments of
all
such
-42-
bills
irrespective of each Mortgagor’s faithful performance in the payment of same or
the making of the Escrow Payments and shall make Servicing Advances to effect
such payments, subject to its ability to recover such Servicing Advances
pursuant to Subsection 11.07(b). With
respect to each Mortgage Loan, on or before January 31st
of each year
during the term of this Agreement, beginning January 31, 2006, the Servicer
shall ensure that all taxes due during the prior calendar year have been paid
on
the related Mortgaged Property.
With
respect to each Mortgage Loan identified on the Mortgage Loan Schedule as an
LPMI Loan, Servicer shall maintain in full force and effect any LPMI Policy,
and
from time to time, withdraw the premium with respect to such Mortgage Loans
from
the Custodial Account in order to pay the premium thereon on a timely basis.
In
the event that the interest payments made with respect to the Mortgage Loan
are
less than the premium with respect to the LPMI Policy, Servicer shall advance
from its own funds the amount of any such shortfall in the LPMI Policy premiums,
in payment of such premium. Any such advance shall be a Servicing
Advance subject to reimbursement. In the event that such LPMI Policy
shall be terminated, Servicer shall obtain from another insurer acceptable
under
the Underwriting Guidelines, a comparable replacement policy, with a total
coverage equal to the remaining coverage of such terminated LPMI Policy, at
substantially the same fee level. If the insurer shall cease to be an
insurer acceptable under the Underwriting Guidelines, Servicer shall determine
whether recoveries under the LPMI Policy are jeopardized for reasons related
to
the financial condition of such insurer, it being understood that Servicer
shall
in no event have any responsibility or liability for any failure to recover
under the LPMI Policy for such reason. If Servicer determines that
recoveries are so jeopardized, it shall notify the Purchaser and the Mortgagor,
if required, and obtain from another insurer acceptable under the Underwriting
Guidelines a replacement insurance policy. Servicer shall not take
any action which would result in noncoverage under any applicable LPMI Policy
of
any loss which, but for the actions of Servicer would have been covered
thereunder. In connection with any assumption or substitution agreement entered
into or to be entered into Servicer shall promptly notify the insurer under
the
related LPMI Policy, if any, of such assumption or substitution of liability
in
accordance with the terms of such LPMI Policy and shall take all actions which
may be required by such insurer as a condition to the continuation of coverage
under such LPMI Policy. If such LPMI Policy is terminated as a result
of such assumption or substitution of liability, Servicer shall obtain a
replacement LPMI Policy as provided above.
Purchaser,
in its sole discretion, at any time, may (i) either obtain an additional LPMI
Policy on any Mortgage Loan which already has an LPMI Policy in place, or (ii)
obtain a LPMI Policy for any Mortgage Loan which does not already have a LPMI
Policy in place. In any event, Servicer agrees to administer such
LPMI Policies in accordance with the Agreement or any Reconstitution
Agreement.
In
connection with its activities as servicer, Servicer agrees to prepare and
present, on behalf of itself and the Purchaser, claims to the insurer under
any
PMI Policy or LPMI Policy in a timely fashion in accordance with the terms
of
such PMI Policy and LPMI Policy and, in this regard, to take such action as
shall be necessary to permit recovery under any PMI Policy or LPMI Policy
respecting a defaulted Mortgage Loan. Any amounts collected by
Servicer under any PMI Policy shall be deposited in the Escrow
Account.
-43-
Subsection
11.09 Transfer
of
Accounts. The Servicer may transfer the Custodial Account or
the Escrow Account to a different depository institution. Such
transfer shall be made only upon obtaining the prior written consent of the
Purchaser; such consent not to be unreasonably withheld.
Subsection
11.10 Maintenance
of Hazard
Insurance. The Servicer shall cause to be maintained for each
Mortgage Loan fire and hazard insurance with extended coverage customary in
the
area where the Mortgaged Property is located that conforms to the requirements
of Xxxxxx Xxx or Xxxxxxx Mac. If the Mortgaged Property is in an area
identified in the Federal Register by the Federal Emergency Management Agency
as
having special flood hazards (and such flood insurance has been made available)
the Servicer will cause to be maintained a flood insurance policy meeting the
requirements of Xxxxxx Mae or Xxxxxxx Mac. The Servicer shall also
maintain on REO Property fire and hazard insurance with extended coverage in
an
amount which meets the requirements of Xxxxxx Mae or Xxxxxxx Mac. Any
amounts collected by the Servicer under any such policies (other than amounts
to
be deposited in the Escrow Account and applied to the restoration or repair
of
the property subject to the related Mortgage or property acquired in liquidation
of the Mortgage Loan, or to be released to the Mortgagor in accordance with
Accepted Servicing Procedures) shall be deposited in the Custodial Account,
subject to withdrawal pursuant to Subsection 11.05. It
is understood and agreed that no earthquake or other additional insurance need
be required by the Servicer of any Mortgagor or maintained on REO Property
other
than pursuant to such applicable laws and regulations as shall at any time
be in
force and as shall require such additional insurance. All policies
required hereunder shall be endorsed with standard mortgagee clauses with loss
payable to Servicer, and shall provide for at least thirty (30) days prior
written notice of any cancellation, reduction in amount or material change
in
coverage to the Servicer. The Servicer shall not interfere with the
Mortgagor’s freedom of choice in selecting either its insurance carrier or
agent; provided, however, that the Servicer shall not accept any such insurance
policies that do not conform to the requirements of Xxxxxx Mae or Xxxxxxx
Mac.
Subsection
11.11 Fidelity
Bond; Errors and
Omissions Insurance. The Servicer shall maintain, at its own
expense, a blanket Fidelity Bond and an errors and omissions insurance policy,
with broad coverage on all officers, employees or other persons acting in any
capacity requiring such persons to handle funds, money, documents or papers
relating to the Mortgage Loans. These policies shall insure the
Servicer against losses resulting from dishonest or fraudulent acts committed
by
the Servicer’s personnel, any employees of outside firms that provide data
processing services for the Servicer, and temporary contract employees or
student interns. The Fidelity Bond shall also protect and insure the
Servicer 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 Subsection 11.11
requiring such Fidelity Bond and errors and omissions insurance shall diminish
or relieve the Servicer of its duties and obligations as set forth in this
Agreement. The minimum coverage under any such Fidelity Bond and
insurance policy shall be at least equal to the corresponding amounts required
by Xxxxxx Mae in the Xxxxxx Xxx Servicing Guide or by Xxxxxxx Mac in the Xxxxxxx
Xxx Xxxxxxx’ & Servicers’ Guide, as amended or restated from time to time,
or in an amount as may be permitted to the Servicer by express waiver of Xxxxxx
Mae or Xxxxxxx Mac.
-44-
Subsection
11.12 Title, Management
and
Disposition of REO Property. If 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 FV-I Inc., a Delaware
corporation, in either case as nominee, for the benefit of the Purchaser of
record on the date of acquisition of title (the “Owner”). If the
Servicer 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 Servicer, at
the
expense of the Purchaser, from an attorney duly licensed to practice law in
the
state where the REO Property is located. The Person or Persons
holding such title other than the Owner shall acknowledge in writing that such
title is being held as nominee for the Owner.
The
Servicer shall cause to be deposited on a daily basis in the Custodial Account
all revenues received with respect to the conservation and disposition of the
related REO Property and shall withdraw therefrom funds necessary for the proper
operation, management and maintenance of the REO Property, including the cost
of
maintaining any hazard insurance pursuant to Subsection 11.10
and the fees of any managing agent acting on behalf of the
Servicer. Any disbursement in excess of $5,000 shall be made only
with the written approval of the Purchaser. The Servicer shall make
distributions as required on each Remittance Date to the Purchaser of the net
cash flow from the REO Property (which shall equal the revenues from such REO
Property net of the expenses described above and of any reserves reasonably
required from time to time to be maintained to satisfy anticipated liabilities
for such expenses).
The
disposition of REO Property shall be carried out by the Servicer in accordance
with the provisions of this Agreement and shall be made at such price, and
upon
such terms and conditions, as the Servicer deems to be in the best interests
of
the Owner. Upon the request of the Owner, and at the Owner’s expense,
the Servicer shall cause an appraisal of the REO Property to be performed for
the Owner. The proceeds of sale of the REO Property shall be promptly
deposited in the Custodial Account and, as soon as practical thereafter, the
expenses of such sale shall be paid, the Servicer shall reimburse itself for
any
related unreimbursed Servicing Advances, unpaid Servicing Fees, unreimbursed
advances made pursuant to Subsection 11.16
and any appraisal performed pursuant to this paragraph and the net cash proceeds
of such sale remaining in the Custodial Account shall be distributed to the
Purchaser.
The
Servicer shall either itself or through an agent selected by the Servicer,
manage, conserve, protect and operate the REO Property in the same manner that
it manages, conserves, protects and operates other foreclosed property for
its
own account, and in the same manner that similar property in the same locality
as the REO Property is managed. The Servicer shall attempt to sell
the same (and may temporarily rent the same) on such terms and conditions as
the
Servicer deems to be in the best interest of the Owner.
If
a
REMIC election is or is to be made with respect to the arrangement under which
the Mortgage Loans and any REO property are held, the Servicer shall manage,
conserve, protect and operate each REO Property in a manner which does not
cause
such REO Property to fail to qualify as “foreclosure property” within the
meaning of Section 860G(a)(8) of the Code or result in the receipt by such
REMIC
of any “income from non-permitted assets” within the
-45-
meaning
of Section 860F(a)(2)(B) of the Code or any “net income from foreclosure
property” within the meaning of Section 860G(c)(2) of the Code.
Upon
request, with respect to any REO Property, the Servicer shall furnish to the
Owner a statement covering the Servicer’s efforts in connection with the sale of
that REO Property and any rental of the REO Property incidental to the sale
thereof for the previous month (together with an operating
statement).
Subsection
11.13 Servicing
Compensation. As compensation for its services hereunder, the
Servicer shall be entitled to retain the Servicing Fee from interest payments
on
the Mortgage Loans. Additional servicing compensation in the form of
assumption fees, late payment charges and other ancillary income shall be
retained by the Servicer to the extent not required to be deposited in the
Custodial Account. The Servicer shall be required to pay all expenses
incurred by it in connection with its servicing activities hereunder and shall
not be entitled to reimbursement therefor except as specifically provided for
herein.
Subsection
11.14 Distributions. On
each Remittance Date the Servicer shall remit by wire transfer of immediately
available funds to the account designated in writing by the Purchaser of record
on the preceding Record Date (a) all Monthly Payments due in the Due Period
relating to such Remittance Date, whether received or not, plus (b) all
amounts, if any, which the Servicer is obligated to distribute pursuant to
Subsection 11.16,
plus (c) any amounts attributable to Principal Prepayments received in the
calendar month preceding the month in which the Remittance Date occurs, together
with any additional interest required to be deposited in the Custodial Account
in connection with such Principal Prepayments in accordance with Subsection 11.04(i),
minus (d) all amounts that may be withdrawn from the Custodial Account
pursuant to Subsections 11.05(b)
through (e).
With
respect to any remittance received by the Purchaser after the Business Day
on
which such payment was due, the Servicer shall pay to the Purchaser interest
on
any such late payment at an annual rate equal to the Prime Rate, adjusted as
of
the date of each change, plus three percent (3%), but in no event greater than
the maximum amount permitted by applicable law. Such interest shall
be paid by the Servicer to the Purchaser on the date such late payment is made
and shall cover the period commencing with the Business Day on which such
payment was due and ending with the Business Day immediately preceding the
Business Day on which such payment is made, both inclusive. The
payment by the Servicer of any such interest shall not be deemed an extension
of
time for payment or a waiver of any Event of Default by the
Servicer.
Subsection
11.15 Statements
to the
Purchaser. Not later than the 10th
calendar day of
each month (or, if such 10th
day is not a
Business Day, the following Business Day), the Servicer shall forward to the
Purchaser in hard copy and electronic format mutually acceptable to the
Purchaser and the Seller, a statement, substantially in the form of Exhibit 9 and
certified by a Servicing Officer, setting forth (a) the amount of the
distribution made on such Remittance Date which is allocable to principal and
allocable to interest; (b) the amount of servicing compensation received by
the Servicer during the prior calendar month; (c) the aggregate Stated
Principal Balance and the aggregate unpaid principal balance of the Mortgage
Loans as of the last day of the preceding month; and (d) the paid through
date for each Mortgage Loan. Such statement shall also include
information regarding delinquencies on Mortgage Loans,
indicating
-46-
the
number and aggregate principal amount of Mortgage Loans which are either
one (1), two (2) or three (3) or more months delinquent and the
book value of any REO Property. The Servicer shall submit to the
Purchaser monthly a liquidation report with respect to each Mortgaged Property
sold in a foreclosure sale as of the related Record Date and not previously
reported. Such liquidation report shall be incorporated into the
remittance report delivered to Purchaser in the form of Exhibit 9
hereto.
The
Servicer shall furnish to the Purchaser an individual loan accounting report
in
hard copy and electronic format mutually acceptable to the Purchaser and the
Seller, as of the last Business Day of each month, in the Purchaser’s assigned
loan number order (provided that such loan numbers previously have been provided
in writing by the Purchaser to the Servicer) to document Mortgage Loan payment
activity on an individual Mortgage Loan basis. With respect to each
month, the corresponding individual loan accounting report shall be received
by
the Purchaser no later than the fifth Business Day of the following month,
which
report shall contain the following:
(i) with
respect to each Monthly Payment, the amount of such remittance allocable to
principal (including a separate breakdown of any Principal Prepayment, including
the date of such prepayment, along with a detailed report of interest on
principal prepayment amounts remitted in accordance with Subsection 11.14);
(ii) with
respect to each Monthly Payment, the amount of such remittance allocable to
interest; and
(iii) the
next actual due date for each Mortgage Loan.
Within
a
reasonable period of time after the end of each calendar year, the Servicer
will
furnish a report to each Person that was a Purchaser at any time during such
calendar year. Such report shall state the aggregate of amounts
distributed to the Purchaser for such calendar year. Such obligation
of the Servicer shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by the Servicer pursuant
to any requirements of the Code.
The
Servicer shall prepare and file any and all tax returns, information statements
or other filings required to be delivered to any governmental taxing authority
or to the Purchaser pursuant to any applicable law with respect to the Mortgage
Loans and the transactions contemplated hereby. In addition, the
Servicer shall provide the Purchaser with such information concerning the
Mortgage Loans as is necessary for such Purchaser to prepare federal income
tax
returns as the Purchaser may reasonably request from time to time.
Subsection
11.16 Advances
by the
Servicer. On the Business Day immediately preceding each
Remittance Date, the Servicer shall either (a) deposit in the Custodial
Account from its own funds an amount equal to the aggregate amount of all
Monthly Payments (with interest adjusted to the Mortgage Loan Remittance Rate)
which were due on the Mortgage Loans during the applicable Due Period and which
were delinquent at the close of business on the immediately preceding
Determination Date (each such advance, a “P&I Advance”),
(b) cause to be made an appropriate entry in the records of the Custodial
Account that amounts held for
-47-
future
distribution have been, as permitted by this Subsection 11.16,
used by the Servicer in discharge of any such P&I Advance or (c) make
P&I Advances in the form of any combination of (a) or (b) aggregating the
total amount of P&I Advances to be made. Any amounts held for
future distribution and so used shall be replaced by the Servicer by deposit
in
the Custodial Account on or before any future Remittance Date if funds in the
Custodial Account on such Remittance Date shall be less than payments to the
Purchaser required to be made on such Remittance Date. The Servicer’s
obligation to make P&I Advances as to any Mortgage Loan will continue
through the last Monthly Payment due prior to the payment in full of a Mortgage
Loan, or through the last Remittance Date prior to the Remittance Date for
the
distribution of all other payments or recoveries (including proceeds under
any
title, hazard or other insurance policy, or condemnation awards) with respect
to
a Mortgage Loan; provided,
however, that such obligation shall cease (i) for any Mortgage Loan
and on any Remittance Date that the distribution of all Liquidation Proceeds
and
other payments or recoveries (including Insurance Proceeds and Condemnation
Proceeds) occurs with respect to such Mortgage Loan or (ii) if the
Servicer, in its good faith judgment, determines that P&I Advances would not
be recoverable pursuant to Subsection 11.05(d). The
determination by the Servicer that a P&I Advance, if made, would be
nonrecoverable, shall be evidenced by an Officer’s Certificate of the Servicer,
delivered to the Purchaser, which details the reasons for such
determination.
Subsection
11.17 Assumption
Agreements. The Servicer will use its best efforts to enforce
any “due-on-sale” provision contained in any Mortgage or Mortgage Note, provided
that the Servicer shall permit such assumption if so required in accordance
with
the terms of the Mortgage or the Mortgage Note. When the Mortgaged
Property has been conveyed by the Mortgagor, the Servicer 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
Servicer will not exercise such rights if prohibited by law from doing
so. In connection with any such assumption, the outstanding principal
amount, the Monthly Payment or the Mortgage Interest Rate of the related
Mortgage Note shall not be changed, and the term of the Mortgage Loan will
not
be increased or decreased. If an assumption is allowed pursuant to
this Subsection 11.17,
the Servicer 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.
Subsection
11.18 Satisfaction
of Mortgages
and Release of Mortgage Files. Upon the payment in full of any
Mortgage Loan, or the receipt by the Servicer of a notification that payment
in
full will be escrowed in a manner customary for such purposes, the Servicer
will
obtain the portion of the Mortgage File that is in the possession of the
Purchaser or its designee, prepare and process any required satisfaction or
release of the Mortgage and notify the Purchaser in accordance with the
provisions of this Agreement. The Purchaser agrees to deliver to the
Servicer the original Mortgage Note for any Mortgage Loan not later than
three (3) Business Days following its receipt of a notice from the Servicer
that such a payment in full has been received or that a notification has been
received that such a payment in full shall be made. Such Mortgage
Note shall be held by the Servicer, in trust, for the purpose of canceling
such
Mortgage Note and delivering the cancelled Mortgage Note to the Mortgagor in
a
timely manner as and to the extent provided under applicable state
law. If the Mortgage has been recorded in the name
of
-48-
MERS
or
its designee, the Servicer shall take all necessary action to effect the release
of the Mortgage Loan on the records of MERS.
If
the
Servicer grants a satisfaction or release of a Mortgage without having obtained
payment in full of the indebtedness secured by the Mortgage or should the
Servicer otherwise prejudice any right the Purchaser may have under the mortgage
instruments, the Servicer, upon written demand of the Purchaser, shall remit
to
the Purchaser the Stated Principal Balance of the related Mortgage Loan by
deposit thereof in the Custodial Account. The Fidelity Bond shall
insure the Servicer against any loss it may sustain with respect to any Mortgage
Loan not satisfied in accordance with the procedures set forth
herein.
Subsection
11.19 Information
to Be Provided
by the Servicer in Compliance with Regulation AB
In
connection with any Securitization Transaction the Servicer shall (i) within
five (5) Business Days following request by the Purchaser, provide to the
Purchaser (or, as applicable, cause each Third-Party Originator and each
Subservicer to provide), in writing and in form and substance reasonably
satisfactory to the Purchaser, the information and materials specified in
paragraphs (a), (b), (c) and (f) of this Section, and (ii) as promptly as
practicable following notice to or discovery by the Servicer, provide to the
Purchaser (in writing and in form and substance reasonably satisfactory to
the
Purchaser) the information specified in paragraph (d) of this
Section.
(a) If
so requested by the Purchaser, the Servicer shall provide such information
regarding (i) the Servicer, as originator of the Mortgage Loans (including
as an
acquirer of Mortgage Loans from a Qualified Correspondent), or (ii) each
Third-Party Originator, and (iii) as applicable, each Subservicer, as is
requested for the purpose of compliance with Items 1103(a)(1), 1105, 1110,
1117
and 1119 of Regulation AB. Such information shall include, at a
minimum:
(A) the
originator’s form of organization;
(B) a
description of the originator’s origination program and how long the originator
has been engaged in originating residential mortgage loans, which description
shall include a discussion of the originator’s experience in originating
mortgage loans of a similar type as the Mortgage Loans; information regarding
the size and composition of the originator’s origination portfolio; and
information that may be material, in the good faith judgment of the Purchaser,
to an analysis of the performance of the Mortgage Loans, including the
originators’ credit-granting or underwriting criteria for mortgage loans of
similar type(s) as the Mortgage Loans and such other information as the
Purchaser may reasonably request for the purpose of compliance with Item
1110(b)(2) of Regulation AB;
(C) a
description of any material legal or governmental proceedings pending (or known
to be contemplated) against the Servicer, each Third-Party Originator and each
Subservicer; and
-49-
(D) a
description of any affiliation or relationship between the Servicer, each
Third-Party Originator, each Subservicer and any of the following parties to
a
Securitization Transaction, as such parties are identified to the Servicer
by
the Purchaser in writing in advance of such Securitization
Transaction:
(1) the
sponsor;
(2) the
depositor;
(3) the
issuing entity;
(4) any
servicer;
(5) any
trustee;
(6) any
originator;
(7) any
significant obligor;
(8) any
enhancement or support provider; and
(9) any
other material transaction party.
(b) If
so requested by the Purchaser, the Servicer shall provide (or, as applicable,
cause each Third-Party Originator to provide) Static Pool Information with
respect to the mortgage loans (of a similar type as the Mortgage Loans, as
reasonably identified by the Purchaser as provided below) originated by (i)
the
Servicer, if the Servicer is an originator of Mortgage Loans (including as
an
acquirer of Mortgage Loans from a Qualified Correspondent), and/or (ii) each
Third-Party Originator. Such Static Pool Information shall be
prepared by the Servicer (or Third-Party Originator) on the basis of its
reasonable, good faith interpretation of the requirements of Item 1105(a)(1)-(3)
of Regulation AB. To the extent that there is reasonably available to
the Servicer (or Third-Party Originator) Static Pool Information with respect
to
more than one mortgage loan type, the Purchaser shall be entitled to specify
whether some or all of such information shall be provided pursuant to this
paragraph. The content of such Static Pool Information may be in the
form customarily provided by the Servicer, and need not be customized for the
Purchaser. Such Static Pool Information for each vintage origination
year or prior securitized pool, as applicable, shall be presented in increments
no less frequently than quarterly over the life of the mortgage loans included
in the vintage origination year or prior securitized pool. The most
recent periodic increment must be as of a date no later than 135 days prior
to
the date of the prospectus or other offering document in which the Static Pool
Information is to be included or incorporated by reference. The
Static Pool Information shall be provided in an electronic format that provides
a permanent record of the information provided, such as a portable document
format (pdf) file, or other such electronic format reasonably required by the
Purchaser.
Promptly
following notice or discovery of a material error in Static Pool Information
provided pursuant to the immediately preceding paragraph (including an omission
to include therein information required to be provided pursuant to such
paragraph), the Servicer shall provide corrected Static Pool Information to
the
Purchaser or any Depositor, as applicable, in the same format in which Static
Pool Information was previously provided to such party by the
Servicer.
If
so
requested by the Purchaser, the Servicer shall provide (or, as applicable,
cause
each Third-Party Originator to provide), at the expense of the requesting party
(to the extent of any
-50-
additional
incremental expense associated with delivery pursuant to this Agreement), such
agreed-upon procedures letters of certified public accountants reasonably
acceptable to the Purchaser, pertaining to Static Pool Information relating
to
prior securitized pools for securitizations closed on or after January 1, 2006
or, in the case of Static Pool Information with respect to the Servicer’s or
Third-Party Originator’s originations or purchases, to calendar months
commencing January 1, 2006, as the Purchaser shall reasonably
request. Such statements and letters shall be addressed to and be for
the benefit of such parties as the Purchaser shall designate, which may include,
by way of example, any Sponsor and any broker dealer acting as underwriter,
placement agent or initial purchaser with respect to a Securitization
Transaction. Any such statement or letter may take the form of a
standard, generally applicable document accompanied by a reliance letter
authorizing reliance by the addressees designated by the Purchaser.
(c) If
so requested by the Purchaser, the Servicer shall provide such information
regarding the Servicer, as servicer of the Mortgage Loans, and each Subservicer
(each of the Servicer and each Subservicer, for purposes of this paragraph,
a
“Servicer”), as is requested for the purpose of compliance with Item 1108 of
Regulation AB. Such information shall include, at a
minimum:
(A) the
Servicer’s form of organization;
(B) a
description of how long the Servicer has been servicing residential mortgage
loans; a general discussion of the Servicer’s experience in servicing assets of
any type as well as a more detailed discussion of the Servicer’s experience in,
and procedures for, the servicing function it will perform under this Agreement
and any Reconstitution Agreements; information regarding the size, composition
and growth of the Servicer’s portfolio of residential mortgage loans of a type
similar to the Mortgage Loans and information on factors related to the Servicer
that may be material, in the good faith judgment of the Purchaser, to any
analysis of the servicing of the Mortgage Loans or the related asset-backed
securities, as applicable, including, without limitation:
(1) whether
any prior securitizations of mortgage loans of a type similar to the Mortgage
Loans involving the Servicer have defaulted or experienced an early amortization
or other performance triggering event because of servicing during the three-year
period immediately preceding the related Securitization
Transaction;
(2) the
extent of outsourcing the Servicer utilizes;
(3) whether
there has been previous disclosure of material noncompliance with the applicable
servicing criteria with respect to other securitizations of residential mortgage
loans involving the Servicer as a servicer during the three-year period
immediately preceding the related Securitization Transaction;
-51-
(4) whether
the Servicer has been terminated as servicer in a residential mortgage loan
securitization, either due to a servicing default or to application of a
servicing performance test or trigger; and
(5) such
other information as the Purchaser may reasonably request for the purpose of
compliance with Item 1108(b)(2) of Regulation AB;
(C) a
description of any material changes during the three-year period immediately
preceding the related Securitization Transaction to the Servicer’s policies or
procedures with respect to the servicing function it will perform under this
Agreement and any Reconstitution Agreements for mortgage loans of a type similar
to the Mortgage Loans;
(D) information
regarding the Servicer’s financial condition, to the extent that there is a
material risk that an adverse financial event or circumstance involving the
Servicer could have a material adverse effect on the performance by the Servicer
of its servicing obligations under this Agreement or any Reconstitution
Agreement;
(E) information
regarding advances made by the Servicer on the Mortgage Loans and the Servicer’s
overall servicing portfolio of residential mortgage loans for the three-year
period immediately preceding the related Securitization Transaction, which
may
be limited to a statement by an authorized officer of the Servicer to the effect
that the Servicer has made all advances required to be made on residential
mortgage loans serviced by it during such period, or, if such statement would
not be accurate, information regarding the percentage and type of advances
not
made as required, and the reasons for such failure to advance;
(F) a
description of the Servicer’s processes and procedures designed to address any
special or unique factors involved in servicing loans of a similar type as
the
Mortgage Loans;
(G) a
description of the Servicer’s processes for handling delinquencies, losses,
bankruptcies and recoveries, such as through liquidation of mortgaged
properties, sale of defaulted mortgage loans or workouts; and
(H) information
as to how the Servicer defines or determines delinquencies and charge-offs,
including the effect of any grace period, re-aging, restructuring, partial
payments considered current or other practices with respect to delinquency
and
loss experience.
(d) If
so requested by the Purchaser for the purpose of satisfying its reporting
obligation under the Exchange Act with respect to any class of asset-backed
securities, the Servicer shall (or shall cause each Subservicer and Third-Party
Originator to) (i) notify the Purchaser in writing of (A) any material
litigation or governmental proceedings pending against the Servicer, any
Subservicer or any Third-Party Originator and (B) any affiliations or
relationships that develop following the closing date of a Securitization
Transaction between the Servicer, any Subservicer or any Third-Party Originator
and any of the parties specified in clause
-52-
(D)
of
paragraph (a) of this Section (and any other parties identified in writing
by
the requesting party) with respect to such Securitization Transaction, and
(ii)
provide to the Purchaser a description of such proceedings, affiliations or
relationships.
(e) As
a condition to the succession to the Servicer or any Subservicer as servicer
or
subservicer under this Agreement or any Reconstitution Agreement by any Person
(i) into which the Servicer or such Subservicer may be merged or consolidated,
or (ii) which may be appointed as a successor to the Servicer or any
Subservicer, the Servicer shall provide to the Purchaser, at least fifteen
(15)
calendar days prior to the effective date of such succession or appointment,
(x)
written notice to the Purchaser of such succession or appointment and (y) in
writing and in form and substance reasonably satisfactory to the Purchaser,
all
information reasonably requested by the Purchaser in order to comply with its
reporting obligation under Item 6.02 of Form 8-K with respect to any class
of
asset-backed securities.
(f) In
addition to such information as the Servicer, as servicer, is obligated to
provide pursuant to other provisions of this Agreement, if so requested by
the
Purchaser, the Servicer shall provide such information reasonably available
to
the Servicer regarding the performance or servicing of the Mortgage Loans as
is
reasonably required to facilitate preparation of distribution reports in
accordance with Item 1121 of Regulation AB.
(g) The
Servicer shall be deemed to represent to the Purchaser, as of the date on which
information is first provided to the Purchaser under this Subsection 11.19
that, except as disclosed in writing to the Purchaser prior to such
date: (i) the Servicer is not aware and has not received notice that
any default, early amortization or other performance triggering event has
occurred as to any other securitization due to any act or failure to act of
the
Servicer; (ii) the Servicer has not been terminated as servicer in a residential
mortgage loan securitization, either due to a servicing default or to
application of a servicing performance test or trigger; (iii) no material
noncompliance with the applicable servicing criteria with respect to other
securitizations of residential mortgage loans involving the Servicer as servicer
has been disclosed or reported by the Servicer; (iv) no material changes to
the
Servicer’s policies or procedures with respect to the servicing function it will
perform under this Agreement and any Reconstitution Agreement for mortgage
loans
of a type similar to the Mortgage Loans have occurred during the three-year
period immediately preceding the related Securitization Transaction; (v) there
are no aspects of the Servicer’s financial condition that could have a material
adverse effect on the performance by the Servicer of its servicing obligations
under this Agreement or any Reconstitution Agreement; (vi) there are no material
legal or governmental proceedings pending (or known to be contemplated) against
the Servicer, any Subservicer or any Third-Party Originator; and (vii) there
are
no affiliations, relationships or transactions relating to the Servicer, any
Subservicer or any Third-Party Originator with respect to any Securitization
Transaction and any party thereto identified of a type described in Item 1119
of
Regulation AB.
(h) If
so requested by the Purchaser on any date following the date on which
information is first provided to the Purchaser under this Subsection 11.19, the
Servicer shall, within five (5) Business Days following such request, confirm
in
writing the accuracy of the representations and warranties set forth in
paragraph (g) of this Section or, if any such
-53-
representation
and warranty is not accurate as of the date of such request, provide reasonably
adequate disclosure of the pertinent facts, in writing, to the requesting
party.
Subsection
11.20 Annual Statement
as to
Compliance; Report on Assessment of Compliance and
Attestation. (a) On or before March 1 of each calendar year,
commencing in 2007, the Servicer shall:
(i) deliver
to the Purchaser a statement of compliance addressed to the Purchaser and signed
by an authorized officer of the Servicer, to the effect that (x) a review of
the
Servicer’s activities during the immediately preceding calendar year (or
applicable portion thereof) and of its performance under this Agreement and
any
applicable Reconstitution Agreement during such period has been made under
such
officer’s supervision, and (y) to the best of such officers’ knowledge, based on
such review, the Servicer has fulfilled all of its obligations under this
Agreement and any applicable Reconstitution Agreement in all material respects
throughout such calendar year (or applicable portion thereof) or, if there
has
been a failure to fulfill any such obligation in any material respect,
specifically identifying each such failure known to such officer and the nature
and the status thereof;
(ii) deliver
to the Purchaser a report (in form and substance reasonably satisfactory to
the
Purchaser) regarding the Servicer’s assessment of compliance with the Servicing
Criteria during the immediately preceding calendar year, as required under
Rules
13a-18 and 15d-18 of the Exchange Act and Item 1122 of Regulation
AB. Such report shall be addressed to the Purchaser and signed by an
authorized officer of the Servicer, and shall address each of the Servicing
Criteria specified on a certification substantially in the form of Exhibit
17
hereto delivered to the Purchaser concurrently with the execution of this
Agreement;
(iii) deliver
to the Purchaser a report of a registered public accounting firm reasonably
acceptable to the Purchaser that attests to, and reports on, the assessment
of
compliance made by the Servicer and delivered pursuant to the preceding
paragraph. Such attestation shall be in accordance with Rules
1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act and the
Exchange Act;
(iv) cause
each Subservicer, and each Subcontractor determined by the Servicer pursuant
to
Subsection
11.24(b) to be “participating in the servicing function” within the
meaning of Item 1122 of Regulation AB, to deliver to the Purchaser an assessment
of compliance and accountants’ attestation as and when provided in paragraphs
(a) and (b) of this Section; and
(v) deliver
to the Purchaser and any other Person that will be responsible for signing
the
certification (a “Sarbanes Certification”) required by Rules 13a-14(d) and
15d-14(d) under the Exchange Act (pursuant to Section 302 of the Xxxxxxxx-Xxxxx
Act of 2002) on behalf of an asset-backed issuer with respect to a
Securitization Transaction a certification in the form attached hereto as
Exhibit 16.
The
Servicer acknowledges that the parties identified in clause (a)(v) above may
rely on the certification provided by the Servicer pursuant to such clause
in
signing a Sarbanes Certification and filing such with the
Commission.
-54-
(b) Each
assessment of compliance provided by a Subservicer pursuant to Subsection
11.20(a)(ii) shall address each of the Servicing Criteria specified on a
certification substantially in the form of Exhibit 17 hereto delivered to the
Purchaser concurrently with the execution of this Agreement or, in the case
of a
Subservicer subsequently appointed as such, on or prior to the date of such
appointment. An assessment of compliance provided by a Subcontractor
pursuant to this Subsection
11.20(a)(iv) need not address any elements of the Servicing Criteria
other than those specified by the Servicer pursuant to Subsection
11.24.
Subsection
11.21 Annual Independent
Public
Accountants’ Servicing Report or Attestation. On or before
March 10, 2006, the Servicer 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 the Purchaser to the effect that
such firm has, with respect to the Servicer’s overall servicing operations,
examined such operations in accordance with the requirements of the Uniform
Single Attestation Program for Mortgage Bankers, stating such firm’s conclusions
relating thereto.
Subsection
11.22 Servicer
Shall Provide
Access and Information as Reasonably Required. The Servicer
shall provide to the Purchaser, and for any Purchaser insured by FDIC or NAIC,
the supervisory agents and examiners of FDIC and OTS or NAIC, access to any
documentation regarding the Mortgage Loans which may be required by applicable
regulations. Such access shall be afforded without charge, but only
upon reasonable request, during normal business hours and at the offices of
the
Servicer.
In
addition, the Servicer shall furnish upon request by the Purchaser, during
the
term of this Agreement, such periodic, special or other reports or information,
whether or not provided for herein, as shall be necessary, reasonable and
appropriate with respect to the purposes of this Agreement and applicable
regulations. All such reports or information shall be provided by and
in accordance with all reasonable instructions and directions the Purchaser
may
require. The Servicer agrees to execute and deliver all such
instruments and take all such action as the Purchaser, from time to time, may
reasonably request in order to effectuate the purposes and to carry out the
terms of this Agreement.
Subsection
11.23 Transfer
of
Servicing.
On
the
related Transfer Date, if any, the Purchaser, or its designee, shall assume
all
servicing responsibilities related to, and the Seller cease all servicing
responsibilities related to, the related Mortgage Loans subject to such Transfer
Date. On or prior to the related Transfer Date, the Seller shall, at
its sole cost and expense, take such steps as may be necessary or appropriate
to
effectuate and evidence the transfer of the servicing of the related Mortgage
Loans to the Purchaser, or its designee, including but not limited to the
following:
(a) Notice
to
Mortgagors. The Seller shall mail to the Mortgagor of each
related Mortgage Loan a letter advising such Mortgagor of the transfer of the
servicing of the related Mortgage Loan to the Purchaser, or its designee, in
accordance with the Xxxxxxxx Xxxxxxxx National Affordable Housing Act of 1990;
provided, however, the content and format of the
-55-
letter
shall have the prior approval of the Purchaser. The Seller shall
provide the Purchaser with copies of all such related notices no later than
the
related Transfer Date.
(b) Notice
to Taxing Authorities
and Insurance Companies. The Seller shall transmit to the
applicable taxing authorities and insurance companies (including primary
mortgage insurance policy insurers, if applicable) and/or agents, notification
of the transfer of the servicing to the Purchaser, or its designee, and
instructions to deliver all notices, tax bills and insurance statements, as
the
case may be, to the Purchaser from and after the related Transfer
Date. The Seller shall provide the Purchaser with copies of all such
notices no later than the related Transfer Date.
(c) Delivery
of Servicing
Records. The Seller shall forward to the Purchaser, or its
designee, all servicing records and the Servicing File in the Seller’s
possession relating to each related Mortgage Loan.
(d) Escrow
Payments. The Seller shall provide the Purchaser, or its
designee, with immediately available funds by wire transfer in the amount of
the
net Escrow Payments and suspense balances and all loss draft balances associated
with the related Mortgage Loans. The Seller shall provide the
Purchaser with an accounting statement, in electronic format acceptable to
the
Purchaser in its sole discretion, of Escrow Payments and suspense balances
and
loss draft balances sufficient to enable the Purchaser to reconcile the amount
of such payment with the accounts of the Mortgage
Loans. Additionally, the Seller shall wire transfer to the Purchaser
the amount of any agency, trustee or prepaid Mortgage Loan payments and all
other similar amounts held by the Seller.
(e) Payoffs
and
Assumptions. The Seller shall provide to the Purchaser, or its
designee, copies of all assumption and payoff statements generated by the Seller
on the related Mortgage Loans from the related Cut-off Date to the related
Transfer Date.
(f) Mortgage
Payments Received
Prior to Transfer Date. Prior to the related Transfer Date all
payments received by the Seller on each related Mortgage Loan shall be properly
applied by the Seller to the account of the particular Mortgagor.
(g) Mortgage
Payments Received
after Transfer Date. The amount of any related Monthly
Payments received by the Seller after the related Transfer Date shall be
forwarded to the Purchaser by overnight mail on the date of
receipt. The Seller shall notify the Purchaser of the particulars of
the payment, which notification requirement shall be satisfied if the Seller
forwards with its payment sufficient information to permit appropriate
processing of the payment by the Purchaser. The Seller shall assume
full responsibility for the necessary and appropriate legal application of
such
Monthly Payments received by the Seller after the related Transfer Date with
respect to related Mortgage Loans then in foreclosure or bankruptcy; provided,
for purposes of this Agreement, necessary and appropriate legal application
of
such Monthly Payments shall include, but not be limited to, endorsement of
a
Monthly Payment to the Purchaser with the particulars of the payment such as
the
account number, dollar amount, date received and any special Mortgagor
application instructions and the Seller shall comply with the foregoing
requirements with respect to all Monthly Payments received by the Seller after
the related Transfer Date.
-56-
(h) Misapplied
Payments. Misapplied payments shall be processed as
follows:
(i) All
parties shall cooperate in correcting misapplication errors;
(ii) The
party receiving notice of a misapplied payment occurring prior to the related
Transfer Date and discovered after such Transfer Date shall immediately notify
the other party;
(iii) If
a misapplied payment which occurred prior to the related Transfer Date cannot
be
identified and said misapplied payment has resulted in a shortage in a Custodial
Account or Escrow Account, the Seller shall be liable for the amount of such
shortage. The Seller shall reimburse the Purchaser for the amount of
such shortage within thirty (30) days after receipt of written demand therefor
from the Purchaser;
(iv) If
a misapplied payment which occurred prior to the related Transfer Date has
created an improper Purchase Price as the result of an inaccurate outstanding
principal balance, a check shall be issued to the party shorted by the improper
payment application within five (5) Business Days after notice thereof by the
other party; and
(v) Any
check issued under the provisions of this Subsection 11.23(h)
shall be accompanied by a statement indicating the corresponding Seller and/or
the Purchaser Mortgage Loan identification number and an explanation of the
allocation of any such payments.
(i) Books
and
Records. On the related Transfer Date, the books, records and
accounts of the Seller with respect to the related Mortgage Loans shall be
in
accordance with all applicable Purchaser requirements.
(j) Reconciliation. The
Seller shall, on or before the related Transfer Date, reconcile principal
balances and make any monetary adjustments required by the
Purchaser. Any such monetary adjustments will be transferred between
the Seller and the Purchaser as appropriate.
(k) IRS
Forms. The Seller shall or shall file all IRS forms 1099,
1099A, 1098 or 1041 and K-1 which are required to be filed on or before the
related Transfer Date in relation to the servicing and ownership of the related
Mortgage Loans. The Seller 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 Seller’s failure to comply with
this paragraph.
Subsection
11.24 Use of Subservicers
and
Subcontractors. The Servicer shall not hire or otherwise
utilize the services of any Subservicer to fulfill any of the obligations of
the
Servicer as servicer under this Agreement or any Reconstitution Agreement unless
the Servicer complies with the provisions of paragraph (a) of this
Section. The Servicer shall not hire or otherwise utilize the
services of any Subcontractor, and shall not permit any Subservicer to hire
or
otherwise utilize the services of any Subcontractor, to fulfill any of the
obligations of the Servicer as servicer under this Agreement or any
Reconstitution Agreement unless the Servicer complies with the provisions of
paragraph (b) of this Section.
-57-
(a) It
shall not be necessary for the Servicer to seek the consent of the Purchaser
to
the utilization of any Subservicer. The Servicer shall cause any
Subservicer used by the Servicer (or by any Subservicer) for the benefit of
the
Purchaser and to comply with the provisions of this Section and with Subsections 11.19(c),
(e),
(g)
and (h), 11.20
and 12.01 of this
Agreement to the same extent as if such Subservicer were the Servicer, and
to
provide the information required with respect to such Subservicer under Subsection 11.19(d)
of this Agreement. The Servicer shall be responsible for obtaining
from each Subservicer and delivering to the Purchaser any servicer compliance
statement required to be delivered by such Subservicer under Subsection 11.20, any
assessment of compliance and attestation required to be delivered by such
Subservicer under Subsection 11.20 and
any certification required to be delivered to the Person that will be
responsible for signing the Sarbanes Certification under Subsection 11.20 as
and when required to be delivered.
(b) It
shall not be necessary for the Servicer to seek the consent of the Purchaser
to
the utilization of any Subcontractor. The Servicer shall promptly
upon request provide to the Purchaser a written description (in form and
substance satisfactory to the Purchaser) of the role and function of each
Subcontractor utilized by the Servicer or any Subservicer, specifying (i) the
identity of each such Subcontractor, (ii) which (if any) of such Subcontractors
are “participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, and (iii) which elements of the Servicing Criteria will be
addressed in assessments of compliance provided by each Subcontractor identified
pursuant to clause (ii) of this paragraph.
As
a
condition to the utilization of any Subcontractor determined to be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, the Seller shall cause any such Subcontractor used by the Sevicer
(or by any Subservicer) for the benefit of the Purchaser to comply with the
provisions of Subsections 11.20 and
12.01
of this
Agreement to the same extent as if such Subcontractor were the
Seller. The Seller shall be responsible for obtaining from each
Subcontractor and delivering to the Purchaser any assessment of compliance
and
attestation required to be delivered by such Subcontractor under Subsection 11.20, in
each case as and when required to be delivered.
Section
12. The
Servicer.
Subsection
12.01 Indemnification;
Third Party
Claims; Remedies.
(a) The
Servicer agrees to indemnify and hold the Purchaser and any successor servicer
and their respective present and former directors, officers, employees and
agents harmless from any and all claims, losses, damages, penalties, fines,
forfeitures, legal fees and expenses (including, without limitation, any legal
fees and expenses, judgments or expenses relating to such liability, claim,
loss
or damage) and related costs, judgments, and any other costs, fees and expenses
that such parties may sustain in any way related to the Servicer’s
failure:
(i)
to
observe and perform any or all of Servicer’s duties, obligations, covenants,
agreements, warranties or representations contained in this Agreement or in
the
applicable Purchase Price and Terms Letter; or
-58-
(ii)
to
comply with all applicable requirements contained in this Agreement or the
applicable Purchase Price and Terms Letter with respect to the servicing of
the
Mortgage Loan and the transfer of servicing rights.
(b) The
Servicer shall indemnify the Purchaser, each affiliate of the Purchaser, and
each of the following parties participating in a Securitization
Transaction: each sponsor and issuing entity; each Person responsible
for the preparation, execution or filing of any report required to be filed
with
the Commission with respect to such Securitization Transaction, or for execution
of a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the
Exchange Act with respect to such Securitization Transaction; each broker dealer
acting as underwriter, placement agent or initial purchaser, each Person who
controls any of such parties (within the meaning of Section 15 of the Securities
Act and Section 20 of the Exchange Act); and the respective present and former
directors, officers, employees and agents of each of the foregoing, and shall
hold each of them harmless from and against any losses, damages, penalties,
fines, forfeitures, legal fees and expenses and related costs, judgments, and
any other costs, fees and expenses that any of them may sustain arising out
of
or based upon:
(i)(A) any
untrue statement of a material fact contained or alleged to be contained in
any
information, report, certification, accountants’ letter or other material
provided under Section
11 by or on behalf of the Servicer, or provided under Section 11 by
or on
behalf of any Subservicer, Subcontractor or Third-Party Originator
(collectively, the “Servicer Information”), or (B) the omission or alleged
omission to state in the Servicer Information a material fact required to be
stated in the Servicer Information or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, by way
of clarification, that clause (B) of this paragraph shall be construed
solely by reference to the Servicer Information and not to any other information
communicated in connection with a sale or purchase of securities, without regard
to whether the Servicer Information or any portion thereof is presented together
with or separately from such other information;
(ii) any
failure by the Servicer, any Subservicer, any Subcontractor or any Third-Party
Originator to deliver any information, report, certification, accountants’
letter or other material when and as required under Section 11, including
any failure by the Servicer to identify pursuant to Subsection 11.24(b)
any Subcontractor “participating in the servicing function” within the meaning
of Item 1122 of Regulation AB; or
(iii) any
breach by the Servicer of a representation or warranty set forth in Subsection 11.19(g)
or in a writing furnished pursuant to Subsection 11.19(h)
and made as of a date prior to the closing date of the related Securitization
Transaction, to the extent that such breach is not cured by such closing date,
or any breach by the Servicer of a representation or warranty in a writing
furnished pursuant to Subsection 11.19(h)
to the extent made as of a date subsequent to such closing date.
In
the
case of any failure of performance described in clause (b)(ii) of this Section,
the Servicer shall promptly reimburse the Purchaser, and each Person responsible
for the preparation, execution or filing of any report required to be filed
with
the Commission with
-59-
respect
to such Securitization Transaction, or for execution of a certification pursuant
to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to
such
Securitization Transaction, for all costs reasonably incurred by each such
party
in order to obtain the information, report, certification, accountants’ letter
or other material not delivered as required by the Servicer, any Subservicer,
any Subcontractor or any Third-Party Originator.
(c) (i)
Any failure by the Servicer, any Subservicer, any Subcontractor or any
Third-Party Originator to deliver any information, report, certification,
accountants’ letter or other material when and as required under Section 11, or any
breach by the Servicer of a representation or warranty set forth in Subsection 11.19(g)
or in a writing furnished pursuant to Subsection 11.19(h)
and made as of a date prior to the closing date of the related Securitization
Transaction, to the extent that such breach is not cured by such closing date,
or any breach by the Servicer of a representation or warranty in a writing
furnished pursuant to Subsection 11.19(h)
to the extent made as of a date subsequent to such closing date, shall, except
as provided in clause (ii) of this paragraph, immediately and automatically,
without notice or grace period, constitute an Event of Default with respect
to
the Servicer under this Agreement and any applicable Reconstitution Agreement,
and shall entitle the Purchaser, in its sole discretion to terminate the rights
and obligations of the Servicer as servicer under this Agreement and/or any
applicable Reconstitution Agreement without payment (notwithstanding anything
in
this Agreement or any applicable Reconstitution Agreement to the contrary)
of
any compensation to the Servicer; provided that to the extent
that any provision of this Agreement and/or any applicable Reconstitution
Agreement expressly provides for the survival of certain rights or obligations
following termination of the Servicer as servicer, such provision shall be
given
effect.
(ii) Any
failure by the Servicer, any Subservicer or any Subcontractor to deliver any
information, report, certification or accountants’ letter when and as required
under Subsection
11.20, including any failure by the Servicer to identify pursuant to
Subsection
11.24(b) any Subcontractor “participating in the servicing function”
within the meaning of Item 1122 of Regulation AB, which continues unremedied
for
ten calendar days after the date on which such information, report,
certification or accountants’ letter was required to be delivered shall
constitute an Event of Default with respect to the Servicer under this Agreement
and any applicable Reconstitution Agreement, and shall entitle the Purchaser,
in
its sole discretion to terminate the rights and obligations of the Servicer
as
servicer under this Agreement and/or any applicable Reconstitution Agreement
without payment (notwithstanding anything in this Agreement to the contrary)
of
any compensation to the Servicer; provided that to the extent
that any provision of this Agreement and/or any applicable Reconstitution
Agreement expressly provides for the survival of certain rights or obligations
following termination of the Servicer as servicer, such provision shall be
given
effect.
(iii) The
Servicer shall promptly reimburse the Purchaser (or any designee of the
Purchaser, such as a master servicer), for all reasonable expenses incurred
by
the Purchaser (or such designee), as such are incurred, in connection with
the
termination of the Servicer as servicer and the transfer of servicing of the
Mortgage Loans to a successor
-60-
servicer. The
provisions of this paragraph shall not limit whatever rights the Purchaser
may
have under other provisions of this Agreement and/or any applicable
Reconstitution Agreement or otherwise, whether in equity or at law, such as
an
action for damages, specific performance or injunctive relief.
The
Servicer immediately shall notify the Purchaser if a claim is made by a third
party with respect to this Agreement.
For
purposes of this Section, “Purchaser” shall mean the Person then acting as the
Purchaser under this Agreement and any and all Persons who previously were
“Purchasers” under this Agreement.
Promptly
after receipt by an indemnified party under this Subsection 12.01
of notice of the commencement of any action, such indemnified party will, if
a
claim in respect thereof is to be made against the indemnifying party under
this
Subsection 12.01,
notify the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve the indemnifying
party from any liability which it may have to any indemnified party under this
Subsection 12.01,
except to the extent that it has been prejudiced in any material respect, or
from any liability which it may have, otherwise than under this Subsection 12.01. In
case any such action is brought against any indemnified party and it notifies
the indemnifying party of the commencement thereof, the indemnifying party
will
be entitled to participate therein, and to the extent that it may elect by
written notice delivered to the indemnified party promptly after receiving
the
aforesaid notice from such indemnified party, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party; provided that
if
the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party or parties shall have reasonably
concluded that there may be legal defenses available to it or them and/or other
indemnified parties which are different from or additional to those available
to
the indemnifying party, the indemnified party or parties shall have the right
to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party
or
parties. Upon receipt of notice from the indemnifying party to such
indemnified party of its election so to assume the defense of such action and
approval by the indemnified party of counsel, the indemnifying party will not
be
liable to such indemnified party for expenses incurred by the indemnified party
in connection with the defense thereof unless (i) the indemnified party
shall have employed separate counsel in connection with the assertion of legal
defenses in accordance with the proviso to the next preceding sentence (it
being
understood, however, that the indemnifying party shall not be liable for the
expenses of more than one separate counsel (together with one local counsel,
if
applicable)), (ii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the action or
(iii) the indemnifying party has authorized in writing the employment of
counsel for the indemnified party at the expense of the indemnifying party;
and
except that, if clause (i) or (iii) is applicable, such liability shall be
only in respect of the counsel referred to in such clause (i) or
(iii).
Subsection
12.02 Merger or
Consolidation of
the Servicer. The Seller will keep in full effect its
existence, rights and franchises under the laws of its jurisdiction of
incorporation or organization, and will obtain and preserve its qualification
to
do business in each other
-61-
jurisdiction
in which such qualification is or shall be necessary to protect the validity
and
enforceability of this Agreement, or any of the Mortgage Loans and to perform
its duties under this Agreement.
Any
Person into which the Seller may be merged or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Seller
shall
be a party, or any Person succeeding to the business of the Seller, shall be
the
successor of the Seller hereunder, without the execution or filing of any paper
or any further act on the part of any of the parties hereto, anything herein
to
the contrary notwithstanding; provided, however, that the successor or surviving
Person shall be an institution whose deposits are insured by FDIC or a company
whose business is the origination and servicing of mortgage loans, unless
otherwise consented to by the Purchaser, which consent shall not be unreasonably
withheld, shall be qualified to service mortgage loans on behalf of FNMA or
FHLMC.
Subsection
12.03 Limitation
on Liability of
the Servicer and Others. The duties and obligations of the
Servicer shall be determined solely by the express provisions of this Agreement,
the Servicer shall not be liable except for the performance of such duties
and
obligations as are specifically set forth in this Agreement and no implied
covenants or obligations shall be read into this Agreement against the
Servicer. Neither the Servicer nor any of the directors, officers,
employees or agents of the Servicer shall be under any liability to the
Purchaser for any action taken or for refraining from the taking of any action
in accordance with Accepted Servicing Procedures and otherwise in good faith
pursuant to this Agreement or for errors in judgment; provided, however, that this
provision shall not protect the Servicer against any liability resulting from
any breach of any representation or warranty made herein, or from any liability
specifically imposed on the Servicer herein; and, provided, further, that this
provision shall not protect the Servicer against any liability that would
otherwise be imposed by reason of the willful misfeasance, bad faith or
negligence in the performance of duties or by reason of reckless disregard
of
the obligations or duties hereunder. The Servicer and any director,
officer, employee or agent of the Servicer may rely on any document of any
kind
which it in good faith reasonably believes to be genuine and to have been
adopted or signed by the proper authorities respecting any matters arising
hereunder. Subject to the terms of Subsection 12.01, the
Servicer shall have no obligation to appear with respect to, prosecute or defend
any legal action which is not incidental to the Servicer’s duty to service the
Mortgage Loans in accordance with this Agreement.
Subsection
12.04 Seller and
Servicer Not to
Resign. With respect to the retention of the Seller to service
the Mortgage Loans hereunder, the Seller acknowledges that the Purchaser has
acted in reliance upon the Seller’s independent status, the adequacy of its
servicing facilities, plan, personnel, records and procedures, its integrity,
reputation and financial standing and the continuance
thereof. Without in any way limiting the generality of this Section,
neither Seller nor Servicer shall assign this Agreement or the servicing
hereunder or delegate its rights or duties hereunder or any portion thereof,
or
sell or otherwise dispose of all or substantially all of its property or assets,
without the prior written approval of the Purchaser, which consent shall be
granted or withheld in the Purchaser’s sole discretion or upon the determination
that the Servicer’s duties hereunder are no longer permissible under applicable
law and such incapacity cannot be cured by the Servicer. Any such
determination permitting the unilateral resignation of the Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to
the
-62-
Purchaser,
which Opinion of Counsel shall be in form and substance acceptable to the
Purchaser. No such resignation or assignment shall become effective
until a successor has assumed the Servicer’s responsibilities and obligations
hereunder in accordance with Subsection 14.02.
Section
13. Default.
Subsection
13.01 Events of
Default. In case one or more of the following Events of
Default by the Servicer shall occur and be continuing:
(a) any
failure by the Servicer to remit to the Purchaser any payment required to be
made under the terms of this Agreement which continues unremedied for a period
of one (1) Business Day after the date upon which written notice of such
failure, requiring the same to be remedied, shall have been given to the
Servicer by the Purchaser;
(b) failure
by the Servicer to duly observe or perform, in any material respect, any other
covenants, obligations or agreements of the Servicer as set forth in this
Agreement which failure continues unremedied for a period of sixty (60)
days (or, in the case of (i) the annual assessment of servicing compliance
required under Subsection 11.20 in
the form of Exhibit 16, or (ii) the annual independent public accountants’
servicing report required under Subsection 11.21,
five (5) days) after the date on which written notice of such failure, requiring
the same to be remedied, shall have been given to the Servicer by the
Purchaser;
(c) a
decree or order of a court or agency or supervisory authority having
jurisdiction for the appointment of a conservator or receiver or liquidator
in
any insolvency, bankruptcy, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of
its
affairs, shall have been entered against the Servicer and such decree or order
shall have remained in force, undischarged or unstayed for a period of
sixty (60) days;
(d) the
Servicer shall consent to the appointment of a conservator or receiver or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshalling
of
assets and liabilities or similar proceedings of or relating to the Servicer
or
relating to all or substantially all of the Servicer’s property; or
(e) the
Servicer 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;
then,
and
in each and every such case, so long as an Event of Default shall not have
been
remedied, the Purchaser, by notice in writing to the Servicer, 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 the
rights and obligations of the Servicer under this Agreement and in and to the
Mortgage Loans and the proceeds thereof. Upon receipt by the Servicer
of such written notice from the Purchaser stating that it intends to terminate
the Servicer as a result of such Event of Default, all authority and power
of
the Servicer under this Agreement, whether with respect to the Mortgage Loans
or
otherwise, shall pass to and be vested in the successor appointed pursuant
to
Subsection 14.02. Upon
written request from the Purchaser, the Servicer shall, in accordance with
Subsection 11.23
prepare, execute and deliver
-63-
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, including, but not limited to, the transfer and endorsement or
assignment of the Mortgage Loans and related documents to the successor at
the
Servicer’s sole expense. The Servicer agrees to cooperate with the
Purchaser and such successor in effecting the termination of the Servicer’s
responsibilities and rights hereunder, including, without limitation, the
transfer to such successor for administration by it of all amounts which shall
at the time be credited by the Servicer to the Custodial Account or Escrow
Account or thereafter received with respect to the Mortgage Loans.
Subsection
13.02 Waiver of
Defaults. The Purchaser may waive any default by the Servicer
in the performance of its obligations hereunder and its
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.
Section
14. Termination.
Subsection
14.01 Termination. The
respective obligations and responsibilities of the Servicer, as servicer, shall
terminate upon (a) the distribution to the Purchaser of the final payment
or liquidation with respect to the last Mortgage Loan (or advances of same
by
the Servicer); (b) 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, (c) by mutual consent of
the
Servicer and the Purchaser in writing or (d) pursuant to Subsection 14.02 by
providing written notice to the Servicer at least 30 days prior to the related
Transfer Date. Upon written request from the Purchaser in connection
with any such termination, the Servicer shall prepare, execute and deliver,
any
and all documents and other instruments, place in the Purchaser’s possession all
Mortgage Files, and do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise, at the Purchaser’s sole expense. The
Servicer agrees to cooperate with the Purchaser and such successor in effecting
the termination of the Servicer’s responsibilities and rights hereunder as
servicer, including, without limitation, the transfer to such successor for
administration by it of all cash amounts which shall at the time be credited
by
the Servicer to the Custodial Account or Escrow Account or thereafter received
with respect to the Mortgage Loans.
Subsection
14.02 Termination
of the Servicer
Without Cause.
(a) Notwithstanding
anything herein to the contrary, the Purchaser may terminate the obligations
and
responsibilities of the Servicer
in its
capacity as Servicer, without cause, upon payment to the Servicer of a
termination fee equal to one and one half percent (1.5%) of the aggregate
outstanding principal balance of the Mortgage Loans as of the date of such
termination. The termination fee provided for in this Subsection 14.02
shall be paid by the Purchaser within ten (10) Business Days of any such
termination without cause by the Purchaser.
-64-
(b) In
the event that a Mortgage Loan (i) becomes delinquent for a period of ninety
(90) days or more (a “Delinquent Mortgage
Loan”) or (ii) becomes an REO Property, the Purchaser may, at its option,
terminate this Agreement with respect to such Delinquent Mortgage Loan or REO
Property without payment of a termination fee therefor upon twenty (20) days’
written notice to the Servicer; provided that upon termination of this Agreement
with respect to such Delinquent Loan or REO Property the Purchaser shall
reimburse the Servicer for all outstanding Servicing Advances or Servicing
Fees
related to such Delinquent Mortgage Loan.
Subsection
14.03 Successors
to the
Servicer. Prior to the termination of the Servicer’s
responsibilities and duties under this Agreement pursuant to Subsections 12.04,
13.01
or 14.01, the Purchaser
shall, (a) succeed to and assume all of the Servicer’s responsibilities,
rights, duties and obligations under this Agreement or (b) appoint a
successor which shall succeed to all rights and assume all of the
responsibilities, duties and liabilities of the Servicer under this Agreement
upon such termination. In connection with such appointment and
assumption, the Purchaser may make such arrangements for the compensation of
such successor out of payments on Mortgage Loans as it and such successor shall
agree. If the Servicer’s duties, responsibilities and liabilities
under this Agreement shall be terminated pursuant to the aforementioned
Subsections, the Servicer 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 Servicer pursuant to
the aforementioned Subsections shall not become effective until a successor
shall be appointed pursuant to this Subsection 14.03 and
shall in no event relieve the Seller of the representations and warranties
made
pursuant to Subsections 7.01
and 7.02 and
the remedies available to the Purchaser under Subsection 7.03,
it being understood and agreed that the provisions of such Subsections 7.01
and 7.02 shall
be applicable to the Seller notwithstanding any such resignation or termination
of the Servicer, or the termination of this Agreement.
Any
successor appointed as provided herein shall execute, acknowledge and deliver
to
the Servicer and to the Purchaser an instrument accepting such appointment,
whereupon such successor shall become fully vested with all the rights, powers,
duties, responsibilities, obligations and liabilities of the Servicer, with
like
effect as if originally named as a party to this Agreement. Any
termination or resignation of the Servicer or this Agreement pursuant to Subsections 12.04,
13.01,
14.01
or 14.02 shall not
affect any claims that the Purchaser may have against the Servicer arising
prior
to any such termination or resignation.
Upon
a
successor’s acceptance of appointment as such, the Servicer shall notify by mail
the Purchaser of such appointment.
Section
15. Cooperation
of Seller with a
Reconstitution. The Seller and the Purchaser agree that with
respect to some or all of the Mortgage Loans, after the related Closing Date,
on
one or more dates (each, a “Reconstitution Date”)
at the Purchaser’s sole option, the Purchaser may effect a sale (each, a “Reconstitution”) of
some or all of the Mortgage Loans then subject to this Agreement, without
recourse, to:
-65-
(a) Xxxxxx
Xxx under its Cash Purchase Program or MBS Program (Special Servicing Option)
(each, a “Xxxxxx Mae
Transfer”); or
(b) Xxxxxxx
Mac (the “Xxxxxxx Mac
Transfer”); or
(c) one
or more third party purchasers in one or more Whole Loan Transfers;
or
(d) one
or more trusts or other entities to be formed as part of one or more
Securitization Transactions.
The
Seller agrees to execute in connection with any Agency Transfer, any and all
reasonably acceptable pool purchase contracts, and/or agreements among the
Purchaser, the Seller, Xxxxxx Xxx or Xxxxxxx Mac (as the case may be) and any
servicer in connection with a Whole Loan Transfer, a seller’s warranties and
servicing agreement or a participation and servicing agreement in form and
substance reasonably acceptable to the parties, and in connection with a
Securitization Transaction, a pooling and servicing agreement in form and
substance reasonably acceptable to the parties or an Assignment and Recognition
Agreement substantially in the form attached hereto as Exhibit 15
(collectively, the agreements referred to herein are designated, the “Reconstitution
Agreements”), together with an opinion of counsel with respect to such
Reconstitution Agreements.
With
respect to each Whole Loan Transfer and each Securitization Transaction entered
into by the Purchaser, the Seller agrees in its capacity as Seller or Servicer
as applicable (1) to cooperate fully with the Purchaser and any prospective
purchaser with respect to all reasonable requests and due diligence procedures;
(2) to execute, deliver and perform all Reconstitution Agreements
reasonably required by the Purchaser; (3) to restate the representations
and warranties set forth in Section 7.02 as of the Reconstitution Date; (4)
to
restate the representations and warranties set forth in Section 7.01 as of
the
Reconstitution Date, modified to the extent necessary to accurately reflect
the
pool statistics of the Mortgage Loans as of the Reconstitution Date and any
event or circumstances existing subsequent to the related Closing Date and
(5)
make the representations and warranties set forth in the related
selling/servicing guide of the servicer, or such representations or warranties
as may be required by any rating agency or prospective purchaser of the related
securities or such Mortgage Loans, in connection with such Reconstitution,
in
each case, as of the applicable Reconsitution Date modified to the extent
necessary to accurately reflect the pool statistics of the Mortgage Loans as
of
the Reconstitution Date and any event or circumstances existing subsequent
to
the related Closing Date.
The
Seller shall provide to such servicer or issuer, as the case may be, and any
other participants or purchasers in such Reconstitution: (i) any
and all information and appropriate verification of information which may be
reasonably available to the Seller or its affiliates, whether through letters
of
its auditors and counsel or otherwise, as the Purchaser or any such other
participant shall reasonably request; and (ii) such reasonable and
additional representations, warranties, covenants, opinions of counsel, letters
from auditors, and certificates of public officials or officers of the Seller
or
the Servicer as are reasonably believed necessary by the Purchaser or any such
other participant. Seller shall also execute, deliver and
satisfy all conditions set forth in any indemnity agreement required by the
Purchaser or any such
-66-
participant,
including, without limitation, an Indemnification and Contribution Agreement
in
substantially the form attached hereto as Exhibit
3. Moreover, the Seller agrees to cooperate with all
reasonable requests made by the Purchaser to effect such Reconstitution
Agreements. The Seller shall indemnify the Purchaser, each affiliate
of the Purchaser participating in the Reconstitution and each Person who
controls the Purchaser or such affiliate and their respective present and former
directors, officers, employees and agents, and hold each of them harmless from
and against any losses, damages, penalties, fines, forfeitures, legal fees
and
expenses and related costs, judgments, and any other costs, fees and expenses
that each of them may sustain arising out of or based upon any untrue statement
or alleged untrue statement or alleged untrue statement of a material fact
contained in the information provided by the Seller regarding the Seller or
the
Servicer, the Seller’s or the Servicer’s servicing practices or performance of
the Mortgage Loans set forth in any offering document prepared in connection
with any Reconstitution, the Seller’s (or with respect to any Mortgage Loan not
originated by the Seller, the originator of such Mortgage Loan's) Static Pool
Information, the Mortgage Loans or the Underwriting Guidelines for use in any
offering document prepared in connection with any Reconstitution. For
purposes of the previous sentence, “Purchaser” shall mean the Person then acting
as the Purchaser under this Agreement and any and all Persons who previously
were “Purchasers” under this Agreement.
All
Mortgage Loans not sold or transferred pursuant to a Reconstitution shall remain
subject to this Agreement and shall continue to be serviced in accordance with
the terms of this Agreement, and with respect thereto this Agreement shall
remain in full force and effect.
Section
16. Notices. All
demands, notices and communications hereunder shall be in writing and shall
be
given via email, facsimile transmission or registered or certified mail to
the
person at the address set forth below:
|
(a)
|
if
to the Purchaser:
|
|
Xxxxxx
Xxxxxxx Mortgage Capital Inc.
|
|
1221
Avenue of the Xxxxxxxx
|
|
00xx
Xxxxx
|
|
Xxx
Xxxx, Xxx Xxxx 00000
|
|
Attention: Xxxxx
Xxxxxxxxxx - Whole Loan Operations
Manager
|
|
Fax: 000-000-0000
|
|
Email:
xxxxx.xxxxxxxxxx@xxxxxxxxxxxxx.xxx
|
|
with
copies to:
|
Xxxx Xxxxxxxx |
Xxxxxx Xxxxxxx – Servicing Oversight |
0000 X-Xxx Xxx |
Xxxxx 000 |
Xxxx Xxxxx, Xxxxxxx 00000 |
Fax: 000-000-0000 |
Email: xxxx.xxxxxxxx@xxxxxxxxxxxxx.xxx |
-00-
Xxxxx
Xxxxxx
Xxxxxx
Xxxxxxx - XXXX
0000
Xxxxxxxx
00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Fax:
000-000-0000
Email:
xxxxx.xxxxxx@xxxxxxxxxxxxx.xxx
(b) if
to the Servicer:
GreenPoint
Mortgage Funding, Inc.,
000
Xxxx
Xxxxxx Xxxxx
Xxxxxx,
XX 00000
Attention: Xxxxx
Xxxxx - Secondary Marketing Division
Fax: 000-000-0000
Email: xxxxx.xxxxx@xxxxxxxxxx.xxx
-68-
(c) if
to the Seller:
GreenPoint
Mortgage Funding, Inc.,
000
Xxxx
Xxxxxx Xxxxx
Xxxxxx,
XX 00000
Attention: Xxxxx
Xxxxx - Secondary Marketing Division
Fax: 000-000-0000
Email: xxxxx.xxxxx@xxxxxxxxxx.xxx
or
such
other address as may hereafter be furnished to the other party by like
notice. Any such demand, notice or communication hereunder shall be
deemed to have been received on the date delivered to or received at the
premises of the addressee (as evidenced, in the case of registered or certified
mail, by the date noted on the return receipt).
Section
17. Severability
Clause. Any part, provision representation or warranty of this
Agreement which is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall be ineffective, as to such jurisdiction,
to the extent of such prohibition or unenforceability without invalidating
the
remaining provisions hereof, and any such prohibition or unenforceability in
any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent
permitted by applicable law, the parties hereto waive any provision of law
which
prohibits or renders void or unenforceable any provision hereof. If
the invalidity of any part, provision, representation or warranty of this
Agreement shall deprive any party of the economic benefit intended to be
conferred by this Agreement, the parties shall negotiate, in good-faith, to
develop a structure the economic effect of which is nearly as possible the
same
as the economic effect of this Agreement without regard to such
invalidity.
Section
18. No
Partnership. Nothing herein contained shall be deemed or
construed to create a co-partnership or joint venture between the parties hereto
and the services of the Servicer shall be rendered as an independent contractor
and not as agent for the Purchaser.
Section
19. Counterparts. This
Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and
all such counterparts shall constitute one and the same instrument.
Section
20. Governing
Law Jurisdiction;
Consent to Service of Process. THIS AGREEMENT SHALL BE DEEMED
IN EFFECT WHEN A FULLY EXECUTED COUNTERPART THEREOF IS RECEIVED BY THE PURCHASER
IN THE STATE OF NEW YORK AND SHALL BE DEEMED TO HAVE BEEN MADE IN THE STATE
OF
NEW YORK. THIS AGREEMENT SHALL BE GOVERNED BY THE INTERNAL LAWS OF
THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ITS CHOICE OF LAW RULES AND
PRINCIPLES. EACH OF THE PURCHASER AND THE SELLER IRREVOCABLY (I)
SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK
AND
THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT
OF
NEW YORK FOR THE PURPOSE OF ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT;
(II) WAIVES, TO THE FULLEST
-69-
EXTENT
PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM IN ANY ACTION OR
PROCEEDING IN ANY SUCH COURT; (III) AGREES THAT A FINAL JUDGMENT IN ANY ACTION
OR PROCEEDING IN ANY SUCH COURT SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN
ANY
OTHER JURISDICTION BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED
BY
LAW; AND (IV) CONSENTS TO SERVICE OF PROCESS UPON IT BY MAILING A COPY THEREOF
BY CERTIFIED MAIL ADDRESSED TO IT AS PROVIDED FOR NOTICES
HEREUNDER.
Section
21. Mandatory
Delivery; Grant of
Security Interest.
The
sale
and delivery on the related Closing Date of the Mortgage Loans described on
the
related Mortgage Loan Schedule is mandatory from and after the date of the
execution of the related Purchase Price and Terms Letter, it being specifically
understood and agreed that each Mortgage Loan is unique and identifiable on
the
date hereof and that an award of money damages would be insufficient to
compensate the Purchaser for the losses and damages incurred by the Purchaser
(including damages to prospective purchasers of the Mortgage Loans) in the
event
of the Seller’s failure to deliver (i) each of the related Mortgage Loans
or (ii) one or more Qualified Substitute Mortgage Loans or (iii) one
or more Mortgage Loans otherwise acceptable to the Purchaser on or before the
related Closing Date. The Seller hereby grants to the Purchaser a
lien on and a continuing security interest in each Mortgage Loan and each
document and instrument evidencing each such Mortgage Loan to secure the
performance by the Seller of its obligations under the related Purchase Price
and Terms Letter, and the Seller agrees that it shall hold such Mortgage Loans
in custody for the Purchaser subject to the Purchaser’s (i) right to reject
any Mortgage Loan (or Qualified Substitute Mortgage Loan) under the terms of
this Agreement and to require another Mortgage Loan (or Qualified Substitute
Mortgage Loan) to be substituted therefor, and (ii) obligation to pay the
Purchase Price for the Mortgage Loans. All rights and remedies of the
Purchaser under this Agreement are distinct from, and cumulative with, any
other
rights or remedies under this Agreement or afforded by law or equity and all
such rights and remedies may be exercised concurrently, independently or
successively.
Section
22. Intention
of the
Parties. It is the intention of the parties that the Purchaser
is purchasing, and the Seller is selling the Mortgage Loans and not a debt
instrument of the Seller or another security. Accordingly, the
parties hereto each intend to treat the transaction for federal income tax
purposes as a sale by the Seller, and a purchase by the Purchaser, of the
Mortgage Loans. Moreover, the arrangement under which the Mortgage
Loans are held shall be consistent with classification of such arrangement
as a
grantor trust in the event it is not found to represent direct ownership of
the
Mortgage Loans. The Purchaser shall have the right to review the
Mortgage Loans and the related Mortgage Loan Files to determine the
characteristics of the Mortgage Loans which shall affect the federal income
tax
consequences of owning the Mortgage Loans and the Seller shall cooperate with
all reasonable requests made by the Purchaser in the course of such
review.
Section
23. Successors
and
Assigns.
This
Agreement shall bind and inure to the benefit of and be enforceable by the
Seller and the Purchaser and the respective permitted successors and assigns
of
the Seller and the successors and assigns of the Purchaser. This
Agreement shall not be assigned, pledged or
-70-
hypothecated
by the Seller to a third party without the prior written consent of the
Purchaser, which consent may be withheld by the Purchaser in its sole
discretion. This Agreement may be assigned, pledged or hypothecated
by the Purchaser in whole or in part, and with respect to one or more of the
Mortgage Loans, without the consent of the Seller. There shall be no
limitation on the number of assignments or transfers allowable by the Purchaser
with respect to the Mortgage Loans and this Agreement. In the event
the Purchaser assigns this Agreement, and the assignee assumes any of the
Purchaser’s obligations hereunder, the Seller acknowledges and agrees to look
solely to such assignee, and not to the Purchaser, for performance of the
obligations so assumed and the Purchaser shall be relieved from any liability
to
the Seller with respect thereto.
Section
24. Waivers. No
term or provision of this Agreement may be waived or modified unless such waiver
or modification is in writing and signed by the party against whom such waiver
or modification is sought to be enforced.
Section
25. Exhibits. The
exhibits to this Agreement are hereby incorporated and made a part hereof and
are an integral part of this Agreement.
Section
26. General Interpretive
Principles. For purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise
requires:
(a) the
terms defined in this Agreement have the meanings assigned to them in this
Agreement and include the plural as well as the singular, and the use of any
gender herein shall be deemed to include the other gender;
(b) accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles;
(c) references
herein to “Articles,” “Sections,” “Subsections,” “Paragraphs” and other
subdivisions without reference to a document are to designated Articles,
Sections, Subsections, Paragraphs and other subdivisions of this
Agreement;
(d) reference
to a Subsection without further reference to a Section is a reference to such
Subsection as contained in the same Section in which the reference appears,
and
this rule shall also apply to Paragraphs and other subdivisions;
(e) the
words “herein,” “hereof,” “hereunder” and other words of similar import refer to
this Agreement as a whole and not to any particular provision; and
(f) the
terms “include” and “including” shall mean without limitation by reason of
enumeration.
Section
27. Reproduction
of
Documents. This Agreement and all documents relating thereto,
including, without limitation, (a) consents, waivers and modifications
which may hereafter be executed, (b) documents received by any party at the
closing, and (c) financial statements, certificates and other information
previously or hereafter furnished, may be reproduced by any photographic,
photostatic, microfilm, micro-card, miniature photographic or other similar
process. The parties hereto agree that any such reproduction shall be
admissible in
-71-
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 hereto in the regular course of business, and that any enlargement,
facsimile or further reproduction of such reproduction shall likewise be
admissible in evidence.
Section
28. Amendment. This
Agreement may be amended from time to time by the Purchaser, the Seller and
the
Servicer by written agreement signed by the parties hereto.
Section
29. Confidentiality. Each
of the Purchaser, the Seller and the Servicer shall employ proper procedures
and
standards designed to maintain the confidential nature of the terms of this
Agreement, except to the extent: (a) the disclosure of which is
reasonably believed by such party to be required in connection with regulatory
requirements or other legal requirements relating to its affairs;
(b) disclosed to any one or more of such party’s employees, officers,
directors, agents, attorneys or accountants who would have access to the
contents of this Agreement and such data and information in the normal course
of
the performance of such Person’s duties for such party, to the extent such party
has procedures in effect to inform such Person of the confidential nature
thereof; (c) that is disclosed in a prospectus, prospectus supplement or
private placement memorandum relating to a securitization of the Mortgage Loans
by the Purchaser (or an affiliate assignee thereof) or to any Person in
connection with the resale or proposed resale of all or a portion of the
Mortgage Loans by such party in accordance with the terms of this Agreement;
and
(d) that is reasonably believed by such party to be necessary for the
enforcement of such party’s rights under this Agreement.
Notwithstanding
any other express or implied agreement to the contrary, each of the Purchaser,
the Seller and the Servicer agree and acknowledge that each of them and each
of
their employees, representatives, and other agents may disclose to any and
all
persons, without limitation of any kind, the tax treatment and tax structure
of
the transaction and all materials of any kind (including opinions or other
tax
analyses) that are provided to any of them relating to such tax treatment and
tax structure, except to the extent that confidentiality is reasonably necessary
to comply with U.S. federal or state securities laws. For purposes of
this paragraph, the terms "tax treatment" and "tax structure" have the meanings
specified in Treasury Regulation section 1.6011-4(c).
Section
30. Entire
Agreement. This Agreement constitutes the entire agreement and
understanding relating to the subject matter hereof between the parties hereto
and any prior oral or written agreements between them shall be deemed to have
merged herewith.
Section
31. Further
Agreements. The Seller, the Servicer and the Purchaser each
agree to execute and deliver to the other such reasonable and appropriate
additional documents, instruments or agreements as may be necessary or
appropriate to effectuate the purposes of this Agreement.
Section
32. No
Solicitation. 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 personally, by telephone or mail, solicit a Mortgagor
under any Mortgage Loan for the purpose of refinancing a Mortgage Loan, in
whole
or in part, without the prior written consent of the
Purchaser. Notwithstanding
-72-
the
foregoing, it is understood and agreed that the Seller, the Servicer or any
of
their respective affiliates:
(a) may
advertise its availability for handling refinancings of mortgages in its
portfolio, including the promotion of terms it has available for such
refinancings, through the sending of letters or promotional material, so long
as
it does not specifically target Mortgagors and so long as such promotional
material either is sent to the mortgagors for all of the mortgages in the
servicing portfolio of the Seller, the Servicer and any of their affiliates
(those it owns as well as those serviced for others);
(b) may
provide pay-off information and otherwise cooperate with individual mortgagors
who contact it about prepaying their mortgages by advising them of refinancing
terms and streamlined origination arrangements that are available;
and
(c) may
offer to refinance a Mortgage Loan made within thirty (30) days following
receipt by it of a pay-off request from the related Mortgagor.
Promotions
undertaken by the Seller or the Servicer or by any affiliate of the Seller
or
the Servicer which are directed to the general public at large (including,
without limitation, mass mailing based on commercially acquired mailing lists,
newspaper, radio and television advertisements), shall not constitute
solicitation under this Section 32.
Section
33. Waiver of
Jury
Trial. 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 OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
[Signature
Page Follows]
-73-
IN
WITNESS WHEREOF, the Purchaser, the Seller and the Servicer have caused their
names to be signed hereto by their respective officers thereunto duly authorized
on the date first above written.
XXXXXX
XXXXXXX MORTGAGE CAPITAL INC.
|
|||
|
By:
|
||
Name: | |||
Title: | |||
GREENPOINT
MORTGAGE FUNDING, INC.
|
|||
|
By:
|
||
Name: | |||
Title: | |||
EXHIBIT
1
MORTGAGE
LOAN DOCUMENTS
With
respect to each Mortgage Loan, the Mortgage Loan Documents shall consist of
the
following:
(a) the
original Mortgage Note bearing all intervening endorsements, endorsed “Pay to
the order of _________, without recourse” and signed in the name of the last
endorsee (the “Last Endorsee”) by an authorized officer. To the
extent that there is no room on the face of the Mortgage Notes for endorsements,
the endorsement may be contained on an allonge, if state law so allows and
the
Custodian is so advised by the Seller that state law so allows. If
the Mortgage Loan was acquired by the Seller in a merger, the endorsement must
be by “[Last Endorsee], successor by merger to [name of
predecessor]”. If the Mortgage Loan was acquired or originated by the
Last Endorsee while doing business under another name, the endorsement must
be
by “[Last Endorsee], formerly known as [previous name]”;
(b) the
original of any guarantee executed in connection with the Mortgage
Note;
(c) with
respect to Mortgage Loans that are not Co-op Loans, the original Mortgage with
evidence of recording thereon. With respect to any Co-op Loan, an
original or copy of the Security Agreement. If in connection with any
Mortgage Loan, the Seller cannot deliver or cause to be delivered the original
Mortgage with evidence of recording thereon on or prior to the Closing Date
because of a delay caused by the public recording office where such Mortgage
has
been delivered for recordation or because such Mortgage has been lost or because
such public recording office retains the original recorded Mortgage, the Seller
shall deliver or cause to be delivered to the Custodian, a photocopy of such
Mortgage, together with (i) in the case of a delay caused by the public
recording office, an Officer’s Certificate of the Seller (or certified by the
title company, escrow agent, or closing attorney) stating that such Mortgage
has
been dispatched to the appropriate public recording office for recordation
and
that the original recorded Mortgage or a copy of such Mortgage certified by
such
public recording office to be a true and complete copy of the original recorded
Mortgage will be promptly delivered to the Custodian upon receipt thereof by
the
Seller; or (ii) in the case of a Mortgage where a public recording office
retains the original recorded Mortgage or in the case where a Mortgage is lost
after recordation in a public recording office, a copy of such Mortgage
certified by such public recording office to be a true and complete copy of
the
original recorded Mortgage;
(d) the
originals of all assumption, modification, consolidation or extension
agreements, if any, with evidence of recording thereon;
(e) with
respect to Mortgage Loans that are not Co-op Loans, the original Assignment
of
Mortgage for each Mortgage Loan, in form and substance acceptable for recording
(except with respect to MERS Designated Loans). The Assignment of
Mortgage must be duly recorded only if recordation is either necessary under
applicable law or commonly required by private institutional mortgage investors
in the area where the Mortgaged Property is located or on direction of the
Purchaser as provided in this Agreement. If the Assignment of
Mortgage is to be
EXH.
1-1
recorded,
the Mortgage shall be assigned to the Purchaser. If the Assignment of
Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered
in
blank. If the Mortgage Loan was acquired by the Seller in a merger,
the Assignment of Mortgage must be made by “[Seller], successor by merger to
[name of predecessor]”. If the Mortgage Loan was acquired or
originated by the Seller while doing business under another name, the Assignment
of Mortgage must be by “[Seller], formerly known as [previous
name]”;
(f) with
respect to Mortgage Loans that are not Co-op Loans, the originals of all
intervening Assignments of Mortgage (if any) evidencing a complete chain of
assignment from the Seller to the Last Endorsee (or, in the case of a MERS
Designated Loan, MERS) with evidence of recording thereon, or if any such
intervening assignment has not been returned from the applicable recording
office or has been lost or if such public recording office retains the original
recorded Assignments of Mortgage, the Seller shall deliver or cause to be
delivered to the Custodian, a photocopy of such intervening assignment, together
with (i) in the case of a delay caused by the public recording office, an
Officers Certificate of the Seller (or certified by the title company, escrow
agent, or closing attorney) stating that such intervening assignment of mortgage
has been dispatched to the appropriate public recording office for recordation
and that such original recorded intervening assignment of mortgage or a copy
of
such intervening assignment of mortgage certified by the appropriate public
recording office to be a true and complete copy of the original recorded
intervening assignment of mortgage will be promptly delivered to the Custodian
upon receipt thereof by the Seller; or (ii) in the case of an intervening
assignment where a public recording office retains the original recorded
intervening assignment or in the case where an intervening assignment is lost
after recordation in a public recording office, a copy of such intervening
assignment certified by such public recording office to be a true and complete
copy of the original recorded intervening assignment;
(g) with
respect to Mortgage Loans that are not Co-op Loans, the original mortgagee
policy of title insurance or, in the event such original title policy is
unavailable, a certified true copy of the related policy binder or commitment
for title certified to be true and complete by the title insurance company,
in
either case to be delivered within 180 days following the related Closing
Date;
(h) the
original or, if unavailable, a copy of any security agreement, chattel mortgage
or equivalent document executed in connection with the Mortgage;
(i) with
respect to any Co-op Loan: (i) a copy of the Co-op Lease and the assignment
of
such Co-op Lease, with all intervening assignments showing a complete chain
of
title and an assignment thereof by Seller; (ii) the stock certificate together
with an undated stock power relating to such stock certificate executed in
blank; (iii) the recognition agreement of the interests of the mortgagee with
respect to the Co-op Loan by the residential cooperative housing corporation,
the stock of which was pledged by the related Mortgagor to the originator of
such Co-op Loan; and (iv) copies of the financial statement filed by the
originator as secured party and, if applicable, a filed UCC-3 assignment of
the
subject security interest showing a complete chain of title, together with
an
executed UCC-3 assignment of such security interest by the Seller in a form
sufficient for filing; and
(j) if
any of the above documents has been executed by a person holding a power of
attorney, an original or photocopy of such power certified by the
Seller to be a true and correct copy of the original.
EXHIBIT
2
CONTENTS
OF EACH MORTGAGE FILE
With
respect to each Mortgage Loan, the Mortgage File shall include each of the
following items, unless otherwise disclosed to the Purchaser on the data tape,
which shall be available for inspection by the Purchaser and which shall be
retained by the Servicer or delivered to the Purchaser:
(a)
|
Copies
of the Mortgage Loan Documents.
|
(b)
|
Residential
loan application.
|
(c)
|
Mortgage
Loan closing statement.
|
(d)
|
Verification
of employment and income, if required.
|
(e)
|
Verification
of acceptable evidence of source and amount of down
payment.
|
(f)
|
Credit
report on Mortgagor, in a form acceptable to either Xxxxxx Xxx
or Xxxxxxx
Mac.
|
(g)
|
Residential
appraisal report.
|
(h)
|
Photograph
of the Mortgaged Property and photographs of comparable
properties.
|
(i)
|
Survey
of the Mortgaged Property, unless a survey is not required by the
title
insurer.
|
(j)
|
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, home owner association declarations,
etc.
|
(k)
|
Copies
of all required disclosure statements.
|
(l)
|
If
applicable, termite report, structural engineer’s report, water potability
and septic certification.
|
(m)
|
Sales
Contract, if applicable.
|
(n)
|
Copy
of the owner’s title insurance policy or attorney’s opinion of title and
abstract of title, as applicable.
|
(o)
|
Evidence
of electronic notation of the hazard insurance policy, and, if
required by
law, evidence of the flood insurance
policy.
|
EXH.
2-1
EXHIBIT
3
FORM
OF INDEMNIFICATION AND
CONTRIBUTION AGREEMENT
This
INDEMNIFICATION AND CONTRIBUTION AGREEMENT (“Agreement”), dated as of [_______],
200_, among [________________] (the “Depositor”), a
[______________] corporation (the “Depositor”), Xxxxxx
Xxxxxxx Mortgage Capital Inc., a New York corporation (“Xxxxxx”) and
GreenPoint Mortgage Funding, Inc., a New York corporation (the
“Seller”).
W I T N E S S E T H:
WHEREAS,
the Depositor is acting as depositor and registrant with respect to the
Prospectus, dated [________________], and the Prospectus Supplement to the
Prospectus, [________________] (the “Prospectus
Supplement”), relating to [________________] Certificates (the “Certificates”)
to be
issued pursuant to a Pooling and Servicing Agreement, dated as of
[________________] (the “P&S”), among
the
Depositor, as depositor, [________________], as servicer (the “Servicer”), and
[________________], as trustee (the “Trustee”);
WHEREAS,
as an inducement to the Depositor to enter into the P&S, and
[____________________] (the “Underwriter[s]”) to
enter into the Underwriting Agreement, dated [____________________] (the “Underwriting
Agreement”) between the Depositor and the Underwriter[s], Seller has
agreed to provide for indemnification and contribution on the terms and
conditions hereinafter set forth;
WHEREAS,
Xxxxxx purchased from Seller certain of the Mortgage Loans underlying the
Certificates (the “Mortgage Loans”)
pursuant to a Fourth Amended and Restated Mortgage Loan Sale and Servicing
Agreement, dated as of December 1, 2005 (the “Sale and Servicing
Agreement”), by and between Xxxxxx and Seller; and
WHEREAS,
pursuant to Section 15 of the Sale and Servicing Agreement, the Seller has
agreed to provide indemnification for certain information.
NOW
THEREFORE, in consideration of the agreements contained herein, and other
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the Depositor, Xxxxxx and the Seller agree as
follows:
(1) Indemnification
and Contribution.
(a) The
Seller agrees to indemnify and hold harmless the Depositor, Xxxxxx, the
Underwriter[s] and their respective affiliates and their respective present
and
former directors, officers, employees and agents and each person, if any, who
controls the Depositor, Xxxxxx, the Underwriter[s] or such affiliates within
the
meaning of either Section 15 of the
EXH.
3-1
Securities
Act of 1933, as amended (the “1933 Act”), or
Section 20 of the Securities Exchange Act of 1934, as amended (the “1934 Act”), against
any and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the 1933 Act, the 1934 Act or
other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based in whole or in part upon any untrue statement
or alleged untrue statement of a material fact contained in the Prospectus
Supplement, Free Writing Prospectus or in the ABS Informational and
Computational Materials or any omission or alleged omission to state in the
Prospectus Supplement, Free Writing Prospectus or in the ABS Informational
and
Computational Materials a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in
which
they were made, not misleading, or any such untrue statement or omission or
alleged untrue statement or alleged omission made in any amendment of or
supplement to the Prospectus Supplement, Free Writing Prospectus or the ABS
Informational and Computational Materials and agrees to reimburse the Depositor,
Xxxxxx, the Underwriter[s] or such affiliates and each such officer, director,
employee, agent and controlling person promptly upon demand for any legal or
other expenses reasonably incurred by any of them in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that Seller
shall be liable in any such case only to the extent that any such loss, claim,
damage, liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged omission made
in
reliance upon and in conformity with the Seller Information. The foregoing
indemnity agreement is in addition to any liability which Seller may otherwise
have to the Depositor, Xxxxxx, the Underwriter[s], their affiliates or any
such
director, officer, employee, agent or controlling person of the Depositor,
Xxxxxx, the Underwriter[s] or their respective affiliates.
As
used
herein:
“Seller
Information”
means any information relating to Seller, the Mortgage Loans and/or
the
underwriting guidelines relating to the Mortgage Loans submitted by the Seller
for use in the Prospectus Supplement, Free Writing Prospectus or the ABS
Informational and Computational Materials.
“Free
Writing
Prospectus” means any written communication that constitutes a “free
writing prospectus,” as defined in Rule 405 under the 1933 Act.
“ABS
Informational and
Computational Materials” means any written communication as defined in
Item 1101(a) of Regulation AB under the 1933 Act and the 1934 Act, as may be
amended from time to time.
(b) Promptly
after receipt by any indemnified party under this Section 1 of
notice of any claim or the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against any indemnifying
party under this Section 1,
notify the indemnifying party in writing of the claim or the commencement of
that action; provided, however,
that the
failure to notify an indemnifying party shall not relieve it from any liability
which it may have under this Section 1 except
to the extent it has been materially prejudiced by such failure; and provided, further,
however,
that the
failure to notify any indemnifying party
shall
not
relieve it from any liability which it may have to any indemnified party
otherwise than under this Section 1.
If
any
such claim or action shall be brought against an indemnified party, and it
shall
notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it wishes, jointly with any
other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from
the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, except as provided in the following paragraph,
the indemnifying party shall not be liable to the indemnified party under this
Section 1
for any legal or other expenses subsequently incurred by the indemnified party
in connection with the defense thereof other than reasonable costs of
investigation.
Any
indemnified party shall have the right to employ separate counsel in any such
action and to participate in the defense thereof, but the fees and expenses
of
such counsel shall be at the expense of such indemnified party
unless: (i) the employment thereof has been specifically
authorized by the indemnifying party in writing; (ii) such indemnified
party shall have been advised by such counsel that there may be one or more
legal defenses available to it which are different from or additional to those
available to the indemnifying party and in the reasonable judgment of such
counsel it is necessary or appropriate for such indemnified party to employ
separate counsel; or (iii) the indemnifying party has failed to assume the
defense of such action and employ counsel reasonably satisfactory to the
indemnified party, in which case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel at
the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party,
it being understood, however, the indemnifying party shall not, in connection
with any one such action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations
or
circumstances, be liable for the reasonable fees and expenses of more than
one
separate firm of attorneys (in addition to local counsel) at any time for all
such indemnified parties.
Each
indemnified party, as a condition of the indemnity agreements contained in
this
Section 1,
shall cooperate with the indemnifying party in the defense of any such action
or
claim. No indemnifying party shall be liable for any settlement of any such
action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if there
be a
final judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against
any
loss or liability by reason of such settlement or judgment.
Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for reasonable fees
and
expenses of counsel, the indemnifying party agrees that it shall be liable
for
any settlement of any proceeding effected without its written consent if
(i) such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement.
(c) If
the indemnification provided for in this Section 1 is
unavailable to an indemnified party, then the indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages
or
liabilities, in such proportion as is appropriate to reflect the relative fault
of the indemnifying party and the indemnified party, respectively, in connection
with the statements or omissions that result in such losses, claims, damages
or
liabilities, as well as any other relevant equitable considerations. The
relative fault of the indemnified party and indemnifying party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state
a material fact relates to information supplied by such parties and their
relative knowledge, access to information and opportunity to correct or prevent
such statement or omission and any other equitable considerations.
(d) The
indemnity and contribution agreements contained in this Section 1 and
the representations and warranties set forth in Section 2 shall
remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by the
Depositor, Xxxxxx, the Underwriter[s], their respective affiliates, directors,
officers, employees or agents or any person controlling the Depositor, Xxxxxx,
the Underwriter[s] or any such affiliate, and (iii) acceptance of and
payment for any of the Offered Certificates.
(2) Representations
and
Warranties. Seller represents and warrants that:
(i) Seller
is validly existing and in good standing under the laws of its jurisdiction
of
formation or incorporation, as applicable, and has full power and authority
to
own its assets and to transact the business in which it is currently engaged.
Seller is duly qualified to do business and is in good standing in each
jurisdiction in which the character of the business transacted by it or any
properties owned or leased by it requires such qualification and in which the
failure so to qualify would have a material adverse effect on the business,
properties, assets or condition (financial or otherwise) of Seller;
(ii) Seller
is not required to obtain the consent of any other person or any consent,
license, approval or authorization from, or registration or declaration with,
any governmental authority, bureau or agency in connection with the execution,
delivery, performance, validity or enforceability of this
Agreement;
(iii) the
execution, delivery and performance of this Agreement by Seller will not violate
any provision of any existing law or regulation or any order decree of any
court
applicable to Seller or any provision of the charter or bylaws of Seller, or
constitute a material breach of any mortgage, indenture, contract or other
agreement to which Seller is a party or by which it may be bound;
(iv) (a) no
proceeding of or before any court, tribunal or governmental body is currently
pending or, (b) to the knowledge of Seller, threatened against Seller or
any of its properties or with respect to this Agreement or the Offered
Certificates, in either case, which would have a material adverse effect on
the
business, properties, assets or condition (financial or otherwise) of
Seller;
(v) Seller
has full power and authority to make, execute, deliver and perform this
Agreement and all of the transactions contemplated hereunder, and has taken
all
necessary corporate action to authorize the execution, delivery and performance
of this Agreement. When executed and delivered, this Agreement will constitute
the legal, valid and binding obligation of each of Seller 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, by the availability of
equitable remedies, and by limitations of public policy under applicable
securities law as to rights of indemnity and contribution thereunder;
and
(vi) this
Agreement has been duly executed and delivered by Seller.
(3) Notices. All
communications hereunder will be in writing and effective only on receipt,
and,
if sent to Seller, will be mailed, delivered or telegraphed and confirmed to
GreenPoint Mortgage Funding, Inc., 000 Xxxx Xxxxxx Xxxxx Xxxxxx, Xxxxxxxxxx
00000 Attention: Xxxxxx Xxxxxxx Mortgage Loan Trust 2005-4; if sent to XXXXXX,
xxxx be mailed, delivered or telegraphed and confirmed to Xxxxxx Xxxxxxx
Mortgage Capital Inc., 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxx Xxxxxxx Mortgage Loan Trust 2005-4; if to the
Depositor, will be mailed, delivered or telegraphed and confirmed to
[__________________] or if to the Underwriter[s], will be mailed, delivered
or
telegraphed and confirmed to [__________________].
(4) Miscellaneous. This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of New York without giving effect to the conflict of laws provisions
thereof. This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their successors and assigns and the controlling persons
referred to herein, and no other person shall have any right or obligation
hereunder. Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed
by
the party against whom enforcement of the change, waiver, discharge or
termination is sought. This Agreement may be executed in counterparts, each
of
which when so executed and delivered shall be considered an original, and all
such counterparts shall constitute one and the same instrument. Capitalized
terms used but not defined herein shall have the meanings provided in the
P&S.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective officers hereunto duly authorized, this __th day
of
[________].
[DEPOSITOR] | |||
|
By:
|
||
Name: | |||
Title: | |||
XXXXXX XXXXXXX
MORTGAGE
CAPITAL INC.
|
|||
|
By:
|
||
Name: | |||
Title: | |||
GREENPOINT MORTGAGE FUNDING, INC., | |||
|
By:
|
||
Name: | |||
Title: | |||
EXHIBIT
4
CUSTODIAL
ACCOUNT CERTIFICATION
_________
__, 200__
[_____________________]
hereby certifies that it has established the account described below as a
Custodial Account pursuant to Subsection 11.04 of the Fourth Amended and
Restated Mortgage Loan Sale and Servicing Agreement, dated as of December 1,
2005, Fixed and Adjustable Rate Mortgage Loans.
Title
of Account:
|
“GreenPoint
Mortgage Funding, Inc., in trust for Xxxxxx Xxxxxxx Mortgage Capital
Inc.
as Purchaser of Mortgage Loans and various Mortgagors.”
|
|
Account
Number:
|
__________________________
|
|
Address
of office or branch of
[_____________________]
at
which
the Custodial account is
maintained:
|
__________________________
__________________________
__________________________
|
|
GREENPOINT
MORTGAGE
FUNDING,
INC.,
|
|||
|
By:
|
||
Name: | |||
Title: | |||
EXH.
4-1
EXHIBIT
5
CUSTODIAL
ACCOUNT LETTER AGREEMENT
_________
__, 200__
To:
(the
“Depository”)
As
Servicer under the Fourth Amended and Restated Mortgage Loan Sale and Servicing
Agreement, dated as of December 1, 2005, we hereby authorize and request you
to
establish an account, as a Custodial Account, to be designated as “GreenPoint
Mortgage Funding, Inc., in trust for Xxxxxx Xxxxxxx Mortgage Capital Inc. as
Purchaser of Mortgage Loans and various Mortgagors.” All deposits in
the account shall be subject to withdrawal therefrom by order signed by the
Servicer. You may refuse any deposit which would result in violation
of the requirement that the account be fully insured as described
below. This letter is submitted to you in
duplicate. Please execute and return one original to us.
GREENPOINT
MORTGAGE
FUNDING,
INC.,
|
|||
|
By:
|
||
Name: | |||
Title: | |||
EXH.
5-1
The
undersigned, as Depository, hereby certifies that the above-described account
has been established under Account Number ____________________ at the office
of
the Depository indicated above, and agrees to honor withdrawals on such account
as provided above. The account will be insured to the maximum amount
permitted under applicable law by the Federal Deposit Insurance Corporation
through the Bank Insurance Fund (“BIF”) or the
Savings
Association Insurance Fund (“SAIF”).
[___________________________],
as
Depository
|
|||
|
By:
|
||
Name: | |||
Title: | |||
Date: | |||
EXH.
5-2
EXHIBIT
6
ESCROW
ACCOUNT CERTIFICATION
_________
__, 200__
[_____________________]
hereby certifies that it has established the account described below as an
Escrow Account pursuant to Subsection 11.06 of the Fourth Amended and Restated
Mortgage Loan Sale and Servicing Agreement, dated as of December 1, 2005, Fixed
and Adjustable Rate Mortgage Loans.
Title
of Account:
|
“GreenPoint
Mortgage Funding, Inc., in trust for Xxxxxx Xxxxxxx Mortgage
Capital Inc.
as Purchaser of Mortgage Loans and various Mortgagors.”
|
|
Account
Number:
|
__________________________
|
|
Address
of office or branch of
[_____________________]
at
which
the Escrow Account is
maintained:
|
__________________________
__________________________
__________________________
|
|
GREENPOINT
MORTGAGE
FUNDING,
INC.,
|
|||
|
By:
|
||
Name: | |||
Title: | |||
EXH.
6-1
EXHIBIT
7
ESCROW
ACCOUNT LETTER AGREEMENT
_________
__, 200__
To:
(the
“Depository”)
As
Servicer under the Fourth Amended and Restated Mortgage Loan Sale and Servicing
Agreement, dated as of December 1, 2005, we hereby authorize and request you
to
establish an account, as an Escrow Account, to be designated as “GreenPoint
Mortgage Funding, Inc., in trust for Xxxxxx Xxxxxxx Mortgage Capital Inc. as
Purchaser of Mortgage Loans and various Mortgagors.” All deposits in
the account shall be subject to withdrawal therefrom by order signed by the
Servicer. You may refuse any deposit which would result in violation
of the requirement that the account be fully insured as described
below. This letter is submitted to you in
duplicate. Please execute and return one original to us.
GREENPOINT
MORTGAGE
FUNDING,
INC.,
|
|||
|
By:
|
||
Name: | |||
Title: | |||
EXH.
7-1
The
undersigned, as Depository, hereby certifies that the above-described account
has been established under Account Number ____________________ at the office
of
the Depository indicated above, and agrees to honor withdrawals on such account
as provided above. The account will be insured to the maximum amount
permitted under applicable law by the Federal Deposit Insurance Corporation
through the Bank Insurance Fund (“BIF”) or the
Savings
Association Insurance Fund (“SAIF”).
[____________________],
as
Depository
|
|||
|
By:
|
||
Name: | |||
Title: | |||
Date: |
XXX.
00-0
XXXXXXX
0
XXXXXXXXXXXX
XXXXXXXXXX
XXX.
8-1
EXHIBIT
9
FORM
OF
MONTHLY REMITTANCE REPORT
(Available
upon request to the Seller.)
EXH.
9-1
EXHIBIT
10
FORM
OF
SELLER’S OFFICER’S CERTIFICATE
I,
____________________, hereby certify that I am the duly elected [Vice] President
of GreenPoint Mortgage Funding, Inc., a corporation organized under the laws
of
the State of New York (the “Company”) and further
as follows:
1. Attached
hereto as Exhibit 1 is a
true, correct and complete copy of the charter of the Company which is in full
force and effect on the date hereof and which has been in effect without
amendment, waiver, rescission or modification since ___________.
2. Attached
hereto as Exhibit 2 is a
true, correct and complete copy of the bylaws of the Company which are in effect
on the date hereof and which have been in effect without amendment, waiver,
rescission or modification since ___________.
3. Attached
hereto as Exhibit 3 is an
original certificate of good standing of the Company issued within ten days
of
the date hereof, and no event has occurred since the date thereof which would
impair such standing.
4. Attached
hereto as Exhibit 4 is a
true, correct and complete copy of the corporate resolutions of the Board of
Directors of the Company authorizing the Company to execute and deliver each
of
the Fourth Amended and Restated Mortgage Loan Sale and Servicing Agreement,
dated as of December 1, 2005, by and between Xxxxxx Xxxxxxx Mortgage Capital
Inc. (the “Purchaser”) and the Company (the “Sale and Servicing
Agreement”) and the
Custodial Agreement, dated as of September 1, 2003,
by and among the Company, the Purchaser and ______________[CUSTODIAN] (the
“Custodial
Agreement”) [and to endorse the Mortgage Notes and execute the
Assignments of Mortgages by original [or facsimile] signature], and such
resolutions are in effect on the date hereof and have been in effect without
amendment, waiver, rescission or modification since ____________.
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 Sale and
Servicing Agreement, the Custodial Agreement, the sale of the mortgage loans or
the consummation of the transactions contemplated by the agreements; 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 Sale and Servicing Agreement and the Custodial Agreement conflicts
or will conflict with or results or will result in a breach of or constitutes
or
will constitute a default under the charter or by-laws of the Company, the
terms
of any indenture or other agreement or instrument to which the Company is a
party or by which it is bound or to which it is subject, or any statute or
order, rule, regulations,
EXH.
10-1
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. To
the best of my knowledge, there is no action, suit, proceeding or investigation
pending or threatened against the Company which, in my judgment, either in
any
one instance or in the aggregate, may result in any material adverse change
in
the business, operations, financial condition, properties or assets of the
Company or in any material impairment of the right or ability of the Company
to
carry on its business substantially as now conducted or in any material
liability on the part of the Company or which would draw into question the
validity of the Sale and Servicing Agreement and the Custodial Agreement, or
the
mortgage loans or of any action taken or to be taken in connection with the
transactions contemplated hereby, or which would be likely to impair materially
the ability of the Company to perform under the terms of the Sale and Servicing
Agreement and the Custodial Agreement.
8. Each
person listed on Exhibit 5
attached hereto who, as an officer or representative of the Company, signed
(a) the Sale and Servicing Agreement, (b) the Custodial Agreement and
(c) any other document delivered or on the date hereof in connection with
any purchase described in the agreements set forth above was, at the respective
times of such signing and delivery, and is now, a duly elected or appointed,
qualified and acting officer or representative of the Company, who holds the
office set forth opposite his or her name on Exhibit 5, and
the signatures of such persons appearing on such documents are their genuine
signatures.
9. The
Company is duly authorized to engage in the transactions described and
contemplated in the Sale and Servicing Agreement and the Custodial
Agreement.
EXH.
10-2
IN
WITNESS WHEREOF, I have hereunto signed my name and affixed the seal of the
Company.
Dated:
|
||
By:
|
||
Name:
|
||
[Seal]
|
Title: [Vice]
President
|
I,
________________________, an [Assistant] Secretary of GreenPoint Mortgage
Funding, Inc., hereby certify that ____________ is the duly elected, qualified
and acting [Vice] President of the Company and that the signature appearing
above is [her] [his] genuine signature.
IN
WITNESS WHEREOF, I have hereunto signed my name.
Dated:
|
||
By:
|
||
Name:
|
||
Title:
|
||
[Assistant] Secretary |
EXH.
10-3
EXHIBIT
5
to
Company’s
Officer’s Certificate
NAME
|
TITLE
|
SIGNATURE
|
EXH.
10-4
EXHIBIT
11
FORM
OF
OPINION OF COUNSEL TO SELLER
______________2005
Re:
Ladies
and Gentlemen:
I
have
acted as counsel to GreenPoint Mortgage Funding, Inc., a New York corporation
(the “Company”), in connection with certain matters described in the
Agreements. In connection with rendering this opinion letter, I, or
attorneys working under my direction have examined, among other things,
originals, certified copies or copies otherwise identified as being true copies
of the following:
A.
|
Signed
copies of the Agreements;
|
|
B.
|
The
Company’s Certificate of Incorporation
|
|
C.
|
The
Company’s By-Laws; and
|
|
D.
|
Resolutions
adopted by the Board of Directors of the
Company.
|
For
the
purpose of rendering this opinion, I have made such documentary, factual and
legal examinations as I deemed necessary under the circumstances. As to factual
matters, I have relied upon statements, certificates and other assurances of
public officials and of officers and other representatives of the Company,
and
upon such other certificates as I deemed appropriate, which factual matters
have
not been independently established or verified by me. I have also assumed,
among
other things, the genuineness of all signatures, the legal capacity of all
natural persons, the authenticity of all documents submitted to me as originals,
and the conformity to original documents of all documents submitted to me as
copies and the authenticity of the originals of such copied
documents.
On
the
basis of and subject to the foregoing examination, and in reliance thereon,
and
subject to the assumptions, qualifications, exceptions and limitations expressed
herein, I am of the opinion that:
1. The
Company has been duly incorporated and is validly existing and in good standing
under the laws of the State of New York with corporate power and authority
to
own its properties and conduct its business as presently conducted by it. The
Company has the corporate power and authority to execute, deliver, and perform
its obligations under the Agreements.
XXX.
00-0
0. The
Agreements have been duly and validly authorized, executed and delivered by
the
Company.
3. The
Agreements constitute valid, legal and binding obligations of the Company,
enforceable against the Company in accordance with their respective
terms.
4. No
consent, approval, authorization or order of any United States federal or
California government authority on the part of the Company is required for
the
execution, delivery and performance by the Company of the Agreements, except
for
those consents, approvals, authorizations or orders which previously have been
obtained.
5. The
execution, delivery and performance of the Agreements will not, as of the
Closing Date, result in a violation of the Certificate of Incorporation or
By-Laws of the Company, or, to the best of my knowledge, result in a violation
of, or constitute a default under, (i) the terms of any indenture or other
agreement or instrument known to me to which the Company is a party or by which
it is bound, (ii) any California or United States federal statute or regulation
applicable to the Company, or (iii) any order of any State of California or
United States federal court, regulatory body, administrative agency or
governmental body having jurisdiction over the Company, except in any such
case
where the violation or default would not have a material adverse effect on
the
Company or its ability to perform its obligations under the
Agreements.
6. There
is no action, suit, proceeding or investigation pending or, to the best of
my
knowledge, threatened against the Company which, in my judgment, would draw
into
question the validity of the Agreements or which would be likely to impair
materially the ability of the Company to perform under the terms of the
Agreements.
The
opinions above are subject to the following additional assumptions, exceptions,
qualifications and limitations:
A. I
have assumed that all parties to the Agreements other than the Company have
all
requisite power and authority to execute, deliver and perform their respective
obligations under the Agreements, and that the Agreements have been duly
authorized by all necessary corporate action on the part of such parties, have
been executed and delivered by such parties and constitute the legal, valid
and
binding obligations of such parties.
B. My
opinion expressed in paragraph 3 above is subject to the qualifications that
(i)
the enforceability of the Agreements may be limited by the effect of laws
relating to (1) bankruptcy, reorganization, insolvency, moratorium or other
similar laws now or hereafter in effect relating to creditors’ rights generally,
including, without limitation, the effect of statutory or other laws regarding
fraudulent conveyances or preferential transfers, and (2) general principles
of
equity upon the specific enforceability of any of the remedies, covenants or
other provisions of the Agreements and upon the availability of injunctive
relief or other equitable remedies and the application of principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) as such principles relate to, limit or affect the enforcement
of creditors’ rights generally and the discretion of the court before which
any
EXH.
11-2
proceeding
for such enforcement may be brought; and (ii) I express no opinion herein with
respect to the validity, legality, binding effect or enforceability of
provisions for indemnification in the Agreements to the extent such provisions
may be held to be unenforceable as contrary to public policy.
C. My
opinion expressed in paragraph 5 above relating to violations of United States
federal and California statutes, regulations or orders applicable to the Company
is limited to such statutes, regulations or orders that in my experience are
typically applicable to a transaction of the nature contemplated by the
Agreements.
D. I
have assumed, without independent check or certification, that there are no
agreements or understandings among the Company and any other party, which would
expand, modify or otherwise affect the terms of the Agreements or the respective
rights or obligations of the parties thereunder.
I
am
admitted to practice in the State of California, and I render no opinion herein
as to matters involving or governed by the laws of any jurisdiction other than
the State of California and the federal laws of the United States of
America. I also express no opinion as to whether the laws of any
particular jurisdiction apply, and no opinion to the extent that the laws of
any
jurisdiction other than those identified above are applicable to the
Agreements.
This
opinion letter has been prepared and should be understood in accordance with
the
Legal Opinion
Principles, 53 Bus. Law. 831 (1998), and Guidelines for the
Preparation of
Closing Opinions, 57 Bus. Law. 345 (2001), of the Committee on Legal
Opinions, ABA Section of Business Law.
Very
truly yours,
____________________________
Xxxxx
X.
Xxxxxxx
General
Counsel
GreenPoint
Mortgage Funding, Inc.
EXH.
11-3
EXHIBIT
12
FORM
OF SECURITY RELEASE
CERTIFICATION
___________________,
_____
________________________
________________________
________________________
Attention: ___________________________
___________________________
Re: Notice
of Sale and Release
of Collateral
Dear
Sirs:
This
letter serves as notice that GreenPoint Mortgage Funding, Inc., a corporation
organized pursuant to the laws of the state of [___________] (the “Company”) has
committed to sell to Xxxxxx Xxxxxxx Mortgage Capital Inc. under a Fourth Amended
and Restated Mortgage Loan Sale and Servicing Agreement, dated as of December
1,
2005, certain mortgage loans originated by the Company. The Company
warrants that the mortgage loans to be sold to Xxxxxx Xxxxxxx Mortgage Capital
Inc. are in addition to and beyond any collateral required to secure advances
made by you to the Company.
The
Company acknowledges that the mortgage loans to be sold to Xxxxxx Xxxxxxx
Mortgage Capital Inc. shall not be used as additional or substitute collateral
for advances made by [____________]. Xxxxxx Xxxxxxx Mortgage Capital
Inc. understands that the balance of the Company’s mortgage loan portfolio may
be used as collateral or additional collateral for advances made by
[___________], and confirms that it has no interest therein.
EXH.
12-1
Exhibit
E
Execution
of this letter by [___________] shall constitute a full and complete release
of
any security interest, claim, or lien which [___________] may have against
the
mortgage loans to be sold to Xxxxxx Xxxxxxx Mortgage Capital Inc.
Very truly yours, | |||
|
By:
|
||
Name: | |||
Title: | |||
Date: |
Acknowledged and approved: | ||
By:
|
||
Name: | ||
Title: | ||
Date: |
EXH.
12-2
EXHIBIT
13
FORM
OF SECURITY RELEASE
CERTIFICATION
I. Release
of Security
Interest
The
financial institution named below hereby relinquishes any and all right, title
and interest it may have in all Mortgage Loans to be purchased by Xxxxxx Xxxxxxx
Mortgage Capital Inc. from the Company named below pursuant to that certain
Fourth Amended and Restated Mortgage Loan Sale and Servicing Agreement, dated
as
of December 1, 2005 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 the sale of such Mortgage Loans to Xxxxxx Xxxxxxx Mortgage
Capital Inc.
Name
and
Address of Financial Institution
________________________________
(Name)
________________________________
(Address)
By:_____________________________
EXH.
13-1
II. Certification
of
Release
The
Company named below hereby certifies to Xxxxxx Xxxxxxx Mortgage Capital Inc.
that, as of the date and time of the sale of the above-mentioned Mortgage Loans
to Xxxxxx Xxxxxxx Mortgage Capital Inc. the security interests in the Mortgage
Loans released by the above-named financial institution comprise all security
interests relating to or affecting any and all such Mortgage
Loans. The Company warrants that, as of such time, there are and will
be no other security interests affecting any or all of such Mortgage
Loans.
___________________________
By:___________________________
Title:________________________
Date:_________________________
EXH.
13-2
EXHIBIT
14
FORM
OF ASSIGNMENT AND
CONVEYANCE
On
this
___ day of __________, ____, GreenPoint Mortgage Funding, Inc. (“Seller”), as
(i) the Seller and Servicer under that certain Purchase Price and Terms
Letter, dated as of ___________, _____ (the “PPTL”), (ii) the
Seller and Servicer under that certain Fourth Amended and Restated Mortgage
Loan
Sale and Servicing Agreement, dated as of December 1, 2005 (the “Sale and Servicing
Agreement”) and, together with the PPTL, the “Agreements”)
does
hereby sell, transfer, assign, set over and convey to Xxxxxx Xxxxxxx Mortgage
Capital Inc. (“Purchaser”) as the
Purchaser under the Agreements, without recourse, but subject to the terms
of
the Agreements, all right, title and interest of, in and to the Mortgage Loans
listed on the Mortgage Loan Schedule attached hereto as Exhibit A (the
“Mortgage
Loans”), together with the Mortgage Files and all rights and obligations
arising under the documents contained therein. Each Mortgage Loan
subject to the Agreements was underwritten in accordance with, and conforms
to,
the Underwriting Guidelines attached hereto as Exhibit
C. Pursuant to Section 6 of the Sale and Servicing
Agreement, the Seller has delivered to the Custodian the documents for each
Mortgage Loan to be purchased as set forth in the Custodial
Agreement. The contents of each Servicing File required to be
retained by the Servicer to service the Mortgage Loans pursuant to the Sale
and
Servicing Agreement and thus not delivered to the Purchaser are and shall be
held in trust by the Seller in its capacity as Servicer for the benefit of
the
Purchaser as the owner thereof. The Servicer’s possession of any
portion of the Servicing File is at the will of the Purchaser for the sole
purpose of facilitating servicing of the related Mortgage Loan pursuant to
the
Sale and Servicing Agreement, and such retention and possession by the Servicer
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 or the Servicer shall immediately vest in the Purchaser
and shall be retained and maintained, in trust, by the Servicer at the will
of
the Purchaser in such custodial capacity only.
The
Mortgage Loan Package characteristics of the Mortgage Loans subject hereto
are
set forth on Exhibit B
hereto.
In
accordance with Section 6 of the Sale and Servicing Agreement, the
Purchaser accepts the Mortgage Loans listed on Exhibit A
attached hereto. Notwithstanding the foregoing the Purchaser does not
waive any rights or remedies it may have under the Agreements.
Capitalized
terms used herein and not otherwise defined shall have the meanings set forth
in
the Sale and Servicing Agreement.
[Signature
Page Follows]
XXX.
00-0
XXXXXXXXXX
MORTGAGE FUNDING,
INC.,
|
|||
|
By:
|
||
Name: | |||
Title: | |||
Accepted
and Agreed:
|
||
XXXXXX
XXXXXXX MORTGAGE CAPITAL INC.
|
||
By:
|
||
Name: | ||
Title: | ||
EXH.
14-2
EXHIBIT
A
TO
ASSIGNMENT AND CONVEYANCE
AGREEMENT
THE
MORTGAGE LOANS
XXX.
00-0
XXXXXXX
X
TO
ASSIGNMENT AND CONVEYANCE
AGREEMENT
REPRESENTATIONS
AND WARRANTIES WITH RESPECT TO
THE
POOL
CHARACTERISTICS OF EACH MORTGAGE LOAN PACKAGE
Pool
Characteristics of the Mortgage Loan Package as delivered on the related Closing
Date:
No
Mortgage Loan has: (1) an outstanding principal balance less than
$_________; (2) an origination date earlier than _ months prior to the related
Cut-off Date; (3) an LTV of greater than _____%; (4) a FICO Score of less than
___; or (5) a debt-to-income ratio of more than __%. Each Mortgage
Loan has a Mortgage Interest Rate of at least ___% per annum and an outstanding
principal balance less than $_________. Each Adjustable Rate Mortgage Loan
has
an Index of [_______].
EXH.
14-4
EXHIBIT
C
TO
ASSIGNMENT AND CONVEYANCE
AGREEMENT
UNDERWRITING
GUIDELINES
EXH.
14-5
EXHIBIT
15
FORM
OF
ASSIGNMENT AND RECOGNITION AGREEMENT
THIS
ASSIGNMENT AND RECOGNITION AGREEMENT, dated [____________ __, 20__] (“Agreement”), among
Xxxxxx Xxxxxxx Mortgage Capital Inc. (“Assignor”),
[____________________] (“Assignee”) and
[SELLER] (the “Company”):
For
and
in consideration of the sum of TEN DOLLARS ($10.00) and other valuable
consideration the receipt and sufficiency of which hereby are acknowledged,
and
of the mutual covenants herein contained, the parties hereto hereby agree as
follows:
Assignment
and
Conveyance
1. The
Assignor hereby conveys, sells, grants, transfers and assigns to the Assignee
all of the right, title and interest of the Assignor, as purchaser, in, to
and
under (a) those certain Mortgage Loans listed on the schedule (the “Mortgage Loan
Schedule”) attached hereto as Exhibit A (the “Mortgage
Loans”) and
(b) except as described below, that certain Fourth Amended and Restated Mortgage
Loan Sale and Servicing Agreement (the “Sale and Servicing
Agreement”), dated as of December 1, 2005 between the Assignor, as
purchaser (the “Purchaser”), and the
Company, as seller, solely insofar as the Sale and Servicing Agreement relates
to the Mortgage Loans.
The
Assignor specifically reserves and does not assign to the Assignee hereunder
any
and all right, title and interest in, to and under and any obligations of the
Assignor with respect to (a) Subsection 7.05 of
the Sale and Servicing Agreement or (b) any mortgage loans subject to the Sale
and Servicing Agreement which are not the Mortgage Loans set forth on the
Mortgage Loan Schedule and are not the subject of this Agreement.
Recognition
of the
Company
2. From
and after the date hereof (the “Securitization Closing
Date”), the Company shall and does hereby recognize that the Assignee
will transfer the Mortgage Loans and assign its rights under the Sale and
Servicing Agreement (solely to the extent set forth herein) and this Agreement
to [__________________] (the “Trust”) created
pursuant to a Pooling and Servicing Agreement, dated as of [__________, 200_]
(the “Pooling
Agreement”), among the Assignee, the Assignor, [___________________], as
trustee (including its successors in interest and any successor trustees under
the Pooling Agreement, the “Trustee”),
[____________________], as servicer (including its successors in interest and
any successor servicer under the Pooling Agreement, the “Servicer”). The
Company hereby acknowledges and agrees that from and after the date hereof
(i) the Trust will be the owner of the Mortgage Loans, (ii) the
Company shall look solely to the Trust for performance of any obligations of
the
Assignor insofar as they relate to the Mortgage Loans, (iii) the Trust
(including the Trustee and the Servicer acting on the Trust’s behalf) shall have
all the rights and remedies available to the Assignor, insofar as they relate
to
the Mortgage Loans, under the Sale and Servicing Agreement, including, without
limitation, the enforcement of the document delivery requirements set forth
in
Section 6 of the Sale and Servicing Agreement, and shall be entitled to
enforce all of the
EXH.
15-1
obligations
of the Company thereunder insofar as they relate to the Mortgage Loans, and
(iv) all references to the Purchaser, the Custodian or the Bailee under the
Sale and Servicing Agreement insofar as they relate to the Mortgage Loans,
shall
be deemed to refer to the Trust (including the Trustee and the Servicer acting
on the Trust’s behalf). Neither the Company nor the Assignor shall
amend or agree to amend, modify, waiver, or otherwise alter any of the terms
or
provisions of the Sale and Servicing Agreement which amendment, modification,
waiver or other alteration would in any way affect the Mortgage Loans or the
Company’s performance under the Sale and Servicing Agreement with respect to the
Mortgage Loans without the prior written consent of the Trustee.
Representations
and
Warranties of the Company
3. The
Company warrants and represents to the Assignor, the Assignee and the Trust
as
of the date hereof that:
(a) The
Company is duly organized, validly existing and in good standing under the
laws
of the jurisdiction of its incorporation;
(b) The
Company has full power and authority to execute, deliver and perform its
obligations under this Agreement and has full power and authority to perform
its
obligations under the Sale and Servicing Agreement. The execution by
the Company of this Agreement is in the ordinary course of the Company’s
business and will not conflict with, or result in a breach of, any of the terms,
conditions or provisions of the Company’s charter or bylaws or any legal
restriction, or any material agreement or instrument to which the Company is
now
a party or by which it is bound, or result in the violation of any law, rule,
regulation, order, judgment or decree to which the Company or its property
is
subject. The execution, delivery and performance by the Company of
this Agreement have been duly authorized by all necessary corporate action
on
part of the Company. This Agreement has been duly executed and
delivered by the Company, and, upon the due authorization, execution and
delivery by the Assignor and the Assignee, will constitute the valid and legally
binding obligation of the Company, enforceable against the Company in accordance
with its terms except as enforceability may be limited by bankruptcy,
reorganization, insolvency, moratorium or other similar laws now or hereafter
in
effect relating to creditors’ rights generally, and by general principles of
equity regardless of whether enforceability is considered in a proceeding in
equity or at law;
(c) No
consent, approval, order or authorization of, or declaration, filing or
registration with, any governmental entity is required to be obtained or made
by
the Company in connection with the execution, delivery or performance by the
Company of this Agreement; and
(d) There
is no action, suit, proceeding or investigation pending or to the Company's
knowledge, threatened against the Company, before any court, administrative
agency or other tribunal, which would draw into question the validity of this
Agreement or the Sale and Servicing Agreement, or which, either in any one
instance or in the aggregate, would result in any material adverse change in
the
ability of the Company to perform its
EXH.
15-2
obligations
under this Agreement or the Sale and Servicing Agreement, and the Company is
solvent.
4. Pursuant
to Section 15 of the Sale and Servicing Agreement, the Company hereby represents
and warrants, for the benefit of the Assignor, the Assignee and the Trust,
that
the representations and warranties set forth in Section 7.01 and Section 7.02
of
the Sale and Servicing Agreement are true and correct as of the date hereof
as
if such representations and warranties were made on the date hereof unless
otherwise specifically stated in such representations and
warranties.
Remedies
for Breach of
Representations and Warranties
5. The
Company hereby acknowledges and agrees that the remedies available to the
Assignor, the Assignee and the Trust (including the Trustee and the Servicer
acting on the Trust’s behalf) in connection with any breach of the
representations and warranties made by the Company set forth in Sections 3
and 4
hereof shall be as set forth in Subsection 7.03 of the Sale and Servicing
Agreement as if they were set forth herein (including without limitation the
repurchase and indemnity obligations set forth therein).
Miscellaneous
6. The
Assignee’s address for purposes of all notices and correspondence related to the
Mortgage Loans and the Purchase Agreement is:
[Assignee]
[Address]
Attention: [_______]
Telephone: [________]
Telecopy: [________]
7. This
Agreement shall be construed in accordance with the laws of the State of New
York, without regard to conflicts of law principles, and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
8. No
term or provision of this Agreement may be waived or modified unless such waiver
or modification is in writing and signed by the party against whom such waiver
or modification is sought to be enforced, with the prior written consent of
the
Trustee.
9. This
Agreement shall inure to the benefit of (i) the successors and assigns of the
parties hereto and (ii) the Trust (including the Trustee and the Servicer acting
on the Trust’s behalf). Any entity into which Assignor, Assignee or
Company may be merged or consolidated shall, without the requirement for any
further writing, be deemed Assignor, Assignee or Company, respectively,
hereunder.
10. Each
of this Agreement and the Sale and Servicing Agreement shall survive the
conveyance of the Mortgage Loans and the assignment of the Sale and Servicing
Agreement (to the extent assigned hereunder) by Assignor to Assignee and by
Assignee to the
XXX.
00-0
Xxxxx
and
nothing contained herein shall supersede or amend the terms of the Sale and
Servicing Agreement.
11. This
Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original and
all such counterparts shall constitute one and the same instrument.
12. In
the event that any provision of this Agreement conflicts with any provision
of
the Sale and Servicing Agreement with respect to the Mortgage Loans, the terms
of this Agreement shall control.
13. Capitalized
terms used in this Agreement (including the exhibits hereto) but not defined
in
this Agreement shall have the meanings given to such terms in the Sale and
Servicing Agreement.
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed by their
duly authorized officers as of the date first above written.
GREENPOINT
MORTGAGE FUNDING,
INC.,
|
|||
|
By:
|
||
Name:
|
|
||
Its:
|
|||
XXXXXX
XXXXXXX MORTGAGE
CAPITAL INC.
|
|||
|
By:
|
||
Name:
|
|
||
Its:
|
|||
EXH.
15-4
EXHIBIT
16
ANNUAL
CERTIFICATION
|
Re:
|
The
Forth Amended and
Restated Mortgage Loan Sale and Servicing Agreement dated as of December
1, 2005 (the “Agreement”), among Xxxxxx Xxxxxxx Mortgage Capital Inc. and
GreenPoint Mortgage Funding,
Inc.
|
I,
________________________________, the _______________________ of [NAME OF
COMPANY], certify to [the Purchaser], [the Depositor], and the [Master Servicer]
[Securities Administrator] [Trustee], and their officers, with the knowledge
and
intent that they will rely upon this certification, that:
(1) I
have reviewed the servicer compliance statement of the Seller provided in
accordance with Item 1123 of Regulation AB (the “Compliance Statement”), the
report on assessment of the Seller’s compliance with the servicing criteria set
forth in Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided in
accordance with Rules 13a-18 and 15d-18 under Securities Exchange Act of 1934,
as amended (the “Exchange Act”) and Item 1122 of Regulation AB (the “Servicing
Assessment”), the registered public accounting firm’s attestation report
provided in accordance with Rules 13a-18 and 15d-18 under the Exchange Act
and
Section 1122(b) of Regulation AB (the “Attestation Report”), and all servicing
reports, officer’s certificates and other information relating to the servicing
of the Mortgage Loans by the Seller during 200[ ] that were delivered by the
Seller to the [Depositor] [Master Servicer] [Securities Administrator] [Trustee]
pursuant to the Agreement (collectively, the “Seller Servicing
Information”);
(2) Based
on my knowledge, the Seller Servicing Information, taken as a whole, does not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances under
which such statements were made, not misleading with respect to the period
of
time covered by the Seller Servicing Information;
(3) Based
on my knowledge, all of the Seller Servicing Information required to be provided
by the Seller under the Agreement has been provided to the [Depositor] [Master
Servicer] [Securities Administrator] [Trustee];
(4) I
am responsible for reviewing the activities performed by the Seller as servicer
under the Agreement, and based on my knowledge and the compliance review
conducted in preparing the Compliance Statement and except as disclosed in
the
Compliance Statement, the Servicing Assessment or the Attestation Report, the
Seller has fulfilled its obligations under the Agreement; and
(5) The
Compliance Statement required to be delivered by the Seller pursuant to the
Agreement, and the Servicing Assessment and Attestation Report required to
be
provided by the Seller and by any Subservicer or Subcontractor pursuant to
the
Agreement, have been provided to the [Depositor] [Master
Servicer]. Any material
EXH.
16-1
instances
of noncompliance described in such reports have been disclosed to the
[Depositor] [Master Servicer]. Any material instance of noncompliance
with the Servicing Criteria has been disclosed in such reports.
Date: | |||
|
By:
|
||
Name: | |||
Title: | |||
XXX.
00-0
XXXXXXX
00
XXXXXXXXX
XXXXXXXX TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by [the Seller] [Name of Subservicer]
shall address, at a minimum, the criteria identified as below as “Applicable
Servicing Criteria”:
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
|
Reference
|
Criteria
|
|
|
General
Servicing
Considerations
|
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
|
|
Cash
Collection and
Administration
|
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
XXX.
00-0
Xxxxxxxxx
Xxxxxxxx
|
Applicable
Servicing
Criteria
|
|
Reference
|
Criteria
|
|
|
Investor
Remittances and
Reporting
|
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
|
|
Pool
Asset
Administration
|
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the transaction
agreements or related mortgage loan documents.
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements
|